Wang and Comcare
[2003] AATA 1285
•17 December 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1285
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2000/367
GENERAL ADMINISTRATIVE DIVISION ) Re YI JIA WANG Applicant
And
COMCARE
Respondent
DECISION
Tribunal Dr J Campbell, Member Date17 December 2003
PlaceSydney
Decision The Tribunal affirms the decision under review.
[Sgd] Dr J Campbell, Member
CATCHWORDS
Workers' Compensation - injury to lower back at work - second injury to lower back at work with different employer - three days later - pre-existing lumbar disc disease - permanent impairment - attribution - assessment
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, sections 4, 24, 27.
REASONS FOR DECISION
17 December 2003 Dr J Campbell, Member 1. The decision under review in this matter is the reconsideration decision of Comcare (“the Respondent”) dated 17 February 2000. In that decision Comcare determined that Mr Wang (“the Applicant”) was not entitled to the payment of compensation for permanent impairment arising from an injury to his back at work on 16 October 1997. Mr Wang considers that that decision is not correct in so far as not awarding him compensation for his permanent impairment. There is no argument between the parties that the request for reconsideration of the determination dated 6 February 1998 was within the statutory time frame, the Applicant’s solicitors having made such a request on 24 February 1998.
2. Mr Wang was involved in an incident at work on 16 October 1997. The employer was the Department of Defence. Mr Wang was involved in a further incident at work in the evening of 19 October 1997. The employer on this occasion was Kleenco Pty Ltd. Mr Wang claims that he suffered an injury to his lower back on both occasions, with the injury nominated in his claim for compensation, dated 30 October 1997, being a prolapsed disc lumbo sacral level. Mr Wang had attended Westmead Hospital in the early morning of 20 October 1997 because of significant low back pain with radiation to his right leg.
3. Comcare denied liability for Mr Wang’s claim on 17 December 1997, believing the condition was a result of injury sustained during private employment. On 6 February 1998 Comcare denied Mr Wang’s claim for permanent impairment. On 22 July 1998 Comcare in a reconsideration decision of the determination of 17 December 1997 accepted liability for a closed period from 16 October 1997 to 19 October 1997. A further claim for permanent impairment for “a bulging disc at L4/5 and cortical thickening of the facet joint margins” was completed by Mr Wang on 17 November 1998, with lodgment occurring on 30 November 1998. Comcare in a reconsideration decision dated 17 February 2000, of the determination dated 6 February 1998 noted that liability had been accepted for total incapacity to 3 April 1998 and partial incapacity thereafter. In the reconsideration decision, Comcare determined that Mr Wang’s claim for permanent impairment compensation be denied.
4. In determining this appeal, the Tribunal is to address the following issues:
· Whether Mr Wang is a reliable and credible witness
· Whether Mr Wang suffered an injury as a consequence of the incident on 16 October 1997
· Whether Mr Wang suffered an injury as a consequence of the incident on 19 October 1997
· Whether Mr Wang suffered from a pre-existing condition of the L4/5 disc
· What was the nature of each injury?
· Is there a permanent impairment?
· What is the attribution of each injury to the permanent impairment?
· What is the assessment of the whole person impairment arising from Mr Wang’s permanent impairment
· Is Mr Wang entitled to compensation pursuant to section 24 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”)?
5. In addressing each of these issues and for the reasons nominated in the remainder of the decision, Mr Wang was considered to have presented a consistent account of events, but did present voluntary muscle guarding during examination of the range of movements. Mr Wang did suffer an injury on both 16 and 19 October 1997. These injuries were an aggravation upon an aggravation of a pre-existing L4/5 disc disease respectively. These two aggravations have resulted in Mr Wang suffering a permanent impairment involving his lumbar spine. There is a further finding that Mr Wang does not have a permanent impairment of his right leg. In considering the issue of attribution the Tribunal has concluded that the first injury contributed less than a 50 per cent quotient to the resultant permanent impairment. In assessing the whole person impairment arising from the permanent impairment of the thoraco lumbar spine, the Tribunal concludes that the appropriate rating is 20 per cent. In the light of these findings the Tribunal concludes that Mr Wang is not entitled to payment of compensation for the permanent impairment affecting his thoraco lumbar spine, as the whole person impairment is assessed at less than ten per cent. Such a finding is made pursuant to section 24(7) of the Act.
BACKGROUND
6. Mr Wang was born on 2 May 1955 in China, educated in China and prior to coming to Australia in June 1990 was employed as an electrical engineer. In Australia Mr Wang was employed in various labouring jobs until 1993 when he commenced with Kleenco, undertaking various cleaning activities. Mr Wang also worked with other cleaning firms, but by August 1997 he was working 24.5 hours a week with Kleenco. In September 1997 Mr Wang commenced further employment with the Department of Defence at Pymble as a cleaner, four days a week, Monday to Thursday, commencing at 8am each day.
7. On 16 October 1997, Mr Wang, while working at Pymble, experienced the sudden onset of pain in the lower back, midline, when lifting a metal bin containing empty bottles in order that he empty the bin into a plastic bag for later disposal. Mr Wang, on experiencing the pain, sat for ten minutes, prior to getting all the bottles into the bag. He then proceeded upstairs where he rested for an hour before recommencing some light cleaning duties, which involved minimal bending. Mr Wang left work because of back pain at 2pm, one hour before the end of his shift, and drove himself home, a distance of some 30 kilometres, with a break in his journey at West Ryde.
8. On arriving home, Mr Wang rested on his bed and was unable to accompany his nephew, Mr Qing Feng Wang (“Fred”) to their work at Kleenco on the evening of 16 October 1997. Mr Wang did not attend any medical practitioners at this time, but did arrange for his daughter to obtain some panadol, which he consumed and later felt a little better. Mr Wang continued to experience pain in his lower back on 17 and 18 October 1997, and by the evening of 19 October felt a little better.
9. On the evening of 19 October 1997, Mr Wang drove his car to work at Kleenco accompanied by his nephew. Mr Wang expected that he would be able to do some light cleaning activities at work. Mr Wang experienced increasing low back pain while entering and exiting the car and when turning his neck while driving. On arrival at work Mr Wang, because of increasing back pain rested on a sofa for an hour..
10. At 8pm on 19 October 1997, Mr Wang noticed a dirty glass door, and in his attempt to clean the door, he fell onto the floor. Mr Wang felt acute pain immediately in his lower back at the same site at which he felt pain following the incident on 16 October 1997 and in the right leg, with the pain extending from the right hip to the right foot. The pain was described as being so painful that Mr Wang was unable to stand and he lay on the floor for ten minutes, before returning to rest on the same sofa, where he remained until 11pm. Mr Wang was helped to his car with his nephew driving him home. Mr Wang on arriving home at 12pm took three panadol, and because of a painful back was unable to sleep. At 5am on 20 October 1997 arrangements were made for Mr Wang to be taken to Westmead Hospital.
11. The Applicant was assessed at Westmead Hospital and a presenting diagnoses of back pain was made. The Applicant was discharged on the same day to the care of his general practitioner, with the Applicant being prescribed bed rest for a week, panadeine forte and indocid.
12. Mr Wang saw his general practitioner, Dr Kwan, on 31 October 1997 because of continuing severe low back pain. Dr Kwan referred the Applicant for physiotherapy and a CT examination on 3 November 1997, which was reported on by Dr David Ho, consultant radiologist, as showing a generalised bulging of the L4/5 disc. Because of a severe relapse of symptoms on 12 November 1997, Dr Kwan referred the Applicant to Dr Sullivan, a consultant orthopaedic surgeon. Dr Sullivan arranged for an MRI examination on 27 January 1998 which was reported by Dr Gomes, consultant radiologist, as demonstrating a posterior central disc bulge with posterior annular tear at the L4/5 disc level, with no encroachment on the neural exit foramina at this level.
13. Mr Wang did not return to any form of work until 5 January 2000 when he commenced light cleaning duties at a bakery shop for 15 hours per week. In April 2000 this was reduced to six to eight hours per week, because of increasing back pain. On 30 July 2000 Mr Wang ceased work at the bakery shop, because his friend, who carried out any heavy lifting for Mr Wang had his work hours changed. Mr Wang did not work again until December 2001, when he commenced driving his wife to various cleaning jobs, and later assisting her in doing light duty cleaning activities as part of his wife’s cleaning duties. In July 2002 Mr Wang became an employee of Websfield Digical Pty Ltd to undertake home cleaning work for ten hours per week over five days. This, at the present time has been reduced to five hours per week.
14. Mr Wang continues to experience low back pain when bending, sneezing, standing or sitting in the one position for half an hour and if lying on his back at night for more than four hours. Mr Wang also continues to experience pain in his lower back which radiates to his right leg, if he bends or sneezes and also experiences some numbness in the right foot. Mr Wang continues to have acupuncture treatment and takes panadol, orudis and tramal at night. Mr Wang also considers his pain at this time not to be as severe as after the first and second incidents.
CONSIDERATION AND FINDINGS
15. In addressing the issues raised by this appeal, the Tribunal has been particular in canvassing the opinions expressed by the many medical practitioners that have become involved. Further, as in a matter such as this the Tribunal has again been reminded by the involved consultants, namely Drs Selby Brown, Bornstein and Benanzio, all consultant orthopaedic surgeons, that the clinical history of events is of critical importance in both determining causation and attribution. Findings at clinical examination, while being reliant upon the co-operation of the examinee, are essentially confirmatory of the expectations as to diagnosis and the nature and extent of any resulting disability gleaned from a careful clinical history.
16. In this matter the Tribunal acknowledges that Mr Wang did not discuss the incident of 19 October 1997 with Dr Conrad (consultant orthopaedic surgeon) for a somewhat aberrant collection of reasons involving advice received from his then solicitor; Dr Kwan (treating General Practitioner) detailed the Applicant as continuing work after the second incident; in his report of 1 April 1999. Further the Tribunal notes Dr Bornstein’s report of 22 April 2002 was lacking in detail as to the relative and relevant effects of each incident in so far as what disabilities the Applicant suffered and what effect each incident had on Mr Wang’s ability to undertake his normal daily and work activities.
17. The Tribunal is satisfied that Mr Wang should not bear responsibility for these apparent inconsistencies. In so stating the Tribunal is mindful that Mr Wang has told a consistent story to many doctors since the events occurred. This story is consistently related in the opinions detailed by Drs Sullivan, Wilding, Rogers, Selby Brown, Benanzio and McGill. The story is also consistent with what Mr Wang told the Tribunal. Accordingly the Tribunal concludes that Mr Wang has detailed a relatively consistent history over time, with any inconsistencies outlined above on balance being due to the reporting doctor (Bornstein, Kwan) or the manner in which the consultation was structured (Dr Conrad).
18. The Tribunal also notes that Dr Bornstein in his report of 22 April 2002, Dr Wilding (consultant orthopaedic surgeon) in his report of 25 February 1999, Dr McGill, a consultant rheumatologist, in his report of 9 November 2000 suggested that as a consequence of the clinical examination, Mr Wang was exhibiting abnormal illness behaviour, a non organic component to his illness and a restricted range of movement far greater than one would expect in the light of the radiological changes respectively. The Tribunal also notes Dr Selby Brown’s comment in his report of 13 December 2002 that Mr Wang’s “ranges of lumbar spinal motion were again noted to be quite marked by restricted (greater than 50 per cent restriction) and to be associated with a moderate degree of voluntary muscle guarding --- Straight leg raising --- was also associated with a moderate degree of voluntary muscle guarding”. This confirmed a finding Dr Selby Brown had detailed in an earlier report of 28 June 2000 in which he found considerable voluntary muscle guarding with both straight leg raising and the demonstrated range of lumbo sacral spinal movements. In his oral evidence Dr Benanzio was of a view that the test of straight leg raising was not necessarily an objective test, and as such he placed little reliance on it.
19. The Tribunal in considering these reports, and having concluded that the Applicant was a consistent historian, further concludes that the Applicant’s actual range of thoraco lumbar spinal movement and straight leg raising has not been detailed. In the Tribunal’s view what has been detailed is a range of movement consistent with what the Applicant has demonstrated, which has been somewhat restricted by his voluntary muscle guarding (apprehension of pain) and or an over demonstration of symptomatology. The Tribunal makes no finding other than to state the true range of movements of the thoraco lumbar spine and the straight leg raising is on balance more likely to be greater than that was detailed by the clinicians.
The Incident of 16 October 1997
20. Mr Wang described the events of 16 October 1997 to the Tribunal. Mr Wang detailed the onset of the sudden pain in the midline of his lower back while lifting a metal rubbish bin containing empty bottles into a plastic bag, Mr Wang also detailed his need to rest for ten minutes before cleaning up and placing the empty bottles in the bag. Mr Wang also detailed his resting for one hour before commencing lighter cleaning duties which did not involve bending. Mr Wang told of his leaving work an hour earlier, his driving home with a stop at West Ryde, his need to rest on arrival home and his consumption of panadol. Mr Wang detailed his inability to work that evening for Kleenco, with his nephew undertaking that activity on his own. Mr Wang also stated that he spent Friday, Saturday and the day of Sunday resting, but with some improvement in his symptoms to the point that he was able to walk around the garden in front of his home on the Friday. Mr Wang stated that by the evening of 19 October 1997 his symptomatology had improved to the point that he was able to drive his nephew to their place of work. The Tribunal notes that Mr Wang reported increased back pain on entry and exit from the car and that rotating his spine while driving also increased his back pain. The Tribunal further notes that on arrival at work Mr Wang had to rest on a sofa for an hour. The Tribunal also notes the entry in Dr Wong’s (resident medical officer at Westmead Hospital) report to the local medical officer dated 28 October 1997 that Mr Wang had mild intermittent back pain following the incident on 16 October 1997, until the onset of severe intermittent back pain following the incident on 19 October 1997. This confirms what is detailed in the Westmead Hospital Clinical Notes.
Incident of 19 October 1997
21. The Tribunal notes the description by Mr Wang of the incident of 19 October 1997 and in particular the sequelae, namely the onset of severe pain in the lower back with radiation to the right leg, his need to lay on the floor, to crawl and rest on the sofa for three hours, his inability to drive home and his inability to sleep that night. Further Mr Wang described his early morning attendance at Westmead Hospital Emergency on 20 October 1997, his treatment with panadeine forte and indocid (Westmead Clinical notes), his subsequent attendance at his general practitioner, Dr Kwan in late October 1997, his referral for a CT scan, physiotherapy and to Dr Sullivan, a consultant orthopaedic surgeon in late January 1998. The Tribunal also notes the absence of any reference to right leg pain in the clinical notes from Westmead and the report of Dr Wong, dated 28 October 1997.
22. The Tribunal notes that Dr Ho, consultant radiologist, reported the CT scan of the lumbar spine dated 3 November 1997 as demonstrating a generalised bulging of the L4/5 disc and cortical thickening of the facet joint margins posteriorly (T6).
23. The Tribunal also notes the report of Dr Gomes, consultant radiologist, of an MRI examination of the lumbar spine dated 27 January 1998. In his report Dr Gomes states that there is a posterior central bulge with a posterior annular tear at the L4/5 disc level, with no encroachment on the neural foramina at this level.
24. In the light of the radiological findings and the opinions of Drs McGill, Bornstein and Benanzio the Tribunal concludes that Mr Wang had asymptomatic degenerative disease at the L4/5 level prior to the incident of 16 October 1997. The Tribunal notes that Mr Wang did report a history of mild intermittent upper back pain to the doctors at Westmead on 20 October 1997 and to Dr Bornstein in April 2002, but the Tribunal draws no inference from this in so far as it relates to the lower back pain.
25. In returning to the incident of 16 October 1997 the Tribunal notes that both Drs Benanzio, Wilding and Dr Giblin considered that the Applicant had suffered a soft tissue injury to the lower back. Dr McGill considered the incident caused an aggravation of the pre-existing degenerative disc at the L4/5 level, with possibly a disc fibre tear. Dr Bornstein in his report of 22 April 2002 considered that Mr Wang had an aggravation of the pre-existing degenerative disease of the L4/5 lumbar disc. Dr Selby Brown considered that Mr Wang had suffered injury to the L4/5 disc as a consequence.
26. The Tribunal having considered all the opinions, concludes that Mr Wang did suffer an injury as a consequence of the incident at work at Pymble on 16 October 1997, in that he suffered an aggravation of a pre-existing degenerative condition of the L/5 lumbar spine, which involved some damage to the L4/5 disc.
27. In addressing the second incident, the Tribunal, in noting that all the specialist opinions suggest that the incident resulted in an aggravation of the first injury of 16 October 1997, concludes that Mr Wang did suffer a further injury as a result of the incident at work on 19 October 1997. In so stating, the Tribunal acknowledges that the second injury aggravated the then existing aggravated degenerative process of the lumbar spine at the L4/5 level, as demonstrated by Mr Wang’s description of the sudden onset of more severe pain with radiation to the right leg and evidence of increased disability in terms of mobility and pain.
28. The Tribunal also notes that there is particular evidence in the Westmead Hospital Clinical Notes for 20 October 1997, and in Dr Wong’s referral letter of 28 October 1997 that right leg pain was not a symptom complained of by Mr Wang at his presentation to Westmead Emergency on 20 October 1997. Also there is a further note in Dr Kwan’s report of 13 July 1999 which details a severe relapse of symptoms occurring on 12 November 1997. While such statements do create a degree of ambiguity as to when the pain in the right leg commenced, the Tribunal does conclude that all the evidence points to commencement after the incident on 19 October 1997.
Issue of Permanent Impairment
29. Section 24(2) of the Act stipulates the following matters which the Tribunal must consider in determining whether an impairment is permanent:
· the duration of the impairment
· the likelihood of improvement in the employee’s condition
· whether the employee has undertaken all reasonable rehabilitation treatment for the impairment
· any other relevant matters.
30. In addressing the lumbar spine impairment the Tribunal in noting the opinion of Drs Benanzio, Bornstein, Giblin, McGill, Selby-Brown and Wilding that Mr Wang has an ongoing impairment in his lumbar spine with evidence suggesting no likelihood of further improvement, despite the passage of time of some years and with continuing ongoing therapy, finds that Mr Wang’s lumbar spine impairment is permanent.
31. In considering the issue of impairment of the right leg, Dr Selby Brown in his report of 13 December 2002 observes that at clinical examination Mr Wang has some altered sensation in parts of the right lower limb but was unable to identify evidence of muscle weakness anywhere in the right lower limb, with mid thigh and mid calf circumferences being equal for both lower limbs and with tendon reflexes being of normal amplitude. Dr Selby-Brown also noted the Applicant’s history of difficulty with prolonged walking and standing and his difficulty with stairs. Dr Selby-Brown considered such findings were consistent with right nerve root irritation at the L4/5 level. Dr Selby-Brown believed Mr Wang had an impairment of the right lower limb.
32. Dr Wilding in his report of 25 February 1998 concludes there is no loss of efficient use of either leg at or above the knee. Dr McGill concludes, in his report of 23 March 1999 that despite the Applicant reporting a history of discomfort when walking upstairs, there was no neurological abnormality in the lower limbs, no evidence of muscle wasting and the radiological studies did not demonstrate any nerve root compression. Dr McGill considered that there was no permanent whole person impairment involving the lower limb. Similarly in both written and oral evidence both Drs Bornstein and Benanzio declined to recognise any impairment of the right lower limb.
33. The Tribunal, despite the Applicant’s history of difficulty with stairs and prolonged walking, and in noting the voluntary muscle guarding demonstrated by the Applicant at clinical examinations, together with the fact that the alteration of sensation in the right lower limb has been observed only by Dr Selby Brown concludes that on the balance of probabilities, Mr Wang has not suffered a permanent impairment involving his right lower limb. In so stating the Tribunal has relied upon the opinion and reasoning of Drs McGill, Bornstein, Benanzio and Wilding. The Tribunal in noting Dr Selby-Brown’s findings of altered sensation in the Applicant’s right lower limb at clinical examination, further notes that such a finding has not been established by any other clinician in this matter, which in itself leads the Tribunal to conclude that such a finding cannot be considered to be a permanent clinical feature at this stage, particularly in the absence of other clinical anomalies being detected in the right lower limb by any of the consultants involved in this matter.
Issue of Attribution
34. The Tribunal, in noting the history and clinical sequelae as described for each incident by the Applicant, has given much consideration to the analysis undertaken by each of the consultants in so far as what contribution each injury has made to the Applicant’s permanent impairment involving the thoraco lumbar spine.
35. Dr Selby-Brown clearly is of the view that each injury has contributed to the permanent impairment with the first injury being the more serious. In his reports of 28 June 2002 and 13 December 2002 Dr Selby-Brown does not attempt to define a percentage contribution, which he again repeated in his oral evidence. Dr Wilding is of the view that there was a 50 per cent contribution by each injury in his report of 25 February 1999. Dr McGill considered that each incident made a 25 per cent contribution with 50 per cent due to constitutional degenerative change in his report of 23 March 1999. Dr Giblin considered that each injury contributed 50 per cent to Mr Wang’s permanent impairment of his thoraco lumbar spine in his report of 16 November 1998. Dr Benanzio, in his report of 24 November 1998, considered that there was a 50 per cent contribution by each injury to the back impairment. In oral evidence, Dr Benanzio, relying on the clinical history of both incidents, as did all the consultants, considered that the second injury was more likely than not to be the more significant injury, with a 40 per cent contribution due to the first injury and 60 per cent from the second injury (transcript 30 November P69/70). Later in the transcript Dr Benanzio reverted to an equal 50 per cent contribution by both injuries. Dr Bornstein detailed a 20 per cent contribution from the first injury and an 80 per cent contribution from the second injury in his oral evidence at page 109 of the transcript of 30 November 2003, citing the development of more serious symptoms, including the development of right lower limb pain as indicating the second injury was far more serious than the first.
36. In considering the material relating to the issues of attribution, the Tribunal is mindful of the significance of the clinical history in this matter – an issue of significant importance as pointed out by the consultants in oral evidence. From the two incidents, the clinical symptomatology and Mr Wang’s resulting disabilities from the two injuries have been clearly detailed earlier in this decision. From such material the Tribunal concludes on the balance of probabilities that the second injury was the more serious injury. In so stating the Tribunal has been mindful of the Applicant’s ability to assume light cleaning duties before driving himself home, his period of rest and partial recovery in the next few days including walking in the garden in front of the house, his driving to work, albeit with some pain on the evening of 19 October 1997, comments recorded in Dr Giblin’s report of 25 May 2001 that the Applicant estimated that his symptoms were 50 per cent better before he commenced to go to work on 19 October 1997, that the pain was much more severe following the second injury and that it increased to “twice as bad”. Further the Tribunal notes the inability of Mr Wang to continue working after the second injury, the inability to drive home, the need to attend the emergency department at Westmead the next morning, the development of more severe pain radiating to his right lower limb and the subsequent clinical history.
37. In finding that the second injury was the more severe injury, the Tribunal has also relied upon the opinions of Drs McGill, Bornstein and in part Dr Benanzio where he states that it is more likely that the second injury was more severe and a 40 per cent to 60 per cent ratio of contribution between first and second injury, concludes that the first injury on the balance of probabilities made less than a 50 per cent contribution to the permanent impairment of the thoraco lumbar spine. In so stating, the Tribunal is mindful that the totality of the available clinical history was placed before Drs Benanzio, Selby-Brown and Bornstein, with Dr Selby-Brown commenting that he has great difficulty in making a decision as to which injury as opposed to both injuries, is responsible for the thoraco lumbar spine permanent impairment (transcript 30 November 2003 page 9). The Tribunal notes that Dr Benanzio altered his opinion in so far as the significance of the second injury and the occurrences of the pain radiation to the right lower limb. Dr Bornstein did not move from his opinion. In relation to the opinions of Drs Giblin and Wilding, the Tribunal is unaware as to the level of clinical history that was available to the two consultants, and as such, while noting their opinions, remains uncertain as to how they arrived at such opinions.
Assessment
38. The Tribunal notes the following assessments of whole person impairment pursuant to table 9.6 of the Impairment Tables in relation to the Thoraco-lumbar spine:
Dr Giblin ten per cent (report of 16 November 1998)
Dr Benanzio 20 per cent (report of 24 November 1998)
Dr Benanzio 20 per cent (report of 20 December 2002)
Dr Wilding ten per cent (report of 25 February 1999)
Dr McGill 20 per cent (report of 23 March 1999)
Dr McGill 20 per cent (report of 9 November 2000)
Dr Selby Brown 20 per cent (report of 28 June 2000)
Dr Bornstein five per cent (report of 22 April 2002)
Dr Bornstein five-ten per cent (oral evidence of 30 November 2003).
39. The Tribunal also notes the earlier comments made by the Tribunal as a consequence of the clinicians comments as to voluntary restriction of movement by the Applicant when spinal movements were assessed. Nevertheless the Tribunal, in noting and so finding that Mr Wang has a loss of more than half of the normal range of movements for the thoraco lumbar spine conclude that the assessment of whole person impairment is 20 per cent pursuant to table 9.6 of the Impairment Table.
40. In relation to the right lower limb, the Tribunal has already concluded that there is no permanent impairment arising to the right lower limb as a consequence of the two injuries and hence any assessment must result in a nil whole person impairment.
Entitlement to Compensation
41. The Tribunal notes the following:
(a)Mr Wang has a 20 per cent whole person impairment arising from the constitutional pre-existing disease of the lumbar disc at the L3/4 level and the two injuries of 16 and 19 October 1997.
(b)With the exception of Drs McGill and Bornstein, all the remaining consultants have indicated a minimal contribution of the pre-existing disease of the lumbar disc and have made no attempt to quantify any contribution, if any to the permanent impairment. The Tribunal notes a two to five per cent contribution by Dr Bornstein, and has not been able to explore as to how the 50 per cent contribution from constitutional degenerative change, suggested by Dr McGill has been derived. The Tribunal, in the light of an absence of any significant prior clinical history suggestion of a low back degenerative process, considers that in the circumstances of this matter an asymptomatic disease has been made symptomatic and the permanent impairment that has occurred is essentially the result of the two injuries.
(c)Mr Wang’s injury of 16 October 1997 has been found by the Tribunal to have contributed less than 50 per cent of the quotient to the defined circumstances arising from the injuries of 16 and 19 October 1997.
42. In the light of what the Tribunal has outlined in the previous paragraph any whole person assessment of the Applicant’s permanent impairment arising from his lower back impairment must be less than ten per cent. As such Mr Wang is not entitled to the payment of compensation for permanent impairment pursuant to section 24(7) as the degree of impairment is less than ten per cent.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J Campbell, Member
Signed: Neil Glaser
AssociateDates of Hearing 30/1/03; 28/10/03; 30/10/03; 3/11/03
Date of Decision 17 December 2003
Counsel for the Applicant G Foster
Solicitor for the Applicant Mary Nygen
Counsel for the Respondent Geoffrey Johnson
Solicitor for the Respondent Colin Hall
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