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Lyons and Military Rehabilitation and Compensation Commission [2006] AATA 157 (24 February 2006)

Last Updated: 24 February 2006

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 157

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2005/160

Applicant

Respondent

Date 24 February 2006
Place Brisbane
Decision

1.	The parties in this matter have agreed a form of decision appropriate to the reasons published by the Tribunal on 17 February 2006.

2.	Accordingly, and for the reasons published on 17 February 2006, the Tribunal decides:

(a)	to set aside the decision under review;

(b)	that as a result of the applicant’s compensable injury the applicant has a 10% impairment of the spine within the terms of Table 9.6 of the Guide to the Assessment of Degree of Permanent Impairment (the Guide) and a 10% impairment of the lower limbs within the terms of Table 9.5 of the Guide;

(c)	that by reference to the Combined Values Table of the Guide the applicant has a permanent impairment of 19%;

(d)	to remit the matter to the respondent to pay compensation to the applicant in accordance with this decision;

(e)	that the respondent is to pay the applicant’s costs of and incidental to the matter as agreed or as taxed by the Deputy Registrar in accordance with the Practice Direction.

.......................Signed............
Deputy President

CATCHWORDS

WORKERS’ COMPENSATION – benefits and entitlements – back condition caused by employment with Commonwealth – applicant claims leg condition should be accepted as arising out of the original back condition

DECISION AND REASONS FOR DECISION

1. The applicant, Mr Darren Lyons, enlisted in the Australian Army on 16 May 2000. He was then aged 23 years having been born on 30 January 1977. He was discharged medically unfit on 5 September 2003.
2. Whilst serving as a soldier Mr Lyons injured his back, initially during the course of physical training exercises on 17 May 2001 and again on 7 June 2003 whilst he was loading ammunition boxes.
3. On 3 July 2003 Mr Lyons lodged a claim for compensation for an injury to his lower back. In connection with that claim and for the purposes of an assessment of it, he was seen 16 July 2003 by Dr Matthew Hislop. Dr. Hislop provided a detailed report dated 24 July 2003. On the basis of Dr Hislop’s report the Military Compensation and Rehabilitation Service (MCRS) determined on 6 August 2003 that Mr Lyons had "suffered a contraction of a disease to which your military service contributed in a material degree, namely degenerative disc disease of the lumbar spine with a posterior disc protrusion at L4/S1."
4. After a deal of correspondence (which is of no present relevance) MCRS made a determination on 15 July 2004 that Mr Lyons had suffered a whole person impairment as a result of his compensable injury and that the degree of impairment was 10% whole person impairment assessed by reference to table 9.6 of the Comcare Guide to the assessment of the degree of permanent impairment (the Guide). That determination was reconsidered and affirmed on 18 February 2005.
5. Mr Lyons lodged an application for a review of that decision on 16 March 2005.
6. Expressed broadly, the case that is advanced on behalf of Mr Lyons by Mr Harding of Counsel is that in fact the accepted injury has left Mr Lyons with two quite separate impairments, one (that has been accepted) to his spine and the other to his lower limbs. It is said that the later impairment ought to be assessed in reference to table 9.5 of the Guide as amounting to a 20% permanent impairment.
7. As it seems to me the real contest concerns the impairment to Mr Lyons lower limbs – whether there is, as a matter of fact, an impairment to his lower limbs of the nature claimed by him and, if there is, the extent and consequences of it as a matter of assessment under the Guide.
8. It ought to be noted that Mr Dube of Counsel who appeared for the Commission at the hearing advanced the case that My Lyons was exaggerating the symptoms that he claimed existed in his legs. In particular he placed much reliance upon a submission that the matters of which Mr Lyons now complains so far as his legs are concerned were not the subject of earlier complaints in circumstances where they ordinarily would have been remarked upon had they been genuine complaints.
9. The starting point seems to me to be the evidence given by Mr Lyons, both at the hearing and over time, about the symptoms of which he complains in his legs. The evidence at the hearing is set out in the statement dated 24 May 2005 which became exhibit 2. He says of his lower limbs that he has a constant feeling present down the back of both of his legs and under his feet. He describes the sensation in his evidence as being a dull aching pain. This pain, he says, is exacerbated by walking and leads to cramping in his feet. Mr Lyons says that he is unable to walk more than about 300 metres at a time and must rest after walking that distance before being able to walk another 300 metres at which point he needs to stop again. He describes the level of pain that he experiences after walking 300 metres as being at the level of 5 to 6 on a scale of 1 to 10.
10. Mr Lyons also describes difficulties that he has with steps. His legs, he says, do not appear able to lift him from one step to the other without him using a hand rail for additional leverage. He concludes his statement by saying that he has difficulty with steps, grades and distances – that being the expression used as a descriptor of a 20% permanent impairment under table 9.5 of the Guide. The 10% descriptor requires "difficulty with grades and steps", that is, difficulty with distances is not required.
11. In determining whether Mr Lyons is accurate in his evidence regarding the leg symptoms it is as well to review what he has said about those matters over time.
12. The first reference in Mr Lyons’ service medical records appears to be a notation dated 19 November 2001 which makes reference to "leg discomfort when driving". Then, on 10 December 2001 when Mr Lyons saw Dr Sharwood he spoke of a "bit of numbness" in his left leg. At page 38 of the T-documents is a note which bears the date 3 June 2001 and which refers to Mr Lyons recovering from an appendectomy with lower back pain and (on my reading of the note) "pain both buttocks, post[?] thighs, heels outer aspect of feet." That note cannot have been made on 3 June 2001. Given its context it seems to me that it must have been made in 2002 and, presumably, on 3 June 2002 since it appears to be the referral of Mr Lyons to the Gregory Terrace Rehabilitation Clinic.
13. It is next relevant to note that Mr Lyons undertook a Work Hardening and Pain Management Program at the Gregory Terrace Rehabilitation Clinic between 25 June 2002 and 5 July 2002. In the report of Dr W.E. Ryan from that Clinic dated 5 July 2002 and under the heading "History" reference is made to Mr Lyons’ initial injuries and the following appears,

"He then had an appendectomy and awoke from his anaesthetic with back, buttock and bilateral leg pain.

His pain settled, but he remained symptomatic."

14. It is not clear whether, in these passages, Dr Ryan is recording what he was told by Mr Lyons or whether he is simply recounting the history as set out in the referral. I think that the latter is more likely since an earlier passage under the same heading commences "He reports ...".
15. Significantly for present purposes the report notes that Mr Lyons was at that stage currently walking at least 6 kilometres a day (up from 1 kilometres a day on admission) and managing a gym, hydrotherapy and abdominal program. There is, as well, a note that Mr Lyons had been "observed to ascend and descend a flight of fourteen stairs using the hand rail for support and reporting an increase in pain associated with descending the stairs." The chart used to record the position of the patient’s pain, numbness and the like records pain in Mr Lyons’ lower back and numbness, tingling or burning in the back of both legs extending down to his feet. It is notable that the report makes no express reference to leg pain other than the note set out in paragraph [13] above.

16. Mr Lyons was, as I have said, assessed by Dr Matthew Hislop on 16 July 2003 and that doctor’s report of 24 July 2003 has some importance. Dr Hislop makes reference to Mr Lyons complaining of "intermittent paraesthesia to both of his feet, with the right side being worse than the left." On physical examination Dr Hislop noted,

"He demonstrates tightness in the hamstrings and quadriceps muscles in both legs. He complains of mild tenderness on palpation over the paraspinal muscles particularly on the right side of the lumbar spine. Specific neurological examination failed to elicit any manifest underlying neurological deficits.
Mr Lyons was observed whilst mobilising for distances on the flat and navigating steps and grades. He demonstrated objective manifest difficulty in navigating steps and grades."’

The basis of that last comment is set out in greater length subsequently in the report in these terms,

"Mr Lyons was observed during the formal examination whilst performing activities such as squatting and rising in and out of a chair. He was then monitored whilst mobilising for approximately 50 metres distance on a flat surface in the hospital grounds. (During this time, he was specifically observed for any maladaptive gait pattern or antalgic nature to the gait).
Mr Lyons was then observed navigating 15 stairs of approximately 15cm height. He was observed climbing down and up the stairs (i.e. 30 steps in total) and was monitored for any objective manifest difficulty in mobilisation including particular reliance on the hand rail, obvious pain or discomfort, and evidence of the lower limb collapsing or giving way.
Finally, Mr Lyons was followed whilst walking outside of the hospital along a footpath and on an uneven dirt path, (both of which have slight grades) for approximately 30 metres."

17. On the basis of these matters Dr Hislop concluded that there was a 10% stable permanent impairment assessed by reference to table 9.6 in relation to the lumbar spine and a 10% permanent impairment assessed by reference to table 9.5 with respect to the lower limbs.

18. On 4 December 2003 Mr Lyons was seen by Dr Mark Young for medical assessment and report. In his report of the same date under the heading "Current Status" Dr Young records the reported symptoms as follow,

"Mr Lyons states that he suffers from intermittent lower back pain with severe exacerbations. He says he additionally suffers from intermittent paraesthesia to both of his feet, with the right side being worse than the left. He says his lower back pain is made worse after standing and sitting for periods in excess of 30-45 minutes and after bending, lifting, twisting, running and performing impact activities. He says his sleep is often affected as a result of his lower back condition. He says he is unable to take part in sports such as squash, running and football as a result of his lower back condition. He states he additionally has difficulty in performing some activities around the home including yard maintenance, vacuuming and cleaning."

Given that these matters are recorded in identical terms to those appearing in the report of Dr Hislop is seems probable that Dr Young was not reporting what he had been told by Mr Lyons but was repeating what had been recorded in Dr Hislop’s report.

19. In describing Mr Lyons’ then current physical status Dr Young said,

"In my medical opinion, Mr Darren Craig Lyons has continuous low back pain, but this is increased when certain physical capabilities are reached. Mr Lyons is ambulant, can arise from a chair, walk up to 1.2 km and swim backstroke.
Mr. Lyons states that his pain increases after 40 minutes of sitting, 30 minutes of walking, 30 minutes of driving, after repetitive bending, and with the lifting of weights from ground to waist level."

20. It is next relevant to have regard to a Non-Economic Loss Questionnaire signed by Mr Lyons on 7 January 2004 and completed with the assistance of a solicitor who was acting for him in his claim for compensation. Mr Lyons suggested who that solicitor might be but it was common ground at the hearing that the handwriting on the document was not that of that particular solicitor whose writing is apparently well-known to both counsel. That discrepancy on Mr Lyons’ part is not relevant however Mr Lyons did accept that he understood at the time that what he was completing was a serious document and that his entitlement to compensation was dependant to some extent on the answers that he provided. As it seems to me in those circumstances what Mr Lyons recorded on that occasion, a fortiori with the benefit of legal assistance, should provide a reasonable guide to the symptoms that he was then suffering.
21. Section 1 of the questionnaire refers to pain and suffering and it is relevant for present purposes to note that in his responses under this heading Mr Lyons makes no reference to pain in his legs or feet.
22. Section 2 of the questionnaire deals with loss of amenities under two headings – mobility, and recreation and leisure activities. Under the heading of mobility and by reference to a series of alternative descriptions, Mr Lyons described himself as having reduced mobility. In amplification of that short description Mr Lyons said this,

"If I attempt to walk any reasonably short distance pain will worsen in my back preventing me from continuing to walk. I will then need to stop and lie down and rest the back as much as possible. I use a tens machine for the relief of pain which does have some assistance only if I am lying still. It does not promote my being more mobile than what I am. If I sit in a vehicle or on a train for any amount of time of half an hour or so, I suffer pain in the lower back and cramps down the back of the legs. If I get up and move around a little bit, it helps to alleviate the pain at that time which is super-imposed upon the constant pain that I suffer."

23. Mr Lyons does not, in this questionnaire, otherwise refer to pain in his legs or feet or to restrictions in walking or difficulties with grades, steps or distances.
24. Mr Lyons was seen by Dr Richard Williams on 11 July 2005. Dr Williams was provided with Mr Lyons’ statement of May 2005. In his report dated 13 September 2005 (exhibit 4) Dr Williams noted Mr Lyons’ complaint of "lower back pain with pain radiating to both legs, as well as to the buttocks and in the posterior thighs." Dr Williams concluded that Mr Lyons’ back trouble was responsible for his ongoing leg symptoms. In his evidence at the hearing Dr Williams described the symptoms reported by Mr Lyons as being unusually widespread but within a range of symptoms arising from the accepted injury.
25. Mr Lyons gave evidence at the hearing. I did not regard him as an impressive witness. I suspect that most witnesses of similar background and education will appear unimpressive in the formal setting of a hearing. However I cannot say that his demeanour was of any particular assistance to me one way or the other in determining the extent of his symptoms. I did find unconvincing his explanations of having been "muddled" or having "forgotten" when asked why he had not reported the leg pains to earlier reporting practitioners. It seems wildly improbable to me that Mr Lyons would have overlooked mentioning the quite severe pain and discomfort that he says that he was experiencing if he had, in truth, been experiencing it.
26. Having regard to evidence that I have recited I am quite unable to accept that Mr Lyons has the symptoms in his legs and feet of which he complains. Absent an acceptance of his evidence there is no evidence whatsoever that he has any difficulty in walking distances, indeed all the evidence seems to be to the contrary.
27. The question of whether he experiences difficulty with grades and steps has caused me some difficulty. There is support for Mr Lyons’ case in the reports of Dr Ryan, Dr Hislop and Dr Williams and in the June 2002 note. Were these reports based entirely on the basis of a history recounted by Mr Lyons I would have been minded not to accept them, not, I hasten to add, because of any doubts about the medical practitioners concerned but because I could not regard their opinions as being based upon an accurate account. However the report of Dr Hislop, in particular, seems to me to provide objective support to the notion that Mr Lyons was having difficulty with steps and grades in July 2003. So too, the report of Dr Ryan from July 2002, provides objective support for the existence of difficulty with steps and grades.
28. Finally, there is the evidence of Dr Williams so far as objective evidence is concerned. Dr Williams spoke of his own observations of Mr. Lyons’ gait and his clinical observations that supported the existence of the symptoms.
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.
36. By reference to the combined values table Mr Lyons has a permanent impairment of 19% and I so find.
37. In the circumstances I would propose to set aside the decision under review and substitute a decision that Mr Lyons has a 19% permanent impairment. I propose to circulate these reasons and invite the parties to submit within 7 days a formal order that will give effect to my conclusions and which will deal with any question of costs that may arise. If the parties are unable to agree on a form of order the matter will be listed for further short hearing if required.

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed: .....................................................................................
Robert Hayes, Associate

Date of Hearing 3 February 2006
Date of Decision 24 February 2006
Counsel for the Applicant Mr A Harding
Solicitor for the Applicant Gilshenan & Luton
Counsel for the Respondent Mr B Dube
Solicitor for the Respondent Australian Government Solicitor