John Verlinden and Comcare
[2014] AATA 46
•31 January 2014
[2014] AATA 46
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/0331
Re
John Verlinden
APPLICANT
And
Comcare
RESPONDENT
Decision
Tribunal Senior Member J Toohey
Date 31 January 2014 Place Sydney The decision under review is affirmed
.....................................................................
Senior Member J Toohey
CATCHWORDS – COMPENSATION – accepted injury to lumbar spine – subsequent aggravations – agreed permanent condition – absence of radiculopathy – whether applicant’s permanent impairment to be assessed by reference to Table 9.17 of the Guide – AMA Guides – clinical judgment – decision under review affirmed
Legislation
Safety Rehabilitation and Compensation Act 1988 ss 4, 24(5), 24(7), 28(4)
Cases
Riley and Comcare [2011] AATA 674
Comcare v Broadhurst [2011] FCAFC 39
Secondary Materials
Comcare, Guide to the Assessment of Permanent Impairment Edition 2.1
American Medical Association, Guides to the Evaluation of Permanent Impairment 5th edition 2001
REASONS FOR DECISION
Senior Member J Toohey
Background
In April 1993, Mr John Verlinden suffered an injury to his lumbar spine in the nature of an aggravation of a previously asymptomatic mild lumbar spondylosis. The respondent accepted liability for his injury.
Mr Verlinden suffered further minor aggravations and now has a substantial lumbar spondylosis that limits the range of movement in his lumbar spine and his capacity for lifting and bending. His injury and the limitations on the use of his lumbar spine are impairments within the meaning of the Safety Rehabilitation and Compensation Act 1988 (the Act). They are permanent.
So much is agreed between the parties. What remains in dispute is how the degree of Mr Verlinden’s permanent impairment is to be assessed.
The Act provides that the degree of an employee’s permanent impairment is to be determined under the provisions of the approved Guide to the Assessment of Permanent Impairment (the Guide) in force at the relevant time: s 24(5) and 28(4). Edition 2.1 of the Guide was in force on 25 September 2012 when Mr Verlinden lodged his claim.
Subject to an exception that is not relevant here, compensation is not payable to an employee whose degree of permanent impairment is less than 10 per cent: s 24(7).
It is not in dispute that, if assessed by reference to the diagnostic criteria in Table 9.17 in the Guide (Lumbar spine – diagnosis-related estimates), Mr Verlinden’s degree of permanent impairment is 8 per cent. It is submitted for Mr Verlinden, however, that Table 9.17 is not relevant or applicable to his kind of impairment and an alternative method of assessment must be used.
The Guide to the Assessment of Permanent Impairment
Part 1 of the Guide includes Tables by reference to which an employee’s permanent impairment may be assessed in terms of percentage of “whole person impairment” (WPI). The concept of WPI is based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA Guides) and provides for compensation for permanent impairment of any body part, system or function to the extent to which it permanently impairs an employee as a whole person: Introduction to the Guide.
Impairments are set out in Chapters and Tables in the Guide according to body system. Depending on the kind of impairment, loss of use or function is measured by reference to functional or diagnostic characteristics.
An assessor must have regard to the principles of assessment set out in the Guide and any instructions accompanying individual Tables.
Principle 12 provides that, if an employee’s impairment is of a kind that cannot be assessed in accordance with Part 1 of the Guide then, save for certain impairments or conditions, the assessment is to be made under the AMA Guides.
Cases may arise in which an impairment cannot be assessed under the AMA Guides. The Tribunal considered such a case in Riley and Comcare [2011] AATA 674 in which the claimant’s sexual function was impaired by reason of his psychological injury. The Table in the Guide relevant to sexual function stated that it was intended for use only to assess impairment resulting from neurological impairment or local lesions of, among other parts of the reproductive organs, the penis; it was “not intended for use where sexual function is impaired for any other reason (for example, pain or depression).” The AMA Guides provided a means of assessing “penile disease” but not the claimant’s separate impairment of total sexual dysfunction. The Tribunal determined it should assess his impairment by reference to the Table in the Guide on the basis that the instructions limiting its application were invalid.
On appeal, the Federal Court made orders by consent setting aside the Tribunal’s decision and remitting the matter to the Tribunal for reconsideration consistent with the parties’ agreement that the proper approach was as follows:
(i)having determined that there was no applicable Table for the applicant’s impairment, the Tribunal should have referred to the Principles of Assessment in Part 1 of the Guide;
(ii)those Principles provide that in the event that an employee's impairment is of a kind that cannot be assessed in accordance with the provisions of Part 1 of the Guide, the assessment is to be made under the edition of the AMA Guides;
(iii)the AMA Guides provide that “in situations where impairment ratings are not provided, the Guides suggest that physicians use clinical judgement comparing measurable impairment resulting from the unlisted condition to the measurable impairment resulting from similar conditions with similar impairment of function in performing activities of daily living”;
(iv)accordingly, if the Tribunal is satisfied that neither guide provides a specific means by which the impairment can be assessed, the Tribunal should consider evidence from doctors as to the degree of impairment suffered based on their clinical judgement (informed by considering the degree of impairment resulting from similar listed conditions in the relevant edition of the AMA Guides).
Table 9.17
Table 9.17 sets out percentage degrees of impairment according to diagnostic-related estimates as follows:
Table 9.17 Lumbar Spine
% WPI
Criteria
0
No significant clinical findings, no observed muscle guarding or spasm, no documented neurological impairment, no documented alteration in structural integrity, and no other indication of impairment related to injury or illness
or
No fractures.
8
Clinical history and examination findings compatible with a specific injury. Findings may include: significant muscle guarding or spasm; asymmetric loss of range of motion; or nonverifiable radicular complaints, defined as complaints of radicular pain without objective findings. No alteration of the structural integrity and no significant radiculopathy
or
Prior clinically significant radiculopathy and radiologically demonstrated disc herniation, consistent with the radiculopathy, but radiculopathy no longer present following conservative treatment
or
Fractures:
· Compression fracture of one vertebral body of less than 25%
· Posterior element fracture without dislocation (not developmental spondylosis) that has healed without alteration of motion segment integrity
· Spinous or transverse process fracture with displacement without a vertebral body fracture, with no disruption of the spinal canal
10 - 13
Significant signs of radiculopathy, such as dermatomal pain and/or in a dermatomal distribution, sensory loss, alteration of relevant reflex(es), loss of muscle strength or measured unilateral atrophy above or below the knee compared to measurements on the contralateral side at the same location (may be verified by electrodiagnostic findings)
or
History of a herniated disc at the level and on the side consistent with objective clinical findings, associated with radiculopathy, or employees who have had surgery for radiculopathy but are now asymptomatic
or
Fractures:
· Compression fracture of one vertebral body of 25% to 50%—healed without alteration of structural integrity
· Posterior element fracture with displacement disrupting the spinal canal —healed without alteration of structural integrity.
23
Loss of motion segment integrity (at least 4.5mm of translation of one vertebra on another, or angular motion greater than 15º at L1-2, L2-3, and L3-4, greater than 20º at L4-5, and greater than 25º at L5-S1). May have complete, or near complete, loss of motion of a motion segment due to developmental fusion, or successful or unsuccessful attempt at surgical arthrodesis
or
Compression fracture of one vertebral body of more than 50%, without residual neurological compromise.
28
Both radiculopathy and loss of motion segment integrity are present, with significant lower extremity impairment indicated by atrophy or loss of reflex(es), pain, and/or sensory changes within an anatomic distribution (dermatomal), verified by electrodiagnostic findings
and
at least 4.5mm of translation of one vertebra on another or angular motion greater than 15º at L1-2, L2-3, and L3-4, greater than 20º at L4-5, and greater than 25º at L5-S1
or
Compression fracture of one vertebral body of more than 50%, with unilateral neurological compromise.
Medical evidence
Mr Verlinden’s claim for compensation was for “lower back lumbar soft tissue injury”. It is not in dispute that he sustained that injury. Reports from treating doctors and doctors who assessed him for the purposes of his claim indicate he has diffuse degenerative disc disease. It is agreed that he has no significant signs of radiculopathy and no fractures of the spine.
Dr Richard Deveridge, a Workcover assessor, reported that Mr Verlinden had “a significant ongoing disability with frequent low back pain and stiffness” and that his clinical presentation suggested damage to the L4/5 disc. He assessed Mr Verlinden’s percentage of WPI as 8 per cent on Table 9.17 as “there is a specific injury, the clinical findings include significant muscle guarding and spasm as well as asymmetric loss of range of motion. There were no pre-existing or subsequent factors affecting this impairment rating …”.
The applicant’s submissions
For Mr Verlinden it is submitted that, merely because a Table pertains to a particular part of the body does not mean it is relevant to assessing every kind of impairment that can arise in that part of the body; if it is only applicable if certain diagnostic criteria are met, it can only be relevant to impairments of that kind. It is submitted that Table 9.17 cannot be used to assess Mr Verlinden’s kind of impairment because it is not relevant to assessing substantial impairments that are not radiculopathy-based.
It is submitted that “impairment” is defined broadly in s 4 of the Act to mean the loss, the loss of use of, 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. It is submitted there is no statutory basis in this definition for confining impairments to only some kinds of diagnoses or loss of functional use. The Tables as a whole are expected to provide a method of assessing each kind of impairment that may arise from compensable injuries and it is not open to the authors of the Guide to decide to compensate only some kinds of permanent impairment and not others or to relegate some kinds of impairments to below the threshold for compensability regardless of severity.
It is submitted that a Table restricted in its application to a particular kind of impairment meeting particular diagnostic criteria says nothing about the severity of an impairment that does not have those diagnostic criteria, and Table 9.17 does not permit a claimant to attain the threshold 10 per cent for compensable permanent impairment of the lumbar spine, no matter how severe the impairment, unless there is radiculopathy or a compression fracture of a vertebra; in the absence of those criteria, the maximum percentage impairment is 8 per cent.
It is submitted that, as Table 9.17, properly construed, does not deal with Mr Verlinden’s kind of impairment but only with a limited range of lumbar spine impairments, it does not permit a truly relevant assessment of the degree of severity of his impairment, and so is inapplicable.
As the Guide cannot be used, it is submitted, resort must be had to the AMA Guides which include, in relation to the back, Diagnostically-Related Estimate Tables and Range of Motion Tables which measure different kinds of impairments; if there is no relevant Table under the AMA Guides, the relevant test is one of clinical judgment. It is submitted that the best guide to this clinical judgment is the 10 per cent assessment on Table 9.7 of the 1st edition of the Guide (Lower Extremity Function).
The respondent’s contentions
The respondent submits that the Guide and the AMA Guides are not alternatives from which a claimant can select the more favourable, and that is, in effect, what the applicant is seeking to do.
The respondent contends that the medical evidence is clear as to the kind of impairment Mr Verlinden has, and the degree of permanent impairment according to the Guide. There is no medical opinion suggesting some other impairment that cannot be assessed under the Guide. The respondent contends that Mr Verlinden’s impairment is capable of being assessed under Table 9.17, that it must be assessed under that Table, and that no recourse to another method of assessment can be had.
Consideration
I agree with the submissions for the respondent.
The Guide makes clear that WPI is a “medical quantification of the nature and extent of the effect of an injury or disease on a person’s functional capacity including Activities of Daily Living”: Part 1, Glossary. The AMA Guides, on which the Guide is based, explains that it was first published in 1971 “in response to a public need for a standardised, objective approach to evaluating medical impairments”. It has undergone several revisions since and been updated to incorporate “available scientific evidence and prevailing medical opinion”.
Throughout the AMA Guides the medical nature of the assessment is emphasised. At 1.2, it states:
The impairment criteria outlined in the Guides provide a standardised method for physicians to use to determine medical impairment. The impairment criteria include diagnostic criteria, incorporating anatomical and functional measures. The impairment criteria were developed from scientific evidence as cited and from consensus of chapter authors or of medical specialty societies.
Merely because a medical practitioner uses a particular Table, or assigns a particular percentage degree of impairment, does not mean that the correct Table has been used or the Table correctly applied. It may even be that the Table is invalid. In Comcare v Broadhurst[2011] FCAFC 39, for example, assessment had been made on a Table found subsequently by the Court to be invalid.
However, whether the diagnosis of a claimant’s impairment meets the criteria in a particular Table, or whether there are features of an impairment that mean a Table cannot be used, is essentially a medical assessment. In this case, nothing in the medical reports suggests any reason Mr Verlinden’s impairment cannot be assessed using Table 9.17. There is no evidence of pathology not accounted for by that Table or which suggests it cannot be used. Based on the medical reports, his symptoms fit squarely within the diagnostic criteria that attract a rating of 8 per cent.
The presence of radiculopathy (or fractures) is not a criterion that must be present before Table 9.17 can be used. It is a criterion necessary to attract a rating of 10 per cent. It does not follow, because a certain level of diagnostic criteria must be reached in order to attract a rating of 10 per cent, that a Table is irrelevant or inapplicable to an impairment that does not involve those criteria. What follows is that it is not a compensable permanent impairment.
Conclusion
There is no basis for concluding that Mr Verlinden’s degree of permanent impairment cannot be assessed under Table 9.17. It follows that it must be used. The fact that another Table or method of assessment might produce a more favourable outcome is not the point.
It is agreed that, assessed by reference to Table 9.17, Mr Verlinden’s degree of permanent impairment is 8 per cent. It follows that the respondent is not liable to compensate him under s 24 of the Act.
The decision under review is affirmed.
32. I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Ms J Toohey, Senior Member.
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Associate
Dated 31 January 2014
John Verlinden and Comcare [2014] AATA 46
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