Whyte and Telstra Corporation Limited - [2002] AATA 405

DECISION AND REASONS FOR DECISION [2002] AATA 405

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2000/1315
  Nº V2001/74
GENERAL ADMINISTRATIVE DIVISION
  Re:         PASCALE WHYTE
  Applicant
  And:       TELSTRA CORPORATION LIMITED
  Respondent

DECISION

Tribunal:       M.J. Carstairs, Member
Date:             29 May 2002
Place:            Melbourne

Decision:The Tribunal sets aside the reviewable decision dated 6 October 2000 affirming a decision dated 23 May 2000 insofar as it relates to left sciatica and large L4/5 disc prolapse and substitutes the decision that the respondent continues to be liable to pay compensation in respect of that condition.
The Tribunal sets aside the reviewable decision dated 10 January 2001 and remits the matter to the respondent to determine the amounts payable under s24 and s27 of the Safety, Rehabilitation and Compensation Act1988 (the Act), in accordance with the finding that the applicant has a whole person impairment of 20% assessed under Table 9.6 of the Guide to the Assessment of the Degree of Permanent Impairment.
The Tribunal orders the respondent to pay the applicant's costs in the proceedings pursuant to s67(9) of the Act.

(sgd) M.J. Carstairs
Member
COMPENSATION – back condition- whether aggravation of injury to back in motor vehicle accident- whether impairment permanent
Safety Rehabilitation and Compensation Act 1988 ss.4, 6, 14, 24
McDonald v Director-General of Social Security (1983) 6 ALD 6
Re O'Maley and Comcare (1997) 48 ALD 300

REASONS FOR DECISION

29 May 2002 M.J. Carstairs, Member

This is a hearing of two applications by Pascale Whyte (the applicant) for review of decisions made by Telstra (the respondent) on 6 October 2000 and 10 January 2001. The first decision affirmed a determination that the applicant was not entitled to compensation for strained neck, left sciatica and large L4-5 disc prolapse with effect from 23 May 2000. The second decision affirmed a determination that the respondent was not liable to pay compensation for permanent impairment under s24 and s27 of the Safety, Rehabilitation and Compensation Act 1988 (the Act).
Mr M. Carey of counsel, instructed by Maurice Blackburn Cashman, represented the applicant. Mr M. Croyle of counsel, instructed by Frenkel Partners, represented the respondent.
The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975, as well as exhibits A1 to A7 for the applicant and R1 to R7 for the respondent.
BACKGROUND
The applicant was born on 28 July 1961. She came to Australia from France in 1989 and married that year. She has since separated from her husband. She has two children, Harley, born on 19 July 1993, and Remy, born on 26 June 1997.
The applicant commenced work with Telstra Research Laboratories in 1994. She is the project leader of a team working with interactive television. She holds a Master of Communications degree from the University of Paris North and has qualifications in Business Studies from Leeds Polytechnic as well as two degrees in Marketing and Commercial Techniques from French universities. The applicant has expertise in computer graphics software and interactive television and has worked previously on productions with Grundy Entertainment in France and Australia.
On 2 February 1998 the applicant was involved in a motor vehicle accident on her way to work. On 25 February 1998 a decision was made to pay compensation to the applicant in respect of strain to a neck and lower back region (T10). Later, other decisions were made under the Act to pay expenses incurred by the applicant for assistance at her home.
The applicant's condition worsened in early 1999. The applicant was admitted to Epworth Hospital on 26 April 1999 and underwent a lumbar discectomy on 24 May 1999 for a severe prolapse of the L4/5 disc.
On 23 May 2000 the respondent decided that it was no longer liable to pay compensation in respect of strained neck, left sciatica and large L4-5 disc prolapse with effect from 23 May 2000 (T66). A delegate affirmed the decision on 6 October 2000 (T70). On 1 November 2000 the applicant sought review by the Tribunal of the decision to cease liability.
The applicant additionally made a claim for permanent impairment in respect of back injury in November 2000. A delegate denied that claim on 14 December 2000 (T76). On 10 January 2001 that decision was affirmed (T78). The applicant also sought review of that decision with the Tribunal on 23 January 2001.
EVIDENCE
The applicant gave evidence that she had sought treatment for back pain in 1996, which she thought might have occurred while water skiing. She also recalled having had some back pain during her first pregnancy but recalled none during her second. She said that she had no other recollections of back pain before the motor vehicle accident in 1998. She said that the incident of back pain in 1996 had settled after a couple of months and she had been free of back pain after it.
The applicant said that she had been a very active and sporting person prior to the motor vehicle accident in February 1998. The motor vehicle which she was driving was hit from behind when stationary and her vehicle was pushed into the car in front. She was shaken but went to work. However, her manager advised her to see a doctor. She accepted that advice and she attended her treating doctor on the same day. She told her doctor she had head, neck and lower back pain.
The applicant said that she took one or two days off work after the accident. She said, however, that in the next few months she did not improve. She said that she saw physiotherapists and attended a sports masseur. She also had Reiki therapy and a Bowen treatment for her back. She said that the back pain did not cease after the accident though it varied in severity. Despite the various treatments and therapies, she said her back pain worsened from February 1998 to May 1998. She said she was able to attend work by ensuring that she obtained enough rest when she was at home.
She said that she was in severe pain at times but did not realise that she could go to a hospital to have her back condition investigated. Under cross-examination she acknowledged that she underwent a CT scan at Epworth Hospital in 1996. The applicant said that prior to the accident she had not suffered headaches, blurred vision, stress-related illness nor had she sought the services of a podiatrist. She later conceded that she had suffered migraines after working with computers and reports tendered showed that she had complaints of blurred vision, stress and headaches, and had attended a podiatrist prior to the motor vehicle accident.
The applicant said that she had been a physically active person, taking part in sports such as tennis, horse riding, and cross-country skiing as well as dancing. After the birth of her two sons she enjoyed engaging in playful physical activity with them. She also exercised daily after the birth of her children to ensure fitness.
The applicant said that her life had changed after the motor vehicle accident. She was unable to engage in physical activity with her children and she has given up all sport and dancing, as well as her hobby of painting, because of back pain. She provided photographic evidence (exhibit A3), that her work area is now fitted with a second computer and raised work-station to enable her to work in a standing position when required by her back condition. She said that she mostly uses the standing position workstation and has done so since her return to work after the discectomy in 1999. She gave her evidence mostly while in a standing position.
The applicant said that after the motor vehicle accident she often worked 9-10 hours per day at computer screen-based work. She said that the long hours worsened her back pain and she had difficulty straightening her back. The applicant said that she developed a cramping sensation in her left leg in early 1999. She said that on 7 April 1999 she experienced blurred vision and was dizzy, and had lower back and leg pain at work. This incident was reported to a Telstra Health and Safety officer at the time (exhibit A4).
On 12 April 1999 the applicant attended Ringwood Magistrates' Court in connection with the 1998 motor vehicle accident. She experienced severe back pain that day at the courthouse after sitting in a chair with a flexible back. Her general practitioner referred her to Epworth Hospital on 26 April 1999. She had some weeks of rest as an inpatient and elected to have a discectomy undertaken by Mr P. Dohrmann, neurosurgeon, in preference to a double lumbar fusion recommended by Mr G. Brazenor, neurosurgeon. She said that three months rest at home, during which time she had to avoid all sitting, followed the surgery. She had assistance at home from her husband at that time, and her mother who came out from France. Telstra also provided home assistance.
In a written report (T24) dated 2 June 1999 Dr J. Wood, the applicant's general practitioner, said that the applicant had first presented with back pain in 1996. But between 1996 and the motor vehicle accident in 1998 the applicant had not raised back problems in consultations with her. Dr Wood stated that a CT scan in 1996 had shown a small central disc protrusion in L4/5 and minimal central disc protrusion in L5/S1. In April 1999 a CT scan which Dr Wood ordered showed a large central disc protrusion of L4/L5 disc and a central disc protrusion of L5/S1 with compression of the thecal sac. Dr Wood stated that, when the applicant presented to her on 2 February 1998 after the motor vehicle accident she diagnosed soft tissue injury.
In a further written report dated 5 September 2000 (T69) Dr Wood wrote, in answer to a question posed by the applicant's solicitor whether the applicant's attendances with her showed a step-up in symptoms after the motor vehicle accident:
Ms. Whyte presented to our surgery on the following dates after the mva.
2/2/98 after the mva she complained of headache and low back pain.
3/2/98 neck and back pain
13/2/98 headaches and low back pain
2/7/98 back pain
5/11/98 painful area on the right thigh
7/11/98 decreased sensation on the right thigh
10/1/99 numbness of the right thigh and calf
23/4/99 flare up again of back pain. She was referred to Mr. Brazenor after a CT scan.
Ms. Whyte also attended the Burke Rd. physiotherapy clinic on the following dates: 2/4/98
6/4/98
9/4/98
She attended Gary Park masseur for massage treatment on the following dates: 15/3/98
26/4/98
27/5/98
23/12/98
3/3/99
4/3/99
Therefore, it is my opinion that the records do support a permanent step up in symptoms after the mva. (T69)
In oral evidence Dr Wood said that she would expect complaint of low back pain during pregnancy if a person has a degenerative back condition of the low back. She said that there was no complaint of back pain with the applicant's second pregnancy in 1996/1997. In cross-examination Dr Wood confirmed that the applicant's first reports of leg problems occurred in November 1998 and that, on 7 April 1999, the clinical notes recorded that the applicant complained of low back pain since the motor vehicle accident and that Dr Wood had recommended physiotherapy.
A written report from Burke Road Physiotherapy (exhibit R6) recorded that the applicant presented on 2 April 1998 with a history of disc damage two years prior, which had resolved. The report then recorded that after the motor vehicle accident, everything started again. Taking AI, had massage etc but can hardly walk.
In a written report dated 19 May 1999 (T15) Mr G. Brazenor, neurosurgeon, stated that the applicant had been admitted to Epworth Hospital on 26 April 1999 for a severe central disc prolapse. He said that the disc prolapse was present in embryonic form on a CT scan performed in 1996, but it was likely that the disc was injured in the accident in 1998. He indicated in that report that he considered that lumbar fusion was required.
Mr Brazenor prepared a further report dated 14 July 2000 (T69). In that report he stated that the applicant had recurrent low back pain and sciatica since 1996 without remembered injury. He said that the applicant had reported to him that after the motor vehicle accident in 1998 her back was immediately worse. Of the 1996 CT scan he said:
If I had seen this scan at that stage I would have told her to wrap herself in cotton wool for the next five years.
Mr Brazenor stated that the later CT scan dated 23 April 1999 showed that the L4/5 had produced a central disc prolapse, of recent origin. He said:
My initial impression was that Ms Whyte had sustained the central disc prolapse at L4/5 approximately three or four weeks before I saw her; and I reserved my conclusions about whether the MVA had indeed resulted in further injury of her back, as the proof of that will reside more in her local doctor records than in any other modality…. She had no scan immediately after the motor vehicle accident in February 1998, and therefore the evidence that she sustained further lumbar disc injury in that accident will depend entirely upon local medical officer records, and whether or not she attended any form of physiotherapy or other therapist. If such records do show persistent problems after the MVA then it will be my opinion that Ms Whyte sustained significant further injury to the L4/5 disc in the accident of 2nd February 1998. (T69)
In a report dated 22 June 2001 (exhibit A1) Mr Brazenor noted a deterioration of the applicant's condition compared with examination a year previously. Mr Brazenor considered that the applicant was suffering the legacy of not having the lumbar fusion when he had earlier recommended it to her in 1999 in preference to the discectomy which she chose. He stated in the written report that after injury, regardless of whether a disc is operated upon or not, the disc deflates gradually and the facet joint behind it may overlap progressively, causing pain. It was his opinion that this was what was happening in the applicant's case. In a further written report dated 30 August 2001 (exhibit A2) Mr Brazenor stated that he was satisfied, having seen the reports of Dr Wood (T14 and T69) that the applicant's L4/5 disc injury occurred in the motor vehicle accident on 2 February 1998.
Mr Brazenor gave oral evidence that the motor vehicle accident was the source of a sea change of symptomatology for the applicant. He said that after a disc is injured, the tear in the annulus of the disc may not be painful but weakness is created, and the internal matter of the disc exudes and may continue to do so for up to two years. At different points in this process, different symptoms will appear, for example, pain down the legs. He said that, in forming an opinion about causation in a particular case, the pattern of a patient's symptoms would be instructive. The general practitioner, he said, was the person in the best position to provide that history and his own view would defer to that of the general practitioner. In cross-examination Mr Brazenor confirmed that the history recorded in the treating doctor's notes would give the best insight into the course of the injury.
In his written report (exhibit A1) Mr Brazenor said that the applicant had a whole person impairment of 20% under Table 9.6 of the Guide to the Assessment of the Degree of Permanent Impairment (the Guide). In oral evidence he said that there was a 50/50 chance that the applicant's symptoms would settle down.
In written reports dated 2 June 1999 (T25), 15 June 1999 (T28), and 12 September 2000 (T71), Mr P J Dohrmann, neurosurgeon, said that findings when he conducted the lumbar discectomy on the applicant were consistent with a large and sequestrated disc prolapse and that large fragments of disc material were removed from the disc space and the exit foramen (T28). After the discectomy the applicant was required to avoid all sitting for the first six weeks however although Mr Dohrmann considered her early response to surgery had been satisfactory, he thought she would continue to suffer episodic back pain in the future. He stated that by October 1999 she was able to return to work four hours per day (T71) and when seen in September 2000 she was working four days per week, which are her full hours.
Mr Dohrmann stated that after the motor vehicle accident in 1998 the applicant had an immediate exacerbation of symptoms and later had been troubled with continuing and worsening back pain and with left sciatica (T28). He commented that while a CT scan in 1996 showed a minor disc lesion the CT scan in 1999 showed a large left L4/5 disc prolapse. He said it was highly probable that the motor vehicle accident in 1998 was responsible for the lumbar disc prolapse. While he acknowledged that the applicant did have a pre-existing lumbar disc lesion, it was minor in nature in contrast to the major prolapse showing on the scan in 1999. He said that had the motor car accident never occurred, it was highly unlikely that Mrs Whyte would have developed the large lumbar disc prolapse nor required surgery (T28).
Mr Dohrmann stated in his written report of 12 September 2000 (T71) that the applicant's condition had stabilised. He said that the applicant had 20% whole person impairment in accordance with Table 9.6 of the Guide because she exhibited a loss of greater than 50% of the normal range of movement of the spine.
In his oral evidence Mr Dohrmann said that he saw the applicant as having an immediate exacerbation of back pain at the time of the motor vehicle accident. However, he said that the accident did not cause an immediate prolapse, as only massive trauma would do that. Nonetheless, the accident, in his view, did aggravate the existing weakness, accelerated the process that was already underway and was a significant factor in the progress of the applicant's back condition. He said that typically this process took months to unfold. He said that while the applicant's case took a little longer than usual, it was not that much longer. Mr Dohrmann said there was no fixed answer to the delay that may occur in an individual case.
In a written report dated 21 December 1999 (T51) Mr D. Chamberlain orthopaedic surgeon, stated that the applicant sustained strains to the neck and lower back in the motor vehicle accident and that:
although making good progress as far as the neck is concerned she has had residual symptoms of low back and left leg pain slowly deteriorating and eventually requiring a discectomy for prolapse…There is some persisting weakness and this may well persist indefinitely.

Mr Chamberlain stated that the lumbar disc prolapse was secondary to lumbar disc degeneration, and on the balance of probability, was due to the accident on 2 February 1998. He stated further that the effect was likely to persist to some extent because of the residuum of the symptoms and disability from the prolapse.

In a written report dated 25 March 2000 (T61) Mr H Schaeffer, consultant neurosurgeon, said that the applicant's condition of degenerative disc disease with herniation was the result of a natural progression of a long established and pre-existing condition. He said that disc herniation essentially has a constitutional origin, resulting from a gradual process of desiccation of the nucleus of the disc over a period of years, and in many instances (he said 40% of cases) this will happen spontaneously. He said that where an injury is suffered the injury acts as an aggravating factor facilitating a final rupture by moving degenerate disc material through the annulus.
In his report Mr Schaeffer said:
I consider that the motor vehicle accident of 2 February 1998 has not any relevance to her current situation. If it did have any relevance she would have developed severe symptoms of sciatica within a few days of that accident and not more than one year later. (T61).

Mr Schaeffer considered that the injury was wholly constitutional in origin and her back would have been the same with or without the accident. Mr Schaeffer stated in his written report that the applicant had undergone the necessary operative treatment and that long-term provision of massage, physiotherapy or exercise was not required. He said that the applicant would be able to increase her working hours to her full-time load. He considered that she had a 5% impairment of her thoraco-lumbar spine (Table 9.6 of the Guide) attributable to degenerative disc disease (exhibit R1).
Under cross-examination Mr Schaeffer said that, while he respected the views of Mr Brazenor and Mr Dohrmann, he did not accept the long period in the applicant's case between the injury and the development of sciatica allowed the inference to be drawn that the motor vehicle accident was causative.
CONSIDERATION OF ISSUES
Section 14 of the Act provides that compensation is to be paid to an employee in respect of injury suffered by an employee, which results in death, incapacity for work, or impairment. Section 4 defines injury as:
(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;

Disease is defined in s4 of the Act as:

(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;

Section 6 of the Act extends the scope of injuries arising from employment to include injuries sustained where an employee was travelling between a place of residence and employment (s6(b)(ii)). It was not disputed between the parties that the motor vehicle accident on 2 February 1998 was an injury of that kind, for which the applicant had received compensation.

Section 19 of the Act provides for payment of compensation for injuries resulting in incapacity. Mr Carey submitted that there were two reviewable decisions before the Tribunal: one ceasing liability and the other denying permanent impairment. He submitted that the question for the Tribunal was whether, when one looks back from the surgery that occurred in 1999, the causation of the surgery could be attributed to the motor vehicle accident in 1998. He submitted that it was acknowledged that the applicant's back at the time of the accident was in a degenerative condition. Her complaints of back pain in 1996 and the evidence of the 1996 CT scan reflected this. However, it was not inevitable that the existing disc degeneration would lead to surgery. He submitted that without the motor vehicle accident the surgery would not have been required.
Mr Carey further submitted that the evidence showed that throughout 1997 there was no record of any complaint of back pain in attendances with Dr Wood. He submitted that, with the amount of lifting to be done by a mother of two young children, the Tribunal could be satisfied that if there had been a serious back problem, it would have showed at that time. However, immediately after the motor vehicle accident, he submitted, the applicant exhibited symptoms. This was an identifiable injury event. The consequences of the motor vehicle accident were the acceleration and progression of extrusion of disc material leading to sciatica. He submitted that this view of the course of the injury was supported by medical evidence from Mr Chamberlain, Mr Brazenor, and Mr Dohrmann.
With regard to the question of permanence, Mr Carey submitted that the Tribunal had to consider whether the impairment would continue indefinitely, and that in the case there was no evidence that the applicant could benefit from further rehabilitative treatment.
Mr Croyle submitted that the respondent was liable only for injury arising out of or in the course of employment. In his submission the applicant injured her disc in 1996 as established by the CT scan at the time. This was not injury in the course of employment. He submitted that the evidence pointed to pathology in the back from 1996 that did resolve. He submitted that at the time of the accident in 1998 there was no objective evidence (apart from complaint of back pain) that suggested the severity of the accident or enabled it to be established objectively whether injury occurred to the discs. Mr Croyle submitted that the applicant was a person prone to exaggeration and that her evidence was coloured by selective attempts to link all her symptoms to the motor vehicle accident.
He submitted that the evidence of Mr Schaeffer was to be preferred on the point that the period between the motor vehicle accident in 1998 and the recurrence of symptoms at the courthouse in April 1999 was too lengthy an interval for a connection to be made with the accident. Mr Croyle relied on the evidence of Mr Schaeffer that sciatic pain would be present immediately after such an accident if injury was severe.
In Mr Croyle's submission the motor vehicle accident caused soft tissue injury which resolved. He submitted that the applicant had a pathological back condition identified in 1996, and on Mr Brazenor's evidence she should have been wrapped in cotton wool from that time. In 1999 the underlying pathology that had remained dormant, resurfaced in circumstances that were not attributable to employment. He submitted that the incident at the courthouse in April 1999 was indisputably the event that caused the extrusion of material from the disc which led to the discectomy operation in May 1999.
Mr Croyle submitted that the pattern of attendances at medical practitioners during 1998 did not show that the applicant was having severe and ongoing problems with her back. He submitted that the applicant was a vague historian who embellished the truth and her evidence should be viewed with caution.
On the question of permanence Mr Croyle submitted that the only evidence about permanence of impairment was the evidence of Mr Brazenor. He submitted that Mr Brazenor had conceded in evidence that it was too early to assess the permanence of the back condition.
In reaching a decision the Tribunal has taken into account the relevant documents, medical reports, oral evidence and submissions before it. The Tribunal is satisfied that the applicant had an existing back condition that was evidenced in the CT scan in 1996 and by her presenting to Dr Wood complaining of back pain in 1996. The Tribunal is satisfied that the applicant recovered from her symptomatic back in 1996 and was without back symptoms during 1997 and early 1998. The Tribunal accepts the evidence of the applicant that she suffered an exacerbation of symptoms after the accident in 1998 and that she continued to be in pain and restricted in mobility after the motor vehicle accident and throughout 1998. Her evidence is supported by the attendances with Dr Wood and other therapists.
The applicant presented a pattern of increasing symptoms after the motor vehicle accident that is relevantly recorded in Dr Wood's clinical notes and in the treatments by masseurs and physiotherapists. While the applicant showed some lapses in her memory and readily attributed many complaints to the motor vehicle accident, the Tribunal is satisfied that she gave honest answers to questions about the effects of the motor vehicle accident on her symptoms during 1998 and 1999. Importantly, her evidence of ongoing symptoms was reflected in attendances at her general practitioner and other medical practitioners. The continuing presence of low back pain is reported to her general practitioner, to the physiotherapist (exhibit R6) and to the Telstra Health and Safety Officer (exhibit A4).
The Tribunal is satisfied on the balance of probabilities that the applicant sustained an aggravation to an existing back condition in the motor vehicle accident on 2 February 1998. This was an injury within the meaning of s4 of the Act as it was an aggravation of a physical injury, being an aggravation that arose out of or in the course of employment. There was no dispute between the parties that the motor vehicle accident occurred within the circumstances covered by s6 of the Act.
The Tribunal accepts the evidence of Mr Brazenor and Mr Dohrmann that in the motor vehicle accident the applicant sustained additional injury to her already injured discs and that this resulted in impairment. The Tribunal does not accept the evidence of Mr Schaeffer that the condition of the applicant's back is due to the merely natural progression of a long established pre-existing condition. The Tribunal accepts the evidence of Mr Brazenor and Mr Dohrmann that the symptoms of sciatica suffered by the applicant occurred within a time frame that allowed the inference that the motor vehicle accident was the occasion of significant further injury to the disc that led to the need for the surgery conducted by Mr Dohrmann and has had ongoing effects. The incident at the courthouse was the last step in a chain of causation that commences with the injury sustained to a degenerative back condition in the motor vehicle accident in 1998.
Under s4 of the Act, the words permanent and impairment are defined as follows:
4(1) In this Act, unless the contrary intention appears:
permanent means likely to continue indefinitely.
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.
The Principles of Assessment at page 3 of the Guide, under the heading Impairment and Non-Economic Loss, state:
Impairment is measured against its effect on personal efficiency in the 'activities of daily living' in comparison with a normal healthy person.
Section 24 of the Act sets out:
24(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.
In regard to permanent impairment, the report of Mr Dohrmann assessed the applicant's back condition at September 2000 (T71) as having stabilised, though she was at risk of ongoing symptoms of back pain and further prolapse. Under Table 9.6 of the Guide, he assessed the applicant at 20% for loss of more than half the normal range of movement of the thoraco-lumbar spine. Mr Brazenor agreed with the assessment of 20% under Table 9.6 (exhibit A1) for loss of greater than 50% range of movement. Earlier, in July 2000, He had offered the opinion that the applicant's condition would not have stabilised until two years after the operation (T69) in May 2001. However, he assessed the impairment figure in July 2000 as 10% under Table 9.6.
The Tribunal prefers the evidence of Mr Dohrmann and Mr Brazenor that the loss of range of movement is greater than 50% and considers that Mr Schaeffer's assessment underestimates the applicant's restrictions. Mr Schaeffer makes it plain in his report (exhibit R1) that he considered that the applicant held her back in an unnecessarily stiff manner and this may account for the discrepancy in the rating that he assigns when compared with that assigned by Mr Brazenor and Mr Dohrmann. The Tribunal prefers the rating assigned by Mr Brazenor and Mr Dohrmann as they have had the opportunity of observing the applicant over a longer period and have been involved in her treatment.
The Tribunal took into account the oral evidence of Mr Brazenor that the applicant has a 50/50 chance of improvement. However, the Tribunal accepts the submission of Mr Carey that the statutory test requires that the Tribunal be satisfied that the condition is likely to continue indefinitely. Considering all the factors as set out in s24(2), the applicant in this case has undertaken all reasonable rehabilitative treatment and has experienced considerable improvement in symptoms for doing so. On Mr Brazenor's assessment, two years after surgery is a sufficient time frame to allow a view to be taken of how the condition had stabilised. Mr Brazenor's report is given two years after the discectomy (exhibit A1). The Tribunal accepts his evidence in the written report and takes into account his oral evidence that there remains a chance of improvement. Applying the test of permanence as set out in McDonald v Director-General of Social Security (1983) 6 ALD 6, and discussed in Re O'Maley and Comcare (1997) 48 ALD 300 it is not necessary to have a settled expectation of permanence, merely that indefinite duration is more likely than foreseeable termination. The Tribunal is reasonably satisfied that the condition is permanent within the meaning of s24 of the Act and the applicant is entitled to have compensation assessed in respect of that impairment taking into account the rating at 20% of the whole person under Table 9.6 of the Guide. The parties agreed that assessment under s27 needed to be remitted to the respondent.
DECISION
The Tribunal sets aside the reviewable decision dated 6 October 2000 affirming a decision dated 23 May 2000 insofar as it relates to left sciatica and large L4/5 disc prolapse and substitutes the decision that the respondent continues to be liable to pay compensation in respect of that condition.
The Tribunal sets aside the reviewable decision dated 10 January 2001 and remits the matter to the respondent to determine the amounts payable under s24 and s27 of the Safety, Rehabilitation and Compensation Act1988 (the Act), in accordance with the finding that the applicant has a whole person impairment of 20% assessed under Table 9.6 of the Guide to the assessment of the degree of permanent impairment.
The Tribunal orders the respondent to pay the applicant's costs in the proceedings pursuant to s67(9) of the Act.
I certify that the fifth-eight [58] preceding paragraphs are a true copy of the reasons for the decision herein of
M.J. Carstairs, Member
(sgd)       Catherine Thomas
              Clerk
Date of Hearing:  20—21 February 2002
Date of Decision:  29 May 2002
Counsel for the applicant:           Mr M. Carey
Solicitor for the applicant:           Messrs Maurice Blackburn Cashman
Counsel for the respondent:        Mr M. Croyle
Solicitor for the respondent:        Messrs Frenkel Partners