Rogers and Military Rehabilitation and Compensation Commission
[2007] AATA 1545
•13 July 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1545
ADMINISTRATIVE APPEALS TRIBUNAL )
)N2006/1214
GENERAL ADMINISTRATIVE DIVISION ) Re COREY ROGERS Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal: Ms G Ettinger, Senior Member
Dr J Campbell, MemberPlaceSydney
Date 13 July 2007
Decision
The Tribunal affirms the decision under review.
Pursuant to section 67(8) of the Safety Rehabilitation and Compensation Act 1988 costs may not be awarded.
..........[sgd]...........
Ms G Ettinger Senior Member
CATCHWORDS
Compensation – liability accepted for right knee injury – 10% permanent impairment accepted - Applicant arguing that he is eligible for 20% permanent impairment – medical evidence suggests symptomatology reported does not match physical signs - decision under review affirmed.
Safety Rehabilitation and Compensation Act 1988 ss 24 & 27
Comcare, Guide to the Degree of Permanent Assessment, Table 9.2, 9.5
Bell v Military Rehabilitation and Compensation Commission [2006] AATA 864
Comcare v Moon (2003) 75 ALD 160
Watkins v Comcare [2002] AATA 613
REASONS FOR DECISION
13 July 2007 Ms G Ettinger, Senior Member
Dr J Campbell, Member
BACKGROUND
1. Mr Rogers is 31 years old, and enlisted in the Royal Australian Navy (“the Navy”) aged 20, as a marine technician, in May 1996. He told us that he completed the training, which took some 18 months, without difficulty, and that it entailed quite demanding physical activity such as marching, running and various sports. Mr Roger’s later duties entailed heavy work, lifting of heavy pumps and other equipment, and working in confined spaces.
2. Mr Rogers said that from approximately 2002, he had episodes of minor pain in his right knee, and that by late 2002 he had stiffness and pain in his right knee. He said that he treated this with anti-inflammatories and physiotherapy.
3. There was some inconsistency between the oral evidence given by Mr Rogers and the documentary evidence before us in various aspects of the case, including the frequency of attendance at physiotherapy. A significant instance of inconsistency in the evidence also involved, on the one hand, Mr Rogers’ oral evidence that his knee injury occurred when he hit his right knee on a ladder on 18 March 2003 while carrying a heavy pump, and on the other, the claim for compensation he lodged (PT3), where he stated that “no single event contributed to knee pain”, and in reply to the question “How did the injury occur?” replied “believed from ladders and overuse”.
4. We also found that there were inconsistencies in Mr Roger’s reporting of the knee pain he suffered as a young person. In his oral evidence he said that the knee pain resolved spontaneously when he reached the age of 16 years or so, whereas Dr Maxwell who examined the Applicant on behalf of the Respondent, recorded a history that at the age of 17 Mr Rogers had been playing football when he developed pain in his right knee. Mr Rogers told us that he then had no problems with his knees until his time in the Navy.
5. Mr Rogers also told us that due to his knee problems, he can now no longer participate in his favoured sports, being sail boarding, surfing and rugby. He said that he can only swim, and that he does upper body training at home.
6. By way of background, we noted that Mr Rogers suffered a dislocation injury to his left shoulder in 1996 whilst surfing (a specified Navy sport), experienced two episodes of right shoulder dislocation which were treated conservatively, and then had a dislocation on 4 October 2003 which did not reduce spontaneously, and was reduced under anaesthetic. He subsequently underwent arthroscopic labral stabilisation on 4 November 2003. (PTT8).
7. Mr Rogers told us that he left the Navy on 6 May 2004. He said that he was not happy in the Navy and had wanted to join the police force, a family tradition, but was disappointed he could not do so due to his knee injury. He joined Port Botany at a bulk chemical storage facility as operations manager after leaving the Navy, and explained he did a desk job, attending meetings, writing reports and conducting risk assessment. Mr Rogers said that in connection with the risk assessments, he had to walk to carry out site inspections, explaining that the distances were 50 - 100 metres, and that he might have to do that twice sometimes. If there were steps he experienced difficulty and held onto railings, which was embarrassing, he said. Mr Rogers said that he had no further treatment after leaving the Navy, and that his right knee was worse, stiff and swelling.
8. Mr Rogers agreed that he had told Dr Maxwell he could walk the two kilometres between home and attending to shopping, and said he did it once a week or fortnight. He said that he walked more slowly than his wife, and noted that he walked favouring his right leg, and that after such a walk, he had pain, and his right knee was stiff and swollen for two to three days.
9. We accepted that the Respondent did not argue against the decision it had made to accept Mr Rogers for a 10% permanent impairment pursuant to the Comcare Guide to the Assessment of Degree of Permanent Impairment, (“the Comcare Guide”), but we were not satisfied from the medical evidence that he suffers 20% permanent impairment pursuant to the Comcare Guide. Accordingly we affirmed the decision of the Respondent not to award 20% for permanent impairment for Mr Rogers’ right knee.
10. Our reasons follow.
ISSUE BEFORE THE TRIBUNAL
11. The issue before the Tribunal is whether Mr Rogers has an entitlement to 20% for permanent impairment of patello-femoral dysfunction of his right knee pursuant to sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 (“the Act”). In considering the claim, we had to apply Tables 9.2 and 9.5 of the Comcare Guide, and make a decision whether Mr Rogers’ condition gives rise to difficulty with grades, steps and distances in order to qualify for a 20% impairment.
LEGISLATIVE FRAMEWORK
12. The relevant legislation in this matter is the Safety Rehabilitation and Compensation Act 1988, in particular sections 24 and 27 which deal with permanent impairment.
THE COMCARE GUIDE
13. Tables 9.2 and 9.5 of the Comcare Guide are relevant.
WHETHER MR ROGERS HAS AN ENTITLEMENT TO 20% FOR PERMANENT IMPAIRMENT OF PATELLO-FEMORAL DYSFUNCTION OF HIS RIGHT KNEE
14. We noted Mr Rogers’ oral evidence that he felt stiffness and a sore right knee commencing in late 2002, followed by an incident where he banged his knee on a ladder while carrying a heavy pump on 18 March 2003. We were mindful however of what he wrote in his claim form which was at PT3, which was, “no single event contributed to knee pain”. We were mindful of Mr Rogers’ evidence that he could not recall what treatment he had for his knee as a result of the incident on 18 March 2003, but recalled he did not have any time off work. He said that he suffered another incident one night where his knee gave way on a stairway, and he hit and bruised his knee. He told us that he did not report the second incident.
15. As already noted above, the Respondent has accepted that Mr Rogers has 10% permanent impairment of the right knee awarded for patello-femoral dysfunction of the right knee. We are satisfied from the evidence before us that that finding should not be disturbed.
16. We moved therefore to address Mr Rogers’ claim that he has an entitlement to 20% for permanent impairment of patello-femoral dysfunction of his right knee pursuant to sections 24 and 27 of the Act.
17. We considered Mr Rogers’ situation in regard to Table 9.2.
“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 ankle
OR
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
…”
18. Table 9.2 deals with loss of function. In order to come within the 10% rating, Mr Rogers would have to have (with specific regard to his knee), “loss of less than half normal range of movement of hip or knee”. We were satisfied that Mr Rogers has a 10% permanent impairment. To come within the 20% rating, he would have to have “loss of half normal range of movement of hip or knee”. In order to consider his position, we reviewed the relevant medical evidence.
19. We did not have the report of Dr Dickison, an orthopaedic surgeon who reviewed Mr Rogers on 3 July 2003. However Dr Vecchio referred to Dr Dickison recording in 2003 that Mr Rogers had suffered four months of anterior knee pain without a specific injury, and noted that Mr Rogers had full range of motion at that time.
20. Dr Barold reported that right knee flexion was reduced to 130 degrees when compared with 150 degree flexion in the left knee, and that there was no extension lag. He did however notice some right knee thickening. He also reported that both knees were stable and no crepitus was evident. Dr Barold measured a 1.5 centimetre right calf deficit as compared to the left side, and a one centimetre difference between the circumferences of the left and right knees. He commented that reflexes and sensations were present and equal in both legs with no neurological deficit being evident.
21. Dr Vecchio reported that the right knee range of motion was full on his examination, adding that the knee was stable without an effusion. He noted some right quadriceps muscular wasting but did not report doing measurements.
22. Dr Parker reported his examination in April 2004 as follows: “.. . he stands with normal alignment and walks with a normal gait. His patella tracks centrally with only some minor soft crepitus. He has good quadriceps bulk. He has no effusion. He has a range of motion from full extension to 135 degrees of flexion. … Straight leg raise is negative bilaterally and distal neurovascular function is normal bilaterally.”
23. Dr Maxwell wrote that: “Significant chondromalacia patella .. is always associated with significant wasting of the quadriceps muscles secondary to disuse. Mr Rogers quadriceps muscles are not significantly wasted. … The objective examination of his knee shows no abnormality….” Dr Maxwell did not find that Mr Rogers had a condition of his right knee which could be verified objectively which would cause him any difficulty with grades, steps or distances.
24. In considering the medical evidence, we could not be satisfied that Mr Rogers suffered 20% permanent impairment pursuant to Table 9.2, as the doctors who examined him, and whose reports we have referred to in the paragraphs above, did not find that he had “loss of half normal range of movement of hip or knee”.
25. We then moved to consider Table 9.5 of the Comcare Tables, and have already noted above that what Table 9.5 requires is that the person “can rise to a standing position and walk BUT has difficulty with grades, steps and distances.”
“TABLE 9.5: Limb Function - Lower Limb
(Percentage Whole Person Impairment)
%
DESCRIPTION OF LEVEL OF IMPAIRMENT
10
Can rise to standing position and walk BUT has difficulty with grades and steps
20
Can rise to standing position and walk BUT has difficulty with grades, steps and distances
30
Can rise to standing position and walk with difficulty BUT is limited to level surfaces
50
Can rise to standing position and maintain it with difficulty BUT cannot walk
65
Cannot stand or walk
…”
26. Mr Rogers gave evidence of difficulties he has in negotiating grades and steps. He told us that after he left the Navy on 6 May 2004, he joined Port Botany as operations manager at a bulk chemical storage facility. He described it as a desk job, attending meetings, writing reports and conducting risk assessment. In connection with the latter, Mr Rogers said that he had to walk to carry out site inspections, explaining that the distances were 50 - 100 metres, and that he might have to do that twice sometimes. He said that where there are steps, he experiences difficulty, and has to hold onto railings which he finds embarrassing. Mr Rogers said that he has had no further treatment after leaving the Navy, and that his right knee is worse, stiff and swelling.
27. We have already agreed with the Respondent’s earlier acceptance of liability for 10% permanent impairment on the basis that Mr Rogers has difficulty with grades and steps. This was observed by Drs Barold and Vecchio.
28. In support of his claim that he has difficulties with distances, and arguing for the award of 20% for permanent impairment of his right knee, Mr Rogers said in his statement (Exhibit A1), that he has a reduced range of mobility and cannot walk as fast or as far as he could pre-injury. In his oral evidence, he talked about the site inspections at his present employment, as described above. Mr Rogers agreed that he had told Dr Maxwell he could walk the two kilometres between home and attend to shopping, which he said he did once a week or fortnight. He said that he walked more slowly than his wife, and noted that he walked favouring his right leg, and that after such a walk, he had pain, and his right knee was stiff and swollen for two to three days.
29. We were mindful that there were discrepancies in the distances the doctors reported that Mr Rogers had told them he could walk. We have summarised their observations below.
· Dr Vecchio referred to Dr Dickison, an orthopaedic surgeon who reviewed Mr Rogers on 3 July 2003, (and whose report we did not have), recording in 2003 that Mr Rogers had suffered four months of anterior knee pain without a specific injury, and noted that Mr Rogers had full range of motion at that time.
· Dr Barold, who described himself as a general practitioner with specialist training in musculo-skeletal disorders, reported on 24 August 2005 (TPTT8/20) that he observed Mr Rogers to have a right antalgic gait when mobilising. Dr Barold noted right knee pain when Mr Rogers rose onto his toes, and arising from the squat position, a 20 degree loss of flexion in the right knee when compared with the left, and a 1.5 cm right calf deficit when compared to the left, when measured 10 cms below the patella. Dr Barold reported that following the examination, he observed Mr Rogers ascending and descending the 20 steps leading to his rooms, noting that the Applicant needed to use the left hand railing, and that he “altered his gait with a left-sided lean to avoid right-sided weight bearing”. Dr Barold stated that he then accompanied Mr Rogers into the street, and observed him walking at a pace slower than he himself walked. He said that he observed Mr Rogers walking the 40 metres from his rooms to the corner, and 50 metres back and up. He also reported observing difficulties Mr Rogers had with developing “an increasing right antalgic gait over the distance”. Dr Barold assessed Mr Rogers at 20% pursuant to Table 9.5. In his oral evidence, Dr Barold opined that the bruising Mr Rogers had described to him as a result of the incident he suffered was significant, and had caused internal damage to the lining of the knee joint which caused inflammation and pain without necessarily being detectable on imagery or ultra sound. Dr Barold did not consider that Mr Rogers was exaggerating his disabilities.
· Dr Vecchio, a rheumatologist, reported on his examination of Mr Rogers on 8 December 2005 (T11). He referred to the history he had taken of Mr Rogers having periodic trouble with his knee, “apparently dating since his childhood”. In reply to questions from Dr Campbell of the Tribunal about that, Dr Vecchio said that the knee problem could be aggravated, and indeed was, in this case, by Mr Rogers’ work. Dr Vecchio reported that the right knee range of motion was full, on his examination, adding that the knee was stable without an effusion. He noted some right quadriceps muscular wasting but did not report doing measurements. He also reported that: “On circuitry, Mr Rogers was able to perform the manoevres required of 100 metres on the flat, but had difficulty with grades and steps”. Dr Vecchio assessed 0% pursuant to Table 9.2 and 10% pursuant to Table 9.5. Notwithstanding being referred to Dr Maxwell’s report where he had recorded that Mr Rogers could walk two kilometres, Dr Vecchio maintained that 100 metres was a fair test, adding that the distance was not specified in the guidelines.
· Dr Parker, a knee surgeon, wrote on 14 April 2004 (PTT24/88), that Mr Rogers reported onset of symptoms in 2002 “without any obvious provoking activity”. Dr Parker also noted that treatment consisted of a single episode of physiotherapy 18 months previous to his consultation … commenting that “this was not a particularly intensive trial of treatment”. Dr Parker stated that he explained the nature of the pathology to Mr Rogers, explaining it may continue to give him activity related symptoms, and adding “I would not imagine that this would be a major source of pain or disability for him in the future”.
· Dr Maxwell, an orthopaedic surgeon examined the Applicant on behalf of the Respondent and reported on 14 December 2006. He opined that Mr Rogers had 0% impairment pursuant to Table 9.5, stating that the Applicant did not have a condition of his right knee which could be verified objectively which would cause him any difficulty with grades, steps or distances. Dr Maxwell stated that Mr Rogers told him he could walk for two kilometres, and when tested was able to ascend and descend eight flights of steps without significant difficulty. We noted that notwithstanding Dr Maxwell’s assessment of 0% impairment, the Respondent did not wish to resile from the 10% impairment for which it had accepted liability.
30. We considered the meaning of difficulty and consulted various dictionaries as follows:
“The Macquarie Dictionary [Second Edition]
1. The fact or condition of being difficult.
2. An embarrassing situation, especially of financial affairs.
3. A trouble.
4. A cause of trouble or embarrassment.
5. Reluctance; unwillingness.
6. A demur; objection.
7. That which is hard to do, understand, or surmount.
The New Shorter Oxford English Dictionary [1993] - top#top
1. The quality, fact, or condition of requiring effort or skill: “[He] twisted round on the sofa, slowly and with difficulty”
2. Reluctance, unwillingness; an objection: “Her Majesty…with some difficulty…granted the man to be levied”
3. Something difficult; a hindrance; an obscure point: “The jeep…solved all our transport difficulties”
4. Perplexing character, obscurity: “A book whose difficulty had offended indolence”
5. A condition in which action or progress is difficult, especially a shortage of money: “A serious difficulty occurred between him and his wife on this very point.”
31. We were mindful that the concept of difficulty has been considered many times in compensation matters. By way of example we noted that the case of Comcare v Moon (2003) 75 ALD 160 was relied on by the Applicant in Bell v Military Rehabilitation and Compensation Commission [2006] AATA 864 to support the contention that pain can produce a difficulty with distances, with the Applicant arguing that on the evidence before the Tribunal he did experience pain in walking distances. The Tribunal said:
“[47] 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’. … 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.”
32. We also noted that in Watkins v Comcare [2002] AATA 613, the Tribunal stated as follows:
“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.”
33. We considered the concept of difficulty in relation to Mr Rogers, and agreed he has difficulty with grades and steps, but were not satisfied regarding his claims about difficulties with “distances” because he had been inconsistent with his evidence about his walking to the various doctors who examined him, as detailed above.
- top#topCONCLUSIONS
34. In coming to a conclusion we accepted that notwithstanding the evidence of Dr Maxwell in which he reported that Mr Rogers has 0% permanent impairment, the Respondent did not wish to resile from the 10% impairment for which it had accepted liability.
35. Permanent impairment is considered pursuant to sections 24 and 27 of the 1988 Act.
“Section 24 Compensation for injuries resulting in permanent impairment
(1)Where an injury to an employee results in permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2)For the purposes 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.
….
Section 27 Compensation for non-economic loss
(1)Where an injury to an employee results in 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.
….”
36. We are satisfied, notwithstanding some inconsistency in reporting the childhood problems and the mode of injury, that Mr Rogers’ evidence and the medical evidence indicate the Applicant suffers difficulties with grades and steps. He satisfies the 10% level of disability specified for permanent impairment in Tables 9.2 and 9.5 of the Comcare Guide.
37. We then considered what difficulties, if any, Mr Rogers has with walking distances. We were mindful of Mr Rogers’ evidence that he walks 50 – 100 metres sometimes twice a day as part of his job. We noted that Dr Barold reported observing difficulties Mr Rogers had with developing “an increasing right antalgic gait over the distance”, and that the Applicant told him he could walk one kilometre, and in fact walked 500 metres to Dr Barold’s rooms.Dr Vecchio reported that on circuitry, Mr Rogers was able to perform the manoevres required of 100 metres on the flat, and considered that, given distance was not specified, the distance of 100 metres provided a fair test. We noted that Mr Rogers agreed he had told Dr Maxwell (in 2006), and Dr Vecchio (in 2005), that he could walk for two kilometres, and noted Dr Maxwell’s report that when tested he was able to ascend and descend eight flights of steps without significant difficulty. Mr Rogers concluded by agreeing to us he could walk two kilometres.
38. We were mindful also that whilst Mr Rogers was referred to physiotherapy in 2003, the fact remains that he only ever attended three sessions. We noted that Dr Parker, the knee surgeon who examined Mr Rogers, wrote on 14 April 2004, (PTT24/88), that treatment consisted of a single episode of physiotherapy 18 months previous to his consultation, and commented that “this was not a particularly intensive trial of treatment”. We were mindful also of Mr Rogers’ evidence that his present employer has offered physiotherapy which he has not taken up, indicating perhaps that his condition is not as serious as he would like the Tribunal to accept. We were mindful also of Dr Maxwell’s opinion that Mr Rogers’ “alleged symptoms do not correlate with the physical signs.”
39. We have noted all the evidence with regard to what distances the Applicant can manage, and what difficulties he reports. We noted Mr Rogers’ agreement that he told Dr Maxwell he can walk two kilometres, and noted that he said the two kilometre walk causes him swelling which takes two to three days to settle. We accept that Mr Rogers has to walk as part of his job, and that he has difficulties with grades and steps to the extent of 10% permanent impairment, but prefer the evidence of Drs Vecchio and Maxwell who recorded that Mr Rogers can walk two kilometres, notwithstanding Dr Vecchio considers 100 metres is a fair test. We are accordingly satisfied that Mr Rogers is not permanently impaired pursuant to the Comcare Guide with regard to distances to the extent of 20%. We are not satisfied that Mr Rogers suffers difficulties with distances as he claims. His impairment is 10% pursuant to the Comcare Guide.
DECISION
40. The Tribunal affirms the decision under review.
41. Pursuant to section 67(8) of the Safety Rehabilitation and Compensation Act 1988 costs may not be awarded.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member & Dr J Campbell, Member
Signed: ………….[sgd]…………
AssociateDate of Hearing 31 May 2007
Date of Decision 13 July 2007
Solicitor for the Applicant D’Arcys Solicitors
Counsel for the Applicant Mr G Wilson
Solicitor for the Respondent Australian Government Solicitor
Counsel for the Respondent Mr B Kelly
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