Luckett and Comcare

CATCHWORDS – COMPENSATION – whether impairment arose out of injury within meaning of the Act – whether totally incapacitated for work – assessment of entitlement to compensation for permanent impairment – percentage of impairment for assessment of non-economic loss – decision varied.

Compensation (Commonwealth Government Employees) Act 1971
Safety, Rehabilitation and Compensation Act 1971 – ss 26, 39, 45
Safety, Rehabilitation and Compensation Act 1988 – ss 4, 14, 15-30, 124

Comcare v Bozicevic – (1996) 44 ALD 68; (1997) ALR 133

DECISION AND REASONS FOR DECISION [2000] AATA 490

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          Q 1999/87
GENERAL ADMINISTRATIVE DIVISION      )          Q1999/907

Re ROENA CAROLINE LUCKETT

Applicant

And COMCARE

Respondent

DECISION

Tribunal  Miss S A Forgie (Deputy President)
  Dr K P Kennedy (Member)
  Miss A M Brennan (Member)

Date 21 June, 2000

Place Brisbane

Decision The Tribunal:

1.in relation to a reviewable decision of the respondent dated 16 November, 1998 in relation to the assessment of the applicant's entitlement to compensation for permanent impairment, affirms that decision; and
2.in relation to a reviewable decision of the respondent dated 15 June, 1999 in relation to the assessment of the applicant's entitlement to compensation for non-economic loss:
(1)sets aside that decision; and
(2)remits the decision to the respondent for recalculation of the applicant's entitlement on the basis that:
(a)the percentage of permanent impairment determined under s. 24 of the Safety, Rehabilitation and Compensation Act 1988 to be the degree of permanent impairment suffered by the applicant is 10%; and
(b)a score of 4 is to be assigned for suffering in determining under the Guide to the Assessment of the Degree of Permanent Impairment the degree of non-economic loss suffered by the applicant.

S A FORGIE
Deputy President

REASONS FOR DECISION

On 14 January, 1999, the applicant, Mrs Roena Caroline Luckett, applied for review of a decision of a delegate of the respondent, Comcare, dated 16 November, 1998. The delegate varied an earlier decision dated 9 April, 1998 relating to the payment of compensation to her in respect of permanent impairment. Later, on 13 August, 1999, Mrs Roena Caroline Luckett, applied for review of a decision of a delegate of the respondent, Comcare, dated 15 June, 1999. In that decision, Comcare affirmed earlier decisions made by its delegates on 15 and 25 March, 1999 relating to the amount of compensation payable to Mrs Luckett for non-economic loss.

The two applications were heard together. At the hearing, Mrs Luckett was represented by her solicitor, Mr Marks, and Comcare was represented by Miss Ford of counsel. Regard was had during the hearing to the documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 in respect of each application ("T99/87 documents" and "T99/907 documents"). Mrs Luckett gave oral evidence in support of her own case together with Miss Stephenson. Dr Welsh and Dr Cooke gave oral evidence in support of Comcare's case.

BACKGROUND

There was no disagreement between the parties regarding the facts leading to the decision under review. In view of that and on the basis of the evidence, we have made several findings of fact which we will set out in the following paragraphs.

Mrs Luckett, who was born on 5 March, 1950, was employed by the Department of Health ("Department") in the Northern Territory as an A6 Finance Clerk. On 3 February, 1987, she completed a claim for compensation for "Tenosynovitis ® Arm" and stated that she had been doing computer work in conjunction with lodging of G.A.S. for the Department's finance ledger (T99/87 documents, page 9). A delegate of the Commissioner for Employees' Compensation ("Commissioner") decided that Mrs Luckett had sustained a personal injury (i.e. tenosynovitis (right) arm) arising out of, or in the course of, her employment. The delegate decided that the Department was liable to pay compensation in respect of that personal injury pursuant to the provisions of the Compensation (Commonwealth Government Employees) Act 1971 ("1971 Act"). That compensation entailed payment at the rate she would have received if she had been granted sick leave on full pay from 6 January, 1987 until 15 February, 1987 and the cost of medical treatment she had received from Dr Watson. The delegate's decision was dated 7 August, 1987. (T99/87 documents, page 72)

Various medical reports were obtained over the years and we will refer to them below. Although no formal decisions were made regarding a condition of rotator cuff tendonitis of Mrs Luckett's right shoulder, liability to pay compensation for the treatment and surgical management of that condition was generally accepted over the years (T99/87 documents, pages 77 and 88). Liability was denied in respect of a pre-existing degenerative cervical spondylosis. On 29 November, 1994, Mrs Luckett sought an assessment of permanent impairment of her right upper limb. Taking into account s. 124 of the Safety, Rehabilitation and Compensation Act 1988 ("1988 Act"), a delegate of Comcare decided on 9 April, 1997 that Mrs Luckett was entitled to an amount of $9,597.80 in accordance with s. 39 of the 1971 Act. That sum represented a 20% loss of the efficient use of her right upper limb (T documents, pages 76-79).

In letters dated 26 June, 1997 and 4 September, 1998, Mrs Luckett sought review of the determination. In a letter dated 16 November, 1998, a delegate of Comcare decided:

"1. In accordance with the provisions of sub-section 62(1) of the 1988 Act, the decision made in this matter on 07/08/87, namely, accepting liability in respect of 'tenosynovitis of right arm' deemed to have been sustained on 07/11/86, is VARIED by deleting reference to 'tenosynovitis of right arm' and inserting 'tenosynovitis of right arm and right rotator cuff tendonitis'.
2.In accordance with the provisions of sub-section 62(4) of the 1988 Act, the decision made in this matter on 09/04/98, namely awarding $9,597.80 in respect of 20% loss of efficient use of the right upper limb pursuant to the provisions of sub-section 124(3) of the 1988 Act and section 39 of the 1971 Act, is VARIED by deleting reference to '9,597.80' and inserting '$9,596.90'." (T99/87 documents, page 89)

On 16 November, 1998, Comcare invited Mrs Luckett to complete a non-economic loss questionnaire to ascertain whether she had an entitlement to benefits pursuant to s. 27 of the 1988 Act. It did so in light of the judgement of the Federal Court in Comcare v Bozicevic (1997) 144 ALR 132 (Foster, Carr and North JJ). Following receipt of that claim, a delegate of Comcare determined that Mrs Luckett was entitled to compensation pursuant to s. 27 for non-economic loss in the sum of $5,490.49. She was advised of the decision in a letter dated 15 March, 1999 (T99/907 documents, pages 113-115). In a letter dated 25 March, 1999, the delegate advised Mrs Luckett that she had miscalculated her entitlement and she was entitled to a further $1,689.38 pursuant to s. 27. The delegate's decision was based upon a finding that Mrs Luckett suffers a 20% loss of the efficient use of her right arm at or above the elbow and that this converted to an 8% whole person impairment for the purposes of the Guide to the Assessment of the Degree of Permanent Impairment prepared and approved in accordance with s. 28 of the 1988 Act ("the Guide").

In response to Mrs Luckett's request for a reconsideration, a delegate of Comcare affirmed the earlier decisions of 15 and 25 March, 1999 (T99/907, page 134).

THE ISSUES

There are five issues in this case:
whether Mrs Luckett's impairment arises out of an injury within the meaning of the 1988 Act;
whether Mrs Luckett is totally incapacitated for work, or likely to become so incapacitated and, if so, whether that incapacity is the result of, either in whole or in part, of a work related injury;
if Mrs Luckett is not so totally incapacitated for work, the percentage by which the efficient use of her arm has been reduced;
the percentage of permanent impairment for the purposes of s. 27 of the 1988 Act; and
the percentage of non-economic loss suffered by the employee.

THE EVIDENCE

Mrs Luckett

Before working at the Department, Mrs Luckett described herself as an active person who was a workaholic, a sports person and a mother of a lot of children. The children were four of her own, four step sons and two nephews. She enjoyed working and always took work home. Her working life had started in an electrical store when she was 11 years of age. She became the Friday night and Saturday morning manager of a shoe shop and, when she was 16 years of age, worked on the switchboard for a taxi company. When she was 17, she worked at night for a window and office cleaning company. She married when she left school and had four children by the time she was 20. In 1971, she began to drive taxis in Darwin. After Cyclone Tracey, she worked on the switchboard at two taxi companies in Sydney. She returned to Darwin and worked as a taxi driver for six months and as a switchboard operator for the taxi company for another six months.

When she first joined the Department in 1981, she said, she had worked on the switchboard. In 1984, she started work on transferring accounts from a manual ledger to a computer. That work occupied her all day from 8.00am to 4.30pm. If any work were left over, she would take it home to complete. Mrs Luckett said that the work was part of a special project. Initially, a lot of people worked on it but, as they dropped out, only she and two senior people were left. Mrs Luckett said that she did the bulk of the input work. Later in her evidence, Mrs Luckett said that the Department had been considering whether to buy the computerised system and it had been her job to try to make it "fall over". She regarded it as a once in a lifetime opportunity as, normally, previous experience was required to get such a job. She wanted to go higher and higher in the Department.

Mrs Luckett said that she was not provided with any ergonomic furniture. She worked wherever there was a space. Sometimes, she worked in the staff room at an ordinary table. When she worked on a Saturday, she would use a computer at the hospital. In those days, she continued, she was not told to get up from her chair to exercise.

Mrs Luckett had also performed other duties in the Department over the years. She had chased up outstanding accounts and alternated as a travel clerk with responsibilities for booking air travel and paying travelling allowance. Before commencing sick leave, Mrs Luckett said in cross examination, she had been training people to use the Department's accounting system. That involved her mainly in walking around and supervising them as they sat at computer terminals. She would talk but they used the computers. Her training duties meant that she had to fly long distances such as those from Darwin to Alice Springs, Gove and Katherine. Mrs Luckett was involved in training for approximately two months. She would go away on training trips for 2-3 days at a time and would then return to perform other duties.

Mrs Luckett said that she had undergone numerous operations. The first had been performed by Dr Mills on her rotator cuff and it "went down hill from there". Nothing relieved her pain. The operations have left her with considerable scarring and she never wears clothes without sleeves. She has had to learn to use her left hand to perform tasks, including writing.

In answer to questions from the Tribunal, Mrs Luckett agreed that she had undergone a "fair bit of surgery" before the work related injury. She had a carpal tunnel operation on both wrists in about 1968 or 1969. She thought those operations were successful. Another carpal tunnel operation was performed when there was an operation on her shoulder but that did not help. After a ceiling had fallen on her during Cyclone Tracey, she had been hospitalised for 16 weeks with crushed vertebrae. Mrs Luckett has had a tubular pregnancy and operations in relation to adhesions to the bowel and an ovarian cyst. She has also suffered from septicaemia.

In cross examination, Mrs Luckett said that her last paid employment had been when she started a return to work programme at Casuarina for four hours on 20 May, 1994. She said that she lasted for a couple of days but did not agree that she had lasted a couple of weeks. Mrs Luckett recalled a telephone conversation with her boss, Mr Don Walsh and Dr Cooke in Brisbane. She agreed that she had told them that she did not want to persist with the return to work programme. In response to Miss Ford's suggestion that her husband was in Nambour and that was the reason she did not want to go back to Casuarina, Mrs Luckett replied that she did not want to be made to feel silly. Her last paid employment was in August, 1988.

Later and again in cross examination, Mrs Luckett said that she recalled that the Rehabilitation Coordinator of the Department, Ms Marsha McBaine, had been present at the end of her attempted return to work. When it was suggested to her that she had told Ms McBaine that she had wanted to be out of pain or out of the Department in response to Ms McBaine's question of what she wanted, Mrs Luckett said that she had told her she wanted to be out of pain. When it was suggested to her that Mrs McBaine had told her retirement was a matter for her and that she herself had told her she was not unable to work, Mrs Luckett said that she had told Mrs McBaine that she wanted to be invalided out. Mrs Luckett denied that her husband's living in Nambour had anything to do with it. She had offered to work down in Queensland where there were specialists.

In answer to the Tribunal, Mrs Luckett said that she had asked to be invalided out of the Department but she had been told that she could work for 4 hours each day or resign. She left as she was sick of being treated as a liar. Mrs Luckett felt that she had been away from work because of computers, she had undergone operations and then she was sat in front of a computer. Why, she asked, could she not have been sent to the mail room? In cross examination, Mrs Luckett denied that she had been given a dictation machine to use.

When asked in cross examination whether she had been employed in her husband's business, Mrs Luckett replied that she had taken telephone calls. It was not a case of being employed for a fixed number of hours each day but of walking about and taking the odd message. She would do his banking and also drive to pick up plans. If he asked her to do anything else, she would do it. Mrs Luckett said that she assisted her husband for approximately six months and last worked for him in about April, 1999.

Mrs Luckett said that she now spent her days walking, reading, playing lawn bowls three times each week (she has learnt to use her left hand), playing darts and working on a committee raising money for the Nambour Children's Hospital. The committee work takes place mainly on Tuesday nights when she sells raffle tickets. She also approaches businesses to donate prizes for the raffle. Each Thursday, she does voluntary work for an hour.

Mrs Luckett said that she had not tried to find employment. Her last attempt at employment had been when she had tried four hours at Casuarina. When asked by Miss Ford whether she had any intention of attempting to find any, she replied that she took eight Panadol each day and had taken 2½ years to lose 28 kilogrammes. No-one, she said, should be expected to have her in their office. If she could find someone who could let her go after an hour, she would be "OK". She helps with voluntary work where she is not restricted by hours and is quite happy to do that.

In re-examination, Mrs Luckett said that there is no day when she does not have pain but has learned to live with it. When she helped her husband, she could do what she did when she could. A hot shower eases the pain and so does lying on the floor and the ministration of frozen peas wrapped in a towel. She said that she does exercises. Mrs Luckett said that she has learnt to live with the pain but her whole outlook has changed. She loses her temper a lot and cries a lot. Mrs Luckett felt that she was totally unsuitable for work at this stage unless there were something she could do privately from home and not be seen.

In response to the Tribunal, Mrs Luckett said that she can do almost anything with her right arm so long as it is anchored to her waist. If she takes it away from her waist, the pain gets to her. Anchoring her arm on a desk does not seem to work. She tries to use it as much as she can as she is terrified that she will lose it. She can wash dishes using her left hand and is unable to sweep, mop or vacuum or pull weeds with her right hand. Mrs Luckett said that she can drive using her left hand. She is able to peel vegetables by keeping her arm by her side.

Miss Stephenson

Miss Lesley Stephenson has been an occupational therapist since 1975. She had prepared a report dated 14 April, 1999 (T99/907 documents, pages 119-132) after she had read the specialist reports mirroring those in the T documents. Miss Stephenson described Mrs Luckett's injury as a "chronic severe pain in her whole right arm, caused by the repetitive work she had to do" as a computer operator between 1984 and 1988 (T99/907 documents, page 119). She went on to describe the treatment that Mrs Luckett had received over the years and the pain from which she now suffers. That pain was described as constant right arm pain, decreased right arm strength, reliance on the use of her non-dominant left hand, restricted repetitive use of her right arm, not worked full time since 1988, marital strain resulting in marriage separation, inability to play sports previously played, aggravation of pain and restriction with household tasks, exacerbation of pain by surgery, occasional bilateral hip pain since surgery and neck pain since surgery, especially flexing neck and when sitting for extended periods (T99/907 documents, page 121).

In her oral evidence, Miss Stephenson said that she did not quantify the percentage of Mrs Luckett's incapacity that was due to her injury. Her opinion was restricted to her functional impairment. Doctors, she said, assess a person's percentage of disability. In functional terms, Miss Stephenson continued, a person who cannot use an arm has a significant reduction of work options. If a person is not a skilled worker, the work options narrow by more than 50% as most jobs require the use of both arms. If a person were to operate a computer with just one arm, he or she would develop problems in that arm. It was on that basis that she decided that Mrs Luckett had suffered a significant loss of work opportunities.

If she were looking at the impairment of Mrs Luckett, she would say that her impairment is in the order of 20 to 30% as she still has the use of the rest of her body. In contrast, her work opportunities are significantly narrowed. In cross examination, Miss Stephenson acknowledged, as she had before, that she would defer to an orthopaedic surgeon in terms of assessing Mrs Luckett's permanent impairment. She would do so provided he or she had been given all the available information regarding functional impairment.

In response to Miss Ford, Miss Stephenson considered whether Mrs Luckett could use a telephone. She said that Mrs Luckett could do so with a headset but she would suffer problems if she were required to do a lot of writing. A brief memo now and again would not be a problem. Intermittent telephone calls would be all right. Sending and receiving facsimile messages would also be appropriate as would photocopying and the intermittent use of an electric stapler. Whether Mrs Luckett could undertake filing duties would depend upon the weight and the spacing of the shelves. She could not lift more than 3 kilogrammes. Inserting variables in a form letter would be all right although Mrs Luckett would probably be slow. She would probably aggravate her condition if she typed for more than 2 to 5 minutes. In general, Miss Stephenson did not recommend Mrs Luckett's typing with her non affected arm. She did not recommend use of her affected arm for more than 2 minutes as her pain is aggravated by even minimal activity. If Mrs Luckett wanted to use her right arm she could use it but she could not use it in a commercial sense.

In response to the Tribunal, Miss Stephenson said that she had not given Mrs Luckett any adaptive intelligence testing. She had confined her assessment to Mrs Luckett's suitability for non-manual work using her existing skills.

Dr Welsh

Dr Mark Welsh, who is an orthopaedic surgeon, had seen Mrs Luckett in relation to the ongoing problems with her right shoulder and neck since 19 April, 1995. In a report dated 15 August, 1995, he expressed the opinion that further operative intervention would not have an acceptable chance of resolving her problems. He recommended that she be seen at a pain clinic (T99/907 documents, page 59). In a later report dated 2 March, 1996 he advised that an MR scan performed on 30 January, 1996 had indicated that there was no ongoing surgical condition of her right shoulder. As she was having difficulties with her cervical spine, he had referred her to a specialist orthopaedic spinal surgeon, Dr Geoffrey Askin (T99/907 documents, page 60). In a report dated 21 September, 1996, Dr Welsh said:

"I have been following Mrs Luckett's course over the period of 19 April to the present time. Mrs Luckett has ongoing problems with respect to her right shoulder. This is the same ongoing problem that she has had from the time of her employment in the Northern Territory.
I believe Mrs Luckett's symptoms are difficult to pinpoint to one particular condition in the shoulder. Certainly she has had multiple procedures which make assessment very difficult. There is an element of scapulo-thoracic dysrhythm with shoulder motion. This would result in relative impingement of the shoulder, even allowing for her decompressions. I do not believe any further operation intervention is warranted. I have arranged ongoing physiotherapy for the right shoulder with a view to working on the scapulo-thoracic rhythm primarily. This is a difficult problem and treatment results will need to be assessed on an ongoing basis.
Mrs Luckett has lost the full use of her right arm as a result of her conditions. This can be traced back to her initial problems.
In general terms I would agree with Dr Cooke's assessment of 20% loss of efficient use of the right arm attributable to the right shoulder. This would take into account impairment and disability." (T99/907 documents, pages 61-62)

Dr Welsh assessed Mrs Luckett's disability as 20% of her upper limb in his report dated 21 January, 1997 (T99/907 documents, page 63). He said that this equated with a 12% disability of her whole body. Dr Welsh had made his assessment according to the American Medical Association's Guides .
In giving oral evidence, Dr Welsh said that he continued to hold the same opinion. He had last looked at Mrs Luckett's range of movement in 1999 and he agreed with findings by her general practitioner, Dr Veltmeyer (T99/907 documents, page 108), that she had 85º abduction and 105º flexion. He disagreed with the proposition that she had reduced internal rotation and said that was normal.

He considered that Mrs Luckett's loss of the efficient use of her right arm was attributable to a combination of cervical and shoulder pathology. It is possible that inputting data into a computer could have caused that pathology. He could not comment upon the effect of the injuries she received during Cyclone Tracey. When asked whether it was more likely than not that factors other than keyboard work triggered her symptoms, Dr Welsh said that he found it very difficult to answer that question. He could only take the history as it appeared in the reports he had been given. Dr Cooke said that there was a relationship but he could not form his own opinion without seeing her at an earlier time. In Dr Welsh's opinion, Mrs Luckett's working on a switchboard, filing and sending facsimile messages would not lead to any additional loss of the efficient use of her right arm.

Ms McBaine

Ms Marsha McBaine was the rehabilitation coordinator in the Department. She wrote to Dr Cooke on 5 May, 1994 regarding Mrs Luckett's return to work programme as the Assistant to the Accounts Manager, Accounting Services Branch, in the Department. Mrs Luckett's supervisor, Ms McBain wrote, was most cooperative and supportive in assisting in the creation of a position that would meet Mrs Luckett's physical limitations and utilise her considerable knowledge and computing skills. The job, she continued, allowed for varied duties and provided Mrs Luckett with considerable latitude to vary her activities and pace herself as needed. The site in which Mrs Luckett was to work was to be established once she accepted the position. The Director of Occupational Health and Safety and an Occupation Therapist from the Darwin Private Hospital would then assess the site prior to her starting. Ms McBain said that she would keep Dr Cook apprised of Mrs Luckett's progress concerning her return to work. (T99/907 documents, page 37)

The attachment to Ms McBain's letter set out the job profile for the position and a schedule for a graded return to work. For the first month, Mrs Luckett was to work 4 hours each day. She would work 6 hours during the second month and a full 7 hours 21 minutes in the third month. The work was scheduled over five days each week. The job tasks were itemised and the setting described. The tasks included the use of the telephone, some typing or handwriting of brief memos, sending facsimile messages, stapling, photocopying, preparation of files and insertion of material into files. The job profile noted that Mrs Luckett could sit or stand as she wished for approximately 75% of the tasks. The amount that she would be required to lift or carry would be between 1 and 3 kilogrammes. She would be required to use a computer to retrieve information by using a mouse for approximately 30 minutes in a 4 hour day or an hour in a full day. Mrs Luckett would need to use the computer for a further 30 minutes in a 4 hour day or an hour in a full day for data entry. All of the tasks she was required to perform could be rotated on a 5-10 minute basis as she needed in order to minimise repetition. She could work at a speed to suit her.

Both Mrs Luckett's supervisor and Dr Cooke, as her treating physician, signed a statement that the job profile fell within the physical capabilities of Mrs Luckett. Dr Cooke signed a further statement that she could perform:

"SITTING/STANDING: 75% of the day
WALKING: 25% of the day
COMPUTER ENTRY 1/8 of the day
COMPUTER DATA ENTRY (Typing): up to 1/8 of the day
PHOTOCOPYING: up to 1/8 of the day
USE OF THE FAX MACHINE: up to 1/8 of the day
TELEPHONE ANSWERING: up to 1 to 2 hours per day
MESSAGE TAKING AND NOTES: up to 1/8 of the day" (Exhibit 1)

On 10 May, 1994, Mrs Luckett signed a statement that she understood that Dr Cooke had released her to perform the functions of the position and that she would start work on 12 May, 1994 for 4 hours a day to begin with. She also stated that:

"In accepting this position, I understand it is my responsibility to follow the job profile accordingly and to not perform tasks that are not within my stated physical limitations. If I have any questions concerning the appropriateness of the duties I will review them with my supervisor, Don Walsh, and/or Marsha McBaine, OH and S Rehabilitation Coordinator." (Exhibit 1)

Ms Berglin

Ms Jan Berglin took a note of a conference telephone call that had taken place to Dr Cooke in the presence of Mrs Luckett, her supervisor (Mr Walsh), the rehabilitation provider (Ms Terena Saunders), the case manager (Ms McBaine) and herself. The call had been placed at the request of Mrs Luckett and Ms Berglin reported the meeting in the following terms:

"Roena started off by stating that she could not cope with the work plan as agreed by him and requested and extension of a medical certificate to 30/6/94.
She stated that she was experiencing pain in the base of the neck and felt as if there was a golf ball in her shoulder blade. Where the infection had been, there was a burning pain. When she is not at work but at home at her daughter's place, she has lots of warm showers. The most comfortable position is on her back on the floor with the soft collar on. By 11.00am she says she is experiencing excruciating pain and wants to vomit.
At this stage, she has worked 10 days and had two days off with a med cert from Dr. Watson.
Dr Cooke stated that he was very disappointed with her and that she should try to keep on with the return to work plan. He questioned her about the collar he had told her to wear. She stated that it was more painful off than on. She said that she could not answer the phone without pain because the collar digs into her. He replied to try a smaller collar (she grimaced at that remark).
She mentioned that she is having to take four times the dose of the medication to try to relieve the pain. He replied that that particular medication was not a pain killer and that she should not be increasing the dosage. He was concerned that if the pain is not being relieved that he had some worry about the upcoming surgery. She reiterated that she could not carry on with the work plan – it was causing her too much pain.
After pausing for a few seconds, he stated that she had better return to Queensland and make an appointment to see him as soon as possible. I asked him whether he considered her too ill to continue the work plan. He replied that as he was not there, he did not know but that if she said that she could not do it, then he has to accept that. The conversation ended and Roena made an appointment to see him on Wednesday 8 June, Roena requested Marsha McBain from Health to organise a flight back to Qld. Marsha agreed. I stated that until I had spoken to Dr Cooke after he had seen Roena that the time off could not be regarded as compensable and that the air fare might not be reimbursable. This was understood by everyone.
I stopped to speak to Roena alone. She reiterated her earlier statement that she was experiencing intense pain, that she had not wanted to start this work. Her husband had returned home to Qld and was ringing her every night to ask 'how his little patient' was. She stated that she was amazed the marriage had lasted given the pressure there was on it because of her continual pain. When she is in pain in the middle of the night, her husband takes her out to the shower and stands her under the hot water to relieve the pain.
We discussed what she really wanted as an outcome. She wants to be out of pain and out of the dept. We discussed retirement, redundancies, invalidity. Retirement was up to her, redundancy required her to be back at work and fit, invalidity was not supported by her doctor who has maintained in telephone discussions that she should be returning to work and should definitely never be invalided out. She maintains that she has been discriminated against – if she had been an exec and wanted an invalidity, she would have received one much earlier.
During the discussion, the telephone rang, she did not hesitate to reach right across the desk and answer it. She did not give any indication of discomfort let alone pain as she reached across or spoke to the caller. During the whole meeting, she was very alert and did not show any symptoms of drowsiness.
Surgery is still planned for early July one 'she has no further trace of antibiotics in her system" (I think she must mean infection). (Exhibit 2)

Dr Cooke

Dr Robert Cooke, who is an orthopaedic surgeon, first saw Mrs Luckett on 19 November, 1991, has written two reports regarding Mrs Luckett. One was dated 12 February, 1992 (T99/907 documents, pages 39-43) and the other, which is undated, was said by the index to the T documents to be dated 31 January, 1994 (T99/907 documents, pages 48-55). A third letter was a letter dated 12 March, 1993 (T99/907 documents, pages 44-45).

In his first report, Dr Cooke reviewed Mrs Luckett's history and treatment. He noted that she had suffered hepatitis in 1964, undergone a repair of a crushed right ureter and left renal agenesis following a motor vehicle accident in 1974, undergone a hysterectomy and oophorectomy complicated by septicaemia post-operatively, had an operation for adhesions to the bowel from an ovarian cyst, had a bilateral carpal decompression in 1968 and suffered from hiatus hernia with reflux in 1992. Before she consulted Dr Cooke, she had sought other advice and had received both physiotherapy and a ten week course of hydrocortisone in her right shoulder. An anterior acromionectomy was performed by an orthopaedic surgeon on 9 July, 1990. That had provided some relief but not to the burning pain about the insertion of her right deltoid muscle. Dr Cooke conducted investigations including plain radiographs, an MRI scan, an isotopic bone scan and a CT scan. He surgically investigated her shoulder and found extensive synovial adhesions obstructing movement of the glenohumeral joint. The coraco acromial ligament was compressing a joint capsule further impeding movement of the joint. The adhesions were divided as was the coraco acromial ligament with restoration of almost full passive movement of the joint. The spasm of the infraspinatus, Dr Cooke found, disappeared under anaesthesia revealing significant wasting of the muscle. Dr Cooke performed a neurolysis of her right suprascapular nerve on 5 January, 1992. (T99/907, pages 41-42)

Dr Cooke concluded:

"The relationship between her work conditions and her current suffering and disability is now of academic interest and would be difficult to either prove or discount at this late stage.
It would appear that Mrs. Luckett suffered from a subacromial or subdeltoid bursitis causing capsular irritation of the glenohumeral compartment of her right shoulder.
Anterior acromionectomy in September of 1990 served to give some ease of her problem but resulted in an adhesive capsulitis and a suprascapular neuritis effecting (sic) the nerve as it entered the infrascapular compartment (iatrogenic). While these problems have been relieved, she is left with
1.subdeltoid bursitis
2.right carpal tunnel syndrome

I would advise surgical revision of her right carpal tunnel syndrome, then review. As a last resort the subdeltoid bursa should be excised.
While Mrs. Luckett maintains she plans to return to her former employment in Darwin once her shoulder has settled, I suspect that her real intentions are to remain with her family who are now settled near Nambour. It would therefore seem appropriate to either redeploy Mrs. Luckett to a position in the Commonwealth Department of Health or retrench her once her shoulder problem has been stabilised." (T99/907, pages 42-43)

The letter dated 12 March, 1993 enclosed a questionnaire which Dr Cooke had completed at Comcare's request and also noted that he would forward a detailed report "in the near future" (T99/907, page 44). In the questionnaire, he said that Mrs Luckett was not totally and permanently incapacitated for work and said that "She should be able to return to office work – if necessary on a part time basis initially." (T99/907, page 45) Her condition was permanent prior to 1 December, 1988 and she had lost 20% of the efficient use of her right arm for the purposes of her employment as a clerk and 20% for general functions. (T99/907, page 45)

In his final report, Dr Cooke reviewed Mrs Luckett's previous medical history, her symptoms and the investigations that had been undertaken and the treatment that had been given. Dr Cooke summarised his opinion in the following passage:

"From the information available to me, it is evident that Mrs Luckett suffered
1.a subacromial bursitis with impingement of the rotator cuff of her right shoulder; and
2.developing degenerative spondylosis and osteoarthritis of the C4/5, C5/6 and C6/7 segments of her cervical spine with the changes being most marked at the C5/6 segment where a developing large osteophyte was causing increasing stenosis of the right C5/6 neural foramen causing compromise to the right C5/6 nerve root.

when she was working in the Department of Health in Darwin in 1988/1989. The developing degenerative changes involving her cervical spine were in existence prior to her commencing work with the Department of Health and it is likely that the degenerative changes would have progressed whether she was working with the Department of Health or not. It is possible that her work with the Department served to aggravate and perhaps accelerate these changes and it may be that her work with the Department of Health caused the onset of the subacromial bursitis involving her right shoulder hence, Mrs Luckett's claim against the Commonwealth Department of Health for compensation is acceptable on medical grounds of aggravation of pre-existent degenerative spondylotic and osteoarthrosic changes involving her cervical spine and perhaps initiation of the subacromial bursitis of her right shoulder.
Mrs Luckett has suffered significantly and been partially disabled as a result of the above condition and consequences of them. Ongoing conservative and definitive surgical treatment has proven ineffective in relieving her of some of her suffering and disability. As a consequence, she remains disabled.
Her current disabilities, are in part due to the progression of the degenerative C6/7 spondylotic and osteoarthrosic changes and scarring about the glenohumeral compartment of her left shoulder. She requires conservative treatment of both conditions and may, at some time in the future, require further definitive surgical treatment at the C6/7 segment of her spine.
Mrs Luckett remains disabled and is likely to remain disabled for an indeterminate period of time. As a consequence, I would advise that Mrs Luckett be considered for retirement from her employment from the Commonwealth Department of Health in Darwin on grounds of invalidity. The prospects of her returning to any form of gainful employment at this time in Darwin seem remote regardless of the outcome of any further treatment that may be offered her.
I apologise for the delay in finalising this report, but I had to be absolutely certain that the results of various investigations were to hand to confirm my clinical impression that Mrs Luckett was in fact disabled as a result of ongoing organic disease rather than some psychogenic disorder before committing myself to paper.
Should you wish to discuss my opinions about Mrs Luckett further, then I would welcome a call from you." (T99/907 documents, pages 54-55)

In his submissions, Mr Marks questioned whether Dr Cooke had given his report on 31 January, 1994 as appears in the index to the T documents. He did not raise it with Dr Cooke
In giving oral evidence, Dr Cooke confirmed that he remained of the same opinion. He said that he had been involved in Scotland in the assessment of patients' capacity to carry out particular employment for four years. That involved the application of a different test in that a fisherman who lost a thumb would be regarded as 100% disabled for that employment whereas a lawyer who lost a thumb would not be disabled at all. Since his return to Australia, he has also done a lot of work assessing persons' ability to carry out work.

He was asked by Miss Ford about Mrs Luckett's ability to carry out duties such as answering a switchboard and putting variables into a form letter. He replied that she would have had difficulties with the older switchboards as they required a person to lean over and to pull and insert plugs. Newer switchboards are more like computers and Mrs Luckett has no loss of function with a modern switchboard. She would only have difficulties if she were required to lift heavy volumes for the purpose of, for example, photocopying. Otherwise, she would not suffer from any loss of efficient function.

As to the level of Mrs Luckett's impairment, Dr Cooke said, she had lost some degree of forward flexion. Forward flexion was limited to about 100º. Abduction was limited to about 80º. Her rotational movement was painful but not restricted. Mrs Luckett had lost about a third of her active movements of her shoulder. In giving his evidence, Dr Cooke said that her level of impairment was 20% of her upper limb and that equated with 12% of her whole body. He had used the American Medical Association's Guides . If he used Table 9.1 of the Guide, he would assess her impairment between 5% and 10%.

When he operated in 1991, Dr Cooke said, Mrs Luckett had already had two previous operations in the area of her shoulder. In some respects, that made the aetiology of her condition difficult to identify. Three segments had been damaged or suffered degeneration. She had worked for 14 years as a taxi driver and 2 years doing computer work for the Department. When he first saw her, she had not worked for 3 years. With shoulder problems, he said, where there has been no complete tear of the rotator cuff, they resolve themselves in 2 years. Mrs Luckett's shoulder could have been injured by repetitive lifting as a taxi driver. Her work in the Department was not of a sort that would be expected to cause injury to her shoulder. She had undergone surgery to the acromio clavicular at the time and had pathology involving her cervical spine. The cervical spine can reproduce pain that is very similar to rotator cuff lesions. The fall of the ceiling could have caused injury to her neck and shoulder if she were upright when it fell.

Dr Cooke said that he could never be sure whether Mrs Luckett's three degenerative cervical discs (C3/4, C4 and C5) were due to injury or to repetitive minor injuries which did not have a chance to repair. They can imitate shoulder pain and particularly in the deltoid. Compression of the nerves at the C5 level can affect the deltoid muscle. The three degenerative discs could not have been caused by her extensive keyboard work. Usually, they were the result of poor physical fitness and nutrition. They could be caused by injury such as being hit on the head by the ceiling.

When he saw her in June, 1994 after the return to work programme, Dr Cooke said that Mrs Luckett had complained that she could not answer the telephone while wearing the collar and she could not do keyboarding. She said that wearing a soft collar helped. Her right shoulder hurt. She had 50% of the expected normal range of movement and was complaining of the scapular thoracic component of her shoulder. As it is a positional joint, she could move her arm but suffered quite a deal of pain.

In response to Mr Marks, Dr Cooke denied that he had operated on Mrs Luckett on 17 occasions. Dr Cooke said that she had to have a number of surgical interventions to clear bone. She has also suffered multiple hyperkeratoses. Mrs Luckett's infections to the bone in her shoulder have been resistant to treatment with penicillin and he has had to remove dead bone and pus. Clearing dead bone and pus following an operation is not itself surgical treatment.

In response to questions from the Tribunal, Dr Cooke said that he had seen Mrs Luckett many times after the fusion operation in her cervical spine. He said that she continued to complain of pain over the right deltoid as well as pain in her index finger and thumb. She also suffered from shoulder discomfort. Dr Cooke said that he was never able to determine what caused the pain in her deltoid.

LEGISLATIVE FRAMEWORK

General outline of 1988 Act

Section 14(1) of the 1988 Act provides that:

"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."

Unless a contrary intention is shown in the 1988 Act, the word "injury" is defined in s. 4(1) to mean:
"(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."
The word "disease" is defined to mean, unless a contrary intention is shown in the 1988 Act, to mean:
"(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". (s. 4(1))
An "ailment" is defined to mean:

"… any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)" (s. 4(1)).

Sections 15 to 30 of the 1988 Act set out the various types of compensation payable to an employee who has suffered an injury. Of relevance in this case are ss. 24 and 27.

Section 24(1) provides that Comcare is liable to pay compensation in respect of an injury where that injury results in a permanent impairment. The word "impairment" is defined in s. 4(1) to mean:

"… the loss of the use, or the damage or malfunction, of any part of the body or any bodily system or function or part of such system or function."

The word "permanent" is defined to mean "… likely to continue indefinitely" (s. 4(1)).

Section 27 of the 1988 Act concerns non-economic loss where an employee has an injury that has resulted in a permanent impairment and compensation is payable under s. 24. In those circumstances, s. 27(1) provides that:

"… 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."

Section 27(2) goes on to prescribe the formula by which Comcare must calculate the amount of compensation payable.

Interaction between 1988 Act and 1971 Act

When Mrs Luckett first claimed compensation in February, 1987, the 1971 Act was in force. The 1988 Act did not commence until 1 December, 1988. Despite that, it is the 1988 Act that applies in relation to any injury, loss or damage she has suffered whether before or after the commencement day (s. 124(1)). As a general proposition, the effect of s. 124 of the 1988 Act is that a person's entitlement to compensation under the 1988 Act is limited to that which he or she would have received under the legislation which was in force at the time he or she was injured. Exceptions occur. Such an exception occurs in certain circumstances in relation to compensation payable under s. 27 of the 1988 Act and we will return to that later.

Claim for compensation in respect of permanent impairment that occurred before 1 December, 1988 and during the operation of the 1971 Act

Sections 124(3) and (4) relate, among others, to claims for compensation under s. 24 in respect of a permanent impairment that occurred before the commencing day. Where a person suffers an impairment before 1 December, 1988 and the impairment occurred before 1 December, 1988, regard must be had to ss. 124(3) and (4). In so far as they are relevant, they provide that:

"(6) A person is not entitled to compensation under … section 24 … in respect of a permanent impairment, … being an impairment … that occurred before the commencing day, if:
(a)that person received compensation of a lump sum in respect of that impairment … under the … 1971 Act; or
(b)the person was not entitled to receive compensation of a lump sum in respect of that impairment …:
(i)…
(ii)…
(iii)in any other case – under the 1971 Act as in force when the impairment … occurred."

(4)The amount of compensation (if any) that a person is, by virtue of this section, entitled to receive under section 24 … in respect of a permanent impairment, … being an impairment … that occurred before the commencing day, shall be the same as the amount of compensation that would have been payable to that person, if this Act had not been enacted, under:
(a)…
(b)…
(c)in any other case – the 1971 Act as in force when the impairment … occurred."

Section 39(11) of the 1971 Act provides that:

"The compensation payable under this Act in respect of an injury resulting in partial loss by an employee of the efficient use of a part of the body specified in sub-section (4) or of the efficient use of such a part of the body for the purposes of the employment of he employee immediately before the injury, not being a loss referred to in sub-section (6), (7) or (10), is such percentage of the amount of compensation that would be payable under sub-section (3) in respect of an injury resulting in the loss by the employee of that part of the body as is –
(a)the percentage by which the injury resulted in the efficient use, immediately before the injury, of that part of the body being reduced; or
(b)the percentage by which the injury resulted in the efficient use, immediately before the injury, of that part of the body for the purposes of the employment of the employee immediately before the injury being reduced,

whichever is the greater percentage."

The word "loss" means a "permanent loss" (s. 39(15)).

Section 39(14) provides that:

"An amount of compensation referred to in this section is not payable in respect of an injury so long as the employee is, or is likely to become, totally incapacitated for work where the incapacity for work results, or, if it occurs, will result, in whole or in part from that injury."

While an employee is precluded from receiving compensation under s. 39 if his or her circumstances come within s. 39(14), he or she is entitled to receive compensation under s. 45 of the 1971 Act where an injury results in his or her being totally incapacitated for work. That provides for weekly payments calculated in accordance with its provisions.

Section 46 provides for compensation to be paid to an employee where an injury results in his or her being partially incapacitated for work. Again weekly payments are paid in accordance with the terms of that section. Regard must, however, be had to s. 26 which applies where an employee who is partially incapacitated is unable to obtain suitable employment. It provides:

"(1) Where –
(a)an employee who is partially incapacitated for work as a result of an injury has taken all reasonable steps to obtain, but has failed to obtain, suitable employment; and
(b)but for this sub-section, compensation in accordance with section 46 would be payable to the employee in respect of that injury,

then –
(c)compensation in respect of that injury is payable to the employee in accordance with section 45 as if the employee were totally incapacitated for work as a result of that injury; and
(d)compensation in accordance with section 46 in respect of that injury is not payable to the employee." (s. 26(2))

Claim for compensation for non-economic loss where injury results in a permanent impairment that occurred before 1 December, 1988 and during the operation of the 1971 Act

It is clear from the case of Comcare v Bozicevic that an employee is entitled to compensation under s. 27 of the 1988 Act if he or she is entitled to compensation under s. 24 where that entitlement is determined pursuant to s. 39 of the 1971 Act.

CONSIDERATION

Neither party questioned that Mrs Luckett had suffered an injury within the meaning of the 1988 Act and neither questioned what that injury was. It has been accepted as tenosynovitis of her right arm and right rotator cuff tendonitis.

In relation to whether Mrs Luckett suffers from an impairment, neither party questioned that she has suffered an impairment and that she did so before the commencement of the 1988 Act on 1 December, 1988. The first issue in dispute between them is whether her injury resulted in that impairment. If it did not, she is not entitled to compensation pursuant to s. 24 of the 1988 Act and there is no need to go to s. 39 of the 1971 Act.

Mrs Luckett, Dr Welsh, Dr Cooke and Miss Stephenson all gave evidence regarding her impairment. Mr Marks challenged Dr Cooke's credibility. He did so on the basis that, if his third report was prepared in January, 1994, he was inconsistent in then signing a document that she could undertake the return to work programme in May, 1994. He was also incorrect, Mr Marks submitted, in denying that he had operated on 17 occasions on Mrs Luckett when Mrs Luckett had evidence of operations occurring on 10 occasions.

We were not given the evidence to which Mr Marks refers but it seems to us that it is more probable than not that there has been a misunderstanding between Dr Cooke and Mrs Luckett as to what constitutes an operation. Removal of dead bone and pus may well qualify as an operation to a non-medical person but not to a surgeon. In view of the explanation he gave to Mr Marks, it seems to us that Dr Cooke answered Mr Marks' question in terms of what he understood an operation to be. As the details of the operations as understood by Mrs Luckett were not put to him, we cannot go further.

With regard to Dr Cooke's third report, we do not understand the force of Mr Marks' submission. Certainly, it would seem to have been made after 12 March, 1993 for Dr Cooke said in his letter of that date that he would forward a detailed report in the near future. While January, 1994 cannot necessarily be described as being in the near future, it would seem that the undated report is the detailed report to which he referred in that letter. Therefore, it was prepared at some time after 12 March, 1993.

Mr Marks would seem to think that it was prepared after her return to work programme for, if it were prepared in January, 1994, it would reflect poorly upon his later signing in May, 1994 her return to work programme. If Dr Cooke's report were written before the return to work programme, Mr Marks submitted, he "… obviously set Mrs Luckett to fail thereby creating the desired effect of the Northern Territory Department of Health; the resignation on (sic) Mrs Luckett". Mr Marks said that no reference was made to Dr Cooke's report in a letter from a delegate of Comcare to Mrs Luckett on 27 May, 1994 and to Mrs Luckett on 25 May, 1994. No reference was made to Dr Cooke's opinion that the prospects of her returning to any gainful employment seemed remote. Both letters were attached to written submissions but not tendered at the hearing. Although a copy of the solicitor's letter of 26 May, 1994 to which the delegate was responding was not attached, it would seem that the delegate's letter was concerned solely with the return to work programme and whether or not a further assessment was needed by Dr Cooke at that time.

Having regard to all of the documents and the pattern of events, it seems to us more probable than not that Dr Cooke's third report did pre-date the return to work programme and his consideration of whether or not Mrs Luckett could undertake it. In his first report, he carefully considered her condition. When his opinion was asked for on the second occasion, he was prepared to answer the questionnaire but clearly wanted to give the matter more thought. That he did and the result was his third report. Certainly, he expressed the view in his third report that she be considered for retirement from her employment in Darwin on the grounds of invalidity and that her prospects of returning to any form of gainful employment in Darwin seemed remote. That view is not, however, inconsistent with his later clearing her to undertake a return to work programme in which the specific duties are identified, the time to be spent on each is specified and the circumstances in which they are to be performed are clearly detailed. His views in the third report were carefully confined to her employment in Darwin and not to her employment generally. That they were so confined was consistent with the views expressed in his first report that he felt, despite her stated intention to the contrary, she did not want to work in Darwin. When regard is had to the whole of his reports and to the pattern of his events, we are satisfied that Dr Cooke was not setting Mrs Luckett to fail the return to work programme. It follows that we do not consider that Dr Cooke's credibility is in question.

Mrs Luckett's impairment is the loss of the use of her arm and shoulder. We are satisfied that it is a permanent impairment. Miss Ford submitted that her loss is a result of conditions other than her injury which is tenosynovitis of her right arm and right rotator cuff tendonitis. In doing so, she relied on Dr Cooke's oral evidence. While Dr Cooke conceded in his oral evidence that other factors may have led to her present condition, he did not express an opinion as to what was the more likely cause of her condition. This was a matter to which he gave greater attention in his third written report. Dr Welsh considered in his oral evidence that her loss is due to a combination of cervical and shoulder pathology. As Dr Welsh acknowledged, he had only seen her for the first time on 19 April, 1995 and so had to rely on the opinions of others. That limited his ability to comment upon the cause of her symptoms. In his written report, he had considered the matter and had had expressed the view that her loss could be traced back to her original problems.

The issue is not very easy to resolve but, on balance, we prefer the written evidence of both Dr Welsh and Dr Cooke to their oral evidence. We do so on the basis that it was a considered view and that neither expressed a definitive contrary view in their oral evidence. Consequently, we find that the loss of the use of her right arm and shoulder is the result of her injury and not the result of some other unrelated cause such as cervical spondylosis.

That brings us to the assessment of the percentage by which her injury has resulted in the efficient use of her arm and shoulder being reduced. It also brings us to the assessment of the percentage by which it has resulted in the reduction of the efficient use of her arm and shoulder for the purposes of her employment immediately before the injury. The greater percentage is the percentage to which regard is had for the purposes of s. 39(11).

If we were to accept Mrs Luckett's evidence, we would have to find that she is, and has been since some time before 1 December, 1988, totally incapacitated for any type of work. We would then have to find that, pursuant to s. 39(14), she is not entitled to a payment under s. 39 of the 1971 Act and so is not entitled to a payment under s. 24 of the 1988 Act. A further consequence of that finding would be that she would not be entitled to a payment for non-economic loss pursuant to s. 27 of the 1988 Act.

Mrs Luckett's evidence, however, must be considered with the evidence of her treating specialists, Dr Welsh and Dr Cooke, and of Miss Stephenson. None has said that she is totally incapacitated for work. Given their experience in the area, we prefer their evidence as to her capacity or otherwise. Consequently, we find that she is not totally incapacitated for work.

Both Dr Cooke and Dr Welsh considered that Mrs Luckett had suffered a 20% loss in the efficient use of her arm and shoulder. They had made their assessment on the basis of the American Medical Association's Guides to the Evaluation of Permanent Impairment. We note that it would be inappropriate for them to have used the Guide approved under the 1988 Act in assessing impairment under s. 39 as it is appropriate only in assessing an impairment under s. 24 of the 1988 Act (see Comcare v Bozicevic). Miss Stephenson's evidence was that Mrs Luckett's condition had resulted in a loss of 80% of her employment options. Assessment of the loss of employment options is, however, a different concept from assessment of the degree of reduction of efficient use of a part of the body for the purposes of employment pursuant to s. 39(11)(a) or generally pursuant to s. 39(11)(a). Miss Stephenson herself acknowledged that loss of the use of a part of a part of the body (i.e. impairment) was a different concept from loss of employment options. In giving her oral evidence she said that, if she were looking at the impairment of Mrs Luckett, she would say that her impairment is in the order of 20 to 30% as she still has the use of the rest of her body. In contrast, she continued, Mrs Luckett's work opportunities are significantly narrowed. Miss Stephenson qualified her evidence by saying that she would defer to the opinion of an orthopaedic surgeon regarding a person's impairment provided he or she were fully briefed.

We must consider Mrs Luckett's loss of the efficient use of her right arm both generally and for the purposes of her employment immediately before her injury. In both situations, we have reached the same conclusion. That is so for the evidence of Dr Welsh, Dr Cooke and Miss Stephenson consistently supports our finding that she has suffered a 20% loss of the efficient use of her right arm as a result of her injury. It follows that we affirm Comcare's decision in assessing her entitlement to compensation for permanent impairment.

That brings us to her entitlement to compensation under s. 27. She is entitled to compensation under that section as her injury has resulted in a permanent impairment and compensation is payable in respect of that injury under s. 24 of the 1988 Act. In that regard, Mrs Luckett completed a Non-economic loss questionnaire (T documents, pages 109-112). She did not tick any of the boxes under the heading of "Suffering" which appeared under the more general heading of "Pain and Suffering". Immediately under the heading of "Suffering" appeared the words:

"Which one of the following descriptions best fits the suffering (mental disease) you experience? (Please indicate)" (T99/907, page 110)

There then appeared six questions which reflected those appearing in Table 1 of Part B (Guide to the Assessment of Non Economic Loss) in the Guide. At the beginning of that table explains what is meant by pain and suffering and reads:

"Only permanent pain and suffering is considered. Suffering is the mental distress as a result of the accepted conditions (it includes symptoms such as grief, anguish, fear, frustration, humiliation, embarrassment etc).
This table does not include temporary pain and suffering. Nor does it include speculation of future pain and suffering that has not yet manifested itself.
A score out of 5 is assessed for both pain and for suffering. These two scores are then combined with the scores derived from Tables 2, 3 and 4 using the combined value calculation (Table 5)."

The questionnaire refers to "mental disease" after the word "suffering" whereas the term used in Table 1 is "mental distress". We consider that the use of the expression "mental disease" is not only inconsistent with the explanation in Table 1 but is also misleading to a person asked to complete it. In ordinary language, mental distress, or suffering, does not equate with mental disease. There is no evidence that Mrs Luckett suffers from any mental disease and it is quite understandable that she omitted to answer the question. If properly framed, we find that she would have answered it.

On the basis of the evidence of Mrs Luckett, we are satisfied that her symptoms tend to dominate her thinking and that she has little time when she is free of them. She is able to perform some household activities provided she holds her arm to her side and has learnt to adapt by using her left hand for a variety of tasks. In view of that, we are not satisfied that she is unable to cope but are satisfied that she had difficulty in coping or performing activities. Further surgical treatment is not recommended by her specialists. Mrs Luckett said that she took eight Panadol a day to relieve her symptoms. Other treatment was not discussed. In view of these findings, we are satisfied that she should have been given a score of 4 for suffering and that this should have been taken into account in assessing her non-economic loss pursuant to s. 27 of the 1988 Act.

The formula prescribed in s. 27 for assessing Mrs Luckett's non-economic loss requires a determination of the degree of permanent impairment determined under s. 24. This is different from the percentage of reduction of the efficient use of a part of the body as assessed pursuant to s. 39 of the 1971 Act. While s. 124(4) of the 1988 Act provides that the amount of compensation a person in Mrs Luckett's circumstances is entitled to receive under s. 24 is not to exceed that which would have been payable under s. 39, it does not provide that the percentage of loss assessed under s. 39 is the percentage of permanent impairment determined under s. 24. That must be determined as a separate exercise under s. 24 and using the Guide.

The assessment under the Guide is an assessment of the percentage of whole person impairment. In so far as it relates to an upper extremity, the assessment is in accordance with range of joint movement. Except in relation to 0% and 5%, no regard is had to loss of function of a part of the body. Of those percentages which are relevant in this case, Table 9.1 provides the following percentages for levels of impairment:

"% DESCRIPTION OF LEVEL OF IMPAIRMENT
…
10ANY ONE of the following:
.loss of less than half normal range of movement of shoulder or elbow
.loss of half normal range of movement of wrist
.ankylosis of any joints of fingers 2 and/or 3

…
20ANY ONE of the following:
.loss of half normal range of movement of shoulder or elbow
.ankylosis of wrist

30Loss of more than half normal range of movement of shoulder or elbow
…"

The evidence of Dr Cooke, Dr Welsh and Dr Veltmeyer is all to the effect that she has lost less than half of her normal range of movement. It does not support a finding that she has lost more than half. Their evidence also supports a finding that she has more than a minimal loss of function of her shoulder. She has, therefore, suffered an impairment of 10% when assessed pursuant to Table 9.1. A figure of 10%, rather than of 8%, is the figure which should have been used by Comcare in assessing Mrs Luckett's non-economic loss pursuant to s. 27 of the 1988 Act.

For the reasons we have given we:

1.in relation to a reviewable decision of the respondent dated 16 November, 1998 in relation to the assessment of the applicant's entitlement to compensation for permanent impairment, affirm that decision; and
2.in relation to a reviewable decision of the respondent dated 15 June, 1999 in relation to the assessment of the applicant's entitlement to compensation for non-economic loss:
(1)set aside that decision; and
(2)remit the decision to the respondent for recalculation of the applicant's entitlement on the basis that:
(a)the percentage of permanent impairment determined under s. 24 of the Safety, Rehabilitation and Compensation Act 1988 to be the degree of permanent impairment suffered by the applicant is 10%; and
(b)a score of 4 is to be assigned for suffering in determining under the Guide to the Assessment of the Degree of Permanent Impairment the degree of non-economic loss suffered by the applicant.

I certify that the eighty seven preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President), Dr K P Kennedy (Member), Miss A M Brennan (Member)
Signed:          ...........................................
Dates of Hearing  16 March, 2000
Date of Decision  21June, 2000
Solicitor for the Applicant            Noel Woodall
  & Associates
Counsel for the Respondent         Miss E Ford
Solicitor for the Respondent         Barker Gosling

[2000] AATA 490

21 June 2000