Leek and Australian Postal Corporation - [2001] AATA 338

DECISION AND REASONS FOR DECISION [2001] AATA 338

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/1433

GENERAL ADMINISTRATIVE DIVISION       )
           Re      ARTHUR LEEK
  Applicant
           And    AUSTRALIAN POSTAL CORPORATION
  Respondent

DECISION

Tribunal M J Sassella, Senior Member Dr M Thorpe, Member

Date26 April 2001
PlaceSydney

Decision      The Tribunal affirms the decision under review.
   [Sgd] M J Sassella
  Senior Member
CATCHWORDS
Workers' Compensation – car accident – claim for compensation – claim for permanent impairment – permanent injury - Comcare guide to the assessment of the degree of permanent impairment – whiplash injury - neck and right arm pain – partial incapacitation - ligament and fibrous tissue damage – attributable injury - diagnostic basis for an impairment rating – neck pain – elbow pain - restriction of movement

Safety, Rehabilitation and Compensation Act 1988, ss 4, 24, 27, 28
Comcare v Amorebieta (1996) 66 FCR 83
Re Peters and Australian Postal Corporation (AAT 9680, 23 August 1994)

REASONS FOR DECISION

26 April 2001 M J Sassella, Senior Member, Dr M Thorpe, Member

History of the application

On 4 May 1992 Mr Arthur Leek ("the Applicant") was a passenger in a car with his working partner, Mr Barry Withers, who was driving the vehicle (T4). Whilst driving, Mr Withers, according to the statement given to police by the Applicant, lost control of the car while having "some type of seizure." The Applicant and Mr Withers were consequently involved in a front on collision with another car, whereupon that other car was pushed into a third. None of the details of the accident are in dispute.
On 11 May 1992 the Applicant lodged a claim for compensation with the Australian Postal Corporation ("the Respondent") in respect of injuries to his neck, right shoulder and arm caused by the accident of 4 May 1992 (T7).
On 2 June 1992 the Respondent determined that the Applicant was entitled to compensation for the period 5 May 1992 to 8 May 1992 as well as for any associated medical expenses (T9). The named condition was whiplash and sprained right arm and shoulder.
On 8 September 1997 the Applicant lodged a claim in appropriate form for compensation for permanent impairment with the Respondent (T26). A 19% whole person impairment was claimed in accordance with the report of Dr Mahony dated 25 August 1997 (Exhibit A6).
On 12 March 1998 the Applicant lodged a claim for permanent impairment with the Respondent using an appropriate form (T30). The Applicant claimed a permanent impairment of 19%. The application referred to the conditions of musculoligamentous neck sprain, right lateral and medial epicondylitis as well as hand weakness. The impairments were listed as a limitation of neck and right elbow movement, weakness in the right hand and limitation of ability to work due to pain in prolonged repetitive actions or difficult approach positions. An impairment of 25% was claimed for the neck and 20% for right arm function (folio 96).
On 26 May 1998 the Applicant's permanent impairment claim was rejected by the Respondent (T35). The determination also ceased any liability in relation to the original claim. The determination was based on the opinion of Dr Cameron that the Applicant's condition would by 1998 have been the same irrespective of the work injury of 1992.
On 30 June 1998 the Applicant sought a reconsideration of the above determination (T36). The Applicant enclosed reports of Drs Bencsik, Rish and Pell. The Applicant noted that the evidence of four doctors had been ignored in favour of that of Dr Cameron.
On 7 July 1998 the Respondent notified the Applicant that the reconsideration had resulted in liability being continued in respect of the original claim (T37). However Dr Cameron's opinion was preferred in deciding on the permanent impairment claim. The delegate was not satisfied that Dr Rish, who provided a report on the Applicant's behalf, had used the Comcare guide to the assessment of the degree of permanent impairment in making his assessment.
On 12 August 1998 the Respondent notified the Applicant that the reconsideration of 7 July 1998 had been reaffirmed and that liability continued in respect of incapacity and medical expenses, but that there was no entitlement pursuant to s 24 of the SRC Act in respect of permanent impairment (T38). The delegate was not satisfied that Dr Rish had used the Comcare guide to the assessment of the degree of permanent impairment in making his assessment.
Appearances
A hearing was held on 17 May 2000. Mr R Taylor appeared for the Applicant and Mr B Kelly appeared for the Respondent. The following material was taken into evidence:
Documents prepared pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 Exhibit TD1
Report of Dr Rish dated 11 August 1998 Exhibit A1
Report of Dr Rish dated 4 March 1999    Exhibit A2
Report of Dr Berry dated 2 June 1999     Exhibit A3
Report of Dr Berry dated 7 June 1999     Exhibit A4
Report of Dr Mahony dated 10 June 1997         Exhibit A5
Report of Dr Mahony dated 25 August 1997     Exhibit A6
Report of Dr Mahony dated 10 June 1997         Exhibit A7
Report of Dr Wolfenden dated 16 June 1999     Exhibit A8
Applicant's statement of facts and contentions Exhibit A9
Report of Dr Pell dated 27 April 2000      Exhibit A10
Report of Dr Rish dated 21 March 2000 Exhibit A11
Report of Dr Wolfenden dated 16 May 2000     Exhibit A12
Report of Dr Pierides dated 28 march 2000       Exhibit A13
Respondent's statement of facts and contentions        Exhibit R1
Report of Dr Mellick dated 20 August 1999       Exhibit R2

Legislation

The relevant legislation in this matter is the Safety, Rehabilitation and Compensation Act 1988 ("the Act"), and in particular ss 4, 24, 27 and 28:
"4. (1) In this Act, unless the contrary intention appears:
…
"ailment" means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);
"approved Guide" means:
(a) the document, prepared by Comcare in accordance with section 28 under the title "Guide to the Assessment of the Degree of Permanent Impairment", that has been approved by the Minister and is for the time being in force; and
(b) if an instrument varying the document has been approved by the Minister-that document as so varied;
…
"disease" means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation;
…
"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;
"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;
…
"non-economic loss", in relation to an employee who has suffered an injury resulting in a permanent impairment, means loss or damage of a non-economic kind suffered by the employee (including pain and suffering, a loss of expectation of life or a loss of the amenities or enjoyment of life) as a result of that injury or impairment and of which the employee is aware;
…
"permanent" means likely to continue indefinitely;
…"
"Section 24
Compensation for injuries resulting in permanent impairment
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.
(8) Subsection (7) does not apply to any one or more of the following:
(a) the impairment constituted by the loss, or the loss of the use, of a finger;
(b) the impairment constituted by the loss, or the loss of the use, of a toe;
(c) the impairment constituted by the loss of the sense of taste;
(d) the impairment constituted by the loss of the sense of smell.
(9) For the purposes of this section, the maximum amount is
$80,000."
"Section 27
Compensation for non-economic loss
27. (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.
"Section 28
Approved Guide
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.
(2) Comcare may, from time to time, by instrument in writing, vary or revoke the approved Guide.
(3) A document prepared by Comcare under subsection (1), and an instrument under subsection (2), have no force or effect unless and until approved by the Minister.
(4) Where Comcare, a licensed authority, a licensed corporation or the Administrative Appeals Tribunal is required to assess or re-assess, or review the assessment or re-assessment of, the degree of permanent impairment of an employee resulting from an injury, or the degree of non-economic loss suffered by an employee, the provisions of the approved Guide are binding on Comcare, the licensed authority, the licensed corporation or the Administrative Appeals Tribunal, as the case may be, in the carrying out of that assessment, re-assessment or review, and the assessment, re-assessment or review shall be made under the relevant provisions of the approved Guide.
(5) The percentage of permanent impairment or non-economic loss suffered by an employee as a result of an injury ascertained under the methods referred to in paragraph (1) (c) may be 0%.
(6) In preparing criteria for the purposes of paragraphs (1) (a) and (b), or in varying those criteria, Comcare shall have regard to medical opinion concerning the nature and effect (including possible effect) of the injury and the extent (if any) to which impairment resulting from the injury, or non-economic loss resulting from the injury or impairment, may reasonably be capable of being reduced or removed.
(7) When a document prepared by Comcare in accordance with subsection (1), or an instrument under subsection (2), has been approved by the Minister, Comcare shall cause copies of the document or instrument, as the case may be, to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives those copies.
(8) Comcare shall make copies of the "Guide to the Assessment of the Degree of Permanent Impairment" that has been approved by the Minister, and of any variation of that Guide that has been so approved, available upon application by a person and payment of the prescribed fee (if any).
(9) Sections 48 (other than paragraphs (1) (a) and (b) and subsection (2)), 49 and 50 of the Acts Interpretation Act 1901 apply in relation to a document, being the approved Guide or an instrument varying or revoking that Guide that has been approved by the Minister, as if, in those sections, references to regulations were references to such a document and references to a regulation were references to a provision of such a document.
(10) For the purpose of the application of the provisions of the Acts Interpretation Act 1901 in accordance with subsection (9), a document referred to in that subsection shall be taken to have been made on the date on which it was approved by the Minister under this section."

Background

The Applicant is married and is now 52 years old. He was 44 years old at the time of the accident in 1992. His wife does not work. He has three children, one of whom has left home. The Applicant is a non-smoker and is diabetic. He self-injects insulin for his diabetic condition. Prior to the car accident he enjoyed lawn bowls and rock fishing. The Applicant claims that he is unable to enjoy these activities due to his conditions, which arose from the accident of 1992.
The Applicant has worked for Australia Post since 1970 and is a trained electrician. He did some private electrical work in his spare time. His field officer job at Australia Post was abolished around 1995 and he returned to working as an electrician (T34).
The Applicant has continued to work for Australian Post since the accident of 1992, intermittently taking time off for treatment and because of pain in the neck and right arm.
Medical evidence
On 5 May 1992 the Applicant was given a medical certificate by Dr Rish excusing him from work for the period 5 May 1992 to 9 May 1992 (T3). The nature of the injury as stated on the certificate was "whiplash neck, sprained right arm + shoulder."
On numerous occasions after the time of the accident until March 1999, the Applicant was given medical certificates certifying him to be unfit for work due to his neck and right arm pain (T3).
On 14 January 1995 Dr Rish reported on the injuries to the Applicant (T10). He stated that the injury was entirely work related and that recovery was incomplete. He further stated that his work activities contribute to the slow recovery and that the Applicant may need medication and/or physiotherapy for life.
On 29 August 1995 Australia Post's human resources department wrote to Mr John Bennett to explore the possibility of offering the Applicant a voluntary redundancy package (VRP) (T14).
On 4 September 1995 Mr Bennett wrote to the human resources department stating that the Applicant had no incapacity so therefore he could be offered a VRP (T15).
On 8 May 1996 Dr Levitt, radiologist, reported on the Applicant's CT scan of the cervical spine (T16). He found a minor right postero-lateral C5/6 disc protrusion passing slightly superiorly. It encroached on the right C5/6 intervertebral foramen and appeared to be displacing the right C5 nerve root.
On 2 October 1996 Dr Pell, neurosurgeon, reported on the Applicant (T18). He noted that the neck and right arm pain was getting progressively worse and further that there was a small postero-lateral disc protrusion at the C5/6 level.
In late 1996 the Applicant was given facet joint injections into the cervical spine on a number of occasions (T18-T22). These provided temporary relief, said the Applicant in evidence. They then began to cause unpleasant symptoms.
At the request of the Respondent, the Applicant was examined by Dr Bencsik, consultant orthopaedic surgeon, on 20 March 1997 (T25). He noted episodes of muscle spasms and that there are times when the Applicant's neck movements are "good and he is free of pain." He considered, on the balance of probabilities, that the Applicant's neck pain and hand weakness were attributable to the accident of 4 May 1992. He also attributed the elbow pain to the same accident, again on the balance of probabilities. He regarded the Applicant as partially incapacitated but fit to carry out normal duties. He further stated that the conditions were likely to be permanent.
On 10 June 1997 Dr Mahony assessed the Applicant's disability as 20% permanent impairment of the neck, 15% permanent loss of efficient use of the right upper limb at and above the elbow and 2.5% permanent loss of efficient use of the left upper limb at and above the elbow (Exhibit A5). In another report of the same date Dr Mahony found that the Applicant's cervical strain and discogenic lesions at the C5/6 level with nerve irritation affecting the right upper limb were consistent with the road traffic accident of 1992 (Exhibit A7).
On 25 August 1997 Dr Mahony assessed the Applicant as having a 10% whole person impairment as regards the cervical spine and the same level impairment as regards the right upper limb. He found a total whole person impairment of 19% (Exhibit A6).
On 6 January 1998 the Applicant was examined by Dr Durham (T29). After an MRI scan and x-ray, no abnormality was found in the cervical spine or intervertebral discs was found.
On 12 March 1998 (T30) the Applicant lodged a claim for 19% permanent impairment with the Respondent. The Applicant listed the following symptoms on the application:
·     Muscle spasms
·     Weakness of right arm
·     Numbness right forearm
·     Constant pins and needles in fingers
·     Restriction of movement
·     Pain in neck on activity
·     Reduced recreational activity (bowls)
·     Disturbed sleep
·     Irritability/pain effecting personal relationships
·     Constant pain in right elbow
·     Neck pain increasing sugar levels/effecting diabetes condition

On 19 May 1998, at the request of the Respondent, Dr Cameron, consultant surgeon, provided a medical report on the Applicant (T34). He assessed the Applicant as having 5% whole person impairment according to Table 9.6 (neck), and a 0% whole person impairment according to Table 9.1 or 9.4 relating to upper limb function. Dr Cameron considered the neck condition to be permanent and that there was no prospect of the impairment being reduced or any rehabilitation that would affect the conditions. He further stated that "mild degenerative conditions are at work causing minor restriction of neck movement. I consider that Mr Leek would now be equally incapacitated irrespective of his motor vehicle accident of 4 May 1992." Dr Cameron also gave the opinion that any injuries sustained in the accident of 1992 had now healed.
On 11 August 1998 Dr Rish, the Applicant's treating doctor, provided a medical report on the Applicant (Exhibit A1). He stated that he had seen the Applicant 81 times between January 1994 and the time of the report. These consultations were in relation to ongoing neck and right arm pain. He referred to various treatments such as physiotherapy, anti-inflammatories, painkillers, and cortisone and anaesthetic injections, none of which cured the Applicant's condition. He stated that although the C5/6 disc lesion had resolved, "his continued pain is caused by underlying ligament and fibrous tissue damage, from his MVWA, leading to swelling around the nerve roots plus C fibre sensitisation. It is now 5 years since his accident and as he is worse rather than better his injury must be regarded as permanent."

On 12 August 1998 the Respondent notified the Applicant that the reconsideration of 7 July 1998 had been affirmed and that liability continued in respect of incapacity and medical expenses, but that there was no entitlement pursuant to s 24 of the SRC Act in respect of permanent impairment (T38).
On 4 March 1999 Dr Rish reported that the Applicant's working conditions were continually aggravating he neck condition. He recommended alternative workplace arrangements for the Applicant (Exhibit A2).
On 2 and 7 June 1999 Dr Berry, specialist surgeon, reported on the Applicant (Exhibit A3). He found a whole person impairment of 24%, comprising 15% according to Table 9.6 and 10% for shoulder and/or elbow (loss of less than half the normal range of movement).
On 16 June 1999 Dr Wolfenden, consultant neurologist, found that the Applicant had sustained a sudden flexion-extension injury to the cervical spine (Exhibit A8). This produced neck pain and a disc lesion causing "tingling and numbness particularly in the…fingers." He further considered that the symptoms are "entirely consistent with the accident described." Dr Wolfenden found a 10% whole person impairment cervical spine and 10% whole person impairment right upper limb. He further assessed 5% whole person impairment of the right arm in regard to lateral epicondylitis of the right elbow. He found a total whole person impairment of 24%. This report largely concurs, in regard to cervical spine and right upper limb, with the report of Dr Mahony of 25 August 1997.
In a report of 20 August 1999, Dr Mellick, consultant neurologist, gave the opinion that the Applicant's accident did not cause any structural spine lesion or any intracranial or neural disorder (Exhibit R2). He found "no abnormal signs of diagnostic significance." He found no connection between the current symptomatology and the accident of 1992. Further, he stated that "there is no indication now of any disc, cervical or elbow abnormality related to the accident in 1992." He found no diagnostic basis for an impairment rating. In oral evidence Mr Leek was critical of Dr Mellick. He was kept waiting for two hours for his examination. He had the Applicant undress and the resultant examination took only two or three minutes before Mr Leek could dress again.
On 21 March 2000 Dr Rish reasserted his medical opinion on the Applicant in a letter to the Applicant's solicitors (Exhibit A11).
Dr Rish gave evidence at the hearing. He added to his report at Exhibit A1 by agreeing that Mr Leek had two attendances in 1988 for right elbow pain. He gave Mr Leek cortisone injections. The condition resolved. There had been no further mention of right arm problems until the accident in 1992. There had been no mention of neck problems, or referred pain from the neck, or arm problems.
Dr Rish said that most of the Applicant's symptoms as listed in T10 have disappeared. Only the neck and right arm conditions continued. They improved to 1996 but then grew worse. There was in fact no mention of the right arm or neck in his notes in 1993 or 1994. There were some 1995 attendances for right elbow tendonitis.
Dr Rish believes that the nature of Mr Leek's work from 1996 made manifest an underlying injury. Dr Rish considers the right elbow epicondylitis a permanent injury. If such an injury does not resolve with rest and a cortisone injection it is a permanent injury. Mr Leek's elbow is affected by a local source, the epicondylitis. There is also referred pain from the neck down the right arm. Dr Rish does not believe that Mr Leek should be doing the kind of work, eg work in confined spaces, required in his current job. Dr Rish wrote for 12 months on desirable restrictions before Australia Post introduced them.
Dr Rish considers that the neck can still be painful, although Mr Leek can move it when asked. A neck can be painful to mobilise even if there is no perceptible organic concern. Dr Rish reminded the Tribunal that a disc lesion had been found in the neck (T16). He saw this as better evidence than the subsequent MRI scan that detected nothing (T29). For these purposes a MRI scan is not necessarily the best type of investigation. The findings in T16 are consistent with resulting pain such as that Mr Leek complains of. Dr Rish had observed that Mr Leek's neck movements were 50% restricted when he saw him at the times of flare-ups. The arm would lose about one third of function.
Dr Rish does not believe that Mr Leek exaggerates. He seems a straightforward person not prone to complaining.
In cross-examination Dr Rish agreed that the Applicant had not complained of neck or right arm problems when he saw Dr Rish for all of his attendances in 1993. Dr Rish agreed that this might suggest that problems had resolved. However, he noted that they re-emerged later. He also said that there may have been underlying pain without flare-ups sufficient for Mr Leek to raise the issue. Dr Rish agreed that the failure of the MRI scan to pick up any cervical injury in T29 (January 1998) might mean that the condition had resolved. This would mean that any remaining injury to the neck is soft tissue injury only. However, he went on to state that a soft tissue injury of that type that does not heal within months or a year is likely to take a very long time to heal, if it ever does. It is likely to leave the ligament weakened. It is close to a permanent injury. Dr Rish agreed that even the disc lesion could be consistent with age related degenerative changes. However, the failure of the MRI scan to detect spondylosis suggests that this is not so. Dr Rish said that the fact that the CT scan picked up only one disc lesion suggests that that had a traumatic cause.
On 28 March 2000 Nancy Kerr, rehabilitation consultant, prepared a report on the Applicant (Exhibit A13). She stated that the Applicant could, with some restrictions, continue with his employment but that he will have occasional exacerbations of pain. She further stated that it was unlikely that his symptoms would change. She recommended physiotherapy and acupuncture.
On 27 April 2000 Dr Pell, neurosurgeon, stated that "as a result of the motor vehicle accident of 4 May 1992, Mr Leek sustained a C5/6 disc protrusion causing neck pain and right arm pain" (Exhibit A10). He gave a prognosis of continuing pain unless a cervical myelogram and post-myelogram was performed. Mr Leek said he was referred to Dr Pell for pain relief. He did not pursue the myelogram because of his diabetes and gamma globulin deficiency. This was on Dr Rish's advice.
On 16 May 2000 Dr Wolfenden assessed the Applicant as having a 20% whole person impairment with regard to the upper right limb, irrespective of whether Table 9.1 or 9.4 was used for the assessment (Exhibit A12).
Mr Leek's Evidence
Mr Leek gave oral evidence at the hearing. He said that prior to his accident in 1992 he had no problems, no neck pain, no right arm pain and no hand or finger disability. He was not impeded in his work. He had no difficulty travelling long distances in a car. He could drive up to 2,000 kilometres a week without pain in the neck or arms. He had no earlier injury to his right arm. He had injured his left arm in 1985.
In his pre-1992 life the Applicant engaged in rock fishing, boat fishing, lawn bowls and electricity work for Legacy. He fished often at weekends with his brother. He assisted to get the boat on and off the trailer. He could climb up and down to and from the fishing area.
The Applicant described the accident of 4 May 1992. He and Mr Withers left the GPO for Lidcombe and Granville. At lunchtime they were between Lidcombe and Granville and travelling at 60 kilometres an hour in the left lane. Mr Withers had a seizure. Mr Leek grabbed the handbrake with his right hand. As described earlier, a three-car collision ensued. The Applicant was bruised and went home shaking. He had a seat belt bruise on his left shoulder. He felt no pain at first but went to hospital and was stiff and sore. He had a headache and a sore right arm. He had breathing difficulties – his chest hurt if he took a deep breath. He did not return to work that day.
The next day Mr Leek saw Dr Rish. He prescribed Panadeine Forte, Oridus and a soft collar. The Applicant was off work for two weeks. He received compensation. He had physiotherapy. He saw Dr Rish regularly. He had other health problems, diabetes, hyperlipidaemia and a gamma globulin deficiency so he was used to seeing Dr Rish regularly. The Applicant found that his early right leg pain and left shoulder pain resolved. His neck and right arm pain continued. The right arm pain consisted of pain, tingling in the mid and index fingers, numbness in the outer arm from the elbow to the wrist, numbness in the palm of the right hand, and pins and needles in the hand. His right elbow has been perpetually sore.
Since the accident Mr Leek's neck aches. It has worsened with time. His arm aches. On long drives his neck pain worsens. His neck movements are restricted because of pain to 30 degrees laterally and 45 degrees up and down. Reversing the car is difficult. Mr Leek's pain and restrictions worsened to 1996. He was then redeployed to technical work which involved some reasonably arduous physical duties. This caused problems. He saw Dr Rish who in 2000 recommended restricted duties. These were implemented with involvement by a rehabilitation counsellor. Restrictions on lifting (five kilograms repetitive limit; 10 kilograms occasional limit), repetitive bending or twisting, work above shoulder height, reaching, repetitive use of elbows and wrists, forceful pushing and pulling, working under equipment where access is difficult, have been in place since 1996 at the Applicant's request. He has varied his activities every two hours with breaks. Australia Post has observed these restrictions and the Applicant has the support of his co-workers who offer to do tasks inappropriate for Mr Leek.
Mr Leek has had to restrict the honorary electrical work he has done for Legacy and others. He still plays lawn bowls but infrequently, about six times over two years. His right arm pain prevents him from holding the ball correctly. Later in cross-examination he said the main problem with playing bowls was that it takes him two or three weeks to recover from a game. His neck and right arm hurt. Mr Leek said looking up from the ground to see where the bowl goes causes him particular problems. He has not engaged in rock fishing for five years. He cannot hold the rod for a long period. He can still do some boat fishing because he can put the rod down. He cannot assist with the boat trailer. He last fished from a boat about three months before the hearing. Sometimes he and his brother have to abandon the fishing and come in because of Mr Leek's sore neck.
Mr Leek has trouble sleeping because of neck pain. He takes sleeping tablets and painkillers (ie Panadol).
As regards the right arm, the Applicant said he can grip although less well than before the accident. He would need help fitting an industrial belt. His neck pain can cause a reduction in grip and he drops objects. He cannot swing his arms while walking. He has neck discomfort from working at or above shoulder height. The higher he goes the worse the discomfort is. He can lie on his back to work under a machine for only a short time. When he uses hand tools he loses strength tightening and untightening nuts. He avoids carrying ladders if possible because it hurts his neck and arm. He drives a Ford van and finds it difficult to drive other than straight-ahead. He has difficulty driving a motor car that is manual and if it has no power steering. He can drop a cup he is holding or a screwdriver he is holding if he happens to stand in the wrong way. Counsel for the Respondent put to Mr Leek that he had not mentioned this to doctors. Mr Leek responded that he had not been asked.
His neck hurts if he uses a computer for over 20 minutes. At work he has to ensure computer screens are at his head height in order to minimise neck pain. He can watch television but must frequently change position. Mr Leek cannot let his granddaughter hug him because it hurts his neck. He tries to help his wife about the house and with shopping. Carrying is a problem. He assists with vacuuming and washing clothes. He opens cans with a right-handed can opener and with considerable effort.
In cross-examination the following points emerged:

Mr Leek had a right elbow problem in 1988. He saw Dr Rish about it. (This is somewhat at odds with earlier evidence.)
It would be close to impossible for the right shoulder injury to be caused by a seatbelt where, as here, the passenger is a front seat passenger. The belt passes over the left shoulder. (The Tribunal notes that Mr Leek's evidence was that his left shoulder, not the right shoulder, was injured by the seatbelt.)
Mr Leek worked much of the first six months after the accident. He took time off on 8 September 1992 and from 23 to 27 October 1992, but he seemed able to work for the remainder of the time. It was suggested that he could not have had great pain in those periods. Mr Leek said that he was in pain but did his best to maintain work.
Mr Leek saw Dr Rish 15 times between 16 January 1993 and 6 January 1994 and made no complaint about his neck, right shoulder, right elbow or right arm.
Mr Leek lost no time off work between 19 December 1992 and 18 May 1995. This is based on T45, the Applicant's leave records.
Mr Leek told Dr Rish in about May 1996 of intermittent tingling in his right arm since the accident in 1992 and that it had worsened in the last two months and was spreading to his left arm. Dr Rish referred Mr Leek to a physiotherapist, Ms K Moore. Apparently Mr Leek told her that he had full movement in the neck, and that he suffered numbness in the forearms after working at the computer.
When Dr Rish referred Mr Leek to Dr Pell in September 1996 Mr Leek carried out certain movements for Dr Pell. He turned his head from side to side and looked up and down. Mr Leek was able to perform these actions when requested. The Applicant insisted that he did so but it was with some restriction. Counsel suggested that he was not restricted in performing these movements. He may have experienced pain doing them, but he was able to perform them. Mr Leek insisted that he was restricted in performing them. The Applicant saw Dr Pell three times and repeated these actions the same way each time.
The Applicant told Dr Bencsik that there were times when his neck movements were quite good.
When the Applicant saw Dr Cameron he performed requested movements of the head and neck with only mild restriction. He performed requested actions with his arms.
The technical work currently done by the Applicant requires considerable manual dexterity.
Mr Leek finds his neck more troublesome than his arm. However in the economic loss questionnaire completed for Australia Post on 12 March 1998 at T31, folio 98, Mr Leek gives his elbow pain a higher pain rating than his neck. Mr Leek assessed his restrictions on mobility as a two rating. Mr Kelly suggested that a rating of one would seem more appropriate. The Applicant is not confined to walking at a slow pace and does not have a wheelchair. The Applicant later said he assessed himself at a high level of restriction because he has to carry shopping in several loads and so on. The Applicant assessed himself as regards recreational and leisure activities as "unable to undertake any satisfying or rewarding activities." Counsel pointed to the evidence that Mr Leek can still play lawn bowls and a less restrictive description of his difficulties (box rating 3 on the form) might better apply. Mr Leek did not accept this. He took the view that if he had to recuperate for weeks after a game the activity was not genuinely rewarding. A similar point was made as regards boat fishing. He later said he used to try and go fishing every week. The frequency has dropped almost nothing.
At one point there was discussion about Mr Leek's redeployment to more physical activities and whether there were restrictions dictated by Dr Rish in force at the time. Mr Leek was unable to indicate where Dr Rish had imposed any such restrictions in certificates he provided in 1997 or 1998.

The Applicant's older brother, Mr C B Leek, then gave evidence. He spoke of Mr Leek engaging in fishing and electrical maintenance work before his accident in 1992. He was not restricted at all in his fishing. He would go rock fishing at Bondi negotiating a ladder down to the rocks. He also used a flying fox to reach an island for fishing. None of this caused him problems. These activities were done while carrying considerable weight in equipment. Likewise the Applicant did his electrical work without any problem.
After the accident the Applicant complained a lot of pain. He has been reluctant to go out on the boat. On a couple of occasions the witness has had to bring the Applicant back in early on the boat. The Applicant's complaints were mainly about his neck. The Applicant's abilities have been declining all the time since the accident. He has complained constantly over the years about his neck and right arm. The Applicant tends to start off a day of activity quite well but become exhausted after several hours.
The witness confirmed that he and the Applicant had last gone fishing three months earlier and the Applicant had asked to be taken back to shore when they went out in the boat.
The witness had noticed that the Applicant accepts and needs help now when doing electrical work at his brother's house. Before the accident the Applicant would insist on doing it all by himself.
The witness repeated several times that it is Mr Leek's neck that causes the Applicant to complain most vehemently.
Applicant's submissions
Mr Taylor's submissions on behalf of Mr Leek, in summary form, were:
The Applicant recalls no neck or right arm problems before the accident in 1992. That he had a right elbow problem in 1988 that he does not remember is consistent with the fact that that condition resolved.

The Applicant's symptoms in the neck and right arm from the 1992 accident have persisted. They have flared up occasionally. At the times of flare-ups he has reported them to doctors. Flare-ups have tended not to occur while he was doing relatively light driving work. However, in 1996, when he returned to the work of a technician, the problems recurred. There has been no suggestion of any other cause for the recurrence.

All doctors who have seen Mr Leek agree, with the exception of Dr Mellick, that there is a causal nexus between the problems the Applicant has and the accident of May 1992.

There is a high probability of a traumatic injury to the C5/6 disc with an impingement of the disc on the C5 nerve root. The nerve root damage is crucial, even if the disc bulge has reduced. This sort of injury does not resolve.

There is a high probability of damage to the neck facet joints, judging from Dr Pell's injections. This sort of injury does not resolve.

Mr Leek's right arm problem is a combination of epicondylitis and nerve root damage in the neck coupled with ligament damage producing referred pain in the arm and nerve damage producing symptoms in the hand and fingers.

Applying the approved Guide (ss 4 and 28 of the Act), table 9.1 attracts at least a 10% whole person impairment rating. This involves movement of the elbow. The Applicant can move the elbow normally for extended periods only with extreme pain. That pain produces a restriction. Counsel translated this to loss of more than half the normal range of movement of shoulder or elbow in table 9.1. That attracts a rating of 30%.

Table 9.4 as it applies to the elbow injury attracts a percentage rating of 20. This is because of the evidence that the Applicant has difficulty grasping or holding.

Table 9.6 on the cervical spine attracts 15% as, counsel says, Mr Leek has lost more than half normal range of movement of the cervical spine. Again this is based less on what Mr Leek can do if asked than on what he can do without experiencing pain.

10) There can be no argument that the Applicant's condition is purely degenerative. The CT scan evidence, the MRI result and the medical evidence rebut that. Counsel relies on Dr Bencsik (T25), an expert used by the Respondent, who said the C5/6 disc injury and epicondylitis were on the balance of probabilities caused by the accident.

Respondent's submissions

Counsel for the Respondent made the following summarised submissions:
The Tribunal could find that the effects of the motor vehicle accident resolved within six months following the accident. There was a complete lack of any incapacity for work, of any treatment, or any complaint for a period of a year from 16 January 1993 until 6 January 1994. Dr Rish agreed that an earlier episode of right elbow epicondylitis had resolved. He also agreed that in the absence of any continuing complaint or any attendance for treatment it had to be assumed that the condition had resolved. The Applicant had said in evidence that he would mention a condition to a doctor when seeing him or her if it was causing pain in any particular part of his body. It is inconsistent for the Applicant now to argue that he had continuing pain throughout the period.

If the Tribunal does not accept that submission, the Tribunal should find that there is no permanent impairment. There is no objective radiological evidence of anything other than soft tissue injury from the motor vehicle injuries. While a CT scan showed a minor disc protrusion at C5/6 which was said to be displacing the adjacent C5 nerve root, the MRI scan conducted later shows no such pathology. Counsel suggested that the CT scan result is no more reliable than the MRI scan result which counsel for the Applicant had suggested should be subordinated to the CT scan result.

Even if there had been a disc protrusion, it has since resolved. It was only minor. Such a protrusion can exist in a non-symptomatic patient. The lesion reported was on the right side but the Applicant has consistently reported bilateral symptoms of numbness and tingling.

The Applicant's change of duties from light, driving-oriented duties to supposedly heavier technician's duties should not be overemphasised. On the Applicant's own evidence he has benefited from a modified duties regime ever since the change was made.

If the Tribunal finds that there is a permanent impairment, counsel then submitted that any cervical spine impairment should be less than 10% (table 9.6). Dr Pell described the range of movement of the cervical spine as good on a number of occasions. Dr Cameron saw neck movements as only mildly reduced and within normal limits for a man of Mr Leek's age and build. Dr Mahony saw flexion as within normal limits and other movements as restricted to about half of normal. In total terms this adds up to less than a 50% level of restriction. For differing reasons counsel suggested that less weight should be accorded the views of Drs Berry and Wolfenden. Dr Rish estimated that the Applicant had lost half of the normal range of movement but saw him only in times of flare-ups. As a permanent phenomenon the Applicant has lost, therefore, less than half the normal range of movement. This leads to a 5% rating under table 9.6.

There is no real medical support for any permanent impairment of the right arm. Dr Pell makes no comment about any loss of range of movement of the arm and records no complaint about holding, grasping or carrying objects. Dr Bencsik found flexion to 135 degrees of the right elbow. Extension was full. Pronation and supernation were normal. Dr Cameron reported a full range of all joint movements in relation to both upper limbs. Dr Mahony said shoulder movements appeared restricted in extremes of elevation and internal rotation. This suggests a minimal loss of range of movement. He records no loss of range in the remainder of the upper limbs. Dr Berry finds a lack of the last 10 degrees of abduction in the right arm. Thus there is a loss, if any, only on the extreme of movement. Internal rotation was relatively normal. There was slight loss of movement on flexion. Extension was normal. Pronation was normal. Supernation was restricted to a degree not recorded. The power of grip and pinch was restricted. Counsel says this falls short of what is necessary for a finding of 10% (as Dr Berry did find) under table 9.4. He said the Applicant finds difficulty tightening nuts and bolts with spanners and washing his car. That falls short of establishing difficulty with grasping and holding and also loss of digital dexterity beyond a minor degree.

As regards table 9.1 there is at best a loss of less than half the normal range of movement of the shoulder or elbow.

Counsel discounts Dr Wolfenden because he misused the tables.

Findings on material questions of fact with reference to the evidence or other material on which the findings are based

Section 24 of Act provides the criteria for a compensation payment in respect of a permanent impairment. The requirements are:
1) An injury to the employee.

2) That injury must result in permanent impairment.

Section 4(1) of the Act defines an "injury" as an injury suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment.
As regards the existence of an impairment attracting a payment under ss 24 and 27 of the Act, s 4(1) of the Act defines an "impairment" as "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". Section 28 of the Act authorises the publication of a Comcare "Guide to the Assessment of the Degree of Permanent Impairment" which must be used in assessing whole person impairment levels (in percentage terms) for the purposes of the Act.
The Tribunal found the submissions by both counsel well thought out and helpful. In particular, the logic of the steps in Mr Kelly's approach commended itself to the Tribunal and is adopted in these reasons.
Did the effects of the motor vehicle accident resolve within six months of the accident?
The Tribunal finds that the effects of the motor vehicle accident continued beyond six months following the accident. Mr Kelly set up his case for a cessation very skilfully but the Tribunal considers that the better view is that the accident has caused lingering effects. The Tribunal is impressed in reaching this conclusion by the evidence of Dr Rish, the Applicant's general practitioner. Dr Rish impressed the Tribunal as a serious witness able to take a balanced view of his patient. Much of Mr Kelly's argument hinged on the lack of any mention Mr Leek's neck and right arm symptoms in Dr Rish's (and his colleague's) clinical notes between 16 January 1993 and 6 January 1994. Dr Rish explained that he saw Mr Leek frequently and he was aware of Mr Leek's underlying neck and arm conditions. He would not have recorded them unless there was a flare up or another event out of the ordinary worthy of note.
Mr Kelly questioned the radiological evidence for any organic cause of Mr Leek's symptoms. He suggested that the CT scan result in 1996 (T12) showing a cervical disc protrusion and nerve interference may have been inaccurate or that the condition may have resolved by early 1998 when a MRI scan showed normal findings.
The medical evidence is confused on whether Mr Leek has a disability attributable to the motor vehicle accident. Several doctors, including a few reporting on behalf of the Respondent support Mr Leek.

Dr Rish, the general practitioner diagnosed whiplash neck injury, a sprained right arm and shoulder when he saw Mr Leek on the day after the accident in May 1992 (T3). By 14 January 1994 in a full report (T10) he said that, on 5 May 1992, Mr Leek had pain over the right side nape of neck, pain over right shoulder and upper arm, pins and needles in right index and mid finger, a painful right elbow on supination, pain over the left shoulder and upper chest from the seat belt, pain over the right patella, and a constant dull headache. He had diagnosed a whiplash sprain to his right side of neck, seat belt trauma to his left shoulder, and a sprain injury to his right arm from holding on to the handbrake on impact. Mr Leek had been reviewed frequently to the date of reporting by which time he had residual pain in the neck for two hours each morning and pain and stiffness in the right elbow after a long day's driving. He wrote, "Serious sprain injuries such as this are very slow to heal, but as it is almost 2 years since his accident I would anticipate that he will not improve further and he will always have some inflammatory disability due to the accident." Dr Rish said Mr Leek could get worse if he overused his right elbow or turned his neck too quickly. On 11 August 1998 (Exhibit A1) Dr Rish said that some periods had been less painful for Mr Leek than others but Mr Leek had, since the time of his accident, had ongoing pain and disability in his neck and right elbow. The nature of his work in confined or difficult positions has led to frequent flare ups of his pain requiring time off work to rest have injections and medications. He wrote that "since [1992 Mr Leek] has suffered constant dull pain in his neck and right elbow with at times flare ups of severe pain due to either accidents at work or difficult or repetitive working positions." He concluded that Mr Leek's initial injury had led to a chronic inflammatory epicondylitis of his right elbow and a C5/6 disc lesion encroaching on his right C5 nerve root. "He has had pain in his left neck and arm from the inflammation in his neck causing referred pain. Although his MRI of 6/1/98 showed his C5/6 disc lesion to have resolved his continued pain is caused by underlying ligament and fibrous tissue damage, from his [motor vehicle accident], leading to swelling around the nerve roots plus C fibre sensitisation. It is now 5 years since his accident and as he is worse rather than better his injury must be regarded as permanent." The situation remained unchanged to 21 March 2000 when Dr Rish updated his report (Exhibit A11).
Dr Pell, the Applicant's neurosurgeon, provides limited assistance in his reports. He saw the Applicant on only a few occasions late in 1996. He accepts the views of others as to the accident and its being the cause of Mr Leek's problems. He offers no substantial analysis.
Dr Bencsik in T25, writing for the Respondent, provides significant support for the Applicant. On 20 March 1997 he diagnosed, relevantly, C5/6 disc injury with upper limb symptoms on the right side as part of a soft tissue neck injury; right lateral and medial epicondylitis associated with a right ulnar neuritis in the cubital canal. Mr Leek's neck symptoms and right hand weakness, on the balance of probabilities, are attributable to the incident of 4 May 1992 and not any previous or subsequent injury. The incident has produced a "soft tissue strain of his neck and his disc and nerve roots are part of the soft tissue complex. In addition, he feels that he contused his right elbow in the accident but one is aware that lateral and medial epicondylitis can occur from other reasons. Nevertheless, he stated initially that he did injure his right arm which was painful and I would again, on the basis of probabilities, diagnose his lateral and medial epicondylitis and ulnar nerve neuritis as a consequence of that accident." Dr Bencsik said that the compensable condition has been affecting Mr Leek for nearly five years and was likely to be permanent.
Dr Mahony, an orthopaedic surgeon, reporting for the Applicant (Exhibit A7) gave a somewhat superficial account in support of the Applicant.
Dr Berry , reporting for the Applicant (Exhibit A3) wrote "His x-rays and clinical history would indicate that he has had a discogenic problem at C5-6 and this would be in keeping with his symptoms. The fact that it is not seen on his current MRI Scan would suggest that the disc itself has settled back into position but that it has impacted on the C5-6 nerve roots on the right side. I would consider that his present condition is a direct consequence of his motor vehicle accident."
Dr Wolfenden, a neurologist reporting for the Applicant (Exhibit A8), wrote that in the accident Mr Leek sustained a sudden flexion-extension injury to his cervical spine which produced neck pain and a disc lesion irritating the sixth cervical nerve root on the right side with consequent tingling and numbness particularly in the right index, middle and ring fingers. "At the time of the accident he was clutching the hand brake with his right hand to try and bring the vehicle to a halt and I think as a result of this there has been injury to the extensor muscles of the fingers where they attach to the lateral epicondyle at the elbow so that he has developed a lateral epicondylitis … in that region with consequent elbow pain." Mr Leek's symptoms and disabilities were entirely consistent with the accident described. The condition was stable and should not improve or deteriorate.

Against these authorities are Drs Cameron and Mellick.

Dr Cameron, writing for the Respondent on 19 May 1998 (T34), noted fairly full neck movement and no muscle wasting in upper limbs. He noted no response to resisted rotation specifically testing for epicondylitis. He concluded that, "Although not apparent on x-ray and MRI examination I consider it probable that mild degenerative conditions are at work causing minor restriction of neck movement. I consider that Mr Leek would now be equally incapacitated irrespective of his motor vehicle accident of 4/5/92." He considered that "any injury sustained in the accident of 4/5/92 ha[d] … healed, with any [then] current symptoms being of constitutional causes."
Dr Mellick, reporting for the Respondent on 20 August 1999 (Exhibit R2) found no abnormality of cervical contour and no spasm of paraspinal muscles, no wasting of shoulder girdle, upper arm or forearm muscles, nor any wasting of intrinsic muscles of the hands, no abnormality of skin colour, temperature or texture, no disorder of contour, posture, tone, coordination or sensation in the arms or the legs. There was no abnormality of power production involving any muscle group. Dr Mellick saw nothing in the details of the accident to suggest that Mr Leek suffered at the time any structural spinal lesion or deeply sited intracranial or neural disorder. He picked up on Dr Rish's early diagnosis of muscle sprain. He said that that healed within weeks and Mr Leek resumed a job involving a lot of driving at a time when Mr Leek said, to Dr Mellick, that he was essentially "OK". (Dr Rish later refuted this analysis. In Exhibit A11 he said that his clinical notes show that Mr Leek was certainly not "OK".) Dr Mellick saw Mr Leek's disabilities as essentially psychogenically directed. He saw Mr Leek's description of his right arm symptoms to Dr Pell (T18, 2 October 1996) as involving global sensory change, a pattern of sensory change that is classical in a psychogenically directed process. "No nerve root disorder was identified at that time. (This is an odd observation. The CT scan was completed by 8 May 1996 and is discussed by Dr Pell in his report at T18.) Dr Mellick in fact says that "The radiological data in its entirety is entirely devoid of any indication of a spinal lesion." Although Dr Mellick mentions the CT and MRI scans in his report he does not seem to derive the same materials from them as other experts. He says that the natural history of whiplash injury is of improvement over a circumscribed period. Here Dr Mellick hints that the period was two weeks, after which Mr Leek returned to work. Any symptoms in relation to Mr Leek's work would refer to his more recent duties. Mr Leek's overweight would predispose him to soft tissue symptoms as a result of postural change or trauma.

The Tribunal accepts the preponderant opinion of the doctors who hold that Mr Leek has ongoing symptoms resulting from the motor vehicle accident. The Tribunal finds the reports by Drs Rish, Bencsik, Berry and Wolfenden to be thorough, consistent and convincing. They register a consensus that there was a discogenic effect from the effect which has since resolved but has left in its wake nerve compromise and/or damage to ligaments and fibrous structures in the neck that are essentially permanently symptomatic. Dr Wolfenden also provided a credible explanation for the right epicondylitis in Mr Leek's attempt to stop the station wagon with his right hand on the hand brake. Conversely, the reports by Drs Cameron and Mellick reveal logical problems. Dr Cameron assumes mild degenerative spinal changes which are not shown on any x-ray, CT scan or MRI scan. Dr Mellick insists that nerve impingement generally accepted to be present in the CT scan is not demonstrated anywhere.
Is the impairment permanent?
Mr Kelly argued that, if the Tribunal found a continuing injury, there was nothing to suggest that it was permanent.
The Tribunal finds that Mr Leek's impairments are permanent as defined in s 4(1) of the Act. They are likely to continue indefinitely. There is ample medical evidence for this. Dr Rish (T10, Exhibit A1, Exhibit A11), Dr Bencsik (T25), Dr Berry (Exhibit A3) and Dr Wolfenden (Exhibit A8) all agree that the conditions are permanent in the relevant sense.
Is the permanent impairment sufficient to attract a compensation payment?
Unless Mr Leek's conditions add up to at least a 10% whole person impairment figure in the terms of the Comcare guide he cannot receive a payment under ss 24 and 27 of the Act (s 24(7)).
Looking first at the cervical spine impairment, table 9.6 is relevant. Mr Kelly argued that 5% would be the maximum possible rating. 5% means that the Applicant has only minor restrictions of movement. Mr Kelly's evidence for this was summarised earlier. Mr Taylor, for the Applicant, argued for a 15% assessment on the basis of loss of more than half normal range of movement. This was based less on what Mr Leek could do when demanded than on what he can do without experiencing pain. It should be noted that Dr L Pierides, specialist in occupational medicine, reported to the Respondent on 28 March 2000 (Exhibit A13) and mentioned restricted neck movements. However, he says nothing as to the role of pain in restricting those movements. He observed 70% rotation to the right and left, 60% on extension, and 80% on flexion.
In Comcare v Amorebieta (1996) 66 FCR 83 Jenkinson J addressed the question of "loss of normal range if movement" in table 9.6. At page 99 of the decision Jenkinson J says:
"…voluntary abstention from physical activity to prevent the onset of pain, and voluntary abstention from physical activity to alleviate pain, are not in my opinion to be taken into account, except in the circumstances to which reference is made above …, in determining the level of permanent impairment by reference to Table 9.6 or Table 9.5."

The "circumstances to which reference is made above" are encapsulated in this quote from page 97:

"Cessation, during medical examination or assessment, of a particular movement of the thoraco-lumbar spine at a particular point short of attainment of the limit of the normal range of movement in response to the onset of back pain (other than minor discomfort) would, as I suppose, be treated by medical practitioners as loss of so much of the normal range as lay beyond that point."

Thus, it would seem that the test is whether the performance of certain movements causes minor discomfort or substantial pain. In the instant case the doctors do not report that Mr Leek's neck movements were accompanied by any strong complaint of pain. The Tribunal finds that any pain experienced in this regard would be in the realm of minor discomfort. The Tribunal therefore finds that Mr Leek's degree of permanent impairment under table 9.6 is 5%.

As regards the right arm, tables 9.1 and 9.4 may be relevant. Tale 9.1 allows for a 5% impairment level but none of the conditions set out apply here. For a 10% assessment the appropriate entry is loss of less than half normal range of movement of shoulder or elbow. Mr Kelly cited the appropriate medical evidence in his submission, detailed earlier. It is noted that Dr Cameron (T34) observed a virtually full range of upper limb movement with some pain reported at extremities of full extension of the elbow. However, here again, the principles in Amorbieta (supra) would apply and this pain effect is irrelevant. It is difficult to make a great deal from Dr Mahony's report (Exhibit A7). In examining shoulders he says that movements appeared restricted in extremes of elevation and internal rotation. The nature and extent of any restriction is not explained. On examination of the remainder of upper limbs he notes complaints of tenderness on palpating the lateral aspect of the head of the radius of the elbow and right medial epicondyle. There was mention of hyperaesthesia. However, none of these observations would appear to reduce range of movement as required in the table and as the prescription in that table is interpreted in the Amorbieta decision (supra). Dr Berry's observations on examining Mr Leek appear to provide him with stronger support for an assessment under table 9.1 but restrictions were only at the extremes of movement and, consistently with the observations of the other experts, would appear to be restrictions induced by avoidance of pain and discomfort rather than inability.
The Tribunal finds that the Applicant has a nil impairment under table 9.1.
As regards table 9.4, counsel for the Applicant argued for a 20% impairment on the basis that the Applicant has no digital dexterity or has difficulties grasping and holding. There is very little hard evidence as to Mr Leek's grasping and digital dexterity. In his oral evidence the Applicant mentioned that he would need help to fit an industrial belt to equipment, that he loses strength when using hand tools to tighten or loosen nuts and that he can drop a cup or screwdriver if he happens to stand in the wrong way. The Tribunal notes that in Re Peters and Australian Postal Corporation (unreported, 23 August 1994, AAT number 9680) the Tribunal held that a minor degree of digital impairment would not satisfy the requirement in table 9.4 for "difficulty with digital impairment". A severe impairment would be required. In the view of the Tribunal such a degree is not demonstrated here.
The Tribunal comments that the permanent impairment assessments by the medical experts are not very helpful in this case. The Tribunal has been left to its own assessments based on its interpretation of the Comcare guide and the helpful comments of counsel. Dr Cameron provides assessments but does not justify them. Dr Berry addresses tables 9.1 and 9.6 reasonably fully but does not take account of the Amorbieta principles (supra). Dr Mahony has two attempts at providing assessments (Exhibits A5, A6). In Exhibit A5 he does not refer to explicit tables. His gradings do not make sense. In Exhibit A6 he refers to tables 9.4 and 14.1. He includes matters in table 9.4 that do not relate to that table. Dr Wolfenden does not identify what table attracts what rating in Exhibit A8, and in Exhibit A12, when he has a second attempt, he assesses a 20% whole person impairment as to the right upper limb which "would be the same whether using Table 9.1 or Table 9.4". This comment is not apposite given the nature of the tables. His ratings are therefore difficult to apply.
The Tribunal finds that the Applicant has a nil percentage impairment under table 9.4.
Conclusion
The result of the above analysis is that the Applicant is accepted as having an ongoing permanent impairment, notably of the cervical spine. However, the whole person impairment implications of the Applicant's injuries amount to only 5%. This is insufficient to justify an award under ss 24 and 27 of the Act (s 24(7)).
Decision
The Tribunal affirms the decision under review.

I certify that the 83 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member.
Signed:         .....................................................................................
  Associate
Date of Hearing  17 May 2000
Date of Decision  26 April 2001
Representative for the Applicant              Mr R Taylor
Representative for the Respondent        Mr B Kelly