Grieve and Military Rehabilitation and Compensation Commission
[2008] AATA 792
•5 September 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 792
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1027, 1673, 1674
VETERANS' APPEALS DIVISION ) Re JAMES GRIEVE Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Deputy President P E Hack SC; Dr G J Maynard, Brigadier (Rtd), Member Date5 September 2008
PlaceBrisbane
Decision The Tribunal:
(a) affirms the decision under review in Application 2007/1027;
(b) in Application 2007/1673,
(i) sets aside the decision under review;
(ii) substitutes a decision that Mr Grieve has a 10% degree of permanent impairment resulting from his sciatica condition;
(iii) remits the matter to the respondent for the purposes of determining the amount of compensation payable;
(iv) orders the respondent to pay the applicant’s costs of, and incidental to, Application 2007/1673 to be taxed if not agreed;
(c) affirms the decision under review in Application 2007/1674.
............Signed..................
Deputy President
CATCHWORDS
COMPENSATION – injuries received as a result of military service – bilateral chondromalacia patella – sciatica condition - cervical spine and right arm condition – question of level of permanent impairment – whether applicant has difficulty with distances as well as grades and steps – bilateral knee condition causes difficulty with grades and steps only but sciatica condition causes difficulty with grades, steps and distances – question of causation – no temporal connection between accident and cervical spine and right arm condition – two of the decisions under review affirmed – other decision under review set aside
WORDS & PHRASES – “difficulty” – “distances”
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 14, 24, 28
Comcare v Fiedler (2001) 115 FCR 328
Fellowes v Military Rehabilitation & Compensation Commission [2008] FCAFC 140
Re Carman and Comcare [2002] AATA 946
Re Nuss and Comcare [2002] AATA 170
Re Watkins and Comcare (2002) 69 ALD 498
Whittaker v Comcare (1998) 86 FCR 532
REASONS FOR DECISION
5 September 2008 Deputy President P E Hack SC;
Dr G J Maynard, Brigadier (Rtd), MemberIntroduction
1.The applicant, Mr James Grieve, served in the Australian Regular Army between February 2000 and October 2005 when he was given a medical discharge. He seeks a review of three determinations made by the respondent, the Military Rehabilitation and Compensation Commission, on claims made by him for compensation.
2.In Application 2007/1027 Mr Grieve seeks a review of a decision made by the Commission on 7 February 2007 which affirmed on reconsideration an earlier decision made on 29 September 2006 that he was entitled to compensation for permanent impairment assessed as 10% whole person impairment for bilateral chondromalacia patella.
3.Next, in Application 2007/1673, Mr Grieve seeks a review of a decision made on 16 April 2007, affirming an earlier decision of 26 February 2007, that he was not eligible to receive lump sum compensation for his sciatica condition on the basis that the whole person impairment was not 10%.
4.Finally, in Application 2007/1674 Mr Grieve seeks a review of a decision, made on 17 April 2007, which affirmed a determination of 30 January 2007 that the Commission was not liable to pay compensation for his cervical spine and right arm conditions.
The parties’ contentions
5. In these proceedings Mr Grieve contends:
(a)that the decision in 2007/1027 ought be set aside and a decision substituted that he has a permanent impairment of 20% for each knee by reference to Table 9.5 of Part 2 of the Guide to the Assessment of the Degree of Permanent Impairment, Second edition (the Guide);
(b)that the decision in 2007/1673 ought be set aside and a decision substituted that his sciatica condition be assessed as amounting to a 20% whole person impairment by reference to Table 9.5 of the Guide; and
(c)that the decision in 2007/1674 be set aside and that a decision be substituted that the Commission is liable, pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act), for the cervical spine and right arm condition. In addition Mr Grieve contends that this Tribunal ought assess the degree of permanent impairment[1] of his neck as 5% by reference to Table 9.6 of the Guide and that of the right arm as 20% by reference to Table 9.4 of the Guide.
[1]Mr Dube, who appeared for the Commission, accepted that the Tribunal had jurisdiction to consider the issue of degree of permanent impairment even though that had not been expressly considered at the earlier stages of decision-making.
6.For its part the Commission contends that its decisions ought be affirmed.
Statutory framework
7.It is unnecessary, in the circumstances, to undertake more than a brief examination of the legislative scheme. The SRC Act establishes a scheme for the payment of compensation to Commonwealth employees, including members of the Defence Force. The general entitlement to compensation is provided for by s 14 of the SRC Act. A combination of that section and s 147 of the SRC Act[2] makes the Commission liable to pay compensation, in accordance with the SRC Act, in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. Divisions 2, 3, and 4 within Part II make provision for the amount of compensation liable to be paid for different types of injuries, including, relevantly, “Injuries resulting in impairment” provided for in Division 4.
[2] Which deems references in Part II to Comcare as being references to the Commission.
8.It is important to note that injuries suffered or diseases contracted as a result of service after 1 July 2004 are not dealt with under the SRC Act but under the Military Rehabilitation and Compensation Act 2004 (Cth) (the MRC Act).
9.So far as is presently relevant, s 24 of the SRC Act, contained within Division 4, is in these terms:
“(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)…
(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)The degree of permanent impairment shall be expressed as a percentage.
(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.
(7A)…
(8)…
(9)For the purposes of this section, the maximum amount is $80,000.”
10.The amount of compensation payable is determined by reference to the degree of permanent impairment as calculated by the Commission (or this Tribunal in its stead) as a percentage, and that calculation is to be undertaken by reference to the Guide. Content is given to the expression “the degree of permanent impairment of the employee” by reference to the Guide. The Guide is subordinate legislation. Section 28(1) of the SRC Act deals with the content of the Guide in terms of establishing criteria for permanent impairment and non-economic loss of an employee, and the methods of expressing this impairment and loss as a percentage. It is agreed that Part 2 of the Guide is applicable to the claims made by Mr Grieve as a member of the Defence Force in relation to injuries that occurred during defence service before 1 July 2004.
Procedural history
11.On 9 June 2006 solicitors acting for Mr Grieve lodged with the Commission three claims, each supported by correspondence dated 7 June 2006. The claims were for injuries described as “bilateral knees condition”, “back/sciatica” and “neck/right arm”.
12.On 23 June 2006 the Commission determined that Mr Grieve had suffered a disease, namely bilateral chondromalacia patellae, to which his military service had contributed in a material degree. The date of injury was determined to be 3 August 2001, that being the date on which Mr Grieve first sought medical treatment for the condition. Whilst the letter accepting the claim makes no express reference to s 14 of the SRC Act, this letter must be regarded as an acceptance of liability on the part of the Commission to pay compensation to Mr Grieve in accordance with the SRC Act in respect of the injury[3] described as bilateral chondromalacia patellae. Thereafter, on 29 September 2006, the Commission made the determination in issue here, that Mr Grieve’s degree of permanent impairment as a result of his bilateral chondromalacia patellae injuries was 10% under Table 9.5 of the Guide. That determination was affirmed on 7 February 2007.
[3] A disease comes within the statutory definition of injury in the SRC Act.
13.The claim for “back/sciatica” was also accepted with the Commission determining, on 30 January 2007, that Mr Grieve had:
“suffered an aggravation of a disease to which your military service contributed in a material degree, namely degeneration of the lumbar spine at L4/5 resulting in mechanical lower back pain and sciatica.”
The date of injury was determined to be 28 April 2003. On 26 February 2007 the Commission determined, by reference to Table 9.6 (Spine) of the Guide, that Mr Grieve had a 10% impairment as a result of his compensable condition. Mr Grieve does not take issue with that assessment. On the same date it determined, relying particularly upon a report by Dr John Morris, a consultant orthopaedic surgeon, that no payment could be made to Mr Grieve under ss 24 and 27 of the SRC Act in respect of the condition of sciatica because the degree of impairment suffered by Mr Grieve, assessed by reference to Table 9.5 of the Guide, was less than 10%.
14.The Commission did not accept liability to pay compensation for the “neck/right arm” condition. On 30 January 2007 it determined that there was no nexus between the claimed condition and Mr Grieve’s military employment and thus liability under s 14 of the SRC Act was found not to be established.
Chondromalacia patellae injury
15.Two issues fall to be determined: the extent of permanent impairment and the question of whether there can be an assessment of impairment for each knee. There is no doubt that the accepted condition is permanent as that term is defined in the SRC Act. The parties are agreed that the relevant Table is Table 9.5 and that Table 9.2, which deals with the “Lower extremity”, is not relevant.
16.Table 9.5 of the Guide deals with “Limb function – lower limb”. It contains the following descriptions of levels of impairment:
“10% Can rise to standing position and walk BUT has difficulty with grades and steps
20% Can rise to standing position and walk but has difficulty with grades, steps and distances”.
17.At the outset we need identify what is meant by “difficulty”. Both parties took us to the decision of the Full Court of the Federal Court in Comcare v Fiedler[4]. There the Court was concerned with the expression “difficulty with digital dexterity” in Table 9.4 of the Guide. The Court noted that the language of Table 9.4 was “ambiguous” and that “’difficulty’ connotes a range of conditions”. Their Honours said[5]:
“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 [[6]] at 544-545, justify a 10 per cent impairment assessment under par 1 of Table 9.4.”
[4](2001) 115 FCR 328.
[5](2001) 115 FCR at 334, [22].
[6]Whittaker v Comcare (1998) 86 FCR 532.
18.The Guide provides no explicit guidance about what “distances” are referred to. However the cases concerning the earlier edition of the Guide, to which our attention was drawn[7], suggest the distances to be considered for Table 9.5 of that edition of the Guide are those that are expected to be traversed by a normal healthy person and of similar age to the applicant. There seems to be no reason to adopt any different test under this edition of the Guide.
[7]Re Watkins and Comcare (2002) 69 ALD 498; Re Nuss and Comcare [2002] AATA 170 and Re Carman and Comcare [2002] AATA 946.
19.Dr Brian Purssey, a specialist in orthopaedics and general surgery, whose report dated 26 April 2006 was relied upon by Mr Grieve, expressed the opinion that Mr Grieve answered the 20% descriptor, i.e. he could rise to the standing position and walk but had difficulty with grades, steps and distances. That assessment was due, according to Dr Purssey, “to both his back and his knees”. Dr Purssey reported that Mr Grieve had informed him that he could walk up to 5 kilometres if he had to even though this would aggravate his back pain. Mr Grieve acknowledged having told Dr Purssey this but told us that he has not done so since his discharge in October 2005.
20.Dr Morris did not expressly consider the degree of impairment arising from this condition but did undertake an assessment using Table 9.5. He assessed a 0% impairment on this basis:
“I watched him go up and down the steps 20 times without any difficulties. He is able to walk up to 2km on the flat. He would experience pain walking up slopes but would not have difficulty.”
21.Dr Phillip Vecchio, a rheumatologist, was engaged by the Commission to consider this issue. He remarked:
“On circuitry, there was definite objective abnormality with grade descent and stair descent, with the latter applying the use of the handrail. On the flat, and Mr Grieve was carefully observed for up to 200 metres, I was unable to detect any objective abnormality, despite his certain complaints of discomfort, in the infrapatellar region.”
Dr Vecchio considered that the degree of impairment was 10%. He commented that Dr Purssey’s conclusion of 20% impairment was:
“not founded upon objective observation, and is an inference made upon the certain discomfort which Mr Grieve perceives, and no doubt experiences, as a consequence of the bilateral patellofemoral condition.”
22.Dr Dennis Nave observed Mr Grieve walk a distance in excess of 300 metres in the streets around his rooms without any apparent difficulty, i.e. Mr Grieve did not appear to limp or walk with other apparent difficulty.
23.Mr Grieve says that he suffers:
“pain when walking up and down slopes. This increasing the pain around both sides of my knee and under the patella, I avoid walking up and down slopes if at all possible, when I must walking up and down slopes I stop and rest until some of the pain eases then I continue. When walking up and down stairs the pain increasing in my right knee, changing direction when walking up and down stairs also aggravates my knee.”
He said that he could walk only 200 metres before the pain became excruciating and he had to stop. The pain, he said, was around his belt line and radiated down the backs of both legs. As well, he described pain in each patella when walking up and down slopes. The pain was sufficient to require him to stop and rest.
24.We accept that Mr Grieve’s knees occasion “difficulty with grades and steps” such that his knees answer the 10% descriptor. But, on the basis of the descriptions that he gives of the pain occasioned to him in walking moderate distances it seems to us that it is not his knees that create difficulties with distances. Any difficulties with distances that may exist are caused by his sciatic pain. That is, if there is permanent impairment evidenced by difficulties with distances it does not result from the accepted injury to the knees. That is consistent with his report to Dr Purssey that walking 5 kilometres would aggravate his back pain. In our view the proper assessment of the level of impairment that results from the accepted injuries to the knees is one of 10%.
25.It is next necessary to decide whether this assessment is of the knees collectively, as the Commission contends, or whether, as Mr Grieve contends, it is an assessment to be made of each knee. The parties agreed that the question would be authoritatively answered by the decision of the Full Court of the Federal Court in Fellowes v Military Rehabilitation & Compensation Commission[8]. The applicant in Fellowes suffered consecutive injuries to her knees, unlike Mr Grieve whose knee conditions appear to have developed simultaneously. But if regard is had to the level of impairment “resulting from”[9] each injury it is impossible to conclude other than that there is a single impairment resulting from the two injuries.
[8][2008] FCAFC 140.
[9] The language of s 24(5) of the SRC Act.
26.Thus, in our view, the Commission’s decision of 7 February 2007 was correct and we would affirm the decision under review in Application 2007/1027.
Lumbar spine degeneration/sciatica
27.The issue here is again one of assessment of the extent of permanent impairment that results from the injury constituted by Mr Grieve’s sciatica. That impairment, he contends, is to be assessed by reference to Table 9.5 because, on Mr Grieve’s case, his sciatica causes him difficulties with grades, steps and distances.
28.We have already referred to the evidence that touches upon this issue. The case is one where two injuries, the bilateral chondromalacia patella and the sciatica condition, each have the capacity to affect the proper functioning of Mr Grieve’s lower limbs. On the view we have taken of the evidence the bilateral chondromalacia patella condition causes difficulty with grades and steps but not with distances, treating “distances” as the types of distances that would ordinarily be expected to be traversed by a normal healthy male of Mr Grieve’s age. We would have thought that distances of at least 500 metres ought be able to be covered by such a person.
29.The evidence here satisfies us that Mr Grieve cannot walk 500 metres without difficulty. Dr Purssey spoke of Mr Grieve walking up to 5 kilometres but with the consequence of aggravating back pain. That pain, as described by Mr Grieve, was undoubtedly sciatic pain, i.e. pain around the belt line and radiating down the backs of both legs. Despite the apparent view of Dr Morris to the contrary we consider that experiencing pain, at least at the level beyond minimal discomfort, can amount to experiencing difficulty with an activity. It is obvious from the evidence of Mr Grieve, which we accept, that walking distances causes him pain, which he finds troublesome, and on this basis we conclude that he has difficulty with distances as a consequence of his sciatica.
30.The question that then arises is how this impairment is to be assessed having regard to the caution in the Guide[10]:
“Where two or more injuries give rise to the same whole person impairment only a single rating should be given.”
[10] Page 13 at .6.
Here, we are satisfied that each of Mr Grieve’s bilateral chondromalacia patella condition and his sciatica causes him difficulty with grades and steps but that, additionally, the sciatica causes him difficulty with distances.
31.In these circumstances it appears to us that the appropriate way of dealing with the matter, given that Mr Grieve has already been compensated for a whole person impairment of his lower limb function to the extent of 10%, is to treat the additional effect of the sciatica condition as amounting to a subsequent increase, by 10%, in the level of permanent impairment to Mr Grieve’s lower limb[11]. To treat the level of impairment as being 20% would be to over-compensate Mr Grieve for two injuries having, at one level, the same impairment. Compensating Mr Grieve to the extent to which we are satisfied that his sciatica condition worsens his already compensated lower limb condition recognises the effect of the two separate injuries with some impairments that overlap and another that does not.
[11] See s 25(4) SRC Act.
32.In the result we would set aside the decision under review and substitute a decision that Mr Grieve has a 10% degree of permanent impairment resulting from his sciatica condition. We would remit the matter to Comcare for the purposes of determining the amount of compensation payable. Comcare should pay Mr Grieve’s costs of, and incidental to, this application to be taxed if not agreed.
Neck/right arm
33.The contest here is whether there is a causal connection between these conditions and Mr Grieve’s service. Mr Grieve complains of right-sided neck pain with some stiffness together with right shoulder and right arm pain. He attributes his present symptoms to a fall on the basketball court undertaking a service activity in April 2003.
34.Mr Grieve’s neck/right arm condition has been considered by a number of medical practitioners. Dr Mark Sheridan, a neurologist, appears to have been the first to investigate the matter when he saw Mr Grieve in May 2005. At that time Mr Grieve described a five week history of neck pain with “right arm radiculopathy”. Mr Grieve was unable, at that time, to think of any precipitating cause for these symptoms. A scan undertaken at that time showed a C5-6 disc bulge with mild degenerative changes. Dr Morris, described the condition as a disc prolapse at C5/6 with disc degeneration at C4/5, C5/6 and C6/7. Dr Nave described it similarly.
35.The issue here is the connection between the condition and Mr Grieve’s employment. On the most favourable view for Mr Grieve he made no complaint of the pain he now experiences in this area until some 12 months after the incident in April 2003. Moreover, when he saw Dr Sheridan in May 2005 he was unable to think of any precipitating cause at that time.
36.Dr Morris expressed the view that he would have expected a report of pain in the area at the time of the April 2003 fall had that been the precipitating cause of the disc prolapse. Dr Nave was of the view that there was a “minor” injury in April 2003 which had settled with no neck symptoms developing until late in 2004. Both Dr Nave and Dr Morris expressed the view that there was no evidence, on the material available to them, of any connection between a fall in April 2003 and the present condition.
37.Dr Purssey alone suggested such a connection. However, when pressed, he seemed to express the view that it was likely that the condition had been aggravated by the rigours of army life prior to the visit to Dr Sheridan in May 2005. If that be so, and we make no findings about that, Mr Grieve may have a basis for bringing an application for compensation under the MRC Act, for it is that Act which applies to compensation for injuries suffered as a result of service after 1 July 2004. Mr Grieve will need to take his own advice on the matter. It is enough for present purposes for us to conclude that the evidence of Dr Nave and Dr Morris, which we accept, leaves us not satisfied that there is any connection between Mr Grieve’s condition and the incident in April 2003 which Mr Grieve contends caused his neck and right arm injury.
38.It follows that we would affirm the decision in Application 2007/1674.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC and Dr G J Maynard, Brigadier (Rtd), Member
Signed: .................Signed....................................................
Jacqueline Woods, AssociateDate of Hearing 26-27 June 2008
Date of last submissions 18 August 2008
Date of Decision 5 September 2008
Counsel for the applicant Ms S Scott-McKenzie
Solicitors for the applicant Slater & Gordon
Solicitors for the respondent DLA Phillips Fox
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