Bacic and Comcare
[2008] AATA 465
•5 June 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 465
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T200400132
GENERAL ADMINISTRATIVE DIVISION )
Re HELENA BACIC Applicant
And
COMCARE
Respondent
DECISION
Tribunal The Hon R J Groom (Deputy President) Date5 June 2008
PlaceHobart
Decision The decision under review is set aside and the matter remitted to the respondent with the following directions:
(a) The applicant is suffering a permanent impairment as a result of an injury suffered by her on the 4 May 1999 in the course of her employment;
(b) The degree of permanent impairment under Table 9.5 of the Guide to the Assessment of the Degree of Permanent Impairment is 20%.
[Sgd The Hon R J Groom]
Deputy President
CATCHWORDS
Compensation – permanent impairment – Table 9.5 of Guide to Assessment of the Degree of Permanent Impairment – meaning of “difficulty”, “grades”, “steps”, "distances" - video evidence – degree of impairment – decision set aside
Safety Rehabilitation and Compensation Act 1988 ss. 4, 24, 67
Guide to the Assessment of the Degree of Permanent Impairment
Comcare v Fiedler (2001) 34 AAR 237
Re Peters and Australian Postal Commission AAT Decision No 9680 23 August 1994
Re Whelan and Department of Defence (1996) 47 ALD 383 at 389
Re Morley and Comcare (1996) 40 ALD 725 at 731
Re Watkins and Comcare (2003) 69 ALD 498 at 500
Hemley and Military Rehabilitation and Compensation Commission [2006] AATA 128.
Re Holmes and Comcare [2001] AATA 290
Thiele v Commonwealth (1990) 22 FCR 342 at 346
Wilson v Wilsons Tile Works Pty Ltd (1960) 104 CLR 328 at 335
Whitaker v Comcare (1998) 28 AAR 55 at 67
Nguyen and Comcare AATA Decision No 10133 18 April 1995
REASONS FOR DECISION
5 June 2008 The Hon R J Groom (Deputy President) INTRODUCTION
1. The applicant claimed compensation for 20% whole person impairment caused by a fall at work. The respondent accepted the claim and paid compensation. However, after viewing a surveillance video of the applicant walking and obtaining further medical advice, Comcare revoked that decision. It now intends to seek recovery of the lump sum already paid. The applicant maintains that she has suffered a 20% whole person impairment. The issue in this application is the degree of permanent impairment suffered by the applicant.
BACKGROUND
2. On the 4 May 1999 the applicant, who was then aged 51 years, injured her right knee when she fell in the course of her employment with the Health Insurance Commission.
3. A claim for compensation under the Safety Rehabilitation and Compensation Act 1988 (“the Act”) was lodged by the applicant on the 30 July 1999. Liability was subsequently accepted for a tear of the cartilage or meniscus of the right knee. Compensation was paid and the applicant undertook a course of rehabilitation. She then returned to work at the Health Insurance Commission on reduced hours.
4. The applicant had ongoing problems as a result of her injury. She had suffered bleeding into a cyst behind the right knee causing an almost complete posterior tibial nerve lesion and resultant permanent loss of feeling in the right foot. On the 27 June 2002 she lodged a claim under the Act for permanent impairment.
5. On the 9 October 2002 a determination was issued accepting that the applicant had suffered a 20% whole of person impairment. Lump sum compensation was paid to her.
6. The applicant then sought a reconsideration of the determination which had awarded her 20% whole person impairment. She claimed that she had suffered 30 % whole person impairment.
7. On the 17 December 2002 a reconsideration decision was issued affirming the earlier determination. On the 28 January 2003 the applicant applied to this Tribunal for a review of that decision.
8. The applicant’s 2003 application to the Tribunal was set down for hearing in July 2004. In the course of the hearing and after viewing a surveillance video produced on behalf of the respondent the applicant decided not to pursue that application.
9. Comcare gave consideration to the video evidence and obtained further medical advice. It then proceeded with an “own motion” reconsideration and decided on the 19 October 2004 to revoke the earlier determination of the 9 October 2002. It denied liability to pay compensation for permanent impairment. Comcare advised the applicant that “the effect of this decision is that Comcare will now seek recovery of the amount previously paid”.
10. A reconsideration was sought by the applicant of Comcare’s decision of the 19 October 2004. On the 28 April 2005 a review officer of Comcare affirmed the decision.
11. The applicant now applies to this Tribunal for a review of that reconsideration decision of the 28 April 2005.
12. The hearing of the application was held in Hobart. It extended over seven sitting days commencing on the 19 February 2008 and concluding on the 20 March 2008. Mr C Hobbs appeared for the applicant and Mr B Morgan for the respondent. Twelve witnesses gave oral evidence. They included three medical witnesses Mr J Mills (orthopaedic surgeon), Dr T Stewart (consultant occupational physician) and Dr R Paton (anaesthetist). The “T-documents” lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 and numerous other documentary exhibits were tendered and received into evidence.
THE ISSUES
13. It is not in dispute between the parties that the applicant did suffer an injury to her right knee in a fall at work on the 4 May 1999 in the course of her employment with the Health Insurance Commission (see transcript page 81). Nor is there any issue concerning the requirements of Section 24(2) of the Act. It was recognized and accepted that any impairment is permanent. As indicated by Mr Morgan for the respondent, the only issue in this matter is the degree of permanent impairment suffered by the applicant (see transcript page 263).
14. The principal question to be determined by the Tribunal is therefore as follows:
What degree of permanent impairment does the applicant suffer as a result of the fall at work on the 4 May 1999?
15. It is submitted by Mr Hobbs for the applicant that the applicant is 20% permanently impaired. Mr Morgan for the respondent contends that the applicant has no permanent impairment. It follows therefore that the Tribunal must decide whether any permanent impairment exists, and if so, is it 10% or 20% under Table 9.5 of the approved “Guide to the Assessment of the Degree of Permanent Impairment”?
16. For an employee to be entitled to compensation for permanent impairment it must be established that the person has not only suffered a requisite degree of impairment but also that the impairment resulted from the workplace injury. Although counsel did not suggest this was an issue in dispute the Tribunal considers it necessary to address it. It will be discussed later in these Reasons for Decision.
THE LEGISLATION
17. The Act provides that when an injury to an employee results in a permanent impairment Comcare is liable to pay lump sum compensation to the employee in respect of that injury.
18. Impairment is defined in section 4 of the Act as meaning:
“… the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function”
In the same section “permanent” means “likely to continue indefinitely”.
19. Section 24 of the Act relevantly provides as follows:
“(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(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.”
20. As indicated s.24(5) provides that the degree of permanent impairment shall be determined under the provisions of the “approved Guide”. Under s.4 of the Act “approved Guide” means:
“(a) the document, prepared by Comcare in accordance with section 28 under the title “Guide of the Assessment of the Degree of Permanent Impairment”, that has been approved by the Minister and is for the time being in force; and
(b) if an instrument varying the document has been approved by the Minister – that document as so varied”.
21. The approved Guide (‘the Guide”) is prepared by Comcare pursuant to s.28 of the Act which provides as follows:
“(1) Comcare may, from time to time, prepare a written document, to be called the “Guide to the Assessment of the Degree of Permanent Impairment”, setting out:
(a) criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury shall be determined;
(b) criteria by reference to which the degree of non-economic loss suffered by an employee as a result of an injury or impairment shall be determined; and
(c) methods by which the degree of permanent impairment and the degree of non-economic loss, as determined under those criteria, shall be expressed as a percentage.
(2) Comcare may, from time to time, by instrument in writing, vary or revoke the approved Guide.
(3) A Guide prepared under subsection (1), and a variation or revocation under subsection (2) of such a Guide, must be approved by the Minister”.
A claim under s.24 of the Act received before 28 February 2006 is to be determined under the provisions of the First Edition of the Guide (see Introduction to the Second Edition of the Guide Page IV).
22. For this application the relevant Table in the guide is 9.5. It applies to claims for impairment of the lower limb. That table provides as follows:
Table 9.5: Limb Function – Lower Limb
(Percentage Whole Person Impairment)
%
DESCRIPTION OF LEVEL OF IMPAIRMENT
10
Can rise to standing position and walk BUT has difficulty with grades and steps
20
Can rise to standing position and walk but has difficulty with grades, steps and distances
30
Can rise to standing position and walk with difficulty BUT is limited to level surfaces
50
Can rise to standing position and maintain it with difficulty BUT cannot walk
65
Cannot stand or walk
THE LAW
23. In order to decide this application it is necessary to understand the meaning of the words “difficulty”, “grades”, “steps” and “decisions” as they appear in Table 9.5.
24. The term “difficulty” in the Guide was considered by the Full Court of the Federal Court of Australia in Comcare v Fiedler (2001) 34 AAR 237. In that decision the Full Court rejected the view that had been expressed in a number of decisions of the Tribunal that the difficulty concern had to be “very severe” (see Re Peters and Australian Postal Commission AAT decision no 9680 23 August 1994) or a “very significant or substantial impairment” (see Re Holmes and Comcare [2001] AATA 290). The Full Court found that it was sufficient to satisfy the test of “difficulty” if a person, as a result of the injury, found it “troublesome” or “not easy” to do the tasks concerned. It must, however, be something more than a minimal problem in carrying out that task.
25. The words “grades” and “steps” are not defined or otherwise explained in the Guide. Their meaning, however, is plain. In this context the Tribunal considers that the term “grades” indicates an inclined pathway, road, footpath or ramp with a flat surface. “Steps”, in the Tribunal’s view, means a step or series of steps or stairs.
26. On the question of the meaning of “distances” some degree of guidance can be found in past decisions of the Tribunal. It has been suggested in those decisions that “distances” means the distance that can be traversed by a normal healthy person of the same gender and age as the applicant. This approach was adopted in Re Whelan and Department of Defence (1996) 47 ALD 383 at 389, Re Morley and Comcare (1996) 40 ALD 725 at 731; Re Watkins and Comcare (2003) 69 ALD 498 at 500 and Hemley and Military Rehabilitation and Compensation Commission [2006] AATA 128.
That view is supported by the following passage included under the heading “Principles of Assessment” in the Guide:
“… impairment is measured against its effect on personal efficiency in the “activities of daily living” in comparison with a normal healthy person…” (see Comcare v Amorebieta [1996] 22 AAR 539 at 546)
27. In the Tribunal’s opinion the term distances is intended to extend the relevant tasks causing difficulty beyond negotiating grades and steps to difficulties walking distances on flat or relatively flat surfaces.
28. However, another question arises concerning the meaning of distances. Does the term mean difficulty in walking a distance simpliciter. That is, if a person is able to get from point A to point B then the person has not had the necessary difficulty. Or is it that even if the person can walk the distance it is sufficient to show that it was troublesome or not easy for the person to walk that distance. It is the Tribunal’s view that the latter interpretation is the correct one.
29. If the meaning of “distances” is unclear and there are two possible interpretations the word should be given a construction which best advances its essential purpose. In workers’ compensation legislation where two constructions are possible that which is most favourable to the worker should be preferred. (see Thiele v Commonwealth (1990) 22 FCR 342 at 346, Wilson v Wilsons Tile Works Pty Ltd (1960) 104 CLR 328 at 335 per Fullagar J and the Full Court of the Federal Count in Whitaker v Comcare (1998) 28 AAR 55 at 67).The second of the two interpretations mentioned in paragraph 28 above is therefore to be preferred.
30. The terms “grades” and “steps” (for 10% impairment) and “grades”, “steps” and “distances” (for 20% impairment) are conjunctive. The Tribunal must be satisfied that the person concerned has difficulty with all of the tasks specified. (see Nguyen and Comcare AATA 10133 18 April 1995).
31. The test in this application is therefore whether it was ”troublesome” or “not easy” for the applicant to walk up and down grades and steps and also whether it was “troublesome” or “not easy” for her to traverse distances when walking on flat or relatively flat surfaces. The difficulties have to be more than minimal.
THE APPLICANT’S CREDIBILITY
32. Counsel for the respondent challenged the applicant's credibility. However after observing the applicant’s demeanour in the witness box and carefully considering her evidence the Tribunal finds that the applicant’s account of the central issues in this application, namely the effect of her workplace injury on her mobility and the difficulties she had in walking and in negotiating grades and steps to be truthful and reliable. It is, of course, significant that the Tribunal had the opportunity to view direct video evidence of the applicant walking. The video was taken without her knowledge. It is direct, undistorted and cogent evidence of the principal issue for determination in this application, namely whether the applicant has difficulty with the tasks specified in Table 9.5.
TABLE 9.5
33. The Tribunal will now proceed to consider whether the applicant satisfies the criteria in Table 9.5 for 20% whole person impairment. That is the degree of impairment now claimed by the applicant. If the criteria for 20% impairment are satisfied then it will not be necessary for the Tribunal to consider any other degree of impairment.
34. To establish a 20% degree of impairment it is necessary for the applicant to satisfy the Tribunal that she had difficulty with grades, steps and distances. The evidence relating to each of these tasks will now be considered and findings made.
DOES THE APPLICANT HAVE DIFFICULTY WITH “GRADES”?
It is submitted on behalf of the respondent that the applicant has no difficulty with grades. It is argued that the applicant walked up and down the path at the back of the house without difficulty except to bend forward to pick something up. Also that she was able to go down and back up the ramp to the lower level of the Cat and Fiddle Arcade in Hobart. After leaving the Cat and Fiddle Arcade the applicant walked up the grade of Murray Street towards the State Library. It is also suggested she walked up to the K & D store to do some shopping. As well when visiting the K-Mart at New Town the applicant walked up and down the entrance ramp without holding onto a rail and carrying shopping bags. It is submitted that she was able to walk up and down the grades of streets in the Hobart CBD and also negotiated various other grades in and around Hobart.
35. The applicant contends that she has difficulty walking up and down grades. The numbness in her right foot is claimed to be a particular problem. When going up a path she said she feels that she is “… going to fall backwards” (transcript page 52). In going upwards she uses a crutch “… more or less behind me”. When descending she uses a crutch in front of her. “I always feel I’m going to fall” (transcript page 54).
The applicant said she feels that she is going to fall because of the “… numbness in my leg, the instability in my leg, my toes”. (transcript page 55)
36. In addition, the applicant states that she sometimes experiences shooting pains in her right leg. “It would be almost like an electric shock” (transcript page 56). She generally has a “pins and needles” feeling in her right foot which she described as being like “termites in there” (transcript page 55). “It's intense in there all the time” (transcript page 55).
37. The Tribunal accepts as truthful and accurate the above descriptions by the applicant of the problems she experiences with her right leg and foot.
38. Dr T Stewart, a consultant occupational physician, was engaged by the respondent to provide a medico legal opinion on the degree of permanent impairment suffered by the applicant. He initially expressed the view that the applicant had suffered a 20% whole person impairment. However, after viewing the video he changed his opinion and said he considered the applicant had suffered a 10% level of permanent impairment.
39. There was a degree of inconsistency in the opinions offered by Dr Stewart. In his report of the 5 July 2004 he said “… she does not appear to have real difficulty with grades and steps”. During his oral evidence when asked by Mr Hobbs whether he accepted that the applicant had difficulty with grades and steps, Dr Stewart said “correct”. He went on to confirm his view that he considered that the applicant had indeed suffered a 10% level of impairment. That level, of course, requires that the person concerned has difficulty with both grades and steps.
40. Mr J Mills, is an orthopaedic surgeon who has treated the applicant over a long period of time. He initially expressed the view that her degree of permanent impairment was 30%. Again, after viewing the surveillance video Mr Mills also changed his mind. He then expressed the opinion that the appropriate impairment level was 20%. That opinion was first expressed in a report from Mr Mills dated the 2 May 2005. He maintained that view in his oral evidence to the Tribunal.
In his opinion of the 2 May 2005 Mr Mills said as follows:
“…At 13:43 on the 7th June 2004 Mrs Bacic is observed walking down a steep ramp at her home after leaving her car. She does appear to be using her crutch in a weightbearing position at this stage and has difficulty stepping down one step in the mid-point of the path at the point of a turn.
From my assessment of this video, it is clear that Mrs Bacic can rise to a standing position and walk. She does demonstrate difficulty with grades and steps. The video only shows her at most stepping down from the footpath to the road, which is one step. She clearly demonstrates difficulty descending a steep path at the back of her house, however it is not possible from the video to assess any distance that Mrs Bacic is able to walk. I remain of the opinion that her walking distance is limited because of the documented neurological injury to her leg”.
41. The following exchange took place in the course of cross-examination of Mr Mills by Mr Morgan:
“MR MORGAN: Now, there are two aspects of the question of impairment, they being grades and steps. In relation to grades I want to suggest to you that on the video we have not seen evidence of her having difficulty with grades?
MR MILLS: I think she – it’s difficult to be sure from this distance, but I think she’s concentrating on her mobility down the grade, particularly the house in Springfield. So I wouldn’t say she was doing it without difficulty, but I think there is some – a degree of difficulty that she’s experienced on that grade.” (transcript page 218)
42. Dr R Paton is an anaesthetist. He treated the applicant for pain management and inserted a dorsal column stimulator in her abdomen. It did not provide lasting relief for the right foot and was later removed. Dr Paton also prescribed a range of medication for the applicant to relieve her pain.
Dr Paton said in evidence that the applicant’s mobility was significantly reduced by her 1999 injury. He said: “… you have to understand this lady developed a tibial nerve palsy, and that means that all the muscles in the lower part of the leg, the posterior compartment, into her foot no longer function, and this is an extremely serious condition. And I think the fact that she had some knee pain does not relate, it’s not – it’s not a – really a significant factor, I believe, compared with the issue of the pain and loss of function, and loss of feeling that’s the result of a tibial nerve palsy” (transcript page 247).
He added “she cannot walk like you or I, I mean, because she’s got a numb foot, and a very weak foot” (transcript page 249). The Tribunal accepts as correct those opinions expressed by Dr Paton.
43. On this particular issue, namely whether the applicant has difficulty with grades, the medical evidence available to the Tribunal is relatively consistent. Although a contrary opinion on the subject was offered at one point in time by Dr Stewart ultimately both Dr Stewart and Mr Mills acknowledged that the applicant has difficulty with grades.
44. The evidence provided by witnesses of fact, other than the applicant, did not assist the Tribunal in any meaningful way in determining whether or not the applicant had difficulty with grades.
45. The surveillance video, however, was most helpful to the Tribunal. As has been mentioned the applicant did not realise she was being videoed. There is a substantial amount of footage available of the applicant walking up and down and along footpaths and pathways and in shops. It has provided to the Tribunal direct and undistorted information about the very matters it is required to determine.
46. I find the video evidence particularly persuasive. It confirms that the applicant did have difficulty in walking because of her numb right foot. She almost always uses her crutch in her right hand to assist her. Her somewhat tentative and careful manner of walking is evident right from the beginning of the video taken on 2 June 2004 at 2:22 p.m. when she was walking down Liverpool Street. There is further evidence of difficulty on the 4 June 2004 at 9:12 a.m. when the applicant was walking tentatively down a pathway. However the difficulty with grades is most obvious when the applicant walks down the path at Second Avenue, Springfield on 7 June 2004 at 1:58 p.m. She gingerly negotiates the pathway aided by her crutch. It is clearly difficult for her. Similarly, walking back up the path is obviously not at all easy. There is no vision of the applicant walking down and up the ramp at the Cat and Fiddle Arcade. There is some footage of her walking up and down the ramp at K-Mart. The angle of the ramp at the K-Mart is less than for the path at Springfield. Nevertheless some degree of difficulty is evident. The applicant is not walking with a normal gait and she uses her crutch as an aid.
47. It was suggested that the applicant walked to and from the K & D store and Toyworld because credit card records show that she shopped at those places on certain days. The Tribunal is not satisfied on the evidence that the applicant did in fact walk the distance between those stores and her place of work.
48. After considering all of the material before it the Tribunal is satisfied that it is not easy for the applicant to negotiate grades. This is more than a minimal problem. It therefore finds that she has difficulty with grades within the meaning of Table 9.5.
DOES THE APPLICANT HAVE DIFFICULTY WITH “STEPS”?
49. As with grades the question to be answered by the Tribunal is not whether the applicant was able to go and down steps or stairways but whether she had difficulty with that task.
50. As pointed out on behalf of the respondent there is evidence that the applicant was at times able to climb steps and stairs to the consulting rooms of both Dr Stewart and Dr Paton. She also negotiated the stairs to her son’s residence.
51. The Tribunal finds, after observing the applicant when giving evidence and considering the evidence of other witnesses, that the applicant is a determined, resolute character who would not easily be dissuaded from attending a consultation or a meeting even if it meant enduring pain, discomfort or other difficulties. Dr Paton described the applicant as “…a very determined lady …” (transcript page 251).
52. As was mentioned when considering difficulty with grades both Dr Stewart and Mr Mills agreed that the applicant had difficulty with “grades and steps”. Dr Stewart finally expressed the view that the applicant suffered a 10% permanent impairment. This requires difficulty with both grades and steps.
53. The medical evidence about the nature of the applicant’s injury and impairment is relevant to her capacity to negotiate steps. The Tribunal finds that she lacks feeling in her right foot as a result of the tibial nerve lesion.
Mr Mills explained her problems as follows:
“I think she uses her stick because she lacks some of the feeling in her foot. She doesn’t have that feedback that you normally get as your foot touches firm ground. And people who have her neurologic problem in her foot, where you lack position sense, or – and like touch sensation – they liken it to like walking on a rubber mat or cotton wool. You don’t know where your foot is, and you know, it’s a bit like when you’re walking along and miss the step. You don’t expect to sudden drop and you land awkwardly. So each step is a bit like that for them. They’re not exactly sure where the ground is” (transcript page 217).
The Tribunal accepts that opinion as correct.
54. When portions of the video were shown to Mr Mills he said “she’s having difficulty on steps, she’s definitely using her crutches to go down first and take the weight. She’s probably leaving her weight off and protecting her knee I think in most of those” (transcript page 219).
55. There is evidence from two former work colleagues Ms Higgins and Ms Manser about the applicant’s ability to negotiate steps in the office, of walking around the office without using her crutches and of climbing onto a chair to reach up to place items in a cupboard in the tea room. Ms Manser, when cross-examined on the last of those issues, could not recall how many times she had observed the applicant standing on the chair. When asked about details she said: “I don’t know exactly from memory because it’s a long time ago, but I would assume that she was putting food into the cupboard…” (transcript page 368) In her written statement Ms Manser stated “she had a little bit of difficulty doing this”.
Ms Higgins also said that that applicant had stood on a chair to put food products into the cupboard. She said it was done “frequently” and that she had spoken to the applicant on occasions about it. It is interesting that Ms Higgins had not referred to this particular issue in her earlier written statement (T 8). In her evidence another work colleague Ms Morozoft said the suggestion that the applicant stood on a chair to reach the cupboard “was ridiculous”. She said the height of the cupboard was such that it would not be necessary to climb up onto a chair to reach it.
56. The applicant denies standing on a chair to place items into the cupboard. She said that the cupboard was in reach. The applicant did concede that it may have occurred before her accident but “I can’t think of what that would be for”.
57. The Tribunal is not able to conclude that following her accident the applicant stood on a chair to reach the cupboard to place items into it. The evidence shows that there was a history of friction between both Ms Manser and Ms Higgins and the applicant. That animosity and tension may have blurred recollections of what actually happened and when. It is noted that Ms Manser’s written statement included a great deal of information critical of the applicant which clearly was not relevant to the issues in dispute.
58. The Tribunal finds that the applicant was very familiar with the physical arrangements in the office. She did not generally use her crutches to move around the office. On occasions she did use her crutches when going to the toilet. It is satisfied that she used the handrail near the steps and sometimes leant on furniture for support as she moved around the office.
59. The applicant said in evidence that she complained about the steps in Dr Stewart’s consulting rooms. She said she told him “it’s very bad” (transcript page 193). The applicant said she believed Dr Stewart helped her down the stairs on her second visit to his rooms.
The following questions were put to Dr Stewart during his evidence in chief:
“MR MORGAN: Are you able to recall whether she made any complaint to you about the steps?
DR STEWART: She did, she did. Yes, she did.
MR MORGAN: Are you able to recall whether you made any observations of her going up or down the steps or going up McTavish Avenue?
DR STEWART: No, I didn’t – I don’t recall seeing Mrs Bacic coming up the stairs, but on the way out I went down the steps with her to the bottom of the steps and then observed her walking up the incline to the car park from the window. I left her at the bottom of the steps.
MR MORGAN: Right and did you assist her to go down the steps?
DR STEWART: No I didn’t assist her but I went with her to ensure that – I didn’t want her to fall on the steps.” (transcript page 383).
60. The applicant was asked about a trip by plane to Queensland and whether she had any difficulty getting onto the plane. She said “they hoisted me up in that lift thing” (transcript page 131). The Tribunal considers this to be significant evidence. It accepts that the applicant was hoisted up to the aircraft rather than using the normal stairway.
61. After considering all of the material before it the Tribunal is satisfied that it is not at all easy for the applicant to negotiate steps and stairs. Again, this is not a minimal problem. The applicant therefore satisfies the “difficulty with steps” test in Table 9.5.
DOES THE APPLICANT HAVE DIFFICULTY WITH “DISTANCES”?
62. The issue of difficulty with distances is perhaps the most contentious of the issues to be decided in this application.
63. As was submitted by Mr Morgan there is evidence of the applicant walking not insignificant distances along streets in the Hobart CBD and in undertaking shopping activities on the 2, 4 and 7 June 2004. There is evidence that the applicant walked a distance of 500 metres on 2 June 2004.
64. As mentioned in paragraph 31 the issue to be decided is not whether the applicant was able to traverse those distances but whether it was troublesome or not easy for her to do so.
65. A good deal of what has already been discussed about the nature of the applicant’s injury is also relevant to the question of difficulty with distances. The evidence establishes that with a numb right foot walking any distance is not an easy thing for the applicant to do. This was explained by Mr Mills as indicated in paragraph 53 above.
66. Dr Stewart appeared to support the view that if a person is able to walk from A to B then it follows that the person has no difficulty with walking that distance. This is the first of the two alternative interpretations that the Tribunal referred to in paragraph 28. The Tribunal has already indicated that it prefers the second of those alternatives.
67. On page 2 of his report of the 2 May 2005 Mr Mills said “I remain of the opinion that her walking distance is limited because of the documented neurological injury to her leg”. He later expressed a degree of uncertainty about the definition of distances in Table 9.5.
68. That uncertainty as to the meaning of distances continued during Mr Mills’ oral evidence. He said “…No, she can walk the distance, although with a – she does walk with an aid on that time, so she still, she’s using an aid to help her walk the distance so she’s not doing it without difficulty, but she’s walking the distance” (transcript page 213).
69. When asked by Mr Morgan about her ability to walk the 500 metres as shown in the video, Dr Mills said as follows: “…it also depends a little bit on what she wants to do. I mean if she’s desperately wanted a tattslotto or a packet of cigarettes, then I think most smokers, to my knowledge, will make the effort to walk 500 metres. So to cover the definition of that she’s no longer – she is able to walk distance on that one day is somewhat difficult, but on the evidence that I’ve seen on that day, she certainly can walk the minimum of 500 metres as observed here” (transcript page 212)
70. The following exchange took place between Mr Morgan and Dr Paton:
“MR MORGAN “Would you agree that the fact that a patient is suffering from a nerve injury of this nature does not, in itself, limit how far they can walk?
DR PATON: “It absolutely limits how far you can walk, absolutely, I think” (transcript page 248)
71. It is true that the applicant was able to walk a considerable distance on 2 June 2004 when she walked from the Health Insurance Commission offices down Liverpool Street to Murray Street then across Murray Street to the Cat and Fiddle Arcade and down a ramp to the tattslotto store apparently to buy cigarettes. She then walked up the ramp to Murray Street and turned right to go up to Bathurst Street. It is said that the distance walked was 500 metres. The applicant used her crutches as an aid. She did not wear a shoe on her right foot. She walked relatively slowly. Also the applicant appeared rather fatigued when videoed after walking part of the way up Murray Street. To walk that distance in those conditions was obviously not easy for her.
72. Before the fall in 1999 the applicant was a physically active person. She walked frequently, went dancing and had an active social life. Much of that activity has ceased. It is clear that she remains a very determined person. If there is sufficient reason to do so no doubt she will make the effort to walk a distance. But obviously it is not easy to do that. She needs to use her crutch because she has no feeling in her right foot. She suffers pain. She cannot wear a shoe on her right foot. This is itself a limiting factor when walking significant distances. Sometimes her leg gives way and she falls. Her impairment limits her capacity to walk distances. The Tribunal accepts as truthful her statement that as a result of the injury she does not now walk the distances she used to walk. (transcript page 78).
73. The applicant said “I’ve got to keep my mind always, always on the fact that I have to lift my leg up at the knee. If I don’t it scrapes and I stumble and fall” (transcript page 79). Again that account by the applicant is accepted as truthful.
74. The video evidence reveals that after she had been shopping the applicant pauses for quite a long period in her car and smokes a cigarette before driving away. It is consistent with the applicant’s statement that she gets fatigued after walking (transcript page 79).
75. The Tribunal finds that although the applicant can walk distances it is not easy for her. She does not walk as far as she used to walk before her fall at work. The problem she experiences in walking distances are not minimal. They are significant. The applicant therefore has difficulty with distances within the meaning of that term in Table 9.5.
DID THE DIFFICULTIES WITH GRADES, STEPS AND DISTANCES RESULT FROM THE FALL AT WORK IN MAY 1999?
76. For an employee to be entitled to compensation the permanent impairment must result from the workplace injury (see Section 24(1) of the Act).
77. This issue was not a reason for the decision made by the respondent on the 19 October 2004 revoking its earlier determination. Nor was it identified by counsel as an issue in these proceedings. Nevertheless during the hearing questions were asked by both counsel about the applicant’s pre-existing conditions. It is therefore a matter which the Tribunal considers it should address in these Reasons for Decision.
78. There is evidence before the Tribunal indicating that the applicant had problems with a bunion and with her toes on her right foot prior to the fall in 1999. She had some surgery to correct those problems. It was performed by Mr Mills.
79. Mr Mills acknowledged in evidence that some degree of impairment was caused by these pre-existing problems but said that it was temporary in nature. Those problems have largely been corrected by surgery.
80. There is also evidence of wear and tear and degenerative changes to the right knee joint which predated the fall. Mr Mills said these changes were “mild” (transcript page 205). He added that they were only “minimal changes”. Mr Mills said that as a result of the fall in May 1999 these degenerative changes had “become symptomatic and had accelerated” (T 43 page 86). That evidence is accepted as accurate.
81. Dr Paton was asked about the pre-existing knee pain during the course of cross-examination:
“ MR MORGAN “In terms of the question of her mobility post- 1999, if she had been suffering from bilateral anterior knee pain prior to that time, would it be reasonable to attribute her current mobility to a combination of anything that was pre-existing, plus the consequences of this injury?
DR PATON: “I think I can answer that, in that I think you have to understand this lady developed a tibial nerve palsy, and that means that all the muscles in the lower part of her leg, the posterior compartment, into her foot no longer function, and this is an extremely serious condition. And I think the fact that she had some knee pain does not relate, it’s not – it’s not a – really a significant factor, I believe, compared with the issue of the pain and loss of function, and loss of feeling that’s the result of a tibial nerve palsy” (transcript page 247).
82. The Tribunal finds that the principal cause of the applicant’s permanent impairment was the twisting injury she suffered in the fall in 1999 which caused a tear to the meniscus in the knee. Fluid leaked into a cyst and this caused a lesion to the tibial nerve. This has resulted in loss of feeling in the foot. There are also varying types of severe pain in the knee and the foot.
83. The Tribunal is satisfied that a direct result of the fall at work the applicant has had the difficulties with grades, steps and distances that have been previously discussed in these Reasons for Decision. The result of this fall is a 20% impairment. It is permanent. She is therefore entitled to compensation for 20% whole person impairment under Table 9.5 of the Guide.
CONCLUSION
84. The Tribunal therefore finds that as a result of the injury suffered in the fall on the 4 May 1999 in the course of her employment with the Health Insurance Commission the applicant has suffered a 20% whole person permanent impairment in accordance with Table 9.5 of the Guide.
DECISION
85. The decision under review is set aside and the matter remitted to the respondent with the following directions:
(a) The applicant is suffering a permanent impairment as a result of an injury suffered by her on the 4 May 1999 in the course of her employment;
(b) The degree of permanent impairment under Table 9.5 of the Guide to the Assessment of the Degree of Permanent Impairment is 20%.
COSTS
86. This decision is one to which Section 67(9) of the Act applies. Therefore it appears that the applicant is entitled to costs. I will however hear counsel further as to costs if an application is made within fourteen days. If no application is made within that time I will order that the respondent pays the applicant’s costs of these proceedings as agreed or taxed and that order will be incorporated in this decision.
I certify that the 86 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom (Deputy President)
Signed: H Healy (Administrative Assistant)
Date/s of Hearing 19 February 2008 – 22 February 2008
18 March 2008 – 20 March 2008
Date of Decision 5 June 2008
Counsel for the Applicant Mr Craig Hobbs
Solicitor for the Applicant Legal Aid of Tasmania
Counsel for the Respondent Mr Brian Morgan
Solicitor for the Respondent Ms Naomi Richards. Australian Government Solicitor
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