Romanov-Hughes and Comcare
[2000] AATA 394
•22 May 2000
DECISION AND REASONS FOR DECISION [2000] AATA 394
ADMINISTRATIVE APPEALS TRIBUNAL ) No. V1998/1379
) V1998/1398
GENERAL ADMINISTRATIVE DIVISION ) V1999/494
Re ALEXANDER ROMANOV-HUGHES
Applicant
And COMCARE
Respondent
DECISION
Tribunal Mr B.G. Gibbs, AM, Senior Member
Date22 May 2000
PlaceMelbourne
Decision The Tribunal decides as follows: In respect of Application No. V1998/1379: (a) That the reviewable decision dated 27 November 1997 be set aside; (b) That the determination dated 14 August 1997 be varied, so as to provide that the applicant is entitled to compensation pursuant to subsection 16(1) of the Safety, Rehabilitation and Compensation Act 1988 ("the Act"), for physiotherapy received between 20 May 1997 and 8 July 1997, together with compensation pursuant to section 19 of the Act, for absences to attend for such treatment. In respect of Application No. V1998/1398: (a) That the reviewable decision dated 25 March 1998 be set aside; (b) That the determination dated 7 January 1998 be varied so as to provide that the respondent is liable to pay compensation to the applicant for the purposes of special footwear. In respect of Application No. V1999/494: That the decision under review is affirmed. In respect of costs: That costs are to be as agreed between the parties or, where there is no agreement, as taxed by the Registrar.
(Sgd.) B.G. GIBBS
Senior Member
CATCHWORDS
COMPENSATION – physiotherapy – cost of special footwear – incapacity for work.
Words and Phrases: "special footwear"
Safety, Rehabilitation and Compensation Act (1988) ss. 4, 14, 16, 19.
REASONS FOR DECISION
22 May 2000 Mr B.G. Gibbs, AM, Senior Member
Introduction
Mr Alexander Romanov-Hughes, the applicant in these proceedings, has applied to this Tribunal for review of three reviewable decisions made pursuant to the Safety, Rehabilitation and Compensation Act 1988 ("the Act").
The applications for review are numbers V1998/1379; V1998/1398; and V1999/494.
The reviewable decisions with which the applications for review are concerned, are as follows:
V1998/1379 – Mr Romanov-Hughes has applied for review of the reviewable decision of the respondent dated 24 November 1997, which affirmed the previous determination dated 14 August 1997, that the respondent is not liable to pay compensation in respect of incapacity benefits for the purpose of Mr Romanov-Hughes attending physiotherapy treatment in accordance with section 16 of the Act;
V1998/1398 – Mr Romanov-Hughes has applied for review of the reviewable decision of the respondent dated 25 March 1998, which affirmed the previous determination dated 7 January 1998, that the respondent was not liable to pay compensation for the purpose of special foot wear under any provisions of the Act;
V1999/494 – Mr Romanov-Hughes has applied for review of the reviewable decision of the respondent dated 11 March 1999, which affirmed the previous determination dated 13 November 1998, that the respondent is not liable to pay compensation to Mr Romanov-Hughes for incapacity for the period 20 July 1998 to 30 November 1998.
It is convenient at this point to record that during the hearing the respondent conceded the claim which is the subject of application for review V1998/1379. As indicated, the claim is in respect of absences from work to attend physiotherapy for a left ankle joint sprain condition which has been accepted. The condition arises from a claim made on 23 June 1994.
Being satisfied that the concession is properly made the Tribunal will:
(a) set aside the reviewable decision dated 24 November 1997; and
(b)vary the determination dated 14 August 1997, so as to provide that Mr Romanov-Hughes is entitled to compensation pursuant to subsection 16(1) of the Act, for physiotherapy treatment received between 20 May and 8 July 1997, together with compensation for payment pursuant to section 19 of the Act for absences to attend for such treatment.
As indicated, application V1998/1398 relates to a claim for compensation in respect of special footwear. There are two claims relating to the feet. The original claim, dated 23 June 1994, was for compensation for sprained left ankle. The other claim, dated 12 November 1996, was for compensation in respect of flat feet.
Again as indicated, the application for review V1999/494 concerns a claim for incapacity for the period 20 July 1998 to 30 November 1998, as a result of the left ankle condition. Although the determination dated 30 November 1998 denied payment of compensation for incapacity, liability was accepted for surgery for "exploration of the talo-navicular joint, the spring ligament and tibialis posterior tendon".
Contentions of the ApplicantIn a Statement of Facts and Contentions lodged on behalf of Mr Romanov-Hughes, it is contended as follows:
(a)That he requires a special shoe with stiffered soles and fitted to accommodate both his foot and moulded arch support, as a consequence of his compensable left ankle condition;
(b)That without the use of modified shoes and moulded insoles, his hind foot pain and dysfunction would be expected to progressively deteriorate and give rise to incapacity for employment.
(c)That as a consequence of his compensable left ankle condition, he was totally incapacitated for the period in dispute, being from 20 July 1998 to 30 November 1998, having regard to the following:
(i)The deteriorating left ankle condition;
(ii)The difficulty, by reason of the ankle condition, which he experiences in commuting to and from work, and in undertaking duties which required walking and standing from time to time; and
(iii)His inability to mobilise comfortably because of the respondent's failure to fund suitable footwear.
Contentions of the Respondent
In a Statement of Facts and Contentions lodged with the Tribunal the respondent contended as follows:
(a)In respect of application V1998/1398, that the respondent is not liable to pay compensation for the "special shoes" sought by Mr Romanov-Hughes in accordance with the Act. The respondent further contended that the need for special shoes, if any, is required to assist Mr Romanov-Hughes' non-compensable condition, namely flat feet; bilateral hallux rigidis, and constitutional varicose veins.
(b)Further, and in the alternative, should Mr Romanov-Hughes require special shoe wear, which the respondent does not admit but expressly denies, then the respondent contends that special shoe wear is not required and standard shoe wear will accommodate the needs of Mr Romanov-Hughes.
(c)In respect of application V1999/494, that from 20 July 1998 to 30 November 1998, Mr Romanov-Hughes was not incapacitated as a result of the condition sustained from his employment and that the respondent is therefore not liable to pay compensation to him under section 19 of the Act.
(d)That, inter-alia, Mr Romanov-Hughes' non-compensable conditions were the cause of his partial and/or total incapacity.
Representation
Mr C.D. Johnson, of Counsel, appeared for Mr Romanov-Hughes. Mr M. McInnis, of Counsel, appeared for the respondent.
MaterialThe Tribunal had before it documents ("the T documents") lodged by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, in respect of each of the applications for review.
Other material, to some of which it shall be necessary to refer, was also received into evidence during the hearing.
WitnessesMr Romanov-Hughes gave evidence at the hearing. The other witnesses to give evidence were:
Dr H.S. Sutcliffe, who practices as an Occupational Physician;
Dr W.F. Glaser, who practices as a Consultant Psychiatrist;
Mr T.K. Lammens, who is employed as a Client Service Officer with the Civilian Personnel Administration Centre, Department of Defence;
Dr I.A. Shumack, who practices as an Orthopaedic Surgeon;
Ms L.A. Jemison, who until about two months ago was employed as the Rehabilitation Case Manager, Department of Defence in Southern
Victoria;
Dr P.L. Colville, who practices in the field of Rehabilitation Medicine;
Ms H. Thompson, who was Mr Romanov-Hughes' Team Leader;
Dr W.H.B. Edwards, an Orthopaedic Surgeon with a special interest in foot and ankle surgery;
Dr P.J. Mutton, who practices as a Consultant Occupational Physician.
Legislation
Subsection 14(1) of the Act provides that the respondent is liable to pay compensation in accordance with the Act, in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Subsection 4(1) of the Act states that:
" '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."
Subsection 4(1) also states that:
" 'disease' means:
(a)any ailment suffered by an employee; or
(b)the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation."
" 'ailment' means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)."
" 'aggravation' includes acceleration or recurrence."Section 19 of the Act provides the basis upon which compensation is to be paid to an employee who is incapacitated for work as a result of an injury.
ChronologyThe Statement of Facts and Contentions lodged on behalf of Mr Romanov-Hughes sets out a chronology of facts which are said to be relevant to his claims.
The facts, which are as follows, were put to and confirmed as correct by Mr Romanov-Hughes in examination-in-chief:
1.Mr Romanov-Hughes is 50 years of age having been born on 28 June 1949.
2.Mr Romanov-Hughes commenced employment as an administrative officer with the Department of Defence on 6 November 1989 working from various locations mainly in or near the Victoria Barracks located in St Kilda Road Melbourne.
3.On 20 June 1994 Mr Romanov-Hughes sustained an injury to his left ankle joint when his left leg fell into a one metre excavation trench at work (hereinafter referred to as "the accident"). During the course of that day the applicant's ankle became increasingly swollen and discoloured.
4.On the day of the accident Mr Romanov-Hughes attended Dr Bertram Sutherland Vanrenen of South Yarra Hill Medical Centre for treatment. He had his ankle x-rayed the next morning a (sic) and was certified unfit to work for two days (21 June 1994 and 22 June 1994).
5.On 23 June 1994 Mr Romanov-Hughes returned to work and lodged a claim for compensation for injuries sustained as a result of the accident.
6.On 22 September 1994 liability was accepted by Comcare in respect of "left ankle joint sprain".
7.Following the accident Mr Romanov-Hughes continued to experience ongoing aching pain and instability affecting his left ankle and undertook a course of intensive physiotherapy treatment with Mr Stuart Imer of South Yarra Physiotherapy & Remedial Massage Clinic.
8.From about February 1994 until 17 March 1995 Mr Romanov-Hughes worked as a Facilities Manager and was essentially desk bound and as such was not significantly inconvenienced following the accident in the performance of his work duties by reason of his ankle injury.
9.On 20 March 1995 Mr Romanov-Hughes was transferred to the Defence Publishing Section, which involved him in being on his feet for significant periods during the course of the working day in order to undertake his work duties. This caused an increase in left ankle discomfort.
10.In approximately May 1995 Mr Romanov-Hughes was referred by Dr B S Vanrenen to Mr Andrew McQueen, an orthopaedic surgeon, for further investigation of ongoing left ankle discomfort.
11.On 31 May 1995 in accordance with Mr McQueen's recommendation Mr Romanov-Hughes acquired and wore arch support orthotics. The respondent accepted liability for the cost of same.
12.On 1 June 1995, following Mr Romanov-Hughes' complaints of left ankle pain, the employer arranged for Fran Casey of Return to Work Rehabilitation to conduct a work site assessment and subsequently reassigned Mr Romanov-Hughes to the Supply Section, for a period of four weeks, which involved less standing, and then to the Health Services Support Area until 22 August 1995.
13.On 23 August 1995 Mr Romanov-Hughes underwent a left ankle arthroscopy, performed by Mr Andrew McQueen. The respondent accepted liability for Mr Romanov-Hughes' period of incapacity, being approximately eight weeks, and for medical and related expenses.
14.The surgery did little to relieve Mr Romanov-Hughes' ongoing symptoms of discomfort affecting the left ankle joint.
15.On 2 October 1995 Mr Romanov-Hughes returned to work in the Army Health Records Section. His duties involved a combination of desk work and work requiring the applicant to stand and walk about. His duties included filling medical records on individual servicemen files while standing in the filing area, creating new files, dealing with and archiving medical records of discharged soldiers, despatching files on request to Veterans' Affairs or Service Units. All duties involved elements of standing, walking and moving about the office as well as desk work. Mr Romanov-Hughes continued to experience pain and discomfort to the left ankle when standing or walking.
16.During the second half of 1995 Mr Romanov-Hughes developed arching pain to both legs, more so to the left lower leg. He was initially treated by Dr B S Vanrenen and referred to Mr Geoffrey Cox, a vascular surgeon who examined the applicant on 3 January 1996 and following a duplex scan investigation, diagnosed a work aggravated varicose vein condition which ultimately required surgery on 17 and 20 May 1996.
17.Mr Romanov-Hughes lodged a claim for incapacity and medical and related expenses associated with the varicose vein condition and the respondent accepted liability for a work related aggravation of same.
18.Following surgery Mr Romanov-Hughes was incapacitated for about four weeks and then returned to work in the Army Health Records Section on 17 June 1996.
19.Mr Romanov-Hughes continued to experience ongoing discomfort to the left ankle when required to stand or walk in the course of his employment.
20.By letter dated 26 October 1995, Mr Andrew McQueen advised the respondent, that Mr Romanov-Hughes would require arch support orthotics indefinitely in order to support the left ankle.
21.Mr Romanov-Hughes was examined by Sharyn Fitzgerald, podiatrist, on 11 April 1996 for persistent left ankle and foot pain. She was of the opinion that the supports which Mr Romanov-Hughes was then currently using did not offer adequate correction for his condition and proposed the casting of functional rigid orthoses to alleviate the persistent left foot pain. She applied for funding from the respondent.
22.In accordance with the recommendations of Sharyn Fitzgerald Mr Romanov-Hughes was fitted for and supplied with more rigid orthotics. The respondent accepted liability for the funding of same.
23.On or about 6 August 1996 Mr Romanov-Hughes first lodged a claim for compensation for periods of reduced earnings between 6 August 1996 and November 1996 for soreness of the left foot, fallen arches, and musculo skeletal pain behind right and left knees as a sequelae of the varicose veins operation.
24.On 12 November 1996 Mr Romanov-Hughes lodged claims with the respondent for compensation for arthritis to the left foot and flat feet (fallen arches).
25.On 13 January 1997 Mr Romanov-Hughes lodged a claim with the respondent for compensation for musculo skeletal pain behind the knees.
26.On 27 March 1997 the respondent denied liability for the following claims:
(a)Arthritis to the left foot (claim number 69119-04).
(b)Fallen arches (claim number 69119-05).
(c)Musculo skeletal pain behind the right and left knees from varicose veins operation (claim number 69119-06).
This decision was affirmed by way of a reviewable decision issued by the respondent on 28 May 1997.
27.Mr Romanov-Hughes was referred by Mr McQueen to Dr David Vivian who examined him on 28 April 1997 for persistent left ankle pain. Dr Vivian considered that the ankle was untreatable.
28.On 8 May 1997 Mr Romanov-Hughes began consulting Dr Stuart Proper from the orthopaedic unit at the Alfred Hospital, who in addition to the left ankle injury, diagnosed Mr Romanov-Hughes as suffering from bilateral hallux rigidis.
29.Dr Stuart Proper in his report dated 8 May 1997 encouraged Mr Romanov-Hughes to seek supportive footwear with wide toe containing areas and adequate heel support. He recommended Mr Romanov-Hughes attend physiotherapy for proprioception and mobilisation of his ankle.
30.On 13 May 1997 Mr Romanov-Hughes submitted a claim for compensation for incapacity benefits for time taken off work to attend physiotherapy treatment at the Alfred Hospital on 13 May 1997 and then subsequently on 20 May 1997, 27 May 1997, 3 June 1997, 10 June 1997, 17 June 1997, 1 July 1997 and 8 July 1997. On each occasion Mr Romanov-Hughes was absent from work for a period of one to one and a half hours. The total claimed incapacity benefits are equivalent to approximately one and a half days pay. On each occasion Mr Romanov-Hughes' attendance at the Alfred Hospital was for physiotherapy treatment to the left ankle.
31.On 28 June 1997 Mr Romanov-Hughes lodged an application for review of the respondent's decision dated 28 May 1997 with the Commonwealth Administrative Appeals Tribunal.
32.On 14 August 1997 the respondent determined that it was not liable to pay compensation in respect of incapacity benefits arising out of Mr Romanov-Hughes attending physiotherapy, because the certificates provided to the respondent did not state "the condition treated, the relationship of the condition to the compensable injury or the reason for attendance".
33.In September 1997 Mr Romanov-Hughes attended Mr Robert Howells, orthopaedic surgeon, for treatment of persistent medial left ankle pain. He arranged x-rays and MRI scan and subsequently referred Mr Romanov-Hughes to Mr Will Edwards, a foot and ankle surgeon.
34.Mr Edwards first examined Mr Romanov-Hughes on 24 November 1997 and remains Mr Romanov-Hughes' treating specialist. Mr Edwards diagnosed Mr Romanov-Hughes as suffering from a non compensable hallux rigidis, and probable disruption of the spring ligament to the left ankle, which he considered to be compensable.
35.On 18 December 1997 Mr Romanov-Hughes made application to the respondent for funding for special footwear in the form of double depth shoes with rigid soles to accommodate arch supports ("application for special footwear").
36.Since June 1998 Mr Romanov-Hughes has been treated by Dr Helen Sutcliffe, an occupational physician.
37.On 7 January 1998 the respondent denied liability for costs associated with the provision of special footwear.
38.On 6 February 1998 Mr Romanov-Hughes requested a reconsideration by the respondent of its decision dated 7 January 1998.
39.Mr Edwards undertook surgical management of Mr Romanov-Hughes' left foot hallux rigidis on 16 February 1998, which significantly alleviated Mr Romanov-Hughes' symptoms arising from that condition.
40.On 25 March 1998 the respondent affirmed its decision dated 7 January 1998.
41.By July 1998 Mr Romanov-Hughes' left ankle condition had gradually deteriorated to the point where he was suffering from persistent hind foot pain and occasional swelling. The pain was aggravated by walking and standing, when both travelling to and from work, and intermittently in the course of his duties as an administrative officer. The pain was further exacerbated by reason of Mr Romanov-Hughes' inability to obtain and wear appropriately moulded insoles and arch supports because of the respondent's refusal to fund the cost of same.
42.On 6 July 1998 the Administrative Appeals Tribunal affirmed the reviewable decision dated 27 March 1997. In the body of its decision the Tribunal made the following findings:
… We find that the cause of flat feet is likely to be genetic or constitutional. Mr Romanov-Hughes' evidence, that he first became aware of the condition during his period of employment, does not indicate that his employment contributed to any aggravation of the condition.
However, there is medical evidence suggesting a relationship between the congenital flattening of the arches and the ankle surgery following the fall in the trench… We find that the injury to the left ankle is the reason why Mr Romanov-Hughes will require arch supports indefinitely, even though he had not been told that he required those supports before the fall, except for a period during his childhood. Thus we find that the compensable ankle injury requires the provision of treatment for the congenital condition of fallen arches, although it has not aggravated that condition.
We find that because of the left ankle injury the flat feet require treatment by way of the use of arch supports or orthotics… We find that Mr Romanov-Hughes' aggravation of his flat feet is not a compensable disease, but he is entitled to have that condition treated by the provision of orthotics and appropriate shoes in order to support the compensable injury left ankle.
43.When reviewed by Mr Edwards in mid July 1998 Mr Romanov-Hughes continued to suffer from persistent ankle pain and occasional swelling, aggravated by walking and standing, which Mr Edwards thought was consistent with spring ligament injury or disruption arising from the compensable condition. Mr Edwards administered an injection of local anaesthetic and steroid to Mr Romanov-Hughes' affected ligament. This resulted in short term minor relief.
44.Mr Romanov-Hughes has been incapacitated from 20 July 1998 until returning to work on a graduated basis on 31 May 1999.
45.On 17 August 1998 Mr Edwards wrote to the respondent and the Department of Defence requesting acceptance of liability for exploration of Mr Romanov-Hughes' talo-navicular joint, the spring ligament and the tibialis posterior tendon, and possibly the tibial nerve, and also repair and reconstruction of such structures as we found to be deficient at the time of surgery. In anticipation of receiving a prompt response, Mr Edwards scheduled the surgery for 15 September 1998. The surgery was postponed as a result of the respondent failing to respond to the application for funding within time.
46.On 19 August 1998 Mr Romanov-Hughes requested a reconsideration of the determination dated 14 August 1997 (denial of liability for incapacity benefits for Mr Romanov-Hughes' physiotherapy attendances at the Alfred Hospital).
47.By letter dated 1 October 1998 Mr Romanov-Hughes again requested that the respondent review its decision to meet the cost of special footwear, having regard to the findings contained in the AAT decision dated 6 July 1998.
48.On 24 November 1998 the respondent affirmed its decision dated 14 August 1997.
49.On 30 November 1998 the respondent accepted liability for the surgical procedure proposed by Mr Edwards but denied liability for incapacity for the period 20 July 1998 to 30 November 1998.
50.On 9 December 1998 Mr Romanov-Hughes applied to the Commonwealth Administrative Appeals Tribunal in relation to the reviewable decision dated 24 November 1998 (denial of liability for incapacity benefits for time taken off by Mr Romanov-Hughes to attend the Alfred Hospital for physiotherapy treatment in May, June and July 1997).
51.On 13 December 1998 Mr Romanov-Hughes lodged an application with the Commonwealth Administrative Appeals Tribunal seeking a review of the decision dated 25 March 1998 (denial of liability for costs associated with the provision of special footwear).
52.On 30 December 1998 Mr Romanov-Hughes requested a reconsideration of the respondent's decision dated 30 November 1998 denying incapacity benefits for the period 20 July 1998 to 30 November 1998.
53.Mr Romanov-Hughes underwent surgery on 18 January 1999 performed by Mr Edwards to address the condition of spring ligament disruption.
54.On 11 March 1999 the respondent affirmed its decision dated 30 November 1998.
55.On or about 6 May 1999 Mr Romanov-Hughes lodged an application with the Commonwealth Administrative Appeals Tribunal in relation to the reviewable decision dated 11 March 1999. (Denial of liability for incapacity benefits for the period 20 July 1998 to 30 November 1998).
56.Mr Romanov-Hughes resides in Northcote. To commute to work Mr Romanov-Hughes walks approximately two hundred metres to a tram stop. He travels thirty minutes by tram, generally standing during peak hour periods because there are no available seats. Mr Romanov-Hughes then changes trams at the intersection of Collins and Swanston Streets and undertakes a further tram trip lasting approximately ten minutes, during which he is generally seated. Upon disembarking the tram Mr Romanov-Hughes is required to walk approximately three hundred metres to the administration office where he works. A similar trip is undertaken when commuting home at the end of the day.
Mr Romanov-Hughes stated that in respect of fact number 39 above, Dr Edwards later operated on his right foot for hallux rigidus on 22 November 1999.
In relation to fact number 35 above, Mr Romanov-Hughes explained that at the time he made application to the respondent for funding for special footwear, the arch supports he had been using caused discomfort to his feet because of the amount of room they took up in his shoes and that, after wearing the shoes for a time the stitching on the top of the shoes would start to break away.
Mr Romanov-Hughes said that Dr Sutcliffe, to whom reference is made in fact number 36 above, continues to be his treating occupational physician and that, during the period 20 July 1998 and 30 November 1998, she has certified him as being unfit for carrying out the full duties in respect of his employment. He added that he was absent from work from 20 July 1998 through to May 1999.
As stated under fact 39 above, Dr Edwards undertook surgical management of Mr Romanov-Hughes' left foot hallux rigidus on 16 February 1998, which significantly alleviated the symptoms arising from that condition. In his evidence Mr Romanov-Hughes stated that the surgery gave him a much wider range of movement in the big toe of his left foot. He stated that after the surgery he was off work for about four weeks, after which time he worked until about 13 July 1998, when he was experiencing soreness in his left ankle.
As stated in fact number 45, exploratory and reconstruction surgery in respect of the talo-navicular joint, the spring ligament, the tibialis posterior tendon and possibly the tibial nerve, was scheduled for 15 September 1998, Mr Romanov-Hughes said that this date was later than he wished and that he had asked for the surgery to be performed as soon as possible. He stated that the respondent accepted liability on 30 November 1998 and surgery was finally performed on 18 January 1999.
Asked whether the surgery has helped him, Mr Romanov-Hughes responded by saying that:
"Generally I think once again it's probably settled back to where it was prior to the surgery, maybe some slight improvement. It's hard to say because the soreness isn't there all the time. It's something which largely comes with the amount of use I give to the ankle so it's a bit difficult to give an exact examination on that."
When asked why he considered that he requires specially modified footwear, Mr Romanov-Hughes stated:
"Well, mostly because I normally take say a size 10 and I've got a size 11 now, but the increase in size with shoe between say size 10 and size 11 is not equivalent to the increased sizes needed to accommodate an arch support and the shoes feel somewhat loose when I wear them and possibly causing soreness to the ankle themselves."
Further, when asked what the reasons were for his claim that his left ankle resulted in incapacity from 20 July 1998 to 30 November 1998, Mr Romanov-Hughes stated:
"Well, initially there was continuing soreness from the injection. There was the effects of the increased amount of travelling to work that I was doing and also the likelihood of an operation happening in the near future."
Following the operation on his right foot on 22 November 1998, Mr Romanov-Hughes returned to work part-time on reduced hours on 31 May 1999. It was his view that prior to that date he could possibly have returned to work had "the ideal sort of duties" been arranged for him. He considered that, given the amount of travelling that he does (see fact number 56 above), appropriate duties would be "desk bound duties".
During cross-examination Mr Romanov-Hughes' attention was drawn to a report by Dr Edwards in which the doctor stated:
"I again reviewed the patient approximately one month later on 17 August 1998. At this time Mr Romanov-Hughes reported he had considerable pain relief with his local steroid injection into the talo-navicular joint surrounding the spring ligament for approximately three to four weeks but this relief was now abating."
Mr Romanov-Hughes said that the report was not correct and that the reverse was true. When asked why he had not corrected the doctor he said that there had been no opportunity for him to do so. Mr Romanov-Hughes stated that he experienced increased soreness where he understands the spring ligament is sited and he considered this to be due to the steroid injection. When asked why he waited for about a month before reporting this to the doctor he said that the latter had told him he did not want to see him for a month.
When asked why he consulted Dr Edwards in mid-July 1998, Mr Romanov-Hughes said:
"Well, as I mentioned, originally there'd been intended to do both hallux rigidus operations first because they were straight forward and then to try something with the ankle afterwards because he was quite unsure of whether or not he could do anything for the ankle and by July I'd sufficiently recovered from the first operation on my hallux rigidus to contemplate the second one. I found out that there was virtually no likelihood of that happening for another six months so rather than just sort of sit round for six months I sort of went back and saw him and said, well you know, the left foot, the hallux rigidus has been done in the left foot so basically can you do anything with the ankle now because I'm just going to be sitting round waiting for this other one on the right foot."
As indicated, Mr Romanov-Hughes first saw Dr Sutcliffe in June 1998. He said that he met the doctor at a union seminar about one year earlier. He was not referred to her by another practitioner.
Dr McQueen, whom Mr Romanov-Hughes saw on, stated in a report to Dr Vivian dated 14 April 1997 as follows:
"He is also trying to link the non-compensible hallux rigidus into an aggravating factor on his compensible ankle injury (I do not agree with this)."
In drawing Mr Romanov-Hughes' attention to the report, Mr McInnis put it to him:
"That you have embarked upon a contrived approach with a deliberate view to trying to make whatever is wrong with you compensable. That is what you tried to do and when you failed with the AAT before you then decided, well, I am not going to be totally incapacitated and I am going to go ahead and have an operation for this ankle because that is compensable and I will take time off and it will be compensable as well."
Mr Romanov-Hughes denied this is so.
Although he is presently employed at the ASO1 level, Mr Romanov-Hughes holds formal qualifications in accountancy. He was at one time Office Manager of the Genealogical Society in Melbourne. He continues to have an interest in genealogy as a hobby. He also has an interest in home publishing. He said that between July and November 1998 he was not actively engaged in trying to produce income. During that time he was actively involved in genealogy as a hobby. He was not actively involved in actual publishing.
Mr Romanov-Hughes gave evidence that an MRI scan which showed that he has what he described as a "tear in my spinal column". He said that he also experiences cramps in his legs and that Dr Dooley thought these may be related to his back condition. When asked whether he has been told that his back might be work-related, Mr Romanov-Hughes said he was looking at the possibility that, when he injured his ankle, he may also have twisted his spine.
When it was put to him that during the period July to November 1998 he clearly had a capacity to work, Mr Romanov-Hughes stated that he had some capacity, but that the reason he did not work was because "the employer wasn't requiring duties that would have been medically suitable".
Mr Romanov-Hughes stated that by December 1998, Dr Sutcliffe had made an assessment as to whether it would be advisable for him to return to work, prior to his operation timed for 18 January 1999. He said that the doctor "basically recommended that I not return to work prior to the operation".
When asked what it was about his condition of the left ankle that prevented him from doing any work at all from July 1998 to December 1998, but which did not prevent him doing work from March 1998 to July 1998, Mr Romanov-Hughes replied:
"Well, there were different circumstances in that I had an injection in July, I went back to the doctor after four weeks and he arranged the operation in middle of September. Now, that was cancelled at the last moment through Comcare's losing the request for funding and then it was just a matter of basically from week to week until they sort of came through with the decision and then I could arrange the operation. So it wasn't decided in August that I would be off for four months. It was a matter of trying to have this operation on my ankle as soon as possible and Comcare keep delaying the actual operation."
Mr Romanov-Hughes denied that he decided to proceed with the surgery on his left foot hallux rigidus on 16 February 1998, because of the respondent's denial of liability on 7 January 1998 for costs associated with the provision of special footwear.
Mr Romanov-Hughes said in re-examination that between 20 July 1998 and 15 September 1998, he was experiencing pain in his left ankle due to the steroid injection administered by Dr Edwards. He added that the soreness in the ankle continued for a few weeks after the injection and that during that time he experienced a loss of mobility and would not have been able to perform those duties in the Army Health Records Section that he would have been asked to perform at that time.
Mr Romanov-Hughes stated his condition improved as the effects of the steroid injection wore off and that it was:
"then very much a matter of just sort of waiting for Comcare to make a decision on whether they would fund the operation and then try to have the operation as soon as possible."
When asked by Mr Johnson why he did not return to work Mr Romanov-Hughes stated:
"I had numerous conflicts in the past with supervisors, mainly military supervisors who are supervising civilian staff and who sort of require – like they'd require a medical certificate in the exact wording that they feel is correct before they'll act upon something and in a number of instances I sort of had to find out from a supervisor the exact wording they want on a certificate and then gone to the doctor and ask the doctor to put that wording on because that's just one of the ways the military work, is that they need everything precisely and I've had problems in the past. I mean it was while I had this ankle injury and supposedly on restricted duties that I actually developed the varicose veins which is something which is caused by often excessive standing and this photocopying duty which caused me the back pain was a duty which was identified on a return to work as something suitable for me to do other than standing. So I really don't feel that it's a – I really don't feel safe working that area."
Mr Romanov-Hughes said that he would have returned to work had he believed he would have been given a sedentary, sit-down job:
"I would have liked to have tried to have sort of got back to full time hours because my income is basically the sickness allowance and the hours that I work are +deducted from sickness allowance. Basically I'm still only on social security so – and I've got sort of a lot of debts and the like so really from a monetary point of view I would have had an incentive to go back to work and if I felt that there was a suitable job there I would have been glad to have gone back to work. I've tried and I've tried and there's always some problem presents itself there."
Mr Romanov-Hughes explained that by "problems" he meant change of duties "or the like", which makes the work unsuitable.
Mr Romanov-Hughes denied that the decision of this Tribunal, which was made on 6 July 1998, was a factor in him attending work from March 1998 to June 1998, but not taking specific absences because of his left ankle. He added that the Tribunal decision was not a factor in him ceasing work in July 1998.
It was Mr Romanov-Hughes' assertion that in 1998 he did not have the financial resources to pay what he said was then over $900, for special shoes. He also stated that the advice of Dr Edwards was that the use of special shoes was a "form of conservative treatment", as an alternative to operating.
It was Mr Romanov-Hughes' evidence that he did not believe the purchase and use of specialist shoes "would have miraculously made the difference between my being able to work full-time and not work full-time".
As to his financial resources the evidence of Mr Romanov-Hughes was that he owned a number of shares which he had purchased prior to July 1998, and that in early June that year he had about $1,600 in a Mutual Friendly Society account. However, it was also his evidence that in 1998 he was in arrears in respect of a $12,500 Def credit loan. He has no dependants and since January 1997 he has lived rent free in a house in Northcote, which is part of his late mother's estate.
Mr Romanov-Hughes has consulted Dr Sutcliffe since mid-1998. During the period mid-July 1998 to late November 1998, and indeed for some time thereafter, the doctor issued medical certificates on the basis that Mr Romanov-Hughes was not fit for work, the reason being that his duties in respect of photocopying were no longer appropriate:
"Well, unfortunately, the duties of photocopying were no longer appropriate for him because of the difficulties there, and his duties were general. His original duties certainly required ongoing walking because of the filing required and the distance from his usual workplace, the office, to the filing at the back of the building. So there was quite a bit of walking required in that job, and the alternative duties required also indicated that he would need to be performing considerable walking as well. One of the things about Mr Romanov-Hughes is I think that he has had pain for quite a considerable period and he has attempted to find relief for this through various means, through surgery - through attending surgeons. I don't think he really lets people know how much discomfort he has really had. And it is only with prolonged discussion with him over a considerable period that it becomes quite clear how much discomfort he has been suffering over this long period."
On 3 December 1998 Dr Sutcliffe conducted a work-site assessment. At the assessment suitable duties for Mr Romanov-Hughes were identified subject to his condition permitting some mobility after his recovery from surgery. The duties were "at the rejects and at the front desk section". In her evidence the doctor observed:
"This was going to be low, and it wasn't adjustable, and that presented particular difficulties for Mr Romanov-Hughes because of his tall stature compared to others in his workplace, and there was difficulty for him to fit his legs under the desk without touching the bottom of the desk, which was a considerable problem. So the desk needed to be raised as his upper thighs were striking against the support for the desk top. I also indicated that a footrest needed to be provided, and that ankle discomfort should be minimised prior to adjusting the work-site around Mr Romanov-Hughes' resulting position. By that I meant that first of all the ankle had to be placed in the most appropriate position to relieve discomfort, and then the workplace adjusted around that, rather than adjusting the workplace to his position, and then trying to fit the ankle into that position, which happened previously. People had provided him with a workstation which in fact caused further discomfort in his ankle because of the position in which he had to sit. The chair was satisfactory and was able to be adjusted sufficiently, but one of the basis principles of ergonomic safety is you require an adjustable workstation, and then there is the requirement to alter the workstation to minimise the pain. That hadn't happened previously, and I indicated that after – I think later in the report, indicated that that should occur on his return to work after surgery. In addition, the front desk duties where he was opening and sorting mail, that required further walking, and one of the great difficulties with that was at the front desk there was the requirement to open the door because it was a security office, and visitors or staff coming backwards and forwards pressed a button and the workers at the front desk were required to go and open the door. And that would happen frequently at times, at other times quite infrequently, but that was unpredictable. And if the person was the only worker at the front desk there was extra stress and strain placed upon them, because if they didn't open the door the people could view them as well and get very frustrated and upset that they didn't actually go and answer the door when the button was pressed."
Dr Sutcliffe said she understood that other duties were considered, such as collecting stores, sorting medical documents, filing circulars, archival action in respect of documents and handling inward mail. However, because of the nature and extent of the physical activity and posture involved, especially walking, the only duties appropriate to Mr Romanov-Hughes were desk-based where no filing was required.
In discussing the manner in which Mr Romanov-Hughes travelled to and from work, which she understood included the use of trams and walking, Dr Sutcliffe expressed the view that these activities would have caused him difficulty and pain.
Dr Shumack examined Mr Romanov-Hughes on 21 September 1999. He subsequently provided two reports. In his first report, dated 29 October 1999, the doctor provided a comprehensive opinion, as follows:
"1.It is indeed difficult to give a precise diagnosis of this man's present condition. From all the information available to me it appears that he sustained a significant eversion injury to his right foot, where he had a pre-existing mild Hallux Rigidus condition of no particular significance.
The result was an injury to the "spring ligament" and possible tearing of some portions of the insertion of tibialis posterior, not necessarily its principal insertion into the tuberosity of the navicular, where a small flake of bone may have been avulsed.
Some injury to the dorso-lateral aspect of the talus in the ankle joint itself, as described by Mr. McQueen, may be part of the same injury, suggesting there may have been quite a widespread stretching of other ligament in the region of the forefoot joint may also have occurred.
As a secondary phenomenon, Mr. Romanov Hughes has developed a great deal of introspective anxiety and frustration, the effect of which is prolonging his awareness and magnifying his feelings of incapacity in relation to the right foot.
2.On the balance of probabilities, I think this man's condition has been principally caused by the described episode of 20 June 1994, the left foot being forced into an abducted and everted posture, jammed at the bottom of the trench by this man's not inconsiderable weight. The damage in the sub-talar and mid tarsal region, not concentrated in one area. Such injuries tend to have seemingly disproportionate symptoms because of the distorted proprio-ceptive function of ligaments, which is at least as important as the physical distortion of the ligaments themselves.
His obvious introspective anxiety, in an atmosphere of doubt regarding the precise diagnosis, would heighten his awareness and feelings of incapacity. The opinion of a psychiatrist may be useful in this regard.
3. & 4.I do not believe progression of any underlying condition such as the Hallux Rigidus, is of any significance.
There seems little doubt that the fall actually occurred, in which case the major symptoms do appear to have arisen from that incident. It appears that incident at the work-site has been the direct cause of the condition. I doubt that there is any significance in the pre-existing conditions. There is no evidence of significant constitutional flat foot, the Hallux Rigidus is not work related nor would the presence of varicose veins have any adverse effect on his foot condition.
5.As stated above, I think that this man's developed anxiety and claimed incapacity relate to his adverse psychological reaction, and it is difficult to apportion and separate the direct physical effects from the psychological.
There is an obvious degree of resentment in relation to the incident, claiming an unmarked trench and what this man sees as unsatisfactory attempts to accommodate his now claimed incapacity.
I am not able to quantify these factors with any degree of accuracy.
6. & 7.Clearly he has symptoms, which after a period of 5 years may well be regarded as permanent. As stated above, the subtle effects of the ligamentous injuries, both localised and diffuse, may be long lasting, but not necessarily permanent.
Apart from ensuring competence and prompt response of appropriate muscles, by exercises rather than by any passive techniques, and some of the psychological techniques of "chronic pain management" may help alleviate hat (sic) component of his problem.
8.All the efforts of his employers to comply with his complaints and the rehabilitation plan which has evolved in attempts to overcome them, have failed to produce the expected outcome.
9.&10.If this man received a full explanation of the lack of sinister significance of his on-going symptoms, with good motivation and a greater effort on his part, he should be able to work more than 15 hours a week. Such work may require a capacity to sit or stand at will, he may need to avoid excessive stair climbing or walking on rough ground. I see no need for any other specific restrictions.
A short circumscribed programme of such support from a psychologist and physiotherapist should achieve this aim within 2-3 months.
11.His current treatment needs differ from what might be expected if one considers the underlying injury to the spring ligament and minor degree of intra-articular damage in the ankle joint itself, because of the developed psychological reaction, for which psychological treatment is needed.
12.I do not believe special shoes are required for this man. It would be sufficient for him to use a non-rigid moulded insole.
Reduction of his obesity is recommended in regard to both his foot condition and general health.
13.Prognosis for the overall work capacity depends on the psychological status rather than the physical condition of his ankle and foot.
A degree of post traumatic arthritis may develop in the ankle joint itself although none is evident at this five year interval from the original injury, it is not likely to be of severe degree or require anything more than simple treatment such as outlined above.
14.The physical effects of the injury sustained on 20/6/94 have ceased. The adverse psychological effects remain. Prognosis in that regard is outside my competence.
15.In regard to a suggestion of redeployment to other areas of the Defence Department, my response must be that as a means of minimising the adverse effects of his problems he must have with his present fellow workers, such a redeployment may be advisable, and the opinion of a psychologist would be of value in this regard."
In his report Dr Shumack explained that his opinion was dependent on him viewing the images of the physical components of Mr Romanov-Hughes' problem, in particular the MRI films. He subsequently examined an ultrasound report dated 13 July 1998, and an MRI dated 9 October 1997. Having done so, the doctor provided a second report, dated 18 November 1998, in which he relevantly stated:
"Further to my report following examination of this man, I have now located his radiographs, MRI examination, and ultrasounds of his left foot and ankle condition. All are now delivered to his treating surgeon Mr Edwards.
It appears that there was probably no bony injury involved in the incident of 20.6.94. The "separate fragment" of bone related to the insertion of the posterior tibial tendon into the navicular bone. It had the appearance of an accessory navicular bone (a frequent and usually insignificant anomaly), and it seems from Mr Edwards' operation report that the accessory bone was removed at the time of his surgery.
From his description of the surgery, some disruption of the plantar talo-navicular ligament, (known as the "spring ligament") with reactive scarring was seen, and there was probably also some damage to the other insertion slips of the tibialis posterior tendon in association with the forced eversion and midtarsal plantar flexion injury, the probable mechanism of the original foot deformation in the fall.
Those damaged structures appear to have been dealt with appropriately. The degree of reactive change in the posterior tribial tendon sheath mechanism may well have occurred secondarily, but is of no continuing significance, and as I understand it, the necessary surgery has been carried out for the left foot Hallux Rigidus condition also.
Thus, from an anatomical point of view, the damaged tissues appear to have been satisfactorily repaired or have recovered satisfactorily by the previous healing process. There is some scarring, loss of elasticity, and significantly, some disturbance of the normal proprioceptive sensory function of those ligaments.
The significance of the problem has been magnified by his perceived invalidity, and the impact of the psychological response to the injury, combined with his aggravated anxiety due to his perception of his treating surgeons doubts as to the exact nature of the condition, (or how to deal with it), and have all combined to prolong symptoms and contribute to his "chronic pain behaviour" which is now the most significant part of his present status. I don't doubt that such an injury did occur but it has been adequately dealt with.
Over time and with normal usage it will further improve somewhat, but will never regain its previous level of comfort. The waring of suitable footwear with a padded insole would help in that regard but the deflection of his introspective anxiety from that portion of his anatomy is the most important aspect of "treatment". Future status, depends on this man's own mental resources and what help he can get from psychologists or experts in management of his chronic pain syndrome.
I do not foresee the need for any further surgical endeavour.
From the point of view of his work capacity, I see no reason why he should not undertake the duties which were set out on the work offer."Dr Colville first saw Mr Romanov-Hughes in October 1996 and again in November 1997. He then reviewed him on 22 December 1999, at which time he found Mr Romanov-Hughes to be grossly introspective concerning his condition and that he seemed to be much more motivated by manipulating the appeal process than learning to live with his condition. While the doctor accepted that Mr Romanov-Hughes no doubt has some persisting foot discomfort and other minor symptoms consistent with his age, he found it difficult to accept that these are such as to cause the loss of function which he reports.
It was Dr Colville's view that Mr Romanov-Hughes' "recent temporary incapacity results from his recent toe operation". The doctor considered that Mr Romanov-Hughes should be able to vary his posture, but should not stand or walk for periods in excess of half an hour.
Dr Colville considered that Mr Romanov-Hughes requires an "insole" to fit into a suitable, normal, shoe.
Dr Edwards first saw Mr Romanov-Hughes on 24 November 1997.
When asked what he found on examination, Dr Edwards gave a comprehensive response:
"He told me when I first saw him that he injured his foot when he was crossing a trench and landed heavily, had a twisting injury. He noted some foot swelling and bruising on both sides of his foot. He was seen by a local doctor and was managed conservatively. I understood at this time that his course was rather prolonged. He saw another orthopaedic surgeon other than me or Robert Howells who performed an ankle arthroscopy and Mr Hughes told me he hadn't had a great benefit from that. His complaint was medial hind foot paining, meaning pain on the inside and back of the foot. He said it was mild to moderate intensity, it did not keep him awake, it was made worse with activity, particularly standing and walking and his walking distance was about a mile. The foot had – he had episodes of instability but he did not have significant swelling at that time. There was some ache on the top of the foot, top central part of the foot. He had a flat foot, a pes planus valgus foot posture. He had a mildly antelgic gait, that is to say he walked with a painful lump. He had tenderness related to the talo navicular joint, the medial aspect of the tal0 navicular joint particularly where tibialis posterian inserts and just inferior to that which is a region of the foot where the spring is. It's also there's an area of complex anatomy here, there are overlying nerves and so forth which makes examination of this part of the foot difficult but I felt he had essentially tenderness and irritability of the talo navicular joint and particularly the spring ligament. He also had a hallux rigidis, that is to say a form of osteoarthritis of the great toe, had limitation of movement of the great toe with dorsel effluxion of the joint to 15 whereas normal would be 90 degrees. He had powerful function of his long motors. X-rays he provided me with a number of investigations including some x-rays which showed a small flake of bone in this region in the medical aspect of the navicular, suggestive I thought of an evulsion fracture either within the body of tibialis posterior or more likely within as an evulsion of the spring ligament form the navicular and he had previously had an MRI which had shown inflammation in this region although it's difficult to imagine the spring ligament with either MRI or ultrasound. It's a very difficult area to get access to and I really went on to recommend conservative treatment at that stage."
When asked what he meant by "conservative treatment", Dr Edwards said he hoped that by providing support for the hind foot with moulded insoles and solid shoes this would "decrease the stress over the spring ligament and allow it to heel".
Dr Edwards stated that he issued a prescription, which reads as follows:
"Spring ligament tear consequent to malleolus pes planus … causing tarsal tunnel irritability also hallux rigidis. Treatment, solid soled shoes with a distal rocker, steel shanked dorsal blow-out to allow for capacious for the insoles."
Dr Edwards explained that to treat the ankle he needed to accommodate the forefoot, which is the hallux rigidis, and that the prescription was primarily for the hind foot problem, although the purpose of the "rocker" was to accommodate the hallux rigidis.
Dr Edwards stated that since his surgery Mr Romanov-Hughes should be able to fit into "capacious solid soled shoes". He no longer requires the distal rocker because he has now had the operation for hallux rigidis on the left foot. It was Dr Edwards' view that Mr Romanov-Hughes needs to have a shoe that has a sound sole and a good support and a solid posterior aspect ("count")
Dr Edwards stated that when he rendered a report on him on 14 September 1998, Mr Romanov-Hughes was not totally incapacitated for sedentary employment of a clerical nature.
In a letter to Dr Howells dated 15 April 1999, Dr Edwards said of Mr Romanov-Hughes:
"Our patient had significant hindfoot problems in association with forefoot problems. What has complicated his management is the crossover between what his WorkCare (Comcare) will accept as opposed to what is native disease. Earlier this year I was eventually persuaded to operate on him, performing a tarsal tunnel release and a stabilisation of his talo-navicular joint. Thus far this has had good results. His pain has largely settled. His talo-navicular joint is non-tender. His hindfoot tenderness has disappeared. He unfortunately requires shoes with an arch support and with these his mobility is vastly improved. I am happy with this result as is our patient."
Ms Lara Jemison was the Rehabilitation Case Manager for the Department of Defence in Southern Victoria, from early October 1996 to late 1999. From almost the time she commenced in that position she was the case manager for Mr Romanov-Hughes.
Ms Jemison said that while case manager she sought and received a work site assessment from Mr K. Walsh, who is an Occupational Therapist. The assessment was made on 17 June 1998 and was in respect of Mr Romanov-Hughes. A copy of the assessment report was forwarded to Mr Romanov-Hughes on 16 July 1998.
Mr Romanov-Hughes wrote a letter to Ms Jemison on 3 September 1998, in which he commented as follows:
"Dear Ms Jemison
I am in receipt of your letter of the 16 July 1998 together with the Worksite Assessment Report of Kevan Walsh.
Firstly, Kevan's report does not cover the use of the photocopiers which I understood was the reason for the report. I was required to operate these photocopiers in half-day shifts during my time at Army Health Records over seven years. After my ankle injury in 1994 I was spending up to a quarter of my working time on this task. Also, the recent Government Medical Officer's report suggests the possibility of my being required to perform this duty again.
Regarding the height of the computer monitor and chair adjustment, Defence physiotherapist Libby Stopp visited the workplace and adjusted these just two days prior to Kevan's visit. Perhaps you'd like to try for the best of three opinions?
Regarding the positioning of paperwork for data entry. Kevan suggested to me the positioning of a sloping board between the keyboard and the computer monitor. As he has made no mention of this in his report nothing is likely to be done.
Regarding the removal of the keyboard height mechanism, I agree with this but the real problem is that the top of the desk itself is too low. Also, the matching chairs that staff were promised prior to the purchase of these desks were never provided.
Since being taken off photocopying my computer has been tampered with and the ARMREC database has been disconnected. Also, team working parties were established to do 'TD'ing. These events significantly reduced the work I was able to do whilst seated.
As you are aware, prior to my temporary transfer to the Bureau of Meteorology, I provided medical certificates requesting alternate duties to those available in Health Records. Yet when the position at Meteorology dragged on and became unsuitable I was forced to return to Health Records even though my condition had worsened."On 18 November 1998 Ms Jemison reported to Major Hanney, Manager of the Health Records Section, stating:
"I have just FINALLY spoken with Alexander's Dr Helen Sutcliffe. (she has been very difficult to catch and I left several messages.)
Dr Sutcliffe says Alexander currently has difficulty with prolonged walking. She conceded that Alexander has been fit for desk-based work for some time, but as he could hear that his operation is to proceed at any time she did not think it worth the effort to organise a return to work just to have him go in for surgery a couple of days later.
I suggested that it was worth the effort given that the work was there and he'd run out of sick leave. I emphasised that ADFHR-A could offer seated duties immediately. I also emphasised that Alexander's work tasks have only been changed following consultation with rehab providers and his treating doctors and that there have been MANY workplace visits involved.
I asked what Alexander's likely time off work would be post-surgery and she suggested 6-8 weeks, perhaps longer. She said he will have to avoid weightbearing at all in the initial stages.
I asked what would be the best way to proceed when Alexander is finally cleared to return to work in some capacity. Dr Sutcliffe was very eager to come to the workplace herself to ensure any duties offered were suitable. I assured her that we would be most happy for her to attend.
She offered to call me the next time she saw Alexander to advise if a return to work could progress prior to surgery.
I asked if she agreed with the CMO report and she said no – she thinks Alexander's injury is much more serious than previously diagnosed. (I checked that Alexander had given her a copy).
I will let you know when Dr Sutcliffe calls again."On 4 December 1998 Ms Jemison reported to Ms Manel Fernando, Comcare Claims Management Centre, stating:
"Yesterday I met ARH and his Dr Helen Sutcliffe at ARH's workplace. Major Hanney explained to ARH and the Dr what duties were immediately available for ARH to perform.
Dr Sutcliffe agreed that there were suitable duties for ARH, but ARH disagreed. He then explained that he had to travel by public transport and walk a lot to get to work and that was in lots of pain by the time he arrived etc. Dr Sutcliffe said there were obviously other issues she had to discuss with ARH about return to work and that she would see him in the next couple of days and then call me back.
Possible RTW was going to be GRTW 3 hrs x 3 days, from 8/12/98.
At about 10 am this morning Dr Sutcliffe rang me. She pointed out several issues:1.ARH had to travel for about an hour to get to work (using the tram and walking)
2.he needs special shoes and orthotics (which Comcare have denied and is at the AAT, and are too expensive for ARH to buy himself since he is on DSS benefits)
3.the cost of travelling to get 9 hrs pay is not cost-effective
Taking into account issues 1/2/3 Dr Sutcliffe said "common sense must prevail" and she is keeping ARH off work.
I tried to explain the benefit of ARH coming to work in terms of his career progression, and also the need for him to take some responsibility for his own needs, ie purchase the shoes himself.
The Dr sort of agreed with this but said we were talking values and the reality was ARH was not going to buy his own shoes.
I then said that if she as the Dr thought he could not RTW for medical reasons please write an appropriate med cert and we will have to take her word for it. She will. Dr Sutcliffe also made the point that she thought that no-one had really understood that ARH had a serious injury until she became involved in the case.
The upshot of all this is that ARH will remain off work until his ankle surgery on 18/1/99."Ms Thomson, who was Mr Romanov-Hughes' team leader(?). She explained that Mr Romanov-Hughes' duties were predominantly filing, photocopying and arranging medical documentation into terminal digital order. The work involved sitting and standing and occasionally walking perhaps some twenty metres to a filing room.
FindingsDue to time limitations in respect of the hearing of this matter counsel were afforded the opportunity to make final submissions in writing. Submissions were thus made by both counsel and regard has been had for them by the Tribunal in arriving at its various findings, which are as follows:
(a)That, in respect of Application No. V1998/1398, the respondent is liable to pay compensation for the purpose of special footwear; and
(b)That, in respect of Application No. V1999/494, the respondent is not liable to pay compensation to Mr Romanov-Hughes for incapacity for the period 20 July 1998 to 30 November 1998.
In arriving at finding (a) I have had particular regard for the opinions of Dr Edwards who, when asked whether Mr Romanov-Hughes required special shoes to deal with his ankle prior to the spring ligament repair, stated:
"He would require capacious solid soled shoes that are able to fit the insole to support his hind foot and the insole that may have required a deeper more solid shoe than following the repair, but I would have expected him – I would have hoped that we'd get him into standard off the shelf shoes, perhaps with modifications."
When further asked what modifications would be required to "off the shelf" shoes, the doctor replied:
"Stiffening of the sole, the rocker we've talked about, that is to accommodate his forefoot, and the capacity or the depth of shoe that is able to fit the insole which at that stage should have been more aggressive than the one he currently requires. I'm sorry, I'm perhaps knotting myself over the word special and I think in this report of 9 August special to me meant a shoe built for this foot that has been sized to fit the foot exactly and perhaps if you said does special mean a modified shoe, well, I would accept that."
From the material before me I am satisfied that during the period from 15 September 1998 to 18 January 1999, the reason why Mr Romanov-Hughes did not return to work was essentially because he regarded it as the respondent's fault that he did not have his operation until 18 January 1999, and that he would therefore simply remain off work until after the operation.
As submitted by the respondent, prior to the steroid injection into his ankle, Mr Romanov-Hughes had very few absences during the first half of 1998, and no significant change in his medical condition in early July, except for a claimed back condition.
As demonstrated, Mr Romanov-Hughes also asserted that between July and November 1998 he was not able to return to work because he could not afford the cost of appropriate shoe wear. Given the evidence to which I have referred concerning his financial resources I reject this assertion.
I have referred to the evidence of Mr Romanov-Hughes and Dr Sutcliffe concerning suitability of employment. I should, however, record that I prefer the evidence of Ms Jemison and Ms Thomson, both of whom in my view demonstrated that reasonable action was taken to provide Mr Romanov-Hughes with appropriate duties and workplace conditions.
DecisionThe Tribunal will decide as follows:
(a)In respect of Application No. V1998/1379 – Set aside the reviewable decision dated 27 November 1997, and vary the determination dated 14 August 1997, as set out in paragraph 5 of these Reasons for Decision;
(b)In respect of Application No. V1998/1398 – Set aside the reviewable decision dated 25 March 1998, and vary the determination dated 7 January 1998, so as to provide that the respondent is liable to pay compensation for the purposes of special footwear;
(c)In respect of Application No. V1999/494 – Affirm the reviewable decision under review.
I certify that the 74 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr B.G. Gibbs, AM, Senior Member
Signed:.....................................................................................
Personal AssistantDate/s of Hearing 26/11/99, 20/3/00 & 21/3/00
Date of Decision 22/5/00
Counsel for the Applicant Mr C.D. Johnson
Solicitor for the Applicant Galbally & O'Bryan
Counsel for the Respondent Mr M. McInnis
Solicitor for the Respondent Australian Government Solicitor
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