Whittaker and Comcare
[2002] AATA 1226
•22 November 2002
DECISION AND REASONS FOR DECISION [2002] AATA 1226
ADMINISTRATIVE APPEALS TRIBUNAL )
) No D2001/19
GENERAL ADMINISTRATIVE DIVISION )
Re PAUL MAURICE WHITTAKER
Applicant
And COMCARE
Respondent
DECISION
Tribunal Deputy President Don Muller
Date22 November 2002
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and determines that Paul Maurice Whittaker suffers from a whole person permanent impairment of 20% pursuant to the "Guide to the Assessment of the Degree of Permanent Impairment", in relation to a work-related injury to his right knee. The respondent to pay the applicant's costs in accordance with the General Practice Direction.
...........Signed.....................……..
Deputy President
CATCHWORDS
WORKERS COMPENSATION – degree of permanent impairment
REASONS FOR DECISION
This is an application to review a decision made on 23 January 2001 to affirm the determination made on 17 July 2000 to defer the assessment of the Applicant's claim for permanent impairment for twelve months on the basis that his injured right knee had not stabilised.
The following facts are not in dispute and the Tribunal finds:
(i)The applicant was born on 22 October 1959.
(ii)His employment with the Australian Public Service ("APS") may be summarised as follows:
(a)He was initially employed as an air-conditioning and refrigeration mechanic with the Department of Administrative Services ("DAS");
(b)He later reached the level of General Services Officer Class 7 with the Department of Finance and Administration ("DOFA");
(c)He was involuntarily retired from the APS on 22 June 2000, at which time he was a permanent employee.
(iii)The applicant first suffered an injury to his right knee on 8 April 1997 at which time he was "put off work" from 14 to 17 April 1997 and was treated with anti-inflammatory medicines.
(iv)He further injured his knee on 10 November 1997.
(v)He submitted a Claim for Rehabilitation and Compensation dated 26 November 1997 in respect of "right knee" injured on 10 November 1997.
(vi)Liability was accepted on 9 January 1998 for "twisted right knee possible meniscus injury" and in the determination of that date it was stated that "….medical and other evidence…indicates it is likely your compensable condition will resolve by 11/2/98".
(vii)He underwent surgery to his right knee in January 1998 and September 1998.
(viii)On 10 September 1998 the applicant was notified that he would be declared "excess" on 22 September 1998 unless he was fit to return to work before 31 September 1998.
(ix)He subsequently lodged a grievance with the Merit Protection and Review Agency ("the MPRA") in relation to this decision to have him declared excess.
(x)By letter dated 30 September 1999 the MPRA notified him that his grievance application was not sustained.
(xi)On 15 January 1999 the applicant's general practitioner certified him fit for modified duties in a graduated return to work program from 1 February 1999.
(xii)On 7 May 2000 the applicant claimed for Permanent injury in respect of (a) articular cartilage damage right knee, (b) secondary osteoarthritis, (c) thigh muscle wasting and reduced range of movement consequent on (a) and (b).
(xiii)On 17 July 2000 the respondent deferred assessment of the claim for 12 months.
(xiv)On 17 August 2000, the applicant sought reconsideration.
(xv)On 23 January 2001, the respondent affirmed the determination to defer assessment.
The question for determination by the Tribunal is whether the applicant is entitled to compensation for permanent impairment pursuant to sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1988. In particular, the Tribunal has to decide:
(i)Whether the condition of the applicant's right knee has stabilised;
(ii)Whether the condition is permanent;
(iii)The degree of any permanent impairment.
It was agreed between the parties that Table 9.5 ("Limb Function – Lower Limb") of the Guide is the relevant Table for the purposes of assessment in this case. It was also agreed that the appropriate degree of permanent impairment provided for in Table 9.5, in the case of Mr. Whittaker, is either 10% or 20%.
10% can rise to standing position and walk BUT has difficulty with grades and steps.
20% can rise to standing position and walk BUT has difficulty with grades, steps and distances.The only difference between 10% and 20% is that to satisfy 20%, the applicant must have difficulty with distances. The term "distances" is not defined.
The applicant has seen a large number of medical practitioners whose reports are contained in the documents placed before the Tribunal. The following excerpts have been taken from some of those reports.
Dr Howard Flavell's report dated 15 March 1999:
" He has a very substantial disability due to his right knee problems. It would seem almost certain that he is likely to be left with a significant permanent impairment.."
Dr Gavin Chin 's letter dated 21 September 1999 :
"He has been working four hours a day five days a week and this has resulted in increased pain and swelling in the right knee requiring elevation and ice at the end of the day."IRS Total Injury Management report dated 22 October 1999:
"Mr Whitaker's current vocational options are extremely limited due to physical restrictions and minimal transferable skills in more sedentary areas. Complicating the possibility of identifying long-term vocational options is the lack of clarity regarding long-term restrictions. However, medical information does suggest that a return to pre-injury duties is unlikely."
Report by Mr Peter Lugg, Consultant Orthopaedic Surgeon, dated 13 November 2000 commissioned by the Applicant's solicitors:
"I believe that condition has become permanent. Significant improvement is unlikely, although it is possible some improvement could be obtained by some aggressive investigation to sort out the exact source of his symptoms…."
Report by Mr Peter Lugg dated 19 October 2000:
"This man's right knee condition is best assessed on Table 9.5 of the Comcare Guide. According to this table, he would have a disability of 20%."
Report by Mr Phillip Hardcastle, Consultant Orthopaedic Surgeon, dated 31 July 2001:
" I would therefore consider the original injury to be a work aggravation of a pre-existing degenerative condition but causing aggravation to a significant degree.
…at this stage I would consider his impairment has stabilised and that he has been left with a permanent disability…. Under Table 9.5 he would be considered to have a 10% Whole Person Impairment."
Doctors Lugg and Hardcastle gave evidence at the hearing. Dr. Lugg's opinion was unchanged from that given in his written report. Dr. Hardcastle gave evidence during which he made the following points:
(i)The applicant has quadriceps wasting;
(ii)He has been limping for a long time;
(iii)He has significant symptoms in his knee;
(iv)The applicant should be able to walk one to two kilometres but he would have difficulty walking anything over half a kilometre.
Mr. Whittaker gave evidence which was corroborated by evidence from his wife, to the effect that prior to his injury he was very actively involved in the Army Reserves, sports and social activities, but that now he cannot even walk from his home to the shops 1.5 kilometres away. He said that he used to jog to the shops but on one recent occasion he hobbled to the shops and then caught a taxi to get back home. The Tribunal has no reason to not accept the evidence of the applicant and his wife.
The evidence is all one way that the injury and impairment to the applicant's right knee has stabilised, is permanent and has given rise to a whole person permanent impairment of 20% pursuant to the Guide.
The decision under review is set aside.
I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller.
Signed: .....................................................................................
C. O'Donovan, AssociateDate/s of Hearing 22 April 2002
Date of Decision 22 November 2002
Counsel for the Applicant Mr. D. O'Gorman
Counsel for the Respondent Mr. C. Clark
Solicitor for the Respondent Australian Government Solicitor
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