Christopher Odell and Comcare
[2014] AATA 591
•22 August 2014
[2014] AATA 591
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/2388
Re
Christopher Odell
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal RM Creyke, Senior Member
Date 22 August 2014 Place Canberra The decision under review is affirmed.
......................[sgd]..................................................
RM Creyke, Senior Member
Catchwords
COMPENSATION – Commonwealth employee – accepted injury to left leg – whether continues to suffer accepted injury – whether suffered impairment as a result of injury – whether impairment is permanent – whether met minimum level of whole person impairment in accordance with Guide – whether suffered compensable economic loss.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) section 14, 24, 27, 28
Cases
Secondary Materials
Guide to the Assessment of the Degree of Permanent Impairment (edition 2.1)Dr Harvey Marcovitch Black’s Medical Dictionary (42nd, 2010)
REASONS FOR DECISION
RM Creyke, Senior Member
Mr Christopher Odell, born 1970, injured his left leg at work on 16 December 2010.
On 18 January 2011 Comcare accepted his application for compensation for ‘fracture of tibia and fibula (left)’ under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act).
On 13 December 2012, Mr Odell lodged an application for compensation for permanent impairment under section 24 of the Act and for non-economic loss under section 27 of the Act.
That application was refused on 19 February 2013 on the basis that his impairment did not reach the threshold of 10 per cent, a decision upheld by Comcare on review on 16 April 2013.
On 22 May 2013, Mr Odell sought further review by the Tribunal. The matter was heard in Canberra on 28 and 29 May 2014. Final written submissions were provided by the parties on 10, 23 and 30 June 2014.
Background
Mr Odell was employed on a two-year contract by Indigenous Business Australia. He suffered multiple fractures to his lower left leg on 16 December 2010. The injury occurred while he was participating in a potato sack race during the work Christmas party.
On 17 December 2010 he was operated on at The Canberra Hospital and a tibial nail and screws were inserted to lock the bones into place. He was discharged on 21 December 2010. He was certified unfit for work between 16 December 2010 and 24 February 2011, fit for work for three days a week from 10 March 2011 to 14 April 2011, and for four days a week from 14 April 2011 to 26 May 2011. By 25 May 2011, Mr Odell was again certified fit for full time work.
A report by his surgeon, Dr Nicholas Tsai, dated 23 March 2011, noted that although Mr Odell was back at work part-time, ‘pain has increased as he puts more weight on’ his leg and there was a ‘moderate amount’ of bone healing. He also noted that if Mr Odell’s pain did not settle down, there might be a need ‘for removal of the tibial nail twelve months down the track’.
Mr Odell undertook physiotherapy after the accident. In a letter to Dr Tsai, the surgeon, dated 1 April 2011, Mr James Pipie, physiotherapist reported that Mr Odell had a ‘full range of movement in the ankle and knee’, but displayed ‘marked weakness’ and pain in his ankle. In addition, the report said ‘his gait is slow and antalgic and he is using hip circumduction to overcome his lack of push-off in the left ankle’.
On 15 April 2011, Mr Odell was referred for an initial needs assessment for a return to work program. The recommendation was that he not undertake a return to work program as he was scheduled to return to full time work in May 2011. He should continue with physiotherapy. The general conclusion was that ‘Mr Odell …. feels he has turned a corner … is able to do much more to assist himself in his rehabilitation process, and is taking steps to increase his general exercise levels’.
A report from Mr Stephen Reynolds, soft tissue therapist, on 1 June 2011 was that Mr Odell had ‘marked decrease in muscle bulk on left leg’, had ‘very poor proprioception on the left leg’, was ‘unable to stand on one leg for more than 3 seconds’, had ‘poor strength in the left calf’, a ‘heavy limp … in walking gait’, and ‘tight left hip … from poor walking biomechanics’. Mr Odell attended for exercise physiology between 15 March 2012 and 7 August 2012.
Dr Tsai provided a further report on 8 November 2011. The report noted ‘his left leg becomes weak after exercise’ and he has ‘some numbness’ and then gets ‘muscle cramps in both legs’, that he was ‘not able to run’, he has ‘anterior knee pain’, and ‘avoids kneeling or any activities that would aggravate the knee pain’. However, he confirmed that the bone had fully united. He endorsed swimming and walking in the pool and noted that the tibial nail might need to be removed.
Mr Odell participated in a rehabilitation program at The Canberra Hospital for eight to nine months, including consulting an occupational therapist and hydrotherapy.
As pain persisted, Mr Odell underwent surgery again on 17 April 2012 when the tibial nail and four screws were surgically removed. He was certified unfit for work between 19 April 2012 and 4 May 2012. However, a report of Dr Tsai dated 30 April 2012 said Mr Odell ‘is doing very well’. He was ‘now able to bend the knee without any pain and almost feels that he can go back to light jogging straight away’.
Mr Odell’s contract with Indigenous Business Australia came to an end in June 2012 and was not renewed. Since then Mr Odell has set up business as a self-employed landscape gardener, a job which he performs about three days a week. For the balance of time he looks after his young children. Mr Odell’s evidence is that he often struggles to perform his landscaping work due to his leg problems and he uses contractors to do physical work involving the lower limbs.
Mr Odell’s evidence is that he is the primary carer for his young children and at times he takes extended periods of leave from his business to do so. Evidence provided to the Tribunal indicated that in the 20 months from August 2012 to May 2014, he worked on average 9 hours a week. If his periods of leave are excluded, he worked an average of 17 hours a week. His evidence is that he experiences difficulty if he gardens for any prolonged period.
On 27 January 2011, Mr Odell attended the Emergency Department of The Canberra Hospital, having fallen when a chair in which he was sitting collapsed. He had a painful left ankle as a result. X-rays showed no further damage to his existing left leg injuries.
Medical evidence
Mr Odell has had the following imaging:
·16.12.2010: X-ray lower extremity – left knee.
·30.12.10: X-ray lower extremity – left tibia/fibula.
·9. 2. 2011: X-rays lower left leg.
·23. 3 2011: X-ray left tibia and fibula.
·9.5.2011: X-rays – left tibia and fibula.
·21.3.2012: X-ray – left leg.
·5.9.2013: X-rays of the right knee, left knee, right ankle and left ankle.
The imaging established that the bones had united and that clinically his ankle had recovered from the injury.
Medical evidence was received from:
·Dr Nicholas Tsai, orthopaedic surgeon, reports dated 18 December 2010, 9 February 2011, 23 March 2011, 9 May 2011, 8 November 2011, 21 March 2012, 17 April 2012, and 30 April 2012,
·Dr Anthony Smith, orthopaedic surgeon, 5 February 2013,
·Dr Thomas Davis, consultant surgeon, reports of 13 August 2013, 10 October 2013, and 6 March 2014;
·Dr Anthony Cairns, orthopaedic surgeon, reports of 4 September 2013, and 20 November 2013;
·Dr John Deery, Mr Odell’s general practitioner, report of 4 December 2012;
·Ms Rebecca Winbom, physiotherapist, report of 21 August 2012.
·The Canberra Hospital clinical notes.
Legislation
The legislation is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act). Compensation for a permanent incapacity is found in section 24 of the Act, and compensation for non-economic loss is provided for in section 27 of the Act.
Section 28 of the Act provides for a Guide to the Assessment of the Degree of Permanent Impairment’ (Guide)[1] to assess the degree of permanent incapacity. The relevant tables in the Guide for an injury to the lower extremities are Tables 9.2, 9.3, 9.5, and 9.7. The Guide binds Comcare and the Tribunal.[2]
[1] The latest edition of the Guide is Edition 2.1.
[2] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 28(4).
Issues
The issues are whether Mr Odell:
·Continues to suffer from the accepted injury to his left leg;
·Has suffered any impairment as a result of the injury;
·Has an impairment which is permanent, that is, is likely to continue indefinitely, as a result of the injury;
·Is suffering an impairment which results in a compensable whole person impairment in accordance with the Guide; and
·Is suffering compensable economic loss due to the injury.
Consideration
Mr Odell has an injury to the lower extremity of his left leg which was accepted by Comcare in January 2011 under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act).
Continues to suffer from the accepted injury to his left leg
Mr Odell’s statement said that after 17 April 2012 he is unable to apply full weight on his left knee cap, was ‘no longer able to kneel’, had a sharp pain in his knee when he kneels, and he has a ‘constant dull ache’ whenever something comes into contact with the side of his left leg or knee.
Plain x-rays subsequent to the injury show that the operation was successful. The penultimate x-ray of 21 March 2012 concluded that ‘The fractures of the distal shaft of the tibia and the proximal shaft of the fibula appear to have healed in good position with no complications’. The finding that the fractures have knitted was noted in reports of Dr Smith on 5 February 2013, by Dr Davis, in his report of 13 August 2013, and by Dr Cairns, in his report of 29 August 2013.
Despite his fractures having knitted, Mr Odell claims he continues to suffer from the effects of the injury. The reports, in brief, of the medical specialists on this issue are as follows:
·Dr Tsai, in his final report of 30 April 2012, said that Mr Odell was ‘doing very well, was able to bend the knee without pain, and contemplated a return to jogging’.
·Dr Smith, in a report dated 5 February 2013, noted that the fractures had healed and ‘should leave no disability whatsoever’. He noted, however, that Mr Odell continues to suffer discomfort in his left kneecap and at the site of the screws in the left ankle, and that Mr Odell cannot kneel or squat very well. He said ‘clinically Mr Odell has the beginnings of osteoarthritic change affecting his knees. However, his knee arthritis would have been aggravated under the circumstances, especially the tibial nail’. He recommended this be explored in further x-rays.
·Dr Deery, in a report dated 4 December 2012, certified that although Mr Odell’s injury had healed, it ‘had led to worsening of pre-existing condition leading to current level of disability’.
·Mr Laffrey, physiotherapist, in an assessment report dated 22 March 2012, noted Mr Odell’s current limitations were ‘unable to run, kneel, work on car or renovate house’, and that he was unable to kneel on left knee, and had difficulty balancing on his left leg but was improving.
·Ms Winbom, in a report dated 21 August 2012, noted that Mr Odell had ‘improved walking tolerance and walking pattern’ and he had ‘attempted to commence running but he has experienced anterior, distal shin pain’.
·Dr Davis in his report of 13 August 2013 said that Mr Odell’s disability had reached maximum medical improvement. He noted that Mr Odell was unable to kneel or squat, but that he had ‘normal muscle power without evidence of muscle wasting or muscle spasm’, and ‘no evidence of joint effusion or soft tissue swelling’, that he had ‘full [and unrestricted] extension’, and normal motor function. He recorded a pain level between 2/10 and 6/10, relieved by rest. He endorsed Dr Smith’s call for x-rays to explore the possibility of a constitutional degenerative condition of both knees and whether this had been aggravated by the injury.
·Dr Cairns in his 4 September 2013 report noted that Mr Odell had ‘a slight residual restriction of movement at the left ankle’ and ‘possible apparent relative wasting of the left leg’ and that his ‘left foot [is] slightly externally rotated’. He also noted that the circumference of the left thigh was 1.5cm less than the right, and that of the left leg was 0.5cm less than the right, but there was no sign of leg length discrepancy. He had earlier noted that ‘proprioception was relatively poor at the right ankle, very poor on the left’, proprioception being a person’s awareness of balance and the position of muscles, tendons and joints in relation to ‘the outside world’.[3] He concluded there were no other objective clinical findings to support ‘intra-articular damage to his left knee, nor is there any objective finding to suggest that he is suffering from “constitutional osteoarthritis”’. Following receipt of the x-rays of Mr Odell’s knees, Dr Cairns maintained this view in his 20 November 2013 report.
[3] Dr Harvey Marcovitch Black’s Medical Dictionary (42nd end, 2010), 544.
Mr Odell has had a clinically successful operation to resolve the multiple fractures of his lower left leg. The imaging has indicated that the fractures have successfully knitted following treatment. Nonetheless, Mr Odell continues to experience episodic pain and impairment to his ability to run, cycle, and when he squats or kneels. He also has been left with sensitivity to touch in his left lower leg, a view supported by Dr Davis and Dr Cairns. Both physiotherapists, in reports in March and August 2012 respectively, accepted he had residual pain and had not recovered fully.
Dr Davis had hypothesised that the residual pain may have been due to a constitutional arthritic condition of both knees, a hypothesis also raised by Dr Smith. The x-ray dated 5 September 2013 found ‘no features of any specific knee joint arthropathy’, that is, joint arthritis, in any of Mr Odell’s right or left knees, or right or left ankles. The report noted ‘There is some wire in the lower tibia at its lateral aspect which will have been from the previous K nail internal fixation’. The report also noted ‘The fracture of the lower tibia appears to have healed in a satisfactory position’.
Accordingly, the hypothesis was discounted following the X-ray in September 2013 which showed no arthropathy of knees or ankles. Dr Cairns, who had seen the X-ray, concluded there was no objective evidence to support constitutional arthritis.
Dr Smith noted that it was not unusual for people to continue to experience some discomfort from time to time for up to two years after an operation, that is, until sometime in 2014, but only concluded that the healed fractures ‘should leave no disability’.
Dr Cairns also suggested in his September 2013 report that Mr Odell had not yet managed a full recovery, noting the objective effects of his condition ‘will likely cease’ but that the poor proprioception in his left ankle and to an extent his right ankle, coupled with the loss of bulk power in his thigh still required remedial work. As he said at the hearing, however, ‘he should recover’. At the same time, he noted ‘a degree of biopsychosocial potentiation’ in Mr Odell’s presentation. As he said at the hearing, Mr Odell was inordinately concerned about the possibility of a recurrence of a physical injury and of his negative psychological reaction to that event. The Tribunal notes a level of doubt about the continuation of his condition in the views of Dr Cairns and Dr Smith.
The Tribunal accepts that Mr Odell continues to have some objective residual effects of the injury, namely, loss of bulk in his left thigh and to a lesser extent, his lower left leg, poor proprioception in both ankles, particularly the left, heightened sensitivity to touch in the lower left leg, and pain. So although the fractures have knitted, Mr Odell is left with some physical deficiencies, and with pain. The loss of muscle strength and bulk in his left thigh – the view of Dr Cairns which the Tribunal accepts – may be due to disuse, but is indicative of the pain Mr Odell experiences and his avoidance of activities which lead to pain.
No medical expert commented on the September 2013 x-ray’s reference to the retention of some wire in Mr Odell’s ankle. So although the nails and screws which were a source of pain have been removed, there is the presence of wire in his ankle which remains and the Tribunal notes this may be a source of pain. Dr Davis in the hearing acknowledged that the wire ‘could certainly affect pain levels’, although Dr Cairns in response to a question from the Tribunal said the wire ‘did not appear to be interfering with his ankle’. Despite Dr Cairns doubts, and given the views of Dr Davis and the objective disabilities still experienced by Mr Odell, the Tribunal finds that he does continue to suffer some symptoms from the accepted injury in his left leg, symptoms which may in part be explained by the retention of some wire at the site of the surgery.
Impairment
The Act defines ‘impairment’, to mean: ‘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’. The definition is a broad one.
Mr Odell says he has continuing restrictions on kneeling, cycling, walking, and jogging. In other words, Mr Odell’s view is that he is suffering a continuing impairment. However, the Tribunal observes that Mr Odell, according to his evidence and to Dr Cairns is anxious about injuring himself again and hence restricts his physical activities to reduce reliance on his left leg and minimise the risk of any further injury. He regularly takes days off work to recover physically and reduce any build-up of pain and has extended periods when he does not work. He says he has permanently lost full movement in his left ankle and knee and that he is unable to fully turn his left ankle in and out and raise it up and down.
The medical reports indicate as follows:
·Dr Tsai reported after the removal of the tibial nail and screws that Mr Odell was able to bend his knee without pain, and had reported he was considering returning to jogging ‘straight away’. That report, dated 30 April 2012, has not been updated, but indicates an absence of impairment in the eyes of the surgeon at the time of the second operation;
·Dr Smith, in his report of 5 February 2013, indicated ‘he would expect no significant abnormality’. His opinion was that although Mr Odell might have ‘another 12 months’ worth of symptoms’ he did not consider he would be left with impairment. However, he also noted that his ‘Knee arthritis would have been aggravated under the circumstance described, especially the tibial nail’ and that he was’ likely to have problems with both his knees in the future’. Dr Smith found that Mr Odell walked with a normal gait, there was no wasting in either lower limb, there was no leg length inequality or shortening, and no malrotation, both knees had a full range of flexion, and his ankles and knees exhibited a normal range of movement.
·Dr Davis, in his report of 13 August 2013, said that Mr Odell was ‘unable to kneel and squat’. At the same time he noted ‘normal muscle power without evidence of muscle wasting or muscle spasm … no evidence of joint effusion or soft tissue swelling’, normal motor function, and no ‘significant sensory loss of the left lower extremity’. His clinical findings were absence of any ‘significant’ impairment, except the presence of surgical scars in the upper part of the lower leg’ and some slight loss of flexion. That suggests he accepted there was some sensory loss in the lower left leg and minimal loss of flexion.
·Dr Cairns found some ‘possible apparent relative wasting of the left leg, the left foot slightly externally rotated’, and ‘some difficulty balancing on his left leg when heel walking and central left ankle pain with toe walking’. He also noted ‘Proprioception was relatively poor at the right ankle, very poor on the left’. Range of motion was equal for both knees. His report indicated some level of impairment due to the residual effects of the injury. With respect to the fractures, Dr Cairns said Mr Odell ‘should enjoy a good prognosis, with little or no prospect of long-term impairment’.
On balance, and in the light of the medical evidence of Dr Smith, Dr Cairns, and to a lesser extent, Dr Davis, the Tribunal is satisfied on the medical evidence coupled with the evidence of Mr Odell that he has been left with some level of loss of use and malfunction of his lower left leg consequent on the injury. In other words he has some residual impairment.
Is the impairment permanent, that is, is likely to continue indefinitely?
Mr Odell considers he has ‘permanently lost full movement in his left ankle and knee and is unable to fully turn in and out and raise up and down my left ankle’. He also said he has ‘a complete inability to kneel or apply weight on knee cap as this causes sharp pain and distress’. Dr Deery in a report dated 4 December 2012, noted ‘permanent limited use of lower left leg, ongoing pain to continue indefinitely’, rated as 3, that is, ‘Episodes of pain more persistent. Not easily tolerated. Treatment, if available, is of limited benefit’.
Dr Smith’s view was that there was ‘no likely permanent impairment’. He said it is ‘not uncommon for people to have aches and pains continuing from time to time for anything up to two years down the track from their last operation’, but he did not discount the possibility that Mr Odell might have some long-term impairment.
Dr Cairns’s said that Mr Odell’s presentation as at August 2013 showed he did ‘not have an assessable permanent impairment’ resulting from the injury. He said the objective effects of the accepted conditions will ‘likely cease, and should have done so by this stage’. His subsequent report after viewing the x-rays of September 2013 did not cause him to change his mind.
Dr Davis’s view, in a report of 13 August 2013, was that he was unable to comment on whether there was permanent impairment until he had seen further x-rays. However, he had earlier expressed the view ‘his disability … has reached maximum medical improvement without any further developments’ suggesting that he considered the condition to be permanent. That is confirmed in his supplementary report of 6 March 2014, when he was prepared to provide an assessment of whole person impairment.
The Tribunal considers the views of the medical specialists are almost equally divided at this stage, but those who said he should have no permanent impairment (Dr Smith and Dr Cairns) also expressed doubts about their opinion. On balance, the Tribunal’s view is that given the injury occurred at the end of 2010, with further surgery in April 2012, that is, four and two years ago, and Mr Odell still has a significant degree of pain and of disability, he does have a permanent impairment from his injury.
If permanent, does his injury result in a compensable whole person impairment in accordance with the relevant tables in the Guide, and is so, has he suffered economic loss?
The Table in the Guide relied on by those who assessed Mr Odell is Table 9.7. For a ten per cent impairment under that table, the major criteria of which at least one must be established are:
·Walks at a normal pace in comparison with peers on level ground but is unable to negotiate uneven ground without use of a walking aid or personal assistant; or
·Walking is restricted to 500m or less (may be able to walk further after resting).
Minor criteria (at least one of which must be established) are:
·Legs give way or lock occasionally without causing falls;
·Is unable to negotiate three or more stairs or a ramp (up and down) without use of a walking aid or hand rails;
·Is unable to rise from sitting to standing position without use of one hand but can stand without support.
Mr Odell said he can no longer run, cannot ‘walk more than 500 metres at a time without pain’, needs a handrail to climb ‘more than 3 stairs’, experiences pain if he walks up or down slopes, and is ‘severely restricted in [his] ability to cycle’.
Dr Smith offered no view as to whole person impairment. Dr Deery did not give a percentage impairment. Dr Davis found that under Table 9.7, Mr Odell’s injury indicated a whole person impairment of 10 per cent and, as he said, ‘using the TEMSKI [the Table for the Evaluation of Minor Skin Impairment, an extension of Table 2 (p 280, AMA 4 Guides]’, he found a 10 per cent impairment, and for scarring, he added a further 1 per cent whole person impairment giving a total of 11 per cent whole person impairment.
At the hearing, when asked how he assessed Mr Odell’s level of impairment against the criteria in the relevant tables, Dr Davis said it was impracticable to test him physically so he relied on what Mr Odell had told him and what was in Mr Odell’s statements. He also noted that he had not had the Guide with him at the time he wrote his report of August 2013.
Dr Cairns said as he found no permanent impairment he did not assess Mr Odell under the relevant tables in the Guide. In any event, he said he did not usually undertake field testing, although he would have done so had Mr Odell said he had difficulties doing the things listed as criteria in the relevant tables in the Guide. He disagreed with Dr Davis’s whole person assessment of 10 per cent as he could not find support from his report for that finding. In particular he said Mr Odell’s current employment in a self-employed landscaping business suggests he could negotiate uneven ground without use of a walking aid or personal assistant. He also disagreed with Dr Davis’s findings on the TEMSKI scale on the basis that ‘Mr Odell’s residual scarring [did not] adequately fulfil the criteria attracting 1 per whole person impairment’. He also noted that pain is not taken into account when deciding levels of impairment. He acknowledged that the effect of the injury was to result in muscle weakness, but he did not find physical limitations.
Although Dr Davis found Mr Odell had an 11 per cent whole person impairment, he had based that assessment solely on Mr Odell’s statements and had not tested him under the criteria in Table 9.7 in the Guide. Dr Davis’s view was strongly denied by Dr Cairns based on Dr Cairns’s clinical judgment, his physical examination of Mr Odell, the nature of his employment and his finding that psychosocial issues affect Mr Odell’s perceptions of pain and are self-limiting. Mr Odell’s fear of re-injuring himself, which supports the view of Dr Cairns about the psychosocial elements in Mr Odell’s perceptions were also based on evidence before the Tribunal from Mr Odell. Dr Cairns’s view was not discredited during cross-examination and the Tribunal prefers his view to that of Dr Davis.
There is no evidence that Mr Odell cannot negotiate uneven ground without use of a walking aid or personal assistant. Mr Odell said he met one of the major criteria, namely, that his walking is restricted to 500m or less. He gave as evidence that he can no longer walk up Mt Ainslie with his children. However, that assertion was not tested by either of the medical specialists, walking up Mt Ainslie is not walking on level ground, and the Tribunal cannot be satisfied that he meets that criteria. That means Mr Odell’s claim does not meet the most relevant table in the Guide for a ten per cent impairment.
Conclusion
Accordingly, that means that Mr Odell has been unsuccessful and the decision under review is affirmed.
I certify that the preceding 52 (fifty- two) paragraphs are a true copy of the reasons for the decision herein of RM Creyke, Senior Member ......................[sgd]..................................................
Associate: Sarah Wardell
22 August 2014
Date of hearing 28 May 2014 Date final submissions received 30 June 2014 Counsel for the Applicant Allan Anforth Advocate for the Applicant Daniel Steiner Solicitors for the Applicant Capital Lawyers Counsel for the Respondent Sophie Callan Advocate for the Respondent Luke Woolley Solicitors for the Respondent Sparke Helmore
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