Pangratis and Comcare (Compensation)

[2016] AATA 524

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )
  )         No: 2015/4320
GENERAL DIVISION  )

Re: Helen Pangratis
Applicant

And: Comcare
Respondent

CORRIGENDUM

TRIBUNAL:   Miss E A Shanahan, Member

DATE:            28 July 2016

PLACE:         Melbourne

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:

1. In paragraph 10 replace the words Table 9.1(a) or 9.1(b) with Table 9.10.1(a) or 9.10.1(b).

.....[sgd]....................................................

Member          

Pangratis and Comcare (Compensation) [2016] AATA 524 (25 July 2016)

Division	GENERAL DIVISION
File Number	2015/4320
Re	Helen Pangratis
APPLICANT
And	Comcare
RESPONDENT

interlocutory Decision

Tribunal	Miss E A Shanahan, Member
Date	25 July 2016
Place	Melbourne

Table 9.14 of the Guide to Assessment of the Degree of Permanent Impairment Edition 2.1 is not to be used to assess the Applicant’s degree of permanent impairment.  The appropriate Table or whether in the alternative the American Medical Association Tables for Permanent Impairment Edition No 5 is attracted can only be determined following the obtaining of further medical opinion. 

… ….[sgd]....................................  

Miss E A Shanahan, Member

COMPENSATION – Tables - Comcare Guide to Assessment of the Degree of Permanent Impairment Edition 2.1 – AMA Tables for Permanent Impairment Edition No 5 – Comcare Table 9.14 not appropriate.

REASONS FOR INTERLOCUTORY DECISION

Miss E A Shanahan, Member

25 July 2016

1. The parties requested an interlocutory hearing in order to clarify which if any of the Impairment Rating Tables in the Guide to Assessment of the Degree of Permanent Impairment Edition 2.1 (the Comcare Guide) was attracted by Ms Pangratis’s accepted injury of right lateral epicondylitis. 

2. The Respondent accepted that this was the correct diagnosis and for the purposes of the interlocutory hearing and decision it was to be assumed that the impairment is permanent until the substantive issue comes to final hearing. 

3. The Comcare Guide in relation to the upper extremity directs the assessor to Tables 9.10(a) and 9.10(b).  The Comcare Guide provides for the alternative use of Table 9.14 when one or more of Tables 9.9 (relating to the wrist), 9.10 (relating to the elbow) or 9.11 (relating to the shoulder) cannot be used and there is radiological evidence of joint instability, arthritis or arthroplasty.  Thus Table 9.14 can only be used in the presence of joint instability, arthritis or had the applicant having had an arthroplasty.

4. In Ms Pangratis’s case the conditions relating to joint instability, arthritis or arthroplasty do not exist.  The only objective evidence currently before the Tribunal is of the pathology relating to the lateral epicondyle and the origin of the common extensor tendon of the forearm which are external to the actual joint articulation.

5. The uncertainty regarding the appropriate Tables seems to have arisen from the expert opinion provided by Professor Stephen Davis, a neurologist, who has assessed Ms Pangratis as having a 10 per cent whole person impairment (WPI) relating to her dominant right upper limb based on Table 9.14. Dr Reiter, a consultant rheumatologist, had provided a report at Comcare’s request in which she assessed Ms Pangratis’s WPI at 5 per cent using Table 9.14. On this basis Comcare had rejected the claim lodged under s 24 of Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).

6. As part of the review process following rejection of the claim, Dr Reiter was asked to reconsider her assessment.  She decided 9.14 was not the appropriate Table and proceeded to make an assessment using the American Medical Association Tables for Permanent Impairment Edition No 5 (AMA 5) which led to the conclusion that Ms Pangratis did not have a permanent impairment.  Based purely on her clinical judgement Dr Reiter reaffirmed her original rating of a WPI of 5 per cent.

7. In his detailed report Professor Davis stated there was no evidence of a neurological defect.  Professor Davis did, for what the Tribunal sees as being the sake of completeness, recommend that a right ulnar nerve lesion be excluded by performing nerve conduction studies.  These have not been performed.  Professor Davis did qualify his opinion on the basis that he was not expert in the assessment of the elbow joint. 

8. At the interlocutory hearing Ms Pangratis was represented by Mr Paul Czarnota and Comcare was represented by Mr Ray Ternes, both of counsel.

9. It was agreed by all, including the Tribunal, that Table 9.14 cannot be used to assess Ms Pangratis’s degree of permanent impairment based on the objective medical data currently before the Tribunal.  The appropriate Table cannot be determined until any ulnar nerve lesion is excluded by nerve conduction studies.  It is noted that Dr Reiter had reported that Ms Pangratis had a full range of movement of her right elbow whereas Professor Davis and the reporting orthopaedic surgeon both stated that there was a diminished range of movement, albeit possibly pain related.  Such pain related limitation of movement is specifically excluded from assessment using Table 9.14.  Table 9.14 assesses WPI rating in terms of digital dexterity and is clearly inappropriate given all the objective findings relating to Ms Pangratis.

10. Ms Pangratis will undergo nerve conduction studies to objectively clarify her impairment following which a decision can be made in accordance with Table 9.1(a) or 9.1(b) or if indicated recourse to AMA 5 may need to be considered. 

I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

................[sgd].......................................

Dated 25 July 2016

Date of hearing	5 July 2016
Counsel for the Applicant	Paul Czarnota
Solicitors for the Applicant	Shine Lawyers
Counsel for the Respondent	Ray Ternes
Advocate for the Respondent	Andrew Vas
Solicitors for the Respondent	Comcare