MARDI DONOVAN and AUSTRALIAN POSTAL CORPORATION
[2009] AATA 971
•18 December 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 971
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200600746, No V 200600752
GENERAL ADMINISTRATIVE DIVISION ) Re MARDI DONOVAN Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Regina Perton, Member
Kerry Breen, MemberDate18 December 2009
PlaceMelbourne
DecisionThe Tribunal sets aside the decisions under review and substitutes the following:
(a)from 26 May 2006 to the present date, and at the present date, the applicant, continues to suffer incapacity and impairment as a result of an injury identified as disrupted lumbosacral disc which gives pain to the back and left leg arising out of the course of her employment with the respondent;
(b)the respondent shall pay the applicant:
(i)lump sum compensation in respect of (a) permanent impairment, pursuant to section 24 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) for 28 per cent impairment of the whole person under Table 14.1 of the first edition to the Guide to the Assessment of the Degree of Permanent Impairment (the Guide) (made up of a 10 per cent impairment under Table 9.6 and 20 per cent under Table 9.5) and (b) non-economic loss, pursuant to section 27 of the SRC Act in accordance with the applicant’s responses to the non‑economic loss questionnaire dated 27 February 2006;
(ii)the costs of medical and related treatment expenses incurred in respect of the injury pursuant to section 16 of the SRC Act;
(iii)weekly payments of compensation in respect of incapacity for work for all periods when the applicant’s ability to earn was less than the normal weekly earnings pursuant to section 19 of the SRC Act; and
(c)the respondent shall pay the applicant’s costs and disbursements pursuant to section 67 of the SRC Act.
The Tribunal remits the matter to the respondent to calculate the amounts payable to the applicant in accordance with this decision.
(sgd) Regina Perton
Presiding Member
COMPENSATION – whether injury compensable – whether injury arose in the course of employment – whether effect of injury ongoing – permanent impairment - decision set aside
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 19, 24, 27, 28, 67
REASONS FOR DECISION
18 December 2009 Regina Perton, Member
Kerry Breen, Member1. Mardi Donovan works for the Australian Postal Corporation (Australia Post). On 4 March 2002 Ms Donovan lodged a claim for compensation for a back injury that she had sustained that day. On 13 March 2002 Australia Post accepted liability for musculoskeletal back pain. On 5 October 2003 Ms Donovan suffered another back injury at work. She lodged a claim for compensation on 5 November 2003. On 14 November 2003 Australia Post accepted liability for musculoskeletal back pain. Australia Post placed Ms Donovan on a rehabilitation program and she was restricted to certain duties. On 4 November 2004 Ms Donovan sustained a third back injury at work, for which Australia Post accepted liability. She was certified as unfit for work until 28 November 2004.
2. On 27 February 2006 Ms Donovan lodged a claim for permanent impairment in relation to her back injuries. On 8 May 2006 Australia Post decided it was not liable to pay compensation to Ms Donovan for permanent impairment. On 26 May 2006 Australia Post determined that it had no ongoing liability for Ms Donovan’s back injury.
3. On 21 July 2006 Australia Post reconsidered Ms Donovan’s claim for permanent impairment but affirmed its original decisions. On 22 August 2006 Ms Donovan lodged with the Tribunal applications for review of Australia Post’s decisions in relation to permanent impairment (File Nº V200600746) and ongoing liability (File Nº V200600752) for the back injury.
ISSUES
4. The issues before the Tribunal are:
·Did Ms Donovan sustain back injuries in the course of her employment with Australia Post?
·If so, did the impact of the injuries continue beyond 26 May 2006?
·Is Ms Donovan permanently impaired as a result of work-related back injuries?
·If so, what is her level of permanent impairment?
RELEVANT LEGISLATION
5. Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) provides:
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
6. Section 4 of the SRC Act, as it was at the relevant dates, provided:
(1) In this Act, unless the contrary intention appears:
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.
…
aggravation includes acceleration or recurrence.
...
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.
...
(9)A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a)an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
…
7. Section 16 of the SRC Act provides for the payment of compensation in respect of reasonable medical expenses incurred as a result of an injury, and section 19 provides for the payment of compensation for incapacity for work resulting from an injury.
8. Section 24 of the SRC Act provides for the payment of compensation for injuries resulting in permanent impairment:
24 Compensation for injuries resulting in permanent impairment
(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee’s condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.
…
(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.
…
The words permanent is defined in section 4(1) of the Act as follows:
permanent means likely to continue indefinitely.
9. Section 27 of the SRC Act states that compensation is payable for non‑economic loss where an employee suffers a permanent impairment and compensation is payable in respect of an injury. It sets out a formula for its calculation.
10. Section 28 of the SRC Act sets out the criteria that should be set out in the Guide to Assessment of the Degree of Permanent Impairment (the Guide) prepared by Comcare.
Ms DONOVAN’S EVIDENCE
11. Ms Donovan started working with Australia Post in 1987. She left in 1992 to have her first baby. Ms Donovan returned to Australia Post in August 2001 on a part-time basis.
12. Ms Donovan’s account of her health problems is contained in several documents tendered to the Tribunal. These include her statement dated 14 November 2008, the histories recorded by the various specialists she saw for treatment or for medico-legal reports, the records of her general practitioners and the transcript of her oral evidence to the Tribunal. The Tribunal observes that these accounts were quite consistent over time. The various accounts reflect a degree of stoicism and no tendency to embellish or exaggerate her difficulties.
13. Ms Donovan told the Tribunal that in March 2002 she was working at Australia Post’s Moe Delivery Centre on a four-hour mail-sorting shift that ran from 3.00 am to 7.00 am. She described this work as unloading containers of letter trays, parcel bags and sometimes Express Post bags. She described the circumstances in which she injured herself on 4 March 2002 at approximately 5.10 am as follows:
…The mail was all getting sorted and I went out to get the express posts and put them into the dreadnought, and it was sitting on one of the containers, and I put my arms under it just to scoop it up, and turned to my left, and it was heavier than what I expected and it, sort of, tippled me to the left and I, sort of, fell into the container, sort of, twisting, and a colleague that was there at the time came and helped me and I felt some pain, and then after we, sort of, finished up, the pain slowly increased over a period of time through the day.
14. When asked about the weight limits for items lifted from containers, Ms Donovan stated that the large letter tubs are to be no more than 15 (kilograms) and that the bags are to be no more than 15 (kilograms). She stated that she believed that the item she was lifting when she injured her back was about 20 kilograms.
15. Ms Donovan described experiencing a burning ache in her lower back all that day. The pain was such that while visiting her mother in hospital at around 1.00 pm the same day, she collapsed beside her mother’s bed and was taken by ambulance to Latrobe Hospital. There she was prescribed Panadeine Forte. No x‑rays were taken. Ms Donovan visited a general practitioner, Dr Ruth King, the same day and was given a certificate for some time off work.
16. Ms Donovan’s account to the Tribunal was consistent with the record made in a contemporaneous incident report:
while unloading ULDs I lifted a large letter bag and placed it into a dreadnought and weighed about 20 kilograms. … A little while later I felt pain in my lower back and it began to hurt more and more as the morning went on.
17. Ms Donovan stated that her lower back pain then eased off but has never gone away. She said that it was more troubling when she undertook such tasks as lifting her child, mopping floors or getting onto a horse. At work she relied on her colleagues’ help so that she could avoid lifting and bending.
18. Under cross-examination Mr Seit, counsel for Australia Post, asked Ms Donovan about the gap in time between visits to her general practitioner on 6 March 2002 and 3 May 2002. Mr Seit referred to her doctor’s note on the latter visit, where Dr King recorded that Ms Donavan Developed pain in lower back since gardening yesterday. Now pain in left leg. Mr Seit suggested that this record reflected a new problem rather than an exacerbation of her work injury. Ms Donovan denied this possibility and stated that her back pain during those weeks came and went in relation to the physical activities she attempted.
19. On 5 October 2003 Ms Donovan suffered a further injury at work at the Gippsland Mail Centre while attempting to pull a trolley jack loaded with a container weighing around the 900 kilo mark. She described the result of that injury was a hot burning pain in her lower back with associated nausea.
20. Ms Donovan could not initially recall any back complaint prior to the injuries in 2002 and 2003. When reminded, she was able to give an account of an injury to her thoracic spine sustained in 1992. She described this as an injury to her upper back sustained in a collision playing bumper cars. This led to hospitalisation where she spent about four or five days lying flat in bed. She stated that she made a full recovery and experienced no further difficulties. When prompted by an entry in her medical records that read Jarred back when car had to brake hard, she was unable to recall the event.
21. Ms Donovan described the pain as fluctuating depending on what she was doing at both home and work:
…At home it can be from making the bed to vacuuming the floor. Anything sort of leaning forward, washing the floors. At work - well, because I’ve got a lot of restrictions at the moment – I stand or sit, depending on the workload. I try to rotate my duties so I’m not standing and doing the same thing for – for four hours. Hobbies? I don’t horse- ride anymore. I don’t run with the children.
22. In addition to the pain in her lower back, Ms Donovan said she experiences an aching pain in her left leg down to her knee, weakness - which she described as laziness in that leg and a tendency to sort of drag it or limp. She also described difficulty walking upstairs. She is unable to take each step with alternate legs but having to always use her right leg and then bring her left leg up to that level.
23. Ms Donovan said that she has requested a transfer within Australia Post so that she would not be a burden on colleagues, even though this involved her accepting a lower rate of pay.
24. Ms Donovan stated that prior to the 2002 injury, she had been a very active person. She enjoyed riding horses. She said that there had been no limitations in her family life, which included caring for two young children. Nor were there any restrictions in her social or work activities.
25. Ms Donovan described the limitations she experienced after the injury. She was restricted in the housework she could do. Her older daughter, in her late teens, and a son of a similar age provided a significant amount of help. When asked about her capacity to walk around her country home, she stated that she could walk down hill real good but coming back up she walked very slowly… the incline hurts to come back up. Ms Donovan said that before her injury she was able to walk a couple of kilometres with two large dogs straining on a leash. Now she was able to walk a kilometre uphill to meet her child at the bus stop. However, towards the end of that distance she was in pain and had to walk more slowly. Ms Donovan reported difficulty getting to sleep because of back pain and difficulty with prolonged sitting, which caused backache and numbness of her left leg.
26. Concerning her level of disability since the injury, it was clear to the Tribunal that Ms Donovan had made every attempt to remain active at work and in her private life. This impression is similar to the assessment made by the orthopaedic surgeon, Dr Richard Pease, in 2004 (see below). Nevertheless she recounted a number of limitations that are consistent with some degree of permanent disability, including times when her left leg feels very tired and it drags, her limited capacity to walk up stairs normally and the need to be very cautious in lifting weights.
Dr Richard Pease
27. Australia Post sought an opinion from Dr Pease, an orthopaedic surgeon, in a letter dated 7 July 2004. The letter summarised Ms Donovan’s claims in relation to the event of 5 October 2003 and the earlier incident of 4 March 2002. Australia Post requested of Dr Pease that he assist to establish the current status and prognosis of Ms Donovan’s condition and provide a more accurate diagnosis of the condition she suffers. A schedule of nine questions was attached to the Australia Post letter.
28. Dr Pease examined Ms Donovan in Morwell on 15 July 2004 and wrote a report to Australia Post dated 19 July 2004. In that report he recorded that Ms Donovan told him that she hurt her back on 5 October 2003 while using a trolley jack to lift a ULD that weighed 800 kilograms. He also recorded the account given of the earlier injury on 3 March 2002 as follows:
She describes an injury to her back occurring on 3rd March 2002 when she picked up a canvas bag of mail which she estimated weighed 21 kilograms. The bag was unexpectedly heavy, she stepped back and, “kept going”, she experienced the onset of pain in a [sic] the left low lumbar region.
It appears that her pain caused her to collapse when she was visiting her sick mother in hospital. Subsequent to this event she went swimming, she had some massage. She found it difficult to continue her twice a day swimming programme because of her hours of work.
29. Dr Pease reported that on physical examination, he noted:
…marked left sided tenderness, possibly in relation to the L5/S1 facet joint…Tenderness radiated into her buttock …
…neurological examination appeared to demonstrate significant weakness of knee flexion and extension on the left...
30. Dr Pease arranged for Ms Donovan to have an MRI scan. In his report he describes this as demonstrating:
…significant abnormality at the L5/S1 disc level where the disc is narrow, there is loss of T2 signal where there is an annular tear. The disc bulges somewhat but there is no prolapsed nor any significant nerve root compression.
31. The specialist who performed the MRI scan, Dr C O’Donnell of the Victorian Imaging Group, concluded in his report dated 27 July 2004:
…Dessication of the L5/S1 disc is associated with a central disc bulge and annular T2 brightening indicative of annular disruption. Minor thecal and proximal left S1 nerve root sheath encroachment.
32. In response to the Australia Post’s question of his opinion and prognosis, Dr Pease reported as follows:
Mrs Donovan impressed me as a very genuine and sensible individual, she has good insight into her symptoms and where possible tends to self-manage without seeking medical advice, she has discovered that physiotherapy made her worse. From the information available it would appear that this lady suffered an injury to her lumbosacral disc when she lifted the air heavy bag of mail on 3rd March 2002. There appears to have been a further injury on 5th October 2003. Prior to these incidents she was symptom free, she has had persisting low back pain since.
33. His report went on to add:
…There is no evidence of any pre-existing pathology nor is there any evidence of previous injury.
Her current condition is related to the injury she suffered in 2002, aggravated by further injury or injuries.
Her work-related injury has not resolved, it is not uncommon for this type of injury to persist and cause symptoms for many years if not indefinitely.
Dr Michael Flaim
34. Dr Michael Flaim, a general surgeon, gave oral evidence to the Tribunal. He described himself as practising in the area of industrial health and medico-legal medicine. He saw Ms Donovan at the request of her solicitors. He provided three reports, dated 10 December 2004, 15 December 2006 and 17 February 2009 respectively. He examined Ms Donovan a few days before each of the reports.
35. In his report dated 10 December 2004, Dr Flaim’s account of Ms Donovan’s history accords with that taken by Dr Pease and with the evidence Ms Donovan gave to the Tribunal. His report expanded on the symptoms with regard to Ms Donovan’s left leg, recording:
…
After about six months of symptoms in the back she also developed problems in the left leg, and she noted that the left leg tended to be left behind or lacking in strength with prolonged walking...
36. Dr Flaim was of the opinion that:
…The diagnosis is most likely that of an L5/S1 disc bulge with associated tear and intermittent left sciatic symptoms due to S1 nerve root irritation.
The diagnosis is consistent with the stated cause of lifting in an awkward manner and with pulling.
37. Dr Flaim examined Ms Donovan again two years later on 12 December 2006. In his report of this assessment he noted her history of her symptoms being aggravated by prolonged driving and physical activities including gardening and pulling rubbish bins. He found that the straight leg raising test was positive with low back pain at 60 degrees on the left and underlined his finding that the girth of the left calf was three centimetres less than the girth of the right calf.
38. When Dr Flaim saw Ms Donovan for a third assessment more than two years later, on 12 February 2009, he reported that:
…her symptoms were practically unchanged. They are variable, often depending on prolonged standing, the heavier aspects of housework, sweeping, prolonged driving and walking up hills.
39. Dr Flaim concluded that:
...
She now has a chronic stable situation resulting in low back pain and left leg radiation related to an L5-S1 disc lesion which exerts pressure upon the left L1 nerve root.
40. In his oral evidence, Dr Flaim’s attention was drawn to an entry made by Ms Donovan’s general practitioner on 31 May 2002, two months after her initial back injury which read Developed pain in lower back since gardening yesterday, now pain in left leg. Asked to comment, Dr Flaim responded:
…I think that, clearly, the closer the onset of leg pain to back pain, the more direct the connection. And it’s often the case that a patient who experiences an acute disc prolapse will experience not only back pain but immediate leg pain. ... The further that one goes in time, the less obvious is the connection. However, the one thing that does stand out in Ms Donovan’s situation is the radiological appearance, which supports the contention that the leg pain is related to the disc prolapse. Dr Flaim emphasised that in the early phase of an injury to the lower back it is very difficult to evaluate the underlying pathology and to be sure of the diagnosis in the absence of objective signs of nerve compression.
41. Dr Flaim was asked his opinion about reports that Ms Donovan experienced back pain late in her pregnancy in 1999. He stated that back pain at this time was very common but would only be relevant if the pain continued after the pregnancy.
42. Under cross-examination, Dr Flaim was invited to consider the possibility that the MRI changes noted in 2004 predated the injury sustained by Ms Donovan in 2002 and he replied: That’s in the realm of possibility, certainly. He later described a means of separating musculoskeletal strain from other pathology as follows:
…Except that musculoskeletal strains are soft tissue injuries which generally resolve within six weeks, and if, on the other hand, symptoms persist for much longer than six weeks, then it’s usually the case that an alternative pathology has to be proposed.
Dr Peter Kudelka
43. Dr Peter Kudelka, orthopaedic surgeon, examined Ms Donovan on 10 June 2009 at the request of her solicitors. He provided a report dated 15 June 2009 and gave oral evidence. His record of the account of symptoms given by Ms Donovan was consistent with those recorded by Drs Pease and Flaim. Dr Kudelka described finding 1.5 cm of muscle wasting of the left calf. He referred to new imaging taken in 2007 and 2009 (a CT scan on 9 July 2007 and an x-ray and MRI taken on 10 June 2009). He noted that the MRI of the lumbar spine shows a broad based disc protrusion at L5/S1 pressing on the left S1 nerve root.
44.In answer to questions posed to him, Dr Kudelka’s report stated:
(a)This patient’s clinical history is a mechanical injury to the lumbar spine which occurred while she was lifting and twisting at work in March 2001 [NB this error in date was corrected in his oral evidence].
(b)My diagnosis based on the history, physical examination and radiology is a lumbosacral disc injury with left sciatica.
(c)Her injury to the L5/S1 disc is due to the incident in March 2001[sic].
...
(h)The prognosis is that the patient will always have some back pain and stiffness and some weakness of the left leg, interfering with her mobility.
45. In oral evidence, Dr Kudelka was asked whether Ms Donovan’s back problem might be degenerative and thus not related to the injury she described as occurring in March 2002. Dr Kudelka stated that Ms Donovan’s age at the time of the injury, 33 years, was not a prominent factor in the aetiology of the disc injury.
46. Dr Kudelka described Ms Donovan’s injury in the following terms:
…Well, in as much as my understanding is that her symptoms were quite serious – she spoke to me of fainting and being taken to hospital – it would appear that it was a fairly dramatic thing that affected the disc and it may well have been a split or a tear in the annulus or the casing, similar to, perhaps, you can get a partial blowout or something in a car tyre. The pressure inside causes it to deform spatially and this upsets the mechanics of the area and causes significant pain.
47. When asked by Mr Seit whether he would change his opinion about the causation and nature of the injury of March 2002 if there was a resolution of symptomatology at any stage after that incident, Dr Kudelka replied:
…Not really. Once you injure your back to a significant extent, and the history indicated to me that it was significant, then you have episodes and – in other words, you have partial permanent impairment relating to the original incident, and it varies, as does everything else symptomatically in the body.
Dr Robin Williams
48. Dr Robin Williams, orthopaedic surgeon, saw Ms Donovan at Australia Post’s request on 27 April 2006, 2 August 2007 and 5 February 2009. He provided reports relating to those assessments and gave oral evidence to the Tribunal. In his first report, dated 27 April 2006, Dr Williams’ account of Ms Donovan’s history was consistent with that of other specialists but he made no mention of the weight she was lifting at the time of her first injury. He noted that her local doctor, Dr Thurman, on 3 October 2003 had made again, a diagnosis of a muscular ligamentous cause ... for her pain. In his report, Dr Williams records the findings of the 2004 MRI but concludes that …I regard this as a degenerative change and I do not believe that it resulted from the incidents that occurred in March 2002 or October 2003.
49. In his second report dated 3 August 2007, Dr Williams recorded an account of Ms Donovan’s ongoing difficulties and again concluded that in his opinion her symptoms are best described as being due to musculoligamentous strain. He stated that the MRI changes seen at L5/S1 are in fact degenerative. Dr Williams saw Ms Donovan for the last time in February 2009. His report dated 5 February 2009 indicated that his opinion was unaltered from the previous reports.
50. Mr M Carey, counsel for Ms Donovan, questioned Dr Williams regarding the nature of Ms Donovan’s March 2002 injury. Dr Williams told the Tribunal that the history of injury was a trivial twisting type of injury and I don’t associate that with disc disruptions. He stated that he took a history of Ms Donovan lifting a minimal load ...Well probably five to eight kilograms. Dr Williams appeared reluctant to alter his conclusions in light of the weight Ms Donovan actually lifted in March 2002. However, in response to the last of a series of questions from the Tribunal where he was asked Now that you’ve heard that it was probably 20 kilograms, does that change your interpretation of the injury?, he replied: More severity of injury, yes.
Dr Patrick Chan
51. Dr Patrick Chan, a neurosurgeon and spinal surgeon, examined Ms Donovan on 6 March 2008 at the request of her solicitors. He provided a report dated 17 July 2008. Dr Chan’s record of Ms Donovan’s account of the March 2002 injury was consistent with the account Ms Donovan gave to the Tribunal and with that recorded by all other medical specialists (other than the report of Dr Williams which makes no mention of the weight of the mail bag Ms Donovan was attempting to lift). Dr Chan’s diagnosis was a left S1 radiculopathy secondary to retrolisthesis and L5/S1 disc herniation with S1 nerve root compression. He proposed treatment by way of nerve root injection and stated that her prognosis…depends on her response to the nerve root injection.
Dr Leslie Thurman
52. Dr Leslie Thurman, a general practitioner who had treated Ms Donovan, provided a report dated 12 June 2007 and gave oral evidence. In relation to her March 2002 injury, his report stated that when he saw her on 31 May 2002:
She told me on that occasion that she had strained her low back at work on the 4th March of that year when she lifted a 22 kgs bag of mail. At that time she was still having troubles with low back pain, particularly on twisting movements…
53. When asked whether it was his understanding that the history he took on 31 May 2002 was that Ms Donovan had a continual history of problems she’d had since March, he replied That was my understanding.
The doctors’ assessment of permanent impairment
54. Three medical specialists, Drs Flaim, Kudelka and Williams, provided reports that included an assessment of impairment in relation to the lower back and to the lower limbs. The most recent of these assessments was made by Dr Kudelka on 10 June 2009.
55. Dr Flaim, general surgeon, made an assessment in his 15 December 2006 report based on his examination of Ms Donovan on 12 December 2006 and concluded:
Impairment in the lumbar spine due to loss of less than half normal range of movement in the thoraco-lumbar spine, Table 9.6, 10%.
Impairment related to the left leg because symptoms radiating from the back related to prolonged walking and the use of steps stairs and grades, Table 9.5, 10%. Total impairment using the combined values chart: 19%
56. Dr Peter Kudelka made an assessment when he examined Ms Donovan on 10 June 2009. When he gave oral evidence, he acknowledged that the initial assessment was based upon the wrong edition of the Guide and amended his assessments. (The first edition of the Guide applies in this matter). He stated that using my examination, which was loss of half normal range of movement, he believed she had a 15 per cent impairment of the thoraco-lumbar spine under Table 9.6.
57. Mr Carey submitted that the actual ranges of movement recorded by Dr Kudelka were more consistent with a loss of 65 per cent of the normal range of movement and that this represents a loss of approximately one-third and accordingly should have led to an impairment rating of no more than 10 per cent.
58. In regard to the lower limbs, Mr Carey invited Dr Kudelka to explain how Table 9.5 would apply to Ms Donovan if he accepts Ms Donovan’s evidence that she has difficulty with stairs and experiences problems walking a kilometre up an incline and a kilometre back. Dr Kudelka responded Well, that would be number two, “can rise to standing position and walk, but has difficulty with grades, steps and distances.”
59. The Tribunal is satisfied that the description that Mr Carey gave to Dr Kudelka accurately reflects the evidence given by Ms Donovan during the hearing. The Tribunal accepts Ms Donovan’s evidence as an accurate reflection of her walking difficulties. Dr Kudelka applied Table 9.5 and obtained an impairment rating of 20 per cent. The Tribunal’s evaluation of Dr Kudelka’s impairment ratings is dealt with below.
60. Dr Robin Williams, in his report of the first examination, which took place on 27 April 2006, reported that …Her range of movement she performed during examination was approximately half of what I would expect to be normal for her. However, under the heading of Impairment on page 5 of that report, he stated that in his opinion there was no impairment. In his report of the next examination, which took place on 2 August 2007, he found that …The range of movement she performed in the lumbar area during examination was approximately two-thirds of the range I would expect to be normal for her.
61. Later Dr Williams wrote: …Referring to Comcare Guide, Table 9.6, she has 5% impairment related to minor restrictions of movement. Dr Williams examined Ms Donovan a third time on 5 February 2009 and again found …The range of movement she performed during the examination was approximately two thirds of that I would expect to be normal for her and again stated Under Comcare Guide Table 9.6, in that she has minor restriction of movement, I believe she has 5% impairment.
62. In his oral evidence, Dr Williams conceded that the loss of approximately one‑third of movement would be consistent with an impairment of 10 per cent and that the loss of movement he observed of half the normal range in April 2006 would lead to a finding of a 15 per cent impairment.
63. In relation to Ms Donovan’s lower limbs, Dr Williams consistently reported 0% impairment under Table 9.5. Under cross-examination, counsel put to him Ms Donovan’s description to the Tribunal of her difficulties walking on inclines. He conceded that that account was not dissimilar to the history he had taken. He also conceded that her description of managing stairs represented some difficulty. He was asked to consider if this meant that Ms Donovan thus met the Table 9.5 criteria Can rise to standing position and walk but has difficulty with grades, steps and distances. He conceded some difficulty, yes.
Nature of Ms Donovan’s injury
64. The Tribunal is satisfied that Ms Donovan suffered an injury at work on 4March 2002. The Tribunal is also satisfied that that this injury was sustained when she lifted a weight of approximately 20 kilograms while bending forward, twisting and being at a mechanical disadvantage, by virtue of the heavy object being initially at about shoulder height. While her symptoms evolved a little more slowly than various medical practitioners might have anticipated, the Tribunal is also satisfied that it was this injury that led to disruption of a lumbar disc, severe local pain and subsequent compression of the sciatic nerve. The Tribunal is further satisfied that this injury had the sequellae of pain down the left leg, intermittent weakness of the left leg and paresthesia (pins and needles) in that leg. The Tribunal is also satisfied that the injury suffered by Ms Donovan is permanent and that the injury in October 2003 was an aggravation of the underlying disc disruption. The written reports and the oral evidence of Drs Pease, Kudelka, Flaim and Chan clearly support these findings.
65. The Tribunal does not accept the alternative propositions put forward by Australia Post (based primarily on the report of Dr Williams). Namely, that Ms Donovan’s ruptured lumbar disc was due to the natural progression of an underlying degenerative disorder of her lumbar spine and that the key precipitating incident was an injury, which took place while she was gardening in May 2002. Dr Williams saw Ms Donovan on three occasions but it was not until he appeared at the Tribunal to give oral evidence that he became aware of the description Ms Donovan had given to several other doctors and to this Tribunal of the weight she was lifting when she sustained her injury in 2002.
66. Dr Williams appears to have based his opinion on an early diagnosis by Ms Donovan’s general practitioner of musculoskeletal ligamentous injury. This, together with the clear evidence that all three of his reports were premised on Ms Donovan only lifting five to eight kilograms when she first sustained an injury, leads the Tribunal to place little weight on his opinions. Although Dr Williams was prepared to re-evaluate the degree of impairment now experienced by Ms Donovan when giving oral evidence, he was reluctant to rethink the nature of her original injury. In light of the evidence from the other specialists and his incorrect assumption about the weight lifted by Ms Donovan, the Tribunal gives less weight to Dr Williams’ opinion.
67. It seems unusual that in 2006 Australia Post did not ask Dr Pease to reassess Ms Donovan, as Dr Pease is an experienced orthopaedic surgeon, and it was he who arranged for an MRI scan that led to a clear diagnosis. It is also noted by the Tribunal that Australia Post did not call Dr Pease to give evidence. However, Dr Pease was unequivocal in his interpretation of Ms Donovan’s description of the evolution of her symptoms to him, following the incident at work.
68. Australia Post submitted that the history Ms Donovan gave in her witness statement and to some of the medical experts about previous injuries to her back was incomplete. In 1992 Ms Donovan was injured while in a dodgem car at Broadford. She was airlifted to the Alfred Hospital where she remained for in-patient treatment for four to five days. Ms Donovan recalled that she was told that there were fractures of three vertebrae in her upper back. There was no corroborating evidence available from the Alfred Hospital as to the actual nature of her injuries.
69. On 1 November 1994, while working as a retail assistant, Ms Donovan lodged a claim for compensation for an upper back injury, which occurred after lifting a heavy box. In April and May 1999, Ms Donovan was in the late stages or pregnancy. Latrobe Regional Hospital’s notes indicate that she complained of backache on two occasions. In March 2000, Ms Donovan attended her general practitioner stating that she had jarred her back when she braked her car hard. In February 2001, Ms Donovan attended for a pre-employment medical assessment in respect of proposed employment at Rocklea Spinning Mills. The examination found stiffness and restriction of lumbar movements.
70. The Tribunal accepts that Ms Donovan may not have been as forthcoming about these incidents as perhaps she should have been. However, the Tribunal notes that these injuries were not of the same ilk as the work-related injuries. The dodgem car incident involved Ms Donovan’s upper spine. The pregnancy related back pain is not an unusual phenomenon for women in advanced pregnancy. Forgetting to mention pregnancy-related pain when describing her medical history does not, in the Tribunal’s view, taint Ms Donovan’s evidence about her workplace injury.
71. Mr Seit drew Ms Donovan’s attention to an Australia Post pre-employment medical evaluation that was completed in April 2001. Ms Donovan stated no in response to a question about whether she had ever had an injury or disease at work. Ms Donovan also responded no to a question asking if she had ever had any serious illnesses or fractures. Asked to explain why she had not mentioned the fractures sustained in the dodgem car incident, Ms Donovan stated that she did not think they were serious because she had no further pain or suffering from that.
72. The Tribunal accepts Ms Donovan’s explanation in answering the question about serious illnesses or fractures, as the question was somewhat ambiguous. However, it does not condone her incorrect response to other questions. The Tribunal does not accept Mr Seit’s submission that these responses undermine the evidence Ms Donovan gave in relation to the current matters before the Tribunal. Notwithstanding Ms Donovan’s poor completion of the pre-employment questionnaire, the Tribunal accepts her evidence in relation to her current work‑related injury.
The degree of permanent impairment
73. Mr Seit submitted that the assessments by medical experts under Table 9.5 were dependent upon the account Ms Donovan gave each doctor about her difficulty, suggesting that such assessments were subjective. He also argued that as Ms Donovan had given evidence that her various symptoms with her left leg (namely pain, weakness and dragging) tended to be intermittent and triggered by certain activities, then as intermittent symptoms, they could not be deemed to be permanent impairment.
74. The Tribunal is unable to accept either contention. In assessing Ms Donovan’s description of any incapacity, the medical experts would not only have had regard to that description but must have also related this to their diagnosis and the strength of the evidence on clinical examination and MRI imaging, which supported the diagnosis and thereby supported Ms Donovan’s incapacity. In relation to the intermittent nature of some of Ms Donovan’s incapacity, the Tribunal rejects the suggestion that this does not render her injury and its associated incapacity a permanent impairment. The analogy with a disability such as epilepsy secondary to a head injury should make clear why the case argued by Mr Seit is not accepted.
75. Mr Seit also submitted that in providing his assessment under Table 9.5, Dr Kudelka conceded when questioned that the history given to him did not allow him to comment on Ms Donovan’s capacity to walk distances on flat surfaces. Mr Seit subsequently argued that Ms Donovan had given evidence that she had not tested her capacity for distances on a flat surface, it would not be open to find an impairment rating of 20 per cent under Table 9.5
76. The Tribunal observes that Ms Donovan’s evidence was that she often walked a distance of one kilometre up a hill to meet her children at the bus stop and then walked back down the same grade. She experienced difficulties only when walking up the hill. Table 9.5 (Limb Function-Lower Limb) of the Guide provides for five grades of percentage of whole person impairment. Only the first three need to be considered here in evaluating this contention by Mr Seit, namely:
10Can rise to standing position and walk [BUT] has difficulty with grades and steps
20Can rise to standing position and walk [BUT] has difficulty with grades, steps and distances
30Can rise to standing position and walk with difficulty [BUT] is limited to level surfaces
77. The Tribunal does not accept Mr Seit’s suggestion that it was necessary for an expert medical witness to make a judgement about Ms Donovan’s ability to walk on level surfaces in order to find 20 per cent impairment. The Tribunal accepts that such an assessment would have been needed to find 30 per cent impairment but Dr Kudelka did not make such a finding. To be able to meet the criteria listed for 20 per cent impairment, it was only necessary for Dr Kudelka to be satisfied that Ms Donovan has difficulty with grades, steps and distances. These criteria make no mention of whether the difficulty with distance is on level ground or on grades. The fact that Ms Donovan’s difficulties, as she recounted them, were with grades and distances simultaneously simply reflects the terrain where she is living. There is no mention of level surfaces in this criterion.
78. The Tribunal places more reliance upon the impairment assessments of Drs Kudelka and Flaim than the impairment assessments provided by Dr Williams. The Tribunal finds Dr Williams’ assessments were deemed less reliable due to the inconsistency in his first report between the limited range of back movement he observed and the impairment rating he gave; and because his assessment applying Table 9.5 was premised upon his belief that Ms Donovan had little in the way of problems with her left leg. As the Tribunal has found that Ms Donovan does indeed have an injury that involves her lower limbs, the Tribunal is not prepared to use the impairment rating given by Dr Williams in relation to Table 9.5.
79. In regard to the injury to the lower spine, the Tribunal accepts the impairment rating of 10 per cent under Table 9.6, as awarded by Dr Flaim and Dr Kudelka (and somewhat reluctantly conceded by Dr Williams), as the correct rating.
80. In regard to the lower limb, Dr Flaim recommended a 10 per cent rating; whereas Dr Kudelka recommended a 20 per cent rating. Dr Flaim made his assessment in 2006. Although he wrote of Ms Donovan’s difficulty with prolonged walking, in this report he does not appear to have turned his mind to any difficulties she had with distances. In his report of 15 December 2006, he describes her leg symptoms as particularly with walking up steps, and with walking up hills when weakness and pain prominent. In addition, it is not clear which impairment table he was applying, because after concluding that her impairment rating was 10 per cent under Table 9.5, he wrote that, The relevant descriptor is “can rise to standing position and walk but has difficulty with grades and steps.”
81. In giving his oral evidence, Dr Flaim was asked by Mr Carey:
The question I have for you is, given what you know about her pathology, the symptoms she describes of difficulty going up that incline over a kilometre and coming back, is that consistent with the pathology she has described?
Dr Flaim answered Absolutely.
82. As Dr Kudelka had seen Ms Donovan more recently and had turned his mind to the issue of distance as well as grades and steps, and as Dr Flaim’s oral evidence supported the view taken by Dr Kudelka regarding problems with distances, the Tribunal finds that Dr Kudelka’s assessment of 20 per cent impairment under Table 9.5 is the appropriate assessment.
83. The Tribunal finds that Ms Donovan has a permanent impairment rating of 20 per cent under Table 9.5 of the Guide and 10 per cent under Table 9.6.
DECISION
84. The Tribunal sets aside the decisions under review and substitutes the following:
(a)from 26 May 2006 to the present date, and at the present date, the applicant continues to suffer incapacity and impairment as a result of an injury identified as disrupted lumbosacral disc which gives pain to the back and left leg arising out of the course of her employment with the respondent;
(b)the respondent shall pay the applicant:
(i)lump sum compensation in respect of (a) permanent impairment, pursuant to section 24 of the SRC Act for 28 percent impairment of the whole person under Table 14.1 of the first edition to the Guide to the Assessment of the Degree of Permanent Impairment (the Guide) (made up of a 10 per cent impairment under Table 9.6 and 20 per cent under Table 9.5) and (b) non‑economic loss, pursuant to section 27 of the SRC Act in accordance with the applicant’s responses to the non-economic loss questionnaire dated 27 February 2006;
(ii)the costs of medical and related treatment expenses incurred in respect of the injury pursuant to section 16 of the SRC Act;
(iii)weekly payments of compensation in respect of incapacity for work for all periods when the applicant’s ability to earn was less than the normal weekly earnings pursuant to section 19 of the SRC Act; and
(c)the respondent shall pay the applicant’s costs and disbursements pursuant to section 67 of the SRC Act.
The Tribunal remits the matter to the respondent to calculate the amounts payable to the applicant in accordance with this decision.
I certify that the eighty four [84] preceding paragraphs are a true copy of the reasons for the decision of
Regina Perton, Member
Kerry Breen, Member
(sgd) Olympia Sarrinikolaou
Clerk
Dates of hearing: 24, 25 & 26 June 2009, 19 October 2009
Date of decision: 18 December 2009Counsel for applicant: Mr M Carey
Solicitor for applicant: Maurice Blackburn
Counsel for respondent: Mr R SeitSolicitor for respondent: Sparke Helmore
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