CHRISTOPHER FEROS and COMCARE
[2003] AATA 548
•13 June 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] 548
ADMINISTRATIVE APPEALS TRIBUNAL ) No Q2001/270, Q2002/85
) and Q2002/547
GENERAL ADMINISTRATIVE DIVISION )
Re CHRISTOPHER FEROS Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr R G Kenny, Member Date13 June 2003
PlaceBrisbane
Decision
The Tribunal varies the decision under review in that the Tribunal finds that, under Table 9.6 of the Guide, permanent impairment is assessed, for the purposes of section 24 of the Safety, Rehabilitation and Compensation Act 1988, at 5% whole person impairment in relation to the applicant’s cervical spine and 10% whole person impairment in relation to his thoraco-lumbar spine.
....................(Sgd).....................
R G Kenny
Member
CATCHWORDS
WORKER’S COMPENSATION – permanent impairment – injury to thoraco-lumbar spine – injury to cervical spine –Table 9.6 of the Guide to the Assessment of the Degree of Permanent Impairment
Safety, Rehabilitation and Compensation Act 1988 sections 24, 28
REASONS FOR DECISION
13 June 2003 Mr R G Kenny, Member Application
1. In February 2003, Comcare (the respondent) and the legal representative of Christopher Feros (the applicant) signed an agreement pursuant to which the respondent accepted ongoing responsibility for neck and lower back conditions suffered by the applicant on the basis that the conditions were permanent and in which they also agreed that the degree of whole person impairment for those conditions was to be determined by the Administrative Appeals Tribunal (the Tribunal) under the Safety, Rehabilitation and Compensation Act 1988 (the Act). On 4 April 2003, the Tribunal made an order in those terms and, on 20 May 2003, the Tribunal heard the issue of assessment of whole person impairment.
2. The applicant attended the hearing and was represented by Mr R Hume of counsel. The respondent was represented by Mr C Clark of counsel. In evidence were the following:
exhibit 1 - a letter, dated 16 May 2003, from Blake Dawson Waldron Lawyers;
exhibit 2 - a letter, dated 10 April 2003, from D’Arcys Solicitors;
exhibit 3 - a consent order made by the Tribunal on 4 April 2003;
exhibit 4 - the T documents in file Q2001/270 (T1-T30);
exhibit 5 - the T documents in file Q2002/85 (T1-T32);
exhibit 6 - the T documents in file Q2002/547 (T1-T194);
exhibit 7 - a medical report, dated 21 August 2002, from Dr John Schneider, specialist in occupational medicine;
exhibit 8 - curriculum vitae of Dr J Schneider;
exhibit 9 - a medical report, dated 14 May 2003, from Dr A David N White, orthopaedic surgeon;
exhibit 10 - a statement, dated 31 May 2001, by the applicant; and
exhibit 11 - a statement, dated 3 March 2002, by the applicant.
Issues and Legislation
3. Compensation for injuries that have resulted in permanent impairment is paid in accordance with Part II of the Act and section 24 thereof reads:
“24 Compensation for injuries resulting in permanent impairment
(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.
(2) For the purpose of determining whether an 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
(d) any other relevant matters.
(3) 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.
(4)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).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(7) Subject to section 25, where Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section.
(8) Subsection (7) does not apply to any one or more of the following:
(a) the impairment constituted by the loss, or the loss of the use, of a finger;
(b) the impairment constituted by the loss, or the loss of the use, of a toe;
(c) the impairment constituted by the loss of the sense of taste;
(d) the impairment constituted by the loss of the sense of smell.
(9) For the purposes of this section, the maximum amount is $80,000. …”
4. Sub-section 24(5) of the Act provides that the degree of permanent impairment is to be determined under the provisions of the Guide which is the Guide to the Assessment of the Degree of Permanent Impairment as prepared by Comcare pursuant to sub-section 28(1) of the Act.
5. Part A of the Guide comprises groups of tables describing levels of impairment in particular parts of the body. For each level, an impairment value, expressed as a percentage of whole person impairment, is listed. The relevant components of the Guide in this matter are those which relate to the musculo-skeletal system. These are Tables 9.1 to 9.6. The only Table of actual relevance is Table 9.6 which reads:
TABLE 9.6: Spine
%
(wpi)DESCRIPTION OF LEVEL OF IMPAIRMENT
CERVICAL SPINE
THORACO-LUMBAR 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 6. The issue for the Tribunal is the determination of the percentage whole person impairment in the applicant.
Applicant’s Evidence
7. The applicant gave the following evidence.
8. He served in the Australian Army from 1989 until he was medically discharged in 1994. In 1990, he was injured in a motor vehicle accident whilst on duty when the water truck he was driving ran off the road and overturned. He suffered head injuries. Since then, he has undergone neurological treatment which has included 10 surgical procedures in relation to shunts that have been inserted into his skull. The procedures have related to the need for the shunts to be unblocked from time to time. He lives in Mareeba with his parents and has resided there for some six years since the breakdown of his marriage. His parents own a bread run and he worked for them in making bread deliveries for about 1¼ hours per day but is now not able to carry out the work because pain in his back prevents him from lifting the trays of bread.
9. Treatment for his back condition has included massage, physiotherapy and Bowen therapy. He has taken non-steroidal anti-inflammatory drugs at various times and also panadol for pain. He tries to avoid medication because, over the years, he has taken so much of it that his kidneys are damaged. He takes St John’s Wort to help him relax and, in the past, he also took shark cartilage.
10. He is unable to sit or stand in one position for too long because of back pain which is brought on with physical activity or with stress. In the household, he carries out the ironing duties for the family but needs to have frequent rests. He assists with washing and hanging out some of the clothes. He makes his own bed and he tries to help with the mowing. However, he only uses the ride-on mower and only on flat parts of the lawn. The family home is on an acre of land and he looks after the “chooks” and they provide a significant interest for him. He feeds them and collects the eggs.
11. Apart from the work around the house that he is able to do, he rests for much of the day, watches television and also uses his computer. The computer is located on a table which was specially built because he needs to look downwards at the screen due to his neurological problem which has resulted in his loss of the capacity to “up gaze”. He is only able to sit at the computer for 10 to 15 minutes at a time.
12. His neurological problems impact upon his capacity to travel because he is unable to fly at altitude in pressurised aircraft. He has been airlifted by the Flying Doctor and the aircraft was required to maintain low altitude in order to accommodate his particular needs.. He gets enjoyment from driving his four wheel drive vehicle although he has had to have it fitted with orthopaedically designed seats for comfort. He is able to drive for some four or five hours in a twelve hour day but he needs to have rests. He drove from Mareeba to Brisbane for the hearing and it took him four days. When he goes driving, he must have a passenger in case any problems arise such as the need for him to change a tyre.
13. In the past, he enjoyed playing golf, running, which he would do for distances of up to 25 km on four or five days per week, bush walking and football. He was an avid tennis player and still plays the game in Mareeba about once every month or six weeks but does so with the “beginners, oldies and cripples”. He is not able to chase a ball down and, if it does not come to him, he does not try to hit it. He used to enjoy push bike riding until about two years ago but found it was too difficult for him because of his back problems. He has tried swimming but is unable to float and finds that he sinks straight to the bottom. He attempted to go swimming last summer but the sensation scared him.
14. His neck pain has worsened over time and, on some days, it is extremely painful. When he is involved in activities such as ironing he experiences pain in his shoulder blades and around his hips and, generally, over his whole back. When he is driving, he also experiences pain in his shoulders and hips.
15. He recalled seeing both Dr White and Dr Schneider who conducted tests on him. In relation to Dr White, he said that, when he left his rooms, he felt that he had “gone twelve rounds with Mike Tyson – and lost”. In relation to Dr Schneider, he said he also felt sore afterwards and felt that Dr Schneider pushed him further than did Dr White. He was critical of Dr Schneider who caused him to feel pain during the medical examination because, in measuring the range of movement in his neck, Dr Schneider placed his hands over the applicant’s ears and applied pressure in the direction that he asked the applicant to rotate his head and, as a result, pushed his head through a greater angle than he would have been able to do without that pressure. He said that this was for backward and forward movement as well as sideways movements and he said that, at one stage, he screamed loudly because of the pain. He said Dr Schneider took him past an angle that was comfortable for him but that this was not the case with Dr White. When reminded by Mr Clark that he had described himself as feeling like he had been twelve rounds with Mike Tyson after seeing Dr White, the applicant agreed and said that, in the case of Dr Schneider, it felt as if he had been twenty-four rounds with Mike Tyson. He also said that, when he saw Dr Schneider, he had driven from Mareeba to Mackay that day. He also referred to the most recent occasion when he saw Dr White which was in the week before the hearing. He saw him on a Tuesday in Brisbane but had left Mareeba on Friday and had taken four days to come to Brisbane.
Evidence of Cynthia Feros
16. Mrs Feros is the applicant’s mother. She said that the applicant came back to Mareeba in 1994 after his discharge from the Army then returned to live with her and her husband in May 1997. She said that she works twelve hour shifts on the bread run, three days on and three days off and agreed that this meant the applicant was home for four days a week on his own. She said that, until last year, his grandmother was in the home but that she had passed away at that time. Mrs Feros described herself as the applicant’s carer and said that one of the things she needs to do is to ensure that he wakes in the morning which he does not do by himself if one of the shunts in his skull becomes blocked.
17. Mrs Feros said that she encourages the applicant to do things around the house such as keeping his room tidy, preparing meals, ironing and some mowing on the ride-on mower on flat ground. She said that he uses a computer on a specially built table but that he often complains of being in pain. She said that he is only able to carry out duties for a short time and needs frequent breaks. In relation to his activities on the bread run, she said that, initially, he had worked for 1¼ hours at a time, but that, at the moment, he was not able to help because of his back.
18. She said that she massages the applicant several times per month but is unable to do this when she finishes a twelve hour shift at work. She said that he has also tried other therapy in the form of massage from others, physiotherapy and Bowen therapy. She said that he used to play a lot of tennis but now has difficulty with that because of his back. She also said that he used to do a lot of walking with her but that he is unable to do that now and that he can not swim and is frightened of going into the water. She said he finds a lot of comfort in looking after the poultry kept on the family property. She said that he had been taken to hospital in June 2002 but this had only been a “scare” because surgical procedure was not required to unblock the shunt. She said that, in 1998, he had undergone three procedures and had also had a similar scare.
Evidence of Dr David White – Orthopaedic Surgeon
19. Dr White examined the applicant on two occasions. The first was in May 1999 and the second was on 13 May 2003. He provided two reports, dated 24 May 1999 (see T22 of file Q2001/270) and 14 May 2003 (exhibit 9), respectively.
20. In his first report, he stated:
“EXAMINATION
Cervical spine. There was no spasm. He appeared tender in the mid-line from C4 to C6. With forward flexion he was able to place his chin on the chest wall. All other movements appeared mildly reduced but associated with complaints of discomfort. The power, sensation and reflexes of the upper limbs were symmetrical.
Back. He was overweight. He stood erect. There was no scoliosis or muscle spasm. Tenderness was reported in the low thoracic spine and at about L4/5. With forward flexion he could reach to mid-shin. With lateral flexion he could reach 2 inches above either knee. Extension was reduced. Rotation was normal in range but led to complaints of thoracic back pain. He could tiptoe and heel stand with either leg. The power, sensation and reflexes of the lower limbs were symmetrical. The straight leg raising test at approximately 55 degrees on both sides led to complaints of low back pain. This was relieved by flexing his hips and knees and not made worse by dorsiflexing his feet. He was able to sit erect with the legs extended but complained of low back pain while doing so.”
21. In that report, Dr White applied the terms of Table 9.6 and described impairment at 5% in relation to the cervical spine and 15% in relation to the thoraco-lumbar spine. In the latter case, he referred to the loss of half the normal range of movement. In the later report, Dr White’s description of the applicant’s cervical spine symptoms was in almost identical terms to that in his earlier report. In relation to the lower back condition this, again, was in terms similar to the earlier report. In relation to lateral flexion, he said that the applicant could reach two inches above either knee and that straight leg raising was tested at 55 degrees on both sides.
22. In his evidence, Dr White said that a normal person of the applicant’s age should, when standing erect, be able to tilt his head back and look vertically at the ceiling and, in relation to lateral flexion of his neck, place his ear on the adjacent shoulder. In relation to forward flexion, he said that such a person should be able to bend forward with knees straight and touch his toes. He also said that there was no appreciable difference noted in the applicant in the two examinations that he had conducted but he said it was possible that, on different days, a person could present with different ranges of movement depending how they feel on those days.
23. In cross-examination, Dr White was asked why the reports were almost identical in their expression and description of the applicant. He agreed that there was similarity in the descriptions used but said that was because of the nature of the findings. He also said that they were not precisely the same as some variations in the ranges of movements were noted. He agreed that the references to the capacity to engage in straight leg raising did not have an impact on the loss of range of movement of the spine. In relation to reports by other doctors, Dr White said that different descriptors are sometimes used in describing movement limitation but said that he preferred to state how far a person could reach than by using other measures. Dr White was referred to the report of Dr Schneider where the normal range of extension of the spine was described as being 30 degrees. He said that he disagreed that this would be the case with the applicant. He also was referred to the description given by Dr Schneider of the applicant as being “physically deconditioned” and expressed the opinion that physical fitness and being overweight would not significantly affect the range of spinal movements.
Evidence of Dr John Schneider – Specialist in Occupational Medicine
24. Dr Schneider examined the applicant in August 2002 and prepared a report dated 21 August 2002 (exhibit 7). He said that he examined him for approximately 1¼ hours and then spent a further 45 minutes reviewing the briefing documentation, clinical information and in preparing the report which, in part, read:
“On examination of the head and neck, in addition to the scars on his scalp, a tracheostomy scar was present on the neck.
Range of movement of the neck was full although discomfort was reported at the end range in all directions.
Examination of the upper limbs revealed no obvious muscle wasting. There was no clinical evidence of nerve root entrapment with power, sensation, and deep tendon reflexes in both upper limbs equal bilaterally and considered normal. Range of movement in the joints of the upper limbs was also full and free.
On examination of the thoraco-lumbar spine some bilateral lumbar spasm was noted. Forward flexion was reduced with his fingertips, reaching mid-calf level only, and extension reduced to about 20 degrees (normal range 30 degrees). Lateral flexion and rotation however were unrestricted. Discomfort again was reported at the end range of movement in all directions. Krause-Weber (modified) testing produced a score of 40/80. This would indicate that the strength and endurance in the examinee's trunk muscles would not be considered adequate for him to safely undertake manual handling tasks where bracing of the spine using these muscles was necessary.
Examination of the lower limbs revealed no obvious muscle wasting. Movement in knees, ankles and feet appeared normal, however straight leg raising was limited to approximately 60 degrees bilaterally, principally due to hamstring muscle tightness. The examinee was able to stand on both heels and toes but had difficulty balancing, presumably due to the effects of his intracranial pathology. There was again no evidence of nerve root entrapment in the lower limbs with power, tone, sensation and deep tendon reflexes in both lower limbs equal bilaterally and considered normal.
Two horizontal surgical scars were present over the anterior abdomen in the supra-umbilical region association with insertion of his ventriculo-peritoneal shunts.”
24. In his evidence, Dr Schneider said that he checked the range of movement of the applicant’s neck with forward and backward flexion, lateral flexion and rotation and that he noted no loss of range of movement. In relation to the lumbar spine, he said that the applicant was able to forward flex to the mid-calf region which was an indication of the loss of about a quarter of the normal range of movement. He said that extension was in the order of 20 degrees but that it is not usual to use degrees as a measure of loss, it being more appropriate to use a descriptive approach by indicating how far the person can reach. He expressed the opinion that the applicant should be allocated zero percent for his cervical spine under Table 9.6 of the Guide and 5% for his lumbar spine. He noted that, in that Table, less than half the range of movement equated with 10% but he expressed the opinion that the applicant was in a position where he had lost considerably less than that and that the appropriate rating was 5%.
25. Dr Schneider said that he had seen Dr White’s reports which had been prepared in 1999 and 2003. He noted that Dr White had seen spasm in the applicant’s back but said that he had not noted that in the applicant himself. He also noted the differing results that Dr White reported upon and said that individuals can differ on particular days as to the extent they are able to demonstrate range of movement. Dr Schneider also said that he had seen reports prepared by Dr Bruce McPhee and Dr William Laister and had noted variable results and said this can be due to observer error, to the presence of muscle spasm or simply to the variation in the presentation of symptoms on a given day.
26. Dr Schneider said that a person who was unfit or physically deconditioned might have a loss of muscle strength which could enhance functional impairment and that this would also be the case if a person was significantly overweight.
27. In cross-examination, Dr Schneider referred to physical deconditioning as a process that could be reversed but said it was not a forgone conclusion that this would happen as it depended on a person’s habits and their desire for change and the ability to undertake exercise. He said that the applicant’s neurological problem may impact on his fitness level.
28. When asked whether the applicant had demonstrated discomfort at the extremes of his movement range, Dr Schneider said that he had not forced him and had not provided assistance but may have encouraged him to go on. He said that descriptions of loss of forward flexion in the lumbar spine such as “mid-calf”, “mid-shin”, “two inches below the knee” or “mid-tibia” were all about the same and were the equivalent to a loss of about 25% of normal range of movement. In relation to spinal extension, he said that 20 degrees was the equivalent to about two thirds of capacity and therefore indicated a loss of about one third the normal range of movement. He said that the applicant demonstrated full lateral flexion in the spine.
29. Mr Hume put to Dr Schneider that a description of loss of less than half the range of movement equates with 10% under Table 9.6. Whilst agreeing with that, Dr Schneider said that this was only one parameter of the applicant’s movements and that when the more favourable movements were taken into account he considered that the averaging of those results resulted in a 5% rating. He confirmed his opinion that, under Table 9.6, the appropriate ratings were 0% for the cervical spine and 5% for the lumbar spine.
Evidence of Dr Roger Watson, Consultant in Rehabilitation Medicine.
30. Dr Watson examined the applicant on 1 September 2000 and provided a report dated 26 September 2000 (see T26 of Q2001/270). In that report, Dr Watson said:
“Examination showed that he stood with normal spinal curves. All parameters of cervical movement were variably restricted by 50% of more but almost no movement occurred when the full possible range of flexion was combined with bilateral rotation. All parameters of movement caused neck pain at extreme. Bilateral concurrent arm abduction was possible only to 90 degrees due to cervicodorsal pain. He was tender over most of the cervical spine on mid line and paravertebral stressing. He was able to flex to the level of the knees before unacceptable low back pain increased and he restituted in a staccato manner with increasing pain. Straight leg raising to 40 degrees bilaterally caused similar unacceptable low back pain and slump testing was equivalently restricted and painful."
31. Under Table 9.6, Dr Watson described a 15% whole person impairment in relation to the applicant’s cervical spine and 20% for his thoraco-lumbar spine.
Other Medical Evidence
32. The applicant was also seen by Dr Bruce McPhee, Spinal Surgeon, who prepared a report on 29 May 1998 (see T20 of file Q2001/270) and by Dr William Laister, Orthopaedic Surgeon, who prepared a report on 6 February 2001 (see T29 of file Q2001/270).
33. In his report, Dr McPhee said:
“On examination the claimant is of short stature. His gait tends to be a little unbalanced. Despite this he can walk on his heels and his toes. Lumbar spine movements were reasonable with perhaps some minor restriction. On flexion he could reach mid shin. Recovery was not dysfunctional. Straight leg raising was to 65° bilaterally resulting in low back pain. Reflexes were symmetrical and brisk. There was no clonus. Power and sensation in both legs were normal. There was no lower limb wasting. Tenderness was localised to the lumbosacral junction.
The range of cervical spine flexion and rotation was within normal limits. Extension of the neck was moderately reduced to about half the normal range. Lateral flexion was symmetrical reduced to a mild extent. Pain was reported with all movement. Examination of the upper limbs shows brisk reflexes. Power and sensation was normal. Cervical spine tenderness was diffuse and unremarkable.”
34. In his report, Dr Laister, said:
“There’s a normal range of movement in his cervical spine in all directions. There’s no cervical spinous process tenderness. There’s no tenderness present over the rhomboid or trapezius muscles. He has had some discomfort in his right shoulder recently for no obvious reason and there’s slight restriction of movement here at the present time. There’s a normal range of movement in his left shoulder.
He stands with normal lumbar curves. He is overweight. Lumbar unroll and flexion occurs, fingers reaching mid tibial level. There’s free extension and lateral bending. He can hyperextend his spine in the prone position without complaint and in the same posture when the pain in the lower lumbar region, which tends to exclude lower lumbar facetal degenerative change.”
35. Neither Dr McPhee nor Dr Laister expressed an opinion as to the relevant ratings to be applied under any Table in the Guide.
Applicant’s Submissions
36. Mr Hume described the applicant as having been a very fit young man prior to his injuries but one who is now unfit and overweight, in part, because of his neurological problems. In reliance on the reports of Dr Schneider and Dr White, he submitted that any reconditioning of the applicant would not necessarily improve his capacity to have full movement of his spine.
37. Mr Hume conceded that Dr Watson had not been available for cross-examination but noted the higher ranges of movement loss that Dr Watson had recorded. Nevertheless, he submitted that the appropriate allocation for the applicant’s cervical spine was 5% which corresponds with minor restrictions of movement and 15% for the loss of half normal range of movement in the thoraco-lumbar spine. He relied upon Dr White’s report and referred to the fact that Dr White had seen the applicant on two occasions over a four year time frame and had expressed a view that his condition had not greatly changed over that period. He said that Dr White had conceded that the applicant’s forward flexion had slightly improved over that period but explained this by indicating that variations can occur in capacities on particular days.
38. Mr Hume also referred to the report of Dr Schneider and said that this, in the case of the thoraco-lumbar spine, justified a description of less than half loss of normal movement as well. He had described a 25% loss of flexion, 33% extension with the other parameters of movement being normal. He said that this equated with the loss of less than half range of movement and should at least amount to a 10% impairment. Mr Hume referred to the beneficial nature of the legislation relating to compensation and urged the Tribunal to adopt a beneficial interpretation of the Tables.
Respondent’ Submission
39. Mr Clark referred to the applicant’s evidence that he had been subjected to physical pressure being applied to him by Dr Schneider during the medical examination that Dr Schneider conducted on him. He submitted that it was highly unlikely that this occurred. Mr Clark also referred to the evidence of Dr Watson and submitted that the ratings allocated by him were so far away from those of the other practitioners that they should be discounted and that, in any event, his evidence should be disregarded because he had not been the subject of cross-examination.
40. Mr Clark also submitted that it was appropriate to take into account the evidence of both Dr Laister and Dr McPhee who, although they had not expressed an opinion in favour of the respondent being liable for the applicant’s injury, were nevertheless qualified to provide evidence of the presentation of symptoms in the applicant.
41. Mr Clark conceded that medical reports would vary in accordance with whether or not a particular examinee was having a good day or a bad day but that, in allocating ratings under the Tables, one should find a range of consistency in the evidence and allocate ratings for the permanent impairment which reflects that range.
42. In relation to Dr White, Mr Clark referred to the remarkable similarity in the wording of the two reports that he provided and submitted that this tended to detract from the objectivity of his reporting. He also submitted that Dr White set too high a standard for what was normal range of movement in an individual’s spine.
43. In relation to the applicant’s cervical spine, he noted Dr White’s description of the reduction of extension of about one quarter with all other movements only minimally reduced. He submitted that this was in contrast with the reports of the other specialists. In particular, Dr Schneider described the range of movements in the applicant’s neck as being full; Dr Laister described him as having a normal range of movement in his cervical spine in all directions; and Dr McPhee described the range of cervical spine flexion and rotation as being within normal limits though he noted the extension of the neck was moderately reduced to half the normal range. Mr Clark submitted that the description provided by Dr Schneider should be adopted as this reflected the highest degree of consistency.
44. In relation to the thoraco-lumbar spine, Mr Clark again submitted that Dr Schneider’s opinion should be adopted. He referred to the six parameters of movement and to Dr Schneider’s report as confirming that four of these, that is, those involving lateral flexion and rotation were unrestricted. Of the other two, extension was reduced by about one third and forward flexion was reduced by about 25% or less. He submitted that when all of those measurements were taken into account, the description at best applied was that equivalent to a 5% impairment under Table 9.6.
Consideration
45. The medical examinations conducted of the applicant have spanned a period of 5 years. He was seen by Dr McPhee in 1998, by Dr White in May 1999, by Dr Watson in September 2000, by Dr Laister in February 2001, by Dr Schneider in August 2002 and by Dr White in May 2003. I have accepted the submission by Mr Clark in relation to the report of Dr Watson and note that Mr Hume has not placed reliance on it. The reports of the other specialists have provided various descriptions of the limitations of both the cervical and thoraco-lumbar components of the applicant’s spine. Nevertheless, there is some consistency in those descriptions.
46. In relation to the cervical spine, a limitation of extension is noted by Dr McPhee and by Dr White. Dr McPhee, in 1998, referred to reduction to about half range of movement. Dr White, in his first report, referred to a reduction of about one quarter range of movement and, in his later report, to mild reduction. Dr Laister and Dr Schneider describe no reduction in extension. In relation to forward flexion, no limitation was noted in any of the reports by Dr McPhee, Dr White, Dr Laister or Dr Schneider and, in respect of the other parameters of neck movement, a limitation is only noted by Dr White who describes a minimal reduction in his first report and a mild reduction in his second report.
47. I accept the evidence of both Dr White and Dr Schneider that, on particular days, variations may occur in the capacity of a person to demonstrate a range of movement in a particular joint. I also accept that the movements the applicant was required to undertake for both his cervical spine and his thoraco-lumbar spine were voluntary so that, effectively, it depends upon the applicant’s willingness to move through the angle that the particular exercise requires. Given that the assessment is of voluntary movement, I do not accept the applicant’s evidence that physical pressure was applied by Dr Schneider to enable him to reach the limits of particular movements. However, I do note that Dr Schneider stated that he encouraged the applicant and, in his report, Dr Schneider provides a qualification to his comment that the range of movement of the applicant’s neck was full in that he described discomfort at the end range in all directions.
48. Based on all the evidence, I am satisfied that the applicant does suffer from minor restrictions of movement in his cervical spine and that this equates to 5% whole person impairment under Table 9.6 of the Guide in respect of that part of his spine.
49. In relation to the applicant’s thoraco-lumbar spine, a limitation in forward flexion capacity is noted by Dr McPhee, Dr White, Dr Laister and Dr Schneider. He is variously described as being able to flex to his mid-shin, mid-tibia, mid-calf or two inches below his knees. There is also some limitation of extension noted by Dr White and Dr Schneider. Again, Dr Schneider reports discomfort at the limits of his range of movement. I am satisfied that the applicant experiences restrictions of movement to his thoraco-lumbar spine and that this is more than minor, as that term is used in Table 9.6 of the Guide. I am also satisfied that the restrictions of movement do not extend to half normal range of movement. In that situation, I am satisfied that the appropriate description under Table 9.6 of the Guide is that he has lost less than half the normal range of movement in his thoraco-lumbar spine and that equates to 10% whole person impairment under Table 9.6 of the Guide.
Decision
50. Under Table 9.6 of the Guide, permanent impairment is assessed, for the purposes of section 24 of the Act, at 5% whole person impairment in relation to the applicant’s cervical spine and 10% whole person impairment in relation to his thoraco-lumbar spine.
51. The applicant is entitled to costs in accordance with the Tribunal’s General Practice Direction.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member
Signed: Sarah Oliver
Associate
Date of Hearing 20 May 2003
Date of Decision 13 June 2003
Counsel for the Applicant Mr R Hume
Solicitor for the Applicant D’Arcys
Counsel for the Respondent Mr C Clark
Solicitor for the Respondent Blake Dawson Waldron
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