Ivory and Comcare [2003] AATA 98 (4 February 2003)

Last Updated: 4 February 2003

DECISION AND REASONS FOR DECISION [2003] AATA 98

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/482

GENERAL ADMINISTRATIVE DIVISION	)
	Re	LINDA IVORY

Applicant

And

COMCARE

Respondent

DECISION

Tribunal

Mr K L Beddoe, Senior Member Dr K P Kennedy, Member Mr I R Way, Member

Date 4 February 2003

Place Brisbane

Decision

The Tribunal affirms the decision under review.

...................(Sgd)......................

KL Beddoe

Senior Member

CATCHWORDS

WORKERS COMPENSATION - compensation for work-related injury - knee injury - permanent impairment - lump sum payment already made to applicant - whether applicant has suffered an increase in the level of impairment - whether degree of impairment should be assessed under Table 9.2 or Table 9.5 - whether applicant suffering from a 20% whole person permanent impairment

Safety Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

4 February 2003

Mr K L Beddoe, Senior Member Dr K P Kennedy, Member Mr I R Way, Member

1. This is an application for review of a Decision of a Delegate of the Commonwealth Department of Veterans' Affairs, Military Compensation and Rehabilitation Service, under the Safety Rehabilitation and Compensation Act 1988 (the Act), dated 6 April 2001, which affirmed a previous Determination dated 4 September 2000, that no further payment for compensation could be made under sections 24 and 27 of the Act.

2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37of the Administrative Appeals Tribunal Act 1975 (the T documents) and further documents tendered at the hearing and marked as exhibits. The applicant was represented by Mr Hume of Counsel and the respondent by Ms Ford of Counsel.

3. The applicant had sustained an injury to her right knee while in the Army in 1992 and subsequent to that injury there had been further episodes of trauma to the knee during service. In August 1998 the respondent had determined that the applicant was entitled to a 10% lump sum for permanent impairment. The applicant claims that there has been further deterioration since that time and that she is now entitled to compensation based on 20% impairment level.

RELEVANT LEGISLATION

4. Compensation for injuries that have resulted in permanent impairment is paid in accordance with Part II of the Act. Relevantly, the Act provides as follows:

"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.

...

(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.

...

25 Interim payments of compensation

...

(4) Where Comcare has made a final assessment of the degree of permanent impairment of an employee (other than a hearing loss), no further amounts of compensation shall be payable to the employee in respect of a subsequent increase in the degree of impairment, unless the increase is 10% or more.

...

27 Compensation 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. ..."

5. Sub-section 24(5) of the Act provides that the degree of permanent impairment is to be determined under the provisions of the Guide to the Assessment of the Degree of Permanent Impairment as prepared by Comcare pursuant to sub-section 28(1) of the Act. Relevant extracts from the Principles of Assessment in the Guide read:

"PRINCIPLES OF ASSESSMENT

Impairment and Non-Economic Loss

Impairment means ´the loss, loss of use, damage or malfunction, of any part of the body, bodily system or function or part of such system or function'. It relates to the health status of an individual and includes anatomical loss, anatomical abnormality, physiological abnormality and psychological abnormality. Throughout this guide emphasis is given to loss of function as a basis of assessment of impairment and as far as possible objective criteria have been used.

Impairment is measured against its effect on personal efficiency in the `activities of daily living' in comparison with a normal healthy person. The measure of ´activities of daily living' is a measure of primary biological and psychosocial function such as standing, moving, feeding and self care.

Non-economic loss, which is assessed in accordance with Part B of the Guide, is a subjective concept of the effects of the impairment on the employee's life. It includes pain and suffering, loss of amenities of life, loss of expectation of life and any other real inconveniences caused by the impairment.

Whilst ´activities of daily living' are used to assess impairment they should not be confused with ´lifestyle effects' which are used to assess non-economic loss. ´Lifestyle effects' are a measure of an individual's mobility and enjoyment of, and participation in, recreation, leisure activities and social relationships. It is emphasised that the employee must be aware of the losses suffered. While employees may have equal ratings of impairment it would not be unusual for them to receive different ratings for non-economic loss because of their different lifestyles.

The Impairment Tables

Part A of the Guide is based on the concept of ´whole person impairment' which is drawn from the American Medical Association's Guides.

Evaluation of a whole person impairment is a medical appraisal of the nature and extent of the effect of an injury or disease on a person's functional capacity and activities of daily living.

As with the American Medical Association's Guides, Part A of this guide is structured by assembling detailed descriptions of impairments into groups according to body system and expressing the extent of each impairment as a percentage value of the functional capacity of a normal healthy person. Thus a percentage value can be assigned to an employee's impairment by reference to the relevant description in this guide."

6. Part A of the Guide comprises groups of tables describing levels of impairment in particular parts of the body. For each level, an impairment value, expressed as a percentage of whole person impairment, is listed. The relevant components of the Guide in this matter are those which relate to the musculo-skeletal system. These are Tables 9.1 to 9.6. The only Tables of potential relevance in this matter are Table 9.2 and Table 9.5 which read:

"TABLE 9.2

Lower Extremity

(Percentage Whole Person Impairment)

Assessment is in accordance with the range of joint movement. X-rays should not be taken solely for assessment purposes.

% DESCRIPTION OF LEVEL OF IMPAIRMENT

0 X-ray changes but no loss of function of hip, knee or ankle or

Ankylosis or lesser changes in any toes except the first hallux

5 Loss of less than half normal range of movement of ankle

10 Any ONE of the following:

loss of less than half normal range of movement of hip or knee

loss of half normal range of movement of ankle

ankylosis of first hallux

15 Loss of more than half normal range of movement of ankle

20 Any one of the following:

loss of half normal range of movement of hip or knee

ankylosis of ankle

30 Loss of more than half normal range of movement of hip or knee

40 Ankylosis of hip or knee

NOTES:

1. Where a joint has been surgically replaced assessment is in accordance with its function.

2. Shortening of the lower extremity by 2.5cm or more is an impairment of 5%.

3. For conditions not covered (such as flail joints) the assessment should have regard to the loss of function (not exceeding the maximum allowed for amputation).

4. Values are for one joint only. Where more than one joint is affected, values should be combined using the Combined Values Table (Table 14.1).

TABLE 9.5

Limb Function - Lower Limb

(Percentage Whole Person Impairment)

% DESCRIPTION OF LEVEL OF IMPAIRMENT

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

30 Can rise to standing position and walk with difficulty but is limited to level surfaces

50 Can rise to standing position and maintain it with difficulty but cannot walk

65 Cannot stand or walk".

7. The issue for the Tribunal is whether there has been an increase of 10 percentage points in the degree of permanent whole person impairment in the applicant.

EVIDENCE OF APPLICANT

8. The applicant said that she was a motor mechanic by trade. She had joined the Army in 1988 at the age of sixteen years and had commenced her apprenticeship as a mechanic at that time. In 1992, when at Bulimba, she had first injured her knee. She was walking up a ramp when her knee gave way. She experienced immediate pain but did not seek medical help until a few days later when it was obvious that the pain was not settling. She was referred to Dr McKenzie, an orthopaedic surgeon who performed an arthroscopy and a lateral release on her knee. With rest and physiotherapy she made a good recovery at that time.

9. In February 1993, when on an army exercise at Shoalwater Bay, she fell into a gun-pit and landed on her right knee. The pain recurred and the leg was swollen. In February 1994 she had a second operation on her knee, a procedure known as a VMO advancement. After a lengthy rehabilitation she returned to full duties and sport. In 1997 she was downgraded from FE to CZE and she stopped playing sports on medical advice but was told to still do the basic fitness assessments which were conducted twice yearly and included a 2.4km run and sit ups and push ups.

10. After the second fitness run in 1999 she was in extreme pain. Following subsequent review by another orthopaedic surgeon, Dr Fairbairn, she had further surgery - a tibial tubercle shift. Again rehabilitation was extensive and prolonged but she started a graduated return to work programme by May of that year. She did however work only in the office and did not return to her former duties. She was downgraded to medical class 4 and discharged from the service in July 2000.

11. At that stage, the applicant said that she was limited then much to the same extent as now. She had difficulty walking up the front steps, difficulty getting in and out of the car, accessing lower cupboards, cleaning the bath, walking the dog and just walking around. She was using some Brufen and some Panadol but preferred to rely more on the TENS machine and heat applications.

12. She had obtained her first civilian job about five months after leaving the Army. That position was that of workshop manager at Connolly Motors at Sandgate close to her home. She said that she was working on average eleven hour days at Connolly Motors and she left of her own accord after about five months because she did not like the working conditions.

13. Almost immediately she obtained a position with a forklift company at Oxley known as Adapt-A-Lift. She was being trained there to be a service manager. Although it was a wonderful job the downside was the 31km drive there and back from home. After about seven months she had to leave because of the effect of the long drive on her knees.

14. One month after leaving the Oxley job she obtained a position with a forklift company at Geebung close to her home. She works there as service co-ordinator and spare parts manager, looks after the technicians on the road and in the workshop and the customer base. She considers that position to be a good job with a great balance of sitting, standing and walking and she described the firm as a great place to work.

15. In relation to walking the applicant said that she walked her dog every couple of days. She and the dog normally walk around the block which she thought would probably be about 800 metres and take about fifteen minutes. She does not undertake any other regular walking. In the summer she also swims at the local Chermside pool where she might do fifteen or twenty laps. In reply to a question from her Counsel, she said the knee becomes very sore after the swimming.

16. She said that on a normal workday the knee starts to pain towards the end of the day. She believed that on a scale of ten the pain would be a six. The knee is also painful after she walks the dog around the block. She said that on one occasion she had walked the dog an extra block but she had never set out to walk any specific distance other than around the block with the dog.

17. At home she described how she had difficulty in walking up her front stairs and also difficulty in walking up the slope within her own yard. When walking she is not conscious of any limp although she said that her friends had commented on the limp.

18. During cross examination, the applicant confirmed that after the second lot of surgery she was assessed FE and that she had resumed running and sporting activities until advised by a doctor to cease those activities because of the risk of further injury to the knee. The applicant said that the doctor had warned her that if she persisted with the sporting activities she would be the one to feel sorry in ten to fifteen years time.

19. The applicant was referred to a medical note in 1996 about lumbar back pain. The applicant said that she occasionally experiences back pain. When asked whether the back pain restricts her activities the applicant replied "I'm not the type of person to have a lot of movements and activities. I'm not athletic at all. You know, I don't work out at the gym or go for vigorous walks or anything so, no".

20. She told Ms Ford that up until her discharge from the Army in July 2000 she had continued walking and swimming but agreed that she had been unable to participate in other sports at that time. She agreed that in the year 2000 she had told Dr Jackson that her walking tolerance was thirty minutes. At that time she would do a lap around Shaw Park but did not know the distance. She no longer does that walking because her knee is just dying a slow death.

21. It was put to the applicant that in earlier evidence she had said that her condition had not changed since her discharge from the Army. She replied that the knee had definitely got worse. During further cross examination, she was asked:

"Do you think that's related to the fact that you haven't been doing as much with it since the date of discharge? -- I'm not afforded the opportunity to carry out physical fitness activities like I was in the army. I work a very big day. I get up at 5. I'm not home till 5.30. By the time I get home, prepare dinner, look after my animals, there's no time for exercise. I can't possibly fit it in my day, unfortunately".

22. It was noted that when the applicant takes the dog for a walk she first has to walk down the slope from the house. She was asked if she ever started on flat ground and then walked just on flat ground. The applicant replied that she had walked about 300 metres on flat ground at Sandgate and her knee hurt. She said that she could have walked further if she had had to keep going.

23. The applicant was shown a note written by her orthopaedic surgeon, Dr Fairbairn, in July 1999. In that report Dr Fairbairn had written that she was walking two to three kilometres and cycling for fifteen to twenty minutes. In reply to Ms Ford, the applicant said that she could not recall if that was so. She agreed that if she were walking two to three kilometres in 1999 then she perhaps could walk that distance now but she had never tried.

24. She agreed that she does also have hip pain from time to time. She agreed that the hip symptoms were also a deterrent to exercise and that she was also concerned to keep her activity to a minimum so that her knee condition would not become worse. She agreed that she had lost fitness as a result of the reduction in activities. Her degree of activity had also been reduced because of her long working hours. In relation to her gait, she said that to her the gait was natural but others had commented that she had a limp. She agreed that it does not take any effort to walk in the way that she does and that it is just something natural.

MEDICAL EVIDENCE

25. The first medical witness was a specialist orthopaedic surgeon Dr Peter Sharwood who gave evidence by telephone. Dr Sharwood had examined the applicant in December 2000 and had provided a written report on 15 December 2000. He had not seen the applicant subsequent to that date.

26. During the course of his evidence in chief, Dr Sharwood said that when he examined the applicant in his rooms he noted her to be limping. The limp was observed over a distance of two to three metres. He could not recall the type of limp. He had tested her ability to walk up stairs by testing her on the two stairs that he uses. She did not adopt the normal method of walking up stairs but she stopped on the middle. In his written report, Dr Sharwood had stated that the applicant was limping all the time and that she could not walk up two stairs without difficulty. At the time that he saw her he had assessed her degree of impairment under Table 9.5 at 20%.

27. Dr Pentis also gave evidence by telephone. Dr Pentis had examined the applicant on 24 February 1998 and had prepared a written report on 26 February of that year. He noted in the history given at the time that the applicant could not run well on the right knee and that she had difficulty squatting, kneeling and negotiating stairs and with slopes and uneven ground. He noted some wasting of the quadriceps on the right side but during oral evidence he said that no actual measurement was made. There was some crepitus in the patello femoral joint on movement with slight block to flexion and pain at full limit of flexion. He made no reference to her walking capabilities but had assessed her disability under Table 9.5 at 20%.

28. During cross examination, Dr Pentis agreed that the patello-femoral joint would not be under the same degree of stress when walking on a flat surface as when walking up a hill but he also said that one will have problems with the patello-femoral joint when walking. He agreed that he had based his 20% impairment on his findings. She had difficulty squatting, kneeling, negotiating stairs and sitting for long periods.

29. The next witness was Mr Quentin Scott who gave his occupation as musculoskeletal physiotherapist. He had examined the applicant on 24 November 2000. In that report he said that the applicant had described the pain as intermittent sharp pain in the knee which on a good day was present for 60% of the time. She had reported aggravation of her symptoms with prolonged sitting, driving, prolonged standing, steps and swimming. She also reported difficulty with walking greater than 500 metres without resting.

30. During his evidence in chief, he said that when tested on stairs the applicant was able to walk up and down a six-stair flight twice before she experienced an increase in knee pain. On observation she was noted to have poor quadriceps control when stepping down on to her left leg. He had not recorded anything significant about the way she had placed her feet on the stair treads. As far as the incline test was concerned she experienced pain especially down the incline.

31. He then tested her along a fairly flat measured distance. After walking about eighty metres she reported that she was getting pain in the knee. She then walked back the eighty metres and towards the end of the walk Mr Scott had noted an increase in her limping. He could not recall at what point she had commenced to limp. He opined that she did not want to put as much weight through her right leg because of pain. When asked for his opinion in relation to the degree of impairment according to the Comcare Tables his assessment was 20% under Table 9.5

32. During cross examination Mr Scott was asked what methods he would employ to try to improve her functional status if he had been asked to treat her. He detailed specific methods that he would employ to strengthen particular muscle groups.

33. During re-examination by Counsel, Mr Scott said that with a correct movement and exercise programme he could promise the applicant reduced levels of pain, increased functional status and reduced recurrence of severe painful episodes. How much each of these points improved would be a matter of how the treatment went, how much exercise was done and how long the patient had had the problem in the first place.

34. When asked, if at the end of the appropriate time would she be able to walk more than two or three kilometres, Mr Scott replied that if the rehabilitation went well and better muscle control of the joint range of movement were achieved, then he did not feel that such an outcome would be unrealistic. He believed that she could get more than two or three kilometres.

35. Dr Adam had also provided three written reports in relation to his examination on 22 October 2001. Dr Adam also gave oral evidence. In his report of 18 February, Dr Adam reported that the applicant had walked around the streets near his office for approximately 600 metres and had walked up and down stairs and ramps in an adjacent car park. He stated that the testing had taken about fifteen minutes and that she had completed the test without any apparent difficulty.

36. During cross examination, Dr Adam said that he could not explain why his findings had differed from those of Dr Sharwood, Dr Pentis and Mr Scott and that all he could do was to report his own findings. He agreed that if as a result of pain her ability to perform the activity was impaired then that would be regarded as an impairment. Mr Hume suggested that had Dr Adam walked the applicant for 2000 metres rather than 600 metres might not the results have been different? Dr Adam agreed that was possible but he said that although the figure chosen had been somewhat arbitrary, it was a distance that one would expect most people to be able to achieve comfortably.

37. Dr Fairbairn was another orthopaedic surgeon who had provided a written report and who also gave evidence by telephone. Dr Fairbairn had examined the applicant on 27 May 2002. Dr Fairbairn recorded that she is able to walk 800 metres although on occasions she notices discomfort in her knee after only twenty metres. Dr Fairbairn noted that she was able to walk without a walking aid and had no obvious limp on walking. She was able to walk up and down a flight of stairs with a normal rhythm but did make use of the rail.

38. Dr Fairbairn had performed the last two operative procedures on the knee in 1999 and in February 2000.. Dr Fairbairn after examining the applicant opined that she had a 10% impairment base on Table 9.5 and that he did not believe that there had been deterioration.

39. During his evidence in chief, Dr Fairbairn said that at the time of the examination the applicant had a fairly good range of motion in the knee. He had recorded the range of movement as 0 to 128 degrees. There had been only a small amount of crepitus. He agreed that when walking on a flat surface one does not need to bend the knee very much. He said that during the active weight bearing phase the knee will only need to bend fifteen to twenty degrees but about 40% when the knee is off the ground during the swing through phase.

40. Dr Fairbairn agreed that another ground for his opinion had been the location and severity of the chondromalacia patella noted at the time of the operation in 1999. While walking distances can vary he suspected that the applicant would be able to walk for a prolonged period of time and he would not be surprised if she had told him that she had walked eight kilometres.

41. During subsequent cross-examination by Ms Ford, Dr Fairbairn confirmed that five months after surgery in 1999 he had recorded in his notes that she was walking two to three kilometres, cycling for fifteen to twenty minutes and swimming for half an hour. When it was brought to his attention that a decrease in her exercise capacity had been noted six months after leaving the Army, Dr Fairbairn said that if she had dropped her physical activity then her stamina and muscle strength may have diminished. He said that increasing the exercise would increase the muscle stamina and condition and increase her ability to perform activities.

42. During further re-examination by Mr Hume, Dr Fairbairn said that while exercise would not change the damage within the knee joint, it would improve the muscle control around the knee which is an important stabilising factor and that is what people are told to do with any damage inside the knee joint to try and increase the muscle strength. In reply to further questioning he agreed that there could be no guarantee that as a result of the exercises she would be able to walk further.

43. Also provided as an exhibit was an outpatient clinical record dated 6 July 1999 in which it was recorded that the applicant had little pain and was walking three kilometres at her own pace with no problem.

REVIEW OF EVIDENCE

44. There is no dispute that the more appropriate Table to use in determining the degree of whole person impairment in this case is Table 9..5. Under Table 9.2 all professional witnesses had made an assessment of no more than 10% whole person impairment. Under Table 9.5 some professional witnesses had assessed the impairment at 20% and Table 9.5 therefore offered the potential for a more favourable determination for the applicant.

45. In August 1998 it had been determined that the applicant was entitled to a 10% whole person impairment and the applicant now claims that there has been further deterioration and that she should be assessed now at 20% impairment under Table 9.5.

46. In his final submission Mr Hume said that the essence of the case revolved around the interpretation of Table 9.5 as to what constitutes a distance. In the view of the Tribunal other factors to consider are whether the current level of impairment should be regarded as permanent and which professional assessments should be accepted as likely to be the most accurate.

47. Mr Hume submitted that the Tribunal would be within its rights to disregard the evidence of Dr Adam and Dr Goode completely mainly because they are occupational physicians and this was not a case related to work capacity. The Tribunal accepts however that the occupational physicians are experienced in functional assessment and does not consider their contribution to be irrelevant. Dr Adam in particular failed to determine any difficulty with distances although Counsel for the applicant submitted that the testing distances had been insufficient. The Tribunal agrees with Dr Adam that although somewhat arbitrary, 600 metres is a distance that one would expect most people to be able to achieve comfortably and that it is a reasonable distance for a clinical assessment.

48. Mr Hume accepted that Dr Fairbairn was a competent and reliable witness who had assessed the applicant at 10% but he submitted that the Tribunal might accept what he described as the preponderance of evidence from Dr Sharwood, Dr Pentis and Mr Scott all of whom had assessed the applicant at 20% under Table 9.5.

49. The Tribunal has some difficulty with the evidence of Dr Sharwood and Dr Pentis. Dr Sharwood had assessed the applicant in December 2000 which was six months after she had lodged her claim for the additional lump sum payment. Dr Sharwood had based his assessment on the applicant walking about three metres across his room and walking up steps. No other professional witness had observed impairment with such minimal activity and for whatever reasons his observations were as recorded, the Tribunal does not accept that those observations could be regarded as truly testing the degree of impairment. The Tribunal therefore attaches no weight to the report of Dr Sharwood.

50. In relation to Dr Pentis, the Tribunal notes first that his assessment was made back in February 1998 and therefore antedates the surgical procedures performed in 1999 and 2000. Any assessment which he made at that time is hardly relevant to the period subsequent to that surgery. There is clear evidence that in 1999 the applicant was able to walk three kilometres without problems. In addition, Dr Pentis confirmed in his evidence that he had based his 20% impairment on the fact that she had difficulty squatting, kneeling, negotiating stairs and sitting for long periods. He also commented that she could not run well and yet he assessed 20% impairment which according to Table 9.5 should be 10%. The Tribunal therefore finds the evidence of Dr Pentis to be of little assistance.

51. Mr Scott was an impressive witness. As a musculoskeletal physiotherapist he was able to detail his assessment of the various muscle groups and he clearly made a comprehensive assessment of the capabilities of the applicant as demonstrated to him in November 2000. He had noted that she could walk up and down a six-stair flight twice before experiencing an increase in knee pain in contradistinction to Dr Sharwood detecting difficulty after only two steps.

52. The applicant had told Mr Scott that she had difficulty walking more than 500 metres without resting but during his walking test she had complained of pain in the knee after walking eighty metres. She continued to walk another eighty metres and he noted a limp towards the end of the walk. He did not otherwise record whether she was experiencing difficulty in walking during that test.

53. The Tribunal notes that the claimed deterioration had occurred within a matter of months of her discharge from the Army. In July 1999 it was recorded that she was walking three kilometres without problems and Dr Fairbairn had recorded that she was walking two to three kilometres and cycling for twenty minutes. In June 2000, Dr Jackson had recorded her walking tolerance to be thirty minutes. During his final submissions Mr Hume accepted that she probably was able to walk two to three kilometres prior to discharge from the Army.

54. The question arises then as to why having improved after the 1999 surgery and having maintained that improvement prior to discharge should she deteriorate during the following few months. Based on the professional evidence, the Tribunal concludes that the deterioration was due to her failure to maintain a reasonable level of activity. We note that Dr Fairbairn stated that if she had dropped her physical activity, then her stamina and muscle strength may have diminished and increasing exercise would increase her muscle stamina and increase her ability to perform activities. The evidence of Mr Scott provided further support for the value of appropriate activity.

55. The applicant in her evidence told of the reduction in physical activity. She said that since leaving the Army she had worked long days and there was no time for exercise. In reply to another question she said that she was not the type of person to have a lot of movements and activities, that she was not athletic at all.

56. While the Tribunal does not doubt the observations of Mr Scott we do not feel that his observations on a single day in the year 2000 outweigh the totality of the evidence. There is in the opinion of the Tribunal no clear evidence that the applicant would have difficulty in walking what would be considered a comfortable walking distance. She acknowledged that she usually walked the dog about 800 metres and she agreed in response to a question from Ms Ford that if she had been able to walk two to three kilometres in 1999 then she could probably walk that distance now but she had not tried.

57. Mr Scott had reported that the applicant had developed a limp at 160 metres. The applicant commented that while others had noted a limp she was not conscious of the limp and that to her the gait was natural and that it did not take any effort to walk in the way that she does.

58. The Tribunal attaches much weight to the evidence of Dr Fairbairn. Dr Fairbairn had performed the last two operations in 1999 and 2000. He had followed her up during the months following surgery and he is the only professional witness to have examined her since 2001. He is therefore in the unique position of having been able to assess her over an interval in excess of three years. Dr Fairbairn did not believe that there had been any deterioration and he assessed her impairment at 10% under Table 9.5. Dr Fairbairn had based his assessment on the history that she was able to walk 800 metres, his examination and the location and severity of the patella changes noted at the time of operation.

59. There was some discussion based on one document as to whether the applicant had in fact been able to walk eight kilometres at some stage following surgery. The Tribunal remains unconvinced that the document in question could be relied upon to indicate that such was the case, but clearly the applicant had been able to walk two to three kilometres and, as already stated, no evidence has been produced to say that she would encounter difficulty in walking such a distance following an appropriate exercise programme.

60. Mr Hume submitted that the Tribunal in assessing the question of walking should base the assessment on what a normal person of the same age, sex, standard of health as the applicant should be able to walk. If a person with a lower limb impairment of 10% is able to walk two to three kilometres without difficulty then this Tribunal does not believe that such a person reaches the threshold of 20% under Table 9.5.

61. Finally we come to the question of whether the current functional impairment is permanent or not. We note that Mr Scott had placed great emphasis on the role of the muscles associated with the knee joint in minimising any functional impairment. Dr Fairbairn and other surgeons had also emphasised the important role of these muscle groups in relation to knee joint function. Mr Scott said that with a correct movement and exercise programme he could promise the applicant reduced levels of pain, increased functional status and reduced recurrence of severe painful episodes. At the end of that time he said that if better muscle control of the joint range of movement were achieved then he believed that she could achieve more than a distance of two to three kilometres. In relation to the earlier evidence of Mr Scott it is clear that his assessment of the value of an appropriate exercise programme is of more relevance than his observations during the single assessment in November 2000.

62. The Tribunal accepts that the damage to the right knee joint is permanent and that the applicant has a 10% whole person impairment. When one has regard to the potential for further substantial improvement in function as indicated in the evidence of Mr Scott and accepted by the Tribunal, the Tribunal does not consider that it has been established that the applicant has an additional permanent impairment of a degree that would equate to 20% under Table 9.5.

63. The Tribunal therefore affirms the decision under review.

I certify that the 63 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe, Senior Member, Dr K P Kennedy, Member and Mr I R Way, Member

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

Associate

Dates of Hearing 18 and 19 November 2002

Date of Decision 4 February 2003

Counsel for the Applicant Mr R Hume

Solicitor for the Applicant James Watt & Co

Counsel for the Respondent Ms E Ford

Solicitor for the Respondent Phillips Fox