Re Watkins and Comcare
[2002] AATA 613
•26 July 2002
DECISION AND REASONS FOR DECISION [2002] AATA 613
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/646
GENERAL ADMINISTRATIVE DIVISION )
Re ANTHONY JAMES WATKINS
Applicant
And COMCARE
Respondent
DECISION
Tribunal Mr R G Kenny, Member
Date26 July 2002
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and substitutes its decision that: (i) the respondent is liable to pay compensation to the applicant under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act1988 in respect of 20% whole person impairment; (ii) the matter is remitted to the respondent to calculate the applicant's entitlement in accordance with those provisions; and (iii) the respondent shall pay the applicant's costs pursuant to the General Practice Direction.
....................(Sgd).....................
R G Kenny
Member
CATCHWORDS
WORKER'S COMPENSATION – permanent impairment – right ankle injury in course of employment – 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 10% or 20% permanent impairment found
Safety, Rehabilitation and Compensation Act 1988 sections 24, 27, 28
Re Brouwer and Australian Postal Corporation [2001] AATA 570
Comcare v Amorebieta [1994] FCA 312
Comcare v Fiedler [2001] FCA 1810
Comcare v Ticsay (1992) 38 FCR 181
Re Curtis and Australian Postal Corporation (AAT 10098, 30 March 1995)
Re Haugh and Comcare [1999] AATA 906
Re Holmes and Comcare [2001] AATA 290
Re Jones and Department of Defence (AAT 13357, 8 October 1998)
Re Peters and Australian Postal Commission (AAT 9680, 23 August 1994)
PublicTransport Commission (NSW) v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336
Re Mooney and Australian Postal Corporation (AAT 9969, 27 January 1995)
Re Morley and Comcare (1996) 40 ALD 725
Re Whelan and Department of Defence (1996) 47 ALD 383
Thiele v Commonwealth (1990) 22 FCR 342
Whittaker v Comcare (1998) 28 AAR 55
Wilson v Wilson's Tile Works Ltd (1960) 104 CLR 328
REASONS FOR DECISION
26 July 2002 Mr R G Kenny, Member
Application
On 12 July 2001, a delegate of the Military Compensation and Rehabilitation Service with the Department of Veterans' Affairs as delegate for Comcare (the respondent) rejected the claim of Anthony James Watkins (the applicant) under the Safety, Rehabilitation and Compensation Act 1988 (the Act) for compensation payments for his right ankle injury. That decision affirmed a previous delegate's decision dated 23 February 2001. On 26 July 2001, the applicant lodged an application for review of the decision by the Administrative Appeals Tribunal (the Tribunal).
The applicant attended the hearing and was represented by Mr G Perry of counsel. The respondent was represented by Ms E Ford of counsel. In evidence were the T documents (T1-T43) (exhibit 1) and the following:
Exhibit A1 - a statement of facts and contentions from the applicant;
Exhibit A2 - extracts from the applicant's army medical records;
Exhibit A3 - extracts from the applicant's army personnel file;
Exhibit A4 - a medical report, dated 27 April 2002, from Dr Alan Searle, consultant orthopaedic surgeon;
Exhibit R1 - a medical report, dated 29 November 2001, from Dr Keith Adam, specialist in occupational medicine; and
Exhibit R2 - a statement of facts and contentions from the respondent;
Issues and Legislation
It is not disputed that the applicant, who was born on 7 April 1968, sustained an injury resulting in permanent impairment to his right ankle on 18 September 1992 when he stepped on a tree limb after alighting from a truck during a training exercise at night whilst he was serving with the Australian Army Reserve.
Also, it is not disputed that the respondent, on 28 July 1993, admitted liability for the applicant's sprained right ankle - medial and lateral ligaments.
On 25 July 2000, the applicant lodged a claim for compensation for permanent impairment and this was rejected in the respondent's decisions noted above.
Compensation for injuries that have resulted in permanent impairment is paid in accordance with Part II of the Act, and sections 24 and 27 thereof read:
"24 Compensation for injuries resulting in permanent impairment
(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%, an amount of compensation is not payable to the employee under this section.
(8) Subsection (7) does not apply to any one or more of the following:
(a) the impairment constituted by the loss, or the loss of the use, of a finger;
(b) the impairment constituted by the loss, or the loss of the use, of a toe;
(c the impairment constituted by the loss of the sense of taste;
(d) the impairment constituted by the loss of the sense of smell.
(9) For the purposes of this section, the maximum amount is $80,000.
27 Compensation for non-economic loss
(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.
(2) The amount of compensation is an amount assessed by Comcare under the formula:
($15,000 x A) + ($15,000 x B)
where:
A is the percentage finally determined by Comcare under section 24 to be the degree of permanent impairment of the employee; and
B is the percentage determined by Comcare under the approved Guide to be the degree of non-economic loss suffered by the employee."
Sub-section 24(5) of the Act provides that the degree of permanent impairment is to be determined under the provisions of the Guide which is the Guide to the Assessment of the Degree of Permanent Impairment as prepared by Comcare pursuant to sub-section 28(1) of the Act. Relevant extracts from the Principles of Assessment in the Guide 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 loss 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) 28 AAR 55 at 64-65. 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:
1Where 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
50Can rise to standing position and maintain it with difficulty but cannot walk
65 Cannot stand or walk".
10. The issue for the Tribunal is the determination of the percentage whole person impairment in the applicant. It is noted that there must be at least a 10% whole person impairment in order to satisfy the threshold requirement of sub-section 25(7) of the Act for compensation to be paid to the applicant.
Applicant's Evidence
11. The applicant gave the following evidence.
12. He left school in 1982 and worked in the Casino area of New South Wales as a labourer in the timber and mining industries and in a smallgoods factory before travelling around Australia and undertaking casual gold-mining work in Western Australia. He returned to the Casino area where he worked as a farm labourer and, once again, in the smallgoods industry. He joined the Army Reserves in 1983. He is still a serving member and is required to do a minimum of 25 days service per year but has done substantially more than that in each year except for 1992 when he was travelling around Australia.
13. From 1993 to 1995, he undertook casual employment in a bar at Tattersall's Hotel in Casino. He could be called upon to work from 18 to 20 hours per week but his average amount of working was 12 hours per week. His job involved cellar work, including the tapping of kegs and the cleaning of lines. He was responsible for opening the place at times and would clean the drinking areas and also, at times, serve behind the bar. Kegs had to be moved over distances of some 10 to 12 metres but this was done on a trolley. The shifts that he worked varied in length and, typically, he would start at around 5.30 pm and work until 8.30 pm or later, sometimes 11.00 pm. He was always in the company of at least two other workers and was able to take a break from work as needed.
14. In 1996, he commenced a period of about 18 months as a storeman and delivery worker in wholesale food distribution for Coffs Providores in Coffs Harbour. His duties included warehousing of deliveries and checking stock. For about half the day, he would be involved in manual movement of grocery items and for the other half of the day he would operate a forklift. He then moved to Countrywide Providores in Brisbane as the manager of a warehouse involved in distribution of foodstuffs where the work involved much less physical effort on his part. He was involved in the manual handling of packages and tins for some 2 to 3 hours per day, mainly moving them short distances from large pallets to containers for a forklift to relocate them. He worked in that capacity for about 14 months.
15. In May 2001, he moved to Gympie where he worked for 3 months in careers advisory work with Skilled Centre Regional Employment Agency as a recruitment officer from which position he was retrenched in August 2001 due to company restructuring. He lived in Gympie for about 12 months and, during that period when he was not working in Gympie, he was able to fulfil his commitment of 100 days per year with the Army Reserves by working at the Edward Street Recruitment Centre in Brisbane. At times, he travelled to and from Brisbane in the one day which involved up to 4 hours of driving and, on other occasions, he stayed with a friend at Easton Park.
16. He then moved, in March or April 2002, to Shelley Beach in Caloundra where he understood that the Army would be opening a recruitment centre. While waiting for that to eventuate, he commenced, about a week before the hearing, a full-time job at Mitchelton in Brisbane, an hour's drive from his home.
17. In relation to his injury, the applicant said that, initially, he carried out the duties of an infantry soldier with the 41st Royal New South Wales Regiment and it was whilst undertaking an exercise in that capacity that he first injured his ankle in 1992.
18. In September 1992, he was involved in a night training exercise dressed in full military uniform and was carrying his field equipment pack which weighed some 40 to 50 kilograms. Whilst moving through the bush, his ankle rolled out as he walked on a tree limb and he fell to the ground. He was in pain and was carried out by others with the use of a stretcher and was taken to Grafton Base Hospital. He was given pain killers and returned the next day for x-rays to be taken. He said that the pain has stayed with him until the present. The next day, the ankle was swollen and discoloured and he was on crutches for some months. He had stayed with the unit over the next 3 to 4 days to complete the course but remained in the central position where he could rest. On 20 September 1992, he made a claim for compensation for loss of training days and for medical expenses.
19. Towards the end of 1992, he resumed further days of service with the Reserves and had a further "roll out" ankle experience on 27 April 1993 in Nelson Bay during another Army exercise. Again, he was placed on restricted duties and he had continuing physiotherapy treatment. On 11 September 1993, he was undertaking another course at Holsworthy and experienced a further "roll out" of his ankle. He was taken to hospital where x-rays were taken and again was on crutches for a period.
20. He has seen several orthopaedic specialists including Dr John Ashwell who performed surgery on the ankle in 1995 after which he experienced numbness and feelings of "pins and needles" and gained no overall benefit.
21. He began to experience problems with his efficiency in the Army because of his right ankle and was advised in July 1995 that he was not reaching the required fitness thresholds which required him to complete a 5 kilometre run. He was excused from infantry training and began to undertake clerical and career advisory work which mainly saw him involved in desk duties. Officially, this began in August 2002 but, unofficially, it had commenced earlier. He had not been permitted to undergo marching from September 1993. From late 1998, he had mainly been involved in career advisory work and, in the year 1999-2000, had served some 60 to 65 days in that capacity. In 2000-2001, he did so for some 70 days and, in 2001-2002, he did so for some 100 days.
22. He had no problems with his ankle prior to the initial injury in 1992 and, since then, pain has been constant and severe at times. He also gets stiffness and swelling in the joint. He used to be involved in marching distances of more than 15 kilometres or running up to 5 kilometres in "full kit" and completing obstacle courses as part of his general training but has been unable to do those things since 1992. He feels pain during and after walking. Sometimes, this is after only 50 to 100 metres; sometimes, it can be after 500 metres to a kilometre. He has problems on uneven ground and pain comes on more quickly when he walks up a hill. He is able to negotiate stairs and feels pain when doing so but does not use a handrail for assistance. He can experience a "roll out" of his ankle on, perhaps, a monthly basis. He does not like taking medication and only uses the occasional pain killer but mainly relies upon a TENS machine, 4 to 5 times per week, to assist him.
23. Because of his ankle injury, he has been forced to discontinue leisure activities such as playing touch football, pig shooting expeditions and martial arts exercises that he enjoyed with his friends on 2 to 3 occasions per week. He sleeps well but experiences problems with his ankle if he drives a vehicle for more than 2 to 3 hours. He uses an aerobic walker to help him retain fitness and this involves swinging his arms and sliding his feet and he does this for 5 to 8 minutes on 2 or 3 occasions per week. He also involves himself in gardening and sometimes walks to the beach, which is about 200 metres from his house, and then a few hundred metres on the pathway in either a northerly or southerly direction. He said that he wears an ankle support when walking and that this assists him.
24. He sometimes walks into the Caloundra shopping centre which takes him up to 15 minutes. He was not able to estimate the distance of this walk but said that it involves him in walking up a hill which is reasonably steep. He feels pain during these walks. He was asked by Ms Ford whether, when he was walking home from the shopping area of Caloundra or when walking up the hill on the way to the shopping centre, an observer would be aware of his problem with his ankle. He said that they would not know because it was all internal pain that he was feeling and that it would not be noted because he does not display signs such as limping.
25. The applicant had physiotherapy treatment, in 1995, from Mr Ross Baines who put him through a program of exercises involving hopping and running. He had seen Mr Baines on 4 or 5 occasions and the program involved having a massage of his ankle and then going through strengthening exercises. He would move through a run-dodge-weave exercise over about 100 metres in a figure 8 configuration. He attempted it on 2 occasions in his own time on a local playing field. It caused him pain. He was able to run the 100 metres but felt that his ankle was unstable. Rather than running to maintain fitness, he preferred to use elastic ropes for exercising and a rocker board which was a device like a small see-saw as well as his aerobic walker.
26. He recalled telling orthopaedic surgeon Dr Peter Berton that he had a full range of movement in the ankle and that he was coping well and he agreed with the medical report prepared on 11 September 1993, after a further "roll out" incident with his ankle, that he had a full range of movement. However, he said that he had pain on movement of the ankle. He said that he could not recall telling orthopaedic surgeon Dr Ray Randle that he had a full range of movement in his ankle.
27. The applicant was referred to a medical report from his treating medical practitioner, Dr Aldo Castagna, dated 14 October 1996 (T21), which stated that he was not able to partake in running or jogging but was able to walk though not too briskly. The applicant said that this was in relation to a clerical administration course that he was undertaking with the Army. He still did some physical training in that he was able to walk at his own pace but he was not required to take part in marching.
28. The applicant was referred to a medical report from Dr Berton, dated 18 December 1997 (T5), where Dr Berton indicated that he would like to apply for the applicant to undergo an arthroscopy of his ankle. This procedure has not been done and the applicant said that he believed it depended upon whether or not the Defence Force was willing to agree to it and he was not aware that that agreement had been given. He also said that, in any event, he preferred to treat the ankle with the "RICE" regime which means rest, ice, compression and elevation rather than with a procedure which may not assist him.
29. The applicant said he had not undergone any examination by Commonwealth medical officer Dr Peter Grant.
30. The applicant was referred to a report, dated 17 February 2000 (T28), from musculoskeletal physician, Dr Peter Jackson, where it is recorded that he cannot run and can only ambulate a couple of hundred metres at a time. The applicant agreed that he can run and that he can walk further than that distance but that he experiences pain on doing so. He also agreed that, in a situation such as his car breaking down in a remote location, he would be able to walk kilometres if he had to and that that applied equally to his situation in 1996. He added that it would be necessary, in such a case, to use the TENS machine after such a walk because he would be in pain.
31. The applicant agreed that he had told Dr Alan Searle, consultant orthopaedic surgeon and certified MACA specialist, who prepared a report dated 27 April 2002 (exhibit A4), that he could walk from ½ kilometre to 2 kilometres. He also agreed that, in an Army medical board in May 1993, he had stated that he could walk 3 kilometres. However, again, he said that he would experience pain during and after such walks and would need to use his TENS machine to relieve the pain.
Medical Evidence
32. In September 1993, the applicant was referred by Dr Castagna to Orthopaedic Surgeon, Dr Peter Berton. In a report, dated 16 February 1994 (T7), Dr Berton reported that there had been no improvement in the ankle but he observed that there did not appear to be any instability. He said that he thought the applicant would require a reconstruction of his lateral ligament which would involve 8 weeks in plaster and a further 8 weeks of intensive physiotherapy before being remotely back to normal. In another report, dated 20 May 1994 (T8), Dr Berton referred to the lack of improvement and the need for an arthroscopy to be conducted.
33. In January 1995, the applicant was referred to another orthopaedic surgeon, Dr Ray Randle, who prepared a report on 27 January 1995 (T12). Dr Randle reported:
"On examination there is no swelling and there is no deformity today. There is tenderness over the fibula attachment of the anterior talo fibula ligament, there is no other tenderness, he has a full range movement in the ankle joint, all his ligaments are stable and equal when stressed to the left side, he has no pain when stressing the anterior talo fibula ligament …
I think Anthony has a strain of the anterior talo fibula ligament. I do not think this would be helped by surgery and I think he needs to try some more physio."
34. The physiotherapist that the applicant saw at that time was Mr Ross Baines. In a report, dated 24 March 1995 (T13), Mr Baines described how he had advanced the applicant through a programme of exercises to work eventually on a "demanding hopping and running program". He said that the applicant completed this without any sign of joint irritation. He said that the applicant agreed that he had made significant progress through the physiotherapy but also that he complained of some deep ankle pain when running.
35. In June 1995, the applicant was referred to an orthopaedic surgeon, Dr John Ashwell, who prepared a report on 29 June 1995 (T14). In his report, Dr Ashwell said:
"On examining him today there was slight loss of plantar flexion but full dorsiflexion. There was full subtalar and midtarsal joint movement. There was no clinical evidence of instability. He had marked tenderness around the anterior talo-fibula area and also along the tibio-fibula syndesmosis. He had x-rays of both ankles with stress views dated 26.11.93 which showed some irregularity around the tip of the medial malleolus and postero-lateral aspect of the lateral malleolus. CT scan 30.11.93 was essentially normal.
Stress views were only a varus strain and could not demonstrate instability.
His problems appear to be due to chronic lateral ligament injury with impingement in the talo-fibula area. I have recommended repeating the stress views to include an AP pull on the foot and if these are normal I will proceed to exploring the antero-lateral aspect of his ankle joint to inspect the joint and clean out the scar tissue between the talus and fibula. I advised him this should help his discomfort but will not be a complete cure."
36. In July 1995, Dr Ashwell conducted a surgical procedure on the applicant's ankle and referred him to further physiotherapy treatment with Sally Cusick. A report from Ms Cusick, dated 9 January 1996 (T17), referred to the applicant as having regained full movement but with no diminution of his pain. However, she said that a trial TENS treatment had significantly relieved his pain for a few hours afterwards.
37. On 8 February 1996 (T18), Dr Ashwell reported that the applicant had almost full ankle movement although he noted that there was mild crepitus on the lateral side with rotation of his ankle. He described the joint as being clinically stable and to the applicant as having "minor restriction and difficulty with uneven ground" but said that he should be able to cope with most of his activities.
38. On 6 June 1996 (T19), Dr Berton provided a further report. Dr Berton stated that the applicant had full ankle movement and that the subtalar movement was good as was midtarsal movement. He could not detect any significant laxity and entered a final diagnosis of impingement syndrome ankle with possible reflex sympathetic dystrophy. He continued:
"I believe that historically as a result of his accident with the armed services he suffered an inversion injury to his ankle. He suffered a recognised though rare complication of inversion injury in the form of impingement syndrome secondary to scar tissue deposition over the ankle. This was managed by investigation to exclude talar dome fracture and significant ligamentous laxity and ultimately by Dr Ashwell in the form of exploration and synovial clearance. He has made an incomplete recovery from this. The expected recovery in 80% of individuals following surgery of this type performed by Dr Ashwell is that in approximately 80% of people the ankle will basically become asymptomatic which has not been the case in this situation. There exists possible causes for this in the form of reflex sympathetic dystrophy. This is a condition characterised by episodic colour change and abnormal pain and sensation owing to problems with the small nerves innovation to the area. To adequately confirm this diagnosis and treat this requires review by an anaesthetist specialised in pain management techniques. In addition there exists the possibility that an occult talar dome fracture still exists and the gold standard modality for imaging this is an MRI scan. The third possibility is that residual symptoms are as a result of low grade inflammation of the residual lateral ligament and anterior fibres of the tibio-fibular ligament. I believe at this point of time although he would appear to have stabilised that with further intervention his symptom profile could be improved."
39. Dr Ashwell again reported on 7 July 1997 (T24), stating that the applicant had full ankle movement, midtarsal and subtalar joint movement. He noted that there was tenderness on the antero-lateral aspect of the ankle and that an MRI on 11 April 1997 had revealed signs of previous trauma and a small effusion. He said there was evidence of chronic ligament injury to his right ankle and he recommended continuation of the use of an ankle support and the TENS machine.
40. A further review was conducted by Dr Berton who prepared a report on 18 December 1997 (T25) in which he said:
"He has had an MRI which nicely demonstrates a small spicule over the anterior tibia which one could easily imagine could be impinging at the front of his ankle and causing pain."
41. Dr Berton referred to the applicant as coping well with his ankle support and TENS machine but expressed the view that an ankle arthroscopy would stand an 80-90% chance of significantly improving his situation. He said that the small spicule could be excised and continued by referring to the applicant as having full ankle movement and as coping well with the ankle support and TENS machine.
42. After the applicant moved to Brisbane, his treating doctor, Dr G Boyce, referred him to Dr Peter Jackson, musculoskeletal physician. Dr Jackson provided reports, dated 17 February 2000 (T28), 23 September 2000 (T31) and 12 June 2001 (T42(b)), respectively. In the first of those reports, a history of the applicant's injury is given and Dr Jackson continued:
"Your client cannot run, is limited in walking in that he can only ambulate a couple of hundred meters at a time. The army has downgraded his occupation and he may have to be medically discharged from the army…
Re: range of movement the right ankle equaled [sic] the left but the right ankle movement was painful and week [sic]. Plantar flexion of the right ankle joint was less than the left by approximately 10 degrees and the power of both movements was approximately the same. Inversion of both ankle joints was equal and normal. Eversion of the right ankle was greater than the left indicating the possibility of hypermobility of this ankle due to ligamentous damage. This movement caused a feeling of apprehension in your client.
My diagnosis is myofascial pain syndrome of the muscles that activate your client's right traumatised ankle."
43. Dr Jackson expressed the opinion that the applicant's impairment equated with 20% whole person impairment under Table 9.5 of the Guide.
44. In his second report, Dr Jackson referred to the applicant as suffering "more than pain" and as having a weakness of the muscles and he said that it was this weakness that prevented the applicant from walking, in that he can only walk a couple of hundred metres at a time, and also from running. Dr Jackson said that the definition of the term "impairment" that he utilised was the "loss, loss of use, loss of efficient use or derangement of any body part, system or function". He said that he had conducted no functional test on the applicant. He also concluded that pain and difficulty are not synonymous but continued that it is "patently obvious pain can cause difficulty". At the end of that report, Dr Jackson expressed the opinion that the 10% whole person impairment criteria were met.
45. On 12 December 2000 (T35), Dr Peter Grant, senior medical officer compensation, prepared a report on the basis of his analysis of the files of the applicant and concluded that there was no evidence of reflex sympathetic dystrophy or any other changes. He said that myofascial pain is not a clinical condition in that context. He recommended that the difficulty caused by the permanent changes in the right ankle of the applicant be assessed under Table 9.5 of the Guide at 10%. Dr Grant also said that, if there were uncertainty in the way in which the Tables should be interpreted, a functional assessment could be conducted by an occupational therapist.
46. On 11 February 2001 (T39), Dr David Elder, consultant occupational physician, prepared a report where he detailed the history of the applicant's condition and said:
"He exhibited a normal posture and gait and there was no evidence of a limp. He could undress and redress himself, removing his shoes and socks and support ankle stocking without any difficulty. He was also able to climb up onto and down from the examination couch.
Examination of his lower limbs revealed no evidence of effusion or swelling around either ankle joint. I noted the obvious scarring from his previous arthrotomy.
He was wearing a splint which had the appearance of being in genuine regular use.
His range of movement in his right ankle was approximately 10° less than in his left. There was laxity in his lateral collateral ligaments and anterior fibular. His anterior drawer sign appeared slightly positive compared to his left ankle and there was crepitus on circumduction that was not present in his unaffected side.
He was able to heel walk and toe walk and perform a squat. He was also able to hop, both on one leg and from one leg to the other. There was no obvious evidence of instability. I observed him climbing up a flight of stairs with 18 steps and he did so, ascending/descending twice, with no apparent difficulty. He was able to walk without a limp after performing this test."
47. Dr Elder recorded that the applicant advised of having to cease running, as being able to walk a kilometre, feeling aggravation standing for 30 minutes, avoiding stairs and hills and having difficulty in ascending hills. He expressed the opinion that the applicant had a permanent impairment of his left ankle with a whole person impairment equal to 5% under Table 9.2 of the Guide and 0% under Table 9.5 of the Guide.
48. Dr Jackson, in his third report dated 12 June 2001, referred to the "observational" tests that had been conducted by Dr Elder where the applicant was required to ascend and descend a flight of 18 stairs twice and also hop from one leg to another. Dr Jackson noted Dr Elder's opinion that the applicant achieved this "without difficulty" but expressed the opinion that such a test was artificial as it gave no insight into whether or not the applicant would have difficulty with 100 steps or hop from one leg to another 50 times. He arranged for the applicant to undergo testing of a "functional" nature by Sportscare on 20 April 2001 (at T42(c)). He said that this was more objective and scientific as it uses the uninjured left ankle as a basis of comparison. Dr Jackson interpreted these results as revealing an ability to plantar flex 25% more difficult than the left; an ability to dorsi flex 13% more difficult than the left; and an ability to evert 37% more difficult than the left.
49. Dr Jackson again expressed the opinion that the relevant assessment for the applicant was 20% under Table 9.5 and he said that the reference to 10% in his previous report was simply that he met that threshold on the way to achieving the 20% benchmark. Dr Jackson also provided a definition of the term "absence of difficulties" which he had included in his final report. This was that there is "totally normal and unrestricted movement without pain, stiffness, weakness, instability, dysequilibrium and physical restriction or otherwise of the activities of ambulation including walking, running and climbing steps or grades".
50. In his oral evidence for the applicant, Dr Jackson was referred to the practice of the applicant of walking into the Caloundra shopping centre and said that it would not surprise him if the applicant was able to achieve that activity but that he would be doing so in the presence of pain. He said that this would be severe and the extent to which a person maintained the effort would vary from individual to individual. He was not surprised that the applicant was able to undertake the 8 to 10 minute sessions on his exerciser and he described him as a "fit man" who would benefit from such physiotherapy. He also was not surprised to hear that the applicant had been involved in hopping and running programs.
51. Dr Jackson agreed that an observer who saw the applicant undertaking his walking regime would not necessarily be aware of the difficulty that the applicant was facing. He also said that his opinion of 20% being the appropriate impairment rating was based not only on the applicant's inability to run or walk only short distances, but also to his observation of loss of movement and weakness in the ankle, although he agreed that these could be intermittent symptoms.
52. Dr Jackson was referred to the results of the MRI which had been done on the applicant in 1997 and to Dr Berton's comment that there was demonstrated "a small spicule over the anterior tibia". Dr Jackson said that this would strengthen his opinion that the relevant whole person impairment rating would be 20% under Table 9.5 of the Guide.
53. The applicant also called consultant orthopaedic surgeon, Dr Alan Searle, to give evidence. Dr Searle prepared a report on 27 April 2002 (exhibit A4) where he described the applicant in the following way:
"There is pain on the lateral aspect of the right ankle and the lateral part of the right foot and this is constantly present. It is aggravated by weight bearing, especially going up steps or stairs or slopes, or kneeling or squatting. The ankle feels unstable but he has not fallen now for some time. It becomes swollen, mainly on the lateral aspect and sometimes on the dorsum of the foot. The pain may spread up the peroneal compartment when it is bad. His maximum walking distance varies from ½ a kilometre to 2 kilometres but if he does this his ankle is painful and he will continue to have disabling aching in the ankle for some days.…….
He was wearing a Thermoskin support on his ankle. This was removed for the examination and replaced afterwards. He did not have a significant limp in the examination room. His palms were soft and clean and he did not give the impression of exaggerating or over-reacting.
His calves were equal by measurement but the right ankle measured 1 centimetre more than the left in circumference. Movements of the right ankle joint were slightly restricted but he did not complain of pain with plantar flexion or dorsi flexion. Passive movements of the tarso-metatarsal joints caused a quite loud click in the foot joints and this was reproduced several times during the physical examination. The same sound also occurred during a squatting movement. In the standing position there was slight varus of the right heel but his arches were normal …
He was able to walk on his toes or his heels and perform a full squatting movement without any complaint, but when he was performing the squatting movement there was a loud click in the ankle."
54. Dr Searle concluded that the applicant had a 20% whole person impairment under Table 9.5 of the Guide in that he can rise to the standing position and walk but has difficulty with grades, steps and distances. He also expressed the opinion that, in the clinical environment, it is not possible to divorce the effects of pain from the assessment of disability. He said that the applicant has difficulty with grades and distances because of the pain.
55. In his evidence, Dr Searle said that he was aware of the MRI results which indicated the presence of what Dr Berton called a "spicule" and said that the removal of this would only involve a temporary improvement in the ankle joint with the duration of that being dependent on the patient and with the prospect of it lasting for up to two years.
56. Dr Searle was asked about the walking activities of the applicant at Caloundra and said that the applicant would be experiencing pain whilst carrying out that walk but that this would not be observable to a lay person although it might be to an orthopaedic specialist.
57. Dr Elder gave evidence for the respondent and was asked about the applicant's practice of going into Caloundra shopping centre and said that, even though the applicant would be feeling pain, a bystander would not be aware of this.
58. In cross-examination, Dr Elder agreed that the Guide did not make reference to an objective test when assessing difficulty. He said that he followed the terms of the letter which had been sent to him when his opinion was sought. This made reference to an objective test. He said that pain may constitute a difficulty in the sense that it makes walking harder to perform. But he also said that pain does not always constitute difficulty if difficulty constitutes a loss of function. On the matter of whether pain prevents a person from carrying things out, Dr Elder said that it depends upon the individual and his ability to cope with it, to address it and whether the person allows the pain to control them.
59. Dr Elder said that the applicant's ankle has laxity which connotes an instability in the joint but he said that this would not be a problem for him on flat surfaces or even when walking up a hill. He said he would not expect the applicant to have difficulty on flat ground but thought he would have problems on uneven ground such as loose gravel because of the relevant lateral forces. He confirmed his observation in his report that there was a 10° loss of range of movement in the applicant's right ankle when compared with his left ankle.
60. Dr Elder was referred to the reference by Dr Berton to the spicule in the joint and said that, if an orthopaedic specialist of 42 years standing was to say that it was a significant factor in the causing of pain, he would yield to that opinion.
61. The respondent also called specialist in occupational medicine, Dr Keith Adam, to give evidence. Dr Adam prepared a report on 29 November 2001 (exhibit R1) and said:
"On examination, there was no evidence of swelling or effusion of the right ankle. He had lost 10 degrees of plantar flexion when compared with the left foot. That apart, the examination was normal with no clinical evidence of instability. There was no evidence of reflex sympathetic to dystrophy. To test Mr Watkins functional capacity, I accompanied him as we walked round several streets in my office, a distance of approximately 600 m before climbing a ramp in an adjacent car park, and ascending and descending several flights of stairs. Mr Watkins was able to complete the test at a brisk pace, without any apparent difficulty."
62. Dr Adam said that the applicant suffers from a chronic ligamentous injury to the right ankle which has permanent effects on him. He considered that the impairment was consistent with a 5% whole person impairment under Table 9.2 and 0% under Table 9.5. In his oral evidence, Dr Adam confirmed that the applicant demonstrated no apparent difficulty in carrying out the walking exercise with him. Dr Adam was of the opinion that the only way to measure difficulty was whether, on objective observation, this was displayed. Dr Adam accepted that the applicant had been wearing an ankle guard at the time and said that this would have helped him to a small degree.
Submissions
63. Mr Perry and Ms Ford both provided detailed written submissions following the hearing. Ms Ford did so after obtaining a transcript of proceedings which she provided to the Tribunal and which she referred to in her submission. Ms Ford also provided a photocopy of a street directory map of the Caloundra area and submitted that regard should be had to it when assessing distances walked by the applicant. Mr Perry, in his response, submitted that it was in breach of the Commonwealth's model litigant policy for Ms Ford to have taken these steps and that regard should not be had to these documents.
Applicant's Submission
64. Mr Perry submitted that the applicant suffers a whole person impairment under Table 9.5 the Guide of 20% and that he is entitled to an award of compensation pursuant to sections 24 and 27 of Act. In the alternative, he submitted that the applicant is suffering from a 10% whole person impairment and should be compensated accordingly. Further, he submitted that the Tribunal should calculate the amounts of compensation under those provisions or remit the matter to the respondent. He also submitted that the Tribunal should make an order that the respondent pay the costs of the applicant on the basis that the matter proceeded to hearing in the Tribunal because the respondent had unreasonably failed to make an appropriate offer of settlement in light of the assessments by its own senior medical officer and had failed to properly instruct its medical experts in the appropriate way to assess the question of the applicant's whole person impairment under Table 9.5 of the Guide based upon existing authority.
65. Mr Perry submitted that, as a result of his injury, the applicant has undergone significant changes to the nature of the work-related duties and the leisure activities that he could undertake and this was demonstrated particulary in relation to his Army Reserve duties where he was redeployed to clerical duties in 1998. He submitted that this shows that he must have suffered a more than minor permanent impairment. He described the applicant as a witness of credit and said that the fact that the army has been prepared to keep him within its service supported that conclusion.
66. He accepted that the applicant has walked between his home and the shopping district in Caloundra but submitted that there was no evidence of the distance involved except that it was equivalent to ten to fifteen minutes walk each way and, also, that there was evidence of difficulty in even performing that walk in that he experienced pain. In relation to Table 9.5, he submitted that the applicant does not need to show that he has difficulty with distances of up to 10 to 15 minutes or with relatively easy grades, such as that between his home and the shopping district at Caloundra in that the test is not whether he can walk any particular distance but, rather, whether he experiences difficulty in doing so. He submitted that experiencing pain amounts to "difficulty" in that it makes the function of walking harder to perform.
67. He also submitted that the applicant's ankle has given way or "rolled" on various occasions since 1992 with the most recent of these being two months before the hearing and that this, in itself, amounts to difficulty.
68. Mr Perry referred to the qualifications of Dr Jackson as including a post graduate diploma of musculoskeletal medicine from Otago University, and as being a fellow of the Australian College of Physical Medicine, a fellow of the Australasian Faculty of Musculoskeletal Medicine and a clinical associate lecturer in musculoskeletal medicine at the University of Queensland. He described these qualifications as superior, in the context of the relative expertise to be taken into account when assessing this case, to those of Drs Elder and Adam. He submitted that Dr Jackson did not appear to be aware of the MRI investigation conducted on 11 April 1997 (T22, p 67) but said that this confirmed Dr Jackson's opinion that there was a 20% whole person impairment under Table 9.5 of the Guide.
69. Mr Perry also referred to Dr Searle's expertise from practising as an orthopaedic specialist for 42 years and submitted that his evidence should be preferred to that of Dr Elder and Dr Adam both of whom had deferred to Dr Searle's greater expertise in evidence. He noted the opinion of Dr Searle that the applicant's condition is a significant one and much misunderstood and underestimated in terms of the severity of symptoms and dysfunction that it produces.
70. He submitted that Dr Grant had recommended that the applicant be assessed under Table 9.5 at 10% whole person impairment.
71. Mr Perry submitted that Dr Elder and Dr Adam had been provided with incorrect instructions to follow when assessing hardship in that the imposition of an objective test is not consistent with authority and that, as such, their evidence was necessarily flawed. Even so, Dr Elder had found a loss of normal range of movement in the applicant's right ankle, laxity in comparison with the left ankle and crepitus on circumduction which was not present on the unaffected side. Mr Perry submitted that Dr Elder's evidence that these matters would only be relevant to walking upon uneven ground wrongly applied Table 9.5 which refers to limb function and must, unless specifically restricted, apply to ordinary human experience and must therefore include all surfaces.
72. Cases which Mr Perry submitted were factually similar to that of the applicant and which should be considered by the Tribunal were Re Brouwer and Australian Postal Corporation [2001] AATA 570, Re Whelan and Department of Defence (1996) 47 ALD 383, Re Jones and Department of Defence (AAT 13357, 8 October 1998) and Re Curtis and Australian Postal Corporation (AAT 10098, 30 March 1995).
73. Mr Perry submitted that the Guide is an example of remedial legislation which should not be construed or interpreted in a manner which limits workers' entitlements under the Act and that, where there are two constructions open, that which is more favourable to the worker should be adopted: Re Haugh and Comcare [1999] AATA 906, Comcare v Ticsay (1992) 38 FCR 181, Thiele v Commonwealth (1990) 22 FCR 342 at 346, Wilson v Wilson's Tile Works Pty Ltd (1960) 104 CLR 328 at 335 per Fullagar J, PublicTransport Commission (NSW) v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336 at 350 and Whittaker v Comcare (1998) 28 AAR 55.
Respondent's Submission
Ms Ford submitted that, while the Guide contains a preface and an introduction which are largely explanatory and have no bearing upon the construction of the Tables, it also includes a section dealing with principles of assessment and a glossary and these do have an important bearing on the interpretation of the Tables: Comcare v Ticsay (1992) 38 FCR 181. She submitted that the term "impairment", as defined in section 4 of the Act to mean "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", is repeated under "Principles of Assessment" in the Guide where it is also referred to as including "anatomical loss, anatomical abnormality, physiological abnormality and psychological abnormality".
74. She also submitted that the Guide emphasizes loss of function as a basis of assessment of impairment and the use of objective criteria rather than subjective concepts such as pain and suffering and that, when assessing difficulty in carrying out tasks, pain which makes a person incapable of performing the function may be taken into account but not pain which is unpleasant but not disabling: Jenkinson J in Comcare v Amorebieta (1996) 22 AAR 539.
75. In relation to the topography in the area around the applicant's home in Caloundra, Ms Ford submitted that the Tribunal has investigative powers and can take "judicial notice" of distances between places with which Members are familiar and can have regard to publicly available documents such as street directories. In that regard, she submitted that the walk into the centre of Bulcock Street via Kings Beach from Alfred Street would take significantly longer than 15 minutes.
76. Ms Ford also submitted that the applicant's evidence should be treated with caution because of the inconsistent statements made by him to the various doctors who gave evidence. She referred to Dr Ashwell as having described "minor restriction and difficulty with uneven ground" and to his statement that the applicant "should be able to cope with most of his activities". She also referred to Dr Castagna's report which, although stating that the applicant would not be able to partake in running and jogging, "he is still capable of walking but not too briskly". She also referred to the report of Mr Baines, to the hopping and running program which was completed without any sign of joint irritation and to the comment of Mr Baines that the applicant complained of some deep ankle pain when running.
77. Ms Ford submitted that the evidence of the applicant shows that he engages in significant exercise including walks from his home in Alfred Street (200m from Shelly Beach) into town to Bulcock Street, Caloundra and home again after transacting business; use of a fitness flyer two to three times a week for 5 to 10 minutes each time; and occasional walks along the pathway near the beach. As well, she referred to the applicant's statement of belief that he could walk kilometres if his car broke down and to his evidence that anyone who saw him returning to Alfred Street after walking into Bulcock Street and back or up the hill to Bulcock Street or up stairs would not think that he was having difficulty walking.
78. Ms Ford submitted that the applicant's ankle pain does not actually prevent him from walking grades, steps or distances and that there was no evidence of difficulty such as limping. She referred to the types of work that he has engaged in since incurring the injury, and submitted that these required four or five hours a day on his feet doing physical work such as unpacking containers or working behind the bar or in the cellar at Tattersalls Hotel.
79. She submitted that Dr Jackson had incorrectly taken pain into account in making the assessment of 20% impairment as well as his understanding that an absence of difficulties was "totally normal and unrestricted movement without pain, stiffness, weakness, instability, disequilibrium and physical restriction or otherwise…". She described Dr Jackson as conceding that the applicant's ankle would not prevent him from walking, that a running and hopping program would be good treatment for him and that he could perform activities and appear normal to an observer.
80. In relation to Dr Searle, Ms Ford submitted that he had also based his assessment upon the fact that the applicant experienced pain while walking up stairs, slopes and distances but also that he had accepted that the applicant could appear to be walking in a normal manner.
81. Ms Ford also submitted that Dr Elder had not agreed that suffering pain necessarily made the activity of walking more difficult. She submitted that reliance should be placed on the evidence of Dr Adam who was the only doctor who actually took the applicant walking and observed him walking up stairs and slopes, did not notice any difficulty experienced during those activities and concluded that the applicant was "able to complete the test at a brisk pace, without any apparent difficulty".
82. Ms Ford submitted that it was not relevant under Table 9.5 that the applicant had discontinued some activities as such evidence is relevant to the assessment of the "lifestyle effects" for the purpose of section 27 as the Guide makes it clear "lifestyle effects" should not be confused with the assessment of impairment. She submitted that the only relevant test is whether the applicant has difficulty walking grades, steps or distances and that carrying out the activities of walking up grades and steps more slowly than previously does not equate with objective difficulty in doing those activities. She also submitted that the few isolated incidents since 1993 of the applicant "rolling" on his ankle were not relevant to the test under Table 9.5.
83. In relation to the change in employment activities, she submitted that there was no inconsistency in being considered unfit for infantry duties and being assessed as suffering less than 10% whole person impairment because incapacity for work is an entirely separate issue.
84. Finally, Ms Ford submitted that, while there is no dispute that the applicant suffered two work related injuries to his right ankle as a result of which he is suffering some permanent impairment, the degree of impairment is less than 10% as he is able to walk normally and exhibits no objective signs of difficulty when traversing grades, steps and distances.
Consideration
The Tribunal reached its decision in this matter after taking into account the oral and documentary evidence, the written submissions, legislation and relevant case law. Regard was not had to the transcript, as this was not necessary, or the street map of the Caloundra area supplied by the respondent, as this had not been properly identified in evidence or made available to the applicant during his evidence for identification and comment.
86. The applicant suffered an initial injury to his right ankle in 1992 and subsequently re-injured it in 1993. It is not in dispute and the Tribunal, having regard to the matters in sub-section 24(2) of the Act, finds that the applicant experiences impairment from the injury and that the injury is permanent.
87. In this case, Tables 9.2 and 9.5 of the Guide have both been considered. In Whittaker v Comcare (1998) 28 AAR 55, the Full Court of the 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 yields the more favourable result to the employee.
88. The evidence of Dr Randle, Dr Ashwell, Dr Berton and Dr Jackson is that the applicant has a full range of movement in the ankle joint although Dr Elder and Dr Adam noted a 10 degree loss of range of movement and Dr Searle referred to a slight restriction in ankle movement. On that basis, the Tribunal is reasonably satisfied that a rating no higher than 5% can be allocated for whole person impairment under Table 9.2 of the Guide. That level refers to the loss of less than half normal range of movement of the ankle.
89. To meet the threshold of 10% 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 and steps. For the threshold of 20% under that Table, he must be able to rise to a standing position and walk but have difficulty with grades and steps and distances. Clearly, he can rise to stand and can walk; but, does he have "difficulty" with grades and steps or with distances? The term "difficulty" was considered by the Full Court of the 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 such difficulty 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.
24. 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."
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 grades, steps and/or distances. The limitation need not be significant or substantial but it must be more than slight or minimal.
91. The factor(s) responsible for giving rise to the particular difficulty will need to be considered. In Re Mooney and Australian Postal Corporation (AAT 9969, 27 January 1995) at paragraph 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 Perry that pain may be taken into account as the source of difficulty in performing an activity: see also Re Curtis and Australian Postal Corporation (AAT 10098, 30 March 1995) at paragraph 55 and Re Whelan and Department of Defence(1996) 47 ALD 383 at 401. The Tribunal is also satisfied that weakness in a joint may be taken into account as the source of such a difficulty.
92. While pain and weakness may each be taken into account as a source of difficulty in performing an activity, that is not to say that the mere presence of pain or of weakness, without more, means that there is difficulty experienced. The Tribunal notes the reference in the relevant Principles of Assessment to objective criteria (see paragraph 6 above) and is satisfied that, before there can be a finding that there is difficulty in performing a task because of pain, weakness or some other factor, there must be some objective manifestation of that pain or weakness which reveals the difficulty. To find otherwise would be to equate pain or weakness with difficulty and to allocate impairment ratings for those matters which more properly fall for consideration as lifestyle effects for assessment under non-economic loss.
93. In Re Brouwer and Australian Postal Corporation [2001] AATA 570, the Tribunal found a 20% whole person impairment under Table 9.5 of the Guide in relation to a lower limb injury on the basis that there was difficulty with steps, grades and distances because of pain. However, there, the Tribunal was relying not merely on the presence of pain but accepted that the lower limb condition resulted in a "paddling gait", that the claimant had needed to rest during a walk which had been recorded on a surveillance video, that the claimant's foot "splayed out" and that he experienced swelling on use of his leg.
94. In Re Whelan and Department of Defence (1996) 47 ALD 383, the Tribunal also found a 20% whole person impairment under Table 9.5 of the Guide in relation to the claimant's bilateral knee condition with the difficulty being due mainly to the presence of pain on using steps, negotiationg grades and on prolonged walking. In addition, the Tribunal relied upon the curtailment of activities previously engaged in by the claimant and, in that regard, referred to the following comment by Jenkinson J in the Federal Court decision of Comcare v Amorebieta (1996) 22 AAR 539 at 554:"Loss, or loss of use, or the damage or malfunction, of a bodily system or function or part thereof resulting from injury does not in my opinion comprehend voluntary abstention from use, even where the abstention is calculated, and likely, to benefit the bodily system or function."
In Whelan, the Tribunal noted that Jenkinson J's comment was made in respect of assessing a range of movement, such as required in Table 9.2 of the Guide, and that the applicability of that comment to considerations of loss of function under Table 9.5 of the Guide was left open. On that basis, the Tribunal found that Jenkinson J's comment did not prevent it from taking into account, under Table 9.5, restrictions of function which are required to be adopted to avoid physiologically harmful effects (at 401).
96. In Re Jones and Department of Defence (AAT 13357, 8 October 1998), for a finding of 20% whole person impairment under Table 9.5 of the Guide, the Tribunal again relied on the presence of pain during activities and the curtailment of activity as well as the fact that the claimant undertook the relevant physical activity with the benefit of medication (at para 42).
97. No assistance is given in the Guide as to the meanings of the terms "grades, steps and distances". The concepts of grades and steps are not difficult to understand although no guidance is given on the degree of gradient or the number of steps that are to be considered; nor is any quantification of distance provided. However, the Principles of Assessment (see paragraph 7 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 degrees and lengths of grades, the numbers of steps, and extent of 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 (1996) 47 ALD 383 at 399 and Re Morley and Comcare (1996) 40 ALD 725 at 731.
98. The most recent reports from treating specialists Dr Berton and Dr Ashwell were completed in 1997 and both make reference to the MRI scan conducted earlier that year. Dr Ashwell describes a small effusion (T24) and Dr Berton describes a small spicule (T25). The presence of such a phenomenon does not, of itself, have direct relevance under Table 9.5 of the Guide as the impairment criteria in that Table relate to limitations on what the applicant can do but, of course, the presence of the effusion/spicule will be indirectly relevant if it is responsible for the imposition of any such limitations. Dr Searle (see paragraph 55 above) said that he was aware of this phenomenon when reaching his conclusion that the appropriate whole person impairment under Table 9.5 of the Guide was 20%. Dr Jackson (see paragraph 52 above) referred to the presence of it as strengthening his same conclusion.
99. The Tribunal accepts that the applicant was a truthful witness. There has been no suggestion in the medical evidence that he has attempted to exaggerate his symptoms. Indeed, in the tests conducted by Dr Elder, Dr Adam and by Sportscare, there was no attempt to feign symptoms, for example, by favouring his ankle and the Sportscare report described the applicant as making a 100% effort (T42(c)). Dr Elder noted the applicant's ankle support and commented that it had the appearance of being in "genuine regular use".The Tribunal finds that the applicant experiences pain on the use of his ankle. This was recognised in the evidence of Dr Jackson, Dr Searle and Dr Elder. The Tribunal also finds that he has weakness in the ankle as identified by Dr Jackson in the results of the functional tests conducted on him. The applicant is able to negotiate steps and does so without the assistance of a handrail for support. However, he does not negotiate stairs as well or as quickly as he did before his injury and feels pain when doing so. The Tribunal also finds that he feels pain on negotiating grades and walking distances with the onset of pain varying from distances of 200 metres to a kilometre. His walking is not characterised by a favouring of his ankle in the sense that he does not limp in walking. He did not attempt to obscure this in his evidence and agreed that an observer would not be aware that he was in pain. Limitations were not noted by Dr Elder in the steps that he saw the applicant negotiating or by Dr Adam during his 600 metre walk with the applicant. However, The Tribunal notes the comments by Dr Jackson (paragraph 49 above) about the reliability of such observational tests in comparison with the functional test which he considered to be more reliable. He was described by Dr Jackson as a fit man and the Tribunal finds that he attempts to maintain a level of fitness by using his exerciser and by walking, sometimes to the beach and sometimes into the Caloundra shopping centre which takes about 15 minutes and requires him to ascend a hill. He is assisted in walking by an ankle guard and by the pain relief he gains afterwards from the use of a TENS machine. The evidence of Mr Baines was that the applicant was able to run in carrying out exercises. However, the applicant only attempted that exercise on two occasions in his own time, experiencing pain at the time, and that indicates a degree of difficulty significantly greater than one would expect for a person of the applicant's age and fitness level.
Unlike the claimant in Re Jones and Department of Defence (above at paragraph 97), the applicant does not take medication for his pain. However, the Tribunal is satisfied that the use of the ankle guard and the utilisation of the TENS machine are strategies that he has adopted to enable him to walk through his pain and weakness and to enable him to undertake activity involving the use of his ankle and that these place the applicant in a similar position to the claimant in that case.
Closely associated with matters of health and age are the activities in which the applicant previously engaged and which have been curtailed. He has discontinued favoured leisure pursuits such as hunting and engaging in touch football and martial arts exercises. The most significant change in the level of his activity has been in the duties he carried out in the Army Reserve where he was downgraded physically to the point where he is unable to carry out the duties of an infantry soldier, which included the maintenance of a fitness regimen involving running in "full kit" for 5 kilometres. The Tribunal finds that the cessation of his involvement in these formerly favoured pursuits has been because of his ankle condition. The Tribunal is also satisfied that this demonstrates that he has difficulty with the kinds of physical activities associated with those pursuits and that these are able to be equated with difficulty in the negotiation of grades, steps and distances.
Dr Grant expressed a reservation on the question of whether observations of mobility could be used to assess impairment and it was to clarify doubt on that issue that he commended a consultation with an occupational therapist. Nevertheless, his report (T35) recommended a 10% impairment under Table 9.5 of the Guide and this means that he accepted that the applicant had difficulty on grades and steps.
The Tribunal is reasonably satisfied that the pain and weakness that the applicant experiences in his ankle joint, as demonstrated by the strategies that he has adopted to enable him to cope with these sensations, as well as the range of physical activities that he has had to curtail, constitute limitations that the applicant experiences in his capacity to negotiate steps and grades and to walk a distance. The Tribunal is also reasonably satisfied that they constitute a difficulty which can 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[2001] FCA 1810. It follows that he meets the threshold level of 20% whole person impairment in Table 9.5 of the Guide.
Decision
105. In all the applicant's 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 the applicant under sections 24 and 27 of the Act in respect of 20% whole person impairment resulting from his ankle injury.The Tribunal remits the matter to the respondent to calculate the applicant's entitlement in accordance with the Tribunal's findings.
The Tribunal also determines that the respondent shall pay the applicant's costs pursuant to the General Practice Direction.
I certify that the 107 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member
Signed: Sarah Oliver
AssociateDate of Hearing 11 June 2002
Date of Decision 26 July 2002
Counsel for the Applicant Mr G Perry
Solicitor for the Applicant Lee Sames Egan
Counsel for the Respondent Ms E Ford
Solicitor for the Respondent Australian Government Solicitor
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