Baird and Comcare
[2007] AATA 1886
•19 October 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1886
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S 200600146
GENERAL ADMINISTRATIVE DIVISION ) Re ALLAN BAIRD Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member L Hastwell
Professor P Reilly AO (Member)Date 19 October 2007
Place Adelaide
Decision The Tribunal affirms the determination of 15 March 2006 with respect to the applicant’s claim for compensation for permanent impairment as a result of a back injury sustained by him on 12 April 2004.
..............................................
L HASTWELL
(Senior Member)
CATCHWORDS
COMPENSATION – Commonwealth employees – fall from chair – lumbar sprain – discal injury – annular tear – liability accepted for injury– degree of impairment under the Guide to the Assessment of the Degree of Permanent Impairment – back pain – ROM of spine – loss of spinal movement – leg pain -– ability to walk distances and deal with steps – inconsistency between statements of applicant as to impairment and surveillance evidence – medical evidence prefaced upon genuine history being provided – surveillance evidence as independent witness – nil impairment under Table 9.5 and under Table 9.6 – decision affirmed
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 24, 27
Guide to Assessment of Permanent Impairment
Canute v Comcare (2006) 91 ALD 552
Comcare v Fiedler (2001) 115 FCR 328
Comcare v Moon (2003) 75 ALD 160
REASONS FOR DECISION
19 October 2007 Senior Member L Hastwell
Professor P Reilly AO (Member)
On 12 April 2004, Allan Baird (the applicant) sustained an injury to his lower back during the course of his employment as Acting Director of the Vietnam Veterans’ Counselling Service (VVCS).
Liability for “lumbar sprain” was accepted by the respondent (Comcare).
On or about 6 October 2005, the applicant lodged a claim for permanent impairment arising from this incident claiming permanent impairment with respect to his lower back and left leg pursuant to ss 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
The applicant’s claim was rejected on 15 March 2006, on the basis that the applicant’s condition could not yet be considered permanent as his active treatment was not complete.
The applicant lodged an amended compensation claim (T38/129) on 29 November 2005 in which his treating specialist certified that his condition had become permanent.
On 15 March 2006, upon reconsideration, Comcare affirmed the determination of 7 November 2005.
The applicant lodged an application for review of that reconsideration to this Tribunal on 31 May 2006.
legislation
Both claims arise under the Safety, Rehabilitation and Compensation Act 1998 (Cth) (the Act).
Section 14 of the Act provides for the payment of compensation to Commonwealth employees in certain circumstances. Section 14(1) provides:
“14(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.”
“Injury” is defined in s 4 of the Act 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.”(
“Impairment” is defined in s 4 of the Act as follows:
“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.”
Section 24 of the Act provides for compensation for injuries resulting in permanent impairment in the following terms:
“24(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
For the purpose of determining whether impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee’s condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and when determining whether or not the impairment is permanent
(d) any other relevant matters.
Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
…
Subject to section 25, if:
(a) the employee has a permanent impairment other than a hearing loss; and
(b) Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
…”
The degree of permanent impairment is assessed by reference to the Guide to the Assessment of the Degree of Permanent Impairment (the Guide). Section 28(4) of the Act provides that when reviewing an assessment of permanent impairment the Tribunal is bound by the Guide. The tribunal must consider the Guide that was in force at the time of the claim.
The relevant tables for the assessment of impairment with respect to the back and leg condition from which the applicant suffers are Tables 9.5 and 9.6 of the Guide.
The relevant portion of Table 9.5 is as follows:
%
Description of level of impairment
10
Can rise to standing position and walk BUT has difficulty with grades and steps
20
Can rise to standing position and walk but has difficulty with grades, steps and distances
30
Can rise to standing position and walk with difficulty BUT is limited to level surfaces
The relevant portion of Table 9.6 is as follows:
%
Description of level of impairment
Cervical Spine
Thoracolumbar spine
0
X-ray changes only
X-ray changes only
5
Minor restrictions of movement
Minor restrictions of movement
OR
Crush fracture - compression 25-50 percent
10
Loss of half normal range of movement
Loss of less than half normal range of movement
OR
Crush fracture - compression greater than 50 percent
15
Loss of more than half normal range of movement
Loss of half normal range of movement
20
Complete loss of movement
Loss of more than half normal range of movement
30
-
Complete loss of movement
issues
The issues to be determined are:
Has the applicant suffered a permanent impairment as a result of the injury to his lower back and if so, what is the percentage of that impairment using the relevant tables under the Guide?
Whether the applicant suffers from a permanent impairment of his thoracolumbar spine under Table 9.6 of the Guide arising from his fall at work on or about 12 April 2004.
Whether the applicant suffers from a permanent impairment of his left leg under Table 9.5 of the Guide arising from his fall at work on or about 12 April 2004.
If the applicant does not succeed under s 24 of the Act there can be no determination under s 27 of the Act. If he does succeed under s 24 of the Act with respect to his claim for impairment under either or both tables, then the matter would be remitted to the Department to make a determination under s 27 of the Act.
the hearing
The parties were represented by counsel. A large number of exhibits were tendered to the Tribunal by both parties and were considered by the Tribunal. The T Documents were received in to evidence as Exhibit R1.
The case proceeded over several days. Evidence tendered at the hearing by the respondent included a surveillance video and material produced under a summons from WorkCover and material produced by the Adelaide Magistrates’ Court. This evidence was subject to non-disclosure orders until such time as it was put to the applicant in cross-examination.
The position taken by the respondent at the hearing was that the central issue for determination was no longer whether the impairments suffered by the applicant were permanent but rather whether these impairments existed at all and if they did exist whether their severity had been grossly exaggerated by the applicant.
The applicant initially gave his evidence-in-chief on the basis of some of the evidence being subject to confidentiality orders and without the knowledge that the respondent had this material.
the applicant’s evidence-in-chief
The applicant was 58 years of age at the time of the hearing. He was born in Ireland but has resided permanently in Australia for many years. He adopted the contents of his statement previously submitted to the Tribunal as part of his evidence (Exhibit A1). That statement set out the history of him having a fall from a chair at work in April 2004 at a time when he was the director of the VVCS. He caught his foot on the leg of the chair as he fell and landed heavily on his back. He suffered a back injury as a result of this incident.
After the accident he returned to work for two partial days and thereafter was either off work or back at work on modified duties until December 2004. He has not worked for the VVCS since that date. He underwent a return to work placement in another department between January and July 2006 on modified duties at 13 hours per week. He has not worked since that time. He remains certified to work on modified duties.
In his statement (Exhibit A1) he describes the treatment that he received for the back injury and its sequellae and his personal attempts at rehabilitation. He describes walking and cycling on a regular basis as well as doing stretching exercises as part of his routine to maintain function and prevent further deterioration of his back.
There is no reference to any prior compensation claims in that statement. It also details his very active involvement in sport prior to the accident at work. At paragraph 11 onwards of his statement he outlines the difficulty and impairment he now experiences with his back and left leg. He refers to suffering from persistent pain in his back and leg which usually severely limits his capacity to walk or cycle any distance or drive a vehicle. He acknowledges there are occasions when he has more flexibility and he takes advantage of these occasions.
His evidence-in-chief was that the only prior medical conditions from which he suffered prior to commencing his position as the Acting Director of the VVCS in the year 2000 was spasmodic torticollis (a condition of the neck) and diabetes.
In his evidence to the Tribunal he described in more detail how the accident at work occurred. He had been sitting at a desk and as he got up his trouser leg caught either the base of the chair or a suspended file that was sitting underneath the chair. He lost his balance and fell and consequently landed on his lower back and bottom. He described being “winded” and experiencing considerable pain at the time. He described it as “a quite spectacular fall” and he required assistance to get back to his feet. His wife collected him from work later that day and he saw a medical practitioner the next morning. His medical practitioner prescribed painkillers and anti-inflammatory medication and referred him to a physiotherapist.
Thereafter he had extensive treatment in an effort to improve his back and leg pain. He received physiotherapy treatment from a number of physiotherapists. He undertook extensive gym work, he had massages, he did training work to try to increase movement in his lower back, and to strengthen his abdominal area he tried Pilates. Despite all this treatment he claims to continue to be significantly adversely affected and disabled by back and leg symptoms arising from the fall.
In May or June of that year, he was referred to see Dr Suzette Blight and he first saw her in October of 2004. She has been his treating occupational physician since that time.
His evidence was that he had no physical disability that had impinged on his work capacity prior to the accident and that he was previously actively involved in playing a number of sports and in particular tennis, soccer and golf. He enjoyed walking on the beach for up to two hours each day. He has not been able to play any sport since the accident at work. Exercise is important for the management of his diabetes. At one stage some years ago he had significantly elevated blood sugar levels and had been hospitalised for a period. An endocrinologist assist him in the management of the treatment of his diabetes.
Since the injury he was not able to walk for most of the time without experiencing significant discomfort. This discomfort is predominantly in his back which he described as being in constant pain. He said that the pain in his leg varies from time to time. He said there are days when his leg is free of pain and other days when he is unable to walk at all because of pain from his lower back down to his knee.
He has lived for five years in a townhouse with stairs which is situated close to the beach. He has modified the townhouse and moved the bedroom downstairs to accommodate the difficulties that he has dealing with stairs or slopes. He described his particular locality at Glenelg as being “very level” and although he walks on the beach, he described himself as being self-conscious when walking. He described his walking as being “difficult.” He acknowledged that there are steps to the beach near him and he usually uses the stair-rail to go up and down the steps. On days when his back is particularly sore he said that he would not even consider using the stairs and he described that as being the majority of the time.
With respect to his ability to drive a motor vehicle his initial evidence was as follows:
“for lengthy periods of time I’ve not been able to drive at all, and that’s just because I’ve been painful with my leg, operating the car, it’s been painful with my back, movement from side to side, it’s been painful getting in and out of the car. When I have been able to drive it’s been – usually, when it’s been essential and probably almost always when it’s been locally and areas within, probably – I’m guessing, a kilometre …”
He described becoming anxious and panicked when driving away from his home and “fearful” that his back may go into spasm. Getting in and out of the car is “very difficult” for him and he generally finds the movement of moving his legs difficult when driving.
He sees a psychiatrist, Dr Tony Newcombe. He was seeing him prior to the accident. He described the main work that he has done with Dr. Newcombe as being related to the impact of the back injury upon him.
cross examination of the applicant
In cross-examination the respondents sought to challenge the applicant's credibility.
A Health Status Assessment Form was put to the applicant (Exhibit R2) which he had completed when applying for the position of Clinical Coordinator at the VVCS in December 1999. The applicant acknowledged his signature on the declaration at the end of that document. He acknowledged, albeit somewhat reluctantly and after some prevarication, that he had not been accurate or truthful in his answers to a number of the questions on the declaration.
He had responded that he did not drink alcohol when in fact he did. He then acknowledged a prior conviction for driving with a blood alcohol level in excess of the prescribed level in the mid-1990’s. He agreed that he consumed alcohol socially. His explanation for not accurately answering that particular question was that he did not consider his alcohol consumption to be relevant to his work.
He had also incorrectly answered No to the following questions.
Have you had any work related injury or illness?
Do you suffer from a nervous or mental condition?
Do you suffer from anxiety or stress reaction or depression?
Do you suffer from back or neck pain or injury?
Have you had any accident or operation?
He agreed that he had pursued a workers’ compensation claim for a depressive disorder when he was working for Community Living Options at Victor Harbour. The claim was made in 1996. He acknowledged that at the time he had several months off work on full pay and then moved to part time work in Adelaide and received top up WorkCover payments for a further period in excess of a year. He maintained that he had received workers’ compensation for only two to three months however when faced with evidence that he had received payments for a much longer time, he conceded that he received payments for in excess of 12 months.
He gave several reasons for falsely completing the declaration (Exhibit R2). He professed memory difficulties with respect to when that period occurred and for how long he had received workers’ compensation payments. He then claimed to have given a false answer because he was “embarrassed” about the nature of the injury. He then said that he had blocked from his mind the prior claim. He then referred to having a breakdown while working with this particular employer at Victor Harbour and he referred to having “a very difficult time” as an excuse for poor recollection.
On the same form under the heading Occupational History he had been asked to list his previous jobs of more than six months duration. He had not listed that particular position with Community Living Options even though he had listed positions on the form that he had held back to 1990. He excused this omission by referring to the limited space on the form and by suggesting that he must have submitted an independent CV that contained the correct information.
The applicant acknowledged that he had been diagnosed with spasmodic torticollis (a neck condition) prior to completing the health status assessment form but had not mentioned any neck condition.
He denied any previous operation or accident. Evidence was adduced (Exhibit R9) that appeared to establish that he had attended at the Flinders Medical Centre in 19996 complaining of an injury caused as a result of a fall off a horse. He denied that this incident ever occurred. He could not remember this attendance at the Flinders Medical Centre.
The applicant then volunteered that between the time of the interview for the position with the VVCS and the time that he was appointed to the position he had telephoned a director of the Service and had admitted his false responses in the Declaration. He had still been awarded the position.
He was then shown a complaint and summons (Exhibit R4) whereby he had been charged with 52 counts of fraudulently claiming travel expenses from WorkCover between May 1997 and November 1998. He acknowledged that he had made false claims for travel expenses and that he had pleaded guilty to 14 of these charges. He agreed that the offences involved him actively submitting false claims to his employer. He agreed that he had been sentenced to 8 months imprisonment that was suspended upon him entering into a good behaviour bond.
He once more volunteered that he had disclosed the fact of these convictions to the Director of the VVCS between interview and appointment and after he had discovered that he would be subject to a police check as part of the appointment process.
The applicant claimed that he had no legal representation with respect to these offences. The court case history that was presented to him indicated that he did have a legal representative (Exhibit R5). He then recalled having such representation.
Further documents were put to the applicant which established that he had a second and earlier workers’ compensation claim in 1994 for anxiety and or depression and was away from work for a brief period. Confronted with this evidence he once more blamed his memory for his failure to declare it to VVCS or to the Tribunal when questioned about prior claims.
The applicant had prepared and sent to the Tribunal a letter that accompanied his application for review (T1/5). It was dated 31 May 2006. The applicant was cross-examined about statements made in that letter and in particular the following two statements:
·“At no time during this period despite extensive treatment has any treatment prevented or reversed the pain or immobility;” and
·“I have been unable to drive a motor vehicle since March 2006”
When asked about the first of the statements he responded that he had “good days and bad days” but that the general picture had not changed in that time and that he suffers an underlying constant level of pain. When asked about the second of these statements he remained adamant that he had been unable to drive a motor vehicle at that time but agreed that now he drives occasionally very short distances and then only in familiar terrain. He eventually conceded that in March 2006 he was not driving a vehicle because he was disqualified for driving a motor vehicle for six months as a result of a traffic offence.
He was asked to consider a questionnaire with respect to non economic loss that he and Dr. Blight had prepared together (T30). It was partly in his own handwriting. He had signed the document. There were numerous statements in that document referring to his significant levels of pain and discomfort associated with the injury. It contained several statements that he was unable to drive as a result of the constant level of pain and extreme discomfort. He had also stated that he was seeing a psychiatrist for treatment for an adjustment disorder which arose as a sequelae to the back injury. He stated that he was unable to participate in any of the extensive pre-injury recreation or leisure activities that gave him satisfaction and he included in that walking.
Counsel put to him that he had once more signed a declaration knowing that the information in that declaration was misleading and incorrect. The applicant had great difficulty accepting this proposition and continued to try to justify his statement on the declaration that he could not drive at all as a result of his back injury as being in some way truthful while at the same time acknowledging that he could not drive at the time because he was suspended from driving.
His evidence at that point with respect to his driving after his disqualification ended was as follows:
“I would say on very, very, very few occasions, very few occasions … commonly as a matter of necessity in order to try to continue to lead some semblance of normal life, but none of the things that we would have done before in driving.”
He conceded that the statement with respect to driving and walking was not entirely correct in that he had done some cycling and walking “occasionally.”
The respondent then sought leave to adduce some surveillance evidence and then continue the cross-examination of the applicant. The surveillance evidence comprised a DVD of the applicant taken over a number of days. The surveillance report contained at Exhibit R10 comprises a summary of the video.
The applicant had been covertly filmed carrying out daily activities over a number of days in February of 2007. The surveillance started on 7 February 2007 and then continued episodically until 14 February 2007. The DVD was shown to the applicant and the Tribunal and then his cross-examination resumed.
The surveillance evidence showed the applicant in different situations walking, driving, bending, lifting, cycling and using stairs during the period of the surveillance.
When cross-examination resumed the applicant conceded that he had appeared to walk at a brisk pace on the beach for 40 minutes at Glenelg on 8 February 2007 and that he had appeared to walk at an even pace without difficulty. He explained this apparent inconsistency between the observations on the DVD and his prior evidence and statements by saying that it must have been a particularly good day for him and “a rare event that he could walk so well.” He was sure that he must have been in considerable pain. He claimed to have done a walk like that half a dozen times in the last six months. He eventually acknowledged the walk was for several kilometres.
When confronted with the inconsistency between his statement to Dr Hayne that the maximum he could walk on level ground was one kilometre and his ability to walk a distance of several kilometres as demonstrated by the DVD he claimed ignorance of the actual length of a kilometre as his explanation for this inconsistency. He said that he was poor at judging distances.
It was put to the applicant that the surveillance evidence demonstrated that he could ride a bicycle considerably greater distances than disclosed to his treating medical adviser Dr Blight. The DVD showed him cycling from Glenelg South to Grange and back on the one day. This was a distance well in excess of the 500 metres he had told Dr Blight that he could cycle “with pain.” He had difficulty accepting this proposition even when he was reminded that at an examination in March 2007 and at a date after the February bike ride he had told her that the maximum distance he could ride a bike was 500 metres and that was “with pain.” He once more fell back on to his lack of recollection and the “good days and bad days” explanation to justify this apparent inconsistency. It was put to him that he had misled Dr. Blight on that occasion. He did not agree. He commented at one point:
” I imagine I didn't mention it because it didn't come up.”
The evidence continued at some considerable length with the applicant trying to explain the apparent inconsistency between activities depicted on the DVD and his prior evidence to the Tribunal and contained in statements in the T Documents and his prior statements to medical practitioners.
He acknowledged that the DVD showed him walking up and down stairs with apparent ease and without using the rail. On the occasion of his beach walk he was seen to come back down the stairs near to his unit at Glenelg without using the rail. On the occasion of a Valentine's Day picnic that he had set up on the beach he was filmed using the same stairs without using the rail and while carrying objects. On that occasion he carried an umbrella and deck chairs down the stairs to the beach and then later returned carrying a picnic basket in his left hand and a beach umbrella in his right. He conceded that the film showed him using the stairs without using the rail. On one occasion he was seen taking two stairs at a time.
As part of his preparations for the picnic with his wife on 14 February 2007 he was filmed lifting rocks to stabilise the beach umbrella. Counsel put to him that the rocks that he was lifting were heavy and weighed more than 4 to 5 kilos. He agreed with that proposition and said that he was pushing himself beyond recommended boundaries on that day. His medical certificates for return to work said that he was not fit to lift more that 4 to 5 kilos.
It was put to him that the film showed him entering and exiting his car with ease on a number of occasions and also driving on each day between 10 February 2007 and 14 February 2007. This was compared with his prior statement that he “rarely” drove a vehicle. The applicant gave the “good week, bad week” explanation and then finally conceded that he drove short distances frequently and probably two or three times a week. He agreed that his level of activity as shown on the DVD was excellent. On one of the drives depicted in the DVD he drove a considerable distance to visit a relative which took him to the southern fringe of the Adelaide suburbs.
His evidence with respect to use of medication was that he took Panadeine Forte very rarely for pain and that on a “bad week” he would take panadol five times per week. He was also currently taking medication prescribed for anxiety by his psychiatrist.
He did not agree that he had overstated his symptoms to medical advisers nor would he accept that he had been misleading the Tribunal or Comcare or that he had exaggerated his symptoms for the purposes of his claim.
There was some exploration by counsel of the psychiatric sequellae alleged by the applicant in his non economic loss claim form (T30). A report from his treating psychiatrist, Dr Newcombe, which was prepared for a sentencing magistrate in 2005 was shown to him. On that occasion the applicant had been charged with driving with excessive blood alcohol and was pleading guilty. In that report Dr Newcombe diagnosed the applicant as suffering Post Traumatic Stress Disorder as a result of his childhood in Belfast and commented in the report on the “excellent rehabilitation he has made from his back injury.” That report was received as Exhibit R13.
re-examination of the applicant
In re-examination the applicant endeavoured to deal with the issues that arose in cross examination as to his credit and as to his capacity to carry out the activities depicted on the DVD. He went from having had little recall of his walk on the 8 February 2007 during cross-examination to having an excellent recall that extended to detail as to the pain and fatigue he recalled suffering at the conclusion of that particular walk, the memory that he was in pain in the afternoon, had a restless evening and was “much more immobilised” the next day.
He used the re-examination to detail the “substantial pain” that he recalled suffering on the evening of St Valentine’s Day, something that he had omitted to mention when being cross-examined about this event. He thought he probably was forced to take Panadeine Forte that evening and then upon further questioning he specifically recalled taking this medication that evening.
In the course of re-examination the applicant produced some photos of the front drivers seat of the Hyundai motor vehicle that he had been filmed driving in the DVD (Exhibit A19). The photos showed damage to the rear right hand upper corner of the driver’s seat. The applicant’s evidence in relation to these photos was that when he enters the vehicle he leans heavily on the upper corner of the seat to slide himself into the vehicle and that damage has occurred over a period of around 18 months.
dr blight’s evidence
Dr Blight was the only medical witness called by the applicant. She is an occupational physician who has been seeing the applicant on a regular basis since 2004. Her notes were received into evidence (Exhibits A7 and A8), as was her report of October 2006 (Exhibit A13). She had viewed the surveillance evidence prior to giving her evidence and had produced a useful summary of what she considered to be the key points of the DVD (Exhibit A12).
When she first saw the applicant she was in possession of an MRI scan of his back (Exhibit A10) dated the 22 September 2004. That scan indicated:
“an L5/S1 disc protrusion to the left of the mid-line which is contacting the emerging S1nerve root in the spinal column…there is also an annular tear at L5/S1- ”
She also had at the time a CT of his lumbosacral spine done in on 8 June 2004 (Exhibit A9) along with a report from Frank Vovyodich.
She has seen the applicant approximately monthly since October 2004. On four of these occasions she had carried out a functional assessment with respect to the applicant. On only one of these occasions had she used the Comcare Guide. She uses a table to record her functional assessments that she based on an American reference book. The table and an excerpt from the reference book were received into evidence as part of Exhibit A20. Based on that particular reference the normal range of movement of the lumbar spine was taken to be 80 percent.
Some time was spent in evidence trying to clarify her approach to assessment of spinal function. Her evidence to the Tribunal was that she took normal range of movement of the lumbar spine to be 90 percent (contrary to the 80 percent figure used in her letter received as Exhibit A20). She indicated on the tables that normal range of movement for lateral rotation was 45 degrees but she then agreed with Professor Reilly that the normal lateral range of movement was 10 degrees. The table had been devised by her as an aid to assessing function and recording her findings. The Tribunal and the other medical expert witness had some difficulties in understanding the methodology she had devised for recording range of movement of the spine.
Her overall assessment of the applicant’s level of impairment was that he had a 20 percent impairment of his thoracolumbar spine under Table 9.6 of the Guide and a 20 percent impairment under Table 9.5 of the Guide. This remained consistent with her assessment contained in the T documents at page 101.
It was her view that these impairments were permanent by October 2005. She did agree with the observation made by the medical member of the Tribunal that some people with an injury such as that shown on the MRI scan would recover and have no disability at all. There were no more recent scans available to the Tribunal. Her evidence with respect to that was that she would have liked to have seen a more recent scan of the applicant’s spine but she had avoided having one carried out as she was concerned that it may interfere with the Tribunal’s assessment of the matter in that it would show further change in the applicant’s spine.
She had referred the applicant for assessment by a neurosurgeon, Dr McDonald in 2005. His report was at A11. He had expressed the view that the applicant’s pain was “more in keeping with facet pain” which would not have been related at all to a discal injury. He had recommended some facet blocks. Dr Blight had chosen not to accept this view or follow this course with the applicant and had maintained her own view that the pain from which the applicant suffered related to the discal injury. She rejected any suggestion that the appearance of some calcification around the disc protrusion could indicate an older injury than the one sustained in 2004.
She was asked to view the surveillance DVD once more. When the DVD showed the applicant bending over the bike and pumping a tyre she was convinced that his knees must have been bent although she felt “bothered” by one scene when she observed him to be in her words “leaning right over the bike.” Her explanation for this possible inconsistency between her findings as to the ROM of his thoracolumbar spine and his actions on the DVD was that he may be “tolerating pain”.
With respect to the beach walk of 8 February 2007 she acknowledged that he demonstrated “a lot of flexibility” on that day. She expressed surprise that he could walk so fast on the beach but she was convinced that she could interpret exhaustion and intensity in his facial expressions and that he must have been “pushing himself” at the time.
Her notes had recorded that on the 30 October 2006 the applicant had told her that he could walk for 200 to 300 metres before having an increase in back and leg pain. On 23 March 2007 at a date after the surveillance was carried out, the applicant had reported to her that he had walked for an hour.
She found no inconsistency with the bike ride depicted on the DVD and her findings as to his impairment even though on the 23 May 2007 she had recorded in her notes:
“cycling flat ground-low gear 500 metres with pain-25—”
With respect to the Valentine’s Day picnic and the preparations leading up to it she had “some concerns” but again was convinced that on that particular day he was over exerting himself and pushing himself beyond normal limits because it was a special occasion. She was very concerned to see him bend and then lift heavy weights but was convinced that he must have been bending his knees at the time. She considered that he was certainly “exceeding recommended limits” on that day.
Dr. Blight had carried out a test of the applicant's ability to climb stairs when he attended at her rooms on the 24 October 2006. In her report at Exhibit A13 she made the observation that he was observed to descend and climb 15 steps in a stairwell. She described the following:
“he held onto the banister with his left arm when going down the stairs and took the steps one at a time with his right going first and his left leg coming down to the same level before he proceeded down. He also had difficulty walking up the stairs and climbed the stairs holding on to the banister with his left arm but did not have to take every step one at a time and intermittently took one step at a time.”
Her conclusion on that occasion was that he had “significant difficulty in negotiating the stairs.”
She was asked whether his action on the stairs as demonstrated in the surveillance DVD was consistent with her prior observations. She commented that he might have had some leg pain while using the stairs. When he descends the stairs after his beach walk on the 8 February she interpreted exhaustion in his face. She acknowledged that his ability to use the stairs on 14 of February was inconsistent with her observations as set out in her previous report.
She agreed that her assessment of his function and level of impairment was conditional upon the applicant honestly engaging in the mobility tests and providing an accurate history. She had no prior knowledge of the applicant falling off a horse and she had no knowledge of prior WorkCover claims by the applicant. She continued to adamantly support her patient’s claim. To her the “good day, bad day” explanation and her personal perception of the applicant's internal motivation was a sufficient explanation for any inconsistencies that she had observed in the DVD.
Dr Haynes’ evidence
Dr. Haynes gave evidence for the respondent. He had prepared two separate reports for the respondent. The first was prepared in February 2006 and was contained in the T documents. The second report was dated 27 September 2006 and was received into evidence as Exhibit R14.
When he first saw the applicant he took a history of the injury sustained in April 2004. The applicant had reported at their first meeting that he was “almost unable to drive his manual car due to back and leg pain”. He had complained of significant ongoing pain in his lower back mainly on the left side that radiated occasionally down his left leg as far as his foot with the symptoms worsening when he was sitting. He reported developing symptoms of anxiety and depression for which he was being treated by Dr. Newcombe.
On that first occasion Dr. Haynes formed the view that his injury had not stabilized but that the applicant did have an obvious significant structural injury to the L5\S1 disc and he considered recovery would be protracted.
On the second occasion that he saw the applicant in September 2006 he carried out a test for range of movement of the spine. In his second report he expressed concern about the genuineness of some of the applicant's responses to testing. He expressed the view that his pain response to light palpation in the lumbar region was not organic and he was doubtful that the applicant was making a genuine effort with movement when spinal movement was being tested. On that occasion he visually observed that the applicant had good muscle development in both calves although he did not physically measure the applicant’s calves.
His conclusion at that time was that the applicant had no whole person impairment under Table 9.5 of the Guide as he could walk one kilometre, had good muscle development in both legs and he did not consider that the applicant would experience significant difficulty with negotiating grades and steps. He did not specifically carry out a test of his ability to deal with grades and stairs.
he formed the view that the applicant demonstrated a loss of more than half the normal range of movement in the thoracolumbar spine and assessed him as having a 20 percent whole person impairment under Table 9.6 arising from his back condition
By the time Dr. Haynes gave evidence at the hearing he had viewed the surveillance evidence. He was asked whether he still maintained his views as expressed in his reports with respect to the levels of impairment suffered by the applicant. His response was that he had altered his views as a result of viewing the surveillance evidence. He commented:
“Mr. Baird is observed in the DVD flexing his back to a much greater range than I observed during my examination. He is also observed walking considerable distances, climbing stairs and riding a bicycle…it confirms my view that he did not have an assessable impairment in regard to the lower limbs.”
He went on to say that he would change his assessment with respect to the applicant's level of impairment under Table 9.6 as in his view he demonstrated a much increased range of spinal movement in the DVD. He had now formed the view that he had nil impairment under Table 9.6. He considered that the surveillance evidence merely confirmed his prior finding of nil impairment under Table 9.5.
He was asked to comment on specific sections of the DVD. With respect to the beach walk he commented that if the applicant was genuinely suffering from the level of pain that he alleged he would expect him to walk in a “guarded fashion”. He considered that the applicant appeared to walk in a fairly free and unrestricted manner and without obvious difficulty. The way in which the applicant knelt to do up his shoelace showed some consistency with a person that had some degree of back pain with bending.
With respect to the sequence outside a bike shop on the 7 February he considered the applicant showed 90° flexion of the spine when bending over the bike at one point.
With respect to his ability to deal with stairs he considered that in the sequence on 8 February 2007 when the applicant was walking up from the beach on the stairs there may have been a slight limp when he went down the stairs. When shown the stairs sequence of 14 February 2007 he considered the applicant showed no difficulty at all in dealing with stairs on that occasion.
He expressed the opinion that when lifting the rocks the applicant was again bending his spine to 90°. He expressed the view that even if there was some bending of knees by the applicant he was still showing a range of movement well in excess of what he had demonstrated in the clinical setting.
Dr. Haynes was asked to comment on the fact that Dr. Blight had measured the applicant's calves and discovered that there was a 1.5 cm difference in the circumference between the right and the left leg, Dr. Haynes response was that there is a significant error factor in making such measurements and he did not think that much could be made of such a small difference in measurement in any event. He considered that his visual test was adequate.
Dr Haynes maintained that the surveillance evidence provided the best evidence of the applicant’s functional ability and he gave him a zero impairment rating under each of the relevant Tables of the Guide.
Other medical evidence
Other medical evidence included reports from physiotherapists and some, much earlier, psychiatric reports that predated the injury and established them well prior to the injury the applicant appeared to be suffering from psychiatric problems. A report from his general practitioner Dr. Solanki directed to Comcare was at T7/59.
The tribunal’s assessment of evidence and the witnesses
The Tribunal viewed the DVD on a number of occasions during the hearing and reviewed that evidence once more when the hearing was complete.
The Tribunal’s observation was that in the sequence outside the bike shop the applicant was able to bend his spine such that his hands were well below his knees and he appeared to demonstrate movement of the thoracolumber spine that was more than half the normal range of movement for a person. The sequence outside the bike shop showed normal and comfortable back movements in a sequence with him straightening and then bending with a normal rhythm. There was no evidence of difficulty in straightening his back nor was there any evidence of stiffness and discomfort at the conclusion of the sequence when he is fixing his bike.
The applicant was an adept walker. In the beach sequence on 8 February, he walked at some speed, he kicked a stone with his right leg, and he walked in a symmetrical fashion showing no limping. He walked with an upright stance. There were no positive signs of any pain on his face or difficulty in his movements or bearing that the tribunal could observe. He appeared to have good leg function. He was slow coming down the stairs at the end of the walk, however he showed no pain or dysfunction but rather appeared distracted.
The applicant was a skilled and comfortable bicycle rider. He was able to ride without using his hands and he was able to balance the bike against a wall with only his feet while he straddled the seat. He rode a considerable distance with ease, albeit on a relatively flat bike track – nevertheless he could easily balance and manoeuvre the bike, and he could do so without using his hands.
The Tribunal observed once more the sequences that showed the applicant getting into and out of a vehicle. His evidence had been that he used his hands to lean on the back of the seat as he enters the car because of his back difficulties. At no stage in the DVD was there any indication of him having to use his hands to lean on the seat when getting in and out of the vehicle. He appeared to move in and out of a small vehicle with ease. There was one occasion on the DVD when the applicant places his hand on the middle of his torso and extends his back. The Tribunal accepts that this may be an indication of a mild degree of back stiffness or pain at that time. It was a fleeting movement only and he then continued walking down the road with no sign of discomfort or difficulty.
Dr Blight accepted without question that the applicant was honest with her at all times and her assessment of his impairment and the cause of it was based on that assumption of honesty. She accepted that his injury was a compensable injury The Tribunal did not find at all convincing her attempts to explain the significant inconsistencies as to the applicants level of function on the surveillance DVD with the history of loss of function and pain previously provided to her by him. She showed admirable support for her patient but little capacity for objectivity when confronted with the surveillance evidence.
Dr. Haynes, instructed by the respondent, had made a positive finding of impairment under Table 9.6 prior to seeing the surveillance evidence and despite having some doubt about the genuineness of the applicant's presentation at the time. He altered his opinion after viewing the surveillance evidence and in the Tribunal's view he showed a greater capacity for objectivity when confronted with the inconsistent evidence on the surveillance DVD. He tried to be fair in assessing the surveillance evidence but kept returning to his fundamental belief that based on what he had seen it was impossible to assess the applicant as having any level of impairment under either of the tables.
Where there is an inconsistency between the evidence of Dr. Blight and Dr. Haynes the Tribunal prefers the view of Dr. Haynes.
The Tribunal found the applicant to be an unsatisfactory witness. There were too many inconsistencies between his evidence and the objective evidence available to the Tribunal for the Tribunal to find otherwise. The applicant endeavoured to explain his mistruths and inconsistencies but not convincingly. He appeared to not appreciate the difference between truth, exaggeration and outright lying. His memory fluctuated depending on whether it suited him to recall an occasion or not
The Tribunal concluded that it could not rely on his evidence in reaching its decision and looked to the objective evidence available to determine the matter. The surveillance evidence became an excellent independent witness.
findings of fact
The Tribunal makes the following findings of fact on the balance of probabilities.
MRI scans show that the applicant has an L5\S1 disc protrusion to the left of the midline which is contacting the emerging s1 nerve root in the spinal column. There is also an annular tear at L5\S1.
This injury may have occurred when he fell from a chair at work in 2004.
Any impairment that the applicant continues to suffer as a result of that injury is permanent.
It is likely that the applicant suffered some pain and discomfort when the injury occurred and this may have caused him ongoing discomfort and affected his ability to carry on his daily activities for some time after the incident that caused the injury.
Whatever the applicant's discomfort was at the time of the incident which caused the discal injury, he has made a good recovery.
The applicant can bend forward to between 70 and 90° in forward flexion without obvious difficulty. He is able to move in and out of a small vehicle with apparent ease. His ability to clean a motor vehicle windscreen indicates a good range of lateral movement. He is able to bend and return to an upright position without any obvious difficulty pain or stiffness.
The applicant suffers some minor discomfort in his back from time to time and it is likely that periodically pain does radiate into his leg, consistent with the objective clinical findings. Nevertheless, any ongoing impairment is minimal. He is likely to have some minor restriction in back movement from time to time in that he suffers occasional back stiffness after activity.
The applicant is able to walk a distance of around at least 2.5 km with apparent ease. He can walk briskly and with an even stance. His walking shows no limitation of leg movement or apparent pain in his left leg when walking. He does not limp or favour one leg over the other.
The applicant is able to ride a bike on relatively even surfaces with apparent ease and with some skill. He is able to ride a number of kilometres without difficulty. He is able to use his body to balance and manoeuvre a bike while riding without using his hands.
The applicant ascends and descends stairs without any obvious pain limitation or difficulty. He is able to carry objects in both hands while using the stairs and he does not need to use the rail.
The applicant regularly uses a motor vehicle without difficulty.
Consideration and Application of the Law
For the applicant to succeed in this case he must satisfy the Tribunal that he has a permanent impairment arising out of a compensable injury that occurred in the course of his employment.
The respondent has accepted liability for the injury. Although at times the respondent ran their case as though challenging the issue of liability that matter is not before the Tribunal. The Tribunal is to consider the issue of whether he suffers a permanent impairment or impairments arising out of the compensable injury.
“Impairment” is defined in s 4 of the Act. It is:
“the loss, the loss of use, or that damage or malfunction, of any part of the body or of any bodily system or function.”
“Permanent” is defined under section 4 of the Act as meaning “likely to continue indefinitely.”
Section 24(2) sets out the factors that the Tribunal must consider when determining whether or not an impairment is permanent (supra paragraph 12).
Based on the decision in Canute and Comcare (2006) 91 ALD 552, the Tribunal is satisfied that it can consider the impairment arising from the back injury under two separate tables namely, Tables 9.5 and 9.6 of the guide. More than one injury can arise from a workplace incident and multiple impairments can arise for an injury. Each impairment is considered separately under its own relevant table of the Guide.
The applicant contends that two separate impairments arise from the work-related injury he suffered on 16 August 2004 and that they are to be considered under two separate tables of the Guide.
To achieve a whole person impairment rating under either table he must achieve a minimum rating of 10 percent under that table. He contends that he is entitled to a 20 percent impairment rating under each of the applicable tables.
To attract a percentage impairment of 10 percent under Table 9.5 of the Guide, he must establish that he can rise to standing position and walk but has difficulty with grades and steps.
In Comcare v Fiedler (2001) 115 FCR 328, the Full Federal Court considered the interpretation of the word “difficulty” in the context of Table 9.4 of the Guide. They said:
“... The word ‘difficulty,’ like most ordinary English words, has no fixed meaning but is, as the Tribunal observes, a word capable of covering a broad spectrum of restriction and disability in the context of a phrase such as 'difficulty with digital dexterity’ in Table 9.4. According to the Macquarie Dictionary (3rd ed, 1997) ‘difficulty’ connotes a range of conditions from being ‘not easy’, to being ‘hard to do’, to ‘requiring much effort’. According to the Oxford English Dictionary (2nd ed,1989) it connotes notions of not being easy, of requiring effort or labour, of being troublesome or hard to do, perform or carry out. ”
In the case of Comcare v Moon (2003) 75 ALD 160, Justice Mansfield commented as follows when considering the concept of “difficulty” under Table 9.5:
“ ... In my view, it is a question of fact in each case as to whether pain experienced in activity presents a ‘difficulty’ with that activity, or whether it is simply a consideration going to ‘lifestyle effects’. ... The term ‘difficulty’ in, for example, table 9.5, is not a term of art, but carries its ordinary meaning…”
The Tribunal had the opportunity to view the applicant walking and using steps and has already made the finding that he walked at speed with apparent ease and with no sign of what the tribunal would consider to be “difficulty” in the ordinary sense of the word. He was able to use stairs with ease. He showed no uncertainty or lack of balance or discomfort in using steps. It may be that he experiences occasional back discomfort when walking or when using stairs however occasional discomfort is not sufficient to bring him within the definition of what would be required to provide him within 10 percent impairment rating under Table 9.5. Based on all the available evidence the Tribunal does not accept that there is any acceptable evidence that the applicant has any difficulty with grades and steps.
The Tribunal is satisfied that the applicant was not making a genuine effort when Dr Blight asked him to do a stair test in October 2006 and upon which she subsequently provided a report. His real ability was demonstrated in the surveillance situation when he was not aware that he was being observed.
The Tribunal notes that the decision of the delegate of 15 March 2006 was that the applicant did not have an impairment rating under Table 9.5 as there was the likelihood of improvement in the leg pain. The Tribunal substitutes its view that any minor impairment in the leg is now permanent and attracts a zero percentage rating under the Tables. The Tribunal therefore affirms the decision that the applicant has no entitlement to compensation under s 24 of the Act for leg pain under Table 9.5.
The Tribunal now turns to the issue of impairment under Table 9.6 of the Guide. Both doctors, in their reports and based on both the history provided by the applicant and their own tests, had assessed him as having a 20 percent whole person impairment under Table 9.6 of the Guide. After viewing the DVD evidence Dr Blight maintained her position and Dr Haynes altered his position to that of the applicant having a nil impairment under the Tables.
The Tribunal has already outlined its view of the medical evidence and its own observation of the DVD. To achieve a 10 percent impairment rating the applicant must establish something that is more than minor restrictions of movement and is a loss of less than half normal range of movement of the thoracolumbar spine. To achieve a 20 percent rating he must establish a loss of half normal range of movement of the thoracolumbar spine.
The Tribunal accepts Dr Haynes’ view that the applicant does not have an impairment of the thoracolumbar spine under Table 9.6 that would entitle him to any compensation. Dr Haynes’ opinion, based on a viewing of the surveillance evidence, was that his loss of range of movement of spinal was nil.
The Tribunal is prepared to accept that he has a minor discomfort of the lumbar spine from time to time, based on the history of the matter, on the objective evidence available an on the fact that there were occasions on the DVD when he showed very minor back discomfort. This does not, however, entitle him to any compensation under Table 9.6.
The Tribunal affirms the delegate’s decision with respect to the applicant’s entitlement under Table 9.6, but on the basis that the impairment is now permanent and represents a 0 percent impairment under Table 9.6.
I certify that the 144 preceding paragraphs are a true copy of the reasons for the decision herein of
Senior Member L Hastwell
Professor P Reily AO (Member)
Signed: .....................................................................................
Associate
Date/s of Hearing 26-27 March 2007, 29-31 May 2007, 13-15, 22 June 2007
Date of Decision 19 October 2007
Counsel for the Applicant Dr S Churches
Solicitor for the Applicant Mr T White
Counsel for the Respondent Mr R Sallis
Solicitor for the Respondent Ms E Reed
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