Rush and Australian Postal Corporation
[2008] AATA 185
•5 March 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 185
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 2005/427
GENERAL ADMINISTRATIVE DIVISION ) Re Kristine Louise Rush Applicant
And
Australian Postal Corporation
Respondent
DECISION
Tribunal Mr SC Fisher, Member Date5 March 2008
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
...................[Sgd]...........................
DISTRICT REGISTRAR
CATCHWORDS
COMPENSATION – Damages – employment related injury– left L5-S1 zygapophysial joint pain – permanent injury – zero percent rating given by tribunal – decision affirmed
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5, 14, 16, 19, 24, 27
Comcare v Mooi (1996) 69 FCR 439
Robertson and Comcare [2002] AATA 1259
Comcare v Nichols [1999] FCA 209
Trewin v Comcare (1998) 84 FCR 171
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
National Mutual Life Association of Australasia Ltd v Campbell [2000] FCA 852)
Williams v Muller [2003] FCA 1190
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Suters v Australian Postal Corporation (1992) 28 ALD 320
Henderson and Military Rehabilitation and Compensation Commission [2007] AATA 1184
Stanley and Military Rehabilitation and Compensation Commission [2006] AATA 73
Rogers v Whittaker (1992) 175 CLR 479
Watkins and Comcare [2002] AATA 613
Jones and Department of Defence [1998] AATA 789
Re Nguyen and Comcare Australia (AAT 10133, 18 April 1995)
Whittaker v Comcare (1998) 86 FCR 532
Saxton and Military Rehabilitation and Compensation Commission [2005] AATA 1059
Comcare v Fiedler (2001) 115 FCR 328
Australian Postal Corporation v Bessey (2001) 32 AAR 508
Aunela and Telstra Corporation Ltd [2007] AATA 1392
Re Stoiche and Telstra Corporation Ltd (1996) 40 ALD 369
Australian Postal Commission v Hayes (1989) 23 FCR 320
REASONS FOR DECISION
5 March 2008 Mr SC Fisher, Member Introduction and background
1. Ms Kristine Louise Rush (the applicant) was employed by the Australian Postal Corporation (the respondent) until she accepted a voluntary redundancy with effect from 27 August 2003. By a compensation claim form dated 5 December 1995, the applicant claimed compensation in respect of ‘lower back pain’. The applicant said that this condition arose out of an incident, which took place at work on 20 November 1995, when she was carrying stock from the storeroom and tripped on a ladder and fell to the floor, resulting in lower back pain.
2. By a determination dated 19 December 1995, the respondent accepted liability to compensate the applicant under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) in relation to “L4,L5 disk herniation, soft tissue injury right forearm, right knee.”
3. On 1 October 1997, the respondent determined that from that date, she was no longer entitled to compensation in respect of the earlier accepted condition. This meant that the respondent was not liable to pay the applicant compensation in respect of the claimed compensable condition.
4. On 30 October 1997, following a request for a reconsideration, the respondent varied the 1 October 1997 decision, determining that the applicant was not incapacitated for work as a result of the incident on 20 November 1995 but determining that the respondent was liable to pay reasonable medical expenses only in relation to the incident of 20 November 1995.
5. On 31 January 2005, the respondent denied liability under section 16 of the SRC Act, to pay compensation to the applicant for disabled parking forms.
6. On 24 March 2005, the respondent made a determination under sections 16 and 19 of the Act that it had no present liability to the applicant for a lower back injury sustained on 20 November 1995.
7. On 17 May 2005, following a reconsideration request, the respondent varied the determination of 19 December 1995, and determined that the respondent was liable under section 14 of the Act for left zygopophysial joint pain sustained on 20 November 1995, and also revoked the determination of 24 March 2005 and determined that the respondent was liable under section 16 of the SRC Act to compensate the applicant for reasonable costs incurred in undergoing a fifth radiofrequency neurotomy.
8. On 24 May 2005, the respondent made a determination that the applicant was not entitled to the payment of compensation under sections 24 and 27 of the Act. On reconsideration, the respondent affirmed the 24 May 2005 decision on the 28 June 2005.
9. The applicant disagreed with the respondent's reconsideration and appealed to this Tribunal on 1 December 2005.
Jurisdiction
10. The Tribunal has jurisdiction in this appeal by virtue of Part VI of the SRC Act. References to statutory provisions are to provisions of that Act unless the context indicates otherwise.
The decision under review
11. The decision under review is a decision that has been described earlier in this Reasons for Decision under the heading ‘Introduction and background’.
The legislation
12. The following provisions of the SRC Act were relevant to the resolution of the issues presented by this appeal: ss 4(1), 6, 7, 14, 24, 27.
13. Because of the structure of these provisions, disease is a subset of injury[1]. Section 5(1) of the SRC Act defines disease to include any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development.
[1] See Comcare v Mooi (1996) 69 FCR 439.
Issues
14. The issues in this case are as follows:
A.Does the applicant suffer from a diagnosed injury or disease, namely ‘left L5-S1 zygapophsial joint pain’?
B.If so, has the injury or disease been materially contributed to by the employment of the applicant?
C.Is the impairment suffered by the applicant permanent?
D.Whether, as a consequence of the condition of the applicant, she is entitled to receive compensation under sections 24 and 27 of the SRC Act based on a minimum 10% whole person impairment under Tables 9.5 or 9.6 of the Guide to the Assessment of Permanent Impairment.
General considerations
15. First, in relation to claims to establish liability for an injury or incapacity flowing from that injury, the Tribunal must be satisfied on the balance of probabilities of the existence of the injury or the incapacity and that they were work related: see Robertson and Comcare[2] . A succinct statement of this is found in Comcare v Nichols[3] where Justice Heerey said (at [23]):
“However Mrs Nichols also contended that (i) she had a cervical spondylosis (ii) which was work-related and (iii) which contributed to her present incapacity. If all three elements were established she would have an entitlement to compensation. The Tribunal had to be satisfied of the existence of each element.”
[2] [2002] AATA 1259 at [124].
[3] [1999] FCA 209
Tribunal’s reasons
A. Diagnosis
16. The Tribunal had an extensive body of medical evidence before it in the section 37 documents. Not all of the medical practitioners who have provided medical care and medico-legal reports to the applicant were called to give evidence in this case.
17. At the hearing, medical records were tendered on behalf of the applicant from Dr Brett Halliday, orthopaedic surgeon (medical report dated 14 July 2005). The applicant also called evidence from Dr Anthony Schwarzer, consultant rheumatologist, whose medical reports appeared in the section 37 documents. Both of these medical practitioners gave evidence.
18. For the respondent at the hearing, Associate Professor Bruce McPhee, orthopaedic surgeon (medical report dated 16 September 2005) and Dr John Cameron, neurologist (medical report dated 3 April 2006) both gave evidence.
19. Dr Brett Halliday diagnosed ’left L5-S1 zygapophysial dysfunction‘. Dr Halliday described the condition as stable and stationary and allocated a 10% impairment under Table 9.5 and made a rating of 0% impairment under Table 9.6.
20. Dr Anthony Schwarzer provided many medical reports concerning his treatment of the applicant since 1999, with reports spanning 8 February 1999 - 4 August 2000, and then variously from that date up to and including 8 November 2006. Dr Schwarzer diagnosed the applicant as suffering from ’left L5-S1 zygapophysial joint pain’. Dr Schwarzer rated the applicant as suffering a 10% impairment under Table 9.5.
21. Associate Professor Bruce McPhee said that radiological investigations failed to demonstrate any pre-existing pathology or injury in the lower back or region of the sacred clean joints. Associate Professor McPhee went on to opine that the symptoms of the applicant were not characteristic of any particular disorder and that the complaint of low back pain and left leg pain was without objective evidence of the impairment of lumbar spine, pelvis or lower extremity. On the basis of his clinical examination, Dr McPhee said that the applicant had a normal range of the rest of the lumbar spine movements under Table 9.6, and gave her a 0% impairment. Dr McPhee was not able to confirm by his observations of the applicant a 10% impairment under Table 9.5, and assigned no rating under this instrument.
22. Dr John Cameron said that the applicant did not suffer from facet joint strain, and that her complaints of back pain were non-specific. Dr Cameron could not find any evidence of any existing impairment relating to her lower back. Dr Cameron referred to the normal radiological studies which excluded any structural injury sustained to the lower back. Dr Cameron could not relate her intermittent lower lumbar back pain to the original November 1995 injury.
23. The Tribunal noted that the long-standing specialist treatment from Dr Schwarzer consistently supported a diagnosis of "left L5-S1 zygapophysial joint pain". For example, Dr Schwarzer's report of 25 February 2005, supported this diagnosis based upon carefully performed diagnostic blocks of the L5-S1 joint and discounted a suggested placebo effect.
24. Based upon all of the evidence before the Tribunal, the Tribunal finds that the Applicant suffers from ’left L5-S1 zygapophysial joint pain’. The first major issue in this case results in favour of the applicant.
B. Is the injury or disease of the applicant materially contributed to by her employment?
25. Because of the definition of disease, it must be an ailment or an aggravation of an ailment that was contributed to in a material degree by the applicant’s employment by the Australian Postal Corporation (an agency of the Commonwealth). The combined operation of the defined concepts of injury, disease and ailment in section 4(1) of the SRC Act means that the present inquiry is whether the injury or disease suffered or sustained by the applicant has been materially contributed to, by the employment of the applicant. In Trewin v Comcare[4], Heerey J read Federal Broom Co Pty Ltd v Semlitch[5] as authority that it is not enough for the employee to show that if he had not been employed at all, he would not have suffered that injury or disease. Windeyer J said (at 641):
“... was this aggravation or deterioration contributed to by her employment? This requirement of the Act is not satisfied by showing only that a worker suffering from some disease would or might have suffered less severely if he had not been employed at all. When the Act speaks of "the employment" as a contributing factor, it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed.”
[4] (1998) 84 FCR 171 at 176
[5] 1964) 110 CLR 626 at 632-633 and at 641
26. As Kitto J cautioned in Federal Broom Co Pty Ltd[6] ”Fallacy lurks in paraphrase” (a cautionary dictum repeated by a unanimous Full Court of the Federal Court in National Mutual Life Association of Australasia Ltd v Campbell[7] Even so, because of the statutory language deployed in relation to the word disease, the statutory inquiry in the context of the present case is whether the applicant suffers an ailment or an aggravation of an ailment that was contributed to in a material degree by the applicant's employment by the respondent. In the words of Windeyer J, the contributing factor between the applicant and her employment must be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed. These integers must not be taken in isolation. Those integers take their meaning and have their operation in the context of a practical consideration, namely “not to the fact of being employed, but to what the worker in fact does in his employment”[8].
[6] At 633
[7] [2000] FCA 852).
[8] Federal Broom Co Pty Ltd at 641.
27. The Tribunal considered that there are three separate and distinct limbs in this formulation (with the second and third formulations being alternatives). The first is some event or occurrence in the course of employment. The second is some characteristic of the work performed. The third is the conditions in which it was performed. Because of the definition of "disease", the ailment or aggravation of the ailment must be contributed to in a material degree by the employment of the applicant by the respondent. So to paraphrase or adapt what Windeyer J said in Federal Broom Co Pty Ltd, the contributing factor between the applicant and her employment must be contributed to in a material degree by either: (1) some event or occurrence in the course of the employment; or (2) some characteristic of the work performed; or (3) the conditions in which it was performed, so long as those contributions are related to the practical out working of the employee's tasks.
28. In connecting the course of employment with the requirement for employment to contribute in a material degree to a disease, the Federal Court said the following in Williams v Muller [9].
[58] “Events which occur in the course of employment may mean that a disease was contributed to in a material way by the employment”: see e.g. Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 632, 641; Treloar v Australian Telecommunications Commission (1990) 26 FCR 316; Wiegand v Comcare Australia [2002] FCA 1464; (2002) 72 ALD 795.
[9] 2003] FCA 1190
29. The language of the statutory definition of disease, in its use of the concept of contribution, does not require that the contributing factor be a causa sine qua non; the but for test is not appropriate nor is the causa causans or real effective cause or proximate cause formulation. All that is required is that the relevant aspects of the employment add their measure to the creation of the condition, its aggravation or acceleration. They must, in truth, be part of the cause. If they are not, then, they do not contribute:Treloar v Australian Telecommunications Commission[10].
[10] (1990) 26 FCR 316 at [21].
30. The Tribunal also considered what the Full Court of the Federal Court said in Treloar (at [22]):
“The use of the word "material" in conjunction with the words "contributing factor" in the legislation, where it has occurred in expositions of the section in other cases clearly is not intended to add to the section any significance which is not already to be found in the words used by the legislature. It has served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small.”
31. Even if it is acknowledged that the discussion of materiality in Treloar took place in a legislative context where materiality was not a qualification or statement of sufficiency in relation to contributory factors under the previous Compensation (Commonwealth Government Employees) Act 1971 (as Ryan J did in Suters v Australian Postal Corporation[11]. Treloar is taken to be a valuable exposition of the meaning of the word to which courts and tribunals are entitled to have regard when considering legislation containing it (Suters, at 331). Materiality can refer to an item or thing of such a nature that knowledge of that item or thing could affect a person's decision-making process [the Tribunal adds that this can also be a feature in private law as well as public law: refer TSC Industries Inc v Northway Inc[12]. Material can also mean significant or essential[13]
[11] (1992) 28 ALD 320 at 331),
[12] 426 US 438 at 449 (1976)
[13] Black's Law Dictionary (Abr Seventh Edition, West Group, St Paul, Minnesota, 2000) (entry ‘material’, page 793).
32. Turning now to the medical evidence, the Tribunal considered the following. Dr Schwarzer consistently supported a diagnosis of "left L5 – S1 zygapophysial joint pain" over many years of investigation and treatment of the applicant. His medical evidence connected this condition solely to her employment. Dr Schwarzer has not equivocated from this finding in both his reports and in his evidence. Other medical reports in the section 37 documents support a nexus between this condition and her employment (see, for example, Dr Roland Hicks' Orthopaedic report of 8 January 1996 and Dr Pacey’s report of 3 September 1997).
33. Dr Cameron could not identify any pre-existing or non-work-related medical history condition which impacted on the accepted condition of the applicant.
34. The overwhelming body of medical evidence before the Tribunal supports the nexus between the condition of the applicant and her employment. The evidence of the applicant before the Tribunal supports this finding. So also does a witness statement provided on 5 December 1995. This means that the second major issue in this case is resolved in favour of the applicant.
C. Is the applicant’s medical condition permanent?
35. The third issue is whether the medical condition of the applicant, namely "left L5 – S1 zygapophysial joint pain" is permanent.
36. A consistent thread occurring through the medical reports provided by Dr Schwarzer over many years is that the applicant's accepted medical condition is permanent (in contra-distinction to temporary).
37. Dr Cameron said that while the course of the pain suffered by the applicant was undefined, it was likely that her symptoms will persist (although that if the applicant undertook of regular exercise programme, he expected that her pain should page).
38. Associate Professor McPhee concluded that there was no permanent impairment suffered by the applicant. This is based on his anterior finding that was no impairment at all.
39. The Tribunal is satisfied on the basis of the medical evidence before it that the applicant's medical condition is permanent. This resolves the third major issue in favour of the applicant.
D. Does the applicant have a 10% whole person impairment under Tables 9.5 or 9.6?
40. The final and most critical issue in this case is whether the applicant has a 10% whole person impairment under either of Tables 9.5 or 9.6.
41. The role of the Guide to the Assessment of the Degree of Permanent Impairment and its relationship to sections 24 and 27 of the SRC Act were explained by this Tribunal in Henderson and Military Rehabilitation and Compensation Commission[14]:
9. Section 24 of the SRC Act provides for the payment of compensation for injuries resulting in permanent impairment. The lump sum amount of compensation which is payable in accordance with s 24 is calculated by reference to the “degree of permanent impairment” which, by s 24(5), is to be determined in accordance with the provisions of the “approved Guide”, namely, the Guide to the Assessment of the Degree of Permanent Impairment prepared by Comcare in accordance with s 28 of the SRC Act. Pursuant to s 24(7), where it is determined that the relevant degree of permanent impairment is less than 10%, compensation is not payable under s 24 (except in the case of certain specific categories of impairment, none of which is relevant here).
10. Section 27 of the SRC Act provides that, where compensation is payable under s 24 in respect of an injury resulting in permanent impairment, additional compensation is payable for any “non-economic loss” suffered by the employee as a result of that injury or impairment.
11. The approved Guide contains the “impairment tables” on the basis of which the relevant degree of permanent impairment is to be assessed. Each table contains descriptions of levels of impairment and assigns a percentage of “whole person impairment” – that is, the impairment of the functional capacity of a normal healthy person – to each description.
[14] [2007] AATA 1184 at [9]-[11]
42. In Stanley and Military Rehabilitation and Compensation Commission[15] Member Dr Levy said:
“Table 9.5 refers to a global assessment of impairment of overall limb function (see Re Reid and Comcare (1996) AATA 10649). The neurological consequences of spinal lesions should be assessed under Table 9.5”
[15] [2006] AATA 73 at [69]
43. Medical evidence before this Tribunal in and of itself is not determinative of the ultimate issue for resolution, particularly when (as happens frequently) the medical evidence is fragmented along fault lines corresponding to the adversarial positions of the parties (compare Rogers v Whittaker[16] where the High Court of Australia ruled that that as a general principle courts and, by extension, tribunals must make their own decisions about issues of medical liability and not subordinate to these decisions to the body of expert medical opinion).
[16] (1992) 175 CLR 479
44. Table 9.5 provides in these terms:
% DESCRIPTION OF LEVEL OF IMPAIRMENT
10Can rise to standing position and walk BUT has difficulty with grades and steps
20Can rise to standing position and walk but has difficulty with grades, steps and distances
30Can rise to standing position and walk with difficulty BUT is limited to level surfaces
50Can rise to standing position and maintain it with difficulty BUT cannot walk
65 Cannot stand or walk”.
45. Table 9.6 provides in these terms:
% Description of level of impairment Cervical Spine Thoracolumbar spine 0 X-ray changes only X-ray changes only 5 Minor restrictions of movement Minor restrictions of movement
OR
Crush fracture - compression 25-50 percent10 Loss of half normal range of movement Loss of less than half normal range of movement
OR
Crush fracture - compression greater than 50 percent15 Loss of more than half normal range of movement Loss of half normal range of movement 20 Complete loss of movement Loss of more than half normal range of movement 30 - Complete loss of movement 46. The meaning of "difficulty" in Table 9.5 has itself caused problems Concerning this matter, Member Kenny of this Tribunal in Watkins and Comcare[17] conducted the following comprehensive review which justifies repetition:
[17] [2002] AATA 613
“To meet the threshold of 10% under Table 9.5 of the Guide, the Applicant must be able to rise to a standing position and walk but have difficulty with grades and steps. For the threshold of 20% under that Table, he must be able to rise to a standing position and walk but have difficulty with grades and steps and distances. Clearly, he can rise to stand and can walk; but, does he have "difficulty" with grades and steps or with distances? The term "difficulty" was considered by the Full Court of the Federal Court in Comcare v Fiedler [2001] FCA 1810. There, the Court considered the phrase "difficulty with digital dexterity" as it is used in Table 9.4 of the Guide. The Court rejected the view expressed in earlier Tribunal cases that such difficulty would only arise where that difficulty is "very severe" (see Re Peters and Australian Postal Commission (AAT 9680, 23 August 1994)) or "very significant or substantial" (see Re Holmes and Comcare [2001] AATA 290).
The Court said:
‘22 … The word 'difficulty', like most ordinary English words, has no fixed meaning but is….. a word capable of covering a broad spectrum of restriction and disability in the context of a phrase such as 'difficulty with digital dexterity' in Table 9.4. According to the Macquarie Dictionary, 3rd ed, 'difficulty' connotes a range of conditions from being 'not easy', to being 'hard to do', to 'requiring much effort'. According to the Oxford English Dictionary, 2nd ed, it connotes notions of not being easy, of requiring effort or labour, of being troublesome or hard to do, perform or carry out. An injury that leaves a person in the position of requiring much effort to perform tasks calling for digital dexterity involves a markedly more serious impairment than does an injury which makes it not easy or troublesome for a person to perform such tasks.
23. Something more than minimal problems with digital dexterity is required. But if a person, as a result of his injury, finds it troublesome or not easy to do tasks requiring digital dexterity, that will, adopting the approach to interpretation required by Whittaker v Comcare (1998) 86 FCR 532 at 544 - 545, justify a 10% impairment assessment under paragraph 1 of Table 9.4.
The Tribunal, having correctly rejected the interpretation placed on the phrase in Table 9.4 in Holmes and Peters, appears to have applied an interpretation to this effect to the facts of the case as found by it then it concluded that the Respondent 'clearly has difficulty with digital dexterity in both hands and, indeed, substantial difficulty with digital dexterity with his right hand'. There is no reason to think the Tribunal considered that any difficulty with digital dexterity, no matter how slight, was sufficient to come within par 1 of Table 9.4’." [Emphasis added]”
47. The apogee of Member Kenny's reasoning concerning difficulty is expressed in paragraph [90] where the learned Member said:
“…[An] Applicant will have difficulty if he finds it troublesome or not easy to negotiate grades, steps and/or distances. The limitation need not be significant or substantial but it must be more than slight or minimal.”
48. This Tribunal agrees with that exegesis for the most part except that portion which deals with "grades, steps and/or distances" (emphasis added). Jones and Department of Defence[18] reinforces the proposition that a 20% whole person impairment assessment under Table 9.5 requires difficulty with grades and steps and distances (emphasis in original). The Tribunal in that decision noted Re Nguyen and Comcare Australia[19] where the Tribunal noted that the elements or integers identified in Table 9.5 in each impairment percentage description, for example, ‘grades, steps and distances’, must be read conjunctively.
[18] [1998] AATA 789 at [38]
[19] (AAT 10133, 18 April 1995)
49. Whittaker v Comcare[20] (a decision of the Full Court of the Federal Court) reinforces the understanding of difficulty under Table 9.5 that it means if a person found it troublesome or not easy to do tasks, a difficulty exists.
[20] (1998) 86 FCR 532
50. Saxton and Military Rehabilitation and Compensation Commission[21] adopted the reasoning of the Full Court of the Federal Court in Comcare v Fiedler[22] in reviewing another decision under Table 9.5 on difficulty. The Tribunal said (at [27]):
“A similar approach to that in Fiedler (supra) was followed in the Tribunal case of Carman and Comcare [2002] AATA 946 in relation to a case for assessment under Table 9.5. Member Kenny noted the Applicant would have difficulty if he found it troublesome or not easy to negotiate grades, steps and/or distances. As well, the limitation need not be significant or substantial but it must be more than slight or minimal. The Tribunal accepted the submission that pain may be taken into account as the source of difficulty in performing an activity and referred to other Tribunal cases where this had been considered. We agree that, while pain may be taken into account as a source of difficulty in performing an activity, that is not to say that the mere presence of pain, without more, means that difficulty is experienced.”
[21] [2005] AATA 1059
[22] (2001) 115 FCR 328
51. The relationship between pain and difficulty was examined by this Tribunal in Watkins where the Tribunal said (at [92]):
“While pain and weakness may each be taken into account as a source of difficulty in performing an activity, that is not to say that the mere presence of pain or of weakness, without more, means that there is difficulty experienced. The Tribunal notes the reference in the relevant Principles of Assessment to objective criteria ... and is satisfied that, before there can be a finding that there is difficulty in performing a task because of pain, weakness or some other factor, there must be some objective manifestation of that pain or weakness which reveals the difficulty. To find otherwise would be to equate pain or weakness with difficulty and to allocate impairment ratings for those matters which more properly fall for consideration as lifestyle effects for assessment under non-economic loss.”
52. The Tribunal considered that it was important not to treat "difficulty" within Table 9.5 as some kind of element standing alone. Instead, difficulty is connected with a descriptor of a level of impairment, which for the 10% level of impairment is ’Can rise to standing position and walk BUT has difficulty with grades and steps.’ In other words, the referent for difficulty is the capacity to travel or engage with walking on surfaces involving grades and steps.
53. The Tribunal then considered the evidence relative to the 10% level of impairment in Table 9.5 adduced in this case.
54. During cross-examination of the applicant, the respondent sought to show some videotape recordings of the applicants to her. The Applicant objected to this course. The Tribunal allowed the parties an adjournment to research the admissibility of video evidence not previously disclosed as part of discovery.
55. After the adjournment, counsel for the applicant referred to Australian Postal Corporation v Bessey[23] The Applicant argued that on procedural as distinct from policy grounds: the respondent could only use the undisclosed video evidence if fraud was being alleged against the applicant, but that if there was no fraud, then this was a factor militating against the use of the undisclosed video evidence. The Applicant contended that this was consistent with Australian Postal Corporation v Bessey and amounted to special circumstances such that the use of the video evidence in cross examination should not be allowed to the respondent. The respondent argued against this proposition, saying that was no authority to support the distinction made by the applicant. The Tribunal was not able to find any either.
[23] [2001] FCA 266.
56. What the Federal Court said in Australian Postal Corporation v Bessey in rejecting the proposition that undisclosed video evidence could not be used contrary to procedural fairness being accorded to the applicant in that case was this (at [16]:
“That view is directly contrary to a considerable body of authority in this and other Courts. It will suffice to refer to Australian Postal Commission v Hayes (1989) 23 FCR 320 (“Hayes”), Australian Trade Commission v Underwood Exports Pty Ltd (1997) 49 ALD 411 at 424.1, Rose & Bloxham v AE Bridges (1997) 79 FCR 378 at 387C-G, Re An Application for Writs of Certiorari and Mandamus against Burton; Ex parte Burns [1998] WASC 98, Robbins v Harbord (1994) 62 SASR 229 at 237.8 and BHP Pty Co Ltd v Mason (1996) 67 SASR 456 at 461-465. Those authorities establish that, absent special circumstances, Australia Post was denied natural justice or procedural fairness at least in not being able to show the video to the respondent in cross examination and ask questions based upon that.”
57. This is not a case such as Aunela and Telstra Corporation Ltd[24] where the lawyers for the potential cross-examiner sought directions for the restricted disclosure of video evidence before the hearing. Accordingly, there was no need for a Stoiche undertaking or direction (from Re Stoiche and Telstra Corporation Ltd[25]).
[24] [2007] AATA 1392
[25] (1996) 40 ALD 369
58. The Tribunal allowed the respondent to use the video evidence to cross-examine the applicant. The Tribunal considered that this was consistent with the policy of the law as expressed in decisions such as Australian Postal Commission v Hayes[26] and Australian Postal Corporation v Bessey where a party to proceedings in this Tribunal must be accorded procedural fairness by the Tribunal to cross-examine an opposing party on issues of credit by using, if necessary, previously undisclosed material.
[26] (1989) 23 FCR 320
59. The first portion of video itself was taken on 22 March 2006. The Tribunal and the applicant viewed the video during the hearing. The applicant admitted in cross-examination that the subject of the video was herself.
60. The video footage reveals the following matters. The applicant alighted from her motor vehicle and walked along footpath. She entered a national grocery store, pushed her trolley along various aisles, she reached up to get groceries and stooped down to select groceries and placement her trolley. She appeared to be pushing a trolley along easily enough. The applicant loaded her groceries into the back of her four-wheel-drive, and alighted into the car freely. On another occasion (1 April 2006) the applicant was seen entering a stall selling garments where she was reaching up and handling garments with some ease. Other video footage showed events taking place on 2 November 2006.
61. In cross examination, the applicant agreed that she was shown walking down the street without any difficulty, that she got into a vehicle without any difficulty, that she alighted from the vehicle without any difficulty and that she is able to walk away from the vehicle without any difficulty. The applicant said that whilst pushing the shopping trolley around, she did experience pain. The applicant said that she was leaning on the trolley for support.
62. In re-examination, it emerged that the applicant is entitled to display and does display a disability sticker on her motor vehicle.
63. The Tribunal noted that the video footage dealt with the Applicant in two positions, namely shopping and driving. As well, the applicant did alight from and get into a motor vehicle (which involves negotiating a step into a four-wheel-drive vehicle which has higher clearance from the ground than other motor vehicles), but this was as close as the video evidence got to dealing with "grades and steps" in Table 9.5. Concentrating in particular on this facet, the Tribunal formed the view that the applicant did not have obvious or apparent difficulty with the step of this nature.
64. In her evidence in chief, the applicant did say "it's painful to do any of those things, walk a distance. I walk slowly. I find it difficult walking up and down stairs". In response to a question about gradients, the applicant said "Hills? It's very, very painful. Very slow going."
65. Having regard to what the Full Court of the Federal Court said in Whittaker v Comcare, a difficulty under Table 9.5 exists if a person found it troublesome or not easy to do tasks. The Tribunal was faced with the video evidence confirming the Applicant was able to walk, drive a motor vehicle (including in reverse), but with the video evidence not dealing with grades or steps to any significant extent (except alighting from and getting into a four-wheel-drive motor vehicle). The evidence of the applicant under cross-examination was that she had difficulty with stairs and grades.
66. The Tribunal finds that the applicant overstated the extent of her difficulty with grades and steps by comparison with what she was seen doing in the video footage. The Tribunal is not satisfied on the totality of the evidence before it that the applicant had difficulty with grades and steps as to justify a 10% impairment rating under Table 9.5.
67. While the applicant did invoke Table 9.6, most of the medical evidence did not address this instrument in any significant detail. The applicant was seen in the video footage reaching up and bending down. There were no minor restrictions on movement seen justifying a 5% impairment. The Tribunal finds that the applicant should be given a rating of 0% under Table 9.6.
Tribunal’s conclusion
68. Based upon the material before it, and for these reasons, the Tribunal concludes that the correct and preferable decision is that the left L5-S1 zygapophysial joint pain sustained by the applicant did arise in the course of her employment by the respondent, that this condition is permanent but that it does not cause the applicant difficulty with grades and steps under Table 9.5 of the Guide to the Assessment of the Degree of Permanent Impairment or cause minor restrictions on movement under Table 9.6.
Tribunal’s Order
69. The Tribunal decides to affirm the decision under review.
I certify that the 69 preceding paragraphs are a true copy of the reasons for the decision herein of Member Simon C Fisher.
Signed: .....................................................................................
Research AssociateDate of Hearing 4 September 2006, 21 and 23 November 2006
Final submissions 18 January 2007
Date of Decision 5 March 2008
Counsel for the applicant Mr R Clutterbuck
Solicitors for the applicant Slater & Gordon Lawyers
Counsel for the respondent Mr C Clark
Solicitors for the respondent Sparke Helmore Lawyers
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