Humphreys and Military Rehabilitation and Compensation Commission (Compensation)
[2017] AATA 1368
•25 August 2017
Humphreys and Military Rehabilitation and Compensation Commission (Compensation) [2017] AATA 1368 (25 August 2017)
Division:VETERANS' APPEALS DIVISION
File Number: 2015/6388 and 2016/2315
Re:Mark Humphreys
APPLICANT
AndMilitary Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal:Senior Member J Sosso
Member Dr G Maynard
Date:25 August 2017
Place:Brisbane
The decision under review is set aside, and in substitution it is decided that the Applicant has a 20% WPI impairment to his right and left knees under Table 9.5 of the Guide.
.................................[Sgd].......................................
Senior Member J Sosso
CATCHWORDS
COMPENSATION – Military Compensation - whether the Applicant has a 20% impairment - where bilaterally accepted knee condition - assessment under Table 9 of the “Guide to the Assessment of the Degree of Permanent Impairment” Edition 2.1, Part 2 - the Applicant has a 20% WPI impairment to his right and left knees under Table 9.5 – decision set aside
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss. 4, 5A, 14, 24, 25, 27, 28
Military Rehabilitation and Compensation Act 2004
CASES
Bacic and Comcare [2008] AATA 465
Chang and Military Rehabilitation and Compensation Commission [2013] AATA 677
Comcare v Fiedler [2001] FCA 1810
Comcare v Lilley [2013] FAFC 121
Comcare v Moon [2003] FCA 569
Comcare v Ticsay (1992) 38 FCR 181
Fellowes v Military Rehabilitation and Compensation Commission (2009) 240 CLR 28
Whittaker v Comcare (1998) 86 FCR 532SECONDARY MATERIALS
Safety, Rehabilitation and Compensation Act 1988 – Guide to Assessment of the Degree of Permanent Impairment, Part 2 of Version 2.1, Tables 9.2, 9.5 and 9.7
REASONS FOR DECISION
Senior Member J Sosso
Member Dr G Maynard25 August 2017
INTRODUCTION
Mr Mark Humphreys (the Applicant) has applied to the Administrative Appeals Tribunal for review of two decisions of the Military Rehabilitation and Compensation Commission (the Respondent) in relation to his right knee condition (2015/6388) and his left knee condition (2016/2315).
The Applicant enlisted in the Royal Australian Navy on 5 March 1982 and was discharged in 2004 having attained the rank of Lieutenant Commander.
On 30 April 2002, the Applicant lodged a claim for rehabilitation and compensation in respect of a right knee condition. He claimed that he injured his knee in June 1990 while sailing a navy yacht in Sydney Harbour when he slipped “while executing a GYBE” – Exhibit 1 T4 pp. 20-21.
The Applicant was examined by Dr William Koch, Orthopaedic Surgeon, on 22 October 1990, who opined as follows – Exhibit 1 T5 p. 63, T7 p. 73:
“Thank you for referring this 32 year old submariner who twisted his right knee 4 months ago while sailing. Since then the knee has been locking and clicking as well as giving way.
Past History: He has had a few football injuries in the past.
Examination: He is tender over both joint lines, particularly the lateral. Movements are full and both Lachman’s Test, the jerk test, and the anterior drawer sign are normal.
Opinion: I feel that he has a torn right lateral meniscus and requires an arthroscopic meniscectomy. He tells me that x-rays were taken and these were normal.”
Following this examination, the Applicant underwent surgery. Dr Koch’s subsequent report, dated 14 November 1990, is as follows – Exhibit 1 T5 p. 62 T8 p. 74:
“I performed an arthroscopy on this man’s right knee at Rock Castle Hospital today.
At arthroscopy I found a large flap tear of the medial meniscus. A partial medial meniscectomy was performed. A medial shelf plica was removed. The lateral meniscus was intact.”
On 16 November 1990 the Medical Board of Survey noted that the Applicant had a right knee medial meniscus tear, and that his naval percentage of incapacity was 40%. The Board agreed with Dr Koch that submarine posting would further exacerbate the Applicant’s knee condition and that he should have some shore time before reporting to sea. The Board recommended that the Applicant be assigned a Category 7 for 3 months, and be retained on HMAS Platypus. The Board noted that the Applicant “sustained medial meniscus tear in 1982. This was exacerbated in June 1990 whilst sailing” – Exhibit 1 T5 pp. 59-60.
The Applicant was later the subject of another Report of the Medical Board of Survey. This report is dated 19 February 1991, and by this time the Board was of the view that the Applicant’s degree of incapacity was “nil” – Exhibit 1 T5 p. 70. The Board went on to make the following finding (p. 71):
“This member has now fully recovered from his operation. He is virtually asymptomatic and engages in all duties and sport as normal. He is fit Cat 1, but no football.”
The Applicant also agreed with this diagnosis (p.71):
“I feel that the operation was a success and that I’ve made a full recovery with only the slightest of pain if I jar the knee heavily. I’m now swimming and doing aerobics without any difficulty.”
In 2002 the Application lodged claims for compensation for lower back and right knee conditions – Exhibit 1 T 13 p. 116. The Commonwealth Department of Veterans’ Affairs (the Department) sought further information from the Applicant including details of the 1982 incident referred to above when he sustained a medial meniscus tear. In his reply of 15 September 2002, the Applicant provided the following information – Exhibit 1 T14 p. 119:
“As for the mention of a medial meniscus tear in 1982 it did not occur. The question asked ‘Have you injured your knee’. The only injury prior to 6/90 was bruising from playing Rugby Union for the RAN, but again I played weekly and there was not a significant injury prior to June 1990.”
On 9 October 2002 the Department admitted liability for the Applicant’s right knee condition, and accepted his version of events in both 1982 and 1990 – Exhibit 1 T15 p. 120:
“An examination of your medical documents prior to 6/90 confirms that there is no record of a significant right knee injury. In view of that I have decided to accept your explanation that the reference to a knee injury in 1982 is in error and that your major injury occurred in 6/90 while sailing.”
The Applicant lodged a lump sum compensation claim for permanent impairment in relation to his right knee – Exhibit 1 T17 p. 131. The Department required the Applicant to be examined by Dr Matthew Hislop – Exhibit 1 T19 p. 134. After examining the Applicant on 21 January 2004, Dr Hislop provided the following responses to the questions posed by the Department – pp. 78-80.
“1. Does the client suffer an impairment as the result of his compensable injury?
After consultation and examination, it is my medical opinion that Mr Humphreys does suffer an impairment, as per the relevant compensation tables, as a result of his compensable condition…
4a Stable permanent impairment (not expected to change in the foreseeable future).
Table 9.5 - 10% - There is objective evidence of difficulty in navigating steps and grades.
5. What tests were used to assess the client’s difficulty with grades, steps and distances?
Mr Humphreys was observed during the formal examination whilst performing activities such as squatting and rising in and out of a chair. He was then monitored whilst mobilising for approximately 50 metres distance on a flat surface in the hospital grounds. (During this time, he was specifically observed for any maladaptive gait pattern or antalgic nature to the gait).
Mr Humphreys was then observed navigating 15 stairs of approximately 15cm height. He was observed climbing down and up the stairs (i.e.30 steps in total) and was monitored for any objective manifest difficulty in mobilisation including particular reliance on the hand rail, obvious pain or discomfort, and evidence of the lower limb collapsing or giving way.
Finally, Mr Humphreys was followed whilst walking outside of the hospital along a footpath and on an uneven dirt path, (both of which have slight grades) for approximately 30 metres.”
The Department wrote to the Applicant initially on 24 March 2004 (and finally on 13 April 2004) and provided him with a copy of Dr Hislop’s report. The Department accepted that the Applicant suffered a 10% whole person impairment assessed under Comcare Table 9.5 and stated that the total compensation payable was $24,702.72, of which $13,087.57 was for impairment and $11,615.14 was for non-economic loss – Exhibit 1 T23 p. 143 and T24 p. 146.
On 27 April 2004 the Applicant lodged an additional claim for rehabilitation and compensation in respect to his left knee condition. The Department determined on
25 November 2004 that the Applicant suffered an aggravation of a disease to which his defence service contributed in a material degree, namely aggravation of the left proximal tibiofibular osteoarthritis, medial meniscus tear, left maltracking patella and chondromalacia patellae. So far as is relevant the Departmental letter stated – Exhibit 2 T34 pp. 201-202:
“Your enlistment medical documents show that you did not suffer from a left knee condition when you enlisted in 1982. You have attributed your condition to the physical training requirements of military service. You have provided various medical documents that show that you were treated for this condition from 1999 onwards.
Dr Phillip Vecchio has provided a report dated 1 November 2004, copy enclosed. Dr Vecchio has provided the above diagnosis and has stated that:
‘The objective evidence is that Mr Humphreys suffers from bilateral maltracking patellae and I note from his records that he does have slightly flat inverted/pronated feet. This would exacerbate his patellofemoral osteoarthrities (chondromalaciapatellae) and in view of the military sport played, particularly rugby, it would be sufficient grounds to attribute a significant portion of the aggravation of Mr Humphreys’ patellofemoral maltracking and subsequent chondromalacia patellae to military sport. Additionally, the meniscus tear identified arthroscopically was likely due to the fall at work. On the subject of the left proximal tibiofibular osteoarthritis, this is an unusual condition and is secondary to local trauma and/or inflammatory disease. One would require a direct traumatic hit to this area which could well have occurred during military sport. I am therefore comfortable in attributing the left knee patellofemoral chondromalacia patella, medial meniscal tear and left tibiofibular osteoarthritis to his military participation, to a significant degree.’
‘In my opinion, Mr Humphreys would have eventually suffered some degree of chondromalacia patellae, given that he has constitutional maltracking patellae and does have inverted/pronated feet. However, military activity would have exacerbated and aggravated the above conditions.
‘ADF activities contributed to causation of the conditions by (d) 21 to 50% and to the aggravation of the conditions by (d) 21 to 50%’.
Based on the above information, I am therefore satisfied that you(r) military service has contributed in a material degree to the aggravation of inherited and developmental conditions. Liability has been accepted and your file has been forwarded to the Permanent Impairment section for lump sum assessment.”
The Department wrote to the Applicant on 6 December 2004 stating that he did not suffer an impairment as a result of the accepted left knee condition. In forming this opinion reference was made to the assessment of Dr Vecchio who awarded the Applicant 0% impairment under both Tables 9.2 and 9.5. Consequently, no lump sum compensation payment was awarded – Exhibit 2 T35 pp. 203-204.
On 21 February 2014 the Applicant’s solicitors (Watt & Severin) wrote to the Department requesting a reassessment of his entitlement to payment of additional permanent impairment compensation with respect to both his left and right knee conditions – Exhibit 2 T40 p. 222. The solicitors stated (p. 223):
“As might be expected over a 10 year period there has been a deterioration in our client’s symptomatology relating to both accepted knees and as such Mr Humphreys seeks investigation in regard to reassessment of permanent impairment entitlement relating to the left and right knees.”
With respect to the left knee condition the letter outlined the following claimed deterioration in the Applicant’s condition between 2004 and 2014 (pp.223-224):
“He now reports constant pain and reports that perhaps on a fortnightly basis he suffers severe pain. He reports pain being both spontaneous and on activity. If he attempts to walk moderate distances or to do leg strengthening exercises pain becomes sharp and localised. He reports using Panadol and Nurofen and for relief he sits down and takes the weight off his knee. In more recent times he has utilised Panadeine Forte.
In terms of treatment and relief he resorts to pain medication and simply lying down.
In terms of restriction on mobility he states that there is no running, no small boat sailing or rowing, limited walking and limited fitness activities, no cycling.
He believes that he has lost some loss of range of movement in the left knee joint and he also believes that whilst he can rise to a standing position and walk, he has manifest difficulties in negotiating grades, steps and distances.”
The solicitors also outlined a claimed deterioration in his right knee condition since 2004, but went to state that the Applicant believed that his left knee condition was now worse than his right knee condition (p. 224). The solicitors further stated that the Applicant had been examined by Associate Professor Dr David Morgan, Orthopaedic Surgeon, on
28 May 2013. A copy of Dr Morgan’s medical report was supplied to the Department.
Dr Morgan set out in summary form his expert opinion on the nature and extent of the Applicant’s condition – Exhibit 1 T10 p. 87:
·
Mr Humphreys suffers with bilateral knee disease referable to the patellofemoral and medial compartments and also to the lateral side of the joint on the left side.“
· He is exhibiting losses of 10% whole person function according to Table 9.2 in both knee joints and losses of 20% of whole person function according to Table 9.5 in both knee joints.
· His future remunerative prospects have been narrowed to sedentary activities.
· He will note a reduction in his ability to engage in bipedal recreational pursuits.
· He would benefit from an ongoing non-operative therapeutic regimen.
· He is capable of an independent sedentary domestic existence.”
Dr Morgan provided the following symptoms of the Applicant’s left and right knee conditions (p. 90):
“1. The Right Knee
He complained of a constant low grade ache in the region of the right knee joint, especially over the medial joint line and posteriorly. It was made worse by standing and walking. He said that he could not run for more than 100 metres and noted episodic swelling and giving way. He was not aware of any true locking. He thought that he could probably walk between three and five kilometres. He was able to walk from his boat moored at the Royal Yacht Squadron to the nearby Manly village. He could then walk back. He had difficulties with ascending and descending steps and slopes, squatting and kneeling.
2. The Left Knee
He said that the symptoms in the left knee were worse than those in the right knee. They were of a similar type but more intense. He sometimes noted a sharp, sudden pain in the left knee. It typically localised to the lateral side of the joint and over the lateral aspect of the proximal tibiofibular articulation. Steps, slopes, squatting and kneeling were again difficult.”
On 29 July 2014 a delegate of the Respondent decided that no additional lump sum permanent impairment compensation and non-economic loss compensation could be made under sections 24, 25 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) in respect of the right knee condition – Exhibit 1 T 31 pp. 169-170. In reaching this conclusion the delegate referred to Dr Morgan’s view that an impairment rating of 20% under table 9.5 was appropriate, but then highlighted suggested contradictions in his report particularly the fact that Dr Morgan noted that the Applicant said he could walk between three and five kilometres. The delegate concluded that the Applicant did not have a sufficient difficulty in walking distances that would warrant the assignment of 20% impairment (p. 170).
On 26 August 2014 a delegate of the Respondent determined that the Applicant had suffered a whole person permanent impairment as a result of his left knee condition of 10% under Table 9.2.
Watt & Severin Solicitors, wrote to the Respondent on 16 January 2015 requesting a reconsideration of the Determination of 29 July 2014 which concerned the Applicant’s right knee condition – Exhibit 1 T 32 p. 171. The letter outlined at length the reports of
Dr Hislop and Dr Morgan and set out reasons as to why the assignment of a 20% impairment rating was preferable. However, in addition to those contentions, a further medical report was presented to the Respondent. The Applicant legal representatives had sought a new medical report from Dr David Hayes, an Orthopaedic Surgeon.
Dr Hayes medical report, dated 27 October 2014, though short in length deals directly and relevantly with the Applicants knee condition. He opined as follows – Exhibit 1 T 32 pp. 179-180:
“Mr Humphreys has, as stated, a bilaterally accepted knee condition. He lives on a cruiser boat at Manly at the Royal Queensland Yacht Club. He no longer participates in active racing as this places a load and strain on his knee. He states that he would not be able to live in a normal house due to having to negotiate stairs and grades. He does not have steep steps on his boat and hence has adjusted and modified his lifestyle and living circumstances to accommodate his knees. He walks approximately 1 klm from the yacht club to the Manly shops if he needs to shop. He finds this to be a significant struggle and will sit and have a cup of coffee and rest for some time before attempting to walk back. He actively tries to avoid hills and slopes.
CURRENT SYMPTOMATOLOGY
He experiences pain on a daily basis. The pain is exacerbated by uneven ground, hills and steps and prolonged walking. He does not experience much night pain because he modifies his activity accordingly. He tries to avoid analgesics but if he does require analgesics, he uses occasional Panadol or Brufen.
CLINICAL EXAMINATION
Clinical examination revealed man with an antalgic gait predominantly favouring the left leg with a slight external positive foot progression angle noticed on the left. He pushes himself out of a chair using his arms to avoid loading his knees. He stands with normal alignment to his limbs, there is audible crepitus with knee flexion and he was unable to perform a squat. Both knees demonstrated full extension. There was no effusion. On the right he was able to flex to 105° and the left 110°.
Functional capacity was assessed by observing him walk a distance of 50 metres. At that stage he was noted to have an obvious limp favoured toward the left leg. Mr Humphreys said he could walk further, but that it would increase his pain. I then witnessed him walk up and down 14 stairs; in both he had a slower than normal cadence and uses his right hand for balance on both ascending and descending the stairs….
Left Knee Condition
1The condition is permanent in nature.
2Mr Humphreys does suffer from an impairment in regard to the accepted left knee condition.
3Using Comcare Table 9.5 there is a 20% impairment in relation to the left knee condition alone.
Right Knee Condition
1The right knee condition is permanent in nature.
2Yes. Mr Humphreys suffers from an impairment of his accepted right knee condition.
3There is a 20% impairment level of function according to Table 9.5.”
On 17 February 2015 the Applicant’s solicitors wrote to the Respondent requesting a reconsideration of the Determination of 26 August 2014, which related to the left knee condition – Exhibit 2 T 50 pp. 278-279. Following receipt of this request a delegate of the Respondent wrote to Dr Hayes seeking clarification about the level of difficulty the Applicant has in walking a distance in relation to someone of similar age and just an increase in pain – Exhibit 2 T 52 pp. 285-286.
Dr Hayes replied by letter dated 10 March 2015 and said – Exhibit 1 T 12 pp. 114-115:
“I note that most of what we are discussing is subjective rather than being able to be measured by objective parameter and I am fully familiar with Table 9.5. Perhaps we have now opened up a far more detailed picture than was painted to me by the patient.
For example, when Mr Humphreys states that he can walk from his boat to the local village and back, the questions I have are
·what is the terrain he is covering?
·what is the foot wear he is wearing?
·does he walk this distance without a break?
·does he walk this distance in short bursts with period rests as is the case with mechanical pain(?)
·what is his motivation to go to the village – does he require food, alcohol or other which may be motivating factors which override his pain(?)
I am happy to get a direct answer from Mr Humphreys on these matters if you require it, otherwise I do not believe that a simple statement that he can walk a round trip of two kilometres or that he could ‘probably’ walk between three and five kilometres which is a very subjective statement can be considered adequate.”
Two delegates of the Respondent were tasked with the reconsideration requests. So far as the right knee condition, the relevant delegate made her decision on 19 October 2015. In affirming the determination under the review the delegate said – Exhibit 1 T38 p.205:
“I note that your client does walk to the local shops and that he also lives on a moored boat. I further note that your client ascended and descended the stairs and that he also undertakes boat restoration.
It is noted that pain and difficulty are not synonymous and that the presence of pain in itself is not relevant to impairment for the purpose of assessment and is catered for in the NEL component of the benefit.
Having regard to all of the above, I am not satisfied that your client’s right knee condition has resulted in the minimum required threshold increase of 10%.”
On 10 March 2016 the other delegate delivered her decision to affirm the Determination of 26 August 2014 in relation to the Applicant’s left knee condition - Exhibit 2 T 57 p. 298. In reaching this decision the delegate, after dealing at length with the jurisprudence on “difficulty” and “pain” said (at 302):
“Whilst I note that Dr Morgan and Dr Hayes both assessed 20% whole person impairment under Table 9.5, it still remains for me to be reasonably satisfied that you have difficulty with grades, steps and distances in the manner described in the cases outlined above.
Relevantly, I note that you had previously indicated that you were able to walk 3 to 5 kilometres and that you walk to and from your local shops in Manly, about 1 kilometre away from your home. Whilst I acknowledge that you indicated to
Dr Hayes that you need to take a rest part way through due to pain, I do not consider that this demonstrates difficulty.
There also appears to be a discrepancy between Dr Morgan and Dr Hayes’ observation of your gait when walking. Dr Morgan described observing you ‘walk briskly and relatively normally’, whereas Dr Hayes said you had an obvious limp favouring the left side. In any event, given your capacity to walk distances, I am not satisfied that your condition meets the description required for an assessment of 20% whole person impairment.”
The Applicant made application to the Tribunal for a review of the decision of the Respondent of 19 October 2015 on 2 December 2015 – Exhibit 1 T 2 pp. 7 – 8.
The Applicant subsequently made application to the Tribunal for a review of the decision of the Respondent of 10 March 2016 on 3 May 2016 – Exhibit 2 T 2 pp. 7 - 8.
Subsequent to these applications the Respondent obtained further medical evidence. The Tribunal was presented with three medical reports from Associate Professor Peter Steadman, Orthopaedic Surgeon.
The first report of Dr Steadman is dated 19 July 2016 – Exhibit 6.
Under the heading “CLINICAL EXAMINATION”, Dr Steadman made these observations of the Applicant – Exhibit 6 p. 4:
“Objectively, I observed him going up and down stairs and he needed to use the railing. He was able to hop out of a chair without any arms, independently. He did not bring a walking stick with him today…”
Dr Steadman arranged for the Applicant to have new x-rays, and made these observations on the radiology – Exhibit 6 p. 4:
“Very mild medial compartment arthritis with no substantial progression. Ie this is where the situation changes as my clinical impression is that it is unlikely that his knees have functionally deteriorated further to the reported clinical extent where the problem then becomes more subjective as does the issue of interpretation of the tables.”
The key finding of Dr Steadman was that the radiology did not correlate with the pain and related symptoms expressed by the Applicant. Dr Steadman summarised his findings as follows (p.4):
“Mark Humphreys suffers from bilateral knee arthritis. Arthritis is a progressive condition. There would be no doubt that the right knee where the medial meniscectomy has partially occurred would have a relationship to the injury while the left knee injury largely, although it is accepted, has a more nebulous onset. Because arthritis is a progressive condition, as time progresses his impairment will likely increase until he ultimately ends up having a knee replacement.
I arranged for x-rays to assess this as it has been sometime between radiological investigations. Most of the claim today is really supported by the subjective interpretation of the tables. In my opinion, the most recent x-rays show a discrepancy between the subjective and the objective information now available in contrast to normal clinical practice.”
In response to a question as to the Applicant’s level of impairment, Dr Steadman stated (pp. 5-6):
“Having regard to Table 9.2, he is in 10% category for both joints due to the fact that he has 0 to 100 degrees, meaning that he has lost less than half of the normal range of his knee joints.
In relation to Table 9.5, which is functional and more subjective, which is where it becomes troublesome in contrast to the x-rays, I was able to observe him standing. He was able to walk up and down the stairs using the railing and he was observed walking up a gentle grade on Wickham Terrace a distance of 50 metres indicating that he subjectively had trouble with grades and steps and distances.
From a point of view of the objective part of that assessment, the x-rays show only very mild medial compartment arthritis and certainly no substantial progression over a long period of time.
Having seen the recent x-rays, it would therefore concern me that there is a self-fulfilling subjective nature to the historical information provided in regard to use of and application of table interpretation.”
Dr Steadman opined (p. 7) that the “subjective findings” of the Applicant would place him in the 20% - 30% category of whole person impairment.
Dr Steadman expanded on his initial findings in a supplementary medical report dated
19 October 2016 – Exhibit 7. The report focused on the correct interpretation of radiological evidence. Dr Steadman observed (p. 5):
“Although the radiological x-rays are not necessarily a predictor of function, in this case the x-rays failed to show severe arthritis.”
Dr Steadman also dealt with the Applicant’s claims of suffering difficulties and experiencing pain when trying to negotiate any relevant disturbances (p. 6):
“I also undertook and observed him with functional testing in the chair and while he was traversing the stairs. These are all expected tests which are performed as part of military impairment to assess for the parameters in the disability scales. All of this information in essence presents a high level of subjectivity. I accept that he may have all of these difficulties but the recent plain x-rays of his knees do not support a clinical correlation with his articulated disability.”
On the issue of the correlation between the Applicant’s physical condition and levels of pain being experienced, Dr Steadman said (p. 6):
“I think pain is a very personal experience for most patients. I think there appears to be a misinterpretation between the issue of the accusation of dishonesty and the belief of the symptomatology he is experiencing. I accept that he is experiencing symptoms in his knees.
Although functional disability is important and represents the criteria by which the tables are assessed, in essence they must correlate with the radiological findings.”
Dr Morgan was provided with copies of both of Dr Steadman’s reports by the Respondent’s solicitors and asked a series of questions. His reply is contained in a report dated 17 November 2016 – Exhibit 5.
In responding in the affirmative as to whether he had regard to any radiological evidence when he undertook his assessment in 2013, Dr Morgan replied in the affirmative (p.2):
“I did take notice of the radiographic evidence. The radiographs were limited to those that I viewed personally and the reports that were contained in the provided documentation.
It should be noted that the assessments made using Tables 9.2 and 9.5, in the relevant sections that pertained, did not demand radiographic input. For example, Table 9.2 refers to radiographic changes only in the 0% impairment section and Table 9.5 makes no reference to radiographic examinations at all.
Even if radiographs from the distant past had been made available, my impairment assessment would not have changed.”
Dr Morgan also disagreed with Dr Steadman’s conclusions from the radiological evidence (p.3):
“Stated simply, we treat patients and not radiographs. Some patients may have little or no discomfort yet have radiographs which are extremely impressive in terms of their degenerative demise. At the opposite end of the spectrum, some patients complain of extreme pain and have little radiographic evidence to support it. Most patients are near the middle of that histographic spectrum. Whilst I am not able to attest to the genuineness of Mr Humphrey’s symptomatic complaints, the lack of confirmatory radiographic evidence neither confirms nor excludes his genuineness.”
Finally, Dr Steadman was provided with a copy of Dr Morgan’s report and asked a series of further questions. Dr Steadman’s final report is dated 20 February 2017 – Exhibit 8. Whilst agreeing with some of Dr Morgan’s observations, Dr Steadman maintained his view that he did not consider (p.2): “tibiofibular arthritis of the mild degree noted radiologically will correlate with the high degree of immobility reported subjectively.”
Dr Steadman also re-iterated that if subjective reporting was considered the Applicant would fall within the 20% category for both the right and left knees – pp. 3 – 4.
Dr Hayes was also provided with copies of each of the reports of Dr Steadman and the recent report of Dr Morgan. Dr Hayes remained satisfied that the Applicant’s functional impairment of 20% was correct – Exhibit 3.
The Tribunal was also presented with a written statement of the Applicant dated
16 September 2016 – Exhibit 4. The Applicant specifically addressed in this document some of the findings and factual observations outlined in the medical reports referred to above. He specifically denied the comments in Dr Steadman’s report that he was able to hop out of a chair without arms independently (p.2). He went on to state (p. 3):
“My knees have deteriorated over the last 20 to 25 years and I say this for the following reasons:
Dr Morgan asked me how far I could walk and I replied, ‘I used to be able to walk from the Yacht Club to Manly Village Shopping Centre’. This is a distance of approximately 1.2 kms. Dr Steadman however, did not ask me how far I could walk and he did not at any time ask me as to what difficulties I suffered or what pain I suffered when trying to negotiate any relevant distances, and he made no reference to the journey from the Yacht Club to Manly Village Shopping Centre. Around 2013 I stopped walking from the Yacht Club to the Manly Village because it was simply too difficult to do so. Since the end of 2013 I always drive the distance. When I last walked the distance towards the end of 2013 the terrain between the Yacht Club and the Manly Village was basically flat with two small gentle rises. To complete the walk which took me quite a deal of time, I would normally stop once or twice each way due to pain and stiffness in my knees and I would have a rest, have a coffee and have a significant delay before I tackled the return journey. The reason I ceased walking this distance was due to increased levels and frequency of pain in my knees…
Due to the continuing deterioration and degradation of my knees I have not sailed on a yacht competitively since about 2008 despite sailing being a sport I pursued and loved all my life. I have also modified my boat such that I no longer have to step up onto the deck to gain access and have a maximum of two steps inside the boat. Additionally, I have modified the boat to enable me to operate her from the helm by installing a remote anchor winch and anchor wash controls at the helm position. This enables me to operate the boat without having to be on deck. My ability to sail recreationally has also drastically reduced since about 2008…
I no longer use rail transport to visit my medical specialist on Wickham Terrace as the steps up from Central Station would result in my not attaining the top of the steps and hence the appointment. The last time I used rail transport to my specialist was in late 2011.”
Both applications were heard by the Tribunal on 27 and 28 June 2017 in Brisbane. The Applicant was represented by Mr Allan Anforth of Counsel instructed by
Mr James Pattison of Watt & Severin Solicitors. The Respondent was represented by
Mr Charles Clark of Counsel instructed by Dr Megan Brooks of Moray & Agnew Lawyers. The Applicant gave evidence and was cross-examined. In addition, evidence was given by Dr Morgan and Associate Professor Dr Peter Steadman.
The Applicant was vigorously cross-examined by Mr Clark. However, the Applicant’s oral evidence was consistent with the written statement quoted above. In particular, the Applicant answered questions on the timing of his changed walking habits consistently and without hesitation.
Having observed the Applicant give evidence and having also carefully considered all the material presented, we found his account of the difficulty he suffers in walking distances and negotiating grades and steps to be truthful and reliable.
ISSUES
There are two issues to be determined, namely whether the Applicant has a 20% impairment:
(a)to his right knee under Table 9.5 of Part 2 of Version 2.1 of the Safety, Rehabilitation and Compensation Act 1988 – Guide to Assessment of the Degree of Permanent Impairment (the Guide); and
(b)to his left knee under Table 9.5 of the Guide.
CONSIDERATION
Introduction
The Respondent accepts liability for the Applicant’s right and left knee conditions, and further accepts that the medical evidence supports a finding that the Applicant suffers from a permanent impairment – Respondent’s Statement of Facts, Issues and Contentions (RSFIC) p. 10.
Legislative Provisions
So far as is presently relevant, s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) provides compensation is payable in respect of an injury suffered by an employee if the injury results in incapacity for work or impairment. An “injury, inter alia, can be a physical or mental injury arising out of, or in the course of, employment or an aggravation of a physical or mental injury – s 5A.
“Impairment” is defined by s 4 to mean the loss, loss of use, or damage or malfunction of any part of the body or any bodily system or function.
Section 28 of the Act authorises Comcare to prepare a “Guide to the Assessment of the Degree of Permanent Impairment” which sets out certain matters, including criteria for determining the degree of permanent impairment resulting from an injury, and for that assessment to be expressed as a percentage. One feature of the Guide is to give percentages of “whole person impairment” (WPI) based on ascending degrees of loss of bodily functions described by very short snapshot practical examples.
The Guide
The First Edition of the Guide was approved in 1989 and the Second Edition was approved in 2005. The latest version of the Guide is Edition 2.1 which came into effect on 1 December 2011. It is this edition of the Guide which has been applied in this matter.
Edition 2.1 of the Guide is divided into two Parts. Part 1 applies to all Commonwealth employees who are not members or former members of the Australian Defence Forces (ADF). Part 2 applies to members and former members of the ADF who suffered an injury whilst enlisted but prior to the commencement of the Military Rehabilitation and Compensation Act 2004.
In this matter, Part 2 of the Guide applies.
A reading of the Guide discloses that the criteria utilised for determining the degree of permanent impairment diverges at times significantly between Part 1 and Part 2. The criteria utilised in Part 2 are more generous for employees than in Part 1. One issue that arose in the matter was the potential confusion in medical reports in ascribing degrees of whole person impairment between the criteria in the two Parts.
It is also the case that both editions of the Guide have been the subject of withering criticism by the Federal Court for the imprecise, garbled and contradictory language utilised. The first edition was particularly criticised – see Whittaker v Comcare (1998) 86 FCR 532 at 537-544 per Drummond, Cooper and Finkelstein JJ. The Full Court in Whittaker specifically endorsed the following statement of Olney J in Comcare v Ticsay (1992) 38 FCR 181 at 188:
“The first principle established by the authorities is clearly stated by Hill J in Thiele v Commonwealth (1990) 22 FCR 342 at 346 when he said in relation to the precursor of the Act:
‘The present legislation is socially remedial legislation intended to benefit workers and should be given a construction which advances its purposes as such. Thus where two constructions are possible, that which is favourable to the worker should be preferred: Wilson v Wilson’s Tile Works Pty Ltd (1960) 104 CLR 328 at 335 per Fulmar (sic) J’
Reference was also made to the dictum of Gibbs J (as he then was) in Public Transport Commission (NSW) v J Murray-Moore (NSW) Pty Ltd (1975) 132 CLR 336 at 350: ‘[W]here two meanings are open…it is proper to adopt that meaning that will avoid consequences that appear irrational and unjust’. Having regard to the definition of the term ‘impairment’, to the provisions of ss 14 and 24, and to the particular purpose of the Guide as provided in s 28(1), it seems that the legislative policy of the Act is to provide for the payment of compensation to an employee who has suffered an injury resulting in permanent impairment. The Guide should be construed and applied in aid of the general statutory purpose, not as a means of limiting it.”
The Full Court in Whittaker determined that where two Tables are applicable, that Table which yields the most favourable result to the employee applies.
Whole Person Impairment
In this matter Dr Morgan and Dr Hayes opine that the Applicant suffers from a 10% WPI for each of his left and right knee conditions under Table 9.2 and 20% WPI for each of his left and right knee conditions under Table 9.5. The legal representatives of the Applicant submit that the matters to be determined by this Tribunal are referrable to Table 9.5 – Applicant’s Statement of Facts and Contentions (ASFC) p. 3. As Table 9.5 is the more favourable Table for the Applicant, it will be the focus of this determination.
One particular aspect of the Guide has resulted in much confusion. There is copious jurisprudence on the correct application of WPI.
For present purposes, however, reference can be made to the decision of the High Court in Fellowes v Military Rehabilitation and Compensation Commission (2009) 240 CLR 28. Fellowes was a member of the ADF and suffered two distinct injuries. The first in 1986 when she suffered a left knee and 1987 when she injured her right knee. The question to be determined was whether Fellowes was entitled to compensation for each injury even though the second injury did not affect her ability to walk to any significantly greater extent than the first injury. A majority of the High Court answered this question in the affirmative.
Hayne, Heydon, Crennan and Bell JJ outlined the question to be determined ([15]/35):
“It was not disputed that the applicant suffered two injuries. Each injury resulted in a permanent impairment in the sense that each injury resulted in permanent damage to, or loss of use of, part of her body. Each injury caused damage to, or loss of, a different part of the body: in one case the left knee; in the other, the right. The central question in the appeal is that presented by s 24(5) of the SRC Act: how was ‘the degree of permanent impairment of the employee resulting from’ the second injury to be determined ‘under the provisions of the approved Guide’?
Their Honours outlined the competing arguments of the appellant and respondent, and favoured that of the appellant (([16]/35):
“The appellant submitted that, each injury having led to a separate impairment, the degree of permanent impairment of the employee that resulted from the injury was determined by looking to the consequences that followed from that injury. The consequences to be identified, so the appellant submitted, were the consequences that followed form the particular impairment as that term is identified in the SRC Act. In this case, because there were two injuries and two impairments, two amounts of compensation should be awarded.”
Their Honours made the following observations about the application of the Guide ([25]-[26]/37-38):
“25 The statement in the Guide, that ‘[w]here two or more injuries give rise to the same impairment a single rating only should be given’, must be understood as directing attention to an impairment as that term is defined in the SRC Act. That is, the reference to the ‘same impairment’ must be understood in terms of the particular identified effect on particular bodily parts, systems or functions. Contrary to the respondent’s submission, this statement in the Guide is not to be understood as requiring a single rating to be given whenever each of two injuries is assessed as yielding the same degree of impairment of two separate parts of the body.
26 The text of the Guide is therefore to be construed as providing that the whole person impairment to which it directs attention requires comparison with the ‘functional [capacities] of a normal healthy person’ rather than the capacities of the particular applicant as they existed immediately before the injury in question. The reference to two injuries causing the ‘same impairment’ requires attention to the particular identified effect on bodily parts, systems or functions that is said to have resulted from the two injuries. “
Accordingly, in this matter the Applicant has suffered two injuries each of which resulted in two separate impairments, and therefore each of those impairments is to be separately assessed under Table 9.5 of the Guide.
Table 9.5 of the Guide
Table 9.5 relates to lower limb function and sets out WPI percentages from 10 to 65. The 10 – 30% WPI and the descriptions of the levels of impairment are as follows:
10 Can rise to standing position and walk but has difficulty with grades and steps.
20Can 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.
The Applicant’s legal representatives correctly highlight (ASFC para 6 p. 4) that the requirements of Table 9.5 in Part 2 are of a lesser standard than the comparable table in Part 1 (Table 9.7). In non-ADF claims Table 9.7 of Part 1 lists both major criteria and minor criteria. Claimants are required to satisfy at least one of the major criteria and two of the minor criteria (where listed).
To be assigned 20% WPI under Table 9.7 a claimant must, in terms of the major criteria, walk at a moderately reduced pace in comparison with peers on level ground or walking is restricted to 250 metres or less although a claimant may be able to walk further after resting.
Three minor criteria are listed:
(a)legs give way occasionally, causing falls;
(b)claimant is unable to negotiate three or more stairs or a ramp (up and down) without the use of a walking aid or hand rails; and
(c)claimant is unable to rise from a sitting to a standing position without the use of one hand but can stand without support.
The introductory notes to Table 9.7 provides the following guidance at the outset:
“Table 9.7…should only be used to assess impairment from objectively identified orthopaedic or neurological conditions arising in and affecting the lower extremities. It may not be used to assess impairment from conditions manifesting principally as pain with no clinically demonstrable lower extremity pathology.”
The Tribunal observes that some of the evidence provided by Dr Steadman was predicated on a preference for, and reliance on, objective evidence, namely radiology, as distinct from subjective factors, such as levels of pain. Moreover, Dr Steadman placed emphasis on the ability of the Applicant to rise from a sitting to a standing position. In short, the ostensible focus of some of Dr Steadman’s diagnosis was towards satisfying or not the requirements of Table 9.7 in Part 1 as distinct from the simpler criteria in Table 9.5 in Part 2. Table 9.5 only specifies one descriptor to satisfy the 20% WPI requirement, namely that the claimant can rise to a standing position and walk but has difficulty with grades, steps and distances.
It will be noted that the descriptor Table 9.5 requires that a claimant can rise to a standing position. This can be contrasted with Table 9.7 which requires that a claimant cannot rise from a sitting to a standing position without the use of one hand. The fact that the Applicant can rise from a sitting to standing position without needing the use of one hand, as Dr Steadman observed of the Applicant, is not fatal to his application. Indeed, a plain reading of Table 9.5 suggests that there is no intent by the drafters of the Guide to prescribe how a claimant can rise to a standing position. It is only when one attains 65% WPI under Table 9.5 that the descriptor requires that a claimant “cannot stand”. Accordingly, the fact that the Applicant was observed by Dr Steadman to rise from a chair to a standing position without needing to use a hand to elevate himself, is not relevant to assessing the degree of WPI in Table 9.5.
Further, Table 9.5 simply requires that a claimant “can walk” but has difficulty with grades, steps and distances”. Again this is in contrast with the requirements of Table 9.7 where walking is restricted to 250 metres and that a claimant is unable to negotiate three or more stairs or a ramp without the use of a walking aid or hand rails.
“Difficulty”
The threshold issue to be addressed in Table 9.5 is the meaning of “difficulty”. This term is not defined by the Act.
The first observation is that the difficulty with grades, steps and distances is to be read conjunctively. Accordingly, in order to be assigned WPI of 20% a claimant must have difficulty with all of the descriptors.
The proper construction of the “difficulty” requirement was given by the Full Federal Court in Comcare v Fiedler [2001] FCA 1810. Drummond, Kiefel and Dowsett J rejected a number of Tribunal determinations which had, in effect, interpreted difficulty to require substantial impairment. Their Honours observed that the Tribunal had failed to follow the Full Court’s ruling in Whittaker and construe the ambiguous term “difficulty” in a way most favourable to the employee. Their Honours said (at [22]-[23]):
“22 As to the proper construction of the provision, the Tribunal in this case correctly identified the language in Table 9.4 as ambiguous. The word ‘difficulty’, like most ordinary English words, has no fixed meaning but is, as the Tribunal observes, a word capable of covering a broad spectrum of restriction and disability in the context of a phrase such as ‘difficulty with digital dexterity’ in Table 9.4. According to the Macquarie Dictionary, 3rd ed, ‘difficulty connotes range of conditions from being ‘not easy’, to being ‘hard to do’, to ‘requiring much effort’. According to the Macquarie Dictionary, 2nd ed, it connotes notions of not being easy, of requiring effort or labour, of being troublesome or hard to do, perform or carry out. An injury that leaves a person in the position of requiring much effort to perform tasks calling for digital dexterity involves a markedly more serious impairment than does an injury which makes it not easy or troublesome for a person to perform such tasks.
23 Something more than minimal problems with digital dexterity is required. But if a person, as a result of his injury, finds it troublesome or not easy to do tasks requiring digital dexterity, that will, adopting the approach to interpretation required by Whittaker at 544-545, justify a 10% impairment assessment under paragraph 1 of Table 9.4”.
Of particular assistance to the Tribunal is the determination of Bacic and Comcare [2008] AATA 465. In that matter Deputy President Groom gave the following guidance on the meaning of grades, steps and distances (at [25], [27], [28], [31]):
“25. The words ‘grades’ and ‘steps’ are not defined or otherwise explained in the Guide. Their meaning, however, is plain. In this context the Tribunal considers that the term ‘grades’ indicates an inclined pathway, road, footpath or ramp with a flat surface. ‘Steps, in the Tribunal’s view, means a step or a series of steps or stairs…
27. In the Tribunal’s opinion the term distances is intended to extend the relevant tasks causing difficulty beyond negotiating grades and steps to difficulties walking distances on flat or relatively flat surfaces.
28. However, another question arises concerning the meaning of distances. Does the term mean difficulty in walking a distance simpliciter. That is, if a person is able to get from point A to point B then the person has not had the necessary difficulty. Or is it that even if the person can walk the distance it is sufficient to show that it was troublesome or not easy for the person to walk that distance. It is the Tribunal’s view that the latter interpretation is the correct one…
31. The test in this application is therefore whether it was ‘troublesome’ or ‘not easy’ for the applicant to walk up and down grades and steps and also whether it was ‘troublesome’ or ‘not easy’ for her to traverse distances when walking on flat or relatively flat surfaces. The difficulties have to be more than minimal.”
The jurisprudence on the question of difficulty, then, requires the Tribunal to weigh the evidence to ascertain if the particular applicant has difficulties in performing the enumerated tasks with more than minimal problems or difficulties. The evidence must disclose that an applicant finds it troublesome or not easy to perform the stated tasks. It is not necessary for the evidence to disclose than an applicant is unable to perform an enumerated task per se, at least in the context of the 20% WPI criterion in Table 9.5.
Relevance of Pain
There is also a considerable body of jurisprudence on the relevance of pain to the assessment of “difficulty”. For present purposes reference is made to the decision of Mansfield J in Comcare v Moon [2003] FCA 569. His Honour said:
“45. The contention of Comcare is that pain which does not prevent or restrict a physical activity at the time of the activity is irrelevant to an assessment of impairment under Table 9.5. That is, must objectively be seen that the activity is ceased or restricted during its performance to amount to impairment.
46. I do not accept that contention. In the first place, I do not consider Jenkinson J in Amorebieta intended to say that pain experienced during activity is not relevant to the assessment of level of impairment under s 24 of the Guide or under the measure of ‘difficulty’ in Table 9.5. He recognised there may be a relevant ‘voluntary restriction of movement evoked by the onset of pain’ which could evidence or amount to an impairment. That may be by way of comparison with pain which does not in fact impair movement or activity, but which may nevertheless entitle a claimant to compensation under s 27 of the SRC Act. The definition of relevant terms in the Guide are consistent with those used in s 4 of the SRC Act. ‘Impairment’ is defined to mean ‘the loss, loss of use, or the damage or malfunction, of any part of the body, or of any bodily system or function or part of such system or function’. The question it posits is whether, objectively, a claimant’s ‘personal efficiency’ in the activities of daily living is adversely affected…
47. In this matter, the Tribunal accepted Mr Moon has some pathological change to his lower legs (to which his employment contributed, as found by the decision of 12 April 1999). It accepted the condition restricts him in his daily living, consistent with his evidence. The restriction occurs because he suffers pain during and after certain activities. He gave evidence to that effect, which the Tribunal accepted. Hence he avoids those activities when he can. Sometimes he cannot, and suffers the consequences. But his evidence, and the medical evidence, was consistent with the Tribunal’s finding that he ‘has difficulty’ with grades and steps. I do not think the fact that Mr Moon on occasions does climb stairs or ascend slopes means he does not have difficulty with grades and steps. Once the difficulty is found to exist, that the activity is avoided to avoid the experiencing of pain does not make the difficulty any less. In my view, it is a question of fact in each case as to whether pain experienced in activity presents a ‘difficulty’ with that activity, or whether it is simply a consideration going to ‘lifestyle effects’. The Tribunal in this matter decided the pain experienced by Mr Moon, in the light of the findings it made about the condition, amounted to a ‘difficulty’ with grades and steps. In my judgment, that finding was amply available to it. The term ‘difficulty’ in e.g. Table 5, is not a term of art, but carries its ordinary meaning…”
The legal representatives for the Applicant drew to the Tribunal’s attention Chang and Military Rehabilitation and Compensation Commission [2013] AATA 677.
Chang involved an assessment of an ex-ADF person’s WPI under Table 9.5 of the Guide. The degree of the claimant’s impairment was inextricably linked to his psychiatric condition. As in this matter there was a divergence of medical evidence, although none of that evidence dismissed the relationship between the applicant’s psychiatric state and his lower limb function. In short, like this matter, the degree of impairment was exacerbated by the applicant’s mental state. The Tribunal determined in that matter in favour of the applicant and in doing so found that objective evidence (radiology) would not necessarily defeat a claim based on subjective factors (pain experienced).
It is not disputed that in determining WPI under Table 9.5 of the Guide the degree of pain an applicant suffers, and the practical consequences of the pain being experienced, can and should be considered – Comcare v Lilley [2013] FAFC 121 at [78]. It is also the case that pain is a uniquely personal experience. Medical science has not advanced to a stage where the degree of pain a person suffers can be measured with any degree of accuracy. That the pain suffered by a person is real and can exacerbate an underlying physical condition is accepted. The task required by a decision-maker in this context is a difficult and inexact one. To put it simply, the decision-maker has to assign a percentage of WPI based on terse and relatively simplistic functional criteria set out in the Guide. The starting point must always be the reception and acceptance of objective evidence that establishes the existence of an injury and the resultant permanent impairment. However, the degree of impairment can be assessed by both objective and subjective material. Objective evidence cannot in every instance deny the existence of subjective factors. In this matter, the fact that the radiological evidence may not correspond with the claimed degree of impairment is not to be resolved by dismissing the Applicant’s claimed pain levels. It is to be resolved by assessing and weighing the material presented and reaching a conclusion that, on the balance, comports with the totality of the evidence. Integral elements in this weighing exercise are the credibility of the Applicant and the resolution of any conflict with the medical evidence presented.
As to the first issue, namely the credibility of the Applicant, we closely observed his demeanour in the witness box. The Applicant gave his evidence in a clear and straightforward manner, without hesitation or prevarication. He presented as a truthful and reliable witness. There were no inconsistencies in his accounts of events. His evidence of the level of discomfort he experiences in walking distances and difficulties with grades and steps was credible.
Before turning to the medical evidence, it is appropriate to deal with one of the contentions of the Respondent. The Respondent drew the Tribunal’s attention to the Principles of Assessment contained at page 218 of the Guide. It is stated that the Guide uses as far as possible objective criteria for ascertaining loss of function – RSFIC p.10 para 7.
Whilst the specified criteria in Table 9.5 are objective manifestations of loss of function, the medical underpinnings for the inability to perform the objective criteria can be physiological or a combination of physiological and psychological. Provided there is an appropriate professional diagnosis of the underlying medical reasons for loss of function, then a soundly based WPI can be assigned. Consequently, it is not to the point that objective criteria are used in Table 9.5 of the Guide for measuring the degree of WPI. That is to be expected. The real issue is the diagnosis of a particular claimant that establishes if he or she meets the objective criteria.
Medical evidence
The Tribunal had the benefit of receiving excellent written and oral evidence from
Dr Morgan and Dr Steadman. Both Doctors gave extremely professional evidence and neither was pedantic in response to questions asked in cross-examination. In short, they greatly assisted the Tribunal and we place on record our appreciation for the way they discharged their obligations.
The Respondent contended that the radiological imagining of 22 June 2016 revealed little to no evidence of, inter alia, tibiofibular arthritis – RSFIC p. 11 para 8(c).
Dr Morgan made the following statement in his report of 17 November 2016 –
Exhibit 5 p. 3:
“There was evidence of osteoarthritis with degenerative disease in the proximal tibiofibular joint.
It should be appreciated that this is a so-called ‘low range joint’. There is little movement occurring at that joint. The movement that does occur is of a rotary nature. It relates to rotation of the fibula to accommodate the talus in the mortise of the ankle joint during sagittal planar movement of the ankle whilst under load. It can be the subject of osteoarthritis and it can give rise to pain. Again, the radiographic images are of no relevance in this functional assessment.”
When giving oral evidence, Dr Morgan stated that the significance of osteoarthritis in the proximal tibiofibular joint was of no relevance to the functional assessment. Rather, he testified that there were three factors relevant to the claim:
(a)medial meniscus tears in both knees;
(b)medial compartment osteoarthritis in both knees; and
(c)chondromalacia patella in both knees.
Dr Morgan re-iterated in his testimony that radiographs alone may not be sufficient to make a definitive diagnosis for the purpose of Table 9.5. He went on to testify that there is a range of pain levels experienced in osteoarthritis of the knees, just as there is a range of changes in radiograph findings. Dr Morgan testified that pain experienced by a person does not always correlate with radiographic changes; indeed, severe pain may be experienced by patients with minimal radiographic changes.
When giving testimony, Dr Steadman agreed with the last proposition.
Dr Morgan testified that he did not believe that the Applicant was exaggerating his symptoms nor did he doubt his credibility. When being questioned by Mr Anforth,
Dr Steadman testified that he had formed the view that the Applicant was “genuine”. He reiterated this opinion during cross-examination. He testified that when forming the view the Applicant was genuine, he took into account his medical history, the physical examination he undertook and ancillary investigations. He eventually formed the view that the Applicant’s historical account of his conditions was accurate, but only at the end of a process of investigation, but not initially.
Dr Steadman also testified under cross-examination that he accepted the truthfulness of the Applicant’s account of the pain he claimed he was suffering. He went on to testify that he was not suggesting that the Applicant was exaggerating his levels of pain, but was simply highlighting the dichotomy between the objective and subjective evidence.
Dr Steadman explained that he expected that x-rays of the knees would show progressing osteoarthritis which would lead to knee replacements. However, when he examined the
x-rays he discovered they did not disclose the degeneration that he expected, and his opinion changed.
It was during the cross-examination that Dr Steadman referred to the “Bell Curve”, and he stated that the Applicant appeared to be an “outlier” who was an exception to the rule when it came to levels of pain and the nature of their arthritic condition. He agreed that the Applicant’s level of pain could be greater than the x-rays indicated.
Further, Dr Steadman agreed with the proposition that x-rays do not show pain. It is not possible to examine an x-ray and form a definitive opinion about the level of pain being experienced by the patient. An x-ray forms a solid foundation for such a view, but is not definitive.
Dr Steadman also agreed with the proposition that some people have good and bad days with arthritis, and that pain is an inherently personal matter.
The evidence of both Dr Morgan and Dr Steadman was convincing. Both provided excellent written reports and neither doubted the honesty of the Applicant. Critically, Dr Steadman agreed that x-ray findings may not always comport pain levels being experienced by a patient.
Having considered the evidence of both Doctors, the Tribunal prefers the diagnosis of Dr Morgan.
Conclusion
In this matter the only substantial question for the Tribunal is to assess is the degree of permanent impairment.
In determining this question, there is a divergence between the physical pathology and the levels of pain claimed, resulting in a difference of opinion about the degree of functional capacity.
The task of the Tribunal in this matter is superficially simple, but, in reality extremely difficult. It involves a twofold task of determining which medical evidence to be preferred and in turn an assessment of the credibility of the evidence of the Applicant.
The role of the decision-maker in such circumstances is obvious: they must weigh up the evidence intellectually and emphatically. A decision-maker must form a view about the credibility of a person’s evidence not only from physical observation but buttressed from anterior written evidence and informed by relevant principles of law.
As previously stated, we formed a very positive view of the evidence of the Applicant. Mr Clark, on behalf of the Respondent, assisted the Tribunal with his vigorous and relevant cross-examination of the Applicant. The role of Counsel in matters such as this can be critical, and we paid particular attention to the manner in which the Applicant answered the pertinent questions that were posed by Mr Clark. If there was scope for error in the Applicant’s version of events, then Mr Clark’s cross-examination would have exposed it. As it transpired, no error was disclosed.
Again we paid close attention to the oral evidence of the medical experts, and were impressed by their candour and objectivity. For the reasons expressed above, we preferred the diagnosis of Dr Morgan.
Having regard to all of the evidence, and the relevant principles of law, we have determined that the Applicant has a 20% WPI impairment to his right and left knees under Table 9.5 of the Guide.
DECISION
105.The decision under review is set aside, and in substitution it is decided that the Applicant has a 20% WPI impairment to his right and left knees under Table 9.5 of the Guide.
I certify that the preceding 105 (one hundred and five) paragraphs are a true copy of the reasons for the
decision herein of
Senior Member J Sosso and Member Dr G Maynard..................................[Sgd]......................................
Associate
Dated: 25 August 2017
Dates of hearing: 27 June 2017 and 28 June 2017 Counsel for the Applicant: Mr Allan Anforth Solicitors for the Applicant: Mr James Pattison
Watt & Severin SolicitorsCounsel for the Respondent: Mr Charles Clark Solicitors for the Respondent: Dr Megan Brooks
Moray and Agnew Lawyers
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