GARY BURKE and Comcare
[2012] AATA 706
•12 October 2012
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2011/2066
General Administrative Division )Re: Garry Burke
Applicant
And: Comcare
RespondentDIRECTION
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”.
.................................[sgd]..................................
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, MEMBERDate 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.
............................[sgd]............................................
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 2005Whittaker 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 Medical Association’s Guides to the Evaluation of Permanent Impairment (5th ed)
Comcare Guide to the Assessment of the Degree of Permanent Impairment (2nd ed, 2005)
Macquarie Concise Dictionary (5th ed, 2009)
Macquarie Australian Dictionary (5th edn, 2009)
The Random House Dictionary of the English Language (The Unabridged edition)
Dorland’s Illustrated Medical Dictionary (30th ed, Saunders)REASONS FOR DECISION
PROFESSOR RM CREYKE, SENIOR MEMBER
MS A SHANAHAN, MEMBER10 October 2012
Mr Garry Burke was employed as a printer operator, Parliamentary Service Level 2, by the Department of the House of Representatives (agency).
Mr Burke suffered an injury to his left wrist and right elbow. In a decision dated 19 August 2005, Comcare accepted liability for right lateral epicondylitis, left wrist sprain, and bilateral carpal tunnel syndrome with a date of injury of 20 June 2005. Only the right elbow epicondylitis and the left wrist sprain are the subject of this application for review.
On 4 March 2010, Mr Burke made a claim for permanent impairment for his accepted injuries. That claim was denied by Comcare on 10 January 2011, a decision upheld on review on 1 April 2011.
Mr Burke sought further review by the Tribunal on 30 May 2011.
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.
Mr Burke’s evidence is that he has a constant ache in both arms, and it is ‘real tender… on the bone’, which he indicated to mean his lower inside right elbow. This ache intensifies when he is required, for instance, to straighten his right arm or his left wrist. Repetitive movement causes pain. He can drive his automatic car, one-handed, as the lever only requires moving backwards and forwards, but driving does aggravate his pain. He can parallel park the car, but he cannot start or steer a boat, or load and unload it onto a trailer. As a consequence he has had to give fishing away, along with his boat. He can no longer ride his motorbike because he cannot grip the handlebars with sufficient strength. He has difficulty pushing up the lid of heavy meter boxes.
In terms of everyday personal care and household activities, he can comb and wash his hair, clean his teeth, shave himself (infrequently), dress himself, including putting on underpants, socks and boots, move furniture, and, with some difficulty, change a light bulb and use a screwdriver. He regularly does the cooking. His wife or friends do the mowing. He cannot push the mower or empty the catcher. If he has to cut up food he uses a steak knife and he cannot spear meat with a fork with his left hand. At times his left hand swells and his fingers feel like sausages and sometimes he gets pins and needles in his fingers. He cannot use a spoon with his left hand to eat. He can no longer use chopsticks. Putting his fingers together and squeezing to pick up food would cause pain and is awkward.
If he has to tie shoelaces, he uses two hands to tie the bow using the left hand only to hang onto the laces. He needs to retie his laces several times during the day because he cannot tie them sufficiently tightly to prevent the laces working undone. He mostly wears boots. He can do up buttons on a shirt, but it is slow and difficult for his left hand. Most of the time he puts on shirts over his head like a T-shirt. He can remove and clean an earring he wears in his left ear.
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 EVIDENCE
Dr 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
Associate Professor Les Barnsley, consultant rheumatologist, produced three reports: the first dated 15 December 2010; the second dated 3 November 2011; and the third dated 22 February 2012. It is his final report, being the most up-to-date, to which most attention has been given. However, the Tribunal has also referred to the earlier two reports.
In his first report Associate Professor Barnsley found that Mr Burke had right lateral epicondylitis due to tendonitis of the common extensor tendon of the forearm extensors and that the injury was related to his work. The condition he said produced ‘intermittent symptoms with minimal functional impairment’. His left wrist had a ‘tear of the triangular fibrocartilage’ due to a combination of physical demands on the wrist as well as pre-existing ‘ulnar positive variance’.
In this report, Associate Professor Barnsley agreed Mr Burke had chronic lateral epicondylitis contributed to by his employment and that his impairment was likely to continue indefinitely. He recorded in relation to Table 9.14 that Mr Burke had said that ‘his wrist was sometimes painful but he could go whole days without pain and may get swelling with lifting or repetitive use of the left wrist’. He also noted that Mr Burke had not noticed any effect on the dexterity in the left hand and in particular he had no problems typing or doing up his shoelaces. Nor did he say he had problems with self-care relating to the wrist, or any significant effect from the left wrist on his social life, digital dexterity, or other activities. He noted a history of the condition being aggravated by driving.
In his second report he noted that in his opinion Mr Burke could not lift more than 10kg. He diagnosed Mr Burke’s left wrist as possibly due to osteoarthritis, but said ‘the main problem he had would appear to have been the ulnar abutment syndrome’. In relation to Mr Burke’s elbow, Associate Professor Barnsley found the range of movement Tables 9.10.1a and 9.10.1b did not adequately reflect the pain Mr Burke was getting, so he applied the functional table, Table 9.14. He found Mr Burke met the ‘objectively identified orthopaedic and neurological condition in the right elbow’, namely, lateral epicondylitis. However, as he had normal digital dexterity and no limitations in the use of the extremity for personal care, he only attracted 0 per cent whole person impairment.
In his third report, Associate Professor Barnsley found, under the range of motion tables in the Guide that Mr Burke’s right elbow showed no loss of pronation, supination, flexion or extension and hence was assessed at 0 per cent. Specifically he found 7 per cent whole person impairment for range of motion for Mr Burke’s left wrist.
In relation to Table 9.14 – Upper Extremity Function, he found Mr Burke had ‘normal digital dexterity in the right side, with no limitations in the use of the extremity for personal care’. In his view, Mr Burke did not meet either major criteria in Table 9.14, so his assessment was 0 per cent, for both dominant right upper limb and the non-dominant left upper limb.
However, he noted that the history from Mr Burke indicated 'a progressive deterioration in his left wrist' since the time of his second report and there was objective evidence of this in 'some swelling' and 'loss of muscle mass in the left forearm and a significantly decreased range of movement in the left side'. For the left wrist, Associate Professor Barnsley said he suspected that Mr Burke had developed a worsening osteoarthritis of the wrist.
At the same time, the history from Mr Burke was that despite increased pain in the ulnar aspect of his left wrist, he had 'not noticed any loss of dexterity of the fingers'. He also recorded 'he is able to do up his shoelaces or buttons on his shirt but it now hurts to do so'; 'he avoids typing with the left hand and indeed cannot type when he is wearing a splint'; 'he is limited to lifting between 1-2kg'; 'he has no problems with the use of the hand for self-care'; and that he could not steer his boat 'with his left hand because of the pain'.
AMA5
As instructed, he made an assessment using AMA5, Table 16.34 – Upper Extremity Joint Impairment due to Loss of Grip or Pinch Strength, and concluded for the right side that Mr Burke had a 50 per cent strength loss index, which translates into 20 per cent upper extremity impairment and corresponds to whole person impairment of 12 per cent. He concluded that Mr Burke was really unable to perform repeated grip measure, particularly on the left side. So, under Table 16.34 for loss of grip and pinch strength on the left side he found 60 to 100 per cent upper extremity loss index which equates to 30 per cent upper extremity impairment. In turn that equated to a whole person impairment of 18 per cent.
Using AMA5 Table 16.31 for range of movement, for the left wrist, he found 6 per cent whole person impairment. He did not assess the range of movement of the right side.
Dr Roberts
Dr Chris Roberts, orthopaedic surgeon, reported to Dr Hendry on 11 May 2010. He diagnosed right tennis elbow and golfers’ elbow, with significant pain; problems with Mr Burke's left wrist for some five years, located over the ulnar side of the wrist; pain in the left wrist when driving or during any activity using the left wrist; and mild carpal tunnel syndrome. On examination, he said Mr Burke’s left wrist was ‘quite irritable’ with reduced movement and that it was ‘tender on pisotriquetral compression’. X-rays had indicated ‘some ulna+ and some pisotriquetral arthritis’. He recommended an MRI.
MRI
The MRI by Dr John Faulder, radiologist, dated 27 May 2010, found:
There is no advanced wrist or intercarpal joint degenerative change, no pisotriquetral problems. There is a mild ulna positive variance with attenuation and increased signal within the TFCC. There is bony irregularity and bone oedema within the volar aspect of the lunate, however, this is not within the subchondral portion of the bone and is of doubtful significance. There is a small loculated ganglion measuring 6 v 4mm and apparently arising from the scapholunate joint.
Otherwise the results were largely ‘unremarkable’. The mild positive ulnar variance indicates that the head of the ulnar bone is slightly longer than the matching portion of the radius. Dr Roberts had suggested that surgery might be useful, but Mr Burke has not followed this suggestion because of the doubts about the efficacy of the surgery.
Issues
The issues are:
·Are the impairments to Mr Burke’s left wrist and right elbow permanent in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act)?
·What degree of permanent impairment (if any) does Mr Burke suffer as a result of his lateral epicondylitis (right) and his wrist sprain (left)?
·What compensation under Part II, Division 4 of the Act (if any) is Mr Burke entitled to in respect of each of his accepted injuries and resulting impairments?
·Should the reviewable decision be varied or set aside in Mr Burke’s favour?
Legislation
The relevant provisions in the Act are found in sections 4(1), the definitions section; in section 24, relating to the assessment of compensation for permanent impairments; and in section 28, authorising assessment of degree of impairment under the Comcare Guide to the Assessment of the Degree of Permanent Impairment (2nd ed, 2005) (Guide) and, in some circumstances, the American Medical Association’s Guides to the Evaluation of Permanent Impairment (5th ed) (AMA5/Guides), for the assessment of degree of permanent impairment.
The Act provides for lump sum compensation for an employee who is accepted to have an injury which leads to permanent impairment[1]. Section 24(5) of the Act requires that the ‘degree of permanent impairment of the employee resulting from an injury’ be assessed using ‘the provisions of the approved Guide’. In this instance, the relevant provisions of the Guide are the range of movement tables in Chapter 9 or, as an alternative, the functional table, Table 9.14 – Upper Extremity Function.
[1] Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) s 24.
The assessment is designed to assess ‘whole person impairment’, which is defined in the Glossary to the Guide as:
…the medical effects of an injury or disease. WPI is based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment. WPI is a medical quantification of the nature and extent of the effect of an injury or disease on a person’s functional capacity including Activities of Daily Living. This Guide presents descriptions of impairments in chapters and tables according to body system. The extent of each impairment is expressed as a percentage value of the functional capacity of a normal healthy person[2].
[2] Guide, 16.
The ‘Activities of Daily Living’ are defined in the Glossary as:
… those activities that an employee needs to perform to function in a non-specific environment (that is, to live). Performance of Activities of Daily Living is measured by reference to primary biological and psychosocial function.[3]
[3] Guide, 15.
The Guide states in the introduction to Chapter 9, Part II that:
If the medical assessor feels that the impairment is not adequately assessed using one of Tables 9.9, 9.10 and 9.11, 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 function instead and determine the WPI using Table 9.14.[4]
[4] Guide, 86
Principle 12 in the Principles of Assessment in Part 1 of the Guide states further 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.
However, in addition to the qualification referred to earlier in relation to the introduction to Chapter 9, the introduction to Table 9.14 notes that 'Table 9.14 should be used only to assess impairment from objectively identified orthopaedic or neurological conditions arising in, and affecting, the upper extremity.’[6] It is common ground that although the current edition of the AMA Guides is AMA6, the Australian Comcare Guide is based on AMA5, and AMA5 is therefore the appropriate version of the AMA Guides.[7]
[6] Guide, 108.
[7] Broadhurst v Comcare (unreported, SM Creyke, 11 February 2010) ; Comcare v Broadhurst (2011) 192 FCR 497. See now Interim Policy Guidance 2011/01; and Guide (edn 2.1, 2011); Comcare v Riley(decision by consent, 8 March 2012, at [15.3]) .
‘Impairment’
‘Impairment’ is defined in the Act to mean: ‘… the loss, the loss of the use, or the damage or malfunction, of any part of the body or of the bodily system or function or part of such system or function’.[8] The Guide states that ‘Division 1 assembles into groups, according to body system, detailed descriptions of impairments’. One of the body systems is the musculoskeletal system in Chapter 9. Impairments to that system are set out in the tables in Chapter 9.
[8] Act s 4(1).
In Re Knight and Military Rehabilitation and Compensation Commission[9] the Tribunal noted of the definition of ‘impairment’:
What is immediately evident is the width of this definition. … there are at least four limbs, not two, and they are specifically referred to in the definition: “loss”; “loss of the use of”; “damage;” and “malfunction”. It is important to consider the effect of these separate meanings when carrying out the assessment task.
Additionally, s 4 of the Act serves to remind us that each of the four limbs must be considered for their consequences—separately or together—upon:
othe body;
oany bodily system; or
oany bodily function.
Clearly the intention in the Act is to provide a wide and flexible definition.[10]
[9] Re Knight and Military Rehabilitation and Compensation Commission (2010) 120 ALD 298. at [38]-[43]
[10] Id at [38]-[42].
The Tribunal in Re Knight also noted that certain decisions of the Tribunal had concluded: ‘that the terms “loss”, “loss of the use of”, “damage”, and “malfunction” should be interpreted according to their ordinary meaning’[11].
[11] Id at [43]
An impairment is permanent if it is ‘likely to continue indefinitely’.[12] It was accepted by both Dr Le Leu and Associate Professor Barnsley that Mr Burke’s conditions were permanent. Although it was Associate Professor Barnsley’s view that a fusion operation on Mr Burke’s left wrist might improve the condition, Mr Burke had rejected that possibility given that the benefits were not sufficiently clear[13]. In those circumstances, the Tribunal finds that his conditions were permanent.
‘Radiographically demonstrated’ (Guide Part II, Introduction)
[12] Act s 4(1).
[13] Re Drage and Comcare (1996) 42 ALD 589
A preliminary issue was the meaning of ‘radiographically demonstrated’. [14] Chapter 9 of the Guide permits reference to table 9.14 when the range of movement tables are inadequate, and the condition involves ‘radiographically demonstrated joint instability’. It was pointed out by Member Shanahan at the hearing that radiographic testing occurs only by means of electro-magnetic radiation imaging, as commonly encountered in X-rays, CT (Computer Tomography), or RT (Radiography Testing). In other words, it excludes testing using other scientific methodology such as magnetic resonance imaging (MRI) which relies on the impact of radio waves on magnetic fields rather than radiation imaging.
[14] Guide, 86.
Since, by 2005 when the Guide was published, MRI was a common diagnostic tool, the Tribunal infers that it was the intention of the Guide to include all appropriate imaging testing methodology and not to restrict the meaning of ‘radiographic’ to exclude MRIs. Accordingly, despite the use of the more restrictive expression ‘radiographically demonstrated’, the Tribunal finds that the intention was to include all appropriate forms of imaging testing, including MRIs.
That finding is supported by reference to AMA5 which, in its introductory chapter, refers in the section ‘Practical Application of the Guides’, under 2.6 ‘Preparing Reports,’ [15] to ‘radiographic and other imaging studies’ (emphasis added). That broader expression is capable of covering MRI technology. Since the Guide was based on AMA5, the Tribunal has accepted that the intention was that the Guide also refers to ‘radiographic and other imaging studies’ when it specifies there is a need for evidence from such sources.
What degree of permanent impairment (if any) does Mr Burke suffer as a result of his lateral epicondylitis (right) and his wrist sprain (left)?
[15] AMA5, 21.
The principal issue in this matter is the degree of impairment arising out of each of Mr Burke’s accepted injuries and whether they reach the minimum 10 per cent threshold.[16] The Tribunal notes that Mr Burke is right hand dominant.
[16] Act s 24(7)(b).
There is a degree of agreement between the principal medical experts. Associate Professor Barnsley and Dr Le Leu accepted that both Mr Burke’s conditions were caused or contributed to by Mr Burke’s former employment and that the conditions were permanent. Equally, they agreed in relation to his right elbow condition that Mr Burke has chronic lateral epicondylitis contributed to by his employment.
Dr Le Leu diagnosed osteoarthritis of Mr Burke's left wrist; Associate Professor Barnsley said the condition 'could be osteoarthritis' although he thought the major problems stemmed from his congenital ulnar abutment syndrome, that is, that the head of the ulnar bone was slightly longer than the matching portion of the radius, giving rise to a degenerative injury associated with positive ulnar variance. However, in his third report he said his suspicion was that Mr Burke ‘has developed a worsening osteoarthritis of the wrist’. That suggests he now accepted the diagnosis.
X-rays had identified 'some ulnar and some pisotriquetral arthritis' and although the MRI only noted 'no advanced wrist or intercarpal joint degenerative change' and 'no pisotriquetral problems', it did confirm 'bony irregularity and bone oedema within the lunate'. These findings did not rule out the results of the X-ray of 'some. ... joint degenerative change', possibly arthritic in nature.
The Tribunal finds, on this evidence, that Mr Burke had epicondylitis of his right elbow, and some joint degenerative change which was likely to be osteoarthritis in conjunction with an ulnar abutment syndrome of his left wrist. This evidence meets the 'objectively identified orthopaedic and neurological condition' required by the criteria in the Introduction to Table 9.14 for the right elbow. For the left wrist, the Tribunal noted that the X-ray and the MRI were undertaken in May 2010, and Mr Burke's condition, according to Associate Professor Barnsley in his February 2012 report, now involved a wasting of the left forearm, and a 'progressive deterioration' and 'significant functional impairment' in the left wrist in the period since November 2011 when he had last seen Mr Burke.
The experts' views diverged, however as follows:
Left wrist
Associate Professor Barnsley disagreed with Dr Le Leu that Mr Burke:
· had severely restricted ranges of movement;
· could not use his left hand for personal care;
· had suffered a major loss of digital dexterity; and
with his findings in relation to upper extremity impairment.
Right elbow
Associate Professor Barnsley disagreed with Dr Le Leu that Mr Burke:
·had a moderate loss of digital dexterity
·suffered any impairment of his elbow movements; and
with his findings in relation to range of movement.
In tabular form the respective assessments by the medical experts were:
TABLE 1.1
A/Prof Barnsley
Dr Le Leu
%
%
Right elbow
Guide 9.10 (RoM)*
0
2
Guide 9.13 (S)**
0
0
Guide 9.14(F)***
0
10
AMA5 (RoM) Ch 16
-
1
AMA5 Grip strength
Table 16.3
12
18
Left wrist
Guide 9.8 (RoM) - 0
Guide 9.9 (RoM) 7
12 Guide 9.13 (S)
- 0
Guide 9.14 (F) -
8 AMA5 (RoM) Ch 16.3
6
8
AMA5 Grip Strength Ch 16 18 18 Legend: *RoM = Range of movement table; **S = Sensory impairment table; *** F = Functional table
An issue is whether Mr Burke’s grip strength should be a factor in assessing his degree of permanent impairment. If so, the question arises as to whether grip strength can properly be assessed using the Guide. If it is accepted that range of movement tables are not designed to test for grip strength, the next question is whether the criteria listed in Table 9.14 adequately assess the functional impairment to grip strength from the injury to Mr Burke’s left wrist and the injury to his right elbow. If not, recourse can be had to AMA5.
Associate Professor Barnsley stated in his third report concerning assessment of grip strength as a component of upper limb assessment:
At no point in the Comcare Guides was I able to find reference to the use of grip strength in assessing the upper limbs. On page 86 the steps in calculating upper limb impairment set out and include assessments of range of movement and sensory assessments. Table 9.13 classifies weakness using 0 to 5 score and does not advocate the use of grip strength. Table 9.14 is offered as an alternative table which may be used instead of a specific orthopaedic or neurological table or tables.
He also noted the cautionary words in AMA5 (Guides) at 16.8:
Because strength measurements are functional tests influenced by subjective factors that are difficult to control and the Guides for the most part is based on anatomic impairment, the Guides does not assign a large role to such measurements. Those who have contributed to the Guides believe that further research is needed before loss of grip and pinch strength is given a larger role in impairment evaluation.[17]
[17] AMA5, 507.
He went on:
… it is my understanding that even if a more favourable outcome could be achieved through applying one of the tables in the AMA Guides, this is not permissible as the impairment has been assessed using the appropriate Comcare Guide.
Counsel for Mr Burke argued that where a person’s injuries have resulted in multiple impairments and not all those impairments are reflected in the Guide, it is permissible and indeed necessary to refer to AMA5. As he said, Mr Burke’s injuries led to four impairments: partial loss of range of movement; partial loss of digital dexterity; partial loss of use of extremity for personal care; and partial loss of grip strength. Each of these impairments had to be separately assessed.
As he said the Guide states:
…where two or more injuries give rise to different whole person impairments, each injury is to be assessed separately and the final scores for each injury (including any combined score for a particular injury) added together.[18]
[18] Guide, 13. The Tribunal notes that AMA6 contains no section on grip and pinch strength.
He suggested that ‘Assessing the functional loss of the right arm (which includes the right elbow and hand) by reference only to loss of range of rotational motion ignores the loss of the other functional roles of lifting, grasping, holding and fine motor skills’. As he went on: ‘To ignore these other functional losses is to ignore an impairment within the meaning of the Act and to fail to compensate for that impairment in accordance with section 24’.
Further he argued that:
The failure to assess grip strength as a separate impairment is not overcome by simply asserting that the ‘grip strength’ is somehow assessed implicitly by the Tables relating to the loss of range of rotation movement in the elbow or by the criteria in Table 9.14. A person may suffer a partial loss of range of movement in the elbow without any effect on grip strength and conversely. The reason for this is that rotation of the elbow and the grip strength of the hand are separate and distinct bodily systems and bodily functions.
Counsel for Comcare contended that apart from Principle 12, there was no need to depart from the Guide. Specifically, he asserted that Mr Burke’s left wrist impairment can be adequately assessed under Tables 9.9.1a and 9.9.1b (the range of motion tables) of the Guide and it was unnecessary to assess impairment relating to the left wrist under another table of the Guide. Alternatively, counsel asserted that if the left wrist impairment could not adequately be assessed under the range of motion tables, it was possible to assess the impairment under Table 9.14 of the Guide. Further, he asserted it was impermissible to have recourse to AMA5.
He contended in relation to grip strength that it is a component of motor strength and that the narrative to Table 9.14 provides that '[w]here possible, the major criteria should be assessed on the basis of “inter alia” neurological examination of motor strength'. He went on:
… grip strength will influence the ability of a person to undertake personal care tasks. There are a range of personal care tasks that involve grip strength, including opening jar lids, pulling chairs away from tables, and holding and gripping items such as garments, saucepans and shopping bags. The criteria in Table 9.14 direct attention to a person’s ability to undertake personal care tasks and to lift objects. Accordingly, the respondent contends that Table 9.14 has selected particular functional criteria as the basis for assessing upper extremity function, and the functional implications of reduced grip strength fall to be considered and assessed under those criteria.
In relation to Mr Burke’s right elbow counsel for Comcare suggested that on the medical evidence Mr Burke’s impairment is 0 per cent which ever table or tables of the Guide is used. Accordingly, there was no need to have recourse to AMA5.
The Tribunal finds that Mr Burke has two injuries: an injury to his right elbow; and an injury to his left wrist. Each injury gives rise to impairments. The Tribunal also accepts that the impairments involved were partial loss of range of movement; partial loss of digital dexterity; partial loss of use of extremity for personal care; and partial loss of grip strength.
The first issue is whether the Guide’s range of movement tables provide an adequate assessment of Mr Burke’s degree of impairment, or whether there is a need to have recourse to the functional table, Table 9.14. Range of movement tables cover ‘joint movement restriction’[19] or anatomic impairment, whereas the functional tables refer to ‘impairment in overall limb function’. [20] The Tribunal refers to the table at page 17 in these reasons for its consideration of the following assessments.
[19] Whittaker v Comcare (1998) 86 FCR 532 at 543.
[20] Ibid.
Assessment under the range of movement tables
In relation to the Guide’s comparable functional tables, Table 9.4 and Table 9.5, the Full Court of the Federal Court in Whittaker v Comcare accepted that ‘limbs may be injured, and thus whole person impairment may result, without the joints or joint movement being involved’. [21] The Tribunal finds that this statement appropriately reflects the position as to the range of motion tables when applied to Mr Burke’s right elbow.
[21] Ibid.
Mr Burke’s evidence was that he could fully extend his right elbow, albeit with some pain. Under the Guide, both medical experts assessed that Mr Burke either had no loss or minimal loss of range of movement for his right elbow, using the range of movement tables in Chapter 9. Equally Dr Le Leu did not find any significant degree of impairment under the range of motion tables in AMA5 (whole person impairment of 2 per cent). Associate Professor Barnsley did not provide an assessment for loss of range of movement under AMA5 for the right elbow.
The situation in relation to an assessment of the left wrist under the range of movement tables is not as clear-cut. Associate Professor Barnsley assessed Mr Burke’s degree of whole person impairment at 7 per cent; Dr Le Leu at 12 per cent. In Associate Professor Barnsley’s view Mr Burke’s ‘main problem … would appear to have been the ulnar abutment syndrome’. In addition, although Mr Burke’s evidence was that it is his left wrist which has the greater level of impairment, he also acknowledged that use of the brace since 2005 on his left arm restricts his range of movement and also prevents him fully extending his left wrist. Associate Professor Barnes in his third report also noted that Mr Burke's inability to form a full fist with his left hand could be attributed to 'stiffness from wearing the wrist brace'.
In light of Mr Burke’s evidence as to use of the brace, and the likelihood that this impacted on a range of movement assessment as found by Associate Professor Barnsley, the Tribunal prefers the more conservative assessment by Associate Professor Barnsley. That means Mr Burke does not meet the minimum threshold of 10 per cent for his left wrist.
The Tribunal is satisfied, accordingly, that under the range of movement tables, the assessment of Mr Burke’s degree of impairment does not reach the minimum level of 10 per cent according to the relevant range of movement tables in the Guide. That finding as to Mr Burke’s range of motion impairment is reinforced by the evidence from both medical specialists, that if the range of movement tables in AMA5 were used, Mr Burke’s degree of impairment would also not reach the 10 per cent minimum.[22]
[22] The Tribunal notes that Associate Professor Barnsley did not make a finding under the range of motion tables in AMA5 in relation to Mr Burke's right elbow.
Assessment under the functional table, Table 9.14
The next issue is whether the Tribunal can consider the assessments under Table 9.14 of the Guide. The Tribunal is aware that it is only if a table or tables do not adequately reflect a person’s degree of impairment that it can have recourse to a functional table. It is not sufficient that the person has not met the minimum threshold.
Both Dr Le Leu and Associate Professor Barnsley found that the range of movement tables did not adequately assess Mr Burke’s level of impairment. In particular in the view of Associate Professor Barnsley the range of movement tables did not sufficiently reflect the pain Mr Burke experiences. Accordingly the Tribunal finds that the range of movement tables have not adequately assessed the degree of impairment Mr Burke experiences as a consequence of his elbow and wrist injuries, and that Mr Burke has 'objectively identified orthopaedic and neurological' conditions. These findings, together with the principle that the decision-maker should choose the table ‘which yields … the most favourable result to the employee’,[23] have led the Tribunal to conclude that the next step should be an assessment under the functional table, Table 9.14, in the Guide.
[23] Principles of Assessment, Principle 8, Guide, 13.
Table 9.14 assesses upper extremity function. The table takes into consideration both the dominant and the non-dominant extremity. That is appropriate in Mr Burke’s case since he has an accepted injury to both his right elbow and to his left wrist. The relevant parts of Table 9.14 are reproduced.
Table 9.14
% WPI
Non-dominant extremity
%WPI
Dominant extremity
% WPI
Both extremities
MAJOR CRITERIA
(at least one required)
MINOR CRITERIA
(at least two required where listed)
3
5
10
Minor loss of digital dexterity.
Minor limitations in use of
extremity for personal care
Rests after writing an A4 page.
Cannot lift more than 30 kg (males)
Finds it difficult to do up shoelaces.
Fumbles when joining paper clips
8
10
20
Moderate loss of digital dexterity.
Moderate limitations in use of extremity for personal care.
Rests after writing half an A4 page.
Cannot lift more than 10 kg (males)
Cannot do up shoelaces.
Cannot join paperclips.
Dresses slowly unassisted.
The major criteria in Table 9.14 focus on the impairments of digital dexterity and use of the upper extremity for personal care. No definitions are provided in either the Guide or AMA5 as to the meaning of these expressions. The dictionary meaning of ‘dexterity’ is ‘n. adroitness or skill in using the hands of mind’.[24] ‘Digital’ is ‘adj. 1. of or relating to a digit or finger’.[25] That means digital dexterity refers to the adroitness or skill of the hand or fingers of the hand. This meaning is consistent with that found in the case law where the expression ‘digital dexterity’ has been interpreted as encompassing ‘the capacity to handle things skilfully and efficiently, or the ease of use of the fingers and hand without undue restriction, or a demonstrable restriction, in the use of the fingers’.[26] Digital dexterity in this sense is involved in all the minor criteria listed in Table 9.14 except lifting.
[24] Macquarie Concise Dictionary’ (5th ed, 2009), 339.
[25] Id at 344.
[26] Re Robinson and Comcare [2007] AATA 2005, at [55]
‘Personal care’ is also not defined. ‘Personal’ as relevant, means ‘6. Relating to the person, body, or bodily aspect: personal cleanliness’.[27] ‘Care’ as relevant is ‘5. An object of concern or attention’.[28] So ‘personal care’ in Table 9.14 refers to the use of the upper extremity to attend to, care for, or maintain bodily functions. Examples are toileting, doing one’s hair, cleaning teeth, eating, showering, or dressing. Doing up shoelaces and dressing are the only two minor criteria reflecting personal care.
[27] Id at 936.
[28] Id at 191.
The Tribunal does not accept the contention by Comcare that personal care can extend to activities such as opening jars, moving furniture, lifting and holding items such as saucepans and shopping bags. None of these activities relate directly to the care of the person, body or bodily aspect. These findings are consistent with the Tribunal’s discussion of this issue in Haberfield v Department of Veterans’ Affairs:[29]
The expression ‘personal care’ is not defined, but would seem to be an ordinary English expression. It is a composite phrase which conveys the notion of catering for the basic needs of an individual which must be met if that individual is to function adequately within the limits of his or her physical ability and mental capacity. Without being exhaustive, the phrase embraces such tasks as bathing, grooming, eating, toileting, achieving mobility, taking medication and complying with prescribed exercise or therapy programs (some of these tasks, of course, may be outside the statutory definition because of the specific exclusions). This approach to the expression ‘personal care’ is consistent with the Explanatory Memorandum to the Commonwealth Employees' Rehabilitation and Compensation Bill 1988, which identified ‘attendant care services’ as including bathing, grooming, assistance with eating and drinking, preparing and caring for artificial aids and appliances and helping with exercise. Not all services that are desirable, or even necessary for the personal care of an employee are within the definition. The qualifying words in the definition make it clear that the services must be required for the employee's essential and regular personal care. This is an important qualification.[30]
[29] Haberfield v Department of Veterans’ Affairs [2002] FCA 1579.
[30] Id at [24] – [25].
Associate Professor Barnsley found that Mr Burke had normal digital dexterity on the right side and no limitations on the use of the upper extremity for personal care. That meant Mr Burke did not meet either major criterion in Table 9.14 and he made an assessment of 0 per cent accordingly.
By contrast, Dr Le Leu found a ‘best fit’ of 10 per cent degree of whole person impairment under Table 9.14 for the ‘dominant extremity’. That assessment appears to be based on a combination of the criteria in the first and second aspects of Table 9.14 cited at [77] of these reasons. His finding of a ‘moderate loss of digital dexterity’ is a major criterion for the second category cited at [77]; while his finding of ‘minor limitations on use of the extremity for personal care’ is a major criterion in the first category of the table at [77]. As for the minor criteria, Dr Le Leu noted ‘He finds it difficult to do up shoelaces’ and ‘cannot lift more than 30kg’, which come from the first category in the table; while his finding that Mr Burke ‘rests after writing half an A4 page’, and cannot lift more than 10kg are minor criteria for the second category in the table. However, despite the combination of criteria, he assesses Mr Burke as having whole person impairment for the dominant arm at 10 per cent under the first, not the second part of the table at [77].
Mr Burke’s evidence was that he does suffer some limitations of digital dexterity. He is no longer a two-handed typist. He now only uses his right hand when working on the computer and for entering meter readings and transmitting the findings to the gas and electricity authority. He also can no longer use chopsticks to eat, he cannot load or unload his fishing boat from a trailer; he cannot empty the catcher of his mower. He cannot hang out the clothes or iron. All these activities involve some aspect of digital dexterity.
At the same time, the Tribunal finds that Mr Burke does not appear to suffer ‘minor limitations in use of extremity for personal care’. Mr Burke’s evidence was that he can do most things, albeit more slowly than before. He can do up buttons on a shirt, put on his pants and belt; put on his glasses; take out and clean an earring in his left ear; wash and comb his hair, clean his teeth, shave, and toilet himself. That means he does not come within the alternative major criteria of 'minor/moderate limitations in use of extremity for personal care'.
Neither medical expert found that Mr Burke exaggerated his symptoms, and the Tribunal also found Mr Burke to be a witness of truth. In those circumstances the Tribunal finds, on the evidence, that Mr Burke does experience a ‘minor loss of digital dexterity’ in the limitations he now faces with typing, eating, loading and unloading a boat from the trailer, and emptying the mower. Each of these functions is an activity of daily living involving digital dexterity.
He also meets at least two of the corresponding minor criteria in the first category in the table at [77]. He cannot lift more than 10kg (a finding supporting by both medical experts), he finds it difficult to do up shoelaces, in that although he can use his right hand to tie the laces, he cannot do it with sufficient strength to prevent the laces frequently coming undone during the day; and he has to rest after writing half an A4 page. These findings are based on the evidence of Mr Burke, and Dr Le Leu which the Tribunal, on the evidence which it accepts, prefers.
These criteria relate principally to the dominant extremity. The Tribunal notes that, on the evidence, Mr Burke has more than a ‘minor loss of digital dexterity’ in relation to his left wrist. He regards his left wrist as the most impaired and in that context Associate Professor Barnsley, in his third report, concluded that Mr Burke, by February 2012, was exhibiting a ‘significant functional impairment stemming from the left wrist’. Mr Burke does not use his left hand in any active sense to lace shoes, and on the evidence would not be able to lift 30kg. On that basis he would meet the minor criteria also
On that basis, Mr Burke succeeds, as he meets one of the two major criteria, namely, he has a partial loss of digital dexterity, and at least two of the minor criteria. If the Combined Values Chart, and relying on the assessment by Dr Le Leu, the Tribunal finds that Mr Burke’s level of impairment would equate to 17 per cent. He therefore exceeds the minimum threshold of 10 per cent under Table 9.14.
Functional impairment of grip strength.
Despite this finding, the Tribunal must still assess whether use of Table 9.14 in the Guide has provided an adequate assessment of all Mr Burke’s impairments, including his claimed partial loss of grip strength. In that context, the Tribunal notes that both medical experts found that Mr Burke suffered a significant degree of grip strength impairment (12 and 18 per cent respectively for the right elbow, and 18 per cent for both Associate Professor Barnsley and Dr Leu, for the left wrist) under AMA5.
There is no issue that the range of movement tables in the Guide are not designed to reflect loss of grip strength. Associate Professor Barnsley even goes so far as saying that the tables of the Guide as a whole do not purport to test for grip strength. However, counsel for Comcare asserted that there are criteria in Table 9.14 which do adequately test for grip strength. In particular he contended that aspects of personal care such as doing up buttons, belts, zips, shoelaces, and cutting up food, involve elements of grip strength. In addition, the lifting criterion, and some aspects of digital dexterity such as writing, ability to cut up food, open jars, and to hold and lift objects also involve grip strength. The issue is whether these criteria are adequate to encompass different aspects of ‘grip strength’ and whether they are adequately reflected in Table 9.14.
Counsel for Mr Burke contended in relation to an individual who is right extremity dominant that the hands ‘have other functions to perform as bodily systems, including without being limited to lifting, grasping, holding and digital manipulation of things (fine motor skills)’.
The Macquarie Australian Dictionary defines ‘grip’ as: ‘the act of grasping; a seizing and holding fast’.[31] The Oxford English Dictionary online defines ‘grip’ as: ‘Firm hold or grasp; the action of gripping, grasping, or clutching’. To ‘grip’ is also ‘(1). The act of grasping; a seizing and holding fast; firm grasp’.[32]
[31] Macquarie Australian Dictionary (5th ed, 2009) 545.
[32] The Random House Dictionary of the English Language (The Unabridged edition), 623.
These definitions indicate that gripping is a function of the hand and fingers and can take one of several forms:
‘(A) hook grip; (B) power grip; (C) precision grip’.
A ‘hook grip’: is ‘a functional posture of the hand, as that usually assumed when grasping handles or straps or suspending or pulling upon an object; fingers are flexed toward the palm, to a degree depending on the size of grasped object’; a ‘power grip’ is ‘a functional posture of the hand, as that usually assumed when holding a hammer or piece of rope: the fingers are flexed around an object with counter pressure from the thumb, which is positioned to bring either its pad or its medial border firmly against the held object’; a ‘precision grip’ is ‘a functional posture of the hand, as that usually assumed when holding a pen or pencil: the object is grasped between the tips of the thumb and fingers (most often the index, with the middle finger often involved)’.[33]
[33] Dorland’s Illustrated Medical Dictionary (30th ed, Saunders), 799.
Other descriptions are:
‘a ‘squeeze grip (simple hammer squeeze, screwdriver squeeze with rotation), disc grip (for tightening or loosening jar lids), hook grip (for carrying a suitcase) and spherical grip for holding a ball’.[34]
[34] A Clerke, ‘Factors Influencing Grip Strength Testing in Teenagers’ (Doctor of Philosophy thesis, Faculty of Health Science; University of Sydney, 2006)”;
These definitions and descriptions indicate that there are a variety of actions which fall within the grip movement of the hand. When the major descriptions are compared to the criteria in Table 9.14, it is apparent that some of the grip movements are, or are capable of, being assessed under that Table. For instance, the hook grip, including the ability to hold, is used when lifting weights. The ‘precision grip’ is involved in the ability to write an A4 page and possibly by some aspects of digital dexterity such as doing up buttons or press studs, personal care tasks for which adroitness or skills are required. A ‘power grip’ could be opening a tight lid of a jar or bottle when cooking, possibly being covered by digital dexterity. In summary the Tribunal considers that the principal varieties of grip are capable of being assessed under Table 9.14. In that context the Tribunal notes that the instructions to Table 9.14 state that ‘Where possible, the major criteria should be assessed on the basis of neurological examination of motor strength, co-ordination and dexterity[35]’. In other words, strength, co-ordination and dexterity are all intended to be tested under that table.
[35] Guide, 108
However, the Tribunal also notes that it was the firm view of Associate Professor Barnsley that grip strength is not and was not intended to be covered by the Guide. Consistently with that view, Associate Professor Barnsley found he had 0 per cent impairment for the left wrist under Table 9.14. So although he conceded that Mr Burke now suffers a 'significant functional loss' in relation to his left wrist and both he and Dr Le Leu found, using the AMA5 table, that Mr Burke had a significant loss of grip strength, neither of them appeared to be of the opinion that grip strength was assessable under Table 9.14.
That illustrates the deficiency in the argument that Table 9.14 covers impairment of grip strength. The criteria chosen in the Table, particularly given the general terms in which the major criteria are expressed, neither expressly nor in the narrative, lend themselves to an interpretation which identifies loss of grip strength. That is how experienced practitioners so interpret the Guide. This failure means that an applicant whose injury has led to a significant impairment in grip strength, may not adequately be assessed under Table 9.14.
The Tribunal finds, however, that this does not benefit Mr Burke. The impairments he has experienced and that are not explicitly covered by the criteria in Table 9.14, comprise an inability to grip the handlebars of a motor-bike, to start and steer his boat and to load it onto and off a boat trailer, to use chopsticks or a fork to spear meat, and to push up a heavy meter box lid. He also can no longer use his left hand for typing or entering information on a digital device. An impairment relating to eating could fairly be covered by the personal care criterion, and the typing impairment by digital dexterity. In addition, Mr Burke’s inability to continue with leisure activities such as fishing and motor-cycle riding would be compensated by the Non-Economic Loss Tables. So that only leaves his inability to lift heavy meter box lids unaccounted for. The Tribunal does not consider that is of such moment as to justify recourse to AMA5.
The Tribunal also notes that Mr Burke’s main problem relates to his left wrist which is his non-dominant hand. So although the medical evidence indicates he has lost a significant degree of grip strength in that wrist, the ‘activities of daily living’ to which this impairment relates are not as significant as would be the case if he was left-hand dominant.
In conclusion, although some aspects of gripping may not be covered by the relevant table, Mr Burke’s degree of impairment due to his loss of grip strength is either covered by Table 9.14, or by the Non-Economic Loss assessments. The Tribunal is not satisfied that any significant grip strength impairment experienced by Mr Burke as a consequence of his injuries has not been assessed under Table 9.14. That means that the Tribunal is not prepared to find that Mr Burke’s impairments have not adequately been assessed under the Guide. The Tribunal is fortified in this finding by the caution expressed in relation to use of the grip strength tables in AMA5.[36]
[36]AMA5, 508.
Accordingly the Tribunal sets aside the decision to deny Mr Burke compensation for permanent impairment for his accepted injuries and finds that his level of whole person impairment is remits the matter to Comcare to determine the amount of that compensation taking into account also the responses to the economic loss questionnaire.
I certify that the preceding 101 (one hundred and one) paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member and Ms EA Shanahan, Member. ..........................[sgd]..............................................
Associate
Dated 12 October 2012
Date(s) of hearing 9 - 10 August 2012 Counsel for the Applicant Alan Anforth Advocate for the Applicant Geoff Wilson Solicitors for the Applicant Maurice Blackburn Counsel for the Respondent Peter Woulfe Advocate for the Respondent Bradley Dean Solicitors for the Respondent Australian Government Solicitor
[5] Guide, 14. .
0
6
0