Stewart and Comcare [2003] AATA 27 (15 January 2003)

Last Updated: 29 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 27

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N01/1202

GENERAL ADMINISTRATIVE DIVISION	)
	Re	Patricia Ann STEWART

Applicant

And

Comcare

Respondent

DECISION

Tribunal

Ms N Isenberg, Member

Date 15 January 2003

Place Sydney

Decision

The Administrative Appeals Tribunal affirms the decision under review.

[SGD] Member

ORDER TO AMEND WRITTEN DECISION [2003] AATA 27

Tribunal Ms N Isenberg, Member

Date 23 January 2003

Place Sydney

WHEREAS:

1. the Tribunal released a written decision in this matter, dated 15 January 2003; and

2. it has come to the Tribunal's attention that there was an error in the decision;

3. the Tribunal wishes to amend the written decision so as to rectify the error and wishing to do so with the least cost and inconvenience to the parties, applies the provision of section 43AA of the Administrative Appeals Tribunal Act 1975.

NOW THE TRIBUNAL THEREFOR ORDERS that the reasons for decision be amended to read from paragraph 93 onwards as follows:

93. Applying simple arithmetic the impairment for the conditions, after apportionment is 6% and 8% respectively which, when combined in accordance with Table 14.1, results in a 14% whole person impairment.

94. In all of the circumstances and for the reasons expressed above, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal decides to set aside the decision under review and in substitution therefor, determines that:

1. The Applicant suffers permanent impairment of the back and lower limb arising out of the injury in March 1999. 2. The Respondent is liable to pay the Applicant compensation for permanent impairment pursuant to sections 24 and 27 of the Act. 3. The Applicant suffers from a 14% whole person impairment, pursuant to Table 14.1. 4. The Respondent is liable to pay the Applicant's reasonable costs associated with the application for review. [SGD] Ms N Isenberg Member

CATCHWORDS

Workers' Compensation - two prior accidents - time for apportionment

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 - ss 4, 14, 16, 19, 24, 27, 28(4)

CASE LAW

Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd's Rep 403

Comcare v Amorebieta (1996) 22 AAR 539

Hill and Comcare (AAT 12892, 11 May 1998)

Williams and Australian Postal Corporation (AAT 12695, 11 March 1998)

Mitsilias and Australian Postal Corporation (AAT 10968, 29 May 1996)

Martin and Australian Postal Corporation (AAT 12502, 19 December 1997)

Martin v Australian Postal Corporation [1999] FCA 655

Guide to the Assessment of the Degree of Permanent Impairment, Australian Government Publishing Service, Canberra, 1989.

REASONS FOR DECISION

Ms N Isenberg, Member

DECISION UNDER REVIEW

5. This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by the Applicant, Mrs Patricia Ann Stewart, of a reviewable decision made on 15 February 2001 (T29) and affirmed on 21 May 2001 (T35) that no compensation was payable to Mrs Stewart under sections 24 or 27 of the Safety, Rehabilitation and Compensation Act 1988.

LEGISLATION

6. A decision in this matter requires consideration of the provisions of the Safety, Rehabilitation and Compensation Act 1988 ("the Act").

7. Section 4 of the Act deals with interpretation and of specific relevance to this matter is the definition of "injury" contained within subsection 4(1) of the Act which states:

" "injury" means:

(a) a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or

(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment."

8. Section 14 of the Act deals with compensation for injuries and as relevant states:

"Compensation for injuries

14. (1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

(2) Compensation is not payable in respect of an injury that is intentionally self-inflicted.

(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment."

9. Section 16 of the Act deals with compensation for medical and other expenses and as relevant states:

"Compensation in respect of medical expenses etc.

16. (1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.

(3) For the purposes of subsection (1), the cost of medical treatment shall, in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by the employee to a legally qualified medical practitioner or dentist or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair.

(4) An amount of compensation payable by Comcare under subsection (1) is payable:

(a) to, or in accordance with the directions of, the employee;

(b) if the employee dies before the compensation is paid and without having paid the cost referred to in subsection (1) and another person, not being the legal personal representative of the employee, has paid that cost--to that other person; or

(c) if that cost has not been paid and the employee, or the legal personal representative of the employee, does not make a claim for the compensation--to the person to whom that cost is payable.

(5) Where a person is liable to pay any cost referred to in subsection (1), any amount paid under subsection (4) to the person to whom that cost is payable is, to the extent of the payment, a discharge of the liability of the first-mentioned person.

..."

10. Section 19 of the Act deals with compensation for injuries resulting in incapacity.

11. Section 24 of the Act deals with compensation for injuries resulting in permanent impairment and states:

"Compensation for injuries resulting in permanent impairment

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.

(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.

(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).

(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.

(6) The degree of permanent impairment shall be expressed as a percentage.

(7) Subject to section 25, where Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section.

..."

12. Section 27 of the Act deals with compensation for non-economic loss and states as relevant:

"Compensation for non-economic loss

27. (1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.

(2) The amount of compensation is an amount assessed by Comcare under the formula:

($15,000 x A) + ($15,000 x B)

where:

A is the percentage finally determined by Comcare under section 24 to be the degree of permanent impairment of the employee; and

B is the percentage determined by Comcare under the approved Guide to be the degree of non-economic loss suffered by the employee."

ISSUES

13. The issues before the Tribunal were:

* Whether the Applicant suffers any permanent impairment of the back arising out of the injury on 17 March 1999.

* Whether the Respondent is liable to pay compensation to the Applicant pursuant to section 24 and section 27 of the Act.

* Whether the Applicant suffers from 10% whole person impairment pursuant to Table 9.6.

BACKGROUND

14. The Applicant is a 53 year old woman who was, in early-mid 1999, employed by the Australian Bureau of Statistics (" the ABS") as a casual interviewer.

15. The Applicant lodged a claim for compensation dated 14 May 1999 (PT6) as a result of an old back injury which she says was aggravated whilst unloading a heavy bag of ABS documents from the boot of her car on 17 March 1999.

16. Liability was accepted on the basis of an aggravation of lumbar sprain for a closed period up to and including 11 August 1999 (T10 - T11).

17. The Applicant completed an Accident/Incident report on 15 April 1999 (T3) in relation to "strained back/ pain in back" which occurred on 16 March 1999 when she was unloading a bag of documents from her car boot whilst staying in a motel in Forbes.

APPEARANCES

18. A hearing was held before the Tribunal on 12 December 2002 at which the Applicant was represented by Ms K Sibley of counsel and the Respondent was represented by Ms L Walker of counsel.

EVIDENCE: DOCUMENTS

19. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), which the Tribunal took into evidence.

20. In addition, the following documents were tendered:

Exhibit	Description	Date
A1	Applicant's Statement of Facts and Contentions
A2	3 Reports of Dr Ian Pike Orthopaedic Surgeon	27 May 1983; 8 June 1983; 8 July 1983
A3	Dr C Donohoo	6 May 1983
A4	2 Reports of Dr J Scougall	14 May 2002; 12 September 2002
A5	Report of Dr B Hammond	19 December 1991
R1	Email from Terri Blanch	7 August 2001
R2	Report of Nick Thompson	31 May 1999
R3	Report of Nick Thompson	2 June1999
R4	Accident/Incident Report Form	15 April 1999
R5	Records of Dr Boa
R6	Radiology Report of Dr Wong	3 October 1991
R7	Report of Dr B Hammond	17 October 1991
R8	C.T Report of Dr W Kos	22 October 1991
R9	Report of Dr B Hammond	24 October 1991
R10	Report of Dr H Marsden	13 November 1991
R11	Report of Dr B Hammond	2 December 1991
R12	Report of Dr Hammond	16 January 1992
R13	Report of Dr Ng	26 January 1992
R14	2 letters to Dr I Stratton	28 March 2000; 1 December 2000
R15	Reports of Dr D Maxwell	13 February 2002; 1 November 2002

EVIDENCE: THE APPLICANT

21. The Applicant gave sworn evidence and was cross-examined on behalf of the Respondent. Questions were also put to the Applicant by the Tribunal.

22. The Applicant gave evidence, broadly consistent with the history taken by Dr Scougall in his report of 14 May 2002 (Exhibit A4a) :

Injury, 1982: At work in the year mentioned, when employed by the Probation Parole Board as a Probation Patrol Officer (State Government), she had lost her balance when backing her car, her foot apparently slipping off the brake onto the accelerator. She had backed into a brick wall. She felt shaken but otherwise satisfactory. She reported the incident. She did an interview at Long Bay Gaol, where she was at the time of the incident. She then drove her vehicle back to her office at Parramatta. She continued with her work over the following three or four days but then she woke with troublesome back pain. She did not go to work. She attended the practice of Dr S Y Ng and Dr Koe, Hassell Park. She was certified unfit for work, she had radiological examination for her back and she commenced to take some tablets.

She subsequently had physiotherapy and she remained off work, being treated for back pain and some right leg pain down to the level of the ankle over the following eight to ten months. She then returned to her pre-injury place of work but not to her pre-injury work and hours, still with back and right leg pain. She worked for only one week, finding then that she was unable to continue due to persistence of those symptoms. She subsequently returned to light work, however losing time intermittently, until she was transferred form the Probation Control Board to the NSW Land Council to help to establish the 1983 Land Rights Act. The work was mainly administrative. She was able to manage that work, though with continuing back and right leg symptoms. She remained in that position for 12-18 months without aggravating her back or leg symptoms. She had been seconded to do that particular task, remaining employed by the Probation Patrol Board.

In or about 1984 she transferred to work as a Coordinator employed by the Murawina Mt Druitt Childcare Centre (State Government) doing clerical administrative work only. She had still had back and leg pain when she had commenced that new position. She had been able to manage that work without loss of time until she had had further injury in or about 1991.

Injury, 1991: When employed as a Coordinator by the Murawina Childcare Centre (State Government) she had suffered an aggravation of her low back pain at work when moving a table. Three or four days later the pain became increasingly troublesome and she saw Dr Koe and she was referred to Dr Brian Hammond, Orthopaedic Surgeon, Blacktown. She continued with conservative treatment. She was off work for perhaps the following eight months. She had then resigned from that Centre in January 1992. She had then commenced work as a Trainer employed by the Department of Social Security. She believes that the 1991 episode had aggravated both her back and right leg symptoms. Her general activities had been further limited following that 1991 episode.

Five months later she transferred to work for the Commonwealth Department of Community services and Health as an Aboriginal Services Coordinator (Commonwealth employed).

She had continued working for the last mentioned Commonwealth department over the following three and one-half to four years. She had then resigned. She had not sustained any back injuries in that Commonwealth employed position. She had then gone off work for about three months. She had then been contacted by somebody from the Department of Urban Affairs and Planning (State Government) and she commenced working as a Project Officer. She had worked in that department for 18 months without further aggravation of her back and leg symptoms.

23. In 1998 her husband had a heart attack and she resigned from her job in order to look after him. They relocated to Gulargambone, where they had a two-bedroom unit with an extensive established garden which she maintained. They moved from Gulargambone to Dubbo after about 12 months to be closer to rehabilitative care for her husband. Also, because of his low blood pressure and his diabetes he sometimes needed urgent medical care.

24. In February or March of 1999 she was contacted by someone from the ABS and asked to conduct a pilot of a draft survey for Aboriginal housing providers. As it would only be a few weeks work, she agreed to do it.

25. She was obliged to travel to Tamworth to undergo two to three days of training and she understood this to be in March or April 1999. She was able to undertake the three-hour trip (each way), driving her own car.

26. Her recollection was that the work started straight away and she had to go to Dubbo to collect the vehicle provided for her use to travel to the various country towns nominated by her employer.

27. On the first day (but she could not recall if it was a Monday) she was met by a man from the ABS, Canberra and they travelled in separate cars to Wellington where they interviewed an accountant in the afternoon. They travelled on to Orange where they remained overnight. The next day they saw representatives of the Aboriginal Land Council and later that day the man returned to Canberra. She travelled on to Parkes and then to Forbes to be ready for her first appointment the next day.

28. In the evenings she was to go over the paperwork from the day and ensure it was in order, especially as the forms were ambiguous in some places. She had also been instructed not to leave the papers in the car for privacy reasons.

29. It was while pulling her bag of papers from the rear of the boot of the car that she `felt a pull in (my) lower back', and demonstrated to the Tribunal the left side of her lower back. In cross-examination she described the pain as `very sharp'. On this occasion the pain was `instant' and was similar to that on the occasion she hurt it while lifting the table. She did not seek medical attention at that time. She knew she had Naprosyn at home and that she could go the hospital if the pain was `really severe'.. Her evidence was that she was not in that much pain and she just hoped it would not be as bad `as before'.

30. The next day she attended her appointment in Forbes and travelled on to Peak Hill, although later in her evidence she said that Forbes was the last place of interview. She had a further appointment at Dubbo that day but didn't get to it. She did no further work for the ABS. Her attention was invited in cross-examination to Exhibit R3 wherein the Project Officer had recorded that the accident had occurred on 16 March but that she had continued working until 24 March. She said did not know about that because she did not have her itinerary.

31. She was going to attend the Aboriginal Medical Service in Dubbo to get a prescription for more Naprosyn but there is always a delay in getting in because the doctor is only there three days per week. She stayed with her son who lived in Dubbo and she got in to see Dr Boa `a couple of days later'.. In cross-examination she was shown Dr Boa's medical certificate dated 16 April 1999 (T4/5) in which the doctor had recorded her attendance on 16 April 1999, that is, some weeks after the incident. When shown her claim form (PT6/8) wherein she recorded that she had first sought medical treatment on 16 April 1999 she agreed that her previous recollection of `a couple of days later' was incorrect.

32. Dr Boa had asked her what she had done for her back in the past and she told him that she just rested and took Naprosyn. He said to do the same. He took no further information and did not send her for more investigation. She understood him to be an orthopaedic surgeon as well as a GP.

33. She told her contact at the ABS, Sydney that she was unable to travel and would not be able to continue. Because of the ABS' tight timetable her contact met with her in Dubbo, the same week she thought, and she was asked to return her papers, which she did when she returned home. In cross-examination she said she thought she contacted her supervisor the day after the accident. Her attention was invited to Exhibit R3 in which her supervisor recorded that she had worked until 24 March. She could not recall if she worked until that date. The Tribunal pointed out to the Applicant that her birthday is on 24 March but this also did not assist in her recollections. She conceded she may have contacted him later than the day following the incident, but in the same week. In re-examination she recalled that she met with her supervisor in Dubbo on her birthday.

34. Also in relation to Exhibit R3 she was invited to comment upon her reported claim for 13 days off work. She said this was the period she would have worked had she completed the contract. At the time she agreed to take on the task it was because there was three weeks work involved.

35. `Canberra' sent her a compensation form to complete. She said she did not seek weekly compensation because she did not think she was entitled to anything because she was a casual. Her employment arrangement was that she was only paid for the actual hours worked and she was obliged to keep timesheets of her attendances. She was reimbursed for accommodation and meals. She said she only wanted to protect herself against medical expenses, and it was not until two months afterwards that she claimed.

36. Since that incident her back has been worse than beforehand. She said she has `no strength in (my) back' and that she has lost the strength to `hold (my) body up'. She said that she is unable to do `anything physical' like walking. When shopping she must lean on the trolley and is unable to bend. Getting out of bed is difficult and she must first put a leg out to brace herself. When in the car she has a pillow for her low back. She also has one for each arm otherwise her shoulder blades hurt.

37. She also said that from the time of the accident she has experienced pain in the legs. She said the right leg is worse than the left. In cross-examination she said she could not now recall if she had the pain in her legs prior to the accident. She was asked about the 1983 motor vehicle accident and if she had leg pain then. She said that her only recollection was that she was unable to straighten her back for several days. After the 1991 accident the pain was much the same. She was referred to the report of Dr Hammond dated 17 October 1991 (Exhibit R7) wherein he recorded that she experienced `severe low back pain which radiated into the right leg postero-laterally , including the calf and into the foot'.. She said that she had forgotten about that, but, in any event, the pain was now `profound'. She was also referred to the report of Dr Scougall dated 14 May 2002 wherein he recorded 'the pain in her left leg is felt in the buttock and back of the thigh to the knee but not below that level. That pain has developed only in the past few months...'.. She said the pain is ongoing and its intensity depends on what she is doing. She added that the pain in the left leg sometimes goes down to her foot. In re-examination she agreed that she had told Dr Stratton in April 2000 (T18/27) that she experienced `fairly constant left-sided lower lumbar and buttock pain with intermittent paraesthesia in the left foot...'. On the basis of the information from Dr Stratton`s report she said what Dr Scougall had recorded was wrong.

38. She has a lot of problems going down stairs - getting shooting pains, mainly in her right hip and occasionally in the left. Going down slopes is also a problem because the pressure on her ankles produces pain in her lower back. If she has to walk any distance her back `heats up' and she goes as far as she can, but she could not specify how far that might be.

39. For the pain she continues to take Naprosyn but tries not to use it because it `rots your stomach'. However she said she was nonetheless `very dependent' on it.

40. Notwithstanding this, she has seen no specialist in relation to her condition, other than for the purposes of medico-legal reports, since she consulted Dr Boa on 16 April 1999. She might see him about four times a year in order to get further prescriptions for Naprosyn. He also gave her sleeping tablets.

41. She has had to get in `aged community care packages' in order to tend her garden and to scrub the bathrooms and do the windows and clean cobwebs. Her daughter does the shopping. Previously she had cared for the garden, done her own cleaning and shopped without assistance.

42. She said her lifestyle has been reduced. She can no longer go to her children's games because she can no longer sit for extended periods. She might go to Aboriginal community meetings where she will be able to choose her own chair and stand up if she prefers. If the meeting is scheduled to last more than half an hour then she chooses not to go at all. In cross-examination she was invited to comment on the notes of Dr Boa (Exhibit R5) that she had attend his surgery only four times in 2000 and on no occasion was it in relation to her back. She said on those occasions she just asked for a script for Naprosyn and there was no discussion about her back. There is plenty in the house as her husband takes it also.

43. The Applicant was asked about her weight and she said that it `gets (me) down'.. She had been advised by Dr Boa to lose weight and had sought a referral about an operation to assist in weight loss. The dietician in Dubbo is booked out till next year.

44. In cross-examination the Applicant was asked a number of questions about precisely when the incident occurred. She was shown a document generated by an officer of the ABS (Exhibit R1) which sought information about the Applicant, who was identified as having been appointed on 1 March 1999, commencing on 15 March with the contract scheduled to conclude on 26 March, with a debrief on 31 March. She could not comment on when, during that period exactly the accident had occurred.

45. She was also referred to the accident report form dated 15 April 1999 (Exhibit R4) in which she had recorded that the accident had occurred on 16 March 1999. She was also referred to Dr Boa's notes where he recorded, on information supplied by her, that the accident occurred on 22 March 1999. She said in evidence that it might have been the 23^rd. The Applicant did not know if these were the dates as she did not have her `itinerary'.. The claim form was lodged `much later' (apparently on 5 July 1999, although completed in 14 May 1999) and hence she did not then know. The Tribunal provided the Applicant with a 1999 calendar but this did not assist in her recollections.

46. She was asked to say which of her three accidents she regarded as the most serious. She said that it was the incident with the ABS because now she has lost all the strength in her back and her lifestyle has changed so markedly. She feels she has been `robbed' of her life. With the others she had recovered over time. She was referred to the report of Dr Scougall dated 14 May 2002 in which he recorded having taken a history from Mrs Stewart that `she relates most of her present disability to the original episode in 1982. The subsequent injuries in 1991 and 1999 contributing, but not to a great extent, to her present impairment'.. She reiterated that it was the effect upon her life following the final accident which had affected her most. In this regard she was invited to comment upon her failure to seek specialist medical treatment notwithstanding that she considered this incident to be the major effect upon her. She said there was nothing that could be done for her. Doctors just say to rest and lose weight. There is also a financial problem in that she is on a carer's pension and she does not have private health insurance. Medicare would not assist because it was considered a compensation claim.

MEDICAL EVIDENCE: Dr Scougall

47. Dr Scougall, orthopaedic surgeon, adopted his reports dated 14 May 2002 and 12 September 2002 (Exhibit A4). He confirmed that it was his view that the 1982 accident accounted for 20% of the Applicant's present assessment, and that the 1991 and the 1999 incidents each accounted for the balance, that is 40% each. He assessed her as having a 15% whole person impairment under Table 9.6 and a 20% whole person impairment under Table 9.5.

48. In relation to the Applicant's leg pain he said he had taken a history that she experienced right leg pain following the 1983 incident but there was nothing in respect of the left leg until this year. There was no objective evidence as to the cause of the Applicant's leg pain.

49. His attention was invited in cross-examination to his observation in the earlier report that the Applicant had related most of her present disability to the original incident. He agreed that that was what he had been told but on the basis of the pathology, his findings, the time since that accident and her subsequent injuries he found the last incident to be at least as bad, if not worse, than the first. He agreed that it was sometimes possible for soft tissue lesions to continue for 20 years.

50. He was asked to comment if the Applicant's symptoms were consistent with obesity. He said this was a significant problem for the Applicant and agreed that some people who are obese get a lot of back pain. To lose weight would be a benefit for everyone with back pain.

51. He was also asked to comment on the Applicant's apparent failure to seek treatment for the condition since her initial consultation with Dr Boa in April 1999. He said he doubted treatment would be beneficial and that the Applicant would be unlikely to respond as her condition had stabilised. He regarded her back as 'strong enough` and strengthening exercises were not necessary and that increased muscle strength would not make may difference. She should, however, `protect' her back and lose weight.

MEDICAL EVIDENCE: Dr Maxwell

52. The Respondent called Dr Maxwell, orthopaedic surgeon and he adopted his reports of 13 February 2002 and 1 November 2002 (Exhibit R15).

53. Dr Maxwell said he could find no neurological explanation for the Applicant's leg pain, other than referred pain from her back. He assessed her back condition at 10% but found that all of this was from constitutional factors and that none of it is a result of any work related injury. He said that any pain that the Applicant suffers is due to her extreme obesity and poor physical condition. When he examined her she had a range of movement in excess of 50% of the normal range. He considered that the three incidents contribute to her condition only to the extent that she experienced acute sprains which would have settled in four to six weeks. Sprains such as the Applicant had described do not create a continuous problem.

54. He considered she would benefit from losing weight and from strengthening her trunk. If she were active, in his view, she would have no back pain. There is a greater incidence of back pain in the obese. `A person with a large tummy must throw their shoulders back and that creates pressure on the facet joints.'

55. He observed in his latter report that the Applicant had remarkably good disc space preservation and noted that the CT scan showed no evidence of a disc protrusion, although he agreed he had formed this view on the basis of somewhat old material. He said that the degenerative changes observed in 1991 would render someone more vulnerable to aggravation, especially if they were obese. He agreed it was possible to experience pain without radiological indication of change and that it was common to have pain without any organic basis. However that was also consistent with soft tissue injury.

56. In relation to the history given by the Applicant that she has difficulty standing or sitting for long periods and is only able to walk 100 metres (Exhibit R15, p3) he denied that the Applicant had said anything about difficulty with grades and stairs. If she does have that problem he said it was because of her obesity, as it would for anyone of her size, and was not due to her back problem.

57. As to the limitation upon the Applicant's lifestyle the doctor said he would be surprised if she had previously been capable of attending to her housework, gardening and other activities and able to sit for long periods and walk for long distances.

SUBMISSION: APPLICANT

58. In her submission, counsel for the Applicant referred the Tribunal to the report of Dr Pike, orthopaedic surgeon dated 8 July 1983 (Exhibit A2c) in which the doctor had observed that the Applicant's back pain (as a result of the first accident) had continued to improve. Her range of movement continued to improve and her straight leg raising was unimpaired. Following that accident she had had only intermittent symptoms until 1991.

59. As a result of the second accident the Applicant had had problems for three to four months and it was noted that Dr Hammond in his report of 19 December 1991 (Exhibit A5) had observed that the Applicant had a `gradual improvement in her condition'.. Initially she had been treated by traction and analgesics and her impairment at the time of the examination was `quite marked'.. She had virtually normal straight leg raises with no demonstrable sensory abnormality in the lower limbs. There remained some tenderness in the lumbo-sacral midline. He did not regard her as having permanent impairment but suggested a few further weeks on light duties. He felt the prognosis was good `especially if she learns to avoid those situations and activities especially lifting ... which may cause recrudescence of the low back symptoms.' She in fact returned to duty in January 1992.

60. The Applicant's evidence was that she was able to go about her normal duties and activities, if careful about lifting, until she ceased work in order to assist her husband in 1998 or early 1999.

61. Immediately prior to the third accident she was able to drive to Tamworth and sit at the training course for two days. After injuring her back on about her second day of work her condition rapidly deteriorated. She saw Dr Boa as soon as possible, and any difficulty she had with dates, it was submitted, was adequately explained by her completion of forms without having her itinerary available.

62. As to the effect upon the Applicant's right leg, it may be that there were symptoms prior to March 1999 but her condition has deteriorated and those pains have affected her ability to walk.

63. Dr Stratton had, in his reports of 11 April 2000 (T18), 22 May 2000 (T19) and 5 June 2000 (T20) calculated the Applicant's impairment, unfortunately, somewhat ambiguously. He found a 20% permanent impairment of the back which he attributed as follows:

1982 -- 50%

1991 -- 25%

1999 -- 25%

He apportioned 10% of her loss to a pre-exiting degenerative condition.

64. In his final report he explained that 10% of her present impairment is attributable to the degenerative condition and the remaining 90% was attributable to the three accidents in the proportions indicated. Although Dr Stratton did not make any comment as to impairment in relation to the Applicant's lower limbs the history he had taken was not inconsistent with that of Dr Scougall. Counsel regretted that further clarification was unavailable as Dr Stratton has since died.

65. Counsel invited the Tribunal to adopt the proportions identified by Dr Scougall, that is, a 15% whole person impairment under Table 9.6 as the Applicant had a loss of half the normal range of movement of the back. Dr Scougall also assessed her leg impairment as 20% whole person impairment under Table 9.5. Dr Scougall had apportioned contribution as follows:

1982 -- 20%

1991 -- 40%

1999 -- 40%

66. The Applicant submitted that the appropriate course for the Tribunal was to adopt the impairment rating for the spine (at least 10%) and add this to the rating for the lower limbs (20%). Applying the Combined Values Chart produced an overall impairment rating of 28%. Only after this combination was the apportionment between the various accidents to take place. Dr Scougall's assessment of contribution of the subject incident (40%) would produce an impairment of 11.2%

SUBMISSION: Respondent

67. Counsel for the Respondent noted the confusion in the evidence as to when exactly the accident may have occurred. Similarly she said it should be of concern to the Tribunal that the Applicant's evidence as to her pain in each of her legs and her back and the vague nature of the description of the pain was such as to make her evidence unreliable.

68. She noted that there was some medical evidence that the Applicant had had, in 1991, continual low back pain since 1983 (Dr Hammond Exhibit A5). While the prognosis was reasonably good Dr Hammond noted precautionary measures that the Applicant would have to avoid in order to prevent further injury.

69. There was particular concern, counsel for the Respondent submitted, in relation to the leg conditions, in that the Applicant had at the hearing admitted that what she had told Dr Scougall, (Exhibit A4) namely that she had only had the left leg condition `in the last few months' was inaccurate.

70. As to the Applicant's capacity to undertake her domestic and other duties, counsel observed that the only evidence in that regard was that of the Applicant and the Respondent is not in a position to provide evidence to the contrary. It was said to be insufficient that the Applicant merely asserts her inability to undertake these tasks.

71. It was submitted that it should be of particular concern to the Tribunal that the Applicant did not seek medical evidence until mid April 1999, that is, at least two weeks until after the accident. Some inference, it was suggested, should also be drawn from the fact that, excluding the training and the debrief, the contract period was for a total period of only two weeks.

FINDINGS

72. In coming to the correct and preferable decision, the Tribunal took into account all the evidence, submissions, case law and relevant legislation.

73. Having regard to the submissions of counsel for the Respondent in relation to the credit of the Applicant the first task for the Tribunal was to be satisfied that the injury the subject of the claim was a work-related one.

74. The Applicant's evidence was that she injured her back while pulling a heavy bag from the boot of her car during the course of her duties with the ABS. The Tribunal accepts that the Applicant injured her back in this way.

75. Much was made by counsel for the Respondent about the Applicant's inability to precisely recall the date of the incident. More reliable, it was submitted, were the reports from the Applicant's employer which put the date of the accident at 16 March 1999. In response to these concerns it was the Applicant's position that inaccuracies in her recording of the accident occurred because she did not have her itinerary available to her.

76. The Tribunal considered the case of Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd's Rep 403 in which the issues surrounding credibility of witnesses and the importance of contemporary documents are discussed. Lord Pearce at 431 stated:

"It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance."

The Tribunal accepts that the Applicant notified her supervisor soon after the accident and, adopting Onassis, prefers the account that the accident occurred on that date.

77. The significance of the date is particularly relevant in the context of the duration for which the Applicant was able to continue work. On the Applicant's account she was able only to work for some of the next day. Her supervisor's document (Exhibit R3) suggests she worked for some days afterwards.

78. Perhaps of more significance is the length of time before she sought medical attention. Her evidence was that she had sought treatment `a couple of days' after the accident. Even at the latest possible date of the accident from her various accounts, her attendance at the surgery of Dr Boa was not until at least three weeks afterwards.

79. Compensation under section 24 of the Act is only payable where the impairment of the employee is permanent. In determining if this is the case consideration is given to the duration of the impairment, the likelihood of improvement in the condition, whether all reasonable rehabilitative treatment has been undertaken, and any other relevant matters.

80. The Applicant's evidence was to the effect that since the accident her back has been continually painful. She also has pain in her legs. Dr Scougall considered her condition to be permanent whereas Dr Maxwell considered that she had suffered a sprain and that the pain should have resolved within weeks.

81. Notwithstanding cross-examination the Applicant maintained that she continued to suffer the effects of the accident. The Tribunal does not accept that the Respondent has no means of countering her assertions. The Tribunal accepts the Applicant's account and prefers the evidence of Dr Scougall in this regard, it being consistent with the Applicant's evidence.

82. The Tribunal then turned to consider if all reasonable rehabilitative treatment has been undertaken. Dr Scougall and Dr Maxwell disagree as to the beneficial effects of weight reduction and strengthening exercises in the Applicant's case. Dr Scougall did agree that the Applicant's weight was a significant problem and that some people who are obese get a lot of back pain. He conceded that to lose weight would be a benefit for everyone with back pain.

83. However her obesity is long standing. In 1991 Dr Marsden (Exhibit R10) described her as `a large person', weighing 90 kilograms and that she had `massive obesity of the abdomen'. Dr Hammond (Exhibit A5) also considered in 1991 that her (non-permanent) condition would improve if she lost weight. Apparently she did not, but according to her evidence she was able to maintain a normal lifestyle until the accident the subject of the claim.

84. While the Tribunal accepts, on the evidence of both Dr Scougall and Dr Maxwell that it would be beneficial if the Applicant lost weight, it does not consider that her failure to do so means that all reasonable rehabilitative treatment has not been undertaken. She was obese before the accident and remains obese.

85. As to the extent of her treatment the Tribunal notes that the evidence is that on attending Dr Boa he advised her to keep up the Naprosyn, as required, as she had done when her back had previously given her trouble. No other treatment was recommended and the Tribunal finds that, in following her doctor's advice, all reasonable rehabilitative treatment has been undertaken.

86. The Tribunal therefore finds that the Applicant's condition is a permanent one.

87. The Tribunal next turned to consider the assessment of the Applicant's permanent impairment. The Tribunal accepts that the Applicant was injured in 1982 and in 1991 and as a result of each suffered periods of intermittent pain, but with no permanent effects. The Applicant had suffered an aggravation of her pre-existing back condition.

88. The Tribunal, in considering the issue of compensation for an aggravation to a pre-existing condition, referred to Comcare v Amorebieta (1996) 22 AAR 539, where at 552 Jenkinson J states:

"The measure of that compensation is the degree of permanent impairment which has resulted from the aggravation of the disease, and in contemplation of law the degree of impairment to which the aggravation brings the respondent's spine is caused by - 'results from' - that aggravation, whatever the lesser degree of impairment was which preceded the aggravation and whatever the extent to which events and degenerative processes preceding that aggravation contributed to cause that degree of impairment."

89. In rejecting Comcare's submission, the Court redefined the construction of section 24(5). The Tribunal in Hill and Comcare (AAT 12892, 11 May 1998), aptly summarised Jenkinson J's interpretation of section 24(5) as being the authority for the proposition that if an impairment was not present before, and is present after an injury, the presence of degeneration prior to the injury does not result in any notional discounting. A number of other Tribunal decisions have adopted Jenkinson J's construction of section 24(5) (Williams and Australian Postal Corporation (AAT 12695, 11 March 1998), Mitsilias and Australian Postal Corporation (AAT 10968, 29 May 1996), Martin and Australian Postal Corporation (AAT 12502, 19 December 1997).

90. These Tribunal decisions raise certain issues which should be considered in applying Jenkinson J's construction of section 24(5):

(a) Whether the pre-exisiting degenerative disease is symptomatic or asymptomatic. If it is asymptomatic, the Tribunal in Hill (supra) found that it is inappropriate to consider notional discounting. This case thus identifies the requirement in Jenkinson J's construction of section 24(5) that the pre-existing degenerative condition must be asymptomatic prior to the aggravation of the condition. The Tribunal's conclusions in Hill leave open the issue of the extent to which the impairment rating should be discounted where a pre-existing degenerative disease is symptomatic.

(b) Whether a medical practitioner has rated the degree of impairment caused by the applicant's employment as a portion of the total impairment. The Tribunal in Williams (supra) distinguished the facts in Amorebieta (supra) and found in this case that as the applicant's medical practitioner was able to allocate a percentage of impairment attributable to work, the respondent was not liable for the total percentage of impairment found to exist where the applicant's work aggravated a degenerative back condition. Williams thus highlights the need to isolate harm suffered in "compensable circumstances". That is, as a result of the injury or aggravation of an injury arising out of or in the course of employment.

91. In this case there is strong medical evidence apportioning the contributions of the Applicant's three accidents to her permanent impairment.

92. The Tribunal observes that the Guide to the Assessment of the Degree of Permanent Impairment (which is binding on the Tribunal) contains the following provision:

"If the employee's impairment is entirely attributable to a pre-existing or underlying condition, or to the natural progression of such a condition, the assessment of permanent impairment should be nil.

Where it is possible to isolate the compensable effects of an injury upon a pre-existing or underlying condition the assessment of the degree of permanent impairment should reflect only the impairment due to those compensable effects."

The Principles of Assessment in the Guide include the following:

Combined Impairments

It is important to realise that impairment is system or function based and that a single injury or disease may give rise to multiple loss of function. When more than one table applies to a single injury separate scores should be allocated to each functional impairment. Where two or more injuries give rise to the same impairment a single rating only should be given.

Aggravation

An assessment should not be made unless the effects of an aggravation are considered permanent. If the employee's impairment is entirely attributable to a pre-existing or underlying condition, or to the natural progression of such a condition the assessment for permanent impairment should be nil.

Where it is possible to isolate the compensable effects of an injury upon a pre-existing or underlying condition the assessment of the degree of permanent impairment should reflect only the impairment due to those compensable effects.

93. In Martin v Australian Postal Corporation [1999] FCA 655 (14 May 1999) Burchett J:

Fluctuations in the severity of a constitutional condition and the similarity or identity of the effects typical of the condition, or capable of being produced by it, with those typical of an aggravation of the condition, or capable of being produced by such an aggravation, may make disentanglement of the one set of effects from the other set of effects a hopeless task. The draftsman of the approved Guide plainly recognized this by the qualification "[w]here it is possible to isolate the compensable effects of an injury". Those words should be understood as acknowledging both the wider problem to which I have referred, and the continuing validity of the analysis made by each of Jordan CJ and Barwick CJ. If there be any ambiguity, and I do not think there is, the remedial nature of the legislation would require it to be construed liberally, and not restrictively: Brennan v Comcare (1994) 50 FCR 555 at 559; Comcare v Bozicevic (1997) 144 ALR 132 at 145.

94. In referring to Table 9.6, Dr Scougall found the Applicant's whole person impairment to be 15%. He attributed a 20% whole person impairment under Table 9.5. However, the Applicant's case, at its highest (Dr Scougall), is that the 1982 accident accounted for 20% of the Applicant's present assessment, and that the 1991 and the 1999 incidents each accounted for the balance, that is 40% each.

95. Section 24(7) of the Act provides that compensation is not payable where it is determined that the degree of permanent impairment of an employee is less than 10%, except in relation to an impairment resulting from the loss or injury to a finger or toe, or the loss of the sense of taste or smell. The Tribunal does not accept the Applicant's submission that the time for combining under Table 14.1 is prior to the apportionment. Each condition must be assessed alone.

96. There was, in the Tribunal's view, clear evidence that, it was possible to `isolate the compensable effects' of the third injury upon the Applicant's pre-existing condition and hence the degree of permanent impairment is to reflect only the impairment due to those compensable effects.

97. Applying simple arithmetic the impairment for the conditions, after apportionment is 6% and 8% respectively.

98. Therefore, as neither of the Applicant's conditions reach the 10% threshold anticipated by section 24(7) compensation is therefore not payable under sections 24 and 27 of the Act.

DECISION

99. The Administrative Appeals Tribunal affirms the decision under review.

I certify that the 95 preceding paragraphs are a true copy of the reasons for the decision herein of

MS N ISENBERG, MEMBER

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

Associate

Date of Hearing 12 December 2002

Date of Decision 15 January 2003

Counsel for the Applicant Ms K Sibley

Solicitor for the Applicant Mr T Mannah

Counsel for the Respondent Ms L Walker

Solicitor for the Respondent Ms M Mittiga