Prentice and Comcare [1997] AATA 831 (12 June 1997)

Last Updated: 14 January 2009

Administrative
Appeals
Tribunal

DECISION AND REASONS FOR DECISION NO 11942

ADMINISTRATIVE APPEALS TRIBUNAL )
) No N95/1121
GENERAL ADMINISTRATIVE DIVISION )

Re DEIDRE JOAN PRENTICE
Applicant

And COMCARE
Respondent

DECISION

Tribunal Ms G Ettinger Senior Member

Dr M E C Thorpe Member

Ms J A Shead Member

Date 12 June 1997

Place Sydney

Decision The decision under review is affirmed. The Tribunal further finds that the Applicant does not suffer permanent impairment which is compensable pursuant to the terms of the Compensation (Commonwealth Government Employees) Act 1971 or the Safety Rehabilitation and Compensation Act 1988.

..............................................
Ms G Ettinger
Senior Member

CATCHWORDS

COMPENSATION - degenerative spine - earlier work-related incidents - incident during lunchbreak with motor vehicle - liability accepted - whether incapacity - whether permanent impairment - decision affirmed - no compensable permanent impairment found -

Compensation (Commonwealth Government Employees) Act 1971

Safety Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 24, 27, 28, 124

Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees Guide to the Assessment of the Degree of Permanent Impairment

Comcare v Miles [1995] FCA 1200; (1995) 129 ALR 427

REASONS FOR DECISION

12 June 1997 Ms G Ettinger Senior Member
Dr M E C Thorpe Member
Ms J A Shead Member

1. The decision under review before the Administrative Appeals Tribunal (“the Tribunal”) was the decision of the Review Officer of Comcare of 25 July 1995 (T40), affirming a decision of 14 June 1995 (T38) which found that any condition the Applicant, Mrs Deirdre Joan Prentice, suffered was not the result of the claimed accident of 5 November 1992. Both determinations found that there was no physical reason for Mrs Prentice not to upgrade in a clerical occupation to full hours of work. Compensation payments to Mrs Prentice had ceased, in accordance with these decisions, on and from 16 June 1995 (T38). Payments for medical expenses had ceased from 25 May 1995 (T38).
2. The Applicant was represented by Mr L Grey of Counsel, and the Respondent by Mr G Johnson of Counsel. The initial hearing which took place on 10 September 1996, commenced with Mr Grey objecting to the admission into evidence before the Tribunal of medical evidence obtained as a result of examination of the Applicant by a medical panel consisting of Doctors D Dowda, occupational physician and A Hodgkinson, orthopaedic surgeon. The Tribunal made a ruling which in summary found that these examinations were in contravention of section 57(1) of the Safety Rehabilitation and Compensation Act 1988 (“the 1988 Act”), and that given the particular circumstances of Mrs Prentice’s examination, neither the oral nor written evidence of those doctors would be admitted into evidence. The particular circumstances included the fact that Mrs Prentice was unrepresented at the time the examination was arranged, and that she would, on the balance of probabilities, not have fully known her rights. The Tribunal noted that the examination which took place on 29 May 1995 was dated prior to the time of the reviewable decision of 25 July 1995, but said that it “would be equally concerned if these reports had been similarly obtained at a later date in connection with this application.” The Tribunal in response to Mr Johnson’s concern said that it too “is concerned with the lateness of the application of the Applicant but is concerned with procedural fairness at all times and must therefore take those principles into account in deciding whether to admit the evidence of the two doctors.” The Tribunal then adjourned to give the parties the opportunity of obtaining further medical examinations in preparation of the case.
3. At the resumed hearing of this application on 17 and 18 March 1997, oral evidence in person was given by:

• Mrs D J Prentice, the Applicant
• Mr R J Prentice, the Applicant’s husband
• Dr A Millar, rehabilitation physician
• Dr D Roebuck, orthopaedic surgeon
• Dr P Stalley, orthopaedic surgeon
• Dr R Lewin, psychiatrist
  

Telephone evidence was also given by Dr J Olsen, specialist in occupational medicine, and Dr B Hammond, orthopaedic surgeon.

4. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act (Exhibit R1) as well as the following exhibits:

Item	Date	Name
Report of Dr A Millar	8 August 1995	Exhibit A1
Report of Dr A Millar	28 March 1996	Exhibit A2
Report of Dr C Browne	8 September 1995	Exhibit A3
Report of Dr C Browne	12 April 1996	Exhibit A4
Report of Dr J Grady	12 February 1996	Exhibit A5
Report of Dr D Roebuck	30 November 1995	Exhibit A6
Report of Dr P Blum	1 April 1996	Exhibit A7
Reports of Dr P Harvey-Sutton	27 June 1995 20 October 1995	Exhibit A8
Report of Dr J Chen	28 March 1994	Exhibit A9
Report of Dr B Hammond	31 January 1996	Exhibit R2
Report of Dr P Stalley	14 November 1996	Exhibit R3
Report of Dr R Lewin	4 March 1996	Exhibit R4
Report of Dr J Olsen	10 October 1996	Exhibit R5
Video tape of Applicant	mid-year 1996	Exhibit R6
Report of Dr B Hammond	23 August 1996	Exhibit R7
Report of Dr J Olsen	13 March 1997	Exhibit R8
Report of Dr P Stalley	10 March 1997	Exhibit R9
Curriculum vitae of Dr R Lewin	undated	Exhibit R10
Dr P Stalley, schedule of questions	undated	Exhibit R11
Letter from Dr P Spira	22 August 1994	Exhibit R13
Notes from Dr D Beswick’s practice	various	Exhibit R14
Letter from Dr E Harris to Ms Koeman	7 November 1992	Exhibit R15

5. The video (Exhibit R6) depicted the Applicant shopping at a supermarket in the company of her husband.

HISTORY OF THE MATTER

6. The Tribunal noted that the Applicant, whose date of birth was 1 June 1939, works in the childcare section of the Department of Health and Family Services.
7. She has suffered three work-related incidents. In 1977 Mrs Prentice injured her back while lifting boxes of census forms during the course of her employment at the Australian Bureau of Statistics. She had a short time off work as a result of this injury and there was no evidence before the Tribunal to convince the Members that she had not made a good recovery.
8. In November 1988 Mrs Prentice was employed as a clerk with the Department of Administrative Services. She was injured when a gas-operated chair on which she was sitting at work collapsed. The evidence was that she was unable to work for a period of one week as a result of this accident. Mrs Prentice told the Tribunal that she paid for chiropractic and acupuncture treatment herself as she suffered pain after this accident. The evidence before the Tribunal was that the Applicant recovered from this incident and was working full-time.
9. The Tribunal notes however that Mr Grey submitted that it was not known what overall effect the 1977 and the 1988 incidents may have had. Mr Johnson on the other hand submitted that after each of these occasions, Mrs Prentice had returned to full-time employment, and had indeed been promoted before the incident of 1992.
10. The third incident suffered by Mrs Prentice is the primary focus of the proceedings in this matter, although all three occasions were work-related. Liability was accepted for each of the above-named incidents.
11. The Tribunal notes that the history given by the Applicant with regard to the third incident is that on 5 November 1992, while on her lunchbreak, Mrs Prentice was struck by a car while crossing the road on the corner of King and George Streets in Sydney. As a result of this, Mrs Prentice was off work until 12 November 1992, and for various periods thereafter. On 21 November 1992 she lodged a claim for compensation (T6).
12. On 14 February 1993 the Applicant commenced a 21 week rehabilitation plan with the Vocational Rehabilitation Service (the “VRS”) (T9), working full-time, but attending physiotherapy three afternoons a week. In May 1993, Mrs Prentice returned to full-time work. She continued to see various doctors over the next period of months. From February 1994 she took various periods off work.
13. The Tribunal notes that Mrs Prentice also suffered a non-work related accident on 29 May 1993. She was involved in a car accident in which the Applicant said she suffered minor injuries. Mrs Prentice said in evidence that this accident had no lasting effects.
14. On 9 May 1994, Mrs Prentice commenced a graduated return to work program of 4 hours per day, 3 days per week. On 30 June 1994 she was examined by Dr J Chen (T19). Based on Dr Chen’s report, Ms S Kjellberg of the VRS recommended that the Applicant reduce her working hours to 3 hours per day, 3 days per week (T18).
15. On 29 May 1995 Mrs Prentice was examined by a medical panel comprising Dr Dowda and Dr Hodgkinson (T35,T36).
16. On 14 June 1995 Comcare made a determination, based upon the medical panel report, denying liability for any further payments with regard to Mrs Prentice’s compensation claim on and from 16 June 1995 for incapacity, and on and from 25 May 1995 for medical accounts (T38). The letter to her stated:

“I have reached this decision because the panel does not consider your condition to be the result of the claimed accident of 5 November 1992... I am ceasing incapacity payments on 16/06/95 as I think it is fairer to request that you go back to full-time duties on Monday 19/06/95. The panel found no physical reason for you not to upgrade to full hours...”

17. In June 1995, Mrs Prentice commenced a gradual increase in her hours to six hours per day, 5 days per week.
18. On 25 July 1995 (T40), a determination was made by a Review Officer of Comcare, affirming the determination of 14 June 1995 (T38). It is this decision which is currently under review by this Tribunal. The reviewable decision was based upon medical evidence which has been excluded from these proceedings. Accordingly, the Tribunal, in making its decision, has had regard to all the other evidence available and has not had regard to the findings of the medical panel.

ISSUE BEFORE THE TRIBUNAL

19. The issues before the Tribunal were:

(a) whether the Applicant has been incapacitated for work within the terms the Safety Rehabilitation and Compensation Act 1988 on and from 16 June 1995 as a result of an incident which occurred on 5 November 1992; and

(b) whether she suffers permanent impairment which is compensable, arising out of or in the course of her employment with the Respondent.

THE LEGISLATION

20. Liability for the first two incidents mentioned above which occurred to Mrs Prentice, was accepted pursuant to the Compensation (Commonwealth Government Employees) Act 1971 (“the 1971 Act”) because they occurred before 1 December 1988. The relevant legislation with regard to the incident of 5 November 1992, subject of this claim, is the Safety Rehabilitation and Compensation Act 1988 (“the 1988 Act”), in particular sections 4, 14, 16, 24, 27, 28, and 124. These follow as relevant:

“4 (1) In this Act, unless the contrary intention appears:

“Impairment" means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function."

“injury” means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
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;”

21. Section 14(1) of the 1988 Act provides for compensation to be paid in accordance with the legislation where an injury suffered by Mrs Prentice has resulted in incapacity for work. Section 16 of the 1988 Act which follows as relevant, provides for payment by Comcare of appropriate medical treatment.

“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.

... ”

“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.

22. Section 124 deals with the application of the 1988 Act to injuries which existed before the 1988 Act came into effect. This means that if Mrs Prentice would have been eligible for compensation for the earlier injuries under the 1971 Act, she remains eligible under the 1988 Act. Section 124(1) follows as relevant:

“124. (1) Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.”

23. The Tribunal looked to what is meant by “permanent”. “Permanent” is defined as follows in both the 1971 and 1988 Acts:

“Permanent” means “likely to continue indefinitely.”

24. Section 24(1) of the 1988 Act deals with 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.
...
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
...
(7) ... [W]here 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.”

“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.”

25. Section 28 of the 1988 Act states that in making its decision, the Tribunal is bound by the provisions of the Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees Guide to the Assessment of the Degree of Permanent Impairment (“the Comcare Guide”), as was the original Comcare decisionmaker.
26. The Tribunal notes that Table 9.6 applies in this matter. As relevant it follows:

DESCRIPTION OF LEVEL OF IMPAIRMENT
% CERVICAL SPINE THORACO-LUMBAR SPINE
0 X-ray changes only X-ray changes only
5 Minor restrictions of movement Minor restrictions of movement
OR
Crush fracture - compression
25 -50 percent
10 Loss of half normal range of movement Loss of less than half normal range of movement
OR
Crush fracture - compression
greater than 50 percent
15 Loss of more than half normal Loss of half normal range of
range of movement movement
20 Complete loss of movement Loss of more than half normal
range of movement
30 - Complete loss of movement

EVIDENCE OF MRS PRENTICE

27. Mrs Prentice gave evidence that on 5 November 1992 she was involved in an accident while on her lunchbreak from work. She said that she had been crossing the road at the corner of King and George Streets in Sydney when a car ran through the red light, hit her and drove away. Mrs Prentice said that she thought she put out her hand and sustained impact with the car, moving over it, and landing on her feet. She said that she walked back to her office feeling dazed, and said that on her return to the office she felt severe pain in her neck, left arm, right leg and back, and across her shoulders. She said that she could not recall where exactly her body had been hit, but that she knew it was on her left side. Mrs Prentice said she attended at Dr Beswick, her general practitioner and did not return to work until 12 November 1992. She said she had pain and "everything ached." In December 1992 she had had a month off work. She said that her neck problems commenced with the 1992 incident.
28. Mrs Prentice said that since the accident she had tried to get back to work through various rehabilitation programs. She gave details of these which included, at various times, working shorter hours, working only part of each week, having assistance of a psychologist working in pain management, various radiological examinations and treatment for vertigo.
29. Mrs Prentice said that since June 1995 she had been working six hours per day and was finding this increasingly difficult, particularly as her daughter, who had previously assisted around the house, had now moved out. She said she had pain at the same level as in 1994, and continued to work only for financial reasons. Mrs Prentice said that she has difficulty in performing household tasks such as changing sheets and hanging out washing. She said that she has general difficulties twisting and bending to pick things up, has her husband assist with shopping, feels depressed and has had some difficulty in adjusting to her problems.
30. Mrs Prentice gave evidence that she only manages to work for six hours each day because she is able to lie down and rest for an hour at lunchtime. She also said that she needs to lie down and rest for some time each day upon her return home from work.
31. The Applicant said that she developed problems with her balance, dizziness and nausea and her neck that she had not experienced prior to her accident in 1992. She stated in evidence that these problems had caused her to fall a number of times while attempting to negotiate public transport. She said that these problems, including difficulty with stairs, made it very difficult for her to travel to and from work by public transport. She said that she was dependent upon her husband picking her up from work. Mrs Prentice said that a fall at Wynyard in 1994 made her neck worse and working at a computer terminal made her shoulder, back and neck worse.
32. Counsel for the Respondent referred Mrs Prentice to the medical reports of Doctors Hammond and Olsen, and put to her that she was reluctant to demonstrate her full mobility in her examinations by them. Mrs Prentice said that this was not the case and that in fact she had done relaxing exercises and “tried to do it again”.
33. It was put to Mrs Prentice in cross-examination that she was overstating the effects of the 1992 car accident, and that her restrictions were not as great as she claimed. It was suggested that the Applicant was playing down other events such as the non-work related car accident in 1993 and putting more emphasis on the 1992 accident. She denied this and said being hit by a car did not happen to one everyday. She said that she was “focusing on the things that affect me”.
34. Mrs Prentice was asked about the different versions of the incident of 5 November 1992 which various doctors had recorded. The Applicant replied that a lot of the medical reports had inaccuracies in them - that, "I wasn't knocked to the ground," and that "I know I was hit by a car; I was thrown over the top of a car." The Tribunal noted that Dr Grady had recorded Mrs Prentice "jumped vaulting over the roof [of the car]” . Mrs Prentice denied she had told the doctor this. The Tribunal noted that Dr Hammond had also recorded details of vaulting. When cross-examined about his report, Mrs Prentice denied vaulting over the car, and said that Dr Hammond had been charming but inaccurate.
35. Mrs Prentice agreed that the earlier two incidents had not stopped her from working full-time, apart from the short period of leave she took following the 1988 accident. She said however that since the 1992 accident she was in constant pain.

EVIDENCE OF MR RAYMOND JACK PRENTICE

36. Mr Prentice, husband of the Applicant and a building consultant, stated in evidence that up until the time of the 1992 accident Mrs Prentice was a very active person with a “nearly normal” capacity to bend and move. He said that after 1992 he noticed for the first time that Mrs Prentice suffered dizziness and suffered difficulty doing things such as getting up out of chairs. Mr Prentice stated that Mrs Prentice had gained weight since the accident in 1992, and opined that this was a result of her being less mobile and eating more due to her frustration with her situation.
37. Mr Prentice said that he collected the Applicant from work each day at 3 pm, and that upon arriving home she rested for between 30 minutes and two hours. It was Mr Prentice’s evidence that they could no longer entertain in the way they used to, as Mrs Prentice went to bed early. He said that he did almost all the shopping after 1992, and assisted with housework. The witness said that the accident had affected Mrs Prentice’s lifestyle in other ways. He said, for example, that she used to swim regularly in their pool, but that she no longer did this as much. Mr Prentice said that the Applicant was no longer able to play with her grandchildren in the way that she used to.
38. Mr Prentice said that on the day of the accident the Applicant had gone from work to a medical centre, and that when he arrived there he found her “babbling, shaking and crying.” He said that she had been very distressed. He said that there had been no blood or bruising on the day of the accident but that a bruise, a purple area at the top of the left arm which he described in some detail, had developed later. When it was put to Mr Prentice in cross-examination that Mrs Prentice had not mentioned such a bruise, he stated that it had not been dark, but "like an old bruise going away” and that he had not paid much attention to it at the time.

MEDICAL EVIDENCE

39. Dr Anthony Millar, rehabilitation physician, gave oral evidence at the Tribunal hearing. His reports were before the Tribunal as Exhibits A1 of 8 August 1995 and A2 of 28 March 1996. Dr David Roebuck, orthopaedic surgeon, whose report before the Tribunal was Exhibit A6 of 30 November 1995, also gave oral evidence before the Tribunal. Both doctors were of the opinion that Mrs Prentice suffered continuing problems as a result of the 1992 incident. In his report of 8 August 1995 (Exhibit A1), Dr Millar wrote that the Applicant had cervical spondylosis which was not caused by the accident but was rendered symptomatic by it. He opined that: "The prognosis is for a continuance of her symptoms over a period of 3 to 5 years. There is no likelihood of further deterioration," and that based on Comcare Table 9.6, the Applicant had a 15% permanent impairment of the neck. In his report of 28 March 1996 (Exhibit A2) Dr Millar expanded upon this and wrote that the Applicant also had: "15% loss of the function of the neck and a 10% impairment of the lumbo-sacral spine. Using the combined values table this represents a 24% impairment of the body." Both Dr Millar and Dr Roebuck said in oral evidence that how much of Mrs Prentice's low back symptomatology was underlying, and how much was due to the 1992 accident could not be determined.
40. In his report of 30 November 1995 (Exhibit A6) Dr Roebuck stated that the Applicant had a 15% whole person impairment “from her cervical spine involvement” and a 20% whole person impairment “from her lumbar spine involvement”, using Comcare Guide, Table 9.6. His report said: "Examination of her lumbar spine reveals evidence of degenerative spondylitis with gross limitations to much more than 50% of her lumbar spinal movements and pain on any attempted movement." He said in oral evidence that Mrs Prentice was fit for light sedentary work such as her present duties indicated. Dr Roebuck agreed that Mrs Prentice could do full-time work if she could have breaks and walk around when she needed to.
41. Dr J Olsen, consultant occupational physician, whose reports of 13 March 1997 and 10 October 1996 were before the Tribunal as Exhibit R8 and Exhibit R5, gave evidence by telephone. Having assessed all the medical file, radiological tests and other doctors' reports as well as conducting an examination of the Applicant, Dr Olsen opined in his report of 10 October 1996 that Mrs Prentice had moderately severe cervical spondylosis with disc protrusions which was "relatively unsymptomatic prior to the motor vehicle accident of 1992, that accident has rendered the previously unsymptomatic condition symptomatic." He opined that there was also quite marked pathology at the lumbar spine.
42. Still in his report of 10 October 1996, Dr Olsen said: "... I do accept her presentation and I consider that she would have difficulties attending work on an unrestricted fulltime basis...I have explained to her the importance of maintaining a level of activity... I have to say that her work would actually be therapeutic rather than a negative factor in maintaining her ability to function."
43. Dr Olsen reported he could not measure permanent impairment because "the tests were invalidated by the significant discrepancy in straight leg raising when compared with forward flexion in the standing position."
44. The Tribunal noted that after viewing the video evidence, Dr Olsen opined: “It appears to me that she has more capacity than she demonstrates and I cannot accept her presentation although I previously stated that I would.”
45. Dr Robert Lewin, psychiatrist, whose report of 4 March 1996 was tendered as Exhibit R4, stated in his oral evidence that he did not consider Mrs Prentice to have a psychiatric disorder. He said that the witness had suffered a soft-tissue injury, and suggested that Mrs Prentice’s emotional reaction to the death of one of her relatives and a potentially life-threatening illness suffered by Mr Prentice had caused her symptoms to continue. The Tribunal notes from his written report that Dr Lewin appears not to have been informed of the above events by Mrs Prentice at that time, and that he concluded in that report that Mrs Prentice suffered “no psychiatric impairment either in general or specifically attributable to an injury in November 1992."
46. Dr Lewin said he was doubtful as to whether treatment of this emotional reaction would be successful. He said that the Applicant stated vehemently that her problems had a physical basis, although that did not accord with his own professional view. Dr Lewin agreed in cross-examination that he could not specifically exclude a physical diagnosis because he had not examined Mrs Prentice physically.
47. Dr Brian Hammond, consultant orthopaedic surgeon, whose report of 31 January 1996 was Exhibit R2, gave oral evidence before the Tribunal. The history he recorded of the 1992 incident included the comment that "... she pivoted on her left hand and vaulted over the car bonnet landing on her feet..."
48. He said that he believed the Applicant to be exaggerating her complaint. He said that on examination Mrs Prentice appeared to deliberately resist the tests and to restrict her movements. It was suggested to Dr Hammond in cross-examination that it would be natural for the Applicant to become tense and so display some resistance to the tests he administered. Dr Hammond agreed but stated that he felt the amount of resistance made him suspicious. He found her level of impairment to be 5% of the lumbar spine, using Table 9.6 and stated that he had “discounted” his assessment of Mrs Prentice’s impairment based upon his assessment of the extent of her "gross restrictions". Under cross-examination, Dr Hammond was unable to specify exactly how he had arrived at the discount figure, and agreed that the level of impairment could just as easily have been assessed as 10% or 15%.
49. Dr Hammond's report indicated that when he examined Mrs Prentice's radiological findings, he found that the degeneration present was not significant for her age group.
50. Dr Hammond found in his report that Mrs Prentice could perform her usual duties, that she should be allowed a reasonable amount of movement, that she should not lift more than 10 kgs and that she should observe back and neck-care principles.
51. Dr Paul Stalley, orthopaedic surgeon, whose report of 14 November 1996 was tendered as Exhibit R3, gave oral evidence to the Tribunal that the level of degenerative and osteoarthritic changes found in the Applicant could appear in a person of her age who had not suffered an injury. He was of the opinion that the Applicant’s range of movements were within the range one would expect in a person of her age. In his report he stated:

“The condition she has, I would believe, is basically a constitutional one and the main symptoms of which she complains at the present moment would be consistent with that. Such patients do have multiple events which can produce temporary aggravations but I do not believe this is in a permanent fashion.”

52. Dr Stalley said that Mrs Prentice had a 10% impairment of the lumbar spine. He said he found any loss of movement of the cervical spine to be well below 50%. He said the loss of movement was consistent with the Applicant's age and radiological findings. Degenerative changes were sometimes asymptomatic and could become symptomatic he said. Nausea and vertigo, he said, were outside his area of expertise.
53. When asked what he knew about the commencement of Mrs Prentice's problems, Dr Stalley said that he understood the Applicant had been perfectly well until 1992.
54. Dr Stalley said that there was no reason why the Applicant could not work full-time provided she avoided sudden impact loading, heavy and repetitive lifting.
55. Other medical reports appear in the T-documents and the reports of yet others were before the Tribunal as follows:

Dr P Blum, consultant neurosurgeon, of 1 April 1996 Exhibit A7, and at T17
Dr Christopher Browne, physician, of 8 September 1995 Exhibit A3 and 12 April 1996 Exhibit A4
Dr James Grady, psychiatrist, 12 February 1996 Exhibit A5
Dr Philippa Harvey-Sutton, occupational physician, 27 June 1995, 20 October 1995 Exhibit A8
Dr Joan Chen, consultant in occupational medicine, 28 March 1994 Exhibit A9, and T19, T27
Dr P Spira, consultant neurologist, 22 August 1994, Exhibit R13

56. Dr Peter Blum, consultant neurosurgeon, said in his report at Exhibit A7, referring to the 1992 accident: "...She [Mrs Prentice] told us quite clearly that she did an acrobatic somersault over the car." Dr Blum said that he saw the Applicant on two occasions, 17 May 1994, when she was referred for cervical spine problems although she did also mention her lumbar spine, and 13 October 1995, when he opined she could perhaps do seven hours work a day with an hour off.
57. Dr Blum concluded "... it is somewhat hard to place her problems directly due to the motor vehicle accident and also difficult to place them due to her work as a clerk."
58. Dr Christopher Browne said, in his report Exhibit A3, that Mrs Prentice had chronic cervical and lumbar spinal pain syndromes associated with aggravation of cervical and lumbar spondylosis. He opined that she had sustained 15% permanent impairment of the neck and 20% permanent impairment of the back as a consequence of aggravated cervical and lumbar spondylosis. He said it was likely the original injury in 1977 which resulted in persistent low back pain was further aggravated by the subsequent injuries as detailed in the history he took.
59. Dr Browne's report of 12 April 1996, Exhibit A4, considers the reports of Drs Roebuck and Grady, noting that these doctors attributed Mrs Prentice's neck and low back pain to the 1992 accident rather than to the 1977 accident as he had. He added that on the basis of Table 9.6 in the Comcare Guide, he would assess Mrs Prentice as having 10% whole person impairment with regard to the cervical spine and 15% whole person impairment in regard to the thoraco lumbar spine.
60. Dr James Grady, psychiatrist, in his report at Exhibit A5, mentioned the Applicant "jumped vaulting over the roof [of the car] and landing on her feet." He opined that "Mrs Prentice had adjustment disorder with mixed anxiety and depression... Some allowance should be made for the stress resulting from her husband's serious illness contributing to her present emotional condition, but it is apparent that before the onset of this illness emotional problems were well established." He was unable to identify permanent impairment with regard to Mrs Prentice's mental and emotional state.
61. Dr Philippa Harvey-Sutton, occupational physician whose reports were Exhibit A8, recorded that Mrs Prentice "half hurdled a car and landed on her feet." She diagnosed cervical and lumbar spondylosis and chronic pain syndrome, and recommended a graded return to work without rapid repetitive tasks.
62. Dr Joan Chen, consultant in occupational medicine, whose reports were before the Tribunal at T19, T27 and Exhibit A9, reported in 1994 (T19) that Mrs Prentice had moderately severe cervical spondylosis. She noted also that Mrs Prentice’s difficulties with adhering to the rehabilitation program, more than 50% of which she had spent away from work, might have also been attributed to the travel, ergonomic and interpersonal psycho-social factors. In her report of 28 March 1994, (Exhibit A9), Dr Chen detailed various restrictions on repetitive work and lifting and concluded that “provided suitable duties are available Mrs Prentice may continue full time selected duties.” On further review in November 1994, reported at T27, Dr Chen opined that Mrs Prentice was genuine in her complaints and that the clinical findings were consistent with her symptoms.
63. Dr P Spira, consultant neurologist, whose report was before the Tribunal as Exhibit R13, described the incident of 5 November 1992 as “... that she was involved in a curious motor vehicle accident..” He opined also: “Overall I was left with the feeling that she was dramatising many of her symptoms...”

POST-VIDEO MEDICAL EVIDENCE

64. Dr Millar and Dr Roebuck both stated in evidence that their opinion of the Applicant’s condition did not change after viewing the video. Dr Millar said that he had never seen a video which had altered his opinion, and said that you could not measure movement by looking at a video. When asked whether Mrs Prentice appeared to be in pain on the video, Dr Millar answered in the negative.
65. Dr Roebuck said that he was of the opinion that Mrs Prentice was not moving “very much at all” on the video. When asked whether she demonstrated any restriction in her movement as seen on the video, he said she was moving carefully, but it would be hard to assess. When asked what activities Mrs Prentice should avoid, Dr Roebuck said that she should not lift weights over two to three kilograms at all or undertake repetitive lifting of weights less than two or three kilograms, stand or sit for long periods, or stretch or reach repetitively.
66. Counsel for the Respondent submitted that the video demonstrated that Mrs Prentice could stand for half an hour at a time, and asked Dr Roebuck whether there was any reason why Mrs Prentice would be unable to do full-time, mid-range clerical work. Dr Roebuck opined that if a job did not require Mrs Prentice to undertake those tasks outlined in the paragraph above, she would be able to do it. He stated that the most important thing would be that Mrs Prentice had control over her physical activity.
67. Dr Olsen, whose report dated 13 March 1997, at Exhibit R8, was written after viewing the video before the Tribunal, gave evidence by telephone. He stated that he found it difficult to discern detail of what Mrs Prentice was doing from viewing the video. He was of the opinion, however, that Mrs Prentice displayed more movement in the video than in earlier examination. Although he did not find the video a highly accurate tool, Dr Olsen nevertheless stated that he found “the difference quite great”. He said in his report "It appears to me that she has more capacity than she demonstrates and I cannot accept her presentation although I previously stated that I would. Nevertheless I would consider her fit for work only on a part time basis and the six hours per day stated would appear reasonable."
68. Dr Stalley's report of 10 March 1997, Exhibit R9, was written after having viewed the video of the Applicant. He concluded that he would not change his assessment after seeing the video and said: "The film which I have viewed was consistent with the assessment of this lady's range of movement that I have found on clinical examination. There is very little limitation found on physical examination and that is exactly what one sees on the tape."
69. Dr Hammond, whose report of 23 August 1996 was Exhibit R7 before the Tribunal, gave his view of what he had seen on the video. He stated that he “had difficulty reconciling” the video of Mrs Prentice with what he had seen upon his examination of her. He agreed with Mr Johnson’s suggestion that the video did not depict the activities of a person whose spinal movements are “grossly restricted by pain”.
70. Dr Hammond stated that from viewing the video he could see nothing wrong with the Applicant’s neck, although he did qualify this by saying that she did not do all that he would have liked in order to assess this accurately. He detected no restriction of movement in the cervical spine, and maintained his pre-video view of Mrs Prentice’s lumbar spine as being impaired at 5% according to the Comcare Tables.

SUBMISSIONS AND CONCLUSIONS

71. The Tribunal is required to take into account all of the evidence before it, as well as relevant case law and legislation, in order to arrive at the correct and preferable decision about whether Mrs Prentice has been incapacitated for work on and from 16 June 1995 as a result of an incident on 5 November 1992, and whether she has suffered permanent impairment which is compensable.

WHETHER MRS PRENTICE HAS BEEN INCAPACITATED ON AND FROM 16 JUNE 1995

72. The Tribunal finds, from the evidence before it, that Mrs Prentice recovered from the two discrete incidents suffered in 1977 and 1988 which were described in evidence, and that she continued to work full-time and gain promotion. The evidence before the Tribunal, which it accepts, is that on 5 November 1992 a further incident occurred for which the Respondent accepted liability until 16 June 1995. The Tribunal notes that there was also a further non-work related motor vehicle accident on 29 May 1993.
73. The Tribunal notes that there were inconsistencies in the reporting by Mrs Prentice of the incident which took place on 5 November 1992. Mr Grey for the Applicant submitted that all the evidence showed that there was some sort of accident which resulted in Mrs Prentice seeking medical treatment and in her suffering continuing pain. It was submitted for Mrs Prentice that her previous history of work and self-employment indicated that she was not the type of person to “make-up” a claim such as the current one. Mr Grey submitted that Mrs Prentice has been anxious to get back to work and to increase her hours. Mr Grey submitted that Mr and Mrs Prentice were “transparently honest” people who were unlikely to attempt to use the system for gain.
74. Mr Grey submitted on the basis of both Mr and Mrs Prentice’s evidence that the Applicant’s life had changed since the 1992 incident. She had been seeing medical specialists since then, which was, he submitted, an objective measure of the fact that there had been an event with ongoing consequences. The Tribunal accepted from the medical evidence that Mrs Prentice was found, almost without exception, by the many doctors she attended, and as confirmed by radiological examinations which are before the Tribunal, to have degenerative changes in her cervical and lumbar spine. The Tribunal finds that the soft tissue injury of 5 November 1992 may have aggravated this condition, but finds from the evidence (Doctors Stalley and Hammond) that symptoms complained of were found to be within the range expected for a person of Mrs Prentice’s age and constitutionally degenerative back. The Tribunal accepted the evidence of Doctors Hammond, Spira and Olsen who considered that Mrs Prentice was exaggerating her condition. Dr Lewin opined that other life events had caused Mrs Prentice to continue having her symptoms. Both Dr Millar and Dr Roebuck said in oral evidence that how much of Mrs Prentice’s low back symptomatology was underlying, and how much was due to the 1992 incident, could not be determined. The Tribunal accepts the evidence of Dr Roebuck and the majority of doctors who examined Mrs Prentice, saying she could return to full-time work provided she was able to move around and not lift weights or perform repetitive tasks.
75. It was submitted by Mr Grey that Mrs Prentice had never claimed to be totally incapacitated. He submitted that what effects remained of the 1977 and 1988 accidents on Mrs Prentice’s degenerative spine were not clear, but since the 1992 accident she had returned to work for six hours a day and was only just able to cope with this.
76. The Tribunal noted that Dr Browne was the only doctor of those whose reports are before the Tribunal to relate the Applicant’s complaints to her 1977 incident. In light of the history before it, and the medical evidence, the Tribunal rejects the view that there were effects of the 1977 incident still evident in 1992. Indeed the evidence was that the effects of the 1977 incident had resolved before the time of the 1988 incident.
77. Mr Grey submitted that Mrs Prentice had a residual incapacity for work which was not high, but which was still real. A standard work day in Mrs Prentice’s occupation was 7 hours 21 minutes. She was thus claiming compensation for 1 hour and 21 minutes per day now, as well as for the appropriate periods during her graduated return to work. The Tribunal noted that Mrs Prentice had been on a graduated return to work but that she had still not returned to full-time hours at the time of hearing.
78. Mr Johnson submitted that the Respondent did not urge the Tribunal to find that nothing had happened in 1992, but rather that the incident of 5 November 1992 had been relatively minor. He submitted that Mrs Prentice’s varying accounts of the incident reflected some element of "wishful thinking", and that the Applicant was attaching greater significance to the incident than the Tribunal should accept. He emphasised that the Applicant had not claimed to have been knocked off her feet, extrapolating that there would therefore not have been any serious degree of force involved, and that she had walked back to work. Mr Johnson submitted that if the incident had been as significant as Mrs Prentice was now claiming, she would have been able to describe it more accurately.
79. Mr Grey submitted that the Respondent was trying to extrapolate from Mrs Prentice’s vagueness regarding the 1992 incident, a general inability to provide reliable evidence, especially with respect to her symptomatology. Mr Grey submitted that it was understandable to provide varying accounts of a traumatic event while trying to be quite truthful.
80. The Tribunal does not find surprising Mrs Prentice’s inability to recall exactly the events of the 1992 accident. It is not surprising for people involved in stressful incidents of this nature to have difficulty in recalling details. The Tribunal accepts that an accident occurred on that day. However, the Tribunal notes that there have been a great number of discrepancies in the histories which she has given subsequent to that event. Some of the doctors simply recorded that Mrs Prentice had been involved in an accident with a car on 5 November 1992. Dr Blum recorded that Mrs Prentice did an acrobatic somersault; Dr Hammond and Dr Grady recorded Mrs Prentice said she had vaulted over the car; Dr Harvey-Sutton recorded that the Applicant had “half hurdled”.
81. The Tribunal finds Exhibit R14, the medical notes of Dr D Beswick dated 5 November 1992, whose surgery the Applicant attended the day of the incident, of assistance as the most contemporaneous record in this matter. As to matters related to the accident, the doctor recorded as follows:

“Pedestrian in MVA - hit and run - 1:50 pm...Twisted round with left arm inward of headlamp all weight onto right leg by twisting - Unsure if hit
Pain: right ankle/leg/knee
left medial arm wrist shoulder neck
right wrist a little sore
Lower back sore
sore over left hip right arm hand diffuse
Shocked tender right foot
left shoulder posteriorly
spasm back/neck/leg”

82. The Tribunal notes that Dr Beswick recorded the incident with the words “unsure if hit.” The Tribunal concludes, taking into account Dr Beswick’s notes and Mrs Prentice’s consistent account of not having fallen, that the incident of 5 November 1992 was minor.
83. Mr Johnson, for the Respondent, made submissions regarding Mr Prentice’s evidence of the Applicant’s decrease in activity since 1992. The Respondent submitted that the Applicant’s being “less enthused with life” did not mean that the 1992 incident had had any lasting effect on her cervical/lumbar spine, and suggested that Mr Prentice was trying to assist his wife’s case. The Tribunal accepted these submissions, as well as Mr Johnson’s submissions that Mrs Prentice’s age and the fact she had become overweight may well be related to her outlook on life.
84. Regarding Mr Prentice’s evidence of bruising, the Respondent submitted that this evidence was inconsistent with Mrs Prentice’s general practitioner’s contemporaneous finding as well as with the evidence of the Applicant herself. The Respondent further submitted that Mr Prentice “backed away” from the claim of bruising when pressed.
85. Mr Grey submitted that, the issue of the bruising aside, the evidence given by Mr Prentice about the marked change in Mrs Prentice after the 1992 accident was largely unchallenged by the Respondent.
86. The Tribunal finds that the issue of whether Mrs Prentice suffered bruising is not material to whether she is suffering from ongoing sequelae to her injury in 1992. It is relevant only to the credit of Mr Prentice as a witness. The Tribunal noted that only one doctor's report before it recorded the Applicant as having suffered bruising, and that Mrs Prentice herself had not mentioned bruising in her evidence. The Tribunal accepts Mr Prentice’s evidence of changes in Mrs Prentice. It is noted however that a range of stresses, such as Mr Prentice's illness, the Applicant’s age, and financial worries have impacted upon Mrs Prentice during the time since the 1992 accident. The Tribunal is not able to find that these changes in her behaviour are causally linked to the 1992 accident.
87. The Respondent submitted that Mrs Prentice suffered from no incapacity beyond that which flowed from her underlying degenerative condition. It was submitted that there was no reason Mrs Prentice could not do a full-time job, as long as the duties did not offend the orthopaedic restrictions imposed upon her.
88. Mr Grey submitted that if the Tribunal accepted the Applicant’s statements of pain, then it would accept that she was working at the limits of her capacity. He submitted that Dr Lewin found Mrs Prentice was undergoing an emotional reaction to her pain. The Tribunal was mindful that Dr Lewin found an absence of psychiatric illness, and found Mrs Prentice’s description of her symptoms as of a “moderate nature.” He had recorded in his report Exhibit R4 that Mrs Prentice described her pain as “spasmodic, uncomfortable” and had also used the terms “stiffness and ache”.
89. The Tribunal has noted that the radiological and medical examinations of the Applicant showed that she has an underlying degenerative condition of cervical spondylosis and lumbar problems. It accepts Doctors Roebuck and Millar’s view that it was hard to separate the effect of the 1992 accident from a natural progression of the degenerative conditions, and that the 1992 accident may have rendered an asymptomatic spine symptomatic.
90. The Tribunal accepts the evidence of Doctors Hammond, Spira and Olsen, who found that the Applicant had exaggerated her condition and did not cooperate in the physical examination. Some inconsistencies were noted from the reports of these examinations, particularly when compared with the video which showed the Applicant moving quite freely, standing for a period of time up to half an hour, and bending over seemingly without restriction.
91. In relation to the surveillance video tendered by the Respondent, it was submitted for the Applicant that "people see what they want to see in such tapes". Mr Grey contended that everything in the video was consistent with someone who has a restriction, and that there was nothing in the video which was inconsistent with the medical assessments of Mrs Prentice. Mr Grey argued that Dr Stalley’s evidence supported this view. Mr Grey contended that the video depicted Mrs Prentice doing “what anyone capable of working 30 hours per week can do”.
92. The Tribunal accepted the Applicant’s submission that surveillance videos should not be given undue weight. However, the Tribunal finds that the video provides evidence of the Applicant’s ability to move in daily life. Relying upon its own observations and upon the evidence of Doctors Olsen and Hammond, the Tribunal finds that the Applicant was shown moving more freely in the video than was the case as reported in situations when she was consciously focusing on her condition.
93. As to whether the Applicant can work full-time; the Tribunal relies on the evidence of Drs Roebuck, Stalley, Chen, Harvey-Sutton and Hammond to say that she can work full-time, provided the Applicant does not do repetitive work and lift weights beyond approximately 3 kgs, and provided she can move around at will. There was no evidence before the Tribunal for it to find that Mrs Prentice would not be permitted to work full-time and observe these limitations.
94. The Tribunal cannot find from the evidence before it that the Applicant was incapacitated for work on and from 16 June 1995.

WHETHER MRS PRENTICE SUFFERED PERMANENT IMPAIRMENT WHICH IS COMPENSABLE

95. Mr Grey submitted to the Tribunal that Mrs Prentice was claiming for permanent impairment of the back and neck, the cervical and lumbar spine.
96. Mr Grey submitted on the basis of both Mr and Mrs Prentice’s evidence that the Applicant’s life had changed since the 1992 incident. She had been seeing medical specialists since then, which was, he submitted, an objective measure of the fact that there had been an event with ongoing consequences. In this regard, Mr Johnson submitted that Mrs Prentice was approaching her late fifties; that she was overweight and that her lack of enthusiasm for life and for going out or entertaining which had been put by Mr Grey, could not be attributed to the 1992 incident. The Tribunal accepted Mr Johnson’s submissions with regard to Mrs Prentice’s loss of zest for life.
97. Mr Johnson submitted that the 1977 and 1988 incidents did not lead to any permanent impairment, as the Applicant returned to full time work on both occasions. He submitted that by the time of the 1992 incident, Mrs Prentice was not restricted in the work she could do, and had indeed been promoted in her work. The Tribunal accepted this submission and agreed that any permanent impairment would have to be viewed as a result of the accident of 5 November 1992.
98. The Tribunal noted Mr Johnson’s submission that were permanent impairment of the lumbar or cervical spine to be found, that impairment would have to exceed the 10% whole person threshold to be compensable (Miles v Comcare [1995] FCA 1200; (1995) 129 ALR 427). He submitted this in connection with Comcare bearing liability for permanent impairment pursuant to section 24(7) of the 1988 Act.
99. Mr Johnson submitted that pain and suffering, in section 27 of the Act, could only be taken into account once section 24, relating to loss of movement, had been satisfied. He argued that Mrs Prentice’s loss of movement did not exceed the threshold level as identified in s 24 of the Act and pursuant to Table 9.6 of the Comcare Guide.
100. In addressing permanent impairment, Mr Grey submitted for the Applicant that the evidence of Dr Hammond be disregarded as it was “plainly inconsistent” with the other doctors’ accounts. Dr Hammond, it was submitted, had taken a view which he was not able to defend; namely, why he had applied such a large discount to the degree of impairment. The Tribunal was mindful that Dr Hammond had recorded some factual inaccuracies, such as a date, in his very extensive report, but did not consider it should disregard his findings because of that.
101. The Respondent submitted that Dr Millar’s evidence should be taken “with a grain of salt”, due to his comment in evidence that he had never seen a video which had changed his mind. Mr Johnson suggested that this indicated Dr Millar’s reluctance to change his opinion. Further, Mr Johnson argued that both Dr Millar and Dr Roebuck agreed that there was some degree of underlying pathology in the Applicant, and that neither had singled out the amount of impairment which had occurred as a result of the 1992 incident.
102. The Tribunal notes the amount of permanent impairment measured by the various doctors, and accepts the findings of Doctors Hammond, Spira and Olsen that Mrs Prentice exaggerated whatever difficulties she now experiences. The Tribunal also notes that Dr Stalley found that the Applicant suffered an impairment of less than 10%, and that while Doctors Millar and Roebuck found the Applicant’s impairment to be greater than 10%, they were unable to specify what proportion of this was attributable to the accident and what proportion was attributable to the Applicant’s underlying degenerative condition. On that basis the Tribunal cannot accept that she has suffered permanent impairment as a result of the incident of 5 November 1992. If she has any level of permanent impairment, then it is constitutional, below the 10% threshold, and is not compensable pursuant to the 1988 Act. To reach the 10% threshold, Table 9.6 of the Comcare Tables stipulates that the person must have a loss of half the normal range of movement for the cervical spine, and loss of less than half the normal range of movement for the lumbar spine. The evidence before the Tribunal and the video show unrestricted movement. The Tribunal finds that if Mrs Prentice in fact has restrictions, then they are due to the degenerative nature of her spine.
103. The Tribunal finds that the Applicant suffered a soft tissue injury on 5 November 1992 which caused her to be incapacitated for work for a finite period during which she was supported by rehabilitation, and which had well ended by 16 June 1995. The Applicant suffers no compensable permanent impairment.

CONCLUSIONS

104. The Tribunal has carefully considered all the medical reports and other evidence before it, and concludes that the Applicant had recovered from injuries relating to the incident of 5 November 1992. Rather, a possible underlying degenerative condition, the car accident in 1993, understandable emotional reactions to stressful events in life and the general vicissitudes of aging are all likely causes of the Applicant’s complaints. Further, the Tribunal finds that the Applicant’s reluctance to undertake work on a full-time basis arises at least in part from her domestic arrangements relating to convenience of transport, and not to her medical condition. Accordingly, the Tribunal finds that the Applicant is able to work a full-time week and has been able to do so on and from 16 June 1995.
105. The Tribunal is unable to find that Mrs Prentice is suffering a permanent impairment of 10% arising from the incident of 5 November 1992 pursuant to the Comcare Guide. The Tribunal finds that the Applicant does not suffer permanent impairment which is compensable pursuant to the terms of the Compensation (Commonwealth Government Employees) Act 1971, or the Safety Rehabilitation and Compensation Act 1988.
106. The Tribunal notes that the provision of medical expenses to the Applicant ceased on and from 25 May 1995. There was no evidence before the Tribunal that Mrs Prentice requires any treatment or medication for any work-related complaints which would lead to reimburseable expenses. The Tribunal affirms that part of the reviewable decision which dealt with the cessation of medical expenses on and from 25 May 1995.
107. The Tribunal affirms the entire decision under review. There is thus no discretion to award costs.
     

I certify that this and the 29 preceding pages are a true copy of the decision and reasons for decision herein of Ms G Ettinger, Senior Member, Dr M E C Thorpe, Member and Ms J A Shead, Member.

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

Associate

Date/s of Hearing 10 September 1996; 17 March 1997; 18 March 1997

Date of Decision 12 June 1997

Counsel for the Applicant Mr L Grey

Solicitor for Applicant Carroll & O’Dea     

Counsel for the Respondent Mr G Johnson

Solicitor for the Respondent Australian Government Solicitor