Edwards and Comcare
[2001] AATA 522
•13 June 2001
DECISION AND REASONS FOR DECISION [2001] AATA 522
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/1825
GENERAL ADMINISTRATIVE DIVISION )
Re BENJAMIN LEIGH EDWARDS
Applicant
And COMCARE
Respondent
DECISION
Tribunal Senior Member M D Allen
Date13 June 2001
PlaceSydney
Decision The decision under review is affirmed.
(Sgd) M D ALLEN
..............................................
Senior Member
CATCHWORDS
WORKERS COMPENSATION - Application to apply American Medical Association Guide. Held although Comcare Guide assessment inadequate an assessment could still be made under that document therefore regard could not be had to American Medical Association Guide. Criticism of the poorly drafted Comcare Guide reiterated.
Safety, Rehabilitation and Compensation Act 1988 - ss24, 27 and 28
Whittaker v Comcare 86 FCR 532
Re Pavic and Comcare 24 AAR 52
REASONS FOR DECISION
13 June 2001 Senior Member M D Allen
On 4 August 1998 an officer of the Military Compensation and Rehabilitation Service, as a delegate of Comcare administering the Safety, Rehabilitation and Compensation Act 1988 (the SCR Act) as amended by the Military Compensation Act 1994, accepted liability for the injury to the Applicant described as "a Grade 4 dislocation of the acromio-clavicular joint of the right shoulder".
On 10 August 1998 the Applicant submitted a claim for permanent impairment pursuant to s24 of the SRC Act. That claim was rejected on 11 March 1999 on the grounds that the degree of impairment did not amount to 10% on the Comcare Tables, that is to say in the tables contained in the "Guide to the Assessment of Permanent Impairment" published pursuant to s28 of the SRC Act.
The decision rejecting the Applicant's claim was affirmed in a "reviewable decision" dated 7 October 1999.
Section 24 of the SRC Act states inter alia:
"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.
(3) …
(4) …
(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.
(8) …
(9) …"
Whereas s28 of the SRC Act states:
"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.
(2) Comcare may, from time to time, by instrument in writing, vary or revoke the approved Guide.
(3) A document prepared by Comcare under subsection (1), and an instrument under subsection (2), have no force or effect unless and until approved by the Minister.
(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.
(7) When a document prepared by Comcare in accordance with subsection (1), or an instrument under subsection (2), has been approved by the Minister, Comcare shall cause copies of the document or instrument, as the case may be, to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives those copies.
(8) Comcare shall make copies of the "Guide to the Assessment of the Degree of Permanent Impairment" that has been approved by the Minister, and of any variation of that Guide that has been so approved, available upon application by a person and payment of the prescribed fee (if any).
(9) Sections 48 (other than paragraphs (1)(a) and (b) and subsection (2)), 49 and 50 of the Acts Interpretation Act 1901 apply in relation to a document, being the approved Guide or an instrument varying or revoking that Guide that has been approved by the Minister, as if, in those sections, references to regulations were references to such a document and references to a regulation were references to a provision of such a document.
(10) For the purpose of the application of the provisions of the Acts Interpretation Act 1901 in accordance with subsection (9), a document referred to in that subsection shall be taken to have been made on the date on which it was approved by the Minister under this section."
That the Comcare Guide is an imperfect instrument has been recognised on many occasions by this Tribunal and also by the Federal Court - see the detailed criticism of the Guide in Whittaker v Comcare 86 FCR 532 by the Full Court of the Federal Court.
Following the receipt of the Applicant's claim for permanent impairment, the Applicant attended at the surgery of Dr Harvey-Sutton, consultant occupational physician. In the opinion of Dr Harvey-Sutton, the Applicant suffered a 5% impairment under Table 9.1 of the Guide and, under Table 9.4 a 0% impairment.
On 20 September 1999 Mr Ian Davison, Orthopaedic Surgeon, forwarded a report to RAN Hospital Nowra and a copy of that report to the Respondent. In that report he stated (T18):
"I have been asked to give an opinion on the percentage disability as rated by Dr. Harvey-Sutton. According to Tables 9.4 and 9.1 of the Comcare Guide, I would agree with Dr. Harvey-Sutton's assessment of 0% and 5% respectively. In accepting those figures within the definitions provided by the Comcare Tables, I would note that I regard those Tables as totally inadequate in their representation of disability."
Notwithstanding Mr Davison's report, the decision that the Applicant was not entitled to compensation for permanent impairment was affirmed. On 6 December 1999 the Applicant sought review of the "reviewable decision" of 7 October 1999 by the Administrative Appeals Tribunal.
Currently the Applicant is working outside Australia and, with the consent of the parties, this matter was dealt with by me "on the papers".
The Applicant's case, as set out in his application for review is:
"It was with Dr. Davison that I discussed at length the restrictions imposed on me due to the pain factor associated with calcification and removal of some of my collarbone and the insertion of a large screw. He sympathised but with the MCRS Tables at his disposal, he was restricted to them. He said to assess me under these Tables was unjust, that he had been involved with this type of thing before and believed the definitions on the Tables were too vague to pass judgement where fair and detailed assessment should be the standard.
Under the MCRS Table 9.1 I was assessed with 5% Whole Person Impairment, which I do not necessarily disagree with. It is the fact that the delegate, Mr. Andrew Morris, suggested being assessed under the American Medical Association (AMA) Guidelines, which I had not been aware of, was not an option as I had been assessed under the MCRS Tables. It is the fact that both Dr. Davison and I both agree that these tables are not a fair and just criteria for my disability to be assessed against. It is due to these circumstances that I am appealing to be assessed under the AMA Guidelines."
At the request of the Respondent, Dr Harvey-Sutton had regard to the American Medical Association Guide (AMA Guide). In a report dated 11 October 2000 she opined:
"However, if Comcare determines to make the assessment under the provisions of the current American Medical Association's Guide, which is Edition 4, although within the past 2 months, the 5th Edition has become available in America, then the degree of permanent impairment would be as follows:
Based on the history and clinical examination of the report of 5 February 1999, he would have a 2% upper extremity loss, which translates to a 1% whole person impairment."Mr Davison prepared a further report dated 25 July 2000 pertaining to the Applicant's case. In that report he stated:
"My comment regarding the inadequacy of the Comcare Tables in representing disability is that they assess impairment only in terms of range of movement (Table 9.1) or activities of daily living (Table 9.4). They take no account of pain, weakness, or functional impairment that limits normal vocational and recreational activity.
Assessment of disability is unavoidably subjective, and the tables attempt to make it objective. My personal opinion, subjective as it is, is that you have a 10% impairment of the right upper limb, which is based principally on pain and loss of function, but has no relevance to stiffness or activities of daily living."
At page 5 of the Comcare Guide the following passage occurs in a chapter entitled "Principles of Assessment":
"Inapplicability of the Guide
In the unlikely event that an employees' impairment is of a kind that cannot be assessed in accordance with the provisions of the Guide, Comcare may direct that assessment be made under the provisions of the current American Medical Association's Guides."
The said AMA Guide has been utilised in the past. For example in Re Pavic and Comcare 24 AAR 52 the Tribunal directed that Comcare use the AMA Guide to assess permanent impairment as the Comcare Guide did not adequately deal with the Applicant's referred pain. At 24 AAR p60 the Tribunal said:
"Having regard to the principles re-stated by Olney J in Commissioner for Safety, Rehabilitation & Compensation of Commonwealth Employees v Ticsay (38 FCR 181, 16 AAR 241), it is clear that the discretion (to use the AMA Guide) is to be used in appropriate cases and this is one such case, as the Comcare Guide fails totally to provide a mechanism to assess the impairment incurred by the applicant's referred spinal pain."
In a letter to the Tribunal dated 30 September 2000 the Applicant said:
"Both doctors Harvey-Sutton and Davison have made assessments under this Comcare guide, but this only ascertains the level of loss of movement if under 10%, which in this case is not proportional to the level of pain and suffering. I understand that they have made the 5% assessment in accordance with the guide, but this is not the total impairment suffered, and therefore is incorrect.
If the pain and suffering are the major factor for a compensation claim, not the loss of movement, then to assess for purely the lesser of the two restrictions is not only incorrect, but unjust. I realise the tables allow for the pain and suffering to be taken into account, after the applicant has satisfied Comcare that the restriction of movement is equal to, or above, 10%, but as discussed with Dr. Davison, this is not a complete or adequate assessment where pain and suffering are paramount. This may be correct with a majority of injuries, but in my case, as Dr. Davison has also stated, that the Tables are inadequate for the assessment of my injury, due to the fact that the loss of movement does not give a true indication of the level of total impairment the injury has caused."
Subsection 27(1) of the SRC Act states inter alia:
"(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."
For whatever reason the SRC Act, whilst providing for compensation for pain and suffering, restricts that pain to circumstances where the threshold qualification of 10% impairment or more as per subs24(5) has been met.
Further, as pointed out by the solicitor for the Respondent in her submissions to the Tribunal, restrictions on vocational activities are compensated pursuant to s19 of the SRC Act and this calculation is independent of the Comcare Guide.
In Whittaker v Comcare supra, the Federal Court said of Tables 9.1 to 9.6 of the Comcare Guide, which collect under the heading of "Musculo-skeletal System", the following (86 FCR at 538):
"It is plain that there are major deficiencies in the drafting of s '9 Musculo-skeletal System' of the approved Guide."
And, referring to the "NOTE" at the start of section 9 Musculo-skeletal System said (86 FCR at 539):
"This 'NOTE' is a good indication of the author's contempt for the notion that a person drafting a statutory instrument, especially one which governs people's entitlements, should take some care to convey his intention clearly."
Notwithstanding those remarks, it seems to me that the Applicant's impairment is capable of being assessed under Tables 9.1 and 9.4 of the Guide albeit that such assessment is inadequate to properly compensate the Applicant.
As subs28(4) of the SRC Act points out, the provisions of the Guide are binding upon this Tribunal. Although recourse may be had to the AMA Guide, that Guide can only be resorted to when the "employee's impairment is of a kind that cannot be assessed in accordance with the provisions of the Guide". Here, as stated above, the Applicant's impairment can be assessed according to the Guide albeit such assessment is unfair, unjust and does not properly reflect the impairment and pain and suffering occasioned to the Applicant.
Before leaving this matter, it must be pointed out that most medical practitioners who come before the Administrative Appeals Tribunal have criticisms of the Comcare Guide. This is especially so in orthopaedic and psychiatric cases. In Whittaker v Comcare supra the Federal Court said at p538:
"In Comcare v Kay (1997) 26 AAR 124, Finn J, dealing with litigation that arose because of difficulty in interpreting the 'Introduction' to Table 9.1, with which this Court is particularly concerned, said of it (at 131)
'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.'
Despite much criticism by the Tribunals and Courts that have had to apply it over the years, it appears that Section '9 Musculo-skeletal System', if not the entire Guide, has remained unaltered since 1988.
While it may, for practical reasons, be difficult for an agency to procure amendment by Parliament of a statute which it has to administer, Comcare is empowered by s 28(2) to act quickly, if only it chooses, to make any changes to the Guide that experience in its use identifies are necessary. For reasons of its own, however, Comcare appears to prefer constant litigation to that clarification of the Guide for which there has long been a manifest need. …"
The decision in Whittaker v Comcare supra was published on 7 September 1998. To date there has been no attempt to amend the Comcare Guide including the discredited introduction to section 9 Musculo-skeletal System. No doubt, as the Guide has a restrictive effect upon the entitlements available to injured employees, the Department of Employment, Workplace Relations and Small Business, which administers Comcare, has no incentive or desire to make amendments or improvements to the Guide. Compare the Department of Veterans' Affairs' "Guide to the Assessment of Repatriation Pensions" which is now in its fifth edition.
For the reasons stated above the decision under review will be affirmed.
I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of
Senior Member M D Allen
Signed: Kwai-Ling Wong .....................................................................................
AssociateDate of Hearing Not applicable - the matter was decided on the papers at the request of the parties.
Date of Decision 13 June 2001
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