Mahon and Telstra Corporation Limited [2010] AATA 102 (11 February 2010)

Last Updated: 12 February 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 102

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/2724

GENERAL ADMINISTRATIVE DIVISION		)
	Re		CHRISTOPHER JOHN MAHON

Applicant

And

TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal

Senior Member M. D. Allen Dr M. E. C. Thorpe, Member

Date 11 February 2010

Place Sydney

Decision

The decision under review is SET ASIDE and this matter is REMITTED to the Respondent with the Direction that the Applicant’s degree of incapacity from the injury described as “injury to the right knee” is 30%.

The Respondent is to pay the Applicant’s costs.

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

M. D. Allen, Presiding Member

CATCHWORDS

WORKERS’ COMPENSATION – Ascertainment of degree of permanent impairment. Previously permanent impairment assessed at 20%. New application to assess impairment at 30% pursuant to Table 9.7 of the 2nd edition of the Guide to the Degree of Permanent Impairment.

LEGISLATION

Safety Rehabilitation and Compensation Act 1988 section 28.

REASONS FOR DECISION

11 February 2010

SM ALLEN & DR M E C THORPE

1. The issue in this matter is the degree of incapacity occasioned to the Applicant by a work-caused injury to his right knee.
2. On 21 January 1997 the Applicant suffered injuries to his right knee and forearms whilst in the employ of the Respondent. By a determination dated 7 February 1997 liability was accepted for injuries described as “multiple soft tissue injuries to the right knee both forearms and lower back”.
3. On 23 May 2002 the Respondent revoked a determination dated 27 November 2001 approving ongoing weekly incapacity benefits for the said injury. By decision dated 23 March 2004 the Administrative Appeals Tribunal (“AAT”) decided that the Applicant was entitled to the ongoing payment of compensation for injuries more particularly described as “injury to the right knee and ischaemic damage to the median nerve of both forearms.”
4. By determination dated 15 October 1999 the Respondent had determined that the Applicant had suffered a combined total of 26% whole person impairment as per the Guide to the Assessment of the Degree of Permanent Impairment, (“the Guide”) 1st edition.
5. A further claim for permanent impairment was lodged by the Applicant on 4 October 2007 claiming an increase in the degree of permanent impairment suffered by him.
6. Subsection 25(4) of the Safety Rehabilitation and Compensation Act 1988 (“SRC Act”) states:

“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.”

7. Although the Applicant’s degree of permanent impairment had initially been assessed under the 1st edition of the Guide as at 1 March 2006, any assessment of permanent impairment had to be made using the 2nd edition of that Guide. See Ss 28(2), (3A) and (4) SRC Act.
8. On 15 October 1998 the Respondent, by its delegate had determined that the Applicant suffered 20% impairment to his right knee. In these proceedings the claim by the Applicant was that the incapacity occasioned to his right knee was now 30% and hence there had been a 10% increase in his degree of permanent impairment. No claim was made in respect of the injury described as “ischaemic damage to the median nerve of both arms”.
9. There was no dispute between the parties that the correct Table under the 2nd edition of the Guide was Table 9.7. Insofar as is relevant Table 9.7 headed “Lower Extremity Function” reads:

% WPI	Major Criteria (at least one required)	Minor Criteria (at least two required where listed)
20%	Walks at a moderately reduced pace in comparison with peers on level ground; or Walking is restricted to 250m or less at a time (may be able to walk further after resting).	Legs give way occasionally resulting in falls. Is unable to negotiate three or more stairs or a ramp (up and down) without use of rails. Is unable to rise from sitting to standing position without use of one hand but can stand without support.
30%	Walks at a significantly reduced pace in comparison with peers on level ground; Or Walking is restricted to 100m or less at a time (may be able to work further after resting).	Legs give way frequently resulting in falls. Demonstrated medical need for a brace or walking aid (walking stick or crutches) on level ground. Is unable to negotiate three or more stairs or a ramp (up and down) without assistance from someone else. Is unable to rise from sitting to standing position without use of both hands but can stand without support.

10. Medical reports evidence that the Applicant has had numerous surgical procedures to his right knee. These include an osteotomy, four arthroscopies and a total knee replacement on 15 August 2005, a revision of his total right knee replacement in 2007, and a further revision on 29 April 2008.
11. In evidence to the Tribunal the Applicant stated that he experiences pain daily in his right knee. He has some good days when he does not need to take medication but can take up to 12 digesic tablets a day to cope with the pain.
12. He added that if he wakes up with pain in his right knee he does not go out that day.
13. The Applicant stated that he no longer goes walking with his wife and he estimated that he walked 30-40% slower than her. On three or four occasions his knee pain has been so severe he has been forced to hire an electric buggy. He finds he continually has to walk at a slow pace.
14. On days that his knee is sore he can walk for 50 metres without stopping but on a good day he can walk up to 150m.
15. The Applicant stated that there is now a definite weakness in his right knee and that it gives way quite often. Because of his knee giving way he has fallen, these falls occur about two to three times a week on average.
16. The Applicant was asked to demonstrate how he got up from a chair with high arms. He demonstrated by turning his body to the left with his right shoulder and arm above his left hand and then using his left hand to lever himself out of the chair.
17. Questioned about his ability to exit other chairs, he said at home he had a recliner rocker and rocked forward to get out, whereas if he was in a “comfortable” chair such as a lounge chair, he needed assistance.
18. Because of the instability in his right knee his treating orthopaedic surgeon, Dr Laird, had prescribed a knee brace for him. He does not wear this brace all the time nor does he often use the walking sticks provided to him.
19. The Applicant’s home has 14 stairs and he is able to get up and down those stairs using the handrail.
20. Cross examined the Applicant stated that he worked one day a week and this work could involve driving a courtesy bus delivering hotel patrons home. On one other occasion he had driven a party of tourists to the Hunter Valley, a distance of one hour and fifteen minutes and had then driven them around that area.
21. In a non-economic loss questionnaire prepared by the Applicant and received by the Respondent on 22 January 2008, the Applicant said that he suffered continual depression and stayed at home all the time as he was not comfortable leaving the house.
22. Previously, in a report dated 6 September 2007, Professor Kleinman had taken a history of: “Since his knee replacement he has been unable to take part in any sporting activities... he used to coach a senior soccer team but he can no longer participate in those activities.”
23. Cross examined, the Applicant admitted that in 2009 he coached a 3rd grade women’s soccer team in a local competition and also an Under 11 team.
24. A perusal of the newsletters of the two teams, downloaded from the Web page produced by the Soccer Club in question, shows that the club’s activities, like many amateur football clubs, include a social side with after-game drinks and barbeques. Reference is made, several times, to Coach “Mahoon”. Although we can accept that the Applicant does not have to walk far to carry out his coaching duties and can sit down for most of the game, the activities revealed in the Club newsletter hardly fit the description of a person who stayed home as he was depressed, in constant pain, and uncomfortable leaving the house.
25. The Applicant was examined by Professor Kleinman on 6 September 2007, and by Dr Bodel, Orthopaedic surgeon on 19 February 2008. We find that any reports prior to the second revision of the right knee replacement of 29 April 2008 are of limited value.
26. The Applicant was again examined by Dr Bodel on 16 February 2009. In his report of 27 July 2009, Dr Bodel stated inter alia:

“From a treatment point of view he takes between six and eight digesic tablets a day but particularly at night to help him sleep and he is no longer having physiotherapy. As I have indicated he does use the knee brace and walking stick intermittently.

He also reports that he has a Jason recliner chair at home as he needs to have a chair with arms on it to be able to get out of the chair. I note that in the examination today he was sitting in a chair with arms on it and he did use his arms to push himself up out of the chair...

From the Table I believe that his clinical presentation today fits into the 20% whole person impairment category. He is able to ‘walk at a moderately reduced pace in comparison to peers on level ground’.

This is the first major criteria.

From the point of view of the minor criteria, he does have episodes where his ‘legs give way occasionally resulting in falls’. He also indicated to me that he was ‘unable to negotiate three or more stairs (up or down) without using the rails’. He did manage to ascend and descend 15 stairs using the railing.”

27. Cross examined in these proceedings, Dr Bodel did not add anything to his report. The advantage of having Dr Bodel’s evidence is that he did make specific observations as to the Applicant’s performance against the nominated criteria in Table 9.7.
28. Professor Kleinman, as did Dr Bodel, had initially used the American Medical Association Guide to Impairment, as that guide, unlike the Comcare Guide, provides an impairment level for total knee replacement. However, in his report of 28 May 2009, Professor Kleinman notes the Applicant’s leg gave way underneath him occasionally, and when standing up from the seated position he has to push up on the arms of the chair. In concluding his report he states: “This man has had a poor result from a knee joint replacement of his right knee”. He assessed the Applicant’s impairment at 30%.
29. In a report dated 1 December 2008, Dr Allman, orthopaedic surgeon, assessed the Applicant’s degree of impairment at 20%. Unfortunately Dr Allman refers to the Applicant’s left knee? He based his opinion on the basis that the Applicant walked at a moderately reduced pace in comparison with peers on level ground. He did not address the minor criteria.
30. In a report bearing the date 28 May 2009, which dated is obviously incorrect as it refers to a letter from the Applicant’s solicitors of 03/09/09. Professor Kleinman states:

“This man needs to wear a brace on his right knee because, as described in my previous report, his right leg occasionally gives way underneath him. This is the primary reason why he needs to wear a brace on his right knee because if his knee gives way and he falls he could end up with a further severe injury such as a fracture of his femur of his leg.

He walks with an antalgic limp on his right leg with a rather stiff-kneed gait. He is able to negotiate three steps but only by hanging onto a banister or railing with assistance. He has difficulty walking but he is able to walk outside the confines of his house and yard. He is able to stand from a seated position without personal assistance but he uses both hands on the arm of the chair to help push himself up. He cannot kneel or squat on his right knee.”

31. Dr Bodel considered that the Applicant walked at a moderately reduced pace cf Professor Kleinman who opined the Applicant’s walking was restricted to 100 metres or less at a time.
32. We find on the Applicant’s own evidence that he can walk more than 100m at a time. Although Dr Bodel observed the Applicant walking, it was only for a distance of 30 to 40 metres. If, as stated by the Applicant, he walks 30 to 40% slower than his wife then it seems to us that he meets one of the major criteria for 30% incapacity, viz: “walks at a significantly reduced pace in comparison with peers on level ground”
33. Given that the only objective assessment of the Applicant’s walking ability is that of Dr Bodel who observed only over a short period, we are left with either accepting or rejecting the Applicant’s sworn evidence of his inability to walk. As his knee replacement does not seem to have been totally successful – see Dr Kleinman’s report of 28 May 2009 – we accept that he walks at a significantly reduced pace.
34. As to the minor criteria, we are satisfied that the Applicant has demonstrated a medical need for a brace. See the report of Professor Kleinman of September 2009 (which became Exhibit A4). Apparently the brace was recommended by the surgeon who carried out the knee replacement, Dr Laird.
35. We do not accept that the Applicant’s knee gives way frequently resulting in falls. None of the medical reports refer to the Applicant falling at the rate of two to three times a week and in his latest report, Professor Kleinman refers to the Applicant’s right leg occasionally giving way. cf Dr Bodel who on 27 July 2009 refers to the history he took of “[his] legs give way occasionally resulting in falls.”
36. In making an assessment of the Applicant’s evidence and what he has in the past told examining medical practitioners, we prefer to rely on the Applicant’s previous statements. If, as claimed, the Applicant is prone to falling two or three times a week we would have thought that more use would have been made of his knee brace and walking sticks.
37. As observed by Dr Bodel and on his own evidence the Applicant can negotiate more than three stairs without assistance from someone else.
38. Both Dr Bodel and Professor Kleinman referred to the Applicant’s apparent difficulty in arising from an office chair. Although the Applicant demonstrated an apparent ability to arise from a chair using his left hand, this movement did involve a shifting of weight and balancing by the right arm and hand. In other words, a use of both hands. As apparently all other types of chairs require either two arms to push himself up or he needs assistance, we accept that this minor criteria has been met.
39. We are satisfied that the Applicant does meet one major and two minor criteria such as to exhibit an incapacity of 30% under Table 9.7 of the Guide, 2nd Edition.
40. The decision under review is therefore SET ASIDE and this matter is REMITTED to the Respondent with the Direction that the Applicant’s degree of incapacity from the injury described as “injury to the right knee” is 30%.
41. The Respondent is to pay the Applicant’s costs.
    

I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Dr M E C Thorpe, Member

Signed: ......................[sgd]......................................

K. Lynch, Associate

Date/s of Hearing 27 and 28 January 2010

Date of Decision 11 February 2010

Counsel for the Applicant Mr M Vincent

Solicitor for the Applicant Bale Boshev Lawyers

Counsel for the Respondent Mr J Sheller

Solicitor for the Respondent DLA Phillips Fox