Stoiljkovic and Military Rehabilitation and Compensation Commission
[2008] AATA 295
•14 April 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 295
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2007/4449
VETERANS AFFAIRS DIVISION ) Re ROBERT STOILJKOVIC Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Mr S. Webb, Member Date14 April 2008
PlaceCanberra
Decision The decision under review is set aside and in place thereof, the Tribunal decides that Mr Stoiljkovic has a 20 percent whole person impairment under Table 9.5 of the Guide to the Assessment of the Degree of Permanent Impairment.
The matter is remitted to the Commission to determine the amount of compensation that is payable.
The parties have 14 days in which to make submissions in relation to costs. If no submissions are received, the Commission will be ordered to pay Mr Stoiljkovic's reasonable costs in these proceedings as agreed or taxed.
...........signed...................................
Mr S. Webb, Member
CATCHWORDS
COMPENSATION - knee injury - Applicant previously paid compensation for a 10 percent whole person impairment - claim for additional permanent impairment - meaning of 'difficulty with' 'distances' - Applicant has difficulty walking distances - decision set aside
Safety, Rehabilitation and Compensation Act 1986 ss 4, 24, 28, 67
Comcare v Fiedler [2001] FCA 1810
Re Mooney and Australian Postal Corporation [1995] AATA 12 (27 January 1995)
Comcare v Moon [2003] FCA 569 at [47]
Re Whelan and Department of Defence (1996) 47 ALD 383
Re Morley and Comcare (1996) 40 ALD 725
Re Watkins and Comcare [2002] AATA 613; (2002) 69 ALD 498
Re Hemley and Military Rehabilitation and Compensation Commission [2006] AATA 128
REASONS FOR DECISION
14 April 2008 Mr S. Webb, Member 1. Robert Stoiljkovic is 28 years old. He injured his right knee playing football while employed in the Australian Army. He successfully claimed compensation and obtained medical treatment, including a number of surgical interventions. Unfortunately for Mr Stoiljkovic, his knee condition did not resolve and caused ongoing impairment and incapacity. He claimed and was paid compensation for a 10 percent permanent impairment. He obtained further treatment including surgery, but his knee condition did not improve and he was medically discharged from the Army. Subsequently, he claimed further compensation for additional right knee permanent impairment. That claim was refused by primary determination[1] and on reconsideration.[2]
[1] T25.
[2] T35.
2. The parties informed me that there is no disputation concerning the occurrence of the index right knee injury. It is accepted that Mr Stoiljkovic has a permanent impairment as a result of that injury pursuant to s 24 of the Safety, Rehabilitation and Compensation Act 1986 (the Act), and that his right knee condition is likely to deteriorate over time. It is the present degree of the permanent impairment that is in issue. In particular, whether he has a 20 percent permanent impairment under Table 9.5 of the first edition of the Guide to the Assessment of the Degree of Permanent Impairment (the Comcare Guide) that is applicable in this case.
3. With regard to that Table, Mr Whybrow, counsel for the Military Rehabilitation and Compensation Commission, informed me that it is agreed that Mr Stoiljkovic is able to rise to standing position and walk, but experiences difficulties with grades and steps as a result of his permanent knee impairment. That is consistent with a 10 percent degree of impairment under that Table. On the basis of reports in evidence by Dr G. Long, an occupational physician,[3] and Dr O. Osti, an orthopaedic surgeon,[4] as well as Mr Stoiljkovic’s own evidence, I am satisfied that that concession is correct and so find. However, in order to qualify for further compensation for permanent impairment as a result of his right knee injury, it must be established that Mr Stoiljkovic’s permanent impairment has increased by 10 percent or more (subs 25(4) of the Act).
[3] T23.
[4] T28.
4. Thus, the matter proceeded in that narrow frame on the basis that the only issue for determination is whether Mr Stoiljkovic experiences difficulty with distances. It is to that issue that I now turn.
5. In the Commission’s submission, Mr Stoiljkovic experiences some difficulties with distances but not to the extent that he has a 20 percent degree of permanent right knee impairment. The Commission says that merely experiencing pain and stiffness is not consistent with difficulty walking distances. Furthermore, the Commission asserts that walking up to 1 kilometre without difficulty is not consistent with experiencing difficulty walking distances. The Commission says that a man of Mr Stoiljkovic’s age, with similar weight (Mr Stoiljkovic gave evidence that he weighs 131 kilograms) and psychological problems affecting his motivation (Mr Stoiljkovic suffers from a compensable depressive disorder), but without a right knee injury, may also experience difficulty walking more than 1 kilometre without a break. The Commission notes that on 29 January 2008, Dr S. McCappin, Mr Stoiljkovic’s treating general practitioner since his discharge from the Army, certified that Mr Stoiljkovic was “fit for training/employment in hospitality role up to 3 days weekly”, subject to the following restrictions: “no heavy lifting/avoid kneeling and squatting/”.[5] The fact that the Doctor did not specify any restrictions concerning walking distances or standing for prolonged periods, the Commission asserts, indicates that the Doctor did not consider it necessary to do so. In the Commission’s submission, Mr Stoiljkovic’s ability to work 8 hour shifts as a kitchen hand in a nursing home is a further indication that he does not experience difficulties with distances. Thus, the Commission says that Mr Stoiljkovic does not have a 20 percent degree of permanent right knee impairment and he is not entitled to further compensation in that regard.
[5] Exhibit R1.
6. As will appear I do not agree.
7. The degree of permanent impairment resulting from an injury is to be determined under the Comcare Guide (s 24 of the Act). Table 9.5 of that Guide sets out criteria for certain percentage degree of whole person impairment in a stepped scale, relevantly:
Table 9.5
Limb function – lower limb
(Percentage whole person impairment)
% 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.
…
8. The words ‘difficulty’ and ‘distance’ are not given particular meaning for the purposes of the Comcare Guide. In Comcare v Fiedler [2001][6], Drummond, Kiefel and Dowsett JJ discussed the meaning of the word “difficulty” in relation to the phrase “difficulty with digital dexterity”, that is used at Table 9.4 of the approved Guide. Their Honours observed:
“The word “difficulty”, like most ordinary English words, has no fixed meaning but is, as the Tribunal observes, 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.
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 v Comcare (1998) 86 FCR 532] at 544-545, justify a 10% impairment assessment under paragragh 1 of Table 9.4.”[7]
[6] FCA 1810.
[7] Ibid, at [22].
9. Following the construction outlined in Fiedler, if Mr Stoiljkovic finds it troublesome or not easy to walk distances, it may be found that he has ‘difficulty’ walking distances. It is not necessary for the limitation to be significant or substantial, but it must be more than slight or minimal.
10. Whether pain experienced in activity presents a ‘difficulty’ with that activity, for example, by making the function of walking harder to perform (Re Mooney and Australian Postal Corporation[8]), or whether it is simply a consideration going to ‘lifestyle effects’ is a question of fact (Comcare v Moon [2003][9]). The Principles of Assessment in the preamble to the Comcare Guide make clear that:
“Impairment is measured against its effect on personal efficiency in the ‘activities of daily living’ in comparison with a normal healthy person. The measure of ‘activities of daily living’ is a measure of primary biological and psychosocial function such as standing, moving, feeding and self care.
…
Whilst ‘activities of daily living’ are used to assess impairment they should not be confused with ‘lifestyle effects’ which are used to assess non-economic loss.”
[8][1995] AATA 12 (27 January 1995), at [34].
[9] FCA 569, at [47].
11. Mr Stoiljkovic says that he experiences constant low level pain and stiffness in his right knee. His evidence is that these symptoms are worse in cold weather and increase when he walks any distance. His uncontested evidence is that he can walk up to 1 kilometre on flat even ground without the pain becoming unbearable and causing him to stop. He gave the example of walking round the block with his wife once or twice each week, but stressed that he does not undertake much walking or other exercise because of the symptoms in his right knee. He says that if he was to walk distances greater that 1 or 1.5 kilometres the symptoms of right knee pain and stiffness would cause him to stop and he would have difficulty continuing. When questioned by the Tribunal on this point he conceded that he had not attempted to walk such distances but maintained that he would not be capable of walking more than 2 or 3 kilometres, even with breaks, and that to do so would take him 2 or 3 hours. Furthermore, Mr Stoiljkovic asserted that walking any distance causes jarring in his right knee that results in his knee locking or giving way. His evidence is that his right knee condition prevents him exercising and has caused him psychological disturbance. He says that he was forced to cease full time work as a warehouse manager in 2007 because the work involved a lot of standing and walking that exacerbated his right knee problems. Mr Stoiljkovic agreed that prior to leaving the Army, and prior to undergoing surgery in July 2006, he was required to walk 5 kilometres in less than 42 minutes in order to pass the compulsory Army fitness test. He gave evidence that he did so, but only after initially failing to complete the task within the required time. Mr Stoiljkovic says that he was only able to complete the fitness test because he was highly motivated to maintain his Army career and “pushed on” with the assistance of a knee brace despite excruciating pain in his right knee. His evidence is that presently he would not be able to walk such a distance.
12. No serious attack was mounted against Mr Stoiljkovic’s credit. As it appears to me, he was an honest and forthright witness.
13. Accepting his evidence, I am satisfied that Mr Stoiljkovic avoids walking distances greater than 800 to 1,000 metres and adapts his mode of passage because of the pain, stiffness and instability he experiences in his right knee. On his evidence, which I accept, these symptoms cause him to either limp, wear a knee brace, stop walking to rest and recuperate before continuing, or simply to avoid the activity altogether. These effects constitute objective manifestations of the symptoms, including pain, of which he complains. Thus, I am satisfied that these are relevant factors in the assessment of the degree of permanent impairment under Part A of the Comcare Guide, rather than factors to be considered in relation to lifestyle effects under Part B of the Guide (Comcare v Moon[10]).
[10] Above n 9, at [47].
14. On Mr Stoiljkovic’s evidence, he experiences symptoms of pain, stiffness and some instability walking any distance, but his difficulties increase when walking distances more than 1 or 1.5 kilometres. The greater the distance, the more severe the symptoms of pain, stiffness and instability, and the greater the difficulty he experiences. I accept this evidence and so find.
15. Does this constitute difficulty walking distances for the purposes of assessing the degree of Mr Stoiljkovic’s permanent impairment as a result of his right knee injury? I am reasonably satisfied that it does.
16. In previous cases, the Tribunal has adopted the approach of assessing difficulty with distances when applying Table 9.5 of the Comcare Guide in comparative terms to distances that may be traversed by a normal healthy person of the same gender and age as the applicant (see for example, Re Whelan and Department of Defence (1996)[11]; Re Morley and Comcare (1996)[12]; Re Watkins and Comcare[13]; and Re Hemley and Military Rehabilitation and Compensation Commission [2006][14]). Subject to the consideration of other relevant factors not related to the particular injury, but that may affect the claimed difficulty with distances, such as in this case issues concerning obesity and depression, that is a valid approach consistent with the Principles of Assessment if there is relevant probative evidence. In this case there is not. Nevertheless, I note that Mr Stoiljkovic is a 28 year old former soldier who passed his fitness tests (running set distances within certain times) and played Australian Rules Football prior to his injury in the Army. As a result of his injury he is no longer fit or able to undertake those activities and has difficulty walking distances that are substantially shorter than the 5 kilometres he was required to walk in or about December 2005 during his last fitness assessment prior to surgery and his medical discharge from the Army in August 2006. Thus, if such a comparison is to be made, it appears to me in the circumstances that Mr Stoiljkovic’s present difficulties concerning distances are substantial and significant when compared to his previous unimpaired personal efficiency and biological functionality.
[11] 47 ALD 383, at 399.
[12] 40 ALD 725, at 731.
[13] [2002] AATA 613, at [97].
[14] AATA 128, at [20].
17. The Commission’s submission that working an 8 hour shift performing kitchenhand duties in a nursing home indicates that Mr Stoiljkovic does not experience difficulties with distances is not made out. Mr Stoiljkovic’s evidence is that he works on Wednesdays and Sundays and is able to pace his work, taking breaks and sitting to rest when he needs to. He is able to perform some duties sitting on a stool. Furthermore, his evidence is that he experiences elevated symptoms of stiffness and pain in his right knee during the following day that is sufficient to cause him to delay walking round the block with his wife until the following evening or a later day. This evidence, which I accept, does not indicate an absence of difficulty walking distances, but rather supports the contrary conclusion. It is perhaps for this or similar reasons that Dr McCappin certified that Mr Stoiljkovic is only fit to work 3 days per week with restrictions. The Commission submitted that Dr McCappin does not appear to have specified any restrictions concerning standing or walking, thereby indicating that no such restrictions were warranted. Whether that is correct is moot: it appears possible that Dr McCappin’s medical certificate is a computer generated document and the field concerning restrictions may not be complete.[15] Furthermore, Dr McCappin’s reasons, if any, for not specifying work restrictions concerning walking and standing, if indeed he did not, cannot be assumed. Dr McCappin was not called to give evidence so these matters could not be tested.
[15] See Exhibit R1.
18. Dr Osti reported that Mr Stoiljkovic experienced difficulties with grades, steps and distances. The Doctor’s reported findings concerning grades and steps were based on clinical testing and objective measurement. However Dr Osti did not clinically test or objectively measure the difficulty asserted by Mr Stoiljkovic in relation to distances. Nevertheless, it is reasonable to assume that the Doctor’s reported conclusion of a 20 percent permanent impairment was based on Mr Stoiljkovic’s account of his difficulties in that regard. Dr Long reported that Mr Stoiljkovic experienced difficulty with grades and steps, but did not experience difficulties walking distances of several hundred metres. Dr Long’s report was based on his clinical findings and objective testing on each of these matters. As can be seen, neither of the Doctor’s reports provide probative evidence concerning Mr Stoiljkovic’s claimed difficulty walking distances greater than 1 kilometre. Proceeding on the basis that Mr Stoiljkovic’s evidence concerning his difficulties with distances is accepted and that evidence is consistent with his account of such difficulties to Dr Osti, I will accept Dr Osti’s assessment.
19. In sum, therefore, I am reasonably satisfied that Mr Stoiljkovic can rise to standing position and walk but experiences difficulty with grades, steps and distances. It follows that he has a 20 percent degree of permanent impairment as a result of his right knee injury. As the degree of the permanent impairment is 10 percent greater than the Commission’s previous assessment, he is entitled to payment of additional compensation.
20. Finally, Mr Sharwood, counsel for Mr Stoiljkovic, submitted that the degree of impairment may be consistent with a 30 percent degree of permanent impairment under Table 9.5. That submission was not seriously pressed. Correctly so. It is possible that Mr Stoiljkovic experiences difficulty walking but there is no evidence that he is limited to walking on level surfaces. By his own account, he is not. The submission is not made out.
21. The decision under review is set aside and in place thereof, the Tribunal decides that Mr Stoiljkovic has a permanent impairment as a result of his right knee injury of 20 percent under Table 9.5 of the Comcare Guide. The matter is remitted to the Commission to determine the correct amount of compensation that is payable pursuant to s 24 and s 27 of the Act.
22. As the matter is resolved in Mr Stoiljkovic’s favour, I am minded to order the Commission to pay his reasonable costs of these proceedings. However, the issue of orders for costs were not considered during the hearing. The parties will have 14 days in which to make submissions. If no submissions are filed, the orders indicated will be made.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
Signed: ….signed….
Jane Gribble
AssociateDate of Hearing 9 April 2008
Date of Decision 14 April 2008
Counsel for the Applicant Wayne Sharwood
Solicitor for the Applicant Jonathon May
Slater & Gordon, inc. D’Arcys
Counsel for the Respondent Steve Whybrow
Solicitor for the Respondent Andrew Shelley
Sparke Helmore
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