Walsh and Comcare
[2003] AATA 326
•8 April 2003
|
DECISION AND REASONS FOR DECISION [2003] AATA 326
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2000/1882
| GENERAL ADMINISTRATIVE DIVISION | ) | ||
| Re | DAVID CHARLES WALSH | ||
Applicant
| And | COMCARE |
Respondent
DECISION
| Tribunal | Ms G Ettinger - Senior Member |
Date 8 April 2003
PlaceNewcastle & Sydney
| Decision | The Administrative Appeals Tribunal affirms the decision of Comcare dated 18 September 2000, which was affirmed by the Independent Review Officer of Comcare dated 1 December 2000. That decision made pursuant to sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 disallowed the Applicant, Mr David Charles Walsh’s claim for permanent impairment with regard to an injury suffered on 14 November 1997. Costs: No costs may be awarded in this matter pursuant to section 67(8) of the Safety Rehabilitation and Compensation Act 1988. |
[Sgd] Ms G Ettinger
Senior Member
CATCHWORDS
Compensation – injury at work – whether continuing incapacity - whether permanent impairment – decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 sections 4, 14, 24 and 27
Comcare Guide for the Assessment of the Degree of Permanent Impairment Tables 9.1, 9.4, 9.6
CASE LAW
Hughes-Brown and Comcare [1998] AATA 972,
Morley v Comcare (1996) 40 ALD 725
Comcare v Amorebieta (1996) 66 FCR 83
Whittaker v Comcare (1998) 86 FCR 532
Brouwer v Australian Postal Corporation [2001] AATA 570
REASONS FOR DECISION
| 8 April 2003 | Ms G Ettinger - Senior Member |
The decision under review before the Administrative Appeals Tribunal (“the Tribunal”) was the appeal of Mr David Charles Walsh, the Applicant, against the decision of Comcare dated 18 September 2000 (T28), and affirmed on 1 December 2000 (T32) made in respect of an injury claimed by the Applicant to have been suffered at work on 14 November 1997, (“sprain of left neck muscles”), and disallowing the Applicant’s claim for permanent impairment pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).
The Applicant, Mr Walsh, was represented by Mr C Hart of Bale Boshev & Associates of Newcastle, and the Respondent, Comcare, by Mr J Johnson of counsel, instructed by Phillips Fox Solicitors.
ISSUES BEFORE THE TRIBUNALq
I was mindful that Mr Walsh’s claim (T5), resulting in the decision of the Respondent (T28), and the reviewable decision (T32), had dealt with “sprain of left neck muscles”. However in his opening at the first hearing, Mr Johnson stated as follows:
“The first issue is whether any impairment suffered by the applicant in his neck and left upper limb and that would include the shoulder results from an injury suffered in the course of his employment on 14 November 1997.
Secondly whether any impairment suffered by the employee is permanent and then, thirdly, whether the degree of permanent impairment suffered by the applicant in his neck and upper limbs equals 10 percent or more under the Comcare guide to the assessment of permanent impairment.”
I had to decide:
Whether any impairment suffered by Mr Walsh in his neck, left upper limb and shoulder resulted from an injury suffered in the course of his employment on 14 November 1997;
whether any impairment Mr Walsh suffers with regard to injury to his neck, left upper limb and shoulder claimed to have been sustained at work on 14 November 1997 is permanent; and if so,
whether the degree of permanent impairment suffered by the Applicant in his neck and upper limb and shoulder equals ten percent or more under the Comcare Guide for the Assessment of the Degree of Permanent Impairment (“the Comcare Guide”); and
whether Mr Walsh is therefor entitled to compensation for permanent impairment pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988.
LEGISLATIVE FRAMEWORK
The relevant legislation is the Safety, Rehabilitation and Compensation Act 1988, in particular sections 4, 14, 24 and 27.
Section 4 of the Act defines “disease” and “injury” and follows as relevant:
“4 Interpretation
(1)In this Act, unless the contrary intention appears:
...
“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.
...
“injury” means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
...”
Section 14(1) of the Act provides that:
“14 Compensation for injuries
(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.”
Sections 24 and 27 of the Act deal with permanent impairment and follow as relevant:
“24 Compensation for injuries resulting in permanent impairment
(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee’s condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.
(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.
… ”
“27 Compensation for non-economic loss
(1)Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
…”
The Tribunal was mindful that permanent impairment is assessed pursuant to the Comcare Guide. Tables 9.1, 9.4 and 9,6 of the Comcare Guide were considered, although it was agreed during the Hearing that Table 9.4 was not relevant to Mr Walsh’s claim.
“9 MUSCULO-SKELETAL SYSTEM
TABLE 9.1
Upper Extremity
(Percentage Whole Person Impairment)
| % | DESCRIPTION OF LEVEL OF IMPAIRMENT |
| 0 | X-ray changes but no loss of function of shoulder, elbow or wrist |
| 5 | ANY ONE of the following:
|
| 10 | ANY ONE of the following:
|
| 15 | ANY ONE of the following:
|
....
TABLE 9.4
Limb Function - Upper Limb
(Percentage Whole Person Impairment)
| % | DESCRIPTION OF LEVEL OF IMPAIRMENT |
| 10 | Can use limb for self care AND grasping and holding BUT has difficulty with digital dexterity |
| 20 | Can use limb for self care BUT has NO digital dexterity OR has difficulties grasping and holding |
...
TABLE 9.6
Spine
(Percentage Whole Person Impairment)
DESCRIPTION OF LEVEL OF IMPAIRMENT
| % | CERVICAL SPINE | THORACO-LUMBAR 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 percent |
| 10 | Loss of half normal range of movement | Loss of less than half normal range of movement OR Crush fracture - compression greater than 50 percent |
| 15 | 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” |
EVIDENCE BEFORE THE TRIBUNAL
The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, (‘the AAT Act”), and the following other Exhibits.
| ITEM | DATE | NAME |
| T-Documents | Exhibit A1 | |
| Report of Dr A Isaacs | 10 August 2001 | Exhibit A2 |
| Report of Dr A Isaacs | 6 September 2001 | Exhibit A3 |
| Letter of Dr D Barton to Comcare | 29 October 1998 | Exhibit A4 |
| Report of Dr A Isaacs | 1 May 2002 | Exhibit A5 |
| Report of Dr D Barton | 27 June 2002 | Exhibit A6 |
| Report of Dr S Preston | 10 April 2001 | Exhibit R1 |
| Report of Dr S Preston | 8 May 2001 | Exhibit R2 |
| Report of Dr S Preston | 29 January 2002 | Exhibit R3 |
| Report of Port Stephens Health Service | Various dates | Exhibit R4 |
| Clinical Notes of Dr D Barton | Various dates | Exhibit R5 |
| Hunter Imaging Group | 13 June 2002 | Exhibit R6 |
| Letter of Dr M O'Donohue to Dr D Barton | 12 June 2000 | Exhibit R7 |
| Preliminary Notes - Anna Bay Centre | 17 November 1997 | Exhibit R8 |
| Preliminary Notes - Anna Bay Centre | 24 November 1997 | Exhibit R9 |
| Letter of Phillips Fox to Mr C Hart | 20 September 2002 | Exhibit R10 |
| Letter of Phillips Fox to AAT | 20 September 2002 | Exhibit R11 |
| Letter of Phillips Fox to Mr C Hart | 8 October 2002 | Exhibit R12 |
| Letter of Bale Boshev Lawyers to AAT | 4 October 2002 | Exhibit R13 |
| Report of Dr S Preston | 13 August 2002 | Exhibit R14 |
| Report of Dr S Preston | 11 June 2002 | Exhibit R15 |
Oral evidence was given by the Applicant, Mr David Charles Walsh, when the matter commenced in Newcastle in February 2002, and by Dr S Preston, by telephone link when the matter resumed in Sydney on 16 October 2002.
EVIDENCE OF MR DAVID CHARLES WALSH – THE APPLICANT
Mr Walsh whose date of birth is 24 June 1958, gave oral evidence before the Tribunal. He told me that he had completed the HSC in 1975, trained in nursing at Tamworth Base Hospital, and later worked as a clerk for the GIO. Mr Walsh recounted various other positions he had held, including working for various Commonwealth agencies such as AIDC, from 1988 to 1994. In 1994 Mr Walsh commenced with DEET (as it then was). This was followed by a move to the CES in a clerical capacity, and it was there that on 14 November 1997 that Mr Walsh sustained an injury subject of the present claim. He also said that he had suffered a motor cycle accident in 1979 in which he had hurt his right elbow and hip, but had not injured his neck or left arm.
Mr Walsh said that on 14 November 1997 he had been moving boxes of files around in an upper level office:
“I was moving some boxes of files and one of the boxes that I lifted from a fairly high shelf, as I lifted it out from the shelf the bottom of the box opened, it as an archive box that was folded in from four sides to make the bottom. The bottom opened and the files sort of fell onto me, towards me and I lost my balance... I actually fell back against the shelving behind me and mainly the impact was on my left shoulder.”
Mr Walsh was asked to indicate the area which was hurt and pointed to the upper part of his left shoulder, close to his neck.
Mr Walsh said that the immediate reaction came in the form of a dull ache, not a serious pain. He added: “... I was confident that I hadn’t broken any bones or anything like that ... I’d lost my balance and fallen backwards. It was a fairly firm impact ... I was you know in some moderate amount of pain ...”
Mr Walsh said that he told his supervisor and continued working that afternoon (a Friday), but did not stay late. Mr Walsh described that that night he was “quite uncomfortable” and his shoulder and neck were a little stiff and swollen. Mr Walsh said that he did not seek medical attention over the weekend, but that on the following Monday he consulted Dr Lim, his general practitioner.
Mr Walsh gave evidence that he then had some days off, was cleared for normal duties on 24 November 1997, and completed the claim form (T5), on 25 November 1997. When asked in examination-in-chief, how he felt from that date until taking leave at Christmas, Mr Walsh said that he had good and bad days as far as pain and mobility to the shoulder and neck went. He said that he worked on full duties but was not required to lift heavy boxes. Mr Johnson referred to the note of Mr Walsh’s general practitioner of 24 November 1997 (Exhibit R9) with the statement that the Applicant was “~ 100%” and also had “on examination full range of movement of the neck and shoulder” (Exhibit R5). Mr Walsh said that he had never felt “one hundred percent” since the work related injury, and notwithstanding what the doctor wrote, never had full range of movement since that time.
Mr Johnson put to Mr Walsh that records of November 1997 indicated, his symptoms were intermittent. Mr Walsh replied that the symptoms were variable in their intensity but that they were always present. Similarly, in reference to consultations with Dr Barton in 1999, Mr Johnson asked Mr Walsh whether he had complained of aching on most days but was, on some days, pain free. Mr Walsh disagreed, saying the symptoms were present all the time, and that it was only a matter of intensity. He also did not recall telling Dr Barton that his condition had improved at that time, nor that he was able to demonstrate a full range of movement (T17).
Mr Walsh gave evidence of being “very cautious” about things he was doing during the abovementioned period. He said that he normally played golf, swam, was involved with a surf club, rode motor bikes, bushwalked, rode a push bike, and engaged in a range of outdoor activities such as tennis and squash. In reply to Mr Johnson in cross-examination regarding the playing of sport, Mr Walsh replied that he played tennis, squash and golf as well as riding motorbikes and bicycles and that at times when he planned to play, he would not feel physically well enough and would cancel.
Mr Walsh described his condition in early 1998 as very similar to the period after the accident, and said that he felt then that the injury was not recovering properly. Mr Walsh indicated that Dr Lim had ordered radiological investigations and physiotherapy in January 1998. He said that he found the physiotherapy beneficial in the short term.
Mr Walsh gave evidence regarding the offer of voluntary redundancy in April 1998 as a result of the CES was being abolished. He said that he did not take that option and described his neck as “stiff and uncomfortable” in the period March to November 1998, with some limitation in movement. He described his shoulder as equally uncomfortable, and painful at times.
Mr Walsh said that he was made redundant at the end of 1998, and was then employed by Horizons Golf Resort at Port Stephens in an administrative capacity for approximately nine months. He said that he was still aware of discomfort in his neck and left shoulder when carrying out his work at a desk or computer. Mr Walsh told the Tribunal that during 1999, he “still felt less confident” in regard to sporting activities because of his neck and left shoulder. He referred to playing golf and surfing infrequently, and giving up motor bike riding. Mr Walsh said that during 1999 he consulted his general practitioner from time to time, and requested further physiotherapy through Comcare.
Following his time at the Horizons, and since that time, Mr Walsh has worked in a casual capacity driving for Port Stephens Coaches. Mr Walsh said that driving vehicles with manual gear boxes caused him to be “uncomfortable” in regard to his neck and shoulder, and stated that this varied depending on the day. In reply to Mr Johnson in cross-examination, Mr Walsh agreed that he had achieved the medical standard necessary for driving coaches, (mini-bus to full sized), including those with manual transmissions, and that he could usually manage his work.
Mr Walsh, who is right handed, stated that he noticed his left arm and shoulder were less muscular than the right, because he did not use that side as much.
I noted that in early 2000 Mr Walsh was referred to Dr Isaacs who examined the Applicant and had various tests carried out. Mr Walsh said that during 2000 his symptoms were similar to those in 1999. He described them as “.... at times very limiting and uncomfortable and stiff and quite, you know, quite annoying as far as doing physical things that I would have normally been quite comfortable and confident doing.” He again spoke of “being cautious about the sort of physical things that I would undertake.” Mr Walsh also described discomfort when reaching up, for example, in connection with handling luggage in the coaches.
Mr Walsh was then asked about, and described an assault which took place on 12 June 2000. Mr Walsh described how he had been having difficulties in a relationship, and had been assaulted by the adult son of the woman he had been seeing. Mr Walsh told the Tribunal that he had been struck from behind and in the “middle of the back of the head”.. Mr Walsh said he was knocked to the ground, and suffered swelling and bruising on the back of his hands which he had curled around the back of his head for self protection. He said that he did not suffer neck pain in the assault, but thought there was probably a slight aggravation of his condition (neck and shoulder) because of the swelling around the back of his head and the tension and trauma of the incident. Mr Walsh said that he sought medical attention but did not report the assault to the police.
In cross-examination, Mr Johnson referred to records of the Port Stephens Health Service of 12 June 2000, (Exhibit R4), which recorded Mr Walsh had reported painful areas after being kicked and punched to the back of the head, neck, shoulders and hands and wrists. It further recorded that bruising was observed around the occiput and cervical spine, and left and right scapular. Mr Walsh then agreed that he was bruised on the neck and shoulder on that day. There was also a record of radiological examinations carried out, which included the cervical spine (Exhibit R6). Mr Walsh did not agree with Mr Johnson’s proposition that the forces to the neck and shoulder in the assault were significantly greater than those sustained in the work related incident in November of 1997. Mr Walsh added that the effects of the assault were short term whereas he was still feeling the effects of the work related incident.
Mr Walsh was questioned about his consultation with Dr Preston on 10 April 2001 which he described as a perfunctory examination. He did not disclose anything about the assault to Dr Preston, and indicated it was because he had not been asked about it.
Mr Walsh said that his condition continued similarly through 2001, and described a consultation with Dr Isaacs on 10 August 2001. He said that he did not tell Dr Isaacs about the assault because the effects of it had been short term.
In regard to his present condition, Mr Walsh gave evidence that he was currently still limited in the rotation of his neck, which continued to be stiff and uncomfortable. After demonstrating hand movements to about shoulder level, Mr Walsh said that he avoided things that caused muscle tension or strain, rarely took medication, did exercises as demonstrated by his physiotherapist, and modified his lifestyle to accommodate the discomfort. He said he did not have continuing medical treatment.
Mr Walsh disagreed with the proposition Mr Johnson put that dissatisfaction with his workplace had contributed to him taking time off in relation of his neck and shoulder.
MEDICAL EVIDENCE
The following paragraphs deal with the main medical evidence before the Tribunal.
EVIDENCE OF DR S PRESTON – MBBS FRACP
Dr Preston, whose reports of 10 April 2001 (Exhibit R1), 8 May 2001 (Exhibit R2), 29 January 2002 (Exhibit R3), 13 August 2002 (Exhibit R14) and 11 June 2002 (Exhibit R15), were before the Tribunal, gave oral evidence by telephone link. I have noted some salient points from her reports and oral evidence.
As Mr Hart expressed more than passing interest in Dr Preston’s qualifications, she was asked to give these during her evidence. Accordingly I have recorded that she said that she has a Bachelor of Medicine with an Honours degree, is a Fellow of the Royal Australian College of Physicians and specialises in rheumatology. Dr Preston told the Tribunal that she holds a PhD in Medicine, and is a fellow of the Faculty of Transnational World Australian College of Medicine.
I was mindful that Mr Walsh agreed when questioned, that he had not disclosed the assault to either Dr Preston or Dr Isaacs, and noted from Dr Preston’s report at Exhibit R1 (24 April 2001), that she wrote about the 14 November 1997 incident as follows in regard to Mr Walsh, “[H]e is otherwise well and denies any intervening incidents or accidents.”
Dr Preston found “full movement of the cervical spine with some discomfort reported with all movements. … range of movements in the left shoulder was full in all directions …”. (Exhibit R1)
Dr Preston also stated that:
“It is likely that Mr Walsh will continue to report intermittent discomfort in that region. It is not expected that symptoms will rapidly deteriorate. … Mr Walsh dates his symptoms related to this incident in November 1997. The mechanism for his ongoing symptoms at the present time is not clear but appear to be predominantly muscular in nature.” (Exhibit R1)
In her report at Exhibit R2, Dr Preston opined that Mr Walsh had permanent impairment of the cervical spine of five percent according to Table 9.6 of the Comcare Tables, and stated that there was no impairment of the left upper limb. She clarified this in oral evidence, confirming that there was no permanent impairment of the left shoulder. In oral evidence Dr Preston stated that there were no residual effects of the original 1997 injury.
In her report at Exhibit R3, dated 29 January 2002, Dr Preston, now apprised of the assault through documentation, opined that it was likely the assault was of relevance to Mr Walsh’s neck symptoms, and that underlying degenerative changes contributed to his symptoms. In her oral evidence, Dr Preston conceded that she did not have sufficient information on the assault and could not be sure what role it played with regard to the Applicant’s symptoms, adding “I don’t think anybody can say it is not contributing at all.”
In her oral evidence, Dr Preston confirmed the role of degenerative changes contributing to Mr Walsh’s symptoms, and the fact that both she and Dr Isaacs mentioned that in relation to the results of the bone scan.
In her report at R14, Dr Preston stated that:
“Examination of the cervical spine revealed no abnormality in attitude. Tenderness was noted within the left trapezius. Discomfort was reported with left lateral rotation but range of movement in the cervical spine was full in all directions. … Range of movement was full in both shoulders without reported discomfort.”
In her report at Exhibit R15, Dr Preston commented on a report of Dr Isaacs of 1 May 2002, stating that this did not substantially alter her initial or subsequent commentaries. Dr Preston also opined that: “I think it would also be extremely difficult to exclude with confidence injuries sustained with an alleged assault in 2000 as not contributing to his current neck and shoulder girdle problems.”
Dr Preston, in her oral evidence, told the Tribunal that she disagreed with the finding of rotator cuff syndrome diagnosed by Dr Isaacs. She referred to the report of the ultrasound as being “entirely normal”.
Dr Preston also told the Tribunal in reply to Mr Hart that where there was unhappiness in the workplace, more claims were likely.
EVIDENCE OF DR A ISAACS – ORTHOPAEDIC SURGEON
There was a number of reports of Dr Isaacs before the Tribunal as follows: 6 January 2000 (T20), 28 January 2000 (T23), 6 February 2000 (Exhibit T24), 8 October 2000 (T30), 10 August 2001 (Exhibit A2), 6 September 2001(Exhibit A3), and 1 May 2002 (Exhibit A5). Dr Isaacs did not give oral evidence in this matter.
I noted Mr Walsh’s evidence that he did not tell Dr Isaacs about the assault initially, and it was not until his report of 1 May 2002 (Exhibit A5), that Dr Isaacs mentioned the assault, stating there that Mr Walsh’s residual disabilities were directly related to the injury of 14 November 1997.
The first report of Dr Isaacs before the Tribunal was dated 6 January 2000 (T20). In that report Dr Isaacs found that on examination Mr Walsh had all movements of the cervical spine limited to about three quarters of the normal range. He also reported some tenderness over the supraspinatus muscles on either side, and opined that the Applicant had most likely sustained severe soft tissue injury to the cervical spine without any cervical nerve root irritation and soft tissue injury to the left rotator cuff producing some impingement in the accident of 14 November 1997.
In his report at T23, dated 28 January 2000, Dr Isaacs stated: “The eventual prognosis cannot be predicted. ….. All movements of the cervical spine were limited to about ½ the normal range. He had no neurological deficit in the upper limbs.”
A further report of Dr Isaacs was dated 6 February 2000 (T24). He said that his examination revealed all movements of the cervical spine were limited to about three quarters of the normal range. He opined that as a result of the incident of 14 November 1997, Mr Walsh had “sustained severe soft tissue injury to the cervical spine without any cervical nerve root irritation and soft tissue injury to the left rotator cuff producing some impingement.” This was confirmed in a report of 10 August 2001 (Exhibit A2). He also mentioned the abnormal uptake in the bone scan which he said was consistent with degenerative process and contributed to the disability. At Exhibit A3, dated 6 September 2001, Dr Isaacs agreed that the uptake at C3 was related, on the balance of probabilities, to the original injury.
In the report of 8 October 2000 (T30), Dr Isaacs opined that as Mr Walsh’s condition had been ongoing for almost three years without any improvement, it was unlikely to improve without further treatment.
Dr Isaacs’ final report dated 1 May 2002, was at Exhibit A5. In that report Dr Isaacs confirmed certain findings he had earlier made, and assessed Mr Walsh’s whole person impairment as ten percent pursuant to Table 9.1, as ten percent pursuant to Table 9.6 and as ten percent pursuant to Table 9.4.
DR D BARTON - TREATING GENERAL PRACTITIONER
Dr Barton’s reports to the Respondent are in the T-documents and at Exhibit A4 dated 29 October 1998; Exhibit A6 dated 27 June 2002; various documents at Exhibit R5; Exhibit R8 dated 17 November 1997 which could have been written either by Dr Lim or Dr Barton; and medical records dated 24 November 1997 at Exhibit R9.
Clinical notes of either Dr Barton or Dr Lim which were quite illegible were before the Tribunal as Exhibits R8 and R9. The former, dated 17 November 1997 read:
“L trapezius … injury Friday 1 pm 14/11/97 – while at work with CES - full ROM [range of movement]... tender L trapezius .. NSADS” (Exhibit R8)
The latter, dated 24 November 1997, read:
“saw L neck/trapezius after injury 14/11 – now ~ 100% - occ [occipital] stiffness. o/e [on examination] full ROM neck/shoulder – N [normal duties]” (Exhibit R9)
Dr Barton at Exhibit A4, dated 29 October 1998, stated that “[W]hen I reviewed him on 24.11.97 he stated he was almost 100%, with occasional stiffness in his left neck and trapezius muscles and I cleared him fit for normal duties.” He added that he had reviewed Mr Walsh on 11 May 1998 and that at that stage he was walking and had been able to play golf a few times. His main problem was limitation of neck rotation to the left. As to prognosis, Dr Barton expected Mr Walsh would continue to experience pain in his left neck and trapezius muscles for at least the next six to twelve months.
At Exhibit A6 dated 27 June 2002, Dr Barton wrote that he had made clinical notes on 10 December 1999 (before the assault), as follows:
“He described ache in left neck and trapezius most days
This fluctuated depending on activity
There was some limitation of movement of his neck and shoulder.”
Dr Barton stated that as a result of a consultation in August 2000, he had noted that Mr Walsh was “going well”, that he had occasional stiffness and pain, and that he was managing with a home exercise program. He stated as follows:
“My assessment from these two entries is that there was no significant change in David’s condition between December 1999 and August 2000.”
MAIN INVESTIGATIONS
Newcastle Diagnostic Imaging Pty Ltd reported on 9 January 1998, that: “No abnormality is seen in the glenohumeral joint or acromioclavicular joint. The bones and soft tissues around the shoulder appear normal.” (T6).
A report of Hunter Imaging Group of 14 January 2000 (T21) found as a result of a bone scan that it demonstrated “abnormal uptake in the C3 region in a pattern that is most consistent with a degenerative process. No focal abnormality to indicate fracture or other pathology.”
The ultrasound of the left shoulder dated 14 January 2000 (T22), concluded “[N]ormal examination.”
Dr Preston in her report of 10 April 2001 (Exhibit R1), stated that
“Plain x-ray of the left shoulder of 14.1.00 is a normal examination.
Bone scan from the same date reports mild uptake in the posterior elements of C3, probably early degenerative change.
Plain x-ray of the cervical spine and left shoulder of 9.1.98 is reported as normal.”
The Report of Hunter Imaging Group which is at Exhibit R6, and recorded tests taken on 13 June 2000 after the assault, reported as follows:
Cervical Spine: Alignment satisfactory. Minor disc space narrowing at C5/6 noted. No exit foraminal stenosis on the oblique view.
Shoulders: No fracture or dislocation identified.
This was borne out by the records of the Emergency Room (Exhibit R4), where relevantly, bruising around the occiput, and over the left and right scapulae was recorded as a result of the assault.
SUBMISSIONS AND CONCLUSIONS
I had to consider the whole of the evidence before me, the submissions of the parties, the case law and legislation to make the correct and preferable decision regarding whether Mr Walsh’s injury to his neck, left upper limb and shoulder suffered in the course of his employment on 14 November 1997 resulted in permanent impairment which was compensable pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988. That is, whether there was any impairment, whether it was permanent, and if so, whether any permanent impairment passed the threshold ten percent.
I was mindful that the claim and resulting decision of the Respondent (T28) and reviewable decision (T32) had both dealt with “sprain of left neck muscles”. However in his opening at the first hearing, Mr Johnson stated as follows:
“The first issue is whether any impairment suffered by the applicant in his neck and left upper limb and that would include the shoulder results from an injury suffered in the course of his employment on 14 November 1997.
Secondly whether any impairment suffered by the employee is permanent and then thirdly, whether the degree of permanent impairment suffered by the applicant in his neck and upper limbs equals 10 percent or more under the Comcare guide to the assessment of permanent impairment.”
I was satisfied that the medical evidence had been obtained with regard to Mr Walsh’s neck and left upper limb including his shoulder, and that the decision would be made evaluating taking into account any conditions of his neck, and left upper limb including his shoulder.
By way of background, I noted that the Respondent accepted liability for Mr Walsh’s injury sustained at work on 14 November 1997, which occurred when upon lifting a box of files from a high shelf, he lost balance and fell against shelving, injuring himself.
The claim for permanent impairment for “sprain of left neck muscles” was refused on 18 September 2000 (T28), and this decision was affirmed on 1 December 2000 (T32). I noted for the sake of completeness that liability was ceased on 30 April 1999, so there was a question of whether there was continuing incapacity at all, as well as whether there was permanent impairment which was compensable.
The claim was heard in Newcastle in February 2002, and adjourned for further medical evidence at a point when Mr Walsh unexpectedly disclosed an assault suffered on 12 June 2000 during which he had been injured. Mr Walsh had not disclosed the assault to Drs Isaacs and Preston when they examined him. Some details of the assault were recorded at Exhibit R7, in a report of Dr O’Donoghue to Dr Barton, Mr Walsh’s general practitioner at the Anna Bay Medical Centre, as a result of Mr Walsh attending the Port Stephens Health Service on the evening of the assault, 12 June 2000. The issue of non-disclosure of the assault in connection with this claim brought into question issues of credibility with regard to Mr Walsh and the evidence he had given. Accordingly, the issue of any effects of the assault was raised with Dr Preston when the Tribunal resumed hearing the claim. The Applicant had by then decided not to call Dr Isaacs to give oral evidence, and relied on his reports which were before the Tribunal. Dr Isaacs had prepared most of his reports without knowing about the assault either, and had only recently been informed of it.
When the Hearing resumed in Sydney in October 2002, Dr Preston, who had by then been apprised of the assault through documents supplied to her, gave evidence by telephone. Closing submissions were then made orally to the Tribunal by the parties’ representatives.
APPLICANT’S SUBMISSIONS
Mr Hart urged upon me to take into account the beneficial nature of the legislation (Whittaker v Comcare (1998) 86 FCR 532). He further asked that I not find against the Applicant on the basis of credit. He conceded that:
“...he is a man who for reasons which are less than satisfactory, chose not to disclose a significant event of June 2000 to a subsequent examiner and that his explanations fall short of what is satisfactory and therefore, I anticipate Mr Johnson would say that if it was a question of credit .... that you would find adverse to the Applicant’s interests.
In answer to the anticipated submission, I say that these complaints and records in the period prior to the assault demonstrate the existence of a continuing injury, the existence of a continuing and not insignificant impairment and the existence of continuing losses of range of motion of the cervical spine and left arm.”
Mr Hart also made submissions with regard to the interpretation of the legislation, commenting on restrictions of movement as against refraining from activity as discussed in Hughes-Brown and Comcare [1998] AATA 972, Brouwer v Australian Postal Corporation [2001] AATA 570, and Morley v Comcare (1996) 40 ALD 725 and Comcare v Amorebieta (1996) 66 FCR 83.
Mr Hart submitted that following the injury at work on 14 November 1997, Mr Walsh’s condition had stabilised to its present level, and that the residual impairment (T16/28), was the basis for the permanent impairment claim. He submitted that the evidence in the T-documents tracked the progress of the Applicant’s shoulder and cervical restrictions. He submitted:
“... if you like, the foundation of the balance of what I submit in favour of the Applicant is that from very early on in the piece the effects of the injury from the treatment perspective has been a restriction in motion , a restriction in motion of the neck most particularly and in the left arm, shoulder to a degree, and that the treatment provided was directed to improving it and maintaining it.”
Mr Hart submitted that the (undated) letter of the physiotherapist, Helen Ryan of The Bay Physiotherapy Centre (T19/32), apparently written in reply to the letter of the Respondent dated “November 16, 1999”, was a plea to the Respondent for a continuation of the her program for Mr Walsh. She had, Mr Hart submitted, dealt with the neck, left arm and shoulder restriction.
I noted that Ms Ryan stated:
“3. Mr Walsh’s specific therapeutic benefit has been to maintain a reasonably good cervical rotation and prevent further deterioration of his scapular, cervical and shoulder musculature. ‘Significant progress’ needs to be divided into objective and subjective categories.
(a) Subjectively ‘significant progress is gained by allowing Mr. Walsh to use his cervio/scapular/humeral rhythm advantageously and thus allowing him to perform daily activities.
(b) Objectively ‘significant progress’ is short lived skeletally, but muscularly there has been ‘significant progress’.
4. Mr Walsh’s current symptoms are a loss of cervical range in left rotation and a weakness in cervical scapular and gleno-humeral musculature.
These symptoms are still relevant to his ‘compensable condition’ by virtue of the fact of their anatomical relevance.”
I noted in that connection Ms Ryan urged the provision of a home gym, stating that regular physiotherapy would not then be required. She also stated that:
“Judging by the history of events, it would appear the increase in range of motion, i.e. skeletal/joint is of a temporary nature. The muscular aspect would appear to be permanent.” (T19)
Mr Hart submitted also that the Tribunal rely on Dr Isaacs’ reports at T20 and T24, which predated the assault. He submitted that the records showed a continuing injury which predated the assault with loss of range of movement in the left arm and cervical spine (PT24/41), and submitted further that there had not been a break in the chain of causation and complaints of symptoms. He referred me also to Dr Barton’s report of 29 October 1998 (Exhibit A4), where I noted Dr Barton had summarised a number of consultations Mr Walsh had had with him, during 1998. I noted that Dr Barton mentioned therein a muscular injury and a report by the Applicant of continued stiffness in his left neck and trapezius muscles. Mr Hart also referred to Dr Preston’s report at Exhibit R1 dated 10 April 2001 in which she reported a full range of movement of the cervical spine with some discomfort reported with all movements.
Mr Hart emphasised that Dr Isaacs had found a restriction in the range of motion by Mr Walsh in all directions, and that he had recorded a loss of half of the range of movement which equated to an impairment of ten percent. Mr Hart emphasised referring to the cases of Hughes-Brown (supra) and Re Kay and Comcare (1997) 47 ALD 476 that Mr Walsh’s restriction of movement and loss of function was more than minimal.
I noted Dr Isaacs at PT20/35 wrote as follows to Comcare on 6 January 2000:
“Examination today revealed all movements of the cervical spine were limited to about ¾ of the normal range. He was mainly tender over the lower cervical spine. There was some tenderness present over the supraspinatus muscles on either side. He had no signs of any neurological deficit in the upper limbs. Abduction at the left shoulder beyond 90 degrees brought about some discomfort. External and internal rotation at extremes brought about some discomfort. Flexion and extension again at extremes brought about some discomfort.
I feel as a result of the incident that took place on 14th November 1997 most likely David has sustained severe soft tissue injury to the cervical spine without any cervical nerve root irritation and soft tissue injury to the left rotator cuff producing some impingement.”
In his report at PT24/41, dated 6 February 2000, Dr Isaacs repeated what he had stated in the paragraph directly above this one. He also opined that Mr Walsh had a fifteen percent whole person impairment of the left upper extremity pursuant to Table 9.1 and fifteen percent pursuant to Table 9.6. I noted that later in his report of 1 May 2002 (Exhibit A5), Dr Isaacs assessed Mr Walsh as ten percent whole person impairment pursuant to Table 9.1, ten percent impairment pursuant to Table 9.6 and ten percent pursuant to Table 9.4. The parties agreed and I accepted that Table 9.4 did not apply here at all.
Mr Hart also made submissions with regard to Dr Preston, who, he said, also found a continuation of the injury and a tenderness at the point of the injury. Mr Hart referred me to Exhibit R5, clinical notes of the Anna Bay Medical Centre where Dr Preston practised, and referred to entries of 17 November 1997, and a diagram of Mr Walsh’s injuries which Mr Hart submitted were “completely consistent” on each occasion Dr Preston had seen him. Mr Hart submitted that the injuries in April 2001, were as follows:
“There is a tenderness over the low cervical musculature on the left side including the trapezius and the lavatus scapulae.”
Mr Hart then submitted that at April 2001 (Exhibit R1), Dr Preston reported tenderness over the low cervical musculature on the left side including the trapezius and lavatus scapulae. Mr Hart then submitted that the above sequence indicated there had been no break in the chain of causation or in the complaints of symptoms by Mr Walsh. He submitted, referring to Exhibit 14, that a further report of Dr Preston dated 13 August 2002 further reinforced the continuation of the symptoms, in that she had reported she had re-examined the cervical spine, and found tenderness in the left trapezius, with discomfort reported on left lateral rotation and opined that the examination of the upper limb was unremarkable.
Mr Hart submitted that I discount Dr Preston’s evidence with regard to the assault because her information was obtained from medical records rather than from Mr Walsh himself. He submitted that Dr Preston’s suggestion that minor degenerative changes produced tenderness in the neck and shoulder were unrealistic.
Mr Hart submitted that Dr Isaacs’ reports be preferred over those of Dr Preston because of her lack of qualifications in orthopaedics. He submitted that Dr Preston was acting as an advocate for the Respondent, in particular he suggested she was dogmatic that “somehow the fairly minor degenerative changes produced this point of tenderness in this area of the left lower neck and shoulder.” Mr Hart also questioned Dr Preston’s comments that somehow workplace difficulties had impacted upon Mr Walsh’s claims regarding injuries.
Mr Hart then moved to make submissions about the treating general practitioner Dr Barton’s findings, who, he said, in June 2002 opined that there was no change in Mr Walsh’s condition when comparing it pre and post assault.
In conclusion, Mr Hart submitted that if I should find that Mr Walsh did not reach the threshold for a finding of permanent impairment, then an alternative finding would be that there was a continuation of the injury.
RESPONDENT’S SUBMISSIONS
Not surprisingly, Mr Johnson submitted that the Respondent disagreed with the submissions of the Applicant, and suggested that I reject them.
Mr Johnson emphasised that Mr Walsh could not succeed unless he was found to be suffering an impairment to his neck and left upper limb, which he acknowledged included the shoulder, arising out of the injury of 14 November 1997. That impairment would have to be permanent, and to be compensable, meet the ten percent threshold, he submitted.
Mr Johnson urged me to disregard the Applicant’s submissions that there was a clear continuous complaint. Mr Johnson submitted that the clinical notes of Dr Barton of 24 November 1997 indicated that Mr Walsh was 100 percent. He submitted that even on 17 November 1997 (Exhibit R8), Mr Walsh was recorded as having a full range of movement. He also referred to Dr Preston’s report at Exhibit R14 dated 20 August 2002 in which she had recorded: “ Examination of the cervical spine revealed no abnormality. Tenderness was noted within the left trapezius … Examination of the upper limbs reported no shoulder girdle asymmetry. Range of movement was full in both shoulders without reported discomfort.” He submitted that the Tribunal rely on Amorebieta (supra) as to avoidance of activity due to pain, and Hughes-Brown (supra).
In addressing the assessment of impairment, he referred to the voluntary abstention from activity, and cited Amorebieta (supra) and Hughes-Brown (supra) He submitted that in Amorebieta (supra), the Court had observed that the voluntary abstention from physical activity to prevent onset or alleviate pain could not be taken into account in determining the level of permanent impairment.
Mr Johnson submitted, relying on Amorebieta (supra), that Dr Preston’s approach in assessing any impairment of Mr Walsh was the correct one in that it entailed a comparison in the function or range of movement of the Applicant with that of a normal healthy person. He referred to Dr Preston’s opinion, namely that there was no neurological loss, and no loss of function at all.
Mr Johnson submitted that Dr Preston had found a full range of movement in Mr Walsh’s neck and shoulder, and that although Dr Isaacs accepted a degree of restriction, he had opined that it was not permanent. In that regard Mr Johnson submitted that to be found to have an impairment under Table 9.6 in the Comcare Guide, there had to be a permanent loss of movement of the neck and shoulder. The Respondent considered from the evidence before the Tribunal that any loss of movement in the shoulder was less than ten percent. Mr Johnson noted that there was considerable inconsistency between the range of movement reported by each of the doctors, Preston and Isaacs, suggesting that perhaps Dr Isaacs may have been simply uncritically recording what the Applicant had demonstrated for him on the particular occasion of the examination.
Mr Johnson also referred me to Exhibit A4 dated 29 October 1998, where Dr Barton had recorded “he was almost 100%, with occasional stiffness in his left neck and trapezius muscles”. Mr Johnson submitted that this was “a very very low level of complaint.” Mr Johnson submitted that both Dr Preston and Dr Isaacs had mentioned a degenerative process which was also indicated in radiological material before the Tribunal (T6, and the bone scan at T21). He submitted that the ultrasound (T22) indicated no evidence of impingement.
Mr Johnson also referred to the report of Dr Isaacs of 1 May 2002 (Exhibit A5). Mr Johnson submitted that Dr Isaacs reported Mr Walsh’s subjective complaints. He submitted that they could by no means be found to be permanent when Dr Preston was twice able in that period to find a full range of movement, with Dr Barton also reporting a full range of movement from time to time. He said further that as to the suggested rotator cuff injury, this was in total conflict with the evidence of Dr Preston who could not find any evidence of a painful arc. Further the sports which Mr Walsh played, such as golf and tennis were difficult to reconcile with a rotator cuff problem, he submitted.
Mr Johnson also referred to Dr Isaacs’ report of Mr Walsh in relation to Table 9.4 of the Comcare Guide and submitted that the application of that table was an error, and undermined the credibility of Dr Isaacs’ assessments. (Mr Hart accepted that Table 9.4 did not apply in this case), and I accepted that was the case.
Mr Johnson also referred to Exhibit A6, the report of Dr Barton, submitting that Dr Barton had treated Mr Walsh longer than any other of the practitioners before the Tribunal, and that his clinical notes of 1999, before the assault, recorded occasional (rather than constant), stiffness in the left neck and trapezius.
Mr Johnson submitted that Mr Walsh was now exaggerating his claim of restriction and pain. He referred to PT5/7 where Mr Walsh had on 25 November 1997 written: “I feel little effect now as I am close to full recovery. I do experience occasional tension and slight pain”, and at PT26/46 where on 3 April 2000 he had written: “I regularly (most days) experience pain due to injury”. Mr Johnson submitted that in contrast to Mr Hart’s submissions which were that there was a continuity of symptomatology and function, the Respondent submitted what was actually present was a person with a minor restriction from time to time. Mr Johnson referred to the evidence Mr Walsh gave of refraining from activity because of a lack of confidence and symptoms being present from time to time. Mr Johnson also referred to Mr Walsh’s activities of golf, tennis, squash and bike riding, submitting that these did not accord with someone who suffered a particular shoulder problem, in particular a rotator cuff problem.
As to the assault, Mr Johnson submitted that this went to Mr Walsh’s credit, and referred to his evidence at pages 31 to 33 of the transcript of 11 February 2002 in which the Applicant stated there had been no frank blow or bruising to the neck or shoulder. Mr Johnson asked that I compare that with the cross-examination at pages 40 – 43 and page 53 of the transcript of 11 February 2002, and Exhibit R4, which indicated there was bruising over the left and right scapulae and around the occiput and cervical spine. Mr Johnson added that he was not urging the Tribunal to find that the assault was the cause of Mr Walsh’s ongoing problems. He did however suggest that the difference in evidence given by Mr Walsh in examination-in-chief and in cross-examination with regard to the assault, had a bearing on Mr Walsh’s credit. He submitted further that Mr Walsh had acknowledged having told neither Dr Isaacs nor Dr Preston about the assault.
Mr Johnson referred to Dr Preston’s written reports and oral evidence, referring to the fact that having previously agreed there was a five percent impairment, she had in her oral evidence indicated that any ongoing problems Mr Walsh has were in fact due to low level degenerative processes.
In closing, Mr Johnson replied to Mr Hart’s criticism of Dr Preston, whom the latter had accused of being an advocate for the Respondent, submitting that “there is simply no basis for that”. He also replied to Mr Hart’s criticism of Dr Preston’s comment regarding Mr Walsh’s dissatisfaction at work. Mr Johnson stated that:
“... it is a simple statement of the obvious, that if someone is not enjoying the workplace for whatever reason then they might be more inclined to make a claim or to take a course which involves them being compensated.”
THE TRIBUNAL
Having heard the parties, I considered the evidence of Mr Walsh, the medical evidence and the legislation and case law. I accepted Mr Hart’s submission that the workers’ compensation jurisdiction is the subject of beneficial legislation. I moved then to consider whether Mr Walsh suffers any impairment in his neck, left upper limb and shoulder as a result of an injury at work on 14 November 1997. If found to be so, the Tribunal is to consider whether it is permanent, and if permanent whether the degree of impairment reaches the ten percent threshold according to the Comcare Guide required for it to be compensable.
In deliberating, I reviewed Mr Walsh’s evidence and the related medical evidence. In that regard, I was mindful of the Applicant’s evidence indicating he had injured the upper part of his left shoulder close to the neck area, and suffered a “dull ache, not a serious pain” on Friday 14 November 1997. The records before me (Exhibits R8 & T9), indicated that the following Monday, 17 November 1997, Mr Walsh consulted Dr Lim with discomfort. He described his neck and shoulder as “a little stiff”.. The notes of the consultation at Exhibit R8, recorded as follows:
“On examination full range of movement of the neck and shoulder”.
A further entry in the clinical notes at 24 November 1997, (Exhibit R9), recorded that Mr Walsh was “~ 100%”, had, “on examination full range of movement of the neck and shoulder”, and was cleared to return to normal duties.
I noted also that the document Exhibit A4, a report of Dr Barton to Comcare dated 29 October 1998, stated:
“When I reviewed him on the 24.11.97 he stated he was almost 100%, with occasional stiffness in his left neck and trapezius muscles and I cleared him for normal duties.”
Another important document in relation to the incident of 14 November 1997, was Mr Walsh’s claim form at T5, dated 25 November 1997, in which he claimed compensation, and in which he stated that the medical certificate recorded the diagnosis of “sprain injury left neck muscle”. In reply to question 17(c) of the form, which asked how the injury affected him at the date of claim, Mr Walsh had written: “I feel little effect now as I am close to full recovery. I do experience occasional tension and slight pain.” He stated on the form that he returned to work on 20 November 1997, carrying out full duties but without lifting heavy boxes.
All those contemporaneously completed documents referred to above, including one incorporating Mr Walsh’s own words, indicated that the injury of 14 November 1997 had all but resolved by the end of November 1997.
I noted that liability which was accepted by the Respondent was ceased in April 1999.
In coming to a decision regarding any continuing effects of the November 1997 injury, I took into account Mr Walsh’s oral evidence at the Hearing that he has never felt “100 percent” since the injury, and has never had full range of movement since. That of course did not accord with the reports of doctors made in late November 1997, including Mr Walsh’s general practitioner Dr Barton, and later as discussed above. I noted further that Dr Barton wrote to Mr Walsh’s legal representatives on 27 June 2002 (Exhibit A6), referring to a consultation in August 2000, and stating: “… I noted he was “going well” that he had occasional stiffness and pain … I noted that he was stable. My assessment from these two entries [10 December 1999 and August 2000] is that there was no significant change in David’s condition between December 1999 and August 2000.” I noted also that Dr Barton referred at Exhibit R5, dated 10 June 1999, to examinations carried out in January and March 1999. He reported there that examination on both occasions revealed a slight restriction (about ten percent) of Mr Walsh’s lateral rotation to the left, with full range of movement of his shoulder.
Mr Hart made submissions to the effect that, notwithstanding the assault Mr Walsh suffered on 12 June 2000, the chain of causation was present, there was a clear and continuous complaint, and that the Applicant’s condition had stabilised to its present level. The residual impairment was the basis for the permanent impairment claim, Mr Hart submitted.
In connection with the assault, I noted Mr Hart’s concession that Mr Walsh “for reasons which are less than satisfactory chose not to disclose a significant event of June 2000 to a subsequent examiner and that his explanations fall short of what is satisfactory …”.. He was of course referring to the assault Mr Walsh suffered on 12 June 2000 which the Applicant did not disclose to either Dr Isaacs or Dr Preston.
I was also concerned that there were inconsistencies between the medical notes recording the effects of the assault (Exhibit R7) in which Dr O’Donoghue recorded Mr Walsh having sustained blows to the “head, neck, upper back and wrists”, when compared with Mr Walsh’s account of having been hit in the “middle of the back of the head” and onto his hands which he said he had cupped around his head. I noted Mr Walsh’s evidence at pages 31 to 33 of the transcript of 11 February 2002 in which the Applicant stated there had been no frank blow or bruising to the neck or shoulder. I was mindful that in cross-examination at pages 40 – 43 and page 53 of the transcript of 11 February 2002 Mr Walsh conceded, when it was put to him, that he had been bruised on the neck and shoulders during the assault. I compared that also with Exhibit R4, which indicated there was bruising over the left and right scapulae and around the occiput and cervical spine.
I noted that the Respondent did not press the Tribunal to find that the assault was the cause of Mr Walsh’s claimed ongoing problems. I accepted however Mr Johnson’s submission that the difference in evidence given by Mr Walsh in examination-in-chief and in cross-examination with regard to the assault had a strong bearing on Mr Walsh’s credit.
I then moved to consider Mr Hart’s proposition that Mr Walsh had a clear and continuous complaint based on the incident of 14 November 1997. I noted also Mr Johnson’s submission that Mr Walsh was exaggerating his claims of restriction and pain, noting that in his claim form dated 25 November 1997 (PT5/7), Mr Walsh had written “I feel little effect now as I am close to full recovery. I do experience occasional tension and slight pain.” At PT26/47, dated 3 March 2000, Mr Walsh indicated he had pain most days, and restricted mobility with loss of confidence to carry out certain physical activities. Mr Johnson submitted that in contrast to Mr Hart’s submissions which were that there was a continuity of symptomatology and function, the Respondent submitted what was actually present was a person who from time to time had a minor restriction. Mr Johnson referred to the evidence Mr Walsh gave of refraining from activity because of a lack of confidence and symptoms being present from time to time.
After reviewing the evidence and submissions, I rejected the proposition that there was a continuity of symptomatology and function on the basis that:
Mr Walsh’s credit was in issue;
I noted from the clinical notes of Dr Barton of 17 November 1997, that notwithstanding an entry regarding tenderness, Mr Walsh was reported as having a full range of movement in his neck and shoulder;
An entry in medical records at 24 November 1997, (Exhibit R9), ten days after the injury recorded that Mr Walsh was “~ 100%”, had, “on examination full range of movement of the neck and shoulder”, and cleared him to return to normal duties. This was in contrast to his evidence given at the Hearing where he said that he had never felt 100 percent since the incident of 14 November 1997;
Mr Walsh stated in a compensation claim at T5, dated 25 November 1997, that the medical certificate recorded the diagnosis of “sprain injury left neck muscle”.. In reply to question 17(c) of the form, which asked how the injury affected him at the date of the claim, Mr Walsh wrote: ”I feel little effect now as I am close to full recovery. I do experience occasional tension and slight pain”;
There was also the supervening event of 12 June 2000 when Mr Walsh was assaulted and incurred bruising to his neck, hands and shoulders after being struck on those parts of his body. Although the Respondent did not press me to find that the assault was the cause of Mr Walsh’s claimed continuing problems, I noted Dr Preston’s oral evidence in which she stated that it would be extremely difficult to exclude with confidence injuries sustained with an alleged assault in 2000 as not contributing to the Applicant’s current neck and shoulder girdle problems. In that regard I noted also Dr Barton’s report that he did not find any significant change in Mr Walsh’s condition between examinations conducted by him in December 1999 and August 2000, inferring that the assault had no lasting effect on Mr Walsh's condition. I did not attribute Mr Walsh’s claimed symptoms to the assault, but his reporting of it created doubts as to his credit as noted above;
Both Drs Isaacs and Preston referred to degenerative changes taking place which was confirmed by the bone scan (T21);
Dr Isaacs’ diagnosis of rotator cuff injury was not confirmed by any objective testing, was disagreed with by Dr Preston, and was not consistent with the Applicant playing golf or tennis;
Dr Isaacs reported at T30, dated 8 October 2000 that as Mr Walsh’s condition had been ongoing for almost three years without improvement, it was unlikely to improve without further treatment, indicating to me that any condition he suffered was not permanent;
Mr Walsh achieved the medical standard necessary for driving coaches, including those with manual transmissions, and has been doing so on a casual basis since leaving Horizons in late 1999;
Dr Barton had opined that Mr Walsh was almost 100 percent on 24 November 1997, and after a consultation in August 2000, had found occasional stiffness and pain which was being managed by a home exercise program;
Both Dr Barton and Dr Preston had found that Mr Walsh had almost full range of movement which I preferred to the findings of Dr Isaacs who found greater restriction. I was mindful that Dr Barton was the treating general practitioner who had seen Mr Walsh shortly after his incident of 14 November 1997, and for the years to follow.
In coming to a decision whether Mr Walsh suffers permanent impairment which is compensable, I took into account his evidence that he has never felt 100 percent since the incident of 14 November 1997. I have also noted Mr Walsh’s oral evidence that he was cautious, and avoided activities which he thought could cause pain such as golf, surfing, and other sports in which he had previously engaged. Voluntary abstention from activities was discussed in the cases of Amorebieta (supra) and Hughes-Brown (supra), and I accepted that such abstention cannot be used to measure impairment when applying the Comcare Tables.
Accordingly, in considering any assessment of impairment according to the Comcare Tables, I was mindful of the exchange between Mr Hart and Dr Preston regarding measurement of loss of range of movement. I was mindful that in Amorebieta (supra), Jenkinson J, in discussing the measurement of “loss of normal range of movement” which arises when applying tables in the Comcare Guide held that the phrase is used in the sense in which is it is understood by medical practitioners when used in reference to the human musculo-skeletal system, and voluntary abstention from physical activity to prevent the onset of pain or to alleviate pain is not otherwise to be taken into account. Clearly, that is how the Tribunal must approach the application of the tables. His Honour stated in that case:
“… the Guide is intended to prescribe criteria by which the degree of permanent impairment shall be determined. Loss, or loss of use, or the damage or malfunction, of a bodily system or function or part thereof resulting from injury does not in my opinion comprehend voluntary abstention from use, even where the abstention is calculated, and likely to benefit the bodily system or function….”
I turned then to consider Mr Walsh’s situation in relation to Tables 9.1 and 9.6 of the Comcare Guide. I noted that although Table 9.4 was mentioned by Dr Isaacs, it concerned impairment of digital dexterity and had no application in this matter.
I then considered the investigations which had been made of Mr Walsh, noting as follows:
Newcastle Diagnostic Imaging Pty Ltd (T6) dated 9 January 1998 – no abnormality in glenohumeral joint or acromioclavicular joint; bones and soft tissues around the shoulder appear normal.
Hunter Imaging Group (T21) dated 14 January 2000 – bone scan demonstrated abnormal uptake in C3 region consistent with degenerative process;
Ultrasound of left shoulder (T22) 14 January 2000 – normal examination;
There was no objective measurement of impairment arising out of the abovementioned investigations, except abnormal uptake noted in the C3 region which was described by both Drs Isaacs and Preston as consistent with a degenerative process. That of course is not compensable;
I moved then to deal first with the application of the Comcare Tables, noting that Table 9.1 deals with the shoulder elbow and wrist.
“9 MUSCULO-SKELETAL SYSTEM
TABLE 9.1
Upper Extremity
(Percentage Whole Person Impairment)
| % | DESCRIPTION OF LEVEL OF IMPAIRMENT |
| 0 | X-ray changes but no loss of function of shoulder, elbow or wrist |
| 5 | ANY ONE of the following:
|
| 10 | ANY ONE of the following:
|
| 15 | ANY ONE of the following:
|
....
TABLE 9.4
Limb Function - Upper Limb
(Percentage Whole Person Impairment)
| % | DESCRIPTION OF LEVEL OF IMPAIRMENT |
| 10 | Can use limb for self care AND grasping and holding BUT has difficulty with digital dexterity |
| 20 | Can use limb for self care BUT has NO digital dexterity OR has difficulties grasping and holding |
...
TABLE 9.6
Spine
(Percentage Whole Person Impairment)
DESCRIPTION OF LEVEL OF IMPAIRMENT
| % | CERVICAL SPINE | THORACO-LUMBAR 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 percent |
| 10 | Loss of half normal range of movement | Loss of less than half normal range of movement OR Crush fracture - compression greater than 50 percent |
| 15 | 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” |
Turning to Table 9.1 and 9.6, I was mindful of the radiological and ultrasound investigations conducted (x-rays of 1998 (T6), bone scan of 2000 (T21), and ultrasound of 2000 (T22)), which indicated that apart from some degenerative changes, Mr Walsh’s cervical spine and shoulder were normal. I was mindful of Mr Walsh’s evidence that he was cautious about use of his upper limbs and shoulder, and accepted the submissions of Mr Johnson that Dr Isaacs in noting loss of three quarters of the normal range of movement of the cervical spine, simply recorded restrictions of movement as reported by Mr Walsh. My understanding of this from Mr Walsh’s evidence was that he may have consciously restricted his movement, which relying on Amorebieta (supra) and Hughes-Brown (supra), cannot be taken into account when assessing permanent impairment pursuant to the Comcare Guide.
Accordingly I preferred the assessments made by Dr Preston who opined that Mr Walsh had a five percent impairment of the cervical spine according to Table 9.6 (put at its highest), and no impairment of the left upper limb, (shoulder) (Exhibit R2). Dr Preston also stated that there were no residual effects of the 1997 injury.
I did not accept Dr Isaacs’ diagnosis of rotator cuff injury as the ultrasound (T22) was normal, and rather relied on the view of Dr Preston who did not find such injury. I also took into account the view that Mr Walsh’s sporting activities, (golf and tennis), did not accord with having rotator cuff injury.
I found from the evidence that any restriction of the shoulder which Mr Walsh feels, is intermittent, and if there was an impairment according to Table 9.1, then this was less than the threshold ten percent and due to degenerative change.
In considering Table 9.6 which relevantly deals with the cervical spine, I noted that the radiological investigations were normal. Dr Isaacs reported movements of the cervical spine limited to about half the normal range in January 2000 (T23), and about three quarters of the normal range in February 2000 (T24). He rated Mr Walsh’s impairment at ten percent pursuant to Table 9.6. Dr Preston opined that Mr Walsh had five percent impairment of the cervical spine pursuant to Table 9.6. I noted that Mr Johnson referred in his closing submissions to Dr Preston’s written reports and oral evidence, referring to the fact that having previously agreed there was a five percent impairment, she had in her oral evidence indicated that any ongoing problems Mr Walsh has, are in fact due to low level degenerative processes.I was mindful that in any case five percent is below the compensable threshold.
Based on the objective radiological and other investigations, and the findings made thereon, and the opinion of Dr Preston which I have preferred to that of Dr Isaacs who seems to have taken into account subjective accounts of restriction of movement demonstrated during examination, I find that Mr Walsh does not suffer impairment in his neck, left upper limb and shoulder as a result of the incident of 14 November 1997 which is permanent. Any impairment Mr Walsh suffers is due to degenerative changes as found by both Drs Isaacs and Preston.
I was satisfied that rather than a continuity of symptomatology and function, what was actually present was a person who suffers a minor restriction from time to time. To even reach the five percent level in Table 9.1, Mr Walsh would have to demonstrate x-ray changes with minimal loss of function of shoulder, elbow or wrist. However I did not have indication of “x-ray changes” before me.
As to Table 9.6, I have already stated that I preferred the opinion of Dr Preston and have accepted that Mr Walsh may have intermittent minor restrictions of movement in his cervical spine, which again however, applying the Comcare Guide, is not compensable. Accordingly the application of Mr Walsh to be compensated for permanent impairment as a result of the incident of 14 November 1997 must fail.
By way of completeness, I was mindful of Mr Hart’s objection to Dr Preston’s comment that where there was unhappiness in the workplace, that was more likely to be associated with claims. In the absence of further information regarding such unhappiness, I have not taken that aspect of Dr Preston’s evidence into account in reaching a decision.
I put on record that notwithstanding Mr Hart’s questioning of Dr Preston with regard to her qualifications to comment on Mr Walsh’s condition, I was satisfied that she was entirely qualified to do so. Further I did not find Dr Preston to be acting as an advocate for the Respondent.
In conclusion, I was not satisfied that Mr Walsh suffers any impairment which is permanent. He can be said to suffer a minor restriction form time to time and to suffer degenerative changes as indicated on the bone scan. That is not compensable in relation to any of the Tables in the Comcare Guide against which he was assessed. I was unable to find that Mr Walsh is permanently impaired within the terms of the legislation as a result of the incident at work on 14 November 1997. His claim must therefore fail.
DECISION
The Administrative Appeals Tribunal affirms the decision of Comcare dated 18 September 2000, which was affirmed by the Independent Review Officer of Comcare dated 1 December 2000. That decision, made pursuant to sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 disallowed the Applicant, Mr David Charles Walsh’s claim for permanent impairment with regard to an injury suffered on 14 November 1997.
No costs may be awarded in this matter pursuant to section 67(8) of the Safety, Rehabilitation and Compensation Act 1988.
I certify that the 131 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger Senior Member
Signed: L Bonouvrie
Associate
Dates of Hearing 11 February 2002; 16 October 2002
Date of Decision 8 April 2003
Solicitor for the Applicant Mr C Hart, Bale Boshev & Associates
Counsel for the Respondent Mr G Johnson
Solicitors for the Respondent Phillips Fox Solicitors
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