Brennan-Lim v Return to Work SA

[2017] SASCFC 105

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Civil)

BRENNAN-LIM v RETURN TO WORK SA

[2017] SASCFC 105

Judgment of The Full Court

(The Honourable Justice Parker, The Honourable Justice Lovell and The Honourable Justice Hinton)

18 August 2017

WORKERS' COMPENSATION - ASSESSMENT AND AMOUNT OF COMPENSATION - AMOUNT OF COMPENSATION DURING INCAPACITY - LUMP SUM PAYMENTS - SPECIFIC INJURIES - LIMB INJURIES

WORKERS' COMPENSATION - ASSESSMENT AND AMOUNT OF COMPENSATION - AMOUNT OF COMPENSATION DURING INCAPACITY - LUMP SUM PAYMENTS - PERMANENT IMPAIRMENT AND LOSS

WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - PROCEDURE - GENERALLY

WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - EVIDENCE - MEDICAL EVIDENCE

Appeal against a decision of the Full Bench of the Workers Compensation Tribunal.

The appellant sustained injuries when she suffered a fall during the course of her employment. In October 2011, the appellant underwent surgery for a total knee replacement of her right knee. In 2013, the appellant claimed lump sum compensation for non-economic loss arising from her injuries. The claims agent obtained a medical report from Dr Dobson. Dr Dobson assessed the appellant as having suffered a 15% whole person impairment (WPI) due to her right knee replacement. The appellant accepted the determination to award her $29,231 as compensation.

In March 2015, the appellant lodged an application with the Workers Compensation Tribunal disputing Dr Dobson’s previous 15% WPI assessment. Dr Dobson provided a revised WPI assessment of 20% for the appellant’s right knee impairment and 1% for scarring. The appellant relied on the evidence of two occupational physicians, Dr D’Onise and Dr Suyapto, who both assessed WPI at 32%. The Deputy President accepted Dr Dobson’s revised assessment and awarded lump sum compensation of $45,551. The appellant unsuccessfully appealed the Deputy President’s decision to the Full Bench of the Workers Compensation Tribunal on a question of law.

The appellant now appeals to this Court on three grounds:

1.  That the Deputy President provided inadequate reasons to support his finding that the appellant was mistaken when she testified her knee pain was constant, rather than intermittent;

2.  That the appellant was denied procedural fairness because she was not given an opportunity in her evidence to comment on the proposition that she was mistaken; and

3. That the Deputy President and the Full Bench erred in their construction of Table 17.35 of the WorkCover Guidelines for the evaluation of permanent impairment and section 43A(8)(b) of the Workers Rehabilitation and Compensation Act 1986 (SA) (Act).

Held per Parker J (Lovell and Hinton JJ agreeing), dismissing the appeal:

1. The appellant’s evidence that there had been no deterioration since 2013, combined with the evidence of all three assessors about fluctuations on the day of assessment supported the Deputy President’s conclusion that the appellant’s knee pain was intermittent, rather than constant (at [92]-[94]).The Deputy President’s reasons satisfy each of the requirements referred to in RESI Corporation v Munzer [2016] SASCFC 15 and were adequate (at [95]);

2.  The appellant must have always been aware that the issue in dispute was whether Dr Dobson’s assessment should be preferred to those made by Dr D’Onise and Dr Suyapto. There was no procedural unfairness (at [100]-[101]); and

3. The Full Bench correctly observed that it is necessary in cases where symptoms fluctuate within moderate limits to identify the baseline level of impairment and to distinguish that from the impairment shown at times of acute presentation. Neither the Deputy President nor the Full Bench erred in their construction of Table 17.35 or section 43A(8)(b) of the Act (at [114]-[115]).

Held per Lovell and Hinton JJ:

With respect to the first ground of appeal:

1.  The question of law was whether the reasons given were adequate, not whether the conclusions were open on the evidence (at [136]).

2.  The appellant never contested the accuracy of Dr Dobson’s notes. Accordingly, whether the appellant used the expression “intermittent” in her consultation, or whether it was Dr Dobson’s conclusion based on her description of her pain is irrelevant. Either way, Dr Dobson’s notes reflect a history that is contrary to the appellant’s assertion of constant pain (at [133]-[135]).

Workers Rehabilitation and Compensation Act 1986 (SA) s 43, s 43A, s 90, s 94, referred to.
Browne v Dunn (1893) 6 R 67; Carmello Baldacchino v Workers Rehabilitation and Compensation Corporation (Monier Roofing Ltd) [1995] SAWCAT 3; Diana (nee Apolloni) v Coles Group Limited [2008] SAWCT 33; El-Masri v Molloy [2015] SASCFC 63; Hoffman La Roche v Secretary for Trade and Industry [1975] AC 295; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; Papps v Police (2000) 77 SASR 210; RESI Corporation v Munzer [2016] SASCFC 15; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Thomas v Van Den Yssel (1976) 14 SASR 205, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED

"WorkCover Guidelines for the evaluation of permanent impairment."

BRENNAN-LIM v RETURN TO WORK SA
[2017] SASCFC 105

Full Court:       Parker, Lovell and Hinton JJ

1. PARKER J:          This is an appeal against a decision of the Full Bench of the South Australian Employment Tribunal concerning the assessment of compensation for a permanent impairment under the now repealed Workers Rehabilitation and Compensation Act 1986 (the Act). The appellant suffered a knee injury that ultimately was treated by knee replacement surgery.

2. Permission has been granted by a judge of this Court under s 86A of the Act to appeal on the following three questions of law:

   1Whether the reasons of the Deputy President for finding that the applicant mistakenly testified that her knee pain was constant or intermittent were adequate in law?

   2Whether the finding that the applicant was mistaken when she testified that she suffered constant pain was procedurally unfair in that she was not given an opportunity when giving her evidence to comment on the peculiar proposition that she was honest but mistaken in testifying that her pain was constant?

   3Whether the Deputy President and the Full Bench erred in the construction given to Table 17.35 of the WorkCover Guidelines for the evaluation of permanent impairment and s 43A(8)(b) of the Workers Rehabilitation and Compensation Act 1986 (SA)?

   Background

3. The appellant was employed by De Poi Consulting Pty Ltd as a rehabilitation consultant. She is a registered nurse by profession. Her duties with De Poi related to the rehabilitation of injured workers. On 4 March 2004 she fell on a footpath when leaving a meeting that she had attended in the course of her employment. That fall resulted in a fracture of her right elbow, injury to her right wrist and, of present relevance, contusions to her left and right knees that aggravated underlying degenerative changes. Ultimately, due to ongoing problems with her right knee, the appellant underwent surgery in October 2011 for a total knee replacement.

4. In 2013 the appellant claimed lump sum compensation for non-economic loss arising from her leg injuries under s 43 of the Act. Following that application, Employers Mutual Management Pty Ltd (EML), being the claims agent for what was then the WorkCover Corporation, sought a medical report from an orthopaedic surgeon and accredited assessor, Dr Peter Dobson. Dr Dobson had treated the appellant for her original injuries. He assessed the appellant as having suffered a 15% whole person impairment (WPI) due to her right knee replacement, a 0% WPI on account of the left knee injury and a 0% WPI on account of scarring.

5. The assessments made by Dr Dobson were accepted by EML. On 9 December 2013 EML determined that the appellant was entitled to $29,231 by way of lump sum compensation for non-economic loss based upon the 15% WPI arising from her right knee injury. That amount was calculated by reference to the scale of entitlements that were fixed by the Workers Rehabilitation and Compensation Regulations 2010 that applied in 2011, i.e. at the time of the knee replacement surgery.

6. The appellant accepted the determination made by EML and was paid the sum it had determined. In early 2015 the appellant was advised by her employer that it may not be able to continue her employment. She then sought legal advice about her compensation entitlements. Thereafter, on 30 March 2015 the appellant lodged an application with the Workers Compensation Tribunal under s 90 of the Act disputing the assessment of 15% WPI made by Dr Dobson. While the notice of dispute was well outside the limit of one month prescribed in s 90A(1) of the Act, an extension of time was granted by the Tribunal.

7. The appellant’s application was heard by a Deputy President. Section 94C(1) of the Act required the Tribunal to decide the dispute without regard to decisions made in earlier proceedings. Thus, the Tribunal was required to approach the matter as a de novo appeal.

8. In addition to her own evidence, the appellant relied upon the reports and oral evidence of two accredited assessors, Dr Roberto D’Onise and Dr Dion Suyapto. They are both occupational physicians. Dr D’Onise and Dr Suyapto had each reported that the appellant’s WPI was 32%. In both instances that had comprised 30% for the impairment to the right knee and a further 2% for scarring.

9. The respondent relied upon the report of Dr Dobson and his oral evidence. Dr Dobson conceded that he had erred by not assessing the appellant’s right knee impairment at 20% WPI. He also conceded that the scarring produced a WPI of 1%.

10. The Deputy President found that Dr Dobson, Dr D’Onise and Dr Suyapto were each impressive witnesses. His Honour accepted the evidence of all three expert witnesses that a variation in the measurements of range of motion and the degree of instability may reflect how the person felt on the day of the examination.

11. The Deputy President found that the appellant had reported to Dr Dobson that she suffered intermittent pain but had told both Dr D’Onise and Dr Suyapto that her pain was constant. His Honour concluded in light of what the appellant had told Dr Dobson that she must be mistaken in her evidence that there was always some pain in her right knee.

12. Having found that the appellant sometimes did not experience any pain in her right knee, the Deputy President concluded that the revised assessment of Dr Dobson was correct. Thus, the appellant had a 20% WPI on account of the right knee impairment and a further 1% WPI based on scarring to her knee. The appellant was therefore entitled to lump sum compensation of $45,551, rather than the $29,231 determined by EML.

13. The appellant unsuccessfully appealed to the Full Bench of the Workers Compensation Tribunal on questions of law.

    The legislative scheme

14. The parties agree that the relevant provisions of the legislative scheme were unchanged at all material times. The scheme is as follows:

15. Section 43 of the Act relevantly provided as follows:

    43 – Lump sum compensation

    (1)Subject to this Act, if a worker suffers a compensable injury resulting in permanent impairment as assessed in accordance with section 43A, the worker is entitled (in addition to any entitlement apart from this section) to compensation for non-economic loss by way of a lump sum.

    (2)Subject to this section, the lump sum will be an amount that represents a portion of the prescribed sum calculated in accordance with the regulations.

    (3)Regulations made for the purpose of subsection (2) must provide for compensation that at least satisfies the requirements of Schedule 3 taking into account the assessment of whole of person impairment under this Division.

    …

    (8)     For the purposes of this section, the “prescribed sum” is –

    (a)unless a regulation has been made under paragraph (b) - $400,000 (indexed); or

    (b)a greater amount prescribed by regulation for the purposes of this division.

    (9)In connection with the operation of subsection (8) –

    (a)the amount to be applied with respect to a particular injury is the amount applying under that subsection at the time of the occurrence of that injury; and

    (b)an amount prescribed by regulation under paragraph (b) of that subsection must be indexed so as to provide annual adjustments according to changes in the Consumer Price Index.

    (10)For the purposes of this section, any degree of impairment will be assessed in accordance with section 43A.

    …

    (12)In this section –

    “WorkCover Guidelines” means the guidelines published under section 43A.

16. At all relevant times s 43A of the Act provided:

    43A – Assessment of impairment

    (1)This section sets out a scheme for assessing the degree of impairment that applies to a compensable injury that results in permanent impairment.

    (2)An assessment –

    (a)     must be made in accordance with the WorkCover Guidelines; and

    (b)must be made by a legally qualified medical practitioner who holds a current accreditation issued by the Corporation for the purposes of this section.

    (3)The Minister will publish guidelines (the “WorkCover Guidelines”) for the purposes of section 43.

    …

    (8)An assessment of the degree of impairment resulting from an injury for the purposes of this Division must –

    (a)be made after the injury has stabilised; and

    (b)subject to subsection (9), be based on the worker’s current impairment as at the date of assessment, including any changes in the signs and symptoms following any medical or surgical treatment undergone by the worker in respect of the injury.

    (9)An assessment must take into account the following principles:

    (a)if a worker presents for assessment in relation to injuries which occurred on different dates, the impairments are to be assessed chronologically by date of injury;

    (b)the impairments from unrelated injuries or causes are to be disregarded in making an assessment;

    (c)(c) assessments are to comply with any other requirements specified by the WorkCover Guidelines or prescribed by the regulations.

17. A document entitled the WorkCover Guidelines for the Evaluation of Permanent Impairment (the Guidelines) was published by the Minister under s 43A(3). The Guidelines adopt and apply with certain modifications the American Medical Association Guides to the Evaluation of Permanent Impairment (5^th edn) (AMA5).

18. The Guidelines state that Table 17.35 in AMA5 is not correct and provide a substitute Table 17.35 that is to govern the assessment of the level of permanent impairment for a knee replacement. It provides as follows:

Table 17-35 Rating knee replacement results

Number of points

a. Pain
None
Mild or occasional

Stairs only
Walking and stairs

Moderate

Occasional
Continual

Severe

50
45
40
30

20
10

0

b. Range of motion
Add 1 point per 5° up to 125°

25 (maximum)

c. Stability
(maximum movement in any position)
Anterioposterior

< 5 mm
5-9 mm
> 9 mm

Mediolateral

5°
6-9°
10-14°
> 14°

Subtotal

10
5
0

15
10
5

0

Deductions (minus) d, e, f

d. Flexion contracture
5-9°
10-15°
16-20°
> 20°

2
5
10
20

e. Extension lag

< 10°

5

10-20°

10

> 20°

15

f. Alignment – valgus

5-10°

0

0-4°

3 points per degree

11-15°

3 points per degree

> 15° valgus

20

Deductions subtotal

1. Table 17.33 of AMA5 is applied by the Guidelines to assess the whole person impairment (WPI) following knee replacement surgery. The effect of Table 17.33 is as follows:

   ·Good result, 85 – 100 points – 15% WPI

   ·Fair result, 50 - 84 points – 20% WPI

   ·Poor result, less than 50 points – 30 % WPI

2. The appellant also suffered some scarring as a result of the knee replacement surgery. Table 13.1 of the Guidelines sets out the level of WPI arising from scarring. That is not an issue in this appeal.

3. Paragraph 1.22 of the Guidelines governs the timing of medical assessments. It states that:

   Assessments are only to be conducted when the assessor considers that the degree of permanent impairment of the worker is fully ascertainable. The permanent impairment will be fully ascertainable where the assessor considers the worker has attained maximum medical improvement. This is generally considered to occur when the worker’s condition has been medically stable for the previous three months and is likely to be stable for the foreseeable future, with or without further medical treatment (i.e., further recovery or deterioration is not anticipated, but can include temporary fluctuations).

4. The practical operation of the legislative scheme in relation to a knee replacement is as follows. A points rating is first allocated in accordance with Table 17.35 in the Guidelines. The points allocated in accordance with the assessment of pain, range of motion and stability are aggregated. Points are then deducted from that aggregate by reference to the assessment of flexion contracture, extension lag and alignment – valgus. The net points obtained from the assessment under Table 17.35 are then applied to the diagnosis impairment rating contained in Table 17.33 of AMA 5. Thus, for example a person whose knee replacement was given a rating of between 50 and 84 points under Table 17.35 would have that assessed as a fair result under Table 17.33. Table 17.33 specifies that a person who has had a fair result for their knee replacement is to be assessed as having 20% WPI. A person who has accrued less than 50 points under Table 17.35 will be assessed under Table 17.33 as having a poor result for their knee replacement. That will result in a WPI assessment of 30%.

   Evidence

5. It is necessary to refer in some detail to the evidence given before the Deputy President.

   The appellant’s evidence

6. The appellant made a witness statement dated 28 August 2015. This statement was received as part of her evidence in chief. She stated at paragraph [60] that “even whilst I was not working during that part of 2013, I experienced continual pain in my right knee. … the pain remained there all of the time. It wasn’t always at the same level; but it was sufficient to cause me to feel anxious and upset about my future and my ability to engage in daily activities.” It is apparent from paragraphs [58] and [59] of the appellant’s statement that she was referring to a substantial, but unspecified, period of time during 2013 when she was not working.

7. At paragraph [78] of her statement the appellant indicated that her symptoms in her right knee included “constant levels of mid-level to high-level pain and discomfort which is exacerbated by sitting or standing for moderate to long periods of time”. Her reference to constant mid to high level pain was not maintained in her oral evidence.

8. Paragraph [78] also referred to “noticeable and painful swelling, particularly after prolonged use and walking”; “limping when in a lot of right knee pain” and “inflammation and aching in my knee”.

9. At paragraph [81] the appellant stated “my right knee pain has caused me to have problems sleeping” and at paragraph [83] “my pain, discomfort and disability levels in my right knee is often far worse at the end of the day as compared to the beginning (depending on my activities) and the levels of pain, discomfort and disability caused by my right knee are often much worse at the end of the week as compared to the beginning”.

1. During her examination in chief the appellant gave the following evidence:

   Q       Can you tell us about the pain factor in relation to it?

   AThe pain factor? The cut glass feeling had definitely gone. It was much smoother when I bent my knee. That feeling of loose rubble in there is gone, but I still get the pain on both sides of the leg

   Q       So is that the right leg?

   AYes, the right leg medially and laterally, and I get this intermittent very sharp pain that’s like something is caught somewhere in there. It might be scar tissue; I don’t know, and I haven’t had it investigated, but it’s around the bottom of kneecap right there in that half circle.

   QYou just indicated the bottom of the right kneecap?

   AYes, yes.

   QNow, in relation to pain generally, were there ever times when you were not feeling pain in that right knee?

   ANo. There’s always pain there, but the very bad pain isn’t there all the time.

   QIs that the intermittent pain you were talking about?

   AYes, that’s the intermittent pain.

2. The appellant gave the following evidence about her level of pain:

   QFollowing the recuperation period after the surgery, you felt that your knee was a little unstable?

   AYes.

   QAnd by the end of the day it would feel as though it had swollen?

   AYes.

   QAnd by the end of the day it was stiff?

   AYes.

   QAnd the degree of swelling and stiffness depended a bit on what you’d done during the course of the day??

   AThat’s correct.

   Q.If you had a quiet day, the pain was very little; if you’d had a rough day, the pain was very great?

   AYes.

   QAnd there were sometimes, weren’t there, if you had a couple of decent days of quiet days in a row where there would be very little, if any pain?,

   AThere would always be some, but it was way, way down the scale.

3. The appellant was cross examined about what she had told Dr Dobson when he examined her in October 2013 and other matters. The following exchanges occurred:

   QYes. And when he asked you about the pain you had in your right knee you told him, didn’t you, that at that time it was intermittent?

   AI think I was referring to the sharp, intermittent pain I’d get; not the general ache – minimal ache that’s always there – or the escalation at the end of the day. That’s different to me.

   …

   QWell can I suggest that you told him that it was intermittent?

   AI don’t think I would have said that because I have pain all the time.

   …

   QAnd can I suggest that you reported to him that you had discomfort in your right knee?

   AYes.

   QThat that discomfort was intermittent, especially over the outside aspect of the knee?

   AI don't recall specifically that question, sorry.

   QAnd that pain would come on, particularly with twisting of the knee?

   AThe intermittent pain that I get here definitely comes on with the twisting of my knee. That’s on the medial aspect.

   QAnd that you did experience aching and soreness over the lateral aspect of the knee as well?

   AYes, as well.

   QThat the pain in your right knee was mild?

   AAt that time maybe.

   QYes, and indeed the pain in your right knee has varied over time, hasn’t it?

   AIt has varied. There’s always some, but it has varied.

   QAnd in fact it has got worse since 2013, hasn’t it?

   ANo. I think it’s been the same

   …

   QWhat I’m suggesting to you Ms Lim, is that in particular when you saw Dr Dobson in October 2013 and that when he recorded that your pain in your knee was intermittent; that was in fact the case at that time in 2013?

   AI disagree with that.

   QAnd can I suggest also that when you saw Dr Panayiagaris in November 2014, and when he recorded that the pain in your right knee was intermittent that that was in fact the case in November 2014?

   AI disagree with that.

   QYou agree though, don’t you, that the level of pain varies over time?

   AI do agree that the level of pain varies.

4. Only one question was asked of the appellant during re-examination. The exchange was as follows:

   QMs Lim, could you please explain to the tribunal, what is your interpretation of mild pain? What do you – how do you make that reference?

   AWell, I have pain every day. Some parts of my body might be excruciating one day, like my left shoulder or my hip; therefore, the pain I have in my knee might seem mild in comparison to that. So it’s there constantly. I can always feel pain in my knee but sometimes it can be overwhelmed by other pain in other parts of my body.

5. The appellant also stated that her memory of the assessment by Dr Dobson was “foggy” or “fuzzy”.

   The evidence of Dr Dobson

6. In his report to EML dated 30 October 2013 Dr Dobson stated:

   She gets intermittent pain in her right knee. She is able to walk on the treadmill up to a kilometre. She is not keen on walking on the footpath because of the fear of further fall. She can walk up and down stairs with the help of the rail. She is unable to fully bend or flex her knees. She is unable to kneel or squat down nor is she able to run.

7. Dr Dobson also stated in his report “I have determined that maximum medical improvement has been reached and that there has been no significant change over the last year or so in regard to her symptoms in both knees”.

8. Dr Dobson applied Table 17.35 of the Guidelines to rate the results of the knee replacement. He reported as follows:

   ·Pain = 45 points

   ·Range of motion 5º to 115º = 23 points

   ·Anteroposterior stability < 5mm = 10 points

   ·Mediolateral stability stable (5º) = 15 points

9. Dr Dobson also reported a flexion contracture of 5º which resulted in a deduction of 2 points. There was no extension lag. There was 5º of normal valgus alignment. These observations produced a score of 91 points. This equated to a good result for the knee replacement under Table 17.33 of the Guidelines. Thus, the appellant’s WPI was 15%. Dr Dobson also rated the scarring at 0% WPI on the basis that the scar was not very obvious, was blending well with the surrounding skin, the appellant was not conscious of it and always wears trousers. The end result was a WPI of 15%.

10. In his oral evidence Dr Dobson stated that he had written the following passage in his notes as he examined the appellant and recorded the information that she provided to him:

    Gradually improved over a period of time. Now it is intermittent pain in the right knee. Walks on a treadmill for one kilometre. Walks up and down stairs with a rail both up and down. Unable to kneel or run. Driving long distances causes pain.

11. Dr Dobson stated that he had not made a note that the appellant was suffering from serious pain but accepted that it may have been possible that she had stated this to him.

12. Dr Dobson acknowledged that his original assessment was not correct. He conceded he should have allocated a point score of 30 (mild or occasional pain – walking and stairs) rather than 45 (mild or occasional) for pain. He therefore varied the overall point score for the right knee impairment from 91 to 76 points. Thus, under Dr Dobson’s revised assessment the appellant had a WPI of 20% for the right knee impairment. Dr Dobson also conceded that her WPI for scarring should have been assessed at 1% rather than his earlier view of 0%. The outcome was that Dr Dobson assessed the appellant’s total WPI at 21% rather than 15%.

13. Dr Dobson also stated that there were several possible explanations for the differences between his observations concerning the appellant and those later made by other medical practitioners. One possibility was that there had been a deterioration in the function of the appellant’s knee. The second possibility is that there will be a difference between the range of movements recorded by different observers. Thirdly, the range of movement will vary from day to day depending on a number of factors. He particularly referred to the degree of inflammation or swelling in the knee at the time. Fourthly, an observer may have made inaccurate measurements.

    The evidence of Dr D’Onise

14. Dr D’Onise provided a report to the appellant’s solicitor dated 24 March 2015. Dr D’Onise stated that the appellant had reported to him a constant pain in her right knee which she rated from 1/10 up to 7/10 and, on average, 3/10. She had described an occasional jamming and spiking pain in the knee that was aggravated by twisting or changing direction. Dr D’Onise reported that the appellant had a flexion of 95º in her right knee and 120º in her left knee. The extension for both left and right knees was 0º. There was a 0-5º extension lag on the right and 10-15mm of mediolateral instability and no anterior posterior instability. The right knee on standing had a 7º valgus deformity.

15. Dr D’Onise later provided a revised report to the appellant’s solicitor dated 15 June 2015. He reported that under table 17.35 the appellant scored 10 points for continual moderate pain, 19 points for range of motion, 10 points for AP (ie anterior posterior) instability and 5 points for mediolateral instability. From that total of 44 points Dr D’Onise deducted 5 points for an extension lag of less than 10º. That resulted in a net total of 39 points. Under table 17.33 this equated to a “poor result” for the knee replacement surgery. Thus, in the opinion of Dr D’Onise, the appellant had a 30% WPI on account of her right knee replacement. He also allocated 2% WPI for scarring based on the appearance and location of the scar.

16. Dr D’Onise stated in his oral evidence that, in his opinion, that as the appellant had told Dr Dobson that her pain prevented her from walking more than one kilometre and she needed to use the handrail to walk up and down stairs she should have been given a rating of 30 points under Table 17.35 for pain rather than the 45 points assigned by Dr Dobson. The latter points rating applies to mild or occasional pain. Thus, in the view of Dr D’Onise, Dr Dobson should have arrived at a 20% WPI for the knee impairment rather than 15%. As I have already noted, Dr Dobson conceded that point in his oral evidence.

17. Dr D’Onise stated that he interpreted Table 17.35 to require an allocation of 20 points for both occasional moderate pain and intermittent moderate pain. He also stated that mild or occasional pain is intermittent pain that has no impact on function at all.

18. Dr D’Onise conceded that because the appellant normally wears trousers, the assessment for scarring should be reduced from 2% to 1% as the scarring to her knee was not visible in ordinary clothing.

19. Dr D’Onise also stated in cross-examination that there had been a change in the appellant’s impairment ratings between October 2013 when she saw Dr Dobson and when he saw her in March 2015. Some aspects of the assessment had improved but others had become worse. In re-examination Dr D’Onise accepted that the variations in points ratings may be due to a change in a person’s condition on a day to day basis depending on what the person had been doing and the quality of sleep that they had the night before.

    The evidence of Dr Suyapto

20. Dr Dion Suyapto provided a report dated 24 March 2015 to the appellant’s solicitor but did not, at that time, assess the appellant’s WPI. In a further report to the appellant’s solicitor dated 3 June 2015, Dr Suyapto reported that the range of movement in the appellant’s right knee was 90º flexion, 5º extension and 8º valgus. The AP stability was 5mm and the mediolateral stability 10mm. There was no extension lag.

21. Dr Suyapto applied Table 17.35 with the following results. Based on the appellant’s report of continual pain he assigned 10 points for pain. He assigned 18 points for the range of motion of 90º and 10 points for anteroposterior stability of less than 5mm. He also assigned 5 points for mediolateral stability of 10º. He then deducted 2 points for flexure contraction of 5º and a further 5 points for an extension lag of less than 10º. That resulted in a points score of 41. Application of Table 17.33 indicated that the right knee replacement had had a poor result which resulted in a WPI of 30%. He also allocated 2% WPI for scarring. Application of the combined values chart resulted in an overall assessment by Dr Suyapto of 31% WPI.

22. Dr Suyapto stated that the difference between his findings and those made earlier by Dr Dobson might possibly be explained by deterioration of the appellant’s condition in the intervening period. However, he had not been told by the appellant that her condition had deteriorated. He therefore suspected that the difference in findings may be explained by the pain experienced by the appellant at the time of the examination. He also stated that different examiners can arrive at different results.

23. Dr Suyapto disagreed with Dr Dobson’s conclusion that the knee replacement had caused a 15% WPI. Because Dr Dobson had been told that the appellant had difficulty in walking up and down stairs, he should have assigned 30 points under Table 17.35 so as to produce a 20% WPI under Table 17.33. As already noted, Dr Dobson conceded that he had made an error and should have assessed the WPI at 20%.

24. In cross-examination Dr Suyapto conceded that because the assignment of points was based on objective clinical findings based on stability of the flexion of the knee joint the fact that a patient had not reported deterioration would not necessarily exclude the possibility that there had been deterioration.

    The Deputy President’s reasons

25. The Deputy President stated that Dr Dobson, Dr D’Onise and Dr Suyapto were each impressive witnesses. The findings made by the three medical assessors on examination of the appellant and the measurements that they had made were not challenged in cross examination. Neither Dr D’Onise nor Dr Suyapto had questioned the measurements made by Dr Dobson.

26. His Honour found that the variation in the medical assessors’ measurements and findings had reflected how the appellant had felt on the day she was examined. That finding was based on the evidence given by each of the three assessors to the effect that measurements of mobility and instability may vary depending upon how the person felt on the day.

27. The Deputy President stated that he preferred the interpretation of Dr Dobson in connection with a potential points deduction for extension lag. His Honour stated that it did not make any sense to make a deduction in respect of something that did not exist. Thus, if there was no extension lag, no points should be deducted. That finding has not been challenged on this appeal.

28. The Deputy President found that the appellant had told Dr Dobson that the pain in her right knee was intermittent. There was no reason to find that she was not being truthful when she said this to him. His Honour found that although the appellant had stated in evidence that some pain was always present in her right knee, she must be mistaken about that in view of his finding as to what she had told Dr Dobson.

29. The Deputy President considered the possibility that the different observations made by Dr D’Onise and Dr Suyapto had arisen because the functioning of the appellant’s right knee had deteriorated after she saw Dr Dobson. His Honour found that if that was the explanation he would have expected the appellant to have given such a history to Dr D’Onise and Dr Suyapto and also to have mentioned it in her evidence. Because she had not done so, he found that there had not been a deterioration in the appellant’s right knee after she saw Dr Dobson.

30. His Honour also noted that the appellant’s evidence about pain was that she had good days and bad days and good periods of time and bad periods of time. He concluded that the more adverse pain experience that the appellant had reported to Dr D’Onise and Dr Suyapto and also to the Tribunal reflected how she was feeling at the time as opposed to how she felt at all relevant times. His Honour found that the appellant sometimes did not experience any pain in her right knee.

31. For this reason, the Deputy President preferred the revised assessment of the level of pain made by Dr Dobson to that of Dr D’Onise and also that of Dr Suyapto. His Honour then considered what measurements of the limitation on the range of motion and the degree of instability were to be used for the purposes of an assessment under s 43 of the Act.

32. His Honour noted that the focus of an award of compensation is directed towards permanent impairment. An impairment that is only transitory is not permanent. The fact that the level of limitation in the range of motion and the degree of instability may be greater on what one day than another does not mean that the greater limitation and degree of instability are permanent. What is permanent is the level in the limitation in the range of motion and the degree of instability that is always present. His Honour therefore concluded that the assessment should be based on the most positive measurements. For that reason His Honour found that the assessment must be based upon the point scores assigned by Dr Dobson. He had given an overall point score of 76. Thus the outcome of the appellant’s knee replacement was within the fair result range and her WPI was 20%.

33. The Deputy President set aside the determination made by EML on 9 December 2013 and substituted an assessment based on a WPI of 21%, i.e. 20% for the right knee impairment and 1% for scarring. That resulted in lump sum compensation of $45,551, being $16,320 greater than the award determined by EML.

    The appeal to the Full Bench

34. The appellant’s primary contention in her appeal to the Full Bench of the Workers Compensation Tribunal was that there was no evidence to support the finding by the Deputy President that her pain was intermittent and that she had pain-free periods. The questions of law were said to arise in four different ways.

35. First, there was said to be no evidence for the finding that the appellant did not suffer continual right knee pain in 2015. Secondly, that if there was such evidence, there had been a denial of procedural fairness because it was not put to her at the hearing before the Deputy President that she did not suffer from continual right knee pain in 2015. Thirdly, it was contended that the Deputy President had not given adequate reasons for his decision to reject the explanation by the appellant concerning the remarks she had made to Dr Dobson about intermittent pain. There was also said to be insufficient evidence to support his Honour’s conclusion that she was mistaken about that matter. Fourthly, it was contended that there was an error in the application by the Deputy President of s 43A(8)(b) of the Act and the use by his Honour of a “positive measurements test”.

36. The Full Bench rejected each of the four grounds of appeal. The Full Bench found that there was more than adequate material upon which the Deputy President could make the findings that the appellant suffered from intermittent pain in her right knee rather than continual pain. The Full Bench also found that the suggestion that the appellant’s pain level was only intermittent had been clearly put to her in examination at the trial. She had been given adequate opportunity to present her case. His Honour’s reasons were adequate and had fully disclosed his path of thinking.

37. The Full Bench observed that the assessment provided for in s 43 and s 43A is with respect to a permanent impairment. That must be distinguished from an impairment that is transitory. The assessment involves matters of fact and degree. If the range of movement and degree of instability varies within moderate limits, the baseline must be assessed rather than measurements taken at moments of acute presentation. The Deputy President did not err in the approach he had taken.

38. The Full Bench also held that the appellant’s contention that there had been an error because the assessment had been notionally attributed to 2013 instead of 2015 misdescribed the process of reasoning employed by the Deputy President. His Honour had been required to evaluate whether the appellant’s pain was continual or intermittent. That was the case in 2015. On the case presented by the appellant, there had been no change between 2013 and 2015. However, her contention of constant pain was in dispute. That matter was resolved against her. The Deputy President did not depart from the requirements of s 43A(8)(b).

    The appellant’s submissions on this appeal

1. The appellant’s first ground of appeal is that the Deputy President provided reasons for his decision that are inadequate at law in three separate respects.[1] The inadequacies are said to be:

   1The reasons of the Deputy President do not disclose whether his Honour made a finding as to whether the appellant’s knee pain was mild or moderate and nor did his Honour disclose the basis for any such finding;

   2It is not possible from reading the reasons published by the Deputy President to determine that the appellant had given evidence at trial about what she described as “intermittent pain” and that this was accepted as a possibility by Dr Dobson. On that basis the appellant submits that the reasons do not disclose why the evidence about intermittent pain was rejected, particularly in the absence of any general adverse finding about the credit of the appellant; and

   3The reasons do not address the possibility that the appellant was mistaken in providing her history to Dr Dobson or mistaken in her evidence that her condition had not deteriorated between 2013 and 2015. Furthermore, the relative likelihood of either of those mistakes was not considered against the likelihood that she was mistaken in her evidence of experiencing continual pain in 2015.

   [1]    Papps v Police (2000) 77 SASR 210; El-Masri v Molloy [2015] SASCFC 63.

2. The appellant also contends that the reasons of the Full Bench are inadequate in so far as they considered the adequacy of the reasons of the Deputy President.

3. In relation to the second question of law the appellant contends that she was not given an opportunity at trial to comment on the proposition that she was honest, albeit mistaken, in testifying about a matter that was fresh in her memory and peculiar to her, i.e. that her knee pain was constant. Thus, she contends that she was denied procedural fairness.

4. The third question of law is the contention that both the Deputy President and the Full Bench misconstrued Table 17.35 of the Guidelines and also s 43A(8)(b) of the Act.

   Inadequate reasons

5. The appellant points to the specific requirement in Table 17.35 that pain be characterised as none, mild or occasional, moderate or severe. The Table also expressly contemplates that moderate pain can be occasional or continual.

6. The appellant complains that the Deputy President focussed on the issue of occasional or intermittent pain as compared to continual pain. His Honour did not indicate whether he assessed the appellant’s pain as mild or moderate or why he did so. The appellant also submits that paragraph [15] of his Honour’s reasons suggest that he may not have appreciated that there was a specific category with its own points rating for moderate occasional pain.

7. The appellant contends that her evidence referred to continual pain at some level and also sharp intermittent pain. She asserts that this was the level of pain she was experiencing when she provided her history to Dr Dobson and was still experiencing in 2015. Dr Dobson had acknowledged that it was possible that this information was correct. The appellant complains that the Deputy President failed to identify or to address this evidence in any way. It appears from the reasons that no such evidence had been given. There was no adverse credit finding. Thus, the rejection of this evidence is unexplained.

8. The appellant further contends that the rejection of her evidence about her level of pain was fundamental to the Deputy President’s findings. Accordingly, His Honour’s reasons for the rejection of that evidence were of fundamental importance in informing the appellant as to why he concluded that her evidence referring to continual pain in 2015 was mistaken. The appellant also submits that the making of such a finding was of fundamental importance in providing a basis to prefer the evidence of Dr Dobson about measurement of the range of motion in her knee to that of Dr D’Onise and Dr Suyapto. The latter two practitioners had taken a history of continual pain. According to the appellant’s submission, there is a direct correlation between pain levels and range of motion. That is, because pain can and usually does limit movement.

9. In the submission of the appellant the Deputy President had relied on two conclusions as the basis for the rejection of the appellant’s evidence that she suffered continual pain in 2015 in circumstances where he had not made an adverse credit finding. The basis for the rejection was, first, that the appellant had been mistaken because she had intermittent pain in 2013 when she saw Dr Dobson and, secondly, her condition had not deteriorated in the meantime because she had not said that there had been a deterioration.

10. The appellant also submits that the Deputy President should have considered the relative likelihood of three possible ways in which the appellant may have been mistaken. Those three ways were that, first, she was mistaken in the history she gave to Dr Dobson (or in relaying that history), secondly, she was mistaken in her assessment that her condition had not deteriorated between 2013 and 2015 or, thirdly, she was mistaken in her evidence that she had continual pain in her knee in 2015.

11. A further complaint by the appellant is that the possibility that she was mistaken in the history she gave to Dr Dobson had not been addressed by the Deputy President. His Honour’s finding was that the appellant was truthful when she saw Dr Dobson.

12. The appellant also submits that the possibility that she was mistaken in her assessment that her condition had not deteriorated between 2013 and 2015 had not been considered by the Deputy President. She contends that it is not an answer to that submission to say that if her condition had deteriorated the appellant would have mentioned it in her evidence or in the history that she provided to Dr D’Onise and Dr Suyapto. In fact, the appellant contends that she had described continual pain. There was also objective evidence provided by the measurements undertaken by Dr D’Onise and Dr Suyapto in 2015 which established the reduced range of movement in her knee compared to the measurement taken in 2013. That reduced range of motion was consistent with a deterioration in her condition over time.

13. In the submission of the appellant the Deputy President only considered the possibility that the appellant was mistaken in her evidence that she had continual pain in her knee in 2013. His Honour failed to consider the relative likelihood of the two other possible mistakes. The failure to consider the relative likelihood of the other two possible mistakes does not have the effect of making it likely that she was mistaken about continual pain in 2015. In the appellant’s submission the matter was left unexplained by the Deputy President.

14. The appellant also complains that the Full Bench had failed to provide a reason for rejecting the appellant’s submission that the reasons of the Deputy President were inadequate. Their Honours had simply stated that the reasons were adequate without indicating why. The Full Bench had failed to consider whether the Deputy President should have dealt with the evidence of the appellant about intermittent pain and the basis for the rejection of that evidence (if in fact it was rejected).

15. The appellant further complains that there was no analysis by the Full Bench as to whether the Deputy President had, or should have, dealt with the alternative possible mistakes and the likelihood of the other mistakes. The appellant submits that while the reasons of the Full Bench are inadequate, the miscarriage of justice arises from the inadequacy of the reasons of the Deputy President which underlay the Full Bench decision.

    The respondent’s submissions

16. The respondent submits that both parties had conducted the trial on the basis that the possible deterioration of the appellant’s knee after the assessment by Dr Dobson was relevant to the exercise of the discretion to grant an extension of time. The appellant had conducted her case on the basis that her condition had not deteriorated. She gave no evidence about deterioration and in fact had given evidence that her pain had been the same since she saw Dr Dobson. Her submission that there had been no deterioration was supported by the expert evidence that she called indicating that the differences in observations by doctors could be explained by fluctuations in symptoms rather than deterioration. That evidence was accepted. Its acceptance attracted the risk of a finding that the appellant’s pain was intermittent when she saw Dr Dobson and when she saw another doctor in late 2014.

    Consideration

17. Before considering the three grounds of appeal I will make some observations about the operation of the points system under Table 17.35 and the effect of the allocated points on the assessment of WPI.

    Operation of the points system

18. The underlying issue in this appeal is whether the appellant’s WPI arising from her right knee impairment was properly assessed at 20% WPI or 30% WPI. The Deputy President adopted Dr Dobson’s assessment of 76 points and thus a WPI of 20%. In order to be assessed at 30% WPI the appellant needed to accrue less than 50 points under Table 17.35.

19. In that context it is appropriate to summarise the points rating applied to the appellant by the three assessors under Table 17.35.  As there is no challenge in this appeal to the finding by the Deputy President that points should not be deducted for extension lag, that measurement has been excluded from the summary.

Dr Dobson (as modified upon giving evidence)
Pain (mild or occasional – walking on stairs)	30 points
Range of motion (115°)	23 points
Anterioposterior stability (<5 mm)	10 points
Mediolateral stability (5°)	15 points
Flexion contracture (5 – 9°)	-2 points
Aggregate	76 points
Dr D’Onise
Pain (continual moderate)	10 points
Range of motion (95°)	19 points
Anterioposterior stability (nil)	nil points
Mediolateral stability (10-15°)	5 points
Flexion contracture (5 – 9°)	-2 points
Aggregate	32 points
Dr Suyapto
Pain (continual moderate)	10 points
Range of motion (90°)	18 points
Anterioposterior stability (<5mm)	10 points
Mediolateral stability (10°)	5 points
Flexion contracture (5°)	-2 points
Aggregate	41 points

1. The variation in points rating caused by differences in the findings made about mediolateral and anterioposterior stability, and to a lesser extent range of motion, must be considered in light of the evidence given by all three medical assessors that these objective measurements may vary depending upon how the person felt on the day of the examination. The rating given for pain is not based upon the situation on the day of examination but rather the description given by the person about their overall level of pain and the assessor’s interpretation of that information.

2. The significance of the allocation of points for the assessment of pain is illustrated by the following examples. If the pain rating of 30 points ultimately adopted by Dr Dobson were to replace the 10 points allocated by each of Dr D’Onise and Dr Suyapto, their aggregate points rating would respectively be 52 points and 61 points. On the other hand, if the rating of 10 points for pain allocated by both Dr D’Onise and Dr Suyapto were to be combined with the rating for each of the several objective measurements given by Dr Dobson, the result would be an allocation of 56 points.[2] 

   [2]    There would be 10 points for pain, 23 points for range of motion, 10 points in respect of anterioposterior stability and 15 points for mediolateral stability with 2 points being deducted for flexion contracture.

3. The result is that the appellant could only achieve a rating below 50 points and thus a 30% WPI assessment if the Deputy President were to be found to have erred by preferring the evidence of Dr Dobson to that of the other two assessors in respect of both the assessment of pain and the objective measurements.

   Ground 1 - inadequate reasons

4. The principles to be applied when determining whether or not a judge has provided adequate reasons were summarised by Kirby P (as his Honour then was) in Soulemezis v Dudley (Holdings) Pty Ltd as follows:[3]

   This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge’s conclusion. But the judicial obligation to give reasons and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusion reached concerning disputed factual questions and to list the findings on the principle contested issue. Only if this is done can this court to discharge its functions, if an appeal is brought to it.

   [3] (1987) 10 NSWLR 247 at 259.

5. In RESI Corporation v Munzer, Lovell J (with whom Sulan and Stanley JJ agreed) provided a more comprehensive statement of the relevant principles.[4] His Honour stated:

   [4] [2016] SASCFC 15.

   Heydon J in AK v Western Australia stated the reasons why there is an obligation on Judges to give reasons for their decisions. First, he said, there was an obligation to give reasons as it promotes good decision making, secondly, that general acceptability of judicial decisions was promoted by the obligation to explain them and finally, that it was consistent with the idea of democratic institutional responsibility to the public that those who are trusted with the power to make decisions, affecting the lives and property of their fellow citizens, should be required to give an account of their reasoning by which they came to that decision.

   Thus the duty to give reasons is a necessary incident of the judicial process. Failure to provide sufficient or adequate reasons can promote a sense of grievance and may deny the fact and the appearance of justice having been done. Failure to give adequate reasons is an error of law.

   Of more recent times there have been many decisions on the question of the adequacy of judicial reasons. Many cases turn upon the facts in issue in the particular case. However, a number of general principles relating to the duty to give adequate or proper reasons may be extracted from the cases:

   1.      “The extent and content of reasons will depend upon the particular case under consideration and the matters in issue”. While a judge is not obliged to spell out every detail of the process of reasoning to a finding it is essential to expose the reasons for resolving a point critical to the contest between the parties.

   2.A court when considering the decision under appeal should not be left to speculate from collateral observations as to the basis of a particular finding.

   3.A trial judge has a duty to refer to material evidence and make findings about material issues in the case. It is not appropriate for a trial judge merely to set out the evidence adduced by one side, then the evidence adduced by another and assert that having seen and heard the witnesses he or she prefers or believes the evidence of one and not the other. In other words, a bald statement of an ultimate conclusion may not be sufficient.  A trial judge is required to engage with the issues canvassed and to explain why one expert is accepted over the other.

   4.It will ordinarily be sufficient if by his or her reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he or her has acted.

   5.Reasons for decision are to be read fairly and in the context of the manner in which the trial was conducted. Reasons may appear by necessary inference from what is stated expressly.

   6.It is not the function of an appellate court to set standards as to the optimal, or even desirable, level of detail required to be revealed in reasons for judgment. The function of the appellate court is to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of the judicial power.

   (footnotes omitted)

6. An essential element of the reasoning of the Deputy President was his finding that the appellant’s condition had not deteriorated between 2013 and 2015. That issue was of central importance in determining whether or not an extension of time should be granted.[5] The appellant’s counsel[6] contended in his closing submissions before the Deputy President that there had been no deterioration in her condition. That submission was entirely consistent with the evidence given by the appellant. When it was suggested to the appellant in cross examination that her level of pain had got worse since 2013 she specifically stated: “No. I think it’s been the same.”

   [5]    Carmello Baldacchino v Workers Rehabilitation and Compensation Corporation (Monier Roofing Ltd) [1995] SAWCAT 3; Diana (nee Apolloni) v Coles Group Limited [2008] SAWCT 33.

   [6]    Not the practitioner who appeared on this appeal.

7. The evidence of all three medical assessors was that the differences in their observations could be explained by how the appellant felt on the day.

8. I reject the appellant’s submission that the Deputy President erred by failing to consider whether she was mistaken in her view that her condition had not deteriorated since 2013. The appellant’s specific evidence that there had been no deterioration, combined with the evidence of all three assessors about fluctuations on the day, provided a sound evidentiary basis for the Deputy President to accept the submission of the appellant’s counsel that there had been no deterioration since 2013. His Honour’s reasons for finding that there had been no deterioration were clearly stated.

9. It is incongruous that the appellant challenges on appeal the evidence she gave at first instance that there had been no change in her condition over the relevant period. In those circumstances there is no basis for this Court to find that the Deputy President made an error of law by not considering whether or not the appellant’s own evidence about that issue was mistaken.

10. The Deputy President’s reasons for preferring the assessment of Dr Dobson to those made by Dr D’Onise and Dr Suyatpo may be summarised as follows:

    ·Each doctor was an impressive witness and their measurements were not challenged.

    ·Each of the doctors stated that the relevant measurements can vary depending upon how the person feels on the day.

    ·The condition of the appellant’s right knee had not deteriorated over the relevant period.

    ·The appellant’s evidence was that the level of pain in her right knee and the degree of swelling and stiffness varied depending upon what she had been doing during the day. She had good days and bad days and good periods of time and bad periods of time.

    ·It was likely that the variations in the doctors’ reports reflected how she felt on the day.

    ·The report of Dr Dobson was generally consistent with the evidence of the appellant. Dr Dobson had correctly reported that the appellant had told him that her right knee pain was intermittent.

    ·It was likely that sometimes the appellant did not experience any pain in her right knee. Her contrary evidence was mistaken.

    ·Because of those last two points, the assessment of Dr Dobson was correct.

11. I consider that the reasoning of the Deputy President satisfies each of the requirements referred to in RESI Corporation v Munzer. His Honour explained his reasoning process and indicated why he considered the evidence of Dr Dobson to be correct. His Honour also met the obligation referred to by Kirby P in Soulemezis v Dudley (Holdings) Pty Ltd to state generally and briefly his reasons for the findings made on disputed questions of fact.

12. I have given careful thought to the complaint by the appellant that the Deputy President had failed to address in his reasons her evidence that she always had some pain, albeit that it was “way, way down the scale” or “mild” or “1/10”.  In my view, his Honour did address that point by finding that Dr Dobson had correctly reported that the appellant had described her pain as intermittent. Moreover, the evidence to which I have referred was plainly inconsistent with a rating of continual moderate pain as assessed by Dr D’Onise and Dr Suyatpo. 

1. I would dismiss ground 1.

   Ground 2 - denial of procedural fairness

2. The appellant contends that she was denied procedural fairness by not being given an opportunity to comment on the proposition that she was honest but mistaken in testifying that her pain was constant.

3. It is clear that the appellant must always have been aware of the central issue that was in dispute, i.e. whether the assessment of Dr Dobson should be preferred to those of Dr D’Onise and Dr Suyapto. The passages of transcript set out at paragraph [28]-[30] above show that the appellant was asked several questions about whether her pain was varied or intermittent or, alternatively, constant. She was also specifically asked and denied that she would have told Dr Dobson that her pain was intermittent (albeit that her memory of her assessment by Dr Dobson was “foggy”).

4. The particular issue before the Deputy President was whether he preferred the evidence of the appellant or that of Dr Dobson on the question of intermittency (or variability). That required him to carefully consider the evidence and come to a conclusion. The fact that the Deputy President did not inform the appellant of his tentative view that she was mistaken in her evidence before he reached that conclusion did not give rise to a denial of procedural fairness.[7]

   [7] Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594, French CJ and Kiefel J at [19]; Hoffman La Roche v Secretary for Trade and Industry [1975] AC 295 per Lord Diplock at 368.

5. I am also satisfied that the rule in Browne v Dunn was not breached.[8] As I have previously said, the appellant must always have been aware that the issue in dispute was whether the assessment of Dr Dobson should be preferred to those made by Dr D’Onise and Dr Suyapto. She was examined and cross-examined about the key difference between the assessments, i.e. whether her pain was continual or not. Any possible doubt in her mind as to what the issues were would thereby have been removed.[9] There was no denial of procedural fairness.

   [8] (1893) 6 R 67.

   [9] Thomas v Van Den Yssel (1976) 14 SASR 205.

6. I would dismiss ground 2.

   Ground 3 - error in construction of Table 17.35 and s 43A(8)(b)

7. The appellant has suggested that the Deputy President may have overlooked the possibility that she was suffering from moderate occasional pain. That level of pain attracts 20 points under table 17.35. The basis for that suggestion is that his Honour referred in paragraph [15] of his reasons to the points ratings given to mild or occasional pain and for continual pain but did not specifically refer to moderate occasional pain.

8. The respondent has questioned whether this suggestion is within the scope of the permission to appeal. However, I consider it to be clearly within the scope of ground 3, i.e. that the Deputy President and the Full Bench erred in the construction of Table 17.35.

9. If the appellant did suffer from moderate occasional pain (which attracts 20 points under Table 17.35) that would only assist her to remain below the 50 point threshold if the measurements taken by Dr D’Onise about range of motion and stability were to be preferred to those of both Dr Dobson and Dr Suyapto.  If the report of Dr D’Onise were to be modified by allocating 20 points for moderate occasional pain that would result in an aggregate assessment of 42 points. If the same alteration were to be made to the conclusions reached by Dr Dobson and Dr Suyapto, it would result in an allocation of 66 points and 51 points respectively.

10. I do not consider that paragraph [15] of the Deputy President’s reasons discloses any error. His Honour was simply giving a general description of the terms of Table 17.35. He was not purporting to state its provisions comprehensively. Furthermore, the two competing positions referred to in the reports of the medical assessors were that the appellant suffered either from mild or occasional pain or, alternatively, continual pain. None of the three doctors considered that she suffered from moderate occasional pain.

11. Section 43A(8) of the Act required that the assessment of impairment must be made after the injury has stabilised and, subject to subsection (9), be based on the worker’s current impairment as at the date of assessment. Section 43A(9) required the assessment to comply with any other requirements specified in the Guidelines. In substance, paragraph 1.22 of the Guidelines directed that assessments are only to be conducted when the assessor considers maximum medical improvement has been attained. This will generally be when the condition has been medically stable for the previous three months and is likely to be stable for the foreseeable future, with or without further medical treatment, i.e., further recovery or deterioration is not anticipated but there may be temporary fluctuations. Dr Dobson reported that maximum medical improvement had been attained when he examined the appellant. Both Dr D’Onise and Dr Suyapto stated that the appellant’s condition was stable in response to the question they were asked about maximum medical improvement.

12. The effect of the application made by the appellant under section 90 of the Act was that the Tribunal was required to determine a notice of dispute about the determination made by EML in December 2013 that was based upon the assessment of Dr Dobson. Section 94C(1) required the Tribunal to decide the dispute without regard to the determination made by EML. Thus, the Tribunal was effectively considering a de novo appeal.

13. Due to the requirement in section 43A(8) that an assessment must be based upon the current impairment at the date of assessment there was a potential difficulty as the assessments before the Tribunal had occurred in 2013 and on different dates in 2015. The potential timing difficulty was resolved by the appellant’s clear evidence that her condition had not deteriorated between 2013 and 2015. Her evidence was consistent with Dr Dobson’s report that maximum medical improvement had been attained in December 2013 and also not inconsistent with the reports of both Dr D’Onise and Dr Suyapto that her condition was stable in 2015. The appellant’s evidence that her pain level fluctuated depending upon what she had been doing was entirely consistent with the evidence from all three medical assessors that the results of an examination may vary depending upon how the person feels on the day.

14. The Deputy President held that in circumstances where the restrictions on the range of motion and the degree of instability are greater on one day than another, the permanent impairment is to be assessed by reference to the restrictions upon the range of motion and the degree of instability that are always present.

15. The Full Bench held that when assessing impairment under section 43 and section 43A a permanent impairment must be distinguished from one that it is transitory. An assessment involves consideration of matters of fact and degree. In cases where the range of movement or degree of instability varies within moderate limits, it is necessary to assess the baseline level and not measurements taken at moments of acute presentation.

16. While the Deputy President and the Full Bench adopted a broadly similar approach to the assessment of impairment in cases where symptoms fluctuate, I consider the additional observations made by the Full Bench about variations within moderate limits and matters of fact and degree were necessary and important.

17. The need to have regard to the matters identified by the Full Bench is apparent from the example of a case where an injured worker has occasional periods where symptoms are minimal but suffers severe symptoms for most of the time. In such a case it would be harsh and unjust to assess the level of impairment by reference only to the minimal symptoms that are always present. That approach is very likely to underestimate significantly the level of impairment.

18. I consider that the Full Bench was correct to observe that it is necessary in cases where symptoms fluctuate within moderate limits to identify the baseline level of impairment and to distinguish that from the impairment shown at times of acute presentation. The task of identifying the baseline level of impairment may require the weighing of matters of fact and degree so as to determine whether a variation in symptoms constitutes a fluctuation within moderate limits. 

19. The operation of that general principle is subject to the requirement in the legislative scheme that the outcome of knee replacement surgery must be assessed against Table 17.35. In a case where the evidence refers to fluctuating levels of pain the task of the medical assessor, and the Tribunal where there is a dispute, is to decide how that evidence is to be rated under Table 17.35.  That was the issue that the Deputy President was required to decide. For the reasons that I have already set out his Honour preferred the evidence of Dr Dobson on that question. That conclusion was open to his Honour. Neither the Deputy President nor the Full Bench erred in their construction of Table 17.35.

20. I would dismiss ground 3.

    Conclusion

21. I would dismiss the appeal on each grounds 1, 2 and 3. I would hear the parties as to costs.

22. LOVELL AND HINTON JJ:        We have had the benefit of reading the judgment of Parker J. We agree with his Honour that the appeal should be dismissed for the reasons he gives.

23. With respect to the first ground of appeal, we add the following. The complaint as to the adequacy of reasons must be considered in the light of the forensic contest. Relevantly the subject of that contest was the condition of the appellant’s right knee as at the time of her consultation with Dr Dobson on 22 October 2013. Here it is to be recalled that the appellant contended that the pain in her right knee had not changed since she was assessed by Dr Dobson.

24. The appellant’s case was that at the time of the consultation she was never pain free; the pain fluctuated but never entirely went away. The respondent argued that the appellant had indicated to Dr Dobson that the pain was “intermittent” in the sense that she had days when she suffered no pain in the knee at all.

25. Unfortunately the expression “intermittent” was not used consistently during the course of the trial. The appellant used the expression “intermittent” during the course of her evidence, to describe a variation in pain levels. She said there was always pain but some days it was worse than others.

26. In cross-examination the appellant did not deny that she may have referred to suffering intermittent pain in the course of participating in the assessment undertaken by Dr Dobson. However, she also stated that she did not think that she said her pain was intermittent, because she suffered pain all the time. She admitted her memory was foggy.

27. We do not suggest that the appellant was inconsistent in her evidence. It is however unfortunate that the expression “intermittent” was not used consistently.

28. Dr Dobson’s original notes from which he produced his report were tendered in evidence. Those notes were made during the course of his consultation with the appellant. They were not a verbatim account.

29. The word “intermittent” appears in the original hand written notes of Dr Dobson and is repeated by him in his report of 30 October 2013. It was not established definitively in the evidence whether it was a word specifically used by the appellant during the course of her consultation or whether it was a conclusion reached by Dr Dobson on the history he obtained from the appellant.

30. In his evidence Dr Dobson indicated that the word “intermittent” reflected the history that he was given. He said that if he was told that the pain was constant he would have noted “constant pain”.

31. Despite the confusion over the use of the word “intermittent”, when cross‑examined about the condition of her knee at the time of the consultation the appellant clearly denied as a fact that her pain was “intermittent” in the sense meant and alleged by the respondent.

32. Counsel for the appellant in the Tribunal did not challenge the accuracy of Dr Dobson’s note. Rather, counsel attempted to obtain a concession from Dr Dobson that despite the accuracy of his note it did not reflect the totality of the pain suffered. Unfortunately the question of whether the appellant could have been suffering a constant level of underlying pain at the time of the assessment, and, if so, how that would affect the doctor’s assessment, was not clearly put.

33. In cross-examination of Dr Dobson the following exchange occurred:

    Q:Did she talk to you about for example, prior to having the knee surgery that she had a feeling in her knee of there like being crushed glass in the kneecap and that after the surgery that that had gone; did she tell you about that?

    A:I can’t remember specifically about that now no.

    Q:No. Did she tell you about a new pain that she would feel after the surgery, that is a new pain compared to what she was feeling before the surgery which was a pain that was intermittent but it was over and above the constant pain that she had?

    A:Well, she told me about intermittent pain yes and it was over and above – well it must have been over and above because that was what she concentrated on.

    Q:Yes, and she told you it was quite serious pain would that be right?

    A:Look, I didn’t note that it was serious pain, usually I would say that or note that but I haven’t. It’s possible but I haven’t noted it.

    Q:But certainly in relation to a topic of a different type of pain she had before the surgery that pain was intermittent?

    A:Yes.

    Q:Over and above the pain she normally had?

    A:Well again I haven’t noted that in my notes so I can’t really comment on that but it’s a possibility.

34. During the course of the questions reproduced above it can be seen that counsel introduced the premise that the appellant was suffering intermittent pain before the surgery. It can be seen that the use of the word “intermittent”, as used by counsel, has caused confusion. Dr Dobson’s answers reflect that confusion.

35. However it can be accepted that the final answer in the extract reproduced above does achieve a concession that it was a possibility that the appellant suffered a serious pain “over and above the pain she normally had”. The concession by Dr Dobson that it was a possibility was, in context, no more than an acknowledgment that his note taking and memory were not perfect.

36. Against that background it can be seen that with respect to what was said during the course of the assessment conducted by Dr Dobson, the Deputy President preferred the evidence of Dr Dobson. Whether the appellant used the expression “intermittent” or whether it was a conclusion reached by Dr Dobson on the history given does not matter. In his reasons the Deputy President said:[10]

    I have no reason to doubt the history that Dr Dobson obtained. It is generally consistent with Mrs Brennan-Lim’s evidence. I find that Mrs Brennan-Lim reported to him that her pain experiences in her right knee were intermittent. There is no reason to assume that Mrs Brennan-Lim was not being truthful when she said this to him.

    …

    Although Mrs Brennan-Lim she said in her evidence that some pain was always present in her right knee, in light of my finding of what she said to Dr Dobson, I think she must be mistaken about that. Of course, just because when she saw Dr Dobson she was only experiencing intermittent pain does not mean that by the time she saw Dr D’Onise and Dr Suyapto and made her statement to and gave evidence before the Tribunal that her pain in her right knee could not have become continuous. But that would be more likely if there had been a deterioration in the functioning of her right knee. For the reasons set out above I do not make that finding. The effect of Mrs Brennan-Lim’s evidence is that in respect of pain she has good days and bad days and good periods of time and bad periods of time. This leads me to conclude that the more adverse pain experience that Mrs Brennan-Lim reported to Dr D’Onise and Dr Suyapto and to the Tribunal reflected how she was feeling at the time as opposed to how she has felt at all relevant times. I think it is likely that sometimes she does not experience any pain in her right knee and I so find.

    Having found that sometimes Mrs Brennan-Lim does not experience any pain in her right knee I conclude that Dr Dobson’s revised assessment of the level pain is correct and for the purpose of the Guidelines it attracts a rating of 30 points.

    [10]   Brennan-Lim v Return to Work SA (De Poi Consulting Pty Ltd) [2015] SAWCT 54 at [73], [81]-[82].

37. In these passages, properly understood, the Deputy President deals with the possibility that the appellant did tell Dr Dobson that she had a level of constant underlying pain and had always had a constant level of pain and rejects it.

38. The Deputy President’s starting point is the observation that there is no reason to reject Dr Dobson’s note. As indicated, counsel for the appellant in the Tribunal did not attack the accuracy of the notes as far as they went. Accepting the accuracy of the notes meant accepting that the appellant had either used the word “intermittent” in describing her pain, or, referred to her pain in such a way as to answer the description chosen by Dr Dobson of it as being intermittent. Either way the note reflects a history given contrary to the assertion of constant pain.

39. The Deputy President then reasons that the likelihood of this being the extent of her previous and current pain experience is increased by her subsequent description to Drs D’Onise and Suryapto of her pain. When that experience is taken with the absence of any mention in Dr Dobson’s contemporaneous note of constant underlying pain and what she must be taken to have said to Dr Dobson, namely, the report of her pain being, or in some respect answering the description of being, intermittent in the sense used by Dr Dobson, the Deputy President is led to conclude that what the appellant told the Tribunal and Drs D’Onise and Suryapto reflected how she was feeling at the time of her assessment by those doctors and not how she felt at all relevant times. Arriving at that conclusion leads him to the further conclusion that it is likely that sometimes she did not experience any pain in her right knee.

40. We remind ourselves that the question of law that we are required to consider is whether the reasons given were adequate, not whether the conclusions arrived at were open on the evidence. To unpack the Deputy President’s reasoning in the light of the forensic contest, as we have done, demonstrates that his reasons were adequate.