O'Brien and Australian Postal Corporation
[2002] AATA 800
•11 September 2002
DECISION AND REASONS FOR DECISION [2002] AATA 800
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/655
GENERAL ADMINISTRATIVE DIVISION )
Re ELEONOR O'BRIEN
Applicant
And AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Mr M J Sassella, Senior Member
Date11 September 2002
PlaceSydney
Decision The tribunal affirms the decision under review. The applicant is entitled to no costs associated with this application.
[SGD] M J SASSELLA
Senior Member
CATCHWORDS
WORKERS' COMPENSATION – permanent impairment – thoracolumbar spine – whether restrictions of movement – whether any impairment rating applicable under table 9.6 of Comcare guide – principles relating to medical examinations
Safety, Rehabilitation and Compensation Act 1988 ss 4(1)("impairment", "injury", "permanent"), 24.
Comcare v Amorebieta (1996) 66 FCR 83
REASONS FOR DECISION
11 September 2002 Mr M J Sassella, Senior Member
THE APPLICATION
This is an application to the Administrative Appeals Tribunal ("the tribunal") by Eleonor O'Brien ("the applicant"), date of birth 3 December 1973 (T3), for review of a decision dated 17 May 2001 (T20) in which a primary decision made by a delegate in the Australian Postal Corporation ("the respondent", "Australia Post") dated 4 April 2001 was affirmed. The decision was to reject a claim made on 10 November 2000 (T15) for a lump sum payment of compensation for a permanent impairment in the form of a musculoligamentous strain stemming from a back injury.
THE HEARINGThe tribunal convened a hearing in this matter in Sydney on 7 February 2002. Mr T M Rowles of counsel represented Ms O'Brien. Mr B Kelly of counsel represented Australia Post. Ms O'Brien gave evidence at the hearing. The tribunal received into evidence the following documents:
Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1 –T21) provided by the respondent.
Exhibit A1 – Report by Dr W H Wolfenden, neurologist, 5 September 2000.
Exhibit A2 – Applicant's statement of facts and contentions, 12 October 2001.
Exhibit A3 – Report by Dr Wolfenden, 23 October 2000.
Exhibit A4 – Chiropractic receipts.
Exhibit R1 – Respondent's statement of facts and contentions, 24 July 2001.
Exhibit R2 – Report by Dr M Downes, orthopaedic consultant, 26 June 2001.
Exhibit R3 – Receipts for sums paid by applicant for chiropractic treatment.
FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS
the compensation incidents
The applicant lodged compensation claims in respect of two incidents, one in 1996 (T5) and another in 1998 (T6). In oral evidence she described them as follows. On 11 August 1996 at 11.00 pm she was lifting a bag of mail weighing over 10 kilograms onto a piece of Australia Post equipment called a ULD. A ULD is square or rectangular, collapsible basket of some size. She carried out a twisting motion from left to right. She felt a "great pain" on her back. It was between the shoulder blades about an inch to the left of the centre. The pain was described as a burning pain. It was sensitive to touch. She worked on into the next day at 4.00 am. She then reported the incident to a Mr Truong. The pain had grown worse and did not improve. The next day was a rostered day off and she rested at home. The pain remained. She returned to work the next day and was given light duties.
She then had about two weeks off work via a medical certificate. Her compensation claim was admitted and she received incapacity payments to cover her time off. During the time off the pain persisted but at a reduced level. Upon her return to work she was given light sorting duties. The back was not fully recovered but was "alright" thanks to the light duties.
Ms O'Brien then returned to pre-injury duties. She had physiotherapy then chiropractic treatment four (and then two) times a week for four months. The back improved but did not fully recover. She suspended chiropractics when she moved house but resumed again in February 1998. Ms O'Brien's normal duties were a mixture of handling mailbags and sorting.
By 5 September 1998 Ms O'Brien's back was "alright" but still gave her some pain. At about 1.00 am she lifted a 10-12 kilogram bag of mail while loading a ULD. She performed the same twisting movement as previously. She felt a "very, very hot" pain. She found it difficult to breathe. She ended her shift at 4.00 am. For the final three hours she sat down. The pain continued when she went off duty. She rested the next day. She returned to work two days after the incident and did only sorting work. The back pain grew worse at work. She saw her general practitioner on 8 September 1998 and was prescribed tablets and physiotherapy. She had three days off work and was compensated for these.
Ms O'Brien continued with physiotherapy from October 1998 to February 1999. She was engaged in a rehabilitation plan for two months. In December 1998 she was made redundant (T14).
later developmentsMs O'Brien told the tribunal that the pain had persisted in the same location since December 1998. The intensity varies. It worsens if she twists and she can do nothing after twisting until she has rested. Hanging out clothes, vacuuming and carrying her child can all be problematic.
After leaving Australia Post Ms O'Brien gave birth to a child on 23 October 1999. She returned to chiropractic treatment in March 2000 and kept it up until the time of the hearing, albeit changing chiropractors as a result of house moves. She had stopped chiro and physiotherapy when pregnant. In cross-examination Mr Kelly put to Ms O'Brien that she had not submitted chiropractic receipts to Comcare since November 1996 and he suggested that that was when chiropractic treatment ceased. Ms O'Brien said that she had continued treatment but had desisted from claiming compensation for it. She was uncomfortable submitting receipts. The processing took a long time. She said that she had receipts for the later period. These became ex A4. There were receipts up to May 2001.
Mr Kelly also suggested that the resumption of chiropractic treatment after the birth of the baby was because she experienced pain carrying her baby (ex R3, chiropractor Florence's clinical notes). Ms O'Brien denied this. It appears that one of Ms O'Brien's chiropractors did not take compensation patients. When Ms O'Brien saw him she did not mention any connection with Australia Post and said instead that her pain had worsened since she had had her baby.
Recent jobs had been in a pillow factory, in an office and as a customer service officer for Westpac Bank. These jobs were sedentary or light duties jobs.
Back movements still produce pain. However, in cross-examination Ms O'Brien agreed that she can twist. She can twist once with no pain. She can twist two or three times but with pain. She can also twist acceptably if she does it slowly and with care.
permanent impairmentThe tribunal finds that Ms O'Brien sustained an "injury" as defined in s 4(1) of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") on 11 August 1996 and on 5 September 1998. This finding is uncontroversial as Comcare accepted liability on each occasion of injury to the back and has not decided that effects have ceased.
In order to attract a permanent impairment payment s 24 of the Act requires that the injury, here the back injury, must have resulted in the employee experiencing a permanent impairment. An impairment will, under s 4(1) of the Act, be permanent if it is "likely to continue indefinitely". An impairment is, in accordance with s 4(1), "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". It will be noticed that the focus in this definition is on impairment of the function of the bodily system.
Elsewhere in s 24 of the Act it is made clear that the degree of permanent impairment is to be assessed using the Comcare Guide to the Assessment of the Degree of Permanent Impairment ("the Comcare guide") (s 24(5)) and that, if the degree of permanent impairment is less than 10%, no compensation is payable.
The tribunal notes that the bodily system allegedly impaired is the applicant's "back" (T15/63). Dr W H Wolfenden, a neurologist, described the area of impairment as the "thoracolumbar spine" (T15/64). The tribunal therefore finds that the appropriate table from the Comcare guide is table 9.6.
Table 9.6 provides for assessment in percentage terms based on loss of range of movement in the thoracolumbar spine. It is necessary to see what the examining medical experts found in this respect. Dr M Gliksman, an occupational physician, saw Ms O'Brien on 24 September 1998 (T8). This was soon after the second incident. On physical examination the doctor found a full range of cervical, shoulder and thoracolumbar movements. There was some resistance to raised left shoulder movements with intensification of pain. There was no radiculopathy. He saw an excellent prognosis for full recovery with an appropriate treatment and rehabilitation plan.
Dr D Maxwell, an orthopaedic surgeon, saw Ms O'Brien on or around 15 March 2001 (T17) and he found a good range of movement in the thoracolumbar spine. She could flex and reach her toes. Extension was full although Ms O'Brien complained of some discomfort on the left side of the thoracic spine. She had a full range of thoracolumbar rotation. There was no evidence of neurological compromise. He assessed a zero rate of whole person impairment in accordance with table 9.6. A CT scan of 30 August 2000 showed scoliosis with a rotational deformity and scoliosis of the lumbar spine with a convex curve to the left at T3/4 and a curve to the right at T5/6.
Dr W H Wolfenden, a neurologist, saw Ms O'Brien on 5 September 2000 (ex A1) and reported that on examination Ms O'Brien could bend to touch her toes but extending the spine caused some discomfort, and there was some tenderness in the interscapular region on the left side. There was no significant neurological abnormality. He saw an uncertain prognosis. He assessed a 10% whole person impairment under the "Comcare guidelines", the table used not specified. A 10% rating under table 9.6 requires that Ms O'Brien has lost something under half the normal range of movement of her thoracolumbar spine.
On 26 June 2001 Ms O'Brien saw Dr M Downes, an orthopaedic consultant, who, having noted the scoliosis described above by Dr Maxwell, found (ex R2) that her thoracolumbar rotational movements were normal and that she had no limitation of movement of her neck. He assessed a zero rating under table 9.6. There were x-ray changes discernible but no restrictions of movement.
The tribunal observes that the evidence in paragraphs 17-20 is overwhelmingly to the effect that Ms O'Brien attracts a zero percentage rating under table 9.6 of the Comcare guide. There are x-ray (or CT scan) changes only and not even minor restrictions of movement. The applicant also told the tribunal that she could twist her spine provided she did so carefully and slowly. The only queries raised in relation to such an assessment were as follows.
First, Drs Maxwell and Wolfenden commented on some discomfort experienced by Ms O'Brien when she extended the spine. Second, it was argued that it was insufficient that doctors had asked Ms O'Brien to perform the relevant spinal movements only once. Had they asked her to repeat them two or three times they would have found her more restricted in her movements.
These arguments are largely resolved by reference to the decision of Jenkinson J of the Federal Court of Australia in Comcare v Amorebieta (1996) 66 FCR 83.
Jenkinson J said at page 99 that the voluntary abstention from physical activity to prevent the onset of pain, and the voluntary abstention from physical activity to alleviate pain, were not to be taken into account in determining the level of impairment under tables 9.5 and 9.6 except in circumstances where a medical practitioner accepts a patient ceasing a particular movement of the thoracolumbar spine at a particular point short of attainment of the limit of the normal ranges of movement in response to the onset of back pain, "other than minor discomfort" (page 97). In the tribunal's view the discomfort described by Drs Maxwell and Wolfenden fell within the range of "minor discomfort" if one is to judge from the context of their reports and from the doctors' willingness to permit the applicant to complete the action each had requested.
Jenkinson J sees the correct methodology for conducting a medical assessment associated with the Comcare guide as a matter of what doctors regard as appropriate examination procedure. In the present case the doctors apparently saw no requirement to ask Ms O'Brien to repeat the movements they had requested. In any event, in view of her statement that she could twist the spine with care and slowly, the tribunal considers that Drs Gliksman, Maxwell and Downes were accurate in relating their observations and opinions to table 9.6.
The tribunal therefore finds that Ms O'Brien had no more than x-ray changes in her thoracolumbar spine in accordance with table 9.6 of the Comcare guide. There were no relevant restrictions of movement of the spine. The applicant's permanent impairment rating is therefore zero.
CONCLUSIONThe tribunal has found that the applicant's thoracolumbar spinal impairment is manifested only in x-ray changes and results in no relevant restrictions of movement. There is therefore an impairment rating of zero under table 9.6 of the Comcare guide.
DECISIONThe tribunal affirms the decision under review. The applicant is entitled to no costs associated with this application.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member
Signed: .....................................................................................
AssociateDate of Hearing 7 February 2002.
Date of Decision 11 September 2002.
Counsel for the applicant Mr M T Rowles.
Solicitor for the applicant Jones Staff & Co.
Counsel for the respondent Mr B Kelly.
Solicitor for the respondent Sparke Helmore Solicitors.
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