Kondakov and Comcare
[2004] AATA 922
•3 September 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 922
ADMINISTRATIVE APPEALS TRIBUNAL )
) No D2003/29
GENERAL ADMINISTRATIVE DIVISION ) Re MARK ALEXANDROVICH KONDAKOV Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President Don Muller Date3 September 2004
PlaceBrisbane
Decision The Tribunal affirms the decision to reject a claim for compensation for permanent impairment to the left knee of Mark Alexandrovich Kondakov.
................SIGNED..............................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
WORKERS COMPENSATION - impairment not sufficiently significant to qualify for compensation – decision affirmed
REASONS FOR DECISION
Deputy President Don Muller 1. Mark Alexandrovich Kondakov, the Applicant, seeks review of a decision to reject his claim for lump sum compensation for permanent impairment resulting from an injury to his left knee, which injury has been accepted by the Respondent as having arisen out of, or in the course of, the Applicant’s employment as a soldier in the Australian Army. The claim has been rejected on the basis that the impairment is not sufficiently significant to qualify for compensation.
2. Mr. Kondakov first injured his left knee on 7 March 1995, whilst playing organised sport. He sustained a further injury to his left knee on 19 February 1996 whilst on a march.
3. Mr. Kondakov also injured his right knee whilst he was serving in the Army. His right knee was injured on 1 September 1998, whilst playing soccer for an Army team.
4. Mr. Kondakov also claimed lump sum compensation for permanent impairment resulting from the injury to his right knee. This injury to the right knee was also accepted as having arisen out of, or in the course of, the Applicant’s employment as a soldier in the Australian Army.
5. Mr. Kondakov’s right knee injury was initially (26 November 1999) assessed as giving rise to a 10% whole person impairment pursuant to the “Guide”. There was a re-assessment in early 2003 in which Mr. Kondakov’s right knee was assessed as being 0% using Table 9.2 and 20% using Table 9.5 of the Guide. Mr. Kondakov has been paid lump sum compensation on the basis that he has a 20% whole person impairment due to that injury to his right knee.
6. Mr. Kondakov’s claim for lump sum compensation to his left knee has been rejected on the basis that the injury is not sufficiently significant to increase his whole person impairment beyond 20%, or, alternatively, as a stand alone impairment, it does not reach the required minimum of 10% before compensation is payable.
7. At the hearing the Applicant was represented by Mr. King-Scott of Counsel and the Respondent was represented by Mr. Derrington of Counsel.
8. the Tribunal heard oral evidence from Mr. Kondakov, Dr. Suzette Blight, Dr. Gibberd and Dr. Bruce Low. In addition, the Tribunal had the following documents before it:
(a)The section 37 documents, pursuant to Administrative Appeals Tribunal Act 1975, exhibit 1;
(b)Statement of Agreed Facts dated 6 April 2004, exhibit 2;
(c)Letter from Dr. Suzette Blight dated 15 September 2003, exhibit 3;
(d)Statement of Mr. Mark Kondakov dated 22 September 2003, exhibit 4;
(e)Letter from Military Compensation and Rehabilitation Service, dated 18 February 2003, exhibit 5;
(f)Report of Dr. Thoo, dated 3 November 2003, exhibit 6; and
(g)Report of Dr. Thoo, dated 18 November 2003, exhibit 7
9. Upon agreement between the parties, the Tribunal finds as follows:
(a)Mr. Kondakov was born on 9 March 1971 and is presently 33 years of age.
(b)Mr. Kondakov enlisted in the Australian Army on 4 June 1991. He attained the rank of Corporal prior to voluntary discharge on 19 August 2002.
(c)On 21 October 1999 Mr. Kondakov completed a compensation claim for a left knee condition (T3). He claimed to have sustained the injury and first sought medical treatment for it on 7 March 1995. He claimed to have sustained the injury while undertaking service organised physical training.
(d)By letter dated 21 June 2000, the Respondent admitted liability for Mr. Kondakov’s claimed “left knee condition”.
(e)Mr. Kondakov completed a Benefit Election Form on 6 July 2000.
(f)By letter dated 25 July 2000 (T14), the Respondent advised Mr. Kondakov that for him to be eligible for a lump sum payment for permanent impairment it required evidence that he suffered an impairment as a result of the injury. The respondent enclosed a copy of Dr. Richard Gibberd’s report dated 15 June 2000 (T11). The report stated that the Applicant did not suffer an impairment as a result of his accepted condition. The Respondent determined that no payment could be made under sections 24 and 25 of the Act.
(g)By undated letter (T15) (received by Military Compensation Rehabilitation Service on 1 September 2000) Mr. Kondakov sought a reconsideration of his claim for compensation and advised that he had made arrangements to be examined by Dr. Bruce Low.
(h)By letter dated 14 December 2000 (T18) the Respondent affirmed its determination dated 25 July 2000 (T14).
(i)By letter dated 16 September 2002 (T22) Mr. Kondakov submitted that his condition had deteriorated since the determination of 14 December 2000 and formally asked for a reassessment of the claim. He annexed the following documentation:
(i)Extract of medical file from March 1999 to present (T22);
(ii)Report of Dr. Suzette Blight, dated 12 September 2002 (T21).
Mr. Kondakov submitted that he ought to be assessed at 10% WPI under Table 9.2 of the Guide.
(j)By letter dated 22 November 2002 (T25) Mr. Kondakov provided to the Respondent a completed Non-Economic Loss Questionnaire.
(k)By letter (Determination) dated 13 January 2003 (T27) the Respondent enclosed Dr. Homolka’s report (T26). Dr. Homolka diagnosed a Whole Person Impairment of less than 10% under Table 9.2 of the Guide. The Respondent determined that, as the Applicant’s Whole Person Impairment was less than the 10% threshold, it was not compensable and no payment could be made.
(l)By letter dated 13 May 2003 (T31) Mr. Kondakov requested that his claim be formally reconsidered for eligibility for lump-sum compensation pursuant to sections 24 and 25 of the Act. He submitted that he should be assessed at 10% Whole Person Impairment under Table 9.2 of the Guide and sought a determination to this effect.
(m)By letter (reviewable decision) dated 6 June 2003 (T33) the Respondent affirmed its Determination of 13 January 2003 (T27) and determined not to pay lump sum compensation to Mr. Kondakov in respect of his accepted left knee condition.
APPLICANT’S EVIDENCE
10. Mr. Kondakov gave oral evidence and provided a statement dated 22 September 2003. He described his injury to his left knee in his statement as follows:
“2.On the 7 March 1995 at approximately 0800 hours I was playing touch football which was the unit organised PT for Headquarters and Headquarter Company 6 Brigade. This injury occurred at the main sports oval at Enoggera Barracks Brisbane, just to the rear of the 1 Div Cash Office. I was assisted to the RAP where I was seen by a medic at approx 0900 hrs.
The injury was a result of me attempting to catch the ball and landing awkwardly on my left knee. I was in a great deal of pain and when I tried to stand up, I immediately fell to the ground, the pain excruciating and I did not have any strength in the knee. The knee was severely swollen for several days over which time I was on painkillers, anti-inflammatory tablets and walking around on crutches. After several days the knee showed no signs of improving and I was referred to a specialist. The date for the arthroscopy was set for the 12 July 1995, some 4 months after the date of injury.
The above facts are what I believe the main incident to be, however in mid to late 1991 there were a couple of minor incidents recorded on my medical documents, I can not specifically recall much detail about them and personally do not consider them to be the main incident.
3.A PM 24 (Report of an Injury or Illness – Army) was submitted by myself and acknowledged by my Sub Unit Commander (Captain M.K. Gallegos) and by the MO (Doctor Patel) on the 26 April 1995. The reason for the delay was that the MO was awaiting to see how the knee settled down, prior to her completing the application (and I was reassured by her that as my history was documented on each visit between the time of the injury (7 March) and the completion of the PM24 (my submission date of 24 April 1995) this time frame would not be an issue).
4. The medical treatment for my left knee in dot point is below:
· 10 July 1991 – minor knee incident at Kapooka (initial recruit training), unable to recall any significant details.
· 9 August 1991 – minor knee incident at Kapooka (initial recruit training), unable to recall any significant details.
· 21 October 1991 – minor knee incident at Kapooka (initial recruit training), unable to recall any significant details.
· 7 March 1995 (injury occurrence) – given pain killers, anti-inflammatory tablets, given crutches and told not to weight bear, then come back in a few days if it had not improved.
· 12 July 1995 – Underwent an arthroscopy on the knee with the following medical notes notated:
o GRI osteoarthritis medial facet of patella;
o Small supra patella plica; and
o Restrictions and physio as needed.
· 27 February 1996 – Xray taken of my left knee, with the following notated:
o small ossicle projecting at the tip of medial tibial spine;
o not excluding a loose body, but considered unlikely; and
o no evidence of joint effusion.
(there was not an x-ray taken before I underwent my surgery and only 8 days short of a year since the injury occurred).
· Period 29 Feb – 18 July 1996 – reviewed by Dr Lewis and was advised about the limitations of my knee, which included restrictions for PT and for drill.
· Continual pain and discomfort, sought medical attention and was on restrictions for physical activities (although some of these documents are not on my medical file, I can obtain statements from previous supervisors if required?)
· 23 January 2002 – had an appointment with a different MO, and indicated that daily military life was intolerable due to my knees, requesting that significant restrictions be placed on my file to protect my knees as much as possible and they included:
o Running own pace, but also basic fitness assessment run exempt;
o fit for BFA walk; and
o Unfit for contact sports.
6.Since the injury in 1995, my knee has not improved, in fact it has deteriorated. This is evident to me, by my decreased lack of mobility, my unwillingness/inability to perform tasks that I may have contemplated years ago and by the pain and discomfort which I am now sad to say I accept as part of everyday life. The severity and frequency of extreme pain has increased over the last few years in particular. Another telling factor is my inability to get a good nights sleep, this occurrence of being woken up with pain in the middle of the night is increasing and thus this has a negative effect on the rest of my lifestyle. The clicking in my left knee has become more and more frequent over the years and this combined with a sense or feeling of instability, plus a fairly pronounced limp (from when I first stand up for a few paces until I walk it out), all this has suggested to me that it has deteriorated. Additionally squatting and kneeling are still proving to be an obstacle for me and these tasks certainly have not gotten any easier over the years.”
11. In his oral evidence to the Tribunal Mr. Kondakov made the following points:
· He is currently working in the Australian Public Service as an Administrative Officer at Larrakeyah Barracks.
· His “desk job” requires no physical work.
· His weight is now stable, having risen to 120kgm since he has been unable to take proper physical exercise.
· He has to avoid stairs. He cannot participate in physical team building exercises.
· He has difficulty with the following domestic activities:
Cooking;
General kitchen activities (standing) including dishes, preparing meals etc;
Ironing;
Looking after the family pet (a German Shepherd dog)
Mowing the lawns and garden maintenance;
Climbing the step ladder;
Crawling through the ceiling cavity;
Gaining access to the bottom shelves of cupboards;
Vehicle maintenance;
Woodworking; ability to clean sink drains;
Inability to move heavy furniture.
MEDICAL EVIDENCE
12. Dr. Richard Gibberd, orthopaedic surgeon, provided a report dated 15 June 2000. Some relevant excerpts from his report are as follows:
“Examination did confirm that he had good quads bulk, equal to that on the right. There was no synovial fluid or thickening present. He had a full range of knee movement with no complaints of pain. There was no evidence of any ligamentous laxity or rupture. Hip was clinically normal. There was minimal retro patella crepitus present. There was slight tenderness on the postero lateral corner on the joint line. Maximum tenderness was on the medial and odd facets of the patella.
I believe the diagnosis here is one of painful patella syndrome or chondromalacia patellae. I believe this is causing him minimal pain and discomfort and no active treatment is required.
….
1. I do not believe that the client suffers an impairment as a result of his compensable condition.” (T11)
13. Dr. Gibberd confirmed his statement by oral evidence to the Tribunal.
14. Dr. Bruce Low, orthopaedic surgeon, examined Mr. Kondakov on 5 September 2000. The following are relevant excerpts from his report dated 6 September 2000.
“On examination of Mr. Kondakov
The knee extends and flexes fully
There is no instability of the cruciates or collaterals
There is no effusion.
There was no wasting of the quads.
There are some patella femoral signs
There is normal patella femoral tracking.
There is no tightness of the lateral retinaculum.
There is negative patella apprehension test.
Mr Kondakov is suffering from painful patella femoral syndrome or chondro malacia patella.
…
Permanent impairment schedule of questions:
…
1. This man does suffer an impairment as a result of his compensable condition.
2. The impairment is permanent.
3.He does not suffer any related impairments which did not result from his compensable condition.
4.4a permanent impairment left knee. Based on Table 9.2 he does not have whole person impairment. Based on Table 9.5 – he has a 10% whole person impairment.
5.No tests were used to assess grades, steps and distances. Subjective only what I know to be most likely the case.
6.He does not have any immediate or intermediate needs regarding his compensable condition, which are not being met.
7.I do not consider the percentage whole person impairment listed above may be reduced by any further medial or rehab treatment.” (T16)
15. Dr. Low confirmed his statement in oral evidence to the Tribunal. He went on to say that in his opinion there was no loss of normal range in Mr. Kondakov’s left knee, and that, consequently, his whole person impairment under Table 9.2 is zero. However, Dr. Low found that Mr. Kondakov did have some problems due to pain and stiffness and that he made an assessment of whole person impairment of 10% due to the left knee alone under Table 9.5.
16. Dr. Suzette Blight, rehabilitation physician, provided a report dated 12 September 2002. She reported the following:
“On examination he presented as a man who gave an open account of his injuries and subsequent events. He reported 115kg in weight and 185cm tall. He had very large legs with swelling around both knees. He was only able to half squat. He had 110 degree flexion of his right knee and 130 degree flexion of his left knee. He was able to kneel on the floor on a temporary basis but was unable to sit back on his haunches. He had significant clicking in his left knee. The anterior draw test for his right knee was positive. He had significant crepitus in both knees, the left being greater than the right. He had retro-patellar pain in both knees on palpation and was tender over the medial joint line in his right knee as well as being tender over the lateral aspect. He had loss of quadriceps muscle tone in both legs and was observed to have difficulty negotiating one flight of stairs, which he did one step at a time, because of his quadriceps weakness, his inability to flex knees fully and instability of his right knee.”
Dr. Blight concluded that Mr. Kondakov’s left knee condition of chondromalacia patella was a permanent condition and that in her opinion he had a 10% whole person impairment under Table 9.2 and 10% under Table 9.5. In addition, she also concluded that Mr. Kondakov’s accepted right knee condition had a 10% whole person impairment under Table 9.2 and 30% under Table 9.5 of the Guide. (T21)
17. Dr. Blight gave oral evidence during which she confirmed her written statement. She said that on the two occasions that she saw Mr. Kondakov his knees were very swollen. She agreed that swelling in the knees can restrict flexion. She said that Mr. Kondakov’s right knee was significantly worse than his left knee.
18. A report of Dr. Homolka, occupational physician, dated 11 December 2002 was before the Tribunal. Dr. Homolka concluded Mr. Kondakov had:
(a)For his left knee condition – 0% impairment under Table 9.2 and 10% under Table 9.5; and
(b)For his right knee condition – 0% impairment under Table 9.2 and 20% under Table 9.5.
19. Dr. Thoo, occupational physician, provided a report dated 18 November 2003. He concluded that based on Table 9.2 of the Guide Mr. Kondakov had a 10% permanent impairment of the whole person based on his left knee condition and under Table 9.5 a 20% permanent impairment (exhibit 7).
20. There was agreement among the medical witnesses that variations in assessments of range of joint movement for the purposes of Table 9.2 can vary from day to day depending on such factors as swelling or no swelling, recent exercise or no exercise, measuring errors, measuring technique and whether the joint is moved voluntarily, actively or passively.
21. The relevant parts of the Guide and Tables 9.2 and 9.5 are as follows:
“PRINCIPLES OF ASSESSMENT
Throughout this guide emphasis is given to loss of function as a basis of assessment of impairment and as far as possible objective criteria have been used.
Impairment is measured against its effect on personal efficiency in the ‘activities of daily living’ in comparison with a normal healthy person. The measure of ‘activities of daily living’ is a measure of primary biological and psychosocial function such as standing, moving, feeding and self care.
The Impairment Tables
Part A of the Guide is based on the concept of ‘whole person impairment’ which is drawn from the American Medical Association’s Guides.
Evaluation of a whole person impairment is a medical appraisal of the nature and extent of the effect of an injury or disease on a person’s functional capacity and activities of daily living.
Part A of this guide is structured by assembling detailed descriptions of impairments into groups according to body system and expressing the extent of each impairment as a percentage value of the functional capacity of a normal healthy person. Thus a percentage value can be assigned to an employee’s impairment by reference to the relevant description in this guide.
Combined Impairments
It is important to realise that impairment is system or function based and that a single injury or disease may give rise to multiple loss of function. When more than one table applies to a single injury separate scores should be allocated to each functional impairment. Where two or more injuries give rise to the same impairment a single rating only should be given.
Double Assessment
The possibility of double assessment for a single loss of function must be guarded against. For example it would be inappropriate to assess a lower limb amputation by reference to both the amputation table (9.3) and the lower extremity table (9.2).
Where an employee suffers from more than one impairment the values are not added but are combined using the Combined Values Table. The purpose of this table is to give the total effect of all impairments, according to a formula, as a percentage value of the employee’s whole bodily system or function (see Table 14).
Introduction – These tables are intended to be used to assess impairment arising from specific joint lesions. Where the joints function normally but the use of a limb is restricted for other reasons, eg soft tissue injury, nerve injury or bony injury not involving joints, Table 9.5 should be used. These Tables can be used to assess the impairment of overall limb function from any cause. NOTE: either the musculo-skeletal table or Table 9.5 should be used – not both.
Assessment is in accordance with the range of joint movement. X-rays should not be taken solely for assessment purposes.
NOTE: Values are for one joint only. Where more than one joint is affected, values should be combined using the Combined Values Table (Table 14.1).
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 hallux
5 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 hallux
15 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
30 Loss of more than half normal range of movement of hip or knee
40 Ankylosis of hip or knee
NOTES: 1. …
2. …
3. …
4.Values are for one joint only. Where more than one joint is affected, values should be combined using the Combined Values Table (Table 14.1).
TABLE 9.5
Limb Function – Lower Limb
(Percentage Whole Person Impairment)
% DESCRIPTION OF LEVEL OF IMPAIRMENT
10Can rise to standing position and walk BUT has difficulty with grades and steps
20Can rise to standing position and walk but has difficulty with grades, steps and distances
30Can rise to standing position and walk with difficulty BUT is limited to level surfaces
50Can rise to standing position and maintain it with difficulty BUT cannot walk
65Cannot stand or walk.”
22. There were three doctors who found no whole person impairment in relation to Mr. Kondakov’s left knee on assessment using Table 9.2. Essentially they found a full range of movement of his left knee on examination. Those doctors were Gibberd, Low and Homolka.
23. There were two doctors who found a whole person impairment of 10% in relation to Mr. Kondakov’s left knee on assessment using Table 9.2. They were Doctors Blight and Thoo. They found, in effect, that there was a loss of less than half normal range of movement of his knee.
24. The various medical assessments lead the Tribunal to find that:
(a)On some occasions, possibly after activity, Mr. Kondakov’s left knee swells and he then experiences a loss of range of movement;
(b)On other occasions when his left knee is not swollen he experiences no loss of range of movement;
(c)Mr. Kondakov does not have a permanent loss of range of movement in his left knee; and
(d)Consequently, Mr. Kondakov has a permanent whole person impairment of 0% under Table 9.2 as a consequence of the injury to his left knee.
25. The decision under review, that the impairment to Mr. Kondakov’s left knee is not sufficiently significant to qualify for compensation, is affirmed.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed: .....................................................................................
C. O’Donovan, AssociateDate/s of Hearing 27 April 2004
Date of Decision 3 September 2004
Counsel for the Applicant Mr. King-Scott
Solicitor for the Applicant D’Arcys Solicitors
Counsel for the Respondent Mr. Derrington
Solicitor for the Respondent Australian Government Solicitor
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