King and Comcare
[2011] AATA 500
•22 July 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 500
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/4295
GENERAL ADMINISTRATIVE DIVISION ) Re AIDAN KING Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr R G Kenny, Senior Member Date22 July 2011
PlaceBrisbane
Decision The Tribunal:
(1) affirms the determination under review as it relates to the claim for permanent impairment of sprain of shoulder and upper arm (left) and adhesive capsulitis of shoulder (L);
(2) sets aside the determination under review as it relates to adjustment reaction with depressive reaction and substitutes its decision that:
(i) Comcare is liable to pay compensation for permanent impairment of that condition;
(ii) the matter of calculation of compensation at 10% under Table 5.1 of the Guide be remitted to Comcare; and
(iii) costs are payable to the applicant in accordance with the Tribunal’s general practice direction.
.................[Sgd]...................
Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – Acceptance of liability for shoulder and upper left arm, adjustment reaction with depressive reaction and adhesive capsulitis of left shoulder – Rejection of claim for permanent impairment – Surgical procedure not constituting arthroplasty – American Medical Association’s Guides to the Evaluation of Permanent Impairment(5th edn) not applicable – Impairment under Table 9.11 and Table 5.1 of Guide to the Assessment of the Degree of Permanent Impairment (2nd edn) – Whole person impairment of 10% - Comcare liable for compensation for permanent impairment – Decision under review set aside
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 14, 24, 27
Comcare v Broadhurst [2011] FCAFC 39; (2011) 120 ALD 228
Re Dwight v Comcare [2006] AATA 730
Staines v Comcare [2005] AATA 858REASONS FOR DECISION
22 July 2011 Mr R G Kenny, Senior Member BACKGROUND
1. In accordance with s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”), Comcare accepted liability for conditions claimed by Mr King to be related to his employment. The conditions and acceptance dates were: sprain of shoulder and upper left arm on 25 May 2006; adjustment reaction with depressive reaction on 11 June 2008; and adhesive capsulitis of left shoulder on 11 February 2009. On 7 November 2008, Mr King made a claim for permanent impairment under ss 24 and 27 of the Act in relation to both his shoulder condition and his psychiatric condition. In a determination dated 2 February 2009, Mr King’s claim in relation to his shoulder condition was rejected by Comcare. That determination was affirmed in a reviewable decision on 25 June 2009. Mr King’s claim in relation to his psychiatric condition was rejected by Comcare on 28 August 2009. It was agreed by the parties that the hearing by the Tribunal relates to Mr King’s permanent impairment for both his shoulder condition and his psychiatric condition.
LEGISLATION AND ISSUES
2. Liability to pay compensation for permanent impairment is determined under s 24 of the Act, which reads:
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.
(7A) Subject to section 25, if:
(a)the employee has a permanent impairment that is a hearing loss; and
(b)Comcare determines that the binaural hearing loss suffered by the employee is less than 5%;
an amount of compensation is not payable to the employee under this section.
(8) Subsection (7) does not apply to any one or more of the following:
(a)the impairment constituted by the loss, or the loss of the use, of a finger;
(b)the impairment constituted by the loss, or the loss of the use, of a toe;
(c) the impairment constituted by the loss of the sense of taste;
(d) the impairment constituted by the loss of the sense of smell.
(9) For the purposes of this section, the maximum amount is $80,000.
3. Where compensation is payable under that provision, compensation for non‑economic loss is then determined under s 27 of the Act. The “Guide” referred to in s 24(5) of the Act is the Guide to the Assessment of the Degree of Permanent Impairment (2nd edition) as published by Comcare in 2006, in accordance with s 28 of the Act. The Guide provides for the assessment of a shoulder condition in Table 9.11 and sets out an introduction, which includes the following:
9.11 Shoulders
Table 9.11.1a, Table 9.11.1b and Table 9.11.1c (see pages 98-99) assess impairments to range of motion of the shoulders, including ankylosis.
…
Where an arthroplasty procedure has been undertaken, refer to the edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment current at the date of the assessment…
4. It was common ground between the parties that the appropriate impairment rating in relation to Mr King’s shoulder condition under Tables 9.11.1a, 9.11.1b and 9.11.1c of the Guide is 7% whole person impairment (“WPI”). However, Mr Pope, for the applicant, submitted that the procedure which Mr King underwent was an arthroplasty and that, in accordance with the introductory note to Table 9.11 of the Guide, the assessment ought be made under the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the AMA Guide). For the respondent, Ms Callan submitted that the procedure which Mr King underwent was not an arthroplasty and that the use of the Guide was required. It is not in dispute that any reference to the AMA Guide is to the 5th edition.[1]
[1] See Comcare v Broadhurst [2011] FCAFC 39; (2011) 120 ALD 228.
5. Part 16.7 of the AMA Guide deals with Upper Extremities. Section 16.7b is headed “Arthroplasty” and includes the comment that “resection arthroplasty of a joint may be carried out with or without implant replacement”. Table 16-27 is headed “Impairment of the Upper Extremity after Arthroplasty of Specific Bones or Joints” and, in allocating an impairment rating for the shoulder, a distinction is made between an Implant Arthroplasty and a Resection Arthroplasty. Mr Pope submitted that assessment following an arthroplasty was not confined to Table 16-27 and that other tables, such as Table 16-18 of the AMA Guide (which is concerned with range of movement), ought be used. Consistent with her submission that Mr King did not undergo an arthroplasty, Ms Callan contended that no tables in the AMA Guide were relevant.
6. Chapter 5 of the Guide relates to psychiatric assessment and, in so far as relevant, reads:
Chapter 5 – Psychiatric Conditions
5.0 IntroductionFigure 5-A: Activities of Daily Living
Activity Examples Self care, personal hygiene.
Bathing, grooming, dressing, eating, eliminating.
Communication.
Hearing, speaking, reading, writing, using keyboard.
Physical activity.
Standing, sitting, reclining, walking, stooping, squatting, kneeling, reaching, bending, twisting, leaning, carrying, lifting, pulling, pushing, climbing, exercising
Sensory function.
Tactile feeling.
Hand functions.
Grasping, holding, pinching, percussive movements, sensory discrimination.
Travel.
Driving or travelling as a passenger.
Sexual function.
Participating in desired sexual activity.
Sleep.
Having a restful sleep pattern.
Social and recreational.
Participating in individual or group activities, sports activities, hobbies.
Table 5.1: Psychiatric conditions
% WPI
Description of Level of Impairment
0
Reactions to stressors of daily living without loss of personal or social efficiency; and
· Capable of performing Activities of Daily Living without supervision or assistance.
5
Despite the presence of one of the following employee is capable of performing Activities of Daily Living without supervision or assistance:
· reactions to stressors of daily living with minor loss of personal or social efficiency;
· lack of conscience directed behaviour without harm to community or self;
· minor distortions of thinking.
10
Despite the presence of more than one of the following employee is capable of performing Activities of Daily Living without supervision or assistance:
· reactions to stressors of daily living with minor loss of personal or social efficiency;
· lack of conscience directed behaviour without harm to community or self;
· minor distortions of thinking.
15
Any one of the following accompanied by a need for some supervision and direction in Activities of Daily Living:
· reactions to stressors of daily living which cause modification to daily living patterns;
· marked disturbances in thinking;
· definite disturbance in behaviour.
20
Any two of the following accompanied by a need for some supervision and direction in Activities of Daily Living:
· reactions to stressors of daily living which cause modification of daily living patterns;
· marked disturbance in thinking;
· definite disturbance in behaviour.
Notes to Table 5.1.
1. Table 5.1 includes psychoses, neuroses, personality disorders and other diagnosable conditions. The assessment should be made on optimum medication at a stage where the condition is reasonably stable.
2. Supervision means the immediate presence of a suitable person, responsible in whole or in part for the care of the employee
3. Assistance means the provision of assistance to the employee in performing the activities of daily living by a suitable person, responsible in whole or in part for the care of the employee
4. Direction means the provision of direction to the employee by a suitably qualified person, responsible in whole or in part for the care of the employee
5. Suitable person means a person capable of responsibly caring for the employee in an appropriate way6. Suitably qualified person means a person with the necessary experience and skills to provide appropriate direction to the employee.
7. At issue for the Tribunal is whether the Guide or the AMA Guide should be used for assessment of Mr King’s shoulder condition. That will depend upon whether he underwent an arthroplasty procedure. The appropriate impairment rating must then be assessed although, as noted above, the parties accept that the appropriate rating under the Guide, if that is to be used, is 7% WPI. Also at issue is the level of Mr King’s psychiatric condition in accordance with Table 5.1 of the Guide. Mr Pope submitted that a rating of 20% should be allocated. Ms Callan submitted that a rating no higher than 5% should be allocated.
EVIDENCE
The applicant
8. At the time of injuring his shoulder, Mr King was employed as a protective service officer with the Australian Federal Police (AFP) at the Gold Coast. He had performed an operational role in various immigration centres and was a team leader with responsibilities in training of other officers, in counter-terrorist matters and in bomb appraisal. Since the injury, he remained with the AFP but his role had changed because of physical limitations associated with his shoulder. He was transferred to Canberra in July 2008 and then back to the Gold Coast later that year where he carried out an administrative role. He also worked for a period at the Brisbane Airport.
9. Presently, Mr King is based in Brisbane and his supervisor is in Canberra. He is the Regional Security Officer for Queensland. He travels for work on one day per week to Robina. In a statement dated 1 March 2010 he wrote that his work involves completing reports, attending meetings and providing technical advice and support on task-based references. In his evidence, he referred to his making PowerPoint presentations to staff in both Cairns and Brisbane. He said that, due to shoulder pain, he requires regular rest breaks and constant monitoring of his position. He described himself as lacking in concentration, being easily distracted and generally disinterested in his office-based role. Mr King agreed, however, that he carries out his work in a professional manner. He wrote that he experiences chronic pain in the shoulder, neck and back and numbness in his left arm and hand. Mr King said that he requires personal and household assistance and is aided in this by his fiancée. He needs help with dressing, is unable to complete household tasks including lawn-mowing and gardening and is unable to engage in heavy lifting or strenuous activity. In his evidence, Mr King said that some of these restrictions were associated with his physical limitations but that his mental attitude to them was also relevant. He said that he engages in binge eating and has gained weight. He described a lack of sleep and an unwillingness to rise from bed in the morning. Mr King said that his personal and social relationships, particularly with his fiancée, had been severely affected since he was injured but had now plateaued, and his marriage plans had been deferred. He said that he has learned to better control his mood swings and can now manage his outbursts. He said that he rarely attends social gatherings with friends, has increased his alcohol consumption and has had suicidal ideations but not for 12 months or so. Mr King said that his psychiatric symptoms had not improved and he could not recall telling psychiatrist Dr Rowe that they had done so.
10. Mr King said that he works a 40-hour week which is increased by overtime sessions, when he is required to undertake tasks such as providing an executive brief or travelling to Canberra. He said that his job was a responsible one which required a knowledge of and ability to assess security issues as well as the capacity to provide reports on them. He said that he approaches his work with focussed concentration on the tasks to be performed. He said that he wishes to stay employed and, therefore, performs his duties in a manner which ensures he will not be adjudged as underperforming. Mr King agreed that the appraisal of his supervisor was set out in glowing terms. He said that his work is the most stable that it has been since his shoulder injury and that he no longer felt he was being pushed out of his job.
11. Mr King agreed that his rehabilitation case manager at work was Ms Carmel Kuslap. He said that he rarely spoke to her and that his workstation was not in her direct vision in the office where they both work.
Carmel Kuslap.
12. Ms Kuslap is Mr King’s rehabilitation case manager in his work with the AFP. She works in the same location and floor level as Mr King and sees him on a regular basis. She confirmed that Mr King has the role of Regional Security Officer. Attached to her statement, dated 27 May 2011, was a copy of the Role Scope and essential requirements of that position. Ms Kuslap also attached Performance Development Agreements (PDAs) assessing Mr King’s work performance for the periods March 2010 to August 2010 and September 2010 to February 2011.
13. Ms Kuslap reported that Mr King had performed well in his role, that he had fulfilled his objectives and is recognised for his contributions. She described him as fitting in well at the Brisbane and Robina offices, that he has a generally quiet nature and goes about his work in an unobtrusive manner. She considered him to be knowledgeable, intelligent and professional. She confirmed that Mr King’s work is autonomous from both the Brisbane and Robina offices because the management of his team is carried out in Canberra.
Other evidence
14. In evidence was an AFP document setting out the Role Scope of a Regional Security Officer. It reads:
Role Scope
The Regional Security Officers provide advice to appointees operating in their area of operations (AO) on the threats, vulnerabilities, security risks and appropriate countermeasures pertaining to AFP activities. Regional Security Officers also conduct first line analysis of security related reporting and initial investigations of security incidents, breaches and violations. Security officers have reporting obligations to the Manager Security (MSec) as well as managers of officers.
Essential Requirements
·Top Secret (NV) Security Clearance of ability to obtain
·Undertake the Certificate IV in Government (Investigations) or hold equivalent qualifications.
·Undertake the Certificate IV in Security and Risk Management or hold equivalent qualifications.
·Travel (National/International) will be required.
15. Mr King’s PDAs for the periods March 2010 to August 2010 and September 2010 to February 2011 were in evidence. The first of those records the following assessment of Mr King:
Aidan has shown considerable commitment to his role as RSO Qld. Aidan has provided advice and assistance on security related matters with a high level of competence and professionalism in briefing and educational presentations and also as part of his daily interaction with AFP staff and management in Brisbane, Gold Coast and Cairns.
Aidan is self-motivated and takes personal responsibility for achieving objectives and managing his work through to completion. Aidan requires minimal supervision to achieve high quality outcomes and is able to adapt to changing priorities as evidenced by the positive feedback from AFP management in relation to his performance.
During the review period Aidan undertook not only the role and responsibilities of RSO Brisbane and Gold Coast, but also for Cairns. Aidan set high personal expectations and took personal responsibility for ensuring that security related issues were highlighted and addressed appropriately. This additional workload has been a commitment that Aidan has taken seriously and he has delivered on that commitment with enthusiasm and a high level of competence.
Aidan is a competent and valuable team member who has shown good judgement in the face of competing or complex priorities as part of deciding on his day to day work tasks. Aidan has a clear understanding of the RSO Role and how this links to the overall objectives of the AFP.
Aidan consistently demonstrated a high degree of professionalism in his activities and undertakings during the review period. Aidan’s knowledge of the wider AFP environment has been enhanced by his active injection into activities that support local and other business area needs. Aidan promotes a positive side to all activities and doesn’t allow setbacks to negatively impact on his drive and commitment in achieving outcomes.
Aidan is a valued member of the team who is always willing to assist. He provides feedback which is open, honest, well thought out and I have valued his opinion.
16. In the latter report, Mr King is described as “an effective ambassador for Security” who has “met Team Leader expectations for the review period”.
Medical Evidence – Orthopaedic
17. Dr Terry Hammond, specialist in shoulder surgery, conducted two surgical procedures on Mr King’s shoulder. In his report, dated 1 August 2006, Dr Hammond described the procedure on 27 July 2006 as a “standard two portal arthroscopy” requiring a “posterior labral debridement” and an “avulsed labrum” repair using “one lupine anchor”. Dr Hammond operated again on Mr King’s shoulder on 5 December 2007. In his report dated 6 December 2007, he described the procedure as involving the performance of “a pan capsular arthroscopic shoulder plication” and use of a “posterior portal, anterior and mid-gleno portal and antero superior portal with an additional stab portal to insert postero inferior anchors”. He wrote that the “capsule was thoroughly rasped in all areas to provide a bleeding surface”. The report continued:
A posterior plication was performed using anchors placed posteriorly at 5 o’clock and 4 o’clock, each using a lupine anchor and with a 1.5 cm superior and medial capsule plication and an additional 1 Ethibond plication suture was used at the 3 o’clock position. This gave an excellent capsule plication throughout the posterior recess.
An inferior capsule plication was performed at 6 o’clock using 1 Ethibond simple suture placed through the labrum. 1.5 cm of plication was performed.
Anterior plication was performed using Lupine anchors 8 o’clock and 9 o’clock on the anterior glenoid each with 2 cm superior and medial plication.
These procedures gave excellent reduction of the posterior, inferior and anterior recess and allowed the humeral head which had lay in an anteriorly dislocated position to be centred on the glenoid.
18. Dr John Pentis, orthopaedic surgeon, completed reports dated 10 September 2009, 30 November 2009, 4 August 2010 and 15 September 2010. He described the procedures on Mr King’s shoulder as an “arthroplastic procedure and a labrum repair using a reefing procedure”. He assessed incapacity at 12 – 15% under the AMA Guide. He assessed it as 7.5% under Table 9.11 of the Guide. On 4 August 2010, Dr Pentis wrote:
…arthroplasty is a surgical procedure where a refashioning of the joint is performed. It is designed to relieve pain or restore movement or both. It can be of varying procedures where one articular bone is excised or a whole bone is excised e.g. in the wrist. An inter-position arthroplasty where a material is placed in between the arthritic joint subsequent to excision of parts of it and even joint replacement, total joint replacement, so an arthroplasty where there is a replacement of the joint surfaces by ceramics, or metal or plastic.
Repairing the labrum is done by debriding any loose fragments and re-approximating the labrum with surgical sutures.
Reefing procedure, where there is a laxity of the capsule in the glenohumeral ligaments, these can be tightened by reefing, that is, either excision or overlapping repair to tighten structure.
Even though the procedure [Mr King] had is not an excision arthroplasty there have been attempts to refashion the joint structures eg the capsule and ligaments and this could be quoted as an arthroplastic procedure.
19. In his report, dated 9 September 2010, Dr Pentis again wrote that the procedure that Mr King underwent:
... could be considered as an arthroplasty as it was a procedure performed on the joint with subsequent reefing of the capsular structure, that is, an operative procedure on the joint, a re-fashioning of the joint which is basically an arthroplasty.
20. In his evidence, Dr Pentis was referred to the AMA Guide. He said that Table 16-27 could not be used because Mr King did not have either of two procedures there described ie Implant Arthroplasty and Resection Arthroplasty. Dr Pentis referred to the concept of arthroplasty as it was understood in the 1950s and said that this had changed over time. He said that it was open to use Table 16‑18 in the AMA Guide, which he described as a generalised table whereby the maximum level of impairment is stated and then an estimate made of the fraction of that maximum which is present in a patient. Dr Pentis said that he did not utilise tables which are based on the measures of a patient’s range of movement in a joint because it was easy for a patient to a falsely represent his real range.
21. Dr H Khursandi, orthopaedic surgeon, completed reports on 2 February 2009, 2 March 2010, 13 April 2010 and 22 June 2010. Dr Khursandi described the first of Mr King’s procedures as an arthroscopic surgery of the left shoulder which included excision of a labral tear. He described the second procedure as further arthroscopic and capsular reconstruction and stabilisation of the shoulder with anchors. Dr Khursandi assessed Mr King’s impairment under Table 9.11 of the Guide at 7% WPI. In his final report, Dr Khursandi expressed the opinion that the AMA Guide should not be used to assess Mr King’s shoulder condition as he did not undergo an arthroplasty.
22. In his oral evidence, Dr Khursandi confirmed his opinion on assessment and the nature of Mr King’s surgery. He denied that the term arthroplasty could be used to describe any procedure to stabilize a joint, stating that it was a specific term to describe a specific procedure. He had read Dr Hammond’s report and said that the procedures he described did not amount to an arthroplasty. Dr Khursandi rejected any notion that the meaning of the term had been broadened since the 1950s and was limited to circumstances where there was an implant or a resection. He said that those two procedures were the focus of Table 16-27 of the AMA Guide. While Dr Khursandi agreed that the procedures undergone by Mr King improved the mobility of his shoulder, he said that this did not necessarily mean that he had undergone an arthroplasty because there are other surgical procedures which can bring about that same result.
23. Dr Khursandi rejected the suggestion that impairment may not be assessed by measuring a patient’s range of movement in a joint. He said that this was commonly done and was recognised in the Guide and the AMA Guide as appropriate to certain joints.
24. Included in the Statement of Facts and Contentions lodged on behalf of Mr King was a quote from The Encyclopedia of Surgery, in which the term Shoulder Resection Arthroplasty was defined as “surgery performed to repair a shoulder acromioclavicular joint” and as “surgery performed to relieve pain and restore range of motion by realigning and reconstruction of a dysfunctional joint”. Ms Callan also tendered an extract from the same source. It included the above definition. However, it then went on to declare that there were two types of arthroplastic surgery: joint resection and interpositional reconstruction. The former was described as involving removal of a portion of bone; the latter was described as involving the addition of a prosthetic disc between bones forming the joint.
Medical evidence – Psychiatric
25. In this matter, oral evidence was given by psychiatrist Dr Trevor Lotz, who completed reports on 16 February 2010, 14 September 2010 and by psychiatrist Dr William Rowe who completed reports on 21 August 2009, 25 February 2010 and 23 May 2011. A report, dated 29 May 2008, was also in evidence from psychiatrist Dr Eric de Leacy.
26. Dr de Leacy saw Mr King on 22 May 2008. At that time, he was not working because of his shoulder condition. Dr de Leacy diagnosed adjustment disorder.
27. Dr Lotz saw Mr King on 9 December 2009. In his first report, he confirmed that Mr King continued to have a psychiatric condition in the form of a chronic adjustment disorder. In the history he took from Mr King, he recorded that Mr King had lapses of concentration, was easily distracted and that this was often due to focus on his pain. He noted that Mr King had “suicidal thoughts and occasional plans” and had increased intolerance and irritability which caused arguments with his partner. Dr Lotz described increased alcohol consumption, an increase in weight, a sense of worthlessness and social withdrawal. Dr Lotz referred to medication taken by Mr King for his shoulder and an absence of such for his depression. He described Mr King as being co-operative, a coherent historian, as having no abnormalities of speech or thought but with dysthymic mood with mildly restricted affect.
28. In evidence, Dr Lotz said that Mr King required supervision and direction in activities of daily living such as in socialising with others and avoiding excessive alcohol and junk food consumption. He said that this was in the form of prompting by his partner. Dr Lotz was referred to Mr King’s PDA reports and considered that Mr King may be able to function at work by “keeping it together” until he returns home, where he may demonstrate problems to his partner. He agreed that, at face value, positive performance assessments by his supervisor in the workplace suggested some improvement in Mr King’s condition, but he believed that Mr King may not have felt as good about his performance as the performance appraisal read. Dr Lotz conceded that it was difficult to distinguish between limitations imposed by Mr King’s physical injury and his psychiatric condition.
29. Dr Lotz’s opinion was that Mr King had a permanent condition consistent with a level of impairment of 20% under Table 5.1 of the Guide. This was based on two of the factors at that level, viz having reactions to stressors of daily living which cause modification of daily living patterns and having definite disturbance in behaviour. In relation to the former, he referred to limited social interaction and the need for prompting by his partner to engage in social interaction, his irritability and argumentative behaviour; for the latter, he referred to Mr King being easily distracted, having concentration problems and being easily fatigued.
30. Dr Rowe saw Mr King on 21 August 2009 and again on 25 February 2010. In his first report, Dr Rowe set out a history obtained from Mr King. He noted that Mr King was working in Brisbane, having resisted efforts for him to transfer to Canberra, although he was required to work in Canberra and remain away from his partner from November 2008 until February 2009. He also noted that, as a compromise on return to Brisbane, Mr King had agreed to spend every third week in Canberra. Dr Rowe recorded feelings of impatience, irritability, anger and despondency, particularly in relation to his employment prospects. He described sleeping problems, increased alcohol consumption and weight fluctuations. Dr Rowe described Mr King as an excellent historian, with normal speech and with no obvious cognitive effects, psychotic features or any appearance of depression or anxiety. Dr Rowe concluded that there was no permanent impairment in Mr King from a psychiatric perspective.
31. In his second report, Dr Rowe noted that Mr King was no longer required to travel on a regular basis to Canberra as before. However, he described Mr King’s concern that his co-workers perceived him as ‘bludging’. He considered that Mr King was still not suffering from a formal psychiatric illness and that his overall condition had improved since he saw him on the previous occasion. Dr Rowe assessed Mr King’s level of impairment at 10% WPI under Table 5.1 of the Guide which he described as a “very generous” allocation.
32. In his evidence, Dr Rowe conceded that Mr King suffered from an adjustment disorder. He confirmed that Mr King had improved by the time he saw him on the second occasion and that Mr King had also advised him that he had improved. He also confirmed his assessment of 10% WPI and considered that this was consistent with the favourable performance assessment of Mr King in relation to his work capacity. Dr Rowe noted that the 15% and 20% levels of assessment in Table 5.1 of the Guide both required that Mr King have a need for supervision and direction in activities of daily living. Dr Rowe was referred to the activities of daily living in Figure 5-A of the Guide and expressed the opinion that there was no need by Mr King for supervision or direction in his carrying out of those activities because of any psychiatric condition. He referred to his work capacity and his obvious need to care for himself on his many absences from Brisbane when he was required to travel to Robina and Canberra. Dr Rowe noted Mr King’s evidence that he and his partner had placed their marriage plans on hold, but Dr Rowe considered that this was not necessarily related to any psychiatric condition.
CONSIDERATION
Permanent impairment
33. The requirements for permanent impairment are set out in s 24 of the Act. The parties have agreed that all of those requirements are met for both Mr King’s shoulder condition and his psychiatric condition, except for that relating to the degree of permanent impairment expressed as a percentage. I am satisfied that those concessions have been properly made. The terms of s 24(7) of the Act provide that no amount of compensation is payable if the degree of permanent impairment is determined at less than 10%.
Shoulder condition
34. Dr Pentis’ opinion was that Mr King underwent arthroplasty procedures on his shoulder. He conceded that, back in the 1950s, the term was used to describe the specific procedures identified in Table 16-27 of the AMA Guide ie Implant Arthroplasty and Resection Arthroplasty. However, his opinion was that, since then, the term has been used much more generally and he appeared to equate such a procedure with any form of reconstruction of the shoulder joint. Dr Khursandi was not of that opinion. His evidence was that the term had not been modified over time and that it continued to be identified with the two types of procedure described in the AMA Guide. I have noted the reference by Mr Pope to The Encyclopedia of Surgery. While I accept that arthroplasty constitutes surgery performed to relieve pain and restore range of motion by the realigning and reconstruction of a dysfunctional joint, I am satisfied, on the evidence of Dr Khursandi, that athroplasty is not the only form of surgery which will achieve that goal. The Guide requires the AMA Guide to be used when an arthroplasty is performed and I am satisfied that it is appropriate to take the meaning of the term “arthroplasty” as it is used in the AMA Guide. That meaning is the one adopted by Dr Khursandi. I am satisfied that neither of Mr King’s surgical procedures on his shoulder was an arthroplasty.
35. As Mr King did not undergo an arthroplasty, the assessment of his shoulder must be made under Table 9.11 of the Guide and not under the AMA Guide. Both Dr Pentis and Dr Khursandi have allocated a rating under that Table in the Guide and it is common ground between the parties that the appropriate allocation is 7% WPI. I am satisfied that this is the relevant assessment of Mr King’s shoulder condition for the purposes of the Act. Since that is less than the threshold of 10% as required under s 24(7) of the Act, compensation is not payable to Mr King for permanent impairment of that condition.
Psychiatric condition
36. The opinions of Dr Lotz and Dr Rowe on how Mr King’s condition impacts upon him are based on his self reporting in December 2009 and February 2010, respectively. Dr Lotz described Mr King as having lapses of concentration, easy distraction, fatigue, suicidal thoughts, along with increased intolerance, irritability and arguments with his partner. He also described modification by Mr King of daily living patterns and having definite disturbance in behaviour as well as a reliance on prompting by his partner to engage in various activities. Those descriptions are not reflected in Mr King’s PDAs, as set out above[2], for the 12-month period from March 2010 to February 2011. Clearly, these PDAs post-date Dr Lotz’s report. Dr Lotz suggested in his evidence that the favourable comments in the appraisals may not match Mr King’s own perception. However, in his evidence, Mr King did not dispute the content of the PDAs and agreed that they were “glowing” reports, that his job was a responsible one which required assessment of, and provision of advisory reports on, security issues and that he approaches those tasks with focussed concentration. He does this for 40 hours per week with overtime when required and this includes travel to different work-stations in Cairns, Robina and Canberra. I note that Dr Lotz acknowledged that the PDAs indicated that there may have been an improvement in Mr King’s condition since he saw him in December 2009.
[2] See paragraph 15 above.
37. Dr Lotz’s opinion was that Mr King had a permanent condition consistent with a level of impairment of 20% under Table 5.1 of the Guide. Of the three elements identified at that level, he nominated ‘reactions to stressors of daily living which cause modification of daily living patterns’ and ‘definite disturbance in behaviour’ as applicable to Mr King. At the 20% level of impairment, Table 5.1 requires that those elements be accompanied by a need for some supervision and direction in Activities of Daily Living. Dr Lotz’s evidence was that his opinion was based on his understanding that this was provided by Mr King’s partner in the sense that she prompted him in certain activities.
38. The terms “supervision” and “direction” are defined in the Notes to Table 5.1 as follows:
Supervision means the immediate presence of a suitable person, responsible in whole or in part for the care of the employee.
Direction means the provision of direction to the employee by a suitably qualified person, responsible in whole or in part for the care of the employee.
39. There is no evidence before me of the suitability of Mr King’s partner to provide supervision. However, I accept Dr Rowe’s opinion that he does not need some supervision or direction in activities of his daily living. In that regard, I am satisfied that mere prompting of Mr King by his partner does not equate to supervision as that term is defined. As to the element at the 20% level, which refers to “definite disturbance in behaviour”, Dr Lotz identified Mr King being easily distracted and fatigued, and having concentration problems. In that regard, I have noted the descriptions provided in his PDAs. These include references to him being self-motivated, taking personal responsibility, managing his work through to completion, requiring minimal supervision, setting high personal expectations, delivering on his commitment with enthusiasm and a high level of competence, being a competent and valuable team member, assuming an additional workload, having a high degree of professionalism and not allowing setbacks to negatively impact on his drive and commitment in achieving outcomes. Those descriptions are set out in a document assessing Mr King’s functioning at work over a 12 month period. They are not consistent with the examples provided by Dr Lotz to indicate a definite disturbance in his behaviour. Further, they are not consistent with the “Role Scope” which sets out the nature of Mr King’s duties with the AFP.[3] I also note that Dr Lotz agreed in his evidence that it was difficult to differentiate between Mr King’s limitations being due to a psychiatric condition as opposed to his shoulder condition.
[3] See paragraph 14 above.
40. Unlike the level of impairment at 20% in Table 5.1 of the Guide, those at 10% and below do not require a need for some supervision and direction in Activities of Daily Living. Dr Rowe’s evidence was that there was no such need in Mr King’s case and I accept his evidence in that regard. Dr Rowe allocated 10% under Table 5.1 of the Guide. He said that Mr King’s condition had improved in February 2010 as compared to his presentation six months earlier. He also said that Mr King had expressed that view to him.
41. At the 10% level of impairment, two of the three listed elements must be present. Ms Callan conceded that Mr King met the first of the three elements in that he had reactions to stressors of daily living with minor loss of personal or social efficiency. That was also the evidence of Dr Rowe and I am satisfied that the first element is met. As to the second element, Dr Rowe’s opinion was that Mr King did not demonstrate any lack of conscience directed behaviour in that there was no blurring by him of the sense of right and wrong which governed his behaviour. Ms Callan submitted that a distinction is drawn between that first factor and the third factor which embraces minor distortion of thinking.[4] She submitted that minor distortions of thinking arise with “comparatively unimportant or insignificant perversions of thinking”.[5] Ms Callan noted that Dr Rowe’s assessment in that regard was described by him as “generous” and submitted that Mr King’s situation had improved since Dr Rowe saw him. Despite that, in his evidence, Dr Rowe did not resile from his finding in relation to the third element and referred to some continuing difficulty with minor concentration and fatigue. He conceded that any distortions in Mr King’s thinking were “indeed minor”. Nonetheless, such minor distortions are sufficient to meet the requirements of the third element. On that basis, I am reasonably satisfied that the impairment for Mr King’s psychiatric condition is 10% under Table 5.1 of the Guide.
[4] Referring to Staines v Comcare [2005] AATA 858 at [58] – [59].
[5] Referring to Re Dwight v Comcare [2006] AATA 730.
DECISION
42. The Tribunal:
(1)affirms the determination under review as it relates to the claim for permanent impairment of sprain of shoulder and upper arm (left) and adhesive capsulitis of shoulder (L);
(2)sets aside the determination under review as it relates to adjustment reaction with depressive reaction and substitutes the decision that:
(i)Comcare is liable to pay compensation for permanent impairment of that condition;
(ii)the matter of calculation of compensation at 10% under Table 5.1 of the Guide be remitted to Comcare; and
(iii)costs are payable to the applicant in accordance with the Tribunal’s general practice direction.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.
Signed: ........................[Sgd]...........................................
Danielle Armstrong, Research AssociateDate/s of Hearing 8 and 9 June 2011
Date of Decision 22 July 2011
Counsel for the Applicant Mr M Pope
Solicitor for the Applicant Derek Geddes Lawyers
Counsel for the Respondent Ms S Callan
Solicitor for the Respondent Sparke Helmore Lawyers
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