Collett and Telstra Corporation Limited (Compensation)

[2016] AATA 953

Collett and Telstra Corporation Limited (Compensation) [2016] AATA 953 (29 November 2016)

Division	GENERAL DIVISION
File Number	2015/2374
Re	Neil Collett
APPLICANT
And	Telstra Corporation Limited
RESPONDENT

DECISION

Tribunal	Egon Fice, Senior Member
Date	29 November 2016
Place	Melbourne

The Tribunal affirms the decision under review.

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

Egon Fice, Senior Member

Catchwords

WORKERS’ COMPENSATION - permanent impairment claim in respect of right wrist injury – further diagnosis of complex regional pain syndrome type 1 – proper classification of impairment of right wrist – no permanent impairment resulting in an increase of more than 10% whole person impairment – no impairment grading under Comcare Guide able to be allocated to complex regional pain syndrome type 1 – lump-sum compensation in respect of permanent impairment and non-economic loss – no further compensation awardable – decision affirmed

Legislation

Safety, Rehabilitation and Compensation Act 1988 ss. 24, 25, 27

Cases

Canute v Comcare (2006) 226 CLR 535

Secondary Materials

Comcare Guide (2^nd Edition)

Comcare Guide (Edition 2.1)

REASONS FOR DECISION

Egon Fice, Senior Member

29 November 2016

1. Mr Neil Collett first suffered an injury to his right wrist on 3 January 1991.  It appears Mr Collett aggravated that injury on 17 September 1992.  At that time, he was an employee of The Australian and Overseas Telecommunications Corporation Ltd, now known as Telstra Corporation Ltd (Telstra).  Mr Collett was later found to have fractured his scaphoid and Telstra accepted liability to pay compensation in respect of that injury.  Mr Collett ceased being an employee of Telstra on 5 December 1997.

2. Dr Murray J Stapleton, a hand and plastic surgeon, examined Mr Collett on 15 September 2003 and provided a written report dated 17 September 2003.  Dr Stapleton was of the opinion that Mr Collett’s condition was permanent and that he would never have a normal wrist.  He suggested Mr Collett would require at least a partial or even a complete wrist fusion.

3. Dr Stapleton’s opinion has turned out to be entirely correct.  Despite having multiple subsequent surgical procedures over many years, Mr Collett never recovered complete use of his right wrist and continues to experience pain.

4. Mr Collett subsequently lodged a number of claims for permanent impairment pursuant to ss. 24, 25 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).  The first of those claims was lodged on or about 19 April 2005.  On 9 November 2006 Telstra’s insurer, Allianz Australia Insurance Ltd (Allianz), made an interim determination in which it accepted that Mr Collett had a permanent impairment to his right wrist which equated to at least 10% whole person impairment (WPI).  Despite a request by solicitors then acting for Mr Collett to finalise his impairment claim, Allianz declined to do so due to recent surgery that Mr Collett had in August 2006.  On reconsideration, that determination was affirmed.

5. On 28 August 2007 Allianz determined that Mr Collett’s WPI in respect of his wrist injury was 20% under Table 9.1 of the Comcare Guide (2^nd Edition).  

6. In September 2010 Mr Collett’s solicitors informed Allianz that Mr Collett now suffered depression arising out of his wrist injury.  In a letter dated 13 August 2010 Allianz notified Mr Collett’s solicitors that his claim for depression had been denied.  Mr Collett sought review of that decision.  In a letter dated 8 September 2010 Allianz informed Mr Collett that the determination made on 13 August 2010 was affirmed.

7. In a letter dated 20 October 2010 Mr Collett’s solicitors informed Allianz that Mr Collett had suffered a significant deterioration to his right wrist condition and lodged a further claim for permanent impairment and non-economic loss pursuant to ss. 24 and 27 of the SRC Act. In his claim form Mr Collett said he suffered constant pain and aching. In a letter dated 31 January 2011 Allianz notified Mr Collett that Telstra was not liable to pay further compensation to him under ss. 24 and 27 of the SRC Act.

8. Mr Collett’s solicitors lodged a further claim for permanent impairment and non-economic loss in respect of his claim for depression secondary to the accepted right wrist condition.  This claim was accompanied by a report from Dr David Weissman, a consultant psychiatrist. In a letter dated 10 May 2011 Allianz again rejected Mr Collett’s claim. 

   
   

   Mr Collett’s solicitors sought a review of that decision.  On 22 July 2011 Telstra informed Mr Collett that it affirmed the determination dated 10 May 2011.  On 27 July 2011 Mr Collett’s solicitors lodged an application with this Tribunal seeking a review of Telstra’s decision.

9. On 13 October 2011 the parties consented to a decision being made in accordance with the terms provided to the Tribunal.  In essence, the parties agreed that Mr Collett had a 10% WPI under Table 5.1 of the 2^nd Edition of the Comcare Guide in respect of adjustment disorder with mixed anxiety and depressed mood.  The parties also agreed to an assessment for non-economic loss resulting from the 10% WPI.

10. On 4 April 2014 Mr Collett’s solicitors lodged another claim for permanent impairment due to his right wrist injury, Mr Collett having undergone further treatment in the meantime.  That application was lodged together with a report prepared by Dr Peter Blombery, a consultant physician.  Dr Blombery diagnosed Mr Collett as having complex regional pain syndrome, type 1 (CRPS 1).  He described Mr Collett’s prognosis for recovery as poor and was of the opinion there would be no significant change of his level of disability in the foreseeable future.  Dr Blombery calculated Mr Collett’s WPI due to his right wrist injury to be 42%.  In a letter dated 14 May 2014 Dr Blombery revised his calculation, concluding Mr Collett had a WPI of 36%.

11. After obtaining a report from Dr Damian Ireland, an orthopaedic hand surgeon, and a further supplementary report which was provided on 25 February 2015, Telstra informed Mr Collett in a letter dated 25 March 2015 that it was not liable to pay lump-sum compensation in respect of permanent impairment and non-economic loss.  Telstra reached that determination based on Dr Ireland’s findings and an assessment of a WPI due to his right wrist injury of 26%.  Although Dr Ireland had calculated a combined WPI of 20%, Telstra acknowledged that the correct WPI was 26%.  Because that was not an additional 10% WPI on top of the previous award of 20% for his right wrist injury, no further compensation was payable for additional permanent impairment.

12. Following reconsideration of that decision, in a letter dated 28 April 2015, Telstra affirmed the determination made on 25 March 2015.  On 12 May 2015 Mr Collett lodged an application with this Tribunal seeking review of Telstra’s decision made on 28 April 2015.

13. Essentially, the issue I am required to determine is whether Mr Collett’s WPI due to his right wrist injury has increased by 10% or more since 2011.  At that point in time, the parties agreed that Mr Collett had a WPI of 20%.  Furthermore, according to Mr Collett, he now experienced an increase in the level of pain and in February 2014 Dr Blombery diagnosed CRPS 1.  That diagnosis was supported by Dr Barry Rawicki, a physician in rehabilitation medicine.  Since January 2013, Dr Rawicki had treated Mr Collett with a number of stellate ganglion blocks. 

    COMPENSATION FOR PERMANENT IMPAIRMENT

14. Section 24 of the SRC Act deals with compensation for injuries resulting in permanent impairment. Relevantly, it provides:

    (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)  …

    (3)  Subject to this section, the amount of compensation payable to the employee is such an 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.

    …

15. Interim payments may be made in respect of a permanent impairment provided that the degree of impairment is equal to or more than 10%.

16. Section 25 of the SRC Act deals with the interim payments of compensation. For the purposes of Mr Collett’s claim, the relevant provisions are:

    (1)  Where Comcare:

    (c)makes a determination that an employee is suffering from a permanent impairment as a result of an injury; and

    (d)is satisfied that the degree of the impairment is equal to or more than 10% but has not made a final determination of the degree of impairment;

    Comcare shall, on the written request of the employee made at any time before the final determination is made, make an interim determination of the degree of permanent impairment under section 24 and assess the amount of compensation payable to the employee.

    …

    (3) Where, after an amount of compensation has been paid to an employee following the making of an interim determination, Comcare makes a final determination of the degree of permanent impairment of the employee, there is payable to the employee an amount equal to the difference (if any) between the amount payable under section 24 on the making of the final determination and the amount paid to the employee under this section.

    (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.

    …

    THE COURSE OF MR COLLETT’S WPI

17. Given that as at 28 August 2007, Mr Collett had been assessed as having a WPI of 20% under Table 9.13 of the Comcare Guide dealing with Upper Extremity and that a final determination was made at that point in time, any additional claims are required to meet the 10% WPI threshold for an injury.  Although Mr Collett also lodged a claim for adjustment disorder with mixed anxiety and depressed mood, and the parties agreed to a 10% WPI for that injury under Table 5.1, that percentage impairment is not aggregated with the WPI which results from his right wrist injury.  The High Court of Australia in Canute v Comcare (2006) 226 CLR 535 made that clear. The Court said, at [37]:

    … But, as indicated earlier in these reasons, s 24(5) of the Act imposes a duty upon Comcare to determine “the degree of permanent impairment of the employee resulting from an injury”. It is the occurrence of “an injury” which both actuates and defines the ambit of Comcare’s duty pursuant to s 24 the Act. Once that duty has been performed, subss (3) and (4) of s 24 operate, in a self-executing way, to quantify the amount of compensation payable by Comcare. That amount is payable in satisfaction of Comcare’s liability which arises “in respect of the injury” under s 24(1). The Act only adopts the “whole person impairment” approach with respect to permanent impairments resulting from each “injury”.

18. It follows that in order for Mr Collett to be eligible to receive further amounts of compensation in respect of his right wrist injury, his WPI as a result of that injury must be 30% or above.

19. I should also say something about complex regional pain syndrome, which Mr Collett claims has also developed as a result of his right wrist injury.  Provision is made for this condition under Division 1, Part II of the Comcare Guide (Edition 2.1) which deals with the upper extremities being hands and fingers, wrists, elbows and shoulders.  Chapter 9.13 deals with neurological impairments affecting the upper extremities.  CRPS 1 and CRPS II fall under this chapter.  Figure 9-E sets out the objective diagnostic criteria for CRPS and Figure 9-F the impairment grading for CRPS.  If I were to find that Mr Collett has CRPS 1, I expect that I would be required to treat that as an impairment arising out of his right wrist injury.  A separate score would be allocated to that functional impairment in accordance with the Comcare Guide combined values instructions.

20. Following assessment, Mr Collett continued to experience pain in his right arm and hand.  Further treatment from Dr Rawicki provided some temporary relief but the pain returned.  Dr Blombery and Dr Rawicki subsequently diagnosed Mr Collett as having CRPS 1.

21. Mr Collett was re-assessed by Dr Blombery on 30 January 2014 who determined his WPI from his right wrist at that time was 42%.  Dr Blombery also said:

    There is no impairment available for complex regional pain syndrome as he does not fulfil the bizarre criteria issued by Comcare for diagnosis of this disorder.

22. When asked to explain how he arrived at his assessment during the hearing, Dr Blombery agreed he had made an error in his previous calculations and concluded that Mr Collett’s WPI should now be 36%.

23. Telstra then had Mr Collett examined by Dr Ireland on 8 October 2014.  Dr Ireland described Mr Collett as having a full range of active motion at his elbow and limited forearm rotation which measured 30° of supination and 60° of pronation.  At the right wrist, Dr Ireland described arthrodesis in 5° of extension and neutral radial and ulnar deviation.  The distal radioulnar joint was stable.  He found no tenderness or crepitus through either active or passive forearm rotation.  Dr Ireland noted no obvious swelling or deformity of the right hand and no wasting of the intrinsic muscles or trophic skin changes at finger pulp.  He said there was no temperature difference or colour difference between the two hands and the temperature gradient along the right upper extremity was normal.  There was no appreciable difference in perspiration at the finger pulps between the two hands or of nail or head growth.  He concluded that there was no clinical evidence of complex regional pain syndrome.

24. Dr Ireland came to the same conclusions as Dr Blombery regarding WPI for the right wrist and right forearm.  That was 18% for the right wrist and 2% for the right forearm, giving a combined WPI of 20%.  The significant difference between Dr Ireland and Dr Blombery was the degree of loss of motion of finger joints.  Dr Ireland did not detect any loss of motion at any of the finger joints and therefore found that loss of digital joint movement should not be included as an assessable impairment.  By way of contrast, Dr Blombery allocated 6% WPI for each of the second and third fingers and 3% WPI for the fourth and fifth fingers which, when combined, added a further 12% WPI for the second and third fingers and 6% WPI for the fourth and fifth fingers.  When the combined values chart is applied sequentially as is required by the Comcare Guide, that results in a WPI of 33%.

25. Dr Ireland provided another report dated 25 February 2015 in which he explained why his conclusions regarding the loss of finger joint motion differed from those of Dr Blombery.  Dr Ireland said:

    When I examined Mr Collett on 8 October 2014 he demonstrated a full range of active motion of all joints of all five digits of the right hand as stated in my earlier report.  He demonstrated this full range of motion without any discomfort.  Although he was reluctant to actively complete full range of motion on request it was noted throughout the examination and the interview that he demonstrated a full range of motion.  It is for this reason that in my opinion there is no rateable impairment for restricted motion of any of the small joints of any of the five digits of the right hand.

26. Dr Ireland also recorded that he did not consider grip strength to produce a rateable impairment because, although the test was administered using a Jamar dynamometer grip meter, nothing was registered.  According to Dr Ireland, that indicated a voluntary inhibition of true performance.

27. Following Dr Ireland’s reports, Mr Collett was again re-examined by Dr Blombery who provided a report dated 10 August 2015.  Having read Dr Ireland’s report regarding the range of active motion of the fingers of Mr Collett’s right hand, he paid particular attention to that issue.  Dr Blombery then reported:

    In regard to movement of the fingers, I compared and contrasted the movements that I observed when I asked him specifically to move his fingers, to those that I observed as he was sitting and moving during the course of the consultation in a spontaneous manner.

    On formal examination, he was only able to flex the metacarpophalangeal joints to 10°, the proximal interphalangeal joints to 70° and the distal interphalangeal joints to 30°.  He was unable to flex his fingers into the palm.

    When I observed him spontaneously, I noted that his fingers flex more than they did on the course of examination.  His ring and middle fingers tended to flex more than his index and middle fingers.  My best estimate of the observed range of movement when he was being formally examined was that he is metacarpophalangeal joints flex to 30°, his proximal interphalangeal joints to 90° and his distal interphalangeal joints to 30°.

28. Dr Blombery also said that on examination, his right hand was bluer than the left and this was quite marked and the fingers of the right hand were more swollen than those of the left.  The dorsum of the right hand was 1.5° to 2° cooler than the left hand.  There was similar sweating on both sides.

29. Dr Ireland re-examined Mr Collett 9 December 2015, providing a brief report of the same date.  He said the following about Mr Collett’s fingers on the right-hand:

    Although Mr Collett was reluctant to actively flex the digits, he was able to fully extend them all.  When the joints were tested individually with passive range of motion which was quite pain-free, there was a detectable loss of motion at the right thumb interphalangeal joint and the right index metacarpophalangeal joint and at the right middle finger metacarpophalangeal joint.  There was a full range of motion of all other joints of all five digits.  At the thumb IP joint the range of motion measured 20° extension to 40° flexion.  At both the index and middle finger metacarpophalangeal joints the range was 20° extension to 60° flexion.  This restriction restricted motion was not noted at my previous examination of Mr Collett in 2014.

30. Dr Ireland also said the following about signs of CRPS 1:

    On examination of the right upper extremity at the hand there was no obvious swelling or deformity.  There was no temperature difference between the two hands and there was no abnormal temperature gradient along the right upper limb.  There was symmetrical nail and hair growth on both hands.

31. Although Dr Ireland was uncertain as to whether he was required to vary his previous assessment using the American Medical Association 4^th or 5^th edition Guides as opposed to the Comcare Guide Edition 2.1, he was nevertheless of the opinion that the WPI using the Comcare Guide 2.1 would not approach or exceed 30% WPI.

32. In a brief letter dated 13 January 2016 Dr Ireland used the Comcare Guide, Edition 2.1, to recalculate Mr Collett’s WPI, finding that 1% should be added at the thumb interphalangeal joint which in turn, when added to the impairments for the index and middle fingers at 4%, provided a 5% impairment of the hand.  When combined with 20%, that provided a WPI of 24%.  

33. The differences between Dr Blombery and Dr Ireland regarding the impairments which result from a limitation to the flexion of Mr Collett’s fingers on the right-hand arise essentially for the reasons which follow. 

1. Both doctors made identical calculations regarding the right wrist and the right forearm.  Furthermore, both doctors observed that, whether voluntarily or involuntarily, Mr Collett’s attempts at flexing his fingers in the course of formal examination were probably restricted.  Dr Blombery described a subconscious effort by Mr Collett to exaggerate the disability of the fingers of the right hand on examination.  He therefore resorted to observations made during casual examination in the course of the consultation.  Dr Ireland was more critical stating that Mr Collett was reluctant to actively flex the digits in his right hand.  He described Mr Collett as exhibiting voluntary inhibition of true performance when asked to use the Jamar dynamometer to measure his right-hand grip strength.  He could not record any values on that device.

2. The second significant difference arose from the diagnosis of CRPS 1 although, because Dr Blombery did not allocate a WPI for this condition, it does not affect the outcome.  I should briefly explain why Dr Blombery referred to the bizarre diagnostic criteria for CRPS.  Figure 9-E sets out the objective diagnostic criteria for CRPS.  Introductory paragraph 9.13.3 states:

   The criteria listed in Figure 9-E predicate a diagnosis of CRPS upon a preponderance of objective findings that can be identified during a standard physical examination and demonstrated by radiographic techniques.  At least eight of these findings must be present concurrently for a diagnosis of CRPS.  Signs are objective evidence of disease perceptible to the Examiner, as opposed to symptoms, which are subjective sensations of the individual.

3. There are 11 discrete signs listed under Figure 9-E of the Comcare Guide.  Even if I were to accept the signs observed by Dr Blombery and Dr Rawicki, no more than four signs at any time appear to have been observed.  In those circumstances, irrespective of what Dr Blombery or Dr Rawicki said about CRPS, it would be incorrect to allocate any impairment grading for that condition.

4. In cross-examination, Mr J Wallace of counsel, who appeared on behalf of Telstra, asked Dr Blombery whether a goniometer (an apparatus used to measure joint movements and angles) was required to measure the degree of flexibility of the fingers.  Dr Blombery agreed it was.  Nevertheless, Dr Blombery agreed that he was required to estimate the degree of flexibility which Mr Collett had in the fingers of his right hand.  With respect to Dr Blombery, even with his vast experience in this type of work, an estimate obtained from informal observations is inherently problematic.  It would be naive of me to consider that Mr Collett was unaware that his right hand was under observation at all times while he was with Dr Blombery.  Even if he was unaware, such an estimate is unlikely to produce an accurate result.

5. I should also briefly mention that Telstra put into evidence a photograph obtained from Mrs Collett’s Facebook profile page which disclosed Mr Collett at a fancy-dress party, dressed as a gangster.  He is holding in both hands a small automatic weapon, I assume a toy.  Being left-handed, Mr Collett is using his left hand on the trigger grip while the right-hand is facing in the reverse direction on the small front pistol grip.  Other than the first finger, the remaining three fingers appear to be fully flexed.  While I agree with the submissions Mr Wallace made regarding what the picture discloses, that by itself, does not lend significant weight to Telstra’s claim.  I place little weight on that evidence.

6. Given the difficulties encountered in obtaining accurate flexion measurements by Dr Blombery and Dr Ireland, I find it is not safe for me to proceed on the basis of the informal observations made by Dr Blombery.  Both doctors encountered difficulties in obtaining accurate measurements on formal investigation.  While I am unable to make a finding regarding the appropriate WPI which should be allocated to Mr Collett at the present time, the best that I can say is that it is between 24% and 33%.  Even if I were to take the midpoint of the difference, it would not result in an increase of 10% or more WPI of Mr Collett’s right hand.

   CONCLUSION

7. Although two medical practitioners have diagnosed Mr Collett as having CRPS 1, I am only able to allocate an impairment rating to that condition where there are at least eight clinical signs of that affliction.  The evidence before me does not disclose eight clinical signs and therefore no impairment grading can be applied under the Comcare Guide.

8. As for the flexion of the fingers on his right hand, because Mr Collett has, effectively, not allowed either medical practitioner to accurately assess the degree of flexion for each of those fingers, I find that, on the balance of probabilities, Mr Collett does not have an increase of 10% or more WPI.  Therefore no further compensation can be paid to him.

9. I find that the decision made by Telstra on 28 April 2015 denying liability to pay Mr Collett further compensation under ss. 24 and 27 of the SRC Act was the correct decision. I affirm that decision.

43.     I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member

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

Associate

Dated 29 November 2016

Date of hearing	7 July 2016
Advocate for the Applicant	Annette Collett
Counsel for the Respondent	John Wallace
Solicitors for the Respondent	Clarke Legal