Mortlock and Comcare [2003] AATA 868 (5 September 2003)

Last Updated: 8 September 2003

DECISION AND REASONS FOR DECISION [2003] AATA 868

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/915

GENERAL ADMINISTRATIVE DIVISION	)
	Re	ADAM MORTLOCK

Applicant

And

COMCARE

Respondent

DECISION

Tribunal

Senior Member K L Beddoe

Date 5 September 2003

Place Brisbane

Decision

The Tribunal affirms the decision under review.

(Sgd) K L Beddoe

Senior Member

CATCHWORDS

WORKERS' COMPENSATION - benefits and entitlements - back condition - whether there is a continuing liability to pay compensation - whether applicant suffered a short-term aggravation of a pre-existing degenerative condition

Safety Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

5 September 2003

Senior Member K L Beddoe

1. By notice dated 23 April 2001 the respondent determined that the Commonwealth was not liable to pay further compensation from that date. That decision was affirmed on reconsideration and the applicant applied for review in this Tribunal.

2. Sub-section 14(1) of the Safety Rehabilitation and Compensation Act 1988 ("the Act") relevantly provides that the respondent is liable to pay compensation, in accordance with the Act, in respect of an injury suffered by an employee if the injury results in incapacity for work.

3. Injury is a defined term found in sub-section 4(1) of the Act and reads as follows:

"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;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;"

4. At the hearing the applicant conducted his own case and Mr Clark appeared for the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the "T documents" and further documents were tendered and marked as exhibits as follows:

Exhibit 1 Report of Dr Packer dated 16 April 2002

Exhibit 2 Service Medical Documents.

5. Oral evidence was given by Dr Blue, orthopaedic surgeon, Dr Shaw, orthopaedic surgeon and Dr Packer, orthopaedic surgeon. The applicant did not give evidence.

6. I make the following findings of fact. The applicant was born on 25 June 1977 and was 25 years of age at the date of hearing. He enlisted in the Australian Army in 1996 commencing recruit training on 12 November 1996.

7. The applicant was examined for entry into the Army on 3 July 1996. The Medical History Questionnaire (Exhibit 2) noted some history of medical conditions but nothing relevant to his back. Glandular Fever in 1995 was noted. A further questionnaire dated 12 November 1996 did not disclose any medical treatment after 3 July 1996, and a further medical examination on 12 November 1996 found his back to be normal.

8. On 8 December 1996 the applicant attended RAP and was put on restricted duties for a work related injury.

9. The applicant was subsequently admitted to hospital with acute generalised back pain for the previous week and upper back pain for one day. The clinical notes include "Nil injuries remembered" (Exhibit 2).

10. The clinical notes at time of admission to hospital on 8 December 1996 show no specific injury was reported. However, a specific injury has been described as follows:

(a) clinical notes at and around time of admission note aggravation while working in the mess and rifle lessons over the preceding week (T3/12);

(b) the applicant was discharged from the Army - "below medical standard" citing lower back pain due to disc problem which was said to be likely to be permanent;

(c) the final medical board report notes a gradual onset of lower back pain during week 3 of training and duties week with no specific injury, but a diagnosis of disc bulge L5/S7, and cause given as impact training, wearing webbing and physical training (PT);

(d) on 16 December 1996 the applicant signed a statement which included the following:

"Whilst lifting a bucket of potatoes I felt a twinge in my back, after more lifting and problem in my back got worse. I then went to RAP.";

(e) in the claim for compensation signed by the applicant on 17 December 1996 (T26) he describes the events which led to the injury as follows:

"Lifting drums of potatoes in a kitchen";

(f) in a medico-legal report by Dr Harvey-Sutton (T29) the following is recorded:

"Mr Mortlock said that he was at Kapooka and during `Duty Week' his duties were in the kitchen. He was ordered to pick up a 44 gallon drum, filled with potatoes and water, and place it on to a trolley. He felt something go in his back, and then pain progressively developed. He could not sleep that night, and the following morning felt tired, and the back was painful and he could barely walk to Kapooka hospital. He was admitted to hospital for a week, and following a CT scan, was made BMS and he said he was sent home within a week."

The respondent had told Dr Harvey-Sutton that the applicant injured his back when lifting drums of potatoes in a kitchen on 7 December 1996 resulting in a minor L5/S1 disc bulge (T29).

(g) Dr Blue also made a report (T48) which included the following:

"He informed me that he first injured his back during his fifth week of Army service when he lifted a 44 gallon drum full of water and potatoes, a height of about 6 inches, to place in (sic) on a trolley. He states that he felt a twinge of pain in his back but continued at work however the following day he was unable to get out of bed. He was taken to the Army hospital where he was examined and underwent a CAT scan which appears to be taken on December 13, 1996 reporting a mild broad based posterior disc bulge at the L5/S1 level without nerve root compromise. His physical activities were downgraded and he received treatment by way of physiotherapy for three months without any improvement in his symptoms."

Dr Blue had been told by the respondent that the applicant attributed his condition to lifting a bucket of potatoes.

(h) the applicant disputes that information given to Dr Blue was correct (T52) but did not refer to the "bucket of potatoes" so that it may be inferred this information was correct albeit that the applicant also did not refer to Dr Blue's "44 gallon drum";

(i) Dr Shaw also recites a history taken which includes "he noted his first episode of low back pain while lifting a 44 gallon drum full of water and potatoes" (T55).

(j) it appears from Dr Harvey-Sutton's report dated 18 February 1999 (T29) that after leaving the Army the applicant attempted to train as a cameraman but was otherwise unemployed;

(k) in a statement (undated) received by the respondent on 26 February 2001, the applicant stated that he started a retail traineeship with Coles Supermarkets at Moranbah on 5 June 2000 working in the grocery department, found the work too painful for his back, transferred to the bakery department where for a short while his back gave little trouble, then started to become painful again. Apparently he refused a transfer to checkouts and did not return to work as of 2 February 2001;

(l) in his statement dated 23 May 2001 (T52) the applicant states:

"Since my injury on 8 December 1996 I have been unable to engage in and retain full-time employment".

(m) in his report (Exhibit 1) Dr Packer said that the applicant had been working part-time as a barman for the previous four months (December 2001 to April 2002).

THE MEDICAL EVIDENCE

11. Document T3 includes a copy of an X-Ray report by Dr Stebncykyj, Radiologist, in respect of an examination on 10 December 1996 in respect of the lumbo-sacral spine. The report noted a minor degree of narrowing of the L5/S1 intervertebral disc space, the remaining spaces being within normal limits. No focal bone lesion was identified with no evidence of a pars intra articularis defect. I interpret the report to mean no defect in the vertebrae at L5 and S1.

12. In a further report, dated 13 December 1996, Dr Stebnyckyj reported on a CT scan of the lumbo-sacral spine (T9). No abnormality is noted except at L5/S1 level where the report indicates a mild broad based posterior disc bulge which does not encroach upon the theca and does not compromise the S1 nerve roots at that level. The L5 nerve roots were said to exit freely. Dr Harvey-Sutton is a consultant occupational physician. Dr Harvey-Sutton's report dated 18 February 1999 (T29) is focused on whole person impairment in relation to what was an accepted injury to the back. She diagnosed a minor L5/S1 disc bulge in a person outside the normal height distribution (194 cm). She also said that in view of the history presented, it is probable that the applicant's employment in the Army aggravated his back condition with the heavy lift being the specific contributory factor. The condition was permanent but not likely to deteriorate in the foreseeable future.

13. A further CT scan of the lumbar spine dated 28 January 2000 (T35) revealed:

(a) L3/L4 level - no significant disc bulge, no spinal stenosis, the L3 nerve roots exit freely and no facet joint arthropathy;

(b) L4/L5 level - minor disc bulge, no spinal stenosis, the L4 nerve roots exit freely, mild facet joint arthropathy seen, no significant thickening of the ligamentum flavum;

(c) L5/S1 level - broad based disc bulge, no spinal stenosis, the L5 nerve roots exit freely, no foraminal stenosis.

14. Document T48 is a copy of a medico-legal report by Dr Blue, orthopaedic surgeon dated 2 April 2001 and addressed to the respondent. I have already referred to part of the history taken by Dr Blue. Dr Blue was of the opinion that based on clinical presentation and examination the described incident produced acute lumbar muscle strain only. In his oral evidence Dr Blue affirmed that opinion. In his oral evidence Dr Blue confirmed that the applicant had described lifting a drum of potatoes and confirmed his diagnosis as likely strain to muscles in the lumbar region. He also said that he thought there was inappropriate presentation.

15. Dr Blue thought the applicant's physique was a relevant factor resulting in early degeneration of the spine and relied on the CT scans at the time of his report and the subsequent MR1 scan as not showing a disc protrusion. It followed, in Dr Blue's view that the disc degeneration was constitutional and on cross-examination by the applicant said there was no current connection linking the condition to the accident.

16. Document T55 is a copy of a medico-legal report of Dr Shaw, an orthopaedic surgeon dated 20 June 2001 and addressed to the respondent. The report was prepared at the request of Dr Rowles, the applicant's general practitioner at Moranbah. As already noted Dr Shaw refers to a history of the first episode of back pain occurring while lifting a 44 gallon drum full of water and potatoes and being able to continue working that day.

17. Dr Shaw made the following findings and conclusions on examination:

"Examination of his back reveals a good range of flexion, lateral flexion and rotation but soreness on extension. Straight leg raising is sore in the right hamstring and limited to 70° bilaterally. The stretch test is negative. The right S1 joint is sore on compression. Reflexes are equal and reactive in the lower limbs.

A CT scan performed on the 28/1/2000 suggests the presence of mild bulging of the annulus at L5 S1 without nerve root compromise. A MRI of the lumbar spine performed on the 31/5/2001 identifies a mild left sided foraminal stenosis at L5 S1 due to facet joint hypertrophic change and annular disc bulge which may be related to left L5 neural comprise in the intervertebral foramen. Bone scar performed on the 31/5/2001 is within normal limits.

Mr Mortlock is suffering mechanical low back pain due to disc degeneration at L5 S1. This disc degeneration is likely to be the consequence of a disc protrusion at L5 S1. The broad base annular bulge identified on the CT scan is confirmed on the MRI as being a symmetrical bulge extending laterally into the intervertebral foramina. The MRI confirms that the changes at L5 S1 seen on the CT scan are pathological.

I have perused Dr Tony Blue's report to Military Compensation and Rehabilitation Services dated April 2, 2001. There are statements in this report which bears scrutiny. In the second paragraph under Examination Dr Blue states that the CT scan findings are within normal limits. However a MRI performed on the 31/5/2001 confirm that the changes at L5 S1 are related to a pathological disc protrusion and are not within normal limits. In the paragraph entitled Opinion Dr Blue states that the probable diagnosis is posturally muscle spasm. The MRI identifies disc degeneration at L5 S1 and the likely cause of Mr Mortlock's mechanical back pain is degenerative disc disease at L5 S1. Dr Blue states that lifting a 44 gallon drum of potatoes and water bears no relationship to ongoing pain. Mr Mortlock states that this was the commencement of his low back pain and it seems reasonable to accept that the disc protrusion occurred at L5 S1 while lifting the 44 gallon drum.

Dr Tony Blue's report was performed without the benefit of the MRI. My opinion is that Mr Mortlock has suffered a disc protrusion at L5 S1 resulting in ongoing degenerative changes at this level and mechanical low back pain that has interfered with his ability to partake in heavy physical occupations and activities. It appears probable that the cause of this condition was a L5 S1 disc protrusion resulting from lifting the 44 gallon drum."

18. Dr Shaw considered that ongoing treatment for mechanical low back pain is light physical or sedentary work, simple analgesics and anti-inflammatories with an exercise program to maintain muscle strength (T55).

19. In his oral evidence Dr Shaw confirmed his view that there was a disc bulge at L5/S1. He said that he had merely accepted the applicant's description of the incident as the initiating event for the condition. He said that a disc bulge can be normal but a protrusion is pathological and he did not see a protrusion, only degenerative change was seen on the MRI which he thought was mild degenerative change, albeit that he had assumed a disc protrusion had occurred with the lifting of the drum. He said that a severe strain was likely as the result of "moving the drum". A significant weight would be necessary to cause a disc protrusion.

20. Dr Shaw said he had not seen Dr Stebnyckyj's report of 13 December 1996 but he had seen Dr Packer's report (Exhibit 1). In his oral evidence Dr Shaw maintained his view that the back condition was most likely attributable to the drum incident.

21. Exhibit 1 is a medico-legal report by Dr Packer, orthopaedic surgeon dated 16 April 2002 addressed to solicitors acting for the respondent. On examination Dr Packer found a mild thoracic kyphosis and generalised tenderness throughout the thoraco-lumbar spine and left buttock region. He also reported that all spinal movements were resisted with a complaint of pain. He reviewed the X-Rays, CT scans and MRI noting loss of hydration at both L4/5 and L5/S1 levels with other degenerative changes present.

22. Dr Packer's opinion was that the applicant had suffered a musculo-ligamentous strain to his lower back in the presence of early degenerative disease in the lumbar spine as a result of the incident on 7 December 1996 and that aggravation was of a temporary nature only. The continuing condition being of a constitutional nature related to the applicant's physique and posture with some contribution with a psychological overlay.

23. In his oral evidence Dr Packer confirmed his opinion that the applicant's condition was as the result of degeneration over time correctly described as a constitutional degenerative disease.

CONSIDERATION

24. I accept and find that the applicant's back condition was non-symptomatic prior to December 1996. I also accept and find that while working in the mess in early December 1996 it is likely the applicant aggravated a pre-existing back condition while lifting a bucket of potatoes.

25. I am also satisfied and find that the applicant's description of the accident is grossly exaggerated to the point that in so far as it varies from the contemporaneous Army records it should not be accepted. That proposition was not put to the applicant because he did not give evidence. However, the contemporaneous records, including the applicant's own statement on 16 December 1996 (T12), satisfy me and I find that the applicant has grossly exaggerated the fact of the incident and his symptoms since that time.

26. The medical evidence satisfies me that the applicant suffered a short-term aggravation of a pre-existing degenerative condition and it is that pre-existing degenerative condition which has caused continuing symptoms. I am satisfied and find that the effects of the short-term aggravation ceased when the soft tissue injury resolved and that was no later than 24 April 2001 when the respondent decided it was no longer liable to pay compensation.

27. The continuing back condition is not an injury which has any relationship to the applicant's employment. In particular, relying on the evidence of Dr Packer, it is more likely than not that the condition is constitutional.

28. For these reasons the decision under review will be affirmed.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K L Beddoe

Signed: Sarah Oliver

Associate

Dates of Hearing 7 and 8 November 2002 (at Rockhampton)

Date of Decision 5 September 2003

The Applicant appeared in person

Counsel for the Respondent Mr Clark

Solicitor for the Respondent Blake Dawson Waldron