GARY BURKE and Comcare - [2012] AATA 706

Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL        )
  )         No: 2011/2066
General Administrative Division           )
Re: Garry Burke
Applicant

And: Comcare
Respondent
DIRECTION
TRIBUNAL:             Professor RM Creyke, Senior Member
DATE:                      29 October 2012
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 footnote 34 at page 27 in the reasons, to delete the words: “C Long, PW Conrad, EA Hall, & SL Furler (1970). ‘Intrinsic-extrinsic muscle control of the hand in power grip and precision handling’ (1970). The Journal of Bone and Joint Surgery, 52A, 853-867” and insert the words: “A Clerke, ‘Factors Influencing Grip Strength Testing in Teenagers’ (Doctor of Philosophy thesis, Faculty of Health Science; University of Sydney, 2006)”;

under the heading ‘Secondary Materials’ at page 2 in the reasons, insert the words: “A Clerke, ‘Factors Influencing Grip Strength Testing in Teenagers’ (Doctor of Philosophy thesis, Faculty of Health Science; University of Sydney, 2006); see also C Long, PW Conrad, EA Hall, & SL Furler (1970). ‘Intrinsic-extrinsic muscle control of the hand in power grip and precision handling’ (1970). The Journal of Bone and Joint Surgery, 52A, 853-867”.
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Professor RM Creyke, Senior Member
[2012] AATA 706

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2011/2066

Re

GARY BURKE

APPLICANT

And

Comcare

RESPONDENT

Decision

Tribunal
PROFESSOR RM CREYKE, SENIOR MEMBER
MS EA SHANAHAN, MEMBER

Date 12 October 2012

Place Canberra
The reviewable decision is set aside and remitted under section 43 of the Administrative Appeals Tribunal Act1975 (Cth), for calculation of the amount of compensation payable to Mr Burke based on a 17 per cent level of whole person impairment under the Comcare Guide.
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PROFESSOR RM CREYKE, SENIOR MEMBER
Catchwords
COMPENSATION –Whole Person Impairment – Permanent Impairment –Comcare Guide to the Assessment of the Degree of Permanent Impairment (2nd ed) –American Medical Association’s Guides to the Evaluation of Permanent Impairment – whether – lateral epicondylitis – wrist sprain – accepted injuries – multiple impairments – meaning of radiograpically tested - table 9.14 – range of movement tables – functional impairment – personal care – loss of grip strength
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 24, 28
Cases
Broadhurst v Comcare (unreported, SM Creyke, 11 February 2010)

Comcare v Broadhurst (2011) 192 FCR 497
Comcare v Riley (unreported decision by consent, 8 March 2012)
Haberfield v Department of Veterans' Affairs [2002] FCA 1579
Re Drage and Comcare (1996)42 ALD 589
Re Knight and Military Rehabilitation and Compensation Commission (2010) 120 ALD 298
Re Robinson and Comcare [2007] AATA 2005

Whittaker v Comcare (1998) 86 FCR 532

Secondary Materials
A Clerke, ‘Factors Influencing Grip Strength Testing in Teenagers’ (Doctor of Philosophy thesis, Faculty of Health Science; University of Sydney, 2006); see also C Long, PW Conrad, EA Hall, & SL Furler (1970). ‘Intrinsic-extrinsic muscle control of the hand in power grip and precision handling’ (1970). The Journal of Bone and Joint Surgery, 52A, 853-867

American…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading GARY BURKE and Comcare

Details

AGLC: GARY BURKE and Comcare [2012] AATA 706
Case: [2012] AATA 706
Decision Date: 12 October 2012

CaseChat Overview and Summary

The matter between Gary Burke and Comcare was heard in the Federal Circuit Court of Australia. Mr Burke, who worked at Parliament House in Canberra for 13 years, was diagnosed with right lateral epicondylitis and left lateral wrist strain, conditions caused by overuse of his right forearm and left wrist. These injuries were accepted as compensable. The court had to determine the degree of whole person impairment arising from these injuries.

The central issue before the court was how to assess the degree of permanent impairment resulting from Mr Burke's injuries to his right elbow and left wrist. This involved interpreting the Comcare Guide to the Assessment of the Degree of Permanent Impairment and the American Medical Association’s Guides to the Evaluation of Permanent Impairment. The court had to decide whether the accepted injuries warranted the degree of impairment as assessed by Dr Le Leu, and whether the assessments under the range of movement tables and grip strength loss index were appropriate.

Dr Le Leu assessed Mr Burke’s impairment using the relevant tables and criteria from the Comcare Guide and the AMA Guides. For the right elbow, Dr Le Leu assessed 2 per cent impairment under Table 9.10, 10 per cent under Table 9.14, and 30 per cent upper extremity impairment due to grip strength loss, translating to 18 per cent whole person impairment. For the left wrist, he assessed 12 per cent under Table 9.9, 8 per cent under Table 9.14, and 30 per cent upper extremity impairment due to grip strength loss, translating to 18 per cent whole person impairment. The court considered these assessments against the evidence of Mr Burke’s functional limitations and found them to be appropriate. The court concluded that the degree of impairment assessed by Dr Le Leu was commensurate with Mr Burke's condition.

The court ordered that the degree of whole person impairment for Mr Burke’s accepted injuries was as assessed by Dr Le Leu. This assessment included the specific impairments and functional limitations arising from Mr Burke's right lateral epicondylitis and left lateral wrist strain. The court found that the assessments were consistent with the evidence presented and the applicable guidelines.

Orders

Orders of the court

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Background

Background to the litigation

The matter was heard in Canberra on 9-10 August 2012.BACKGROUND Mr Burke worked at Parliament House, Canberra in the Print Room for 13 years. The work had involved opening reams of paper, fanning the paper in the ream, loading paper into the printing machines, shuffling and stacking paper, collating, stapling and strapping documents and loading them into boxes, guillotining and binding. Some years prior to 2005, during a busy period, his right elbow and left wrist became painful. The nurse in Parliament House strapped his left wrist but he continued working. He did not consult a doctor. When the busy period passed, his conditions remitted. In May 2005 the work again became busy and the pain in his right elbow and left wrist recurred and worsened daily. On the advice of his manager, Mr Burke consulted Dr Ross Hendry, his general practitioner, who recommended Mr Burke cease working in the print room. In a handwritten note dated 20 June 2005 and in a medical certificate of the same date, Dr Hendry had diagnosed right lateral epicondylitis, and left lateral wrist strain. On the information provided, these conditions were caused, he said, ‘by overuse of [Mr Burke’s] left wrist and right forearm’. He had X-rays performed on 11 August 2005 which revealed piso-triquetral (a joint in the wrist) pain and tenderness, but no specific abnormality. On the advice of Dr Hendry, Mr Burke was provided with light duties, namely, web publishing, for the next couple of years. However, on occasions he was still involved in the print room, including doing manual work. At the end of this period, the printing manager required him to return to full-time duties in the print room. He attempted to do so but found he could no longer do all the duties ‘because everything hurt’. Dr Hendry was concerned at the implications for Mr Burke of his resumption of full-time print room duties, so Mr Burke took his advice and accepted a redundancy. Mr Burke is currently employed part-time as a meter reader in Canberra and Queanbeyan. The work involves opening meter-boxes, reading the meters, entering the results into a machine - he is now a one handed typist - and sending off the results to the gas or electricity provider. Performing these functions hurts but he manages them. If he works on a keyboard at home, he finds it is painful. The pain he experiences is, in his view, the same as the pain he had while working in the print room. Currently it is the pain in his wrist that is the most problematic. He considers this pain is getting worse. For the purposes of range of motion testing, Mr Burke acknowledged that he can fully extend his right elbow, but it was painful. He can grip with his right hand but feels a little pain in his right elbow, and if he extends the right elbow and grips, or if he tries to grip and squeeze, it hurts. He said he often cannot lift and has to put the object down. However, pain prevents him fully extending his left wrist. The brace on his left wrist prevents him bending the wrist and hence avoids pain. He said the brace does prevent him from squeezing his fist, so a grip strength tester would cause pain in his wrist.

Evidence

Evidence Before The Court

He said he can do most things, but sometimes the activity takes time. He has been wearing a brace on his left arm since 2005 and he agreed that this somewhat restricts his movements. He sleeps reasonably well but only after a glass or two of wine. He also takes over the over-the-counter pain killers (Panofen Plus or Nurofen) every night to help reduce the pain so he can sleep. MEDICAL EVIDENCEDr Le Leu Dr Leon Le Leu, consultant occupational physician, provided a report on 2 October 2011. He found that Mr Burke’s accepted right lateral epicondylitis was chronic and permanent. Under the Guide to the Assessment of the Degree of Permanent Impairment (2nd edn, 2005) (Guide), he assessed whole person impairment for his right elbow as:·2 per cent under Table 9.10 - Elbows;·Nil assessment under Table 9.13 – Neurological Impairments Affecting the Upper Extremities; and·10 per cent for his dominant extremity under Table 9.14 – Upper Extremity Function. Dr Le Leu’s specific comments relating to the criteria in Table 9.14 were:·Moderate loss of digital dexterity·Minor limitations in use of extremity for personal care·Finds it difficult to do up shoelaces·Cannot lift more than 10 kg·Rests after writing half an A4 page. He found that Mr Burke had ‘very significant grip strength impairment from the right elbow injury along with the right wrist’. He can lift a shopping bag provided it is not too heavy; he does the cooking and the dishwashing, but tends to drop glasses; he cannot hang out the clothes or iron; he has difficulty opening jars, but has a device to help; he uses a keyboard right-handed; and can operate taps with his right hand. Under AMA5, Table 16.34 – Upper Extremity Joint Impairment Due to Loss of Grip or Pinch Strength he assessed Mr Burke as having grip strength in his right hand of 12.25kg, as compared with an average male of his age of 45.9kg. That produces a grip strength loss index of 73 per cent, giving 30 per cent upper extremity impairment, which in turn translates into an 18 per cent whole person impairment rating. Using the range of movement tables in AMA5, Chapter 16, Dr Le Leu found upper extremity impairment converted to 1 per cent whole person impairment. Dr Le Leu diagnosed osteoarthritis of the left wrist. The assessment was:·0 per cent under Tables 9.8 – Hands and Fingers.·12 per cent under Table 9.9 – Wrists.·Nil assessment under Table 9.13 – Neurological Impairments Affecting the Upper Extremities; and,·8 per cent for the non-dominant extremity under Table 9.14 – Upper Extremity Function. Dr Le Leu’s specific comments in relation to the criteria in Table 9.14 of the Guide were: ·Cannot use left hand for personal care.·Major loss of digital dexterity.·Can cut up food but it hurts.·Can manage zips and buttons with the right hand, holds the shirt in position with the left hand. Dr Le Leu found that Mr Burke had ‘drastic grip strength impairment’ for the left wrist under AMA5. He had a 100 per cent strength loss index which gives him 30 per cent upper extremity impairment, and in turn translates to 18 per cent whole person impairment under AMA5. Using the range of movement tables in AMA5, Dr Le Leu concluded that the 14 per cent upper extremity impairment for the left wrist converts to 8 per cent whole person impairment.Associate Professor Barnsley

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/2066
Re	GARY BURKE
APPLICANT
And	Comcare
RESPONDENT

Tribunal	PROFESSOR RM CREYKE, SENIOR MEMBER MS EA SHANAHAN, MEMBER
Date	12 October 2012
Place	Canberra