Jamieson and Military Rehabilitation and Compensation Commission

[2008] AATA 201

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 201

ADMINISTRATIVE APPEALS TRIBUNAL      )

)         No A2007/899 &   959

VETERANS AFFAIRS  DIVISION		)
Re		ANDREW JAMIESON

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date14 March 2008

PlaceCanberra

Decision The decisions under review are affirmed.

............signed..................................

Mr S. Webb, Member

CATCHWORDS

COMPENSATION - knee injury - permanent impairment - degree - difficulty with grades and steps - difficulty with distance not established - 10 percent whole person impairment - decision affirmed

COMPENSATION - knee injury - medical treatment - hydrotherapy - not reasonable medical treatment - decision affirmed

Safety, Rehabilitation and Compensation Act 1986 ss 4, 24

Compensation (Commonwealth Government Employees) Act 1971

Canute v Comcare [2006] HCA 47

Comcare v Fielder (2001) 115 FCR 328

REASONS FOR DECISION

14 March 2008 Mr S. Webb, Member         

1.      Andrew Jamieson served in the Australian Army.  In the course of that employment his left knee was injured.  He claimed and was paid compensation.  Over time he developed a Complex Regional Pain Syndrome Type 1 (Regional Sympathetic Dystrophy).  The Military Compensation and Rehabilitation Service (presently the Military Rehabilitation and Compensation Commission) (‘the Commission’) accepted liability to pay Mr Jamieson compensation in relation to this condition.  He claimed compensation for permanent impairment and was paid compensation in relation to a 10 percent whole person impairment. 

2.      Subsequently, Mr Jamieson claimed additional compensation for permanent impairment.  This claim was rejected by primary determination and on reconsideration.  Mr Jamieson also claimed compensation for hydrotherapy treatment expenses in relation to his injury.  Initially this claim was accepted.  However, later, a determination was made to cease payment of compensation for hydrotherapy.  This determination was affirmed on reconsideration.

3.      These decisions are presently before the Tribunal for review.

4.      At the outset of the hearing, I was informed that the parties had resolved the application concerning hydrotherapy treatment and had agreed to ask me to affirm that decision without proceeding to hear that matter.  I accepted these submissions and as it is appropriate to do so on the evidence before me, therefore decide that the reviewable decision in application number A2007/899 is affirmed.

5. Thus the only issue for determination is whether Mr Jamieson is entitled to additional payment of compensation for permanent impairment pursuant to ss 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (the ‘SRC Act’).

6.      The relevant factual history is as follows.  On 28 November 1977 liability was accepted for “Recurrent subluxation of patella left knee” under the Compensation (Commonwealth Government Employees) Act 1971 (‘1971 Act’).[1] On 14 December 1992 liability was accepted for “Patellofemoral arthralgia left knee”, with the date of injury being 20 October 1987, pursuant to subs 24(1) of the SRC Act.

[1] T5 folio 21.

7.      On 29 July 1996 Dr Alan Nichols responded to questions put to him by the Commission in relation to Mr Jamieson’s left knee condition for the purposes of assessing his entitlement to compensation for permanent impairment.[2]  Dr Nichols reported that the left knee condition stabilised in or about 1992.  Mr Jamieson was medically discharged from the Army in March 1997.  On 1 May 1997 the Commission determined that Mr Jamieson was entitled to compensation for a 10 percent whole person impairment in relation to “a Left Knee condition”.[3] This determination was made with reference to Dr Nichols’ assessment of a 20 percent loss of the efficient use of Mr Jamieson’s left leg.  On 14 November 1997 the Commission noted that Mr Jamieson had “been assessed for a lump sum” “under the 1971 Act”[4], but no determination had been made in relation to s 27 of the SRC Act. That matter was resolved in a consent decision of the Tribunal dated 18 May 2000.[5] 

[2] T10; T8 refers.

[3] T11 folio 36.

[4] T12 folio 38.

[5] T16.

8.      On 13 October 1999 Dr P. Phillips, a consultant orthopaedic surgeon, reported that Mr Jamieson suffered from “complex regional pain syndrome type 1” and had a 30 percent whole person impairment under Table 9.5 of the Comcare Guide to the Assessment of the Degree of Permanent Impairment (‘the Guide’).[6]  Dr Phillips reported that “The outlook is bad” and “further surgery would make him worse”, but he did not comment upon whether or not the impairment he assessed was permanent.[7] 

[6]T14;see

[7] T14 folio 49.

9.      On 22 November 2001 Dr Jeremy Hopkins, a consultant orthopaedic surgeon, reported that “any impairment based upon his demonstrated range of movement, I considered, would be a false assessment, as I am of the viewpoint that Mr Jamieson is hyperreactive and that his knee is capable of a greater degree of flexion than he demonstrated to formal examination”.[8]  On that basis, Dr Hopkins considered that an assessment at 30 percent whole person impairment under Table 9.2 or Table 9.5, “is in excess of what I would normally expect in the circumstances”.[9]

[8] T19 folio 64.

[9] T19 folio 65.

10.     From October 1998 Mr Jamieson received medical treatment for his left knee condition from Dr Peter Blombery, consultant physician, who administered phentolamine infusions.[10]  Dr Blombery reported that Mr Jamieson “had significant improvement after [phentolamine infusions in 2001]”[11], but had less improvement following similar treatments in 2002 and 2003.[12]  Mr Jamieson also obtained medical treatment from Clinical Associate Professor John Hart from approximately 1998.  Professor Hart considered surgical options and referred Mr Jamieson to hydrotherapy treatment and (later) to Dr Brett Todhunter, a specialist in pain medicine, for pain management treatment.

[10] See T29 folio 78.

[11] See T18.

[12] T29 folio 78.

11.     From 4 March 2002 to 5 April 2002, Mr Jamieson obtained hydrotherapy treatment at the Wagga Wagga Base Hospital.[13]  However, this program was ceased on 16 May 2002.[14]

[13] T22.

[14] T25 and T26 refer.

12.     On 20 December 2003 the Commission determined that Mr Jamieson had  “suffered  an injury arising out of, or in the course of, your military service and that liability be extended to include complex regional pain syndrome, type 1 of the left knee”.[15]  That determination was affirmed on reconsideration on 4 October 2005.[16]  The reconsideration officer concluded that Mr Jamieson’s “complex regional pain syndrome type 1 of the left knee is secondary to your patello femoral degeneration’ and is therefore also compensable”.[17]

[15] T30 folio 80.

[16] T33.

[17] T33 folio 86.

13.     On 11 January 2006 the Commission decided, in an own motion reconsideration, to amend the description of Mr Jamieson’s “accepted condition from ‘patello femoral degeneration’ to ‘complex regional pain syndrome, type 1 of the left knee’”, and determined that “as at 28 December 1977, you ceased to suffer the effects of your previously accepted condition of ‘recurrent subluxation of patella left knee’”.[18]

[18] T35 folio 89.

14.     On 29 August 2006 Professor Hart reported that Mr Jamieson suffered from two permanent conditions: complex regional pain syndrome type 1 and patella subluxation in the left knee.[19]  In the Professor’s opinion, it was necessary to treat the complex regional pain syndrome before undertaking further treatment for the subluxation of the patella.[20]

[19] T37 folio 100.

[20] T37 folio 103.

15. On 1 June 2006 the Commission determined to reject Mr Jamieson’s request for a further payment of compensation for permanent impairment apparently on the basis that his left knee condition became permanent on 28 December 1977, and that compensation for permanent impairment was not payable under subs 39(14) of the 1971 Act, and therefore, s 124 or s 24 of the SRC Act.[21]

[21] See T40  folio 117.

16.     On 4 September 2006 Dr Peter Battlay, a consultant orthopaedic surgeon, reported that Mr Jamieson:

…showed a better range of movements than the formally demonstrated 20º of flexion.  Judging by the normal girth measurements in his thigh and calf muscles, he is also using the left leg to much better advantage than he claims, particularly given that his right leg is totally asymptomatic.

In light of these observations, I would award him a 10% whole person impairment for his left knee condition.  I am sure that he can rise to a standing position (which he demonstrated) and he can walk, but it is accepted that he might have difficulty with grades and steps.   According to the musculoskeletal Table 9.5, this equates to a 10% whole person impairment.[22]

[22] T44 folio 142.

17.     On 13 March 2007 the Commission reconsidered and affirmed its primary determinations to cease hydrotherapy treatment and to reject Mr Jamieson’s request for further compensation for permanent impairment relating to complex regional pain syndrome type 1.[23]

[23] T45.

18.     Mr Jamieson asserts that he is entitled to a 30 percent whole person impairment in accordance with Dr Phillips’ reported findings in 1999.

19.     As will appear, I do not agree.

20. In order to qualify for further compensation for permanent impairment, it must be established to the reasonable satisfaction standard, that either the level of Mr Jamieson’s permanent impairment has increased by 10 percent (subs 25(4) of the SRC Act), or that he has suffered a 10 percent permanent impairment as a result of an injury other than that for which he has already been compensated (subs 24(1) and (7)).

21.       Applying the High Court’s judgement in Canute v Comcare [2006] HCA 47, it is necessary to establish whether one or more injuries have occurred in relation to which compensation for permanent impairment may be payable. In Mr Jamieson’s case, it appears to me that he has suffered at least two injuries. The first injury is recurrent subluxation of the patella left knee, being a frank physical injury in 1977. The Commission accepted liability for this injury on 28 November 1977.[24] The second injury is patellofemoral arthralgia left knee, later diagnosed as complex regional pain syndrome type 1, being a disease in relation to which medical treatment was first obtained on 20 October 1987, while the 1971 Act was in force.  The Commission accepted liability for this injury on 14 December 1992.[25]  It is also possible that Mr Jamieson suffered a third injury in the form of osteoarthrosis in his left knee.  However, whether or not that condition constitutes a separate injury was not agitated in these proceedings and I make no findings in that regard. 

[24] T5 folio 21.

[25] T6 folio 22.

22.     During the hearing I was informed by Mr Wallace, counsel for the Commission, that no issue was taken concerning the diagnosis of Mr Jamieson’s left knee injury.  Thus I will not dwell on that point, but note that medical reports over time are sufficient to establish that Mr Jamieson suffered from patellofemoral subluxation of the left knee, osteoarthritic changes in his left knee and a left knee complex regional pain syndrome type 1.

23. It is not in dispute that Mr Jamieson has suffered impairment as a result of the injuries he suffered (see definition of ‘impairment’ at subs 4(1) of the SRC Act). It is safe to say, on the medical evidence, that it is not possible to isolate or distinguish the impairments arising from each injury. Essentially, the injuries give rise to impairments that relate to loss of range of movement of the left knee and to difficulties with perambulation.

24. There is no evidence that Mr Jamieson’s left knee impairments became permanent prior to commencement of the SRC Act on 1 December 1988. It appears on Dr Nichols’ evidence, that the left knee impairments stabilised in or about 1992.[26] Thus, even though Mr Jamieson’s injuries occurred at a time when the 1971 Act was in force, I am reasonably satisfied that his left knee impairments became permanent in or about 1992 when the SRC Act was in operation.

[26] T9 folio 35.

25.     On 1 May 1997 Mr Jamieson claimed and was paid amounts of compensation for a 10 percent whole person impairment in relation to an unspecified “left knee condition”, and for related non-economic loss pursuant to ss 124, 24 and 27 of the SRC Act.[27]  The present task is to establish whether he has suffered any further permanent impairment as a result of his compensable injuries, and if so, whether he is entitled to further compensation.

[27] T11.

26. The degree of permanent impairment is to be determined by application of the Guide (subs 24(5) of the SRC Act). Presently, there are two impairments to consider: range of movement in the left knee and lower limb function (difficulties with perambulation). The former is within the scope of Table 9.2 of the Guide and the latter is within the scope of Table 9.5 of the Guide. As the impairments arise from the injuries generally and cannot be isolated or attributed to one particular injury, all that can be said is that the injuries give rise to the two impairments. Nevertheless, it is plain enough from the Introduction to Table 9.1 (in the context of the musculo-skeletal system Tables) that Tables 9.2 and 9.5 cannot both be applied when assessing the degree of impairment in a limb. As the SRC Act is beneficial legislation, the table providing the more favourable result for Mr Jamieson will be applied.

27.     Mr Jamieson says that his left knee condition has worsened over time and he is entitled to a 30 percent whole person impairment.  However, I do not accept Mr Jamieson’s evidence is reliable.  His evidence in chief was that his left knee condition had worsened over time and his impairment had increased since the cessation of hydrotherapy treatment.  However, under cross examination he conceded that his left knee condition had improved over time with treatment.  Considering this and other inconsistencies in Mr Jamieson’s evidence, I am satisfied that his evidence cannot be relied upon and must be treated with caution.  Thus, I do not accept his evidence concerning controversial matters in dispute without reliable corroboration.

28.     I note in passing that on 28 September 2006 Professor Hart reported that Mr Jamieson’s “[complex regional pain syndrome type 1] is deteriorating through lack of treatment”.[28]  The basis of that assessment is not clear.  The report is in note form only and Professor Hart was not called to give evidence.  The Professor indicates that treatment for the condition is phentolamine and hydrotherapy treatment, and it may be inferred that he is referring to those treatments in his assessment.  The report of Dr Todhunter dated 25 October 2006 is to be noted on this point, especially in relation to issues concerning hydrotherapy.[29]  Nevertheless, neither Professor Hart nor Dr Todhunter made any assessment of the extent or permanence of Mr Jamieson’s left knee impairment.

[28] T37 folio 104.

[29] Exhibit R1.

29.     I am reasonably satisfied and find that Mr Jamieson’s impairments improved with the medical treatment he obtained from Dr Blombery and Dr Todhunter after 1999.  That much he conceded under cross-examination and is consistent with the evidence of Dr Battlay and Professor Hart.[30]  Furthermore, as will appear, I do not accept that Mr Jamieson has been entirely frank with doctors who have examined him for compensation assessment purposes about the true extent of his left knee symptoms and impairments. 

[30] Exhibit A2.

30.     The degree of Mr Jamieson’s permanent impairment concerning loss of range of movement in his left knee joint is to be determined under Table 9.2 of the Guide.  Mr Jamieson asserts that he has lost more than half the range of movement in his left knee.  However, that assertion is not supported by reliable medical evidence.  As can be seen from the reports by Dr Battlay and Dr Hopkins, there are substantial discrepancies between the range of movement in Mr Jamieson’s left knee on formal examination and the range of movement observed in the clinical context.  These discrepancies point to an element of exaggeration or voluntary restriction of movement on formal examination of Mr Jamieson’s left knee, masking the true range of movement in that joint.  I accept the evidence of Dr Battlay and Dr Hopkins on this point.  Dr Hopkins reported that “The range of movement of his left knee could only be demonstrated from 0-40º compared with 0-135º on the opposite side being normal”, and that Mr Jamieson “refused further attempts to flex his knee beyond 40º and stated that this was due to ‘RSD’”.[31]  Dr Battlay reported that “[Mr Jamieson] is casually observed to flex the knee reasonably well, certainly in excess of the 20º demonstrated during the formal part of the examination”.[32]

[31] T19 folio 60.

[32] T44 folio 141.

31.     Of course, the opinions of Dr Battlay and Dr Hopkins do not suggest that Mr Jamieson has a normal range of movement in his left knee.  I note that on 13 October 2003 Dr Blombery reported that Mr Jamieson “could only flex the [left] knee to 90º”[33] and on 18 May 2005 Professor Hart reported that “Range of movement was limited from 0 to 50 degrees”.[34]  In that report Professor Hart also reported that Mr Jamieson had reduced his medication following radiofrequency sympathetectomy treatment and “certainly the symptoms are less than they were before the radiofrequency treatment”.[35] It is difficult to reconcile Professor Hart’s assessment of the range of movement in Mr Jamieson’s left knee and the improvement of his condition in May 2005, with the previous findings and reports of Dr Blombery in October 2003 which indicated a greater range of movement than that reported by Professor Hart.  As Dr Blombery’s findings are more consistent with the conclusions of Dr Hopkins and Dr Battlay, I accept that his assessment of the range of movement in Mr Jamieson’s left knee (90 degrees) is a reasonable estimation of the extent of impairment in that joint.  That being so, I find that Mr Jamieson’s left knee impairment is less than half the normal range of movement, being 90 degrees out of 135 degrees normal range.  This is consistent with a 10 percent whole person impairment under Table 9.2 of the Guide.  I so find.

[33] T29 folio 77.

[34] Exhibit A2.

[35] Exhibit A2, p1.

32.     That is not the end of the matter.  It is necessary to consider the degree of Mr Jamieson’s permanent impairment concerning lower limb function (difficulty with perambulation) as a result of his left knee injury under Table 9.5 of the Guide.

33.     In his oral evidence, Mr Jamieson stated that he could only walk 50 metres and then would have to stop and rest for 10 minutes before attempting a further 50 metres.  He contends that this is consistent with a 30 degree permanent impairment.

34.     Table 9.5 of the Guide describes the degrees of lower limb function impairment in the following terms:

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.

30Can rise to standing position and walk with difficulty BUT is limited to level surfaces.

50Can rise to standing position and maintain it with difficulty BUT cannot walk.

35.     Comcare did not dispute that Mr Jamieson could rise to standing and walk but has difficulty with grades and steps.  Even though Mr Jamieson gave evidence that he did not experience difficulty accessing his house using ramps, I accept Dr Battlay’s opinion that, in all likelihood, Mr Jamieson experiences difficulty with grades and steps, and so find.

36.     Does Mr Jamieson experience difficulty walking to the extent that he is limited to level surfaces?  I am reasonably satisfied that he does not.  There is no reliable evidence that he is limited to walking on level surfaces.  By his own account he does not have difficulty accessing his home using ramps. 

37.     Does he experience difficulty walking distances? Mr Jamieson says that he can only walk 50 metres and then needs to rest before continuing.  There is no evidence to corroborate this assertion.  As will appear the medical evidence does not point to any such limitation and Mr Jamieson’s own accounts concerning his ability to walk distances are not consistent.  Clinical findings that have been reported from 1997 indicate changes in Mr Jamieson’s left calf and thigh girth measurements that are not consistent with the level of impairment he asserts.  In 1997 Dr Phillippa Harvey-Sutton reported some asymmetry, but equal circumference measurements of Mr Jamieson’s left thigh.[36]  In 1999 Dr Phillips recorded 2.5 centimetre wasting of the left thigh and 1.5 centimetre wasting of the left calf on examination.[37]  In 2001 Dr Hopkins reported 0.5 centimetre wasting of the quadriceps on the left side.[38]  In May 2005 Professor Hart reported that “difference in thigh circumference was only 1 cm, which was a little surprising”.[39]  On 4 September 2006 Dr Battlay reported no measurable left quadriceps or calf wasting.[40]  This evidence must be assessed in relation to the evidence concerning Mr Jamieson’s reported difficulties walking.  Dr Harvey-Sutton reported that Mr Jamieson informed her that he “would walk three times a week about 1 km”.[41]  Dr Phillips reported that Mr Jamieson could “not walk very far”.[42]  Dr Hopkins reported that Mr Jamieson said that he “can walk for 500 metres whereby he will develop ‘niggling’ pain”.[43]  Dr Battlay reported that Mr Jamieson told him that he “would not be able to walk more than 400 metres”.[44] 

[36] T13 folio 43.

[37] T14 folio 48.

[38] T19 folio 60.

[39] Exhibit A2, p2.

[40] T44 folio 141.

[41] T13 folio 42.

[42] T14 folio 48.

[43] T19 folio 58.

[44] T44 folio 141.

38.     I accept Dr Battlay’s evidence that in the absence of any wasting in Mr Jamieson’s left thigh and calf it is reasonable to expect that he would not experience difficulty walking distances in excess of 1 kilometre.  Dr Harvey-Sutton’s findings in 1997 are consistent with that opinion: Dr Harvey-Sutton found no wasting in Mr Jamieson’s left thigh and reported that he would walk 1 kilometre, up to 3 times each week.  There is no evidence of any present wasting in his left leg, but Mr Jamieson asserts that he cannot walk more than 50 metres without a 5 to 10 minute rest.  On Dr Battlay’s evidence, those two propositions are inconsistent.  Objective clinical findings are to be preferred over Mr Jamieson’s unreliable evidence.  Thus, I do not accept Mr Jamieson’s assertion in relation to difficulty walking more than 50 metres.  The true extent of any pain or difficulty, if any, that Mr Jamieson experiences when walking, is unclear (and is obscured by his own unreliable accounts). 

39.     The difficulty assessing the degree of Mr Jamieson’s permanent impairment is not assisted by the ambiguous language used in the Guide.[45]  The ‘difficulty with distances’ criterion, as has often been noted in previous decisions of this Tribunal, is imprecise and unclear.  It refers to ‘difficulty’, more than de minimus, walking distances that a man of Mr Jamieson’s age, unaffected by injury, could be expected to walk without difficulty. 

[45] See Comcare v Fielder (2001) 115 FCR 328, at [22] and [26].

40.     Essentially, there is no reliable evidence that is sufficient to establish, on the balance of probabilities, that Mr Jamieson has difficulty with distances.  In that regard, his case is not made out.  It is possible that he has difficulties walking distances, but mere possibility is not sufficient and nothing more is established on the evidence before me. 

41.     His case is not assisted by Dr Phillips’ report in 1999.  As can be seen, Dr Phillips’ clinical findings are not consistent with other more recent clinical findings.  It is to be noted that Dr Phillips did not report on the permanence of Mr Jamieson’s claimed impairments at that time.  Dr Phillips’ report must be considered in relation to all the medical evidence.  The assessment of the degree of Mr Jamieson’s permanent impairment is not frozen in time as of 1999 but must be assessed presently in relation to his claim.  There is no recent medical evidence concerning Mr Jamieson’s present degree of permanent impairment.  Thus, one must do the best with the available evidence when evaluating Mr Jamieson’s assertions concerning his present impairments.

42.     I am not persuaded that Mr Jamieson is limited to walking on level surfaces – a criterion that applies to the 30 percent level of impairment under Table 9.5.  There is no evidence to support that proposition.  His own evidence concerned purported difficulties with grades, steps and distances.  The case in relation to level surfaces is not made out.  Nor am I satisfied that Mr Jamieson has difficulty with distances – a criterion that applies to the 20 percent level of impairment.  The reliable medical evidence suggests that Mr Jamieson is unlikely to experience difficulty walking distances of 1 kilometre.  That would be consistent with what may be expected of a man of Mr Jamieson’s age without impairment (although no evidence was adduced on this point).  Nevertheless, Mr Jamieson’s assertion concerning difficulty walking distances rises without corroboration or support.  His evidence on this point is unreliable.  The case in relation to difficulty with distances is not made out.

43.     I am reasonably satisfied that it is more likely than not that Mr Jamieson can rise to standing position and walk, but experiences difficulties with grades and steps – criteria that apply at the 10 percent level of impairment under Table 9.5 of the Guide.  That finding is supported by the preponderance of the medical evidence (Dr Battlay, Dr Hopkins and Dr Phillips). 

44.     Thus, I find that Mr Jamieson’s permanent impairment in relation to lower limb function and difficulty with perambulation as a result of his left knee injury is consistent with a 10 percent whole person impairment under Table 9.5 of the Guide.

45.     The degree of Mr Jamieson’s permanent impairment as a result of his left knee injuries is 10 percent under Table 9.2 or 10 percent under Table 9.5.  Neither Table is more favourable and there is no basis to combine both assessments – only one Table may be applied in the present circumstances.  Thus, Mr Jamieson has a 10 percent whole person impairment as a result of the injuries to his left knee.

46. Mr Jamieson previously received compensation for a 10 percent whole person impairment to his left knee. His present whole person impairment is 10 percent. It follows that the degree of Mr Jamieson’s permanent impairment as a result of his left knee injuries has not increased by 10 percent or more and he is not entitled to further compensation pursuant to s 24 of the SRC Act at this time.

47.     Thus, the decision under review must be affirmed.

I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

Signed:       ...signed........................................................
  Jane Gribble
  Associate

Date of Hearing  22 February 2008
Date of Decision  14 March 2008
Representative for the Applicant  Andrew Jamieson
Counsel for the Respondent        John Wallace
Solicitor for the Respondent        Stuart Marris
  Sparke Helmore Lawyers