Evans and Australian Postal Corporation
[2003] AATA 1345
•24 December 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1345
ADMINISTRATIVE APPEALS TRIBUNAL
N2001/1786 N2001/1824
N2002/1268
GENERAL ADMINISTRATIVE DIVISION Re MONICA EVANS Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal P. J. Lindsay Date24 December 2003
PlaceSydney
Decision The tribunal:
· In N2001/1786: sets aside the reviewable decision made on 20 November 2001 ceasing liability for compensation for an injury to the applicant’s lower back sustained on 16 November 2000.
· In N2001/1824: varies the decision made on 26 November 2001 by finding that liability under the Safety, Rehabilitation and Compensation Act 1988 (the Act) for the injury to the applicant’s lower back sustained on 16 November 2000 continues, but affirms the decision to deny liability to pay compensation under ss. 24, 25 and 27 of the Act.
· In N2002/1268: affirms the decision made on 7 August 2002 to deny liability for compensation for permanent impairment of the applicant’s back due to an injury sustained on 8 October 1986.
The respondent is liable to pay the applicant's costs of the proceedings in accordance with the General Practice Direction of the tribunal.
P.J. Lindsay
Senior Member
CATCTHWORDS
COMPENSATION –– respondent ceased liability for acute episode of lower back pain – aggravation of degenerative disc disorder – liability continues - applicant not entitled to compensation for permanent impairment
Compensation (Commonwealth Government Employees) Act 1971 (repealed)
Safety, Rehabilitation and Compensation Act 1988 ss 14, 16, 20, 21, 24, 25 and 27Asioty v Canberra Abattoir Pty Limited (1989)167 CLR 533
Australian Postal Corporation v Bessey (2001) 32 AAR 508REASONS FOR DECISION
24 December 2003 P. J. Lindsay 1. Monica Evans has made three applications to the tribunal for review of the following decisions by the Australian Postal Corporation (the respondent):
· Proceeding N2001/1786: a decision made on 20 November 2001 to cease liability for compensation for an injury to her lower back sustained on 16 November 2000.
· Proceeding N2001/1824: a decision made on 26 November 2001 to vary the decision of 20 November 2001 by specifying the extent of the cessation and denying further liability encompassing all relevant provisions of the Safety, Rehabilitation and Compensation Act 1988 (the Act) including ss 14, 16, 20, 21, 24, 25 and 27.
· Proceeding N2002/1268: a decision made on 7 August 2002 to deny liability for compensation for permanent impairment of the applicant’s back due to an injury sustained on 8 October 1986.
2. At the hearing Mr G Giagios of counsel appeared for Ms Evans and Ms R Henderson of counsel appeared for Australia Post. Two sets of documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975, one relating to proceedings N2001/1786 and N2001/1824 (Ta) and the other relating to proceeding N2002/1268 (Tb), were before the tribunal.
background
3. Ms Evans, who was born on 14 May 1961, started her employment with Australia Post in the 1980s. She lodged an incident report with the respondent on 8 October 1986 stating that she had injured her back whilst lifting a heavy parcel at the North Ryde Post Office (Tb3). A claim for compensation was lodged on 9 October 1986 for strained muscle and ligaments in the lumbo-sacral region of her back (Tb4). On 12 December 1986 the respondent accepted liability for the applicant’s lumbo-sacral strain (Tb7). It was determined that Ms Evans was entitled to full sick pay for the period 9 October 1986 to 24 October 1986.
4. Ms Evans lodged an incident report about a very painful seizure in her lower back that happened on 16 November 2000 while she was crouching to clean the bottom of the front counter at the Newcastle West Post Office (Ta5). She lodged a claim for compensation and rehabilitation on 24 November 2000. On 1 December 2000 the respondent accepted liability for ‘acute episode of lower back pain’ sustained on 16 November 2000 (Ta12).
5. Ms Evans lodged a further incident report about an injury sustained on 7 March 2001. She reported suffering pain through her lower back and down her leg. She stated “work tends to aggravate the prior back injury, particularly today – in the normal course of duties and work hours”. (Ta28) There were further reports regarding pain in the lower right side of her back, gradually becoming worse while working on 19, 20 and 21 March 2001. In these reports she stated that the pain in her lower back gradually intensified to severe pain while she was working on restricted duties.
6. Australia Post sought an opinion of Dr A Smith, orthopaedic surgeon, who reviewed Ms Evans on 26 March 2001. On the basis of Dr Smith’s report dated 4 April 2001 (Ta36), Australia Post made a determination on 25 May 2001 that it would cease liability for the injury sustained on 16 November 2000 (Ta40).
7. The applicant’s representatives sought reconsideration of this decision and in support served a report from Professor Y A E Ghabrial, orthopaedic and spinal surgeon, dated 25 October 2001 (Ta55). By a reviewable decision dated 20 November 2001 (Ta58), Australia Post affirmed the determination to cease liability.
8. On 23 November 2001 Ms Evans’ solicitors lodged a claim for permanent impairment in respect of the back and right leg due to the injury on 16 November 2000 and incident on 19 March 2001 as well as the injury sustained in October 1986. On 26 November 2001 Australia Post varied its decision of 20 November 2001 by denying liability under all provisions of the Act, including for permanent impairment under ss. 24 and 27 of the Act (Ta61).
9. On 19 July 2002 Ms Evans lodged a claim for permanent impairment resulting from the lumbo-sacral strain sustained on 8 October 1986 (Tb9). By reviewable decision dated 7 August 2002, the respondent disallowed the claim (T13). Australia Post stated that there was no evidence to support a finding that she suffered from an impairment of a permanent or long-lasting nature related to the incident on 8 October 1986. Moreover the respondent noted that there was no provision for payment of lump sum compensation in respect of a back injury under the Compensation (Commonwealth Government Employees) Act 1971 (repealed) that was in effect at the time of that incident.
evidence
10. Ms Evans said that she had not suffered any injury to her back prior to the incident on 8 October 1986. She sustained the injury in serving a customer who had brought in a heavy parcel weighing 18.5 kgs (Tb3). She reached across the counter to pick up the parcel, turn and place it on the scales at her side. As she lifted the parcel to put it onto the scales she felt something go in her back, like a ping, a quick, sharp, stabbing pain. She kept working but during the course of the day her back started to seize up. She consulted her GP and had some time off work. On returning to work, Ms Evans carried out her pre-injury duties. By Christmas 1986 her symptoms had completely resolved.
11. Ms Evans continued to work for Australia Post before taking maternity leave. She resigned around 1987 or 1988. When she re-joined Australia Post she had a part-time position, working 22.5 hours a week.
12. On 16 November 2000 Ms Evans recalled helping a colleague unload stock which included boxes of photocopy paper weighing approximately 13.5kgs. On completing this, she began to dust shelves. While on her haunches leaning forward to dust a metal strip about 15-20cm from the ground, she felt a ping in her back, a couple of inches below the waistline and to the right. There was also a slight tightening sensation. She said the feeling was very similar to what she had experienced in 1986 and in the same place. She felt a little bit stiff and sore, and was apprehensive because of her previous experience. Later that day Ms Evans, who had been serving customers, needed to get some change from the safe. She had to bend over to punch in the combination, grip the handle, pull it to the right and heave open the safe door. As she did this she felt incredible pain and her back seized up. Ms Evans described shooting pain that pushed down her right leg. She said she had also experienced similar pain in her leg in October 1986. She slowly straightened up and felt tightness and pain in the lower part of her back and down her thigh. She took a couple of panadols and continued to work at the counter, standing, for approximately 30 minutes. During this time her symptoms became worse.
13. Ms Evans finished her shift at around 1pm. She drove home awkwardly, using her hands to assist her with the clutch and the brake. At the time, she was driving a manual car with heavy steering. She consulted Dr K Manhood, her general practitioner, that afternoon. Dr Manhood issued her with a certificate certifying her unfit for work. She was prescribed valium, panadeine forte, and possibly celebrex.
14. Ms Evans stated that this level of pain continued for about 24 hours and then she gradually felt less stiffness and pain. Ms Evans was certified unfit for work until 29 November 2000. During this time Dr Manhood arranged for physiotherapy which Ms Evans stated gave her some relaxation, more mobility and decreased her pain.
15. Australia Post arranged for Dr M Harden, occupational physician, to examine her on 20 November 2000. In his report dated 28 November 2000 (Ta9) he noted a history of the applicant feeling well prior to commencing work on 16 November 2000. She said that while she was squatting and leaning forward to clean some shelving she injured her back and felt a ping. She continued work but her back progressively worsened over the course of her shift. She described the pain as worse than childbirth. Dr Harden also took a history of the 1986 injury. On that occasion Ms Evans had been lifting a parcel on the counter when she felt a “rubber band ping sensation” which progressively worsened and then began to seize up.
16. Dr Harden found that Ms Evans had suffered an acute episode of low back pain. His diagnosis was right lumbar paravertebral muscle strain. There were no features to suggest nerve compression. Dr Harden did not expect any permanent impairment, although reassessment would be necessary after the symptoms had stabilised. He thought Ms Evans would be fit to return to work on reduced hours from 27 November 2000, with a view to a return to full duties within six weeks, and that this would be assisted by the provision of adequate analgesia, physiotherapy and encouragement to mobilise. As for preventing a similar injury in the future, Dr Harden observed “The particular injury is often not avoidable as muscle strains can occur with trivial insults such as appears to be the case with this injury. … Physiotherapy would certainly assist Ms Evans at this stage by assistance with mobilisation and by providing her with a back strengthening and exercising regime that she could adapt to her home environment.”
17. Ms Evans participated in a graded return to work program and by 8 January 2001 had progressed to her full pre-injury duties. She had two weeks annual leave commencing on 15 January 2001. By this time, there had been an increase in her duties and she was coping well although she was experiencing stiffness and some pain in her back and down her leg. She said that while the pain was not as intense or unbearable, she had developed a degree of tolerance to the continuing intense dull ache. She said that she had more mobility, but not complete mobility and that she could not twist, turn, bend down or stretch fully.
18. Following the initial course of physiotherapy, a six week pilates course was recommended. This was approved by the respondent. Ms Evans stated that although she completed the course, it aggravated her condition.
19. Ms Evans had an x-ray of her lumbar spine on 19 February 2001. The report stated (Ta25):
L4/5 and L5/S1 disc spaces are narrowed and there is calcification behind L4/5 disc space, ? in bulging disc. Mild anterior degenerative changes are noted at various levels and there is bony bridging anteriorly in lower thoracic spine. …
COMMENT
Degenerative disc disease in lower lumbar spine particularly L4/5. No definite fracture identified.
20. Ms Evans completed an incident report form on 7 March 2001 (Ta28) stating that she was experiencing pain in her lower back and leg. The form noted that the pain arose while she was completing her normal duties and was not attributable to any specific event. She also completed similar incident report forms on 19, 20 and 21 March 2001 noting that her pain gradually worsened during the course of her shifts.
21. Dr Manhood wrote to Australia Post on 10 March 2001 (Ta30). Dr Manhood pointed out that despite the prescription of anti-inflammatory medication, analgesics, muscle relaxants and physiotherapy, Ms Evans had failed to make a full recovery and was still experiencing significant low back pain. Dr Manhood recommended a CT scan of the lumbar spine to clarify whether there was nerve root irritation, possibly due to a disc prolapse, and to determine further treatment plans and ongoing work fitness.
22. Australia Post arranged for Dr A Smith, orthopaedic surgeon, to examine the applicant on 29 March 2001. Ms Evans’ history referred to experiencing a “ping” in her back whilst bending forward to dust shelves on 16 November 2000. It was noted that she had been doing a lot of bending and lifting that day. Ms Evans complained of severe pain in the low back and also in the right buttock, and pain running down the right leg to the bottom of the thigh. It was also noted that Ms Evans had experienced a previous injury to the low back some fifteen years ago. Currently her symptoms were a dull ache, but she experienced back and leg pain from time to time, severe on occasions. On examination Dr Smith observed that the applicant demonstrated painful extension but about 80 per cent of expected range. Lateral flexion and rotation were unremarkable. She could bend forward to reach the lower third of the tibia and resume the erect position with a normal rhythm of movement.
23. Dr Smith diagnosed lumbar degenerative disease. Ms Evans’ clinical examination was consistent with symptomatic lumbar degenerative disease and this was demonstrated in the x-ray of 19 February 2001. In Dr Smith’s opinion it was unlikely that there had been a frank disc injury on either of the two work accidents or occasions. Dr Smith considered that Ms Evans had suffered an aggravation to her lumbar degenerative disease during the course of her work on 16 November 2000 and he felt that the same explanation could be given for the injury of fifteen years ago. She was likely to improve and her symptoms would ultimately settle. On the balance of probabilities he felt that the effects of the aggravation of 16 November 2000 have ceased but the underlying condition was likely to be aggravated both at home and at work. Dr Smith thought Ms Evans was fit for work avoiding excessively heavy and repetitive bending and lifting activities.
24. Australia Post made a determination on 24 April 2001 (Ta37) to cease liability based on Dr Smith’s opinion that the effects of the aggravation to pre-existing lumbar degenerative disease had ended.
25. Ms Evans was referred by Dr Manhood to Professor Ghabrial for examination and opinion on 22 August 2001. In addition to the x-rays, a CT scan and MRI were available to Professor Ghabrial. He reported on 25 October 2001 (Ta55) that the history referred to an injury on 16 November 2000. Although he did not believe that Ms Evans’ disabilities warranted surgery, Professor Ghabrial thought she should permanently avoid heavy lifting, excessive twisting and bending. Professor Ghabrial’s clinical assessment and consideration of the investigations confirmed minor degenerative changes with bulging of the L2/3 and L4/5 intervertebral discs. Further, he thought the calcification at the L4/5 disc was related to the incident that happened in 1986 and that the incident on 16 November 2000 was a major aggravation to continuing symptoms in the lower back and right leg. In his opinion the applicant’s condition had stabilised. He assessed permanent impairment of the back at 25 per cent and permanent impairment of the right lower limb at 10 per cent. In his opinion her present clinical features, disabilities and impairments are the result of the injury to her lower back in November 2000.
26. In her evidence Ms Evans said that she still participates in hydrotherapy and feels that this gives her some relief and assists with her movement. The respondent paid for her hydrotherapy until 25 May 2001, since then she has been paying for the treatment herself. She does not have a regular schedule for her medication. She takes painkillers as required. She takes about two Panadeine Forte a week, but tries to avoid them because they make her drowsy, and Panamax or paracetamol on a more regular basis. She also takes an anti-inflammatory, Vioxx, every morning. She has not taken valium since around December 2000. Ms Evans said that Professor Ghabrial did not vary the treatment or medication that Dr Manhood had prescribed. On the day of the hearing Ms Evans had taken Panamax and was experiencing a dull, throbbing ache in her lower back and down through her posterior, but not in her leg.
27. For about the last two years Ms Evans has been working 25 hours a week for Australia Post. Her duties are similar to those she performed prior to her injury. Her colleagues assist her whenever possible in lifting heavy items and she avoids excessive bending and lifting. She has not lodged an incident report about her back since 21 March 2001. She will take Panadeine Forte to assist her complete her shift with limited pain but on average she admitted she does not take more than two Panadeine Forte a week. In cross-examination she said that on some days at work she can do just about anything.
28. Ms Evans told the Tribunal that at no stage has she been completely pain free since the incident on 16 November 2000. She has developed a tolerance to the pain but on some days it is really bad. Although she did not agree the pain was intermittent, she said that the level of pain was not consistent. On good days Ms Evans is almost like her old self again. But on bad days the pain affects her mobility and she is very restricted.
29. Ms Evans said that at no stage has she recovered full mobility. She moves more slowly than she used to and is uncomfortable. She cannot bend right down. She can climb in and out of her car, although sometimes quite slowly. Analgesics and anti-inflammatory medication assist her movement, as do hydrotherapy and use of her spa bath. On some days Ms Evans asks her daughter to help with the domestic duties. She cannot clean the spa bath or mow the lawn. But she can look after herself. She does most of the cooking, although sometimes her mother helps. She can handle pots and pans. Sometimes her daughter helps her to lift things and pick things up from the floor when the pain is bad. She has some difficulty going to the toilet on a bad day. She uses the stairs at work to go to the bathrooms. She remains involved in her daughter’s sporting activities in the role of scorekeeper.
30. In oral evidence Professor Ghabrial said that the CT scan of the applicant’s lumbar spine on 3 May 2001 indicated that there were longstanding degenerative changes at L4/5 and L5/S1 and narrowing of the disc spaces. There was calcification of the L4/5 disc that he thought had probably been caused by the injury in 1986. Professor Ghabrial referred to the report by Dr G Williamsz of an MRI scan of the lumbar spine undertaken on 25 August 2001 (exhibit A1). That report stated:
The discs show loss of signal. There is mild spurring and bulging. Focal central protrusion of L4/5 is seen with mild indentation of the anterior sac, though there is no significant central stenosis. The L2/3 shows similar features. … Degenerative disc changes. Mild disc bulging more focal at L4/5 and L2/3.
Professor Ghabrial explained that an MRI scan analyses the water content of the discs and focuses more on the soft tissue than the bony structure of the spine. A loss of signal means a loss of hydration in the disc and means that either dilation or degeneration is present. Professor Ghabrial said the MRI indicates that the protrusions at L4/5 and L2/3 were probably of recent origin, particularly the protrusion at L2/3 because there was no narrowing of the disc space at that level.. The CT scan in May 2001 demonstrated degeneration and calcification of the L4/5 disc, as well as narrowing of the disc space. He explained that the L4/5 protrusion was not due to the work incident in October 1986. Given that Ms Evans has been asymptomatic since that time, Professor Ghabrial considered it unlikely that the disc protrusion at L4/5 occurred in 1986. Calcification of the L4/5 disc, however, was probably caused by the incident in October 1986 and resulted from bleeding in the annulus. The calcification would tend to make the disc a little rigid and for symptoms to settle. A focal disc protrusion can cause symptoms in the back and legs since it indents the thecal sac and irritates the dura with activity. Professor Ghabrial opined that once the disc had been injured, a force exerted on it of only 1/5 the force required to rupture a healthy disc, could lead to a focal disc protrusion. Ms Evans’ bending down or pulling open the safe door would suffice.
31. In cross-examination Professor Ghabrial said it was highly unlikely that a focal disc protrusion would occur without trauma. Similarly, it was highly unlikely a 25 year old would develop degenerative disc disorder. He would expect a patient with a focal disc protrusion at L4/5 to experience pain when twisting or bending repetitively or lifting anything heavier than 10 kgs, although he accepted that they could have good days when they feel less pain. That the MRI scan showed the focal disc protrusion some 8-9 months after the incident in November 2000 and that the disc had very little water content, suggested to Professor Ghabrial that it would be highly unlikely that the protrusion at L4/5 would now decrease in size or improve. However, he felt that the protrusion at L2/3 would resolve over time. The distinction between the two discs was that the loss of disc height at L4/5 shown in the x-ray suggested degenerative change L4/5 but there was no narrowing at L2/3 and thus no degeneration. As a result, it was more likely that the L2/3 disc would rehydrate and the lump would shrink. He thought Ms Evans should continue to use the anti-inflammatory medication and analgesics. In addition Ms Evans should maintain strong back muscles and he recommended hydrotherapy.
32. In assessing the degree of permanent impairment Professor Ghabrial found Ms Evans has lost more than half the normal range of movement in the thoraco-lumbar spine. He based this assessment on the fact that she has three degenerate discs plus protrusions amounting to a loss of function in four out of five discs in the lumbar spine, and on his examination findings in regards to forward flexion. Although she would have gradually lost movement due to the degeneration of her discs the protrusions, in his opinion the injury in November 2000 had worsened this effect.
33. At the request of Australia Post, Professor Oakeshott examined Ms Evans on 13 March 2002 and prepared a report of that date (exhibit R1). At the time of the examination Professor Oakeshott noted that it had been three months since Ms Evans had consulted Dr Manhood regarding her back condition. She described her symptoms as intermittent lower back discomfort, though she allowed that she can have “really good days”.. On other days, for reasons she could not explain, she will suffer significant low back discomfort that can radiate down into her right leg. Professor Oakeshott considered that the x-ray of 19 February 2001 and the MRI scan of 25 August 2001 showed degenerative disc changes in the lower lumbar spine particularly at the L4/5 level. There was no evidence of significant central canal stenosis, foraminal stenosis or other abnormality. It was his opinion that these changes were constitutional in origin and not work related. Ms Evans demonstrated reduced movements of her back and tenderness to moderate pressure over the right side of the lower part of her lumbar spine and over the back of her right buttock. No abnormalities were observed.
34. A later report dated 21 January 2003 (exhibit R2) referred to table 9.6 ‘Spine – Thoraco-lumbar spine’ of Comcare’s Guide to the assessment of the degree of permanent impairment (the Guide). Professor Oakeshott stated that Ms Evans had minor restrictions of movement and accordingly assessed her degree of permanent impairment at 5 per cent.
35. In his oral evidence Professor Oakeshott said that Ms Evans suffers from degenerative lumbar spinal disc disorder of a constitutional origin. It is a very common condition that has been well published in the literature and he has observed the condition many times. Professor Oakeshott stated that about 50 per cent of people in the applicant’s age group develop this condition and that her level of risk was not correlative with her occupation. In his opinion the history reported by Ms Evans could be explained by the degenerative changes and he thought the incident at work in November 2000 was not a significant contributing factor to what was already a significant and long-standing problem in the back. He felt that the symptoms experienced by Ms Evans would have been present on or around 16 November 2000 regardless of whether she was at work, but could not estimate when exactly they would have become apparent.
36. Professor Oakeshott was asked to comment on the investigations. In relation to the MRI scan he said the changes were not consistent with a focal injury in the back because such an injury would have been easily identifiable. The calcification at L4/5 referred to in the report on the x-ray of February 2001 indicated that the applicant’s degenerative condition was long-standing. But Professor Oakeshott did not agree that the calcification was consistent with a significant disc injury in 1986. The applicant’s symptoms at the time suggested she had merely suffered a musculo-ligamentous injury because her condition resolved with minimal treatment. If Ms Evans had suffered a disc injury he would have expected she would have had x-rays, physiotherapy and an opinion from an orthopaedic surgeon. There would have been a recovery period of a couple of years depending upon the severity of the injury and the degree of treatment. In particular Professor Oakeshott would expect to see significant back pain, probably radiating into the buttock and leg area. He stated, however, that he would not expect such symptoms where calcification is of a constitutional origin, and it was not unlikely that a person in this category would be asymptomatic.
37. In cross-examination Professor Oakeshott agreed that Ms Evans has a degree of permanent impairment of the thoraco-lumbar spine, but stated that it was a very minor restriction. He also agreed that Ms Evans is permanently and partially incapacitated for some types of work. He did not, however, accept that she had suffered a permanent impairment of her thoraco-lumbar spine due to the events on 16 November 2000. At most, he considered this to be a short-term aggravation of her condition that probably settled in a matter of weeks. He noted that Ms Evans had described back symptoms that were intermittent and expressed that she had really good days. This was not consistent with a disc injury even though she may not have experienced complete resolution of her symptoms.
applicable legislation
38. The following provisions from the Safety, Rehabilitation and Compensation Act 1988 (the Act) are relevant:
Section 14 Compensation for injuries
(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. …
The Act contains relevant definitions:
Section 4
Interpretation
(1) In this Act, unless the contrary intention appears:
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.
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 or part of such system or function.
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.
Section 16 provides that the respondent is liable to pay for the cost of reasonable medical treatment for the injury.
39. The following provisions are relevant where there is a claim for permanent impairment:
Section 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.
…
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
…
(7) 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. …
Section 27
Compensation for non-economic loss(1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
…
Section 28 Approved Guide
(1) Comcare may, from time to time, prepare a written document, to be called the "Guide to the Assessment of the Degree of Permanent Impairment", setting out:
(a) criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury shall be determined;
(b) criteria by reference to which the degree of non-economic loss suffered by an employee as a result of an injury or impairment shall be determined; and
(c) methods by which the degree of permanent impairment and the degree of non-economic loss, as determined under those criteria, shall be expressed as a percentage.
findings and consideration
40. Mr Giagios submitted that Ms Evans suffered an injury on 16 November 2000 that aggravated her underlying condition being degenerative disc disease at the L4/5 level and he noted that Professor Oakeshott conceded that such an aggravation occurred. He contended that the sole issue is whether the aggravation was of a permanent or temporary nature. The impact of the 1986 injury is important because of Professor Ghabrial’s view that it was productive of some disc injury. As for the applicant’s reports of continuing pain and restriction of movement in the lumbar spine, Mr Giagios noted Professor Ghabrial’s explanation that he would not expect complete resolution of the applicant’s condition due to dehydration of the L4/5 disc. Mr Giagios submitted that the effects of the injury on 16 November 2000 are not likely to resolve and the injury has caused a permanent aggravation. He submitted that Ms Evans is fit for permanently modified work, and her work restrictions conform to those Professor Oakeshott would recommend, albeit for different causative reasons. In Mr Giagios’ submission Ms Evans is entitled to compensation for her continuing hydrotherapy and medicinal treatment for the injury suffered at work.
41. With respect to permanent impairment, Mr Giagios conceded that the tribunal does not have jurisdiction to take into account the 1986 injury when considering liability for the thoraco-lumbar spine. He contended, however, that the injury was compensable in its proper context. Table 9.6 of the Guide is very specific about the criteria for determining permanent impairment. Professor Oakeshott could not separate the range of movement in the thoraco-lumbar spine from the range of movement the applicant experienced in her hips, despite conceding there was no hip problem. Professor Ghabrial, however, concluded that 50 percent of the applicant’s forward flexion could be attributed to movement from the hips and that, therefore, the applicant had a loss of more than half the range of movement because she could only reach down to her knees.
42. For the respondent it was submitted that Ms Evans had not suffered a significant disc injury in 1986 but a musculo-ligamentous injury. Ms Henderson relied on the opinion of Professor Oakeshott who based his conclusion on the history that the applicant was able to return to full duties after two weeks of bed rest and that her injury had completely resolved in a couple of months. Ms Henderson also submitted that the applicant had not suffered permanent aggravation of her lumbar spine in the incident of 16 November 2000. She referred to Professor Oakeshott’s opinion that Ms Evans had suffered a temporary aggravation of her constitutional degenerative condition, which had resolved. Again she focused on Professor Oakeshott’s findings that the applicant’s history was inconsistent with a traumatic injury, particularly the fact that on good days the applicant is almost her normal self. It was noted that Ms Evans had experienced subsequent aggravations in March 2001 and Ms Henderson submitted that these aggravations were also consistent with constitutional degeneration of the lumbar spine. Ms Henderson stated that there was no change in the underlying condition to indicate a permanent aggravation as is required by Asioty v Canberra Abattoir Pty Limited (1989) 167 CLR 533.
43. In relation to table 9.6 of the Guide, Ms Henderson submitted that the interpretation offered by Professor Ghabrial was unique and should be viewed with caution. In her submission, Professor Ghabrial had considered that it is necessary to test only forward flexion in determining the degree to which a patient possesses normal range of movement of the spine and that 50 per cent of this figure should be deducted due to movement of the hips. Professor Ghabrial did not adequately explain why he disregarded all the other forms of movement performed by the spine in stating that his examination differs depending on whether he is in a clinical context or in a medico-legal context. As for the Guide’s table 9.5 ‘Limb function – lower limb’, Ms Henderson noted that Professor Ghabrial took a history that Ms Evans was having difficulty with bending, lifting and twisting. This history did not include any reference to difficulty with grades or steps.
44. On the basis of the specialist evidence of Dr Smith, Professor Ghabrial and Professor Oakeshott, I find that Ms Evans suffers from degenerative disc changes at the L4/5 and L5/S1 discs. The degenerative disc condition is a disorder and thus an ‘ailment’ as defined in s.4 of the Act.
45. Ms Evans’ history and continuing symptomatology point up a distinction between the injury she sustained to her back in October 1986 and the more recent injury on 16 November 2000. Whereas after a period of weeks, including a fortnight’s bed rest, Ms Evans had made a complete recovery from the earlier injury, the recent injury caused her intense pain in the lower back and leg that gradually decreased in severity, for at least four months after the later incident. There are a number of references to the pain she suffered in those months. Dr Manhood’s letter of 10 March 2001 to Australia Post (Ta30) recorded continuing low back pain and Ms Evans’ failure to recover fully from the incident in November 2000. While performing shifts of restricted duties, Ms Evans found the pain became more intense. During March 2001 she was moved to complete a number of incident reports regarding this pain. Moreover I note that in April 2001 Dr Smith recorded the symptoms to be continuing, although diminished in intensity. Since then, and currently, she finds that her back and leg pain is not consistent but remains present in the background, as she put it. On good days she will try to do things, such as bending, that she is unable to do on bad days. She continues to take anti-inflammatories and requires pain relief on bad days.
46. I accept her evidence. I find that since the incident on 16 November 2000 Ms Evans has continued to suffer pain in the low back and right leg, although it is now variable in intensity and at times she can be at or near her pre-accident condition. She is able to cope with the pain, which she describes as a dull ache, by taking Panadeine Forte or Panamax as required. She finds that hydrotherapy helps considerably, as does her spa.
47. As the CT and MRI scans were not undertaken until after Dr Smith’s examination, his opinion necessarily must receive less weight than either the opinion of Professor Ghabrial or Professor Oakeshott. Nevertheless, I am mindful that in Dr Smith’s opinion, the posterior calcification at L4/5, as shown on the x-ray taken in February 2001, could conceivably be explained by a disc injury in October 1986. But he observed that the injury settled down completely in a matter of weeks with bed rest. Professor Ghabrial is less tentative than Dr Smith and concluded that calcification of the disc at the L4/5 level is probably explained by a disc injury sustained in October 1986. For Professor Oakeshott, however, the calcification was likely to be part of the degenerative process.
48. Both Professor Ghabrial and Professor Oakeshott agree that there has been a central focal protrusion at L4/5 but Professor Oakeshott is of the view that it is not due to a focal disc injury. He explained that in the event of such an injury, there would be an extrusion of disc material in the spinal canal usually blocking some of the nerve root exits in the canal. In his opinion the x-ray and MRI were not consistent with a traumatic disc. Professor Ghabrial conceded in cross-examination that the report of the MRI did not make any findings connected with trauma. He stated, however, that it was not a radiologist’s role to make such findings regarding the cause of a person’s pathology, rather that is up to the clinician, who has conducted a full examination and is aware of the history. I must also take into account Ms Evans’ evidence. Her evidence, which I accept, is that the incident on 16 November 2000 caused her severe pain, which she told Dr Harden shortly after the incident was worse than childbirth. I consider that Professor Oakeshott has overstated the intermittent nature of the symptoms, but without appreciating her evidence that even on good days she cannot do everything that she could in the past, though she will try.
49. It is Professor Ghabrial’s view, having regard to this symptomatology and its persistence, and the MRI, that the incident on 16 November 2000 caused the protrusion. Professor Ghabrial has made clear that calcification of the L4/5 disc makes it vulnerable to force of the kind the applicant experienced while leaning forward to dust and to grip, turn and heave the safe handle. Unlike the focal central protrusion of the L2/3 disc, Professor Ghabrial explained that the protrusion at the L4/5 level would be unlikely to resolve because that disc was degenerative and hence dehydrated. His evidence was convincing. I prefer the evidence of Professor Ghabrial who has reasoned that calcification of the L4/5 disc, in probability following the October 1986 incident, gave stability to the damage, allowing the applicant’s symptoms to resolve, thus explaining why Ms Evans was asymptomatic subsequently for so many years. On balance I find that the November 2000 incident has resulted in Ms Evans’ degenerative disc disorder becoming symptomatic and remaining so. I do not accept, therefore, that the incident resulted only in a temporary aggravation.
50. Recently, Gyles J in Australian Postal Corporation v Bessey (2001) 32 AAR 508 stated the law regarding the concept of an aggravation of an ailment as follows:
[6] It has been well settled by a series of decisions starting from Jordan CJ's judgment in Salisbury v Australian Iron & Steel Ltd (1943) 44 SR (NSW) 157, including Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19; Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533 and Casarotto v Australian Postal Commission (1989) 86 ALR 399, that if an underlying condition is aggravated, in the sense of been made worse, then any incapacity which results is compensable. On the other hand, if the aggravation is temporary, so that after a time it ceases to have any effect and leaves the underlying condition no worse, then there is no relevant continuing injury causing incapacity.
Accepting, as I do, that Ms Evans still suffers lower back pain and restricted back movement from the November 2000 incident, and accepting the evidence of Professor Ghabrial about the focal central protrusion at L4/5 and the applicant’s consequent susceptibility to symptoms from various work and domestic activities, I find that this incident has brought about a permanent change in her degenerative disc disease. That is, her asymptomatic degenerative disease of lumbar discs has been rendered symptomatic and continues to be so. In Professor Ghabrial’s opinion, which I accept, it will remain so. The respondent, therefore, remains is liable to pay compensation, for example for medical expenses, in respect of the applicant’s continuing lower back pain sustained on 16 November 2000.
51. In relation to the claim for compensation in respect of permanent impairment of the thoraco-lumbar spine, both Professor Ghabrial and Professor Oakeshott accept there is such a permanent impairment and I find accordingly. On examination Professor Ghabrial noted that Ms Evans could only bend forward to just below the knee. He concluded from this that she had a loss of more than half the range of movement, normal being able to touch the floor. He did not measure extension or rotation of the spine, only the applicant’s forward flexion. Professor Ghabrial’s oral evidence was that he discounted extension because it is not indicative of restricted movement of the lumbar spine. He thought that three degenerated discs and the protrusions at L2/3 and L4/5 would average out at a loss of half range of movement.
52. Professor Oakeshott’s evidence, however, was that the applicant’s satisfactory straight leg raising indicated a lack of back pain. When tested in cross-examination, Professor Oakeshott refuted the suggestion that the applicant’s pain on bending forward with her fingertips at knee level was due to any pathology or condition affecting the applicant’s hips. He disagreed with the view of Professor Ghabrial that bending forward to knee level indicated a loss of half range of movement of the thoraco-lumbar spine. Additionally Professor Oakeshott found that Ms Evans comfortably bent backwards and rotated her back, though with some increase in pain on rotating to the right.
53. I accept the respondent’s submission that Professor Ghabrial’s opinion disregarded other types of movement that are made by the spine. Given his more comprehensive testing of spinal movement, I prefer Professor Oakeshott’s evidence in support of the finding of a 5 per cent impairment, minor restrictions of movement. I am not satisfied that the aggravation of Ms Evan’s degenerative disc disorder has resulted in a compensable degree of permanent impairment of thoraco-lumbar spinal function as required by s.24(7).
54. Table 9.5 of the Guide, dealing with lower limb function, sets down the following description of a 10 per cent level of impairment, the minimum level of compensable impairment :
Can rise to a standing position and walk BUT has difficulty with grades and steps.
In his opinion dated 26 October 2001 (Tb8) Professor Ghabrial wrote that Ms Evans had difficulty with grades and steps but without giving any examples. When cross-examined Professor Ghabrial was unable to refer to a history of activities that would suggest difficulty with grades and steps. In Professor Oakeshott’s opinion Ms Evans did not have a permanent loss of the efficient use of either leg at or above the knee.
55. The applicant stated in her evidence that she walks up stairs at her work-place. She uses steps at the pool when doing hydrotherapy. Apart from the statement in Professor Ghabrial’s report, there was no evidence of Ms Evans having difficulty with grades and steps. I prefer the opinion of Professor Oakeshott and find on the balance of probabilities that Ms Evans has not suffered a permanent impairment of lower limb function.
56. The tribunal will set aside the reviewable decision made on 20 November 2001 ceasing liability for compensation for an injury to the applicant’s lower back sustained on 16 November 2000. The decision made on 26 November 2001 is varied by finding that liability under the Act for the injury to the applicant’s lower back sustained on 16 November 2000 continues but affirms the decision to deny liability under ss. 24, 25 and 27 of the Act. The tribunal finds that there is no liability under the Act or the Compensation (Commonwealth Government Employees) Act 1971 (repealed) for lump sum compensation in respect of the injury to the lower back sustained on 8 October 1986.
57. The respondent is liable to pay Ms Evans’ costs of these proceedings in accordance with the General Practice Direction of the tribunal.
I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of P.J. Lindsay, Senior Member:
Signed: .......................................................................................
AssociateDate of Hearing 12 & 13 June 2003
Date of Decision 24 December 2003
Counsel for the applicant Mr GiagiosCounsel for the respondent Ms Henderson
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