BENJAMIN BLEWITT and MILITARY REHABILITATION AND COMPENSATION COMMISSION

[2009] AATA 487

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 487

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/5281  

VETERANS’ APPEALS DIVISION		)
Re		BENJAMIN BLEWITT

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe and
Dr G J Maynard, Brigadier (Rtd), Member

Date30 June 2009

PlaceBrisbane

Decision The Tribunal varies the reviewable decision to provide that allocated 10 impairment points under Table 3.2.2 and five impairment points under Table 3.4.1. His entitlement to compensation should be calculated on that basis.

....................[Sgd].....................

Senior Member

CATCHWORDS

COMPENSATION – Injury – Accepted right knee condition – Whether applicant entitled to compensation for permanent impairment – Whether applicant suffers at least 10 impairment points – Applicant suffers 10 points – Decision varied

Military Rehabilitation and Compensation Act 2004 (Cth) ss 23, 68, 69

REASONS FOR DECISION

30 June 2009 Senior Member Bernard J McCabe and
Dr G J Maynard, Brigadier (Rtd), Member          

1.      

Mr Benjamin Blewitt, the applicant, injured his right knee while playing sport at work in 2005. The Military Rehabilitation and Compensation Commission

(“the MRCC”), the respondent in these proceedings, accepts that it is liable for the injury pursuant to s 23 of the Military Rehabilitation and Compensation Act 2004 (“the Act”). The real question is whether the applicant is entitled to be paid lump sum compensation for permanent impairment pursuant to s 68 of the Act. That question requires us to be satisfied that his condition attracts at least 10 impairment points under the Guide to Determining Impairment and Compensation (“the Guide”). If less than 10 impairment points are awarded, s 69 of the Act says the applicant is not entitled to compensation under s 68.

2.      

The reviewable decision is dated 8 October 2007. That decision revoked the original decision-maker’s determination that disallowed lump sum compensation for permanent impairment. But the reviewable decision also concluded it was inappropriate to award a lump sum in circumstances where it is unclear whether

Mr Blewitt experiences at least the requisite degree of impairment. Mr Blewitt has asked the Tribunal to reconsider that decision. The parties agreed we have jurisdiction to make a decision as to the degree of permanent impairment. We accept that is so and we have proceeded on that basis.

3.      We are satisfied the applicant has established that at least 10 impairment points ought to be awarded in respect of his right knee condition. We explain our reasons below.

Background to the proceedings

4.      The applicant originally made two claims: one in respect of his knee; and one in respect of his back. The applicant said he sustained a back injury while running in muddy conditions at work.

5.      

Whatever the applicant said about the origins of his back complaint, he now accepts that he experienced problems with his back before the accident at work in 2005. We were provided with a report from Dr Bruce McPhee who examined

Mr Blewitt in 1999. Dr McPhee noted the applicant suffered from spondylolisthesis. The report (Exhibit 6) also noted the applicant had earlier applied to join the

Air Force, but his application was rejected because of back condition.

6.      

Mr Blewitt had appealed the decision in respect of his back condition to the Tribunal in separate proceedings. Those proceedings were discontinued. The applicant focused his attention on the current proceedings in connection with his knee. The MRCC criticised this behaviour. Mr Dube, for the MRCC, surmised that

Mr Blewitt withdrew the proceedings because he was worried about action being taken against him for failing to declare his original back condition at the time he joined the Army and made his claim for compensation. Mr Blewitt, for his part, said he did not know he had a back condition when he applied to join the Air Force as a young man because he had never been told that in so many words by a doctor. The doctors, he explained, communicated with his parents.

7.      We are not convinced by the applicant’s explanation for his failure to disclose the back condition when he applied to join the Army and subsequently sought compensation. It seems unlikely that he was unaware of the back problem. It was his back, after all. We also note the applicant’s statements in these proceedings appear to “play up” the contribution of his knee condition to his current problems. His back condition is hardly mentioned, yet an earlier statement dated 11 June 2007 prepared in connection with the back proceedings spoke of the serious difficulties he experienced as a result of his back injury. We think the applicant tended to shape his evidence to help him achieve the outcome he seeks.

8.      While we are not persuaded the applicant lied in connection with these proceedings, his failure to disclose the information about a prior back condition and the other inconsistencies in his other evidence do not reflect well on his credibility. Credibility is important in a case like this: it is essential that the medical experts are provided with an accurate history if their evidence is to be of value. Suffice to say that we have been cautious in our approach to the applicant’s claims that all (or substantially all) of his current impairment is attributable to his right knee condition.

The medical evidence

9.      All of the medical evidence was unsatisfactory in one important respect: none of the doctors who provided expert opinions conducted extensive objective tests that would enable them to verify the applicant’s claims about the extent of his impairment. We note Dr McPhee’s report of 30 August 2007 – which was filed in the earlier proceedings – questions whether restrictions in movement that were reported by the applicant were genuinely attributable to a back condition. Dr McPhee suggested he would expect to see a neurological deficit in the lower limbs if the applicant had a genuine back problem. But he was not asked to report on the applicant’s knee. It follows that Dr McPhee’s evidence is not particularly helpful.

10.     

Dr Max Wearne’s report of 22 September 2005 addressed both the back and knee conditions. He did not allocate an impairment rating in respect of the knee under Table 3.4.1 but suggested an impairment rating of five under Table 3.2.2.

Dr Wearne’s report does not detail the extent of the testing he undertook. It is not clear whether he observed the applicant walking over distances or on uneven grounds or up and down steps.

11.     Dr David Morgan’s evidence was the most helpful and persuasive. His opinion was recent and carefully recorded. He did conduct some objective tests: he observed the applicant walking over a 20 metre course, and he noted the applicant experienced considerable difficulty ascending and descending stairs. Perhaps more importantly, Dr Morgan found wasting of one component of the quad muscles on the applicant’s right leg and there was a positive sign for chondromalacia patellae which can be a consequence of a knee injury.

12.     The applicant did not at first provide Dr Morgan with an accurate history which included information about his back condition. But Dr Morgan did not alter his opinion of the condition of the knee and the applicant’s resultant disability once he learned the truth. He withstood careful questioning during cross-examination. When asked why he presented such a grim prognosis for the knee (he spoke of a future knee joint replacement), he gave three solid reasons that were based on his knowledge and epidemiological data. The reasons were onset of severe symptoms at a young age, loss of chondral tissue and narrowing of the joint space at a young age and loss of significant range of movement at this stage. We also noted Dr Morgan reported night pain attributable to the knee pathology.

13.     Dr Morgan concluded the applicant should be assessed as having a 10 point impairment under Table 3.2.2 as a result of the knee condition. He also assessed the applicant as suffering from an impairment rating of five as a result of the knee condition under Table 3.4.1 in part because of the evidence about night pain.

14.     

Dr David Walters was called by the respondent. His evidence was not as clear as that of Dr Morgan. But while he did not assign an impairment rating under

Table 3.2.2, he did note the applicant reported difficulties with walking. He also acknowledged that evidence of resting pain in the joint might justify an impairment rating of five points under Table 3.4.1. 

15.The respondent invited the Tribunal to:

·reject the applicant’s evidence about the difficulties he experienced walking (relevant to assessment under Table 3.2.2) given the question marks over his credibility as an historian; and

·

infer that the applicant’s lower back condition was at least partly responsible for any impairment that might be assessed under

Table 3.4.1.

While we have already noted our misgivings in relation to the applicant’s credit, we are persuaded we should prefer and accept the evidence of Dr Morgan given his careful observations of the applicant and the results of the (admittedly limited) objective tests.

Conclusion

16.     We understand why the respondent is sceptical of the applicant’s claim. But we are ultimately persuaded by the evidence of Dr Morgan. In those circumstances, we shall vary the reviewable decision by determining the applicant should be allocated 10 impairment points under Table 3.2.2 and five impairment points under Table 3.4.1. His entitlement to compensation should be calculated on that basis. The Tribunal orders the respondent to pay the applicant’s costs, to be taxed if not agreed.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe and Dr G J Maynard, Brigadier (Rtd), Member.

Signed: ........................[Sgd]...................................................
  Michael Buckingham, Associate

Dates of Hearing  6-7 April 2009
Date of Decision  30 June 2009
Counsel for the applicant          Ms S Scott-Mackenzie
Solicitor for the applicant          Slater & Gordon Lawyers
Solicitor for the respondent      Sparke Helmore Lawyers