Edwards v Territory Insurance Office

[2009] NTSC 6

Edwards v Territory Insurance Office [2009] NTSC 6

PARTIES:	EDWARDS, MALCOLM
v
TERRITORY INSURANCE OFFICE
TITLE OF TRIBUNAL:	MOTOR ACCIDENTS (COMPENSATION) APPEAL TRIBUNAL
JURISDICTION:	APPEAL PURSUANT TO S 29 MOTOR ACCIDENTS (COMPENSATION) ACT NT
FILE NO:	M1 of 2008 (20801497)
DELIVERED:	5 March 2009
HEARING DATES:	15 – 19 December 2008
DETERMINATION OF:	ANGEL J
REPRESENTATION:
Counsel:
Applicant:	Ms S Gearin
Respondent:	Ms J Kelly SC

Solicitors:

Applicant:	Withnalls
Respondent:	Minter Ellison

Judgment category classification: C

Judgment ID Number:	Ang200902
Number of pages:	12

IN THE MOTOR ACCIDENTS

(COMPENSATION) APPEAL TRIBUNAL

DARWIN REGISTRY

Edwards v Territory Insurance Office [2009] NTSC 6

No. M1 of 2008 (20801497)

BETWEEN:

MALCOLM EDWARDS

Applicant

AND:

TERRITORY INSURANCE OFFICE

Respondent

CORAM:  ANGEL J

REASONS FOR DETERMINATION

(Delivered 5 March 2009)

1. This is a reference pursuant to s 29 Motor Accidents (Compensation) Act

   NT from a decision of the Territory Insurance Office Board dated

   17 December 2007 upholding a decision dated 28 April 2007 of the

   designated person that the applicant Malcolm Edwards was not entitled to

s 13 benefits from 28 February 2007 because he was capable of engaging in
full time employment. The hearing of the reference is a hearing de novo:

s 29(4).

1. The applicant sustained a comminuted fracture of the right patella as a result

of a motor vehicle accident at Palmerston on 12 December 2002. Following
the accident his knee was internally fixed. It continued to cause him

difficulties and he was referred to Dr Sharland an orthopaedic surgeon.
In September 2003 Dr Sharland performed an arthroscopy on Mr Edwards’

knee and removed two wires. Dr Sharland saw the applicant again in

November 2003, December 2003 and December 2004.

1. On 5 May 2003 the applicant applied for benefits under the Motor Accidents

   (Compensation) Act. The respondent accepted the applicant’s claim on

   15 May 2003 and the applicant was paid benefits for the loss of earning

   capacity pursuant to s 13 of the Act from that date.

2. On 4 January 2005 at the request of the respondent Dr Sharland provided the

respondent with a medico–legal report concerning the applicant’s level of
impairment. He said, inter alia:

“Mr Edwards is suited to a sedentary occupation where he can change position on a regular basis as prolonged sitting is also exacerbating to his condition.

He is able to perform a light manual job if he can alternate between sitting and standing as he cannot stand for more than two hours without significant pain.

He is unable to perform medium or heavy physical jobs. He cannot perform any lifting. He cannot squat. He cannot climb stairs.”

1. Earlier, on 3 February 2004 at the request of the respondent the applicant

   had seen another consultant orthopaedic surgeon Dr Lewis. Dr Lewis

   provided the respondent with a report dated 5 February 2004 wherein he

   said:

   “He (the applicant) could perform work, which did not involve
   standing for lengthy periods, walking further than 200 metres or so
   or squatting and kneeling and going up or down stairs.”

2. Dr Lewis saw the applicant again on 16 August 2005. The applicant told

   Dr Lewis that the pain in his right knee was more severe than it had been

   18 months before, that it was present virtually all the time and made worse

   by walking, standing or sitting, that he could walk for approximately half a

   kilometre but then suffered significant pain in his knee and that he could not

   run or walk quickly.

3. In early 2006 the respondent obtained a short surveillance video of the

applicant playing cricket in his yard with his children, walking out on the
road. This was sent to Dr Sharland who was asked for a further opinion on
the applicant’s capacity for employment. Dr Sharland reported that the video

indicated there had been some slight exaggeration on the applicant’s part in

terms of how far he could walk and an inability to walk quickly but that he

was not inclined to change his assessment in broad terms from that given in
his previous report.

1. In April 2006 the respondent sent Dr Sharland another brief surveillance

video and requested a further opinion on the applicant. Dr Sharland replied
in a report dated 20 April 2006 that the video was consistent with his earlier

opinions which he summarised as follows:

“I stated that Mr Edwards can work on a full time basis in a
sedentary occupation, or a light manual job that he can alternate
between sitting and standing, as he has difficulty standing for more
than two hours without significant pain.
I stated he was unable to perform medium or heavy physical jobs.

That remains my current position, and certainly not that he is totally unsuited to any work.”

1. On 28 February 2007 Dr Sharland saw the applicant again and provided the

respondent with a report dated 7 March 2007 wherein he expressed the
opinion that the applicant “had the capacity to do many of the jobs” which
Denise Dixon, a psychologist who performs vocational assessments, had

listed as suitable for the applicant, taking into account his areas of interest.

Among those jobs was stock control clerk (provided the applicant could

alternate between sitting and standing) service station attendant, accounts
receivable clerk, security officer, car park attendant, maintenance scheduler
(if the applicant could get up and down), registry or filing clerk, purchasing

officer and courier driver (as long as the packages were very light, less than
two kilograms). On 28 March 2007 Dr Sharland certified the applicant as
currently medically fit for full time employment in certain very light
(sedentary) occupations.

1. By a decision of the designated person made on 28 April 2007 the

respondent determined that applicant was not entitled to s 13 benefits from
28 February 2007 on the basis of the medical assessments obtained by the

respondent that the applicant was capable of engaging in full time
employment. The applicant requested that the matter be referred to the
Board which on 17 December 2007 confirmed the decision of the designated

person.

[11]   In October 2007 the applicant’s solicitors referred the applicant to

Dr Millons, an orthopaedic surgeon who saw the applicant on 16 October

2007. During that consultation the applicant told Dr Millons:

(a) that the applicant needed a walking stick when home and out and about;

(b) that he could barely walk one block before having to have a spell;

(c) that his right knee was “always painful”;

(d) that he had problems negotiating stairs and slopes;

(e) that he could not drive very far;

(f) that he still tried to walk and swim a few times a week.

1. Dr Millons concluded that the applicant’s knee problems “would restrict him

   to working in a suitable capacity perhaps four hours a day and then only if

   the position was suitable”.

2. On 31 March 2008 the applicant saw Dr Geoffrey Graham at the request of

   his solicitors. In his report of 8 April 2008 Dr Graham said the applicant

   “can undertake positions which are primarily sedentary but which enable

   him to move about should his knee symptoms increase”. Dr Graham said

that jobs as stock control clerk (if the applicant had an opportunity to sit and
rest when necessary), accounts receivable clerk (if he is able to vary his
position), car park attendant (if it involved cashier duties within a booth

with the ability to vary his posture), maintenance scheduler, registry or
filing clerk and purchasing officer were appropriate jobs for the applicant.

Dr Graham said that the applicant could work full time as an accounts

receivable clerk, maintenance scheduler, registry or filing clerk or
purchasing officer.

1. In August 2008 the respondent arranged for the applicant to be seen by

   Dr Phillips, a consultant orthopaedic surgeon. The applicant saw Dr Phillips

on 7 August 2008. In his report of 19 August 2008 Dr Phillips said the
applicant presented with a stiff legged gait on the right, a marked lean or
falling to the left whilst using a walking stick on which he leaned heavily,

and that to Dr Phillips the applicant’s gait derangement was unusual and
exaggerated. Dr Phillips agreed with Dr Sharland’s assessment of the
applicant’s capacity for work.

1. The respondent arranged for a Mr Harris of Western Investigations to

conduct covert surveillance on the applicant and to take video footage.
Video footage was taken on 3, 4 and 5 October 2008. On each day the

applicant walked a route that took him from his house in Driver Avenue,
Palmerston up to shops in the same street, back down Driver Avenue,

through a park, along Erldunda Avenue, University Avenue, Chung Wah

Drive, Temple Terrace, Tilston Avenue, back along the other end of

Erldunda Avenue, back through the park and along Driver Avenue to his

house. The route was a little over seven kilometres. It involved a number of
up hill and down hill segments and a set of stairs leading up to a rotunda
where he met his son. He did not appear tentative or use a stick and walked
briskly at times. The video footage showed the applicant driving to a service

station and to the hospital. He did not use or carry a stick at the service
station but did so at the hospital. He got into and out of the car bending both
knees to approximately 90 degrees.

1. On 8 October 2008 the applicant saw Dr Sutcliffe an experienced

occupational physician. He presented with a walking stick and walked with a
limp. He told her that:

(a)	he continues to use walking stick constantly;
(b)	he continues with medication for pain which is constantly present;
(c)	he had pain in the anterior of his right knee at an intensity of seven on a

scale of nought to ten where nought is no pain and ten is the worst pain

imaginable;

(d)	the pain increased to an intensity of nine at times;
(e)	the pain was sharp and throbbing in nature;
(f)	the pain decreases only when lying down;
(g)	there is increased pain on walking and sitting;
(h)	the pain in his right knee is increased with activity and standing is

limited to ten minutes as a result;

(i)      walking is also limited and results in increased pain;

(j)	sitting is limited to 30 minutes;
(k)	he avoids using stairs and has in the past noted increased pain so that

he cannot get up stairs;

(l) his knee has given way coming down stairs;

(m) he has similar difficulty with slopes;

(n)	driving is limited to short distances locally;
(o)	he is able to undertake a little swimming and can use a treadmill with

handrails for limited period.

1. Dr Sutcliffe concluded that the applicant “has no capacity for full time

employment and … his employment must now be limited to about four hours
a day, and must be very substantially restricted in nature”.

1. The respondent concedes that the applicant has suffered a loss of earning

   capacity as a result of the admittedly severe injury to his knee.

2. The applicant is a 40 year old former mechanic and stevedore. He is an

   insulin dependant diabetic, having been first assessed as diabetic at the age

of five. As a consequence of the injuries he sustained in the motor vehicle
accident he is unable to kneel, unable to squat, unable to sit or stand or drive
for prolonged periods, suffers periodic pain and swelling in his knee and

needs at times to take prescription pain killing medication (panadene forte)
and anti inflammatory medication, the former up to a maximum of eight
tablets per day. All the medical practitioners who gave evidence,

Dr Sutcliffe, Dr Sharland, Dr Phillips, Dr Graham and Dr Millons agreed

that the applicant suffered a serious injury to his right knee.

1. The respondent’s concession that the applicant has suffered a loss of earning

   capacity does not necessarily mean compensation is payable. Compensation ordinarily payable pursuant to s 13(1) Motor Accidents (Compensation) Act is by reason of s 13(2)(b)(ii) not payable for any weekly period that the

   Board determines the person is capable of working full time, regardless of

   the type of work. The respondent says the applicant is not entitled to

compensation pursuant to s 13(1) because during the relevant period he was
capable of working full time. The issue for determination is whether the
applicant was capable of working full time at some occupation “regardless
of the type of work”. If so, he is thereby ineligible for benefits.

1. It was submitted that the designated person on 28 April 2007 could not

   determine that the applicant was not entitled to s 13 benefits from

   28 February 2007. It was submitted that this was an “unlawful retrospective

   cancellation of benefits”.

2. There is no substance in this submission. Section 13(2)(b)(ii) provides that

   compensation is not payable under s 13(1) for “any weekly period that the Board determines the person is capable of working full time, regardless of

the type of work”. There is no reason to think the relevant weekly period can
not be a weekly period preceding the date of determination. There is no
reason why the decision of the designated person should not be retrospective
in the sense of stating that the entitlement to benefits ceased on a date prior

to that determination. Even if there were a defect in the decision of the

designated person such defect would be rendered irrelevant by the decision

of the Board and in any event by the reference to this Tribunal. The hearing by the Tribunal, as I have said, is a hearing de novo, the Tribunal having to

determine whether for “any weekly period” the applicant is or was capable

of working full time regardless of the type of work.

1. Having considered all the evidence I have reached the conclusion that the

   applicant, while suffering residual physical limitations as a consequence of his serious injury, does not suffer physical limitations such as to render him

   incapable of performing the flexible sedentary jobs described by the witness

   Mr Williams (security guard in a static guardhouse) and Mr Neil (Darwin

   City Council clerk) on a full time basis. Nor would the applicant’s residual

   disabilities preclude him from the occupations of maintenance scheduler,

   registry or filing clerk or purchasing officer.

2. A medical assessment of a person’s earning capacity for the purposes of s 13

must only have regard to residual disabilities arising from the accident and
not factors such as the availability of employment or the person’s level of
education, vocational skills, numeracy and literacy skills or employment or
other experience: s 4(c) of the Motor Accidents (Compensation) Amendment
Act 2002.

1. The preponderance of the medical evidence is that the applicant would be

   physically capable of full time employment in the jobs I have mentioned.

   I am unable to accept Dr Sutcliffe’s conclusion that the applicant has or had

   “no capacity for walking” in an occupation. I am of the opinion the

applicant has exaggerated his disabilities and that Dr Sutcliffe’s apparent
reliance upon his account renders her conclusion unreliable.

1. I do not accept the applicant’s evidence that he has “good” and “bad” days,

   “good days”, when he can walk seven kilometres, and “bad days”, when he

   is in severe pain and badly disabled. That evidence, as was submitted, is

contradicted by what he consistently told medical practitioners over a
number of years and his use of and evidence about using a walking stick.
It is inconsistent with his evidence that the pain in his knee was usually

seven on a scale of nought to ten at times increasing to nine. It is
inconsistent with his walking seven kilometres on three successive days and

his story that he always used a walking stick. Significantly, he did not

mention “good” days and “bad” days to doctors. Nor did he mention his
seven kilometre walks to doctors. The inconsistencies between the
applicant’s account to doctors of his walking ability, the very limited
flexion of which he said he was capable both to doctors and to the Tribunal

when giving evidence and the flexion demonstrated in the video surveillance
footage of him getting into and out of his car indicate that the applicant has

grossly exaggerated his level of pain and disability.

1. Dr Sutcliffe gave evidence that she wondered whether the applicant was

suffering from some cognitive deficiency. I must say the applicant at times
when giving evidence appeared somewhat slow mentally and to have
intellectual difficulties. There was no psychological evidence called.

The applicant, while claiming to be always in pain, called no evidence to

suggest he suffered from chronic pain leading to adverse psychological
consequences which rendered him unfit for employment.

1. The Tribunal determines that the applicant is and has been since the date

   determined by the designated person capable of engaging in full time

employment. Accordingly he is not entitled to compensation by reason of
s 13(2)(b)(ii) of the Act.

__________________________