Stewart and Australian Postal Corporation
[2008] AATA 55
•18 January 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 55
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W 200600232
GENERAL ADMINISTRATIVE DIVISION ) Re PAUL STEWART Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Deputy President S D Hotop
Dr P A Staer, MemberDate18 January 2008
PlacePerth
Decision The Tribunal affirms the decision under review. ..........[Sgd S D Hotop]...........
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employees – permanent impairment – applicant sustained leg injury in course of employment in 2003 – applicant claimed compensation in respect of leg injury – respondent accepted liability to pay compensation to applicant in respect of leg injury – applicant claimed compensation for permanent impairment resulting from leg injury – applicant’s leg injury has resulted in permanent impairment – degree of permanent impairment – Tables 4.1, 9.2 and 9.5 in approved Guide – degree of applicant’s permanent impairment under Table 9.2 is 5% – applicant’s permanent impairment not within Table 4.1 or Table 9.5 – degree of applicant’s permanent impairment less than 10% – compensation for permanent impairment not payable to applicant – decision under review affirmed
Safety Rehabilitation and Compensation Act 1988 (Cth), s 24
Guide to the Assessment of the Degree of Permanent Impairment (1st ed), Table 4.1, Table 9.2 and Table 9.5
Comcare v Fiedler (2001) 115 FCR 328
Comcare v Moon (2003) 75 ALD 160
Whittaker v Comcare (1998) 86 FCR 532
REASONS FOR DECISION
18 January 2008 Deputy President S D Hotop
Dr P A Staer, Member1. Paul Stewart (“the applicant”) suffered a “crush injury” to his right lower leg while riding a motorcycle in the course of his employment by the Australian Postal Corporation (“the respondent”) as a postal delivery officer on 22 May 2003.
2. The applicant claimed compensation in respect of that injury and, on 27 May 2003, the respondent accepted liability, under s 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”), to pay compensation to the applicant in respect of an injury described as: “Abrasion & haematoma overlying (R) medial/posterior & (R) little toe distal phalanx”. The description of the injury was, on 15 August 2003, amended by the respondent to: “Abrasion and haematoma overlying (R) medial/posterior midcalf & (R) little toe phalanx”.
3. On 1 February 2006 the applicant lodged with the respondent a claim for compensation for permanent impairment resulting from the abovementioned right lower leg injury. In the claim form the applicant described the impairments he was suffering as a result of that injury as follows:
· “reduced range of movement in right leg, foot and ankle”;
· “large scars on front and back of leg”;
and he added:
· “ongoing future need for orthotics and vitamin E cream”.
4. On 22 May 2006 the respondent made a determination that the applicant was not entitled to permanent impairment compensation under s 24 of the SRC Act. That determination was affirmed in a “reviewable decision” of the respondent dated 26 July 2006.
5. The applicant has applied to the Tribunal for review of the abovementioned “reviewable decision”.
The Issue and the Tribunal’s Determination
6. The issue for the Tribunal’s determination is whether the respondent is liable, pursuant to s 24 of the SRC Act, to pay compensation to the applicant in respect of his compensable right lower leg injury.
7. For the reasons which follow, the Tribunal has determined that the respondent is not so liable.
The Relevant Legislation
8. Section 24 of the SRC Act provides:
“ (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.
…”
9. The relevant provisions of the “approved Guide” referred to in s 24(5) of the SRC Act – namely, the Guide to the Assessment of the Degree of Permanent Impairment – include Tables 9.2, 9.5 and 4.1. The Introduction to Tables 9.1 – 9.6 (Musculo-skeletal System) states:
“Introduction – These tables are intended to be used to assess impairment arising from specific joint lesions or amputations. Where the joints function normally but the use of a limb is restricted for other reasons, eg soft tissue injury, nerve injury or bony injury not involving joints, Tables 9.4 or 9.5 should be used. These Tables can be used to assess the impairment of overall limb function from any cause. NOTE: either the musculo-skeletal table or Table 9.4 or 9.5 should be used – not both.
…” (original emphasis)
Table 9.2 is as follows:
“Lower Extremity
(Percentage Whole Person Impairment)
Assessment is in accordance with the range of joint movement. X-rays should not be taken solely for assessment purposes.
______________________________________________________________________
% DESCRIPTION OF LEVEL OF IMPAIRMENT
0 X-ray changes but no loss of function of hip, knee or ankle
OR
Ankylosis or lesser changes in any toes except the first hallux
5 Loss of less than half normal range of movement of ankle
10 ANY ONE of the following:
. loss of less than half normal range of movement of hip or knee
. loss of half normal range of movement of ankle
. ankylosis of first hallux15 Loss of more than half normal range of movement of ankle
20 ANY ONE of the following:
. Loss of half normal range of movement of hip or knee
. ankylosis of ankle30 Loss of more than half normal range of movement of hip or knee
40 Ankylosis of hip or knee
…”
Table 9.5 is as follows:
“Limb Function – Lower Limb
(Percentage Whole Person Impairment)
____________________________________________________________________
% DESCRIPTION OF LEVEL OF IMPAIRMENT
10 Can rise to standing position and walk BUT has difficulty with grades and steps
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”.
Table 4.1 is as follows:
“NOTE: In the evaluation of impairment resulting from a skin disorder the actual functional loss is the prime consideration, rather than the extent of cutaneous involvement. Where the condition affects the face Table 4.2 may be more appropriate.
____________________________________________________________________
% DESCRIPTION OF LEVEL OF IMPAIRMENT
0The condition is absent on examination or if present can easily be reversed by appropriate medication or treatment AND causes no interference with activities of daily living when present.
5The condition requires treatment for lengthy periods AND causes no interference with activities of daily living when present.
10The condition is absent on examination or if present can easily be reversed by appropriate medication or treatment AND causes minor interference with activities of daily living when present.
20The condition requires treatment for periods in aggregate up to 3 months per year AND causes interference with activities of daily living when present.
30The condition requires treatment for periods in aggregate up to 4 months per year AND causes minor interference with activities of daily living when present.
40The condition requires treatment for periods in aggregate up to 4 months per year AND causes major interference with activities of daily living when present.
45The condition requires treatment for periods in aggregate up to 6 months per year AND causes minor interference with activities of daily living when present.
50The condition requires treatment for periods in aggregate up to 6 months per year AND causes major interference with activities of daily living when present.
60The condition requires treatment for periods in aggregate up to 9 months per year AND causes major (sic) interference with activities of daily living when present.
70The condition requires treatment for periods in aggregate up to 9 months per year AND causes major interference with activities of daily living when present.
75 The condition is present all the time and requires treatment for between 9 and 12
to months of the year AND causes major interference with activities of daily living.”100
[The Tribunal notes that Table 4.2 is headed: “Facial Disfigurement” and refers to, inter alia, “scars” and “scarring”.] The expression “activities of daily living” is defined in the Glossary in the approved Guide as follows:
“Activities of daily living are activities which an individual needs to perform to function in a non-specific environment ie: to live. The measure of activities of daily living is a measure of primary biological and psychosocial function. They are:
Ability to receive and respond to incoming stimuli
Standing
Moving
Feeding (includes eating but not the preparation of food)
Control of bladder and bowel
Self care (bathing, dressing etc)
Sexual function”.
The Evidence
10. The evidence before the Tribunal comprised:
· the documents (T1-T89, pp 1-340) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
· Exhibits A1-A4 tendered by the applicant;
· Exhibits R1-R11 tendered by the respondent;
· the oral evidence of the applicant and the following additional witnesses:
- Dr D Williams (who was called by the applicant);
- Mr C Whitewood, Dr J Bell and Mr P Hocking (who were called by the respondent).
The applicant’s evidence
11. In his oral evidence-in-chief the applicant confirmed that the contents of his Outline of Evidence, dated 25 May 2007, are true and correct. In that document it is stated (inter alia):
“…
6.When I sustained injury in this matter I sustained a crush injury on my right calf and a fracture of the little toe on my right foot.
…
9. I presently suffer from symptoms which cause me real difficulty in carrying out the normal duties of my employment.
10. I am a Postal Delivery Officer which means that I sort my mail and deliver it using a motor bike.
11.I generally do mail sorting for between 3 – 4 hours (on occasions up to 7 hours). I then do motor bike riding for 3 – 4 hours. At the end of the day my right leg is aching and painful in the area of my calf going down to my ankle.
12.I have difficulty with walking any distance, with walking up grades and with walking on steps. Walking on uneven surfaces also causes difficulty. I feel unstable in the area of my right leg and I am always concerned that I feel like I am going to over balance. The leg is painful whilst doing any walking and also at the end of the day when I have been on my feet for any length of time.
13.I feel awkward when walking and have a tendency to lose balance. I feel I have a loss of strength in my lower leg.
14.I have a very large scar on my right lower leg. I apply cream to that area of scarring two to three times a day. I also have to keep it out of the sun and keep it as far as possible from not being in contact with other items of clothing.
15.The scar is sensitive to touch and it is unsightly.
16.I note that Mr Whitewood in his report of 19 January 2005 describes me as having undergone a ‘miraculous transformation’. I do not really know what he means by that, but it is not the case that I am cured or have been the subject of any miracle recovery.
17.I did a lot of hard work after my injury to restore function to my leg and agree that compared to immediately after the accident my leg is better than it was.
18.It is not the case however that I am cured and I still experience all of the symptoms set out above on an ongoing and regular basis.” (Exhibit A1)
12. The applicant described the ongoing symptoms in his right leg as follows:
“… my leg is always sore just depending on how much work I do or how much pressure I put on it as to how sore it gets and I have restrictions in the amount of movement in my ankle and my lower leg, calf, it doesn’t work the way it has in the past and it just causes me pain.”
Asked to explain his statement that “it doesn’t work the way it has in the past”, he said:
“Well, going up and down stairs or across uneven surfaces or things. I have to be careful how I put my foot down to make sure it’s – otherwise I slip or can
overbalance quite easily.”
13. In cross-examination the applicant confirmed that he is able to walk. His evidence continued:
“You’re able to walk distances without any difficulty?---Well, I can walk to the shops over the road and back, you know I can walk to the shops next door from work, but to go for a 5 k walk along the beach or something like that, no.
Well, have you tried?---Yes.
When?---Plenty of times I go out, but it just makes my leg ache and for work the next day I need to sit down more or have more breaks and it just causes problems and I get told at work that I’m faking or bludging or just trying to get out of work and I just get threatened with having my hours reduced and get put on a smaller run, so I’ve learnt not to try things just so I’m able to get up for work and be able to do my job without having people telling me I’m not doing the right thing.”
14. The applicant was questioned about his examination by Dr Bell in March 2007 (see paragraph 31 below). His evidence was as follows:
“You remember telling him that you have an ache in your right shin and down onto the foot ever since May 2003 with no change from 10 months ago. You told him that. You told him that the aches are as bad as ever, that they’ve never improved over time?---There’s always at a certain level, it just gets worse. It’s never not sore.
You told him you were unable to do anything with your family, you just have to rest up after work?---At busy periods I told him.
Only at busy periods?---Well, if I’m only at work for four hours then it’s not so bad but if I do eight or ten hours then I can’t do anything after that.
…
You told him: I cannot participate in any sporting activities at all? ---I don’t know. If that’s what I said, that’s what I’ve said.
You told him you can’t eat at the table and have to eat in a lounge chair with a footstool?---Every time I sit down I need to raise my foot so it takes the pressure off and relieves the pain. Yes.
Well, can’t you put the footstool under the dinner table?---Then it’s in the way of everybody else who’s at the table. If there’s anyone – what’s the difference if I have a footstool in front of the lounge chair or in front of a – I don’t see the point of where the footstool is.
You normally eat alone. Don’t you?---At the moment, yes. Virtually since the accident.
You say you have to wear high thigh boots and long trousers to protect the leg?---Yes.
You put vitamin E cream on it?---Yes.
Right. You mentioned that you use Tubigrip. What’s Tubigrip?---It’s like a stocking that you pull over to keep the sun off.
I see. Now, what’s the extent of you saying that you have to rest up after work?---Well, my leg feels like it’s on fire. It just burns and aches all over and I just need to put it up to take the weight off it.
It feels like it’s on fire?---And it just burns.
Have you ever used those expressions with any of the doctors that you’ve seen?---I’m sure I have.
You’re sure you have?---I’m sure I would have.
Did you tell Dr Bell that, Mr Bell?---I’m not sure.
That it feels like it’s on fire?---He doesn’t the questions to get those sort of answers (sic).
I’m sorry?---He doesn’t ask questions to get those sort of answers.
…
So you’re telling this tribunal a very extreme version of your pain state. You’re saying, ‘it feels like it’s on fire, it burns’?---Yes.
Now, have you ever used those words with any of the doctors that you have seen?--- I would say I would have. Yes.
You would say you would have? Can you remember which doctors you’ve used those words with?---No.
I put it to you, Mr Stewart, that is a gross exaggeration of your symptoms?---No comment.
You have grossly exaggerated your symptoms for the tribunal right at this very moment. What do you say to that?---I would say you’re wrong.
…”
15. The applicant was questioned about his examination by Dr Williams in May 2007 (see paragraph 19 below). He confirmed that he had told Dr Williams that prolonged standing caused him increased discomfort and that he could not run. He denied, however, that he had told Dr Williams that he could not walk on uneven ground or soft sand, and added that he had said that he has difficulty doing so and that it causes him pain. His evidence continued:
“… [Dr Williams] says: ‘He cannot walk on uneven ground or soft sand’?---I have trouble.
I see, so Mr Williams has got that wrong has he when he says, ‘He cannot’?---If he says, ‘He cannot’ then it’s wrong.
That’s what he says, yes. So what you told Mr Williams was, ‘I have trouble’?---Yes.
And the same with running?---I have difficulty – yes.
All right: ‘And he has difficulty coping with stairs and ladders’?---Yes.
What stairs have you attempted to climb?---Ones at the shopping centre across the road and I went to a football game at Subiaco Oval.
When was that?---About – once about two years and again about six months ago, probably four months.
What happened?---I just feel uneasy, I just can’t move at the same pace as the rest of the crowd, because I’ve got to stop and watch where I’m putting my foot and make sure I place it in the right spot, otherwise I can overbalance. I need to put my heel on the step going down or just my toes going up, I can’t put my feet flat on the step, because it doesn’t sit properly.
So you’ve tried on these two occasions, that was the Subiaco Oval about two years ago and the shopping centre across the road. When did you try at the shopping centre across the road?---When? When I got to the shops.
Well, how many times have you tried to climb the stairs?---Well, I can climb them, but I have to hang on to the rail and I have to put my foot in – that’s it in an unnatural spot, I’ve just got to make sure I’m out of the way of people because you know they’re moving faster than what I am.
So it’s not a matter of you not being able to do these things at all, but you do them slower than others?---Yes, I have difficulty doing them and – well, the steps causes, you know, nervousness about getting bowled over or getting in someone’s way, but, yes, uneven surfaces and the soft sand and that just – it puts a strain and just – on my leg and just causes pain that I would rather avoid because it interferes with my work…
…
Do you have to go up grades in the normal activities of your daily living?---Not generally, no. There are places where they are where I have to, yes, but if at all possible, I avoid them.
Well, give me some examples?---Again, across the road where the steps are, there’s a ramp next to it.
Yes?---Where you – so wheelchairs or trolleys can go up instead of the steps or, you know, in part of the mall where there’s a grade that rises up towards the centre.
Yes?---And I just avoid those places, go around a different way.
You have mentioned stairs and ladders to Mr Williams but you haven’t mentioned grades. It’s not often that you go up a grade or that you don’t have any alternative but to go up a grade, is it?---No.
You also say – you told Mr Williams with stairs you can’t lead with your right leg. Does that mean therefore that you can lead with your left leg?---Yes.
And that doesn’t cause any problems for you, does it?---Well, it causes problems where I have to stop and prepare myself to do it. I can’t just walk normally, going up and down, around things, like I have for the rest of my life. I have got to stop and make sure there’s no one behind me and place my feet carefully.
So if you were presented with a flight of stairs, Mr Stewart, describe to me how you climb them?---Over to the side, close to the rail.
Yes?---And just watching my feet and deliberately - like, if I was going up, I’d have to place the front of my foot from just behind the toes only on the step, and then on the way down, I have to use just my heel on my right leg.
So you go to the left hand side, you hang onto - - -?---I just go to whatever side’s available.
All right. You obviously look for a rail and you place your left foot on the step, first step?---Well, left or – doesn’t – if I’m stopped at the bottom, it just depends on what side I’m on, but I just have to stop and deliberately, like, see, look what I’m doing, and make sure I place my foot - because it just doesn’t bend and it doesn’t feel - doesn’t feel safe or natural, trying to - - -
It doesn’t bend? What do you mean it doesn’t bend?---Well, it just doesn’t have the range or the flexibility that my other foot does for me to feel comfortable walking upstairs the way I have done for the rest of my life.
So you lead with either leg. That’s not an issue for you, you say; could be left, could be right?---Yes.
You hang onto the rail and you carefully - - -?---I don’t always hang onto the rail, but I move right over next to it because - - -
All right?---As I said, I don’t want to draw attention to myself. I don’t want to limp around the place or be in people’s way so I go and try and get as close as I can to make sure if I need to grab hold of it, I can, but I won’t always be walking up like that, no.
…
So is it – is your concern that you are not – you don’t look the same as other people as you are climbing the stairs?---No. I’m worried about falling and injuring myself or injuring someone else because it doesn’t work how it used to work. I don’t feel the same. I don’t feel confident in just tackling stairs and things like that, the way I used to, because now my leg isn’t the same as it was.
…”
16. Later in his cross-examination the applicant gave the following evidence:
“Now, in respect of grades or slopes, if we can call them that, have you had much experience in walking on slopes since the accident?---I have attempted it. There are some places where you just can’t avoid it, yes.
Those places being, what?---The car-park at the back of the lawyer’s office – that’s the main one – I can’t really – other places that can be avoided.
I happened to park down there myself, Mr Stewart, so I know the slope you’re speaking of. This is the City of Perth Council House car-park, behind Council House?---Correct.
…
Yes. And what difficulties, if any, have you encountered while walking up that particular slope?---It just tightens the muscles. It becomes very uncomfortable and puts me off balance.
Muscles, in what part of your leg?---My calf.
Your calf muscle?---You’ve got to bend your ankle to adjust to the slope - - -
Yes?---Because of the calf muscle is not the same, it doesn’t do what it used to, or what it should.
So it creates a sense of tightness in your calf?---Yes.
And is that the only grade that you have had to walk up and down?---That I call regularly, yes, that’s the main one.
What about going down?---It’s just as bad.
It’s just as bad?---I walk – well, it doesn’t stretch the same but my foot doesn’t – won’t go down past there like it used to, so I’m virtually walking on my heel, which makes it awkward.
So are you saying that your foot won’t point downwards?---Not to the extent that it used to, no.
…”
The evidence of the medical witnesses
Dr Desmond Williams
17. Dr Williams, Orthopaedic Surgeon, said that he first saw the applicant on 4 April 2004, and that he reviewed him in a follow-up consultation on 24 May 2007. He confirmed that, at the request of the applicant’s solicitors, he had prepared 3 reports regarding the applicant.
18. In his first report, dated 13 April 2004, Dr Williams summarised the applicant’s history, and continued:
“His current problems include lack of full right knee range of motion with difficulty coping with stairs, slopes and uneven ground.
His difficulties relate to functional activities and include ache in the right knee, right ankle and the tibial graft area.
Further, he notes his ankle range is restricted and he cannot squat freely.
…
Clinically his right knee showed tightness at full extension with restriction at end range and tightness.
His right ankle showed restriction of full dorsiflexion by 10°, compared to the left side.
There is some numbness to light touch from the wound down to the anterior tibial area on the medial sides.
…”
He then summarised various medical reports regarding the applicant and continued:
“With regard to disabilities, he has limitation in full knee extension and limitation in full ankle dorsiflexion which limits him with regard to stairs and ladders, walking on irregular ground and kneeling postures.
Further, he has the disturbance related to the loss of the knee medial gastrocnemius muscle contour and the anterior tibial skin graft, which will be prone to contact injury.
Therefore, there are the areas of disability related to the knee, ankle, skin graft and muscle area of the gastrocnemius.
The attached table notes that, with regard to skin disorder, the actual functional loss is a prime consideration rather than the extent of cutaneous involvement.
Overall, I would see his skin condition having a current percentage of 20%, reflecting minor interference with activities of daily living, and I note this interference is with coping with stairs and ladders, walking up slopes, irregular ground and squatting activities.
…
With regard to his limb function, the lower limb expresses a percentage of whole person impairment and the percentage is 20%, in that he can rise to a standing position and walk but has difficulty with steps and distances.”
In answer to questions asked of him by the applicant’s solicitors, Dr Williams stated:
“…
2.His current symptoms and restrictions are discussed in the text of the report and include decreased right knee range in extension with end range tightness in extension and reduction in dorsiflexion range.
He has difficulty coping with stairs, slopes, graded surfaces and uneven ground, with pain on increased activity levels, and further, he is limited with regard to squatting fully and freely.
3.Clinical findings are discussed in the text of the report and note the tightness at the extreme of extension in the right knee and restriction in dorsiflexion of the right ankle by some 10°.
I have further noted the numbness of the medial aspect of the tibia, distal to the wound of the medial aspect of the ankle, with numbness to light touch and with resolution of his foot pain and tenderness.
…
6.The prognosis is that he will have some annoying levels of residual disability which, in the main, relate to the consequences of the gastrocnemius muscle transfer, which was required to provide skin cover for the tibia, that has affected knee and ankle function.
Further, there is the numbness in the lower medial aspect of the tibia, which will make him prone to direct injury in the skin areas, and there will be the deficient sensation over the skin graft area with its susceptibility to direct impact injury and damage.
He will remain with some limitations in tasks such as stairs and ladders, repetitive bending and squatting, and long distance walking and running activities.
…
8.I have outlined in the text of the report the permanent impairment expressed as a percentage according to Table 4 and 9.5 of the Comcare ‘Guide to the Assessment of the Degree of Permanent Impairment.’
a) Skin Condition – 20%
b) Limb Function – 20%
…” (T52)
19. In his report of 25 July 2007, which was prepared following his review of the applicant on 24 May 2007, Dr Williams stated:
“…
At review in May 2007 he states he is coping with work in the post office which includes delivery on a motorcycle and sorting. …
He has ongoing right leg soreness in the calf area about the wound and it was the skin graft area of some 8 x 6cm in the mid tibial area. The skin graft area relates to an underlying rotation flap of the gastrocnemius muscle with split skin graft and he needs to take care with the area and moisturise the area generally with vitamin E cream.
He notes he uses motorcycle boots that reach below knee to avoid any direct pressure contact with the graft area and avoiding it being directly knocked.
He uses orthotics in his shoes as the imbalance in his gait has resulted in ache and swelling about the foot and podiatry testing noted his disturbance of gait and balance of the foot.
Clinical review of his right knee showed full motion range in flexion/extension equal to the left knee and this has improved significantly since my earlier review.
At clinical review the right ankle range showed extension dorsiflexion arc does not reach neutral and it lacks the neutral position by at least 5° and it flexes to 30° compared to the flexion arc in the left ankle of some 40°.
In terms of functional limitations he notes prolonged standing creates increased discomfort.
He has interference with functional capacities and cannot run. He cannot walk on uneven ground or soft sand. He has difficulty coping with stairs and ladders. With stairs he cannot lead with his right leg.
He copes generally with his full work duties but with difficulties and the protection I have outlined in terms of contact with the graft area.
He uses pain-killers of Panadeine Forte and Panadol and it can vary from 2 per day up to 10 per day when activity creates significant symptoms.
He sees minor to major interference with his daily activities in a variable fashion.
I would note that if one uses the Comcare scale of the musculoskeletal system Table 9.2 the assessment is made in accordance with range of joint motion and I would assess his impairment based on the ankle range loss of any dorsiflexion arc at some 5° off the neutral position to 30° of flexion and lacking some 10° of the plantar flexion arc compared to the left leg.
His loss of ankle motion would be graded as loss of more than half normal range of movement lacking the complete arc of dorsiflexion and having a plantar flexion lag of 5° with movement range through to 30°. This would equate to 15% under Table 9.2.
I note in my report of April 2004 using the Table 9.5, I assessed permanent impairment of limb function at 20%. This equates to walking with difficulty with grades and steps and distances.
… (Exhibit A2)
20. In his report of 29 October 2007 Dr Williams commented on the skin condition of the applicant’s right lower leg as follows:
“…
In his lower leg he has an oval skin graft area of some 8 x 5cm with split skin placed over the muscle with the graft taken from the left thigh. There is the bulging of the gastrocnemius muscle on the posterior aspect of the graft area and there is a long incision over the posteromedial aspect of the calf and gastrocnemius so it extends over the length of the lower leg.
The graft area has no sensation and there is numbness over the medial lower aspect of the leg above the ankle and the skin graft area is viable and sensitive to contact.
In terms of assessment under Skin Disorders, Table 4.1 of the Comcare Guide, it would be graded as a 20% impairment representing a condition that requires protection and treatment for simple contact to abrasion and bleeding and it interferes with activities of daily living with restriction in ankle and knee motion ranges and it is significant in terms of its effects, on average for up to three months over a 12 month period.
…” (Exhibit A3)
21. In his oral evidence Dr Williams confirmed that he had viewed the DVDs referred to in paragraph 37 below and that he adhered to the findings and opinions expressed in his abovementioned reports. As regards the scars on the front and back of the applicant’s right lower leg, however, Dr Williams opined that the applicant did not have a “skin disorder” and that Table 4.1 in the approved Guide was, therefore, “not a good fit” in relation to the skin condition of the applicant’s right lower leg.
Mr Colin Whitewood
22. Mr Whitewood, Orthopaedic Surgeon, saw the applicant on 7 occasions between August 2003 and May 2005, and, following each consultation, provided a report to the applicant’s general practitioner (T35, T37, T40, T45, T60, T63 and T65).
23. On 1 October 2003 Mr Whitewood reported:
“I reviewed Paul today with regard to his right foot pain. His forefoot pain, swelling and tenderness has now virtually completely settled. He still has some very mild residual tenderness over the shaft of his 2nd and 3rd metatarsal but this is enormously improved from what it was when I saw him last. He is now able to walk comfortably and has no limp. He still has some discomfort around his ankle and finds this most marked when he lands suddenly and forcibly on the foot such as coming down a step.
On examination today when weight bearing he does have some restriction in his right ankle dorsi flexing and on forward bending test he is approximately 3cms behind on his right knee compared to his left. Examination of the ankle shows no ligamentous laxity in the ankle and I note that a previous CT scan showed no significant bony odd joint injury.
…” (T40)
24. On 9 November 2004 he reported:
“Thank you for asking me to see Paul regarding the ongoing issues with his right calf. I am happy to see that his right forefoot pain has now completely settled. He has been left with some diminution in his range of dorsiflexion of the ankle with his knee straight. With his knee bent he has a better range of excursion showing that the issue appears to be some possible scarring in his gastrocnemius muscle that is still remaining in the posterior superficial compartment of his calf. Paul does demonstrate reduction in the range of subtalar motion and I suspect has, as a result of the injury to his right mid shin region, suffered some damage to his tibialis posterior muscle. Paul has got some residual stiffness in the subtalar joint on the right hand side when compared to his left hand side. He may also have some diminution in the strength and endurance of his tibialis posterior muscle controlling his subtalar joint on this side.
…” (T60)
25. He next reported on 19 January 2005 as follows:
“I reviewed Paul today who has undergone a miraculous transformation in the last two months. He has got a markedly improved range of motion and stability around his ankle, and his tibialis posterior strength and endurance has increased enormously. He is now able to do a single leg heel raise on the right hand side but has not quite got the subtalar stability that he has on the contralateral uninjured side.
Paul is continuing to use the orthotics in his shoes although he is having trouble tolerating the prescribed extent of shoe wear rather than tolerating the discomfort from the orthotics. He finds the orthotics quite comfortable but prefers to be out of shoes and in thongs during his time away from work. He is tolerating full time work with full duties and his only problem at this stage is ongoing loss of sensation over the dorsal aspect of his foot and clinical evidence of a small neuroma at the postero-medial aspect of the graft site.
…” (T63)
26. On 19 May 2005 he made a final report as follows:
“I reviewed Paul today who has done very well with his rehab and has now ceased physiotherapy. He is still continuing to do his home exercise programmes and has now got to the point where his balance on his right leg is virtually the same as that on his left. His subtalar stability is markedly improved and he is now able to do a single heel leg raise. He is managing full time work with full duties but does find it easier if he is wearing orthotics in his shoes or alternatively wearing good quality running shoes.
At this stage I think Paul is close to maximum medical improvement and as such I have just suggested I review him in the future should any other issues become apparent…” (T65)
27. In his oral evidence Mr Whitewood explained the “miraculous transformation” in respect of the applicant’s right lower leg, referred to in his abovementioned report of 19 January 2005, as follows:
“He had improved far faster than I would have expected over that two month period and as such, for a man who was in significant pain, had a big swollen forefoot, had trouble with his hind foot, he came in looking very good and his symptoms had settled faster than I expected.”
He acknowledged, however, that the applicant had been left with an impairment but he added that, when he last saw the applicant on 19 May 2005, he was able to do full-time duties, and that he felt that the applicant’s symptoms were “minimal”.
28. In response to questions from the Tribunal Mr Whitewood commented on the scars resulting from the surgery on the applicant’s right lower leg as follows:
“I think the final result was very good. His donor site scar healed up well, albeit with the inevitable cosmetic deformity of losing one part of a muscle and calf, and his graft site also healed up very well with the skin graft.
So the quality of that skin graft is good?---It was good. I can only comment from the 19th of May 2005, but at that stage it looked very good.
Right, and you wouldn’t really expect any long term problems from those – well, as it was when you last saw him you wouldn’t have expected any long term problems in relation to the scarring and the effect of the operation? Leaving out the ankle here
- - - ?---Leaving out the ankle, no, no significant local problems.”
Dr John Bell
29. Dr Bell, Consultant Orthopaedic Surgeon, confirmed that he had seen the applicant on 2 occasions, namely, 11 May 2006 and 1 March 2007, and had prepared a report following each of those consultations.
30. In his report of 17 May 2006, which was addressed to the respondent, Dr Bell summarised the applicant’s history regarding his work-related injury of 22 May 2003 and its subsequent treatment, and continued:
“Current Status:
Ongoing aches in the right leg continue. It hurts a lot more when he is more active. Mostly the aches are dull and just aches and now and then become sharp. The aches are mainly around the right shin. Stairs and ramps are a problem so he does not go to footy any more. Long walks are a problem. Rough ground, uneven ground and soft sand at the beach cause problems and he walks with great difficulty and it hurts to walk. The pains in the right shin are burning in nature with sharp pains in the front tendon. The aches go from the right shin up to the right knee and the right hip and the low back and the neck and seem to bring on migraines. He has had migraines for many years and they have been worse since the injury. When he gets home from work he puts his leg up and he gets through his work as best he can. The right leg does not move and does not have the strength it used to have. There has not been much improvement for the last year.
Current Work Status:
He is working full time as a postal delivery officer with ongoing discomfort.
Present Activities:
Before his injury he used to spend more time with activities with his two children, mainly taking the dogs and the children to the beach and he cannot do that much now.
…”
He set out the results of his physical examination of the applicant as follows:
“Mr Stewart presented with the above history and described his continuing right lower limb difficulties. His gait pattern was reasonably normal. There was minimal limp when walking slowly. He was unable to fully squat with some mild stiffness in the right calf and right thigh.
His height was 178cm and he was trim at 69kg. His abdominal girth was 83cm. He thinks that his weight was around the same at the time of his 2003 motorcycle crash. He had no great difficulty in undressing or redressing.
…
Lower Limbs:
He had a full range of movement of his hips and knees and left ankle with no discomfort and no tenderness.
The right leg had an obvious area of skin grafting 4cm x 7cm and the split skin graft appeared to have taken well and there was some tenderness above and below the area, which was darkish and obviously grafted. The posterior scar over the entire calf was 33cm in length and curved and the lower 10cm was hard to see and it had healed well with mild surrounding discomfort. The shape of his right calf muscle was different with some thinning from the muscle transposition. The circumference of his thighs was 45cm on both sides. The circumference of the upper calf was 32cm on the right and 33.5cm on the left showing the loss from the muscle transposition. At the level of the skin graft it measured 28cm in circumference on the right and 26.5cm on the left. Just above the ankles it measured 21cm in circumference on both sides. Circulation was good in both feet. There was some localised surrounding numbness around the split skin graft. There were no positive neurological signs in the lower limbs apart from that. His right little toe was not tender and there was no sign of prior injury or fracture.
…
In summary, Mr Stewart was involved in a motorcycle crash on 22 May 2003 when he was knocked off his postie bike on the footpath. As a result of this injury he sustained an area of skin necrosis over the front of his right shin, which was treated with gastrocnemius transposition and split skin grafting with reasonable result. It has given him aches from the scar tissue in his right calf and some mild right leg weakness.
Assessment of Health Problems:
1.Right leg soft tissue injury. Muscle transposition and split skin grafting over an area of skin necrosis in the right mid shin region. Ongoing aches from postoperative scar tissue.
...”
In response to questions asked of him by the respondent, Dr Bell opined that:
· the impairment resulting from the applicant’s right leg injury “has reached a permanent state”;
· the degree of that impairment is 5% under Table 9.2 in the Guide to the Assessment of the Degree of Permanent Impairment because it involves “loss of less than half the normal range of movement of ankle”.
Dr Bell concluded as follows:
“… he has indicated great severity of symptoms in the right lower limb. Undoubtedly there is a degree of permanent impairment. I do grade the severity of impairment as mild.
…” (T83)
31. In his report of 7 March 2007, which was addressed to the respondent’s solicitors, Dr Bell summarised the applicant’s recent history as follows:
“…
Progress Since Last Assessment:
Mr Stewart told me that his right leg is sore all the time. He wakes up constantly through the night. He has to take a lot of painkillers. There has been no improvement.
Continuing Employment/Work Duties:
He continues to work as a postal delivery officer for Australia Post and he does so with discomfort during his deliveries and afterwards.
Continuing Symptoms/Disabilities:
He continues to ache in the right shin and down onto the foot ever since the May 2003 motorcycle crash. There has not been any change from 10 months ago. The aches are as bad as ever.
He said he is unable to do anything with his family and just has to rest up after work. He cannot participate in any sporting activities at all. He cannot eat at the table and has to eat in a lounge chair with a foot stool.
He has to wear high thigh boots and long trousers to protect the leg. He has to put vitamin cream on it whenever he is in the sun. Tubigrip on the right leg helps.
…”
He set out the results of his physical examination of the applicant as follows:
“Mr Stewart presented with the above history and described his continuing right lower limb difficulties. His gait pattern remains reasonably normal. There was some limp, even when walking slowly. The limp was mild.
He was able to walk on his heels and on his toes and squat with mild discomfort in the right shin area and in the right foot.
His height was 178cm and he is trim at 69kg and his abdominal girth is 84cm.
…
Lower Limbs:
He had a full range of movement of the hips, knees, and both ankles with discomfort in the right ankle with the extremes of the range.
Physical signs remain exactly the same as reported in my previous medical report on the fourth page. The large area of skin graft is obvious, the deformity and muscle wasting in the right leg is obvious, and the large scar 33cm in length posteriorly.
He has good circulation in both feet and equal wear on the feet on both sides indicating reasonable activity.”
Dr Bell reiterated the summary and assessment stated in his report of 17 May 2006, and the opinion expressed by him in that report regarding the degree of the applicant’s permanent impairment.
32. In his oral evidence-in-chief Dr Bell adhered to the findings and opinions expressed in his abovementioned reports.
33. Dr Bell confirmed that he had viewed the DVDs referred to in paragraph 37 below and he noted, as regards the applicant’s gait as shown on one of those DVDs, that his stride was “even, with good rhythm” and that he had “a long stride with both feet” and there was no discernible difference between the left leg and the right leg.
34. Dr Bell was asked to comment on the applicant’s evidence that he has difficulty with grades and steps. He responded:
“It’s very difficult from the objective physical signs and the functions shown on the DVD to support any difficulty with grades and steps.”
35. Dr Bell was questioned about the surgical scarring of the applicant’s right lower leg. His evidence was as follows:
“Do you consider a surgical scar or scars, such as Mr Stewart has on his right leg, to constitute a skin disorder?---Well, possibly if it were a burn scar or a degloving. I couldn’t see a place for it with a scar that is some three by seven centimetres and with the stable split skin graft overlying a muscle bed.
What conditions or pathological conditions would you assume would be covered, or think would be covered, by Table 4.1 [in the approved Guide]?---Well, reading the table, it would appear to me to apply to things like psoriasis or eczema or dermatological conditions.”
He said that the applicant’s right leg scar did not require any treatment, and that, in any event, he did not consider that the application of Vitamin E cream to the scar constituted treatment. He did, however, consider that, as regards the area of the skin graft on the applicant’s right lower leg, his ability to receive and respond to incoming stimuli was affected in that he had “lack of touch” over the skin graft. His evidence-in-chief concluded:
“If you were directed to make an assessment of Mr Stewart’s scarring, that is his cutaneous scarring under [Table] 4.1, what percentage of whole person impairment would you award him?---None of the percentages apply. I can’t see that Table 4.1 applies to his situation.”.
Additional relevant medical evidence
36. The relevant medical material which is also in evidence includes the following:
· Report of Mr Mark Lee, Plastic and Reconstructive Surgeon, dated 15 October 2003, as follows:
“I reviewed Paul in the rooms today. It is six months since debridement of a mid right leg wound with exposed tibia and degloving. This was treated with a pedicled gastrocnemius flap and skin graft.
This is fully healed, stable and the flap has flattened out to give a much better cosmetic result. It is non-tender. He is having some ongoing problems with his right foot following the fracture, however this is being managed by Colin Whitewood, Orthopaedic Surgeon.
I am happy to discharge him from my care at this stage and he will continue to follow up with Colin for as long as necessary.” (T43)
· Report of Dr Roger Lai, Medical Adviser, Australia Post, dated 2 August 2005, as follows:
“…
Current symptoms
Mr Stewart stated that his main symptom was constant deep aching in the area of his right medial plantar arch and heel. At its best, he stated that the ache was 2/10. He stated that the aching is worsened by prolonged weight bearing and operating the motorcycle foot controls. At its worst, the aching would spread to involve the calf and the front of the right ankle. He stated that the right foot ached even at night time. He stated that it felt like he had ‘a piece of lead wrapped around my leg’ most of the time.
He stated that he still had a large area of numbness over the medial aspect of his right leg surrounding the graft site. He stated that the 2nd, 3rd and 4th right toes occasionally cramped and had pins and needles.
Functionally, Mr Stewart reported ongoing difficulties with ramps, stairs and uneven ground. He felt that he negotiated these obstacles a lot slower than normal people. He stated that he has not replaced his pet dog (that passed away) because he felt that he would be unable to walk it sufficiently. He still manages his normal duties at work, his shopping and looking after his children when they visit.
Overall, Mr Stewart felt that his symptoms have improved dramatically with time but he still had residual symptoms requiring medication. From my notes on 20/1/2005 it appears his symptoms have remained largely unchanged from that time.
…
Examination findings
Inspection revealed a scar down the back of the right calf and the muscle flap located on the anteriomedial aspect of the right leg. There was no ankle swelling. He could walk without a limp. He could raise himself on his tiptoes and there was no evidence of abnormal heel eversion. Flat foot balance was normal. Right single heel raise balance was still unsteady compared to the left.
Flexion and extension of the right ankle was restricted by 5 degrees each direction compared to the left. Inversion and eversion was normal. There was no evidence of subtalar instability.
There was an area of reduced sensation over the medial aspect of the right leg and over the anterior ankle. The upper edge starts around the muscle flap and it extends down to the medial ankle.
Assessment
Mr Stewart continues to suffer residual symptoms from the soft tissue injuries he suffered on 22nd May 2003. It is likely that he has reached maximum medical improvement and will continue to experience residual symptoms for the long term.
…
… The main findings were a persistent region of altered sensation affecting the medial aspect of the right leg, mildly reduced range of motion of the right ankle and unsteadiness of right single heel raise compared to the left. The findings are consistent with the effects of soft tissue injury and scarring to the right calf.
…” (T71)
Other relevant evidence
37. Also in evidence were:
· 2 DVDs comprising film of the applicant’s activities in the periods 8 December 2006 and 23-26 June 2007 (Exhibit R5);
· surveillance reports, dated 4 January 2007 and 6 July 2007, prepared by Paul Hocking for the respondent’s solicitors, and surveillance notes by Mr Hocking for the following dates: 21, 23, 30 November 2006; 1-3, 7-10 December 2006; 16-17, 23-29 June 2007 (Exhibit R10).
Mr Hocking gave oral evidence but it is unnecessary to refer to the contents of that evidence in these reasons.
Analysis and Findings
The applicant’s compensable right lower leg injury has resulted in a permanent impairment
38. It is common ground that the applicant’s compensable right lower leg injury has resulted in a “permanent impairment”, within the meaning, and for the purposes, of s 24 of the SRC Act, and, on the basis of the medical evidence before it, the Tribunal so finds.
What is the degree of the applicant’s permanent impairment resulting from his compensable right lower leg injury?
39. The relevant impairment tables in Part A of the approved Guide in the present case are Table 4.1, Table 9.2, and Table 9.5.
Table 4.1
40. Chapter 4 of the approved Guide, which comprises Table 4.1 and Table 4.2, is headed “Skin Disorders”. Whereas Table 4.2 has the subheading “Facial Disfigurement” and contains specific reference to “scars” and “scarring”, Table 4.1 has no subheading although it contains a prefatory note which states:
“In the evaluation of impairment resulting from a skin disorder the actual functional loss is the prime consideration, rather than the extent of cutaneous involvement … ”
Table 4.1, furthermore, makes no specific reference to “scars” or “scarring”.
41. Having regard to the nature of the skin condition of the applicant’s right lower leg, the contents of Table 4.1 in the approved Guide, and the views expressed by Dr Williams and Dr Bell in their oral evidence, the Tribunal has serious reservations about the relevance or applicability of Table 4.1 in the present case. Given that there is some doubt in relation to this issue, however, and having regard to the beneficial nature of the relevant legislation, the Tribunal will, in accordance with the principles expressed by the Full Court of the Federal Court of Australia in Whittaker v Comcare (1998) 86 FCR 532 at 544-555 and Comcare v Fiedler (2001) 115 FCR 328 at 334, consider the application of Table 4.1 in this case.
42. As regards the skin condition of the applicant’s right lower leg, the Tribunal agrees with the opinion of Dr Bell that none of the descriptions of level of impairment set out in Table 4.1 is satisfied. More specifically, the Tribunal is satisfied on the medical evidence before it, and finds, that the relevant skin condition:
· is neither “absent on examination” nor “can easily be reversed by appropriate medication or treatment”;
· does not “require treatment”.
As regards the latter point, the Tribunal notes the applicant’s evidence that he applies Vitamin E cream to the scar area and wears “Tubigrip” and protective boots. Although the Tribunal is prepared to accept that those forms of treatment may be useful or desirable, it does not accept, having regard to Dr Bell’s evidence, that any of them is necessary or “required” within the meaning of Table 4.1.
43. Accordingly, the Tribunal finds that the skin condition of the applicant’s right lower leg does not attract an impairment value or percentage under Table 4.1 in the approved Guide.
Table 9.2
44. The applicant conceded at the hearing that, notwithstanding the evidence of Dr Williams, an impairment value of 5% was appropriate under Table 9.2 on the basis that the applicant had sustained a loss of less than half the normal range of movement of his right ankle. That concession accorded with the respondent’s contention. Accordingly, the Tribunal finds, on the basis of Dr Bell’s evidence, that, under Table 9.2 in the approved Guide, the degree of permanent impairment of the applicant is 5%.
Table 9.5
45. In Whittaker v Comcare (above) the Federal Court of Australia held that, where both Table 9.2 and Table 9.5 in the approved Guide are applicable, and the application of one of those tables would result in a determination of a higher degree of permanent impairment than the application of the other table, the table whose application would result in a determination of a higher degree of permanent impairment – and would thereby yield a more favourable result to the employee – must be applied. The matter for the Tribunal’s determination is, therefore, whether the degree of permanent impairment of the applicant resulting from his right lower leg injury is 10%, or more, under Table 9.5 in the approved Guide.
46. In accordance with Table 9.5 in the approved Guide, the degree of permanent impairment of an employee is 10% where the employee:
“Can rise to standing position and walk BUT has difficulty with grades and steps”.
In the present case it is common ground, and the Tribunal finds on the basis of the evidence before it, that the applicant “can rise to standing position and walk”, within the meaning of Table 9.5. The parties are in dispute, however, as to whether the applicant “has difficulty with grades and steps”, within the meaning of Table 9.5.
47. In Comcare v Moon (2003) 75 ALD 160 the Federal Court of Australia (Mansfield J) said (at 171):
“The term ‘difficulty’ in … table 9.5 is not a term of art, but carries its ordinary meaning: Comcare v Fiedler (2001) 115 FCR 328 at [22]; Whittaker v Comcare (1998) 86 FCR 532 at 538…”
In Comcare v Fiedler (above) the Federal Court of Australia, in interpreting the phrase “has difficulty with digital dexterity” in Table 9.4 in the approved Guide (which relates to upper limb function), said that, in order to satisfy the description “has difficulty with digital dexterity” in Table 9.4, “(s)omething more than minimal problems with digital dexterity is required”, but that, if a person “finds it troublesome or not easy to do tasks requiring digital dexterity”, that will satisfy that description (at 334).
48. In accordance with the abovementioned interpretation, it may be said that the applicant “has difficulty with grades and steps”, within the meaning of Table 9.5 in the approved Guide, if he finds it “troublesome or not easy” to negotiate grades and steps, provided that negotiating grades and steps presents “something more than minimal problems” for him. The Tribunal accepts, furthermore, that, for the purpose of determining whether the applicant “has difficulty with grades and steps”, within the meaning of Table 9.5, regard must be had to the degree of pain which is experienced by him in negotiating grades and steps: Comcare v Moon (above) at 171.
49. The applicant asserted that he has difficulty with walking up and down grades, negotiating steps and walking long distances, and he sought to explain the nature of that purported difficulty in his oral evidence (see paragraphs 15-16 above). Dr Williams accepted that the applicant has difficulty with grades, steps and distances and opined that the degree of his impairment under Table 9.5 is 20%. Dr Bell unfortunately did not address Table 9.5 in the approved Guide in his reports, but in his oral evidence he indicated that, on the basis of the applicant’s objective physical signs on examination, and his functions as shown in the surveillance DVDs (Exhibit R5), he did not accept that the applicant has difficulty with grades and steps. Dr Bell assessed the degree of the applicant’s impairment as “mild”. Likewise, Mr Whitewood, when he last saw the applicant on 19 May 2005, felt that his right lower leg symptoms were “minimal”.
50. The Tribunal prefers the evidence of Dr Bell and Mr Whitewood to that of Dr Williams. The Tribunal is satisfied that Dr Bell conducted thorough examinations of the applicant in May 2006 and March 2007 and that the opinions expressed by him in his reports and oral evidence, in relation to the level of the applicant’s right lower leg symptoms and the degree of his impairment, are objective and cogent. The opinions expressed by Dr Williams, on the other hand, are, in the Tribunal’s opinion, apparently based on acceptance by him of the applicant’s subjective history and insufficient testing of that history by objective physical examination, and are, accordingly, less reliable than the opinions expressed by Dr Bell. The Tribunal, having observed the applicant give his evidence and having viewed the abovementioned surveillance DVDs, agrees with the opinion implicitly conveyed by Dr Bell in his reports and oral evidence that the applicant’s account of his right lower leg symptoms and the degree of his impairment is exaggerated and cannot be regarded as reliable.
51. Having regard to the whole of the evidence before it, the Tribunal is not satisfied that the applicant finds it “troublesome or not easy” (Comcare v Fiedler, at 334) to negotiate grades or steps. On the contrary, the Tribunal is satisfied that, notwithstanding the permanent impairment resulting from the applicant’s right lower leg injury, negotiating grades and steps presents no more than minimal problems for him and he is able to negotiate grades and steps without difficulty.
52. Accordingly, the Tribunal finds that the applicant does not have “difficulty with grades and steps” within the meaning of Table 9.5 in the approved Guide and that he, therefore, does not satisfy the description of a level of impairment of 10% (the minimum impairment percentage specified) in that table. It necessarily follows that he also does not satisfy the description of a level of impairment of 20% in that table, and the Tribunal so finds. It is, furthermore, common ground that he does not satisfy any of the other descriptions of level of impairment in that table, and the Tribunal so finds.
Finding
53. It follows from the abovementioned findings that the degree of the applicant’s permanent impairment resulting from his compensable right lower leg injury is 5%, and the Tribunal so finds.
Conclusion
54. Pursuant to s 24(7) of the SRC Act the Tribunal concludes that, because the degree of the applicant’s permanent impairment is less than 10%, compensation is not payable to him under s 24 of that Act in respect of his right lower leg injury.
Decision
55. For the above reasons, the Tribunal affirms the decision under review.
I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr P A Staer, Member
Signed: ..........................[Sgd Y Maker].........................
AssociateDates of Hearing 12-14 November 2007
Date of Decision 18 January 2008
Advocate for the Applicant Mr C Prast
Solicitor for the Applicant Slater & Gordon
Counsel for the Respondent Ms P Giles
Solicitor for the Respondent Australian Government Solicitor
0
4
0