Mark Holden and Comcare

[2015] AATA 422

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL                 )

)No: 2014/3592

General Administrative Division           )

Re: Mark Holden
Applicant

And: Comcare
Respondent

DIRECTION

TRIBUNAL:             Jill Toohey, Senior Member

DATE:   25 June 2015

PLACE:                  Sydney

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

a)Where at paragraph 33 the decision reads “398” the decision shall now read “38”.

b)Where after paragraph 40 the decision reads:

“Representative for the Applicant       Mr Andrew Dillon, Counsel

Ms Bianca Audsley, Australian Government Solicitor

Representative for the Respondent     Mr Bill Loukas, Counsel

Ms Jennifer George, Brazel Moore Lawyers”

the decision shall now read:

“Representative for the Respondent  Mr Andrew Dillon, Counsel

Ms Bianca Audsley, Australian Government Solicitor

Representative for the Applicant        Mr Bill Loukas, Counsel

Ms Jennifer George, Brazel Moore Lawyers”

..............................................
Senior Member J Toohey

[2015] AATA 422  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/3592
Re	Mark Holden
APPLICANT
And	Comcare
RESPONDENT

Decision

Tribunal	Senior Member J F Toohey
Date	15 June 2015
Place	Sydney

The Tribunal affirms the decision under review.

.............................................

Senior Member J F Toohey

CATCHWORDS – compensation – permanent impairment – whether degree of permanent impairment increased by 10 per cent – decision under review affirmed

Legislation

Safety, Rehabilitation and Compensation Act 1988 ss 24, 25, 27, 28

Secondary Materials

Comcare Guide to the Assessment of the Degree of Permanent Impairment

American Medical Association Guides to the Evaluation of Permanent Impairment 5^th edition

REASONS FOR DECISION

Senior Member J F Toohey

Background

1. In November 1990, while employed by the Department of Defence, Mr Mark Holden sustained an injury to his left shoulder and neck.  Comcare accepted liability to compensate him for left brachialgia due to cervical disc protrusion.  In June 1991, Mr Holden suffered a further injury to his left shoulder and, in November 1991, underwent surgery to his cervical spine. 

2. In September 1995, Mr Holden was paid lump sum compensation under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) for a whole person impairment of 10 percent of his cervical spine.

3. In February 2011, Mr Holden underwent further surgery to his cervical spine.  In July 2012, he was paid further lump sum compensation for a whole person impairment of 28 percent of his cervical spine.

4. In December 2013, Mr Holden claimed compensation for a further increase in the whole person impairment of his cervical spine.  On 2 June 2014, Comcare affirmed a determination denying liability to compensate him further.

   Legislation

5. Section 25(4) of the SRC Act provides:

   Where Comcare has made a final assessment of the degree of permanent impairment of an employee (other than a hearing loss), no further amounts of compensation shall be payable to the employee in respect of a subsequent increase in the degree of impairment, unless the increase is 10% or more.

6. The degree of permanent impairment resulting from an injury is determined under the provisions of the Guide to the Assessment of the Degree of Permanent Impairment (the Guide) issued by Comcare from time to time: ss 24(5) and 28. It is agreed that Table 9.15 of Edition 2.1 of the Guide is the applicable Table for assessing Mr Holden’s accepted condition.

7. It was agreed previously that Mr Holden’s degree of impairment was 28 percent on Table 9.15, the criteria for which are:

   28Alteration of motion segment integrity (at least 3.5mm of translation of one vertebra on another or angular motion of more than 11° greater than at each adjacent level)

   or

   Bilateral or multilevel radiculopathy with radiologically verified disc herniation consistent with the radiculopathy

   or

   Loss of motion of a motion segment due to a developmental fusion or successful or unsuccessful attempt at surgical arthrodesis

   or

   Compression fracture of one vertebral body of more than 50% without residual neural compromise

8. The issue in these proceedings is whether Mr Holden’s degree of impairment has increased by 10 percent or more such that he meets the criteria for whole person impairment of 38 percent which are:

   38Significant upper extremity impairment requiring the use of upper extremity external functional or adaptive device(s); There may be total neurological loss at a single level or severe, multilevel neurological dysfunction

   or

   Structural compromise of the spinal canal with severe upper extremity motor and sensory deficits but without lower extremity involvement.

9. Comcare contends that the degree of Mr Holden’s impairment does not satisfy the criteria for a rating of 38 percent and it is therefore not liable to compensate him further. 

   Medical evidence

10. Mr Holden was not required to give oral evidence.  It is agreed that the degree of his impairment is a matter for medical evidence.

11. Written reports were provided, and oral evidence given, by Professor Y A E Ghabrial and Dr Roger Pillemer, orthopaedic surgeons who assessed Mr Holden for the purposes of these proceedings.

12. Documents provided to the Tribunal by Comcare (the “T-documents”) include reports dating from Mr Holden’s original injury from his treating and assessing doctors. 

    Professor Ghabrial’s reports

13. Professor Ghabrial saw Mr Holden for assessment on 10 September 2014.  He reported that, on examination, he found “marked muscle guarding with marked limitation of movements” and generalised weakness all over the neck, and “[n]eurological assessment of the upper limbs showed generalised weakness in his left arm with sensory changes consistent with severe radiculopathy”.  Professor Ghabrial noted that a CT scan on 3 November 2011 showed “extensive laminectomy between the C3 and T1 vertebrae with posterior fixation of the plate and screws” and an MRI on the same date showed “multiple level foraminal stenosis however there were artefacts consistent with the spinal hardware”.  He noted that nerve conduction studies on 19 April 2012 to Mr Holden’s upper limbs showed no abnormalities.

14. Professor Ghabrial reported that “clinical assessment and investigations suggested severe stenosis in the cervical spine”; Mr Holden remained “completely restricted regarding activities involving lifting, bending and twisting as well as excessive use of his upper limbs or any use of the upper limbs above the shoulder level.”

15. In a brief subsequent report, Professor Ghabrial added that he had assessed Mr Holden’s degree of permanent impairment as 38 percent “as the result of a structural compromise of the spinal canal with severe upper extremity motor and sensory deficits but without lower extremity involvement”.

    Dr Pillemer’s report

16. Dr Pillemer saw Mr Holden for assessment on 18 September 2014.  He reported that, on examination, Mr Holden “removed his upper garments today and showed marked restriction of cervical movement in all directions associated with considerable discomfort”; he was able to elevate his right arm to 160° with discomfort and showed “fairly significant residual restriction of left shoulder movement”.  Mr Holden had the following degrees of left shoulder movement:

Movement	Range
Flexion	120°
Extension	30°
Abduction	50°
Adduction	30°
Internal rotation	70°
External rotation	40°

1. Dr Pillemer reported that “[t]he most noticeable finding was that he did have evidence of T1 and/or ulnar nerve involvement with loss of his 1^st dorsal interosseous and early clawing of his left hand” but it was “difficult to determine whether this is nerve root involvement or peripheral nerve because of the diffuse sensory loss”.  Mr Holden was “able to exert 24 kg of grip strength on the right but unable to exert any grip strength at all on the left side”, matters Dr Pillemer thought “indicative of voluntary inhibition.”

2. Dr Pillemer concluded in his report that Mr Holden has been left with “significant ongoing symptoms with restriction of cervical movement, significant limitation of movement of his left shoulder at this stage, and evidence of neurological involvement particularly of the T1 nerve root and/or ulnar nerve”.  While accepting Mr Holden has “very significant ongoing problems”, he thought there were “features of an additional functional component as evidenced by the diffuse sensory loss, and the inability to exert any grip strength at all on the left side”.

3. In Dr Pillemer’s view, Mr Holden has a 28 percent degree of permanent impairment on Table 9.15 rather than 38 percent because:

   Despite his significant impairment of his left upper extremity, there is not total neurological loss at a single level or severe multilevel neurological dysfunction and he does not require the use of external functional or adaptive devices.  In addition … there is no structural compromise of the spinal canal, severe upper extremity motor and sensory deficits.

4. In coming to this assessment, Dr Pillemer reported he took into account that Mr Holden had travelled to Sydney by train from Woy Woy to see him, and he was “able to remove and replace two upper body garments today, the singlet, over his head” indicating “an additional significant functional component” which was “in keeping with significant exaggeration”.

   Oral evidence – Professor Ghabrial

5. Giving oral evidence, Professor Ghabrial said he read Table 9.15 as comprising three criteria, the second of which Mr Holden met because he has “severe multilevel neurological dysfunction” from C3 to T1, and his generalised weakness involves multiple levels; and he met the third criterion, being “structural compromise of the spinal canal with severe upper extremity motor and sensory deficits but without lower limb involvement”. 

6. For Mr Holden, it is submitted that Professor Ghabrial’s understanding of the criteria for 38 percent impairment in Table 9.15 is correct.  The respondent submits that Professor Ghabrial misread Table 9.15 as comprising three separate criteria, rather than two.  For the reasons discussed below, I agree with the respondent on this point.

7. In relation to the criterion structural compromise of the spinal canal with severe upper extremity motor and sensory deficits but without lower extremity involvement, Professor Ghabrial gave evidence that Mr Holden’s spinal canal “has to be structurally compromised” or he would not have undergone a fusion with the associated “hardware”.  He found multilevel weakness of Mr Holden’s whole left arm, including his ulnar nerve, all of which he considered were related to his neck.

8. Professor Ghabrial gave evidence that, in his view, there was no exaggeration on Mr Holden’s part and he was “quite genuine”. 

9. In cross-examination, Professor Ghabrial agreed that radicular pain may be, but is not necessarily, evidence that the spinal canal is itself compromised; it can be narrowed by degenerative changes, bony spurs, bulging discs or thickened ligaments.  He agreed that the reports in November 2011 and March 2012 of Dr Nazih Assaad, who performed the surgery on Mr Holden’s cervical spine in 2012, which referred to MRI and CT scans showing “good alignment” and “a capacious canal with no evidence of cord compression”, indicated that Mr Holden’s spinal canal was “properly maintained and not compromised”.  However, he remained of the view that the 38 percent rating was appropriate because of Mr Holden’s “multilevel neurological dysfunction”.

   Oral evidence – Dr Pillemer

10. Dr Pillemer did not agree with Professor Ghabrial that Mr Holden has “severe multilevel neurological dysfunction”.  In particular, he said, there were no findings of, for example, muscle wasting, scarring, restriction of movement or sensory change to support Professor Ghabrial’s opinion.  Moreover, nerve conduction studies by Dr Denis Crimmins in April 2012 were reported as normal, a finding that Dr Pillemer said was “simply not possible” in a person with either total neurological loss at a single level or severe multilevel neurological dysfunction.

11. Dr Pillemer gave evidence that structural compromise of the spinal canal includes anything interfering with its stability, such as a fracture or disc lesion protruding, or osteophytes protruding as a result of osteoarthritis, all of which would have an effect on the spinal cord itself in the form of myelopathy.  However, neither the CT nor the MRI scans in his view showed evidence of structural compromise of Mr Holden’s spinal canal.

12. In relation to his comment that Mr Holden “showed features in keeping with significant exaggeration”, Dr Pillemer said he based this firstly on the apparent diffuse hypaesthesia to pin prick involving the whole of Mr Holden’s left side for which he said there was no anatomical explanation.  Secondly, Mr Holden was unable to exert any grip strength at all which was “purely a voluntary thing.”

13. Counsel for Mr Holden put to Dr Pillemer that his conclusion of exaggeration was based, at least in part, on a contradiction in that he reported that Mr Holden showed “marked restriction of cervical movement” and “considerable discomfort” on removing and replacing his upper garments, while at the same time concluding that he was able to replace both upper garments “without a particular problem.”  After some discussion during which Counsel and Dr Pillemer seemed to be at cross purposes, Dr Pillemer clarified that his intention was to say that he observed Mr Holden replace his clothes without restriction while unobserved, in contrast to the marked restriction he demonstrated on examination.  I accept that is what Dr Pillemer intended and that there is no real contradiction in this regard.

    Consideration

14. For Mr Holden, it is submitted that Professor Ghabrial’s reading of the criteria for 38 percent impairment in Table 9.15 is correct.  It is conceded that Mr Holden does not require the use of an “upper extremity external functional or adaptive device(s)”, but it is submitted that it is sufficient that he meets the second “trunk” of this criterion, being severe, multilevel neurological dysfunction.  It is further submitted that he meets the remaining criterion, being structural compromise of the spinal canal with associated deficits.

15. It is submitted that this reading finds support in the semi-colon between Significant upper extremity impairment requiring the use of upper extremity external functional or adaptive device(s) and There may be total neurological loss at a single level or severe, multilevel neurological dysfunction.

16. In my view, that understanding of Table 9.15 is not correct.  The sentence or phrase following the semi-colon is by way of explaining the degrees of single or multilevel dysfunction that may accompany the significant upper extremity impairment in the first sentence or phrase.  Whatever the nature and degree of the severe upper extremity impairment, it must result in the need for functional or adaptive device(s).  They are not alternatives.  If they were, the word “or” could be expected to appear in place of the semi-colon in the way that “or” divides the alternative criteria in each of the other percentage impairments.  The second sentence or phrase fulfils much the same function as references to “Findings may include …” in 8 percent ratings in Table 9.15 and 9.16.

17. As Mr Holden does not require the use of “upper extremity external functional or adaptive device(s)”, he does not satisfy the first criterion for a rating of 398 percent.  It remains to consider whether he satisfies the criterion regarding structural compromise.  It is common ground that Mr Holden has “no lower extremity involvement”.

18. In this regard I prefer the evidence of Dr Pillemer to Professor Ghabrial.  In my view, Dr Pillemer was better able to support his conclusions than Professor Ghabrial, and his view was supported by the CT scan and MRI which showed no evidence of spinal cord compression, and the report of Dr Assaad, who performed the fusion in February 2012, confirming they showed “a capacious canal”.  Professor Ghabrial agreed with Dr Pillemer that there was no evidence of the myelopathy that would be created by narrowing of the spinal canal and pressing on the spinal cord.  Even allowing that there is evidence of nerve root impingement, particularly at T1, I accept Dr Pillemer’s view that is not evidence itself of structural compromise of the spinal canal.

19. I am satisfied that Mr Holden’s permanent impairment is correctly rated at 28 percent.

20. For Mr Holden it is submitted that, even if the rating of 28 percent is correct, it is open to the Tribunal, on the basis of Dr Pillemer’s report, to add to it a rating of nine percent under Table 9.11 for Mr Holden’s left shoulder, and a rating of five percent under Table 9.13.1 for the T1 impingement on his ulnar nerve, giving an impairment rating of 40 percent. 

21. It is not necessary to consider the correctness of segregating Mr Holden’s impairment in the manner contended for.  The application of the Combined Value Chart in the American Medical Association’s Guides to the Evaluation of Permanent Impairment 5^th edition, (AMA Guides) which is reproduced at pages 210-212 of the Guide, shows it would not assist Mr Holden.

22. The instructions at page 209 of the Guide for combining any two impairment values are to “locate the larger of the values on the side of the chart and read along the row until you come to the column indicated by the smaller value at the bottom of the chart”.  The intersection of the row in the column is the combined value.  If three or more impairment values are to be combined, they are sorted from highest to lowest and, starting with the highest, combined in the same way.  Combining ratings of 28 percent, nine percent and five percent gives a combined rating of 37 percent.

    Conclusion

23. I am satisfied that Mr Holden has a 28 percent degree of permanent impairment for his accepted condition.  As the degree of his impairment has not increased by 10 percent or more, his claim cannot succeed.

24. I affirm the decision under review.

41.       I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. 

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Associate

Dated 15 June 2015

Date(s) of hearing

30 April 2015

Representatives for the Applicant

Mr Andrew Dillon, Counsel

Ms Bianca Audsley, Australian Government Solicitor

Representatives for the Respondent

Mr Bill Loukas, Counsel
Ms Jennifer George, Brazel Moore Lawyers