Lutter and Comcare [2000] AATA 2 (7 January 2000)

Last Updated: 4 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 2

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A99/58

General Administrative DIVISION )

Re WAYNE JOHN LUTTER

Applicant

And DEPARTMENT OF DEFENCE FOR COMCARE

Respondent

DECISION

Tribunal Mr Peter Bayne, Senior Member

Date 7 January 2000

Place Canberra

Decision The Tribunal affirms the decisions under review.

..............................................

CATCHWORDS

COMPENSATION - employee suffered injuries to knee and feet in compensable circumstances - whether permanent impairment compensation payable - Table 9.5 of approved Guide - whether degree of impairment at least 10%

Legislation

Safety Rehabilitation and Compensation Act 1988 s 24

Authorities

Re Curtis and Australian Postal Commission, 30 March 1995, AAT decision No 10098

A and B v Director of Family Services [1996] ACTSC 48

Jones v Dunkel (1959) 101 CLR 298

Re MacFarlane and Comcare [1998] AATA 680

Payne v Parker [1976] 1 NSWLR 191

Kennedy v Richter [1957] VR 515

Bushell v Repatriation Commission (1992) 175 CLR 408

Re Nikolovski and Comcare AAT, 27 March 1996, Decision No 10826

REASONS FOR DECISION

Mr Peter Bayne, Senior Member

1. This is an application to review two decisions of an Independent Review Officer ("the IRO") of the respondent, both made on 16 February 1999 (T 55 and T 56).

2. The applicant was born on 11 March 1955. He enlisted in the Royal Australian Air Force on 27 November 1979, and was discharged on 13 July 1997.

3. It is accepted that the applicant developed soreness in his feet attributable to his employment. The respondent accepted liability under the Safety Rehabilitation and Compensation Act 1988 ("the Act") from 1 April 1993 in respect of an injury described as "tibialis posterior syndrome with bilateral plantar fasciitis". On 2 September 1997 the applicant signed a Benefit Claim Form (T 25) to indicate that he wished to claim a lump sum for permanent impairment in respect of this condition, and on 9 September made such a claim (T 27).

4. In late February or March 1998, the applicant completed some parts of a document "Non-Economic Loss Questionnaire" (Ex A2). This he provided to the doctor (Dr Sangster) who on 20 March 1998 completed the relevant parts of a document "Permanent Impairment and Non-Economic Loss Questionnaire" (T 36).

5. On 14 May 1998, a delegate of the respondent informed the applicant that he, the delegate, had determined that the applicant was not eligible for a payment under sections 24 and 27 of the Act in respect of his feet condition (T 41). On 14 June, the applicant sought reconsideration of this determination (T 43). In what is referred to as IRO Decision No LUT0003-01, the IRO affirmed the primary decision (T 55).

6. It is also accepted that the applicant has an injury to his right knee that is attributable to his employment. The respondent accepted liability under the Act from 1 April 1993 in respect of an injury described as "a degenerative tear posterior horn of the right medial meniscus". On 2 September 1997 the applicant signed a Benefit Claim Form (T 24) to indicate that he wished to claim a lump sum for permanent impairment in respect of this condition, and on 9 September made such a claim (T 28).

7. In late February or March 1998, the applicant completed some parts of a document "Non-Economic Loss Questionnaire" (Ex A3). This he provided to the doctor (Dr Sangster) who on 20 March 1998 completed the relevant parts of a document "Permanent Impairment and Non-Economic Loss Questionnaire" (T 35).

8. On 14 May 1998, a delegate of the respondent informed the applicant that he, the delegate, had determined that the applicant was not eligible for a payment under sections 24 and 27 of the Act in respect of his knee condition (T 40). On 10 July, the applicant sought reconsideration of this determination (T 45). In what is referred to as IRO Decision No LUT0003-02, the IRO affirmed the primary decision (T 56).

9. At the hearing, the Tribunal had before it the documents ("T documents") lodged pursuant to section 37 of the AAT Act 1975, and three documentary exhibits. It should be noted that these Reasons were written without the benefit of access to a transcript of the hearing.

10. I refer to the reasons in Re Curtis and Australian Postal Commission, 30 March 1995, AAT decision No 10098. They are a valuable source of information and explanation concerning the operation of section 24 of the Act, and of the role of the Guide to the assessment of the degree of permanent impairment ("the Guide").

11. Issues of fact and law arise under section 27 of the Act only where compensation is payable under section 24.

12. There is no dispute that, in terms of subsection 24(1), the applicant has "an injury" that has resulted in "permanent impairment". The primary issue in this review is - what is the degree on this permanent impairment suffered by the applicant? This falls to be answered by reference to the Guide. This degree must be expressed as a percentage, and where that is less than 10%, "an amount of compensation is not payable to the employee under [section 24]" (section 24(7)).

13. It is accepted that the assessment must be made in terms of Table 9.5 of the Guide, and, more particularly, in terms of whether the applicant's injuries are such that he "can rise to standing position and walk BUT has difficulty with grades and steps". (I refer to "injuries" while noting that it may be necessary to distinguish between the injury to the feet and the injury to the knee. But this point is immaterial in this matter.) Given that he can walk, the precise issue is whether he "has difficulty with grades and steps". This requires, as the Guide notes, a "medical appraisal", albeit that the judgment is made by lay administrative decision-makers, and, in this instance at least, by a Tribunal comprised on a single lay person. Of course, attention will be paid to the medical opinions. But, as in any such matter, the weight those opinions will be accorded will vary according to the extent to which the findings and assumptions of the facts made by the medical person giving the opinion correspond to the view of the facts ultimately taken by the Tribunal.

14. In relation to the injury to the feet, the primary decision-maker relied upon the assessment made by Dr Sangster (T 36). In this respect, he found 0% whole person impairment in terms of Table 9.5 (see T documents at 85). There is very little to indicate why he did. In the Comments section to the form (T documents at 86), he noted that the applicant wore shoe inserts (orthotics) to prevent recurrence of pain, and that the degree of discomfort had lessened since 1993 because "he doesn't run often or for long", (that is, at 20 March 1998). The doctor may also have noted that in Exhibit A 2, the applicant said (at box 1.2) that "My level of activity has been significantly reduced due to the pain in my feet".

15. There is no medical evidence before me to query this assessment of 0% whole person impairment. In any event, the view I take of the evidence concerning the applicant's physical abilities (see below) is such that I find that the assessment made by Dr Sangster is the correct one to be made.

16. I therefore affirm IRO Decision No LUT0003-01.

17. In relation to the injury to the right knee, the primary decision-maker (T 40) relied upon the assessment made by Dr Sangster (T 35). In this respect, he found 0% whole person impairment, and again there is not much by way of explanation of why he did. In the Comments section to the form (T documents at 74), he noted the circumstances that gave rise to this knee injury. He then wrote, in what has been taken correctly I think, as a comment on the applicant's abilities on 20 March 1998: "He can run 2km xxxlking rather than walking". The word (if one may call it that) "xxxlking" appears to have been written as "walking" before the first three letters were crossed out. The fair rendering of this sentence is: "He can run 2km rather than walking". In addition, Dr Sangster has written: "He has no problem with steps/stairs". I have also borne in mind that in relation to his assessment of the applicant's feet, Dr Sangster had noted: "he doesn't run often or for long", (that is, at 20 March 1998) (see para 14 above).

18. The applicant denies that he gave information to Dr Sangster that would have justified the doctor in recording these statements about his (the applicant's) physical abilities. Dr Sangster was not called as a witness, and there is no evidence as to any notes he may have made when he spoke to the applicant on 20 March 1998.

19. It is not at all unusual, and this matter presents several instances, for the Tribunal to be faced with a situation in which Comcare, or a body such as this respondent, rely on admissions made by an employee to a doctor concerning the employee's physical abilities and such like. Most often, those admissions are recorded in a report made by the doctor. Where the doctor gives oral evidence, he or she may be cross-examined in order to test the accuracy and reliability of what has been recorded, or to clarify any vagueness and ambiguity in what may have been recorded. Where the doctor does not give oral evidence, the employee does not have this opportunity. In this latter situation, the Tribunal must be careful not to assume that the doctor's record must be correct, and discount the employee's account of what he or she said to the doctor; (see generally, A and B v Director of Family Services [1996] ACTSC 48, per made by the person.

20. In this matter, an assessment of whether Dr Sangster did correctly record what the applicant had said on 20 March 1998 is assisted by the applicant's statements about his physical abilities at that time as recorded by him in Exhibit A 3. In addition, those statements are of course, admissions in themselves.

21. Before turning to Exhibit A 3, it is to be noted that Dr Sangster recorded other statements that are presumably attributable to the applicant. He noted (T documents at 79) that "Pain [in the right knee] (was) always present, worsened by turning, forceful walking often present first thing in the morning - never disturbs sleep physiotherapy has not helped". It is also noted that the applicant "is restricted in his activities (refereeing of football matches)". It is noted that the applicant "walks rather than runs can't play football, do refereeing of football match". At T documents at 80, it is noted again that "No problems with steps/stairs".

22. Turning to Exhibit A 3, there are a number of statements made the applicant that bear on the level of his physical abilities at that time - being in February/March 1998. At box 1.2 - "Level of pain is continuous & I am unable to run without aggravating the pain & have been forced to reduce the frequency and duration of physical exercise". At box 2.2 - "I am no longer able to maintain extended periods of physical activities such as, shopping without severe pain. I have been forced to reduce my sporting participation by in excess of 60% both in time spent and level of activity". At box 2.6 - "Whereas previously I was able to play touch & referee rugby league & go for long distance runs at lunchtime regularly, I am now unable to do no more than short runs or if the pain is too much short walks or nothing".

23. As noted, the applicant denied that he had given Dr Sangster information that would have justified the latter recording in respect of him, the applicant, the statements: "He can run 2km rather than walking", and "He has no problem with steps/stairs". The applicant was not entirely consistent in what he said about just what his abilities with respect to running were in early 1998. When pressed on the reference to "short runs" in box 2.6 of Exhibit A 3, the applicant would accept runs of only some 500 metres. He also said that at this time, he had basically stopped running. But he rejected Dr Sangster's version.

24. The level of the applicant's ability to run, or even to walk long distances, is significant for a number of reasons.

25. First, it is relevant to assessing the weight to be attached to Dr Dewey's report. Dr Dewey (T documents at 116) records, presumably on the basis of what he was told by the applicant, that "[The applicant] is able to run, but he is unable to sustain a running action for more than thirty or forty paces without experiencing significant pain. He stated that he is unable to sustain a squat and that he experiences soreness when negotiating steps and stairs". The applicant saw Dr Dewey on 15 December 1998. But the applicant's evidence was that the condition of his knee had not changed since 1997. If there is evidence that the applicant could in 1997 and 1998 run for longer than "thirty or forty paces without experiencing significant pain", that casts doubt on the value of Dr Dewey's report.

26. Secondly, although one must take care in overstating this, discrepancies of this kind call into question the credibility of the applicant - that is, as a person whose accounts of events may be accepted to be reliable.

27. Thirdly, while the issue here, in terms of Table 9.5, is whether the applicant has "difficulty with grades and steps", his ability to run is directly relevant to that issue. The motion of climbing stairs, or walking up grades, is similar to the motion of running.

28. Were I to simply compare Dr Sangster's record against the applicant's statements in Exhibit A3 and his oral evidence, I would hesitate to conclude that the applicant had told the doctor that he, the applicant, could run 2 kilometres. I would give weight to the fact that the applicant gave evidence on oath and was cross-examined. But I do not have to make this judgment about the applicant's ability to run in the period since 1997 simply on the basis if what Dr Sangster recorded. There are other contemporaneous indications of the applicant's physical abilities in 1997 and after.

29. There are two reports of an orthopaedic surgeon, Dr Michael Gillespie. In March 1996, he performed an arthroscopy in the applicant's right knee. He reviewed the applicant on 30 April 1996, and noted in a report (T 10) that "[The applicant's] knee is still a little sore when he runs but is in all other respects recovering well... I expect the ability to run will gradually return over the next four to six weeks". The doctor next saw the applicant on 15 April 1997, apparently as a result of the applicant having some 3 weeks prior, and "while ... out running", "developed a lot of pain on the medial joint line of his right knee ..." (T 12). But on 15 April, the doctor records that "he told me that his knee was feeling much better, and that he had managed to return to refereeing and had in fact done quite a few games on the weekend. His knee appears to have settled down so there is no indication at the moment for investigating further".

30. The applicant did not accept that he had given information to Dr Gillespie that would have warranted these observations. In evidence, he said that he had walked slowly for 3 to 4 weeks after the operation, and had failed when he tried to run. (Although at another point, I took the applicant to have accepted what Dr Gillespie said in April 1996.) He rejected the accuracy of the comments in the April 1997 report, and maintained that he told the doctor he had found it difficult to get through the rugby games. (But that evidence creates a problem, for it indicates that the applicant was refereeing and getting through the games.)

31. It was submitted, in effect, that statements of facts, or of the inferences that might be drawn from such statements, in the reports of Dr Gillespie, are more easily found, or drawn, given the applicant's failure to adduce evidence from the doctor; see Jones v Dunkel (1959) 101 CLR 298, and Re MacFarlane and Comcare [1998] AATA 680, at para 52ff. This assumes that the doctor is in the camp of the applicant, and that his absence is unexplained; see Payne v Parker [1976] 1 NSWLR 191 at 201. Where the missing witness is a treating doctor of the party, these assumptions are often justifiable; see Kennedy v Richter [1957] VR 515. On the other hand, while Jones v Dunkel reasoning is a product of the adversarial mode of common law trials, Tribunal review is essentially inquisitorial; see Bushell v Repatriation Commission (1992) 175 CLR 408 at 425. There may be circumstances where the Tribunal may fail in its obligation to arrive at the correct or preferable decision in the case before it if it simply allows the evidence to remain in the state it is after the parties have adduced their proofs. In particular, if there is a "missing witness", then the Tribunal may be obliged to call that witness.

32. In the circumstances here, there is some justification in applying Jones v Dunkel reasoning. The missing witness is a treating doctor of the applicant, and his reports clearly created a difficulty for the applicant given the way his case is presented. I refer here to the applicant's claim that his condition has remained unchanged since 1997. I do not place great weight on the absence of the doctor from the witness box, but it is a matter to be taken into account when determining whether the applicant's physical capacities so far as running is concerned are greater than he claims them to be at relevant times. Adapting what was said by Sholl J in Kennedy v Richter [1957] VR 515 at 517, one might in this matter say that as a matter of common sense, the fact that Dr Gillespie is not called, and no other explanation is offered for his absence, warrants the inference that he could not, if called, contradict or qualify the statements in his reports in a way in which it would be helpful for the applicant to be able to contradict or qualify those statements.

33. There is also a report, of 6 January 1997, of a physiotherapist, one N C Priest, (T 11). It notes that the applicant was referred on 20 June 1996, and that the period of treatment was from 1 July to 1 August 1996. The applicant presented with a history of "Limping after running, steps, squats, just walking [half] hour". But the "final assessment" is recorded as "Run/walk NAD". The abbreviation NAD is accepted to men "no abnormality detected".

34. The applicant's evidence is that he did not say anything of this kind to the physiotherapist, and he was not informed of this opinion. At that time, he could not walk or run without abnormality.

35. Finally, there is at T documents page 28 a report of a fitness test relating to the applicant. The applicant recalled that this was conducted in 1997, and from a notation on the form, this would appear to be 3 June 1997. The form records that the applicant completed a 2.4 km walk or run in 12.42 minutes, and, further, that the maximum desired was 14 minutes.

36. The applicant was firm in denying that he completed the distance in 12.42 minutes, although he did not put an alternative time, other than to say that the relevant maximum desired was 30 minutes.

37. In the absence of evidence from the author of this report, it is not easy to resolve this apparent discrepancy. There is, however, a consistency between what is recorded in this report and what Dr Gillespie recorded some three months earlier in his report of April 1997. On balance, I find in this report evidence that in June 1997 the applicant had an ability to travel by foot over 2.4 km in 12.42 minutes. This is a fast time for a walker, and suggests some jogging was involved.

38. Taken together, the evidence just reviewed points to an ability of the applicant at various times from 1997 - in January 1997, April 1997, June 1997, and October 1998 - to run and walk to an extent that is significantly greater than the applicant's evidence at the hearing concerning his abilities in these respects from 1997 to date. The cumulation of this evidence, and the disparate sources from which it is drawn, gives it weight and is sufficient to overcome the inherent limitations of hearsay evidence.

39. Thus, I find that the applicant's ability to run and walk has been, since 1997, significantly greater than the applicant's evidence in these respects. This bears directly on the issues of fact to be decided, and indirectly on them by reason of the effect this finding has on the applicant's credibility.

40. This finding is also relevant to the weight I place on Dr Dewey's opinion stated in a medico-legal report of 22 December 1998 to the applicant's solicitors. Dr Dewey saw the applicant on 15 December.

41. Concerning the knee, I have noted that Dr Dewey (T documents at 116) records, presumably on the basis of what he was told by the applicant, that "[The applicant] is able to run, but he is unable to sustain a running action for more than thirty or forty paces without experiencing significant pain. He stated that he is unable to sustain a squat and that he experiences soreness when negotiating steps and stairs". On physical examination, he noted that the applicant "moved freely and was wearing thongs". "He was just able to squat, but he was unable to maintain this position". "The size and strength of his right knee were good, with a normal range of motion noted and no effusion or instability".

42. In his summary and assessment, and after noting the arthroscopy operation performed, he said that "after appropriate surgical treatment, his knee tends to be sore for a prolonged period and there is often permanent limitation with regard to sustained running and squatting and permanent difficulty in negotiating multiple steps and stairs".

43. In this report, Dr Dewey opined that the applicant suffered from "10% permanent disability of his right lower limb, at and above the knee". In a later report (Exhibit A 1), after his attention was directed to Table 9.5, he said that "I would consider that he suffers from 10% permanent disability of his right lower limb".

44. Counsel for the applicant sought to fix the degree of impairment according to Table 9.5 at between 10-20%. But this is not possible, and unless the degree reaches 20%, it must be fixed at 10%. Thus, the issue is, as I stated above, whether the applicant "has difficulty with grades and steps".

45. There is very little direct evidence in this respect. The applicant is clear that he does have difficulty, and Dr Dewey has made a judgment, based presumably on his knowledge of the after effects of an arthroscopy, that with a person such as the applicant, "there is often ... permanent difficulty in negotiating multiple steps and stairs". But against this judgment, one must balance the failure of the applicant to call Dr Gillespie, the expert who operated on the applicant, and who had twice reviewed that applicant's condition post-operation, at 3 and 15 months.

46. On the other hand, Dr Sangster twice recorded that the applicant had no difficulty with steps and stairs. I find, on balance, that these statements were based on what the applicant told Dr Sangster. The applicant's denials are discounted in view of the view I take of his credibility. That has been diminished by reason of my finding that the applicant's account of his physical abilities does not accord with what is apparent from the various reports reviewed above.

47. Also relevant to the applicant's ability to cope with steps and stairs is the evidence concerning his ability to walk and run. In this respect, for the reasons given above, I find that the picture in the mind of Dr Sangster - that the applicant could run for 2 km - is closer to the truth that that in the mind of Dr Dewey - that the applicant is unable to sustain a running action for more than thirty or forty paces without experiencing significant pain. I refer to what I said above concerning how running ability bears on the issue of fact about the applicant's ability to negotiate stairs.

48. This is a claim for compensation under section 24. There is no legal or evidential onus of proof on the applicant, but in the end I must be satisfied that the correct decision is to find that the applicant "has difficulty with grades and steps"; (see Re Nikolovski and Comcare AAT, 27 March 1996, Decision No 10826).

49. In making this judgment, I have had regard to what was said in Re Curtis and Australian Postal Commission, 30 March 1995, AAT decision No 10098 concerning how a decision-maker should approach the word "difficulty" in table 9.5.

50. For the reasons given, I am not satisfied that the applicant "has difficulty with grades and steps".

51. In the result, I affirm IRO Decision No LUT0003-02.

52. The appropriate decision is to affirm the decisions under review.

I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Peter Bayne, Senior Member

Signed: .....................................................................................

Associate

Date/s of Hearing 9 November 1999

Date of Decision 7 January 2000

Counsel for the Applicant Graeme Lunney

Solicitor for Applicant Higgins Solicitors

Counsel for the Respondent Max Wallace

Solicitor for the Respondent Blake Dawson Waldron