Bale and Comcare - [2002] AATA 650

DECISION AND REASONS FOR DECISION [2002] AATA 650

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2000/927

GENERAL ADMINISTRATIVE DIVISION       )
           Re      MANIS BALE
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr B J McCabe, Member

Date2 August 2002
PlaceBrisbane

Decision The Tribunal affirms the decision under review.

....................(Sgd).....................
Mr B J McCabe
Member
CATCHWORDS
WORKERS COMPENSATION – work-related injury to knee – whether applicant has difficulty with distances – meaning of "difficulty…with distance" - whether whole person permanent impairment of 20% found – whether medical evidence based on subjective or objective material – whether applicant exaggerating injury

Safety, Rehabilitation and Compensation Act 1988

Whittaker v Comcare [1998] FCA 1099
Comcare v Fiedler [2001] FCA 1810
Briginshaw v Briginshaw (1938) 60 CLR 336

REASONS FOR DECISION

2 August 2002 Mr B J McCabe, Member

Introduction

The applicant, Manis Bale, was employed as a cleaner by the Department of Defence. She injured her knee at work on 20 June 1996. Mrs Bale made a claim for compensation in respect of her injured knee on 21 June 1999. The claim was refused because the injury had not stabilised and it was unclear whether the impairment was permanent. She made a fresh claim on 24 January 2000. On 12 May 2000, Comcare determined the applicant was entitled to compensation under ss 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 for a 10% whole person impairment. The applicant seeks a review of that determination. She says she is entitled to compensation for a 20% whole person impairment.
At the hearing, the Tribunal heard evidence from the applicant and from her orthopaedic surgeon, Dr Brazel. The Tribunal also had a statement from the applicant and the documents provided pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. The respondent also called evidence from Dr Adam.
The Facts
Mrs Bale was born on 26 October 1946. She was employed by the Department of Defence as a civilian cleaner. She claims to have suffered a knee injury resulting from a fall at work. The respondent accepted liability for the injury. The only question is whether or not Mrs Bale's condition is such that she is entitled under the relevant portions of the Guide To The Assessment Of The Degree Of Permanent Impairment (the Guide) to compensation on the basis that she suffers from a 10% or 20% whole person impairment.
Mrs Bale gave evidence at the hearing. She is not well educated, and she does not have a strong grasp of English. She had some difficulty understanding the questions that were put to her by counsel, especially during cross-examination. At one point during questioning by Mr O'Donovan for the respondent, for example, she readily agreed that she was exaggerating her claims. It became apparent that she did not understand what "exaggerating" meant. In view of her language difficulty, it was necessary to approach her evidence with some care. Quite apart from that, I have reservations over Mrs Bale's credibility for reasons that I will explain below.
The applicant said in a written statement dated 7 September 2001 that her knee frequently gives way on her without warning. She said she has "great difficulty climbing steps and stairs and I need the rail to support me". She added she has difficulty walking on uneven ground. She also said the pain in her knee prevents her from walking more than a short distance. She said she takes analgesics on a daily basis.
In her oral evidence before the Tribunal, Mrs Bale spoke of the constant pain that she suffered as a result of her knee injury. It was ultimately unclear whether she took pain-killers every day, or most days. A note from her pharmacist was tendered as evidence of her consumption of pain relief medication. She conceded she had not taken any medication on the day of the hearing, but it was difficult to ascertain whether there was any pattern to her consumption of analgesics. I am satisfied that she does take medication on a regular basis, but she conceded she does not take it every day. Mr O'Donovan for the respondent suggested that this was an example of the applicant's tendency to exaggerate.
Mrs Bale said her husband and family had to take care of most of the housework. She made much of her desire to work, and volunteered that her application to Comcare was not about money. She said she could no longer engage in her favoured past-time of gardening (she loved to mow, she said) and had difficulty walking to the mail box at the end of the driveway. Mrs Bale and her family live on acreage outside Brisbane. She said she had such difficulty coping with the uneven ground around the property and the maintenance that it had been decided to place the house on the market.
Mr O'Donovan for the respondent questioned Mrs Bale about the decision to put the house on the market. She acknowledged that it had not yet been done. Mr O'Donovan pointed out in cross-examination that Mrs Bale had previously asserted an intention to put the house on the market some two years ago in a questionnaire designed to assess the extent of her non-economic loss. He suggested this was another example of the applicant's tendency to exaggerate.
The applicant also said she was in such pain that she was unable to engage in any social intercourse. She said she goes to bingo but sits on her own. She also goes shopping at a local shopping centre, but she claims she never talks to anyone. That might be attributable to her poor language skills and other cultural factors, however. She says she cannot play with her grandchildren, and she irritates members of her family because she walks so slowly.
Mrs Bale struck me as an unsatisfactory witness. I suspect she exaggerated her claims. Mr O'Donovan was able to catch her out on several occasions. Even allowing for her poor grasp of English, her demeanour was unimpressive. She used extravagant language and wore a pained expression in the witness box that was wholly unconvincing. I am unable to form reliable conclusions about the extent of her pain and the degree of her impairment from her evidence on its own.
The Medical Evidence
The applicant has been treated over a lengthy period by Dr Brazel. Dr Brazel is an orthopaedic surgeon. He is also a member of the Department of Surgery at the University of Queensland. The Tribunal was provided with Dr Brazel's clinical notes and medical reports. The applicant was also examined by Dr Adam, an occupational physician, who prepared a report for Comcare in July 2001.
Dr Adam observed Mrs Bale carry out a number of tasks, including a walk around the block. He concluded she was exaggerating the extent of her pain. He also concluded she was exaggerating the extent of her impairment. When he had her perform some actions designed to test range of movement, for example, he concluded she was not cooperating. Dr Adam is of the view that Mrs Bale does not suffer from a 20% whole person impairment.
Dr Brazel initially assessed Mrs Bale as suffering from a 10% impairment. But he changed his mind. In his report of 29 May 2000, he said he was then of the view that her degree of impairment was 20% under Table 9.5 of the Guide. He explained his change of view in the second report on the basis that an independent observer would be able to observe her difficulty in walking distances. In a letter to the applicant's solicitors on 21 November 2000, he added that his change of diagnosis was also partly explained by a misapprehension as to the operation or effect of the relevant table in the Guide.
After reading the material and hearing Mrs Bale, I was tempted to form the view that Dr Brazel had been taken in by her exaggeration. Counsel for the respondent pointed out that the medical evidence appeared to rely on Mrs Bale's subjective accounts of her pain and difficulty performing particular tasks. It was implied that Mrs Bale knew what she had to establish in order to make out a claim, and that she had sought to tailor her comments to her treating doctor accordingly. The respondent's case proceeded on the basis that Dr Brazel had been taken in by the applicant while Dr Adam was alive to the true situation.
I had the advantage of hearing Dr Brazel give evidence, albeit over the telephone. He impressed me as a witness. He explained there was some objective evidence to support a claim that Mrs Bale had difficulty in walking distances. Dr Brazel had performed two arthroscopic procedures on Mrs Bale's knee. He candidly admitted that the full extent of damage to the knee was not uncovered during the first operation. Subsequent scans revealed the problem. Counsel for the applicant produced copies of images of Mrs Bale's knee that Dr Brazel said showed the extent of the damage. Dr Brazel performed a second arthroscopic procedure, and completed his initial report assessing her as suffering from a 10% whole person impairment on 14 April 2000.
During the course of subsequent reviews, Dr Brazel concluded the applicant's symptomatology had increased and her knee had deteriorated – although he declined during cross-examination to say that it was a "substantial deterioration". He said her symptomatology was consistent with her claims about difficulty in walking distances. He admits when he completed the initial assessment that he did not ask Mrs Bale about difficulty with walking distances, a key indicator under Table 9.5. Under cross-examination, Dr Brazel conceded that his revised conclusions as to how much difficulty Mrs Bale actually experienced in walking were based on her subjective accounts of pain.
The applicant also tendered a report from a Dr Cross, the applicant's cardiologist. Dr Cross was not called to give evidence, and the respondent objected to the evidence because Dr Cross could not be cross-examined. I agreed to examine the report, although I noted at the time it was difficult to ascribe any particular weight to it without providing the respondent with the opportunity to question Dr Cross and test his evidence. In the event, the report provides little assistance. It indicates that Mrs Bale had some difficulty completing a stress test conducted according to the Bruce Protocol. (Counsel for the applicant provided a general explanation of the Bruce Protocol, as did Dr Adam. I was also provided with material from a website that sought to explain it.) The report ascribes the difficulty in completing the test to fatigue. Mrs Bale said in her evidence that she was unable to persist with the test because of her knee. It is difficult to see how the report or the account of Mrs Bale adds anything to the rest of Mrs Bale's testimony.
In summary, the medical evidence confirms, at best, that Mrs Bale has symptomatology that is consistent with a claim that she has some difficulty with distances. Much of the medical evidence is necessarily based on her subjective account. That is unavoidable, as pain is apparently a subjective experience. But the evidence is inconclusive.
Establishing a 20% Whole Person Impairment under Table 9.5 of the Guide
Table 9.5 of the Guide deals with the function of lower limbs. A person will be found to have a 20% level of impairment under the Table if he or she "[c]an rise to a standing position and walk but has difficulty with grades, steps and distances". A person with a 10% impairment will also have difficulty with grades and steps, but will not have difficulty with distances. Given that Mrs Bale has already been accepted as having difficulty with steps and grades, the real issue is whether she has difficulty with distances.
The expression "difficulty with…distances" is very imprecise. It exemplifies some of the difficulties of interpreting the provisions of the Guide. Those difficulties have been discussed in a number of cases, including Whittaker v Comcare [1998] FCA 1099 at 9 per Drummond, Cooper and Finkelstein JJ. The Full Court suggested (at 14) in Whittaker that ambiguities should be resolved in favour of the worker. In Comcare v Fiedler [2001] FCA 1810, the Full Court confirmed that this was the correct approach when it was dealing with the meaning of the expression "difficulty with digital dexterity" in Table 9.4.
Minor discomfort in performing a task is not enough to amount to a difficulty. Nor would a minor reduction in flexibility or mobility satisfy the standard. Minor irregularities in the applicant's gait may also be disregarded. But one is not required to demonstrate an absolute inability to walk an appropriate distance. Rather, the Tribunal must decide whether it is reasonably satisfied that "a person, as a result of [her] injury, finds it troublesome or not easy to [walk distances]": Fiedler, at 8. The applicant's age and general state of health apart from the injury must be taken into account in making the assessment.
The leading authority on the meaning of the expression "reasonable satisfaction" is the judgment of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336. In that case, his Honour explained (at 361) that the tribunal of fact does not "engage in a mechanical comparison of probabilities independently of any belief in its reality". The mere fact that a particular contention is possible or plausible is not enough. The tribunal must be reasonably satisfied that the contention has been made out. What will be required in order to reasonably satisfy the tribunal will depend in part on the seriousness of the allegation and other factors because "the nature of the issue necessarily affects the process by which reasonable satisfaction is obtained": Briginshaw at 362, 363 per Dixon J.
I am satisfied the applicant suffers some pain and discomfort in walking. But I am troubled by her tendency to exaggerate that became evident during cross-examination. Her evidence is admittedly supported by Dr Brazel's testimony, but Dr Brazel's testimony relies in part on the subjective account of Mrs Bale. Dr Brazel suggested that the applicant's symptomatology was consistent with her having some difficulty in walking, but the extent of any difficulty is unclear. Given the state of the evidence I am not persuaded that Mrs Bale finds it troublesome or not easy to walk at least a reasonable distance – around the block, for example, which was the distance over which she accompanied Dr Adam.
Conclusion
The decision under review is affirmed.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B J McCabe, Member
Signed:         Sarah Oliver
Associate
Date of Hearing  2 May 2002
Date of Decision  2 August 2002
Counsel for the Applicant        Mr A Harding
Solicitor for the Applicant         Gilshenan & Luton
Counsel for the Respondent    Mr D O'Donovan
Solicitor for the Respondent    Phillips Fox