Moon and Comcare
[2002] AATA 324
•23 April 2002
DECISION AND REASONS FOR DECISION [2002] AATA 324
ADMINISTRATIVE APPEALS TRIBUNAL )
) No D2001/10
GENERAL ADMINISTRATIVE DIVISION )
Re JASON CHARLES MOON
Applicant
And COMCARE
Respondent
DECISION
Tribunal Mr. D.W. Muller, Senior Member
Date23 April 2002
PlaceDarwin
Decision The Tribunal sets aside the decision under review and determines that: 1. JASON CHARLES MOON has a service-related permanent impairment of 10 per cent pursuant to the "Guide to the assessment of the degree of permanent impairment". 2. The respondent is to pay the applicant's costs in accordance with the General Practice Direction.
.............(Signed).................................
D.W. MULLER
SENIOR MEMBER
CATCHWORDS
COMPENSATION – degree of permanent impairment
REASONS FOR DECISION
23 April 2002 Mr. D.W. Muller, Senior Member
This is an application to review a decision dated 17 June 2000 as affirmed on reconsideration on 3 January 2001, to reject an application by Jason Charles Moon, for compensation for permanent impairment, claimed to arise out of his employment with the Australian Defence Forces, and in particular his employment with the Australian Army.
The applicant was born on 4 August 1973. He joined the Australian Defence Force as a 16 year old in 1989.
By late 1992 when he was 19 years of age, that is three years after his enlistment, the applicant began to develop pain in his lower legs after marching and other activities in which he was required to run or walk long distances at reasonable speed.
By 1995, when the applicant was about 22 years of age, the pain, in his lower legs had become much worse on marching, walking, running. It got worse still by 1996.
The Army sent him to Sydney for an operation. He was diagnosed as having chronic compartment syndrome in both lower legs. The operations he had on both legs in Sydney were not successful. He developed an infection in one of his legs. He was re-admitted to Darwin Hospital to clear that up. His symptoms were in fact, worse after the operation than they were before. He had a further operation on his left leg in Darwin and he has not really had much improvement.
The applicant had trouble with heavy lifting. It caused pain and swelling in his legs. He had trouble going up and down stairs. He developed pains in his legs. He had problems with the usual things that Army people have to do, like marching long distances. He developed pain, which sometimes took a day or so to go away.
He was discharged from the Army in June of 2001. He now works as a service manager for a motorcycle company.
The Tribunal heard evidence from Dr. Lugg that anterior compartment syndrome is caused by the muscle which is contained in thin tissue, being at a high pressure. Upon exercise the pressure increases, cuts off the blood supply, causes more swelling, causes pain and the person with the syndrome experiences a cyclical pattern of increasing pain. Dr. Lugg said that the problem arises because people with the syndrome have a standing pressure which is high in the first place.
However, the initial problem is made worse by the development of musculature because the muscle swells and increases the pressure in the sheath. Dr. Lugg said that you do not see this syndrome in non-muscular people. You do not see it in people who lead sedentary lives. He sees a lot of it in Army personnel, professional footballers and people who are active.
It is the Tribunal's view that although Mr. Moon may have developed the syndrome somehow or other if he had not been in the Army, depending on what he did with his life, it is by no means inevitable that he would have developed the syndrome. The fact of the matter is he developed it in the Army because, no doubt, of the pressure put upon his legs and the developing of the musculature in his legs. The syndrome that he developed was caused by his work in the Army.
The syndrome that he developed as a direct result of his Army service, is permanent. It will not get any better, unless perhaps in his old age he becomes more spindly. He has had two operations on one leg and one on the other. He has been offered another round of operations but involving a more extensive and more invasive procedure, in which some of the muscle would be removed. He does not like the sound of that operation and in the Tribunal's view, it is quite reasonable for him to not have another operation. He has undertaken all reasonable rehabilitative treatment for the impairment. To ask him to do anything more is unreasonable.
The question is what the degree of permanent impairment is in relation to his whole person. The appropriate table is nine point five. There is no doubt that he has difficulty with grades and steps. If he walks on grades and steps for any period of time he gets pain which prevents him from continuing for any reasonable length of time. He has a level of impairment of at least 10 per cent.
The question then is whether he is permanently impaired to the extent of 20 per cent. He does walk distances pig shooting. He can walk around the shopping centre. In 1998 he had a 15 kilometre route march, albeit with great pain. He can walk fairly reasonable distances provided he takes it easy. He certainly cannot march at a fast clip for long distances but he can manage distances. He is not permanently impaired to the extent of 20 per cent.
The Tribunal sets the decision under review aside and finds that the applicant has a work related permanent impairment of 10 per cent.
The Respondent is to pay the applicant's costs, as per the General Practice Direction.
I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. D.W. Muller, Senior Member
Signed: .....................................................................................
B. Hitchcock, Personal AssistantDate/s of Hearing 23 April 2002
Date of Decision 23 April 2002
Counsel for the Applicant Mr. Bruxner
Solicitor for the Applicant Ward Keller
Counsel for the Respondent Ms. E. Ford
Solicitor for the Respondent Australian Government Solicitor
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