Virtue and Comcare

[2001] AATA 974

DECISION AND REASONS FOR DECISION [2001] AATA 974

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2000/464

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      DEAN JAMES VIRTUE    
  Applicant
           And    COMCARE  
  Respondent

WRITTEN REASONS

Tribunal       Mr. D.W. Muller, Senior Member Ms. J. Cowdroy, Member   

Date13 November 2001 

PlaceBrisbane

..............Signed................................
  D.W. MULLER
  SENIOR MEMBER

CATCHWORDS
WORKERS COMPENSATION – Permanent Impairment – objective assessment 
Safety, Rehabilitation and Compensation Act 1988: s24

REQUEST FOR WRITTEN REASONS FOR DECISION

Mr. D.W. Muller, Senior Member Ms. J. Cowdroy, Member               

1. This is an application to review a decision that the applicant is not entitled to compensation pursuant to the provisions of s.24 of the Safety, Rehabilitation and Compensation Act 1988 (the Act), in relation to an injury to the applicant's left ankle which has resulted in a permanent impairment.

2. It is the respondent's contention that, although the applicant has a permanently impaired left ankle, the degree of whole person permanent is less than 10% under the provisions of the relevant Guide.  If the degree of permanent impairment is less than 10% an amount of compensation is not payable to the employee for permanent impairment (s.24(7) of the Act).

3. The applicant injured his left ankle during a physical training exercise when he was a member of the Royal Australian Air Force.  The incident occurred in June 1997 when he fell a distance of about three or four metres on to his left ankle.  He broke his left ankle.  He had two operations to fix it, including the insertion of two screws into his ankle, which were removed a year later.

4. The Tribunal is satisfied that the applicant has been left with a permanent impairment to his left ankle.  On the question of degree of whole person impairment, the only table in the Guide that is relevant in this case is 9.5, because it is more favourable to the applicant than 9.2

5. The Tribunal received evidence and reports from a number of experts from the medical and occupational therapist fields.  There were significant differences between the witnesses as to the degree of whole person impairment suffered by the applicant.  This was no doubt due to the different responses given by the applicant to the various examiners.

   (i)Dr. Grant, who first examined the applicant for compensation, whilst the applicant was still serving in the RAAF, found very little wrong with him and assessed his impairment at zero.

   (ii)Ms. Jenner, an occupational therapist, who examined the applicant to see if he could cope with security work, found very little wrong with him.

   (iii)Ms. Bertoldi, an occupational therapist, who examined the applicant for the purposes of compensation about one month after Ms. Jenner's examination, found that the applicant had a 20% impairment.

   (iv)Dr. Parsons, an orthopaedic surgeon, found a 20% impairment.

   (v)Dr. Schneider, an occupational physician, found that the applicant's impairment was less than 10%.

   (vi)Dr. Pentis, orthopaedic surgeon, took a more objective view when assessing the applicant, rather than relying purely on the applicant's responses.  Dr. Pentis noted the x-rays and medical history of the matter.  He noted that the applicant had lost about 5% of his calf size.  He assessed the applicant's permanent impairment at 10%.

6. Although it is clear that the applicant has suffered an injury to his left ankle which has resulted in a permanent impairment, it has not been easy to assess the degree of impairment.  The applicant has been able to walk his dog, mow the lawn, play tennis occasionally, stand, sit and work as a security officer.  On the other hand he has complained to various doctors that he has a significant degree of impairment.  It is difficult to get an objective view as to what is the applicant's degree of impairment.

7. It may well be, as Dr. Schneider said, almost impossible to get an objective answer to these problems because they are nearly all dependent on a subjective analysis of the results.  They depend on what the person being interviewed or tested says about the matter or how they react.  However, the Tribunal cannot throw up its hands and say it cannot make a decision.  The Tribunal has decided that of all the people who have examined Mr. Virtue, Dr. Pentis seems to have taken an objective view.  Dr. Pentis is an orthopaedic surgeon with extensive experience in this area.  He has taken into account the extent of the injury and the expectation based on his experience of what degree of impairment that would be likely to produce, what problems a person with that degree of injury would be likely to encounter.   Dr. Pentis has also noted that there has been some muscle wasting in the calf.  His evidence was to the effect that a person with the applicant's left ankle would experience many of the problems which the applicant complains of and would rate 10% permanent impairment under Table 9.5 in the Guide.  The Tribunal accepts that rate.

8. The decision under review is set aside and in substitution the Tribunal determines that Dean James Virtue suffers a whole person permanent impairment under Table 9.5 of the Guide of 10%.

   I certify that the 8 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. D.W. Muller, Senior Member and Ms. J. Cowdroy, Member.

   Signed:         .....................................................................................
              B. Hitchcock, Secretary

   Date/s of Hearing  12, 13 November 2001
   Date of Decision  13 November 2001
   Written reasons  29 November 2001
   Counsel for the Applicant        Ms. Heyworth-Smith
   Solicitor for the Applicant         D'Arcys
   Counsel for the Respondent    Ms. E. Ford
   Solicitor for the Respondent    Australian Government Solicitor