Sell and Comcare
[2003] AATA 711
•19 June 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 711
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2002/110
GENERAL ADMINISTRATIVE DIVISION ) Re Rodney Spencer SELL Applicant
And
Comcare
Respondent
DECISION
Tribunal Mr G A Mowbray, Member Date19 June 2003
PlaceCanberra
Decision For reasons given orally the Tribunal sets aside the Respondent's decision of 31 October 2001 and remits the matter to the Respondent for reconsideration with a direction to give effect to the findings of the Tribunal as set out in the reasons for decision that:
(a) Mr Sell’s compensable condition, namely “bilateral anterior compartment syndrome, right posterior and borderline left posterior compartment syndrome”, has resulted in a permanent impairment under section 24 of the Safety, Rehabilitation and Compensation Act (“the Act”);
(b) The degree of permanent impairment resulting from the compensable condition is 20% under Table 9.5 of the “Guide to the Assessment of the Degree of Permanent Impairment” (“the approved Guide”);
(c) Mr Sell is entitled to additional compensation for non-economic loss under section 27 of the Act in accordance with the following scores under Part B of the approved Guide:
· Pain 4
· Suffering 3
· Mobility 2
· Social Relationships 1
· Recreation and Leisure Activities 3
· Other Loss 2
· Loss of Expectation of Life 0
The Tribunal orders the Respondent to pay the Applicant’s costs as agreed or taxed.
..................[signed].................
Member
CATCHWORDS
COMPENSATION - permanent impairment - degree of impairment - difficulty with grades, steps and distances - meaning of "difficulty" - jurisdiction to consider non-economic loss
Safety, Rehabilitation and Compensation Act 1988 ss 24, 27
Administrative Appeals Tribunal Act 1975 s 43(1)
Comcare v Nichols [1999] FCA 209
Re Nguyen and Comcare (AAT 10133, 18 April 1995)
Comcare v Moon [2003] FCA 569
Comcare v Fiedler (2001) 115 FCR 328; 34 AAR 237
Re Mooney and Australian Postal Corporation (AAT 9969, 27 January 1995)
Re Curtis and Australian Postal Corporation (AAT 10098, 30 March 1995)
Re Watkins and Comcare (2002) 69 ALD 498; [2002] AATA 613
Re Nuss and Comcare [2002] AATA 170
Re MacDonald and Australian Postal Corporation [2003] AATA 388
Australian Postal Corporation v Oudyn [2003] FCA 318
Lees v Comcare (1999) 29 AAR 350; 56 ALD 84
REASONS FOR DECISION
28 July 2003 Mr G A Mowbray, Member History of the Application
1. On 23 August 2000 Mr Rodney Sell completed a claim for rehabilitation and compensation for shin splints and compartment syndrome. He stated that he had first received treatment in June 1997 and that the condition was due to running in boots and jumping in and out of vehicles.
2. On 5 September 2000 the Department of Veterans' Affairs as delegate for Comcare accepted liability for "bilateral anterior compartment syndrome, right posterior and borderline left posterior compartment syndrome”. For the purposes of the Safety Rehabilitation and Compensation Act 1988 (“the Act”) the date of injury was determined to be 27 May 1997 when treatment was first sought.
3. On 19 January 2001 Mr Sell's solicitors requested that he be formally assessed for eligibility for lump sum compensation pursuant to sections 24 and 27 of the Act. On 3 August 2001 the Department of Veterans' Affairs as delegate determined that no payment could be made under sections 24 and 27 of the Act. On 31 August 2001 Mr Sell's solicitors requested a reconsideration of the determination and on 31 October 2001 the Department decided to affirm the determination of 3 August 2001.
4. The Tribunal received an application for review of the decision on 2 January 2002. The matter was heard on 16 June 2003. Mr Sell was represented by Mr Wayne Arthur of counsel and Comcare was represented by Mr Charles Clark of counsel. Oral reasons for decision were given on 19 June 2003 setting aside the decision under review and remitting the matter with a direction to give effect to the findings of the Tribunal in those reasons.
5. On 24 June 2003 the Tribunal received a request for written reasons for the decision from Comcare’s solicitor pursuant to 43(2A) of the Administrative Appeals Tribunal Act 1975. The request was confirmed in writing on 26 June 2003. Accordingly these written reasons have been prepared based on the reasons given at the hearing with appropriate minor editing.
Background
6. Mr Sell was born on 10 May 1972 making him currently 31 years of age. He enlisted in the army on 24 September 1994 and served at Kapooka, Puckapunyal, Townsville and Duntroon. He was medically discharged on 27 August 2000.
Legislation
7. The following provisions of the Act are relevant
“4 Interpretation
(1) In this Act, unless the contrary intention appears:
…
“impairment” means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
…
“non-economic loss”, in relation to an employee who has suffered an injury resulting in a permanent impairment, means loss or damage of a non-economic kind suffered by the employee (including pain and suffering, a loss of expectation of life or a loss of the amenities or enjoyment of life) as a result of that injury or impairment and of which the employee is aware.
…
“permanent” means likely to continue indefinitely.
…”
“24 Compensation for injuries resulting in permanent impairment
(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee's condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(7) Subject to section 25, if:
(a) the employee has a permanent impairment other than a hearing loss; and
(b) Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
…”
“27 Compensation for non-economic loss
(1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
(2) The amount of compensation is an amount assessed by Comcare under the formula:
[$15,000 x A] + [$15,000 x B]
where:
A is the percentage finally determined by Comcare under section 24 to be the degree of permanent impairment of the employee; and
B is the percentage determined by Comcare under the approved Guide to be the degree of non-economic loss suffered by the employee.
…”
8. The references in the Act to the “approved Guide” are to the “Guide to the assessment of the degree of permanent impairment” issued by Comcare. Part A of the approved Guide contains tables for the calculation of the degree of permanent impairment. Table 9.5 is headed “Limb Function – Lower Limb”
“% DESCRIPTION OF LEVEL OF IMPAIRMENT
10Can rise to standing position and walk BUT has difficulty with grades and steps
20Can rise to standing position and walk but has difficulty with grades, steps and distances
30Can rise to standing position and walk with difficulty BUT is limited to level surfaces
50Can rise to standing position and maintain it with difficulty BUT cannot walk
65Cannot stand or walk”
9. Part B of the approved Guide contains tables for the assessment of non-economic loss. Without setting out their full contents, the relevant tables in this matter are Table 1 (Pain and Suffering, with scores from 0 to 5 assigned for both pain and suffering), Table 2 (Loss of Amenities, with scores from 0 to 5 assigned for mobility, social relationships and recreation and leisure activities), Table 3 (Other Loss, assigned a score from 0 to 3) and Table 5 (Combined Value Calculation).
10. Section 43(1) of the Administrative Appeals Tribunal Act1975 is also relevant in this matter
“43 Review by Tribunal
…
(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a) affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and:
(i) making a decision in substitution for the decision so set aside; or
(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
…”
Evidence
11. The evidence before the Tribunal consisted of the “T-documents” T1 to T21 lodged under section 37 of the Administrative Appeals Tribunal Act1975, Mr Sell’s documents A1 to A3 and Comcare’s documents R1 to R4 which included a video, Exhibit R3. Oral evidence was received from Mr Sell and Dr Andrew Lark.
Consideration of Issues and Findings
Issues
12. There are two broad issues before the Tribunal
· whether Mr Sell is entitled to compensation for permanent impairment under section 24 of the Act
· if so, what additional compensation under section 27 for non-economic loss is he entitled to.
I note that Comcare disputes the Tribunal's jurisdiction in relation to the second of these issues. This is a matter to which I will return.
13. A number of matters were not in dispute
· Mr Sell suffers from a disease condition of "bilateral anterior compartment syndrome, right posterior and borderline left posterior compartment syndrome"
· liability for this condition as contributed to by his military service has been accepted – I will refer to it as “the compensable condition”
· the date of injury has been determined at 27 May 1997
· although Comcare’s Statement of Facts and Contentions seems to question the permanence of this condition, this was not pursued in Comcare's evidence or in submissions at the hearing
· the relevant table in Part A of the approved Guide is Table 9.5.
The burden of persuasion
14. It is neither particularly apt nor appropriate to refer to a common law concept of a burden or onus of proof placed on a particular party in administrative proceedings in the Tribunal. However there has been a line of authority in both the courts and the Tribunal on what has been described as the “burden of persuasion” in these matters.
15. For claims to establish liability for an injury or permanent impairment flowing from that injury, the Tribunal must be satisfied on the balance of probabilities of the existence of the injury or the permanent impairment and that they were work related. A succinct statement of this is found in Comcare v Nichols [1999] FCA 209 where Justice Heerey said at [23]
“However Mrs Nichols also contended that (i) she had a cervical spondylosis (ii) which was work-related and (iii) which contributed to her present incapacity. If all three elements were established she would have an entitlement to compensation. The Tribunal had to be satisfied of the existence of each element.”
What percentage of whole person impairment does Mr Sell suffer
16. To meet the threshold of 10 per cent under Table 9.5 of the approved Guide Mr Sell must be able to rise to a standing position and walk but have difficulty with grades and steps. For the threshold of 20 per cent under that table he must be able to rise to a standing position and walk but have difficulty with grades and steps and distances.
17. Both Mr Arthur for Mr Sell and Mr Clark for Comcare referred me to helpful authorities relevant to Table 9.5. The elements identified in each description, for example “grades, steps and distances”, must be read conjunctively (Re Nguyen and Comcare (AAT 10133, 18 April 1995). Furthermore the term "difficulty" is not a term of art but carries its ordinary meaning (Comcare v Moon [2003] FCA 569).
18. In Comcare v Fiedler (2001) 115 FCR 328; 34 AAR 237 the Full Court considered the phrase "difficulty with digital dexterity" as it is used in Table 9.4 of the approved Guide. The Court rejected the view expressed in earlier Tribunal cases that such difficulty would only arise where that difficulty is “very severe” or “very significant or substantial”
22. … The word “difficulty”, like most ordinary English words, has no fixed meaning but is… a word capable of covering a broad spectrum of restriction and disability in the context of a phrase such as “difficulty with digital dexterity” in Table 9.4. According to the Macquarie Dictionary, 3rd ed, “difficulty” connotes a range of conditions from being “not easy”, to being “hard to do”, to “requiring much effort”. According to the Oxford English Dictionary, 2nd ed, it connotes notions of not being easy, of requiring effort or labour, of being troublesome or hard to do, perform or carry out. An injury that leaves a person in the position of requiring much effort to perform tasks calling for digital dexterity involves a markedly more serious impairment than does an injury which makes it not easy or troublesome for a person to perform such tasks.
23. Something more than minimal problems with digital dexterity is required. But if a person, as a result of his injury, finds it troublesome or not easy to do tasks requiring digital dexterity, that will, adopting the approach to interpretation required by Whittaker [Whittaker v Comcare (1998) 86 FCR 532] at 544 - 545, justify a 10% impairment assessment under paragraph 1 of Table 9.4.”
19. Applying that interpretation to Table 9.5 of the approved Guide, Mr Sell will have difficulty if he finds it troublesome or not easy to negotiate grades, steps and distances. The limitation need not be significant or substantial but it must be more than slight or minimal.
20. In Re Mooney and Australian Postal Corporation (AAT 9969, 27 January 1995) the Tribunal stated at [34]
“The test is not so much whether the applicant can walk any particular distance, but, rather, whether he experiences difficulty in doing so. Experiencing pain amounts to “difficulty” in that it makes the function of walking harder to perform.”
21. In Re Curtis and Australian Postal Corporation (AAT 10098, 30 March 1995) the Tribunal said at [53] referring to Re Mooney
“[A] person may be said to “have difficulty with” performing an activity in the abovementioned sense either because of a loss of physical ability to perform the activity or because of the experience of pain in performing the activity.”
22. In Re Watkins and Comcare (2002) 69 ALD 498; [2002] AATA 613 the Tribunal pointed out that
“92. While pain and weakness may each be taken into account as a source of difficulty in performing an activity, that is not to say that the mere presence of pain or of weakness, without more, means that there is difficulty experienced. The Tribunal notes the reference in the relevant Principles of Assessment to objective criteria… and is satisfied that, before there can be a finding that there is difficulty in performing a task because of pain, weakness or some other factor, there must be some objective manifestation of that pain or weakness which reveals the difficulty. To find otherwise would be to equate pain or weakness with difficulty and to allocate impairment ratings for those matters which more properly fall for consideration as lifestyle effects for assessment under non-economic loss.”
23. Re Nuss and Comcare [2002] AATA 170 makes it clear that the comparison is to be made against a normal healthy person of similar age
“61. … [T]he Principles of Assessment… provide that impairment is measured against its effect on personal efficiency in the “activities of daily living” in comparison with a normal healthy person. In the context of that overall Principle, the distances to be considered for Table 9.5 of the Guide are those that are expected to be traversed by a normal healthy person and, for the basis of comparison, this would need to be a male person of the same age as the applicant. This was the approach adopted in the Tribunal decisions of Re Whelan and Department of Defence (1997) 47 ALD 383 at 399 and Re Morley and Comcare (1996) 40 ALD 725 at 731.”
I note in passing that in that case the Tribunal went on to comment
“62. … The Tribunal is not in a position where it can make findings on what are the upper limits of the walking ability of a normal healthy male person of the applicant’s age [of 34 years] and without his foot condition. However, it would be surprising if such a person were not able to walk a distance in the order of one to two kilometres without finding it troublesome.”
24. Mr Sell gave both written and oral evidence to the Tribunal. In his written statement (Exhibit A2) he said that prior to joining the Army he involved himself in a whole range of activities including bush walking, cross-country skiing, downhill skiing, abseiling, caving, climbing, mountain-bike riding, orienteering, metal detecting and relic hunting. He stated
“7. Since the development of compartment syndrome, I have had to curtail all of the above listed activities. As any prolonged standing or walking, causes pain at the time and for the following days. I now have to be careful in what I do as everything causes me pain I avoid stairs as they present a problem…”
25. He went on in his statement to say that his wife has had to perform more of the tasks around the house that he once did, such as vacuuming or standing to do the dishes at night. He now had to do this latter task in short sessions, as standing on a hard floor would make his legs ache unbearably, to the point that a family member gave them a dishwasher. He pointed out that mowing the lawn now had to be done over the week to give his legs a chance of recovering.
26. Some of the other activities he has had problems with are working in the garden (the time he can do this being limited), playing with his son and taking the dog for a walk each night. The distance he can walk has, he says, been reduced so much that "I just let the dog go for a run over at the school oval".
27. The current difficulties listed in his statement include
· prolonged sitting and standing in the one place. After 5 to 10 minutes he has to start moving or his legs start to ache
· when doing the shopping he can only shop for a few days groceries at a time as his legs ache walking around the supermarket
· walking on uneven ground to mow the lawn or walking the dog creates pain so that he needs to be careful of the distances and the terrain that he is walking on.
28. Mr Sell expanded on these points in his oral evidence. At work he uses the stairs only about once per month. He takes it easy going up. He holds the handrail when descending as he feels pain in the front of his legs which makes him uneasy. He does not, he said, have to use the handrail but he feels more comfortable doing so.
29. At home he has about 10 or 11 stairs at the front of his house but at the back an access ramp and only one stair. He therefore usually enters and leaves his home at the back. On occasions he uses the front stairs, for example if he is seeing guests off. He said he might go up the front stairs about once a month, usually slowly, one step at a time and always holding the handrail. There are no internal stairs in the house.
30. Mr Sell gave evidence that he meanders or dawdles when walking up the slope from the street to his house or up the driveway. He has more problems descending slopes, ramps and stairs than ascending them. There is more pain when he descends. He also has problems on uneven ground.
31. If shopping, for example, he can walk 200 to 300 metres without pain. Distances greater than this result in his legs aching for the rest of the day. The maximum distance he can walk, even with pain, would be about one kilometre but it would need to be in a stop/start fashion. On all occasions his walking speed is reduced but some days are worse than others and his speed is also more reduced later in the day.. When pressed by Mr Clark he suggested a reduction of 30 to 40 per cent from a normal walking speed. He usually wears either Nike runners with air soles to reduce impact or a light work boot. After being shown a video he conceded that he sometimes wears soft-soled thongs when it is warm.
32. The medical evidence before me on Mr Sell's difficulties with grades, steps and distances was provided by Drs Baz, Lark, Scott and Marshall. Only Dr Lark was available for oral evidence.
33. Dr Martha Baz, an occupational physician, saw Mr Sell on 27 October 2000. In her report (T13) she recorded his symptoms
“He describes pain in varying severity in both shins depending on his level of activity. Walking, standing, prolonged sitting and then walking, and running increase the pain. He estimates his walking tolerance is now 1km. He has more problems on hills and stairs. He can sit for 1 hour with comfort. He stands for 30 minutes or less at a time. He did some running prior to surgery but has not done any since. When he has tried to hurry, for example to cross the road, the pain increases.
…
Mr Sell reports that mowing the lawn and undertaking heavier household tasks aggravate the ache in the leg. He needs to wear covered, cushioned shoes to minimise the shin discomfort.. He has difficulty climbing ladders, standing for example to do dishes and walking at the supermarket. These activities aggravate the pain.”
34. Dr Baz's assessment was
“In my opinion Mr Sell has difficulty with grades, steps and distances as a consequence of the anterior compartment syndrome. I consider that while there maybe [sic] some improvement in symptomatology with further surgery, it is most likely he will always have difficulty with grades, steps and distances due to anterior compartment syndrome.
Table 9.5 allows an impairment rating of 20.”
35. Mr Sell next saw Dr Andrew Lark, also an occupational physician. This consultation took place on 5 July 2001 at Health Services Australia. Unlike the other medical specialists who examined Mr Sell, Dr Lark's assessment followed an examination of Mr Sell walking up to 300 metres through the Woden Bus Interchange and ascending and descending ramps and stairs. Dr Lark's functional assessment (T14 at p.57) was
“Significantly reduced gait speed in all circumstances with mild limp at times.
· Use of handrail on stairs.
· Brief stops at times.”
However, based on this assessment Dr Lark strangely determined a whole person impairment of less than 10 per cent.
36. Dr Lark provided further reports dated 18 and 19 November 2002 (both part of Exhibit R4) after reviewing a video of Mr Sell. In the report of 18 November 2002 he said
“The records indicate that I went for a walk with Mr Sell in the environs of the HSA Building at Woden. I observed that there was significantly reduced gait speed in all circumstances (i.e. on the flat, inclines and stairs) with a mild limp. I observed the use of the handrail on stairs. The records also indicate that Mr Sell stopped briefly at times during the walk. (Refer to section 20 of the NELQ [Non-economic loss questionnaire].)
The rating of less than 10% means that it was concluded that Mr Sell was able to rise to the standing position and walk, and did not have difficulty with grades and steps as medical assessors had been advised by MCRS [Military Compensation & Rehabilitation Service].
I recall that instruction was received by management of AGHS/HSA from MCRS concerning interpretation of the word "difficulty" in relation to table 9.5. My recollection of this instruction is that in cases where the subject could get up a couple of steps they were not seen by MCRS as having difficulty.
My own personal opinion, using my own estimation of the word difficulty and applying that to the records in section 20 of the NELQ, would have been that Mr Sell was having difficulty with grades and steps. I would not expect for example that a man of 29 years would have to use a handrail to negotiate a few flights of steps. I was not however being asked to use my personal view of the word "difficulty".
37. In his report of 19 November 2002 Dr Lark commented on the video footage
“In relation to the material on the video, the subject is not seen to move quickly at any time.
Comparing the video material to the relevant parts of the statement by Rodney Spencer Sell dated 17th March 2002 (there is a six month time difference between the statement and the video material which is labelled September 2002) the only possible inconsistency between the video material and the statement (paragraphs seven to nine inclusive) is that the tape shows the subject walking up approximately eight steps to get to the front verandah of the house. The statement indicates “I now have to be careful in what I do as everything causes me pain I avoid stairs as they present a problem…” (from paragraph 7). It is not clear from the tape if there is another way to enter the house."
38. In his oral evidence Dr Lark confirmed that Mr Sell's gait speed was reduced in all circumstances including when using stairs. He said the distance covered in his walk with Mr Sell was unlikely to be greater than 300 metres. Mr Sell had difficulties with slopes, stairs and distances. As a general proposition, descending stairs often presented more problems than ascending them. Although his assessment was based upon his observations, Dr Lark also relied to some extent on Mr Sell's own history. In Dr Lark's view nothing in the video was so "glaringly obvious" so as not to be the same person he had seen in his own assessment. I took this to mean that the video had not made him change his view.
39. Dr Lark testified that the apparent inconsistency between his rating of less than 10 per cent and his functional assessment was due solely to the MCRS instruction referred to above. He made absolutely clear that on his understanding of the meaning of the word "difficulty" Mr Sell did have difficulty with steps, grades and distances. If he had disregarded the MCRS instruction Mr Sell would have been assessed at 20 per cent whole person impairment. Dr Lark also indicated that if he had any significant doubts about Mr Sell's history or if he thought Mr Sell was exaggerating his condition he would have indicated that in his report.
40. Dr Lark testified that he would expect a normal male aged 31 would be able to walk two to three kilometres, ascend and descend steps without difficulty and ascend and descend sloping ground without difficulty. An average 31-year-old male might be able to run two to three kilometres.
41. Dr Robert Scott, an occupational physician, saw Mr Sell on 24 June 2002. Mr Sell told him that his Army posting in Townsville had entailed
“[A] considerable time in the field with a lot of running in standard Army boots. As his pain started it became worse with his Service activities. From time to time he reported his problems and was given Ice and Rest with or without non-steroidal anti-inflammatory drugs. He said that his pains became worse, and he could not run in boots and shoes. He was allegedly told that he needed special (softer) boots but they were never provided. He eventually reached the stage with his pain that he could run no more than 200 metres, after which he needed to rest, and then walk. He tried workouts at a Gymnasium and a swimming pool, but ceased any running.
…
Eventually Mr Sell was transferred to the Royal Military College in Canberra. He tried, without success, to resume running.” (Exhibit A3)
42. As to Mr Sell’s current symptoms
“He has difficulty walking, especially on grades, steps and distances. He has leg pain after walking and can walk only less than 200 metres, and then only on level ground.
…
He was observed to be in pain walking up steps, and in walking in the car park – a distance of less than 200 metres.”
It is significant in my view that the latter comment was based on Dr Scott’s own observations rather than Mr Sell’s reporting of symptoms. Mr Sell gave evidence that Dr Scott had not accompanied him on a walk. He thought that Dr Scott must have watched him before or after the assessment.
43. In Dr Scott's opinion
“[H]e has, under Table 9.5 a WPI [whole person impairment] of 20%. This assessment is made on the basis of his history, various reports and my own examination and observations.
In my opinion the whole of this 20% WPI is attributable to the above condition.”
That opinion applied to both “left compartment syndrome condition” and “right compartment syndrome condition”.. Dr Scott reiterated at the conclusion of his report that
“[M]y answers are based on my examination findings and actual observations which included observing Mr Sell on steps, grades and distances.”
44. Professor Vernon Marshall, a Professor Emeritus of Surgery, examined Mr Scott on 22 January 2003. He reported that
“Mr Sell gave his history in a straightforward and open manner. He said that prolonged standing for any length of time caused him to have some pain in the shins and in the soles of the feet. He said that the pain feels as if the area was bruised from an injury and is felt in the shins and is associated with pins and needles and cramps. He notices it also on walking around supermarkets whilst shopping and he may have to sit down. While sitting Mr Sell notices that his legs get fidgety and he needs to get up and move about before re-sitting, otherwise cramps in his legs and in the arches of his feet occur with a tightening feeling...
…
Mr Sell is not able to kick a football or run around with his son as he used to be able to. He does not walk much apart from around the shops when shopping. He does not play any active sport and he does not play golf. He fishes occasionally via jetty fishing. He does little gardening and shares the housework and cooking with his wife. He uses a stool in the kitchen and sits whilst cooking.” (Exhibit R2)
45. In his record of physical examination Professor Marshall reported that Mr Sell had a full range of movement of hips, knees and ankles on both legs. His gait was normal. Professor Marshall assessed a 10 per cent whole person impairment under Table 9.5
“He can rise to standing position and walk, but has some difficulty with walking grades and steps.”
46. Mr Sell can rise to a standing position and walk. The issue then is whether Mr Sell has difficulty with grades and steps and whether he has difficulty with distances. Mr Clark for Comcare submitted the Tribunal should have grave reservations about Mr Sell's evidence and reliability. He submitted that this in turn tainted the clinical evidence.
47. Mr Clark placed substantial reliance on a video filmed for a number of periods on 21 and 22 September 2002 (Exhibit R3). Mr Clark asserted that there were significant disparities between what the video evidence showed and Mr Sell's evidence and the history he provided to the medical practitioners. From the video there was little evidence of a limp or reduced speed. Further, at one point Mr Sell was able to ascend the front stairs of his home without apparent difficulty or holding the rail. Mr Sell was able to remain on his feet for longer periods than he suggested in his evidence. Without the video, Mr Clark said, the picture of Mr Sell's condition would be quite different.
48. However, after a further close and careful examination of the video I do not share Mr Clark's view of it. It is clear that Mr Sell exhibits a reduced gait speed almost all the time, that is, reduced from the gait speed of a normal 31-year-old male. Perhaps it is not reduced by a third as Mr Sell suggested in evidence, but this figure was adduced in cross-examination when invited under some pressure from Mr Clark. Mr Sell was certainly not walking at a normal pace when filmed. He was meandering, or dawdling, as he said. At times a slight limp can be discerned. It is not what I would call a comfortable gait. Mr Sell does at one point ascend the stairs at the front of his house fairly easily, but a close examination of the video reveals that this was in response to some call from the house. He is walking up the drive then looks up, acknowledges a call and changes direction and goes up the front stairs instead of continuing up the drive. I also note that there does not appear to be a significant slope in Mr Sell’s front yard.
49. The video covers only two relatively short periods over two days and the first half of the video is early in the day. All in all I do not think that the video presents such a significantly different picture of Mr Sell to that put by him in evidence to justify a finding that Mr Sell deliberately lied to the Tribunal or to his medical practitioners, or that his evidence was unreliable. This is not to say there were not some inconsistencies. I note that this view is shared by the only medical practitioner who saw the video, Dr Lark, incidentally one of Comcare's witnesses.
50. On the evidence before me I am satisfied that when compared with a healthy 31-year-old male Mr Sell has difficulty with grades, steps and distances. In terms of Comcare v Fiedler he suffers something more than minimal problems. Not only does he suffer pain in undertaking these activities, there is an objective manifestation observed by Dr Lark and to a lesser extent by Dr Scott. In my view Mr Sell finds it troublesome, or not easy, to negotiate grades, steps and distances.
51. I am conscious of the point made by Mr Clark that the medical practitioners have placed significant weight on the subjective history of Mr Sell. But as I have noted above I am satisfied that Mr Sell did not deliberately or unconsciously mislead me. Indeed I find him, as did all of the medical practitioners, to be "straightforward and open" as Professor Marshall said.
52. Furthermore after seeing the video Dr Lark did not resile from his personal view that Mr Sell experienced difficulty. He had previously taken Mr Sell on a walk. The late Dr Scott had also observed Mr Sell apparently at a time when Mr Sell was unaware he was being watched.
53. Three of the four specialists support a permanent impairment of 20 per cent and one, Professor Marshall, only 10 per cent. I note that Dr Lark changed his view when he was informed of the correct understanding of the word "difficulty". Professor Marshall did not observe Mr Sell on a longer walk although he noted Mr Sell had difficulty walking.
54. Mr Clark also suggested that Mr Sell’s non-compensable ankle problem was a significant component in his impairment. Although Mr Sell concedes an ankle problem, Mr Clark's contention that it is significant is specifically rejected by Dr Baz (T13) and Dr Lark (Exhibit R4). Although both Dr Scott and Professor Marshall had Dr Baz's report neither referred to any ankle condition. I am satisfied that Mr Sell's 20 per cent lower limb whole person impairment is attributable to his compensable condition.
55. I therefore find that Mr Sell can rise to a standing position and walk, that he has difficulty with grades, difficulty with steps and difficulty with distances. He therefore has a 20 per cent whole person impairment under Table 9.5 of the approved Guide and accordingly is entitled to compensation under section 24 of the Act.
What is Mr Sell’s entitlement for non-economic loss
56. Mr Clark for Comcare contested that I had jurisdiction to consider non-economic loss under section 27. He submitted that this had not been considered by the review officer and therefore there was no reviewable decision (T21). Furthermore as the delegate who made the primary determination (T19) had found Mr Sell was not entitled to compensation under section 24 she did not turn her mind to section 27, although she determined that no payment could be made under it.
57. Mr Arthur for Mr Sell submitted not only that the Tribunal had jurisdiction but that because there was relevant evidence before me I should make findings on appropriate scores for non-economic loss.
58. I made a ruling on this at the hearing on 16 June 2003 and my reasons for that ruling follow.
59. On 3 August 2001 the delegate made the following determination (T19)
“I have determined that no payment can be made under Sections 24 and 27 of the Act for your accepted condition.”
60. Having regard to my decision in Re MacDonald and Australian Postal Corporation [2003] AATA 388 and the authorities referred therein, and to the recent decision of the Federal Court in Australian Postal Corporation v Oudyn [2003] FCA 318, I am satisfied that the letter of 3 August 2001 constitutes a determination under section 27 of the Act as defined in section 60(1) of the Act. It demonstrates that a mental process has been engaged in, that this has been translated into an overt act, and this overt act gives finality to the conclusion. In my view it is in substance a refusal to grant compensation as requested under section 27 of the Act.
61. On 31 August 2001 Mr Sell's solicitors requested a reconsideration
“On behalf of our client, we now request that our client's claim be formally reconsidered for eligibility for lump sum compensation pursuant to the provisions of Sections 24 and 27 of the Act.
Pursuant to Section 62 of the Safety Rehabilitation & Compensation Act 1988 subsection 3, we hereby request a reconsideration.” (T20)
62. The review officer determined on 31 October 2001
“It is my decision to affirm the determination dated 3 August 2001.” (T21)
Later in the same letter he noted
“As such I have decided to affirm the determination dated 3 August 2001.”
This surely means the determination refusing payment under both sections 24 and 27. In my view this is a reviewable decision under section 62 of the Act.
63. Section 43(1) of the Administrative Appeals Tribunal Act 1975 provides that the Tribunal stands in the shoes of the person who made the decision under review, in this matter the review officer, and as such may exercise all the powers and discretion of this person (see paragraph 10 above). In Lees v Comcare (1999) 29 AAR 350; 56 ALD 84 the Full Federal Court said at [39]
“In considering the extent of the power of the AAT when reviewing decisions under the Act, it is to be noted, first, that the AAT is authorised by s 64 of the Act to review only reviewable decisions – that is, for present purposes, second tier or reconsideration decisions made under s 62 of the Act. Decisions under s 62 of the Act are the result of the reconsideration by Comcare or a licensed authority of a determination, as defined by s 60 of the Act, concerning which a claimant will have received a notice in writing setting out the terms of the determination and the reasons for the determination (s 61(1)). Secondly, it is to be noted that the powers of the AAT under s 43(1) of the AAT Act are powers "[f]or the purpose of reviewing" the reviewable decision, not powers that may be exercised at large. Further, the powers and discretions that the AAT may exercise under s 43(1) are the powers and discretions conferred by the Act on the determining authority for the purposes of reconsidering a determination under s 62 of the Act. The AAT will not be authorised on review of a reviewable decision to exercise any powers and discretions which would not have been available to the determining authority at the second tier decision-making stage, albeit that such powers and discretions might have been available to the determining authority at the first tier decision-making stage.”
64. The powers I have are the powers given the determining officer, that is the review officer, when reconsidering a determination made under section 60, that is the determination of the delegate. Here there is a section 60 determination made under both sections 24 and 27 (T19). I therefore have jurisdiction following an application under section 64 of the Act to consider non-economic loss under section 27 as the three tier decision-making process set out in Lees v Comcare – involving a determination followed by a reviewable decision with scope for application to the Tribunal – has been met.
65. The evidence on the appropriate scores under part B of the approved Guide for the purposes of section 27 is from Dr Lark and Professor Marshall. Dr Lark gave the following scores (T14)
· pain 4
· suffering 3
· mobility 2
· social relationships 1
· recreation and leisure 3
· other loss 2.
He also indicated there was not likely to be any reduction in life expectancy.
66. Professor Marshall gave the following scores (Exhibit R2)
· pain 3
· suffering 4
· mobility 2
· social relationship 1
· recreation and leisure 3.
Professor Marshall gave no score for other loss. I have therefore assumed his score for other loss is zero. He indicated there was not likely to be any reduction in life expectancy.
67. I note in passing that Mr Arthur suggested the total of these scores were 15 and 13 from Dr Lark and Professor Marshall respectively. He has misunderstood the provisions of the approved Guide as weighting has to be applied to the relevant scores. By my calculation the weighted total of Dr Lark’s scores would be 9.1 and of Professor Marshall’s would be 7.1.
68. Mr Clark made no submissions on non-economic loss other than to contest the Tribunal's jurisdiction and to suggest that Dr Lark and Professor Marshall's evidence was tainted because it relied on Mr Sell's subjective history. He suggested therefore that this issue should be remitted to Comcare. I have found that I do have jurisdiction and reject the suggestion in the alternative that this issue should be remitted. Comcare could not have been caught by surprise as the evidence on this issue is from their own medical practitioners.
69. Dr Lark testified that he had completed the scores on all the elements, apart from other loss which had been done by Mr Sell. The assessment had been made on the history provided by Mr Sell but it was consistent with Dr Lark's knowledge of the accepted condition and his findings on examination (see p.59 of T14). I prefer Dr Lark's score to those of Professor Marshall. Dr Lark undertook the most rigorous and extensive examination of Mr Sell. He confirmed these scores under cross-examination. Furthermore, they are consistent with the other evidence including that of Mr Sell himself. I have already rejected Mr Clark's attack on the reliability of Mr Sell's evidence above.
70. I therefore find that the scores for non-economic loss are as follows
· pain 4
· suffering 3
· mobility 2
· social relationships 1
· recreation and leisure 3
· other loss 2
· loss of expectation of life 0.
Mr Sell is entitled to compensation under section 27 for non-economic loss in accordance with these scores.
Conclusions
71. In summary I find
· Mr Sell suffers from a disease condition of bilateral anterior compartment syndrome, right posterior and borderline left posterior compartment syndrome
· liability for this condition as contributed to by his military service has been accepted
· the date of injury has been determined at 27 May 1997
· as a consequence of the injury Mr Sell has an impairment to his lower limbs which is permanent
· Mr Sell can rise to a standing position and walk but he has difficulty with grades, steps and distances
· under the relevant Table 9.5 in Part A of the approved Guide he has a 20 per cent whole person impairment
· the non-economic loss scores for Mr Sell under Part B of the guide are as I have set out at paragraph 70
· he is entitled to compensation under sections 24 and 27 of the Act in accordance with these findings.
Costs
72. Mr Clark for Comcare asked that I reserve costs if I were to make a decision amounting to 10 per cent whole person impairment. However I have found the level of impairment to be 20 per cent. At the delivery of my oral decision on 19 June 2003 Comcare’s solicitor, Ms Tolland, informed me that it was appropriate that I make an order to costs without further submissions. I have therefore made an order that Comcare pay Mr Sell’s costs as agreed or taxed.
Decision
73. The Tribunal sets aside the reviewable decision of 31 October 2001 and remits the matter to Comcare for re-determination directing that such re-determination give effect to the findings set out in these reasons for decision. The Tribunal orders Comcare to pay Mr Sell's costs as agreed or taxed.
I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Mr G A Mowbray, Member
Signed:
..........[Trevor Mobbs].................................
Associate
Date of Hearing 16 June 2003
Date of Decision 19 June 2003
Date of Written Reasons 28 July 2003
Counsel for the Applicant Mr Wayne Arthur
Solicitor for the Applicant Ms Narelle Streader, D'Arcys Solicitors
Counsel for the Respondent Mr Charles Clark
Solicitor for the Respondent Ms Loretta Tolland, Dibbs Barker Gosling
1
10
0