Dennis Baker and Linfox Armaguard Pty Limited
[2014] AATA 597
•25 August 2014
[2014] AATA 597
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/0091
Re
Dennis Baker
APPLICANT
And
Linfox Armaguard Pty Limited
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 25 August 2014 Place Brisbane The decision under review is affirmed.
........................................................................
Senior Member Bernard J McCabe
CATCHWORDS
COMPENSATION – Accepted liability for injury sustained at work – Claims for permanent impairment and non-economic loss – Applicant claims he has lost use of fingers – No medical evidence to establish that injury prevents applicant from using his fingers – Decision under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14; 24; 27
CASES
Page v Telstra Corporation Ltd [2004] FCAFC 80
SECONDARY MATERIALS
American Medical Association, AMA Guides to the Evaluation of Permanent Impairment, 5th Edition
Comcare, Guide to the Assessment of the Degree of Permanent Impairment, Edition 2.1
REASONS FOR DECISION
Senior Member Bernard J McCabe
25 August 2014
Dennis Baker was employed by Linfox Armaguard (“Linfox”) when he injured his right wrist at work in January 2010. Linfox accepted liability for the injury (described as a “fractured right distal radius”) under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) but subsequently rejected claims for permanent impairment under s 24 and non-economic loss under s 27. The reviewable decision in relation to the claims under ss 24 and 27 was made on 22 November 2012. Mr Baker has asked the Tribunal to revisit that decision.
Mr Baker concedes he suffers less than 10% impairment as a consequence of the accepted injury. Ordinarily, that would be fatal to his claim for permanent impairment as s 24(7) of the SRC Act provides a claimant must experience at least 10% impairment before he or she is eligible for compensation under s 24. But there are exceptions to the general rule. One exception is available where “the impairment [is] constituted by the loss, or the loss of the use, of a finger”: s 24(8)(a). Mr Baker has not lost his finger but says he has lost partial use of one or more digits. It is accepted s 24(8)(a) applies to a partial loss of the use of a digit: see Page v Telstra Corporation Ltd [2004] FCAFC 80 at [47]ff. Mr Baker says in his evidence that his fingers still work but he experienced pain when he gripped or squeezed hard. He agreed in cross-examination that he could still grip and squeeze hard, but said it hurts. He contends he experiences a 6% whole person impairment as a consequence, which is permanent. He claims he is entitled to compensation under s 24, and consequently under s 27, on that basis.
The outcome of this case turns on a careful analysis of the medical evidence, although there is also an issue over the precise interpretation of the words of s 24(8) in relation to the claim for permanent impairment. I shall deal with the medical evidence first before I consider the questions under ss 24 and 27.
THE MEDICAL EVIDENCE
Dr Coleman is an orthopaedic surgeon specialising in hands. He gave evidence and prepared two written reports (exhibits two and three) at the request of the applicant.
In exhibit two, Dr Coleman recorded his observations of the effect of the work-place accident on Mr Baker’s wrist. He also noted (at p 4) “[t]here is a partial loss of sensation in the radial nerve distribution over the first web space and dorsum of the index finger”. He added (at pp 4-5):He had full flexion and extension of his fingers. His median and ulnar nerve function was normal and his intrinsic, deep flexor and extensor strength was all normal. His thumb tendons were working normally and the thumb had a range of movement in all directions equal to the left side.
In exhibit three, Dr Coleman stated that he assessed the applicant’s grip strength using a Jaymar dynamometer. He observed a reduction in grip strength in the right hand accompanied by “slight pain” (p 2). In the course of exhibits two and three, he expressed his reservations about testing grip strength in the circumstances: he referred to the fifth edition of the AMA Guides to the Evaluation of Permanent Impairment (“the AMA Guide”) which says (at p 508) “decreased strength cannot be rated in the presence of decreased motion”. He only performed the test when the applicant’s lawyers persisted with the request.
Dr Coleman assessed Mr Baker as experiencing a 6% whole person impairment with reference to Tables 9.9.1a and 9.9.1b in the Comcare Guide to the Assessment of the Degree of Permanent Impairment, Edition 2.1 (“the Comcare Guide”). Those tables deal with the wrist.
In cross-examination, Dr Coleman agreed the radial nerve does not control the operation of the fingers. The operation of the fingers is controlled by the median and ulnar nerves.
Dr Watson, an orthopaedic surgeon, was called to give evidence by the respondent. In his first report (exhibit one at p 55ff), he noted at p 57 “some slight limitation of palmar flexion and dorsiflexion” (abnormal movements in the wrist), but he did not note any impact on the operation of the fingers. In his supplementary report, he noted Mr Baker had complained of pain in the hand when he held the steering wheel over long distances, but Dr Watson said that was to be expected (exhibit one at p 61). He did not indicate the pain was likely to be permanent. He also noted the applicant had lost some grip strength.
Dr Watson clarified his observation about reduced grip strength in the course of his oral evidence. He said he did not actually test for grip strength. He suggested there was no point in doing so because the results of any test were inevitably too subjective to be meaningful. I note that observation appears to be consistent with the guidance offered in the AMA Guide, to which Dr Coleman also referred. He said the result of the wrist surgery was good and noted he did not detect any neurological signs. Dr Watson also agreed in his oral evidence that the radial nerve does not play a role in the motor function of the fingers. He explained the radial nerve services the surface of part of the top of the hand. In those circumstances, any damage to the radial nerve would not affect the operation of the digits. He insisted he did not observe any loss of the use of the fingers.
The medical evidence can therefore be summarised as follows:
·There is nothing wrong with the applicant’s fingers or the median and ulnar nerves that control their use. The radial nerve – which does not control the operation of the fingers – may have been damaged in the workplace injury.
·Mr Baker may experience altered sensation on the top of the hand as a consequence of damage to the radial nerve, and some hand pain because of his wrist injury.
·The applicant may experience a reduction in grip strength in the right hand as a consequence of his wrist injury. I note his oral evidence suggests he has not experienced a loss of strength per se – merely that he experiences pain in his hand when he grips objects so that (I interpolate) he might prefer to grip them with less force. Given the medical experts have cast doubt on the appropriateness of tests of grip strength, I think I can and should accept the applicant’s explanation of his condition in the course of cross-examination.
HAS THE APPLICANT EXPERIENCED A LOSS OF THE USE OF A FINGER”?
The applicant says the pain and his reduction in grip strength impacts on his use of the fingers. He argues that is enough to bring him within s 24(8)(a).
Mr Black, counsel for Mr Baker, said it was irrelevant that any problem with Mr Baker’s use of the fingers might be caused by his wrist problems rather than the fingers themselves. He referred to the decision of the Full Court in Page to argue the inquiry mandated by s 24(8)(a) was strictly functional: has this man lost the whole or partial use of a finger? I accept that is the correct approach, although ultimately I do not think it helps the applicant.
I do not think the evidence establishes Mr Baker has actually experienced a loss, or even partial loss, of the use of his finger(s). The digits all still work, and he can still use them – albeit that he occasionally experiences some pain in the hand after prolonged activity, like gripping the steering wheel when driving long distances. None of the doctors were able to identify any loss of movement in the fingers – which is why none of them assessed there to be a permanent impairment under the tables in clause 9.8 of the Comcare Guide that deal with abnormal motion and sensory losses in the digits.
The medical evidence before me does not establish there is anything wrong with
Mr Baker’s fingers that stops him using them – but nor is there anything wrong with his wrist that stops him using his fingers. There may well be something wrong with his wrist that causes discomfort in the hand when he performs activities, but that is ultimately something that should be evaluated under the table dealing with wrists. His loss of grip strength falls into that category: to the extent he experiences a loss of grip strength, it is a problem in the wrist rather than the fingers.
CONCLUSION
The decision in relation to permanent impairment compensation under s 24 must be affirmed for the reasons I have already given. That means the claim for non-economic loss under s 27 must also fail as compensation under that section is only available if compensation is also payable under s 24.
I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe. ......................................................
Associate
Dated 25 August 2014
Date of hearing 30 June 2014 Counsel for the Applicant Mr M Black Solicitors for the Applicant Maurice Blackburn Lawyers Counsel for the Respondent
Solicitors for the Respondent
Mr P Woulfe
Moray & Agnew Lawyers
0