Farrell and Comcare
[2015] AATA 268
•28 April 2015
[2015] AATA 268
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2013/4053, 2014/1068, 2014/1457
Donna Farrell
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Dr James Popple, Senior Member
Date 28 April 2015 Place Canberra Comcare’s decisions on 2 August 2013, 27 February 2014 and 16 March 2014 are affirmed.
...............................[sgd].........................................
James Popple, Senior Member
CATCHWORDS
COMPENSATION — Commonwealth employees — whether Comcare liable for permanent impairment and non-economic loss — application of tables in approved Guide — preclusions in Table 9.14 — whether table available under clinical judgment — whole person impairment assessed at less than 10% — decision affirmed.
COMPENSATION — Commonwealth employees — whether Comcare liable for cervicobrachial syndrome — whether related to employment — diagnosis of non-specific neck pain — decision affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 5A, 14, 24, 27, 28
CASES
Dawson and Comcare (2013) 138 ALD 430
SECONDARY MATERIALS
Gunnar B. J. Andersson and Linda Cocchiarella (editors), Guides to the Evaluation of Permanent Impairment (AMA Press, fifth edition, 2001)
Comcare, Guide to the Assessment of the Degree of Permanent Impairment (edition 2.1, 2011)
REASONS FOR DECISION
James Popple, Senior Member
28 April 2015
Summary
I affirm Comcare’s decisions to deny the applicant compensation under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). On the proper application of tables in the approved Guide, Comcare is not liable to pay Ms Farrell compensation for permanent impairment and non-economic loss under ss 24 and 27 of the SRC Act. And Comcare is not liable, under s 14 of the SRC Act, to pay Ms Farrell compensation in respect of her neck pain because there is insufficient evidence to find that her neck pain arose out of, or in the course of, her employment.
Background
Ms Donna Farrell worked for the Australian Bureau of Statistics from 1986. From 2006, her duties required her to undertake repetitive key strokes and mouse work. She developed pain in her index and middle finger extending to her right wrist and forearm. She saw her general practitioner on 6 August 2008. He diagnosed her pain as being due to “excessive mouse work while testing a new system”.
Ms Farrell made three separate applications to this Tribunal, which were heard together. The background to each application is explained below.
Application 2013/4053
On 12 September 2008, Comcare accepted liability for Ms Farrell’s claim of tenosynovitis hand and wrist (right), with a date of injury of 6 August 2008. On 29 November 2011, Comcare accepted liability for a claim of lateral epicondylitis (left) and synovitis and tenosynovitis (left), with the same date of injury.
On 18 April 2013, Ms Farrell made a claim under ss 24 and 27 of the SRC Act for compensation for permanent impairment and non-economic loss.
On 28 May 2013, Comcare disallowed her claim. Comcare rejected liability for permanent impairment in relation to two conditions for which it had not accepted liability: carpal tunnel syndrome (bilateral) and lateral epicondylitis (right). It also rejected liability for permanent impairment in relation to the three accepted conditions on the basis that the degree of impairment was less than the requisite 10%.
On 25 June 2013, Ms Farrell requested a reconsideration of that determination. On 2 August 2013, Comcare affirmed its determination.
Application 2014/1068
On 24 June 2013, Ms Farrell requested the inclusion of several conditions on her earlier claim. On 24 September 2013, Comcare accepted liability for the claim of medial epicondylitis (right) and lateral epicondylitis (right). It rejected liability for cervicobrachial syndrome (bilateral) and carpal tunnel syndrome (bilateral).
On 22 January 2014, Ms Farrell requested a reconsideration of that determination. On 27 February 2014, Comcare affirmed its determination. Before this Tribunal, Ms Farrell no longer asserts that she is entitled to compensation for carpal tunnel syndrome.
Application 2014/1457
This application relates to the same claim as in Application 2013/4053: Ms Farrell’s 18 April 2013 claim for permanent impairment and non-economic loss. On 16 January 2014, Comcare assessed Ms Farrell’s level of permanent impairment and non-economic loss for right epicondylitis (a condition which it had accepted on 24 September 2013: see Application 2014/1068). Comcare determined that she was not entitled to compensation for permanent impairment and non-economic loss.
On 29 January 2014, Ms Farrell requested a reconsideration of that determination. On 16 March 2014, Comcare affirmed its determination.
Summary of background
Comcare has accepted liability, under s 14 of the SRC Act, for:
·tenosynovitis hand and wrist (right);
·lateral epicondylitis (bilateral)—commonly known as “tennis elbow”;
·synovitis and tenosynovitis (left); and
·medial epicondylitis (right)—commonly known as “golfer’s elbow”.[1]
[1] On 28 March 2014, Comcare accepted liability for bilateral chronic pain syndrome in the arms. At the hearing, the parties agreed that the question of liability under ss 24 and 27 of the SRC Act for this condition is not before the Tribunal.
On 16 August 2013 (Application 2013/4053), 28 February 2014 (Application 2014/1068) and 21 March 2014 (Application 2014/1457), Ms Farrell applied to the Tribunal, under s 64 of the SRC Act and s 29(1) of the Administrative Appeals Tribunal Act 1975, for review of those parts of Comcare’s decisions which rejected liability for compensation.
Decisions under review
The decisions under review are Comcare’s reconsidered decisions:
·on 2 August 2013, rejecting liability for compensation for permanent impairment and non-economic loss in relation to lateral epicondylitis (right); tenosynovitis hand and wrist (right); lateral epicondylitis (left); and synovitis and tenosynovitis (left);
·on 27 February 2014, rejecting liability for compensation for cervicobrachial syndrome (bilateral); and
·on 16 March 2014, rejecting liability for compensation for permanent impairment and non-economic loss for medial epicondylitis (right) and lateral epicondylitis (right).
Issues
The issues in these reviews are:
·whether Comcare is liable to pay Ms Farrell compensation for permanent impairment and non-economic loss under ss 24 and 27 of the SRC Act (which raises the question of the proper application of tables in the approved Guide); and
·whether Comcare is liable, under s 14 of the SRC Act, to pay Ms Farrell compensation for bilateral cervicobrachial syndrome.
Liability for compensation for permanent impairment and non-economic loss (ss 24 and 27 of the SRC Act)
Section 24 of the SRC Act provides that, 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] Section 27 provides that, where compensation is payable under section 24, Comcare is liable to pay additional compensation for non-economic loss in accordance with s 27. Section 24 also provides that Comcare must determine the degree of an employee’s permanent impairment under the provisions of the approved Guide[3] and express that degree as a percentage.[4] If that degree of impairment is less than 10%, Comcare is not liable to pay compensation under s 24.[5] The approved Guide is a legislative instrument, made by the Minister responsible for the SRC Act, and entitled Guide to the Assessment of the Degree of Permanent Impairment.[6] The approved Guide is binding on Comcare and on this Tribunal.[7] The current version of the approved Guide is edition 2.1. It applies to claims received on and from 1 December 2011, so it applies to Ms Farrell’s claims.
[2] SRC Act, s 24(1).
[3] SRC Act, s 24(5).
[4] SRC Act, s 24(6).
[5] Compensation is not payable under s 24 if Comcare determines that the degree of permanent impairment (other than a hearing loss) is less than 10% (s 24(7)).
[6] SRC Act, s 4 (definition of “approved Guide”) and s 28.
[7] SRC Act, s 28(4).
Chapter 9 of the approved Guide deals with the musculoskeletal system. Part II of chapter 9 deals with “The upper extremities: hands and fingers, wrists, elbows and shoulders”. Tables within Part II include Table 9.8 (hands and fingers) and Table 9.9 (wrists). Comcare used those tables to assess the degree of Ms Farrell’s impairment. Ms Farrell concedes that, if those tables are used, her claims fail as her degree of impairment assessed under those tables is less than 10%.
But Ms Farrell says that Tables 9.8 and 9.9 (and Table 9.10 (elbows)) are irrelevant to her impairment. Those tables, she says, are about loss of range of movement in joints. She says that her claim relates to her loss of the use of her arms for functional purposes; it is not about loss of movement in her wrists or elbows. Ms Farrell says that Table 9.14 (upper extremity function) of the approved Guide is relevant to assessing the degree of her impairment arising from tenosynovitis and epicondylitis.
The introductory notes to Part II of the approved Guide include:
If the medical assessor considers that the impairment is not adequately assessed using one of Tables 9.9, 9.10, and 9.11,[8] and the condition involves radiographically demonstrated joint instability, radiographically demonstrated arthritis or where the employee has had an arthroplasty, the medical assessor may consider the effect of the injury on upper extremity function instead and determine the [whole person impairment (WPI)] rating using Table 9.14. Table 9.14 cannot be used unless the condition involves radiographically demonstrated joint instability or arthritis or the employee has had an arthroplasty.[9]
The notes preceding Table 9.14 include:
Before using Table 9.14 the medical assessor should read the instructions (see Part II—Introduction …) preceding the specific joint impairment tables (Tables 9.8–9.11). Table 9.14 is used strictly in accordance with those instructions. In particular, Table 9.14 cannot be used where an assessment can be made under one or more [of] Table 9.9, 9.10 or 9.11 and there is no radiologically demonstrated joint instability or arthritis or arthroplasty.[10]
There is no evidence that Ms Farrell has radiographically demonstrated joint instability or arthritis, or has had an arthroplasty. This would seem to preclude the use of Table 9.14 in assessing the degree of her impairment. But Ms Farrell contends that Table 9.14 can be used: directly or indirectly.
[8] Neither party says that Table 9.11 (shoulders) is relevant to this review.
[9] Approved Guide at 110.
[10] Approved Guide at 145.
Ms Farrell referred to the decision in Dawson and Comcare.[11] In that case, the Tribunal decided that Table 9.14 could be used, in similar circumstances to hers, on the basis that the impairment could not be adequately assessed under another table. The approved Guide, the Tribunal said, “in terms does not preclude the use of Table 9.14” in such circumstances.[12] But the version of the approved Guide that applied in Dawson was edition 2. Edition 2.1 applies in this review. One difference between the two versions is that the latter version includes in its introductory notes to Part II the sentence quoted above: “Table 9.14 cannot be used unless the condition involves radiographically demonstrated joint instability or arthritis or the employee has had an arthroplasty”.[13] The approved Guide does now, in terms, preclude the use of Table 9.14 except in those specified circumstances.
[11] (2013) 138 ALD 430.
[12] (2013) 138 ALD 430 at [17]–[22] per Tamberlin DP and Blakley M.
[13] Approved Guide at 110 (see [19] above). See also the schedule of amendments in the approved Guide at 285.
The notes preceding Table 9.14 (quoted above) are unclear if read on their own: they do not expressly cover the situation where the impairment cannot be adequately assessed under another specified table and there is no radiologically demonstrated joint instability or arthritis or arthroplasty. But the introductory notes to Part II (to which the notes preceding Table 9.14 refer) are clear: Table 9.14 cannot be used except in specified circumstances, even if the impairment cannot be adequately assessed under another table.
Ms Farrell also contends that Table 9.14 can be used indirectly in assessing the degree of her impairment. The introductory notes to Part II of the approved Guide include:
Where a condition cannot be assessed under a specific table in the upper extremities group, an assessment may be made under the provisions of the American Medical Association’s Guides to the Evaluation of Permanent Impairment 5th edition 2001.[14]
Ms Farrell says that none of the tables in that guide (the AMA 5) is relevant to her impairment. The AMA 5 says:
In situations where impairment ratings are not provided, the [AMA 5] suggests that physicians use clinical judgment, comparing measurable impairment resulting from the unlisted condition to measurable impairment resulting from similar conditions with similar impairment of function in performing activities of daily living.[15]
Ms Farrell says that the best guide to the exercise of clinical judgment in circumstances like hers is Table 9.14 of the approved Guide. In this indirect way, she says, Table 9.14 can be used in assessing the degree of her impairment.
[14] Approved Guide at 110.
[15] AMA 5 at 11.
But Table 9.14 can only be used in this indirect way if Ms Farrell’s impairment “cannot be assessed under a specific table in the upper extremities group” of the approved Guide. Comcare says that her impairment can be assessed under the following tables of the approved Guide in the upper extremities group:
·Table 9.8.1a: abnormal motion/ankylosis of the thumb—IP [interphalangeal] and MP [metacarpo-phalangeal] joints;
·Table 9.8.1b: radial abduction/adduction/opposition of the thumb—abnormal motion/ankyloses;
·Table 9.8.1d: abnormal motion/ankylosis of the fingers—ring and little fingers;
·Table 9.9.1a: wrist flexion/extension; and
·Table 9.9.1b: radial and ulnar deviation of wrist joint.
Ms Farrell’s degree of impairment was assessed, using these tables, by Associate Professor Les Barnsley, a consultant rheumatologist. He assessed the degree of her impairment as 3% under Tables 9.9.1a and 9.9.1b, and as 0% under the other tables. Ms Farrell’s degree of impairment was also assessed by Dr Leon Le Leu, an occupational physician. Dr Le Leu did not think that any of the tables listed above were relevant to Ms Farrell, and assessed her level of impairment using Table 9.14.
Section 28(4) of the SRC Act provides that it is for Comcare or this Tribunal—not medical experts—to decide “the degree of permanent impairment of an employee resulting from an injury, or the degree of non-economic loss suffered by an employee … under the relevant provisions of the approved Guide”. It follows that it is a question for me—and not for medical experts—whether Ms Farrell’s impairment can be assessed under one or more of the tables listed above.
I find that Ms Farrell’s impairment can be assessed under (at least) Tables 9.9.1a and 9.9.1b. I make that finding, noting that Associate Professor Barnsley was able to assess Ms Farrell’s impairment under those tables.
I also note that, although Dr Le Leu did not assess Ms Farrell’s impairment under those tables, he did give his view, at the hearing, that Tables 9.8, 9.9 and 9.10 “can be used for assessment of individual joints but they don’t give a clear idea of the—a clear reflection of the total impairment”. I agree that Ms Farrell’s impairment would be more appropriately assessed under Table 9.14, because that table better reflects the totality of her impairment. But Table 9.14 cannot be used. The notes preceding Table 9.14 expressly preclude the use of that table in this case, because there is no evidence that Ms Farrell has radiographically demonstrated joint instability or arthritis, or has had an arthroplasty.
Table 9.14 cannot be used directly, and it cannot be used in the indirect way that Ms Farrell suggests. It can only be used in an indirect way if Ms Farrell’s impairment “cannot be assessed under a specific table in the upper extremities group” of the approved Guide. I have found that her impairment can be assessed under at least two of those tables.
As noted above, Ms Farrell concedes that, if those tables are used, her WPI rating under those tables is less than 10%. I find that her WPI rating under Tables 9.9.1a and 9.9.1b is 3%, based on the assessment conducted by Associate Professor Barnsley. Because her degree of impairment is less than 10%, Comcare is not liable to pay compensation under s 24 or s 27 of the SRC Act.
Liability for compensation for bilateral cervicobrachial syndrome (s 14 of the SRC Act)
The remaining issue in this review is whether Comcare is liable to pay Ms Farrell compensation for bilateral cervicobrachial syndrome. There was evidence on this question from Dr Leon Le Leu, an occupational physician (in written reports and at the hearing), and from Associate Professor Barnsley (in written reports).
Dr Le Leu’s view was that cervicobrachial syndrome was one cause of Ms Farrell’s limitations in using her arms. He concluded that Ms Farrell suffers from this syndrome because of her work, on the basis that the syndrome arises from “prolonged fixed postures adopted by people operating computer keyboards and mice”. Dr Le Leu characterised cervicobrachial syndrome as a “chronic pain condition”, and conceded that it has no known explanation. It is, he said, “just a descriptive term and so it gives no indication as to the cause of the condition”.
Associate Professor Barnsley did not consider that a diagnosis of cervicobrachial syndrome was meaningful. In his view, Ms Farrell suffers from “some non-specific neck pain”. He did not see a clear and distinct relationship between that pain and Ms Farrell’s work. He also said that “[n]eck pain is extremely common in the general population and there would not appear to have been any particular impact or activity that would have the potential to cause significant neck problems” for Ms Farrell.
I prefer the evidence of Associate Professor Barnsley to that of Dr Le Leu. I think that Associate Professor Barnsley (a rheumatologist) has more specialised relevant expertise than Dr Le Leu (an occupational physician).
I do not find that Ms Farrell suffers from cervicobrachial syndrome. I find that she suffers from non-specific neck pain. I do not think there is sufficient evidence to find that her neck pain arose out of, or in the course of, her employment. Accordingly, her neck pain is not an injury for the purposes of s 5A of the SRC Act. This means that Comcare is not liable, under s 14, to pay Ms Farrell compensation in respect of her neck pain.
Conclusion
Ms Farrell’s impairment can be assessed under Tables 9.9.1a and 9.9.1b of the approved Guide. Her WPI rating under those tables is less than 10%, so Comcare is not liable to pay her compensation under s 24 or s 27 of the SRC Act.
Ms Farrell’s neck pain is not an injury for the purposes of s 5A of the SRC Act, so Comcare is not liable to pay her compensation under s 14 in respect of that pain.
I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple ................................[sgd]........................................
Associate
Dated 28 April 2015
Dates of hearing 23 and 24 March 2015 Counsel for the Applicant Mr Allan Anforth Solicitors for the Applicant Blumers Lawyers Counsel for the Respondent Mr Peter Woulfe Solicitors for the Respondent Australian Government Solicitor
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