Venning and Military Rehabilitation and Compensation Commission

[2007] AATA 1832

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1832

ADMINISTRATIVE APPEALS TRIBUNAL      )       V 200601047

)       V 200601121

VETERANS’       APPEALS      DIVISION      )       V 200601196

Re TIMOTHY CYRIL VENNING  

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Miss E.A. Shanahan, Member

Date4 October 2007

PlaceMelbourne

Decision The Tribunal affirms the three decisions under review.

(sgd) Miss E.A. Shanahan

Member

MILITARY REHABILITATION AND COMPENSATION COMMISSION – veteran seeking permanent impairment compensation for multiple injuries – lumbar spinal disease declared permanent in 1986 – post traumatic stress disorder onset in 1986 – aggravation of back condition in 1994 - bilateral knee pathology previously compensated – decisions under review affirmed

Administrative Appeals Tribunal Act 1975  s 37

Compensation (Commonwealth Government Employees’) Act 1971

Safety Rehabilitation and Compensation Act 1988  ss 24 and 27

Veterans’ Entitlements Act 1986

Guide to the Assessment of the Degree of Permanent Impairment  Tables 9.2 and 9.5

Comcare Australia (Department of Defence) v Maida [2002] FCA 1284

Comcare v Van Grinsven (2002) 117 FCR 169

Department of Defence v West (1998) 85 FCR 491

Lee v Military Rehabilitation and Compensation Commission (2006) 92 ALD 600

Page v Telstra Corporation Limited [2003] FCA 478

Re Whelan and Department of Defence (1997) 47 ALD 383

Whittaker v Comcare (1998) 86 FCR 532

REASONS FOR DECISION

4 October 2007 Miss E.A. Shanahan, Member      

1.      Mr Timothy Cyril Venning has applied to the Administrative Appeals Tribunal for review of the decision of the Military Rehabilitation and Compensation Commission (the MRCC) rejecting his claims for permanent impairment as a result of bilateral osteoarthrosis of the knees, back pain associated with degenerative disease and  general anxiety disorder or post traumatic stress disorder (PTSD).

2. Mr Venning was self represented and Mr J Lenczner of counsel appeared for the MRCC. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T-documents).  The parties tendered the following documents:

For the Applicant:

Mr Venning’s undated statement regarding PTSD claim – Exhibit A1
           Mr Venning’s undated statement regarding his knee pathology – Exhibit A2

Mr Venning’s undated statement regarding his back pathology – Exhibit A3

For the Respondent:

T-Documents – Exhibit R1

Report of Mr M. Falkenberg, orthopaedic surgeon, dated 7 April 1998 –      Exhibit R2

Mr Venning’s service medical records – Exhibit R3

3.      Mr Venning, Mr I Critchley and Mr P Lugg, orthopaedic surgeons, Dr D Gras, occupational health physician, and Dr P Smith, psychiatrist, gave evidence at the hearing on 26 July 2007 and the resumed hearing on 8 August 2007.

BACKGROUND TO THE APPLICATION

4.      Mr Venning joined the Royal Australian Air Force on 24 May 1971 and was discharged at his request on 8 July 1991.  Since 1996 he has received a disability pension at the Special Rate under the relevant provision of the Veterans’ Entitlements Act 1986.  He suffered severe bilateral osteoarthritis of the knees with onset in 1990-1992, necessitating bilateral knee replacements in his forties; low back pain, secondary to degenerative spinal disease with onset in 1986; and PTSD with anxiety and depression with onset in December 1983.  During his service, Mr Venning suffered trauma to his back in a fall in 1986 and trauma to both knees while playing employment-related sports.  Based on a permanent impairment assessment of 10 per cent for each knee, his claim for lump sum compensation was accepted on 3 June 1992; although Mr Venning believes the sum received was less than it should have been.

5.      On 30 May 1995 Mr Venning underwent a right knee replacement and on 29 September 1998 a left knee replacement.  While these procedures have greatly decreased his pain, his mobility has diminished.  Mr Venning’s back pain, present since 1986, grew worse in 1994.  He attributed this to his abnormal gait related to his knee pathology.  Expert medical opinion was that the 1994 episode was a temporary aggravation.

6.      While Mr Venning claims his PTSD became permanent in 1994, the psychiatric opinions varied only in the date of onset, being 1983, 1985 or 1986. 

7.      The Compensation (Commonwealth Government Employees’) Act 1971 (the 1971 Act) did not provide for a lump sum compensation for psychiatric conditions or for permanent impairment due to back pathology.

8.      Mr Venning also has hypertension, diabetes type two and has undergone a left total hip replacement. 

EVIDENCE BEFORE THE TRIBUNAL

9.      Mr Venning told the Tribunal that he had been reasonably pain free since his bilateral knee replacements and to date had only required minor revisional surgery.  He sees his orthopaedic surgeon, Mr Critchley, every three months and has done so since 1991.  Before his total knee replacements he was able to mow his lawns and had a freer, albeit painful, range of movement.  Mr Venning spends a lot of his time watching television but tries to walk daily, occasionally weeds the garden from a sitting position and performs minor household tasks.  He is able to drive but breaks his journeys every 30 to 60 minutes.  His social activities are limited to occasional dining out, watching sport on television, visiting his step-daughter who lives nearby and attendance once per month at the local Returned and Services League of Australia club where he is President of the TPI section.  Mr Venning’s sleep remains poor partly due to sleep apnoea and he remains anxious.  His anxiety condition has improved with medication with rivotril and luvox.  He takes non-steroidal anti-inflammatory drugs (Prexige) for his back pain and has noted considerable benefit.  (The Tribunal notes that Prexige was withdrawn from the market as of early August 2007).

10.     Mr Venning has always been overweight.  His weight is now steady at 130 kilograms.  He has never smoked and has been a social drinker since 1991, having drunk alcohol to excess in the 1980s. 

11.     Under cross-examination by Mr Lenczner, Mr Venning was taken first to the reports of the psychiatrists and psychologists.  He agreed with their reports except to question why Dr Smith diagnosed a generalised anxiety disorder rather than PTSD.  He agreed with the content of Dr Gras’s report regarding his lower back pain and also with the service medical records and the medical reports of Mr Critchley, Mr Lugg and Dr Gras with respect to his knee conditions.  While Mr Venning agreed with the content of these reports he expressed concern as to which permanent impairment table was attracted; i.e. Table 9.2 or Table 9.5.  Mr Critchley had assessed his knees at 20 per cent for each knee under Table 9.2 and Dr Gras at 20 per cent for both knees under Table 9.5.

DOCUMENTARY EVIDENCE

APPLICATION V 200601047 - RELATING TO THE KNEE AND SECONDARY BACK CONDITIONS

12.     Mr Critchley, Mr Lugg (T35) and Dr Gras (T63 and 66) provided assessments of Mr Venning’s back pain.  They agreed that he had degenerative disease of the lumbar spine and, more probably than not, his knee conditions and abnormal gait resulted in increased symptoms of back pain but did not affect the underlying degenerative changes.  Dr Gras reported on 24 May 2006 that Mr Venning’s range of movement in the lumbosacral spine had improved slightly and that there was no definite evidence of progression of the back condition since 1998. 

13.     Mr M Falkenberg, orthopaedic surgeon, in his report dated 7 April 1998 (Exhibit R2), confirmed Mr Critchley’s opinion: that Mr Venning suffered from degenerative disc disease giving rise to lower back pain.  In his opinion, surgery was inappropriate in light of Mr Venning’s obesity, multiple joint pathology and personality.  Mr Falkenberg dated the onset of Mr Venning’s back pain as 1984. 

APPLICATION V 200601121 - RELATING TO PTSD

Dr P Grainger-Smith, Consultant Psychiatrist

14.     Dr Grainger-Smith, assessed Mr Venning in April of 1996 and, in a report dated 1 May 1996 (12), diagnosed an acute stress reaction to the burning of an Orion aircraft in 1983 or 1984, which had evolved into PTSD with a loss of mental power of 20 per cent. 

Dr P Roy, Consultant Psychiatrist

15.     In a report dated 2 June 1997 (T15) Dr Roy diagnosed a chronic stress disorder with clear post traumatic features superimposed on borderline mental retardation with a final diagnosis of PTSD arising from his Defence Service. 

Dr P Smith, Consultant Psychiatrist

16.     In addition to giving oral evidence, Dr Smith produced three reports in February 2006 (T28, 29 and 30).  He obtained a very detailed history from Mr Venning.  This included the report of Mr Venning’s attempted suicide in the 1970s, two further attempts in the 1980s and the details of the Orion aircraft fire in 1983.  In addition, Mr Venning reported unstable mood states dating back to his teenage years and excessive alcohol intake in the 1980s.  Dr Smith diagnosed an anxiety disorder dating from the Orion aircraft fire in 1983.  He was of the opinion that in the early years after this event Mr Venning had exhibited post traumatic stress symptoms and more recently depressive symptoms attributable to chronic pain from his joint pathology.  Dr Smith regarded Mr Venning’s prognosis as poor and his psychiatric status as stable and permanent. 

Mr R Thompson, Psychologist

17.     Mr Thompson had treated Mr Venning since February 2006.  Based on the Diagnostic and Statistical Manual of Mental Disorders IV, Mr Thompson made a diagnosis of PTSD arising from the Orion aircraft fire of 1983 in his report dated 11 September 2006 (T41). 

Dr S Sneyd, Treating General Practitioner

18.     In his report received by the Department of Veteran’s Affairs in January 2006 (T33), Dr Sneyd confirmed Mr Venning’s ongoing depressive and anxiety conditions.

APPLICATION V 200601196 - RELATING TO MR VENNING’S KNEE PATHOLOGY

Mr R Quirk, Orthopaedic Surgeon

19.     Mr Quirk produced three reports dated 10 and 31 March 1992 and 13 May 1992 (T13, 16 and 20).  He first assessed Mr Venning in February 1992 (T13) and diagnosed bilateral chondromalacia patellae with a 10 per cent impairment in each knee.  He expected further deterioration and predicted that Mr Venning would be confined to sedentary work such as clerical work.  Mr Quirk had performed a left knee arthroscopy and meniscectomy in 1990 and a right knee arthroscopy and meniscectomy in 1991.

Mr p Critchley, consultant orthopaedic surgeon

20.     Mr Critchley has treated Mr Venning since 1989 and has performed arthroscopies and resection of torn medial menisci; a right tibial osteotomy in 1992 and a left tibial osteotomy in 1993 (T24, 25 and 27).  Mr Critchley regarded Mr Venning as unfit for other than sedentary work.  In 1995 Mr Critchley performed a total knee replacement on Mr Venning’s right knee and a similar operation on the left knee in 1998.  Mr Critchley has since performed minor revisionary procedures on both knees.

21.     Mr Critchley assessed Mr Venning’s permanent impairment on 8 February 2007 (T45) using Table 9.2 of the Schedule 1B Impairment Table (first edition) and arrived at an impairment of 20 per cent for each knee.  Mr Critchley did not refer to Table 9.5. 

Mr P Lugg, Orthopaedic Surgeon

22.     Mr Lugg assessed Mr Venning at the Department’s request on 31 October 1995 (T40 and 46).  He attributed the left knee osteoarthritis to Mr Venning’s employment but found the work relationship to the right knee pathology less clear.  Mr Lugg regarded the degenerative lumbar spine disease to have been made more painful by the abnormal gait resulting from the knee pathology but not to have changed the underlying lumbosacral spinal condition. 

Mr R Coates, Orthopaedic Surgeon

23.     Mr Coates saw Mr Venning on 12 April 1994 (T33) and agreed with the diagnosis of bilateral osteoarthritis of the knees following injuries sustained in the course of Mr Venning’s service.  He regarded the prognosis as poor and that Mr Venning’s ability to regain employment was seriously compromised by his osteoarthritis, psychological status and poor literacy. 

Dr D Gras, Occupational Health Physician

24.     Dr Gras assessed Mr Venning on 2 February 2006 and found him wholly incapacitated for work due to his employment-caused bilateral osteoarthritis of the knees (T57).  Dr Gras assessed Mr Venning, in accordance with Table 9.5, as having a 20 per cent impairment of the combined lower limb function, with each knee contributing 10 per cent (T70). 

SERVICE MEDICAL RECORDS

25.     These records (Exhibit R3) document Mr Venning’s medical attendances between 18 November 1973 and 18 February 1986, for lumbar back pain on 17 May 1978, 4 May 1981 (after lifting a 20 kilogram drum), 2 February 1983, 22 December 1984 (after a fall) and again in early 2005 at which time Mr Venning was referred for physiotherapy.  His response to physiotherapy was described as a slow improvement but incomplete resolution of pain with persisting reduction in the range of movement of the spine. 

MILITARY REHABILITATION AND COMPENSATION COMMISSION DECISIONS

26.     In all three claims the Commission rejected Mr Venning’s application for lump sum compensation for permanent impairment on the grounds that: (a) his PTSD and back condition became permanent prior to the coming into operation of the 1998 Act; (b) the exacerbation of Mr Venning’s back pain in 1994 was a temporary aggravation; and (c) with respect to the knee pathology, the permanent impairment rating was 20 per cent for both knees and Mr Venning had already been compensated for 10 per cent permanent impairment for each knee. 

RELEVANT LEGISLATION

27.     The relevant legislation is contained in s 24 and s 27 of the Safety Rehabilitation and Compensation Act 1988 (the SRC Act):

24  Compensation for injuries resulting in permanent impairment

(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.

(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:

(a)the duration of the impairment;

(b)the likelihood of improvement in the employee’s condition;

(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and

(d)any other relevant matters.

(3)Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.

(4)The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).

(5)Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.

(6)The degree of permanent impairment shall be expressed as a percentage.

(7)Subject to section 25, if:

(a)the employee has a permanent impairment other than a hearing loss; and

(b)Comcare determines that the degree of permanent impairment is less than 10%;

an amount of compensation is not payable to the employee under this section.

(7A)Subject to section 25, if:

(a)the employee has a permanent impairment that is a hearing loss; and

(b)Comcare determines that the binaural hearing loss suffered by the employee is less than 5%;

an amount of compensation is not payable to the employee under this section.

(8)Subsection (7) does not apply to any one or more of the following:

(a)        the impairment constituted by the loss, or the loss of the use, of a finger;

(b)        the impairment constituted by the loss, or the loss of the use, of a toe;

(c)        the impairment constituted by the loss of the sense of taste;

(d)        the impairment constituted by the loss of the sense of smell.

(9)For the purposes of this section, the maximum amount is $80,000.

27Compensation for non-economic loss

(1)Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.

(2)The amount of compensation is an amount assessed by Comcare under the formula:

($15,000  x  A)  +  ($15,000  x  B)

where:

A is the percentage finally determined by Comcare under section 24 to be the degree of permanent impairment of the employee; and

B is the percentage determined by Comcare under the approved Guide to be the degree of non-economic loss suffered by the employee.

(3)This section does not apply in relation to a permanent impairment commencing before 1 December 1988 unless an application for compensation for non-economic loss in relation to that impairment has been made before the date of introduction of the Bill for the Act that inserted this subsection.

The 1971 Act did not provide for lump sum permanent impairment compensation for psychological or psychiatric conditions or for spinal pathology.

SUBMISSIONS

Mr Venning

28.     Mr Venning relied on the evidence before the Tribunal but questioned whether he had been paid the correct amount of compensation for his permanent impairment of both knees.  He also queried Dr Smith’s diagnosis of a general anxiety disorder rather than PTSD but appeared satisfied with Dr Smith’s explanation given at the resumed hearing on 8 August 2007. 

Mr Lenczner Representing the MRCC

29.     Mr Lenczner advised that Mr Venning should deal directly with the MRCC regarding his lump sum payment of June 1992 in respect of his knee conditions.

30.     Mr Lenczner submitted that, on the medical evidence before the Tribunal, Mr Venning’s psychiatric condition and his back condition became permanent in 1986, with his back condition suffering a temporary aggravation in 1994.  As such, he was not entitled to lump sum compensation under the 1971 Act.  The transitional and other provisions of the SRC Act did not assist Mr Venning’s claims.

31.     Mr Lenczner accepted the severity of Mr Venning’s osteo-arthritis of the knees and the compensation paid in 1992 for a 10 per cent permanent impairment of each knee.  However, he submitted that as both of Mr Venning’s knees had now been replaced with prostheses, the permanent impairment assessment process now attracted Table 9.5 of the Guide to the Assessment of the Degree of Permanent Impairment (First Edition) (the Guide).  The Guide specifically states that Table 9.5 applies following joint replacement.

32.     Mr Lenczner relied on the decisions in Comcare v Van Grinsvsen (2002) 117 FCR 169, Page v Telstra Corporation Limited [2003] FCA 478 and Re Whelan and Department of Defence (1997) 47 ALD 383 as to the appropriate Table to be used and the absence of any exercise of discretion by the primary decision-maker or the Tribunal.

TRIBUNAL’S DELIBERATIONS

33.     The Tribunal has no doubt that Mr Venning suffered from severe osteoarthritis of the knees with severe symptomatic onset from 1989 to 1992; that he has undergone bilateral total knee replacements; that he has had degenerative lumbosacral spinal disease symptomatic since 1986; and, either PTSD or a generalised anxiety disorder of onset in 1983-1984.  There was no conflict of medical opinion regarding the dates of onset and permanency of these conditions.  Mr Venning has been compensated by way of a lump sum payment, in June 1992, for his bilateral knee osteoarthritis/meniscal disease. 

34.     The 1971 Act did not provide for compensation for psychiatric conditions or lumbosacral spinal disease.  The application of s 124(1) of the SRC Act to pre-1988 permanent impaired persons has been considered by the Federal Court on several occasions.  In Lee v Military Rehabilitation and Compensation Commission (2006) 92 ALD 600, Moore J considered the decision in Department of Defence v West (1998) 85 FCR 491 and said:

[22] The application of s 24 of the SRC Act to individuals who developed permanent impairments before the relevant provisions of the SRC Act came into force has been considered in a number of Full Court decisions.  In large measure, the submissions of the parties focused on these decisions.  In West, Merkel J (with whom O’Connor J agreed) held that (at FCR 512; ALR 669; ALD 729):

… where a change in a permanent impairment occurring after the commencement date is such that, quantitatively and qualitatively, it is properly to be characterised as a further or new impairment occurring after the commencement date it is compensable by a lump sum payment under [s] 24.

Moore J quoted the decision in Comcare Australia (Department of Defence) v Maida [2002] FCA1284:

[23]  In Maida, Mansfield J accepted the following propositions as a correct summary of the law:

(i)the gradual worsening of the degree of impairment does not constitute a new impairment;

(ii)if there is no change in the patho physiological condition causing an impairment then any worsening of an existing impairment will not constitute a new impairment; and

(iii)a significant worsening may constitute a new impairment if there has been a change in the underlying patho physiological condition, so that there has been a qualitative change to the impairment – that is, the development of a new impairment.

35.     On the evidence before the Tribunal, Mr Venning’s PTSD symptomatology has, with treatment and the passage of time, improved to the extent that Dr P. Smith, psychiatrist, reached a diagnosis of generalised anxiety disorder rather than PTSD.  This does not constitute a new impairment but rather an improvement in the condition of PTSD since its permanency was established in 1983 (evidence of Dr Smith before the Tribunal).

36.     While Mr Venning experienced an exacerbation of his lumbosacral back pain in 1994, this has been regarded by all the orthopaedic surgeons who have given an opinion, as a temporary aggravation.  Similarly, all the expert evidence is to the effect that Mr Venning’s altered gait secondary to his knee pathology has not changed the underlying pathophysiological condition, but may have rendered his lumbosacral degenerative spinal disease more symptomatic in terms of the pain experienced. 

37.     Mr Venning’s severe osteoarthritis of the knees became permanent between 1989 and 1992 and therefore is to be considered under the SRC Act.  He was compensated by a lump sum payment for this injury, which was assessed in 1992 at 10 per cent permanent impairment of each knee under Table 9.2 of the Guide.The Tribunal accepts Mr Venning’s evidence that his mobility has decreased since undergoing bilateral knee replacements and that the clinical indication for this treatment was the relief of pain.  The Guide is clear in its instructions that following prosthetic replacement the resultant impairment is to be assessed under Table 9.5, which can be described as a functional assessment as opposed to a strict impairment assessment.

38.     In Re Whelan and Department of Defence (1997) 47 ALD 383, Senior Member Dwyer addressed the question of which Table was applicable. She concluded that there was no discretion to be exercised in determining whether Table 9.2 or 9.5 was the appropriate table for an assessment.

39.     The Full Federal Court also considered the question of bilateral knee disease in Comcare v Van Grinsven (2002) 117 FCR 169, stating:

[16]     … It is clear that for the purpose of Table 9.5 the respondent does not suffer from more than one impairment.  He may suffer from two knee injuries, but for the purpose of Table 9.5 these only give rise to the one impairment – that is, “Can rise to standing position and walk but has difficulty with grades, steps and distances”.  Thus Dr Pentis’s assessment is that the respondent has a 20% “whole person impairment” and Ms Bertoldi’s assessment is that he has an “overall level of lower limb impairment” of 20%.  By way of contrast, for the purpose of Table 9.2 he can be said to have multiple impairments.  In Table 9.2 each single joint injury is an impairment.  That is why it is necessary to use Table 14.1 to combine these impairments in order to obtain the whole person impairment percentage. 

Although at paragraph 17 the Court noted that in Whittaker v Comcare (1998) 86 FCR 532, the Federal Court had concluded that when Tables 9.2 and 9.5 ---overlapped---… or had a mutually exclusive operation, and if the former what was the relationship between them, the Court should adopt a construction that favours the worker in accordance with the principle applicable to socially remedial legislation.  The Court concluded that where both Tables 9.2 and 9.5 are literally capable of application, the injured party should be given the benefit of the more favourable Table.  such an approach gives Comcare the flexibility to deal with the large variety of situations which can emerge when dealing with compensation for injury resulting in a fair outcome for an injured person.  By way of example, Table 9.2 combined with Table 14.1 provide just monetary compensation for a person who has injuries which impair the movement in the knees and ankles yet is able to “difficulty rise to a standing position and walk but has difficulty with grades and steps”.  Conversely, Table 9.5 ensures a just outcome for a person who has only one or two single joint injuries yet is severely incapacitated in the ability to stand and/or walk.

In Van Grinsven the Full Federal Court determined that the 20 per cent whole person impairment had been appropriately assessed under Table 9.5. 

40.     Mr Critchley, at the request of the MRCC, assessed Mr Venning’s permanent impairment for meniscal injury to both knees in early 2007.  He assessed each knee at 20 per cent impairment (total 40 per cent) using Table 9.2, despite Mr Venning no longer having any menisci following his total knee replacements.  Dr Gras using Table 9.5 assessed Mr Venning’s impairment rating at 20 per cent on the basis that he could rise to standing position and walk but has difficulty with grades, steps and distances. 

41.     The Courts have, on occasion, taken the view that the Tables to be used should not be determined strictly according to the Guide.  Where Tables overlap but are not mutually exclusive in their operation, the Courts should adopt a construction that favours the worker (Whittaker).

42.     In this matter there is no overlap.  Mr Venning no longer has anatomical knee joints.  His highly engineered (probably titanium) prosthesis are devoid of cartilage, bone, blood supply and innervation.  Only Table 9.5 can apply according to the relevant Guide.  The pre-total knee replacement permanent impairment assessment was 10 per cent for each knee and the current assessment is 20 per cent inclusive of both knees.  Mr Venning’s impairment rating has not changed from 1992 to the time he lodged his claim on 12 December 2005.

43.     A second edition of the Guide came into operation on 1 February 2006.  Given that Mr Venning’s claim for a further permanent impairment for his knee pathology was made on 12 December 2005, he was not qualified for the benefits of assessment under the second edition of the Guide.  Had he been so qualified, it is possible that Mr Venning’s permanent impairment rating for his knees under the new Table 9.7, assessing each replaced knee separately at 20 per cent (as did Mr Critchley in January 2007), would have yielded a combined whole person impairment of 36 per cent, attracting a further lump sum compensation payment under the SRC Act.

44.     The current edition of the Guide does not contain the direction that where a joint has been surgically replaced, assessment is in accordance with its function (Table 9.2 of the first edition of the Guide).

45.     In light of the changes to the Guide effective from 1 February 2006, Mr Venning might consider lodging another claim for permanent impairment relating to his knee conditions.

46.     For the reasons given above, the Tribunal affirms all three decisions under review.

I certify that the forty-six [46] preceding paragraphs are a true copy of the reasons for the decision herein of Miss E.A. Shanahan:

Signed: Ursula Noyé

Clerk

Dates of Hearing  26 July 2007 and 8 August 2007
Date of Decision  4 October 2007
Advocate for the Applicant          Self-represented
Counsel for the Respondent        Mr J Lenczner
Solicitor for the Respondent        Sparke Helmore