Quirk and Military Rehabilitation and Compensation Commission [2009] AATA 899 (24 November 2009)

Last Updated: 24 November 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 899

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/4684

GENERAL ADMINISTRATIVE DIVISION		)
	Re		RAYMOND QUIRK

Applicant

And

MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal

Mr B H Pascoe, Senior Member

Date 24 November 2009

Place Melbourne

Decision

The Tribunal sets aside the decision under review and in its stead decides that the applicant is entitled to compensation pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for 10 per cent permanent impairment assessed under Table 9.5 of the Guide to the Assessment of the Degree of Permanent Impairment and remits the matter to the respondent for assessment of such compensation. The respondent shall pay the applicant's costs and disbursements in respect of these proceedings pursuant to section 67 of the Act.

(sgd) B H Pascoe
Senior Member

COMPENSATION - back injury as a consequence of employment - subsequent leg conditions - whether arising from back injury - whether permanent impairment of lower limbs

Compensation (Commonwealth Government Employees) Act 1971

Safety, Rehabilitation and Compensation Act 1988 s 24, s 27

Lyons and Military Rehabilitation and Compensation Commission [2006] AATA 157

REASONS FOR DECISION

24 November 2009

Mr B H Pascoe, Senior Member

1. This is an application to review a decision of the respondent denying liability for permanent impairment compensation in respect of a lumbar spine condition suffered by the applicant.
2. At the hearing the applicant, Mr R Quirk was represented by Mr M Carey of counsel and the respondent by Mr B Dube of counsel. Evidence was given by Mr Quirk, Dr A Webster, an occupational physician, Mr G Grossbard, an orthopaedic surgeon and Professor S Davis a neurologist. The respondent tendered a surveillance report and video from MPOL Group Pty Ltd.
3. Mr Quirk was born on 6 June 1957 and served in the Australian Army from February 1978 to April 1984. He suffered an injury to his lumbar spine from lifting heavy loads into and out of trucks which was aggravated by physical training and slipping on wet long grass during a game of touch football during that training in February 1984. That back injury was accepted as compensable. As it occurred and the resultant impairment was permanent prior to 1 December 1988 no lump sum compensation was available under the applicable Act, the Compensation (Commonwealth Government Employees) Act 1971.
4. The evidence of Mr Quirk was that, prior to some time in 2003 or 2004, he had no difficulties with his legs and he regularly walked 3 to 3½ km over some 40-45 minutes on 3 or 4 occasions during a week. Subsequent to 2003/2004 he has suffered pins and needles in the ankles and feet with pain in the shins and calves and, sometimes, pain in the thighs. He said that he now has difficulty walking more than 200 to 300 metres without resting and has problems with stairs and grades.
5. Since discharge from the army in 1984 Mr Quirk has primarily worked as a prison officer. Currently and since 1997 he has been employed as a corrections officer at Port Phillip Prison in the admissions area. He said that he works 12 hour day shifts, usually three per week on average but which can be on two, three or four or, on occasion five, consecutive days. The prison is 25 minutes drive from home and a walk of approximately 150 metres from the car park to the front door of the prison. The unit in which he works is a two storey unit to hold a maximum of 24 prisoners. Mr Quirk said that there is very little walking involved in his duties which involve a lot of paper work at his desk on the lower floor. He said that he can sit or stand at will. On occasions he is required to go up stairs to the upper level. He said that he arranges with his work colleagues to deal with upper level matters but, on occasions, he holds both rails to climb the 13 steps slowly. Mr Quirk acknowledged that he has not told his employer of his difficulties in walking, standing or sitting.
6. In a statement lodged for the purposes of these proceedings, Mr Quirk set out his physical difficulties which can be summarised as:
   • Unable to walk further than half a block
   • Unable to share a bed with his wife
   • Unable to assist with housework, gardening or maintenance
   • Unable to walk around and peruse shops
   • Unable to sit through a movie
   • Unable to drive more than 30 minutes
   • Unable to sit in a car or aeroplane for extended periods
   • Unable to watch television unless he lies on the floor
7. Mr Quirk was examined by Dr Webster on 28 May 2008 at the request of the respondent. His assessment in a report of 3 June 2008 was:

Mr Quirk is a 50-year old man who has low back pain and referred leg pain.
He does not have evidence of neurological compromise of his lower limbs. He does not have significant nerve root impingement or cauda equina compression on MRI. His pain and neurological symptoms of altered sensation are intermittent in nature. They do not follow the dermatomes that are related to the nerve roots. The leg pain appears to be more referred pain from the disc rather than from neurological compromise from nerve root impingement. He does not have objective evidence of permanent neurological impairment of the lower limbs. He has no evidence of muscle wasting. His reflexes are all brisk and equal and his power is normal. He has normal sensation to light touch.

In his oral evidence, Dr Webster confirmed that there was no neurological effect on Mr Quirk’s lower limbs and no symptoms which could be measured objectively as pain was the only complaint. Dr Webster observed that Mr Quirk had apparent difficulty walking down stairs and observed him walking approximately 250 metres where he walked slowly and with a limp.

8. Mr Grossbard examined Mr Quirk on 5 December 2007 at the request of Mr Quirk’s legal representatives. He found no physical problems in relation to his legs and no neurological deficit. He believed, on the balance of probabilities that Mr Quirk had difficulty in walking distances and with steps and grades and that this condition is entirely related to the back injury of 1984. Dr Grossbard assessed Mr Quirk as having a 20 per cent impairment under Table 9.5 of the Guide to the Assessment of the Degree of Permanent Impairment (the Guide) issued pursuant to section 28 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). Dr Grossbard accepted that his findings and opinions were based on the history provided by Mr Quirk and not on direct observation.
9. Professor Davis examined Mr Quirk at the request of the respondent and provided a report dated 8 January 2009. He found no physical or neurological abnormalities in the lower limbs although accepted that minor radicular symptoms (often referred to as nerve root irritation) are often not associated with any clinical or radiological features of nerve root compromise. In his oral evidence Professor Davis accepted that he had made no objective measurement of any walking difficulties of Mr Quirk and had relied on the history given to him.
10. It was submitted for the applicant that, as a consequence of the accepted work related back injury, he had a permanent impairment of the lower limbs which caused difficulty with steps, grades and distance and that impairment had commenced in 2003 or 2004. Mr Carey argued that for Table 9.5 of the Guide to be applicable it was not necessary to find any objective neurological deficit as the Table was concerned only with function.
11. For the respondent, it was submitted that Table 9.5 of the Guide cannot be used where there is no objective evidence of neurological changes resulting in injury to the legs. While Mr Dube accepted that, in circumstances such as in this proceeding, the Guide is not particularly well drafted, he argued that the intention was clear that there need be some objective evidence of injury to the lower limbs for Table 9.5 to apply. It was suggested, also, that the evidence of Mr Quirk should be treated with caution given his ability to work full time on 12 hour shifts, the fact that he had not sought any medical or other treatment for the alleged leg difficulties and the video had shown him walking with a normal gait with no limp or apparent difficulty.
12. In the matter of Lyons and Military Rehabilitation and Compensation Commission [2006] AATA 157, Deputy President Hack was faced with the same issues and arguments as in this matter. In the decision it was said:

29. In the result I am satisfied by the objective evidence that Mr Lyons does have pain in his lower limbs that causes him difficulty with steps and grades. I am, as well, satisfied on the basis of the evidence of Dr Williams that Mr Lyons’ back trouble is responsible for his ongoing leg symptoms. I should say that I do not overlook the body of evidence relied on by the Commission that concludes that there is no neurological connection between Mr Lyons’ back condition and his leg difficulties. Dr Williams, as I understood him, accepted that this was so. So too did Dr Hislop. But the evidence of both of them was that there was a permanent impairment of Mr Lyons’ lower limb function as a result of his back injury. That is, and I accept, Mr Lyons has a back injury which causes pain which means that he has difficulty with grades and steps although he can rise to a standing position and walk.
30. Thus I would conclude that by reference to Table 9.5 of the Guide Mr Lyons has a 10% permanent impairment of his lower limb function in addition to the accepted permanent impairment of 10% to his thoraco-lumbar spine.
31. But the respondent submits that the case is not one where a finding of impairment under table 9.5 is open as a matter of law. The respondent’s contention is that, in the circumstances of the present case, Mr Lyons is not entitled to be regarded as having a permanent impairment to his lower limbs because that impairment is not a neurological consequence of his back injury. Absent impairment to the lower- limbs themselves, pain and reduced mobility can be addressed, it is said, by reference to non-economic loss. This is so, the argument goes, by reference to the notes at table 9.6. Those notes are in these terms,
"Note: Lesions of the sacrum and coccyx should be assessed by using the table which most appropriately reflects the functional impairment this would usually be table 9.5. Lesions of the spine are often accompanied by neurological consequences. These should be assessed using table 9.4 or 9.5 and the results combined using the combined values table."
32. The respondent submits that those notes support the construction that it is only where the lower limb impairment is as a neurological consequence of the spinal impairment that a separate assessment under table 9.5 is to be undertaken. I should add that I was informed by counsel that their researches had been unable to locate any decision where this issue had been considered.
33. I am unable to accept the respondent’s argument.
34. As it seems to me the notes to table 9.5 do not yield to that conclusion; rather they set out one example of where it will be necessary to make a separate assessment. Moreover the argument seems to me not to be supported having regard to the introductory notes to the Guide where, under the heading "Combined Impairment", the following appears,
"It is important to realise that impairment is system or function based and that a single injury or disease may give rise to multiple loss of function. When more that one table applies to a single injury separate scores should be allocated to each functional impairment."
35. Here, on the view I take of the evidence Mr Lyons has a permanent impairment of the spine which answers the 10% descriptor. There is no issue with this. But in addition, and as a consequence of the injury to the spine which has been accepted he has pain in his legs which causes him difficulty with grades and steps. He thus satisfies the 10% impairment level under table 9.5.

13. The respondent has made the same submission in this matter and for the same reasons as set out above, I am unable to accept that view. I am satisfied that if the applicant has an accepted work related back injury and the evidence demonstrates, on the balance of probabilities, that he has difficulties in his lower limbs caused by pain from that back injury with grades, steps and/or distances, then Table 9.5 can be applied. As a consequence the issue is whether there is objective evidence that Mr Quirk has such difficulties and whether such difficulties are related to the back injury.
14. It must be said that I have difficulties with the evidence of Mr Quirk. In his statement setting out his physical difficulties the emphasis of the majority of complaints appeared to be related to the lumbar spine rather than his legs. It is difficult to accept that if these difficulties are real, that he is able to work as a prison officer for 12 hour shifts of up to five consecutive days with his employer being unaware of such difficulties. It would appear that he has had no lost time at work because of his injury and has not sought any medical treatment in the last 12 months. In the course of his employment he is entitled to use force if required to restrain prisoners and in the past, has injured his shoulder in such activities. It is difficult to accept that he is able to carry out his duties with the alleged physical difficulties stated. While he stressed his inability to sit for more than short periods, it was noted that he sat in the witness box while giving evidence for some 90 minutes without any apparent discomfort. Only one of the examining medical practitioners observed him on steps and walking. Dr Webster observed him walking approximately 250 metres, slowly and with a limp. It is recognised that Mr Quirk attended the examination by Dr Webster at the request of the respondent for assessment for the purposes of this claim. It is not unreasonable to assume that Mr Quirk would be seeking to demonstrate an impairment in such circumstances. The surveillance report and video provided no conclusive evidence either way. There was no vision of Mr Quirk on steps or grades nor of walking any distances of more than, possibly, 200 metres. Equally there was no vision demonstrating any limp or other apparent walking difficulties alleged by Mr Quirk.
15. A further difficulty in this matter is the period of some 20 years between the initial injury to the back and the alleged onset of leg pain and associated difficulties. Is it possible some aggravation was caused by some other activity? Mr Quirk said that, until 1995, he enjoyed horse riding but could not tolerate this activity subsequently. He injured his shoulder in physical activity associated with his current employment. It seems quite possible that some other such activity has led to the leg problems and not the injury suffered in 1984.
16. Against these concerns is the clear acceptance by the three medical practitioners who examined Mr Quirk and gave evidence at the hearing that he does suffer leg pain which would cause difficulties with grades and steps and that, on the balance of probabilities, the cause of that pain is referred pain from the disc in the injured back. The only difference between them was the appropriateness of arriving at a permanent impairment entitlement under Table 9.5 (lower limb function) rather than Table 9.6, relating to the spine, only.
17. On balance and with reservations, it is appropriate to accept the view of the medically qualified witnesses that Mr Quirk is suffering pain in his legs as a consequence of the back injury and is having the functional difficulty with his lower limbs. Table 9.5 provides an impairment rating of 10 per cent where the person can rise to a standing position and walk but has difficulty with grades and steps. The rating increases to 20 per cent if the person also has difficulty with distances. Mr Grossbard assessed the impairment at 20 per cent, Professor Davis at 10 per cent and Dr Webster made no assessment under Table 9.5. On balance on the evidence before me I am unable to find that Mr Quirk has difficulty with distances compared with what might be expected at his age. There is simply no demonstrable objective evidence of this other than somewhat generalised statements of Mr Quirk seeking to compare himself with some years ago. I am prepared to accept difficulties with grades and steps giving him a 10 per cent whole person impairment pursuant to Table 9.5 of the Guide and a consequent entitlement under section 24 of the Act being an impairment resulting from an injury which arose in the course of employment with the Australian Army. There would be a further entitlement to compensation for non economic loss pursuant to section 27 of the Act but no evidence in relation to this was provided.
18. The appropriate course is to set aside the decision under review and remit the matter to the respondent on the basis that the applicant is entitled to compensation pursuant to sections 24 and 27 of the Act for 10 per cent permanent impairment under Table 9.5 of the Guide.

I certify that the eighteen [18] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr B H Pascoe, Senior Member

Signed: Dianne Eva

Clerk

Dates of Hearing 28, 29 and 30 September 2009

Date of Decision 24 November 2009

Counsel for the Applicant Mr M Carey

Solicitor for the Applicant Mr B Mason, Slater & Gordon

Counsel for the Respondent Mr B Dube

Solicitor for the Respondent Sparke Helmore