Geoffery James Dillon v Military Rehabilitation & Compensation Commission
[2007] AATA 46
•2 February 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 46ADMINISTRATIVE APPEALS TRIBUNAL )
)
GENERAL ADMINISTRATIVE DIVISION ) No Q2005/588 Re GEOFFERY JAMES DILLON Applicant
And
MILITARY REHABILITATION & COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Member S C Fisher Date2 February 2007
PlaceBrisbane
Decision The Tribunal makes the following decisions:
(1) The decision under review is set aside and in substitution the Tribunal decides that the Applicant has a whole person impairment of 20 percent under Table 9.5 of the Guide to the Assessment of the Degree of Permanent Impairment.
(2) The matter is remitted to the Respondent to determine the correct amount of compensation that is payable to the
Applicant pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988.
(3) The Respondent is to pay the Applicant's costs as agreed or taxed.
.........[Sgd]........
S C Fisher
Member
CATCHWORDS
WORKERS’ COMPENSATION – permanent impairment – knee injury – 10% or 20% whole person impairment – consideration of term ‘difficulty’ – difficulty with distances to warrant higher rating under Table 9.5
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 19, 24, 27, 67
Administrative Appeals Tribunal Act 1975 ss 37, 43Secretary, Department of Social Security v Murphy (1998) 52 ALD 268; [1998] FCA 809
Ajka Pty Ltd v Australian Fisheries Management Authority (2003) 74 ALD 21; [2003] FCA 248
Bantick and Secretary, Department of Family and Community Services [2003] AATA 472
Bramwell v Repatriation Commission (1998) 158 ALR 623; (1998) 28 AAR 342; (1998) 51 ALD 56
Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598
Chowhan and Secretary, Department Of Family and Community Services [2004] AATA 1236
Re Whelan and Department of Defence (1997) 47 ALD 383
Comcare v Moon [2003] FCA 569; (2003) 75 ALD 160Hemley and Military Rehabilitation and Compensation Commission [2006] AATA 128
Watkins and Comcare [2002] AATA 613
Comcare v Roser [2003] FCA 243
Comcare v Van Grinsven [2002] FCA 371
Re Jones and Department of Defence (AAT 13357, 8 October 1998)
Re Nguyen and Comcare Australia (AAT 10133, 18 April 1995)
Whittaker v Comcare (1998) 86 FCR 532; (1998) 28 AAR 55
Saxton and Military Rehabilitation and Compensation Commission [2005] AATA 1059
Comcare v Fiedler (2001) 115 FCR 328
Millen and Military Rehabilitation and Compensation Commission [2005] AATA 555
Lidgett and Comcare (Department of Veterans’ Affairs) [2003] AATA 910
Rogers v Whittaker (1992) 175 CLR 479
Riley v Commission for the Safety, Rehabilitation and Compensation of Commonwealth Government Employees (1994) 121 ALR 477REASONS FOR DECISION
2 February 2007 Mr S C Fisher, Member Introduction and Background
1. Mr Geoffery James Dillon ("Mr Dillon" or "the Applicant") has been a member of the Australian Regular Army since 6 February 1996. The Applicant currently holds the rank of Private in the Infantry Corps.
2. This appeal involves a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (“the Act” or “SRCA”).
3. On 22 April 2005, the Applicant submitted separate claims for compensation for left knee condition and right knee condition arising from injuries that occurred at work.
4. On 4 July 2005, the Military Compensation and Rehabilitation Service ("the Respondent") accepted liability for injury arising out of the course of Mr Dillon's employment by the Army for "aggravation of chondromalacia patellae, left knee” and "chondromalacia patellae, right knee”.
5. On 7 July 2005, the Respondent made a determination of a 10% whole person impairment of the left knee and the right knee according to Table 9.5 of the Guide to the Assessment of the Degree of Permanent Impairment (2nd ed, 2005). Under the Safety, Rehabilitation and Compensation Act 1988 compensation was awarded in the amount of $28,703.37. This amount comprised of $13,750.11 for impairment under section 24 of the Act, and $14,953.26 under section 27 for non-economic loss.
6. On 20 July 2005, the Applicant requested reconsideration of the Respondent’s decision of 7 July 2005, with the submission that an assessment be made pursuant to Table 9.5 of 20% for whole person impairment. On 2 September 2005, the Respondent declined to make a determination of a 20% whole person impairment under Table 9.5.
7. On 14 September 2005 the Applicant lodged an appeal with the Tribunal seeking review of the decisions regarding both left and right knee conditions.
Jurisdiction
8. The Tribunal has jurisdiction in this appeal by virtue of Part VI of the Safety, Rehabilitation and Compensation Act 1988. References to statutory provisions are to provisions of the Act unless the context indicates otherwise.
The Role of the Tribunal
9. The role of the Tribunal is to review the merits of the decision before it: section 43 of the Administrative Appeals Tribunal Act 1975 and Secretary, Department of Social Security v Murphy (1998) 52 ALD 268; [1998] FCA 809. The Tribunal is guided by the norm that it should reach the correct and preferable decision on the basis of the material before it: Ajka Pty Ltd v Australian Fisheries Management Authority (2003) 74 ALD 21; [2003] FCA 248 at [33]. The Tribunal is required to stand in the shoes of the original decision-maker and consider all evidence anew, bearing in mind statutory provisions and any significant legal precedent: Bantick and Secretary, Department of Family and Community Services [2003] AATA 472 at [23]. The Tribunal proceeds de novo: Bramwell v Repatriation Commission (1998) 158 ALR 623; (1998) 28 AAR 342; (1998) 51 ALD 56 at 60 per Weinberg J. The Tribunal must base its decision upon the material that is logically probative of the existence of facts that emerge from the evidence before it: Collins v Minister for Immigration and Ethnic Affairs(1981) 36 ALR 598 at 601.
10. In Chowhan and Secretary, Department Of Family And Community Services [2004] AATA 1236, Member Christie said the following about the process of Tribunal review, which this Tribunal gratefully adopts:
“[32] The legislation is the only basis for the review of this administrative decision. Administrative decision-makers are not permitted to depart from the law. The Tribunal must make its decision on the merits of the case – but in accordance with the legal requirements imposed by the Act, together with the relevant legal principles that arise from decisions made by our Courts.
[33] Administrative decision-makers are generally required to address the evidence before them and not confine themselves to evidence before a prior decision-maker whose decision is being reviewed unless the relevant legislation requires a decision to be based upon the circumstances at a particular point of time: see Australian Tea Tree Oil Research Institute v Industry Research and Development Board (2002) 124 FCR 316 at 324-326; Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511 at 521; Jebb v Repatriation Commission (1988) 80 ALR 329 at 333). In Jebb, at 333, approved by Stone J in Australian Tea Tree Oil at 325, Davies J described decision-making in the Tribunal as generally a ‘continuum’ in which ‘the tribunal considers the applicant’s entitlement from the date of application, or other proper commencing date, to the date of the tribunal’s decision’.”
The Material Before the Tribunal
11.The following documentary evidence was before the Tribunal:
Exhibit 1 Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (documents T1 – T 28).
Exhibit 2Statement of Geoffery James Dillon dated 15 November 2005.
Exhibit 3Curriculum Vitae of Dr Brian Purssey ED.
Exhibit 4Extract from a medical report from Dr Brian Purssey.
12. The Applicant was represented by Mr R King-Scott of Counsel instructed by D’Arcys Solicitors. Exhibits 1 - 4 were lodged on behalf of the Applicant. The Applicant provided a Statement of Facts and Contentions to the Tribunal.
13. The Respondent lodged documents under section 37 of the Administrative Appeals Tribunal Act 1975 in relation to each appeal as described above. These documents were taken into evidence as Exhibit 1.
14. The Respondent was represented by Mr C J Clark of Counsel, who was instructed by the Australian Government Solicitor. The Respondent provided a Statement of Facts and Contentions to the Tribunal.
15. The Tribunal considered carefully all of the documentary and oral evidence before it.
Evidence on behalf of the Applicant
16. The Applicant gave evidence in person. Evidence was given on behalf of the Applicant by Dr Purssey.
Evidence of Mr Dillon
17. The evidence of the Applicant is summarised in the following account:
A.The Applicant said (through a letter from his solicitor to MCRS dated 28 April 2005) that his left knee condition arose "during 2000 when he fell down the steps at work, but subsequently regained his Medical Class 1 rating. In February 2004 whilst running at PT his knee ‘just went’ ...” The Applicant said further that in connection with his right knee "in November 2004 his knee began to get very sore at work in surgery was performed on it in March 2005".
B.The Applicant in his evidence said that he was currently awaiting medical discharge. His current work restrictions include no standing, no marching, no basic fitness assessment, no combat fitness assessment and no squatting.
C.The Applicant said that he can't march any more, but that he can walk 100 m to and from Battalion Headquarters.
D.The Applicant said that he walked from the train station to Counsel's Chambers on the morning of the hearing, a distance of about 600 – 700 m, but that this caused him pain and he required rest breaks.
E.The Applicant said that he could not walk 1km at all and that he suffers pain if he pushes himself on.
F.The Applicant said that sitting increases his pain in his knees. He is required to change posture in order to alleviate the pain. The applicant said that driving a motor vehicle causes him pain, and that is required to stop driving to stretch his legs. The Applicant said that army marches are "not on at all", and that he cannot participate in a 5km pack march.
G.The Applicant said that during his medical examinations, he had to perform short circuits involving walking along a corridor, up and down slopes and up and down stairs. The Applicant said that he managed the distance "okay", but found them to cause pain to his knees.
H.The Applicant said that before his knee problems became evident, he played a lot of sports, including rugby league, rugby union, cricket and athletics.
I.The Applicant said that his symptoms in respect of walking distances had become more evident since 2004.
J.In cross-examination, the Applicant admitted that that he recovered from a minor left knee injury sustained on 1 November 1996 during a confidence course.
K.In cross-examination, the Applicant admitted that he made a complete recovery in terms of his left knee injury after a left knee arthroscopy was performed on or about 13 November 2001 and that he had not had any left knee problems until February 2003.
L.The Applicant further admitted that he did not experience any left knee pain or complain to the regimental aid post of any left knee pain between February 2003 to January 2004.
M.In cross-examination, the Applicant said that his knee problems continued in September 2004.
N.The Applicant said that he was unsure if he followed the treatment regimes exactly as prescribed by treating doctors.
18. The Tribunal noted that the written statement of the Applicant (Exhibit 2) was consistent with his oral evidence.
Evidence of Dr Brian Purssey
19. The evidence of Dr Brian Purssey, Specialist in General Surgery and Orthopaedics (called by the Applicant) in these proceedings is summarised as follows:
A.The evidence-in-chief of Dr Purssey is in part contained in his report of 6 July 2005 (Exhibit 1, T25).
B.Dr Purssey examined the Applicant on 27 May 2005.
C.Dr Purssey made a diagnosis of "chondromalacia patella right knee" which became permanent from approximately 20 April 2005. Dr Purssey made an additional diagnosis "probable chondromalacia patella left knee. Partial electoral meniscectomy. Previous avulsion fracture of attachment medial collateral ligament to medial femoral condyle".
D.Dr Purssey said that both conditions were directly causally linked to trauma sustained to the knees as an infantry soldier. Dr Purssey said that there were no pre-existing underlying conditions.
E.Dr Purssey said that the applicant can rise to the standing position and walk, but has difficulty with grades, steps and distances leading to a 20% whole person impairment under Table 9.5.
F.Dr Purssey said that the Applicant had obvious difficulty walking up the flight of steps using the handrail and market difficulty coming down again using the handrail and moving slowly.
G.Dr Purssey said that a 43-year-old male should be able to walk not less than 10 km in the army.
H.In his report Dr Purssey said considered that the Applicant did not display any signs of illness behaviour.
Evidence on behalf of the Respondent
20. Dr Phillip Vecchio gave evidence on behalf of the Respondent.
Evidence of Dr Phillip Vecchio
21. Dr Phillip Vecchio, Specialist Rheumatologist, gave evidence on behalf of the Respondent. Dr Vecchio provided a report dated 25 May 2005 which was part of Exhibit 1, T19 in this proceeding. Dr Vecchio examined the Applicant on 19 May 2005. A summary of the evidence of this witness is as follows:
A.Dr Vecchio diagnosed "left lateral mensiscus posterior horn tear and chondromalacia patellae, and avulsion fracture of the medial femoral condylar attachment of the medial collateral ligament" and "right chondromalacia patellae".
B.Dr Vecchio said that the conditions are permanent and stand-alone conditions and that there is a probable causal relationship between these conditions and military employment. Dr Vecchio said that it is unlikely that the Applicant would have suffered the condition if not for military employment. Dr Vecchio said that further exacerbations from military employment also aggravated his condition.
C.Dr Vecchio said that the Applicant has demonstrated objective difficulty with stair incline and descent, with a 10% whole person impairment rating under Table 9.5 for the bilateral knee conditions.
D.Dr Vecchio provided a summary in these terms:
Although Mr Dillon has sustained range of motion bilaterally, he does exhibit difficulty with stair and decline descent, which is typical of chondromalacia patella. With both knees affected, it is difficult to discern whether either knees subjected alone to this condition would exhibit a similar degree of difficulty. Therefore, although I am able to state categorically that there is cumulative difficulty with both knees, I am unable to state that either knee would also exhibit a similar difficulty with stair descent and declines. On its own, the pathology within each knee is not severe and likely inadequate to result in gait disturbance. The cumulative summation of the disturbances within both knees function has resulted in the impairment discussed, and it is considered in unison.
E.Dr Vecchio said that he had read Dr Purssey’s report. In his opinion, Dr Purssey had extrapolated difficulties with distances from 100 m to more than 100 m. Dr Vecchio said that the lack of objective findings following arthroscopy investigations didn't match the symptoms reported by the Applicant.
F.In cross-examination, Dr Vecchio engaged in a debate with Counsel for the Applicant concerning the interpretation of various key integers in the instructions from the Respondent to Dr Vecchio such as the differences between pain and difficulty, and what difficulty with distances meant within Table 9.5.
G.Dr Vecchio agreed with a proposition put to him that "some distances" were within the 20% level of Table 9.5 and what "distance" was a reasonable distance. Dr Vecchio agreed that if the Applicant was fit and healthy, the Applicant should be able to walk more than 100 m.
H.In re-examination, Dr Vecchio said that the Applicant had real objective difficulties travelling up and down stairs and along inclines.
Other Medical Evidence
22. The Tribunal reviewed medical reports from Dr Lowe, Orthopaedic Surgeon (reports dtated 25 February 2000, 7 April 2000, 16 February 2001) and Dr Peter McEwen, Orthopaedic Surgeon (report stated 17 October 2001, 21 November 2001, 28 February 2002). In aggregate, these medical reports do not elucidate the central issue for determination in this case. Consequently this medical evidence was of very little assistance or indeed relevance to the Tribunal.
Discussion of Mr Dillon's evidence
23. The Tribunal accepted Mr Dillon as a truthful witness. Cross-examination did not shake his evidence. There were no issues of credit in this case.
Issue
24. There is one key issue for determination. This is whether the Applicant has a whole person impairment of 20% under Table 9.5 (Limb Function – Lower Limb). The Respondent has already accepted a 10% whole person impairment under Table 9.5. More precisely, this central issue reduces into the fine-grained question whether the Applicant, having difficulty with grades and steps (the necessary and sufficient integers relevant to 10% whole person impairment, is further impaired by having difficulty with distances (which escalates into a 20% whole person impairment).
Applicant’s Submissions
25. Counsel for the Applicant made the following oral and written submissions:
A.The Applicant contended that he had difficulty with grades and steps and distances within the 20% level of Table 9.5.
B.The Applicant submitted that the evidence of Dr Purssey supported a 20% finding of whole person impairment because Dr Purssey said that he had no reason to doubt that further walking would have caused the Applicant obvious difficulty.
C.Citing Re Whelan and Department of Defence (1997) 47 ALD 383 at [68] and with reference to the evidence of Dr Purssey it was submitted on behalf of the applicant that a normal healthy person would be able to walk greater distances than that of the applicant. Dr Purssey had said that a normal healthy person in the position of the applicant should be able to walk at least 10km.
D.It was further agued that the Applicant’s difficulty with distances should be measured against what a normal healthy person could walk.
E.The case of Comcare v Moon [2003] FCA 569 at [42] – [49]; (2003) 75 ALD 160 was relied on by the Applicant to support the contention that pain can produce a difficulty with distances. The Applicant argued that the evidence before the Tribunal demonstrated that he did experience pain in walking distances. The following passages from Comcare v Moon were drawn carefully to the attention of the Tribunal:
[45] The contention of Comcare is that pain which does not prevent or restrict a physical activity at the time of the activity is irrelevant to an assessment of impairment under Table 9.5. That is, it must objectively be seen that the activity is ceased or restricted during its performance to amount to an impairment.
[46] I do not accept that contention. In the first place, I do not consider Jenkinson J in Amorebieta [Comcare v Amorebieta (1996) 66 FCR 83] intended to say that pain experienced during activity is not relevant to the assessment of level of impairment under s 24 of the Guide or under the measure of ‘difficulty’ in Table 9.5. He recognised there may be a relevant ‘voluntary restriction of movement evoked by the onset of pain’ which could evidence or amount to an impairment. That may be by way of comparison with pain which does not in fact impair movement or activity, but which may nevertheless entitle a claimant to compensation under s 27 of the SRC Act. The definitions of relevant terms in the Guide are consistent with those used in s 4 of the SRC Act. ‘Impairment’ is defined to mean ‘the loss, loss of the use, or the damage or malfunction, of any part of the body, or of any bodily system or function or part of such system or function’. The question it posits is whether, objectively, a claimant’s ‘personal efficiency’ in the activities of daily living is adversely affected. The expression ‘the activities of daily living’ is used by way of contrast with ‘lifestyle effects’.
[47] In this matter, the Tribunal accepted Mr Moon has some pathological change to his lower legs (to which his employment contributed, as found by the decision of 12 April 1999). It accepted the condition restricts him in his daily living, consistent with his evidence. The restriction occurs because he suffers pain during and after certain activities. He gave evidence to that effect, which the Tribunal accepted. Hence he avoids those activities when he can. Sometimes he cannot, and suffers the consequences. But his evidence, and the medical evidence, was consistent with the Tribunal’s finding that he ‘has difficulty’ with grades and steps. I do not think the fact that Mr Moon on occasions does climb stairs or ascend slopes means he does not have difficulty with grades and steps. Once the difficulty is found to exist, that the activity is avoided to avoid the experiencing of pain does not make the difficulty any less. In my view, it is a question of fact in each case as to whether pain experienced in activity presents a ‘difficulty’ with that activity, or whether it is simply a consideration going to ‘lifestyle effects’. The Tribunal in this matter decided the pain experienced by Mr Moon, in the light of the findings it made about the condition, amounted to a ‘difficulty’ with grades and steps. In my judgment, that finding was amply available to it. The term ‘difficulty’ in, e.g. Table 9.5, is not a term of art, but carries its ordinary meaning: Comcare v Fiedler [2001] FCA 1810 at [22]; Whittaker v Comcare (1998) 28 AAR 55 at 61.
[48] A commonplace example remote from the present circumstances will serve to illustrate the point. Let it be supposed a manual labourer has a lower back disc injury. Upon activity such as bending or lifting, the labourer suffers pain but is able to persevere for a while. Eventually, the activity must cease, and the pain becomes disabling for some days after the activity. The cause of the pain is extrusion from the disk impinging on a nerve root. In my view, it would not be intended by the SRC Act or the applicable Table of the Guide in that circumstance to exclude the labourer from any ‘impairment’ entitlement. It would be a nonsense to suggest otherwise. If the labourer thereafter avoided such activity as much as possible, trying to balance the desirability of undertaking the activity against the consequences of undertaking it, there is no less an impairment. Pain may be, and as I understand it generally is, a consequence of some pathological change, albeit sometimes of a microscopic nature. It may evidence the pathological change, even though the pathological change may not be objectively observable or readily so.
[49] Indeed, as senior counsel for Comcare acknowledged, if the contention is correct, there would be no ‘difficulty’ in Mr Moon’s case even if he were to undertake strenuous activity which caused him at the time a great deal of pain and which produced an extended period of incapacity following the activity (and, it might be added in the light of Dr Lugg’s evidence, exposed him to significant further serious physical consequences). To state the proposition in its extreme form is to indicate that it is unlikely s 24 and the Guide were intended to be interpreted in that way. As I have said, the issue is really one of fact for the circumstances of each case.
F.The Applicant cited certain evidence given by Dr Vecchio in a previous case (Hemley and Military Rehabilitation and Compensation Commission [2006] AATA 128 at [18] and [19]) in connection with the difficulty with distances integer of the 20% level in Table 9.5. The Tribunal did not find this submission helpful because it relates to findings of fact in a previous case, which of course are not binding on it or even persuasive.
G.The Applicant argued that the evidence of both Dr Vecchio and Dr Purssey supported a 20% finding within Table 9.5.
H.The Applicant asked the Tribunal to set aside their decision under review and to substitute a decision that the Applicant had a whole person impairment of 20% within Table 9.5.
Respondent’s Submissions
26.The Respondent made the following contentions in Counsel’s closing address:
A. The Tribunal should discount any reliance by the Applicant on previous findings of fact relating to Dr Vecchio in Hemley at [18] and [19].
B. The Tribunal should follow what Member Kenny said in Watkins and Comcare [2002] AATA 613 at [92] about the relationship between pain and difficulty and the meaning of "difficulty".
C. The Tribunal should take into account the absence of any report of pain by the Applicant to Dr Vecchio and Dr Purssey. The Tribunal was urged to discount the Applicant’s evidence with respect to pain he endured whilst walking distances. The Respondent argued that the Applicant’s account of his capacity to walk distances was weakened by an absence of clinical observations and clinical findings of difficulties with distances made particularly by Dr Vecchio.
D. The Respondent argued that the reports of pain reported by the Applicant in his written and oral evidence was at odds with, and not corroborated by, the comparative lack of pain reported by the Applicant in statements recorded in his Army medical file. Consequently, the Tribunal was urged to discount the Applicant's self-report of pain.
E. The Respondent said that the Tribunal should accept the following elements from the evidence of Dr Vecchio, namely (1) the Applicant did not objectively manifest pain; (2) difficulties with grades and steps were expected with chondromalacia patellae; (3) arthroscopic investigations did not support or justify any clinical findings to indicate the level of payment to bring the impairment of the Applicant within a 20% level.
F. That the reviewable decision dated 2 September 2005 should be affirmed.
Findings of Fact
27. Based on the material before it, the Tribunal makes the following findings of fact:
A. Mr Dillon (the Applicant) has bilateral chondromalacia patella and partial electoral meniscectomy and previous avulsion fracture of attachment medial collateral ligament to medial femoral condyle in the left knee.
B. This injury was caused by a separate incidents arising in the course of the military employment of the Applicant by the Australian Regular Army.
C. The Applicant can rise to a standing position and walk.
D. The Applicant has difficulty with grades and steps.
E. The Applicant is able to walk medium distances with some trouble and this activity causes him some pain.
The Legislation
28. The relevant provisions of the Safety, Rehabilitation and Compensation Act 1988 are as follows:
Section 4 Interpretation
(1) In this Act, unless the contrary intention appears:
…
"impairment" means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
"injury" means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
…
…
‘permanent’ means likely to continue indefinitely.
…
(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
…
Section 14 Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
…
Section 19 Compensation for injuries resulting in incapacity
(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
29. Section 24 of the Act is activated when an injury to an employee results in permanent impairment. Section 24 provides as follows:
Section 24 Compensation for injuries resulting in permanent impairment
(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee's condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) ….
(7) Subject to section 25, if:
(a) the employee has a permanent impairment other than a hearing loss; and
(b) Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
30. In Comcare v Roser[2003] FCA 243, Spender J said:
[24] Section 24(1) of the Act is the source of the statutory entitlement to compensation for permanent impairment. As Burchett J noted in Brennan v Comcare (1994) 50 FCR 555, (“Brennan”) “compensation… is paid ‘in respect of the injury’, not in respect of the impairment”, at 556. For a liability to arise there must, in my view, be an injury and it must result in a permanent impairment. A clear cause and effect relationship between the injury and permanent impairment is posited and required.
Tribunal’s Reasons
31. This matter involves the issue whether the Applicant has a whole person impairment of 20% under Table 9.5 of the Guide to the Assessment of the Degree of Permanent Impairment. The Respondent has accepted liability for a 10% whole person impairment. This previous determination was not in issue in this case.
32. It is not in dispute between the parties, and the Tribunal both accepts and finds on the uncontested evidence before it, that the Applicant has a permanent impairment (that is, an impairment that is likely to continue indefinitely) within the meaning and operation of section 24(2) of the Act. This permanent impairment consists of bilateral chondromalacia patellae and partial electoral meniscectomy and previous avulsion fracture of attachment medial collateral ligament to medial femoral condyle in the left knee.
33. The Tribunal noted that the Applicant sustained injury to both knees on two different occasions. Following Comcare v Van Grinsven[2002] FCA 371 (which in turn was followed in Comcare v Roser [2003] FCA 243 at [35]), the fact that in this case the Applicant suffers from two distinct injuries occasioned to each knee leads to a process of reasoning that this Tribunal must combine the impairments experienced by the Applicant and treat them on a composite or combined basis for the purpose of Table 9.5.
34. In terms of the forensic machinations of this case, there were two principal enquiries. First, does the evidence disclose support a finding or assessment that the Applicant has a "difficulty" in the relevant sense? Secondly, does the difficulty relate to not only grades and steps but also to distances?
35. The meaning of "difficulty" in Table 9.5 has itself caused difficulty and this proved to be the case in the hearing of this appeal. Concerning this matter, Member Kenny in Watkins and Comcare [2002] AATA 613 conducted the following comprehensive review which justifies repetition:
[89] To meet the threshold of 10% under Table 9.5 of the Guide, the Applicant must be able to rise to a standing position and walk but have difficulty with grades and steps. For the threshold of 20% under that Table, he must be able to rise to a standing position and walk but have difficulty with grades and steps and distances. Clearly, he can rise to stand and can walk; but, does he have "difficulty" with grades and steps or with distances? The term "difficulty" was considered by the Full Court of the Federal Court in Comcare v Fiedler [2001] FCA 1810. There, the Court considered the phrase "difficulty with digital dexterity" as it is used in Table 9.4 of the Guide. The Court rejected the view expressed in earlier Tribunal cases that such difficulty would only arise where that difficulty is "very severe" (see Re Peters and Australian Postal Commission (AAT 9680, 23 August 1994)) or "very significant or substantial" (see Re Holmes and Comcare [2001] AATA 290). The Court said:
‘22 … The word 'difficulty', like most ordinary English words, has no fixed meaning but is….. a word capable of covering a broad spectrum of restriction and disability in the context of a phrase such as 'difficulty with digital dexterity' in Table 9.4. According to the Macquarie Dictionary, 3rd ed, 'difficulty' connotes a range of conditions from being 'not easy', to being 'hard to do', to 'requiring much effort'. According to the Oxford English Dictionary, 2nd ed, it connotes notions of not being easy, of requiring effort or labour, of being troublesome or hard to do, perform or carry out. An injury that leaves a person in the position of requiring much effort to perform tasks calling for digital dexterity involves a markedly more serious impairment than does an injury which makes it not easy or troublesome for a person to perform such tasks.
23. Something more than minimal problems with digital dexterity is required. But if a person, as a result of his injury, finds it troublesome or not easy to do tasks requiring digital dexterity, that will, adopting the approach to interpretation required by Whittaker v Comcare (1998) 86 FCR 532 at 544 - 545, justify a 10% impairment assessment under paragraph 1 of Table 9.4.
The Tribunal, having correctly rejected the interpretation placed on the phrase in Table 9.4 in Holmes and Peters, appears to have applied an interpretation to this effect to the facts of the case as found by it then it concluded that the Respondent 'clearly has difficulty with digital dexterity in both hands and, indeed, substantial difficulty with digital dexterity with his right hand'. There is no reason to think the Tribunal considered that any difficulty with digital dexterity, no matter how slight, was sufficient to come within par 1 of Table 9.4’."
[Emphasis added]
36. The apogee of Member Kenny's reasoning concerning difficulty is expressed in para [90] where the learned Member said:
…[An] applicant will have difficulty if he finds it troublesome or not easy to negotiate grades, steps and/or distances. The limitation need not be significant or substantial but it must be more than slight or minimal.
37. This Tribunal agrees with that exegesis for the most part except that portion which deals with "grades, steps and/or distances" (emphasis added). Jones and Department of Defence at [38] reinforces the proposition that a 20% whole person impairment assessment under Table 9.5 requires difficulty with grades and steps and distances (emphasis in original). The Tribunal in that decision noted Re Nguyen and Comcare Australia (AAT 10133, 18 April 1995) where the Tribunal noted that the elements or integers identified in Table 9.5 in each impairment percentage description, for example, “grades, steps and distances”, must be read conjunctively.
38. Whittaker v Comcare (1998) 86 FCR 532; (1998) 28 AAR 55 (a decision of the Full Court of the Federal Court) reinforces the understanding of difficulty under Table 9.5 that it means if a person found it troublesome or not easy to do tasks, a difficulty exists.
39. Saxton and Military Rehabilitation and Compensation Commission [2005] AATA 1059 adopted the reasoning of the Full Court of the Federal Court in Comcare v Fiedler (2001) 115 FCR 328 in reviewing another decision under Table 9.5 on difficulty. The Tribunal said:
[27] A similar approach to that in Fiedler (supra) was followed in the Tribunal case of Carman and Comcare [2002] AATA 946 in relation to a case for assessment under Table 9.5. Member Kenny noted the Applicant would have difficulty if he found it troublesome or not easy to negotiate grades, steps and/or distances. As well, the limitation need not be significant or substantial but it must be more than slight or minimal. The Tribunal accepted the submission that pain may be taken into account as the source of difficulty in performing an activity and referred to other Tribunal cases where this had been considered. We agree that, while pain may be taken into account as a source of difficulty in performing an activity, that is not to say that the mere presence of pain, without more, means that difficulty is experienced.
40. Some forensic debate in this case was concerned with the relationship between pain and difficulty. In Watkins and Comcare [2002] AATA 613, the Tribunal said:
[92] While pain and weakness may each be taken into account as a source of difficulty in performing an activity, that is not to say that the mere presence of pain or of weakness, without more, means that there is difficulty experienced. The Tribunal notes the reference in the relevant Principles of Assessment to objective criteria ... and is satisfied that, before there can be a finding that there is difficulty in performing a task because of pain, weakness or some other factor, there must be some objective manifestation of that pain or weakness which reveals the difficulty. To find otherwise would be to equate pain or weakness with difficulty and to allocate impairment ratings for those matters which more properly fall for consideration as lifestyle effects for assessment under non-economic loss.
41. In Millen and Military Rehabilitation and Compensation Commission [2005] AATA 555, Member Kenny adhered to what he said in Watkins at [90] – [92] about the relationship between pain and difficulty, and in particular in support of the proposition that the experiencing of pain can constitute a difficulty for the purposes of Table 9.5.
42. The Tribunal considered that it was important not to treat "difficulty" within Table 9.5 as some kind of element standing alone. Instead, difficulty is connected with a descriptor of a level of impairment, which for the 20% level of impairment is "Can rise to a standing position and walk BUT has difficulty with grades, steps and distances." In other words, the referent for difficulty is the capacity to travel or engage with walking on surfaces involving grades, steps and distances. In this case, the issue concerned whether or not the Applicant was able to traverse "distances". In Hemley and Military Rehabilitation and Compensation Commission [2006] AATA 128 three members of this Tribunal said:
[20] The extent of distances to be considered when applying Table 9.5 of the Guide are those that are expected to be transversed by a normal healthy person of the same age as the applicant. That was the approach in Re Whelan and Department of Defence (1996) 47 ALD 383 at 399 and Re Morley and Comcare (1996) 40 ALD 725 at 731.
43. In Lidgett and Comcare (Department of Veterans' Affairs) [2003] AATA 910, Member Webb said:
[44] In Comcare v Fielder [sic] [2001] FCA 1810, Drummond, Kiefel and Dowsett JJ discussed the meaning of the word ‘difficulty’ in relation to the phrase ‘difficulty with digital dexterity’, that is used at Table 9.4 of the approved Guide. Their Honours observed at [22]:
The word ‘difficulty’, like most ordinary English words, has no fixed meaning but is, as the Tribunal observes, a word capable of covering a broad spectrum of restriction and disability in the context of a phrase such as "difficulty with digital dexterity" in Table 9.4. According to the Macquarie Dictionary, 3rd ed, ‘difficulty’ connotes a range of conditions from being ‘not easy’, to being ‘hard to do’, to ‘requiring much effort’. According to the Oxford English Dictionary, 2nd ed, it connotes notions of not being easy, of requiring effort or labour, of being troublesome or hard to do, perform or carry out. An injury that leaves a person in the position of requiring much effort to perform tasks calling for digital dexterity involves a markedly more serious impairment than does an injury which makes it not easy or troublesome for a person to perform such tasks.
Something more than minimal problems with digital dexterity is required. But if a person, as a result of his injury, finds it troublesome or not easy to do tasks requiring digital dexterity, that will, adopting the approach to interpretation required by [Whittaker v Comcare (1998) 86 FCR 532] at 544-545, justify a 10% impairment assessment under paragragh 1 of Table 9.4.
[45] Following the construction outlined in Fielder [sic] (supra) and adopting the most favourable interpretation to the Applicant, consistent with Whittaker v Comcare (1998) 86 FCR 532, the Applicant in this case will have ‘difficulty’ if he finds it troublesome or not easy to negotiate grades and steps, or grades and steps and distances. It is not necessary for the limitation to be significant or substantial but it must be more than slight or minimal (see Re Nuss and Comcare [2002] AATA 170 at [60]; Re Watkins and Comcare [2002] AATA 613 at [90]; Re Carman and Comcare [2002] AATA 946 at [48]).
[46] The Tribunal pauses to note that the phrases set out at paragraphs 1 and 2, of Table 9.5, both involve conjunctive elements that must be read together. The difficulty must pertain to each of the activities that are specified and no less.
44. The oral and written evidence of the Applicant was that he experiences pain when walking distances. In walking a distance of 600 - 700 m on the day of the hearing, the Applicant described how he needed to take breaks to achieve that distance and also that he experienced pain during it. Dr Purssey’s evidence (which the Tribunal accepted) is that the Applicant has difficulty with grades, steps and distances.
45. Medical evidence before this Tribunal in and of itself is not determinative of the ultimate issue for resolution, particularly when (as happens frequently) the medical evidence is fragmented along fault lines corresponding to the adversarial positions of the parties (compare Rogers v Whittaker (1992) 175 CLR 479 where the High Court of Australia ruled that that as a general principle courts and, by extension, tribunals must make their own decisions about issues of medical liability and not subordinate to these decisions to the body of expert medical opinion).
46. In this case, the medical evidence was polarised, particularly in terms of the medical opinions expressed in terms of satisfaction of the Table 9.5 20% whole person permanent impairment standard. This makes it especially important for the Tribunal to consider the totality of the evidence, not to simply consider the medical evidence alone or in isolation.
47. The Tribunal recalls what the Federal Court said in Comcare v Moon [2003] FCA 569 at [47]; (2003) 75 ALD 160 at 171 about the effect of pain and its relationship with the statutory integer of "difficulty".
In my view, it is a question of fact in each case as to whether pain experienced in activity presents a ‘difficulty’ with that activity, or whether it is simply a consideration going to ‘lifestyle effects’. ... The term ‘difficulty’ in, e.g. Table 9.5, is not a term of art, but carries its ordinary meaning: Comcare v Fiedler [2001] FCA 1810 at [22]; Whittaker v Comcare (1998) 28 AAR 55 at 61.
48. Dr Purssey said that his medical examination of the Applicant led him to conclude that he had difficulties with walking distances, based on his observations and his summary and understanding of the medical records of the Applicant he examined in the course of his medico-legal examination. Dr Purssey report said:
He then walked around a 100 m distance with two slow to 10 m each. Although these are easy slopes I consider he showed difficulty with down slopes. He was able to complete the hundred metre circuit. I could see no reason to doubt that further walking would have caused obvious difficulty. This was confirmed by his medical records.
49. The Respondent challenged this evidence on the basis that the contention that a walk of more than 100 m by the Applicant would have caused difficulty was a matter of supposition or, effectively, guesswork. Alongside the medical evidence, however, the Tribunal balanced and considered (as it thought it should) the oral and written evidence of the Applicant. This evidence was clearly to the effect that the Applicant found it hard to walk distances, and that doing so required rest breaks. The Applicant was guarded in how he performed daily tasks such as going shopping because of the pain in his left knee, such that he changed his shopping routine to accommodate his painful left knee. Driving any distance required him to stop for rest breaks because of his painful knees which required extension not just flexion (although the Tribunal notes that driving is outside the activities mentioned in Table 9.5, which are confined to rising to a standing position and walking). In the opinion of the Tribunal these limitations were more than slight or nominal and tended towards the substantial or restrictive end of the impairment spectrum.
50. The Tribunal considered carefully all of the medical evidence before it and also the evidence of the Applicant. The Tribunal is of the opinion that the total state of the evidence before it enables the Tribunal to reach the conclusion that the Applicant has difficulty with stairs and with grades and with distances.
Tribunal’s Conclusion
51. Based upon the material before it, and for these Reasons, the Tribunal concludes that the correct decision is that the decision of the Respondent should be set aside.
Decision
52. The Tribunal sets aside the decision under review and substitutes a decision that the Applicant has a whole person impairment of 20 percent under Table 9.5 of the Guide to the Assessment of the Degree of Permanent Impairment.
Costs
53. Neither party addressed the Tribunal concerning costs, and nor were any supplementary submissions concerning costs made to the Tribunal through the Registry after the hearing. Costs are governed by section 67 of the Safety, Rehabilitation and Compensation Act 1988. This provision reads (so far as relevant):
67 Costs of proceedings before Administrative Appeals Tribunal
(1A) In this section, responsible authority, in relation to a determination, means:
(a) if the determination affected the Commonwealth or a Commonwealth authority other than a licensed authority—Comcare; and
(b) if the determination affected a Commonwealth authority, or a corporation, that holds a licence under Part VIII authorising acceptance of liability for claims in respect of which the determination is made—that authority or corporation; and
(c) if the determination affected a Commonwealth authority that holds a licence under Part VIII but the licence does not authorise acceptance of liability for claims in respect of which the determination is made—Comcare.
(1) Subject to this section, the costs incurred by a party to proceedings instituted under this Part in respect of that reviewable decision shall be borne by that party.
…
(8) Where, in any proceedings instituted by the claimant, the Administrative Appeals Tribunal makes a decision:
(a) varying a reviewable decision in a manner favourable to the claimant; or
(b) setting aside a reviewable decision and making a decision in substitution for the reviewable decision that is more favourable to the claimant than the reviewable decision;
the Tribunal may, subject to this section, order that the costs of those proceedings incurred by the claimant, or a part of those costs, shall be paid by the responsible authority.
(9) Where the Administrative Appeals Tribunal gives a decision setting aside a reviewable decision and remitting the case for re‑determination by the determining authority, the Tribunal shall, subject to this section, order that the costs of the proceedings before it incurred by the claimant shall be paid by the responsible authority.
(13) Where the Administrative Appeals Tribunal orders a responsible authority to pay costs incurred by a claimant, the Tribunal may, in the absence of agreement between the parties as to the amount of the costs, tax or settle the amount of the costs or order that the costs be taxed by the Registrar, a District Registrar or a Deputy Registrar of the Tribunal.
(14) For the purposes of section 69A of the Administrative Appeals Tribunal Act 1975, the responsible authority is taken to be a party to the proceeding before the Administrative Appeals Tribunal.
54. In this case, the Tribunal is confronted with sections 67(8) and 67(9). The former provision gives the Tribunal a discretion concerning the incidence of costs, whereas the latter provision is directive or mandatory concerning costs (compare Riley v Commission for the Safety, Rehabilitation and Compensation of Commonwealth Government Employees (1994) 121 ALR 477 and see the discussion in D Pearce, Administrative Appeals Tribunal (Lexis Nexis Butterworth, Australia, 2003), para [9.40]).
55. The Tribunal had regard to what the Federal Court said in Comcare v Moon [2003] FCA 569 at [52] - [67]; (2003) 75 ALD 160 at 172 – 175 concerning costs under section 67 of the Safety, Rehabilitation and Compensation Act 1988.
56. The circumstances of this case are materially different from Comcare v Moon. In this case, the Tribunal reserved its decision, whereas in Comcare v Moon the decision was given extemporaneously. The parties must be taken to be content to have the decision on costs published through the Registry of the Tribunal, given that neither party addressed on costs in their closing addresses. This Tribunal is only functus officio on the occurrence of the first of the following two events: (1) pronouncement of the orders of the Tribunal at the conclusion of the hearing where oral reasons for decision are given (see also section 43(5A) of the Administrative Appeals Tribunal Act 1975); or (2) publication of its reasons for decision (which is when the decision is given).
57. In this case, having regard to the way it was argued and to the fact that both parties were legally represented, the Tribunal is satisfied that the parties were content for the Tribunal to publish its decision on costs under section 67 of the Safety, Rehabilitation and Compensation Act 1988 through the Registry.
58. The Applicant has achieved success by instituting these proceedings and the Tribunal is inclined to follow the general rule in adversarial proceedings that costs follow the event. The Tribunal decides under section 67(8) to exercise its discretion that the costs of these proceedings incurred by the Applicant are to be paid by the Respondent. Alternatively, if section 67(9) is applicable the Tribunal orders that the costs of these proceedings are to be paid by the Respondent.
Disposition
59. For these reasons, the Tribunal makes the following decisions:
(1) The decision under review is set aside and in substitution the Tribunal decides that the Applicant has a whole person impairment of 20 percent under Table 9.5 of the Guide to the Assessment of the Degree of Permanent Impairment.
(2) The matter is remitted to the Respondent to determine the correct amount of compensation that is payable to the Applicant pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988.
(3) The Respondent is to pay the Applicant's costs as agreed or taxed.
I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision of Member S C Fisher
Signed: Leisa Pendle
Legal Research OfficerDates of Hearing 24 April 2006
Date of Decision 2 February 2007
Counsel for the Applicant Mr R King-Scott
Solicitor for the Applicant D’Arcys Solicitors
Counsel for the Respondent Mr C J Clarke
Solicitor for the Respondent Australia Government Solicitor
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