Hemley and Military Rehabilitation and Compensation Commission

[2006] AATA 128

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 128

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/495

GENERAL ADMINISTRATIVE DIVISION		)
Re		RODNEY HEMLEY

Applicant

And MILITARY REHABILITATION
AND COMPENSATION
COMMISSION

Respondent

DECISION

TribunalMs M J Carstairs, Member

Dr G Maynard, Member

Dr M Denovan, Member

Date16 February 2006

PlaceBrisbane

Decision

The Tribunal sets aside the decision under review and substitutes the decision that Mr Hemley suffers 20% whole person impairment under Table 9.5 of the Guide to the Assessment of the Degree of Permanent Impairment. The Tribunal remits the matter to the respondent to assess the applicant's entitlements under s24 and s27 of the Safety, Rehabilitation and Compensation Act 1988 (the Act).

The Tribunal orders the respondent to pay the applicant’s costs in the proceedings pursuant to s67(9) of the Act.

.........…[Sgd].............

MJ Carstairs
  Presiding Member

CATCHWORDS

COMPENSATION – left knee injury – claim for permanent impairment – whether applicant experiences difficulty with distances such as warrants higher rating under Table 9.5

Safety, Rehabilitation and Compensation Act 1988 ss 4, 24

Re Whelan and Department of Defence (1996) 47 ALD 383
Re Morley and Comcare (1996) 40 ALD 725
Comcare v Moon [2003] FCA 569

REASONS FOR DECISION

16 February 2006

Ms M Carstairs, Member

Dr G Maynard, Member

Dr M Denovan, Member

1.      Rodney Hemley sustained an injury, namely plantar calcaneal spur of the left foot, in the course of his duties in the RAAF and the respondent accepts that he is entitled to compensation for the injury.  One of the benefits available under the legislation  is for a lump sum payment where the person has sustained permanent impairment.   These lump sums are worked out based upon percentages of impairment, usually assigned after medical assessment, in accordance with the relevant Tables called the Guide to the Assessment of Permanent Impairment (the Guide).

2.       The respondent granted Mr Hemley’s claim for permanent impairment and decided that the appropriate rating under the Tables was 10% using Table 9.5, which assesses lower limb impairment.  Mr Hemley says that 10% under-estimates the extent of his disability, which he says accords with an assessment of 20% whole person impairment.

ISSUES

3. Under s4 of the Safety, Rehabilitation and Compensation Act (the  Act), the words permanent and impairment are defined as follows:

4(1)     In this Act, unless the contrary intention appears:

permanent means likely to continue indefinitely.

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.

4.      The Principles of Assessment at page 3 of the Guide, under the heading Impairment and Non-Economic Loss, state:

Impairment is measured against its effect on personal efficiency in the ‘activities of daily living’ in comparison with a normal healthy person.

5. Section 24 of the Act sets out that in deciding whether impairment is permanent, account must be taken, amongst other things, of the duration of the impairment; any likelihood of improvement; and whether reasonable rehabilitative treatment has been undertaken.   We were not asked to decide this aspect – the parties agree that this is established and we accept the medical evidence supports the correctness of that conclusion.

BACKGROUND

6.      Mr Hemley is a forty year old serving member of the RAAF who has had some seventeen years of service.    He has suffered left foot pain since about 1999, and was diagnosed after x-rays were conducted in 2001 as having a small plantar calcaneal spur.

7.      Mr Hemley sought treatment in 2001, at first with a podiatrist (T7).  When his symptoms continued, Mr Hemley was referred to Mr S Baddeley, orthopaedic surgeon, who treated him conservatively in the first instance and injected the heel with steroids (T8).  Later Mr Baddeley carried out a surgical plantar release (T10) in May 2002 (T12). 

8.        Mr Hemley still has symptoms, and it is  partly the extent of these symptoms that concerns us here.

DOES MR HEMLEY EXPERIENCE DIFFICULTY WITH DISTANCES?

Mr Hemley told us that he first experienced painful left foot symptoms in about 1999, but now believes there were earlier indications of a developing  problem that he had not placed sufficient significance on at the time.  He attributed some worsening of the foot problems to his service when he was allotted for duty in East Timor and  was required to wear heavier full battle dress and was not issued with the appropriate Army regulation footwear.  He noticed that when his posting to East Timor concluded r and he returned to Darwin,  his foot problems were such that was unable to participate in his favoured sport of cricket.  He told us that he had once been a very active sportsman, but he now can do little.  He said that he tries to keep up some appearances of activity, because someone of his seniority in the Forces is expected to provide good example to younger men, but he said that he can do little, and maintains his involvement by organising rather than participating in sports.  He said that he had not completed PFT since about 2000/2001.  He does occasionally walk  distances of approximately 1.5 km at work.    He said that he is concerned that he will not be able to continue in the RAAF because he cannot maintain the necessary level of fitness.      r Hemley said that his left foot continued to trouble him after the surgery and has not improved, but he said he had adapted his method of walking.  He agrees that he is conscious that he is favouring and protecting his left leg and in doing so walks with a limping gait. 

9.      With regard to activities outside of work, Mr Hemley said that he is restricted in what he can do.  He said he can no longer play golf.  He said that he can mow his very small lawn and tend his garden. He also walks his dogs. However he said these activities cause him discomfort but he ensures that he does them because he has to maintain function. Mr Hemley agreed that there were few references in his service medical records to attendances with medical practitioners where he reported to doctors that he had continuing problems with his left foot.  

10.     When Mr Hemley was taken in cross-examination to Dr Baddeley’s report prepared six months after the surgery, where Dr Baddeley noted that Mr Ewer had done very well post-operatively, with some minor numbness in the heel being the only symptom, he agreed that he had told Dr Baddeley that he had been ”going good”. Mr Hemley said that he told the doctor this because at that stage of his rehabilitation he did not know what to expect, and also he had been able to minimise the discomfort in his foot by ”mothering it”, and using crutches.

11.     Mr Hemley denied that he has been able to run since his foot surgery.  However, his military medical records indicate otherwise. Those records include a number of references made, in the years post-operatively, to Mr Hemley experiencing pain with excessive running. Significantly, restrictions placed on Mr Hemley when a medical employment classification review was performed on 31 May 2004 included ”running within limitations”.  When asked to comment on these records, Mr Hemley said that the RAAF did not allow medical waivers, and for him to complete 20 years of service he had to maintain a certain degree of physical fitness that required him to be able to run.  Mr Hemley claimed that the references to him running in his medical documents were created by the medical staff who were attempting to assist him, and were not a true reflection of his situation, which was that he could not run.   However there were a number of entries of this kind.  We do not accept Mr Hemley’s explanation as plausible  and conclude that the account Mr Hemley gives of the extent of his incapacity post-operatively is exaggerated.

12.     Capacities to run aside, Mr Hemley’s medical records do indicate that he has experienced ongoing problems with his foot post-operatively. To conclude otherwise would require us to disregard multiple medical and physiotherapy assessments included in Mr Hemley’s medical records. These include a medical classification review examination referred to above that placed Mr Hemley on restrictions of ”PT at own pace, running within limitations, requires non-issue foot wear”, a more recent medical classification review that noted Mr Hemley continues to have left heel pain with running, walking and standing, and a further review performed on 12 July 2005 that advised Mr Hemley is to keep lower limb impact work to a minimum and is to walk for the PFT. ( Exhibit R2 – folio 12)

13.     In a medical report dated 12 November 2003 (T17), rehabilitation physician Dr S Blight recorded Mr Hemley’s history of symptoms and the treatment including surgery. Dr Blight noted Mr Hemley’s difficulties with stairs and that he  took the weight through his right leg and had restricted range of ankle movement. Dr Blight gave evidence at the hearing that whilst she observed Mr Hemley ascend and descend a flight of stairs she did not observe him walking distances.  Dr Blight said that because Mr Hemley had difficulty walking up and down stairs she assumed that he had a problem walking distances. She could not recall specifically questioning Mr Hemley about the matter.

14.     We did not place  reliance on the opinion of Dr Blight given that her opinion was based on  assumptions rather than objective testing, and not substantiated by either patient history or clinical observation.

15.     In a report dated 1 October 2004, occupational physician Dr S Homolka said that Mr Hemley estimated his running and walking tolerance to be of the order of 1km on level ground, and that he told her that he generally finds himself limping by the end of each day. On examination Dr Homolka observed Mr Hemley to have an antalgic gait (which means one to prevent or mitigate pain) with a slight limp. She noted that mounting and dismounting a flight of 10 steps was managed without assistance of a handrail, albeit a slight limp was again demonstrable on descending. Dr Homolka concluded that Mr Hemley’s symptoms are contributed to by a significant degree of functional overlay. (T18 –folio 56-57)

16.     In oral evidence at the hearing, Dr Homolka said that by functional overlay she meant that Mr Hemley demonstrated abnormal illness behaviour, that is, he has an exaggerated response to his perceived pain.  Referring to her conclusion expressed in the report that Mr Hemley is totally and permanently unfit for full-time duties of military service, she said that this was because his pain prevented him from performing regular physical demands of military training.

17.     Dr Homolka said that she observed Mr Hemley  walk a distance of approximately 160 metres without significant difficulty and concluded from that that he would have no difficulty in walking distances. In coming to this conclusion Dr Homolka said that she took into account the guidelines in the schedule of questions sent to her by the Military Compensation and Rehabilitation Service (‘MCRS’). She said that her understanding was that she was required to discount pain when assessing objective difficulty. Had she not done so, she would have assessed Mr Hemley’s impairment  higher. Dr Homolka said that notwithstanding a degree of functional overlay, there was no suggestion that Mr Hemley had made a full recovery from his plantar surgery.

18.     In a report dated 9 May 2005 (T20) Dr Vecchio said that Mr Hemley reported consistent heel pain which restricts his activity levels and that he is able to walk flat for approximately a kilometre, although he limps.  Dr Vecchio reported Mr Hemley as saying that running and hopping are impossible. Dr Vecchio stated that although Mr Hemley limps when walking  distances,  this does not translate to ‘objective’ difficulty despite the pain that he is experiencing.

19.     In oral evidence Dr Vecchio said that he observed Mr Hemley perform a circuit that involved stairs and grades. Dr Vecchio said that when he concluded that Mr Hemley had no trouble with distances he was mindful of the guidelines provided by MCRS. His understanding was that although Mr Hemley experienced both pain and a limp when walking distances neither of these symptoms constituted an objective difficulty according to the guidelines. Dr Vecchio’s opinion is that the nature of Mr Hemley’s condition was such that he would experience pain when walking distances. He said that a normal man of Mr Hemley’s age of forty years should be able to walk several kilometres without difficulty.

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. We accept the evidence of Dr Vecchio that at his age Mr Hemley should be able to walk several kilometres.

21.     According to the decision in Comcare v Moon [2003] FCA 569 pain experienced with an activity presents a difficulty with an activity. We took into account that Mr Hemley is a less than reliable witness concerning the extent of him limitations. We also took into account that he may have exaggerated his symptoms to the specialist medical practitioners; Dr Homolka clearly thought so. However we accept Dr Vecchio’s evidence that the nature of his condition is such that Mr Hemley would experience pain when walking distances. In coming to this conclusion we took into account that Dr Vecchio’s assessment of Mr Hemley was more comprehensive than that of the other doctors whose opinions are before the Tribunal. We also consider that Dr Homolka’s evidence, particularly her oral evidence, supports this conclusion.

22.     We therefore conclude that due to his plantar fasciitis, Mr Hemley has difficulty with distances  that would be expected to be transversed by a normal healthy person of his age.  For this reason he meets the requirements of a grading of 20% under Table 9.5 for lower limb function which provides:

20can rise to standing position and walk but has difficulty with grades, steps and distances

DECISION

23. The Tribunal sets aside the decision under review and substitutes the decision that Mr Hemley suffers 20% whole person impairment under Table 9.5 of the Guide to the Assessment of the Degree of Permanent Impairment. The Tribunal remits the matter to the respondent to assess the applicant's entitlements under the s24 and s27 of the Act.

24.     The Tribunal orders the respondent to pay the applicant’s costs in the proceedings pursuant to s67(9) of the Act.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M Carstairs, Dr G Maynard and Dr M Denovan, Members

Signed:         Jeff Mills
  Legal Research Officer

Date/s of Hearing  1 February 2006
Date of Decision  16  February 2006
Counsel for the Applicant         Ms K Philipson
Solicitor for the Applicant          D’Arcy’s
Counsel for the Respondent     Mr C Clark
Solicitor for the Respondent      Dibbs Abbott Stillman