Tyler and Comcare [2003] AATA 839 (28 August 2003)

Last Updated: 28 August 2003

DECISION AND REASONS FOR DECISION [2003] AATA 839

ADMINISTRATIVE APPEALS TRIBUNAL N2001/1319

GENERAL ADMINISTRATIVE DIVISION

Re: Celeste Hammond (Tyler)

Applicant

And: Comcare (Department of Defence)

Respondent

DECISION

Tribunal: P.J. Lindsay, Senior Member, Dr M.E.C. Thorpe, Member

Date: 28 August 2003

Place: Sydney

Decision: The Tribunal varies the decision under review. The respondent is liable to pay compensation in accordance with the Safety, Rehabilitation and Compensation Act 1988 from 8 March 1991 in respect of Ms Hammond's mild chronic exertional compartment syndrome affecting the anterior compartments of both legs. In all other respects the decision under review is affirmed.

The respondent is liable to pay the applicant's costs of the proceedings in accordance with the General Practice Direction of the Tribunal.

. . . . . . . . .. . . . . . . . . . . . . . . .

Senior Member

© Commonwealth of Australia (2003)

CATCHWORDS

WORKERS COMPENSATION - INJURIES TO LEGS - WHETHER SYMPTOMS ATTRIBUTABLE TO SERVICE OR UNDERLYING PREDISPOSING CONDITION AGGRAVATED BY SERVICE - DECISION VARIED - RESPONDENT LIABLE TO PAY COMPENSATION IN RESPECT OF CHRONIC EXERTIONAL COMPARTMENT SYNDROME AFFECTING BOTH ANTERIOR COMPARTMENTS.

Safety, Rehabilitation and Compensation Act 1988 ss. 4, 14

Comcare v Moon [2003] FCA 569

Lees v Comcare (1999) 56 ALD 84

Australian Postal Corporation v Oudyn [2003] FCA 318

REASONS FOR DECISION

P.J. Lindsay, Senior Member, Dr M.E.C. Thorpe, Member

1. Ms Celeste Hammond (the applicant), formerly known as Celeste Tyler, has applied to the Tribunal for review of a decision by the Military Compensation and Rehabilitation Service (MCRS) as delegate of Comcare (the respondent), dated 13 July 2001. The decision revoked a determination of the MCRS dated 20 October 2000 that had disallowed a claim by the applicant for compensation under the Safety, Rehabilitation and Compensation Act 1988 (the Act) in respect of an injury to her legs. The delegate's reviewable decision stated as follows:

i) Liability is accepted in relation to your claim for an injury to your lower legs that occurred in the course of your employment, namely, bilateral patello-femoral dysfunction and chronic right ankle pain for which you first sought medical treatment on 10 January 1991 (`the injury').

ii) Liability to pay compensation pursuant to the SRCA in respect of the injury is ceased, on and from 30 November 1993.

2. At the hearing Mr C Jackson of counsel appeared for the applicant and Mr G Hickey of counsel represented the respondent. The applicant gave evidence in person and Dr D Humphries gave his evidence by telephone. The Tribunal had before it the statement and documents (T documents) lodged by the respondent in accordance with s.37 of the Administrative Appeals Tribunal Act 1975 and the exhibits tendered in evidence by the parties during the hearing.

3. In opening Mr Jackson informed the Tribunal that during her recruit training the applicant suffered from many problems in her lower limbs. The critical injury, and the only condition with which the application for review was concerned, was bilateral chronic exertional compartment syndrome. No claim was being made in respect of any permanent impairment resulting from an injury during service.

EVIDENCE

4. Ms Hammond was born on 11 April 1970. She left school at the end of Year 10 and then worked for a bank before joining the Royal Australian Air Force in September 1990. Soon after she spent eleven weeks in basic training. She gave evidence of regular drills including marching, long distance running and PT exercises. She said that she took short steps and therefore had difficulty with the required 60cm stride for marching. This problem caused her feet to hit the ground with greater impact. There were no general practice boots available when she started basic training and thus she had to wear her service dress shoes, which she said provided no support for her ankles. After about a couple of weeks of basic training, the fast marching and jogging caused a jarring of her ankles and she also began to roll her ankles. Ms Hammond said she had problems initially with her right ankle and then about a month later the left ankle was sore. She said she also developed shin soreness within a few weeks of recruit training. She had discomfort with her knees and her feet. She found standing while ironing caused pain, so she took to standing on a pillow.

5. There is a record of Ms Hammond's seeking treatment on 30 October 1990 for blisters on her heels (T4-7). She explained that she did not complain about her ankles or shins while at recruits because her period of training would be extended by a week for each day she had to take off. After finishing the basic training for recruits she was posted to Wagga in mid December 1990. An outpatient clinical record of 10 January 1991 noted patello-femoral dysfunction and tenderness of the right ankle. Physiotherapy was provided while the applicant was in Wagga and she was instructed not to run or jump. The record noted a chronic strain associated with the right ankle pain due to running in shoes instead of boots. Another outpatient clinical record for 6 March 1991 states (T4-8):

® leg pain: - knee; - upper tibia; - ankle. Last 6/52 since basic training.

On running -> pain sharp. Pain upper tibia + ankle.

Dull ache only [with] no activity.

Able to weight bear but -> pain.

O/E ® leg - .. tender behind patella.

- tender medial joint line ... -> tender upper tibia ...

-> needs x-rays -> bone scan ...

In cross-examination she agreed that her principal complaint in January 1991 was in relation to her right ankle. Ms Hammond insisted, however, that she also had shin soreness at the time and did mention it but it must not have been noted. She said that her shin pain was most intense around the time of finishing basic training.

6. Dr E Crocker of Nuclear Medicine and Ultrasound Associates provided a report to Dr Rizzo of Richmond Base Hospital on 13 March 1991 (T8) and after noting the applicant's continuing pain in the mid tibial region and bilateral foot discomfort stated as follows:

In view of the absence of exercise over the past 3 months the scan findings most likely represent a small healing of stress fracture involving the right tibia. No other significant pathology was evident.

Physiotherapy continued. A specialist consultation record dated 15 July 1991 (T10) noted that the applicant had pronating feet. She was fitted for orthotics and referred again for physiotherapy.

7. Ms Hammond took maternity leave from December 1991 and returned to Richmond base in April 1992. Another outpatient record, dated 30 July 1992 (T4-10) referred to a recurring problem with both knees. It also recorded that during her rookies she had twisted both ankles, both legs had suffered stress fractures and she had shin splints. This was the first note that referred to shin splints. Squatting, running and any jarring activity were noted as currently causing difficulty for her knees. Her voluntary discharge from the Air Force in November 1992 was due to difficulties she was having with childcare, not any physical problems. As part of the discharge process, she completed a report of injury (T12) noting the injury to be "painful legs" and the date of the injury being October 1990. She included the name and address of two Air Force personnel who were "witnesses to the injury and/or those who saw you immediately before or after occurrence". The applicant completed a claim for compensation dated 20 August 1992 (T13) stating that her legs were the part of the body affected by the injury and that she was doing recruit training at the time of the injury. She described the way that the injury happened as "drill & PT on bitumen in incorrect shoes (service shoes)".

8. On discharge she returned to Hobart and there had acupuncture to relieve the soreness in her legs, including her shins. She said she continued to perform the exercises suggested by the physiotherapist. In cross-examination she was asked whether she has sought treatment from her doctor for leg pain. Ms Hammond said that while she was living in Sydney, from about August 1993, she consulted a Dr Fong of the Tindale Family Practice. She consulted Dr Fong once about her legs. Her evidence was that, on being informed that the leg pain related to her period of service, Dr Fong's response was that he could not bulk bill her but instead she must first obtain approval from the Department of Defence to pay for her consultations. Ms Hammond said she made a couple of telephone enquiries of the Department and was informed that approval would not be given unless she had witnesses to her injury. Ms Hammond told the Tribunal that her financial position prevented her from paying for medical treatment and pursuing reimbursement at a later stage. She said she relied on the Department's oral advice until she consulted her solicitors some years later. Subsequently, Ms Hammond moved to Oakey, Queensland. While living there she used to exercise in a friend's swimming pool and this helped her legs. Having returned to live in Tasmania, she no longer exercises in a pool but uses hot and cold packs and over the counter muscle relaxants for relief.

9. In the years since leaving the Air Force Ms Hammond said she has had to alter her daily life so as not to aggravate the problems with her legs. While at school she was an active participant in hockey, softball and netball, but has had to give them up. She said her right ankle is her main problem. She does not run. Her knees cause difficulty while descending stairs and loose surfaces are apt to result in pain and rolling of the ankles. Her evidence was that after a short time walking on tiled flooring, such as in shopping malls, her shins become sore. Shin soreness causes her to avoid walking on hard surfaces. She cannot wear high heels. She said she would like to have treatment for her leg pain.

10. Ms Hammond is now working full-time as an office accounts manager. Before that, she has worked as a secretary.

11. It would appear that Ms Hammond did not pursue the claim for compensation that she lodged with the respondent in August 1992. However, the claim was reactivated by her letter to the respondent dated 21 January 2000 (T15) when she advised that her injury was worsening over time.

12. To assess Ms Hammond's claim the respondent arranged for her to be examined by Dr A Whittle, orthopaedic surgeon. In his report of 28 September 2000 (T20-33) Dr Whittle recorded a history of pain in her knees, ankles and feet starting from the time of her recruit training. After transfer to Wagga she commenced twice daily sessions of physiotherapy and strapping of her knees and electrical therapy. At interview she complained of bilateral lower limb pain which she felt was getting worse but she was not receiving any treatment. On examination Dr Whittle found no evidence of patello-femoral maltracking or crepitus in either knee. Pain on rotation of the knee was difficult to explain on an anatomical basis. There was full range of movement of the ankles and subtalar and tarsal joints. The description of pain in the feet and ankles was non-anatomical. Dr Whittle was of the view that the applicant's efforts at walking, ascending and descending stairs was submaximal despite her complaint of pain and difficulty with the exercises. In his report, Dr Whittle said the applicant suffers from diffuse lower limb pain with no definite pathological diagnosis being evident on assessment. Although he attributed 10 to 20 per cent of her condition to her service employment, Dr Whittle stated that the applicant would probably have suffered from her complaint regardless of her employment in the Air Force and he elaborated as follows:

I have some difficulty believing that a period of physical activity wearing inappropriate shoes would lead to complaints of this type persisting for a period of ten years afterwards. For this reason I am having some difficulty linking her employment with the Air Force to her ongoing complaints. ... I would suggest that any employment related effects of this condition, if present, ceased 12 months after her cessation of employment with the Air Force.

Referring to Comcare's Guide to the Assessment of Permanent Impairment, Dr Whittle found that no whole person impairment under either Table 9.2 `Lower Extremity' or Table 9.5 `Limb Function - Lower Limb' could be related to her period of service. He considered her fit for her pre-injury employment. In Dr Whittle's opinion it was unlikely that her condition would deteriorate in time. No further investigation or treatment was indicated. Based on Dr Whittle's assessment, the respondent informed Ms Hammond on 20 October 2000 (T21) of its determination that the evidence failed to establish that there is liability to pay compensation.

13. By letter dated 9 February 2001(T22) Ms Hammond's solicitors asked for an extension of time to obtain medical evidence to be submitted to the respondent's officer reviewing the determination of 20 October 2000. An extension to 15 June 2001 was granted but no further evidence in respect of the reconsideration was submitted by the applicant. On 13 July 2001, the respondent's delegate revoked the determination (T24). Instead liability was accepted for an injury to the applicant's lower legs. The injury was referred to in the reviewable decision of 13 July 2001 as "bilateral patello-femoral dysfunction and chronic right ankle pain for which you first sought medical treatment on 10 January 1991". Liability for the injury, however, ceased on and from 30 November 1993. That date was twelve months from the applicant's discharge from the Air Force. It was in line with the opinion of Dr Whittle who considered the employment related effects of the injury to be temporary in nature and would have ceased twelve months after cessation of the employment.

14. At the request of the respondent, Dr B Caldwell, orthopaedic surgeon, examined Ms Hammond on 25 January 2002 and provided two reports of the same date (Exhibit R1). Dr Caldwell noted from the March 1991 bone scan that the applicant had not suffered a stress fracture but in fact the findings represented shin splints that he said are often seen in compartment syndromes. After considering the history regarding her recruit training, Dr Caldwell diagnosed bilateral compartment syndrome, which he thought was probably persisting to the date of his examination. Dr Caldwell stated that compartment syndrome is a disorder of circulation in the compartments of the leg and is not caused by sport or marching " ... but is an underlying disorder intrinsic to the patient." The syndrome becomes apparent when the person engages in a high level of activity, constantly using the muscles in the anterior compartment which cause swelling and compromises the blood flow making them symptomatic when training. In his opinion, given the lack of particular symptoms at the time of recruit training from October to December 1990, it was almost impossible to determine whether her Air Force service has contributed to the bilateral compartment syndrome. He observed that bilateral compartment syndrome is a well recognised problem in the armed services, which is exacerbated by marching and usually made worse by wearing heavy boots. It does not lead to long term damage. Her current symptoms suggest that she has bilateral anterior compartment syndrome if she walks significant distances. Dr Caldwell considered that a person with bilateral compartment syndrome would have problems in their employment only if the job required high levels of activity or prolonged walking. In conclusion Dr Caldwell stated:

The employee's impairment is probably entirely attributable to a pre-existing condition or underlying condition. Her current situation is the natural progression of this condition. Therefore I would assess her permanent impairment attributable to the military as nil.

15. In another report dated 25 February 2002 (Exhibit R1) Dr Caldwell said he found it difficult to believe that ten years after her recruit training of a few months, the applicant's condition could be considered to be due to service. At the request of the respondent Dr Caldwell provided a further report on 1 May 2002 (Exhibit R2) where he explained compartment syndrome. In commenting about service having aggravated the condition, Dr Caldwell reported "However, when one stops the marching the aggravation ceases." Dr Caldwell again stated his opinion that the applicant's compartment syndrome is probably due to an underlying condition that was aggravated or brought out by the marching.

16. On 14 January 2003 Dr D Humphries, a fellow of the Australasian College of Sports Physicians, performed a standard, compartment pressure test on the applicant's legs. The results of the test (Exhibit A1) were the basis for Dr Humphries' conclusion that Ms Hammond has a mild chronic exertional compartment syndrome affecting both anterior compartments.

17. Dr Humphries provided the applicant's solicitors with a report dated 7 July 2003 (Exhibit A2). The history he took noted that all her symptoms started at the time of her recruit training in 1990. His examination found that Ms Hammond has sturdily built legs with relatively large anterior compartment muscles. There appeared to be some tenderness over the anterior compartment muscles particularly in the mid to upper area. Dr Humphries found no evidence of neurological or circulatory abnormality, and at any rate he considered such pathology to be common only in severe chronic exertional compartment syndrome. There was full range of movement in her knees and ankles. He concluded, moreover, that Ms Hammond's symptoms in her knees, ankles and feet could not be attributed to injuries sustained during service. But in Dr Humphries' opinion, the applicant's chronic exertional compartment syndrome was a consequence the physical demands of service. In amplification of his opinion Dr Humphries stated:

I do not believe that there is strong evidence that compartment syndrome is due to a pre-disposing condition such as increased fascial thickness or vascular abnormality. It is likely that some process causes a loss of compliance in the affected fascia with subsequent onset of symptoms. This loss of compliance is thought to be precipitated by unaccustomed exercise or high levels of exercise. Whilst the symptoms settle it would be wrong to say that the condition has resolved simply because symptoms at low exercise levels do not exist.

Dr Humphries said he did not agree with Dr Caldwell's opinion that chronic exertional compartment syndrome is due to a pre-existing structural abnormality or innate predisposition. He was aware of the recent research and the literature on the topic which he said did not support Dr Caldwell's opinion.

18. In cross-examination Dr Humphries was asked whether it would be unusual for someone with chronic exertional compartment syndrome not to complain of shin pain until many months elapsed after recruit training. He did not accept the premise. He reasoned that the need for the bone scan in March 1991, and the content of the report on the scan, obviously implied that Ms Hammond was suffering from shin pain. He thought that her complaint of pain in the lower third of the leg was consistent with pain from the condition, though most patients have pain in the mid tibia region. Dr Humphries said that the applicant's chronic exertional compartment syndrome became permanent within twelve months of onset of symptoms. Its chronicity was demonstrated by the results of the pressure test and her history of symptoms. He stated that there was no treatment that was likely to assist to stabilise the condition. As for any permanent impairment resulting from the compensable injury, Dr Humphries assessed a nil per cent impairment under Table 9.2 and Table 9.5 of the Comcare Guide.

APPLICABLE LEGISATION

19. The respondent is liable to pay compensation for a work related injury under s.14 of the Act. It provides:

Compensation for injuries

(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. ...

The following definitions in s.4 of the Act are relevant:

aggravation includes acceleration or recurrence.

ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

disease means:

(a) any ailment suffered by an employee; or

(b) the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.

impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.

injury means:

(a) a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or

(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment; ...

FINDINGS AND CONSIDERATION

20. Mr Jackson informed the Tribunal that the applicant was not at this juncture claiming any compensation under s.16 of the Act in respect of medical expenses or under s.19 of the Act for incapacity in respect of her bilateral chronic exertional compartment syndrome. The application is simply to have liability under s.14 of the Act accepted for the future and he referred to Comcare v Moon [2003] FCA 569 at [31]. Relying on Dr Humphries' opinion, he submitted that Ms Hammond suffers from mild chronic exertional compartment syndrome. If the applicant's evidence were accepted, it would support a finding that the condition was contributed to in a material degree by her service.

21. For the respondent it was submitted that there was no credible evidence before the Tribunal supporting a conclusion that liability continues from 23 November 1993. In particular Mr Hickey emphasised that there were no records of Ms Hammond seeking medical treatment for shin soreness until July 1991, which was some months after completion of recruit training, and thereafter she has not sought treatment apart from acupuncture and some exercising in a pool.

22. The Tribunal finds that Ms Hammond suffers from a mild chronic exertional compartment syndrome affecting both anterior compartments. This diagnosis was made by Dr Humphries as a consequence of the standard compartment pressure test he conducted. Citing the results of Dr Humphries' test, Dr Caldwell agreed with the diagnosis. Dr Whittle, on the other hand, was less specific in his diagnosis of diffuse lower limb pain with no definite pathology. The results of a standard compartment pressure test were not available to him and the Tribunal considers his evidence to be less persuasive than that of the other experts. The Tribunal finds that Ms Hammond's compartment syndrome is a physical ailment or disorder, and thus an `ailment' as defined.

23. The Tribunal accepts Ms Hammond's evidence that she first developed pain in her legs during her recruit training that began in October 1990. Although the first reference in service records to shin soreness or pain was not until July 1992, both Dr Humphries and Dr Caldwell considered her to have been suffering from shin soreness or shin splints prior to the bone scan in March 1991. The Tribunal notes Dr Humphries' evidence in cross-examination that pain from compartment syndrome came be diffuse and patients can find it hard to localise. Dr Humphries' evidence was that a patient could develop bilateral compartment syndrome affecting the anterior compartments as a result of eleven weeks of physical activity undertaken as part of recruit training. In his opinion, which the Tribunal accepts, her chronic condition was a likely consequence of the applicant's service in the Air Force. On the balance of probabilities we find, therefore, that the physical demands of recruit training was the likely cause of Ms Hammond's chronic exertional compartment syndrome affecting anterior compartments of both legs. The ailment was contributed to in a material degree by her service employment and is a `disease' as defined.

24. Dr Caldwell disagrees with Dr Humphries about the duration of the contribution of service to the condition. The dispute arises from their difference of opinion as to aetiology, Dr Caldwell being of the view that bilateral compartment syndrome of the leg develops from an underlying predisposition. Contribution to the condition ceases around the time of stopping the relevant activity that caused the symptoms to come on. The Tribunal prefers the evidence of Dr Humphries, largely because his opinion was based not only on his own experience of testing for the condition but also his authoritative review of the recent literature on the topic, which is a topic that he has researched and written about. By contrast Dr Caldwell's opinion appeared inconsistent at times. For example, his report dated 25 January 2002 stated that the condition "rarely resolves by itself", yet his letter of the same date to the respondent's solicitors (also Exhibit R1) stated that "compartment syndrome does not persist if you stop activity". On the basis of Dr Humphries' opinion, the Tribunal finds that the condition has not resolved but is persisting and chronic. The Tribunal accepts Dr Humphries' evidence that the condition is associated with a tendency to lack of compliance in the fascia that is life long where symptoms have been experienced for around six months, as the Tribunal finds was the case here from October 1990 at least until July 1992. Subsequent to onset of the condition, symptoms can be produced by normal activity such as brisk walking.

25. Dr Humphries was of the view that any symptoms that Ms Hammond may now suffer in her knees, ankles and feet could not be attributed to her injuries sustained during her period of service. We accept his evidence and find accordingly. Ms Hammond's claim for compensation was not restricted to any particular part of her lower limbs. It was expressed broadly, referring to pain in her legs. Having regard to Dr Humphries' evidence that he thought the area investigated by the March 1991 bone scan implied shin pain, we are satisfied that the claim extended to pain in the applicant's shins. It remains for us to consider whether the reviewable decision must be varied given the findings that there is a causal connection between service and Ms Hammond's condition of bilateral exertional compartment syndrome affecting the anterior compartments.

26. In Lees v Comcare (1999) 56 ALD 84 the Full Federal Court held:

[35] This is not to say that a determination under s.14 is without real significance. Such a determination will involve findings on the following matters. First, that an appropriate notice of injury has been given to the relevant authority as required by s.53 of the Act; secondly, that a claim for compensation has been made as required by s.54 of the Act; thirdly, that the person who made the claim or on whose behalf the claim was made was an "employee" at the time of the alleged injury (ss 4 and 5); fourthly, that the employee suffered an injury (s 4); and finally, that the injury has resulted in death, incapacity for work or impairment.

We accept Ms Hammond's evidence that her shin condition has caused her to curtail her involvement in sport, has difficulty walking on some surfaces and negotiating stairs. We note that Dr Caldwell found her to have an impairment due to her diagnosed condition but considered that the impairment did not result from the nature of the training and other work she performed in service. Dr Humphries, however, observed Ms Hammond to have a normal walking gait and to mount and dismount a stair height stool repetitively without difficulty. Moreover Dr Humphries assessed the applicant as having a nil per cent impairment due to her chronic exertional compartment syndrome. That was an assessment of the applicant's degree of permanent impairment and we are satisfied that Dr Humphries was not questioning whether she had suffered damage to the fascia or a loss of use or function of the muscles in the anterior compartments of her legs. We find therefore that she has an impairment as defined though not a compensable permanent impairment. Moving to consider Ms Hammond's incapacity for work, we note there was no relevant evidence and thus we find no such incapacity. Being satisfied, however, of the five matters referred to in Lees, it follows that the reviewable decision of 13 July 2001 should be varied. We find that the respondent is liable under s.14 of the Act to pay compensation in respect of the applicant's claim for pain in her legs, namely, for her mild exertional compartment syndrome affecting both anterior compartments, from 8 March 1991 when she was referred for a bone scan of the affected area of her legs. As Ms Hammond has not made any claims regarding payments under the Act, the respondent will have to address such claims as they arise (Australian Postal Corporation v Oudyn [2003] FCA 318) at [35]).

27. The Tribunal varies the decision under review. The respondent is liable to pay compensation in accordance with the Act from 8 March 1991 in respect of Ms Hammond's mild chronic exertional compartment syndrome affecting anterior compartments of both legs. In all other respects the decision under review is affirmed. The respondent is liable to pay the applicant's costs of the proceedings in accordance with the General Practice Direction of the Tribunal.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of P.J. Lindsay, Senior Member, and Dr M.E.C. Thorpe, Member:

Signed: .......................................................................................

Associate

Date of Hearing 5 & 6 August 2003

Date of Decision 28 August 2003

Counsel for the Applicant Mr Jackson

Counsel for the Respondent Mr Hickey