Lidgett and Comcare (Department of Veterans' Affairs)
[2003] AATA 910
•16 September 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 910
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2002/178
GENERAL ADMINISTRATIVE DIVISION ) Re MARTIN LIDGETT Applicant
And
COMCARE (DEPARTMENT OF VETERANS’ AFFAIRS)
Respondent
DECISION
Tribunal Mr S. Webb, Member Date16 September 2003
PlaceCanberra
Decision The decision under review is set aside and in substitution therefor the Tribunal decides that the Applicant has a whole person impairment of 20 percent under Table 9.5 of the Guide to the Assessment of the Degree of Permanent Impairment.
The matter is remitted to the Respondent to determine the correct amount of compensation that is payable to the Applicant pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988.
The Respondent is to pay the Applicant’s reasonable costs as agreed or taxed.
...............................................
Mr S. Webb, Member
CATCHWORDS
COMPENSATION - injury to left knee - permanent impairment - "Guide to the Assessment of the Degree of Permanent Impairment" - interpretation of Table 9.5 – difficulty – pain
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 sections 4, 24, 27, 28, 67
"Guide to the Assessment of the Degree of Permanent Impairment"
CASELAW
Comcare v Fielder [2001] FCA 1810
Re Nuss and Comcare [2002] AATA 170
Re Watkins and Comcare [2002] AATA 613
Re Carman and Comcare [2002] AATA 946
Comcare v Moon [2003] FCA 569
Re Whelan and Department of Defence (1996) 47 ALD 383
Re Morley and Comcare (1996) 40 ALD 725
Re Brouwer and Australian Postal Corporation [2001] 570 at [103]
REASONS FOR DECISION
16 September 2003 Mr S. Webb, Member 1. Mr Martin Lidgett (“the Applicant”) has applied for review of a decision of a Military Compensation and Rehabilitation Service (“MCRS”) officer, dated 3 September 2001. The officer stated (T27, f57):
“Having taken into consideration all the available evidence I therefore consider that you suffer a 0% whole person impairment under Table 9.2 of the Comcare guide and 0% whole person impairment under Table 9.5 of the Comcare guide. In those circumstances you are not entitled to compensation under section 24 of the SRCA because of section 24(7) of the SRCA.
I therefore affirm the determination of 7 June 2001.”
2. The 7 June 2001 determination was made by a delegate of the Department of Veterans’ Affairs, for Comcare (“the Respondent”). The delegate rejected the Applicant’s claim for lump sum compensation for permanent impairment, stating (T25, f46):
“For you to be eligible for a lump sum payment for permanent impairment for a left knee condition.
…I need evidence that:
· the degree of whole person impairment is stabilised at 10% or more.
Concerning the last point above, the report of Dr A. Whittle dated 21 May 2001…shows that the impairment you suffer is less than 10%. The doctor has stated that impairment is in the order of 5% using the American Medical Association Guides, and there is no assessable impairment using Comcare Tables 9.2 and 9.5…
Therefore I have determined that no payment can be made under section 24 and 27 of the Act for your accepted condition.”
3. The matter was heard by the Tribunal on 20 August 2003. At the hearing the Applicant was represented by Mr P. Walker, Counsel, and the Respondent was represented by Mr C.. Clark, Counsel. The Applicant gave oral evidence, as did Dr G. Miller and Dr A. Whittle. The following materials were tendered in evidence and labelled:
exhibit description
T1 – T37Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.
A1Report by Dr G. Miller, dated 8 July 2003.
A2Report by Dr R. Rivett, dated 7 April 2003.
A3Report by Dr R. Rivett, dated 21 February 2002.
A4Applicant’s Statement, dated 16 December 2002.
R1Report by Dr A, Whittle, dated 11 August 2003.
R2Applicant’s Australian Defence Force Health Records
issues
4. It is accepted that the Applicant sustained a work-related injury to his left knee for which the Respondent is liable to pay compensation. The sole issue for determination in these proceedings is whether the Applicant is entitled to compensation for permanent impairment and non economic loss pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).
legislation
5. The relevant legislation is the Act, especially sections 4, 24, 27, 28 and 67, and the Guide to the Assessment of the Degree of Permanent Impairment (“the approved Guide”).
6. Section 4 of the Act relevantly provides:
4 Interpretation
(1) In this Act, unless the contrary intention appears:
…
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.
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
…
non-economic loss, in relation to an employee who has suffered an injury resulting in a permanent impairment, means loss or damage of a non-economic kind suffered by the employee (including pain and suffering, a loss of expectation of life or a loss of the amenities or enjoyment of life) as a result of that injury or impairment and of which the employee is aware.
…
permanent means likely to continue indefinitely.
…”
Section 24 of the Act relevantly states:
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.
(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.
…”
Section 27 deals with non economic loss and relevantly provides:
27 Compensation for non-economic loss
(1) 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.
…”
Section 28 deals with the approved Guide and relevantly provides:
28 Approved Guide
(1)Comcare may, from time to time, prepare a written document, to be called the "Guide to the Assessment of the Degree of Permanent Impairment", setting out:
(a)criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury shall be determined;
(b)criteria by reference to which the degree of non-economic loss suffered by an employee as a result of an injury or impairment shall be determined; and
(c)methods by which the degree of permanent impairment and the degree of non-economic loss, as determined under those criteria, shall be expressed as a percentage.
(2)Comcare may, from time to time, by instrument in writing, vary or revoke the approved Guide.
(3)A document prepared by Comcare under subsection (1), and an instrument under subsection (2), have no force or effect unless and until approved by the Minister.
(4)Where Comcare, a licensee or the Administrative Appeals Tribunal is required to assess or re-assess, or review the assessment or re-assessment of, the degree of permanent impairment of an employee resulting from an injury, or the degree of non-economic loss suffered by an employee, the provisions of the approved Guide are binding on Comcare, the licensed authority, the licensed corporation or the Administrative Appeals Tribunal, as the case may be, in the carrying out of that assessment, re-assessment or review, and the assessment, re-assessment or review shall be made under the relevant provisions of the approved Guide.
(5)The percentage of permanent impairment or non-economic loss suffered by an employee as a result of an injury ascertained under the methods referred to in paragraph (1)(c) may be 0%.
…”
7. Section 67 of the Act deals with the costs of proceedings before the Tribunal.
background
8. The following background information is drawn from the evidence and is not in dispute.
9. The Applicant was born on 23 August 1970 and enlisted in the Royal Australian Air Force (“RAAF”) on 21 September 1999.
10. On 11 April 2000, the Applicant fell and injured his left knee while playing soccer during a physical training exercise (T4).
11. On 20 November 2000, the Applicant lodged a Claim for Rehabilitation and Compensation form in respect of his left knee injury (T19).
12. On 24 November 2000, the Respondent accepted liability for the injury to the Applicant’s left knee (T21).
13. On 22 May 2001, the Applicant completed a Non-economic Loss questionnaire (T24).
14. On 7 June 2001, a delegate of the Respondent determined that the Applicant was not entitled to compensation under sections 24 and 27 of the Act (T25).
15. On 7 July 2001, the Applicant requested a review of the decision (T26).
16. On 3 September 2001, an authorised review officer affirmed the decision under review (T27).
17. On 7 May 2002, the Applicant requested an extension of time in which to apply for review of the decision (T35). On 24 May 2002, the Respondent agreed to the grant of an extension of time, which was subsequently granted on 31 May 2002 (T37).
evidence of the applicant
18. The Tribunal had before it two statements of the Applicant dated 7 July 2001 (T26) and 6 December 2002 (Exhibit A4).
19. The Applicant told the Tribunal he injured his leg while playing modified soccer in a physical training exercise at the RAAF base in Wagga Wagga on 11 April 2000. He explained that he was examined by a doctor at the base hospital and was told there was no injury, even though he could not walk out of the hospital. The Applicant described the difficulties he experienced in the weeks that passed before he was referred to a physiotherapist. He recalled the physiotherapist referred him to a surgeon who conducted an arthroscopy. The Applicant stated (T26, f48 and f49):
“During all this time my left leg wasted away to nothing and I developed a “nerve block” in that leg which prevented any attempted movement. After the operation I was in excruciating pain for about two weeks and no time off was granted. Rehabilitation was extremely slow as I had a total loss of movement and control of my left leg and it was some weeks before any movement was retrieved in that leg. A structured rehabilitation program was not arranged and the physio was of little benefit. I developed my own intensive swimming and walking routine as most other activities aggravate my knee. I did this daily, so every attempt had been made to improve my condition. Over the next months my knee improved only marginally.”
20. The Applicant’s evidence was that he put up with pain and other problems in order to improve his left knee. He told the Tribunal that before the injury he worked hard to maintain a very high level of physical fitness and was able to undertake all activities on service. His evidence was that six months after the operation on his left knee, his walking was limited to a limping hobble, he could not squat and kneeling was extremely painful. He said jogging “got it playing up” and he could only negotiate steps slowly and with difficulty. In relation to the latter, he stated that he had difficulty “pushing up with the knee”, which caused pain, and there was no strength in the knee. His evidence was that descending slopes and stairs were also difficult because his knee was unstable and “felt like it would give way”. He stated that he could hobble down gentle slopes but would not attempt steeper slopes. He gave evidence that his manual car had to be modified to include an automatic transmission because of difficulty operating the clutch with his left leg.
21. The Applicant told the Tribunal that his knee improved with strengthening exercises in the lead up to another operation performed by Dr Fine in October 2001. He said he worked to build the strength in his leg prior to the operation but was “far from happy with it”.. He said he could bend, kneel and jog but “hills and steps still played buggery with it” and he experienced a lot of pain. He told the Tribunal he attempted to walk as much and as far as he could, enduring the pain, and would undertake walks of up to one kilometre. He explained his knee was unstable and gave way on a number of occasions when going down a step or similar surface. In cross-examination, he accepted that on occasions before the operation, he had jogged over distances of more than two kilometres and had walked in the bush on tracks for up to six kilometres. He explained that these events were exceptional and were part of his efforts to build his strength before the operation. He said to undertake such activities meant he would have to bear a lot of pain during and after the activity.
22. His evidence was that he recovered fairly quickly from the operation in October 2001 and his left leg stabilised thereafter and “levelled out to a static condition”, but “it flares up occasionally”.. He told the Tribunal, over the past twelve months he experienced pain in his left knee every day, the intensity of the pain varying depending on his activity levels. The Applicant informed the Tribunal that his sporting activities are very limited, but he is able to “throw a ball around” and run at a slow speed for short periods. Playing sport, even for short periods, causes his knee to swell, he said, causing him to limp and experience pain for up to three days. He gave evidence that he can walk with reasonable comfort, but has been told by his wife and friends that he limps. He explained that sometimes he knows when he is limping, after strenuous activity for example, but is mostly unaware of it. The Applicant stated that cold temperatures exacerbate the symptoms in his left leg. He stated that he is not able to complete route marches, which are conducted at a brisk pace, without great difficulty. He said he experiences adverse consequences thereafter, and is exempt from pack marches. The Applicant gave evidence that he has been forced to pull out of route marches because of the pain in his knee and that the distance he can cope with depends on the state of his knee on the day. He explained that “there are some days when I only walk as far as I must around work because of pain and discomfort” but on other days he can walk for more than a kilometre.
23. The Applicant gave evidence that jogging is painful and if he jogs for any distance his knee “will be sore for days”.. He said turning on his knee is painful but tolerable. He acknowledged that he can run but noted he cannot run competitively or jog as he used to. His evidence was that uneven ground or sand “plays havoc” with his knee and is very painful to walk on. In his evidence, walking up a slope is not as painful as walking down but he is cautious negotiating slopes and steps. He said he favours his right leg and tends to hobble with his left, which is still unstable going down slopes and steps.
24. In cross examination, the Applicant agreed he completed a 15 kilometre route march in order to pass a Combat Fitness Assessment, explaining that his job was at stake and he consumed “half a box of Panadol” in order to complete the march. He stated that he completed the march without carrying a pack, and claimed he could not walk for three days afterwards. He agreed that he could complete occasional walks of up to four kilometres at work, but would only rarely attempt walks of one or two kilometres privately.
25. When questioned about medical treatment, the Applicant agreed that he had not sought or received any treatment for his knee condition since April 2002, noting that the only treatment recommended by doctors was physiotherapy, which he pursues according to his own program in the swimming pool.
medical evidence
dr a. whittle
26. The Tribunal had before it reports by Dr A. Whittle, Orthopaedic Surgeon, dated 21 May 2001 (T23) and 11 August 2003 (Exhibit R1).
27. Dr Whittle told the Tribunal that he examined the Applicant on 17 May 2001 and observed him walking over a distance of 75 metres. He stated that he did not obtain any objective evidence concerning the Applicant’s ability to walk distances, but applied the Lachman’s test, the Anterior Draw test and the Pivot Shift test. His evidence was that he observed the Applicant walking up and down ten to twelve steps and on a gently sloping wheel chair ramp at variable speeds. He reported (T23, f40 and f41):
“As part of my assessment [the applicant] was observed walking on a flat surface without difficulty. He was also able to negotiate stairs and slopes with no significant difficulty.
…
4. I would classify his current impairment as stable and permanent. Under Table 9.2, there is no assessable impairment. Under Table 9.5, there is no assessable impairment. I would suggest that these tables do no adequately cover the situation with regards to [the applicant’s] knee. Using the American Medical Association Guidelines, I would suggest that he has a whole person impairment in the order of 5% as a result of the partial disruption of the anterior cruciate ligament, in combination with the medial meniscal lesion.”
28. Dr Whittle did not explain what he meant by “no significant difficulty” in relation to the Applicant’s negotiation of a flight of stairs and a wheel chair ramp. He gave evidence that he accepted the Applicant’s claimed symptoms and was not surprised there was some instability in the knee. Nor was he surprised the Applicant had difficulty walking on sand and took conservative steps when negotiating grades and steps or stairs, especially when descending. Such symptoms, he observed, were consistent with the Applicant’s injury. Based on his examination of the Applicant in 2001, Dr Whittle said he would be surprised if the Applicant had difficulty completing a brisk 100 metre walk. He agreed, however, that he could not exclude intermittent symptomatology and deterioration in the left knee condition, since examining the Applicant in May 2001. He reported (ExhibitR1):
“You have asked me whether my opinion regarding this gentleman’s assessment of impairment is now different or in some way changed by the reports provided by Dr Rivett and Dr Miller. Whilst I would have some concern regarding the apparent discrepancy between my assessment and that of my colleagues, I do note the time lapse since my assessment and the fact that he has undergone further surgical treatment. As indicated above, I think further documentation of the treatment and opinion of Dr Stephen Fine would be of assistance. I would also have some concerns about the assessment of the stability of his knee, outlined in these two reports. There has been no mention of the pivot shift test in either report, and there does not appear to have been any attempt to separate between an anterior draw test and a Lachman’s test.
…
In short, I would not alter my assessment based on these reports provided, though I cannot confidently exclude a deterioration in knee function since my last assessment. I would also suggest that information be sought from Dr Stephen Fine, regarding his assessment of this gentleman’s knee, and his findings at surgery.”
dr. r. miller
29. The Tribunal had before it a report by Dr G. Miller, Specialist Surgeon, dated 8 July 2003 (Exhibit A1).
30. Dr Miller told the Tribunal that he had observed the Applicant walking in his rooms but did not observe hi, walking up and down stairs or slopes. He said he had no reason to suspect or discount the Applicant’s account of his difficulties in that regard as they were consistent with what he would expect in a person with the Applicant's left knee pathology. Dr Miller reported (Ex A1, p4):
“Using the Comcare Guide Table 9.5 I assess that he has a 20% whole person impairment. This is based on the fact that he can rise easily from a standing position and walk. He does have difficulty with grades and steps, and finds that his condition becomes symptomatic after walking 100 metres.”
31. Dr Miller’s evidence was that, with damage to the medial meniscus cartilage, he would expect an increase in degenerative change causing pain, intermittently, at first and becoming more constant later. He explained that Dr Fine’s report of chondroplasty at the second arthroscopic investigation was evidence of such change. In Dr Miller’s opinion, it is reasonable to expect the Applicant to experience difficulty walking on uneven surfaces, slopes and grades in consequence of the injury to the anterior cruciate ligament. He explained he had tested the amount of laxity in the Applicant’s knee, applying the Draw test, and noted a one centimetre increase in movement between the femur and the tibia. His evidence was that such laxity would have a clear and obvious effect, especially when walking up and down slopes, steps or when walking on uneven surfaces. He stated that such activities would cause the knee to sublex, while walking, as the quadricep would not work well in the flexed position. In Dr Miller’s opinion, the more the Applicant pushes himself to perform strenuous activities that stress his knee, the more he will hasten degeneration in his knee.
32. Dr Miller told the Tribunal he does not regularly use the Lachman’s test or the Pivot Shift test; the former being inaccurate and the latter causing discomfort, unless performed under anaesthetic, to avoid pain and guarding. He stated the Anterior Draw test is reliable and does not cause problems in the clinical setting. In Dr Miller’s view, it would not be possible to accurately assess the Applicant’s degree of impairment after the second operation in the absence of an examination. He stated that the second operation conducted by Dr Fine, Surgeon, evidenced increased degeneration since the first operation.
33. Dr Miller agreed, in cross examination, that he would be surprised if the Applicant could walk 15 kilometres, without discomfort or symptoms and would not expect that he could walk five kilometres without some difficulty. He noted, however, that the Applicant was stoical and highly motivated, having been very fit prior to the injury. He observed the Applicant as a person who appears to push himself hard even though strenuous activity, which may exacerbate the symptoms in his knee.
dr a. van der rijt
34. On 12 May 2000 Dr A. van der Rijt, Orthopaedic Surgeon, reported (T11):
“[the Applicant] has a marginal Lachman and pivot shift to EUA. His arthroscopy revealed he had torn the posterolateral bundle of his anterior cruciate ligament and there is attenuation of the anteromedial bundle. There was an associated peripheral tear of the posterior half of the medial meniscus. He has normal articular surfaces and the lateral compartment is normal.
I have repaired the meniscal lesion with suture arrows. I have excised the stump of the anterior cruciate which blocked the knee in extension.”
35. On 23 May 2000 Dr van der Rijt reported (T13):
“[The Applicant] has a moderate effusion, which I have aspirated today as this is interfering with his rehabilitation. He finds his knee is uncomfortable and he has a 10° loss of extension with flexion to 80°.”
dr s. fine
36. The Tribunal had before it the Applicant’s Australian Defence Force Health Records (Exhibit R2), in which Dr P. McKenzie, Medical Officer, reported that he assisted Dr S. Fine, to conduct an arthroscopic operation on the Applicant’s left knee on 28 August 2001. Dr McKenzie summarised the case as follows (Exhibit R2, p43):
“Routine admission for planned ACL reconstruction (L) KJ by Dr Fine under GA on 28/8/01. On EUA there was a 1+ Lachman and anterior drawer and a just detectable lateral pivot shift. There was a patch of GR II chondromalacia supero medially of the patella plus a median ridge split along with a thick type II medial plica.
There was an unstable posterior half tear medial meniscus, a partial tear of the ACL (with inferior fibres being intact and tense) and splits of the Lateral tibial plateau. The lateral meniscus and the other joint surfaces were intact. Chrondoplasty patella, E/O plica and partial medial menisectomy was carried out. It is hoped these measures will suffice.”
submissions, consideration of the issues and findings
37. The Tribunal carefully considered all the evidence, the submissions of the parties and the relevant case law and legislation.
38. The Tribunal finds the Applicant to be a person of truth whose reliability as a witness was not under challenge.
39. There is no dispute that the Applicant sustained an injury to his left knee under the Act on 11 April 2000. Nor is it in dispute that the injury to the Applicant’s left knee is the cause of impairment that is ongoing. When determining whether an impairment is permanent, the Tribunal must have regard to the matters set out at subsection 24(2) of the Act. On the evidence of Dr Whittle and Dr Miller, the Tribunal is satisfied that there is not likely to be any significant improvement in the Applicant’s left knee injury. The Tribunal is satisfied that the Applicant has undertaken all reasonable rehabilitative treatment following operations on his left knee in April and May 2000 and in August 2001. The Tribunal finds the Applicant’s impairment is permanent.
40. The degree of permanent impairment is to be assessed using the approved Guide. It is not in dispute that there is no assessable permanent impairment under Table 9.2 at Part A of the approved Guide, which deals with the range of joint movement in the lower extremities. In issue is the interpretation of terms used in Table 9.5, which relevantly states:
“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.
…”
41. The Applicant submitted that he can rise to standing and walk but has difficulty with grades, steps and distances, therefore warranting a whole person impairment assessment of 20 percent under Table 9.5. In issue for the Respondent was the interpretation of the word “difficulty”. In the Respondent’s submission, the Applicant’s ability to walk long distances and his coping mechanisms in relation to grades and steps do not constitute difficulty. Furthermore, the Respondent submitted that the approved Guide requires the application of an objective test or measure whereby the subjective experience of pain may properly be considered.
42. The Principles of Assessment in the preamble to the approved Guide make clear that:
“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.
…
Whilst ‘activities of daily living’ are used to assess impairment they should not be confused with ‘lifestyle effects’ which are used to assess non-economic loss.”
43. The issues agitated, in this case, have been considered by the Tribunal and courts on previous occasions. The parties drew to the Tribunal’s notice useful authorities.
44. In Comcare v Fielder [2001] FCA 1810, Drummond, Kiefel and Dowsett JJ discussed the meaning of the word “difficulty” in relation to the phrase “difficulty with digital dexterity”, that is used at Table 9.4 of the approved Guide. Their Honours observed at [22]:
“The word “difficulty”, like most ordinary English words, has no fixed meaning but is, as the Tribunal observes, a word capable of covering a broad spectrum of restriction and disability in the context of a phrase such as “difficulty with digital dexterity” in Table 9.4. According to the Macquarie Dictionary, 3rd ed, “difficulty” connotes a range of conditions from being “not easy”, to being “hard to do”, to “requiring much effort”. According to the Oxford English Dictionary, 2nd ed, it connotes notions of not being easy, of requiring effort or labour, of being troublesome or hard to do, perform or carry out. An injury that leaves a person in the position of requiring much effort to perform tasks calling for digital dexterity involves a markedly more serious impairment than does an injury which makes it not easy or troublesome for a person to perform such tasks.
Something more than minimal problems with digital dexterity is required. But if a person, as a result of his injury, finds it troublesome or not easy to do tasks requiring digital dexterity, that will, adopting the approach to interpretation required by [Whittaker v Comcare (1998) 86 FCR 532] at 544-545, justify a 10% impairment assessment under paragragh 1 of Table 9.4.”
45. Following the construction outlined in Fielder (supra) and adopting the most favourable interpretation to the Applicant, consistent with Whittaker v Comcare (1998) 86 FCR 532, the Applicant in this case will have “difficulty” if he finds it troublesome or not easy to negotiate grades and steps, or grades and steps and distances. It is not necessary for the limitation to be significant or substantial but it must be more than slight or minimal (see Re Nuss and Comcare [2002] AATA 170 at [60]; Re Watkins and Comcare [2002] AATA 613 at [90]; Re Carman and Comcare [2002] AATA 946 at [48]).
46. The Tribunal pauses to note that the phrases set out at paragraphs 1 and 2, of Table 9.5, both involve conjunctive elements that must be read together. The difficulty must pertain to each of the activities that are specified and no less.
47. The Applicant’s evidence was that the distance he could walk was limited by the pain he experienced in his knee; he could endure the pain and walk further but this would cause adverse symptoms that could last for a number of days thereafter. The significance of pain, as a factor relevant to impairment, as assessed under Table 9.5 was considered in Comcare v Moon [2003] FCA 569 in relation to which Mansfield J said at [45] and [46]:
“45. The contention of Comcare is that pain which does not prevent or restrict a physical activity at the time of the activity is irrelevant to an assessment of impairment under Table 9.5. That is, it must objectively been seen that the activity is ceased or restricted during its performance to amount to an impairment.
46. I do not accept that contention. In the first place, I do not consider Jenkinson J in [Comcare v Amorebieta (1996) 66 FCR 83] intended to say that pain experienced during an activity is not relevant to the assessment of level of impairment under s 24 of the Guide [sic – Act] or under the measure of ‘difficulty’ in Table 9.5. He recognised there may be a relevant ‘voluntary restriction of movement evoked by the onset of pain’ which could evidence or amount to an impairment. That may be by way of comparison with pain which does not in fact impair movement or activity, but which may nevertheless entitle a claimant to compensation under s 27 of the SRC Act.”
48. In the Respondent’s submission pain, alone, is insufficient for the purpose of assessing impairment, to the extent that an objective manifestation of pain or weakness is required. The Respondent relied on the decision in Re Watkins (supra) where it was stated at [92]:
“While pain and weakness may each be taken into account as a source of difficulty in performing an activity, that is not to say that the mere presence of pain or weakness, without more, means there is difficulty experienced. The Tribunal notes the reference in the relevant Principles of Assessment to objective criteria … and is satisfied that, before there can be a finding that there is difficulty in performing a task because of pain, weakness or some other factor, there must be some objective manifestation of that pain or weakness which reveals the difficulty. To find otherwise would be to equate pain or weakness with difficulty and to allocate impairment ratings for those matters which more properly fall for consideration as lifestyle effects for assessment under non-economic loss.”
49. In the Applicant’s case the Tribunal is satisfied that he ceases or avoids activities and adapts his mode of passage because of the pain and instability he feels in his left knee. These actions constitute objective manifestations of pain that impair movement and activity which is a relevant factor in the assessment of permanent impairment under Part A of the approved Guide consistent with Re Watkins (supra), Moon (supra) and Comcare v Amorebieta (1996) 66 FCR 83. This conclusion is not inconsistent with the opinions of Dr Whittle and Dr Miller, both of whom concluded the Applicant suffered a permanent impairment in consequence of his injury. In order to satisfy the “difficulty” test under Table 9.5, however, such voluntary restriction and objective manifestation of pain must relate to grades and steps or grades, steps and distances.
50. Considering the medical evidence, the Tribunal notes that Dr Whittle has not examined the Applicant since the operation on his knee in August 2001. Nonetheless, on 11 August 2003, Dr Whittle reported that he would not alter his May 2001 assessment of the Applicant, that is a 5 percent whole person impairment under the American Medical Association guidelines, but a 0 percent whole person impairment under Tables 9.2 and 9.5 of the approved Guide. However, Dr Whittle was not able to discount deterioration in the Applicant’s left knee, since 21 May 2001. He acknowledged that the arthroscopic surgery in August 2001 indicated there was some degeneration in the Applicant’s knee, which included a post-traumatic tear to the anterior cruciate ligament and the medial meniscus. Dr Whittle said he would be surprised if the Applicant could not complete a brisk 100 metre walk without difficulty but was not surprised that the Applicant has difficulty walking on sand, has instability in the left knee and takes conservative steps when descending stairs and slopes.
51. Dr Miller examined the Applicant on 23 June 2003, but did not observe the Applicant negotiating grades or steps, relying instead on other clinical tests and the Applicant’s own account of his difficulties. On examination, Dr Miller performed the Anterior Draw test and found instability in the Applicant’s left knee. His evidence was that such pathology was consistent with the Applicant’s claimed difficulties with grades and steps, especially when descending. Dr Miller was not surprised that the Applicant was experiencing intermittent symptoms; one day experiencing difficulty walking 100 metres, another walking longer distances without the same difficulty.
52. Despite deficiencies in the medical evidence, the Tribunal is satisfied the pathology of the Applicant’s left knee injury causes pain and instability in that joint when negotiating grades, steps and distances.
53. The Respondent contended that it could not be said that the Applicant has difficulty with walking distances because he was able to complete a 15 kilometre march and a 2.4 kilometre run during fitness assessments. That the Applicant did so is not disputed. His ability to complete such activities does not address the correct test to be applied. The specific test to be applied pertains to difficulty negotiating grades, steps and distances and not whether certain actions can be completed regardless of the circumstances. The Applicant’s evidence concerning the 15 kilometre march was that his job depended upon it and he was only able to complete it by consuming half a packet of Panadol and enduring excruciating pain, and having done so was unable to walk for three days thereafter. This evidence was not disturbed in cross-examination. In truth, therefore, it cannot be said that the Applicant did not have difficulty completing the fitness assessment march. One only has to consider the Applicant’s Defence Force Health records to discern the level of restriction on the Applicant’s activities. The Applicant is “run, dodge, jump” exempt, his annual fitness assessment is completed without carrying a pack and he is not permitted to run on uneven ground (Exhibit R2).
54. Considering the relevant Principles of Assessment in the preamble to the approved Guide, the effect of the Applicant’s impairment on his efficiency negotiating grades, steps and distances is to be compared with a normal healthy person of similar age (see Re Nuss (supra) at [61]). The comparison to be made in this case, therefore, is with a normal healthy 33 year old male person without the Applicant’s left knee condition.
55. Clearly, it is not possible to determine with accuracy the limits on activity such a person may experience. It is reasonable, however, to expect that a 33 year old male in normal circumstances would have no difficulty walking five or six kilometres at a normal pace. By comparison, the Applicant’s evidence was that he can walk five or six kilometres on a good day but experiences pain during and after such activity. He stated that on some days he cannot walk 100 metres without pain causing him to cease. A normal, healthy, 33 year old male would have no difficulty walking up and down steps, such as a flight of stairs or a ladder, or walking up and down grades, such as a slope or a ramp of reasonable gradient. Of course, variance in the gradient will also affect the degree of difficulty and it follows, for present purposes, that the gradient should be that which can be negotiated by a normal healthy 33 year old male without difficulty. The Applicant’s evidence was that in order to negotiate grades and steps he modifies his gait, taking short slow conservative steps, and favours his right leg because his left knee is weak, unstable and occasionally collapses. His evidence was that on some days he can negotiate grades and steps with less difficulty than other days when he curtails such activities because of pain. Indeed, Dr Whittle observed the Applicant negotiate a flight of stairs and a wheel chair ramp with “no significant difficulty” in May 2001. It is clear, nonetheless, that the Applicant experiences difficulties negotiating grades, steps and distances that a normal healthy 33 year old male without the Applicant’s injury would not be expected to experience.
56. In the case of Re Whelan and Department of Defence (1996) 47 ALD 383 the Tribunal found there was difficulty negotiating grades, steps and distances, largely because of pain, and compared pre and post injury restrictions on activities. Similar comparisons were entertained in Re Morley and Comcare (1996) 40 ALD 725 at 731 and Re Brouwer and Australian Postal Corporation [2001] 570 at [103]. The Applicant gave written and oral evidence to the Tribunal that before the injury he was extremely fit and was frequently involved in vigorous physical activities, including competitive sports, unrestricted training activities and recreational activities such as bush walking, and there is no reason to doubt it. His activities after the injury, however, were curtailed to the extent that on some days he cannot walk 100 metres, he can play touch football but only for a few minutes, jogging causes pain, he has difficulty walking on uneven surfaces and sand, he cannot squat or crouch without pain and is unable to negotiate steep grades or steps confidently or at a normal pace. It is clear that the Applicant’s impairment is such that he can no longer engage in activities he previously undertook without difficulty.
57. That the Applicant maintained a commitment to achieving a high level of fitness despite his impairment after the injury is clear. The Tribunal accepts that the physical culture amongst his peers on service, the fitness demands of his role as a craftsman working on Black Hawk helicopters and his evident interest in building his strength in order to participate in physical activities, are significant motivating factors in the Applicant’s program of physical activities since the injury. Factors such as these may drive a person such as the Applicant to persevere with activities that cause adverse symptoms and pain, possibly to his long term detriment, when in other circumstances he may not feel so compelled to persevere. Nevertheless, on the evidence, the Tribunal finds the Applicant’s post injury activities are significantly reduced by comparison with his pre injury activities. The Tribunal is satisfied that such reduction and restriction is not of natural cause and would not be found in a normal healthy 33 year old male.
conclusion
58. In the Applicant’s case the medical evidence concerning the objective testing of the Applicant’s difficulties, or otherwise, with grades, steps and distance is deficient. The Tribunal cannot rely on Dr Whittle’s testing during his examination of the Applicant in May 2001. It is clear that the Applicant’s left knee pathology and symptomatology has been affected by subsequent developments and surgery, in August 2001, and is not the same as it was in May 2001. The Respondent attacked Dr Miller’s report on the basis that he did not observe the Applicant negotiating grades and steps, relying instead on the Applicant’s account of his difficulties. While this is clearly deficient, on clinical examination, Dr Miller found the Applicant’s claims to be consistent with his left knee pathology and accepted them.
59. The Applicant is a reliable witness and the Tribunal accepts his evidence in relation to the curtailment of activities, specifically relating to grades, steps and distances, because of pain and instability in his left knee. The pain referred to does not relate to “lifestyle effects” that fall for consideration under section 27 of the Act and Part B of the approved Guide. In effect, the pain directly curtails and restricts the Applicant’s activities of daily living and is a factor relevant to the assessment of permanent impairment under Part A of the approved Guide.
60. The Tribunal prefers Dr Miller’s assessment of the degree of permanent impairment, in the circumstances, and is satisfied that the Applicant does experience difficulties with grades, steps and distances even though his is able, on occasion to complete strenuous activities, in cases of necessity, enduring pain and suffering adverse consequences thereafter. Considering Fielder (supra) the Tribunal is satisfied that the Applicant’s difficulty with grades, steps and distances is more than slight or minimal, being troublesome and not easy and hard.
61. The Tribunal finds the Applicant can rise to standing position and walk but has difficulties with grades, steps and distances. This being the case, the Tribunal finds the Applicant has a 20 percent whole person impairment under Table 9.5 of the approved Guide. It follows that the decision under review must be set aside and the matter must be remitted to the Respondent to determine the amount of compensation payable to the Applicant pursuant to sections 24 and 27 of the Act.
decision
62. The decision under review is set aside and in substitution therefor the Tribunal decides that the Applicant has a whole person impairment of 20 percent under Table 9.5 of the approved Guide.
63. The matter is remitted to the Respondent to determine the correct amount of compensation that is payable to the Applicant pursuant to sections 24 and 27 of the Act.
64. The Respondent is to pay the Applicants reasonable costs as agreed or taxed.
I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Webb, Member
Signed: A. Krilis
AssociateDate of Hearing 20 August 2003
Date of Decision 16 September 2003
Solicitor for the Applicant Mr Paul Hampsey
Counsel for the Applicant Mr Philip Walker
Solicitor for the Respondent Stuart Marris
Counsel for the Respondent Mr Charlie Clarke
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