Young and Military Rehabilitation and Compensation Commission

[2004] AATA 905

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 905

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/1052

GENERAL ADMINISTRATIVE  DIVISION		)
Re		LAVARNA SHELBIE YOUNG

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Ms MJ Carstairs, Member

Date9 August 2004

PlaceBrisbane

Decision

 The Tribunal sets aside the reviewable decision dated 25 November 2002 and remits the matter to the respondent to determine the amounts payable under s24 and s27 of the Safety, Rehabilitation and Compensation Act1988 (the Act), in accordance with the finding that the applicant has a whole person impairment of 10% assessed under Table 9.5 of the Guide to the assessment of the degree of permanent impairment.

The Tribunal orders that the applicant’s costs be paid in accordance with s67 of the Act.

..............[Sgd].................

Member

CATCHWORDS

COMPENSATION –wilful and false representation - permanent impairment

Safety, Rehabilitation and Compensation Act 1988 ss 4, 7(7), 14(1), 24

Comcare v Fielder [2001] FCA 1810
Van Reesch v Health Insurance Commission & Comcare (unreported, FCA, 1 March 1996)
McDonald v Director-General of Social Security (1984) 6 ALD 6
Re O’Maley and Comcare (1997) 48 ALD 300
Schofield and Comcare (1995) 38 ALD 124
Iannella v French (1968) 119 CLR 84

WRITTEN REASONS FOR ORAL DECISION

August 2004 Ms MJ Carstairs, Member

1.      This is an application by Lavarna Shelbie Young (the applicant) for review of a decision made by a delegate of Comcare refusing a claim for permanent impairment.

2.      At the hearing of this matter Mr R Hume of counsel, instructed by Stockley Furlong Solicitors, represented the applicant, and Mr C Clark of counsel, instructed by Phillips Fox Solicitors, represented the respondent.

3.      The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T18), together with exhibits A1 – A8 for the applicant and exhibits R1 – R8 for the respondent.   The Tribunal gave oral reasons for decision after the hearing.  The respondent has requested these reasons in writing.

BACKGROUND

4.      The applicant was born on 1 June 1974.  She holds a Bachelor of Arts degree and joined the Queensland Police Service in 1994. She is currently working as a senior constable in a forensic unit that deals with the investigation of crime scenes.   On 10 April 2001 she enlisted in the Australian Army Reserve. 

5.      During the course of her military training at Kapooka in April 2001, the applicant developed knee pain followed by bilateral shin pain after undertaking running and pack marches.  X-rays taken in May 2001 revealed stress fractures in both legs.

6.      On 7 January 2001 (T5) the applicant claimed compensation for shin splints and stress fractures sustained while running during basic physical training for the Army Reserve at Kapooka on 24 April 2001.  The condition was diagnosed as bilateral tibial periostitis and the claim was accepted by a delegate of Comcare on 18 February 2002 (T9) as having arisen in the course of her military service.  When sent the decision the applicant was told that there may be other benefits available and she was provided with a form headed Benefit Election Form.  The applicant returned this form on 25 March 2002 (T10), having answered the question “Do you wish to claim for a lump sum for permanent impairment?”  “Yes. But not at this stage”.   Nevertheless on 7 June 2002 (T11) a delegate of Comcare, having accepted the views of Dr D Hilford, decided to refuse the applicant’s claim for permanent impairment as her level of impairment had been assessed as NIL under the Guide to the Assessment of the Degree of Permanent Impairment (the Guide), , medical practitioner.  In a reviewable decision dated 25 November 2002 (T17) a delegate affirmed the original decision.  On 2 December 2002 the applicant lodged an application with the Tribunal. 

7.      On 31 March 2004 the applicant underwent surgery on her legs for “compartment syndrome”.  Dr J Bartlett, orthopaedic surgeon, carried out bilateral anterior and peroneal compartment fasciotomies which involved lateral incisions in the upper and lower aspects of the applicant’s calves.

EVIDENCE

8.      In a written statement dated 28 February 2003 (exhibit A4) the applicant said that she had not experienced any lower limb problems before enlisting in the Army Reserve.  She amended this statement later (exhibit A5 - dated 4 June 2003) to state that, in 1994, towards the end of recruit training in the Queensland Police Service she had experienced an episode of leg discomfort in both lower limbs that resolved the following day after the application of ice.  She said that after the episode in 1994 she had no further symptoms until undertaking the training at Kapooka.  The applicant stated that at Kapooka she reported symptoms to the regimental aid post (RAP) and despite treatment which included ice packs, elastic bandaging, anti-inflammatory medication and pain killers, the condition persisted.   She stated that after she had x-rays and a bone scan in April 2001, a doctor at Kapooka barracks told her that she could not complete basic training.

9.      The applicant said that she returned to Brisbane on 22 May 2001 and was given a medical certificate for light duties by her general practitioner.  She was referred to the fracture clinic at Logan Hospital.  After attending the fracture clinic in June 2001 she spent three months on crutches and spent ten months on light policing duties.  She obtained certificates from an orthopaedic surgeon, Dr P Johnstone, and on his advice kept her legs elevated, applied ice and took Panadol to reduce discomfort.  She said she saw Dr Woods, an exercise physiologist, who recommended strengthening exercises and referred the applicant to Dr M Craig, a musculoskeletal physician, in December 2001.  The applicant said that she was given cortisone injections to both legs, both knees and the lower spine in December 2001.  The applicant described in her statement (February 2003) that at that time she was having massages fortnightly, attending a gym and elevating and applying ice to her legs daily. She stated that although the pain was worse in the left leg, she still had  pain in both legs, aching pain in both knees with an occasional sharp knee pain and swelling in both legs.  She said that at work she had problems with standing, crouching and ascending and descending stairs. She stated that she believed she would no longer be able to undertake general policing duties.

10.     In her oral evidence the applicant confirmed that when she returned to police work in 2001, her employer accommodated her condition by allocating her to day shifts where she carried out keyboard tasks with her legs raised on a chair.  She said that once she returned to full-time duties at crime scenes her symptoms were hard to manage if she spent lengthy periods of time at the scene.  She found that she could complete the duties but would have to rest with her legs up at home at the end of the day. 

11.     Much of the discussion of limitations from 2001 to 2003 canvassed in the applicant’s written statements and oral evidence was superseded by the occurrence of the surgery in March 2004.  Concerning the present state of her condition, the applicant said that she continues to experience soreness in her legs but that it is more bearable and the swelling is less than she experienced prior to surgery.  She said that she was encouraged to exercise after the surgery and she is now able to walk on a flat surface for 40 minutes at a slow pace.  She said that she experiences pain after twenty minutes but keeps going.  In recent weeks she said she has added a run of about 80 metres to the end of her walks. 

12.     The applicant said that she cannot undertake certain leisure activities that she was able to enjoy prior to the injury. She noted that she has gained weight and believes it is a result of her reduced capacity to exercise.  She said she will return to swimming when the scars from her surgery heal fully.  She said that she avoids using stairs as she gets pain and aching. However she said that at her workplace there are two flights of stairs which she usually goes up and down a couple of times a day even though there is a lift in the building.

13.     The applicant was extensively questioned and cross-examined concerning answers that she had given on her entry medical for the Army Reserve (T4 and exhibit R7).  She said that she had filled out the form at home prior to attending the examination and had signed and dated it then; not observing the instruction on the form that it was to be signed only after the medical examination.  The questionnaire included one question:

Have you ever had or are you now suffering from any of the following:

…..

140.Shin pain on exercise

which the applicant had ticked “No” (T4, p33).  The document was signed twice. One signature and date was crossed out and replaced by a later signature and date after the medical examination had occurred.  She said under cross-examination that she had ticked “No” to the question:

6   Have you had or now have any knee leg or foot pain when exercising?

in a document dated 10 April 2001 headed Attestation Medical Assessment (T4, p27) because at the time she had no shin pain and had not experienced any further symptoms after the incident in 1994. The applicant said during the entry medical examination she had told the doctor that she had experienced shin splints at the Police Academy. 

14.     In a report dated 8 October 2002 (T15), Dr J Curtis, orthopaedic surgeon, noted the applicant’s past history of shin splints sustained during police recruit training and the injury sustained in April 2001 while in the Army Reserve.  He said that the bilateral stress fractures had resolved.  At the time of the report he said the applicant had symptoms of pain down both legs, more severe on the left than the right, as well as knee pain.  He said that pain was present almost constantly but was aggravated by walking for 100 metres or more, by driving, by ascending and descending stairs or slopes and when attempting to kneel.   He noted variable pain through her left knee.   In a report dated 6 February 2003 (exhibit A1), Dr Curtis said that he accepted the applicant’s symptoms as described by her and without (independent) confirmation.  Dr Curtis said the symptoms were consistent with bilateral shin splints and compartment syndrome.   In his report dated 11 June 2004 (exhibit A2), Dr Curtis assessed the applicant under Table 9.5 as able to rise to a standing position and walk but had difficulty with grades steps and distances.  Dr Curtis said it was possible that she would require bilateral fasciotomies (where the fascia is cut to relieve pressure on muscles caused by the tight surrounding fibrous connective tissue (fascia)).,

15.     Dr Curtis said that at the time of his report dated 11 June 2004 (exhibit A2), and after the surgery undertaken on 31 March 2004, the applicant continued to suffer sharp pain in the upper aspect of her left calf and cramp like discomfort in both feet after 15 minutes of walking and an aching sensation around the circumference of both knees. He stated that the sharp radiating pain spreading down the lateral aspect of both shins which the applicant had experienced, had ceased.  He said present symptoms were now precipitated by walking and standing longer than 30 minutes.  He said she was able to ascend and descend stairs or sloping surfaces but still had pain and difficulty when attempting to squat or kneel.  In his oral evidence Dr Curtis said that the sharp pain in the upper aspect of the applicant’s left calf and the cramp-like discomfort in both feet after 15 minutes of walking was not related to anterior compartment syndrome.

16.     Dr Curtis said he conducted functional tests on stairs and accompanied the applicant on a twenty minute walk at 3-4 km per hour (a distance of 1.5km) on undulating ground.  Dr Curtis said that the applicant experienced shin pain after completing two flights of stairs and, after resting for five minutes, she was able to continue for a further four flights of stairs before having to cease.  In oral evidence he said that the pain was located on the front and outer aspect of both shins from the knees to the ankles and was consistent with post-compartment syndrome.  He said that knee pain was not aggravated by the stair climbing.  In oral evidence, Dr Curtis said that he had no explanation for the applicant’s knee pain as there was nothing evident on clinical examination of the knee. 

17.     Dr Curtis said that the applicant was able to walk for twelve minutes before shin pain commenced; the pain becoming severe by fifteen minutes.  He said that after rest she was able to complete the twenty minute walk.  In his oral evidence Dr Curtis said that he noted her pain increased when she had to undertake a gradual ascent at one (not particularly steep) part of the walk.  Dr Curtis again assessed the applicant as having a 20% permanent impairment under Table 9.5.  In his oral evidence Dr Curtis acknowledged that, in June 2004, it was early in the post surgery recovery phase to assess the applicant. However he said she had completed the rehabilitative phase and the bulk of recovery occurs in the first three months.  He said that she had improved since his assessment in October 2002 though the symptomatic relief was less than seventy per cent.  

18.     Dr Curtis said that the only test for compartment syndrome was pressure testing and about 70% of patients who have fasciotomies obtain good relief from symptoms.  Dr Curtis said that he disagreed with Dr Fairbairn’s opinion that the applicant’s injury should have resolved with rest and that the diagnosis of compartment syndrome was “dubious”.  Dr Curtis said the results of Dr Young’s pressure testing had established the diagnosis and that it is generally accepted 30% of patients do not improve with the surgery.

19.      Dr S Fairbairn, orthopaedic surgeon, was consulted in the applicant’s case and referred her to Dr M Young, sports physician, for pressure testing to establish whether the applicant had compartment syndrome.  In Dr Young’s written report dated 15 October 2003 (exhibit R5), he stated that when taking the applicant’s history she described experiencing exercise-related pain bilaterally through the anterior and lateral compartments of the shin after ten to thirty minutes of exercise.  Dr Young said there was tenderness over the medial tibial border consistent with teno-periostitis.  He pressure tested the applicant after thirty minutes exercise, at which time she had developed pain and weakness through the anterior shins.  In his oral evidence he said he conducts the test by pushing the person to his or her maximum exercise tolerance. That is to the point where pain is severe.  The results of the pressure testing enabled Dr Young to conclude that the applicant suffered from anterior compartment syndrome and he recommended referral to a surgeon for consideration of anterior compartment fasciotomy; noting in his report that surgery was successful in relieving 70% of cases.

20.     In his oral evidence Dr Young acknowledged that there is some debate in medical circles about the necessary readings from pressure testing to diagnose compartment syndrome but he said that most authorities say that a resting pressure of 15mm of mercury after 5 or 7 minutes is sufficient for the diagnosis.  Dr Young said the applicant’s resting pressure was not very high but was sufficient to confirm the diagnosis.

21.     Dr J Bartlett saw the applicant in June 2004 and July 2004 after having carried out her surgery.  He produced two reports (exhibits A3 and A8).  The applicant reported improvement in her symptoms post-surgery and told him that the pain she was experiencing with day-to-day activity had reduced.  He said that she told him she was able to walk on flat surfaces without pain and able to go up an incline or some stairs before experiencing discomfort.  She continued to report knee pain.  Dr Bartlett observed that she had difficulty with ascending more than 2 or 3 flights of stairs.  Dr Bartlett considered that her condition was permanent and that under Table 9.5 she had an impairment of 10%. 

22.     In his oral evidence Dr Bartlett said that after five months she had achieved any expected benefits of the surgery, though he thought when he saw her in June 2004 some further improvement was possible.  He said that he saw the applicant on 29 July 2004 and noted further improvement.  She could walk for 30-40 minutes without discomfort but continued to experience restriction on stairs.  He said that taking into account her age she still rated 10% under Table 9.5 as, without the condition, she would be expected to climb stairs without difficulty.

23.     Under cross-examination Dr Bartlett said he has seen many cases where an episode of increased activity precedes a compartment syndrome and that the mechanics of the problem appear to be the muscles remain larger than the encompassing area; thus continuing to cause trouble even with a lesser level of activity.  Dr Bartlett said he was unable to differentiate whether knee pain or leg pain caused the applicant’s difficulty with stairs, though he agreed that knee pain was a problem for her.  He agreed that the applicant’s ability to handle distances had improved substantially after the surgery.  He said that she coped with slopes but he thought that she would struggle with four flights of stairs.

24.     Dr S Fairbairn, orthopaedic surgeon, said that he first saw the applicant in April 2003 and prepared four reports (exhibits R1 – R4).   Dr Fairbairn took a history of shin splints in 1994 at the Police Academy and the injury sustained in the Army Reserve, as well as current symptoms including swelling of the legs with activity,  pain in the postero-medial tibiae, anterior tibial pain of a burning stinging nature and pain in both knees.  He said that medial imaging in May 2001 showed stress fractures of the right and left tibia and extensive bilateral periostitis, though the stress fractures later resolved (exhibit R1).   Dr Fairbairn stated that he thought that the applicant had a biomechanical abnormality of her lower limbs that resulted in stress to the lower limbs with activity.  He stated this was not a disease but an overuse injury.  He thought the injury sustained in the Army Reserve should have healed, a view he restated in his report dated 19 June 2003 (exhibit R2).

25.     In his report dated 15 December 2003 (exhibit R3) Dr Fairbairn stated that the applicant

…has had tibial periostitis and a stress fracture in the past...Chronic compartment syndrome pain should only be felt when the compartment is exercised significantly.  The reason for this is that there is a tight compartment.

26.     Dr S Fairbairn referred the applicant to Dr Young to conduct the pressure testing.  In his report dated 23 July 2004 (exhibit R4) Dr Fairbairn noted that the American Academy of Orthopaedic Surgeons used a different pressure scale than that adopted by Dr Young when diagnosing the presence of compartment syndrome in the applicant’s case.

CONSIDERATION OF THE ISSUES

27.     Under s4 of the Act, the words permanent and impairment are defined as follows:

4(1)        In this Act, unless the contrary intention appears:

permanent means likely to continue indefinitely.

Impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.

28.     The Principles of Assessment at page 3 of the Guide, under the heading Impairment and Non-Economic Loss, state:

Impairment is measured against its effect on personal efficiency in the ‘activities of daily living’ in comparison with a normal healthy person.

29.     Section 24 of the Act sets out:

24(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.

30.     The Guide provides the following descriptions at the levels of 10% and 20% for assessing limb function of the lower limb as a percentage of whole person 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

31.     The parties agreed that the Federal Court decision in Comcare v Fielder [2001] FCA 1810 should guide the Tribunal in making an assessment under Table 9.5. In that case the Court considered the phrase difficulty with dexterity and said that something more than minimal problems is required, but that if a person, as a result of their injury, finds it troublesome or not easy to do a task, the word difficulty will be correctly applied to describe that.

32.     Mr Clark submitted that there were several issues for the Tribunal, firstly a threshold issue concerning s7(7) of the Act; secondly whether the injury has resulted in permanent impairment; thirdly the role of knee pain in the assessment of the applicant’s condition; and whether, if the applicant has continuing impairment, it is too early to assess permanence as there may yet be room for improvement.  He said that the applicant’s credibility was in issue, both in terms of her false answers to questions at her entry medical and because the assessments of medical practitioners relied on her accurate reporting of symptoms, as was acknowledged by the doctors in giving evidence.

33.     The first issue arising is that of the operation of s7(7) which provides:

(7) A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.

34.     Mr Clark submitted that disease has the meaning given in s4 of the Act.  He submitted that it was vital honest and factual information is given, and the Tribunal should take into account her false answers; especially considering the applicant gave comprehensive details about injuries or conditions she had suffered long before 1994 when answering other questions.  He said her evidence about the way she filled out the form was contradictory and self serving.  He referred to her evasiveness about whether there was one episode of shin splints in 1994 or repeated occurrences over a number of days.  Mr Clark submitted that the Tribunal should follow the Tribunal decision in Schofield and find that her statement on the entry medical was both wilful and false.

35.     Considering this as a first issue, the Tribunal had the opportunity to observe the applicant giving her evidence about the entry medical questionnaire and about her injury generally.  In regard to the overall progress since the injury in 2001, the Tribunal accepts that her recall and descriptions were accurate, even if there were minor inconsistencies in what various doctors wrote in reports – for instance about her ability to walk 100 metres.  She gave her answers frankly and without embellishment.  What was clear was that the applicant has made efforts towards her own rehabilitation since 2001 by undertaking exercise as she became more able to do so, and by exploring various treatments.   She did not exaggerate her symptoms.  Her treating medical practitioners supported the applicant’s evidence about her symptoms and the genuineness of her complaint.   The Tribunal was satisfied that the applicant is an honest and credible witness.

36.     In regard to the entry medical the applicant acknowledged that her answers, in the sense of them being incorrect, were false. However the Tribunal accepts her evidence that she raised the problem she had experienced with her legs in 1994 in discussions with the medical practitioner at the entry medical and was satisfied by those discussions.  The Tribunal took into account that there was no attempt to hide the 1994 episode of shin splints when she attended other medical practitioners.  In the context of having discussed what had the appearance of a minor injury occurring in 1994 and causing no problem for seven years with the medical examiner, the Tribunal accepts her evidence that she ticked the “No” box on the basis of her understanding that the 1994 incident was not a matter of importance.  The authorities, including Schofield and Comcare (1995) 38 ALD 124 and Iannella v French (1968) 119 CLR 84 make plain that the word wilful requires that the representation must be both false and made without any belief that it is true.  The Tribunal was satisfied that the element of wilfulness was lacking.

37.     Mr Clark made submissions that disease, as used in s7(7) of the Act, has the same meaning as the term defined in s4 of the Act.  In view of the Tribunal’s findings above it is not necessary to explore this issue, except to say that his submission was at odds with the decision of the Federal Court in Van Reesch v Health Insurance Commission & Comcare (unreported, FCA, 1 March 1996). As Wilcox J pointed out in his judgement, liability for an injury is not excluded by an earlier wilful and false representation.

38.     Turning to the question of permanence, Mr Clark submitted it was too early to say whether the recovery process was complete and said, relying on the last report of Dr Curtis and the two reports of Dr Bartlett, that the applicant’s condition may improve.  He referred to the improvement that had occurred between three and five months after the surgery.  He also submitted that the knee condition had to be taken into account. He said that because the knee condition contributes it could not be said that her leg injury results in a permanent impairment. . 

39.     On the question of permanent impairment, Mr Hume submitted that, five months post surgery, it was possible to say that the condition was stable and that the evidence of Dr Curtis that the applicant had a 20% per cent impairment should be accepted.  He said that the applicant’s evidence lent support to the view that her condition had stabilised.  He submitted that while there was no explanation for the knee pain, Dr Curtis’ evidence was clear that the pain limiting her when ascending stairs and walking, requiring her to rest, was shin pain rather than knee pain.

40.     The Tribunal must first be satisfied that the condition is permanent taking into account the matters in s24(2).  The statutory test requires that the Tribunal be satisfied that the condition is likely to continue indefinitely.  Applying the test of permanence as set out in McDonald v Director-General of Social Security (1984) 6 ALD 6, and discussed in Re O’Maley and Comcare (1997) 48 ALD 300 it is not necessary to have a settled expectation of permanence, merely that indefinite duration is more likely than foreseeable termination. Considering all the factors as set out in s24(2), the applicant in this case has undertaken all reasonable rehabilitative treatment and has experienced considerable improvement in symptoms. The applicant's evidence, which the Tribunal accepts, was that her condition has improved since the surgery and that she has been able to extend her walking times. She can now run short distances. The Tribunal accepts that she is curtailed in the work she can do as a policewoman and is prevented from undertaking recreational pursuits that she once enjoyed. The Tribunal also took into account her evidence that she ascends and descends two flights of stairs about twice a day even though there is a lift in the building.

41.     The evidence of Dr Curtis and Dr Bartlett confirmed the applicant’s evidence about her improvement in symptoms after the surgery.  The Tribunal accepts Dr Curtis’ evidence that that there remains a chance of improvement up to six months after surgery but that the bulk of recovery occurs by three months.  After the surgery the applicant undertook rehabilitative treatment including physiotherapy. The Tribunal was reasonably satisfied that the condition was permanent within the meaning of s24 of the Act by the time of the hearing in August 2004.

42.     In considering the question of assessment under the Guide, the Tribunal notes that Dr Bartlett, who performed the surgery, has had the opportunity to observe the applicant more recently than any other doctor. Dr Bartlett considered that the applicant suffered ten per cent impairment under Table 9.5.  Given that the surgery occurred in March less than five months ago, his report is the most valuable as it allows observation of the applicant for the longest period of recovery time after the surgery.  The applicant’s evidence was consistent with an improved level of ability with walking and with extended exercise tolerance. 

43.     The Tribunal did not accept the report of Dr Fairbairn (exhibit R4) that the applicant should be assessed as NIL under Table 9.5.  Dr Fairbairn accepted that the applicant had pain related to the stress fracture and tibial periostitis (exhibit R1), and he referred her to Dr Young for pressure testing to ascertain whether she had compartment syndrome.  Dr Fairbairn agreed with Dr Curtis, Dr Young, and Dr Bartlett that the success rate for the surgery was 70%.  Given that Dr Fairbairn did not dispute that the applicant had established underlying conditions consistent with demonstrated symptoms of pain and that he agreed that there is a cohort of 30% who might not achieve complete recovery as a result of the surgery, his conclusions that her described symptoms should have settled (exhibit R4) are without foundation in fact.   Dr Fairbairn did not objectively test the applicant on grades and stairs or walking so he did not have the information that Dr Curtis and Dr Bartlett had in order to assess under the Guide.

44.     The Tribunal preferred the conclusion of Dr Bartlett that the applicant rates an assessment at 10% under Table 9.5 to the conclusion of Dr Curtis that the applicant should be assessed at 20%.  Dr Curtis did not see the applicant as recently as Dr Bartlett and Dr Curtis’ conclusion did not appear to take into account the substantial improvement that he said the applicant had achieved as a result of the surgery.

45.     The Tribunal noted the evidence that the applicant’s described symptoms of knee pain may make some contribution to her experienced limitations, but was satisfied that Dr Curtis and Dr Bartlett, as experienced orthopaedic surgeons, were able to assess her limitation arising from leg pain.  Taking into account the whole of the evidence, including the applicant’s descriptions of her limitations and the objective testing carried out by Dr Curtis and Dr Bartlett, the Tribunal finds that the applicant's condition meets the description of an impairment of 10% under Table 9.5.  The Tribunal finds that the respondent is liable to pay compensation in respect of a whole person impairment of 10% under Table 9.5 of the Guide and remits the matter of assessment under s24 and s27 of the Act to the respondent accordingly.

DECISION

46.      The Tribunal sets aside the reviewable decision dated 25 November 2002 and remits the matter to the respondent to determine the amounts payable under s24 and s27 of the Safety, Rehabilitation and Compensation Act1988 (the Act), in accordance with the finding that the applicant has a whole person impairment of 10% assessed under Table 9.5 of the Guide to the assessment of the degree of permanent impairment.

47.     The Tribunal orders that the applicant’s costs be paid in accordance with s67 of the Act.

I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Ms MJ Carstairs, Member

Signed:         Denise Burton
  Administrative Assistant

Date/s of Hearing  3 and 4 August 2004
Date of Decision  9 August 2004
Written Reasons  27 August 2004
Counsel for the Applicant         Mr R Hume         
Solicitor for the Applicant          Stockley Furlong
Counsel for the Respondent     Mr C Clark           
Solicitor for the Respondent     Phillips Fox