Johnston and Comcare
[2000] AATA 970
•6 November 2000
DECISION AND REASONS FOR DECISION [2000] AATA 970
ADMINISTRATIVE APPEALS TRIBUNAL )
) Q1999/1380
GENERAL ADMINISTRATIVE DIVISION )
Re AMANDA JOHNSTON
Applicant
And COMCARE
Respondent
DECISION
Tribunal Miss WJF Purcell (Senior Member) Dr KP Kennedy, OBE (Member) Mrs HM Pavlin (Member)
Date6 November 2000
PlaceBrisbane
Decision The Tribunal, by majority, affirms the decision under review.
..............................................
(Sgd) WJF Purcell
Senior Member
CATCHWORDS
COMPENSATION – Liability accepted and compensation paid for the applicant's knee condition on the basis of a 10% whole person impairment – applicant disputed the impairment rating – whether the applicant fell within the definition of 20% whole person impairment with respect to the lower limb
Safety, Rehabilitation and Compensation Act 1988 ss 24, 27
REASONS FOR DECISION
Miss WJF Purcell (Senior Member) Dr KP Kennedy, OBE (Member)
This is an application for review of a decision of a delegate of Comcare in the Military Compensation and Rehabilitation Service, of 25 October 1999, which affirmed a decision of a delegate, of 10 June 1999, that compensation was payable to the applicant in respect of permanent impairment, arising from a right knee injury, calculated at 10% whole person impairment pursuant to the Safety Rehabilitation and Compensation Act 1988 (the Act).
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents), together with the exhibits tendered by the parties. Mr R Hume of Counsel, appeared for the applicant who gave oral evidence and called Dr AD White, Orthopaedic Surgeon and Ms Bertoldi, Occupational Therapist, who gave evidence by way of telephone link up. Mr A Johnson of Counsel, represented the respondent (Comcare), which called Dr Grant as a witness and called also Dr Naughton and Mr Becht, Physiotherapist, who both gave evidence by way of telephone link up.
The applicant is 24 years of age. She joined the Australian Regular Army (the Army) on 20 February 1996, and was employed as a driver at a number of Army barracks. On 23 May 1997 she sustained an injury to her right knee whilst unloading a "unimog" vehicle. Throughout June and August 1997, the applicant underwent medical examination and treatment. On 9 February 1998, liability was accepted for "dislocation of the right patella". Her medical discharge took effect as of 31 December 1998.
The applicant lodged a claim for lump sum compensation, and subsequently on 17 March 1999 she was advised that her impairment had been assessed by Dr Grant, at 10% whole person impairment. The amount of lump sum compensation that would be payable based upon this impairment was $21,961.92. On 8 June 1999 she accepted the offer formally through her solicitors, and on 10 June 1999 the delegate determined that the degree of impairment was 10%. On 29 June 1999 the applicant's solicitors requested that her level of impairment be re-assessed at 20% whole person impairment, in the light of the report from Dr White, dated 5 May 1999, and a report from Ms Bertoldi, occupational therapist, dated 18 June 1999. On 25 October 1999 the delegate affirmed the original determination.
There is no dispute between the parties as to the nature of the applicant's injury, and that it is one that entitles her to compensation for permanent impairment under the Act. The issue is whether the applicant's knee condition is such that it can be said to attract a rating of 20% under either Table 9.2 or Table 9.5 of the Guide to the Assessment of the Degree of Permanent Impairment (the Guide).
Section 24 of the Act which provides for the payment of compensation in respect of an injury resulting in permanent impairment reads in part as follows:
"24. (1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee's condition;
(c) whether the employee has undertaken all reasonable
rehabilitative treatment for the impairment; and
(d) any other relevant matters.
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(7) Subject to section 25, where Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section…"Where compensation is payable pursuant to section 24 of the Act, there is provision also for the payment of additional compensation in respect of non-economic loss pursuant to section 27 of the Act which provides:
"27. (1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
(2) The amount of compensation is an amount assessed by Comcare under the formula:
($15,000 x A) + ($15,000 x B)
where:
A is the percentage finally determined by Comcare under section 24 to be the degree of permanent impairment of the employee; and
B is the percentage determined by Comcare under the approved Guide to be the degree of non-economic loss suffered by the employee."
The relevant Tables of the Guide for the purposes of this review, are tables 9.2 and 9.5 which as far as is relevant read:
"Table 9.2 Lower Extremity
(Percentage Whole Person Impairment)
Assessment is in accordance with the range of joint movement. X-rays should not be taken solely for assessment purposes.% DESCRIPTION OF LEVEL OF IMPAIRMENT…
0 X-ray changes but no loss of function of hip, knee or ankle
OR
Ankylosis or lesser changes in any toes except the first hallux5 Loss of less than half normal range of movement of ankle
10 ANY ONE of the following:
. loss of less than half normal range of movement of hip or knee
. loss of half normal range of movement of ankle
. ankylosis of first hallux15 Loss of more than half normal range of movement of ankle
20 ANY ONE of the following:
. loss of half normal range of movement of hip or knee
. ankylosis of ankle…Table 9.5 Limb Function – Lower Limb
(Percentage Whole Person Impairment)% DESCRIPTION OF LEVEL OF IMPAIRMENT
10 Can rise to standing position and walk BUT has difficulty with grades and steps
20 Can rise to standing position and walk but has difficulty with grades, steps and distances…."
The applicant submits that because of her right knee injury she is unable to walk anywhere near the distance a normal healthy person of a similar age could walk. Before the accident she would walk up to 15 kms without difficulty. She is able to walk now only a few hundred metres before a sharp shooting pain which starts behind the knee moves to the front of the knee, and she can walk no further. She maintains that she has difficulty with grades, steps and distances and that her condition has resulted in a 20% whole person impairment in accordance with Table 9.5 of the Guide.
Comcare argues that in accordance with general principles, where both Tables 9.2 and 9.5 are applicable, the decision maker must assess the degree of permanent impairment under the Table which yields the most favourable result to the employee. In this matter, Table 9.5 is the applicable table and on the medical evidence, there is no finding of "difficulty" in the sense of immediate pain which prevents the action of walking taking place. The onset of pain comes at a later juncture, after 1½ to 2 kms of walking. Comcare submits that there is no evidence corroborated by medical opinion, to support the view that the applicant suffers from a significant "difficulty", in the sense of immediate onset of pain which would attract the higher impairment level of 20%; the appropriate level of impairment it maintains, is in the applicant's case 10%.
The applicant gave oral evidence. She was a pleasant and co-operative witness. She said in evidence however, that at all times the doctors had asked her how far she thought she could walk, and not how far she could walk. She said that she thought that as she used to be able to walk 15 kms, she should be able to walk 2 kms; but that she never tested how far she could walk. We found her evidence on this topic not credible. She told her treating rehabilitation doctors in 1998 that she could walk 2 kms on the flat. She told Dr Grant in February 1999 that she could walk 2kms, and Dr White in April 1999 that she could walk one and half kms before the knee became painful. Both of these medical practitioners examined the applicant for the sole purpose of assessing her level of permanent impairment – a purpose of which she was acutely aware having been referred to Dr Grant by the Department, and to Dr White by her solicitors. We do not accept her evidence that neither of these medical practitioners asked her how far she could walk, but asked only how far she thought she could walk. We consider that the applicant told the doctors she could walk 1 ½ - 2 kms because she can walk this distance before the onset of pain. It is only now that she maintains that these answers were only an estimate. This does not mean that we reject all of the applicant's evidence, but that we look to other more acceptable testimony to corroborate her evidence, and to support our findings of fact in important areas.
The other witnesses were health professionals, all of whom were suitably qualified and gave objective and careful evidence; but we prefer the evidence and opinions of Drs Naughton and Grant, and Mr Becht in any area of dispute in the medical evidence.
On 28 November 1998, Dr Naughton, a member of the Assessment and Rehabilitation team at 2nd Field Hospital at Enoggera, reported in part as follows:
"Pte Johnston has been classified Med Class 4 because of a right knee joint RKJ disability. After suffering recurrent dislocation of the patella of the RKJ she underwent an operation on 11 August 1998 to stabilise the patella (tibial tuberosity transfer).
The present situation is that she has very limited mobility: she can walk on the flat for 2 kms but the RKJ would be quite painful especially at the end of the day. She experiences difficulty in ascending/descending stairs and walking up hills.
Pte Johnston has increased in weight from 75kg to 105kg and this will require attention. In fact she reports the loss of 5kg. She is very concerned about the surgical scar on her knee and she is having treatment for this.
Health requirements:Vocational: predominantly sedentary
Weight reduction/aerobic fitness programme under the supervision of physiotherapist/dietitian."
Dr Naughton, who was called by Comcare, said in evidence that for the applicant to have been able to walk 2 kms at that time (November 1998), some 2 months after the operation, was encouraging. He would have expected that by the time of the Hearing the applicant would have been able to walk at least 5 kms without experiencing undue difficulty or pain. Dr Naughton said also, that he had hoped that the surgery would produce a good result and good function. He was disappointed that whereas the applicant had been able to walk 2 kms in 1998, she says in her statement dated 28 April 2000 [Exhibit A1], that she has difficulties walking a short distance. This, he said, was not the result that he and the other member of the Rehabilitation Team had anticipated.
Mr Becht, rehabilitation counsellor and physiotherapist who was the other member of the Rehabilitation Team at Enoggera, evaluated the applicant on 24 November 1998, and reported that her walking was limited, particularly on sloped ground to around 2 kms. Stairs were managed with some difficulty, and the applicant limped and relied on rails for support. Comcare called Mr Becht, who said in evidence that he observed the applicant as she walked for 10 minutes on flat ground. He said also that the applicant was limping towards the end of the 5 minute treadmill test with a speed of 5 kms per hour. Climbing stairs was painful and that activity was ceased within 3 minutes of commencement. Mr Becht anticipated that the applicant would have problems in the future after walking 3-4 kms; and also on slopes and stairs.
The applicant gave evidence that before the accident she played softball, netball, and partook in normal Physical Training exercise in the Army. Her active lifestyle has been restricted since the accident. She does not play any sport, finds exercising difficult and knee pain affects all her domestic activities. She described, in evidence, a typical shopping outing to Westfield Shopping Centre at Strathpine, and how she experiences pain in the knee after walking 150 to 200 metres in the direction of the Myer store. The pain increases, she says, as she walks through Myer's and by the time she walks to Woolworths she experiences pain from the back radiating to the front of the knee with every step she takes. She is able, however, to push the shopping trolley along the 16 aisles, each of which is about 20 metres long. The applicant said that by the time she has finished her shopping she would put her pain level at 8 on a scale of 1 to 10.
The applicant called Dr White, orthopaedic surgeon, who examined her on 27 April 1999 and reported, in part, that the applicant had stated that she continued to have difficulty with stairs, (particularly ascending), difficulty with slopes and that the knee becomes painful if she walked for more than about 1½ kms. Dr White was of the opinion that the applicant's level of impairment under Table 9.2 was ten percent (10%) and that "the level of impairment according to Comcare Table 9.5 is, on symptomatic grounds, twenty percent (20%)".
Dr White said in evidence that as to the term "symptomatic grounds" it was the applicant who had told him, as an element of the history of the matter, that the knee became painful if she walked 1½ kms. In relation to his assessment in accordance with Table 9.5 Dr White said that there is no objective criteria, a medical practitioner relies upon what the patient describes as her problems, and the assessment is made accordingly. He said also, that he regarded the applicant's increased weight as not relevant, as far as Table 9.5 was concerned but that her long term prognosis might be affected by her weight.
The applicant called also, Ms Bertoldi, occupational therapist, who evaluated her on 17 June 1999, in accordance with Tables 9.2 and 9.5 of the Guide. She reported on 18 June 1999 that the applicant had undertaken the following activities, in the following order:
(1) Stair climbing up and down a flight of 5 steps 7 times in 1.14 minutes
(2) Grades – walking a distance of 120 metres up and down a 15 metre ramp with a grade of 1:6, 4 times, in 1.37 minutes.
(3) Walking 272 metres on level ground – 8 repeats of 34 metres in 5.43 minutes.
Ms Bertoldi summarised the applicant's overall level of lower limb impairment in the following terms:
"Can rise to standing position and walk but has difficulty with grades, steps and distances."
The description of level of impairment accords with 20% under Table 9.5 of the Guide.
Ms Bertoldi in her oral evidence outlined the details of the activities undertaken, and that the applicant herself decided that she had "had enough" and could not complete the activities in full. For the purposes of Ms Bertoldi's assessment the applicant was required to undertake stair climbing followed immediately on a graded ramp in a period of 2 minutes 51 seconds, and walking then on level ground for 5.43 minutes. In our view the sequence of activities that the applicant was required to undertake resulted in a subjective response which did not reflect the applicant' s actual walking ability. On her own evidence, the applicant is able to walk distances far in excess of that which she undertook for Ms Bertoldi. She walks considerable distances over a protracted period of time during her regular shopping trips to Westfield Shopping Centre In addition, on the evidence of other Health Professionals, which we accept, the applicant can walk 1 ½ to 2 kms before the knee becomes painful.
Comcare called Dr Grant, Commonwealth Medical Officer who examined the applicant on 8 February 1999 and reported in part as follows:
"Symptoms
Ms Johnson states that the right knee is painful five days in seven. She applies ice on the nights that it is painful. The claimant reports that she cannot run or squat but she can walk about two kilometres on level ground before anterior knee pain becomes noticeable. The three stairs in her house do not pose a problem but she reports difficulties with a flight of stairs. There is pain on inclines and she proceeds with caution on uneven ground.
The claimant attends lectures every day but the course has not involved any fieldwork to date. Ms Johnston states that she is able to cope with the laundry but she relies on her husband to shop for groceries. They share cleaning the house. She has ceased squash, recreational running and indoor netball since the injury. The knee does not give way, lock or dislocate. The ankle swells from time to time.
Clinical findings
Ms Johnston has a body mass index of 35.6 based on a weight of 103 kilograms and a height of 1.70 metres. There is a curvilinear thirteen centimetre long scar extending from infra-patellar ligament down the antero-medial aspect of the right leg. The claimant reports partial loss of sensation lateral to that scar but not elsewhere.
…
Clark's test (patellar grinding) is positive whilst McMurray's test causes retropatellar pain only. The cruciate and collateral ligaments are stable. Extension is to full range with effort whilst flexion is restricted by 5 degrees.
There are no apparent difficulties with walking on level ground and no walking aid is used or brought to the interview. She limps when on stairs and relies on the handrail. Walking on inclines and uneven grounds is not tested due to rain." [T37/71-2]
In relation to the Guide, Dr Grant stated in answer to Question 7.
"Using Tables 9.2 and 9.5 what percentage whole person impairment does the claimant currently suffer?
"As there is a minor restriction of range of movement, the recommended value from Table 9.2 is 10% whole person impairment.
The recommended value from Table 9.5 is 10% whole person impairment in view of the difficulties with stairs, inclines and uneven ground, even when allowance is made for the effects of an increased body mass index and bilateral genu valgum.
No additional value is recommended for the partial loss of sensation with reference to the AMA Guides to the Evaluation of Permanent Impairment (fourth edition)." [T37/73]
The applicant was questioned in examination in chief as to the information she had provided to Dr Grant. Page 11 of the transcript reads in part:
"…
MR HUME: What about at the week-ends, is there anywhere when you go out – when you go to the movies, for instance?---Mm.
How sort of – what sort of distances would you walk? ---It's not a great deal. I think the most would be from the car park to the shopping centre or cinema complex, 500 metres at the most.
All right. There's a number of distances have been quoted, as you probably heard, where you've spoken to many practitioners in one form or another. You recall speaking to Dr Grant? ---Yes.
Now, it's right you told him you could walk about two kilometres, is that correct? ---Yes, at the time that was – that was what - - -
Had you tested that yourself? ---No. I had no idea the impact that it had on my life. I just – I think mentally I thought, well, I could walk, you know, 15 kilometres why possibly I can't walk two kilometres. And it was put on me, "Well, how far can you walk?" And I was like, "I don't know." And it was, like, one, two kilometres. I'd say, "About two kilometres."
All right. And you are saying now that you've never tested that? ---Never…."
Dr Grant gave evidence that the applicant told him that she started noticing that the knee was painful after she had walked 2 kms. Dr Grant said that the applicant did not complain to him that the knee clicked or locked, nor that it "gave way" as noted by Dr White, in his report of 27 April 1999. Dr Grant was of the view that a healthy, fully fit 23 year old person, in the military, should be able to walk 10 kms without difficulty; whereas a normal healthy office worker might be able to walk 2 to 5 kms depending on fitness. Dr Grant said that even if the applicant can walk only 2 kms, before the knee becomes painful, he would not consider that a sufficient restriction to be regarded as "difficulty" with distances for the purposes of Table 9.5 of the Guide.
We do not accept the applicant's evidence that when she answered "1 ½" or "2 kms" to the medical practitioners' questions this was merely an estimate of how far she thought she could walk. We prefer the evidence of Drs White, Grant and Naughton, and Mr Becht, and are satisfied that the applicant can walk 2 kms before the knee becomes painful. We accept the opinion also, of Dr Grant that even if the applicant can walk only 2 kms before the knee becomes painful, this is not a sufficient restriction to be regarded as "difficulty" with distances, for the purposes of Table 9.5 of the Guide.
We are satisfied on the whole of the evidence that the applicant can walk but has difficulty with grades and steps, and that the appropriate level of whole person impairment in accordance with Table 9.5 of the Guide is 10%.
For these reasons the Tribunal affirms the decision under review.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Miss WJF Purcell (Senior Member) and Dr KP Kennedy, OBE (Member)
Signed: Liam Cusack .....................................................................................
AssociateDate/s of Hearing 12 July 2000
Date of Decision 6 November 2000
Counsel for the Applicant Mr R Hume
Counsel for the Respondent Mr A Johnson
REASONS FOR DECISION
Mrs HM Pavlin (Member)
In writing this minority decision, I adopt without reservation paragraphs 1-9 of the majority decision.
One of the things which became an issue during the hearing was the way the applicant dealt with questions from examining doctors concerning how far she was then able to walk. The applicant's explanation for how she arrived at a figure of 2 kilometres appears at page 11 of the transcript and is quoted in paragraph 24 of the majority decision. I include it again here, as, in my view, it provides the key to understanding discrepancies between opinions, observations and reports in this matter. The passage is an excerpt from examination in chief:
"…
MR HUME: What about at the week-ends, is there anywhere when you go out – when you go to the movies, for instance?---Mm.
How sort of – what sort of distances would you walk? ---It's not a great deal. I think the most would be from the car park to the shopping centre or cinema complex, 500 metres at the most.
All right. There's a number of distances have been quoted, as you probably heard, where you've spoken to many practitioners in one form or another. You recall speaking to Dr Grant? ---Yes.
Now, it's right you told him you could walk about two kilometres, is that correct? ---Yes, at the time that was – that was what - - -
Had you tested that yourself? ---No. I had no idea the impact that it had on my life. I just – I think mentally I thought, well, I could walk, you know, 15 kilometres why possibly I can't walk two kilometres. And it was put on me, "Well, how far can you walk?" And I was like, "I don't know." And it was, like, one, two kilometres. I'd say, "About two kilometres."
All right. And you are saying now that you've never tested that? ---Never…."
Dr Grant, a general practitioner who gave his position at the time of the hearing as Senior Medical Officer, Compensation (Queensland) Veterans' Affairs, gave evidence before the Tribunal.
Dr Grant is experienced in making Comcare assessments. He gave evidence of his clinical findings and also of his observations of the applicant in some test situations, including walking about ten metres on carpet along a corridor without difficulty and climbing 16 stairs making use of a hand-rail. He acknowledged that rain had prevented his observing her walking in a safe area outside Victoria Barracks which included inclines and uneven ground, but stated that it was not necessary for him to do more, as the test concerned difficulty and not duration.
In cross-examination, Dr Grant acknowledged that, in relation to pain, he "would have suggested a figure" to which she agreed, and that he would "probably" have offered her a range of distances for her to select one, though he was naturally unable to recall his questions specifically. He thought he was unlikely to have asked her if she had ever walked two kilometres since the accident.
Senior Member Purcell had already clarified with the applicant herself at an earlier juncture that she had not proffered the information to any of those examining her that she had never walked two kilometres since the accident or since the operation. Her reply to the Senior Member's question was, "No, Ma'am, I should have." This observation made on her part was no doubt quite correct.
The applicant stated her recollection that, while doctors always asked her how far she could walk, they never sought details concerning how she felt at various stages of distance such as after 500 metres of walking.
While understandably unable to recall the precise wording of his actual questions, Dr Grant referred, amongst other things, to three areas of questioning which he regularly pursues and stated that he "would have asked" how far she could walk or how far was it before she had to stop walking on level ground. I accept this, and do not believe he or others can be held responsible if Ms Johnston's interpretation of such questions was, as she told us, "How far do you think you can walk?" I do also accept, however, that it was a thought process such as this which led to Ms Johnston giving the replies ("estimates") she gave during examinations at that time.
Dr Grant was unable to comment on what was put to him as an inconsistency in Paragraph 9 of the applicant's statement concerning specific deterioration of her condition, as he had examined her on a date subsequent to that referred to in paragraph 8.
He was clear that his records showed no mention of the applicant having given him the information contained in paragraphs 12,13 and 14 of her Statement.
Relying in this context on the applicant's own comment specifically in relation to her examination by Dr Grant, "I had no idea the impact it had on my life". I note the date of that examination was 9 February 1999 and the date of her statement prepared for this hearing was 28 April 2000. I do not find it surprising that 14 months later she had a far clearer idea of "the impact it had on [her] life."
I accept the applicant's evidence that, in responding to questions as to how far she could walk, her answer of two kilometres was based on an estimate rather than tested experience, and that this estimate was based on nothing more precise that the subjective discrepancy she experienced between her previous capacity to walk 15 kilometres and her subsequent vastly diminished capacity. By her own admission, she did not specifically try herself out to ascertain her actual capacity.
Turning now to the evidence taken from occupational therapist, Ms Bertoldi, Ms Bertoldi states that "the assessment was performed in accordance with Tables 9.2 and 9.5 from the Comcare Guide to the Assessment of the Degree of Permanent Impairment."
The fact that the test, used in its entirety, is concerned with a person's safe ability to return to work, does not appear to be in any way a limiting factor of its usefulness to us who are concerned with establishing a person's degree of compensable injury rather than capacity to return to work. Indeed, in this instance, Ms Bertoldi points out that: "the complete test was not performed and therefore no conclusions can be drawn with regard to your client's ability to return to work." [T45, p2]
Ms Bertoldi's report gives the credentials of the test she used, describing it as one which "has had substantial reliability and validity research conducted over a 5 year period" and is "the only evaluation of its kind to be so thoroughly tested prior to marketing." [T45, p2]
Mr Johnson, for Comcare, cross-examined Ms Bertoldi as to whether the walking exercise would have been affected by doing the stair-climbing and grades tests first, to which Ms Bertoldi replied that, ideally, she would have done the three tests independently, in which case she would probably make the client walk further, but she did not agree that the results were skewed. Only brief periods were spent on stair-climbing and slopes. The "deviations" which were recorded in detail "would normally appear anyway."
I do not share the concern of the majority of the Tribunal, expressed in paragraph 21 of their decision, that the test is impaired by any subjective element. In fact, Ms Bertoldi scored the client's self-assessment as a Self Assessment Score of A, which is defined in her report on page 2 of T45 as "client and therapist agree that client has reached a safe maximal effort." In her summary under the heading Overall Client Participation, Ms Bertoldi concludes with the comment: "Ms Johnston participated fully in all tasks" [T45, p5]
Rather, my concern focuses on the limited corroborative medical opinion for what impresses me as a carefully documented set of observations by an expert in the area who summarises her assessment of Ms Johnston's overall level of lower limb impairment with the following statement:
"Can rise to standing position and walk but has difficulty with grades, steps and distances." [T45, p6]
I attribute this in part to the evidence already alluded to above, that Ms Johnston's responses to questions from doctors concerning her ability to walk distance were offered in a compliant if unwise attempt to furnish an answer which she did by forming an estimate in the manner she has described.
Of the doctors called to give evidence, Dr Grant thought the limitations inherent in his observation of the applicant's walking did not impair his assessment. Nevertheless the fact that he did not observe the applicant walking any significant distance limits the reliance I place on his opinion concerning whether she has difficulty with distance.
Both Dr Naughton, a general practitioner specialising in rehabilitation, and Mr Becht, physiotherapist and rehabilitation counsellor, conducted their assessment in a rehabilitation context with some focus on functional capacity and rehabilitation needs. Mr Becht clarified, in giving his oral evidence, that his focus was on establishing a guide for the applicant's future vocational activities and was in no way medico-legal. Dr Naughton, who said he had not seen Ms Johnston since she left the Army, confirmed Mr Hume's suggestion that the purpose of his investigation had been "purely rehabilitational". This is borne out by the nature of his comment on the level of difficulty reported by the applicant in paragraph 9 of her statement, when he said that it would be "very serious if she has that difficulty now" and that this would not be a good result. He appeared to use the terms of reference of a rehabilitation team member, referring to the two kilometre walking capacity as something that "would have been very encouraging post-operatively" and said that he "would have hoped" for a capacity to walk unlimited distances or at least five kilometres without undue difficulty or pain. This I accept as the assessment of a medical practitioner who was interested in monitoring recovery and rehabilitation as distinct from someone assessing compensable impairment. When asked, he did say he thought two kilometres could be a reasonable distance to have hoped she could walk, and that if she was now having difficulty, it was not a good result.
While Dr Naughton's comments were hypothetical, in the sense that he had not recently examined the applicant, his use of terms such as "very serious" and "not a good result" gives some indication of an assessment of the condition not incongruent with that of Dr White who did have the opportunity to examine her more recently. This is relevant in relation to Dr Grant's statement, referred to in the majority decision, that even if she can walk only two kilometres before the knee becomes painful, this is not a sufficient restriction to be regarded as "difficulty" with distances for the purposes of Table 9.5 of the Guide.
Orthopaedic surgeon, Dr White stated in his report:
"She continues to have difficulty with stairs, particularly ascending, slopes and said that the knee becomes painful if she walks for more than about 1½ kilometres"
[T41, p2]
He then made the following statement as part of his opinion:
"The level of impairment under Comcare Table 9.2 is ten percent (10%)"
"The level of impairment according to Comcare Table 9.5 is, on symptomatic grounds, twenty per cent (20%)"
In giving his oral evidence, he clarified his use of the term "symptomatic grounds", saying that you have to rely on what the patient tells you and that there are no objective criteria or signs as distinct from symptoms as far as Table 9.5 is concerned. Even if a person is observed, assessment will still be very subjective, he said.
In this particular case, he saw no inconsistency between the history given and his examination of the applicant.
In all the circumstances outlined above, including some doctors relying on data they understandably took to be reported fact rather than untested estimate, and the clarification which has since emerged, I have relied on the evidence of Dr White, orthopaedic specialist, Ms Bertoldi, occupational therapist, and that of the applicant herself whose credibility I accept. As a result of this process, the decision I have reached is different from that of the majority of the Tribunal.
I am satisfied on the whole of the evidence that the applicant can rise to standing position and walk but has difficulty with grades, steps and distances, and that the appropriate level of whole person impairment in accordance with Table 9.5 of the Guide is 20%.
For these reasons I would set aside the decision under review and substitute the decision that the applicant has a 20% whole person impairment.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs HM Pavlin (Member)
Signed: Liam Cusack .....................................................................................
AssociateDate/s of Hearing 12 July 2000
Date of Decision 6 November 2000
Counsel for the Applicant Mr A Hume
Counsel for the Respondent Mr A Johnson
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