Tiley and Telstra Corporation Ltd
[2004] AATA 273
•16 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 273
ADMINISTRATIVE APPEALS TRIBUNAL ) N2003/919
)N2002/811
GENERAL ADMINISTRATIVE DIVISION ) Re GLENN TILEY Applicant
And
TELSTRA CORPORATION LTD
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member
Dr M E C Thorpe, MemberDate16 March 2004
Place Sydney
Decision The decision under review in matter N2003/919 refusing compensation for permanent impairment for Mr Glenn Tiley’s shoulder, neck and back is affirmed.
The decision in matter N2002/811 is varied, and in substitution therefor, the Tribunal finds that pursuant to the Safety Rehabilitation Compensation Act 1988, liability is accepted for Mr Glenn Tiley’s left shoulder and neck injury, but not his back injury. Accordingly, and pursuant to section 16 of the Safety Rehabilitation Compensation Act 1988, the Applicant is entitled to medical expenses which are reasonably required, and a maximum of twelve sessions of physiotherapy consultation per calendar year for his back and left shoulder injury, commencing on 28 January 2004.
Costs are awarded in relation to matter N2002/811 pursuant to section 67(8) of the Safety Rehabilitation Compensation Act 1988, and pursuant to the appropriate AAT Practice Direction.
[Sgd] Ms G Ettinger
Senior Member
CATCHWORDS
Compensable motor vehicle journey injuries – 1971 Act - left shoulder injured in 1982 motorcyle accident with resulting soft tissue neck injury – age related degeneration – lumbar spine claim not sustainable – held not to be due to accidents but due to developmental defect with age related degeneration - claim for permanent impairment refused .
LEGISLATION
Safety Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 19
Compensation (Commonwealth Government Employees) Act 1971 ss 5, 39REASONS FOR DECISION
16 March 2004 Ms G Ettinger, Senior Member
Dr M E C Thorpe, Member1. The applications of Mr Glenn Tiley before the Administrative Appeals Tribunal (“the Tribunal”) were appeals against the decisions of Telstra Corporation Ltd (“Telstra”), in Matters N2002/811 and N2003/919.
2. In Matter N2002/811, the decision of the Respondent was at T24, a decision dated 3 January 2002 in which the Respondent held that Mr Tiley was not eligible for compensation in respect of physiotherapy and specialist medical treatment for his left shoulder and neck. This was affirmed by a decision made on 17 April 2002 (T35). A further decision reviewing the decision of 17 April 2002 was made by the Respondent of its own motion pursuant to section 62(1) and 62(5) of the Safety Rehabilitation and Compensation Act 1988 on 19 August 2002. In that decision, the Respondent held that it was no longer liable to pay physiotherapy and medical treatment expenses for injury to Mr Tiley’s left shoulder, neck and back.
3. In Matter No N2003/919, the Respondent determined on 13 March 2003 that Mr Tiley was not eligible for compensation for permanent impairment in respect of injuries to his left shoulder, neck and back as claimed (T9). This was affirmed by the Respondent on 21 May 2003 (PT11).
4. At the Hearing the Applicant was represented by Mr C Burge of counsel instructed by Ms J Till of JNT Legal, and the Respondent, by Mr B Kelly of counsel, instructed by Ms T Payne of Sparke Helmore Solicitors.
ISSUES BEFORE THE TRIBUNAL
5. The Applicant’s claims were in relation to his left shoulder, back and neck and with regard to treatment (physiotherapy), in Matter N2002/811, and with regard to a claim for permanent impairment in Matter N2003/919. These having been refused, the Tribunal had to decide whether there was liability of the Respondent to provide Mr Tiley with physiotherapy and other appropriate treatment for injury to his back, neck and left shoulder as claimed, and for compensation for permanent impairment to those body parts.
RELEVANT LEGISLATION
6. Given that the injuries had occurred before the currency of the Safety Rehabilitation and Compensation Act 1988, (“the 1988 Act”), the provisions of the Compensation (Commonwealth Government Employees) Act 1971 (“the 1971 Act”) had to be taken into account. The definitions of injury and disease were at section 5 of the 1971 Act, while section 39 of the 1971 Act was relevant to permanent impairment. In addition, section 124 of the 1988 Act was the relevant transitional provision with regard to any rights accrued pursuant to the 1971 Act. Sections 24 and 27 are the relevant sections of the 1988 Act in regard to permanent impairment where the condition became permanent after 1 December 1988.
EVIDENCE BEFORE THE TRIBUNAL
7. Mr Tiley gave oral evidence followed by Dr J Vote, his orthopaedic surgeon who gave evidence by telephone link. Dr D Manohar, a medical specialist in rehabilitation and musculoskeletal medicine whose reports dated 6 August 2003 (Exhibit A2), and 2 May 2000 (Exhibit A3), and Dr G Carr, rheumatologist whose reports dated 6 June 2003 (Exhibit R6), and 15 August 2003 (Exhibit R7), were before the Tribunal, gave concurrent evidence after each having examined the Applicant. They had reviewed other medical reports related to this matter, and gave their evidence after hearing the Tribunal summarise Mr Tiley’s evidence as he had given it before the Tribunal.
TRIBUNAL’S SUMMARY OF MR TILEY’S EVIDENCE GIVEN AT THE HEARING
8. Mr Tiley gave evidence at the Hearing and was cross examined by Mr Kelly. This evidence was summarised by the Tribunal for Dr G Carr, a rheumatologist and Dr D Manohar, a medical specialist in musculo-skeletal and rehabilitation medicine who gave concurrent evidence before the Tribunal. Dr Carr’s reports were at Exhibit R6, dated 6 June 2003, and Exhibit R7, dated 15 August 2003, and Dr Manohar’s at Exhibit A2 dated 6 August 2003 and Exhibit A3 dated 2 May 2000.
9. The Tribunal noted that Mr Tiley was born on 21 December 1949, and is 54 years old. He told the Tribunal that he worked with Telstra mainly in administrative and clerical work, from 1980 until his voluntary redundancy took effect on 11 November 1992. He recounted that on the morning of 2 December 1982, he was involved in an accident in which he veered to avoid a car, while riding his motor cycle to work.
10. Mr Tiley told the Tribunal that his neck, left shoulder and back were painful, and that he felt a burning sensation after the accident. He said that after a pause of about 15 minutes at the accident scene, he wheeled, and then rode his bike to work, where he felt disoriented and nauseous, and actually vomited. Mr Tiley made a report at work, which is not available to the Tribunal because we understand it has been lost. However Mr Tiley’s evidence was that he did not stay at work for the full day, but attended at his general practitioner Dr J Jacob for his neck, shoulder and back.
11. The Tribunal noted that Mr Tiley’s evidence regarding what he told Dr Jacob may not be entirely accurate, because Dr Jacob, in a letter to the GIO, stated that Mr Tiley had attended following the accident on 2 December 1982 because he was tender in the left shoulder region. The Tribunal noted there was no mention of his back or neck.
12. Mr Tiley said that Dr Jacob treated him for about a year, during which he had physiotherapy and acupuncture. He said that due to continuing pain, during 1983, he was referred to Dr J Vote, who is an orthopaedic surgeon. He gave evidence in connection with this, and told the Tribunal that he had undergone a neck manipulation under anaesthetic by Dr Vote in June 1983.
13. Mr Tiley said that after seeing Dr Jacob for approximately a year, he consulted general practitioner Dr E Weiner, whose surgery he has now been attending for approximately 20 years.
14. There appeared to the Tribunal to be some inconsistencies between what Mr Tiley said he told his doctors, and what they had recorded in their notes with regard to complaints about his back, neck and shoulder. When questioned about such, Mr Tiley attributed the differences to the lapse of time. He said that he thought his neck pain, which caused more trouble than his back and left shoulder, was permanent, so he may not have mentioned it often, and just put up with it.
15. Mr Tiley gave evidence of having a large number of physiotherapy and chiropractic appointments over the years. He told the Tribunal that his neck gave him the most pain, but his lower back, and left shoulder were also painful. Mr Tiley said that in 1983, he suffered neck pain daily, but that it varied in intensity. He referred to Dr Vote manipulating his neck under anaesthetic in June 1983, and the Tribunal noted consultations with Dr Vote again in September 1983, November 1986 and December 1990. Mr Tiley said that the manipulation gave him relief for a time.
16. Mr Tiley said that he suffered a further motor vehicle accident in March 1986 while driving to work. He said that he was hit from behind, and that this impacted most on his neck, but did not affect his back. The Tribunal noted that as in connection with the 1983 accident, he did not have time off work, but took time during the work day when necessary, to attend physiotherapy appointments.
17. Mr Tiley’s evidence was that throughout the 1980s, he suffered pain in his neck, left shoulder and lower back. He took a voluntary redundancy from Telstra on 11 November 1992.
18. Mr Tiley said that between 1992 and 1994 his neck and back gave him problems, but that his left shoulder pain was the least of his problems. He managed to work as an internal security person at the Entertainment Centre in Sydney, and at David Jones in store security.
19. Between 1992 and 1996, Mr Tiley underwent some eighty visits to Mr Sabsabi for chiropractic treatment, which he said gave him short term relief. The Tribunal noted that notwithstanding Mr Tiley’s evidence that he had had chiropractic treatment for his back, neck and shoulder, he had completed the questionnaire provided by the chiropractor saying his major complaints were “stiff neck, upper shoulder” (re 1982), and “slight neck” in relation to the 1986 motor vehicle accident. He did not mention his back in the answers given in the questionnaire.
20. The Applicant worked in the juvenile justice system from 1996, and said that in early 1999, he was assaulted by a young woman detainee during which he injured his right elbow and arm, for which a claim is underway. He has not worked since.
21. Mr Tiley said that he has not had treatment for his neck, back or shoulder since March 1999, because as a result of his divorce and his financial problems, he cannot afford any. He told the Tribunal that his neck, shoulder and back problems are no different since the March 1999 altercation, and that he continues to suffer daily pain in those areas, for which he takes analgesics, anti-inflammatories and does exercises.
22. Mr Tiley suffered a further incident in the surf in February 1999 for which he consulted Dr Weiner. The Tribunal noted that notwithstanding Dr Weiner had treated Mr Tiley since approximately 1984, the first mention of neck pain recorded by Dr Weiner was after the surfing incident of February 1999.
23. Mr Tiley told the Tribunal that he played a lot of sport such as cricket, touch football, golf, soccer and that surfed prior to his accidents. He said that he had had to progressively give up all those sports, and had last surfed some six months before the Hearing.
THE APPLICANT’S SUBMISSIONS
24. Mr Burge commenced his submissions with the permanent impairment claim, acknowledging that pursuant to the 1971 Act, and relying on Drs Carr and Manohar’s views that Mr Tiley’s neck and back injury had become permanent in approximately 1983, (that is, well before the currency of the 1988 Act), there was no entitlement for the neck. He suggested however that the back complaint may have become permanent later on, and accordingly perhaps be eligible for permanent impairment.
25. He submitted further that:
· Mr Tiley was a witness of truth, and any errors in recollection were due to the effluxion of time;
· Dr Carr had accepted that the cause of Mr Tiley’s neck problems was the 1982 accident, that Drs Carr, Manohar and Vote all considered Mr Tiley required treatment such as physiotherapy for his neck;
· The Applicant’s evidence as given to his doctors regarding the seriousness of the 1982 accident was consistent;
· Mr Tiley had stated his left shoulder problems were manageable, and that Drs Carr and Manohar had suggested the pain was referred pain from the Applicant’s neck;
· The back complaint was the most contentious due to a lack of early clinical notes, yet an X-ray of the lumbar spine had been ordered and obtained on 28 January 1983 (shortly after the accident indicating concern regarding the back by Mr Tiley’s doctors);
· The Applicant had been unable, since 1996, to continue with his chiropractic treatment due to marital and financial problems.
THE RESPONDENT’S SUBMISSIONS
26. Mr Kelly submitted as follows:
· Notwithstanding that the accident occurred on 2 December 1982, implicating his left shoulder, Mr Tiley’s onset of neck pain some two weeks later was held to be reasonable by Dr Carr;
· Even though Mr Tiley had been seeing Dr Weiner for some 20 years, the Applicant did not mention his neck to Dr Weiner until the surfing accident of 9 February 1999;
· There had been no mention by Mr Tiley of his back to his doctors, Vote, Jacob and Weiner, and his evidence was therefore not reliable;
· Mr Tiley received a third party insurance payout with regard to the 1986 injury.
THE TRIBUNAL
27. Having heard the evidence, the Tribunal had to make the correct and preferable decision regarding liability of the Respondent for an injury to Mr Tiley in a motorcycle accident sustained during the course of a journey to work on 2 December 1982, and a motor vehicle accident in March 1986, taking into account the provisions of the 1971 Act, (and applying the transitional provisions in application of the 1988 Act).
28. A further claim Mr Tiley made was with regard to permanent impairment of the back, neck and left shoulder.
29. The Tribunal accepted the evidence that Mr Tiley was involved in a compensable accident while riding his motorcycle to work on 2 December 1982, and noted that in March 1986 on his way to work, he was involved in a further motor vehicle accident in which a vehicle hit him from behind.
30. The Tribunal noted that Mr Tiley received compensation for the 1986 accident as a result of a common law claim, also noting from medical reports, that the injuries sustained in that accident were minor. The Tribunal noted further, that in filling out a questionnaire for his chiropractor, Mr J Sabsabi, on 1 April 1992, (Exhibit R3), Mr Tiley stated that his major complaints were a “stiff neck and upper shoulder”. He did not mention his back. In the questionnaire, he described the 1986 accident as “slight neck 1986 rear end smash”.
31. The Tribunal noted that as in connection with the 1982 accident, the Applicant did not have time off work after the 1986 accident, but took time during the work day as necessary, to attend physiotherapy appointments. Mr Tiley gave evidence of having a large number of physiotherapy appointments over the years. He told the Tribunal that his neck gave him the most pain, but that his lower back, and left shoulder were also painful. Mr Tiley said that in 1983 he suffered neck pain daily, but that it varied in intensity.
32. The Tribunal noted that the main doctors treating Mr Tiley were Dr Jacob, who was his general practitioner at the time of the 1982 accident, followed by Dr Weiner who, with some gaps, has been his general practitioner for approximately 20 years. There were reports of other doctors in the T-documents which have also been taken into account in these reasons for decision.
33. The Tribunal noted that the GIO General Ltd (“GIO”) wrote to Dr Jacob regarding Mr Tiley in November 2001 (T17, Exhibit R1), and that Dr Jacob replied in an undated letter confirming Mr Tiley’s attendance on 2 December 1982 following his motorcycle accident. He stated that Mr Tiley had fallen to the left side and injured his left shoulder region, and that a diagnosis of musculoligamentous strain and traumatic capsulitis had been made. Dr Jacob confirmed he had prescribed certain medication and physiotherapy, and referred Mr Tiley to Dr Vote. Dr Jacob’s opinion was that Mr Tiley had suffered a soft tissue injury to his neck and left shoulder joint region in the accident of 2 December 1982, and that 18 years later (at the time of writing the report), there was an ageing process in the disc of the cervical region, but that this ageing and degeneration may have been aggravated by 10 percent by the accident. The Tribunal noted there was no mention of a back injury.
34. Mr Tiley was referred to Dr Vote, orthopaedic surgeon, by Dr Jacob in 1983. Dr Jacob stated in his report that Dr Vote confirmed his diagnosis and in June 1983, performed a manipulation under anaesthetic on Mr Tiley’s neck. The Tribunal noted that Dr Vote saw Mr Tiley again in September 1983, November 1986 and December 1990. Dr Vote had a number of reports before the Tribunal in the T-documents, and also gave oral evidence. His most recent report was at Exhibit A1, dated 30 May 2002. In that report he referred to investigations, and opined that the motorcycle accident (1982), caused a short term aggravation of Mr Tiley’s back. He added: “I am sure that the x-ray changes that we now see, in terms of pars defects and spondylolithesis, were present in 1982 and prior to 1982. I would consider that there has probably been no long-term problem in relation to his lumbar spine, which would be reasonably attributed to the accident in 1982. His symptoms now are of a classical degenerative nature and appear to have been slowly progressive over an almost 20 year period.”
35. Dr Vote also gave oral evidence and when questioned about the lumbar spine, agreed that the 1982 motorcycle accident was not implicated if the first mention of back pain by Mr Tiley was to Dr Weiner in 1999, which was recorded as a result of a surfing incident.
36. Dr Vote told the Tribunal that he would agree that some form of physical therapy e.g. physiotherapy every one to two months if a flare-up occurred, could assist Mr Tiley, as well as anti-inflammatory medication.
37. The Tribunal noted that after seeing Dr Jacob for approximately a year, Mr Tiley consulted general practitioner Dr Weiner whom he has now been consulting for approximately 20 years. A report of Dr Weiner to the GIO dated 14 November 2001, was at T20 in Exhibit R1, and his clinical notes were before the Tribunal as Exhibit R5. Dr Weiner wrote that he was aware of Mr Tiley’s neck injury in 1982, and also stated that the Applicant had been complaining of neck and lower back pain, more frequently over the past two years (1999 – 2001). The Tribunal noted that the first entry for back pain in regard to Mr Tiley in Dr Weiner’s notes was on 9 February 1999, recorded as associated with an injury incurred while surfing.
38. Dr Carr, gave oral evidence concurrently with Dr Manohar. Dr Carr stated that Mr Tiley had no neurological deficit in his shoulder, and that his lumbar pain was due to a developmental defect and disc degeneration. Dr Carr also indicated from the clinical notes of Dr Jacob that Dr Jacob had recorded Mr Tiley suffered an injury to his left shoulder causing pain on 25 May 1981, that is before the 1982 motorcycle incident. He opined that the 1982 incident caused a soft tissue injury to the cervical area and that the lumbar area had not been affected at all.
39. Dr Carr suggested that there was a poor prognosis as to Mr Tiley’s neck, and that physiotherapy, some 6 – 12 times a year, would be appropriate management for it.
40. Dr Manohar agreed with Dr Carr regarding Mr Tiley’s neck and a certain contribution to the ongoing degenerative processes by the 1982 motorcycle accident. Both doctors agreed there was a 5 – 10 percent permanent impairment of the neck assessed pursuant to Table 9.6 of the Comcare Guide to the Assessment of Permanent Impairment, although Dr Manohar did not mention the Comcare Guide in his reports and appeared to be using a different Guide appropriate to the State compensation jurisdiction.
41. Dr R Nall, an orthopaedic surgeon qualified by the Respondent also examined Mr Tiley, and had reports before the Tribunal at T15 (dated 29 October 2001) and T29 (dated 11 March 2002) in Exhibit R1. In his report of 2001, Dr Nall stated that Mr Tiley had well established age related degenerative disease of his cervical spine and long standing spondylitic spondylolisthesis. He opined that the latter was developmental and that neither the 1982 nor the 1986 incidents were responsible. He also noted that Mr Tiley did not retire due to his neck or back symptoms. Dr Nall opined that it was likely the 1982 incident had contributed to the degenerative neck disease which had progressed due to the ageing process.
42. Dr J B Stephenson, an orthopaedic surgeon whose reports were before the Tribunal as Exhibits R8 (dated 11 September 2002), and R9, (dated 29 October 2002), shared the opinion of most of the other doctors, holding that Mr Tiley had suffered a soft tissue injury to the neck and shoulder. By contrast however, he did not consider that further treatment such as physiotherapy was indicated (T5 in 2002).
43. The Tribunal was mindful that there were inconsistencies between what Mr Tiley said he told his doctors, and what they had recorded in their notes with regard to complaints about his back, neck and shoulder. When questioned about such, Mr Tiley attributed it to the lapse of time. When asked why he did not tell Dr Vote about the 1986 accident, Mr Tiley first said he could not remember, and then said that he thought his neck pain, which caused more trouble than his back and left shoulder was permanent, so he just put up with it.
44. The Tribunal preferred the contemporaneous notes of the doctors as to what Mr Tiley told them about his complaints, notwithstanding his disagreement with some of the medical records when they were put to him.
45. The Tribunal was satisfied from the evidence (that of the Applicant, Drs Jacob, Vote, Carr, Manohar, Stephenson), that Mr Tiley suffered a soft tissue injury to his cervical spine in the 1982 compensable motorcycle accident. The Tribunal was mindful of Dr Jacob’s letter to the GIO in reply to its letter dated November 2001, (T17), in which he stated that Mr Tiley had fallen to the left side and injured his left shoulder region in the 1982 accident, and that a diagnosis of musculoligamentous strain and capsulitis had been made. The Tribunal was satisfied also from the evidence that Mr Tiley suffered a very minor accident in 1986, so minor he did not need to take time off work in connection with it, or tell his orthopaedic surgeon Dr Vote about it. He himself recorded it on the questionnaire for his chiropractor, as “slight neck 1986 rear end smash”.
46. The Tribunal accepted the medical evidence of Drs Jacob, Carr and Manohar that Mr Tiley suffers age related degeneration of his cervical spine which has been contributed to in a minor way by the compensable 1982 motorcycle accident to which he had been subject. Accordingly, the Tribunal accepted the medical evidence (Drs Carr and Vote), which suggested that certain medication and some physiotherapy may be necessary, and was satisfied that liability of the Respondent was accordingly enlivened. The medical evidence of Dr Carr was that physiotherapy 6 – 12 times a year was appropriate while Dr Vote considered some form of physical therapy every one to two months if flare-ups occurred would assist.
47. The Tribunal was satisfied to the requisite standard that Mr Tiley did not suffer an injury his lumbar spine in either of the 1982 or 1986 accidents. He did not mention the lumbar spine to his doctors at all during the 1980’s. The Tribunal accepted the medical evidence that Mr Tiley has spondylolisthesis which is a developmental defect, and which has been subject to a degenerative process over the past twenty years. The Tribunal was satisfied that the first mention of an injury to the lumbar spine to Dr Weiner who has been Mr Tiley’s treating general practitioner for some twenty years, was recorded as a surfing injury on 9 February 1999. There can thus be no claim for back injury arising out of the 1982 and 1986 accidents.
permanent impairment matter n2003/919
48. The Tribunal had to also deal with the issue of permanent impairment in relation to matter N2003/919, the appeal lodged by Mr Tiley against the refusal of the Respondent to accept liability for permanent impairment of his left shoulder, back and neck as claimed.
49. The Tribunal noted that Mr Burge commenced his submissions by referring to the claim for permanent impairment, acknowledging that pursuant to the 1971 Act, and relying on Drs Carr and Manohar’s views, Mr Tiley’s neck and back injury had become permanent in approximately 1983, (that is, well before the currency of the 1988 Act), so that there was no entitlement for the neck. He suggested the back complaint may have become permanent later on, and be considered pursuant to the 1988 Act, and accordingly perhaps be eligible for permanent impairment.
50. The Tribunal noted also the Respondent’s submissions, referring to the evidence that even though Mr Tiley had been seeing Dr Weiner for some 20 years, he had not mentioned his back to him until the surfing accident of 9 February 1999. Further, that there had been no mention by Mr Tiley of his back to his doctors, Vote, Jacob and Weiner.
51. The Tribunal noted the submissions and all the medical evidence regarding the issue of permanent impairment. In particular the Tribunal noted that Dr Manohar assessed a whole person impairment of 10 percent, and a 20 percent impairment of the neck arising as a result of the (1982) motorcycle incident. He did not indicate what measure he was using. Dr Carr opined that only Mr Tiley’s neck was eligible for a permanent impairment rating which fell somewhere between 5 and 10 percent, and that it became permanent before 1 December 1988 (Exhibit R6). Dr Carr did not consider Mr Tiley’s lumbar spine was hurt in either the 1982 or 1986 accidents. Dr Stephenson did not consider there was any permanent impairment. Dr Vote considered there was a 20 percent impairment of the neck arising from the 1982 motorcycle accident.
52. The Tribunal came to the conclusion from the evidence of the Applicant and the medical evidence, and for the reasons given in the paragraphs above, that the injury to Mr Tiley’s neck and left shoulder as a result of the 1982 motorcycle accident was a soft tissue injury, and that the condition became permanent within approximately a year, that is by the end of 1983. The Tribunal noted the medical evidence (Drs Jacob, Carr, Manohar) that further changes can be attributed to degenerative processes of ageing, which will continue. As the Tribunal has accepted the neck injury became permanent before 1 December 1988, it falls to being assessed pursuant to the 1971 Act, and accordingly, must fail. The claim for permanent impairment cannot be sustained because the 1971 Act made no provision for such a claim.
53. The Tribunal has accepted the medical evidence (Drs Nall, Carr, Vote), which indicated that any lumbar condition which Mr Tiley suffers is due to a development defect and age related degeneration, and not to the accidents of 1982 or 1986, and accordingly no claim for permanent impairment of the lumbar spine can be sustained.
54. Accordingly the Tribunal affirms the decisions of the Respondent in matter N2003/919.
DECISION
55. The decision under review refusing compensation for permanent impairment for Mr Tiley’s shoulder, neck and back in matter N2003/919 is affirmed.
56. The decision in matter N2002/811 is varied, and in substitution therefor, the Tribunal finds that pursuant to the Safety Rehabilitation Compensation Act 1988, liability is accepted for Mr Glenn Tiley’s left shoulder and neck injury, but not his back injury. Accordingly, and pursuant to section 16 of the Safety Rehabilitation Compensation Act 1988, the Applicant is entitled to medical expenses which are reasonably required, and a maximum of twelve sessions of physiotherapy consultation per calendar year for his back and left shoulder injury, commencing on 28 January 2004.
57. Costs are awarded in relation to matter N2002/811 pursuant to section 67(8) of the Safety Rehabilitation Compensation Act 1988, and pursuant to the appropriate AAT Practice Direction.
I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member and Dr M E C Thorpe, Member
Signed: .......................................................................................
AssociateDates of Hearing 27 & 28 January 2004
Date of Decision 16 March 2004
Counsel for the Applicant Mr C Burge
Solicitor for the Applicant Ms J Till, JNT Legal
Counsel for the Respondent Mr B Kelly
Solicitor for the Respondent Ms T Payne, Sparke Helmore Solicitors
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