Carter and Military Rehabilitation and Compensation Commission

[2006] AATA 721

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 721

ADMINISTRATIVE APPEALS TRIBUNAL

GENERAL ADMINISTRATIVE DIVISION

)          
)          N2005/913
)

Re

STEVEN JOHN CARTER

Applicant

And

MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal

Senior Member M D Allen
Dr I Alexander, Member

Date

21 August 2006

Place

Sydney

Decision

The decision under review is set aside and this matter remitted to the Respondent with the Direction that the Applicant suffers a 10 percent permanent impairment as a result of the injury described as “right shoulder instability”.

The Respondent is to pay the Applicant’s costs.

(Sgd)  M D Allen

..............................................

Presiding Member

CATCHWORDS

WORKERS’ COMPENSATION – permanent impairment for right shoulder instability – liability accepted by Respondent – whether the Applicant’s impairment is permanent – suggestion by the Respondent of voluntary restriction of movement by the Applicant rejected by the Tribunal – comparison to  “normal healthy person” – decision under review set aside and remitted to the Respondent with the direction that the Applicant suffers a 10% permanent impairment.

Safety, Rehabilitation and Compensation Act 1988; ss 4, 24

Re Kay and Comcare (1997) 47 ALD 476

Comcare v Ticsay (1992) 38 FCR 181

Whittaker v Comcare (1998) 28 AAR 55

Comcare v Moon (2003) ALD 160

REASONS FOR DECISION

21 August 2006 Senior Member M D Allen
Dr I Alexander, Member

1. By application made 20 July 2005, the Applicant sought review of a “Reviewable Decision” made 28 June 2005 affirming a prior determination that he was not entitled to payment for permanent impairment arising out of the injury described as “right shoulder instability”.

2. The Applicant enlisted in the Australian Regular Army (“the ARA”) on 5 June 2001.  On 17 December 2001 he injured his right shoulder whilst engaged in physical training.  Liability for the injury was accepted by the Respondent in a decision dated 18 June 2004.

3. In a memorandum dated 8 December 2003, the Applicant’s commanding officer described the restrictions placed upon the Applicant by his injury and subsequent treatment thus:

   “…

   2.In Dec 2002 PTE Carter injured his right shoulder whilst doing personal PT climbing ropes.  Since the injury he has experienced pain and discomfort when performing the duties required of him.  PTE Carter has had numerous appointments with the RMO, specialists and physio since his injury.  Additionally, he has been medically restricted from performing full duties on repeated occasions.  In Feb 2002 PTE Carter was made MEC 301 which made the member non-deployable.  In May 2002 PTE Carter had a keyhole shoulder reconstruction.  This was followed up by an open shoulder reconstruction in July 2002.  This MEC has been reviewed every 3 months and on the 24 Oct 03 PTE Carter was reclassified as MEC 402.

   3.PTE Carter is not able to perform most general service duties.  His injury makes his employment with the Bn very limited.  PTE Carter can no longer perform the duties required of a soldier in an operational environment.  The RMO has indicated that PTE Carter will not regain fitness for full duty.

   4.PTE Carter has displayed a positive attitude towards his disability.  He has completed his duties at the RI Store to a good standard and has actively sought to overcome his injuries.  Although PTE Carter is disappointed with the results of his recovery and would like very much to remain a soldier, he accepts that he will most likely be medically discharged in the near future.”

1. Previously, in an Employment Classification Review conducted on 9 May 2003, an Army Medical Officer noted that the Applicant had difficulty in lifting, doing push-ups or raising the right arm above shoulder-level together with intermittent mild pain in the right shoulder.

2. In an undated memorandum Mr Blaxendale, Physiotherapist, wrote to Captain Hay the Regimental Medical Officer at the Applicant’s unit (3 RAR) as follows:

   “Thank you for referring PTE Carter for assessment for his Rt shoulder post arthroscope and open stabilisation 2002 prior to his discharge.

   On initial examination, active shoulder flexion and abduction were limited to 135 and 142 degrees respectively.  Resisted external rotation, scaption, flexion and abduction were all significantly weak.  PTE Carter also has moderate scapula winging due to a weak serratus anterior.  Hawkins Kennedy Impingement testing was positive.  The relocation test and apprehension test were negative.  Scapula humeral rhythm and contol [sic] were poor.

   I have given PTE Carter specific exercises for both rotator cuff strengthening and scapula humeral rehabilitation.  I have also suggested that he seek further physiotherapy treatment post discharge as I feel that he will progress well with formal rehabilitation and strengthening.”

1. On 27 October 2004, a report of a final separation health examination of the Applicant prior to discharge from the ARA as being unfit for service noted that he was not fit to lift heavy weights and was not fit for pushing, lifting, throwing or load carrying.

2. In evidence to the Tribunal, the Applicant stated he did not think that his shoulder had changed much since six months after his second operation.  It gets better or worse on a day-to-day basis in particular, it gets sore and stiff in cold weather, if he sleeps on it or does hard work or uses it regularly, uses a screwdriver, works with his hand over his head or when reaching around something to work.  The pain and stiffness can last a few minutes to an hour and if he has been using his shoulder all day, the soreness can last a few hours and cause him to wake at night.  He finds that his shoulder fatigues very quickly when he does heavy work or is doing a twisting movement, putting pressure on it, holding his arm out or using his arm above his head.  His shoulder restricts his ability to rock climb, swim or work over long periods, do repetitive lifting and use his right arm for steering a motor vehicle.

3. During these proceedings, some debate occurred regarding the Applicant’s variation in symptoms.  In particular, the Applicant stated that after activities such as carrying firewood, his arm gets very sore and fatigues quickly.  If he does a long period of heavy work his arm will get sore and throb.

4. He conceded that the second time he was examined by Dr David Maxwell, Orthopaedic Surgeon, he had been working prior to that examination, hence his range of movement may have been less than on the previous occasion.

5. More important was the Applicant’s statement that whereas he is apprehensive about hurting himself, he was trying to have the full range of movement both times he saw Dr Maxwell.  He denied, quite emphatically, the suggestion that he had tried to demonstrate a restriction of movement.

6. So far as the Applicant’s evidence is concerned, we regard him as a very honest and straightforward witness who on occasions gave answers which were not to his particular advantage.  We accept his evidence in its entirety.  We further note that no examining medical practitioner made specific complaints of non co-operation with the examination.

7. Dr Angus Gray, Orthopaedic Surgeon, examined the Applicant on 27 January 2005.  On examination he noted:

   “…

   Examination

   …  His range of movement was somewhat restricted.  Elevation of the right shoulder was to 170° compared to 180° on the left.  Internal rotation was to T12 compared to T9 on the left.  External rotation was symmetrical.  Power in the right shoulder was slightly restricted secondary to discomfort.  There were no signs of rotator cuff pathology although he did have a slightly position impingement sign on the right.  There was a negative sulcus sign and I could not demonstrate any shoulder instability clinically.”

1. Having regard to table 9.1 of the Comcare Guide to the Assessment of the Degree of Permanent Impairment (“the Comcare Guide”), Dr Gray opined that the Applicant had suffered a 10 percent permanent impairment.

2. In a further report dated 20 October 2005, Dr Gray stated:

   “My examination of Mr Carter on 27 January 2005 was thorough and based on repeated examinations.  There was consistent restriction of both elevation and internal rotation of the right shoulder.  There was a 10° restriction in elevation and a three level restriction in internal rotation (T12 compared to T9).  I do not agree that T12 is within the normal range.  Mr Carter’s normal range is T9.  After almost any shoulder surgery one would expect some loss of movement secondary to capsular tightness.  I believe this is the case with Mr Carter.  On that basis if one assumes that T9 is his normal level, then he does have restriction of internal rotation.  Correlating this to the AMA Guides’ method of measurement, this would be equivalent to at least a 10° loss of internal rotation.  This is also the case for elevation, where there is 10° loss compared to the left.  On that basis I would classify his loss of movement as to be less than half the normal range, as per table 9.1”.

1. In evidence, Dr Gray adhered to his assessment of a 10 percent permanent impairment as per table 9.1 of the Comcare Guide.  Cross-examined, he stated that the Applicant had a loss in two planes of movement of more than 10 degrees.

2. Dr Gray also pointed out that he had never seen anyone with a normal range of movement following shoulder surgery.

3. Dr Maxwell examined the Applicant on two occasions.  Following the first examination he opined that the Applicant had a 10 degree loss of abduction and a 3 degree loss of extension with changes visible on an MRI scan.  Following the second examination, Dr Maxwell found a 12 degree loss of abduction and a slightly increased loss of flexion and external rotation as per the previous examination.  In an addendum to his second report, Dr Maxwell stated that the total loss of range of movement was 39 degrees which when compared to the Applicant’s left shoulder, equated to about six percent, which he considered a minimal loss of function.

4. Questioned by the Tribunal, Dr Maxwell reiterated that the Applicant did come within the category of a person who had suffered a loss of less than half normal range of movement.  He also agreed that the examination of loss of range of movement by comparing the patient’s opposite side (of the body) to the injured limb was often the best way of making an assessment of the loss of range of movement and probably more accurate.  We note that in this case, that was the method adopted by Dr Gray.

5. The Respondent based its case upon an interpretation of table 9.1 of the Comcare Guide which requires more than a minimal lack of function before a loss of range of movement can be considered.

6. Table 9.1 so far as is relevant reads:

%

description of level of impairment

0

X-ray changes but no loss of function of shoulder, …

5

ANY ONE of the following:

·        x-ray changes with minimal loss of function of shoulder, …

·        …

10

ANY ONE of the following:

·        loss of less than half normal range of movement of shoulder …

·        …

15

…

1. Even before resort may be had to table 9.1, we must be satisfied that the Applicant’s impairment is permanent. “Permanent” is defined in s 4 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”):

   4.Interpretation

   (1)In this Act, unless the contrary intention appears:

   …

   "permanent" means likely to continue indefinitely”.

Whereas “impairment” is defined as:

“…

"impairment" means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.”

1. Given the medical reports before us and the evidence of the Applicant, we are satisfied that the Applicant does suffer an impairment and that impairment is permanent.

2. In applying the Comcare Guide to the assessment of impairment, the introduction to the Comcare Guide deals with gradations of impairment.  It is stated at page 4:

   “…

   Gradations of Impairment

   Each table contains impairment values at gradations of 5% or multiples of five percent.  Where it is not clear which of two impairment values is more appropriate, Comcare has the discretion to determine which value properly reflects the degree of impairment.”

The Comcare Guide also states at page 3:

“Impairment and Non-Economic Loss

Impairment is measured against its effect on personal efficiency in the ‘activities of daily living’ in comparison with a normal healthy person (Tribunal’s emphasis).” 

1. We are at a total loss as to how to apply the standard of a “normal healthy person”. This matter illustrates that point markedly.  Here the Applicant is a now 23 year old ex-member of an infantry battalion.  Obviously he cannot be compared with a 50 year old member of the public service who has led a completely sedentary life.  We do not even venture into seeking to assess such questions as how many standard drinks a week a normal healthy person consumes or what degree of exercise they take?

2. Both orthopaedic surgeons who examined the Applicant found that he had a loss of range of movement.  Both considered that it was a loss of less than half normal range of movement.  Prima facie this would seem to bring the Applicant clearly within the 10 percentile range in table 9.1.

3. The Respondent referred to Re Kay and Comcare (1997) 47 ALD 476 as authority for the proposition that before a loss of range of movement can be considered there must be more than a minimal loss of function. At p 478 the Tribunal (SM Burton) said:

   “…

   I accept that a loss of less than half normal range of movement must involve a more significant impairment than a minimal loss of function if the values are to be fairly applied.”

1. Kay v Comcare (supra) went on appeal to the Federal Court: see Comcare v Kay (1997) 26 AAR 124, but this particular point was not canvassed in the appeal.

2. To our mind the Applicant has suffered more than a minimal loss of function of the right shoulder.  The term “minimal” is defined in the Oxford English Dictionary (1970 reprint of the 1993 edition) as:

   “Smallest, least, extremely minute in size; of the nature of or constituting a minimum; a minimum amount, quantity or degree; that is the least possible.”

Whereas “minimum” is defined in meaning 2 as:

“The least amount attainable, allowable …”

1. In this matter, we are satisfied, given the evidence of the Applicant and the medical reports in evidence, that the Applicant has suffered more than a minimal loss of function of the right shoulder.  In particular, we note that he was discharged from the ARA because of limitations upon his ability to function as a result of the shoulder injury and that in his every day life, activities have been constrained because of pain and fatigue resulting from his right shoulder impairment.

2. As stated above, both orthopaedic surgeons found a loss of range of movement and this, together with the restrictions of weight-bearing, ie carrying and other activities, would demonstrate, in our finding, a more than minimal loss of function.  However, when considering which gradation of impairment value to apply, regard must be had to the judgment of the Full Court of the Federal Court in Whittaker v Comcare (1998) 28 AAR 55 at 67 where the Court adopted the approach to the Comcare Guide espoused by Olney J in Comcare v Ticsay (1992) 38 FCR 181, namely:

   “The first principle established by the authorities is clearly stated by Hill J in Thiele v Commonwealth (1990) 22 FCR 342 at 346 when he said in relation to the precursor of the Act:

   ‘The present legislation is socially remedial legislation intended to benefit workers and should be given a construction which advances its purposes as such.  Thus where two constructions are possible, that which is favourable to the worker should be preferred: … ‘

   Reference was also made to the dictum of Gibbs J (as he then was) in Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336 at 350:

   ‘[W]here two meanings are open ... it is proper to adopt that meaning that will avoid consequences that appear irrational and unjust.’

   Having regard to the definition of the term ‘impairment’, to the provisions of ss 14 and 24, and to the particular purpose of the Guide as provided in s 28(1), it seems that the legislative policy of the Act is to provide for the payment of compensation to an employee who has suffered an injury resulting in a permanent impairment.  The Guide should be construed and applied in aid of the general statutory purpose, not as a means of limiting it.”

1. As stated above, the Applicant has a loss of range of movement which both orthopaedic surgeons agree exists but is of less than a loss of half normal range of movement.  He is therefore clearly within the 10 percentile range.

2. So far as any suggestion of a voluntary restriction of movement or a restriction because of pain is concerned, we reject that.  As was pointed out by Mansfield J in Comcare v Moon (2003) 75 ALD 160, a cessation of activity because of pain is not a factor which restricts the degree of impairment. In any event, we accept the Applicant’s evidence he made a genuine effort when examined. Likewise, that a restriction of range of movement can be measured differently on separate days does not mean in our opinion that an impairment is not permanent as that term is defined in s 4 of the Act.

3. The decision under review is set aside and this matter remitted to the Respondent with the direction that the Applicant suffers a 10 percent permanent impairment as a result of the injury described as “right shoulder instability”.

4. The Respondent is to pay the Applicant’s costs.

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Dr I Alexander, Member.

Signed:         
           .....................................................................................
  Associate

Date of Hearing  26 July and 9 August 2006
Date of Decision  21 August 2006

Counsel for the Applicant  Mr Craig Colborne
Solicitor for the Applicant  Wyatt Attorneys
Counsel for the Respondent                  Mr Geoffrey Johnson

Solicitor for the Respondent                   Australian Government Solicitor