Fache and Australian Postal Corporation
[2003] AATA 1022
•9 October 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1022
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2001/1004
GENERAL ADMINISTRATIVE DIVISION ) Re TRICIA FACHE Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal P. J. Lindsay, Senior Member
Dr M.E.C. Thorpe, MemberDate9 October 2003
PlaceSydney
Decision The tribunal affirms the decision under review. (sgd) P.J. Lindsay, Senior Member
CATCHWORDS
Workers Compensation – injury to lower left back during employment – whether entitled to compensation for permanent impairment of lower back and lower limbs – decision affirmed.
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 24, 27
Collins v Repatriation Commission (1994) 33 ALD 557
Re Brouwer and Australian Postal Commission [2001] AATA 570
REASONS FOR DECISION
9 October 2003 P. J. Lindsay, Senior Member
Dr M.E.C. Thorpe, Member1. This is an application by Tricia Fache (the applicant) for review of a decision by the Australian Postal Corporation (the respondent) on 17 May 2001 denying her claim for compensation for permanent impairment of her back.
2. At the hearing, Mr S Dixon of counsel appeared for the applicant and Mr G Johnson of counsel appeared for the respondent. The applicant gave oral evidence as did Dr D Bray, an orthopaedic surgeon, and Dr N McGill, a rheumatologist. The Tribunal had before it the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T documents) and the exhibits tendered at the hearing.
background
3. Ms Fache commenced employment with the respondent in 1996 as a postal delivery officer. On 24 October 1996 she reported an incident that happened at work on 4 September 1996 in which she injured her lower back. She reported the incident in the following terms (T5-32):
Loaded backpack with AD Pack and lifted it onto my back. As I lifted the pack onto my back I felt a sudden pain in my lower left back. This pain persisted over the following weeks causing me to seek medical advice.
On 31 October 1996 the applicant lodged a claim for rehabilitation and compensation (T5-36).
4. On 6 November 1996 Ms Fache made the following statement regarding her injury on 4 September 1996 and subsequent events (T5-42):
On September 4th 1996 I injured my lower back while lifting a Postal Backpack loaded with Ad Packs. On returning to Newtown Post Office at the conclusion of my run, I reported this to my superiors, Mark Longhurst and Shayne Fahey. The following day 5th Sept 1996 I attended work and fulfilled my duties with quite a deal of pain in my lower back. The pain was so severe that I called in sick on Friday 6th Sept. … On resuming work on the 9th Sept I was still in a lot of pain, as a result my superiors had reduced the intensity of my run until I received a trolley to use instead of a backpack. From the 16th Sept I was back on full runs using the trolley.
I continued to have chronic pain in my lower back the severity of which was very debilitating. On Monday 23rd Sept I worked a particularly heavy run due to excessive mail. At the conclusion of this run the pain in my back had intensified. I called in sick on Tues 24th Sept as I no longer could tolerate the pain. It was at this stage I sought medical advice. My doctor advised me to take sick leave for 4 days from Wednesday 24th Sept to Friday 27th Sept. I returned to work the following Monday 30th Sept and Tuesday 1st October. This work once again aggravated my lower back causing me extreme pain. I called in sick on Wed 2nd October so I could once again seek medical advice from my doctor. As the pain was ongoing and easily aggravated by minimal exertion, my doctor advised me to cease work and begin an intensive rehabilitation process involving physiotherapy.
Presently I am attending physiotherapy three times a week and performing light duties at work. …
5. The respondent accepted Ms Fache’s claim, describing the injury as ‘lower back pain - soft tissue (ligament & muscle strain)’ and commenced payment of weekly compensation (T7). The applicant attended a workplace assessment on 6 November 1996 where it was recommended that she initially be placed on indoor duties with a gradual reduction in lifting restrictions over an eight week period (T6). There was another workplace assessment on 6 January 1997. Following this assessment it was recommended that the applicant undertake further restricted duties over a nine week period, but gradually increasing to her normal workload over this time (T8). After being certified fit by Dr A Wacher, general practitioner, the applicant resumed full normal duties on 5 March 1997 (T11). She continued to receive treatment throughout the remainder of 1997, and during 1998 and 1999, with intermittent restricted duties.
6. On 3 August 1999 the applicant lodged a further claim for rehabilitation and compensation (T35). In this claim the applicant stated that she had injured her back on 5 July 1999 while despatching mail bags. She stated:
I was transfering mail bags from large bin to conveyer belt [sic]. One mail bag was overweight although it appeared to be nearly empty.
7. Her claim was accepted but limited to the period between 14 July 1999 and 16 July 1999 on the basis that Dr Wacher indicated she would be able to resume pre-injury duties on 19 July 1999 (T36).
8. On 8 June 2000 Ms Fache claimed lump sum compensation for a permanent impairment of her back (T39). On 9 April 2001, the claim was refused by a delegate of the respondent (T57). The applicant sought reconsideration of the decision on 12 April 2001 (T58). The decision was affirmed by a delegate of the respondent on 17 May 2001 and the applicant appealed to the tribunal for review.
applicable legislation
9. Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the Act) provides that an applicant is to be paid compensation if he or she suffered an injury that has resulted in an incapacity for work or an impairment.
10. The following definitions are relevant:
Interpretation
4. (1) In this Act, unless the contrary intention appears:
…
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;
permanent means likely to continue indefinitely;
11. The applicant is seeking compensation under ss. 24 and 27 of the 1988 Act; section 24 relevantly states:
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.
(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, 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 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.
…
12. The following tables from the Guide are relevant:
Table 9.5: Limb Function – Lower Limb (Percentage Whole Person Impairment)
%
DESCRIPTION OF LEVEL OF IMPAIRMENT
10
Can rise to standing position and walk BUT has difficulty with grades and steps
20
Can rise to standing position and walk but has difficulty with grades, steps and distances
30
Can rise to standing position and walk BUT is limited to level surfaces
50
Can rise to standing position and maintain it with difficulty BUT cannot walk
65
Cannot stand or walk
Table 9.6:
Table 9.6: Spine (Percentage Whole Person Impairment)
Note: Lesions of the sacrum and coccyx should be assessed by using the table which most appropriately reflects the functional impairment. This will usually be Table 9.5.
Lesions of the spine are often accompanied by neurological consequences. These should be assessed using Table 9.4 or 9.5 and the results combined using the Combined Values Table
%
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
evidence
13. Ms Fache's evidence was that she left school in 1980 after completing the Higher School Certificate, then went into nursing where she worked for about thirteen years. She became a permanent full-time employee of Australia Post in 1996.
14. Ms Fache said she had a medical examination before commencing full time employment and that she was in perfect health. She said that she did not have problems in sorting and delivering mail until the incident on 4 September 1996.
15. She described the incident on 4 September 1996. She said she was on her delivery run and was filling up her backpack at a depot box. As she was lifting the backpack onto her back she felt a sharp, severe pain in her lower back. She finished the run and then reported the incident and her injury to a supervisor. In spite of feeling pain in her lower back and left buttock, she continued with her run. The next day she went to work and did her normal run, still in severe pain. She said the pain extended down from her left buttock to the back of her left leg, but the pain did not continue there all the time. She took a day off work to try to relieve the pain. On her return, she did delivery work using a trolley instead of the backpack. She continued to work until 24 September 1996 when she saw Dr Wacher who certified her unfit for work for four days. Dr Wacher prescribed Panadol and Nurofen.
16. On returning to work she went on to light duties. She saw Dr Wacher from time to time for continuing problems with her back and left leg, and was treated by a physiotherapist. She had some further time off work. She undertook a work place assessment in December 1996, at which time she was on restricted duties and still suffering from chronic back pain. Ms Fache said that in January and February 1997 she was experiencing problems in doing her work. She was assessed by Dr J Chen, consultant physician in occupational medicine, on 19 February 1997. Dr Chen was given a history (T10) that referred to the incident on 4 September 1996 causing pain to the applicant’s left lower back. She aggravated the condition in mid December 1996 while using the trolley and in addition suffered left thigh pain. At the time of the assessment Ms Fache was performing indoor duties only. Ms Fache’s symptoms were intermittent pain in the left sacro-iliac region aggravated by prolonged sitting and standing, vacuuming, walking up stairs and inclines. When her left side back pain became severe, she also experienced pain in her left buttock and posterior left thigh. There was no tingling or numbness in the legs.
17. Dr Chen found (T10) a full range of trunkal movements with low back pain on full trunkal extension. All other movements were free from pain. No neurological abnormalities were detected in the lower limbs. Dr Chen considered that the prognosis for full recovery from the musculo-ligamentous low back sprain was good but the healing could take six to nine months. Dr Chen thought that the applicant would be fit to resume her full duties in about 8 to 10 weeks time.
18. Ms Fache said she was gradually able to return to normal duties. In March 1998 Dr Wacher referred her to Dr D Lewington, rehabilitation physician, because her back was not improving. At this time Ms Fache was still using the trolley for deliveries and walking approximately seven to eight kilometres a day. Her run required her to go up and down stairs and she said that going down stairs caused pain in her lower back and buttock. Dr Lewington found a full range of movement with some pain on extension. In Dr Lewington’s opinion (T14) the applicant has a mechanical back pain probably secondary to an L5-S1 facet joint sprain injury although it was not possible to exclude an L5-S1 disc annular tear. At that stage, he felt the best treatment was for a structured and supervised physical upgrading program based on therapeutic exercises in a gymnasium. In a report to Australia Post dated 3 June 1998 (T16) Dr Lewington stated that he was unaware of any contributing factor that occurred or existed prior to the incident on 4 September 1996 and he had no doubt that Ms Fache’s current condition was related to that incident. On the recommendation of Dr Lewington, the respondent agreed in August 1998 to Ms Fache’s participation in a fit for work rehabilitation program. By the end of 1998 Ms fache was working full duties.
19. This state of affairs continued until 5 July 1999 when the applicant experienced a sharp pain in the back while lifting a heavy mailbag. The pain was in the same part of her lower back as previously. She also felt pain in the left buttock and down the left leg after this incident. She continued to work. On 15 July 1999 she attended Dr Kong of Health Services Australia who recorded (T34) that the incident on 5 July 1999 caused low back pain and radiating pain in the left buttock but no neurological symptoms in the lower limbs. Dr Kong found localised tenderness to the left of her lumbar spine and restricted back extension due to pain. Other back movements were reasonable.
20. Ms Fache continues to work full duties for Australia Post. In cross-examination she agreed that after each of the injuries suffered at work she has, after an initial period, been able to resume her full duties.
21. Ms Fache gave evidence that she does not bend her back, instead she bends at the knees to lift. She said she is unable to arch her back as she did before the incident in September 1996 and is unable to flex to the side. Prolonged standing makes her back worse and she has difficulty with prolonged sitting. She also has problems sleeping because of back ache and is unable to lift heavy objects. She takes Nurofen and Panadol to ease the pain. Walking up an incline occasions back pain, she walks more slowly than in the past and she has a limp every second or third day. She described feeling something similar to an electric shock in her left leg that goes down the left buttock and into the back of her left leg. The extent of pain in the leg is dependent upon her work load and occurs every third or fourth day.
22. Prior to the incident in September 1996 Ms Fache played touch football and basketball, and enjoyed scuba diving and skiing. She has had to stop these sporting activities since the incident. She is unable to vacuum and gardening is painful. Ms Fache acknowledged that she has attended a number of rehabilitation programs organised by her employer. She maintains an exercise program and swims. She goes to a gymnasium and does back and stomach strengthening exercises.
23. In cross-examination Ms Fache agreed that she did not mention the left leg in her claim for compensation in 1996. She also agreed that every day she walks up 20 stairs from the basement garage at work to the floor where she works, and that in using the lunch room and toilet she must walk up a flight of stairs. Her current run requires her to go up steps at some premises to make deliveries. She agreed that she has not complained about being unable to do her run, which she accepted was a standard run that has not been modified for her. She agreed that she walks seven to eight kilometres a day in the course of her work. She denied that she exaggerates her symptoms. Ms Fache did not agree that her back pain is something that comes and goes, and she did not agree that it is a very minor restriction of movement. She maintained that she puts up with the pain to perform her work duties.
24. Ms Fache was referred to Dr Chen's report of 19 February 1997 (T10) which described the applicant’s experiencing back discomfort after a hard day's work for the first two years of nursing some 14 or 15 years previously. Ms Fache denied having given that history to Dr Chen. Further, she did not agree with Dr Chen's finding that she was free of pain in relation to straight leg raising. Ms Fache similarly maintained that she did not inform Dr D Maxwell, orthopaedic surgeon, during the examination he conducted for the respondent on 15 March 2001, that she has no problems walking up and down stairs (T55).
25. In cross-examination Ms Fache her back movements were full on each occasion that she was examined by Dr Lewington. Mr Johnson referred her to Dr Maxwell’s report which stated that she was able to flex and reach the lower third of her calf, that she was able to fully extend her spine and that she was able to fully straight leg raise.. Ms Fache could not remember the range of movements at these examinations. She did, however, agree with Mr Johnson's summary of Dr Bray's findings that she had three-quarters of normal range of movement on extension of the spine and discomfort on lateral flexion to the left, but otherwise she had no restriction of movement of the spine. She also accepted Dr. Lawson's observation that she had a “fair range” of straight leg raising.
26. The Tribunal questioned Ms Fache on her opinion about the cause or diagnosis of her condition and her reply was “lower back injury.” She had been told from the result of the CT scan that she had one or two discs that were bulging.
27. The Tribunal referred Ms Fache to Dr J Lawson’s report (T52-158) and in particular to the section labelled Psychologic Questioning where Dr Lawson states:
She is getting emotional and depressed and is in pain. Her work future remains uncertain
Ms Fache considered this to be a fair assessment of her condition.
Dr Wacher
28. Dr Wacher has been Ms Fache’s general practitioner for the past twenty years. He was involved in the management of her recurring back pain since the incident on 4 September 1996 and, to June 2001, had seen her five times with recurrences of pain since the incident in September 1996. In his report of 1 June 2001 (Exhibit A2) Dr Wacher noted that he had last seen the applicant on 21 December 2000 when she suffered a recurrence of her pain. Dr Wacher stated in this report:
I have no doubt that she continues to suffer episodes of back pain, which relates to her injury on September 5 [sic] 1996. She has sought minimal time off when she has had recurrences and has always made every effort to minimise her long-term problems with a dedicated exercise program.
29. On 28 June 2001, in a hand-written addendum to a copy of his report of 1 June 2001, Dr Wacher assessed Ms Fache as having a 10 per cent impairment of her lumbosacral spine (Exhibit A2). This was despite stating in his report of 1 June 2001 that he had no expertise in assessing impairment according to the Comcare Guide.
Dr Lawson
30. Dr J Lawson, consultant physician, originally examined Ms Fache on 7 December 1999 at the request of her solicitors and reviewed her on 18 July 2002. Dr Lawson noted that since the incident in September 1996 Ms Fache had injured her back at work on two occasions, during the high volume season of Christmas 1998 and in early 1999. On both these occasions she informed Dr Lawson that she had been lifting heavy mail bags.
31. Dr Lawson referred the applicant for CT scan of the lumbar spine. In his report dated 7 December 1999 (T52) Dr Lawson noted that the CT scan showed slight bulging of the L3/4 disc and posterior bulging of the L4/5 disc, but no nerve root entrapment or canal stenosis. Early osteoarthritic changes in the facet joints at all levels were observed. Dr Lawson thought it unusual for a person of the applicant’s age (she was then 36) to have symptoms of degenerative lumbar spinal disease and he thought the injury suffered in September 1996 was relevant. Examination revealed slight restriction of lower back flexibility and movement, particularly forward flexion, although normal mechanics of movement were retained. In Dr Lawson’s opinion Ms Fache appeared to have sustained disc damage as a result of the incident in September 1996. According to Table 9.6 of the Comcare guide he assessed a 15 per cent permanent impairment.
32. Dr Lawson examined the applicant again on 18 July 2002. She complained of pain continuing on most days in the lower back and affecting the right lower back and, sacroiliac region and radiating to the right buttock and right posterior thigh. There was no trend towards improvement in the lumbar spine and she had some signs of neurologic defect affecting her left leg. Dr Lawson found lumbar spinal movement of approximately half range for a patient in her age group with forward flexion 60 degrees, lateral flexion 15 degrees to both sides, and rotation 15 degrees (Exhibit A6). There was a possible reduction of left buttock and upper thigh muscle tone and development. Dr Lawson again assessed a 15 per cent impairment under table 9.6, stating that there was loss of more than half the normal range of lumbar spine movement. In a supplementary report dated 13 August 2002 (Exhibit A6) Dr Lawson referred to the minimal reduction of left thigh muscle and change in tendon reflex which is generally consistent with difficulties with steps, slopes and distances, and assessed a 10 per cent whole person impairment in accordance with table 9.5. In his opinion Ms Fache did not demonstrate the diagnostic criteria for chronic pain syndrome.
Dr Lewington
33. Dr Lewington provided the applicant’s solicitors with a report dated 13 November 2001 (Exhibit A4) which stated that he first saw the applicant on 25 March 1998 and then treated her for a few months, the final consultation being on 12 August 1998. Dr Lewington reported:
Main findings on examination was that of a well muscled young woman with nil evidence of exaggerated pain behaviour. Back movements were full but there was some pain on extreme of movements. She was tender to palpation mainly over the right L5/S1 facet joint region as well as centrally and over the upper sacroiliac joint on the right side. Sacroiliac stress tests were negative. There was nil focal neurological deficit.
34. Dr Lewington stated that the applicant’s back condition was wholly attributable to her injury on 5 [sic] September 1996. He also noted that, subsequent to the incident in September 1996, there were two aggravations also work related. In his opinion “the symptoms, signs and reports of disability were totally consistent with the nature and mechanism of the injury as described”. Dr Lewington concurred with Dr Lawson’s assessment of 15 per cent impairment according to table 9.6. He disagreed with Dr Maxwell’s opinion that there was no clinical evidence of a lumbar disc lesion and his assessment of 0 per cent permanent impairment, particularly in light of Dr Maxwell’s noting the persistence of symptoms some 4½ years after the initial incident and the applicant’s successful completion of a rehabilitation program.
35. Dr Lewington reviewed the applicant on 12 March 2002 and provided a further report dated 16 July 2002 (Exhibit A7). Dr Lewington noted that she had been able to continue with her job as a postal delivery officer and was coping quite well but that she continued to be bothered by fairly constant back pain of a varying intensity dependent upon her activity levels and referred pain in the left thigh. Dr Lewington found a good range of spinal movement apart from mild restriction in lumbar extension and no other focal deficit. Overall her back condition was stable with little prospect for change. Dr Lewington assessed the applicant as having a 5 per cent whole person impairment in accordance with table 9.6 of the Comcare Guidelines. In a subsequent report dated 31 July 2002 (Exhibit A7) requested by the applicant’s solicitors, Dr Lewington reassessed Ms Fache as having a 10 per cent whole person impairment under table 9.6, which he said was a fair and reasonable estimation of the applicant’s back condition. It is noted that the assessment was varied after the applicant’s solicitors advised Dr Lewington that the applicant had problems or difficulties with steps, grades, slopes and longer distances.
Dr Maxwell
36. Dr Maxwell, an orthopaedic surgeon, examined Ms Fache on 15 March 2001 at the request of the respondent. In his report of 15 March 2001 (T55) Dr Maxwell stated that the applicant had 0 per cent whole person impairment in accordance with table 9.6 of the Comcare Guidelines. In his opinion:
It appears that Ms Patricia Fache sustained a sprain of the L5/S1 facet joint on the left in the course of her work, and she has had approximately three recurrences of this over the last three to four years.
The prognosis for this condition in a young person is good. With the passage of time, the symptoms will resolve as this local joint strain is not normally a condition which causes prolonged disability.
There is no clinical evidence that she sustained a lumbar disc lesion, and certainly no evidence of neurological compromise.
37. Ms Fache had completed a survey on non-economic loss in March 2001 (T56). In Dr Maxwell’s opinion her complaints about pain and restriction of mobility and participation in physical activities were “somewhat exaggerated” (T55). Dr Maxwell stated that her depression was a somewhat abnormal reaction to a relatively mild disability. He considered that upgrading her level of activities would most likely be beneficial rather than harmful.
Dr Sun
38. Dr C Sun, rehabilitation consultant, examined the applicant on 2 July 2002 at the request of her solicitors. In his report of 3 July 2002 (Exhibit A5), Dr Sun recorded Ms Fache’s complaint of constant pain in her left buttock and left thigh with intensity of 8/10. There was intermittent low back pain of 4 to 5/10 on most days lasting for a few hours. In his opinion the effects of the initial injury on 4 September 1996 were aggravated by her normal duties as a postal delivery officer. Dr Sun’s examination found that the applicant’s spinal movements were within normal range but extension provoked symptoms. Dr Sun noted:
The clinical picture is consistent with persistent pain as a result of a lumbosacral and left sacroiliac sprain.
…
In my opinion her current impairment is a result of the injury at work on 4 September 1996 as described and also due to the nature and conditions of her employment with repetitive lifting, bending and twisting.
In his opinion the applicant’s symptomology did not demonstrate chronic pain syndrome.
39. In a supplementary report of 21 August 2002 (Exhibit A5) Dr Sun noted that Ms Fache’s spinal movements were within normal limits but that extension provoked her symptoms and thus he assessed her as having a 10 per cent whole person impairment in accordance with table 9.5 of the Comcare Guide and a 10 per cent whole person impairment in accordance with table 9.6.
Dr Bray
40. Dr D Bray, orthopaedic surgeon, first examined Ms Fache on 2 October 2001 at the respondent’s request. The history referred to the incident on 4 September 1996 when the applicant experienced a sharp pain in the low back on the left side with some pain going into her right leg. She had not made a full recovery. Dr Bray found her lumbosacral spine was restricted only on extension and some discomfort on lateral flexion to the left. Dr Bray found wasting of the left leg calf which he considered significant in a young, fit woman. Dr Bray referred to the CT scan taken in December 1999 and thought the applicant probably had symptoms of a prolapsed intervertebral disc. Dr Bray assessed a 5 per cent permanent impairment under table 9.6 reasoning that the loss of extension was a minor restriction of movement. Dr Bray did not believe that active treatment was required but she should avoid heavy lifting. In his opinion,
… it is probably significant that she does not report a specific injury at work, but rather onset of pain in the course of her work, which would support the contention that her problem is that of a constitutional lack of fitness for work requiring heavy lifting and bending or repeated lifting and bending. It could be considered that any impairment is more a reflection of her build than of any work related injury. (Exhibit R1)
41. Dr Bray again examined the applicant on 5 September 2002. In his report of 6 September 2002 (Exhibit R2) Dr Bray noted that Ms Fache insisted that she did suffer an acute injury on 4 September 1996. He noted that the respondent had organised for her to attend a fitness program at a gymnasium under the supervision of a trainer which she thought was helping her. The applicant’s complaints were of chronic low back pain going into the left buttock and occasionally down the left leg to the mid thigh. On examination he found a mobile lumbosacral spine but with only half the normal range of extension, a normal range of lateral flexion to both sides and a normal rotation of the thoraco-lumbar complex. There was no wasting of calf muscles. He did not judge the applicant to exaggerate her symptoms and did not consider her to suffer from chronic pain syndrome. In his opinion:
On the balance of probabilities the condition of a low back strain and left sided sciatica was due to her employment. She may have been predisposed to this by her small light build and this constitutional factor is responsible for some of the limitations imposed upon her now.
…
I consider her employment a contributing factor in that she was involved in intermittently lifting heavy weights and probably weights that were too heavy for a person of her small light build. I do not feel there is any other major contributing factor.
Having sustained a low back strain there is an undoubted possibility that some symptoms associated with this may continue to some extent. Despite the fact that she complains of chronic pain, she has however, managed to obtain and maintain a good range of movement of her low back.
42. In a separate report also dated 6 September 2002 (Exhibit R2) Dr Bray considered that table 9.5 did not allow for an assessment of permanent impairment of the left lower limb despite there being some symptoms in that limb. He assessed a 5 per cent whole person impairment in accordance with table 9.6 of the Comcare Guide due to the applicant’s minor restrictions of movement and stiffness of the low back.
43. Dr Bray’s oral evidence confirmed his diagnosis of low back pain which he understood to be non-specific. He stated that there was no proof as to the exact lesion on the applicant’s low back and although she had very definite symptoms of left sided sciatica there were no signs of that condition. Dr Bray confirmed that the minor loss of spinal movement was in respect of extension only.
44. Under cross-examination, Dr Bray agreed that Ms Fache told him that she was managing at work, on full duties although the delivery work caused her some pain. Asked to assume that the applicant had difficulty with steps, slopes and weights, Dr Bray accepted that such difficulty would be consistent with low back pain and left sided sciatica, but in amplification Dr Bray said that the difficulty did not make her unable to manage her work. Mr Dixon proposed that Ms Fache seemed literally to qualify for an assessment of 10 per cent given that she “can rise to a standing position and walk but has difficulty with grade and steps and distance”. Dr Bray did not accept that Ms Fache’s clear presentation to him demonstrated a difficulty to do the things noted in table 9.5 that corresponded to a 10 per cent level of impairment of the lower limb. He thought the absence of wasting in the left calf muscle on his second examination was consistent with recovery and his assessment of 0 per cent permanent impairment.
45. In relation to table 9.6 dealing with loss of function of the spine, Dr Bray confirmed that Ms Fache had a loss of movement of the thoraco-lumbar spine that was more than minor but not major, explaining that the restriction left her with much more than half range of movement. Dr Bray emphasised that Ms Fache had a minor restriction of just one movement and he could not assess more than a 5 per cent impairment.
Dr McGill
46. Dr McGill, consultant rheumatologist, examined the applicant on 30 October 2002 for the respondent. In his report of the same date (Exhibit R3) Dr McGill reported that Ms Fache’s current symptoms included intermittent pain in the left buttock and a lesser discomfort in the lower back, the pain sometimes being associated with physical activity. Dr McGill recorded that the applicant usually goes to the gym every second or third day for 1 to 1½ hours, using free weights, constrained machine work and doing stretches. On examination Dr McGill found full lumbar flexion without discomfort but extension produced low back discomfort. On the basis of his examination, Dr McGill thought that he could not be certain of the cause of the pain but stated that “ … the fact that her low back discomfort was reproduced by lumbar extension rather than flexion and that she had no suggestion of nerve root irritation, would be in keeping with a facet joint source of pain.” Dr McGill concluded that Ms Fache’s left low back and left buttock symptoms were due to a mechanical problem in the low back. He was not able to be definite as to the exact nature of the minor mechanical problem but he thought the symptoms would most likely fit for facet joint osteoarthritis. In his opinion
… it is very unlikely that the episodes in September 1996, and eight to twelve months later, or her work duties in general, have produced any permanent or ongoing effect on her low back.
I think her current low back symptoms would probably have been the same regardless of her work duties.
She is fit to continue her full work duties as she is currently performing.
47. Dr McGill assessed the applicant as having no permanent impairment in accordance with table 9.6 or in relation to any other tables in Section 9 of the Comcare Guide. He affirmed his position in a later report dated 9 November 2002 (Exhibit R3). Dr McGill challenged Dr Lewington’s conclusion of a 15 per cent whole person permanent impairment under table 9.6 given that Dr Lewington found Ms Fache to have a full range of back movement. Dr McGill summed up by stating that as different doctors have offered different diagnoses it was not possible to be confident about the exact nature of the minor mechanical problem in the low back.
48. Dr McGill gave oral evidence and confirmed that the applicant’s symptoms were in keeping with minor mechanical problems in the lower back with the most likely diagnosis for the source of her pain being facet joint osteo-arthritis. Dr McGill considered that the two work related incidents would, at the time, have been sufficient to produce symptoms from osteo-arthritic facet joints. Despite this, he felt that the episodes were temporary in nature and not sufficient to have caused damage to the facet joints or on-going change. Dr McGill considered there was no problem in the lower limbs and no suggestion of an impairment assessable under table 9.5. He stated that on examination Ms Fache had a full range of low back movement and thus he felt there was no impairment that was assessable under table 9.6.
49. Under cross-examination Dr McGill agreed that it could be argued whether the Ms Fache’s symptoms stemmed from her facet joints. Dr McGill did not believe that there was any likelihood that work incidents had led to permanent damage of the facet joints or caused osteoarthritis to develop or to accelerate the underlying process that led to facet joint osteoarthritis. The applicant’s physical activity at work would not cause the underlying osteoarthritis that Dr McGill said develops as a constitutional disorder, or influence the state of her facet joints. Further, he did not accept that it was probable that the pain radiation into the buttocks stemmed from some degree of lower lumbar disc disruption. The minor degree of disc bulging was the setting for degenerative lumbar disc disease. Dr McGill said that Ms Fache did not have a genuine difficulty with walking long distances, pointing to her very active physical program that, at one point, included cycling ten to fifteen minutes to work, lifting free weights in the gym and exercising for an hour and a half on alternate days.
50. Ms Fache underwent a CT scan of the lumbar spine on 7 December 1999 (Exhibit A3). Following this scan, Dr M Roberts reported a slight bulging of the L3/4 disc but noted that there was no nerve root entrapment or obvious canal stenosis. At the L4/5 disc, posterior bulging was also observed, but again there was no evidence of nerve root compression or canal stenosis. At L5/S1 there was no evidence of disc bulge or protrusion. Some early changes of osteoarthritis in the facet joints were evident at all levels.
consideration and findings
51. For the applicant Mr Dixon submitted that the incident on 4 September 1996 resulted in an injury to Ms Fache’s lower back and left leg, and the injury has been exacerbated on at least two subsequent occasions through her lifting heavy mail bags.
52. The tribunal notes that Ms Fache described her injury in the claim form as a “left lower back injury.” Although there were considerable differences in the diagnoses of the injury amongst the various specialists, there was a general agreement that she had suffered an injury in the course of her work and in this regard the tribunal relies on the opinions of Dr Lawson, Dr Maxwell, Dr Lewington and Dr Bray. Dr Lawson felt that the applicant’s history of continuing pain and restrictions pointed to intervertebral disc damage as a result of the work injury in 1996. In Dr Maxwell’s opinion Ms Fache had sustained a sprain of the L5/S1 facet joint in her work and had experienced approximately three recurrences of that injury. Dr Lewington thought that the applicant’s mechanical back problem, probably secondary to an L5/S1 facet joint strain, was attributable to the work injury in September 1996 and that she had experienced two further work-related aggravations. Dr Bray felt that on the balance of probabilities the condition of a low back strain and sciatica in the left leg was due to her employment.
53. It is also noted by the tribunal that in Dr McGill’s opinion it was not surprising that different doctors had suggested different diagnoses because it was not possible to be confident as to the exact nature of the minor mechanical problems Ms Fache was experiencing in her lower back. Dr McGill also noted that the pattern of symptoms appeared to be consistent with facet joint osteoarthritis. The tribunal, therefore, accepts that Ms Fache suffered an injury to her lower back while working for Australia Post in September 1996. It is also accepted that there was an aggravation of that injury in July 1999. The tribunal is satisfied that the injury to Ms Fache’s back resulted in her experiencing symptoms in the low back, left buttock and left leg. It is noted that the radiological examinations confirm an injury. The CT scan showed facet joint osteoarthritis and noted disc bulging at the L3/4 and L4/5 levels. A specific diagnosis, however, is not made. The tribunal, in its inquisitorial role, raised the possibility of Ms Fache having a chronic pain syndrome. However, Dr Bray, Dr Sun and Dr Lawson did not support a diagnosis of chronic pain syndrome.
54. Mr Dixon submitted that Ms Fache is entitled to compensation under the Act in respect of a permanent impairment resulting from the injury. In relation to permanent impairment of the thoraco-lumbar spine, Mr Dixon submitted that Dr Lawson’s assessment of 15 per cent was appropriate as Ms Fache has lost more than half normal range of movement expected for her age group. He submitted that Dr Bray’s evidence that the applicant’s thoraco-lumbar spinal movements were less than half normal range of movement supported an assessment under table 9.6 of 10 per cent, contrary to doctor’s written opinion that, as the restrictions and stiffness were minor, 5 per cent was the appropriate assessment.
55. Mr Johnson referred to Dr Lewington's report (Exhibit A4) where it was noted that “back movements were full but there was some pain on extremes of movement”. In his submission it was difficult to reconcile this statement with a finding that the applicant was suffering from a permanent impairment because there was no loss of a range of movement. Further, he also found it difficult to reconcile Dr Lewington's finding that there was no reason to doubt Dr Lawson's assessment of 15 per cent whole person impairment according to table 9.6 considering the earlier finding of full movement. Mr Johnson was critical of Dr Lewington’s increase in assessment from 5 per cent to 10 per cent under table 9.6, noting that this was based on a letter from the applicant's solicitors concerning problems or difficulties with steps, grades slopes and longer distances, rather than any observations of his own. In relation to Dr Wacher’s report, Mr Johnson referred to the following statement in his report of 1 June 2001: “Regarding your request for whole person impairment I'm afraid I have no expertise in this and suggest referral to a rehabilitation specialist”. Mr Johnson also questioned Dr Sun's report of 3 July 2002. In this report, Dr Sun noted that spinal movements were within normal limits but that extension provoked her symptoms. In Mr Johnson’s submission, on this finding an evaluation in accordance with table 9.6 should have been 0 per cent.
56. To qualify for entitlement to compensation for permanent impairment, subsection 24(7) of the Act must be satisfied. Medical opinion concerning the level of permanent impairment suffered by Ms Fache varied amongst the medical practitioners consulted in this matter. Ms Fache continues to have symptoms affecting her lower back and left leg, and the tribunal accepts Dr Lewington’s conclusion that:
Dr Maxwell has documented persisting symptoms as of March 2001 which is approximately 4 ½ years after her original injury and in such cases I would consider the condition to be permanent especially after she has already successfully completed a rehabilitation treatment programme. (Exhibit A4)
57. Nevertheless, Ms Fache is still required to meet the 10 per cent threshold before she is entitled to compensation. It is useful to outline the various assessments in relation to both the lower limb (table 9.5) and the spine (table 9.6), the impairment that is currently under discussion:
Table 9.5 (%)
Table 9.6 (%)
Dr Wacher
No assessment
10
Dr Lewington
No assessment
5-10
Dr Sun
10
10
Dr Chen
No assessment
No assessment
Dr Bray
0
5
Dr Lawson
10
15
Dr McGill
0
0
Dr Maxwell
No assessment
0
58. In relation to table 9.6 the tribunal observes that on review of the medical reports before it, all doctors, except Dr Lawson, found Ms Fache demonstrated a full range of back movements upon examination, although in some instances discomfort and pain was noted on the extremes of movement. Dr Kong noted that back extension was restricted.
59. The requirements of table 9.6 are quite explicit. Minor restrictions of movement are to be assessed as a 5 per cent degree of permanent impairment. An impairment will be assessed at 10 per cent if there is a loss of less than half the normal range of movement. Dr Bray explained that his rating of 5 per cent was based on an evaluation overall of the restrictions of movement. He emphasised that the restriction was of only one movement, the others being normal. The tribunal accepts his opinion evidence that it was a minor restriction. The tribunal cannot, however, accept the assessments of Dr Sun and Dr Lewington that the applicant has a greater degree of permanent impairment, because both specialists recorded a normal range of movement upon examination. It is noted that Dr Lawson alone assessed the applicant as having 15 per cent permanent impairment, indicating loss of half the normal range of movement. In view of the assessments of the other medical practitioners, the tribunal does not accept Dr Lawson’s findings and assessment. The tribunal accepts Dr Bray’s assessment and Dr Lewington’s initial assessment that Ms Fache has a permanent impairment of 5 per cent.
60. As to the permanent impairment of the left leg resulting from the injury, Mr Dixon noted that Dr Bray accepted that Ms Fache has sciatic type symptoms affecting her leg and probably had their genesis in some discal disruption at L4/5. The symptoms have been present since the incident in September 1996. Mr Dixon submitted that Dr Bray accepted that Ms Fache has difficulty with stairs, requiring her to move more slowly and with pain. Further, he submitted that the degree of permanent impairment was 10 per cent because the Federal Court has held that guidelines should be applied according to their terms and a decision-maker should not determine the result by reference to what a doctor may consider is a fair outcome (Collins v Repatriation Commission (1994) 33 ALD 557at 566-7). Mr Dixon also referred to Dr Bray’s assessment of the applicant as having nil whole person impairment under table 9.5 despite having given evidence that the applicant had problems with stairs, that she was slower in her work, that she had tiredness and limping at the end of a shift. Dr Bray also accepted that prior to the injury she had experienced no problems with hills or grades or distances. It was submitted that in accepting her evidence in this regard, Dr Bray should have assessed the applicant as having a level of impairment of either 10 or 20 per cent. Finally, Mr Dixon referred to Re Brouwer and Australian Postal Commission [2001] AATA 570.. There the tribunal found it relevant in assessing impairment under table 9.5 that, while Mr Brouwer was reasonably healthy, he was not as healthy as he had formerly been and his impairment was such that he had a difficulty with walking and stairs that a healthy 27 year old male would not have.
61. Referring to the Guide’s Principles of Assessment, Mr Johnson submitted that the measurement of impairment required by the Act is a measure of its effect on personal efficiency in daily activities compared with a normal healthy person. Mr Johnson submitted that Ms Fache was quite a healthy person and fit person and that she had significant capacity in the requisite functional sense. As to the various evaluations that have been given under table 9.5, Mr Johnson submitted that Dr Lawson’s determination of 10 per cent permanent impairment appeared to be based on information provided by the applicant’s solicitors and not his clinical assessment of the applicant. He submitted that there were no objective findings in Dr Sun’s report that would justify his assessment of 10 per cent. Mr Johnson urged the tribunal to accept Dr McGill’s evidence that there was no nerve root compression or other interference with leg function, and that the applicant had no genuine difficulty with grades and steps, given her continuing ability to perform her daily work, going up and down stairs and walking considerable distances.
62. Table 9.5 concerns the assessment of lower limb function. A person’s level of impairment will be assessed as 10 per cent permanent impairment where the person “Can rise to a standing position and walk but has difficulty with grades and steps”. Dr Sun and Dr Lawson assessed Ms Fache as having an impairment to this degree. Dr Sun did not provide objective findings to justify his assessment of 10 per cent under Table 9.5. Dr Lawson was alone in finding signs of neurologic deficit affecting the left leg, with muscle reduction and tendon reflex impairment at the left knee. These findings were consistent with difficulty with steps, slopes and distances in Dr Lawson’s view. Again the tribunal was unable to reconcile Dr Lawson’s physical findings with the findings of the other specialists. The tribunal gives less weight to Dr Lawson’s opinion given that his earlier report dated 18 July 2002 found no assessable impairment of the left leg, but he subsequently revised his assessment to a 10 per cent permanent impairment on the basis of information from the applicant’s solicitors not his clinical findings. The tribunal notes that Dr Bray initially found slight wasting of the left calf on his first examination but that this was not present at the later examination.
63. The tribunal finds that Ms Fache is able to continue to work full time as a postal delivery officer using a trolley. In the course of her work she walks about seven to eight kilometres a day. She does a normal run and has not asked for it to be altered.. In cross-examination she agreed that she walks up and down stairs at her place of work, and agreed that she walks up and down flights of stairs during the course of her run. Ms Fache is a physically active woman of 40 who attends a gym a few times a week for 1 to 1½ hours, using free weights and constrained machines. The tribunal finds that there is no neurological interference with her lower limb function. The nature of the physical activities that she undertakes at work and recreationally, and having regard to the assessments of Dr McGill and Dr Bray, and noting that Dr Maxwell and Dr Lewington did not make an assessment in relation to impairment of the lower limb at all, satisfy us that she has a 0 per cent permanent impairment in accordance with Table 9.5. This means that, at the most, the combined impairment of the applicant under tables 9.5 and 9.6 is 5 per cent. This is insufficient to satisfy the requirements of s.24 for entitlement to compensation for permanent impairment. It follows that the decision under review should be affirmed.
Decision
64. The tribunal affirms the decision under review.
I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of P.J. Lindsay, Senior Member, and Dr M. E. C. Thorpe, Member:
Signed: .......................................................................................
AssociateDates of Hearing 4 June 2002
19 December 2002
Date of Decision 9 October 2003
Counsel for the Applicant Mr S DixonCounsel for the Respondent Mr G Johnson
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