Hawas and Military Compensation and Rehabilitation Commission

[2004] AATA 1144

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1144

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/1783

VETERANS APPEALS DIVISION		)
Re		TANIOUS HAWAS

Applicant

And MILITARY COMPENSATION AND REHABILITATION COMMISSION

Respondent

DECISION

Tribunal M.A. Griffin

Date3 November 2004

PlaceSydney

Decision The decision under review is affirmed.

[SGN] Mr M.A. Griffin

Member

CATCHWORDS

COMPENSATION – Applicant injured during Army service - knee injury - degree of impairment – injury not permanent - decision affirmed

Safety Rehabilitation and Compensation Act 1988 – Section 24

REASONS FOR DECISION

3 November 2004    M.A. Griffin, Member       

1.      Mr Hawas sustained an injury to his left knee during Army service. He made a claim for compensation pursuant to the Safety Rehabilitation and Compensation Act 1988 (the “Act”).  On 29 April 2003 a delegate of the Department of Veterans’ Affairs determined the claim and awarded Mr Hawas a lump sum payment for 10 per cent whole person impairment. At Mr Hawas’ request the determination was reconsidered and subsequently affirmed by another delegate of the Department on 16 October 2003. Mr Hawas seeks review of that decision.

2. At the hearing before the Tribunal Mr Hawas was represented by Mr G. Niven of counsel. Mr G.T. Johnson of counsel appeared for the Respondent. Mr Hawas gave oral evidence in person. The Tribunal received oral evidence from two specialist orthopaedic surgeons, Dr Sage and Dr Maxwell. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T Documents”) and the exhibits tendered during the hearing.

Issue

3.      The issue before the Tribunal is whether Mr Hawas suffers a permanent impairment, arising out of an injury to his left knee, which is greater than 10% when assessed on a whole person basis in accordance with Table 9.5 of the Guide to Assessment of Degree of Permanent Impairment.

Evidence

4.      Mr Hawas is 27 years of age. He enlisted in the Australian Regular Army in May 1995. He served in the Infantry Parachute Battalion 3 RAR.  His left knee was injured during a unit soccer game in November 1997. On 15 September 1998 Mr Hawas underwent surgery for treatment of an irreparable displaced bucket handle tear to the medical meniscus and a complete ACL tear, which was repaired (T7, T17 and T19).

5.      A medical board examination on 11 August 1999 noted “now running up to 2 km knee improving expect good recovery” (T25). Consequently, his medical fitness categorisation was upgraded from class III to class II with restrictions of “nil para [no parachuting] packmarch at own pace” (T25).

6.      On 30 October 2001 Mr Hawas lodged a claim for compensation for his knee injury. He stated:

“On completion of my operation and after physiotherapy I was able to walk again after eight weeks. I was medically downgraded for two years. I was unable to parachute during that time. I am also wishing to be compensated for loss of wages in this time. I was not able to complete any type of lower body training for approximately twelve months after the operations. In this time I gained a lot of weight due to lack of exercise.

I have not been able to run for more than 2.5km without feeling massive discomfort in my left knee, with it swelling up and becoming heated. I completed a 15km route marched (sic) for the first time since the injury, three months ago. On that day I was in pain but able to complete the march. The next two days I was unable to walk or put weight on my left knee. It required two days of heavy icing for the knee to return to normal…

I am currently in a clerical position but find this clerical role is unsatisfying to me and this is the reason I am discharging from the Army” (T29).

Mr Hawas subsequently took a voluntary discharge from the Army in February 2002.

7.      Mr Hawas has since been examined by several orthopaedic specialists in respect of his left knee injury. On 21 March 2002 Dr Ghabrial reported:

“Examination…showed wasting of the left quadriceps group of muscles. There is minor to moderate effusion…He remains unfit for many activities involving running, climbing ladders, going up and down stairs excessively and [he should] avoid walking up and down hills as well as steps and distances.

I have assessed the limb function (lower limb) according to the guidelines…at 20%.

I believe it is highly likely that he will require further treatment…and ultimately there is a very high chance of requiring total knee replacement” (T36).

8.      Dr Harrington saw Mr Hawas on 10 February 2003 and noted “He can’t trust his knee, that is, he wouldn’t run, hop, skip or jump but he could run across the road. He can’t play tennis but has been able to play golf. He can walk on the flat for a fair way. His knee swells if he overdoes it…I think this man would probably benefit from building up his quadriceps if this is possible. He says that he has given it his best shot and hasn’t achieved much but his quadriceps are quite marked and wasted compared to the other side. I don’t think Mr Hawas’ left knee would be strong for a career path in the Armed Services. I believe he would only be fit for work on carpet. I would give him a percentage disability of 15% for his…knee” (T48). In a supplementary report Dr Harrington assessed a 10% whole person impairment for the purposes of Table 9.5 stating “That is, he can rise to a standing position and walk but has difficulty with grades and steps” (T52). Dr Harrington also reported relevantly, “Mr Hawas’ condition could be improved if he tried building up his quadriceps but this would not decrease his percentage disability as a whole person impairment”.

9.      On 13 January 2004 Dr Ghabrial gave a further report stating:

“Mr Hawas can rise to standing position and walk but has difficulty with grades, steps and distances. That attracts 20% whole person impairment regarding lower limb function. Taking into account his injuries, I believe that he has difficulties in distances” (exhibit A2).

10.     Dr Sage saw Mr Hawas on 27 January 2004. Dr Sage noted:

“The discomfort is anterior and medial. It has been worse over the last two weeks. It is aggravated by trying to squat on this knee, trying to run, walking more than 500m and on hills if they are steep…He can walk for one to two hours, though he will probably have multiple stops. He can manage stairs, but he says he only takes a short step with the left leg and he can manage hills…There is 4cm of thigh wasting…With this fairly constant pain over the last few weeks and frequently at other times with activities this probably suggests he is getting significant medial compartment degenerative changes…I think he should work on the wasted thigh by some walking in a pool and using occasional analgesics…In Table 9.5 I feel he fits into the first grading of 10% in that he can rise to standing positions and walk but has difficulty with grades and steps…He can walk for an hour and a half, though he says he has repetitive stops, and he can go up stairs, though with a little bit of difficulty. At the present time I feel he is in the 10% whole person impairment level” (exhibit A3).

11.     At the request of Mr Hawas’s solicitors, Dr Sage provided a supplementary report. He wrote:

“As you remember last time I was not completely happy with the 10%. Table 9.5 is a bit unsatisfactory as with an impairment you are meant to be able to measure something. He does have difficulty with distances so a 20% whole person impairment should be given according to the Comcare Guides” (exhibit A4).

12.     Mr Hawas was examined by Dr Maxwell on 25 March 2004. Dr Maxwell noted:

“He states he has no problem with his left knee as long as he doesn’t do heavy work. He is unable to run with comfort. Sometimes when he is standing in a queue his left leg will give way. He is able to climb stairs without any problems but is more cautious coming down as he feels his left leg may give way. He is able to walk for 20-25 minutes without any difficulty and travel up to 1-1/2kms. He is able to play 9 holes of golf…He walked without a limp. The muscles of his left leg were wasted…The weakness of his left leg alone would be responsible for his continuing symptoms…I believe his symptoms would improve if he were to undergo a (sic) adequate muscular rehabilitation programme…It appears that he may not have been informed about the necessity for rehabilitating his quadriceps muscle group, to stabilise his knee” (exhibit R2).

13.     Mr Hawas told the Tribunal that the walking he told Dr Maxwell about referred to walking in a shopping centre or around the block. He said he had played golf but used a motorised cart and did not walk except for the 2 metre gap to the putting green where the golf-cart could not go.  Mr Hawas said the pain he experienced in doing exercise for his leg prevented him from building up the thigh muscle. He said he favoured his right leg on steps and when he used the exercise bike. He said he stopped the leg exercises because they were painful. He said he attempted the exercise bike about once a month over the last few years but each time he put pressure on the left leg it caused pain and he stopped. He would try again a month later with the same result.

14.     In oral evidence Dr Sage agreed (transcript page 46) that “the cap of best fit remained 10 per cent as it was on 29 January 2004”, the date of his first report. Dr Sage said that exercise would help Mr Hawas to build up his thigh. He was asked (transcript page 48) “All right, well, you would agree, in any event wouldn’t you, that if he embarked on a suitable exercise program in relation to the left leg with a view towards building up those thigh muscles that that would be likely to increase his capacity and reduce his impairment?”. Dr Sage replied “Should improve the situation”.

15.     Dr Sage was asked in re-examination (transcript pages 49-50), “…in terms of the overall benefit that might come to Mr Hawas if he were to embark, or were to use more suitable rehabilitative exercises to improve his position, would that result in a change of your overall assessment of permanent impairment?”. Dr Sage answered “This could – would make – could make a difference with regard to needing to stop with walking…with more support of his knee from the quadriceps and better control of the knee cap the stopping with walking may be minimised…The stopping when he walks would be minimised”.

Legislation

16.     Section 24 of the Act relevantly provides:

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.

Consideration of the Issue

17.     Mr Hawas’ credibility was expressly accepted by counsel for the Respondent and the Tribunal accepts his evidence about the pain and limitations of movement that he experiences. The evidence is that Mr Hawas has a wasted quadriceps muscle group in his left leg. The evidence is that a suitable exercise program would build up this muscle group and restore control and stability of the knee cap. The evidence is that Mr Hawas has attempted such exercise about once per month but stopped immediately on each occasion due to pain.

18.     The difference between 10% and 20% whole person impairment in Table 9.5 is difficulty with walking distances. The evidence of Dr Maxwell and Dr Sage is that a program of suitable exercise would minimise the difficulty that Mr Hawas has with walking distances and reduce his impairment.  It follows from this evidence that his condition is not permanent because there is a likelihood of improvement in the employee’s condition, at least in regard to walking distances. Therefore the Tribunal cannot be satisfied that Mr Hawas has a whole person permanent impairment greater than 10 per cent.

Decision

19.     The decision under review is affirmed.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of M.A. Griffin, Member

Signed:  M. Di Condio
  Associate

Date/s of Hearing  2 August 2004 
Date of Decision  3 November 2003         
Counsel for the Applicant         Mr G Niven 
Solicitor for the Applicant          Mr G Shipp, Boshev and Associates, solicitors 
Counsel for the Respondent     Mr GT Johnson 

Solicitor for the Respondent          Ms Maree Mittiga, Dibbs Barker Gosling,   

solicitors