Bone and Military Rehabilitation and Compensation Commission

[2007] AATA 1866

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1866

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/1646

GENERAL ADMINISTRATIVE DIVISION		)
Re		NATHAN BONE

Applicant

And  MILITARY REHABILITATION AND   
 COMPENSATION COMMISSION

Respondent

DECISION

Tribunal	Dr J D Campbell, Member
Date	17 October 2007
Place	Sydney
Decision	The decision under review is set aside and in substitution it is decided that Mr Bone is entitled to compensation assessed at 20 per cent whole person impairment of the right hand.

........................[sgd]............................

Dr J D Campbell

Member

CATCHWORDS

MILITARY COMPENSATION – Claim for permanent impairment – Injury to right hand – Interpretation of the phrase ‘has difficulty grasping and holding’ – Issue of entitlement

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 – sections 14, 24, and 27
Acts Interpretation Act 1901 – section 23(b)

CASELAW

Comcare v Feidler (2001) 115 FCR 328
Whittaker v Comcare (1998) 86 FCR 532
Comcare v Ticsay (1992) 38 FCR 181
Thiele v Commonwealth (1990) 22 FCR 342

REASONS FOR DECISION

17 October 2007 Dr J D Campbell, Member

1.Mr Bone, born 18 April 1974, is right hand dominant and enlisted in the Australian Army on 22 February 2000.  Mr Bone injured his right hand during service, training as a heavy diesel mechanic on 23 July 2002 (‘the injury’). A compensation claim, dated 23 November 2004, noted that a nut socket split whilst Mr Bone was servicing a transmission, which thrust his right hand into the chassis. Mr Bone received a right hand dorsum laceration between the fourth and fifth metacarpal heads.  

2.On 10 February 2006 the Respondent accepted liability for consequences arising from the right hand crush injury and tethering of the fifth extension tendon.

3.In a reconsideration decision of 22 August 2006, the Respondent determined that Mr Bone suffered nil impairment and was not entitled to payment of compensation pursuant to Tables 9.1 and 9.4 in the ‘Guide to the Assessment of the Degree of Permanent Impairment’ (‘the approved Guide’).

Issues

4.The relevant issues in this matter are:

(a)Has Mr Bone suffered impairment to his right hand as a consequence of the injury?

(b)Is the impairment permanent?

(c)What is the degree of permanent impairment assessed pursuant to provisions of the approved Guide?

(d)Is Mr Bone entitled to payment of lump sum compensation for permanent impairment of his right hand pursuant to section 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (‘the Act’)?

Decision

5.For reasons stated later in this decision I conclude that:

(a)Mr Bone has suffered an impairment to his right hand as a consequence of the injury;

(b)The impairment is permanent;

(c)The permanent impairment to Mr Bone’s right hand is assessed at 20 per cent whole person impairment pursuant to Table 9.4 of the approved Guide;

(d)Mr Bone is entitled to compensation and the matter is remitted to the Respondent for calculation.

Consideration and Findings

6.In oral evidence Mr Bone detailed the circumstances of the injury to his right hand including treatment and the healing process. This was consistent with the written material in evidence particularly clinical history as detailed in medical reports of Dr Tassan, a plastic surgeon on July/August 2002; Dr Rowe an occupational physician in April 2005; Dr Vecchio a rheumatologist on September 2005; Dr Maxwell an orthopaedic surgeon in October 2006 and Dr Harvey an orthopaedic surgeon specialising in hand surgery on March 2007.

7.Mr Bone felt after a period of six to twelve months (that is between December 2002 and July 2003) that the post injury condition of his right hand had stabilised. Dr Tassan’s reports of 31 July and 7 August 2002, only weeks after the incident, record adherence of skin to underlying extensor tendon on the dorsum of the right hand.

8.Dr Rowe’s report dated 21 April 2005 noted Mr Bone still had some discomfort and loss of mobility in his right fifth finger; a loss of grip strength in the right hand; plus difficulty grasping and holding heavy spanners using his right hand. Mr Bone was assessed at having grip strength of 30 kg in his right hand and 42 kg in the left hand. Dr Rowe considered the right hand condition to be stabilised and permanent. He assessed that, at that time, Mr Bone had 20 per cent whole person impairment, pursuant to Table 9.4 because of a loss of ability to hold and grasp.

9.Dr Vecchio’s report dated 26 September 2005 noted that Mr Bone was complaining of discomfort when using and gripping a hammer with his right wrist. Dr Vecchio also reports discomfort over dorsum of the fourth and fifth metacarpal heads, particularly when Mr Bone weight bears on the right hand. Dr Vecchio noted Mr Bone was able to hold objects with his right hand, undertake self-care and participate in domestic chores. However he concluded that there are objective difficulties with functional grasping of the hand, particularly in his trade, not apparent with simple tests. Dr Vecchio considered the condition may be amenable to surgical treatment and that the pre-enlistment fifth metacarpal head fracture is not relevant, as it is only coincidentally regionally co-located. Dr Vecchio considered at the time of examination that Mr Bone had 20 per cent whole person impairment pursuant to Table 9.4, because of difficulty with grasping and holding. Although in the clinical tests performed in his office he was unable to objectively test for the complaints nominated by Mr Bone. It seems pincer gripping, fisting, holding a pen and grasping objects did not demonstrate the difficulty.

10.Dr Maxwell’s report dated 19 October 2006 noted that Mr Bone complained of experiencing aching in his right wrist when using a computer, difficulty holding a ski rope when wake-boarding and extending the proximal interphalangeal joint of his right fifth finger. Dr Maxwell, at examination, noted measurements of both upper arms and forearms consistent with a right hand dominant person and that he was able to hold a hammer and do a hammering action with his right hand without difficulty. Dr Maxwell concluded Mr Bone was not suffering any impairment, permanent or otherwise, as a consequence of his claimed condition and that there was no need for surgery. Dr Maxwell did report that Mr Bone was affable and cooperative during the consultation.

11.In a report dated 21 March 2007, Dr Harvey an Orthopaedic Surgeon specialising in hand surgery, noted that Mr Bone complained of persistent pain over the back of the hand in the region of fourth and fifth metacarpals. Pain was radiating from the back of the wrist, brought on by exerting pressure with the outstretched right hand. Pain was also reported on the dorsum of  the right hand over the fifth metacarpal when pulling on the hand of a ratchet wrench.  Further pain occurred on the front of the fifth metacarpal and palm when lifting heavy weights. Dr Harvey also noted a complaint by Mr Bone of weaker grip strength in the right hand.

12.Dr Harvey reported at examination that Mr Bone’s main impairment was lack of full active extension in both the metacarpophalangeal and proximal interphalangeal joints, with some tethering of skin to underlying tissues in the region of the scar on the dorsum of the right hand. Dr Harvey noted grip strength in Mr Bone’s right hand averaged 39 kg and in his left hand, 42 kg. Dr Harvey considered that Mr Bone had quite effective flexion in his right hand. A minor loss of extension would not significantly reduce function of the right hand. Any slight loss of grip strength was of little significance and dependent upon the activity of flexor tendons as opposed to the extensor tendons.

13.Dr Harvey considered Mr Bone’s condition to be quite static and any further treatment for his hand condition is not required. Dr Harvey reported the injury has resulted in minimal incapacity, meaning that Mr Bone lacked full active extension in the fifth finger of his right hand. However, most right hand activities such as gripping would remain unaffected. This should not reduce his ability to engage in activity. As a result of the injury Dr Harvey considered that Mr Bone has a slight permanent impairment. Coupled with minimal loss of function in hand and wrist, this qualified for five per cent whole person impairment pursuant to Table 9.1. Dr Harvey considered that there was no impairment which could be assessed pursuant to Table 9.4. In making such findings Dr Harvey did not believe that there was any evidence of non-organic factors or voluntary or involuntary exaggeration of the symptoms or signs.

14.In statements dated 13 April 2007 and 1 August 2007 (exhibits A1 and A2) Mr Bone details the following:

(a)Since the injury to his right hand he has experienced persistent pain in the right hand which radiates over back of the hand in the region of fourth and fifth fingers;

(b)He has lost strength in his right hand, as exampled when using a screwdriver, which involves a twisting motion;

(c)He has difficulties in grasping and holding trade based tooling, such as wrenches, hammers and screwdrivers, because of pain;

(d)When using tools at work, he experiences pain in the hand as well as the wrist when pulling, pushing and twisting tools;

(e)He experiences pain in the hand and wrist when doing push-ups;

(f)He has difficulty in swinging hammers due to loss of strength and pain in the right hand;

(g)The lifting of heavy weights is problematic because of pain with repeated lifting which exacerbates his symptoms;

(h)His condition varies from day to day depending on the workload;

(i)The simple tests that he has been subjected to by the doctors caused him no problems – it is the grasping and holding work tools which creates the problems;

(j)He experiences difficulty when trying to slice a rump or fillet a fish;

(k)He experiences trouble typing on a keyboard with the last two fingers on his right hand;

(l)He experiences pain in his right hand, when attempting to open or close sliding windows and doors;

(m)He experiences pain when pull starting a lawn mower with his right hand and when using a wood or tree saw;

(n)He experiences difficulty in grasping a hose, when trying to fit fitting to a hose, before crimping items together and also when fitting hydraulic hoses to equipment;

(o)He experiences difficulty with holding and grasping his own weight on bars and also experiences pain while grasping and lifting weights.

15.In oral evidence Mr Bone stated that he has some difficulty with target shooting and wake-boarding due to his shoulders and right hand problems, but no difficulty in pursuit of his fishing hobby (exhibit R3). Mr Bone believes his ability to grip is reduced due to pain and a loss of strength in his right hand because he uses it less now. He believes this to be in the order of a one third reduction in ability. Mr Bone believed that he experiences a sliding scale of difficulty proportional to the heaviness of task. Mr Bone also commented that his difficulties in the use of his right hand have not prevented him from undertaking his Army activities, although he does experience problems with particular fitness test activities plus rolling and preparing his pack for field activities. Mr Bone stated that he has recently been promoted; undertakes duties in a more supervisory capacity, but when in difficulty with heavy work seeks assistance from others. Mr Bone stated that he has never been medically downgraded because of his right hand injury (as opposed to his shoulder injuries). He has also never been placed on work restrictions because of his right hand injury, apart from the convalescent period in 2002.

16.In oral evidence Dr Rowe confirmed his earlier written opinion. Dr Rowe stated the difficulties that Mr Bone experiences in regard to his right hand with work, social and domestic activities are consistent with the nature and extent of impairment. Further in being advised of Dr Harvey’s measurement of grip strength in 2007, Dr Rowe stated his earlier view was one that could be formed independent of grip strength findings; recognising in turn that his earlier comments appeared to rely on his earlier findings of a 25 per cent variation between right and left hand.

17.Both Drs Harvey and Maxwell in oral evidence affirmed their written opinions. Dr Harvey did not believe that slicing ‘a rump’ should cause a difficulty as Mr Bone’s impairment does not in his view affect capacity to cut up meat. Dr Maxwell, in affirming his earlier opinion stated he was unable to find any significant pathology which would demonstrate any less function in relation to grasping and holding and that there would be no benefit from surgery. Dr Maxwell was particular in accepting Mr Bone’s evidence in regards to experiencing pain in his right hand.

18.In addressing the issues raised by the outlined material, I observe that Mr Bone has reported to the various assessing and treating clinicians, a consistent account of difficulties encountered as a consequence of the injury. Further, I observe that despite his nomination of continuing difficulty with use of his right hand in the workplace and other activities of military life, no report of any complaint of such symptomatology is recorded in his military medical notes contained in the Tribunal documents. Nor is there any evidence of medical restrictions being placed on him in the workplace as a consequence of his right hand injury. In so noting I recognise that much medical notation, assessment and treatment is recorded in relation to both shoulder injuries and that medical downgrading and restrictions have occurred in relation to these separate injuries.

19.Mr Bone has provided the Tribunal with a long list of circumstances in both work, social and domestic activities that cause him to experience pain to the dorsum of his right hand radiating to his right wrist. An analysis of the list highlights twisting, grasping and holding of heavy weights and tools as the precipitator of symptomatology. Drs Maxwell, Harvey and Vecchio in reporting on Mr Bone have been unable to objectively verify such subjective symptomatology in tests performed during their respective clinical examinations. Mr Bone acknowledges this situation.

Whilst Mr Bone may experience difficulties in remembering as to how and when exactly his fifth right metacarpal was fractured, although this was disclosed at the enlistment medical examination, I draw no adverse inference from his memory difficulties in this regard. Indeed as a consequence of a careful examination of all the material, I conclude that Mr Bone has detailed a relatively consistent story of his injury to his right hand and the sequelae flowing from it. In support of such a finding, I note the opinions of the five reporting specialists, particularly Drs Maxwell and Harvey in their beliefs as to the integrity of clinical history and symptomatology detailed by Mr Bone.

Has Mr Bone suferred impairment?

21.The Act defines impairment in the following manner:

‘‘…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’’ – s4

22.I note that of the four specialist doctors who have given more recent opinion in this matter, only Dr Maxwell concluded Mr Bone has not suffered any impairment as a result of his injury. Such a finding is consistent with his further finding that he was unable to identify any significant pathology in the right hand as a consequence of the injury.

23.I have previously discussed the opinions of Drs Tassan, Rowe, Vecchio and Harvey in regards to the issue of impairment. I note the evidence of Mr Bone as to matters he has described concerning the use of his right hand. Further I am aware of the earlier grip strength recordings detailed by Dr Rowe in April 2005. I am satisfied such recordings represent findings of the clinician at that time. I further note later evidence in 2006/2007 is available, with Dr Maxwell detailing a clinical finding of no apparent loss of grip strength in the right hand. This is a finding that I understand is made without resort to technical assistance as there are no defined readings recorded. Mr Bone continues to complain of some diminution of grip strength in his right and dominant hand. Such a complaint receives some validation from the averaged readings recorded by Dr Harvey in 2007. These readings demonstrate a lesser grip strength in the dominant right hand.

24.In regard to the evidence supplied I am satisfied on the balance of probabilities that Mr Bone does suffer from impairment to his right hand as a consequence of the injury in July 2002. I consider that the ongoing impairment is best described in the following terms: a loss of full, active extension of both the metacarpophalangeal and proximal interphalangeal joints of the right hand fifth finger, some tethering of the skin to underlying tissues in the region of the scar on the dorsum of the right hand between the fourth and fifth metacarpals, a loss of grip strength in the right hand and existence of pain on the dorsum of the right hand when undertaking a range of defined work, social and domestic activities, with pain that radiates to dorsum of the right wrist when undertaking heavier tasks.

Is the impairment permanent?

25.Section 24(2) of the Act nominates factors that I must give regard to in determining whether the impairment is permanent. Dr Maxwell is the exception who does not believe there is any impairment. The four remaining opinions are of one mind in regards to the ongoing nature of impairment; that Mr Bone’s impairment is stable with little likelihood of any further impairment in the condition.

26.Dr Tassan in August 2002 and Dr Vecchio in September 2005 both raised the issue that the injury may benefit from surgical intervention. Mr Bone, after the experiences of a friend, does not wish to undergo any surgical intervention. Importantly, the later oral opinion of Dr Maxwell was that surgery would be of no benefit and in October 2006 it was documented that there is no indication for surgery. However as previously discussed, Dr Maxwell forms this opinion with the additional belief of there being no impairment to perform surgery on. Dr Harvey in his report of 21 March 2007 concluded Mr Bone has undertaken all reasonable and medical rehabilitation treatment and that the impairment cannot be reduced by any further medical or rehabilitative treatment.

27.Having given regard to the matters that I must, I am satisfied on the balance of probabilities that Mr Bone’s impairment is permanent. In so finding I consider the opinions of the two consulting orthopaedic surgeons, Drs Maxwell and Harvey paramount concerning the issue of whether surgical intervention should occur. The view, in regard to surgical intervention or, for that matter, any additional treatment being of benefit, is simply no. While I  acknowledge that Dr Tassan, a plastic surgeon, suggested that surgery may be an option in the future, this was during the early treatment phase in August 2002 and without the ability to gain a further opinion from him, it can be given limited weight considering the very early stage of the report. In 2005, Dr Vecchio also voiced the possibility of surgery, but such a possibility has been effectively vetoed by the current opinion of the two orthopaedic surgeons.

What is the assessed degree of permanent impairment?

28.In addressing the issue of assessment of the permanent impairment nominated in this matter, I am mindful that both the introduction and content of Tables 9.1 to 9.5 to the approved guide has been the subject of much discussion and adverse criticism in many cases over the years. I do not intend to reiterate such matters.

29.In addressing the issues of the construction of the approved Guide I note the following principles outlined in particular cases:

Thiele v Commonwealth (1990) 22 FCR 342 at 346:

“Approach to the construction of the legislation

The present legislation is socially remedial legislation intended to benefit workers and should be given a construction which advances its purposes as such. Thus where two constructions are possible, that which is favourable to the worker should be preferred: Wilson v Wilson's Tile Works Pty Ltd (1960) 104 CLR 328 at 335, per Fullagar J.”

Comcare v Ticsay (1992) 38 FCR 181 at 188:

“The Guide should be construed and applied in aid of the general statutory purpose, not as a means of limiting it.”

Whittaker v Comcare (1998) 86 FCR 532 at 545:

“The general legislative purpose or intent is that an employee who suffers injury causing more than minor permanent impairment is entitled to compensation…The Guide, which has this limited role, should not be allowed to limit the general legislative purpose.”

30.The Full Federal Court held in Whittaker v Comcare at 545:

“There is no discretion: where both Tables 9.2 and 9.5 are applicable, the decision- maker must assess the degree of permanent impairment under that one of Tables 9.2 or 9.5 which yields the most favourable result to the employee.”

31.In the matter to hand, Tables 9.1 and 9.4 have been the subject of consideration by the various specialists in assessing the degree of permanent impairment of Mr Bone’s right hand injury. While Dr Maxwell considered that there was no impairment and hence no permanent impairment, Dr Harvey considered Mr Bone to have a slight permanent impairment which he assessed at five per cent pursuant to Table 9.1. Both Drs Rowe and Vecchio considered Mr Bone to have a permanent impairment which they assessed at 20 per cent pursuant to Table 9.4.

32.Having considered the evidence, the opinions of the various specialists and the nature of the permanent impairment, I conclude that assessment of Mr Bone’s permanent impairment under Table 9.4 is the task that I must address. Assessment under Table 9.4 is one which yields the most favourable outcome. Any assessment under Table 9.1 at best results in a five per cent whole person impairment, if Dr Harvey’s assessment was to be preferred.

33.I note the content of Table 9.4 which provides:

TABLE 9.4:     Limb Function – Upper Limb

(Percentage Whole Person Impairment)

%	DESCRIPTION OF LEVEL OF IMPAIRMENT
10	Can use limb for self care AND grasping and holding BUT has difficulty with digital dexterity
20	Can use limb for self care BUT has NO digital dexterity OR has difficulties grasping and holding
30	Retains some use of limb BUT has difficulty with self care
40	Cannot use limb for self care

34.In this matter a significant issue between the parties was the meaning to be given to the word ‘difficulties’ as nominated in the 20 per cent assessment category. Mr Bone’s Counsel contended that it should be given a similar meaning to the word ‘difficult’ in the 10 per cent assessment category. The Respondent’s Counsel submitted that the word ‘difficulties’ implied by its use, as requiring something more than simply it being troublesome or not easy to grasp and hold.

35.For his position, Counsel for Mr Bone relied upon the Full Federal Court decision in Comcare v Fiedler (2001) 115 FCR 328 at 334:

“The word "difficulty", like most ordinary English words, has no fixed meaning but is, as the Tribunal observes, 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, 1997), "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, 1989), 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.”

“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 at 544-545, justify a 10 per cent impairment assessment under par 1 of Table 9.4.”

36.The Respondent’s Counsel submitted, having noted the use of the words ‘difficult’ and ‘difficulties’, both with and without accompanying adjectives such as ‘minor’, ‘major’, ‘moderate’, ‘varying degrees’ and ‘great’ in other sections of the approved Guide, that the very use of the word ‘difficulties’ as opposed to the word ‘difficult’ indicates an intention by the drafter to draw distinction between the two words and that the words, and thus their meanings, were not interchangeable. In so submitting, Counsel considered use of the word ‘difficulties’ implies something more than it being troublesome or not easy to grasp and hold. Counsel also submitted that the phrase ‘difficulties in grasping and holding’ should be read in the context of the preceding phrase in the same paragraph – ‘has no digital dexterity’.

37.In addressing such contentions, I acknowledge that the drafter of the Table had the opportunity to qualify the words ‘difficulty’ or ‘difficulties’ with a variety of adjectives as done elsewhere in the approved Guide tables. The fact the drafter has not elected to do so would indicate that it was not their intention to so qualify. In such circumstances it would be improper to import qualifications into the interpretations of the words ‘difficulty’ or ‘difficulties’ simply on the grounds that the qualifications were not there, or could be implied from the level of whole person percentage being considered. Further it would be creating a construction of the word, far less favourable to Mr Bone than a construction based solely on the meaning of the unqualified word.

38.Further, I believe it inappropriate to infer a level of severity from the phrase ‘has no digital dexterity’ and import and incorporate such a level of severity within the phrase ‘has difficulties in grasping and holding’. To do so, in my opinion, constitutes a failure to recognise that the drafter has opportunity to qualify the word ‘difficulties’ and did not. Such a construction implies an assertion that the two impairments being considered (‘no digital dexterity and difficulties in grasping and holding’) are not of equal merit in the assessment process as they stand and can only be of equal merit if such severity, inherent within the former, is incorporated as a qualifier to the latter. Such an outcome (imported qualifier) would appear to ignore the different origins of the two impairments and their different contribution to the whole person impairment assessments involving the upper limb. To put it plainly the significance of digital dexterity and the ability to hold and grasp, in the assessment of whole person impairment of the upper limb, may or may not have varying degrees of contribution to the assessment process, recognising in turn, that each impairment may be independent of the other. Simply to conclude they are of equal merit by incorporating an inferred severity index from one to the other would, in my opinion, be an error and specifically limiting the statutory purpose of the Act.

39.In addressing the issue of the meaning of the word ‘difficulties’, my view is to regard the word as no more than the plural form of the word ‘difficulty’. Further, section 23(b) of the Acts Interpretation Act1901 states that:  “…unless the contrary intention appears: words in the singular number include the plural and words in the plural number include the singular.” Counsel for the Respondent contend that by the use of the word ‘difficulty’ in the 10 per cent impairment and the word ‘difficulties’ in the 20 per cent impairment, there was a clear intention to distinguish between the two Tables by using the singular and the plural forms.

40.In developing this contention, Counsel argued that difficulties in grasping and holding did not just mean difficulty in grasping and difficulty in holding, but requires a more substantial degree of difficulty for a 20 per cent impairment rather than simply, in the words of Comcare v Fiedler, finding it troublesome or not easy to do. Counsel also contended that there is nothing illogical in distinguishing between ‘difficult’ and difficulties’ in the progression of the severity of the assessment of whole person impairment process in Table 9.4.

41.In addressing the further contentions raised, I remain unconvinced that the drafter was inferring any intention, let alone contrary intention when using the words ‘difficulty’ and ‘difficulties’. In my view, the drafter considered three components to each level of impairment (up to 30 per cent) within Table 9.4, namely self care, grasping and holding and digital dexterity. The drafter uses the word ‘difficulty’ in relation to digital dexterity at 10 per cent, the word ‘difficulties’ in relation to grasping and holding at 20 per cent and ‘difficulty’ in relation to self care at 30 per cent. In the context of Table 9.4, I am not convinced that the drafter was using the words ‘difficulty’ and ‘difficulties’ in a particular manner so as to qualify a level of severity, or indeed to indicate a contrary intention as suggested. In such circumstances, the meaning given to the word ‘difficulty’ in the matter of Comcare v Fiedler, would equally apply to the word ‘difficulties’. With such an interpretation, the word ‘difficulty’ and ‘difficulties’ would have a common and consistent meaning within the context in which they occur and in the manner in which they are or are not qualified at each level of the Table.

42.Less I be in error in my primary finding and that a difference in meaning is inherent in the word ‘difficulties’, I reiterate my earlier view that the word ‘difficulties’ is the plural of the word ‘difficulty’. In noting the definition of the word ‘difficulty’ in Comcare v Fiedler, I observe that the very definition encompasses a range of conditions from being ‘not easy’, ‘hard to do’, and ‘requiring much effort’ and ‘of being troublesome’. I am mindful that within the ambit of the definitional phrases, there is indeed scope to define these words in a manner which the Full Court of the Federal Court has done in Comcare v Fiedler. For example, as ‘troublesome’, ‘not easy to do tasks’ or in a manner such as ‘hard to do’ and ‘requires much effort’. A careful analysis would, I suggest, conclude that the onus implicit in the ‘hard to do’ and ‘requires much effort’ hurdle is a subjectively and objectively different onus than that posed by the Fiedler test of ‘not easy’ and ‘troublesome’.

43.The analysis undertaken relates to the definition of the word ‘difficulty’. The Full Federal Court, in the matter of Comcare v Fiedler, has defined what the word ‘difficulty’ is to mean within the statutory context. To pluralise the word and suggest it should have a different meaning within a like statutory context would, in my view, be an error in construction.

44.I would also note that even if a construction as suggested by the Respondent was appropriate, the test of ‘difficulties’ would become one of ‘hard to do’ and ‘requires much effort’. Further, it would be adopting a construction which is less favourable to the worker.

Is Mr Bone entitled to compensation?

45.I find that Mr Bone is entitled to payment for compensation at 20 per cent whole person impairment pursuant to Table 9.4 in that he has difficulties with holding and grasping, while having digital dexterity and being able to use the limb for self care.

46.In concluding as I have, I am mindful of my earlier findings that there was nothing to indicate that Mr Bone was anything other than a reliable witness. Further, in the circumstances in his work, social and domestic environments, in which he states he experiences difficulty with holding and grasping, I am more than satisfied that such circumstances constitute more than minimal problems. Indeed, I would suggest that some of the circumstances described by Mr Bone would satisfy the ‘hard to do’ or ‘requires much effort’ test if that was the appropriate test. The activities which fall within the latter categories include tasks associated with the diesel hydraulic fitting and activities associated with heavy manual use of his right hand.

47.In noting again the medical opinions in this matter, I would acknowledge that the clinical opinions of Drs Rowe and Vecchio are consistent with the findings I have made, albeit Dr Rowe believing such an outcome somewhat generous to Mr Bone. I note that both Drs Maxwell and Harvey consider Mr Bone to be a reliable narrator of his clinical history and symptoms. Dr Harvey concluded that Mr Bone has five per cent whole person impairment pursuant to Table 9.1 and considers it inappropriate to make a rating pursuant to 9.4. I find this inconsistent with his earlier finding that Mr Bone was a reliable historian. Further, both Drs Maxwell and Harvey were unable to replicate Mr Bone’s symptom complaints in clinical tests conducted in their rooms, although Dr Harvey did note a difference in grip strength. Such an outcome relates in part to the nature of the tests conducted in the clinical setting and the ability of such tests to replicate and/or take account the manual effort required when working with heavy machinery or indeed a soldier undertaking some of the more arduous activities associated with his military duties. In such circumstances, I have placed less weight on the opinion of Dr Maxwell. In regards to the opinion of Dr Harvey, there is no written evidence in his report, apart from grip strength, that he conducted any particular tests to try to replicate the symptoms of which Mr Bone was complaining when undertaking particular tasks involving heavy manual activity. Again as with Dr Maxwell, there exists an inconsistency between an acceptance by each of them of Mr Bone’s complaint and their endeavours to replicate circumstances which would either support or not support Mr Bone’s complaints. In such circumstances I consider the foundation relied upon by both doctors upon which to assess Mr Bone’s complaints as arising from his impairment as somewhat deficient.

Determination:

48.The decision under review is set aside and in substitution I conclude that Mr Bone:

(a)Has a permanent impairment of his right hand;

(b)Such a permanent impairment is assessed at 20 per cent whole person impairment pursuant to Table 9.4;

(c)Costs are awarded to the Applicant; and

(d)The matter is referred to the Respondent for calculation and finalisation of the compensation payment in relation to the nominated permanent impairment.

I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Dr. J. Campbell

Signed:         ...............[sgd]...............................................................
  Associate

Date/s of Hearing  1 August 2007
Date of Decision  17 October 2007
Counsel for the Applicant         Mr D Richards
Solicitor for the Applicant          Ms S Lepage
Counsel for the Respondent     Mr B Dubo
Solicitor for the Respondent     Mr P Nolan