Lara and K & S Freighters Pty Ltd (Compensation)
[2017] AATA 955
•26 June 2017
Lara and K & S Freighters Pty Ltd (Compensation) [2017] AATA 955 (26 June 2017)
Division:GENERAL DIVISION
File Number: 2016/2827
Re:Luis Lara
APPLICANT
AndK & S Freighters Pty Ltd
RESPONDENT
DECISION
Tribunal:Egon Fice, Senior Member
Date:26 June 2017
Place:Melbourne
The Tribunal sets aside the decision made by the Workers Compensation Claims Officer on 7 April 2016 and in substitution determines that Mr Lara should be paid compensation under ss. 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988. This matter is remitted to the Workers Compensation Claims Officer for the purpose of calculating Mr Lara's entitlement to compensation in accordance with the Tribunal's decision.
........................................................................
Egon Fice, Senior Member
WORKERS’ COMPENSATION - permanent impairment - level of impairment - lack of clinical signs - pain calculating compensation - impairment assessment - assessment tables - non-economic loss - impact of loss - major criteria -minor criteria.
Legislation
Safety Rehabilitation and Compensation Act 1988, ss. 4, 24, 27
Secondary Materials
Dorland’s Illustrated Medical Dictionary, 27th Edition and Tabor’s Cyclopedic Medical Dictionary
Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1
American Medical Association’s Guides to the Evaluation of Permanent Impairment fifth edition 2001
REASONS FOR DECISION
Egon Fice, Senior Member
26 June 2017
Mr Luis Lara was a driver employed by K & S Freighters Pty Ltd (K & S Freighters), commencing in about September 2011. On 11 September 2012 Mr Lara was injured at his workplace when he was run over by a forklift. He was taken to the Royal Melbourne Hospital by ambulance where he was diagnosed as having suffered a left ankle fracture type Weber C and Lisfranc fractures of both the left and right foot. He underwent open reduction and internal fixation of his left ankle and left Lisfranc fracture. Mr Lara was in hospital between 11 September 2012 and 17 September 2012 after which he was transferred to Epworth Rehabilitation where he remained until 5 November 2012.
Mr Lara lodged a Claim for Workers’ Compensation with K & S Freighters on 19 September 2012. In a determination made on 19 September 2012, K & S Freighters accepted liability to pay Mr Lara compensation in accordance with s. 14 of the Safety Rehabilitation and Compensation Act 1988 (the SRC Act) in respect of bilateral foot fractures and left ankle fracture sustained on 11 September 2012; medical treatment as deemed appropriate by a legally qualified medical practitioner pursuant to s. 16 of the SRC Act; and incapacity payments pursuant to s. 19 of the SRC Act.
On 24 September 2012 Mr Lara underwent significant surgery at the Royal Melbourne Hospital performed by Mr Andrew Oppy, an orthopaedic surgeon. Mr Lara was wheelchair-bound for three months following that operation. On 8 April 2013 Mr Lara underwent further surgery performed by Mr Oppy for the purpose of removing screws and plates from his left foot and toes.
Mr Lara had extensive physiotherapy post-surgery.
Dr LG Rothbart, Mr Lara’s general practitioner, issued a certificate of capacity on 21 June 2013 indicating Mr Lara was fit for sedentary work – four hours per day, two days per week. However, Mr Lara continued to experience foot pain, the precise location of that pain changing from time to time. In a letter dated 30 August 2013 from the Joslin Clinic it was reported that the pain he was then experiencing related to the altered alignment of his feet post injury and suggested that he be examined by a Podiatrist at the Clinic for the provision of orthotics.
Mr Lara was referred to another orthopaedic surgeon, Associate Professor Leo Donnan. In a letter dated 28 March 2014 Professor Donnan reported that Mr Lara had ongoing pain and disability in his left foot related to degenerative changes at the base of the first and second metatarsals at the tarsometatarsal joint level. Associate Professor Donnan requested that approval be given for Mr Lara to undergo formal arthrodesis of the joints and after appropriate treatment, the application of a hinged ankle/foot orthosis. The planned surgery was to be performed at St Vincent’s Private Hospital on 12 May 2014. Approval was granted and surgery went ahead.
Following that surgery, on 15 July 2014 Associate Professor Donnan reported that from an orthopaedic point of view, the fusions in his foot were then solid; his foot posture looked good; and there was no swelling but he still had some aching on the medial side of the foot probably at the level of the talonavicular joint. Associate Professor Donnan also said there was no evidence of any degenerative changes and Mr Lara needed a mobilisation program with appropriate support. He recommended a physiotherapy program and some hydrotherapy. Mr Lara was also getting new moulded insoles made to allow him to wear a lace-up work boot giving him better support for walking. Mr Lara reported that his foot felt better than it did prior to the surgery but there was still a long way to go to get him settled down.
In a report prepared by Workplace Rehabilitation Management (WRM) dated 17 July 2014, WRM recommended that Mr Lara, following continuing physiotherapy and the provision of orthotics and custom safety boots, partake in a graduated return to work program when medically appropriate, aiming at initially resuming on alternative office-based duties.
Associate Professor Donnan provided a further report dated 8 September 2014 in which he said he believed Mr Lara was fit for sedentary office work, starting at three hours per day and three days a week, gradually increasing over the next two months. Mr Lara was referred to have an injection of steroid and local anaesthetic into his left ankle to help dampen the symptoms and he needed to continue with physiotherapy and some hydrotherapy. Associate Professor Donnan concluded:
Mr Lara is going to have ongoing problems with both his feet and ankle, he needs to come to accept that and take on a more sedentary occupation but I do feel that he does put some obstacles in our way in returning to work and his current one is the need for steel cap boots to even return to work on a sedentary capacity.
In a letter dated 20 January 2015 a Compensation Manager with K & S Freighters approved the reasonable medical costs associated with Mr Lara having a consultation with Doctor Clayton Thomas, a Pain Specialist. Doctor Thomas provided a report in a letter dated 24 February 2015 in which he offered the following impressions:
(a)Mr Lara had sustained serious injuries to his left more so than his right foot and ankle;
(b)Mr Lara was coping well having made good adjustments with his lifestyle and had good active coping skills;
(c)he was not convinced that further surgical intervention would help unless subsequent investigations indicated otherwise;
(d)he was not convinced that formal rehabilitation had much to offer and it was more likely than not that Mr Lara would continue to need the assistance of a forearm crutch with or without rehabilitation;
(e)although changing Mr Lara’s medication was discussed, Doctor Thomas was not convinced that could lead to improvement; and
(f)Doctor Thomas accepted Mr Lara had no capacity to return to work and no prospect for that to be turned around.
Associate Professor Peter Steadman examined Mr Lara on 2 March 2015 and provided K & S Freighters with an Independent Medico-Legal Report dated 9 March 2015. In essence, Associate Professor Steadman opined that, taking account of his current symptoms, Mr Lara would be able to do more work; however, suitable duties would need to be found. Mr Lara could sit for 30 minutes and would require probably a 1 to 2 minute break every 20-30 minutes to relieve the burning he was experiencing in his foot. The medication he was presently on may have been too strong to allow him to drive a heavy vehicle. Associate Professor Steadman was also of the view that the treatment undertaken up to that time was effective but unlikely to be of any substantial value in the future.
Mr Lara lodged a further claim for Workers’ Compensation on 30 March 2015 in respect of depression which he said developed due to the problems he was having with the fracture sustained in both feet and left ankle.
K & S Freighters sought another Independent Medico-Legal Report from Dr Wasim Sheikh, a psychiatrist. Dr Sheikh examined Mr Lara on 5 May 2015 and provided a report. Dr Sheikh concluded that Mr Lara presented with a history reflective of the condition of adjustment disorder with mixed anxiety and depressed mood which was related to his workplace accident. He noted Mr Lara had not received treatment for his psychiatric condition and recommended he seek psychological counselling. Dr Sheikh was of the opinion that psychological intervention should help Mr Lara manage his symptoms and improve functioning. He was also the view that it would help increase his working hours.
In a letter dated 8 May 2015 K & S Freighters determined it was liable to pay compensation to Mr Lara under s. 14 of the SRC Act in respect of adjustment disorder.
On 3 August 2015 Mr Lara was examined by Dr Michael Bloom, an Occupational and Environmental Physician. At that time, Mr Lara told Dr Bloom he was working five hours on two days per week in a clerical position. He also told Dr Bloom he felt he was able to increase his hours if appropriate duties were made available to him. Dr Bloom was of the opinion that further invasive treatment of Mr Lara was unlikely to be helpful. In his view, future treatment should focus on managing his depressed and anxious mental state and that a graduated increase in hours of work would prove beneficial. Dr Bloom described Mr Lara’s barriers to rehabilitation as both physical and psychological.
Mr Lara lodged a claim with K & S Freighters on 24 August 2015 seeking compensation for permanent impairment and non-economic loss. The treating practitioner’s part was completed by Dr Luz Conejera, a General Practitioner.
In a letter dated 25 February 2016, a Senior Workers Compensation Claims Manager with K & S Freighters determined that Mr Lara failed to meet the level of impairment required for the payment of a benefit under s. 24 at the SRC Act and therefore did not satisfy the statutory requirements under s. 27 regarding non-economic loss.
On 23 March 2016 Maurice Blackburn lawyers, behalf of Mr Lara, wrote to K & S Freighters requesting a reconsideration of the determination made on 25 February 2016. On 7 April 2016 K & S Freighters, having reconsidered the initial decision, affirmed the determination made on 25 February 2016.
On 27 May 2016 Maurice Blackburn lawyers, on behalf of Mr Lara, lodged an application with the Tribunal seeking review of the 7 April 2016 decision. The issues arising out of this application, which are concerned with Mr Lara’s foot and ankle injury suffered on 11 September 2012, are as follows:
(a)identification of the impairment or impairments suffered by Mr Lara as a result of the injuries he sustained on 11 September 2012;
(b)whether the impairments identified are likely to continue indefinitely and can therefore be described as permanent in accordance with the SRC Act;
(c)if I should find that Mr Lara suffered a permanent impairment or impairments arising from his foot and ankle injuries, the degree of his impairment by the application of the Comcare Guide;
(d)if Mr Lara suffered a permanent impairment or impairments from his foot and ankle injuries, the amount of compensation payable to him pursuant to s. 24 of the SRC Act; and
(e)if Mr Lara suffered non-economic loss, the amount of compensation payable to him pursuant to s. 27 of the SRC Act.
COMPENSATION FOR PERMANENT IMPAIRMENT
Impairment
The word impairment is defined in s. 4 at the SRC act in the following way:
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.
It is not in issue that Mr Lara has suffered a degree of impairment as a result of the crush injuries he received in the 11 September 2012 accident. Despite significant surgical intervention followed by physiotherapy and the use of orthotic devices, Mr Lara continues to experience movement restrictions and pain.
Mr Wise, a physiotherapist, advised WRM for the purposes of providing a Progress Report to K & S Freighters, that as at 23 November 2014, Mr Lara’s range of movement and associated pain had remained unchanged. Furthermore, Mr Wise is recorded as having said:
… Mr Lara will have permanent restrictions (i.e. issues with uneven ground, weight-bearing tolerance and walking time) and the treatment focus now is to maximise fitness of rest of leg and whole body.
Associate Professor Steadman, in his 9 March 2015 report, summarised Mr Lara’s condition in the following way:
Removal of the metal may make a small difference but overall it is unlikely that he will fully recover back to his pre-injury and military state. The orthotics for his shoes continue to help but again he has symptoms. He has sought extensive medical advice, all of which has reportedly told him there is little more that can be done.
Dr Bloom examined Mr Lara 3 August 2015 and in his report he said the following having examined Mr Lara):
… There was a restricted range of movements in the ankle joint (extension and flexion), and there was also a slightly restricted range of movements in the mid foot (inversion and eversion). There was also slightly restricted active range of movements of the toes, probably resulting from soft tissue tendon damage as a result of the original crush injury.
…
Mr Lara has received excellent treatment for this very severe injury, although I think that further invasive treatment is unlikely to be helpful.
…
Although it is now 3 years since the original injury, I would be reluctant to say that his condition has fully stabilised and that he has reached maximal medical improvement. From the purely physical perspective he may have reached maximum improvement, but from the psychological and psychosocial perspective, I would like to think there is significant potential for improvement.
Mr Thomas Kossmann, an orthopaedic surgeon, in his report dated 26 February 2015 said:
… He has ongoing pain in both of his feet. He will not be able to walk for long distances, on uneven ground, up and down stairs, on inclines/declines, climb up and down ladders, kneel, squat or carry heavy items weighing more than 5 kg.
Associate Professor Steadman provided a further report dated 21 December 2015 following his examination of Mr Lara on 14 December 2015. He found that Mr Lara’s condition had stabilised and the only significant finding was scars on the dorsum of the left foot associated with a 50% restriction of motion of the left toes sagittally (arrow like; in an anteroposterior direction; in the same plane) and minor calf wasting on the left.
Associate Professor Steadman was asked to review the report prepared by Mr Kossmann and to address some further questions raised by K & S Freighters. Putting aside the pain issue for the present analysis, associate Professor Steadman said:
Logically in this case, there is evidence of restricted range of motion that allows us to assess the case using tables 9.1, 9.2, 9.3, 9.4.… Pain which is largely subjective but also has relevance from a point of view of gait analysis cannot be applied here through table 9.7 because there is evidence of physical impairment.
The reports to which I have referred above support the contention that Mr Lara has suffered an impairment resulting in a loss of use, damage and malfunction of his left ankle and foot. I find that Mr Lara has suffered an impairment as that expression is defined in the SRC Act.
Permanent impairment
Section 24 of the SRC Act deals with compensation for injuries resulting in permanent impairment. Subsection (2) provides:
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 preponderance of medical evidence points to Mr Lara’s physical impediments as being likely to remain indefinitely despite any further surgical intervention. The expression permanent is defined in s. 4 of the SRC Act as meaning likely to continue indefinitely.
Mr Lara was examined by Dr Clayton Thomas, a consultant in Rehabilitation and Pain Medicine, on 20 February 2015. Dr Thomas said it was clear that Mr Lara had sustained serious injuries to his left more so than his right foot and ankle. He described Mr Lara as coping reasonably well and that he seemed to have made good adjustments to his lifestyle. He was described as having very good active coping skills. Nevertheless, Dr Thomas said:
I was not convinced that further surgical intervention was likely to help him here but I told him that given that he was having more investigations performed I was happy to review him again with these investigations to be more definitive on this point.
I was not convinced that formal rehabilitation had much to offer him. I thought that it was more likely than not that he would continue to mobilise with one forearm crutch with or without rehabilitation.
…
I accepted that he had no capacity to return to work with no prospect for this to be turned around.
In a report dated 9 March 2015, Associate Professor Steadman said:
Mr Lara has sustained bad injuries to his feet when a forklift ran over his feet. Subsequently he has had surgery however the left foot continues to cause him the most trouble and he continues with review with his treating surgeon. Removal of the metal may make a small difference but overall it is unlikely that he will fully recover back to his pre-injury ambulatory state. The orthotics for his shoes continue to help but again he has symptoms. He has sought extensive medical advice, all of which has reportedly told him there is little more that can be done.
It appears that at least in August 2016, Mr Lara’s dominant problem was the pain he experienced in his left ankle. In his claim for permanent impairment and non-economic loss, Mr Lara said he had significant pain and discomfort in his feet and ankles daily. His left foot continued to cause him the most trouble with constant pain, the intensity varying depending upon the activity being undertaken. While there was some medical evidence which indicated that Mr Lara might be able to be relieved of his pain on a temporary basis, there was no certainty that such procedures would be successful.
Dr Andrew Beischer, an orthopaedic surgeon, in a brief report dated 16 August 2016, suggested it would be reasonable for Mr Lara to consider a diagnostic and possibly therapeutic ankle arthroscopy. He advised Mr Lara that the chance of further surgery succeeding in reducing his pain would be in the order of 60-70% with a small chance of actually being made worse.
Mr Lara’s treating General Practitioner, Dr Conejera, who completed the Treating Practitioner part of his application for permanent impairment and noneconomic loss, stated Mr Lara would need treatment for life Dr Conejera also said that Mr Lara may need another operation and that specialists he had consulted had little further to offer.
Following his examination by Dr Beischer, Mr Lara was again reviewed by Associate Professor Donnan who wrote a very brief report dated 17 October 2016 in which he said (A1):
I am in agreement with Dr Beischer that at this stage there is a little that we can offer this gentleman surgically and that the decision to undergo an ankle arthroscopy needs to be left to Mr Lara, has risk and benefits are definitely something that a patient needs to decide.
In his report of 26 February 2015 Mr Kossmann said this about Mr Lara’s prognosis:
Mr Lara’s prognosis is poor. He has developed chronic pain after suffering severe injuries to both of his feet and has difficulty walking for long distances. He requires further treatment with pain medication, anti-inflammatories, physiotherapy, hydrotherapy and possibly acupuncture. There is also a moderate to high chance that he will have to undergo further surgery for his left and right foot injuries and may have to undergo multiple arthrodesis procedures of the joints of his left and right foot in future. He may also have to undergo further surgery of his right and left ankle and subtalar joints depending upon his symptoms. I cannot give you an exact timeframe if and when this will become necessary.
Mr Kossmann also noted that he believed Mr Lara’s condition was likely to continue indefinitely irrespective of any treatment which he had recommended all which might become necessary in the months and years to come.
While the above evidence is perhaps not as fulsome as it could be, in particular regarding the possibility of further surgery, the weight of evidence seems to be that while he has a reasonable chance of having significant pain reduction by a further surgery, even if that were successful, his impairment would remain unchanged at least to some degree. Mr Lara has also had significant rehabilitative treatment over some three years which, while offering temporary relief, does not appear to be a solution to his impairment problem. I find that Mr Lara’s impairment is permanent for the purposes of the SRC Act.
The degree of impairment
The degree of impairment is to be established by reference to the Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1 (the Comcare Guide). Section 24 of the SRC Act relevantly provides:
…
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(7) Subject to section 25, if:
(a)the employee has a permanent impairment other than a hearing loss; and
(b)Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
…
There was considerable dispute between the parties regarding which Comcare Guide tables were appropriate in Mr Lara’s case. Mr Carey of counsel, who appeared on behalf of Mr Lara, contended that Mr Lara’s whole person impairment (WPI) was properly assessed on Table 9.7 of the Comcare Guide. On the other hand, Mr J Wallace of counsel, who appeared on behalf of K & S Freighters, submitted that the correct tables in Mr Lara’s case were 9.1 – 9.4. That being the case, Mr Wallace submitted that table 9.7 should not be used. Before assessing those competing contentions, it would help the reader to understand why there is a difference of opinion if I were to set down some fundamental instructions regarding the use of the Comcare Guide.
The Comcare Guide, under the heading Authority at page VIII, states:
This document is the new Guide to the Assessment of the Degree of Permanent Impairment. It may be referred to as ‘this guide’ or ‘Edition 2.1 of the guide’. This guide is binding on Comcare, licensed authorities and corporations, and the Administrative Appeals Tribunal (subsection 29 (4) of the SRC Act).
Part 1 of Edition 2.1 of the Comcare Guide applies to permanent impairment claims made under ss. 24, 25 or 27 of the SRC Act received by the relevant authority on or from
1 December 2011. In the introductory section dealing with principles of assessment, the Comcare Guide states the following, at paragraph 7, regarding percentages of impairment:
Most tables in Part 1, Division 1 provide impairment values expressed as fixed percentages. Where such a table is applicable in respect of a particular impairment, there is no discretion to choose an impairment value not specified in that table.…
Where a table provides for impairment values within a range, consideration will need to be given to all criteria applicable to the condition, which includes performing activities of daily living and an estimate of the degree to which the medical impairment interferes with these activities. In some cases, additional information may be required to determine where to place an individual within the range. The person conducting the assessment must provide written reasons why he or she considers the selected point within the range as clinically justifiable.
Part I of the Comcare Guide deals with the lower extremities – feet and toes, ankles, knees and hips. The introduction provides the following guide, particularly in circumstances where a condition cannot be assessed under one of the tables, 9.1 – 9.4. It states:
Where a condition cannot be assessed under one of the Tables 9.1, 9.2, 9.3 and 9.4, an assessment may be made under the provisions of the American Medical Association’s Guides to the Evaluation of Permanent Impairment fifth edition 2001.
If the medical assessor considers that the impairment is not adequately assessed using one of the Tables 9.1, 9.2, 9.3 and 9.4, and the condition does not cause a reduction in the range of motion of a joint but there is significant interference with gait, the medical assessor should consider the effect of the injury on the gait and determine the WPI rating using Table 9.7. Table 9.7 cannot be used if the condition causes a reduction in the range of motion of a joint and an assessment can be made under any one or more of Table 9.1, 9.2, 9.3 or 9.4.
Table 9.7 deals with the Lower Extremity Function. The introductory paragraphs at page 106 – 107, state:
Table 9.7 (see page 108) should only be used to assess impairment from objectively identified orthopaedic or neurological conditions arising in and affecting the lower extremities. It may not be used to assess impairment from conditions manifesting principally as pain with no clinically demonstrable lower extremity pathology.
…
A single assessment only may be made under Table 9.7, regardless of whether one or two extremities are affected by the injury. The impairment assessed under Table 9.7 is of overall lower extremity function, rather than that of individual extremities.
Before using Table 9.7 the medical assessor should check the instructions (see Part I – Introduction, page 91) preceding the specific joint impairment tables (Tables 9.1 – 9.4) and use Table 9.7 strictly in accordance with those instructions. In particular, Table 9.7 cannot be used with a condition causes a reduction in the range of motion of a joint and then assessment can be made under any one or more of Table 9.1, 9.2, 9.3 or 9.4.
The word pain is defined in the glossary of the Comcare Guide as: pain means physical pain. That expression is distinguished from mental distress which is referred to as suffering.
Dr Kossmann, in his 26 February 2015 report, explained why Mr Lara’s condition could not be adequately assessed under Table 9.1. He said:
Taking Mr Lara’s severe injuries to both feet and his left ankle together, I believe that I cannot adequately assess his impairment rating according to Table 9.1 and have therefore applied Table 9.7. For the orthopaedic component, the whole person impairment is 50%. Mr Lara is restricted walking and can only walk 25 m without crutches and walking in general is very restricted. He is not able to walk on uneven ground, up and down stairs, on inclines/declines, climb up and down ladders, kneel, squat or carry heavy items weighing more than 5 kg. Taking these facts together, I believe Mr Lara has a whole person impairment (WPI) as a result of his severe bilateral foot and left ankle injuries of 50% WPI according to Table 9.7.
The shortcomings in that assessment, with respect to Dr Kossmann, are obvious. He does not explain the basis for his belief that Mr Lara’s injuries to both feet and his left ankle cannot adequately be assessed under Table 9.1 or, for that matter, 9.2 and 9.3.
In his report of 21 December 2015, associate Professor Steadman also provided an opinion regarding Mr Lara’s degree of permanent impairment. To begin with, Associate Professor Steadman said the following based on his clinical examination:
Examination of the right foot in essence reveals that it looks normal. He has a full range of motion of his ankle, mid-foot and toe MPT joints. There is no sensory loss or dystrophy changes and subtalar joint movement is not painful. He has a 37 cm calf on the right and no tenderness of the tendo-achilles.
Assessment of the left foot reveals the two dorsal scars but these have matured significantly. His ankle range of motion is equal and symmetrical to the right side, as is the subtalar. He complains of some pain in the mid-foot. Toes have lost about 45% of sagittal movement compared to the right with range from 20-40% and again there is no evidence of dystrophy, although I did note his calf on the left is wasted at 34 cm compared to the right.
In summary, Associate Professor Steadman said that Mr Lara was assessable under the Comcare Guide using Table 9.1 and 9.2 although there were no substantial clinical signs present in the feet.
Associate Professor Steadman assessed Mr Lara’s degree of impairment under table 9.1 (regarding his right foot) at 0% and under 9.2 (for his ankles) at 0%. As for Table 9.7, Associate Professor Steadman said:
This table is not justified as he is assessable under the other tables although he does not have an impairment from anything other than scarring on the left foot and some minor lesser toes stiffness and minor calf wasting although in the tables they do not get any rating as it is still greater than the ranges in table 9.1, but that would not mean they are not applicable, procedurally leading the examiner to resort to table 9.7.
Associate Professor Steadman also referred to Mr Lara telling him that he sometimes fell spontaneously due to the pain in his ankle. He was not able to think of a clinically logical reason why that would be the case. This was explained by Mr Lara in a statement he made on 16 January 2017 which was taken into evidence. Mr Lara said, at paragraph 60:
I find my balance is not very good, and I have had to sit down quickly more than once, for fear of falling over. This is like a fall, and I go to the ground, but not by accident. One time, coming out of my front door I couldn’t move and couldn’t put pressure on my foot; there was intense pain across the top and front of my foot and ankle, like a nail. I didn’t have a choice and had to fall to the ground in a sort of sitting down very quickly kind of way.
Following that report, Associate Professor Steadman was asked by K & S Freighters on
2 February 2016 to provide a supplementary report. In particular, he was asked to review Mr Kossmann’s report of 26 February 2015. Associate Professor Steadman provided his supplementary report on 16 February 2016. Significantly, Associate Professor Steadman said:
Logically in this case, there is evidence of restricted range of motion that allows us to assess the case using tables 9.1, 9.2, 9.3 and 9.4. There does not appear to be a need for departure to the AMA Guides because the clinical findings are noted. Pain which is largely subjective but also has relevance from a point of view of gait analysis cannot be applied here through table 9.7 because there is evidence of physical impairment.
I have some difficulty with Associate Professor Steadman’s supplementary report. In his 14 December 2015 report he said: he [Mr Lara] does not have impairment from anything other than scarring of the left foot and some minor lesser toes stiffness and minor calf wasting… and after taking measurements of Mr Lara’s ankles, mid-foot, subtalar and forefoot during the assessment, he reported that the only significant finding was: scars on the dorsum of the left foot associated with a 50% restriction of motion of the left toes sagittal and minor calf wasting on the left. Following clinical examination, Associate Professor Steadman said Mr Lara had a full range of motion in his right ankle. He also said that Mr Lara’s [left] ankle range of motion was equal and symmetrical to the right side.
However, Associate Professor Steadman said in his supplementary report of 16 February 2016 that in this case, there was evidence of restricted range of motion allowing assessment using tables 9.1, 9.2, 9.3 and 9.4. That appears to be a contradiction of his earlier report. Both statements cannot be correct.
Associate Professor Donnan provided a further report dated 22 March 2016. Upon examining Mr Lara, he said:
On examining him today his foot posture looks excellent. There is no swelling nor distortion around the foot and ankle and the previous scars are well healed. On the lateral side of his ankle subcutaneously the plate on the fibula can still be felt, there is no tenderness around here and there was not a positive Tinel sign suggesting neuroma. He is tender over the anterolateral aspect of his ankle and down the medial side but his ankle range of motion was quite reasonable with 15 degrees of dorsiflexion and 25 of plantar flexion. The subtalar joint was nicely aligned with his heel in a neutral valgus position and the joint itself, although slightly stiff, still has a range of motion that’s functional and didn’t appear to be irritable. His midfoot which has previously been a significant problem is not irritable and he has a good range of motion.
In his oral evidence-in-chief, Mr Kossmann said that Mr Lara’s gait had changed. The medical dictionaries which I have consulted (Dorland’s Illustrated Medical Dictionary, 27th Edition and Tabor’s Cyclopedic Medical Dictionary) define the word gait as the manner or style of walking and antalgic gait as a limp adopted so as to avoid pain on weight-bearing structures (as in hip injuries) characterised by a very short stance phase and gait pattern in which the patient experiences pain during the stance phase and thus remains on the painful leg for a short time as possible.
When asked in cross-examination whether uneven wear in shoes is a manifestation of a change in a person’s gait, Mr Kossmann agreed. It was then put to Mr Kossmann that associate Professor Steadman noted that the footwear he had been using for two years showed no difference in wear of their soles, Mr Kossmann responded that it was a rough method. When examined by associate Professor Steadman, Mr Lara was said to be using a single crutch in his right hand. That was also the case when he appeared to give oral evidence at the hearing of his application. My observation of him at that time was that his gait was anything but normal. Nevertheless, I do not base my findings on that single observation.
I should also refer to the report of Dr Bloom who examined Mr Lara on 3 August 2015. Dr Bloom reported (page 179):
Mr Lara said he is 168 cm tall and weighs 80 kg, this would equate to a BMI of approximately 29. He walked with the somewhat hobbling gait, with a marked limp favouring his left leg. Examination of the lower limbs revealed no colour, temperature or vascular changes. There was significant wasting of the left calf musculature. There were healed surgical scars over the dorsum of the left foot.
Examination of the right foot and ankle revealed good alignment. There was a normal range of movement of the ankle and midfoot. The foot and ankle was essentially non-tender to palpitation.
Examination of the left foot and ankle revealed no evidence of significant deformity. There was a restricted range of movement of the ankle joint (extension and flexion), and there was also a slightly restricted range of movement in the midfoot (inversion and eversion).…
I am mindful that Dr Bloom’s examination was undertaken some months before the examinations by Associate Professor Steadman, Mr Kossmann and Associate Professor Donnan. Nevertheless, what does appear reasonably clear from the evidence is that Mr Lara’s ambulatory problems stem from ongoing pain in his left ankle and possibly foot. Mr Lara also told Dr Bloom that the pain in his left foot was activity and weight-bearing dependent. It affected the forefoot and the ankle area. As Associate Professor Donnan said in his report of 22 March 2016, which is the most recent medical report before me:
Overall it is extremely difficult to identify why he has ongoing pain and I would agree with Dr Bloom that a lot of this is neurogenic and is related to his psyche.
I do think however that we need to exclude any physical cause so I have arranged for him to have an MRI scan of the foot and ankle and then to have a series of diagnostic injections with local anaesthetic and Depomedrol first starting with the ankle joint and then the subtalar joint to see whether either of these relieve his pain.
In his witness statement, Mr Lara described that he began feeling more pain in his right foot recently particularly in the afternoon and at night. Nevertheless, he could move his right foot reasonably well. However, he described his left foot as being stiff and he could hardly move it. He described a burning, sharp pain and pins and needles sensations. The pain was constant. He then said this about his ability to ambulate:
My walking has been seriously affected by the incident. I almost always take my crutch, and elbow crutch for my right arm, when I leave the house. I can walk without the crutch, but I have to go more slowly, and stopped more frequently. It also hurts more. My bedroom is upstairs at home, and I can manage the stairs if I go very slowly, relying on the arm rail. Even with the crutch, my walking is very limited, and I have to stop repeatedly.
In the course of his cross-examination, Mr Kossmann confirmed that Mr Lara had difficulty standing with without support. When it was suggested to Mr Kossmann that even if table 9.7 were applicable, Mr Lara would not attract 50% WPI, he responded by saying that might be correct. When it was put to him that around 20% might fit, Mr Kossmann disagreed and suggested that was a bit of a guess.
I have considerable difficulty in understanding the way in which Associate Professor Steadman has arrived at the conclusion that Table 9.7 is not applicable in this case. In his first report, he determined that Mr Lara should be allocated 0% in respect of his right foot and 0% in respect of both ankles. He made no mention of the left foot. He did mention that Mr Lara did not have an impairment from anything other than scarring of the left foot and some minor lesser toe stiffness with minor calf wasting on the left side. Despite that, Associate Professor Steadman was of the view that Mr Lara was assessable under tables 9.1 and 9.2. I should also add that no medical practitioner who has examined Mr Lara diagnosed ankylosis (immobility and consolidation of a joint due to disease, injury, or surgical procedure).
As I have already pointed out above [42], the examiner does not have discretion to choose an impairment value not specified in an impairment table. Therefore, as Associate Professor Steadman has allocated Mr Lara 0% WPI under table 9.1 regarding his right foot, while there is a 0% grading in table 9.1, the criterion for that allocation is ankylosis of one of the second, third, fourth or fifth toes in position of function. Given that there was no diagnosis of ankylosis, it seems to me that Associate Professor Steadman was incorrect in allocating 0% WPI for his right foot. Associate Professor Steadman also allocated 0% WPI to both ankles. Table 9.2 deals with ankles. There is no provision on that table for a 0% WPI. The first gradation is 3%. Again, it seems to me to be incorrect to allocate 0% WPI on a table which does not have that value on it. Putting aside the ankylosis assessment, it seems to me to be logical that if it is suggested that a person has a 0% WPI on tables which are specifically designed to assess the degree of impairments to range of motion and/or deformity, making such a statement effectively means the person does not have an impairment. Yet, Associate Professor Steadman appears to have accepted that Mr Lara suffers impairments as a consequence of his workplace accident. I find his rationale for the assessments regarding degree of impairment to be incorrect. I therefore need to examine whether Table 9.7 may be applied.
Given what I have said above regarding the assessments Associate Professor Steadman made under Tables 9.1 and 9.2 of the Comcare Guide, it seems to me that Mr Kossmann was correct in stating that Mr Lara’s impairment is not adequately assessed using those tables. Furthermore, the subjective and objective evidence before me indicates Mr Lara suffers a significant interference with his ability to walk, or, as described in the Comcare Guide, gait. All of the medical practitioners who have examined him have indicated that his condition has not caused a reduction in the range of motion of a joint even though subjectively, Mr Lara feels as if there is some stiffness in his left ankle/foot. Even if there is some stiffness from an objective analysis, it is reasonably clear that would not permit an assessment to be made under Tables 9.1 or 9.2.
In examining whether Mr Lara’s condition can be assessed under Table 9.7, I am mindful that table 9.7 cannot be used to assess impairment from conditions manifesting principally as pain with no clinically demonstrable lower extremity pathology. The multiple medical reports which I had before me in evidence, without exception, describe his pain arising or associated with either standing or walking. This was concisely described by Dr Bloom in his report of 3 August 2015 where he said:
The barriers to this man’s rehabilitation and increase in hours relate to both physical and psychological injury. There is no doubt that this man is experiencing significant pain, particularly in his left foot and ankle, and this pain is activity dependent. However, I think it is also likely that his depressed and anxious state of mind is contributing, to some extent, to an increased perception of pain and disability.
Table 9.7 cannot be used where the condition causes a reduction in the range of motion of a joint and an assessment can be made under Table 9.1 or 9.2. As I have already said above, it is reasonably clear than an assessment cannot be made under those tables, essentially for the reason that there is no reduction in the range of motion of a joint but there is significant interference with his gait. For those reasons, I find that in this case it is appropriate to go to Table 9.7 to assess Mr Lara’s WPI. To do so would give effect to the intention of allocating an impairment rating to a person who has suffered a workplace injury. As explained in the introductory paragraphs to the Comcare Guide:
Under subsection 4(1) of the SRC act, 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’. It relates to the health status of an individual and includes anatomical loss, anatomical abnormality, physiological abnormality, and psychological abnormality. The degree of impairment is assessed by reference to the impact of that loss by reference to the functional capacities of a normal healthy person.
Table 9.7, which deals with Lower Extremity Function, sets out the impairments under two columns, titled Major Criteria and Minor Criteria. At least one of the descriptors regarding the nature of the impairment under Major Criteria must be present and at least two for those falling under the Minor Criteria column. The Major Criteria for 50% WPI are:
Walks at a very slow pace in comparison with peers on level ground
Or
Walking is restricted to 25 m or less (may be able to walk further after resting).
The Minor Criteria for 50% WPI are:
Is restricted to walking around house.
Demonstrated medical need for a quad stick or walking frame as support when standing and walking.
Is unable to negotiate any steps or ramps.
Is unable to rise from sitting to standing position without personal assistance and is unable to stand without support.
Mr Kossmann, in his analysis when allocating a 50% WPI to Mr Lara under Table 9.7, referred to the factors I have set out above at [46]. With respect to Mr Kossmann, the restrictions he has relied on to arrive at his 50% WPI appear to be inconsistent with Mr Lara’s witness statement which he made on 16 January 2017 and, in fact, what it appears Mr Lara told Mr Kossmann. In particular, Mr Kossmann recorded that Mr Lara could only walk for 25m without crutches and was very limited. He also reported he cannot go shopping.
The first point I must make is that that the description regarding walking being restricted to 25 m or less on Table 9.7 makes no reference to crutches. It appears to apply whether or not crutches are used. In his witness statement, Mr Lara said that his walking had been seriously affected by the incident and that almost always he took his crutch with him when he left the house. He said he could walk without the crutch but had to walk more slowly and stopped more frequently. As for going upstairs, Mr Lara said that the bedroom at his home is upstairs and he can manage the stairs if he went slowly, relying on the arm rail. As for the speed with which he is able to walk, Mr Lara’s witness statement does not establish whether that is a very slow pace in comparison with peers. While I accept that he walks slowly, it is difficult to describe that as a very slow pace. He did say that he needed to go very slowly when he was walking in bare feet. That may be, but there was insufficient evidence for me to make a finding that he walked at a very slow pace in comparison with peers on level ground. On the basis of that evidence alone, I find Mr Lara did not meet at least one of the Major Criteria in Table 9.7.
I should also mention that Mr Lara said in his witness statement that he could walk without the crutch while inside the house. In his oral evidence he confirmed that he used furniture to support himself when necessary. In his oral evidence Mr Lara was asked whether he used a walking frame or quad stick and he said he did not. He made no mention of being unable to rise from sitting to a standing position without personal assistance. As I understood his oral evidence, he did use house furniture to assist him in standing and although he used that furniture to steady himself when walking around the house, I did not understand him to say he could not stand without support.
Taking into account Mr Lara’s oral and written evidence as well as reports of what he conveyed to the various medical practitioners who have examined him, the highest level of WPI which appears to fit the description of his mobility capacity appears to be 20% WPI. At that level, the Major Criteria require state:
Walks at a moderately reduced pace in comparison with peers on level ground
Or
Walking is restricted to 250 m or less (may be able to walk further after resting).
As for the Minor Criteria, they state:
Legs give way occasionally causing falls.
Is unable to negotiate three or more stairs or a ramp (up and down) without use of a walking aid or hand rails.
Is unable to rise from sitting to standing position without the use of one hand but can stand without support.
I find that the evidence supports at least one of the Major Criteria and two of the Minor Criteria. Mr Lara’s WPI is, appropriately, 20%.
NON-ECONOMIC LOSS
Section 27 (1) of the SRC act provides:
Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
Having found that Mr Lara has suffered a permanent impairment and that K & S Freighters is liable to pay compensation in accordance with s. 24 of the SRC Act, I find that s. 27 applies to Mr Lara. The only issue is the degree of economic loss to which he is entitled. That assessment must be performed under Part 1 Division 2 of the Comcare Guide.
As is explained in the introduction to the Comcare Guide:
Non-economic loss may be characterised as the ‘lifestyle effects’ of an impairment. ‘Lifestyle effects’ are a measure of an individual’s mobility and enjoyment of, and participation in, social relationships, and recreation and leisure activities.
Dr Conejera completed the non-economic loss portion of Mr Lara’s compensation claim for permanent impairment and noneconomic loss. She concurred with Mr Lara’s assessment on each element as follows:
Pain – 4
Suffering – 4
Loss of Amenities – 3
Social Relationships – 3
Recreational and Leisure Activities – 5
Other Loss – 1
In his report dated 14 December 2015 Associate Professor Steadman said this about non-economic loss.
In view of the findings reported, I would consider given the subjectivity of the non-economic loss questionnaire this seems to be much as he has reported and therefore the score is in essence would be the same.
I have examined the narrative provided by Mr Lara regarding each of the above elements and compared his description of the level of effect regarding each element with the tables set out in Part 1 Division 2 dealing with the Assessment of Non-Economic Loss. I find that the assessments made by Dr Conejera and Associate Professor Steadman are consistent with those tables.
Applying Table B6 regarding the calculation of non-economic loss, results in the following total scores:
Pain – 4 X 0.5 = 2
Suffering – 4 X 0.5 = 2
Mobility – 3 X 0.6 = 1.8
Social relationships – 3 X 0.6 = 1.8
Recreation and leisure – 5 X 0.6 = 3
Other loss – 1 X 1 = 1
TOTAL = 11.6
Accordingly, the percentage of non-economic loss is calculated as follows:
11.6÷15×100 = 77.3 %
CONCLUSION
I have found, on the evidence presented to me on hearing this matter, that Mr Lara has suffered a permanent impairment as that expression is defined in the SRC Act. Therefore, Mr Lara is entitled to compensation for permanent impairment in accordance with s. 24.
There was no dispute between the parties regarding the non-economic loss assessment and I have found that the evidence before me supports Mr Lara’s claim regarding this item.
Accordingly, I find that the reviewable decision made by the Workers Compensation Claims Officer for K & S Freighters was not the correct decision. I set aside that decision and remit the matter to the Claims Officer for the purpose of calculating the compensation which should be paid to Mr Lara under ss. 24 and 27 of the SRC Act.
The parties have seven days in which to provide submissions to the Tribunal regarding costs.
I certify that the preceding 84 (eighty-four) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member
........................................................................
Associate
Dated 26 June 2017
Date(s) of hearing: 20 February 2017 Counsel for the Applicant: Mr Mark Carey Advocate for the Applicant: Ms Jessica May Solicitors for the Applicant: Maurice Blackburn Counsel for the Respondent: Mr John Wallace Advocate for the Respondent: Mr Paul Mentor Solicitors for the Respondent: Clarke Legal
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