Bell and Military Rehabilitation and Compensation Commission
[2006] AATA 864
•9 October 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 864
ADMINISTRATIVE APPEALS TRIBUNAL )
)
GENERAL ADMINISTRATIVE DIVISION ) No Q2005/406 Re SIDNEY BELL Applicant
And
MILITARY REHABILITATION & COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Member SC Fisher Date9 October 2006
PlaceBrisbane
Decision The Tribunal decides to affirm the decision under review:
.......[Sgd]........
SC Fisher
Member
CATCHWORDS
WORKERS’ COMPENSATION – permanent impairment – knee injury – 10% or 20% whole person impairment – consideration of term ‘difficulty’ – difficulty with distances to warrant higher rating under Table 9.5
Safety, Rehabilitation and Compensation Act 1988
Administrative Appeals Tribunal Act 1975Secretary, Department of Social Security v Murphy (1998) 52 ALD 268; [1998] FCA 809
Ajka Pty Ltd v Australian Fisheries Management Authority (2003) 74 ALD 21; [2003] FCA 248
Bantick and Secretary, Department of Family and Community Services [2003] AATA 472
Bramwell v Repatriation Commission (1998) 158 ALR 623; (1998) 28 AAR 342; (1998) 51 ALD 56
Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598
Chowhan and Secretary, Department Of Family and Community Services [2004] AATA 1236
Collins v Repatriation Commission (1994) 33 ALD 557
Re Morley and Comcare (1996) 40 ALD 725 at 731; (1996) 22 AAR 451
Comcare v Moon [2003] FCA 569; (2003) 75 ALD 160
Jones and Department of Defence (AAT 13357, 8 October 1998)
Watkins and Comcare [2002] AATA 613
Re Nguyen and Comcare Australia (AAT 10133, 18 April 1995)
Whittaker v Comcare (1998) 86 FCR 532; (1998) 28 AAR 55
Saxton and Military Rehabilitation and Compensation Commission [2005] AATA 1059
Comcare v Fiedler (2001) 115 FCR 328
Hemley and Military Rehabilitation and Compensation Commission [2006] AATA 128
Rogers v Whittaker (1992) 175 CLR 479REASONS FOR DECISION
9 October 2006
Mr SC Fisher, Member Introduction and Background
1. Mr Sidney Bell ("Mr Bell" or "the Applicant") was a member of the Australian Regular Army from 18 June 1991 until his medical discharge on 28 October 1998.
2. This appeal involves a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988. On 23 January 1996, the then Military Compensation Scheme accepted liability for injury arising out of the course of Mr Bell's employment by the Army for a complete rupture of the anterior cruciate ligament in the left knee arising out of an incident on 8 June 1995. Later, the Military Compensation & Rehabilitation Service made a determination of a 10% whole person impairment according to Table 9.2 of the Guide to the Assessment of the Degree of Permanent Impairment. Compensation was awarded under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988. On 21 January 2004, the Military Compensation and Rehabilitation Service accepted liability for osteoarthritis and chondomalacia of the left knee. On 10 March 2005, the Military Compensation and Rehabilitation Service declined to make a determination of a 20% whole person impairment under Tables 9.2 and 9.5. On 20 June 2005, in response to a reconsideration request the Military Compensation and Rehabilitation Service affirmed the determination made on 10 March 2005.
Jurisdiction
3. The Tribunal has jurisdiction in this appeal by virtue of Part VI of the Safety, Rehabilitation and Compensation Act 1988 (“the Act” or “SRCA”). References to statutory provisions are to provisions of the Act unless the context indicates otherwise.
The Role of the Tribunal
4. The role of the Tribunal is to review the merits of the decision before it: section 43 of the Administrative Appeals Tribunal Act 1975 and Secretary, Department of Social Security v Murphy (1998) 52 ALD 268; [1998] FCA 809. The Tribunal is guided by the norm that it should reach the correct and preferable decision on the basis of the material before it: Ajka Pty Ltd v Australian Fisheries Management Authority (2003) 74 ALD 21; [2003] FCA 248 at [33]. The Tribunal is required to stand in the shoes of the original decision-maker and consider all evidence anew, bearing in mind statutory provisions and any significant legal precedent: Bantick and Secretary, Department of Family and Community Services [2003] AATA 472 at [23]. The Tribunal proceeds de novo: Bramwell v Repatriation Commission (1998) 158 ALR 623; (1998) 28 AAR 342; (1998) 51 ALD 56 at 60 per Weinberg J. The Tribunal must base its decision upon the material that is logically probative of the existence of facts that emerge from the evidence before it: Collins v Minister for Immigration and Ethnic Affairs(1981) 36 ALR 598 at 601.
5. In Chowhan and Secretary, Department Of Family And Community Services [2004] AATA 1236, Member Christie said the following about the process of Tribunal review, which this Tribunal gratefully adopts:
“[32] The legislation is the only basis for the review of this administrative decision. Administrative decision-makers are not permitted to depart from the law. The Tribunal must make its decision on the merits of the case – but in accordance with the legal requirements imposed by the Act, together with the relevant legal principles that arise from decisions made by our Courts.
[33] Administrative decision-makers are generally required to address the evidence before them and not confine themselves to evidence before a prior decision-maker whose decision is being reviewed unless the relevant legislation requires a decision to be based upon the circumstances at a particular point of time: see Australian Tea Tree Oil Research Institute v Industry Research and Development Board (2002) 124 FCR 316 at 324-326; Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511 at 521; Jebb v Repatriation Commission (1988) 80 ALR 329 at 333). In Jebb, at 333, approved by Stone J in Australian Tea Tree Oil at 325, Davies J described decision-making in the Tribunal as generally a ‘continuum’ in which ‘the tribunal considers the applicant’s entitlement from the date of application, or other proper commencing date, to the date of the tribunal’s decision’.”
The Material Before the Tribunal
6.The following documentary evidence was before the Tribunal:
Exhibit 1 Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (documents T1 – T63).
Exhibit 2Statement of Sidney Bell dated 13 March 2006.
Exhibit 3Statement of Sidney Bell dated 30 September 2005.
Exhibit 4Records produced under summons from Plantability.
Exhibit 5Blackwater Healthcare Centre medical records in relation to the Applicant.
7. The Applicant was represented by Ms K Philipson of Counsel instructed by D’Arcys Solicitors. Exhibits 1 - 3 were lodged on behalf of the Applicant. The Applicant provided a Statement of Facts and Contentions to the Tribunal.
8. The Respondent lodged documents under section 37 of the Administrative Appeals Tribunal Act 1975 in relation to each appeal as described above. These documents were taken into evidence as Exhibit 1. Exhibits 4 and 5 were lodged on behalf of the Respondent.
9. The Respondent was represented by Mr CJ Clark of Counsel, who was instructed by Dibbs Abbott Stillman Solicitors. The Respondent provided a Statement of Facts and Contentions to the Tribunal.
10. The Tribunal considered carefully all of the documentary and oral evidence before it.
Evidence on behalf of the Applicant
11. The Applicant gave evidence in person. Evidence was given on behalf of the Applicant by Dr James Rowe and Dr Bruce Low.
Evidence of Sidney Bell
12. The evidence of the Applicant is summarised in the following account:
A.The Applicant explained that he was participating in a fast roping course in RAINF while he was posted to Hawaii. During the course, he fell approximately 1.8 m to the ground, causing him to feel pain immediately around his left knee. The Applicant was treated at a medical post and his condition resolved temporarily.
B.The Applicant later injured his left knee again while participating in a battalion basketball training exercise held at 2RAR, requiring him to be attended to at the regimental aid post.
C.The Applicant underwent an arthroscopy on his left knee on 4 July 1995, and later a left knee reconstruction of 15 August 1995.
D.The Applicant began experiencing severe pain in his left knee after an Army pack march in early 1998.
E.The Applicant’s left knee deteriorated, and eventually he was downgraded to Medical Class 4 and discharged from the Army.
F.After his medical discharge from the Army the Applicant had obtained work as a shotfirer/blaster from 23 November 1998 to 23 December 2000, from which he resigned because the work was aggravating his left knee.
G.The Applicant described his work history since the Army, including performing general garden maintenance duties.
H.The Applicant said that he had difficulty walking distances, and that his left knee condition meant that he could not walk more than a few hundred metres before needing to rest. The Applicant said that his left knee seems to tire quickly, causing instability and severe pain making it difficult to walk and causing him to need to rest.
I.The Applicant said that he has difficulty with slopes, and that his left knee tires more quickly when walking up slopes. His left leg becomes unstable, and he experiences a crunching, grating sensation in his left knee.
J.The Applicant said that he has difficulty climbing stairs, using handrails to help stabilise his left leg to ensure it does not give way. The Applicant said that when he climbs and descends stairs, he takes the steps one tread at a time rather than in a continuous pattern or gait.
K.The Applicant said in his current job, he uses a push lawnmower to mow an area 50 m by 10 m in size.
L.In cross-examination, the Applicant said that he no longer participated in bushwalking to the extent he did before his knee injury.
M.The Applicant said in cross-examination that in his work as a shotfirer/blaster, he did a fair amount of walking over unsteady and uneven ground. The Applicant admitted to working at times up to 60 -- 90 hours per week in this job and that he developed back pain as a result of lifting 30 kg bags up hills.
N.The Applicant agreed in cross-examination that his lawnmower activities in his work involve approximately walking 1 km and at times 1500 – 2000 m.
O.In cross-examination, the Applicant disagreed with assessments made by some orthopaedic surgeons about the lack of pain he reported on medical examinations.
P.In cross-examination, the Applicant disagreed with findings reported by Dr Ian Macfarlane, Orthopaedic Surgeon that the Applicant went camping, hiking and on occasions pig hunting (the last activity being in a four-wheel-drive vehicle) but he agreed in cross-examination that he did overstate them. The Applicant said that he had overstated the extent of his camping and hiking activities in that medical examination.
Q.The Applicant said that his CV (compiled with the assistance of the CRS) (which was in evidence as part of Exhibit 4) contains some elements of exaggeration but that the shot firing tasks listed were accurate. The Applicant agreed in cross-examination that he had done various farmhand jobs on a relative's farm and on a contract basis for other farmers. In relation to the task of yard building listed in the CV, the Applicant agreed that he had not actually performed yard building and that inclusion of a reference to this activity at that time was a lie (the applicant said that he had done yard building in the past).
R.The Applicant agreed in cross-examination that his CV suggested he had been more active in his work capacity and activities than the impression he gave in his evidence in chief.
S.In cross-examination, the Applicant was not able to explain why Dr Macfarlane and Dr Goode did not record him being in pain when he said he told them he was in pain at the time of the relevant examinations.
Evidence of Dr James Rowe
13. The evidence of Dr James Rowe, Occupational Physician (called by the Applicant) in these proceedings is summarised as follows:
A.The evidence-in-chief of Dr Rowe is in part contained in his report of 30 September 2004 (Exhibit 1, T13).
B.Dr Rowe examined the Applicant on 30 September 2004.
C.Dr Rowe made a diagnosis of a complete rupture of the anterior cruciate ligament and has chondromalacia patella and osteoarthritis in the left knee.
D.Dr Rowe said in his report (page 4) that the Applicant "was taken on a walk and he had difficulty keeping up with me and I am 20 years older than this young man. He had difficulty walking up and down stairs, he took the steps one at a time, led with the right foot, held the handrail and was perceived to have difficulty walking up and down stairs, particularly downstairs. On an incline he walked more slowly, and after walking for 300 – 400 metres he complained of knee pain and increasing knee pain on the left side."
E.Dr Rowe said in his report (page 4) that the Applicant’s condition "has stabilised, recovery is complete but there has been a downhill course since his discharge and the condition of the knee has deteriorated over the last few years as evidenced by the fact that his quadriceps is wasted, he has lost active range of movement in the knee, and he cannot squat or kneel the without great difficulty".
F.Dr Rowe opined in his report (page 4) that under Table 9.5, the Applicant was observed to rise from standing position and walk but had difficulty with grades, steps and distances. The Applicant was seen to have these difficulties, he had lost range of motion in the left knee and as well in under Table 9.5, he would be deemed as having a 20% whole person impairment because of the condition of the knee. Dr Rowe opined that under Table 9.2, the Applicant has lost less than half of the normal range of movement of the knee and would have a 10% whole person impairment.
G.In his examination in chief, Dr Rowe considered that the Applicant was not exaggerating his symptoms.
H.Dr Rowe disagreed with contrary findings about clinical observations and findings made by Doctors South and Goode put to him by Counsel for the Respondent.
Evidence of Dr Bruce Low
14. The evidence of Dr Bruce Low, Orthopaedic Surgeon (called by the Applicant) in this proceeding is summarised as follows:
A. The evidence-in-chief of Dr Low consisted of his report of 4 February 2002 (which formed part of Exhibit 1, T10).
B. Dr Low examined the Applicant on 4 February 2002
C. Dr Low said that under Table 9.2, the Applicant suffered from 10% whole person impairment.
D. Dr Low said that under Table 9.5, the Applicant suffered from 20% whole person impairment.
Evidence on behalf of the Respondent
15. The following persons gave evidence on behalf of the Respondent: Dr Steven Goode and Dr Michael South.
Evidence of Dr Steven Goode
16. Dr Steven Goode, Occupational Physician, gave evidence on behalf of the Respondent. Dr Goode provided a report dated 27 February 2003 which was part of Exhibit 1, T12 in this proceeding. Dr Goode examined the Applicant on 24 February 2003. A summary of the evidence of this witness is as follows:
A.Dr Goode diagnosed chondromalacia and a meniscal injury (with associated degeneration) and fraying of the reconstructed cruciate, which was trimmed.
B.Dr Goode performed functional tests with these results: 1. Stairs: the Applicant was able to walk up and down four steps at the back of the clinic for six repetitions, taking 90 seconds to complete this. The Applicant took his time and it took the stairs one at a time going up, Mr Bell simply appeared to be taking care -- there is no suggestion of "manifest difficulty". Mr Bell had no trouble walking down the stairs. 2. Grades: the Applicant was able to walk up and down the ramp at the front of the clinic for four repetitions, taking 120 seconds. He did not have any manifest difficulty with this task. In fact, the Applicant was able to talk to Dr Goode during this task, and he did not have used the handrail. The Applicant did seem to take his time to do this task. 3. Distances: Mr Bell was able to walk 250 m on the flat accompanied by Dr Goode. Again, the Applicant appeared to take his time with this task, but did not have any manifest difficulty -- the Applicant was not limping or struggling.
C.Dr Goode opined that under Table 9.2, there was 0% permanent impairment, as there was no loss of active range of movement in either knee. Dr Goode opined that under Table 9.5, there was 0% permanent impairment, because there was no manifest difficulty with grades. Dr Goode opined, however, that he supported the 10% already compensated for the left knee as this reflected the fact that a reconstruction (with adequate outcome) was required. Dr Goode said that there was no objective evidence of an additional 10% impairment.
D.Dr Goode opined that the Applicant has a permanent partial incapacity for work, but that he could work full-time for 28 hours or more per week provided the Applicant avoided heavy manual handling, squatting, kneeling, mobilising for longer periods and driving for longer periods.
E.In cross-examination, Dr Goode said that "manifest difficulty" meant (in the absence of any definition provided to him) that there was some objective evidence that the person is having difficulty with the task. Dr Goode said that there was not any manifest difficulty with stairs and distances on the part of the Applicant.
Evidence of Dr Michael South
17. Dr Michael South, Orthopaedic Surgeon, gave evidence on behalf of the Respondent. Dr South provided a report dated 31 January 2005 (T14 in Exhibit 4 in this proceeding). The evidence of Dr South can be summarised in these terms:
A.Dr South said that the Applicant has a permanent impairment. Dr South described the permanent impairment as consisting of left knee arthritis, cruciate ligament damage plus reconstructions, with a whole person percentage of 10% under both Tables 9.2 and 9.5.
B.In terms of testing, Dr South noted that the Applicant did tend to favour his left knee. The Applicant could not perform a full squat, but could perform a half-squat and could take a few steps in a half-squat position. The Applicant could go up and down stairs in a normal sequential way without using the handrail, although he preferred not to do so and said that to do so gave him knee pain. The Applicant could walk up and down inclines. The Applicant could walk 150 – 200 m without any obvious problems. Dr South said that the Applicant did not report any pain to him when walking.
C.Dr South said that Dr Rowe did not describe the quantification of the degree of laxity that the Applicant had in his left knee. Dr South said that his own testing (a Lachman test, anterior draw test and pivot shift test) disclosed a degree of laxity, but not a gross degree of laxity in the left knee.
D.Dr South said that the clinical findings reported by Dr Rowe would not necessarily indicate that the Applicant would have difficulty with grades, steps and distances.
E.In cross-examination, Dr South said that the Applicant was not theatrical or exaggerating any of his symptoms.
F.Dr South said that a walking assessment distance of between 150 – 200 m is sufficient normally to form an assessment of whether or not somebody has difficulty with distances. In cross examination, Dr South said that he could not conclude that the Applicant would have difficulty walking distances greater than 200 m because that is not what he observed (because he didn't test the Applicant over a distance of greater than 150 – 200 m).
G.Dr South did note that the Applicant recorded pain when ascending and descending stairs.
Discussion of Mr Bell's evidence
18. There were aspects of the evidence of Mr Bell that the Tribunal was not able to accept. First, the Tribunal did not accept Mr Bell's explanation why some doctors did not mention Mr Bell’s pain in their reports when he said he mentioned pain to them. The Tribunal considers it implausible that a medical practitioner, performing a medico-legal physical examination designed to elicit clinical findings of medical conditions, would not report pain if that was what was reported to that medical practitioner. Secondly, the Tribunal noted that the Applicant conceded that he had overstated the extent of his work activities and recreational activities to various medical practitioners and in his CV (which was part of Exhibit 5). Thirdly, when the Applicant described having difficulty with steps, this was not supported by all of the medical evidence before the Tribunal (which is discussed below).
19. The Applicant did not come across to the Tribunal as an impressive witness. Even making due allowance for the impact on the Applicant of the formality and unfamiliar procedures of a hearing room, his demeanour and answers to some of the questions posed in cross-examination such as (but not confined to) explanations for his activities and the non-reporting of pain to some medical practitioners, leads the Tribunal to discount his self-report in terms of providing his medical history to some of the examining medico-legal specialists and also to discount the weight of his evidence to the Tribunal.
Discussion of the Medical Evidence
20. The evidence of Dr Bruce Low, Orthopaedic Surgeon, to the Tribunal, was very brief, much less than well-reasoned, and uninformative. Consequently it was of very little assistance to the Tribunal.
21. Dr Rowe’s walking test of the Applicant was more extensive than that conducted by Dr South.
22. Dr Rowe said that the Applicant had difficulty walking up and down stairs and with distances.
23. Dr Rowe adhered firmly to his evidence in chief in the shape of his medical report and disagreed with contrary clinical findings and medical conclusions made by other medical specialists that were put to him in cross-examination.
24. Dr Goode reported that the Applicant did not display any manifest difficulty with stairs and distances.
25. Dr South said that the Applicant did not have any difficulty walking between 150 – 200 m.
Issue
26. There is one key issue for determination. This is whether the Applicant has a whole person impairment of 20% under Table 9.5 (Limb Function – Lower Limb). The Respondent has already accepted a 10% whole person impairment under Table 9.5.
27. The Respondent conceded by its Counsel’s closing address that the Applicant had a 10% disability under Table 9.5.
Applicant’s Submissions
28. Counsel for the Applicant made the following submissions:
A.The Applicant contended that he had difficulty with grades and steps and distances within the 20% level of Table 9.5.
B.The Applicant cited Collins v Repatriation Commission (1994) 33 ALD 557 at 566 – 567 where the Federal Court said that the task of the decision-maker is to apply the facts of the particular case to the rules so expressed in an instrument such as the Guide to the Assessment of the Degree of Permanent Impairment (2nd ed, 2005).
C.Citing Re Morley and Comcare (1996) 40 ALD 725 at 731; (1996) 22 AAR 451, the Applicant argued that he had difficulty with distances, and that this must be measured against what a normal healthy person could walk.
D.The case of Comcare v Moon [2003] FCA 569; (2003) 75 ALD 160 was relied on by the Applicant to support the contention that pain can produce a difficulty with distances, with the Applicant arguing that on the evidence before the Tribunal he did experience pain in walking distances:
“[47] Once the difficulty is found to exist, that the activity is avoided to avoid the experiencing of pain does not make the difficulty any less. In my view, it is a question of fact in each case as to whether pain experienced in activity presents a ‘difficulty’ with that activity, or whether it is simply a consideration going to ‘lifestyle effects’. … In my judgment, that finding was amply available to it. The term ‘difficulty’ in, e.g. Table 9.5, is not a term of art, but carries its ordinary meaning: Comcare v Fiedler [2001] FCA 1810 at [22]; Whittaker v Comcare (1998) 28 AAR 55 at 61.
E.Citing Jones and Department of Defence [1998] AATA 789 at [38] "The ordinary meaning of the word “difficulty” when used as an adverb is that of “not easily”, “hard to do” or “troublesome” (Concise Oxford Dictionary)", and “The Tribunal decided the correct approach in the Applicant’s case was to interpret “difficulty” according to its ordinary meaning discussed above. The Tribunal notes this is in line with the approach adopted in Re Mooney and Australian Postal Corporation (AAT 9969, 27 January 1995) where the Tribunal held (at para 34) that: “Experiencing pain amounts to ‘difficulty’ in that it makes the function of walking harder to perform”(at [40]), the Applicant argued that he did have difficulty within the 20% whole person impairment level of Table 9.5. The Applicant pointed to the evidence of Dr Rowe and Dr Low in that regard as supporting that contention.
F.The Applicant argued that in terms of the medical evidence before the Tribunal it was only Dr Goode who opined that the Applicant does not have any impairment at all. The medical specialists called by the Respondent were noted to have expressed an opinion that the Applicant does have at least a 10% impairment within Table 9.5.
G.The Applicant pointed to his evidence that he has difficulty in walking distances, that his knee got tired, weak and sore and that he persevered through performing work tasks because he wanted to complete those tasks and took part in pain management activities (analgesics, hot showers and rest).
H.The Applicant argued that embellishments about his work history contained in his CV were no more than the usual embellishments jobseekers make in their CVs in order to obtain favour with potential employers.
Respondent’s Submissions
29.The Respondent made the following contentions in this appeal:
A. The Tribunal should prefer the evidence of Dr Goode and Dr South over the evidence called by the Applicant because it was more objective and more thorough.
B. Dr Goode and Dr South each reported only one instance of pain in respect of one particular factor.
C. The Tribunal should take into account the self-report of the Applicant in his evidence in chief that he could only walk 100 m and juxtapose that with evidence in cross-examination that he could mow lawns of between 1 – 2 km total travelling distance. The Respondent argued that the credibility of the Applicant on his self of report of his capacity to walk distances was weakened by clinical observations and clinical findings.
D. In view of the conflicting medical evidence, the self-report of the Applicant and his overall credibility (and lack of it on key issues such as his CV and the history given to examining medical practitioners) were important matters for the Tribunal to take into account.
E. The self-report of the Applicant and his overall credibility (and lack of it on key issues such as his CV and the history given to examining medical practitioners) should lead the Tribunal to discount his evidence about the extent to which he had difficulty with distances.
F. Watkins and Comcare [2002] AATA 613 was cited in support of the proper meaning of "difficulty".
G. That the reviewable decision dated 20 June 2005 should be affirmed.
30. In his closing address, counsel for the Respondent pointed to the divergences between the medical histories available to each of the medical specialists who gave evidence on behalf of the Respondent as opposed to the Applicant. Counsel stressed that the contemporaneous nature of the reports made by the Applicant to his employer should be given more weight than later reconstructions or versions of the Applicant concerning those same events.
Findings of Fact
31. Based on the material before it, the Tribunal makes the following findings of fact:
A. Mr Bell (the Applicant) has sustained a complete rupture of the anterior cruciate ligament and has chondromalacia patella and osteoarthritis in the left knee.
B. The Applicant can rise to a standing position and walk.
C. The Applicant has difficulty with grades and steps.
D. The Applicant is able to walk a distance of between 1 – 2 km pushing the lawnmower in the course of his duties as a gardener/ horticulturalist, with this activity causing the Applicant some pain.
The Legislation
32.The relevant provisions of the Act are as follows
"4 Interpretation
(1) In this Act, unless the contrary intention appears:
…
"impairment" means 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.
"injury" means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
…
…
(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
…"
‘permanent’ means likely to continue indefinitely.”
"14 Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
"19 Compensation for injuries resulting in incapacity
(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
…"
33. Section 24 of the Act is activated when an injury to an employee results in permanent impairment. Section 24 provides as follows:
“24 Compensation for injuries resulting in permanent impairment
(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) ….
(7) Subject to section 25, if:
(a)the employee has a permanent impairment other than a hearing loss; and
(b)Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.”
Tribunal’s Reasons
34. This matter involves the issue whether the Applicant has a whole person impairment of 20% under Table 9.5 of the Guide to the Assessment of the Degree of Permanent Impairment (2nd ed, 2005) (which has been approved under section 28 of the Act). If not, what degree of percentage impairment does the Applicant have?
35. It is not in dispute between the parties, and the Tribunal both accepts and finds, that the Applicant has a permanent impairment (that is, an impairment that is likely to continue indefinitely) within the meaning and operation of section 24(2) of the Act. This permanent impairment consists of a complete rupture of the anterior cruciate ligament and chondomalacia patella and osteoarthritis in the left knee.
36. In terms of the forensic machinations of this case, there were two principal enquiries. First, does the evidence support a finding or assessment that the Applicant has a "difficulty" in the relevant sense? Secondly, does the difficulty relate to not only grades and steps but also to distances?
37. The meaning of "difficulty" in Table 9.5 has itself caused difficulty and this proved to be the case in the hearing of this appeal. Concerning this matter, Member Kenny of this Tribunal in Watkins and Comcare [2002] AATA 613 conducted the following comprehensive review which justifies repetition:
“89. To meet the threshold of 10% under Table 9.5 of the Guide, the Applicant must be able to rise to a standing position and walk but have difficulty with grades and steps. For the threshold of 20% under that Table, he must be able to rise to a standing position and walk but have difficulty with grades and steps and distances. Clearly, he can rise to stand and can walk; but, does he have "difficulty" with grades and steps or with distances? The term "difficulty" was considered by the Full Court of the Federal Court in Comcare v Fiedler [2001] FCA 1810. There, the Court considered the phrase "difficulty with digital dexterity" as it is used in Table 9.4 of the Guide. The Court rejected the view expressed in earlier Tribunal cases that such difficulty would only arise where that difficulty is "very severe" (see Re Peters and Australian Postal Commission (AAT 9680, 23 August 1994)) or "very significant or substantial" (see Re Holmes and Comcare [2001] AATA 290). The Court said:
‘22 … The word 'difficulty', like most ordinary English words, has no fixed meaning but is….. a word capable of covering a broad spectrum of restriction and disability in the context of a phrase such as 'difficulty with digital dexterity' in Table 9.4. According to the Macquarie Dictionary, 3rd ed, 'difficulty' connotes a range of conditions from being 'not easy', to being 'hard to do', to 'requiring much effort'. According to the Oxford English Dictionary, 2nd ed, it connotes notions of not being easy, of requiring effort or labour, of being troublesome or hard to do, perform or carry out. An injury that leaves a person in the position of requiring much effort to perform tasks calling for digital dexterity involves a markedly more serious impairment than does an injury which makes it not easy or troublesome for a person to perform such tasks.
23. Something more than minimal problems with digital dexterity is required. But if a person, as a result of his injury, finds it troublesome or not easy to do tasks requiring digital dexterity, that will, adopting the approach to interpretation required by Whittaker v Comcare (1998) 86 FCR 532 at 544 - 545, justify a 10% impairment assessment under paragraph 1 of Table 9.4.
24. The Tribunal, having correctly rejected the interpretation placed on the phrase in Table 9.4 in Holmes and Peters, appears to have applied an interpretation to this effect to the facts of the case as found by it then it concluded that the Respondent 'clearly has difficulty with digital dexterity in both hands and, indeed, substantial difficulty with digital dexterity with his right hand'. There is no reason to think the Tribunal considered that any difficulty with digital dexterity, no matter how slight, was sufficient to come within par 1 of Table 9.4’."
[Emphasis added]
38. The apogee of Member Kenny's reasoning concerning difficulty is expressed in para [90] where the learned Member said:
“…[An] Applicant will have difficulty if he finds it troublesome or not easy to negotiate grades, steps and/or distances. The limitation need not be significant or substantial but it must be more than slight or minimal.”
39. This Tribunal agrees with that exegesis for the most part except that portion which deals with "grades, steps and/or distances" (emphasis added). Jones and Department of Defence [1998] AATA 789 at [38] reinforces the proposition that a 20% whole person impairment assessment under Table 9.5 requires difficulty with grades and steps and distances (emphasis in original). The Tribunal in that decision noted Re Nguyen and Comcare Australia (AAT 10133, 18 April 1995) where the Tribunal noted that the elements or integers identified in Table 9.5 in each impairment percentage description, for example, “grades, steps and distances”, must be read conjunctively.
40. Whittaker v Comcare (1998) 86 FCR 532; (1998) 28 AAR 55 (a decision of the Full Court of the Federal Court) reinforces the understanding of difficulty under Table 9.5 that it means if a person found it troublesome or not easy to do tasks, a difficulty exists.
41. Saxton and Military Rehabilitation and Compensation Commission [2005] AATA 1059 adopted the reasoning of the Full Court of the Federal Court in Comcare v Fiedler (2001) 115 FCR 328 in reviewing another decision under Table 9.5 on difficulty. The Tribunal said:
“[27] A similar approach to that in Fiedler (supra) was followed in the Tribunal case of Carman and Comcare [2002] AATA 946 in relation to a case for assessment under Table 9.5. Member Kenny noted the Applicant would have difficulty if he found it troublesome or not easy to negotiate grades, steps and/or distances. As well, the limitation need not be significant or substantial but it must be more than slight or minimal. The Tribunal accepted the submission that pain may be taken into account as the source of difficulty in performing an activity and referred to other Tribunal cases where this had been considered. We agree that, while pain may be taken into account as a source of difficulty in performing an activity, that is not to say that the mere presence of pain, without more, means that difficulty is experienced.”
42. Some forensic debate in this case was concerned with the relationship between pain and difficulty. In Watkins and Comcare [2002] AATA 613, the Tribunal said:
“[92] While pain and weakness may each be taken into account as a source of difficulty in performing an activity, that is not to say that the mere presence of pain or of weakness, without more, means that there is difficulty experienced. The Tribunal notes the reference in the relevant Principles of Assessment to objective criteria ... and is satisfied that, before there can be a finding that there is difficulty in performing a task because of pain, weakness or some other factor, there must be some objective manifestation of that pain or weakness which reveals the difficulty. To find otherwise would be to equate pain or weakness with difficulty and to allocate impairment ratings for those matters which more properly fall for consideration as lifestyle effects for assessment under non-economic loss.”
43. The Tribunal considered that it was important not to treat "difficulty" within Table 9.5 as some kind of element standing alone. Instead, difficulty is connected with a descriptor of a level of impairment, which for the 20% level of impairment is "Can rise to a standing position and walk BUT has difficulty with grades, steps and distances." In other words, the referent for difficulty is the capacity to travel or engage with walking on surfaces involving grades, steps and distances. In this case, the issue concerned whether or not the Applicant was able to traverse "distances". In Hemley and Military Rehabilitation and Compensation Commission [2006] AATA 128 three members of this Tribunal (two of whom are qualified medical practitioners and one of those medical practitioners also having academic legal qualifications) said:
“[20] The extent of distances to be considered when applying Table 9.5 of the Guide are those that are expected to be transversed by a normal healthy person of the same age as the applicant. That was the approach in Re Whelan and Department of Defence (1996) 47 ALD 383 at 399 and Re Morley and Comcare (1996) 40 ALD 725 at 731.”
44. Dr Rowe (called by the Applicant) said that at his age, the Applicant should be able to walk several kilometres and was surprised that, on his evidence based on his clinical observations and findings, the Applicant could not keep up with him on a walk of approximately 400 m. This evidence should be juxtaposed with admissions made by the Applicant that he was able to mow lawns travelling a distance of between 1 – 2 km.
45. Medical evidence before this Tribunal in and of itself is not determinative of the ultimate issue for resolution, particularly when (as happens frequently) the medical evidence is fragmented along fault lines corresponding to the adversarial positions of the parties (compare Rogers v Whittaker (1992) 175 CLR 479).
46. In this case, the medical evidence was polarised, particularly in terms of the medical opinions expressed in terms of the Table 9.5 20% whole person permanent impairment standard. This makes it especially important for the Tribunal to consider the totality of the evidence, not to simply consider the medical evidence alone or in isolation.
47. The Tribunal considered carefully all of the medical evidence before it and also the evidence of the Applicant. Aspects of the credibility of the evidence of the Applicant have been noted above in these Reasons for Decision. In particular, the Tribunal notes that the Applicant gave evidence that he was able to push a lawnmower in the course of his duties as a gardener/horticulturalist a distance of a minimum of 1 km (and up to 2 km). Other evidence of the Applicant was that his left knee would tire very quickly and become unstable soon after beginning walking. The evidence of the Applicant was not entirely consistent on the extent of his left knee instability and the effect it has on his functional capacities. The Tribunal is of the opinion that the total state of the evidence before it enables the Tribunal to reach the conclusion that the Applicant has difficulty with stairs and with grades but not with distances.
Tribunal’s Conclusion
48. Based upon the material before it, and for these Reasons, the Tribunal concludes that the correct decision is that the decision of the Respondent should be affirmed.
Decision
49.The Tribunal affirms the decision under review.
I certify that the 49 preceding paragraphs are a true copy of the decision and reasons for the decision of Member SC Fisher
Signed:...Michelle Brazier
Legal Research OfficerDates of Hearing 28 and 29 March 2006
Date of Decision 9 October 2006
Counsel for the Applicant Ms K Philipson
Solicitor for the Applicant D’Arcys Solicitors
Counsel for the Respondent Mr CJ Clark
Solicitor for the Respondent Dibbs Abbott Stillman
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