Morton and Comcare
[2005] AATA 318
•8 April 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 318
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2004/117
GENERAL ADMINISTRATIVE DIVISION ) Re SUSAN MORTON Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr J.W. Constance, Senior Member
Dr M.D. Miller AO, Member
Date 8 April 2005
Place Canberra
Decision 1. The reviewable decision made 17 March 2004 is set aside.
2. In substitution the Tribunal decides:
1) that in the period between 1995 and 2003 inclusive Ms Morton suffered an injury resulting in permanent impairment within the meaning of the Safety, Rehabilitation and Compensation Act 1988 (Cth);
2) that the degree of permanent impairment of Ms Morton resulting from the injury is 24%;
3) that Comcare is liable to pay compensation to Ms Morton in respect of the injury pursuant to section 24 of the Act;
4) Comcare is liable to pay additional compensation to Ms Morton in respect of the injury pursuant to section 27 of the Act in accordance with the scores determined by the Tribunal.
3. Each party shall have liberty to apply for an order in relation to costs if necessary.
..............................................
Senior Member
CATCHWORDS
COMPENSATION – permanent impairment – pain and restricted movement in cervical spine – whether pain due to physiological pathology or psychology – whether pain permanent – assessment of whole person impairment and non-economic loss – decision set aside
Safety, Rehabilitation and Compensation Act 1988 (Cth) – s 24, 27
Commonwealth v Beattie (1981) 35 ALR 369
Tippett v Australian Postal Corporation (1998) 27 AAR 40
Halliday v Comcare Australia (1994) 19 AAR 431
Comcare v Kay (1997) 26 AAR 124
Comcare v Fiedler (2001) 115 FCR 328
Whittaker v Comcare (1998) FCR 532
REASONS FOR DECISION
8 April 2005 Mr J.W. Constance, Senior Member Dr M.D. Miller AO, Member 1. In 1996, as an employee of the Department of the Senate, Ms Morton suffered an injury to her right arm. Initially Comcare accepted liability for “severe tendonitis of the right forearm.” This was later extended to liability for “a sequelae injury of ‘adjustment disorder with depression’ that has been sustained as a result of the accepted physical injury”.
2. In 2003 Ms Morton made a claim for permanent impairment for “Continual pain in neck & both arms reduced strength in both arms depression, anxiety, teariness restricted mobility of neck”.[1] This claim was rejected.
[1] Exhibit A7, T17.
3. Ms Morton seeks a review of the decision of Comcare affirming the decision to reject her claim. It should be noted that at the hearing of the application for review Ms Morton did not seek to claim any permanent impairment arising from a psychiatric condition.
4. We have decided that Ms Morton has suffered permanent impairment resulting from a compensable injury and that she is entitled to compensation for that impairment and for the non-economic loss suffered as a result.
5. For the reasons we now set out the decision under review will be set aside and a decision will be made in substitution requiring Comcare to pay compensation.
THE STATUTORY FRAMEWORK AND CASE LAW
6. Section 24 of the Act provides for compensation for injuries resulting in permanent impairment. Its relevant provisions are:
“(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee’s condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.”
7.Relevant definitions in section 4 are:
“disease means
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation;”
“ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);”
“impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function;”
“permanent means likely to continue indefinitely;”
8. In Commonwealth v Beattie[2] the Full Court of the Federal Court decided that “pain brought on by work activity may constitute an aggravation of a pre-existing injury, even though no pathological change takes place”. In that case the Court was dealing with the interpretation of “injury” under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) but the principle is applicable to the present legislation.
[2] (1981) 35 ALR 369.
9. In Tippett v Australian Postal Corporation [3] Finkelstein J. said:
“What Beattie also makes clear is that the symptom of an injury, that is the experience of the injury, is part of the injury in respect of which compensation is payable. This proposition was confirmed by the Full Court in Commonwealth Banking Corp. v Percival (1988) 20 FCR 176 where is was said that while for many medical purposes it may be necessary to draw a distinction between the underlying injury and the symptoms of it that is not so for compensation law where it is fundamental that the symptom of an injury is a part of that injury.
Pain is the most common symptom of an injury. If the pain arising from an underlying condition is aggravated, that is increased or intensified, as a result of an employee’s employment then the employee will have suffered a compensable injury: Commonwealth Banking Corporation v Percival (1998) 20 FCR 176 at p 179-180, 209-210.”
[3] (1998) 27 AAR 40.
10. The meaning of the word “malfunction” in the definition of “impairment” was considered in detail in Halliday v Comcare Australia[4]. At paragraph 47 and 48 the Tribunal said:
[4] (1994) 19 AAR 431.
47. Turning to the word "malfunction", we are not aware of any authorities
which have considered the meaning of the word. Therefore, we have again
looked at the dictionary meanings. The Shorter Oxford English Dictionary does not define it as such but states that the prefix "mal" "... conveys the sense 'ill', 'wrong', 'improperly' ...". When taken with the meaning of "To fulfil
a function; to perform one's part" given to the word "function" by the same
dictionary, "malfunction" would mean to fulfil that function or to perform the
part wrongly or improperly. This accords with the meaning given to the word
"malfunction" by the Macquarie Dictionary when it states that it means "... to
fail to function properly ... failure to function properly." It accords also
with the meaning given in Blakiston's Gould Medical Dictionary (4th edition)
where it is said to mean "... failure to function normally or properly. 2. To
function abnormally or improperly." That dictionary also defines the word
"function", in part, as "1. The normal or special action of a part. ...".
48. There does not appear to be any significant discrepancy between the
various dictionaries as to the meanings of the words "damage" and
"malfunction". In the context of the definition of "impairment" in which
those words are used and in the context of the whole Act, there seems to be no reason why we should not adopt the ordinary meaning of those words.
Consequently, there will be an impairment of a part of the body or a bodily
system or function if it has been damaged in the sense that its usefulness or
value has been diminished or if it malfunctions in the sense that it fails to
perform normally or properly. We do not consider that we should "read down"
the definition of an impairment so that it refers only to those limitations
set out in the Guide.”
11. If it is decided that an employee has suffered an injury which has resulted in permanent impairment, section 24 then requires a determination of the degree of permanent impairment in percentage terms in accordance with the approved Guide.[5] Apart from exceptional circumstances not relevant here, compensation is not payable if the degree of impairment is determined to be less than 10%.[6]
[5] Comcare, Guide to the Assessment of the Degree of Permanent Impairment, 1998 (7th ed.), Commonwealth of Australia, Canberra.
[6] Sub-section 24(7), Safety, Rehabilitation and Compensation Act 1988 (Cth).
12. In applying the provisions of a Table set out in the Guide the matter for determination is the function of the particular part of the body which is dealt with in the Table. It is not necessary for us to determine the location of the injury which gives rise to the malfunction.
13. In Comcare v Kay[7] the Tribunal found that Ms Kay suffered pain in the shoulder but that there was no observable pathology to suggest any tear or wound. The Tribunal accepted medical evidence that the injury was unlikely to be a soft tissue injury as such an injury would be expected to have resolved. On appeal to the Federal Court Comcare argued that a Table dealing with musculo-skeletal injury could not be used to assess permanent impairment arising from pain in the shoulder where there was no pathology indicating a wound or tear to the shoulder. The Court rejected this argument saying:
“……the Tribunal properly addressed the issue of function/range of movement raised by Table 9.1 in the light of the evidence of Drs Woods and White. Its finding beyond this as to the location of the injury was unnecessary.” [8]
[7] (1997) 26 AAR 124.
[8] P.11.
14. The applicable tables of Part A of the Guide are 9.4 (Limb Function-Upper Limb) and 14.1 (Combined Values Chart). These tables deal with the calculation of compensation under section 24.
15. In applying Table 9.4, 10% impairment is awarded if the claimant “can use the limb for self care AND grasping and holding BUT has difficulty with digital dexterity”.[9] In Comcare v Fiedler[10] the Full Court of the Federal Court considered the meaning of the phrase “has difficulty with digital dexterity”. The Court rejected the proposition that there was a requirement for “very severe” or “very significant or substantial” difficulty. At page 334 the Court said:
“Something more than minimal problems with digital dexterity is required. But if a person, as a result of his injury, finds it troublesome or not easy to do tasks requiring digital dexterity, that will, adopting the approach to interpretation required by Whittaker at 544-545, justify a 10 per cent impairment assessment under par 1 of Table 9.4.”
[9] Comcare, Guide to the Assessment of the Degree of Permanent Impairment , (supra), p.34.
[10] [2001] 115 FCR 328.
16. In a situation where there is more than one impairment, Table 14 provides a scale to combine the relevant percentages to give one whole of person impairment. When a single injury results in impairment of different parts of the body the correct approach is to assess the whole person impairment in respect of each part of the body and then to apply the Combined Value Chart : Comcare v Fiedler (supra).
17. Section 27 provides for compensation for non-economic loss, which is additional to the amount payable under section 24 once an entitlement to compensation under the latter section has been determined. Section 27(2) sets out the formula for determining non-economic loss. Part B of the Guide provides the principles for determining the degree of non-economic loss to be used in applying the formula.
THE ISSUES
18. The issues for determination are:
1)has Ms Morton suffered an “injury” as defined in section 4 of the Act?
2)if so, has the injury resulted in an “impairment”?
3)if so, is that impairment “permanent”?
4)if so, what is the degree of permanent impairment?
5)what is Comcare’s liability (if any) to pay additional compensation for non-economic loss?
FACTS AND THE APPLICATION OF THE LAW
19. Unless otherwise stated the following findings of fact are based on the evidence of Ms Morton. We are satisfied as to the findings on the balance of probabilities.
20. Ms Morton was born on 10 July 1951 and is 53 years of age. In 1988 she commenced as a permanent employee of the Australian Public Service, initially as Senior Education Officer in the Parliamentary Education Office. Between 1994 and 1996 she acted as Secretary to two Senate Standing Committees and in addition, for part of the time, as Secretary to two Select Committees. Ms Morton worked extremely long hours under considerable pressure and was engaged in a substantial amount of keyboard work.
21. By the end of 1995 Ms Morton was experiencing pain in her right wrist and forearm. She consulted her general practitioner, Dr Wilson, and then, at the suggestion of her employer, she consulted Dr Eaton, an Occupational Physician.
22. Ms Morton suffered increasing pain during the first half of 1996 and in July 1996 she consulted a new general practitioner, Dr Sanderson. By this time she was suffering symptoms in the left arm as well as the right. On the advice of Dr Sanderson she was off work until August that year and was then on a gradual return to work until she achieved full-time hours in February 1997. Ms Morton then transferred to the National Audit Office where she remained for the next 3 years. This position involved less typing. With the assistance of various therapies and medication she continued full-time employment.
23. In early 2000 Ms Morton accepted an offer of secondment back to the Senate. With treatment to relieve her symptoms she worked successfully throughout 2000. In December 2000 she was appointed to a permanent position as Secretary to the Select Committee on Superannuation and Financial Services.
24. In 2001 Ms Morton’s work load increased dramatically, to the point where she was commonly working up to 14 hours per day. In evidence Ms Morton said:
“The symptoms of pain in my forearms increased as did the pain levels in my upper arms and neck. I had had pain in my neck before but I managed it by doing exercises, having massages, and taking pain relief medication. When I was working 14 hours daily, I was no longer able to manage it.”[11]
[11] Exhibit A3, para. 11.
We accept that evidence.
25. In 2002 Ms Morton took on additional duties and as a result of staff shortages her workload increased significantly. She was working 12 to 14 hours per day and involved in very considerable keyboard work. In 2003 a new computer system was introduced into Parliament House. The system was connected to Ms Morton’s office in January of that year. The system required Ms Morton to use more keystrokes and mouse clicks than she had previously and faults in the system required repeated keying of material. By April 2003 Ms Morton was suffering severe pain in both arms, upper back and neck and her grip strength was reduced. She was being treated with massage, exercises and medication for pain relief.
26. Ms Morton was unfit for work between April 2003 and August 2003. During this time, on the advice of Dr Eaton she undertook a 3 month course on injury management. She commenced a graduated return to work in August 2003 with minimal typing. She still experienced severe pain in her arms, neck and upper back, but managed to return to full-time work in October 2003. However as her employer was unable to find meaningful work which was within Ms Morton’s capabilities, Ms Morton accepted an offer of redundancy in November 2003.
27. Ms Morton’s condition did not improve when she ceased work and in early 2004 it worsened in that she suffered what she describes as “a crushing pain in my neck, shoulders and elbows”.[12]
[12] Ms Morton’s oral evidence 21.2.05.
28. At various times during 2004 Ms Morton received massage therapy, osteopathic treatment, chiropractic treatment and hydrotherapy. These treatments enabled Ms Morton to reduce the amount of medication she required for pain relief, but she continued to experience considerable pain and restriction in her fine hand movements in both hands.
29. At the hearing Ms Morton identified a number of activities which were restricted or totally excluded by her condition:
·she is unable to engage in previous pastimes of knitting, sewing, embroidering, calligraphy and jewellery making;
·it is very painful for her to write more than a few sentences at a time;
·it is painful to use a computer keyboard such that she avoids using a computer;
·she has difficulty using normal taps, opening jars and bottles and doing housework which involves wrist movement such as scrubbing;
·she is unable to garden;
·sleep is disturbed by pain in the arms and neck;
·she has tried swimming and kayaking as forms of exercise but was unable to continue because of pain in the arms;
·reduction in strength in the arms has reduced her ability to carry objects;
·her ability to drive a motor vehicle is restricted;
·she has difficulty using cutlery.
We accept Ms Morton’s evidence in this regard.
30. Paul Morton, Ms Morton’s husband gave evidence confirming many of the restrictions set out above. We accept that evidence.
Medical evidence
31. Dr Sanderson, Ms Morton’s General Practitioner since 1996, gave evidence and his reports and certificates are in evidence. In a certificate dated 12 August 1996 Dr Sanderson stated that Ms Morton was suffering from “very severe forearm tendonitis + regional pain syndrome.”[13] When giving evidence Dr Sanderson said that by regional pain syndrome he meant a condition in which sensation of pain was in excess of what would be expected from the offending tissue.
[13] Exhibit R3.
32. In April 2002 Dr Sanderson was of the opinion that Ms Morton had developed “very severe tendonitis of the extensor tendon’s[sic] of the right forearm and, to a lesser extent, of the left forearm.”[14] His opinion now is that if there was to be any improvement in Ms Morton’s condition it would be very minor and over a long period.
[14] Exhibit A6, T13.
33. In his certificate of 24 September 2003,[15] which accompanied Ms Morton’s Claim for Permanent Impairment, Dr Sanderson diagnosed her condition at that time as follows:
“Occupational overuse Injury involving the neck, both arms and wrists and hands. Initial Tendonitis both forearms R>L. Chronic Regional Neurogenic Pain Disorder both upper limbs and neck/associated symptoms of anxiety and depression.”
He recorded the impairment which resulted as:
“Persistent neck pain, pain right side of neck, right trapezius muscle and right scapular region, right upper arm, elbow, forearm, wrist and hand pain. Left forearm pain. Mood disturbance – adjustment reaction with symptoms of anxiety and depression.”
[15] Exhibit A9.
Dr Sanderson considered that the impairments had stabilised at this level indefinitely.
34. Dr Eaton gave evidence. He is an Occupational Physician at the Canberra Injury Management Centre where Ms Morton undertook an injury management course in mid 2003. He was involved in the management of Ms Morton during her participation in this course.
35. In giving evidence Dr Eaton expressed the opinion that Ms Morton suffered “genuinely distressing pain” resulting from some form of damage to the nervous system, although there may be a psychogenic component. He acknowledged that there were differing opinions within the medical profession as to the validity of his view, but he was of the opinion that it was becoming more widely accepted.
36. Dr Browne, Physician Rheumatologist, examined Ms Morton for the purpose of these proceedings on 3 May 2004 and gave evidence on her behalf. In his report of 4 June 2004[16] he expressed the view that:
“……Ms Morton has a severe upper limb overuse syndrome with features of neuropathic pain with central sensitisation of nociception to the degree that light relative non-repetitive mechanical tasks induce severe and persistent pain , which represents the so-called wind-up phenomenon associated with neuropathic pain.
She is permanently unfit for her pre-injury duties and I consider for any future duties involving sustained keyboard or computer work.
Ms Morton has significant impairment of limb function for activities of daily living, which will not be restored by any form of available therapy in the medium term.
Her condition is permanent and is totally work related.”
[16] Exhibit A2.
37. Dr Browne maintained these views in giving evidence. He did not agree that neuropathic pain may only occur with objective signs and was of the view that the medical and work history of Ms Morton indicated that an explanation of her pain based entirely on psychological grounds was not valid. In relation to the value of further treatment Dr Browne said that participation in further programs may assist Ms Morton to deal with her pain and to “pace herself” but that sometimes they could increase pain and exacerbate the situation.
38. Comcare called two medical practitioners, Dr Stevenson (Consultant Physician) and Dr Carr (Rheumatologist).
39. On 11 November 2003 Dr Stevenson examined Ms Morton for the purposes of giving evidence at this hearing. When asked as to the specific condition from which Ms Morton suffers he replied:
“There is no possible specific physical diagnosis, and no specific musculoskeletal or neurological condition. There was widespread pain in her neck, shoulders and arms without identifying underlying pathology. The known aetiology and progression of non-specific neck and arm pain in the workplace is now known to be strongly determined by psychosocial and psychological factors and less by physical…………………..The clinical picture is that of neck and arm pain presenting as a symptom of severe psychological distress.” [17]
[17] Medical Report, 19 November 2003, Exhibit R9, T22.
In giving evidence Dr Stevenson was of the opinion that impairment requires objective signs of “anatomical loss or physiological dysfunction”. He disagreed with the diagnosis of Dr Browne and Dr Eaton. Dr Stevenson also notes in his report that “on physical examination she had a full rather slow range of all cervical movement”, and, “[s]he has a normal range of cervical movement.”
40. On 31 August 2004 Dr Carr examined Ms Morton at the request of Comcare. He reported that he could not find any specific pathology and that therefore Ms Morton “has non-specific aches and pains as a regional pain syndrome in both upper limbs and her neck”. He said that he appreciated her perception of pain, but could not “objectify the problem.” He could not find any permanent impairment.[18] He made the further observation that “her neck is a little stiff in both directions, but with normal flexion and extension movements.”
[18] Exhibit R10.
41. In evidence Dr Carr said that he accepted Ms Morton’s description of her pain and that he frequently sees persons presenting with pain which does not have an identifiable pathological origin.
42. Having considered all of the medical evidence and the evidence of Ms Morton and Mr Morton we are satisfied that in 1995 Ms Morton suffered an injury to her right forearm, namely tendonitis, being an ailment that was contributed to in a material degree by her employment by the Commonwealth. Our satisfaction that her employment contributed in a material degree is based on the evidence of Ms Morton that her pain first arose at a time of very heavy workload and that there was no other incident which may account for this. We also rely on the opinions of Dr Sanderson and Dr Browne.
43. We are also satisfied that this ailment was aggravated by her employment over the following 8 years and at some time prior to 24 September 2003 the tendonitis had ceased but that, as a consequence of that injury and its aggravation, Ms Morton had developed a regional pain disorder. This disorder continues to cause her to suffer disabling pain in the neck, both arms and both hands.
44. We accept the evidence of Ms Morton as to the pain she suffers. We base this finding on our assessment of her as an honest witness and on the fact that none of the medical practitioners who gave evidence suggested that she was malingering. The real issue between the practitioners was the diagnosis of the cause of this pain. In our view, having found that the pain is genuinely being experienced and that it is a result of an injury contributed to in a material degree by Ms Morton’s employment, it is immaterial as to whether that pain has a determinable pathological cause or whether it is purely psychogenic or a combination of both. In this regard we rely on what was said by the Federal Court in Beattie v Comcare and Tippett v Australian Postal Corporation to which we have already referred. If, as was the situation in those cases, pain, which arises as a result of an employee’s employment, of itself can be regarded as an aggravation of an injury and therefore compensable (even if the initial injury was not compensable), it follows that it is unnecessary that we determine whether genuine pain, which is a result of an injury which was itself compensable, has a pathological or psychological basis.
45. We also rely on the Federal Court’s decision in Comcare v Kay (supra). Although the Court was dealing with the applicability of the various Tables in the Guide, it was clear that the Court did not regard it as necessary that the location of the injury be determined in order to make a finding that there was a malfunction of a limb and therefore an impairment.
46. However if we are incorrect in our view that in these circumstances the nature of the pain is immaterial, we prefer the evidence of Dr Browne, supported by Dr Sanderson, that Ms Morton suffers from neuropathic pain. We accept the evidence of Dr Browne and Dr Sanderson that this view has considerable (but not unanimous) support in the medical profession. On the other hand, Dr Stevenson and Dr Carr did not accept this view, but neither practitioner could provide a satisfactory explanation of Ms Morton’s condition. In particular we do not accept their statements that because they cannot ascertain an objective cause of the pain, Ms Morton does not suffer impairment. In at least one case, the doctor’s view appeared to have been determined by his understanding of what was required for impairment under New South Wales compensation law. In any event the determination of whether there is “impairment” within the meaning of the Act is a question of law for our determination and the views of witnesses on this issue is not of assistance. Their more detailed views on any disturbance of the functioning of Ms Morton’s upper limbs would have been more helpful.
HAS MS MORTON SUFFERED AN “INJURY” AS DEFINED IN THE ACT?
47. In view of our findings set out above we are satisfied that Ms Morton has suffered an injury within the meaning of section 24 of the Act. We are satisfied that the pain which she suffers in her arms, hands and neck is an ailment and that this ailment and the aggravation of it were contributed to in a material degree by Ms Morton’s employment. On this basis the ailment and/or its aggravation come within the definition of “disease” and therefore within the definition of “injury”.
HAS THE INJURY RESULTED IN AN “IMPAIRMENT”?
48. We are satisfied that Ms Morton suffers a malfunction[19] of her arms, hand and neck. The experiencing of pain of sufficient intensity and consistency as to limit the activities Ms Morton can carry out in the way she has described amounts to a malfunction. Similarly the stiffness in her neck amounts to a malfunction of that part of her body.
[19] See the definition of “impairment”, paragraph 7 of these reasons.
49. In deciding that there are malfunctions as outlined we rely on the evidence of Ms Morton as to the activities which are now restricted as set out in paragraph 29. In particular we take into account the restriction on Ms Morton to use a keyboard or to write for any extended period and her inability to engage in the various pastimes she previously enjoyed.
IS THE IMPAIRMENT “PERMANENT”?
50. We are satisfied that the impairment is “likely to continue indefinitely” and is therefore “permanent” as defined in section 4 of the Act. We base this finding on the evidence of Dr Sanderson set out in paragraph 29 and 30 and Dr Browne in paragraph 33. Also we have had regard to the requirements of section 24(2) set out in paragraph 6 above. We are satisfied that the duration of the impairment (in excess of 9 years) and the evidence of Dr Sanderson and Dr Browne that improvement (if any) is unlikely, all support the view that the impairment is permanent. We are satisfied also that the extensive and varied treatment undertaken by Ms Morton is all that is reasonable in the circumstances.
WHAT IS THE “DEGREE” OF THE PERMANENT IMPAIRMENT?
51. The medical practitioners differed in their assessment of the extent of the impairment (if any) suffered by Ms Morton. In addition to the assessments based on physical examination the practitioners were asked to comment upon their observations of a video which was part of Comcare’s case.[20] The video was a compilation of tape recorded between 11 and 17 February 2005. Amongst other things it showed Ms Morton driving a motor vehicle, using a key to unlock a car door, examining and folding clothing and a towel, shopping, carrying a handbag in one hand and a bag containing a file in the other and eating a meal in a restaurant.
[20] Exhibit R8.
52. Dr Sanderson assessed the degree of Ms Morton’s whole person impairment as follows:
“right upper limb (difficulties grasp/hold) 20%
left upper limb (difficulties dexterity) 10%
cervical spine (minor restriction) 5%.[21]”
[21] Exhibit A7, T15.
53. Dr Eaton assessed Ms Morton’s whole of person impairment in respect of the right arm at 20%, left arm at 10% and the cervical spine at 5%.[22] He did not see anything in the video which caused him to change this assessment.
[22] Exhibit A9.
54. Dr Browne’s assessment was 10% in respect to each arm and 5% in respect to the cervical spine.[23]
[23] Exhibit A2.
55. In relation to the activities of Ms Morton shown on the video, Dr Browne agreed that they indicated some digital dexterity, but was of the view that it is the ability to maintain such activities over time which is the critical factor in assessing dexterity.
56. As both Dr Stevenson and Dr Carr could find no physical cause of the pain suffered by Ms Morton they were therefore both of the view that there was no impairment.
57. Dr Stevenson was of the view that the activities of driving, using the key in the car door and using a knife and fork indicated that there was nothing to suggest upper limb malfunction.
58. Dr Carr gave evidence that having viewed the video it did not appear that Ms Morton had any difficulty with digital dexterity. He also took into account that Ms Morton had been able to write during his examination.
59. We prefer the evidence of Dr Browne that the degree of impairment in respect of each arm is 10%. The evidence of Ms Morton and Mr Morton satisfies us that she has difficulty with dexterity in each hand. The video evidence causes us to conclude that she can grasp and hold with each hand, but it does not affect our view of her digital dexterity. Looking at the activities of daily living as required by the Guide we are satisfied that Ms Morton finds it “troublesome” to use cutlery when eating, and to use ordinary taps in bathing. We are also satisfied that from time to time her hands shake causing difficulty in eating. The evidence of Ms Morton also satisfies us that the pain in her arms interferes with her sleeping, but for reasons which are not apparent to us, the Guide does not regard sleeping as an activity of daily living and we do not take it into account.
60. We are not satisfied that Ms Morton has no digital dexterity or that she has difficulty in grasping and holding in the activities of daily living and therefore we do not accept the views of those doctors who put the degree of whole person impairment in respect of either limb at 20%.
61. We accept the evidence of Drs Sanderson, Eaton and Browne that the degree of impairment in respect of Ms Morton’s cervical spine is 5%. Table 9.6 requires “minor restrictions of movement” to establish this. It is consistent with the evidence of Ms Morton and the medical practitioners.
62. Having applied Table 14 to the above percentages we determine that Ms Morton suffers a 24% whole of person impairment as a result of her injury. This figure was determined by using the Table to combine the 10% right arm and 5% neck impairment and then combining this result with the 10% left arm impairment.
63. The notes to the Table indicate that 3 or more percentage impairments can be combined, by selecting “any two” percentages and combining them by finding the intersection on the Table (with the higher score being used on the vertical axis and the lower score on the horizontal axis) and then combining this combined percentage and the third percentage, again using the Table. However, we observe that if 10% and 10% are combined first and then 5%, the final combined score is 23%. If 10% is combined with 5%, and then 10%, the final combined score is 24%. Such a discrepancy is not dealt with by the Guide. We have determined the higher score is applicable as the Guide relates to legislation intended to benefit workers. This approach to construction of the Guide is consistent with the Full Federal Court decision of Whittaker v Comcare.[24]
[24] (1998) 86 FCR 532.
WHAT IS COMCARE’S LIABILITY TO PAY ADDITIONAL COMPENSATION FOR NON-ECONOMIC LOSS?
64. It is now necessary to assess Ms Morton’s non-economic loss by applying Part B of the Guide.
65. Taking into account all of the evidence, which includes Ms Morton’s statements in her Compensation Claim,[25] we have determined the following scores:
[25] Exhibit A7, T 15 and the applicant’s non-economic loss questionnaire at T16.
Pain 4
Suffering 4
Mobility 0
Social relationships 1
Recreation & leisure 3
Other Loss 0
Loss of Expectation of Life 0
The above scores relate to the following descriptions in the Guide:
Pain“Pain occurring most of the time. Restrictions on activity. Resistant to treatment”.
Suffering“Symptoms wide ranging. Tend to dominate thinking. Little time when free of symptoms. Difficulty coping or performing activity. Treatment necessary”.
Mobility“No or minimal or no restrictions on mobility”.
Social relationships “Minor interference with personal relationships, causing some reduction in social activities and contacts”.
Recreation/Leisure “Unable to continue activity. Alternative less rewarding activity possible”.
Other loss“Nil or minimal disadvantages”.
Loss of Expectation of Life “Loss of life expectancy of less of than one year”.
66. Comcare is liable to pay Ms Morton compensation for non-economic loss in accordance with the scores we have determined above.
DECISION
67.The reviewable decision made 17 March 2004 is set aside.
68.In substitution the Tribunal decides:
5)that in the period between 1995 and 2003 inclusive Ms Morton suffered an injury resulting in permanent impairment within the meaning of the Safety, Rehabilitation and Compensation Act 1988 (Cth);
6)that the degree of permanent impairment of Ms Morton resulting from the injury is 24%;
7)that Comcare is liable to pay compensation to Ms Morton in respect of the injury pursuant to section 24 of the Act;
8)Comcare is liable to pay additional compensation to Ms Morton in respect of the injury pursuant to section 27 of the Act in accordance with the scores determined by the Tribunal.
69.Each party shall have liberty to apply for an order in relation to costs if necessary.
I certify that the 69 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J.W. Constance, Senior Member and Dr M.D. Miller AO, Member
Signed: .....................................................................................
AssociateDates of Hearing 21-23 February 2005
Date of Decision 8 April 2005
Counsel for the Applicant Ms J. Gotschalk
Solicitor for the Applicant Pamela Coward & Associates
Counsel for the Respondent Ms L. Walker
Solicitor for the Respondent Sparke Helmore
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