Domenico Onorato and Comcare
[2013] AATA 383
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2011/1953
General Administrative Division )Re: Domenico Onorato
Applicant
And: Comcare
RespondentDIRECTION
TRIBUNAL: The Hon Brian Tamberlin QC, Deputy President
DATE: 18 July 2013
PLACE: Canberra
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application at paragraph 24 to replace “54” with “45”.
...............................[sgd]....................................
The Hon Brian Tamberlin QC, Deputy President
[2013] AATA 383
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/1953
Re
Domenico Onorato
APPLICANT
And
Comcare
RESPONDENT
Decision
Tribunal Hon. Brian Tamberlin, QC, Deputy President and
Dr M Couch, MemberDate
6 June 2013
Place
Canberra
The decision under review is affirmed.
...............................[sgd].........................................
Hon. Brian Tamberlin, QC, Deputy President
COMPENSATION – knee injury – liability denied for permanent impairment and non-economic loss – lower extremity injury – whether permanent impairment could be assessed on Comcare Guide – construction of instructions in Chapter 9 of the Guide – whether Table 9.7 invalid – applicability of the American Medication Association Guide – decision under review affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 24, 27
Broadhurst v Comcare [2010] FCA 1034
Lilley v Comcare [2013] FCA 26Comcare Guide to the Assessment of the Degree of Permanent Impairment (Second edition)
American Medical Association, 2001, Guides to the Evaluation of Permanent Impairment (Fifth edition) Chicago: American Medical Association
REASONS FOR DECISION
Hon. Brian Tamberlin, QC, Deputy President and
Dr M Couch, Member6 June 2013
This is an application for review of a decision by Comcare of 18 February 2011 affirming an earlier decision rejecting the Applicant’s claim for compensation under ss 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act). The decision-maker found that as a result of an injury to his right knee, the Applicant suffered a degree of impairment of less than 10%, which could be attributed to the injury.
Issues
The issues in this application are:
(a)whether the extent of any impairment to the Applicant can be determined in accordance with Table 9.7 of Comcare’s Guide to the Assessment of the Degree of Permanent Impairment (Second edition) (the Comcare Guide); or
(b)whether Table 9.3 is the only available basis for assessment of the degree of impairment;
(c)if Table 9.7 applies what, if any, is the extent of the impairment arising from the Applicant’s injury;
(d)whether the Federal Court decision in the matter of Lilley v Comcare [2013] FCA 26 renders Table 9.7 invalid and, if so, the impact of any such invalidity on the Applicant’s case;
(e)whether the American Medical Association’s Guides to the Evaluation of Permanent Impairment (5th edition) (AMA5) is available or should be applied; and
(f)if the answer to (d) is yes, what is the outcome.
Background
The Applicant is an employee of the Commonwealth Superannuation Administration. On 16 March 2007 he tripped and fell over a furniture trolley in the course of his employment, injuring his right knee and ankle. On 11 April 2007 he submitted a claim for compensation and on 8 May 2007 Comcare accepted liability for a “sprain of unspecified site of knee and leg (right)” (the right knee injury) under s 14 of the SRC Act. On 6 May 2010 Comcare accepted liability for a “(secondary) condition”, “chronic pain syndrome”. In a determination of 13 December 2010, Comcare rejected liability to pay compensation for the Applicant’s accepted conditions under ss 24 and 27 of the SRC Act, and found that the Applicant suffered a degree of impairment of less than 10%. In the reviewable decision of 18 February 2011, Comcare affirmed the determination of 13 December 2010 because it was not satisfied the Applicant suffered at least a 10% whole person impairment that could be attributed to the right knee injury. An application for review was lodged with the Tribunal on 28 March 2011.
The legal framework – the Comcare Guide
In Broadhurst v Comcare [2010] FCA 1034 at [12] – [15] Buchanan J described the operation of the Comcare Guide as follows:
12Section 28 of the SRC Act authorises Comcare to prepare a document called Guide to the Assessment of the Degree of Permanent Impairment (“the Comcare Guide”) setting out criteria by reference to which the degree of any permanent impairment of an employee resulting from an injury shall be determined. The Comcare Guide must be approved by the relevant Minister and is a disallowable legislative instrument. Section 28(4) of the SRC Act makes the Comcare Guide binding on primary decision makers (including Comcare itself) and on the AAT.
13The current version of the Comcare Guide (the Second edition) is dated 2005 and came into effect for claims received after 28 February 2006. Ms Broadhurst’s claim was made on 29 September 2006 and the Second Edition of the Comcare Guide therefore applied to the assessment of her claim for compensation. The Comcare Guide identifies diagnostic and functional characteristics of a wide variety of disabilities, conditions and diseases and assigns a percentage degree of “whole person impairment” at increasing levels of severity, often (but not only) in 5% bands.
14From time to time there has been criticism of the extent to which the Comcare Guide has been or is faithful to the legislative directives in the SRC Act governing its preparation and content… [citations removed].
15In particular, instructions in the Comcare Guide concerning use of the notion of whole person impairment have been challenged. The High Court made it clear in Canute [v Comcare [2006] HCA 47] that the impairment which is to be assessed under s 24 is an individual “impairment” in the sense defined in s 4 – namely, one concerning a part of the body or a bodily system or function. Section 24(5) refers to “the degree of permanent impairment of the employee”. It has been made clear that the reference to “impairment” in s 24(5) is to the same “impairment” referred to in s 24(1) – i.e. impairment in the defined sense, assessed individually. The High Court then made clear in Fellowes that, in the case of each individual assessment under s 24, any reference in the Comcare Guide to “whole person impairment” may only be used to make an assessment, in respect of individual injuries, of how the particular impairment would reduce the functional capacities of a normal healthy person.
Issue (a) – Does Table 9.7 apply?
Comcare submits that Table 9.7 cannot apply in this case for several reasons.
Firstly, Comcare refers to the condition specified in the Introduction to Part I of Chapter 9 on page 76 of the Comcare Guide (the Introduction), which requires the medical assessor must “feel” that a condition is not adequately expressed using Table 9.3, or other specified Tables not relevant in this case, before considering the effect of the injury on gait and determine the rating using Table 9.7. This is said to reflect an intention that Table 9.7 can only be used if Table 9.3 is first considered and there is no significant reduction in the range of motion.
Secondly, Comcare refers to the Introductions to the Tables including the preamble to Table 9.7, on page 84, and submits that because in this case there is a reduction in the range of motion of a joint, the medical assessor cannot assess the impairment by reference to Table 9.7, which is concerned with “functional” impairment.
Thirdly, Comcare says that the unavailability of Table 9.7 in this case, and the application of a range of motion Table, is consistent with the purpose of the compensation scheme which is to apply an objective test and to encourage rehabilitation.
Fourthly, it submits that application of Table 9.7 would render superfluous the specific qualification that there is no loss of motion caused.
Fifthly, the exclusion of Table 9.7 is not inconsistent with the approach taken by the SRC Act, as reflected in s 24(7), which denies compensation where the degree of impairment is less than 10%. The SRC Act specifically contemplates that if a claimant does not meet the 10% threshold test the claim must fail. It is clear that the simple fact that an applicant did not meet the 10% threshold using Table 9.3 does not, of itself, indicate that the assessment is inadequate because failure to meet the threshold is contemplated and provided for in s 24(7).
Sixthly, Comcare further submits that the Applicant gets no support from paragraph 8 of the Principles of Assessment in Part 1 of the Comcare Guide, which requires that where two or more Tables are equally applicable to an impairment, the decision-maker must assess the impairment on the Table that yields the most favourable result to the employee. This is because Tables 9.3 and 9.7 are not equally applicable. Table 9.7 for example requires a previous assessment under Table 9.3 before it can operate. Table 9.3 has no such preliminary requirement.
Reasoning ON AVAILABILITY OF TABLE 9.7
There is nothing in the language of the relevant Second edition of the Comcare Guide which prevents the Applicant from being assessed under Table 9.7. This can be contrasted with corresponding provisions in the Introduction to Part I of Chapter 9 in Edition 2.1, which expressly excludes the use of Table 9.7 if requirements of Table 9.3 are not satisfied: See Edition 2.1 of the Comcare Guide.
In the Second Edition there are numerous instances of specific prohibitions on exclusion of the use of the certain Tables. For example, in the third paragraph of the Introduction there is a requirement that certain Tables “must not be combined” (emphasis added). And on in the preamble to Table 9.7 there are express prohibitions or limitations on the use of Table 9.7 to assess impairment. Other examples of express prohibitions in the Comcare Guide are in the preamble to Table 9.14, on page 108, in relation to upper extremity function.
By way of contrast, the language of the Table 9.7 preamble is that in certain circumstances the assessor should “consider the effect” and use of Table 9.7. This is the language of expectation or suggestion and not that of command.
The application of the interpretation advanced for Comcare would provide a harsher than reasonable outcome that a person with no reduction of movement could use Table 9.7, whereas a claimant with significant reduction could not, even if the medical assessor “feels” that the applicant is not adequately assessed under Table 9.3. Such an interpretation should not be adopted unless there is clear language which compels this outcome.
Moreover, the general language and objectives referred to in the Second Reading Speech are not sufficient to displace the specific language of the Comcare Guide, which is published 17 years later, with specific provision in relation to the particular injury under consideration.
Further, we do not accept the submission that Table 9.7 and 9.3 are not “equally applicable” to the conditions in the present case. They are both concerned with the impairment arising in relation to the lower extremities.
The express exclusion of Table 9.7 in Edition 2.1 of the Comcare Guide, in our view, further supports the conclusion that the “mischief” sought to be remedied by this express provision was the fact that the Second edition of the Comcare Guide did not exclude application of Table 9.7.
Having regard to the beneficial nature of the legislation in this case lends further support to the conclusion that the Applicant is entitled to have an assessment made under Table 9.7, provided that he can meet the conditions relating to application of the criteria in that Table.
We note that Mr Anforth for the Applicant has submitted that Table 9.7 is relevant in the present case, because the Applicant’s claim is for loss of function and can only be assessed under Table 9.7 which is directed to “Lower Extremity Function”. He says the impairment in this case is a weight-bearing problem, which is a “functional” problem and not a “range of movement” problem. The claim is for functional impairment not for loss of motion. His submission is that the Applicant has characterised his claim as being a functional impairment and that this characterisation must therefore determine which Table is applicable.
We do not accept this submission. The proper characterisation of the nature of the claim is one for the decision-maker having regard to all the circumstances and cannot be determined by assertions made by an applicant on his claim form as to what type of claim it is.
For the above reasons, we consider that the degree of impairment of the Applicant can be assessed in accordance with Table 9.7, and that this is not precluded by a failure to meet the requirements of Table 9.3, so that Table 9.3 is not the only available basis for assessment.
THE MEDICAL EVIDENCE
We now turn to consider the medical evidence relating to the claim.
Mr Onorato was aged 54 years at the time of the Hearing and had worked for ComSuper since 1990. On 16 March 2007, while collecting office chairs, he tripped over a furniture trolley in a car park in the dark and sustained a direct blow to the anterior right knee. He has reported ongoing knee symptoms since then. He has been treated by Dr Lo, sports physician, and Dr Maria McPhail, general practitioner. He was also referred to Dr Michael Gillespie, orthopaedic surgeon. Subsequently he has seen various specialists, both for further opinions on diagnosis and treatment, and also for medico-legal assessments.
An arthroscopy by Dr Gillespie in April 2008 showed a normal medial meniscus despite apparent abnormalities on a prior MRI scan. He also found Grade 3 chondral damage to the medial facet of the patella and a large thickened superomedial plica, which was resected. The chondral damage was abraded to a stable base. Symptoms, including swelling, persisted. He had physiotherapy and hydrotherapy.
Mr Onorato consulted further orthopaedic surgeons. Dr Geoffrey Stubbs recommended conservative treatment, while Dr Alexander Burns suggested further arthroscopy and lateral release.
In addition to the initial knee problem following the injury, there have since been features suggestive of the development of a secondary chronic regional pain syndrome. Additional symptoms have included hypersensitivity around the knee, paraesthesia, hot and cold sensations, and at times pain thought to be more severe than would be expected from the demonstrated knee pathology.
Mr Onorato was first referred to Dr Garth Eaton, an occupational physician, in December 2008. There are also reports from Dr Eaton dated 22 January 2008, 26 July 2009, 20 April 2010, 7 August 2010, 14 June 2010, 30 May 2011 and 20 June 2011.
In his report of 14 June 2010, Dr Eaton stated:
I believe there has been a demonstrated physical component to his condition. He does have evidence of patello-femoral dysfunction, degenerative changes and Grade 3 chondral damage to the medial facet of the patella confirmed on arthroscopy. Dr Al[exander] Burns, orthopaedic surgeon, has recommended a lateral release to lessen the chance of further deterioration in chondral damage. There has also been an effusion in the joint. While the structural changes may be considered relatively minor, they could still form a basis for the development of a symptomically more severe regional neuropathic pain disorder. Such disorders not uncommonly occur after quite minor injury...
Consultation notes from Dr Eaton dated 10 May 2011 detail his ongoing right knee symptoms, restrictions and treatment and mention ongoing pain:
Worse pain,tenderness/allodynia at night. Much the same, a bit worse. Tired mowing the lawn, vacuuming. Sitting at work moves around. Rests paces etc. Stairs worse going up. Limps.
Examination: [Tender suprapatellar] region, VMO smaller. Anterior draw OK. Clicking, uncomfortable. Flexion deformity 30 degrees, difficulty straightening knee. Thigh circumference 42.5cm, left 43cm. Calves 36cm, R[ight]=L[eft]. Shiny skin.
In his report of 30 May 2011, Dr Eaton noted that Associate Professor Barnsley had mentioned a component of neuropathic pain, and supported this diagnosis.
In his report of 20 June 2011, Dr Eaton reviewed further documentation. He diagnosed:
Chronic right knee pain which has occurred on the background of patello-femoral dysfunction, chondromalacia patellae/chondral defects, patellar tendinosis, quadriceps tendinosis (enthesophyte at site of tendon insertion) with heterotopic ossification, small tear medial patellar retinaculum (ultrasound 2.11.2010), an old partial tear anterior cruciate ligament (MRI 27.04.2011).
Associate Professor Les Barnsley, consultant rheumatologist, 22 February 2010, described symptoms as persistent anterior knee pain and difficulty with mobility, particularly negotiating stairs, burning pain in the knee, hypersensitivity to touch and audible crepitus.
On examination, he found that Mr Onorato walked with a slight limp. He found a possible small effusion in the right knee and range of movement from 0⁰-120⁰ (compared to 0⁰-130⁰ on the left). He found mild retropatellar crepitus and found the right thigh 10cm proximal to the patella to measure 1cm smaller than the left (Mr Onorato was reported to be left-handed). He found moderate tenderness around the knee, particularly over the medial patella, and at the insertion of the patellar tendon. He found subjectively altered sensation over the knee, but no colour or sweating changes.
Associate Professor Barnsley concluded:
In summary, this gentleman has a history of a fall directly onto the front of the knee with the subsequent development of an effusion and on arthroscopy was demonstrated to have some chondral softening on the back of the patella. This would be a gold standard evaluation and I consider this is a more important finding than the interpretation of MRI scans...
I believe he has some patellofemoral dysfunction as evidenced by the findings on arthroscopy, the history of anterior knee pain, worse going up and down stairs, and the finding of crepitus and tenderness over the medial patellar facet. I believe he has the additional problems stemming from his initial injury, of a chronic pain syndrome with allodynia and hypersensitivity in the region of his knee. Chronic regional pain states can follow apparently trivial injury to peripheral structures and may persist for months or years. The aetiology is thought to stem from altered central processing of pain and seems to reflect alterations in the way that pain signals are handled. They can follow peripheral surgical procedures as well.
Associate Professor Barnsley commented on prognosis and recommendations for treatment, but was not asked to assess the question of permanent impairment in this report.
In a further report of 15 July 2011, Associate Professor Barnsley noted that Mr Onorato reported ongoing symptoms in his right knee. An ultrasound from October 2010 was reported to show enthesopathy of the quadriceps patellar insertion. MRI scan of the right knee in April 2011 was reported to show an enthesophyte of the quadriceps insertion and minor patellar tendinosis.
Associate Professor Barnsley obtained a history of ongoing knee pain, with at least some of the pain at the proximal pole of the patella. In his examination on this occasion, Associate Professor Barnsley did not comment on Mr Onorato’s gait. He again found range of motion of the knee from 0⁰-120⁰ (compared with 0⁰-130⁰ on the left), and found no alteration of skin colour or temperature. He did not report on observed functional activities (walking pace and endurance, negotiation of stairs and ramps, getting out of a chair, listed as criteria in Table 9.7).
On this occasion, Associate Professor Barnsley considered that there were two diagnoses: Patellar tendinitis and enthesopathy, and a neuropathic pain state. Later in the report, Associate Professor Barnsley went on to state:
No, I do not believe that employment contributed meaningfully to his condition for at least the last two years.
However, he did not fully explain this conclusion.
In this report, he assessed Whole Person Impairment (WPI) according to the Second Edition of the Comcare Guide. He noted that from Table 9.3, flexion needs to be less than 105⁰ to reach the criteria for 5% WPI. He went on to interpret the Comcare Guide as stating that, because there was some reduction of range of movement, Table 9.7 could not be used.
Comcare Guide – Table 9.3
In his telephone evidence Dr Eaton was asked if he could alternatively assess impairment from Table 9.3, because he reported 30⁰ loss of knee extension (Table 9.3 states that “flexion contracture of 20⁰ or greater” gives 14% WPI). He replied that he felt that range of movement alone would not do Mr Onorato justice, and considered that a functional Table (9.7) would be more applicable.
On questioning, Dr Eaton said that “he thought” he had used a goniometer for recording range of knee motion. The Tribunal has seen a single recording of 30⁰ loss of knee extension (fixed flexion deformity) by Dr Eaton in May 2011. However, at both his examinations in February 2010 and July 2011, Associate Professor Barnsley recorded full extension (0⁰) and flexion to 120⁰ on the right and 130⁰ on the left. Dr Stubbs (orthopaedic surgeon) in June 2009 reported “full range of movement once he gains confidence in the examiner”. Dr Burns (orthopaedic surgeon) in August 2009 reported range of movement as -10⁰ (hyperextension) and flexion to 110⁰ on the right, compared to -10⁰ (hyperextension) and flexion to 130⁰ on the left. In light of this evidence, we conclude that it would not be reasonable to assess greater than 0% WPI according to Table 9.3.
Comcare Guide – Table 9.7
On page 4 of his report dated 20 June 2011, Dr Eaton states:
Table 9.7 Lower Extremity Function, walks at a moderately reduced pace in comparison with peers on level ground, unable to negotiate 3 or more stairs without use of rails. Unable to rise from sitting to standing position without use of hands i.e. 20% whole person impairment. This would seem to be the most appropriate Table to use to recognise the dysfunction and disability experienced by Mr Onorato.
In his evidence, Dr Eaton confirmed that the above assessment was based on his direct and close observation of Mr Onorato. He described taking him out of the building, and walking him up and down a ramp. He said that Mr Onorato had to push himself up from a chair. He showed difficulty walking and used a rail when negotiating stairs or a ramp.
In cross-examination Mr Onorato confirmed that he had attended Dr Eaton in May 2011 at the request of his solicitors. He stated that he spent between an hour and an hour and a half with Dr Eaton. He described walking in the car park outside Dr Eaton’s rooms, walking on a “small hill” and using stairs, over a period of about 20 minutes. Mr Onorato said that he had understood that this was so that Dr Eaton could assess him under Table 9.7. When Counsel asked if he had been told what would constitute an impairment on the Tables, Mr Onorato said that he had not.
Dr Eaton maintained his assessment of the nature and severity of Mr Onorato’s knee condition under cross-examination. Describing his own training in the Second edition of the Comcare Guide he recalled that the trainer had “Been very adamant that we should apply the most advantageous method, and not exclude Table 9.7”.
Dr David Bornstein, orthopaedic surgeon, 14 May 2009 reported a small effusion in the right knee joint and some tenderness. There is no record of range of movement or functional observations.
Dr Stubbs, orthopaedic surgeon, 19 June 2009 reported bilateral crepitus, worse on the right with much more discomfort, and “full range of movement once he gains confidence in the examiner”. He did not report observed functional observations (walking tolerance, stairs, slopes or getting out of a chair).
Dr Burns, orthopaedic surgeon, 6 August 2009 described a “small limp”, walking with a stiff knee, range of movement -10⁰-100⁰right, and -10⁰-130⁰ left. He reported approximately 60% right quadriceps bulk compared with the left. He did not record any other functional observations.
Dr Nicholas Burke, occupational physician, 29 November 2010, like Associate Professor Barnsley, reported range of movement as 0⁰-120⁰ right knee, and 0⁰-130⁰ left knee. He stated that Mr Onorato could perform a half squat. Other than noting no instability in the knee and no major pain symptoms during resisted extension, no other functional observations are reported.
Associate Professor Barnsley stated in evidence that, having found a reduced range of active flexion in the right knee, he understood use of Table 9.7 to be precluded. He had therefore not observed Mr Onorato walking over a distance or negotiating stairs or a ramp.
Thus the only report of observed functional activities, which might allow assessment by Table 9.7, is from Dr Eaton. The Tribunal accepts Dr Eaton’s evidence which was tested during the hearing and not shown to be wrong. No alternative evidence has been presented.
The Tribunal therefore concludes that the degree of WPI of the Applicant should be assessed at 20% under Table 9.7. However, assuming it is valid, for reasons given below at [66] – [69] , on the present state of the law as expounded by Rares J in Lilley v Comcare [2013] FCA 26, we consider that Table 9.7 is invalid. Accordingly the Tribunal must turn to the American Assessment Guide.
American Medical Assessment GUIDE 5th Edition
Paragraph 12 of the Principles of Assessment in Part 1 of the Comcare Guide states that:
In the event that an employee’s impairment is of a kind that cannot be assessed in accordance with the provisions of Part 1 of this Guide, the assessment is to be made under the edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment current at the time of assessment. (AMA 5)
Chapter 17 of AMA 5 addresses lower extremity impairment assessment in detail. Table 17-1 on page 525 lists possible methods of assessment, and Table 17-2 on page 526 lists those which may and may not be combined.
The Tribunal has applied the findings of Associate Professor Barnsley at his two examinations to AMA 5. We have also considered the findings of Dr Eaton but, as mentioned above, do not consider that the 30⁰ fixed flexion deformity of the right knee which he reported on one occasion can be accepted. In relation to flexion, applying the most limited flexion result of 110⁰, as recorded by Dr Burns, yields a Nil WPI rating according to Table 17-10 (Range of Motion table for Knee Impairment).
Examinations and evidence have failed to show limb length discrepancy or any significant muscle atrophy. In particular there was no evidence of ankylosis, amputation or skin loss, nor was there was evidence of peripheral nerve injury or vascular disturbance.
Although there is some reference to regional pain syndrome (described as complex regional pain syndrome type 1 or CRPS), very strict and extensive criteria apply for diagnosing and using this under AMA 5. These are not satisfied in the present case.
Other possible methods of assessment under this Guide include: “arthritis of joints, range of motion, gait derangement or diagnosis-based”.
Mr Onorato was noted to walk with a limp. However, section 17.2c on page 529 states that:
Except as otherwise noted, the percentages given in Table 17.5 [used for assessing impairments due to gait derangement] are for full-time gait derangements of persons who are dependent on assistive devices.
As Mr Onorato does not apparently use a stick, crutch or similar, Table 17.5 is not applicable.
Table 17-31 (Arthritis impairments based on roentgenographically determined cartilage intervals) relies on assessment by reduced cartilage joint space on X-rays performed by standard methodology. These are not available in Mr Onorato’s case. Moreover, from the results of MRI and arthroscopy in evidence, it is unlikely that there is any assessable impairment under Table 17-31.
Notwithstanding the parties’ submissions that no AMA Table is applicable to Mr Onorato, we consider that the footnote to Table 17-31 in that Guide applies in this case. That footnote reads:
In an individual with a history of direct trauma, complaint of patellofemoral pain, and crepitation on physical examination, but without joint space narrowing on x-rays, a 2% whole person or 5% lower extremity impairment is given.
Associate Professor Barnsley reported crepitus, as did Dr Eaton, and there was a history of direct blow to the anterior knee. Therefore, 2% WPI from Table 17-31 applies.
Referring to Table 17-33 (Impairment estimates of certain Lower Extremity Impairments) on page 546-547 of AMA 5, Mr Onorato’s case does not fit any of the listed diagnostic categories for the knee, and therefore this table cannot be used.
Thus, based on the information available from previous physical examinations, assessment by AMA 5 results in only a 2% WPI under Table 17-31. As assessed under the AMA 5, the impairment does not meet the 10% WPI threshold under the SRC Act.
Lilley’s Case
After this matter was heard and all further submissions were filed in this matter, Rares J of the Federal Court of Australia handed down his decision in Lilley v Comcare [2013] FCA 26 on 25 January 2013, in which he held that the criteria for 5% and 10% impairment in Table 9.7 of the Comcare Guide are invalid. That decision is presently on appeal.
We consider the consequence of Lilley’s case is that the whole of Table 9.7 must be treated as invalid and not simply those provisions relating to 5% and 10% impairment. This is because the criterion concerning “ability to negotiate three or more stairs”, which was found to be invalid, is present as a recommendation in other minor criteria for estimating the impairment percentages in relation to 20%, 30% and 40% impairment and permeates the whole Table. It cannot be suggested that, notwithstanding the invalidity of this criterion, the residue of the Table as a whole was intended to have effect with this factor excluded from consideration. For example, in relation to 20% impairment three criteria were set out one of which is the invalid criterion.
The Respondent submits that the other percentage criteria in Table 9.7, in respect of 20%, 30% and 40% WPI, are not insurmountable because the other criteria are still available, and can still be applied and it may be possible in a particular case to find that two of the three or more required Minor Criteria are satisfied. However, in our view, Table 9.7 was clearly formulated on the basis that all the Minor Criteria would be available for consideration. Consequently, the invalidity of one central criterion, although a “Minor” Criterion, so substantially changes the operation of the Table as a whole that the whole Table must be considered invalid.
If Table 9.7 is invalid then the medical assessor cannot apply that Table in the present case and circumstances.
The outcome then is that Table 9.3 is the only Table that can apply and under that Table the Applicant has a WPI rating of Nil and, therefore, does not satisfy the 10% WPI threshold of the SRC Act.
Even if one assumes that Table 9.3 is not available, and that an assessment could be made under the American Medical Association Guide, the Applicant must fail for the reasons given above at [54] – [64].
The Tribunal is bound by the decision in Lilley from which it follows that Table 9.7 is invalid. Therefore, Table 9.3 is the only relevant Table and on the application of that Table we determine that the decision under review of the Respondent is affirmed.
I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Hon. Brian Tamberlin, QC, Deputy President and, Dr M Couch, Member ...........................[sgd].............................................
Associate
Dated 6 June 2013
Dates of hearing 12 and 13 November 2012 Date final submissions received 25 March 2013 Counsel for the Applicant Mr A. Anforth Advocate for the Applicant Mr W. Hawkins Solicitors for the Applicant Maurice Blackburn Lawyers Counsel for the Respondent Mr M. Gollan Advocate for the Respondent Mr P. Dennien Solicitors for the Respondent Dibbs Barker
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