Belcher and Comcare (Compensation) - [2025] ARTA 236

Belcher and Comcare (Compensation) [2025] ARTA 236 (6 March 2025)

Applicant/s:  Cameron Belcher
Respondent:  Comcare
Tribunal Number:                2023/7799
Tribunal:Senior Member G McCarthy
Place:Canberra
Date:6 March 2025

Decision:

The decision under review is affirmed.

……………[SGD]………………..

Senior Member G McCarthy

Catchwords

COMPENSATION – claim for permanent impairment and non-economic loss arising from accepted post-traumatic osteoarthritis in employee’s left ankle – review of decision that compensation not payable because degree of permanent impairment determined below 10% – whether loss of cartilage in the ankle is an impairment that cannot be assessed under the Comcare Guide and can therefore be assessed under AMA 5, being 12% and above the threshold – consideration of injury and impairment and assessment of impairment under ss 24 and 28 of the Act and under the Comcare Guide, being loss of functional capacity resulting from permanent impairment relative to capacity of a normal healthy person – assessment of loss of cartilage can be and has been assessed under the Comcare Guide – nothing identified or claimed resulting from loss of cartilage that cannot be assessed under the Comcare Guide – inadequacy of quantitative assessment of impairment under the Comcare Guide not a basis for departing from the assessment – decision affirmed

Legislation
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, Part 6, Sch 2
Safety, Rehabilitation and Compensation Act 1988 – ss 14, 24, 27, 28

Cases
Blandon and Comcare [2019] AATA 3277
Canute v Comcare [2006] HCA 47
Comcare v Broadhurst [2011] FCAFC 39
Coulter and Comcare [2005] AATA 874
Edwards and Comcare [2001] AATA 522
Fellowes v Military Rehabilitation and Compensation Commission [2009] HCA 38
Lees v Comcare [1999] FCA 753
Re Pavic and Comcare (1996) 45 ALD 409
Slattery v Comcare [2010]) AATA 56
Wills and Comcare [2024] AATA 1480

Secondary Materials
Annotated Safety, Rehabilitation and Compensation Act 1988 Twelfth Edition

Guide to the Assessment of the Degree of Permanent Impairment, Edition 3.0

Statement of Reasons

This application arose from the Applicant’s claim for permanent impairment and non-economic loss (PI and NEL) made on 12 May 2023 under ss 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) in respect of an injury described by his treating practitioner in his claim as “left ankle post-traumatic arthritis and deformity”.[1]
[1] T33/150
On 7 September 2023, the Respondent determined the degree of permanent impairment is less than 10%.[2] Pursuant to s 24(7) of the SRC Act, in this circumstance, compensation under s 24 for permanent impairment “is not payable”. Likewise in this circumstance, pursuant to s 27(1), compensation for non-economic loss is not payable. The Respondent therefore rejected the Applicant’s claim for PI and NEL.
[2] T40/186
On 12 September 2023, the Applicant requested a review of the Respondent’s decision.[3] On 16 October 2023, the Respondent affirmed its initial decision.[4] On 18 October 2023, the Applicant applied to the Administrative Appeals Tribunal (the AAT) for review of the Respondent’s review decision.[5]
[3] T41/188
[4] T42/187
[5] T2/6
On 14 October 2024 the AAT Act was repealed and, consequently, the AAT ceased to exist. The Administrative Review Tribunal Act 2024 (the ART Act), which established this Tribunal, commenced on the same day.
Pursuant to Part 6, Schedule 2, item 24 of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, “if a proceeding in the AAT is not finalised (however described) before the transition time[6] [as in this case] the proceeding must be continued and finalised by the ART in a manner that the ART considers is efficient and fair.” Accordingly, this Tribunal can and must continue to hear and determine the Applicant’s application for review of the Respondent’s review decision.
[6] "Transition time" is defined in Schedule 16, item 1, to mean the time the Administrative Review Tribunal Act 2024 commenced, meaning 14 October 2024

Background

The injury to the Applicant’s left ankle has its origins in an injury suffered on 27 April 2005 when the Applicant was tackled by an instructor during scenario training for the use of defensive tactics. The tackle occurred in the course of the Applicant’s employment by the Commonwealth. On 14 July 2005, the Respondent accepted liability for the injury under s 14 of the SRC Act.
On 22 February 2021, the Applicant lodged a claim for a new injury, “degenerative osteoarthritis in left ankle resulting from workplace injury in 2005”.[7]
[7] T13/43
On 31 May 2021, with reliance on a report dated 3 May 2021 from Dr Saxby, orthopaedic surgeon, the Respondent accepted liability under s 14 of the SRC Act for the Applicant’s “post-traumatic osteoarthritis left ankle”.[8]
[8] T22/126
The Respondent accepted the most significant cause of the new injury is the original injury suffered on 27 April 2005.
On 16 November 2022, Dr Dixon, orthopaedic surgeon, conducted an assessment of the Applicant’s left ankle. On 17 November 2022, Dr Dixon provided a report[9] in which he made eight diagnoses including (relevant for present purposes):
Bone on bone OA [osteoarthritis] at the anterior tibiotala joint, with the joint space of 0 mm at the tibial plafond and anterior talus.
[9]
Also on 17 November 2022, Dr Dixon provided a supplementary report[10] in which he gave his assessment of the Applicant’s degree of permanent impairment by reference to Table 9.2 “Ankles” in edition 2.1 of the Respondent’s document Guide to the Assessment of the Degree of Permanent Impairment. Dr Dixon wrote:
This claimant’s impairment from the Comcare Guides 2.1, Table 9.2, Page 83 is 3% plus 3% for the stiffness of the ankle and 1% for the restricted eversion of 7%.
This is inadequate to describe his disability.
In relying on the Comcare Guides, an assessment may be made under the provisions of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fifth Edition 2001 [AMA 5], where, from Table 17-31, Page 544, his bone on bone of the anterior ankle joint of 0mm gap on weight bearing views, equates to 12% whole person impairment, which is a more realistic assessment of the claimant’s ongoing disability.
There were no symptomatic pre-existing conditions.
He has reached maximum medical improvement.
[10] T31/146
Dr Dixon’s reports were accepted into evidence without objection. Dr Dixon was not called to give further evidence and was not required for cross examination.
With effect from 1 April 2023, edition 2.1 of the Respondent’s Guide was repealed and edition 3.0 commenced (the Comcare Guide).[11] Where the Applicant’s claim for PI and NEL was made on 12 May 2023, with the parties agreement, I proceeded by reference to edition 3.0 of the Comcare Guide in accordance with s 6 of the Minister’s Instrument dated 7 March 2023, Schedule 1 of which is the Comcare Guide. I note that Table 9.2: Ankles in edition 3.0 of the Comcare Guide is unchanged from Table 9.2 in edition 2.1.
[11] Safety, Rehabilitation and Compensation Act 1988 Guide to the Assessment of the Degree of Permanent Impairment Edition 3.0, paragraphs 3 and 7
On 25 July 2023, Dr Kevat, rheumatologist, conducted an assessment of the Applicant’s left ankle. In his report dated 7 August 2023,[12] Dr Kevat recorded “there are very severe ankle joint osteoarthritic features.” He recorded:
Associated secondary chronic osteoarthritis of the ankle joint characterized by complete loss of the articular cartilage in the medially, osteophytes predominantly anteriorly, subchondral bone marrow oedema and cystic changes also noted in the anterior and medial tibial plafond. (emphasis added)
[12] T36/169
Dr Kevat recorded that “imaging studies confirm the presence of severe post-traumatic left ankle osteoarthritis”.
Dr Kevat gave his opinion, which the Respondent accepts, that the most significant cause of the Applicant’s left ankle osteoarthritis is the injury suffered in the course of his employment on 27 April 2005. Dr Kevat said that in his opinion the Applicant’s injury to his left ankle is “likely to continue indefinitely” with “no likelihood of an improvement”. Dr Kevat added:
The impairment cannot be improved by further medical or rehabilitative treatment. When his pain becomes less tolerable, he may obtain pain reduction with an orthopaedic procedure. There is no prospect of improved range of movement.
By reference to his assessment of the Applicant’s left ankle, Dr Kevat was asked “what is the percentage of impairment to the body part(s), system(s) or function(s) resulting from the injury” by reference to the Comcare Guide.
Dr Kevat answered:
[When the Applicant presented for assessment] he wore a left ankle brace. After removal of the brace, dorsiflexion of the left ankle, as assessed by goniometer was just under 10° (right 30°), plantar flexion just under 20° (right 40°), eversion 10° (right 20°) and inversion 10° (right 20°)
Based on Comcare Guide Edition 3, Table 9.2, he currently has a 3% Whole Person Impairment as a result of restricted ankle dorsiflexion (extension) of just below 10° and plantar flexion just below 20° as determined by goniometer assessment during his physical examination.
Dr Kevat added:
The impairment to his ankle is not a result from two or more conditions.
On 30 August 2023, Dr Kevat provided a supplementary report[13] by way of requested comment on Dr Dixon’s opinion that AMA 5 provides a more realistic assessment of the Applicant’s ongoing disability and on why he (Dr Kevat) made an assessment of 3% whole person impairment where Dr Dixon made an assessment of 7% under the Comcare Guide.
[13] T39/183
In response to the first requested comment, Dr Kevat wrote:
Dr Dixon argues for the use of AMA 5, which takes account of the radiographic appearance, in the assessment of his [the Applicant’s] WPI. For a Comcare case it is the current Comcare Guide that is preferentially applied. There is no requirement to use AMA 5 unless the Comcare Guide “cannot be used”, which is not the case. From the clinical perspective, radiographic appearances do not always correlate with symptoms or impairment.
In response to the second requested comment, Dr Kevat wrote:
The first item on Table 9.2 of Comcare Guide 3.0 refers to the motion impairment of the ankle joint. It suggests 3% WPI for the range exhibited by Mr Belcher.
It appears that Dr Dixon has added elements of “stiffness” and the restricted range of eversion-inversion, neither of which are mentioned in the Table, to arrive at his figure.
Dr Kevat was also asked to comment on why the AMA 5 rating of 12% did not accurately represent the Applicant’s degree of impairment. Dr Kevat wrote:
Rating scales are ultimately arbitrary instruments which provide an approximation of the reality of the subject’s impairment for legal purposes. For a Comcare case it is the current Comcare Guide that is preferentially applied. There is no requirement to use AMA 5. My clinical sense is that AMA 5 overestimates his impairment.
I looked at the possibility of applying Table 9.7 of the Comcare Guide, as a means of taking account of his symptoms. However, Table 9.7 specifically excludes subjects with motion impairment, the recommendation being to employ the earlier range-of-motion tables in that circumstance.
Dr Kevat’s reports were accepted into evidence without objection. Dr Kevat was not called to give further evidence and was not required for cross examination.

Issue for consideration

Two issues arose for consideration in this matter.
First, whether a permanent impairment suffered by the Applicant as a result of the injury to his left ankle cannot be assessed under the Comcare Guide. If not, pursuant to paragraph 56 of the Comcare Guide, ”the assessment is to be made under the AMA 5”.
Second, what (if anything) arises from Dr Dixon’s opinion that an assessment of the Applicant’s impairment under the Comcare Guide is “inadequate to describe his disability.” The Applicant accepted that if the degree of permanent impairment is less than 10% compensation under ss 24 and/or 27 is not payable.
Section 24 relevantly provides:
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.
(2)  For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a)  the duration of the impairment;
(b)  the likelihood of improvement in the employee's condition;
(c)  whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)  any other relevant matters.
(3)  Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4)  The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(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.

(7) Subject to section 25, if:
(a) the employee has a permanent impairment other than a hearing loss; and

(b) Comcare determines that the degree of permanent impairment is less than 10%;

an amount of compensation is not payable to the employee under this section.

The Applicant’s submissions

The Applicant accepted that pursuant to s 28(4) of the SRC Act, the provisions of the Comcare Guide are “binding on Comcare” and hence the Tribunal on review.
In this context, the Applicant relied on paragraph 56 of the Comcare Guide which states:
In the event that an impairment is of a kind that cannot be assessed in accordance with the provisions of this Guide, the assessment is to be made under the AMA 5.
The Applicant also relied on paragraph 225 in Chapter 9, Part 1, of the Comcare Guide which addresses the lower extremities of the musculoskeletal system - feet and toes, ankles, knees and hips. Paragraph 225 states:
Where a condition cannot be assessed under Table 9.1: Feet and toes, Table 9.2: Ankles, Table 9.3: Knees or Table 9.4: Hips, an assessment may be made under the provisions of the AMA 5.
The Applicant referred to paragraph 236 under the heading “9.2 Ankles” which states:
Table 9.2: Ankles assesses impairments to range of motion and deformity of the ankle, as well as ankylosis. Ankle deformity with movement is assessed separately from ankylosis.
The Applicant submitted a permanent impairment resulting from his injury cannot be assessed under Table 9.2, and that an assessment of that impairment therefore can and should be made under AMA 5.
The Applicant’s position as to what is the permanent impairment that cannot be assessed under Table 9.2 changed as the hearing progressed. Counsel for the Applicant began by submitting the compensable injury has resulted in more than one impairment, “including reduction in range of motion in the ankle, lower extremity dysfunction, and pain.”[14] At hearing, Counsel for the Applicant withdrew the claim that pain is an impairment resulting from the injury and asked for the words “lower extremity dysfunction, and pain”, “pain” and “severe pain”, where appearing in the Applicant’s statement of issues, facts and contentions, to be substituted with the words “loss of cartilage”. Counsel for the Applicant, on further reflection, asked for the change instead to refer to “osteoarthritis” rather than “loss of cartilage” even though, he said, the two terms amount to the same thing.
[14] Applicant’s statement of issues, facts and contentions dated 5 April 2024, paragraph 4.4
On the first day of the hearing, the Applicant’s case distilled to a simple proposition. Counsel contended the Applicant’s injury has resulted in two impairments, one being reduced range of motion and the other being ‘bone on bone’ osteoarthritis. He then submitted the osteoarthritis cannot be assessed under the Comcare Guide and can therefore be assessed under AMA 5 as a ‘gap filler’ contemplated under paragraph 56 of the Comcare Guide. From there, the Applicant contended an assessment of 12% whole person impairment for loss of cartilage can be made under AMA 5, in addition to the assessment for reduced range of motion under the Comcare Guide and the 10% threshold under s 24(7) is met.
On the second day of the hearing, counsel for the Applicant recast his case. He characterised the osteoarthritis as an injury or ailment,[15] rather than a permanent impairment, with reliance upon the Respondent’s acceptance of “post-traumatic osteoarthritis of the left ankle” as a compensable injury.
[15] Pursuant to ss 5A and 5B of the SRC Act, an injury is defined to include a disease suffered by an employee. A disease is defined to include an ailment suffered by an employee.
Counsel for the Applicant then submitted many impairments arose from that injury, including range of motion, pain, deformity, limited ability to walk and loss of cartilage.
In support of his claim that loss of cartilage is an impairment, the Applicant relied on the definition of impairment in s 4 of the SRC Act which states:
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
The Applicant submitted loss of cartilage is the loss of a part of the body and therefore an impairment.
The Applicant then submitted the Comcare Guide does not assess loss of cartilage and Table 17-31 of AMA 5 (which provides for loss of cartilage) can therefore be used to assess compensation for that loss. Table 17-31 assesses 12% whole person impairment for 0 mm cartilage interval (meaning ‘bone on bone’) in the ankle. The Applicant submitted that the use of Table 9.2 in the Comcare Guide to assess impairment to range of motion and deformity of the ankle does not mean it enables assessments for other kinds of impairments - in this case loss of cartilage to the ankle.
Whilst other impairments were raised as possibilities, the Applicant made clear he relied on loss of cartilage (in addition to loss of range of motion which he accepted can be assessed under Table 9.2)) as the additional impairment suffered for the purposes of his claim for compensation under ss 24 and 27. The Applicant therefore reverted to “loss of cartilage”, rather than osteoarthritis, as the claimed impairment that, he said, cannot be assessed under the Comcare Guide and should therefore be assessed under AMA 5.
In support, the Applicant relied on the AAT’s decision in Blandon and Comcare (Blandon)[16] which sets out submissions made by Mr Anforth of counsel on behalf of the applicant in that case. In particular, counsel for the Applicant in this case adopted Mr Anforth’s submission that “the role of the Guide is limited to the quantification of the impairment. It is not the role of the Guide to define what impairment will and will not be compensated.”[17]
[16] [2019] AATA 3277
[17] [2019] AATA 3277 at [139]
Counsel for the Applicant relied on the AAT’s acceptance of “the thrust” of Mr Anforth’s submission. The AAT said:
Having determined that there is an injury which gives rise to impairments, the essential challenge facing a decision-maker is to determine how they should be measured, not whether individual tables are fit for purpose. It is quite logical that the scheme should default to clinical judgement where the tables are inadequate to make that determination.[18]
[18] [2019] AATA 3277 at [141]
The Applicant accepted, in the context of the AAT’s observations in Blandon, that recourse to AMA 5 can occur only where there is a ‘gap’ in the assessment of permanent impairment rather than a quantitative inadequacy.

Counsel for the Applicant also adopted, by way of submission, Mr Anforth’s “suggested approach” at paragraph 211 of Mr Anforth’s Practitioner’s Guide[19] written “to assist practitioners in running an application on behalf of an injured employee”.[20]
[19] Mr Anforth’s Practitioner’s Guide is published in Peter Sutherland, Annotated Safety, Rehabilitation and Compensation Act 1988 (12th edition)
[20] Practitioners Guide at [1]
Counsel for the Applicant relied in particular on paragraph 211 (d) which states:
It is not open to the authors of the [Comcare] Guide to decide to compensate only some kinds of permanent impairment and not others, or to automatically relegate some kinds of impairment to below the 10% threshold for compensability no matter how severe the impairment is. In Re Halliday and Comcare (1994), the Tribunal considered the meaning of “impairment” and concluded:
Consequently, there will be an impairment of a part of the body or a bodily system or function if it has been damaged in the sense that its usefulness or value has been diminished or if it malfunctions in the sense that it fails to perform normally or properly. We do not consider that we should “read down” the definition of an impairment so that it refers only to those limitations set out in the Guide. (at 19 AAR 441).
Counsel for the Applicant relied also on paragraph 211 (h) which he described as “bang on point”. Paragraph 211 (h) states:
The relevance of a Table turns on the correlation between the kinds of impairment under assessment and the terms of the Table. The mere fact that a Table pertains to some particular part of the body does not mean that it is relevant to the assessment of each and every kind of impairment that can arise in that part of the body. Particular parts of the body have a multiplicity of functions and therefore are capable of hosting a multiplicity of impairments in respect of partial losses of use. See Robson v MRCC [2013] FCAFC 101, where the Full Federal Court held that a PTSD and major depressive disorder were separate injuries.
The Applicant relied also on a decision of the AAT in Coulter and Comcare (Coulter)[21] where the AAT found, with reliance on an earlier decision in Re Pavic and Comcare (Pavic),[22] that where the Comcare Guide does not provide a means of assessing the degree of impairment, which I took to mean a reference to the language in section 24(5), assessment can be made under the American Medical Association’s Guides.[23]
[21] [2005] AATA 874
[22] (1996) 45 ALD 409
[23] [2005] AATA 874 at [43]

The Respondent’s submissions

The Respondent submitted the impairment or impairments to the Applicant’s left ankle can be assessed under Table 9.2 of the Comcare Guide. It noted the evidence of Dr Dixon and Dr Kevat, both of whom made an assessment under Table 9.2. Dr Dixon assessed it to be 7%. Dr Kevat assessed it to be 3%.
Accordingly, the Respondent submitted, paragraph 56 of the Comcare Guide is not applicable because the Applicant’s impairment is of a kind that can be assessed under the Comcare Guide.
The Respondent submitted that subjective questions of fairness, sufficiency or quantitative inadequacy of an assessment under the Comcare Guide do not arise. The test under paragraph 56 is whether the impairment “is of a kind that cannot be assessed” (emphasis added) under the Comcare Guide. The Respondent cited Slattery v Comcare (Slattery)[24] and Edwards and Comcare (Edwards)[25] in support.
[24] [2010]) AATA 56
[25] [2001] AATA 522
In Slattery, referring to the paragraph on which the Respondent relied, the AAT said:
.. if use of the relevant table simply results in the applicant not meeting the statutory threshold because the person's level of impairment is below 10 per cent, that is not a sufficient reason to use the AMA Guide. Nor is it sufficient, for recourse to the AMA Guide, that the Approved Guide is capable of providing an assessment but the assessment is inadequate or unfair. Drawing the line between deciding that there is no table which adequately assesses impairment and that the use of the Guide’s tables produces an unfair or inadequate result, requires careful analysis of the major and minor criteria listed in the relevant table. (citations omitted)[26]
[26] [2010] AATA 56 at [36]
In Slattery, the Tribunal went on to observe:
The Tribunal notes that Table 9.10 of the Approved Guide, dealing with elbows, relates to ‘range of motion of the elbows’, not grip strength. While the major criteria for Table 9.14 are ‘digital dexterity’ and ‘use of extremity for personal care’, and minor criteria include ability to lift, there is no reference to grip strength.
Mr Slattery does not have major problems with digital dexterity, nor does his elbow injury restrict his personal care. However, Mr Slattery does have problems with some weight lifting, a minor criteria in Table 9.14, but this is apparently a measure of arm function rather than hand function. The criterion does not address the capacity to handle and grip heavy objects, as in holding down alpacas while injecting or shearing them, or nursing a baby while manipulating the special teat on a bottle for feeding. Neither Table 9.10 nor Table 9.14 measures grip strength. In other words, there is a gap in the coverage of the Approved Guide in relation to this aspect of impairment due to elbow injury. (citations omitted)[27]
[27] [2010]) AATA 56 at [39]-[40]
Where the AAT was satisfied “a gap in coverage has been identified”, in the sense that the Comcare Guide did not cover Mr Slattery’s loss of grip strength, it found the AMA Guide should be used to assess that impairment and remitted the matter for reassessment using AMA 5.[28]
[28] [2010]) AATA 56 at [41] and [49]
In Edwards, the AAT considered on review an injury described as “a Grade 4 dislocation of the acromio-clavicular joint of the right shoulder”. Arising from that injury, the agreed medical assessment of whole person impairment resulting from the injury was 5% impairment under Table 9.1 of the Comcare Guide and 0% under Table 9.4. Whilst agreeing with those assessments, one of the assessing orthopaedic surgeons described the tables as “totally inadequate in their representation of disability.” On review, the AAT nevertheless affirmed the decision to deny compensation for permanent impairment stating –
.. it seems to me that the Applicant’s impairment is capable of being assessed under Tables 9.1 and 9.4 of the Guide albeit that such assessment is inadequate to properly compensate the Applicant.[29]
[29] [2001] AATA 522 at [19]
The Respondent relied on paragraph 20 in Edwards, in support of its submission that where an impairment can be assessed under the Comcare Guide, inadequacy of assessment is not enough to depart from it. In paragraph 20, the AAT stated:
Here, as stated above, the Applicant’s impairment can be assessed according to the Guide albeit such assessment is unfair, unjust and does not properly reflect the impairment and pain and suffering occasioned to the Applicant.
In response to the Applicant’s final position that loss of cartilage is an impairment that cannot be assessed under the Comcare Guide, the Respondent observed that loss of cartilage is, from a medical perspective, osteoarthritis. In lay terms, loss of cartilage causes joints to be ‘bone on bone’, that being an injury described as osteoarthritis. They are, as the Respondent pointed out using counsel for the Applicant’s words, ‘the same thing’.
The Respondent then relied on paragraphs 9 and 26 of the Comcare Guide which state:
9. This Guide, like the previous editions, is, for the purposes of expressing the degree of impairment as a percentage, based on the concept of ‘whole person impairment’. Subsection 24(5) of the SRC Act provides for the determination of the degree of permanent impairment of the employee resulting from an injury, that is, the employee as a whole person. The whole person impairment concept, therefore, provides for compensation for the permanent impairment of any body part, system or function to the extent to which it permanently impairs the employee as a whole person.
..
26. In the SRC Act, ‘impairment’ means ‘the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function’ (subsection 4(1)). The term relates to the health status of an individual and includes anatomical loss, anatomical abnormality, physiological abnormality, and psychological abnormality. The degree of impairment is assessed by reference to the impact of that loss, damage or malfunction by reference to the functional capacities of a normal healthy person.
With reliance on paragraphs 9 and 26, the Respondent submitted that assessment of the degree of permanent impairment resulting from an injury needs to be done not by reference to the loss of a part of the body per se (in a manner akin to a table of maims) but “by reference to the functional capacities of a normal healthy person.” It is necessary, therefore, to look at the “impact” of the loss (in this case, loss of cartilage) not simply that there is the loss. Once that is done, the Respondent submitted, the impact can be assessed under Table 9.2 and there is, therefore, no basis to assess instead under AMA 5.

Consideration

Under s 14 of the SRC Act, Comcare “is liable to pay compensation in accordance with [the SRC] Act in respect of an injury suffered by an employee if the injury results in … impairment” (emphasis added).
Regarding the operation of s 14, in Wills and Comcare,[30] citing Lees v Comcare,[31] the AAT noted:
There is a long line of authorities dating back over 25 years which have emphasised that section 14 is a threshold provision which only deals with the question of whether Comcare has a liability to make payments in relation to an injury. The content, duration and means of satisfying the liability to pay compensation is to be found and worked out by determinations made under other sections of the Act.[32]
[30] [2024] AATA 1480 at [22]
[31] [1999] FCA 753 at [34]
[32] [2024] AATA 1480 at [22]
As the High Court pointed out in Canute v Comcare (Canute):
[T]he Act does not oblige Comcare to pay compensation in respect of an employee’s impairment; it is liable to pay compensation in respect of “the injury”.[33]
[33] [2006] HCA 47 at [10]
The High Court cited with approval the comment of Hill J in the initial decision of the Federal Court that led to the appeal:
[t]he measure of compensation is determined by reference to percentage impairment. However, the right to compensation is created by the occurrence of an injury.[34]
[34] Canute v Comcare [2005] FCA 299 at [39]
The complications in Canute arising from whether there was one injury or two do not arise in this case. The Respondent accepted the Applicant’s claim for a new injury, namely “degenerative osteoarthritis in left ankle” described for s 14 liability purposes as “post-traumatic osteoarthritis left ankle”. The Applicant’s claims under ss 24 and 25 arise from that injury.
Section 24 of the SRC Act complements s 14 regarding the nexus between injury and impairment.
Section 24(1) renders Comcare liable to pay compensation to the employee in respect of the injury “where [the] injury … results in a permanent impairment” (emphasis added). Sections 24(3), (4) and (5) then apply to determine “the amount of compensation payable”. In particular, for that purpose, s 24(5) requires Comcare “to determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide” (emphasis added).
For the purpose of s 24(5), s 28 of the SRC Act empowers Comcare to prepare the approved Guide. Section 28(1) provides:
(1)  Comcare may, from time to time, prepare a written document, to be called the "Guide to the Assessment of the Degree of Permanent Impairment", setting out:
(a)  criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury shall be determined;
(b)  criteria by reference to which the degree of non - economic loss suffered by an employee as a result of an injury or impairment shall be determined; and
(c)  methods by which the degree of permanent impairment and the degree of non - economic loss, as determined under those criteria, shall be expressed as a percentage. (emphasis added)
As authorised under s 28(1)(a) and (c), the Comcare Guide sets out “criteria by reference to which the degree of the permanent impairment … shall be determined” and “methods by which the degree of permanent impairment ... as determined under those criteria, shall be expressed as a percentage.”
Pursuant to s 28(4), “the provisions of the approved Guide are binding” on Comcare and, on review, the Tribunal. Pursuant to s 24(5), those provisions are therefore used to determine the amount of compensation payable.
Clause 8 of the Comcare Guide notes that prior to 1988, under the Compensation (Commonwealth Government Employees) Act 1971 (repealed), lump sum compensation was paid where an employee “suffered the loss of, or loss of efficient use of, a part of the body or faculty, as specified in a table of maims.”
Clause 9 and following of the Comcare Guide explain that a different approach is taken under the Comcare Guide, which instead expresses the degree of impairment as a percentage based on the concept of ‘whole person impairment’ and, per s 4(5), “the degree of permanent impairment of the employee resulting from [the] injury.” In particular, clause 9 relevantly provides:
The whole person impairment concept, therefore, provides for compensation for the permanent impairment of any body part, system or function to the extent to which it permanently impairs the employee as a whole person (emphasis added).
In Fellowes v Military Rehabilitation and Compensation Commission (Fellowes)[35] the High Court commented on this concept of whole person impairment:
The references to “whole person impairment” that are found in the Guide do not direct attention to the effect of an injury or disease on a particular individual. On the contrary, the effect to be assessed is by reference to the functional capacities of a normal healthy person.[36]
[35] [2009] HCA 38
[36] [2009] HCA 38 at [24]
Arising from this concept of functional impairment and assessment of the degree of permanent impairment resulting from an injury, clause 10 of the Comcare Guide notes s 28(5) of the SRC Act which states:
(5) The percentage of permanent impairment or non - economic loss suffered by an employee as a result of an injury ascertained under the methods referred to in paragraph (1)(c) may be 0%.
Clause 11 confirms this approach:
Whole person impairment is the methodology used in this Guide in accordance with section 28 of the SRC Act and is therefore the methodology by which the degree of permanent impairment of an employee resulting from an injury is expressed as a percentage. While the employee’s impairment resulting from a particular injury is to be assessed against criteria in this Guide by reference to the functional capacities of a normal healthy person, the degree of permanent impairment of that employee resulting from that particular injury may be assessed as:
a) 0% if there is no increase in the employee’s whole person impairment when assessed in accordance with this Guide.
For example, loss of an appendix, hair, blood, skin or (in some cases) damage to a part of the body are ‘impairments’, as defined and (likely) ‘permanent’, as defined, but will likely give rise to a 0% assessment of permanent impairment because the loss or damage has not resulted in any loss of function of the employee by reference to the functional capacities of a normal healthy person.
This concept of degree of impairment of an employee as a whole person by reference to the functional capacities of a normal healthy person, rather than loss or damage to a part of the body as a proxy for impairment akin to a table of maims, is reflected in the relevant provisions of the Comcare Guide. It explains why there is no mention of loss of cartilage as a part of the body, in the same way there is no mention of the loss of any other part of the body that forms the ankle. The same is true for feet and toes (paragraph 231 and Table 9.1), knees (paragraph 240 and Table 9.3) and hips (paragraph 243 and Table 9.4). The same is true for those parts of the body that comprise the upper extremities of the body dealt with in Part II of the Comcare Guide.
Of course, in at least the great majority of cases and loss of cartilage in this case, the loss of or damage to a part of the body results in a functional impairment of some kind which leads to an assessment of the degree of impairment, but the focus is on the impact or consequence of the loss or damage to the person by reference to the functional capacities of a normal healthy person.
Put another way, as explained in clause 26, the Comcare Guide establishes a methodology, pursuant to s 28(1)(c) of the SRC Act, for assessing the degree of permanent impairment arising from the loss of or damage to a part of the body but does not limit the kinds of impairments that can be assessed or narrow the meaning of impairment.
Within that framework of functional capacity, Part 1 of the Comcare Guide dealing with “lower extremities - feet and toes, ankles, knees and hips” provides for loss of functionality of those extremities. Relevant for present purposes, per paragraph 236 quoted above, section 9.2 and Table 9.2 deal with ankles. Table 9.2 assesses:
impairments to range of motion and deformity of the ankle as well as ankylosis.
Ankylosis is defined in the Macquarie Dictionary to mean adhesion, consolidation or union of the bones of a joint. It is not a condition suggested in this case.
Section 9.7, and accompanying Table 9.7, deal with lower extremity function in terms of restrictions on distance the employee can walk and the pace at which they can walk. However, per paragraph 261 of the Comcare Guide, “Table 9.7 cannot be used where the condition causes a reduction in the range of motion of a joint and an assessment can be made under any one or more of Table 9.1, Table 9.2, Table 9.3 or Table 9.4.” In this case, the Applicant acknowledged Table 9.7 cannot be used.[37]
[37] Applicant’s statement of issues, facts and contentions dated 5 April 2024, paragraphs 4.2 and 4.8
This analysis of the SRC Act and the Comcare Guide explains why, in my view, the Applicant’s contention that loss of cartilage cannot be assessed under the Comcare Guide is misconceived.
For the purposes of s 24(1), I accept the Applicant’s osteoarthritis (the injury) has resulted in loss of cartilage (the impairment) in the sense that the loss is an outcome of the injury, even if the osteoarthritis, as the injury, and the loss of cartilage, as the impairment, are one and the same. In many cases, an accepted ‘injury’ as defined in s 5A and an accepted ‘impairment’ as defined in s 4 are one and the same. Given the breadth of the definition of impairment, it is difficult to imagine an injury that would not be an impairment.
I accept the loss of cartilage is permanent, but I am not persuaded that any aspect, function, impact or consequence of that loss cannot be assessed under the Comcare Guide. Put another way, for the purpose of determining the degree of impairment resulting from the injury, I am satisfied the loss of cartilage can be assessed under Table 9.2.
The Applicant does not point to anything, by reference to the functional capacities of a normal healthy person, that cannot be assessed under the Comcare Guide.
Dr Dixon and Dr Kevat assessed the Applicant’s degree of permanent impairment by reference to the Comcare Guide. Neither points to anything that cannot be assessed under the Comcare Guide.
There is no evidence of anything arising from the loss of cartilage that cannot be assessed under the Comcare Guide. Nor can I envisage an impaired or lost function that cannot be assessed under the Comcare Guide, where the Comcare Guide provides for assessment of loss of range of movement, deformity, loss of distance that can be walked and loss of pace. Accordingly, there is no warrant for assessing under AMA 5.

The Applicant’s reliance on paragraph 225 of the Comcare Guide is misconceived. The “condition” is the loss of cartilage which has resulted in the reduction in the range of movement of his ankle which can be and has been assessed under Table 9.2. As mentioned, the Applicant does not point to anything, by reference to the functional capacities of a normal healthy person, that cannot be assessed under the Comcare Guide.
I acknowledge the condition, in all likelihood, has also caused a reduction in distances the Applicant can walk and his walking pace, but (as mentioned), whilst they are assessable, I am precluded from taking those functional impairments into account.
I also note that Table 17-31 in AMA 5 does not assess or purport to assess a loss of function of some kind arising from loss of cartilage that cannot be assessed under the Comcare Guide. Rather, it assesses loss in a different way because, in the opinion of the authors, functional impairment is better assessed by reference to the extent of the loss of cartilage rather than by reference to the consequences of it which (in their opinion) can vary from person to person. The authors wrote:
Whilst there are some individuals with arthritis for whom loss of motion is the principal impairment, most people are impaired more by pain and sometimes weakness, but they still can maintain functional ranges of motion, at least in the early stages of the process. Range-of-motion techniques are therefore of limited value for estimating impairment secondary to arthritis in many individuals.
The best roentgenographic indicator of disease stage and impairment for a person with arthritis is the cartilage interval or joint space.[38]
[38] AMA f5, Chapter 17, section 17.2h Arthritis, page 544
That the Comcare Guide and AMA 5 are looking at the same impairment but taking different approaches to how it should be assessed also exposes the flaw in the Applicant’s claim of their being two impairments. To assess loss of range of movement under the Comcare Guide and, in addition, loss of cartilage under AMA 5, would materially amount to assessing the same impairment twice.
It is not open to the Respondent, or the Tribunal on review, to enter the debate upon which opinion or approach should be preferred. Pursuant to s 28(5) of the SRC Act, the approach taken in the Comcare Guide is binding. So too, therefore, is the assessment of the degree of impairment under the Comcare Guide which, in this case, is less than 10%.
The AAT’s decision in Blandon does not assist the Applicant’s case. That case, and Comcare v Broadhurst[39] on which the AAT in Blandon relied, involved consideration of chronic pain as a syndrome and as a separate impairment arising from the accepted injury. Those two cases addressed the circumstance that the Respondent’s approved Guide as then in force did not contain specific provisions for the assessment of chronic pain “as such”.[40] That is not this case. The Applicant withdrew pain as a claimed stand-alone impairment resulting from the injury and does not point to any consequence, impact or loss of function that cannot be assessed.
[39] [2011] FCAFC 39
[40] Comcare v Broadhurst [2011] FCAFC 39 at ]23] cited in Blandon and Australian Capital Territory [2019] AATA 3277 at [142]
The AAT’s decision in Slattery highlights the point. The AAT remitted the matter for assessment of loss of function, namely grip strength, under the AMA because the loss of that function could not be assessed using the Comcare Guide.
Paragraphs 211(d) – (h) of the Practitioner’s Guide on which the Applicant relied are consistent with this analysis. Those sub-paragraphs highlight the proposition, which I accept, that a part of the body can have a “multiplicity of functions” and that loss of the part can therefore result in a “multiplicity of impairments”. By this, it is implicit the author is referring to impairments to a function of the body resulting from the loss of the part. If the Comcare Guide can be used to assess some of those impairments, but not all, those that cannot be assessed under the Comcare Guide are still compensable and can be assessed under AMA 5. I accept that proposition but, in this case, no lost or impaired function resulting from the loss of cartilage that cannot be assessed under the Comcare Guide has been identified.
I turn to the second issue: inadequacy of assessment.
Views may reasonably differ on whether the assessment the Applicant’s whole person impairment, expressed as a percentage, resulting from his injury is appropriate, sufficient or adequate. I respect Dr Dixon’s opinion that 7% under the Comcare Guide is inadequate.
I agree with Dr Kevat’s comment that “rating scales are ultimately arbitrary instruments which provide an approximation of the reality of the subject’s impairment for legal purposes.”
These observations are consistent with the result. As the Applicant accepts, per s 28(4), “the provisions of the approved Guide are binding” on the Respondent and on the Tribunal. An opinion that the assessment of the Applicant’s degree of impairment under the Comcare Guide, expressed as a percentage, is insufficient or inadequate is not a basis to depart from it. Where loss of cartilage can be assessed, as I am satisfied it can, the assessed percentage is binding.
The decision under review is affirmed.
I certify that the preceding 100 paragraphs are a true copy of the reasons for the decision herein of Senior Member McCarthy.

........................[SGD]..............................................

Tribunal Officer

Date: 6 March 2025

Dates of hearing:

21 and 22 November 2024

Counsel for the Applicant:

Applicant’s Representative:

A Schofield

Carroll & O’Dea Lawyers

Counsel for the Respondent:

Solicitors for the Respondent:

C Clark

McInnes Wilson Lawyers