Spradau and Comcare (Compensation)
[2020] AATA 2054
•1 July 2020
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
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.
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.
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’ dated 10 March 2020;
(e)‘Applicant’s Submissions on Fluctuating Impairment’ dated 25 March 2020;
(f)‘Comcare’s Submissions Regarding Fluctuating Impairment’ dated 21 April 2020; and
(g)Email from Mr Spradau’s solicitors in response to Comcare’s submissions on fluctuating impairment dated 4 May 2020.
[1] Being Exhibits 1, 2 and 3, respectively.
[2] Exhibit 4.
PROCEDURAL ISSUE
Mr Spradau’s application to the Tribunal made in October 2018 was listed for a hearing by the Tribunal over two days on 30 September and 1 October 2019. At the commencement of the hearing, Counsel for Comcare objected to Mr Spradau giving evidence because he had not filed and served a witness statement in the proceeding. Comcare relied on subsection 66(1) of the SRC Act, which provides that a claimant seeking to adduce any matter in evidence before the Tribunal that has not been disclosed at least 28 days before the day fixed for the hearing shall not be permitted to do so without the leave of the Tribunal. Counsel for Mr Spradau took issue with Comcare’s opposition to him giving evidence without a witness statement; he was unaware of a specific reason for Mr Spradau not providing such a statement.
The Tribunal indicated to the parties that it expected to hear evidence from Mr Spradau; he was the applicant, he was listed as a witness in the agreed witness schedule and Comcare had not previously taken issue with him giving evidence, including during the pre-hearing directions hearing the Tribunal held in August 2019. Due to their opposing positions in relation to Mr Spradau giving evidence at the hearing, after a short adjournment to reach a resolution, the parties agreed that the only available course was for the hearing to be vacated so that a witness statement from Mr Spradau could be filed and served in the proceeding and new hearing dates identified. In the circumstances, the Tribunal accepted this course of action because Mr Spradau’s evidence was important in its consideration of his application. Later that day, Mr Spradau filed and served a witness statement in the proceeding.
Following the vacation of the hearing, the Tribunal identified that a Direction had been made in December 2018, before Mr Spradau’s application had been constituted to this Tribunal, for Mr Spradau to provide a witness statement. At the request of the parties, this Direction was subsequently vacated more than six months before the hearing. That is, both parties, and specifically Comcare, were aware of a direction requiring Mr Spradau to provide a witness statement and requested that direction be vacated and therefore no longer required to be complied with, despite Comcare’s subsequent opposition at the hearing to Mr Spradau giving evidence due to him not having provided such a statement. While the Tribunal accepts that Counsel would likely not have been aware of these events in advance of the position that was subsequently taken on behalf of Comcare at the hearing in September 2019, the solicitors for Comcare would have been so aware. In this regard, the Tribunal notes at the pre-hearing directions hearing in August 2019, the solicitors for Comcare discussed the witness schedule for the hearing, including the timing of Mr Spradau’s oral evidence to the Tribunal. No issue was then taken, or objection made, by Comcare to the non-existence of a witness statement from Mr Spradau such that it would prohibit him from giving evidence at the hearing. This background is to be taken into account when considering the legislative requirement in the SRC Act that places the responsibility on the claimant to disclose any matter it wishes to admit into evidence 28 days in advance of a hearing of the proceeding.
As a result of the vacation of the hearing in late September 2019, and considering the parties’ availability after October 2019, the Tribunal was only able to list a new hearing for March 2020, being six months after the original hearing date. This delay therefore created undue inconvenience and costs for all involved and was regrettable in circumstances where the issue that led to the delay had previously been dealt with and agreed between the parties, but became an issue of unresolvable contention at the start of the initial hearing following Comcare’s objection. The Tribunal hopes that such future issues are ventilated and resolved in advance of a hearing, for example at the pre-hearing directions hearing held by the Tribunal to address such issues, rather than at the commencement of a hearing which can force the vacation of long-standing hearing dates for a proceeding, as unfortunately occurred in this application, and potentially undermine a party’s credibility as a model litigant.
SUBSANTIVE ISSUE
The issue for determination by the Tribunal was the degree of Mr Spradau’s permanent impairment resulting from his accepted injury in 1997 pursuant to the Guide to the Assessment of the Degree of Permanent Impairment (Guide).[3] For an amount of compensation to be payable to Mr Spradau for permanent impairment and non-economic loss, the degree of his whole person impairment assessed under the Guide must be at least 10%.
[3] Guide to the Assessment of the Degree of Permanent Impairment, Edition 2.1, 2011.
BACKGROUND
In 1990, Mr Spradau commenced employment with the AFP.[4]
[4] Exhibit 2, ST51, page 207.
On 16 October 1997, while on duty with the AFP, Mr Spradau fractured his left wrist and sustained a haematoma of his right knee when, while getting off his motorcycle and removing his helmet, he lost balance and landed on his left wrist, which he used to break his fall, and landed in the concrete gutter in Civic in the Australian Capital Territory.[5] The fracture of Mr Spradau’s distal radius was fixed internally with a volar plate and screws.[6] Between six to eight weeks later, Mr Spradau’s cast was removed and replaced with a metal brace.[7]
[5] ibid., page 207; Exhibit 1, T4, page 16.
[6] Exhibit 1, T5, page 21; T7, page 24.
[7] Exhibit 1, T11, page 33; Exhibit 2, ST51, pages 207-208.
In February 1998, Mr Spradau had the plate and screws removed from his left wrist region and was subsequently treated with physiotherapy and prescribed an exercise regime.[8]
[8] Exhibit 1, T7, page 24; T11, page 33; T17, pages 60-61.
On 10 October 2017, Mr Spradau applied to Comcare for compensation for permanent impairment and non-economic loss under sections 24 and 27 of the SRC Act in relation to his left wrist condition.[9]
[9] Exhibit 1, T13, pages 40-53.
On 14 August 2018, Comcare made a determination denying Mr Spradau’s claim. Comcare was not satisfied that ‘Mr Spradau’s left wrist injury results in a permanent impairment that is at least 10% WPI [Whole Person Impairment] when assessed under the Comcare Guide’.[10]
[10] Exhibit 1, T18, pages 74-76.
On 27 September 2018, Mr Spradau applied to Comcare for reconsideration of its determination.[11]
[11] Exhibit 1, T19, pages 77-78.
On 25 October 2018, Comcare’s reconsideration affirmed its determination declining liability to pay compensation to Mr Spradau for permanent impairment and non-economic loss under the SRC Act in relation to his left wrist condition. In its reconsideration decision, Comcare stated that ‘it is not established that your healed left wrist fracture has resulted in a permanent impairment of at least 10% when assessed under the approved Guide’.[12]
[12] Exhibit 1, T1.1, pages 6-10.
On 26 October 2018, Mr Spradau applied to the Tribunal for review of Comcare’s decision refusing his claim for permanent impairment and non-economic loss for his left wrist condition.[13]
LEGISLATIVE INSTRUMENTS
[13] Exhibit 1, T1, pages 1-5.
The SRC Act
Subsection 14(1) of the SRC Act provides:
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Section 4 of the SRC Act defines ‘impairment’ to mean:
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.
Section 4 of the SRC Act also defines ‘permanent’ to mean ‘likely to continue indefinitely’.
Section 24 of the SRC Act sets out when compensation is payable for an injury resulting in a ‘permanent impairment’, relevantly as follows:
(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.
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(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, if:
(a) the employee has a permanent impairment other than a hearing loss; and
(b) Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
…
(9) For the purposes of this section, the maximum amount is $80,000.[14]
[14] The ‘maximum amount’ payable under subsection 24(9) of the SRC Act from 1 July 2019 is $192,717.77. Accordingly, the current amount of compensation for a degree of impairment of 10% under section 24 is $19,271.77. This excludes compensation for non-economic loss under section 27 of the SRC Act. Refer to: accessed on 12 March 2020.
Section 27 of the SRC Act provides for Comcare’s liability to pay additional compensation for ‘non-economic loss’ suffered by an employee as a result of an injury resulting in a ‘permanent impairment’ pursuant to section 24 of the SRC Act. Under section 4 of the SRC Act, ‘non-economic loss’ means ‘loss or damage of a non‑economic kind suffered by the employee (including pain and suffering, a loss of expectation of life or a loss of the amenities or enjoyment of life) as a result of that injury or impairment and of which the employee is aware’.
The ‘approved Guide’ referred to in section 24 of the SRC Act is defined in section 4 to mean ‘the document, prepared by Comcare in accordance with section 28 under the title “Guide to the Assessment of the Degree of Permanent Impairment”, that has been approved by the Minister and is for the time being in force’ and ‘if an instrument varying the document has been approved by the Minister–that document as so varied’.
Section 28 of the SRC Act provides legislative authority for the Guide, and is set out relevantly as follows:
(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;
(b) criteria by reference to which the degree of non‑economic loss suffered by an employee as a result of an injury or impairment shall be determined; and
(c) methods by which the degree of permanent impairment and the degree of non‑economic loss, as determined under those criteria, shall be expressed as a percentage.
(2) Comcare may, from time to time, by instrument in writing, vary or revoke the approved Guide.
(3) A Guide prepared under subsection (1), and a variation or revocation under subsection (2) of such a Guide, must be approved by the Minister.
(3A) A Guide prepared under subsection (1), and a variation or revocation under subsection (2) of such a Guide, is a legislative instrument made by the Minister on the day on which the Guide, or variation or revocation, is approved by the Minister.
(4) Where Comcare, a licensee 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, or the degree of non‑economic loss suffered by an employee, the provisions of the approved Guide are binding on Comcare, the licensee 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.
(5) The percentage of permanent impairment or non‑economic loss suffered by an employee as a result of an injury ascertained under the methods referred to in paragraph (1)(c) may be 0%.
(6) In preparing criteria for the purposes of paragraphs (1)(a) and (b), or in varying those criteria, Comcare shall have regard to medical opinion concerning the nature and effect (including possible effect) of the injury and the extent (if any) to which impairment resulting from the injury, or non‑economic loss resulting from the injury or impairment, may reasonably be capable of being reduced or removed.
The Comcare Guide
The relevant Guide, being the document prepared by Comcare, approved by the Minister and currently in force pursuant to section 28 of the SRC Act, is the Guide to the Assessment of the Degree of Permanent Impairment, Edition 2.1, 2011.[15] The Guide was tabled in the Parliament and was not subject to any successful disallowance motion and is therefore taken to have been allowed by the Parliament as a legislative instrument.
[15] Edition 2.1 was registered on the Federal Register of Legislative Instruments as F2011L02375.
The first edition of the Guide was approved by the relevant Minister on 27 July 1989. This first edition was revoked and replaced by the second edition of the Guide from 1 March 2006. The second edition of the Guide was revoked with effect from 1 December 2011 and Edition 2.1 of the Guide applies from that date in relation to claims received by the relevant authority[16] under sections 24, 25 or 27 of the SRC Act.[17]
[16] Here being Comcare, pursuant to the definition of ‘relevant authority’ under section 4 of the SRC Act.
[17] Guide to the Assessment of the Degree of Permanent Impairment, Edition 2.1, 2011, page x.
The Guide refers to subsection 24(5) of the SRC Act which, as set out above, provides for the determination of ‘the degree of permanent impairment of the employee’ resulting from an injury, being the employee as a whole person. In this regard, the Guide notes that the ‘whole person impairment’ concept ‘provides for compensation for the permanent impairment of any body part, system or function to the extent to which it permanently impairs the employee as a whole person’.[18]
[18] ibid., page xi.
It is further noted that Part 1, Division 1 of the Guide, dealing with the assessment of the degree of an employee’s permanent impairment resulting from an injury, is ‘based on the concept of whole person impairment which is drawn from the American Medical Association’s Guides to the Evaluation of Permanent Impairment 5th edition 2001 (AMA5)’.[19] To this end, Division 1 of the Guide ‘assembles into groups, according to body system, detailed descriptions of impairments’, which are expressed as a percentage value of ‘the whole, normal, healthy person’.[20] As a result, a percentage value can be assigned to an employee’s impairment by reference to the relevant description in the Guide, noting that there is no discretion to attribute a percentage value which is not specified in the relevant impairment table.[21]
[19] ibid., page 11.
[20] ibid.
[21] ibid., pages 11 and 12.
The Guide provides that, if an employee’s impairment ‘is of a kind that cannot be assessed’ in accordance with Part 1 of the Guide (which contains Division 1), the assessment is to be made under the AMA5.[22]
[22] ibid., page 13.
Part II of the Guide, in Part 1, Division 1, relates to the upper extremities of a person, being the hands and fingers, wrists, elbows and shoulders.[23] The Guide relevantly notes that a whole person impairment rating from Tables 9.9.1a and 9.9.1b (dealing with wrists), ‘must not be combined’ with a whole person impairment rating under Table 9.14 (dealing with upper extremity function), ‘if they assess the same condition in the same upper extremity’.[24]
[23] ibid., pages 110-147.
[24] ibid., page 110.
In this regard, the Guide further notes that if a medical assessor considers that the impairment ‘is not adequately assessed’ under Tables 9.9.1a and 9.9.1b (dealing with wrists) and the condition involves radiographically demonstrated joint instability or arthritis, the medical assessor ‘may consider the effect of the injury on upper extremity function instead and determine the WPI [Whole Person Impairment] rating using Table 9.14’.[25] The Guide also states that:[26]
Table 9.14 cannot be used unless the condition involves radiographically demonstrated joint instability or arthritis or the employee has had an arthroplasty.
Where a condition cannot be assessed under a specific table in the upper extremities group, an assessment may be made under the provisions of the American Medical Association’s Guides to the Evaluation of Permanent Impairment 5th edition 2001.
[25] ibid.
[26] ibid.
Section 9.9 of the Guide provides criteria by which to assess impairment of the wrists, namely, range of motion, which are set out in Table 9.9.1a of the Guide regarding ‘wrist flexion/extension’ and Table 9.9.1b of the Guide regarding ‘radial and ulnar deviation of wrist joint’.
Section 9.14 of the Guide regarding upper extremity function relevantly states that:[27]
At least one major criterion, and at least two minor criteria (where listed), must be satisfied for a WPI rating to be assigned under Table 9.14. Where possible, the major criteria should be assessed on the basis of neurological examination of motor strength, co-ordination and dexterity. Where possible, functional activities should be assessed by observation of the specified activities.
Table 9.14 should be used only to assess impairment from objectively identified orthopaedic or neurological conditions arising in, and affecting, the upper extremities.
[27] ibid., page 145.
Table 9.14 of the Guide regarding upper extremity function is set out as follows:[28]
[28] ibid., pages 146-147.
% WPI % WPI % WPI Major criteria
(at least one required)Minor criteria
(at least two required where listed)Non-dominant extremity Dominant extremity Both extremities 0 0 0 Normal digital dexterity.
No limitations in use of extremity for personal care.Writes 2 A4 pages or more at one time.
Can lift more than 13 kilograms (males).
Can lift more than 9 kilograms (females).
Able to lace shoes easily.
Joins paper clips without difficulty.3 5 10 Minor loss of digital dexterity.
Minor limitations in use of extremity for personal care.Rests after writing an A4 page.
Cannot lift more than 13 kilograms (males).
Cannot lift more than 9 kilograms (females).
Finds it difficult to do up shoelaces.
Fumbles when joining paper clips.10 10 20 Moderate loss of digital dexterity.
Moderate limitations in use of extremity for personal care.Rests after writing half an A4 page.
Cannot lift more than 4.5 kilograms.
Cannot do up shoelaces.
Cannot join paperclips.
Dresses slowly unassisted.15 20 35 Major loss of digital dexterity.
Major restrictions in personal care.Rests after writing 50 words or less.
Cannot lift more than 1.5 kilograms.
Cannot put on a tie or belt.
Needs assistance to cut up food.
Needs some assistance to dress.25 30 50 Little useful digital co-ordination.
Severely limited use of extremity for personal care.Rests after writing 10 words or less.
Cannot lift more than 0.5 kilograms.
Constantly drops light objects (eg, cups).
Unable to cut up food.
Needs extensive assistance to dress.30 40 60 No co-ordination of digits.
Severely limited use of extremity for personal care.Unable to sign name.
Constantly needs a splint to write or eat.
Unable to lift light objects.
Needs food placed in mouth to eat.
Unable to dress without assistance.40 50 70 Minimal extremity movement against gravity.
Cannot use extremity for personal care.Cannot use extremity to eat.
Cannot bring a pen to paper.
Cannot raise extremity to assist dressing.60 60 84 Unable to use upper extremity at all. CONTENTIONS
Mr Spradau
In his written submissions, Mr Spradau noted that Dr Eaton, Occupational Physician, determined that he had a whole person impairment of 2% using Tables 9.9.1a and 9.9.1b of the Guide, assessing impairments to range of motion of the wrists, and Dr Eaton ‘opined that…this was an inadequate assessment that did not reflect the true level of impairment’.[29] As a result, using Table 9.14 of the Guide, regarding upper extremity function, Dr Eaton determined a whole person impairment of 10% for Mr Spradau, but ‘opined that this was also an inadequate assessment as the Applicant is ambidextrous’.[30] Accordingly, Dr Eaton assessed Mr Spradau using the AMA5 and assigned him a whole person impairment of 24%.[31]
[29] Mr Spradau’s Statement of Facts, Issues and Contentions dated 24 April 2019, pages 1-2.
[30] ibid., page 2.
[31] ibid.
It was contended that the limitation on the functioning of Mr Spradau’s arm, wrist and hand by reason of pain is an impairment. For example, his ‘weak grip strength and tendency to drop things is an impairment. The loss of digital dexterity in the left hand is an impairment’.[32] Mr Spradau submitted that the Guide cannot ‘compensate only some kinds of permanent impairment’ or ‘automatically relegate some kinds of impairment to below the 10% threshold for compensability no matter how severe the impairment is’.[33]
[32] ibid., page 7.
[33] ibid., page 12.
In this regard, Mr Spradau argued that where two or more tables of the Guide relate to the same impairment but operate to the exclusion of each other, the employee is entitled to the benefit of the table that is most beneficial.[34] In Mr Spradau’s case, Dr Eaton’s assignment of a 10% rating under Table 9.14 is more beneficial than the 2% under Tables 9.9.1a and 9.9.1b of the Guide.[35] However, it was contended that where there is ‘no relevant and applicable Table in the Guide, the Guide adopts AMA5 as the default position subject to any explicit restrictions on this approach’.[36]
[34] Whittaker v Comcare (1998) 86 FCR 532; Comcare v Tiscay (1992) 38 FCR 181; Bryant v MRCC (2008) FCA 1424; Guppy v APC (2013) FCA 489.
[35] Mr Spradau’s Statement of Facts, Issues and Contentions dated 24 April 2019, page 12.
[36] ibid.
It was submitted that Mr Spradau’s claim ‘concerns the partial loss of Applicant’s left arm and hand as a whole’.[37] This was further detailed as a claim ‘for the loss of the use of the arm as a whole, the wrist, the hand (digital dexterity) and the loss of grip strength’.[38] As a result, Mr Spradau said it was ‘irrational’ for Comcare to deny the claim on the basis that the impairment suffered by Mr Spradau is adequately compensated by the 0% whole person impairment assigned for the loss of range of rotation in the wrist as assessed by Tables 9.9.1a and 9.9.1b of the Guide.[39] Additionally, Mr Spradau argued, there is no relevant table in the Guide to assess the loss of grip strength, but there is such a table in AMA5 ‘hence recourse to the AMA5 is necessary to adequately assess the impairment for loss of grip strength’.[40] Dr Eaton assigned Mr Spradau a whole person impairment of 24% under the AMA5.[41]
[37] ibid., page 13.
[38] ibid., page 15.
[39] ibid.
[40] ibid.
[41] ibid., page 18.
Mr Spradau contended that to be assigned 10% whole person impairment under Table 9.14 of the Guide, the major criteria ‘requires there to be one of: (a) minor loss of digital dexterity; or (b) moderate limitations in use of extremity for personal care’ [emphasis added].[42] In this regard, Mr Spradau submitted that Dr Eaton noted ‘the loss of extension in three fingers and the tendency to drop things…is sufficient to satisfy the “minor” loss of digital dexterity’.[43] The Tribunal notes, contrary to this contention, that a ‘minor loss of digital dexterity’ under Table 9.14 of the Guide is not one of the major criteria required to be assigned a 10% whole person impairment for a non-dominant extremity; this requires a ‘moderate loss’, not a ‘minor loss’ of digital dexterity. A ‘minor loss of digital dexterity’ is one of the major criteria for assignment of a 3% whole person impairment rating for a non-dominant extremity or 5% for a dominant extremity.[44] In any event, Mr Spradau’s contention was that he satisfied the 10% impairment rating to make Comcare liable to pay compensation for his permanent impairment.
[42] ibid, page 17.
[43] ibid.
[44] Guide, page 146.
In relation to the associated ‘minor criteria’ in Table 9.14 of the Guide, of which two are required for any assignment of a degree of impairment (together with at least one ‘major criteria’), Mr Spradau contended that he was able to be assigned a 10% whole person impairment rating under Table 9.14 of the Guide because:[45]
Dr Eaton reports that the Applicant is unable to write with his left hand notwithstanding that he is ambidextrous. He cannot lift heavy weights. This is sufficient to satisfy (a) and (b) above but it is the case that the Applicant would also satisfy the remaining criteria in terms of the use of his left hand. This will be the subject of later evidence.
[45] Mr Spradau’s Statement of Facts, Issues and Contentions dated 24 April 2019, pages 17-18.
In closing submissions on behalf of Mr Spradau, it was contended that the Guide cannot ‘exclude the generality of the [SRC] Act compensating permanent impairment by drafting narrowly in the Guide, that includes only some forms of impairments and not others’.[46] That is, the Guide cannot be ‘cast’ or drafted in ‘such terms that you’re never going to satisfy it, therefore ‘to get around the problem you have to take a beneficial construction of the Guide’.[47] Accordingly, the word in the Guide, ‘cannot’, for example in relation to lifting 4.5 kilograms, does not mean ‘never in any circumstances’.[48] In this regard, Mr Spradau’s impairment exists ‘whether the impairment is present all the time, whether it’s present part of the time or whether it’s responsive to activities’.[49]
[46] Transcript of Proceedings, page 50.
[47] ibid., pages 50-51.
[48] ibid., page 53.
[49] ibid., page 51.
Counsel for Mr Spradau also contended that a finding by Dr Journeaux that he would ‘struggle or cannot lift 13 kilos’, ‘doesn’t tell you one way or the other whether he would have the same problem with lifting 4.5 kilos’, accordingly the Tribunal cannot infer from Dr Journeaux’s view ‘anything about the 4.5’.[50] As to how to address the minor criterion in Table 9.14 of the Guide stating: ‘cannot lift more than 4.5 kilograms’, Counsel submitted that the Tribunal had before it the opinion of Dr Eaton expressly dealing with Mr Spradau’s lifting of 4.5 kilograms, the history Mr Spradau gave to the experts, general common knowledge of such weights and Mr Spradau’s evidence to the Tribunal that he ‘cannot lift more than 4.5’; that is ‘he has to be careful, he has to be cautious, he has to abstain from doing it’.[51]
[50] ibid., page 53.
[51] ibid., pages 53-54.
In relation to Mr Spradau’s digital dexterity, it was contended that the ‘fact that he’s got no loss of digital dexterity when his wrist hasn’t popped out, so he’s told you he can touch his fingernails, that doesn’t mean anything about whether he’s lost digital dexterity when the impairment is activated when his wrist popped out’; Mr Spradau ‘can’t hold things, he can’t touch things and he gets numbness’ such that he has ‘a major loss of digital dexterity when the wrist pops out’.[52]
[52] ibid., page 54.
It was submitted that ‘permanent does not mean constant’ and nothing in the Guide ‘says the impairment must be 24/7’, which would be inconsistent with cases on fluctuating impairments.[53] In this regard, towards the end of Mr Spradau’s closing submissions, Counsel stated that ‘fluctuating impairment is at the core of this case’.[54] In circumstances where it was agreed, albeit at the end of the hearing, that this issue was of significance to Mr Spradau’s case, the Tribunal gave the parties leave to provide post-hearing written submissions on fluctuating impairment that are discussed further below in these reasons.
[53] ibid., page 55.
[54] ibid., page 80.
Counsel also contended that the criteria in the Guide must be given a beneficial construction where ‘the meaning of the words or the technology’s changed’, for example the criterion regarding writing, the intent or purpose of that should be considered, which was to ‘see whether it’s effecting your capacity to communicate with people’. That is, ‘[y]ou have to update the language in a beneficial way’.[55] Therefore, in relation to the minor criteria for a 10% impairment rating, it was said that Mr Spradau ‘meets the first one, the writing, he meets the lifting, the 4.5 kilos. He meets the dresses slowly, and that’s three, he only needs to meet two…and on the other side he meets both of them [the major criteria]’.[56]
[55] ibid., page 55.
[56] ibid., page 56.
Comcare
In its written submissions, Comcare contended that the degree of permanent impairment suffered by Mr Spradau due to his left wrist condition can be assessed under the provisions of the Guide and there was no basis to resort to AMA5 to assess Mr Spradau’s condition.[57]
[57] Comcare’s Statement of Issues, Facts and Contentions dated 16 May 2019, page 5.
In this regard, Comcare submitted that the degree of impairment affecting Mr Spradau’s left wrist can be assessed under Tables 9.9.1a and 9.9.1b of the Guide which, as previously noted, assess impairments to range of motion of the wrists. Comcare stated that the evidence of Dr Eaton and Dr Journeaux, Consultant Orthopaedic Surgeon, ‘establishes that the Applicant’s whole person impairment, as assessed under those tables, is no more than 4%’.[58] As a result, Comcare argued, Mr Spradau’s impairment fails to meet the 10% threshold for compensation to be payable to an employee pursuant to subsection 24(7) of the SRC Act.
[58] ibid., page 6.
Comcare further contended that Dr Journeaux’s ‘evidence-based assessment of the Applicant’s impairment under Table 9.14 of the approved Guide ought properly to be preferred’ and, on that basis, Mr Spradau’s degree of permanent impairment is ‘no more than 3% or 5%’.[59] In relation to this assessment using Table 9.14 of the Guide, Comcare argued that Mr Spradau’s impairment fails to meet the 10% threshold under subsection 24(7) of the SRC Act.
[59] ibid.
In response to Mr Spradau’s previously argued position that the Guide was inadequate to assess his condition and the AMA5 must therefore be used, Comcare noted that the Guide allows an assessment of an employee’s degree of permanent impairment under AMA5 in circumstances where a condition ‘cannot be assessed under a specific table in the upper extremities group’[60] and contended that AMA5 may not be used because Mr Spradau’s left wrist injury can be assessed under the Guide.[61]
[60] Guide, page 110.
[61] Comcare’s Statement of Issues, Facts and Contentions dated 16 May 2019, page 6.
In closing submissions, it was contended that the Tribunal’s review concerned the degree of whole person impairment affecting Mr Spradau and that the wrist is ‘essentially only a minor component of the whole person’ when viewed against the range of functions and abilities of a person. In this regard, Mr Spradau’s wrist condition is a ‘minor one’, as confirmed by Dr Journeaux when assessing it against all possible wrist injuries, and therefore is only a minor impairment of a whole person.[62]
[62] Transcript of Proceedings, page 58.
Counsel further submitted that an assessment of a person’s claim must be undertaken pursuant to the approved Guide, ‘rather than some modification or other notion in relation to the approved Guide’.[63] In this regard, Counsel said that a beneficial construction approach to interpreting a legislative instrument ought properly occur in circumstances of ambiguity.[64] Here, while there was no dispute that Mr Spradau has an ‘injury’ and an ‘impairment’, the issue before the Tribunal was the application of Table 9.14 of the Guide to that permanent impairment as a result of his wrist condition. To that end, Counsel contended that ‘[t]he criteria must be satisfied. It’s not a case of a doctor using “clinical judgment”, to guess what a person can or cannot do. It’s a case of satisfaction of criteria’.[65] In this way, the evidence of Dr Journeaux should be preferred because he undertook testing to assess Mr Spradau’s ability to perform certain activities required in Table 9.14 of the Guide.
Fluctuating Impairment
[63] ibid., page 59.
[64] ibid.
[65] ibid., page 60.
Mr Spradau
As previously discussed, at the end of the hearing, Counsel for Mr Spradau emphasised the significance of the contention that his condition was a fluctuating impairment. In circumstances where this argument was not fully ventilated during the hearing, the Tribunal gave leave to the parties to provide post-hearing written submissions on the law of fluctuating impairments.
In those submissions, Mr Spradau contended that the loss of use or malfunction in the definition of ‘impairment’ in section 4 of the SRC Act is referring to the normal use of function of the part of the body concerned. In the case of Mr Spradau’s wrist, this ‘includes its rotational function; in the case of his hand this includes its gripping and manipulative functions; in the case of his arm this includes its function in lifting or carrying’.[66]
[66] ‘Applicant’s Submissions on Fluctuating Impairment’ dated 25 March 2020, page 2.
It was further contended that the fact that Mr Spradau remains at work, albeit in selective duties, is ‘not inconsistent with his impairment and does not imply that his level of impairment must be very little if any’.[67]
[67] ibid., page 3.
Mr Spradau submitted that ‘the definition of “impairment” does not contain any requirement that the malfunction or partial loss of use be constant in the sense of always being experienced or that it being experienced for any particular number of hours of a day or greater frequency’.[68] In this regard, the 10% impairment rating in Table 9.14 of the Guide:[69]
requires only a “moderate” limitation in use of the arm where “moderate” falls somewhere between “minor” and “major”. It only requires that the moderate loss occur in connection with the doing of designated activities. Avoid the activities and there is no impairment being experienced, other than the decision of the person to engage in the avoidance.
[68] ibid., page 3.
[69] ibid., page 4.
The Tribunal was referred to a number of cases, the first being Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533 (Asioty), which concerned the issue of whether a person’s susceptibilities could constitute an ‘injury’ or ‘disease’ for the purposes of the ACT Workers’ Compensation Act. The Court held that the susceptibility of an abattoir worker to the skin condition dermatitis if exposed to certain chemicals was an injury and that ‘the condition of the appellant’s hands, with their now enhanced susceptibility to dermatitis, has intensified the disease from which the appellant suffers. This enhanced susceptibility constitutes an aggravation of the disease’.[70]
[70] Asioty v Canberra Abattoir Pty Ltd (1989) HCA 40 at [15]. Referred to in the Applicant’s Submissions on Fluctuating Impairment dated 25 March 2020, pages 4-5.
The second case was Drayton v Crossroads Motors Pty Ltd [1995] NSWSC 82 (Drayton), whereby the Court held that a person suffered from a permanent impairment under the NSW Workers’ Compensation Act, as a result of dermatitis symptoms ‘that are not always present’.[71] The loss of use the person suffered was because of the existence ‘at all relevant times’ of the condition, which is such that ‘when in contact with the relevant substances and often otherwise, she cannot use her hands for the relevant purposes’.[72]
[71] Drayton v Crossroads Motors Pty Ltd (1995) NSWSC 82 at [11]. Referred to in the Applicant’s Submissions on Fluctuating Impairment dated 25 March 2020, page 5.
[72] ibid., at [30].
The third case was O’Keefe v Comcare [1998] FCA 603 (O’Keefe), where the Court held that a person’s vulnerability to an anxiety disorder in certain circumstances constituted a permanent impairment that incapacitated him from work.[73] The Court said that Mr O’Keefe’s ‘vulnerability is the “impairment” which results from his anxiety disorder’[74] and the question in issue was whether that vulnerability had become ‘permanent’ before 1988. The Tribunal, from whose decision the appeal emanated, found that Mr O’Keefe had since 1983 suffered a vulnerability to anxiety and related symptoms, which had fluctuated but continued for five years leading up to 1988 and this vulnerability amounted to a permanent impairment at that time. The Court held that it was ‘open on the evidence’ for the Tribunal to have so found.
[73] Applicant’s Submissions on Fluctuating Impairment dated 25 March 2020, page 6.
[74] O’Keefe v Comcare (1998) FCA 603. Referred to in the Applicant’s Submissions on Fluctuating Impairment dated 25 March 2020, pages 6-7.
The final case was Hocking and Australian Postal Corporation [2002] AATA 537 (Hocking), in which the Tribunal found that the applicant suffered from acute [back] pain ‘from time to time (at least 12 times a year) which causes some interference with his activities of daily living’. This injury persisted for 10 years, was unlikely to resolve and, accordingly, the applicant had a permanent impairment under the SRC Act.[75]
[75] Hocking and Australian Postal Corporation (2002) AAT 537 at [18]-[19]. Applicant’s Submissions on Fluctuating Impairment dated 25 March 2020, page 7.
In conclusion, Mr Spradau contended that his left wrist ‘failure is not present continuously’:[76]
it occurs in response to certain activities, including weight bearing activities of various forms that would normally be well within the range of an adult male. If the activity is avoided so is the wrist failure. It is akin to Mr Hocking’s intermittent back pain induced by certain activities and Mr O’Keefe’s intermittent anxiety attacks induced by certain kinds of personal interactions.
It is offensive to the Applicant to say that the effects of his wrist failure, its consequences and the avoidance measures he must take, produce only ‘minor’ interferences with the ADLs [activities of daily living] and do not rise to the level of ‘moderate’ or ‘major’.
[76] Applicant’s Submissions on Fluctuating Impairment dated 25 March 2020, pages 7-8.
Comcare
In its written submissions on the issue of fluctuating impairments, Comcare contended that the cases referred to by Mr Spradau ‘are not relevant to the present inquiry’ and ‘ought to be put to one side’ by the Tribunal.[77]
[77] ‘Comcare’s Submissions Regarding Fluctuating Impairment’, dated 21 April 2020, page 2.
In this respect, Comcare submitted that the issue in Asioty was whether a worker had suffered a compensable ‘disease’, not whether a ‘fluctuating impairment’ is a permanent one, or how to assess any such impairment under the Guide. In Mr Spradau’s case, Comcare noted that there is no dispute that he suffered an initial ‘injury’ under the SRC Act; the critical issue is ‘how to assess the applicant’s claimed impairment under the provisions of the approved Guide’.[78]
[78] ibid.
Additionally, the case of Drayton arose in a different statutory setting and did not relate to how a ‘fluctuating impairment’ should be assessed under the Guide.[79] Furthermore, in O’Keefe, the Federal Court held that it was open for the Tribunal to find that a vulnerability to a medical condition was an impairment that had become permanent, but it is not comparable to Mr Spradau’s case and also did not concern the assessment of a ‘fluctuating impairment’ under the Guide.[80] Finally, in Hocking, the Tribunal accepted that pain suffered from time to time interfered with the applicant’s activities of daily living and that the injury was permanent. However, Hocking is also not comparable to Mr Spradau’s case and did not address the assessment of a ‘fluctuating impairment’ under the Guide.[81]
[79] ibid.
[80] ibid.
[81] ibid.
Comcare submitted that it had sought to identify any cases ‘directly on point on the question of assessing a so-called “fluctuating impairment” under the provisions of the approved Guide’.[82] In Young and Comcare [2003] AATA 588 at [80], the Tribunal referred to an assertion as to the applicant suffering a ‘fluctuating impairment’. However, the Tribunal neither addressed a claim for permanent impairment nor considered the assessment of a ‘fluctuating impairment’ under the Guide. Comcare was otherwise unable to identify any authority directly on point and binding in the present application.[83]
[82] ibid., page 3.
[83] ibid.
Comcare contended that ‘assuming (without accepting) that a vulnerability – whether characterised as a “fluctuating impairment” or otherwise – can amount to a permanent impairment, it does not follow that a vulnerability to wrist subluxation[84] automatically translates into a compensable rating under Table 9.14’ of the Guide.[85] What must occur, it was submitted, is a consideration by a reliable medical assessor as to how such a vulnerability meets or does not meet the various criteria in Table 9.14.[86] Dr Journeaux was said to have undertaken such a task, taking into account evidence of Mr Spradau’s vulnerability to subluxation of the wrist, and concluded that the degree of whole person impairment could not be rated any higher than 2% under Tables 9.9.1a and 9.9.1b and 0% under Table 9.14 of the Guide. Accordingly, the Tribunal should prefer his evidence over that of Dr Eaton, who misapplied ‘clinical judgment’ under the Guide, and find that Mr Spradau’s degree of whole person impairment is no greater than 2%, despite the occasional inconvenience caused by his wrist condition.[87]
[84] Meaning a ‘partial dislocation’. See
[85] ‘Comcare’s Submissions on Fluctuating Impairment’, dated 21 April 2020, page 4.
[86] ibid., page 5.
[87] ibid.
In relation to other matters raised in Mr Spradau’s submissions on fluctuating impairment, Comcare said it disagreed with his commentary regarding the definition of ‘permanent’ under the SRC Act and asked the Tribunal to apply the relevant statutory definitions. Additionally, it was said that by contending that the 10% impairment rating under Table 9.14 of the Guide required ‘only’ a ‘moderate’ limitation in use of the extremity, Mr Spradau’s submissions implied the imposition of a lower threshold than that which was intended by the language of Table 9.14.[88] The better view was said by Comcare to be that the meaning of the word ‘moderate’ depends on the context in which it appears compared with other adjectives and adverbs used to qualify the matters set out in the assessment criteria.[89] In this regard, as observed by the High Court in Canute v Comcare (2006) 226 CLR 535 at [37], the SRC Act adopts a ‘whole person impairment’ approach in relation to a permanent impairment resulting from an ‘injury’. To this end, Mr Spradau’s use of phrases such as ‘requires only’ overlooks the fact that his ‘non-dominant left wrist is but one, comparatively minor, part of a whole person. The evidence shows that his left wrist condition mostly does not interfere with his function as a whole person’ [emphasis in original].[90]
[88] Ibid, page 6.
[89] Avondale Motors (Parts) Pty Ltd v FCT (1971) 45 ALJR 280 at 283 per Gibbs J.
[90] ‘Comcare’s Submissions Regarding Fluctuating Impairment’, dated 21 April 2020, page 4.
Finally, Comcare concluded that:[91]
The applicant has asserted that it is “offensive” to say that the effects of his wrist failure produce only “minor” interferences with his activities of daily living. That might be the applicant’s perception, and everyone is to some degree entitled to their own views. However, the applicant’s subjective perception ought not to be substituted for the will of Parliament in setting out objective assessment criteria which have been applied by a reliable expert (Dr Journeaux) in the circumstances.
That is particularly so where the assessment of Dr Journeaux is supported by other objective evidence, which shows that the applicant’s impairment overall causes no substantial limitation in the use of his left upper extremity for personal care.
The applicant has not established a 10% or greater degree of permanent impairment
resulting from his left wrist injury: cf s 24(7) of the Act.[91] ibid., page 7.
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: Pain
I 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: Suffering
I 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
At the hearing, Mr Spradau gave evidence in-person to the Tribunal.
Mr Spradau told the Tribunal that his impairment affects his capacity to type on a computer at work; if he undertakes this task for a ‘constant period’ of around 15 to 20 minutes, his left wrist will ‘just begin to ache’.[94] In response to this, Mr Spradau will, depending upon the urgency of the task at hand, ‘ignore it as long as I can’ or rest and then continue.[95]
[94] Transcript of Proceedings, page 17.
[95] ibid.
Mr Spradau was willing to demonstrate to the Tribunal how his wrist ‘comes out’ of the joint, but the Tribunal said it did not want to put Mr Spradau to any discomfort or pain, to which Mr Spradau replied that it was ‘not painful’ when he controlled this action, unlike when he was ‘lifting a weight’.[96] The Tribunal also noted that at least one of the medical experts, Dr Eaton had observed this ‘subluxation’ of the wrist by Mr Spradau and it confirmed that Mr Spradau did not need to demonstrate this at the hearing.[97]
[96] ibid., pages 17-18.
[97] ibid., page 18.
Counsel for Mr Spradau asked him how his wrist condition affects his capacity to lift with his left hand. Mr Spradau referred to an incident the day before the hearing when he was removing shopping bags out of the boot of his car and, upon lifting a bag of potatoes, said to be ‘four-and-a-half to five kilos’, his left wrist ‘simply came undone’; ‘it fails and the hand becomes almost useless for a period of time’.[98] Mr Spradau told the Tribunal that ‘there won’t be a day that it doesn’t occur in some degree’, which could happen when he is vacuuming, pulling on his trousers or picking up an object of some weight, depending on the angle of the wrist; when it ‘comes undone’ Mr Spradau keeps the wrist immobile for a period of 30 to 60 minutes before he can use it again.[99]
[98] ibid.
[99] ibid.
In relation to the criterion in Table 9.14 of the Guide that requires, among other criteria, a person to be unable to lift more than 4.5 kilograms in order to be assigned a 10% whole person impairment rating, Mr Spradau referred to the example of lifting the bag of potatoes and said ‘I have never put a weight in my hand to see what it goes to the point of failure, and the majority of the time that it does fail, it’s because I haven’t been paying attention…it’s been inadvertent movement’.[100]
[100] ibid., page 19.
In response to a question about how his wrist condition affects his capacity to dress, Mr Spradau referred to a situation arising after being examined by Dr Journeaux where Mr Spradau was ‘pulling on my trousers’ and ‘the hand came undone and the bottom three fingers became numb, and he observed me having to put my trousers on just using my index finger and thumb in that hand’.[101]
[101] ibid.
Mr Spradau told the Tribunal that he suffered a loss of digital dexterity being, in varying degrees of severity, one of the major criterion in Table 9.14 of the Guide. In this regard, Mr Spradau said that ‘I went through a testing process where I needed to touch all of my fingers with my thumb and I can do that quite readily, because my hand hasn’t failed at the moment, but if it fails, then I definitely can’t touch those three fingers and I would have trouble getting through to my index finger as well’.[102]
[102] ibid.
Mr Spradau was asked whether his wrist provides any other limitations in relation to his personal care, to which he said that ‘it’s a consideration with just about everything that I do’ and referred to his wrist coming ‘undone’ when he attempted to open the door in the Tribunal hearing room at the adjourned hearing in September 2019. In this way, Mr Spradau said ‘it’s just an everyday thing…everyday there’s something that’ll make it go’.[103]
[103] ibid.
Cross examination
Under cross-examination from Counsel for Comcare, Mr Spradau agreed that Dr Journeaux’s statement in his July 2018 report, that Mr Spradau ‘is able to perform all self-care and personal hygiene tasks without any difficulties’, was consistent with what Mr Spradau had told him.[104]
[104] ibid., page 21.
Mr Spradau told the Tribunal that he did not recall mentioning to Dr Eaton at his October 2017 assessment or to Dr Journeaux that he had difficulties with pulling up his trousers; the latter was said to have been able to be observed at the time but it ‘didn’t occur’ to Mr Spradau to raise this issue.[105]
[105] ibid., page 22.
Mr Spradau also said that he did not know whether he used the example of lifting a bag of potatoes with Dr Eaton to indicate his inability to lift objects of some weight, but would have used a different example; he also did not recall raising the example of lifting a pot. Mr Spradau could not recall what example he used with Dr Journeaux, but suggested their discussion centred on ‘pushing/pulling, doing domestic chores’.[106] In this regard, Mr Spradau said that ‘[i]n the main’ he completed these tasks, such as lawnmowing, vacuum cleaning and sweeping despite his left wrist condition.[107]
[106] ibid, pages 22-23.
[107] ibid., page 23.
Mr Spradau told the Tribunal that he did not recall whether Dr Eaton asked him to lift any weights at his assessment and said that Dr Journeaux did not ask him to do so, although he acknowledged they discussed his ability to lift a heavy bag. Mr Spradau was then taken to Dr Journeaux’s June 2019 report in which he referred to Mr Spradau’s ability to both lace shoes and join paper clips without difficulty and confirmed that these were tested by Dr Journeaux or agreed by Mr Spradau, noting that he does not usually wear laced shoes.[108] In this regard, Mr Spradau recalled discussing his ability to lift a suitcase, but could not recall the weight discussed at this assessment. Mr Spradau denied both that he could lift a 13 kilogram suitcase[109] and that his reference to a 4.5 kilogram weight was only a recent suggestion, rather than being specifically addressed previously.[110] Mr Spradau confirmed that his condition had remained essentially the same since 2012 and said he would have had other examples of his lifting ability from that time but, when it was put to Mr Spradau that if they were relevant he would have informed the medical experts upon their assessment of his condition, he said he could not recall these conversations or ‘ever speaking about a weight and the weight I could possibly lift or otherwise with either of the doctors’.[111] To this end, Mr Spradau said he could not recall speaking to Dr Journeaux about his ability to lift a specific weight, being 13 kilograms, despite this discussion being reported by Dr Journeaux in relation to a 13 kilogram suitcase, but said that ‘any particular weight…might undo it’.[112] Mr Spradau said further that he did not know ‘exactly the amount that the wrist will take’.[113]
[108] ibid.
[109] ibid., page 24.
[110] ibid., page 26.
[111] ibid.
[112] ibid.
[113] ibid., page 27.
Mr Spradau confirmed to the Tribunal that he completed annual ‘operational safety assessments’ required for his employment with the AFP. Counsel took Mr Spradau to his statement that ‘over the last few years I’ve avoided physically engaging in the training for fear of further damaging my wrist’ and put to him that that he in fact did have to physically engage in various activities in those assessments. Mr Spradau replied, ‘I had to be there, yes, and physically demonstrate that I can perform those duties’.[114] These included manoeuvring an opponent to the floor, demonstrating an upper body strike, front punch and use of elbows to strike an opponent, firearms training and arresting someone, including handcuffing.[115] Mr Spradau accepted that some of the activities required the use of his wrist.[116]
[114] ibid., page 30.
[115] ibid., pages 30-33.
[116] ibid., page 33.
In relation to his operational safety assessment in November 2017, Mr Spradau agreed that, in a completed declaration of health, he had confirmed that he had no medical or psychological reason which would place him at risk by participating in those assessments.[117] However, Mr Spradau said that he was only required to ‘demonstrate’ not participate in physical training. That is, Mr Spradau said he had to be able to demonstrate and do the activity.[118] These annual assessments were also completed by Mr Spradau in November 2018 and November 2019.[119]
[117] ibid., page 34.
[118] ibid.
[119] ibid., page 35.
Counsel for Comcare put to Mr Spradau that in 2010 he was still riding a pushbike, able to undertake all personal care without assistance, cooking and performing household duties and gardening without difficulty; he agreed with these propositions.
Additionally, Counsel put to Mr Spradau that in 2012 he did not require assistance with a range of activities of daily living, such as dressing, showering, toileting, shopping, cooking, cleaning, gardening and driving. Mr Spradau agreed with all of these propositions and, again, that his condition has been ‘static’ since 2012.[120] Furthermore, Mr Spradau agreed that, despite the occasional difficulty, he is still able to perform the operational requirements of his current role with the AFP and last year took a person into custody that required the application of force.[121] In this regard, Mr Spradau agreed that he would not put himself or the community at risk if he were unable to perform the operational requirements of a police officer.[122]
[120] ibid., page 38.
[121] ibid., pages 38-39.
[122] ibid., page 39.
Re-examination
By way of re-examination, Mr Spradau confirmed that the process of using a baton in the operational safety assessments is not done with the use of his left hand.[123] Mr Spradau also confirmed that he does not undertake any training in advance of the annual assessment. It was further confirmed that handcuffing is now done without force and a second hand would only be used to put the key in the lock.[124]
[123] ibid., page 40.
[124] ibid., page 40.
Mr Spradau referred to the incident last year at Parliament House, which was outlined in his written statement, and told the Tribunal that he ‘wasn’t the arresting officer, I wasn’t the person who actually took her into custody. I was one of six people. The uniform members were the people who took her into custody.’[125] Mr Spradau further said that the right hand of the woman arrested ‘came free’ and he ‘grabbed’ that hand with his right hand and ‘held that in place until the other officer came across, and then took over from me’. In this way, Mr Spradau agreed that he conducted a ‘handover’ of the person.[126]
[125] ibid., page 41.
[126] ibid., page 42.
Mr Spradau was asked to describe how his left wrist condition affects his dressing and its speed. Mr Spradau answered relevantly as follows:[127]
it’s a thoughtful process. So when things - when the wrist fails, and I use the example when I was with the doctor, that could have prolonged or made that dressing 20 or 30 seconds longer; but if it doesn’t undo itself or it doesn’t have a problem, then dressing would be, in my mind, in a normal manner and at a normal pace. I don’t pull my boots on any more with my left hand. I put my socks primarily on with my right hand. My belt, when I’m adjusting it, is obviously using my right hand. When I put the buttons on, using - dressing and that sort of stuff, it’s normal. I do a tie up every day. It’s rare, but on occasions when I am putting on a tie, sometimes it will pinch me, but for no particular reason…I can’t give you a definitive: am I dressing fast or slow. I think if the hand fails and I’m not thoughtful, then it will take longer; but generally speaking I’m quite thoughtful when I’m getting dressed so as I don’t cause any issues with it...
[127] ibid., page 45.
Following re-examination, the Tribunal asked Mr Spradau some further questions regarding dressing and he said that ‘[i]n the main’ he dressed normally but paid attention to what he was doing and he agreed this was done with his usual speed albeit adopting a thoughtful approach.[128]
Medical evidence
[128] ibid., page 46.
Dr Garth Eaton – Occupational Physician
At the request of Mr Spradau’s solicitors, he was interviewed and examined by Dr Eaton on 10 October 2017.[129] The subsequent report from Dr Eaton dated 25 October 2017 relevantly noted that:[130]
[129] Exhibit 1, T11, page 28.
[130] ibid., pages 33-37.
Mr Spradau continues to experience pain in the surgical scar and finds increasing wrist pain when riding his pushbike. He finds if he lifts something which is too heavy, his wrist subluxes and he experiences numbness of the lateral three fingers of the left hand and is unable to extend them. He finds when shopping if he picks up a heavy bag he experiences subluxation of the wrist and then drops the bag.
He said he is unable to do chin-ups. He experiences increased pain with pressure on the wrist and while he can lift he cannot take the pressure when lifting rearward. He said he is ambidextrous and writes with his right hand. Mr Spradau said that he uses a shovel with his left hand and he is very conscious of it hitting an object, rock etc. he said he has to be careful with gardening and mowing activities in general. He said lifting is his biggest problem. He is unable to wear a watch on the left wrist which remained swollen and mildly deformed. There are no secondary neck or shoulder symptoms.
He is able to drive using his left hand and wrist.
…
Examination
…
Mr Spradau was a pleasant cooperative person who presented himself as being genuine and straightforward and who did not exhibit any pain behaviour.
…
Upper limb examination revealed that reflexes were difficult to elicit. Sensation and power appeared to be normal. Mr Spradau was able to subluxes his left wrist which was clearly very unstable.
He was able to move his fingers normally however grip strength was reduced at 30 kg on the left compared to 38.1 kg on the right Mr Spradau said he was ambidextrous but was right-handed for various activities including handwriting.
The scar of the surgery to the left wrist was evident on the volar aspect. Wrist flexion was slightly reduced to 40° however extension appeared to be normal. There was a longitudinal depression of the volar aspect of the left wrist and the styloid process at the left wrist was prominent. There was a prominent 'lump'/swelling the base of the right thumb.
…
Permanent Impairment
…
Mr Spradau has sustained permanent impairment to his left wrist as a result of his left wrist injuries. His left wrist joint subluxes which causes temporary neural irritation and motor and sensory effects on lateral three fingers when this occurs. Mr Spradau is able to passively cause this to occur but it can also occur with heavy lifting and other activities which place strain on the left wrist joint. The subluxation of the wrist joint is directly related to the initial fracture, the open reduction and internal fixation with plate and screws and subsequent removal of plate and screws rendering the joint to be markedly unstable.
Using table 9.9.1a Wrist flexion/extension and table 9.9.1b, Radial and ulnar deviation of wrist joint, Mr Spradau would have sustained 2% whole person impairment. This table is inadequate for permanent impairment assessment of his left wrist injury.
Using table 9.14 Upper Extremity Function Mr Spradau would qualify for 10% whole person impairment for the non-dominant extremity impairment. However Mr Spradau reports he is ambidextrous suggesting there is no dominant extremity. I do not believe this table adequately covers the left wrist injury sustained by him. Consequently I believe that the AMA 5 Guides should be used.
According to AMA 5, page 51 Table 16 - 22 Mr Spradau has sustained 20% wrist joint impairment. According to Table 16-18, Page 499 –Maximum Impairment Values for the Digits, Hand, Wrist, Elbow, and Shoulder Due to Disorders of Specific Joints or Units, Mr Spradau has sustained 24% whole person impairment [emphasis in original].
In December 2018, following Mr Spradau’s application for review by the Tribunal, Dr Eaton was asked by Mr Spradau’s solicitors to provide further detail regarding his use of the Tables in the Guide and the application of AMA5.[131] Dr Eaton’s supplementary report dated 30 December 2018, relevantly stated that:[132]
The main reason that I believe Table 9.9.1 a Wrist flexion/extension and Table 9.91 [sic] b, Radial and ulnar deviation wrist joint is inadequate is because of the clinically demonstrated subluxation of the left wrist joint which causes significant symptoms as indicated in my report. The subluxation is readily demonstrated and occurs when performing various activities including lifting using his left wrist and hand.
Table 9.14 Upper extremity function includes ratings for non-dominant extremity, dominant extremity and both extremities. In the case of Mr Spradau the left upper extremity only has been injured, Mr Spradau reports that he is ambidextrous and writes with his right hand. He still tries to do most physical activities including lifting with his left hand. I agree that whether Mr Spradau is right or left hand dominant is of no significance in arriving at the 10 % rating. The 10% rating was established using clinical judgement and Mr Spradau’s reports of the subluxation occurring with lifting of relatively low weights and other physical activities.
As I believed Mr Spradau’s left wrist injury was severe and at times quite disabling, I thought it appropriate to look at AMA 5 to obtain a rating of permanent impairment. According to AMA 5, Page 501 Table 16-22 Joint Impairment from Persistent Subluxation or Dislocation 20 % joint impairment applies. According to Table 16-18, Page 499, Maximum Impairment Values for the Digits, Hand, Wrist, Elbow and Shoulder Due to Disorders of Specific Joints or Units 24 % whole person impairment would apply. In my opinion this gives a fairer rating for Mr Spradau’s left wrist condition using clinical judgement and consideration of the associated disability [emphasis in original].
[131] Exhibit 2, ST46.1, pages 176-177.
[132] Exhibit 2, ST46, pages 174-175.
Following a request in April 2019 from Mr Spradau’s solicitors for detail regarding his grip strength, Dr Eaton provided a further supplementary report dated 23 April 2019[133] which relevantly stated that:[134]
At the consultation on 10 October 2017 I measured Mr Spradau’s grip strength with a dynometer and found he had 38.1 kg on the right compared to 30 kg on the left. He said he is ambidextrous but was right handed for various activities including handwriting. I only recorded the one reading on each side.
According to AMA 5 Table 16-32 Average Strength of Grip by Age in 100 Subjects, a normal level for a 52 year old male is 45.9 kg for the dominant hand and 43.5 kg for the non-dominant hand.
On applying Table 9.14 of the Comcare Guide, Upper Extremity Function I opined, on the basis of the history, clinical examination and clinical judgement that Mr Spradau had moderate loss of digital dexterity of the left hand, would not be able to lift more than 4.5 kg without the strong possibility of subluxation occurring and would have potential difficulty with dressing and undressing. This is related to the episodes of wrist subluxation which occurs with various activities placing strain on the joint. Handwriting is only done with the right hand. I am not aware of difficulties with shoelaces or paperclips.
[133] Exhibit 2, ST48, pages 187-188; ST48.1, pages 189-190.
[134] Exhibit 2, ST48, pages 187-188.
After a further request in September 2019 from Mr Spradau’s solicitors for additional detail regarding his grip strength, Dr Eaton provided another supplementary report dated 25 September 2019, which relevantly stated that:[135]
It was established that grip strength on the dominant right was 38.1 kg and 30 kg on the non-dominant left side. Mr Spradau uses his right hand when handwriting and said that he is ambidextrous for various other activities. It is reasonable to classify him as right hand dominant for the purpose of this assessment.
…
According to Table 16-34 [of AMA5] Upper Extremity Joint Impairment Due to Loss of Grip or Pinch Strength, a percentage strength loss index of 31 equates to 20% upper extremity impairment.
This equates to 12% whole person impairment according to table 16.3 Conversion of the Upper Extremity Impairment to Impairment of the Whole Person. Page 439 of AMA 5. [emphasis in original]
[135] Exhibit 2, ST50, pages 204-205; ST50.1, page 206.
Dr Simon Journeaux – Orthopaedic Surgeon
At the request of Comcare for the purpose of its consideration of Mr Spradau’s claim for permanent impairment and non-economic loss, Dr Journeaux assessed Mr Spradau’s left wrist condition on 3 July 2018.[136] The report from Dr Journeaux dated 13 July 2018, relevantly stated that:[137]
[136] Exhibit 1, T17, page 59; T17.1 pages 68-73.
[137] ibid., pages 59-67.
Current Symptomatology:
In respect of his left wrist, Mr Spradau described intermittent pain which occurs on a daily basis. The pain can last an hour or so when he gets it and can occur on multiple occasions. The pain is generally dull in character and around 5/10 on a visual analogue scale. Symptoms are aggravated by all types of activities of daily living including running a pushbike, gardening, mowing and other chores involving gripping and pushing and pulling. He can get an aggravation at work with prolonged activities, such as typing, gets relief from activity modification and rest and use of Celebrex, although this drug is primarily used for his osteoarthritic right knee.
Mr Spradau also complained of deformity, occasional swelling which occurs several times per week and a feeling that his wrist becomes “undone” and he has to effectively click it back into position.
…
Effects on Activities of Daily Living and Domestic Duties:
Mr Spradau is able to perform all self-care and personal hygiene tasks without any difficulties. In terms of domestic activities of daily living, he has some difficulty with heavier or more repetitive chores which involve gripping, pushing and pulling.
…
CLINICAL EXAMINATION:
…
On objective testing, he had normal pinch grip. He had weakness of power grip, as measured on the Jamar dynamometer with 47 kg force on the right and 35 kg force on the left on average.
…
Examination of the left wrist revealed some deformity with prominence of the ulnar styloid and what would appear to be a slight volar displacement of the radius with some minor shortening.
On firm palpation, there was tenderness related to the radiocarpal joint. I noted a scar consistent with prior surgery. Active range of movement revealed very minor restriction of movement as compared to the right side in all directions with radial deviation with overpressure causing pain. The restriction was by a few degrees only. I noted full range of movement of the fingers and thumb.
…
SUMMARY AND ASSESSMENT:
…
The condition is permanent and will not resolve.
…
The percentage of whole-person impairment would be assessed with reference to Tables 9.9.1a and 9.9.1b in respect of range of motion. 0% whole person is applicable. In view of the fact he has secondary osteoarthritis an assessment of whole person impairment would be considered under Table 9.14. 0% whole person impairment is applicable.
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 neither
Neither. 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”.
It was not until a witness statement from Mr Spradau was effectively required by Comcare that he mentioned difficulty lifting an object of a particular weight, which was said to be 4.5 kilograms, noting that an inability to lift 4.5 kilograms is one of the minor criteria for a 10% impairment rating. Mr Spradau also made reference in oral evidence to more recent difficulties with shopping bags and bags of potatoes weighing approximately 4 to 4.5 kilograms. However, while Mr Spradau acknowledged in cross-examination that he had historical examples of these types of difficulties, on the evidence before the Tribunal, he did not report them to either medical expert who assessed him for the purpose of his application. For example, Mr Spradau was asked by Dr Journeaux about his ability to lift a 13 kilogram suitcase and he reportedly said that he could do so with some difficulty; he did not report any previous difficulties with any object weighing less than 13 kilograms, or more specifically, any object weighing approximately 4 to 4.5 kilograms. In this particular regard, the evidence of Mr Spradau was less than convincing and had the appearance of a history evolving over time to support his claim rather than reflecting the reality of his condition.
For example, in his witness statement, Mr Spradau said that he was ‘orchestrating an arrest’ when his left wrist ‘came apart when I was grappling with an offender’. However, in cross-examination Mr Spradau said this was not an arrest, but that he took the person ‘into custody’, and then in re-examination Mr Spradau changed his position again and agreed that he was assisting in a handover of the person following that person being taken into custody. Again, the Tribunal notes that its finding regarding the weight attributed to Mr Spradau’s evidence does not seek to diminish Mr Spradau’s condition or its effect on his life, but does, in its view, demonstrate an inability for the Tribunal to accept in totality that evidence, especially with regard to the requisite criteria in Table 9.14 of the Guide.
Assessment of Mr Spradau’s degree of whole person impairment
Following the receipt of the expert opinions of Dr Eaton and Dr Journeaux on the morning of the hearing in the form of the document titled ‘Schedule of Concurrent Evidence’, the issue between the parties narrowed to one of Mr Spradau’s degree of whole person impairment under Table 9.14 of the Guide.
That is, while the medical experts agreed that Mr Spradau’s left wrist condition could be assigned a 2% whole person impairment under Tables 9.9.1a and 9.9.1b of the Guide (assessing impairments to range of motion of the wrists), they also agreed that Mr Spradau’s impairment was not adequately assessed under these particular tables of the Guide. As a result, Table 9.14 of the Guide (regarding upper extremity function) was the appropriate table to assess Mr Spradau’s whole person impairment due to his left wrist condition. In this regard, the medical experts also effectively agreed that Mr Spradau’s impairment is of a kind that can be assessed in accordance with the Guide and recourse was not required to the AMA5 to seek to assign a degree of whole person impairment for Mr Spradau in relation to his application before the Tribunal.
Dr Eaton’s evidence
As stated above, Dr Eaton assessed Mr Spradau’s degree of impairment as 10% under Table 9.14 of the Guide.[177] In Dr Eaton’s initial report following his one assessment of Mr Spradau in October 2017, he stated that Mr Spradau’s wrist ‘subluxes’, causing ‘temporary neural irritation and motor and sensory effects on lateral three fingers when this occurs’, noting that Mr Spradau can cause this to occur but ‘it can also occur with heavy lifting and other activities which place strain on the left wrist joint’. In this regard, Dr Eaton reported that when Mr Spradau ‘picks up a heavy bag’ he experiences subluxation of the wrist, but no weight was ascribed to this bag or testing done in relation to Mr Spradau’s lifting ability.[178] Additionally, Dr Eaton subsequently noted that Mr Spradau was ‘able to move his fingers normally’.[179] However, Dr Eaton concludes that Mr Spradau ‘would qualify for 10% whole person impairment for the non-dominant extremity impairment’, while noting that Mr Spradau reported that he was ambidextrous, and states that the Guide is inadequate and AMA5 should be used.[180] Dr Eaton did not refer in his October 2017 report to the particular criteria in Table 9.14 of the Guide that Mr Spradau satisfied in order for him to assign a 10% impairment rating to Mr Spradau. In relation to Dr Eaton’s resort to the AMA5 in his October 2017 report, he ascribed a whole person impairment of 24%. This rating was plainly incorrect on all of the evidence and demonstrates a misapplication of that guide, but also poor methodology in his assessment processes. For example, it was not until the agreed concurrent evidence with Dr Journeaux, that Dr Eaton revised this opinion and stated that Mr Spradau’s maximum whole person impairment under the AMA5 was in fact 7%, not 24%.
[177] Exhibit 1, T11, page 37; Exhibit 4.
[178] Exhibit 1, T11, page 33.
[179] ibid., page 35.
[180] Exhibit 1, T11, page 37.
In Dr Eaton’s supplementary medical reports from December 2018 and April 2019, he refers to using ‘clinical judgment’, among other things, to determine that Mr Spradau’s left wrist condition could be rated as being a 10% whole person impairment. For completeness, the Tribunal notes that in Dr Eaton’s report dated 30 December 2018, he stated that ‘[t]he 10% rating was established using clinical judgment and Mr Spradau’s reports of the subluxation occurring with lifting of relatively low weights and other physical activities’.[181] While acknowledging Dr Eaton’s specialist qualifications and skills, the Tribunal cannot be satisfied on the basis of this report that Dr Eaton assessed Mr Spradau against the specific criteria in Table 9.14 of the Guide; there is no reference to an assessment or testing of Mr Spradau against each individual criterion. For example, ‘relatively low weights’ is undefined by Dr Eaton and the Tribunal is not satisfied that he extracted a history from Mr Spradau that specifically identified whether he ‘cannot lift more than’ either 4.5 or 13 kilograms, the former being a minor criterion for a 10% rating under the Guide; such an opinion was not proffered by Dr Eaton until his third report in April 2019. It read: ‘would not be able to lift more than 4.5 kg without the strong possibility of subluxation occurring’.[182] This assessment does not, in the Tribunal’s opinion, rise to the level required by Table 9.14, whereby a person ‘cannot lift more than 4.5 kilograms’ to satisfy this minor criterion for a 10% impairment rating. Based on Dr Eaton’s reports, the ability for Mr Spradau to lift any specific amount of weight was not tested or relevant information taken by him as part of a history from Mr Spradau.
[181] Exhibit 2, ST46, page 174.
[182] Exhibit 2, ST48, page 187.
More broadly, it was not until Dr Eaton’s third medical report that he gave a more fulsome account of his assignment of a 10% impairment rating for Mr Spradau against the criteria of Table 9.14. Dr Eaton said his conclusion was based on ‘the history, clinical examination and clinical judgement’. Dr Eaton reported that Mr Spradau had ‘moderate loss of digital dexterity’, thereby fulfilling the major criteria for a 10% rating. In addition, Dr Eaton said Mr Spradau ‘would have potential difficulty with dressing and undressing’. The relevant criterion is that a person ‘dresses slowly unassisted’. The Tribunal is not satisfied that a ‘potential difficulty’ with dressing equates to dressing ‘slowly unassisted’, as required to meet this criterion in Table 9.14. For example, Mr Spradau told the Tribunal under cross-examination that while dressing is a thoughtful process, it is made 20 to 30 seconds longer if his left wrist ‘fails’; it is otherwise a normal process and there is no delay. The Tribunal does not accept that this amounts to Mr Spradau ‘dressing slowly unassisted’ as required to meet one minor criterion in Table 9.14 for a 10% whole person impairment. Dr Eaton notes in this report that Mr Spradau writes with his right hand and concedes that he is ‘not aware of difficulties with shoelaces or paperclips’.[183] Having regard to all of Dr Eaton’s reports, although he refers to his ‘clinical examination’ of Mr Spradau, it is unclear from his reports whether he assessed Mr Spradau’s ability to do any of the tasks set out in the minor criteria in order to be assigned a 10% impairment rating. For example, in his April 2019 report, Dr Eaton states that: ‘I am not aware of difficulties with shoelaces or paperclips’.[184] Although it is correct on the evidence that Mr Spradau has no such problems, it appears from this report that Dr Eaton did not conduct any testing regarding these two minor criteria in Table 9.14 to arrive at this conclusion and, it could even be implied that he did not ask Mr Spradau about these matters. In relation to the use of ‘clinical judgment’ by Dr Eaton, on its most positive interpretation, it appears to the Tribunal that he has used this term in place of an assessment of Mr Spradau’s level of permanent impairment against the relevant criteria in Table 9.14. In this way, although a physician undoubtedly uses their clinical judgment in assisting to make such assessments against the relevant criteria in the Guide, the notion of using clinical judgment as the determinant of a person’s impairment is foreign to the Guide. It is not until the Guide and the AMA5 are deemed inadequate to an assessment of a person’s permanent impairment that clinical judgment can be utilised to determine the degree of whole person impairment.
[183] Exhibit 2, ST48, pages 187-188.
[184] ibid., page 188.
In written concurrent evidence, Dr Eaton stated that Mr Spradau had ‘moderate limitations in use of extremity for personal care’, thereby meeting the major criteria for 10% whole person impairment, and definitively stated that he ‘cannot lift more than 4.5Kg and has to dress slowly unassisted’, thereby meeting two minor criteria to be assigned a 10% impairment rating under Table 9.14. It is unclear on what basis Dr Eaton’s evidence shifted between his medical reports to his concurrent evidence to become more conclusive in terms of Mr Spradau meeting these two specified minor criteria. In the circumstances, the Tribunal is not satisfied that Dr Eaton sufficiently applied the assessment criteria in the Guide in order to make his assessment of Mr Spradau a reliable basis on which it can make findings of fact in this proceeding in relation to his whole person impairment.
Dr Journeaux’s evidence
Dr Journeaux demonstrates a competent and methodical application of the criteria in Table 9.14 to the medical evidence and his assessment of Mr Spradau. Dr Journeaux’s evidence is preferred by the Tribunal and it follows that Mr Spradau’s application cannot succeed.
Dr Journeaux assigned Mr Spradau a 0% whole person impairment rating under Table 9.14 of the Guide. In assessing Mr Spradau against the criteria of Table 9.14, Dr Journeaux said that Mr Spradau has ‘normal digital dexterity’, but with ‘minor limitation in use of the left upper extremity for personal care’.[185] In this way, Dr Journeaux opined that Mr Spradau fulfils one major criterion in Table 9.14. However, Mr Spradau does not meet two required minor criteria in Table 9.14 in the Guide, because the criterion of being unable to write two A4 pages is not applicable as he is right handed for writing and Mr Spradau ‘has no difficulty tying up shoelaces and is able to join paper clips’; and he would have difficulty lifting 13 kilograms and avoids it, although this lifting ability was not formally tested.[186] In relation to the A4 page criterion in Table 9.14, Mr Spradau submitted to the Tribunal that it should substitute this test for his claimed difficulty with typing on a computer given it is more contemporaneous and relevant to his employment. However, there was no evidence led by Mr Spradau regarding this claimed typing difficulty and, more importantly, the Tribunal cannot substitute wording or activities in criterion that has ultimately been agreed by the Parliament. To this end, while handwriting may now be somewhat of an outdated practice in the modern workplace, the medical basis for the inclusion of this handwriting task criterion in the Guide likely goes beyond a person’s workplace practices and seeks to assess their ability to use the relevant extremity in that manner because it directly tests the level of impairment in a way other tests may not.
[185] Exhibit 2, ST49, page 195.
[186] Exhibit 2, ST49, page 195; ST52, page 216.
Mr Spradau satisfied one major criterion and two minor criteria for a rating of 0% in Table 9.14 of the Guide, however this is the highest rating Mr Spradau’s permanent impairment can be assigned under Table 9.14. The Tribunal accepts that Mr Spradau’s condition is, as Dr Journeaux stated, ‘at the minor end of the scale in terms of severity’ for wrist fractures.[187] Dr Journeaux further noted that this was ‘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’.[188]
[187] Exhibit 2, ST47, page 180.
[188] Exhibit 2, ST47, page 180.
Furthermore, Dr Journeaux in his July 2018 report stated, following a history taken from Mr Spradau, that he ‘is able to perform all self-care and personal hygiene tasks without any difficulties’.[189] Mr Spradau also told the Tribunal that this summation was correct.[190] Dr Journeaux further noted that Mr Spradau had ‘some difficulty with heavier or more repetitive chores which involve gripping, pushing and pulling’.[191] Following his clinical examination, Dr Journeaux reported that he ‘noted full range of movement of the fingers’.[192] Recalling that no limitations in use of extremity for personal use and normal digital dexterity are the two major criteria for the assignment of a 0% impairment rating in Table 9.14, Mr Spradau met both of these criteria. Accordingly, Dr Journeaux concluded that ‘0% whole person impairment is applicable’[193] to Mr Spradau’s left wrist condition.
[189] Exhibit 1, T17, page 61.
[190] Transcript of Proceedings, page 21.
[191] ibid.
[192] Exhibit 1, T17, page 62.
[193] ibid., page 66.
In February 2019, Dr Journeaux confirmed his view that Mr Spradau ‘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’,[194] where two criteria are required to be met, accordingly, he ‘would not satisfy the criteria in this table’, being the criteria for a 3% impairment rating for his non-dominant extremity.[195] Dr Journeaux again reported that he did not identify any loss of digital dexterity and importantly, on the history given by Mr Spradau, there were ‘no limitations in the use of his upper limb extremity for personal care’.[196] The Tribunal notes that Dr Journeaux also commented as follows in relation to the October 2017 report of Dr Eaton: ‘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 non-dominant extremity’.[197]
[194] Exhibit 2, DT47, page 181. Note that 30 pounds equates to approximately 13 kilograms and Dr Journeaux subsequently corrected his use of the unit of measurement ‘pounds’ which, pursuant to the current version of the Guide, is now ‘kilograms’. See Exhibit 2, ST49, page 198.
[195] Exhibit 2, ST47, page 181.
[196] ibid.
[197] ibid., page 182.
In June 2019, Dr Journeaux re-assessed Mr Spradau and re-questioned him ‘in order to confirm the previous historical details related to the injury of 16 October 1997 and beyond’. Mr Spradau reportedly ‘agreed with the historical details contained in my report’ of July 2018 and it was again stated that he ‘is able to perform all self-care and personal hygiene tasks without difficulties’, although he uses his right hand for toileting due to his left wrist otherwise being in an awkward position and causing ‘intolerable pain’.[198] At the very highest, and necessarily assessing Mr Spradau’s left wrist condition against the criteria of Table 9.14, the Tribunal accepts that Mr Spradau can be said to experience ‘minor limitations’ in use of his left hand for personal care, being a major criterion for a 3% impairment rating; the Tribunal is not satisfied however that Mr Spradau’s condition amounts to ‘moderate limitations’ in use of that extremity for personal care under the Table, being a major criterion for the assignment of a 10% impairment rating. This latter criterion was not met on the evidence before the Tribunal. Following his clinical examination, Dr Journeaux noted that Mr Spradau:[199]
was able to lace shoes with no difficulty. He was able to join paperclips without any difficulty. I did not have a weight that was in excess of 13 kg to formally test. I discussed this with him and he would have difficulty lifting a suitcase which weighed approximately 13 kg unless his wrist was held in a neutral position. It would more likely than not cause him pain.
[198] Exhibit 2, ST49, page 193.
[199] ibid.
This assessment indicates that Dr Journeaux tested or at least asked Mr Spradau about his ability to lace shoes and join paperclips, and also asked him about his ability to lift an object of a specific weight. Dr Journeaux again confirmed that Mr Spradau ‘has normal digital dexterity’, but on his re-assessment he considered that Mr Spradau ‘does have minor limitation in use of the left upper extremity for personal care’,[200] although he did not meet two minor criteria in Table 9.14 of the Guide. In this report, rather than again assigning Mr Spradau an impairment rating of 0% under Table 9.14 of the Guide, Dr Journeaux opined that because Mr Spradau did not meet two of the minor criteria he is ‘unable to be assessed’ and ‘[i]t would therefore be appropriate to defer to AMA 5’.[201] This was plainly incorrect and, in a subsequent report in January 2020, Dr Journeaux revised his statement that the AMA5 should be used and noted that he agreed, ‘having reviewed my findings, that Mr Spradau can be assessed under Table 9.14 and would be assessed as 0%’.[202] This was based on Dr Journeaux’s assessment that Mr Spradau met the requisite one major criterion, being normal digital dexterity, and two minor criteria, being able to lace shoes easily and join paper clips without difficulty, for the assignment of a 0% whole person impairment under Table 9.14 of the Guide. Based on Dr Journeaux’s assessment, Mr Spradau’s left wrist condition could not be assigned a higher degree of impairment.
[200] ibid., page 195.
[201] ibid.
[202] Exhibit 2, ST52, page 216.
Finally, in his concurrent evidence given to the Tribunal in the form of the document titled ‘Schedule of Concurrent Evidence’, Dr Journeaux confirmed his assessment that Mr Spradau could not be assessed as having a permanent impairment with a degree of whole person impairment above 0% under the Guide. Dr Journeaux said he ‘did not believe the Applicant fulfilled any of the major criteria for 3% WPI apart from the potential to not being able to lift 13 kg. Therefore Dr Journeaux opines the Applicant fits the criteria for 0% WPI for Table 9.14’.[203]
[203] Exhibit 4, page 4.
Dr Journeaux assessed Mr Spradau’s ability to perform certain activities required in Table 9.14 of the Guide, whereas the Tribunal finds that Dr Eaton drew conclusions about Mr Spradau’s ability based on ‘clinical judgment’, the history provided by Mr Spradau and without performing the relevant tests or seemingly asking the relevant questions to conclusively determine his level of permanent impairment against the criteria in the Table. In evaluating which expert is the most reliable and the one on whose evidence the Tribunal can rely and should be preferred, it should be the physician who has used a more thorough method and assessed impairment against the relevant criteria following such assessment. In this proceeding, that is the evidence of Dr Journeaux. By way of further example, Dr Journeaux required Mr Spradau to perform a grip strength test three times on each hand, whereas Dr Eaton only required this to be performed once, the former being the manner of assessment stipulated by the AMA5, which produces a more objective measurement of the impairment in relation to this test.[204] As Comcare submitted, this demonstrates, at least incidentally, Dr Journeaux’s better and more thorough medical methodology to assess Mr Spradau against the relevant criteria in this proceeding.[205] More relevantly, it is plain from Dr Journeaux’s reports that he discussed the pertinent issues with Mr Spradau with some specificity, whereas Dr Eaton talked to him about lifting a shopping bag, with no weight measurement identified. In this way, Dr Eaton’s evidence suggests an element of deductive reasoning or hypothesising rather than making an informed assessment of the medical evidence against each of the criteria in Table 9.14 of the Guide to arrive at a rating for Mr Spradau’s whole person impairment.
[204] AMA5, page 508.
[205] Transcript of Proceedings, page 64.
The criteria in Table 9.14 of the Guide are clear and unambiguous. In this context, no beneficial construction is required. Accordingly, the terms of the criteria in Table 9.14 must be applied to the circumstances of Mr Spradau’s left wrist condition. For the reasons set out above, the Tribunal has found that Mr Spradau’s permanent impairment does not meet the 10% threshold required for Comcare to be liable to pay him compensation pursuant to section 24 of the SRC Act.
Fluctuating impairment
As the Tribunal has found, Mr Spradau suffered an ‘injury’, which has led to a ‘permanent impairment’ under the SRC Act. Such a conclusion was uncontroversial in the proceeding. There arose, however, the question of whether Mr Spradau’s ‘fluctuating impairment’, being the vulnerability of suffering a subluxation of his wrist, could be considered a permanent impairment. With respect, this is of little consequence to the ultimate result and the Tribunal accepts Comcare’s submissions on this issue. Plainly, Mr Spradau’s impairment can occur from time to time; it is not constant. This does not diminish the nature of Mr Spradau’s condition and the Tribunal’s acceptance of its permanency.
However, it does not follow that a vulnerability or susceptibility to wrist subluxation, which has been found on the evidence to be a permanent impairment, translates into a compensable rating under the applicable table in the Guide. The central question for resolution was whether Mr Spradau’s degree of whole person impairment, due to his left wrist condition, rises to a level at or above 10% in Table 9.14 of the Guide. The Tribunal has found that it does not.
CONCLUSION
For the above reasons, the Tribunal prefers the evidence of Dr Journeaux in this proceeding, including because it is clear to the Tribunal that he undertook a thorough assessment of Mr Spradau against the requisite criteria in the Guide, specifically Tables 9.9.1a, 9.9.1b and 9.14, to arrive at his assignment of a whole person impairment for Mr Spradau of 2% under the first two tables and 0% under the last table.
The Tribunal finds that Mr Spradau’s left wrist condition should be assigned a 2% whole person impairment rating under Tables 9.9.1a and 9.9.1b of the Guide and a 0% whole person impairment rating under Table 9.14 of the Guide. On the evidence, Mr Spradau’s left wrist condition, which has resulted in a permanent impairment, does not rise higher than a 2% whole person impairment under the Guide. In relation to Table 9.14, and for the avoidance of doubt, at its highest, the Tribunal is satisfied that Mr Spradau has a minor loss of digital dexterity, which is one of the major criteria for a 3% whole person impairment rating, but it does not find that he meets two required minor criteria to be assigned such a rating; on the evidence, he only meets one minor criterion for a 3% impairment rating, being an inability to lift more than 13 kilograms. Having found that Mr Spradau does not meet the required criteria for the assignment of a 3% impairment rating under the Guide, it follows that the Tribunal finds that Mr Spradau does not meet the requisite criteria for a 10% rating such as to attract compensation from Comcare pursuant to the SRC Act. Mr Spradau does, however, meet the relevant number of criteria for a 0% impairment rating, being no limitations in the use of the extremity for personal care and being able to lace shoes easily and join paperclips without difficulty.
Based on the Tribunal’s findings, Mr Spradau’s degree of impairment does not meet the 10% threshold for the payment of compensation under subsection 24(7) of the SRC Act. As a result, the Tribunal is not required to consider Mr Spradau’s claim for non-economic loss in relation to his left wrist condition pursuant to section 27 of the SRC Act.
While this decision will undoubtedly be disappointing for Mr Spradau, the Tribunal must apply the terms of the Guide as made by Comcare, approved by the Minister and agreed by the Parliament. The SRC Act expressly states that the Guide is binding on the Tribunal; it must therefore apply the criteria in the relevant table or tables of the Guide in assessing a person’s degree of permanent impairment. Accordingly, the Tribunal cannot substitute its own views or value judgment in relation to the degree of permanent impairment a person suffers as a result of an injury under the SRC Act. Here, there was insufficient evidence that Mr Spradau’s impairment reached the requisite 10% whole person impairment for Comcare to be liable to pay him compensation for that impairment. While Mr Spradau undoubtedly suffers difficulties with his left wrist at various times, which can be quite painful, especially when it involuntarily subluxes, ‘fails’ or ‘comes apart’, this does not, on the evidence available to the Tribunal, satisfy the relevant criteria in Table 9.14 to be found to amount to Mr Spradau suffering a 10% whole person impairment.
DECISION
The Tribunal affirms the decision under review, pursuant to subsection 43(1)(a) of the AAT Act, denying Mr Spradau’s claim for permanent impairment and non-economic loss under sections 24 and 27 of the SRC Act.
I certify that the preceding 136 (one hundred and thirty-six) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.
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Associate
Dated: 1 July 2020
Date(s) of hearing: 10 March 2020 Date final submissions received: 4 May 2020 Counsel for Applicant: Mr Alan Anforth Solicitors for Applicant: Mr David Healey, David Healey Solicitors Counsel for Respondent: Mr Peter Woulfe
Solicitors for Respondent: Mr Adrian Hearne, HWL Ebsworth
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