Powers and NDC Ltd
[2005] AATA 270
•31 March 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 270
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/355
GENERAL ADMINISTRATIVE DIVISION )
Re STEPHEN POWERS Applicant
And
NDC LTD
Respondent
DECISION
Tribunal Dr EK Christie, Member Date31 March 2005
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and in substitution therefor decides that Mr Powers’ whole person impairment is 10%. The Tribunal remits the matter to the respondent with a Direction that the respondent now calculate the compensation entitlements for Mr Powers in respect of his permanent impairment.
..................[Sgd].......................
EK Christie
Member
CATCHWORDS
COMPENSATION – ‘Guide to the Assessment of the Degree of Permanent Impairment’ preparation pursuant to section 28 of the Safety, Rehabilitation and Compensation Act 1988 - construction of section of Guide ‘14. Combined Values Chart’ – Interpretation of Instruments: interpretation of uncertainty in statutory instrument – expert evidence
Safety, Rehabilitation and Compensation Act 1988 ss 4, 24, 28
Whitaker v Comcare [1998] FCA 1099
Comcare v Fiedler [2001] FCA 1810
Page v Telstra [2004] FCAFC 80
Comcare v Ticsay (1992) 38 FCR 181
Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336
Comcare v Mihajilovic [2000] FCA 285
Comcare v Roser [2002] FCA 243
Polivitte Ltd v Commercial Union Insurance Company Pty Ltd [1987] 1 Lloyds Rep 379REASONS FOR DECISION
31 March 2005 Dr EK Christie, Member 1. This is an application by Stephen Powers for a review of the decision made by the Independent Review Officer on behalf of NDC Ltd on 24 March 2003 that Mr Powers’ whole person impairment as a result of “the injury” on 21 August 2000 was less than 10%. Consequently, Mr Powers was not entitled to compensation in respect of permanent impairment.
2. The evidence before the Tribunal comprised the documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” Documents) [Exhibit 1] and the various exhibits lodged by the parties.
3. The applicant was represented at the hearing by Mr T Willis of Counsel instructed by Short, Flynn & Co. The respondent was represented by Mr C Clark of Counsel instructed by Sparke Helmore.
Issues before the Tribunal
4. The only issue for the Tribunal to decide was whether Mr Powers’ whole person impairment for multiple impairments arising from a single event or incident was 10% or more. This, in turn, was dependent on the interpretation and application of Table 14.1 (the “Combined Vales Charts”); the expert evidence indicates that individual impairment values did not occur at gradations of 5% or multiples of 5%.
Factual and Opinion Evidence
§ Evidence of Stephen Powers
5. On 21 August 2000, Mr Powers was carrying out his normal duties as a truck driver. He was a member of a plough crew laying fiberoptic cable on site. Mr Powers was using a length of steel pipe to loosen the chain binder on a light drum when the pipe became dislodged and flicked up, striking him on the right side of his lower jaw. He lost two teeth in the accident. As a result of the blow to his right jaw, he now suffers the following continuing disabilities:
(a) a bent smile;
(b)constant numbness extending from the top of and inside the lip around the jaw; and
(c)permanent scarring of the face.
§ Expert Evidence of Professor John de Burgh Norman, Maxillo Facial Surgeon
6. Professor de Burgh Norman gave the following opinion evidence in relation to the degree of permanent impairment sustained by Mr Powers from multiple injuries arising from the one event:
(a) Damage to Cranial (Trigeminal Sensory “V”) Nerve
7. Applying Table 12.1, the degree of permanent impairment was assessed at 3%. The rationale for this was that 3 branches of the trigeminal nerve are found on the side of the face. The Table gave a global account of 10% for damage to the “whole nerve” [all three branches] on one side. However, in Mr Powers’ case, only one branch (or 80% of that branch] had gone. “Realistically”, Professor de Burgh Norman stated an impairment value of 3% could be given under the Table.
(b) Damage to Cranial (Facial “VII”) Nerve
8. Table 12.1 gave an impairment rating of 15% for damage to this nerve. Professor de Burgh Norman stated that this value “means the total nerve would be paralysed. Such damage would result in a terrible, terrible deformity”. This was not the case for Mr Powers as he had a mild dysfunction. Applying the ”House-Brackmann Scale” – a scale used worldwide, he assessed Mr Powers’ permanent impairment under the Table as a mild dysfunction at 3% i.e. by using the Scale’s 5 equal intervals for categorising impairment.
(c) Facial Scarring
9. Professor de Burgh Norman assessed this injury under Table 4.2 and concluded that a permanent impairment of 5% was “appropriate” because of the following reasons:
(a)the impairment rating was not merely a matter of aesthetic appearance e.g. by measuring the scar, feeling the scar, looking at the scar under room light and in the sunshine;
(b)the impairment rating also had to be assessed in relation to function. He referred to the preface to Table 4.2 which states the “functional components of the face must be evaluated” when evaluating impairment under the Table. In Mr Powers’ case he had in addition to a scar, a numbness of the lip and partial paralysis of the lower lip; and
(c)the cumulative effect of having three effects or impacts involving his lower lip was the basis of his assessment.
(d) Temporomandibular Joint Dysfunction
10. An assessment of 1% whole person impairment was given under the American Medical Association 5th Edition (“AMA 5”) as there was no category in the Comcare Guide that dealt with dysfunction. He acknowledged that AMA 5, whilst not perfect, recognised that jaw joints in the head were important for the patient affected. Moreover, he stated that there were no “perfect tables”, in this regard, anywhere in the world.
11. Under cross-examination, Professor de Burgh Norman acknowledged that:
(a)the terminology in the current edition of the AMA Guide may not have made any reference to the term “derangement or dysfunction of the temporomandibular joint”. However, he said that the terminology used in AMA 5 referred to the relationship of restriction of mastication arising from joint dysfunction.
(b)he did not double-count numbness arising from damage to the trigeminal nerve and partial paralysis of the lower lip. These assessments were considered quite independently and separately – and in relation to the appropriate Table; and
(c)with respect to the temporomandibular joint, the complaint of Mr Powers with respect to pain in the left jaw joint warranted further investigation (e.g. by an MRI of the joint) by another health professional.
Facts and Contentions of the Parties
12. Mr Willis submitted that the essential starting point was for the Tribunal to accept the delegate’s findings that Mr Powers had a 5% whole person impairment with respect to the cranial damage to the nerves i.e. based on the opinion evidence of Dr Moloney.
13. Accordingly, Mr Willis contended that whilst Professor de Burgh Norman had assessed 3% whole person impairment with respect to the trigeminal nerve and 3% impairment with respect to the facial nerve, these assessments could not be disregarded simply because they did not occur in 5% gradations. It was his contention that Mr Powers had, under Comcare Table 12.1 at least 5% whole person impairment with respect to damage done to his cranial nerves.
14. Furthermore, under Comcare Table 4.2, Professor de Burgh Norman had taken into account all relevant considerations for assessment and had concluded that Mr Powers has a 5% whole person impairment.
15. With respect to temporomandibular dysfunction, Mr Willis contended that Professor de Burgh Norman’s opinion was that there was no appropriate Comcare Table and so reliance must be placed on AMA 5. The respondent had led no evidence to the contrary to rebut this.
16. Mr Willis’ concluding submission was that the cumulative effect of all three injuries were such that Mr Powers satisfied the 10% statutory threshold for whole person impairment.
17. Mr Clark referred to the Comcare Guide (at p.4) with respect to “Gradations of Impairment”. It was his submission that any approach that relied on applying values for impairment arising from Table 12 for nerve damage that were not in “gradations of 5% or multiples” – in Mr Powers’ case values of 3% - were flawed. Mr Clark acknowledged such an outcome to be “unfortunate” – but the Table simply did not support such an approach.
18. Furthermore, Mr Clark submitted that the approach taken by the applicant for assessment of cranial nerve damage viz “three plus three equals at least five”, was simply not permitted by Table 12; the two separate assessments for the cranial nerves could not be combined in this manner.
19. In respect of the temporomandibular joint, Mr Clark submitted that Professor de Burgh Norman’s evidence indicated the need for further investigation and treatment. Accordingly, this evidence raised uncertainty as to whether this specific impairment was permanent. Moreover, there was no medical evidence to indicate that the facial scarring was beyond any further medical treatment.
20. He concluded with the submission that the evidence before the Tribunal showed that Mr Powers did not satisfy the 10% whole person permanent impairment threshold.
Statutory Requirements and Legal Principles
(a) Statutory Requirements
21. Section 4 of the Safety and Rehabilitation Compensation Act 1988 [“the SRC Act”] gives the following definition of "impairment":
“‘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."
22. Insofar as presently relevant for this application for review, section 24 provides:
“(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.
…
(5)Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) the degree of permanent impairment shall be expressed as a percentage.
(7)Subject to section 25, where Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section.”
23. The “Guide to the Assessment of the Degree of Permanent Impairment” (“the Guide”) approved under section 28 of the SRC Act contains “Principles of Assessment” together with tables setting out levels or degrees of impairment. For present purposes, the following appears in the “Principles of Assessment” (pp. 4 -6):
"28(1)Comcare may, from time to time, prepare a written document, to be called the 'Guide to the Assessment of the Degree of Permanent Impairment', setting out:
(a)criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury shall be determined;
…
(c)methods by which the degree of permanent impairment … as determined under those criteria, shall be expressed as a percentage.
…
(4)Where Comcare, … or the Administrative Appeals Tribunal is required to assess or re-assess, or review the assessment or re-assessment of, the degree of permanent impairment of an employee resulting from an injury, … the provisions of the approved guide are binding on Comcare, … or the Administrative Appeals Tribunal, as the case may be, in the carrying out of that assessment, re-assessment or review, and the assessment, re-assessment or review shall be made under the relevant provisions of the approved Guide."
24. The “Principles of Assessment” contained in the Guide include the following:
“The Impairment Tables
Part A of the Guide is based on the concept of 'whole person impairment' which is drawn from the American Medical Association's Guides.
Evaluation of a whole person impairment is a medical appraisal of the nature and extent of the effect of an injury or disease on a person's functional capacity and activities of daily living.
As with the American Medical Association's Guides, Part A of this guide is structured by assembling detailed descriptions of impairments into groups according to body system and expressing the extent of each impairment as a percentage value of the functional capacity of a normal health person. Thus a percentage value can be assigned to an employee's impairment by reference to the relevant description in this guide.
Gradation of Impairment
Each table contains impairment values at gradations of 5% or multiples of five percent. Where it is not clear which of two impairment values is more appropriate, Comcare has the discretion to determine which value properly reflects the degree of impairment.
There is no discretion to choose an impairment value not specified in the Guide. For example, where 10% and 20% are specified values there is no discretion to determine impairment as 15%.
Combined Impairments
It is important to realise that impairment is system or function based and that a single injury or disease may give rise to multiple loss of function. When more than one table applies to a single injury separate scores should be allocated to each functional impairment. Where two or more injuries give rise to the same impairment a single rating only should be given.
Double Assessment
The possibility of double assessment for a single loss of function must be guarded against. For example, it would be inappropriate to assess a lower limb amputation by reference to both the amputation table (9.3) and the lower extremity table (9.2).
Where an employee suffers from more than one impairment the values are not added but are combined using the Combined Values Table. The purpose of this table is to give the total effect of all impairments, according to a formula, as a percentage value of the employee's whole bodily system or function (see Table 14)."
Inapplicability of the Guide
In the unlikely event that an employees’ impairment is of a kind that cannot be assessed in accordance with the provisions of the Guide, Comcare may direct that assessment be made under the provisions of the current American Medical Association’s Guides.”
25. For this application for review, the relevant Tables in the Guide for assigning percentage levels for "Percentage Whole Person Impairment" are:
o Table 4.2 Facial Disfigurement
o Table 12.1 Neurological Function: Cranial Nerves
o AMA 5
26. The Minister for Industrial Relations’ “Explanatory Statement” to the Comcare Guide states:
“Under the Guide a zero rating would represent normal health or well being while a 100 per cent rating would, in effect, represent death. The loss of a middle finger is rated at 10 per cent, loss of half normal range of knee movement 30 per cent, and blindness 85 per cent.
Under the whole person approach to impairment assessment, permanent impairment of any part of the body, bodily function or system will qualify for payment providing the impairment rating is at least 10 per cent. (Injuries to fingers and toes are exempted from the 10 per cent qualifying requirement).” [Tribunal emphasis]
(b) Legal Principles
27. Judicial attention has been given to issues associated with uncertainty in applying the Guide in compensation cases heard by our courts. For example, in Whitaker v Comcare [1998] FCA 1099, the Full Federal Court stated [at p.9] :
“Comcare is empowered by s 28(2) to act quickly, if only it chooses, to make any changes to the Guide that experience in its use identifies are necessary. For reasons of its own, however, Comcare appears to prefer constant litigation to that clarification of the Guide for which there has long been a manifest need.”
28. Later, in Comcare vFiedler [2001] FCA 1810 the Full Federal Court stated [at para. 26]:
“The Guide remains in the form in which it was initially published in 1989. It is a confused, poorly drafted document. The failure of the draftsman of the Guide to recognise the importance of clarity in a document which forms an important part of the scheme of employee compensation established by the Act and the longstanding failure of Comcare to remedy numerous deficiencies in the Guide has been the subject of repeated criticism by this Court: see Whittaker, particularly at 538. We agree with what the Tribunal said to the effect "that the Guide lacks clarity and serves to obfuscate rather than illuminate that degree of impairment which it is intended to compensate" …”
29. In Page v Telstra [2004] FCAFC 80 the Full Federal Court stated (at para. 48, p. 18):
“We have examined the explanatory memorandum relating to the bills by which the provisions in s 24(8)[1] were introduced but we have not found any of them of any assistance in relation to this issue of statutory interpretation.”
and later (at para. 51, p. 18):
“Further, there are other provisions in the Guide that set an impairment of 5 percent or less for impairments constituted by the loss of the use of a finger. One example is in Table 9.1 which stipulates a 5 percent impairment level for ankylosis of any joint of fingers 4 and/or 5. There is no reason why such an impairment would not fall within s 24(8)(a). Then, there are impairments that cannot be assessed in accordance with the provisions of the Guide. The Guide provides that in such a case the impairment may be assessed under the American Medical Association’s Guide. Impairments constituted by the partial loss of use of a finger may fall within that category.”
[1] Impairment caused by the loss of the sense of taste or the loss of the sense of smell.
30. Notwithstanding these critical observations made by the Federal Court in relation to the Guide, the following analysis of case law in Whitaker’s case [at p.13], reveals objective approaches, taken by the Court, for dealing with the construction of the Guide, in a manner consistent with the principles of statutory interpretation:
“The essential starting point is the following legal analysis in Whitaker’s case: It was said in Scott v Moses (1958) 75 WN(NSW) 101 at 102 that, whatever the difficulties of construction may be, a court is bound to give some meaning to a provision in a statute "and upon no proper principles could a court ever hold that an Act of the legislature was to be regarded as a nullity because of the uncertainty of the language used". Bennion, in Statutory Interpretation 3rd ed (1997) at 352, goes so far as to say that, when confronted with an obscure provision, "the judge is nevertheless compelled to find a meaning (which in some cases amounts to saying that the judge must virtually invent one)". The general rule is that the same approach is taken to the interpretation of a delegated statutory instrument as it is to interpreting the statute itself (although uncertainty of expression is a ground, not argued here, on which delegated legislation may be held invalid as beyond the statutory power that authorises its making. See King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184 at 195 - 196.).
The court can call in aid wide powers when it has to try to give effect to confused statutory language. If a court concludes that the literal meaning of a provision does not conform to the legislative purpose, the court can give effect to that purpose by addition to, omission from, or clarification of the particular provision: Saraswati v The Queen (1991) 172 CLR 1 at 22. There is no reason to doubt that the court has the same powers at its disposal when it is confronted with the task of giving effect to confused statutory language.
…However, if it is not possible for the Court to be confident of the intent of the author, it is not, we think, open to the Court to invent, under the guise of interpretation, its own version of how it thinks the text might read. That is, in the present context, it is not open to this Court to devise a text of its own in place of the garbled original that reflects how the Court may think Comcare could have performed the duty cast on it by s 28(1) of the Act. This is plainly so where the Court has to construe a Guide to the assessment of injury-caused impairment which deals with matters of some technical complexity, a complexity masked by the apparent simplicity of Section 9 of the Comcare Guide, but obvious, when regard is had to the corresponding provisions of the current DVA Guide and the AMA Guides.” [Emphasis added]
31. Furthermore, in Whitaker’s case [at p.14], the Full Federal Court provided an objective approach for resolving the issues of interpretation raised by the Guide. The Full Federal Court endorsed the approach of Olney J [in Comcare v Ticsay (1992) 38 FCR 181 at 188], wherein he said:
“The first principle established by the authorities is clearly stated by Hill J in Thiele v Commonwealth (1990) 22 FCR 342 at 346 when he said in relation to the precursor of the Act: `The present legislation is socially remedial legislation intended to benefit workers and should be given a construction which advances its purposes as such. Thus where two constructions are possible, that which is favourable to the worker should be preferred: Wilson v Wilson's Tile Works Pty Ltd (1960) 104 CLR 328 at 335 per Fulmar J’”.
32. Reference was also made to the dictum of Gibbs J (as he then was) in Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336 at 350: ‘[W]here two meanings are open ... it is proper to adopt that meaning that will avoid consequences that appear irrational and unjust.' Having regard to the definition of the term ‘impairment’, to the provisions of ss 14 and 24, and to the particular purpose of the Guide as provided in s 28(1), it seems that the legislative policy of the Act is to provide for the payment of compensation to an employee who has suffered an injury resulting in a permanent impairment. The Guide should be construed and applied in aid of the general statutory purpose, not as a means of limiting it.”
33. The Full Federal Court in Whitaker’scase then made the following points in relation to the analysis by Olney J In Ticsay’s case:
(i)the general principle of the SRC Act in so far as it makes provision for Commonwealth employee compensation, is that contained in subsection 24(1), viz, that compensation is payable where an employee suffers an injury that results in a permanent impairment;
(ii)The second point is that subsection 24(7) shows that it is only where Comcare determines, by applying the Guide, that the employee's degree of permanent impairment is less than 10% that the employee is disentitled to compensation in respect of the injury already determined to have resulted in permanent impairment. Only then will there be an exception to the general principle in subsection 24(1). The general legislative purpose or intent is that an employee who suffers injury causing more than minor permanent impairment is entitled to compensation; and
(iii)The third point is that it is only permissible for Comcare to turn to the Guide once it has reached the conclusion, after taking into account the matters listed in subsection 24(2) of the Act that the employee has suffered an injury which has resulted in a permanent impairment. The Guide then becomes relevant, but only in so far as it contains the criteria by reference to which Comcare must assess the degree of that employee's permanent impairment. The Guide, which has this limited role, should not be allowed to limit the general legislative purpose.
34. Table 14.1 (the Combined Values Table) provides the means for producing a composite percentage whole person impairment where separate percentage values have been calculated under the Tables for distinct impairments. That composite percentage does not result simply from the addition of the separate percentages. It is the figure derived from the use of Table 14.1 that would provide the operative percentage under subsection 24(3) of the SRC Act for the purpose of calculating the compensation payable to an employee suffering two impairments from an injury [Emphasis added]: see Comcare v Mihajilovic [2000] FCA 285 (at p. 6).
35. With respect to multiple impairments, in Comcare v Roser [2002] FCA 243, Spender J stated (at para. 42):
“In my judgment, s 24(1) of the Act provides for compensation for “an injury”. If that injury results in multiple impairments, the impairment to the whole person is to be arrived at. If there is more than one injury occasioned as a result of a single event or incident, then there are separate and discrete liabilities in respect of each injury. Thus, if a person were made blind and lost the use of the lower right arm as the result, say, of a grenade exploding, there are two separate injuries and person suffering them is entitled under the Act to compensation for each of them. The compensation for each injury is to be assessed by reference to the degree of impairment to the whole body that flows from each injury, and that degree of impairment may require consideration of the combined effect of separate impairments flowing from the same injury.”[Emphasis added]
Consideration of the Issues
36. The first issue for the Tribunal to consider is the weight to attach to Professor de Burgh Norman’s expert evidence. The Tribunal accepts the evidence of Professor de Burgh Norman and considers his expert opinion to provide independent assistance to the Tribunal by way of objective, unbiased opinion in relation to matters within his expertise: see Polivitte Ltd v Commercial Union Insurance Company Pty Ltd [1987] 1 Lloyds Rep 379 at 386.
37. The Tribunal has adopted the approach in Tiscay’s case, and later endorsed by the Full Federal Court in Whitaker’s case, and concludes that:
(a)Mr Powers suffers the following injuries arising from the single event or incident on 21 August 2000 that have resulted in permanent impairment: damage to the cranial (Trigeminal Sensory “V”) nerve; damage to the cranial (facial VII) nerve and facial disfigurement including effects in relation to function;
(b)in relation to the temporomandibular joint, the opinion evidence before the Tribunal cannot establish, at the civil standard of proof, that this specific impairment is permanent. That is, there remains a need for further investigation and rehabilitation treatment; and
(c)that, at this point, it is permissible for the Tribunal to turn to the Guide to assess the degree of Mr Powers’ permanent impairment.
38. Applying the “test” in Roser’s case, the Tribunal considers compensation for each of his three injuries by reference to the degree of impairment to the whole body that flows from each injury, recognising that the degree of impairment requires consideration of the combined effects of the three separate impairments.
39. The Tribunal has accepted Professor de Burgh Norman’s expert evidence and finds that Mr Powers has the following whole person impairments in relation to each specific injury:
(a) damage to cranial (Trigeminal, Sensory “V” – Table 12.1) nerve: 3%
(b) damage to cranial (Facial VII – Table 12.1 nerve): 3%
(c) facial disfigurement – Table 4.2: 5%
40. The Tribunal next considers the application of these three values to Table 14: “Combined Values Charts”. The Tribunal does so recognising the drafting problems with the Comcare Guide in terms of its clarity and certainty for the assessment of the degree of impairment: see Fiedler and Whitaker.
41. The Explanatory Memorandum provides little assistance in terms of the issue of interpretation of the Guide for the whole person impairment values assessed for Mr Powers wherein two impairment values are not at gradations of 5% or multiples of 5%.
42. However, the Tribunal considers that the reasoning of Finn J in Mihajilovic’s case – in relation to the use of Table 14 for the purpose of calculating compensation in circumstances of multiple impairments arising from an injury, is significant. Mihajilovic’s case refers to the use of Table 14.1 as providing the “operative percentage” for calculating the compensation payable.
43. The Tribunal concludes that the use of Table 14.1 for the assessment of multiple impairments i.e. the three separate injuries arising from a single event or incident suffered by Mr Powers (paragraph 38), results in a combined impairment value under this Table of 11%. That is, the combined impairment value of 11% is the “operative percentage”. Given that the combined impairment value, or operative percentage, of 11% exceeds the statutory threshold of 10% [i.e. as the Guide specifies impairment values in gradations of 10% and 20%] or is “at least 10%” (see Explanatory Statement), in Mr Powers’ case his multiple impairments as assessed under Table 14.1 become 10% for the purposes of entitlement to compensation under section 24 of the SRC Act.
44. Furthermore, the Tribunal concludes that the proposition that there is no discretion to choose an impairment value not specified in the Guide “in gradations of 5% or multiples” to calculate the “operative percentage” under Table 14.1, cannot be supported. That is, the proposition does not apply to the intervening or individual values for separate injuries as assessed under different Tables which are then used to calculate the “combined value” or “operative percentage” under Table 14.1.
45. Moreover, whilst the Comcare Guide states (at p.4) under “Gradations of Impairments: Each table contains impairment values at gradations of 5% or multiples of five percent…”, Table 14.1 can be distinguished from this statement. Table 14.1 specifies numeric values of 1-99% in unit values along both the “x-scale” and the “y-scale” [Tribunal emphasis]. There is no information provided in the use of this Table that indicates that only impairment values of 5% gradations (or multiples of 5%) should be used to determine the “operative percentage” under the “Combined Values Chart”.
46. The Tribunal makes the observation that this analysis and interpretation of Table 14.1 (the “Combined Values Chart”) of the Comcare Guide is consistent with the legal principles reviewed in Whitaker and Ticsay (see paragraphs 30 and 31). In addition, the Tribunal has construed the Guide and applied the Guide in aid of the general purpose of the SRC Act and not as a means of limiting it: see Public Transport Commission (NSW) case and Ticsay’s case.
47. For all of the above reasons the Tribunal sets aside the decision under review and in substitution therefor decides that Mr Powers’ whole person impairment is 10%. The Tribunal remits the matter to the respondent with a direction that the respondent now calculate the compensation entitlements for Mr Powers in respect of his permanent impairment.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member
Signed: Camille Banks
AssociateDate/s of Hearing 28 February 2005 [at Ballina]
Date of Decision 31 March 2005 [at Brisbane]
Counsel for the Applicant Mr T Willis
Solicitor for the Applicant Short Flynn & Co
Counsel for the Respondent Mr C Clark
Solicitor for the Respondent Sparke Helmore
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