Re Brouwer and Australian Postal Corporation - [2001] AATA 570

DECISION AND REASONS FOR DECISION [2001] AATA 570

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1714

GENERAL ADMINISTRATIVE DIVISION          )
           Re      Christopher Brouwer
  Applicant
           And    Australian Postal Corporation
  Respondent

DECISION

Tribunal Ms SM Bullock, Senior Member

Date21 June 2001
PlaceSydney

Decision      The decision under review is set aside and in substitution therefor the Tribunal decides pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth) that the Respondent is liable to pay compensation to Mr Brouwer pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). The Tribunal further decides that the Respondent should pay the Applicant's costs.
  .....................[sgnd]...................
  Ms SM Bullock
  Senior Member

DECISION (CORRIGENDUM)

Before : Ms S M Bullock – Senior Member

Date: 16 July 2001

Place: Sydney

The Tribunal made a decision in this matter dated 21 June 2001 pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 ("the Act");

It has come to the Tribunal's attention that there was a clerical error under Table 14.1 of the "Guide to the assessment of the degree of permanent impairment" in paragraphs 104 and 105 of that decision.

The Tribunal desires to amend the decision pursuant to section 43AA of the Act and provides as follows:

The figure "20" (per cent) should be deleted from both paragraphs and be replaced with the figure "19" (per cent).

.........................................
Ms S M Bullock
Senior Member

Catchwords
COMPENSATION - Injury to Left Leg and Right hand - Permanent Impairment - Whether Impairment Reaches 10 Per Cent Threshold - Interpretation of Instruments - "Guide to the Assessment of the Degree of Permanent Impairment"

Legislation
Safety Rehabilitation and Compensation Act 1988 (Cth) ss 4, 24, 27, 28, 67,
Comcare Guide to the Assessment of the Degree of Permanent Impairment

Authorities
Comcare v Amorebieta (1996) 66 FCR 83
Re Whelan and Department of Defence (1997) 47 ALD 383
Whittaker v Comcare (1998) 86 FCR 532
Re Toohey and Australian Postal Corporation (1998) (AAT 13360, 9 October 1998)
Re Morley and Comcare (1996) 40 ALD 725

REASONS FOR DECISION

21 June 2001 Ms SM Bullock, Senior Member

Mr Christopher Brouwer, the Applicant, has made an application for review to the Administrative Appeals Tribunal, ("the Tribunal") of a decision of the Australian Postal Corporation ("Australia Post") dated 20 August 1999 (T44) as affirmed by the Reconsideration Section on 6 September 1999 (T48), to refuse Mr Brouwer compensation in respect of his claim for permanent impairment of the right arm and left leg injuries, pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
A hearing was held before the Tribunal in Newcastle on 8 March 2001 and in Sydney on 9 March 2001. The Applicant was represented by Mr L T Grey of Counsel who was instructed by Mr C Hart of Bale, Boshev and Associates. The Respondent, Australia Post, was represented by Mr G Johnson of Counsel, instructed by Mr L Forner of Forners, Solicitors and Consultants. Mr Brouwer provided oral evidence to the Tribunal. Dr C D Browne, Rheumatologist, provided evidence by conference telephone and Dr N W McGill, Orthopaedic Surgeon, provided evidence at hearing. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) ("T documents" T1-T50) and the following exhibits:
Exhibit Number    Description Date
T1 – T50 Section 37 Statement and Documents. Various
A1      Reports of Professor Y A E Ghabrial, Orthopaedic and Spinal Surgeon.     1 December 1999 1 February 2001
A2      Reports of Dr C D Browne, Rheumatologist.     4 July 2000 31 July 2000
A3      Report of Ms J Mitchell, Physiotherapist. 27 October 1999
A4      Report of Ms L Smith of Hunter Imaging Group.           17 January 2001
A5      Report of Dr C D Browne, Rheumatologist.       8 March 2001
A6      Two photographs of Mr Brouwer's legs. undated
A7      A photograph of Mr Brouwer with right arm in plaster cast.     undated
A8      Radiological Reports of: Dr D Bassett; Dr A Woodward; Dr M Parfait.          4 September 1997 16 September 1997 28 October 1997
R1      Reports of Dr N W McGill, Consultant Rheumatologist.          3 March 2000 20 July 2000 9 February 2001 23 February 2001
R2      Reports of Dr R Cameron, Consultant Surgeon 3 February 2000 8 August 2000 20 February 2001
R3      Video from National Inquiry Service        6 June 2000 10 June 2000
R4      Report of Mr S Haywood, National Inquiry Service      12 June 2000

Issues

The issue to be determined in this matter is whether or not Mr Brouwer 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 (Cth). In order to determine the issue of permanent impairment, the Tribunal must consider whether Mr Brouwer's injuries satisfy the 10 per cent impairment threshold pursuant to section 24 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), to be determined in accordance with the Comcare "Guide to the Assessment of the Degree of Permanent Impairment" ("The Comcare Guide").
It is not disputed that on 4 September 1997, Mr Brouwer suffered injuries to his left leg and right hand and wrist, following a motorcycle accident on the way to work. A determination was made by the Respondent on 17 September 1997, accepting liability for fracture of the left tibia and fibula (T6).
Legislation
The relevant legislation in this matter is the Safety Rehabilitation and Compensation Act 1988 (Cth) ("the Act"), specifically sections 4, 24, 27, 28 and 67 of the Act.
Section 4 of the Act deals with interpretation and as relevant states:
"4. (1) In this Act, unless the contrary intention appears:
…
"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.
…"
Section 24 of the Act deals with injuries resulting in permanent impairment and as relevant states:
"Compensation for injuries resulting in permanent impairment
24.(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, where Comcare determines that the degree of permanent impairment of the employee is less than 10 per cent, an amount of compensation is not payable to the employee under this section.
…"
Section 27 of the Act deals with compensation for non-economic loss and as relevant states:
"Compensation for non-economic loss
27(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 of the Act deals with the Approved Comcare Guide and as relevant states:
"Approved Guide
28(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 licensed authority, a licensed corporation 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.
…."
Section 67 of the Act deals with the costs of proceedings before the Tribunal.
Background
The following information is provided by way of background and is not disputed.

On 4 September 1997, Mr Brouwer suffered an injury to his lower left leg, right wrist and hand following a collision with a wheelbarrow when he was riding his motorcycle to work (T3).
Mr Brouwer was admitted to Maitland Hospital on 4 September 1997 under the care of Orthopaedic Surgeon, Dr J Hammond. Dr Hammond reported that on admission Mr Brouwer had "…a large, distally-based flap laceration overlying his left patellar tendon. The wound was quite dirty. There was distortion of the anatomy of his leg" (T9, p35). Dr Hammond further reported that X-rays taken of Mr Brouwer's left knee, left leg, left foot, pelvis and right wrist revealed comminuted fractures of the tibia and fibula, at the junctions of the middle and lower thirds, with some displacement. There were also undisplaced fractures of the waist of the right scaphoid and distal end of the right radius. Mr Brouwer was taken to the operating theatre where Dr Hammond lavaged and debrided the wound on his left knee and sutured it. An open reduction and internal fixation of his fractured leg was undertaken using a "dynamic compression plate and screws". The fractures of the right wrist were contained within a plaster cast. Following surgery, it was found that Mr Brouwer had a deep venous thrombosis and he then underwent "Warfarinisation" for six months. Mr Brouwer was discharged home from Maitland Hospital on 25 September 1997 and physiotherapy was commenced with Ms Mitchell.
On 10 September 1997, Mr Brouwer completed a "Claim for Rehabilitation and Compensation" in relation to a fractured right hand and wrist, fractured left leg and laceration (T4).
On 17 September 1997, Australia Post accepted liability in respect of Mr Brouwer's fractured left tibia and fibula (T6).
On 28 November 1997, Dr Hammond reported to Mr Brouwer's General Practitioner, Dr S Ireland, that Mr Brouwer's range of motion of his left knee and ankle was gradually improving. Mr Brouwer was noticing increasing aching in his left knee. The right wrist was giving him little trouble. At that time, Dr Hammond opined that Mr Brouwer was ready to return to light duties within a short period (T11).
On 9 December 1997, Mr Brouwer was assessed by Ms M Forbes, Rehabilitation Consultant with Kairros Pty. Ltd, who concluded that at that time Mr Brouwer was cleared for suitable duties from 8 December 1997, with restriction to sedentary duties, limited walking and gradual increase of his working hours. In relation to Mr Brouwer's functional capacity, Ms Forbes noted that Mr Brouwer was walking with a slight limp and had to be assisted by new walking shoes. Mr Brouwer was limited to the amount of walking he was able to undertake and he was also having discomfort in sitting for long periods. At that time, Mr Brouwer was reporting that his left leg swelled very easily with normal walking activity (T50, p111).
On 21 December 1997, Mr Brouwer returned to work on a graduated return to work program (T13).
In early January 1998, Mr Brouwer was noted by Ms Mitchell, Physiotherapist, to have been discharged from all clinical treatment, thereafter proceeding to an independent gym program.
On 21 January 1998, Dr B Cappa reported that Mr Brouwer was fit for suitable duties from 21 January 1998 to 18 February 1998 (T5, p20).
As of 23 January 1998, Mr Brouwer ceased work as a Postal Delivery Officer with Australia Post. He had tendered his resignation on 9 January 1998 (T14).
On 9 March 1998, Dr Hammond reviewed Mr Brouwer and found him to be walking very well but having lost "quite a deal" of muscle bulk in his left leg. Physiotherapy was continuing. Dr Hammond advised Mr Brouwer not to return to soccer that season, although he could undertake light training but not on uneven surfaces or involving any twisting (T21).
Dr Hammond further examined Mr Brouwer on 6 May 1998, noting that Mr Brouwer was continuing with his gym program, with his left leg becoming stronger, although still quite obviously less muscular than his right leg. Mr Hammond noted ongoing problems with Mr Brouwer's left knee and ankle, which had mainly to do with stability (T22).
On 15 September 1998, Ms Mitchell, Physiotherapist, noted that Mr Brouwer did well but continued to have problems with ankle range of movement and an inability to run, having previously been a "keen sportsman". These continuing problems had been reported to Dr Hammond, who had referred Mr Brouwer back to physiotherapy for treatment and manual mobilising. Ms Mitchell reported that Mr Brouwer was discharged back to his gym program at the end of August and was awaiting an appointment with Orthopaedic Surgeon, Dr K Slater (T28).
On 24 September 1998, Dr K Slater, Orthopaedic Surgeon, reported that Mr Brouwer was walking with a satisfactory gait. However, examination of his left knee indicated moderate quadriceps wasting on the left, but normal stability and no effusion. The left ankle was noted by Dr Slater to show moderate restriction of dorsiflexion when compared to the right. There was slight restriction of plantar flexion on the left with excellent stability and minimal tenderness being noted. Dr Slater opined that Mr Brouwer's current symptoms in the left ankle may settle after the removal of the residual metal. Dr Slater noted there was no surgical procedure that would improve Mr Brouwer's range of motion in the left ankle and that he was likely to have a slight permanent restriction of dorsiflexion, but without pain. Dr Slater further opined that most of Mr Brouwer's left knee symptoms should resolve with increased quadriceps bulk (T29).
On 19 January 1999, Mr Brouwer had the metal plate and screws removed from his left tibia (T33).
On 14 April 1999, Professor Y A E Ghabrial, Orthopaedic and Spinal Surgeon, reported that Mr Brouwer's main problems were: stiffness and pain in the left ankle; pain in the left knee; and, pain and stiffness in the right wrist. Professor Ghabrial opined that the diagnoses of Mr Brouwer's conditions were:
"1.       Comminuted fracture of the left tibia and fibula
2.       Laceration of the left knee
3.       Fracture of the right scaphoid bone
4.       Fracture of the right lower radius
5.       Lateral ligament injury to the left ankle" (T37, p70)
Professor Ghabrial opined that Mr Brouwer would continue with his present disabilities and remain unfit for activities involving excessive use of the right hand and wrist, walking on uneven ground, going up and down stairs or climbing ladders. Professor Ghabrial concluded that Mr Brouwer's condition was reasonably stable and that future complications were unlikely. At that time, in April 1999, Professor Ghabrial assessed the permanent loss of the efficient use of Mr Brouwer's right upper limb at or above the elbow was 20 per cent. The permanent loss of the efficient use of the left lower limb at or above the knee, taking into consideration any loss below the knee, was assessed at 30 per cent. Professor Ghabrial opined that Mr Brouwer's present clinical features, residual disabilities and permanent impairment were the result of injuries sustained to his left ankle, left knee and right wrist in the motorcycle accident on 4 September 1997 (T37).
On 3 June 1999, Mr Brouwer completed a "Compensation Claim for Permanent Injury", claiming 20 per cent loss of efficient use of the right arm at or above the elbow and 30 per cent of loss of use of the left leg at or above the knee (T40).
On 11 August 1999, Dr R Cameron, Consultant Surgeon, reported on Mr Brouwer following examination. Dr Cameron noted that Mr Brouwer had a history of right wrist and left leg fractures in a work-related motor vehicle accident. Dr Cameron further noted Mr Brouwer's continued complaints of discomfort in his right wrist and left lower limb. Physical examination by Dr Cameron revealed a good recovery of both injuries with only minor restrictions of left ankle movement which, Dr Cameron opined, may well improve in the future. There was some sensory loss in the left upper leg but it was of little practical significance, Dr Cameron opined. Turning to the assessment of Mr Brouwer's injuries, Dr Cameron opined that there was a zero per cent permanent impairment resulting from the injury of the upper limb under Table 9.5 of the Comcare Guide. In relation to the left lower limb, Dr Cameron concluded that under Table 9.2 of the Comcare Guide, there was a five per cent whole person impairment. Dr Cameron concluded that Mr Brouwer's impairments could not be reduced by any further medical or rehabilitative treatment and the impairments were not likely to deteriorate significantly (T42).
On 20 August 1999, a determination was made by the Respondent to deny liability for permanent impairment in respect of Mr Brouwer's right arm and left leg injuries (T44). The determination noted Dr Cameron's percentage level of impairment and concluded that there was no compensation payable under sections 24 and 27 of the Act.
On 31 August 1999, a request for reconsideration was made by Mr Brouwer (T45) and on 6 September 1999, a decision was made by Mr P L Smith, of the Reconsideration Section, affirming the decision of the delegate made on 20 August 1999 (T48).
On 1 November 1999, Mr Brouwer made an application for review to the Tribunal (T1, p3).

Evidence of Mr Brouwer

Mr Brouwer told the Tribunal that prior to September 1997, he had no problems with his right or left leg and his right hand and wrist. He was an active sportsman, a cyclist, had had aspirations to play in the First Division soccer team, played touch football, water-skied and also jogged. Referring to photographs of his injury just after his admission to Maitland Hospital (Exhibit A6), Mr Brouwer stated that his injuries were very serious and painful. Mr Brouwer was immobilised and in great pain in his left leg and also had a plaster cast on his right arm, which was also painful. Mr Brouwer noted that he was discharged from hospital on 26 September 1997. He had to have his home equipped with aids such as railings on the stairs, a new bed and other equipment which assisted him with his mobility. Mr Brouwer recalled making slow, painful and frustrating progress towards recovery. Mr Brouwer told the Tribunal of having another accident at home when he fell out of a deck chair. He toppled over and hit his injured leg but fortunately there were no long term effects, as reported by his treating Orthopaedic Specialist at the time, Dr Hammond.
Mr Brouwer explained to the Tribunal that while the progress following the accident was slow, the level of pain gradually lessoned over time. Currently Mr Brouwer noted that he might take diagesics for pain but does not like taking medication.
In relation to his right wrist and thumb, Mr Brouwer says he finds it difficult to grip things and to open the lids of jars, providing the Tribunal with the example of his difficulty on the morning of the hearing, trying to open a jam jar lid. Mr Brouwer also finds it difficult to operate door handles, not including those of car doors. Mr Brouwer is right hand dominant but has found that because of lack of strength in his right hand and dexterity difficulties, he has had to compensate by using his left hand more and more. Mr Brouwer told the Tribunal that he has been unable to use a computer mouse because of the pain and discomfort and now uses a graphic stylus pen which operates in a similar way to a mouse, but does not illicit the same difficulty with pain, discomfort and mobility which he found with the mouse. Mr Brouwer also told the Tribunal that he has difficulty with buttons. Because of the difficulty of gripping a plectrum, he cannot play the guitar, a leisure pursuit which he previously enjoyed. Mr Brouwer acknowledged, however, that part of the difficulty with playing the guitar also involved his loss of technique, but was clear that there was also the difficulty of holding his thumb and finger because of his injury. Mr Brouwer did not recall telling the various specialists he had consulted of his problems related to the guitar or difficulty with buttons. He had also not mentioned any of these problems in his Economic Loss Questionnaire.
Mr Brouwer estimated that in the last two years, his discomfort with his right hand had been continuous and during the past 12 months, his discomfort has been at the same level. Mr Brouwer described experiencing aching at the base of his thumb and he has to try and roll it to obtain relief. Mr Brouwer also noted that his thumb often clicks. There is a worsening of the discomfort and aching he feels, particularly when the weather is cold. Mr Brouwer did not agree that he has a full range of movement of the wrist. While he was able to undertake certain movements, Mr Brouwer noted that it had to be understood that he does have difficulties with wrist movement, but just gets on with what he has to do.
Mr Brouwer told the Tribunal that he was able to complete his Bible Study course and Graphics Design course using the computer because he could use a graphic stylus pen instead of a mouse. He was also able to write because this was done in small parcels of time. During his Bible Study course, he did "two finger typing" and was able to keep up. Mr Brouwer also told the Tribunal that he has difficulties with turning taps on and off. If the level of discomfort or inability to undertake action becomes great, Mr Brouwer stated that his way of adapting was simply to use his left hand.
In relation to the use of his left leg, Mr Brouwer stated that he underwent a long process of physiotherapy and hydrotherapy. Just as progress was slow with the improvement of his right hand, progress was slow and frustrating with his left leg. Mr Brouwer stated that he found the worst area was at the wound site and below his knee. He noted that this area is very tender, especially below the left knee cap. The scar area from his surgery is numb and Mr Brouwer stated that he has found this hazardous. He easily scrapes or grazes his leg because he has no sensation at that particular location. At the fracture site, Mr Brouwer stated there is constant aching and this increases in cold weather. There is also a part of his left leg that swells up if he has been on his leg for any length of time. Mr Brouwer further explained that if he sits down for too long, then he experiences numbness up his left leg to his buttock. The swelling starts from the top of his socks upwards.
Mr Brouwer described a loss of stability in his left ankle and aching in the joint. This pain he often experiences in the achilles tendon area. Mr Brouwer noted that if he were to walk or run too far, he would end up hobbling with associated swelling.
Mr Brouwer acknowledged that he had taken on a cleaning position in January 1998, which involved the usual cleaning type duties, wiping down machines and carrying of buckets and mops. Mr Brouwer told the Tribunal that he would use his left hand when his right hand became painful. If there was any mopping up to do, he often found this difficult, particularly on metal floors and if he had been on his legs too long. The difficulty in working on a metal floor was that it was hard, and his leg would become "floppy". Mr Brouwer described himself as becoming clumsy, then tripping over things.
In the last two years, Mr Brouwer estimated that his left leg symptoms have remained at about the same level. Mr Brouwer stated that he can walk on level, smooth, ground but after approximately 100 metres, there is discomfort with his left foot and ankle and he has to slow up. He then experiences pain, particularly at the fracture site. Mr Brouwer told the Tribunal that he can walk up and down steps if he takes his time and he is not doing this activity for very long.
Mr Brouwer described being able to go shopping with his wife, but noted occasions when he has had to leave before the shopping was completed, because the pain he experiences is so great. This pain especially occurs going up inclines such as hills and he has to stop and take a break. Mr Brouwer acknowledged that he can undertake such an activity but only slowly. Another left leg difficulty is that walking on uneven ground causes problems because Mr Brouwer's stability is poor, his left ankle rolls and this makes him clumsy and prone to falling.
Mr Brouwer noted that there is a big difference between his left and right leg. Coming down steps is difficult, although he acknowledged that he could do this with the assistance of a rail.
Mr Brouwer is trying to increase his level of fitness. He told the Tribunal that he is better at running than walking but as with everything, he cannot do too much of it. Overactivity only results in swelling of his left leg, pain and a tendency to fall. If Mr Brouwer has overexerted himself, he often has to sit still with his left leg raised and packed with ice. Mr Brouwer cannot now undertake water-skiing because the strapping of his feet, in particular into the water-ski binding, causes great pain and he has very poor stability. Mr Brouwer told the Tribunal that he used to play soccer regularly at a high level and has recently resumed this activity. Mr Brouwer told the Tribunal that he now plays in a lower level team, where the age range of the players is from 17 years up to 30 years. He tries to play the full 90 minute game and in the 2000 soccer season, stated that he missed two or three games because of the problems with his left leg. Mr Brouwer stated that at the level he plays soccer, there is not constant running for the entire 90 minutes, rather activity is undertaken in small periods of running. In these circumstances, he stated that he is mostly able to cope. What often happens, however, is that he must put his leg in ice after the game because of the pain and swelling. Mr Brouwer stated that he loves soccer and he wants to try to become fitter. He described his dilemma to the Tribunal, involving making a decision as to whether the after-effects of playing soccer are worth it. Mr Brouwer's long term perspective is that he does not want to cause further damage to his left leg, which would then prevent him or limit his ability to play with any future children he and his wife might have.
Mr Brouwer told the Tribunal that since his accident, he has coached a women's football team. This activity was difficult, as he had to be able to run and keep up with the players. He could not participate in more than one session per week without causing himself great pain and discomfort.
At the time of hearing, Mr Brouwer had not made up his mind whether he was going to continue playing soccer in the 2001 season. In the summer, Mr Brouwer had played touch football, which he did for some 12 weeks prior to Christmas 2000, with the season resuming in February 2001. Prior to the accident, Mr Brouwer had always been fit and he reiterated that he wishes to try to achieve a higher level of fitness. In relation to touch football, he can only stay on the field for bursts of three or four minutes and then has to go off. Mr Brouwer is unable to sustain the concerted running required for any length of time, without experiencing great pain and discomfort, for which the recovery time lasts for days or longer.
Mr Brouwer used to run regularly prior to his injury. Again, whilst he has resumed running from time to time, he has to pace himself, ensure his running course is level and limit his running time.
Mr Brouwer was asked about the surveillance video. Mr Brouwer stated that the circumstances of the particular day on which he was filmed involved his attending a job interview in Newcastle at the NIB Credit Union. Mr Brouwer stated that he had parked where he did because it was the only car park in Newcastle he was aware of. Mr Brouwer stated that he was not a resident of Newcastle and did not know of other carparks such as Kings's Carpark which may have been located closer to the place of his interview. Mr Brouwer stated that on the day of his interview, he had unfortunately attended the wrong address and in fact, because of this mistake, had to walk further than was intended. Mr Brouwer noted that he had no difficulties going down the spiral staircase because he had taken his time. Mr Brouwer told the Tribunal that unfortunately, the video ceased before recording his having to take a short rest before continuing on his walking journey. Mr Brouwer acknowledged that he was able to walk along the path, up Hunter Street and that parts of his journey included negotiating a slope. Mr Brouwer did not know of the distance he had traversed, but accepted advice from Mr Johnson that the journey was approximately 1.2 kilometres. Mr Brouwer pointed out to the Tribunal that when stepping down off the footpath, his left foot "splayed out". This movement may not have been apparent to the Tribunal, Mr Brouwer noted, but it does occur because of Mr Brouwer's instability and the rolling of his ankle.
In relation to other video footage, Mr Brouwer explained that he had gone to his wife's grandmother's home to assist with the removal of some building debris. Mr Brouwer acknowledged that this work involved removing tubular guttering and some aerated concrete blocks. Mr Brouwer agreed that the video showed him having no difficulty carrying the tubular guttering or of bending it by placing his left foot on it. Further, Mr Brouwer also acknowledged that he had no difficulties carrying the aerated concrete blocks with his right hand. Mr Brouwer noted that his grandmother did not have any difficulty undertaking this activity either. He stated that the aerated concrete blocks were very light. The tubular guttering was pliable and easily bent by using his foot. There was a slight incline to Mrs Brouwer's grandmother's house, but Mr Brouwer stated that as he said previously, such small inclines over short distances do not cause him any particular problems. Mr Brouwer agreed that the video showed him using his right hand without restriction and also using his left leg without apparent restriction.
Mr Brouwer did not agree with the proposition put by Mr Johnson, that what might be a minor difficulty for older people who are less fit, was a major problem for him because he was so fit. Mr Brouwer stated that it must be understood he has ceased being as active and fit as he was previously because of his injuries. He is simply unable to undertake the activities to the level he did before. Mr Brouwer explained to the Tribunal that he is not claiming that he cannot do things; the distinction is that he cannot undertake activities to the level he used to do because of too much pain, discomfort and lack of stability and dexterity. These problems are the result of his accident, which puts limits on the level of his activity. Mr Brouwer stated that he has had to live with his condition and adjust to the pain and to the lowered degree of mobility and stability. Mr Brouwer stated he has just got on with his life as best he can, acknowledging that there are problems and he must adjust for them.
In relation to the various medico-legal examinations with specialists, Mr Brouwer did not recall Dr Cameron asking him to do a full squat, but if he were to have asked he would have done his best. Further, he did not agree with Dr McGill that he can use his fingers normally. Mr Brouwer also did not agree with Dr McGill's assessment of his walking "normally" in the video. Mr Brouwer stated that he has not walked normally since his accident.
MEDICAL EVIDENCE
Professor Y A E Ghabrial, Director, Department of Orthopaedic Surgery, Royal Newcastle Hospital
In addition to the report of 14 April 1999 (T37), provided by Professor Ghabrial, Orthopaedic and Spinal Surgeon, he provided two further reports dated 1 December 1999 and 1 February 2001 (Exhibit A1).
Professor Ghabrial noted in his report of 1 December 1999, that he had reassessed Mr Brouwer's disabilities and impairments according to the Comcare Guide and concluded that in relation to Mr Brouwer's right upper limb, using Table 9.1, the appropriate assessment is 10 per cent whole person impairment. In relation to the left lower limb, Professor Ghabrial used Table 9.5 of the Comcare Guide to assess Mr Brouwer's whole person impairment at 20 per cent. Professor Ghabrial was subsequently provided with X-rays of Mr Brouwer's left tibia and fibula and right wrist, which were performed on 17 January 2001. Professor Ghabrial noted that in relation to the left tibia and fibula, the fracture showed full union with slight postero-medial angulation distally. In relation to Mr Brouwer's right wrist, Professor Ghabrial noted no evidence of any deformity of the right scaphoid bone and radius. Professor Ghabrial did note some minimal cortical thinning in relation to the radial aspect of the distal ulna, which he considered to be related to Mr Brouwer's previous trauma. The fractures of the right scaphoid and the right lower radius were noted to have healed. In light of these recent X-rays, Professor Ghabrial stated that he had no reason to change his opinion as reported previously on 14 April 1999 (T37) and 1 December 1999 (Exhibit A1).
Dr C D Browne, Rheumatologist
Dr Browne provided a number of reports to the Tribunal dated 4 July 2000, 31 July 2000 (Exhibit A2) and 8 March 2001 (Exhibit A5).
In his report of 4 July 2000, Dr Browne reported Mr Brouwer's complaining of symptoms of stiffness of the left ankle with inability to dorsiflex the ankle. Further, Mr Brouwer told Dr Browne of pain in the achilles tendon region and of having difficulty standing. Mr Brouwer's left ankle tendered to give way easily and Mr Brouwer further informed Dr Browne of having the need to place a pillow between his ankles in bed at night because he experiences night pain and intermittent swelling of his left ankle. Mr Brouwer reported difficulties to Dr Browne with squatting and walking for more than half an hour. In relation to his right hand and wrist, Dr Browne reported Mr Brouwer experiencing recurrent pain in the right thumb base with weakness of pinch grip and experiencing pain in lifting heavy objects. Dr Browne noted Mr Brouwer's difficulty in using a pen and a computer mouse. Mr Brouwer's right hand was also noted to be sensitive to trauma and weather changes increase Mr Brouwer's right hand symptoms. At Mr Brouwer's left knee, Dr Browne reported Mr Brouwer experiencing aching and numbness below the knee and an inability to kneel on the left knee. Dr Browne noted that Mr Brouwer is able to run and was hoping, as at the date of that report in July 2000, to return to soccer.
Dr Browne diagnosed Mr Brouwer's conditions as:
"1.       Comminuted fracture of the left tibia and fibula
2.        Fracture of the right scaphoid bone and distal radius
3.        Lateral ligament injury to the left ankle
4.        Laceration of the left knee" (Exhibit A2)
Dr Browne opined that Mr Brouwer has residual left ankle symptoms as a result of his accident on 4 September 1997 and experienced night pain and a tendency for the left ankle to give way. This symptom makes it difficult for Mr Brouwer to run and play sport. Dr Browne considered that Mr Brouwer would be unfit for work which required kneeling, squatting or stair climbing on a repeated basis, or of negotiating ladders. Dr Browne further opined that Mr Brouwer has residual right wrist pain, with difficulty in writing and using a computer mouse for long periods and that he also has weakness of grip, which could limit Mr Brouwer with certain sports and an inability to lift and carry heavy loads. Dr Browne considered that Mr Brouwer has recovered well from his knee injury.
Dr Browne assessed Mr Brouwer as having a 20 per cent permanent loss of efficient use to the right upper limb at or above the elbow, which took into account any loss below the elbow. Further, Dr Browne opined that Mr Brouwer has a 25 per cent permanent loss of efficient use of the left lower limb at or above the knee, taking into account any loss below the knee. Dr Browne concluded that these impairments were directly related to the consequences of Mr Brouwer's motorcycle accident on 4 September 1997 (Exhibit A2).
In his report of 31 July 2000 (Exhibit A2), Dr Browne noted that he had reviewed the video of Mr Brouwer's activities while walking in the streets of Newcastle and assisting in the removal of rubbish from a property. Dr Browne noted that Mr Brouwer appeared not to limp during the period of video surveillance, but further noted that Mr Brouwer's experience of any pain during those activities could not be measured by a video. Dr Browne noted that the 3.5cm of wasting of Mr Brouwer's left thigh, in contrast to the right side, signifies residual impairment of the function of Mr Brouwer's left lower limb and while he may experience pain with walking, this did not prevent Mr Brouwer from walking and carrying out many activities of daily living. Dr Browne opined that this did not deny the fact that Mr Brouwer may experience significant left ankle pain with prolonged standing and walking as a result of his injury.
Dr Browne's further report of 8 March 2001 noted that Dr Browne had reviewed X-ray studies undertaken on 17 January 2001, with reference to the assessment of impairment under the Comcare Guide. Dr Browne concluded that in regard to Table 9.4, Mr Brouwer has a 10 per cent whole person impairment. In relation to Table 9.2, Dr Browne opined that Mr Brouwer has a five per cent whole person impairment. (Exhibit A5).

At hearing, Dr Browne noted that from his examination of Mr Brouwer, he would expect that Mr Brouwer would experience a certain amount of pain and discomfort with wrist movement and thumb based pressure, which is adjacent to the site of his injury. Dr Browne opined that these problems would not be inconsistent with Mr Brouwer having difficulty doing-up buttons with his damaged hand. Further, in terms of strumming the guitar, if that involved repetitive wrist action, Dr Browne stated that this would also cause Mr Brouwer pain and prevent him from being able to continue playing the guitar for more than a short period of time. The nature of his injury was consistent with the complaints he made in this regard, Dr Browne concluded.
In relation to any difference between Mr Brouwer's left and right ankles in terms of movement, Dr Browne noted that there was a difference in that his ability for flexion in his left ankle was reduced relative to the right side.
Dr Browne was asked about his use of Table 9.4, which deals with limb function – upper limb. Dr Browne noted that this table involved the assessment of digital dexterity, which involves the ability to move the fingers. Dr Browne was asked how his rating under Table 9.4 could be construed against Dr McGill's opinion that Mr Brouwer had no loss of movement of the fingers or the thumb in his right hand. Dr Browne did not agree that Mr Brouwer had no permanent loss of digital dexterity, opining that digital dexterity also applies to Mr Brouwer's thumb and all digits. Dr Browne opined that Mr Brouwer has, in particular, an impairment of the thumb dexterity because of the thumb base injury and the adjacent fracture in the disc radius which relates to the thumb base. Use of the right thumb for repetitive tasks, such as the use of the computer mouse or writing or playing a guitar, are important as there is a link between the fracture injury in terms of Mr Brouwer's thumb function. Dr Browne stated that he was not referring to loss of movement but rather functional thumb impairment and indirectly, hand function through the effect of Mr Brouwer's wrist injury. Dr Browne opined that there are changes, which are likely to be occurring in Mr Brouwer's right thumb and wrist, which would account for his inability to maintain repetitive use of his hands, in particular his thumb. Further, Dr Browne opined that digital dexterity applies to the capacity to maintain dexterous use of the hand over a sustained period. It did not refer to the loss of range of movement but was rather a functional impairment. Thus, Dr Browne noted that although there may be no loss of movement of the right fingers or thumb, there was difficulty with repetitive activity. Dr Browne did not, therefore, disagree with Dr McGill's finding of Mr Brouwer having full movement of the fingers and thumb. Such a finding was not necessarily inconsistent with making an assessment under Table 9.4 of the Comcare Guide.
In the context of dexterity, Dr Browne understood that that is the ability to perform fine movements with the fingers or thumb for more than just a single movement and that it involves a repetitive sequence of movements. In Dr Browne's view, Mr Brouwer has an impairment of function to maintain repetitive activities, including such activities as playing the guitar, sustained writing with a pen and using a computer mouse. Dr Browne reiterated that it is not a question of loss of range of movement of the joint. The more relevant finding is that pain was in fact limiting Mr Brouwer's ability to perform such movements, so that indirectly there is an effect on his digital dexterity. Dr Browne conceded in relation to playing the guitar, that part of this problem for Mr Brouwer was that he had fallen out of practice in using the guitar and had lost technique. In relation to doing up and undoing buttons, there needed to be an assessment of the amount of pressure required to force a button through a button hole. If there were a series of buttons, then Dr Browne could conceive of such an action causing discomfort in Mr Brouwer's right hand and there would need to be some pressure applied in putting the button through a buttonhole. Dr Browne reiterated that it was not a question of loss of range of movement, but rather the pain experienced in applying the force with Mr Brouwer's thumb base in the process of doing buttons. The right thumb movement was integral to doing up buttons. Mr Brouwer's expression of experiencing pain arising from the thumb base, Dr Browne thought, was quite consistent with Mr Brouwer complaining of difficulty in performing a buttoning task.
It was put to Dr Browne that whatever the limitation Mr Brouwer had with his right hand, it was so slight that it could not be described as a loss of digital dexterity in the context of the Comcare Guide. Dr Browne opined that Mr Brouwer has a painful disorder of the thumb base, which is well documented, and that practice would not improve the pain he experienced when performing a task. It is not something which one could condition or improve through training because it was a joint disorder. The difficulty and discomfort Mr Brouwer complained of in relation to sustained writing, use of the computer mouse and undoing jars was quite consistent with all of Dr Browne's findings in relation to digital dexterity and his rating under Table 9.4.
Dr Browne was asked to consider the video evidence of Mr Brouwer's loading material onto a utility truck. Dr Browne noted that Mr Brouwer appeared to be able to manage handling guttering and carrying cement with no apparent difficulty to his upper limbs. Further, Dr Browne noted that he did not detect Mr Brouwer's showing any unusual or irregular gait or limping or favouring of his left leg. Dr Browne opined that he would not have expected to have evidenced a loss of movement in Mr Brouwer's left ankle as he does not have a gross loss but rather, a relatively mild loss of range of movement. Dr Browne noted that Mr Brouwer's complaint is more of stiffness and discomfort of the ankle, which Dr Browne opined, would not be detectable on a video.
In relation to Mr Brouwer's evidence about playing touch football and particularly his inability to play in anything other than a lower team, Dr Browne opined that Mr Brouwer is likely to suffer some discomfort after undertaking such activity. Dr Browne noted that Mr Brouwer is very strongly motivated to play sport and had been active prior to his injury. He was not surprised that Mr Brouwer experiences a sore left leg after the game and has to apply ice.
Dr N W McGill, Consultant Rheumatologist
Dr McGill provided a number of reports dated 3 March 2000, 20 July 2000, 9 February 2001 and 23 February 2001 (Exhibit R1).
In his first report, Dr McGill noted that Mr Brouwer provided a clear history and was fully cooperative. In relation to the circumference of the dominant right forearm, Dr McGill corrected his written report at hearing, noting that the circumference of the dominant right forearm 10cm distal to the olecranon, was 26.0cm on the right compared with 25.75cm on the left.
Dr McGill noted Mr Brouwer's reported discomfort in his left ankle and distal leg when running, if he jars his foot and after extended walking such as when shopping. Dr McGill noted Mr Brouwer did not use medication for this discomfort. Dr McGill noted a very minor restriction of dorsiflexion of the left ankle and wasting of the left thigh which Dr McGill expected would improve with the improvement of his mobility into the future. While Dr McGill noted Mr Brouwer's report of residual tenderness over the right distal ulna and right scaphoid, there was no restriction of wrist or hand movement. Dr McGill opined that there was no instability or laxity or evidence of any significant ligamentous injury in either the left ankle or the right wrist regions. Dr McGill concluded that Mr Brouwer had residual discomfort in his distal left leg and right wrist region due to the previous fractures. Minor restriction of left ankle dorsiflexion was due to soft tissue changes resulting from the initial injury and period of immobilisation. These problems were directly due to the accident of 4 September 1997.
In terms of assessment, Dr McGill assessed Mr Brouwer as having a five per cent whole person impairment under Table 9.2 on the basis of a loss of less than half the normal range of movement of the ankle. The amount of loss of range of movement in Mr Brouwer's case is less than 10 per cent of normal. While Dr McGill accepted Mr Brouwer's comments that he experiences discomfort when running and after prolonged walking or standing, Dr McGill did not think that this rated an impairment in accordance with Table 9.5 of the Comcare Guide. There was also no impairment under Table 9.1. Dr McGill concluded that there was no indication for treatment and noted Mr Brouwer thought that his symptoms had plateaued. Dr McGill opined that Mr Brouwer would experience a gradual reduction of residual discomfort over time and there was no evidence of joint disease. While Mr Brouwer's prognosis was good, Dr McGill concluded that there may be minor restriction of left ankle dorsiflexion which was present at the time of examination.
In his report of 20 July 2000, Dr McGill reported having seen the 15 minute video. The video did not cause Dr McGill to change his initial assessment and he opined that the video footage supported his conclusion that Mr Brouwer had no impairment in accordance with Table 9.5 of the Comcare Guide. Dr McGill observed that in the video, Mr Brouwer used his upper limbs normally while handling guttering and carrying cement. There was no indication of any upper limb impairment. Dr McGill noted neither visible asymmetry of gait, nor any difficulty with this left foot.
In his report of 9 February 2001, Dr McGill had considered an X-ray report arising out of X-rays performed on 17 January 2001. On the basis of Dr McGill's clinical findings on 3 March 2000 and X-ray reports supplied, Dr McGill opined that Mr Brouwer has a very minor X-ray change but no loss of function or no X-ray change and no loss of function. In either case, Dr McGill assessed a nil impairment in accordance with Table 9.1.
Dr McGill's final report of 23 February 2001 noted that he had actually examined the X-rays of 17 January 2001. Dr McGill believed the X-rays were entirely normal for the right wrist. The X-rays of the left tibia and fibula also performed on 17 January 2001, demonstrated fully healed fractures with surrounding callus formation of the tibia and fibula at the junction of the upper two-thirds and lower one-third of those bones. Dr McGill noted the bone alignment was very good with only minimal posteromedial angulation of the distal component.
Dr McGill opined that Mr Brouwer's left leg fractures could be rated under Table 9.2 for lower extremity. The appropriate rating is a five per cent whole person impairment because of some loss of range of movement.
At hearing, Dr McGill reiterated his assessments as contained in his report. In relation to Table 9.5 for lower limbs function, Dr McGill did not consider a rating was warranted, as he did not believe that discomfort after prolonged walking or standing rated an impairment level such as indicated by the table's minimum description of having a difficulty with grades and steps.
Dr McGill was asked to consider Mr Brouwer's recent history of playing touch football or soccer on a regular basis, but then having to regularly put his left leg and foot up or put ice on it because of discomfort, pain and swelling. Dr McGill noted that he had recorded a history of Mr Brouwer having pain after running but not packing his left leg in ice. Dr McGill opined that, medically, he would see this as a difficulty with the activity. Dr McGill would not have thought that Mr Brouwer would have needed to put his leg up with ice, however, that depended on how vigorous the match was. If Mr Brouwer was playing soccer regularly and for a full match, then it is possible that he would have to put his foot in ice, Dr McGill opined. The fact that a person was able to continue to play a full soccer match gave Dr McGill an idea of the level of difficulty, but if the play was of a small amount of touch football or a casual soccer match, then he would not have expected Mr Brouwer would need to put ice on his leg. Dr McGill would not rate Mr Brouwer under Table 9.5, noting a history of playing soccer in the 2000 season in a team of people ranking from age 17 to age 30.
In relation to Table 9.1 for upper extremity, Dr McGill stated that there was no objective evidence of any impairment of Mr Brouwer's right hand or finger function. Dr McGill noted a full range of movement and noting the type of injuries Mr Brouwer sustained, he would not have expected any residual impairment. Further, the X-rays of 17 January 2001 were normal. While Dr McGill noted that Mr Brouwer had some discomfort undertaking activities such as unscrewing bottle tops and that was quite possible, it was also possible to have such discomfort without indicating a significant loss of function. Dr McGill noted that it was reasonable that people who had fractures such as those experienced by Mr Brouwer, would report discomfort when undertaking such activities. Dr McGill had noted Mr Brouwer's report of aching at the thumb most of the time and whilst this was unusual, given the nature of the injury and the full range of movement, it was neither impossible nor unreasonable for him to have this complaint. Nor was there any suggestion by Dr McGill that there was any lack of credibility on Mr Brouwer's part.
In relation to Table 9.4 for upper limb function, Dr McGill noted that he had made no rating under this table because there was no objective difficulty with Mr Brouwer's digital dexterity. In this regard, Dr McGill noted that there was no abnormality of the right hand or wrist found either on examination or in Mr Brouwer's X-rays. Dr McGill did not deny that Mr Brouwer had intermittent discomfort. He would have liked to have been able to see some evidence of that difficulty or pathology. Dr McGill noted that even though there is no evidence of the difficulty complained of by Mr Brouwer and no evidence of pathology, he still could accept that there would be circumstances where Mr Brouwer might have some discomfort.
Dr McGill was asked why he had not used Table 9.4 in making an assessment of Mr Brouwer. Dr McGill noted that during the process of examining a person, he would take a detailed history allowing the patient to speak freely. There would then be a physical examination and at the end of this process, Dr McGill would turn his mind to any specific questions asked of him by the referring authority. Dr McGill had noted Mr Brouwer's comments of discomfort in using his right hand, but then he compared this with the objective evidence and on the examination, there was no objective evidence of any impairment. Dr McGill reiterated that he accepted Mr Brouwer's reporting of symptoms was accurate, including the aching of the right thumb most of the time. Whilst such symptoms were unusual they were not impossible.
The symptoms of aching over the base of the right thumb, Dr McGill accepted, could cause discomfort in certain activities. The report of tenderness over the right scaphoid was consistent with a scaphoid fracture, although Dr McGill opined that most people with an undisplaced scaphoid fracture end up with perfectly normal looking scaphoid X-rays with no symptoms. Dr McGill further noted that it was not impossible that Mr Brouwer needed to regrip objects occasionally because he has pain and then has to regrip. Further, Dr McGill agreed that Mr Brouwer may have some discomfort opening bottles but did not think this would be significant. Dr McGill noted that normal people experienced pain in their joints intermittently and he would have been surprised if anyone in the hearing room had not had some joint pain, including in joints where they did not believe they had any problems.
Dr McGill agreed that he did not specifically consider Table 9.4, but he did very specifically consider the function of Mr Brouwer's right hand and wrist in detail. Dr McGill told the Tribunal that he did not set out in undertaking such a medico-legal assessment, to think about a specific Comcare Guide table. He reiterated that he takes the whole history, examines the person and then starts the medical assessment. While not specifically asking questions about digital dexterity, Dr McGill firmly stated that the type of history he took in his examination had as its focus Mr Brouwer's left leg and right wrist and he did ask specific questions about the right wrist.
Dr McGill did not ask Mr Brouwer whether he played any musical instruments or had an difficulties with doing up buttons. Dr McGill noted that he does observe people's function when they are dressing and undressing. Dr McGill did not recall asking Mr Brouwer whether he had any difficulty using a pen or whether he had any difficulty using a computer mouse. Dr McGill noted that he did speak to Mr Brouwer about his future plans and his computer business and there was nothing mentioned about any difficulties. Dr McGill noted that he would have thought that if someone had difficulty undertaking their future work, then this might well have been something which would be mentioned to the examining doctor. Dr McGill did not accept that he may have missed a genuine impairment rating under Table 9.4, because there were no objective signs and assessment of function which would have pointed him towards an assessment under that table. Dr McGill noted that he did not have a history of Mr Brouwer's having any difficulty going up flights of steps or grades. Mr Brouwer may well have reported some discomfort going up a flight of stairs, but the difficulty is having some evidence that Mr Brouwer loses fluency in his walking in undertaking that activity.
Dr R Cameron, Consultant Surgeon
Dr Cameron provided a number of reports dated 3 February 2000, 8 August 2000, and 20 February 2001(Exhibit R2).
Having reviewed a 15 minute video of Mr Brouwer, who Dr Cameron had examined previously on 11 August 1999, Dr Cameron noted that Mr Brouwer was a tall young man with no evidence of skeletal disability in his left foot or ankle or his right hand while undertaking physical activities.
Dr Cameron confirmed information recorded in his medical report of 11 August 1999 (T42), that Mr Brouwer is experiencing zero per cent impairment of his left leg with reference to Table 9.5. In terms of Table 9.1, Dr Cameron opined that Mr Brouwer has a zero per cent permanent impairment of his right upper limb.
Dr Cameron noted the video showed Mr Brouwer undertaking some brisk walking approaching a jog with no evidence of musculoskeletal disability in the left foot or ankle and further, no disability with this right hand while undertaking physical activity. Dr Cameron did note Mr Brouwer's previous history to him of loss of upward ankle movement and a sensation of loss of stability, particularly when running.
In his report of 20 February 2001, having reviewed X-rays of 17 January 2001, Dr Cameron reiterated his previous opinion with regard to Table 9.1, that Mr Brouwer was experiencing a zero per cent permanent impairment of his right wrist.
Ms J C Mitchell, Physiotherapist
Ms Mitchell provided a report dated 27 October 1999 (Exhibit A3). She noted that Mr Brouwer had been referred to the physiotherapy practice on 26 September 1997 at the request of Dr Hammond. Ms Mitchell noted that throughout his rehabilitation, Mr Brouwer had worked with determination and consistency and regularly reported his frustration at not being able to run effectively, having always being a keen sportsman, especially in soccer. Ms Mitchell noted that since commencing treatment, Mr Brouwer had consistently continued his exercise program at home and persevered with trying to improve his range and running ability. Ms Mitchell noted that Mr Brouwer was not undertaking any sport at that time, although he had trained with his soccer team. Ms Mitchell reported that during a training session however, Mr Brouwer's ankle and shin around the fracture site became progressively sore and he had to stop playing. The subsequent ache took four to five weeks to settle and at the time of reporting in October 1999, Mr Brouwer had not returned to soccer. Ms Mitchell further reported a walking tolerance of ten minutes with no problems, but continued walking produced ankle and fracture pain, intermittent knee pain and the maximum time that Mr Brouwer could walk would be 30 minutes. Ms Mitchell noted that Mr Brouwer could squat but not fully on the left and the position was awkward, uncomfortable and produced numbness at the tips of the lateral four toes. On examination, Ms Mitchell noted that Mr Brouwer had a mildly "paddling gait" on the left which was more pronounced in running. The dorsiflexion range of movement in eccentric loading was at least eight degrees less on the left side.
Submissions

Mr Grey submitted that Mr Brouwer had experienced a very serious injury as attested to by the photographs provided as Exhibits A6 and A7.
In relation to Mr Brouwer's right wrist injury, in Mr Grey's submission, Mr Brouwer provided evidence of his difficulties without any embellishment. None of the doctors, including Dr McGill, had suggested that the Applicant was anything other than genuine and that he was not exaggerating his symptoms. If the Tribunal accepted Mr Brouwer as a witness of truth, then it should also accept that Mr Brouwer has significant problems with his upper limbs. The activities causing him difficulty, as explained to both Dr Browne and Dr McGill and to the Tribunal, are those which involve putting pressure on his right thumb, for example, in undertaking twisting or turning hand motions. This includes Mr Brouwer's difficulty in opening door handles other than on car doors; the use of the computer mouse; writing with a pen and doing up and undoing buttons. Mr Grey further noted Mr Brouwer's evidence concerning playing a guitar, specifically because it involves holding the plectrum tightly between Mr Brouwer's forefinger and thumb. There is also wrist action in strumming. Mr Grey submitted there is clear difficulty with digital dexterity in all of these activities. Digital dexterity is not about range of movement of the fingers, but about a functional use of the digits as reported by Dr Browne.
Mr Grey referred the Tribunal to Re Toohey and Australian Postal Corporation (1998) (AAT 13360, 9 October 1998) in which the Tribunal discussed digital dexterity. In that decision, the Tribunal noted:
"53 In the Tribunal's view, 'digital dexterity', involves ease of use of the fingers and hand without undue restriction. In the Applicant's case, the lateral epicondylitis of his right arm affects his ability to use his fingers and hands for certain tasks involving grasping, holding and extension of the fingers. Repetitive performance of these activities causes pain in the elbow which in turn restricts his ability to use his fingers and hand in these ways. The Tribunal therefore found the applicant has difficulty with digital dexterity caused by pain…".
Mr Grey submitted that the position outlined in Re Toohey (supra) is precisely the situation in which Mr Brouwer finds himself in relation to the injury to his wrist. Dr Browne's evidence was that it is medically understandable that the injury to the scaphoid bone, which had come into the joint, would result in pain at the base of the thumb and this pain would cause problems in the use of that digit in the way that Mr Brouwer has consistently described. Mr Grey submitted that an impairment of 10 per cent under Table 9.4 of the Comcare Guide was appropriate. A 10 per cent level of impairment refers to use of the limb for self-care and grasping and holding, but having difficulty with digital dexterity.
In relation to a rating under Table 9.1 of the Comcare Guide, which deals with the upper extremity, Mr Brouwer has difficulty in this table, in that it is accepted that Mr Brouwer has made a good recovery in terms of the healing of the fracture and X-ray changes are not evident, Mr Grey submitted.
In relation to Table 9.2, which covers the lower extremity, Mr Grey submitted that there is no dispute between Dr McGill, Dr Browne or Dr Cameron that there is a five per cent impairment, which in Mr Brouwer's case, covers loss of less than half the normal range of movement to the left ankle.
Mr Grey submitted that the law is that if Mr Brouwer has a higher assessment under Table 9.5, then that should be accepted in preference to Table 9.2. There was however a difficulty with Table 9.5, which covers limb function – lower limb, in terms of interpreting the Comcare Guide's wording concerning "difficulty with grades and steps" and walking distances. Mr Grey submitted there are two possible ways of interpreting Table 9.5. Firstly, it can be interpreted that if a person cannot perform a task or there is difficulty in performing the task such that an observer looking at the person could observe the difficulty, then that becomes a "rateable" difficulty. A second approach to the interpretation of Table 9.5 is to say that if you are mostly able to do a task without any discomfort or difficulty yet there could be some discomfort perhaps not on every occasion, but there was an awareness that the person had discomfort, pain or restriction of movement, then this could also be rated. Mr Grey submitted that Mr Brouwer clearly has problems in undertaking a number of activities, which prior to the accident he had no difficulty performing. This includes playing touch football, running and soccer without discomfort. While he now is motivated to play touch football and soccer, he suffers problems, having to put his left leg up for a period, even for days afterwards and having to apply ice. Clearly, Mr Grey submitted, Mr Brouwer has been left with permanent problems and the issue is whether or not he can be assessed under Table 9.5.
Mr Grey contended that if the Guide is interpreted beneficially, it could not be that someone such as Mr Brouwer, who suffers discomfort and pain regularly as a result of going up grades and steps, running or walking distances, could be found to have a zero impairment. While noting Dr McGill's interpretation of Table 9.5, Mr Grey submitted that if you have a difficulty in rising to a standing position, difficulty in walking or running distances, then it is nonsensical to be unable to be rated under Table 9.5 when the clear evidence is, in Mr Brouwer's case, that he is more restricted than he had been prior to September 1997.
Mr Grey submitted that the Tribunal should look at this matter in the context of the individual, because when one talks about "normality" this has to be related to the individual. It is important to look at what a person used to be able to do before the injury or disease and what affect the injury has had on them. In Mr Brouwer's case, he was a young man, obviously very fit, playing high grade soccer and undertaking a great deal of other sporting activities. Currently, while Mr Brouwer is attempting to still play soccer, it is at a lower grade and he has identifiable and unchallenged problems as a result of this activity. Mr Grey referred the Tribunal to Mr Brouwer's evidence that he has learnt to live with the difficulty, the pain and discomfort as just a part of his life, one to which he has become accustomed. Mr Grey submitted that when measuring the level of impairment, it is not a question of whether Mr Brouwer can put one foot in front of another for 1.2 kilometres and back as evidenced in the video, but a question of what he was experiencing in the process of walking this distance. What Mr Brouwer told the Tribunal is that he was having pain and discomfort when he walked. Further, Mr Brouwer has pain and discomfort on going to the supermarket with his wife and has to sit down. One should not dismiss or belittle the degree of disability because as in Mr Brouwer's case, he came from a high threshold of physical capability and his pain and discomfort are not readily visible on a video tape. The Comcare Guide tables should be read beneficially by reference to the individual and not to some common notion of normality. Mr Grey submitted that the Tribunal should consider how Mr Brouwer was prior to the accident and what difficulty he now has compared to what he was like before.
Mr Grey concluded that the appropriate impairment ratings for Mr Brouwer are 10 per cent under Table 9.4, five per cent under Table 9.2 but properly interpreted, Mr Brouwer ought to rate a higher percentage of ten or perhaps 20 per cent (as opined by Professor Ghabrial) under Table 9.5. Mr Grey concluded his submission by asking that costs be awarded to the Applicant.
In final written submissions provided to the Tribunal on 22 March 2001, Mr Grey noted that nothing in Whittaker v Comcare (1998) 86 FCR 532 or Comcare v Amorebieta (1996) 66 FCR 83 is inconsistent with the proposition that the Comcare Guide is concerned with the actual loss of function in an individual. In this regard, Mr Grey referred the Tribunal to the hypothetical situation of a person undergoing a medical examination at the time he or she first commenced employment with a Commonwealth Authority and at that time there was an assessment of a 10 per cent impairment under Table 9.6 as a result of some congenital lumbar spinal problems. Assuming that that person then suffered a further 10 per cent impairment under Table 9.6 as a result of a work injury to the lumbar spine, it would be surprising indeed if Australia Post took the view in that case that the claimant should recover compensation under section 24 by comparison with some objectively defined "normal healthy person", thus recovering 20 per cent under section 24 rather than by comparison with the person the claimant actually was at the commencement of employment and thus recovering 10 per cent. Mr Grey submitted that in relation to Comcare v Amorebieta (supra), that matter concerned the error in discounting impairment for the presence of some underlying degenerative disease which did not itself produce a measurable impairment until subjected to a work-related aggravation.
Mr Grey reiterated his submission at hearing that Mr Brouwer should not be compared with the lowest common denominator of a normal healthy person who was nowhere near as fit and capable as Mr Brouwer was pre-injury. Mr Brouwer should be functionally compared with the normal healthy person he was before the injury, Mr Grey submitted. This approach is the only sensible approach to be taken in an attempt to be consistent with the beneficial purpose of the Act, Mr Grey submitted. Mr Grey referred the Tribunal to Re Whelan and Department of Defence (1997) 47 ALD 383 and a reference in that decision to Re Morley and Comcare (1996) 40 ALD 725, in which it was noted that until Mr Morley's back problems developed to current levels, he was a very fit healthy man who played Australian Rules football and went jogging every morning and afternoon. In Re Morley (supra) it was noted that a normal healthy person in his early forties who had always led an active life, would not be tired after walking two kilometres around the lake nor would he need to take a walking stick. Further, in Re Whelan (supra), the Tribunal found that Mrs Whelan was in her early forties and until her Defence Department-caused problems, she had also led an active life with regular runs, bushwalking, tennis, gardening and outdoor activities on a farm. The Tribunal found in Mrs Whelan's case, that walking for longer than half an hour would not have caused her difficulty if not for her work-related bilateral chondromalacia patellae.
Mr Johnson for the Respondent first dealt with the common ground as found in the opinions of Dr McGill and Dr Cameron, that Mr Brouwer had a five per cent whole person impairment under Table 9.2, which represented less than half the normal range of movement of the left ankle. In relation to Table 9.1, Mr Johnson noted that Mr Grey had virtually conceded that there would be no rating under Table 9.1 as it related to the right wrist. While Professor Ghabrial had suggested a 10 per cent permanent impairment under Table 9.1, that opinion was not shared by Dr McGill, Dr Cameron or Dr Browne and it would be difficult on the evidence to conclude other than that Mr Brouwer had a normal X-ray of his right wrist.
In relation to Table 9.5, there was a dispute, Mr Johnson noted, as the only doctor who has assigned a rating under Table 9.5 is Professor Ghabrial. Again Dr Browne, Dr Cameron and Dr McGill provide no rating under this Table. For Mr Brouwer to succeed under Table 9.5, he would have had to demonstrate as a minimum, impairment or difficulty with grades and steps. Mr Johnson submitted that Mr Brouwer can play soccer regularly. Referring to the video evidence, Mr Johnson submitted that Mr Brouwer was able to walk the length of Hunter Street, Newcastle and back to his car, a distance of some 1.2 kilometres. Mr Brouwer was able to negotiate a spiral staircase without difficulty and this would indicate no impairment rating relative to the population in general. The majority of doctors also have not scored Mr Brouwer under Table 9.5, apart from a score under Table 9.2, of which there was agreement that five per cent was the appropriate rating.
In relation to Table 9.4, the lowest score possible is 10 per cent, which deals with using the limb for self-care and grasping and holding but experiencing difficulty with digital dexterity. Mr Johnson noted that the only doctor who scored Mr Brouwer under Table 9.4 is Dr Browne. Mr Johnson submitted that the Tribunal should reject the opinion that Mr Brouwer has difficulty with digital dexterity in the context of the Comcare Guide. Mr Johnson referred the Tribunal to the issue of permanent impairment which has to be assessed in accordance with the Comcare Guide. The Guide is there to try to objectify the assessment of permanent impairment, Mr Johnson submitted and to try to arrive at a standard whereby loss of function can be measured against the population in general. It does not involve an exercise of focusing upon an individual in the way that Mr Grey suggested. In this regard, Mr Johnson referred the Tribunal to Page 3 of the Guide which deals with "Principles of Assessment". It is noted in these explanatory notes that impairment means:
"…the loss, of use, damage or malfunction, of any part of the body, bodily system or function or part of such system or function". It relates to the health status of an individual and includes anatomical loss, anatomical abnormality, physiological abnormality and psychological abnormality…"
Those words are taken from the Act, Mr Johnson noted. Throughout the Comcare Guide, Mr Johnson contended that the emphasis is given to loss of function as a basis of assessment of impairment and as far as possible, objective criteria have to be used. Impairment is measured against its effect on personal efficiency and the activities of daily living as a measure of primary biological and psychological functioning such as standing, moving, feeding and self-care. Further, non-economic loss, which is assessed in accordance with Part B of the Comcare Guide, is a subjective concept of the effects of the impairment on an employee's life. It includes pain and suffering, loss of amenity of life, loss of expectation of life and other real inconveniences caused by the impairment. The Comcare Guide further notes that activities of daily living are used to assess impairment and should not be confused with lifestyle effects, which are used to assess non-economic loss. Lifestyle affects are a measure of an individual's mobility and enjoyment of, and participation in, recreation, leisure activities and social relationships. The Comcare Guide also notes that the employee must be aware of the losses suffered. While employees may have equal ratings of impairment, it would not be unusual for them to receive different ratings for non-economic loss because of their different lifestyles.
Mr Johnson submitted that what the Tribunal should be concerned about in relation to Mr Brouwer's right hand situation is that there is clear evidence from Dr McGill and Dr Browne that there is no loss of movement of his fingers or thumb. Dr McGill reported no objective signs of limitation at all. While Mr Brouwer did complain to Dr McGill that he had some discomfort associated with particular activities, this was occasional and relatively marginal and was not the case where the Comcare Guide envisaged a rating. Referring to Re Toohey (supra), Mr Johnson noted that Tribunal's discussion of the digital dexterity issue was in the context of a reference to the words "undue restriction". In Mr Brouwer's case, he is clearly someone who is able to use his right hand without undue restriction, Mr Johnson submitted. In Re Toohey (supra) that case turned on its own facts.
This is not a case, Mr Johnson submitted, where there should be a comparison of what was before to what is the situation now. Mr Brouwer's situation is not one where he is unable to do any fine work with his fingers or thumb or where there is a serious restriction. Mr Brouwer is able to cope and cope quite well. Moreover, Mr Johnson submitted that the Tribunal must refer to the objective criteria of the Comcare Guide. Mr Brouwer might well be disappointed about his problem, but it is not something for which he should be compensated. Mr Brouwer can only be compensated for a loss of function, Mr Johnson submitted.
It may well be, Mr Johnson submitted, that Mr Brouwer does have pain in his hand from time to time, as is dealt with in a section 27 calculation for non-economic loss. However, Mr Johnson submitted that one does not get to section 27 unless the person crosses the section 24 threshold, which involves an objective loss of function which, Mr Johnson submitted, is not present. Dr Browne in his findings under Table 9.4 had agreed that he was entirely reliant on Mr Brouwer's complaint of pain.
In his final written submissions to the Tribunal received on 13 March 2001, Mr Johnson referred the Tribunal to the definition of "Whole Person Impairment" at page 8 of the Comcare Guide, where it is noted that the Guide is structured by assembling detailed descriptions of impairments into groups according to body system and expressing the extent of each impairment as a percentage value of the functional capacity of a normal healthy person. Mr Johnson referred the Tribunal to Whittaker v Comcare (supra), where the Full Court noted that the Guide has the objective of assessing whole person impairment and that it "contains the criteria by reference to which Comcare must assess the degree of [an] employee's permanent impairment", once the employee is found to have a permanent impairment. Further, in Comcare v Amorebieta (supra), the Court found that the Tribunal had erred by taking into account "lifestyle effects", that is, steps to avoid pain or recurrence of pain, rather than considering the range of movement. In Mr Brouwer's case, Dr McGill did not consider that Mr Brouwer had either of the losses described for 10 per cent under Table 9.4 or Table 9.5 and Mr Johnson reiterated the Respondent's submission that Dr McGill's opinion should be accepted.
Finally, Mr Johnson referred the Tribunal to the Second Reading Speech to the "Commonwealth Employees' Rehabilitation and Compensation Bill 1988" where it was noted;
"….the level of payments in future will be determined using a "whole person" approach similar to that used under the Veterans' Entitlements Act 1986.
The "whole person" approach allows the degree of impairment to be assessed on a more accurate basis and expressed as a percentage loss of the use of the ability of the person to undertake normal living activities. A Guide to the assessment of amounts of compensation payable in cases of permanent impairment will be prepared by the Commission for the purposes of the Bill…."
In conclusion Mr Johnson submitted that the decision under review should be affirmed.
Findings
The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the submissions, legislation and case law.
At the outset, the Tribunal finds that Mr Brouwer provided unembellished evidence. The Tribunal considered Mr Brouwer to be a credible witness.
The pain and discomfort symptoms experienced by Mr Brouwer have been consistently reported to all specialists and have been noted also by the treating Physiotherapist, Ms Mitchell. While Dr McGill did not note specific reports by Mr Brouwer concerning his difficulties with undoing and doing up buttons, opening door handles and jars and difficulties with cold weather, Dr McGill at hearing did not dispute that Mr Brouwer could experience such difficulties and that this was related to his accident. Dr McGill also did not dispute Mr Brouwer's credibility. Dr McGill had reported difficulties experienced by Mr Brouwer in walking distances and having difficulties after running and playing sport such as soccer. In relation to the issue of Mr Brouwer playing guitar, the Tribunal finds that this relates to a combination of factors, not just to problems arising out of Mr Brouwer's right hand injuries but also to his loss of technique, which occurs when one has ceased playing a musical instrument for some time.

In the context of the Tribunal finding that Mr Brouwer was truthful in his evidence, the Tribunal has to consider the specific issues of whether or not Mr Brouwer's circumstances satisfy the provisions of sections 24 and 27 of the Act. I am satisfied, on Mr Brouwer's evidence to the Tribunal and to Dr Browne, Professor Ghabrial and Dr McGill, that he continues to experience pain and discomfort in his right hand, wrist and thumb and also experiences pain and restriction of movement in his left leg below the knee and in his left ankle with discomfort and instability. There is also the difficulty experienced by Mr Brouwer in terms of his left leg swelling above his ankle. There is also evidence of aching, pain and reduced dexterity in the right hand which becomes heightened in cold weather. This is supported by the opinions of Professor Ghabrial, Dr Browne, Dr McGill and Dr Cameron. The extent to which these problems are experienced by Mr Brouwer is of course at issue.
Turning to consideration of section 24 of the Act, the Tribunal finds that on all of the evidence, the disabilities of Mr Brouwer's right hand and lower left leg are stabilised and are permanent. The conditions have been consistently present for approximately two years and on medical opinion, not likely to improve, though Dr Cameron thought there may be some slight improvement as at 1999. All doctors have indicated that Mr Brouwer would not benefit further from any rehabilitation process. The Tribunal further notes that Mr Brouwer has been extremely diligent and cooperative in his participation in rehabilitation programs and this specifically was noted by physiotherapist, Ms Mitchell, in her report of 27 October 1999 (Exhibit A3). Hence, the Tribunal finds that Mr Brouwer meets the requirements of subsection 24(2) of the Act.
The Tribunal must next consider whether or not Mr Brouwer meets the 10 per cent threshold required by subsection 24(7) of the Act. This requirement involves the application of the appropriate Comcare Guide Tables to Mr Brouwer's conditions.
Dealing with the issue of Mr Brouwer's right hand condition, the Tribunal notes and accepts Dr McGill's findings of no loss of functional movement and no X-ray changes. This indicates a zero impairment under Table 9.1. Dr Browne also supports this rating.
The Tribunal finds however, that Mr Brouwer has experienced significant difficulty with digital dexterity in the use of his right fingers and thumb, which is occasioned principally because of pain. The Tribunal finds that in many everyday activities, Mr Brouwer experiences a reduction in his digital dexterity, for example: in doing up and undoing buttons; using a computer mouse; difficulty in opening doors, apart from car doors; in opening jars; turning taps on and off; and writing with a pen for sustained periods. The Tribunal notes that the pain and aching of the right hand increases in cold weather. The Tribunal accepts that such a finding is not inconsistent with no X-ray changes being evident or of there being no evidence of a loss of range of movement. The Tribunal bases this finding on the discussion and opinion of Dr Browne provided at hearing. Accordingly, the Tribunal considers that Table 9.4 of the Comcare Guide is applicable to Mr Brouwer's circumstances, as he is not able to use his right fingers and thumb without undue restriction. The Tribunal finds that a rating of 10 per cent is appropriate under Table 9.4 Limb Function – Upper Limb, to reflect that while Mr Brouwer can use his right hand for self care, gripping and holding, he does have difficulty with digital dexterity and this difficulty and level of impairment is more than intermittent and is regularly experienced.
In so finding, the Tribunal does not consider that the video evidence of Mr Brouwer's carrying light aerated concrete or a mobile phone or using his right hand contradicts the findings in terms of dexterity and the application of Table 9.4. The type and level of impairment experienced by Mr Brouwer is not evidenced by the video footage made available to the Tribunal.
An assessment must next be made in relation to Mr Brouwer's left leg. There are two possible Tables that the Tribunal could use to assess Mr Brouwer's left leg symptoms. Table 9.2, Lower Extremity, deals with an assessment in accordance with the range of joint movement. Also of relevance is Table 9.5, Limb Function – Lower Limb.
Dr Browne, Dr McGill and Dr Cameron assessed a five per cent whole person impairment under Table 9.2, which covers loss of less than half the normal range of movement of the ankle.
Mr Grey contended that Mr Brouwer's lower limb impairment is more appropriately assessed under Table 9.5 at 10 per cent. This rating describes the ability to rise to a standing position and walk, but having difficulty with grades and steps. Professor Ghabrial assesses Mr Brouwer as having a 20 per cent impairment under Table 9.5, which describes being able to rise to a standing position, but having difficulty with grades, steps and distances. On the evidence, the Tribunal finds that Mr Brouwer experiences significant difficulty in the form of pain on walking for extended periods, running, playing soccer or sitting for too long. These symptoms are experienced in his ankle, in the swelling of his leg and numbness around the surgery site around his left knee. The Tribunal accepts evidence that Mr Brouwer took a rest not recorded on the video and that walking for prolonged period on inclines, steps and uneven ground causes him difficulty. The Tribunal also notes specific reference to "paddling" by the physiotherapist and this accords with Mr Brouwer's evidence that his left foot "splays out". Further, Dr Browne noted that it is not surprising that the video does not record any specific difficulties in walking the distance, on the stairs or in his gait, noting that Mr Brouwer's condition is moderate and the video is not able to record such symptoms as the restriction and pain which Mr Brouwer experiences. Limitations are also found in activities such as shopping and running. These effects are not lifestyle effects, the Tribunal finds, but rather direct influences on Mr Brouwer's everyday activities. Further, in relation to the issue of a normal person, in this case, being a male aged 27 years, the Tribunal finds that it is not normal for such a person to experience pain and swelling on prolonged walking and walking up and down stairs and inclines. It is similarly not expected that a normal male aged 27 years would have difficulty playing touch football for more than three or four minutes at a time or that he would experience pain in undertaking normal everyday activities such as shopping or walking to an interview. The Tribunal does not consider that any of the conclusions contained in Comcare v Amorebieta (supra) are inconsistent with this Tribunal's findings in relation to Mr Brouwer.
The Tribunal obtained guidance from Re Morley and Comcare (1996) 40 ALD 725 at page 731, where it was noted that Mr Morley was, prior to his back problems, a fit healthy man, including being Captain of the Army Australian Rules Football team in the late 1980s. After Mr Morley's back problems occurred, he was then unable to walk two kilometres around a lake without experiencing pain and having to use a walking stick. This reduction of activity and experience of symptoms was not considered natural for a man in his forties.
The Tribunal also notes Whittaker v Comcare (supra), in which the Court held that if two tables from the Comcare Guide are applicable, then the decision-maker must assess the degree of permanent impairment under the Table which gives the impaired person the most favourable result. In all the circumstances, the Tribunal determines that Table 9.5 is appropriate for assessing all of Mr Brouwer's lower limb functions and the appropriate rating is 10 per cent. The Tribunal finds that this rating is applicable and not the higher rating of 20 per cent as opined by Professor Ghabrial. The Tribunal does not consider that the evidence provided by Mr Brouwer and other medical opinion supports this higher rating. In all the circumstances then, the Tribunal finds that the appropriate rating for Mr Brouwer's right hand and wrist impairment is 10 per cent under Table 9.4 and 10 per cent for his left leg impairment from Table 9.5 providing a combined impairment under Table 14.1 of 20 per cent.
In all the circumstances and for the reasons set out above, the Tribunal sets aside the decision under review and substitutes its decision that the Respondent is liable to pay compensation to Mr Brouwer under sections 24 and 27 of the Act in respect of a 20 per cent whole person impairment resulting from the injuries under the Act.
The Tribunal remits this matter to the Respondent to calculate Mr Brouwer's entitlement in line with the Tribunal's findings.
It is also decided that the Respondent shall pay the Applicant's costs, pursuant to section 67 of the Act.
I certify that the 107 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member
Signed:         ............[sgnd]..................................................................
  Stella Vaughan, Associate
Dates of Hearing  8 March 2001
9 March 2001
Date of Decision  21 June 2001
Date Final Written Submissions
received by the Tribunal  13 March 2001
Counsel for the Applicant  Mr L T Grey
Solicitor for Applicant  Mr C Hart of Bale Boshev & Associates
Counsel for Respondent  Mr G Johnson
Solicitor for the Respondent  Mr L Forner of Forners, Solicitors and Consultants