Armitage v Tenix Defence Pty Ltd - [2008] WADC 150

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: ARMITAGE -v- TENIX DEFENCE PTY LTD [2008] WADC 150

CORAM: MARTINO DCJ

HEARD: 21 & 22 AUGUST, 4 SEPTEMBER 2008

DELIVERED : 14 OCTOBER 2008

FILE NO/S: CIV 1356 of 2007

BETWEEN: JOHN PATRICK ARMITAGE
Plaintiff
AND
TENIX DEFENCE PTY LTD
Defendant

Catchwords:

Workers' compensation - Assessment of degree of permanent whole of person impairment
Practice and procedure - Request by the defendant for the opportunity to make further closing submissions - Costs of reconvened hearing

Legislation:

Workers' Compensation and Injury Management Act 1981

Result:

Plaintiff's degree of permanent whole of person impairment found to be 15 per cent

Representation:

Counsel:

Plaintiff: Mr L Gandini
Defendant: Mr M W Schwikkard

Solicitors:

Plaintiff: Chapmans
Defendant: Jackson McDonald

Case(s) referred to in judgment(s):

Woollahra Municipal Council v Jeffries [1981] 1 NSWLR 377

MARTINO DCJ: On 16 December 2005 the plaintiff, Mr Armitage, was injured in an accident in the course of his employment by the defendant, Tenix. In this action he claims damages for those injuries. Tenix admits the accident and that the injuries suffered by Mr Armitage were caused by the breach of its duty of care to him. The amount of damages was agreed before trial. The only issue between the parties is whether Mr Armitage's degree of permanent whole of person impairment is at least 15 per cent. If "the court is satisfied that" Mr Armitage's degree of permanent whole of person is at least 15 per cent then he is entitled to judgment for the agreed damages. If it is not then, by reason of s 93K(4)(d) of the Workers' Compensation and Injury Management Act 1981, damages cannot be awarded to him.

Mr Armitage's accident, injuries, treatment and rehabilitation

Mr Armitage was born on 10 February 1945. He was aged 60 on the day of the accident. He has been employed as a welder for substantially all of his working life and he was employed in that capacity on the day of the accident.
Tenix' business includes the repair and maintenance of ships. Tenix' business requires welding to be done on board ships and in its fabrication shop. On the day of the accident Mr Armitage was working on a ship. He was welding while standing on scaffolding when the scaffolding collapsed, causing him to fall awkwardly. He suffered a fracture of the lateral tibial plateau of the left leg and a spiral fracture of the fibula at the left ankle.
Mr Armitage's fractured tibia required surgery in which the fracture was grafted with calcium phosphate and supported with a buttress plate. The ankle fracture was only slightly displaced and was treated with a below knee cast.
In early February 2006 the cast was taken off Mr Armitage's leg and he commenced physiotherapy treatment. He returned to part time work at Tenix approximately six months after the accident. He gradually built up his hours of work and now works full time. However he has not been able to return to all of his pre-accident work.
Mr Armitage's evidence in chief of his current symptoms was that the description contained in a report dated 26 May 2008 by Dr Alan Home, a consultant medical practitioner in occupational medicine who saw Mr Armitage at the request of Tenix' insurer, was "pretty accurate" (T 54), but that he suffered more pain in his ankle than appeared in that report.
In that report Dr Home recorded Mr Armitage's report of his current symptoms as follows:
"Current Symptoms
Mr Armitage reports that he does experience activity‑related ache at the anterolateral aspect of his left knee. This is present by midday and persists over the final three hours of his working day. Pain is immediately relieved by resting the knee in an elevated position.
He describes morning stiffness, settling over a period of 30 minutes.
He is unable to kneel over his left knee. He avoids deep squatting. He is able to climb small steps in an alternating fashion, but is required to lead with his right leg when climbing deep steps. He describes discomfort when climbing slopes.
To direct inquiry, he denies locking or giving way within the knee joint.
There is occasional mild swelling in the joint.
At the left ankle he describes occasional momentary sharp pain felt laterally at the ankle. There is no pain at rest or with normal walking.
He describes a sensation of instability when placing his left foot over uneven ground.
To direct inquiry, he has not been provided with balancing exercises to improve joint position sense (proprioception).
Abilities/Disabilities
He is reporting a normal tolerance for most activities of daily living, within his symptom tolerances.
He is able to sleep through the night.
He undertakes light domestic chores. His wife performs most of the activities. He does on occasion empty the dishwasher. He will perform spot vacuuming and gardening.
He lives with his wife. He has one non‑dependent daughter.
He has trialled playing golf but found walking around several holes caused exacerbation of symptoms. He is hopeful of returning to a trial of this in the future. He has been able to return to fishing from a boat."
Mr Armitage also saw Dr Christopher Hammersley, a consultant occupational physician, at the request of Tenix' insurer. In a report dated 23 July 2007 Dr Hammersley described Mr Armitage's current symptoms as follows:
"CURRENT SYMPTOMS
He finds his left ankle no trouble, i.e. no limitation, but it does occasionally ache on cold mornings.
He feels left knee pain as a dull discomfort just below the lateral margin of the knee joint. This increases to become an ache by the end of the shift. The ache is easily relieved by elevating his leg.
The left inferolateral knee ache is more prominent at the end of the shift, and more prominent at the end of the shift on Friday than on Monday.
He can walk quite easily for half an hour, but has not yet tried to play golf. He finds one hour of dawdling around the mall causes increased left knee ache.
The knee ache at best is 0.5‑1/10 in severity. By the end of the day, it may have risen to 3/10. On Friday evening, it may be 4/10. If he knocks his knee against something, sharp pain will ensue, and he rated this at 8/10, which means that it is totally disruptive and he need to wait some seconds for it to settle.
Standing is tolerated, as is part‑crouching or rising from a seat. Walking up slopes or stairs causes pulling discomfort below the lateral knee joint.
He does not kneel on the left knee because of discomfort. He can kneel on his right knee, i.e. a one‑leg kneel. He rises from this by using his hands on the floor, to decrease left knee loading.
He avoids sustained low postures such as deep crouching or prolonged squatting.
He can walk quickly but this causes a pulling feeling in the left foreleg just below the lateral knee joint.
If he twists, turns or corners in a confined space he can get medial knee pain. This does not persist. He never runs or darts."
Mr Armitage's evidence was that the description was "about right" (T 58), but that it was not correct to say that the left ankle gave him no trouble, the ankle gives him quite a bit of trouble.
In an undated report written after he had seen Mr Armitage on 30 July 2008 at the request of Mr Armitage's solicitors Dr David Kennedy, a medical practitioner who practises in medico-legal and musculoskeletal medicine, described Mr Armitage's symptoms in the following terms:
"Mr Armitage was re‑assessed on the 27^th March 2007, at which time he had plateaud and at that time, he stated that he had not received any further treatment on his left knee joint and his left ankle joint. He was having difficulty putting pressure on his left knee joint with kneeling nor could he crouch and squat and come up from that position, and he had difficulty with stairs because of weakness in his left ankle joint.
Mr Armitage was having twinges of pain in the left ankle joint with stiffness and the main problems in both the left knee and ankle joints with weakness and he walked with a limp, especially as the day progressed.
Mr Armitage was attempting to work as a welder on light duties, avoiding kneeling, squatting, and crouching down, and was also having difficulties standing for prolonged periods of time, when he usually took most of the weight on his right leg.
Mr Armitage was finally assessed on the 30^th July 2008, at which time he stated that he remained much the same over the past four months, with aching and pain in both the left knee and ankle joints. He was unsteady on uneven ground, as his left foot tended to roll over, and he had difficulty standing on ladders or steps. His left knee and ankle joint, feel much weaker, and he cannot load the knee, such as squatting or crouching down and then coming up from that position without assistance."
Mr Armitage's evidence was that he thought that Dr Armitage had covered it quite well.
Mr Armitage also gave evidence that he is no longer able to work on board ships because he is unable to kneel or squat and so is unable to work in confined spaces. He has difficulties climbing and descending stairs. He is able to work in Tenix' fabrication shop. While there is some overtime work available to him in the fabrication shop it is less than the overtime available on the ships. For that reason the overtime that he works now is less than the overtime he worked before the accident and is less than the overtime he would work if he were not restricted as a result of the injuries he suffered in the accident.
Mr Armitage was cross-examined about his evidence that since his accident he worked less overtime than he worked before the accident. Mr Armitage agreed that he now works some overtime but maintained that it was less than he could work if he were able to work on ships, where more overtime is available.
Mr Armitage also gave evidence that at home there are jobs that he could do before the accident which he is no longer able to do. He had a wooden floor laid at his home. Prior to the accident he would have done that, but he was unable to do so and his son-in-law did the job for him. He has also had to ask his son-in-law to clean the gutters and do similar jobs because he finds it painful to stand on ladders. He is able to do domestic jobs such as vacuuming the floor and mowing the lawn, but he is unable to get down on his knees and work in the garden.
Mr Armitage was cross-examined as to why he did not contact Dr Home if he felt that Dr Home's report was not accurate. His evidence was that he did not know he could do so. I accept that Mr Armitage did not see it as his role to contact a medical practitioner if he felt that something in the practitioner's report was not correct. The fact that he did not contact Dr Home does not lead me to doubt his evidence.
I find Mr Armitage to be an honest and straightforward witness who did not overstate the consequences of the injuries he suffered in the accident. He gave his evidence in a quiet reserved manner and, no doubt, he spoke in that way to Dr Home and to Dr Hammersley when he saw them. This may have lead to a misunderstanding as to the extent of the problems that Mr Armitage suffers with his ankle. I accept Mr Armitage's evidence.

The legislation

As Mr Armitage's accident occurred on 16 December 2005 his claim for damages is to be determined in accordance with Pt IV Div 2 Subdivision 3 of the Act: s 93I(1). For claims to which that subdivision applies damages in respect of a personal injury by accident in the course of a worker's employment can only be awarded against the worker's employer if the worker elects to retain the right to seek damages, the Director Dispute Resolution has registered the election, court proceedings are commenced within the time limited by the Act and regulations and the court is satisfied that the worker's degree of permanent whole of person impairment is at least 15 per cent: s 93K(4). A worker can only elect under s 93K(4) to retain the right to seek damages if the worker and the employer agree that the worker's degree of permanent whole of person impairment is at least 15 per cent and also agree as to whether or not the worker's degree of permanent whole of person impairment is at least 25 per cent or the worker's degree of permanent whole of person impairment has been assessed to be a percentage that is not less than 15 per cent and, in either case, the Director has recorded the agreement or assessment: s 93L(2). If a claim for weekly payments of compensation has been made with respect to the worker's injury an election cannot be made more than one year after that claim: s 93L(4) and s 93M(1). Section 93M provides a number of situations in which that one year period, which is defined as the "termination day", can be extended. The Director can extend the period where an approved medical specialist has certified in writing that the worker's condition has not stabilised to the extent required for a normal evaluation of the worker's degree of permanent whole of person impairment and recommends a day until which the termination day be extended: s 93M(4).
Regulations may provide for the form and content of the matters provided for in Pt IV Div 2 Subdivision 3 and for the power of the Director to refuse to register an election if not satisfied that the worker has been properly advised of the consequences of the election: s 93S. Those regulations have been made: reg 22 Workers' Compensation and Injury Management Regulations 1982.
In determining whether or not it is satisfied that the worker's degree of permanent whole of person impairment is at least 15 per cent the court is not bound by an assessment recorded by the Director under s 93L(2), but may admit it as evidence relevant to the worker's degree of permanent whole of person impairment: s 93K(13).
The degree of permanent whole of person impairment means the degree evaluated as described in s 146A and s 146C: s 93H. Subject to s 146C a worker's degree of permanent whole of person impairment is to be evaluated, as a percentage, in accordance with the WorkCover Guides: s 146A(1). If a worker and the employer do not agree about the evaluation of the worker's degree of permanent whole of person impairment it is to be assessed by an approved medical specialist or, if the Act so provides, by an approved medical specialist panel: s 146A(2) and a request for assessment by an approved medical specialist is to be made in accordance with the regulations: s 146A(3). The Act does not provide for the assessment to be made by an approved medical specialist panel for an assessment for the purposes of Pt IV Div 2 Subdivision 3. Section 146A(2) "does not prevent a finding" that the worker's condition has not stabilised to the extent required for a normal evaluation of the worker's degree of permanent whole of person impairment to be made in accordance with the WorkCover Guides: s 146C(2).
An approved medical specialist making an assessment for the purposes of Pt IV Div 2 Subdivision 3 is required to give to each of the worker and the employer, in writing in accordance with the regulations a report of the worker's degree of impairment, including details of the assessment and reasons justifying the assessment and a certificate specifying the worker's degree of impairment: s 146H(1). An approved medical specialist giving a certificate that a worker's condition has not stabilised to the extent required for a normal evaluation to be made in accordance with the WorkCover Guides is required to give to each of the worker and the employer, in writing in accordance with the regulations a report of any relevant details provided by the worker and brief reasons justifying the finding certified: s 146H(2). If any of the documents described in s 146H(1) or (2) is produced to the Director for the purposes of Pt IV Div 2 Subdivision 3 and a factual error is apparent on the face of the document, the Director may reject the document and require the approved medical specialist to replace it with a correct document: s 146H(5).
A decision of an approved medical specialist, including an assessment by the specialist under Pt IV Div 2, is not amenable to judicial review: s 146J.

The WorkCover Guides

WorkCover WA may issue directions with respect to the evaluation of degree of impairment: s 146R(1). These directions are the WorkCover Guides: s 5(1). WorkCover WA is the name of the WorkCover Western Australia Authority, a body corporate that administers the Act: s 5(1), s 94 and s 100.
WorkCover WA has issued WorkCover Guides. The first edition was issued in November 2005. The second edition was issued on 26 November 2007. Neither party submitted that there was any relevant difference between the two editions for the purposes of this action. In these reasons a reference to the WorkCover Guides is a reference to the second edition. Chapter 5 of the WorkCover Guides deals with the assessment of permanent impairment "of the lower extremities". It provides that subject to the modifications contained in ch 5 of the WorkCover Guides, ch 17 of the fifth edition of the American Medical Association's Guide to the Evaluation of Permanent Impairment ("AMA5") applies to the assessment of permanent impairment of the lower extremities.
Counsel for Tenix tendered into evidence an extract from ch 1, an extract from ch 16 and the whole of ch 17 of AMA5.
Chapter 17 of AMA5 provides criteria for evaluating permanent impairment of the lower extremities. It contains detailed provisions and examples of assessments. The impairment evaluations pertain to conditions that have reached maximum medical improvement. It provides that for evaluation purposes the lower extremities are divided into six sections: the feet, the hindfeet, the ankles, the legs, the knees, the hips and the pelvis. Thirteen methods can be used to assess the lower extremities. The thirteen methods are classified into three non-mutually exclusive categories of assessment types to reflect their primary mode of assessment: anatomic, functional or diagnosis based. There are nine anatomic assessment methods: limb length discrepancy, muscle atrophy, ankylosis, amputation, arthritis of joints, skin loss, peripheral nerve injury, vascular and causalgia/reflex sympathetic dystrophy. There are three functional assessment methods: range of motion, gait derangement and muscle strength (manual muscle testing). The one diagnosis based assessment method includes fractures, ligament injuries, meniscectomies, foot deformities, hip and pelvic bursitis and lower extremity joint replacements.
It provides in ch 17.2:
"Anatomic changes … are assessed in the physical examination and supported with clinical studies.
…
Diagnosis-based estimates are used to evaluate impairments caused by specific fractures and deformities…
Functional impairments are chosen for conditions when anatomic changes are difficult to categorize or when functional implications have been documented.
…
After all potentially impairing conditions have been identified and the correct ratings recorded, the evaluator should select the clinically most appropriate (ie, most specific) method(s) and record the estimated impairment for each."
Chapter 5 of the WorkCover Guides provides:
"5.2Assessment of the lower extremity involves physical evaluation, which can use a variety of methods. In general, the method should be used that most specifically addresses the impairment present. For example, impairment due to a peripheral nerve injury in the lower extremity should be assessed with reference to that nerve rather than by its effect on gait.
5.3There are several different forms of evaluation that can be used, as indicated in Sections 17.2b to 17.2n (pp 528-554 AMA5.) Table 17-2 (p 526 AMA5) indicates which evaluation methods can be combined and which cannot. It may be possible to perform several different evaluations as long as they are reproducible and meet the conditions specified below and in AMA5. The most specific method of impairment assessment should be used."

It would seem that the reference to the most specific method of impairment assessment in s 5.3 of the WorkCover Guide is a reference to the clinically most appropriate method, because that is how the term is used in s 17.2 of AMA5.

Approved medical specialists

WorkCover WA may designate a person as an approved medical specialist if the person is a medical practitioner who, in WorkCover WA's opinion, is sufficiently trained in the use of the WorkCover Guides and otherwise satisfies criteria for designation as an approved medical specialist that WorkCover WA applies: s 146F(1). Dr Home, Dr Hammersley and Dr Kennedy are approved medical specialists.
WorkCover WA may require an approved medical specialist to enter into a written agreement with it about the procedures to be followed, the fees to be charged for and other matters relating to the performance of functions as an approved medical specialist and other matters relevant to the implementation of the Act: s 146F(3). It may cancel the designation of a person as an approved medical specialist: s 146F(4) and is required to monitor assessments for consistency and monitor compliance with the Act and with agreements made under s 146F(3): s 146F(5).

The recording of the assessment of Mr Armitage's degree of permanent whole of person impairment

On 1 November 2006 Mr Armitage made a written request for assessment of his degree of permanent impairment by an approved medical specialist. The request was made under s 146A(3). It was addressed to Dr Kennedy.
The request was for an assessment for the purposes of Pt IV Div 2 Subdivision 3 and so was a request for an assessment of his degree of permanent whole of person impairment. On 23 November 2006 Dr Kennedy certified that Mr Armitage's condition had not stabilised and that in his opinion the "termination date" should be extended to 30 June 2007. The reference to the termination date is obviously intended to be a reference to the termination day provided for in Pt IV Div 2 Subdivision 3 of the Act.
On 12 April 2007 Dr Kennedy certified that Mr Armitage's degree of permanent impairment was 15 per cent whole person impairment and provided a report containing reasons for that assessment. Both the certification of Dr Kennedy of 23 November 2006 and of 12 June 2007 satisfied the requirements of s 146H. On 18 June 2007 the Director recorded under s 93L(2) Dr Kennedy's assessment of Mr Armitage's degree of permanent whole of person impairment.

The assessment by Dr Kennedy

Dr Kennedy assessed Mr Armitage's degree of permanent impairment by assessing his strength deficit. The dates of his examinations of Mr Armitage were 9 November 2006 and 27 March 2007. The impairment rating and rationale, calculation of the degree of permanent impairment and reasons for arriving at the calculation were:
"Impairment rating and rationale (detail the relevant references used in assessing the percentage of permanent impairment as per the WorkCover Guides)

Body part or system.

Chapter number

Table/Figure number.

% Of permanent impairment.

Left knee joint

Chap: 17

Table: 17.8

Grade 4 straight deficit flexion = 5% whole person impairment.

Grade 4 extension strength deficit = 5% whole person impairment.

Left ankle

Chap: 17

Table: 17.8

Grade 4 extension strength deficit = 5% whole person impairment.

The calculation of the worker's degree of permanent impairment
(show how the degree of permanent impairment was calculated, detail if any combination of body part or systems)

Mr Armitage has a strength deficit against resistance of flexion/extension at the knee joint and extension at the ankle joint, which was assessed under Table 17.8 in Chap. 17 of the American Medical Associations Guide to the Evaluation of Permanent Impairment

Whole person impairment = 5% + 5% + 5% = 15%, utilising the combined values chart.

Statement as to the reasons for arriving at the calculation of the worker's degree of permanent impairment

Mr Armitage was assessed in accordance with the WorkCover WA Guides to Evaluation of Permanent Impairment, utilising the American Medical Associations Guide to the Evaluation of Permanent Impairment, 5^th edition, Chap. 17 – Table 17.8, and Mr Armitage was assessed on two separate occasions and was found to have a Grade 4 strength deficit against resistance of flexion/extension at the knee joint and the extension of the foot at the ankle joint.

…"

Section 17.2e of AMA5 deals with manual muscle testing. It provides:
"Measurements can be made by one or two observers. If the measurements are made by one examiner, they should be consistent on different occasions. If made by two, they should be consistent between examiners. Even in a fully cooperative individual, strength may vary from one examination to another, but not by more than one grade. If they vary by more than one grade between observers, or by the same examiner on separate occasions, the measurement should be considered invalid. In those individuals, impairment estimates should not be made using this section."
Table 17-7 of AMA5 shows the criteria on which estimates and grades of muscle function of the lower extremities are based. The grades range from grade 0 in which the muscle function is described as no contraction to grade 5, in which the muscle function is described as active movement against gravity with full resistance. In grade 4 the muscle function is described as active movement against gravity with some resistance. Table 17-8 is a list from which it is possible to convert a person's lower extremity function to, amongst other things, the whole of person impairment. A grade 4 impairment of knee flexion is a 5 per cent whole of person impairment, a grade 4 impairment of knee extension is a 5 per cent whole of person impairment and a grade 4 impairment of ankle extension is a 5 per cent whole of person impairment.
At the request of Mr Armitage's solicitors Dr Kennedy saw Mr Armitage on 30 July 2008 and provided an undated report. That report was not in the form provided for under s 146H. In that report Dr Kennedy again used the muscle testing method to assess Mr Armitage's whole of person impairment. On this occasion Dr Kennedy also found grade 4 strength deficits at the left knee and grade 4 strength deficit at the left ankle and assessed Mr Armitage's whole of person impairment at 15 per cent.

The assessment by Dr Hammersley

Dr Hammersley saw Mr Armitage on 7 March 2006 and provided a written report on the same day in which he expressed the opinion that Mr Armitage would be left with a permanent disability in his left knee, but that it was too early to assess the extent of that disability. Dr Hammersley measured Mr Armitage's quadriceps and found mild wasting in the left quadriceps – the right quadriceps girth was 49.7 centimetres and the left quadriceps girth was 48.5 centimetres. In Dr Hammersley's opinion Mr Armitage's left ankle would improve over time and he may well have no disability.
On 23 July 2007 Dr Hammersley again saw Mr Armitage and he provided a report on the same day. By the date of that review Mr Armitage was back at work at Tenix. Dr Hammersley recorded that Mr Armitage was engaged in alternative duties in the "pipe shop", which I understand to be the fabrication shop, where all his jobs were placed on trestle stands. Dr Hammersley wrote that Mr Armitage "finds his left ankle no trouble, ie no limitations, but it does occasionally ache on cold mornings." As I have noted earlier in these reasons I accept Mr Armitage's evidence that his ankle disability is greater than recorded by Dr Hammersley.
Dr Hammersley also noted that Mr Armitage suffered knee pain, which became worse during a working day and working week. Knocking his knee also caused an increase in his pain.
Dr Hammersley again measured Mr Armitage's quadriceps. Whereas the measurement on 7 March 2006 had indicated mild muscle wasting on the left side the left quadriceps were now larger than the right. The right quadriceps girth was 49.2 centimetres and the left quadriceps girth was 50.6 centimetres. Dr Hammersley's evidence was that this was a good sign, indicating that Mr Armitage had followed the exercise instructions that he had been given and was using the left leg in a normal manner in day to day activity.
Dr Hammersley found no swelling of Mr Armitage's left ankle, no deformity and no loss of movement range. The left anterior cruciate ligament was lax and there was prominence on the tibia, caused by the metal plate. In Dr Hammersley's opinion Mr Armitage's residual symptoms related to the presence of the plate and screws rather than the knee itself.
On his examination on 23 July 2007 Dr Hammersley assessed Mr Armitage as having reached maximum medical improvement and that a permanent impairment assessment could be made. Dr Hammersley carried out a permanent impairment assessment. He did so using a diagnosis based assessment. In his report dated 23 July 2007 Dr Hammersley described his method of assessment as follows:
"I believe that a permanent impairment assessment can be made because he has reached Maximal Medical Improvement.
Mr Armitage presently exhibits a permanent impairment of the left leg at / above the knee pursuant to Item 67 of the 2^ndSchedule of 12.5%. This is calculated from the table of Diagnosis‑Related Estimates on page 546 of AMA5, Table 17‑33:
·Lateral tibial plateau fracture, small amount of displacement: 7% impairment of lower extremity
·Mild ACL laxity: 5% impairment of lower extremity.
These combine to a lower leg permanent impairment % of 12%. (Page 604, AMA5)
This converts to Whole Person Impairment (WPI) of 5% (Table 17‑3, p527, AMA5)
Item 67 in the 2^nd Schedule provides a formula which is to be applied to the whole person impairment to arrive at the impairment of the left leg at the knee:
Formula for Item 67, 2^nd Schedule of the Act
Permanent Impairment of Left Leg at the knee = 100 X WPI/40
  = 100 X 5 / 40
  = 12.5% permanent
  impairment of the
left leg at the knee
The reason I calculated the impairment this way is that the movement range is normal, and there is no muscle wasting; these can not yield any rating.
The other means available to calculate the loss of function, narrowing of cartilage interval of the joint space on weight‑bearing x‑ray, yields a lower extremity impairment % that is the same as, or less than, the DRE method. It is not appropriate to calculate future loss of joint space, because that is unknowable in degree and time of manifestation. The rules of assessment indicate that he is to be assessed as he presents physically on the day of the assessment."
According to Table 17-33 in AMA5 for an undisplaced plateau fracture the lower extremity impairment is 5 per cent and for a displaced fracture of 5°‑ 9° the lower extremity impairment is 12 per cent. In arriving at a 7 per cent impairment of the lower extremity by reason of the plateau fracture Dr Hammersley appears to have assessed that the "small amount of displacement" to which he referred in his report was less than 5°.
Table 17-33 provides that for mild cruciate or collateral ligament laxity the lower extremity impairment is 7 per cent. In allocating a 5 per cent lower impairment extremity for the mild anterior cruciate ligament laxity that he found Dr Hammersley appears to have allocated an impairment less than that provided for in Table 17-33.
Dr Hammersley did not carry out a muscle strength assessment of Mr Armitage's impairment. In a report dated 12 October 2007 and in his oral evidence at trial Dr Hammersley explained that he did not think that it was an appropriate method of determining Mr Armitage's impairment. It is not encouraged by WorkCover's Approved Medical Specialist training sessions and it is a rating method of last resort to be used where no better method exists. Further Dr Hammersley's anticipated that it would produce a lower assessment than the assessment that he made. In Dr Hammersley's opinion a grading of four out of five applies "where the worker is really quite weak… The worker is raising the leg against resistance – against gravity, and when resistance is applied he goes down. That's what it's supposed to be. It's not the worker is exerting maximal strength and I could force him down… and maybe show a few per cent of weakness…technically you could construe it that way, but that's not the spirit of the test." (T 38).
Dr Hammersley did not receive a written request for assessment of Mr Armitage's degree of permanent impairment by an approved medical specialist under s 146A(3) and his report was not in the form provided for under s 146H and the regulations.

The assessment by Dr Home

Dr Home is an occupational physician. He sits on the WorkCover Expert Medical Committee established by WorkCover WA and he trains medical practitioners seeking to be designated as approved medical specialists in the use of the WorkCover Guides.
Dr Home examined Mr Armitage on 26 May 2008 and provided a report of the same date. That report contains an error in that it refers to Mr Armitage's attendance having been on 26 July 2008.
Dr Home examined Mr Armitage. There was a 1 centimetre disparity between the circumference of the right and left thighs, measured 10 centimetres above the patellae, the same point at which Dr Hammersley had measured Mr Armitage. There was a 5 millimetre disparity between the circumference of the calves. Dr Home found that Mr Armitage had a good range of movement at the left knee, which he measured at 0° to 125°, compared with 0° to 130° in the right knee. He found mild cruciate ligament laxity in the left knee. There was a normal range of ankle movement.
He tested Mr Armitage's muscle strength and found the power of left thigh musculature was grade 5 across the left knee flexion and extension. He also found the muscle strength in the left ankle was grade 5 for dorsiflexion, plantar flexion, hind foot inversion and eversion. There was mild disparity in balance in the left ankle.
Dr Home considered that Mr Armitage had reached maximal medical improvement and that he had been left with a permanent impairment. He assessed that impairment by several of the methods provided for in AMA5. He assessed the muscle atrophy demonstrated by the 1centimetre discrepancy between the circumference of the thighs as a mild impairment which constituted a 1 per cent whole person impairment or 3 per cent lower extremity impairment. There was no quantifiable impairment due to calf atrophy as the disparity was only 5 millimetres.
In his report Dr Home recorded that Mr Armitage told him that his lower limb strength had improved, but he "reports a perception of mild weakness in his left lower limb." In Dr Home's opinion Mr Armitage did not qualify for a rating of permanent impairment on the basis of manual muscle testing as there was a grade 5 power of resisted movement of knee flexion and extension, ankle flexion and extension, inversion and eversion. In Dr Home's opinion Mr Armitage had no permanent lower limb weakness in relation to his left knee or ankle complaints.
The mild impairment of motion of the left knee that Dr Home found did not qualify for a rateable impairment.
Dr Home assessed Mr Armitage's impairment using the diagnosis based assessment method. He found that Mr Armitage had sustained a tibial plateau fracture that had united without displacement, with a minor step deformity. "The impairment rating for tibial plateau fracture in accordance with Table 17‑33 is 5% lower extremity or 2% whole person impairment." This level of impairment appears in Table 17-33 for an undisplaced tibial plateau fracture. Dr Home assessed the mild cruciate laxity at 3 per cent whole person impairment or 7 per cent lower extremity impairment. This level of impairment appears in Table 17-33 for mild cruciate ligament laxity. Dr Home added the 2 per cent whole person impairment for the tibial plateau fracture to the 3 per cent impairment for the cruciate laxity to arrive at 5 per cent whole person impairment.
It was not possible to combine the impairment rating for muscle atrophy with the diagnosis based estimate as that is prohibited by the cross usage chart in Table 17-2 of AMA5. In Dr Home's opinion as the impairment rating for diagnosis based estimates exceeded that related to muscle atrophy it was reasonable to rate Mr Armitage's impairment on the basis of the diagnosis based estimate.
Dr Home did not receive a written request for assessment under s 146A(3) and his report was not in the form provided for under s 146H and the regulations.

The differences between the assessments of Dr Home and Dr Hammersley

Dr Home and Dr Hammersley were both of the opinion that Mr Armitage's impairment should be assessed by the diagnosis based assessment method and used that method to produce a 5 per cent whole person impairment. However the process by which each of them arrived at that assessment was quite different.
Dr Home assessed the impairment for the tibial fracture at 2 per cent, the assessment appropriate for an undisplaced fracture. Dr Hammersley assessed the impairment of the lower limb for that fracture at 7 per cent, which is above the assessment of 5 per cent of lower limb impairment provided by AMA5 for an undisplaced fracture and less than the assessment of 12 per cent provided for by AMA5 for a displaced fracture of 5°‑ 9°.
Dr Home assessed the impairment for the cruciate laxity at 3 per cent, the assessment appropriate for mild cruciate laxity. Dr Hammersley assessed the impairment of the lower limb for that laxity at 5 per cent, which is less than that provided for in Table 17-33 for mild cruciate laxity. Dr Hammersley then added the two lower limb impairments to produce a 12 per cent total, which equates to a 5 per cent whole of person impairment under Table 17-3 of AMA5.
The fact that Dr Home assessed the whole of person impairment while Dr Hammersley assessed the lower limb impairment and then converted it to whole of person impairment is not significant.
It does not make any difference to the amount of whole of person impairment which route is used to calculate whole of person impairment.
The significant differences between Dr Home and Dr Hammersley are that Dr Home assessed the tibial fracture as undisplaced whereas Dr Hammersley assessed it as displaced and that Dr Home assessed the cruciate laxity at the level appropriate for mild laxity whereas Dr Hammersley assessed it at less than provided for in AMA5 for mild laxity.

Interpretation of s 93K(4)(d)

Counsel for Mr Armitage submitted that the Court's task under s 93K(4)(d) is to determine whether the worker's degree of permanent whole of person impairment has been evaluated in accordance with s 146A and s 146C as being at least 15 per cent. He submitted that as Dr Kennedy's assessment was made in accordance with the procedures provided for in the Act I should be satisfied that Mr Armitage's degree of whole of person impairment is at least 15 per cent. He contrasted Dr Kennedy's assessments with those of Dr Hammersley and Dr Home which were not in the form provided for by s 146H. Counsel for Tenix submitted that the Court's task under s 93K(4)(d) is to determine whether the worker's degree of permanent whole of person impairment is at least 15 per cent.
The interpretation contended for by counsel for Mr Armitage is suggested by the definition of permanent whole of person impairment in s 93H and by s 146A(2) which provides that, in the absence of an agreement, the worker's degree of impairment is to be assessed by an approved medical specialist. This interpretation is also suggested by the provision in s 146F(3) that WorkCover may require an approved medical specialist to enter into an agreement about the procedures to be followed and other matters relating to the performance of function as an approved medical specialists. If an approved medical specialist is effectively subject to the direction of WorkCover as to how an assessment of a worker's degree of impairment is to be assessed then it seems surprising that a court, which could not be subject to such a direction, might make a finding for the purposes of the Act which is different to an assessment made in accordance with such a direction. I also note that to become an approved medical specialist a person must, in WorkCover's opinion, be sufficiently trained in the use of the WorkCover Guides. A judge does not have the benefit of that training. The interpretation contended for by counsel for Mr Armitage is also indicated by the provision in s 146J that an assessment of an approved medical specialist is not amenable to judicial review.

Notwithstanding these indications it is my view that the interpretation of s 93K(4)(d) contended for by counsel for Tenix is the correct one. The provision in s 93K(13) that the court is not bound by an assessment that is recorded under s 93L(2) makes clear, in my view, that the Court's function is more than simply to determine whether or not the procedures for the assessment and recording of a worker's degree of impairment have been complied with. This interpretation is also indicated by s 93K(4)(d) itself. Where rights may arise consequent upon the satisfaction of a court, it is ordinarily to be expected that the court will arrive at that state of mind by the normal judicial process, ie, by the hearing of evidence and considering the competing contentions: Woollahra Municipal Council v Jeffries [1981] 1 NSWLR 377 per Mahoney JA at 391. It is significant that the issue is to be determined by a court, not by an arbitrator under the dispute resolution procedures of Pt XI of the Act. If the issue to be resolved were to be only whether the procedures provided for in the Act had been complied with then that issue could be quickly dealt with by an officer of WorkCover under those dispute resolution procedures.
I am confirmed in this view by the Workers Compensation Reform Bill 2004's Explanatory Memorandum which provides that the court "must also be satisfied the worker's degree of permanent whole of person impairment is at least 15%." The word "also" indicates that the court must reach its own conclusions on the issue.
For these reasons I conclude that for a worker to be awarded damages in a claim to which Pt IV Div 2 Subdivision 3 applies the court must determine that the worker's degree of permanent whole of person impairment is at least 15 per cent. This means my task is to determine whether Mr Armitage's degree of that impairment, evaluated in accordance with the WorkCover Guides, is at least 15 per cent.
Although the assessments made by Dr Hammersley and Dr Home were not made after a request under s 146A(3) and their reports were not in the form provided for in s 146H and the regulations the evidence of those medical practitioners including those reports is relevant to the issue of whether the degree of Mr Armitage's permanent whole of person impairment is 15 per cent.
The fact that the requests and the reports are not in the form provided for by the Act and regulations does not mean that the evidence of those medical practitioners has any less weight. My task is to consider all the relevant evidence and determine whether Mr Armitage's degree of permanent whole of person impairment is 15 per cent.

The credibility of Dr Kennedy

Counsel for Tenix submitted that Dr Kennedy was a witness who lacked credit and that I should reject his evidence. He submitted that Dr Kennedy became hostile, defensive and sarcastic in cross-examination. He also attacked Dr Kennedy's evidence of his membership of professional associations and that he had assessed workers for Allianz Insurance.
On his letterhead Dr Kennedy has after his name letters that refer to his medical degrees and then the following letters: "FASMF, FACSP and FACSM". Dr Kennedy's evidence in chief was that he is a Fellow of the Australian College of Sports Physicians and a Fellow of the American College of Sports Medicine. In cross-examination counsel for Tenix asked Dr Kennedy what the letters on his letterhead stood for. Dr Kennedy's evidence was that he is a Fellow of the Australian Sports Medicine Federation, a Fellow of the Australian College of Sports Physicians and a Fellow of the American College of Sports Medicine.
Counsel for Tenix asked Dr Kennedy about a print out counsel said he had obtained from the internet which contained a list of Fellows of the Australian Sports Medicine Federation and which did not include Dr Kennedy's name. Dr Kennedy's evidence was that he no longer works actively in sports medicine, but that he was one of the founding Fellows of the Federation. Dr Kennedy also gave evidence that he had done a Fellowship of the Australian College of Sports Physicians and had passed it. Counsel for Tenix also asked Dr Kennedy about a document that he said was a directory provided to general practitioners for the purpose of referring patients to specialists in medical and surgical sub‑disciplines in Western Australia. Counsel said that Dr Kennedy's name was not listed in the directory in the sports medicine category. Dr Kennedy's evidence was that was because he does not practice as a sports physician.
In re-examination Dr Kennedy gave evidence that he felt that it was not appropriate for him annually to update his membership of the Australian College of Sports Physicians because he no longer practices in sports medicine. He ceased practicing in that field in 1999.
The evidence does not satisfy me that Dr Kennedy is not entitled to the Fellowships he gave evidence of or that he should know that it is not appropriate for him to claim those Fellowships when he no longer practises in the field of sports medicine.
Counsel for Tenix asked Dr Kennedy if he ever saw injured workers at the request of their employers. Dr Kennedy's evidence was that sometimes he did. Counsel for Tenix asked him whether since the Workers' Compensation and Injury Management Act 1981 had been amended in November 2005 he had issued a certificate under that Act at the request of an employer or an insurance company. Dr Kennedy's evidence was that about two weeks ago he had given a certificate to Allianz. The transcript (at T 16) shows that Dr Kennedy gave evidence that he gave the certificate to Alliance, but my note and recollection is that Dr Kennedy's evidence was Allianz. Counsel for Tenix asked Dr Kennedy what proportion of his patients he saw at the request of insurance companies or employers. Dr Kennedy's evidence was that he saw less than one per cent of his patients at the request of insurance companies or employers.
Tenix called evidence from Mr Stephen Fong who is employed by Allianz Australian Insurance Company in its workers' compensation division. Mr Fong's evidence was that in most cases he is involved in arranging for workers to be assessed for impairment for common law purposes. Dr Fong's evidence was that he has never referred a worker who is seeking a determination of whole person impairment under the Act to Dr Kennedy and that his enquiries with the claims staff that morning confirmed that they had not referred a worker to Dr Kennedy.
When giving his evidence Dr Kennedy seemed to be easily irritated when asked cross-examination, however I did not conclude from that irritation that Dr Kennedy was being dishonest or evasive. I did not conclude from Dr Kennedy's demeanour when giving evidence that he was an untruthful or unreliable witness.
I cannot conclude from the evidence that it is not appropriate for Dr Kennedy to claim the Fellowships he gave evidence of.
It seems from the evidence of Mr Fong that Dr Kennedy's evidence that he has recently reviewed a worker at the request of Allianz Insurance may be incorrect. It may be that Dr Kennedy is mistaken. It is possible that Mr Fong is mistaken or that he did not speak to all of the claims staff on the morning that he gave evidence, but I think it is more likely that Dr Kennedy is not correct because I think that Mr Fong is likely to know which medical practitioners Allianz instructs to carry out assessments of workers.
I do not conclude from Dr Kennedy's evidence that he had recently reviewed a worker at the request of Allianz Insurance that Dr Kennedy was not a reliable witness when giving his evidence as to his assessment of Mr Armitage. It is far more likely that Dr Kennedy was mistaken than that he intentionally or recklessly gave incorrect evidence. It is not something on which he would have anticipated a question and it is not something that I would have expected him to be familiar with in the absence of any indication that it was an area on which he would be asked to give evidence.
I do not conclude from Dr Kennedy's demeanour or from the content of his evidence that he is an untruthful or unreliable witness.

The credibility of Dr Home

I have referred earlier in these reasons to the facts that Dr Home sits on the WorkCover Expert Medical Committee established by WorkCover WA and that he trains medical practitioners seeking to be designated as approved medical specialists in the use of the WorkCover Guides. I have also referred to s 146F of the Act which provides that WorkCover WA may cancel the designation of a person as an approved medical specialist.
In cross-examination Dr Home gave evidence that the WorkCover Expert Medical Committee has conducted a detailed peer review of one doctor, but has not referred that doctor to the Director. Dr Home was reluctant to name that doctor, but it would appear from his evidence that the doctor is Dr Kennedy (T 93).
Counsel for Mr Armitage submitted that this demonstrated that Dr Home was a partisan witness and that his evidence should be rejected. I do not accept that submission. Dr Home has responsibilities as a member of the WorkCover Expert Medical Committee. I can see nothing in those responsibilities that preclude him assessing a worker and commenting upon an assessment of the worker by another medical practitioner even when that worker has been assessed by a medical practitioner who the Committee is reviewing.
Counsel for Mr Armitage was also critical of the fact that Dr Home's assessment came to the same conclusion as Dr Hammersley. As I have mentioned earlier in these reasons while Dr Home's assessment and Dr Hammersley's assessment were the same they reached their conclusions by different assessments of the impairment of the tibial plateau fracture and the cruciate ligament laxity. The fact that Dr Home came to the same conclusion as Dr Hammersley does not indicate to me that Dr Home has not carried out his assessment professionally and honestly.
I do not conclude from Dr Home's demeanour or from the content of his evidence that he is an untruthful or unreliable witness.

The credibility of Dr Hammersley

There was nothing about Dr Hammersley's demeanour or evidence which led me to conclude that he was not a truthful and reliable witness.

Evidence as to whether muscle strength testing is an appropriate method of assessing Mr Armitage's impairment

Dr Kennedy assessed Mr Armitage's degree of permanent impairment by assessing his muscle strength deficit. In cross-examination Dr Kennedy's evidence was that a medical practitioner should apply other methods of assessing a worker's impairment if they are available or appropriate before using the muscle testing method. In Dr Kennedy's opinion there was no other method of assessing Mr Armitage's impairment was appropriate. Dr Kennedy found that Mr Armitage had a full range of movement, he had no ligamentous laxity and no muscle wasting.
Dr Hammersley did not carry out a muscle strength assessment of Mr Armitage's impairment. He did not think that it was an appropriate method of determining Mr Armitage's impairment. It is not encouraged by WorkCover's Approved Medical Specialist training sessions and it is a rating method of last resort to be used where no better method exists.
Dr Home assessed Mr Armitage's muscle strength deficit and found no deficit. In Dr Home's opinion Dr Kennedy's use of manual muscle testing methodology was inconsistent with the correct use of AMA5. In his report dated 7 August 2008 Dr Home referred to s 16.8a of AMA5. Section 16 of AMA5 is concerned with the upper extremities. Dr Home quoted the following passage from s 16.8a:
"In a rare case, if the examiner believes the individual's loss of strength represents an impairing factor that has not been considered adequately by other methods in the Guides, loss of strength may be rated separately. If the examiner judges that the loss of strength should be rated separately in an extremity that presents other impairments, the impairment due to loss of strength could be combined with the other impairments only if based on unrelated aetiological or patho‑mechanical causes. Otherwise the impairment ratings based on objective anatomical findings take precedence. Decreased strength cannot be rated in the presence of decreased motion, painful conditions, deformities or absence of parts that prevent the effective application of maximal force in the region being evaluated."
Dr Home also referred to s 17 of AMA5 and wrote:
"It is of further relevance to note that the general principles for assessment of lower extremity impairment as detailed in the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th Edition recommend that functional impairments, including strength testing, should only be used when anatomical changes are difficult to categorise or when functional implications have been documented (see Discussion on page 525 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th Edition)."
Dr Home also referred to the fact that he is aware that during the WorkCover training module, approved medical specialists receive clear advice to use strength evaluation for impairment rating only as a last resort. They are also instructed to avoid the use of this methodology in patients with pain symptoms that preclude maximum execution of force.

Conclusion as to whether muscle strength testing is an appropriate method of assessing Mr Armitage's impairment

It seems clear to me from the evidence of all of the medical practitioners that their opinions as to when it is appropriate to use the muscle strength testing method of assessing impairment have been influenced by the training in the use of the WorkCover Guides that they have received. While that may be understandable my task is to apply the WorkCover Guides and, to the extent that the training is different from the Guides, the Guides apply, not the training.
Chapter 16 of AMA5 refers to the upper extremities. Chapter 17 deals with the lower extremities and it does not seem to me appropriate in determining whether to use the muscle strength method of evaluating impairment of a lower extremity to refer to ch 16 when ch 17 provides for the use of the method. Further, it seems to me that the passage in s 16.8a which Dr Home has quoted in his report dated 7 August 2008 may deal with a different issue than whether or not it is appropriate to use the muscle strength method. Only part of ch 16 was tendered into evidence, but s 16.8a seems to me to be dealing, at least in part, with the issue of when it is appropriate to combine different methods of assessment. For the lower extremity this issue is dealt with specifically in Table 17-2.
I have referred (in par 93) to the passage in Dr Home's report of 7 August 2008 concerning the use of functional impairments. Mr Armitage does have a functional impairment. It has been accepted by all medical practitioners in the passages in the reports which I have referred to or quoted in these reasons and I have expressed my conclusion as to that impairment. That impairment has resulted in a reduction in Mr Armitage's work capacity. He is no longer able to work on board ships.
There seems to me to be considerable uncertainty as to the extent of Mr Armitage's diagnosis based disability. Dr Hammersley found that Mr Armitage had mild anterior cruciate ligament laxity, but appears to have considered it so mild as to justify allocating an impairment rating less than provided for in AMA5. Dr Hammersley found that Mr Armitage had a small amount of displacement at his lateral tibial fracture. Dr Home found no displacement.
In the circumstances, where there are the functional impairments that I have found, it seems to me that the muscle strength testing method is the most appropriate method of assessing the degree of Mr Armitage's impairment.

Whether Mr Armitage had reached maximum medical improvement at the time of his assessment by Dr Kennedy

In his report dated 7 August 2008 Dr Home expressed the opinion that there was every reason to anticipate that at the time of Dr Kennedy's assessment Mr Armitage had not reached maximum medical improvement. At the time of Dr Home's examination of Mr Armitage on 26 May 2008 Mr Armitage told him that he was unable fully to weight bear until six months after the injury (which would have been 7 September 2006). He had only returned to his normal hours of work by nine months post injury (which would have been 7 December 2006). In Dr Home's opinion it is not surprising that Dr Kennedy detected evidence of grade 4 strength deficits at the left knee and the left ankle at the time of his clinical assessments in November 2006 and March 2007. In Dr Home's opinion those strength deficits reflected pain inhibition due to underlying joint pain and weakness due to relative disuse during the period in which Mr Armitage was not weight bearing on the left leg.
In Dr Home's view it is generally accepted that maximal physical rehabilitation, that is restoration of muscle bulk and strength, occurs slowly over a period of 12 months after a return to full weight bearing, so full muscle bulk would not be anticipated until at least mid 2007. Dr Home noted that Dr Hammersley found no evidence of severe wasting of the right thigh muscle on 23 July 2007 and that pain about the left ankle had resolved by that date.
Dr Home referred to the following passage in AMA5:
"Individuals whose performance is inhibited by pain or the fear of pain are not good candidates for manual muscle testing, and other evaluation methods should be considered by them." (p 531)
Dr Home noted that when he assessed Mr Armitage in May 2008, Mr Armitage was not demonstrating any weakness about the knee or ankle. Dr Home concluded that Mr Armitage's strength deficit was not permanent.
In Dr Home's opinion Dr Kennedy's assessment was flawed because:
"i)it was undertaken at the time when the examinee had not completed strengthening of his left lower limb musculature,
ii)was undertaken fifteen months post‑injury when further recover could be anticipated.
iii)involved use of manual muscle testing methodology when the examinee presented with clinical symptoms of knee and ankle joint pain impacting upon his capacity to undertake activities of daily living, including standing, walking, squatting and crouching. Therefore by corollary pain would also impact upon his co‑operation with manual muscle (strength) testing."
Dr Home also wrote a report dated 20 August 2008 in which he said that he could not determine any reason why Mr Armitage would present with grade 4 weakness four days after Dr Home had assessed muscle strength at grade 5. In Dr Home's opinion a normal capacity for walking on the flat and a capacity to work full time is inconsistent with grade 4 muscle weakness apart from variable subjective effort or pain inhibition.
It is Dr Home's view that the assessment performed by Dr Kennedy is unreliable as the apparent strength deficit that Dr Kennedy has detected is not consistent with Mr Armitage's clinical presentation when Dr Home saw him and his general level of reported function.
Dr Kennedy carried out three assessments of Mr Armitage's muscle strength. The first was on 9 November 2006. At that time, in Dr Kennedy's opinion, Mr Armitage had not achieved maximum medical improvement. The second was on 27 March 2007. At that time, in Dr Kennedy's opinion, Mr Armitage had achieved maximum medical improvement. The third was on 30 July 2008. By that time all of Drs Kennedy, Hammersley and Home were of the opinion that Mr Armitage had achieved maximum medical improvement. On each of these occasions Dr Kennedy assessed Mr Armitage as having grade 4 deficits at the left knee and at the left ankle.
When he saw Mr Armitage on 26 May 2008 Dr Home assessed Mr Armitage's muscle strength and found no assessable impairment. In Dr Home's opinion Mr Armitage did not have a grade 4 weakness. If he did have such a weakness Mr Armitage he would not have the strength to support his body weight all day.

In my view Dr Home's opinion that if Mr Armitage had grade 4 weakness of the knee and ankle he would not have the strength to support his body weight all day is not consistent with AMA5. Table 17-7 of AMA5 provides that grade 4 applies to "active movement against gravity with some resistance". Dr Home seems to me to read those words as meaning that the resistance must be greater than the words itself provide. I do not agree with his construction of the table. In my view if a person's muscle strength is that the person can achieve active movement against gravity with some resistance, but cannot achieve active movement against gravity with full resistance, then that person has grade 4 weakness.
Dr Kennedy has found the same muscle weakness on all three occasions that he has assessed Mr Armitage. I find that when Dr Kennedy reviewed Mr Armitage on 27 March 2007 Mr Armitage had reached maximum medical improvement.

Whether Mr Armitage's pain precluded manual muscle testing

As I have noted AMA5 provides at p 531 that individuals whose performance is inhibited by pain or the fear of pain are not good candidates for manual muscle testing. Dr Kennedy was aware that Mr Armitage suffered pain, but he was nevertheless of the view that Mr Armitage was a suitable candidate for manual muscle testing. It was not Dr Hammersley's opinion that he could not make an assessment of Mr Armitage's muscle strength. His view was that if he had done so it would have been low. Dr Home did carry out an assessment of Mr Armitage's muscle strength. He found the muscle strength to be grade 5.
AMA5 does not preclude a muscle strength assessment where a worker suffers pain. While Mr Armitage does suffer pain from time to time I find that neither that pain nor the fear of that pain made him an unsuitable candidate for manual muscle strength testing.

The degree of Mr Armitage's permanent whole of person impairment

I have referred to the assessment of Mr Armitage's muscle strength by Dr Kennedy and Dr Home. For reasons I have given I find that Dr Home did not make his assessment in accordance with AMA5.
Dr Hammersley did not carry out an assessment using the muscle strength testing method, but in his view it would have produced a lower assessment than the assessment that he made. I have quoted earlier in these reasons the evidence of Dr Hammersley at p 38 of the transcript.
It is my view that Dr Hammersley's opinion that a grade 4 assessment only applies where the worker is really quite weak is not consistent with Table 17-7 of AMA5. I have already expressed my opinion on that table when I referred to Dr Home's opinion. I conclude that Dr Hammersley's view was not in accordance with AMA5.
Dr Kennedy has assessed Mr Armitage on three separate occasions. On each of those occasions he assessed that Mr Armitage had a grade 4 deficit of flexion and extension at the left knee and a grade 4 strength deficit of extension at the left ankle. Dr Hammersley and Dr Home do not agree with those assessments. For reasons that I have given I conclude that the views of Dr Hammersley and Dr Home as to when a grade 4 weakness exists are not in accordance with AMA5. I accept Dr Kennedy's assessment that Mr Armitage has grade 4 weaknesses at the left knee and at the left ankle. Under Table 17-8 of AMA5 each of those weaknesses equates to a 5 per cent whole of person impairment, so that the total whole of person impairment is 15 per cent. I conclude that the degree of Mr Armitage's permanent whole of person impairment is 15 per cent.

Hearing on 4 September 2008

The trial took place on 21 and 22 August 2008. Tenix adduced evidence and so counsel for Tenix made the first closing address – O 34 r 5(4) of the Rules of the Supreme Court 1971. After counsel for Mr Armitage had made his closing address I reserved my decision.
By letter dated 27 August 2008 counsel for Tenix wrote to my Associate requesting that the court reconvene for a short period to enable him to make submissions on an issue or that he be given the opportunity to make written submissions. In that letter counsel for Tenix stated at the trial he had anticipated that he would be given a right of reply to counsel for Mr Armitage's closing submissions.
I reconvened on 4 September 2008 and heard further submissions. The point that counsel for Tenix canvassed was to submit that the fact that Dr Home is on the WorkCover Expert Medical Committee that has conducted a detailed peer review of Dr Kennedy was not a reason to reject his evidence. Counsel for Tenix has been successful on this point. Nevertheless there was no reason for him to think that he would be given a right of reply and there was, in my view, no reason why he could not anticipate the submission made by counsel for Mr Armitage. Further, if after the closing submissions of counsel for Mr Armitage, counsel for Tenix felt there was a point that he needed to canvass and had asked for the opportunity to do so I would have given him that opportunity at the time.
The hearing on 4 September 2008 should not have been required. For that reason and notwithstanding that Tenix was successful on the point I will order that Tenix pay the costs of the hearing on 4 September 2008 in any event. As Mr Armitage has been successful it may appear that the costs order would have no effect. However I consider it appropriate to make the separate costs order in case I am wrong in my conclusion on the issue that went to trial.