Hocking and Comcare
[2002] AATA 537
•2 July 2002
DECISION AND REASONS FOR DECISION [2002] AATA 537
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2000/92
GENERAL ADMINISTRATIVE DIVISION )
Re RICHARD HOCKING
Applicant
And COMCARE
Respondent
DECISION
Tribunal Mr R D Fayle, Senior Member Dr P Staer, Member
Date2 July 2002
PlacePerth
Decision Pursuant to s43 of the Administrative Appeals Tribunal Act 1975, the decision under review is affirmed.
….........(sgd R D Fayle)........................
Senior Member
CATCHWORDS
COMPENSATION –injury to mid thoracic paravertebral muscle - permanent impairment – whether 10 percent permanent impairment – matter of appropriate Table under Part A of the authorised Guide – applicability of Table 9.6 or 13.1.
Safety, Rehabilitation and Compensation Act 1988 – ss4(1), 24 & 28
Allen and Comcare [2000] AATA 152
Geoffrey Hughes-Brown and Comcare [1998] AATA 972
Haugh and Comcare [1999] AATA 906
REASONS FOR DECISION
2 July 2002 Mr R D Fayle, Senior Member Dr P Staer, Member
On 27 October 1998 Mr Richard Hocking ("the applicant") lodged a claim for rehabilitation and compensation in respect of paravertebral muscle tear sustained on 12 March 1992 in the course of his employment with the Department of Defence, Royal Australian Navy ("the Navy"). On 3 December 1998, a delegate of the Military Compensation and Rehabilitation Service determined, pursuant to s16 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") that the applicant's diagnosed injury, right mid-paravertebral muscle tear, arose out of the applicant's employment with the Navy.
On 16 March 1999, the applicant lodged a claim, pursuant to s16 (medical expenses) and s24 (permanent impairment) of the Act. On 4 June 1999 a delegate disallowed the claim in respect of the permanent impairment (T24). On 21 June 1999, the applicant requested a reconsideration (T25) and on 16 October 1999, a delegate affirmed the decision (T28). On 22 March 2000 the applicant applied to the Tribunal for a review of the 16 October 1999 decision. (T29)
At the hearing the applicant was represented by Mr Chris Prast, of Slater and Gordon. Mr Jeremy Allanson, barrister, represented Comcare for the Department of Defence ("the respondent"). The applicant gave evidence in person. Oral evidence was given by Dr. John B Cardwell (by telephone); Dr. Ratan C Edibam, in person, and Dr. David S Elder by video link from Melbourne. The Tribunal had before it the documents filed by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"). The following exhibits were taken into evidence;
A1 Proof of Evidence by Richard Hocking filed with the Tribunal 8 April 2002, (with minor corrections).
A1a Pages 3-6 of the applicant's Statement of Facts (and Contentions), received by the Tribunal on 20 August 2000, not all of which facts were agreed.
A2 Report of Dr. D. Elder dated 25 July 2000
A3 Report Dr. D. Elder dated 11 April 2000
R1 Report of Dr. R. Edibam dated 22 March 2001
R2 Letter of Blake Dawson Waldron to Dr Edibam dated 12 March 2001
The Evidence
Petty Officer Richard Hocking (the applicant)
The applicant affirmed his written evidence (A1 and A1a), which he embellished. The applicant joined the Navy in 1981 and trained as a clearance diver. It is not in dispute that the applicant had no history of back/spine injury prior to the incident on 12 March 1992. On that day, as crew on board HMAS Brunei the applicant injured his back while assisting the positioning of a gangway. He needed immediate attention and was removed by ambulance to the Cairns base sickbay. He developed a huge knot of muscle on the right side of his lower back (demonstrated to the Tribunal as thoracic 8-9 level). After 4 days he was airlifted to HMAS Penguin, a shore based Naval hospital at Balmoral in NSW. He was diagnosed as having torn his right thoracic paravertebral muscles ("the injury"). There is no dispute as to the occurrence of the injury.
The day after arrival at HMAS Penguin he was discharged on 3 months convalescent leave. At the time his family was living in Sydney. His treatment included physiotherapy and, on his own initiative, chiropractic treatment. However, at a medical examination on 29 April 1992, well before the expiry of the convalescent leave, it was noted that he had made remarkable improvement and was certified as "Category 1" (Fit for Duties). He returned to full-time duties on a graduated basis. He found regular and ongoing chiropractic treatment kept his back pain symptoms under control although he said that he has never been free of pain since the accident. He said that bending, rotating, lifting his arms to get something off a shelf, and lifting his small children all cause pain. He said that most of the time he lives with it but periodically he gets acute flare ups that put him to bed rest for 2-3 days. He said that he used Panadol regularly and Dolased (contains paracetamol, codeine and a muscle relaxant) when things get bad. He has had to give up sport and is restricted in playing with his children. He said the acute episodes occur once or twice a month. He loses time from work but this in not recorded as some of the attacks happen while at home and even on board ship he can rest without interfering with his supervisory duties. He said though that from time to time he need to lie flat to relieve the pain and he has had to do that on board as well as whilst at shore bases and at home.
He told the Tribunal that until recently he has passed his medical examinations as "Category 1" for duty as a clearance diver. However, more recently (apparently since the lodgement of the claim) he has been assessed as "Category 2-01", which is "fit for operational deployment with restrictions". During a six-month period from October 2001 to March 2002 he served on the HMAS Sydney in the north Arabian Gulf. He said that during this time he had 3 episodes of acute pain but he continued with his duties as a Petty Officer, albeit in a supervisory capacity.
The applicant gave his evidence in a clear and straightforward manner. However, in the opinion of the Tribunal, there is an inconsistency with the applicant having been given a medical clearance as fit for diving and his stated level of symptoms. In this respect the Tribunal acknowledges what Dr. Elder in his report (A2) that "..there was unfortunately some measure of exaggeration and some abnormal illness behaviour in his presentation". Dr Elder's evidence is considered in more detail later in these reasons.
Dr. John Cardwell
Dr. Cardwell examined the applicant on 19 May 1999 for, in effect, the respondent. His report at T23 was affirmed. He found pain and tenderness in the applicant's thoracic paravertebral muscles but concluded that the applicant had full range of movement in his thoracic and lumber spine. In his report, under that broad heading "Stable Permanent Impairment", Dr Cardwell made the following comment:
"This is a soft tissue injury not affecting the thoracic spine. He has full ROM of thoracic and lumbar spines. He finds that rotational movements of a sudden nature cause spasmodic and very painful contractions of his right paravertebral muscles, such that he has to retire to bed and take 2-3 days off work. This occurs at least twice monthly, i.e.> 12 times a year. This is quite clearly a non-spinal/orthopaedic problem but an intermittent condition and should be assessed as such. …"
He also records the following comment under the heading "Mobility":
"In between his episodes of pain he is quite capable of performing his normal duties for the RAN as a diver and diving instructor. He has retained a full, unrestricted medical category of 1 with the RAN. He voluntarily has ceased sports and activities involving rotation of the spine under load which precipitate his right spinal pain
Under the heading "Recreation & Leisure Activities", Dr Cardwell comments:
"Although he still enjoys a full medical category of 1 with the Royal Australian navy, he no longer is able to participate in contact sports particularly those involving rotational movements. I find this somewhat anomalous insomuch that the physical restrictions are not reflected in his medical rating of 1."
Dr Cardwell gave the following responses to a question put to him by Mr Prast for the applicant:
MR PRAST: So you would have no recollection or record as to whether you examined the applicant's lumbar spine, for example?---Yes, I did. Because if you look at paragraph 6: Stable Permanent Impairment, and in the comments section it says, "This is" - and this is my writing:
"This is a soft tissue injury, not affecting the thoracic spine. He has full range of movement of thoracic and lumbar spines."
And it goes on to say:
"He finds that rotational movements of a sudden nature cause spasmodic and very painful contractions of his right paravertebral muscles."
So, the answer to that, to your question, is, yes, I did, both his - in lay terms, chest and low back spine. His lumbar spines were examined. They were found to be in full range of movement at that time. In other words, there was no spasm restricting the actual range of movement of the spine when I saw him. (Tr.p.13)
And in answer to a further question put to him by Mr Prast, Dr. Cardwell stated:
MR PRAST: The rotational movement that you described that there were restrictions in?---Yes.
Where does that come from, which part of the spine does that come from?---Your chest spine, your thorax.
Right?---Look I will split the spine into four pieces. First of all you have your sacrum coccyx, which is a bony structure that does not move, you sit on it. Then you have your lumbar spine, a lumbar spine is designed by nature for forward flexion, backward extension, there is a rotation of only about 2 and-a-half degrees to left or right and also lateral flexion, to whit put your hands to your side seams and go down to follow you down to your knee, right. Now that is what lumbar spine does. The next piece of spine is your chest spine and chest spine will only rotate, it does not flex, it does not extend and it does not lateral flex. If you think about it, if it did we would be banging our ribs and squashing them together in pain every time we made a movement, which is ridiculous and then the other piece of spine is your neck, or cervical spine, which has movement in all directions. (Tr p.15)
Dr. Cardwell assessed the applicant as 10% Whole Person Impairment under Part A, Table 13.1, (Miscellaneous), of the Guide to the Assessment of the Degree of Permanent Impairment ("the Comcare guide") pursuant to s28 of the Act. He contended that Table 9.6 (Musculo-Skelatal System) is inappropriate since it relates to bones and joints. In his opinion Table 13 is appropriate, commenting in his oral evidence that:
Coming back to chapter 13, really intermittent conditions is the sort of garbage can in which you drop things that you can't put anywhere else and with paravertebral muscles or with muscle injuries and particularly in a case like this where the actual bony spine of chest, thoracic spine, is not involved, then you have got no option but to use - well you can either do nothing and make a nil award, which is ridiculous, or you can say: right, well this chap will fit into a miscellaneous, to whit intermittent condition and after all this condition, from Mr Hocking, is intermittent.
Dr. Ratan Edibam
Dr. Edibam affirmed his report of 22 March 2001 (R1). Under the heading of Clinical Examination he states:
"On clinical examination his spinal posture was normal. There was some localised tenderness in his thoracic spine at T7, T8 and T9 levels and again he was tender at the lumbo-dorsal junction up to L2. That is at T12, L1 and L2.
The tenderness in his thoracic spine was in the midline over the spinous processes of T7, T8 andT10 as well as in the right paraspinal region.
In the lumbar spine he had tenderness in the midline but not over the paraspinal muscles.
As far as movements of the thoracic spine, particularly the mid thoracic spine where he sustained an injury, I must point out to you that the thoracic spine is a rigid segment, movements of flexion extension do not take place at the thoracic spine. The only movements of consequence which occur there are costo-vertebral movements, that is, movements of the ribs for respiratory excursions and these movements were within normal limits as far as Mr Hocking was concerned. He was able to take a deep breath and cough without any discomfort whatsoever.
Movements of his lumbar spine showed some limitation of flexion because of limited pelvic rotation as he had tight hamstring muscles preventing his pelvis rotating fully, although the lumbar spine seemed to move quite normally. Lumbar extension and lateral flexions were quite normal and rotational movements at the lumbo-dorsal region were within normal limits." (R1, p.2)
His written report concludes:
"The assessment of functional impairment according to the Guide to Assessment of the Degree of Permanent Impairment's issued by Comcare would not be applicable here, as one cannot assess him from the point of view of loss of movements in an area of the spine which does not normally flex or extend". (R1, p.4)
The following exchange occurred between Mr Prast and Dr Edibam:
MR PRAST: So do you say table 13.1 has absolutely no application?---I can't see any application to his spinal function.
Do you accept he does have a limitation on his spinal function?---As I said to you, if you read evaluate and functionally, in the mid-thoracic spine, then the normal parameters of evaluation of spinal functions such as restrictional range of movement, or neurological complications do not apply.
Well, you have assessed him as having a limitation of flexion?---In the lumbar spine?
Yes?---Which was not the area where he had injured himself.
I accept that. Do you accept he had any limitation of extension?---It's the lumbar spine, you do not get flexion extension in the area of the spine that he injured.
Well I understood your evidence early to say there is some extension carried out by –--?---Minute, microscopic movements, you can't - of no clinical significance. (Tr. p.26)
And in this respect, the following exchange occurred between Mr Allanson and Dr Edibam:
MR ALLANSON: Mr Edibam, when you saw Mr Hocking you had recorded carrying out a clinical examination?---Yes, I did.
And what was involved in your clinical examination?---The examination of the spine. In his case, where his complaints were directed to the spine. That is examination of his thoracic and lumbar spine.
And you, on page 2 of your report, have set out the result of that examination?---Yes, I did.
Referring firstly to posture then to some tenderness and then you've addressed the question of movement of the spine?---Yes, I did.
Right. And I think your comments there are fairly self-explanatory. You've made the point that:
Normally movement does not take place within the thoracic spine.
?---In the mid-thoracic spine, yes.
Right. And can you just, I realise we have one medical practitioner, but can you just explain where the movement occurs in the thoracic and lumbar spine?---In the thoracic spine, because of the ribs which are attached to the breastbone, it becomes a rigid segment. You can't have movement in the spine with the ribs and the sternum being rigid. Either you - you can only have it if something gives. That is if the sternum gives, you can get movement. That is after severe injury which would result in a fracture of the spine. Otherwise normally there can't be any movement, apart from movements in the ribs. The ribs move up and down like bucket handles, for the purposes of respiration.
The thoracic spine, how many vertebrae are in the thoracic spine?---Twelve.
And is there movement in any of them?---In the last two segments there is movement because the ribs are not attached anteriorly, they're floating ribs. Some movement takes place, particularly rotational movements.
And in which of the vertebrae is that?---It would be the - from the tenth to - 10/11, 11/12 and 12 and 1. Three segments.
And when you say 12 and 1, that's the ---?---lumbar dorsal junction.
Junction of the lumbar and the thoracic spine?---Yes, that's correct.
Now, if we can just go back a little bit, you referred to rotational movement, we're generally talking about what types of movement in the spine?---We're talking about in the lumbar spine, you're talking about flexion, extension and flexion to the side, lateral flexions.
Right. So forward flexion, extension and lateral flexion?---Yes. And some slight rotation movements, but they're very negligible.
Right. And that's in the lumbar spine?---That's in the lumbar spine.
The thoracic spine, you've said save for T10, 11 and 12, there's no flexion movement?---There's minor degree of flexion movement.
Or "minor degree". A greater degree in 10, 11 and 12?---Yes. Thank you.
What about rotational movement?---Yes, rotational movements take place. In fact quite a lot of rotational movements take place at those levels.
Right. And where is the site of major rotational movement?---Well at the lumbar dorsal junction, the last two thoracic segments and the junction between the last thoracic and the first lumbar vertebrae. The configuration of the flaccid joints is such that it will allow rotation movements to take place.
Right. So it's those vertebrae you're referring to, T10, 11, 12 and L1?---Yes, yeah.
Is [that] the major site of rotational movement?---Yes, that's correct.
Now you're aware that the injury suffered by Mr Hocking in 1992 was a tearing of the para-vertebral muscles for the thoracic spine?---That's - that was what was documented. I hadn't seen him at the time of the injury.
Was there anything apparent on examination which would enable you to identify the site of that injury?---He had some minor degree of tenderness but apart from that I - I wasn't able to find anything.
And the para-vertebral muscles, are they along the whole of the extent of the spine or?---Yes, they are. Right from the top to the bottom.
But you were not able to identify where within the thoracic spine that would have occurred?---No, I wasn't able to. No.
Now Mr Edibam, you've referred to some limitation of flexion being apparent in the lumbar spine?---Yes, I did.
But you have identified the site of the cause of that as being somewhere other than in the lumbar spine itself?---Yes, I did. Cause when you're standing upright and you bend forwards and touch your toes, movements take place in your hips as well as in the lumbar spine. And the movements take place in the hip because the pelvis rotates on the fixed femur and if the hamstrings are tight, then this pelvic rotation is restricted, which restricts part of the flexion movements so that if they can't reach their ankles and cannot touch their ankles, that means either the restriction is in the lumbar spine or in the hips, due to tight hamstrings. And he had tight hamstrings because I did examine him for that.
Right. Is it possible from your examination to identify a cause for the tight hamstrings, or is that ---?---It occurs. It's not an uncommon condition. Often happens with footballers, they always have their hamstrings stretched. (Tr pp.20-22)
Dr. David Elder
Dr Elder saw the applicant on two occasions, 19 July 2000 (Report 15 July 2000 - A2) and 9 April 2002 (Report 11 April 2002 - A3). His diagnosis was that the applicant "sustains scar tissue in the paraspinal musculature of his thoracic spine leading to a degree of segmental restriction" (A2, p.5). He also said that "[I]t is my opinion Mr Hocking is not in any way restricted and is obviously able to continue to work as a Navy diver" (A2 p.6).
Dr. Elder contended that while movement in the thoracic spine is small, it is measurable. He based his assessment of 10% Permanent Disability under table 9.6 on the loss of what he claims is clinically measurable flexion and rotational movements in each individual segment of the thoracic spine. However, he agreed that when taken as a whole there was little restriction of thoraco-lumbar spine movement. In this respect the following exchange occurred between Mr Prast and Dr Elder:
MR PRAST: From the history that you took, what do you understand to be the cause of the pain?---I believe that he has, sort of, chronic soft tissue injury in his thoracic spine which leads to a loss of the range of movement and what I have termed in my report, segmental stiffening, by which I actually mean that each of the thoracic vertebrae moves slightly on the other. Not much. But there is a small degree, a few degrees, of movement between each of the thoracic vertebrae. And when I actually examined Mr Hocking, I found that part of his spine that he complains of as the source of his pain, is actually very stiff and lacks that normal range of movement. (Tr p.39)
Dr Elder acknowledged that there are no references in standard medical texts or the literature to a range of movement, or how to measure movement, in the thoracic spine. His assessment was therefore based on a perceived loss of movement although that movement cannot be clinically measured in individual vertebrae of the thoracic spine (refer A3, p.3 and Tr p.44 lines 23-p.45 line 42).
Finally, the following exchange occurred between Mr Allanson and Dr Elder, in relation to his assessment of loss of spinal movement under Table 9.6 of the Comcare guide:
MR ALLANSON: Now, what I am asking, are you talking about the range of movement of the whole of that area when you are talking about half the range of movement, or are you simply talking about the range of movement in one small rigid part of that spine?---I'm sorry, yes, I beg your pardon, I have misunderstood your question, I get it now. I am not talking about the whole of the spine, no. I am talking about the area that Mr Hocking complains of. So, yes, the small area. (Tr p.56)
Conclusions
The Tribunal accepts and there is no disagreement between the parties that the applicant suffered a significant injury to his right paravertebral muscles on 12 March 1992. Ten years on the scarring from this injury causes him pain restricting his activities and intermittently causes him to have to take rest for recovery. On the basis of the evidence that the applicant is fit for deployment and promotion within the Navy, the Tribunal does not accept that his disability arising from the incident is sufficiently debilitating such as to prevent him from carrying out his duties, notwithstanding that of late those are essentially supervisory. However, the evidence is, and the Tribunal accepts, that the applicant suffers acute pain from time to time (at least 12 times a year) which cause some interference with his activities of daily living – for example he may need to lie flat on the floor for a time to relieve the pain, or he may need to have bed rest.
The Tribunal accepts that after 10 years "the injury" persists and is unlikely to resolve. Therefore, in terms of compensation pursuant to s24 of the Act, for permanent impairment, the Tribunal is, pursuant to s28(4) of the Act, bound by the Comcare guide.
The relevant legislation
We set out the relevant provisions of the Act. Section 4 contains a definition of "Impairment" (which is reproduced in the Glossary to the Guide), and a definition of "permanent":
"impairment" means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function;
"permanent" means likely to continue indefinitely;
Section 24 of the Act provides for compensation to be payable for permanent impairment when certain matters are fulfilled. It relevantly states:
24. (1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee's condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(7) Subject to section 25, where Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section.
The degree of permanent impairment is to be determined under the provisions of a Guide prepared by Comcare in accordance with section 28 of the Act. It is sufficient for the purposes of the present matter to cite only subsection (1):
28. (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.
The Comcare guide
Table 9.6 and Table 13.1 of the Guide were referred to by the parties for the Tribunal's consideration. Each of these Tables is in the Part A – Impairment section of the guide. The other part is Part B – Non-economic loss. Part A deals with the degree of the permanent impairment or loss of function resulting from an injury. A Part A assessment is an objective test. Part A of the Guide is based on the concept of "whole person impairment". That expression is defined in the Glossary as:
Whole Person Impairment means the medical effects of an injury or a disease and is drawn from the American Medical Association Guides where it is there referred to as 'whole man' impairment. Evaluation of whole person impairment is a medical appraisal of the nature and extent of the effect of an injury or disease on a person's functional capacity and on the activities of daily living. The Guides are structured by assembling detailed description of impairment into groups according to body system and expressing the extent of each impairment as a percentage value of the functional capacity of a normal healthy person. Thus a percentage value can be assigned to an employee's impairment by reference to the relevant description in this Guide.
Part B deals with the effect of that impairment on the person. It is a subjective test, rating such things as pain and suffering, loss of amenities, loss of expectation of life and other losses.
Table 9.6 is headed MUSCULO-SKELETAL SYSTEM and then follows a sub-heading "Spine (Percentage Whole Person Impairment)". The Table describes the level of impairment to each of the cervical and thoraco-lumbar spine separately. For the thoraco-lumbar spine, a 5% level of impairment assessment, there is to be "Minor restrictions of movement or Crush fracture – compression 25 – 50 percent", and for 10%, "Loss of half normal range of movement or Crush fracture – compression greater than 50 percent".
Table 13.1 applies to Intermittent Conditions (Percentage of Whole Person Impairment). The introduction to this Table indicates that its use "is for the assessment of disorders of the haemopoetic system (such as anaemia, polycythaemia, leucocyte and platelet disorders) and intermittent disorders such as asthma, migraine, tension headache, epilepsy etc." A 10% degree of impairment requires attacks to occur 12 or more times a year and cause minor interference with activities of daily living, or less frequent attacks which cause interference with all activities of daily living other than self care.
In the opinion of the Tribunal, in relation to Table 13.1, a person suffering, for example, 12 attacks of asthma or migraine or tension headaches or epilepsy, caused as a result of work place injury, would be assessed 10 percent whole person impairment under Table 13.1 but only if those attacks caused minor interference with activities of daily living – for example, in the case of migraine, a need to take an analgesic and rest. In the opinion of the Tribunal Table 13.1 is not about the level of pain induced from the disorder but about the frequency of or existence of the disorder. We say this because it was not clear to the Tribunal whether Mr Prast, for the applicant, was submitting that the level of pain resulting from a disorder is a relevant consideration in terms of Table 13.1. But in any event, in the opinion of the Tribunal, that would not be an issue in the present matter because it is conceded by the parties that the applicant's injury does cause him to experience pain levels at least 12 times a year, such that it interferes with his activities of daily living.
SubmissionsMr Prast, submitted that the evidence that the applicant suffered regular or frequent episodes of acute pain arising from the injury was incontrovertible. He submitted that those episodes are intermittent as contemplated by Table 13.1. Mr Prast submitted that the evidence supports the contention that the applicant suffers a permanent impairment, namely the injury, as contemplated by s24 of the Act. Therefore, he submitted, it is just a matter of examining Part A of the Guide to find a Table that fits the description of the impairment and as this is beneficial legislation it is not acceptable to search for reasons to deprive the applicant of an entitlement once an impairment is established. Mr Prast relies on the evidence of both Doctors Cardwell and Elder that the applicant has an impairment caused by soft tissue injury to the muscles of the spine, resulting from scaring and that pain on movement causes restrictions.
Mr Prast submitted that the Tribunal decision in Allen and Comcare [2000] AATA 152 (2 March 2000), a decision of Deputy President Burns, Dr M D Miller and Air Marshall I B Gration, Members, assists the applicant's case in relation to the relevance of Table 13.1. That case concerned an applicant who had experienced a permanent impairment in respect of hearing loss and tinnitus, which fitted within Tables 7.1 and 7.2 respectively, of the Guide. The applicant also experienced three additional symptoms associated with hearing (but not loss of hearing) accepted by the respondent, which, in that Tribunal's opinion did not fit within Tables 7.1 or 7.2. In the opinion of this Tribunal the facts of in Re Allen and Comcare are decidedly different to the present case and are so unique that the decision has no general application to an impairment of the kind here being considered, namely an impairment to the musculo-skeletal system embraced by Table 9.6 of the Guide.
In the alternative Mr Prast relies on the evidence of Dr Elder that the applicant suffers a 10 percent permanent disability from the injury as assessed under Table 9.6.
The discussion that follows adopts much of the submissions of Mr Allanson for the respondent.
DiscussionThe Safety and Rehabilitation Compensation Act 1988, Part II, Division 4, provides for the payment of a lump sum for permanent impairment. The degree of permanent impairment is to be determined by Comcare "under the provisions of the approved Guide". The guide prepared under s28 is binding on both Comcare and this Tribunal on review (s28(4) of the Act). Unless the degree of permanent impairment is determined to be 10 percent or more, compensation under s24 of the Act is not payable (s24(7)).
The dispute in this case is twofold. Firstly, which, if either, of Tables 9.6 and 13.1 is appropriate. As mentioned, the parties are agreed that if the Tribunal finds 13.1 is appropriate then, on the basis of the evidence, it is accepted that the applicant has a 10% permanent impairment under that Table. If, on the other hand it is decided that Table 9.6 is appropriate then it remains to be decided what is the degree of impairment arising from the injury. The Tribunal notes that where, as in this case, there is a single loss of function, then only one Table is applicable.
Table 13.1
The tribunal notes that the table is headed "Miscellaneous" and the preamble refers to:
"intermittent conditions"
for use in the assessment of disorders of the Haemopoetic System such as anaemia, polycythaemia, leucocyte and platelet disorders and intermittent disorders such as asthma, migraine, tension headaches, epilepsy etc. (emphasis added)
The Tribunal agrees with Deputy.President Burns in Haugh and Comcare [1999] AATA906 at 31-32 where he states:
31. … in certain circumstances, Table 13.1 may well be the relevant table under which to assess impairments of other parts of the body associated with a spinal impairment. In particular, Table 13.1 will be appropriate where the sequela of a spine condition does not affect the function of the upper limbs (Table 9.4) or lower limbs (Table 9.5) but affects some other function of the body associated with a bodily system other than the musculo-skeletal system. For example, were the applicant to experience headaches as a consequence of his back condition, Table 13.1 would be appropriate. This approach was, with respect, correctly adopted by the Tribunal in Re Leslie Allen Daniel and Department of Defence [1998] AATA 730, a case in which the applicant experienced recurrent occipital headaches as a consequence of cervical spondylosis. As the headaches were a sequela of the spine condition not affecting the musculo-skeletal system, the Tribunal quite properly looked outside the tables in Part 9 to assess the level of impairment and it did so under Table 13.1 which refers specifically to intermittent disorders such as asthma, migraine, tension headache, epilepsy etc … The applicant here does not experience headaches but right-sided sciatica causing impairment to his lower limb function. Hence, in light of a decision-making path which is expressly provided for in the Guide, the Tribunal would consider it inappropriate for it to look beyond the Tables in Part 9, and to invoke Table 13.1 in Part 13 headed "Miscellaneous" which, by implication, is designed to pick up impairments to the normal functioning of bodily systems, and arising from particular conditions, not specifically covered elsewhere in the Guide.
32.Were the Tribunal to be incorrect in regard to the applicability of Table 13.1, the Tribunal would indicate that, in any event, it has not been persuaded that right-sided sciatica would fall to be described as a "disorder" within the meaning of this term as it is understood in the parlance of the medical profession. In so far as an expression in the Guide is to be used "in the sense in which it is understood by medical practitioners" or "in the parlance of the medical profession", the Tribunal relies upon Comcare v Amorebieta (1996) 22 AAR 539 at 554.
Adopting those reasons of the Learned Deputy President, the Tribunal is not persuaded that the applicant's injury, right mid-paravertebral muscle tear, would fall to be described as a "disorder" of the genre contemplated by Table 13.1 and within the meaning of that word as it is understood in the parlance of the medical profession.
In Geoffrey Hughes-Brown and Comcare, AAT No 13552, [1998] AATA 972 (18 December 1998), a three member Tribunal presided over by Senior Member P Burton, said, in relation to the correct use of Table 13.1:
IS TABLE 13.1 APPLICABLE?
58.The tribunal has found that the applicant has a permanent condition which is static, but the symptoms of which are intermittent. Dr McGrath voiced his view that Table 13.1 of the Guide referring to "intermittent conditions" was also applicable to the applicant, his pain being provoked on activity from time to time. He said that he had not referred to that Table or made an assessment under it in his reports, as he had understood from previous experience that such an application of it was unacceptable to Comcare. It is suggested by the applicant's counsel that Table 13.1 is applicable. We do not agree. A condition of the type suffered by the applicant is not a condition of a kind envisaged by, or referred to, in the introduction to that Table. The applicant does not have an intermittent disorder of the kind referred to; and in any event, under that Table the frequency, duration and severity of attacks are to be determined with reference to the degree of interference with `activities of daily living'.
Earlier in its decision in Re Hughes-Brown, the Tribunal said:
We are of the opinion that a patient's history of intermittent symptoms of pain provoked by activity should not be taken into account for the purposes of assessing restriction of movement under Table 9.6, in the absence of any demonstrated restriction of movement on testing in the clinical situation. …
Demonstrated restrictions in movement resulting from pain or some mechanical restriction are allowed for under Table 9.6. … Table 9.6 allows only for the demonstrated restrictions of movement, and does not allow for the patient's subjective history to be taken into account. (refer paras 54 & 55)
For reasons that follow, in the Tribunal's opinion, the injury suffered by the applicant is properly assessed under Table 9.6 and for all the above reasons therefore, Table 13.1 is not relevant.
Table 9.6The applicant's injury is a muscular injury and the Tribunal finds that Table 9.6, which deals with impairments of the Musculo-skeletal System, is appropriate. The tribunal does not accept Dr. Cardwell's argument that the table only deals with bones and joints.
Doctors Cardwell and Elder found the movement of the thoraco-lumbar spine as a whole was within normal limits. Dr Edibam found some slight limitation of flexion in the thoraco-lumbar spine because of tight hamstring muscles.
The Tribunal does not accept Dr. Elder's contention that, in assessing under Table 9.6 of the Guide, one can look at each vertebra separately and assess it's limitations independently of the thoraco-lumbar spine musculo-skeletal system. It is clear from the cross-examination (supra) of Dr Elder by Mr Allanson that, in terms of a percentage of whole person impairment, that contention is untenable. For example, unless one is assessing, under Table 9.6 of the Guide the whole thoraco-lumbar spine (or cervical spine), what Dr Elder contended means when taken to extremes, that a person with normal overall movement in the thoracic and lumbar spine (such as the applicant) but has loss of half normal movement at 2 individual joints, is assessed as having a 10 percent or more whole person impairment. For reasons above, the Tribunal cannot accept that proposition. In any event, the Tribunal prefers the evidence of Dr Edibam that the level of the thoracic spine where the applicant has his injury is essentially rigid except on rotation and there was no evidence of the applicant experiencing any restriction on rotation at those levels. In the opinion of the Tribunal, whilst acknowledging that the applicant suffers pain arising from his injury, there is no discernable loss of movement in his thoraco-lumbar spine as a result of the injury. In sum, the Tribunal finds that the applicant has impairment of the right paravertebral muscles in the thoracic region that is unlikely to resolve. He has pain which is relieved by medication and there may be some "minor restrictions of movement" but not such as could meet the criteria in Table 9.6 for at least a 10 percent whole person impairment.
For the above reasons, pursuant to s43 of the Administrative Appeals Tribunal Act 1975, the decision under review is affirmed.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr R D Fayle, Senior Member
Dr P Staer, MemberSigned: ...............(sgd V Wong).............................
AssociateDate/s of Hearing 16, 17 May 2002
Date of Decision 2 July 2002
Counsel for the Applicant Mr C Prast
Solicitor for the Applicant Slater & Gordon
Counsel for the Respondent Mr J Allanson
Solicitor for the Respondent Blake Dawson Waldron