Saxton and Military Rehabilitation and Compensation Commission

[2005] AATA 1059

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1059

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/726

GENERAL ADMINISTRATIVE   DIVISION		)
Re		PETER JOHN SAXTON

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Senior Member Ms R Hunt
Member Dr M Thorpe

Date24 October 2005

PlaceSydney

Decision The Tribunal affirms the decision under review.

..............................................

Ms R Hunt
  Presiding Member

CATCHWORDS

WORKERS’ COMPENSATION – Claim for ankle injury arising from incident during service in East Timor in 1999 - Degree of impairment - Impairment under Table 9.5 of the Guide to the Assessment of the Degree of Permanent Impairment - "Difficulty" - Applicant has difficulty with grades, steps and distances – Pain contributes to difficulty

LEGISLATION

Safety, Rehabilitation and Compensation Act 1998 ss 24, 27

CASES

Comcare v Fiedler (2001) 115 FCR 328

Carman and Comcare [2002] AATA 946

Whittaker v Comcare (1998) 86 FCR 532

Amorebieta and Comcare (1994) 35 ALD 603

Re Watkins and Comcare [2002] AATA 613

Guide to the Assessment of the Degree of Permanent Impairment Table 9.5

REASONS FOR DECISION

24 October 2005	Senior Member Ms R Hunt Member Dr M Thorpe
introduction

1.        Mr Peter Saxton, the applicant was born in 1946 and enlisted in the Royal Australian Naval Reserve in 1981. He did active service in East Timor and, while on duty in 1999, suffered an injury to his right foot.  He received medical treatment in Dili and later attended a naval hospital in Sydney. In a letter dated 9 January 2004, the Commission accepted liability for the foot condition, “fracture of the base of the fifth metatarsal and midtarsal joint strain, right foot”, but determined later in 2004 that it would make no payment for compensation on the basis that the degree of impairment was less than 10%.  Mr Saxton seeks payment of compensation in respect to his accepted condition for whole person impairment of 20% under Table 9.5 of the Safety, Rehabilitation and Compensation Act 1988 (the Act).

the issue

2.        The issues for the Tribunal are:

·     Does Mr Saxton suffer from whole person impairment as a result of the accepted fracture at the base of the fifth metatarsal and midtarsal joint strain of the right foot?

·     Is Mr Saxton’s accepted injury correctly described or has he suffered a different injury in the course of his relevant service?

·     Is the Commission liable to pay Mr Saxton compensation in respect of his injury?

3.        Mr Saxton claims that he suffers from whole person impairment of 20% due to his military employment and that compensation is payable under sections 24 and 27 of the Act. The Commission denies that Mr Saxton suffers whole person impairment of at least 10% as a result of his accepted fracture and that, therefore, it is not liable to pay compensation.

evidence

Mr Saxton’s evidence

4.        Mr Saxton made a written statement and gave oral evidence to the Tribunal about the restrictions the injury caused to his previous sporting and recreational pursuits, as well as daily activities. He provided the names and contact details of his treating physiotherapist, general practitioner and specialist orthopaedic surgeon, who had all treated his foot. Mr Saxton’s evidence was that before his injury in 1999 he had no difficulty with his right ankle and indeed his right foot. He had a climbing accident in New Zealand and had a right ankle reconstruction in 1986. Mr Saxton said that after this his ankle was “wonderful”. In cross-examination, Mr Saxton confirmed he has a condition in both knees called chondromalacia patella. He told the Tribunal that he had arthroscopic surgery on both knees about 20 years ago.

Immediately prior to October 1999, Mr Saxton told the Tribunal that he was running 2.4km in around 11 minutes. He snow skied annually and was a keen bushwalker. Prior to October 1999, his right foot was never an issue. Mr Saxton gave evidence that following the injury he suffered pain and now had difficulty carrying on his hobbies of snow skiing and bush walking. He also claimed that his surf patrol duties were affected because his foot hurt when the motorized rubber dingy bounced. He could not lift heavy objects or stand for long periods without pain and pain caused him difficulty with long flights of stairs. He could manage a few stairs up or down but his gait felt awkward. He could walk in padded shoes but hard shoes such as boat shoes caused enough pain to make walking difficult after about 20 minutes.

Dr Trevitt’s evidence

5.        On 19 March 2004, Dr Trevitt, Orthopaedic Surgeon, examined Mr Saxton and produced a report. He reported that Mr Saxton complained about variable pain in the lateral column of his right foot and across the dorsum of the foot at the base of the metatarsals. He watched Mr Saxton negotiate a flight of stairs and found his gait normal, smooth and symmetrical.  He did note that Mr Saxton held his right extremity in a few degrees of external rotation but did not consider this abnormal. Despite taking “a careful history” and noting Mr Saxton’s description of pain which occurred after certain distances, when he negotiated grades and steps, and particularly after walking with heavy loads, Dr Trevitt found no whole person impairment. He observed that Mr Saxton did not describe actual difficulty “but rather increasing pain”. He found the right foot “essentially normal” apart from the lateral scar from previous surgery.

6.        Dr Trevitt said he had been unaware of any knee injury and had not examined it but, under questioning, he gave his opinion that the knee injury previously suffered by Mr Saxton would cause pain and maybe a limp. In these circumstances, it would be difficult to know if a limp were caused by the knee or the ankle. Dr Trevitt also noted that Mr Saxton had not complained of any symptoms as a result of his ankle reconstruction in 1986 after the climbing accident in New Zealand. He had claimed that his problems stemmed from the 1999 injury. Noting that other medical records showed that he had injections when his foot was sore from running, Dr Trevitt opined that it was hard to imagine that he had no symptoms after the reconstruction. We compared this with the reports of Doctors Lam and O’Brien which showed no ongoing problems from former injuries.

7.        Counsel for the Commission referred to documents obtained under summons and tendered to the Tribunal. These included a report based on a CT scan in 2001 and a report based on an X-ray in 2000. Dr Trevitt gave evidence that the x-ray report dated 6 December 2000 indicated a fracture that had healed. It showed a slight deformity at the base of Mr Saxton’s fifth metatarsal that was of no importance as to function or the likelihood of arthritis. This indicated that the injury Mr Saxton suffered in East Timor left him with no permanent impairment. Although Dr Trevitt’s written report answered “yes” to questions about whether Mr Saxton had impairment from the compensable condition, he assessed it below as “0%”. In his oral evidence, he clarified that he considered Mr Saxton suffered no impairment as a result of the Timor injury.

8.        Concerning the CT scan report, dated 25 July 2001, Dr Trevitt observed that the area of the scan was of the ankle and hind foot rather than the Timor injury and indicated previous surgery. He opined that another injury would be responsible for any pain in the upper arch of the foot. He thought it possibly would be related to the New Zealand episode and that it was not related to the Timor injury.  He disagreed with Dr Wallace that this might be caused by the metatarsal strain as bony changes would not show on the CT scan within so few years of the injury.

9.        Dr Trevitt told the Tribunal that he had tested Mr Saxton on steps and discerned no asymmetry. His report stated that Mr Saxton was observed walking up and down and his gait was “symmetrical, well coordinated and normal”. When questioned, Dr Trevitt said that he thought Mr Saxton had a slightly strange gait but not abnormal. Dr Trevitt also said that he did not ask Mr Saxton about the consequences of any pain he felt as this was a subjective phenomenon and had nothing to do with the objective tests of function. He asked Mr Saxton for his symptoms and based his opinion on the responses and his observation of Mr Saxton.

10.      As to skiing, Dr Trevitt gave evidence that if a person skied occasionally, he or she should expect some problems. One should train for skiing up to the point where it is no longer uncomfortable. He did not suggest training for steps and grades but for any sporting activity, including skiing. As to Mr Saxton’s evidence about suffering discomfort after 7 or 8 kilometres during an 11 kilometre bushwalk, Dr Trevitt commented that it was more likely to result from the reconstruction and that one is not required to make an assessment based on pain but on function when considering the tables. He was not surprised that unusual activity would cause Mr Saxton discomfort. Further, although Mr Saxton had told the Tribunal he tried to keep a high level of physical fitness and he now could not run as well as people that he used to train with, Dr Trevitt stated that he thought Mr Saxton was very fit. He also thought it was entirely reasonable for Mr Saxton to complain of pain. However, Dr Trevitt was of the opinion that the extent to which Mr Saxton felt pain did not amount to “difficulty” for the assessment.

Dr Wallace’s evidence

11.      Dr Wallace provided two reports, both dated 28 November 2003. One was a detailed report and diagnosis and the other provided his opinion of whole person impairment of 20% according to the Guide. He told the Tribunal in oral evidence that he had referred to two radiologist’s reports and that these were consistent with his diagnosis that the injury was to the inside arch of Mr Saxton’s foot.  He explained that the inside arch of the foot is important to forward movement. He had also made note of Mr Saxton’s reported difficulty with walking up and down slopes and walking long distances, as well as climbing stairs. He gave evidence that, in his opinion, his injury would cause problems with these activities. He said that the inner arch acts like a spring and walking would become more painful with distance.

12.      Dr Wallace referred to Mr Saxton’s past history as well as his present complaints and noted that Mr Saxton had undergone surgery for a tendon repair to the same foot in 1986. His report on examination of Mr Saxton noted that “his gait was normal but that he had an immediate onset of pain at the right foot on attempting stepping up and down on a stool”.

13.      Dr Wallace told the Tribunal that he had not been aware that Mr Saxton had chondromalacia patellae or a knee injury as he had concentrated on the ankle and foot. Also, in his report dated 28 November 2003, Dr Wallace made no reference to an ankle reconstruction in 1986. On questioning by Dr Thorpe, Dr Wallace considered that Mr Saxton suffered metatarsal and midtarsal injury to the right foot caused by a weight bearing inversion of the foot and it was this injury that affected his ability regarding grades, steps and distances.

14.      The injury Mr Saxton described was consistent with “a weight bearing inversion force at the right foot”. Dr Wallace gave evidence that Mr Saxton’s history, including treatments by Dr O’Brien, was consistent with his diagnosis. This was consistent with Dr O’Brien’s having noted some osteoarthritis and giving Mr Saxton injections in 2001 and 2003  and referring him to Dr Lam, who noted some improvement to pain since the 2001 injection. Dr Wallace admitted he did not consider the effect of Mr Saxton’s known knee problems. However, he said this did not affect his consideration of the metatarsal and midtarsal injury and the effect on his ability regarding grades, steps and distances. In Dr Saxton’s opinion, Mr Saxton would not be able to handle them because of the foot anyway.

15.      Dr Wallace said he saw Mr Saxton once only and did not test outside the limits of his surgery as to what difficulty Mr Saxton had on grades, steps and distances but observed that pain was the problem rather than actual difficulty. He noted that Mr Saxton was firm that he would experience pain. Dr Wallace found that Mr Saxton was not fit to return to full-time service and activities that involved repetitive bending or twisting movements at the right leg, standing in one position for prolonger periods, repetitive lifting above 15 kilos, working in confined spaces, at heights or on ladders or prolonged periods of walking or stair climbing. He thought he would benefit from physiotherapy, massage and medication. However, his condition was permanent and had been in April 2000, six months after his injury of October 1999. His condition had stabilised and all reasonable rehabilitative treatment had been undertaken. Finally, Dr Wallace concluded 20% impairment taking into account grades without distances was equal to 5% impairment and the three problems, grades, steps and distances was equal to 10% or 20% impairment.

16.      When considering Mr Saxton’s ability to climb 7 flights of stairs, which Mr Saxton had earlier told us caused him considerable difficulty, Dr Wallace gave evidence that he would define pain in completing a task as “difficulty”. He also expected someone Mr Saxton’s age not to complete the task without stopping. Dr Wallace suggested that taking “cerebrex” could assist his ability but declined to comment on whether, if Mr Saxton took medication he would have normal ability to complete the tasks of which he complained that he had difficulty. We note that cerebrex generally is a treatment for pain.

consideration

17.      Mr Saxton’s injury to the metatarsals is not in dispute. We accept that Mr Saxton experiences some pain from the injury when he undertakes activities such as skiing for long periods and distances, walking long distances and climbing several flights of stairs and that the injury is permanent. What is in dispute is the level of impairment caused by the injury.

18.      Section 24 of the Act requires at least 10% impairment for compensation to be payable. Dr Raymond Wallace, orthopaedic surgeon, on behalf of Mr Saxton says he has 20% impairment as a result of his injury. Dr Bruce Trevitt, orthopaedic surgeon, on behalf of the Commission says not. Mr Saxton’s evidence was that he experienced pain when negotiating steps and grades and distances. His further evidence was that this amounted to a difficulty for him and he related instances such as walking up from the Quay in Sydney and going on a bushwalk when he experienced pain. On another occasion, he had to sit down before continuing up seven flights of stairs.

19.      Table 9.5 deals with limb function of the lower limb. An assessment of 10% under Table 9.5 requires a difficulty with grades and steps. The next available assessment under the table is of 20% and this requires a difficulty with grades, steps and distances. The impact of this is that Mr Saxton must show, as a minimum, that he has difficulty with grades, steps and distances to qualify for compensation as to the 20% impairment he claims.

20.      The medical evidence in this application is at variance.  At one end of the spectrum is Dr Trevitt’s assessment of no whole person impairment and at the other end is Dr Wallace’s assessment of 20% impairment. It is notable that neither Dr Trevitt nor Dr Wallace observed any abnormality in Mr Saxton’s gait, although Mr Trevitt thought he did exhibit a strange gait.  Dr Trevitt also gave evidence before the Tribunal that it was hard to say that some of Mr Saxton’s symptoms might be caused by Mr Saxton’s knee injury or the foot injury. He thought Mr Saxton’s 1986 foot injury might still cause him some problems although Mr Saxton did not think this was the cause of his pain on walking and skiing or dealing with steps and grades et cetera.

21.      Unfortunately, Mr Saxton did not disclose his former injuries to Dr Wallace. This casts some doubt on Dr Wallace’s opinion that Mr Saxton’s difficulties were entirely attributable to his Timor injury. By comparison with the case of Amorebieta and Comcare (1994) 35 ALD 603, it is a more difficult task for us to find that the underlying cause of Mr Saxton’s problems is due to the Timor injury only. As Dr Wallace was not aware of the 1986 injury and reconstruction and neither Dr Wallace nor Dr Trevitt were aware of the former knee injury when they carried out their examinations of Mr Saxton, it is inherently difficult to make a firm finding that the Timor injury alone is the identifiable cause of Mr Saxton’s pain and that it is severable from his other injuries. In any case, we are more persuaded by the evidence of Dr Trivett than that of Dr Wallace that Mr Saxton’s pain is not such as to cause any more than discomfort and that it does not amount to an impairment of 10% or 20% under Table 9.5.As indicated by Counsel for the Commission, when one looks at the details of Mr Saxton’s evidence, one finds that no matter how confidently or humbly it might be given at the time, he does not always say the same thing and this has become a problem for assessment.

22.      We have further considered the possibility that the Timor injury may have aggravated Mr Saxton’s earlier foot and knee injuries. This was raised as a possibility in Amorebieta as well. However, as the Tribunal found in that case, we also are unable to identify from the evidence before us whether the Timor incident changed the underlying pathology of Mr Saxton’s condition and brought about an aggravation or exacerbation. None of the medical opinion suggests this is so and Mr Saxton has attributed his problems solely to the Timor injury.

23.      On balance, taking the medical evidence and Mr Saxton’s evidence into account, we are not satisfied that Mr Saxton has difficulty, other than some pain, with grades, steps and distances. The ensuing limitations on his ability with grades, steps and distances are less than significant. For example, it was suggested his skiing for long periods would be assisted by the wearing of an appropriate boot to reduce strain. As well, Mr Saxton said he could walk longer in soft shoes than he could in hard soled shoes like boat shoes. He further said he could climb a few stairs before experiencing pain. It was only after several flights that he had to stop for a rest on the occasion he described to us. It follows that we are not satisfied that his condition attracts any allocation under Table 9.5 of the approved tables. Our reasons follow.

24.      To meet the threshold of 10% under Table 9.5 of the Guide, Mr Saxton 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. He does not suggest that he cannot rise to stand and walk; but, claims he has difficulty with grades and steps and with distances.

25.      Subsection 24(5) of the Act provides that the degree of permanent impairment is to be determined according to the Guide to the Assessment of the Degree of Permanent Impairment prepared pursuant to sub-section 28(1) of the Act. In the explanation preceding the Tables, the statement is made that “as far as possible objective criteria have been used”.

26.      In addition, the term “difficulty” was considered by the Full Court of the Federal Court in Comcare v Fiedler (2001) 115 FCR 328. The Court considered the phrase “difficulty with digital dexterity” in Table 9.4 of the Guide. The Court rejected the view that difficulty would only arise where there were “very severe” or “very significant or substantial” descriptions of the degree of difficulty as had been favoured in earlier Tribunal decisions. The Court noted the word "difficulty" has no fixed meaning but is a word capable of covering a “broad spectrum of restriction and disability”. It considered 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”. Using this yardstick, the Court decided that something more than minimal problems was required. However, if a person found it troublesome or not easy to do tasks, adopting the approach in Whittaker v Comcare (1998) 86 FCR 532 at 544, the Court found that this would justify a 10% impairment assessment under Table 9.4.

27.      A similar approach to that in Fiedler (supra) was followed in the Tribunal case of Carman and Comcare [2002] AATA 946 in relation to a case for assessment under Table 9.5. Member Kenny noted the applicant would have difficulty if he found it troublesome or not easy to negotiate grades, steps and/or distances. As well, the limitation need not be significant or substantial but it must be more than slight or minimal. The Tribunal accepted the submission that pain may be taken into account as the source of difficulty in performing an activity and referred to other Tribunal cases where this had been considered. We agree that, while pain may be taken into account as a source of difficulty in performing an activity, that is not to say that the mere presence of pain, without more, means that difficulty is experienced.

28.      We note the reference in the relevant Principles of Assessment to objective criteria and consider that, before there can be a finding that there is difficulty in performing a task because of pain, there must be some objective manifestation of that pain which reveals the difficulty. It is not appropriate to equate pain with difficulty and to allocate impairment ratings for matters which more properly fall for consideration as lifestyle effects for assessment under non-economic loss: see, for example, Re Watkins and Comcare [2002] AATA 613 at paragraph 92, and Carman (supra).

29.      The Principles of Assessment provide that impairment is measured against the effect on personal efficiency in activities of daily living in comparison with a normal healthy person.  Mr Saxton was assessed by the doctors who gave evidence before the Tribunal as fit for a person of the same age. We accept that he has lost some ability to walk long distances and other activities to the level he enjoyed previously because of pain in his foot, but Mr Saxton, nevertheless, is a fit and healthy person with only a small affect from his foot injury. This assessment accords with Dr Trevitt’s opinion and with Mr Saxton’s description of his capabilities, even though these are reduced from his ability as a younger and fitter man.

30.      The evidence of Mr Saxton also was that his gait had changed but no more that a slightly strange gait was observed by either Dr Trevitt or Dr Wallace. While Dr Wallace holds the opinion that Mr Saxton can no longer meet the level of fitness required for service, we are satisfied that he does not experience difficulty with grades or distances which can be described as troublesome to him or as not easy for him, in the objective sense that those phrases are used in Fiedler (supra). It follows that he does not meet the threshold level of 10% whole person impairment in Table 9.5 of the Guide. Similarly, we are not satisfied that Mr Saxton experiences the degree of trouble with distances that would bring him within the Principles of Assessment for 20% whole person impairment under the second part of Table 9.5. It follows that the decision under review should be affirmed.

DECISION

31.          The Tribunal affirms the decision under review.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of  Senior Member Robin Hunt and Member Dr Max Thorpe

Signed:         .....................................................................................
Zoe McDonald
Associate

Dates of Hearing: 23 March and 22 June 2005
Date of Decision: 24 October 2005
Counsel for the Applicant: Mr Rourke
Solicitor for the Applicant: D’Arcys Solicitors       
Counsel for the Respondent: Mr Johnson
Solicitor for the Respondent: Australian Government Solicitor