Hassaballa and Comcare
[2000] AATA 134
•24 February 2000
DECISION AND REASONS FOR DECISION [2000] AATA 134
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1998/1592
GENERAL ADMINISTRATIVE DIVISION )
Re MAURICE HASSABALLA
Applicant
And COMCARE
Respondent
DECISION
Tribunal Dr J D Campbell, Member
Date24 February 2000
PlaceSydney
Decision The Tribunal affirms the decision under review
(Sgd) J D Campbell
..............................................
Member
CATCHWORDS
Compensation - Permanent Impairment - Degenerative disorder cervical spine - aggravation - pre December 1988.
Safety, Rehabilitation and Compensation Act 1988 - ss 4, 16, 19, 23, 24, 27, 124.
Compensation (Commonwealth Government Employees) Act 1971.
Blackman v Australian Telecommunications Corporation (1990) 19 ALD 781
Department of Defence v West (1998) 85 FCR 491
REASONS FOR DECISION
Dr J D Campbell, Member
In this matter, Mr M Hassaballa ("the Applicant") seeks a review of the decision of a Review Officer for Comcare ("the Respondent") dated 12 October 1998. The decision affirmed an earlier decision, dated 19 June 1998, made by an officer of the Respondent to deny the Applicant's claim for permanent impairment and to cease liability in total from 19 June 1998.
A Hearing was held before the Tribunal on 29 November 1999 at which the Applicant, with the assistance of an interpreter, presented oral evidence. The Respondent was represented by Mr G Elliot of Counsel. The Tribunal also heard oral evidence from Dr D Dowda, a consultant occupational physician
The Tribunal had the following written material placed in evidence:
Documents prepared pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975. T1-T89, pp1-201 T Documents
Two medical reports of Dr M Morris dated 12 July 1999 Exhibit R1
Respondent's Statement of Facts and Contentions dated 14 April 1999 Exhibit R2
Relevant issues in this matter are:
a)the nature of the injury, if any, to the Applicant's left shoulder, neck and lower back as a result of an incident at work on 19 January 1982; and
b)whether the Applicant had a pre-existing degenerative process in his cervical, thoracic and/or lumbo sacral spine at the time of the incident in 1982, and to what extent that degenerative process existed; and
c)whether the Applicant is entitled to compensation for medical treatment and expenses pursuant to section 16 of the Safety, Rehabilitation and Compensation Act 1988; and
d)whether the Applicant is entitled to continued weekly incapacity payments pursuant to section 19 of the Safety, Rehabilitation and Compensation Act 1988; and
e)whether the Applicant is entitled to permanent impairment compensation pursuant to section 24 and 124 of the Safety, Rehabilitation and Compensation Act 1988.
LEGISLATION
The relevant legislation is the Safety, Rehabilitation and Compensation Act 1988 ("the 1998 Act") and in particular sections 4, 16, 19, 23, 24, 27 and 124. Further relevant legislation is the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act").
BACKGROUND MATERIAL AND SECTION 39The Applicant was involved in an incident at work on 19 January 1982, and completed a claim for compensation in respect of injury to his left shoulder disc and neck on 11 February 1982, for which liability was accepted for "cervical spine strain" on 25 October 1982. A claim for permanent impairment was made in respect of chronic neck and upper back pain and disability on 26 August 1991. This claim was rejected by Comcare on 23 September 1991, this decision being reaffirmed on review on 10 February 1994. A further claim for permanent impairment in respect of "…neck pain over whole cervical spine to thoracic region…low back…lumbar region" was made on 1 December 1997 (T82). Comcare declined the Applicant's claim for compensation for permanent impairment and ceased liability generally as from 19 June 1998. This decision was affirmed on review by Comcare on 12 October 1998.
EVIDENCE:
MR M HASSABALLA:The Applicant told the Tribunal that he was born in Cairo on 3 November 1929 spending five years at high school, before becoming a teller in a bank, after which he worked in his father's shop as a jeweller. The Applicant further related to the Tribunal that he migrated to Australia in 1967, where for some years he worked on a production line, followed by two years as a jeweller with Angus and Coote in Sydney. The Applicant stated that he left this job because of difficulties with his eyesight and then commenced as a cleaner with the Department of Transport in early 1981.
The Applicant stated that on 19 January 1982 he was directed by his boss to carry a heavy bin, which he put on a trolley, and in lifting it to put into a bigger rubbish bin, he had to raise the bin above shoulder height. About 20-30 minutes after this activity he noticed his left shoulder and back to be very sore. He further stated that he was advised by his boss to go and see his local doctor, which he did, and after some x-rays were taken he was referred to Dr Guirgis who put him into a private hospital for traction on several occasions. Mr Hassaballa told the Tribunal that he has never returned to work after the injury, having been home doing nothing, and now experiences pain in the shoulder and lower back, with some further pain in both legs.
Mr Hassaballa told the Tribunal that after the accident, he developed diabetes in 1985; that the accident damaged his back, shoulder and neck; that he has lumbar back pain when bending, difficulty with turning his neck and elevating his arms above shoulder height; that he takes medication for sleeping and experiences pain and cramps in his legs when walking and cannot walk more than 200 to 300 metres; that he takes tablets for such cramps; that he is married but separated with his wife still residing in the same premises; that his wife does most of the household activities, with some help from him with cooking and shopping, and that he has never driven or owned a car.
In response to questions from the Respondent, the Applicant stated that he did not feel pain when lifting the bin, but did tell Dr Farag (attending general practitioner) on his first visit about this injury that he experienced pain in his neck and back on the first day, including pain in his lower back, which commenced two to three days after the accident.
MEDICAL EVIDENCEIn a report of an incident dated 19 January 1982, Mr J Selwyn recorded that the Applicant:
"Sustained an injury to his left shoulder while carrying a work shop waste bin to be emptied in to a master waste bin. The accident happened at 10:30 AM on the 19/1/82. I examined his shoulder no treatment was given as he expressed his desire to seek medical treatment and advice." (T3, p4)
A radiological examination of his cervical spine and left shoulder were undertaken by Dr Bennett on 22 January 1982, who reported:
"Cervical Spine
…Conclusion: Spondylotic change as specified is noted in the lower cervical spine. There is evidence of bony encroachment upon the lower neural exit foramina.
Left Shoulder
…
Conclusion:No abnormality of the shoulder joint is detected." (T4, p5)
In a series of medical certificates, Dr Farag described the Applicant as suffering from cervical spondylosis (22 January 1982), neckpain, disc 5-6-7 (29 January 1982), neck injury (10 February 1982), c5-6 disc lesion (24 February 1982) (T6).
In a further series of medical certificates, Dr M Guirgis, consultant orthopaedic surgeon, describes the Applicant's injuries as neck injury (27 February 1982), neck and back injury (25 March 1982), (17 April 1982), (26 May 1982), back injury (22 July 1982), and usually thereafter as either a neck and back injury or a back injury up to 19 October 1988 (T6).
In further radiological examinations, Dr Williams reported on 20 April 1982:
"Cervical Spine
There are moderately advanced osteospondylitic changes affecting the lower cervical spine. The most pronounced of these changes is at the C6/7 discal joint but there are also advanced changes at the C5/6 articulation and, in lesser degree, at the C4/5 joint. Prominent posterior osteophytes have formed and there is encroachment on the nerve root foramina at C5/6 and C6/7 bi-laterally. It is noted that the range of cervical spine movement is very markedly reduced…
…the changes described appear to be degenerative in type although clearly liable to aggravation by injury.
Thoracic Spine
There are very localised osteospondylitic changes which involve the discal joints at D8/9, D9/10 and D10/11;" (T12, p53)
DR E BLOCH
The Applicant was examined on 7 May 1982 by Dr Bloch, a consultant orthopaedic surgeon, who reported:
"Examination: Moved freely, undressed with ease…However, when distracted and on the couch, he had a full range of cervical movements…Rapidly jumped off couch and dressed.
…
Opinion: The sites of his complaints along the whole spine etc, have no objective findings in their support and he is fit for all his usual duties forthwith. Needless or irritant treatments only compound fears and motivations and there appears to be a strong element of the latter.
The prognosis obviously relates to the latter, in an industrial sense, medically he has fully recovered from his alleged strain which has left no disability." (T13, p54)
DR GUIRGIS
In a report dated 17 September 1982, Dr Guirgis, a consultant orthopaedic surgeon, stated that he first saw the Applicant on 27 February 1982 and in his opinion the Applicant had sustained the following injuries:
"…
1. A muscular ligamentus injury of the cervical spine in the form of a cervical spine strain which had unfortunately triggered the symptoms off and/or aggravated the effects of pre-existing osteo-spondylotic changes affecting the mid cervical area…2. A muscular ligamentus injury of the dorsal spine in the form of dorsal spine sprain which had again triggered the symptoms off and/or aggravated the effects of pre-existing osteo-spondylotic changes affecting the mid and lower dorsal region." (T20, p70)
In a further report dated 18 August 1983, Dr Guirgis reports that the Applicant's response to treatment was "very sluggish" and that he "remains unfit to be involved in any activities that would require applying stresses with his neck or back" (T24). A similar report was made by Dr Guirgis on 13 April 1984 (T26), on 8 May 1985 (T31), 26 March 1986 (T36), 20 July 1988 (T49), 19 October 1988 (T53) 18 January 1989 (T55) and 14 February 1990 (T63).
In a further report on 21 August 1991, Dr Guirgis stated that the impairment was permanent and expected to worsen over time (T65, p144). Further it is recorded at T67, p117, that Dr Guirgis was firmly of the opinion that the impairment was permanent prior to 1 December 1988.
DR ROARTYDr Roarty, a consultant orthopaedic surgeon, reported on 8 August 1988, in his opinion, as a result of examining the Applicant and reviewing the radiology, that:
"…
Mr Hassaballa suffers from cervical spondylitis and spondylolisthesis of the lumbar spine. It is reasonable that the incident of the 19th January, 1982, could have precipitated the onset of symptoms in an already degenerate spinal column, but it is inevitable, according to his x-rays, that such spondylitic and degenerative spondylolisthesis would have given him some discomfort through the natural progress of the disease…" (T50, p120)
DR WEISZ
Dr Weisz, a consultant orthopaedic surgeon, examined the Applicant on 14 May 1987 and in his report dated 19 June 1987 stated:
"…
Examination of the entire locomotor system, of the cervical, dorsal and lumbar spines, upper and lower extremities including neurological investigation, testing sensory, reflexes and muscle power, being all within the normal limits.
…
Overall, I would describe that Mr Hassaballa sustained a neck strain, which could be an aggravation of the degenerative changes existent in the cervical spine. In the ensuing five years, there has been no neurological evidence to indicate any disc protrusion or any nerve root compression…" (T42, p105)
DR PATRICK
Dr Patrick, a consultant surgeon, examined the Applicant on 24 January 1997, and in his report dated 22 August 1997, Dr Patrick stated that the range of movement of the cervical spine is restricted and the thoraco-lumbar spine is stiff. After a review of particularised radiology, Dr Patrick opined:
"…
Mr Hassaballa, I believe, has sustained neck and low back injury at work on 19 January 1982…
It is likely that there has been some aggravation of cervical spondylosis and arthrosis at the mid/lower cervical spine, and it is likely that there has also been aggravation of low lumbar facet arthrosis/spondylosis and also aggravation of a lumbo-sacral spondylolisthesis…
…
I believe that the continuing symptoms at the neck and low back as described are genuine and do have a significant causal relationship with the work injury of 19 January 1982…
…
In my opinion, he has a permanent impairment of the neck of 18%; and a permanent impairment of the back of 20%. These impairments do not include any component relating to any pre-existing constitutional or developmental or degenerative condition." (T79, p 164)In a clarifying letter dated 27 October 1997, Dr Patrick stated that the percentage impairments referred to in his report of 20 August 1997 equated to a percentage whole person impairment of greater than ten percent. (T80, p166)
DR DOWDAThe Applicant was examined by Dr Dowda, a consultant occupational physician, on 15 April 1998, and in his report Dr Dowda stated:
"…
1.Mr Hassaballa has advanced degenerative changes in the cervical, thoracic and lumbar spine. There is no evidence clinically of a left shoulder condition…
2.The exact and comprehensive diagnosis for his conditions in the cervical, thoracic and lumbar spine is constitutional degenerative change (osteoarthritis).
3.The likely aetiology is a constitutional age-related degenerative change.
4.I do not believe that his employment with the Department of Transport from 1982 continued to contribute materially to the constitutional degenerative change.
5.On the history that has been given to me, it is possible that the Commonwealth employment with the Department of Transport in 1982 aggravated a pre-existing condition of cervical spine osteoarthritis…
6.It is my opinion that the work related component realistically could have expected to have ceased at a maximum time of three months after the alleged injury occurring in 1982…
7.There is no evidence that Mr Hassaballa has in one episode of lifting a rubbish tin and emptying it into a larger rubbish receptacle done any more than sustain a musculo-ligamentous strain or temporary aggravation of a well established, pre-existing osteoarthritic condition in the cervical, thoracic and lumbar spine…
8.I do not consider that the degenerative changes in his cervical, thoracic and lumbar spine are a work related condition…
9.…
10.…
11.Clearly, Mr Hassaballa's spinal condition was permanent prior to 1 December 1998…I do not consider that there is a loss of efficient use of the left arm due to an identifiable compensable condition in the left shoulder.
…" (T85)
In further evidence before the Tribunal, Dr Dowda stated that in his opinion:
i)the painful limitation of movement of the neck was consistent with the degenerative disease of the cervical spine; and
ii)that limitation of movement of the lumbo-sacral spine was likewise associated with degenerative disease of the lumbar-sacral spine; and
iii)that any glove like distribution of hypoaesthesia is more likely to arise from peripheral neuropathy associated with the Applicant's diabetes.
DR MORRIS
Dr Morris, a consultant surgeon, examined the Applicant on 12 July 1999 and in his report, Dr Morris noted:
"…
On examination of the neck he indicates some restriction of rotation though at a later stage during conversation the range is observed to be normal…In regard to the lumbar spine…has a reasonably full range of movement…Examination of shoulder joints reveals a full range of movement…"
As a consequence of this examination, Dr Morris opined:
"…
The initial complaints of neck and shoulder pain could conceivably have been due to simple musculo-ligamentous strain as indeed was diagnosed by Dr Guirgis at the time.
If so, I would be very definitely of the view that such effect has long since settled; his degenerative change in the cervical spine was well established on the initial x-rays, and has not shown any significant alteration since, nor would I expect it to do so.
I am not able to diagnose any significant derangement of his shoulder girdles or shoulder joints at this time and I do not believe there has ever been any.
…
I do not however feel that anything has happened to his neck, shoulder girdles or lumbar spine as a result of the incident in question, which would render him unfit for work at this stage.
…" (Exhibit R1)
In a further report of the same day, Dr Morris concluded that:
i)there is no impairment assessment in regard to either arm or either leg on the basis of the appropriate comcare tables; and
ii)as regards the cervical spine, there are x-ray changes and therefore no percentage impairment is assessable; and
iii)Minor restriction of lumbosacral movement is due to a degenerative change in the thoracic spine and the constitutional disorder of spondylolisthesis at the thoraco-lumbar junction. This impairment is assessed at five percent whole person impairment. (Exhibit R1)
SUBMISSIONS
The Applicant submitted that he had suffered damage as a result of the injury of 19 January 1982, that the pain and suffering arising from that injury continues, and that his requirement for treatment is ongoing. Further he stated that he should be reimbursed for necessary medical treatment, and in relying upon the report of Dr Patrick, compensated pursuant to sections 24 and 27 of the Act.
The Respondent argued that there had been an overgenerous payment of weekly compensation and that section 23 of the Act prevented payment, once the Applicant had reached the age of 65. Further the Respondent argued that:
i)there was an inconsistency between the injuries that the Applicant initially claimed arose from the incident of 19 January 1982 (injury to left shoulder) and what he later claimed to have arisen (neck and lower back); and
ii)that there was no significant trauma to either the neck or the lower back; and
iii)that the Applicant is unreliable with regards to his clinical symptomology as evidenced by the reports of Drs Bloch, Weisz, Dowda and Morris; and
iv)that the injury was of a relatively minor nature, which settled quickly and that any subsequent symptomology is a consequence of the underlying pre-existing degenerative and constitutional disease process; and
v)that any permanent impairment ceased well prior to 1 December 1988, as evidenced by the opinion of Dr Guirgis and Dr Dowda; and
vi)that Dr Patrick's assessments are not consistent with the Comcare Guide.
CONSIDERATION AND FINDINGS
The Tribunal in considering the major issues in this matter notes that the Applicant has consistently described the circumstances leading up to the injury of 19 January 1982. Further the Tribunal notes the sequence of events involving the Applicant's intermittent attendance at work in the week following the incident, and thereafter his non-return to work. The Tribunal also notes the variable description rendered by the Applicant as to the nature of his symptomology in the weeks following his injury. Further the Tribunal acknowledges the radiological opinions of Drs Bennett and Williams in which they state on 22 January 1982 and 20 April 1982 respectively that the Applicant has osteospondylitic changes to the lower cervical spine, to the lower dorsal spine and no abnormality detected in the left shoulder joint. The Tribunal, in relying upon both these radiological opinions and the consultant opinions of Drs Guirgis, Bloch, Weisz, Roarty, Patrick, Dowda and Morris finds that the Applicant had a pre-existing condition described as cervical spondylitis, lumbar spondylitis and spondylolisthesis, all involving a degenerative process in the cervical, thoracic and lumbar spines.
The Tribunal, while acknowledging the variability in the Applicant's early symptomology, concludes that some of the variability, eg shoulder joint pain, could be explained by the widespread nature of the pre-existing degenerative spondylitic changes. Nevertheless there is also evidence that a number of consultants have questioned the Applicant's consistency in co-operation at examination (Drs Bloch, Weisz, Morris). The Tribunal, in concluding this issue, finds that the Applicant has provided a history consistent with his symptomology, but for whatever reason, has on occasions been inconsistent in his co-operation with examining consultants, with a resultant difficulty of accuracy of impairment assessment occurring for the attending consultants.
In the Tribunal's consideration the opinions of the various medical consultants as to the nature of the initial injury and its subsequent sequelae constitute two differing lines of opinion. The first of these lines of opinion is that nominated by Dr Guirgis, a consultant orthopaedic surgeon, who, in a report dated 17 September 1982 considered the Applicant to have suffered a muscular ligamentous injury to both his cervical and dorsal spine as a result of the injury of 19 January 1982. This strain injury had either initiated and/or aggravated the symptoms of the underlying degenerative disease process. The Tribunal further observes that in a number of medical reports (T24, 26, 31, 36, 49, 53, 55, 63), Dr Guirgis states that the Applicant's condition continues and his response to treatment "is very sluggish" (T26); that the injury also involves the lumbar spine and that the Applicant "remains unfit to be involved in any activities that would require applying stresses with his back or neck" (T24). Dr Patrick believes the Applicant to have continuing symptoms at the neck and lower back and that the symptoms have a significant causal relationship with the work injury of 19 January 1982 (T79). The Tribunal also notes that on 25 October 1982, liability was accepted for cervical spine strain resulting in aggravation of cervical spondylosis. The acceptance of liability led to the payment of weekly incapacity payments under the 1971 Act, until they were ceased by the decision which has led to this appeal.
The alternative line of medical opinion is that nominated by Dr Bloch, a consultant orthopaedic surgeon, who on 7 May 1982 reported that the Applicant "has fully recovered from his alleged strain" (T13) and further that "the sites of his complaints along the whole spine etc have no objective findings in their support" (T13). Dr Roarty, a consultant orthopaedic surgeon stated that:
"…
It is reasonable that the incident of the 19th January, 1982, could have precipitated the onset of symptoms in an already degenerative spinal column, but it is inevitable…that such spondylitic and degenerative spondylolisthesis would have given him some discomfort through the natural progress of his disease…" (T50).
Dr Weisz, a consultant orthopaedic surgeon, opined "Overall I would describe that Mr Hassaballa sustained a neck strain, which could be an aggravation of the degenerative changes existent in the cervical spine…" (T42). Dr Dowda, a consultant occupational physician, in his report of 15 April 1998, opined that on the history given to him, it is possible that the work injury in 1982 aggravated a pre-existing condition of cervical spine osteoarthritis, but that the work-related component could be expected to have ceased within three to six months of the original injury (T85 and oral evidence). Dr Morris, a consultant surgeon, in his report of 12 July 1999 stated that:
"…The initial complaints of neck and shoulder pain could conceivably have been due to simple musculo-ligamentous strain, as indeed was diagnosed by Dr Guirgis at the time. If so, I would be very definitely of the view that any such effect had long since settled…" (Exhibit R1).
The Tribunal, in considering these two lines of medical opinion, concludes that the essential difference between the two relates to the nature of the original injury (simple strain versus a strain which aggravated a pre-existing condition), the cessation versus continuance of symptomology arising from the work caused injury, and the Applicant's inconsistent cooperation at medical examinations resulting in a variability of range of movement of the affected areas being demonstrated. The Tribunal, in considering all the medical evidence and the evidence of the Applicant, concludes that the Applicant did suffer an injury to his cervical spine as a result of the incident of 19 January 1982 – that this injury was of the nature of a ligamentous strain to the cervical area, which in turn aggravated an underlying pre-existing degenerative cervical spondylitic process. It is further the finding of this Tribunal that the effects of this aggravation (ie the work related component) ceased within six months of the original injury. In making such a finding, the Tribunal relies upon the opinion of Dr Guirgis in part (nature of the original injury), and the opinions of Drs Bloch, Weisz, Roarty, Dowda and Morris as outlined earlier in this decision.
In so finding that the effects of the work related aggravation ceased within six months, the Tribunal, in making such a decision, has recognised that any continuing symptomoloy in the Applicant's cervical, thoracic or lumbar spine is due to the deterioration of the underlying pre-existing degenerative process. This again is, in the Tribunal's opinion, consistent with the opinions of Drs Bloch, Weisz, Roarty, Dowda and Morris, and is inconsistent with the opinion of Dr Patrick (an opinion the Tribunal does not prefer in the light of so many other medical consultant opinion to the contrary). Further the Tribunal concludes that the Applicant's inconsistent cooperation at medical examinations resulting in a variability of range of movement of the affected area during the one examination is a matter which must and does affect the Applicant's credit in so far as demonstrating the effect of his symptomology and the range of active and passive movements. Finally, the Tribunal finds that the Applicant has had no injury to his left shoulder or shoulder joint as a result of the incident of 19 January 1982. Such a finding relies upon the radiological opinions and the stated medical opinions of the various consultants nominated and preferred earlier in this paragraph.
The medical opinions relating to the issue of permanent impairment in this matter are both particular and singular. The Tribunal notes that both Dr Guirgis and Dr Dowda state that any impairment in this matter was permanent prior to 1 December 1998. The Tribunal accordingly finds that the impairment of cervical spondylitis and lumbar spondylolisthesis was permanent prior to 1 December 1988. The Tribunal accordingly finds that on the medical evidence tendered in this matter, there were no impairments of the upper of lower limbs existing prior to 1 December 1988. Further the Tribunal finds that the permanent impairment which existed prior to 1 December 1988 was not a work-related impairment.
In further considering the medical opinions tendered in this matter the Tribunal, while acknowledging Dr Patrick's opinions (T79, 80) and his provision of two assessments, is unable to understand as to how Dr Patrick arrived at such assessments, to which tables he was referring and to what point in time was his assessment of greater than ten percent whole person impairment addressed. In the light of these comments, the Tribunal concludes that these elements of Dr Patrick's reports are unhelpful.
Finally, in considering the issues of assessment, the Tribunal observes that there has been no assessment of the permanent impairment prior to 1 December 1988; that there is no assessment of the permanent impairment at 1 December 1988 and that the only assessment of the permanent impairment is that by Dr Morris, where he finds a five percent whole person impairment associated with minor restriction of movements of the lumbo sacral spine, arising from the non work caused condition of degenerative change in the thoracic spine and the constitutional disorder or spondylolisthesis.
In summary, the Tribunal has found that the Applicant:
i)had a pre-existing condition of degenerative cervical and thoracic spondylitis and lumbar spondylolisthesis; and
ii)suffered an acute cervical ligamentous strain as a result of the incident at work on 19 January 1982 which temporarily aggravated the pre-existing degenerative spondylitis; and
iii)had a work related temporary aggravation which ceased within six months of the injury; and
iv)has a continuing symptomology associated with his underlying degenerative spondylitis; and
v)failed to effectively cooperate during many of his medical examinations, resulting in inconsistency in the range of active and passive movement of cervical and lumbo sacral spine being demonstrated; and
vi)has, through the medical evidence, a permanent impairment, established prior to 1 December 1988 and that this permanent impairment on the balance of probabilities is not work related; and
vii)has failed to provide any usuable assessment of his permanent impairment, either prior to, at or after 1 December 1988.
viii)Has on the evidence of Dr Morris a five percent whole person impairment arising from his degenerative spondylitic spinal condition.
In relation to the Applicant's claim for permanent impairment, the Tribunal finds that such a claim must fail for the following reasons:
a)the Applicant does not, as a result of the findings of the Tribunal have a permanent impairment which is work caused; and
b)even if such a permanent impairment had been work caused, the impairment becoming permanent prior to 1 December 1988, necessitating that for compensation to be payable pursuant to Section 24 of the 1988 Act, the transitional provisions contained within section 124 of the 1988 Act must be satisfied. The Applicant's permanent impairment relates to his back (cervical, thoracic and lumbar spine) and pursuant to section 29 of the 1971 Act no lump sum is payable for such an impairment. As a consequence section 124(3)(b)(iii) of the 1988 Act is not satisfied, and accordingly the Applicant is not entitled to payment of compensation pursuant to Section 24 of the 1988 Act; and
c)further, even if a lump sum had been payable pursuant to Section 39 of the 1971 Act, the Tribunal would not have been in a position to make a finding in relation to issues arising from Section 24 of the 1988 Act, as assessment of the permanent impairment had not been made, nor could the Tribunal make it at the operative date – 1 December 1988. Further in terms of whether there was a new impairment post 1 December 1988 an/or alternatively an increased assessment of the existing impairment post December 1988, it is the Tribunal's observation that material to support such contentions was not put into evidence before the Tribunal, nor could the Tribunal draw any such inference from the material before it. While noting that the issues mentioned in Blackman v Australian Telecommunications Corporation (1990) 19 ALD 781 and Department of Defence v West (1998) 85 FCR 491 and the ten percent threshold nominated within section 24 (7) of the 1988 Act, the Tribunal is not in a position to effectively comment on their relevance to this matter, as the basic evidentiary material has not been established.
Finally, the Tribunal notes that liability was ceased in total from 19 June 1998, this decision having been affirmed on 12 October 1998. In relation to the Applicant's request for reinstatement of his weekly payments and medical expense payments made pursuant to the 1971 Act, the Tribunal, in noting that section 23 of the 1998 Act, concludes that even if liability had not been ceased, continuance of weekly incapacity payments made pursuant to the 1971 Act may have been a difficult task in lieu of section 124(7) of the 1988 Act which prevents the payment of weekly incapacity compensation payments for a person over the age of 65 (section 19 of the 1998 Act). As it has been the Tribunal's finding that the work caused temporary aggravation ceased many years prior to this consideration, any question of medical expenses is not a continuing issue for this Tribunal, other than to say that they cannot be paid.
DETERMINATIONThe Tribunal confirms the decision under review.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of DR J D Campbell, Member
Signed: .....................................................................................
AssociateDate/s of Hearing 29 November 1999
Date of Decision 24 February 2000
Representative for the Applicant Self Represented
Counsel for the Respondent Mr G Elliot
Solicitor for the Respondent Mr G Stuart
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