MEROME SMITH and MILITARY REHABILITATION AND COMPENSATION COMMISSION
[2012] AATA 618
•14 September 2012
[2012] AATA 618
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/5224
Re
MEROME SMITH
APPLICANT
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
RESPONDENT
DECISION
Tribunal PROFESSOR RM CREYKE, SENIOR MEMBER
Date 14 September 2012 Place Canberra The decision under review in relation to Table 9.6 of the Comcare Guide to Permanent Impairment (2nd Ed.) is affirmed. The decision under review in relation to Table 9.5 of the Guide is set aside and remitted to the Military Rehabilitation and Compensation Commission under s42 of the Administrative Appeals Tribunal Act 1975 (Cth) for calculation in relation to the Combined Values Table.
............................[sgd].........................................
PROFESSOR RM CREYKE, SENIOR MEMBER
CATCHWORDS
COMPENSATION – Military Rehabilitation and Compensation – accepted injury in course of duty – definition of difficulty – assessment under table 9.5 – assessment under table 9.5 – correct method of calculation – normal healthy person – impairment – pain
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) ss 4, 24
CASES
Comcare v Amorebieta (1996) 66 FCR 83
Comcare v Fiedler (2001) 34 AAR 237
Fellowes and Military Rehabilitation and Compensation Commission (2009) 240 CLR 28
Re Bacic and Comcare [2008] AATA 465
Re Brouwer and Australian Postal Corporation [2001] AATA 570
Re Carter and Military Rehabilitation and Compensation Commission [2006] AATA 721
Re Holmes and Comcare [2001] AATA 290
Re Jones and Department of Defence [1998] (unreported, AAT No N97/1255, 8 October 1998)
Re Rush and Australian Postal Corporation [2008] AATA 185
Re Saxton and Military Rehabilitation and Compensation Commission [2005] AATA 1095
Re Watkins and Comcare (2002) 69 ALD 498Whittaker v Comcare (1998) 86 FCR 532.
SECONDARY MATERIALS
Comcare, Guide to the Assessment of the Degree of Permanent Impairment (edn 2.1, 2011).
REASONS FOR DECISION
PROFESSOR RM CREYKE, SENIOR MEMBER
Ms Merome Smith has sought review by the Tribunal of the decision dated 13 October 2011 not to award her compensation for permanent impairment for an accepted back condition.
Ms Smith also has an accepted condition relating to injury to her left knee, for which she has received compensation for permanent impairment under the Act.
The matter was heard in Canberra on 13 August 2012.
BACKGROUND
Ms Smith, who was born in 1969, joined the Royal Australian Navy in 1988 and is still serving full-time. Prior to her injuries Ms Smith had regularly participated in sport, including netball, volleyball, touch football, squash, and softball. She continued to play some contact sports except for a period in 2003, including squash until at least 2007. She commenced gym in 2005 and now, for exercise, only walks and does some yoga. In her teens she was involved in callisthenics, horse-riding and diving. Dr Brozozek, a musculo-skeletal physician, who had seen Ms Smith in 2002, described her as ‘hyper-flexible’.
Left knee
In 1992 Ms Smith injured her knees playing touch football while on duty. Her right knee has been stable since surgery in 1996. Her left knee has remained intermittently symptomatic. Subsequently she has had anterior cruciate ligament surgery on two occasions, and four arthroscopies. In May 2012 she underwent open surgery to the knee when a tibial wedge was inserted. The injury left her with an unstable knee, restricted range of movement, constant pain, and a limp in her left leg, and resulted in ‘some limitation in choice of occupation and recreational pursuits; no real effect on current job or earning capacity’.
A report dated 15 November 1994 from Dr Singh-Pandher, an Australian Government Health Service Medical Officer, to the Department of Defence, noted ‘pain and problem with prolonged sitting’ and ‘on crossing legs’, with ‘prolonged standing’ and with ‘walking distances’ and ‘more so on walking up slopes and also with steps’. The report noted Ms Smith ‘develops pain and starts to have a protective limp’. Dr Singh-Pandher assessed her ‘percentage level of whole person impairment resulting from the injury … in accordance with Table 9.5 = 20 [%]’. He also noted that Ms Smith ‘may develop age related degenerative changes over the next 10-15 years, but it is not possible to predict exact time span’.
In October 1998 Dr S Gillespie, Ms Smith’s treating orthopaedic surgeon, reported Ms Smith saying she experienced ‘a slipping sensation and an occasional feeling of catching in the left knee particularly on descending stairs’. An MRI on 16 January 2002 following a further injury to Ms Smith’s knee noted ‘ongoing medial pain in the left knee, including at rest’ and an ‘unstable knee’. Mr Peter McCombe, orthopaedic surgeon, conducted a further arthroscopy of her left knee in February 2002 and reported in May 2002, that Ms Smith continued to have an ‘unstable knee’. An MRI dated 9 November 2005 noted a probable partial tear of Ms Smith’s anterior cruciate ligament reconstruction but ‘probably at least 50% of fibres still intact’. On 5 May 2006, Dr Gillespie reported on a further reconstruction operation on Ms Smith’s left knee in an attempt to repair the partial tear.
An MRI on her left knee on 28 February 2008 noted significant loss of cartilage and irritation of the under-surface of the kneecap. A report by an orthopaedic surgeon, Mr Iain McLean, dated 6 March 2009, recorded progressive degenerative changes in her left knee. The report followed complaints of pain in the knee, with more pain, tending to make her limp, following marching or walking for a period.
A report by Dr Gillespie dated 21 January 2011, noted that her left knee was stable, but Ms Smith was experiencing increasing pain which he said ‘sounds mechanical in nature’, and was associated with weight-bearing activity. In his view, the pain was due to degenerative arthritic wear in the knee. Ms Smith underwent a further arthroscopy in that knee in May 2011 and had a tibial wedge inserted in May 2012 due to continuing problems with the left knee.
A medical board assessment on 23 September 1999, listed her only problem as some aching in the left knee if sitting for lengthy periods. By August 2006, Ms Smith was able to meet defence service fitness requirements for push-ups, sit-ups, and the 5km walk. By April 2007, Ms Smith had her fitness upgraded to MEC level 2 (level 1 being the most fit), although her fitness level was downgraded to MEC level 3 in 2009 and 2010. In her most recent service-related Medical Employment Classification dated 1 November 2011, she was graded fit for sea-going duty (MEC level 2), but with some restrictions relating to weights, physical training and need for access to specialist care.
Lower back
Ms Smith also injured her back when she slipped on the deck and experienced other minor traumas while at sea on HMAS Success in 1999. The pain settled. However, in May 2001 the pain from the fall recurred when she sat in a chair and ‘felt something pop in her back’, leading to hospitalisation for four days and ongoing low back pain. Since then she has experienced intermittent back pain symptoms resulting in increased lower lumbar back pain referred into her left buttock and left leg. Symptoms were worse with standing, bending, sitting or twisting.
History of permanent impairment claim for back condition
Liability for Ms Smith’s back injury was accepted on 22 July 2004 following an own motion reconsideration by the Commission. However, on 6 April 2005, the Commission denied liability to pay compensation for permanent impairment for the injury. On 28 April 2010, liability was extended for ‘bilateral L5 pars defects with a grade 2 spondylolisthesis’ and Ms Smith submitted a further claim for permanent impairment.
In a determination dated 30 May 2011, Comcare found that Ms Smith was suffering 10 per cent whole person impairment under Table 9.6 Spine in Part 2 of the Guide to the Assessment of the Degree of Permanent Impairment (edition 2.0, 2005) (Guide). The Commission accepted non-economic loss scores for her injury as follows:
Pain 2
Suffering 2
Mobility 2
Social Relationships 1
Recreation & Leisure Activities 3
Other Loss 0
Loss of Expectation of Life 0
An offer of compensation for permanent impairment of $30,055.72 under sections 24 and 27 of the Act was accepted by Ms Smith on 29 June 2011.
On 19 July 2011 the solicitor for Ms Smith sought reconsideration of the decision accepted by Ms Smith on the ground that there had been an incorrect assessment of Ms Smith’s impairment under Table 9.6, and Ms Smith should also have been assessed as having a 10 per cent or greater whole person impairment under Table 9.5 Limb Function – Lower Limb in Part 2 of the Guide. Ms Smith did not offer further medical evidence in support of her claim and the reviewable decision was affirmed on 13 October 2011. It is that decision which is being reviewed by the Tribunal.
Ms Smith’s evidence
Ms Smith, in evidence, confirmed that she has difficulties with managing grades and steps. She did not consider that these had worsened between April 2011, when she was examined by Dr Ahmad, and when she was examined by Dr Le Leu in April 2012. She said she had no limitations to standing or walking and could walk for between 5km to 8km, but over 5km she began to experience pain due to aggravation of her left knee and this caused her to limp and increased her lower back pain.
Ms Smith underwent fusion surgery for the back condition on 17 October 2009. Prior to the surgery she said she had experienced an increase in her back symptoms, including a reduction in left leg power, and numbness affecting the left buttock, left leg and down to her left big and second toes. These symptoms left her feeling she had no control over the leg. As a result of the surgery, Ms Smith reported reduced levels of pain, and a reduction in lower limb numbness relating to her toes and her left foot.
Ms Smith acknowledged that before the back surgery in 2009 her left knee condition meant she had some difficulty with ramps and steps. Since the surgery, however, her ability to go up ramps is worse as bending forward to go up an incline causes her increased pain. There is no problem coming down since she is upright. So it is only with stairs or a ramp with an incline causing her to bend forward that she has this problem. She uses handrails because she feels unstable for stairs and ramps, and walks more slowly and carefully. Where possible she avoids situations involving grades and steps. If there are no handrails or the terrain is rough she says she now also walks slowly and carefully.
Ms Smith agreed that her left leg weakness was ‘in part due to [her] back injury and to the numbness [in her leg and toes] and in part to [her] knee instability’. She said the effect of pain in her back was that if she has had to negotiate stairs and gradients, she has pain at the time, but afterwards when she gets home ‘it’s mostly on the couch or into bed if it’s that bad’. For the same reason she has home help because to mop or vacuum requires her to bend over and the resulting pain would lead to her needing time in bed or on a couch to recover.
Medical assessment reports
The Tribunal notes that it had available a number of reports from medical specialists for dates between 2003 and 2006. They had not been prepared for the purposes of this application. The Tribunal has treated these reports with caution given that Ms Smith’s symptoms from her conditions fluctuated considerably in that period, and none take account of the effects of her most recent surgery on both her back and her left knee. In addition, there is considerable disparity between the assessments of her levels of impairment or incapacity. The fluctuations in Ms Smith’s levels of impairment is evident from Ms Smith giving up active sport for a period in 2003, but later resuming quite demanding physical activities, including squash, until she ceased playing in 2007. Since 2007, for exercise she is confined to walking and some forms of yoga. Accordingly, limited use will be made of these reports.
Dr Ahmad
Dr Radin Ahmad, Senior Medical Adviser, Medibank Health Solutions, provided a report dated 27 April 2011. His clinical findings relating to Ms Smith’s range of movement showed:
Back Movement
Range of Movement
Normal
Lumbar flexion
50˚ (increase of 4 cm in a 15cm length)
60˚ (increase of 5cm in a 15cm length)
Extension
25˚
30˚
Left lateral flexion
25˚
30˚
Right lateral flexion
25˚
30˚
Totals
125˚
150˚
Dr Ahmad conducted a field test within and outside his office. The test involved Ms Smith walking about 500m.
Dr Ahmad concluded that her symptoms had become stable in about October 2010. For permanent impairment purposes he assessed her under Table 9.6 and Table 9.5 of the Guide. Under Table 9.6 he found she had lost less than half normal range of movement which attracted a score of 10 per cent whole person impairment. Under Table 9.5 since he found she could rise to a standing position, walk, and demonstrated no difficulties with grades and steps, he considered this represented 0 per cent whole person impairment.
At the hearing, he said the field test involved Ms Smith negotiating a ramp of about 15-20m long, and a stairwell of about 20 stairs. In his view ‘difficulty’ would be demonstrated by walking slower than a person of a similar age group, having to stop because of the condition, or difficulty in actually walking the typical distance used for the field test. Experiencing pain was not relevant since it would not necessarily impede the ability to undertake the field test without difficulty. Equally, he said that holding a banister on the stairs would not necessarily indicate pain since it depended on why it was used. If it was used to pull a person up, it would indicate a difficulty. Dr Ahmad could not recall whether Ms Smith used the banister, had described significant pain, or if there were any other objective signs of difficulty due to the back. He said he believed he would have noted these factors had they been apparent at the time of his field test. He acknowledged that the test, including conversation, typically took only about ten minutes.
In relation to Table 9.6 he said he would have repeated the range of motion tests three times and taken the average as was his practice. In his view what is ‘normal’ for the range of motion assessment purposes is based on a table for assessments adopted by a national trainer. He understood it was an average or normal range of movement. It was not ethnically or racially based but related to populations at large. In his view it applied to adults, that is, those 18 years or above. He acknowledged that he and Dr Le Leu had adopted different figures for ‘normal’ for flexion (60˚ v 90˚ respectively). In his view different medical practitioners in different speciality areas adopt different figures, but could not explain why this should be the case as between himself and Dr Le Leu since both had been trained as occupational physicians. He said the scale he relied on had been in use over many years and was adopted for consistency. He said the table was used ‘for preference’ but that other doctors did use different tables.
In coming to his conclusion he added the vertical columns in the table, not including straight leg raises. Yet he also conceded that if the percentage figure was taken horizontally for each of the results instead, Ms Smith’s loss of function would have been at least half and possibly more than half, and she could have qualified for assessment at the 15 per cent level. However, as he said, ‘it depends on the data set you use as to what is defined as normal’.
Dr Ahmad did not resile from his assessment and could only explain the differences in his findings as compared with Dr Le Leu’s as being due to his examination being twelve months earlier, and the increasing problems Ms Smith was experiencing with her left knee in that period. He acknowledged that when comparing current figures to those figures for Ms Smith’s flexion provided by Dr Brzozek, it appeared that Ms Smith had suffered a significant loss of flexion. However, as he said, since pre-injury figures are not available for everyone, doctors take the ‘normal’ range. He noted, however, in relation to the effect of her back injury, that if someone continued to play squash between 2004 and 2007, they would be unlikely to have ‘difficulty’ as defined in Table 9.5.
Dr Le Leu
Dr Leon Le Leu, occupational physician, provided a report dated 27 April 2012. He said since her back surgery on 2 October 2009 Ms Smith can now feel her left leg but still gets pins and needles and numbness in the left big and second toes and some sporadic numbness in the left leg. These symptoms have lessened since the surgery. She still has constant pain in the lower back, and pain in both hips and mid-buttocks. He recorded Ms Smith as saying that in 2007 the Department ceased paying for her remedial massage and that her pain worsened thereafter.
Ms Smith told him that she has not cycled for a long time, can drive her car which has been chosen because it minimises any back discomfort, but no longer runs; she shops but if she walks for ‘too long’ her left knee causes her to start bending forward which throws her back out and her left knee swells up; she can sit for no longer than 40-50 minutes and stand for about the same period; she prefers not to walk up slopes/hills/ramp since if she has to bend over, it causes back discomfort; and she cannot squat or kneel because of the left knee. She said she takes stairs and ramps ‘carefully’ and this slows her down and makes her more cautious. As she said it is the pain at the end of the activity that is the problem. However, she also said her back was still sore doing the activity. As her left leg is weaker than the right, she often hangs onto the railing as she is scared of falling over and tripping. She can walk 5km-8km on flat ground but has more difficulty with rough terrain. She has someone who does the vacuuming, mopping and dusting for her for two hours a week and has gardening assistance. Dr Le Leu noted that when he first observed Ms Smith walking into his consulting room and on her way to her car, she ‘continued to walk …with a widened base’. At the hearing he said she also had a wide-based gait on negotiating the stairs and as he said ‘the reason why one adopts the wide based gait is that you feel unstable’. Weight bearing was less stable on the left side. When her knee gets aggravated, she starts to limp and that in turn aggravates the pain in her lower back.
He noted a 4cm wasting of the right thigh compared with the left which he was unable to explain. The calves were of equal circumference. Her left knee would only flex to 45˚; the right to 110˚. She was able to walk up stairs, but had to hold onto the banister for stability. She had more facility descending the stairs. She was unstable ascending a ramp, but more stable descending. She walked with a wide-based gait to her car, the walk being about 150m. He said she can walk between 5km to 8km on flat ground but has difficulty with rough ground. Hence it could not be said that she has difficulty with distances. He assessed her under Table 9.5 for lower limb function at 10 per cent, that is, she ‘can rise to standing position and walk but has difficulty with grades, steps’.
He recorded her range of movement for her spine under Table 9.6 as follows:
Movement
Observed range
Normal
Flexion
60˚
90˚
Extension
10˚
30˚
Right lateral flexion
15˚
30˚
Left lateral flexion
15˚
30˚
Totals
100˚
180˚
These findings led to her meeting the description ‘Loss of less than half normal range of movement’, which gave an impairment assessment of 10 per cent.
CONSIDERATION
The Act provides for lump sum compensation for an employee who is accepted to have an injury which leads to permanent impairment.[1] Section 24(5) of the Act requires that the ‘degree of permanent impairment of the employee resulting from an injury’ be made using ‘the provisions of the approved Guide’. In this instance the provisions of the Guide are located in Part 2 since Ms Smith is a serving member of the forces, the initial claim for Ms Smith’s back injury was lodged after 28 February 2006 and relates to an injury during service.[2]
[1] Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) s 24.
[2] Comcare, Guide to the Assessment of the Degree of Permanent Impairment, (edition 2.1) (the Guide), iv.
‘Impairment’ is defined in the Act to mean: ‘ … the loss, the loss of the use, or the damage or malfunction, of any part of the body or of the bodily system or function or part of such system or function’.[3] That definition is repeated in Part 2 of the Guide.[4]An impairment is permanent if it is ‘likely to continue indefinitely’.[5] It was accepted, and the Tribunal so finds, that the injury to her back is permanent.
[3] Act s 4(1)
[4] Guide Part 2, 176.
[5] Act s 4(1).
Ms Smith has two accepted injuries: to her left knee; and to her lower back. The issue in this matter relates only to the second, namely, the correct assessment of the degree of permanent impairment for her back condition. Her accepted injury to her left knee will also be discussed since her back condition and her knee condition both impair her lower limb function, namely, locomotion.
Ms Smith challenged the decision to award her compensation for permanent impairment under Table 9.6 in Part 2 of the Guide on the ground that the finding under Table 9.6, the range of motion table on which the offer of compensation was based, did not fully reflect her level of impairment. She also claims that in order fully to compensate Ms Smith for her level of impairment, an assessment should also be made under Table 9.5, the limb function table reflecting functional loss relating to the lower limb.
Table 9.6
The 10 per cent level of impairment under Table 9.6 is described in column 1 as ‘Loss of half normal range of movement’, the relevant secondary criteria in column 2 being: ‘Loss of less than half normal range of movement'. Both Dr Ahmad and Dr Le Leu, the medical specialists who had assessed Ms Smith for the purposes of this claim, found that her back condition attracted a 10 per cent assessment under Table 9.6.
What is ‘normal’ in terms of range of movement was an issue. Part 2 does not contain any tables indicating what is ‘normal’. It has been left to medical experts who assess levels of impairment to set a figure for what is ‘normal’ for an assessment of loss of range of movement.
Dr Ahmad said that the figure for ‘normal’ in Table 9.6 which he used had been adopted nationally by occupational health units in different states and was the standard used by a national trainer for the assessment process. It was ‘a general range of motion for normal, average, populations’ and that there was ‘no racial or ethnic basis to it’. However, he also acknowledged that ‘different doctors in different fields have adopted different tables for a reference for normal range’.
Dr Le Leu said he was using ‘figures provided by the AMA Guides, and also from other references…. [I]t’s just an average figure derived from usually a Caucasian population’. The figures he used were figures from an MLCOA publication which are similar to the figures in the American Medical Association Guides to the Evaluation of Permanent Impairment (5th edn, 2000) (AMA5) and to the Comcare Guide.
The Tribunal notes there was a disparity in the figure chosen by some of the medical experts for the ‘normal’ figure for flexion in Table 9.6. Dr Le Leu and Dr Derrick Billett, consultant orthopaedic surgeon, adopted 90˚ as the ‘normal’ figure; Dr Ahmad used 60˚. All are occupational physicians. Dr Billett had provided two earlier reports for this matter dated respectively 1 March 2005 and 12 August 2005. Dr Ahmad could not explain why he and Dr Le Leu should have a different figure for normal flexion. The difference of approach cannot be solved on the evidence provided. The only explanation may be that Dr Ahmad’s figures were based on a health industry table, not figures used individually by consultant occupational physicians. Nor has the Tribunal been able to find guidance in the cases on the meaning of ‘normal’ in Table 9.6. The difference is capable of affecting the percentage impairment to which a person is entitled. It would be useful to have policy guidance on this issue. In this instance, since using either of the ‘normal’ figures adopted by the medical experts in this matter does not change the outcome, the issue was not critical.
A second issue was the method for reaching a sum of the individual motions included in assessments of impairment for Table 9.6. In this instance, if the methodology of adding all the range of motion figures for Ms Smith and comparing them with the summed figure for ‘normal’ for the same actions was adopted, the assessments of both medical specialists would still be less than half whichever 'normal' figure was used for flexion.
Counsel for Ms Smith, however, raised an alternative methodology for the calculation under Table 9.6. He indicated that as there was no instruction in the Guide as to methodology, it would be logical to do an assessment for percentage loss of each type of motion and then sum and compare the results, rather than sum all the vertical figures and then compare the resulting totals. He demonstrated that in this instance, adopting that approach, Ms Smith’s results would be half, not less than half. Neither medical expert could explain, in oral evidence, why that approach would not be acceptable.
The Tribunal has rejected his approach in this instance. The more favourable outcome was dependent on acceptance of the figures for Dr Le Leu only. The Tribunal has not made a decision whether to accept his results rather than those provided by Dr Ahmad. It has not needed to do so since both experts, using the traditional approach, had reached the same result for Ms Smith’s range of motion under Table 9.6. This finding also takes into account that the method suggested by counsel for Ms Smith is not the accepted methodology and needs further exploration before being accepted. As Dr Ahmad said, the traditional methodology is the methodology typically used and there is some indication in the AMA Guidelines supporting this approach.
A third argument presented by counsel for Ms Smith was that since actual figures were available for Ms Smith’s pre-injury range of motion, use of these figures rather than the ‘normal’ figures ‘would be a more accurate way of assessing' her loss of range of motion, particularly as she was a relatively young, fit member of the forces prior to her accepted injuries. Both doctors agreed that in theory this was logical. Dr Le Leu said in evidence he had used such figures in his assessments on one or two occasions some time ago but concluded ‘in most cases it’s most efficient to use the … normal ranges of movement’. Dr Ahmad said ‘in an ideal world [if] everyone had data on every joint, range of movement for every year of their life, it would be a better method but it’s not a practicable method and it’s not feasible and there’s no precedent as far as I know of that being present data in any population’.
The Tribunal accepts the impracticability of an approach based on actual figures, despite the apparent unfairness that this produces in those few cases in which such figures are available. An additional reason for not adopting this approach is that it would generally not be possible to check whether the figures obtained pre-injury, if made some time prior to the date at which the permanent impairment assessment was being undertaken, could be compared with those in use of the time of the later assessment. For example, the figures for ‘normal’ may have changed, or an updated Guide may be in force. In addition, subsequent treatment for the condition may have significantly altered the person’s range of motion. Another reason for caution is that differences between results based on the notional ‘normal’ measures, as compared with the individual results for someone with above average flexibility, can be reflected in the non-economic loss tables, rather than the range of motion tables.
The Tribunal finding is reinforced by the principle underlying the impairment tables that the assessment is to be made against a ‘normal healthy person’. As the Principles of Assessment state for Part 2 of the Guide, ‘Impairment is measured against is effect on personal efficiency in the “activities of daily living” in comparison with a normal healthy person’.[6] In Fellowes and Military Rehabilitation and Compensation Commission (Fellowes),[7] responding to an argument that an assessment of the degree of permanent impairment should be made ‘by reference to the pre-existing capacities of the particular applicant for compensation’,[8] the High Court said that ‘[o]n the contrary, the effect to be assessed is by reference to the functional capacities of a normal healthy person’.[9] The comment was made in relation to an application under Table 9.5, but the response is equally applicable to the general underlying principles of assessment which rely on a 'normal' standard. Accordingly the Tribunal affirms the assessment in the reviewable decision under review of the level of impairment of 10 per cent under Table 9.6.
[6] Guide Part 2, 176.
[7] Fellowes and Military Rehabilitation and Compensation Commission (2009) 240 CLR 28.
[8] Id at [21].
[9] Id at [24]. See also Re Hughes-Brown and Comcare [1998] AATA 972 at [55].
Table 9.5
It is accepted that one injury may give rise to more than one impairment.[10] It is claimed that in this matter Ms Smith’s injury to her back has led to two different impairments, namely, a loss of range of motion in her spine (Table 9.6), as well as a diminution of her capacity to manage ‘grades and steps’ (Table 9.5). Accordingly it was argued by Ms Smith she should be assessed under both Tables and the results combined to give a more accurate assessment of her impairments.
[10] Fellowes and Military Rehabilitation and Compensation Commission (2009) 240 CLR28 at [19].
The approach suggested is in line with the guidance notes in the introduction to Table 9.6 which state that ‘Lesions of the spine are often accompanied by neurological consequences. These should be assessed using Table 9.4 or 9.5 and the results combined using the Combined Values Table’.[11] That is, where there are neurological consequences from a spinal condition assessed under Table 9.6, then an assessment may also be made based on an assessment under a functional table such as Table 9.5 and the whole person impairment then estimated using the Combined Values Table.
[11] Guide Part 2, 206.
Dr Griffith’s opinion supports this approach. In his report dated 18 July 2006 he had noted that spondylolisthesis had a ‘propensity to cause symptoms without restricting motion of the spine’. Ms Smith has a grade 1 spondylolisthesis of the thoracolumbar region of the spine. Equally, referring to the possible impairments due to injury to a joint in the lower limb, the Federal Court noted in Whittaker v Comcare[12] that ‘there may be no loss of movement, but there can be some loss of function of a joint: the terms are not interchangeable. … Movement is but one part of function. Weight bearing is another, at least so far as lower limb joints are concerned’.[13]
[12] Whittaker v Comcare (1998) 86 FCR 532.
[13] Id at 540.
These comments, in conjunction with the Note to Table 9.6 referred to earlier, suggest that a result under Table 9.6 may not adequately estimate the level of impairment of a person. An assessment may be needed under another table to supplement the relevant range of motion table. The Tribunal, however, notes the warning in the Principles of Assessment in Part 2 of the Guide that the ‘possibility of double assessment for a single loss of function must be guarded against’.
The medical evidence supports there being neurological effects of the injury to Ms Smith’s spine. The MRI on 3 July 2002 identified ‘possible L5 entrapment’, a result replicated in an MRI on 12 June 2009. Dr James Rowe, a specialist occupational physician, advised in a report dated 5 February 2004 that she suffered from ‘intermittent low back pain’ that radiates to her legs. In December 2004 Dr Bryan Ashman, orthopaedic surgeon, identified ‘Possible entrapment of both L5 nerve roots’ leading to ‘constant shooting pain into her left leg … more troubling in the last 6 months’ and flare-ups once or twice a year requiring immobilisation.
Dr Griffith noted in his report of 14 June 2006 pain ‘in the left lower lumbar region, particularly left sided, with radiation to the left buttock, which is aggravated … by protracted periods of standing, sitting, bending and lifting’. Dr Bittar, neurosurgeon and spinal surgeon, on 30 July 2009 reported left leg numbness with episodic weakness, which commenced 3-4 months earlier, left buttock pain, and constant lower back pain. Dr Ahmad noted a history of sciatica and numbness affecting the left leg with associated weakness. Dr Le Leu reported Ms Smith saying ‘she can feel the left leg but she gets pins and needles and numbness in the left big and second toes and some sporadic numbness in the left leg’.
The medical and radiographic evidence, which was not challenged,[14] was that prior to her back operation in 2009, Ms Smith had moved to a desk job and, with the cessation of the chiropractic and massage treatment for her back in 2007, she increasingly experienced numbness and pins and needles in her left buttock, left leg and her big and second toes in the left foot, to the point where she lost sensation and could not feel or control that leg. Since the surgery in 2009 her symptoms have improved but she still has pins and needles and numbness in her left leg if she sits or stands for ‘too long’. As a consequence, Ms Smith said she was again having massage and chiropractic treatment, about every 6 weeks, to alleviate the discomfort. There was also evidence that Ms Smith has flare-ups due to her back condition a couple of times a year, and Dr Ahmad’s report on 18 April 2011 for non-economic loss noted she had taken approximately 10 days’ leave in the past 12 months for this reason.
[14] Dr Geoffrey Rosenfeld (MRI, 3.7.2002; Dr Derek Billett; , 22.2.2005; Dr Graeme Griffith, 14.6.2008; Dr Le Leu, 27.4.2012.
The Tribunal has accepted that the evidence indicates, despite the partially successful fusion surgery to her back in 2009, that Ms Smith continues to experience ‘neurological consequences’ due to her back condition and that these affect her left buttock, and leg, leading to weakness and increasing her feelings of instability when walking. There was corroborative evidence in the report of Dr Le Leu that she could not sit or stand for more than 40-50 minutes, and in Dr Ahmad’s responses to the Non-economic Loss Questionnaire, which stated Ms Smith ‘requires specialised seating for work and regular postural breaks’. The Tribunal noted that Ms Smith stood up after a period while she was giving evidence. As the Tribunal found her to be an honest witness, a finding supported by both medical witnesses for this matter, it has accepted that this change of posture was not contrived for the purpose of the hearing. Accordingly the Tribunal has accepted that it is legitimate for it to assess Ms Smith under Table 9.5.
The relevant description of level of impairment in Table 9.5 was the 10 per cent criteria, namely, ‘Can rise to standing position and walk BUT has difficulty with grades and steps’. None of the words ‘grades’, 'steps' and 'distances' are defined. In Re Bacic and Comcare[15] the Tribunal found that '"grades" indicates an inclined pathway, road, footpath or ramp with a flat surface', that "steps" ... means a step or series of steps or stairs', and that '"distances" means the distance that can be traversed by a normal healthy person of the same gender and age as the applicant' on 'flat or relatively flat surfaces'.[16] There was no discussion in Re Bacic of the gradient of the ramp or the rise of the stairs. Both medical experts who conducted field tests indicated that the ramps and stairs traversed were of standard height and gradient to those used generally in shopping centres and public places in Australia. The Tribunal finds that testing is expected to be conducted using a typical gradient of ramps, and of stairs with a standard rise. Dr Le Leu said that the ramp he used was a standard gradient of between 10 to 15 degrees.
[15] Re Bacic and Comcare [2008] AATA 465.
[16] Id at [25], [26] and [27].
The word ‘difficulty’ in Table 9.5, is also not defined. Guidance has been provided in the cases which have found that ‘difficulty’ means ‘troublesome’ or ‘not easy’,[17] but not ‘very significant or substantial’.[18] The difficulty must be more than ’slight or minimal’[19] and must be related to the relevant activity.[20]
[17] Re Bacic and Comcare [2008] AATA 465 at [24].
[18] Re Holmes and Comcare [2001] AATA 290; Re Bacic and Comcare [2008] AATA 465 at [24].
[19] Ibid. See also Comcare v Fiedler (2001) 34 AAR 237 at [90]; Re Carter and Military Rehabilitation and Compensation Commission [2006] AATA 721 at [26] – [30].
[20] Re Rush and Australian Postal Corporation [2008] AATA 185 at [52].
Ms Smith gave evidence that she tries to avoid using ramps and steps, even of the standard rise or gradient, or walking for too long, because this can cause her to bend forward which throws her back out and in turn her left knee swells up and also increases the pain in her lower back. That raises the issue of whether avoidance of an activity is a 'difficulty'.
Jenkinson J in Comcare v Amorebieta commented in the context of Table 9.6 that ‘...the damage or malfunction, of a bodily system or function or part thereof resulting from injury does not in my opinion comprehend voluntary abstention from use, even where the abstention is calculated, and likely, to benefit the bodily system or function'.[21] The comment was sufficiently broad to encompass voluntary abstention in circumstances other than those being considered in Table 9.6. However, the Tribunal also notes that the difficulty must relate to the criteria in the assessment for testing either range of motion or functional ability.
[21] Comcare v Amorebieta (1996) 66 FCR 83 at [13].
This reasoning suggests that voluntary abstention from the functional activity of ascending ramps or stairs in order to avoid pain and for the benefit of a person’s spinal system would not be a 'difficulty'.[22] If Ms Smith’s impairment meant she always avoided using ramps and steps that would mean she could not claim she has difficulty with these activities. That finding is supported by the plain meaning of ‘Can rise to standing position and walk BUT has difficulty with grades and steps’ which indicates that it is the carrying out of these actions which is being covered, not abstention from doing them. Nonetheless, the Tribunal also notes that Ms Smith’s evidence was that she only avoided ramps and stairs ‘where possible’ and she would not always be in a position to take alternative means of access. In addition, she did not avoid or abstain from the testing using grades and steps when being tested for the purposes of this hearing. In these circumstances, if she has an observable difficulty in undertaking the activity, this could be a ‘difficulty’ and her preference not to use ramps and steps is no bar to her establishing difficulty under Table 9.5.
[22] Comcare v Amorebieta (1996) 66 FCR 83 at [13].
Ms Smith’s evidence was that when she uses ramps and steps she does have difficulty, partly due to her knee instability, and partly due to the back condition leading to numbness in her buttock, left leg and foot, and the weakness in her left leg. She said she does not want to fall over or injure herself as she does not want to have to repeat the back surgery she had in 2009. This conclusion was supported by the medical evidence and is accepted by the Tribunal as correct.
Dr Ahmad had not observed any difficulty for Ms Smith in negotiating ramps and stairs. He said Ms Smith ‘was able to walk with a normal gait downwards and up a flight of stairs and negotiate grades’. She was not walking more slowly than normal, or with any hesitation, nor did she have to stop the activity. In his view she had managed this test 'without any observable functional impairment'. However, Dr Ahmad could not recall whether Ms Smith relied on the banister of the stairs for stability, nor whether she described significant pain, or had a wide-based gait, although he said that if they had been present he would have noticed these factors.
By contrast, Dr Le Leu noted several manifestations of ‘difficulty’, namely, holding on to the banister of the stairs for stability, and walking with a widened gait which he observed both on the ramps and stairs, and when walking from and to her car. He also said in evidence that even if her knees were perfect, as she had developed a significant back injury, ‘she could well feel unstable’ on the stairs. He also agreed that both her knee and her back were contributing to her instability.
Before making a finding on this issue, the Tribunal also needs to consider the impact of pain on Ms Smith’s functioning. That is because Ms Smith’s experience of pain in managing grades and steps is integral to her ability to undertake these activities. There is, however, an issue of whether the experience of pain due to the activity amounts to a 'difficulty'. The cases have established that pain ‘may be taken into account as a source of difficulty in performing an activity… [but] that is not to say that the mere presence of pain, without more, means that difficulty is experienced’.[23] There must be ‘some objective manifestation of the pain … which reveals the difficulty. To find otherwise would be to equate pain … with difficulty and to allocate impairment ratings for those matters which more properly fall for consideration as lifestyle effects of assessment under non-economic loss’.[24] Hence, cases where the pain resulted in a ‘paddling gait’, need for rest during a walk, a ‘splayed out’ walk, and swelling in the leg, were accepted as objective signs of pain and amounted to a difficulty.[25]
[23] Re Saxton and Military Rehabilitation and Compensation Commission [2005] AATA 1095 at [27].
[24] Re Watkins and Comcare (2002) 69 ALD 498 at [92].
[25] Re Brouwer and Australian Postal Corporation [2001] AATA 570.
Ms Smith's evidence was that if she sits, stands or walks even on flat ground for 'too long' she starts to limp, a reaction primarily referable to her knee condition, but the limp in turn throws out her back and causes her pain in the spine. Ms Smith said she has problems ascending a stationary travelator, or any stairs or ramp which she has to bend forward when ascending, because of the stooping posture she has to adopt and the pain in her back which eventuates. Descending stairs or a ramp is not a problem because she can remain upright. She said she often feels some soreness at the time, but it is because of the pain afterwards that she tries to avoid traversing such ramps, slopes or rough terrain.
It was also argued that it is only if pain occurs during the activity that it would amount to a difficulty and Ms Smith’s increased pain generally occurred at the end of the activity not while it was being undertaken. Dr Ahmad conceded that if pain meant a person slowed down, that would indicate 'difficulty' because 'if the person's pain stopped them from walking or climbing stairs ... that definitely would be a difficulty'. Dr Le Leu initially agreed that if pain was not occurring at the time of the ascent it could not be described as a difficulty at the time. However, he later agreed that if the subsequent pain was such that the person had to lie down and the person was discouraged from climbing stairs or slopes by the knowledge that it was painful, that would be a difficulty from their point of view.
The Tribunal notes s that Ms Smith had some pain in her back even when undertaking the activity but the heightened level of pain occurs at the end of the exertion. However, the Tribunal finds that even though the additional pain experienced may follow the activity rather than being experienced contemporaneously, it would be a pedantic reading of Table 9.5 to refuse to recognise this as being a difficulty. As Ms Smith said 'If you ever tried to straighten up after being stooped over ... it is quite painful'. That pain is due to the activity and would not have occurred but for that activity and can be characterised as a difficulty associated with the activity.
The Tribunal also finds that Ms Smith’s ability to negotiate grades and steps was impaired both by her instability from the anterior cruciate tear of the knee and from the numbness and loss of feeling and control of her leg due to her back pain. Walking more slowly and carefully may be characterised as no more than a minimal effect and would not be a difficulty. However, in this case, there was an objective, observable impact, namely, Ms Smith’s widened gait adopted to counteract her feeling of instability, as well as her more slow and cautious approach to negotiating grades and steps, not observed in earlier medical reports referring solely to Ms Smith’s knee instability. Together these impacts amount to a difficulty with grades and steps. The Tribunal’s finding is supported by Ms Smith’s need for household support for activities that involve bending over, her increased levels of pain following sitting or standing for more than 40—50 minutes, and her need for bed-rest for up to 10 days a year to recover from flare-ups of her back condition. Together, these support the finding that Ms Smith’s back condition causes her pain in ascending ramps and steps indicating that she has a more than minimal difficulty with that activity.
In reaching that conclusion the Tribunal has taken into account the impact of pain on Ms Smith’s functioning. The Tribunal notes that in her case it is not preferable that the pain she experiences in undertaking grades and steps and other activities of daily living, should only be assessed under the Non-economic Loss Questionnaire. She was allocated a relatively low score of 2 for pain in that Questionnaire, presumably in recognition that she has constant low back pain and not reflecting the heightened pain Ms Smith experiences when negotiating ramps and steps and the more serious flare-ups up of pain due to her back condition which require her to take leave for up to 10 days or so a year.
The Tribunal notes that the difficulty for Ms Smith in ascending grades and steps is due to the combined effects of her knee and back injuries. This finding is supported by earlier medical evidence that following her injury to her knee in 1998 and before Ms Smith’s back condition became symptomatic, she had problems ‘descending stairs’[26] rather than, as at present, with ascending stairs and ramps[27]. That suggests there must be a new reason for that difficulty which on the evidence is due to her back condition. No evidence was provided as to the proportionate contribution of her knee injury or her back injury.
[26] Dr Gillespie’s report , 14 October 1998.
[27] Dr Le Leu’s report, 27 April 2012.
The Tribunal finds that it is sufficient to indicate that Ms Smith experiences an impairment now which she did not experience previously and that this contribution indicated a more than minimal functional impairment and hence was a 'difficulty'. The inference which the Tribunal accepts is that this observed indicator is referrable to her back injury. So although Ms Smith was observed by Dr Singh-Pander in 1994 to have some of the same kinds of symptoms as she currently exhibits, including developing pain and a protective limp, these symptoms were not then exacerbated by her numbness and shooting pain to the left leg, weakness in that leg, to the extent that avoids traversing grades, steps and rough terrain if possible, and leading to heightened pain in her back and instability when negotiating stairs and ramps. That conclusion takes into account that despite both her back and her knee injuries, Ms Smith had intermittent periods of being physically active between 2004 and 2007 but that she is now restricted to walking and some yoga for exercise.
Although Dr Ahmad did not observe that Ms Smith was experiencing any difficulty with grades and steps, he said he could not recall whether she used the banister, whether he had asked her if she was in discomfort, and he did not notice that she had a wide gait. He acknowledged that his field test took at most 10 minutes and although he did not resile from his findings, he also acknowledged that his observations were made over 14 months previously and that he had not been focusing in his assessment on the proportionate responsibility of Ms Smith’s knee condition as compared with her back condition, since he was not asked to do so.
For these reasons, the Tribunal prefers the opinion of Dr Le Leu whose report was provided only 4 months prior to the hearing, and who was asked to consider the effects on Ms Smith of not only her back condition but also her knee problems as well. He also confirmed that there was a contribution from both her knee condition and her back condition to her feelings of instability, causing her widened gait and greater caution negotiating grades and steps. Accordingly, the Tribunal finds that Ms Smith had an observable difficulty with grades and steps but not with distances.
In conclusion the decision in relation to Table 9.6 is affirmed. The decision in relation to Table 9.5 is set aside. The Tribunal remits the matter to the Commission to reassess the compensation for permanent impairment payable to Ms Smith under the Combined Values Table from an assessment of 10 per cent permanent impairment under Table 9.5 in combination with a 10 per cent permanent impairment under Table 9.6.
I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member.
............................[sgd]............................................
Associate
Dated 14 September 2012
Date(s) of hearing 13 August 2012 Counsel for the Applicant Steve Whybrow Advocate for the Applicant Geoff Wilson Solicitors for the Applicant Maurice Blackburn Counsel for the Respondent Sophie Callan Advocate for the Respondent Luke Woolley Solicitors for the Respondent Sparke Helmore
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