KNIGHT Applicant And MILITARY REHABILITATION AND COMPENSATION COMMISSION
[2010] AATA 541
•21 July 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 541
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/0725
VETERANS’ APPEALS DIVISION ) Re MARILYN KNIGHT Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal M J Carstairs, Senior Member, and Dr M Denovan, Member Date21 July 2010
PlaceBrisbane
Decision The Tribunal sets aside the reviewable decision and substitutes the decision that Ms Knight’s injury of sexual dysfunction attracts a rating of 10% under Table 11.2 of the Guide and remits the matter to the respondent for further assessment of what is now payable to her.
The parties have 14 days’ leave to file submissions in relation to costs. If no submissions are filed in that time, the Tribunal orders the respondent to pay the applicant’s costs in accordance with s 67(8) of the Safety, Rehabilitation and Compensation Act 1988.
...................[Sgd]...........................
Senior Member
CATCHWORDS
COMPENSATION – Military compensation – Permanent impairment to female reproductive system – Sexual dysfunction disorder – Vulva and vagina – Not relevant that condition secondary to other compensable conditions – Meaning of “ailment” – Meaning of “deformity” – Meaning of “disease” in Table 11.2 same as in the Act – Meaning of “impairment” – Meaning of “injury” – First edition of Guide – Appropriate to assess under Table 11.2 – Table 11.2 not a cumulative test – Test of relevance – Previous assessment of psychiatric condition under Table 5.1 does not amount to double assessment – Contribution of early onset menopause – Earlier determination of liability not revoked – Sexual dysfunction disorder assessed at 10%.
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 14, 24, 25(4)
Canute v Comcare (2006) 226 CLR 535
Comcare v Kay (1997) 26 AAR 124
Fellowes v Military Rehabilitation and Compensation Commission (2009) 240 CLR 28
Re Halliday and Comcare (1994) 19 AAR 431
Telstra Corporation v Hannaford (2006) 151 FCR 253
Whitaker v Comcare [1998] FCA 1099
REASONS FOR DECISION
21 July 2010 M J Carstairs, Senior Member, and Dr M Denovan, Member 1. Marilyn Knight took medical discharge from full-time service in the Australian Army in 1990, having served in the Australian Regular Army from 1987. She then joined the Army Reserve in 1991. During her Army service Ms Knight sustained a number of compensable injuries, which are not in dispute here.
2. These injuries include:[1]
§ left knee condition (inversion injury);
§ aggravation of pre-existing lumbar spondylosis, and thoracic spine, neck and shoulder pain;
§ recurrent strains medial side right ankle, as a sequelae to the accepted knee conditions;
§ left pelvic pain, as a sequelae to aggravation of lumbar spondylosis;
§ ingrown toenails;
§ adjustment disorder with depressed mood, later amended to “adjustment disorder with depressed mood, chronic, and pain disorder, chronic, associated with a general medical condition and psychological factors”; and
§ Sexual dysfunction related to adjustment disorder.
[1] We have taken this summarised history from T41.
ISSUE
3. Expressed in broad terms, the question we have to address is whether Ms Knight’s symptoms of sexual dysfunction satisfy the criteria set out in the percentage bands for assessment of permanent impairment to the female “reproductive system”, as is provided for in Table 11.2 of the Guide to the Assessment of the Degree of Permanent Impairment (“the Guide”).
4. Ms Knight, to be paid permanent impairment, needed to reach a minimum assessment of 10%.
5. We would here note that Ms Knight’s claim for permanent impairment was first lodged in 2003.[2] Her solicitors requested a reassessment in 2008, rather than lodging a new claim. This means we are to apply the first edition of the Guide as in force at the time of the claim. (The second edition of the Guide applies only to claims from February 2006.)
[2] T23.
BACKGROUND
6. Section 24(5) of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) requires the assessment of any compensation payable for permanent impairment to be carried out using the Guide. First, however, a determination must be made under s 24(1) of the Act that “an injury to an employee results in a permanent impairment”.
7. Over the years, the respondent has made a number of global assessments of Ms Knight’s permanent impairment arising from her injuries. There is no need to go into the detail of these assessments; it is sufficient for present purposes to note that Ms Knight has been awarded compensation for permanent impairment to her left knee, right knee, right ankle, cervical spine, right shoulder and for her psychiatric conditions.
8. It was, however, in the course of one such global assessment (undertaken in 2006) that the respondent determined that Ms Knight did not suffer any “impairment” from sexual dysfunction, because, it was said, she did not suffer “symptoms and/or signs of disease or deformity”—these being the opening words to be found at each percentage level in Table 11.2 of the Guide.
9. There matters rested until 2008, when Ms Knight’s solicitors requested a re-assessment. However the respondent reached the same conclusion as before, denying Ms Knight’s entitlement.
10. It is of some significance to an understanding of the complexities of the case before us to appreciate that Ms Knight has undergone a number of medical procedures affecting her “reproductive system”, outside of the context of her compensable injury of sexual dysfunction. We also had evidence indicating that, in assessing “symptoms and/or signs”, it was likely to be relevant that Ms Knight has had a number of pregnancies during her marriage (the first pregnancy at the age of about 17). It would reasonably be expected that the reproductive system of a female with this history—her doctors report seven pregnancies and four live births[3]—would evidence more damage than would otherwise be the case. This would be so even absent subsequent compensable injury.
[3] Report Dr Brunello: T40 at 130.
11. It is also relevant to a consideration of matters affecting Ms Knight’s “reproductive system” that in 1986 at the age of 27, she had a hysterectomy due to problems she was experiencing with her menstrual cycle. She then had her right ovary removed in 1994 at the age of 35; and her remaining ovary was removed in an oopherectomy undertaken in 1998, she then being 38 years of age. The medical evidence makes plain, and it is not disputed, that Ms Knight went into early menopause upon the removal of her second ovary. Menopause can have effects upon the female reproductive system, as was outlined to us in the medical evidence.
12. Ms Knight provided us with two statements about her understanding of the effects of sexual dysfunction upon her, and her recollection of the time of onset of that condition. We would simply observe that these statements accord with what she has told the various doctors who have examined her. Ms Knight appears to us to have given a consistent account to doctors; there were no glaring discrepancies in her accounts of the onset of symptoms and/or signs which might lead us to lack confidence in her evidence. So we can say that we accept her evidence in that regard. That evidence is sufficiently reflected in the doctors’ reports and to that extent does not require detailed restatement, but is best understood in the context of the inferences that those doctors drew from her accounts.
13. Broadly speaking, Ms Knight maintains that she had a good sex life until she sustained her compensable orthopaedic injuries, specifically, her second knee injury in 1994.[4] From that time, she found that the resultant pain made sexual intercourse uncomfortable. In her account, the problems resulting from her sexual dysfunction disorder were evident to her before she went into menopause in 1998. It is her belief that her sexual dysfunction led to the ultimate breakdown of her de facto relationship.
[4] T5 at 42; Exhibit A5.
MATTERS RELATING TO ASSESSMENT
14. There were a number of preliminary issues which the parties raised, going to the assessment process generally. As will become apparent, the wording used at the different percentage levels in Table 11.2 is far from self-evident. Each side contended for a different reading of the Table and took a different approach to the principles to guide its interpretation.
15. With that in mind we consider it appropriate to address those matters first, as our own conclusions upon them are what guided us in our approach to the task at hand.
16. Accordingly, we deal firstly with three contested preliminary issues:
§ Whether or not Ms Knight’s sexual dysfunction disorder was permanent;
§ Whether Ms Knight’s sexual dysfunction had been assessed already within a prior assessment for her psychiatric disorder; and
§ whether the term “disease” which appears in Table 11.2 within the phrase “symptoms and/or signs of disease or deformity” bears the same meaning as in the definition of “disease” in s 4 of the Act.
Was Ms Knight’s sexual dysfunction a permanent condition?
17. Mr C Clark, counsel for the respondent, questioned the permanence of Ms Knight’s sexual dysfunction, but ultimately did not strongly urge his submission. There was little medical evidence that might raise concerns on the question of permanence of the condition.
18. It was true that Dr L Brunello, gynaecologist, had responded somewhat equivocally to the question of permanence by saying:
not necessarily … If her musculo-skeletal symptoms were to be adequately resolved or relieved then there are any number of readily available vaginal lubricants…[5]
[5] Report of Dr Brunello: T40; See also exhibit R2 at para 37.
That, however, hardly constitutes a denial of permanence. In fairness to Dr Brunello, these quoted remarks do not fully expose his views. He in fact went on to observe in his written report that Ms Knight’s symptoms of sexual dysfunction were not limited solely to problems of lubrication. In his oral evidence it was clear that Dr Brunello regarded her condition as permanent.
19. We were very much persuaded by the majority of medical reports agreeing on the point that Ms Knight’s sexual dysfunction is permanent. Relevantly, prior decision-makers appear to have been satisfied on that point as well.
20. We were satisfied that the tests set out in s 24(2) of the Act in relation to permanence were met. So it would be appropriate to proceed to apply the Guide.
Had sexual dysfunction been assessed within a previous assessment of Ms Knight’s psychiatric disorder?
21. In relation to this issue, we note that the delegate in his decision (dated June 2008)[6] alluded to Ms Knight’s sexual dysfunction being a symptom of her psychiatric disorder. Some suggestion of such a connection is evident in psychiatrists’ reports.
[6] T46.
22. In that regard, Mr Clark submitted that Ms Knight’s sexual dysfunction had been assessed at the time that 20% was awarded to her under Table 5.1 for her psychiatric condition. He submitted, therefore, that assessing Ms Knight’s sexual dysfunction under Table 11.2 would amount to double counting, which must be avoided when applying the Guide.[7]
[7] See the Principles of Assessment to the Guide.
23. Mr Clark noted that 20% was a high impairment rating, and it was likely that an award at that level would have taken into account sexual dysfunction within an assessment of effects on “activities of daily living” which must be addressed at that rating level. Mr Clark noted that Ms Knight’s sexual disorder was accepted by the respondent only as a sequel to her already accepted “adjustment disorder with depressed mood”.[8]
[8] T22.
24. The argument of Ms Knight’s counsel, Mr A Anforth, reduced to its essentials, was that her “injury” (as used in s 14 and s 24 of the Act) was “sexual dysfunction”, and it did not matter that this condition was secondary to other compensable physical and psychiatric conditions. What needed to be determined, said Mr Anforth, was whether there was “sexual dysfunction impairment”.
25. We have come to the conclusion that Mr Anforth’s submission is right. He relies upon two High Court decisions: Canute v Comcare (2006) 226 CLR 535 and Fellowes v Military Rehabilitation and Compensation Commission (2009) 240 CLR 28.
26. Mr Clark’s submission to the contrary runs counter to the reasoning of those cases. In Canute, the High Court stated, at 541 [11]:
The definition of impairment (and by extension the concept of "permanent impairment") is expressed in terms of effects on bodily parts, systems and functions. This disaggregated sense of the word is reinforced by the use of the indefinite expression "a permanent impairment" in s 24(1). Textually, the Act assumes that "an injury" may result in more than one "impairment".
27. The High Court endorsed this in Fellowes at 34, noting again the pivotal nature of the concept of “injury” in the Act. As Canute makes plain, the obligation is to pay compensation in respect of injury, not impairment. Both High Court decisions underline the evident breadth of the concepts of “impairment” and “ailment” in the Act.
28. We would accept as uncontroversial what Finn J stated in Comcare v Kay (1997) 26 AAR 124 at 129:
Section 24 of the SRC Act on its face is unconcerned with the location of an injury. Rather its focus is on whether "permanent impairment" results from an injury. A "permanent impairment" in turn is defined in s 4 to mean a loss, or loss of use of, or damage to, or malfunction of, any part of the body or bodily system or function. The tables contained in the Guide required by s 24(5) to be used in determining the degree of permanent impairment in turn deal with various categories of body parts, systems and functions. In the application of the tables the location of an injury can only be a matter of moment if for a particular table this is made so in the assessment of the degree of permanent impairment with which that table is concerned.
29. But it seems to us, additionally, that a reading of the previous determination made with respect to permanent impairment[9] does not clearly state anywhere that the delegate took “sexual dysfunction” into account in assessing Ms Knight’s psychiatric condition under Table 5.1. Nor did the issue of possible double counting of “sexual dysfunction” form part of the reasoning of the reconsideration delegate in the reviewable decision denying the claim.[10] That delegate concluded that Ms Knight simply did not meet the criteria in Table 11.2 for assessment at the level of 10%, the minimum level necessary to trigger further payment for permanent impairment: s 25(4) of the Act. We make that point, not because the reasoning of earlier decision-makers binds a Tribunal conducting merits review, but simply to make the observation that no comment was made by them that double counting had occurred.
[9] T41.
[10] T51.
30. Furthermore, psychiatrists’ reports in the documents provided to us mainly refer to loss of libido in the context of a psychiatric assessment of the case. Ms Knight claims a range of symptoms related to her sexual dysfunction, well beyond simply a loss of her libido. If the psychiatrists’ reports had covered that range of symptoms as now claimed, there may have been more of a basis to Mr Clark’s submission about possible double counting.
Disease and/or deformity—does “disease” mean the same as in s 4 of the Act?
31. Table 11.2 of the Guide, the relevant part of which is set out below, requires that an injured person have “symptoms and/or signs of disease or deformity”.
32. All doctors agreed that “symptoms” are the subjective indications perceived by the patient, such as pain, sweating or dizziness, whereas “signs” are the objective findings made by the medical practitioners on clinical examination.
33. When it comes to the meaning of “disease”, we consider that the term sensibly takes on the same meaning as in s 4 of the Act, where it is defined as an “ailment” (being a physical or mental ailment, disorder, defect, or morbid condition). “Deformity”, on the other hand, which is not defined in the Act, should bear its ordinary meaning. According to the Macquarie Dictionary (5th ed.), that meaning includes a “change of form, especially for the worse”, an “abnormally formed part of the body”. Dr Brunello also referred to deformity as being a physical abnormality that can be visibly seen, which is a meaning we would accept as one in ordinary usage.
34. We also note, in passing, that the first edition of the Guide allowed for “symptoms and/or signs”. The second edition has limited the phrase to “symptoms and signs”, which makes the test, we would think, necessarily more restricted.
TABLE 11.2 OF THE GUIDE
35. We would start with the observation that the aspect of sexual dysfunction enlivened in this case, and requiring an assessment of relevant impairment, was limited to the consequences of injury as affecting Ms Knight’s vulva and/or vagina. Separate provision is made in Table 11.2 for other effects of sexual dysfunction, such as might arise where the injury was one productive of symptoms to the cervix or uterus, fallopian tubes or ovaries.
36. Turning then to Table 11.2 as it relates to such an assessment, there are three possible ratings:
10%Symptoms and/or signs of disease or deformity not requiring continuous treatment
AND
Sexual intercourse possible
AND
Vagina adequate for childbirth
25%Symptoms and/or signs of disease or deformity requiring continuous treatment
AND
Sexual intercourse possible with varying degrees of difficulty
ANDVaginal delivery limited in pre-menopausal years
35%Symptoms and/or signs of disease or deformity not controlled by continuous treatment
AND
Sexual intercourse not possible
ANDVaginal delivery not possible in the pre-menopausal years
37. We have already referred to some preliminary concepts and principles relating to the assessment process. However we must also consider the concept of “impairment” itself, in order to properly take into account what we are told by the medical evidence.
38. “Impairment” is defined in s 4 of the Act as being the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
39. What is immediately evident is the width of this definition.
40. Mr Anforth made certain submissions about “impairment”, to the effect that there were two limbs to the definition. However we think there are at least four limbs, not two, and they are specifically referred to in the definition: “loss”; “loss of the use of”; “damage;” and “malfunction”. It is important to consider the effect of these separate meanings when carrying out the assessment task.
41. Additionally, s 4 of the Act serves to remind us that each of the four limbs must be considered for their consequences—separately or together—upon:
§ the body;
§ any bodily system; or
§ any bodily function.
42. Clearly the intention in the Act is to provide a wide and flexible definition.
43. Certain Tribunal authorities have considered “impairment” and concluded that the terms “loss”, “loss of the use of”, “damage”, and “malfunction” should be interpreted according to their ordinary meaning.[11] That said, it seemed to us that the particular aspect of impairment which medical practitioners have tended to emphasise in Ms Knight’s case had more to do with “malfunction” and possibly “loss of the use of”, than with (simply) “loss” or “damage” of the female reproductive system (or its functions).
[11] Re Halliday and Comcare (1994) 19 AAR 431.
THE MEDICAL EVIDENCE.
44. Dr A Evans, gynaecologist, treated Ms Knight from 2002 and was the author of four reports. Dr Evans noted on clinical examination that Ms Knight’s vulva and vagina demonstrated no apparent disability but that she had said she found sex uncomfortable due to her back problems and lack of flexibility. Dr Evans expressed the opinion that her painful intercourse and lack of interest in sex was due to her chronic musculo-skeletal problems and her depression,[12] and to the array of medications that Ms Knight was required to take.[13] Ms Knight told Dr Evans that her sexual dysfunction started about 1994 after a second knee injury.
[12] T50 at 204.
[13] T50 at 205.
45. Dr Evans said that while ever Ms Knight suffered from depression and the orthopaedic problems, her sexual dysfunction would continue.
46. In a later report,[14] Dr Evans stated that lack of libido affects the vulva and vagina, with the consequence that they do not swell in response to stimulation. Furthermore, vaginal dryness affects the vaginal opening. Dr Evans revised her opinion somewhat for her final report in 2009, in which she stated (albeit with some prompting from a letter from Ms Knight’s solicitor) that Ms Knight suffered an “ailment” of her vulva and vagina in that she had no libido; was unable to lubricate to achieve orgasm; and suffered pain with intercourse.
[14] Exhibit A1, dated 22 July 2009.
47. In her oral evidence, Dr Evans said that low libido, dryness and “unarousability” all reduce sensation in the vulva and clitoris. Taking medications such as pain relievers and anti-depressants can have the same effect. Dr Evans assessed Ms Knight under Table 11.2 at the level of 25% which, it will be recalled, meant that Dr Evans was satisfied that there were symptoms and signs of disease or deformity; intercourse was possible with difficulty; and vaginal delivery was limited in the pre-menopausal years.
48. Under cross-examination, Dr Evans said that the third requirement of Table 11.2 (vaginal delivery limited in the pre-menopausal years) did not relevantly arise as Ms Knight had finished her reproductive career. When we asked whether Ms Knight’s symptoms were ones that would be demonstrated by a post-menopausal woman anyway (that is, not necessarily “the result of” the compensable injury), Dr Evans did not agree. She said that Ms Knight had experienced a good sex life before menopause and could have expected this to continue after menopause, except for the intervention of her (compensable) orthopaedic and depressive conditions.
49. Dr J Howard, general practitioner, who has specialised in sexual health, started treating Ms Knight in 2002. Like Dr Evans, Dr Howard thought that Ms Knight’s “severe degree of sexual dysfunction” was secondary to her orthopaedic and depressive conditions.[15]
[15] T42 at 161.
50. Dr Howard took a history from Ms Knight of suffering, from about 1992 onwards, from lack of libido, vaginal dryness, loss of vaginal sensation, dyspareunia (recurrent or persistent genital pain associated with sexual intercourse), lack of lubrication, and lack of arousal and orgasm.
51. Dr Howard noted on clinical examination that Ms Knight’s vulva and vagina were atrophic, and that she had poor vaginal muscle tone.[16] In a later report, Dr Howard clarified that Ms Knight’s problems were not easily accounted for in purely anatomical terms. However, Dr Howard did state that vaginal dryness, loss of vaginal sensation and dyspareunia affected (amongst other parts of the body or body systems) the vulva and vagina, and that Ms Knight’s lack of arousal affected the blood supply to the vulva and vagina.[17] Dr Howard also observed that the signs of vaginal atrophy would meet the diagnosis of “ailment”.
[16] T42.
[17] Exhibit A2, p 1.
52. However, in her oral evidence at the hearing, Dr Howard acknowledged that vaginal and vulval atrophy usually occurs over time after menopause. She also acknowledged that what she referred to as “poor pelvic floor” could be accounted for in Ms Knight’s case by repeated pregnancies.
53. Dr Howard, we note, appeared unaware that Ms Knight had surgical menopause in 1998 (when she was aged about 38) and opined that her menopause had commenced at about age 50. It seems that Dr Howard may have assumed she was treating a pre-menopausal woman. We found her opinion less helpful due to her failure to bring into account the factor of early menopause in Ms Knight’s case when carrying out her assessment under Table 11.2.
54. Dr Brunello, obstetrician and gynaecologist, prepared a report dated 25 November 2005. He had to rely upon reports of clinical examination by other doctors, in combination with a history taken from Ms Knight, because Ms Knight declined further clinical examination. Dr Brunello was provided with Dr Evans’ and Dr Lander’s reports. Dr Brunello noted of these reports that each doctor had found, on clinical examination, that Ms Knight’s genital tract was normal (subject to her having had uterus and ovaries surgically removed).
55. In his written report, Dr Brunello stated that Ms Knight’s sexual dysfunction was characterised by lack of libido. He accepted her account that this symptom was contributed to by her orthopaedic injuries. Dr Brunello, who could only base his conclusion on Dr Evans’ and Dr Lander’s accounts of their clinical examinations, stated that Ms Knight did not suffer from any “disease or deformity” of the vulva or vagina. In his written report, the words he used were “not a disease or deformity of the vulva or vagina per se”.[18]
[18] T40 at 132, and Transcript of 20 May 2010 at pp 57 and 59.
56. However, what Dr Brunello described to us in his oral evidence revealed his thinking to be more complex than was immediately evident in his written report.
57. In his oral evidence, Dr Brunello said Ms Knight demonstrated “signs and symptoms” affecting the functioning of the vagina. He said that he would not describe this as a “deformity”—which would be a physical abnormality that can be visibly seen—but as a “disease”. Dr Brunello disaggregated that word in his oral evidence, as “dis-ease” (meaning an absence of ease) and said that Ms Knight suffered “dis-ease” in the use of her vaginal apparatus, due to lack of oestrogen or lack of lubrication. In making that remark, his particular emphasis seemed to be on her functioning, rather than on her physical make-up. That meaning is, too, comprehended within the term “ailment.”
58. In that regard, Dr Brunello said that in the post-menopausal woman the vagina, clitoris, vulva, and other genitalia will atrophy. To maintain the integrity of these structures, oestrogen cream, which to some extent will maintain these structures, needs to be used.
59. Ms Knight, as we have seen, had experienced surgical menopause at a much earlier age than would have occurred naturally. She takes no oestrogen, having trialled this unsuccessfully in the past. Dr Brunello said that without exogenous oestrogen Ms Knight would have had some natural deterioration in the integrity of the genitalia after 1998. However Dr Brunello agreed that from her history, which he accepted as being a true account, Ms Knight’s initial loss of libido was pre-menopausal.
60. Dr Brunello said that being without libido and lacking the ability to think positively about sexual activity means that the usual secretion, increases in blood supply to the area and heightened sensation will not happen. There may be, he said, nothing in the nature of physical abnormality, but Ms Knight had diseased functioning of the vaginal tract.[19]
[19] Transcript 20 May 2010 at p 57.
61. Dr Brunello is the only doctor who has provided a clear patho-physiological explanation as to how low libido could contribute to Ms Knight’s localised vaginal and vulval impairment, that is, dryness, dyspareunia and lack of lubrication.
62. Dr Brunello noted that Ms Knight was post-menopausal since 1998 and that her local symptoms could be explained by low oestrogen, but he reiterated that there was a connection with the psychological/psychiatric condition for which she received treatment and her musculoskeletal complaints, especially her knees.
63. In view of what Dr Brunello had said in his oral evidence, which made clear his view that Ms Knight showed evidence of diseased functioning of the vagina, we asked him to explain the grounds upon which he had decided that Ms Knight rated less than 10% on Table 11.2. He was, after all, saying that there were “symptoms or signs of disease” of the vagina. In response to that question, Dr Brunello said that he did not consider that Ms Knight rated 25%, because her symptoms and signs did not “require continuous treatment” (a requirement at the level of 25%). Rather, he considered that for Ms Knight, sexual intercourse was possible (one requirement for a rating at the level of 10%). Dr Brunello explained that he meant by his rating that she satisfied 10%, somewhere between “10 to zero.”
64. Dr Brunello gave the most nuanced approach in his discussion of the assessment exercise. In our view, what he described as symptoms and signs of disease of functioning of Ms Knight’s vagina comfortably comes within what is clearly a broad definition of “ailment” provided for in the Act, which it will be recalled is “a physical or mental ailment, disorder, defect, or morbid condition”. We would think that what Dr Brunello described was the presence of a physical disorder or a defect that came within the ambit of “impairment”, because it entailed a loss of use, or the malfunction, of part of a bodily system or function: s 4 of the Act.
65. We also had the reports of Dr J L Lander, also a gynaecologist. However we found his reports to be of less assistance in addressing the task before us. That was because Dr Lander continued to focus on questions of causation (well after this was decided in Ms Knight’s favour) rather than the assessment of permanent impairment. Dr Lander first saw Ms Knight when he was commissioned to compile a report addressing causation of sexual dysfunction, in 2003. In his report, he gave his opinion that her sexual dysfunction was mulitfactorial in origin, and only minimally related to her work in the defence force.
66. About that time, Dr Lander was also asked to assess the level of Ms Knight’s permanent impairment, which he then rated at 35% under Table 11.2.[20] Dr Lander was then summarily instructed by the respondent’s delegate that “Table 11.2 … is to be used with respect to sexual dysfunction arising as a result of neurological impairments rather than local reproductive pathology.”[21] He was instructed, further, that Table 11.2 was not to be used where sexual function was impaired by reason of pain or depression. Whatever the intendment of that communication, which seems not to find its source either in the Tables or the Introduction to the Tables as far as we could see, it seems to have persuaded Dr Lander to revise his opinion about the appropriate rating to “less than 10%.” [22]
[20] T30 at 110.
[21] T31.
[22] T32.
67. We were mindful when considering Dr Brunello’s evidence that Ms Knight declined a physical examination, but we do not believe his report is diminished thereby, given that he had access to the clinical findings of others and that he accepted the history as given by Ms Knight, which indeed has not been seriously disputed.
CONCLUSIONS
68. We prefer Dr Brunello’s assessment to those of Dr Evans and Dr Howard. who each assessed at the next available level, 25%. In doing so, neither doctor gave any real consideration to the question of the contribution made by other factors in this case, the most obvious of which is the effects of Ms Knight’s early onset menopause.
69. The task that the Act mandates at s 24 starts with the proposition that the injury results in permanent impairment. The evidence in this case makes plain that compensable injury resulted in impairment, but so too did the surgical menopause. The task for us is made harder because the effects may well be difficult to differentiate. But it seems to us clear that the effects of menopause cannot be ignored, so as to assign a rating as if there was only the one factor, compensable injury, at play. Yet that, it seems to us, is what Dr Evans and Dr Howard have done. We do not accept their evidence that Ms Knight meets an impairment level of 25%, as we prefer the evidence of Dr Brunello that Ms Knight’s symptoms of “disease” do not require “continuous treatment”.
70. The case was presented to us as involving a fundamental dispute about the proper construction of Table 11.2. The problems thrown up by this case show the difficulties presented by the wording of the Table. This is reinforced by the number of changes made to it in the second edition of the Guide. In that regard, we note that the Table has been extensively revised in the second edition of the Guide.
71. There have been numerous criticisms made over the years, both by the Tribunal and the Federal Court, about the difficulties of applying the Guide in its original form. It is unnecessary to labour the point (given that the Guide has now been amended), but we cannot fail to observe that Table 11.2 has not proved easy to apply. We agree, however, with the observations made by the Federal Court in Whitaker v Comcare [1998] FCA 1099 that, however difficult the task of construction, the Tables have to be given some meaning and then applied in a particular case.
72. We were at first inclined to take the view that the presence of the conjunction “AND” between each of the levels within Table 11.2 indicated that this was a cumulative test, requiring a person to satisfy each level. However, the doctors who gave evidence did not approach the task that way, particularly when asked whether they had turned their mind to applying the phrase “vagina adequate for child birth in pre-menopausal years”. The doctors took into account whether or not that phrase applied to the particular person. That is, they considered whether (at the time of assessment) the person was menopausal or pre-menopausal. The doctors, in other words, applied a test of relevance and did not approach the Table as providing for a cumulative test. Understood that way, it is clear that the doctors’ approach was the correct one. There would be no evident reason to apply the test in the compensation setting in a way that would deny compensation. This would occur if the test was applied as a cumulative one. We took into account that the second edition of the Guide removes this evident problem.
DECISION
73. There remains a final point, about which we should express our views. In closing submissions Mr Clark raised what was referred to in shorthand as a “Hannaford” submission. In Telstra Corporation v Hannaford (2006) 151 FCR 253, the Full Federal Court held that in appropriate cases and with relevant medical evidence, a decision-maker can revoke an earlier determination of liability under s 14 of the Act. We would simply say that Mr Clark’s submission was raised too late. The medical evidence was not tested in such a way as would be necessary to provide the foundation for revoking liability.
74. Accordingly, we would set aside the decision under review and substitute the decision that Ms Knight’s injury of sexual dysfunction attracts a rating of 10% under Table 11.2 of the Guide.
I certify that the 74 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member, and Dr M Denovan, Member.
Signed: .........................[Sgd]...................................................
Mátyás Kochárdy, AssociateDates of Hearing 19 & 20 May 2010
Date of Decision 21 July 2010
Counsel for the Applicant Mr A Anforth
Solicitor for the Applicant James Watt & Co Solicitors
Counsel for the Respondent Mr C Clark
Solicitor for the Respondent DLA Philips Fox
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