Langston and Comcare - [2000] AATA 578

DECISION AND REASONS FOR DECISION [2000] AATA 578

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A1999/92

GENERAL ADMINISTRATIVE DIVISION          )
            Re     FIONA MAREE LANGSTON
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Pamela Burton, Senior Member

Date13 July 2000
PlaceCanberra

Decision The tribunal sets aside the decision under review and in substitution therefor decides that the applicant has a permanent impairment of her upper right arm of 10%. The respondent is to pay the applicant's reasonable costs as agreed or taxed.

...................(Sgd.).....................
Pamela Burton Senior Member
CATCHWORDS
COMPENSATION – scar to upper right arm – painful and embarrassing – whether impairment is permanent – whether level of impairment is at least ten percent under the authorised Guide – whether treatment for lengthy periods is required - whether condition being present and not easily reversible by medication precludes assessment of 10% impairment under Table 4.1 of the Guide.
Legislation
Safety Rehabilitation and Compensation Act 1988 ss24, 27, 28
Guide to the assessment of the degree of permanent impairment
Authorities
Commissioner for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Emery (1993) 32 ALD 147
Comcare v Ticsay (1992) 16 AAR 241
O'Rourke and Comcare (AAT 12152, 26 August 1999)
Gibbs and Comcare (AAT 9394, 30 March 1994)

REASONS FOR DECISION

13 July 2000 Pamela Burton, Senior Member

This is an application for review of the decision of an independent review officer of 23 February 1999 which affirmed the determination of Comcare's delegate of 29 October 1997 that Comcare was not liable to pay compensation for impairment from scarring to the applicant's upper right arm pursuant to sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 ("the Act").
At the hearing the applicant was represented by Ms Lorraine Gabriel, and Comcare, the respondent, was represented by Mr Geoffrey Johnson. The tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T-documents"), and the applicant tendered a medical report of Dr Baxter, medical officer, dated 14 September 1999 (Exhibit A) and clinical notes of Dr Lendow-Smith (Exhibit B). The applicant gave oral evidence at the hearing.
Issue
The only issue before the tribunal is whether the applicant has suffered a permanent impairment to her right upper arm of at least ten percent to meet the requirements of section 24 of the Act.
Contentions
The applicant contends that her right upper arm impairment is permanent and that the degree of impairment is at least ten percent, as assessed under Table 4.1 of the Guide to the assessment of the degree of permanent impairment ("the Guide"), the Guide approved under section 28 of the Act.
The respondent contends that the applicant does not suffer from an impairment which is permanent. In the alternative, the respondent contends that the applicant's impairment amounts to no more than 5% under Table 4.1 of the Guide.
The factual background
The applicant was born on 21 May 1971 and is married with children. She is a serving member of the Royal Australian Air Force ("the RAAF"). She joined the RAAF on 2 March 1989. She holds the rank of Sergeant and is based in Canberra.
On 19 October 1994 the applicant had two moles removed, a large one on her neck (measuring approximately half a centimetre in diameter) which caused her irritation as her collar rubbed against it, and a smaller one (half the size of the neck mole) on her right shoulder. At the time she attended the RAAF surgeon to have the larger mole removed she was advised to have the smaller mole removed at the same time as it tended to bleed. The excision of the mole on her neck caused her no problems, however the excision of the mole on her right shoulder caused her some difficulties before and after the stitches were removed. In evidence, the applicant stated that the stitches were far too tight and she sought medical assistance to have them loosened. The medical officer upon whom she attended had to "dig" to remove them.
The applicant was then referred to a plastic surgeon for revision surgery. After the procedure on 6 December 1996 the plastic surgeon assured her that the suture would be "beautiful". Again the applicant felt tightness in the area. She waited a few days and then had the stitches removed. After the stitches were removed the wound reopened. The applicant discovered this after she left the surgery and she was trying some clothes on in a shopping centre. She described seeing a big hole in her arm and, on seeing it, she said that she "nearly fainted". It required further stitching. The stitches were removed after ten days and the applicant was left with a symptomatic scar that causes her itchiness, pain and embarrassment.
The applicant's evidence is that the scar now causes her more discomfort and embarrassment than it did in 1996. She claims that the scar has changed in its appearance; that it has enlarged and instead of softening, the skin has become harder. She perceives the scar as disfiguring, and she has a genuine belief that people notice it, and that the scar is the overwhelming thing that they first notice about her. She said in evidence "I don't meet new people – my arm meets people. Everyone looks at my arm. They will look and ask about it. It impacts on my relationship with people. I can see the looks they give." The applicant gave examples of occasions when she attended functions and colleagues commented on the scar or asked about it. This apparently disturbed her.
The applicant allowed me to view the scar at close range. In my opinion the scar does not constitute such a disfigurement as would reasonably be expected to cause the degree of embarrassment clearly suffered by the applicant. The parties accept as accurate the description given of the scar by Dr Fry in his report of 14 February 1999 (T21, p.60) as 3.5 cm by 2 cm.
The applicant gave evidence of the physical discomfort and difficulties of movement the scar causes her. She said that she feels pain from the water pressure of the shower on the scar. She therefore has to wash it separately and pat it dry. She has altered the way in which she dresses; for example, reaching behind her back to do up the clasp of her brassiere causes pain. Instead she fastens the garment first at the front and turns it around before putting the straps over her shoulders. She puts her uniform on feet up, rather than over her head. She gave evidence of the RAAF's requirement that long hair has to be secured in a bun. She says that reaching up to her head causes her arm to throb. She does her hair in stages and it takes a lot more time to style her hair.
The applicant's RAAF uniform covers the scar. However, the uniform is starched and irritates the scar unless the scar is covered with a non-irritant band-aid or gauze which she habitually uses. The applicant gave evidence that she previously enjoyed wearing sleeveless garments and that her wardrobe still contained many sleeveless clothes which had not yet worn out. She can and does apply a band-aid or gauze where the sleeves are tight or irritate the scar. She plans to change her style of dress, and as her current wardrobe is replaced over time, she will suffer less embarrassment. Light cotton sleeves are unlikely to cause the scar to be sensitive.
The applicant drives to work. She said that by the time she arrives her arm is throbbing. At work she encounters some difficulties. She is a signals operator involved in intelligence work which requires the use of a computer. She suffers pain in her arm from constant keying motions, and she has either to take regular breaks, or type for a time with one hand. She needs assistance with lifting such items as boxes. She suffers immediate and sharp pain on the strong and quick action of throwing her right hand and arm up in order to salute an officer. She said that her "salute" is a "lazy salute" and the unprofessional attitude or lack of respect that it might convey to officers, and the poor example she provides to other troops embarrasses her. She suffers similar pain and embarrassment during marching and rifle drill. In the past she relied on exercise, attending the gym, bicycle riding, umpiring and playing netball to keep up her general physical fitness. These activities are now limited, mainly in their duration. She says that the salt she excretes when she sweats stings the scar. The hot sun causes a painful burning sensation on the scar area.
The applicant gave evidence of other ways in which the scar affects her family relationships. She said that her children have learnt to cuddle her around her waist, and to be careful if they are sitting on her knee while she sits on a chair. Her husband has to be careful when he caresses her. Sometimes he forgets and knocks the scar and to some extent this impedes their sexual relationship. She tosses and turns in her sleep and if she turns on to her right side she wakes up with pain. The scar causes her sharp shooting pain; it throbs and is itchy.
The applicant has not received any professional medical treatment for the scar. She consulted a plastic surgeon in late 1999 and she understands that further surgery offered might produce a better cosmetic outcome, but it would not alleviate the pain. Depo-steroid injections were suggested as a possible remedy. The applicant was told, however, that the injections were painful and that they could make the scarring worse. She used vitamin E cream on the area but it did not help. She uses sunscreen or covers the area and she takes Panadol for the pain. She has no plans for any future medical treatment.
Credibility of the applicant
The respondent urges that the applicant's evidence be approached with caution. Listening to her evidence it is open to conclude that she has exaggerated the degree of social embarrassment the scar causes her. However, I think she genuinely perceives that strangers and her work colleagues see the scar as an ugly disfigurement. She feels strongly about it, and seems to be constantly aware of it. It is often itchy and sometimes causes pain and irritation, which acts as a constant reminder of the existence of the scar. It is understandable that she feels people are looking at it. I find her evidence to be truthful.
I accept that the applicant perceives the scar as disfiguring and that it causes her social embarrassment when she is in sleeveless clothes. When it is covered the clothing tends to aggravate it and cause her discomfort. I accept that the applicant suffers some pain and discomfort when engaged in certain activities and movements, and that she has to modify some of the ways in which she carries out her grooming, dressing, household and work activities. The pain and discomfort the scar causes her is not, however, constant or debilitating. Modifying her movements, or resting her arm provides immediate relief.
The relevant provisions of the Act and the Guide
Section 4 of the Act defines "impairment" as "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". It defines "permanent" as "likely to continue indefinitely".
Section 24 of the Act states:
24. (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.
24. (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.
….
24. (5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
24. (6) The degree of permanent impairment shall be expressed as a percentage.
24. (7) Subject to section 25, where Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section.

Section 27 of the Act provides for additional compensation to be paid in respect of an injury under section 24 for non-economic loss suffered as a result of that injury or impairment. Section 28 relevantly reads as follows:

28. (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.
...
28. (4) Where Comcare, a licensed authority, a licensed corporation 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 licensed authority, the licensed corporation 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.
28. (5) The percentage of permanent impairment or non-economic loss suffered by an employee as a result of an injury ascertained under the methods referred to in paragraph (1)(c) may be 0%.
...

I set out the relevant Table of the Guide:
TABLE 4.1
Skin Disorders
NOTE: In the evaluation of impairment resulting from a skin disorder the actual functional loss is the prime consideration, rather than the extent of cutaneous involvement. …

% 0 DESCRIPTION OF LEVEL OF IMPAIRMENT The condition is absent on examination or if present can easily be reversed by appropriate medication or treatment AND causes no interference with activities of daily living when present.

The condition requires treatment for lengthy periods AND causes no interference with activities of daily living when present.
The condition is absent on examination or if present can easily be reversed by appropriate medication or treatment AND causes minor interference with activities of daily living when present.
The condition requires treatment for periods in aggregate up to 3 months per year AND causes interference with activities of daily living when present.
The condition requires treatment for periods in aggregate up to 4 months per year AND causes minor interference with activities of daily living when present.
The condition requires treatment for periods in aggregate up to 4 months per year AND causes major interference with activities of daily living when present.
The condition requires treatment for periods in aggregate up to 6 months per year AND causes minor interference with activities of daily living when present.
The condition requires treatment for periods in aggregate up to 6 months per year AND causes major interference with activities of daily living when present.
The condition requires treatment for periods in aggregate up to 9 months per year AND causes major (sic) interference with activities of daily living when present.
The condition requires treatment for periods in aggregate up to 9 months per year AND causes major interference with activities of daily living when present.
75 to 100 The condition is present all the time and requires treatment for between 9 and 12 months of the year AND causes major interference with activities of daily living when present.

The Glossary of the Guide defines "Activities of Daily Living" as follows:

Activities of daily living are activities which an individual needs to perform to function in a non-specific environment ie: to live. The measure of activities of daily living is a measure of primary biological and psychosocial function. They are:
·   Ability to receive and respond to incoming stimuli
·   Standing
·   Moving
·   Feeding (includes eating but not the preparation of food)
·   Control of bladder and bowel
·   Self care (bathing, dressing etc)
·   Sexual Function

Whether the impairment is permanent

No medical witnesses were called to give evidence at the hearing. Dr Lloyd, senior medical adviser in Health Services Australia, in his report of 17 October 1997 (T12), described the scar as being a keloid scar of 3cm by 1cm over the right deltoid. In his opinion the scar is permanent and causes permanent impairment consisting of pain and itching. He assessed the impairment at that time as 5 percent under Table 4.1 of the Guide. In coming to this assessment he commented that the "condition cannot be easily reversed and causes no interference with activities of daily living".
The scar was described by Dr Manns, Commonwealth Medical Officer, in his report of 21 October 1998 as "itchy, irritating and unsightly. It causes a mild to moderate degree of discomfort" (T18). He noted that the discomfort had been increasing and causing the applicant increased problems since 1996.
Dr Baxter, Defence Medical Officer, in her report dated 14 September 1999 (Exhibit A), describes the scar as a hypertrophic scar, which is permanent, and that it might fade in colour with time. She described the symptoms from which the applicant suffers as being easily sunburnt; having pain with stretching of the scar from, for example, reaching or saluting, and pain with pressure on the scar from, for example, clothes rubbing, being bumped, lying on the right side, towel drying, pressure of shower spray, being hugged; and sensitivity to soap.
Dr Fry, plastic surgeon, is also of the opinion that the scar is a hypertrophic scar, and that it will settle further and eventually resolve and become pale, flat and soft over time. He examined the applicant on 10 February 1999. In his report dated 14 February 1999 (T21) he explains that a hypertrophic scar is a scar where wound healing processes produce an exhuberant amount of scar tissue which becomes red, raised, irritable and itchy. He said that:
This is an exaggeration of the normal process and like the normal process it will eventually resolve so that the scar will become pale, flat and soft but it will take very much longer. A keloid scar on the other hand actually invades the neighbouring tissue and never settles down or resolves. It is more like a tumour.
Even accepting that the scar is a hypertrophic scar, and on the evidence, that is most likely, it has become permanent. Drs Lloyd, Baxter and Fry agree on that. The applicant has had the scar now for four years, and continues to suffer from pain and discomfort. It seems to have increased in size from 3 x 1 cm in 1997 to 3.5 x 2 cm at the time of the hearing. Without further treatment it is unlikely to improve. Even if it does improve, and it could get worse, it will remain itchy and uncomfortable and a degree of impairment will persist. The issue that remains to be determined is the level of the impairment.
Whether the condition requires treatment
Dr Fry, whose evidence is relied upon by the respondent, assessed the level of impairment at 5% under Table 4.1 (T21, p.61). It is not clear whether this assessment was based on his assumption that the applicant would agree to undergo the Depo-steroid injection treatment or not. The 5% level of Table 4.1 specifies that "the condition requires treatment for lengthy periods and causes no interference with activities of daily living when present". Dr Lloyd found the same level of impairment (T12). The respondent submits that Dr Fry's opinion should not be accepted in this respect, as the applicant does not fall within the description given for a 5% impairment level, as her condition does not require any treatment.

I do not agree with this submission. In the matter of Gibbs and Comcare (AAT 9394, 30 March 1994) the tribunal seemed to have concluded that the need for an employee to wear both sunscreen and a glove when in the sun, to protect a scar on his hand was "treatment" for the purposes of the 10% level of Table 4.1. In the present case the applicant's condition warrants treatment. The only medical treatment offered to reduce her level of pain and discomfort is treatment which, on the advice she has received, is reasonable for her to reject. In the absence of that treatment she takes Panadol for pain. She uses sunscreens, and although that treatment does not prevent a burning pain sensation, it is essential for the scar condition itself. The application of appropriate band-aid or gauze is required under most of her clothing, and she must cover the scar area when in the sun. She must cover the area or avoid water spray under pressure. These treatments are ongoing and are required for lengthy periods. Injections of Depo–steroid remain an available option for the applicant, as does a further revision of the scar.
Assuming the applicant has "no interference with activities of daily living" an assessment therefore of 5% impairment would be appropriate. This would not, however, entitle her to compensation under sections 24 or 27 of the Act. The central issue for the tribunal is then, whether the condition causes interference with activities of daily living when the condition is present. If it does, then does she fall within the description given for a higher level of impairment?
Whether interference with activities of daily living
The scar is present all the time. The impairment is caused by pain and discomfort including itchiness. The pain and discomfort is present only on some occasions depending on specific movements the applicant makes, and whether she has covered the scar to protect it from irritation from clothing, for example, or from the heat of the sun.
On the evidence I have accepted that the pain and discomfort causes the applicant inconvenience, the need to modify her activities and the method of carrying out tasks, and it limits the duration of some of her activities. It does not prevent her from carrying out her daily activities. The question is whether those restrictions constitute "minor interference with activities of daily living".
This question requires consideration of the applicant's evidence in the context of the definition in the Glossary of the Guide which itemises activities of daily living. It refers to primary biological functions and psychosocial functioning. The Guide at p.3, specifically distinguishes between activities of daily living to assess impairment, and lifestyle effects. Lifestyle effects are a measure of an individual's mobility and enjoyment of and participation in leisure activities and social relationships.
Ability to receive and respond to incoming stimuli
The applicant says that her ability to respond to her children and husband are affected by the need for care to be taken to avoid her arm in the course of physical contact. She says that the presence of the scar itself impacts on her ability to respond to and relate to people. These complaints do not impact on her ability to respond to stimuli.
Standing
There is no suggestion that the applicant is not able to stand at all, or for lengthy periods of time.
Moving
The applicant is restricted by a sensation of stretching and throbbing in some movements and has to find other ways of performing some activities, or modify the way she moves. She manages a "lazy salute" which she says is below the standards expected of a RAAF officer. Holding a weapon is also difficult for her. The applicant has had to curtail her sporting activities. Her physical fitness has been affected. The evidence reveals that the applicant is restricted in some of the movements she can make, but not in performing any particular activity. She has difficulties in carrying out some activities both at home and at work, but she is able to perform all activities and fulfil her functions as a mother, wife and employee. She is restricted in participating in sporting activities to the full extent and in lifting boxes at work. Sport and fitness programs are an essential part of her life and job. She is limited mainly in the duration of time that she can undertake a particular activity.
Feeding (includes eating but not the preparation of food)
The applicant is able to feed herself.
Control of bladder and bowel
The applicant does not suffer any lack of bladder or bowel control.
Self-care (bathing, dressing etc)
The applicant says that her self-care functions are interfered with. The applicant gave evidence that in the morning, when she showers she cannot go directly under the water as the water pressure hurts her arm. She uses soap-free cream to cleanse herself. She pats the scar clean and dry. She dresses "backwards" and "feet up". She gave a description of her technique in reversing her brassiere to put it on. Being a serving officer, the applicant is required to wear her hair up in a bun. Doing this takes her much longer than it used to.
Sexual function
The applicant says that her sexual relationship with her husband is interfered with. However, there is no suggestion that she thereby avoids or is unable to participate in and enjoy sexual relations. There is certainly no biological interference. The evidence is that pain from an accidental bump or contact temporarily limits the level of her enjoyment on some occasions. The applicant didn't refer to her sexual relationship being interfered with to her general practitioner, Dr Lendow-Smith, who took detailed notes on 11 August 1999 as to the activities with which the applicant experienced some difficulties (Exhibit B). As to this she said she was reluctant to raise that matter with a man. However, she made no mention of her difficulties in this respect to Dr Baxter, a female practitioner.
Conclusions
The applicant suffers minor interference in the activities of daily living that require movement and in her self-care. The impairment places limits on duration of some movements or activities. It doesn't cause any restriction in the range of her movements. The applicant has to modify the way in which she showers and dresses. The applicant can raise her arm to fix her hair. She takes it slowly, and does it in stages. Similarly, she is able to salute – but in a lazy manner, rather than with a swift action. There is no suggestion that the applicant can't take care of the essential activities of normal living, such as feeding and clothing herself. I do not regard her impairment as limiting her sexual function. The interference she suffers when her husband accidentally knocks her arm is so insignificant as not to rate as "minor interference".
The interference to the daily activities of living suffered by the applicant amounts to a minor interference in only two of the primary biological or psychosocial functions listed in the Glossary. Counsel referred me to some cases in which the phrase "minor interference with the activities of daily living when the condition is present" was considered.
In the matter of Gibbs and Comcare the tribunal found that the applicant's scarring to his hand was a condition which can be, if not reversed, subject to treatment in that the applicant needed to apply both sunscreen and a glove when in the sun, and it found that the condition caused minor interference with daily activities. The tribunal considered that Table 4.1 was unambiguous and had regard to its plain meaning and found that "10 per cent is no doubt the correct table percentage". In that matter the tribunal relied on the Shorter Oxford English Dictionary meaning of "minor" - defined as "comparatively small or unimportant" – for the meaning of minor interference, which it compared with "no interference". It made no analysis of what "activities of daily living" comprised.
In the matter of O'Rourke and Comcare (AAT 12152, 26 August 1999), Deputy President Burns, at paragraph 51, took a global approach. In that matter the applicant suffered intermittent headaches and the level of his impairment was assessed under Table 13.1. The only activity of daily living that was interfered with to some degree was his sexual libido. However, on the evidence, he normally indulged in sexual relations on an occasional basis only, and the impairment was not such as could be regarded as minor interference. Deputy President Burns said:
The circumstances of a given case may be such that one ADL is so affected, both biologically and psychosocially, as to fall to be described as "minor interference with activities of daily living". In another case however, where there is a low level of, say psychosocial, interference with several ADL, that could similarly fall to be described as "minor interference with activities of daily living". It is highly unlikely, when taking a global approach to this assessment, that a small infraction of one ADL could properly be described as "minor interference with activities of daily living".
In the Federal Court case of Commissioner for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Emery (1993) 32 ALD 147, Justice Spender considered the true construction of the phrase "activities of daily living". He affirmed the tribunal's decision and the correctness of its construction of the phrase.He noted that the tribunal properly focussed on those activities which an individual needs to perform to function in a non-specific environment, that is, to live. He quoted the tribunal:
The Tribunal has also to have regard to the term ADL ('activities of daily living'). This term is frequently used by members of the caring professions and is often related to basic biological functioning. The tribunal has the advantage of a glossary definition of this term. The definition goes beyond the common usage of the term by defining ADL as a "measure of primary biological and psychosocial function".
Consistent with these and the other cases counsel for the parties referred me to, and taking into account the whole of the evidence before me, I find that the applicant's impairment causes her "minor interference with the activities of daily living when the condition is present". The interference she suffers at work and at home relates to the impediments and difficulties she suffers in movement and her self-care activities.
The level of impairment
The respondent urges that, even if it is found that the applicant suffers minor interference with daily activities, she does not come within the description of 10% as that level requires the condition either not to be present, or if present, to be easily reversible with medication. Neither counsel suggests that the applicant's level of impairment meets the descriptions against any of the levels above 10%.
The logic of the respondent's argument is that the applicant does not qualify for compensation because her impairment is more serious than the description given for the level of 10%, and she does not fit within a higher level. If the respondent's submission is correct, on my findings the applicant would not even qualify for 5% level of impairment, as she also suffers minor interference with activities of daily living – not required for that level of impairment. I reject the respondent's submission that the applicant's condition does not amount to a 10% impairment because it is not easily reversible by medication. Having found that the applicant had a minimum level of impairment of 5%, and having found that she suffers the additional requirement of minor interference with activities of daily living, she falls within the description for 10%. The scar condition, by its nature, is present and the pain and discomfort she suffers is not easily reversible when it occurs. She over-qualifies for this level of impairment. The construction urged by the respondent would bring about a bizarre and unfair result and one not intended by the scheme of the Act and the Guide. The descriptions given for each level of impairment includes both permissive and mandatory criteria, necessary to distinguish between the various levels of impairment.
Justice Olney stated the method in which the interpretation of the Guide should be carried out in the case of Comcare v Ticsay (1992) 16 AAR 241 at 248. He noted that having regard to the definition of the word "impairment" and to the particular purpose of the Guide it seems that the legislative policy of the Act is to provide for the payment of compensation to an employee who has suffered an injury resulting in permanent impairment. The Guide should be construed and applied in aid of the general statutory purpose not as a means of limiting it.
The introduction to the Guide at p.4 recognises the possibility of it not being clear which of two impairment values is appropriate. It gives Comcare the discretion to determine which value properly reflects the degree of impairment.
In Gibbs and Comcare the tribunal had no difficulty in finding that the applicant fell within the description of 10% level of impairment, noting that the scarring to his hand, a condition while always present, could not be reversed by treatment, though treatment was still required.
I conclude on the evidence before me that the applicant has a permanent impairment of her upper right arm and that 10% under Table 4.1 of the Guide properly reflects the degree of impairment.
Decision
The tribunal sets aside the decision under review and in substitution therefor decides that the applicant has a permanent impairment of her upper right arm of 10%. The respondent is to pay the applicant's reasonable costs as agreed or taxed.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Pamela Burton, Senior Member
Signed:         Eva Dimopoulos           .....................................................................................
  Associate
Date of Hearing  10 April 2000
Date of Decision  13 July 2000
Counsel for the Applicant        Ms Lorraine Gabriel
Solicitor for the Applicant         Hanstein, Stacy & Nyman
Counsel for the Respondent    Mr Geoffrey Johnson
Solicitor for the Respondent    Blake Dawson Waldron