Guppy and Australian Postal Corporation
[2012] AATA 806
•16 November 2012
[2012] AATA 806
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/2468
Re
Patricia Guppy
APPLICANT
And
Australian Postal Corporation
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Dr M Sullivan, MemberDate 16 November 2012 Place Brisbane The decision under review is affirmed.
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Senior Member Bernard J McCabe
CATCHWORDS
WORKERS COMPENSATION – Claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 – work related condition – degree of permanent impairment – the way in which impairment is assessed – decision affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 24 and 27.
CASES
Whiteman v Australian Postal Corporation [2011] FCA 1427.
Whiteman and Australian postal Corporation [2010] AATA 645.
SECONDARY MATERIALS
Comcare Guide to the assessment of the degree of permanent impairment (2nd edition).
American Medical Association, 2001, Guide to the Evaluation of Permanent Impairment, 5th Ed, Chicago: American Medical Association.
REASONS FOR DECISION
Senior Member Bernard J McCabe
Dr M Sullivan, Member16 November 2012
Patricia Guppy is the applicant in these proceedings. She has a work-related shoulder condition. She asked for compensation under ss 24 and 27 of the Safety Rehabilitation and Compensation Act 1988. The Australian Postal Corporation, the respondent, accepted liability for the injury but declined to pay compensation under ss 24 and 27 in a reviewable decision dated 18 April 2011. The respondent says the applicant’s degree of permanent impairment is less than 10%, the threshold at which the respondent becomes liable to pay under the legislation.
Both parties refer to the provisions of the Comcare Guide to the Assessment of the Degree of Permanent Impairment (2nd edition) (“the Comcare Guide”). But there is a dispute over the way in which the extent of the applicant’s whole person impairment (WPI) should be calculated. The dispute relates in particular to the way in which the Comcare Guide and the American Medical Association Guide to the Evaluation of Permanent Impairment (the AMA Guide) interact.
FACTUAL BASIS FOR THE DISPUTE
Ms Guppy sustained two injuries to her right shoulder at work: one in 2006, and one in 2007. The respondent accepted liability for the resulting right shoulder condition. On 22 May 2008, Ms Guppy’s treating orthopaedic surgeon performed an “excisional arthroplasty of the right AC joint”. Ms Guppy subsequently sought compensation. She continues to experience abnormal shoulder motion following the procedure.
HOW DOES ONE ASSESS THE DEGREE OF IMPAIRMENT?
Section 24(7) provides permanent impairment compensation is not payable unless the degree of impairment exceeds 10%. The respondent in this case says the applicant only experiences 9% impairment. Ms Guppy disagrees. The dispute turns on the way in which the degree of impairment is assessed under the relevant tables in the Comcare Guide.
The applicant refers to table 9.1l of the Comcare Guide which says (at p 97):
Where an arthroplasty procedure has been undertaken, refer to the edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment current at the date of the assessment. Combine the total WPI [whole person impairment] rating for abnormal motion with the relevant WPI rating for arthroplasty, obtained from the American Medical Association’s Guides.
The applicant says the instructions referred to above mean that in cases where an arthroplasty has been performed – as in this case – one must refer to the AMA Guide and combine the total WPI rating for abnormal motion with the WPI rating for arthroplasty: see applicant’s statement of facts and contentions at [20]. The statement explains:
(a)the specialists who had seen the applicant accept she has an upper extremity impairment (“UEI”) of 10% in respect of the arthroplasty: see Table 16.27 of the AMA Guide. That number converts to a WPI rating of 6% under table 16-3 of the AMA Guide;
(b)Drs Shaw and MacGroarty assess the degree of abnormal motion at 6% UEI. The respondent agreed to accept that figure in a statement of agreed facts (exhibit 4). A UEI of 6% translates to 4% WPI under Table 16-3.
The statement goes on to say (at [23]) that the two WPI figures should be combined using the Combined Values Table (at p 604 of the AMA Guide) to arrive at a total WPI of 10% – which meets the threshold specified in s 24(7).
The respondent takes a different approach. It says the two UEI figures referred to above (ie 10% in respect of arthroplasty and 6% in respect of abnormal motion) should be combined before the combined figure is converted to a WPI figure. If one adds those two raw scores together before performing a conversion, it is accepted the applicant only scores 9% WPI. The respondent takes its cue from the AMA Guide which provides (at p 438):
…multiple regional impairments, such as those of the hand, wrist, elbow, and shoulder, are first expressed individually as upper extremity impairments and then combined to determine the total upper extremity impairment. The latter is finally converted to whole person impairment (Table 16-3). The combined value determination is based on the following formula: A% + B% (100% – A%) = the combined value of A% and B%.
In short, the applicant says I should follow the wording of the instruction in the Comcare Guide quoted above in preference to the wording of the AMA Guide. The respondent says that makes no sense: the Comcare Guide clearly intends that the AMA Guide be followed, and a decision to the contrary would lead to all kinds of inconsistent outcomes.
The respondent referred me to the decision of the Federal Court in Whiteman v Australian Postal Corporation [2011] FCA 1427. Foster J (at [57]) discussed the effect of clause 9.11 of the Comcare Guide in a case where the applicant wished to combine ratings derived under several other tables in the Comcare Guide with a rating under the AMA Guide. His Honour found clause 9.11 of the Comcare Guide should be interpreted so it read:
If you are dealing with a claimant who has undergone an arthroplasty procedure, pick up the AMA guide and use that guide to calculate all relevant WPI ratings.
That is fair enough, but Ms Guppy says the problem here is different. In this case, there is no suggestion the two guides should be used as alternatives. Both parties accept the AMA Guide is authoritative because the Comcare Guide says so. But the applicant says the instruction in clause 9.11 of the Comcare Guide which directs decision-makers to the AMA Guide includes an instruction that effectively modifies the way that WPI is calculated under the AMA Guide. The relevant provisions of the AMA Guide are not simply incorporated into the Comcare Guide by reference: the AMA Guide is effectively modified by the Comcare Guide. Ms Guppy says Whiteman has nothing to say about that, and I am therefore bound by what is written in the Comcare Guide.
The respondent says a careful reading of the decision in Whiteman suggests the Federal Court did endorse the respondent’s approach in this case. The respondent’s statement of facts and contentions points out (at [9]-[10]: [12]-[13]) Foster J did not criticise the Tribunal’s finding below that a medical expert correctly followed the AMA Guide by combining UEI figures before converting the combined figure using the combined values table: see Whiteman and Australian Postal Corporation [2010] AATA 645 at [45], [60].
I think the respondent is right. The words of clause 9.11 must be read in the context of the Comcare Guide as a whole. The Comcare Guide makes it clear that resort should be had to the AMA Guide in certain circumstances. It would be odd if the words of the referring provision in the Comcare Guide were interpreted so that the provisions of the AMA Guide were modified arbitrarily. I am satisfied the instruction in clause 9.11 to combine the WPI ratings should be read as an instruction to deal with the WPI ratings in accordance with the AMA Guide.
In those circumstances, the decision under review must be affirmed.
15. I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe and Dr M Sullivan, Member.
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Associate
Dated 16 November 2012
Date of hearing 3 September 2012 Solicitors for the Applicant Mr Nolan of Maurice Blackburn Lawyers Counsel for the Respondent Mr Gollan Solicitors for the Respondent DLA Piper Australia
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