[2001] VCAT 1942

2. The applicant's application for costs is dismissed.

1. The decision of the respondent is varied by deleting 5% therefrom and substituting 14% therefor.

2. I reserve the parties' costs of this application.

For Applicant: Mr J F Perry instructed by Maddens Lawyers

1. The applicant lodged two applications as a result of a transport accident in which he was involved on 11 July 1995 ("the transport accident"). The first application was signed on 30 October 2000 and lodged at this Tribunal on 1 November of that year and given the number 2000/87716 ("the decision application"). By the decision application, the applicant alleged that the respondent had refused to conduct an impairment assessment as a result of injuries received by the applicant in the transport accident and requested this Tribunal to order an impairment assessment pursuant to s.46A of the Transport Accident Act ("the Act"). The second application ("2000/103253") was signed on 18 December 2000 and lodged at this Tribunal on 22 December 2000 and sought review of a decision of the respondent made 8 November 2000 whereby the respondent assessed the permanent impairment resulting from the injuries that the applicant received in the transport accident at 5% whole person impairment ("the impairment application").

2. As a result of the decision being made on 8 November 2000 by the respondent, at the outset of this proceeding, both parties agreed that the decision application should be struck out. However, Mr Perry on behalf of the applicant made application for his client to be paid by the respondent the costs of that application. The application for costs was resisted by Mr Gorton who appeared for the respondent but his client did not make any application for costs in respect of the decision application. I shall deal with the decision application first.

3. Leading to the decision application, a number of letters passed between the applicant's solicitor and the respondent. I will set out those letters hereunder :

(a) By letter of 16 November 1999 Maddens Lawyers, the applicant's solicitors, wrote to the respondent requesting that it determine the applicant's degree of impairment as required by s.46A of the Act and enclosed four medical reports - one being from the applicant's general practitioner Dr Sarkis, two being from surgeons, namely Mr Huffam and Mr Maling, and one from a psychiatrist Dr Ivers.

(b) By a further letter dated 17 July 2000, the applicant's solicitors again wrote to the respondent and after referring to the letter of 16 November 1999, stated as follows :

"Unless we receive some positive reply to this letter within 14 days we will construe your failure as a refusal to conduct an impairment assessment and will take the matter immediately upon an application to the Victorian Civil and Administrative Tribunal".

(c) By letter of 24 July 2000, the respondent wrote to the applicant and requested him to attend two medical appointments, one being with Dr David Weissman, psychiatrist, on 30 August 2000, and the other being with Mr Henry Byrne, orthopaedic surgeon, on 31 August 2000.

4. Without further correspondence passing between the parties, the decision application was issued by this Tribunal on 1 November 2000. However, I note that Dr Weissman prepared a report dated 30 August 2000 and bears a stamp as having been received by the respondent of 5 September 2000, and Mr Henry Byrne wrote a report of 31 August 2000 which also bears the stamp of having been received by the respondent of 5 September 2000.

5. Mr Gorton submitted that the decision application was without jurisdiction and was without merit as the applicant did not give the respondent sufficient time to make its impairment decision and the matter was still under active consideration at the time that the application was issued.

6. Mr Gorton submitted that the legislative scheme of the Act and the Victorian Civil and Administrative Tribunal Act 1998 ("VCAT Act) did not permit an application of this nature to this Tribunal. Section 46A(1) reads as follows:

"(1) The Commission must determine the degree of impairment of each person who is injured as a result of a transport accident and appears to the Commission to be or to be likely to be entitled to an impairment benefit, as at -

(a) if a person is not a minor when the accident occurred -

7. The relevant parts of s.47 of the Act read as follows :

"(7) The Commission may, on the application of a person who is injured as a result of a transport accident ... determine the degree of impairment of the person if satisfied that -

(c) the person requires the determination for the purpose of proceedings for the recovery of damages in respect of the injuries; and

(d) the injury has stabilized or has substantially stabilized.

(7A) If the Commission determines under sub-section 7(a) the degree of impairment of a person who is injured as a result of a transport accident, the Commission may make a further determination of the degree of impairment of that person in substitution for the determination under sub-section (7) 18 months after the accident occurred or in the case of a minor, when the person attains 18 years ....".

8. The VCAT Act both defines "decision-maker" and refers to when there can be a "deemed" decision. Pursuant to s.3 of the VCAT Act, "decision-maker" means :

"A person who makes, or is deemed to have made, a decision under an enabling enactment;"

9. Section 4(2) of the VCAT Act refers to circumstances where there may be a deemed decision :

(2) For the purposes of this Act or an enabling enactment -

(a) a decision is made under an enactment if it is made in the exercise or purported exercise of a function conferred or imposed by or under that enactment;

(b) a decision that purports to be made under an enactment is deemed to be a decision made under that enactment even if the decision was beyond the power of the decision-maker;

(c) a refusal by a decision-maker to make a decision under an enactment because the decision-maker considers that the decision cannot lawfully be made is deemed to be a decision made under that enactment to refuse to make the decision;

(d) a failure by a decision-maker to make a decision under an enactment within the period specified by that enactment is deemed to be a decision by the decision-maker at the end of that period to refuse to make the decision". (emphasis supplied).

10. In Soulis v Transport Accident Commission (unreported 7 May 1999), in similar circumstances to this, I decided that there was a "deemed" decision to not make a decision and then went on to decide that the respondent had not refused to make a decision and was in the decision-making process.

11. I reached the decision in Soulis on the basis of a decision by Judge Smith in the Administrative Appeals Tribunal in Re Grady and Transport Accident Commission (No 1) 4 VAR 384 at 390. Senior Member Megay in Re Zagami and TAC (2000) 17 VAR 209 also considered the decision of Grady and at pp.217-218 stated as follows :

"Mr Sandbach referred me to the decision in Re Grady and TAC which he submitted supported his contention that the respondent be deemed to have refused to make the assessment given that a reasonable time had elapsed. As I understand the decision of Judge Smith in the Grady case, it was based on the premise that (and I quote from par (3) of the headnote):

`The obligation imposed on the Commission by s47(7) of the TA Act to determine the degree of impairment of a person involved in a transport accident must be performed within a reasonable time from the request and failure to make the determination within such a reasonable time could be a deemed decision which the Tribunal may review'.

As I read his Honour's decision, this finding was based on his interpretation of s3(4) of the then Administrative Appeals Tribunal Act 1984 (Vic)( (the precursor to the VCAT Act) which provided :

`For the purposes of an enactment that makes provision in accordance with this section for the making of applications to the Tribunal for review of decisions, a failure by a person to do an act or thing within the period prescribed by that enactment, or by another enactment having effect under that enactment, as the period within which that person is required or permitted to do that act or thing shall be deemed to constitute the making of a decision by that person at the expiration of that period not to do that act or thing'.

The thrust of s.3(4) of the Administrative Appeals Tribunal Act is to be found in different language but with like meaning in s.4(2)(d) of the VCAT Act which provides that :

`a failure by a decision-maker to make a decision under an enactment within the period specified by that enactment is deemed to be a decision by the decision-maker at the end of that period to refuse to make the decision'.

Assuming I have understood his Honour correctly, what he was propounding was a view that s 46A of the Act fulfilled the criteria contemplated in s 3(4) of the Administrative Appeals Tribunal Act of a `failure' by a person to do an act or thing within the period prescribed by that enactment'.

I have no difficulty with the argument that, where no time limit is imposed by a particular Act, the law will imply that the act must be performed within a reasonable time. I do, however, have difficulty with the notion that s 46A of the Act falls within the ambit of s 3(4) of the Administrative Appeals Tribunal Act. This is so because of the very precise terminology of s 46A of the Act. The fact is that the Act does not prescribe a period within which an impairment assessment must be made - it merely sets out what must flow before such a decision can be made. And that is the thrust of s 46A. The section provides that a determination of impairment is to be made as at 18 months after the accident or when the injury stabilises which last occurs. It does not go on to prescribe a period within which an impairment assessment must be made.

A possible corollary of that line of argument is that unless the circumstances in a particular case give rise to a finding of fact under one of the limbs of s 4 of the VCAT Act, then an applicant would have no available remedy in this Tribunal although remedy might be available elsewhere.

But it is not necessary for me to come to a concluded view on that point even though the quite precise wording of the newly enacted s 4(2)(d) of the VCAT Act makes his Honour's reasoning in Grady's case less applicable due to the omission of any `period specified' under, for instance, s 46A of the Act. If Grady's case is good law, it follow that, in order to come to a conclusion as to whether or nor there has been a deemed refusal, it is necessary to have regard to all the surrounding factors and to all the evidence available in the relevant period in order to decide whether or not a reasonable time has elapsed".

12. I note, and agree with the comment of the Senior Member that the wording of the VCAT Act is somewhat different to that which his Honour was considering in Grady's case and I agree with the "possible corollary" to which she referred in the penultimate paragraph of the quotation. Vice President Judge Strong also considered this matter recently in Commisso v Transport Accident Commission (unreported) 29 March 2001. It is noted that his Honour found that a failure to make a decision can be a refusal. At paragraph 29 of that decision his Honour stated :

"It is my firm view that a failure to make a decision can, in certain circumstances, constitute a refusal to make a decision : Mr Solomon, on behalf of the Commission, conceded as much. A qualitative assessment of the circumstances of the alleged failure is required. In short, the failure must be so serious as to be tantamount to a refusal. The Commission might be pursuing an utterly irrelevant line of enquiry in circumstances where it is in possession of all the material it requires to make its decision. There might be inordinate delay, though I do not think it sufficient that the delay could be characterised merely as `unreasonable'. It would have to be completely indefensible before it would be tantamount to a refusal. There must be something in the nature of an abdication by the Commission of its duties under the Act".

13. Since the publication of the decision in Soulis, I have had considerable time to reflect on the question of the jurisdiction of this Tribunal to require the Transport Accident Commission to make a decision pursuant to s.46A of the Act. In my view, the words as used in s.4(2)(d) of the VCAT Act, "within the period specified in the enactment" should be given their natural and proper meaning. Section 46A and 47 of the Act do not specify any particular period in which the respondent is required to make a decision. Those sections specify that the decision should not be made either before 18 months since the transport accident or before the injuries have stabilized whichever is the later but they do not specify a time period in which the respondent is required to make a decision after that time. If Parliament had intended the decision of the respondent to be made within a specific time after that period or within a reasonable time after the period specified, it could have stated so but it has not.

14. It is noted that by s.53 of the Freedom of Information Act 1982 ("FOI Act"), has provided a deeming provision where the person required to make a decision has failed to do so within a particular period. If Parliament had intended there to be a similar deeming provision in the Act, in my view, it would have so stated. The failure to have a similar provision to s.53 of the FOI Act is, in my view, a clear intention that Parliament did not intend this Tribunal to be able to deal with a matter pursuant to s.46A where there had been no actual decision.

15. Mr Perry submitted pursuant to legal principles that where there is no time stated for the doing of an Act, a reasonable time should be implied. While it is trite to say this is a correct principle in contract law, in my view, to imply a reasonable time would not be compatible with the provision as appears in s.4(2)(d) of the VCAT Act which specifically gives power for the Tribunal to deal with deemed decisions where there is a period specified by the enactment. Here, as I have stated, there is no period specified by the enactment at all for making the decision apart from a period prior to which a decision cannot be made. Implying a reasonable time for making a decision is very different from being required to make a decision in a "period specified".

16. For the reasons which I have stated above, I have come to the view that in relation to a matter to which s.46A of the Act is concerned, where there has been no assessment or where there has been no specific decision not to make an assessment this Tribunal has no jurisdiction to entertain an application to require the respondent to make such a decision. That does not of course mean that an applicant is without a remedy. The applicant may have remedies in the Supreme Court in the nature of mandamus or, perhaps, under the Administrative Law Act but that is not something to which I need decide here.

17. In coming to the conclusion I have above, I am mindful of the fact that what I am saying varies slightly from what Judge Strong stated in paragraph (29) of Commiso's case. While I believe comity is important in a Tribunal such as this, I have formed the view that this is an extremely important matter going to the question of jurisdiction. As such, as I have a view that appears to be somewhat different from his Honour, I believe it is important that I express that view and make my decision accordingly until such time as the question is resolved by the Supreme Court. Accordingly, with respect and reluctance, I have determined not to follow Commiso's case.

18. As there may be some doubt as to the matters of jurisdiction which I have discussed above because the substance of this matter was argued before me, I believe it is important that I consider whether or not the material substantiates the fact that the respondent has waited an unreasonable time to make its decision. I will consider this point even though it is not strictly necessary because of my finding as to the lack of jurisdiction. Thus what Judge Strong describes as tantamount to a refusal will now be considered in relation to the facts of this proceeding.

19. Mr Perry stated that as the reports of Mr Byrne and Dr Weissman were dated 31 and 30 August respectively (both having been received by the respondent on 5 September 2000), the respondent was in a position to make a decision prior to the issue of the application. Mr Perry further stated that as the respondent had been supplied with the applicant's medical material and had its own material, it should have been able to make its decision a considerable time before the issue of the application. In the matter of Soulis at paragraph 24, I accepted a submission of Mr Middleton and Mr Solomon who appeared for the respondent which submission I believe is applicable in the case presently before me. There it was stated :

"The source of power recognises that there must be a decision-making process. The Commission must turn its mind to whether an injured person appears to be one who may be entitled to an impairment benefit. In a particular case, the Commission might need to consider the circumstances of the accident or prior injuries of the injured person (to determine causation). It might, further, need to test the contents of any medical reports provided by the injured person, either by requesting clarification of the opinion provided, or requesting that the claimant undergo medical examination".

20. While it may be true that the respondent had medical reports provided by doctors which it had employed for nearly two months in its possession, in my view that does not necessarily mean that at that time it was in a position to make its final decision. In making a decision, it is important that the respondent take into account many factors some of which may not even appear in medical reports. For example, the veracity of a history given by an applicant to the medical examiners. In this particular proceeding, I have not been given any evidence one way or another as to whether the respondent was considering this or other matters. But, in my view, a delay of almost two months under these circumstances does not appear to me to be unreasonable. The respondent is entitled to conduct a proper decision-making process and not have the same fragmented. The distinction between decision-making process and decision was referred to in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 337. Also in that case the question of fragmentation was discussed. His Honour Mason CJ stated there as follows :

"To interpret `decision' in a way that would involve a departure from the quality of finality would lead to a fragmentation of the process of administrative decision-making and set at risk the efficiency of the administrative process.

The policy arguments do not, in my opinion, call for an answer different from that dictated by the textual and contextual considerations. The answer is that a reviewable `decision' is one for which the provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an immediate decision, might accurately be described as a decision under an enactment".

21. Taking all these matters into account, I have formed the view that even if I be wrong on the question of jurisdiction, in any event, I cannot be satisfied that the respondent was not at the time of the issue of this application still conducting its decision-making process. In fact, given the time frame involved, I have come to the conclusion, on the balance of probabilities, that the respondent was still in the decision-making process. Under those circumstances, the application would have been dismissed in any event.

22. As it has already been agreed that this application should be struck out, the only matter for me now to consider is the question of costs. Having made the findings pertaining to the application that I have above, in my view, the application should never have been issued as there was no jurisdiction and, in any event, the applicant would not have succeeded. Bearing this in mind and taking into account the discretion that I have in regard to costs that is referred to in Transport Accident Commission v O'Reilly [1998] VSCA 106; [1999] 2 VR 436, I am of the view that the applicant's application for costs in this proceeding should be dismissed.

23. On 11 July 1995, the applicant was driving his Holden Utility motor vehicle in a southerly direction on the Hume Highway at Campbellfield. While the vehicle was stopped at a red light at the intersection of Barrys Road, it was struck forcibly from behind by a semi-trailer without warning. The applicant believes that the semi-trailer was travelling at a high speed. The force of the impact caused the applicant's vehicle to be propelled a significant distance along the Hume Highway. Because the brakes of the vehicle were damaged in the collision, the applicant was unable to use brakes to assist him to stop, however the vehicle eventually stopped after the applicant had managed to steer it into a cutting at the side of the road which the applicant states was approximately 250 metres from the point of collision.

24. The vehicle that the applicant was driving had a bench seat and was fitted with a lap-sash seat belt, which was properly secured around the applicant at the time of the collision.

25. Subsequent to the transport accident, the applicant crawled out of the driver's side window due to the extensive damage of his vehicle. He walked to a nearby service station and arranged for a tow truck and then organised himself a lift home in the tow truck.

26. The applicant stated that after the transport accident, his body was stiff and sore and, in particular, he had soreness around the back. As a result of the soreness, the applicant saw his local doctor, Dr Lowe the following day. He said that he felt that his low back was swollen.

27. Subsequent to the transport accident, the applicant was off work as a truck driver for approximately 7 months whence he resumed work but only for a short period. Subsequent to that time, he had numerous other jobs on and off but has had difficulty finding employment. In January 1997, the applicant worked for approximately one month during a period of which he was off work for two weeks because of a nail in his hand. However, during the time that he worked he drove a tip truck and spread some type of rock for a period of three days, spent some time repairing the tip truck and servicing the same and did other odd jobs for his employer. He also applied for jobs in his local area as a sales person to an electrical retailer, in a shoe shop and in a fish and chip shop and he also applied to do some driving of a small van between Apollo Bay and Melbourne once per week. He stated that he was not accepted for any of these jobs because of his injury and further stated that in relation to the van driving he would have needed to stop in Geelong and have a rest because he was unable to sit for a long period of time.

28. The applicant was born on 15 May 1962 and is consequently 39 years of age. He is a single man and lives in a self-contained mobile home on his parents' property at Barongarook. He completed his formal education in July or August 1997 when he left the Coburg Technical School without completing Year 10. After that time, the applicant obtained numerous jobs until he became an owner/driver of a tip truck.

29. During his employment, the applicant suffered two serious injuries at different times. In January or February 1983, his arm was caught between the chassis and the tipper body of a trip truck. As a result, his left arm was injured and required pins to be inserted in fracture sites and subsequently skin grafts were applied and he spent one month in hospital as an in-patient. It was not until approximately two years after the accident that the pins inserted during the surgery were removed and there were further skin grafts to his arm.

30. In November 1998, while driving in the course of his employment, as a result of two unrestrained horses on the roadway, he had a motor vehicle accident. The injuries he suffered in that accident were facial lacerations, a chip tooth and shock. He stated that he suffered no injuries to his neck or back at that time and had no permanent consequences from that accident.

31. As a result of the transport accident, the applicant alleges that he suffered damage to his neck, back and right shoulder as well as psychological injuries including post-traumatic stress disorder. He now seeks assessment pursuant to Chapter 12 for psychological injuries, pursuant to Chapter 1 in relation to spondylolisthesis (Table 53 A1), disc derangement pursuant to Table 53 B3 at C6/7, T6/7, L3/4, L4/5, L5/S1. Alternatively to the spondylolisthesis, he seeks an assessment for loss of range of motion of the thoraco lumbar spine and he seeks an assessment for loss of motion of the cervical spine. At the commencement of this hearing, as a result of an assessment by Mr Maling, the applicant also sought assessment in relation to station and gait and a sleep disorder relying on Appendix B at p.225 of the AMA Guides. However, in final address Mr Perry conceded that these items did not properly fall for assessment and, as a consequence, did not pursue that part of the claim.

32. The applicant was assessed by two psychiatrists - Dr Ivers at the request of his own solicitors and Dr Weissman at the request of the respondent. Both psychiatrists assessed the applicant's primary psychiatric impairment as a result of the transport accident at 5%. Thus the parties agreed that this was a proper assessment in all the circumstances and therefore I find that the applicant has a 5% whole person psychiatric impairment.

33. The applicant has been assessed for a spondylolisthesis pursuant to Table 53 by Mr Huffam at 10% and by Mr Maling, Mr Flaim and Mr Pryor at 20% whole person impairment. Mr Dooley and Mr Byrne, both orthopaedic surgeons, were of the opinion that he did not qualify for an assessment of spondylolisthesis pursuant to the Guides. Apart from Mr Maling who was of the view that the applicant had a pre-existing spondylosis which the transport accident turned into a spondylolisthesis, all the medical examiners were of the view that the spondylolisthesis, which the applicant undoubtedly has, pre-existed the transport accident. Mr Dooley in a letter of 20 April 2001 described the applicant's spondylolisthesis. He stated :

As outlined in the body of my report, I believe that the spondylolisthesis at the lumbo sacral level of the spine pre-existed the motor vehicle accident. It is a developmental condition. I do not believe that there is any doubt about this. This view has been confirmed by Mr Huffam and by Mr Byrne who are both experienced practising orthopaedic surgeons. It is clear to me and to these surgeons that the spondylolisthesis at this level is not traumatic. It was not caused by the motor vehicle accident. The spondylolisthesis has occurred as a result of so-called spondylolyses at L5 level. In the developing years a solid bony bridge fails to occur in this region and there is a small fibrous defect. This allows movement of the 5th lumbar vertebra forward on the 1st sacral segment. In general terms, this underlying structural condition of the spine is quite common. It may well affect 5% to 8% of the population. In many patients the condition remains asymptomatic. Some adolescents in their teenage years will develop low back pain and this pain relates to the so-called paths defects. At adolescent age the pars defects act like stress fractures. With activity and movement of the spine these defects can become painful. The area becomes inflamed. If pain does not settle then sometimes lumbo sacral fusion can be required in the adolescent. ...

Some patients do develop intermittent low back pain as they age. In most patients this would be pain that is noted in their 20s 30s and 40s. Because of the increased movement of the lumbo sacral level of the spine lumbo sacral disc degeneration occurs earlier and develops more quickly than in the normal spine. In patients who become symptomatic in their advancing years pain relates to disc generation. The pars defects become scarred and minimal if any movement occurs around them. The spondylolisthesis in essence stabilises. In these patients who develop pain with time the pain may develop spontaneously or it may be precipitated by acute chronic trauma. There is no doubt that that sort of force that was involved in Mr Kerrigan's accident could precipitate pain in the degenerating lumbo sacral disc".

34. In relation to Mr Maling, I was particularly concerned with aspects of his evidence. Initially, in his report, he did not assess spondylolisthesis at all but it was only when he gave his oral evidence that he assessed the applicant pursuant to Table 53 A1. I also note the fact that Mr Maling was attempting to assess the applicant for sleep disorder and station and gait pursuant to Appendix B at p.225. In my view, this type of assessment is completely untenable. It is clear that Appendix B is a glossary of terms and the part to which Mr Maling referred, is an explanation of the terms that are used in Chapter 2. In this particular proceeding, there is no suggestion that the applicant has any brain injury. Therefore, I found it quite incredible that Mr Maling should have sought to assess the applicant in this manner.

35. The evidence disclosed Mr Maling's surgical experience was limited and he did not have experience in spinal surgery in the last 40 years. From what I could observe, Mr Maling seemed more intent on arguing the case for the applicant than in giving an unbiased medical opinion. He was reluctant to make concessions even when the same were obvious. For example, he stated that the Guides required examination by active motion and specifically for back passive motion. Mr Gorton informed him of the words in the introduction to Chapter 1 of the Guides which read :

"Finally, if possible, the examiner should complete the range of motion of the joint (passive motion) and record the results".

Even at that point, Mr Maling was reluctant to admit that his statement was wrong. Thus, I will treat Mr Maling's evidence with some scepticism.

"Grade 1 and 2 spondylosis and spondylolisthesis with aggravation, persistent muscle spasm, rigidity and pain resulting from trauma".

37. Mr Gordon has correctly stated that, in order to obtain an assessment pursuant to Table 53 A1, the applicant must not only show that he suffers from spondylolisthesis but that he has persistent muscle spasm, rigidity and pain resulting from trauma.

38. The applicant stated in his oral evidence that he has spasm like a shock down the lower part of his back and such spasm is not brought on by activity. However, when he was describing the spasm, he said words to the effect that "it is like my muscles becoming still". Dr Sarkis said he would not describe muscles becoming still as spasms and instead he said "spasm" is "muscles irritated and inflamed causing spasms of tissues".

39. Mr Perry submitted that the applicant's evidence in describing spasm as stillness was a lay person saying that he was unable to move. I do not accept this submission by Mr Perry. In my view, if the applicant wished to say he had spasm there was nothing to stop him accurately describing the condition. He failed to do this. I fail to see how muscles going still can in fact be spasm. I am fortified in this view by the fact that the applicant has been examined on numerous occasions by numerous examiners since the time of the transport accident and on none of those occasions have any of the examiners found any spasm in the applicant's back. While I accept the fact that spasm can come and go, I would have thought that, in light of the number of examinations that the applicant has had, there would have been some evidence of spasm to be found by a medical examiner. The applicant's own examiner, Mr Pryor, admitted he had no record of spasm as did Mr Flaim. Mr Byrne found that there was no spasm and Mr Dooley found that it was the disc derangements at L5/S1 that were responsible for the applicant's back symptoms. Mr Dooley stated :

" ... my opinion that according to the 2nd Edition AMA Guides impairment cannot be allocated under Table 53 Section A in Mr Kerrigan's case. It clearly stated that for an impairment to apply for spondylosis or spondylolisthesis, there must be clear evidence of aggravation of condition with ongoing rigidity, muscle spasm or pain (that can be reasonably related to the spondylosis). Clearly this is not the case in Mr Kerrigan's situation. He has almost full range of movement of the spine with no evidence of spasm or muscle rigidity".

40. Mr Flaim was of the opinion that there was rigidity of the spine because the applicant had a deficit of 10o in right and left flexion. This is a relatively small deficit and, in my view, is not enough to show that there is rigidity particularly in the circumstances where Mr Huffam and Mr Byrne have found full movement in the thoraco lumbar spine while Mr Dooley has only found a 2% whole person impairment relating to the same. In my view, it is wrong to equate the word "rigidity" as used in Table 53 A1 with a slight loss of movement.

41. Thus, I find that as the applicant has neither spasm nor rigidity, he does not qualify for an assessment pursuant to Table 53 A1. Before an assessment can be made of spondylolisthesis, each and every element referred to in Table 53 A1 must be satisfied. While the spondylolisthesis is satisfied and while pain may be satisfied, I am of the view that the applicant does not suffer from persistent muscle spasm or rigidity. In those circumstances, I will make no assessment pursuant to Table 53 A1.

42. All the examiners, apart from Mr Byrne and Mr Flaim made an allowance pursuant to Table 53 B3 for a clinically established disc derangement without residuals. However, there was considerable difference in the discs for which allowance was made. Mr Pryor from his examination of 6 December 2000 allowed for a disc derangement at C6/7 and L4/5. Mr Huffam generally allowed an assessment for one disc of the thoraco lumbar spine without specifically stating to which disc he was referring. Mr Maling allowed for five discs individually being C6/7, T6/7, L3.4, L4/5 and L5/S1 while Mr Dooley allowed for one disc at L5/S1.

43. An MRI of the applicant's cervical spine was performed on 26 February 1999 at St John of God Healthcare. In a report of that date it is stated :

"At C6/7 there is a minor broad central disc bulge without evidence of neural compression and only slight effacement of the anterior subarachnoid space".

44. Mr Gorton submitted that there should be no allowance in relation to the cervical spine disc because there was no residual symptoms. He stated that there was no compromise of nerve roots, there was nothing to explain any radicular pain and there was no neurological deficit in the applicant's upper or lower limbs.

45. Mr Perry submitted that the tingling in the applicant's fingers and hands demonstrated that there was symptoms and residuals as a result of the disc at C6/7. He also pointed to the fact that Mr Maling and Mr Pryor had found that the applicant had restriction of movement of his cervical spine. However, it should be noted that Mr Huffam, Mr Dooley and Mr Byrne found a full range of movement in the cervical spine. Further, Mr Pryor when he was giving his evidence stated that the applicant had no neurological deficit. It is noted that the applicant has had previous injuries to his hands and it is further noted that evidence was given that it is possible to have the symptoms that he complains of in his fingers and hands from other causes such as carpal tunnel.

46. Looking at all these matters as a whole, in my view, on the balance of probabilities, I find that the symptoms of which the applicant complains in his fingers and hands do not arise from the disc disruption at C6/7 and neither does the pain or restriction in movement which some medical doctors found to exist arise from the disc itself. In fact, for reasons which I will state later in this decision, I will not find that the applicant has any restriction of movement of the neck.

47. Thus taking all these matters into account, I will not make any allowance pursuant to Table 53 for the C6/7 disc.

48. In relation to the disc at T6/7, of which only Mr Maling gave an assessment, there is a comment by Dr Barry the radiologist who examined the MRI on 26 February 1999. He stated :

49. It was on this basis that Mr Maling made his assessment. However, Mr Gorton pointed out that in relation to this disc there is no residuals or likely residuals whatsoever. In answer to that submission, Mr Perry relied on the report of Dr Sarkis of 15 January 1999 wherein the doctor stated :

"I first saw him (the applicant) in relation to the accident of 27.5.97 when he presented with right shoulder pain. The examination revealed a very hot and swollen and inflamed subscapular bursitis. He had had recurrent trouble with the shoulder since the accident".

50. Mr Perry, while conceding that the applicant no longer has any problems with his shoulder stated that the word "residuals" as used in Table 53 B3 means that if there were residuals at any time since the transport accident even though those residuals are no longer in existence, that is sufficient to satisfy the criteria.

51. I do not agree with the submission of Mr Perry. The AMA Guides measure permanent impairment. It would be absurd to say that because an applicant at one time had a symptom that no longer exists, that symptom is sufficient to bring the applicant within the word "residuals" as used in the table. That would be giving a meaning to the word which it does not have. Therefore I reject that submission. I further find that while the applicant has a posterior annular tear of the T6/7 disc, there are no residual symptoms flowing from such tear. In those circumstances, I will make no allowance pursuant to Table 53 B3 in relation to the disc at T6/7.

52. In relation to the discs at L3/4, L4/5 and L5/S1, Mr Perry conceded that there were a number of decisions of this Tribunal which stood for the proposition that where there were neighbouring discs with derangements and it was impossible to discern which residuals arose from which disc an allowance should only be made for one disc, not for the multiple discs. This is undoubtedly the position that this Tribunal has held for a considerable period of time and, in my view, is a correct proposition.

53. The only examiner not to make allowance for a lumbar disc at all was Mr Byrne. It seems obvious to me that the applicant does have considerable problem with his lumbar discs and particularly the disc at L5/S1. Mr Dooley notes that the MRI scan carried out in 1999 shows reduced signal intensity of the L3 to S1 discs. Mr Dooley noted that the applicant "reports ongoing pain and I believe that it is more than reasonable to accept that at least some of this pain relates to aggravation of established pre-existing lumbo sacral disc derangement. Therefore, a 5% impairment would apply in this regard. Bearing in mind the pain that the applicant has described which I accept, and the radiological findings in regard to the lumbo sacral discs, I reject the evidence of Mr Byrne. I thus find that the applicant is entitled to a 5% whole person impairment pursuant to Table 53 B3.

54. The applicant was found to have full movement of the cervical spine by Mr Huffam on 25 September 1998, Mr Dooley on 26 July 2001 and Mr Flaim on 6 December 2000. On the other hand, Mr Maling on 14 December 1998 found the applicant to have a 9% impairment in relation to his cervical spine and Mr Pryor found a 7% whole person impairment in relation to the cervical spine on 26 February 2001.

55. In matters concerning range of movement, it is clear that applicants can have good days and bad days. What I must determine is the applicant's range of movement on a normal day. Doing the best I can under the circumstances, I say that, as I have previously stated, I was concerned about the veracity of the evidence of Mr Maling. Looking at the evidence as a whole, I am of the view that it is likely that on a normal day the applicant would have a full range of movement of his neck. The findings of both Mr Maling and Mr Pryor are that a 9% and 7% impairment respectively is a relatively high impairment for the neck and I find it difficult to believe that he could have had such a high impairment on those days and no impairment when examined by Mr Huffam, Mr Flaim, Mr Byrne and Mr Dooley. Under those circumstances, I find that the applicant has no limitation in range of movement of the cervical spine.

56. Both Mr Huffam and Mr Byrne found that the applicant had a full range of movement of the cervical spine. Mr Dooley found that he had a 2% whole person impairment, Mr Maling 6% whole person impairment and Mr Pryor 9% whole person impairment. I take into account the circumstances of the transport accident in that it was a severe jolt to the applicant's body and the fact that he made complaints of his back from day one. Under those circumstances, I think it is unlikely that, on a normal day, he would have a `nil' range of movement as found by Mr Byrne. However, I find that Mr Pryor's finding of 9% appears to be out of line with all the other examiners and I will discount that. Further, as I have already stated, I have concerns about Mr Maling's evidence. Therefore, doing the best I can as between Mr Dooley and Mr Flaim, I think it is likely that the applicant would, on a normal day, have a 4% whole person impairment as a result of restriction of movement to his thoraco lumbar spine and will allow such.

57. Thus the applicant is entitled to a whole person impairment of 5% for his psychiatric impairment, combined with an impairment of 5% for a lumbo sacral disc derangement pursuant to Table 53 B3 and a 4% impairment as a result of restriction of movement of the lumbar spine which combines to give the applicant a 14% whole person impairment. Thus I will order that the decision of the respondent be varied by deleting 5% therefrom and substituting 14% therefor.