Zensea and Military Rehabilitation and Compensation Commission

[2007] AATA 2049

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2049

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/1230

GENERAL ADMINISTRATIVE DIVISION		)
Re		DAVID ZENSEA

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Senior Member, Mrs Josephine Kelly
Member, Dr Ion Alexander

Date13 December 2007

PlaceSydney

Decision The decision under review is affirmed.

......................[sgd]........................

Presiding Member, Mrs Josephine Kelly

CATCHWORDS

COMPENSATION – whether whole person impairment of 10% or more under Tables 9.2 and 9.5 - applicant member of army reserve – physical training on uneven ground during combat service – injury - left ankle ligament tear resulting in instability – underwent reconstruction – respondent accepted liability accepted under s 14 – whether 10% permanent impairment under Table 9.5 – evidence of applicant’s doctor not persuasive – reviewable decision affirmed

Safety, Rehabilitation and Compensation Act 1988 ss 14, 24, 27

Whittaker v Comcare (1998) 86 FCR 532

REASONS FOR DECISION

13 December 2007	Senior Member, Mrs Josephine Kelly
Member, Dr Ion Alexander

SUMMARY

1.      Mr David Zensea served in the Army Reserve from 1995 until he was discharged on 15 October 2006.  As he now lives in London, we heard his evidence by telephone.  He seeks the review of the decision made by the Military Rehabilitation and Compensation Commission on  12 September 2006  rejecting his claim for permanent impairment of “left ankle ligament tear resulting in instability” pursuant to ss 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 (“the Act”). 

2. Mr Zensea underwent a reconstruction of his left ankle on 14 October 2004. Liability pursuant to s 14 of the Act was accepted for the left ankle ligament tear resulting in instability on 28 April 2006.

3. The only issue in these proceedings is whether there is a degree of permanent impairment with respect to his left ankle of 10% or more, so that he is entitled to compensation (s 24(7) and s 27 of the Act).

4.      Mr Zensea also suffers a lower back condition, and following injuries to his right ankle, he had an arthroscopy and debridement of the right ankle on 16 June 2006, followed by post-operative rehabilitation, including physiotherapy.

THE CASE FOR MR ZENSEA    

5.      Mr Zensea’s evidence, as contained in his statement dated 5 December 2006, was as follows. 

6.      He attributed his ankle condition to physical training on uneven ground in combat boots during his service.  He rolled his ankle on a number of occasions until three ligaments snapped.  

7.      He used to be extremely active, playing AFL, soccer, squash, tennis and going running most days.  Exercise has been his release.  At the time he signed his statement he was unable to participate in any sport and could only work on low-resistance exercises for a short period at the gymnasium. He is restricted because of actual swelling and pain and fear of rolling his ankle.  He cannot walk diagonally across slopes, because of a fear of rolling his left ankle, and he is not comfortable walking down steep slopes for the same reason.  He has no great issues with walking distances but he cannot run with or without a brace for longer than 10-15 minutes due to swelling and pain.   If he walks down stairs, he always hangs on the railing for fear of stumbling. 

8.      Since being in London he has stumbled a number of times, particularly during rush hour.  Stairs and stalled escalators can be hazardous to him.   He is very uncomfortable and will not walk on uneven ground because even since the operation he has rolled his ankle.  He has had no treatment since his discharge, except for ice-packs when his ankle swells. He had no problem with household duties.

9.      Mr Zensea gave the following additional oral evidence.  He stumbled two or three times a month.  The events varied in severity.  He had rolled his ankle three or four weeks before the hearing and is "now pretty serious".  His foot gave way as he was holding a handrail.  He could not move for 20 minutes and was in pain for a week.

10.     When walking diagonally across slopes he cannot judge where to put his foot down because he had lost "receptors" in his ankle. He has to really concentrate and considers that such activity increases his chance of rolling his ankle.  When walking up or down steep slopes "it hurts having to lean forward or back". The pain is getting worse.  He always has a dull ache in his ankle and more pain going up and down stairs than any other activity.  The more he walks the more he gets a sharp pain.  His ankle is permanently swollen.   His pace is slower than it used to be.    He stays away from uneven ground because he cannot really walk on it.  Walking on rocks requires quick movement which his ankle cannot do.   He does not run, but jogs in a gym on a machine which he said was recommended by a physiotherapist as it does not affect his ankles.  He wears a brace.  He moves his thighs and arms.

11.     Dr Barold provided a report and gave evidence orally.   He examined Mr Zensea in August 2006.  He provided opinions about Mr Zensea's lower back condition, and both ankles.  He assessed whole person impairment in respect of the left ankle of 5% according to Table 9.2 and 10% according to Table 9.5 of the  Comcare Guide to the Assessment of the Degree of Permanent Impairment.

12.     Where both Tables 9.2 and 9.5 are applicable, we must assess the degree of permanent impairment under the one which yields the most favourable result to the employee (Whittaker v Comcare (1998) 86 FCR 532).. Accordingly, the case for Mr Zensea was put on the basis that we should accept Dr Barold's assessment of 10% under Table 9.5.

CONSIDERATION

13.     It is useful to look at contemporaneous records that refer to Mr Zensea's ankles. Apparently, Mr Zensea used the family name of Phelps while serving in the Army.   An entry in his service medical record dated 2 May 2005 recorded "prev L ankle recon no probs".   Another such record dated 12 May 2005 stated: 

“6/12 since Reconstruction lat ligt L ankle.  Good result.  No pain. Stable. Running. Playing indoor soccerSome discomfort in extreme position esp. after running more than 1 hr. should settle. ”

14.     Mr Zensea signed an "Injury or Disease Details Sheet" dated 4 December 2005 in respect of his "left ankle damage".  The signs and symptoms were stated to be "ankle, pain, ankle swelling, restricted mobility".

15.     Dr O'Sullivan, orthopaedic foot and ankle surgeon, saw Mr Zensea about his right ankle in April 2006 and wrote in his report dated 13 April 2006: 

… David Phelps, … who as you know has had his left ankle reconstructed some two years ago with good result.

He has been having problems with his right ankle with instability at times but pain when running.  He has avoided impact sports because of his right ankle discomfort.  He feels that his right ankle is travelling the same way as his left, which then required reconstruction.

His left ankle is not 100% either but at the moment his right ankle is the main priority.…

Clinically he walks with a normal gait, can walk on toes and can hop strongly on both feet. His right ankle demonstrates a full range of motion with some minor tenderness over the antero-lateral aspect of the ankle but a negative anterior draw.  His peroneal tendons are weak.  His left ankle, which is reconstructed, does have a positive anterior draw.  He has come with MRI scans of both ankles and these show that on the left hand side he has osteochondral scuffing of the lateral talar dome….

As it (the right ankle) mechanically feels stable, hopefully just arthroscopic debridement and post-op. physiotherapy will stabilise his ankle and allow him to pursue his sports.

16.     An orthopaedic registrar filled out Part B of the “Compensation Claim for Permanent Impairment” form on 23 May 2006, and wrote:

"Diagnosis of current condition:  As per specialist Report J. O'Sullivan ligamentous instability of LEFT ankle despite reconstruction.  Osteochondral damage to talus as per MRI."

17.     The resulting impairment was described as "Unstable ankle early OA", which we understand to be the abbreviation for osteoarthritis.  The "extent of the impairment including the extent of any loss of range of movement" was described as "Giving way of ankle on uneven surfaces.  Greater ROM due to instability".

18.     A "PS" at the bottom of the form stated:

"A full & detailed report would be obtainable from Dr J. O'Sullivan, Foot + ankle surgeon who is seeing David re his R ankle.

19.     Mr Zensea filled out a "Non-Economic Loss Questionnaire" dated 30 May 2006 in relation to his left ankle.  He stated:

"Everytime I run, I get serious pain in my ankles after about 20 minutes.  My ankles continually roll leading to pain and swelling.

"Since fitness is such a huge part of my life, if I cannot exercise by running or sport, I quickly become despondant, upset, short tempered and apathetic.  If my injuries prevent me from running now or in the future it will have a profound effect on my mental wellbeing. ..

"When my ankle is rolled I am essentially bedridden and require frequent assistance.  The rolling of both ankles is frequent (once in a month). …

"My ankle injuries severely disrupt my recreational enjoyment as fitness and in particular running is my main pastime [sic].”

20.     By way of additional comment, Mr Zensea wrote:  "Increased chance of future injury, due to increasing instability".

21.     Dr Hilford examined Mr Zensea for medical assessment on 30 May 2006 and wrote a report dated 7 June 2006. He also gave oral evidence.  Dr Hilford was assessing Mr Zensea's back and left ankle at the request of the Respondent. 

22.     Dr Hilford recorded decreased active and passive movement of the left ankle joint "in that dorsiflexion was restricted to 10 degrees (normal range 20 degrees), whilst plantar flexion was to 30 degrees (normal range 40 degrees).  There was mild residual instability of the left ankle joint, and a positive anterior drawer upon clinical testing".  Dr Hilford concluded that there was "a loss of less than half the normal range of movement of the left ankle joint … and no evidence, objective difficulty with grades, steps and/or distances, attributable to the left ankle condition".  Dr Hilford set out the testing done for that assessment.He found 5% whole person impairment according to Table 9.2 and 0% impairment according to 9.5.

23.     A right ankle arthroscopy and debridement was carried out on 16 June 2006.

24.     Dr Barold saw Mr Zensea on 21 August 2006 and wrote a report dated 25 August 2006.  He examined and assessed Mr Zensea's back, and right and left ankles.   He recorded  present complaints to include:

“Constant right ankle pain, right ankle swelling following exercise, numbness over the dorsum of the 4^th right toe, occasional giving way of the right ankle, numbness over the right ankle operative scars, periodic left ankle pain, swelling of the left ankle after exercise, numbness over the left ankle operative scare, reduced walking tolerance to less than 1 km, having previously been a fit individual who was capable of 5-10 km hikes, need to use handrails when ascending and descending stairs, difficulty walking up inclines.”

25.     Dr Barold  made the following comments on the left ankle:

“It has been almost two years since the left ankle reconstruction and, although this appears to have been, in the main, successful, Mr Zensea has experienced one episode of the ankle giving way which does not augur well for his long-term prognosis and this would indicate ongoing left ankle weakness despite the repair".

26.     Dr Barold found 5% whole person impairment under Table 9.2 (loss of less than half of normal range of ankle movement) and 10% under Table 9.5.  In relation to the latter table, Dr Barold wrote: 

”Mr Zensea was observed being able to rise to a standing position and walk but having difficulty with steps, with him being observed as needing to use a handrail when both ascending and descending stairs.”

27.     Dr Barold observed Mr Zensea to walk with a normal gait in the street.  Mr Zensea did not display an altered or antalgic gait walking up and down a grade.  Dr Barold noted: "He did however gradually develop a slower walking pace then myself with distance up a slope."

28.     In summary, the only observations Dr Barold made relevant to an assessment under Table 9.5 were that Mr Zensea "needing to use a handrail" when ascending and descending stairs and that Mr Zensea walked more slowly up a slope than did Dr Barold.

29.     We are not persuaded by Dr Barold's evidence.  His report is internally inconsistent.  He states at one point that the right ankle could not be considered to have stabilised only two months after arthroscopic debridement, that is, at the time he saw Mr Zensea, and that stabilisation would only be expected to occur some six months or so after the procedure.           Later, he expresses the quite inconsistent opinion that it has stabilised and proceeds to provide an impairment rating of 10% under Table 3.2.1 of the Guide (5^th Edition) (which is not the guide with which we are concerned).  

30.     Importantly, he also gives a rating for function loss for the right ankle under Table 3.2.2 of that guide and refers to "constant difficulty up and down steps (needing the use of handrails) as well as walking on uneven ground and up slopes".  We will return to this finding later.

31.     Notably Dr Barold did not find anterior draw of the left ankle on examination.  Dr O'Sullivan and Dr Hilford had.  When he heard of this finding, he embraced it to support his case.   However, his failure to find it on examination reinforces our view that his examination of the ankle was not consistent with standard medical practice.  We found his explanation of why he used a "neutral position" of 35 degrees as a starting point rather than 90 degrees incomprehensible.  His explanation about comparing the right and left ankles, apparently assuming the right was more normal than the left, only two months after surgery and when Mr Zensea was complaining about greater difficulties with it than the left ankle, was not persuasive.

32.     He could not reconcile the findings in his report that there was a loss of less than half range of movement in the left ankle with his assertion that there was instability in that ankle.  During oral evidence he supported the latter statement by saying that there was a greater loss of range of movement  than in the right ankle.   He then said that he had misapplied Table 9.2.

33.     Mr Perry, counsel who appeared for Mr Zensea, recognised that there were problems with Mr Barold's evidence.  Mr Perry, tried to get Dr Barold to explain how he could determine the particular difficulty Mr Zensea suffered when walking up and down stairs attributable to his left and right ankles separately.   We did not find Dr Barold's explanation convincing.  In his report, he made no reference to observing "difficulties" in the ankles when Mr Zensea walked up and down stairs, which he talked about during his oral evidence.

34.     Dr Barold also misapplied Table 9.5. The criterion is that he can rise to standing position and walk but has difficulty with grades and steps.  The assessment Dr Barold made in his report, set out earlier in this decision, did not take into account grades.   Mr Perry tried to overcome this inadequacy, however we were not persuaded by the explanation which we understood was that Mr Zensea walked more slowly up a slope than did Dr Barold.

35.     Mr Perry also asked Dr Barold to assume that Mr Zensea's ankle gives way once or twice a month and the doctor then said that Mr Zensea has difficulty walking on uneven ground:

"That's in my notes and he's got the background, the past background of ongoing weakness and instability in the ankle and he needs ankle supports with activity".

36.     Dr Barold conceded, when questioned by the Tribunal, that he saw no specific evidence of instability in the left ankle when he saw Mr Zensea.  Rather he concluded that there was instability on the basis of the "background history" and the:

"particular degree of symptoms that he described as ongoing complaints as well as observing him with particular reference to grades and steps".

37.     Dr Barold conceded that he had had no specific training in orthopaedic injuries to ankles.

38.     We prefer the evidence of Dr Hilford. We accept that he has had substantial experience with ankle injuries.  We did not accept Mr Perry's criticism that Dr Hilford was acting as an advocate.  We found Dr Hilford's evidence cogent and persuasive.  It was consistent with the findings made by  Dr O'Sullivan.

39.      The report of the Orthopaedic Registrar does not assist us.  We do not know to what extent if at all, he examined Mr Zensea, and we infer that he was relying principally on Dr O'Sullivan's report.  He made no assessment under the Tables.

40.     Finally, we should address Mr Zensea's evidence.  We found his evidence to be inconsistent, somewhat exaggerated and unreliable.  For example, we understood him to say that Dr O'Sullivan had told him that there had not been a good result from the surgery to the left ankle.  In fact Dr O'Sullivan's report stated that there was a good result, although it was not 100%.  Mr Zensea's written evidence referred to pain and swelling in the left ankle and fear of it rolling or giving way.  He only mentioned one occasion when it gave way to Dr Barold.  During his oral evidence, Mr Zensea said that he cannot run, but does run or jog on a machine at the gymnasium but that "you're really moving your thighs and arms".   In our view walking or running necessarily involves the ankle.  The descriptions of difficulty he has on uneven ground were unconvincing.   

41. We do accept that Mr Zensea has some ongoing difficulties with his left ankle. As we accept Dr Hilford's evidence, we find that Mr Zensea has 5% whole person impairment according to Table 9.2 because he has loss of less than half the range of movement in his left ankle. He has 0% impairment under Table 9.5. Mr Zensea is therefore not entitled to compensation under ss 24 and 27 of the Act.

CONCLUSION

42.     For the above reasons we affirm the decision under review.

I certify that the preceding 42 paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine Kelly and Member, Dr Ion Alexander.

…………[sgd]…………………..

Signed: Steven Mulipola

Associate

Date of decision:                 13 December 2007

Date of hearing:                  30 August 2007

Counsel for Applicant:       Mr M Perry

Solicitor for Applicant:        D’Arcy’s Solicitors

Counsel for Respondent:   Mr B Kelly

Solicitor for Respondent:    DLA Phillips Fox