Bui and Department of Immigration and Multicultural Affairs [1999] AATA 85 (15 February 1999)

Last Updated: 16 February 1999

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [1999] AATA 29

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N97/875

GENERAL ADMINISTRATIVE DIVISION )

Re MICHELLE KHODR-CHAH

Applicant

And COMCARE

Respondent

DECISION

Tribunal Dr J.D. Campbell

Member

Date 21 January 1999

Place Sydney

Decision The Tribunal makes the following determination:

1. The decision under review is set aside; and

2. In substitution the Applicant is found to have suffered a 19% whole person impairment occasioned out of and during the course of her employment; and

3. The Applicant is entitled to payment of compensation pursuant to Sections 14, 16, 19, 24 and 27 of the Commonwealth Safety Rehabilitation and Compensation Act 1988 ; and

4. Costs are awarded to the Applicant; and

5. The matter is remitted to Comcare for assessment of the amount of compensation.

(Sgd.) John D. Campbell

..............................................

Member

CATCHWORDS

Compensation - Injury - Incapacity, Permanent Impairment, Low Back Pain, Credit of Witness - Multiple Medical Opinions

Commonwealth Safety, Rehabilitation and Compensation Act 1988, ss 14, 16, 19, 24 and 27

REASONS FOR DECISION

21 January 1999 Dr J.D. Campbell

Member

1. Mrs Michelle Khodr-Chah ("the Applicant") in this matter seeks a review of a determination, dated 18 June 1997, made by Comcare ("the Respondent"). This determination ceased the Respondent's liability to pay compensation to the Applicant from 30 June 1997. This determination also amended an earlier determination by the Respondent dated 10 June 1997, which continued the Respondent's liability for payment for Feldenkrais treatment up to 30 August 1997, while discontinuing any liability for other worker's compensation payments from 10 June 1997, as well as rejecting the Applicant's claim for permanent impairment.

2. A hearing was held before the Administrative Appeals Tribunal on 2 and 4 September 1998.

3. The Tribunal had before it the following documents:

T1-T129	Section 37 documents prepared pursuant to Administrative Appeals Tribunal Act 1975
A1	Applicant's Statement of Facts and Contentions 28.7.98
A2	Clinical notes of Dr S.D. Chwah 2.12.91 - 24.8.98
A3	Medical Report of Dr R. Rivett 18.5.93
A4	Medical Report of Dr R. Rivett 6.6.96
A5	Medical Report of Dr R. Rivett 5.3.98
A6	Medical Report of Dr N. Berry 3.3.96
A7	Medical Report of Dr D. Roebuck 31.7.97
A8	Medical Report of Dr C. Browne 28.10.97
A9	Medical Report of Dr C. Browne 13.8.98
A10	File note 27.10.97 relating to telephone conversation from Applicant to her solicitor
R1	Statement of Facts and Contentions of Respondent 28.8.98
R2	Medical Report of Dr J. Chen 16.10.97
R3	Medical Report of Dr J. Chen 27.1.98
R4	Medical Report of Dr N. McGill 6.11.97
R5	Medical Report of Dr N. McGill 15.12.97
R6	Medical Report of Dr J. Olsen 18.5.93
R7	Medical Report of Dr A. Hodgkinson 6.5.93
R8	Video of Applicant
R9	Further Medical Report of Dr N. McGill 21.8.98
R10	X-ray Report of Dr D. Lim 27.11.90
R11	Brimar Investigation Report 26.11.97
R12	Sick leave records of applicant from 17.6.97 until 14.8.98 (2 pages)
R13	Recreation leave record of applicant for period 1.1.95 until 29.7.98

4. Oral evidence was given before the Tribunal by:

Michelle Khodr-Chah - the applicant

Dr C.D. Browne

Dr N.W. McGill

Dr J. Chen

5. The Applicant was represented by Mr L.T. Grey of Counsel. The Respondent was represented by Mr G.T. Johnson of Counsel.

ISSUES

6. Issues in contention before the Tribunal were:

* whether the Applicant has suffered a permanent impairment

* whether the Applicant is entitled to reimbursement of medical expenses

* whether the Applicant is entitled for incapacity payments, where sick leave has been taken in lieu of worker's compensation payments being paid for incapacity.

LEGISLATION

7. The relevant legislation is ss 14, 16, 19, 24 and 27 of the Commonwealth Safety, Rehabilitation and Compensation Act 1988 , 1988.

APPLICANT'S EVIDENCE

8. The Applicant stated that she was born in Lebanon in 1964, migrated to Australia in 1975, completed her higher school certificate in 1981, worked for a year as an interpreter in Australia, with a further year as an interpreter in Beirut, prior to working as a secretary in Beirut between 1983 and 1987. The Applicant stated that on return to Australia in 1987, she worked as a clerk typist for the New South Wales Department of Family and Community Services for a period of two years, prior to commencing with the Department of Employment, Education and Training in February 1989.

9. In December 1989, the Applicant stated that she began to experience low back pain, which she attributed to an erratic air conditioning system, with the temperature hovering around 16 degrees centigrade, and duties as a trainee contact officer, which required her to sit at her desk for eighty per cent of the time.

10. In August 1990, the Applicant stated that she fell down the stairs at the office, when she caught her heel in the plastic strip of the stair. The Applicant estimated that she fell about 11 steps and landed on the landing. The Applicant further stated that at that time she felt dizzy and had a severe headache, while a short time later the pain in her back started to deteriorate. The Applicant stated that prior to the fall down the stairs, the low back pain had been intermittent, and after the fall the pain developed into a constant experience; that the constant pain limited her ability to move around, the amount of time she could sit and/or stand, with the pain increasing when she had to walk up or down stairs; that the constant pain prevented her from continuing in a promotional opportunity, as she was unable to cope with the extra 45-50 minutes driving to the new office.

11. The Applicant stated that at that time she sought treatment from her general practitioner, Dr S.D. Chwah, who prescribed physiotherapy and pain killers, namely digesic and feldene; that in 1991 she was involved in a rehabilitation program; that the back pain remained much the same during 1991, but during 1992 the pain started to radiate into the legs, with a stabbing pain stopping about the knee area and mainly in the right leg. The Applicant stated that the pain radiation was intermittent, and when present for a few days she would experience difficulty with mobility and climbing stairs; that by the end of 1992 she had developed a limp, which got worse in 1993, when she was promoted and had to travel, undertaking home visits in the Liverpool-Ingleburn-Campbelltown area, as well as travelling daily between Ashfield and Liverpool; that this activity caused her much difficulty, so much so that a period of two weeks bed rest was undertaken coupled with a request for reversion to a lower grade and return to the Campsie office.

12. Following proceedings before the Administrative Appeals Tribunal in late 1993, the Applicant stated that as a result of constant low back pain and advice from her doctor, she commenced a reduced program of work (20 hours) and enrolled in a rehabilitation program with the Commonwealth Rehabilitation Service; that between January 1994 and July 1994 there was a graduated return to full-time work activity; that on return to full-time work the pain was worse than ever, with periods of amelioration when undertaking her Feldenkrais sessions or when receiving physiotherapy.

13. In February 1995 the Applicant stated that she commenced work in the Lakemba CES office as a case manager, which involved sitting most of the day and with limited opportunity for movement in the hour long appointment sessions. The Applicant indicated that as a consequence of this regime of activity, her work schedule was reduced to 20 hours per week in March 1995 and during this period of work reduction she felt a little bit better. Nevertheless, by the end of 1995 the Applicant stated that her back condition was worse, with increased pain, increased pain radiation, less intermittent symptomatology and requiring increased medication (nine digesics a day).

14. In January 1996, the Applicant stated her hours were increased to five hours per day, with further increases over the course of the year to 33 hours per week; that by the end of 1996, the pain was more intense, with episodes of pain lasting for two to three weeks at a time; that during the year her case manager duties precluded her from getting up and moving around as she wanted, and she was lucky to get one exercise break in the morning; that her lunch times were taken up with walking for half an hour (limit of walking 30-40 minutes) which tended to help ("unknot me"); that she continued to have problems with stairs.

15. In June 1997, the Applicant indicated that she returned to full duty hours; that in April 1997 she transferred to Centrelink in the grade of ASO4. The Applicant stated that activities in her new employment were continuous and strenuous, allowing little time for breaks and with determined targets necessitating extended hours; that such an activity profile was associated with continuous pain day and night and difficulty in sleeping.

16. Throughout 1998, the Applicant stated that the pace and responsibilities associated with her work have continued, albeit varied because of the volume of work; that the pain in her back had become worse, requiring early departure from work, increased use of rest and her tens machine and constantly on pain medication, consisting of four digesic tablets per day and feldene as required. Further, the Applicant stated that she uses a back brace and a tens machine as well as undertaking Feldenkrais exercises.

17. The Applicant indicated that she did little of the heavy housework in her two bedroom unit, with her brother and mother undertaking most of the normal household activities. Further, the Applicant indicated that shopping was done in bits and pieces and she is accompanied when she does major shopping; that she limits her driving to 20-30 minutes at a time, as she finds the pain level increases and leg power decreases over this time limit; that walking is limited to 30 to 40 minutes; that it is painful to go up and down stairs; that there is difficulty walking up a slightly sloping road; that the pain radiation to her leg occurs every few days as opposed to every few weeks previously.

CROSS-EXAMINATION

18. In response to the Respondent's Counsel, the Applicant indicated that she was promoted to ASO4 in early 1992; that apart from two Saturday mornings in 1997 for which she worked overtime, the remainder of her extended hours were accommodated within flexitime arrangements; that since April 1993 she has been working full-time, successfully undertaken a part-time Bachelor of Arts degree between 1990 and 1995 and in 1996 a post graduate certificate in case management and client services from Deakin University (all with appropriate study leave entitlements); that in early 1998 she underwent a complete hysterectomy; that the pain is in the lower spine, traversing the lower back with radiation into the right buttock, right anterior thigh to the level of the knee, with very little radiation to the left leg; that there had been a history of middle back pain at the level of the seventh thoracic vertebra reported to Dr Chwah on 26 July 1988; that the pain in the low back started at the time she was complaining of the cold air conditioning, and that it became worse after the fall down the stairs, and that if this sequence of events was not nominated in the reports of Doctors Conrad, Lowy and Bornstein prior to earlier proceedings, then she must not have told them; that irrespective of her failure to mention the fall to the aforesaid doctors in 1991, the pain very slowly started to increase after the fall and that she denies trying to attribute the cause of pain to other than facts or circumstances that occurred or existed in the workplace; that she had not had any problems with her lower back prior to the air conditioning in 1989; that any intermittent pain reported to Dr Rivett, and as recorded in Dr Rivett's report of 5 March 1998, related only to the thoracic spine, with lumbar pain intermittently increasing in intensity from a base of continued existence in the lower back since early 1992; that there have been no periods since early 1992 where she has been symptom free in the lower back, although at times the pain in the low back has been minimal; that she does not exaggerate her symptoms; that she does have difficulty mobilising after sitting for long periods; that unreasonable work targets are met at her own physical expense; that she has a deliberate and carefully worked through shopping routine, which involves her parents and brother assisting in many activities, although occasionally she may do a large shopping activity on her own albeit with assistance from employees of Franklins; that her work routine provides minimal opportunities to get up from her desk during the morning and afternoon work activities; that she has taken time off on leave for her back, albeit some three weeks approximately over the last year; that this three weeks was mainly a mixture of flex leave and sick leave.

19. In response to a video shown by the Respondent as to the activities of the Applicant, the Applicant acknowledged her driving a car to a funeral on 18 October 1997; that driving on this and other occasions to Westmead Hospital was in excess of forty minutes; that she was at Riverwood Plaza on the same day shopping, walking down a ramp to her car; that the Applicant and her mother did load shopping bags into the boot of the car; that on return to her home the Applicant was walking without a limp on alighting from her car, and while carrying a shopping bag in each hand; that on another occasion at Rockdale Plaza on 1 November 1997 she walked down a ramp to the car park, loaded bags into the boot of the car and was walking without a limp; that on the following day, at Bankstown Square, she did shop for shoes, visited the Woolworth's Supermarket, but did not appear to be limping during these activities; that everything she had stated in earlier evidence was consistent with what was demonstrated on the video apart from the existence of a limp; that all these activities were undertaken with the existence of low back pain, masked in part by medication and on occasions the Tens machine.

20. In further evidence before the Tribunal, the Applicant indicated that when examined by Dr Chen, Dr Chen when examining her spinal movement of flexion, put her hand on the Applicant's back and pushed down so the Applicant could touch the floor with her hands. The Applicant stated that she requested Dr Chen to desist. Similarly, when examined by Dr McGill, the Applicant stated that he forced rotation of the spine to both the right and to the left. Further she stated that he forced straight leg raising and on both examinations she asked him to stop.

MEDICAL EVIDENCE

21. Dr Chwah, the Applicant's attending general practitioner, records in his clinical notes, Exhibit A2, the attendance of the Applicant at his surgery. From 1991 through to 1998 there is a record of many attendances each year at which the Applicant has complained of low back pain, variable radiation to both right and left thighs and to the right leg. Further complaints of mid thoracic and cervical pain are also recorded. Treatment with analgesics, anti inflammatories, physiotherapy and hydrotherapy is noted. Reference to the use of a Tens machine, as well as the suggestion for particular exercise therapy is recorded in the clinical notes.

DR W.D. BYE

22. Dr Bye, a consultant orthopaedic surgeon, examined the Applicant on 20 December 1990 and in his report of 3 January 1991 (T11), he noted that the Applicant described the onset of low back pain some three months earlier, which she could not relate to any specific injury, but thought it may be attributable to air conditioning in her work situation. Further, Dr Bye records a history of right buttock ache with on rare occasions radiation of pain down the right thigh to the knee region. Further, Dr Bye details the Applicant as stating that she occasionally experiences mid-back ache, with some radiation to her shoulder blades.

23. On examination at this time, Dr Bye noted that the Applicant was able to flex her lumbar spine to the toes, but experienced discomfort on hyperextension and lateral flexion to the left. A CAT Scan of the lumbar spine suggested a central disc bulge at the L4/5 level.

24. Dr Bye concluded that the Applicant's problem is one of a degenerative lumbar disc and recommended weight reduction and a program of exercises.

DR R. RIVETT

25. Dr Rivett, a consultant orthopaedic surgeon, examined the Applicant on 20 June 1991. In his report (T21) dated 11 July 1991, he recorded the Applicant as stating that the pain developed in the low back involving the lumbar spine and both sacro-iliac joints in mid April 1989. The development of pain was recorded as being associated with prolonged periods of sitting for up to ten hours per day for six weeks at work. Dr Rivett records a period of some two weeks off work in mid May at which time she was treated with medication and physiotherapy.

26. Dr Rivett records a history of the Applicant falling down nine stairs in August 1989, and further a history of aching at the front of both thighs for four months prior to his consultation. At examination, Dr Rivett noted some limitation of spinal movements, with straight leg raising being more restricted on the left, together with tenderness over T5-T12 and L3 to S1 vertebrae and both sacro-iliac joints.

27. Dr Rivett considered the Applicant to be suffering from chronic bilateral sacro-iliac joint strain and from lower thoracic and lumbar strain. He recommended manipulative treatment, injections and Feldenkrais exercises.

28. Dr Rivett reviewed the Applicant's condition on 4 March 1992. In his report of 23 March 1992 (T43) he noted an error in relation to the date of the earlier fall, the correct date being August 1990. He noted a history of fluctuating symptoms with bilateral sacro-iliac pain and occasional lumbar pain on most days. At examination, Dr Rivett recorded increasing limitation of spinal movements.

29. Dr Rivett reviewed the Applicant's progress on 14 May 1993 and in his report of 18 May 1993 (Exhibit A3), he noted an increase in lumbar pain, together with on examination further limitation of spinal movements.

30. Dr Rivett further reviewed the Applicant's condition on 24 March 1995, and in his report of 15 September 1995 (T93), he again noted increasing lumbar region pain since resuming full-time work in July 1994. Dr Rivett also records a history of the Applicant dropping held objects from her right hand, as well as numbness when writing. Dr Rivett records similar findings to previous examinations, apart from noting that hypoalgesia was reported throughout almost the whole of the right lower limb.

31. As a consequence, Dr Rivett opined that there may be some psychological overlay involved in the clinical picture, together with sufficient reasonably consistent clinical findings to believe that there are objective problems present in the spine.

32. Dr Rivett undertook a further review on 18 October 1995 (T96) and noted an absence of any psychological overlay together with continuing evidence of low thoracic lumbar and sacro-iliac strain.

33. Dr Rivett reviewed the Applicant's condition on 6 June 1996, and in noting that the Applicant's symptoms had not improved, recommended the wearing of a brace to minimise her symptoms (Exhibit A4).

34. In a further report of 5 March 1998 (Exhibit A5), Dr Rivett states that he had further reviewed the Applicant on 30 October 1997, at which time she complained of intermittent pain in the thoracic and lumbar spine, with some recurrence of intermittent neck pain. It was Dr Rivett's opinion that there is probably some L4 nerve root irritation, a lumbar disc lesion at L4/5, low lumbar ligamentous strain and right sacro-iliac joint strain.

35. As a consequence of his many examinations and more particularly as a result of the examination in late 1995, Dr Rivett considers there to be a loss of 40 per cent of the range of spinal movements, which would equate to a ten per cent whole person impairment.

DR A.H. LOWY

36. Dr Lowy, a consultant physician in occupational medicine, examined the Applicant on 12 September 1991 as a member of a medical examination panel with Dr D. Bornstein. Dr Lowy reports a history of chronic low back pain and leg symptoms and further states that clinical examination on 12 September 1991 demonstrated a normal musculo skeletal system with particular reference to her thoraco-lumbar spine (T28).

DR D. BORNSTEIN

37. Dr Bornstein, a consultant orthopaedic surgeon, examined the Applicant with Dr Lowy on 12 September 1991. His history of the Applicant's condition records no evidence of trauma to the Applicant's back (despite Dr Rivett's report of 11 July 1991 being available to the panel). Dr Bornstein records the Applicant as complaining of pain over both sacro-iliac joints and that on examination the Applicant exhibited a normal range of motion of the thoracic and lumbar spine as well as normal neck motion (T29).

DR P. CONRAD

38. Dr Conrad, a consultant surgeon, examined the Applicant on 25 November 1991. In his report of 26 November 1991 (T35), Dr Conrad noted a history of prolonged periods of sitting in the one position, an onset of feeling pain in her back, which was aggravated by change in temperature from an erratic air conditioning unit. No history of a fall is noted. The pain in the back was increased by bending and/or lifting, and by standing or sitting in the one position for any period of time. Specific exercises were said to relieve the pain. Dr Conrad noted that on examination there was limitation of lumbar spine flexion, with straight leg raising limited to 45 degrees in each leg. Dr Conrad agreed with the diagnosis of back strain made by Dr Rivett.

DR A. HODGKINSON

39. Dr Hodgkinson, a consultant orthopaedic surgeon, examined the Applicant on 4 May 1993. In his report of 6 May 1993 (Exhibit R7), Dr Hodgkinson detailed a history given by the Applicant of pain developing in the lower back associated with sitting for prolonged periods at a desk at work with a phone and a computer. This pain was aggravated by an erratic air conditioning system at work. He further notes a history of a fall down stairs in August 1990.

40. On examination, Dr Hodgkinson noted that the Applicant was overweight, some sensitivity to palpitation at both the mid thoracic and low lumbar regions and an apparent voluntary restriction to certain spinal movements.

41. Dr Hodgkinson concluded that the Applicant was overweight and there was evidence of degenerative disease present in the lower back for some years. Further, Dr Hodgkinson was of the opinion that there was no relation between the Applicant's condition and her employment; that employment was not a contributing factor; that the Applicant's presentation is not a natural presentation of any significant pathology which could be related to the environment of her office; that this complaint is motivated by the Applicant's outlook.

42. In a further examination of the Applicant on 20 May 1997, Dr Hodgkinson noted a history of the Applicant's continuing low back pain which is dull and constant, a constant interscapular pain, a stiffness in the thoracic area, a stabbing pain in the lower back with each walking step and a constant worry about air conditioning.

43. Dr Hodgkinson concluded that in his opinion the Applicant "is demonstrating a serious abnormal illness behaviour. I was unable to find any objective evidence of ongoing significant pathology or restriction of function as described in her statement of complaints.". (T124)

DR J. OLSEN

44. Dr Olsen, a consultant occupational physician, examined the Applicant on 18 May 1993. His report of the same date (Exhibit R6), noted a history of the Applicant's low back pain and its onset and earlier treatment, together with a history of a fall down stairs in August 1990. Dr Olsen noted a history of progressively increasing low back pain, with some radiation to the anterior thighs of both legs; that this pain is aggravated by sitting and is relieved by general mobility; that there are no times when she does not have some degree of pain. Dr Olsen noted, on examination, restriction of forward spinal flexion, spinal extension to 30 degrees and lateral flexion to 30 degrees.

45. Dr Olsen concluded that in his opinion the Applicant has mechanical low back pain and some premature degenerative changes in the spine. It was Dr Olsen's opinion that employment has not had any contribution to the condition other than the fact that the back pain was felt at work.

DR A.P. MILLAR

46. Dr Millar, a consultant physician in occupational medicine, examined the Applicant on 7 April 1997. In his report of 9 April 1997 (T121) he noted a history of the Applicant's gradual onset of mid thoracic and low back pain from December 1989, a fall down stairs in August 1990, and the now constant, but fluctuating in intensity, pain in both sides of the back radiating down the right leg to the right knee. Dr Millar noted, on examination of the back, that extension was limited and painful, flexion to the right and left are both reduced and painful and anterior flexion is possible to the mid shins.

47. Dr Millar concluded that in his opinion the Applicant's present difficulty has arisen from her work; that she suffered an intervertebral disc lesion as a result of the fall, which is the cause of the ongoing symptoms, as is the ongoing work practices.

48. Dr Millar considered the Applicant to have a 10% whole person impairment under Table 9.6 of the Comcare Guide to the Assessment of the Degree of Permanent Impairment. Further, Dr Millar considered there to be a 10% whole person impairment under table 9.5. Dr Millar, in using the combined value table considers the Applicant to have a 19% whole person impairment.

DR N. BERRY

49. Dr Berry, a consultant surgeon, examined the Applicant on 1 March 1996. In his report of 3 March 1996 (Exhibit A6), Dr Berry, noted a history given by the Applicant of gradual onset of low back discomfort associated with intense cold from an air conditioning system, and a fall down some stairs recorded by Dr Berry to have occurred in May 1990. Dr Berry further noted that current symptoms include a constant low back discomfort, with pins and needles in the front of the right thigh down to the knee and a shooting pain down the right leg to the knee, when she tries to walk up steps. Dr Berry further reported that the Applicant cannot sit or stand in one position for any length of time; that she cannot drive for more than 30 to 45 minutes; that her condition is aggravated by working in cold air conditioning areas and that she is unable to sleep for more than four to five hours at night because she gets very stiff.

50. Upon examination of the thoraco-lumbar spine, Dr Berry noted tenderness in the lower thoracic and lower lumbar spine, half the normal range of flexion, a quarter of the normal range of extension and half the normal range of rotation.

51. Dr Berry concluded that in his opinion, the Applicant has had a mechanical derangement of L4-5 and that the symptoms are made worse by a hunched posture and a cold environment at work.

52. Dr Berry considered the Applicant to have a 10% whole person impairment arising from a difficulty with grades and steps under Table 9.5 and a 10% whole person impairment arising from a loss of less than half the normal range of movement under Table 9.6. This, Dr Berry states, equates to a 19% whole person impairment under the Combined Values Table of the Comcare Guide to the Assessment of the Degree of Permanent Impairment.

DR D. ROEBUCK

53. Dr Roebuck, a consultant orthopaedic surgeon, examined the Applicant on 31 July 1997. In his report of the same date (Exhibit A7), Dr Roebuck noted a history given by the Applicant of gradual onset of low back pain in 1989/1990, a fall down stairs in August 1990 and current difficulties of thoracic and low back pain.

54. At examination, Dr Roebuck found tenderness over both sacro iliac joints and a positive rotational test to both these joints.

55. Dr Roebuck concluded that, in his opinion, the Applicant has bilateral sacro iliac joint lesions and this has resulted in her losing half the normal range of movement of her thoraco lumbar spine from associated pain. Further it was his opinion that this arose directly from her fall at work on 9 August 1990. Finally, Dr Roebuck opined that the Applicant had a 15% whole person impairment under Table 9.6 of the Comcare Guide to the Assessment of the Degree of Permanent Impairment, because the Applicant has lost at least half the normal range of movement of the thoraco lumbar spine.

DR M.J. KENNEDY

56. Dr Kennedy, a consultant rehabilitation physician, examined the Applicant on 27 June 1995. In his report of 6 July 1995 (T78), Dr Kennedy noted that the Applicant described the onset of back pain in early 1990 associated with coldness arising from an erratic office air-conditioning unit; that this lower back pain increased as a result of falling down some stairs at the office in August 1990. At the time of the consultation Dr Kennedy noted the Applicant's current symptoms as back pain, constant but varying in intensity, with pain radiating into both legs, right greater than left. Further, he noted that the pain increased by standing or sitting for long periods or cold air-conditioning and is improved by massage or walking.

57. At examination, Dr Kennedy noted that she showed signs of pain behaviour and abnormal illness behaviour; that straight leg raising was limited to 45 degrees bilaterally with associated pain behaviours; that there was a decreased range of movement in the lower back.

58. As a consequence of his consultation Dr Kennedy opined that the Applicant's major diagnosis is chronic pain syndrome, which is not a work related problem.

DR C. BROWNE

59. Dr Browne, a consultant rheumatologist, examined the Applicant on 13 October 1997. In his report of 28 October 1997 (Exhibit A8), Dr Browne noted the Applicant as stating a history of gradual onset of low back pain in late 1989; an exacerbation of low back pain following a fall in August 1990; an increase over the last two years of more severe back pain localised to the right buttock and antero lateral aspect of her right thigh; that the back pain is worsened by sitting and standing and by walking for more than half an hour.

60. In commenting upon radiological investigations, Dr Browne noted that the CT Scan of the lumbar spine dated 11 October 1997 shows a larger right sided L4/5 disc bulge with potential involvement of the exiting nerve root on the right side at that level. At examination, Dr Browne recorded in relation to the lumbar spine, pain and restriction of lateral flexion to the left and right and also restriction of the range of extension. Anterior flexion was reduced by 30%. Painful response to light pressure (allodynia) was evoked over the lower back.

61. As a consequence of his examination, Dr Browne concluded that, in his opinion, the Applicant had a chronic mechanical back pain associated with L4-5 disc prolapse and segmental dysfunction; that the fall on 9 August 1990 was a significant one, after which the Applicant has suffered severe and ongoing back pain with radiological evidence of a disc prolapse at L4-5 and extending over the right side over the seven years following the injury; that the back pain has been aggravated by the prolonged sitting required of her job.

62. At a further review of the Applicant on 3 August 1998, Dr Browne confirmed in his report of 13 August 1998 (Exhibit A9) the continuation of the Applicant's low back disorder, and his diagnostic assessment. Dr Browne considered the Applicant, using Table 14.1 (the Combined Values Tables of the Comcare Guide to the Assessment of the Degree of Permanent Impairment) to have a 19% whole person impairment, arising out of assessments of 10% for each of Tables 9.6 and 9.5.

63. In oral evidence before the Tribunal, Dr Browne confirmed that he had viewed the four CT Scans, with the latest scan dated 11 October 1997 demonstrating a larger right sided L4-5 disc bulge with potential involvement of the exiting nerve root on the right side at that level; that clinical signs demonstrated at examination were consistent with such pathology. Dr Browne again commented on the studies undertaken by Nachemson, who has measured intradiscal pressure under the conditions of varying posture, such as sitting, standing and lying or carrying loads. Nachemson observed that disc pressure is markedly elevated under conditions of prolonged sitting and to a greater extent than that for standing, lying and walking.

64. Dr Browne considered the impairment of the Applicant to be permanent, with assessment under Table 9.6, arising from the Applicant's loss of less than 50% of normal spinal movements, and under Table 9.5, arising from the Applicant's pain occurrence in the right leg on arising from the seated to standing position.

65. In response to questions from the Respondent's Counsel, Dr Browne stated that he had not observed the Applicant limping on either of the two occasions she was seen by him; that he did not observe her limping during the video (Exhibit R8); that temperature and humidity can increase musculo skeletal pain, but would not induce pathology of the spine; that the changes over the repeated CT Scans are consistent with the progression of intervertebral disc degeneration; that minor degenerative changes occurring within the thoracic or cervical spine do not have similar significance to the problem demonstrable at the Applicant's L4-5 level of the lumbar spine; that the fall in August 1990 has initiated the event within the intervertebral disc with progression occurring as a result of the nature and conditions of the Applicant's activities including prolonged sitting, which over a period of years of actually sitting for long periods of time may have an effect in further aggravating an intervertebral disc condition; that there is a variance between his measurement of loss of spinal movements made on 13 October 1997 and those made by Dr McGill on 6 November 1997; that this variance may depend on the level of pain being experienced on the day and what analgesics may have been taken to lessen the pain; that her restriction of back movements is not necessarily fixed.

DR N. MCGILL

66. Dr McGill, a consultant rheumatologist, examined the Applicant on 6 November 1997. In his report of the same date (Exhibit R4), Dr McGill records a clinical history given by the Applicant of low back pain coming on gradually in 1989, the onset of pain being attributed to air conditioning at work. Further, a fall down some stairs at work occurred in August 1990, after which the pain has gradually increased and for which she has received at various times treatments including hydrotherapy, physiotherapy, Feldenkrais exercises, a low back brace, analgesics and anti-inflammatories. At the time of examination the Applicant described her current symptoms to Dr McGill as a constant dull ache in her lower back which is increased by prolonged sitting or standing, and with difficulty in sleeping for more than five hours. The pain causes discomfort in the right thigh, and sometimes the left thigh, with radiation to the right knee. The Applicant also complained of some mid thoracic and cervical pain, the latter improving with the provision of a head set.

67. On examination Dr McGill noted the Applicant demonstrated full flexion and extension of the lumbar spine as well as full lateral flexion in both directions. Spinal rotation was about 90% of normal in both directions. The Applicant was noted as stating that all low back movements caused slight low back discomfort. Similarly, straight leg raising was to 90% with associated low back discomfort.

68. In commenting upon the radiological investigations, Dr McGill noted minimal spondylotic changes at T12/L1 in the CT Scan of 13 October 1997; minimal degenerative changes at L3/4 disc margin in the plain X-ray of the lumbar spine performed on 22 September 1997 and the CT Scan of the lumbar spine performed on 11 October 1997 demonstrated bulging of the L4/5 disc in the region of the intervertebral foramen on the right.

69. Dr McGill concluded that in his opinion the fall of August 1990 had little likelihood of being significant with respect to her symptoms previously or currently. It is Dr McGill's opinion that the demonstrated bulging of the L4/5 disc probably reflects degenerative lumbar disc disease; that her symptoms are based on mild degenerative disease; that her personality was reflected by her defensive tense nature early in the interview; that work activities have not had any greater effect on her back symptoms than normal life activities in any other situation.

70. As a consequence of his examination on 6 November, Dr McGill reported on 15 December 1997 (Exhibit R5) that in his opinion the Applicant has a five per cent whole person impairment under Table 9.6 of the Comcare Guide to the Assessment of the Degree of Permanent Impairment. The assessment arose because of minor restrictions in movement of the thoraco lumbar spine, which are related to constitutional degenerative changes.

71. In a further report of 21 August 1998 (Exhibit R9), Dr McGill opined that the video of the Applicant (Exhibit R8) confirmed his findings that her back movements are essentially normal as there was no evidence of any restriction or loss of fluency of back movement demonstrated by the video.

72. In oral evidence before the Tribunal, Dr McGill stated that he believed that the Applicant probably had mild degenerative lumbar disease and mild thoracic spondylosis. Dr McGill confirmed that, in his opinion, the Applicant did not have pain arising from the sacro iliac joints, as pain would have been reproduced on undertaking particular activities relating to testing for injury to the sacro iliac joints.

73. Dr McGill further commented that the air conditioning may have temporarily increased the low back discomfort; that the history of complaint following the fall in August 1990 was not indicative of a serious injury, as the complaint of pain to her doctors would have occurred much earlier; that he disagreed with Dr Browne's assessment of the serial CT Scans in that if there had been damage to a disc in the fall, the progression of changes over the next 6 months would have been more dramatic, rather than essentially an absence of change between the scans of November 1990 and February 1994. Further, Dr McGill does not believe there is any impairment to be assessed under Table 9.5 of the Comcare guide, as in his opinion there is no reason for her to have difficulty walking up and down stairs.

74. In response to questions from the Applicant's Counsel, Dr McGill stated that a fall as described by the Applicant could produce a back injury, indeed a range of injuries; that a disc injury would be sufficient to cause significant pain within hours of the injury; that the history of pain recorded by Dr Bye is very significant; that if the pain increased within days of the fall and then gradually got worse, then the fall would have been significant; that if the symptoms persisted then the fall was continuing to have an effect; that he did not enquire as to the nature of activities undertaken on the day prior to his examination, nor the amount of medication taken; that similar questions were not asked prior to his assessment of the video.

DR J. CHEN

75. Dr Chen, a consultant in occupational medicine, examined the Applicant on 16 October 1997. In her report of the same date (Exhibit R2), Dr Chen details a history related to her by the Applicant, of low back pain in 1989, which was aggravated by a fall in August 1990; that the back pain markedly increased after the fall and has never completely settled since then; that she has had a variety of treatments, with the Feldenkrais exercises being the most beneficial form of therapy; that her current symptoms are constant low back pain of fluctuating severity which radiates into the front of both thighs, right more than left, and of late into both buttocks; that the low back pain is aggravated by prolonged standing (10-15 minutes), prolonged sitting (exceeding one hour), driving, truncal bending, squatting and lying flat on her back, as well as carrying heavy loads and cold weather.

76. At examination, Dr Chen noted that active truncal flexion was minimally restricted at which point she experienced low back discomfort; that truncal extension was limited to 75% of expected range and accompanied by low back pain at this point; that lateral flexion to the right was unrestricted, although accompanied by pain in the left lumbar region and lateral flexion to the left was marginally restricted by discomfort in the right lumbar region; that truncal rotation was marginally restricted and accompanied by pain in the mid thoracic spine.

77. Dr Chen, as a consequence of her examination, considered that there was no clinical evidence of significant pathology in the lumbar sacral spine and that the L4/5 disc bulging evident in the CT Scan of 11 October 1997 was not clinically significant. Further, Dr Chen considered there to be no evidence of any dysfunction of the sacro iliac joints, and that psychosocial factors may be contributing to her presentation. Dr Chen considered that the Applicant does not have any permanent impairment of the lumbo sacral spine (Exhibit R3).

78. In oral evidence before the Tribunal, Dr Chen stated that the video of the Applicant (Exhibit R8) showed in her opinion the Applicant moving freely without any evidence of being in pain, as well as bending over and demonstrating full truncal flexion without seeming discomforted. In further evidence Dr Chen considered there to be a five per cent whole person impairment under Table 9.6 of the Comcare guide to the Assessment of the Degree of Permanent Impairment. This assessment was predicated on minor restrictions of movements of the thoraco lumbar spine.

79. In response to questions from the Applicant's Counsel, Dr Chen stated that the clinical presentation history and radiological examination could be consistent with an unresolved back injury; that in her examination of the Applicant on 16 October 1997, she did not force the Applicant through an active range of movements; that the term psycho-social factors means that conscious or unconscious factors may be involved.

80. A file note from the Applicant's solicitor (Exhibit A10) indicated that the Applicant rang the solicitor on 27 October 1997, indicating that the Applicant was upset following the appointment with Dr Chen.

SUBMISSIONS

APPLICANT

81. Counsel for the Applicant submitted that the case revolves around the credit of the Applicant, and that in this regard the Applicant's case history, her ambition, her confidence and her intelligence would be incongruent with the voluntary creation of a situation where she would become tainted with a Lebanese back label. A further incongruence exists between her fierce task orientation at work and one where it could be said she was feigning or exaggerating a significant sick role.

82. Further, Counsel submitted that the Tribunal's decision in 1993 reflects the same history of events up to that time as that which has been put to the current Tribunal, and similarly the same medical reports are in evidence. After consideration of all matters placed before the Tribunal in 1993, the Tribunal found that the onset of back pain was caused by the work conditions in 1989/1990, which required extended periods of prolonged sitting. Further, the Tribunal at that time found that the fall down the flight of stairs aggravated the back condition and that aggravation was continuing up to October 1993. Counsel submitted that if the Respondent wished to argue that the aggravation ceased at some date and at the same time a degenerative condition appeared to replace the former condition in an apparently seamless manner, then the Respondent must produce evidence to support their position - evidence which Counsel submits has not been adduced by the Respondent.

83. Further, with the evidence of Dr Browne that episodes of prolonged sitting can be a causative factor in disc disorder, Counsel submits that this medical evidence, despite being given sufficient notice, has in no way been rebutted by the Respondent.

84. Counsel further submitted that the medical evidence of Drs Rivett, Bye, Conrad, Kennedy, Berry, Miller and Browne all demonstrate a gradual deterioration in the range of spinal movements over a period of time of eight years, with a resultant permanent impairment involving both the lumbar spine and difficulty with particular aspects of lower limb activity.

RESPONDENT

85. Counsel for the Respondent submitted that the Applicant's credit was entirely neutral with respect to the question of causation. Further, on other issues, Counsel submitted there were serious matters concerning the Applicant's credit. Consideration of previous Tribunal findings on this issue, in the Respondent's view, cannot be accepted as evidence of the fact, as it stands for nothing more than what was found on that occasion and associated with issues at that time.

86. In furthering the issue of credit disputation, Counsel observed the inconsistency which existed between the evidence of Dr McGill and Dr Chen and that of the Applicant in relation to the issue of forced active movement of the spine. Further, Counsel submitted that the story of the Applicant's limping is an exaggeration and that the evidence of her discomfort is overstated; that the video and statements to Dr Rivett are evidence of this exaggeration, which is further evidenced by Dr Rivett's examination in March 1993 relating to hypoalgesia in the whole of the right lower limb.

CONSIDERATION AND FINDINGS

87. The Tribunal considers the Applicant's credit a central issue in this matter. The Applicant's narration of the history of particular significant events and her description of her symptomology over the many years to many and varied doctors is critical to the proper assessment of this matter.

88. The Tribunal notes that much issue has arisen as to whether there was a fall in August 1990. The Applicant states clearly that there was; Dr Chwah's records indicate specific evidence of an ongoing low back disorder from the stated period; Dr Bye does not record a history of a specific injury in August 1990, but does record a three month history of back pain; Dr Rivett does record a history of a fall in August 1990 in his report of 11 July 1991; Dr Lowy and Dr Bornstein examined the Applicant together in September 1991, with the report of Dr Rivett of 11 July 1991 being available to them and with the history of the Applicant's fall documented in a quotation taken from Dr Rivett's report and placed within p 3 of Dr Lowy's report (T28, p 39). Dr Conrad's report of November 1991 makes no mention of a particular injury to the Applicant, but in his opinion there would appear the inference that he has had access to Dr Rivett's opinion. Drs Hodgkinson, Olsen, Millar, Berry, Roebuck, Kennedy, Browne, McGill and Chen all record a history of a fall in August 1990, although Dr Berry records the date as May 1990.

89. It is the Tribunal's finding of fact that a fall did occur in August 1990. In so finding the Tribunal has considered the medical notations of the many medical practitioners who have been involved in the treatment and assessment of the Applicant, and notes a continuing consistency of record from Dr Chwah, the attending general practitioner, who referred the Applicant to Dr Bye because of low back pain. Dr Bye makes no note of a specific injury, yet notes a history of three months low back pain in December 1990. Thereafter it would appear, that perhaps with the exception of Dr Conrad, all doctors have had access to a history of a fall in August 1990. Where there is an inconsistency arising by the absence of a notation as regards the occurrence of a fall in August 1990, the Tribunal clearly is of the view that no adverse inference could or should be drawn which reflects upon the Applicant's credit, for error or omission in the particular case could rest with the attending practitioner.

THE CLINICAL HISTORY

90. The Applicant has specifically detailed to the Tribunal a clinical history relating to the onset, the fall, the increase in symptomatology, including a constant but variable level of low back pain after the fall, a period of time during which there was the development of radiation of pain to the thighs and during which there was an inability to cope with the activities of a full-time work load. The Applicant has described her current symptomatology, which includes a constant low back pain, of fluctuating intensity with radiation of pain to the anterior aspects of the thighs, right more than left. The radiation was said to cease at the level of the right knee. The Applicant has indicated clearly that at times she has had a limp and the level of pain fluctuates. The Applicant has described difficulty with standing for long periods, walking for long periods, sitting for long periods, driving for long periods, bending, lifting and sleeping for more than five hours. The Applicant has outlined what difficulties her symptomatology places on shopping, walking up and down stairs and undertaking housework, as well as the difficulties that it has caused her in the work place, particularly rising to a standing position after sitting for a prolonged period.

91. The Tribunal, in noting the Applicant's self-described clinical history, observes that the clinical histories documented by the many specialists involved, vary in style and length of documentation. Nevertheless the Tribunal noted a relative constancy of clinical history recorded in the specialists' reports documented over many years. The Tribunal is mindful that a medico-legal assessment may occasion one, and sometimes two, episodes of clinical assessment at a particular point in the legal program of assessment. As such, these assessments rely upon, in terms of clinical history, the Applicant's statements and reports that may be made available from other practitioners.

92. In this matter, the Tribunal has studied the written records of the attending general practitioner, Dr Chwah, and the serial reports of the treating specialist orthopaedic surgeon, Dr Rivett, over many years. The Tribunal is satisfied that the clinical history provided by the Applicant to the Tribunal is consistent with that provided to Dr Chwah and Dr Rivett. Further, the Tribunal is satisfied that the Clinical History recorded by the other medical specialists is also consistent with the Applicant's clinical history related to the Tribunal, in so far as date of consultation and the evolution of the clinical history at that time permit.

93. As a consequence of these considerations, the Tribunal concludes that the Applicant has provided a constant clinical history in so far as it had evolved in time, to all the specialists involved. The Tribunal particularly notes the chronological corroboration of the Applicant's self-related clinical history to the Tribunal and that obtained in the many reviews undertaken by Dr Rivett.

94. In noting the issue between the parties as to the nature and extent of the examination of active movement of the thoraco-lumbar spine of the Applicant by both Drs McGill and Chen, the Tribunal is careful to observe that many of the active movements induced by instruction by both doctors resulted in pain and/or discomfort. It is the Tribunal's finding that nothing more conclusive, than the observation that these examinations caused the Applicant pain and/or discomfort, can be drawn, although it is noted that in Dr Chen's examination all active movements were accompanied by pain/discomfort at the point of restriction.

95. In further assessing the Applicant's credit, the Tribunal considers that the video, while demonstrating a range of activities undertaken by the Applicant on particular days, was not of great assistance to the Tribunal. While noting the activities undertaken, the Tribunal concludes that the video did not demonstrate on the particular days and times of study, a range of activities which were clearly inconsistent with what the Applicant stated she was able to do, nor was there any evidence led as to the quantum of analgesia, use of brace or tens machine, which would have permitted any correlation between activities undertaken and level of medication/treatment.

96. Finally, the Tribunal would wish to address the issue of abnormal illness behaviour, chronic pain syndrome, psychological overlay, allodynia, and psycho-social factors, in so far as it might impinge on the Applicant's credit. These diagnostic assessments have been made by Dr Hodgkinson, Dr Kennedy, Dr Rivett, Dr Browne and Dr Chen respectively. They all arise from the Applicant's responses during examination and clinical assessment by the doctors nominated.

97. In arriving at each of these diagnostic assessments, each medical practitioner is indicating that the Applicant's responses are outside predictable anatomical and physiological responses to injury. That such may occur is not in question, the real issue being whether there is a conscious or unconscious element driving the response. Further it must be noted that an individual's response to ongoing pain and discomfort may vary from time to time depending on both intrinsic and extrinsic factors (e.g. mood, personality, well-being, work pressures, social interaction etc.).

98. The Tribunal in appraising these diagnostic assessments concludes that the Applicant does have chronic pain/discomfort as described and her reaction to this varies. There is evidence that she is sensitive to light touch (allodynia) and that her responses during examinations vary. There is no evidence to suggest that this is other than a variable response arising from a condition causing constant pain/discomfort, which fluctuates in intensity. Certainly there has been no evidence adduced which supports the proposition of conscious manipulation for personal or financial gain.

99. In considering all the matters addressed, the Tribunal finds that the Applicant is a reliable and accurate relater of facts relating to her clinical history in relation to the matter at hand. Further the Tribunal finds the Applicant to be frank and forthright in the issues addressed to her by all parties. The Applicant is articulate, diligent and task orientated and the Tribunal appreciates that in meeting the high performance standards she establishes for herself, she may precipitate elements of conflict both internally for herself and for others at the work situation.

100. Finally the Tribunal concludes that after considering all matters addressed, the credit of the Applicant remains intact.

101. The Tribunal in dealing with the many medical opinions notes that there are essentially three major lines of diagnostic assessment, which are not necessarily mutually exclusive.

102. The first line of diagnostic assessment centres around a degenerative process occurring in both the thoracic and lumbar spine, with particular evidence of disc degeneration at the L4/5 level. In arriving at this diagnostic assessment, the consultants have given consideration to the clinical history, the clinical examination and the diagnostic radiological investigations. Consultants which generally pursued this line of assessment included Dr Bye, Dr Olsen and Dr McGill, who all considered that the degenerative process in the lumbar disc is the cause of her symptoms, with there being little likelihood that previous or current symptoms in the lower back have any relationship to the fall at work in August 1990. Further it was their general opinion that employment had not made any contribution to the degenerative condition.

103. The second strand of opinion generally encompasses an assessment which states that the low back pain and symptoms generally are not related to any organic pathology, and certainly the symptomatology is unrelated to any circumstances in the employment. Within this strand there are two substrands, namely those specialists who essentially found a normal musculo skeletal system at examination. Specialists falling within this substrand of opinion include Dr Lowy, Dr Bornstein and Dr Chen.

104. The alternate substrand within this strand of opinions has its basis in the concept that the Applicant's presentation is not a natural presentation of any significant pathology. Specialists falling within this substrand of opinion include Drs Hodgkinson and Kennedy.

105. The third line of opinion accepts the history as given by the Applicant, notes the radiological evidence of a disc lesion at L4/5 and concludes that there is a lumbar disc lesion at L4/5 with some L4 nerve root irritation together with some ligamentous strain in the low lumbar area. Specialists falling within this line of opinion, include Dr Rivett, Dr Conrad, Dr Miller, Dr Berry and Dr Browne.

106. Dr Roebuck is of a particular view that the low back pain has its origin in lesions of both sacro-iliac joints, which has arisen directly from the fall of August 1990.

107. The Tribunal in considering these three lines of opinion observes that it has already concluded that it accepts the clinical history as related by the Applicant to be an accurate rendition. The Tribunal, in distinguishing between these various sets of opinions acknowledges the clinical history of the Applicant and in particular the developing symptomatology through the years 1989-1998. The Tribunal's understanding of the evolving clinical picture is much assisted by the clinical notes of the treating general practitioner (Dr Chwah) and the almost annual reviews undertaken by the treating orthopaedic surgeon (Dr Rivett). The opinions of Drs Conrad, Miller, Berry and Browne assist the Tribunal in that they both confirm and explain both the symptomatology and causation issues associated with this matter. The Tribunal finds that the cause of the Applicant's low back and thigh and leg symptomatology is a disc lesion at L4/5, with some nerve root irritation. It further concludes that this pathology has arisen as a result of the fall down the stairs in August 1990, and that the symptomatology has increased as a result of further degenerative changes in the L4/5 disc demonstrated in the CT Scan of 11 October 1997.

108. In arriving at this finding, the Tribunal has noted that those specialists who consider the pathology to be degenerative, with this process being constitutional in origin and unrelated in causation to the work place, tend to underplay both the significance of the fall in the causation and have difficulty correlating the evolution of the clinical symptomatology with the underlying organic pathology. The Tribunal, as already indicated, prefers the line of opinion that the fall and its consequences including the evolution of the disc lesion is both consistent with the symptomatology and the underlying organic pathology.

109. In addressing the opinion that the clinical symptomatology is unrelated to any organic pathology, the Tribunal rejects the underlying assumption that there is no underlying significant pathology present in the lumbar spine. Further it would appear that the specialists proposing this opinion are also clearly of the view that the symptoms of which the Applicant complains are more a matter of functional overlay or an individual seeking refuge in an illness role. The Tribunal rejects this assessment, noting that the Applicant has had, and continues to have, a strong work ethic, despite her underlying physical symptoms; and that the Applicant's clinical history is specific in that she experiences constant low back pain which fluctuates in intensity. The latter description could on one view provide an explanation for a variable assessment at what range of active spinal movement pain or discomfort is experienced by the Applicant. Further the Tribunal considers the fluctuation in intensity of the pain to be a significant factor in promoting apprehension on the part of the Applicant, when active spinal movements are being clinically tested.

110. Finally, while noting the opinion of Dr Roebuck, the Tribunal considers his opinion based on his clinical findings to be inconsistent with the opinions of other specialists who have been unable to reproduce his clinical findings at or around the time of his examination or thereafter.

111. In considering the issue of permanent impairment, the Tribunal having concluded that the injury is a work caused injury, accepts the opinions of Drs Rivett, Millar, Berry and Browne that there is a permanent impairment. The Tribunal also notes that Dr McGill considers there to be a permanent impairment to the lumbar spine arising from non work related causes.

112. In accepting that there exists a permanent impairment, the Tribunal, again relying upon specialist opinion referred to in the preceding paragraph (except Dr McGill) notes there are permanent impairments to both lower limb function and to the low back.

113. It is the Tribunal's finding that the Applicant has loss of less than fifty per cent of thoraco lumbar spinal movements. The Tribunal has arrived at this assessment after consideration of the clinical reports of Drs Rivett, Millar, Berry and Browne. This loss of spinal movement assessment equates to 10% whole person impairment under Table 9.6 of the Comcare Guide to the Assessment of the Degree of Permanent Impairment.

114. Further, the Tribunal finds that under Table 9.5 of the same Comcare Guide the Applicant is assessed as having a 10% whole person impairment. Such an assessment is arrived at after considering the Applicant's clinical history and the reports of Dr Rivett, Berry, Millar and Browne, in which they indicate that the Applicant has difficulty with rising to the standing position, prolonged standing and walking and difficulty ascending or descending stairs.

115. Finally the Tribunal, in applying Table 14.1 (Combined Values Tables) of the Comcare Guide, determines that the Applicant has a 19% whole person impairment.

DETERMINATION

116. The Tribunal makes the following determination:

1. The decision under review is set aside; and

2. In substitution the Applicant is found to have suffered a 19% whole person impairment occasioned out of and during the course of her employment; and

3. The Applicant is entitled to payment of compensation pursuant to Sections 14, 16, 19, 24 and 27 of the Commonwealth Safety Rehabilitation and Compensation Act; and

4. Costs are awarded to the Applicant; and

5. The matter is remitted to Comcare for assessment of the amount of compensation.

I certify that this and the 32 preceding pages are a true copy of the decision and reasons for decision herein of Dr J.D. Campbell, Member

Signed: .....................................................................................

Assistant

Date/s of Hearing 2 and 4 September 1998

Date of Decision 21 January 1999

Counsel for the Applicant Mr L.T. Grey

Solicitor for the Applicant Carroll & O'Dea

Counsel for the Respondent Mr G.T. Johnson

Solicitor for the Respondent Australian Government Solicitor