Bishop and Comcare - [2002] AATA 541

DECISION AND REASONS FOR DECISION [2002] AATA 541

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2000/438

GENERAL ADMINISTRATIVE DIVISION          )
           Re      TRICIA ANN BISHOP
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr K L Beddoe, Senior Member Ms J Cowdroy, Member

Date4 July 2002
PlaceBrisbane

Decision      The Tribunal affirms the decision under review.
  (Sgd) K L Beddoe
  Senior Member

Decision No: 541/2002
CATCHWORDS
COMPENSATION – permanent impairment – whether impairment is permanent -whether injury is compensible
Safety Rehabilitation & Compensation Act 1988 s 4, 24, 27

REASONS FOR DECISION

4 July 2002 Mr K L Beddoe, Senior Member Ms J Cowdroy, Member

The respondent determined that the applicant was not entitled to payment for permanent impairment of her legs (T22). That determination was affirmed on reconsideration (T32). The applicant sought review in this Tribunal (T2).
Section 24 of the Safety Rehabilitation and Compensation Act 1988 ("the Act") relevantly provides that 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.
"Injury" is defined in section 4(1) of the Act as follows:
"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;"

"Impairment" is also defined in section 4(1) to mean 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. "Permanent" is defined to mean "likely to continue indefinitely".
Section 24(2) of the Act provides that for the purpose of determining whether an impairment is permanent, regard is to be had 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 condition; and
(d)      any other relevant matters.
The degree of permanent impairment is to be determined under the provisions of the approved Comcare guide (s 24(5)). The degree of permanent impairment is to be expressed as a percentage (s 24(6)) and in the circumstances of this case if the degree of permanent impairment is less than 10% an amount of compensation is not payable (s 24(7)).
Principles of Assessment are set out in the Comcare Guide. Those principles include the following which are the first two paragraphs on page 3 of the Guide.
"Impairment means 'the loss, loss of use, damage or malfunction, or any part of the body, bodily system or function or part of such system or function'. It relates to the health status of an individual and includes anatomical loss, anatomical abnormality, physiological abnormality and psychological abnormality. Throughout this guide emphasis is given to loss of function as a basis of assessment of impairment and as far as possible objective criteria have been used.
Impairment is measured against its effect on personal efficiency in the 'activities of daily living' in comparison with a normal healthy person. The measure of 'activities of daily living' is a measure of primary biological and psychosocial function such as standing, moving, feeding and self care."

Section 27 of the Act provides for payment for compensation for non-economic loss. It is dependant for its operation on a finding that compensation is payable under section 24.
At the hearing Mr Harding appeared for the applicant and Mr Dickson appeared for the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents and further documents were tendered and marked as exhibits.
Oral evidence was given by the applicant, Jacel Bertoldi, occupational therapist; Dr Myers consultant physician and Dr Martin, orthopaedic surgeon. At the conclusion of the hearing of evidence the parties were directed to make their submissions in writing because of the hour.
We make the following findings of fact. At the date of hearing the applicant was 34 years of age and serving in the Australian Army and with the rank of corporal. The applicant enlisted in the Army in 1990 and thereafter pursued various active sporting activities including regular distance running and team sports.
She became aware of problems with her legs in 1994. Symptoms were calf pain together with tingling in the lower legs and feet. There was also "burning in my feet", aching pain in the foot arches and some stiffening in the ankles. In 1995 an Army Medical Board diagnosed the applicant with post compartment syndrome. Treatment followed thereafter and the applicant was restricted as to physical activities.
Dr Sharwood, orthopaedic surgeon, performed an operation to release compartments of the legs in May 1997 and the applicant applied for compensation at that time. A delegate of the respondent accepted liability for bilateral compartment syndrome by letter dated 20 June 1997 (T15).
Because of her physical condition the applicant was posted to less demanding clerical work and taken off field duties. She resumed full duties in December 2000 and was posted to go to East Timor immediately following the hearing. She was however still able to complete the bi-annual 2.4 km run by a combination of running and walking. She is also able to participate in other forms of physical activities in the course of her Army duties. She sometimes uses paracetamol on those occasions particularly before and after the 2.4 km run. She also participates in PT four times per week albeit at a slower pace and sometimes being unable to complete the session.
The applicant claims she experiences pain from many physical activities including climbing stairs, pushing heavy shopping trolleys and mowing grass. She also says that she no longer takes prescribed medication, because of adverse side effects, preferring analgesics and stretching exercises, depending on the activity undertaken. Contrary to her claim, the applicant admitted in cross-examination that she entered the Commonwealth Law Courts via the outside staircase without apparent difficulty.
The Medical Evidence
Exhibit 4 is a copy of four reports to, we infer, Army medical officers by Dr Cameron, consultant neurologist, together with the reports by Dr Cameron of three nerve conduction studies. In his report dated 28 January 1999 Dr Cameron recorded a finding of reduced vibration sense in the applicant's feet and reduced pain in the distal portion of both feet. Reflexes were normal with no wasting or weakness evident.
In a further report dated 27 July 1999 Dr Cameron referred to low grade sensory disturbance which he opined was most likely to be a mild peripheral neuropathy. He also noted symptoms of restless leg discomfort but said the cause was not apparent. However, in a report dated 19 October 1999 Dr Cameron noted that the restless leg discomfort had been controlled by medication. In that report Dr Cameron concluded that the applicant had a symptomatic mild sensory neuropathy which was idiopathic.
In his report dated 9 June 2000 Dr Cameron noted that the applicant had ceased taking medication for the restless leg discomfort because she was concerned about side effects. Dr Cameron thought this was reasonable. Dr Cameron repeated his opinion that he thought the applicant had "a very mild sensory neuropathy", cause unknown.
Docment T21 is a report by Dr Knight, Consultant in Occupational Medicine, dated 17 November 1999 and addressed, in effect, to the Department of Defence. The report was prepared for the purpose of assessment of degree of permanent impairment.
Dr Knight found clinical examination generally unremarkable. He diagnosed a partial loss of use of legs due to bilateral compartment syndrome which he considered would continue indefinitely. He assessed the applicant's impairment at 0% under Table 9.5 of the Comcare Guide.
Document T27 is a detailed report dated 1 February 2000 by Jacel Bertoldi, Occupational Therapist, and addressed to the applicant's solicitors. Ms Bertoldi was asked to evaluate functional capacity and for this purpose she examined the applicant on 31 January 2000. We note in passing that the applicant reported she was not taking medication except very occasional Panadeine Forte and pain level in the lower legs was 1 on a scale 0-10. Results of the testing are set out in Ms Bertoldi's report. She concluded that lower limb impairment was 20% whole person impairment under Table 9.5 of the Comcare guide on the basis that the applicant can rise to a standing position and walk but has difficulty with grades, steps and distances. In her oral evidence Ms Bertoldi said she was satisfied the applicant performed the tests to the best of her ability but there were deviations from the performance of a normal healthy person.
In cross-examination Ms Bertoldi conceded she had not taken the second paragraph on page 3 of the Comcare Guide into account when assessing the applicant under Table 9.5.
Document T30 is a copy of a report of Dr Myers, Consultant Physician, dated 5 April 2000 and addressed to the applicant's solicitors. After recording a history generally consistent with other material before the Tribunal, Dr Martin reported his clinical findings and conclusions as follows:
"CLINICAL FINDINGS
General examination revealed an apparently fit healthy young woman. Her heart and cardiovascular systems were normal and further general examination was substantially normal. There were small well healed and faded scars over the mid part of her lower leg at the site other previous compartment release operations. Power was normally preserved in her lower limbs and reflexes and vibration sense were also normal. There were no objectively abnormal findings but she described some dysaesthesia in her feet particularly of her soles.
SUMMARY
Based on the above information and observations I can respond as follows to the schedule of questions:
1.The patient suffers from idiopathic peripheral neuropathy and has some symptoms residual from treated bilateral compartment syndrome.
2.The effects of this condition are permanent and probably became so in about 1994 or 1995.
3.See above.
4.The condition is now stable and all appropriate treatment has been undertaken.
5.Her compartment syndrome was probably due to her military employment whilst her peripheral neuropathy was not.
6.Her employment did accelerate and aggravate her compartment syndrome.
7.The patient does not have an assessable disability in terms of table 9.2. In terms of table 9.5 I consider that she has a ten percent level of impairment. She is able to stand and walk and although she is able to run 2.4 km twice a year to maintain her fitness levels, does have some difficulty with grades and steps. Whilst her peripheral neuropathy may well be contributory to her degree of disability, it would not be possible to quantify the degree of this contribution."

Apparently the solicitors sought clarification of the report because in a letter dated 25 January 2001 addressed to the solicitors, Dr Myers said:
"I am not sure how to clarify my opinion any further except to offer the following observations:
1.The patient was well before she joined the Army.
2.She developed pains in her legs after vigorous physical training and this was diagnosed by the Army experts as being due to a compartment syndrome.
3.She underwent surgery for this which was partially successful, but since then she has been left with pains in her legs.
4.These pains are sufficient to warrant a ten percent level of impairment as assessed in terms of Table 9.5 of the Comcare Guides.
5.Currently all I can find clinically on this patient is evidence of a mild sensory impairment due I think to an idiopathic peripheral neuropathy which is unassociated with her military service. This is insufficient to cause her an assessable disability under the Comcare Tables.
6. Any residual disability therefore is a consequence of her compartment syndrome and/or its surgical management, all of which occurred in the course of her military service.
7. Either her present symptoms are real or she is dissimulating. If they are real they are not due to her peripheral neuropathy so are presumably due to her compartment syndrome and its surgery. If she dissimulating this is not my field of expertise, such matters being the province of lawyers. I have no reason however to suspect that the patient is other than an otherwise fit, healthy, reliable and veracious young woman who has persisting troublesome discomfort in her lower limbs."

In his oral evidence Dr Myers confirmed his opinion that her condition of the legs was permanent and the evidence of peripheral neuritis was idiopathic. The pain experienced on exercise may be attributable to the compartment syndrome; the peripheral neuropathy is not the main cause of the symptoms, but he couldn't explain the relativity of the two conditions.
He disputed Ms Bertoldi's finding of restriction of movement in the ankles being satisfied, on his examination, that there was no restriction of movement.
In paragraph 1 of Exhibit A the applicant describes symptoms which are atypical of compartment syndrome. Also the description of symptoms in paragraph 7 of Exhibit A are not the symptoms of compartment syndrome. Dr Myers concluded that it is unlikely that the applicant has suffered compartment syndrome since Dr Sharwood performed the operations in 1997. That conclusion is evidenced by the fact of being able to run 2.4 km to satisfy the army fitness test.
In document T7 dated 13 February 1997, Dr Sharwood, Consultant Orthopaedic Surgeon, diagnosed a compartment syndrome and recommended treatment with the hope of being able to avoid surgery. He repeated his diagnosis and the hope of avoiding surgery in document T8 dated 27 March 1997. Documents T9 and T12 reports that Dr Sharwood performed surgery on 21 May 1997 (T12) for anterior and lateral compartment fasciotomies both legs.
Exhibit 1 is three reports by Dr Martin, Orthopaedic Surgeon, addressed to the respondent's solicitors. Dr Martin examined the applicant on 14 September 2000. Dr Martin preferred a diagnosis of idiopathic peripheral neuropathy as being consistent with the reported symptoms which are atypical for compartment syndrome. He opined that the peripheral neuropathy could not be attributed to the applicant's employment.
Dr Martin said that the diagnosis of idiopathic peripheral neuropathy had been made on the basis of the subjective evidence of the applicant. In a supplementary report dated 13 March 2001. Dr Martin essentially confirmed his earlier report. He added, in particular, that the fact of the fasciotomies (by Dr Sharwood) in May 1997 having had no influence upon the symptoms is an argument against diagnosis of compartment syndrome. That is an opinion which he confirmed in the further report dated 27 April 2001.
In his oral evidence Dr Martin said the sensory disturbance in the feet was the main symptom with peripheral neuropathy only a possibility. The applicant is not atypical of compartment syndrome because of good exercise tolerance and she would not be running if suffering compartment syndrome pain. Dr Martin said that the experiencing of pain was inconsistent with a diagnosis of peripheral neuropathy. Compartment syndrome does cause severe pain which can be overcome by changing the activity such as changing from running to walking etc. But the experiencing of pain at rest is not consistent with compartment syndrome. Nor can it be said that the operation performed by Dr Sharwood could be a cause of impairment.
the Applicant's Submissions
The evidence of Dr Myers is to be preferred to that of Dr Martin. Concessions by Dr Martin in his oral evidence show that bilateral compartment syndrome cannot be ruled out.
The Tribunal should be satisfied that the applicant suffers an ailment within the definition of disease and it would be accepted that it is a disease within the definition of injury.
Compartment Syndrome has been accepted as an injury within the terms of the Act and there has been no material change in the circumstances of the condition (Barker v Australian Telecommunications Commission 1990 95 ALR 72).
In considering the level of impairment and assessment under Table 9.5 the Tribunal should accept that pain is to be accepted as synonymous with "difficulty" as it appears in Table 9.5. Further the fact that she is able to overcome or withstand pain does not discount the degree of difficulty experienced by the applicant.
The question is does she have "difficulty" performing the nominated activities in Table 9.5.
The video in evidence may not assist the Tribunal because it does not show the symptoms of pain and restriction which is the "difficulty" to be considered.
Ms Bertoldi assessed whole person impairment at 20% and the assessment is justified by evidence.
The evidence shows restriction of movement in the legs and marked oedema of both lower legs.
Ms Bertoldi's assessment was objective which means she did not take into account pain caused difficulties.
Drs Martin and Myers did not assess the applicant when she was engaged in high level physical activity when the difficulties are most pronounced.
The peripheral neuropathy does not contribute to any significant degree to the level of impairment.
The Respondent's Submissions
The applicant has satisfied Army medical examiners that she has class 1 fitness. She is able to complete 2.4 km runs inside the prescribed time and has been ruled fit for overseas service. If there is permanent impairment caused by peripheral neuropathy and restless legs that is idiopathic and not work related. But the respondent's case is that there is no relevant permanent impairment and relies on the evidence of Dr Martin.
Ms Bertoldi's assessment of the impairment is inconsistent with the reports of Dr Myers and Dr Martin and no reliance should be placed on her evidence.
Dr Myers assessment of impairment at 10% is an overall assessment as to impairment of the legs.
Consideration
The respondent has previously accepted, and the evidence supports the position, that the compartment syndrome is an injury as defined and for which the respondent is liable. We accept that is the case.
The question is firstly whether there is a permanent impairment caused by the accepted injury. We think there is. The evidence shows that the condition has continued since the operation in 1997 and is likely to continue indefinitely. There is the co-existing condition of peripheral neuropathy and that has no known cause and is unlikely to be caused by the applicant's employment.
As the Comcare Guide notes in considering assessment of permanent impairment the loss to be considered relates to the health status of the applicant and includes anatomical loss, anatomical abnormality, physiological abnormality and psychological abnormality. Emphasis is given to loss of function as a basis of assessment of impairment using, as far as possible, objective criteria. Impairment is to be measured against its effect on personal efficiency in the "activities of daily living" in comparison with a normal healthy person.

That is the ultimate issue in this case because on an objective assessment of the applicant's activities of daily living the applicant performs at a level which denies any serious impairment.
She continues to perform her duties in the Army to a standard that results in her being classified as fit for overseas service. Ms Bertoldi noted deviations from performance of normal healthy people. Dr Knight concluded that clinical examination was unremarkable and Dr Myers found that the applicant was "an apparently fit healthy young woman" with "no objectively abnormal findings".
While we accept that the applicant most likely suffers some effects from compartment syndrome when she exercises strenuously, we are satisfied that it is more likely than not that these symptoms are not such as to cause significant impairment. In particular we are not satisfied that there is any significant loss of range of movement in the lower limbs. While Ms Bertoldi measured such a loss of movement, the fact of participation to accepted levels in Army physical activity such as the 2.4 km run is inconsistent with any significant loss of range of movement. We conclude that Table 9.2 of the Comcare Guide has no application in this case.
In relation to Table 9.5 of the Comcare Guide, which we consider is the only relevant table on the facts of this case, we are satisfied that the applicant can rise to a standing position and walk. We are not satisfied that the applicant has any significant difficulty with grades steps and distances.
The fact of being able to complete the 2.4 km run, regular physical training (at own pace) and use of a staircase without apparent difficulty, satisfies us that, on the balance of probabilities any difficulty with grades and steps caused by the bilateral compartment syndrome is de minimis and not capable of assessment under Table 9.5.
For these reasons we will affirm the decision under review.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe, Senior Member and Ms J Cowdroy, Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  2 August 2001
Date of Decision  4 July 2002
For the Applicant  Mr Harding
For the Respondent                 Mr Dickson