Koumis and Comcare

[2007] AATA 2070

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2070

ADMINISTRATIVE APPEALS TRIBUNAL                No.   V 200501157

GENERAL ADMINISTRATIVE DIVISION
Re		KOULA KOUMIS

Applicant

And COMCARE

Respondent

DECISION

Tribunal: G. D. Friedman, Senior Member

Date:19 December 2007

Place:Melbourne

Decision: The Tribunal sets aside the decision under review and substitutes the decision that Ms Koumis suffers 10% whole person impairment. The Tribunal orders that Ms Koumis’ costs be paid in accordance with s 67 of the Safety, Rehabilitation and Compensation Act 1988.

(sgd) G.D.Friedman

Senior Member

COMPENSATION – pain in left knee – injury sustained in 1992 – claim for permanent impairment – whether impairment may be apportioned by non-compensable factors

Safety, Rehabilitation and Compensation Act 1988 ss 4, 24, 28, 67

Carson v Comcare [2004] FCAFC 204

Comcare v Amorebieta (1996) 66 FCR 83

Comcare v Fiedler (2001) 115 FCR 328

Comcare v Moon (2003) 75 ALD 160

Martin v Australian Postal Corporation (1999) 29 AAR 420

Re Stewart and Comcare [2003] AATA 27

Re Williams and Australian Postal Corporation (AAT 12695, 11 March 1998)

Whittaker v Comcare (1998) 86 FCR 532

REASONS FOR DECISION

19 December 2007  G.D. Friedman, Senior Member

1.      Koula Koumis suffered an injury to her left knee on the way to work for the Department of Veterans’ Affairs on 11 February 1992.  The respondent accepted liability to pay compensation for strained left knee cartilage.  Ms Koumis has presented to various medical practitioners since then and has complained of ongoing pain in her left knee.

2.      On 16 July 1998 Ms Koumis lodged a compensation claim for permanent injury in respect of her knee condition.  On 27 April 1999 the respondent refused the claim on the basis that her impairment was not permanent as there was a strong likelihood that her condition would improve if she lost weight.  On 21 March 2005 Ms Koumis lodged a further claim, which was refused because she did not meet the threshold 10% permanent impairment.  On 14 December 2005 the respondent affirmed the decision.

THE ISSUES

3.        The issues before the Tribunal are:

·The nature of the left knee condition;

·whether Ms Koumis has suffered permanent impairment in relation to her knee condition under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act);

·if so, whether the impairment reaches the threshold specified in the SRC Act for compensation; and, if so;

·whether the level of impairment should be reduced by apportioning work-related and non work-related factors.

WHAT IS THE NATURE OF THE LEFT KNEE CONDITION?

4.        Ms Koumis told the Tribunal that in 1982 she began work at the Anzac Veterans’ Hostel in Melbourne as a cleaner, then as a kitchen hand and a cook.  She said that on 11 February 1992 she slipped on wet steps outside her front door on her way to work and twisted her left knee.  She suffered pain, discomfort and swelling of the knee, and attended the Bridge Street Clinic on 17 February 1992 where she was treated with tablets for the pain, and returned to full-time restricted duties until she was made redundant in 1995 when the hostel closed.  Ms Koumis said that she had not experienced any knee problems before the incident.

5.        In 1996 Ms Koumis began work as a nanny.  She stated that she continued to suffer knee pain, and in 1998 an arthroscopy was performed on her knee.  An MRI scan in 1998 did not reveal any abnormality.  Ms Koumis said that since 1998 she has tried to exercise regularly by walking up to two kilometres 2 or 3 times per week for about 40 minutes each time.  She said that she walks at a normal pace and stops after about 500 metres.  She explained that her knee has caused almost constant pain, and she takes anti-inflammatory medication and tablets each day.  She said that she avoids kneeling and squatting, and is unable to sit for extended periods.  Her husband and mother help with household tasks including cleaning, cooking and gardening.  She is able to drive an automatic motor vehicle.

6.        Ms Koumis stated that before her injury she weighed about 75–80 kilograms, but the inability to exercise freely because of the knee pain caused her weight to increase by about 20 kilograms.  She said that in 2004 she was diagnosed with bowel cancer and her doctor recommended that she lose weight.  She said that in April 2007 she joined a gymnasium and attends twice each week for sessions using a stationary bicycle, and has lost about 3 kilograms.  She expressed disappointment that she is no longer able to engage in activities such as bushwalking, dancing and playing with her grandchildren.  She said that her right knee has not caused her any problems apart from minor injuries sustained in a fall at a supermarket in 1990.  Those injuries healed soon afterwards.

7.        Under cross-examination Ms Koumis agreed that she was slightly overweight before the 1992 injury, but that she did not commence gymnasium attendance until recommended by her doctor in 2007.  She said that she has not considered other weight-reduction options.  Ms Koumis agreed that the medical records show that for varying periods such as 1993 to 1995 she did not present for treatment, but said that since the injury she has been in constant pain.

8.        In a report dated 17 July 1997 (T20) Mr D. Bracy, orthopaedic surgeon, stated that Ms Koumis was referred to him by her treating doctor shortly after the injury.  He described her as an obese woman with tenderness on the medial side of the knee.  X-rays showed no bone injury.  Mr Bracy concluded that she may have sustained a patello-femoral injury, and recommended physiotherapy.  He examined her again in August 1993 and October 1996 when she presented with persisting symptoms of pain.  He said that she might have a medial meniscus tear, and that an arthroscopy would be desirable.

9.        In a further report dated 7 November 2002 (Exhibit A3) Mr Bracy said that an arthroscopy was performed on 3 February 1998 and revealed a small blistered area involving the central portion of the medial ridge of the patella.  As Ms Koumis continued to experience pain in her knee he referred her to a vascular surgeon, who reported in 1998 that she had features of a pain syndrome affecting the knee rather than a complex regional pain syndrome Type 1.  A 1999 CT scan revealed no abnormalities.  Mr Bracy said that he last saw her in 2000 and her symptoms were much the same.  He concluded that her knee injury was a patello-femoral injury and that conservative treatment measures were appropriate.

10.      In oral evidence Mr Bracy noted that symptoms had occurred only in the left knee, with the logical conclusion that the 1992 injury had caused the ongoing pain.  He stated that injuries are more difficult to treat in an obese person, and that obesity could compromise efforts to treat the pain.  He added that Ms Koumis’ weight has exacerbated her condition but that the cause was the 1992 injury.  Under cross-examination he said that he would not necessarily have expected Ms Koumis’ symptoms to have lessened or resolved at the time of the arthroscopy because each patient’s injuries are different and symptoms may fluctuate.

11.      In a report dated 6 June 2006 (Exhibit A5) Mr R. Miller, orthopaedic surgeon, stated that he examined Ms Koumis for assessment.  He diagnosed a musculo-ligamentous strain in her left knee with features of chronic pain syndrome, and noted that the arthroscopy findings were normal apart from a blistered area of articular cartilage on the patella.  Mr Miller said that the 1992 injury has substantially stabilised since 1998.  In oral evidence Mr Miller said that Ms Koumis would probably not be in her current position if not for the 1992 injury, which was the catalyst for her condition.  Bilateral tracking of the patella might be relevant.  Under cross-examination he agreed that that obesity would be a factor in her ongoing condition, but is not the primary factor.

12.      Dr C. Constantinou, general practitioner, told the Tribunal that he was Ms Koumis’ treating doctor from 1989 to 2004.  In a report dated 30 June 1993 (T8) he stated that initially he diagnosed knee strain with injury to the medial meniscus.  In a further report dated 13 August 1996 (Exhibit A6) he described her attendances in 1992, 1993, 1995 and 1996, and noted that she complained of continuing symptoms.  Dr Constantinou said that a relevant factor was that Ms Koumis was overweight, which may have contributed to the severity of the injury.  In oral evidence he said that her numerous presentations at his clinic were consistent with the 1992 injury.  He confirmed that there was one attendance regarding the right knee, but otherwise that knee had not caused any problems.  He said that he formed the view that Ms Koumis was honest and conscientious in her presentation and always sought to return to work.

13.      In a report dated 16 July 1998 (T22) Mr H. Hadley, orthopaedic surgeon, diagnosed chondromalacia in both knees, and stated that Ms Koumis aggravated the condition in her left knee in the 1992 injury.  He also said that Ms Koumis is overweight, which aggravates the condition.  Mr Hadley stated that Ms Koumis told him she has difficulty walking down steps and grades, and when she walks in the flat for about ten minutes she needs to stop for a few minutes due to pain in her left knee.  On examination he reported full extension and flexion to 90 degrees in her left knee.  He said that the condition is stabilised.

14.      In a report dated 23 December 1998 (T33) Dr P. Blombery, consultant physician, stated that on examination Ms Koumis was markedly overweight.  He said that her left knee was very tender on pressure over the medial border of the knee, and the knee had a full range of movement.  Dr Blombery said that tests showed no evidence of difference in sympathetic innervation between the two knees, making it extremely unlikely that she had any component of sympathetically maintained pain.  He concluded that the diagnosis was chronic pain syndrome affecting the knee, complicating a knee injury sustained during her employment in 1992.  He said that the condition was stabilised and permanent.

15.      In a letter to the respondent dated 20 July 1998 (T24) seeking approval to conduct a MRI scan on Ms Koumis’ left knee, Mr R. Howells, orthopaedic surgeon, stated that although the cause of her pain was unclear, he strongly suspected that most of her trouble was patello-femoral in nature and related primarily to her weight.  Under cross-examination he said that the 1992 injury and other factors might have contributed to her knee pain.

16.      In a report dated 23 September 2005 (T43) Dr A. Webster, occupational physician, Health Services Australia, stated that Ms Koumis told him that she walked regularly and that her knee swells after about 60–90 minutes.  He diagnosed left knee chondromalacia patellae, with some predisposition to maltracking of the patella.  He observed that she had difficulty walking up and down stairs.  In oral evidence Dr Webster said that Ms Koumis told him she could walk for 30–40 minutes, covering two or three kilometres, stopping every 500 metres.

17.      In a report dated 8 April 1999 (T34) Mr M. Shannon, orthopaedic surgeon, stated that Ms Koumis suffers from degenerative change in her left knee particularly affecting the patellofemoral joint, due to a combination of obesity and a lateral tracking patella, associated with a twisting injury in the course of her employment.  He said that if she loses weight there would be a reduced load on her joints, and the symptoms may be reduced.  Under cross-examination Mr Shannon said that Ms Koumis showed signs of mild chondromalacia, which can produce the symptoms that she described.  He stated that the 1992 injury is a contributing factor to Ms Koumis’ knee problems, and not the cause.  He agreed that any tracking problem and obesity would be bilateral in that there would be consequences for both knees.

DID THE 1992 INJURY RESULT IN PERMANENT IMPAIRMENT?

18. Section 24 of the SRC Act provides for the payment of compensation for injuries resulting in permanent impairment:

24  Compensation for injuries resulting in permanent impairment

(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.

(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:

(a)       the duration of the impairment;

(b)       the likelihood of improvement in the employee’s condition;

(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and

(d)       any other relevant matters.

…

The words permanent and impairment are defined in s 4(1) of the Act as follows:

permanent means likely to continue indefinitely.

impairment means 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.

19.      Ms Koumis said that her condition is permanent.  She emphasised that the knee pain has continued since the 1992 injury and that there is little likelihood of improvement, although she acknowledged that further exercise through attendance at the gymnasium should help her to lose weight and place less stress on her knee.  She stated that she has followed the advice given by her doctors, and has taken all reasonable rehabilitative treatment.

20.      The Tribunal takes into account that Mr Hadley, Mr Miller and Dr Blombery agree that the left knee condition has stabilised and is ongoing.  The medical records confirm that there were no reported symptoms of left knee pain before the 1992 injury, and the right knee pain suffered in a fall in 1990 appears to have resolved soon afterwards.  In considering all the material the Tribunal accepts Ms Koumis’ evidence that she has suffered pain in her left knee continuously in the 15 years since the 1992 injury and that this is likely to continue indefinitely.

21. The Tribunal accepts Ms Koumis’ evidence that she has followed appropriate medical advice and on the medical evidence the Tribunal finds that the condition has stabilised and is unlikely to improve. She has lost about three kilograms by attending a gymnasium. Although medical evidence was to the effect that she would benefit from further weight loss, there is no guarantee that this would result in an improvement in the condition, and her failure to do so does not mean that all reasonable rehabilitative treatment has not been undertaken. In all the circumstances the Tribunal finds that Ms Koumis has suffered permanent impairment under the SRC Act.

WHAT IS THE LEVEL OF PERMANENT IMPAIRMENT?

22. The lump sum amount of compensation which is payable in accordance with s 24 of the SRC Act is calculated by reference to the degree of permanent impairment which, under s 24(5), is to be determined in accordance with the provisions of the approved Guide, namely, the Guide to the Assessment of the Degree of Permanent Impairment prepared by Comcare in accordance with s 28 of the SRC Act. Under s 24(7), where it is determined that the relevant degree of permanent impairment is less than 10%, compensation is not payable under s 24 (except in the case of certain specific categories of impairment, none of which is relevant here).

23.      The approved Guide contains the impairment tables which form the basis of assessment of the degree of permanent impairment.  Each table contains a description of the level of impairment and assigns a percentage of whole person impairment, that is, the impairment of the functional capacity of a normal healthy person to each description.  Tables 9.2 and 9.5 relate to lower extremity joints and lower limb function respectively, and set out the descriptions of levels of impairment, and the corresponding percentages of whole person impairment:

TABLE 9.2

…

%  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

…

TABLE 9.5

…

%  DESCRIPTION OF LEVEL OF IMPAIRMENT

10   Can rise to standing position and walk BUT has difficulty with grades and steps

20   Can rise to standing position and walk but has difficulty with grades, steps and distances

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

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

24.      Mr Miller assessed the level of whole person impairment as 20% under Table 9.5 of the Guide.  Mr Hadley assessed the degree of permanent impairment as 10% under Table 9.2 and 20% under Table 9.5.  In a further report dated 17 July 2001 (Exhibit A10) Mr Hadley said that he re-examined Ms Koumis and that his assessment of impairment under Table 9.2 was now 0% but the impairment under Table 9.5 remained unchanged.  Dr Blombery assessed the level of permanent impairment as 20% under Table 9.5.

25.      Dr Webster assessed her impairment at 0% under Table 9.2 and 10% under Table 9.5.  Mr Shannon assessed the level of impairment as 10% under Table 9.2 or Table 9.5, and in oral evidence stated that his assessment of an impairment of 10% was due to Ms Koumis’ ability to walk distances.

26.      In Whittaker v Comcare (1998) 86 FCR 532 the Full Federal Court of Australia held that, where both Table 9.2 and Table 9.5 in the approved Guide are applicable, and the application of one of those Tables would result in a determination of a higher degree of permanent impairment than the application of the other table, the Table whose application would result in a determination of a higher degree of permanent impairment (therefore giving a more favourable result to the employee) must be applied. The matter for the Tribunal’s determination is, therefore, whether the degree of permanent impairment of the applicant resulting from his left knee injury is 10%, or more, under Table 9.5.

27.      In Comcare v Moon (2003) 75 ALD 160 the Federal Court said (at 171):

“The term ‘difficulty’ in…table 9.5 is not a term of art, but carries its ordinary meaning: Comcare v Fiedler (2001) 115 FCR 328 at [22]; Whittaker v Comcare (1998) 86 FCR 532 at 538…”

In Comcare v Fiedler (2001) 115 FCR 328 the Federal Court stated that difficulty applies where a person finds it troublesome or not easy to do tasks…

28.      The Tribunal accepts Ms Koumis’ evidence, supported by the history she has given to various medical practitioners, that she tries to exercise by walking several times each week, and that she walks up and down stairs with difficulty and uses hand rails wherever possible.  In all the circumstances the Tribunal finds that Ms Koumis can rise to a standing position and walk but experiences difficulty with grades and steps.  The Tribunal also accepts her evidence, and the evidence given by Dr Webster and Mr Shannon, that she is able to walk for several kilometres and she stops every 500 metres, so that she does not have difficulty with distances.  In all the circumstances the Tribunal finds that the level of permanent impairment is 10% under Table 9.5.

SHOULD THE LEVEL OF IMPAIRMENT BE REDUCED BY APPORTIONING WORK-RELATED AND NON-WORK-RELATED FACTORS?

29.      Dr Webster apportioned 7–8% of the whole person impairment solely to work factors, and 2–3% to obesity, constitutional factors and the ageing process.  In oral evidence he said that previously he had never been asked to apportion a permanent impairment into work-related and non work-related factors, and agreed that the 1992 injury was the catalyst for Ms Koumis’ symptoms.  Mr Shannon, in assessing the level of impairment at 10% under Table 9.5, said that this could be discounted by half because of contributing factors including a lateral tracking patella and Ms Koumis’ obesity.  Under cross-examination Mr Shannon stated that an apportionment is appropriate because the injury was only one of the factors contributing to the left knee pain.

30.      In relation to the aggravation of pre-existing conditions the Guide states (at page 6):

Where it is possible to isolate the compensable effects of an injury upon a pre-existing or underlying condition the assessment of the degree of permanent impairment should reflect only the impairment due to those compensable effects.

In Comcare v Amorebieta (1996) 66 FCR 83 Jenkinson J stated at 96:

The measure of that compensation is the degree of permanent impairment which has resulted from the aggravation of the disease, and in contemplation of law the degree of impairment to which the aggravation brings the respondent's spine is caused by - 'results from' - that aggravation, whatever the lesser degree of impairment was which preceded the aggravation and whatever the extent to which events and degenerative processes preceding that aggravation contributed to cause that degree of impairment.

31.      In Re Williams and Australian Postal Corporation (AAT 12695, 11 March 1998) the Tribunal held that the impairment rating of 20% should be reduced by two-thirds because the applicant’s expert was able to allocate a percentage of impairment attributable to work as one-third of the loss of range of movement in relation to aggravation of a pre-existing condition.  In Carson v Comcare [2004] FCAFC 204 the Full Federal Court found no error of law where the Tribunal was satisfied that it was possible to isolate the compensable effects of the work-related injury on a pre-existing condition.

32.      In Martin v Australian Postal Corporation (1999) 29 AAR 420 Burchett J stated (at 433):

There will perhaps be many cases in which it will be very difficult to determine whether and how this provision of the Guide can be applied.  Whilst it may be possible…to isolate the compensable effects of a further injury, it would be impossible to isolate those effects in, for example, many cases of previously not disabling or only mildly symptomatic diseases…If there be any ambiguity,…the remedial nature of the legislation would require it to be construed liberally, and not restrictively…

In Re Stewart and Comcare [2003] AATA 27 the Tribunal was able to isolate the compensable effects of a third injury on the applicant’s pre-existing condition, so the degree of permanent impairment reflected only the impairment due to those compensable effects.

33.      In the matter under review the Tribunal is satisfied that Ms Koumis’ left knee was asymptomatic before the 1992 injury.  As there has been no evidence of pain to the right knee since the injury, and no pathology of symptoms in that knee, the Tribunal cannot be satisfied that any bilateral patella maltracking is a pre-existing condition.  Similarly on all the evidence the Tribunal concludes that at the time of the 1992 injury Ms Koumis was overweight, and her weight increased after the 1992 injury in part because of her inability to exercise as much as previously.

34. The Tribunal takes into account that Dr Webster and Mr Shannon apportioned non work-related factors. None of the other medical witnesses did so. There is no medical evidence to satisfy the Tribunal that in the absence of the 1992 injury and ongoing pain Ms Koumis’ previously asymptomatic condition would have become symptomatic. The only mention of apportionment in the Guide refers to aggravation, and the Tribunal does not accept that the SRC Act requires apportionment in circumstances such as the present case where there is no aggravation of an underlying or pre-existing condition. In any event, apportionment on the basis of obesity is purely speculative.

35.      For these reasons the Tribunal concludes that the permanent impairment is 10% and that this cannot be apportioned between work-related and non work-related factors.

DECISION

36. The Tribunal sets aside the decision under review and substitutes the decision that Ms Koumis suffers 10% whole person impairment. The Tribunal orders that Ms Koumis’ costs be paid in accordance with s 67 of the Safety Rehabilitation and Compensation Act 1988.

I certify that the thirty-six [36] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Senior Member

(sgd) Mara Putnis

Associate

Dates of hearing:  28 and 29 August 2007, 7 December 2007

Date of decision:  19 December 2007

Counsel for applicant:                  Mr P. Trigar
Solicitor for applicant:                  Maurice Blackburn
Counsel for respondent:              Mr J. Lenczner
Solicitor for respondent:              Dibbs Abbott Stillman