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[2003] VCAT 1578
plaintiff. The TAC's decision that the applicant had a 22% whole person impairment was set aside and substituted with a decision that she has a 23% whole person impairment; parties have liberty to apply...
VCAT reviewed a TAC decision awarding 22% whole person impairment to Mrs Glenn for injuries from a 1992 motor accident. After hearing evidence about later spinal fusions (1999 cervical, 2001 lumbar), a 1994 fall from a stool, and psychiatric injury, the Tribunal found cervical impairment wholly attributable to the 1992 accident (9%), apportioned 25% of lumbar impairment to that accident (6%), and accepted a 10% psychiatric impairment. Combining these produced 23% whole person impairment. The Tribunal clarified proper use of the AMA Guides (2nd ed.), rejected combining radiographic ankylosis (Table 46) with range-of-motion percentages, endorsed Table 53(B3) for operated discs with residuals, and applied the Combined Values Chart. A question about rounding was referred for further consideration but left open after legislative change [97], [35]-[49], [80]-[96].
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Mrs Carolyn Glenn was injured in a motor vehicle collision on 3 January 1992. She lodged a claim with the Transport Accident Commission (TAC) and, in 1996, the TAC determined she had a 22% whole person impairment under the Transport Accident Act 1986 (s.46A) and the AMA Guides to the Evaluation of Permanent Impairment (2nd ed.). Mrs Glenn sought review. Subsequent events complicated causation and impairment assessment: in December 1994 she suffered a fall from a bar stool at the Star Hotel; in 1999 she underwent anterior cervical discectomy and fusion at C4-5; and in 2001 she underwent L4-S1 postero-lateral and interbody fusion. The VCAT hearing (21–28 July 2003) examined whether the impairments claimed were causally attributable to the 1992 accident, how to apply the Guides after surgical fusion, whether the disc table (Table 53) could apply after disc excision, appropriate apportionment given the 1994 fall, psychiatric impairment under Chapter 12 of the Guides, and the procedural question of whether the Tribunal could 'round' final impairment outcomes. On 5 November 2003 Deputy President A. Coghlan set aside the TAC decision and substituted a 23% whole person impairment, leaving an issue about rounding open for further application [1]-[2], [6]-[9], [97], [101]-[106].
The Tribunal's reasoning follows several strands grounded in the text of the AMA Guides (2nd ed.), the contemporaneous medical record, expert opinion, and principles for weighing conflicting evidence.
Assessment after definitive treatment. The Tribunal applied the Guides' instruction that permanent impairment is to be judged after treatment [22]. Because Mrs Glenn had undergone spinal fusions, the Tribunal measured impairment post-operatively and relied on post-fusion clinical findings and examinations [22], [32].
Correct application of the Guides' tables. The Guides provide alternative methods for assessing ankylosis in the spine: (1) motion measurement via goniometer with reference to motion tables (Tables 47-49 for cervical), or (2) radiographic determination with reference to Table 46. The Tribunal held these are alternatives for the same impairment and should not be combined: a radiographic Table 46 percentage could not be added to range-of-motion percentages derived from the motion tables [35]-[38]. This led the Tribunal to reject Mr Dooley's combination of a 2% radiographic ankylosis rating with separate loss-of-motion allowances.
Table 53 can apply post-excision where residuals remain. The Tribunal carefully read Table 53(B) and its footnote and concluded the Guides contemplate that an operated disc can be rated under B3 where there are residuals; the footnote expressly permits combination of B3 with residuals such as ankylosis or abnormal motion. Thus removal of the disc did not preclude a 5% rating under B3 in appropriate circumstances [42]-[44].
Using the best-observed ranges of motion. Where examiners recorded variable ranges of motion across different assessments and video surveillance suggested fuller movement in unobserved contexts, the Tribunal used the best ranges of motion observed by clinicians post-fusion to determine permanent restriction, thereby guarding against aberrant low readings in a single examination [44]-[48], [82]-[83].
Apportionment grounded in contemporaneous records. For the lumbar spine the presence of a later fall required apportionment. Experts gave widely varying apportionments; the Tribunal preferred the more conservative 25% apportionment to the 1992 accident (adopted from Mr Dooley and conceded by Mr Klug), reasoning that apportionment is empirical and must be guided by contemporaneous records and treating doctors' statements rather than speculative reconstructions [75]-[81].
Psychiatric impairment accepted on expert and treating evidence. The Tribunal accepted the psychiatric impairment assessment of 10% not secondary to physical injury, based on longitudinal psychiatric reports and corroborating treating psychologist documentation, indicating the Tribunal was prepared to accept non-physical psychiatric impairment where supported by treating/expert evidence [88]-[96].
Applying these approaches, the Tribunal calculated 9% for the cervical spine (5% for disc derangement under Table 53 plus 4% loss of motion), 6% for the lumbar spine attributable to the transport accident (22% lumbar impairment overall with 25% apportioned to the transport accident), and 10% psychiatric, combining to 23% whole person impairment using the Combined Values Chart [43], [47]-[48], [83]-[86], [97].
Before this decision, practitioners and decision-makers sometimes adopted differing applications of the Guides when surgery had removed the disc: some thought Table 53(B3) could not apply after disc excision and preferred radiographic ankylosis assessments (Table 46) or motion-only approaches. This decision clarified two points:
It reinforced that Table 46 (radiographic ankylosis) and motion-based tables are alternative methods and must not be combined; combining radiographic ankylosis percentages with motion percentages is impermissible [35]-[38].
It authorised application of Table 53(B3) even where the disc has been removed, if residuals remain and the Guides' footnote criteria are met; that allows a 5% disc derangement assessment to be combined properly with residuals such as loss of motion [42]-[44].
The Tribunal also provided practical guidance about selecting the best-observed range-of-motion measurements across multiple examiner reports, promoting use of the most reliable post-operative measures rather than averaging low outlier values [47], [82].
The decision also highlighted procedural uncertainty about tribunal power to round whole person impairment outcomes, a question of law referred to the Supreme Court and cited to a recent appellate decision (Connelly), but left unresolved at VCAT due to intervening legislative changes [98]-[106].
Guides alternative methods for ankylosis (para 35):
Table 53 combination footnote (para 42):
Best ranges of motion approach (para 47):
Apportionment is empirical (para 77):
Disposition (para 97):
In such fact patterns, this decision instructs tribunals and experts to: select one method for ankylosis measurement; recognise Table 53(B3) can apply post-operatively when residuals exist; rely on the best-observed range-of-motion measurements post-treatment; and ground apportionment on contemporaneous records and treating-expert reasoning.
This decision itself cited Connelly v MMI Workers Compensation (Vic) Ltd [2003] VSCA 60 concerning rounding principles [99]. The Tribunal referred a question of law to the Trial Division about the Tribunal's power to round impairment findings but adjourned that reference sine die after legislative changes (the Accident Compensation and Transport Accident (Amendment) Bill) altered the practical framework for rounding at VCAT [101]-[106]. Practitioners should therefore treat the Tribunal's observations on rounding as procedural and interlocutory: an important flag that the issue required higher court resolution at that time, but practically affected by subsequent statutory amendment. Absent further appellate authority, the substantive Guides-related holdings (Tables 46 vs 53, best observed range of motion, empirical apportionment) provide persuasive guidance for tribunal and expert practice.
Rounding discretion: The Tribunal sought a Supreme Court ruling on whether it has a power to round whole person impairment findings, and whether rounding may be exercised without prior submissions once primary findings are made [101]-[105]. That question was left unresolved at VCAT because of legislative change; its residual legal status depends on statutory detail and any subsequent case law.
Boundaries of Table 53(B3): While the Tribunal accepted that an operated disc with residuals can be rated under B3, there remains the question of the precise evidentiary threshold to demonstrate 'residuals' tied to the disc pathology as opposed to purely fusion-related motion loss or non-discogenic pain. Parties should ensure expert reports articulate the pathophysiological basis for B3 ratings post-excision.
Reliance on 'best observed' motion measures: The Tribunal preferred the best observed post-fusion ranges of motion. Future cases may test the limits of that approach, for example, whether brief surveillance evidence showing freer movement should trump consistently low formal clinical measures, and how to weigh potential functional overlay or deliberate underperformance in examinations.
Apportionment methodology: The Tribunal described apportionment as empirical and non-mathematical. Lower tribunals and appellate courts may be called upon to refine principles for apportionment where contemporaneous records are equivocal, particularly where treating practitioners provide divergent, non-quantified opinions.
Interaction with legislative reform: The decision’s procedural aspects (rounding and referral) were overtaken by the Accident Compensation and Transport Accident Amendment Bill. Practitioners should check the current statutory framework to determine whether the rounding issue persists and how VCAT's powers have been adjusted.
Practical takeaways: when advising clients or preparing expert evidence in transport accident matters involving surgery, ensure experts give: (a) clear choice of Guide method and explain why one method is preferred; (b) explicit reasoning when applying Table 53 after disc excision; (c) a clear account of contemporaneous treating records supporting causal attribution and any apportionment; and (d) well-documented, reliable measurements of range of motion with attention to the 'best observed' values post-treatment.
General List - transport accident - Guides to the Evaluation of Permanent Impairment - Second Edition - Chapters 1 and 12 - rounding - referral of question of law to Trial Division of Supreme Court of Victoria - Transport Accident Act 1986 s.46A, Victorian Civil and Administrative Tribunal Act 1998 s.96
1. The decision of the respondent that the applicant has a 22% whole person impairment is set aside and substituted with a decision that she has a 23% whole person impairment.
2. The parties have liberty to apply within 21 days of the date of this order on the issue of rounding.
For Carolyn Glenn: Mr E Delany of counsel instructed by Maurice
For Transport Accident Mr D Masel of counsel instructed by TAC Law
1. Mrs Glenn, the applicant in these proceedings, was injured in a transport accident on 3 January 1992.
2. She completed a claim for compensation which was witnessed on 31 January 1992 and lodged with the Commission on 4 February 1992.
3. In the claim form she described that she had been driving her car in Petit Street, Sale, when an oncoming car came around a bend at speed, braked, skidded and crashed into the right hand side of her car. It was raining at the time. She listed her injuries as "whiplash, head, neck and back and lower back injuries, migraines, eyes blurring".
4. She attended her general practitioner Dr Monash that day. His clinical records record the following :
5. The report of an x-ray of her cervical spine carried out on 8 January 1992 was as follows :
"CERVICAL SPINE (including functional views) - 8.1.1992
There is a congenital blocked vertebra of C5 and C6. The overall vertebral alignment appears normal, and there is normal mobility of flexion and extension without instability. The disc spaces are generally well preserved (with no significant disc space at the blocked vertebra) and the bony inter-vertebral foramina appear normal. No acute bony or soft tissue abnormality is seen. A prominent right bony cervical rib is present and a rudimentary left cervical rib is seen".
6. The focus of her treatment after that was related to problems with neck, shoulder and arm pain and she had a variety of treatments. In December 1994, she had a fall from a stool in the Star Hotel and sustained further injury.
7. On 18 April 1996, the Commission made a determination pursuant to s.46A of the Transport Accident Act 1986 (the TA Act) that Mrs Glenn had a whole person impairment of 22% as a result of the accident. Mrs Glenn applied for review of that decision on 6 February 1997.
8. In 1998 her treating doctor referred her to specialists for her neck and back problems. In September 1999, Mr Peter Dohrmann, neurosurgeon, performed an anterior cervical discectomy and fusion at C4-5. Findings on operation were consistent with disc degeneration at that level. In July 2001, Mr Roy Carey, orthopaedic surgeon, performed a L4-S1 postero-lateral and interbody fusion using internal fixation. According to the surgeons, she recovered well and uneventfully from both operations.
9. Over seven years has elapsed since the Commission's decision was made and eleven since the accident. The matter has taken an unusually long time to finally come on for hearing.
10. The hearing commenced before me on 21 July 2003.
11. Mrs Glenn relied on two witness statements filed. She gave evidence and was cross-examined. Her first statement was made on 16 October 1997 and her second in 2003. A number of witnesses were called on her behalf; medico-legal witnesses and her husband. Those witnesses' reports or statements of evidence were tendered in evidence and they were cross-examined. The Commission called a number of medico-legal witnesses. Their reports were tendered in evidence and they were cross-examined. Both parties tendered additional material and made submissions.
12. In her more recent statement made in 2003, Mrs Glenn claims she sustained injury to her back, neck and left shoulder resulting in neck pain, blurred vision, nausea and dizziness, headaches, pain in both upper limbs, particularly her left arm and chronic post traumatic stress disorder. In her earlier 1997 statement, she made no reference to back injury. She claims permanent impairments in relation to her cervical spine, her lumbar spine and psychiatric impairment.
13. The transport accident was over 11 years ago. The effluxion of time itself has made the teasing out now of just what injury Mrs Glenn suffered in the transport accident and how it is causally linked to the permanent impairments now claimed, following the surgical procedures, extremely difficult.
14. Matters were further complicated by a second incident which occurred in December 1994 when Mrs Glen fell whilst at the Star Hotel when the bar stool she was sitting on broke.
15. Nor have I been assisted by the different histories Mrs Glenn has given to different practitioners at different times, whatever her reasons for doing so. It is well accepted that a full and accurate history is vital to a medical practitioner to assist in giving opinions related to causation, impairment and apportionment.
16. Mr Masel, counsel for the Commission, submitted that Mrs Glenn was a witness whose evidence could not be relied upon unless corroborated by independent contemporaneous records. In support of his submission he referred to the following matters :
"(a) The applicant's evidence before this Tribunal showed her to purport to recall (and embellish) matters she perceived helpful to her cause, and to deny or claim to forget matters which might be seen unhelpful to her cause. She gave disingenuous histories to this Tribunal and to doctors, and did so on a number of occasions. She showed a 'selective memory' and a propensity to seek to advance her cause rather than to recount the truth.
(b) She was further prone to substantial change in her evidence in the course of cross examination.
(c) For example, on the issue of the relative severity of the neck and low back after the MVA and before the Star Hotel, she maintained the low back was the more significant, then they were equally significant, then finally agreed after being pressed a number of times and in the light of independently recorded matters that the neck was the significant problem prior to t he Star Hotel.
(d) Her evidence concerning alleged employment in the month preceding the MVA (designed to show the injuries sustained in the accident immediately affected her ability to work) was clearly at odds with a contemporaneous document (the TAC claim form) and subsequent histories to at least Dr Stern (19/9/94), Mr Klug (5/10/94) and Mr Dooley (1/8/97).
(e) The history given to Mr Guest (especially on 5/4/95, shortly after the Star Hotel, and later conforming past histories) and to other examiners (eg Mr Strangward on 12/9/96, Mr Dooley on 1/8/97) by which, after the stool collapse at the Star Hotel she denied accidents or injuries other than the MVA was clearly false, and her explanation proffered to Mr Skandarajah (namely, that the car accident was so long ago she could not remember it and that is why she did not mention it in 1996) must be an out and out lie, or alternatively, her present evidence relating to the MVA and its sequelae is an out and out lie.
(f) Her witness statements are particularly unreliable. She was apparently prepared to adopt what is put to her even if she does not fully understand the words used - her condition was 'exasperated')".
17. Mr Delany, counsel for Mrs Glenn, submitted that I should look at her evidence in the context of a person who has over more than eleven years seen a multitude of treating medical practitioners and practitioners for medico-legal purposes. Further that during those years, she has undergone a variety of treatments and any criticism of her that she promoted her own interests or told the practitioner what suited her, should be considered in that context. Further, he submitted, that were she really out to promote her own interests or say what suited her, how did one then explain why on 1 August 1997, on the very same day, she did not tell Mr Dooley about the fall from the bar stool but did tell Mr Klug.
18. It is true that Mrs Glenn has given different histories to different practitioners at different times. I accept that it is very difficult to recall clearly events which took place so long ago, and especially to recall what one might or might not have told a medical practitioner on a particular day.
19. In her case, with so many different treaters and medico-legal examinations over the years, one's recollection would be hazy and confused. In cross-examination, Mrs Glenn was at first adamant about her history but became less sure, rightly in my view. Secondly, her concessions in cross-examination that she could not remember what she had or had not told the practitioners, demonstrated to me that she was prepared to be more realistic. However, she did have a tendency to ask for questions to be repeated more than twice before answering, leaving me with the impression that she was considering what answer to give, to best promote her own case. For example, before finally answering that something was too far back and she could not remember, she had to have repeated three times a question about why she had not told Dr Nicholson in a consultation, after the fall from the bar stool, that she had earlier hurt her back, as she claims, in the transport accident.
20. In all the circumstances, I approach her evidence with caution and so far as determining issues of causation and apportionment, I place greater weight on records made contemporaneously than on Mrs Glenn's recollections and assertions.
2l. Mrs Glenn claims permanent impairments in relation to her cervical spine, her lumbar spine and psychiatric impairment.
22. Impairment assessments have been made according to the 2nd Edition of the Guides to the Evaluation of Permanent Impairment. I agree with Mr Masel's submission, with which Mr Delany did not take issue, that under the Guides permanent impairment is to be judged after treatment. In Mrs Glenn's case, this is relevantly after her spinal fusions.
23. Mrs Glenn claims impairments under Chapter 1 of the Guides for loss of range of motion in her cervical spine and for disc derangement of the C4-5 disc under Table 53 B3.
24. In Mrs Glenn's case, her cervical fusion is the foundation of her impairment and I need to determine what part the transport accident had in bringing about that fusion and whether any, and if so what permanent impairment, flows from the fusion.
25. Mr Delany submitted that I should be satisfied that she had no pre-existing injury to her neck and that her injuries were related to the transport accident. He referred to notes of Dr Monash, the general practitioner, and to the medication prescribed and x-rays taken at the time of the accident.
26. Mr Masel submitted that I should not be satisfied that the impairment of the cervical spine is caused, or wholly caused, by the transport accident. Alternatively, if I were satisfied it played some part in her present impairment, an apportionment is required so as to disallow that part which is not referable to a pre-existing condition or referable to exacerbation caused by the incident at the Star Hotel.
27. Mr Masel drew attention to Mrs Glenn's pre-existing congenital fusion at C5-6; the presence of cervical ribs particularly on the left and complaints prior to the accident of neck and arm symptoms. He suggested that there was a transitory increase in neck symptoms in the month following the accident and then a return to her pre-accident pattern with a further increase in symptoms about one year after the accident. He submitted it was not at all clear that increased symptoms was causally related to the accident. He drew my attention to an alternative diagnosis of thoracic outlet syndrome not related to the accident which could account for the increase in symptoms in 1994. Mr Masel submitted that after the increase in symptoms following her fall from the bar stool in December 1994, the increase in symptoms claimed needed to be assessed in light of her psychiatric condition which could tend to cause an exaggeration of symptoms assuming she were truthful.
28. A careful perusal of the contemporaneous notes from Dr Monash's clinic reveals complaints of neck pain and pain in the left arm in July 1984, pain in the back of the neck and head in October 1985 and left pectoralis major muscle pain and pins and needles in the hands in July 1991.
29. On 3 January 1992, Mrs Glenn presented with the complaints set out earlier in these reasons following the transport accident. Her complaint has consistently been of experiencing at that time a sharp pain in the cervical region. She was treated with analgesics and referred for x-ray.
30. On 10 January 1992, she sought additional treatment from a naturopath. Later in the year, Dr Monash referred her for physiotherapy and those records indicate she had treatment on her neck between November 1992 and January 1993. Later in 1993, she was referred to Mr Pease, spinal surgeon, specifically for problems related to her neck symptoms and to Mr Jensen and Mr Cook, although we have no reports from them. There are suggestions and opinions that she may have been suffering from thoracic outlet syndrome but there were differences amongst the practitioners about whether or not such a condition had been properly diagnosed.
31. Mr Pease, in his letter to Dr Monash dated 18 November 1993 tendered in evidence, relates that Mrs Glenn experienced a sharp pain in the neck area and that since that time there has been a steady downhill progression, despite physiotherapy and medication. He thought she had an internally disrupted C4-5 disc noting her x-rays and that she had a congenitally fused vertebra at C5-6, and osteophyte formation. He thought she would be a good candidate for an anterior cervical fusion at that level. As it turns out, it was the C4-5 disc that Mr Dohrmann operated on in 1999. In light of the immediate complaint of sharp pain and the pattern of ongoing treatment, even if some may have been related to concerns about a thoracic outlet syndrome, the consistent complaints since the accident and the eventual fusion at C4-5, I am satisfied Mrs Glenn's complaints relating to neck pain results from injury in the accident which led to the need for fusion and its sequelae. In being so satisfied, I also rely on Mr Dohrmann's opinion as to its relationship to the transport accident. I note that he apportioned 80% being attributable to the transport accident and 20% to the fall from the stool, but having considered all the evidence in relation to that later incident, I am satisfied all her cervical impairment is related to the transport accident.
32. Following the fusion in 1999, Mrs Glenn claims she has restriction in motion of the neck, and other pains.
33. The Guides allow impairments for the cervical spine to be assessed under a number of Tables in Chapter 1. In Mrs Glenn's case, the practitioners have assessed impairments under Table 46 for ankylosis, Tables 47, 48 and 49 for loss of range of motion and under Table 53 for disc derangement. Not all the practitioners have made an assessment under Table 46 or 53 and the assessments for restriction of motion under Tables 47, 48 and 49 differ.
34. Mr Dooley has assessed Mrs Glenn under Table 46 for ankylosis based on a radiological assessment. I note Mr Southby has also assessed her under Table 46. Mr Dooley has then proceeded to give her an impairment assessment for loss of range of motion, because he thought it was fair to do so. In his evidence in chief, he explained that if she had not had surgery with fusion, he would have used Table 53 which allows for disc derangement. He explained that because the disc was "excised and obliterated" and she had a one level fusion, he considered she was not entitled to be assessed under Table 53.
35. The Guides at p.47 say the following about ankylosis of cervical, thoracic and lumbar regions :
"The examiner may choose to determine impairment of the spine due to ankylosis of the cervical, thoracic or lumbar regions by one of two methods: (1) using the goniometer and referring to the appropriate table involving the region of the spine being tested (see below), or (2) using appropriate radiographs to determine the number and position of the vertebrae with ankylosis and referring to Table 46".
36. The examiner is clearly offered an alternative. If one chooses the first, one uses the goniometer and is referred to the appropriate table in the region tested. For the cervical spine they are Tables 47, 48 and 49. Those Tables are all headed "Impairment Due to Abnormal Motion and Ankylosis of the Cervical Region". Alternatively, using radiographs to determine the vertebrae with ankylosis, the examiner is directed to refer to Table 46, which is headed "Impairment of Cervical, thoracic and Lumbar Regions Due to Ankylosis, Determined By Radiographic Methods".
37. Mr Dooley has used the second method. Using radiographs he has referred to Table 46 and assigned a 2% whole person impairment for "C4-5 ankylosed in good position".
38. I agree with Mr Masel's submission that when one adopts the radiographic approach, because it is an alternative for assessing the same thing, it is not permissible to combine the radiographic assessment of 2% with loss of range of motion.
39. A number of practitioners have assessed Mrs Glenn for an impairment under Table 53 B3. Mr Dooley stands out as the only practitioner who has not, having assessed her under Table 46 for ankylosis of the cervical spine which he then proceeded to combine with her restriction of motion. I note Mr Wilde in his evidence in chief clarified that he had not given an impairment as he was not certain that a disc was her main pain generator. Others have given evidence that Mrs Glenn has residuals being loss of range of motion.
40. In support of Mr Dooley's view that no allowance under Table 53 was appropriate, Mr Masel submitted :
"It is not appropriate to make allowance under Table 1.53(b) as -
(i) there is no longer a disc which is the cause of any symptoms - the disc has been removed;
(ii) in any event, the only residuals to which any examiner was able to refer post operation was the limitation in ROM. It is not (and cannot be) shown this limitation of movement relates to the disc (which has been removed). It is not a 'residual'. There are no neurological sequelae. Any pain cannot be discogenic, as the disc has been removed".
41. In contrast Mr Klug had no difficulty making an allowance under Table 53 nor did Mr Dohrmann.
42. Table 53 is headed "Impairment due to other Disorders of the Spine". Clause B is headed "Intervertebral Disc Lesions". Set out under Clause B are three disorders in respect of which percentage impairments are given. They are :
1. Non-operated, clinically established disc derangement
3. Operated or n on-operated, clinically established
* This impairment rating should be combined with the appropriate value(s) for residuals based on :
(a) Ankylosis (fusion) in spinal area or extremities;
(b) Abnormal motion in spinal area or extremities;
(d) Spinal cord injuries, with resulting neurologic impairment (Chapter 2);
(e) Spinal nerve root injuries, with resulting neurologic impairment (Chapter
(f) Any combination of the above, using the Combined Values Chart".
43. The Table is about disc lesions. It contemplates derangement without residuals, disc removed without residuals and disc derangement with residuals. Mr Masel submitted that because the disc is removed, it cannot be the cause of any symptoms, and thus cannot be placed in Clause 3. I do not accept his submission. The asterisk beside B3 contemplates that an impairment under B3 can be combined with any combination from the footnote list (a) to (e), where (a) is "ankylosis (fusion) in spinal area or extremities" and (b) is "abnormal motion in spinal area or extremities", two ways of measuring the same phenomenon. The reference to ankylosis in (a) would indicate that even if there has been a fusion there can be disc derangement. I do not accept that the removal of a disc cannot constitute a disc derangement such as to bring it within Table 53 B3. I find that she has a 5% impairment under Table 53 for her cervical spine related to the C4-5 disc.
44. The measurement of her restriction has not been without its difficulties. She has presented to doctors as having very limited motion and to others not so restricted. Some practitioners have suggested there may have been some functional component to her presentation, for example Mr Gurry in his report of November 1997. Others thought she was quite straightforward, for example Mr Wilde. One might question her presentation because video surveillance in October 1997 and April 1998 over several days, which I have seen and which was tendered in evidence, reveals that when she is unaware she is being observed, she appears to move relatively freely compared with how she presented to practitioners in a formal examination setting at about that time.
45. Her impairment is to be judged after the fusion. Relevant assessments have been made by Mr Dooley, Mr Southby, Mr Dohrmann, Mr Wilde and Mr Klug.
46. On the very same day, 30 April 2003, she was examined at the request of the Commission by Mr Dooley and Mr Klug. Mr Dooley found her markedly restricted. He clarified in evidence in chief and in cross-examination that he did not accept her presentation was accurate, noting that she would not move in any direction at all, such that he could not conduct a meaningful assessment. Mr Klug in contrast, was able to conduct an assessment finding a total of 14% for restriction of motion similar to Mr Dohrmann's findings in May 2003. On other occasions, she has had less restriction. In September 2000, Mr Dooley found a total of 4%. In August 2002, Mr Southby whose report was tendered in evidence and to whom she was referred by her solicitors for medico-legal purposes, found a total of 6% restriction. In December 2002, Mr Wilde found a total of 11%.
47. I have to be satisfied about her permanent restriction of motion. When she has been observed moving more freely than she presents in formal examination, when she has presented to different practitioners at different times demonstrating different ranges of motion, there can be any number of reasons for this. It could be that she was having a bad day, that she was subconsciously unable to move or was deliberately moving as little as possible to promote her own case. Whatever the reason, I agree with Mr Masel that it is appropriate to look to the best range of motion attained by an examiner in relation to each of the relevant movements in order to assess her range of motion of her spine. The best ranges of motion in each of the relevant movements were those attained by Mr Dooley on 8 September 2000. I find she has a 4% restriction of motion of the cervical spine.
48. Combining this loss of motion of 4% with the 5% impairment for the disc derangement under Table 46, as Table 53 instructs one to do, I find she has a 9% whole person impairment of her cervical spine. I note that using Table 53 and combining it with loss of motion produces a better outcome for Mrs Glenn than it would were I to use Table 46 for ankylosis.
49. I am not inclined to make any apportionment in relation to the cervical spine. In doing so, I rely on the matters I have already canvassed in paragraph 31 of these reasons.
50. Mrs Glenn claims impairments under Chapter 1 for loss of range of motion in her lumbar spine and for disc derangement of the L4-S1 discs under Table 53 B3.
51. In July 2001, Mr Roy Carey performed an L4-S1 postero-lateral and interbody fusion. As with her cervical spine, I need to determine what part the transport accident had in bringing about that fusion and what permanent impairment flows from it attributable to the transport accident.
52. Mr Masel submitted that any injury to Mrs Glenn's lower spine as a result of the transport accident was of a minor musculo-ligamentous nature and is not shown to be a cause of the condition which led to her multi-level discectomy and fusion. He referred to the report of Mr Pease who examined Mrs Glenn in November 1993, before the incident when she fell off the bar stool, and his findings that she had a full range of motion of her lumbosacral spine. Alternatively, he submitted that if any apportionment were to be made, only the smallest proportion should be allowed in relation to the transport accident.
53. Mr Delany submitted that matters concerning Mrs Glenn's lumbar spine were more complex than those related to her cervical spine. He went through the history of her complaints about her back and submitted they were aggravated by her fall from the bar stool. He submitted that I should accept her lumbar condition was attributable to the transport accident in the absence of any pre-existing pathology.
54. Mr Delany relied on Mr Wilde's assessment for loss of range of motion and assessments under Table 53 B3 for two discs as assessed by Mr Klug and Mr Southby. He urged me to accept the apportionments related to the transport accident proffered by Mr Wilde, Mr Carey and Mr Dohrmann of 70%, 85% and 80% respectively. I put to one side Mr Dohrmann's appointment because it only concerned the cervical spine.
55. I agree with Mr Delany, that matters concerning Mrs Glenn's lumbar spine are more difficult. One of the reasons they are more difficult is because Mrs Glenn had a separate accident when a bar stool she was sitting on in the Star Hotel broke and she fell on to her side on the ground.
56. Until that event, the objective facts reveal that she had had some problems before the transport accident with pain in her right buttock and down the right leg but with no specific pain in the back. Her treating doctor, in clinical notes for 11 December 1986 recorded that she complained "it hurt to stand up". Further, according to the report of the occupational therapist Ms Russell who assessed Mrs Glenn in June 1993 for daily living tasks and pain management, Mrs Glenn "also complains of low back pain, and although she did have some back problems prior to her accident, she feels this has worsened".
57. Dr Monash on 3 January 1992, the day of the accident, included in his notes a reference to "lower back". On 9 January, he notes "aches in back. Limited restriction". Whereas he referred her for x-rays related to her neck, he did not do so for her lumbar spine, leading to the inference that her back was not her major complaint.
58. On 10 January 2002, she visited a naturopath, Mr Ross. His notes are of little assistance. The entry reads "car accident on 3/1/92. cerv. - whiplash" with a diagram of the spine. On the next line is the word "lumber" (sic).
59. Thereafter, Mrs Glenn consulted Dr Monash's clinic on 31 January, 15 February, 3 June and 29 June 1992. There is no mention of any symptoms at all related to the accident in the clinical notes relating to those consultations.
60. The next mention of accident related complaints is at a visit on 6 August 1992. With notes about various other complaints, the doctor also notes complaints of several weeks of pain in the left forearm into the shoulder; slight pain on moving shoulder; a reference to "whiplash" in January 1992 and neck pain, there is no reference to the back.
61. She was sent for physiotherapy treatment at the Gippsland Base Hospital. She had treatment from 29 November 1992 until 19 January 1993 for complaints of "retro-orbital and occipital headaches, neck, shoulder and left arm pain" following a "whiplash 8/12 previously". There is no reference to any back complaint. Apparently treatment continued until 11 May 1993. Just what that treatment consisted of, we do not know. All we know is that on 28 May 1993, Dr Monash's clinical notes refer to "lower back, very painful, physio".
62. From January 1993, her complaints concerning her neck, arms and shoulders increase and thereafter there is considerable specialist referrals for those complaints, but nothing for her back.
63. In July 1993, Dr Monash notes "physio at TAC rooms; Head/neck/back; ? acupuncture". Thereafter, there is a referral to Mr Pease. His report to Dr Monash essentially relates to cervical spine issues. So far as her back is concerned, he reports :
"In addition to her neck she complains of low back pain with difficulty bending and vacuuming. Examination of the lumbar spine is normal, there is no evidence of mechanical insufficiency".
64. In March 1994, she was referred to Mr Jensen who apparently diagnosed a thoracic outlet syndrome and in June 1994 to Dr Cook. I do not have the benefit of any reports from those specialists.
65. In June 1994, Dr Monash sent a report to Mrs Glenn's solicitors about the transport accident. In that report he listed her principal problems. The list made no reference to any problem concerning her back.
66. In October 1994, she was examined for medico-legal purposes for the Commission by Dr James Guest. He includes in her "present complaints" pain in the low back with occasional radiation to the legs. He was unable to complete formal examination as Mrs Glenn was not well.
67. On December 20, 1994 she had the accident at the Star Hotel. On 10 December, her general practitioner at Dr Monash's clinic, notes :
68. The next visit to that clinic is in April 1995. There are notes of complaint about her back and neck, and a reference to suing the Star Hotel. Proceedings have been issued in the County Court and that matter is still unresolved.
69. In the meantime, Mrs Glenn had visited Dr Nicholson at another practice. On 3 February 1995, Dr Nicholson noted that she was in an
Has whiplash and problems with her shoulders. Has recently hurt her lower back when she sat on a chair at the pokies and it collapsed. Is attending Todd".
70. Dr Todd is a chiropractor. He reported that when Mrs Glenn presented on 24 December 1994 :
"She was complaining of lower back pain extending into the right hip and buttock and down the back of the upper part of the thigh. Mrs Glenn described the pain as sharp in nature and appeared to be worsening since its onset after an incident at the Star Hotel on the 14 December 1994".
71. His consultation notes refer to that problem as the "chief complaint". Included under "other complaints" are her neck, arm and numbness and pins and needles as the result of whiplash in a motor accident three years ago.
72. In March 1996, when examined, at the request of the insurer, by Mr Skandarajah for medico-legal purposes concerned with the incident at the Star Hotel, Mr Skandarajah reports her as denying any previous symptoms related to her back.
73. It may well be that she may have denied to Mr Skandarajah a previous back symptom because she was endeavouring to promote injury caused by the fall from the stool which was the subject of separate legal action.
74. Whatever her reasons for giving the histories above, her back caused her ongoing problems such that she was referred to Mr Carey in 1998 and subsequently had the two level fusion in 2001.
75. The practitioners apprised of the fullest and most accurate history possible were all of the opinion that Mrs Glenn did suffer some injury to her back in the transport accident and that it had some contribution to the need for fusion and her current situation. They differed markedly about how it should be apportioned, varying from 85% to the transport accident to 25%. Mr Dooley attributed 25% and Mr Klug who had attributed 20% was prepared to increase that to 25% having been more fully informed at the hearing. I note Mr Southby contributed 25% but in the circumstances, I could not explore on what material he had based that assessment and I set his apportionment to one side.
76. At the other extreme, we have Mr Wilde who attributed 70% and Mr Carey 80% - 90%.
77. I agree with Mr Dooley's observations about the difficulties in apportioning these matters, which he makes in his report of 30 April 2003 and confirmed in evidence :
"I have already indicated that there is no accurate mathematical formula for assessing the contribution from the motor vehicle accident on the one hand and the fall from the stool. The assessment is empirical. It cannot be judged pathologically. It must be judged largely upon symptoms and statements from her treating doctors at the time".
78. Those sentiments were echoed by Mr Carey in his evidence in chief and by Mr Wilde in cross-examination. Mr Carey said it was impossible to be quantitative and he did not start seeing her until well after the events. He said his percentage estimation was qualified by the fact that he could not be sure, and was based on absolutely no objective evidence whatsoever. Mr Wilde conceded that it was very difficult to apportion, and conceded the difficulties where apportionment is based on what a patient has told you without the benefit of contemporaneous reports.
79. One can glean from the contemporaneous notes of complaint that before the transport accident, Mrs Glenn had complained of some of the same symptoms of pain into her right buttock and leg that she next complained specifically of, after the fall from the stool. The occupational therapist in 1993 took a history of some problems prior to the accident. After the transport accident, the general practitioner's records refer to back pain or lumbar pain. Beyond that the notes are not specific. Her naturopath in March 1992 records she "was in 2 days ago, but bent over and back caught. pain" but could give no helpful evidence about what the cause of that presentation was. Whether there was a separate event is difficult to elicit, because there was no visit to her medical practitioner at the time that assists with those matters. Indeed by June 1994, her general practitioner is reporting for medico-legal purposes about her injuries in the accident and he makes no reference to any back injury. Contrast this with her complaints after her fall from the stool and what Dr Nicholson records, details of which I have set out earlier. Further, what Dr Todd the chiropractor recorded. Since the fall, there have been ongoing complaints of low back pain and she has had frequent treatment leading up to the fusion in 2001.
80. Given that picture, it is difficult to justify the apportionments of Mr Wilde and Mr Carey and I note the concessions they made about how one depended on the histories given to make an apportionment. In all the circumstances and doing the best I can, I adopt the apportionment suggested by Mr Dooley and conceded by Mr Klug and find that 25% of her impairments of her lumbar spine are attributable to the transport accident.
81. Turning to the impairments of the lumbar spine, they have been assessed under Table 46 in respect of ankylosis, Tables 50, 51 and 52 for loss of range of motion and Table 53 for intervertebral disc lesions.
82. So far as any range of motion is concerned, I adopt the same approach as I have with respect to her cervical spine and am satisfied that her loss of range of motion is to be assessed with reference to the best ranges of motion she has performed after her fusion. I exclude from consideration Mr Dooley's assessments of 30 April 2003 as they are not clearly based on examination on that day.
83. Thus flexion has consistently been to 40o which attracts 5% impairment. The best extension was observed by Mr Klug in his report of 5 May 2003 being to 20o which attracts 1%. Left lateral extension has consistently been to 20o attracting 2%. Right lateral extension when examined by Mr Southby and Mr Wilde has been to 20o attracting 2%. Left and right rotation have consistently been to 20o each attracting 2%. Thus I find she has loss of range of motion of the lumbar spine totalling 14%.
84. Mr Southby, Mr Klug and Mr Wilde have assessed impairments under Table 53. Mr Dooley has not, arguing that it is not appropriate to do so because the discs have been removed. For the same reasons as I found in relation to her cervical spine, I reject that approach and prefer the approach adopted by the other practitioners in relation to the application of Table 53.
85. There are two discs fused and the question is whether this attracts impairment for more than one level. Mr Southby and Mr Klug have made assessments at two levels. Mr Wilde only assessed one level the L4-5. He considered that Table 53 should only be applied to the disc which is the main pain generator.
86. Table 53 allows for disc derangement to be combined with residuals, one of those being loss of motion which are the residuals for which the practitioners have made allowances. Where she has loss of motion post fusion, it seems to me that that flows from the fusion at the two levels and that assessments at the two levels L4-5 and L5-S1 should be allowed.
87. Thus combining 14 with 5 and 5, I find she has a 22% whole person impairment for her lumbar spine. Attributing 25% of that impairment to the transport accident, I find she has a whole person impairment for her lumbar spine related to the transport accident of 6%. Again, I note that this approach rather than an assessment for ankylosis under Table 46 produces a better outcome for Mrs Glenn.
88. Dr Epstein and Dr Stern, psychiatrists, have both made assessments under Chapter 12 of the Guides for psychiatric impairment.
89. Dr Stern had examined and assessed Mrs Glenn for the Commission in 1994, 1997, 1998 and 2002. He has diagnosed post traumatic stress disorder of varying degrees and secondary reaction. In December 2002, he diagnosed that she suffered from a chronic post-traumatic stress disorder caused by the transport accident. He found she had a 15% psychiatric impairment of the whole person of which 10% was a primary reaction to the accident and 5% secondary to her physical symptoms.
90. Mr Epstein examined her in August 2002. He found she was left with symptoms of a Post Traumatic Stress Disorder and that the physical and psychiatric effects of the accident had led to an Adjustment Disorder and depressed mood. He assessed her as having a 20% psychiatric impairment of the whole person of which 10% related to that impairment which was not secondary to physical injuring arising from her Post Traumatic Stress Disorder.
91. Both practitioners have assessed her as having a 10% impairment under Chapter 12 not secondary to or arising as a consequence of physical injury. (see s.46B(2) of the Transport Accident Act 1986).
92. Mr Delany submitted that I should find that she has a 10% impairment under Chapter 12 in accordance with both of those opinions. He pointed out that Dr Stern, in cross-examination when it was put to him, agreed that a 10% impairment was fair and reasonable.
93. The thrust of Mr Masel's submission was that being more fully appraised of Mrs Glenn's reliability as a witness, I should reject an assessment founded upon Mrs Glenn's assertions and that I should not be convinced of a psychiatric impairment other than that which is secondary or in consequence of her physical injuries. He pointed out that I was not bound to choose between opinions expressed and that where there was good reason, I may depart from those assessments. Further, if I were satisfied there was an impairment not secondary or in consequence of physical injury, he submitted the impairment was minor and certainly well less than 10%.
94. It may well be that Mrs Glenn has not been a reliable historian, has answered questions in a way she perceives will assist her interests and that the practitioners have elicited information by direct or leading questions.
95. Dr Stern has seen her over a considerable number of years and his reports appear thorough and careful. He agreed 10% was a fair and reasonable assessment but he explained that he had assigned 10% as he thought he had to make an assessment to the nearest 5% and that equally his assessment could have been 9% or 8% not secondary to, or arising out of, physical injury. Be that as it may, I adopt his whole person assessment of 15% and assessment not secondary to or arising out of physical injury of 10%. I am comforted in doing so, having noted the reports of Mrs Glenn's treating psychologist tendered in evidence. Mr Hodgson reports in December 1998 that Mrs Glenn suffered from chronic Post Traumatic Stress Disorder as a result of the transport accident and he goes into great detail of her chronic symptoms. His diagnosis was the same in his further comprehensive report of February 2003.
96. I find Mrs Glenn has a 10% whole person impairment under Chapter 12 of the Guides.
97. Using the Combined Values Chart combining 10% with 9% with 6%, I find she has a whole person impairment of 23%. I therefore set aside the Commission's decision that she has a 22% whole person impairment and substitute it with a decision that she has a 23% whole person impairment.
98. At the close of submissions on 28 July 2003, the parties made submissions on the issue of "rounding" and whether the final impairment value should be expressed in terms of the nearest 5%.
99. Mr Delany submitted, following the decision of the Court of Appeal in Connelly v MMI Workers Compensation (Vic) Ltd [2003] VSCA 60, that the object of the Guides is to reach a reliable assessment figure based on a realistic assessment and that I have power to round up. He urged that I should round up if my findings were such that I could do so.
100. Mr Masel submitted that rounding in certain circumstances is permitted but is never mandatory. He submitted that in the absence of findings by the Tribunal it was difficult to advance much argument. He suggested that it was hard to see that a good reason for rounding up here would exist.
101. I raised my concerns with the parties about whether I could make a decision on this issue without hearing further submissions from the parties following the publication of my findings.
102. Mr Masel submitted that the question should be left open, and Mr Delany agreed.
103. Concerned about the implications for the future conduct of cases such as this one at the Tribunal, pursuant to s.96(2) of the Victorian Civil and Administrative Tribunal Act 1998 I sought the President's consent to refer the following question of law to the Trial Division of the Supreme Court for decision :
"Under s.46A of the Transport Accident Act 1986 and in accordance with the "Guides to the Evaluation of Permanent Impairment" Second Edition published by the American Medical Association does the Tribunal have power to make a whole person impairment determination including a consideration of the discretion to round that determination up or down, without the parties having had an opportunity to make submissions on the question of rounding, knowing the Tribunal's 'primary' findings on impairment?".
104. The President referred the question to the Trial Division, and the question had been listed for hearing.
105. However, with the consent of the parties the reference has been adjourned sine die. Events have been overtaken by the introduction of the Accident Compensation and Transport Accident (Amendment) Bill which contains amendments which have made the issue largely redundant for the Tribunal, if not for this proceeding.
106. In the circumstances, I give the parties liberty to apply further on the issue of rounding.
Glenn
Transport Accident Commission [2003] VCAT 1578
The TAC's decision that the applicant had a 22% whole person impairment was set aside and substituted with a decision that she has a 23% whole person impairment; parties have liberty to apply within 21 days on rounding [1]-[2], [97], [102].