Jarman and Comcare
[2003] AATA 230
•12 March 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 230
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/1823
GENERAL ADMINISTRATIVE DIVISION ) Re Lynne Francis Jarman Applicant
And
Comcare
Respondent
DECISION
Tribunal Ms S M Bullock, Senior Member
Dr J D Campbell, MemberDate12 March 2003
PlaceSydney
Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 the decision under review is affirmed.
...............................................
Ms S M Bullock
Presiding Member
CATCHWORDS
WORKERS COMPENSATION – Low Back Injury – Permanent Impairment - Non-Economic Loss
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 4, 24, 27
REASONS FOR DECISION
12 March 2003 Ms S M Bullock, Senior Member
Dr J D Campbell, Member1. This is an application for review to the Administrative Appeals Tribunal (“the Tribunal”) made by the Applicant, Ms Lynne Francis Jarman, of a reviewable decision made on 16 October 2001 (T47) affirming a determination of a delegate of Comcare Australia, the Respondent, made on 28 April 2001 (T37) which decided that Mrs Jarman was not eligible for compensation for permanent impairment or non- economic loss.
2. The Hearing was held before the Tribunal in Sydney on 21 June 2002 . The Applicant provided oral evidence and was represented by Dr H R Sorensen of Counsel. The Respondent was represented by Mr N Polin of Counsel. Documents were lodged and taken into evidence pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“T Documents”, T1-T51) and the following exhibits:
EXHIBIT NO
DESCRIPTION
DATE
A1
Report of Dr P E Giblin, Orthopaedic Surgeon
14 February 2002
A2
Two Reports of Dr M S Memon, Orthopaedic and Medico-Legal Consultant
17 July 2001
A3
Report of Dr D M Salmon, Pain Management Consultant
8 November 2000
R1
Two reports of Associate Professor R J Oakeshott, Rehabilitation Specialist
4 March 2002
R2
Report of Associate Professor R J Oakeshott, Rehabilitation Specialist
16 April 2002
ISSUES
3. The issue in this matter is whether or not Mrs Jarman is entitled to compensation for permanent impairment of her lower back and non-economic loss.
LEGISLATION
4. A decision in this matter requires consideration of the provisions of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).
5. Section 4 of the Act deals with interpretation and of specific relevance to this matter is the definition of injury contained within subsection 4(1) of the Act which states:
“injury means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment..”
6. Section 24 of the Act deals with compensation for injuries resulting in permanent impairment and states:
“24 Compensation for injuries resulting in permanent impairment
(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee's condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
(3)Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4)The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5)Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6)The degree of permanent impairment shall be expressed as a percentage.
(7)Subject to section 25, 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.
…”
7. Section 27 of the Act deals with compensation for non-economic loss and states as relevant:
“27 Compensation for non-economic loss
(1)Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
(2)The amount of compensation is an amount assessed by Comcare under the formula:
[$15,000 x A] + [$15,000 x B]
where:
A is the percentage finally determined by Comcare under section 24 to be the degree of permanent impairment of the employee; and
B is the percentage determined by Comcare under the approved Guide to be the degree of non-economic loss suffered by the employee.
…”
EVIDENCE OF MRS LYNNE FRANCIS JARMAN
8. Mrs Jarman’s date of birth is 20 August 1959. She was employed by the Department of Defence as a Storeperson/General Service Officer commencing on 17 June 1998. On 15 July 1999, Mrs Jarman suffered an injury to her back when she lifted some kitchen burners onto a pallet. Mrs Jarman was off work from 15 July 1999 until 2 August 1999 and resumed work on light duties which involved her sitting at a computer all day, she stated.
9. Mrs Jarman stated that prior to the 1999 incident, she did not have any problems with her back but noted that in 1985 after she had a baby, there was some difficulty with her back when the baby was approximately three months old. Mrs Jarman related an incident at that time when she had picked up the baby’s bath tub and then could not straighten up. Mrs Jarman had had “ray” treatment and the symptoms lasted for approximately one week. Mrs Jarman noted a further incident when working at TAFE when she experienced temporary back pain when putting on her clothes. Mrs Jarman did not recall any other problems between 1993 and 1995 when she was working at TAFE and did not recall not disclosing any previous back problems. Later in evidence, Mrs Jarman noted that Dr Low, General Practitioner, whom she had consulted since 11 March 1996, had reported low back problems on 11 March 1996, 4 November 1996 and 23 October 1997 following a “twisting injury” (T31).
10. Mrs Jarman could not recall the specific incident in 1997. Having been reminded of these further incidents of prior back pain, Mrs Jarman stated that the difference with those conditions is that the pain went away, but with the July 1999 incident at the Department of Defence, the pain stayed. Mrs Jarman also distinguished that the pain she experienced prior to 1999 was in the form of spasm or cramp and she would be told to rest and after a short period of days, the pain would go.
11. Mrs Jarman noted that she had consulted other doctors about her lower back condition. Namely, Dr R Nall, Consultant Orthopaedic Surgeon, Dr P E Giblin, Orthopaedic Surgeon, Dr M S Memon, Orthopaedic and Medico-Legal Consultant and Dr D M Salmon, Pain Management Consultant, but could not recall if she told these doctors of previous lower back problems.
12. Mrs Jarman stated that when she was examined by Associate Professor R J Oakeshott, she had not been working for a month and it was a relatively good day for her in terms of the pain she was experiencing. Mrs Jarman also has consulted Dr D Crocker, Consultant Occupational Physician, because Comcare sent her to him. She could not remember what she had told Dr Crocker and, apart from temporary back problems with her second pregnancy, he had not reported on previous back problems (T5). Mrs Jarman stated that she saw Dr Crocker monthly because she was sent to him. Mrs Jarman also stated that she did what Dr Crocker asked her to do during the examination and did her best to tell him the truth. Mrs Jarman acknowledged that she did her best with walking during the examination on 13 September 1999. Mrs Jarman told the Tribunal that she cannot walk “one or three miles” because of the problem in her lower back and shooting pains down her right leg. She stated that she has never had the right leg symptoms previously.
13. Mrs Jarman remembered being examined by Dr Giblin on two occasions. Dr Gilbin recommended that Mrs Jarman obtain an MRI scan. Mrs Jarman was examined by Dr Salmon on four or five occasions, she believed. When Mrs Jarman consulted Dr Salmon, it was a “medium” day and Mrs Jarman stated that she probably did all that was asked of her as best she could. Dr Salmon referred Mrs Jarman to a pain management psychologist who helped her be assertive because she felt “bad” being on compensation. It helped Mrs Jarman, she told the Tribunal, to talk matters through with the psychologist. Another doctor, Dr R F Ayscough, Medical Practitioner, sent her to Patrick Cormack in Liverpool to undertake manipulative therapy, specifically, mobilisation of the right S1 joint, manual therapy of the lower lumbar facets at L4/5 and L5/S1 combined with muscular work on ham strings, gluteals, thoraco lumbar extensors, right shoulder girdle, trapezius and pectorals (T43, p132). Mrs Jarman was also prescribed “Prothiaden” but ceased this in 2002.
14. After the July 1999 incident, Mrs Jarman stated that she had pain every single morning and at night. The pain did not leave her, she stated. Mrs Jarman described finding great difficulty sleeping despite buying a very firm mattress. She stated that she would wake up about three times per night in pain and it was difficult to turn over. Mrs Jarman explained that she could hardly breathe at times because of the pain she experiences, particularly when she wants to turn over. Mrs Jarman stated that she takes medication of two “Panadeine Forte” tablets and three “Restavit” and a glass of wine at night to assist her to sleep. Mrs Jarman has applied “Voltaren” cream to her back, also takes “Somac” for an ulcer and medication for her thyroid. Mrs Jarman was attending physiotherapy twice per week but in the month prior to hearing was undertaking physiotherapy once a fortnight. She does not participate in hydrotherapy at this time. Mrs Jarman had also ceased attending the “Back in Action” Centre, as this was taking up too much time. Mrs Jarman described waking up in agony each morning but the pain is not constant. She finds some relief as she has done in the past letting the warm water in the shower run over her back and also by trying to stretch.
15. Mrs Jarman stated, “I drag myself to work”. When there is no pain which does occur from time to time, Mrs Jarman stated that she is quite good. She estimated that she has bad days in terms of pain, at least once per month and at those times, she wants to put an axe through her back. Despite these difficulties, Mrs Jarman does not miss much work. She does not want to “bludge” and works when she is in pain. The pain increases during the working week and she stated that by Wednesday, there is more and more pain, and by Saturday she is “wiped out”. Monday is a better day for her because she has had a rest over the weekend.
16. At work, from 6:00 am until 3.20 pm, Mrs Jarman’s duties include working at a conveyor belt. She has to lift little buckets up and inspect material in them and if everything is all right, replace them on the conveyor belt. Mrs Jarman estimated that the bucket weighs approximately five kilograms. After 20 minutes of this work, Mrs Jarman has to get up and walk around. Mrs Jarman stated that she takes breaks every 20 minutes as advised by Dr Salmon. Dr R F Ayscough has referred her for physiotherapy and hydrotherapy and light gymnasium work, but she was not doing the light gym work at the time of the hearing. Mrs Jarman explained that it is hard for her to fit everything she needs to do in the day. Mrs Jarman last consulted Dr Ayscough approximately one month before the hearing.
17. At home, Mrs Jarman stated that she can hardly make the beds and her husband changes the sheets and either her daughter or husband will hang out the washing. Mrs Jarman starts the cooking but cannot finish it because of pain. She is unable to do the shopping apart from a few light items. Mrs Jarman stated that she is able to vacuum with an upright vacuum. She is unable to sweep and never gardens. Mr Jarman has in fact always undertaken the gardening activities.
18. Mrs Jarman told the Tribunal that she has hobbies of playing the guitar and drums and that she used to go to church twice on Sunday. This was her social outing, she explained. Mrs Jarman now only attends church at night. She cannot play the drums for church because this aggravates her back. She will undertake some drum workshops from time to time. Mrs Jarman used to drive to church but cannot do this anymore as pressing the clutch with her foot aggravates her lower back pain. At work Mrs Jarman is unable to drive the forklift because the vibration of the seat also causes her back pain.
19. Mrs Jarman told the Tribunal that she recently moved house. She directed where items of furniture and boxes were to go and was able to lift some light boxes. The removalists and family members undertook the majority of the move.
20. Mrs Jarman stated that in the past she has consulted an osteopath who undertook some manipulations over three days. This occurred when Mrs Jarman was working at TAFE. The next consultation with the osteopath was in July 1999.
21. In terms of counselling activities for her pain, Mrs Jarman consults a church counsellor and they talk mainly about her pain. On the day of the hearing, Mrs Jarman stated that she was having a good day in terms of the level of back pain she was experiencing.
MEDICAL EVIDENCE
Dr D Crocker, Occupational Physician
22. Dr Crocker provided an initial report dated 13 September 1999 (T5). Dr Crocker continued to review Mrs Jarman, providing further reports dated: 20 September 1999 (T6); 18 October 1999 (T7); 23 November 1999 (T8); 17 December 1999 (T9); 2 February 2000 (T11); 28 March 2000 (T14); 4 April 2000 (T15); 7 April 2000 (T16); 12 May 2000, (T18); an undated report (T20); 20 June 2000 (T22); 17 July 2000 (T24); 14 August 2000 (T25); 8 September 2000 (T26); 24 October 2000 (30); 18 December 2000 (32).
23. In his first report (T5), Dr Crocker noted that as at 13 September 1999, Mrs Jarman was employed as a Storeperson/General Service Officer Grade 3 working on a full-time basis in a Department of Defence Warehouse at Moorebank. Her duties included: issues to the workshop, receipt from the workshop, issues to inspectors, receipts from inspectors, receipts from outside units, stocktaking and housekeeping. Dr Crocker noted that previously, Mrs Jarman was employed as a Storeperson at the Miller and Wetherill Park TAFE facilities working two years full-time and two years part-time. She had previously worked as a private bus driver for four years in Queensland, as a motor mechanic for approximately four years and a member of the Army Reserve. Mrs Jarman had completed a four year apprenticeship to become a motor mechanic studying at the Miller TAFE. Mrs Jarman had attended secondary school to Year 10 completing the School Certificate and had commenced an electrical trade course which was incomplete but which she had continued for one year.
24. In relation to Mrs Jarman’s present complaint, Dr Crocker noted that on 15 July 1999, Mrs Jarman was at work with the Department of Defence and was accessing kitchen burner units in the stores, which weighed 22 kilograms. Mrs Jarman was lifting these units without assistance onto a fork lift and stated that on the day in question she had handled eight out of 19 units. Mrs Jarman had explained that she needed to twist around in an awkward manner and when doing so she felt a tightening to her back with sudden severe pain to the mid to low lumbar region, more marked on the right side. Mrs Jarman was attended by a Safety Officer who took her to a nearby medical practice where she was examined by a Dr S Khan, General Practitioner. X-rays on the day revealed no abnormality and she was certified unfit for that day with a diagnosis of “lumbar strain”. Panadeine Forte tablets were prescribed as was a topical cream. Later, a CT scan was arranged and she was also referred to Ms P Landon, Osteopath of Pagewood. On 21 July 1999, Ms Landon reported that Mrs Jarman was suffering from a right lateral torsion of the pelvis, contributing to the right rotation of the lumbar vertebrae with spasm of the paraspinal muscles. Ms Landon undertook manipulations which provided Mrs Jarman with symptomatic relief. Dr Crocker noted that Mrs Jarman was initially certified unfit for work from 16 to 25 July 1999 with a return to alternate duties on 26 July 1999. Mrs Jarman was again unfit for work from 27 July until 2 August 1999. The alternate duties identified were office-based duties. Dr Crocker noted previous back pain subsequent to Mrs Jarman’s second pregnancy, but the symptoms reportedly only persisted for a few weeks.
25. Dr Crocker opined that at the time of the initial examination, Mrs Jarman had sustained an acute musculoligamentous strain injury in the region of the lower lumbar spine. Dr Crocker considered that Mrs Jarman continued to make satisfactory progress with a full recovery expected. It was appropriate in terms of treatment for Mrs Jarman to undertake hydrotherapy and swimming. Mrs Jarman was to continue office-based duties with further assessment in late September 1999. Mrs Jarman was advised to maintain a variety of work postures including getting up for a short walk or undertaking a different activity every half an hour. Her chair also needed to be reviewed.
26. Dr Crocker continued to review Mrs Jarman throughout 1999 and 2000. On 18 December 2000 (T32), Dr Crocker reported Mrs Jarman’s symptoms of “stiffness” in the region of the right loin and discomfort affecting the lower interscapular region and right lower limb. There was discomfort to the right side of the neck posteriorly. Dr Crocker noted that Mrs Jarman was continuing to attend physiotherapy once per week and was undertaking swimming and some exercises. She was applying “Voltaren Emulgel” to her neck and back. Physical examination of Mrs Jarman demonstrated no obvious distress at rest, Dr Crocker reported. Truncal range of movement was satisfactory and there was nil restriction with straight leg raising. Dr Crocker concluded that Mrs Jarman presented in a reasonably stable manner and that she should continue to perform her alternate work duties with normal hours. Dr Crocker noted that there was uncertainty in relation to the possible offer of onsite redundancy and he considered that the rehabilitation case closure was appropriate at that time. Further input at a later date may, Dr Crocker opined, be considered if it appeared necessary.
Dr P E Giblin, Orthopaedic Surgeon
27. Dr Giblin has provided a number of reports in relation to Mrs Jarman. On initial examination in January 2000 (T10), Dr Giblin noted that as a result of an injury on 15 July 1999, Mrs Jarman complained of right sided back pain and had no previous history of similar symptoms or injuries. Dr Giblin noted a discrepancy between her symptoms and signs. There are normal plain x-rays and a CT Scan showed mild disc bulging at S/1. MRI scan revealed L4/5 disc dehydration and L5/S1 disc bulging, but with no need for surgical intervention (T13). In his report of 16 May 2000 (T28, p79), Dr Giblin opined that Mrs Jarman’s condition was stable and that her back would be more susceptible to both repeats of soft tissue injury in the future as well as the onset of accelerated post-traumatic degenerative change as a result of the July 1999 incident. Dr Giblin concluded as a result of Mrs Jarman’s work injury and not withstanding any age-related or other pre-existing changes, she had an 18 per cent permanent impairment of the back, with 7.5 per cent permanent loss of efficient use of each leg at or above the knee, taking into account all symptoms in each leg as a whole (T28, p80).
28. On 14 February 2002, Dr Giblin reported that the diagnosis of Mrs Jarman’s condition is discogenic back pain and not acute muscular ligamentous strain injury in the lumbar spine. Referring to the report dated 26 February 2001 by Dr R Nall, Consultant Orthopaedic Surgeon (T35), and his opinion that by being grossly overweight, Mrs Jarman compounded her back problem, Dr Giblin opined that it would be more reasonable to postulate that general unfitness may lead to a propensity for increased low back symptoms, but that obesity in itself is only a medical excuse. Dr Giblin agreed with Dr Nall that there is no underlying pre-existing condition prior to 15 July 1999. Dr Giblin opined that Mrs Jarman has a ten per cent impairment and not a five per cent whole person impairment as concluded by Dr Nall. Dr Giblin opined that whilst desiccation of the discs may be a normal ageing process, it can also be a radiological feature consistent with soft tissue injury and, in Dr Giblin’s view, the MRI scan findings are consistent with Mrs Jarman’s history of injury, symptom complex formation and associated disability. Dr Giblin agreed with Dr Crocker’s opinion that Mrs Jarman is fit to continue with restricted work duties and it would be equally reasonable for the rehabilitation processes to be made available to her to remain at work (Exhibit A1).
Dr D M Salmon, Pain Management Consultant
29. Dr Salmon provided three reports dated 13 June 2000 (T21); 5 July 2000 (T23); and, 26 September 2000 (T27). In his initial report, Dr Salmon opined that as a result of lifting, Mrs Jarman experienced a “thoraco-lumbar strain injury with resultant musculo-skeletal pain”.. There is no requirement in Dr Salmon’s opinion to change the recommendations for Mrs Jarman’s employment, but it was appropriate for her reactive depression to be addressed further (T21). Dr Salmon subsequently noted on 5 July 2000 that Mrs Jarman was continuing to take Prothiaden, 25mg nocte, Paracetamol and occasional Panadeine Forte. Mrs Jarman was also taking 200mg Celebrex and Somac for a gastric disorder. Dr Salmon noted that arrangements were made for Mrs Jarman to have psychological assistance to prepare her for further upgrading of her duties. She was urged to continue home exercises and advised that the provision of medication to assist her perform full duties was not optimal management (T23).
30. In his report of 8 November 2000 (Exhibit A3), Dr Salmon opined that Mrs Jarman has a musculoligamentous injury as a result of overload through repetition and weight. Mrs Jarman should continue to perform light duties with a lifting restriction of five kilograms. She should also have frequent changes in position and have an ergonomically sound work station. Mrs Jarman’s injuries are caused and aggravated by her employment, Dr Salmon concluded. Dr Salmon further noted that 14 months after the injury, Mrs Jarman is still reporting symptoms and was depressed at the situation in which she found herself, particularly the possibility of retrenchment due to restructuring. There has been improvement over a period of time, with increased improving tolerances. There is however an underlying impairment of Mrs Jarman’s back, Dr Salmon concluded. Dr Salmon opined that Mrs Jarman has a permanent impairment of the back of 20 per cent.
Dr K Low, General Practitioner
31. Dr Low is Mrs Jarman’s General Practitioner. Dr Low provided a report dated 6 November 2000 (T31), noting that Mrs Jarman initially saw him on 4 April 1999 with low back pain. Dr Low noted that on “17 July 1999”, Mrs Jarman bent down at work to pick up a kitchen set, estimated to weigh approximately two kilograms at work, twisting her lower back. Dr Low noted that over the next several months, Mrs Jarman returned to him with recurrent pains including in her thoracic spinal area. A colleague of Dr Low’s, Dr Demasi, diagnosed facet joint dysfunction and continued conservative treatment of “NSAIDs, analgesic and physiotherapy”. Essentially, treatment was conservative and Mrs Jarman was also referred to Dr Salmon for pain management. Dr Salmon suggested psychological counselling to deal with Mrs Jarman’s secondary stress and depression. Dr Low noted that Mrs Jarman was seen on several other occasions with back pain prior to the July 1999 injury. Thus, on 11 March 1996 and 4 November 1996, Mrs Jarman presented with lower back pain without a precipitating factor. On 23 October 1997, Mrs Jarman also presented with lower back pain due to a twisting injury and had back manipulation undertaken by a chiropractor. Dr Low opined that because of the previous back pain incidences, it was difficult for him to ascertain how much of the incident of July 1999 contributed to her present back pain.
Dr R Nall, Consultant Orthopaedic Surgeon
32. Dr Nall provided a report dated 26 February 2001 (T35). Dr Nall examined Mrs Jarman on 22 February 2001. Dr Nall opined that Mrs Jarman has recurrent pain arising from the lumbo-sacral facet joint and this is indicated by the pain on extension of her spine. The condition is a painful, self-limiting disease and the pain, when present, can be quite severe. Dr Nall opined that there is unlikely to be any deterioration, although her condition is compounded by her being so overweight. On balance, Dr Nall concluded that there was no underlying or pre-existing condition which was aggravated by the injury on 15 July 1999. Mrs Jarman’s continuing symptoms are consistent with the diagnosis of facet joint syndrome. Considering the MRI scan undertaken on 23 February 2000, Dr Nall did not consider that the July 1999 injury caused the condition shown on that scan. He concluded that desiccation of the discs is a normal ageing process and may be compounded by her being overweight. Dr Nall further opined that he was not sure whether Mrs Jarman has discogenic mechanic back pain, although this is a possibility. Mrs Jarman is suffering the effect of the injury of 15 July 1999 and her condition, Dr Nall opined, may be considered to have stabilised. He further opined that it is likely that Mrs Jarman will experience attacks of similar pain in the future, probably associated with twisting or high load stresses on her back. Dr Nall concluded that Mrs Jarman’s recovery has essentially been achieved but is intermittent. It is the nature of the condition that facet joint pain tends to give rise to recurrent episodes of pain which resolve over a period of two or three weeks. Dr Nall opined that Mrs Jarman has a five per cent whole person impairment and not 10 per cent whole person impairment. Although Dr Nall did not consider that there would be significant deterioration in Mrs Jarman’s present clinical condition, he noted that because of her gross obesity, her spine remains at risk in the future.
Dr R F Ayscough, Medical Practitioner
33. Dr Ayscough provided four reports dated 3 August 2001 (T43); 17 August 2001 (T44); 28 September 2001 (T46); and 2 November 2001 (T48). On 3 August 2001, Dr Ayscough opined that Mrs Jarman is suffering from a pelvic disorder involving the right sacro illiac joint which has been reinforced by muscular dysfunction over the intervening period. Dr Ayscough noted that this would also be called “Layer” syndrome which is characterised by tightness in the hamstrings, insufficiency in the gluteals, tightness in the thoraco lumbar extensors, insufficiency around the shoulder girdle and tightness in the trapezius and pectoral musculature anteriorly. Dr Ayscough referred Mrs Jarman for mobilisation of the right S1 joint and manual therapy of the lower lumbar facets at L4/5 and L5/S1 combined with muscular work on the hamstrings, gluteals, thoraco lumbar extensors, right shoulder girdle, trapezius and pectorals (T43). On 28 September 2001, Dr Ayscough opined that looking at Mrs Jarman’s range of duties, he could see no major physical reason why she could not undertake the duties she would normally perform and felt that it would be tangible proof of her ability to get better and move towards her old situation. He noted that Mrs Jarman was going to consult with her occupational physician with regard to alterations and restrictions (T46). On 2 November 2001, Dr Ayscough noted that Mrs Jarman was taking antidepressant medication, was experiencing some insomnia and he suggested that she increase her dose of Prothiaden to 50mg at night and later increasing it to 75mg after a week or ten days. Dr Ayscough also recommended that Mrs Jarman consult psychologist, Ms L Simpson (T48).
Dr M S Memon, Orthopaedic and Medico-Legal Consultant
34. Dr Memon provided two reports dated 17 July 2001 (Exhibit A2). Dr Memon noted a history of low back injury on 15 July 1999 at work. He also noted previous acute back pain approximately 16 years ago which settled with rest after approximately one week. There was also back pain four years ago which also settled completely. Dr Memon opined that Mrs Jarman presented with signs and symptoms consistent with musculo-ligamentous strain of the back following injury on 15 July 1999. Dr Memon concluded that his interpretation of a recent MRI is that there was some disc bulging at L5/S1 but noted that his interpretation of the MRI films may differ from the radiologists report. Dr Memon opined that there is the potential that the disc lesion may progress and cause future degenerative changes making the long term prognosis undesirable. Dr Memon noted that Mrs Jarman is likely to experience variable back pain in the future and that it would be advisable that she seeks permanent light duties. As a result of injury on 15 July 1999, Mrs Jarman has a 20 per cent whole person impairment under Table 9.5 of the “Guide to the assessment of the degree of permanent impairment” (“the Guide”).
Associate Professor R J Oakeshott AM, Rehabilitation Specialist
35. Associate Professor Oakeshott provided two reports dated 4 March 2002 (Exhibit R1) and a report dated 16 April 2002 (Exhibit R2). Associate Professor Oakeshott opined in a report of 4 March 2002 that Mrs Jarman does not have a minor restriction of back movement related to any alleged injury to her back. Associate Professor Oakeshott considered that Mrs Jarman’s present back movements would have been the same now whether or not the injury had occurred at work on 15 July 1999. When Mrs Jarman demonstrated back movements, she did not complain of any significant back discomfort, Associate Professor Oakeshott reported. Radiological investigations confirmed that Mrs Jarman does not have disc pathology in her lower back. (Exhibit R1).
36. Associate Professor Oakeshott opined that Mrs Jarman did not have a permanent impairment of the back and thus a zero permanent impairment in relation to the spine was appropriate. In his later report of 16 April 2002, Associate Professor Oakeshott noted Dr Memon’s report, dated 17 July 2001, in which Dr Memon documented that Mrs Jarman had a full range of movement of her spine. Associate Professor Oakeshott agreed with Dr Memon in that Mrs Jarman did not have any significant loss of range of spinal movement when Associate Professor examined her on 4 March 2002. Accordingly, Associate Professor Oakeshott could not agree with Dr Giblin’s assessment of a 10 per cent whole person impairment in regard to her spine from Table 9.6 of the Guide. Furthermore, Associate Professor Oakeshott could not agree with the 20 per cent whole person impairment from Table 9.5 as assigned by Dr Memon. When Associate Professor Oakeshott examined Mrs Jarman, she had no left or right leg symptoms. Nor did she have any objective clinical signs in either leg. Associate Professor Oakeshott noted that Dr Memon did not document any evidence that Mrs Jarman had difficulty with grades, steps or distances and Dr Giblin also did not note any impairment of either leg. Having read Dr Salmon’s report, dated 8 November 2000, Associate Professor found nothing in that report to cause him to alter his opinion (Exhibit R2).
SUBMISSIONS
37. Dr Sorensen referred the Tribunal to Dr Giblin’s reports of 16 May 2000 and 10 August 2000. Dr Giblin assessed Mrs Jarman as having a ten per cent whole person impairment from Table 9.6 of the Guide which for the thoraco-lumbar spine requires as relevant the loss of less than half the normal range of movement. In the report of 16 May 2000, Dr Giblin had noted an assessment of 18 per cent impairment of the back with 7.5 per cent permanent loss of efficient use of the leg at or above the knee taking into account all symptoms in each leg as a whole (T28, p80). Dr Sorensen submitted that it is not apparent from Dr Giblin’s report how he arrived at this later assessment. Referring to Exhibit A1, Dr Giblin notes that the issue raised of Mrs Jarman being overweight but considers this as a medical excuse.
38. Referring to Dr Nall’s report of 26 February 2001 (T35), Dr Sorensen submitted that this examination revealed a full range of movement of Mrs Jarman’s back and no abnormality in respect of Mrs Jarman’s lower limb. Dr Nall considers Mrs Jarman’s symptoms consistent with the work injury on 15 July 1999 but that there was no underlying pathology. Dr Sorensen contended that the 10 per cent whole person impairment opined by Dr Giblin is more likely, especially noting that Dr Giblin, having considered Dr Nall’s report, concluded that desiccation of the disc while possibly being related to the normal ageing process, may also be a radiological feature consistent with soft tissue injury, which in Mrs Jarman’s case is consistent with her history of injury, symptom complex formation and associated disability.
39. Considering Dr Memon’s reports (Exhibit A2), Dr Sorensen submitted that the examination conducted by Dr Memon does not reveal a great deal. There was full range of movements with pain on flexion and extension and normal straight leg raising bilaterally. Dr Sorensen noted that the assessment of 20 per cent whole person impairment from Table 9.5 of the Guide requires being able to rise to a standing position and walk but having difficulty with grades, steps and distances.
40. Dr Sorensen submitted that the Applicant’s case primarily relies on Table 9.6 of the Guide for the thoraco-lumbar spine. Referring to Associate Professor Oakeshott’s opinion, Dr Sorensen noted that Associate Professor Oakeshott is a rehabilitation specialist and Dr Giblin is an orthopaedic surgeon. Dr Giblin had not considered Associate Professor’s Oakeshott’s report, whereas Associate Professor Oakeshott had the benefit of considering Dr Giblin’s and Dr Memon’s reports. While Associate Professor Oakeshott’s clinical findings were noted, Dr Sorensen noted that the evidence from Mrs Jarman is that when she was examined by Associate Professor Oakeshott, this was on a good day. This clinical examination had to be considered in relation to the whole of the evidence, Dr Sorensen submitted, including the severe restrictions Mr Jarman’s back condition has on her domestic life with pain.
41. Dr Sorensen submitted that Mrs Jarman is a credible witness and there was no challenge to this. Mrs Jarman has incapacity and as Dr Nall opined, the symptoms are not going to go away. The issue is which medical assessment will be accepted, with Dr Sorensen’s contention that Dr Giblin’s opinion and assessment were to be preferred. From Table 9.6 of the Guide, Dr Sorensen submitted that Mrs Jarman has a ten per cent impairment as noted in Dr Giblin’s report dated 14 February 2002 (Exhibit A1).
42. Mr Polin for the Respondent submitted that a number of doctors have a history of Mrs Jarman experiencing prior back pain before the injury on 15 July 1999, citing the example of the back pain experienced at TAFE and as a result of a pregnancy. Dr Nall and Associate Professor Oakeshott did not know of prior problems. Mr Polin submitted that when one considers Mrs Jarman’s oral evidence and the documentary evidence as a whole, there are some matters which are not believable. The evidence as a whole must be weighed up.
43. The Tribunal was referred by Mr Polin to the report of Ms P Landon, Osteopath, who on 21 July 1999 noted that after two treatments, much of the discomfort in Mrs Jarman’s lower back had subsided (T3, p13). Furthermore, on 2 February 2000, Dr Crocker noted that Mrs Jarman had made some improvement in her back symptoms and was at that time only experiencing pain for 50 per cent of the time (T11, p45). On 16 November 2000, Dr Crocker noted that Mrs Jarman was experiencing “hardly any pain now in the back” (T34, p109). Considering Associate Professor Oakeshott’s reports, he reported a history of relatively minor symptoms and no leg symptoms. Mr Polin submitted that it is difficult to reconcile this documentary evidence based on examination with Mrs Jarman’s own oral evidence to the Tribunal. Associate Professor Oakeshott also reported a good range of movement.
44. In terms of the range of movement, Dr Giblin is the only doctor, Mr Polin submitted, finding a loss of half the normal range of movement of the spine. Dr Crocker reported a normal range of movement on 17 December 1999 (T9, p43) and this continued in 2000. Dr Salmon reported a good range of movement on 13 June 2000 (T21, p65). Dr Nall in his report of 26 February 2001 (T35, p114) also reports a full range of movement of Mrs Jarman’s back, which was pain free, apart from extension which caused low back pain. Considering Dr Memon’s reports, there was also a conclusion of full range of movement of the spine with some pain on extension (Exhibit A2). Thus, all of the doctors apart from Dr Giblin, do not report restriction in the range of movement and do not come anywhere near the loss of half the range of movement as noted by Dr Giblin. Thus, Mr Polin submitted, Dr Giblin stands alone with his assessment of the loss of the range of movement. It is markedly different from all other doctors reporting in this matter. While Mrs Jarman noted that she had a good day in terms of little pain when she was examined by Associate Professor Oakeshott, this was also the case with the other doctors who noted no loss of range of movement, Mr Polin contended. Mr Polin submitted that perhaps Dr Giblin’s assessment of Mrs Jarman was made using the New South Wales Compensation Tables.
45. Considering Dr Salmon’s assessment, Mr Polin noted that Dr Salmon assessed Mrs Jarman as having a 20 per cent impairment but made no reference to the requisite Guide and its Tables. In relation to Dr Memon’s assessment under Table 9.5 of the Guide, which deals with the limb function of the lower limbs, a 20 per cent impairment requires there to be difficulty with grades, steps and distances, but being able to rise to a standing position and walk. Mr Polin submitted that Dr Memon’s rating is not justified as there is no statement about Mrs Jarman having any difficulty with grades, steps or distances. Mr Polin further submitted that Dr Crocker, Dr Nall and Associate Professor Oakeshott also do not report leg symptoms. Mr Polin asked how is it that given what is reported in the longer report of 17 July 2001, in which there is no report of difficulty with grades, steps and distances, in Dr Memon’s shorter report of 17 July 2001 (Exhibit A2), he concludes that Mrs Jarman has a 20 per cent whole person impairment from Table 9.5 of the Guide. There is simply no explanation for this assessment. Dr Memon had noted in his longer report that Mrs Jarman was able to walk on her heels and toes without difficulty and that straight leg raises and hip movements were within normal limits.
46. Mr Polin submitted that Associate Professor Oakeshott and Dr Nall more correctly assessed Mrs Jarman under the Guide. Dr Nall assessed Mrs Jarman as having minor restrictions but on clinical examination, there was no reduction of range of movement, thus supporting a five per cent assessment under Table 9.6 of the Guide. Associate Professor Oakeshott assessed a nil impairment on either Table 9.5 or 9.6 of the Guide. Certainly, on all of the evidence, Mr Polin contended that there could be no rating under Table 9.5 of the Guide. Mr Polin submitted that in all of the circumstances, the decision under review should be affirmed.
FINDINGS
47. The Tribunal has reached a decision in this matter, taking into account the oral and documentary evidence, the legislation and case law.
48. The Tribunal finds that Mrs Jarman provided evidence to the best of her ability.
49. The issues in this matter are whether or not compensation should be paid for permanent impairment for which, under the legislation, there must be a minimum 10 per cent whole person assessed under the Guide and whether or not compensation should be paid for non-economic loss.
50. Mrs Jarman’s evidence is of having good and bad days in terms of the pain and restrictions she experiences in the low back and lower limbs. It is accepted by the Tribunal that Mrs Jarman does have low back symptoms referrable to the original injury on 15 July 1999. The Tribunal must determine from the medical assessments and Mrs Jarman’s evidence, the correct level of whole person impairment under the Guide.
51. Dealing first with the assessment provided by Dr Memon of 20 per cent whole person impairment under Table 9.5 of the Guide, the Tribunal does not consider that this impairment can be made out on the evidence. While assessing a 20 per cent impairment under Table 9.5 of the Guide, Dr Memon notes no difficulties with grades or steps, which is required by such a rating and furthermore in his clinical examination notes that movements were full range with some pain on flexion and extension and with straight leg raising being normal bi-laterally. There were normal reflexes with slightly diminished sensations over the left big toe. Dr Memon noted pain radiates in the right leg with numbness in the left big toe and pain increasing when walking or sitting for long periods or when bending or lifting. On this description, a rating of 20 per cent under Table 9.5 of the Guide cannot be made out.
52. Considering Dr Giblin’s rating of ten per cent whole person impairment from Table 9.6 of the Guide which requires for the thoraco-lumbar spine, a loss of less than half the normal range of movement, the Tribunal does not consider that on the evidence, such a rating is sustained. While Dr Giblin notes that the MRI scan findings are consistent with Mrs Jarman’s history of injury, symptom complex formation and associated disability, he also notes extension of the lumbar spine being less than half normal (T28). This assessment appears to be at odds with other doctors’ assessments of Mrs Jarman’s range of movement.
53. The Tribunal finds that Dr Salmon’s assessment of 20 per cent impairment of the back is not referrable to any Table of the Guide with no explanation or justification for this assessment of impairment.
54. Associate Professor Oakeshott found no loss of range of spinal movement as did Dr Memon. Associate Professor Oakeshott found no left or right leg symptoms, and could not agree, on his understanding of the documentary evidence combined with his own clinical examination of Mrs Jarman, that the assessment made by Dr Giblin of 10 per cent whole person impairment from Table 9.6 of the Guide or Dr Memon’s impairment of 20 per cent from Table 9.5 of the Guide could be justified. It would appear that Associate Professor Oakeshott did not have the benefit of considering Dr Nall’s report.
55. The Tribunal notes the investigation of the MRI scan of the thoraco columnar spine on 23 April 2000 with a finding of no abnormality. The CT scan of the lumbar spine dated 17 July 1999 found no abnormality and x-rays undertaken on 15 July 1999 indicated no abnormality with the lumbar sacral spine.
56. The Tribunal considers that Dr Nall’s assessment reflects the more realistic and comprehensive consideration of Mrs Jarman’s back and limb condition. Dr Nall noted in 2001, as noted by Associate Professor Oakeshott in 2002 and Dr Memon in 2001, that there is a full range of movement of Mrs Jarman’s back which showed pain free movements apart from some pain on extension. Dr Nall opined that Mrs Jarman is still suffering the effects of the injury of 15 July 1999 and that the condition has stabilised. The Tribunal agrees with this and also agrees with Dr Nall that Mrs Jarman may experience intermittent attacks of pain in the future associated with twisting or high load stress of her back. Dr Nall assessed a five per cent whole person impairment from Table 9.6 of the Guide which reflects minor restrictions of movement. This is what Mrs Jarman had described to the majority of doctors and to the Tribunal, noting the intermittent nature of her pain, that is, she has good days and bad days. The Tribunal cannot find on consideration of all the evidence that a ten per cent whole person impairment under Table 9.6 of the Guide is justified as this rating would require, as relevant, the loss of less than half the normal range of movement.
57. The Tribunal finds from the evidence, both medical and from Mrs Jarman, that Mrs Jarman has a five per cent whole person impairment as opined by Dr Nall and referrable to Table 9.6 of the Guide. The objective medical evidence and oral evidence does not justify a ten per cent whole person impairment from Table 9.6 of the Guide dealing with the thoraco-lumbar spine. Accordingly, for all of the reasons set out above, the Tribunal determines that pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is affirmed.
I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock, Senior Member and Dr J D Campbell, Member
Signed: .......................................................................................
AssociateDate of Hearing 21 June 2002
Date of Decision 12 March 2003
Counsel for the Applicant Dr H R Sorensen
Solicitor for the Applicant Mr M Magee, Maurice May & Co.
Counsel for the Respondent Mr N PolinSolicitor for the Respondent Ms S Hamer, Solicitor, Australian Government Solicitor
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