JOSEPHINE BLACK and COMCARE
[2009] AATA 593
•12 August 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 593
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/0172
GENERAL ADMINISTRATIVE DIVISION ) Re JOSEPHINE BLACK Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President S D Hotop Date12 August 2009
PlacePerth
Decision The Tribunal affirms the decision under review.
...........[sgd S D Hotop]........
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employees – injury – permanent impairment – applicant involved in motor vehicle accident in course of employment – applicant suffered injury to neck and injury to shoulders – applicant has permanent impairment of neck and shoulders resulting from injuries – degree of permanent impairment – compensation payable if injury results in permanent impairment of at least 10% – each of applicant’s injuries resulted in permanent impairment of less than 10% – impairment scores cannot be combined or added together – permanent impairment compensation not payable to applicant in respect of each injury – decision under review affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s 14(1), s 24, s 27 and s 28
Guide to the Assessment of the Degree of Permanent Impairment (second edition), Part 1, Tables 9.11.1a, 9.11.1b, 9.11.1c, Table 9.15 and Appendix 1
Canute v Comcare (2006) 226 CLR 535
REASONS FOR DECISION
12 August 2009 Deputy President S D Hotop Introduction
1. On 6 February 1995 Josephine Black (“the applicant”), who was then employed by Centrelink as a Mobile Review Team Field Assessor, was injured in a motor vehicle accident. She claimed that that accident had occurred in the course of her employment and she made a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”).
2. Comcare (“the respondent”) accepted liability under s 14 of the SRC Act to pay compensation to the applicant for an injury to her neck which she suffered in the abovementioned motor vehicle accident, and it subsequently accepted liability under s 14 of the SRC Act to pay compensation to the applicant for an injury to each of her shoulders which she also suffered in that motor vehicle accident.
3. On 25 October 2007 the applicant made a claim for compensation under s 24 of the SRC Act for permanent impairment in respect of her neck and shoulders.
4. On 8 September 2008 the respondent made a determination that it was not liable to pay compensation to the applicant for permanent impairment in respect of her neck and shoulders.
5. On 26 November 2008 the respondent made a “reviewable decision” affirming the determination of 8 September 2008.
6. On 13 January 2009 the applicant applied to the Tribunal for a review of the respondent’s reviewable decision of 26 November 2008.
The Issue and the Tribunal’s Determination
7. It is common ground that the applicant has a permanent impairment, for the purposes of the SRC Act, in respect of her neck and shoulders. The issue for the Tribunal’s determination is whether the applicant has a permanent impairment resulting from an injury, the degree of which permanent impairment is at least 10% so as to entitle her to be paid compensation in accordance with s 24 of the SRC Act.
8. For the reasons which follow, the Tribunal has determined that the degree of the applicant’s permanent impairment resulting from each injury – namely, the injury to her neck and the injury to each of her shoulders – is less than 10% and that, accordingly, compensation is not payable to her pursuant to s 24 of the SRC Act in respect of each injury.
The Evidence
9. The evidence before the Tribunal comprised:
· the “T Documents” (T1 – T137, pp 1 – 240) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth); and
· an extract from the respondent’s written submissions in the matter of Canute v Comcare in the High Court of Australia (No S154 of 2006) (Exhibit R1).
There was no oral evidence.
The Relevant Legislation
The SRC Act
10. The SRC Act relevantly provides:
“ 14 Compensation for injuries
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
…
24 Compensation for injuries resulting in permanent impairment
(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee’s condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
(3)Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4)The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5)Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6)The degree of permanent impairment shall be expressed as a percentage.
(7)Subject to section 25, if:
(a) the employee has a permanent impairment other than a hearing loss; and
(b) Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
…
27Compensation for non-economic loss
(1)Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
…
28Approved Guide
(1)Comcare may, from time to time, prepare a written document, to be called the “Guide to the Assessment of the Degree of Permanent Impairment”, setting out:
(a) criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury shall be determined;
(b) criteria by reference to which the degree of non-economic loss suffered by an employee as a result of an injury or impairment shall be determined; and
(c) methods by which the degree of permanent impairment and the degree of non-economic loss, as determined under those criteria, shall be expressed as a percentage.
(2)Comcare may, from time to time, by instrument in writing, vary or revoke the approved Guide.
…
(4)Where Comcare, a licensee or the Administrative Appeals Tribunal is required to assess or re-assess, or review the assessment or re-assessment of, the degree of permanent impairment of an employee resulting from an injury, or the degree of non-economic loss suffered by an employee, the provisions of the approved Guide are binding on Comcare, the licensee or the Administrative Appeals Tribunal, as the case may be, in the carrying out of that assessment, re-assessment or review, and the assessment, re-assessment or review shall be made under the relevant provisions of the approved Guide.
…”
Section 4(1) of the SRC Act, as in force at all material times, contained the following relevant definitions:
“ …
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
approved Guide means:
(a) the document, prepared by Comcare in accordance with section 28 under the title ‘Guide to the Assessment of the Degree of Permanent Impairment’, that has been approved by the Minister and is for the time being in force; and
…
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
…
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.
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
…
non-economic loss, in relation to an employee who has suffered an injury resulting in a permanent impairment, means loss or damage of a non-economic kind suffered by the employee (including pain and suffering, a loss of expectation of life or a loss of the amenities or enjoyment of life) as a result of that injury or impairment and of which the employee is aware.
…
permanent means likely to continue indefinitely.
…”
The Guide to the Assessment of the Degree of Permanent Impairment
11. The second edition of the Guide to the Assessment of the Degree of Permanent Impairment (“the approved Guide”), prepared by the respondent under s 28(1) of the SRC Act, applies “on and from 1 March 2006 in relation to determinations made under sections 24, 25 or 27 of the SRC Act in respect of claims under those sections … received by the relevant authority after 28 February 2006” (p iv of the approved Guide).
12. The Principles of Assessment set out in Part 1 of the approved Guide (pp 11 -14) relevantly state:
“ …
5. The Impairment Tables
Part 1, Division 1 of this Guide is based on the concept of whole person impairment which is drawn from the American Medical Association’s Guides to the Evaluation of Permanent Impairment (see the 5th edition, 2001).
Division 1 assembles into groups, according to body system, detailed descriptions of impairments. The extent of each impairment is expressed as a percentage value of the whole, normal, healthy person. Thus, a percentage value can be assigned to an employee’s impairment by reference to the relevant description in this Guide.
It may be necessary in some cases to have regard to a number of Chapters within Part 1 of this Guide when assessing the degree of whole person impairment which results from an injury.
Where a table specifies a degree of impairment because of a surgical procedure, the same degree of impairment applies if the same loss of function has occurred due to a different medical procedure or treatment.
…
7. Percentages of Impairment
Each table in Part 1, Division 1 contains impairment values expressed as percentages. Where a table is applicable in respect of a particular impairment, there is no discretion to choose an impairment value not specified in that table. For example, where 10% and 20% are the specified values, there is no discretion to determine the degree of impairment as 15%.
8. Comparing Assessments under Alternative Tables
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 the employee.
9. Combined Values
Impairment is system or function based. A single injury may give rise to multiple losses of function and, therefore, multiple impairments. When more than one table applies in respect of that injury, separate scores should be allocated to each functional impairment. To obtain the whole person impairment in respect of that injury, those scores are then combined using the Combined Values Chart (see Part 1, Appendix 1) unless the notes in the relevant section specifically stipulate that the scores are to be added (For instance, see 9.8.1 at page 87).
Where two or more injuries give rise to the same whole person impairment only a single rating should be given. For example, impairments resulting from separate injuries to the left and right knees are initially assessed separately under Tables (sic) 9.3 and then, in accordance with the notes at Part 1 – Introduction to Chapter 9 on page 74, the impairments are combined using the Combined Values Chart to obtain the overall impairment for the lower extremity function which is taken to be a single whole person impairment. Alternatively, a whole person impairment value can be obtained using the method set out in Table 9.7 (which treats the injuries to both knees as the same impairment*) and this value can then be compared to the combined value previously obtained to determine which is the most beneficial. [*The notes on page 84 to Table 9.7 provide: ‘A single assessment only may be made under Table 9.7, irrespective of whether one or two extremities are affected by the injury’.]
However, where two or more injuries give rise to different whole person impairments, each injury is to be assessed separately and the final scores for each injury (including any combined score for a particular injury) added together.
It is important to note that whenever the notes in the relevant section refer to combined ratings, the Combined Values Chart must be used, even if no reference is made to the use of that Chart.
10. Calculating the Assessment
Where relevant, a statement is included in the Chapters of Part 1, Division 1 which indicates:
·the manner in which tables within that Chapter may (or may not) be combined;
·whether an assessment made in that Chapter can be combined with an assessment made in another Chapter in assessing the degree of whole person impairment.
There are some special circumstances where addition of scores rather than combination is required. These circumstances are specified in the relevant sections and tables in Part 1 of this Guide.
…” (original emphasis)
13. Chapter 9 of Part 1 of the approved Guide deals with the “musculoskeletal system”. Part II of Chapter 9 deals with the “upper extremities”, namely, hands and fingers, wrists, elbows and shoulders. Part III of Chapter 9 deals with the spine, including the cervical spine.
14. The Introduction in Part II of Chapter 9 relevantly states:
“ Part II – Introduction
The impairments assessed for each region in each upper extremity are combined (that is, hand, wrist, elbow, shoulder). The WPI [whole person impairment] rating for one upper extremity may be combined with a WPI rating for the other upper extremity, except in the case of assessments under Table 9.14 (see page 109), where the notes appearing prior to Table 9.14 (see page 109) are to be followed.
…” (original emphasis)
15. Impairments to range of motion of the shoulders are assessed in accordance with Table 9.11.1a (“Shoulder Flexion/Extension”), Table 9.11.1b (“Shoulder – Internal/External Rotation”) and Table 9.11.1c (“Abduction/Adduction of Shoulder”). Impairments of the cervical spine are assessed in accordance with Table 9.15 (“Cervical Spine – Diagnosis-Related Estimates”).
The Factual Background
16. On the basis of the T Documents the Tribunal finds the following background facts.
17. The applicant lodged with the respondent a “Claim for Rehabilitation and Compensation” form, dated 28 February 1995, in which she provided the following information (inter alia):
· the injury happened on 6 February 1995 at 4.45pm;
· in response to the instruction, “Describe the injury or illness you are claiming for including the parts of the body affected”, the applicant wrote “neck”;
· in response to the instruction, “Describe in detail what events contributed to your injury/illness”, the applicant wrote:
“ … a car came from nowhere at high speed & hit my car on the right side front. I hit my head on the rt driver’s side window. Next day I felt sore in my neck & shoulders.
…” (T3, pp 9, 12)
18. On 7 February 1995 Dr M Singh issued a “First Medical Certificate”, for workers’ compensation purposes, in which it was stated that the applicant had first attended him on 7 February 1995 at 4.30 pm in relation to an injury sustained in a motor vehicle accident on 6 February 1995 and that the provisional diagnosis of the applicant’s injury was:
“soft tissue injury cervical spine T2”. (T4, p15)
19. The applicant lodged with the respondent a further “Claim for Rehabilitation and Compensation” form, dated 18 October 1999, in relation to the abovementioned motor vehicle accident on 6 February 1995, in which she provided the following information (inter alia):
· in response to an instruction to describe the injury, the applicant wrote:
“ whiplash to my neck”;
· in response to the question, “What part of the body is affected …?”, the applicant wrote:
“ neck & shoulders”;
· in response to an instruction to describe how the injury affects her, the applicant wrote:
“ limited movement left shoulder due to impingement”;
· in response to a question and an instruction regarding her previously sustaining any similar injury, the applicant wrote:
“ Initial claim in 1995. Surgery on R shoulder. Now require surgery to L shoulder.”;
· in response to an instruction to describe the events which contributed to her injury, the applicant wrote:
“ hit by another car & injured my neck”. (T51, pp 86, 87)
20. By letter dated 19 November 1999 an officer of the respondent informed the applicant as follows:
“ Date of injury: 06/02/1995
Accepted Condition: soft tissue injury to cervical spine T2 (sic)
I wish to advise that I have now received a report from Dr Singh, which confirms that you have suffered from left shoulder problems since the motor vehicle accident in 1995. I also notice from the claim papers that whilst authorisation was approved for medical treatment in respect of your right shoulder no formal notice of liability was given to you.
To resolve this issue I have formally determined under Section 14 of the Safety Rehabilitation and Compensation Act 1988, that the injury sustained by you in the motor vehicle accident on 6 February 1995 be extended to cover bilateral rotator cuff tendonitis.
…” (T59, p106)
21. On 13 November 2007 the applicant lodged with the respondent a “Compensation Claim for Permanent Impairment” form dated 25 October 2007. In response to the question, “What permanent injury/impairment(s) of the body do you want to claim for?”, in that form, the applicant wrote:
“ neck
shoulders”.
In Part C of that form Dr Singh provided the following information (inter alia):
·“Diagnosis of current condition” “ Soft tissue injury cervical thoracic spine
bilateral rotator cuff tendonitis”;
·“Is this related to accepted condition?” “Yes”;
· “If YES, what impairment to
-bodily parts
-bodily functions
-bodily systems
have resulted from the condition?”
…
·“Please describe extent of the impairment(s) listed above”
“Greater than 10% permanent impairment to both shoulders and cervical thoracic spine”;
“ Greater than 10% of whole body”. (T112)
22. On 8 September 2008 an officer of the respondent made a determination denying liability to pay compensation to the applicant pursuant to ss 24 and 27 of the SRC Act in response to her claim dated 25 October 2007. (T132)
23. On 26 November 2008 another officer of the respondent made a reviewable decision under s 62 of the SRC Act affirming the abovementioned determination of 8 September 2008. (T137)
The Medical Evidence
Dr Mohan Singh
24. Dr Singh has, at all material times, been the applicant’s treating general practitioner. He issued the “First Medical Certificate” on 7 February 1995 for the purposes of the applicant’s relevant claim for compensation and, in that certificate, he stated that the provisional diagnosis of the applicant’s relevant injury was:
“ soft tissue injury cervical spine T2”. (T4, p15)
He issued a “Progress/Fitness Medical Certificate” on 4 May 1995 in which he described the diagnosis of the applicant’s relevant injury in the abovementioned terms (T5, p17). In subsequent progress/fitness medical certificates issued on 18 June 1996, 21 June 1996, 27 September 1996, 8 March 1997 and 7 April 1997, Dr Singh described the diagnosis of the applicant’s relevant injury as:
“ soft tissue injury cervical spine”. (T6, p19; T8, p22; T10, p25; T17, p34; T19, p37)
25. Following an arthroscopic acromioplasty of the applicant’s right shoulder performed by Mr Allan Wang, Orthopaedic Surgeon, on 22 April 1997 (see paragraph 32 below), Dr Singh issued progress/fitness medical certificates, for the purposes of the applicant’s relevant compensation claim, on 6 June 1997 and 26 September 1997 in which he described the relevant diagnosis as:
“ soft tissue injury cervical spine
R shoulder arthroscopic acromioplasty”. (T28; T32, p56)
26. On 31 March 1998 and 9 May 1998 Dr Singh issued progress/fitness medical certificates in which he described the relevant diagnosis as:
“ soft tissue injury cervical spine”.(T42; T43)
27. On 3 August 1999 Dr Singh issued a progress/fitness medical certificate for the purposes of the applicant’s relevant compensation claim in which he described his clinical findings and diagnosis as follows:
“ 1. L shoulder pain
2. Vertigo: chronic neck pain”. (T45, p 76)
He issued a further progress/fitness medical certificate on 7 October 1999 in which he described the relevant clinical findings and diagnosis as:
“ L shoulder symptoms → impingement
symptoms since 2.99”
and added:
“ will require surgery L shoulder”. (T50, p 82)
28. In response to a request by the respondent (T57, pp 99 – 101), Dr Singh provided a medical report regarding the applicant, dated 18 November 1999, in which he stated (inter alia):
“ With regard to your request for a medical report I will answer your questions as you have raised them.
1.On 03/05/1999, Mrs Black presented with symptoms of neck pain and stiffness, radiating to the left shoulder, associated with vertigo over the previous two weeks. Clinically she was very tender over the left paravertebral soft tissues of her neck from C5 to T2. She also had restricted lateral rotation of the left shoulder. I prescribed Stemetil tablets and referred her to the physiotherapist.
Her last visit to me in relation to her MVA was on 09/05/1998 when she had also complained of left shoulder and neck symptoms. As such there had been no change in her symptoms from that date till May 1999.
2.When Mrs Black was first involved in her MVA and when she first consulted me on 07/02/1995 she had complained of neck pain, mainly over the left side. On 09/01/1996 she also complained of left shoulder symptoms. Again when she saw me on 01/06/1996, 18/06/1996 and 21/06/1996 she continued to complain of neck and left shoulder symptoms. It was difficult during clinical examination, during this period of time to be certain as to whether she was having left shoulder symptoms related to the shoulder itself or secondary to her neck symptoms.
I note that the letter from the physiotherapist, Mr Sun Lai on 10/01/1996, stated that Mrs BLACK had sustained left shoulder and neck injuries following the accident. Hence my first record of left shoulder symptoms for Mrs Black was on 07/02/1995 when she first presented after her accident.
When I examined the left shoulder in great detail on 03/081999, Mrs Black stated that her left shoulder symptoms had been much worse over the preceding 4 months. I did not make any note as to the reason for this sudden exacerbation of her symptoms. I do know that she works as a debt collector and her work does involve a great deal of keyboard work.
3.On the balance of probability I have no doubt that her current left shoulder injury is a direct result of that incident. My records show that her initial symptoms were mainly her neck with referred pain to her left shoulder, and retrospectively I believe that she did not have referred pain to the left shoulder but that the left shoulder itself was symptomatic. The medical history that I have is that her original problem was with the left shoulder. However, I have no doubt that in the accident both her shoulders were injured. I believe that initially her right shoulder was the problematical shoulder, but as soon as those symptoms resolved her left shoulder became more symptomatic.
…
In summary I would like to state that Mrs Black was involved in a MVA on 06/02/1995 where she sustained injury to her neck and both shoulders. However, as she went along initially her left shoulder gave her problems and then subsequently her right shoulder was more symptomatic. The operation to her right shoulder has eased her symptoms but subsequent to this her left shoulder symptoms were exacerbated. She now needs treatment to her left shoulder. In my opinion I have no doubt that these injuries are consistent with a MVA with an element of aggravation due to the nature of her work, namely her keyboard duties.
…” (T58)
29. In response to a request by the respondent (T75), Dr Singh provided a medical report regarding the applicant, dated 26 July 2004, in which he stated (inter alia):
“ Thank you for your request for a medical report and I will answer your questions as you have raised them.
Question 1.
Josephine attended my practice on the 28th May 2004 complaining of an exacerbation of her neck and shoulder symptoms. This had been occurring over the last three weeks. She stated that prior to that she had been experiencing occasional symptoms. However she was doing more repetitive job (sic) in debt collection at this point in time. She felt that the increased work load had contributed to an exacerbation of her symptoms.
Question 2.
The current presentation is an exacerbation of her old injury.
Question 3.
Mrs Black has been a patient of mine since 1993. … Mrs Black has been suffering from pain since the accident on the 6th February 1995 and has seen me over this nine year period at regular intervals for the same type of pain. There have been aggravating factors, usually from work that have caused this pain to flare up.
Question 4.
Mrs Black has stiffness about the cervical thoracic spine and has restriction of lateral rotation and flexion and extension. She had localised tenderness between C3 – T2 when examined on the 28th May 2004. Her objective clinical signs have improved since her accident in 1995.
…” (T76)
30. Dr Singh subsequently issued periodic progress medical certificates in respect of the applicant’s ongoing neck and shoulder pain symptoms.
Dr Patrick Cheah
31. Dr Cheah, Consultant Rheumatologist, provided a report regarding the applicant, dated 30 October 1996, to Dr Singh as follows:
“ Thank you for referring this 49 year old review officer with the Dept of Social Security who was seen at my West Perth Rooms on 30 October 1996 with regards to symptoms referable to her neck and right shoulder area, this resulting in (sic) her involvement in a MVA on 4 (sic) February 1995.
She was at the time making a right hand turn out of a busy car yard along Albany Highway when another car approaching from the right side collided against the right front end of her car. At impact, she lurched to the left, then to the right, hitting the right side of her head against the driver window. She did not develop any immediate symptoms and she consulted yourself the following day. She did note the gradual onset of neck discomfort as well as restriction, this being more prominently felt on the left side. She had a trial of physiotherapy treatment which worsened her neck symptoms and following physiotherapy treatment, she became aware of pain in her right shoulder. She did try chiropractic treatment which was not of much help. She denies any previous history of neck or right shoulder area pain and she has not been involved in any other motor vehicle accidents.
On examination, she had pain on flexion and abduction of her right shoulder and there was palpable tenderness over the right subacromial space. Neck movements were moderately restricted with about 50% residual neck movements. There was palpable tenderness over the left lower cervical paraspinal regions. Neurological examination was entirely normal.
I understand from your letter that x-rays of her cervical spine have been radiologically normal.
On present evaluation, she does have features that would be consistent with a cervical spinal strain injury, this resulting from the MVA of 4 (sic) February 1995 and additionally she has features compatible with a right sided rotator cuff tendonitis. The question of local steroidal injection treatment to her right subacromial bursa was discussed with her but she is not keen on this therapeutic option. She has therefore been referred for a trial on the TENS machine and I will review her progress following the completion of a month’s trial on the TENS unit. There would presently be no strong indication for an MRI study of her cervical spine.
…” (T11)
By letter dated 16 April 1997 an officer of the respondent wrote to Dr Cheah as follows:
“ In order to ascertain the extent of ongoing Commonwealth liability for Ms Black’s claim, it would be appreciated if you would provide a response as soon as possible to the following question.
In your report dated 30 October 1996 (last paragraph page 1), you mention right subacromial bursa. Can you please confirm if this injury was sustained during the MVA on 4 (sic) February 1995.
…” (T21, p 40)
Dr Cheah responded, by letter dated 17 April 1997, as follows:
“ Thank you for your letter of 16 April 1997.
With regards to her problem of a right sided rotator cuff tendonitis/subacromial bursitis, it would appear on the basis of the history as provided by Mrs Josephine Margaret Black that it would be an extremely high probability that this problem did result from the trauma associated with her involvement in the MVA as described on 4 (sic) February 1995.
…” (T22)
Mr Allan Wang
32. Mr Wang, Orthopaedic Surgeon, provided a report regarding the applicant, dated 14 April 1997, to Dr Singh as follows:
“ Thank you for asking me to see Mrs Black, a 50 year old left hand dominant lady who works for the Social Security Department. Mrs Black was involved in a motor vehicle accident in February 1995 where she struck the lateral aspect of the right shoulder against the door. She has since had rotator cuff impingement symptoms and over the past 12 months her symptoms have increased. She awakens almost every night from pain, and has difficulty doing any overhead work. Two cortisone injections have provided only temporary relief and a TENS machine has not been helpful. I note Josephine otherwise keeps good health though also injured her neck in the accident and this causes some on-going symptoms.
On examination Josephine is a very pleasant lady who has advanced symptoms for rotator cuff tendonitis. There is tenderness over the cuff insertion and subacromial bursa and active abduction is limited to 120 degrees by pain. The impingement signs are all positive, but external rotation is well preserved indicating this is not a frozen shoulder problem. I gather the recent ultrasound study of the right shoulder indicated an intact rotator cuff but there was significant bursal thickening and impingement of the tendon on abduction.
Josephine is now at the stage of requiring surgery and I have arranged for arthroscopic acromioplasty at The Mount Hospital on 22.4.97. …” (T20)
Mr Wang provided a report, dated 22 April 1997, to Dr Singh regarding the arthroscopic acromioplasty which he had performed on the applicant’s right shoulder on that date (T23, p 43), and he subsequently provided reports, dated 1 May 1997 (T24), 23 May 1997 (T27) and 30 June 1997 (T29), to Dr Singh regarding the applicant’s progress following that surgery.
33. Mr Wang provided a report, dated 2 December 1999, to Dr Singh regarding an arthroscopic acromioplasty which he had performed on the applicant’s left shoulder on that date (T62), and he subsequently provided reports, dated 10 December 1999 (T63), 4 February 2000 (T68) and 3 October 2000 (T70), to Dr Singh regarding the applicant’s progress following that surgery.
Dr John Hayes
34. Dr Hayes, Consultant Rheumatologist, examined the applicant on 23 July 2008 at the request of the respondent and he prepared a report regarding that examination, dated 6 August 2008 (T130). The contents of that report are (relevantly) as follows:
“ …
History of the compensable injury(s):
Ms Black was driving a Commonwealth car and was leaving the premises of Rangeway (sic) Ford on Albany Highway Mannington (sic) when her vehicle was struck on the right front by another car coming from the opposite direction. She was the driver and she was wearing a seatbelt. As a result of the MVA she was thrown violently to one side and her head struck the driver’s window.
By the next morning her neck was quite stiff and painful and she sought medical advice.
History of symptoms and treatment following the injury(s):
She initially consulted Dr Mohan Singh, her general practitioner in Duncraig on 7 February 1995. By then she had ongoing pain and stiffness in the neck and had difficulty elevating her right shoulder.
He referred her to Dr Patrick Cheah, Rheumatologist in October 1996. He gave two steroid injections into the right shoulder. The problems with the right shoulder persisted and she was referred to Mr Alan (sic) Wang, Orthopaedic Surgeon. She underwent surgery to the right shoulder by Dr Wang on 22 April 1997.
It was not until 1999 that Ms Black developed pain and limited movement in her left shoulder. She then underwent surgery to the left shoulder on 2 December 1999.
She received physiotherapy treatment from Jackie Gilmour for both her neck and shoulder problems between 1995 and 2000 (approx).
Since 2003 she has been seeing Jen Taylor for Bowen therapy for her chronic neck pain. She attends for Bowen therapy on a monthly basis and finds this of benefit.
Details of any relevant injury(s) or condition(s) sustained since the injury:
Ms Black underwent an arthroscopic acromioplasty to the right shoulder in 1997 and to the left shoulder in December 1999.
Current symptoms:
Ms Black continues to experience chronic neck-trapezial pain and has limited mobility in her cervical spine. Both shoulders improve (sic) with surgery however the right shoulder still has some degree of limitation and pain.
She claims that overall the mobility in her neck had deteriorated a lot over the past 10 years. Furthermore the neck pain often disturbs her sleep.
…
3.FINDINGS ON PHYSICAL/CLINICAL EXAMINATION
She presented as a 61 year old lady 167.5 cm in height and weighing 94 kg. She nevertheless moved freely and did not demonstrate features of illness behaviour.
Head/Neck:
Examination of her cervical spine revealed 70˚ range of rotation to either side with end range pain.
There was a 25˚ range of right lateral flexion and only 10˚ range of left lateral flexion with significant neck pain.
Forward flexion was to 40˚ however extension was limited to only 15˚. Passive neck movement was still quite restricted in all directions and palpation revealed moderate tenderness to the right of C3/4 whilst there was minimal left sided paraspinal tenderness.
The cervical foraminal compression test was negative and there were no nerve tension signs in the upper limbs. Furthermore there was no upper limb referred pain and no symptoms suggestive of nerve root entrapment.
Upper Limbs/Shoulder Girdles:
The MCP, PIP and DIP joints as well as both wrists and elbows were clinically normal.
Examination of the left shoulder revealed abduction to 150˚ and forward flexion to 160˚ with a normal range of internal/external rotation. Left shoulder movements were performed without pain.
Right shoulder range of movement
Abduction 140 degrees
Forward flexion 150 degrees
Adduction 40 degrees
Extension 40 degrees
External rotation 50 degreesInternal rotation 60 degrees
4.REVIEW OF DOCUMENTATION
…
Relevant imaging studies and other investigations:
Ms Black was referred for an X-ray of the cervical spine performed on 25 July 2008. This reported narrowing of the C5/6 and to a lesser extent C6/7 disc spaces with associated osteophytic lipping present. There was a little bony encroachment involving the neural foramina of C5/6 on the left side and a little sclerosis involving the facet joints with bony densities around the spinous processes in the lower cervical spine. The conclusion is that there was moderate to advanced degenerative change noted in the lower cervical spine.
5. CONCLUSIONS
This 61 year old lady presents with chronic neck pain and restricted neck movement. Her neck symptoms only developed following the MVA on 6 February 1995.
She also developed right shoulder injury from the accident and underwent surgery for a right subacromial bursitis/tendonitis syndrome.
Diagnosis and causation:
She has chronic cervical degeneration which is symptomatic resulting in chronic neck pain and restricted neck movement. She also has mild restriction of movement in the right shoulder but minimal shoulder pain.
The treatment of her cervical spine to date has been largely symptomatic. She appears to obtain benefit from monthly Bowen therapy sessions. It is probably advisable for her to take Paracetamol on a regular basis two tablets b.d. or tds.
She does not require any further treatment for her residual shoulder symptoms.
Ms Black has now permanently retired from the workforce and is living on her superannuation pension.
I did not feel that there were any non-organic factors or illness behaviour perpetuating her neck symptoms.
Conditions listed by both parties and caused by the compensable injury:
Cervical strain injury with subsequent cervical degeneration.
Conditions not listed by the parties but caused by the compensable injury(s):
Injury to the right shoulder joint with rotator cuff tendonitis/subacromial bursitis. Ms Black required arthroscopic acromioplasty.
Conditions listed by both parties and not caused by the compensable injury:
In my opinion the left shoulder rotator cuff tendonitis/bursitis in 1999 is a naturally occurring condition unrelated to the compensable injury.
6. ASSESSMENTS
Permanence:
Ms Black sustained a significant injury to her cervical spine as a result of the motor vehicle accident in 1995 and recent X-rays have revealed moderate to advanced degenerative change, particularly in the lower cervical spine. These changes are permanent.
She also sustained injuries to the right shoulder in the same motor vehicle accident for which she underwent surgery. She has been left with mild limitation in the range of movement in the right shoulder joint and these changes are permanent.
The symptoms in the left shoulder did not develop until long after the motor vehicle accident and in my opinion are not related to the accident.
Impairment:
The following injuries have given rise to the permanent impairment.
Degree of Whole Person Impairment (WPI) of Injuries that are permanent:
Body Part or System
Comcare Guide 2nd Ed
References (Chapter/Page/Table)
Permanent
(Yes/No)
Current % WPI
% WPI from pre-existing OR subsequent causes
% WPI due to injury
1
Cervical spine
Chapter 9, Page 114, Table 9.15
Yes
8%
Nil
8%
2
Right shoulder
Chapter 9, Page 97-99, Table 9.11.1(a)(b)(c)
Yes
5%
Nil
5%
…”
Analysis
35. The Tribunal understands that it is common ground that:
· the applicant has an “impairment”, within the meaning of s 24 of the SRC Act, in respect of her neck (cervical spine) and an “impairment”, within the meaning of s 24 of the SRC Act, in respect of each of her shoulders;
· each abovementioned impairment is “permanent” within the meaning of s 24 of the SRC Act;
· each abovementioned permanent impairment has resulted from an “injury”, within the meaning of ss 14 and 24 of the SRC Act, in respect of which the respondent is liable, under s 14(1) of the SRC Act, to pay compensation to the applicant.
The matter which is in dispute, and which it is necessary for the Tribunal to determine, is whether the respondent is also liable to pay permanent impairment compensation to the applicant pursuant to s 24 of the SRC Act. Pursuant to subss (5) and (7) of s 24 of the SRC Act, the respondent will be so liable if the degree of the applicant’s permanent impairment resulting from “an injury” is at least 10% in accordance with the provisions of the approved Guide. Thus, in order to determine whether the respondent is so liable, it will be necessary for the Tribunal to determine, in accordance with the provisions of the approved Guide:
· the degree of permanent impairment of the applicant’s neck (cervical spine);
· the degree of permanent impairment of the applicant’s right shoulder;
· the degree of permanent impairment of the applicant’s left shoulder; and
· whether the degree of the applicant’s permanent impairment resulting from “an injury”, within the meaning of s 24(1) of the SRC Act, is at least 10%.
The degree of permanent impairment of the applicant’s neck
36. Dr Hayes, in his report of 6 August 2008 (see paragraph 34 above), has opined that the degree of permanent impairment of the applicant’s cervical spine, in accordance with Table 9.15 in the approved Guide, is 8%. Neither party has disputed the correctness of that assessment.
37. On the basis of Dr Hayes’ report, the Tribunal finds that the degree of permanent impairment of the applicant’s cervical spine, in accordance with Table 9.15 in the approved Guide, is 8%.
The degree of permanent impairment of the applicant’s right shoulder
38. Dr Hayes, in his abovementioned report, has opined that the degree of permanent impairment of the applicant’s right shoulder, in accordance with Tables 9.11.1a, 9.11.1b and 9.11.1c in the approved Guide, is 5%. Neither party has disputed the correctness of that assessment.
39. On the basis of Dr Hayes’ report, the Tribunal finds that the degree of permanent impairment of the applicant’s right shoulder, in accordance with Tables 9.11.1a, 9.11.1b and 9.11.1c in the approved Guide, is 5%.
The degree of permanent impairment of the applicant’s left shoulder
40. Dr Hayes, in his abovementioned report, did not provide an assessment of the degree of permanent impairment of the applicant’s left shoulder – presumably because of his opinion (as expressed in that report) that the applicant’s left shoulder condition is not related to the relevant motor vehicle accident of 6 February 1995. The Tribunal notes that on 19 November 1999 the respondent accepted liability under the SRC Act to pay compensation to the applicant in respect of her left shoulder condition (see paragraph 20 above), and, notwithstanding Dr Hayes’ opinion, it did not dispute that liability in the present case.
41. Although Dr Hayes did not provide an assessment of the degree of permanent impairment of the applicant’s left shoulder, he did, in his abovementioned report, record his findings, on clinical examination, in respect of abduction, forward flexion and internal/external rotation of the applicant’s left shoulder (although he did not record a finding in respect of adduction or extension). Neither party has disputed the validity of any of those findings.
42. On the basis of Dr Hayes’ findings (as recorded in his abovementioned report) in respect of abduction, forward flexion and internal/external rotation of the applicant’s left shoulder, the Tribunal finds that the degree of permanent impairment of the applicant’s left shoulder, in accordance with Tables 9.11.1a, 9.11.1b and 9.11.1c in the approved Guide, is at least 2%. Having regard to the whole of Dr Hayes’ recorded findings in respect of the applicant’s left shoulder, the Tribunal is satisfied, and finds, that the degree of permanent impairment of that shoulder, in accordance with Tables 9.11.1a, 9.11.1b and 9.11.1c in the approved Guide, is less than 5%.
Is the degree of the applicant’s permanent impairment resulting from “an injury”, within the meaning of s 24(1) of the SRC Act, at least 10%?
43. In order to answer the above question the Tribunal must first determine whether the permanent impairment of the applicant’s cervical spine and the permanent impairment of each of her shoulders result from a single “injury” (within the meaning of s 24(1) of the SRC Act) or whether each of those permanent impairments results from a separate and distinct “injury” (within the meaning of s 24(1) of the SRC Act). If, as contended by the applicant, those permanent impairments have all resulted from a single injury, it will be appropriate to combine the abovementioned scores/values for those impairments using the Combined Values Chart in Appendix 1 of Part 1 of the approved Guide which, in the applicant’s case, will produce a whole person permanent impairment of at least 15% resulting from that injury in respect of which compensation will be payable to the applicant in accordance with ss 24 and 27 of the SRC Act. If, on the other hand, each of the applicant’s permanent impairments results from a separate and distinct “injury” (within the meaning of s 24(1) of the SRC Act), as contended by the respondent, the Combined Values Chart will, so the respondent contends, be inapplicable and the consequence will be that the degree of the applicant’s permanent impairment resulting from each “injury” is less than 10% (namely, 8% in the case of the cervical spine, 5% in the case of the right shoulder, and at least 2% but less than 5% in the case of the left shoulder) and compensation is, therefore, not payable to the applicant in respect of any of those injuries in accordance with s 24 of the SRC Act.
44. Whether the permanent impairment of the applicant’s cervical spine and the permanent impairment of each of her shoulders result from a single injury, or, alternatively, whether each of those permanent impairments results from a separate and distinct injury, is a medical question. The significant medical evidence before the Tribunal in respect of that question may be summarised as follows:
· Dr Singh, in his report of 18 November 1999, opined unequivocally that the applicant, in the relevant motor vehicle accident of 6 February 1995, sustained an injury to her neck and an injury to each of her shoulders (paragraph 28 above);
· Dr Cheah, in his reports of 30 October 1996 and 17 April 1997, opined that the applicant’s presentation was consistent with her having suffered, in the relevant motor vehicle accident, a neck injury (namely, “cervical spinal strain injury”) and a right shoulder injury (namely, “right sided rotator cuff tendonitis”) (paragraph 31 above);
· Mr Wang, in his report of 14 April 1997, noted that the applicant had “advanced symptoms for rotator cuff tendonitis” in her right shoulder following her motor vehicle accident in February 1995, and he subsequently performed arthroscopic acromioplasty surgery on the applicant’s right shoulder on 22 April 1997 (paragraph 32 above);
· Mr Wang subsequently also performed arthroscopic acromioplasty surgery on the applicant’s left shoulder on 2 December 1999 (paragraph 33 above);
· Dr Hayes, in his report of 6 August 2008, opined that the applicant:
-“sustained a significant injury to her cervical spine as a result of the motor vehicle accident in 1995”;
-“also sustained injuries to the right shoulder in the same motor vehicle accident”, namely, “injury to the right shoulder joint with rotator cuff tendonitis/subacromial bursitis”;
-suffered “left shoulder rotator cuff tendonitis/bursitis” in 1999 (unrelated to the 1995 motor vehicle accident);
-has a permanent impairment of her neck resulting from her abovementioned cervical spine injury; and
-has a permanent impairment of her right shoulder resulting from her abovementioned right shoulder injury (paragraph 34 above).
In relation to the abovementioned summary of the significant medical evidence in this matter, the Tribunal notes that:
· Dr Cheah was not requested to, and did not, express an opinion regarding the applicant’s left shoulder;
· Mr Wang was not requested to, and did not, express an opinion regarding the relationship (if any) between the applicant’s left shoulder condition and the relevant motor vehicle accident of 6 February 1995;
· Dr Hayes did not expressly state that the applicant has a permanent impairment of her left shoulder, nor did he express an opinion as to whether the applicant’s left shoulder injury has resulted in a permanent impairment of her left shoulder (presumably, the Tribunal infers, because he was of the opinion that the applicant’s left shoulder injury was not causally related to the relevant motor vehicle accident of 6 February 1995).
45. On the basis of the whole of the evidence before it, the Tribunal is satisfied, and finds, that each of the applicant’s relevant permanent impairments results from a separate and distinct “injury”, within the meaning of s 24(1) of the SRC Act, as follows:
· the applicant has a permanent impairment of her neck which results from an “injury” to her cervical spine, namely, a cervical spine strain injury, which she suffered in the relevant motor vehicle accident of 6 February 1995;
· the applicant has a permanent impairment of her right shoulder which results from an “injury” to her right shoulder, namely, rotator cuff tendonitis, which she sustained in the abovementioned motor vehicle accident; and
· the applicant has a permanent impairment of her left shoulder which results from an “injury” to her left shoulder, namely, rotator cuff tendonitis, which she sustained in the abovementioned motor vehicle accident.
The degree of the applicant’s permanent impairment
46. It follows from the abovementioned findings that the Tribunal does not regard the present case as one involving the sustaining of a single injury which has resulted in multiple permanent impairments, but rather as one involving the sustaining of multiple separate and distinct injuries, in a single incident, each of which has resulted in a permanent impairment: see Canute v Comcare (2006) 226 CLR 535 at 545. Accordingly, the Tribunal accepts the respondent’s contention that the Combined Values Chart in Appendix 1 of Part 1 of the approved Guide is inapplicable for the purpose of determining the degree of the applicant’s permanent impairment in accordance with s 24(5) of the SRC Act.
47. The question also arises whether it is appropriate to add the scores/values of the applicant’s permanent impairments in order to determine her “whole person” permanent impairment for the purposes of s 24 of the SRC Act. In this connection the Tribunal notes the following passage in the Principles of Assessment in Part 1 of the approved Guide (at p13):
“ … where two or more injuries give rise to different whole person impairments, each injury is to be assessed separately and the final scores for each injury (including any combined score for a particular injury) added together.” (original emphasis)
48. In Canute v Comcare (2006) 226 CLR 535 the High Court of Australia, referring to the SRC Act, said (at pp 539, 541, 542, 548):
“ The concept of ‘an injury’ is a term of pivotal importance in the structure of the Act. Section 24(1) … provides that Comcare’s liability to pay compensation arises in respect of ‘an injury’. Further, Comcare’s liability pursuant to s 24(1) also arises with respect to ‘an injury’ which results in ‘a permanent impairment’. …
Section 24(5) of the Act is expressed in terms of ‘the degree of permanent impairment of the employee.’ … The definition of ‘impairment’ (and by extension the concept of ‘permanent impairment’) is expressed in terms of effects on bodily parts, systems and functions. This disaggregated sense of the word is reinforced by the use of the indefinite expression ‘a permanent impairment’ in s 24(1). Textually, the Act assumes that ‘an injury’ may result in more than one ‘impairment’.
Content is given to the expression ‘degree of permanent impairment of the employee’ by reference to the Guide to the Assessment of the Degree of Permanent Impairment (the Guide), to which s 24(5) refers. The Guide is subordinate legislation which is to be prepared by Comcare and approved by the Minister pursuant to s 28 of the Act. …
…
… it is important to remember that recourse to the criteria and methodologies set out in the Guide is only necessary once the key statutory criterion of the occurrence of ‘an injury’ (which resulted in a least one permanent impairment) has been fulfilled. The Guide is to be approached through the prism of each ‘injury’. The terms of s 24(5) are quite clear; Comcare is to assess the degree of permanent impairment of the employee ‘resulting from an injury’. Similarly, in s 24(7), the threshold permanent impairment of the employee of 10 per cent affects the amount of compensation payable ‘under this section’, that is, ‘in respect of the injury’ (s 24(1)).
The scheme of the Act proceeds in this way from the occurrence of ‘an injury’, in the defined sense. As previously remarked, the Act assumes that more than one ‘injury’ may occur. Therefore it is not correct to say that s 24(5) imports a ‘whole person’ approach to the determination of the degree of permanent impairment. That ignores the centrality of ‘an injury’ to the scheme upon which Comcare’s liability to compensate depends.
…
… It is true that the Guide seeks to provide for the assessment of ‘the degree of permanent impairment of the employee’ on a whole of person basis. But, as indicated earlier in these reasons, s 24(5) of the Act imposes a duty upon Comcare to determine ‘the degree of permanent impairment of the employee resulting from an injury’. It is the occurrence of ‘an injury’ which both actuates and defines the ambit of Comcare’s duty pursuant to s 24 of the Act. Once that duty has been performed, sub-ss (3) and (4) of s 24 operate, in a self-executing way, to quantify the amount of compensation payable by Comcare. That amount is payable in satisfaction of Comcare’s liability which arises ‘in respect of the injury’ under s 24(1). The Act only adopts the ‘whole person impairment’ approach with respect to permanent impairments resulting from each ‘injury’. …” (original emphasis)
49. Although the High Court in Canute was referring to the first edition of the approved Guide, in which the passage quoted in paragraph 47 above does not appear, the Tribunal is of the opinion that that passage (whose wording, it seems to the Tribunal, is somewhat ambiguous) is to be read and understood in conformity with the High Court’s interpretation of subss (1), (5) and (7) of s 24 of the SRC Act in Canute. Read and understood in that way, the above-quoted passage does not mandate the adding together of scores/values for different “whole person impairments” resulting from two or more injuries in order to assess the total “whole person impairment” for the purpose of determining whether compensation is payable under s 24 of the SRC Act.
50. In the light of the abovementioned analysis the Tribunal finds as follows:
· the applicant has a permanent impairment of her neck, the degree of which is 8% in accordance with Table 9.15 in the approved Guide, which results from “an injury” (within the meaning of s 24(1) of the SRC Act), namely, a cervical spine strain injury;
· the applicant has a permanent impairment of her right shoulder, the degree of which is 5% in accordance with Tables 9.11.1a, 9.11.1b and 9.11.1c in the approved Guide, which results from “an injury” (within the meaning of s 24(1) of the SRC Act), namely, rotator cuff tendonitis of the right shoulder;
· the applicant has a permanent impairment of her left shoulder, the degree of which is at least 2% but less than 5% in accordance with Tables 9.11.1a, 9.11.1b and 9.11.1c in the approved Guide, which results from “an injury” (within the meaning of s 24(1) of the SRC Act), namely, rotator cuff tendonitis of the left shoulder.
It is not appropriate to combine the abovementioned permanent impairment scores/values using the Combined Values Chart in Appendix 1 of Part 1 of the approved Guide, or to add those scores/values, in order to determine the “whole person impairment” of the applicant for the purposes of s 24 of the SRC Act. The Tribunal finds, therefore, that the degree of permanent impairment of the applicant resulting from “an injury”, within the meaning of s 24(1) of the SRC Act, is less than 10%.
Conclusion
51. The Tribunal concludes, in accordance with s 24(7)(b) of the SRC Act, that compensation is not payable to the applicant pursuant to s 24 of the SRC Act in respect of her cervical spine strain injury, her right shoulder rotator cuff tendonitis injury or her left shoulder rotator cuff tendonitis injury.
Decision
52. For the above reasons the Tribunal affirms the decision under review.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
Signed: ...............[sgd D Brodie]........................
Associate
Date of Hearing 8 July 2009
Date of Decision 12 August 2009
Counsel for the Applicant Mr T Hammond
Solicitor for the Applicant Slater & Gordon
Counsel for the Respondent Mr T Howe QC
Solicitor for the Respondent Australian Government Solicitor
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