Re Nuss and Comcare
[2002] AATA 170
•14 March 2002
DECISION AND REASONS FOR DECISION [2002] AATA 170
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/829
GENERAL ADMINISTRATIVE DIVISION )
Re GARY GEORGE NUSS
Applicant
And COMCARE
Respondent
DECISION
Tribunal Mr R G Kenny, Member
Date14 March 2002
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
.................(Signed)....................
R G Kenny
Member
CATCHWORDS
WORKER'S COMPENSATION –- permanent impairment – left foot injury in course of employment – compensation payments made -– whether impairment to be assessed under Table 9.2 or Table 9.5 of the Guide to the Assessment of the Degree of Permanent Impairment - "difficulty" - difficulty with grades, steps and distances – whether 20% permanent impairment found
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 24, 25, 27
Collins v Repatriation Commission (1994) 33 ALD 557
Comcare v Fiedler [2001] FCA 1810
Re Curtis and Australian Postal Corporation (AAT 10098, 30 March 1995)
Re Holmes and Comcare [2001] AATA 290
Re Johnston and Comcare [2000] AATA 970
Re Mooney and Australian Postal Corporation (AAT 9969, 27 January 1995)
Re Morley and Comcare (1996) 40 ALD 725
Re Peters and Australian Postal Commission (AAT 9680, 23 August 1994)
Re Virtue and Comcare [2001] AATA 974
Re Whelan and Department of Defence (1997) 47 ALD 383
Whittaker vComcare (1998) 86 FCR 532
REASONS FOR DECISION
14 March 2002 Mr R G Kenny, Member
Background
This statement of reasons relates to the hearing by the Administrative Appeals Tribunal (the Tribunal) of an application to review a decision, dated 22 August 2000, of a delegate of the Military Compensation and Rehabilitation Service with the Department of Veterans' Affairs as delegate for Comcare (the respondent). In that decision, the respondent rejected the applicant's claim under the Safety, Rehabilitation and Compensation Act 1988 (the Act) for further compensation payments for his left foot injury.
In evidence was a set of documents (the T Documents), and these included an application for review (T1), received by the Tribunal on 7 September 2000, which contained a statement by the applicant where he set out his reasons for believing that the decision was wrong. Also in evidence was a statement, dated 28 September 2000, by the respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) (T3).
Appearances
The applicant attended the hearing and was represented by Mr A Harding of counsel. Mr C Clarke of counsel appeared on behalf of the respondent.
At the hearing, the following material was taken into evidence from
the applicant:
exhibit 1 – documents prepared in accordance with section 37 of the AAT Act (the T documents: T1 – T43);
exhibit 2 – a statement by the applicant;
exhibit 3 – a statement by the applicant's wife, Mary Nuss; and
exhibit 4 – a report, dated 10 January 2001, from physiotherapist, John Kirwan;
the respondent:
exhibit A - a report, dated 25 October 2001, from Dr Keith Adam, specialist in occupational medicine;
exhibit B – a report, dated 5 April 2000, from Dr Chris Blenkin, orthopaedic surgeon;
exhibit C – a statement, dated 26 February 2002, from Sharon Thorndike, occupational therapist, incorporating clinical notes dated 27 March 2000; and
exhibit D – a letter, dated 13 August 2000, from Phillips Fox, lawyers, to Dr Keith Adam.
Issues and Legislation
It is not disputed that the applicant sustained an injury resulting in permanent impairment to his left foot on 18 August 1996 when his foot was run over by the wheel of a Howitzer gun whilst serving with the Australian Army Reserve. Also, it is not disputed that the respondent has admitted liability and paid, in March 1998, compensation by way of lump sum to the applicant for that injury on the basis of an assessment that the applicant suffered a whole person impairment of 10% as a result of the injury. That compensation was paid in accordance with the terms of sections 24 and 27 of the Act.
By letter dated 13 April 2000, the applicant advised the respondent that he was experiencing continuing difficulties with his left foot and requested a reassessment of his condition. The respondent rejected that claim on the basis that further compensation was not payable because the applicant had not experienced an increase in whole person impairment of 10% since the last assessment.
Compensation for injuries that have resulted in permanent impairment is paid in accordance with Part II of the Act. Once a final assessment of the degree of impairment has been made and compensation paid, further amounts of compensation may be paid under sub-section 25(4) of the Act which reads:
"Where Comcare has made a final assessment of the degree of permanent impairment of an employee, no further amounts of compensation shall be payable to the employee in respect of a subsequent increase in the degree of impairment, unless the increase is 10% or more."
Sub-sections 24(5) and (6) of the Act provide that the degree of permanent impairment is to be determined under the provisions of the Guide to the Assessment of the Degree of Permanent Impairment (the Guide) and expressed as a percentage. The Guide is prepared by Comcare pursuant to sub-section 28(1) of the Act and relevant extracts from the Principles of Assessment read:
"PRINCIPLES OF ASSESSMENT
Impairment and Non-Economic Loss
Impairment means `the loss, 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. Throughout this guide emphasis is given to loss of function as a basis of assessment of impairment and as far as possible objective criteria have been used.
Impairment is measured against its effect on personal efficiency in the `activities of daily living' in comparison with a normal healthy person. The measure of `activities of daily living' is a measure of primary biological and psychosocial function such as standing, moving, feeding and self care.
Non-economic loss, which is assessed in accordance with Part B of the Guide, is a subjective concept of the effects of the impairment on the employee's life. It includes pain and suffering, loss of amenities of life, loss of expectation of life and any other real inconveniences caused by the impairment.
Whilst `activities of daily living' are used to assess impairment they should not be confused with `lifestyle effects' which are used to assess non-economic loss. `Lifestyle effects' are a measure of an individual's mobility and enjoyment of, and participation in, recreation, leisure activities and social relationships. It is emphasised 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 less because of their different lifestyles.The Impairment Tables
Part A of the Guide is based on the concept of `whole person impairment' which is drawn from the American Medical Association's Guides.
Evaluation of a whole person impairment is a medical appraisal of the nature and extent of the effect of an injury or disease on a person's functional capacity and activities of daily living.
As with the American Medical Association's Guides, Part A of this 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. Thus a percentage value can be assigned to an employee's impairment by reference to the relevant description in this guide."
Part A of the Guide comprises groups of Tables describing levels of impairment in particular parts of the body. For each level, an impairment value, expressed as a percentage of whole person impairment, is listed. The relevant components of the Guide in this matter are those which relate to the musculo-skeletal system. These are Tables 9.1 to 9.6. There is an introductory paragraph which appears immediately below the heading of Table 9.1. However, it may well also apply to the other Tables in the grouping: see Whittaker v Comcare (1998) 86 FCR 532 at 539. The introduction reads:
"Introduction - These tables are intended to be used to assess impairment arising from specific joint lesions or amputations. Where the joints function normally but the use of a limb is restricted for other reasons, eg soft tissue injury, nerve injury or bony injury not involving joints, Tables 9.4 or 9.5 should be used. These Tables can be used to assess the impairment of overall limb function from any cause. NOTE: either the musculo-skeletal table or Table 9.4 or 9.5 should be used - not both."
The only Tables of potential relevance in this matter are Table 9.2 and Table 9.5 which read:
"TABLE 9.2
Lower Extremity
(Percentage Whole Person Impairment)
Assessment is in accordance with the range of joint movement. X-rays should not be taken solely for assessment purposes.
% DESCRIPTION OF LEVEL OF IMPAIRMENT
0 X-ray changes but no loss of function of hip, knee or ankleOR
Ankylosis or lesser changes in any toes except the first hallux
5 Loss of less than half normal range of movement of ankle
10 Any ONE of the following:
loss of less than half normal range of movement of hip or knee
loss of half normal range of movement of ankle
ankylosis of first hallux
15 Loss of more than half normal range of movement of ankle
20 Any ONE of the following:
Loss of half normal range of movement of hip or knee
ankylosis of ankle
30 Loss of more than half normal range of movement of hip or knee
40 Ankylosis of hip or knee
NOTES:
1. Where a joint has been surgically replaced assessment is in accordance with its function.
2. Shortening of the lower extremity by 2.5cm or more is an impairment of 5%.
3. For conditions not covered (such as flail joints) the assessment should have regard to the loss of function (not exceeding the maximum allowed for amputation).
4. Values are for one joint only. Where more than one joint is affected, values should be combined using the Combined Values Table (Table 14.1).TABLE 9.5
Limb Function - Lower Limb
(Percentage Whole Person Impairment)
% DESCRIPTION OF LEVEL OF IMPAIRMENT10Can rise to standing position and walk BUT has difficulty with grades and steps
20Can rise to standing position and walk but has difficulty with grades, steps and distances
30Can rise to standing position and walk with difficulty BUT is limited to level surfaces
50 Can rise to standing position and maintain it with difficulty BUT cannot walk
65 Cannot stand or walk".
The respondent has accepted that the applicant has suffered a whole person impairment of 10% under Table 9.5 of the Guide. The issue for the Tribunal is whether or not the applicant has a whole person impairment of at least 20% thereby satisfying the threshold requirement of sub-section 25(4) of the Act for further compensation to be paid to him.
Applicant's evidenceIn his statement (exhibit 2), the applicant described the limitations imposed upon him by his left foot condition. He said that he experiences pain with activity and that this is felt in the ankle joint, across the top of his foot and in a radiating manner upwards into his lower leg. He uses a handrail when negotiating stairs and has increased pain on inclines. He feels pain on walking and this increases the further he walks. It causes him to stop after about one kilometre or even less if he has been undertaking activity previously. He was born on 14 January 1968 and works as a production manager with Dy-mark, which manufactures road-marking materials, and is required to stand and walk at his workplace but is also able to rest and, therefore, his overall work performance is not affected. He avoids activities with his children such as kicking a ball and he has been forced to discontinue his role as a coach of his son's soccer team.
13. In response to questions from Mr Harding, the applicant explained the tests that had been conducted by Dr Keith Adam, specialist in occupational medicine. This involved walking with Dr Adam in the vicinity of Dr Adam's rooms. At one point, they entered a car park and walked up a ramp to the next level. The applicant then walked back down for about ten paces and back to the top of the ramp. He then walked up two sets of stairs before descending them. After that, they left the car park and returned to Dr Adam's rooms. During that circuit, the applicant gradually slowed his pace because of pain, had to stop to rest when climbing the ramp and used the handrail on the steps.
14. In cross-examination, the applicant said that he had walked a total distance with Dr Adam of about 600 to 700 metres. He said that he told Dr Adams that he gets pain in the foot after standing for 60 to 90 minutes but denied telling him that he could walk for a couple of kilometres. He said that the work he does is mainly supervisory in nature although he sometimes does routine maintenance of machines. He said that he would not be able to walk around for an hour and that this has been the case since about mid 2001 when he believed that the symptoms began to worsen.
15. The applicant told Mr Clarke that no tests had been conducted by Dr Robin Jackson, orthopaedic surgeon, when he saw him on 25 May 2000. He agreed that he told Dr Jackson that he had hurt his left leg, but only slightly, early in 2000 in another incident. He also agreed that he told Dr Jackson that he could walk for about one kilometre and could run for about 50 metres. He told Mr Clarke that he could walk about 300 metres without a limp.
16. The applicant said that he had seen Sharon Thorndike, occupational therapist, in early 2000 and that he had told her that, in his work activities, he experienced pain after one to three hours depending on what he was doing: walking, sitting or standing. He denied telling her specifically about walking as the purpose of his visit with her related to getting assistance with lawn mowing.
17. Mr Clarke asked the applicant about the report of Mr Kirwan (exhibit 4). The applicant agreed that he had seen Mr Kirwan in November 2000 and told him that he spent about 60% of his working day sitting down, 20% of it standing and 20% walking. He said that, at work, he walked, on average, about 1.5 hours in the day and for distances of up to 120 metres. He said that he cannot walk briskly for 800 metres but that he may have been able to do so at the time of seeing Dr Kirwan. He agreed that Dr Kirwan had walked with him, first down an incline for about 600 metres, on the flat for about 800 metres, and then up an incline for about 300 metres. After that, he walked up and then down 4 flights of about 12 stairs. He said that he needed to stop briefly after the first walking segment but needed a 5 to 10 minute rest after the second segment. He also said that he thought he had used both hands on the railings when negotiating the stairs.
Evidence of Mary Nuss
18. Mrs Nuss said that she had married the applicant in 1992 and that they had the care of three children. In her statement, she referred to the early years of their marriage and to the active life that the applicant led at that time. This included playing tennis, indoor soccer and taking long bushwalks of up to five kilometres. She said that these activities have been prevented since the foot injury to the applicant in 1996. She also said that there had been a reduction in the extent that the applicant is able to interact socially with the children. She described a recent occasion when the family went for a holiday at the beach. She said that the applicant was not able to participate in beach walks and that she would do so with the two oldest of the children while he would stay back at the camp with the youngest one. She also said that the applicant used to accompany her on shopping excursions but that he ceased this because of pain in his foot. She described one occasion in the preceding six months when he had accompanied her. He had requested that they return home after twenty minutes because of pain.
19. In cross-examination, Mrs Nuss said that she was used to walking at a brisk pace and that the applicant could sustain that prior to the injury in 1996. She said that she does not walk with him at a brisk pace now and she said that the last time she could recall seeing him walking briskly was in 1999 before her youngest child was born. She said that, in the recent shopping trip, he had been walking for about twenty minutes when he advised that the wanted to return home and that they had then walked another five minutes to their car. She described the applicant as having a limp most of the time and that it was sometimes quite pronounced although she agreed that it was sometimes quite slight. In relation to the beach holiday, she said that the discomfort of the applicant on the beach was presented by the soft uneven sand rather than the harder sand near the water.
Medical evidence
Dr Robin Jackson, Orthopaedic Surgeon,
20. Dr Jackson, who said that he had more than 30 years experience in orthopaedic surgery, gave evidence by telephone and was referred to his report, dated 1 June 2000 (T 39), which was prepared after he conducted an assessment of the applicant on 25 May 2000. He also had his clinical notes available to him. Dr Jackson said that the applicant had told him about the history of the foot injury and of its symptoms. Approximately 18 months earlier, he had experienced an increase in the degree of pain in his left foot and ankle with a decrease in mobility and had become aware of a swelling on the anterolateral aspect of his ankle. The applicant had been referred to Dr Blenkin who informed him of the existence of a traumatic ganglion for which Dr Blenkin performed surgery at St Andrews Hospital in February 2000. The applicant told him that the pain in his left ankle and foot had increased in severity since then and that he was aware of pain radiating up into his lower leg and that he had experienced numbness in the third and fourth toes of his left foot. The applicant described the experiencing of pain in his left ankle and foot which was reasonably constant in nature, which varied in severity, which was present at rest and with activity and for which he took analgesic medication, either Panadeine Forte or Mersyndol, in order to decrease the severity of pain.
21. Dr Jackson said that the applicant informed him that he was able to walk for approximately one kilometre and run for approximately 50 metres but that this latter activity exacerbated his pain. He was also told that the applicant was unable to squat, that he experienced difficulty with kneeling and crouching down, negotiating stairs, slopes, hills, rough or uneven ground and that he was unable to mow his lawn. He said that he believed the applicant's symptoms were genuine.
22. Dr Jackson said that he observed the applicant in walking a total distance of about 20 metres and in doing a range of activities. He noted a scar on the antero-lateral aspect of his ankle and a slight antalgic gait on the applicant's left side. He said that the applicant did not appear to experience any difficulty in undressing, redressing or climbing onto or down from the examination couch. He said that straight leg raising was 80° bilaterally and that muscle power was clinically normal. He described a loss of sensation on the dorsum of the left forefoot, extending onto the third and fourth toes. Knee and ankle deep tendon reflexes were symmetrical, plantar reflexes were downwards. His legs were of equal length. Dr Jackson said that he demonstrated an ability to take several steps on his toes, although he experienced considerable difficulty heel walking, was unable to squat down but was able to weight -bear individually on each leg. There was no localised tenderness and no swelling of the ankle joint but there was tenderness noted antero-medially, antero-laterally and in the sub-talar joint. There was some very slight tenderness in the mid-tarsal joints. He exhibited full range of movement at his ankle joint but complained of pain at the outer range of dorsiflexion and plantar flexion. There was a normal range of inversion and eversion movements of his foot and ankle but he complained of pain in his hindfoot and in the mid-foot region. Circulation in his left foot appeared normal.
23. In relation to the applicant's walking of distances, Dr Jackson said that he was of the opinion that the distance of one kilometre that the applicant had given would be the average distance on an average day. He thought that he would be able to walk more on some days but that the maximum distance before he would need to rest would be in the order of 1.5 kilometres. He thought that this could only be done at a brisk pace by the applicant on a "very good day". Dr Jackson confirmed that he did not do any tests with the applicant in relation to walking apart from the 20 metres or so that he observed him in his rooms. He did no tests in relation to grades but was able to observe him rising from a chair.
24. Dr Jackson described the applicant's injury as a crush injury to his left foot and ankle which resulted in permanent impairment and which equated with whole person impairment of 5% under Table 9.2 of the Guide and of 20% under Table 9.5 of the Guide.
John Kirwan, Physiotherapist
25. Mr Kirwan was called by the applicant and said he has practised as a physiotherapist since 1990. He completed his report (exhibit 4) after performing various tests with the applicant on 8 January 2001. He referred to the applicant as having sustained a permanent soft tissue injury to his left ankle complex with the clinical course being one of slow, but ongoing deterioration. He said that he required surgery in February 2000 to remove a painful ganglion from the left lateral malleolus region.
26. In relation to work-related activities, Mr Kirwan said that the applicant had told him his job description could be broken down to:
a. Sitting activities - including administration, computer and managerial tasks which take up approximately 60% of his work day.
b. Standing activities - in the office, mill room and other areas of the work place which take up approximately 20% of his work day.
c. Walking - on average he walks 50 metres to various areas of the work site. The longest distance he is required to walk in the work place is 120 metres. Walking activities involve approximately 20% of his work day.
27. Mr Kirwan said that the applicant gave the following account of the activities that he is able to undertake:
"Walking distances are limited to 1 km on the flat before moderate pain (5/10) and moderate swelling. Last walked 1 km approximately 12 months ago. Walking up inclines is limited to 400m before marked pain (8/10). He last walked up an incline of this distance one week prior to this assessment. Walking down inclines is limited to 600 m before moderate pain (5/10). Last performed one week prior to this assessment. Pushing a rotary mower is limited to 300 m before marked pain and swelling (8/10). Last performed 12 months ago. Mr Nuss has been provided assistance with lawn mowing. Running is limited to 50 m before marked pain (7/10) and swelling. He last ran approximately 18 months ago."
28. Mr Kirwan examined the applicant's foot and noted tenderness and also that there was a full range of movement in the ankle joint. He described the manner in which the applicant was able to carry out various tasks in the following way:
"Walking on flat ground - Mr Nuss was able to walk 800m on level ground at a brisk pace before showing signs of favouring his left ankle due to pain over the left lateral ankle region and pain radiating proximally along the left achilles tendon. He gave a subjective pain score of score of 4/10 during this activity.
Walking down a gradient of 6-10° - Mr Nuss managed to walk down this incline for 600m before experiencing pain which caused him to favour weight bearing on his left ankle. He gave a subjective pain score of 4/10 for this activity.
Walking up a gradient of 6-10 ° - Mr Nuss reported experiencing significant pain in his left ankle and up the left achilles after walking 300m up this gradient.
Stairs - Mr Nuss walked up four flights of stairs, each of approximately 12 steps. He was unable to perform this task without holding on to the rails on both sides of the stairs. He reported a high level of pain (subjective pain score of 9/10) with performing both walking up and down four flights of stairs."
29. In cross-examination, Mr Kirwan said that the first stage of the test involved walking down the incline for 600 metres and that this was followed by a short break of 30 seconds to a minute. The next stage of 800 metres on flat ground was conducted at greater than usual walking pace and was again followed by a short break before walking up the gradient for 300 metres. The applicant then negotiated the stairs and used the handrails for support. Mr Kirwan said that, on completion of these physical tests, an examination of the left ankle did not reveal any swelling although he said that the applicant reported significant tenderness of the left ankle.
Dr Keith Adam, Specialist in Occupational Medicine
30. The respondent called Dr Adam who examined the applicant on 15 October 2001. In his report (exhibit A), he indicated that he had seen, inter alia, the report of Dr Jackson, various reports of Dr Blenkin and a report of occupational therapist Sharon Thorndike. In giving his evidence, he referred to clinical notes he made at the time of his assessment. He referred to the original injury in 1996 as a ligamentous strain and/or tear and also to the subsequent development and surgical removal of a ganglion in February 2000. He said that the applicant reported that the pain had been a bit worse since the surgery, that the pain is aggravated by walking and that, after walking 800 to 900 metres, the pain is "incredible". Dr Adam said he was told by the applicant that he could walk a couple of kilometres, but only at the cost of increased pain. He also said that he gets pain on standing for 90 minutes, is unable to run because of the pain and that, when climbing stairs, he needs to hold the railing.
31. Dr Adam said that he examined the applicant's foot and noted that there was a full range of movement in the ankle and foot. He accompanied the applicant as they walked, at a reasonable pace, a distance of approximately 600 metres around streets near his office and said that he also tested his ability on slopes and stairs in an adjacent car park. He said that the applicant began limping by the end of the walk, and had to stop for a pause before negotiating the slope but that, otherwise, he had no difficulty in negotiating slopes and stairs although he conceded that the applicant was holding the hand railing on the stairs. He said that his usual practice was to follow the same pattern which was to enter the car park, ascend the ramp, watch the examinee ascend and then descend a flight of stairs and then for both of them to descend the stairs to the entry floor before leaving the car park. He said that he believed he had done this with the applicant.
32. Dr Adam noted the criteria contained in Table 9.5 of the Guide and expressed the opinion that, the applicant had 0% whole person impairment under that Table. He also considered Table 9.2 of the Guide and assessed 0% whole person impairment because as he was able to display a full range of movement of the ankle.
33. In cross examination, Dr Adam stated that he had been mindful of the guidelines for the use of Table 9.5 of the Guide (see PT24) when he was assessing the applicant's impairment and that the focus was on whether or not the applicant could complete a particular activity. He also said that, when he conducts an assessment, he always has regard to what would be expected of a normal healthy person. He said that, when he was considering the concept of "difficulty with distance" in Table 9.5, he thought that about 600 metres was a reasonable distance for a person to be able to walk. For "difficulty with grades" and "difficulty with stairs", he said these would not be met if a person could walk up a car park ramp of about 20 metres or a flight of stairs with relative ease.
34. The concluding paragraph of Dr Adam's report reads:
"Given the level of activity that I was able to demonstrate, and noting that in July 2000 Mr Nuss reported to Ms Thorndike that he could walk for one to three hours before needing to rest because of pain, I am unable to see how Mr Jackson was able to assess a disability of 20 percent according to table 9.5."
35. Dr Adam said that he had seen a report of Ms Thorndike and interpreted an entry therein as meaning that the applicant had told her that he was able to walk for one to three hours before he needed to rest due to pain. He treated this as a fact. However, he said that the conclusions he reached about the impairment of the applicant came from his own observations of the applicant as he walked with him. He had been sent the report, along with others noted above, and specifically asked to comment on them. He said that this was the reason that he made reference to Ms Thorndike's report. He identified the letter (exhibit D) which had been sent to him from Phillip Fox, lawyers, requesting that information.
Dr Chris Blenkin, Orthopaedic Surgeon
36. Dr Blenkin, who has practised as an orthopaedic surgeon since 1993 was called by the respondent. He had completed reports on 2 December 1997 (T16), on 20 January 1998 (T17), 20 February 1998 (T25) and 5 April 2000 (exhibit B). He described the initial injury as a chronic strain to the arch and mid foot complex with no evidence of any fracture. In his two 1998 reports, Dr Blenkin allocated a whole person impairment of 0% under Table 9.2 of the Guide and of 10% under Table 9.5 of the Guide. In his latest report, Dr Blenkin said that he would not vary his assessment.
37. In cross-examination, Dr Blenkin confirmed that, in February 2000, he had operated on the applicant's foot to remove a ganglion and said that the assessment he made of impairment was on the basis of his treatment of the applicant over "a couple of years". He said that he had seen no evidence of the applicant limping and said that no bones had been broken in the initial injury. He thought that the applicant experienced pain but that he would be able to walk for "a couple of kilometres". He said that he had applied the guidelines for the use of Table 9.5 of the Guide (see PT24) when he was assessing the applicant's impairment and that the focus was on whether or not the applicant could complete a particular activity. He conceded that a normal healthy person of the applicant's age should be able to walk further than 2 kilometres and perhaps as far as 5 kilometres.
Sharon Thorndike, Occupational Therapist
38. Ms Thorndike assessed the applicant on 27 March 2000 and prepared a report concerning his physical limitations in relation to his capacity to mow his lawn. This is in the T documents at T40. Mr Clarke advised that Ms Thorndike would not be called as a witness because she was in hospital with high blood pressure and awaiting the imminent birth of her child. Mr Clarke also explained that no notice had been given by the respondent that Ms Thorndike was to be made available for cross-examination on the document until the first day of hearing. Mr Clarke advised that recent contact had been made with Ms Thorndike who had made her clinical notes available. He sought to tender a letter, dated 26 February 2002, from Ms Thorndike which identified those notes as those attached to the letter. Mr Harding objected to this procedure on the basis that she was not available to give evidence.
39. In her report in evidence in the T documents, Ms Thorndike included the comment that the applicant "reported he can walk for 1 to 3 hours before he needs to rest due to pain". Mr Harding submitted that the clinical notes did not support the comment made by Ms Thorndike in her report. The Tribunal admitted into evidence, as exhibit C, Ms Thorndike's covering letter and the page of her clinical notes dealing with that matter, noting Mr Harding's submission that it should be given the weight that attaches to unsworn evidence. The relevant clinical note reads:
Mobility/Standing Walking } 1-3 hours – until it hurts
Applicant's submissions
40. Mr Harding made the following submission on behalf of the applicant.
41. The applicant has a permanent injury to his left foot which has resulted in whole person impairment which meets the criteria for 20% under Table 9.5 of the Guide. The condition causes the applicant to have difficulty with grades, steps and distances. It has been conceded that he has difficulty with grades and steps because they equate with the 10% level of impairment. Indeed, in the delegate's decision, it was conceded that the level of difficulty in relation to grades and steps was sufficient to satisfy the 20% level. That concession was not made in relation to distances.
42. The approach taken by Dr Adam and Dr Blenkin was to apply the guidelines which had been sent by Comcare (at T24), which caused them to focus on the question of whether the applicant could complete a task, regardless of pain. This was not the correct approach and is not consistent with the Instructions in the Guide. These require the comparison to be between the applicant and a normal healthy person of the same age which, in this case, is 34 years. The test is not whether a person can perform the activity; rather, the test is whether the person has difficulty with the activity: see Re Morley and Comcare (1996) 40 ALD 725 and Re Whelan and Department of Defence (1997) 47 ALD 383.
43. In relation to the word "difficulty", the following meanings in The Macquarie Dictionary are relevant:
"difficult ... hard to do, perform, or accomplish; not easy; requiring much effort ...
difficulty ... the fact or condition of being difficult ...".
44. A person may complete a task but find it hard to do, not easy or requiring much effort and this may well be because of pain. In those situations, the person is experiencing difficulty with the task. Difficulty must be more than minimal limitation but it does not need to be severe or a substantial limitation: see Comcare v Fiedler [2001] FCA 1810. The reason that a person might find a task hard to do can be caused by pain: see Re Curtis and Australian Postal Corporation (AAT 10098, 30 March 1995) and Re Mooney and Australian Postal Corporation (AAT 9969, 27 January 1995).
45. The evidence shows that the applicant is not performing activities in a way that a normal healthy person does. Dr Blenkin conceded that a such a person would be able to walk five kiolometres and would not have trouble playing with his children. The evidence of Mrs Nuss comfirms that the applicant has limitations on his ability to walk distances and the evidence of Dr Adam and Mr Kirwan also is that the applicant displayed symptoms to them. Reliance should be placed on the evidence of Dr Jackson who did have an opportunity for some objective assessment of the applicant's symptoms and who said that he believed the applicant to be genuine in his presentation.
46. The Tribunal should also apply an interpretation to the words in the impairment table which most favours the applicant: see Whittaker v Comcare (1998) 86 FCR 532.
47. Reliance should not be placed on the report of Ms Thorndike where she said the applicant reported that he is able to walk for one to three hours as that record is not consistent with the wording of her clinical notes in exhibit C. The entry in the notes makes it clear that the reference to "1 – 3 hours" is for the combination of mobility, standing and walking.
48. On the evidence, a rating lower that 20% may be applicable under Table 9.2 of the Guide but that does not mean that a higher rating can not be allocated and adopted under Table 9.5: see Collins v Repatriation Commission (1994) 33 ALD 557. The higher of the two ratings is to be adopted.
Respondent's Submissions
49. Mr Clarke made the following submissions on behalf of the respondent.
50. A precondition to the use of a more favourable interpretation is that there are, in fact, two interpretations open. That is not the case on the evidence. There is no justification for taking as a benchmark a person who can walk five kilometres. Mr Kirwan stated that, in his view, 600 metres was a reasonable distance and the applicant was able to walk that far. Dr Adam applied his regular routine to the applicant and he was able to achieve the distance asked of him. Dr Blenkin expressed the opinion that the applicant could walk "a couple of kilometres". Mr Kirwan accompanied the applicant for a distance of 1.7 kilometres, some of it at a brisk pace. There were breaks in that routine with some dispute about the length of those breaks.
51. In Re Johnston and Comcare [2000] AATA 970, the Tribunal found that the ability to walk distances of two kilometres before experiencing pain did not amount to a difficulty for the purposes of Table 9.5 of the Guide. The applicant is in a similar position.
52. Dr Jackson reached his conclusion of 20% under Table 9.5 without really "putting the applicant through his paces". He observed him in his rooms and not over any distance, unlike Dr Adam or Mr Kirwan whose objective assessments should be preferred: see Re Curtis and Australian Postal Corporation (AAT 10098, 30 March 1995) at par 55 and Re Virtue and Comcare [2001] AATA 974.
53. Further, the rating given by Dr Jackson under Table 9.2 of 5% percent is at odds with the rating he allocated under Table 9.5. There should be relativity between the ratings selected for Tables 9.2 and 9.5: see Curtis (above) at par 54.
54. On the objective assessments of Dr Adam and Mr Kirwan, and on the assessment of Dr Blenkin, the applicant does not have difficulty with distance and a rating of 20% under Table 9.5 of the Guide is not appropriate.
Discussion of Evidence and Findings of Fact
55. The applicant suffered an injury in 1996 and, in the evidence before the Tribunal, this has been variously described as a crush injury to his left foot and ankle (Dr Jackson), a soft tissue injury to his left ankle complex (Mr Kirwan), a ligamentous strain and/or tear (Dr Adam) and a chronic strain to the arch and mid foot complex (Dr Blenkin). It is not in dispute, and the Tribunal finds, that the applicant experiences symptoms from the injury and that the injury is permanent.
56. In Whittaker v Comcare (above), the Full Federal Court dealt with a special case referred to it by the Tribunal involving the interpretation to be applied to the respective ambits and applications of Tables 9.2 and 9.5 of the Guide. The Court held that Table 9.5 can be used for the assessment of the degree of permanent impairment resulting from injury to any part of the lower limb, including to any part of a joint. It also held that Table 9.2 can be used to assess the degree of permanent impairment resulting from injury to a joint in the lower limb irrespective of whether the structures of the joint injured are limited to non-bony elements, but only where the assessment under Table 9.2 results in a higher degree of impairment than would an assessment under Table 9.5. Additionally, the Court held that, if both Table 9.2 and Table 9.5 are capable of being used for the purpose of assessing the level of impairment resulting from soft tissue injury involving a joint, the decision-maker must assess the degree of permanent impairment under whichever one of Tables 9.2 or 9.5 which yields the more favourable result to the employee.
57. The evidence of Dr Jackson, Mr Kirwan and Dr Adam is, and the Tribunal finds, that the applicant has a full range of movement in the ankle joint. On that basis, the Tribunal is reasonably satisfied that an impairment no higher than 5% can be allocated for whole person impairment under Table 9.2 of the Guide.
58. Before turning to Table 9.5 of the Guide, the Tribunal notes Mr Clarke's submission on the need for a degree of parity between the ratings under Table 9.2 and Table 9.5 of the Guide. However, nowhere in the Guide is this a requirement and the parameters of activity described in the two Tables are very different. It appears to the Tribunal that no inconsistency would necessarily arise when an injury yields a low assessment under Table 9.2 because of the lack of movement loss and a high assessment under Table 9.5 because of problems that arise on weight-bearing: see Whittaker v Comcare (above) at 63.
59. To meet the threshold of 20% under Table 9.5 of the Guide, the applicant must be able to rise to a standing position and walk but have difficulty with grades, steps and distances. Clearly he can rise to stand and can walk; but, does he have "difficulty with grades, steps and distances"? No guidance is given in the Guide as to meaning of the terms used in that phrase. The concepts of steps and grades are not difficult to understand although no guidance is given on the number of steps or the degree of gradient that are to be considered. As to the term "difficulty", Mr Harding referred to the Macquarie Dictionary meaning and that approach was utilised in the Full Federal Court in Comcare v Fiedler [2001] FCA 1810. There, the Court considered the phrase "difficulty with digital dexterity" as it is used in Table 9.4 of the Guide. The Court rejected the view expressed in earlier Tribunal cases that "difficulty with digital dexterity" would only arise where that difficulty is "very severe" (see Re Peters and Australian Postal Commission (AAT 9680, 23 August 1994) or "very significant or substantial" (see Re Holmes and Comcare [2001] AATA 290). The Court said:
"22. ….The word "difficulty", like most ordinary English words, has no fixed meaning but is….. a word capable of covering a broad spectrum of restriction and disability in the context of a phrase such as "difficulty with digital dexterity" in Table 9.4. According to the Macquarie Dictionary, 3rd ed, "difficulty" connotes a range of conditions from being "not easy", to being "hard to do", to "requiring much effort". According to the Oxford English Dictionary, 2nd ed, it connotes notions of not being easy, of requiring effort or labour, of being troublesome or hard to do, perform or carry out. An injury that leaves a person in the position of requiring much effort to perform tasks calling for digital dexterity involves a markedly more serious impairment than does an injury which makes it not easy or troublesome for a person to perform such tasks.
23. Something more than minimal problems with digital dexterity is required. But if a person, as a result of his injury, finds it troublesome or not easy to do tasks requiring digital dexterity, that will, adopting the approach to interpretation required by Whittaker v Comcare (1998) 86 FCR 532 at 544 - 545, justify a 10% impairment assessment under paragraph 1 of Table 9.4. …
25. The Tribunal, having correctly rejected the interpretation placed on the phrase in Table 9.4 in Holmes and Peters, appears to have applied an interpretation to this effect to the facts of the case as found by it then it concluded that the respondent "clearly has difficulty with digital dexterity in both hands and, indeed, substantial difficulty with digital dexterity with his right hand". There is no reason to think the Tribunal considered that any difficulty with digital dexterity, no matter how slight, was sufficient to come within par 1 of Table 9.4."
60. Applying that interpretation to Table 9.5 of the Guide, the applicant will have difficulty if he finds it troublesome or not easy to negotiate distances. The limitation need not be significant or substantial but it must be more than slight or minimal. The factor(s) which are responsible for giving rise to the walking difficulty will need to be considered. In Re Mooney and Australian Postal Corporation (above) at par 34, the Tribunal found that "experiencing pain amounts to difficulty in that it makes the function of walking harder to perform". The Tribunal accepts the submission of Mr Harding that pain may be taken into account as the source of difficulty in performing an activity: see also Re Curtis and Australian Postal Corporation (above) at paragraph 55 and Re Whelan and Department of Defence (1997) 47 ALD 383 at 401.
61. Table 9.5 of the Guide provides no guidance on what is meant by the term distance. However, the Principles of Assessment (see paragraph 8 above) provide that impairment is measured against its effect on personal efficiency in the "activities of daily living" in comparison with a normal healthy person. In the context of that overall Principle, the distances to be considered for Table 9.5 of the Guide are those that are expected to be traversed by a normal healthy person and, for the basis of comparison, this would need to be a male person of the same age as the applicant. This was the approach adopted in the Tribunal decisions of Re Whelan and Department of Defence (1997) 47 ALD 383 at 399 and Re Morley and Comcare (1996) 40 ALD 725 at 731.
62. The applicant is in his early thirties and Dr Blenkin, in his evidence, conceded that such a person would be able to walk two and perhaps as far as five kilometres without difficulty. Dr Adam expressed the opinion that "about 600 metres" was a reasonable distance for a person to be able to walk and Dr Jackson gave no opinion on the matter. Neither did Mr Kirwan. The Tribunal considers Dr Adam's estimate to be a significant understatement of walkability for a healthy 34 year old although, of course, it may be a satisfactory testing distance in circumstances where a person was not able to walk that far without difficulty. The Tribunal is not in a position where it can make findings on what are the upper limits of the walking ability of a normal healthy male person of the applicant's age and without his foot condition. However, it would be surprising if such a person were not able to walk a distance in the order of one to two kilometres without finding it troublesome.
63. In assessing the applicant's capacity to walk a distance, Dr Adam and Mr Kirwan both had the advantage of observing the applicant as he walked over some hundreds of metres. Dr Adam accompanied the applicant as they walked a distance of approximately 600 metres and he said that the applicant began limping by the end of the walk and had to stop for a pause before negotiating a slope. Dr Adam was concerned with whether or not the applicant was able to walk a distance but also made a comparison with the capabilities of a normal healthy person. The Tribunal interprets his evidence as showing that nothing more than a slight difficulty was displayed by the applicant in his test. Certainly, Dr Adam's direct observations do not even approach the applicant's reference to him that the pain in his ankle is "incredible" after 800 to 900 metres. The Tribunal also accepts Dr Adam's evidence that he reached his conclusion of the applicant's walking ability on the basis of what the applicant demonstrated in the test rather than on the basis of the report of Ms Thorndike. The applicant denied telling Dr Adam that he could walk "a couple of kilometres" but the Tribunal prefers the evidence of Dr Adam on that matter. His report was an objective assessment based on his observations and recorded in his clinical notes.
64. Mr Kirwan walked with the applicant for some 1.7 kilometres comprising 600 metres down an incline and then, at a brisk pace, for 800 metres on level ground before the applicant began showing signs of favouring his left ankle due to pain. This was followed by a further 300 metres up an incline. Mr Kirwan said that, between the segments, there was a break of 30 seconds to a minute. The applicant denied that he walked at a brisk pace and also differed in his account of the length of the breaks. Mr Kirwan had his clinical notes to assist him and the Tribunal accepts as correct his description of the brisk nature of the walking exercise and the lengths of the breaks between segments. The description by Mr Kirwan of the applicant during the test does not suggest that the applicant found it troublesome.
65. Dr Jackson did not observe the applicant walking over a distance above a few metres but, nonetheless, concluded that the applicant had difficulty with distances. The applicant told him that he could walk for a kilometre. Clearly, that is not correct as demonstrated by the distances the applicant was able to walk with Dr Adam. Dr Jackson considered that he could walk 1.5 kilometres and that this could be done at a brisk pace if the applicant was having a "good day". Indeed, the applicant was able to walk further than that estimate with Mr Kirwan.
66. Dr Blenkin's evidence was not based on personal observation of the applicant in walking a distance but he expressed an opinion, which was based on his treatment of the applicant over some years, of the applicant's walking ability. He said that he would be able to walk a "couple of kilometres".
67. Mrs Nuss said that she and the applicant had been walking for about twenty minutes on a recent shopping trip when he advised that he wanted to return home and that they had then walked another five minutes to their car. She also said that, during a recent beach holiday, he would stay in the camp rather than walk along the beach. She said that the applicant had problems on the beach in the soft uneven sand rather than the harder sand near the water. Given the capacity to walk for 25 minutes on the shopping trip and the distances that the applicant was clearly able to walk with Dr Adam and Mr Kirwan, the Tribunal does not accept Mrs Nuss' evidence that the applicant was not able to walk a distance on the firm part of the beach.
68. There are also inconsistencies in the applicant's evidence. In cross-examination, he told Mr Clarke that he could walk about 300 metres before began to limp. The evidence of Mr Kirwan and Dr Adam was that he was able to walk significantly further than that without a limp. He also denied the ability to walk at a brisk pace. But the evidence of Dr Adam was that he could and did walk briskly for some 800 metres. Mr Kirwan described the pace at which he walked with the applicant as being "reasonable". The Tribunal does not accept the evidence of the applicant in relation to his own limitations. Reference has been made to the report (T40) and clinical notes (exhibit C) of Ms Thorndike. The report suggests that the applicant stated that he could walk for one to three hours. The clinical note supports the interpretation advanced by Mr Harding that the reference of one to three hours was for the combined activities of mobility, standing and walking. Even so, it points to a greater duration than was admitted to by the applicant. Even if one-third of that time was spent in walking, the applicant would be manifesting a capacity to walk a distance.
69. The Tribunal is reasonably satisfied that the limitations that the applicant experiences in his capacity to walk a distance constitute no more than a slight degree of difficulty and that the walking of a distance cannot be described as troublesome to him or as being not easy for him, in the sense that those phrases are used in Comcare v Fiedler (above). This means that the applicant does not have difficulty with distances within the meaning of Table 9.5 of the Guide. It follows that one of the necessary elements of the 20% whole person impairment level in Table 9.5 of the Guide is not met and the Tribunal is reasonably satisfied that an impairment no higher than 10% can be allocated for whole person impairment under that Table.
Decision
70. The Tribunal affirms the decision under review.
I certify that the 70 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member
Signed: .....................................................................................
AssociateDate of Decision 14 March 2002
Date of Hearing 27 February 2002
Counsel for Applicant Mr A Harding
Solicitor for Applicant Gilshenan & Luton
Counsel for Respondent Mr C Clarke
Solicitor for Respondent Phillips Fox
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