Cardona and Comcare
[2000] AATA 207
•10 February 2000
DECISION AND REASONS FOR DECISION [2000] AATA 207
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V1999/1096
GENERAL ADMINISTRATIVE DIVISION )
Re PETER CARDONA
Applicant
And COMCARE
Respondent
DECISION
Tribunal Mrs H. E. Hallowes, Senior Member Mr I. L G. Campbell, Member Dr P. Fricker, Member
Date10 February 2000
PlaceMelbourne
Decision For reasons given orally at the hearing, the reviewable decision dated 28 July 1999 is varied such that the applicant's entitlement to compensation under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 is to be recalculated taking into account his 10% impairment under Table 9.1 of the Guide to the Assessment of the Degree of Permanent Impairment with respect to his right shoulder. The respondent shall pay the applicant's reasonable party/party costs and disbursements in accordance with the Administrative Appeals Tribunal's Practice Direction dated 18 May 1998.
…..(Sgd) H. E. Hallowes.……
Senior Member
CATCHWORDS
COMPENSATION –right shoulder injury – impairment – whether 5 or 10 percent under the Guide
Administrative Appeals Tribunal Act 1975 ss. 37, 43(2A)
Safety, Rehabilitation and Compensation Act 1988 ss. 24, 27, 28
The Guide to the Assessment to the Degree of Permanent Impairment Table 9
REASONS FOR DECISION
10 February 2000 Mrs H. E. Hallowes, Senior Member Mr I. L G. Campbell, Member Dr P. Fricker, Member
At the conclusion of the hearing of the above matter on 10 February 2000, the terms of the decision given and the reasons therefor were stated orally. After service upon the applicant of a copy of the decision, the respondent requested the Tribunal to furnish a statement in writing of the reasons of the Tribunal for its decision pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act").
The oral reasons for decision were transcribed by Auscript Pty Ltd. The settled transcript is annexed hereunto and furnished to the applicant and to the respondent as the statement in writing of the reasons for the Tribunal's decision.
The only issue in this matter before the Tribunal was whether Mr Cardona's level of impairment in respect of his right shoulder injury is 5 or 10 per cent pursuant to Table 9.1 of the Guide to the Assessment of the Degree of Permanent Impairment, hereinafter referred to as the Guide, under section 28 of the Safety Rehabilitation and Compensation Act 1988, hereinafter referred to as the Act.
The reviewable decision dated 28 July 1999 varied a determination made on 11 March 1999 to provide that Comcare was liable to pay (a) $16,893.79 pursuant to section 24 of the Act and (b) $12,600.67 pursuant to section 27 of the Act for 15 per cent whole person impairment in respect of "sprained right shoulder, neck and lower back" sustained on 16 August 1993. The Tribunal is satisfied that that decision should be further varied and that Mr Cardona's entitlement to compensation under sections 24 and 27 of the Act should be recalculated to take into account the impairment of his sprained right shoulder, the Tribunal finding that Mr Cardona has a 10 per cent level of impairment with respect to his right shoulder.
The Tribunal had before it the documents lodged pursuant to section 37 of the AAT Act. Ms A. McMahon of counsel who appeared for the respondent at the hearing, referred the Tribunal to a number of Tribunal and Federal Court decisions with respect to the application of the Guide, but, as the Tribunal is delivering this decision with oral reasons on the day of hearing, it will not refer to those decisions which it has taken into account in applying Table 9 of the Guide to Mr Cardona's circumstances. Suffice to say, there was really no dispute between the parties as to the facts in this matter and with respect to Mr Cardona's employment and the injury he suffered in the motor vehicle accident on 16 August 1993. He suffered injury to his lower back, neck and right shoulder. He has been treated by Dr R. Long, general practitioner, who referred Mr Cardona to Mr I. Jones, orthopaedic surgeon, in 1997. As relevant to this proceeding, Mr Jones last saw Mr Cardona on 31 August 1998. His medical report of 19 November 1998, indexed at T42 of the documents, is the most recent medical evidence with respect to the degree of impairment Mr Cardona may have suffered to his right shoulder.
The documents include a medical certificate from Dr Long, dated 24 March 1999, advising:
"Fit for light duties, light lifting only, no road work, no climbing stairs, from 1.4.99 to 1.7.99".
In his medical report dated 19 November 1998, Mr Jones stated so far as relevant:
"This patient was last seen on 31.08.98. …
…In the right shoulder he had a range of flexion of 130 degrees with abduction measured at 120 degrees. External rotation was measured at 90 degrees and internal rotation 30 degrees. Adduction and extension were 30 and 40 degrees respectively.
…I believe that this man may have sustained a mild soft tissue injury to his right shoulder and an injury to one of the discs in his lower back, in the motor vehicle accident in August 1993. …In regard to his right shoulder, he has clinical and radiographic evidence of a mild tear in the rotator cuff which may reflect some ageing in the tendon, but could possibly have been aggravated or caused by the accident he describes and that this accident continues to be a factor in his slightly impaired shoulder function.
…
In regard to the impairment of this patient's right shoulder with respect to the Comcare Guidelines this patient has a ten per cent impairment in his right shoulder. …"
Mr Jones attached his findings with respect to Mr Cardona's range of movement of the right shoulder compared with the normal range of movement under the AMA guidelines, disclosing less than normal range of movement in three out of the six modalities.
Mr Jones gave oral evidence to the Tribunal by telephone. He said that he had no reason to change his written opinion. He had not assessed Mr Cardona's left shoulder. He said he found that Mr Cardona suffered pain and had a loss of range of movement. Clinically, there was a mild restriction of movement. Turning to Mr Cardona's loss of function, he noted that Mr Cardona had reported problems cleaning his car and lifting his arm. Any use of Mr Cardona's arm above shoulder level would aggravate his symptoms. He described the loss as minor and said that Mr Cardona had more than minimal loss of function. Mr Cardona has significant loss of function if only a minimal loss of movement. Mr Cardona is limited in the use of his arm above his shoulder because of the pain he experiences with activity - for example, painting, carpentry or washing the roof of his motor vehicle.
Mr Cardona told the Tribunal that he has suffered from shoulder problems which have continued since the motor vehicle accident. He has ongoing physiotherapy and he takes medication for pain relief. He can wash dishes and clothes but he experiences pain when hanging out the clothes, vacuuming and washing his car, or mowing his lawn. The pain is always there, including when he lies on his right side. Since giving up work, he is doing more around the house and experiencing more pain. When stretching to put on his socks in the morning, he experiences difficulty.
The Tribunal expresses its concern with respect to the introduction and description of level of impairment under Table 9, but being charged with proceeding with as much expedition as possible under the AAT Act, and being satisfied on the evidence before it that Mr Cardona satisfies the description of a 10 per cent level of impairment with respect to his right shoulder, the Tribunal will not express an opinion as to what falls within the description "X-ray changes" under the Table. The Tribunal notes that to fall within 0 or 5 per cent level of permanent impairment the description refers to "loss of function" whereas to fall within a 10, 15, 20 or 30 per cent of permanent impairment, the focus is on "range of movement".
The Tribunal accepts Mr Jones' clinical findings with respect to the loss of range of movement which Mr Cardona experiences in his right shoulder, which falls within less than half the normal range of movement. Mr Cardona has more than minimal loss of function. The evidence of Mr Cardona and Mr Jones clearly supports this finding because Mr Jones said that any use by Mr Cardona of his right arm at or above shoulder height would aggravate his symptoms of pain. The Tribunal notes that Mr Cardona is right hand dominant.
For these reasons the Tribunal varied the reviewable decision.
I certify that the nine (9) preceding paragraphs are a true copy of the reasons for the decision herein of
Mrs H. E. Hallowes, Senior Member
Mr I. L. G. Campbell, Member
Dr P. Fricker, MemberSigned: .....................................................................................
Personal AssistantDate/s of Hearing 10 February 2000
Date of Decision 10 February 2000
Counsel for the Applicant Mr A. Moulds
Solicitor for the Applicant Slater & Gordon
Counsel for the Respondent Ms A. McMahon
Solicitor for the Respondent Sparke Helmore
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