Richards and Military Rehabilitation and Compensation Commission
[2007] AATA 44
•2 February 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 44
ADMINISTRATIVE APPEALS TRIBUNAL )
)
GENERAL ADMINISTRATIVE DIVISION ) No Q2005/678 Re DAVID RICHARDS Applicant
And
MILITARY REHABILITATION & COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Member S C Fisher
Member Dr G J MaynardDate2 February 2007
PlaceBrisbane
Decision The Tribunal affirms the decision of the Respondent dated 5 September 2005
.........[Sgd]..........
S C Fisher
Member
CATCHWORDS
WORKERS’ COMPENSATION – permanent impairment – knee injury – 10% or 20% whole person impairment – consideration of term ‘difficulty’ – difficulty with distances to warrant higher rating under Table 9.5
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 19, 24, 67
Administrative Appeals Tribunal Act 1975 ss 43, 37Secretary, Department of Social Security v Murphy (1998) 52 ALD 268; [1998] FCA 809
Ajka Pty Ltd v Australian Fisheries Management Authority (2003) 74 ALD 21; [2003] FCA 248
Bantick and Secretary, Department of Family and Community Services [2003] AATA 472
Bramwell v Repatriation Commission (1998) 158 ALR 623; (1998) 28 AAR 342; (1998) 51 ALD 56
Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598
Chowhan and Secretary, Department Of Family and Community Services [2004] AATA 1236
Collins v Repatriation Commission (1994) 33 ALD 557
Haugh v Comcare [1999] AATA 906
Re Whelan and Department of Defence (1997) 47 ALD 383
Re Morley and Comcare (1996) 40 ALD 725 at 731; (1996) 22 AAR 451Hemley and Military Rehabilitation and Compensation Commission [2006] AATA 128
Comcare v Moon [2003] FCA 569; (2003) 75 ALD 160
Watkins and Comcare [2002] AATA 613
Comcare v Roser [2003] FCA 243
Re Jones and Department of Defence (AAT 13357, 8 October 1998)
Re Nguyen and Comcare Australia (AAT 10133, 18 April 1995)
Whittaker v Comcare (1998) 86 FCR 532; (1998) 28 AAR 55
Saxton and Military Rehabilitation and Compensation Commission [2005] AATA 1059
Comcare v Fiedler (2001) 115 FCR 328
Millen and Military Rehabilitation and Compensation Commission [2005] AATA 555
Lidgett and Comcare (Departmnet of Veterans’ Affairs) [2003] AATA 910REASONS FOR DECISION
2 February 2007 Mr SC Fisher, Member
Dr GJ Maynard, MemberIntroduction and Background
1. Mr David Rees Richards ("Mr Richards" or "the Applicant") was a member of the Royal Australian Air Force from 12 September 1990 until his voluntary discharge on 29 February 2004 with the rank of Corporal.
2. This appeal involves a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 ("the Act”).
3. On 9 July 2004, the Applicant submitted a claim for compensation for bilateral compartment syndrome of the lower limbs.
4. On 15 December 2004, the Respondent made a determination accepting liability for "bilateral compartment syndrome" with the date of injury comprising 30 July 1993. On the same date, Respondent declined to make a determination in favour of the Applicant concerning permanent impairments under Tables 9.2 and 9.5 of the Guide to the Assessment of the Degree of Permanent Impairment (2nd Edn, 2005). Consequently, the Respondent determined that no payment could be made to be Applicant.
5. On 12 January 2005, the Applicant (through his solicitor) requested reconsideration of the Respondent’s decision of 15 December 2004. On 5 September 2005, the Respondent varied the 15 December 2004 determination to make a determination of a 10% whole person impairment under Table 9.5.
6. On 30 September 2005 the Applicant appealed to this Tribunal against the 5 September 2005 decision.
Jurisdiction
7. The Tribunal has jurisdiction in this appeal by virtue of Part VI of the Safety, Rehabilitation and Compensation Act 1988. References to statutory provisions are to provisions of the Act unless the context indicates otherwise.
The Role of the Tribunal
8. The role of the Tribunal is to review the merits of the decision before it: section 43 of the Administrative Appeals Tribunal Act 1975 and Secretary, Department of Social Security v Murphy (1998) 52 ALD 268; [1998] FCA 809. The Tribunal is guided by the norm that it should reach the correct and preferable decision on the basis of the material before it: Ajka Pty Ltd v Australian Fisheries Management Authority (2003) 74 ALD 21; [2003] FCA 248 at [33]. The Tribunal is required to stand in the shoes of the original decision-maker and consider all evidence anew, bearing in mind statutory provisions and any significant legal precedent: Bantick and Secretary, Department of Family and Community Services [2003] AATA 472 at [23]. The Tribunal proceeds de novo: Bramwell v Repatriation Commission (1998) 158 ALR 623; (1998) 28 AAR 342; (1998) 51 ALD 56 at 60 per Weinberg J. The Tribunal must base its decision upon the material that is logically probative of the existence of facts that emerge from the evidence before it: Collins v Minister for Immigration and Ethnic Affairs(1981) 36 ALR 598 at 601.
9. In Chowhan and Secretary, Department Of Family And Community Services [2004] AATA 1236, Member Christie said the following about the process of Tribunal review, which this Tribunal gratefully adopts:
“[32] The legislation is the only basis for the review of this administrative decision. Administrative decision-makers are not permitted to depart from the law. The Tribunal must make its decision on the merits of the case – but in accordance with the legal requirements imposed by the Act, together with the relevant legal principles that arise from decisions made by our Courts.
[33] Administrative decision-makers are generally required to address the evidence before them and not confine themselves to evidence before a prior decision-maker whose decision is being reviewed unless the relevant legislation requires a decision to be based upon the circumstances at a particular point of time: see Australian Tea Tree Oil Research Institute v Industry Research and Development Board (2002) 124 FCR 316 at 324-326; Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511 at 521; Jebb v Repatriation Commission (1988) 80 ALR 329 at 333). In Jebb, at 333, approved by Stone J in Australian Tea Tree Oil at 325, Davies J described decision-making in the Tribunal as generally a ‘continuum’ in which ‘the tribunal considers the Applicant’s entitlement from the date of application, or other proper commencing date, to the date of the tribunal’s decision’.”
The Material Before the Tribunal
10.The following documentary evidence was before the Tribunal:
Exhibit 1 Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (documents T1 – T 22).
Exhibit 2Letter from Dibbs Abbott Stillman dated 26 May 2006 enclosing Report of Dr Eaton dated 25 May 2006.
Exhibit 3Excerpts from an online medical dictionary concerning chronic compartment syndrome.
Exhibit 4Statement of David Richards dated 8 March 2005.
Exhibit 5Statement of David Richards dated 1 February 2006.
Exhibit 6Curriculum Vitae of Dr James Rowe
11. The Applicant was represented by Mr R S Ashton of Counsel instructed by D’Arcys Solicitors. The Applicant provided a Statement of Facts and Contentions to the Tribunal.
12. The Respondent lodged documents under section 37 of the Administrative Appeals Tribunal Act 1975 in relation to each appeal as described above. These documents were taken into evidence as Exhibit 1.
13. The Respondent was represented by Mr C J Clark of Counsel, who was instructed by Dibbs Abbott Stillman. The Respondent provided a Statement of Facts and Contentions to the Tribunal.
14. The Tribunal considered carefully all of the documentary and oral evidence before it.
Evidence on behalf of the Applicant
15. The Applicant gave evidence in person. Evidence was given on behalf of the Applicant by Mr Wayne Ward and Dr James Rowe.
Evidence of Mr Richards
16. The oral and written evidence of the Applicant is summarised in the following account:
A.The Applicant said he was currently working as a concreting contractor.
B.The Applicant said that he first began experiencing difficulty with his legs in 1993, and that this caused him difficult in running for fitness purposes. Running would cause his legs to ache and stopping would provide instant relief.
C.Mr Richards says he has difficulty climbing stairs. He places his whole foot on the stairs as stepping on the ball of his foot makes his legs “pump up” and become stiff. He uses the hand rail if available.
D.Mr Richards experiences fatigue in his legs when walking up inclines and to a lesser extent when walking down.
E.On uneven ground Mr Richards’ legs become sore within minutes. He mentioned store travelators.
F.Mr Richards says he is able to cover between half to one kilometre when walking at his own pace on even ground before his legs become sore. He has difficulty in keeping up with people of his own age and this reduces his range to a limit of one hundred to five hundred metres.
G.Mr Richards said that if he continues to walk the pressure in his legs increases and his feet start to tingle and go numb. By the end of the day he is limping.
H.Mr Richards said that he got a gardening job after his voluntary discharge from the Air Force.
I.Mr Richards said that he would start to experience discomfort and pain in his legs after walking between 500 m – 1 km.
J.Mr Richards said that on some days his legs are better and on some days they are worse.
K.Mr Richards said that he has difficulty keeping up with friends of about his own age with other people in a group whilst walking.
L.Mr Richards said that whilst he had contact with his children over the Christmas 2005 school holidays, he had some difficulty keeping up with them at a visit to the Dreamworld theme park.
M.Mr Richards said that in his post airforce work in gardening/water culture, he would not necessarily have to walk long distances, just short distances of about 10 or 20 m, and later in another gardening job, he would have to walk to up to 400 m back to a motor vehicle.
N.Mr Richards said that during an overseas trip when he visited temples in Cambodia, he confined his travels mostly to places where public transport was available. On occasions, he would have to walk several hundred metres on uneven terrain to get to temples. Mr Richards described how he was not able to complete a visit to the large temple at Angkor Wat because he could not finish the walk to the temple itself.
O.In cross-examination, Mr Richards describes his holiday to South America, in particular Chile and Argentina, and also France, Portugal, Spain, England, Ireland, Cambodia, Thailand and Vietnam. Mr Richards said that he did not walk long distances during those holidays referring to distances of a few hundred or several hundred metres on particular occasions. On one visit to Iguazu Falls (Argentina), Mr Richards described a walk of about 3 km over the course of a day.
P.Mr Richards described his work activities as a concreter, saying that he would walk for short distances of maybe 20 m or so performing particular tasks, and then he would rest between walks or between activities. Mr Richards said that at the end of his working day when he gets home from work, he was in the habit of resting his legs for about 30 minutes which gave him instant relief.
Q.Mr Richards described difficulties engaging in social activities such as going to bands and clubs where his companions would move from location to location entailing trips of approximately a few hundred metres because the walking would make his legs ache.
R.Mr Richards was cross examined on his evidence in a vigorous manner and at times he seemed unsure and hesitant with his answers which allowed some doubt about his consistency.
S.In cross-examination, Mr Richards was questioned on his attendance at the “Big Day Out” at the Gold Coast early in 2006. In company with Mr Ward he stayed in accommodation about three kilometres from the venue. They walked to the venue over undulating terrain, spent up to ten or eleven hours there and walked home. They did not walk home together. Mr Richards said he did it at his own pace but he did complete the distance. Answers to questions about the activity enjoyed there were evasive and not illuminating.
T.Mr Richards was examined on the evidence given about his work and again it was not clear exactly what he could or could not do but it was generally accepted that work as a concrete labourer was arduous and required much time on one’s feet often over uneven ground.
U.Answers to questions asked about the overseas holiday followed a set line of limited sightseeing, use of transport rather than walking and avoidance of steps. From the answers given at times there seemed to be little activity on the holiday.
V.In cross-examination, Mr Richards agreed with the fact that he was able to run on a treadmill for 20 minutes during a medical examination with Dr Mark Young, Sports Physician.
W.In cross-examination, Mr Richards agreed that he was able to mow his lawn using a push mower on his previous house block of approximately 600 square metres.
Evidence of Wayne Ward
17. The evidence of Mr Wayne Ward (called by the Applicant) in these proceedings is summarised as follows:
A.Mr Ward has been a friend of the Applicant for about 18 years or so.
B.Mr Ward is the employer of the Applicant and the Applicant lives with him.
C.Mr Ward gave evidence that corroborated Mr Richards evidence on the holiday, the Big Day Out and his employment however a couple of salient points emerged. Mr Ward's evidence confirmed that Mr Richards walked about 3 kms to and from the concert venue albeit at his own pace.
D.Mr Richards could work for a period of one and a half hours before he required a short break to ease his legs before resuming work.
E.Mr Ward resolutely stuck to his observation that Mr Richards found 100 m a long way to walk despite the other evidence on Mr Richards' walking capabilities. There seemed something special about 100 m.
Evidence of Dr James Rowe
18. The evidence of Dr James Rowe, Occupational Physician (called by the Applicant) in these proceedings is summarised as follows:
- Dr Rowe an Occupational Physician appeared for the Applicant. It was his opinion that Mr Richards met the criteria in table 9.5 for 20% whole person impairment. The only part of his examination upon which he could reach this conclusion was the walking test he conducted. For this test he states in his report dated 1 July 2004 the following:
When taken on a walk he walked up and down stairs with difficulty and took one step at a time and tended to put his whole foot on the step and held the hand rail. On flat ground he could walk reasonably well but on an incline he was observed to be in some discomfort and he could not keep up with me on an incline.
- When asked, Dr Rowe said that the total distance for the test was four hundred yards.
- Dr Rowe failed to mention distance capability, an essential description for the 20% level in Table 9.5, in his observed findings but gave an implied opinion that distance was impaired in his recommendation of the 20% level.
- Mr Richards was not working when seen by Dr Rowe and he agreed that working as a concrete labourer was hard work.
- In cross-examination, Dr Rowe was questioned closely about his observations, his clinical findings and his summations on the medical condition of the Applicant.
19. Many of the questions put to Dr Rowe in his examination in chief were leading questions. The Tribunal gave less weight to Dr Rowe’s answers on this account.
Evidence on behalf of the Respondent
20. Dr Phillip Vecchio, Dr Mark Young and Dr David Eaton gave evidence on behalf of the Respondent.
Evidence of Dr Phillip Vecchio
21. Dr Phillip Vecchio, Specialist Rheumatologist, gave evidence on behalf of the Respondent. Dr Vecchio provided a report dated 26 August 2005 which was part of Exhibit 1, T11 in this proceeding. Dr Vecchio examined the Applicant on 19 August 2005. A summary of the evidence of this witness is as follows:
A.Dr Vecchio reiterated the medical history of Mr Richards with the addition that Mr Richards reported that during the conduct of the thallium scan on the 10th December 2004 he exercised on a treadmill for 9.5 minutes at 15 degrees gradient at 5.5 kph collapsing with 6 out of 10 pain in the legs.
B.Mr Richards reported that he could walk 500 m to 1 km on the flat although any grade or stairs exacerbated his discomfort.
C.Mr Richards also reported that he gave up his work as a gardener due to increasing symptoms (although in other evidence Mr Richards said he gave up work to travel overseas. The Applicant’s counsel tried to downplay the role of the overseas holiday as being the primary reason for giving up work when this matter was raised).
D.Dr Vecchio disagreed with the report of Dr Rowe that there was a problem with walking distances. Dr Vecchio used the information in Dr Rowe’s report of Mr Richards being able to walk 1.5 km and Dr Young’s report of an exercise test of about 1 km to deny that there is a problem with distance.
E.Dr Vecchio was of the opinion from his own observation of about 200 m walking and the reports of Dr Rowe and Dr Young that Mr Richards had no impairment to walking distances.
F.Dr Vecchio judged Mr Richards as having 10% total body impairment based on Table 9.5.
Evidence of Dr Mark Young
22. Dr Mark Young, Sports Physician, gave evidence on behalf of the Respondent. Dr Young provided two medical reports, the first dated 21 January 2002, and the second dated 14 September 2004. The second was the lengthier of the two. These two medical reports became part of Exhibit 1 in this proceeding (documents T6 and T10 respectively). Dr Young examined the Applicant on 21 January 2002, 8 September 2004 and 6 October 2004. A summary of the evidence of this witness is as follows.
23. Dr Young diagnosed Mr Richards with chronic anterior compartment syndrome in 2002 (T6, P61).
24. In March 2003 Dr Young performed a maximal exercise test on Mr Richards. This involved a twenty minute run on a treadmill. A pressure test after the exercise suggested that Mr Richards had developed a deep posterior compartment syndrome. He recommended further surgery. (T8, P63).
25. Dr Young again examined Mr Richards at the request of MCRS and submitted a report dated 14th September 2004. (T10, P68-78) At that time Dr Young reported that Mr Richards told him, inter alia, that he can perform the activities of daily living but has minor difficulty in mowing the lawn. What this actually meant was the subject of some discussion during cross examination by the Applicant’s counsel.
26. Mr Richards also reported to Dr Young that he sometimes developed difficulty with stairs and slopes and that he can walk 1 - 1.5 km on the flat before shin pain develops.
27. Dr Young described his examination of Mr Richards and states that he did not find any objective evidence of difficulty in walking on the flat, grades or steps although Mr Richards had reported difficulty experienced at a recent permanent impairment assessment.
28. It was found at questioning that Mr Richards reported pain to Dr Young following the mobility test conducted. Dr Young assessed Mr Richards as having zero permanent impairment on Table 9.5 criteria.
Evidence of Dr David Eaton
29. Dr Eaton is an Occupational Physician who examined Mr Richards at the request of the Respondent and produced a report dated 25 May 2006. Dr Eaton gave evidence on behalf of the Respondent. After his assessment of the history and examination of the Applicant, Dr Eaton assigned a total body disability impairment rating of 10% using Table 9.5 of the Guide.
30. Dr Eaton's assessment of Mr Richards included:
A.Rising from seated position to standing;
B.Walking a distance on level terrain, at moderate pace, for ten minutes;
C.Walking up and down a 1 in 4 gradient for a distance of 100 metres, and
D.Walking up and down steps, at a moderate pace, to the equivalent of three flights.
31. Dr Eaton made the following observations in his report:
1.Rising from the seated to standing position was performed efficiently.
2.While walking on grades, no pain was reported (a sensation of significant “tightness” was reported, which limited the pace to slow to moderate); I considered the complaints to be reasonable and appropriate, (leaving aside any issues of pain). I considered that the test was performed with some difficulty; gait remained normal but was slower than was considered to be average.
3.While walking on steps, no pain was reported (a sensation of significant “tightness” was reported, which limited pace to slow to moderate); I considered the complaints to be reasonable and appropriate, (leaving aside any issues of pain). I considered the test was performed with some difficulty; gait became progressively slower and more awkward towards the end of this component of the testing.
4.While walking on distances, no pain was reported (a sensation of mild “tightness” was reported); I considered the complaints to be reasonable and appropriate, (leaving aside any issues of pain). I considered the test was performed without difficulty and gait remained normal throughout.
32. Counsel for the Applicant took issue with Dr Eaton’s evidence in cross-examination with regards to the total distance covered in the test. Dr Eaton guessed that the total distance walked was up to two kilometres while counsel believed it was more like 450 metres after some dubious calculations. The Tribunal is of the belief that a ten minute walk at a moderate pace would cover about 800 metres given that a brisk walk would cover about 1100 metres in ten minutes. It is surprising how Dr Eaton could over-estimate the distance covered by 100%.
Discussion of Mr Richards' evidence
33. The Tribunal accepted Mr Richards as a truthful witness in the main. Cross-examination exposed some inconsistencies in his evidence in chief and also some reluctance to answer questions fully where the answers were adverse to Mr Richards (for example, the distances travelled on particular outings whilst overseas), but these matters did not amount to major inconsistencies or prevent the Tribunal from accepting the basic thrust of Mr Richards' evidence. There were no issues of credit in this case.
Discussion of the medical evidence
34. An occupational physician, Dr Rowe gave evidence on behalf of the Applicant and for the Respondent there appeared a sports medicine physician, Dr Young, a Rheumatologist, Dr Vecchio and an occupational physician, Dr Eaton.
35. Of interest is how each specialist approaches the testing of the criteria in Table 9.5 of the guide. The differences seem to be in how each interprets the disability impairment for distance that separates the 10% level with the 20% level. The distances covered in testing ranged from 200 metres to possibly an approximate 800 metres. The guide gives no indication as to what the required distance to pass or fail this test is and it is left to the clinical judgement of the specialist to decide.
36. In the case of this Applicant one specialist, Dr Rowe, believes there is a whole body impairment of 20% based on Table 9.5 of the Guide but nowhere in his report does he specifically mention his test for distance capability. It would also seem that in his opinion the Applicant’s self report of walking up to 1.5 kilometres does not negate his opinion.
37. Dr Young believes that the Applicant displayed no disability on testing.
38. Dr Vecchio upon testing Mr Richards using a shortish circuit that included the elements to be tested rated, suggested a 10% whole body impairment rating using Table 9.5. His evidence stood up well under cross-examination although his distance testing was marginal. He was a little critical of Dr Rowe’s reported opinion on distance.
39. Dr Eaton assesses the Applicant as having a 10% total body impairment based on table 9.5 of the Guide. His history taking and examination was comprehensive but he would seem to be well out in his distances. His findings are well supported by his examination of the Applicant. Again he has to use clinical judgement in arriving at his conclusions as the guide is rather non specific with regards some of the criteria. Dr Eaton’s report included fair and reasonable critiques of the reports of the two specialists who found levels of impairment other than 10%.
Issue
40. There is one key issue for determination. This is whether the Applicant has a whole person impairment of 20% under Table 9.5 (Limb Function – Lower Limb). The Respondent has already accepted a 10% whole person impairment under Table 9.5. More precisely, this central issue reduces into the fine-grained question whether the Applicant, having difficulty with grades and steps (the necessary and sufficient integers relevant to 10% whole person impairment, is further impaired by having difficulty with distances (which escalates into a 20% whole person impairment).
Applicant’s Submissions
41. Counsel for the Applicant made the following oral and written submissions:
A.The Applicant submitted that medical evidence before the Tribunal could not supplant or substitute for the assessment of the Tribunal of the medical evidence before it: Haugh v Comcare [1999] AATA 906 at [22].
B.The Applicant contended that he had difficulty with grades and steps and distances within the 20% level of Table 9.5. The Applicant contended that the distances to be traversed are those expected of a normal healthy person of the same age as the Applicant (citing Re Whelan and Department of Defence (1997) 47 ALD 383 at 399; Re Morley and Comcare (1996) 40 ALD 725 at 731; and Hemley and Military Rehabilitation and Compensation Commission [2006] AATA 128 at [20]).
C.The Applicant relied on passages from Comcare v Moon [2003] FCA 569 at [45] – [47] in support of their contention that pain can be a cause of difficulty for the purposes of Table 9.5. It was contended that Hemley took Moon one step further and seems to stand to imply that pain on walking indicated a difficulty with distance or some other activity.
D.Watkins and Comcare [2002] AATA 613 was relied upon as a helpful example of the application of the principles relevant to Table 9.5.
E.The Tribunal was urged to accept the evidence of the Applicant is a witness of truth and candour and accepted some propositions that were adverse to his interests. It was contended that the Applicant’s physical limitations such as shuffling, limping and rest stops when walking distances were indicative of having difficulty with distance.
F.The Tribunal was urged to accept the evidence of Mr Ward as a witness of truth whose evidence corroborated that of the Applicant.
G.The Tribunal was urged to discount aspects of the evidence of Dr Vecchio dealing with the calculation of distance for the purposes of Table 9.5. Other aspects of this witness's evidence could be accepted because they indicated that a healthy man of the age of the Applicant should be able to walk several kilometres without difficulty but that if the Applicant was forced to stop and rest at distances of 500 m – 1 km when walking alone at his own pace and at 100m -- 500 m intervals when walking with others, then this was not normal and indicated difficulty with distances.
H.As previously noted, the case of Comcare v Moon (Supra) at [42] – [49] was relied on by the Applicant to support the contention that pain can produce a difficulty with distances, in this context the Applicant argued that on the evidence before the Tribunal he did experience pain in walking distances. The following passages from Comcare v Moon were drawn carefully to the attention of the Tribunal:
[45] The contention of Comcare is that pain which does not prevent or restrict a physical activity at the time of the activity is irrelevant to an assessment of impairment under Table 9.5. That is, it must objectively be seen that the activity is ceased or restricted during its performance to amount to an impairment.
[46] I do not accept that contention. In the first place, I do not consider Jenkinson J in Amorebieta [Comcare v Amorebieta (1996) 66 FCR 83] intended to say that pain experienced during activity is not relevant to the assessment of level of impairment under s 24 of the Guide or under the measure of ‘difficulty’ in Table 9.5. He recognised there may be a relevant ‘voluntary restriction of movement evoked by the onset of pain’ which could evidence or amount to an impairment. That may be by way of comparison with pain which does not in fact impair movement or activity, but which may nevertheless entitle a claimant to compensation under s 27 of the SRC Act. The definitions of relevant terms in the Guide are consistent with those used in s 4 of the SRC Act. ‘Impairment’ is defined to mean ‘the loss, loss of the use, or the damage or malfunction, of any part of the body, or of any bodily system or function or part of such system or function’. The question it posits is whether, objectively, a claimant’s ‘personal efficiency’ in the activities of daily living is adversely affected. The expression ‘the activities of daily living’ is used by way of contrast with ‘lifestyle effects’.
[47] In this matter, the Tribunal accepted Mr Moon has some pathological change to his lower legs (to which his employment contributed, as found by the decision of 12 April 1999). It accepted the condition restricts him in his daily living, consistent with his evidence. The restriction occurs because he suffers pain during and after certain activities. He gave evidence to that effect, which the Tribunal accepted. Hence he avoids those activities when he can. Sometimes he cannot, and suffers the consequences. But his evidence, and the medical evidence, was consistent with the Tribunal’s finding that he ‘has difficulty’ with grades and steps. I do not think the fact that Mr Moon on occasions does climb stairs or ascend slopes means he does not have difficulty with grades and steps. Once the difficulty is found to exist, that the activity is avoided to avoid the experiencing of pain does not make the difficulty any less. In my view, it is a question of fact in each case as to whether pain experienced in activity presents a ‘difficulty’ with that activity, or whether it is simply a consideration going to ‘lifestyle effects’. The Tribunal in this matter decided the pain experienced by Mr Moon, in the light of the findings it made about the condition, amounted to a ‘difficulty’ with grades and steps. In my judgment, that finding was amply available to it. The term ‘difficulty’ in, e.g. Table 9.5, is not a term of art, but carries its ordinary meaning: Comcare v Fiedler [2001] FCA 1810 at [22]; Whittaker v Comcare (1998) 28 AAR 55 at 61.
I.The Applicant asked the Tribunal to set aside their decision under review and to substitute a decision that the Applicant had a whole person impairment of 20% within Table 9.5.
Respondent’s Submissions
42.The Respondent made the following contentions in Counsel’s closing address:
A. The Tribunal should follow what Member Kenny said in Watkins and Comcare (Supra) at [92] about the relationship between pain and difficulty and the meaning of "difficulty". It was contended that this decision was consistent with the Federal Court in Comcare v Moon.
B. Evidence relating to Table 9.5 litigation spans the evidence of the relevant Applicant (including any self-report), medical assessments and expert opinion concerning the accepted medical conditions and the likely results of payments. In this particular case, the Respondent argued that the evidence of Dr Vecchio and Dr Young was to the effect that the particular condition of compartment syndrome equated to a 10% whole person impairment.
C. The Respondent argued that the evidence demonstrated that the tests conducted by Dr Rowe of the Applicant were not as extensive as those of Dr Young and Dr Eaton.
D. The Tribunal should take into account the very careful testing of the Applicant and evidence and methodology undertaken by Dr Vecchio and Dr Eaton, which should be preferred to that of Dr Rowe.
E. The Tribunal should take into account the participation by the Applicant in The Big Day Out in January 2006 where he had to walk between 5 and 6 km and participate as member of an audience/crowd for approximately 12 hours.
F. That the reviewable decision dated 9 September 2005 should be affirmed.
The Legislation
43.The relevant provisions of the Act are as follows
4 Interpretation
(1) In this Act, unless the contrary intention appears:
…
"impairment" means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
"injury" means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
…
…
(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
…"
‘permanent’ means likely to continue indefinitely.
14 Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
19 Compensation for injuries resulting in incapacity
(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
…
44. Section 24 of the Act is activated when an injury to an employee results in permanent impairment. Section 24 provides as follows:
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) ….
(7) Subject to section 25, if:
(a)the employee has a permanent impairment other than a hearing loss; and
(b)Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
45. In Comcare v Roser[2003] FCA 243, Spender J said:
[24] Section 24(1) of the Act is the source of the statutory entitlement to compensation for permanent impairment. As Burchett J noted in Brennan v Comcare (1994) 50 FCR 555, (“Brennan”) “compensation… is paid ‘in respect of the injury’, not in respect of the impairment”, at 556. For a liability to arise there must, in my view, be an injury and it must result in a permanent impairment. A clear cause and effect relationship between the injury and permanent impairment is posited and required.
Tribunal’s Reasons
46. This matter involves the issue whether the Applicant has a whole person impairment of 20% under Table 9.5 of the Guide to the Assessment of the Degree of Permanent Impairment. The Respondent has accepted liability for a 10% whole person impairment.
47. It is not in dispute between the parties, and the Tribunal both accepts and finds on the uncontested evidence before it, that the Applicant has a permanent impairment (that is, an impairment that is likely to continue indefinitely) within the meaning and operation of section 24(2) of the Act. This permanent impairment consists of bilateral compartment syndrome.
48. In terms of the forensic machinations of this case, there were two principal enquiries. First, does the evidence disclose support a finding or assessment that the Applicant has a "difficulty" in the relevant sense? Secondly, does the difficulty relate to not only grades and steps but also to distances?
49. The meaning of "difficulty" in Table 9.5 has itself caused difficulty and this proved to be the case in the hearing of this appeal. Concerning this matter, Member Kenny in Watkins and Comcare (Supra) conducted the following comprehensive review which justifies repetition:
[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’." [Emphasis added]
50. The apogee of Member Kenny's reasoning concerning difficulty is expressed in para [90] where the learned Member said:
“…[An] 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.”
51. This Tribunal agrees with that exegesis for the most part except that portion which deals with "grades, steps and/or distances" (emphasis added). Re Jones and Department of Defence (AAT 13357, 8 October 1998) at [38] reinforces the proposition that a 20% whole person impairment assessment under Table 9.5 requires difficulty with grades and steps and distances (emphasis in original). The Tribunal in that decision noted Re Nguyen and Comcare Australia (AAT 10133, 18 April 1995) where the Tribunal noted that the elements or integers identified in Table 9.5 in each impairment percentage description, for example, “grades, steps and distances”, must be read conjunctively.
52. Whittaker v Comcare (1998) 86 FCR 532; (1998) 28 AAR 55 (a decision of the Full Court of the Federal Court) reinforces the understanding of difficulty under Table 9.5 that it means if a person found it troublesome or not easy to do tasks, a difficulty exists.
53. Saxton and Military Rehabilitation and Compensation Commission [2005] AATA 1059 adopted the reasoning of the Full Court of the Federal Court in Comcare v Fiedler (2001) 115 FCR 328 in reviewing another decision under Table 9.5 on difficulty. The Tribunal said:
“[27] A similar approach to that in Fiedler (supra) was followed in the Tribunal case of Carman and Comcare [2002] AATA 946 in relation to a case for assessment under Table 9.5. Member Kenny noted the Applicant would have difficulty if he found it troublesome or not easy to negotiate grades, steps and/or distances. As well, the limitation need not be significant or substantial but it must be more than slight or minimal. The Tribunal accepted the submission that pain may be taken into account as the source of difficulty in performing an activity and referred to other Tribunal cases where this had been considered. We agree that, while pain may be taken into account as a source of difficulty in performing an activity, that is not to say that the mere presence of pain, without more, means that difficulty is experienced.”
54. Some forensic debate in this case was concerned with the relationship between pain and difficulty. In Watkins and Comcare (Supra), the Tribunal said:
[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 ... 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.
55. In Millen and Military Rehabilitation and Compensation Commission [2005] AATA 555, Member Kenny adhered to what he said in Watkins at [90] – [92] about the relationship between pain and difficulty, and in particular in support of the proposition that the experiencing of pain can constitute a difficulty for the purposes of Table 9.5.
56. The Tribunal considered that it was important not to treat "difficulty" within Table 9.5 as some kind of element standing alone. Instead, difficulty is connected with a descriptor of a level of impairment, which for the 20% level of impairment is "Can rise to a standing position and walk BUT has difficulty with grades, steps and distances." In other words, the referent for difficulty is the capacity to travel or engage with walking on surfaces involving grades, steps and distances. In this case, the issue concerned whether or not the Applicant was able to traverse "distances". In Hemley and Military Rehabilitation and Compensation Commission [2006] AATA 128 three members of this Tribunal said:
“[20] The extent of distances to be considered when applying Table 9.5 of the Guide are those that are expected to be transversed by a normal healthy person of the same age as the Applicant. That was the approach in Re Whelan and Department of Defence (1996) 47 ALD 383 at 399 and Re Morley and Comcare (1996) 40 ALD 725 at 731.”
57. In Lidgett and Comcare (Department of Veterans' Affairs) [2003] AATA 910, Member Webb said:
[44] In Comcare v Fielder [sic] [2001] FCA 1810, Drummond, Kiefel and Dowsett JJ discussed the meaning of the word “difficulty” in relation to the phrase “difficulty with digital dexterity”, that is used at Table 9.4 of the approved Guide. Their Honours observed at [22]:
“The word “difficulty”, like most ordinary English words, has no fixed meaning but is, as the Tribunal observes, 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.
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 paragragh 1 of Table 9.4.”
[45] Following the construction outlined in Fielder [sic] (supra) and adopting the most favourable interpretation to the Applicant, consistent with Whittaker v Comcare (1998) 86 FCR 532, the Applicant in this case will have “difficulty” if he finds it troublesome or not easy to negotiate grades and steps, or grades and steps and distances. It is not necessary for the limitation to be significant or substantial but it must be more than slight or minimal (see Re Nuss and Comcare [2002] AATA 170 at [60]; Re Watkins and Comcare [2002] AATA 613 at [90]; Re Carman and Comcare [2002] AATA 946 at [48]).
[46] The Tribunal pauses to note that the phrases set out at paragraphs 1 and 2, of Table 9.5, both involve conjunctive elements that must be read together. The difficulty must pertain to each of the activities that are specified and no less.
58. The evidence of the Applicant was that he has to slow down when walking distances of approximately 2 - 3 km and lag behind the group he was travelling with.
59. Medical evidence before this Tribunal in and of itself is not determinative of the ultimate issue for resolution, particularly when (as happens frequently) the medical evidence is fragmented along fault lines corresponding to the adversarial positions of the parties (compare Rogers v Whittaker (1992) 175 CLR 479 where the High Court of Australia ruled that that as a general principle courts and, by extension, tribunals must make their own decisions about issues of medical liability and not subordinate to these decisions to the body of expert medical opinion).
60. In this case, the medical evidence was polarised, particularly in terms of the medical opinions expressed in terms of satisfaction of the Table 9.5 20% whole person permanent impairment standard. This makes it especially important for the Tribunal to consider the totality of the evidence, not to simply consider the medical evidence alone or in isolation.
61. The Tribunal recalls what the Federal Court said in Comcare v Moon (Supra) at 171 about the effect of pain and its relationship with the statutory integer of "difficulty"
In my view, it is a question of fact in each case as to whether pain experienced in activity presents a ‘difficulty’ with that activity, or whether it is simply a consideration going to ‘lifestyle effects’. ... The term ‘difficulty’ in, e.g. Table 9.5, is not a term of art, but carries its ordinary meaning: Comcare v Fiedler [2001] FCA 1810 at [22]; Whittaker v Comcare (1998) 28 AAR 55 at 61.
62. The Tribunal finds the evidence of Dr Rowe as the least helpful in that it arrives at a conclusion which is only partly based on material discovered at examination of the Applicant. Dr Rowe used his clinical judgement in arriving at his opinion but needed to back it up by findings and a comment on the Applicant’s reported ability to walk up to 1.5 kilometres. Was this discounted?
63. The opinions of Dr Vecchio and Dr Rowe are based on clinical judgement that is formed by a history taking and a well structured routine examination even though not absolute for distance. The testing and findings are clearly described and held up well under cross-examination except for Dr Eaton’s stumble on distance covered.
64. Dr Young’s reported opinion may have been arrived at on a day when the Applicant was at his best but in the opinion of the Tribunal there is sufficient weight of evidence that Mr Richards has difficulty with stairs and grades.
65. In the view of the Tribunal the specialist medical reports support a conclusion of a total body impairment rating of 10% using Table 9.5 of the Guide. Further the Tribunal is of the opinion that this level of 10% is supported by the type of employment undertaken by Mr Richards and his walking ability displayed earlier this year at “The Big Day Out”.
66. The Tribunal considered carefully all of the medical evidence before it and also the evidence of the Applicant. The Tribunal is of the opinion that the total state of the evidence before it enables the Tribunal to reach the conclusion that the Applicant has difficulty with stairs and with grades but not with distances.
Tribunal’s Conclusion
67. Based upon the material before it, and for these Reasons, the Tribunal concludes that the correct decision is that the decision of the Respondent of 5 September 2005 to the effect that the Applicant has a whole person impairment of 10% within Table 9.5 of the Guide to the Assessment of the Degree of Permanent Impairment should be affirmed.
Costs
68. Neither party addressed the Tribunal concerning costs, and nor were any supplementary submissions concerning costs made to the Tribunal through the Registry after the hearing. Costs are governed by section 67 of the Safety, Rehabilitation and Compensation Act 1988.
Disposition
69. For these reasons, the Tribunal affirms the decision of the Respondent dated 5 September 2005.
I certify that the 69 preceding paragraphs are a true copy of the reasons for the decision of Member S C Fisher and Member Dr G J Maynard
Signed:. Leisa Pendle
Legal Research OfficerDates of Hearing 29 and 30 May 2006
Date of Decision 2 February 2007
Counsel for the Applicant Mr RS Ashton
Solicitor for the Applicant D’Arcys Solicitors
Counsel for the Respondent Mr CJ Clark
Solicitor for the Respondent Dibbs Abbott Stillman
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