Henderson and Military Rehabilitation and Compensation Commission
[2007] AATA 1184
•28 March 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1184
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W 200600146
VETERANS' APPEALS DIVISION ) Re RICHARD WILLIAM HENDERSON Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Deputy President S D Hotop Date28 March 2007
PlacePerth
Decision The Tribunal affirms the decision under review.
..........[Sgd S D Hotop]...........
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employees – permanent impairment – applicant sustained knee injury in course of Army service in 1996 – respondent accepted liability to pay compensation to applicant in respect of knee injury – applicant claimed compensation for permanent impairment resulting from knee injury – applicant's knee injury has resulted in permanent impairment – degree of permanent impairment – table 9.5 in approved Guide is applicable – applicant does not have difficulty with grades and steps – degree of permanent impairment under table 9.5 is 0% – compensation for permanent impairment not payable to applicant – decision under review affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 14, s 24 and s 27
Comcare v Fiedler (2001) 115 FCR 328
Comcare v Moon (2003) 75 ALD 160
Whittaker v Comcare (1998) 86 FCR 532
REASONS FOR DECISION
28 March 2007 Deputy President S D Hotop 1. Richard William Henderson (“the applicant”) served in the Australian Regular Army from October 1992 to December 2004. He is presently 32 years of age.
2. On or about 15 May 1996 the applicant, in the course of his Army service, suffered an injury to his left knee. On 11 May 2000 he claimed compensation, under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”), in respect of that injury, and on 27 June 2000 the respondent accepted liability under the SRC Act to pay compensation to the applicant in respect of an injury, described as “Left knee – Torn lateral meniscus”, sustained on 15 May 1996.
3. The applicant subsequently claimed compensation under the SRC Act for permanent impairment resulting from his abovementioned left knee injury and, on 18 January 2006, the respondent determined that it was not liable under the SRC Act to pay such compensation to the applicant.
4. Following a request by the applicant, the respondent reconsidered its determination of 18 January 2006 and, on 9 May 2006, the respondent made a “reviewable decision” under the SRC Act affirming that determination.
5. On 19 May 2006 the applicant applied to the Tribunal for review of the respondent’s “reviewable decision” of 9 May 2006.
The Issue and the Tribunal’s Determination
6. The issue for the Tribunal’s determination is whether the respondent is liable under the SRC Act to pay compensation to the applicant for permanent impairment resulting from the left knee injury which he sustained on 15 May 1996 in the course of his Army service.
7. For the reasons which follow, the Tribunal has determined that the respondent is not liable under the SRC Act to pay such compensation to the applicant.
The Legislative Framework
8. Pursuant to s 14(1) of the SRC Act, the respondent is liable to pay compensation in accordance with that Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
9. Section 24 of the SRC Act provides for the payment of compensation for injuries resulting in permanent impairment. The lump sum amount of compensation which is payable in accordance with s 24 is calculated by reference to the “degree of permanent impairment” which, by s 24(5), is to be determined in accordance with the provisions of the “approved Guide”, namely, the Guide to the Assessment of the Degree of Permanent Impairment prepared by Comcare in accordance with s 28 of the SRC Act. Pursuant to s 24(7), where it is determined that the relevant degree of permanent impairment is less than 10%, compensation is not payable under s 24 (except in the case of certain specific categories of impairment, none of which is relevant here).
10. Section 27 of the SRC Act provides that, where compensation is payable under s 24 in respect of an injury resulting in permanent impairment, additional compensation is payable for any “non-economic loss” suffered by the employee as a result of that injury or impairment.
11. The approved Guide contains the “impairment tables” on the basis of which the relevant degree of permanent impairment is to be assessed. Each table contains descriptions of levels of impairment and assigns a percentage of “whole person impairment” – that is, the impairment of the functional capacity of a normal healthy person – to each description. Relevantly, tables 9.2 and 9.5 relate to, respectively, lower extremity joints, and lower limb function, and set out the descriptions of levels of impairment, and the corresponding percentages of whole person impairment, as follows:
“TABLE 9.2
…
% DESCRIPTION OF LEVEL OF IMPAIRMENT
0 X-ray changes but no loss of function of hip, knee or ankle
OR
Ankylosis or lesser changes in any toes except the first hallux
5 Loss of less than half normal range of movement of ankle
10 ANY ONE of the following:
. loss of less than half normal range of movement of hip or knee
. loss of half normal range of movement of ankle
. ankylosis of first hallux
15 Loss of more than half normal range of movement of ankle
20 ANY ONE of the following:
. Loss of half normal range of movement of hip or knee
. ankylosis of ankle
30 Loss of more than half normal range of movement of hip or knee
40 Ankylosis of hip or knee
…
TABLE 9.5
…
% DESCRIPTION OF LEVEL 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
30 Can rise to standing position and walk with difficulty BUT is limited to level surfaces
50 Can rise to standing position and maintain it with difficulty BUT cannot walk
65 Cannot stand or walk”.
The Evidence
12. The evidence before the Tribunal comprised:
· the “T Documents” (T1-T36, pp 1-132) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
· various documents tendered in evidence by the applicant (Exhibits A1-A3) and by the respondent (Exhibits R1-R2); and
· the oral evidence of the applicant, Mr B Slinger and Dr K Powers.
The applicant’s evidence
13. The applicant confirmed that he had signed two written statements, dated 13 July 2006 and 15 February 2007, and that the contents of those statements are true to the best of his knowledge and belief. Those statements were tendered in evidence (Exhibits A1 and A2, respectively). An earlier statement of the applicant, dated 30 January 2006, is contained in the T Documents (T27, pp 99-100).
14. The applicant’s statement of 15 February 2007 is as follows:
“…
ORIGINAL INJURY
1.In 1996, I initially injured my left knee whilst running down a hill during physical training in my unit in the Army.
2.After my injury I immediately reported to the Unit Regimental Aid Post for treatment.
3.In 1997 I further injured my left knee during Army approved rugby training.
4.I had my first knee operation in February 1998 which I understood found that I had a small tear of my lateral meniscus and a grade 1/2 chondromalacia of my patella in my left knee. This seemed to improve after my operation with physiotherapy assistance.
5.My second knee operation was in April 1999. I understood this found tessellations of the medial femoral condyle, a tear to the mid third lateral meniscus and a grade 3 chondromalacia.
6.Due to continuing knee pain in 2000 and 2002, I was referred to a physiotherapist for treatment and exercise programming which improved my symptoms but did not resolve them.
7.On 8 August 2001 I was medically downgraded in the Army to Class 201. I had the following restrictions: BFA run exempt, run with own limitations, fit for CFA, fit for BFA walk.
8.BFA means basic fitness assessment. CFA means combat fitness assessment.
9.Due to my knee injury, I was unable to continue playing touch football, rugby and volley ball. I have not played organised sport for many years due to the symptoms I have in my knee. In particular, I fear that my knee will give way during training and/or the game. I have, however, attended a local gym from time to time in the last couple of years in order to maintain my fitness.
10.These days, my hobbies are reading, building and painting models.
11.I was discharged from the regular Army and transferred to the Army Reserves in January 2004 (sic).
12.My current rank is Sergeant where I am currently in the process of transferring from 13 Combat Services Support Battalion, 7th Health Company to the Pilbara Regiment as an RAP Sergeant.
13.My current medical classification is 201 with the following restrictions: Fit for CFA in patrol order only, unfit for BFA run, fit to attempt walk, RDJ exempt. RDJ means Run Dodge Jump is a component of the CFA (sic).
THE EFFECT OF MY LEFT KNEE INJURY
General
14.I have a constant dull ache in my knee which progressively gets worse when I do certain things.
15.In addition, there are specific problems with certain activities.
16.The problems I have are set out below:
Sitting
17.If I sit cross-legged, I find that the pain in my knee worsens and my knee becomes stiff. If I sit in a fixed position for more than about 5 minutes, I find that the pain in my left knee worsens.
Kneeling
18.I find that kneeling causes increased pain in my knee, kneeling on hard and rough ground worsens the pain immediately and I avoid it whenever possible.
Squatting/Crouching
19.Whilst I can squat and crouch, if I do so inevitably I suffer an increase in pain in my left knee.
Standing
20.If I remain standing in a fixed position for more than 10 minutes, I find that the pain in my knee worsens and my knee becomes stiff.
Driving
21.If I drive long distances, I find that after about an hour I need to have a break because the pain in my left knee gets worse. If I take a break and have some activity in the knee such as gently walking around for a short distance or sitting with my leg out straight and gently flexing it, the pain in my knee will subside and I am able to resume driving again.
Walking
22.There are some general problems which apply with walking but in terms of distance, I find that I have an absolute limit in distance of about 5 kilometres. Often, I am not able to walk even that distance. It is rare to walk 5 kilometres on a flat stable surface without any stairs, inclines or declines. Often the introduction of one or other of those components means that walking even much shorter distances is a real difficulty for me and I will have to stop and rest.
Stairs
23.Commonly, I find that if I ascend or descend more than about 20 stairs I develop an unstable feeling in my knee which from time to time leads to it giving way, but definitely increases the pain in my knee.
Uneven Surfaces
24.When walking on uneven surfaces, inevitably I suffer an increase of pain which also often can lead to a feeling of instability and sometimes will result in my left knee giving way. I take great care on walking on uneven surfaces, being very careful to watch where I place my feet to minimise the effect of the uneven surface.
My Knee Generally
25.Apart from the pain and discomfort I have referred to, I find that my knee gives way on average two or three times per week. Sometimes this has resulted in my falling over, but usually it results in me having to grab hold of something in order to steady myself. The other difficulty I have is that there are times when my knee clicks and feels as if it is loose and there is a sensation of the knee popping.
26.The problem of my knee giving way is in part because it is quite unpredictable. It can happen in a wide range of circumstances including even walking on flat ground. It can also happen on uneven surfaces, hilly ground or stairs.
27.My response to this, is that whenever possible to avoid the environments which will cause problems of (sic) my knee or if there is no alternative (for example when needing to ascend or descend stairs) I will look out for hand rails, walls or fences and make certain I stay close to them in case my knee does give way so that I have something to hold onto to stop myself falling to the ground.
Symptoms Generally
28.I experience a constant dull ache in my knee and from time to time it will also swell. This is a typical constant. However, I do experience really bad days where the pain will be much worse and when I will have to stop walking. Sometimes this means only stopping for a few seconds, but other times it could mean for up to about a minute before I can resume walking. Another manifestation is that I get a sharp shooting pain in my knee at times either when walking on flat ground, or on slight gradients both up and down, on undulating ground and on stairs. When I get the sharp shooting pain, if I change the angle on my foot inwards or outwards, this sometimes can elevate (sic) the pain whilst walking, but it means I walk in a slightly different way compared to the period when the pain is more accurately described as the constant dull ache.
Examples of Knee Giving Way
29.I refer to my Statement dated 13 July 2006 which I understand was filed and served in the Tribunal.
30.In addition, there have been further examples since June 2006 including:
· August 2006
· November 2006
· 8 December 2006.
The Medical Reports
31.I have read the reports of both Mr Slinger and Dr Powers.
32.I accept that in general terms the doctors have accurately recorded what I have said to them and the examples I have given them.
33.I add, however, that in particular with Dr Powers, there were questions which were not asked.
34.For example, Dr Powers did not ask me whether my presentation on the day of the examination was typical, better than normal or worse than normal.
35.I would describe the day I saw Dr Powers as being a ‘good day’. By contrast, the day after seeing Dr Powers involved an example of my knee giving way whilst walking up a steep staircase. On that occasion I was actually falling although I was able to arrest my fall so I did not fall to the ground.
THE TESTS AT DR POWERS’ OFFICE
The Stairs
36.Dr Powers asked me to do a test going up and down some stairs. The particular arrangement at Dr Powers’ is that there are 10 stairs leading up to a landing. At the landing there is a short distance to walk without either going up or down and then there is a further 10 stairs which leads to another landing. In my experience, going up 10 stairs with a break in the middle followed by another 10 stairs is less likely to cause me the sorts of problems I have mentioned than if I do 20 stairs in a row and certainly 30 stairs almost always would cause problems for me.
37.I would also add that in going up and down the stairs in Dr Powers’ building, there were hand rails and whilst on this particular occasion my knee did not give way and I did not need to grab the hand rail to prevent me falling, I was aware of its location and ensured that, if necessary, I would have been able to avoid falling. This is a common way in which I approach day to day activities involving climbing up and down stairs.
38.It was, however, a fact that I did suffer an increase in pain whilst carrying out (sic), although I consider it to be the most basic exercise in climbing stairs that one comes across in normal day to day activities. Sometimes you come across a situation where there are one, two or three steps into a building or off a street, but when it is necessary to actually go up or down stairs it tends to be between 1 or 2 storeys in a building or in order to gain access from an underground carpark to street level and so on. Quite often the number of stairs involved in those examples is more than 10 at a time and sometimes even more than 20 at a time.
The Slope
39.I did not measure the slope and I accept that it was a 30 degree slope. On the particular day I saw Dr Powers I would agree that I did not have any obvious difficulty walking up and down the slope such as limping or stopping. There was however increased discomfort. There are, however, many days when a slope of even less than 30 degrees will cause problems with pain, instability or giving way. If I am having a day where that sort of problem has already started to manifest itself, I will always try to find a different route to avoid going down slopes.
The Walk
40.I consider a 200 metre walk to be almost minimal for someone of my age. On this occasion, however, even 200 metres started to produce the sensation of pressure and discomfort in my knee. I have no doubt that even on this day, if I had walked 2 kilometres I would have experienced significant problems with my knee as pain increased and the risk of it giving way would have followed.
MY EMPLOYMENT
41.Since leaving the Army as a full-time soldier, I have had a number of different jobs. In general terms, I have not volunteered information as to problems with my knee. The reason for that is that I know what activities will and will not carry with it a larger risk for me.
42.In general terms, I have been able to go about my employment without compromising either my safety and health or that of others. I do this by avoiding the activities I know will cause me problems or alternatively taking great care.
43.If I am asked, however, to specifically state my medical problems I do so. For example: In April 2005 I was required to complete a health questionnaire (Supplementary Documents [Exhibit R1] page 113).
44.Again in October 2006, I was specifically asked about workers’ compensation claims and recorded my problems in relation to my left knee (Supplementary Documents [Exhibit R1] page 182).
15. In para 29 of the above statement, the applicant referred to his earlier statement of 13 July 2006 in which examples of his knee “giving way” and other knee problems were given as follows:
“The most recent major examples of my knee problems I have experienced of significance are:
On the day (22 December 2005) I saw Dr Power (sic), I had a sharp increase in pain whilst I was ascending approximately 10 stairs. I had to rest at the top of these stairs to allow my pain to subside before I could continue walking.
The following day (23 December 2005) after seeing Dr Power (sic) my knee gave way whilst I was ascending a steep stair case of approximately 30 stairs. I was able to arrest my fall and regain my balance.
On the 25th January 2006, whilst walking along St George’s Terrace my knee gave way, this time I arrested my fall by placing my hands on the ground, where I felt quite embarrassed.
February 2006, I was walking to my local shop where I had to walk on a sandy track approximately 20 metres on the track I was (sic) had to stop as I experienced a rapid increase in pain, this took approximately 10 seconds to settle.
February 2006, whilst at the gym walking briskly on a treadmill my knee gave way causing me to grab the handrails, and almost fall off the tread mill.
March 2006, I had to stop on a set of stairs until the pain in my knee subsided.
March 2006, whilst at the gym I went to squat and pick up a weight from the ground and return it to the weight rack when I experienced a sharp increase of pain which caused me to drop the weight on the floor and grab my knee. The pain subsided also instantly.
March 2006, whilst walking home from the train station I experienced a sharp increase of pain at approximately 2 kms away from the train station, which caused me to stop and let the pain subside before I could walk off again.
April 2006, after a light jog of about 200 metres I experienced an increase of pain to the point where I had to stop completely for approximately 2 minutes, but this pain rapidly subsided enabling me to walk the rest of my journey.
April 2006, with my left foot on the ground I went to turn to the right and take a step with my right foot when I had an increase in pain and a sensation that felt as though my knee cap had moved out of its groove and then slipped back into place. This caused me to stop instantly and the pain subsided quickly.
June 2006, I stepped off with my right foot but felt a sudden increase of pain in my left knee and heard/felt a loud crack emit from my knee, once again I immediately stopped but my pain had instantly subsided.”
16. In his oral evidence-in-chief the applicant elaborated on the further examples of his knee “giving way”, referred to in para 30 of his above statement, as follows:
· 8 December 2006 – while working as a security officer in Port Hedland he was walking on a flat concrete slab towards the entry/exit gate when his knee “gave way”, but he was able to support himself on the gatehouse building and then continued walking to the gate;
· November 2006 – his knee “gave way” as he was walking to a bookshop in Perth, but he managed to “catch” himself and prevent himself from falling;
· August 2006 – whilst working with the Army Reserves he and a friend were walking on a footpath to the mess when his knee “gave way fairly substantially”, but he managed to support himself from falling.
17. As regards the activities of walking up and down a slope, and then walking a distance of 200 metres, referred to in paras 39 and 40 of his above statement, the applicant said that Dr Powers got him to walk up the slope (which was in the underground car park of the building in which she worked) for about 10 metres, then walk back down the slope, and then he and she walked back up the slope and then walked from the car park to the front of the building. Asked how his knee was feeling on that day, he responded:
“It was actually a good day. My knee didn’t feel overly sore, it didn’t feel weak; it was a good day for me for walking.”
18. In cross-examination the applicant said that he discharged from the Army in late 2004/early 2005 and he confirmed that his discharge was not on medical grounds.
19. The applicant confirmed that his post-discharge employment history is as follows:
· January-February 2005 – employed by Chubb Security as a security officer;
· February-April 2005 – employed by Advance Life Ambulance Service as a first aid instructor and ambulance officer;
· April 2005-December 2006 – employed by ChoiceOne Total Recruitment as an industrial paramedic and security officer;
· February-April 2006 – employed by Zest Health Clubs as a gym instructor.
He said that he currently works as a storeman for a construction company in Port Hedland.
20. The applicant confirmed that, at the behest of his solicitors, he saw Mr Slinger, Orthopaedic Surgeon, on 19 July 2005 and that the history regarding his left knee, as recorded in Mr Slinger’s report of 25 July 2005 (T20, pp 52-53 – see paragraph 26 below), is true and correct. He said that he still “get(s) problems going up and down stairs” but he agreed that those problems had not become worse since he saw Mr Slinger. He confirmed that, when going up 20-30 stairs, and coming down, his knee feels unstable and weak, but he acknowledged that that was “something quite distinct from the knee giving way”, which was “another step altogether”. He confirmed that he told Mr Slinger that it was when he was walking that his knee would “suddenly give way”. He said that he is able to run but that he “generally tr(ies) not to”. He said that he is able to complete the Army BFA 2.4km run, but not within the required time limit. His cross-examination continued:
“And you still do some running, don’t you?---No, I don’t.
Didn’t you go running through King’s Park?---I have done some running through King’s Park.
Okay. When was the last time?---Oh, it would have been last year.
When last year?---July or August.
Okay. And I’m a stranger to this town, but King’s Park is not a flat park, is it?---Some areas are.
It’s up hill and down dale in a lot of parts, isn’t it?---Yes.
And you would run over those parts, wouldn’t you?---I have run over some of those parts, yes.
As recently as last year?---Yes.”
He confirmed that Mr Slinger did not ask him anything about his ability to negotiate slopes or grades.
21. The applicant was next referred to the report of Dr K Powers, Occupational Physician Registrar, dated 23 December 2005 (T24 – see paragraph 31 below). He confirmed that the history, as recorded in Dr Powers’ report, is true and correct. As regards the reference in the report to his having “given up touch football”, he said that he gave up “playing in any form of team” in 1996 but he acknowledged that he had since been playing “Army-organised” touch football about once per month, the last occasion being in July 2006. He acknowledged that the statement in para 9 of his witness statement dated 15 February 2007 (Exhibit A2) that he was “unable to continue playing touch football” was untrue. [The Tribunal notes that that statement also appeared in his earlier statements of 30 January 2006 (T27, pp 99-100) and 13 July 2006 (Exhibit A1).] He agreed that he had told Dr Powers that his knee “gives way at the end of a day of high exertion”, but he added that at times his knee gives way when there has not been any exertion. He agreed that he had not told that to Dr Powers but he explained that his knee had not given way “outside of high exertion” at that time. He added, however, that he did not think his knee had got worse, but that he had “just noticed” that his knee “can give way without having high exertion”.
22. The applicant was referred to the following passage which appears in his statement of 30 January 2006 (T27, pp 99-100):
“On the day (22 December 2005) I saw Dr Power (sic), I had a sharp increase in pain whilst I was ascending approximately 10 stairs where I had to use the hand rail for support and rest at the top of these stairs to allow the pain to subside before I could continue walking.”
He explained that that incident occurred when he was going to Dr Powers’ office for a clinical examination, not during the examination itself. He agreed that during the examination, he was able to ascend and descend stairs at normal speed. He reiterated, however, that, as stated in his abovementioned statement, the day on which he was examined by Dr Powers was a “good day”. He added:
“My leg wasn’t unduly aching, wasn’t sore. Yes, okay, I had a bit of a problem going upstairs, going to Dr Powers, but that’s all I had for the day.”
Asked whether he had told Dr Powers about the abovementioned incident which he said had occurred while on his way to her office, he initially responded that he could not remember but he ultimately acknowledged that he had not, and he was unable to explain why he had not. He also acknowledged that he did not tell Dr Powers that he has “good days” and “bad days”.
23. The applicant said that he walks from his house to the local railway station, and vice versa, a distance of “five kilometres, at least” each way.
24. The applicant was referred to his Army Reserves medical fitness assessment dated 29 January 2006 (Exhibit R1, p 256). He acknowledged that he was assessed as:
· fit for CFA in patrol order only – which includes a forced march of 10 kilometres carrying webbing and a rifle;
· fit to attempt a walk of 5 kilometres;
· unfit for BFA run of 2.4 kilometres.
As regards the CFA forced march of 10 kilometres, he said that he had not “physically done one in probably about three years, four years, five years” but he acknowledged that he had been assessed as capable of doing it as recently as January 2006.
25. In re-examination the applicant said that he can do the 10-kilometre march, but that it causes him “great pain”. Asked what he meant by saying that he “can do it”, he responded:
“Oh, I initially will just grit my teeth and I’ll push through whatever pain I’ve got to achieve the mark.”
The evidence of Mr B Slinger
26. Mr Slinger has practised as an orthopaedic surgeon since 1974. He confirmed that he saw the applicant on 19 July 2005 and that he provided a report, dated 25 July 2005, to the applicant’s solicitors. That report relevantly states:
“…
LEFT KNEE
HISTORY:
I confirm that his symptoms about the knee commenced in 1996 whilst running down a hill, those symptoms localised to the lateral aspect of the patella, he was referred for physiotherapy, which improved those symptoms.
In 1997 he had a further injury at rugby, on that occasion symptoms were localised to the medial aspect of the knee.
Arthroscopic treatment was undertaken by Mr Bruce on 20 February 1998, the findings being of a small tear of the lateral meniscus, which was excised with partial meniscectomy, in association with a grade I/II chondromalacia of the patella, for which a chondroplasty was performed.
Following that surgery symptoms improved, however, by the end of 1998 symptoms had increased, he was referred to an exercise programme by Mr Baddeley and physiotherapy, which again improved symptoms, however, in 1999 symptoms increased to a point where arthroscopic surgery was again performed, specifically on the 9 April 1999, with a pre-operative assessment of a medial meniscal tear.
The operative findings were of a normal medial meniscus with tessellation of the medial femoral condyle, a degenerative tear of the mid third of the lateral meniscus and grade II chondromalacia. The surgery performed was that of a partial lateral meniscectomy and a chondroplasty of the patella.
Symptoms again improved, however, the outpatient notes of August 2000 indicated increase of pain in the lateral aspect, again in 2002, and on those two occasions he was again referred to a programme of exercise with physiotherapy, which again improved, but did not resolve symptoms.
PRESENT:
Pain persists about the anterior aspect of the left knee, notable when kneeling, particularly on concrete or uneven ground, whilst squatting and crouching are also associated with discomfort, but less severe.
When negotiating stairs he experiences instability about the knee, after negotiating repetitively 20 to 30 stairs up and down, the knee feels weak, and when walking, he experiences symptoms of sudden giving way.
In the event that he maintains the knee in one position for any length of time, as when sitting to drive, that is associated with discomfort and stiffness, similarly when sitting cross-legged with the left knee flexed this produces identical symptoms, and when turning to the right, taking off from the left foot, the knee appears ‘loose’ as if it is about to ‘dislocate’, with pain and a ‘popping’ sensation.
Walking tolerance is said to be five to six kilometres, running is restricted, as he instanced when performing 2.4km defence standard exercise based fitness, he was not able to complete that run in the required time.
Cycling for any distance is associated with pain about the medial aspect, does not take part in any sporting activity, noting he is not keen to golf, and swimming is restricted because of symptoms about the shoulder.
I confirmed with him that symptoms, as detailed in the preceding, occur about the anterior aspect of the knee, with the exception of pain when turning to the right and on that occasion he experiences pain about the anterior and medial aspect.
EXAMINATION:
To examination of the left knee there was minor wasting of the vastus modiolus component of the quadriceps muscle, unassociated with any obvious effusion, whilst tenderness was localised to the anteromedial joint line and adjacent medial femoral condyle, as well as to the articular surface of the patella, and pain was reproduced at the patellofemoral joint on resisted quadriceps contraction, associated with prominent crepitus.
Movements were full, rotational stress was unremarkable, there was no evidence of instability and I confirmed with him that he was able to squat and crouch, as well as kneel.
RADIOLOGY
Patellofemoral Views both Knees (March 1999): Minimal lateral patellar subluxations, more marked on the right.
Both Knees (July 2000): Confirmed a possible minimal displacement of the patellae with no other abnormality.
Left Knee (July 2005): confirms minimal para-articular spurring at the upper medial tibia and at the lateral undersurface of the patella on the skyline image.
TO ANSWER YOUR QUESTIONS:
1. From what condition does the above named now suffer?
The condition is that of degenerative change at the left knee, specifically at the tibiofemoral joint compartments, as well as patella chondritis or chondromalacia patella.
2. Are the effects of the condition permanent?
The effects of the condition are permanent in that it is unlikely symptoms will improve, and I could not exclude the possibility of progression in the degenerative change…
…
7. If your report makes an assessment under Table 9.5 please indicate the nature of the objective tests used to assess difficulty with grades, steps and/or distances.
In respect to whole person impairment as assessed under the Guide, Table 9.5 this is in the order of 10% and I confirm that I have relied on the history in making that assessment as to the claimant’s disabilities with respect to standing, walking grades and steps and I did not make any direct observations as to that physical activity.
…” (T20, pp 52-55)
27. In his oral evidence-in-chief Mr Slinger confirmed that the applicant’s complaints of symptoms, including instability and giving way of the knee, were consistent with the condition of the applicant’s left knee as diagnosed by him. He also confirmed that, if the symptoms of instability and giving way were intermittent, that could be consistent with the condition as diagnosed. He added:
“It’s just a question of severity of symptoms and severity of the condition. There are occasions where he can walk reasonably comfortably, and other occasions when he’s performing a certain activity when it’s painful and gives way. It’s quite characteristic of this condition. Once it becomes severe, then of course, it becomes more constant… In his condition, I’d call his symptoms and restrictions moderate. So there are times when he’s a little more comfortable than others, but [there] are other times, when negotiating steps, stairs or slopes or distances, when it’s more painful and giving way.”
28. Mr Slinger said that he had seen Dr Powers’ reports of December 2005 and September 2006 and that the contents of those reports had not caused him to change the opinions expressed in his report. Mr Slinger was referred to the “field test” conducted by Dr Powers, as recorded in her report of December 2005, and he was asked whether he:
“consider(ed) it necessary to make Mr Henderson walk up 10 stairs in order to test whether he experienced intermittent giving way of his knee.”
He responded in the negative, and explained:
“Because, as you’ve just stated, it’s intermittent. There’s hardly any point asking a bloke to do a test of 10 steps; that’s neither here nor there. If he did a test over a period of 15 or 20 minutes, or if he walked a distance of three or four hundred metres, well, that would be more reasonable, but I’m afraid I don’t have those times or aid to do that in my practice. And it’s really a question of the co-operation of the patients… if someone says they have pain in their knee, they can quite easily demonstrate to me that it’s painful walking up or down steps, whether it’s painful or not. So it’s really of no value. It’s a test which can be manipulated by the patient or client… So unless I’ve got a patient who has a completely stiff knee or gross changes in the knee, watching him go up and down stairs is of no particular value…”
29. In cross-examination Mr Slinger acknowledged that the history which he took from the applicant, as recorded in his report, does not refer to the left knee condition being intermittent. He also acknowledged that that history, as recorded, makes no mention of grades or slopes, and he confirmed that the applicant did not volunteer any information about his having difficulty in respect of grades.
The evidence of Dr K Powers
30. Dr Powers has been a qualified medical practitioner since 1994 and is presently an occupational physician registrar. She confirmed that, at the behest of the respondent, she conducted an examination of the applicant and provided a report, dated 23 December 2005, to the respondent. She confirmed that she saw the applicant on two occasions, first, on 9 December 2005 for the purpose of taking a history from him, and, subsequently, on 22 December 2005 for the purpose of clinical examination.
31. Dr Powers’ report of 23 December 2005 relevantly states:
“…
HISTORY OF COMPENSABLE CONDITION:
·HEN0140-01 ‘Torn lateral meniscus of the left knee’
On 15 May 1996 Mr Henderson was doing physical training. He was running on a hill and his left foot slipped on the gravel. His knee twisted. He had instant severe pain in the knee. Mr Henderson limped to the regimental aid post. He was reviewed by a medic and a medical officer. The knee was iced. He was given light duties and exercises for the knee. The left knee continued to have pain occur when he was running after a few minutes. It was also aggravated when he walked over uneven ground. The knee would also feel unstable. Mr Henderson was restricted from running but he was allowed to play some sport. He felt that the knee never fully recovered.
In 1997 Mr Henderson was tackled around the legs whilst playing defence approved rugby. As he got up from the ground, on weight bearing, he found his left knee to be extremely painful. He hobbled off the field and at the regimental aid post the knee was iced. He was given light duties. The knee gave way repeatedly after this. The medical officer referred Mr Henderson to the Orthopaedic Surgeon, Mr Booth. X-ray left knee 20 February 1998 report by Dr Hobbs stated “normal appearances”. Symptoms were felt to warrant surgical review. On 20 February 1998, Mr Henderson underwent an arthroscopy. A small tear in the lateral meniscus was excised. It was also noted that he had grade I/II chondromalacia of the patella and had a chondroplasty (operation record). Following this procedure the left knee no longer gave way. There was pain triggered less often.
However by the end of 1998, symptoms increased and Mr Henderson was unable to walk even 10 metres due to severe pain. Again, the medical officer referred him to an Orthopaedic Surgeon and he was seen by Mr Baddeley. Letter by Mr Baddeley dated 21 December 1998 stated ‘…he did well following arthroscopy performed by Greg Booth in February of this year, but over the past 2 months the pain has recurred and all the features of patella femoral arthralgia. Examination confirmed a tight patello femoral joint with slight lateral subluxation and a positive Clark test.’ Mr Henderson had an exercise programme prescribed and physiotherapy. The pain was triggered less often.
In 1999, the knee began giving way again and on 9 April 1999 Mr Baddeley performed an arthroscopy. Letter by Mr Baddeley, dated 9 April 1999 stated, ‘this man underwent an EUA and arthroscopy of his left knee today and was found to have a normal medical (sic) meniscus with tessellation of the medial femoral condyle. He was also noted to have a degenerative tear of the mid third of the lateral meniscus which was excised down to a stable margin. The central portion of the central facet of the patella was found to have grade II chondromalacia which was treated with a chondroplasty. He should be significantly improved following this although I am concerned at tessellation of the medial femoral condyle as often this proceeds fairly rapidly to degenerative changes of that compartment.’
Letter by Mr Baddeley dated 5 August 1999 stated, ‘…this man is now 4 months after arthroscopic excision of an anterior horn tear of the left lateral meniscus. This does not appear to be producing any symptoms at this stage but he does continue to have significant medial compartment irritability where he is known to have a mark tessellation of the medial femoral condyle with numerous fissures running through the articular cartilage.’ The knee no longer gave way. X-ray both knees 25 July 2000 report by Dr Osborn stated ‘in axial patellae view there is possible minimal lateral placement of the patellae but no other more definite evidence patellae femoral joint disease. No other bony or soft tissue abnormality.’ Mr Henderson had physiotherapy. The pain improved but in August 2000 it increased again. The medical officer again referred him to Mr Baddeley. He had physiotherapy but the symptoms did not resolve. He has had no other treatment.
Mr Henderson was advised by his solicitors to be reviewed by orthopaedic surgeon Mr Slinger. Mr Slinger reported that under Table 9.5 Mr Henderson had 10% whole person impairment with regard to the left knee. Mr Slinger stated, ‘I did not make any direct observations as to that physical activity’. An X-ray left knee report by Dr Tidbury on 19 July 2005 stated, ‘…very minimal para articular spurring is noted at the upper medial tibia and at the lateral under surface of the patella on the skyline image.’
CURRENT STATUS:
Mr Henderson has noticed with regard to the left knee:
· A constant dull ache
· Pain if sitting cross legged
· Aggravation of pain after sitting for 5 minutes
· Pain on kneeling
· Pain on walking over uneven ground, however he can manage with great care
· Pain on squatting or crouching
· On stairs the knee feels unstable after approximately 20 stairs. There is aggravation of pain on ascent and descent however he said that he is still able to tackle stairs
· On slopes pain increases on descent, however he is able to walk on slopes
· Mr Henderson can only run slowly at a jog. The pain is aggravated after about 3km
· Mr Henderson walks approximately 5km before aggravation of pain in the knee
· Mr Henderson has pain aggravated on cycling
· Mr Henderson has given up touch football, basketball, volleyball and rugby because of knee pain
· His knee gives way at the end of a day of high exertion. This happens unpredictably about 2-3 times per week. He has so far been able to stop himself from falling over
· He doesn’t garden as he is unable to kneel
· He has not noticed aggravation when cleaning except if his foot is placed awkwardly
· The knee clicks and feels as if it subluxes
· He restricts squats and lunges in the gym. He also avoids some lower leg work in the gym
· After 10 minutes of standing the knee has an aggravation of pain
· He requires hourly breaks whilst driving due to some aggravation of knee pain.
…
CLINICAL EXAMINATION:
…
Mr Henderson could toe and heel walk normally. He was able to unilateral weight bear on either foot with normal balance. He planted full weight on his left foot as he got up on the step to get on the bed.
LEFT KNEE
MR HENDERSON
NORMAL
Flexion
140°
140°
Extension
0°
0°
Mr Henderson did comment that extension of the knee was painful.
Mr Henderson agreed to field testing and was aware he could cease at any point. On stairs of 45° in ascent and descent he had no obvious difficulty. However he did report some pain. On a slope of 30° in ascent and descent he had no obvious difficulties. Again, he had discomfort however. On a walk of approximately 200m, Mr Henderson had no obvious difficulty. He did report some pressure discomfort in the left knee.
ASSESSMENT:
Mr Henderson was assessed today using a goniometer to measure joint angles and on field test. He has had chronic rotator cuff symptomatology and torn lateral meniscus both on the left side.
Using the Australian Government Comcare Guide with regard to the agreed compensable condition ‘torn lateral meniscus of the left knee’, Mr Henderson has a 0% whole person impairment based on Table 9.2 Lower extremity as he had full range of movement of the left knee as demonstrated with goniometer measurement. Under Table 9.5 Limb function lower limb, Mr Henderson had (as demonstrated by field test) a 0% whole person impairment. He had no obvious difficulty with slope, stairs or walk. However he did report pain and discomfort during the testing.
…”
32. In examination-in-chief Dr Powers was asked whether the applicant had given her a history of his knee giving way intermittently. She said that he had not, and added:
“I asked about giving way, and he didn’t describe it in relation to stairs and steps... He didn’t describe it on slopes. He only described it as happening at the end of a day of high exertion, which fitted with the other history he’d given of being an industrial paramedic, where you might have to work over uneven terrain, slopes, to be able to bring multiple – perhaps multiple people out in an emergency.”
33. As regards the “field test” activities performed by the applicant under the observation of Dr Powers on 22 December 2005, Dr Powers said that:
· the applicant descended 10-12 steps and then turned around and ascended those steps, and he did so at normal speed and without any hesitation; his gait pattern was normal, his feet were planted strongly, and equally, on the stairs, and there was no reliance on the rail or wall adjacent to the stairs;
· the applicant walked up a slope of 30 degrees, and then walked down that slope, at normal speed, with a normal gait pattern, no limp, and a strong equal foot plant;
· she and the applicant together then walked a distance of approximately 200 metres, and the applicant walked without any difficulty or irregularity in speed or gait pattern, although he reported some “pressure discomfort” in his left knee at about the half-way point of the walk.
34. Dr Powers also confirmed that, at the request of the respondent’s solicitors, she prepared a further report dated 8 September 2006. That report, which was tendered in evidence by the respondent (Exhibit R2), states:
“…
I carefully reviewed all the documents provided to me and also your letters dated 31 August 2006 and 8 September 2006.
In answer to your specific questions:
7.Once you have reviewed the documents enclosed, please address the following questions:
I reviewed the documents that were couriered to me in their entirety.
7.1 Having reviewed all of the documents, please state whether or not you would change any of the contents of your report dated 23 December 2005. If so, please state which changes you would like to make.
After reviewing all of the documents, I did not see any need to change the contents of my report dated 23 December 2005.
7.2 Please confirm that your assessment of Mr Henderson utilised objective tools and methods and your medical opinion was based on objective findings.
I assessed Mr Henderson utilising objective tools and methods including goniometer to measure joint angle and field test. My opinion was based on those objective findings.
…
7.4Having reviewed all of the documents, please state whether you continue to be of the opinion that Mr Henderson suffers from a 0% permanent impairment under Tables 9.2 and 9.5 of the Comcare Guide. If so, please provide reasons.
Having reviewed all of the documents, I am of the opinion that the 0% whole person impairments under Tables 9.2 and 9.5 of the Australian Government Comcare Guide, made in my report of the 23rd December 2005 were appropriate at that time.
My assessment was based on the history that was given to me, on the documents that were provided by MCRS, on my clinical findings as well as on a field test.
In an unsigned letter apparently by Mr Henderson, it is stated (I have selected some points), ‘For no apparent reason my knee gives way, this I have experienced while walking on flat ground, undulating ground, hilly ground and stairs… The following day after seeing Dr Power my knee gave way whilst I was ascending a steep staircase of approximately 30 stairs… On the 25 January 2006, whilst walking along St George’s Terrace my knee gave way… February 2006… approximately 20m on the track I had to stop… February 2006 whilst at the gym walking briskly on the treadmill my knee gave way causing me to grab the handrails… March 2006 I had to stop on a set of stairs until my knee pain subsided… April 2006… a sensation that felt as though my kneecap had moved out of its groove and then slipped back into place…’ It was also stated, ‘when using stairs where possible, I tend to slow down and rely on the handrails, wall and fences for support to steady myself in case the knee does give way.’
This is in contrast to the examination recorded under field testing in my report of the 23rd December 2005. Also in my report of the 23rd December 2005 from history taking I recorded that, ‘Mr Henderson can only run slowly at a jog. The pain is aggravated after about 3km. Mr Henderson walks approximately 5km before aggravation of pain in the knee… His knee gives way after a day of high exertion. This happens unpredictably 2-3 times per week.’
Mr Henderson’s latest letters therefore record further new information about pain and knee giving way and it may be that his condition may have deteriorated further since he was last assessed by me. It may be that a further orthopaedic opinion may be necessary to assess whether any further deterioration has occurred. I do not believe it is appropriate for me to comment on any new whole person impairment without further imaging or orthopaedic advice.
7.5 Please state whether the limitations, difficulties, immobility and restrictions claimed by Mr Henderson in his statement are consistent with your objective testing and observation of Mr Henderson at the time of the examination.
Mr Henderson has had tears of the lateral meniscus found at arthroscopy on the 20 February 1998 and the 9 April 1999. These tears were excised. He also has had tessellation of the medial femoral condyle and chondromalacia patellae. He has had degenerative change diagnosed at the tibial femoral joint compartments. The limitations, difficulties, immobility and restrictions claimed by Mr Henderson in his statement appear to have progressed since my objective testing and observation at the time of my examination. I believe that an orthopaedic opinion as to the underlying reason for this may be useful.
7.6 Dr Slinger, Spinal Surgeon, provided a report on 25 July 2005, in which he assessed Mr Henderson as suffering 10% whole person impairment under Table 9.5 of the Comcare Guide. He reported that:
Pain persists about the anterior aspect of the left knee, notable when kneeling, particularly on concrete or uneven ground, whilst squatting and crouching are also associated with discomfort, but less severe. When negotiating stairs, he experiences instability about the knee, after negotiating repetitively 20 to 30 stairs up and down, the knee feels weak and when walking he experiences symptoms of sudden giving way. Walking is said to be 5 to 6km, running is restricted as he instanced when performing 2.4km defence standard exercise based fitness, he was not able to complete that run in the required time.
Dr Slinger noted that he ‘relied on the history in making that assessment as to the claimant’s disabilities with respect to standing, walking, grades and steps and I did not make any direct observations as to the physical activity’.
Please state:
a) Whether in your opinion, based on the symptoms given to Dr Slinger by Mr Henderson, an assessment of 10% is warranted. Please state reasons.
It is difficult to give advice on this since the assessment of impairment is based not only on the symptoms but also on the clinical examination and where possible on objective findings such as a field test. Based solely on the symptoms which have been given to Dr Slinger, I feel that a 10% whole person impairment may have been indicated. However, I have to point out that Dr Slinger himself clearly makes the point that he did not make any direct observations as to the physical activity.
b) Your objective findings and the tools used to obtain those findings.
My objective findings were that there was no obvious difficulty on field test of ‘stairs of 45° in ascent and descent’ or ‘On a slope of 30° in ascent and descent’ after field test, as recorded in my report of the 23 December 2005. Also the left knee had full range of motion of 140° flexion and 0° extension as measured with goniometer.
c) Whether your objective testing and observations of Mr Henderson support the symptoms given to Dr Slinger by Mr Henderson.
The objective testing did not support the symptoms as reported to Mr Slinger.
…”
35. In cross-examination Dr Powers was questioned at length about the “field tests” which she arranged for the applicant to undergo on 22 December 2005, and it was put to her that they were “of limited value” in confirming whether or not the applicant has the knee problems of which he complained. Dr Powers disagreed with that proposition and expressed the opinion that the tests were valuable in that they provided objective evidence to be considered together with the history given by the applicant.
36. Dr Powers was also questioned about the contents of the applicant’s statement of 13 July 2006 (Exhibit A1) to which she referred in answer to question 7.4 in her report of 8 September 2006 (see paragraph 34 above). She said that that statement included “new information”, as compared with the history given to her by the applicant in December 2005. She agreed that if (as stated in that statement) he has experienced his knee giving way, for no apparent reason, “whilst walking on flat ground, undulating ground, hilly ground and stairs”, his knee problem was probably worse than she understood it to be when she examined him.
37. In re-examination Dr Powers confirmed that she adhered to the following view expressed in her report of 8 September 2006:
“The limitations, difficulties, immobility and restrictions claimed by Mr Henderson in his statement appear to have progressed since my objective testing and observation at the time of my examination. I believe that an orthopaedic opinion as to the underlying reason for this may be useful.”
Analysis
Matters not in dispute
38. It is common ground that:
· the applicant’s left knee condition constitutes an “injury” within the meaning, and for the purposes, of s 14 of the SRC Act; and
· that injury has resulted in a “permanent impairment” within the meaning, and for the purposes, of s 24 of the SRC Act.
39. It is also common ground that, under table 9.2 in the approved Guide, the degree of permanent impairment of the applicant resulting from his left knee injury is 0%. The Tribunal agrees with that proposition, and so finds, because, on the basis of the uncontradicted medical evidence, the Tribunal finds that the applicant has normal range – that is, no loss – of movement of his left knee joint.
The matter to be determined
40. In Whittaker v Comcare (1998) 86 FCR 532 the Federal Court of Australia (Full Court) held that, where both table 9.2 and table 9.5 in the approved Guide are applicable, and the application of one of those tables would result in a determination of a higher degree of permanent impairment than the application of the other table, the table whose application would result in a determination of a higher degree of permanent impairment – and would thereby yield a more favourable result to the employee – must be applied. The matter for the Tribunal’s determination is, therefore, whether the degree of permanent impairment of the applicant resulting from his left knee injury is 10%, or more, under table 9.5 in the approved Guide.
The application of table 9.5 in the approved Guide in the applicant’s case
41. In accordance with table 9.5 in the approved Guide, the degree of permanent impairment of an employee is 10% where the employee:
“Can rise to standing position and walk BUT has difficulty with grades and steps”.
In the present case it is common ground, and the Tribunal finds on the basis of the evidence before it, that the applicant “can rise to standing position and walk”, within the meaning of table 9.5. The parties are in dispute, however, as to whether the applicant “has difficulty with grades and steps”, within the meaning of table 9.5.
42. In Comcare v Moon (2003) 75 ALD 160 the Federal Court of Australia (Mansfield J) said (at 171):
“The term ‘difficulty’ in…table 9.5 is not a term of art, but carries its ordinary meaning: Comcare v Fiedler (2001) 115 FCR 328 at [22]; Whittaker v Comcare (1998) 86 FCR 532 at 538…”
In Comcare v Fiedler (2001) 115 FCR 328 the Federal Court of Australia, in interpreting the phrase “has difficulty with digital dexterity” in table 9.4 in the approved Guide (which relates to upper limb function), said that, in order to satisfy the description “has difficulty with digital dexterity” in table 9.4, “(s)omething more than minimal problems with digital dexterity is required”, but that, if a person “finds it troublesome or not easy to do tasks requiring digital dexterity”, that will satisfy that description (at 334).
43. In accordance with the abovementioned interpretation, it may be said that the applicant “has difficulty with grades and steps”, within the meaning of table 9.5 in the approved Guide, if he finds it “troublesome or not easy” to negotiate grades and steps, provided that negotiating grades and steps presents “something more than minimal problems” for him.
44. The Tribunal accepts that, for the purpose of determining whether the applicant “has difficulty with grades and steps”, within the meaning of table 9.5, regard must be had to the degree of pain which is experienced by him in negotiating grades and steps: Comcare v Moon (above) at 171.
Does the applicant have “difficulty with grades and steps”?
The medical evidence
45. The medical evidence before the Tribunal is in conflict in relation to this matter. Mr Slinger has opined that the degree of permanent impairment of the applicant resulting from his left knee injury is 10% under table 9.5 in the approved Guide (thereby necessarily opining that he does have “difficulty with grades and steps”), whereas Dr Powers has opined that the degree of permanent impairment under table 9.5 is “0%” (thereby necessarily opining that he does not have “difficulty with grades and steps”). The Tribunal notes, however, that table 9.5, unlike table 9.2, does not contain any gradations of impairment lower than 10%. Accordingly, where it is determined that the description applicable to a 10% degree of impairment in table 9.5 is not met, the appropriate assessment of the degree of the relevant impairment under table 9.5 is: less than 10%.
46. As regards Mr Slinger’s report of 25 July 2005, the Tribunal notes that:
· there is no mention in the record of the history given by the applicant that his left knee condition is intermittent;
· there are references in the record of the applicant’s history to his ability to negotiate stairs and to walk distances, but there is no reference to his ability to negotiate grades or slopes;
· in the course of his examination of the applicant, for the purpose of preparing his report, Mr Slinger did not conduct any objective testing of the applicant’s ability to negotiate steps or grades.
47. As regards Dr Powers’ report of 23 December 2005, the Tribunal notes that:
· there is no mention in the record of the history given by the applicant that his left knee condition is intermittent;
· the record of the applicant’s history contains references to his ability to negotiate stairs and slopes and to walk distances;
· in the course of her examination of the applicant, for the purpose of preparing her report, Dr Powers conducted “field testing” of the applicant’s ability to negotiate stairs of 45 degrees and a slope of 30 degrees, and to walk approximately 200 metres.
48. In the opinion of the Tribunal, having considered the abovementioned reports of Mr Slinger and Dr Powers and their oral evidence, Dr Powers took a more comprehensive history from the applicant, and conducted a more thorough examination of his left knee condition, than did Mr Slinger. The Tribunal accepts that the field testing conducted by Dr Powers is not, of itself, decisive as regards the applicant’s ability to negotiate grades and steps with, or without, difficulty, but the Tribunal agrees with Dr Powers that it, nevertheless, provides objective information of some value regarding that matter. Furthermore, it was, in the Tribunal’s opinion, reasonable for Dr Powers to place some reliance on that field testing for the purpose of formulating her opinion regarding the degree of the applicant’s permanent impairment because, from the comprehensive history she took from the applicant, she was given to understand that his left knee condition was constant, not intermittent. The Tribunal, moreover, accepts Dr Powers’ evidence that her opinion regarding the degree of the applicant’s permanent impairment was based not only on her clinical examination, including the field testing, but also on the history given to her by the applicant. The Tribunal also notes that Dr Powers’ evidence and opinions were tested in a lengthy, rigorous cross-examination and, in the Tribunal’s opinion, were not undermined by that cross-examination. Having regard to the abovementioned considerations, the Tribunal, notwithstanding Mr Slinger’s experience and expertise as an orthopaedic surgeon, attaches greater weight to the report and evidence of Dr Powers than it attaches to the report and evidence of Mr Slinger.
The applicant’s evidence
49. The applicant’s evidence before the Tribunal comprised his written statements of 30 January 2006, 13 July 2006 and 15 February 2007, and his oral evidence. It seems to the Tribunal, having considered the whole of that evidence, that there are some significant inconsistencies in that evidence.
50. The Tribunal notes the following apparent inconsistencies in the applicant’s evidence:
· in each of his written statements he stated that, by reason of his knee injury, he was “unable to continue playing touch football…”, yet in his oral evidence (in cross-examination) he acknowledged that since 1996 he had been playing “Army-organised” touch football about once per month, the last occasion being in July 2006, and he further acknowledged that the statement that he was “unable to continue playing touch football”, which appears in each of his abovementioned written statements, was untrue; the Tribunal also notes that, according to the abovementioned medical reports, he told Mr Slinger in July 2005 that he “does not take part in any sporting activity”, and he told Dr Powers in December 2005 that he “has given up touch football…because of knee pain”;
· in his written statement of 30 January 2006, in para 35 of his written statement of 15 February 2007, and in his oral evidence, he described the day on which he was examined by Dr Powers, namely, 22 December 2005, as a “good day”, yet in his written statements of 30 January 2006 and 13 July 2006 he referred to an incident on that very day in which, whilst ascending approximately 10 stairs, he had “a sharp increase in pain” and “had to use the hand rail for support and rest at the top of these stairs to allow the pain to subside” before he could continue walking;
· in his oral evidence he said that the lastmentioned incident occurred when he was going to Dr Powers’ office and he described it as merely “a bit of a problem”, yet in his statement of 13 July 2006 he included it in a list of recent “major examples…of significance” of knee problems which he had experienced; furthermore, he acknowledged in his oral evidence that he did not tell Dr Powers about that incident (which had occurred shortly before he saw her), and he was unable to explain why he did not mention it to her;
· in para 22 of his written statement of 15 February 2007 he stated that, as regards walking, his “absolute limit in distance” is about 5 kilometres – likewise, Mr Slinger recorded that his “walking tolerance” is 5-6 kilometres, and Dr Powers recorded that he “walks approximately 5 km before aggravation of pain in the knee”, and, in his oral evidence, he said that he walks from his house to the local railway station, and vice versa, a distance of “5 kilometres at least” each way – yet, in para 40 of his written statement of 15 February 2007, referring to the 200-metre walk he performed for Dr Powers on 22 December 2005 (which he, in para 35, described as a “good day” and which, in his oral evidence, he described as “a good day for me, for walking”) he stated that, on that occasion, even 200 metres “started to produce the sensation of pressure and discomfort” in his knee, and that he had no doubt that, if he had walked 2 kilometres on that day, he would have experienced “significant problems with [his] knee as pain increased…”.
51. The Tribunal notes that, in his written statement of 13 July 2006 and in his oral evidence, the applicant referred to various examples of incidents in which he experienced pain in his knee, or his knee “gave way” while negotiating stairs or while walking, which he said had occurred since he was examined by Dr Powers on 22 December 2005. The Tribunal also notes, however, that there is no medical or lay evidence before it corroborating or supporting the applicant’s evidence regarding any of those alleged incidents. There are, furthermore, additional matters in the evidence before the Tribunal which cause the Tribunal to have reservations regarding the reliability of the applicant’s evidence in relation to the severity of his left knee symptoms. Those matters include the following:
· since his discharge from the Army in late 2004/early 2005 (which, the Tribunal notes, was not on medical grounds), the applicant has been employed in various occupations (referred to in paragraph 19 above) whose duties appear to the Tribunal to be somewhat incompatible with the knee problems which he claims to have experienced and to continue to experience; yet there is no evidence before the Tribunal to indicate or suggest that the applicant was unable to perform, or had any difficulties in performing, the duties of any of those occupations, whether by reason of his left knee condition or otherwise;
· since his discharge from the Army he has been, and is presently, a member of the Army Reserves and, in that capacity, his current medical fitness assessment states that he is “fit for CFA in patrol order” (which includes a forced march of 10 kilometres) and fit to attempt a walk of 5 kilometres, but that he is “unfit for BFA run” of 2.4 kilometres.
52. Having observed the applicant give his evidence, and having regard to the whole of the evidence and to the considerations referred to in paragraphs 50-51 above, the Tribunal does not accept the applicant’s evidence regarding the severity of his left knee symptoms – in particular, his evidence regarding his intermittently experiencing a “sharp increase in pain” in his knee, and the “giving way” of his knee, in the circumstances described in his written statement of 13 July 2006 and in his oral evidence (see paragraphs 15-16 above). In the Tribunal’s opinion, the applicant has, at the very least, substantially exaggerated the nature and degree of the symptoms experienced by him in relation to his left knee.
Finding
53. Having regard to the whole of the evidence before it, the Tribunal is not satisfied that the applicant finds it “troublesome or not easy” (Comcare v Fiedler, at 334) to negotiate grades or steps. On the contrary, the Tribunal is satisfied that the applicant, notwithstanding the permanent impairment resulting from his left knee injury, is able to negotiate grades and steps without difficulty.
54. Accordingly, the Tribunal finds that the applicant does not have “difficulty with grades and steps” within the meaning of table 9.5 in the approved Guide and that, therefore, under table 9.5, the degree of permanent impairment of the applicant resulting from his left knee injury is less than 10%. It follows from that finding that, pursuant to s 24(7) of the SRC Act, compensation is not payable to the applicant under s 24 or s 27 in respect of his left knee injury.
Decision
55. For the above reasons, the Tribunal affirms the decision under review.
I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
Signed: ..................[Sgd Y Maker]........................
AssociateDates of Hearing 15, 16 February 2007
Date of Decision 28 March 2007
Counsel for the Applicant Mr G Droppert
Solicitor for the Applicant D'Arcys
Counsel for the Respondent Mr C Clarke
Solicitor for the Respondent Australian Government Solicitor
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