Acevedo and Comcare - [2004] AATA 447

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 447

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2003/411

GENERAL ADMINISTRATIVE DIVISION		)
Re		INES CARMEN ACEVEDO

Applicant

And

COMCARE

Respondent

DECISION

Tribunal

Ms J Cowdroy, Member

Date7 May 2004
PlaceBrisbane

Decision

The Tribunal affirms the decision under review.

........(Sgd) J Cowdroy.......
Member

CATCHWORDS

WORKERS’ COMPENSATION – benefits and entitlements – left medial meniscus tear of left knee – claim for lump sum payment for permanent impairment – whether applicant has a 10% impairment rating – Tables 9.2 and 9.5 – whether applicant has difficulties with grades and steps – pain only upon repetition – decision affirmed

Safety Rehabilitation and Compensation Act 1988 s 24(1)

Comcare v Fiedler (2001) 115 FCR 328

REASONS FOR DECISION

7 May 2004

Ms J Cowdroy, Member

This decision relates to a hearing before the Tribunal on 26 November 2003. It concerns review of a decision of the Respondent dated 7 March 2003, affirming a decision, of 15 October 2002, to disallow the Applicant’s claim for a lump sum payment for permanent impairment in respect to left medial meniscus tear of left knee.

Hearing

The Applicant represented herself and gave evidence. The Respondent was represented by Mr C Clark of Counsel. The T documents were entered into evidence as Exhibit 1, pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, as well as the following material:
Exhibit 2        Strathfield Family Medical Centre records
Exhibit 3        Sydney Sports Medical Centre records - Dr. Boundy
Exhibit 4        Sydney Sports Medical Centre - Physiotherapy
The matter was decided on the basis of the exhibits, the oral evidence, the submissions of the parties, relevant case law and legislation.

The Issue

The issue for the Tribunal is whether the Applicant has a permanent impairment to her left knee on the basis that she suffers a whole person impairment of 10% or more under the Impairment Tables in the Guide to the Assessment to the Degree of Permanent Impairment (the Guide).

The Legislation

The relevant legislation in this matter is found in the Safety, Rehabilitation and Compensation Act 1988 (the Act). Section 24(1) of the Act states that a person is entitled to compensation if a compensable injury has resulted in permanent impairment. Subsections 24(2) to (7) of the Act set out the requirements in determining whether such entitlement exists. These subsections state:
“(2)For the purpose of determining whether an impairment is permanent Comcare shall have regard to:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee’s condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.
(3)Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4)The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5)Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6)The degree of permanent impairment shall be expressed as a percentage.
(7)Subject to section 25, where Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section.”

The reference to “the approved Guide” in subsection 5 of the Act is a reference to the Guide to the Assessment to the Degree of Permanent Impairment.

Background

The following material is provided by way of background information and is not in dispute. The Applicant, who was born on 19 March 1972 was a serving member of the Navy. She enlisted in April 1997 and was medically discharged in January 2001. On 9 September 1999, the Respondent accepted liability for the Applicant’s left knee condition described as “left medial meniscus tear of left knee” on the basis that she sustained an injury on 11 October 1998. On 20 September 1999, the Applicant lodged a claim for rehabilitation and compensation for “torn cartilage left knee”.
By decision dated 15 October 2002, the Respondent denied lump sum compensation for the left knee condition as it was not satisfied that the Applicant suffered an impairment of at least 10% pursuant to the Guide.
On 12 February 2003, the Applicant requested reconsideration of that decision. By decision dated 7 March 2003, the Respondent affirmed the determination dated 15 October 2002.

Evidence

Following the injury to her knee, the Applicant was placed on restricted and light duties for some time. Ultimately, she underwent surgery in the form of a lateral release and arthroscope of her left knee, such surgery occurring on 22 September 1999. The Applicant indicated she had expected to make a relatively speedy recovery, however, she was absent for work for a few months and returned to work with her leg in a brace and using crutches. Ultimately she was able to ambulate without the aid of crutches but continued to use a leg brace for some time.
Despite physiotherapy, chiropractic treatment, the use of a knee brace, Pilates therapy and an appropriate exercise regime, her symptoms had not resolved. The applicant considered she had not regained full function of her quadricep muscles, which show evidence of wasting.
The Applicant contends that her knee lacks the strength that it had prior to the injury and that she could not now walk up stairs in a normal and comfortable manner. She said she pushes off with her right leg and hops with her left leg. She sometimes climbs stairs by placing one leg on the stair and then bringing the other leg up to the same stair. She uses lifts and rails wherever they are available. The Applicant said that she endeavoured to adopt a normal gait when going up stairs but this was not always possible. She acknowledged that she also suffers from ankle and lower back problems, which contribute to her physical limitations.
The Applicant consulted Dr Kevin Boundy of the Sydney Sports Medicine Clinic for a considerable period. In a report dated 21 January 2002, Dr Boundy was of the view that the Applicant had had a relapse in her condition. He had recommended to the Military Compensation Service that the Applicant be funded for further sessions of physiotherapy and for Pilates therapy. Ms Acevedo considered that those interventions “seemed to help” at the time but she has not had permanent relief of her symptoms.
She considered Dr Boundy had provided considerable assistance to her. Dr Boundy had described the manner in which she walked as a "Hitler walk", which she understood referred to a process whereby her left pelvis lifted up and rotated. She had last consulted Dr Boundy shortly before he indicated that he could not offer her any further treatment, which the Tribunal understood occurred in about November 2002.
The Applicant described no problems walking on flat ground, however, her left leg muscles become easily fatigued and she cannot squat comfortably as she is largely reliant on her left leg. Prior to the injury she was a competent ice skater and she was a member of the Queensland Women Ice Hockey team between 1997 and 1998. Currently she is only able to participate in basic skating. She attempted to return to competitive ice hockey last year, however, she injured her wrist during a fall. She said that she was subsequently “benched” and her participation consisted of sitting with fellow team players and watching the game.
In cross-examination, the Applicant agreed that there had been some improvement in her condition and that Dr Boundy’s comments that she had travelled extensively with her post-military employment was accurate. However, her main concern was that she had enjoyed a particularly high level of physical ability, particularly in the area of ice hockey and that that was no longer achievable.
In relation to Dr Harvey-Sutton's report, the Applicant considered that the doctor had not reported, in a comprehensive manner, the level of difficulty which she had reported to her. In particular, Dr Harvey-Sutton had neglected to include information which she had given about difficulty with grades and the limitations in respect to the manner in which she climbs stairs. She acknowledged that when she consulted Dr Thomson, who also provided a report, she was using a leg brace, consequently she was not able to demonstrate a range of physical activities for him to assess.
The medical evidence consisted of the following. Dr Phillipa Harvey-Sutton, a Consultant Occupational Physician, had provided a report dated 4 October 2002. She was asked to assess the Applicant’s permanent impairment as a result of her left knee condition. She stated that she observed the Applicant walk up and down sixteen stairs without apparent difficulty. The Applicant did not utilise the railing. She considered she had a normal gait. She could not recall the Applicant nearly falling down the stairs.
Dr Harvey-Sutton acknowledged that the Applicant reported that walking up and down the stairs can aggravate her left knee and she reported that her left knee gives way and that she has fallen on occasions. She considered that there was a full and normal range of movement in the Applicant’s left knee. She concluded that under the Impairment Tables a nil rating was appropriate. In forming that opinion, Dr Harvey-Sutton had also examined the MRI results.
Dr K Boundy, a specialist in sports medicine, provided several reports. In a report dated 2 December 1999, he described the following restrictions in the short term: “She is unable to walk long distances without resting and unable to climb numerous flights of stairs". In his last report dated 7 November 2002, he indicated that he was of the view that attempts to rehabilitate the Applicant to her pre-injury health had been successful. He stated: "I am of the opinion that all that can reasonably be done for Ms Acevedo has now been done". Dr Boundy sought to withdraw from further involvement in the applicant's treatment. He based that opinion partly on the fact that the Applicant had indicated to him that she considered her knee was sufficiently recovered for her to consider re-joining the military.
He did not recall using the term Hitler walk, however, he stated that he recalled her at one time limping quite badly but as time progressed, on most occasions, her gait was not unusual. He could not recall specific discussions about limitations with slopes or steps, although he remembered after a fall at ice hockey, she said or implied that the steps at her house, which he thought comprised three flights, were a nuisance.
Dr Ronald Thomson, general surgeon, provided a report dated 12 July 2001. He stated that the Applicant “has difficulty principally on account of the left knee disability with inclines and stairs”. He did not describe in specific terms what those difficulties were. He attributed a whole person impairment under Table 9.5 of 10%.
Dr N Sikander Khan, surgeon, in a report dated 5 September 2002, described under the heading of Present Complaints: “The knee tends to lock at times and gives way. She is unable to squat, run or go up and down stairs freely”. Dr Khan stated that the Applicant walked with a normal gait and that the Applicant’s left knee problem restrict her from squatting, kneeling, climbing up and down stairs and running. He opined that it is likely that the Applicant would continue to experience “intermittent symptoms in her left knee”.
In a report dated 28 January 2000, Chris Beck, podiatrist, stated that “visual gait analysis indicated that her gait exhibits bilateral excessive rear foot motion (pronation) with her left foot pronating more than her right".

Submissions

The Respondent referred the Tribunal to the principles enunciated in the matter of Comcare v Fiedler (2001) 115 FCR 328. The medical evidence does not support the Applicant’s contention that the degree of difficulty experienced warrants an allocation of 10% whole person impairment.
The criticisms made of the Applicant in regard to the report of Dr Harvey-Sutton were unfounded. It was significant that Dr Harvey-Sutton did not notice that the Applicant nearly fell when walking up the stairs and that she had made a specific note of the Applicant not using rails. Moreover, Dr Boundy’s letter of 7 November 2002 tends to corroborate the Respondent’s position that the Applicant has been rehabilitated to her pre-injury level.
The Applicant reiterated her contention in relation to what she perceived as discrepancies in Dr Harvey-Sutton’s report. She considered that undue weight had been placed by the Respondent on that report and that she had consulted other doctors, such as Dr Thomson, who supported her contention that her left knee condition warranted 10% whole person impairment. She expressed concern that the physical symptoms she had expressed to other doctors had been ignored.

Findings and Consideration

The Tribunal finds that the applicant suffered an injury to her knee in respect of which she continues to suffer some symptoms. The crux of the matter before the Tribunal relates to the extent of those symptoms.
There are two Tables in the approved Guide under which the Applicant’s knee condition are able to be assessed, namely Table 9.2 and Table 9.5. Table 9.2 provides for assessment in accordance with a joint's range of movement. A nil assessment is applicable where x-ray changes are demonstrated but there is no loss of function of the knee. General medical opinion is that the Applicant has a full range of knee movement and accordingly, the Tribunal finds that no impairment rating is applicable under Table 9.2.
Table 9.5 refers to lower limb function. A 10% level of impairment is warranted where a person “can rise to a standing position and walk BUT has difficulty with grades and steps”.
Dr P Harvey-Sutton, whose report has been considered earlier, recorded that the Applicant walked up and down stairs on the day of consultation without difficulty, however, she acknowledged that the Applicant informed her that she cannot undertake this activity repetitively or otherwise there are pains in the left knee. She opined that while the Applicant has permanent impairment in the left knee she did not consider it met the requirement for an allocation of a rating under Table 9.5.
The Tribunal considered all of the medical evidence before it. It considered it significant that Dr Thomson, who allocated 10% under Table 9.5 did not explain the basis upon which he made that assessment, other than in very general terms. The Tribunal noted also that the Applicant was unable to demonstrate her ability to walk up and down stairs and slopes due to her being in a back brace at that time. Although Mr Beck and Dr Boundy made comment about the Applicant’s unusual gait, it is significant that Dr Boundy considered that this had resolved. Although he had treated the Applicant over a relatively long period, Dr Boundy could not recall the "Hitler walk". Whilst he recalled some problem with stairs, it is clear that he was referring to a period prior to 2002.
The Tribunal accepted the Applicant's evidence that her left knee is not as strong as it was prior to her injury. It notes her contention that this causes her difficulty with slopes and stairs.
There is no guidance as to what constitutes difficulty in the approved Guide, however, the Tribunal was mindful of the fact there had been many attempts in the Comcare jurisdiction to describe the manner in which this term should be interpreted.
Whilst the Tribunal notes the Applicant’s assertion that she has had to modify the way in which she climbs stairs, no practitioner who has observed her clinically over the past two years has commented that the manner in which she performs that procedure presents in other than a perfectly natural manner.
The Tribunal was not satisfied that the Applicant currently experiences "difficulty with grades and steps" as that term appears in the Guide. In reaching that conclusion, the Tribunal noted that Dr Harvey-Sutton reported that the Applicant advised her that she has good times and bad times and “sometimes has difficulties with these activities (those activities being steps and grades)”. The overall thrust of the evidence is that traversing slopes and grades was not a constant problem, only that it was likely to present a problem if she had to perform such actions repeatedly.
This would suggest that the symptoms of which Ms Acevedo complains are intermittent rather than constant. She reported to several of the practitioners that she could not walk up and down stairs or grades on a repetitive nature. If one takes the view that difficulty must encompass more than slight or intermittent and that such difficulty must occur other than when repetitive activities are undertaken, then the Applicant’s level of difficulty falls below this threshold.
The Tribunal was also mindful that a comparison needed to be made between the Applicant’s situation and a normal healthy person of the same age. The Applicant was, in her pre-injury state, a person of considerable physical dexterity, evidenced by the fact that she was a member of the State ice hockey team. Whilst she considers that the strength in her left knee has diminished post-injury, it is significant that Dr Boundy has expressed an opinion to the contrary. The Tribunal also considered that other physical conditions, such as ankle and back problems, are likely to affect any limitation in the repetitive traversing of slopes and stairs.
Having regard to all those matters, the Tribunal affirms the decision under review.

I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Cowdroy, Member

Signed: ..S Oliver.

Associate

Date of Hearing  26 November 2003
Date of Decision  7 May 2004
The Applicant represented herself
Counsel for the Respondent     Mr C Clark
Solicitor for the Respondent     Dibbs Barker Gosling