Dawson and Comcare
[2013] AATA 836
•21 November 2013
[2013] AATA 836
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/3347
Re
Richard Dawson
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal The Hon. Brian Tamberlin QC, Deputy President and Dr R Blakley, Member
Date 21 November 2013 Place Canberra The decision under review is affirmed.
............................[sgd]............................................
The Hon. Brian Tamberlin QC, Deputy President and Dr R Blakley, Member
COMPENSATION – upper extremity function – separate injuries to left and right upper limbs – liability denied for permanent impairment and non-economic loss – application of impairment table 9.14 of Comcare Guide – application of American Medical Association Guide – each injury to be separately assessed – decision under review affirmed.
Safety, Rehabilitation and Compensation Act 1988 ss. 24, 27
Onorato and Comcare [2013] AATA 383
Canute v Comcare [2006] 226 CLR 535
Fellowes v Military Rehabilitation and Compensation Commission (2009) 240 CLR 28
Comcare v Lilley [2013] FCAFC 121
Broadhurst v Comcare [2010] FCA 1034Guide to the Assessment of the Degree of Permanent Impairment (Second edition 2006)
American Medical Association’s Guide to the Evaluation of Permanent Impairment (Fifth edition 2001).
REASONS FOR DECISION
The Hon. Brian Tamberlin QC, Deputy President and Dr R Blakley, Member
The Applicant seeks review of a decision of the Respondent on 4 July 2012 relating to upper extremity function. The reviewable decision found that Table 9.14 of the Guide to the Assessment of the Degree of Permanent Impairment, Second edition (Comcare Guide), had been incorrectly applied and that Table 9.9a (Wrist Flexion/Extension) and Table 9.8.1b (Radial and Ulnar Deviation of Wrist Joint) were the only appropriate Tables to assess the Applicant’s whole person impairment.
The decision varies a determination of 15 February 2012, which considered the Applicant’s claim for permanent impairment under s 24 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for his accepted condition of lateral epicondylitis (bilateral). The Respondent assessed the Applicant’s percentage of whole person impairment as 10% under Table 9.14 of the Comcare Guide, and determined that the Applicant was entitled to compensation under ss 24 and 27 of the Act.
BACKGROUND
Both parties have agreed that the bare facts are not in dispute, however they are briefly set out for clarity. The Applicant was born in 1958. On 6 April 2009 he first noted his condition of lateral epicondylitis (bilateral) which was caused by work-related use of a computer mouse and keyboard for clerical type activity such as writing, research and analysis. The deemed date of injury was 21 May 2009 when the Applicant first sought medical treatment from Dr Watson, GP.
On 22 June 2009 Comcare accepted the Applicant’s claim for compensation and rehabilitation for lateral epicondylitis (bilateral). On 5 August 2009 the Applicant’s general practitioner, Dr Watson, certified the Applicant fit for full-time modified duties. On 18 September 2009 the Applicant accepted a voluntary redundancy package from the Australian Bureau of Statistics and ceased work on 10 May 2010. On the recommendation of Dr Watson, Comcare accepted liability for one week of physiotherapy and three months’ gym membership. In November 2010 the Applicant commenced employment with Comcare.
The Applicant lodged a claim for permanent impairment and non-economic loss for his accepted condition of lateral epicondylitis (bilateral), on 27 June 2011. On that form the Applicant’s treating general practitioner Dr Watson calculated a 10% whole person impairment.
On 15 December 2011 Comcare considered the Applicant’s claim for permanent impairment under s 24 of the Act, then assessed his whole person impairment as 10% under Table 9.14 of the Comcare Guide and it was determined that the Applicant was entitled to compensation.
On 24 April 2012 Comcare advised the Applicant that a request had been made for a reconsideration of the determinations involving incapacity payments and the determination that the Applicant was entitled to compensation for 10% whole person impairment.
On 24 May 2012 Comcare affirmed the decision granting incapacity payments.
On 4 July 2012 a reviewable decision was made to revoke the earlier determinations and a finding was made that Tables 9.9.1a and 9.9.1b were appropriate and the Applicant was assessed as having a 4% whole person impairment of his right arm and a 3% whole person impairment of his left arm. Accordingly, the Applicant, as he did not have a 10% whole person impairment in relation to either of his arms on this finding, was found not to be eligible for compensation under s 24 of the Act.
On 28 September 2012 the Applicant lodged an application for a review of the decision of 4 July 2012.
ISSUE
The issue for determination is the degree of permanent impairment resulting from each injury assessed under the provisions of the second edition of the Comcare Guide. The two injuries are the lateral epicondylitis in his dominant right upper limb, which is the right elbow injury, and secondly the lateral epicondylitis in his left upper limb, which is the left elbow injury. It is accepted that each of the above injuries results in permanent impairment for the purpose of s 24(2) of the Act.
AGREED FACTS
On 19 February 2013 Dr Eaton, an occupational physician, made a report which included the following:
“Examination reveals that elbow and wrist active movements are normal. No whole person impairment has occurred according to tables 9.10.1a Elbow Flexion/Extension or 9.10.1b Pronation and Supination of Forearms or tables 9.9.1a Wrist Flexion/Extension and Table 9.9.1b Radial and Ulnar Deviation of Wrist Joint. I believe that the Applicant is significantly permanently impaired as a result of his accepted work related injuries. However the range of motion tables do not adequately reflect the level of impairment he continues to suffer. Consequently I would refer to table 9.14 Upper Extremity Function. The Applicant has an objectively diagnosed orthopaedic condition arising in, and affecting, the upper extremities which allows this table to be used. […]A 10% WPI should apply. This is based on minor loss of digital dexterity, cannot lift more than 30kg (15 kg maximum with both hands), finds it difficult to do up shoelaces and join up paperclips. Both limbs are affected.
[The Applicant] suffers with long standing established intractable bilateral lateral epicondylitis and extensor muscle complex strain/tears. There is unlikely to be any improvement from the current state and slow subtle degeneration is likely to occur with time and age.
The choice of table 9.14 appears to be the only one available that gives some recognition of the Applicant’s condition and resulting impairment[…]. Because a recognized orthopaedic condition has been diagnosed clinically and radiologically, this table theoretically can be used. In the introduction, the use of this table (pg. 86 of the Guide 2nd Edition) is to be confined to radiologically demonstrated joint instability, radiologically demonstrated arthritis or where the employee has had an arthroscopy. So on page 108 the Applicant qualifies but on page 86 he does not. This is an anomaly and needs to be corrected.”
Both parties accept the evidence of Dr Eaton including the factual basis on which his report is based. His conclusions and findings are that:
(a)There is no loss of range of movement within the joints of the elbow or wrist.
(b)Under Table 9.14 which concerns upper extremities the Applicant has a 3% rating for the non-dominant extremity and 5% for the dominant extremity. He accepted that Table 9.14 was the appropriate table for assessment of the extent of impairment.
(c)There were two injuries namely to the left arm and right arm.
(d)Each injury occurred at a different time.
(e)Each injury was in respect of different parts of the body.
(f)Both injuries occurred from typing and related activities.
The principal issue in this case is one of interpretation of the Comcare Guide and also raises the question of whether Table 9.14 can be applied. If it can be applied the percentage of whole person impairment relating to ‘both extremities’ in Column 3 can be applied. If that table cannot be applied then a question arises as to whether the American Medical Association’s Guide to the Evaluation of Permanent Impairment (Fifth edition 2001) (American Guide) can be applied. If the American Guide can be applied then a further question is: what is the result of the application of principles and guidelines in that Guide?
We now turn to consider these issues and the questions arising.
ISSUE 1: CAN IMPAIRMENT TABLE 9.14 BE APPLIED?
Although Dr Eaton considers Mr Dawson is significantly impaired he concludes that no whole person impairment has occurred under Tables 9.10a Elbow Flexion/Extension or 9.10b Pronation and Supination of Forearm or under Tables 9.9.1a and 9.9.1b. However he considers that the Applicant is significantly permanently impaired as a result of his accepted work-related injuries. Those tables in his view do not adequately reflect the level of impairment the Applicant continues to suffer. Dr Eaton concludes that Mr Dawson has whole person impairment of 5% for the dominant extremity and 3% for the non-dominant extremity. He then reaches the conclusion that there is a functional incapacity of 10% whole person impairment as a result of applying the “Both Extremities” column under Table 9.14. The applicability of this column in the Table is in dispute.
In the Comcare Guide at 86 it is stated that:
“If the medical assessor feels that the impairment is not adequately assessed using one of Tables 9.9, 9.10 and 9.11 and the condition involves radiographically demonstrated joint stability, radiographically demonstrated arthritis or where the employee has had an arthroplasty the medical assessor may consider the effect of the injury on an upper extremity function instead and determine the WPI rating using Table 9.14.” (emphasis added).
According to the report of the radiologist Dr Cranney x-rays of both elbows are normal. Dr Eaton could not detect any obvious major abnormality in the x-rays. There did not appear to be any joint instability or any osteoarthritis and no evidence of an arthroplasty.
Notwithstanding this, we consider that Table 9.14 can be applied in this case. We do not consider that the language of the Comcare Guide prevents or prohibits the application of that table.
A similar question was considered by this Tribunal in Onorato and Comcare [2013] AATA 383. In that case the Tribunal decided that in the context of analogous provisions concerning the application of Table 9.3 where the medical assessor felt that Table 9.3 did not adequately assess the impairment, he could assess the degree of impairment under the functional Table 9.7 notwithstanding that there was a reduction in the range of motion of the joint. That Table dealt with lower extremity functions.
The fact that Mr Dawson does not satisfy all the provisions of the third paragraph on page 86, does not, in our view, prohibit or prevent the application of Table 9.14 in this case so as to ‘adequately assess’ the impairment. The purpose of the Guide is clearly to obtain an ‘adequate assessment’ of the impairment.
In reaching this conclusion we rely on the reasoningset out in Onorato at [12] – [23] and we consider this case on the basis that the medical assessor Dr Eaton feels that the impairment is not adequately assessed using the other Tables. The circumstance that the condition does not involve radiographically demonstrated joint instability or arthritis or arthroplasty does not prevent this. The Comcare Guide in terms does not preclude the use of Table 9.14.
ISSUE 2: IS THERE IMPAIRMENT OF 10% UNDER TABLE 9.14?
Having regard to the findings of Dr Eaton as to 5% and 3% impairments, in order to attain the 10% threshold it was necessary for him to apply the third column in Table 9.14 which concerns cases where there are impairments to both dominant and non-dominant extremities.
Comcare contends that this column cannot apply because each separate impairment must be assessed separately because they arise from separate injuries, and therefore the combined 10% whole person impairment requirement is not satisfied.
We agree with this and we do not consider the ‘Both Extremities’ column in Table 9.14 can be applied in this case.
At page 13 of the Guide it is stated:
“…where two or more injuries give rise to different whole person impairments, each injury is to be assessed separately and the final scores for each injury (including any combined score for a particular injury) added together.”(Emphasis added)
In this case there are two injuries which give rise to different whole person impairments and in these circumstances the above provision is clearly appropriate. As a consequence we consider the relevant exercise is to assess each injury separately and then add them together in accordance with the above paragraph at [26].
As the High Court noted in Canute v Comcare [2006] 226 CLR 535 at [11], the definition of “impairment” is expressed in terms of the effect on bodily parts. The Court emphasised the necessity to assess impairment in respect of each injury. At [10] their Honours said:
“First, the 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" (emphasis added).
These observations require this Tribunal to make its assessments in respect of each separate injury. Section 24(5) refers to the degree of impairment from an injury. It is clear from the judgement that the Court focused on the central importance of the assessment being made in respect of each individual injury.
In Fellowes v Military Rehabilitation and Compensation Commission (2009) 240 CLR 28 at [14] the Court observed that the concept of ‘an injury’ is of pivotal importance in the Act. At [21] the Court accepted the appellants submission at [16] that:
“…each injury having led to a separate impairment, the degree of permanent impairment of the employee that resulted from the injury was determined by looking to the consequences that followed from that injury. The consequences to be identified, so the appellant submitted, were the consequences that followed from the particular impairment as that term is defined in the SRC Act. In this case, because there were two injuries and two impairments, two amounts of compensation should be awarded.”(Emphasis added).
See also the observations of Buchanan J in Broadhurst v Comcare [2010] FCA 1034 at [12] – [15].
More recently, the Full Federal Court in Comcare v Lilley [2013] FCAFC 121 at [46] confirmed that:
“The statutory task under s 24 thus revolves around the occurrence of an “injury”, so that more than one injury can result from a single workplace incident, and each injury must be separately assessed. Although the determination of the degree of impairment arising from an injury is to be carried out by measuring the effect against the “whole person”, the High Court’s decision in Canute emphasises the whole person impairment approach operates in respect of a specific injury.” (Emphasis added)
Their Honours also referred to the “weakness” in the drafting of the Comcare Guide and in expression present in the Guide and noted that its construction may not be “straightforward”: see [47].
Having regard to the language in the passage from the Second Edition of the Comcare Guide quoted earlier and taking into account the observations in the authorities cited above and to the need for a common sense, beneficial and practical construction, we conclude that the ‘Both Extremities’ Table has no application in this case. Accordingly, the degree of impairment to Mr Dawson is less than 10%.
Since we conclude that Table 9.14 applies in the present case and that on its proper construction the extent of the impairments assessed by Dr Eaton fail to meet the 10% threshold, there is no basis on which to apply the American Guide. That Guide can be used in circumstances where the impairment is of a kind that cannot be assessed under the Australian Guide. The impairment in this case can and has been assessed under the Comcare Guide. . The fact that Mr Dawson does not satisfy the requirements of the Australian Guide does not mean that the Australian Guide does not apply. We note for completeness that the evidence of Dr Eaton in his report of 8 June 2013 is that “using AMA 5, impairment as suggested in my original report would be zero.”
DECISIONFor the above reasons the decision under review is affirmed.
I certify that the preceding 36 (thirty -six) paragraphs are a true copy of the reasons for the decision herein of the Hon. Brian Tamberlin QC, Deputy President and Dr R Blakley, Member .......................[sgd].................................................
Associate
Dated 21 November 2013
Dates of hearing 13 and 14 June 2013 Date final submissions received 14 June 2013 Counsel for the Applicant Allan Anforth Advocate for the Applicant David Lander Solicitors for the Applicant Lander & Co Counsel for the Respondent Peter Woulfe Advocate for the Respondent Andrew Dunlevey Solicitors for the Respondent Australian Government Solicitor