Goss and Comcare

[2000] AATA 1016

DECISION AND REASONS FOR DECISION [2000] AATA 1016

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N2000/175

GENERAL ADMINISTRATIVE  DIVISION       )       
           Re      ANDREW  CHARLES  GOSS  
  Applicant

And    COMCARE  
  Respondent

DECISION

Tribunal       Mr B.J. McMahon (Deputy President)     

Date21 November 2000 

PlaceSydney

Decision      The decision under review is affirmed. 

..............................................
  BJ McMahon
  Deputy President
CATCHWORDS
COMPENSATION – claim for permanent impairment – injury as a result of fall at work – lower back pain – improvement since time of accident – ability to carry out work duties – less than 15% whole person impairment.

Safety, Rehabilitation and Compensation Act 1988 – s 24

REASONS FOR DECISION

21 November 2000                    Mr BJ McMahon (Deputy President)       

1. On 29 November 1998 the Applicant suffered an injury to his lower back in compensable circumstances. He now seeks compensation, alleging permanent impairment under section 24 of the Safety, Rehabilitation and Compensation Act 1988. That section provides that the degree of permanent impairment is to be expressed as a percentage determined under the provisions of the approved guide. If the percentage is less than 10% then, pursuant to subsection (7), compensation is not payable.

2. The relevant table of the approved guide dealing with impairment to Mr Goss' lumbar spine is 9.6.  It prescribes deemed impairment percentages to correspond with described physiological conditions.  A zero level of impairment exists if there are x-ray changes only.  A 5% impairment is established if the Applicant shows minor restrictions of movement.  For a loss of less than half normal range of movement, a permanent impairment percentage of 10 is prescribed.  A percentage of 15 occurs where there is loss of half normal range of movement.  No higher percentages are in issue in these proceedings.

3. The Applicant, now aged 39, is employed by National Rail Corporation Limited as a locomotive driver.  On 29 November 1998 his train was stopped on its way to Junee by an adverse signal.  Mr Goss tried unsuccessfully to make contact with the signalman on his mobile phone.  He then alighted from the driver's cabin, intending to use the signal telephone.  While climbing down from his locomotive he slipped when his foot went onto the ballast.  He slid down onto his low back, landing on the region around his upper buttocks and low back.  At the time he experienced severe pain in the coccyx, but managed to climb back into the cabin after he established contact with the signalman.  The journey continued to Junee where he and his assistant were relieved.

4. They spent the night at a motel.  Mr Goss had a hot shower, took Panadol, had a meal and went to bed where he slept poorly.  The following morning he was still sore in the low back region.  Nevertheless, he and his assistant worked the Perth train back to Sydney.

5. Arriving there, he reported his injury and went home.  The following day he saw his general practitioner, Dr Foltin, who advised x-rays and a CT scan, and prescribed Panadeine Forte.  As this medication had a bad side affect, Mr Goss discontinued it.

6. He was away from work for six weeks.  During the first three or four weeks he was, he said, "in excruciating pain".  He obtained relief only when he was in bed.  He found walking painful.  Physiotherapy was tried unsuccessfully.  He was referred, by his general practitioner, to Dr Stephen, an orthopaedic specialist, early in January 1999.

7. By this time the pain was beginning to subside and ultimately Mr Goss returned to work.  He sought assistance, however, in some of the heavier aspects of train driving.  He arranged for his assistant to attend to fuelling the engine, topping the water, coupling, and putting chocks under wheels.  However, after about three or four months Mr Goss found that he was able himself to carry out these tasks. 

8. He cut down on some of his domestic duties but managed to continue to mow the lawn and do light gardening jobs.  It is important to note that Mr Goss is evidently transparently honest and is not prone to exaggeration.  With characteristic candour he agreed that he can now do a lot more work than he could two years ago, immediately after the injury.

9. He still feels some discomfort, however.  Rather than bend over, he would prefer to squat.  He has no problem in reaching up but suffers a certain amount of discomfort on twisting.  This is apparent while driving the train when there is a lateral swaying movement at high speed.

10. He used to play cricket and touch football in facilities provided by his employer.  For lack of support these are now no longer available.  Mr Goss said, however, that he did not feel that he would be up to resuming those sports.  He is of course 39 years of age and is a heavily built man.  He continues to swim.

11. He performs all his full normal duties, driving freight trains north to Taree, south to Junee and west to Parkes.  If he is affected by the lateral movement he said that he simply gets up and walks around the driver's cabin.  He enjoys his job, saying it is "the best job in the world".  He also takes advantage of any opportunity to earn overtime. 

12. Mr Goss' case depends almost entirely upon a report by Dr Searle on 29 June 1999.  He was commissioned by the Applicant's solicitors to examine him and to report in the context of these proceedings.  His conclusion was that Mr Goss had a 15% whole person impairment and gave the following as his opinion (T30 p51):

    "The fall at work on 29/11/98 caused the protrusion of the L4-5 disc and probably also the bulge at L5-S1.  The ongoing symptoms from these injuries are now permanent and cause a moderately severe degree of disability.
    Because of these injuries he is permanently unfit for work which requires prolonged sitting or prolonged standing, lifting or repeated bending, regularly travelling moderate to long distances, or working vibrating machinery.
    With regard to prognosis there will probably be no change in this condition for some time but the symptoms and disability may gradually increase later in life as degenerative changes supervene at the injured levels and then progress steadily.  Treatment will continue to be conservative, and current treatment costs will continue."

1. It is clear that Dr Searle's opinion is based upon the presumed existence of a protrusion and of a bulge.  Mr Goss was referred to radiologists for both a plain x-ray and a CT scan.  The x-ray report was as follows (Exhibit A):

   "There is a slight scoliosis convex to the left.  Lumbar disc spaces were well preserved.  No pars interarticularis defects were seen.  No abnormality seen in the S1 joints.  No significant bony lesion could be detected.  No traumatic lesion could be identified."

1. The report of the CT scan was as follows (Exhibit B):

   "Clinical history:  Low back ache.
   Angled axial scans are performed from lower T12 to lower S1 levels.
   There is no disc protrusion from L1 to L5/S1 levels.
   The bony spinal canal and thecal sac appear normal.  The neural foramina and the exiting nerve roots appear normal.  The facet joints also appear normal.
   There is some ligamentum flavum hypertrophy at L4/5 level, with the hypertrophied ligaments causing slight postero-lateral indentation of the thecal sac.
   CONCLUSION

   *       No disc protrusion.  Normal bony spinal canal.

   *Mild L4/5 ligamentum flavum hypertrophy, causing slight indentation of the thecal sac at the posterolateral aspects."

1. Dr Searle disagreed with the radiologist's reading of the CT scan.  In his evidence he said that he had been looking at CT scans all his life and that he had more expertise than radiologists, as he specialised in joints whereas their skill lay in interpreting radiological records of many other parts of the human body.

2. I am unable to accept this assertion by Dr Searle, however confidently it was made.  The actual CT scan films were also viewed both by Dr Stephen and Dr McGill, who agreed with the opinion of Dr Wong, the radiologist.  Dr Stephen, an orthopaedic surgeon (like Dr Searle) and Dr McGill, a rheumatologist, are both consultants equally qualified to interpret scans.  All three specialists agree that there is no disclosed protrusion.

3. There are other reasons why his report should be discounted.  The history he took from Mr Goss was incorrect.  The circumstances of the accident were described in such a manner as to indicate a much more serious fall than Mr Goss in fact experienced.  Dr Searle's observations on giving up cricket and touch football are not qualified by an acknowledgment that facilities for these sports no longer existed.  The conclusion that Mr Goss was permanently unfit for work so alarmed him, when he saw the report, that he immediately arranged to obtain a certificate from his general practitioner to the contrary which was then accepted by his employer.

4. Against the evidence of Dr Searle, there are reports of two examinations by Dr Stephen and one by Dr McGill, a consultant rheumatologist.  Dr Stephen must be regarded as the Applicant's treating specialist as Mr Goss was referred to him by Dr Foltin.  On 11 January 1999 Dr Stephen affirmed that he had seen the x-rays and the CT scan "which I thought were normal.  I did not think the ligamentum flavum was unduly thick".  At that stage Dr Stephen thought it "highly likely" that Mr Goss had sustained some minor low lumbar disc damage but considered that it was only of a temporary nature and that he would recover to such an extent that he could undertake full duties again.

5. After the report of Dr Searle had been received, Mr Goss was again referred to his treating specialist.  On 11 October 1999 Dr Stephen reported (T48)

   "Mr Goss has a mild degree of low lumbar backache with which he is coping well.  He is quite fit enough to continue in his normal activities as a train driver.  There should be no restrictions whatever placed on his work activities.
   I have read Dr Searle's report of 29.6.99 with some mild degree of astonishment.  In my opinion Dr Searle is grossly over estimating Mr Goss's disability and the proof of this particular pudding is in the travelling – Mr Goss is able to cope quite well with journeys of up to 500 kilometres and has no difficulty continuing in his normal job of train driver."

1. Dr Stephen noted at this examination that Mr Goss had a full range of movement.  This was a view shared by Dr McGill at the fourth, and most recent examination, on 8 June 2000.  He noted that Mr Goss still had some lingering symptoms (Exhibit 1 p2):

   "He indicated that his symptoms have been stable over the last six to twelve months.  He feels stiff and sore when getting out of bed in the morning such that has some difficulty getting dressed.  He experiences good and bad days and usually cannot identify any precipitant for the bad days.  When he mows his lawn and washes his car he reliably feels increased pain in the low back."

1. Nevertheless Mr Goss displayed a full range of movements.  Dr McGill reported:

   "He provided a clear history and was fully co-operative.  His movements were normal.  Spinal posture while standing erect was normal.  He demonstrated a full range of back movement in all directions.  Forward flexion was performed such that his fingertips touched the junction between his feet and his ankles anteriorly.  Lateral flexion in each direction, rotation in each direction and lumbar extension were all full."

1. Dr McGill also viewed the CT scan film and "thought the discs appeared normal" although, in Dr McGill's opinion, Mr Goss probably has a "mild lumbar disc lesion accounting for his initial and residual symptoms".  This lesion has not resulted in any restrictions of movement.  In his opinion, Mr Goss was fit for full normal duties.  His opinion coincides with the fact that the Applicant is currently performing full duties and has been doing so for more than a year.

2. Dr McGill also expressed his disagreement with the views of Dr Searle, both as to a reading of the CT scan film and as to the range of movement exhibited by Mr Goss.  As I have said, the weight of medical evidence is against Dr Searle in his conclusion that there is a protrusion.  If there is any room for debate about the radiological results, then the lesion must be so slight as to be unclear. 

3. Mr Goss challenged Dr McGill's findings in one particular.  Dr McGill recorded that the Applicant had touched "the junction between his feet and his ankles anteriorly".  It was Mr Goss' recollection that, at the examination, he could not touch his ankles but touched only the top of his shins.  When asked to account for this apparent inconsistency, Dr McGill said that he kept a pad beside him during the examination and made notes as they went along.  He completed his record when he returned to his desk.  The note that he made is quite specific as to the area touched by Mr Goss.  It is not given in any general terms.  In my view a contemporary note made by a trained observer is to be preferred to the recollection of the Applicant, however genuine and honest that recollection may be.  Although Dr McGill quite reasonably and in a balanced manner admitted the possibility of a mistake in general terms (as who would not make such an admission), there can be no mistake about such specific details recorded at the relevant time and almost immediately transferred to a permanent record.  Furthermore, it was Dr McGill's evidence that, had he observed any impaired ability, he would have administered a Schober's test, which he described as an objective test designed to show how much movement exists in a lumbar spine.  The fact that no Schober's test was carried out was not crucial to his recollection however.  His notes were clear and quite specific.

4. It was Dr McGill's conclusion that Mr Goss has zero whole person impairment as he demonstrated a full range of movement.  Whether one accepts this or the rather minor restrictions expressed in a general way by Dr Stephen, Mr Goss cannot be said to have any more than minor restrictions of movement.  This is not sufficient to qualify for the statutory limit of permanent impairment.  The medical evidence is not inconsistent with Mr Goss' own evidence.  Although he has residual symptoms he has no, or only minor, restrictions of movement.  Accordingly his claim for compensation must fail.

5. The decision under review is therefore affirmed.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B.J. McMahon (Deputy President).

Signed:         .....................................................................................
  Dominika Rajewski, Associate

Date of Hearing                  14 November 2000
Date of Decision                  21 November 2000
Representative for the Applicant            Ms Rhonda Henderson
Solicitor for the Applicant                         Graham Jones Lawyers
Representative for the Respondent        Mr Angus McInnis
Solicitor for the Respondent                   Barker Gosling Solicitors