Spradau and Comcare (Compensation)

Case [2020] AATA 2054

Spradau and Comcare (Compensation) [2020] AATA 2054 (1 July 2020)

Division:GENERAL DIVISION

File Number(s):     2018/6206          

Re:Neville Spradau

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Member W Frost

Date:1 July 2020

Place:Canberra

The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.

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

Member W Frost

Catchwords

WORKERS’ COMPENSATION – accepted injury of broken left wrist - whether the applicant suffers a degree of permanent impairment resulting from accepted injury – assessment of permanent impairment in accordance with Tables 9.9.1a, 9.9.1b and 9.14 of the approved Guide – applicant does not meet 10% whole person impairment threshold – applicant not entitled to compensation for permanent impairment and non-economic loss – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975

Legislative Instruments Act 2003

Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 24, 27, 28, 66

Cases

Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533

Avondale Motors (Parts) Pty Ltd v FCT (1971) 45 ALJR 280

Bryant v Military Rehabilitation and Compensation Commission (2008) FCA 1424

Canute v Comcare (2006) 226 CLR 535

Comcare v Broadhurst (2011) 192 FCR 497

Comcare v Tiscay (1992) 38 FCR 181

Comcare v Wuth [2018] 159 ALD 1

Drayton v Crossroads Motors Pty Ltd [1995] NSWSC 82

Guppy v Australian Postal Corporation (2013) FCA 489

Hocking and Australian Postal Corporation [2002] AATA 537

O’Keefe v Comcare [1998] FCA 603

Whiteman v Australian Postal Corporation 199 FCR 433

Whittaker v Comcare (1998) 86 FCR 532

Young and Comcare [2003] AATA 588

Secondary Materials

Comcare, Guide to the Assessment of Permanent Impairment (Edition 2.1, 2011)

REASONS FOR DECISION

Member W Frost

1 July 2020

INTRODUCTION

  1. The Applicant, Mr Neville Spradau, fell during his employment with the Australian Federal Police (AFP) in 1997, which, relevantly, resulted in a fractured left wrist. At the time, Comcare accepted Mr Spradau’s Claim for Rehabilitation and Compensation for this injury.    

  2. Twenty years later, in 2017, Mr Spradau made a claim for compensation for permanent impairment and non-economic loss as a result of that left wrist injury, pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). By way of determination and subsequent reconsideration, Comcare declined Mr Spradau’s claim for permanent impairment and non-economic loss. Mr Spradau applied to the Administrative Appeals Tribunal (Tribunal) for review of that decision.

  3. The Tribunal has considered all the documents in three bundles of documents filed in this proceeding on 26 November 2018, 20 February 2020 and 6 March 2020, pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act).[1] The Tribunal has also considered the following additional documents:

    (a)‘Applicant’s Statement of Facts, Issues and Contentions’ dated 24 April 2019;

    (b)‘Respondent’s Statement of Facts, Issues and Contentions’ dated 16 May 2019;

    (c)‘Schedule of Concurrent Evidence’ containing the answers of the two expert witnesses in this proceeding to the parties’ agreed questions for concurrent evidence;[2]

    (d)‘Comcare’s Outline of Submissions’…

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Details
AGLC
Spradau and Comcare (Compensation) [2020] AATA 2054
Case
[2020] AATA 2054
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Mr Spradau against a decision by Comcare regarding his entitlement to compensation for permanent impairment and non-economic loss arising from a fractured left wrist sustained in 1997. Comcare had accepted the injury but determined that Mr Spradau did not meet the threshold for permanent impairment compensation. The Administrative Appeals Tribunal was required to determine whether Mr Spradau suffered a degree of permanent impairment resulting from the accepted injury, and if so, whether that impairment met the statutory threshold for compensation.

The Tribunal was tasked with assessing Mr Spradau's permanent impairment in accordance with the relevant provisions of the Comcare Guide, specifically Tables 9.9.1a, 9.9.1b, and 9.14. This involved considering medical evidence, including reports from Dr Garth Eaton and Dr Simon Journeaux, and determining the appropriate methodology for calculating whole person impairment. A key issue was whether the assessment should be made under the Comcare Guide or, exceptionally, under the American Medical Association's Guides to the Evaluation of Permanent Impairment (AMA5), and if so, whether the correct criteria and tables were applied by the medical assessors.

The Tribunal considered the medical opinions and the applicant's own account of his ongoing symptoms, including pain, loss of function, and the phenomenon he described as his wrist "failing." Dr Journeaux provided a supplementary report concluding that Mr Spradau's impairment was adequately assessed under Table 9.9 of the Comcare Guide, resulting in a 4% whole person impairment. He noted that while Mr Spradau had some permanent impairment, it was minor, and he did not meet the criteria for assessment under Table 9.14. Dr Journeaux also commented on Dr Eaton's previous assessments, suggesting that Dr Eaton had not correctly applied the Comcare Guide's rules for using AMA5 and had potentially misinterpreted findings of instability. The Tribunal found that Mr Spradau's impairment, assessed according to the Comcare Guide, did not reach the 10% whole person impairment threshold required for compensation.

Consequently, the Tribunal affirmed the decision under review, finding that Mr Spradau was not entitled to compensation for permanent impairment and non-economic loss.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal notes for completeness that Mr Spradau did not ‘agree or accept any of the comments, assertions and criticism’ contained in Comcare’s submissions on fluctuating impairments.[92]Evidence [92] Email from Mr Spradau’s solicitors dated 4 May 2020.Mr Spradau As previously referred to in these reasons, Mr Spradau provided a written statement to the Tribunal dated 30 September 2019, in which he relevantly said:[93][93] Exhibit 2, ST51, pages 207-212.In 1997, I was working as a Detective Constable with the drug squad. On 16 October 1997, while on duty, I fractured my left wrist and sustained a haematoma to my right knee when I was getting off my police issued motorcycle while conducting policing duties in Civic, ACT. I lost balance and landed on my left wrist, which I used to break my fall, and fell into the side of the concrete gutter. Following this I was transported by a police patrol car to Woden Hospital where an x-ray confirmed that I had fractured my left wrist. I had surgery that same day and a plate was inserted into the left wrist and subsequently removed eight weeks later. Both the left wrist and the right knee injuries were accepted by Comcare (the right knee for a previous injury and a separate claim).I went back to work with a cast on within two days of surgery performing light duties.I have been asked to provide a statement in addition to the Permanent Impairment and Non-Economic Loss (NELS) forms that I populated on 10 October 2017, as to the effects that the left wrist injury has had on me and my role as a police officer with the AFP.Part 1: PainI stated in the NELS in relation to Pain that it is often quite painful and that “failure” can be described as the wrist coming apart. I recall showing this to Dr Garth Eaton when he assessed me as well as Dr Simon Journeaux. I demonstrated this by holding the left hand and moving my left forearm in such a way as to manipulate the hand from the wrist. I can confirm that this “failure” still occurs and that it can occur without warning and be unexpected and that it causes anything that I am holding to be dropped.I also stated that when the wrist “fails” the three fingers on the outside of the hand become numbed and unusable for a period of time. This is still the case and depends on how the [sic] bad the “failure” is. An example of a really bad “fail” occurred on 29 September 2019 when I picked up a pot weighing approximately 5 kilograms at my house to move it to the courtyard where I had to let go of the left hand as it had “failed”. In this instance it rendered my left hand inoperable and took approximately 30 minutes for my fingers to regain feeling. I can illustrate the pain by comparing it to hitting your funny bone of the elbow which is intense pain for normally only 30 seconds. Mine lasts 30 minutes or more and I take Celebrex for the pain which is an anti-inflammatory and pain killer in one. I confirm that after a bad fail I need to strap the wrist with a board. Another example of a “fail” was when I was rowing a canoe with my son on 21 September 2019 and my wrist came apart. It swelled up like a balloon and I had to strap it to keep it together.Another “bad fail” occurred a few weeks ago in early September 2019, when I was orchestrating an arrest at Parliament House and my left wrist came apart when I was grappling with an offender and I had to be relieved from holding the suspect by another police officer as my wrist wouldn’t work. Part 2: SufferingI stated in the NELS that my suffering is illustrated by distress, frustration and anger at my self and sometimes my children and now my ex-partner. I am always concerned about what activity I am to undertake prior to undertaking it due to my lack of confidence in the left wrist. This is still the case. At work my left wrist still impacts my ability to complete operational tasks. For example, as a police officer we are required to perform Operational Safety Assessments (OSA) and pass them on an annual basis. Aside from the use of firearms, I’m required to undergo and demonstrate competency in unarmed tactics including take downs, arm locks and open and closed hand strikes, handcuffing, use of chemical weapons and baton strikes. I confirm that over the last few years that I have avoided physically engaging in the training for fear of further damaging my wrist.I provided a list in under part 2 suffering stating that the wrist affects me by not being able to complete normal tasks without effort such as:a. dressing, pulling trousers on, driving, self-care such as wiping my backside, changing a magazine on a police officer issues firearm, typing for extended periods and canoeing and engaging with my son who loves to wrestle. It also takes some effort to conduct shopping for groceries and housework in general. In fact, I was vacuuming on 27 September 2019 when my wrist “failed” due to picking up the Dyson vacuum cleaner.I cannot do some hobbies that I once did such as using a rifle as my cocking hand is my left hand and my wrist “fails” when I attempt to cock a rifle. I cannot ride motorcycles or pushbikes due to my left wrist due to the constant weight on my wrist. I cannot do most of the physical exercise that I once could such as chin ups, push ups and weight training. I like to do gardening but I need to be careful as I am conscious that the wrist may fail. …Whenever my left wrist “fails”, anything that I am holding hits the ground as I lose feeling in my fingers and the pain is so intense that it becomes the focus of my attention and everything else is parked. The “fail” occurs on a daily basis but the effect depends on the nature of the activity that I am performing from quite a minor effect to a serious one that requires immediate rest and strapping along with medication. Examination-in-chief

Decision

Reasons for decision

In January 2019, following Mr Spradau’s application to the Tribunal, Dr Journeaux was asked by Comcare’s solicitors to provide a supplementary report ‘as to the degree of Mr Spradau’s permanent impairment arising from his work-related “fractured left radius” condition’.[138] More specifically, Dr Journeaux’s opinion was sought on ‘how the correct whole-person impairment value for Mr Spradau is reached under the Comcare Guide’ and the assessment made by Dr Eaton under AMA5.[139] Dr Journeaux’s supplementary report dated 12 February 2019 relevantly stated that:[140][138] Exhibit 2, ST47.1, page 184.[139] ibid.[140] Exhibit 2, ST47, pages 178-183.1. Has the material with which we have briefed you changed any of the conclusions that you reached in your report of 13 July 2018?Having reviewed all the above additional documentation and noting objectively that he has a few degrees of reduction in range of motion in all directions and noting that the range of movement reduction in flexion and extension would fit between 50° and 60° it would be reasonable to give 1% whole person impairment for loss of extension and loss of flexion. Using a similar methodology a 1% whole person impairment for both the minor loss of radial deviation and minor loss of ulnar deviation could also be given. Therefore one could reasonably argue that he would be assessed as having 4% whole person impairment due to the injury sustained.Assessment under Table 9.14 of the Comcare Guide.2. By reference to the introduction to Part II of Chapter 9 of the Comcare Guide (page 86), do you consider that Mr Spradau's impairment is adequately assessed using Table 9.9? Why, or why not?With regard to Part I of the Comcare Guide (Principles of Assessment) I would point out that permanent impairment regards a loss, loss of use, damage or malfunction that is permanent which will to some degree will continue indefinitely. Mr Spradau fits this descriptor of permanent impairment. It should be noted with reference to Part I of the Comcare Guide is that the concept of whole person impairment is drawn from the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Edition 5). The extent of each impairment is expressed as a percentage value of a whole, normal healthy person.It should be noted that the Comcare Guide is the instrument to be used in the assessment of permanent impairment in a Comcare case. There are however exceptions to the use of the Comcare Guide. These exceptions are referenced in Part I of the Comcare Guide in Section 12, page 14. The American Medical Association’s Guides to the Evaluation of Permanent Impairment should only be used if the claimant’s impairment is of a kind that cannot be assessed in accordance with the provisions of Part 1 of the Comcare Guide. Specifically, in respect of upper extremity impairment assessment is made as per Chapter 9 in Part II of the Guide. In the introduction the following is noted: “In conducting an assessment the assessor must have regard to the principles of assessment (see pages 11-14) and the definitions contained in the glossary (see pages 15-16)”. Essentially the principles of assessment for upper extremity impairment revolve around range of active motion measurements.It should be pointed out in addition that although Mr Spradau sustained a wrist fracture it was appropriately managed by open reduction and internal fixation. In the whole panacea of wrist fractures he is at the minor end of the scale in terms of severity. This is commensurate with the clinical examination findings, particularly in relation to the minor restriction in measurable range of motion that he has currently which is functional. He demonstrates objectively minor loss of movement in all directions.3. By reference to the introduction to Part II of Chapter 9 of the Comcare Guide (page 86), does Mr Spradau's condition involve one of the following:(a) Radiographically demonstrated joint instability;(b) Radiographically demonstrated arthritis; or(c) Mr Spradau has had an arthroplasty.I have noted the comments in respect of page 86 (Part II of Chapter 9 of the Comcare Guide). It is my view that as a medical assessor for Mr Spradau that his impairment is adequately and appropriately assessed with reference to Table 9.9. The caveat with this examination in terms of utilising the range of motion method is that if the condition being assessed involves radiographically demonstrated joint instability, radiographically demonstrated arthritis or where the employee has an arthroplasty the medical assessor may consider the effect of the injury on upper extremity and function instead and determine the WPI rating using Table 9.14. Mr Spradau in my view does not have radiographically demonstrated joint instability. Radiographically demonstrated instability can only be assessed with reference to the methodology in Chapter 16 of AMA5, Section 16.7e in the section marked carpal instability on page 502. Radiographic instability is not assessed under the Comcare Guide other than if Table 9.14 is to be used. He does have radiographically demonstrated arthritis secondary to injury which is minor. He has not had an arthroplasty. If performing an assessment by Table 9.14 the instructions as laid out in page 108 of the Comcare Guide are to be followed. In particular it should be noted that at least one major criterion and two minor criteria (where listed) must be satisfied for a WPI rating to be assigned under Table 9.14.If one was to utilise this table for assessment in Mr Spradau’s case he, in my view, he [sic] does not satisfy the major criteria of minor limitations in use of extremity for personal care but does satisfy one minor criteria of being unable to lift more than 30 pounds. Note it is written as kg but in fact should be pounds. He therefore would not satisfy the criteria in this table for assessment this way. Even if he did satisfy the major and minor criteria I note he indicates he is ambidextrous and therefore his percentage whole person impairment if is [sic] satisfied this table would be either 3% or 5% whole person at the most.4. Would you characterise Mr Spradau's left upper extremity as a 'dominant' extremity, a 'non-dominant' extremity, or neitherNeither. He indicated he is ambidextrous. He does however write with his right hand so in this regard I would say the left upper limb is non-dominant.…5. Does Mr Spradau's impairment cause loss of digital dexterity in his left upper extremity? If so, would you rate this as a minor, moderate, or greater than moderate loss of digital dexterity?I did not identify any loss of digital dexterity in his left upper limb. If he were to have loss of digital dexterity I would assess this at the most as minor having considered the nature of the injury sustained.6. Does Mr Spradau's impairment cause any limitations in the use of his left upper extremity for personal care? If so, would you rate these limitations as a minor, moderate, or greater than moderate limitations?On the basis of the history given to me by Mr Spradau there were no limitations in the use of his left upper limb extremity for personal care. If they were present I consider any limitations to be of minor degree at the most.…10. Please comment on the reasoning used by Dr Garth Eaton in his reports dated 25 October 2017 and 30 December 2018.Report Dr G Eaton, Occupational Physician, dated 25 October 2017.In this report Dr Eaton has noted the reduction in power grip similar to what I observed when I examined him. He noted Mr Spradau indicated he is ambidextrous but undertook handwriting with his right hand. Specific examination of the left wrist revealed the scar on the volar aspect and he observed on the day he examined him wrist flexion reduced to 40° (60° as normal range). He noted extension (dorsiflexion) was normal. He did not comment on radial or ulnar deviation range of the motion. I note Dr Eaton in the first part of the examination indicated Mr Spradau was able to sublux his left wrist. Mr Spradau did not do this with me and I did not observe any instability nor would it be expected with the nature of the injury he sustained. I would interpret Dr Eaton’s assessment of instability has been on a clinical basis only and not formulated on the basis of x-rays examination. I wonder if he has misinterpreted the deformity in some way. In his assessment of permanent impairment he and I are both in agreement that Mr Spradau sustained permanent impairment to the left wrist as a result of the injury. He assessed Mr Spradau using the Comcare Guide Table 9.91a and Table 9.91b as having a 2% whole person impairment. He indicated that this table was inadequate for a permanent impairment assessment for the left wrist injury. He therefore utilised Table 9.4 [sic] without referencing major or minor criteria indicating his rationale for choosing the 10% whole person impairment for the nondominant extremity. He again said that he did not believe this table adequately cover [sic] the left wrist injury. He gave no specific reasons. I note Dr Eaton did not reference the Comcare Guide rules for utilising American Medical Association’s Guides to the Evaluation of Permanent Impairment (Edition 5) but proceeded regardless to assess Mr Spradau utilising them. I note he then assessed Mr Spradau’s apparent subluxation with reference to Table 16-22 as 20% wrist joint impairment. I would need to personally perform a more targeted examination/evaluation in respect of Mr Spradau to assess the issue of subluxation which would be very unusual in the context of the wrist injury he sustained. In addition, wrist joint instability is generally assessed utilising x-rays and it would be more appropriate if one was to assess using American Medical Association’s Guides to the Evaluation of Permanent Impairment (Edition 5) to utilise Table 16-25 with reference to Figure 16-51, (the carpal instability section on page 502). Even accepting Dr Eaton’s findings of 20% wrist joint impairment he did not apply the correct methodology for assessment for carpal instability. The 20% impairment he references in terms of the instability actually translates to 8% upper extremity impairment. The 24% impairment he references is actually upper extremity and not whole person.Medical report of Dr G Eaton, Occupational Physician, dated December 2018:I note the reason Dr Eaton gives is that pertaining to the demonstrated subluxation of the left wrist that Dr Eaton justifies using Table 9.14 utilising clinical judgement but did not reference major and minor criteria which are supposed to be used in making an assessment with this table. I note Dr Eaton, in my view, erroneously believes that Mr Spradau’s left injury was severe. I would disagree with this assessment of Mr Spradau’s injury. Dr Eaton then thought it appropriate to assess Mr Spradau without referencing the rules regarding utilisation of AMA 5 in the Comcare Guide to assess him. With reference to AMA 5, even if it should be used in this case, Dr Eaton did not utilise appropriate AMA 5 methodology with reference to Section 16.7, “Impairment of upper extremities due to other disorders”.

Ratio Decidendi

Legal Principle Established

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