Irwin and Border Express Pty Ltd
[2011] AATA 222
•1 April 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 222
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/1583
GENERAL ADMINISTRATIVE DIVISION )
Re PETER IRWIN Applicant
And
BORDER EXPRESS PTY LTD
Respondent
DECISION
Tribunal Mr S. Webb, Member
Dr B. Hughson, MemberDate1 April 2011
PlaceCanberra
Decision The decision under review is set aside and in place thereof the Tribunal decides that Mr Irwin has a 20 percent permanent impairment as a result of an injury to his right lower limb. He is entitled to compensation for permanent impairment and non-economic loss in respect of his accepted injuries.
The matter is remitted to Border Express to calculate the amounts of compensation that are payable to Mr Irwin, consistent with this decision.
The parties have 14 days in which to file submissions, if any, in respect to orders for costs.
......................[sgd]........................
Mr S. Webb, Presiding Member
CATCHWORDS
WORKERS COMPENSATION - injury - permanent impairment – meaning of ‘impairment’ - degree of impairment - Comcare approved Guide - construction of instructions in Chapter 9 of the Guide concerning Tables 9.1, 9.2 and 9.7 – Principles of Assessment - procedures in Guide to be applied – ambiguity – beneficial construction preferred - decision set aside
Legislative Instruments Act 2003 s 13
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 14, 24, 27, 28, 67
Canute v Comcare [2006] HCA 47
CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384
Comcare v Broadhurst [2011] FCAFC 39
Comcare v Fiedler (2001) 34 AAR 237
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 35 ALR 151
Dallikavak v Minister of State for Immigration and Ethnic Affairs (1985) 9 FCR 98
Fellowes v Military Rehabilitation and Compensation Commission [2009] HCA 38
Houssein v Under Secretary, Department of Industrial Relations and Technology and Industrial Commission of NSW (1982) 38 ALR 577
I W v City of Perth (1996) 191 CLR 1
Martin v Australian Postal Corporation [1999] FCA 655
Network Ten Pty Limited v TCN Channel Nine Pty Limited (2004) 218 CLR 273
Newcastle City Council v GIO General Limited (1997) 191 CLR 85
Page v Telstra Corporation Ltd [2004] FCAFC 80
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Re JJT; Ex parte Victoria Legal Aid [1998] HCA 44
Shi v Migration Agents Registration Authority [2008] HCA 31
Sloane v Minister for Immigration, Local Government and Multicultural Affairs (1992) 37 FCR 429
Stingel v Clark (2006) 226 CLR 442
Thompson v Goold & Co [1910] AC 409
Waters v Public Transport Corporation (1991) 173 CLR 349
Wilson v Wilson's Tile Works Pty Limited (1960) 104 CLR 328
Whittaker v Comcare (1998) 86 FCR 532
REASONS FOR DECISION
1 April 2011 Mr S. Webb, Presiding Member
Dr B. Hughson, Member1. Peter Irwin was injured in the course of his employment by Border Express Pty Ltd – a forklift drove over his right foot. He claimed compensation.[1] Border Express accepted liability[2] and paid compensation for incapacity and medical treatment expenses. Mr Irwin claimed compensation for permanent impairment and non-economic loss. Border Express rejected his claim by primary determination and on reconsideration. Mr Irwin applied for review of this decision.
[1] T3.
[2] T7.
2. The issue to be decided is whether Mr Irwin is entitled to payment of compensation for permanent impairment under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). Attendant issues to be addressed are:
(a)whether Mr Irwin suffers from a permanent impairment as a result of the injury to his right foot and ankle; and if so
(b)the degree of the impairment;
(c)the amount of compensation for permanent impairment that is payable, if any; and
(d)the amount of compensation for non-economic loss that is payable, if any.
3. We note that Border Express is a licensee under Part VIII of the SRC Act. The history is not controversial. The following brief facts are not in dispute and are established to the reasonable satisfaction standard on the materials before us.
(a)On 29 February 2008 a forklift collided with Mr Irwin in the course of his employment as a driver by Border Express.[3]
[3] T4, T5 and T6.
(b)This incident caused multiple fractures to his right foot and ankle, specifically a fracture of the calcaneus (comminuted anteriorly with a vertical component extending to the sub-talar joint), undisplaced fractures of the posterior aspect of the distal tibia and the lateral malleolus, and fractures of the medial and lateral cuneiform bones.[4]
[4] Report by Dr Davé, treating orthopaedic surgeon: T8 folio 29; Report by Dr Bentivoglio, consultant orthopaedic surgeon: T45 folio 111; Report by Dr Roth, consultant orthopaedic surgeon: T46 folio 119; see also, T13 folio 40.
(c)Mr Irwin is diabetic and the fractures were treated conservatively, without surgery.[5]
(d)He was provided with physiotherapy treatments[6] and returned to work on a graduated basis.[7]
(e)On 10 March 2009 Dr Davé reported that “[Mr Irwin] has reached maximal medical improvement”, his right “ankle is stiff and range of movement, dorsiflexion 5 degrees, plantar flexion 10 degrees, and subtalar joint has 5 degrees of movement varus and valgus. There is pain over the mid foot as well…”; the doctor recommended “a rocker bottom sole shoe”.[8]
(f)Mr Irwin was not able to return to his pre-injury duties as a driver, but he was able to work full hours in alternative duties, which were substantially office-based and involved the use of a computer.
(g)On 25 September 2009 Mr Irwin claimed compensation for permanent impairment.[9]
(h)In the claim form Dr Shnoudi, treating general practitioner, set out information concerning Mr Irwin’s fracture injuries and described a consequential “loss of joint movement and pain”, and he recorded impairments to “bodily functions” (“dorsiflexion about 30% of normal other movements nearly zero”) and described the extent of these impairments in the following way: “apart from lost normal range of movement and local pain patient gait is affected and is starting to feel strain over his back”.[10]
(i)Medico-legal reports were obtained from Dr Bentivoglio[11] (orthopaedic surgeon), Dr Roth[12] (consultant surgeon), and (subsequently) Dr Billett[13] (orthopaedic surgeon).
(j)On 21 December 2009 Mr Irwin’s legal representatives lodged a Non-economic Loss Questionnaire that was completed, in part, by Dr Bentivoglio.[14]
(k)On 20 January 2010 Border Express determined to reject Mr Irwin’s claim.[15]
(l)Mr Irwin sought a reconsideration of the determination,[16] and on 10 April 2010 Border Express decided to affirm the determination.[17]
[5] Reports by Dr Davé at T8 folio 29, T10 folio 35, T12 folio 39, T16 folio 44 and T19 folio 52.
[6] See T14 folio 41, T17 folio 45 and T31 folios 76-77.
[7] See T11, T18, T20, T22, T26, T30, T33, T35, T39 and T42.
[8] T38 folio 89.
[9] T44.
[10] T44 folios 104-105.
[11] T45 and T55.
[12] T46, T51 and Exhibit A.
[13] Exhibit B.
[14] T48.
[15] T52.
[16] T56.
[17] T59.
4. Mr Irwin asserts that the decision to reject his claim for permanent impairment compensation is wrong. He asserts that, consistent with his claim, the injury to his right foot and ankle results in two permanent impairments: loss of range of movement in his right ankle joints (the joint impairment) and impaired gait or loss of perambulatory function in his right leg.
5. In his submission, when the joint impairment is assessed under Tables 9.1 and 9.2 of the Guide to the Assessment of the Degree of Permanent Impairment (Second Edition) (the approved Guide) a manifestly inadequate result is obtained (a whole person impairment of 7 percent), in consequence of which either one should make a comparative assessment under Table 9.7 and prefer the higher result, or conclude that the assessment criteria in Tables 9.1 and 9.2 are ultra vires the SRC Act, being so deliberately and abjectly miserly that they unreasonably and unlawfully skew the assessment of the degree of permanent impairment to preclude payment of compensation.
6. Mr Irwin asserts that the second claimed impairment, concerning loss of perambulatory function, cannot be assessed properly under Tables 9.1 and 9.2, as those Tables simply address and set out criteria concerning loss of range of movement in certain joints. Mr Irwin urged us to accept that altered gait (a limp favouring his right foot and ankle), difficulties traversing distances of more than approximately 200 metres, difficulties negotiating slopes and steps, inability to squat or run, and other such functional impediments constitute an ‘impairment’ (as defined at section 4 of the SRC Act) to his perambulatory function.
7. He says that impairments of this kind, concerning perambulatory function or gait, must and can only be assessed under Table 9.7. In his submission, construing the approved Guide instructions in the manner contended for by Border Express is simply wrong. It is not necessary to strain the express terms of the approved Guide in order to discern the correct procedure to be followed. Nor is it lawful, in the face of apparent ambiguity, to adopt a narrow and preclusionary construction of the approved Guide in the context of a beneficial legislative compensation scheme for injured employees.
8. Furthermore, in Mr Irwin’s submission, his impairment in respect of perambulatory function, or gait, does not arise from restrictions of movement in the injured joints of his ankle. Relying on the evidence of Dr Bentivoglio and Dr Billett, consultant orthopaedic surgeons, he asserts that the impairment of his perambulatory function arises from malalignment of his right foot and vascular or neurological changes that are consequent upon the injury. These changes are said to include oedema in his right foot and lower leg resulting from inflammatory processes or reduced veinous return, and a complex region pain condition.
9. That being so, in Mr Irwin’s submission, there is no bar to assessment of his perambulatory function impairment under Table 9.7 of the approved Guide. He relies on the impairment assessment of Dr Bentivoglio (a whole person impairment of 20 percent) and urges us to set aside the decision under review.
10. Border Express does not agree. In its submission, the instructions to Table 9.7 and Part I of Chapter 9 in the approved Guide preclude assessment of an impairment under Table 9.7 if the impairment involves reduced range of motion in a joint. Border Express says that paragraph 5 on page 76 of the approved Guide is clear and directive in its terms, and it is binding. In Border Express’ submission an assessor must not use Table 9.7 unless the pre-conditions, including the pre-conditions in paragraph 5 on page 76, are satisfied.
11. Border Express asserts that Mr Irwin’s permanent impairment resulting from the injury to his right foot and ankle is the stiffness, or loss of range of movement, in his right foot and ankle joints. It is for this reason, applying paragraph 5 on page 76 and related instruction, Border Express says, that Mr Irwin’s permanent impairment cannot be assessed under Table 9.7 of the approved Guide.
12. Border Express asserts that the reconsideration decision is correct for the simple reason that when one follows the procedures of the SRC Act and the approved Guide in respect to Mr Irwin’s injury and claimed permanent impairment, the degree of the permanent impairment is below the 10 percent threshold that is necessary for payment of compensation. The reason for this, in Border Express’ submission, is that the claimed impairment or impairments must be assessed under Tables 9.1 and 9.2 of the approved Guide as they involve loss of range of movement in affected joints in Mr Irwin’s right ankle and foot. And under these Tables, on the assessments of Dr Roth, Dr Bentivoglio and Dr Billett, Mr Irwin’s permanent impairments are consistent with a whole person impairment of 7 percent.
13. With regard to the proposition that Mr Irwin’s compensation claim is in relation to two impairments – the first concerning loss of range of movement in his right ankle joints and the second concerning loss of functional mobility – Border Express asserts that if there are two impairments, which is disputed, both impairments are integrally related to loss of range of movement in the injured joints in Mr Irwin’s right foot and ankle and for this reason they cannot be assessed under Table 9.7 of the approved Guide, because to do so would be contrary to the instructions contained therein.
14. Border Express urged us to accept that Mr Irwin does not suffer from any significant interference with gait. In Border Express’ submission, if the injury has any effect on Mr Irwin’s gait, it is likely to be the product of pain arising from reduced range of movement and arthritis in the affected joints in his right foot and ankle.
15. With regard to the proposition that assessment of the degree of Mr Irwin’s impairments under Tables 9.1 and 9.2 produces an inadequate result, Border Express says that it, and presently the Tribunal, is bound to apply the approved Guide in its terms. It is simply not permissible to depart from the procedures, instructions and criteria that are contained in the approved Guide on a case by case basis: if application of the Guide produces an inadequate result in a particular case, that is simply an unfortunate consequence that cannot be redressed by simply departing from the lawful instructions, tables and criteria of the Guide as made by Comcare and approved by the Minister. Furthermore, in Border Express’ submission, issues concerning the lawfulness of particular instructions or terms or parts of the approved Guide are not matters that are before the Tribunal: these are matters for the legislature and the courts, but they are not matters for a merits review tribunal.
16. With regard to issues of construction, Border Express asserts that there is no ambiguity in the terms of the approved Guide that are in issue in these proceedings and, on that basis, there is no cause to consider or prefer a construction that may be beneficial to Mr Irwin even though the scheme of the SRC Act is remedial in nature.
17. That being so, in sum, Border Express says that the reconsideration decision should be affirmed.
18. Considering these matters, one must first consider the relevant sections of the SRC Act. The words ‘Where an injury to an employee results in a permanent impairment’[18] impose a causal nexus that essentially preconditions any liability against Comcare, or in this case Border Express, to pay compensation under section 24. Other essential preconditioning factors must also be satisfied: whether the impairment is permanent[19], and whether the degree of permanent impairment is 10 percent or more[20].
[18] Section 24(1), Safety, Rehabilitation and Compensation Act 1988.
[19] Section 24(2), Safety, Rehabilitation and Compensation Act 1988.
[20] Section 24(7), Safety, Rehabilitation and Compensation Act 1988.
19. Plainly enough, the dispute in this case is sharply focussed on this latter point and the terms and tables of the approved Guide. But that is not the starting place for consideration of the claim for permanent impairment compensation. One must first determine whether the injury resulted in permanent impairment.
20. We note in passing that compensation under section 24 is payable in respect of the injury and not in respect of any particular impairment.[21]
[21] Canute v Comcare [2006] HCA 47 at [10]; Fellowes v Military Rehabilitation and Compensation Commission [2009] HCA 38 at [14].
injury
21. It is clear enough on the evidence of Dr Davé, Dr Bentivoglio, Dr Roth and Dr Billett that Mr Irwin suffered multiple fractures in his right foot and ankle (see paragraph 3(b) above). Each fracture may constitute a separate and discrete ‘injury’ for the purposes of the SRC Act[22]. Nevertheless, the fractured bones are components of the intra-articular structures and mechanisms of Mr Irwin’s right foot, ankle and lower leg. While it may be technically correct to consider each fracture as a separate injury, practically and in so far as Mr Irwin is concerned the fractures are components of an injury to his right foot and ankle.
[22] See section 5A, Safety, Rehabilitation and Compensation Act 1988; Canute v Comcare [2006] HCA 47 at [10].
impairment
22. We are reasonably satisfied that these injuries have resulted in a reduction of the normal range of movement in three joints in Mr Irwin’s right foot and ankle – the ankle joint (with reduced flexion and extension)[23], the sub-talar joint (with reduced inversion and eversion)[24] and the mid-tarsal joint (with reduced range of movement)[25]. Additionally, the injuries have resulted in malalignment of the right foot (lateral displacement)[26]. To our mind, these results of injury are impairments. That is so even though the malalignment of Mr Irwin’s right foot may be corrected to some extent when he wears certain shoes.
[23] Dr Bentivoglio: T45 folio 110; Dr Roth: T46 folio 119; Dr Billett: Exhibit B, p4.
[24] Dr Bentivoglio: T45 folio 110; Dr Roth: T46 folio 119; Dr Billett: Exhibit B, p4.
[25] Dr Roth: T51 folio 135; Dr Bentivoglio: T45 folios 110-111; Transcript, 28 February 2011, pp 71-72.
[26] Dr Bentivoglio: T45 folio 110; Dr Billett, Exhibit B, p3.
23. For the purposes of the SRC Act, ‘impairment’ means “the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function” and ‘permanent’ means “likely to continue indefinitely”[27]. While some precision is required to properly identify impairment within the defined meaning, and this may be assisted by detailed medical evidence, a formal medical diagnosis is not an essential prerequisite. As can be seen, the definition of ‘impairment’ is cast in terms of “effects on bodily parts, systems and functions”[28]; this disaggregated approach to the concept of impairment assumes that one injury may give rise to more than one impairment.
[27] Section 4(1), Safety, Rehabilitation and Compensation Act 1988.
[28] Canute v Comcare [2006] HCA 47 at [11].
24. During the hearing much was said about Mr Irwin’s reduced mobility and issues concerning his gait. Mr Irwin’s evidence concerning his reduced mobility is reasonably consistent with the histories recorded by Dr Bentivoglio, Dr Roth and Dr Billett – he has difficulty walking distances greater than approximately 200 metres without a rest, he avoids climbing, he cannot run, he uses a hand rail when negotiating stairs one step at a time, he has difficulty standing for periods of more than 10 to 15 minutes, and in order to rise from a chair he pushes himself up with his hands[29]. We accept this evidence.
[29] Dr Bentivoglio: T45 folio 108-110; Dr Roth: T46 folios 118-119; Dr Billett: Exhibit B, pp 2-3.
25. With regard to Mr Irwin’s submission that his reduced ambulatory mobility constitutes an impairment for the purposes of the SRC Act, we do not agree. As we have said, impairment is defined in disaggregated terms with reference to bodily parts, systems and functions. In Fellowes v Military Rehabilitation and Compensation Commission[30] the majority observed that “It may be doubted that the function of using the lower limbs is properly described as a bodily function”[31]. To our mind, it is necessary to distinguish the loss, loss of the use of, damage or malfunction of a bodily part, system or function, constituting impairment, from the extent of any limitation of activity employing or utilising the impaired part, system or function in practice. The extent or limit of utility or capability in practice indicates the degree of impairment[32]. Thus, the extent or limit of Mr Irwin’s capability to undertake activity with his right leg, in respect of ambulation for example, is of direct relevance to the assessment of the degree of the particular impairments in that limb. Under the Guide, the degree of impairment is determined by assessing the extent of functional loss with reference to normal efficient functioning[33] by applying the relevant tables. To be clear, Mr Irwin’s difficulty walking more than 250 metres, for example, is a functional limit on activity that indicates the degree of his impairment. In order to identify impairment, one must look to the damaged or malfunctioning bodily parts, systems or functions.
[30] [2009] HCA 38.
[31] [2009] HCA 38, per Hayne, Heydon, Crennan and Bell JJ at [28];
[32] [2009] HCA 38, per Hayne, Heydon, Crennan and Bell JJ at [24]; per Kiefel J at [43];
[33] Guide to the Assessment of the Degree of Permanent Impairment (2nd Edition), Principle 1, p11.
26. It should be noted, in passing, that one does not identify an impairment by reference to the approved Guide; the Guide is only relevant to the assessment of the degree of permanent impairment. Thus, before consulting the approved Guide, one must look to the cause of the functional limit complained of, in terms of damaged or malfunctioning bodily parts, systems or functions, in order to determine the presence of an ‘impairment’. Once that has been done and issues of permanence have been addressed, one must go to the approved Guide to determine the degree of permanent impairment.
27. Mr Irwin asserts that his altered gait is an impairment. We do not agree. There is evidence that Mr Irwin walks with an altered gait or limp, favouring his right foot and ankle[34], but his limp may be reduced if he wears shoes[35]. This is supported by evidence of muscle wasting in Mr Irwin’s right leg, above and below the right knee[36]. To our mind, this is consistent with him favouring his right leg. On the evidence of Dr Bentivoglio, Mr Irwin’s altered gait is the result of stiffness and arthritis in the damaged right foot and ankle joints, malalignment of the right foot, pain and swelling in his right foot, ankle and lower leg (especially relating to weight-bearing use). The evidence of Dr Roth and Dr Billett is largely consistent with this assessment. We accept Dr Bentivoglio’s uncontroverted evidence on these points. That being so, we are not persuaded that Mr Irwin’s altered gait is an impairment for present purposes, but the damaged or malfunctioning bodily parts, systems or functions that cause his altered gait may well be impairments. As it appears to us Mr Irwin’s limp is indicative of impairment but it is not, of itself, an impairment.
[34] Dr Bentivoglio: T45 folio 110; Dr Roth: T46 folio 119; Dr Billett: Exhibit B, p3.
[35] Dr Billett, Exhibit B, p3.
[36] Dr Roth: T46, folios 118 and 119; Dr Billett: Exhibit B, p3.
28. Mr Irwin gave evidence (which was not challenged) concerning the specific location of pain he experiences when undertaking activity – pain across the right mid-foot, especially on the sides, pain in the bottom of the right foot up through to the ankle, and pain that extends up into the right mid-calf. The specific cause of these pain symptoms is less clear; in all likelihood they are multi-factorial in origin. As it appears to us, and doing the best with the available evidence (noting in particular the oral evidence of Dr Bentivoglio and Dr Billett), the right foot, ankle and lower leg pain of which Mr Irwin complains is likely to result in some degree from stiffness and arthritis in the injured joints, from weight-bearing on his right leg, and from swelling, which itself may result from inflammatory processes or reduced veinous return in the right lower leg. To our mind, Mr Irwin’s pain is not, itself, an impairment for present purposes, but it is the product of damaged or malfunctioning bodily parts, systems or functions, or disease processes in those affected parts. The damaged or malfunctioning bodily parts, systems or functions that give rise to his pain symptoms may well be impairments.
29. Dr Bentivoglio gave evidence that Mr Irwin’s right foot pain was also the result of minor neurological damage as a result of the injuries Mr Irwin suffered and “a burnt out complex regional pain condition”,[37] but the doctor is alone in that regard. We simply note that it is possible that Dr Bentivoglio is right, but the present evidence is not sufficient to establish any such conclusion on the balance of probabilities.
[37] Transcript, 28 February 2011, p 75.
30. On the evidence of Dr Bentivoglio it appears that Mr Irwin may suffer from reduced weight-bearing capacity in his right leg. As we have said, we accept that weight-bearing with the right leg while ambulating or standing for long periods may cause Mr Irwin to experience symptoms of pain and swelling, and it may affect his gait. But is this an impairment for present purposes? The precise mechanism or cause of Mr Irwin’s right leg symptoms that are related to weight-bearing is not clear. It is possible that there is some form of structural or functional impairment that underlies this symptomatology, but this is not established on the present evidence. For reasons that will appear, it is not necessary for us to go further on this point – this point, alone, is not determinative.
31. On the evidence of Dr Bentivoglio, it is possible that Mr Irwin may also suffer from impaired vascular and neurological systems in his right lower leg, ankle and foot, but this is not established by the present evidence. We note in passing that oedema (swelling) is not likely to constitute an impairment, but if the swelling is the result of altered vascular or mechanical structures or systems, then those altered structures or systems may well be consistent with impairment for the purposes of the SRC Act. But we will not proceed further with this point as it, too, is not determinative.
32. In sum on this point, therefore, we find that Mr Irwin has the following impairments:
(a)reduced range of movement in the ankle, sub-talar and mid-tarsal joints; and
(b)malalignment of the right foot.
33. Having regard to the matters set out in section 24(2), we are reasonably satisfied that each of these impairments is permanent for present purposes. Even though the malalignment of Mr Irwin’s right foot may be associated, causally, with loss of range of motion in joints in his ankle and foot and it may be corrected to some degree if he wears certain shoes, the damage that results in the lateral displacement of that part of his body is on-going, and it is therefore ‘permanent’.
degree of permanent impairment
34. The next step is to determine the degree of permanent impairment under the approved Guide.
35. As Mr Irwin’s injuries and his resulting impairments are in his right leg, specifically affecting his right foot and ankle, Part I of Chapter 9 of the approved Guide applies. The Introduction to Chapter 9 on page 74 of the approved Guide requires an assessor to have regard to the Principles of Assessment.
36. The Principles of Assessment are set out at pages 11 to 14 of the Guide. As can be seen, the Principles contemplate the possibility that more than one table may be applicable, in which case “Unless there are instructions to the contrary, where two or more tables (or combinations of tables) are equally applicable to an impairment, the decision-maker must assess the degree of the permanent impairment under the table or tables which yield or yields the most favourable result to the employee”[38]. It is no surprise that the principle of comparative assessment can be discerned in many parts of the approved Guide. Furthermore, an injury may give rise to more than one impairment, in which case “separate scores should be allocated to each functional impairment” and “those scores are then combined using the Combined Values Chart unless the notes in the relevant section specifically stipulate that the scores are to be added”[39]. In the event that an impairment is of a kind that cannot be assessed in accordance with Part 1 of the approved Guide, the assessment is to be made under the 5th Edition of the American Medical Association’s Guide to the Evaluation of Permanent Impairment (the AMA Guide)[40].
[38] Guide to the Assessment of the Degree of Permanent Impairment (2nd Edition), Principle 8, p13.
[39] Guide to the Assessment of the Degree of Permanent Impairment (2nd Edition), Principle 9, p13.
[40] Guide to the Assessment of the Degree of Permanent Impairment (2nd Edition), Principle 12, p14; Comcare v Broadhurst [2011] FCAFC 39 at [16] and [73].
37. The Introduction to Chapter 9 also sets out “Tables of normal ranges of motion of joints” in Figure 9-B.
38. As can be seen, Table 9.1 concerns the “Hindfoot/Ankle (subtalar)” joint with normal range of motion from 20º eversion to 30º inversion. The preamble to this Table on page 77 states that it “assesses impairments to range of motion of the feet and toes, including ankylosis of one or more joints”. The Table relevantly sets out degrees of inversion and eversion of the sub-talar joint and degrees of ankylosis of the hindfoot.
39. Although the mid-tarsal joint is in the hindfoot and ankle region, to which Table 9.1 purportedly applies, the Table does not refer to the normal range of movement of the mid-tarsal joint. There does not appear to be a table that applies to the mid-tarsal joint specifically and explicitly.
40. Under Figure 9-B, Table 9.2 concerns the “Ankle (talocrural)” joint with normal range of motion from 20º extension to 40º flexion. The preamble to Table 9.2 states that it “assesses impairments to range of motion and deformity of the ankle, as well as ankylosis”. It is no surprise to find that the Table sets out degrees of plantar flexion, dorsi-flexion, varus and valgus angulation, and ankylosis.
41. Table 9.7 is not included in Figure 9-B. This Table concerns “Lower Extremity Function” and sets out major and minor criteria for the assessment of lower extremity functional impairments. The preamble to this Table contains a number of instructions to which we will return.
42. Mr Irwin says that his impairments are not able to be assessed or are not adequately assessed under Tables 9.1 and 9.2, and should be assessed under Table 9.7.
43. Border Express asserts that this is not permissible as to do so would be contrary to the clear instructions that are set out at pages 76 and 84 of the approved Guide. In Border Express’ submission, the Introduction to Part I of Chapter 9 raises a bar to the assessment of lower extremity impairments under Table 9.7 if the normal range of motion of a joint is impaired. Border Express says that the notes to Table 9.7 on page 84 require that “Before using Table 9.7 the medical assessor should check the instructions (see Part I – Introduction, page 76) preceding the specific joint impairment tables (Tables 9.1-9.4) and use Table 9.7 strictly in accordance with those instructions”. The Part I Instructions on page 76 state in paragraph 5 “If the medical assessor feels that the impairment is not adequately assessed using one of Tables 9.1, 9.2, 9.3 and 9.4, and the condition does not cause a reduction in the range of motion of a joint but there is significant interference with gait, the medical assessor should consider the effect of the injury on gait and determine the WPI rating using Table 9.7”. Border Express asserts that these two instructions, read together, preclude use of Table 9.7 for the assessment of an impairment in which range of motion in a joint is reduced.
44. We do not agree.
45. These submissions raise issues that bear remarkable similarities to those addressed in Whittaker v Comcare[41] in respect of Tables 9.2 and 9.5 of the 1st Edition of the Guide to the Assessment of the Degree of Permanent Impairment. In that case the Full Court reviewed relevant authorities and rejected the proposition that Table 9.2 was the only Table under which lower joint injury impairment could be assessed. The Court decided that the function-based Table 9.5 could be used for that purpose and, in cases where both Tables are applicable, the Table which yields the most favourable result for an employee must be selected[42]. Of course, the present issue rises in respect of the 2nd Edition of the approved Guide, and is cast in reference to the specific provisions and terms used in that document. Nevertheless, the principles of interpretation identified in Whittaker and confirmed in Comcare v Fiedler[43] and Page v Telstra Corporation Ltd[44] are equally applicable when construing ambiguous provisions of the 2nd Edition of the approved Guide.
[41] (1998) 86 FCR 532.
[42] Whittaker v Comcare (1998) 86 FCR 532 at 544-545.
[43] (2001) 34 AAR 237 at 242-244.
[44] [2004] FCAFC 80 at [42].
46. Having regard to the 2nd Edition of the approved Guide, Mr Irwin’s sub-talar joint impairment is assessable under Table 9.1. His ankle joint impairment is assessable under Table 9.2. His mid-tarsal joint impairment and his right foot malalignment impairment are not assessable under these Tables because no relevant provision is made in the form of applicable assessment criteria. Applying the instruction in paragraph 4 of the introduction to Part I of Chapter 9, to the extent that these impairments cannot be assessed under Tables 9.1 or 9.2, they are to be assessed under the AMA Guide. The impairments, however, are not assessable under the 5th Edition of the AMA Guide as no relevant provisions can be applied – there are simply no provisions concerning the mid-tarsal joint impairment and the right foot malalignment is not sufficiently documented to permit assessment under Chapter 17 concerning the lower extremities.
47. In Border Express’ submission the mid-tarsal joint and right foot malalignment impairments cannot be assessed under Table 9.7 because these involve reduced motion in a joint. This is a difficult submission because, if it is accepted, the degree of these impairments would not be assessable under the approved Guide. The approved Guide and the SRC Act do not provide guidance about what should be done in such circumstances. To our mind, consistent with sections 24 and 28 of the SRC Act and the purposes of the approved Guide, when two constructions lie open, one should not too readily accept a construction that would exclude an assessment of the degree of a particular impairment if the alternative construction would permit such an assessment to be made in accordance with the provisions of the approved Guide. Thus, as will appear, the construction of paragraph 5 of the introduction to Part I of Chapter 9 for which Border Express contends is not preferred.
48. We are reasonably satisfied that there is no bar to prevent application of the comparative assessment methodology set out in Principle 8 and the instructions concerning Table 9.7 when assessing the degree of Mr Irwin’s lower limb impairments.
49. The instruction on page 84 concerning the use of Table 9.7 is directive: the Table is to be used “strictly in accordance with” preceding instructions on page 76 and in relation to Tables 9.1 to 9.4. As can be seen, paragraph 5 on page 76 is also directive: “the medical assessor should consider the effect of the injury on gait and determine the WPI rating using Table 9.7” if the three preconditioning factors are established. The instruction is clear enough in its terms. The construction for which Border Express contends, that one may only make an assessment under Table 9.7 if there is no reduction of motion in a joint, is not expressed in the paragraphs as written. In order to achieve that result one would need to construe the paragraph as a contrary instruction or an exclusionary proviso by reading into it words and meanings that are not expressly there.
50. To our mind one should not read words and meanings into these provisions without clear necessity[45] or without an obvious implication to do so having regard to “their purpose and context and other traces of the convenient phantom of legislative intention”[46]. There is no such clear necessity or obvious implication when one examines the context in which the controversial paragraph appears in the approved Guide, or when one considers objects and purposes of the legislative scheme provided by the SRC Act of which the approved Guide is an important part.
[45] Dallikavak v Minister of State for Immigration and Ethnic Affairs (1985) 9 FCR 98 at 101; Thompson v Goold & Co [1910] AC 409 at 420.
[46] Sloane v Minister for Immigration, Local Government and Multicultural Affairs (1992) 37 FCR 429 at 443.
51. Border Express did not point to any cogent or compelling reason, contextually, historically or in terms of legislative intention, why the paragraph should not be construed literally or why an impairment in which the range of motion in a joint is reduced should be barred from assessment under Table 9.7 so long as the applicable instructions are adhered to. Having carefully scrutinised the approved Guide and its antecedents (the 1st Edition of the Guide and the 5th Edition of the AMA Guide), and the SRC Act, we have found no such reason or implication.
52. Nevertheless, in order to properly address the extensive submissions of the parties, it is necessary to examine the provisions of the approved Guide and the legislative scheme in some detail.
the legislative scheme
53. The SRC Act provides a scheme for the rehabilitation and compensation of injured employees. The scheme includes provision of compensation for injuries that result in permanent impairment. Calculating the amount of such compensation requires an assessment of the degree of permanent impairment under the approved Guide. Section 28 of the SRC Act provides that the approved Guide is a document that is prepared by Comcare and approved by the Minister. The approved Guide may set out criteria and methods for the assessment of the degree of permanent impairment and non-economic loss resulting from an injury. The degree of permanent impairment is to be expressed as a percentage. The percentage of permanent impairment resulting from an injury may be zero and, other than a hearing loss, if the degree of impairment is less than 10 percent no compensation is payable. The approved Guide is in 2 parts; Part 1 is presently relevant. This Part sets out over-arching Principles of Assessment and contains 3 Divisions, the first of which contains 13 Chapters concerning various bodily parts and systems. Chapter 9 concerns the Musculoskeletal System, and is presently relevant.
54. Section 28(1) of the SRC Act indubitably authorises Comcare to set out methodologies and criteria in the approved Guide that may require the degree of an impairment involving reduced range of motion in a joint and other factors to be assessed under a specific table or tables. If the approved Guide directs a particular kind of impairment to be assessed under a specific table or tables, then those tables should contain criteria that are sufficient to permit the assessment to be made. To do otherwise may mean that the degree of an impairment is not able to be assessed for the purposes of the Act under the specified table, in which case the assessment should be made, pursuant to Principle 12, under the AMA Guide, or under any other applicable table.
55. The approved Guide is a legislative instrument[47]. Section 13 of the Legislative Instruments Act 2003 (the Legislative Instruments Act) provides that, unless the contrary intention appears, the Acts Interpretation Act 1901 (the Interpretation Act) applies to a legislative instrument and the instrument is to be read and construed subject to the enabling legislation. The provisions of the approved Guide have legal force subject only to issues of power, invalidity and severability, and one must strive to uphold the validity of the approved Guide and to construe it as within power if at all possible[48].
[47] Section 28(3A), Safety, Rehabilitation and Compensation Act 1988.
[48] Comcare v Broadhurst [2011] FCAFC 39 at [71]-[72],
56. The provisions of the approved Guide are binding and the assessment of the degree of an impairment is to be made under the relevant provisions. One must apply the methodologies and assessment criteria in accordance with applicable instructions, subject to any contrary intentions.
contrary intention
57. A contrary intention of the kind expressed in section 13 of the Legislative Instruments Act need not necessarily arise in a single express provision and may be ascertained from the legislative context[49]. Nevertheless, for the purposes of section 13(1) of that Act, we have found no express or implied contrary intention in the SRC Act in respect of the approved Guide. The approved Guide must be read and construed subject to the SRC Act.
[49] Comcare v Broadhurst [2011] FCAFC 39 at [67].
58. As we have said, Part 1 of the approved Guide sets out Principles of Assessment. Assessment Principle 8 is very clear: “Unless there are instructions to the contrary, where two or more tables (or combinations of tables) are equally applicable to an impairment, the decision-maker must assess the degree of permanent impairment under the table or tables which yields or yield the most favourable result to an employee”. In terms, this Principle must apply unless there are instructions to the contrary. This imposes a requirement of some particularity. One cannot simply assume a contrary instruction exists without some firm basis in the text on the page or contextually, having regard to the various provisions of the approved Guide and to its purposes and the purposes of the SRC Act. To our mind, that is especially so if the contrary instruction that is to be inferred is privative or exclusionary.
59. We are not persuaded that paragraph 5 of the introduction to Part I of Chapter 9 conveys a contrary instruction in respect to Principle 8. The words of the paragraph are very clear and, grammatically, no contrary intention arises. There is nothing in the associated paragraphs of the introduction to Part I of Chapter 9 that implies an instruction to the contrary for the purposes of Assessment Principle 8. And there is no firm basis on which to raise such a contrary instruction in any other provisions of the approved Guide or the SRC Act.
60. The instructions concerning Part I of Chapter 9 on page 76 clearly state (in paragraph 3) that an impairment assessment under Table 9.1, 9.2, 9.3 or 9.4 must not be combined with an impairment assessment under Table 9.7 “if they assess the same condition in the lower extremity”. Despite the confusing use of the word ”condition”, it is tolerably clear that this instruction contemplates the assessment of an impairment under Tables 9.1 to 9.4 or under Table 9.7. If one adopts the construction contended for by Border Express this result would be precluded unless the pre-conditioning factors in paragraph 5 on page 76 are satisfied. We note in passing that no such bar was raised under the predecessor of the approved Guide – the 1st Edition approved Guide. The 1st Edition clearly permitted an assessment under “either the musculo-skeletal table or Table 9.4 or 9.5 should be used – not both” (Table 9.5 in the 1st edition approved Guide was replaced by Table 9.7 in the current edition of the Guide). Even though different forms of words have been used, this conception is broadly consistent with paragraph 3 of the introduction to Part I of Chapter 9 in the current edition.
61. Paragraph 4 of the Introduction on page 76 provides that if an impairment cannot be assessed under Tables 9.1, 9.2, 9.3 or 9.4, an assessment may be made under the AMA Guide. This option is not provided, however, in relation to Table 9.7. As it appears to us, this too is consistent with the comparative assessment methodology and the Principles to which we have referred: an assessment is to be made under Tables 9.1, 9.2, 9.3 or 9.4 or, if that cannot be done, under the AMA Guide (Principle 12), and then, subject to Principle 8 and any contrary intention, an assessment may be made under Table 9.7 for comparative purposes and the higher impairment rating chosen. We note that this construction is consistent with the methodology expressed in the AMA Guide on which Part 1, Division 1 of the approved Guide is based (Assessment Principle 5).
62. Consistent with this methodology and the Assessment Principles, the instructions to Table 9.7 clearly contemplate a comparative assessment procedure that is inclusive of Tables 9.1, 9.2, 9.3 or 9.4 and Table 9.7: “Where only one limb is affected, regardless of the number of impairments found in that limb, the limb should be assessed using the relevant Tables other than Table 9(7) and all impairments combined using the Combined Values Table. The combined impairment rating should then be compared to the rating taken from the relevant row in Table 9(7) and the higher rating obtained from the two methods chosen”. As can be seen, this paragraph is clear and directive in its terms. This is consistent with the instructions on page 76 if one applies paragraph 5 strictly in its terms. But that result is not obtained if one applies the construction for which Border Express contends.
63. We note in passing that Assessment Principle 9 contains an example of the assessment procedure in respect of a knee impairment that clearly contemplates an assessment being made under Table 9.3 and an alternative assessment being made under Table 9.7, with the resulting assessments then being compared to identify the most beneficial to the employee[51]. This is consistent with Principle 8. Even though aspects of the example in Principle 9 are not good in law[52], the example clearly demonstrates the intention of the drafters of the Guide as approved to adopt, subject to Principle 8, a comparative assessment methodology in respect to Tables 9.1, 9.2, 9.3 or 9.4 and Table 9.7.
[51] Guide to the Assessment of the Degree of Permanent Impairment (2nd Edition), Principle 9, p13.
[52] Fellowes v Military Rehabilitation and Compensation Commission [2009] HCA 38 at [25].
64. The instructions to Table 9.7 on page 84 set out methodologies in respect of various tables or kinds of impairment, concerning Table 9.6 and spinal cord damage for example. But these are not relevant to the assessment methodology that is to be applied in respect of lower limb joint impairments. The requirement that Table 9.7 is to be used strictly in accordance with the instructions on page 76 and in respect of Tables 9.1 to 9.4 ensures a synchronous approach to the methodologies set out therein. The explicit references to Tables 9.1 to 9.4 are to this point. Taken together, these instructions do not expressly or impliedly preclude assessment of an impairment involving reduced motion in a joint under Table 9.7 so long as that assessment accords strictly with other relevant instructions.
65. To our mind, paragraph 5 on page 76, in its terms and in reference to Principle 8, is not an instruction to the contrary. Thus, the methodology that appears from the various instructions concerning lower limb joint impairment is that, first, the impairment must be assessed under Tables 9.1 to 9.4 (subject to particular joint involvement); next, the resulting assessments are to be combined under the Combined Values Chart in Appendix 1 of Part 1 of the approved Guide; and finally, an assessment is to be made under Table 9.7 and the resulting assessment is to be compared with that derived from Tables 9.1 to 9.4, and the highest assessment chosen.
66. Border Express asserts that the comparative assessment methodology that is provided for by Principle 8 and various instructions throughout the Guide, including those to which we have referred in Chapter 9, should not apply in respect of all lower limb impairments that involve reduction in the range of motion of a joint. In effect, this would require application of paragraph 5 of the introduction to Part I of Chapter 9 as an exclusionary proviso.
exclusionary proviso
67. Border Express did not set out any reason why the plain words of paragraph 5 in the introduction to Part I of Chapter 9 should be construed as an exclusionary proviso to the instructions concerning Table 9.7, with a broad effect. This, it was said, is simply a policy matter for Comcare when drafting the approved Guide. But this is not what Comcare did. Had the drafters of the Guide intended to direct an assessor to assess the degree of impairment of a joint under Tables 9.1, 9.2, 9.3 or 9.4 only and not under Table 9.7, it would have been a matter of abundant simplicity and clarity to state it. No such preclusionary intention is stated. Nor can any such intention be inferred grammatically, contextually or on any other reasonable grounds. Thus, to the extent that the paragraph is provisory, it appears probable that it is declaratory rather than exclusionary – the paragraph simply declares the intention of the drafters to require assessment under Table 9.7 in certain circumstances.
68. Furthermore, the positively expressed instruction is confined by specific pre-conditioning factors, which in our view have very narrow scope when considered contextually. Applying these specific pre-conditioning factors more broadly with exclusionary intent would impose, in effect, an unius est exclusion alterius construction (an express reference to one matter indicates that other matters are excluded). But as the High Court said in Houssein v Under Secretary, Department of Industrial Relations and Technology and Industrial Commission of NSW[53], the “maxim must always be applied with care, for it is not of universal application and applies only when the intention it expresses is discoverable upon the face of the instrument”. As we have said, we can discern no express or implied intention to bar all lower limb impairments in which there is a reduction of motion in a joint, however small, from assessment under Table 9.7. For the paragraph to have such an exclusionary effect one would need to introduce words for that purpose. As has been said, correctly, such matters are for Comcare and the Minister under section 28 of the SRC Act. This is not a case in which a clear gap in the provisions has been identified, or where it is necessary to ignore or read down a provision of the approved Guide.
[53] (1982) 38 ALR 577 at 581.
69. Construing paragraph 5 on page 76 of the approved Guide in such an exclusionary manner is not consistent with the overall matrix of assessment principles, instructions, methodologies and criteria that are set out in the approved Guide. It is not consistent with the specific provisions concerning the application of the Tables in Part I of Chapter 9 and it is not consistent with the specific instructions on page 84 concerning comparative assessments under Tables 9.1, 9.2, 9.3 or 9.4 and Table 9.7. Nor is it consistent with the comparable instructions in the introduction to Part II of Chapter 9, concerning the upper limbs.
70. We note in passing that the introduction to Part II of Chapter 9 contains an instruction of a similar character concerning the eventuality of an inadequate assessment using Tables 9.9, 9.10 and 9.11 in respect of the upper limbs. This instruction confers discretion to make an assessment under Table 9.14, concerning Upper Extremity Function[54]. But the discretion is not pre-conditioned by reference to reduction in the range of motion of a joint. If one accepts the approach for which Border Express contends, one would not be permitted to assess the degree of a lower limb impairment under the Lower Extremity Function Table 9.7 if there was reduction of motion in a joint, whereas there is no similar bar in relation to an upper limb impairment in respect of the Upper Extremity Function Table 9.14. Inconsistency of operation is a relevant matter to consider when deciding issues of construction.
[54] Part II, Chapter 9, page 86, paragraph 3.
inconsistency of operation
71. The construction for which Border Express contends would be productive of inconsistent results. Consider the example of two injured workers. Worker A has a permanent impairment in the form of malalignment resulting from a tibial shaft fracture injury that does not involve any reduction in the range of motion of a joint but causes functional difficulties that are sufficient to satisfy the major and minor criteria at the 20 percent level under Table 9.7. There is no difficulty with that assessment: Tables 9.1 to 9.4 do not apply and a WPI rating of 20 percent under Table 9.7 would result without controversy. Consequently, section 24(7) of the SRC Act would be satisfied and worker A would be entitled to compensation for permanent impairment and non-economic loss. Worker B also has a permanent impairment as a result of a tibial shaft fracture injury that causes functional difficulties that are sufficient to satisfy the major and minor criteria at the 20 percent level under Table 9.7. But worker B’s permanent impairment involves a slight reduction of the range of motion in his ankle – plantar flexion is restricted to 10º and dorsiflexion is restricted to less than 10º. Under the construction contended for by Border Express, the degree of worker B’s impairment is to be assessed under Table 9.2 and not Table 9.7, producing a WPI assessment of 6 percent. In consequence, worker B does not satisfy the 10 percent threshold imposed by section 24(7) and would be denied compensation for permanent impairment and non-economic loss. The inconsistent result is plain to see. Whereas if paragraph 5 on page 76 is simply applied in its terms, there is no bar to worker B’s impairment also being assessed under Table 9.7 in strict accordance with the preceding instructions and the higher assessment chosen (as provided for by Principle 8 and paragraph 7 on page 84). Under this construction no inconsistency would arise.
72. Furthermore, it is a well-established principle of construction that if two competing interpretations arise, that which is productive of a fairer and more convenient operation, consistent with the legislative scheme, is likely to be preferred over an interpretation that is productive of harsh, unfair or inconsistent results that do not sit well or easily within the legislative scheme[55]. The construction for which Border Express contends conforms to the latter and not the former, which in our mind, being open on the plain language of the relevant parts of the approved Guide, is to be preferred.
[55] Martin v Australian Postal Corporation [1999] FCA 655 at [30]; Whittaker v Comcare (1998) 86 FCR 532 at 544-545; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 35 ALR 151 at 170.
ambiguity
73. Border Express asserts that the purpose and effect of the controversial fifth paragraph on page 76 is unambiguous – assessment of the degree of an impairment involving reduced range of motion in a joint is not permitted under Table 9.7 unless the three pre-conditioning factors are satisfied. We do not agree.
74. In order to resolve issues of construction one must give close attention to the plain words of relevant provisions and construe these in a manner that supports and is consistent with the objects and purposes of the approved Guide and the SRC Act[56].
[56] Shi v Migration Agents Registration Authority [2008] HCA 31 at [92].
75. The words of the paragraph are tolerably clear in their terms, as we have said. Contextually there are some difficulties, however.
76. Firstly, the paragraph appears to contemplate an assessor using Tables 9.1 to 9.4 to assess the degree of an impairment that does not cause a reduction in the range of motion of a joint, the second pre-conditioning factor. It is very far from clear how these Tables are to apply in those circumstances. The introductory notes to Tables 9.1 to 9.4 clearly and expressly state that these Tables assess impairments to range of motion, including deformity and ankylosis, in the relevant regions and joints. This is confirmed by Figure 9-B on page 75. The specific assessment criteria set out in the Tables are specific and are cast in terms of degrees of movement, ankylosis, angulation and deformity in a joint (each of which involves or is likely to involve reduced motion in the affected joint). Clearly enough one cannot assess an impairment that does not involve reduced range of motion in a joint by application of these criteria. How one is to resolve this difficulty under the construction contended for by Border Express is not clear.
77. Secondly, less controversially, the paragraph appears to contemplate an assessor using Tables 9.1 to 9.4 to assess the degree of an impairment that may involve a reduction in the range of motion of a joint as well as other factors. As we have said, Tables 9.1 to 9.4 expressly assess impairments to range of motion, including deformity and ankylosis. The criteria set out in the Tables are solely directed to impairments of that kind. How factors other than those affecting range of motion in a joint (including ankylosis, angulation and deformity) are to be assessed under Tables 9.1 to 9.4 is not clear. Perhaps, as Border Express asserts, it was the intention of the drafters of the Guide to exclude such factors from assessment. But that approach, if correct, does not sit easily or well with the over-arching principles on which the assessment methodologies in the approved Guide are purportedly based.
78. It should be noted that Principle 1 on page 11 of the approved Guide states that “The degree of impairment is assessed by reference to the impact of that loss on the normal efficient functioning of the whole person”. While the reference to the ‘whole person’ must be treated with some caution in the light of what has been said in Canute[57] and Fellowes[58], it is tolerably clear that the over-arching methodology for assessing the degree of permanent impairment under the approved Guide is function-based – “by reference to the functional capacities of a normal healthy person”[59]. The literal construction of the controversial instructions on pages 76 and 84 and the comparative assessment methodologies to which we have referred are consistent with this approach. The construction contended for by Border Express would have the result that assessment of the degree of impairments involving reduced range of motion in a joint and other factors, such as altered gait, would be confined to range of motion deficits only, without reference to other relevant functional capabilities of the whole person. But that is not what the provisions of the approved Guide express and it is not consistent with any discernable intentions of the drafters of the approved Guide or the overall purposes of the Guide and the SRC Act. The Guide should not be allowed to limit the general legislative purposes of the SRC Act[60].
[57] Canute v Comcare [2006] HCA 47 at [13] and [14].
[58] Fellowes v Military Rehabilitation and Compensation Commission [2009] HCA 38 at [19] to [26].
[59] Fellowes v Military Rehabilitation and Compensation Commission [2009] HCA 38 at [24].
[60] Whittaker v Comcare (1998) 86 FCR 532 at 545.
79. Clearly there are some difficulties construing these parts of the approved Guide: there is apparent ambiguity and a number of constructions lie open. The instructions to Table 9.7 on page 84 simply serve to highlight the ambiguity. For example, the instruction in paragraph 6 on page 84 clearly refers to Tables 9.1, 9.2, 9.3 and 9.4 as ‘specific joint impairment tables’ but paragraph 5 of the instructions on page 76, which is to be strictly applied, appears to suggest that these Tables are applicable where there is no reduction in the range of motion of a joint or where there is reduction of motion in a joint as well as other factors.
80. The construction urged upon us by Border Express does not address the first point of ambiguity and, in all likelihood, it would cause greater difficulty and stark inconsistency in relation to the second point.
81. To our mind if paragraph 5 on page 76 is read in its terms it conforms well to the Principles of Assessment and the instructions that are set out in the introduction to Part I of Chapter 9. It also conforms well with the instructions to Table 9.7. On that construction there is no difficulty applying the various instructions that are presently in issue and there is no apparent inconsistency. With regard to Border Express’ proposition that there would be no work for paragraph 5 on page 76 to do if this construction is preferred – there is no need to direct an assessor to Table 9.7 if that is what would occur in any event – we do not agree. Even though it may be difficult to describe an impairment that may satisfy all of the preconditioning factors to paragraph 5 on page 76, it does not follow that the paragraph has no work to do. As we have said, the paragraph is directive and declaratory. If the instruction is applied in its terms and the preconditioning factors are satisfied an assessor would be left in no doubt that the assessment is to be made under Table 9.7.
82. It is difficult to accept the contrary construction for which Border Express contends. On that construction only lower limb impairments that do not involve reduction of motion in a joint would be subject to assessment under Table 9.7. That would be so even in cases in which loss of motion in a joint is but a very minor component of the impairment.
83. A construction of that kind does not readily conform with the other instructions to the introduction to Part I of Chapter 9, or the instructions concerning Tables 9.1 to 9.4 or Table 9.7, and it does not sit concordantly and consistently with the methodologies expressed by the Principles of Assessment or the introductory notes to other parts of the approved Guide. Nevertheless, while uncertainty of expression may be a ground for argument in relation to ultra vires[61], to our mind the present ambiguity is not one that exceeds power. The power conferred upon Comcare and the Minister by section 28 of the SRC Act does not require certainty of expression as a condition of the valid exercise of that power. Ambiguity of the present kind, where more than one construction lies open without any necessity to ignore or rewrite any provision of the approved Guide, one must have regard to the remedial nature of the legislative scheme when determining the preferable interpretation.
[61] Re JJT; Ex parte Victoria Legal Aid [1998] HCA 44, per Callinan J at [152]; Whittaker v Comcare (1998) 86 FCR 532 at 543.
beneficial legislative scheme
84. It is well established law that worker’s compensation legislation should be interpreted in accordance with its remedial and beneficial purposes - a generous construction is required[62]. The established principle identified by Fullagar J in his dissenting judgment in Wilson v Wilson's Tile Works Pty Limited should be applied – “where two constructions of a Workers' Compensation Act are possible that which is favourable to the worker should be preferred”[63]. The preferred construction should not only accord with and promote the purpose of the legislation, but should avoid anomalies and harsh outcomes[64]. Nevertheless, the courts have emphasised that a liberal reading does not extend to distorting the purpose or normal reading of the words of the particular statute[65]. The correct approach to construction is to construe the particular provision in its terms and in its context, so that it is consistent with the language and purpose of all the provisions of the SRC Act[66]. But this does not permit an unreasonable or unnatural construction or a rewriting of the provision[67].
[62] Waters v Public Transport Corporation (1991) 173 CLR 349 at 394 per Dawson and Toohey JJ.
[63] (1960) 104 CLR 328 at 335.
[64] Stingel v Clark (2006) 226 CLR 442 at 454 per Gleeson CJ, Callinan, Heydon and Crennan JJ.
[65] Waters v Public Transport Corporation (1991) 173 CLR 349 at 372 per Brennan J; I W v City of Perth (1996) 191 CLR 1 at 12 per Brennan CJ and McHugh J, at 58 per Kirby J.
[66] CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408 (per Brennan CJ, Dawson, Toohey and Gummow JJ); Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 (per McHugh, Gummow, Kirby and Hayne JJ); Network Ten Pty Limited v TCN Channel Nine Pty Limited (2004) 218 CLR 273 at 280-281 (per McHugh A-CJ, Gummow and Hayne JJ).
[67] Newcastle City Council v GIO General Limited (1997) 191 CLR 85 at 113 per McHugh J.
85. As we have said, the purpose of the approved Guide is the assessment of the degree of permanent impairment resulting from an injury under section 24 of the SRC Act. The provisions of the approved Guide should be read and construed in a manner that is consistent with that purpose. A construction that requires an impairment to be assessed under tables or against criteria that cannot be applied to it, with the result that either an assessment must be made under the AMA Guide or, if that Guide is not applicable, then no assessment made, is hardly consistent with the purposes of the approved Guide or the SRC Act. To our mind, a construction that avoids such difficulties and allows for the assessment of a permanent impairment under tables and against criteria that are applicable to it should be preferred.
86. The construction contended for by Border Express, absent ‘instructions to the contrary’, is not consistent with the comparative assessment methodology that is clearly contemplated by the Principles of Assessment, the introductory notes on page 76 and the preamble notes to Table 9.7, as well as the AMA Guide.
87. Additionally, as we have said, a construction of this kind would be likely to be productive of inconsistent results that may be harsh and unjust. In Mr Irwin’s case, for example, the abundant weight of the medical evidence is that Mr Irwin’s compensable injuries have resulted in significant and permanent impairments. When the impairments are assessed under Tables 9.1 and 9.2, Dr Bentivoglio, Dr Roth and Dr Billett agree the degree of impairment is 7 percent. But applying Table 9.7 Dr Bentivoglio assesses a 20 percent degree of impairment and Dr Billett assesses a degree of impairment “of at least 10 percent”. Under the former assessment Mr Irwin would not be entitled to compensation for permanent impairment, whereas under the latter assessment he would.
88. It is clear enough from paragraph 5 on page 76 that an assessment under Table 9.7 should be made if an assessment under Tables 9.1, 9.2, 9.3 or 9.4 is inadequate “and the condition does not cause a reduction in the range of movement of a joint but there is significant interference with gait”. But what is to be done if the assessment is inadequate and the ‘condition’ does cause a reduction in the range of motion of a joint or there is something less than a ‘significant interference with gait’? On one construction one must apply Principle 8 and make a comparative assessment under Table 9.7 subject to other applicable instructions and choose the higher result. On the other construction, for which Border Express contends, one must not do this and must proceed on the basis of the inadequate assessment under Tables 9.1, 9.2, 9.3 or 9.4. Clearly the former construction is more beneficial and, to our mind, it is likely to promote the purposes and consistent operation of the legislative compensation scheme in respect of permanent impairment.
89. We are bound to adopt the most beneficial construction, which simply applies the express terms of paragraph 5 on page 76, with no bar to a comparative assessment being made under Table 9.7 in respect of a lower extremity impairment involving loss of range of motion of a joint, so long as the relevant instructions are strictly adhered to. This construction is consistent with and promotes the purposes of the SRC Act and the approved Guide to provide compensation in respect of injuries that result in permanent impairment of 10 percent or more. It does not strain the language of the Guide or the particular provisions to which reference has been made. To our mind, the same cannot be said of the construction contended for by Border Express, which would result in an unduly narrow construction of Part I of Chapter 9 that would, to our mind, be productive of inconsistent outcomes.
90. Thus, to our mind the instructions should be applied in their terms without reading any additional words or meanings into them that are not there. That be so, there is no bar to the assessment of Mr Irwin’s lower limb impairments under Table 9.7 “strictly in accordance with” the related instructions.
91. This is not a matter of departing from the provisions of the approved Guide in an ad hoc manner; it is simply a matter of interpreting and applying the terms, provisions, methodologies and criteria of the approved Guide as written. It should be no surprise that this construction is productive of internal consistency within and between the relevant parts and provisions of the approved Guide that are in issue. It is also likely to be productive of cogent, consistent and fair assessments by application of the relevant parts of the approved Guide. And it is consistent with the purposes of the approved Guide and the SRC Act. For these reasons it is preferred.
assessment
92. Adopting the preferred construction, the correct procedure is first, to assess the degree of Mr Irwin’s permanent impairments under Tables 9.1 and 9.2, insofar as those Tables are applicable, and combine the resulting WPI ratings using the Combined Values Chart. The next step is to assess his impairments under Table 9.7 and then to compare the resulting WPI assessment with that derived from Tables 9.1 and 9.2 and choose the higher assessment.
93. Before going further in these rather lengthy reasons, there is further ambiguity in the instructions concerning the methodology applying to range of motion impairment values under Tables 9.1 and 9.2 that we must briefly address. The Introduction on page 76 sets out “Steps in Calculating Lower Extremity Impairment” in a table. The first step instructs an assessor to “Add abnormal range of motion/ankylosis impairment values within an individual joint” [original emphasis]. This instruction, while apparently straight-forward, raises a difficulty: does one add values for different kinds of reduced motion in a joint (in different directions for example), or does the instruction refer only to the addition of values for range of motion and ankylosis in a joint?
94. The instructions to Tables 9.1 and 9.2 do not clarify the correct methodology, although the notes to Table 9.2 contain a further instruction – “When ankylosis is not in the optimal position, add the relevant WPI ratings from Table 9.2 for ankylosis in each direction. Then add the base figure of 4% WPI for ankylosis in the optimal position”. The Tables set out specific criteria and WPI percentage values for different kinds and ranges of motion in particular joints. Table 9.2, for example, contains criteria for plantar flexion and dorsiflexion (relevantly):
% WPI Criteria (ONE required – different conditions may be assessed separately 3 Plantar flexion capability restricted to 15º-20 º.
Dorsiflexion restricted to less than 10 º.… 6 Plantar flexion capability restricted to 10 º or less.
Plantar flexion contracture of 10 º-15 º.…
Two constructions are open: one simply takes the highest assessment rating for plantar flexion or dorsiflexion in the joint, or one adds the assessment ratings for each range of motion deficit in the affected joint. For example, Dr Billett reported Mr Irwin’s range of right ankle motion as “Dorsi-flexion was zero, plantar flexion to 10º”[68]. On that evidence, the highest single assessment rating would be 6 percent in respect of plantar flexion, whereas if one added the assessments for each range of motion deficit - 3 percent for dorsiflexion and 6 percent for plantar flexion - an overall WPI rating of 9 percent would result.
[68] Dr Billett’s report, 5 August 2010, p4.
95. Considering Mr Irwin’s sub-talar and ankle joint impairments, applying Dr Billett’s evidence, on the first construction Mr Irwin would have a combined impairment assessment under Tables 9.1 and 9.2 of 8 percent (2 percent under Table 9.1 and 6 percent under Table 9.2. Under the second construction, however, he would have a combined impairment assessment of 12 percent (3 percent under Table 9.1 and 9 percent under Table 9.2).
96. For present purposes it is not necessary for us to resolve this issue and the underlying ambiguity in these provisions of the approved Guide. The issue was not raised or agitated before us, and it does not appear to be controversial. The assessments that have been made under these Tables by Dr Roth and Dr Billett adopt the first construction in which impairment values for range of motion restrictions in each joint are not added together. It was on this basis that Mr Irwin’s compensation claim for permanent impairment was assessed and rejected.
97. We prefer the more beneficial interpretation, but we will take the matter no further as it is not ultimately determinative. This ambiguity is a matter for further consideration by Comcare when preparing variations to the approved Guide.
98. Thus, applying the ranges of motion as reported by Dr Billett (which are more recent than and largely consistent with the reports of Dr Bentivoglio and Dr Roth), we are reasonably satisfied and find that:
(a)the degree of Mr Irwin’s impairment to his sub-talar joint is 2 percent (or 3 percent using the more beneficial methodology) under Table 9.1 – sub-talar inversion restricted to less than 10º;
(b)the degree of Mr Irwin’s impairment to his ankle joint is 6 percent (or 9 percent using the more beneficial methodology) under Table 9.2 – plantar flexion capability restricted to 10º or less;
(c)applying the Combined Values Chart the combined impairment under Tables 9.1 and 9.2 is 8 percent (or 12 percent using the more beneficial methodology); and
(d)the degree of Mr Irwin’s impairment to his mid-tarsal joint cannot be assessed under Tables 9.1 or 9.2 or under the AMA Guide as no provision is made for such an assessment.
99. The right foot malalignment impairment is to be assessed under Table 9.7 in respect to functional loss as it appears that no other table in the approved Guide is applicable. Whether or not this impairment should be assessed under the AMA Guide is moot, but this was not agitated before us.
100. Turning to consider a comparative assessment under Table 9.7, we note that the evidence of Dr Bentivoglio, Dr Roth and Dr Billett clearly and objectively identifies the orthopaedic nature of Mr Irwin’s right foot and ankle impairments. These are assessable under Table 9.7. The evidence of Mr Irwin, Dr Bentivoglio and Dr Billett clearly establishes that the major and minor criteria at the 20 percent level are satisfied in practical terms – Mr Irwin is restricted to walking 250 metres or less without a rest, he is unable to negotiate more than three steps without using a hand rail and he is unable to rise from sitting to standing without using one hand, but he can stand without support. Thus, the assessment of Mr Irwin’s objectively identified orthopaedic right foot, ankle and leg impairments under Table 9.7 is 20 percent.
101. Applying Principle 8 and paragraph 7 of the preamble to Table 9.7 the higher assessment rating of those obtained under Tables 9.1 and 9.2 and under Table 9.7 is to be applied. It follows, therefore, that the degree of Mr Irwin’s permanent impairment is 20 percent.
102. It should be noted that an assessment under Table 9.7 is of “overall lower extremity function”. Paragraph 5 on page 84 of the approved Guide provides that a single assessment only may be made under this Table. In a case such as this, it is not possible to assess functional loss in respect of disaggregated impairments in Mr Irwin’s right foot, ankle and leg arising from the separate fracture injuries he sustained in his right lower limb. On this basis Fellowes is distinguished. In that case two distinct knee injuries gave rise to permanent impairments in each lower limb that were assessed under the same functional table and criteria in the approved Guide but, nevertheless, gave rise to two heads of entitlement to compensation under the SRC Act. Mr Irwin’s permanent impairments have arisen from a number of distinct but related injuries, but these are all in one limb.
conclusion
103. In conclusion, therefore, we are satisfied that the degree of Mr Irwin’s permanent impairment is 20 percent. It follows that the requirements of section 24(7) are satisfied and Mr Irwin is entitled to payment of compensation for permanent impairment. In consequence he is also entitled to payment of compensation for non-economic loss pursuant to section 27 of the SRC Act. The decision under review is set aside. The amounts of compensation are yet to be calculated, and for this purpose the matter will be remitted to Border Express.
104. The parties have not been heard as to orders for costs pursuant to section 67(8) of the SRC Act. As the decision under review is set aside, and the matter is resolved in favour of Mr Irwin, we are minded to order Border Express to pay Mr Irwin’s reasonable costs in these proceedings in accordance with the Tribunal’s Guide to the Workers’ Compensation Jurisdiction, as agreed or taxed. The parties will have 14 days from the date of this decision to file submissions in relation to costs. If no submissions are filed, orders will be made in the above terms.
I certify that the 104 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Presiding Member, and Dr Hughson, MemberSigned: ...............[sgd]............................................................
H. Choi (Associate)Date of Hearing 28 February 2011
Date of Decision 1 April 2011
Counsel for the Applicant Mr A. Anforth
Solicitor for the Applicant Capital Lawyers
Counsel for the Respondent Mr D. Richards
Solicitor for the Respondent Monahan + Rowell Lawyers
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