Gary Sinclair and Military Rehabilitation and Compensation Commission

[2014] AATA 304

Division Veterans' Appeals Division

File Number

2013/1700

Re

Gary Sinclair

APPLICANT

And

Military Rehabilitation and Compensation Commission

RESPONDENT

Decision

Tribunal
Deputy President S D Hotop

Date 16 May 2014

Place Perth
The decision under review is set aside and, in substitution therefor, it is decided that no amount of permanent impairment compensation is payable to the applicant under s 68 of the Military Rehabilitation and Compensation Act 2004 (Cth) in respect of his accepted conditions of “atrial fibrillation”, and “left knee medial meniscal tear and varus malalignment” and “arthrodesis of the tibiofibular joint”.

..........................[sgd].........................
S D Hotop
Deputy President

CATCHWORDS
COMPENSATION – military compensation – respondent accepted liability under Safety, Rehabilitation and Compensation Act 1988 (SRC Act) to pay compensation to applicant for left knee condition – respondent paid applicant lump sum compensation for permanent impairment resulting from left knee condition – respondent accepted liability under Military Rehabilitation and Compensation Act 2004 (MRC Act) to pay compensation to applicant for atrial fibrillation – determination of amount of permanent impairment compensation payable to applicant for atrial fibrillation – offsetting amount of permanent impairment compensation paid to applicant under SRC Act for left knee condition – respondent determined that amount of permanent compensation payable to applicant under MRC Act – Tribunal determined that no amount of permanent impairment compensation payable to applicant under MRC Act – decision under review set aside
Legislation
Military Rehabilitation and Compensation Act 2004 (Cth), s 67 and s 68

Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 (Cth), s 13

Safety, Rehabilitation and Compensation Act 1988 (Cth), s 24

Guide to Determining Impairment and Compensation (GARP M), Chapters 1, 3, 15, 17, 18, 22, 23 and 25

Cases
James v Military Rehabilitation and Compensation Commission (2010) 186 FCR 134
REASONS FOR DECISION
Deputy President S D Hotop
16 May 2014
Introduction

Gary Sinclair (“the applicant”), who was born in January 1962, served in the Royal Australian Navy (“RAN”) from 23 August 2002 to 1 May 2006. On the latter date he was retired from the RAN on the ground of invalidity by reason of physical impairment resulting from chronic left knee pain.
The Military Rehabilitation and Compensation Commission (“the respondent”) has accepted liability under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) and the Military Rehabilitation and Compensation Act 2004 (Cth) (“MRC Act”) (as the case may be) to pay compensation to the applicant in respect of the following relevant conditions:
·a left knee condition, namely, “left knee medical meniscal tear and varus malalignment” and “arthrodesis in the tibiofibular joint” (under the SRC Act);
·a cardiac condition, namely, “atrial fibrillation” (under the MRC Act).
The applicant claimed, and was paid, compensation under the SRC Act for permanent impairment resulting from his accepted left knee condition, and he also claimed, pursuant to the MRC Act, compensation for permanent impairment resulting from his accepted “atrial fibrillation” condition.
The respondent made a determination on 5 September 2012, and subsequently a “reviewable decision” on 19 February 2013, under the MRC Act that the applicant was entitled to an amount of permanent impairment compensation in respect of the abovementioned conditions.
The applicant, however, is dissatisfied with the amount of permanent impairment compensation so determined and has applied to the Tribunal for review of the “reviewable decision” of 19 February 2013.
The Evidence
The evidence before the Tribunal comprises the “T Documents” (T1–T58, pp 1–404) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) and:
·supplementary documents (ST1–ST13, pp 1–48) filed by the respondent (Exhibit R1);
·Exhibit A1 tendered by the applicant;
·Exhibits R2–R6 tendered by the respondent; and
·the oral evidence of the applicant, Mr John Hill, and Dr Vincent Paul.
The Relevant Legislation
Section 24 of the SRC Act and s 68 of the MRC Act provide for the payment of compensation for permanent impairment resulting from compensable injuries.
Pursuant to s 67 of the MRC Act the respondent has determined the “Guide to Determining Impairment and Compensation” (“GARP M”) whereby the degree of impairment of a person resulting from a service injury or disease, and the amount of compensation payable to that person therefor, are assessed. Relevant chapters and tables in GARP M will be referred to later in these reasons.
The Applicant’s Evidence
The applicant tendered in evidence his witness statement, filed on 21 January 2014, and he confirmed that its contents are true and correct and that he did not wish to add to those contents. That statement is as follows:
“ I transferred from the Royal Canadian Navy to the Royal Australian Navy on 23 August 2002 and injured my knee in September 2002. I was medically discharged released [sic] from the RAN on 1 May 2006.
Prior to my discharge, my accepted conditions had a severe impact on my career. The immediate impact of my accepted conditions was that I was classified as ‘Unfit for Sea’ by the RAN and was therefore unable to complete a posting to an RAN operational ship as a Principal Warfare Officer (PWO). All of my RAN annual assessments stated that because I had not completed a posting as a PWO I was unsuitable for promotion. In comparison, other RAN officers who transferred from other commonwealth navies have successfully been promoted to Commander or higher.
I raise the above points because I was forced to find alternative employment in the civilian sector. This was a very stressful period, I had not been in Australia long enough to establish a professional network, I did not have the funds to return to Canada and there were very few positions available that matched my skill set. I was fortunate to obtain employment with Raytheon Australia on the RAN’s Air Warfare Destroyer project; however the compensation package was less than my previous RAN compensation. It should be noted that if I had remained in the RAN, and even if I had not been promoted, I would currently have a compensation package of $195, 994. This is considerably greater than my current compensation package. In addition I would have been eligible in 2007 for a PWO Retention bonus of between $6000 and $10,000 and a separate Critical Personnel retention bonus of $50,000.
I have three main accepted conditions; a knee condition (which includes two accepted conditions), Atrial Fibrillation, and Type II Diabetes.
Knee Condition
My knee condition causes me to suffer from persistent pain. The knee is arthritic which results in my knee becoming stiff and it is noticeably more painful in the mornings. The pain is also aggravated if the weather is cold or damp.
My knee has impacted my lifestyle by limiting my ability to walk and the type of terrain I can walk on. I have difficulty with stairs, ladders and uneven surfaces. My knee has deteriorated to the point that it becomes increasingly painful when I walk short distances at a slow pace.
My knee impacts many of the activities that I previously enjoyed; most notably I find it very painful to do any sort of activity that requires me to kneel. If I overdo any activity my knee will be very painful and swollen for several days.
My knee causes me to walk with a noticeable limp.
My knee also becomes stiff and painful after I drive my car. I avoid driving my manual car in the city because excessive use of the clutch causes me pain in my left knee.
The knee pain affects my sleeping ability and results in me becoming cranky.
Atrial Fibrillation
My Atrial Fibrillation has a severe impact on my quality of life. I suffer an average of 2-3 episodes per week and each episode lasts in excess of four hours. Usually the first 30 minutes or so of an attack are the most intense and result in me becoming dizzy, light-headed, sweating and having a feeling of nausea. During this 30 minute period I am forced to cease all activities and sit down. If I do not cease all activities I will pass out. After the initial period has passed I normally have a reduced level of symptoms, normally a feeling of unease and a noticeably irregular heartbeat; however if I attempt to increase my activity level, for instance walking slowly up a flight of stairs, it will cause me to again become dizzy and light-headed etc. My attacks of AF are primarily caused by mild physical exertion.
I also suffer from side effects from my medication because it makes me tired and results in me falling asleep in meetings and at home watching TV.
Social Impairment:
As previously stated, my attacks of AF cause me to cease all activities and sit down. While I do not avoid public places because of fear of an attack, I find that if an attack occurs I feel very distressed and embarrassed.
Personal Relationships:
The impact of my accepted conditions on my personal relationships is varied. During an attack of AF I find it extremely difficult to interact or communicate with anyone. On a very personal level I have suffered an attack of AF while having intercourse; additionally my knee condition impacts my sexual enjoyment.
Mobility:
When I am suffering an AF attack and am forced to sit down, I am severely restricted in my mobility. My knee condition also restricts my mobility.
Recreational and Community Activities:
I am unable to participate in the same range of activities due to knee pain and limiting my exertion in order to prevent an AF attack. When I am suffering from an AF attack I am unable to take part in any recreational activities.
Domestic Activities:
I am limited in my household activity to a very small range of light tasks. Routine tasks such as preparing dinner have triggered an AF attack. When I am suffering from AF I am unable to carry out any tasks.
Employment Activities:
As previously stated, my accepted conditions have resulted in me being medically discharged from the RAN.” (Exhibit A1)
In cross-examination the applicant gave evidence to the following effect:
·in connection with his claims for compensation since 2002 he has completed various Lifestyle Questionnaires;
·as regards atrial fibrillation, he stated in a Lifestyle Questionnaire, dated 8 August 2012, that he suffered 3–6 episodes per week, each episode lasting from 2 to 10 hours;
·he now suffers 2–3 such episodes per week, each episode lasting, on average, over 4 hours, during which the first 30 minutes are “very intense” causing him to “curtail all activities”, and thereafter, if he tries “to do anything else”, it will “trigger” the same level of intensity as existed in the first 30 minutes:
·since his discharge from the RAN he has remained in employment;
·he currently works full-time (from 8 am to 5 pm) as a program manager, managing 10–15 employees;
·he has not had any extended time off work because of atrial fibrillation;
·he has had attacks at work causing concern among the workforce such that the fist-aid team has investigated whether he has having a heart attack;
·he has been hospitalised once for an episode of atrial fibrillation;
·if he has an attack at work, he will sit down for 30 minutes and then attend to “very light duties” and avoid climbing stairs;
·as regards his left knee, he reported to Dr Dobson in 2012 that, after walking 500 metres, his knee pain would increase;
·he used to play golf but last played golf about 2½ years ago.
The Relevant Medical Evidence
Medical evidence included in the T Documents and Exhibits
Mr Graham Lewis
Mr Lewis, Consultant Orthopaedic Surgeon, prepared a report, dated 16 January 2007, addressed to the Department of Veterans’ Affairs, regarding an assessment of the applicant which he conducted, at the Department’s request, on 11 January 2007. Mr Lewis’ report states as follows:
“ …
HISTORY:
Occupational/Work Duties and Education:
Mr Sinclair told me that he was brought up and educated in Ireland and moved to Canada from Belfast when he was aged 15 years.
After leaving school he joined the Defence Forces and subsequently spent 21 years in the Canadian Navy.
He joined the Australian Navy in 2002 approximately 10 days before his knee injury. He was discharged on 1 May 2006.
Mechanism of Alleged Injury/Sequence of Events:
Mr Sinclair sustained an injury to his left knee in September 2002. At that time he was playing indoor soccer as part of the compulsory sport program. Whilst playing soccer he sustained a twisting injury to his left knee. He felt a pop and it was difficult to walk. His knee soon swelled.
Initial/Early Treatment Received:
He was transported to the Base Hospital where he was admitted. He spent four days in hospital during which time his left knee was quite painful and swollen.
A MRI scan was performed but he was informed that there was no significant abnormality.
Subsequent Progress/Specialist Management:
He experienced ongoing problems with his left knee. There was pain and swelling and he was eventually referred to Mr James, Orthopaedic Surgeon in Perth. A MRI scan was performed and this showed a torn medial meniscus.
Left arthroscopic surgery was recommended and Mr James performed this on 4 June 2003. A partial medial meniscectomy was performed.
Post-operatively he reported that he had ongoing pain. A further MRI scan was performed which revealed bony bruising.
On 1 July 2004 Mr James performed a left upper tibial osteotomy. Apparently there was a peri-operative episode of atrial fibrillation.
The osteotomy was in the form of a closing wedge and fixation was with a staple which was retained for approximately nine months.
After the osteotomy there was very considerable pain in his left leg. The convalescence continued for two or three months during which he hobbled around and required a frame for much of that time. He then attended physiotherapy for six to eight months.
His pain lessened to some degree but there were persistent problems. His treating surgeon advised him that his knee should continue to improve.
Current Status:
His left knee pain has persisted. He stated that if he walks for more than 15 minutes the pain becomes worse. If he goes up and down stairs regularly he has increased left knee pain. He is aware of swelling with any physical activity.
He is unable to kneel on the left side and he indicated that he avoids squatting. Often there is a toothache type of feeling in his knee when he is at rest but the knee does not seem to keep him awake.
Current Work Status:
He now works as a Systems Analyst with Raytheon which is a full-time permanent position.
Present Activities:
His sports car is manual and when using the clutch repeatedly he experiences knee pain.
He enjoys gardening but undertakes less of this now due to his knee problem.
He also enjoys golf. He will now play 9 holes only and uses a buggy.
Present Treatment:
There is currently no active treatment. He was taking anti-inflammatory medication after his osteotomy surgery but these have now been ceased.
Past Medical History:
An autoimmune hypothyroidism was diagnosed and this has been treated with Thyroxin. The atrial fibrillation has continued to occur intermittently.
Personal/Social History:
He lives in his own home with his wife. He does not smoke cigarettes and occasionally drinks alcohol socially.
PHYSICAL EXAMINATION:
Mr Sinclair was a cooperative middle-aged man with balding grey hair. He measured 183 cm in height and weighed 100 kg. He walked with a very slight limp today.
Lower Limbs:
His hips, right knee and ankles were normal to examination.
In his left knee it was noted that there was 4° of valgus. There was an 8 cm curved lateral scar and minor crepitus with movement.
Extension was normal and there was possibly a very slight loss of flexion but this was minimal. The joint was stable.
There was no quadriceps wasting.
There was no effusion but there was minor patellofemoral crepitus.
INVESTIGATIONS:
No X-rays were available.
SUMMARY AND ASSESSMENT:
Mr Sinclair is a 45-year-old man who sustained a left knee injury just over four years ago. Treatment was by a medial meniscectomy and subsequently a left upper tibial osteotomy. He has ongoing symptoms as a result of his knee problem.
…” (T20)
Dr Peter Dobson
Dr Dobson, Consultant Orthopaedic Surgeon, prepared a report, dated 9 January 2012, addressed to the Department of Veterans’ Affairs, regarding an assessment of the applicant which he conducted, at the Department’s request, on 5 January 2012. Dr Dobson’s report states as follows:
“…
HISTORY:
I re-questioned Mr Sinclair in order to confirm the previous historical details related to the injury in September 2002 and beyond, until 11 January 2007 when he was last assessed by Dr G Lewis. He has agreed with all aspects. I refer you to Dr Lewis’ report dated 16 January 2007.
Progress Since Last Assessment:
Since the last assessment Mr Sinclair has not had any further treatment to his knee. The last operation was the high tibial osteotomy. He has continued to have ongoing problems and there has been a gradual but slow deterioration he believes in his knee over the intervening period since 2007 until now.
Continuing Employment/Work Duties:
He works as an engineering manager with AWD doing a full-time job.
Continuing Symptoms/Disabilities:
Mr Sinclair told me that his knee is particularly stiff first thing in the morning and he tends to hobble. He can walk about half-a-kilometre before he gets discomfort and has to rest unless he has to press on and the discomfort gets greater. If he overdoes it the knee continues to play up for a few days afterwards and so he avoids that. Overall he is now doing less and walking less distance than he was in 2007. His pain is mainly around the medial side of the knee and also around the lateral side with a prickling-type feeling in the region of the previous operation of the high tibial osteotomy. He finds that the knee is worse in the cold, there is no swelling, he doesn’t get any giving way but he does notice a feeling of insecurity when walking on uneven ground. He has problems with stairs and can only manage about one flight. He lives in a two-storey townhouse and avoids going up and down stairs where at all possible. He is unable to kneel for more than a few seconds before he gets increasing pain in his knee and therefore avoids it.
Activities of daily living are affected particularly things like sports. He used to play 18 holes of golf and walk that now he plays nine holes and uses a buggy [sic]. He finds gardening is difficult particularly getting down to do this and avoids that. He does light gardening but for any heavier gardening and lawn mowing he gets outside help. He avoids the use of ladders and for instance even with a stepladder it is difficult, eg changing light bulbs which his wife does instead. He also has difficulty driving his Alpha [sic] sports car in the city if he has to change gears a lot because of the manual clutch and that aggravates his knee.
Continuing Treatment:
He is not having any ongoing treatment. His expectation is that possibly one day he will require a knee replacement but cannot see that in the early foreseeable future.
He has learnt to put up with the symptoms and learnt to live with the knee the way it is at the present time providing it does not deteriorate.
Personal/Social History:
There has been no change.
PHYSICAL EXAMINATION:
On clinical examination Mr Sinclair presented in quite a straightforward and genuine manner with no functional overlay that I could detect.
On this occasion he weighed 98 kg which is slightly less than his previous weight.
Lower Limbs:
Examination of his lower limbs revealed some slight muscle wasting in his left leg which measured 46 cm in circumferences some 10 cm above the superior pole of the patella compared to 47 cm in circumference on the right side. His leg alignment was in a slightly valgus degree on measurement with 5° of valgus. He had a range of movement of 3 – 135° compared to 0 – 140° on the right side. He had a slightly lax medial collateral ligament due to the medial compartment osteoarthritis. He had a negative anterior drawer and negative Lachman’s sign. The patellofemoral joint was clinically normal. McMurray’s test was negative. The scar remains unchanged from that previously reported. He did however have some mild local tenderness around the proximal tibiofibular joint where he is getting pain on the lateral side of his knee possibly due to some early degeneration in this joint.
FURTHER INVESTIGATIONS:
There were no further investigations. There were no X-rays available.
SUMMARY AND ASSESSMENT:
I formed the opinion that this man’s condition is that of medial compartmental osteoarthritis treated by a high tibial osteotomy and at the present time his condition is essentially permanent and stable even though it is has [sic] deteriorated over the last five years to a mild degree. He also may be developing some early osteoarthritis of the superior tibiofibular joint secondary to the operation.
In response to the specific questions in your letter dated 14 December 2011:
1.Can Gary Sinclair’s accepted orthopaedic condition(s) currently be classed as stable, permanent and not likely to improve above the current level of impairment?
If the answer is yes, please complete the attached impairment forms. In completing these forms and writing your report could you also please objectively assess Gary Sinclair’s ability to perform the indication [sic] functions and comment on your assessing method and observations.
If the answer is yes, could you please advise that date when Gary Sinclair’s accepted condition(s) became stable and permanent?
If the answer is no, please provide your opinion of when the condition should be reviewed.
Mr Sinclair’s accepted orthopaedic condition currently is classed as stable, permanent and not likely to improve above the current level of impairment.
I have completed the accompanying forms using my accompanying functional assessment and examination as outlined above to complete those forms.
Essentially his condition has probably been stable over the last few years and since 2007. However it should be stated that with any form of osteoarthritis there is going to be an eventual gradual deterioration and eventually he will require a total knee replacement but it is not possible to predict when this may be.
2.Has Gary Sinclair undergone all reasonable medical treatment? Is there any treatment that, in your opinion, would decrease the level of impairment Gary Sinclair currently suffers? If the answer is yes, please provide details of treatment.
Mr Sinclair has undergone all reasonable medical treatment to date for the treatment of his present degree of disability. If however in the future his disability increases as opposed to his impairment then he may require a total knee replacement. If he did end up having a total knee replacement, that is highly likely to decrease the level of impairment. However at the present time the indications for that operation are not present particularly because of his age.
3.Can you also please comment what limitations, if any, could be reasonably expected to be due to the accepted conditions? Please describe how these restrictions may manifest.
Eg – restricted sitting time, inability to drive long distances, function under stressful workloads, operate office technology/machines, work above shoulder height, etc.
Mr Sinclair is limited, as I have outlined in my report, in a number of areas such as walking any distance, he cannot run, has difficulty driving using [sic] a manual car, he has difficulty climbing stairs and particularly climbing ladders, and these restrictions have manifested themselves in those particular ways and prevent him from playing a normal round of golf and other activities of daily living which I have outlined above.
4.Please include in your report any additional information you consider relevant.
As I have briefly outlined above I believe Mr Sinclair should continue in the way that he is at the present time for as long as possible whilst he is able to put up with the symptoms that he has but should those symptoms increase and the function of his knee decrease and his overall disability significantly increase then a knee replacement will be warranted at some stage in the future.
…” (T40)

The Tribunal notes that two brief supplementary reports of Dr Dobson, dated 12 June 2012 and 5 October 2012, are in evidence (Exhibit R5 and Exhibit R6, respectively) but it is unnecessary to set out their contents in these reasons.
Dr Oswald Tofler
Dr Tofler, Consultant Cardiologist, prepared a report, dated 15 February 2012, addressed to the Department of Veterans’ Affairs, regarding an assessment of the applicant which he conducted, at the Department’s request, on 7 February 2012. Dr Tofler’s report states as follows:
“ …
HISTORY & COMPLAINT:
Present History:
In September 2002, when he had joined the Royal Australian Navy he injured his left knee whilst playing soccer. At arthroscopy in 2003 a torn cartilage was identified. During an anaesthetic for a further procedure, in the form of a high left tibial osteotomy in 2004, he was noted to have developed atrial fibrillation. Normal sinus rhythm returned spontaneously. Two days later atrial fibrillation again appeared and lasted for a few days.
Since then he has had numerous recurrences which he can identify, not only by feeling his pulse, but by the onset of a feeling of being unwell. After the electrical conversion to sinus rhythm on one occasion in January 2005, the arrhythmia returned rapidly despite medication. The cardiologist, Dr Hendriks, told him at that time that he had a slight abnormality of his mitral valve. In 2005 the metal pins implanted at the 2004 operation were removed.
Since his first episode of atrial fibrillation he has had recurrent attacks of this arrhythmia, each lasting from two to eight hours and occurring four to six times per month. Often there is no obvious reason for the attack but if he is really stressed physically or emotionally an attack will begin. He is unable to run or walk briskly because of pain in the left knee.
Past Medical History:
In 1992 he had a detached retina in one eye, treated successfully with silicon. He was well and very fit until he injured his knee while playing soccer in July 2002. When his thyroid function was found to be subnormal in 2004, he began taking Oroxine tablets 100 mcg daily.
Current Treatment:
Tambocor 150 mg twice daily, Aspirin 100 mg daily, Pariet one daily, and Oroxine tablets 100 mcg daily.
Social History:
He was born in Belfast Ireland but at the age of 15 he migrated to Canada where he immediately joined the Royal Canadian Navy and where he lived from 1977 to 2002. He graduated in Economics from the Royal Military College of Canada in Kingston, Ontario and was in the Royal Canadian Navy until he came to Australia in 2002. He then joined the Royal Australian Navy in which he served until 2006. For the last six years he has been working for Raytheon, a private company which does consulting work for the Navy.
He has two children from his first marriage, aged 21 and 19, who are both well. His second wife is the business manager of Australian Cult [sic] Heritage Management. Both of his parents are alive and well in their seventies. He has one brother aged 45, who has a cholesterol problem.
He ceased smoking 20 cigarettes a day following the first attack of atrial fibrillation in 2004. He has never drunk more than one glass of wine with a meal. He has no more than one cup of coffee a day.
Employment History:
He was in the Royal Canadian Navy from 1972 [sic] to 2002, in the Royal Australian Navy from 2002 to 2006 and has been working for Raytheon for almost six years.
PHYSICAL EXAMINATION:
He was a pleasant, bald-headed man with a small goatee beard. He was well built and 186 cm in height. He weighed 98 kg, an increase of 12 kg from his weight in 2002. I recorded his blood pressure at 120/80 mmHG. His heart sounds were normal.
There was a very faint mid systolic murmur with late systolic accentuation in the apical region.
His chest expansion was limited to 2 cm but chest air entry was good. His jugular venous pressure was normal.
Peripheral leg pulses were palpable. His abdomen was normal.
There were scars mainly on the lateral aspect of his left knee and a tender area on the medial aspect of that knee. Flexion appeared normal but he was unable to kneel on his left knee because of pain.
His urine showed a strongly positive test for a reducing agent, similar to sugar.
The electrocardiogram showed sinus rhythm at a rate of 62/minute. There were inverted P and T waves in lead III, which disappeared on deep inspiration. The T waves were blunted from V3 to V5.
Echocardiography showed a vigorous normal sized left ventricle, normal sized atria and Doppler evidence of trivial to mild mitral regurgitation.
SUMMARY AND ASSESSMENT:
He is a fifty year old man with paroxysmal atrial fibrillation, which can be very disabling. The attacks have become more disabling in the last six months, leading to him requiring some hours to recover. His physical activity is limited by a painful left knee.
The outcome of further examination of his urine is not yet to hand.
He should be reviewed by a cardiologist every six months.
My answers to your questions are as follows:
1.Can Gary Sinclair’s accepted conditions(s) currently be classed as stable, permanent and not likely to improve above the current level of impairment?
If the answer is yes please complete the attached impairment forms. In completing these forms and writing your report could you also please objectively assess Gary Sinclair’s ability to perform the indication [sic] functions and comment on your assessing method and observations.
If the answer is yes could you please advise that date when his accepted condition(s) became stable and permanent?
If the answer is no please provide your opinion of when the condition should be reviewed.
No. Dr Cameron Singleton, a cardiologist in Adelaide, increased his Tambocor from 100 to 150 mg twice daily six months ago, because his arrhythmia attacks were becoming more frequent and disabling. His heart condition needs to be reviewed by a cardiologist twice a year.
2.Has Gary Sinclair undergone all reasonable medical treatment? Is there any treatment that in your opinion, would decrease the level of impairment Gary Sinclair currently suffers? If the answer is yes, please provide details of treatment.
Yes, Mr Gary Sinclair has undergone all reasonable medical treatment, including an electrical cardioversion.
He knows that there is other medication which could possibly be more effective in preventing attacks but which have the potential for unpleasant side-effects. He knows that there are interventions on the nerve pathways in his atrium, either in the form of percutaneous radio-frequency ablation or ablation at open heart surgery. He has been told that both of these interventions carry a 5% stroke risk, a risk he is not prepared to take at this stage.
3.Can you also please comment what limitations, if any, could be reasonably expected to be due to the accepted conditions? Please describe how these restrictions may manifest eg restricted sitting time, inability to drive long distances, function under stressful workloads, operate office technology/machines, work above shoulder height, etc.
His left knee was recently thoroughly evaluated by an orthopaedic surgeon in Adelaide, who advised him not to jog or run. He is unable to do gardening because this involves kneeling which causes pain. He needs a buggy when playing golf.
Stressful work loads have at times been associated with the onset of the arrhythmia. Episodes of arrhythmia, which come on when he is exerting himself, cause severe dyspnoea and weakness.
4.Please include in your report any additional information you consider relevant.
It is likely that in the next five years the attacks of atrial fibrillation will become so prolonged or frequent that he will be prepared to consider the interventions mentioned in section 2. Alternatively, it also [sic] possible that the arrhythmia will become permanent rather than paroxysmal, thus being better controlled with medication and cause fewer symptoms.
…” (T43)
On 9 August 2012 Dr Tofler provided to the Department of Veterans’ Affairs “Medical Impairment Assessment” forms completed by him on 31 July 2012 in relation to his abovementioned assessment of the applicant on 7 February 2012. In his responses to questions in those forms he (inter alia):
·described the symptoms of the applicant’s atrial fibrillation as follows:
“ Attacks of atrial fibrillation occur about six times per month, sometimes related to stress, sometimes to physical exertion, but sometimes with no obvious precipitating factor. The symptoms are moderate shortness of breath, light-headedness requiring him to sit down, often accompanied by tunnel vision. These symptoms make it difficult for him to communicate with people. The usual duration of attack is 4-6 hours.”;
·indicated that the applicant’s atrial fibrillation causes him “embarrassment in public places” in that “if an attack occurs at work he is obliged to tell his colleagues about his heart condition, thus causing him embarrassment”;
·indicated that the applicant is “embarrassed and frustrated when an attack occurs in public” but that such embarrassment does not “cause him to avoid ordinary public places all or some of the time”;
·indicated that the “METs” (“effort tolerance”) level at which activities consistently give rise to symptoms of atrial fibrillation in the applicant’s case is “4–5”;
·described the symptoms of atrial fibrillation which limit the applicant’s effort tolerance as:
“ Shortness of breath and light-headedness with tunnel vision resulting in difficulty in communicating with people.” (T53, pp 182–184; Exhibit R1, ST2, pp 13–14, 16)
Dr Tofler subsequently prepared a report, dated 7 December 2012, addressed to the Department of Veterans’ Affairs, regarding an assessment of the applicant which he conducted, at the Department’s request, on 26 November 2012. That report states as follows:
“ …
HISTORY & COMPLAINT:
Present History:
Mr Sinclair’s atrial fibrillation was first documented in 2004 during an anaesthetic for surgery on his knee, injured in 2002 during a soccer match whilst he was serving in the Royal Australian Navy. Since this first documented attack of atrial fibrillation he has had recurrent attacks, approximately six every month. An attack may last from half an hour to over four hours and may be brought on by excessive physical exertion or for no identifiable reason. It is quite disabling in that it may be associated with dizziness and shortness of breath, so that he has to cease immediately whatever he is doing and sit down. Medication controls the severity of the attacks to some extent.
Past Medical History:
Mr Sinclair had an injury to his right knee in 2002. In 2004 he had surgery to repair the damage to his knee. Electrical cardioversion of atrial fibrillation to sinus rhythm in 2004 was successful for a few months only.
Current treatment:
Tambocor 150 mg bd for the last eighteen months, Cartia one a day since 2004, Pariet one daily for the last six months, Oroxine 100 micrograms daily for the last five years.
Social History:
He was born in Belfast, Ireland. At the age of 15 he migrated to Canada where he immediately joined the Royal Canadian Navy and where he lived from 1977 to 2002. He graduated in economics from the Royal Military College of Canada in Kingston, Ontario and served in the Royal Canadian Navy until he came to Australia in 2002. He then joined the Royal Australian Navy in which he served until 2006. Since then he has been working for Raytheon, a private company, which does consulting work for the Navy.
From his first marriage he has two children aged 21 and 19, both in good health. His second wife is in good health and is the business manager of Australian Cult [sic] Heritage Management. He has one brother aged 45 who has a cholesterol problem. Both of his parents are alive and well in their seventies.
Following his attack of atrial fibrillation in 2004 he stopped smoking twenty cigarettes a day. He has never drunk more than one glass of wine with a meal. He drinks no more than one cup of coffee a day.
Employment History:
From 1972 [sic] to 2002 he served in the Royal Canadian Navy and from 2002 to 2006 he served in the Royal Australian Navy. From 2006 he has been employed by Raytheon Pty Ltd.
PHYSICAL EXAMINATION:
He was a pleasant bald-headed man with a goatee beard. His height was 186 cm and his weight was 88 kg, a reduction of 10 kg in the last few months, as a result of dieting.
His heart sounds were normal. There were no murmurs on this occasion. I recorded his blood pressure at 135/85 mmHG. Air entry was fair.
His chest expansion was limited once again to 2 cm. His jugular venous pressure was normal. Peripheral leg pulses were palpable. His abdomen was normal.
There were scars on the lateral aspect of his left knee and a tender area on the medial aspect of that knee.
His urine was once again strongly positive for a reducing agent, almost certainly glucose.
The electrocardiogram showed sinus rhythm at a rate of 82/minute with flat T waves from V1 to V4, much the same as when I saw him last.
SUMMARY AND ASSESSMENT:
He is a 50 year old man with paroxysmal atrial fibrillation which can be very disabling, in the sense that he has to immediately stop what he is doing until the attack ceases. It often takes him some hours to recover. His physical activity is limited not only by the fear of provoking an attack but also by a painful left knee. Further medication is unlikely to improve the attacks of atrial fibrillation. Understandably, he is reluctant to undergo any intervention aimed at preventing the attacks because of the risks involved.
He should be reviewed by a cardiologist every six months.
Judging by the examination of his urine alone, he probably has Type 2 diabetes for which he has had no other investigations.
He has thyroid insufficiency controlled with medication.
He has trivial mitral valve disease, as determined by echocardiography in February 2012.
His left knee limits his physical activities somewhat; for example he is unable to put his weight on that knee when kneeling.
His prognosis for duration of life is good. Clearly his quality of life is compromised by attacks of atrial fibrillation.
My answers to your questions are as follows:
SCHEDULE OF QUESTIONS
1.Is the atrial fibrillation condition related in any way to the knee surgery performed in July 2004? If not what is the likely cause of the atrial fibrillation?
It is related to the knee surgery in that it was documented for the first time by the anaesthetist during the surgery. It is not uncommon for episodes to occur in such circumstances.
2.Does the atrial fibrillation condition currently cause a permanent restriction of exercise tolerance?
The episodes of atrial fibrillation currently cause a permanent restriction of exercise tolerance in that he has to restrict his physical activities for fear of provoking an attack.
3.If there is a permanent restriction of exercise tolerance would you please rate his impairment in accordance with Scale 1.1 and Table 1.2.
According to scale 1.1 he is limited to 2 to 3 METs because he has had an attack when driving a power boat, preparing meals and occasionally when playing golf.
According to scale 1.2 his symptomatic activity level is 73.
4.If you consider Mr Sinclair does not suffer a permanent restriction of exercise tolerance, would you please rate any impairment in accordance with chapter 15, noting the comments in his undated letter, a copy of which is enclosed.
Not applicable.
5.Do you consider any impairment could be reduced by further treatment? If yes, please detail the treatment and the likely reduction in impairment.
The attacks of atrial fibrillation could be reduced or eliminated by modern electrical ablation techniques which can be associated with significant morbidity and therefore he is reluctant to consider such interventions. Medication with amiodarone could be tried but this medication can have serious side-effects. It is possible that the atrial fibrillation, which now occurs spasmodically, could eventually become permanent and thereby perhaps much less disabling, because a rapid heart rate might be prevented by different medication.
…” (T56, pp 200–202)
Dr Tofler also completed a Department of Veterans’ Affairs “Intermittent Impairment Worksheet”, dated 28 November 2012, in which he provided an impairment rating in accordance with Chapter 15 of GARP M (T56, p 203 – see paragraphs 33, 36, 44 below).
The evidence of the medical witnesses
Mr John Hill
Mr Hill, Consultant Orthopaedic Surgeon, confirmed that, at the request of the respondent’s solicitors, he had examined the applicant on 21 January 2014 and that he had subsequently prepared a report, dated 21 January 2014, addressed to the respondent’s solicitors, regarding that examination. He also confirmed that the contents of that report are true and correct.
Mr Hill’s report of 21 January 2014 states as follows:
“ …
HISTORY
Mr Sinclair described sustaining an injury to his left knee in September 2002. He had just transferred from the Canadian Navy to the Royal Australian Navy when playing compulsory football he twisted on his left knee. He said at the time he felt a ‘pop’ and was subsequently diagnosed as having sustained a tear of his medial meniscus.
He consulted Orthopaedic Surgeon, Mr Greg Janes who undertook arthroscopic partial medial meniscectomy in May 2003. At that time the MRI examination did not indicate significant changes to the articular cartilages in the various compartments of the knee.
Mr Sinclair continued to have persistent pain and further MRI examination indicated that he had developed some degenerative changes in the medial compartment of his knee. For that reason Mr Janes undertook a high tibial osteotomy in order to unload the worn medial compartment and redistribute the compressive load more equitably throughout the knee. This operation was undertaken on 1 July 2004. Mr Sinclair told me that following that he developed Auricular Fibrillation (AF).
He did have some relief of his knee compartment pain and in fact Mr James [sic] on his final review indicated that he had little or no pain and he was ‘quite thrilled’ with the result. Mr Sinclair told me that he did continue to have some pain and he was discharged from the Royal Australian Navy in 2006 on medical grounds. He then took employment with Raytheon as a Combat Systems Designer, which is essentially a sedentary position. He has had no further surgery to the knee.
CURRENT SYMPTOMS
Mr Sinclair complains of a consistent low-grade pain on the inner side of the knee even at rest. He has some intermittent upper lateral pain. His symptoms are aggravated after walking for 200m at which stage he has to slow down. He says when walking with friends or family he tends to lag behind. He did say that if he walked too fast it tends to trigger his Auricular Fibrillation. He is unable to kneel on account of his knee symptoms.
He says that at the end of the day’s work when he has to do a lot of walking and a lot of stair work between meetings he does have increased pain. Recently he said he developed some left groin pain on walking. He wakes occasionally with knee pain but no more than once a month.
CURRENT TREATMENT
Nil.
MEDICATION
None in relation to his knee.
He tries to avoid medication because of the fact that he has diverticulitis and oesophageal reflux.
ACTIVITIES WORK/OCCUPATION
He is working full time as a Project Manager in the Defence Industry with Raytheon. He does have some increased symptoms at the end of a day’s work when he has had to do a lot of walking and repetitious stair climbing activities, going to meetings with his team.
He says after an hour’s driving he feels stiff. When he drives his second car, which is a manual, he has some increased symptoms with pedal activities.
DOMESTIC
Mr Sinclair is married and lives with his wife. His chores are limited by his Auricular Fibrillation.
In regards to his knee he avoids any kneeling activities particularly in the garden. He says they now live in an apartment.
RECREATION/HOBBIES
·Fishing – He now confines this to fishing from a jetty and he has put his boat on the market. This is because of his AF.
·He plays golf using a buggy but not for the last two years. I understood this is not related to his knee condition.
GENERAL HEALTH
·Auricular Fibrillation (AF) on medication
·Type II diabetes - on Insulin
·Hypothyroidism - on Thyroxin
·Gastric reflux on Pariet
·Diverticular disease from which he has recurrent episodes of diverticulitis
·Hypercholesterolaemia on Statins.
EXAMINATION
A 52-year old man, who was a good historian. He was noted to walk with a moderate limp. Weight 95 kg, height 184 cm. He was noted to stand with mild knee valgus.
His pulse was noted to be in sinus rhythm at the time of his examination.
Left knee:
There was a faded 13 cm curvy linear lateral operation scar, which was tender with some diminished sensation about the scar.
Active range of movement 5 – 130 degrees accompanied by a mild patellofemoral crepitus. There was no abnormal ligamentous laxity.
On Stork Test he was not quite was well balanced as he was on the right leg. He could undertake a full squat, which produced some pain on the inner side of the knee particularly when he stood from the squatting position.
INVESTIGATIONS
X-rays – both knees (27 June 2012)
Dr Michael Krieser Consultant Radiologist
Findings: Bilaterally there is mild medial compartment narrowing and very small joint margin osteophytes in keeping with mild degenerative change.
No lateral patellofemoral compartment change evident. No knee joint effusion or opaque loose body. On the left knee there is mild remodelling deformity in the proximal tibia fibula with evidence of prior fixation. This may reflect prior trauma osteotomy. Proximal tibial articulations are not optimally profiled but there is fusion on the left.
I have reviewed the x-rays and as is often the case following a high tibial osteotomy, the superior tibio fibular joint has fused. He does have narrowing of the medial compartment of the knee on measurement 3 mm, the normal being 4 mm+.
In response to your Schedule of Questions;
4.1What condition/s does Mr Sinclair suffer from? Please identify each separate condition and outline the basis for your opinion.
From the Orthopaedic conditions Mr Sinclair suffers from medial compartment osteoarthritis of his left knee which has previously undergone a high tibial osteotomy. The latest x-rays show that there is mild but significant narrowing of the medial compartment 3 mm vs 4 mm +. He does have an arthrodesis of the superior tibio fibular joint, which does not represent an impairment nor disability.
I note that Mr Sinclair does suffer from Auricular Fibrillation but this is a condition outside my area of expertise.
4.2Please outline the symptoms of each condition.
His symptoms have been described in some detail in the history above.
4.3Please provide an assessment of the applicant’s lower limb condition under each of the following tables:
a)   Table 3.2.1
b)   Table 3.2.2
c)   Table 3.2.4
d)   Table 3.4.1
Please outline the basis for your assessment under each table.
Table 3.2.1
It is difficult to make an impairment rating on the basis of this table. He does have x-ray changes but he does not have a normal range of movement.
He does have a very mild flexion contracture but his flexion range is essentially normal. I would rate his impairment as somewhere between 2 and 5.
Table 3.2.2
Again it is difficult to pigeon hole his impairment rating. He is able to walk for more than 200 m but after that time the pain is such that he does tend to walk at a slower rate and walk behind friends and family. He does not require a walking stick. I would put him at an impairment rating of 10.
Table 3.2.4
He has had a tibial osteotomy so his impairment rating would be 5.
Table 3.4.1
Resting joint pain he fits impairment rating 2 ie he has knee pain which is often present at rest but which is mild.
4.4Does the condition cause embarrassment in ordinary public places? Does it cause Mr Sinclair to avoid ordinary public places? If so, please provide an assessment under Table 17.1 of the GARP M.
His condition does not cause embarrassment in ordinary public places.
4.5Does Mr Sinclair suffer from any other condition that affects his lower limb and is contributing to his impairment that is non-service related? If so, please provide your opinion as to whether the level of contribution (from the non-service related condition) is:
a)   Complete
b)   About three quarters
c)   About two thirds
d)   About half
e)   About one third
f)   About one quarter
g)   Not at all
Mr Sinclair does not suffer from any other condition affecting his lower limb that is contributing to his impairment.
4.6Is there anything further you would like to comment on relevant to the above request for a report?
I would agree with others that there is a strong possibility that Mr Sinclair will require a total replacement arthroplasty of his left knee at some indefinite stage in the future. I consider however that this is unlikely for some years.
…” (part of Exhibit R2)

In his oral evidence Mr Hill confirmed that the “current symptoms” set out in his report comprise the history of symptoms given to him by the applicant on 21 January 2014.
In response to a question from the applicant, Mr Hill said that the normal range of movement of the knee is 0–120/140 degrees. He added that the applicant’s 5 degrees “flexion contracture” of his left knee constituted approximately a 10% “impairment” of his lower limb.
Dr Vincent Paul
Dr Paul, Cardiac Electrophysiologist, confirmed that he had provided two reports regarding the applicant, dated 20 January 2014 and 10 March 2014, to the respondent’s solicitors and that their contents are true and correct.
Dr Paul’s report of 20 January 2014 states as follows:
“ Thank you for referring Mr Gary Sinclair for medical assessment and report.
I am a consultant cardiologist of 20 years standing and a specialist in arrhythmia management. I am head of electrophysiology at Royal Perth Hospital. I confirm that my experience is appropriate.
I have reviewed the clinical records provided and I have interviewed and examined Mr Sinclair. I note that he has seen a number of cardiologists in the past who have each provided a report. I will concentrate on his current condition and on the questions that you have raised.
Brief history of condition
Mr Sinclair suffered a knee injury in 2002 and underwent surgery for this condition in 2004. At the time of this surgery he suffered his first episode of atrial fibrillation. At that time he had no predisposing features for atrial fibrillation. In particular he had no family history, hypertension, obesity or sleep apnoea and did not drink excessively.
In 2004 he underwent DC cardioversion. Since then he has continued to have recurrent episodes of atrial fibrillation.
Current status
Mr Sinclair currently suffers from episodes of atrial fibrillation three times per week on average. This is despite being on regular anti-arrhythmic medication (Flecainide 150 mg twice daily). Each episode of atrial fibrillation will last between X and Y hours [sic]. The episodes do self terminate and Mr Sinclair has not had to undergo further DC cardioversion. During these episodes Mr Sinclair is incapacitated by light-headiness [sic], shortness of breath and reduced exercise tolerance. These episodes are unpredictable in nature but may, on occasions, be precipitated by minor exertion. As a consequence of this condition Mr Sinclair has restricted his lifestyle in an attempt to reduce the frequency of attacks.
Response to Schedule of questions
5.1What cardiac condition does Mr Sinclair suffer from?
Mr Sinclair suffers from paroxysmal atrial fibrillation. The heart is normally activated from the sinus node. At regular intervals a wave of electrical excitation spreads through the upper chambers of the heart (the atria) causing them to contract and push blood down the lower chambers (the ventricles).
Electrical activation then passes from the atria through specialized conduction tissue to the ventricular muscle causing them to contract and eject blood from the heart. In Atrial Fibrillation there is continual rather than episodic activation with multiple wavelets of electrical activity moving around the atrium in a random fashion. The atrial mechanical activity is lost. Electrical impulses still pass down to the ventricles but in an irregular fashion and often at an inappropriate rate.
Atrial fibrillation is generally considered a progressive condition in which the frequency and duration of attacks increase with time. Atrial fibrillation is associated with an increased risk of strokes and development of cardiac failure.
5.2Please outline the symptoms of this condition.
Symptoms vary greatly between individuals. Some patients are completely unaware of the condition and others (like Mr Sinclair) are significantly incapacitated. The symptoms will include a sensation of the heart racing and beating in an irregular fashion. Other symptoms will include pre-syncope, shortness of breath and reduced exercise tolerance. Chest pain may occur infrequently but episodes are often associated with general lethargy. Many patients will describe being unwell for a period of time following an attack.
5.3Please outline your opinion as to the nature and characterization of the condition.
a)   Mr Sinclair is continually at risk of suffering from bouts of atrial fibrillation. As such I believe the condition and the restrictions Mr Sinclair places upon his lifestyle are persistent, although the symptoms themselves are intermittent. This is analogous to someone with coronary artery disease who is continually at risk of bouts of angina but does not have symptoms continually.
b)   I am ensure [sic] of the question.
c)   Concern over the potential onset of atrial fibrillation causes a permanent restriction in activity. Exercise tolerance during normal sinus rhythm should not be impaired but during episodes of atrial fibrillation it will be significantly reduced.
5.4How should Mr Sinclair’s classified Chapter 1 or 15? [sic]
I believe both chapters are applicable.
Mr Sinclair has a permanent and progressive condition. He has modified and restricted his activities and personal lifestyle in an attempt to avoid symptomatic episodes. Activities that he has ceased include use of his boat. According to scale 1.1 that restricts his activity to 2 to 3 METs. According to table 1.2 his loss of symptomatic activity is 72%.
During and [sic] episode of atrial fibrillation he is most symptomatic and restricted. During an episode he has dyspnoea and light headiness [sic] at rest. He is incapable of any activity and has to rest until symptoms pass.
Attack severity according to table 15.1 would be V on basis of inability to complete everyday activities. Duration of attack according to table 15.2 would be medium at best but on most occasions prolonged.
This gives an intermittent grading code of I and intermittent impairment score of 70.
According to table 15.5 functional loss will be five.
5.7     Are there any further comments?
Mr Sinclair’s symptoms are inadequately controlled by high dose Flecainide. Alternative drug therapies are either contraindicated (history of thyroid disease) or unlikely to be more successful. He has reached a stage where I would recommend catheter ablation.   Alternative approaches could be surgical approach (Cox Maze 3) or a pace and ablate strategy.
…” (part of Exhibit R3)
Dr Paul confirmed that the reference to “X and Y hours” in the third sentence under the heading “Current status” in his report should read “3 and 4 hours”.
Dr Paul’s report of 10 March 2014 was provided in response to the following request made to him by the respondent’s solicitors in a letter dated 17 February 2014:
“ We write to request a supplementary report from you in relation to your answers contained in your report dated 20 January 2014. Specifically:
(a)At 5.3(c), you state that ‘concern over the potential onset of AF causes a permanent restriction in activity but that exercise tolerance during normal sinus rhythm should not be impaired’. Therefore, do you consider the Applicant’s AF condition causes a permanent restriction of exercise tolerance or not? Please provide reasons for your opinion.
(b)At 5.4, you state that attack severity, according to Table 15.1, would be V on the ‘basis of inability to complete everyday activities’. We note that the instructions to Table 15.1 state ‘to be rated at level V severity, a condition must render the veteran incapable of caring for himself for [sic] herself’ … Please comment as to whether this alters your assessment of the applicable rating under table 15.1 of the GARP M and if so, how your assessment is altered.” (original emphasis) (part of Exhibit R4)
Dr Paul’s report of 10 March 2014 states as follows:
“ With respect to your specific queries, the applicant’s AF condition itself does not cause permanent restriction to exercise. When he is in sinus rhythm he will have a normal exercise tolerance, however because normal levels of activity may precipitate atrial fibrillation this gentleman is permanently restricting his activity. As such it is fear over the onset of symptoms that are affecting him.
I would regrade this gentleman’s symptoms as level 2. I have gone for this criteria on the basis that his self care is unaffected and he does not require any assistance however when he has symptoms he is severely restricted in his normal activities. This gentleman’s symptoms will last between three and four hours.” (part of Exhibit R4)
In response to questions from the applicant, Dr Paul elaborated on the contents of his report as follows:
·as regards his report of 20 January 2014, he said that he adhered to the opinion that the restriction of the applicant’s activity to “2 to 3 Mets” reflects the level of his disability during the symptoms of atrial fibrillation;
·as regards his report of 10 March 2014:
- he reiterated the opinion expressed in the first paragraph of that report;
- with reference to the second paragraph of that report, he acknowledged that, during the first 30 minutes of an atrial fibrillation attack (as described to him by the applicant), the applicant is “severely limited” but he added that, when one refers to people who are incapable of undertaking the normal activities of daily living, one is referring to people who require assistance to undertake those very basic activities, and that reference does not apply to the applicant’s circumstances.
The Issues
The respondent does not dispute that the applicant has suffered “permanent impairment”, for the purposes of the MRC Act, as a result of his abovementioned compensable conditions, namely, “atrial fibrillation”, and “left knee medial meniscal tear and varus malalignment” and “arthrodesis of the tibiofibular joint”. As regards the applicant’s compensable left knee condition, the Tribunal notes that the respondent has previously (in September 2007) paid to the applicant permanent impairment compensation, pursuant to ss 24 and 27 of the SRC Act, on the basis of a 20% “whole person impairment”.
The primary issues for the Tribunal’s determination in this proceeding are the appropriate impairment ratings which apply to the applicant’s abovementioned compensable conditions, pursuant to GARP M, for the purpose of assessing the amount of permanent impairment compensation payable to him under s 68 of the MRC Act.
Consideration and Findings
Cardiac condition – “atrial fibrillation”
The fundamental issue for the Tribunal’s determination is the applicable chapter of GARP M. Two chapters are potentially applicable, namely, Chapter 1 and Chapter 15.
Chapter 1, which is one of 12 chapters (1–12) including in Part A (“System Specific Assessment”) of GARP M, commences as follows:
“ CHAPTER 1
CARDIORESPIRATORY IMPAIRMENT
INTRODUCTION
Cardiorespiratory impairment results from conditions that affect the function of the heart or lungs. The procedures described in this chapter are to be applied in assessing most conditions of the heart and lungs, and will usually also be appropriate for conditions affecting the function of the thorax or diaphragm, lesions of the nerves that supply the muscles of respiration, and conditions such as anaemia. The principal exception is any condition which is predominantly intermittent in nature and which would be better assessed by applying Chapter 15 (Intermittent Impairment).
Different procedures (described in Chapter 2) are to be applied to assess hypertension and non-cardiac vascular conditions (such as aortic aneurysm and varicose veins).
In general, cardiorespiratory impairment is to be measured by reference to exercise tolerance. Exercise tolerance is quantified in terms of METs (see pages 11–12). However, if a respiratory component is present, measurements of lung function, such as forced expiratory volume in one second (FEV1), forced vital capacity (FVC), and maximal expiratory flow (MEF _25–75) are to be used in addition to exercise tolerance. FEV1 and FVC are to be measured by spirometry. For the purposes of assessment in accordance with this Guide, the terms ‘MEF _25–75’ and ‘FEF _25–75’ (forced expiratory flow between 25% and 75% of the vital capacity) are to be taken as equivalent.
The conversion of loss of exercise tolerance and measurements of lung function into an impairment rating is set out in Table 1.2 and Table 1.3.
Certain cardiorespiratory conditions cannot be rated by applying exercise tolerance. These include:
·conditions that do not decrease exercise tolerance;
·conditions that do not produce symptoms; and
·intermittent conditions.
‘Exercise tolerance’ refers to a person’s ability to exercise from a cardiorespiratory point of view rather than to a person’s total ability to exercise. For example, a veteran who has osteoarthritis of both knees may be greatly limited in walking but may still be able to swim a considerable distance. Such a veteran would still have good exercise tolerance from a cardiorespiratory point of view, though total ability to exercise would be reduced.
…”
Chapter 15, which is one of five chapters (13–17) included in Part B (“Non-System Specific Assessment”) of GARP M, commences as follows:
“ CHAPTER 15
INTERMITTENT IMPAIRMENT
INTRODUCTION
Intermittent disorders are conditions:
·that remain at a low level of impairment between discrete episodes of increased impairment; or
·where there is one basic type of impairment on which is superimposed episodes of significantly greater impairment of another type.
A sufferer from epilepsy who remains well between ‘fits’ exemplifies the first type of intermittent disorder. A sufferer from Menière’s disease whose condition is characterised by deafness and occasional episodes of vertigo exemplifies the second type of intermittent disorder. The deafness may be regarded as the basic type of impairment and the episodes of vertigo may be regarded as the superimposed intermittent impairment. Both elements of the condition are to be assessed.
In this chapter, ‘attacks’ refers to the episode may increased or superimposed impairment [sic]. Attacks are to be categorised by reference to their severity, duration and frequency:
·‘severity of an attack’ refers to the degree to which self-care and normal everyday activities are disrupted by the attack;
·‘duration of an attack’ refers to the average length of time for which an attack lasts, that is, seconds, minutes, hours or days; and
·‘frequency of an attack’ refers to the number of affected days in a year.
Intermittent disorders are also disorders that affect one or more body systems. For example, asthma is both an intermittent condition and a cardio-respiratory condition. Hence, potentially, any intermittent disorder can be assessed by either of two methods:
·by applying the system-specific tables contained in Chapters 1 to 12. Several of those tables should be used if the intermittent disorder causes multiple losses of function; or
·by applying this chapter.
In practice, except where the intermittent nature of the condition clearly overwhelms its system specific effects or vice versa, both methods are to be applied for rating the intermittent condition and the higher of those two ratings taken as the final rating for the intermittent condition.”
In the Tribunal’s opinion, having regard to the Introductions to Chapters 1 and 15 of GARP M set out above, the appropriate chapter to apply for the purpose of assessing the medical impairment resulting from the applicant’s atrial fibrillation condition is Chapter 15. The Tribunal has formed that opinion for the following reasons:
·having regard to the applicant’s evidence and the medical evidence before the Tribunal – to the effect that the applicant suffers an attack or episode of atrial fibrillation, on average, 2–3 times per week, each episode lasting, on average, approximately 4 hours, with minimal, if any, impairment between episodes – the applicant’s atrial fibrillation condition is, in the Tribunal’s opinion, “predominantly intermittent in nature” in that it “remain(s) at a low level of impairment between discrete episodes of increased impairment”;
·according to the medical evidence before the Tribunal, the applicant’s atrial fibrillation condition does not itself cause a permanent (as opposed to a temporary) restriction of exercise tolerance – see, in particular, the first paragraph of Dr Paul’s report of 10 March 2014 (set out in paragraph 23 above) and Dr Tofler’s somewhat equivocal response to Question 2 in his report of 7 December 2012 (set out in paragraph 16 above) in which he refers to the applicant’s having “to restrict his physical activities for fear of provoking an attack”, thereby, in the Tribunal’s opinion, implicitly acknowledging that the restriction of exercise tolerance is a matter of choice by the applicant rather than the necessary effect of the atrial fibrillation condition itself;
·in the Tribunal’s assessment, the intermittent nature of the applicant’s atrial fibrillation condition “clearly overwhelms its system specific effects”, and, accordingly, Chapter 15 is applicable rather than Chapter 1 (see the Introduction to Chapter 15).
Applying Chapter 15 of GARP M and, in particular, Tables 15.1–15.5, the Tribunal makes the following findings.
Table 15.1 – Intermittent Attack Severity
The contents of Table 15.1 and related commentary are as follows:

Table 15.1

INTERMITTENT ATTACK SEVERITY

Level Criteria

0 Minor symptoms that are easily tolerated.

I Mild to moderate symptoms that are irritating or unpleasant but that rarely prevent completion of any activity. Symptoms may cause loss of efficiency in some activities.

II More severe symptoms, that are distressing, but prevent few everyday activities. Loss of efficiency is discernible elsewhere. Self-care is unaffected and independence is retained.

III Loss of efficiency is discernible in many everyday activities. Some elements of self-care are restricted but, in most respects, independence is retained. Bed-rest is often necessary during an attack.

IV Major restrictions in many everyday activities. Capacity for self-care is increasingly restricted, leading to partial dependence on others.

V Most everyday activities are prevented. Dependent on others for many kinds of self-care. Able to be maintained at home only with considerable difficulty, or hospital admission is required.

VI Total incapacity. Unconscious or delirious. Self-care is impossible.

No age adjustment permitted for this table
“ Ratings are based on the activities that the veteran is physically unable to perform. For conditions in which it is common practice to lie down during attacks, it may be inappropriate to rate at level III if symptoms are mild and cause little restriction to activity.
Attacks of some intermittent conditions necessitate hospital admission. Hospital admissions commonly, but not invariably, call for level V or VI rating. It is important to rate self-care capacity. To be rated at Level V severity, a condition must render the veteran incapable of caring for himself or herself.
Hospital admission for surgery is not to be used as a basis for ratings from Table 15.1.”

The Tribunal notes that:
·the applicant’s own rating of the severity of his attacks of atrial fibrillation is level VI on the basis that he is “unable to carry out any function other than sit down and rest until [he recovers]” (T55, p 197);
·Dr Tofler’s rating of the severity of the applicant’s attacks of atrial fibrillation is level V on the basis that “during an attack most everyday activities are prevented” (T56, p 203);
·Dr Paul’s initial rating of the severity of the applicant’s attacks of atrial fibrillation was level V on the basis of “inability to complete everyday activities” (report of 20 January 2014, part of Exhibit R3); however, in his supplementary report of 10 March 2014 (part of Exhibit R4) and in his oral evidence he amended that rating to level II on the basis that the applicant’s “self-care is unaffected and he does not require any assistance” although “when he has symptoms he is severely restricted in his normal activities”.

In the Tribunal’s opinion, the appropriate rating of the severity of the applicant’s attacks of atrial fibrillation, in accordance with Table 15.1, is level II on the basis that, according to the applicant’s own evidence, during the most intense period of symptoms for the first 30 minutes of an attack, he ceases all activities and sits down and thereafter severely limits his physical activity for the remainder of the episode. In the Tribunal’s assessment, however, the applicant’s evidence does not go so far as to say that, during an attack, he often requires bed-rest or he loses his independence and is partially dependent on others for his self-care. On the contrary, the applicant’s evidence is consistent with the proposition that, even during the most intense 30-minute period of an attack, he retains his independence and his ability to self-care by voluntarily sitting down and ceasing all activities, and is not at all dependent on others.
Accordingly, the Tribunal finds that, in respect of the applicant’s atrial fibrillation condition, the rating level for intermittent attack severity, in accordance with Table 15.1 in Chapter 15 of GARP M, is II.
Table 15.2 – Intermittent Attack Duration
The Tribunal notes:
·the applicant’s oral evidence that an attack lasts, on average, over 4 hours;
·Dr Tofler’s reference to an attack lasting “from one hour to four and a half hours” (T56, p 203);
·Dr Paul’s reference to an attack lasting "between three and four hours” (part of Exhibit R4).
Having regard to the whole of that evidence, it is appropriate, in the Tribunal’s opinion, to describe the duration of the applicant’s attacks of atrial fibrillation, in accordance with Table 15.2, as “medium” on the basis that they generally last “from 30 minutes to four hours”, rather than “prolonged” (“lasting more than four hours”).
Accordingly, the Tribunal finds that, in respect of the applicant’s atrial fibrillation condition, the appropriate description of intermittent attack duration, in accordance with Table 15.2 in Chapter 15 of GARP M, is medium.
Table 15.3 – Intermittent Grading Code
On the basis of the Tribunal’s abovementioned findings in accordance with Table 15.1 and Table 15.2, the appropriate intermittent grading code, in accordance with Table 15.3, is C. The Tribunal so finds.
Table 15.4 – Intermittent Impairment
On the basis of the applicant’s evidence and the evidence of Dr Paul, the Tribunal finds that the frequency of the applicant’s attacks of atrial fibrillation is “100+” days per year.
Applying Table 15.4, the impairment rating appropriate to the abovementioned intermittent grading code is 10.
Accordingly, the Tribunal finds that, in respect of the applicant’s atrial fibrillation condition, the appropriate impairment rating, in accordance with Table 15.4, is 10.
Tale 15.5 – Intermittent Impairment: Precluded and Avoided Activities
The contents of Table 15.5 and related commentary are as follows:
“ Precluded activities refer to ordinary activities. Ratings are to be given on the basis of having to avoid, or of being precluded from undertaking, activities that are common for the veteran’s age group. Ratings are not to be given on the basis of having to avoid only relatively hazardous activities such as rock-climbing or acrobatics.
Table 15.5 is to be applied only if at least one attack of the condition of severity II or greater has occurred within the last two years.”

Functional Loss Table 15.5

INTERMITTENT IMPAIRMENT: PRECLUDED AND AVOIDED ACTIVITIES

Impairment Ratings Criteria

NIL Not prevented by fear of an attack from any significant activities. Can lead a normal life between attacks without the need to take long term medication.

TWO
Must avoid relatively few activities for fear of precipitating an attack.

Or

Can lead a fairly normal life between attacks but must take long term medication.

FIVE Must avoid some activities such as driving a car, using machinery, using public transport, swimming, travelling, being alone except for short periods of time lest an attack occur.

TEN Must avoid a wide range of activities such as driving a car, using machinery, using public transport, swimming, travelling, being alone except for short periods of time lest an attack occur with possible severe consequences.

Only one rating may be had from this table for any given condition. Intermittent conditions may attract a rating from Table 15.5 as well as a rating or ratings from either Table 15.4 or the system specific tables.

No age adjustment permitted for this table

The Tribunal notes that Dr Tofler assigned an impairment rating of FIVE under Table 15.5 on the basis that, of the activities referred to in the relevant criterion, “only using machinery” was the activity which the applicant must avoid (T56, p 203). The Tribunal also notes that Dr Paul, in his report of 20 January 2014, asserted that “according to table 15.5 functional loss will be five” but he provided no basis or explanation for that assertion.
The Tribunal does not accept the impairment rating of FIVE assigned by Dr Tofler and Dr Paul. Having regard to the instructions accompanying Table 15.5 and the criterion in that table which relates to an impairment rating of FIVE, the Tribunal is not satisfied, on the whole of the evidence before it (including the applicant’s own evidence), that the applicant is generally precluded from undertaking, or must avoid, some of the kinds of ordinary activities common to his age group, which are referred to in the criterion in Table 15.5 which relates to an impairment rating of FIVE, such as driving a car, using public transport, or travelling, for fear of precipitating an attack of atrial fibrillation. Nor is the Tribunal satisfied that the applicant “must avoid … being alone except for short periods of time” for that reason.
In the Tribunal’s opinion, having regard to the whole of the evidence before it, the criterion in Table 15.5 which most appropriately describes the applicant’s circumstances is that which relates to an impairment rating of TWO, namely:
“ Must avoid relatively few activities for fear of precipitating an attack.
Or
Can lead a fairly normal life between attacks but must take long term medication.”
In the Tribunal’s opinion, furthermore, each of the alternatives in that criterion appropriately describes the applicant’s circumstances.
Accordingly, the Tribunal finds that, in respect of the applicant’s atrial fibrillation condition, the appropriate impairment rating for “Intermittent Impairment – Precluded and Avoided Activities”, in accordance with Table 15.5 in Chapter 15 of GARP M, is TWO.
Total impairment rating in respect of atrial fibrillation
It follows from the findings referred to in paragraphs 42 and 47 above that the Tribunal finds that, in respect of the applicant’s atrial fibrillation condition, the total impairment rating, in accordance with Chapter 15 of GARP M, is 12.
Left knee condition – “left knee medial meniscal tear and varus malalignment” and “arthrodesis of the tibiofibular joint”
Chapter 3 of GARP M deals with impairment of the spine and limbs. Part 3.2, which includes Tables 3.2.1–3.2.5, deals with the lower limbs.
On the basis of the relevant medical evidence before it, the Tribunal makes the following findings.
Table 3.2.1 – Loss of Musculoskeletal Function: Lower Limb Joints
On the basis of Mr Hill’s evidence that the applicant has a “very mild flexion contracture” in respect of his left knee joint – namely a loss of 5 degrees in a normal range of movement of 0–120/140 degrees – the Tribunal finds that the appropriate impairment rating, in accordance with Table 3.2.1, is NIL.
Table 3.2.2 – Loss of Musculoskeletal Function: Lower Limbs (Based on Use of Both Lower Limbs Together)
There is no dispute that the appropriate impairment rating, in accordance with Table 3.2.2, is TEN. On the basis of the reports of Dr Dobson and Mr Hill, the Tribunal so finds.
Tables 3.2.3 – 3.2.5
It is common ground, and the Tribunal accepts, that none of these tables is applicable in respect of the applicant’s left knee condition.
Part 3.4: Resting Joint Pain
Part 3.4 of Chapter 3 of GARP M, which deals with “resting joint pain” and includes Table 3.4.1, states as follows:
“ PART 3.4: RESTING JOINT PAIN
An additional rating is to be given from Table 3.4.1 for certain joint pain. This table is to be applied only for frequent joint pain that continues to affect a joint when the joint is no longer in use: for example, pain in the knees continuing for a significant period after ceasing walking and standing, or pain in the shoulders persisting for a significant period after ceasing some task such as hanging out the washing. Pain that limits range of movement or distance that can be walked is already assessed elsewhere (Tables 3.2.1 and 3.2.2).
Table 3.4.1 may be applied for pain in both the upper limbs and lower limbs and intervertebral joints. Only one selection may be made from this table for pain in any joint or combination of joints. However, the table is not to be applied to rate sciatic pain. Sciatic pain is to be rated by applying Table 3.2.2.”

Other Impairment

Table 3.4.1

RESTING JOINT PAIN

Impairment Ratings Criteria

NIL Pain in any joint, or combination of joints, that is not usually present at rest.

TWO
·   Pain in any joint, or combination of joints, that is often present at rest but which is mild.

·   Pain in the back that limits comfortable sitting to less than 30 minutes at a time.

FIVE
·   Pain in any joint, or combination of joints, that is often present at rest but which improves after several hours rest or responds to medication or to therapeutic measures.

·   Pain in the back that limits comfortable sitting to less than 10 minutes at a time.

TEN Severe pain in any joint, or combination of joints, that is often present at rest but which does not respond adequately to medication or to therapeutic measures.

FIFTEEN Severe pain in any joint, or combination of joints, that is always present at rest but which does not respond adequately to medication or to therapeutic measures and which regularly interferes with sleep.

Only one selection is to be made from this table for pain in any joint or combination of joints.

No age adjustment permitted for this table.

On the basis of:
·Dr Dobson’s report of 9 January 2012 and the accompanying “Medical Impairment Assessment” forms completed by him in which, in answer to the question whether the applicant experienced pain in the knee joint when resting, he indicated “Yes” and commented that the applicant “has a constant pain at a low level” (T40, p 132); and
·Mr Hill’s report of 21 January 2014 in which it is stated that the applicant “has knee pain which is often present at rest but which is mild”;
the Tribunal finds that the appropriate impairment rating, in accordance with Table 3.4.1, is TWO.
Total impairment rating in respect of left knee condition
It follows from the findings referred to in paragraphs 52 and 55 above that the Tribunal finds that, in respect of the applicant’s left knee condition, the total impairment rating, in accordance with Chapter 3 of GARP M, is 12.
Chapter 17 – Disfigurement and Social Impairment
Chapter 17 of GARP M, which deals with “disfigurement and social impairment” and includes Table 17.1, relevantly states as follows:
“ CHAPTER 17
DISFIGUREMENT AND SOCIAL IMPAIRMENT
INTRODUCTION
This chapter is to be applied when assessing conditions that cause disfigurement and embarrassment.
Only one rating may be determined by applying this chapter for any condition or combination of conditions. The rating determined by applying this chapter is to be combined with any other ratings for the disfiguring condition or combination of conditions determined under other chapters.
…
Calculation of the impairment rating for disfigurement.
Follow the steps below to calculate the impairment rating due to disfigurement.
(Each step is elaborated in the following pages.)

STEP 1 Determine the impairment rating from Table 17.1 for the effect of all accepted conditions that cumulatively lead to disfigurement. Page 184

STEP 2 If non-accepted conditions have contributed to the disfigurement, apply Chapter 19 (Partially Contributing Impairment) to adjust the rating determined in Step 1. Page 186
Step 1:   Determine the impairment rating from Table 17.1 for the effect of all accepted conditions which cumulatively lead to disfigurement.
For the purposes of Table 17.1, the following definitions apply:
‘disfiguring condition’ means any noticeable condition that causes the sufferer embarrassment in ordinary public places and may include, but is not limited to, the following:
•        facial scarring;
•        exfoliative skin disorders;
•        disorders of gait or posture;
•involuntary facial expressions, or unusual or grotesque involuntary bodily movements;

• disorders of speech;
•vile odours which cannot be overcome by the use of deodorants or the application of normal oral hygiene;
•deficits of the visual field which may cause the veteran to lurch into people through not seeing them;
•painful conditions which may cause the veteran to cry out involuntarily (for example, in response to a sudden pain in a joint); and
•severe pruritic conditions which cause the veteran to scratch even though normal behaviour in a public place would recommend restraint.

‘ordinary public places’ includes suburban streets, shopping centres, public transport, theatres, clubs and many sporting venues, but does not include places where a great part of the skin is customarily bared such as swimming pools and beaches.
‘avoidance’ means the veteran feeling obliged as a result of embarrassment to restrict his or her use of public places to hours when few people are about, or to avoid totally use of public places at certain times, for example, when school children are likely to be about.”

Functional Loss Table 17.1

DISFIGUREMENT

Impairment Ratings

Criteria

NIL

·   A visible condition that the veteran does not consider to be disfiguring.

·   A noticeable condition that is not significantly disfiguring and which causes negligible or slight embarrassment such as some acne scars on face, or minor limps, or a slight stoop.

TWO

·   A noticeable condition. For example, severe acne scars, a unilateral squint, an intermittent stutter or stammer.

·   A noticeable condition which causes significant embarrassment and may cause avoidance of some normal activities. For example, an ungainly gait, a gross stoop, a persistent stutter or stammer, or an unsightly skin disorder.

FIVE

A very noticeable condition which causes marked embarrassment to some people in ordinary social contacts and causes avoidance of some normal activities. For example, a severe skin disorder of the face and/or hands, or a gross and persistent stutter or stammer.

TEN

·   A very noticeable condition which causes marked embarrassment and results in the avoidance of many normal activities. For example, moderate facial disfigurement.

·   A severe and marked condition which causes embarrassment and causes much avoidance of many public places and social intercourse. For example, severe facial disfigurement.

FIFTEEN

A particularly severe and marked condition which causes extreme embarrassment and results in avoidance of public places and social intercourse to as great a degree as possible. For example, very severe facial disfigurement.

Only one rating is to be selected from this table for any condition or group of conditions which contribute to disfigurement.
No age adjustment permitted for this table
“Both the objective and subjective components of a disfiguring condition are to be taken into account when applying Table 17.1. The objective component is the actual physical and/or temporal extent of the disfiguring condition as perceived by others. The subjective component is the veteran’s own emotional and behavioural reactions to the disfigurement.
…”

As regards the applicant’s atrial fibrillation condition, the applicant’s evidence was (relevantly) that, if an attack occurs, he feels “very distressed and embarrassed” although he does not “avoid public places because of fear of an attack”. Furthermore, Dr Tofler, in the relevant “Medical Impairment Assessment” form completed by him on 31 July 2012, stated:
·“if an attack occurs at work [the applicant] is obliged to tell his colleagues about his heart condition, thus causing him embarrassment”;
·“[the applicant] is embarrassed and frustrated when an attack occurs in public”.
In answer to the question: “Does the resulting embarrassment cause him to avoid ordinary public places all or some of the time?”, Dr Tofler answered: “No”. (original emphasis) (T53, p 183)
As regards the applicant’s left knee condition, the applicant’s evidence (Exhibit A1) was (relevantly) that his knee “causes [him] to walk with a noticeable limp” and his “knee pain affects [his] sleeping ability and results in [him] becoming cranky” but he did not refer to his left knee condition in relation to social impairment. Furthermore, both Dr Dobson (T40, p 132) and Mr Hill (in his report of 21 January 2014 – part of Exhibit R2) noted that the applicant’s left knee condition does not cause him embarrassment in ordinary public places.
Having regard to the evidence referred to in paragraphs 58–59 above, the Tribunal finds that the appropriate impairment rating, in accordance with Table 17.1 is TWO (comprising an impairment rating of TWO in respect of the applicant’s atrial fibrillation condition and an impairment rating of NIL in respect of the applicant’s left knee condition).
Combined impairment rating
The combined impairment rating is determined in accordance with Chapter 18 of GARP M and the Combined Values Chart (Table 18.1).
Applying Table 18.1, the abovementioned impairment ratings, as found by the Tribunal, namely:
·12   –   in respect of the applicant’s atrial fibrillation condition;
·12   –   in respect of the applicant’s left knee condition; and
·2     –   in respect of disfigurement and social impairment caused by the abovementioned conditions;
result in a combined impairment rating of 25, and the Tribunal so finds.
Lifestyle effects
The “lifestyle effects” of accepted conditions, which comprise an additional element in determining the amount of permanent impairment compensation payable under the MRC Act, are the subject of Chapter 22 of GARP M.
The Introduction to Chapter 22 of GARP M (as in force at all material times) stated as follows:
“ CHAPTER 22
LIFESTYLE EFFECTS
INTRODUCTION
This chapter is to be used to assess lifestyle effects of accepted conditions.
What is a lifestyle effect?
A lifestyle effect is a disadvantage, resulting from an accepted condition, that limits or prevents the fulfilment of a role that is normal for a veteran of the same age without the accepted condition.
Optional methods of assessment
There are three optional methods of assessing lifestyle effects. The veteran may choose which of these methods is to be used for his or her assessment. Except where otherwise indicated, the determining authority is to make its assessment on the basis of the last choice made by the veteran and notified to the determining authority. Where no option has been or can be chosen, the determining authority is to determine a lifestyle rating by following the procedure described under ‘Option 2’ below.
Option 1 allows a veteran to self-assess the effects of the accepted conditions on his or her lifestyle. The veteran must complete a Lifestyle Rating Self Assessment Form. The form covers the four key components of lifestyle (personal relationships, mobility, recreational and community activities, and employment and domestic activities) and is in accord with Tables 22.1 to 22.5.
The self-assessed rating should not usually be queried although further information may be requested if necessary. It is expected that the self-assessed lifestyle rating would be broadly consistent with the level of impairment. A determining authority may reject a self-assessment of lifestyle rating because it overestimates, or underestimates, the level of rating that is broadly consistent with the level of impairment from accepted conditions.
If a determining authority rejects a veteran’s self assessment on the ground that it is an underassessment, the determining authority is to substitute its own lifestyle rating for the one chosen by the veteran, provided that the new rating is higher than the original self-assessed rating.
If a determining authority rejects a veteran’s self assessment on the ground that it is an overassessment, the veteran is to be given a second opportunity to complete a Lifestyle Questionnaire. If after having been given the opportunity the veteran completes a Lifestyle Questionnaire, the determining authority is to determine a new lifestyle rating by following the procedure described under ‘Option 3’ below. If after having been given the opportunity the veteran does not complete a Lifestyle Questionnaire, the determining authority is to determine a new lifestyle rating by following the procedure described under ‘Option 2’ below.
Option 2 is to be used if the veteran chooses not to self-assess or to complete a Lifestyle Questionnaire. Under this option the determining authority should generally allocate a lifestyle rating based on the level of medical impairment. This rating is not to be less than the higher of the ratings contained in the ‘shaded area’ of Tables 23.1 and 23.2 in Chapter 23 (Calculating Permanent Impairment Compensation).
In unusual cases the determining authority may, in the light of information available to it, decide to allocate a rating in excess of the higher of the ratings contained in the ‘shaded area’ of Tables 23.1 and 23.2 in Chapter 23 (Calculating Permanent Impairment Compensation).
Option 3 is to be used if the veteran completes a Lifestyle Questionnaire. The determining authority is to use the information in the completed Lifestyle Questionnaire, together with all other relevant information available to it, to allocate ratings in accordance with Tables 22.1 to 22.5. The ratings are to reflect the impact of the impairment from accepted conditions on the four key components of a person’s lifestyle (personal relationships, mobility, recreational and community activities, and employment and domestic activities).
How are lifestyle effects assessed?
The effects of impairment on lifestyle are specific to a veteran. and are determined by reference to four components of that veteran’s life:
•        personal relationships,
•        mobility,
•        recreational and community activities, and
•        employment and domestic activities.
All are of equal weight.
Pain, suffering, impaired memory or concentration, or interference with sleep or sleeping arrangements, that result from the accepted conditions must be taken into account. The rating that best accommodates the veteran’s circumstances is to be selected from the descriptions in Tables 22.1 to 22.5.
…”

In the present case the applicant completed a “Lifestyle Rating Option 3” form on 10 February 2012 (T42) and he subsequently, on 8 August 2012, completed a “Lifestyle Questionnaire” form (T52). He also commented on the relevant lifestyle effects in his witness statement (Exhibit A1).
Having regard to the whole of the evidence before it, the Tribunal makes the following determinations of lifestyle ratings in accordance with Tables 22.1–22.5 in Chapter 22 of GARP M.
Table 22.1 – Personal relationships
In the Tribunal’s assessment, the criterion in Table 22.1 which most appropriately describes the effect of the applicant’s accepted atrial fibrillation and left knee conditions on his personal relationships is as follows:
“ Mildly affected personal and social relationships. Social contacts and activities are reduced, veteran’s participation in the accustomed range of activities is restricted.”
Accordingly, the Tribunal determines that the appropriate lifestyle rating, in accordance with Table 22.1, is TWO.
Table 22.2 – Mobility
In the Tribunal’s assessment, the criterion in Table 22.2 which most appropriately describes the effects of the applicant’s abovementioned accepted conditions on his mobility is as follows:
“ Mild effects on mobility, eg slowing of pace in some circumstances, or need for a walking stick.”
Accordingly, the Tribunal determines that the appropriate lifestyle rating, in accordance with Table 22.2, is TWO.
Table 22.3 – Recreational and community activities
In the Tribunal’s assessment, the criterion in Table 22.3 which most appropriately describes the effects of the applicant’s abovementioned accepted conditions on his normal recreational and community activities is as follows:
“ Mild but constant interference with accustomed recreational pursuits and community activities, but is able to continue with them – even if less frequently – or to enjoy alternatives.”
Accordingly, the Tribunal determines that the appropriate lifestyle rating, in accordance with Table 22.3, is TWO.
Table 22.4 – Domestic activities
In the Tribunal’s assessment, the criterion in Table 22.4 which most appropriately describes the effects of the applicant’s abovementioned accepted conditions on his domestic activities is as follows:
“ Unable to perform heavy activities, but able to carry out lighter household tasks, taking breaks during sustained activity, for example:
·mowing the lawn;
·washing the car;
·performing light maintenance or gardening activities if working at own pace, taking breaks as necessary.”
Accordingly, the Tribunal determines that the appropriate lifestyle rating, in accordance with Table 22.4, is THREE.
Table 22.5 – Employment activities
In the Tribunal’s assessment, the criterion in Table 22.5 which most appropriately describes the effects of the applicant’s abovementioned accepted conditions on his employment activities is as follows:
“ Able to carry out usual employment that is affected intermittently.”
Accordingly, the Tribunal determines that the appropriate lifestyle rating, in accordance with Table 22.5, is ONE.
Finding – final lifestyle rating
On the basis of the abovementioned lifestyle ratings determined in accordance with Tables 22.1–22.5, the Tribunal finds that the final lifestyle rating, in accordance with Chapter 22 of GARP M, is 2.
Calculating permanent impairment compensation
Chapter 23 of GARP M prescribes the method for calculating the amount of permanent impairment compensation payable to a person under Part 2 of the MRC Act. That method involves combining the combined impairment rating determined in accordance with Table 18.1 with the final lifestyle rating determined in accordance with Chapter 22 and applying the relevant table in Chapter 23 in order to determine the appropriate “compensation factor”. That “compensation factor” is then multiplied by the maximum weekly amount of compensation which is payable under the MRC Act.
In the applicant’s case, the relevant table in Chapter 23 is Table 23.2 which relates to “peacetime service”. Applying Table 23.2, on the basis of a combined impairment rating of 25 and a final lifestyle rating of 2 (as found by the Tribunal), the appropriate compensation factor is 0.149, and the Tribunal so finds.
It is common ground that the maximum weekly amount of compensation which is presently payable under the MRC Act is $316.07. Accordingly, the Tribunal finds that the amount of weekly compensation that would be payable to the applicant – subject to the offsetting necessitated by the fact of lump sum permanent impairment compensation in the amount of $46,725.05 having been paid to the applicant pursuant to ss 24 and 27 of the SRC Act in September 2007 (see paragraphs 81-85 below) – is $47.09.
Offsetting
Section 13 of the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 (Cth) (“Transitional Act”), as in force at all material times, provided as follows:
“ 13     Bringing across impairment points from a VEA or SRCA injury or disease
(1)    This section applies if:
(a)a claim is made under section 319 of the MRCA in respect of a person who also has:
(i)   a separate war-caused or defence-caused injury or disease (within the meaning of the VEA) (the old injury or disease); or
(ii) a separate injury or disease (within the meaning of the SRCA) (the old injury or disease); or
(b) a claim is made under section 319 of the MRCA in respect of an aggravation of, or a material contribution to:
(i)a war-caused or defence-caused injury or disease of a person (within the meaning of the VEA) (the old injury or disease); or
(ii)an injury or disease of a person (within the meaning of the SRCA) (the old injury or disease);
or a sign or symptom of such an injury or disease.
(2)    The Commission must determine the impairment points constituted by the impairment suffered by the person from the old injury or disease using the guide under section 67 of the MRCA.
(3)    For the purposes of determining under the MRCA the number of impairment points constituted by an impairment suffered by a person, the Commission must count the impairment points determined for the old injury or disease under subsection (2) towards the person’s total impairment points.
(4)    The Commission may include in the guide under section 67 of the MRCA one or more methods of working out the amount of compensation a person is entitled to under Part 2 of Chapter 4 of the MRCA (permanent impairment) for the service injury or disease. A method may (but does not have to) include a method of offsetting payments made to the person under the VEA or the SRCA in respect of the old injury or disease.”
In s 4(1) of the Transitional Act:
·“MRCA” is defined to mean “the Military Rehabilitation and Compensation Act 2004”;
·“SRCA” is defined to mean “the Safety Rehabilitation and Compensation Act 1988”;
·“VEA” is defined to mean “the Veterans’ Entitlements Act 1986”.
Pursuant to s 13(4) of the Transitional Act, Chapter 25 of GARP M prescribes a method of working out the amount of compensation payable under the MRC Act to a person who has an injury or disease for which liability to pay compensation has previously been accepted under the SRC Act, including a method of offsetting payments made to that person under the SRC Act in respect of that injury or disease. Chapter 25 relevantly states as follows:
“ This Chapter deals with situations where an injury or disease (the condition) has been accepted under the VEA or the SRCA before a claim is made under the MRCA. The claim under the MRCA may be for a new condition unrelated to the first or for an aggravation of the pre-existing condition. The method to deal with amounts of compensation already paid for the condition and the amount due under the MRCA now or later is described below.
…
Bringing across impairment points from an unrelated SRCA injury or disease
A claim made under section 319 of the MRCA may result in liability for an injury or disease being accepted and compensation payable. Where a person entitled to a payment under MRCA in respect of permanent impairment was or is paid a lump sum for permanent impairment under the SRCA or liability for a condition accepted under the SRCA the combined impairment must be determined under the MRCA using this Guide. An accepted liability under the SRCA is referred to as the old injury or disease.
This may not result in a greater impairment rating, or result in a compensation periodic payment because it is too small to meet the threshold value. It may also be that it is only a temporary change. In the latter case liability is established for the purpose of paying incapacity payments.
The impairment resulting from any old injury or disease must be determined using this Guide as at the date of the MRCA determination. The points so derived for the old injury or disease must then be combined using the combined impairment table to determine the overall impairment assessment for the purpose of the MRCA.
IR — Impairment Rating
S — Old SRCA injury or disease
M — MRCA injury or disease
Total IR(S + M) = combined [IR(S) + IR(M)]
Determine the lifestyle effect of both M and S taken together.
The SRCA lump sum, converted to a periodic payment, is subtracted from the MRCA periodic payment to get the net MRCA periodic payment.
In order to calculate the net MRCA periodic payment the SRCA lump sum must be converted to a periodic payment. The SRCA amount is converted to a current lump sum value (by multiplying by the ratio of the current value for maximum SRCA section 24 payment to the value when the lump sum payment was made) and the amount converted to a periodic payment by dividing by an age-based number provided by the Australian Government Actuary for this purpose. The age to be used in applying this age-based number is the age the person was at the time the SRCA lump sum was paid. The amount is indexed annually (on 1 July) using the indexation factor calculated under section 404 of the MRCA.
The net MRCA periodic payments continue for life or can be converted to a lump sum in accordance with section 78 of the MRCA.
…”
In James v Military Rehabilitation and Compensation Commission (2010) 186 FCR 134 the Federal Court of Australia (Full Court) said (at 142–143, 144 [34], ]36], [41]):
“ The guide contemplated by s 67(1) of the MRC Act is required to be concerned with the determination for the purposes of s 68(2) of ‘the degree of impairment suffered by the person as a result of the compensable condition’, being the ‘service injuries or diseases … of the person’ referred to in s 68(1). That expression does not include an injury or injuries suffered prior to the operation of the MRC Act. That is hardly surprising: such injuries are compensable under the SRC Act or the VE Act. It is s 13(4) of the Transitional Act which expressly addresses the relationship between the service injury which constitutes the compensable condition for the purposes of s 68 of the MRC Act and earlier injuries which were compensable under the earlier regime. It is difficult to see that there is anything in Ch 25 of the GARP M regime which is not expressly authorised by s 13: the terms of Ch 25 mirror the provisions of s 13(4), and s 13(4) expressly authorises the inclusion in the guide produced under s 67 of the MRC Act of a method for offsetting compensation paid under the VE Act or SRC Act for previous injuries.
…
It was argued on Lt James’ behalf that Ch 25 of GARP M may be applied to produce a negative figure, and that is said to be a result so absurd that it cannot be attributed to the legislature. It is fair to say, however, that it was acknowledged on Lt James’ behalf that a negative figure does not oblige the claimant to make any payment to the Commonwealth: it simply means that no compensation is payable for the impairment the subject of a claim under the MRC Act. The difficulty we have with the argument advanced on behalf of Lt James, and which, in the end, we consider to be insuperable, is that Ch 25 of GARP M is expressly authorised by the text of s 13(4) of the Transitional Act. There is no way of reading that text down so as to rob Ch 25 of GARP M of the support afforded by that text. …
…
… Section 13(4) of the Transitional Act specifically contemplates that entitlements under the SRC Act may be offset by GARP M against MRC Act entitlements, without fixing a limit as to the effect of that setting off before reaching the point of zero entitlement.”
In the present case it is common ground that the “current lump sum value” of the lump sum compensation payment of $46,725.05 made to the applicant under the SRC Act in September 2007 is $53,953.62. It is also common ground that, by applying the “Government Actuary Tables: Age-based numbers for converting a lump sum paid under the SRCA, and paid on or after 1 July 2004 and before 3 February 2010, to an equivalent lifetime weekly amount for the purposes of sections 13 and 14 of the MRC (C&TP)A”, the amount of $53,953.62 is, in the applicant’s case, converted to a weekly amount of $49.50.
The application of Chapter 25 of GARP M requires the abovementioned weekly amount of $49.50 (representing the current lump sum value of the lump sum payment made to the applicant under the SRC Act in September 2007) to be subtracted from the weekly amount of $47.09 that (as previously found by the Tribunal) would be payable to him under the MRC Act, thereby resulting in a “negative figure”. As mentioned by the Full Federal Court in James (at 143 [36]), however, the production of a “negative figure”, by the application of Chapter 25 of GARP M, “does not of itself oblige the [applicant] to make any payment to the Commonwealth”. Rather, “it simply means that no compensation is payable for the impairment the subject of a claim under the MRC Act.”
Conclusion
On the basis of the abovementioned findings, the Tribunal determines that no amount of permanent impairment compensation is payable to the applicant under the MRC Act in respect of his accepted conditions of “atrial fibrillation”, and “left knee medial meniscal tear and varus malalignment” and “arthrodesis of the tibiofibular joint”.
The Tribunal notes, in conclusion, that its abovementioned determination is less favourable to the applicant than the “reviewable decision” of 19 February 2013 (the decision under review) which was itself substantially less favourable to the applicant than the determination of 5 September 2012 but which, nevertheless, confirmed that determination “in order to avoid raising an overpayment” against the applicant (see para 2.23 of the respondent’s Statement of Facts, Issues and Contentions filed in this proceeding). The Tribunal understands that, following the determination of 5 September 2012, a lump sum compensation payment in the amount of $65,666.94 was made to the applicant by the respondent on 9 October 2012 (Attachment 1 to the respondent’s Statement of Facts, Issues and Contentions), and that, in the event of a decision by the Tribunal which is less favourable to the applicant, the respondent will not seek to recover the amount of the overpayment from him. That, of course, is a matter for the respondent.
Decision
For the above reasons the decision under review is set aside and, in substitution therefor, it is decided that no amount of permanent impairment compensation is payable to the applicant under s 68 of the MRC Act in respect of his accepted conditions of “atrial fibrillation”, and “left knee medial meniscal tear and varus malalignment” and “arthrodesis of the tibiofibular joint”.

I certify that the preceding 88 (eighty -eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop

..........[sgd D Brodie].......................................................
Administrative Assistant
Dated 16 May 2014

Dates of hearing 26 November 2013, 31 March 2014

Applicant In person (unrepresented)

Counsel for the Respondent Mr B Dube

Solicitors for the Respondent Sparke Helmore

[2014] AATA 304

Key Legal Topics

Areas of Law

Administrative Law

Legal Concepts

Administrative Decision (Merits Review)

Jurisdiction

Statutory Interpretation

Compensatory Damages

Remand

Division	Veterans' Appeals Division
File Number	2013/1700
Re	Gary Sinclair
APPLICANT
And	Military Rehabilitation and Compensation Commission
RESPONDENT

Tribunal	Deputy President S D Hotop
Date	16 May 2014
Place	Perth

Table 15.1
INTERMITTENT ATTACK SEVERITY
Level	Criteria
0	Minor symptoms that are easily tolerated.
I	Mild to moderate symptoms that are irritating or unpleasant but that rarely prevent completion of any activity. Symptoms may cause loss of efficiency in some activities.
II	More severe symptoms, that are distressing, but prevent few everyday activities. Loss of efficiency is discernible elsewhere. Self-care is unaffected and independence is retained.
III	Loss of efficiency is discernible in many everyday activities. Some elements of self-care are restricted but, in most respects, independence is retained. Bed-rest is often necessary during an attack.
IV	Major restrictions in many everyday activities. Capacity for self-care is increasingly restricted, leading to partial dependence on others.
V	Most everyday activities are prevented. Dependent on others for many kinds of self-care. Able to be maintained at home only with considerable difficulty, or hospital admission is required.
VI	Total incapacity. Unconscious or delirious. Self-care is impossible.

Functional Loss Table 15.5
INTERMITTENT IMPAIRMENT: PRECLUDED AND AVOIDED ACTIVITIES
Impairment Ratings	Criteria
NIL	Not prevented by fear of an attack from any significant activities. Can lead a normal life between attacks without the need to take long term medication.
TWO	Must avoid relatively few activities for fear of precipitating an attack. Or Can lead a fairly normal life between attacks but must take long term medication.
FIVE	Must avoid some activities such as driving a car, using machinery, using public transport, swimming, travelling, being alone except for short periods of time lest an attack occur.
TEN	Must avoid a wide range of activities such as driving a car, using machinery, using public transport, swimming, travelling, being alone except for short periods of time lest an attack occur with possible severe consequences.
Only one rating may be had from this table for any given condition. Intermittent conditions may attract a rating from Table 15.5 as well as a rating or ratings from either Table 15.4 or the system specific tables.

Other Impairment Table 3.4.1
RESTING JOINT PAIN
Impairment Ratings	Criteria
NIL	Pain in any joint, or combination of joints, that is not usually present at rest.
TWO	· Pain in any joint, or combination of joints, that is often present at rest but which is mild. · Pain in the back that limits comfortable sitting to less than 30 minutes at a time.
FIVE	· Pain in any joint, or combination of joints, that is often present at rest but which improves after several hours rest or responds to medication or to therapeutic measures. · Pain in the back that limits comfortable sitting to less than 10 minutes at a time.
TEN	Severe pain in any joint, or combination of joints, that is often present at rest but which does not respond adequately to medication or to therapeutic measures.
FIFTEEN	Severe pain in any joint, or combination of joints, that is always present at rest but which does not respond adequately to medication or to therapeutic measures and which regularly interferes with sleep.
Only one selection is to be made from this table for pain in any joint or combination of joints.

STEP 1	Determine the impairment rating from Table 17.1 for the effect of all accepted conditions that cumulatively lead to disfigurement.	Page 184
STEP 2	If non-accepted conditions have contributed to the disfigurement, apply Chapter 19 (Partially Contributing Impairment) to adjust the rating determined in Step 1.	Page 186

Functional Loss Table 17.1
DISFIGUREMENT
Impairment Ratings	Criteria
NIL	· A visible condition that the veteran does not consider to be disfiguring. · A noticeable condition that is not significantly disfiguring and which causes negligible or slight embarrassment such as some acne scars on face, or minor limps, or a slight stoop.
TWO	· A noticeable condition. For example, severe acne scars, a unilateral squint, an intermittent stutter or stammer. · A noticeable condition which causes significant embarrassment and may cause avoidance of some normal activities. For example, an ungainly gait, a gross stoop, a persistent stutter or stammer, or an unsightly skin disorder.
FIVE	A very noticeable condition which causes marked embarrassment to some people in ordinary social contacts and causes avoidance of some normal activities. For example, a severe skin disorder of the face and/or hands, or a gross and persistent stutter or stammer.
TEN	· A very noticeable condition which causes marked embarrassment and results in the avoidance of many normal activities. For example, moderate facial disfigurement. · A severe and marked condition which causes embarrassment and causes much avoidance of many public places and social intercourse. For example, severe facial disfigurement.
FIFTEEN	A particularly severe and marked condition which causes extreme embarrassment and results in avoidance of public places and social intercourse to as great a degree as possible. For example, very severe facial disfigurement.
*Only one rating is to be selected from this table for any condition or group of conditions which contribute to disfigurement.*

Dates of hearing	26 November 2013, 31 March 2014
Applicant	In person (unrepresented)
Counsel for the Respondent	Mr B Dube
Solicitors for the Respondent	Sparke Helmore