Morse and Comcare - [2002] AATA 516

DECISION AND REASONS FOR DECISION [2002] AATA 516

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2000/311

GENERAL ADMINISTRATIVE DIVISION       )
           Re      WAYNE ROBERT MORSE
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr KL Beddoe, Senior Member Dr JB Morley, Member Major-General JN Stein, AO, Member

Date27 June 2002
PlaceBrisbane

Decision The Tribunal decides: the decision under review is set aside; the applicant has a 10% impairment of the right knee within the terms of Table 9.2 of the Guide; the matter is remitted to the respondent to give effect to the Tribunal's decision; and the respondent pay the applicant's costs as agreed or as taxed by a Deputy Registrar in accordance with the Practice Direction.

(Sgd) K L Beddoe
SENIOR MEMBER

Decision No: 516/2002
CATCHWORDS
COMPENSATION – Permanent Impairment – assessment of permanent impairment to right knee.
Safety Rehabilitation and Compensation Act 1988 ss 24(1),(2), 28

REASONS FOR DECISION

27 June 2002 Mr KL Beddoe, Senior Member Dr JB Morley, Member Major-General JN Stein, Member

On 30 September 1999 the applicant's Solicitors applied for lump sum payment of compensation for impairment to the applicant's right knee.
By letter dated 14 October 1999 the respondent notified rejection of the claim. The Solicitors sought reconsideration of the decision and by notification dated 10 February 2000 the applicant was advised that the refusal had been affirmed on reconsideration.
Section 24(1) of the Safety Rehabilitation and Compensation Act 1988 ("the Act") provides for liability for compensation payable to an employee in respect of an injury that results in permanent impairment.
Section 24(2) of the Act provides that for the purpose of determining whether an impairment is permanent, regard is to be had 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.

Section 4(1) of the Act defines "impairment" to mean the loss, the loss of the use, or damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function. The sub-section also defines "permanent" to mean "likely to continue indefinitely".
Section 28 of the Act provides for the respondent to prepare an approved Guide to the Assessment of the Degree of Permanent Impairment. Table 9.2 of that Guide provides for assessment of the loss of range of joint movement of the lower extremity of the musculo-skeletal system and Table 9.5 provides for assessment of impairment of lower limb function.
At the hearing Mr Harding appeared for the applicant and Mr Bickford appeared for the respondent. The documents lodged in the Tribunal pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the "T" Documents and further documents were tendered and marked as exhibits. Oral evidence was given by the applicant, Dr White, an Orthopaedic Surgeon, Ms Bertoldi, an Occupational Therapist and Dr Goode, a Specialist Occupational Physician.
We make the following findings of fact.
The applicant was born on 14 June 1971 and enlisted in the Australian Army on 24 July 1990. He was an infantry soldier until October 1995 when he changed category to become a pay clerk.
On 5 February 1991, while acting in the course of his employment, the applicant suffered injury to his right knee. The incident is fully reported in the "T" Documents. Treatment was provided at the time and the applicant had time off from his normal duties.
On 16 July 1991 the respondent admitted liability under the Act for twisted right knee.
There is a recorded re-occurrence of twisted right knee on 4 December 1991.
None of that prevented the applicant from engaging in sporting activities during the early 1990s and the applicant has continued employment in the Army, albeit on duties more sedentary than those of an infantry soldier. He continues to play golf and capacity for distance running has been reduced to 2.5 km because of the knee condition resulting in stiffness in both knees.
In oral evidence the applicant said that he had placed more weight on this left knee with resulting deterioration in that knee.
He treats excessive pain with Panadol but takes no other medication. He is unable to mow lawns but manages most other household tasks but has problems with stairs because of pain in his knees.
Dr Grant gives a history of the left knee being twisted while playing soccer on 15 May 1997 with valgus stress. Anterior cruciate ligament rupture of the left knee was confirmed (T35).
In 1997 the applicant had a successful reconstruction of his left knee and eventually returned to full duties including running and satisfied combat criteria.
The Medical Evidence
Document T37 is a copy of a report dated 6 May 1999 by Dr White, Orthopaedic Surgeon. The report is addressed to the applicant's Solicitors. Dr White records a brief history consistent with the evidence. The report discusses the injuries to both knees.
Dr White said in his report that the condition of the right knee was permanent but the condition may be improved to a degree by surgery followed by physiotherapy. He found no assessable impairment under Table 9.2 of the Guide but an assessable impairment under Table 9.5 of 20% on symptomatic grounds.
Exhibit A is a copy of a further report by Dr White dated 18 December 2000. Dr White confirmed that his assessment of impairment had been on symptomatic grounds.
In oral evidence Dr White said that he found no evidence of exaggeration. He also said that there was no evidence of crepitus which is essential for a diagnosis of chondromalacia patellae, but he conceded there may have been a change since he saw the applicant.
The applicant also relies on the evidence of Jacel Bertoldi, an Occupational Therapist. Document T38 is a copy of a report by Ms Bertoldi dated 15 July 1999 and addressed to the applicant's Solicitors. The report relates to the applicant's functional capacity and in particular notes loss of less than half normal range of movement in both knees noting difficulty with grades, steps and walking distances.
In oral evidence she said loss of functional movement would be for most days. She had tested for stairs, grades and walking. She was unaware that the applicant had been doing a weekly 2.4 km run but noted he could do situps and pushups. She was also aware that the applicant was required to undertake half yearly fitness for combat tests.
The respondent called Dr Goode, a Specialist Occupational Physician, to give evidence. Exhibit 1 is a copy of a report by Dr Goode dated 18 September 2000 and addressed to the respondent's Solicitors. Dr Goode had the benefit of the reports we have already referred to and he noted a detailed history of incidents involving the right knee. Dr Goode noted the applicant does a 2.5 km run three times per week.
Dr Goode reported a slight loss of movement in the right knee. Because of the reported running of 7.5 km per week he thought the whole person impairment for the lower limbs would be less than 10%.
In his oral evidence Dr Goode said that the applicant had not reported nocturnal pain to him. He queried whether there had been some improvement by the time he saw the applicant (September 2000).
Dr Goode said he found crepitation of the right knee but with no signs of minuscule derangement.
Consideration
As the respondent concedes the applicant suffers impairment of the right knee, this is clearly an issue as to the extent of that impairment which seems to be activity related i.e. slopes and stairs are difficult for the applicant but running on flat surfaces results in some discomfort and after effects but the activity can be undertaken.
Insofar as it is suggested that the range of movement allows strenuous activity and so the impairment is not permanent, we do not accept that submission. The impairment is constant, in our view, so that there will always be difficulty with stairs and slopes and effects upon and resulting from other activities such as running on flat surfaces and long distance walking.
Considering all the material before us and accepting, as we do, that the applicant is a credible witness whose evidence is to be accepted, we are satisfied, and find, that there has been permanent impairment of the right knee due to the 1991 incident with aggravation caused by the condition of the left knee.
Insofar as it is suggested that the applicant should undertake further surgery, we have concluded, in the light of the medical evidence, that the applicant's decision not to undergo further surgery is reasonable in the circumstances.
We are satisfied that there is permanent impairment of both knees. In relation to the right knee it is correctly assessed, in our view, under Table 9.2 of the Guide and is to be assessed separately. Our reason is that the left knee has previously been assessed and it is therefore appropriate that we confine our assessment of permanent impairment to the right knee.
We have concluded that there is a 10% impairment within the terms of Table 9.2 because there is a loss of less than half normal range of movement of the right knee.
The decision under review will be set aside and the matter remitted to the respondent with a direction that the applicant has permanent impairment of the right knee at 10% under Table 9.2.
We will make the usual order as to costs.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Mr KL Beddoe, Senior Member, Dr JB Morley, Member and Major-General JN Stein, Member
Signed:
           Associate
Date/s of Hearing  9 July 2001
Date of Decision  27 June 2002
Counsel for the Applicant        Mr A Harding
Solicitor for the Applicant         Messrs D'Arcys, Solicitors
Counsel for the Respondent    Mr P Bickford
Solicitor for the Respondent    Messrs Blake Dawson Waldron, Solicitors