Carman and Comcare
[2002] AATA 946
•18 October 2002
DECISION AND REASONS FOR DECISION [2002] AATA 946
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/719
GENERAL ADMINISTRATIVE DIVISION )
Re WAYNE JOHN CARMAN
Applicant
And COMCARE
Respondent
DECISION
Tribunal Mr R G Kenny, Member
Date18 October 2002
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
.
(Sgd) R G Kenny
Member
CATCHWORDS
WORKER'S COMPENSATION – permanent impairment – bilateral shin splints including numbness and loss of feeling in the lower limbs - injury in course of employment – impairment under Table 9.5 of the Guide to the Assessment of the Degree of Permanent Impairment - "difficulty" – whether applicant has difficulty with grades, steps and distances
Safety, Rehabilitation and Compensation Act 1988 sections 24, 27, 28
Re Brouwer and Australian Postal Corporation [2001] AATA 570
Comcare v Fiedler [2001] FCA 1810
Re Curtis and Australian Postal Corporation (AAT No 10098, 30 March 1995)
Re Nuss and Comcare [2002] AATA 170
Re Watkins and Comcare [2002] AATA 613
Re Jones and Department of Defence (AAT No 13357, 8 October 1998)
Re Peters and Australian Postal Commission (AAT No 9680, 23 August 1994)
Re Holmes and Comcare [2001] AATA 290
Re Mooney and Australian Postal Corporation (AAT No 9969, 27 January 1995)
Re Morley and Comcare (1996) 40 ALD 725
Re Whelan and Department of Defence (1996) 47 ALD 383
REASONS FOR DECISION
18 October 2002 Mr R G Kenny, Member
Application
On 13 July 2001, a delegate of the Military Compensation and Rehabilitation Service with the Department of Veterans' Affairs as delegate for Comcare (the respondent) rejected the claim of Wayne John Carman (the applicant) under the Safety, Rehabilitation and Compensation Act 1988 (the Act) for compensation payments for his bilateral shin splints including numbness and loss of feeling in the lower limbs. That decision affirmed a previous delegate's decision dated 4 May 2001. On 9 August 2001, the applicant lodged an application for review of the decision by the Administrative Appeals Tribunal (the Tribunal).
The applicant attended the hearing and was represented by Mr D Quayle of counsel. The respondent was represented by Mr C Clark of counsel. In evidence were the T documents (T1-T31) (exhibit 1) and the following:
Exhibit A1 - a medical report, dated 3 September 2001, from Dr R Thompson, medico-legal consultant surgeon;
Exhibit A2 – a statement, dated 21 October 2001, from the applicant;
Exhibit A3 - a statement of facts and contentions, dated 9 September 2002, from the applicant;
Exhibit A4 - a Non-Economic Loss Questionnaire completed by the applicant on 31 October 2001;
Exhibit R1 - a medical report, dated 19 May 2002, from Dr Keith Adam, specialist in occupational medicine;
Exhibit R2 - a letter of request, dated 19 April 2002, to Dr Adam;
Exhibit R3 – a Comprehensive Preventive Health Examination signed by the applicant on 28 February 2002;
Exhibit R4 – curriculum vitae of Dr D Hilford.
Issues and Legislation
It is not disputed that the applicant, who was born on 2 February 1970, sustained an injury resulting in permanent impairment to his lower limbs as a result of physical demands relating to his duties whilst he was serving with the Australian Army and for which he underwent a surgical procedure on 13 June 1995.
Also, it is not disputed that the respondent, on 8 June 2000, admitted liability for the applicant's bilateral shin splints with effect from 3 May 1995 and for associated numbness and loss of feeling in the lower limbs with effect from 13 June 1995 (see T24).
On 28 March 2000, the applicant lodged a claim for compensation for permanent impairment (see T20) and this was rejected in the respondent's decisions noted above.
Compensation for injuries that have resulted in permanent impairment is paid in accordance with Part II of the Act and sections 24 and 27 thereof read:
"24 Compensation for injuries resulting in permanent impairment
(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee's condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4)The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(7) Subject to section 25, where Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section.
(8) Subsection (7) does not apply to any one or more of the following:
(a) the impairment constituted by the loss, or the loss of the use, of a finger;
(b) the impairment constituted by the loss, or the loss of the use, of a toe;
(c) the impairment constituted by the loss of the sense of taste;
(d) the impairment constituted by the loss of the sense of smell.
(9) For the purposes of this section, the maximum amount is $80,000.
…
27 Compensation for non-economic loss
(1)Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
(2)The amount of compensation is an amount assessed by Comcare under the formula:
($15,000 x A) + ($15,000 x B)
where:
A is the percentage finally determined by Comcare under section 24 to be the degree of permanent impairment of the employee; and
B is the percentage determined by Comcare under the approved Guide to be the degree of non-economic loss suffered by the employee."
Sub-section 24(5) of the Act provides that the degree of permanent impairment is to be determined under the provisions of the Guide which is the Guide to the Assessment of the Degree of Permanent Impairment as prepared by Comcare pursuant to sub-section 28(1) of the Act. Relevant extracts from the Principles of Assessment in the Guide read:
"PRINCIPLES OF ASSESSMENT
Impairment and Non-Economic Loss
Impairment means `the loss, loss of use, damage or malfunction, of any part of the body, bodily system or function or part of such system or function'. It relates to the health status of an individual and includes anatomical loss, anatomical abnormality, physiological abnormality and psychological abnormality. Throughout this guide emphasis is given to loss of function as a basis of assessment of impairment and as far as possible objective criteria have been used.
Impairment is measured against its effect on personal efficiency in the `activities of daily living' in comparison with a normal healthy person. The measure of `activities of daily living' is a measure of primary biological and psychosocial function such as standing, moving, feeding and self care.
Non-economic loss, which is assessed in accordance with Part B of the Guide, is a subjective concept of the effects of the impairment on the employee's life. It includes pain and suffering, loss of amenities of life, loss of expectation of life and any other real inconveniences caused by the impairment.
Whilst `activities of daily living' are used to assess impairment they should not be confused with `lifestyle effects' which are used to assess non-economic loss. `Lifestyle effects' are a measure of an individual's mobility and enjoyment of, and participation in, recreation, leisure activities and social relationships. It is emphasised that the employee must be aware of the losses suffered. While employees may have equal ratings of impairment it would not be unusual for them to receive different ratings for non-economic loss because of their different lifestyles.
The Impairment Tables
Part A of the Guide is based on the concept of `whole person impairment' which is drawn from the American Medical Association's Guides.
Evaluation of a whole person impairment is a medical appraisal of the nature and extent of the effect of an injury or disease on a person's functional capacity and activities of daily living.
As with the American Medical Association's Guides, Part A of this guide is structured by assembling detailed descriptions of impairments into groups according to body system and expressing the extent of each impairment as a percentage value of the functional capacity of a normal healthy person. Thus a percentage value can be assigned to an employee's impairment by reference to the relevant description in this guide."
Part A of the Guide comprises groups of tables describing levels of impairment in particular parts of the body. For each level, an impairment value, expressed as a percentage of whole person impairment, is listed. The relevant components of the Guide in this matter are those which relate to the musculo-skeletal system. These are Tables 9.1 to 9.6. There is an introductory paragraph which appears immediately below the heading of Table 9.1. However, it may well also apply to the other Tables in the grouping: see Whittaker v Comcare (1998) 28 AAR 55 at 64-65. The introduction reads:
"Introduction - These tables are intended to be used to assess impairment arising from specific joint lesions or amputations. Where the joints function normally but the use of a limb is restricted for other reasons, eg soft tissue injury, nerve injury or bony injury not involving joints, Tables 9.4 or 9.5 should be used. These Tables can be used to assess the impairment of overall limb function from any cause. NOTE: either the musculo-skeletal table or Table 9.4 or 9.5 should be used - not both."
The only Tables of potential relevance in this matter are Table 9.2 and Table 9.5 which read:
TABLE 9.2
Lower Extremity
(Percentage Whole Person Impairment)
Assessment is in accordance with the range of joint movement. X-rays should not be taken solely for assessment purposes.
% DESCRIPTION OF LEVEL OF IMPAIRMENT0X-ray changes but no loss of function of hip, knee or ankle or
Ankylosis or lesser changes in any toes except the first hallux
5Loss of less than half normal range of movement of ankle
10Any ONE of the following:
loss of less than half normal range of movement of hip or knee
loss of half normal range of movement of ankle
ankylosis of first hallux15Loss of more than half normal range of movement of ankle
20Any one of the following:
loss of half normal range of movement of hip or knee
ankylosis of ankle30Loss of more than half normal range of movement of hip or knee
40Ankylosis of hip or knee
NOTES:
1. Where a joint has been surgically replaced assessment is in accordance with its function.
2. Shortening of the lower extremity by 2.5cm or more is an impairment of 5%.
3. For conditions not covered (such as flail joints) the assessment should have regard to the loss of function (not exceeding the maximum allowed for amputation).
4. Values are for one joint only. Where more than one joint is affected, values should be combined using the Combined Values Table (Table 14.1).
TABLE 9.5
Limb Function - Lower Limb
(Percentage Whole Person Impairment)%DESCRIPTION OF LEVEL OF IMPAIRMENT
10Can rise to standing position and walk but has difficulty with grades and steps
20Can rise to standing position and walk but has difficulty with grades, steps and distances
30Can rise to standing position and walk with difficulty but is limited to level surfaces
50Can rise to standing position and maintain it with difficulty but cannot walk
65Cannot stand or walk".
10. The issue for the Tribunal is the determination of the percentage whole person impairment in the applicant. It is noted that there must be at least 10% such impairment in order to satisfy the threshold requirement of sub-section 25(7) of the Act for compensation to be paid to him.
Applicant's Evidence
11. The applicant gave the following evidence.
12. He first noticed pain in the area of his shins in 1992 and underwent surgery for release of bilateral shin splints in June 1995. Prior to the emergence of the problem, he had been actively involved in sporting activities such as football, basketball and cycling and social activities such as dancing and attending the movies as well as routine activities such as lawn mowing, hanging washing, doing dishes, vacuuming and shopping. In exhibit A2, he said that, since the surgery, he has not been able to undertake those activities unhindered although, in his oral evidence, he said that he is able to undertake activities of daily living such as shopping or the tasks associated with his daily duties in the army. After walking about 300 metres, he feels "bone pain" and has swelling in his lower legs around the line of his socks. He compensates in his walking method by adopting a "pigeon-toed" stance whereby he turns his feet inwards.
13. He has been able to maintain the highest physical rating recognised by the army and, to do so, he is required to complete fitness tests. One of these is an annual basic fitness assessment (BFA) and he has done this for each of the last three years with the most recent being completed early in 2002. The BFA involves doing sixty sit ups, twenty-five push ups and a 2.4 kilometre run which has to be completed in less than thirteen minutes. The test was done at Enoggera army base and he finished the run leg in 12.45 minutes. This was compared to perhaps nine minutes for the same run before he injured his legs. He felt pain on these runs after about three to four hundred metres. The alteration of his gait occurs with the onset of pain. He is also required to complete a combat fitness assessment (CFA) and he most recently did this in June 2002 at Shoalwater Bay. A requirement for the CFA is that he complete a fifteen kilometre route march in two hours forty minutes whilst in uniform and carrying utility webbing, ration packs, shelter and a rifle all of which weighed about five kilograms. He was able to achieve the time but, again, felt pain after about three to four hundred metres and accommodated by changing his gait.
14. To assist him in these tests, he takes anti-inflammatory medication in the form of Brufen and applies a gel to his legs. After the exercise, he adopts the RICE regimen (rest, ice, compression, elevation). He has trouble sleeping after such exercise and takes medication in the form of Temazapan and either sleeps on his back or, with a pillow between his knees, on his side.
15. In relation to negotiating stairs, he is able to cope with the flight of ten steps at his home. With longer flights or with narrow steps, he feels pain in the front area of his legs and adopts a sideways stance so that he climbs them in a "crab-wise" manner. He has the same pain when climbing grades and, recently while on a training exercise, needed to negotiate a slope backwards in order to climb it.
16. One of the after effects of the surgery was the development of areas of numbness down the front of each leg.
17. In cross-examination, the applicant said that he began to feel limitations with walking and running and in negotiating steps, grades and distances by 1997 or 1998, within two to three years of his surgery. Mr Clark referred him to a medical report completed by Dr V Higgins on 18 October 1999 (see T18 at 23) where he is reported as complaining of "calf pain on running" and as having "rapidly increased his running" recently. The applicant agreed that he may have increased his running at that time but said that, even though this was more than four years after surgery, he had not mentioned problems with his shin splints, with numbness in the front of his legs or with difficulty on steps, grades and distances because he had not been asked about those matters at the time.
18. Mr Clark referred the applicant to a Benefit Election Record completed by him on 28 March 2000 (see T20 at 25) where he claimed for a condition which he described as "permanent loss of feeling lower leg post bi-lateral shin splint release". The applicant said that he could not explain why no reference was made to difficulties with steps, grades and distances in that form. He also was referred to a record of a conversation between himself and Mr C Burns (see T22 at 28) in relation to that claim where Mr Burns noted that the applicant was not claiming for shin splints but for the loss of feeling. Again, the applicant said that he had not been asked by Mr Burns about problems with steps, grades and distances.
19. The applicant said that he had seen Dr Hilford at Enoggera army base and had been conveyed through a test involving a short walk along a hallway, the ascending and descending of about three steps and then a return walk directly along the hallway to Dr Hilford's office. He denied walking a longer distance to the steps, to negotiating a flight of some twenty steps or of leaving the building for a walk of some hundreds of metres involving the negotiation of various grades before returning to Dr Hilford's office.
20. Mr Clark asked the applicant about his BFA and CFA. The applicant said that he was always confident that he would be able to complete the relevant tasks associated with these. In the 2.4 kilometre run, he said that he felt "all consuming pain" after one hundred to six hundred metres but was able to use that as motivation for continuing. With the fifteen kilometre march, pain began after about three hundred metres but he said that it was "nothing that would stop him". He also said that the pain was significant at that stage and for the remainder of the fifteen kilometres.
21. In relation to the slope that he negotiated backwards, he described this as a dam wall which was at about 45 degrees and about three metres high. He agreed that he had been walking before and after on an exercise and that he had walked further than three hundred metres.
22. Mr Clark referred the applicant to a Comprehensive Preventive Health Examination (exhibit R3) signed by the applicant on 28 February 2002. In part, this was completed by Dr P Grant and, in relation to "physical activity", notations appear that the applicant is "Very active. Plays touch", engages in "sport" and "gym" activities and does not take prescribed medication. The applicant said that these references were historical and recorded what he used to do rather than what he currently does. He said that he had not played touch football "for years". He also said that he advised Dr Grant of the limitations associated with his shin splints and could not explain the absence of reference to this. He could not recall whether or not he had advised Dr Grant of the medication he took to assist him during and after his BFA and CFA. The applicant also agreed that there was no response in that part of the form which requested details of problems troubling him.
Medical Evidence
Dr Ronald Thompson
23. The applicant called Dr Ronald Thompson, a legal consultant surgeon, who said that he was experienced in orthopaedic surgery. He examined and observed the applicant and prepared a report on 3 September 2001 (exhibit A1). In that report, Dr Thompson stated:
"No clinical abnormalities were evident today in respect of the ankles bilaterally, the sub-talar or mid tarsal joint areas, the Achilles tendons, or the plantar aspect of either heel.
The same comment applies to the knees bilaterally.
Bilateral fasciotomy surgical scars were noted and there was some hypoaesthesia around the scars.
At the distal end of the scars, roughening of the tibial cortices was evident.
No other physical abnormalities were demonstrable in either lower limb today."
24. Dr Thompson said that he observed the applicant on a sloping section in the floor of his rooms which was about thirty degrees, three to four inches high and two feet in length. He also said that he had made notes at the time but that these were now incomprehensible even to him. He agreed with Mr Clark that he had not reached a conclusion about whether the applicant has difficulty with distances and then declared that, perhaps, he should have done so because the applicant had told him that he has leg pain if he walks long distances. Dr Thompson expressed the opinion that the whole person impairment under Table 9.5 of the Guide was 10%.
Dr David Hilford
25. The respondent obtained a report from Dr David Hilford who examined the applicant and completed a report on 12 April 2001 (see T27 at 38-45) and who was a medical officer with the Australian Defence Force at Enoggera at that time. He said that he had completed at least 700 assessments, that 60 to 70% of these were associated with lower limbs and that he was very familiar with the tables in the Guide. He took the applicant through a standard course that he utilised at the army base with all of those he was asked to assess for lower limb impairment. He said that this involves walking some fifty or so metres along a hallway; ascending and descending a flight of twenty steps, twice; then leaving the building and walking some four hundred metres over ground, some flat and some sloping at levels of ten to fifteen degrees, twenty to twenty-five degrees and thirty-five to forty-five degrees, respectively. He said that this was not in his report but also that he did not need to record it because he did not vary the procedure. Mr Quayle suggested that the procedure carried out was not as outlined and that it involved only three steps and no walking outside the building on grades. Dr Hilford confirmed that he had used his traditional course.
26. Dr Hilford also said that, when he assessed difficulty for the purposes of applying Table 9.5 of the Guide, he looked for objective signs. He then completed the assessment on the basis of what he observed as well as what was told to him by the person under examination. He said that, if he had noted objective signs of walking difficulty, he would have recorded them in his report. He reported:
"On general examination, Mr Carman's gait revealed no problems with straight walking or heel to toe walking. He could squat to a normal level.
On initial inspection of Mr Carman's legs, there were no obvious areas of swelling. Palpation revealed tenderness over the superior and inferior aspects of both tibiae. The range of movement at the ankle was normal and dorsiflexion of the foot precipitated some pain in the anterior tibia on both sides. On testing of sensation, Mr Carman reported areas of anaesthesia over the medial aspects of both tibiae, and this decreased sensation was to both light touch and pin prick. There were no other evident neurological abnormalities in the lower limbs."
27. Dr Hilford concluded that there was no whole person impairment as per Tables 9.2 or 9.5 of the Guide.
Dr Keith Adam
28. The respondent also called specialist in occupational medicine, Dr Keith Adam, to give evidence. Dr Adam prepared a report on 19 May 2002 (exhibit R1). He said that he had been provided with a briefing letter prepared by both the applicant and the respondent. Dr Adam observed the applicant walking over a course that he routinely utilises. He said that he prepared his report on the basis of what he observed and after considering whether there was consistency between that and what he was told by the applicant whom he was able to remember seeing. This involved traversing a city block for about six hundred metres and negotiating stairs and sloping sections of a city car-park.
29. Dr Adam outlined the matters that the applicant had stated to him. These were that he has a loss of sensation in both shins and reduced movement in the ankles; that, although a short flight of stairs is no problem, he has a problem with twenty or more stairs as well as grades, with stairs being worse; that he particularly has problems on stairs with a narrow tread; and that he starts "to feel it" after walking about three hundred metres.
30. In relation to his observations, Dr Adam reported:
"Mr Carman is a 32 year old man, whose appearance was consistent with his stated age. On examination, there was a reduction in the range of movement of dorsiflexion in the left ankle. There were scars on both legs corresponding to the previous surgery, and an area of anaesthesia extending distally from the scars. There was mild ankle oedema.
In order to test Mr Carman's functional ability, I accompanied him as we walked approximately 600 metres around two city blocks, before walking up and down stairs and ramps in an adjacent car park. After about 200-300 metres, Mr Carman complained of some pain in his calves, although he was able to continue without any apparent difficulty. Mr Carman was then able to walk up two ramps and down one ramp. His gait was slightly abnormal and he told me that he was feeling more in his knees. Mr Carman walked up three flights of stairs and down six flights. When walking downstairs, he turned side-on to the stairs, so that he was relying on flexion in his knees, rather than the movement in his ankle joints."
31. Dr Adam agreed with Mr Quayle that dorsiflexion was more difficult where there are shin splints and that this would be noticed on grades and that this would be alleviated by traversing the slope backwards. He concluded that the applicant does suffer an impairment and that this included the loss of less than half the range of movement in the left ankle which equated with a 5% whole person impairment under Table 9.2 of the Guide. He continued:
"When I tested Mr Carman's functional capacity, as described above, I consider that he could walk 600 metres without difficulty. On slopes, Mr Carman was observed to have a slightly abnormal gait, although this did not cause him any difficulty in completing the task. According to the history I obtained, he may have had some difficulty if the slope had been steeper, or if the testing had been of longer duration. On stairs, Mr Carman clearly had some difficulty, for which he compensated by walking side-on. While this did not constitute an insurmountable difficulty, it was certainly more difficult than I would have anticipated for an "average" person of Mr Carman's age, or for Mr Carman had he not suffered the injury. In summary, I consider that Mr Carman had difficulty with steps, but not with slopes or distances, at least for the extent of my testing."
32. Dr Adam expressed the opinion that a nil rating was applicable under Table 9.5 of the Guide.
Applicant's Submission
33. Mr Quayle submitted that the applicant was an honest and reliable witness who had not attempted to exaggerate his symptoms for any of the examining doctors. He referred to the Comprehensive Preventive Medical Health Examination (exhibit R3) and submitted that the explanations given by the applicant to Mr Clark should be accepted as correct. The reference to matters such as touch football were historical as the applicant had explained and the document had not been completed against the background of the matter before the Tribunal and was not completed with a focus on concepts of difficulty with steps, grades and distances. He submitted that nothing should be made of the failure to mention medication in that document and that, similarly, the lack of reference to these matters in the Benefit Election Record (T20) was not against the applicant because, again, the focus of that document was different.
34. Mr Quayle submitted that the experiencing of pain can, by itself, constitute difficulty and that the applicant should be believed in his evidence that he felt pain on walking distances as well as on stairs and grades. Further, in the applicant's case, there was more than the presence of pain. There were strategies that he had adopted to accomodate to the pain: in relation to walking, there was his altered gait and, in relation to stairs, there was the side-on posture that he adopted. In relation to the slope on the dam wall, he chose to walk backwards to enable him to complete the task.
35. In relation to the report of Dr Adam, Mr Quayle submitted that the difficulty with stairs which had been noted should be extended to grades because of the concession that Dr Adam made in his evidence concerning the prospect that there may have been observable difficulty if the grades had been steeper or longer or both.
36. Mr Quayle submitted that the testing by Dr Hilford was not conducted by him in the manner he described. He had no independent recollection of the applicant and had completed hundreds of such tests whereas the applicant had a clear recollection of the one occasion that he had been tested by Dr Hilford. In any event, he submitted that Dr Adam's report should be preferred because it had been obtained more recently.
37. In relation to Dr Thompson, Mr Quayle submitted that his opinion that there were difficulties experienced by the applicant should be accepted because Dr Thompson had observed the applicant and had applied his considerable experience to what he was told by the applicant.
38. While conceding that the applicant was able to complete his BFA and CFA tests, Mr Quayle submitted that this did not mean that difficulty was not experienced by the applicant in doing so. He submitted that the completion of the task is not the subject of the criteria in Table 9.5; rather, it is in having difficulty doing so. Also, the applicant did not undertake such activities by choice but only because he needed to do so to maintain the fitness rating which would enable him to continue in his career.
39. Mr Quayle submitted that there was difficulty with stairs and grades which would therefore require a rating of 10% under Table 9.5 of the Guide and that there was also difficulty with distances which would therefore require a rating of 20% under that table.
Respondent's Submission
40. Mr Clark submitted that the applicant was not a reliable witness and that his evidence contained significant inconsistencies. He referred to several reports of pain from shin splints in 1995 (see T5), to undergoing surgery in that year (see T8 and T9) and to being pain free in 1996 (see T15). He gave evidence that he began to feel pain in 1997 or 1998 but, despite that, there is no reference to pain until October 1999 (see T18) and that reference was to calf pain rather than to that associated with shin splints. In his Benefit Election Record and Claim for Compensation (see T20 and T21) and associated records of conversations in relation to that claim (see T22), there is no reference to pain associated with his shin splints but only to the loss of feeling around the surgical scars. Following the rejection of his claim on 4 May 2001 (see T28), the applicant sought review but made no mention in his letter dated 21 May 2001 (see T29) of the criteria in Table 9.5 despite the fact that he had received Dr Hilford's report. Mr Clark also submitted that the unreliabilty of the applicant was demonstrated by his responses to the questions on the Comprehensive Preventive Health Examination form which he had signed. He submitted that the response concerning touch football was not made in relation to an historical account but, rather, in relation to then current activities and also that the response in relation to the taking of medication was not consistent with his evidence concerning the taking of Brufen and Temazapan.
41. Mr Clark also submitted that the applicant's evidence of the level of pain he experienced during the fifteen kilometre march for his CBA should be rejected. This was on the basis that it was not tenable that a person would feel such high pain levels after only three to four hundred metres and continue on for another 14.6 kilometres.
42. Mr Clark submitted that the only medical evidence pertaining to difficulty experienced by the applicant was that of Dr Thompson in relation to negotiation of steps and grades and that of Dr Adam in relation to steps. In respect of the former, he submitted that the opinion was reached in relation to steps without observation of the applicant negotiating steps. Mr Clark submitted that little weight should be given to the report of Dr Thompson because of the lack of testing that he completed and that, rather, reliance should be placed on the opinion of Dr Adam who reported no difficulty in relation to grades or distances. Also, in relation to Dr Adam's conclusion about steps, he submitted that the conduct of the applicant in adopting a side-on stance on the first step that he encountered was not consistent with what he had told Dr Adam about being able to cope with a short flights of stairs.
43. In relation to Dr Hilford's report, Mr Clark submitted that there was no reason to reject his evidence about the nature of the test that he conducted as there was no reason for Dr Hilford to misrepresent what he did. He used the test that he routinely utilised without departing from it and took the applicant through a series of different grades and noted no difficulty.
44. In summary, Mr Clarke referred to the fact that the applicant was able to complete the physical requirements of his BFA and CFA as demonstrating that he did not experience difficulty with distances.
Consideration
45. The applicant suffered an injury comprising bilateral shin splints including numbness and loss of feeling to his lower limbs. It is not in dispute and, having regard to the matters in sub-section 24(2) of the Act, I find that the applicant experiences impairment from the injury and that the injury is permanent.
46. In this case, Tables 9.2 and 9.5 of the Guide have both been referred to in the evidence but submissions have been made only in relation to the latter. Only Dr Adam noted a level of impairment under Table 9.2 of the Guide and this was at the level of 5% which is less than the 10% threshold required under the Act.
47. To meet the threshold of 10% under Table 9.5 of the Guide, the applicant must be able to rise to a standing position and walk but have difficulty with grades and steps. For the threshold of 20% under that Table, he must be able to rise to a standing position and walk but have difficulty with grades and steps and distances. Clearly, he can rise to stand and can walk; but, does he have difficulty with grades and steps or with distances? The term difficulty was considered by the Full Court of the Federal Court in Comcare v Fiedler [2001] FCA 1810. There, the Court considered the phrase difficulty with digital dexterity as it is used in Table 9.4 of the Guide. The Court rejected the view expressed in earlier Tribunal cases that such difficulty would only arise where that difficulty is "very severe" (see Re Peters and Australian Postal Commission (AAT No 9680, 23 August 1994)) or "very significant or substantial" (see Re Holmes and Comcare [2001] AATA 290). The Court said:
'22. …The word "difficulty", like most ordinary English words, has no fixed meaning but is… a word capable of covering a broad spectrum of restriction and disability in the context of a phrase such as "difficulty with digital dexterity" in Table 9.4. According to the Macquarie Dictionary, 3rd ed, "difficulty" connotes a range of conditions from being "not easy", to being "hard to do", to "requiring much effort". According to the Oxford English Dictionary, 2nd ed, it connotes notions of not being easy, of requiring effort or labour, of being troublesome or hard to do, perform or carry out. An injury that leaves a person in the position of requiring much effort to perform tasks calling for digital dexterity involves a markedly more serious impairment than does an injury which makes it not easy or troublesome for a person to perform such tasks.
23. Something more than minimal problems with digital dexterity is required. But if a person, as a result of his injury, finds it troublesome or not easy to do tasks requiring digital dexterity, that will, adopting the approach to interpretation required by Whittaker v Comcare (1998) 86 FCR 532 at 544 - 545, justify a 10% impairment assessment under paragraph 1 of Table 9.4.
24. The Tribunal, having correctly rejected the interpretation placed on the phrase in Table 9.4 in Holmes and Peters, appears to have applied an interpretation to this effect to the facts of the case as found by it then it concluded that the respondent "clearly has difficulty with digital dexterity in both hands and, indeed, substantial difficulty with digital dexterity with his right hand". There is no reason to think the Tribunal considered that any difficulty with digital dexterity, no matter how slight, was sufficient to come within par 1 of Table 9.4.'
48. Applying that interpretation to Table 9.5 of the Guide, the applicant will have difficulty if he finds it troublesome or not easy to negotiate grades, steps and/or distances; the limitation need not be significant or substantial but it must be more than slight or minimal: see Re Nuss and Comcare [2002] AATA 170 at paragraph 60; Re Watkins and Comcare [2002] AATA 613 at paragraph 90.
49. The factor(s) responsible for giving rise to the particular difficulty will need to be considered. In Re Mooney and Australian Postal Corporation (AAT No 9969, 27 January 1995) at paragraph 34, the Tribunal found that "experiencing pain amounts to difficulty in that it makes the function of walking harder to perform". The Tribunal accepts the submission of Mr Quayle that pain may be taken into account as the source of difficulty in performing an activity: see also Re Curtis and Australian Postal Corporation (AAT No 10098, 30 March 1995) at paragraph 55, Re Whelan and Department of Defence(1996) 47 ALD 383 at 401 and Re Watkins and Comcare [2002] AATA 613 at paragraph 91.
50. While pain may be taken into account as a source of difficulty in performing an activity, that is not to say that the mere presence of pain, without more, means that difficulty is experienced. The Tribunal notes the reference in the relevant Principles of Assessment to objective criteria (see paragraph 6 above) and is satisfied that, before there can be a finding that there is difficulty in performing a task because of pain some other factor, there must be some objective manifestation of that pain which reveals the difficulty. To find otherwise would be to equate pain with difficulty and to allocate impairment ratings for those matters which more properly fall for consideration as lifestyle effects for assessment under non-economic loss: see Re Watkins and Comcare [2002] AATA 613 at paragraph 92.
51. In Watkins and Comcare [2002] AATA 613 at paragraphs 93 to 96, the following decisions are set out as examples of difficulty being found where the Tribunal was able to find an element beyond the experiencing of pain: Brouwer v Australian Postal Corporation [2001] AATA 570, Re Whelan and Department of Defence (1996) 47 ALD 383 and Re Jones and Department of Defence (AAT No 13357, 8 October 1998).
52. No assistance is given in the Guide as to the meanings of the terms grades, steps and distances. The concepts of grades and steps are not difficult to understand although no guidance is given on the degree of gradient or the number of steps that are to be considered; nor is any quantification of distance provided. However, the Principles of Assessment (see paragraph 7 above) provide that impairment is measured against its effect on personal efficiency in the "activities of daily living" in comparison with a normal healthy person. In the context of that overall Principle, the degrees and lengths of grades, the numbers of steps, and extent of distances to be considered for Table 9.5 of the Guide are those that are expected to be traversed by a normal healthy person and, for the basis of comparison, this would need to be a male person of the same age as the applicant. This was the approach adopted in the Tribunal decisions of Re Whelan and Department of Defence (1996) 47 ALD 383 at 399 and Re Morley and Comcare (1996) 40 ALD 725 at 731: see also Re Nuss and Comcare [2002] AATA 170 and Re Watkins and Comcare [2002] AATA 613.
53. In this case, I accept the correctness of the submissions of Mr Clark in relation to the unreliability of the applicant's evidence. He said in evidence that he began to feel pain in 1997 or 1998 but made no reference to pain associated with his shin splints in his Benefit Election Record and Claim for Compensation (see T20 and T21) or in the records of conversation associated with that claim (see T22). These were completed in March 2000. There, he refers only to the loss of feeling around the surgical scars. He did make reference to pain in October 1999 (see T18) when seeing Dr Higgins but that was to calf pain rather than to that associated with shin splints. The applicant's explanation that he was not asked about pain in his shins is not consistent with a person actually experiencing pain in the front part of his legs and not volunteering that information to a doctor to whom he is complaining of pain in the calves of his legs. That is especially so when the report of Dr Higgins refers to a "good response to release of bilateral shin splints by Dr McKenzie in 1995". Also, the record of conversation with Mr Burns (T22) reflects a denial that he was making a claim for pain associated with his shin splints as opposed to numbness in the area thereof.
54. The explanation by the applicant of the entries attributed to him in the Comprehensive Preventive Health Examination form as being an historical account is not convincing, particularly in the light of his failure to mention medication that he claims to ingest to assist him with the rigours of the BFA and CFA requirements.
55. In his evidence, the applicant conceded that he may have increased the levels of his running activities at about the time that he saw Dr Higgins in March 1999. Again, that is not consistent with the level of pain that the applicant claims to experience even after three to four hundred metres of walking.
56. I accept the evidence of Dr Hilford in relation to the nature of the tests that he conducted of the applicant at Enoggera. He may have done many such tests but he was clear in his evidence of the approach he routinely adopts for the testing of lower limb function. He noted no objective signs of difficulty by the applicant in negotiating stairs, grades of varying pitch or in the walking of distance of some four hundred metres.
57. The evidence of the applicant is that he has made adjustments to his mode of walking when he experiences pain in that he walks in a "pigeon-toed" manner. He also adapts his means of negotiating steps in that he approaches them in a side-on manner. Dr Adam reported that the applicant adopted the side-on approach in negotiating steps and concluded that he had difficulty in that regard. In relation to the sloping section of the car-park, Dr Adam observed a slightly abnormal gait but, nonetheless, did not conclude that there was difficulty being experienced. Mr Quayle submitted that, as noted by Dr Adam, further testing may have given rise to a different conclusion. Of course, it may, equally, not have done so. Dr Thompson's evidence was based on minimal observations of the activities of the applicant in his rooms. Having seen the applicant negotiate a very slight and very short sloping surface, he was able to conclude that the applicant has difficulty with steps and grades. I prefer the evidence of both Dr Hilford and Dr Adam to that of Dr Thompson on the basis of their respective objective assessments of the applicant in negotiating steps, grades and distances.
58. The most significant aspect of the evidence in this case is that associated with the applicant's capacity to maintain the highest of fitness levels required by the Australian Army by completing his BFA and CFA which require not only the traversing of significant distances but also the completing of them within rigid time constraints. I am satisfied that any adjustment made by the applicant to his gait is no more than "slight". It was so described by Dr Adam and not noted at all by Dr Hilford. That is not sufficient to show that the applicant has difficulty with slopes or, indeed, distances.
59. I am satisfied that the applicant does not experience difficulty with slopes or distances which can be described as troublesome to him or as being not easy for him, in the sense that those phrases are used in Comcare v Fiedler [2001] FCA 1810. It follows that he does not meet the threshold level of 10% whole person impairment in Table 9.5 of the Guide.
Decision
60. In all the applicant's circumstances and for the reasons set out above, the Tribunal affirms the decision under review.
I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member
Signed: ...............................................................................
AssociateDate of Hearing 25 September 2002
Date of Decision 18 October 2002
Counsel for the Applicant Mr D Quayle
Solicitor for the Applicant Ms R Bohill, D'Arcys Solicitors
Counsel for the Respondent Mr C Clark
Solicitor for the Respondent Ms C Houston, Blake Dawson Waldron
7