Coleman and Comcare - [2001] AATA 406

DECISION AND REASONS FOR DECISION [2001] AATA 406

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A1999/218

GENERAL ADMINISTRATIVE DIVISION       )
           Re      SHANNON COLEMAN
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr C P Webster (Senior Member) Air Marshal I B Gration AO AFC RAAF (Member)

Date11 May 2001
PlaceCanberra

Decision      The decision under review is affirmed.
  [Sgd CP Webster]
  Senior Member
CATCHWORDS
Compensation – whether applicant suffering permanent impairment for thoracic lumbar spine.
Safety, Rehabilitation and Compensation Act 1988 – s.24

REASONS FOR DECISION

11 May 2001 Mr C P Webster (Senior Member) Air Marshal I B Gration AO AFC RAAF (Member)

Issues

Shannon Coleman ("the applicant") seeks a review of a decision of Comcare ("the respondent") of 30 July 1998 and subsequently affirmed by an independent review officer of the respondent on 1 July 1999, which denied a claim by the applicant for compensation for permanent impairment for a compensable injury suffered on 2 December 1991 on the grounds that the degree of impairment is less than 10%.
The issues to be determined by the Tribunal are whether the applicant suffers any degree of impairment arising from an injury suffered at work on 2 December 1991, and if so, the degree of such impairment.
The Evidence
The applicant gave evidence in person. His evidence was that whilst employed as a trades assistant with the ACT Health Authority on 2 December 1991 he suffered an injury to his back when he suffered an electric shock. Liability was accepted in respect of the effects of mains electric shock and the fall from the ladder.
From April 1994 to February 1999, the applicant worked with the CSIRO as a laboratory assistant. In January and September 1996, when lifting heavy equipment, he aggravated the injury to his back caused on 2 December 1991.
The respondent accepted liability for the aggravation of the applicant's condition which occurred in 1996.
The applicant's evidence was that prior to the incident in December 1991, he was involved in bodybuilding, weight lifting and competitive power lifting. He was also involved in many other sports and outdoor activities, such as water skiing, horse riding and rugby union.
As a result of the back injury suffered in the accident of December 1991, and the aggravation, he was no longer able to participate in bodybuilding or power lifting or attend the gymnasium as often as he had prior to the accident. He was unable now to participate in rugby or to ride a horse.
The applicant now has employment with the Department of Defence in the recruitment department.
The applicant advised that he still suffers back pain at work and at the end of the day. He described his back as being constantly sore and described further limitation on his activities caused by back pain.
Under cross-examination, the applicant was shown a video of him engaging in general strengthening activities involving weights at a gymnasium in June 1999. The video was tendered into evidence by the respondent.
The applicant was cross-examined at length as to his physical activities since December 1991 and as to other matters which reflected adversely on his credit as a witness of the truth.
The respondent cross-examined the applicant as to other incidents which had caused the applicant to suffer back pain, and back pain suffered by the applicant which was not associated with any specific activity or incident.
Two medical experts gave evidence on behalf of the applicant. Firstly, Dr. Robert John Scott, an occupational physician gave evidence. He adopted his written medical report. In his report of 12 October 1998, Dr. Scott assessed the applicant's whole person impairment at 15%. In a later report, made after viewing a video of the applicant, Dr. Scott revised his assessment to between 5% and 10%.
In oral evidence, Dr. Scott stated that he thought that the applicant had an impairment that he would class as being more than normal. In explanation of this opinion, Dr. Scott put forward his view that, in assessing the degree of impairment, he took into account the 'normal' activities undertaken by a patient. In the applicant's case, he took as 'normal' the power lifting, rugby playing and other strenuous physical activities which the applicant had to forego after his accident. This interpretation of the Guide is discussed further below at para 31.
Secondly, Dr. Geoffrey Speldewinde, a specialist in rehabilitation and pain management, gave evidence. He had examined the applicant on about 9 occasions. He considered that the applicant had more than a minor restriction of movement of his lumbar sacral spine.
The respondent adduced evidence from three medical experts.
Mr. Francis Keiller, a general surgeon, gave evidence and adopted his medical reports. In his latest medical report, dated 7 August 1999, written after he had seen the video film of the applicant, he stated:
"The film was made six weeks after my examination. The findings are incompatible with the history he gave and the examination signs I found. I must, therefore, amend my opinion. He may have a level of residual simple backache, but it does not limit his activities. There is no impairment of function. He is not disabled, even for heavy work. There is no interference with his domestic or social capacity. On the basis of the evidence shown in this film, the accuracy of the history he gave me must be questioned."
Mr. Peter Battlay, a specialist surgeon, gave evidence and adopted his reports of 27 July 2000 and 12 August 2000. He considered that the applicant had a 5% impairment of the whole person and was fit for normal physical duties.
Dr. Christine Davidson, adopted her medical report, in which she stated that the applicant's whole person impairment was not more than 5%.
Discussion of Evidence
The principal issue to be determined by the Tribunal is whether the applicant has a greater than minor loss of range of movement in the lumbar/sacral spine.
The relevant table under the "Guide to the Assessment of the Degree of Permanent Impairment" provides that a minor restriction in movement of the spine will attract a 5% assessment of whole person impairment. A loss of less than half normal range of movement will result in a 10% assessment.
If the applicant does not have a greater than minor restriction of movement in the lumbar/sacral spine, he does not have a 10% whole person impairment and is not eligible to receive a lump sum payment under the Act.
A determination of this issue essentially depends on whether or not the Tribunal accepts the evidence of the applicant as to the restrictions he suffers as a result of any lumbar/sacral spine injury.
The doctors who consider that the applicant has greater than a minor restriction of movement of the spine have accepted the applicant's version of his restrictions. The other doctors have not accepted the applicant's version of his restrictions.
The applicant gave what appeared to be frank and truthful evidence in his examination-in-chief. Unfortunately it was revealed in cross-examination that his evidence was incomplete and that he had a long history of untruthfulness. It was revealed that:

(a)He had failed to answer truthfully questions regarding his health and previous back injury when applying for jobs.
(b)He had made false statements concerning his past health history when completing a questionnaire for superannuation papers.
(c)He had lied to his medical practitioners to obtain anabolic steroids for a friend.
(d)He had attended a gymnasium whilst on sick leave. He saw nothing wrong with taking unjustified sick leave. His attitude was that "… we've all had a sickie I think", meaning that everyone had falsely claimed a day off on sick leave.
(e)He admitted in cross-examination that he had engaged in numerous strenuous sporting and social activities, which he had not revealed at that stage.

The Tribunal does not accept the applicant as a witness of the truth and, unless supported by corroborative evidence, does not accept his evidence as to limitation of movement of his spine.
The Tribunal has viewed the video which shows the applicant exercising with weights. The Tribunal does not consider that anything other than a minor restriction of movement of the lumbar/sacral spine is shown in the video.
The applicant under cross-examination admitted engaging in many activities since the accident of 2 December 1991, including lifting weights at a gymnasium, absailing, canoeing, white-water rafting, scuba diving, tennis, martial arts and cycling. Some of these activities, such as scuba diving, were only taken up after the accident on 2 December 1991.
The ability of the applicant to undertake these activities appear to be inconsistent with the applicant suffering a greater than minor restriction of movement.
The Tribunal prefers the evidence of the respondent's medical experts who consider that the applicant only has a minor restriction of movement. Their opinions more accurately reflect the range of movement observed by the Tribunal on video and the activities which the applicant admitted at the Tribunal that he has actually undertaken since his injury.
In respect to Dr. Scott's explanation of his basis for assessment of degree of impairment, the Tribunal notes that his explanation is inconsistent with the 'Guide'. The 'Guide' makes quite clear that degree of whole person impairment relates to the loss or partial loss of function in 'activities of daily living', which are defined to include breathing, eating, moving, communicating, etc – ie, the ordinary activities of basic living, applicable to everyone in general. Equally clearly, such activities do not encompass additional activities of personal choice, especially those which require a degree of functionality significantly in excess of the defined ' activities of daily living'. Accordingly, the Tribunal rejects the opinion of Dr. Scott in this respect.
It is unnecessary in view of the Tribunal's findings above for the Tribunal to consider whether any loss of movement of the lumbar/sacral spine was caused, wholly or substantially, by an injury which arose in the course of the applicant's employment. Suffice it for the Tribunal to note that, in view of the medical history presented before it, the Tribunal has considerable doubts that the condition from which the applicant now suffers was in fact caused by his employment.
Decision
The decision under review is affirmed.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Mr C P Webster (Senior Member)
Air Marshall I B Gration AO AFC RAAF (Member)
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  5, 6 March, 9 April 2001
Date of Decision  11 May 2001
Counsel for the Applicant        Mr Gill
Solicitor for the Applicant         J Pappas
Counsel for the Respondent    Ms Adamson
Solicitor for the Respondent    Dibbs Barker Gosling