Kelly and Comcare
[2002] AATA 553
•8 July 2002
DECISION AND REASONS FOR DECISION [2002] AATA 553
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/592
GENERAL ADMINISTRATIVE DIVISION )
Re AMANDA LOUISE KELLY
Applicant
And COMCARE
Respondent
DECISION
Tribunal Ms J Cowdroy, Member
Date8 July 2002
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
..................(Sgnd).................
Ms J Cowdroy
Member
CATCHWORDS
WORKERS COMPENSATION - permanent impairment – left knee injury in course of employment – compensation payments made –whether injury to right knee warrants an impairment rating - whether impairment to be assessed under Table 9.2 or Table 9.5 of the Guide to the Assessment of the Degree of Permanent Impairment - "difficulty" – "distances" - difficulty with grades, steps and distances – whether impairment found
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Re Whelan and Department of Defence (1997) 47 ALD 383
Re Johnston and Comcare [2000] AATA 970
Re Van Grinsven and Comcare (2001) 33 AAR 531
Re Curtis and Australia Postal Corporation (AAT No 10098, 30 March 1995)
Re Johns and Department of Defence (AAT No 13357, 8 October 1998)
REASONS FOR DECISION
8 July 2002 Ms J Cowdroy, Member
This matter was heard in Brisbane on 12 December 2001 and on 1 March 2002. The applicant was represented by Mr PWG Hume of Counsel, instructed by D'Arcys Solicitors, and Mr C Clark of Counsel, instructed by Blake Dawson Waldron, appeared for the respondent.
The T-documents were admitted into evidence as A1 pursuant to the provisions of the Administrative Appeals Tribunal Act 1975. Also admitted into evidence was an undated statement of the applicant, which was marked A2.
The applicant gave evidence as did Dr J Pentis and Ms J Bertoldi on her behalf. Dr P Boys gave evidence for the respondent.
BACKGROUND TO THE APPLICATION:The applicant was formerly a member of the Australian Army. In September 1998 she lodged a claim for rehabilitation and compensation in relation to left anterior knee pain and right (T37).
In October 1998, a delegate under the Safety Rehabilitation and Compensation Act 1988 ("the Act"), determined that the applicant suffered bilateral chondromalacia patellae and patella maltracking (surgical intervention on left and planned for the right knee) (hereinafter collectively called "the knee condition"), on the basis that her military service contributed in a material degree, namely "training by running in boots and load carrying" (T46). The date of the injury was determined to be 23 July 1997, which is the date that the applicant first sought treatment for the condition.
The applicant lodged various benefit elections forms claiming a lump sum in respect of permanent impairment, in respect to her bilateral knee condition, including a reference on some of those claims to "surgical intervention (l) knee. Further, on about 6 April 2000, the applicant submitted a benefit election form, specifically seeking a lump sum payment of compensation in respect of permanent impairment to the right knee.
On 16 June 2000, the respondent determined that the applicant suffered a whole person impairment of 10 per cent as a result of her left knee condition. The amount of compensation payable was assessed at $21,445.19, which consisted of amounts under ss 24 and 27 of the Act. The right knee condition was assessed at 0 per cent. In respect to the claim for lump sum payment of compensation for the right knee, this was refused (T63). (See also T64, a letter dated 27 November 2000, clarifying the earlier decision).
On 5 June 2001, the delegate, upon reconsideration of the evidence, affirmed the determination on the basis that there was no assessable impairment referable to the right knee, utilising Table 9.2. Further, it was contended that even if it was accepted that the applicant suffered a 10 per cent whole person impairment under Table 9.5, for the right knee, she was not eligible to be paid a further amount under that Table as she had already been paid 10 per cent whole person impairment under Table 9.5 for the left knee. This decision is the subject of review by the Tribunal.
EVIDENCE OF THE PARTIES:Ms Kelly gave evidence. Her statement (undated but prepared in about October 2001) was before the Tribunal as exhibit A2. Essentially, she enlisted in the Australian Army in 1991 at the age of 17 years, and her occupation was that of medical assistant, also described as enrolled nurse. She began to experience knee problems mostly in the form of pain, at the end of 1995, after being posted to 6 Base Area Support Battalion ("6BASB") at Enoggera. The PT sessions in that unit were more physically demanding than had been the case in her previous posting. The unit undertook a lot of battle PT, involved considerably more "hill work" and there was not sufficient emphasis placed on warm up and stretching exercises.
The applicant described an extremely hard period of some nine months at Enoggera, during which time she was in constant pain in both knees. She used hot water bottles for pain relief and did not seek medical treatment because it would not have been viewed favourably.
At the end of 1996, she was posted to 2 Field Hospital and undertook a course in connection with promotion to Corporal at Singleton School of Infantry. She was one of six females and was expected to keep up with her male counterparts, undertaking battle PT in cams, boots and webbing. She also carried stretchers with 44-gallon drums on top.
At this point of time she suffered "really intense pain the knees". She did not seek medical advice because she did not want to be removed from the course.
Not long after returning to her unit, she attended a Medical Board in connection with her promotion to Corporal and told the medical practitioner examining her that she experienced knee pain. It was suggested that she probably suffered from patella tendonitis. She was made FE (fit everywhere) which means her career was unrestricted, in that she could be considered for promotion and postings to any region. The applicant also referred to it as a Class 1 fitness rating.
Ultimately, the applicant sought treatment from Col Peter Grant who diagnosed chondromalacia patella and placed her on restrictive duty. During this time she received physiotherapy and anti-inflammatory medication and when her symptoms did not improve she was referred to Dr M Johnstone, orthopaedic surgeon. Various surgical options were discussed and, on 16 June 1998, the applicant underwent surgery to her left knee. Her left leg was in a brace post-operatively for eight weeks. She described a feeling of uncertainty as to the stability of her left knee, even since surgery. Despite the surgery, the pain continued.
The applicant was downgraded to Class 2. She subsequently resigned from the Army with much regret, having realised that her opportunities for promotion were limited due to her knee problems. She believes her current employment as a nurse aggravates her knee pain, due to the need to stand for long periods. After discharge from the Army, the applicant attended University to study for a Bachelor of Nursing degree.
In respect to her present circumstances, the applicant mows the front and back lawn of her three-quarter acre property, with a ride on mower and a manual mower. She is able to push the mower on the front lawn, which is fairly flat, for about 45 minutes She formerly resided in a high set house and she found it difficult carrying her son up and down the stairs. When the family purchased a house after she left the service, they chose a low set home because of her and her husband's knee problems.
Grocery shopping causes problems because of the need to manoeuvre the shopping trolley. After a shopping expedition, her knees are painful. In respect to stairs, the applicant usually holds on a rail for support. She said she is unable to go for bush walks. She used to enjoy tennis, squash, netball, touch football and aerobics but none of these activities are now possible. She is restricted to swimming and walking activities. She walks about 2.6 kms about once a month with her dogs on a flat terrain. Walking on slopes is avoided.
Under cross-examination, the applicant acknowledged that her statement (A2) contains a reference to walking the dogs twice weekly. She explained that although this was the case when the statement was written, she walks less often now.
The applicant denied any problems with her knees during initial training at Kapooka. When it was pointed out to her that both Dr Pentis and Ms Bertoldi state that there was a history of knee problems since that time, she suggested that she told Dr Pentis that she first had problems with her shins at that time.
In respect to her ability to undertake household activities, the applicant's evidence was that she can garden for half to one hour, including pruning. She walks the dogs without difficulty if they walk with her in an orderly manner however, if they start pulling on their leads, the left knee gives way for a brief moment. However, it does not give way during normal activities.
On slopes, she experiences pain in her shins as well as her knees. Shin pain also occurs if she walks any distance. If required to carry articles of any weight up slopes, the problems are exacerbated. She could not explain the reference in Dr Pentis' report to her not being able to run for too long, and having difficulties with jumping and jogging, as she does not undertake those activities.
The issue of the applicant's left knee giving way was also the subject of considerable cross-examination, with the applicant providing a variety of responses as to whether that knee has locked up since surgery. She acknowledged that she probably told Ms Bertoldi that her left knee gave way on a regular weekly basis, She acknowledged that her statement contains a reference to the left knee still giving way quite often. However her oral evidence was to the effect that this was not the case since surgery. She does, however, consider the left knee to be unstable. Because the left knee has not improved significantly since surgery, she is not considering undergoing surgery to her right knee.
Ms J Bertoldi, occupational therapist, provided a report (T55) and gave oral evidence. She examined the applicant on 29 May 2000, and her report is based upon the history conveyed to her by the applicant, the information contained in other practitioners reports, including that of Dr Pentis dated 29 February 2000, and her observations of the applicant undertaking a range of activities, encompassing walking both on level ground and grades, and climbing stairs.
The reference in her report to Ms Kelly reporting the onset of bilateral knee pain during basic training in 1991 might have been information which Ms Bertoldi obtained from Dr Pentis' report, rather than directly from the applicant. The reference to the applicant's left knee giving way on a regular weekly basis was most likely information obtained directly from Ms Kelly.
In all activities, deviations from the normal response were noted, most commonly antalgic gait, decreased knee flexion, decreased range of movement in the ankles and decreased weight bearing on the left leg. The applicant climbed 100 steps, during which Ms Bertoldi observed a number of deviations in movement. In respect to grades, the applicant walked 7.5 times up/down a 15 metre ramp, with a grade of 1.6, after which she indicated an unwillingness to continue. Similarly, the applicant walked 350 metres on flat ground, after which she expressed an unwillingness to continue.
At the conclusion of those activities, Ms Kelly reported pain in her knees and shin at a level of 7, when rated on a scale of 1-10. Ms Bertoldi acknowledged that, in providing her assessment, she took into account decreased range of movement in both ankles, which she believed was related to a bilateral shin condition. Pain in the shins was also a limiting factor.
Ms Bertoldi stated that if only the right knee condition was present, she would still attribute a 20 per cent whole person impairment under Table 9.5
Dr J Pentis, an orthopaedic surgeon, practicing for the past twenty years, had prepared a report dated 29 February 2000 (T49). His assessment was based on information derived from the applicant about her symptoms, his observations and his expertise in assessing what one would expect a person would be able to do given the condition. He was questioned at length about the history given to him by the applicant, in particular his recording that the applicant stated that she first experienced problems with her knees at Kapooka.
The history also included a reference to the leg giving way, which Dr Pentis assumed to be a reference to the left leg. His mention of the applicant "not being able to run for too long" and "difficulty walking distances" was not qualified. In relation to activities such as squatting, he did not note whether one knee was worse than the other.
In relation to shin splints, Dr Pentis suggested that it is a problem commonly attributed to running, although the surgery that Ms Kelly had undergone on her left leg can cause shin splints. However, he acknowledged that the applicant had not undergone surgery to her right leg, yet suffered from shin splints in this leg.
In making his assessment, Dr Pentis considered both knees and the shin splints collectively on the basis that the shin splints "were part of the overall problem". There is no assessable loss of movement in relation to shin splints, so it is not assessed under Table 9.2, and is only relevant in establishing a rating under Table 9.5. On the assumption that only chondromalacia was present in the right knee, he would allocate 10 per cent whole person impairment under Table 9.5.
Dr P Boys, another orthopaedic surgeon, who had been practicing for some twelve years, gave evidence for the respondent. He examined the applicant on 26 April 2000 and his report forms T55. He stated that the knee pain from which the applicant suffered was very common and there is no doubt that it impedes the ambulatory process. The information contained under the heading "Current Complaint" was information which he obtained directly from the applicant.
On examination there was no loss of range of movement in either knee. He considered that the examination results were consistent with the symptoms reported by the applicant. In relation to Table 9.5, he referred to its interpretation being the subject of debate. His understanding was that that Table referred to the function of both limbs.
SUBMISSIONS OF THE PARTIES:Mr Hume submitted that there were a number of issues before the Tribunal, an outline of which was encompassed in written submissions. Namely:
Whether the 10 per cent whole person impairment ("WPI") awarded in respect of the applicant's left knee should be 20 per cent;
Whether the applicant should receive a WPI payment in respect of her right knee under Table 9.5.
He relied on the reports of Dr Pentis and Ms Bertoldi. He pointed to their opinions that each of the knees should be rated separately and each is separately compensable. The applicant suffers from injuries to two joints and it is appropriate that she is compensated in respect to each individual injury. He pointed to the notes and preamble to Table 9 which, he said, make it clear that the Tables contained therein are applicable to lower limb impairment In the singular sense.
Evidence from the reports of Dr Pentis and Ms Bertoldi indicate that the applicant has difficulty with grades, steps, and in particular, distances. In assessing "distance" regard must be had to the principles in the matter of Re Whelan and Department of Defence (1997) 47 ALD 383. The evidence demonstrates that the distance which the applicant is capable of walking without difficulty is not what one would expect from a normal healthy person of the same age, sex and general level of health.
In other matters, including the dissent judgment in Re Johnston and Comcare [2000] AATA 970, there has been no attempt to define what is meant by the term "distance" and it is therefore a matter to be decided on a case to case basis.
Support for the proposition that the impairment in the right knee warrants a rating is also found in the reports of Dr Pentis and Ms Bertoldi. If the Tribunal was to agree, then the matter falls within the principles in Re Van Grinsven and Comcare (2001) 33 AAR 531 which, at the time of hearing was on appeal to the Federal Court. (Subsequently, a judgement of the Full Court of the Federal Court in Comcare v Van Grinsven (2202) FCA 371 set that decision aside).
Even if the Tribunal was of the view that the ratings allocated by Dr Pentis and Ms Bertoldi should undergo some discounting due to the fact that they encompassed impairments in the form of shin splints and ankle problems, the ratings would still pass the threshold of compensable value in respect to the right knee.
Mr Clark submitted that the Tribunal should prefer the report of Dr Boys in preference to the reports of Ms Bertoldi and Dr Pentis. The latter opinions took into account ankle problems and/or shin problems and there was no evidence that either of these complaints were compensable
The respondent suggested that equally no reliance could be placed on the applicant's evidence, and in particular her history and description of symptoms as related to Dr Pentis and Ms Bertoldi. Both those practitioners relied on the accuracy of the stated history in providing their opinions.
The applicant's evidence as to the extent she was capable of pushing a lawn mower and the frequency of her walking the dogs, was cited as evidence of such inconsistencies. She acknowledged being able to push a mower for about 45 minutes and that she walked up to an hour in a park when she travelled overseas.
Ms Bertoldi had told the Tribunal that the reference to pain being greater in the left knee than the right knee was information she had gained directly from the applicant, as well as the left knee giving way on a regular weekly basis. She acknowledged that these matters were given considerable weight in her assessment. Also taken into account was the fact that the applicant suffered burning and numbness in both shins after minimal exercise.
In respect to stair climbing, the limiting factors were observed to be the knees as well as decreased ankle movement, amongst other things. In respect to walking and grades, one of the limiting factors was the lack of range of movement in the ankles. It was submitted that it was not appropriate to accept Ms Bertoldi's evidence that the right knee condition without having regard to shin pain or ankles would still warrant 20 per cent, in view of the fact that she had stated in evidence that the shin condition played a "major" role and that the decreased range of movement in the ankle was attributable to the shin condition.
Dr Pentis had not differentiated in the severity of symptoms in both legs and he also had regard to the presence of shin splints in his assessment. It was suggested that little weight should be afforded to his evidence in re-examination that taking the right knee condition in isolation, it would warrant a whole person impairment of 10 per cent. The contention was made that Dr Pentis' report was largely predicated on complaints which are not compensable.
The Tribunal was referred to the matters of Re Curtis and Australian Postal Corporation (AAT No 10098, 30 March 1995) in relation to the discussion on the interplay between Tables 9.2 and Table 9.5; and the interpretation of the term "distance" in Re Johnston and Comcare and Re Jones and Department of Defence (AAT No 13357, 8 October 1998). In Johnston, the majority opinion was that a walking distance of 2 kms was not sufficient restriction to be regarded as "difficulty" with distances. In Jones, the Tribunal considered that a distance of 2.4 kms on flat ground, with the benefit of Naprosyn, was regarded as "difficulty".
CONSIDERATION:
Section 24 of the Safety Rehabilitation and Compensation Act 1988 provides that where an injury to an employee results in permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
Section 27 of the Act provides for payment of compensation for non-economic loss. It is dependent for its operation on a finding that compensation is payable under s 24 of the Act.
The respondent has accepted that bilateral chondromalacia patellae and patella maltracking (surgical intervention on left and planned for the right knee) is an injury as defined under s 4(1) of the Act in a determination which is undated but appears to have been made in November 1999. By a determination dated 16 June 2000, the applicant was awarded a lump sum payment of compensation under ss 24 and 27 of the Act based on a 10 per cent whole person impairment under Table 9.5 for the left knee.
By claim dated 6 April 2000, the applicant sought lump sum compensation for her right knee. The delegate refused this claim on the basis that the weight of the medical evidence did not support the contention that the degree of permanent impairment in the right knee was 10 per cent or more.
Section 24 of the Act states in part that Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide. The term Guide in that context refers to the "Guide to the Assessment of the Degree of Permanent Assessment" and s 28(1) of the Act sets out the criteria by which the degree of permanent impairment and the degree of economic loss shall be determined.
In assessing the degree of permanent impairment of the legs (referred to as lower extremity), Table 9.2 is utilised. It sets out a range of percentage of whole person impairment based primarily on loss of range of movement. Table 9.5 considers the percentage of whole person impairment in terms of mobility.
It is not in dispute that where 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.
The applicant gave detailed evidence as to her knee condition, in regard to its onset, treatment and present symptomatology. The respondent suggested that the applicant's evidence was unreliable, in that she had provided an inconsistent, and at times, untruthful history to various medical practitioners who she has consulted in connection with her claim for compensation. Given the fact that she has had ongoing bilateral knee pain for many years, and was subject during the course of the hearing to very rigorous cross-examination, I did not consider that her evidence, generally speaking, could not be relied on.
However, there was one aspect of her evidence which I found it difficult to reconcile with the contemporaneous medical history and the history she related to medical practitioners who had examined her in connection with the claim under discussion. That issue relates to the severity of symptoms relating to the right knee, as opposed to the left knee. However, that aspect will be dealt with later in these reasons.
The Tribunal finds that the applicant enlisted in the Australian Army on 11 June 1991. She first became aware of problems with her knees late in 1995, namely bilateral knee pain, after commencing PT sessions, whilst based at 6 Base Area Support Battalion. For some time, she self-treated and did not seek medical treatment. Whilst undertaking a course for promotion to Corporal at the School of Infantry in 1997, the applicant found the physical activities required of her caused more frequent and severe pain in both her knees which she attributed to the fact that she was undertaking battle PT, carrying webbing, a pack, and other equipment.
Upon completion of the course, the applicant underwent a Medical Board examination and was classed as FE (fit everywhere). There was some evidence about whether or not she complained about knee problems at that time, and if they were raised, whether they were taken seriously, however, nothing turns on this issue. Ultimately, the applicant sought medical treatment for her knees and was given restrictive duty and treatment in the form of physiotherapy and anti-inflammatory medication. She underwent review by Col Peter Grant, a medical practitioner, following complaints of bilateral knee pain when running or marching for the several months prior to 15 August 1997. However, she had commenced walking five times per week and had pain occasionally if she "goes too hard" (T11).
Upon review, Dr Grant recorded that the applicant could walk for one hour without pain abut had some pain on hills. However, in September 1997, the applicant presented again with complaints of bilateral knee pain. There were numerous medical attendances from that time until May of 1998. On 16 June 1998 the applicant underwent surgery on her left leg, described as left knee tibial tiberosity transfer and she was discharged from hospital on 7 August 1998 on restricted duties.
Despite surgery, she continued to suffer bilateral knee pain. She is wary of her left leg giving way. The applicant suffers from burning and numbness in the shin areas after minimal exercise.
In respect to her present symptoms, she holds on to the rail for support when negotiating stairs. She takes her dogs for a walk of 2.6 kms once per month; although in the latter part of 2001, according to her statement prepared at about that time (A2), she was undertaking that activity a couple of times for week. The reduction in the frequency of such activity was said to be due to lack of capacity. However, in cross-examination she stated she had not undertaken the walk more frequently because of her studies. In addition to knee pain, the applicant suffers from shin pain and this also affects her ability to negotiate slopes. Shin pain also affects the distance she can walk.
The applicant was cross-examined closely about a history recorded by Dr Pentis and Ms Bertoldi to the effect that her knee problems commenced in Kapooka. I accept that any reference to the applicant's problems commencing in Kapooka, was meant to be a reference to the commencement of shin pain, and that it was likely that Ms Bertoldi, in making such a comment, was probably relying on a comment in Dr Pentis' report with which she had been provided, rather than having obtained that information directly from the applicant.
One aspect of the applicant's evidence which I found to be quite inconsistent was in relation to whether or not her left knee locks up or gives way, either presently or at any time since surgery. In this respect, I note that her statement (undated but established during evidence to have been prepared in October 2001), states "my left knee still gives way quite often".
Ms Bertoldi had recorded that the applicant had given a history that left knee pain was worse than that in the right knee, and that the left knee gives way on a regular weekly basis. Ms Kelly conceded that she told Ms Bertoldi that this was the case. Yet, in cross examination she stated, in answer to the question "Your left knee doesn't lock or give way any more", "No, not generally. Not with normal activities, whereas prior to the operation, it would with normal activities".
Turning then to Table 9.2, the medical opinions on this aspect are as follows.
Dr Pentis left knee 10%
right knee 0%
Ms Bertoldi left knee 10%
right knee 10%
Dr Boys left knee 0%
right knee0%
In respect of the right knee, it will be seen that the only practitioner who has assessed other than a zero per cent rating is that of Ms Bertoldi, who is an occupational therapist. Given that the opinions of both orthopaedic specialists are contrary to Ms Bertoldi's opinion, the Tribunal was not reasonably satisfied that it should accept her rating in preference to the other opinions.
In relation to Table 9.5, the medical opinions on this issue are summarised as follows:
Dr Pentis left knee 20%
right knee 10%
Ms Bertoldi left knee 20%
right knee 20%
Dr Boys left knee 10%
right knee 0%
The left knee lump sum payment was made on the basis of the assessments made under Table 9.5. As I understand the applicant's submissions, referred to both orally and in written form, it is suggested that I should revisit that determination on the basis that it was incorrect. Firstly, I do not believe the decision which I am called upon to review encompasses that point, and in any event, I prefer the opinion of Dr Boys, for reasons which follow.
In respect to the right knee, the applicant urged that the opinions of Dr Pentis and Ms Bertoldi should be given more weight than that of Dr Boys. However, in respect to the report of Ms Bertoldi, her evidence was clear that her assessment included a component attributable to decreased range of movement in the ankle and the contribution made by shin pain.
I note Dr Pentis' contention that the shin pain should be considered as "part of the overall problem". However, even if I was to accept this contention and find that that aspect was compensatable, it is also the case that decreased range of movement in the ankles played a major role in Ms Bertoldi's assessment. When regard is had to the fact that Ms Bertoldi considered that the shin pressure was causing the limitation of movement of the ankle, it is clear that both a shin condition, and an ankle condition, were taken into account in her assessment. Whilst it was contended that some discounting could occur to take this into account, I do not consider that this is appropriate and any attempt on my part to do would be entirely speculative.
I was also influenced by the fact that Ms Bertoldi's assessment makes no differentiation between left and right knee. This is despite the fact that she had obtained a history from Ms Kelly that the pain in her left knee was greater than the right knee. This was also the case during each activity the applicant undertook in Ms Bertoldi's presence. Ms Bertoldi had also noted that the applicant told her that the left knee gave way on a regular basis whereas according to the applicant's oral evidence, this was not the case either when she consulted Ms Bertoldi or at the present time.
Ms Bertoldi observed that there was a greater problem with the applicant's gait than the left. Additionally, the Tribunal notes that the medical reports of 1 May 1998 and 15 May 1998 record that the pain was more severe in the left knee. This is also inconsistent with the applicant's oral evidence, from which she did not resile that the pain had always been the same in both knees but that on some days it was worse in one particular knee.
Whilst Ms Bertoldi justified the identical rating for each knee under Table 9.5 on the basis that there was decreased range of movement in both knees and the left to a greater extent, it is at odds with the opinion of both orthopaedic surgeons, and contrary to the contemporaneous record of symptoms reported by the applicant on occasions during service that the pain in the left knee was worse than the right. This was also the understanding of Dr Pentis and Dr Boys and no doubt that is reflected in the fact that they had assigned different ratings to each knee.
In respect to the opinion of Dr Pentis, he had relied on the history reported by the applicant that at the time of consultation that the applicant could not run for too long as "the knee tends to give way". Although he did not make a note, Dr Pentis assumed it to be a reference to the left knee giving way.
The Tribunal interpreted the applicant's evidence on this aspect, which was contradictory in many respects, to be that the left knee had been unstable since the surgery, but that it had not given way. I considered that the overwhelming opinion is that the left knee is worse than the right knee. The applicant's oral evidence did not differentiate between the severity of symptoms in both knees when undertaking a range of activities, however contemporaneous reporting to medical practitioners is to the effect that the left knee causes more pain than the right. For that reason, I considered that the activities which Ms Kelly described as causing her difficulty, was most likely to be difficulties caused primarily by the left knee problem.
In respect to the comment that the applicant "finds it difficult to walk distances", Dr Pentis had not qualified that aspect in any way. He considered that the shin splints should be viewed as part of the knee problem. The assessment for both knees took into account the shin pain. Under re-examination he stated that if the applicant had chondromalacia patella of right knee and no other disabilities he would assess it at 10 per cent.
It had been contended that Dr Pentis had not carried out any objective testing and had come to his conclusions relying merely upon the descriptions provided by the applicant. It is clear, both from the report and Dr Pentis' oral evidence that he did more than rely on the history provided by the applicant. However, his report refers to "knee" or "knees" in the general sense, without being specific. Whilst he mentions that the applicant underwent surgery on her left knee, which had not been successful and which tended to "cause problems still", that is the only occasion on which he differentiates between the right and left knees. Consequently, it is difficult to reconcile his assessments of 20 per cent for the left knee and 10 per cent for the right knee for any reason other than information, derived from the applicant, that the left knee was worse than the left.
On the other hand, Dr Boys' report differentiates in his findings between the left and the right knees. He opines that there is no assessable impairment under Table 9.5 referable to the right knee. In order to attract a rating of 10 the following must be satisfied:
"Can rise to standing position and walk BUT has difficulty with grades and steps".
The Tribunal is satisfied that the applicant can rise to a standing position and walk. As to the ability to traverse grades and steps, the only specific evidence on this aspect is that of Ms Bertoldi, who, in describing any difficulties the applicant experienced, clearly had regard to decreased bilateral ankle range of movement, and the presence of pain and burning in both shins. In the Tribunal's view, there is insufficient evidence for it to be reasonably satisfied that the right knee alone would produce the difficulties necessary to justify 10 per cent under Table 9.5. That is not to say that the applicant does not have some effects from her right knee condition. However the Tribunal is not satisfied that the right knee impairment is such that it justifies a rating being allocated under Table 9.5.
Consequently, the decision under review is affirmed.
I certify that the 79 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Cowdroy, Member
Signed: Sarah Oliver .....................................................................................
AssociateDate/s of Hearing 12 December 2001 and 1 March 2002
Date of Decision 8 July 2002
Counsel for the Applicant Mr PWG Hume
Solicitor for the Applicant D'Arcys Solicitors
Counsel for the Respondent Mr C Clark
Solicitor for the Respondent Blake Dawson Waldron
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