Imelda Palacio and Australian Postal Corporation
[2012] AATA 171
•16 March 2012
[2012] AATA 171
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2010/4186
Re
Imelda Palacio
APPLICANT
And
Australian Postal Corporation
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Dr H Haikal-MukhtarDate 16 March 2012 Place Sydney The decision under review is affirmed.
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Senior Member A K Britton
CATCHWORDS
WORKERS’ COMPENSATION – permanent impairment – Guide to the Assessment of the Degree of Permanent Impairment – degree of permanent impairment – appropriate method of assessment – whether to assess under Table 9.11 or 9.14 – precondition to the application of Table 9.14 not met – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) - ss 5A, 24, s 28(3A)
SECONDARY MATERIALS
Guide to the Assessment of the Degree of Permanent Impairment
REASONS FOR DECISION
Senior Member A K Britton
Dr H Haikal-MukhtarMarch 2012
Mrs Imelda Palacio seeks review of the decision made by the Australian Postal Corporation to refuse her claim for compensation for permanent impairment and non-economic loss in respect of an injury sustained in 2006 involving her right shoulder. Compensation will only be payable to Mrs Palacio for permanent impairment and non-economic loss if, as a result of the subject injury, her level of permanent impairment is at least ten per cent (ss 5A and 24 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act)). The assessment of the level of permanent impairment must be made under the “Guide to the Assessment of the Degree of Permanent Impairment” (the Guide) (ss 5A and 24 of the Act).
While there is no argument that Australia Post is liable for the injury to Mrs Palacio’s shoulder, the parties disagree about whether the ten per cent impairment threshold entitling her to compensation for permanent impairment and non-economic loss has been reached. The resolution of this question turns on the appropriate method of assessment. Mrs Palacio contends that the assessment should be undertaken under Table 9.14 of the Guide. Australia Post, on the other hand, contends that the assessment should be undertaken under Table 9.11. It is agreed that the ten per cent threshold would not be reached if the assessment was made under Table 9.11.
CAN MRS PALACIO’S CONDITION BE ASSESSED UNDER TABLE 9.14?
Part II of Chapter 9 of the Guide deals with the assessment of the “upper extremities” — which includes the shoulder — and contains a number of tables under which the shoulder may be assessed. The introduction to Part II states (at p 86):
If the medical assessor feels that the impairment is not adequately assessed using one of Tables 9.9 [wrists], 9.10 [elbows], and 9.11 [shoulders], 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 WPI [whole person impairment] rating using Table 9.14.
The introduction to Table 9.14 states (at p 108):
9.14 Upper Extremity Function
Before using Table 9.14 the medical assessor should read the instructions (see Part II – Introduction, page 86) preceding the specific joint impairment tables (Tables 9.8–9.11). Table 9.14 is used strictly in accordance with those instructions.
The parties agree that the effect of these passages is that Table 9.14 can only be used to assess impairment of the shoulder where:
·the condition involves radiographically demonstrated joint instability, radiographically demonstrated arthritis or where the employee has had an arthroplasty; and
·the medical assessor feels that the impairment is not adequately assessed using Table 9.11.
Mrs Palacio contends that both criteria are met. Australia Post disagrees.
DOES MS PALACIO’S CONDITION INVOLVE RADIOGRAPHICALLY DEMONSTRATED ARTHRITIS?
The parties agree that Mrs Palacio has not undergone an arthroplasty and her condition, which is agreed to be “an impingement and subacromial bursitis”, does not involve joint instability. However they disagree about whether Mrs Palacio’s condition “involves radiographically demonstrated arthritis”. Mrs Palacio asserts that it does and relies on the opinion provided by her treating orthopaedic surgeon, Dr Vijay Maniam. Australia Post disagrees and relies on the opinion of orthopaedic surgeon, Dr Paul Hitchen.
Written reports prepared by each expert were tendered in these proceedings and, in addition, each gave oral evidence.
Initially, when asked to provide an opinion about the level of permanent impairment of Mrs Palacio’s right shoulder, Dr Maniam provided an assessment made under Table 9.11 (report dated 18 July 2011). One month later, he provided an assessment under Table 9.14. He did not address, in any of the reports prepared following those assessments, the reason he had decided to undertake the second assessment under Table 9.14, or, whether in his opinion, the pre-conditions to performing an assessment under that Table had been satisfied.
Drs Maniam and Hitchen agree that an MRI taken of Mrs Palacio’s right shoulder in 2007 revealed arthritis, specifically in the acromioclavicular, not glenohumeral, joint. They disagree, however, about whether her condition “involves” arthritis. Dr Hitchen is of the opinion that Mrs Palacio’s condition was neither caused by, nor related to, her arthritis. In his opinion, the evidence of arthritis revealed on MRI was an incidental finding commonly found in the normal population. Furthermore in his view the arthritis is asymptomatic. In oral evidence, Dr Maniam stated that in his opinion, arthritis was involved in Mrs Palacio’s condition, but did not given reasons for that opinion.
Counsel for Mrs Palacio argues that Dr Maniam, as the treating doctor, is better placed than Dr Hitchen to comment on whether his patient’s condition “involves arthritis”. He contends that Dr Maniam has held the opinion for some time that Mrs Palacio’s condition involves arthritis, pointing to his diagnosis of “Bilateral subacromial bursitis/impingement and acromioclavicular joint OA [osteoarthritis]” set out in a request he made for an MRI in early 2007. In addition, he argues that Dr Maniam would not have used the term “traumatic arthritis” in his report of 18 July 2011, had he shared Dr Hitchen’s opinion that the arthritis was simply constitutional or degenerative in origin.
Counsel for Mrs Palacio submits that support for Dr Maniam’s opinion can be found in the report prepared by Dr Holman dated 19 June 2006, which states that Mrs Palacio has had a “temporary aggravation of pre-existing osteoarthritic changes in the right acromioclavicular joint and right sterno-clavicular joint”.
FINDINGS AND CONCLUSIONS
The Guide is a legislative instrument and binding on the Tribunal (s 28(3A) of the Act). As noted, Table 9.14 of the Guide may only be used to determine the WPI rating of the shoulder if:
[T]he medical assessor feels that the impairment is not adequately assessed using … [Table] 9.11 [shoulders], and the condition involves … radiographically demonstrated arthritis …
The issue we must decide is whether each of those pre-conditions are satisfied.
Unlike the first pre-condition — “the assessor feels that the impairment is not adequately assessed” — the second — whether the subject condition “involves … radiographically demonstrated arthritis” must be objectively assessed.
The word “involves” is not defined by the Guide and therefore it must be given its ordinary meaning having regard to its context. The Macquarie Dictionary (Fifth Edition, 2009) offers the following definitions:
Involve …
1. to include as a necessary circumstance, condition or consequence; imply, entail. 2. to affect, as something within the scope of operations. 3. to include, contain or comprehend within itself or its scope. 4. to bring into an intricate or complicated form or condition. 5. to cause to be inextricably associated or concerned, as in something embarrassing or unfavourable. 6. to implicate, as in guilt or crime, or in any matter or affair. 7. to evoke great or excessive interest in … 8. to roll, wrap or shroud, as in something that surrounds …
The Oxford English Dictionary, (Second Edition, 1989, online version December 2011) has a similar definition:
To enfold, envelop, entangle, include: predicated either of an agent or of a surrounding or enveloping substance or material.
1 trans. To roll or enwrap in anything that is wound round, or surrounds as a case or covering; to enfold, to envelop …
2.a. To wind in a spiral form, or in a series of curves, coils, or folds; to wreathe, coil, entwine. b. fig. To join as by winding together or intertwining; to ‘wrap up’ with.
3. a. fig. To envelop within the folds of some condition or circumstance; to environ, esp. so as to obscure or embarrass; to beset with difficulty or obscurity … b. To entangle (a matter), to render intricate.
…
6. trans. To include; to contain, imply … b. Of a thing: To include within its folds or ramifications, to contain, comprise, comprehend … c. esp. To contain implicitly; to include as a necessary (and therefore unexpressed) feature, circumstance, antecedent condition, or consequence, to imply, entail. d. To include or affect in its operation.
7. To roll up within itself, to envelop and take in; to overwhelm and swallow up.
…
These definitions reveal that the word “involves” is wide and imprecise and capable of differing shades of meaning. In the context of the Guides these include “a consequence of”, “includes”, “associated with”, “affects”, “entangles” and “envelops”. We agree with the submission made for Mrs Palacio that, in the context of the Guide, the word “involves” does not import a requirement that the arthritis be caused by the subject condition, either directly or indirectly. Nor does it import a requirement that there be some link between the subject employment and the arthritis. The pre-condition is directed solely at the relationship between the subject condition and the arthritis.
Accordingly, the question we must ask is, objectively assessed, “Does Mrs Palacio’s condition involve radiographically demonstrated arthritis?”
Mrs Palacio submitted that an inference can be drawn from Dr Maniam’s use of the term “traumatic arthritis” that he thought her condition “involves arthritis”. That inference, if available, does not disclose the basis for that opinion. While plain that Dr Maniam has long been of the view that Mrs Palacio suffers from arthritis in both shoulders — an opinion which is non-controversial, he did not explain in either his oral evidence or in his reports, the basis for his opinion that her condition “involves arthritis”. His failure to identify the facts or reasoning process on which his opinion is based, means that his opinion on this issue can be given little, if any, weight.
The reference in Dr Holman’s 2006 report to a “temporary aggravation of pre-existing osteoarthritic changes” in our opinion does not assist Mrs Palacio. While this indicates that in Dr Holman’s opinion there was an involvement between the subject condition and arthritis, his opinion was that the aggravation was temporary. There is no evidence to suggest that the aggravation identified by Dr Holman continued. The use of the present tense “involves” indicates that to satisfy the pre-condition, the involvement or association must be current.
We accept, as submitted for Mrs Palacio, that given its beneficial nature, the Guide should be interpreted liberally. Nonetheless in our opinion there is no ambiguity or uncertainty that before an assessment under Table 9.14 can be undertaken, the impugned pre-condition must be met or, the pre-condition itself. In approaching the task of construing the pre-condition we have accepted that the word “involves” is wide and imprecise. Nonetheless in the absence of any explanation about how Mrs Palacio’s condition “involves” arthritis and given Dr Hitchen’s plausible and cogent explanation that it does not, we have decided that the pre-condition is not satisfied.
It follows that an assessment under Table 9.14 is not permitted. As agreed by the parties, the ten per cent threshold, necessary for the payment of compensation for permanent impairment and non-economic loss will not be reached by an assessment under the only alternative assessment tool, Table 9.11. Accordingly, we must affirm the decision under review to refuse Mrs Palacio’s claim for permanent impairment and non-economic loss.
I certify that the preceding 22 (twenty two) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton and Dr H Haikal-Mukhtar.
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Associate to Senior Member A K Britton
Dated 16 March 2012
Date(s) of hearing 2 and 3 February 2012 Counsel for the Applicant Mr M Vincent Solicitors for the Applicant Mr P Erman, Peter Erman - Solicitor Counsel for the Respondent Mr P Jones Solicitors for the Respondent Ms D Hatton, Australian Postal Corporation
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