Comcare v Kay

[1997] FCA 1357

FEDERAL COURT OF AUSTRALIA

COMMONWEALTH EMPLOYEES COMPENSATION - Permanent Impairment - Prescribed Guide - Interpretation of - Choice of tables - Overlap of tables - alleged failure of the Tribunal to adjudicate on contested medical evidence as to location of injury for the purposes of determining which impairment table was appropriate - Whether location of injury causing impairment an issue necessary to be determined

Safety Rehabilitation and Compensation Act 1988 (Cth) s 24

Comcare v Tiscay (1992) 16 AAR 241 (followed)

COMCARE v JUDY ADELE KAY
AG 33 OF 1997

FINN J
CANBERRA
3 DECEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	AG 33  of   1997

BETWEEN:	COMCARE APPLICANT
AND:	JUDY ADELE KAY RESPONDENT
JUDGE:	FINN J
DATE OF ORDER:	3 DECEMBER
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The Applicant pay the Respondent’s costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	AG 33  of   1997

BETWEEN:	COMCARE APPLICANT
AND:	JUDY ADELE KAY RESPONDENT

JUDGE:	FINN J
DATE:	3 DECEMBER 1997
PLACE:	CANBERRA

REASONS FOR JUDGMENT

This appeal from the Administrative Appeals Tribunal (“the Tribunal”) is said to raise an issue of narrow compass.  The respondent in this proceeding, Ms Kay, had made a claim for a lump sum payment for permanent impairment, under s24 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”).  That claim having been rejected by Comcare and by an Independent Review Officer, Ms Kay appealed to the Tribunal.  It decided that she was entitled to be paid compensation in respect of 10 per cent whole person permanent impairment and remitted the matter to Comcare with a direction to that effect.

Comcare, the present applicant, challenges that decision essentially on one ground.  That is that the Tribunal, in reaching its conclusion as to the nature of the injury said to result in a permanent impairment, did not identify, or adjudicate upon, the contest in medical evidence before it.  It simply accepted the theory advanced by Dr White, a neurologist who gave oral evidence for Ms Kay, noting when so doing that “[n]o evidence was brought by [Comcare] to refute that theory”.

Put colloquially, Ms Kay’s condition resulted from her sustaining an overuse injury attributable to keyboard duties.  Liability for that injury was accepted by Comcare.

The Statutory Setting

Only three provisions of the SRC Act require mention and then merely in part.

(1)

“Compensation for injuries resulting in permanent impairment

24.(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.

...

(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, where Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section.”

(2)

“Interpretation

4.“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;”

(3)

“Approved Guide

28.(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.

...

(4)       Where Comcare, a licensed authority, a licensed corporation or the Administrative Appeals Tribunal is required to assess or re-assess, or review the assessment or re-assessment of, the degree of permanent impairment of an employee resulting from an injury, or the degree of non-economic loss suffered by an employee, the provisions of the approved Guide are binding on Comcare, the licensed authority, the licensed corporation or the Administrative Appeals Tribunal, as the case may be, in the carrying out of that assessment, re-assessment or review, and the assessment, re-assessment or review shall be made under the relevant provisions of the approved Guide.

(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%.

(6)       In preparing criteria for the purposes of paragraphs (1)(a) and (b), or in varying those criteria, Comcare shall have regard to medical opinion concerning the nature and effect (including possible effect) of the injury and the extent (if any) to which impairment resulting from the injury, or non-economic loss resulting from the injury or impairment, may reasonably be capable of being reduced or removed.”

Insofar as presently relevant, the following parts and tables of the approved Guide require mention.  In its statement of “PRINCIPLES OF ASSESSMENT”, The Guide (inter alia) provides as follows:

“The Impairment Tables

Part A of the Guide is based on the concept of ‘whole person impairment’ which is drawn from the American Medical Association’s Guides.

Evaluation of a whole person impairment is a medical appraisal of the nature and extent of the effect of an injury or disease on a person’s functional capacity and activities of daily living.

As with the American Medical Association’s Guides, Part A of this guide is structured by assembling detailed descriptions of impairments into groups according to body system and expressing the extent of each impairment as a percentage value of the functional capacity of a normal healthy person.  Thus a percentage value can be assigned to an employee’s impairment by reference to the relevant description in this guide.

...

Double Assessment

The possibility of double assessment for a single loss of function must be guarded against.  For example it would be inappropriate to assess a lower limb amputation by reference to both the amputation table (9.3) and the lower extremity table (9.2).

Of The Guide’s tables, the following two are relevant.

“TABLE 9.1

Upper Extremity
(Percentage Whole Person Impairment)

Introduction - These tables are intended to be used to assess impairment arising from specific joint lesions or amputations.  Where the joints function normally but the use of a limb is restricted for other reasons, eg soft tissue injury, nerve injury or bone injury not involving joints, Tables 9.4 or 9.5 should be used.  These Tables can be used to assess the impairment of overall limb function from any cause.  NOTE:  either the musculo-skeletal table or Table 9.4 or 9.5 should be used - not both.

Assessment is in accordance with the range of joint movement.  X-rays should not be taken solely for assessment purposes.

NOTE:Values are for one joint only.  Where more than one joint is affected, values should be combined using the Combined Values Table (Table 14.1).

%        DESCRIPTION OF LEVEL OF IMPAIRMENT
0         X-ray changes but no loss of function of shoulder, elbow or wrist

5         Any ONE of the following:

.x-ray changes with minimal loss of function of shoulder, elbow or wrist

.          ankylosis of any joint of fingers 4 and/or 5

10       Any ONE of the following:

.loss of less than half normal range of movement of shoulder or elbow

.          loss of half normal range of movement of wrist
.          ankylosis of any joints of fingers 2 and/or 3”

[This Table goes on to provide for impairment up to 40 per cent.]

“TABLE 9.4

Limb Function - Upper Limb
(Percentage Whole Person Impairment)

%        DESCRIPTION OF LEVEL OF IMPAIRMENT

10Can use limb for self care AND grasping and holding BUT has difficulty with digital dexterity

20Can use limb for self care BUT has NO digital dexterity OR has difficulties grasping and holding

30       Retains some use of limb BUT has difficulty with self care

40       Cannot use limb for self care”

I note in passing that the Tribunal indicated in its Reasons that the Tables themselves, and the location and ambiguity of the “Introduction” to Table 9.1, have been the subject of adverse comment in many cases before it.  It is little wonder why.

The Tribunal’s Decision

In para 5 of its Reasons the Tribunal posed for itself the issues it considered it needed to determine.  These were:

“the nature of the injury suffered by the applicant, whether she is permanently impaired for the purposes of the Act, and if so, which table of the ‘Guide to the Assessment of Permanent Impairment’ (the ‘approved Guide’) should be used to assess the degree of impairment in accordance with s24 of the Act.”

As to the first of these it expressed its conclusions as follows:

“12.     The medical evidence supports the diagnosis that the applicant suffers from overuse injury resulting in, amongst other complaints, pain in the shoulder joint area.  The shoulder joint and upper arm movement is limited by pain.  There is no observable pathology to suggest that there is any joint tear or wound.  The x-rays of the cervical spine appear normal.  The respondent submits that overuse injury is a soft tissue injury of unknown cause and pathology.  While the aetiology is not known, I accept Dr White’s view that pain on shoulder joint movement indicates an injury in the area of the shoulder joint.  No evidence was brought by the respondent to refute that theory.  I also accept Dr White’s opinion that the recurrence of pain indicates the injury is not likely to be a mere soft tissue injury, which such injury would be expected to resolve in time.  However, even if the injury is a persisting soft tissue injury, it is apparent that it causes pain in the joint area, affecting joint function” :   emphasis added.

This paragraph, as I foreshadowed at the outset, contains the subject of Comcare’s complaint.

On this issue of permanent impairment the Tribunal found that Ms Kay’s shoulder pain was a longstanding impairment;  it has been largely resistant to treatment, and “[a]ccording to the bulk of the medical evidence, her condition is not likely to improve”.  The manner in which the Tribunal reached the resultant conclusion that Ms Kay’s injury had resulted in a “permanent impairment”, has not been challenged in this proceeding.

Finally on the issue of which was the appropriate Table to apply in the circumstances - Table 9.1 or Table 9.4 - the Tribunal noted (a) that two medical practitioners (Drs White and Woods) applied Table 9.1 and both arrived at a figure of 10 per cent impairment;  and (b) that two others (Drs Guest and Bennett) applied Table 9.4 and assessed impairment at zero.

In this state of affairs, the Tribunal accepted that assessment under Table 9.4 was appropriate “[t]o the extent that the applicant’s injury affects her upper limb function”.  It likewise accepted the unanimous medico-legal assessment of zero impairment that had been made by the medical practitioners who had addressed Table 9.4.

The Tribunal then turned to the question whether Table 9.1 could, nonetheless, be used to assess Ms Kay’s degree of impairment.  Having noted, and itself added to, the criticisms of the Tables and of the “Introduction” in Table 9.1, the Tribunal went on:

“25.     The Introduction specifies:  ‘Where the joints function normally but the use of a limb is restricted for other reasons, eg soft tissue injury, nerve injury or bone injury not involving joints, Tables 9.4 or 9.5 should be used.’  The applicant’s case is that her shoulder joint does not function normally, being restricted by pain, and the use of the rest of her limb is not restricted for other reasons, it being restricted by the shoulder joint pain.  Table 9.4 is, therefore inappropriate, and in fact does not provide a description of her particular injury, her ability to self care not being affected, and there being no loss of digital dexterity. ...

26.      The only Table which refers to a shoulder injury is Table 9.1.  The respondent argues that the musculo-skeletal Table 9.1 cannot be used to assess permanent impairment where there is no x-ray or pathology indicating a wound or tear to the shoulder joint.  He points to the description against the values zero and 5 percent in support of this assertion, and then argues that the description of the impairment against the higher values, must impliedly require some pathological changes, as otherwise an absurdity might result whereby a person with pathological changes could be assessed as having a lower impairment assessment than someone without.  This argument might be relevant in applying the values of the Table to a particular impairment, but I reject it as an argument in support of the inapplicability of Table 9.1  Only when read in conjunction with the introductory paragraph can it be argued that Table 9.1 might not be appropriate.  Even then, only if one interprets “lesions” in the strict sense to mean wounds or tears evidenced by some pathology.  This interpretation was not accepted in Halliday (see below).  The words of the introductory paragraph cannot be used to support the preclusion of Table 9.1 from being used to assess the applicant’s impairment which arises from an injury to her shoulder joint in circumstances where no pathological changes have been shown by x-ray.”

On the basis of the evidence of Drs White and Woods assessing Ms Kay’s loss of normal range of movement at 10 per cent, the Tribunal concluded that she had “a permanent impairment as a result of an injury to her should joint.  It went on:

“The injury is not evidenced by pathological changes, but the tribunal accepts the opinion of Dr White that the pain in the joint area identifies the injury as something more than a soft tissue injury, and that the site of the pain indicates that the injury is in or around the joint.”

Before turning to the appeal I would note that while both Dr Woods and Dr White assessed Ms Kay’s impairment at 10 per cent under Table 9.1, only Dr White suggested (only in oral evidence) the “theory” that the pain on shoulder joint movement indicates an injury in that area.”  Dr Woods in contrast, considered Ms Kay’s injuries “would appear to be to the postural musculature of the cervical spine, and right upper limb”.

The Issue in the Appeal

It is the case that only Dr White has expressed the opinion, accepted by the Tribunal, that Ms Kay has an injury in the area of the shoulder joint.  Initially, Comcare’s challenge was to the Tribunal’s acceptance of this without identifying or adjudicating upon the contest of medical evidence before it.  After the hearing in this court, I raised with the parties the additional question whether the location of the injury causing impairment had to be determined before consideration could be given to the use of Table 9.1.

I raised that question for this reason.  If the injury’s location did not have to be so determined, then the Tribunal’s acceptance of Dr White’s opinion, even if objectionable for the reason alleged by Comcare in its appeal, may well be said to relate to a matter that had no relevance to the issue the Tribunal was required to determine, ie whether Ms Kay’s impairment could properly be assessed under Table 9.1.

Written submissions were invited on this matter.  It is appropriate to deal with it first.

The Location of the Injury and Table 9.1

Section 24 of the SRC Act on its face is unconcerned with the location of an injury.  Rather its focus is on whether “permanent impairment” results from an injury.  A “permanent impairment” in turn is defined in s 4 to mean a loss, or loss of use of, or damage to, or malfunction of, any part of the body or bodily system or function.  The Tables contained in The Guide required by s 24(5) to be used in determining the degree of permanent impairment in turn deal with various categories of body parts, systems and functions.  In the application of the Tables the location of an injury can only be a matter of moment if for a particular Table this is made so in the assessment of the degree of permanent impairment with which that Table is concerned.

Comcare has submitted that such is the case with Tables 9.1 and 9.2.  To that end it advances a particular construction of the inappropriately located “Introduction” to Table 9.1.  I am asked, in effect, to give a certain intelligibility to the “Introduction” by making a number of implications in it.  I would formulate these in the following way which I have inserted in parentheses in the following reproduction of the “Introduction”:

Introduction - These tables [ie Tables 9.1, 9.2 and 9.3] are intended to be used to assess impairment arising from specific joint lesions or amputations.  Where the joints function normally but the use of a limb is restricted for other reasons, eg soft tissue injury, nerve injury or bony injury not involving joints, Tables 9.4 or 9.5 should be used.  These Tables [ie Tables 9.4 and 9.5] can be used to assess the impairment of overall limb function from any cause.  NOTE: either the musculo-skeletal table or Table 9.4 or 9.5 should be used - not both.

Assessment [in Tables 9.1 and 9.2] is in accordance with the range of joint movement.  X-rays should not be taken solely for assessment purposes.

The consequence of these implications is, of course, that in the present case Table 9.1 could only be used if Ms Kay was found to have a specific joint (ie shoulder) lesion.

For the respondent’s part, it is submitted that, as both s 24 and The Guide recognise, the SRC Act is concerned not with the location of an injury as such but with “its consequence by way of impairment of any body part, system or function”: The Guide, p 2.  Where there is a loss of joint function (eg in the shoulder), there is relevantly an impairment of joint function irrespective of where the injury causing that impairment is located.  Such, for example, was Dr Woods’ conclusion in the present case notwithstanding his location of the injury in “the cervical spine, and right upper limb”.

To make the implications suggested by the applicant, so it is said, is (i) to impose an unnecessary threshold that is not reflected in the legislation itself; and (ii) to contrive a meaning for the ambiguous and confusing language of the “Introduction” - the more so as the percentage value levels in Table 9.1 have an explicit concern with impairment by way of loss of joint function or movement.

For my own part, I consider that the ambiguity in, and possible constructions of, the Introduction are such that it would be improper artificially to contrive the meaning of the Introduction to produce the admittedly ordered result that Comcare seeks to have imposed on Table 9.  In saying this, I agree with the views of Olney J in Comcare v Ticsay (1992) 16 AAR 241 at 248 that the “Guide should be construed and applied in aid of the general statutory purpose not as a means of limiting it”.

It goes without saying that the Introduction is totally inappropriately located.  Where in its opening sentence it says “these Tables are intended to be used to assess impairment arising from specific joint lesions or amputations”, there is no reason to interpret this as being other than the non-exhaustive identification of the role of the entirety of Table 9.  I am unprepared to treat the generic reference “These Tables” as requiring other than, or as being impliedly more specific than, that.  Table 9.3, obviously enough, deals with amputations and so self-identifies for the purposes of the sentence.  But while it doubtless is the case that Tables 9.1 and 9.2 encompass specific joint lesions, I am not prepared to find that the Introduction on its own face limits those Tables to cases of such lesions only - the more so given the preoccupation within those Tables themselves with loss of function or movement of the joints they respectively identify.  The second sentence of the Introduction gives a privileged role to Tables 9.4 or 9.5 where “joints function normally but the use of a limb is restricted for other reasons”.  While the rest of the Introduction contemplates that these same two Tables may be used where a joint does not function normally, the second sentence at least suggests that where joint function is not normal, those Tables do not retain their privileged role - that other Tables as well may apply.

It has not been suggested in this application that Table 9.1, by virtue of its particular provisions, limits its applications to cases of specific joint lesions.  That limitation, as I understood the applicant’s submissions, arises from the manner in which the Introduction allegedly allocates roles to the various Tables.  As I have said, I do not find in the Introduction the particular allocation Comcare has proposed.  Such may have been the outcome intended when The Guide was formulated.  If such was the case, it was not achieved.  What, nonetheless, is surprising, is that in the face of the obvious deficiencies in explanation of Table 9’s application, Comcare has persisted in promoting its ambiguity for so long.

As I foreshadowed with counsel for the parties, the conclusion at which I have arrived has the consequence that the specific error of law raised by Comcare in this appeal - ie the Tribunal’s acceptance of Dr White’s theory as to the location of Ms Kay’s injury - relates to a matter unnecessary to be determined by the Tribunal in making its decision under the SRC Act.  Even if it was in error in this, it is clear that the Tribunal actually addressed the question raised by Table 9.1 (especially in paras 28-32 of its Reasons which need not be reproduced here);  it addresses the evidence of both Drs Woods and White on loss of range of shoulder movement - and I note again Dr Woods did not locate the injury in the shoulder; and it concluded that Ms Kay had suffered a 10 per cent permanent impairment under Table 9.1.

Counsel for Comcare has submitted that the matter should nonetheless be remitted to the Tribunal for reconsideration.  It is said that its treatment of the question of impairment to Ms Kay’s shoulder joint function has not been the subject of consideration by the Tribunal unaffected by its error in accepting Dr White’s theory.

I reject this submission.  As I noted the Tribunal properly addressed the issue of function/range of movement raised by Table 9.1 in light of the evidence of Drs Woods and White.  Its finding beyond this as to the location of the injury was unnecessary.  No purpose would be served in remitting the matter in circumstances in which findings have been made sufficient to justify the ultimate decision at which it arrived.

Accordingly, I dismiss the application with costs.

I certify that this and the preceding eleven (11) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn

Associate:

Dated:            3 December 1997                   

Counsel for the Applicant:	T Howe
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	J Godtschalk
Solicitor for the Respondent:	Garry Rob and Associates
Date of Hearing:	5, 16 September 1997
Date of Judgment:	3 December 1997