Gottschalk and Comcare
[2007] AATA 1799
•25 September 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1799
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2006/68
GENERAL ADMINISTRATIVE DIVISION ) Re RICHARD PATRICK GOTTSCHALK Applicant
And
COMCARE
Respondent
DECISION
Tribunal The Hon R J Groom (Deputy President) Date25 September 2007
PlaceHobart
Decision The decision under review is set aside and the matter remitted to the respondent with the following directions:
(a) the applicant is suffering from a permanent impairment as a result of an injury suffered by him in the course of his employment on 14 September 2002.
(b) the degree of permanent impairment under Table 9.6 of the Guide to the Assessment of the Degree of Permanent Impairment is 10%
(c) the amount of compensation payable to the applicant is to be assessed.
[Sgd R J Groom]
Deputy President
CATCHWORDS
Compensation - Safety, Rehabilitation and Compensation Act 1988 - fall in the course of employment - injury to lumbar region of spine - pre-existing degenerative changes and other medical conditions - poor general physical condition - causes of impairment - Table 9.6 of "Guide to Assessment of the Degree of Permanent Impairment" - meaning of "minor restrictions of movement" - degree of impairment - decision set aside
Safety, Rehabilitation & Compensation Act 1988: s4, s24, s67(9)
Guide to the Assessment of the Degree of Permanent Impairment
Re Amorebieta and Comcare (1994) 35 ALD 603
Australian Telecommunications Commission v Barker (1990) 12 AAR 490
REASONS FOR DECISION
24 September 2007 The Hon R J Groom (Deputy President) Background
1. On 14 September 2002 the applicant suffered a back injury in a fall in the course of his employment with the Department of Defence.
2. The applicant lodged a claim for compensation under the Safety, Rehabilitation & Compensation Act 1988 (“the Act") on 12 December 2002. On 11 March 2003 the respondent accepted liability for incapacity arising from the "lumbar sprain" suffered in the fall. In July 2003 the respondent ceased accepting liability to make further compensation payments.
3. In November 2005 the applicant lodged a "Permanent Injury Compensation Claim" for "chronic low back pain". That claim was rejected on 10 February 2006. That determination was based on the medical opinion of Mr J Mander that the condition was not permanent and was likely to improve with further treatment (see T21 page 84). The applicant then requested a reconsideration of that determination. On 11 May 2006 a reconsideration decision was issued affirming the earlier determination. It is that reconsideration decision which is now being reviewed by this Tribunal.
4. The hearing of the review application was held in Hobart on 31 May, 1 June and 24 July 2007. Mr B Hilliard appeared for the applicant and Mr B Morgan for the respondent.
5. The applicant, Dr C J Kenna and Dr T C Stewart gave evidence at the hearing. A substantial number of documentary exhibits were tendered and received into evidence including the "T Documents" lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 as well as several medical reports and various medical records.
The Issues
6. The principal questions to be determined by the Tribunal are as follows:
a) Does the applicant have a permanent impairment as a result of the fall at work on 14 September 2002?
(b) If so what is the degree of that impairment?
In considering these principal questions several specific issues arose during the course of the hearing. They are as follows:
1. Did the applicant injure his back in a fall on 14 September 2002 in the course of his employment?
2. Does the applicant continue to suffer from a lumbar impairment?
3. If so, was the cause of that lumbar impairment the accident on 14 September 2002 or are there other causes?
4. Is the impairment permanent?
5. What is the degree of permanent impairment resulting from the accident?
I will refer to the relevant legislation and then consider each of those five issues.
The Legislation
7. The Act provides that when an injury to an employee results in a permanent impairment Comcare is liable to pay lump sum compensation to the employee in respect of that injury.
8. Impairment is defined in section 4 of the Act as meaning:
"... 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"
In the same section "permanent" means "likely to continue indefinitely".
9. Section 24 of the Act relevantly provides as follows:
(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.
10. As indicated s.24(5) provides that the degree of permanent impairment shall be determined under the provisions of the "approved guide". Under s.4 of the Act "approved guide" means:
"(a) the document, prepared by Comcare in accordance with section 28 under the title “Guide to the Assessment of the Degree of Permanent Impairment”, that has been approved by the Minister and is for the time being in force; and
(b) if an instrument varying the document has been approved by the Minister— that document as so varied".
11. The approved guide ("the guide") is prepared by Comcare pursuant to s.28 of the Act which provides as follows:
"(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.
(2) Comcare may, from time to time, by instrument in writing, vary or revoke the approved Guide.
(3) A Guide prepared under subsection (1), and a variation or revocation under subsection (2) of such a Guide, must be approved by the Minister".
A claim under s.24 of the Act received before 28 February 2006 is to be determined under the provisions of the First Edition of the Guide (see Introduction to the Second Edition of the Guide Page IV).
12. For the particular application now being considered by the Tribunal the relevant table in the Guide is Table 9.6 which applies to claims for impairment of the function of the spine. That table relevantly is as follows:
% DESCRIPTION OF LEVEL OF IMPAIRMENT CERVICAL SPINE THORACO-LUMBAR SPINE 0 X-ray changes only X-ray changes only 5 Minor restrictions of movement Minor restrictions of movement
OR
Crush fracture - compression 25-50 percent10 Loss of half normal range of movement Loss of less than half normal range of movement
OR
Crush fracture - compression greater than 50 percent15 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 Did the Applicant Injure His Back in a fall on 14 September 2002 in the Course of his Employment?
13. The applicant had originally submitted a claim for rehabilitation and compensation dated 12 December 2002 in respect to "low back pain". He attributed his pain to the accident which occurred on 14 September 2002. At the time of the accident the applicant was working in the kitchen at the Pontville Military Range in Tasmania. He was sweeping at the rear of the kitchen when he fell backwards into a deep unprotected drain. That is a summary of the applicant's account of the accident which the Tribunal accepts as reliable.
14. By letter dated 11 March 2003 Comcare accepted liability for the injury suffered in the fall and agreed to pay compensation to the applicant for a "lumbar sprain". Comcare subsequently paid medical expenses and compensation to the applicant for that injury.
15. The attitude of the respondent to the above issue was to a degree clarified by Mr Morgan at the hearing on 24 July 2007. He then said "what is not in dispute is that he suffered a work-related injury". The Tribunal interprets that statement to mean that the respondent does not dispute that the applicant did suffer an injury on 14 September 2002 when he fell in the course of his employment. That was, of course, the reason the respondent agreed to pay compensation to the applicant and for his medical and other expenses. Mr Morgan did not concede the precise nature of the injury nor that the applicant suffered a permanent impairment as a result of that injury.
16. In this case the respondent has admitted liability and paid compensation in relation to a "lumbar sprain" arising from the fall. There is a substantial amount of evidence before the Tribunal establishing that the applicant did indeed suffer an injury to his back as a result of the heavy fall at work. At this stage in its reasoning the Tribunal is not considering the precise nature of that back injury nor whether there may have been other additional factors causing impairment to the applicant's back.
17. After considering the abovementioned factors and taking into account all of the relevant evidence before it the Tribunal concludes that the applicant did injure his back in the fall on 14 September 2002.
Does the Applicant Continue to Suffer from a Lumbar Impairment?
18. The definition of "impairment" in the Act is set out in paragraph 9 above.
19. The applicant completed a witness statement dated 25 May 2007. He affirmed its truthfulness and accuracy when giving oral evidence. In it he describes his symptoms as follows:
"My current symptoms are a thumping pain at the base of my back that is continuous all day. When I wake of a morning I would rate my pain scale about 2 or a 3 and by the end of the day it is about a 7" (para 25 of the applicant's witness statement)
20. In cross-examination by Mr Morgan the applicant described the pain in his lower back as "thumping" and said it was situated "two inches by three inches above the belt, two below, three up" (transcript page 41). He also said "this pain that I have got now did not appear till the night of 14 September 2002, this thumping lower back pain" (transcript page 226).
21. It was agreed by a number of the medical practitioners and physiotherapists who have offered opinions that the applicant continues to suffer chronic lumbar pain.
22. Dr Stewart, consultant occupational physician, engaged on behalf of the respondent, in answering a number of questions put to him in cross-examination acknowledged that the applicant was suffering chronic pain in the lower back (see transcript pages 189 and 190).
23. Mr J Mander, a consultant orthopaedic surgeon, said in his report of 20 January 2006:
"... my original diagnosis of a chronic musculoligamentous lumbar strain remains my diagnosis".
24. Dr Kenna, a musculoskeletal and occupational physician engaged by the applicant, said in his report of 22 February 2007:
"I considered also that the condition has essentially stabilised and therefore he had developed a permanent chronic lumbar disability".
25. Ms J Wilkinson, a physiotherapist, said in her letter of 15 January 2007, after referring to the fact that Mr Gottschalk had attended a hydrotherapy and supervised back strengthening gym program for six months that:
"... all movements of the lumbar spine were significantly reduced ..."
AND
"... I feel that this condition is not likely to improve greatly".
26. At this stage of these reasons the Tribunal is not considering the causes of the impairment, whether any impairment is permanent or if the impairment might be improved by further rehabilitation but simply whether or not the applicant continues to suffer some form of lumbar impairment.
27. The Tribunal is satisfied on all of the evidence that the applicant does continue to suffer a lumbar impairment and it so finds.
Was the fall the Cause of the Continuing Lumbar Impairment or are there Other Causes?
28. Various possible causes of the applicant's lumbar impairment were raised in the course of the hearing. These included the possible existence of normal degenerative changes in the spine, the effect of his lack of physical fitness, poor muscle tone and posture and possibly also the effect of other medical conditions suffered by the applicant.
29. Apart from the fall in 2002 there is no persuasive evidence of any other significant trauma suffered by the applicant which may have caused his impairment. There is evidence that the applicant experienced some back problems prior to the 2002 fall.
30. The clinical notes of the applicant's general practitioner, Dr R Kingston, disclosed that he had back problems prior to the fall. In Dr Kingston's notes of 20 March 2002, when he saw Mr Gottschalk, he recorded the following:
"Think I might have a back problem ... low back pain and around C7"
31. In the applicant's witness statement at paragraph 5 he said:
"I first noted this unusual pain on the night of the accident 14 September 2002 but put the pain down to the fact that I had been working 9 days without a break and assumed that the following week without working would rectify the situation. When this did not eventuate I consulted Dr Ross Kingston my General Practitioner on approximately 24 September 2002. I presented again on the 30 September 2002 with neck pain and was trialled with Celebrex 100mg and anti inflammatory tablets. I again consulted Dr Kingston on the 11 November 2002 and the same doctor who again diagnosed the pain and increased the Celebrex tablets to 200mg".
32. It is noted that when the applicant saw Dr Kingston on 24 September 2002, some 10 days after the fall, no reference was made to the fall in Dr Kingston's contemporaneous clinical notes. In his later report of 15 May 2003 (T6) Dr Kingston said:
"... he (Mr Gottschalk) says he told me of a fall he had had at work, although this was not recorded in his notes".
33. There are a number of references to neck pain in Dr Kingston's notes recorded prior to the fall at work in 2002.
34. On 11 November 2002 Dr Kingston's notes mention that Mr Gottschalk went to Sydney for a reunion and "suffered (with) back and neck".
35. The applicant saw Dr E Haas on 7 and 8 February 2003 as Dr Kingston was on leave. Dr Haas recorded in the clinical notes on 7 February 2003:
"... has had back pain in LS spine since a fall down a ditch in 9/02 ..."
On 8 February 2003 Dr Haas noted:
"... getting intermittent low back pain also radiating into upper back since his accident ..."
36. On 17 March 2003 Dr Kingston noted:
"... thumping in low back and neck ..."
There is a reference on the same page of the clinical notes to the fall on 14 September 2002.
37. In Dr Kingston's clinical notes of 30 April 2003 there is a further reference to the fall and a compensation claim and also a comment in quotes indicating it was made by Mr Gottschalk as follows:
"At the time in September he didn't put the fall and the back pain together".
38. As to the suggestion that the applicant may have had a pre-existing back problem in March 2002 Dr Kenna said:
"... everybody has had back problems from time to time. We just need to know whether it was a back discomfort he picked up and he was fine after that, or from there he needed to enter rehab and have, you know, kind of - lots of physio, medications, investigations. Just having discomfort of back pain, we just don't know enough as to whether that's - therefore it's very tenuous to draw between that something that traumatically happens six months later" (Transcript page 88)
39. Mr Morgan put it to the applicant in cross-examination that he had suffered previous back pain or neck pain. The applicant responded :
"The truthful answer to that is, and I'll take a polygraph on this, if you like. I'm quite prepared to undergo a lie test. I did not have that thumping pain till the night after the fall on September 2002. Not the thumping pain". (Transcript page 42)
40. On the issue of the pre-existing neck pain the applicant agrees that he suffered neck pain in February 2001. He was asked by Mr Morgan whether he continued to suffer from it and responded:
"Not all the time unless I was in front of a computer". (Transcript page 20)
41. Quite apart from the abovementioned evidence there were references in the course of the evidence and in medical reports and records of the applicant experiencing pain in the neck and shoulder and pain in different regions of the spine including the lower lumbar, upper lumbar, thoracic and cervical regions.
42. An x-ray by Dr Michael Wilkinson of 7 February 2003 reported as follows:
"LUMBOSACRAL SPINE
There is no significant alignment abnormality. There is no evidence of injury. Apart from minor endplate irregularities, and small osteophytes anteriorly, the vertebral bodies are normal. There is little significant disc space narrowing or other evidence of degenerative change. The sacroiliac joints are normal. There is no destructive process". (T3 page 4)
43. Dr Kenna was asked by Mr Morgan about the possibility that degenerative changes were present.
"There are indications overall with this man, particularly with the additional history, that his spine, in the collective sense - lumbar, thoracic, cervical - was beginning to show the effects or was probably beginning to show the effects of degenerative changes? --- It would be certainly becoming symptomatic" (Transcript page 93)
Later in his evidence Dr Kenna said:
"So he was, what, probably 57 at the time. So you would expect to see some degenerative changes, and he's certainly got some of those". (Transcript page 103)
44. Dr G Farr, consultant orthopaedic surgeon, said in his report of 12 June 2003:
"There is a probability that he has aggravated degenerative disc changes in his cervical and thoracic spine and there is no certainty that these symptoms will completely resolve". (T8 page 28)
45. Mr Mander in his report of 28 January 2006 stated as follows:
"In the absence of any further investigations, one must assume that the impairment is entirely solely from work-related factors. It would have been preferable to be able to identify any pre-existing degenerative conditions but this has not been possible".
46. Although ordinary x-rays had been taken of the applicant's spine there are no MRI or CT scans. The applicant explained in evidence that he had suffered serious discomfort when, as he understood, he had previously had an MRI or a CT scan. he therefore declined to undertake either. In cross-examination he said:
"Well, I don't know what a CT scan is and I always thought a CT and an MRI was the same thing, because CT, I think is a cathode tube and a tube, to me, is something you slide in and I assumed it was the same as an MRI". (Transcript page 23)
47. Dr Stewart said in evidence:
"But the concept of doing a CT scan would certainly give more information in respect to the degree of degenerative change that probably exists in the vertebral column. Mr Gottschalk is 61, and he would undoubtedly have some degenerative changes there in the vertebral column". (Transcript page 199)
48. Dr Kenna said of MRI's and CT's:
"... well this is a problem where we are medically with backs. We may get an x-ray - I've got lots of patients who have got beautiful x-rays of CTs, plain films are normal, MRI is normal, yet they are incapacitated with back pain. We still really don't often know what the cause of the problem is ...". (Transcript page 83)
And he added:
"So while the CT is useful for confirming the presence of a disc bulge or neurological problem or cauda equina or spinal calcinosis, it's not good at emplaining why they've got pain when the test is negative".
Dr Kenna was later asked whether a CT scan would make any difference to his diagnosis. He said:
"No, because it doesn't change function, and impairment assessment is about function. It's about the level of - the range of movement". (Transcript page 173)
49. There is evidence before the Tribunal that suggests the lumbar impairment may be due in part to his lack of physical fitness, muscle tone and poor posture.
50. Ms E Butler, physiotherapist, said in a letter to Dr Kingston of 1 April 2003:
"I believe Richard sustained spinal injuries in the fall at work. I feel this is being perpetuated partly by his poor posture, the latter may have worsened with the pain. His postural pattern is that of hyperextended knees, posterior pelvic tilt, poor abdominal tone, kyphotic thoracic and protruded cervical spine. He is stiff and sore to mobilisation especially in T4-6 and T11-L2 area, his pectorals are exceptionally tight and scapular retractors weak.
I have now used the Real Time Ultrasound scanner to check the function of transversus abdominus. This is very poor and needs a lot of work, as does his general abdominal tone". (R4)
51. Dr Stewart said in his medical report at page 4:
"Mr Gottschalk's general examination was characterised by a complete lack of physical fitness, poor posture and a body mass index of 28. It is not surprising that medical practitioners have recommended to Mr Gottschalk that he participates in an exercise fitness program.
In my opinion it is the lack of physical condition more than anything else that is impacting on Mr Gottschalk".
52. The Tribunal must now consider whether pre-existing degenerative changes and the applicant's poor physical condition and posture are possible causes of his impairment. There is also the question of the impact of other medical conditions from which the applicant suffered before and/or after the accident in 2002. These include diabetes, hearing loss, tinnitus, a number of hernias, chest pain, blood pressure, stress, leg cramps, dizziness etc. He completed two questionnaires in February 2001 and February 2002 in relation to a claim for benefits under the Veterans' Entitlements Act for hearing loss. There are some inconsistencies in the answers given in the questionnaires. The answers also indicate that prior to the accident in September 2002 the applicant already had difficulty in performing certain physical activities.
53. After carefully considering the totality of the evidence including the various medical opinions the Tribunal concludes that prior to the fall in September 2002 there were some minor degenerative changes present in the applicant's spine. Those changes, and also the applicant's lack of physical fitness and muscle tone as well as the other various medical conditions from which he suffers have contributed to some restriction in physical bodily movement.
54. It is important however to recognise that the principal issue to be determined in this application is whether the applicant's fall itself caused a sufficient permanent loss of movement in the applicant's thoracolumbar spine to entitle him to lump sum compensation under section 24 of the Act. The critical and very specific question therefore is what loss of movement of the applicant's thoracolumbar spine resulted from his fall in 2002?
55. The evidence establishes to the standard required that the applicant had a very heavy fall at work in September 2002 and that he suffered a distinct injury to the lumbar spine as a direct result of that fall. The Tribunal accepts the applicant's evidence that the "thumping pain" in the lumbar region of the spine was unlike any other pain he had suffered. I note that Dr Stewart agreed that the fall itself has caused a "substantial" loss of movement while Dr Kenna expressed the opinion that the loss of movement of the spine caused by the fall equated to 10% of "whole body impairment". Although other factors may have played a minor role in the restriction of spinal movement the evidence establishes that the major cause was the injury suffered in the fall.
Is the Applicant's Impairment Permanent?
56. It is necessary to have regard to matters set out in section 24(2) of the Act in order to determine whether the applicant's impairment is permanent. It is only when an impairment is permanent and is equivalent to at least 10% "whole person impairment" that there is an entitlement to lump sum compensation.
57. As has been mentioned the respondent did accept liability for weekly compensation and medical expenses arising out of the fall in 2002. The claim for permanent impairment was rejected on the 10 February 2006. A letter from Mr D Santi of the Claims Management Centre at Comcare stated in part as follows:
"As I advised in my previous letter, for compensation to be considered the impairment must be permanent
Sub-section 24(2) of the Act states that for the purposes of determining whether an impairment is permanent, this office shall 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) all other relevant matters"
You were assessed by Dr Mander on 20 January 2006. In his report, he states,
'As far as treatment is concerned, I consider this has really not been sufficient. Were he to have undertaken the treatment as recommended when last assessed, I consider he would have been much improved. I restate my recommendations that he should undertake a minimum of three months supervised back exercise programme in the gymnasium, but more importantly he should attend hydrotherapy exercises at least twice per week and, if necessary, as it was helpful, this should be extended up to six months'.
Dr Mander also states,
'Currently, unless Mr Gottschalk has an opportunity for the treatment as recommended by more than one assessor, I would agree with the permanent impairment assessment of Dr Kenna. However, I qualify that, as I consider were he to undertake a proper period of therapy, it could well be that his impairment could re reconsidered at a much lower level, if not completely excluded'.
Based on the specialist opinion from Dr Mander, I consider there is still a likelihood that your condition will improve with further treatment.
Therefore, having regard to the evidence presented and the provisions of sub-section 24(2) of the Safety, Rehabilitation and Compensation Act 1988, I have determined that you are not eligible for a payment for non-economic loss under section 27 of thye Act at this time.
Your rights relating to my decision are explained on the enclosed sheet.
If at a later date your condition has stabilised and all active treatment is completed, you may lodge a new claim for permanent impairment". (T21)
58. In the applicant's witness statement paragraphs 11 to 23 he explains the steps he has taken to improve his back condition through hydrotherapy and supervised back strengthening:
"11. I attended Dr Eberhand Haas on the 7th and 8th February 2003, as Dr Kingston was on holidays. Dr Eberhard Haas confirmed soft tissue damage and ordered an x-ray. He recommended physiotherapy for at least 10 to 15 sessions.
12. I was referred to Elizabeth Butler at Northside Physiotherapy for treatment which comprised of real time ultrasound, hydrotherapy and an exercise program.
13. Dr Kingston provided a medical certificate on the 26 March 2003 verifying I was unfit for work from 28 January 2003 to 3 April 2003.
14. Dr Kingston completed a medical certificate on the 18 March 2003 certifying I was unfit for work for an indeterminate period. He provided a further medical certificate from the 3 April 2003 to 3 May 2003.
15. Dr Kingston advised Comcare on the 15 May and the 30 June 2003 that I was totally incapacitated for work until a review on the 31 July 2003.
16. I was reviewed by Dr Farr for Comcare on the 11 June 2003.
17/ I began with Friends Health & Fitness in approximately January 2004 on a three month membership. This expired approximately the 29th Marchw2004. During this time I would undertake exercises and gym work.
18. I continued to attend Northside Physio with Liz Butler for Physio and hydrotherapy until approximately 14th July 2005.
19. I contacted Body Tech, Physio Clinic about undertaking a physiotherapy program as recommended by Dr Mander, approximately the 30 March 2006. My first attendance was with Jill Wilkinson on the 7 April 2006 for the recommended six month period until the 5 October 2006. During this time I attended twice a week for hydrotherapy and a supervised back strengthening gym program were I worked very hard.
20. My sessions of physiotherapy begin with around 10 minutes on the treadmill and then around 15 minutes on the bikes. I then have about 15 minutes of ball sports. I then go into the hydro pool for around half an hour to 40 minutes. This program sometimes varied considering how I was feeling.
21. I returned to my General Practitioner, Dr Kingston on the 22 December 2006 and he certified me totally incapacitated for work and I continued to require a supervised hydrotherapy and strengthening physiotherapy sessions twice a week for a further six months.
22. Comcare has approved my further treatment with Bodytech Physio from the 8 February 2007 for a twice weekly physiotherapy and supervised hydrotherapy session up until the 31 July 2007. I am advised that the current cost per session is $117.50 or $235 per week.
23. I find that my treatment does assist with my symptoms. I complete a series of stretches for my quads and hamstrings that assist in easing any pain when I walk. The supervised hydrotherapy also provides a weightless exercise program. I walk up and down the pool bring my hands together in a clapping motion. This builds strength in my lower back. I also complete the stretches in the pool. This provides short term relief only and the pain returns".
59. In his report of 28 January 2006 Mr Mander recommended as follows:
"As far as treatment is concerned, I consider this has really not been sufficient. Were he to have undertaken the treatment as recommended when last assessed, I consider he would have been much improved. I restate my recommendations that he should undertake a minimum of three months supervised back exercise program in the gymnasium, but more importantly he should attend hydrotherapy exercises at least twice per week and, if necessary, as it was helpful, this should be extended up to six months". (T20)
60. The Tribunal is satisfied that the applicant did undertake six months of hydrotherapy and back strengthening exercises twice a week from the 7 April 2006 until the 5 October 2006 mainly supervised by Mrs Wilkinson. Very few appointed attendances were not kept by the applicant. I am satisfied he made a reasonable effort to undertake the exercises and improve his fitness. His back problems made it difficult for him to do some exercise particularly exercises on the bike and also on the "walking machine".
61. At an earlier point in time physiotherapist Ms E Butler was somewhat critical of the applicant's efforts. In her letter of 1 April 2003 to Dr Kingston she said:
"Although Richard mostly does his exercises, I would like to see his treatment be a little more active and demanding. Once his traversus abdominus is functioning more normally, would you agree with some hydrotherapy sessions. Richard is an "ex-swimmer" and he may relate to this very positively". (R4)
62. In Dr Stewart's report of 22 November 2006 he expressed the view that the rehabilitative treatment had not been satisfactory. He said:
"Mr Gottschalk stated that the hydrotherapy sessions led to an increase in the pain and were not beneficial in any way. He appears not to have had a closely-supervised program that would have looked at tightening the abdominal muscles and improving the tone and strength in those muscles. Body core restrengthening has not been a success in terms of outcomes.
In my opinion any aspect of the injury that occurred on 14/9/02 is amenable to activity only. Stretching the abdominal, low back, groin and hip muscles together with a low weight high repetition restrengthening program would be an appropriate direction in which to head. This should be performed under the guidance of an exercise physiologist who would be able to monitor the program in a realistic manner.
This would be focused on helping Mr Gottschalk cope better than he is at present. Many people who experience chronic low-grade pain that varies on an intermittent basis find activity to be of benefit. I am not convinced that Mr Gottschalk has given this 100% effort, and without total commitment he is unlikely to succeed".
63. Physiotherapist Ms Wilkinson said in her letter of 15 January 2007:
"At the end of the program (5/10/06) there was a marked increase in his fitness levels. There was still significant loss of movement of his lumbar spine - with very little change and only slight increase in length of hamstrings and quadriceps. His core stability had improved".
64. Dr Kenna said in oral evidence that he believed the six months of physiotherapy and exercises was "about right". He said "wouldn't go past that". He added:
"... I'm always concerned with people doing a bit too much gym work, particularly as they are getting on. I've seen a lot of people who have injured themselves in gyms, so - in the rehabilitation program so, I'm fairly cautious about extended programs at gyms".
65. After carefully considering the evidence before it the Tribunal concludes that the applicant has indeed undertaken all reasonable rehabilitative treatment for his impairment. The respondent had rejected the claim on the basis of the report from Mr Mander which recommended six months rehabilitation. He has now carried out such a program under proper supervision. The Tribunal accepts Dr Kenna's view that nothing further could usefully be achieved by more hydrotherapy and other exercises. It finds that any further treatment will not improve his condition.
66. The fall occurred in September 2002. That is some five years ago. Considerable efforts have since been made by the applicant and those responsible for treating him to overcome or reduce his lumbar problems. His severe pain and impairment persists. I'm satisfied that it is reasonable to conclude that the applicant's impairment is now permanent and I so find.
What is the Degree of Impairment Resulting from the fall?
67. The Guide is based on the concept of "whole person impairment". This provides compensation for the permanent impairment of any body part, system or function to the extent to which it permanently impairs the employee as a whole person.
68. It is clear from the wording in Table 9.6 of the Guide that the word "movement" in the Table means movement of either the cervical spine or the thoracolumbar spine. It is a reference to spinal movement rather than, for example, walking or turning around. This is clear from the inclusion of terms such as "loss of less than half normal range of movement" or "loss of more than half normal range of movement". The concept of "activity of daily living" is not relevant to Table 9.6. That concept arises in several tables where it is essential to a proper determination of the level of impairment (see for examples Table 4 and 5).
69. It is agreed by the parties that the only table relevant to the present application is Table 9.6. If there were standing or walking difficulties arising from the injury then Table 9.5 would be relevant. If a spinal injury causes loss of use of upper limbs then Table 9.4 should be the applicable table. There can be a combination of more than one table in some circumstances. In the present case Table 9.6 is the only applicable table.
70. It was suggested at the hearing that I had the opportunity to observe the applicant in the witness box and when walking and sitting in the hearing room and that I could therefore use my own observations to assist in assessing the degree of impairment. I consider that what I observed concerning the applicant's movement would not assist me in any way to make a judgment and therefore my own observations will not be taken into account in any sense. I note that the Guide states that "... whole person impairment is a medical appraisal". It is drawn from the American Medical Association's Guides. The Tribunal will be relying on the views of medical practitioners and physiotherapists whose expert opinions are in evidence before it.
71. In his report of 13 September 2004, Dr Kenna who had undertaken a careful clinical examination of the applicant made the following comments:
"CLINICAL COMMENTS
...
My assessment of this individual is that most likely he sustained discogenic injury to the lower back which explains his central pain and also bilateral symmetrical referral. I presume that he has a fairly substantial disc bulge at the L4/5 and L5/S1 levels associated with his present physical findings. I would accept therefore the nature of the injury could well have been the substantial causative factor also aggravating some underlying and pre-existent degenerative disc disease. Therefore the main findings are as follows:
1.Central lower lumbar dysfunction presenting as pain, muscle spasm and restricted mobility secondary to dysfunction of the mobile segment, most likely discogenic in nature.
2.Clearly therefore he has aggravated underlying and pre-existing degenerative change but also may well have caused discogenic injury. He has ongoing lower back pain with associated decreased range of movement and persistent symptoms. The prognosis in view of the fact there has not been a substantial improvement over the last two years I believe is one of ongoing related symptomatology.
3.I would accept that his current disabilities were caused or contributed to by the fall per se on 14th September 2002.
4.I would consider he has a 10% level of disability pertaining to his lower back.
5.In view of the nature of the clinical presentation I would consider there certainly is an impact with regards to his ability to re-enter the workforce and he is now limited to sedentary type activities. He certainly could not perform any repetitious labouring or physical job per se.
6.I would accept that his current work restrictions still relate to the incident of 14 September 2002 and that there are no other non-work related limiting factors.
7.At this point in time he only has a capacity to re-enter the workforce on a part-time basis pertaining light, sedentary or clerical duties where he can sit or stand as required and take breaks as necessary.
8.I do not believe he would benefit from a further course of therapy but should be encouraged from the point of view of being proactive with regards to an exercise program with swimming and walking and doing a series of regular stretching exercises.
9.I do not believe there is a place now for any further conservative passive therapy where the patient or worker is not taking responsibility for his own rehabilitation".
72. Dr Stewart said in his medical report of 22 November 2006:
"Mr Gottschalk has ongoing impairment associated with the pain that he experiences in his back. He has been advised to participate in activity but has difficulty doing so. Mr Gottschalk has experienced symptoms for the past four years that vary in intensity and he has both good and bad days. This is consistent with someone who is suffering with non-specific or mechanical back pain. There appeared to be a degree of embellishment of some of the symptoms that he reports.
Mr Gottschalk's general examination was characterised by a complete lack of physical fitness, poor posture and a body mass index of 28. It is not surprising that medical practitioners have recommended to Mr Gottschalk that he participates in an exercise fitness program.
In my opinion it is the lack of physical condition more than anything else that is impacting upon Mr Gottschalk.
In answer to your specific questions:
(i)Does Mr Gottschalk have a permanent impairment under Table 9.6 due to the injury he suffered when he fell into the drainage ditch on 14/09/02:
Mr Gottschalk has a loss of less than half the normal range of movement in his vertebral column. No doubt that could be improved with stretching. This would qualify as 10% impairment.
(ii)If he does, what is the description of the level of his impairment? If the impairment is also due to any pre-existing injury or his poor posture and muscle tone please specify, as best as you are able, the proportion of the impairment due to the injury on 14/9/2002:
The impairment is in the lumbar region. The impairment associated with the fall of 14/9/2002 would be 50% of that 10%.
(iii)Could you please advise whether in your opinion the recommended treatment including a series of hydrotherapy sessions has been beneficial and, if so, in what way:
Mr Gottschalk stated that the hydrotherapy sessions led to an increase in the pain and were not beneficial in any way. He appears not to have had a closely-supervised program that would have looked at tightening the abdominal muscles and improving the tone and strength in those muscles. Body core restrengthening has not been a success in terms of outcomes.
(iv)Is there any treatment you would recommend as beneficial in treating the injury suffered on 14/09/2002:
In my opinion any aspect of the injury that occurred on 14/09/2002 is amenable to activity only. Stretching the abdominal, low back, groin and hip muscles together with a low weight high repetition restrengthening program would be an appropriate direction in which to head. This should be performed under the guidance of an exercise physiologist who would be able to monitor the program in a realistic manner.
(v)If so, please describe how this would be of benefit to Mr Gottschalk and whether it would have any impact on any level of impairment he currently suffers as a result of the injury on 14/09/2002:
This would be focused on helping Mr Gottschalk cope better than he is at present. Many people who experience chronic low-grade pain that varies on an intermittent basis find activity to be of benefit. I am not convinced that Mr Gottschalk has given this 100% effort, and without total commitment he is unlikely to succeed.
(vi)Is there any treatment Mr Gottschalk is currently undergoing which you believe is not beneficial for his injuries suffered on 14/09/202:
Mr Gottschalk is having no treatment at present apart from taking analgesics on an intermitted basis, perhaps four pain-killers on any one day but not every day.
In Summary:
Mr Gottschalk has an impairment of 5% that can be attributed to the September 2002 injury".
73. In his report of 22 February 2007 Dr Kenna said as follows:
""Subsequent to this I note forwarded to me on 10th January 2007 was a letter from Tim Stewart, Occupational Physician, dated 22nd November 2006, in which he considers also that he has incurred 10% level of impairment under the Comcare Guidelines, but that 50% of this is due to non-work related factors due to his poor physical conditioning; that is, the impairment in part is due to pre-existent conditions of poor posture and muscle tone. Dr Stewart noted at the time that he had a complete lack of physical fitness and poor posture and a Body Mass Index of 28. It was his considered view that there was therefore impairment of 5% which could be attributed to the incident of September 2002.
That being stated, it needs to be noted that I have now reviewed the individual for some time of time, but I would consider that his overall loss of mobility has been consistent throughout. There may be some other extenuating factors as noted but I do not believe this has overall contributed substantially to his overall level of impairment. In fact, his conditioning has deteriorated over time due to his inability to exercise; therefore his weight has gone up (I note the Body Mass Index is 28) and his muscle tone has deteriorated. He has developed chronic pain. As noted by me he has attempted, for example, to have conservative therapy involving for example hydrotherapy, but unfortunately his conditi9on is aggravated and therefore there is a vicious circle of exacerbation of his ongoing symptoms.
I therefore consider that his current level of fitness, or indeed lack of fitness, is also directly related to his development of chronic pain and therefore his level of impairment of 10% should remain unchanged".
74. In cross-examination Dr Stewart, after stating that he believed the applicant "did not get above the 50% ..." loss of spinal movement with half of that loss due to the fall, agreed that the loss of movement caused by the fall "... is a significant loss". (Transcript page 196).
Dr Stewart agreed that the loss of movement due to the fall was more than a minor restriction in movement. When asked by Mr Hilliard whether the applicant had a "substantial" loss of movement due to the fall Dr Stewart answered "absolutely". (Transcript page 197).
Dr Stewart stated in his medical report and in evidence that as the applicant’s impairment equated to 10% “whole person” impairment and half the loss was due to the fall that loss was therefore 5%. That simple analysis does not accord with the meaning of Table 9.6 and ignores the explicit criteria in the righthand column of the Table which should be used to determine the correct percentage loss.
75. Mr Mander agreed with Dr Kenna's assessment of 10% impairment but emphasised the need for the applicant to undertake rehabilitative treatment before his opinion could be said to be final. He said at page 4 of his report dated 28 January 2006:
"I consider it is very important that the words "reasonable rehabilitative treatment" be considered in this case and in my opinion, Mr Gottschalk should be presented to a rehabilitation unit for such further assessment and consideration of the treatment, as recommended. Only then following use of all methods could one state that my assessment and that of Dr Kenna of a 10% permanent impairment can be considered final". (T20 page 81)
76. Physiotherapist Ms J Wilkinson said in her report of 15 January 2007 that when the applicant was referred to her in March 2006 "all movements of the lumbar spine were significantly reduced by 50% ...". She said that at the end of the hydrotherapy and back strengthening program on 5 October 2006 there was "still significant loss of movement of his lumbar spine - with very little change ...".
77. A number of medical reports indicate that the applicant was able to achieve a good range of body movement when he was examined during the course of various consultations. Some of those results were included in a helpful list handed to the Tribunal by Mr Morgan during the course of the hearing. It is noted that even though, for example, Mr Mander and Dr Stewart indicate that the applicant was able to perform a good range of movement they both, with certain important qualifications, agreed that a 10% impairment could well be correct. The Tribunal finds the opinion of those medical practitioners who directed their attention to the requirements of Table 9.6 to be more relevant and persuasive on the critical issue of movement of the thoracolumbar spine than comments on ability to flex and rotate included in various reports.
78. The Tribunal finds that the opinion expressed by Dr Stewart in his oral evidence in agreeing that the loss of movement under Table 9.6 due to the fall was "substantial" and not a "minor" loss of movement to be of very real significance. He was, after all, the medical expert called on behalf of the respondent.
79. As Dr Stewart agreed in his evidence, this is not a case where the criterion "x-ray changes only" is relevant. There is evidence of loss of movement. I accept Dr Stewart's opinion on that issue.
80. Under Table 9.6 "minor restrictions of movement" of the thoracolumbar spine equates to 5% "whole person impairment". It follows that if a restriction of movement is more than a "minor restriction of movement" there must be present a "loss of less than half normal range of movement" or some higher category of loss.
81. The word "minor" should be given its ordinary meaning. In Re Amorebieta and Comcare (1994) 35 ALD 603 it was suggested that the word in this context means "comparatively small or unimportant but not trivial". That seems to be a reasonable interpretation of the meaning of "minor" and accords with one of the definitions in the Shorter Oxford Dictionary. I should mention that Amorebieta's case was actually overturned on appeal but for other reasons. In the present case I am satisfied that the restriction of movement is not minor. It is more than minor. Dr Stewart was content to adopt the terms "significant" and "substantial" to describe the loss of movement due to the fall. Dr Kenna, of course, considered the loss of movement due to the fall to be 10% whole of body impairment. Clearly he considered that the loss was more than minor.
82. After considering the totality of the evidence the Tribunal concludes that the appellant has suffered a loss of movement of the thoracolumbar spine which is a loss of "less than half normal range of movement" but exceeds a "minor restriction of movement". That loss of movement results directly from the fall. It is therefore equal to 10% of "whole body impairment".
Conclusion
83. There is evidence of some age related degenerative changes to the spine. Those pre-existing degenerative changes were not significant. The applicant complained of aches and pains and said he might have a "bad back". As was said in evidence that type of complaint is not uncommon.
84. The degenerative changes, his other medical conditions and his poor physical condition and posture have caused some restriction of body movement. However the key finding is that the Tribunal is indeed satisfied that there is a sufficient permanent restriction of movement caused to the applicant's thoracolumbar spine and resulting directly from his fall to entitle him to compensation for permanent impairment.
85. It has been consistently held that an onus of proof does not apply in proceedings before this Tribunal, except, of course, where the particular legislation then being considered expressly creates such an onus (see Australian Telecommunications Commission v Barker (1990) 12 AAR 490).
However, even though there is no formal onus, the Tribunal has to be satisfied in a case of this particular kind that the facts giving rise to an entitlement do exist. The standard of satisfaction required is the ordinary civil standard of proof or satisfaction “on the balance of probabilities”.
The Tribunal is satisfied to that standard that the essential elements required to establish an entitlement to compensation for a permanent impairment are present in this application.
86. The Tribunal therefore finds that as a result of the injury suffered in the fall on 14 September 2002 in the course of his employment with the Department of Defence the applicant has suffered a 10% personal impairment in accordance with Table 9.6 of the Guide.
Costs
87. This decision is one to which section 67 of the Act applies. It appears that the applicant is entitled to costs. I will however hear counsel as to costs if an application is made within fourteen days. If no application is made within that period I will order that the respondent pays the applicant's costs of these proceedings as agreed or taxed and that order will be incorporated in the decision.
Decision
88. The decision under review is set aside and the matter remitted to the respondent with the following directions:
(a)the applicant is suffering from a permanent impairment as a result of an injury suffered by him in the course of his employment on 14 September 2002.
(b)the degree of permanent impairment under Table 9.6 of the Guide to the Assessment of the Degree of Permanent Impairment is 10%
(c)the amount of compensation payable to the applicant is to be assessed.
I certify that the 87 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom (Deputy President)
Signed: R Hunt (Administrative Assistant)
Date/s of Hearing 31 May, 1 June and 24 July 2007
Date of Decision 24 September 2007
Counsel for the Applicant Mr B Hilliard
Solicitor for the Applicant Hilliard & Associates
Counsel for the Respondent Mr B Morgan
Solicitor for the Respondent Australian Government Solicitor
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