Maddrell and Australian Postal Corporation - [2000] AATA 875

DECISION AND REASONS FOR DECISION [2000] AATA 875

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1969

GENERAL ADMINISTRATIVE DIVISION       )
           Re      HELEN MAREE MADDRELL
  Applicant
           And    AUSTRALIAN POSTAL CORPORATION
  Respondent

DECISION

Tribunal Ms G Ettinger Senior Member

Date29 September 2000
PlaceSydney

Decision The Administrative Appeals Tribunal affirms the decision of the Australian Postal Corporation dated 17 September 1999 as affirmed by the Reconsideration Section on 9 November 1999 to refuse the Applicant, Ms Helen Maree Maddrell compensation in respect of her claim for permanent impairment of the neck and left upper back pursuant to sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1988.

..............................................
Ms G Ettinger
Senior Member
CATCHWORDS
Compensation – soft tissue injuries to neck, back and shoulders including motor vehicle accident - whether permanent impairment exceeds 10% threshold - decision affirmed

LEGISLATION
Safety Rehabilitation and Compensation Act 1988 ss 4, 24 and 27
Comcare Guide to the Assessment of the Degree of Permanent Impairment

REASONS FOR DECISION

29 September 2000 Ms G Ettinger Senior Member

The decision under review before the Administrative Appeals Tribunal (the Tribunal") was the decision of the Australian Postal Corporation ("Australia Post") dated 17 September 1999 (T45) as affirmed by the Reconsideration Section on 9 November 1999 (T49) to refuse the Applicant compensation in respect of her claim for permanent impairment of the neck and left upper back pursuant to sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 because the degree of impairment was held to be less than 10%.
The Applicant was represented by Mr A Capelin, of counsel, who was instructed by Mr P Rogers of Moroney Rutter & Mantach Solicitors. The Respondent was represented by Mr N Polin, of counsel, who was instructed by Ms J Flanagan of Hunt & Hunt Solicitors.
ISSUE BEFORE THE TRIBUNAL
The issue to be decided was:

Whether the Applicant was entitled to compensation for permanent impairment pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 ("SRC Act");
In order to reach a decision on the above issue, the Tribunal was required to consider whether the Applicant's injury satisfied the 10% permanent impairment threshold pursuant to section 24 of the SRC Act to be determined in accordance with the Comcare Guide to Assessment of the Degree of Permanent Impairment ("Comcare Guide").

PRELIMINARY MATTERS

It was not disputed, and I was satisfied that the Applicant had suffered a soft tissue injury to her neck and left upper back pursuant to section 4 of the SRC Act, and that liability for a work related injury had previously been accepted.
Therefore, I had only to consider whether the Applicant had suffered a permanent impairment and had whether she exceeded the 10% threshold for permanent impairment as required by section 24 of the SRC Act in accordance with the Comcare Guide.
LEGISLATION
The relevant legislation was the Safety, Rehabilitation and Compensation Act 1988, in particular sections 4, 24 and 27.
While the issue of the Applicant suffering an injury in accordance with section 4 of the SRC Act was not in dispute, I have for completeness, reproduced this section in these reasons. Section 4 of the Act provides:
"4. (1) In this Act, unless the contrary intention appears:
...
"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;
...
"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;
..."

Sections 24 and 27 of the Act deal with permanent impairment and follow as relevant:
"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.
24(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.
24(3)Subject to this section, the amount of compensation payable to the employee is such an amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
24(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).
24(5)Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
24(6)The degree of permanent impairment shall be expressed as a percentage.
24(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.
….
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.
…"

THE EVIDENCE BEFORE THE TRIBUNAL

The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and the following exhibits.
ITEM DATE NAME
Medical Report of Dr P Spittaler Consultant Neurosurgeon 25 November 1999 Exhibit A1
Letter from Moroney Rutter & Mantach to Dr P Spittaler         4 July 2000    Exhibit A2
Letter from Moroney Rutter & Mantach to Hunt & Hunt 31 July 2000 Exhibit A3
Medical Report of Dr P Spittaler    17 July 2000 Exhibit A4

Oral evidence was given by the Applicant, Ms Helen Maree Maddrell.
EVIDENCE OF THE APPLICANT MS HELEN MAREE MADDRELL
The Applicant, who was born on 30 June 1950, gave evidence before the Tribunal that she commenced working as a cleaner with the Respondent on or about 6 July 1986 at the Broadmeadow Mail Centre. Ms Maddrell said that her duties involved all activities associated with cleaning, including dusting, mopping and polishing. Initially, she said that she worked six hours per day, which was later increased to seven hours and 21 minutes.
Ms Maddrell gave evidence that on 10 January 1989 she sustained an injury to her neck while she was cleaning lights. She said that at the time she had been standing on a trellis-type structure using a vacuum cleaner to dust overhead when she moved her neck awkwardly back, throwing her neck out. She said that after the incident her neck was not only painful but also very tight and stiff and the pain would flare up if she did anything to aggravate it. Ms Maddrell said that she attended her doctor for her injuries, but she could not confirm whether it was on the same afternoon or the next morning.
Ms Maddrell said she suffered a further accident involving her neck on 7 March 1990. She told the Tribunal that she was cleaning some air-conditioning vents when she was struck on the head by a ladder that had been blown from the grasp of a nearby technician. The Applicant said that the injury did not affect her neck as such, and that she did not take any time off work for the injuries she sustained.
The Applicant suffered a further injury on 19 March 1990 when removing rubbish from a bin. She said as she bent over to pull the bag out of the bin she felt a sharp pain extend from her back up to her neck, and had to be helped up.
Ms Maddrell also gave evidence that on 29 October 1994, she was involved in a serious motor vehicle accident when she was driving home from work and further injured her neck. She said that she did not feel the pain straight away as she was in shock but that her neck was very painful following the accident. Ms Maddrell said that she took one to two weeks off work and when she returned to work, she was restricted to light duties. The Applicant also said that her neck was much worse than it was prior to the accident and that physiotherapy did not give her any relief.
Ms Maddrell gave further evidence of an aggravation of her neck injury when she was stripping and resealing floors in March 1995. This process, she said, had been instituted in approximately 1991 or 1992, and was carried out every March and September. It involved the stripping, scrubbing, polishing, buffing and resealing of the mail centre floors over a six week period. Ms Maddrell said that in March 1995 she aggravated her neck injury as a result of the constant use of the heavy machinery required to carry out the task. She said that due to ongoing problems with her neck, she was assisted by other cleaners during this time, who did the heavy work for her so that she could rest.
The Applicant said that she again injured her neck in September 1995 when stripping and resealing the floors, but that this time the pain also affected her right arm, and she lost use of it.
The Applicant was attended to by Dr Accardi, general practitioner, who referred her to Dr P Spittaler, consultant neurosurgeon, on 17 March 1998. Dr Spittaler referred her for a number of investigations including CT Scans, X-rays and MRI Scans. The MRI, she said, revealed a disc protrusion in the neck together with soft tissue injury. Ms Maddrell also said that Dr Spittaler recommended that she undergo a cervical discectomy which was performed on 19 October 1998 at the Lingard Private Hospital. She was hospitalised for five days and was off work for six weeks.
The Applicant gave evidence that in the few weeks following the operation, the pain in her neck was not as bad, and that the problems she had with her shoulder and arm had been resolved substantially. However, when she returned to work on light duties, she felt discomfort in her neck region straight away. She said that she did very little while at work and was being trained in using computers. She said, however, that she could only tolerate half an hour of computer work at a time.
As to her present complaints; the Applicant said that she suffered pain in her neck daily and that her neck condition had deteriorated since the operation, although she did experience pain-free periods throughout each day. The pain that she experienced was a tight and burning sensation which travelled down her right arm and became worse when aggravated by certain activities which included doing her hair and makeup. Ms Maddrell said that when her neck was very painful, she took analgesics, which made her drowsy, and she went to bed. The Applicant said that she would experience this type of pain once a week or once per fortnight, and that it would last one to two days.
Ms Maddrell gave evidence that her neck pain affected her ability to carry out housekeeping chores and she was unable to be as meticulous as she would like. She said that her neck pain was aggravated by vacuuming, hanging washing on the line, walking and driving, the latter two of which she could only do for an hour at a time. Ms Maddrell said that she sometimes slept in a single bed as she was unable to make her double bed. She also said that she found long distance travelling very difficult and suffered considerable pain and discomfort in a recent train trip to Queensland, requiring her to lie on the floor during the journey.
When questioned about her range of movement in the neck, the Applicant was very open and frank about her ongoing problems saying that she could still get around despite her pain as she was trying to live with it and avoid being in a "cocoon". However, the Applicant said her social life had been considerably restricted due to the pain and that since 1995, she had been unable to continue with her pre-accident hobbies of knitting, crocheting and calligraphy because the use of her hands and arms, together with fixed neck and shoulder positions caused her pain. Ms Maddrell gave evidence that her days were very boring now that she had ceased working. She said that she would spend her time visiting her mother or grandchildren or catching up with former workmates for lunch. She also said that she was able to watch television for a little while if she lay on the floor and changed positions regularly. She told the Tribunal that she been on an outing to the vineyards for the day, on the weekend before the hearing. As a result however, her neck pain was so bad following the outing that she went to bed Sunday evening and did not get up until Monday afternoon.
Ms Maddrell told the Tribunal that with her condition deteriorating, she had consulted Dr Spittaler in March or April of this year. He had recommended that the next step in the treatment of her neck injury was to undergo a further operation involving fusion. Ms Maddrell said however that she was not willing to consider that treatment option at the present time.
MEDICAL EVIDENCE
The Tribunal had before it a number of medical reports, which are reviewed below.
medical evidence of dr p spittaler consultant neurosurgeon
Dr Spittaler, whose reports dated 25 November 1999 (Exhibit A1) and 17 July 2000 (Exhibit A4), and various treatment reports at T33 were before the Tribunal, treated the Applicant in respect of her neck injuries. Upon initial examination, the Applicant's "neck movements were painful, particularly flexion and lateral flexion to the right" (Exhibit A1). Dr Spittaler documented the pain history given by the Applicant at the time of the initial consultation as being:
"She was driving home from work when she was hit on the passenger side by a semi-trailer at Bennetts Green on the Pacific Highway. Following this she developed neck and left shoulder pain and sensory disturbance in the fingers. These symptoms were relieved by physiotherapy but recurred in 1995 and were quite persistent. In 1997 the patient had a significant flare-up and was treated with physiotherapy with little relief … the neck pain was associated with right shoulder and arm pain.

His assessment of the Applicant's injuries was that Ms Maddrell suffered from:
"… ongoing neck pain which will fluctuate depending on the amount of physical activity she undertakes … Based on the patient's ongoing neck symptoms and arm symptoms I believe that she has a whole person impairment of 15%."
With the benefit of radiological investigations, Dr Spittaler (T33/144) noted that the Applicant suffered a moderate C6/7 disc prolapse causing cord compression and right sided nerve root compression which explained the right arm pain.
Dr Spittaler later qualified his earlier assessment of the Applicant by stating at Exhibit A4 that:
"I do believe Miss Maddrell has limitation of the normal range of her cervical movement and this would be in the order of 50%. On this basis alone the patient could be said to have a permanent impairment of the efficient use of the neck and according to the table you have provided this would equate to 15% impairment."

medical evidence of dr r accardi general practitioner

Dr Accardi's reports dated 1 February 1998 and 25 February 1999 were at T27/130 and T51/251 respectively, and medical certificates at T21/79-84, T21/87-103 and T44/201 were also before the Tribunal. He opined at T27/131 that the Applicant's neck complaints were two fold:
"A) a peripheral one, namely, a soft tissue injury of L neck and shoulder which is most defintely (sic) a result of the motor vehicle accident which occurred in 1994
B) a cervical spine problem (? Disc lesion) which also causes pain radiating to her R shoulder and neck."
Dr Accardi, whilst unable to ascertain the precise cause of the Applicant's cervical spine problem, stated that:
"What is certain is the aggravation of her symptoms in concomitance with specific duties at work, namely, the stripping and sealing of floors."
Dr Accardi reassessed the Applicant's injuries on 3 August 1999 (T44/201) and opined that the Applicant suffered from a 10% whole person impairment due to the following:
"…chronic soft tissue injury of the neck … post – C5-C6 discectomy."

He further opined that the Applicant's injuries were manifested in the form of :
"… severe limitation of neck movements … a significant limitation in daily activities."

medical evidence of dr p youssef rheumatologist

Dr Youssef reported on 10 February 1998, (T28), of his examination of the Applicant on behalf of the Compensation Section of the Respondent. He documented the complaints of the Applicant as follows:
"At present her major pain is in the neck, between the shoulder blades and across the shoulder girdle bilaterally. She is unable to sit for long periods. She finds vacuuming at home very difficult as well as driving a car. She currently does not sleep well at night and is getting depressed and teary and beginning to isolate herself. She enjoys her work but feels that at present she can only cope with office duties."
Following his clinical examination, Dr Youssef opined that the Applicant suffered from :
"… whiplash injury from a motor vehicle accident in October 1994, which probably resulted in facet joint strain in the cervical spine on the left side and pain in the cervical spine and shoulder girdle. These symptoms appear to have been aggravated intermittently at work, especially when resealing the floors. In 1997, she appears to have developed rotator cuff tendonitis in the right shoulder which has settled. Her most recent symptoms are suggestive of fibromyalgia with symptoms of tiredness, lethargy and sleeplessness and examination findings of multiple tender points. Her radiology only shows minimal cervical spondylosis and certainly not enough to explain her current symptoms." (T28/133)
As to the relationship between her ongoing neck complaints and her employment with the Respondent, Dr Youssef stated that:
"There is a relationship between the diagnosis of musculoligamentous strain of the cervical spine and her employment. Clearly her work with machinery and cleaning involved a strain on the cervical spine. However, the fibromyalgic symptoms are unlikely to be related to her work but would be exacerbated by her work."

medical evidence of dr g carr rheumatologist

Dr Carr provided a further assessment of the Applicant for the Respondent, and his report was T34 before the Tribunal. Dr Carr disagreed with the diagnosis of fibromyalgia, and stated that the Applicant's problem:
"… is that of C6/7 cervical disc protrusion with subacute and continuing pain in right arm and left arm … her pain is related to her localised disc pathology in her neck."
In assessing the Applicant's related problems in her arms, Dr Carr opined that:
"Helen has not had any right arm pain up until July 1997 and to this extent I don't think that the car accident of 1994 was the cause of her cervical disc prolapse. It had however, aggravated underlying degenerative disc disease and she had had intermittent left cervico-brachial pain since that time."

Dr Carr also examined the relationship between her employment and her neck pain. He opined that the Applicant's shoulder be restricted in her cleaning duties, as her neck pain was aggravated by her work. He said at T34/154:
"I think that Helen will get back to work in the future but not in any work that involves use of the arms above shoulder height, or in work that involves lifting or carrying or cleaning type duties …"

medical evidence of dr j evans orthopaedic surgeon

Dr Evans, in his report dated 21 May 1999 (T38), documented the Applicant's current complaints as involving a neckache:
"… at the base of the neck and between the shoulder blades and she has ache across the top and back of the left shoulder at the upper arm."
He recorded the history he took from the Applicant as follows:
"Symptoms are provoked by vacuuming and general housework. Prolonged driving, for say, more than an hour, also provokes symptoms. Carrying a handbag can start the symptoms even if she carries it on the right side."
Dr Evans, in his assessment of the Applicant for the purposes of her compensation claim, stated that the Applicant:
"… has quite a large C5/6 disc prolapse which has now been treated surgically and the problem has, to some degree, resolved. I believe this disc prolapse arose as a result of the nature and conditions of her work with Australia Post …
As stated above she has been considerably improved by the operation but continues to have neckaches and aches into the left upper arm, and continues to be unable to do her normal work."

medical evidence of dr r cameron consultant surgeon

Dr Cameron examined the Applicant and provided a report dated 8 September 1999 to the Compensation Section of Australia Post (T44). He assessed the Applicant in accordance with the Comcare Guide as suffering from a:
"… 5% whole person impairment when assessed in accordance with Table 9.6 resulting from her current neck condition."

In reaching this assessment of the Applicant's whole person impairment, Dr Cameron provided the following diagnosis and opinion as to the Applicant's complaints:
"Mrs Maddrell is a 49 year old cleaner who gave a history of injury in a work-related motor vehicle accident on 29/10/94. The history was consistent with the diagnosis of mild musculoligamentous strain temporarily aggravating pre-existing degenerative cervical spondylosis. Ms Maddrell also reported a number of strain injuries at work, further aggravating her cervical spondylosis. The history given to me today suggested such an aggravation in 1997 led to symptoms of right arm pain associated with disc prolapse. I note an alternative history in the documentation suggesting that such a precipitation occurred at home."

medical evidence of professor j holland consultant neurologist

Professor Holland, whose reports were before the Tribunal at T48, particularly his reports dated 2 November 1999 and 18 November 1999, provided an assessment of the Applicant's permanent impairment for the purposes of her workers compensation claim. He opined that:
"… using the Winer et al, criteria for her neck, bearing in mind that she has only been able to perform light duties at work and had a proven disc for which she has required surgery, she has a disability of 20%."

However, when requested to reassess the Applicant according to the Comcare Guide, Professor Holland provided a further opinion as to the Applicant's percentage impairment. In doing so, Professor Holland stated that:
"Using the criteria there one could not come up with a percentage impairment any greater than 9% at the absolute maximum, which of course…penalises Mrs Maddrell. The defects of the scale are that it makes no allowance for any sensory disturbance, nor the fact that she has had surgery, which the Winer, et al criteria do. The criteria given in this current table are wholly related to neck movement, and of course she certainly has much less than 50% restriction of normal range of movement."

medical evidence of dr g bateman nuclear physician

In a MRI scan of the cervical spine on 26 May 1998, which was conducted by the Hunter Health Imaging Service, Dr Bateman diagnosed the Applicant as suffering from:
".. significant compression of the cord at the C6/7 level due to a posterior and right sided large disc protrusion". (T21/85)

SUBMISSIONS AND CONCLUSIONS

Having heard and read all the evidence, I had to take into account the legislation as well as the submissions of both parties to make the correct and preferable decision regarding the Applicant's entitlement to compensation for permanent impairment pursuant to sections 24 and 27 of the SRC Act. I was mindful that entitlement to compensation pursuant to section 24 of the SRC Act is only available where the permanent impairment reaches a threshold of 10% whole person impairment, and that any section 27 entitlement is calculated by taking into account how any permanent impairment affects the person's life including mobility, social and other factors.
As stated previously in these reasons, I accepted that there was no dispute the Applicant suffered from an injury to her neck and left upper back for which liability had been accepted by the Respondent, and I further accepted that she suffered pain from her injury to her neck.
I turned my attention then to whether the Applicant's permanent impairment reached the threshold or exceeded 10% as required by section 24(7) of the SRC Act, mindful that permanent impairment must be calculated in accordance with the Comcare Guide to the Assessment of the Degree of Permanent Impairment pursuant to section 24(5) of the Act.
Mr Capelin submitted for the Applicant that she was frank and open in her evidence and did not seek to exaggerate her injuries. I agreed with Mr Capelin in this respect and accepted the veracity of the Applicant's evidence. I also noted the comments of the doctors who found Ms Maddrell very pleasant and co-operative, and found her to be so in her role as the Applicant at the Tribunal.
Mr Capelin further submitted that the Applicant's claim rested on the medical evidence which was before the Tribunal. He submitted that of all the doctors whose reports were before the Tribunal, Dr Spittaler was the only specialist who had treated the Applicant on a regular basis, and the only doctor who operated on the Applicant's injured neck. He then submitted that the loss of range of movement in the range of 50%, which Dr Spittaler posited, resulted in a 15% permanent impairment of the neck, and should be sufficient to satisfy the Tribunal on the balance of probabilities that the Applicant fulfilled the requirements of section 24(7) of the SRC Act. Mr Capelin submitted that if that was not accepted, then at the very least the Tribunal should be satisfied from the evidence of Dr Spittaler that the Applicant suffered 10% permanent impairment.
Mr Capelin contended that whilst Dr Cameron and Professor Holland had assessed the Applicant as having less than 10% permanent impairment, being 5% and 9% respectively, they had only examined the Applicant on one occasion. He submitted that Dr Youssef's diagnosis of fibromyalgia was so inconsistent with the weight of medical evidence so as to render it of little value to the Tribunal's consideration of the Applicant's claim.
Mr Polin submitted for the Respondent that Table 9.6 of the Comcare Tables was very easy to apply. He said that in order to satisfy the criteria for 10% permanent impairment of the neck, the Applicant had to demonstrate 50% loss of range of movement. In this respect, Mr Polin submitted that the Applicant demonstrated a fairly unrestricted range of movement when giving evidence before the Tribunal and noted she had agreed with him that she was able to move her head from side to side fairly quickly. Moreover, he said, the doctors who had examined the Applicant had also stated that Ms Maddrell had not demonstrated a significant loss of movement. In this regard, Mr Polin drew my attention to the reports of Dr Evans, Dr Cameron and Professor Holland.
He also submitted that Dr Spittaler's assessment of the Applicant as suffering from 50% loss of range of movement was a sympathetic attempt to justify the Applicant's whole person impairment at 15% so that she would fall within the ambit of the Comcare Guide. Mr Polin further submitted that even the Applicant's General Practitioner, Dr Accardi had certified that the Applicant was suffering only 10% permanent impairment. (T44/201).
Mr Capelin submitted that the issue before the Tribunal was medical in nature. He submitted that neither Tribunal nor the legal representatives for the parties were medically trained and thus, were not qualified to give an opinion as to what constituted a normal range of movement.
Notwithstanding, the Tribunal is able to take into consideration the demeanour of the Applicant at the hearing, and in this case, I found the Applicant was able to sit for in excess of half an hour without needing to stretch her neck. I noted further that she was able to move her head from side to side fairly quickly and freely to address both Counsel and myself. In Ms Maddrell's replies in cross-examination, she agreed that she could move her neck reasonably freely.
Mr Capelin also stressed the relevance of the opinions of the Applicant's treating doctors and submitted that as these doctors had treated the Applicant's injuries for a significant period, their evidence should be afforded considerably more weight than the evidence of the doctors who only examined the Applicant once. I do not disagree that treating doctors often know the patient better than others, but am mindful there are other important criteria to also be taken into account, and must assess each piece of evidence on its merits.
Before I turned to the issue of permanent impairment, I noted that the injury sustained by the Applicant to her left upper back was not separately pleaded by the parties during the hearing, although, it was mentioned by her doctors, namely Dr Accardi, Dr Spittaler, Dr Cameron, Dr Evans and Professor Holland. Ms Maddrell's complaints have mainly been with regard to her neck and the main evidence related to her neck. Accordingly, I have not examined the Applicant's left upper back pain as a separate consideration in the assessment of her permanent impairment.
In deciding whether the Applicant fulfilled the requirements of section 24 of the SRC Act, it was necessary to look at the medical evidence as well as the legislation to make the correct and preferable decision as to whether the Applicant's permanent impairment reached the 10% threshold.
Section 4 of the Act defines the term "permanent" as meaning "likely to continue indefinitely" and "impairment" as:
"… the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function."

In determining a claim for permanent impairment, section 24 of the Act outlines the factors that Comcare must consider:
"24(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a)the duration of the impairment;
(e)the likelihood of improvement in the employee's condition;
(f)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(g)any other relevant matters."
The Applicant's claims with regard to injury to her neck and upper back during the course of her employment with Australia Post were as follows:

On 10 January 1989, the Applicant sustained an injury to her neck whilst she was standing on a trellis-type structure using a vacuum cleaner to dust overhead lights.
The Applicant suffered a further injury to her on 19 March 1990 when removing rubbish from a bin.
On 29 October 1994, the Applicant injured her neck in a motor vehicle accident which occurred as she was driving home from work.
The Applicant aggravated her neck condition in March and then again in September 1995 when she was stripping and resealing floors.

I found that although the Applicant claimed her neck problems originated from 1989, it was in the motor vehicle accident in 1994 where she sustained a compensable neck injury. I also accepted that the Applicant had been suffering ongoing problems with her neck since the motor vehicle accident.
In assessing permanent impairment, it is also necessary to see what likelihood there is for improvement in the condition, and in that regard, I noted the comments of Dr Evans when he stated at T38/187 that while:
"… she has been considerably improved by the operation but continues to have neckaches and aches into the left upper arm, and continues to be unable to do her normal work ...
The effects of the injuries and aggravations in the incidents described have been permanent."
Similarly, Dr Cameron stated in his report at T44/198 that:
"Impairment could not be reduced by further medical or rehabilitative treatment."
I accepted the medical evidence of Dr Evans and Dr Cameron that the Applicant's injuries, despite undergoing surgical intervention, have not substantially improved. I also accepted that the likelihood for improvement in the Applicant's injuries was limited also taking into account the prognosis of her general practitioner, Dr Accardi when he stated at T44/201 that the Applicant's impairment would deteriorate.
As to whether the Applicant has taken all rehabilitative measures available, I further noted that Dr Spittaler performed an anterior cervical discectomy upon the Applicant on 19 October 1998 to remove a large disc prolapse and alleviate cord compression. As a result of this surgery, the problems suffered by the Applicant in her arm resolved considerably. Dr Spittaler then assessed the Applicant following surgery and stated that:
"The right arm is vastly better. There is little anaesthesia and the strength is normal. There is some continued pain in the right triceps and I suspect that this is more a fatigue phenomenon than continued root compression." (T33/148)
However, I noted that the Applicant, in her oral evidence, informed the Tribunal that Dr Spittaler recently recommended that due to further deterioration in the neck condition, the next treatment step was that she undergo a spinal fusion. I noted also that the Applicant said that she was reluctant to undergo such a procedure at this time.
I also noted that for the general treatment of her ongoing neck complaint, the Applicant consulted her general practitioner at the time, Dr Harmey, variously since 1994 and then Dr Accardi since 1997. She was then referred by Dr Accardi to Dr Spittaler for specialist treatment for her neck. Dr Accardi also referred the Applicant to acupuncture and physiotherapy as well as the use of a TENS machine for neck pain.
Standing in the shoes of the decision-maker, I was therefore, satisfied that having regard to the requirements of section 24(2) of the SRC Act, the Applicant has suffered a permanent impairment to the neck, but that the condition has not yet stabilised.
Notwithstanding, I then turned to consider whether the Applicant's permanent impairment of the neck met the 10% threshold pursuant to section 24(7) of the SRC Act to be calculated in accordance with the Comcare Guide (section 24(5) of the SRC Act). The applicable table in Comcare Guide to the Assessment of the Degree of Permanent Impairment is Table 9.6 which deals with injuries to the neck. Table 9.6 provides, as relevant:
"DESCRIPTION OF LEVEL OF IMPAIRMENT

%        CERVICAL SPINE
0
          X-ray changes only

Minor restrictions of movement

Loss of half normal range of movement

Loss of more than half normal range of movement

Complete loss of movement

…"

As to the degree of permanent impairment suffered by the Applicant, I was persuaded by the submissions of the Respondent that the Applicant did not demonstrate the 50% loss of range of movement required by the Comcare Guide to meet the 10% permanent impairment threshold. I have preferred the medical evidence of Dr Evans, Dr Cameron and Professor Holland in evidence before me, though I have also considered the expert opinion of treating doctors, Dr Accardi and Dr Spittaler in reaching my decision.
In particular, I noted that Dr Evans, in his clinical examination of the Applicant, stated at T38/186 dated 21 May 1999 that:
"Cervical movements are reduced by perhaps one-quarter and are slightly more restricted in rotation to the right than the left.
The shoulders move freely. There is no tenderness around the shoulders. There is some tenderness on the left side of the neck."
I noted that Dr Cameron made a comparable assessment of the Applicant's range of movement in the neck when he stated at T44/197 dated 8 September 1999 that:
"Posture was erect with a normal cervical lordosis. Free movements of the neck were noted throughout the interview … Ms Maddrell complained of general pain in the back of the neck but there was no local tenderness. Neck movements were minimally reduced with rotation easily reaching 60° to each side and lateral tilt 30° to each side. Flexion and extension were complete."

I was also mindful that Professor Holland reinforced the view that the Applicant only suffered a limited loss of range of movement when he said at T48/219 dated 2 November 1999:
"Neck movements are a little restricted. She certainly has 45 degrees of extension, plus 45 degrees of flexion, as well as 60 degrees of rotation to left and right. She has 30 degrees of lateral flexion to the left which is normal, and 25 degrees to the right with discomfort on the left side of her neck when she does that. She is a little tender, not so much over the paraspinal cervical musculature, but more over the upper thoracic on the left hand side and across the trapezius.
Shoulder movements are normal and full, but with the discomfort on internal rotation of her left arm."

I have also considered the comments of the Applicant's general practitioner, Dr Accardi, as recorded in the Australian Postal Corporation "Compensation Claim for Permanent Injury" form, that the Applicant suffered: "severe limitations of neck movements … a significant limitation in daily activities" which resulted in 10% whole person impairment.
While I recognised that Dr Accardi has treated the Applicant over a considerable period, I was hesitant to accept his assessment of impairment of the Applicant's injuries on the basis that he did not refer to any examination to quantify restrictions in the Applicant's neck movements. Neither did he relate any restrictions Ms Maddrell may have to the Comcare Guide.
I have also considered the opinion of Dr Spittaler, as he was Ms Maddrell's treating surgeon. I noted that in his examination of the Applicant on 17 March 1998, he documented that "…all neck movements were painful, particularly flexion and lateral flexion to the right" (Exhibit A1). I also noted that Dr Spittaler did not at that time, consider there was any evidence to suggest that the Applicant's range of movements was restricted by 50%; further, no limitation in the range of movement in the neck was reported.
It was not until his report dated 17 July 2000 (Exhibit A4) that Dr Spittaler stated that the Applicant has:
"… limitation of the normal range of her cervical movement and this would be in the order of 50%. On this basis alone the patient could be said to have a permanent impairment of the efficient use of the neck and according to the table you have provided this would equate to 15%."

I am minded to give little weight to this most recent report of Dr Spittaler, which was apparently written with the Tribunal hearing in mind. I was mindful that Dr Spittaler not only failed to provide any evidence which would be sufficient to satisfy the Tribunal on the balance of probabilities that the Applicant's cervical movement was in the range of 50% restriction, but that he also failed to qualify which Tables he used to assess the Applicant's percentage permanent impairment.

While I am hesitant to give less weight to the evidence of the Applicant's treating specialist, I have formed the opinion that Dr Spittaler's assessment, whilst helpful to the Applicant, cannot be sustained in light of the weight of the medical evidence before me to the contrary.
In coming to my decision that the Applicant did not meet the 10% threshold, I was mindful of and preferred the comments of Professor Holland when he stated at T48 that:
"Using the criteria there one could not come up with a percentage impairment any greater than 9% at the absolute maximum, which of course.… penalises Mrs Maddrell. The defects of the scale are that it makes no allowance for any sensory disturbance, nor the fact that she has had surgery, which the Winer, et al criteria do. The criteria given in this current table are wholly related to neck movement, and of course she certainly has much less than 50% restriction of normal range of movement."

While I am sympathetic to the pain suffered by the Applicant and accepted that on occasions her neck pain was sufficient to cause her to take to her bed, I am nevertheless, required to stand in the shoes of the decision maker and make the correct and preferable decision according to the law.
The relevant Comcare Table 9.6 requires the Applicant to demonstrate 50% loss of range of movement to meet the 10% permanent impairment threshold. As I have accepted that the Applicant did not have a loss of 50% of the range of movement in the neck, I was unable to find that she met the threshold required by the legislation. Thus, I must affirm the decision of the Respondent to refuse the Applicant compensation in respect of her claim for permanent impairment of the neck.
Notwithstanding, I am mindful that the Applicant is entitled to renew her claim for permanent impairment if in the future she feels her condition has deteriorated further.
DECISION
The Tribunal affirms the decision of the Australian Postal Corporation dated 17 September 1999 as affirmed by the Reconsideration Section on 9 November 1999 to refuse the Applicant, Ms Helen Maree Maddrell compensation in respect of her claim for permanent impairment of the neck and left upper back pursuant to sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1988.

I certify that the 86 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member
Signed:         .....................................................................................
  Associate
Date of Hearing  6 September 2000
Date of Decision  29 September 2000
Counsel for the Applicant        Mr A Capelin
Solicitor for the Applicant         Mr P Rogers
Counsel for the Respondent    Mr N Polin
Solicitor for the Respondent    Ms J Flanagan