Sly and Comcare

[2003] AATA 1312

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1312

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2001/977

GENERAL ADMINISTRATIVE DIVISION		)
Re		BRENDAN LYALL SLY

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr B J McCabe, Senior Member

Date22 December 2003

PlaceBrisbane

Decision The Tribunal affirms the decision under review. 

........(Sgd) B J McCabe.........

Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – benefits and entitlements – permanent incapacity – left wrist injury for which liability has been accepted – Tables 9.1 and 9.4 – applicant does not have difficulty with digital dexterity – impairment rating below 10% - decision affirmed

Safety, Rehabilitation and Compensation Act 1988, s 24

Comcare v Moon [2003] FCA 569

REASONS FOR DECISION

22 December 2003 Mr B J McCabe, Senior Member

Introduction

1. Mr Brendan Sly played a lot of sport while he was in the army. He injured his left wrist playing rugby. Comcare accepted liability for the injury but does not accept the applicant suffers from a 10% whole person impairment having regard to the Guide to the Assessment of the Degree of Permanent Impairment (the Guide). Section 24 of the Safety, Rehabilitation and Compensation Act 1988 says an injured person must suffer a permanent impairment of at least 10% under the Guide in order to qualify for lump sum permanent impairment compensation.

2.      Mr Sly has appealed Comcare’s determination. He says his permanent impairment should be assessed as at least 10% under the relevant tables of the Guide.

3.      After reviewing all the evidence including a secretly taped video of Mr Sly taken the day before the hearing, I am unable to accept the applicant suffers from a 10% whole person impairment. I do not doubt he suffers from some discomfort and may be impaired to some degree. But the Act sets a threshold that must be reached before a person is deemed to have a permanent impairment which is compensable, and I am not satisfied that Mr Sly reaches that threshold.

The Material Before the Tribunal

4. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. It was also provided with the following material:

§Statement of Brendan Sly dated 8 March 2002 (Exhibit 2)

§Statement of Brendan Sly dated 12 June 2003 (Exhibit 3)

§Medical Attendance and Treatment Report, 3 September 1992 (Exhibit 4)

§Medical Attendance and Treatment Report, 10 March 1992 (Exhibit 5)

§Specialist Referral and Report dated 29 June 1992 (Exhibit 6)

§Medical Attendance and Treatment Report dated 29 June 1992 (Exhibit 7)

§Video Tape (Exhibit 8)

§Video Tape (Exhibit 9)

§Report of Dr James Rowe dated 18 August 2003 (Exhibit 10)

§Report of Dr John Pentis dated 21 June 2002 (Exhibit 11)

§Report of Dr Greg Rolls dated 20 March 2002 (Exhibit 12)

§Report of Dr Grant Ramage dated 23 April 2003 (Exhibit 13)

§Report of Dr Grant Ramage dated 26 June 2003 (Exhibit 14)

5.      Mr Sly gave evidence at the hearing, as did the following individuals:

§Dr James Rowe

§Dr Grant Ramage

§Dr Greg Rolls

6.      As indicated above, the respondent tendered two video-tapes in evidence. The videos had been shot in secret by a private investigator. They featured the applicant as he was departing Melbourne on his way to the hearing, and at Brisbane airport.

The Facts

7.      Brendan Sly is 30 years old. He enlisted in the army on 15 January 1991 and was discharged on 15 September 1999.

8.      Mr Sly was a talented athlete. He played rugby league, rugby union, Australian rules football and water polo at state level. He also played tennis and was a keen recreational fisherman. He played rugby union for the defence forces and for the army. It appears he spent a great deal of time during the early days of his army service playing football.

9.      Like many professional athletes, the applicant sustained a number of injuries. In particular, he injured his left wrist in the course of a game of football on 8 March 1992. He says he visited the Regimental Aid Post on that occasion. The person to whom he spoke concluded the wrist was not broken and applied ice. Mr Sly said the pain did not improve overnight. He took no further action: he put up with the pain for the next several months. He said he was prepared to tolerate the pain because he was on the verge of selection for a representative side. He said he visited the Regimental Aid Post on several occasions, but there was no record of him visiting the Post until June of that year.

10.     Mr Sly had an x-ray in June. The x-ray showed the wrist had been fractured – presumably during the game on 8 March. The applicant underwent a bone graft procedure and a pin was inserted. He spent 14 weeks in a cast. He said he could not write during this period (the applicant is left-handed) but he still attended classes.

11.     The applicant’s wrist had shrunken when the cast was removed. He went back to playing football, but he had to make adjustments. He would strap his thumb and wrist in place. He could no longer do push-ups on his hands: he had to do them on his knuckles, keeping his wrist straight. Over time, he said he began to notice he experienced pain when using screwdrivers (he was a craftsman in the army working on radios) or grasping a bag. He said he sometimes experienced shooting pains when doing up a shirt button or grasping a door handle. There was no suggestion that he was unable to do his job in the army.

12.     There is no record of the applicant seeking medical assistance in relation to his wrist after his operation in 1992 until he had another accident in January 1999. Apparently he injured his wrist again when he fell down some stairs. He did however seek assistance in relation to other ailments and injuries. He also submitted to routine health checks. The applicant said he continued to suffer pain in the wrist and complained to the doctors but did not make a fuss because he was under the impression nothing could be done.

13.     The applicant was discharged from the army on 15 September 1999. He said he initially intended to make a career in the army but he became disillusioned. He was questioned during cross-examination about his superannuation arrangements. There was a suggestion he had made a bad decision in relation to his arrangements and was seeking compensation to offset that mistake. Miss Ford did not press the point, and I do not draw any inferences from that evidence.

14.     After his discharge, he started working in the film industry. He is currently a clap loader (a camera assistant) and hopes to become a full time focus puller in due course. He explained that being a focus puller requires reasonably intricate movements of the hands. The mechanism for adjusting the focus is usually located on the left side of the camera, which means he must use his left hand. The focus wheel can be difficult to turn. The device is very sensitive: if it is not turned with care, the camera will go out of focus. He described other tasks that required a high degree of dexterity, including manipulating the film stock.

15.     Shooting days in the film and television industry are typically long. Mr Sly said if he is on a shoot, he might be on the set for several days or longer with each day lasting 10-14 hours. In addition to acting as a focus puller, he has to carry heavy equipment around the set. He says his wrist becomes very painful after doing all this for a while. He has to strap it and take anti-inflammatory medication and pain-killers.

16.     Mr Sly said he experiences pain when carrying out many day-to-day tasks, including doing up buttons and tying his shoelaces. He says he can carry moderate weights without too much difficulty. He no longer plays sport or goes fly-fishing. He says he has not done a push-up since he left the army. In his statement (Exhibit 2), the applicant spoke of “a great deal of discomfort” when lifting, carrying or gripping items. He spoke of pain when he undertook day-to-day tasks like writing, gripping and using a screwdriver. He said he had to stop several times for rest while turning a screw. He explained “…discomfort, frustration and pain is caused from my left wrist through any dexterous or repetitive action”.

17.     The statement was prepared on 8 March 2002.. The applicant appeared to retreat from that position in his oral evidence; he suggested he was capable of carrying some loads, for example, and agreed he still used his left hand – often out of habit, he explained, as it was his dominant hand. He said the difficulty was really in relation to the performance of the more intricate tasks requiring a high degree of manual dexterity.

18.     It is just as well he made those concessions. The Tribunal was shown two videos of Mr Sly taken the day before the hearing. His condition appears to have improved substantially in at least some respects. He was seen performing a number of tasks with his left hand, including:

§carrying a large bag and a brace of shirts;

§adjusting a zipper on the bag;

§fishing change out of his jeans pocket; and

§lighting a cigarette.

19.     It follows the videos did not prove the applicant was lying in his evidence at the hearing. But the disparity between what I saw on the video and the contents of his statement (at Exhibit 2) suggested his evidence should be treated with caution. That impression was confirmed by my observations of the applicant in the witness box. For the most part, he appeared to be a credible witness although I noticed him pick up a glass with his left hand and – when he noticed me watching him – put the glass down and rubbed the wrist with his other hand as if he were in pain.

20.     The medical evidence is obviously important in helping the Tribunal to decide whether the applicant suffers at least a 10% whole person impairment under the Guide. Before considering the evidence in detail, it would be helpful to describe the requirements imposed by the relevant tables in the Guide. Table 9.1 says a 10% impairment requires the loss of at least half the normal range of movement of the wrist. Table 9.4 says the applicant must at a minimum have difficulty with digital dexterity even if he can use the limb for self-care and grasp and hold objects.

21.     Several doctors assessed the applicant. Dr Rowe, who was called by the applicant, found a reduction in grip strength compared to his right hand and a loss of dexterity in the left hand. He conceded there was not necessarily any connection between a wrist fracture and dexterity. He said the applicant could still grip things – it was just more difficult for him. He could also carry loads of 15-20 kilograms without difficulty. He found there was a reduction in the range of movement, although he conceded the reduction was only on one plane. Dr Rowe emphasised he concentrated on active movement: he said the ability to move through a greater range with assistance was irrelevant. He said the applicant suffered from a 20% whole person impairment under Table 9.4 of the Guide and a 10% impairment under Table 9.1.

22.     The applicant tendered a report from Dr Pentis.  Additional reports from the same doctor were included in the T documents. They were not particularly helpful. He suggested the applicant suffered a 5-10% impairment under Table 9.1. He assessed an impairment of 10% under Table 9.4 but conceded it was subjective.

23.     Dr Ramage was called by the respondent. Dr Ramage concluded in his written report the applicant had limited changes to his movement – he still had more than half the normal range – and there was “some minor difficulty with digital dexterity”. In the course of his oral evidence, he amplified the remarks with respect to digital dexterity. He suggested there should be no difficulty with fine finger movements that did not involve awkward positions of the hands. He also said he assisted the applicant when testing his range of movement. This approach can be contrasted with that of Dr Rowe, who said the applicant had a more limited range of active movement. He also said the grip strength in each hand was roughly equal.

24.     Dr Rolls was called by the respondent. He said there was minimal loss of function of the wrist, which equated to a 5% whole person impairment under Table 9.1. He said there was no impairment under Table 9.4. He apparently relied on a test the applicant repeated in the witness box. The test required the applicant to pass a paperclip between his fingers. He did it without apparent difficulty.

Findings

25.     The evidence is difficult to reconcile because the medical practitioners must to some extent rely on the applicant’s account of his pain and difficulties. I have already suggested his evidence must be treated with caution.

26.     After considering all the evidence – in particular the paper-clip test – I am satisfied the applicant does not have difficulty with digital dexterity within the meaning of Table 9.4. His grip strength may also be diminished relative to his left hand, but the videos made it clear he does not have difficulties grasping and holding objects. I am also satisfied the applicant enjoys at least half his normal range of movement in the wrist when assisted, and  - in all likelihood, having observed the videos – without assistance. That view is consistent with the preponderance of the medical evidence. It follows the applicant is unable to satisfy the requirements of Table 9.1 of the Guide.

27.     I do not mean to suggest the applicant does not suffer pain in his wrist, and I conceded some of his daily activities may cause him discomfort.  But that is not the test.  It is obvious that pain can be of such an order that it makes it more difficult to do something. One might shrink from doing something because of the pain. But merely experiencing pain is not enough unless it actually impairs performance: see Comcare v Moon [2003] FCA 569 at paragraph 46. There is no reliable evidence of that occurring here.

Conclusion

28.     The decision under review is affirmed.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B J McCabe, Senior Member

Signed:         Sarah Oliver 

Associate

Date of Hearing  9 October 2003
Date of Decision  22 December 2003
Counsel for the Applicant         Mr R Hume
Solicitor for the Applicant          D'Arcys
Counsel for the Respondent     Miss E Ford
Solicitor for the Respondent     Dibbs Barker Gosling