Skilled Group Ltd v Fishpool
[2009] TASSC 102
•18 November 2009
[2009] TASSC 102
COURT: SUPREME COURT OF TASMANIA
CITATION: Skilled Group Ltd v Fishpool [2009] TASSC 102
PARTIES: SKILLED GROUP LTD
v
FISHPOOL, Damien Scott
FILE NO/S: 437/2009
JUDGMENT
APPEALED FROM: F v Skilled Group Ltd [2009] TASWRCT 9
DELIVERED ON: 18 November 2009
DELIVERED AT: Hobart
HEARING DATE: 11 August 2009
JUDGMENT OF: Crawford CJ
CATCHWORDS:
Workers' Compensation – Proceedings to obtain compensation – Determination of claims – Appeals, judicial review and stated cases – Question of law – Generally.
Workers Rehabilitation and Compensation Act 1988 (Tas), s63(1).
Azzopardi v Tasman UBE Industries Ltd (1985) 4 NSWLR 139; Hanlon v McKay Investments Pty Ltd (2001) 10 Tas R 247, followed.
Aust Dig Workers' Compensation [340]
Workers' Compensation – Assessment and amount of compensation – Amount of compensation during incapacity – Lump sum payments – Specific injuries – Limb injuries – Injury to the navicular cuneiform joint complicated by degeneration of that joint – No specific category under the diagnosis based guidelines to estimate the worker's impairment – Whether gait derangement an appropriate method for assessment of whole body impairment.
Aust Dig Workers' Compensation [364]
REPRESENTATION:
Counsel:
Appellant: K E Read
Respondent: R M Grueber
Solicitors:
Appellant: Dobson Mitchell & Allport
Respondent: Ogilvie Jennings
Judgment Number: [2009] TASSC 102
Number of paragraphs: 39
Serial No 102/2009
File No 437/2009
SKILLED GROUP LIMITED v DAMIEN SCOTT FISHPOOL
REASONS FOR JUDGMENT CRAWFORD CJ
18 November 2009
The respondent, a worker, filed two references with the Workers Rehabilitation and Compensation Tribunal under the Workers Rehabilitation and Compensation Act 1988, ss71 and 138AB respectively. The Commissioner who heard the references was required to determine whether the worker had a permanent impairment caused by an injury to his right foot arising out of and in the course of his employment by the appellant, his employer, and if so, the degree of that impairment.
The Commissioner found that there was such an impairment and assessed it as a whole person impairment of 40 per cent.
The employer appealed, claiming that errors in law occurred in the Commissioner's assessment of the impairment. The right to appeal is limited by s63(1) to one "in point of law". I have concluded that no errors of law occurred and that the appeal should be dismissed.
The legislative scheme for assessment of impairments
Provision is made by s71(1) for the payment of compensation to a worker who suffers permanent impairment assessed at a percentage of the whole person of not less than 5 per cent. By virtue of s72(1)(a), an assessment of a degree of impairment is to be undertaken by a medical assessor who, by definition, is a medical practitioner accredited by the WorkCover Tasmania Board for the purpose of making such assessments. An assessment is to be in accordance with any relevant guidelines issued by the Board.
Guidelines were issued by the Board ("Guidelines") pursuant to s72(1)(a). They use the American Medical Association Guides to the Evaluation of Permanent Impairment, 4th ed, 1995 ("AMA Guides") as their basis, although changes have been made to align the AMA Guides with Australian clinical practice and to better suit them to the purposes of the Act. Before referring to the contents of the Guidelines and AMA Guides, I will refer to some of the facts and evidence in this case.
The injury and the impairment
On 6 April 2005, the worker slipped and fell at work, injuring his right foot. As a consequence he was unable to bear weight on the foot without suffering considerable pain. Eventually, a sports physician diagnosed an injury to the navicular cuneiform joint of the foot.
The worker was referred to an orthopaedic surgeon who operated to fuse the injured joint. In the course of the operation, the surgeon identified a bipartite medial cuneiform and elected to fuse that joint, rather than perform the operation originally planned. It was hoped that the procedure would relieve the worker of his foot pain. However, it did not. In fact, he experienced an increase in the level of his pain. The surgeon carried out a second operation to fuse the navicular cuneiform joint. However, the fusion was unsuccessful. A third operation was carried out, over a year following the first two operations, when a further attempt was made to fuse the navicular cuneiform joint. A CT scan indicated that the operation was successful, the report stating that "bony union is complete" at the site of the arthrodesis.
However, the worker's evidence, which was accepted by the Commissioner, was that there was no abatement of his pain. He described it as constant and widespread on the inner side and along the top of his foot. He could not bear weight on the foot without excruciating pain. He could not tolerate ordinary shoes. Since the first operation he had been dependent on two crutches whenever outside his home. When inside he used one crutch and relied on furniture and walls for support and to help him manoeuvre. He could not cope with only one crutch when outside, because it put too much stress on one shoulder.
When being cross-examined by the employer's counsel, the worker agreed that as a result of the fusion he was left with a stiffened joint in his mid-foot, a surgical scar and pain. He was asked: "So as you understand it, at least, the entirety of your problem relates to pain?" He answered: "Yes." As will be seen, the employer relies on that answer in support of its case.
The worker was examined for a medico-legal report by a consultant occupational physician, Dr Sharman, who was the only other witness to give evidence before the Commissioner. He was an accredited medical assessor under the Act. He found some wasting of the right thigh with a one centimetre reduction in circumference compared with the left thigh. The right calf was markedly wasted with a maximal circumference of 29 centimetres, compared to 32.5 centimetres on the left. There was a surgical scar over the mid-foot with an area of hypersensitivity surrounding it and extending over the sole of the foot. There was marked allodynia in the same area.[1] Dr Sharman also noted a mild restriction in the range of right ankle movements. Dr Sharman referred to some loss of dorsi flexion, without stating what the loss was, and found there was plantar flexion to 45 degrees, compared to 60 degrees on the left. There was a restriction in the range of movement of the hindfoot with a moderate restriction in the range of inversion. Dr Sharman diagnosed the worker to be suffering from an injury to the navicular cuneiform joint complicated by degeneration of that joint and the development of a chronic pain syndrome.
[1] According to Merriam-Webster Online Medical Dictionary allodynia is "pain resulting from a stimulus (as a light touch of the skin) which would not normally provoke pain".
Dr Sharman's assessment of the worker's impairment was accepted by the Commissioner. It was based on the AMA Guides. In the reasons for his decision, the Commissioner quoted the following passage from one of Dr Sharman's reports as representing his views:
"Question 4 – Your opinion as to whether Mr Fishpool has an assessable whole person impairment and if so, the extent of that impairment.
Mr Fishpool is likely to be left with significant whole person impairment when assessed in accordance with Tasmanian Legislation. There are a number of possible methods for the assessment of lower extremity impairment which may apply to Mr Fishpool.
Mr Fishpool could potentially be assessed under the following sections of the AMA 4th Ed Guides 3.2 gait derangement, 3.2 unilateral muscle atrophy, 3.2e range of motion, 3.2 arthritis or 3.21 causalgia and reflex sympathetic dystrophy. There is no specific category under the diagnosis based estimates to estimate his impairment.
If Mr Fishpool was assessed under the gait derangement tables (table 36 on page 76 AMA (4)), I would assess him at 40% whole person impairment. He meets the criteria in the moderate severity section of the table “requires routine use of 2 canes or 2 crutches”, which is rated as a 40% whole person impairment.
If Mr Fishpool was assessed under the unilateral muscle atrophy section (table 3 on page 77 AMA(4)), I would assess him as having a mild impairment from the thigh muscle atrophy and a severe impairment due to calf muscle atrophy. This equates to 1% whole person impairment due to thigh muscle atrophy and 5% whole person impairment due to calf muscle atrophy.
If Mr Fishpool was assessed under the range of motion section, he would rate a mild impairment of ankle motion at table 42 and a moderate impairment of hindfoot range of motion at table 43. This is 3% whole person impairment for ankle impairment and 2% whole person impairment for hindfoot impairment.
If Mr Fishpool was assessed under the section for causalgia and reflex sympathetic dystrophy, the same ratings that apply for loss of range of motion would apply. In the case of a complex regional pain syndrome type 1 (reflex sympathetic dystrophy) where there is no peripheral nerve lesion, deficits of sensory or motor function cannot be taken into account. The total impairment for restricted range of motion would be 5% whole person impairment.
The Tasmanian WorkCover Guides provide guidance on the use of gait derangement tables as follows. If gait derangement is to be used as the method of assessing impairment for the lower extremity, it cannot be combined with any other evaluation in the lower extremity section of the AMA 4th Ed Guides and should be rarely used. Any walking aid utilised must be permanent and not temporary. Assessment of gait derangement should be used as a method of last resort. The more specific method for the particular disorder should be used in preference wherever possible.
The Tasmanian WorkCover Guides state that impairments due to muscle atrophy and range of motion cannot be combined. If the assessment was conducted purely on the basis of muscle atrophy then a total of a 6% whole person impairment would apply. A range of motion assessment would result in a 5% whole person impairment. If the impairment ratings for muscle atrophy and range of movement where combined, contrary to the Guides, this would result in an 11% whole person impairment.
As Mr Fishpool has a significant lower limb impairment, I think his case is one of the unusual cases where the gait derangement tables should be used. The disorder of Mr Fishpool's gait, as a result of his painful condition, is the major feature of his impairment. I do not believe there is any specific method for the particular disorder that Mr Fishpool suffers that adequately assesses his impairment. The arthritis section of AMA(4) has no provision for assessing the navicular cuneiform joint. The range of movement tables only give impairment ratings for restriction of the ankle and the subtalar joint, which are not the primary joints affected in Mr Fishpool's injury. Although Mr Fishpool has a regional pain syndrome, he does not have all the features of a complex regional pain syndrome and, in any case, he has additional problems related to the specific condition of degeneration of the navicular cuneiform joint which would not be taken into an account by an assessment under the AMA(4) section for assessing causalgia and reflex sympathetic dystrophy.
My considered opinion therefore is that Mr Fishpool has a 40% whole person impairment when assessed in accordance with the Tasmanian WorkCover Guides and the AMA 4th Edition Guides. This is on the basis of the effect of his injury on his gait. Even though this is the impairment that would apply for total loss of a lower limb, I believe it is the correct interpretation of the gait derangement tables. For practical purposes, Mr Fishpool does not have any useful function of his right leg."
Dr Sharman gave evidence that limited the effect of what he had said concerning the possible applications of the AMA Guides.
He said that the muscle atrophy was a secondary effect from disuse of the leg. Although it was a possible basis for assessing impairment, he thought that the worker's principal problem was in mobilising his leg and that gait derangement was the most appropriate and most specific method for assessment.
Concerning possible assessment under the range of motion section, Dr Sharman said that there is not a lot of movement at a navicular cuneiform joint to make an assessment of range of motion practicable and in any event, there is no table in the AMA Guides range of motion section for that joint, which made it very difficult to use that section. There were such tables for the ankle and hindfoot joints, but he "didn't think it was relevant to use the range of motion of a joint that wasn't primarily injured because it's not a very specific method to use another joint to estimate impairment [in a joint] using the range of motion tables."
Dr Sharman said that he eliminated the use of the section for causalgia and reflex sympathetic dystrophy because although the worker had chronic pain, it did not fit within the strict definition of reflex sympathetic dystrophy.
He said that he did not think the arthritis section in the AMA Guides was applicable either. He explained that although there was arthritis in the navicular cuneiform joint, the section spoke of reduction in joint space, determined radiologically, and there was no figure given for the joint in question, so he did not think it was possible to perform a rating under the section.
Dr Sharman concluded that the use of the gait derangement section was the method of last resort that he should adopt because there was no other method that was more specific.
Was there an error in point of law in failing to find that the impairment was solely attributable to pain?
The assessment of Dr Sharman that was accepted by the Commissioner was based on the worker's gait derangement. Section 3.2b of the AMA Guides provided for the assessment of a whole person impairment based on gait derangement. Dr Sharman and the Commissioner applied the provision in the section that there is a whole person impairment of 40 per cent if a person has a moderately severe gait derangement (requiring routine use of two canes or two crutches). Other percentages were prescribed for other circumstances, for example, 15 per cent for a mild impairment (requiring routine use of a short leg brace) and 50 per cent for a severe impairment (requiring routine use of two canes or two crutches and a short leg brace). However, section 3.2b expressly provided that it "does not apply to abnormalities based only on subjective factors, such as pain or sudden giving-way, as with, for example, a patient with low-back discomfort who chooses to use a cane to ease walking".
It was submitted to the Commissioner that the worker's impairment was solely attributable to pain, and that gait derangement should not have been used as a means of assessing the impairment because section 3.2b expressly prohibited its use in that circumstance. The Commissioner rejected the submission.
Five grounds of the appeal relate to this issue. Ground 2 asserts that the Commissioner erred in law when he determined that the worker's abnormalities were not based only on subjective factors. Ground 3 asserts that the Commissioner erred in law by failing to accept the worker's evidence that the problem with his right foot was entirely related to pain, or by failing to give reasons why the worker's abnormalities were not based only on pain. Ground 4 asserts that the Commissioner erred in law by failing to give reasons for his determination that the wasting of the worker's right thigh and calf, and mild restriction in the range of the worker's ankle and hindfoot movement were objective factors contributing to the worker's presentation rather than conditions existing as a consequence of pain, being a subjective factor. Ground 5 asserts that the Commissioner erred in law by failing to determine or adequately determine whether there were abnormalities other than pain that contributed to the gait derangement. Ground 6 asserts that the Commissioner erred in law by determining that there were abnormalities which contributed to the gait derangement other than pain, when there was no evidence of such contribution.
The Commissioner accepted, as required by section 3.2b, that the gait derangement provisions did not apply to abnormalities based only on subjective factors, such as pain. He also accepted that pain was a significant factor impacting on the worker's condition. However, he said that there were other factors as well. He referred to the evidence of Dr Sharman as showing that there was wasting of the right thigh and calf, and restriction in the range of the ankle and hindfoot movement. The Commissioner said that they were objective factors which contributed to the worker's presentation and their existence satisfied the Commissioner that pain, being a subjective factor, was not the only factor impacting upon the worker's condition, so that section 3.2b did not preclude him from considering gait derangement as an available measure for the assessment of the worker's impairment.
The Commissioner's finding that the worker's abnormalities were not based only on pain was a finding of fact, and not a finding of law. That presents difficulties for the employer because it is only entitled to appeal in point of law.
As I understood it, counsel for the employer submitted to this Court that there was no evidence that the injury to the navicular cuneiform joint, its degeneration or its consequent fusion, caused the loss of range of motion in the ankle and hindfoot. He submitted that there was no evidence that the loss of movement in those two joints, and any consequent impairment, was caused by anything other than pain. It is undoubted that a cause of everything was the injury to the navicular cuneiform joint. I also comment that there is no evidence that pain alone was the cause of the loss of movement in the ankle and the hindfoot; I understood counsel for the employer to concede that, by accepting that there was no evidence one way or the other.
Counsel for the employer also submitted that it was clear from the evidence of Dr Sharman that the cause of the muscle atrophy was disuse of the leg. That in turn, it was submitted, was caused only by pain, so that pain alone was the cause of the muscle atrophy. Counsel for the employer accepted that the evidence led to a finding that the worker's abnormalities resulted from pain by way of some form of reaction in his sympathetic nervous system due to the injury to the navicular cuneiform joint.
Ground 2 of the appeal does not raise an error in point of law that is required by s63(1) for an appeal. The question whether the Commissioner erred when he determined that the worker's abnormalities were not based on only subjective factors, such as pain, raises only a question of fact. See Azzopardi v Tasman UBE Industries Ltd (1985) 4 NSWLR 139 at 155 – 156; Hanlon v McKay Investments Pty Ltd (2001) 10 Tas R 247.
The first part of ground 3 does not raise an error in point of law either. Because of the requirement of s63(1), a decision of the Commissioner not to accept a piece of evidence is conclusive, Azzopardi at 155. Further, the law did not require the Commissioner to apply the worker's affirmative answer to the proposition that it was his understanding that the entirety of his problem related to pain by finding that the abnormalities were solely attributable to pain. In any event, there was evidence, much of it objective, to support the contrary, such as the evidence of injury to the navicular cuneiform joint, the degeneration of that joint, the fusion of that joint, the restriction in the range of movement of the ankle and hindfoot and perhaps also, the muscle atrophy.
The second part of ground 3 has not been established. The Commissioner did give reasons for his finding of fact that the worker's abnormalities were not based only on pain.
I am not persuaded that the Commissioner erred in the way asserted by ground 4 either. His finding that the muscle atrophy and restriction in the range of movement of the ankle and the hindfoot were objective factors contributing to the worker's condition amounted to reasons. Whether the reasoning was correct is an altogether different question and one of fact, not law.
As to ground 5, the postulated question which it is claimed the Commissioner failed to determine, was not a question the Commissioner was required to determine. The issue was not whether there were abnormalities, other than pain, that contributed to gait derangement. The question that was raised by the employer concerned the rule in section 3.2b that it "does not apply to abnormalities based only on subjective factors, such as pain ...". The Commissioner resolved that issue.
Ground 6 does raise a point in law, for it asserts that there was no evidence to support a finding of a particular fact. See Azzopardi at 155; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355. However, there was evidence that the worker's abnormalities were based on more than subjective factors such as pain. As I stated earlier, there was evidence of injury to the navicular cuneiform joint, degeneration of the joint, fusion of the joint, muscle atrophy and restriction in movement of the ankle and hindfoot. The use the Commissioner made of that evidence might give rise to questions of fact, but not of law.
Should the whole person impairment have been assessed by reference to muscle atrophy or range of motion?
Ground 1 of the appeal asserts that the Commissioner erred in law in using gait derangement to assess the worker's whole person impairment, when it was possible to use more specific methods of assessment based on either muscle atrophy or range of motion.[2]
[2] The appellant's case is that the assessment should have been based on muscle atrophy because it was the most fitting method.
In the passage I cited from his report, it was Dr Sharman's assessment that the worker had 1 per cent whole person impairment due to thigh muscle atrophy, and 5 per cent whole person impairment due to calf muscle atrophy. He also assessed 3 per cent whole person impairment due to restriction in the range of motion in the ankle, and 2 per cent whole person impairment due to restriction in the range of motion in the hindfoot.
The Guidelines provide in Chapter 3, par3.2, Table 3.1, that impairments due to muscle atrophy and range of motion may not be combined with each other and that an impairment due to gait derangement may not be combined with an impairment due to either muscle atrophy or range of motion.
More important in the context of this case, is the provision in par3.8 that "gait derangement ... should rarely be used" and the provision of par3.11 that: "Assessment of gait derangement should be used as the method of last resort. Methods most fitting the nature of the disorder should always be used in preference."
Both Dr Sharman and the Commissioner demonstrated that they were aware of those provisions and that they needed to resolve the question whether those provisions allowed or prevented an assessment of the impairment based on gait derangement. The answer depended on the facts of the case. The ultimate questions, concerning the nature and degree of impairment, were also questions of fact. The Commissioner committed no error of law in the course of determining any of those questions.
For example, the Commissioner discussed many of the physical problems faced by the worker and found, as a fact, that for practical purposes the worker did not have any useful function in his right leg. He found, as a fact, that the worker had a permanent need to use two crutches. He found, as a fact, in the form of agreement with the views of Dr Sharman, that in the factual circumstances of the case, the measure of the impairment by reference only to muscle atrophy in the calf and thigh, or range of motion in the ankle and hindfoot, did not adequately assess the degree of the worker's impairment.
The Commissioner concluded that this was a rare case[3] where gait derangement should be used. It may be inferred that he concluded that gait derangement was the method most fitting for the assessment of impairment in this case. I express myself in that way for he did not use those express words. What he did say was that his view was "that I should accept Dr Sharman's opinion that gait derangement should be the measure by which the worker's impairment is assessed." No error in law in reaching that conclusion has been established.
[3] The expression he used was "one of those 'unusual cases'".
I conclude by noting that the terms of ground 1 assert that an error in law occurred because it was wrong to assess in accordance with gait derangement if it was possible to use a more specific method, such as muscle atrophy or range of motion. However, in the course of his submissions to the Court, counsel for the appellant conceded that the question for the Commissioner was not whether a particular method was the most specific one but whether it was one "most fitting the nature of the disorder" in accordance with the Guidelines par3.11. I have determined the ground as if it was expressed in that way.
Outcome of the appeal
For these reasons, the appeal will be dismissed.
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