West and Comcare - [2002] AATA 586

DECISION AND REASONS FOR DECISION [2002] AATA 586

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2001/438

GENERAL ADMINISTRATIVE DIVISION       )
           Re      Robin West
  Applicant
           And    Comcare
  Respondent

DECISION

Tribunal Mr RP Handley

Date17 July 2002
PlaceSydney

Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent for reconsideration with a direction that the Applicant has suffered a 10% increase in the permanent impairment of his lower back under the Guide to the Assessment of the Degree of Permanent Impairment and is entitled to compensation in respect thereof pursuant to ss 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988.

..............................................
RP Handley
Deputy President
CATCHWORDS
COMCARE – assessment of disability under the Guide to the Assessment of the Degree of Permanent Impairment – the Comcare Guide – necessity to examine the change in impairment – whether change is quantitative or qualitative – necessity to consider whether deterioration may constitute a permanent impairment and not merely a variation or deterioration in existing condition – held that the Applicant's condition was a further impairment – matter remitted to the Respondent to assess the compensation payable in respect of permanent impairment.
Commonwealth Employees' Compensation Act 1930
Compensation (Commonwealth Government Employees) Act 1971
Safety, Rehabilitation and Compensation Act 1988 ss 24, 27
Guide to the Assessment of the Degree of Permanent Impairment
Blackman v Australian Telecommunications Corporation (1990) 12 AAR 11
Brennan v Comcare (1994) 50 FCR 555
Comcare v West (1998) 156 ALR 651
Hoyle v Telstra Corporation Ltd (1997) 75 FCR 390
Re West and Secretary, Department of Defence (AAT 12507, 22 December 1997)

REASONS FOR DECISION

17 July 2002 Mr RP Handley

This is an application by Robin West ("the Applicant") for a review of that part of a decision of a delegate of Comcare ("the Respondent") dated 25 September 2001 which affirmed an earlier decision that the Applicant was not entitled to compensation in respect of the impairment of his lumbar spine.
At the hearing, the Applicant was represented by Jane Godtschalk, of Counsel, and the Respondent was represented by Tom Howe, of Counsel. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals TribunalAct 1975 ("the T Documents") together with the evidence tendered by the parties. By agreement of the parties, no oral evidence was given at the hearing.
Background
The Applicant was born on 11 August 1948 and is aged 53. He commenced service in the Army on 27 July 1966. On 22 October 1968, while at work, he injured his lower back and, on 6 April 1969, lodged a claim for compensation (T3). At the time of injury, the Applicant held the rank of craftsman although he was actually a computer operator. On 23 July 1989, Dr R J Kitchin, Orthopaedic Surgeon, diagnosed the Applicant as suffering from "a lesion of a lumbar intervertebral disc", which, on the balance of probability, was due to the incident on 22 October 1968, the effects of which are permanent (T4). He said the Applicant was to avoid heavy lifting and repetitive bending and was only fit for sedentary work. On 11 August 1969, a delegate of the Commissioner for Employees' Compensation determined that the Applicant's injury - "lesion of a lumbar intervertebral disc", arose out of or in the course of his employment by the Commonwealth (T5).
On 16 January 1970, the Applicant was medically discharged from the Army. He subsequently worked as a Clerical Assistant Grade 1 in the Department of the Army until 6 May 1971 when he resigned. Meanwhile, in May 1970, he underwent a laminectomy. Dr David Roebuck, Orthopaedic Surgeon, who performed the operation, found a "bulging L5/S1 disc on the right" which was excised (T9).
Between May 1971 and 13 November 1972, the Applicant worked in the private sector. He then attended Mt Wilga Rehabilitation Centre and, on 22 August 1973, was found fit to return to work as a computer operator and rehabilitation was terminated. On 8 August 1974, because the Applicant had persistent pain, Dr Roebuck performed a posterior lateral spinal fusion (T9). From 21 April 1975 to 10 March 1982, the Applicant was employed as a clerical assistant with the Department of Employment and Industrial Relations. He was later employed by the Department of Immigration and Ethnic Affairs and by the Department of Aviation.
On 8 March 1984, Dr Alastair Robson, Neurosurgeon, performed a further spinal fusion on the Applicant at L5/S1, the earlier fusion having apparently having been unsuccessful (T16 and T17). On 25 January 1985, Dr Robson reported (T18):
The surgery seems to have been completely successful and he is totally relieved of pain and is solidly fused in the low back.

However, on 11 May 1988, his general practitioner, Dr Michael Kneebone reported (T21):

He still has recurrent back pain, attacks precipitated by minor trauma. I consider that his condition is permanent, as it has now lasted twenty years. Acute episodes can be contained with rest and/or physiotherapy.

On 9 October 1995, the Applicant made a claim for compensation in respect of a permanent injury, namely "lesion of a lumbar intervertebral disc" (T30). On 14 November 1995, the Respondent refused the Applicant's claim for permanent impairment on the ground that the Applicant's back injury dated from 1968 and there was no provision for payment of compensation for permanent impairment for a back injury under the Compensation (Commonwealth Government Employees)Act 1971 ("the 1971 Act") (T33). The Applicant requested a reconsideration of this decision on 28 November 1995 (T34). On 8 May 1996, Dr David Brownbill, Consultant Neurosurgeon, in answering a Specialist Medical Questionnaire (T40), assessed the Applicant as suffering a 15% impairment under Table 9.6 of the Guide to the Assessment of the Degree of Permanent Impairment ("the Comcare Guide"), which impairment became permanent "in approximately 1970", and a 20% impairment under Table 9.5 of the Guide. At that time, Dr Brownbill noted that the Applicant was:
Working full-time as a clerk but needs to avoid activities involving lifting, twisting, bending or prolonged standing or sitting.

On 24 June 1996, the Respondent affirmed the decision of 14 November 1995 (T42). The Applicant lodged an application for a review of this decision by the Tribunal. On 23 October 1997, Dr D A W Finn recommended the retirement of the Applicant on medical grounds (T52).

On 22 December 1997, the Tribunal set aside the decision of 24 June 1996 and remitted the matter to the Respondent for reconsideration with a direction that the Applicant is suffering from a whole person impairment of 28% under the Comcare Guide (T53). This comprised a 20% impairment under Table 9.5 in respect of his legs and a 10% impairment under Table 9.6 in respect of his back. The Tribunal's decision was appealed to the Federal Court. On 4 February 1998, the Applicant retired from the Department of Transport and Regional Development. On 3 February 1998, the Applicant received an interim payment of compensation of $22,525.06 in respect of the permanent impairment of his lower limbs.
On 31 July 1998, the Full Federal Court allowed the appeal, set aside the Tribunal decision and remitted the matter to the Tribunal "to be heard and determined in accordance with law": Comcare v West (1998) 156 ALR 651. On 4 February 1999, the Applicant lodged a written notification with the Tribunal requesting that the application be discontinued or withdrawn. The Tribunal treated this as a dismissal or withdrawal of the application without proceeding to review the decision (T57).
On 4 March 1999, the Military Compensation and Rehabilitation Service ("MCRS") of the Department of Defence determined that the Applicant had suffered a 20% impairment in respect of his lower limbs and that the compensation payable was $37,447.92 (T63). This comprised $22,525.06 under s 24 of the Safety, Rehabilitation and Compensation Act 1988 ("the 1988 Act") and $14,922.86 under s 27 of the Act. Since an interim payment of $22,525.06 had already been made, the balance payable was $14,922.86.
On 24 August 2000, the Applicant completed a further claim, for compensation for impairment in respect of his back and legs (T73). On 28 August 2001, MCRS determined that the Applicant was entitled to further compensation in respect of a 10% increase (to 30% under Table 9.5 of the Comcare Guide) in impairment in respect of his lower limbs (T81). The additional compensation of $21,695.71 comprised $11,648.70 under s 24 of the Act and $10,047.01 under s 27. The determination did not include compensation for impairment of the Applicant's back under Table 9.6 of the Comcare Guide. The Applicant sought a reconsideration of this decision (T82).
On 25 September 2001, MCRS varied the decision of 28 July 2001 to correct an error in the amount of compensation calculated in respect of the increase in impairment in the Applicant's lower limbs (T83). The amount payable was $22,954.05. However, MCRS affirmed that part of the decision which found that the Applicant was not entitled to compensation in respect of the deterioration in his lumbar spine. On 16 October 2001, the Applicant lodged an application for a review of this part of the decision by the Tribunal.
The Applicable Law
At the time of the Applicant's initial injury in 1968 the Commonwealth Employees' CompensationAct 1930 ("the 1930 Act") was in force. This was repealed by the 1971 Act which was in turn repealed and replaced by the 1988 Act which took effect on 1 December 1988.
Both the 1930 and 1971 Acts, while providing for the payment of lump sum compensation in the case, for example, of impairment to the lower limbs, excluded the payment of such compensation in respect of back injuries. The question for the Tribunal, therefore, is whether the Applicant is entitled to compensation under the 1988 Act in respect of the permanent impairment of his lumbar spine.
Section 24 of the 1988 Act provides for the payment of lump sum compensation for injuries resulting in permanent impairment. This section provides relevantly:
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 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.

Section 27 provides for the payment of further lump sum compensation in respect of non-economic loss suffered by an employee as a result of a compensable injury or impairment under s 24. The terms "impairment, "injury" and "permanent" are defined in s 4 of the 1988 Act:
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
injury means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;

permanent means likely to continue indefinitely.

Since the Applicant's initial injury was sustained in 1968, some 20 years before the 1988 Act took effect, the transitional provisions of the 1988 Act apply. Section 124 provides relevantly:

124 Application of Act to pre-existing injuries
(1)Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.
(1A) Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.
(3) A person is not entitled to compensation under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing date, if:
(a) the person received compensation of a lump sum in respect of that impairment or death under the 1912 Act, the 1930 Act or the 1971 Act; or
(b) the person was not entitled to receive compensation of a lump sum in respect of that impairment or death:
(i)where the impairment or death occurred before the commencement of the 1930 Act—under the 1912 Act;
(ii)where the impairment or death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act—under the 1930 Act as in force when the impairment or death occurred; or
(iii) in any other case—under the 1971 Act as in force when the impairment or death occurred

How the relevant provisions of the 1988 Act should be applied in this case was the subject of the Full Federal Court decision in West (supra). The majority of the Court (Merkel J with whose reasons O'Connor J agreed), after an analysis of relevant case law, stated the relevant principles to be applied as follows:
(1)the gradual worsening of a permanent impairment in accordance with its natural progress does not constitute a series of new impairments each giving rise to a separate liability to pay compensation [West (supra) at 668];
(2)where a change in a permanent impairment occurring after the commencing date is such that, quantitatively and qualitatively, it is properly to be characterised as a further or new impairment occurring after the commencing date it is compensable by a lump sum payment under ss 24 and 25 [West at 669];
(3)the nature and extent of the loss of use or malfunction is critical to determining whether an impairment has changed to such an extent that it is a further or new impairment [West at 670].

Merkel J concluded his analysis in West at 670 as follows:

In the present case as a result of their agreed facts the parties gave little or no consideration to the underlying patho-physiological condition that caused the deterioration to the respondent's back or to a precise identification of the nature and extent of the permanent impairment which occurred since the commencement date. The relevant impairment of the respondent, as agreed as at 1 December 1988, was a loss of less than half of normal range of movement of the thoraco-lumbar spine. The subsequent impairment was agreed to be loss of more than half of normal image of movement of the thoraco-lumbar spine. The possible increase in the respondent's impairment can range from slight (eg from forty-nine to fifty one per cent impairment) which would be unlikely to constitute a new impairment, to substantial (eg from five to ninety-nine per cent impairment) which in my view would be likely to constitute a further and different impairment. In the former case it is unlikely that there would be lump sum compensation by reason of s 124(3). In the latter case it is likely that there would be lump sum compensation in respect of the further impairment under ss 24 and 25 which would not be precluded by s 124(3).

For the above reasons, in my view the AAT was unable to determine the issue raised for its determination on the basis of the agreed facts. It follows that the determination made in the respondent's favour by the AAT was made without a proper factual basis for it and the AAT erred in the manner in which it interpreted the relevant statutory provisions and applied the facts to those provisions: see Hope v The Council of the City of Bathurst (1980) 144 CLR 1 at 7 and Spencer v Secretary, Department of Social Security (1998) 154 ALR 489 at 494-495. In these circumstances the appeal must be allowed.

SUBMISSIONS
Applicant

The Applicant submitted that to satisfy the tests laid down by Merkel J, it would appear necessary to establish the following:

The nature and extent of the permanent impairment existing at 1 December 1988;
The underlying patho-physiological condition that caused the deterioration or the nature and extent of the permanent impairment which occurred since the commencement date:
Whether the increase in impairment since the commencement date is a only slight (eg from 49% to 51%) or substantial (eg from 50% to 99%) impairment.

To satisfy s 24(7) of the 1988 Act, there must also have been at least a further 10% impairment, determined in accordance with the Comcare Guide, for compensation to be payable. The Applicant contends that such an increase in impairment constitutes a qualitative and quantitative change. The Applicant referred the Tribunal to the definition of impairment in s 4 of the 1988 Act and to the "Principles of Assessment" set out in the Comcare Guide. In particular, the Principles of Assessment state (at p3):
Impairment is measured against its effect on personal efficiency in the 'activities of daily living' in comparison with a normal healthy person. The measure of 'activities of daily living" is a measure of primary biological and psychosocial function such as standing, moving, feeding and self care.
The "Glossary" for the Guide further explains the 'acitivies of daily living':
Activities of daily living are activities which an individual needs to perform to function in a non-specific environment ie: to live. The measure of activities of daily living is a measure of primary biological and psychosocial function. They are:
Ability to receive and respond to incoming stimuli
Standing
Moving,
Feeding (includes eating but not the preparation of food)
Control of bladder and bowel
Self care (bathing, dressing etc)
Sexual function
Ms Godstchalk submitted there has been a significant deterioration in the Applicant's condition if one compares his condition today with that before 1 December 1988. For example, Dr Robson, in a report dated 6 March 1985 (T20), said, post the 8 March 1984 spinal fusion, the Applicant "is pretty fit and able to do any ordinary things which I can think of". The Applicant was then in full-time employment. In a report dated 18 February 1996 (T45), Dr. Brownbill, Consultant Neurosurgeon, said that the Applicant's back impairment assessed in accordance with Table 9.6 as at 1 December 1988, was probably about 10%. By contrast, in his most recent reported dated 7 March 2002 (R2), Dr Brownbill considered that:
there has been a qualitative and quantitative change (with further reductions in thoraco-lumbar spinal flexion) since the previous examination on 1st December 1998 indicating the different impairment.

Dr Brownbill assessed a 20% whole person impairment under Table 9.6

The Applicant was medically retired early in 1998 because of the deterioration of his condition. Trevor Beswick, an Industrial Psychotherapist, in a report dated 19 September 1997 (T51), found:
Mr West is unable to comfortably bend or stoop or walk without a limp. He is unable to put on his own socks or bend sufficiently to retrieve objects from the floor when dropped. Moving from sitting to a standing position involves additional discomfort and he carefully selects his chair and furniture.

Mr Beswick made recommendations in relation to required modifications to the Applicant's house and car both in this report and a later report dated 26 July 1999 (T64) which summarises the limitations on his daily functions.

Ms Godtschalk said these reports indicate a significant change in the Applicant's condition since 1 December 1988. At that time, the Applicant was capable of undertaking a full-time job, as Dr Robson recognised (for example, T20). By 1997, there had been a significant reduction in the Applicant's ability to function as a normal person. By 1997, the Applicant needed a reaching aid (T51) – nothing like this was needed on 1 December 1988. The Applicant's impairment is a new and different one compared with that pre 1 December 1988 and because the quality of his impairment has changed so significantly, he satisfies Merkel J's tests in West (supra).
Dr Owen White, Neurologist, in a report dated 19 January 1997 (T46), recognises the deterioration in the Applicant's condition, noting that there is "no evidence of exaggeration". In a report dated 5 December 1998 (T55), Dr White assessed the Applicant's impairment under Table 9.6 at 15%. In a report dated 9 November 2001 (A2), Dr White assessed the permanent impairment to the Applicant's low back at 30% under Table 9.6.
Professor Michael Cousins, a specialist in pain management, in a report dated 11 April 2000 (T66), found:
Range of movement of his lumbar spine was in bending forward 20 degrees with almost no movement of his lower lumbar spine. Bending backward was close to zero, and also minimal movement in tilting and twisting both sides.

Ms Godtschalk noted that Professor Cousins' later report of 12 April 2002 (R4) does not contain any assessment under Table 9.6. He does not appear to have experience in making assessments under the Comcare Guide.

By contrast, Dr Brownbill is experienced in making such assessments and has seen the Applicant over a number of years. The Applicant says his findings, set out above, are to be preferred. Dr Brownbill stated (report dated 2 December 1998, T54) that he considered "the radiological evidence of deterioration in Mr West's discs at L3/4 and L4/5 is clinically significant". Dr Brownbill said:
On overwhelming probability the deterioration in Mr West's discs at L3/4 and L4/5 is caused by the fusion at L5/S1.
…given that Mr West's spinal fusion at L5/S1 was performed in March 1984, on probability degenerative changes had commenced in those discs, especially L4/5, as a result of the increased forces applied as a result of required increased mobility following on the L5/S1 fusion...
In my view the degenerative changes to the discs at L3/4 and L4/5 amount to degenerative changes that could be described as characteristic of changes following on treatment by spinal fusion for the L5/S1 disc derangement which had resulted in Mr West's initial impairment.

Clearly, neither Dr Brownbill nor Dr White thinks the change in the Applicant's condition is merely a progression of mechanical pain as Professor Cousins stated.

Ms Godtschalk noted that the Respondent disputes that a 10% change in permanent impairment is qualitative. Yet the legislation, which should be beneficially construed, recognises this is a significant enough change to attract the payment of compensation. The Applicant submits that it is the quality of the Applicant's functioning which has changed. The Applicant has suffered a significant deterioration in function with impact on the activities of daily living which should be compensated under the Act as a new impairment. Ms Godtschalk submitted that the activities of daily living could be referred to in order to demonstrate a person's loss of function in particular situations.
Respondent
Mr Howe, for the Respondent, noted that in Re West and Secretary, Department of Defence (AAT 12507, 22 December 1997), the President, Mathews J, proceeded on the basis that a change in a person's permanent impairment from 10% to 20% represented a significant change. The Full Federal Court in West (supra) said this did not represent good law. Thus, a 10% post 1 December 1988 increase in impairment under Table 9.6 is not decisive of there being a new or significant impairment. The Applicant relies heavily on the difference in the Applicant's activities of daily living pre and post 1 December 1988. The Respondent submits this is not appropriate. Table 9.6 directs attention to a person's range of movement. Moreover, the definition of "impairment" in s 4 of the 1988 Act is narrowly drafted and focuses on "function". This is the meaning to be attributed to "impairment" in s 24.
Mr Howe said while the Applicant contends that no change in a person's underlying patho-physiological condition is required, the Respondent contends this is a critical factor. The Respondent contends there is currently no medical evidence to establish that the Applicant suffers from a new and fresh medical impairment.
Mr Howe referred the Tribunal to the Full Federal Court decision in Hoyle v Telstra Corporation Ltd (1997) 75 FCR 390, where the Court said at 398, that the changes in policy made by the 1988 Act are not sufficient to override the language of ss 124(3) and (4) that an employee whose entitlement has a nexus with a period before 1 December 1988 is not intended to be in a better position in respect of a permanent impairment simply because of the enactment of the 1988 Act and the repeal of the 1971 Act.
The question to be asked in the Applicant's case is, first, whether his back condition is the same condition and significantly worse, or, second, a different condition. For the first to apply, there must have been a substantial qualitative and quantitative change sufficient to take the condition outside the policy of s 124. The issue is whether s 124(3) precludes the payment of compensation. Mr Howe said the Respondent contends that the Applicant is suffering from a single condition
He referred to the judgment of Gummow J in Brennan v Comcare (1994) 50 FCR 555 at 570 – 571, where he approves the comment made by the Full Federal Court in Blackman v Australian Telecommunications Corporation (1990) 12 AAR 11 at 14, to the effect that each time an impairment worsens significantly, this cannot be construed as a new impairment within the meaning of the 1988 Act. Gummow J also noted:
The terms of the legislation are consistent with the imposition of distinct liabilities where an injury results in more than one permanent impairment, and in a particular case those results may be manifested sequentially rather than concurrently.

In the present case, Mr Howe said there is no medical evidence to place the Applicant's condition in such an unusual category. The Respondent says that there has been a gradual worsening of the Applicant's condition over 14 years so that he is now suffering a loss of more than half the normal range of movement.

However, Merkel J summarising the authorities in West (supra) at 668, recognises that a substantial variation or a significant deterioration in a person's permanent impairment may be capable of constituting a permanent impairment "which is different to that which existed prior to the variation or deterioration". This is where the change in the permanent impairment (at 669) is "quantitatively and qualitatively" such that "it is properly to be characterised as a further or new impairment". The Respondent contends that the Applicant's case does not involve such a change.
Merkel J said, at 670, that in his view:
the nature and extent of the loss of use or malfunction [of part of the body or bodily system or function] is critical in determining whether an impairment has changed to such an extent that it is a further or new impairment.
Mr Howe said Merkel J's comments at 670 indicate that the Tribunal must consider:
the underlying patho-physiological condition that caused the deterioration to the respondent's back or to a precise identification of the nature and extent of the permanent impairment which occurred since the commencement date.

The Respondent contends that there has been no change in the patho-physiological condition of the Applicant's back, which accords with the evidence of Dr White and Professor Cousins.

Mr Howe noted that the "Principles of Assessment" set out in the Comcare Guide pick up on the definition of "impairment" in s 4 of the 1988 Act and state that throughout the Guide emphasis is given to loss of function. While many of the Tables include reference to the activities of daily living, Table 9.6 focuses on loss of range of movement in the thoraco-lumbar spine ie on loss of function.
Mr Howe discussed the assessments of loss of range of movement of the Applicant's back made by the various specialists. He said Dr White's assessment of 30% under Table 9.6 – an assessment which should only be made where a person has suffered a "complete loss of movement" – should not be relied on because all the other specialists found the Applicant was capable of some movement: for example, in respect of forward flexion, where 90% is normal, Professor Cousins found 20%, Dr Brownbill 20%, Dr Lark less than half, Dr White 20%.
Mr Howe said the Respondent contends that the Applicant is suffering from the same impairment which has become significantly worse through a slow progression since 1 December 1988, and not from a new, fresh or different impairment. In his report dated 5 May 1998 (T55), Dr White found no significant new pathology. In his report dated 9 November 2001 (A2), he says the Applicant's pain is "due to disruption at the L5/S1 level". Professor Cousins, in his report dated 12 April 2002 (R4), finds no change in the underlying patho-physiology since he last assessed the Applicant. He stated:
I do not believe there is any difference in the underlying basis of his current problem compared to that that existed as of 1 December 1998. Rather there has been some degree of progression of his mechanical pain, partly due to deconditioning as described above.

Professor Cousins recommended that the Applicant attend a cognitive behaviour program, which might assist him in regaining movement in his spine.
APPLICATION OF THE LAW AND FINDINGS

The issue to be determined by the Tribunal is whether the change in the permanent impairment of the Applicant's lumbar spine "is such that quantitatively and qualitatively it is properly to be characterised as a further or new impairment occurring after 1 December 1988 (West (supra) at 669). A "gradual worsening of a permanent impairment in accordance with its natural progress does not constitute a series of new impairments" (West (supra) at 668).
In making this determination, the Tribunal must give consideration to "the underlying patho-physiological condition that caused the deterioration to the respondent's back [in this case the Applicant's back] or to a precise identification of the nature and extent of the permanent impairment" which has occurred since 1 December 1988 (West (supra) at 670). The Tribunal must also take account of the nature and extent of the loss of function in the Applicant's lumbar spine.
As stated above, the Applicant injured his lower back at work on 22 October 1968. In May 1970, after being medically discharged from the Army, he underwent a laminectomy. Dr Roebuck, the Orthopaedic Surgeon who performed the operation, excised a bulging L5/S1 disc on the right" (T9). On 8 August 1974, Dr Roebuck performed a "posterior lateral spinal fusion" because of the Applicant's persisting pain (T9). On 8 March 1984, Dr Robson, a Neurosurgeon, performed a further spinal fusion at L5/S1, the earlier attempt having apparently been unsuccessful (T16 and T17). On 24 January 1985, Dr Robson reported that the surgery had been successful and the vertebrae were "solidly fused" (T18). Dr Robson said the Applicant was "pretty fit and able to do any ordinary things" (report dated 6 March 1985, T20).
In 1988, the Applicant was in full-time employment as a clerk in the Commonwealth Public Service. On 11 May 1988, not long before the 1988 Act took effect on 1 December 1988, the Applicant's General Practitioner, Dr Kneebone, reported that the Applicant still had recurrent pain. Acute episodes were contained with rest and physiotherapy (T21). In a report dated 18 December 1996 (T45), Dr Brownbill, Neurosurgeon, said that the Applicant's back impairment was probably about 10% under Table 9.6 as at 1 December 1988.
The Applicant continued to work full-time as a clerk until June 1997. Thereafter, he appears to have been on sick leave until medically retired on 4 February 1998. The pain experienced by the Applicant seems to have become significantly worse from about mid 1995 (for example, Dr Brownbill, 21 November 1996, T44; Dr White, 19 January 1997, T46). In 1996/1997, the Applicant's permanent impairment under Table 9.6 was assessed at 15% (T45, T46). Since then, there has been a further deterioration in the Applicant's condition. On 6 March 2002, Dr Brownbill assessed the Applicant's back condition as a 20% permanent impairment under Table 9.6 (R2). On 9 November 2001, Dr White made an assessment of 30% (A2). While he did not make an assessment under Table 9.6, Professor Cousins' findings on a physical examination on 12 April 2002, suggest an assessment of 20% (R4):
Range of movement of his lumbar spine was 20 degrees forward flexion with almost no movement of his lower lumbar spine. Backward extension was close to zero, and also there was minimal movement in lateral flexion and twisting to both sides.

The medical reports indicate that the Applicant's increased pain and further limitation of movement is due to degenerative change at the L4/5 level, immediately above the fusion at L5/S1, and to a lesser extent at the L3/4 level. Dr White (19 January 1997, T46) refers to a CT scan of the lumbosacral spine performed in 1995 as showing "bulging and degenerative change at the L4/5 more so than the L3/4 level". Dr Bryan Ashman, Orthopaedic Surgeon (10 July 1997, T47) states:
I am sure this man's symptoms are due to the progression of degeneration at the L4-5 level, immediately above his previous fusion, as well as a contribution from the scar tissue around his lumbo-sacral nerves.
Dr Brownbill (2 December 1998, T54) states:
It is again noted that Discography of 7 March 1984 showed L5S1 degenerative change with the L4/5 disc being normal and that radiological investigation on 24 April 1995 showed posterior disc bulging at L4/5…
Mr West's described increasing back pain is regarded as representing increasing scarring about his lumbar spine following on surgical intervention for treatment of the initial L5/S1 disc derangement and increasing degeneration of lumbar intervertebral discs above that level, especially at L4/5, which has resulted from increased forces to those discs required with the increased mobility at those discs following on the fusion of L5/S1.

Dr Brownbill considered "the radiological evidence of deterioration in Mr West's disc at L3/4 and L4/5 is clinically significant" with the "overwhelming probability" being that this was "caused by the fusion at L5/S1". In his most recent report of 7 March (R2), Dr Brownbill stated:

C.The underlying patho-physiology referred to in earlier reports is regarded as continuing with probable progression in view of the described increasing symptoms (involving degenerative changes in the discs L3-4 and L4-5 with probable scar tissue in and around the nerve roots).
D.On the information provided, the description of symptoms, it is considered there has been a qualitative and quantitative change (with further reduction in thoraco-lumbar spinal flexion) since the previous examination on the 1st December 1998 indicating the different impairment.

By contrast, Professor Cousins (12 April 2003, R4), who placed significant reliance on a MR scan of 7 July 2000, while noting degenerative changes in the L4/5 facet joints, did not consider that there was a significant disc problem at either this level or L3/4.
The Tribunal considers Dr Brownbill's evidence, which is supported by the evidence of Dr White and Dr Ashman, to be more persuasive. The Tribunal finds, relying on this evidence, that the Applicant has suffered clinically significant further degeneration of his lumbar spine, particularly at the L4/5 level as a result of the fusion at L5/S1. The Tribunal finds that the degree of the Applicant's back function is now significantly more restricted than on 1 December 1988, when the Tribunal accepts that the level of permanent impairment attributed to his lower back would have been 10%, such that he is now unable to work and needs extensive aids and medication. In the Tribunal's view, the impairment of his lumbar spine is quantitatively and qualitatively different from what it was at that time. With reference to Table 9.6, his condition has progressed from a 10% impairment on 1 December 1988 to 15% in 1996/1997 to a 20% impairment in 2001/2002. In the Applicant's case, this has not been a gradual worsening and should be treated as a further impairment occurring after 1 December 1988.
Thus, the Tribunal determines that the Applicant should be compensated for a 10% increase in the permanent impairment to his lower back pursuant to s 24 of the 1988 Act and remits the matter to the Respondent to assess the compensation payable both in respect of permanent impairment under s 24 and non-economic loss under s 27.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley.
Signed:         .....................................................................................
  Associate
Date/s of Hearing  24 June 2002
Date of Decision  17 July 2002
Representative for the Applicant              Ms J Godtschalk, Counsel
Representative for the Respondent        Mr T Howe, Counsel

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Citations

West and Comcare [2002] AATA 586

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Comcare v Maida [2002] FCA 1284

Re Filsell and Comcare [2009] AATA 90