Danson and Comcare
[2003] AATA 1193
•26 November 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1193
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1639
GENERAL ADMINISTRATIVE DIVISION ) Re NIGEL DANSON Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr S. Webb, Member Date26 November 2003
PlaceSydney
Decision The decision under review is set aside. In its place, the Tribunal decides that Mr Danson has a 10 percent whole person impairment under Table 9.1 of the approved Guide as a result of an injury sustained on service in East Timor. The matter is remitted to Comcare to determine the correct amount of compensation that is payable pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988. Comcare is to pay Mr Danson's reasonable costs as agreed or taxed.
[Sgd] Mr S. Webb, Member
CATCHWORDS
COMPENSATION - left shoulder injury – supraspinatus tendonitis and impingement - liability accepted - whether permanent impairment – whether impairment is greater than 10 percent - decision set aside
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 sections 4, 14, 24, 27, 28 and 67
Guide to the Assessment of the Degree of Permanent Impairment
CASELAW
Comcare v Amorebieta (1996) 66 FCR 83
Fazlic v Milingimbi Community Inc (1982) 150 CLR 345
Filla v Comcare (2001) FCA 964
Re Halliday and Comcare [1994] 19 AAR 431
Re Woolf and Comcare (1995) AATA 10362
Whittaker v Comcare (1998) 86 FCR 532
REASONS FOR DECISION
26 November 2003 Mr S. Webb, Member 1. On 9 November 1999, Mr Nigel Danson injured his left shoulder while serving in the Royal Australian Air Force (“RAAF”) in East Timor (T5). Liability for the injury was accepted on 19 March 2001 by a delegate of the Department of Veteran’s Affairs who determined that Mr Danson “suffered a contraction of a disease to which [his] military service contributed in a material degree, namely left supraspinitus [sic] tendonitis left shoulder” (T7, f43).
2. On 12 June 2002, Mr Danson’s permanent impairment compensation claim (T8) was rejected (T10, f55) on the basis of a report by Dr John Watson that he did not suffer from any impairment as a result of the accepted injury (T10, f59-61). By request of Mr Danson, the decision was reconsidered and affirmed on 23 October 2002.
3. Mr Danson is not satisfied that the decision to reject his permanent impairment compensation claim is correct and has applied for review by this Tribunal (T1).
4. The issue before the Tribunal is whether Mr Danson suffers from a permanent impairment and, if so, whether an amount of compensation is payable.
legal principles
5. Mr Danson’s permanent impairment compensation claim falls under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”). For the claim to succeed it must be established that Mr Danson’s injury has resulted in a permanent impairment (see section 24 of the Act1). The Tribunal, standing in Comcare’s shoes, must first determine whether the claimed impairment is the result of an injury arising from or in the course of employment. Secondly, the Tribunal must determine whether the claimed impairment is permanent, having regard to its duration, the likelihood of improvement, whether all reasonable rehabilitative treatment has been undertaken and any other relevant matters.
6. If the impairment is found to be permanent, then the Tribunal must determine the percentage degree of whole person impairment under the Guide to the Assessment of the Degree of Permanent Impairment (“the approved Guide”). Compensation is not payable if the degree of whole person impairment is less than 10 percent.
evidence
7. Mr Danson gave oral evidence and was represented by Mr J. Dodd, counsel. Comcare was represented by Mr G. Johnson, counsel. Dr P. Endrey-Walder and Dr J. Watson gave oral evidence. The Tribunal had before it documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T17), reports by Dr Endrey-Walder (Ex A1, A2 and A3), a report by Dr J. Cartoon (Ex A4) and a report by Dr Watson (Ex R1).
factual background
8. The following findings are drawn from the documentary and oral evidence.
9. Mr Danson was born on 29 July 1969. He enlisted in the RAAF in January 1988 and was deployed to East Timor in October 1999. On posting he was engaged in physically strenuous activities including moving cargo, digging trenches and constructing sandbag defences in full flack equipment.
10. On 9 November 1999, Mr Danson complained of a sore shoulder and was found to have a full range of movement but with pain especially on external rotation and abduction and adduction, within a “painful arc” between 90 and 120 degrees (T3, f25). He continued to suffer pain with abduction over 90 degrees (T3, f26-28) and was diagnosed with a “classic impingement syndrome” on 6 December 1999 (T3, f29). On 19 March 2001, Dr Bashir diagnosed “L supraspinatus tendonitis” (T3, f32) and the Department of Veteran Affairs accepted liability for the injury (T7, f43).
11. On 28 January 2002, Dr R. Rivett examined Mr Danson and reported “pain on abduction of the shoulder” and diagnosed “left shoulder girdle myofascial syndrome together with bicipital and supraspinatus tendinitis” (T13, f66). Dr Rivett reported “a permanent loss of efficient use of the dominant left upper limb of 13%” (T13, f68) but found no measurable impairment of the left upper limb under Impairment Table 9.4 of the approved Guide. Dr Rivett was of the opinion that further treatment could produce improvement. Subsequently, on 23 February 2002, Dr Rivett concluded that there was a “10% impairment of whole person due to problems with his left arm” under Table 9.1 of the approved Guide (T13, f69) and on 13 April 2002 reported a 20 percent impairment under Table 9.4 (T13, f70).
12. On 13 May 2002, Dr Watson reported Mr Hanson had “a full range of movement with no evidence of ongoing pathology” in his left shoulder (T10, f60).. Dr Watson concluded there was no permanent impairment and no requirement for any treatment. He subsequently confirmed his assessment on 21 July 2003 (Ex R1).
13. On 29 April 2003, Dr Endrey-Walder diagnosed “chronic supraspinatus tendonitis with a degree of impingement” and reported a 10 percent permanent impairment under Table 9.1 and a 5 percent permanent impairment under Table 9.6 of the approved Guide (Ex A1, p5).
14. On 14 July 2003, Dr Endrey-Walder reviewed Dr Watson’s report and, noting their different findings on the clinical examination of Mr Danson, confirmed his previous opinion (Ex A2). On 6 November 2003, Dr Endrey-Walder reviewed an ultrasound report of Mr Danson’s left shoulder (Ex A4) and found the report to be “clearly in line with my clinical finding of impingement” (Ex A3).
decision
15. Having carefully considered all the evidence before me, the submissions of the parties and the relevant caselaw and legislation I am satisfied, on the balance of probabilities, that Mr Danson has a 10 percent whole person impairment under Table 9.1 of the approved Guide as a result of his injury on service in East Timor and is entitled to be paid compensation pursuant to sections 24 and 27 of the Act.
16. It follows that the decision under review is set aside.
17. The matter is remitted to Comcare to determine the correct amount of compensation that is payable pursuant to sections 24 and 27 of the Act.
18. Comcare is to pay Mr Danson’s reasonable costs as agreed or taxed.
reasons for the decision
19. The fact that Mr Danson was injured during his employment in East Timor is not disputed. Comcare is liable to pay him compensation for incapacity or permanent impairment arising from that injury as well as reasonable medical treatment costs. Those matters are not in issue before me.. The only matters to be decided are whether Mr Danson suffered a permanent impairment as a result of the injury to his left shoulder and, if so, whether an amount of compensation is payable.
20. Mr Danson’s credibility as a witness was placed under challenge. I am satisfied, however, that Mr Danson is a witness of truth who recounted his symptoms and history honestly and to the best of his ability. That there are variations in his reported abilities and the range of movement in his left shoulder merely reflects the fact that his symptoms are variable. I am satisfied that a brief examination on one occasion may not provide a conclusive picture of his condition. It is necessary to consider all of the evidence over time to adequately assess the nature and extent of impairment in Mr Danson’s left shoulder. Both Dr Watson and Dr Endrey-Walder report no evidence of exaggeration and described Mr Danson as “straight-forward”.
permanent impairment
21. I am satisfied, on all the evidence before me, that Mr Danson has impairment in his left shoulder. “Impairment” is defined at section 4 of the Act[i]. The pain and consequent restriction of movement in Mr Danson’s left shoulder constitutes impairment, comprising the loss of the use, or damage or malfunction, of his left shoulder.
22. This conclusion is supported by the clinical findings of Dr Endrey-Walder (Ex A3) and Dr Rivett (T13, f66). On 28 January 2001, on examination, Dr Rivett reported (T13, f66):
“There was tenderness over the left suboccipital muscles and facet joints of the neck, along the cervical spinous processes and ligaments, in the left trapezius and infraspinatus and at the supraspinatus insertion and long head biceps tendon…
…The wrist and shoulder joints were normal although in the latter, medial rotation went to only 40°.”
Dr Endrey-Walder examined Mr Danson on 29 April 2003 and reported (Ex A1, p4):
“The contour of the left shoulder was unremarkable. He reached 120 degrees of abduction but from about 100 degrees onwards he was obviously uncomfortable, and the same thing was obvious over the last 20 degrees or so of anterior flexion to 130 degrees. He had extension to 40 degrees. He seemed able to achieve full external rotation, internal rotation being about 20 degrees short of normal.
There was slight resistance on attempted passive rotary manipulation of the shoulder.”
23. The opinions of Drs Rivett and Endrey-Walder and their diagnoses of supraspinatus tendonitis are consistent with the diagnoses of Dr Bruce (T3, f19) and Dr Bashir (T3, f32) and with Mr Danson’s description of his symptoms under oath. I note that Dr Bashir’s diagnosis on 19 March 2001 was made subsequent to Mr Danson being found fit for full duties in December 2000. I also note that Dr Rivett diagnosed left shoulder girdle myofascial syndrome on 16 January 2002 (T13, f66) and on 29 April 2003 Dr Endrey-Walder reported that he could not exclude facet joint pathology as the cause of Mr Danson’s ongoing neck symptoms (Ex A1, p5).
24. On examination of Mr Danson, on 10 May 2002, Dr Watson came to a different conclusion and found “no clinical evidence of organic pathology in the left shoulder” (T10, f60). However, Dr Watson stands alone in that opinion and I prefer the evidence of Drs Rivett and Endrey-Walder on this point. Dr Watson’s evidence concerning the diagnostic symptomatology for supraspinatus tendonitis and impingement was substantially consistent with that of Dr Endrey-Walder. However, Dr Watson did not observe the requisite symptoms in Mr Danson on clinical examination, whereas Dr Endrey-Walder and Dr Rivett did. This fact does not compel me to conclude that Mr Danson does not suffer from supraspinatus tendonitis or necessarily that his claim must fail. I am satisfied that Mr Danson’s symptoms in his left shoulder are variable from day to day depending on activity and note Dr Endrey-Walder’s report (based on the history given by Mr Danson) (Ex A1, p2):
“While his left elbow symptoms had gradually fully dissipated, his left shoulder related difficulties, and especially activity-related aggravations, would wax and wane over the next 18 months or so…”
25. Dr Watson and Dr Endrey-Walder agreed that they would not expect a person suffering from supraspinatus tendonitis to demonstrate a full range of movement in the affected shoulder. It was submitted that because Dr Watson reported Mr Danson demonstrated a full range of movement on clinical examination, he could not be suffering supraspinatus tendonitis. I do not agree. From the outset of Mr Danson’s medical treatment for his left shoulder injury, it has been noted that he is able to move his shoulder in the full range, but experiences pain in an arc of 90 degrees to 120 degrees and on external rotation, abduction and adduction (T3, f15). Dr Watson reported Mr Danson’s “present symptoms” to include stiffness and pain “made worse with activities” (T10, f59) but found no “organic pathology” to explain those symptoms and found nothing of significance in Dr Cartoon’s left shoulder ultrasound report (Ex A4).
26. Dr Cartoon reported (Ex A4):
“The subacromial/subdeltoid bursa is mildly thickened, with slight bunching on abduction.
There is superior convex bulging of the left acromioclavicular joint capsule, however Mr Danson is not tender over this site.”
27. Dr Endrey-Walder concluded that the report of thickening and bunching of the subacromial bursa on abduction is consistent with his finding of impingement. In his opinion, even though the report did not provide evidence of tendonitis, it was not sufficient to rule it out. Dr Watson considered the thickening of the subacromial bursa to be within the normal range and gave evidence that bunching of the bursa on abduction was the result of its normal function as a “shock-absorber”.. However, that does not explain to satisfaction why Dr Cartoon saw fit to make those observations in his report if they were within normal expectations. I prefer Dr Endrey-Walder’s assessment of Dr Cartoon’s radiological report over that of Dr Watson.
28. When considering whether impairment is permanent it is necessary to have regard to the matters set out at subsection 24(2) of the Act and the definition of “permanent” set out at section 4 of the Act[ii]. That is, for an impairment to be considered permanent, it must be likely to continue indefinitely.
29. In Mr Danson’s case, his impairment has persisted since his injury in November 1999 despite physiotherapy treatment and steroid injections. The question arises whether Mr Danson’s condition is likely to improve and whether he has undertaken all reasonable rehabilitative treatment for the impairment. Dr Endrey-Walder is of the opinion that there is a high likelihood that Mr Danson’s impairment may be significantly improved by surgical intervention. Dr Rivett did not find any indications for surgical intervention. He considered that further treatment, in the form of a Feldenkrais exercise program, may result in some improvement (T13, f66-67), but concluded that Mr Danson’s left shoulder condition is permanent:
“[Mr Danson] is likely to go on in the long term to have symptoms in the shoulder but adequate treatment could produce improvement. One would however at this stage regard his problem as permanent.”
30. Mr Danson gave evidence that Dr Bruce told him he had a choice; to put up with the symptoms or submit to surgery. There is doubt whether surgical intervention is warranted in this case and Mr Danson refused Dr Bruce’s surgical option. This issue was not pressed during the hearing and detailed evidence concerning his reasons for refusing surgical treatment was not adduced. In Mr Danson’s submission his refusal was put as a matter of right, citing the case of Fazlic v Milingimbi Community Inc (1982) 150 CLR 345. That case concerned an employee’s duty to take reasonable steps to mitigate damages when claiming worker’s compensation entitlements. Those issues were not pursued in this case. Whether or not Mr Danson has good reason to refuse such treatment is not determinative of the reasonableness of the rehabilitative treatment or the permanence of the impairment in question (see Filla v Comcare (2001) FCA 964 at paragraphs 55 to 66).
31. I am persuaded by Dr Endrey-Walder’s evidence that arthroscopic decompression surgery is reasonable treatment for Mr Danson’s condition, which could be expected to have an 80 or 90 percent success rate. However, Mr Danson has steadfastly refused such treatment since it was first considered by Dr Bruce in February 2000. There is nothing to suggest that Mr Danson may change his decision to refuse such treatment in the foreseeable future and I accept that his refusal is likely to continue for a substantial period of time.
32. This being the case, I am satisfied that Mr Danson’s impairment to his left shoulder is likely to continue indefinitely and is therefore permanent for present purposes.
degree of permanent impairment
33. The degree of permanent impairment is to be assessed and determined under the provision of the approved Guide. This requires an evaluation to be made of the percentage degree of “whole person impairment” in accordance with the Principles of Assessment set out in the preamble to the approved Guide. That evaluation is “a medical appraisal of the nature and extent of the effect of an injury…on a person’s functional capacity and on the activities of daily living” (see definition of “whole person impairment”).
34. The medical appraisals in evidence before me relate to Tables 9.1, 9.4 and 9.6. There is insufficient evidence to support Mr Danson’s claim that problems with his cervical spine are caused by his claimed shoulder condition or the injury he sustained on 9 November 1999. While such a causal link may be possible, I note the doubt expressed by Dr Rivett in relation to liability (T13, f66) and Dr Endrey-Walder’s comments concerning “facet joint pathology”.. On the evidence before me I am not able to conclude, on the balance of probabilities, that Mr Danson’s claimed neck symptoms are the result of his employment-related injury. It follows that I do not accept that the assessment of impairment under Table 9.6 by Dr Rivett and Dr Endrey-Walder is the result of Mr Danson’s injury. The relevant Tables are 9.1 and 9.4.
35. Mr Danson did not press Dr Rivett’s assessment of 20 percent assessment under Table 9.4. The evidence concerning Mr Danson’s loss of grip strength in his left hand is inconclusive. Dr Rivett found Mr Danson’s grip strength in his left hand to be weaker than that in his right and reported a “slight weakness of hand grip on the dominant left side” (T13, f66). Dr Endrey-Walder found Mr Danson’s left-hand grip strength to be stronger than his right. Dr Watson made no report concerning grip strength. I do not accept Dr Rivett’s assessment. If there was a permanent impairment warranting a 20 percent evaluation under Table 9.4 it would be reasonable to expect that the basis of the evaluation, that is difficulty grasping and holding, would have been apparent in Mr Danson’s medical history and his evidence. It is not. Mr Danson stated in his evidence that his left hand is weaker than his right hand, but his evidence does not persuade me that he has the requisite difficulty with grasping and holding to warrant a 20 percent rating under Table 9.4. There is no evidence before me that Mr Danson has difficulty with digital dexterity. I am satisfied that Mr Danson has a 0 percent whole person impairment under Table 9.4.
36. Drs Rivett and Endrey-Walder assessed Mr Danson to have a 10 percent permanent impairment under Table 9.1. Their evaluation was that Mr Danson suffers a loss of less than half the normal range of movement in his left shoulder. On their evidence, which I accept, Mr Danson’s restriction on movement in his left shoulder is caused by pain arising from tendonitis and impingement. I must determine whether such a restriction on movement is voluntary and within the meaning of the loss that is contemplated by Table 9.1. This question was considered in the context of Table 9.6 in the case of Comcare v Amorebieta (supra) at paragragh 13:
“13…. Loss, or loss of use, or the damage or malfunction, of a bodily system or function or part thereof resulting from injury does not in my opinion comprehend voluntary abstention from use, even where the abstention is calculated, and likely, to benefit the bodily system or function. Nor does the expression "loss of (some part of) normal range of movement" of a limb or other part of the musculo-skeletal system comprehend in the speech of medical practitioners a loss which is imposed neither by physical incapacity to move nor by pain inhibiting movement, within that part of the range. In my opinion the Tribunal erred in law in allowing the expression a wider meaning when it observed that "the normal range of movement refers not only to the usual extent to which variation is possible in the action or process of moving but also to the way in which the action or process of moving is carried out and the steps that must be taken to ensure that Mr Amorebieta is able to continue to move". If the expression "normal range of movement" were to be given the meaning it has in ordinary speech where it occurs in Table 9.6, the determination of that meaning would be a question of fact. But the question whether the expression is used in Table 9.6 in a sense other than that which it has in ordinary speech is a question of law. (See N.S.W. Associated Blue-Metal Quarries Ltd. v. Federal Commissioner of Taxation (1956) 94 CLR 509 at 511-512; Hope v. Bathurst City Council (1980) 144 CLR 1.) In my opinion the expression is used in Table 9.6 in the sense in which it is understood by medical practitioners when used in reference to the human musculo-skeletal system. And the evidence before the Tribunal in my opinion compelled the conclusion that the expression does not in the parlance of the medical profession have the meaning ascribed to it by the Tribunal.”
37. While Jenkinson J did not accept the Tribunal’s interpretation of “normal range of movement” in Comcare v Amorebieta (supra), the ordinary meaning of that term applies. That is, “the usual extent to which variation is possible in the action or process of moving”. The variation is not limited to the motion of the joint concerned but relates to the action or process of moving (see Re Halliday and Comcare (1994) 19 AAR 431 at 444). It follows that restriction of movement may result from factors other than mechanical restriction of the affected joint. In Mr Danson’s case, the operative factor is pain.
38. That pain may restrict the action or process of moving is accepted. However, such restriction must be distinguished from the voluntary abstention from movement in order to avoid or protect against pain. The latter has no place in the evaluation of permanent impairment (Comcare v Amorebieta (supra)). The question thus arising is whether Mr Danson restricts his left shoulder movement in order to avoid pain or whether the pain restricts his movement.
39. In the case of Re Woolf and Comcare [1995] AATA 10362 the Tribunal concluded (paragraph 41):
“... when a particular movement can only be achieved by incurring pain then the persons’ functioning in respect of that movement is impaired. We interpret that movement can be impaired purely by a mechanical restriction or because the performance of that movement causes pain. We reject the Respondent’s submission to the effect that because [the doctor] observed a full range of movement, albeit with pain, this demonstrated a “normal” range of movement. That approach would provoke a very restricted application of the Guide, which clearly is not intended in beneficial legislation.”
40. In Mr Danson’s case the abduction, rotation and anterior flexion of his left shoulder through a certain arc causes pain, although the intensity of the pain is variable on activity day to day. I am satisfied, therefore, that the functioning of his left shoulder is impaired and is outside what may be considered “normal”.
41. In Comcare’s submission it cannot be said that Mr Danson has a loss of less than half the normal range of movement because Dr Watson reported a full range of movement on examination. The submission that “loss”, as it is used in the term “loss of half of less than half the normal range of movement” at Table 9.1, requires the degree of restriction of movement to be ever-present has no merit and cannot be accepted. Jenkinson J commented in Comcare v Amorebieta (supra) at paragraph 15:
“15. It was a further ground of appeal that the Tribunal, having found "that there are occasions on which (the respondent) has a full range of movement if movement is to be measured in a technical sense", erred in law in failing to recognise that the word "loss" in Table 9.6 - and particularly in the phrase "loss of less than half normal range of movement" - requires that that degree of restriction of movement be always present. In that stark form the submission was perhaps not pressed. Nor do I accept it. The finding was based on some of the evidence by medical practitioners who at particular examinations found the respondent able to move within the normal range. But what is done on a particular occasion under medical observation is not determinative of the assessment which Table 9.6 requires.”
42. The evidence before me indicates that the intensity of Mr Danson’s left shoulder symptoms and the degree of restriction of movement in that joint are variable on activity from day to day. This does not extinguish his claim. It is a fact that Dr Watson reported Mr Danson had a full range of movement in his left shoulder on examination on 10 May 2002. However, Dr Rivett reported “minimal restriction” in his left shoulder on 16 January 2002 and Dr Endrey-Walder reported that he was “obviously uncomfortable” and experienced pain in a range of left shoulder movements on 29 April 2003. I do not comprehend Dr Watson’s evidence to mean that Mr Danson’s shoulder was entirely asymptomatic on examination. Dr Watson reported “minimal tenderness over the coracoid process and the AC joint and over the insertion of the deltoid” (T10, f59) and explained that he found no organic pathology to explain Mr Danson’s ongoing symptoms and complaints of pain.
43. The Principles of Assessment in the preamble to the approved Guide state, in relation to impairment:
“Impairment is measured against its effect on personal efficiency in the ‘activities of daily living’ in comparison with a normal healthy person. The measure of ‘activities of daily living’ is a measure of primary biological and psychosocial function such as standing, moving, feeding and self care.”
Considering all of the evidence before me, I am satisfied that Mr Danson’s loss of movement in his left shoulder significantly restricts him carrying out the activities of daily living that could be expected of a healthy person of his age.
conclusion
44. I am satisfied that Mr Danson has a permanent impairment in his left shoulder that restricts his movement. I am also satisfied that the restriction represents more than a minimal loss of function in his left shoulder, but constitutes a loss of less than half the normal range of movement in that joint. While there is no X-ray evidence of organic pathology I am persuaded by Dr Endrey-Walder’s opinion that there is evidence of left shoulder pathology in Dr Cartoon’s ultrasound report. I accept the assessments of Dr Rivett and Dr Endrey-Walder that Mr Danson has a whole person impairment of 10 percent under Table 9.1 and so find. I have found that Mr Danson has a 0 percent impairment under Table 9.4. As I am bound to apply the Table most favourable to Mr Danson (see Whittaker v Comcare (1998) 86 FCR 532), I find that Mr Danson has a 10 percent whole person impairment and is entitled to be paid an amount of compensation pursuant to sections 24 and 27[iii] of the Act.
45. This being the case, the matter is to be remitted to Comcare to determine the correct amount of compensation that is payable. As the decision is favourable to Mr Danson I order that Comcare is to pay his reasonable costs pursuant to section 67(8) of the Act.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
Signed: A. Krilis
AssociateDate of Hearing 7 November 2003
Date of Decision 26 November 2003
Solicitor for the Applicant Ms R James
Counsel for the Applicant Mr J Dodd
Solicitor for the Respondent Mr K Alexander
Counsel for the Respondent Mr G. Johnson
1 24 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.
…
2
4 Interpretation
(1) In this Act, unless the contrary intention appears:
…
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.
…
[ii] permanent means likely to continue indefinitely.
…[iii]
27 Compensation for non-economic loss
(1)Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
…
0
9
0