Re Holmes and Comcare - [2001] AATA 290

DECISION AND REASONS FOR DECISION [2001] AATA 290

ADMINISTRATIVE APPEALS TRIBUNAL )

)No W1999/134 & ) W2000/238

GENERAL ADMINISTRATIVE DIVISION       )
           Re      ANDREW JOHN HOLMES
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Associate Professor S D Hotop, Deputy President Dr D Weerasooriya, Member

Date10 April 2001
PlacePerth

Decision The Tribunal makes the following decisions: (1) Application No W1999/134 The Tribunal sets aside the decision under review and, in substitution therefor, decides that the respondent is liable under s14(1) of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") to pay compensation to the applicant in respect of the injury suffered by him on 8 September 1992 to his neck and his right upper limb (including the right shoulder), but that the respondent is not liable under s14(1) of the Act to pay compensation to the applicant in respect of his left upper limb, back and legs. (2) Application No W2000/238 The Tribunal affirms the decision under review.

...........(sgd S D Hotop).........
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employees – applicant employed in Commonwealth public service from 1981 to 1999 – applicant claimed compensation in May 1998 in respect of condition of his neck, shoulders, back, arms and legs – applicant first became aware of above conditions in September 1992 – applicant failed to give written notice of injuries to respondent prior to lodging compensation claim – whether notice in writing of injuries deemed to have been given to the respondent – whether respondent would thereby be prejudiced – whether respondent liable to pay compensation to applicant in respect of abovementioned conditions – whether each condition contributed to in a material degree by the applicant's Commonwealth employment – applicant claimed permanent impairment compensation in respect of neck, right shoulder and right arm conditions – whether impairment permanent – whether degree of "whole person impairment" 10% or more under Tables 9.4 and 9.6 in approved Guide – whether applicant "has difficulty with digital dexterity"
Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 14(1), 24, 53
Guide to the Assessment of the Degree of Permanent Impairment Tables 9.4, 9.6
Comcare v Luck (1999) 29 AAR 403
Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534

REASONS FOR DECISION

10 April 2001 Associate Professor S D Hotop, Deputy President Dr D Weerasooriya, Member

This is an application by Andrew John Holmes ("the applicant") for review of the following reviewable decisions made by review officers of Comcare ("the respondent"):

a decision dated 19 February 1999 disallowing the applicant's claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 ("the Act") in respect of "soft tissue injury to neck, shoulders, back, arms and legs" (Application No W1999/134);
a decision dated 21 June 2000 disallowing the applicant's claim for permanent impairment compensation under the Act in respect of an injury to his neck, right shoulder, right arm and right forearm (Application No W2000/238).

At the hearing the applicant appeared in person without representation. The respondent was represented by Mr S Pilkinton of counsel. The Tribunal had before it the documents ("T documents" – numbered T1-T42) lodged by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and various documentary exhibits tendered by the applicant (numbered A1-A5) and by the respondent (numbered R1-R11). Oral evidence was given by the applicant, Dr J Hayes, Dr S Clarke, Mr N Batalin and Dr J Edelman.
The Applicant's Evidence
The applicant tendered a document entitled "Summary of Evidence" (Exhibit A1) and he confirmed that, to the best of his knowledge, its contents were true and correct. The contents of that document are as follows:
"Summary of Evidence
Claimant:                   Mr Andrew John Holmes
Date of Birth:             31 July 1956
Date of Injury:           8 September 1992
Condition:                  Soft tissue injury to neck, shoulders, back, arms and legs
History
My full name is Andrew John Holmes and I was born on 31 July 1956 in Australia, and graduated from school in 1973.
I commenced employment with the Commonwealth Public Service on 8 Jan 1981, and was made redundant as a result of major staff cutbacks in DEETYA/DETYA/DEWRSB on 31 Mar 1999. My Commonwealth employment consisted of employment with the Department of Defence from Jan 1981 to Aug 1992, then with DEET (which became DEETYA, then DEWRSB later) until Mar 1999.
I was involved in a number of accidents as follows:
1967 – Broke left elbow as a result of falling off a push bike on the way home from primary school.
Approx. Oct 1972 – Broke right elbow as a result of falling off a push bike on the way to high school.
Approx. March 1974 – Contusions to right knee as a result of motorcycle accident on way to university.
1978 – Whiplash injury as a result of a motorcycle accident in 1978.
1988 – Abrasions to left leg and hand as a result of a motorcycle accident in late 1988.
21 March 1997 – Burns & cuts to left leg, strain to arms, shoulders, back and legs from motorcycle accident on my way to work at DEETYA.
During my employment with the Commonwealth Public Service, I first started using computers in 1986. By around 1989, computers had become a major part of the work environment with all staff being required to do their own typing and most staff having their own PC. At that time, mouse use on the PCs was not significant as the PCs were using DOS based software.
On moving to DEET in August 1992, I started using PCs running Windows based software, which required significant use of the mouse. Computers became a more major part of the work process so that by around 1993, most of the work was computer based, with mouse use integral with operating software.
In 1992, DEET relocated its main office to the QV1 building and replaced all the existing desks with workstations. The main work surface was fixed and was 72 cm high. The desk had an adjustable section for the keyboard that could be lowered, but this did not allow for the mouse to be repositioned. The chairs were gas-lift adjustable, but could only adjust to give a maximum height of 50cm from the floor. Footstools were not routinely available.
In around 1994 or 95 I started using the mouse with my left hand due to pain and discomfort in my right hand and arm.
My duties were as a Clerical Officer. The work involved mostly computer-based tasks including input and manipulation of information on on-line recording systems, extensive report writing and editing, collection and analysis of data. The computerised systems and the software provided at DEET required considerable use of the mouse in interacting with the software.
Details of Claim
I submitted a claim for compensation in May 1998 for the above conditions. It is my contention that the conditions relate to working conditions while employed with the Commonwealth. I consider that although ergonomic furniture was provided by my employer, this furniture was selected on the basis of aesthetics rather than functionality.
As listed above, I have also been involved in a number of motor cycle accidents. Several of these occurred while travelling to or from my Commonwealth workplace.
I am no longer employed by the Commonwealth and I am now employed on a casual basis. I have claimed compensation to cover any time off work and medical expenses.
Details of Disability
I am unable to perform any repetitive task for more than a few minutes with my right (dominant) hand/arm.
For instance, even though I have been using the computer mouse with my left hand for around four years, I still have better control and precision with my right hand than with my left. Unfortunately, if I use the mouse with my right hand even for thirty minutes, pain in my arm and shoulder will flare and take some time to settle (often weeks).
Some household activities affect my arm, such as vacuuming and hanging washing. This is not an exclusive list and such things as cleaning my teeth, sweeping floors, doing dishes, painting, mowing the lawn etc are all things that I have to do carefully and in small doses to avoid excessive pain. Even sleeping on my right side will cause problems with aching arm and shoulder.
Similarly, a lot of work related activities cause me problems. Writing by hand is particularly troublesome, and I have to avoid periods of more than 5 to 10 minutes without substantial break. Keyboarding is more tolerable, but I still need to carefully manager the length of time spent and overall periods to avoid precipitating problems. As I have noted before using the mouse quickly stirs up pain. Filing papers causes pain as a result of the effort required in holding the papers and files as I work. Telephone work can be difficult unless I use a headset. Moving boxes, computers etc that I did a lot of (as a result of the constant re-locations and shuffling of staff) stirred up my arms, shoulders, neck and back.
Driving a car causes arm and shoulder pain and I often have to rest my right arm in these circumstances. Similarly, riding a motorbike is uncomfortable, and I have modified the bikes I use to get the best position and added throttle stops to allow me to 'spell' my right hand.
Using public transport is not much better unless I can arrange to carry nothing (which usually is not possible) as carrying a briefcase or using a shoulder bag causes pain in my arms, shoulders and neck.
I am definitely unable to do any manual labour type work, as although I am reasonably strong, any extended periods of repetitive activity will cause considerable pain which will usually take some weeks to settle.
To summarise my physical complaints:
My use of my dominant hand for repetitive work is reduced to short periods or not at all. I am unable to work normally in the clerical and administrative positions for which I am qualified and experienced.
I am severely limited in my ability to work for long periods and under pressure which is a normal requirement of most positions. (including all of the ones I occupied in the Public Service). I am not able to look at work in manual areas. I suffer some degree of pain most of the time, varying from a vague ache to severe constant pain depending on the levels and types of activity I have been doing. I have to consider avoiding aggravation to my arm/shoulder in almost all things I do."

In his oral evidence the applicant sought to explain his delay in submitting his claim for compensation to the respondent in May 1998. He said that, although he first became aware of pain and discomfort in his employment with the Commonwealth in the early 1990s, he decided not to make a claim for compensation because at that time he expected to work with the Commonwealth until he retired and he thought that the making of a compensation claim for occupational overuse syndrome or RSI would adversely affect his career in the public service. He added that he preferred to manage these problems himself with his own resources in the knowledge that his employment provided him with sick leave and superannuation entitlements which he could take if necessary. He said that what "forced [his] hand" in making a compensation claim was his perception that, with the large employment cutbacks that were occurring in the public service at the time, his job security was threatened and he no longer had a future in the public service, and his concern that he needed to establish that he had contracted work-related physical problems and that his employer, the Commonwealth, was responsible for them. As regards the date of commencement of the physical problems for which he claimed compensation in May 1998, he said that it was difficult to specify such a date because the condition of occupational overuse syndrome, or RSI, is a cumulative problem which one becomes aware of over a length of time. He added that the date of commencement which he stated in his compensation claim – namely, 8 September 1992 – was arrived at by reviewing his sick leave records and noting the earliest occasion on which he took leave for an illness of that kind. He referred to an extract from his sick leave records (T13, p24) which indicates that he was absent from work on 8 September 1992 by reason of a "sore shoulder and neck".
The applicant told the Tribunal that he ceased employment with the public service in March 1999. He said that although he took a "voluntary redundancy" he did so in circumstances in which he felt that he had few other options. He said that he had wished to remain in the public service and, following a departmental restructuring, he had applied for 10-12 other positions in the public service for which he was qualified but that, when all of those applications proved to be unsuccessful and it became clear to him that he had no future in the public service, he decided to try to make the best out of his situation by negotiating a redundancy package.
The applicant told the Tribunal that, since leaving the Commonwealth public service, he has been employed on a casual basis at a TAFE college lecturing in the computing area. He said that this work gives him a lot more flexibility than he had when he was working from 9.00 am to 5.00 pm in the public service under "substantial pressure" in order to meet deadlines in that he is not required to work at a computer for extended lengths of time but can, instead, vary his work position and activities whenever he begins to experience discomfort. He said, however, that his income had fallen to just over half of what he had been earning in the public service.
As regards his present symptoms the applicant told the Tribunal that, if he does not move while sitting or vary his work and avoid repetitive movements, he will experience pain in his shoulder, upper arm and forearm and sometimes in his wrist and hand – for example, he cannot use a computer mouse "for any length of time without suffering substantial consequences", nor can he write "more than about a third of a page of handwritten work". He said that if he sits still for too long he starts getting a sore lower back. He also said that he has to be "really careful" with his left knee and that he sometimes has problems with his right knee as a result of favouring it. Asked by the Tribunal on what basis he attributed his knee symptoms to his employment in the public service, the applicant said that he worked in a number of places where he had to go up and down stairs quite extensively, often carrying bulky items.
As regards transport, the applicant told the Tribunal that he is able to drive a car and ride a motorbike, but both cause him discomfort. He added, however, that sitting while driving a car "tends to stir up" his back and steering tends to give him some pain in the shoulder and sometimes in the neck, whereas he can manage better riding a motorbike. He added further that he preferred to ride his motorbike to and from work rather than take public transport because the latter would require him to walk some distance carrying a heavy bag and that would cause him "considerable pain".
In cross-examination the applicant confirmed his contention that his employment with the Commonwealth was either the cause, or involved an aggravation, of his problems with his neck and his right shoulder. He further contended that such employment was the cause of his problems in his left shoulder, right arm, right wrist and both knees. As regards his back, he said he considered that his Commonwealth employment had at least substantially aggravated any underlying problems. He confirmed, however, that he did not claim any problem in relation to his left arm.
Mr Pilkinton (for the respondent) questioned the applicant about his history of bicycle and motorcycle accidents during the period from 1967 to 1997 as set out in his written summary of evidence (Exhibit A1 – see paragraph 3 above). Mr Pilkinton tendered in evidence a Department of Defence "Report of an Injury" form completed by the applicant on 16 August 1985 regarding a motorcycle accident on 15 August 1985 (Exhibit R6). On examining that document the applicant said that he believed that the accident referred to was the same accident that he referred to in his summary of evidence as occurring in 1988. He acknowledged, therefore, that the reference in his summary of evidence to a motorcycle accident in the year 1988 was incorrect and that the year in which that accident occurred was in fact 1985. As regards the motorcycle accidents in 1985 and 1997, the applicant claimed that they both occurred in work-related journeys and were thus compensable but he acknowledged that he had not claimed compensation in relation to either of them. He also acknowledged that, in relation to the 1985 accident, he reported that he had suffered not only abrasions to his left leg but also, inter alia, abrasions to his right knee and a strain to his left knee, right wrist, arm and shoulder and to his lower back and neck – that is, the same areas of the body that are the subject of his present claim for compensation. He further acknowledged that he had been diagnosed as having cysts (ganglia) on the sheathing of his right wrist when he was at university in the mid 1970s and that he had experienced continuing problems in his right wrist thereafter.
The applicant was next referred to his compensation claim form dated 15 May 1998 (T8). In that form the applicant, in response to questions, stated that the relevant injury occurred or was noticed on 8 September 1992 and that he first had medical treatment for it on the same day. In his oral evidence, however, he explained that he had treated himself with medication on that day and he acknowledged that he did not receive medical treatment from a medical practitioner on that day. The applicant also stated that in the form that the doctor who first treated him for the relevant injury was Dr Harrison. The Tribunal notes that a "First Medical Certificate", which describes the applicant's complaint as "neck, back and shoulder discomfort related to poor working positions and excessive demands of work" and states a provisional diagnosis of "soft tissue injuries", was issued by Dr J Harrison on 5 March 1998 (T3). The applicant confirmed that Dr Harrison had been his regular treating general practitioner since about 1983.
Mr Pilkinton questioned the applicant about the delay in his submitting a compensation claim in May 1998 in relation to an injury which he said occurred in September 1992. The applicant acknowledged that he had been aware for many years prior to making the 1998 claim that he was entitled to claim compensation for work-related injuries. He reiterated, however, the explanation for his not making a claim until 1998 that he gave in his evidence-in-chief (see paragraph 4 above). That issue was also the subject of cross-examination as follows:
"You knew from the beginning, didn't you - and by 'the beginning' I mean when your symptoms - - -?---Started to become evident.
- - - first arose, that you could make a claim - - - ?---Yes.
- - - for compensation, and you chose to wait until May 1998 to do so?---Yes.
Let me suggest to you that the reason you submitted your claim at that time was because you knew by then that you wouldn't have a job?---Yes, that's what I've just said.
So you put your claim in as a form of insurance?---Yes, we've been over this discussion before.
And it was really only in March of 1998 that you went to your doctor and said, 'Look doctor, all these problems I've been having over the years that I've been telling you about, they are really workers compensation related'?---Yes.
And that came as a surprise to him, didn't it?---Quite possibly. At the time he didn't act surprised."

(Transcript, p60)

The applicant confirmed that, at the time when he ceased his employment with the Commonwealth public service in March 1999, he was working full-time hours for 5 days per week. Furthermore, he acknowledged that he remains presently fit to work full-time hours for 5 days per week provided that he has "flexible arrangements for working".
Finally, the applicant was questioned about his claim for permanent impairment. In response to questions the applicant confirmed that he can:

use his hands to work on a computer keyboard "for a limited time";
use all of the digits of his hands to type, but for "a far more limited time than a normal operator";
use both hands to operate the clutch and brakes of his motorbike which, he agreed, is a "big, heavy bike";
write with a pen without any problems apart from "control problems";
use a knife and fork to eat, including, for example, cutting a steak;
tie shoe laces without a problem;
hang washing on the clothesline using pegs, although his shoulders and arms become uncomfortable if he holds his arms above his head for any length of time.

Additional Lay Evidence

The applicant tendered in evidence a signed witness statement from each of Terry Mavrantonis and Susan Jenner, neither of whom, however, was called to give evidence. Mr Mavrantonis' statement, which is dated 7 January 2000, reads as follows (Exhibit A4):
"Mr Andrew Holmes commenced with the Internal Audit Unit (IAU) of the Department of Employment, Education and Training (DEET) later included Youth Affairs (DEETYA), on the 10th of August 1992.
Andrew and I directly reported to Mr Santo Casilli the Manager of IAU.
In late 1994, Mr Santo Casilli was transferred to the Finance and Accounts area in DEETYA. Andrew was approved HDA to act as Manager IAU and I was approved HDA to act in Andrew's position. We both acted in the positions until the Unit closed down in September 1996. Andrew continued to act in the position until he completed his Delegations database project whereas I transferred to the Human Resources Management area.
In 1993, Andrew complained of pain in the right arm and hand and neck due to the ergonomics of our work stations, chairs and PCs. I cannot recollect the exact date(s) but Andrew has (sic) severe pains in his right arm and had to switch to using his left arm to control the PC mouse. This was quite noticeable because he had great difficulty manoeuvring the cursor on the PC.
I remember, Andrew had attended a number of private physiotherapy sessions to relieve the pain in his right arm and neck.
Andrew was asked by our National Office to develop a computer database to incorporate DEETYA's Financial, Administrative and Program Delegations. This was a major project and required lots of planning and computer time to enter, test and confirm the data integrity. Andrew had worked on this system from 1994 to 1996 and whilst acting as Manager of IAU he had added pressure to complete the project within a tight timeframe.
The above information is based on my recollection of events and dates are from available records except Andrew's commencement date with the Department which was provided by Andrew himself."

Ms Jenner's statement, which is dated 11 February 2000, reads as follows (Exhibit A5):

"I was married to Andrew Holmes from 1984 to 1996.
As some time has passed I am unable to recall specific dates for events, but during the period 1983 to 1986 Andrew had occasional problems with his neck, which he said was the result of a prior motor cycle accident. He sometimes came home with a sore right shoulder after riding the motorbike home from work, but the soreness quickly dissipated, and did not seem to interfere with his daily life or capacity to perform normal tasks.
Once Andrew moved from 51 Supply Bn in Midland to the Department of Defence head office in Perth, there was a significant increase in the problem he had with his shoulder. His job was more stressful and involved a higher degree of work with computers. Over time the problem escalated, and Andrew came to complain of pain in the right elbow, forearm and hand in addition to the shoulder problem. His job involved him sitting at the computer for long periods of time. He had many reports to prepare and as EEO officer was responsible for collection, collation and presentation of large amounts of data – all of which was done on the computer. He also took on a role as Information Technology support officer (on an unofficial basis) which involved a great deal of work with computers.
Once Andrew transferred to the Department of Employment, Education and Training in 1992, his workload and stress levels increased. The work was almost entirely computer-based, with Andrew applying his computer expertise to automate many of the routine tasks. Even time sheets were filled out on an Excel spreadsheet. The symptoms became persistent, not disappearing overnight, or on weekends, and he experienced difficulty in performing many jobs around the home – such as using the lawn-mower, whipper-snipper and performing mechanical repairs on motor vehicles and motor cars. I frequently massaged Andrew's shoulders to try and relieve the pain. He used an elbow bandage, took Voltaren and used creams such as Dencorub to try and reduce the discomfort. Andrew complained in particular of difficulty in using a mouse at the computer, and of tiredness in the hands from keyboarding. He sought medical advice from the family doctor and was referred for physiotherapy, which didn't seem to have a particularly beneficial effect. As Andrew did not play any sport or engage in other physical activity I was (and am) of the opinion that his problems were due solely to performance of his duties at work."

The Medical Evidence
Dr J Edelman

A report of Dr J Edelman, Rheumatologist, dated 4 June 1998, addressed to Dr J Harrison states as follows (T11):
"Many thanks for referring this 41 year old gentleman along to see me. I note he has recently put in a Workers Compensation claim to Comcare. He works for the Department of Education and Training and Youth Affairs. His problem actually goes right back to September 1992. He of course largely does clerical work which means he uses the VDU. He has constant discomfort along his right trapezius muscle and radiating down his right upper limb. However with increasing workload and increasing pressure he has found increasing symptoms in this area. He has had 8 to 10 periods of time off work since 1992 which he has taken off on sick leave. He has managed his discomfort by changing positions at work using numerous breaks and anti inflammatories. Using the mouse is quite difficult for him.
He has gone to the Physiotherapist a few times which does help. Unfortunately he is to be made redundant and wishes treatment for his current condition.
He was tender across the right trapezius muscle but there was little else to find.
There seems no doubt that this is a work induced problem and he is getting muscular pain quite consistent with a regional pain syndrome. He is able to control this by watching what he does at work and frequently resting and exercising. Unfortunately there probably is little else he can do. I presume his workplace is quite OK but now that he is being made redundant there is little he can do from that avenue either.
At least if his claim gets accepted he can have physiotherapy treatment in the future."

On the initiative of the Tribunal, Dr Edelman was contacted by telephone during the hearing in order to ascertain the extent of the applicant's history of which he was aware when he prepared the abovementioned report. Dr Edelman confirmed that the only history provided to him was that summarised in the first paragraph of his report – namely, a history of the applicant's employment circumstances and physical symptoms since September 1992. He also confirmed that he had no record or knowledge of any motorbike accidents in which the applicant had been involved.

Dr J Harrison

A report of Dr J Harrison, dated 4 August 1998, addressed to the respondent states as follows (T20):
"…
I have gone back over Andrew's notes over the last 15 years. I do not have any record of a consultation of this gentleman on 8/09/92 or copy of a first medical certificate, from this date.
In February 1993 he complained of shoulder and back pain, these he attributed to doing work on renovating his house. I found no abnormality at that stage. On 2/09/93, he presented with headaches which were felt to be viral. He complained of discomfort over the neck muscles which he attributes to a long-standing past motor vehicle accident problem. Analgesics were prescribed. He was seen again on 11/08/94, with a complaint of neck strain which he felt was related to a previous motor bike injury in 1978. He was seen over the next three days for laser to the neck muscles with good relief.
In November 1994 (1/11/94), he stated after shifting a computer he injured his neck, this had occurred one week prior to this presentation. He manifested discomfort over the neck muscles analgesics were prescribed together with physiotherapy.
On 8/12/94, he presented with lower back pain, the precipitating factor was not identified. He showed tenderness over the lower back. X-rays were arranged. His next presentation for any musculoskeletal disorder was on 18/02/97 when he presented with an exacerbation of his longstanding neck pain (intermittent since the motor bike accident in 1978). Examination revealed mild tenderness with a normal range of movement.
Physiotherapy and anti inflammatory was prescribed. He was then seen in May 1997, when he presented with lower back pain. He said he had seen a physiotherapist and needed some analgesics. He manifested tenderness over the thoracic region of the back, voltaren was prescribed.
He then presented on 5/3/98, he then stated he felt he had a workers compensation claim in that he felt his neck, lower back and left thumb pain related to his work environment. Particularly the left thumb discomfort was related to excessive movement of a computer mouse. He felt this related to the injuries in 1992 – ie six years before and he felt specifically this related to poor work ergonomics. He stated that he reported this to his manager at the time but no further action was taken.
Examination revealed limited cervical spine movement with good movement of the back and thumbs. X-rays showed cervical spondylosis, scheuermanns disease of the back only and x-ray of the thumb was normal.
On the 24/4/98, the patient stated he had cervical spine problems since 19 (sic) but had been worse lately. He complained of back and left thumb discomfort. Neck movements were restricted but the thumb movements were normal. Analgesics were prescribed.
The patient saw me on 7/5/98, for a referral to a rheumatologist, a referral was arranged to Dr Jack Edelman. The patient requested I provide a workers compensation certificate on 5/3/98 and a first certificate was supplied and a further certificate was supplied on 7/5/98.
In answer to your specific enquiries.
A.        The relationship of his symptoms now to September 1992 is very difficult to state as the patient has had several injuries in the past prior to 1992, the time between the alleged injury and the first recorded information (March 1998) is considerable.
B.        Mr Holmes suffered neck pain following a motor bike injury in 1978, thus he did have pre existing symptoms …
C.       The pains he suffers from are related in part to his previous accident however they may also be amplified and aggravated by his work environment.
D.       The patient is still experiencing symptoms as stated above, these may well be a combination of prior injuries and more recent work stresses. These symptoms have existed in varying levels of activity since 1978 and as such are likely to continue to occur.
E.        Mr Holmes does have restriction in moving and bending. The contribution of pre existing and work related injury is really impossible to accurately assess at least at this stage.
...".

Dr R Whittaker

A lengthy report of Dr R Whittaker, Consultant Rheumatologist, dated 5 October 1998, prepared at the request of the respondent concludes as follows (T28):
"…
SUMMARY AND ASSESSMENT
Mr Holmes is now 42 years of age and he has a collection of aches and pains in many areas which appear to be aggravated by activities at work, at home, with prolonged sitting and without prolonged flexion of the cervical spine.
With regard to his neck and shoulder pain, it would appear that this may have indeed been present since the motorcycle accident and currently he has mild degenerative changes noted and I consider that a lot of his symptoms emanate from these underlying degenerative changes (which are not work related) plus a lesser component due to static loading of the neck whilst at work.
However, I consider that any work related aggravation is likely to be temporary and should settle when he is not doing primarily desk/computer based work duties.
With regard to his generalised aches and pains, he has generalised hyperalgesia in both the upper and lower body as well as a rather low pain threshold which I consider causes an undue level of symptoms at a very low level of activity. He is also generally unfit.
These symptoms are compatible with a diagnosis of Fibromyalgia Syndrome and, whilst these syndromes are aggravated at work, they are also aggravated with home duties. He merely complains of them more at work because he spends more time at work than he does doing his home duties. Also the stress of his work environment may serve to heighten these symptoms. I consider that the fibromyalgia syndrome is not related to his work.
With regard to his lower back pain, I consider that this is primarily due to the degenerative changes which have been noted on his recent X-rays as well as a poor sitting posture. They are aggravated (in the short term) with prolonged sitting at work, but his work has not caused any permanent aggravation or acceleration of the underlying condition and, when he leaves work his residual symptoms will reflect that of an underlying and pre-existing condition (i.e. the degenerative disease).
With regard to his knee pain, he describes bilateral anterior knee pain and attributes his left knee pain to climbing steps at work. I consider that this is most unlikely. He has some lateral left patellar lipping noted on recent X-ray and I consider that it is this, associated with slightly abnormal patello-femoral tracking that causes anterior knee pain on steps and on hills and this is clearly non work related.
In essence, I do not consider that there is any long term work disability in any area described by Mr Holmes although clearly work has served to aggravate symptoms in some areas from time to time.
I do not consider that Mr Holmes has any specific work restrictions due to his current condition. He is always likely to have some aches and pains in various areas, but the overall prognosis is good and I would not expect any acceleration of his symptoms in the future.
I do not consider that any further specific treatment is indicated.
My answers to your specific questions are as follows:-
a.What is the specific diagnosis of each of the sites where Mr Holmes is experiencing pain or symptoms? If any further diagnostic testing is necessary in order for you to determine the exact diagnosis of the condition, please arrange such test and Comcare will pay for the cost of the test/s.
i.Mild, degenerative, cervical spondylosis.
Ii.Fibromyalgia syndrome.
iii.Lumbar degeneration, i.e. lumbar spondylosis.
iv.Abnormal patello-femoral tracking.
b.What is the relationship between Mr Holmes' symptoms in each of the sites or areas of complaints/pain and:
1)the past motor vehicle accident and,
2)his employment with DEETYA?
(Please provide specific details in your response.)
i.Cervical spondylosis aggravated long-term by his motorcycle accident. To a lesser degree temporarily aggravated by his desk and computer based work duties.
ii.Fibromyalgia syndrome symptomatically aggravated by work, but not caused or contributed to by work.
iii.Lumbar spondylosis aggravated temporarily by prolonged sitting.
iv.Abnormal patello-femoral tracking, unrelated to work.
c.What are the exact cause, symptoms and effects of Mr Holmes' current condition/s?
The symptoms and effects of Mr Holmes' conditions have been outlined above. I have addressed the causation in answer to the previous two questions and in my report under the heading 'Summary and Assessment'.
d.Is Mr Holmes still suffering from any effect/s or disability as a result of the injury of 8 September 1992? If so, would such effect/s or disability be of a temporary or permanent nature? (Please explain further your response.)
I do not consider Mr Holmes is suffering from any disability as a result of the injury on 8 September 1992. The effects described by Mr Holmes as occurring in September 1992 were a temporary aggravation of his underlying cervical spondylosis.
I consider that the major part of his residual symptoms are due to the underlying cervical spondylosis.
e.Bearing in mind Mr Holmes' medical history, does his other medical condition have any significance to the development of his current condition? Please elaborate your response.
I have noted that Mr Holmes has a family history of arthritis and this is of relevance to his early development of degenerate joint disease symptoms. I have also noted that he has fibromyalgia-type symptoms involving the upper and lower body. Fibromyalgia is generally regarded as a condition with lowered pain thresholds accompanied by variable symptoms of anxiety or depression in association with disturbed sleep. In this context psychological factors play a role in contributing to the perpetuation of the condition. While I have not explored these in detail in Mr Holmes, a full assessment of his psychological state may reveal factors of significance.
f.What restriction/s, if any, should apply in Mr Holmes' capacity for work due to:
·his current condition?
·the injury of 8 September 1992, if any?
·his pre-existing or underlying condition, if any?
I do not consider that Mr Holmes has any specific work restrictions, now, or into the foreseeable future. This relates to both his current condition, the injury of 8 September 1992 and his underlying conditions.
g. Has Mr Holmes' injury of 8 September 1992 resolved?
I consider that Mr Holmes' injury of 8 September 1992 has resolved and that his continuing symptoms are due to the underlying degeneration.
h.Is surgery indicated as a direct consequence of the injury of 8 September 1992, and if so, what form of surgery and how would such a procedure resolve Mr Holmes' condition?
Surgery is not indicated.
i.What treatment would you further recommend in order to resolve Mr Holmes's injury of 8 September 1992 or for his current symptoms to be alleviated (if still ongoing)? (Please indicate the therapeutic benefit, frequency and duration he is reasonably expected to undergo such treatment.)
I consider that the appropriate treatment for Mr Holmes consists of maintenance of an active exercise program and taking simple analgesics (such as Paracetamol) as required. He may well benefit from the additional prescription of an anti-depressant under close medical monitoring by his usual medical attendant.
j.What is your prognosis for the condition/s?
As Mr Holmes' major problems are degenerative, I do not expect a rapid resolution, rather a slow indolent course with minor periods of aggravation and improvement over many years.
…".

The Tribunal notes that the motorcycle accident referred to in the above extract from Dr Whittaker's report is that which occurred in 1978.

Dr J Hayes

Dr J Hayes, Consultant Rheumatologist, was called as a witness by the applicant. He confirmed that he had prepared 2 medical reports, dated 9 December 1999 and 29 February 2000, in relation to the applicant. Those reports were tendered in evidence by the applicant. Dr Hayes' report of 9 December 1999 (Exhibit A2) states as follows:
"This 43 year old man developed the gradual onset of pain over the right neck-trapezial region with pain also in the extensor aspect of the right forearm. His symptoms developed in the early 1990's whilst working as an auditor in the Commonwealth Public Service. He claimed that he was doing a lot of computer work at the time. He was seen by Dr Jeremy Harrison on several occasions in 1993-1994 for a combination of both neck and lower back pain. He also complained of discomfort in the left thumb from excessive use of the computer mouse.
He nevertheless continued working in the above job despite his symptoms. He appeared to cope satisfactorily. In June 1998 he was seen by Dr Jack Edelman, consultant rheumatologist. He also began using the computer mouse in his left hand.
In March 1999 he was made redundant due to a large reduction in staff numbers in his department. Since then he has been working on a part time basis at TAFE teaching computer skills and also doing private computer consulting work. Mr Holmes says that he still experiences pain over the extensor aspect of the right forearm, radiating to the right neck-trapezial region. His ongoing symptoms are now slightly less severe as he can work at his own pace and also work from home. He volunteered that activities such as vacuuming, hanging out clothes, tended to aggravate the pain in the right upper limb.
His past history includes numerous motor cycle accidents. The first was in 1978 when he was thrown in the air and suffered a 'Whiplash' neck injury. He had physiotherapy for a year and was left with residual intermittent neck pain which took some time to resolve.
The second accident occurred in 1988 when he slid on an oil patch but did not injure his neck.
The third accident occurred in 1997 when he was struck in the rear by a car. This produced a temporary aggravation of pain in both the neck and back.
Examination of his cervical spine revealed a full range of lateral rotation to either side with normal rhythm. He did experience mild end range 'pulling' only.
Lateral flexion to either side was also of normal range with normal rhythm and minimal pain.
Forward flexion/extension were likewise full with mild discomfort on extension only.
Passively the patient had full and free neck movement in all directions without obvious pain.
There was mild tenderness over the right upper trapezial margin and tenderness over the proximal extensor aspect of the right forearm in the region of the radial tunnel. Sensation testing and power were both normal. Performance of the upper limb tension test on the right side produced significant right upper limb pain.
INVESTIGATIONS
X-rays of the cervical spine revealed minor osteophytic lipping at C3/4, C4/5 and C5/6 with minor narrowing of the C5/6 disc space.
OPINION
This man's right sided neck and upper limb pain is most likely due to Occupational Cervico-brachial Disorder, also known as Occupational Overuse Syndrome.
He does have minor degenerative changes on x-rays of the cervical spine, however, these changes are consistent with his age and are not associated with any restriction of movement in his cervical spine. His neck pain is thus not due to Cervical Spondylosis. Furthermore, his neck injury from motor cycle accidents in the past are also not the cause of his current symptoms.
My answers to your remaining questions are as follows:
2.The clinical findings and, in particular, the response on performing the upper limb tension test, are consistent with Mr Holmes' pain description.
3.I feel that he has an Overuse-type syndrome. The precise cause of this has not been determined, although I feel that his work posture is playing a role.
I do not feel that his current symptoms are related to any of his previous motor cycle accidents. I am unable to comment whether the ergonomic furniture or working conditions at his Commonwealth employer was playing a role.
4.In answer to this question, all I can say is that there have been many thousands of patients with neck and upper limb regional pain syndrome occurring in the 1970's-1980's and which have been regarded as work-related. The precise pathology of this is uncertain although Neuropathic Pain has been provided as an explanation.
5.Mr Holmes presented as a credible historian and witness.
6.He has been symptomatic with neck and right upper limb pain for nearly a decade and in view of this one would regard him as having a permanent impairment. I would regard him as having a 5% permanent impairment to the cervical spine with resultant referred pain into the right upper limb.
7.I would regard him as having a 5% impairment of the whole person as a result of his medical condition.
8.It is likely that his symptoms and impairment will slowly improve over a long period of time. He has already noticed minor improvement since leaving his former employer.
9.He does not require any specific treatment of any type.
10.In my opinion his ongoing symptoms do relate to his employment with the Commonwealth and are likely to continue indefinitely but one would expect that they should improve over the next 5-10 years. He had normal mobility in his cervical spine and in my opinion his symptoms are unrelated to his motor cycle accidents in the past and furthermore are not due to Cervical Spondylosis."

A supplementary report of Dr Hayes, dated 29 February 2000 (Exhibit A3), addressed to the applicant's representative states:

"Thank you for your correspondence regarding Mr Holmes and for the copy of the 'Comcare Guide to the Assessment of the Degree of Permanent Impairment'.
Under Table 9.4 in the assessment of upper limb function, I would regard Mr Holmes as having a 10% whole person impairment as a result of the pain referred into the right upper limb from the cervical spine."

In his oral evidence-in-chief Dr Hayes merely confirmed the opinion that he had expressed in his report of 9 December 1999, namely, that the applicant has an over-use type syndrome – also known as a "work-related fibromyalgia syndrome" – "where people develop pain in their neck, shoulders, upper limbs and extending down the spine". He added that he felt that the type of work the applicant had been doing had "played a contributing role" in his condition.
In cross-examination Dr Hayes elaborated on the opinion expressed in his report of 9 December 1999 that the applicant's current neck symptoms are not related to any neck injury suffered by him in previous motorcycle accidents. He said that on examination the applicant had a full range of movement in his neck with normal rhythm and with no pain and no specific tender spots. He added that if the applicant had chronic neck skeletal problems or soft tissue problems – chronic "whiplash" problems – that would produce definite clinical signs on examination, such as limitations on movement and pain on movement, which were not present in the applicant's case.
Dr Hayes was also questioned about his opinion that the applicant has a "10% whole person impairment as a result of the pain referred into the right upper limb from the cervical spine", as expressed in his supplementary report of 29 February 2000 (Exhibit A3). He confirmed that he arrived at that assessment by applying Table 9.4 in the Guide to the Assessment of the Degree of Permanent Impairment prepared by the respondent. In Table 9.4 the description of the level of impairment that is applicable to a 10% degree of "whole person impairment" is:
"Can use limb for self care AND grasping and holding BUT has difficulty with digital dexterity".

Asked what "difficulty with digital dexterity" the applicant has, Dr Hayes replied:

"Well, he claims that whenever he is using his right upper limb for repetitive type work he gets aching pain, particularly over the extensor aspect of his right forearm and discomfort in the thumb … that is what I took as difficulty with digital dexterity. That is how I interpreted it."

(Transcript, pp 83-84)

Finally, Dr Hayes adhered to the view expressed in his report on 9 December 1999 (Exhibit A2) that it is "likely that the applicant's symptoms and impairment will slowly improve over a prolonged period of time".
Dr S Clarke
Dr S Clarke, Occupational Physician, was called as a witness by the respondent. He confirmed that he had prepared 3 reports, dated 24 June 1999, 12 August 1999 and 30 June 2000, in relation to the applicant. Those reports were tendered in evidence by the respondent. In the report of 24 June 1999 (Exhibit R1) Dr Clarke set out in detail the applicant's history, past medical history, social history, hobbies, abilities/disabilities, occupational history and the results of x-ray investigations and continued:
"Examination
Mr Holmes was a pleasant man of stated age.
He presented in an entirely straightforward and reasonable fashion to me without any evidence of elaboration of his complaints.
He attended having arrived on his motorcycle and wore appropriate clothing for that mode of transportation.
His gait and neck posture in casual conversation was normal. He was able to sit in a normal chair in a comfortable manner throughout the duration of the interview.
Examining the neck in particular there was a full and normal range of movement into flexion and extension, left and right lateral rotation and left and right lateral flexion. There was no abnormal posture to the neck nor evidence of wasting. Brief cranial nerve examination was normal.
Examining the right upper limb, first there was absence of any wasting or abnormality in colour or temperature in general. There was no dysaesthesia or dystrophic change as one might expect in reflex sympathetic dystrophy. There was vague tenderness reported in the right trapezius muscle as the only specific finding in this region.
Visual examination reveals a more prominent and easily subluxable right acromioclavicular joint but palpation of this joint did not reproduce his symptoms so I view this finding as a legacy of his prior clavicular fracture and probably not relevant to his current presentation.
Examination of the shoulder itself demonstrated a range of movement within the normal range, but possibly loss of the last 10º of abduction with some discomfort reported in that position.
The lift-off sign for impingement was negative and power to initiate abduction was normal. The range of internal and external rotation was normal, similarly examination of flexion and extension was normal. There was no crepitus, tenderness or effusion about the shoulder joint generally.
More distal examination of the right arm was largely normal. Certainly power, tone, sensation and reflexes were normal and symmetrical although he did report discomfort in the region of the right elbow after examining power but this was not in the location that I would typically expect for either medial or lateral epicondylitis. The ulnar nerve function was normal distally and the ulnar nerve was stable in the groove behind the elbow. Similarly, Tinel's sign at the wrist was negative. Allen's test was negative and there was no indication to me of a thoracic outlet type syndrome.
I undertook to examine his grip strength by using a Jamar Dynamometer and this was within the normal range for a clerical worker with a maximum generated grip strength of 47 kgs in the right hand and 44 kgs in the left hand. With both hands there was the appropriate bell shaped curve demonstrated across the various handle settings consistent with full compliance with the testing modality.
Examining the left knee, this appeared normal to examination and was stable. There was no effusion present. Examination of the patellofemoral joint was normal and I could not detect any crepitus there. In particular, palpation of the patellofemoral joint and contracted quadriceps tendon was normal without discomfort and there was good tone within the quadriceps. There was however mild medial joint line tenderness which the patient reports is troublesome, particularly when squatting and sitting cross legged on the floor. He reports intermittent swelling in the region of the joint line medially associated with a sensation of locking and in my opinion this is most likely to represent medial meniscus pathology.
Examination of the knee for anteroposterior laxity as well as laxity in the lateral plane was normal, indicative of intact cruciates and collateral ligaments on both sides of the knee.
The lumbar spine was not specifically examined as this is not a current source of the patient's complaints. Nonetheless I note that he demonstrates a normal posture in the standing position, there is normal physiological curve in the lumbar spine and he can sit in a normal fashion in an office chair. There is radiological evidence of Scheuermann's dysplasia which would be consistent with his history of mechanical type back pain in association with certain activities and also with prolonged immobility whilst seated.
Opinion
I do note ongoing symptoms in this clerical worker. I note a range of opinions related to the diagnosis and causation of his complaints and the absence of any severe underlying pathology demonstrated either on physical examination or the limited investigations which have been performed.
I note that the patient is not claiming any great disability and in fact has found alternative employment since leaving the Commonwealth in similar largely computer based activities.
He reports ongoing symptoms which he has learned to control by self management such as changing the way he operates the keyboard, taking appropriate breaks, pacing himself. Certainly in the treatment sense there is little more I could recommend. I do note that he derives substantive if not shortlived relief from attendance at physiotherapy on an intermittent basis.
In answer to your specific questions:
1.The history, including past medical history, and employment history, is outlined above.
2.The diagnostic tests performed are few in number and have been outlined above. Treatments undertaken which have been beneficial include intermittent physiotherapy and anti-inflammatory medications.
3.The injuries sustained as a result of employment – in my opinion it is difficult to say with any degree of certainty so long after the events, which of his many accidents have contributed which symptoms in particular. With regard to the motorcycle accidents I do note that there has been prior involvement of his neck in such accidents and also, it seems historically and by examining the mechanism of injury, that the motorcycle accident of 1997 may well have been a significant factor in injuring the left knee.
The more speculative relationship involves contribution to his generalised right upper limb discomfort from prolonged use of the computer mouse in what is apparently a less than desirable ergonomic set-up. All I could say with any certainty is that I could not totally exclude some contribution to his current right arm symptoms from his work participation in those early years notwithstanding that the need for such treatment in the early days was apparently not documented.
As to his left knee injury, historically and clinically in my opinion there is some evidence to suggest medial meniscal injury but I do not think this has been caused by the seated work activities and the intermittent banging of his knee against the side of the desk. However, it is entirely possible that the left knee was injured in the motorcycle accident of 1998 and I am unsure whether this is covered under the Comcare system as a work caused journey claim.
In relation to the back and neck injury, there is in my opinion insufficient evidence of workplace involvement as the principal causation of these. Additionally I note that in the lumbar spine there is alternative explanation for his ongoing symptoms of discomfort with radiological evidence suggestive of Scheuermann's spinal dysplasia.
4.This is largely addressed above. I can concede that there has been some contribution to his right upper limb discomfort with the prolonged use of a keyboard mouse on the right side. Some practitioners attribute this symptom complex to occupational overuse syndrome or regional pain syndrome as Dr Edelman has suggested. The reality is that so long after the event and with so many other contributing factors, it is impossible to be entirely sure to what extent each particular injury has contributed to his current presentation.
5.As above, I can concede that there is a contribution to his right upper limb discomfort from the work activities outlined above.
6.Mr Holmes does not report any substantive disability in terms of his functioning in the workplace, socially or in terms of his recreational pursuits. He does however note the need to 'live with' his symptoms and to some extent has modified the activities he performs in order to minimise their effect.
7.I would consider the prognosis reasonable. With his current approach to self management of his symptoms and ability to work fulltime in the computer industry there is little in the way of functional disability. On occasions Mr Holmes has sought interventions from physiotherapists and found their involvement in his case beneficial on an intermittent basis. I feel it unlikely that his right arm situation will materially worsen given these factors and his sensible approach.
With regard to his left knee it would be my opinion that he will at some point require investigation with arthroscopy or possibly MRI scan to clarify if there is medial meniscal tear. If that is the case, following treatment his symptoms of painful locking of the left knee should subside.
With regard to the neck and back complaints, these would appear to be stable and I would not foresee any marked deterioration in those conditions in the foreseeable future.
8.Treatment – I cannot improve upon the treatment the patient is already undertaking of avoidance of aggravating factors, sensible rotation of work duties with rest breaks and so on, intermittent physiotherapy once a month or so and in addition the intermittent use of anti-inflammatory medications when symptoms demand.
9.Based on the history as given to me, and my examination, I would consider Mr Holmes fit for his pre-injury occupation as a fulltime clerical worker with management and teaching responsibilities.
10.You may be aware that there is a range of views regarding the mechanism of injury in so-called occupational overuse syndrome. It is fair to say that there is not yet a full agreement amongst the medical profession on the precise pathological process. Some believe it to be muscular, others tend towards a neurological basis for diffuse upper limb pain. Based on the history as given to me, Mr Holmes was without upper limb symptoms in the right arm in the past notwithstanding his multiple motorcycle accidents and gives a history of insidious onset of symptoms dating back some six years and in association with apparently less than optimal ergonomics.
11.Regarding the 'family history of arthritis', the conditions present in his mother and father are common problems in our society. Many people of their age have undergone knee replacements and high tibial osteotomy and to my knowledge there is no family relationship that is relevant in this case.
12.This relates to prior injuries, that is before the alleged date of injury at work. Mr Holmes is quite forthcoming about his motorcycle accidents and acknowledged knee and neck injury in particular. What has not been elucidated in his prior history is any prior involvement of his right arm in such accidents. Whereas his attribution of the symptoms in relation to his work duties is acknowledged it is certainly similar to the symptom complex observed in other patients in similar situations.
13.Mr Holmes' right arm condition would appear to be stable, that is not appear to be materially worsening in the recent past and to that extent, the aggravation would appear to be ongoing but not worsening.
14.Mr Holmes is clearly able to undertake fulltime employment in clerical positions so long as he maintains good ergonomic practices and avoids aggravating factors which he is currently doing. He does cite the need to avoid right handed mouse operation entirely and uses either his left hand or the keyboard instead.
15.I do not expect any change in either Mr Holmes' life expectancy or work expectancy as a result of his workplace right upper limb injuries.
16.I would not consider further medical specialists are required to be involved in Mr Holmes' case. Generally speaking such upper limb symptoms as Mr Holmes is reporting are managed either by rheumatologists, general practitioners or occupational physicians. He has seen representatives of all these specialties.
17.In general, I acknowledge that Mr Holmes is a man who is not attempting to maximise his disability. He continues working in a similar position. He seeks access to further medical treatment for his condition. It would be my opinion that given the passage of time which has elapsed since his alleged injury, that it (sic) impossible to be entirely sure of the relative contributions of the various factors, although I am of the view that there is at least some contribution to his current symptoms from prolonged workplace static postures with the right arm.
Mr Holmes reports to me that he is seeking intermittent access to physiotherapy on a relatively infrequent basis and this would seem to me to be not an unreasonable request under the circumstances. Possibly some appropriate settlement acknowledging the likelihood of contribution from the workplace activities would be the best way of managing his claim.
…".

Dr Clarke's report of 12 August 1999 (Exhibit R2) was prepared in response to a request by the respondent's solicitors to consider further medical documentation (including the abovementioned reports of Dr Edelman and Dr Harrison (Mundaring Medical Centre)) and to provide further information regarding the applicant's case. Dr Clarke's report refers to aspects of that documentation and then sets out his responses to specific questions as follows:
"1.Both the documents from the Mundaring Medical Centre and the admission notes from Royal Perth Hospital indicate that Mr Holmes had neck pain which dated back to 1978. There are several mentions of this by three different doctors.
There is no record of right arm pain but on the basis of the multiple motorbike accidents, the long history of neck pain and the demonstrated findings of spondylosis it is entirely possible that he has some radiculopathy manifest as pain down into the right arm, although neurological examination was normal. There is early disc space narrowing at C5/6 and some minor osteophytic lipping of the left C4/5 intervertebral foramen identified on the x-ray. Furthermore the x-rays do demonstrate findings consistent with Scheuermann's spinal dysplasia, a condition predisposing to intermittent and episodic back pain in association with contact sports, heavy lifting or often in association with prolonged immobility.
I could not on history or examination identify any long term pathology as a result of prolonged use of the computer mouse in his duties as a computer operator and furthermore I note that Mr Holmes indicated to me that one of his hobbies in fact was computer use at home.
The other factor of course is that with his degenerate spine and history of multiple motorcycle accidents Mr Holmes still continues to ride a motorbike using a full face helmet and whilst this mode of transport is not exactly contra indicated I would certainly not recommend or encourage it in patients of mine in a similar situation.
2.It may be that the upper limb symptoms of which Mr Holmes complains are related to muscular strain and fatigue associated with prolonged posture sitting at a computer desk and using a mouse.
3.I certainly would have expected muscular strain or similar injuries to have resolved with cessation of the aggravating activities and with the prolonged passage of time.
4.You ask me why Mr Holmes does not suffer symptoms in the left arm when he uses the mouse now. I do not know the answer to this question if indeed there is an answer.
5.I do not regard the family history as relevant in this case. To my knowledge Scheuermann's dysplasia is not familial in distribution and no arthritis has been diagnosed in Mr Holmes to my knowledge, and he has after all seen Dr Edelman, a rheumatologist who I am sure would have diagnosed inflammatory arthropathy if one in fact existed. I note the patient has had a prior fractured left elbow and fractured right collarbone with consequent damage to the right acromioclavicular joint. I was unable to assess the significance of these particular injuries to his current presentation and I suspect that they are not relevant.
6.You asked me to comment on Dr Edelman's statement that the patient has occupational overuse syndrome. My own view is that I could not sustain such a diagnosis in this case some five or seven years after the allegedly initiating event and particularly when there are several alternative explanations for the patient's symptoms."

Dr Clarke's report of 30 June 2000 (Exhibit R3) was prepared in response to a request by the respondent's solicitors to consider the abovementioned reports of Dr J Hayes and to provide further information regarding the applicant's case. The contents of that report are as follows:
"…
1.There is nothing in Dr Hayes' letter that alters my opinion. He is of the opinion that the patient's ongoing symptoms are related to occupational overuse syndrome. So long after the event and with so many complicating factors in this patient's presentation (by that I refer to the prior significant neck injuries, the prior fractured right clavicle and subluxed right acromioclavicular joint) it is very difficult to be sure to what extent his work duties have contributed to his current symptoms. He does not, in my opinion, demonstrate sufficient signs and symptoms to regard him as suffering from occupational overuse syndrome.
2.I have only seen this man on one occasion and that was one year ago. I understand from the history which I took from him that he takes Voltaren anti-inflammatory medication for pain in the back and the neck and also attends physiotherapy for manipulative type treatments (I presume this means to the neck). I presume by your question that you refer to what treatment he requires for the occupational component (if indeed there is any), and not to treatments related to general degenerative changes demonstrated in the cervical spine or to injuries sustained in his motor cycle accidents.
Even if I were to accept that all his current symptoms are related to work caused injury, so many years have elapsed since that time, that I would not consider any ongoing physical treatment such as physiotherapy would be required for such an injury as this eight years after the event.
3.I was not aware that this patient had diabetes. I suspect this is not relevant.
4.I can acknowledge that the patient has ongoing symptoms related to his neck and right arm. I do not anticipate that his situation will improve given that eight years have elapsed. Therefore, under the Comcare classification which you have sent me, he would be considered as having a permanent disability. This would be mild.
5.I see that Dr Hayes has consulted Table 9.4 of the Comcare Tables of Disability which relates to upper limb function. There is a limited range of options to choose from in this classification system but I cannot sustain that in this patient there is a Ten Percent (10%) permanent disability as Dr Hayes has suggested. The wording of that disability is 'Can use limb for self care and grasping and holding but has difficulty with digital dexterity'.
On the occasion that I saw Mr Holmes he was not complaining of nor demonstrating difficulty with digital dexterity, although no specific tests were performed for this. I note that he continues to use a mouse and a keyboard with his computers and to ride a motorcycle, and that he did not describe any specific disability other than inability to use a computer mouse in his right hand, but I understand that this was because of symptoms of pain and not because of difficulty with digital dexterity. I did undertake to examine his grip strength using a Jamar Dynamometer and this was normal in the right hand.
Therefore, in answer to your question, and given the very limited range of choices that one is given under the Comcare system, he would have no upper limb whole person disability.
On the other hand, I consulted Table 9.6 which refers to the cervical spine whole person impairment and I would consider that in this case, a Five Percent (5%) whole person impairment would apply. This is described as minor restrictions of movement, and that would appropriately describe this person's presentation.
6.You asked me to apportion the disability between work and non work related factors. So long after the event and with so many complicating factors, this is entirely speculative, however I would regard his motorcycle accidents as significant contributions to his overall presentation given the degenerative changes within his cervical spine. Based on the history and also the additional information you have provided to me regarding his Royal Perth Hospital notes. However, I feel I am in no position to comment as to the relative contribution in percentage terms other than to note the contribution from his motorcycle accident and the natural degenerative processes in the cervical spine.
…".

In his oral evidence Dr Clarke said that he did not think that "occupational overuse syndrome" was an appropriate diagnosis of the applicant's condition. He added that he regarded such a diagnosis as "somewhat subjective" and "not terribly specific" and that a more appropriate description of the applicant's condition was that he had a constellation of symptoms of a short-term nature that should be relieved when he is moved from the particular work environment to which those symptoms are related. He also told the Tribunal that a possible diagnosis of the applicant's condition is right-sided radiculopathy (that is, irritation of the nerve roots), although he acknowledged that, on examination of the applicant, there were no diagnostic neurological findings.
As regards the issue of the relationship (if any) between the applicant's present symptoms in his right upper limb and his former employment with the Commonwealth, Dr Clarke told the Tribunal that a prolonged static posture would cause discomfort, especially if the ergonomics were not optimal but that he would expect the symptoms to diminish with the passage of time following removal from that work environment. Upon hearing the applicant's evidence that his symptoms had improved since he ceased employment with the Commonwealth in March 1999, Dr Clarke said that that was consistent with the applicant's present symptoms being related to his former employment. Dr Clarke added that he regarded the applicant's neck symptoms as related to his right upper limb symptoms.
As regards the issue of the relationship (if any) between the applicant's present symptoms in his back and his former employment with the Commonwealth, Dr Clarke expressed the opinion that there was no such causative relationship, especially having regard to the fact that an x-ray of the applicant's lumbar spine revealed the presence of "Scheuermann's disease".
As regards the issue of permanent impairment, Dr Clarke confirmed the opinion expressed in his report of 30 June 2000 (Exhibit R3) that the applicant does not have a 10% impairment under Table 9.4 in the Guide to the Assessment of the Degree of Permanent Impairment. He added that the applicant does not fulfil any of the criteria set out in that Table. He said that the applicant did not report to him any digital dexterity problems and that he therefore did not perform any relevant tests on the applicant. Dr Clarke was referred to the applicant's evidence that he is able to do such things as type with all his fingers, write with a pen, use a knife and fork to eat, tie shoelaces and the like, but that he is unable to continue to perform repetitive actions of that nature for as long a period as a normal person would be able to perform them. Dr Clarke said that he thought the phrase "has difficulty with digital dexterity" was appropriate to describe a person who was unable to perform "fine manipulative tasks", such as doing up buttons or lighting a cigarette, by reason of a physical condition such as ulnar nerve palsy or radial nerve palsy. He added that doctors would instead describe the applicant's upper limb functional impairment as "easy fatiguability".
Mr N Batalin
Mr Batalin told the Tribunal that he has been practising as an orthopaedic surgeon for 25 years. He confirmed that he had examined the applicant on 7 October 1999 at the request of the respondent's solicitors and had prepared 2 reports in relation to the applicant dated 7 October 1999 (Exhibit R4) and 16 June 2000 (Exhibit R5). In his comprehensive report dated 7 October 1999, Mr Batalin first recorded the applicant's history of multiple motorbike accidents between 1974 and 1997 and continued:
"Current symptoms:
1        The patient stated that he has periodic aching and discomfort at the back of the neck. This is variable. When I asked to clarify the symptom he told me that he has 'difficulty in getting comfortable in bed'. This may occur for a period of time and then may disappear. He also mentioned a feeling 'as though I want to push my head backwards'.
2        He mentioned that he gets periodic aching in one or the other of his shoulders and arms and elbows. I noted that he was not sure of the frequency but eventually told me it may be present '50% of the time' and mentioned it may occur two or three times a week. When asked about duration of symptoms he told me initially that it lasts for months but when I tried to clarify this he then indicated that it may last for a few hours.
3        For the past six or seven years he has been experiencing periodic discomfort in the low back region. Again, he seemed unsure of the frequency but eventually told me that this may occur 'a quarter of the time'. It may last for half to one hour at the time. It tends to be aggravated by sitting for more than a few hours. It is eased by gentle exercises.
3 (sic) He told me that he has periodic hurting feeling affecting the front of the right knee. As far as I could ascertain, this is infrequent and may occur only 10% of the time. It appears that the symptoms followed his original motor bike accident."

The report then briefly refers to the applicant's past health and social history, sets out the findings on examination and the results of x-ray investigations and continues:

"Summary
Andrew Holmes at present has definite evidence of what I consider to be long standing, developmental and secondary degenerative changes in the spine. This mainly consists of Scheuermann's disease affecting the lumbar spine with some secondary spondylotic changes. I see many individuals with such pathology who present with periodic low back symptoms. I do not believe that underlying pathology is caused by use of standard furniture nor do I believe that it significantly contributes to progression of degenerative changes. On the contrary, I do believe that developmental vertebral end plate irregularities, in my experience, do contribute to progression of degenerative changes. Furthermore, many middle-aged individuals will have associated degenerative disc disease and this is probably found in around 70 to 75% of the population.
The patient also has minimal degenerative changes in his neck but, once again, these are not consistent with his age. If one was looking for a cause I would be far more inclined to attribute minimal degenerative changes to significant motor bike accidents in the past, particularly in view of lasting neck symptoms related to some of these accidents.
He also has minimal degenerative changes in the patellofemoral joints of his knees. Once again, I note the history of knee injury in the past in relation to a motor bike accident. It is more likely than not that such an injury could produce some patellofemoral degenerative changes.
The patient also has evidence of old injury to his right clavicle and acromioclavicular joint. Once again, this is the result of an injury in childhood. Furthermore, the patient has slight restriction of pronation and supination in his left elbow and yet again this is the result of a push-bike accident in childhood, resulting in a fracture of the left elbow requiring surgical treatment.
Unfortunately, I had no access to x-rays of his right clavicle, right shoulder or left elbow.
I note the accompanying medical documentation from Royal Perth Hospital, pertaining to admission from 3.9.93 with a diagnosis of headaches, neck pain and stiffness and provisional diagnosis of a probable viral illness. There was also Royal Perth Hospital casualty documentation in relation to a motor bike accident on 20.3.74 with documentation of a 3 cm laceration of the right knee and Xray evidence of right knee effusion but no evidence of fracture.
In summary, on the evidence presented to me, I could not identify any significant work-related problems and all the patient's symptoms could be explained on the basis of the history documented above.
In answer to the question posed in your letter of 25.5.99:
…
3        I did not feel that I could identify any work related injuries in this patient's spine. However, I documented multiple previous injuries in relation to accidents in childhood, push-bike accidents and multiple motor bike accidents.
4        At the time of my assessment I could not identify major disability, having noted minor cosmetic deformity of the right acromioclavicular joint; minor restriction of pronation and supination in the left elbow and minimal degenerative changes in the patellofemoral joints of both knees as well as what I consider to be pre-existing, developmental and minor degenerative changes in the lumbar spine. I saw no contra-indication for the patient pursuing a full time occupation as a clerk or as a computer consultant.
5        As already stated, the patient's current symptoms and clinical findings are consistent with multiple previous injuries but I could not identify significant work-related problem.
…
7        The prognosis in a patient with such presentation and taking the overall clinical and radiological appearance is favourable.
…
10       The patient's current symptoms could be explained by problems created as a result of multiple accidents in the past and these have all been documented in page 1 and page 2 of the report.
11       I could not identify any relevant family history.
12       I believe that it is possible and indeed probable that the patient's level of symptoms and disability would have been the same even if it was not in relation to the incident which you stated occurred on 8.9.92. The patient did not provide me with any history to suggest significant injury at that stage.
13       I do not believe that there are significant or identifiable factors that are likely to contribute to the patient's symptoms and signs. The corollary to that is that most of his clinical abnormalities could be clearly explained on the basis of previous accidents.
14       As already stated, I saw no clinical contra-indication for the patient working as a clerk or as a computer consultant.
15       At the time of my assessment I saw no significant signs which would be expected to shorten the patient's work expectancy or life expectancy in relation to the incident in September 1992.
…".

In his oral evidence Mr Batalin confirmed that he "couldn't find objective evidence" that the applicant's employment with the Commonwealth had either caused, or contributed to the development and continuation of, his symptoms in his neck, right arm and wrist.
The Legislation
The relevant provisions of the Act are as follows:

"14(1) 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.
…
24(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee's condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.

(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(7) Subject to section 25, where Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section.

…
53(1) This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:
(a) as soon as practicable after the employee becomes aware of the injury; or

…
(3) Where:
(a) a notice purporting to be a notice referred to in this section has been given to the relevant authority;
(b) the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and
(c) the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause;

the notice shall be taken to have been given under this section."

The following relevant definitions appear in s4(1) of the Act:

"'ailment' means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);
'approved Guide' means:
(a) the document, prepared by Comcare in accordance with section 28 under the title "Guide to the Assessment of the Degree of Permanent Impairment", that has been approved by the Minister and is for the time being in force; and

…
'disease' means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation;
…
'impairment' means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function;
'injury' means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;

…
'permanent' means likely to continue indefinitely;
…".

The Issues

The general issues for the Tribunal's determination, as raised and discussed in the parties' submissions, are as follows:

whether notice in writing of a relevant injury or injuries to the applicant was given to the respondent under s53 of the Act;
whether the respondent is liable under s14(1) of the Act to pay compensation to the applicant in relation to his neck, shoulders, arms, back and/or legs;
whether the respondent is liable under s24(1) of the Act to pay permanent impairment compensation to the applicant in relation to his neck, right shoulder, right arm and/or right forearm.

Findings on material questions of fact and consideration of issues
Was notice given under s53 of the Act?

There is no evidence before the Tribunal to the effect that the applicant gave to the respondent notice in writing of the relevant "occupational overuse", or cervico-brachial, condition allegedly affecting his neck and right upper limb, or of any other alleged injury the subject of the present application for review, prior to his lodging the relevant compensation claim form (dated 15 May 1998) with his employer on 18 May 1998, pursuant to s54 of the Act. That compensation claim form, however, can itself constitute "notice in writing" of the relevant injury, within the meaning of s53 of the Act: Comcare v Luck (1999) 29 AAR 403. Accordingly, the Tribunal finds that the applicant gave notice in writing of the relevant injury to his employer on 18 May 1998.
The question then arises whether the applicant gave such written notice "as soon as practicable" after he became aware of that injury, as required by s53(1)(a) of the Act. According to the applicant's own evidence, and as stated in his compensation claim form, he became aware of the injury on 8 September 1992. The applicant sought to explain in his oral evidence the reasons for his not making a claim for compensation until May 1998 (see paragraphs 4 and 12 above) but, in the Tribunal's opinion, there is nothing in those reasons to suggest that he was incapable of, or prevented in a practical sense from, notifying his employer in writing of his injury when he became aware of it on 8 September 1992 or within a reasonable time thereafter. Accordingly, the Tribunal finds that written notice of the relevant injury, which was first given to the applicant's employer on 18 May 1998, was not given "as soon as practicable" after the applicant became aware of that injury on 8 September 1992. The requirement imposed by s53(1)(a) of the Act was, therefore, not complied with by the applicant.
Subsection (3) of s53 of the Act, however, provides that, where the conditions specified in paras (a), (b) and (c) of that subsection are satisfied, "the notice shall be taken to have been given under this section". In the present case, the conditions specified in para (a) (see Comcare v Luck (above)) and para (b) (see paragraph 36 above) are satisfied. As regards para (c), the issues which arise are whether the respondent would be "prejudiced if the notice were treated as sufficient notice" and, if so, whether the failure to comply with s53(1)(a) "resulted … from ignorance, from a mistake or from any other reasonable cause".
In relation to the issue of prejudice to the respondent, the Tribunal notes the purpose of the notice requirement in s53(1) of the Act as stated in Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534 at 535:
"Section 53 is clearly intended to protect the Commonwealth and its instrumentalities from being placed in a situation where they are unable to disprove an employee's assertion of an injury alleged to have occurred on some specific occasion in the course of the employee's work or of a disease contracted because of some brief and transient situation. Some such provision is clearly needed to prevent abuse of the Act."

In the present case no specific evidence or material indicating that the respondent had in fact been prejudiced by the applicant's failure to comply with s53(1)(a) of the Act was presented to the Tribunal. Instead, it was in effect submitted by Mr Pilkinton (for the respondent) that the Tribunal should infer that the respondent had been prejudiced by reason merely of the fact that the applicant "chose" not to give notice of the relevant injury, which he later claimed he became aware of in September 1992, until May 1998. In the circumstances of the present case the Tribunal is not prepared to draw that inference. The injury or disease in respect of which the applicant has claimed compensation is, of its nature, not one which allegedly "occurred on some specific occasion", or which was allegedly "contracted because of some brief and transient situation", in the course of his employment (Tierney, above). Rather, that injury or disease (involving occupational overuse syndrome or cervico-brachial disorder), according to the applicant's evidence, has gradually developed over a long period of time since its symptoms first manifested themselves in September 1992 and those symptoms continue to persist at the present time. The Tribunal notes that, prior to the applicant's ceasing his employment with the Commonwealth in March 1999 and during the period in which his claimed injury or disease was continuing to manifest symptoms, the respondent was able to obtain a medical report from the applicant's treating general practitioner, Dr J Harrison, dated 4 August 1998 (T20 – see paragraph 17 above), which enclosed a copy of Dr J Edelman's report of 4 June 1998 (T11 – see paragraph 16 above) together with copies of relevant medical certificates and details of consultations with the applicant, and a comprehensive medical report from Dr R Whittaker, dated 5 October 1998 (T28 – see paragraph 18 above). Indeed, it was on the basis of those medical reports that the respondent disallowed the applicant's claim for compensation. Having regard to the abovementioned circumstances, the Tribunal finds that the respondent would not, by reason of the applicant's failure to comply with s53(1)(a) of the Act, be prejudiced if the lodgment of the applicant's compensation claim form on 18 May 1998 were treated as a sufficient notice for the purposes of s53 of the Act.

Given the Tribunal's abovementioned finding of lack of prejudice to the respondent, it is not necessary for the Tribunal to make a finding on any of the alternative matters referred to in para (c) of s53(3) of the Act.
The Tribunal finds, therefore, that, by reason of s53(3) of the Act, notice of the relevant injury is taken to have been given under s53 in this case and that, accordingly, the Act is not precluded from applying in relation to that injury.
Is the respondent liable under s14(1) of the Act to pay compensation to the applicant in relation to his neck, shoulders, arms, back and/or legs?

The Tribunal will first consider the applicant's neck and right upper limb (including right shoulder) collectively.
On the basis of the applicant's evidence and the medical evidence before it, the Tribunal finds that the applicant has at all material times suffered, and continues to suffer, an "ailment" (as defined in s4(1) of the Act) in relation to his neck and right upper limb.
As regards the issue of the relationship (if any) between the abovementioned ailment suffered by the applicant and his employment by the Commonwealth, the medical evidence before the Tribunal is not consistent. Drs Edelman, Hayes and Clarke expressed the opinion that the applicant's employment with the Commonwealth has played a role in, or made some contribution to, his ongoing neck and right upper limb symptoms. Dr Harrison was prepared to acknowledge that the applicant's pain symptoms may be "amplified and aggravated by his work environment". Dr Whittaker, on the other hand, expressed the opinion that the applicant's continuing symptoms are due to "underlying degeneration" but, elsewhere in his report, Dr Whittaker stated that "a lot" of the applicant's symptoms emanate from "underlying degenerative changes (which are not work related)" but added that a "lesser component" was "due to static loading of the neck whilst at work". Having regard to the whole of Dr Whittaker's report, the Tribunal regards his opinion on the abovementioned issue as somewhat equivocal. Mr Batalin's evidence was that he "couldn't find objective evidence" that the applicant's employment with the Commonwealth had either caused, or contributed to the development and continuation of, the applicant's symptoms in his neck and right upper limb. Mr Batalin, however, did not unequivocally express the opinion that the applicant's employment with the Commonwealth played no role in, or made no contribution to, those ongoing symptoms.
Having regard to the whole of the medical evidence before it, the Tribunal finds, in accordance with the unequivocal opinions of Drs Edelman, Hayes and Clarke, that the applicant's employment by the Commonwealth has contributed in a material degree to the ailment suffered by him in relation to his neck and right upper limb. Accordingly, the Tribunal finds that that ailment is a "disease" (as defined in s4(1) of the Act) and also, therefore, an "injury" (as defined in s4(1) of the Act), within the meaning of s14(1) of the Act. The Tribunal also finds, on the basis of the abovementioned medical evidence and the applicant's evidence, that that "injury" has resulted in an "impairment" (as defined in s4(1) of the Act) of the applicant's neck and right upper limb.
Accordingly, the Tribunal finds that the respondent is liable under s14(1) of the Act to pay compensation is accordance with the Act to the applicant in respect of the injury suffered by him to his neck and right upper limb.
As regards the applicant's left upper limb (including left shoulder), back and legs, the Tribunal finds, on the basis of the applicant's evidence and the medical evidence before it, that the applicant has at all material times suffered, and continues to suffer, an "ailment" (as defined in s4(1) of the Act) in relation to each of those parts of his body. In the absence of supporting medical evidence, however, the Tribunal is not prepared to find that any of those ailments was contributed to by, or is in any way related to, the applicant's employment by the Commonwealth. Accordingly, the Tribunal finds that none of the abovementioned ailments in relation to the applicant's left upper limb, back and legs is an "injury" (as defined in s4(1) of the Act), within the meaning of s14(1) of the Act.
The Tribunal finds, therefore, that the respondent is not liable under s 14(1) of the Act to pay compensation to the applicant in respect of his left upper limb, back and legs.
Is the respondent liable under s24(1) of the Act to pay permanent impairment compensation to the applicant in relation to his neck and right upper limb?

For the reasons expressed in paragraph 44 above, the Tribunal finds that the ailment suffered by the applicant in relation to his neck and right upper limb is an "injury" which has resulted in "impairment", within the meaning of s24(1) of the Act. The issues which now arise are whether that impairment is "permanent" within the meaning of s24 of the Act and, if so, whether an amount of compensation is payable to the applicant, pursuant to that section, in respect of that injury.
The word "permanent" is defined in s4(1) of the Act to mean "likely to continue indefinitely". Section 24(2) of the Act requires that, for the purpose of determining whether an impairment is permanent, regard be had to specified criteria, including "the duration of the impairment" and "the likelihood of improvement in the employee's condition".
As regards the issue whether the impairment in the applicant's neck and right upper limb is "permanent" within the meaning of s24 of the Act, the medical evidence is not entirely consistent. Dr Harrison stated, in his report of 4 August 1998 (T20), that the applicant's symptoms are "likely to continue to occur" and, in his report, dated 14 April 2000, which accompanied the applicant's claim for permanent impairment compensation (Exhibit R7), Dr Harrison expressed the opinion that the applicant's impairment had "probably" stabilised at the current level indefinitely and that the level of symptoms seems to have "plateaued". Likewise, Dr Clarke, in his report of 24 June 1999 (Exhibit R1), stated that the applicant's neck and right arm condition "would appear to be stable" and not deteriorating. Dr Hayes, on the other hand, expressed the opinion, in his report of 9 December 1999 (Exhibit A2) and in his oral evidence, that it is "likely that the applicant's symptoms and impairment will slowly improve over a prolonged period of time". That opinion has been borne out by the applicant's oral evidence that his symptoms have improved since he ceased employment with the Commonwealth in March 1999.
Given the abovementioned inconsistency in the medical evidence in relation to the prognosis regarding the applicant's neck and right upper limb symptoms, the Tribunal considers it appropriate to attach great weight to the applicant's own evidence of his subjective experience regarding those symptoms. The applicant's evidence, in essence, was that he began to experience those symptoms in September 1992 and he continued to experience them during the remainder of his employment with the Commonwealth, but that those symptoms have improved since he ceased that employment in March 1999, although he continues to experience them, especially when performing repetitive tasks with his right upper limb for any length of time. Although the applicant's evidence indicates, on the one hand, that the impairment in his neck and right upper limb is of long duration (since September 1992) and continues to manifest pain symptoms in certain circumstances, it also indicates that that impairment and those symptoms have improved since March 1999 and are continuing to improve gradually. That evidence inclines the Tribunal to find that the applicant's impairment in his neck and right upper limb has not yet stabilised and that, at the present time, it is not appropriate to regard it as "permanent" for the purposes of s24 of the Act.
The Tribunal acknowledges that it has some reservations about making the abovementioned finding and, accordingly, it will also consider the matter of the degree of the applicant's impairment for the purpose of determining whether, on the basis that that impairment is permanent, an amount of compensation would be payable to the applicant pursuant to s24 of the Act.
Sections 24(5) and 28(4) of the Act require that the degree of permanent impairment of an employee resulting from an injury be determined under the provisions of the "approved Guide" – namely, the Guide to the Assessment of the Degree of Permanent Impairment prepared by the respondent pursuant to s28(1) of the Act. It was common ground that the relevant impairment tables in the approved Guide in this case are Table 9.4 and Table 9.6.
Table 9.4, which relates to upper limb function, contains 4 separate descriptions of impairment level and ascribes a different "whole person impairment" percentage to each description. The applicant submitted, relying on the opinions of Dr Hayes and Dr Harrison, that the degree of impairment of his right upper limb fell within the first description of impairment level (to which a "whole person impairment" of 10% is ascribed). That description is as follows:
"Can use limb for self care AND grasping and holding BUT has difficulty with digital dexterity".

Dr Hayes, in his report of 29 February 2000 (Exhibit A3), stated, without elaboration, that, under Table 9.4, he would regard the applicant as having "a 10% whole person impairment as a result of the pain referred into the right upper limb from the cervical spine". He elaborated on that opinion in his oral evidence (see paragraph 22 above). Dr Harrison, in his report accompanying the applicant's claim for permanent impairment compensation (Exhibit R7), merely stated that he agreed with Dr Hayes' "assessment of 10% disability". Dr Clarke, on the other hand, stated in his report of 30 June 2000 (Exhibit R3) that he could not sustain that the applicant has a 10% impairment under Table 9.4 because the applicant, when examined by him, did not complain of, or demonstrate, difficulty with digital dexterity.

The phrase "has difficulty with digital dexterity" in Table 9.4 is imprecise in that the word "difficulty" is not modified adjectivally. That being the case, it is appropriate, in the Tribunal's opinion, to have regard to the relevant "whole person impairment" percentage in Table 9.4 in order to give a sensible and practical interpretation to that phrase in a particular case. In this connection the Tribunal regards a 10% "whole person impairment" as connoting a very significant or substantial impairment of the upper limb. As regards the applicant's digital dexterity in his right hand, his evidence was that he is physically able to perform the normal range of fine, manipulative tasks, such as the examples listed in paragraph 14 above, without any initial difficulty, but that he will start to experience discomfort if he performs those kinds of tasks repetitively for any length of time. The Tribunal also notes Dr Clarke's evidence (see paragraph 30 above) that the applicant's ability to perform such tasks is not aptly described as having "difficulty with digital dexterity".
In the Tribunal's opinion the evidence before it does not support the proposition that the applicant's ability to use his right hand and fingers is so substantially impaired as to equate to a 10% "whole person impairment". Accordingly, the Tribunal finds that the applicant, in respect of his right upper limb, does not have "difficulty with digital dexterity" within the meaning of Table 9.4 in the approved Guide. It follows that no "whole person impairment" percentage can be assessed in respect of the applicant's right upper limb under Table 9.4.

Table 9.6 in the approved Guide relates to the spine, including the cervical spine. As regards the cervical spine, Table 9.6 contains 5 separate descriptions of impairment level and ascribes a different "whole person impairment" percentage to each description, ranging from 0% (in the case of "x-ray changes only") to 20% (in the case of "complete loss of movement").
The Tribunal notes that both Dr Hayes (in his report of 9 December 1999 – Exhibit A2) and Dr Clarke (in his report of 30 June 2000 – Exhibit R3) expressed the opinion that the applicant has a 5% impairment as a result of the condition of his cervical spine. Dr Hayes, however, did not arrive at that assessment by reference to the approved Guide generally and Table 9.6 in particular. Dr Clarke, on the other hand, referred specifically to Table 9.6 in the approved Guide and said that he considered that, under that Table, a 5% "whole person impairment" would apply in the applicant's case.
In the Tribunal's opinion the abovementioned assessments by Dr Hayes and Dr Clarke in relation to the condition of the applicant's cervical spine are not in accordance with Table 9.6 in the approved Guide, having regard to the whole of the medical evidence, including the evidence of those doctors themselves. Dr Hayes' evidence was that, on examination, the applicant had a full range of movement in his neck with no pain and no tender spots. Likewise, Dr Clarke, in his report of 24 June 1999 (Exhibit R1) relating to his physical examination of the applicant on 14 June 1999, stated that the applicant had a "full and normal range of movement" in his neck. Dr Clarke, the Tribunal notes, has not subsequently examined the applicant and it must be concluded, therefore, that Dr Clarke's assessment, in his report of 30 June 2000 (Exhibit R3), of a 5% "whole person impairment" under Table 9.6 – which, according to that Table, applies in the case of "minor restrictions of movement" – is inconsistent with his findings on examination as stated in his report of 24 June 1999 (Exhibit R1). The Tribunal also notes that Dr Whittaker, in his report of 5 October 1998 (T28), stated that the applicant's cervical spine was "non-tender with a full and reported pain-free range of movement". Finally, Mr Batalin, in his report of 7 October 1999 (Exhibit R4), stated that the applicant "exhibited a near normal range of cervical movements", and that he had "minimal degenerative changes in his neck … not inconsistent with his age".
Having regard to the whole of the medical evidence before it, the Tribunal finds that, in relation to the applicant's cervical spine, the appropriate description of the level of impairment in Table 9.6 in the approved Guide is: "x-ray changes only". The "whole person impairment" percentage that is ascribed to that impairment description in Table 9.6 is 0%. Accordingly, the Tribunal finds that the degree of "whole person impairment" of the applicant resulting from the relevant injury to his cervical spine is, in accordance with Table 9.6, 0%.
The Tribunal finds, therefore, that the degree of "whole person impairment" of the applicant resulting from the relevant injury to his cervical spine and right upper limb is, in accordance with Tables 9.6 and 9.4 respectively, 0%. It follows, by reason of s24(7) of the Act, that an amount of compensation is not payable to the applicant under s24 of the Act.
Decision
For the above reasons the Tribunal makes the following decisions:
(1) Application No W1999/134
The Tribunal sets aside the decision under review and, in substitution therefor, decides that the respondent is liable under s14(1) of the Act to pay compensation to the applicant in respect of the injury suffered by him on 8 September 1992 to his neck and his right upper limb (including the right shoulder), but that the respondent is not liable under s14(1) of the Act to pay compensation to the applicant in respect of his left upper limb, back and legs.
(2) Application No W2000/238
The Tribunal affirms the decision under review.

I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Deputy President and
Dr D Weerasooriya, Member
Signed:
...............................(sgd S Railton)................................
Associate
Date/s of Hearing  19 & 20 October 2000
Date of Decision  10 April 2001
Counsel for the Applicant        In person
Solicitor for the Applicant
Counsel for the Respondent    Mr S Pilkinton
Solicitor for the Respondent    Dibbs Barker Gosling