Taylor and Comcare - [2000] AATA 988

DECISION AND REASONS FOR DECISION [2000] AATA 988

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V99/937

GENERAL ADMINISTRATIVE DIVISION           )
           Re      WAYNE TAYLOR
  Applicant
           And     COMCARE
  Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member Mr D Elsum, AO, Member Miss E A Shanahan, Member

Date14 November 2000
PlaceMelbourne

Decision        1. The Tribunal sets aside the decision under review and in substitution varies the determination of 4 May 1999 (T33) to provide that Mr Taylor is entitled to a 20% whole person impairment rating in respect of his left knee together with compensation for non-economic loss under s 27 of the Safety, Rehabilitation and Compensation Act 1988 calculated on the basis that he has a total score of 6.7 on Table 5 in respect of Tables 1-4 in Part B of the Guide.    2.   The Tribunal reserves liberty to the parties to apply if clarification is required as to the amount payable to Mr Taylor as a result of the Tribunal's decision.
  (Sgd) Joan Dwyer
  Senior Member

COMPENSATION – issue as to amount of compensation payable for permanent impairment of left knee - compensation having already been paid in respect of permanent impairment of the right knee - construction of the Guide to the Assessment of Permanent Impairment - table most favourable to the applicant must apply - decision set aside

Comcare v Mihajlovic [2000] FCA 285

Re Morley and Comcare (1996) 40 ALD 725

Whelan and Department of Defence (1997) 47 ALD 383

Whitaker v Comcare (1998) 28 AAR 55

REASONS FOR DECISION

14 November 2000 Mrs Joan Dwyer, Senior Member Mr D Elsum, AO, Member Miss E A Shanahan, Member

This is an application for review of a reviewable decision under the Safety, Rehabilitation and Compensation Act 1988 ("the Act"). The issue for determination concerns the appropriate method of calculating the amount payable to Mr Taylor in respect of permanent impairment of his left knee. He previously received compensation in respect of permanent impairment of the right knee. The reviewable decision made 16 July 1999 (T35) affirmed a determination of 4 May 1999 (T33) that Mr Taylor was entitled to compensation for permanent impairment and non-economic loss in respect of bilateral medial compartment arthritis, of the knees, and that the total amount of compensation payable was $15,767.52. That figure represented payment in respect of an increase in a previously determined degree of impairment of 10% for the right knee. The determination of 4 May 1999 (T33) withdrew an earlier offer contained in a letter dated 28 January 1999 (T31) to pay Mr Taylor $36,180.87 compensation in respect of permanent impairment resulting from tear of the left medial meniscus.
Mr Taylor was represented by Mr D De Marchi, a solicitor. Comcare was represented by Ms A McMahon of Counsel. Mr Taylor gave evidence. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and also a report of Mr Quirk which was tendered as an applicant's exhibit during the hearing.
There is no dispute about the fact that Mr Taylor has compensable conditions affecting both his knees. He is a Warrant Officer Class 2 ("WO2") serving with the Australian Army and has been so serving at all relevant times. It is not in issue that both his knees have required intensive medical treatment. Mr Taylor gave evidence that he is unable to perform some of the normal duties of a WO2, but that he is an instructor in the use of small arms, and that those duties are within his physical capacity.
On 13 September 1995 Mr Taylor lodged two compensation claim forms. One (T3) claimed compensation in respect of the removal of his left knee cartilage. The other claim (T4) was in relation to two reconstructions of his right knee and numerous arthroscopies of that knee, leading to deterioration of the knee and removal of cartilage. Both knees were injured in sporting activities in the course of his Army service. On 22 February 1996 Mr Taylor was advised that a determination had been made admitting liability for medial meniscal tear of the right knee and chondromalacia patellae in the right knee (T10). The claim in respect of the left knee was accepted by a determination dated 18 April 1996. As Mr Taylor has at all times been serving in the Australian Army he has not had any loss of earnings due to his compensable conditions. Nor has he incurred costs for medical treatment. However he has suffered permanent impairment of both knees. Soon after his claim in respect of the right knee was accepted, on 27 February 1996, (T11) he lodged a claim for compensation for permanent injury in respect of medial meniscal tear right knee and chondromalacia patellae in the right knee.
Mr Taylor on 26 March 1996 attended Dr Harvey-Sutton for medical examination in respect of his accepted right knee claim, as required by a delegate of Comcare. The reason for the attendance was to obtain a medical assessment of the degree of whole person impairment. Dr Harvey-Sutton reported on 15 April 1996 (T15) that in her opinion Mr Taylor had an internal derangement of the right knee and should be assessed at 10% impairment on Table 9.2 of the Comcare Guide to the Assessment of Permanent Impairment ("the Guide"). Dr Harvey-Sutton advised (T15 p103):
Question 1:
As assessed on Table 9.2 (lower extremity) of the Comcare Guide to the Assessment of Permanent Impairment, he has a 10% impairment, namely loss of less than half normal range of the knee.
Table 9.5 is thus not appropriate.
Question 2:
I do not consider that the impairment could be reduced by further medical and/or rehabilitative treatment. Nevertheless, there is no doubt that Mr Taylor will continue to require further medical and rehabilitative treatment.
Question 3:
It is likely that the impairment will deteriorate significantly over the next 10-20 years with development of osteoarthritis in the internally deranged joint.
The issue for determination requires consideration of the use of Tables 9.2 and 9.5 of the Guide. As set out in the preceding paragraph Dr Harvey-Sutton assessed Mr Taylor's impairment in respect of his right knee as 10% on Table 9.2 and stated "Table 9.5 is thus not appropriate". It is necessary to consider the scope of Tables 9.2 and 9.5.
Table 9.2
This Table is headed Lower Extremity. The note explains that it assesses in accordance with the range of joint movement. The level of impairment selected as appropriate by Dr Harvey-Sutton was 10% which applies where a person has "loss of less than half normal range of movement of . . . knee".
Table 9.5
This Table is headed Limb function – Lower Limb. It provides for the following relevant percentage ratings:
10 Can rise to standing position and walk BUT has difficulty with grades and steps
20Can rise to standing position and walk but has difficulty with grades, steps and distances
30Can rise to standing position and walk with difficulty BUT is limited to level surfaces
On 3 May 1996 Mr Taylor was advised by letter (T18) of the approximate amount which he would be paid in respect of the assessment made by Dr Harvey-Sutton. The letter stated that it was not a formal assessment or determination of the amount of compensation payable, but was intended to enable Mr Taylor to make an informed decision as to whether he wished to receive compensation or institute proceedings at common law. Mr Taylor elected to receive compensation and on 4 June 1996 a determination (T20) was made that he was entitled to $10,557.65 under s 24 of the Act. That amount was paid to Mr Taylor together with $10,557.65 for non-economic loss under s 27 of the Act. Thus he received a total of $21,115.30 compensation in respect of permanent impairment of his right knee. The assessment of impairment was made in accordance with Table 9.2 of the Guide.
The matter then remained quiescent, so far as the documents show, until 22 September 1998 (T23) when Mr Taylor requested a lump sum for permanent impairment in respect of the tear of the medial meniscus of his left knee. It had been accepted as a compensable injury on 18 April 1996. Mr Taylor advised in his letter of 22 September 1998 that he had undergone arthroscopy surgery to the left knee in June 1998 and that at the last review on 12 August 1998 his specialist had informed him that the knee was stabilised.
On 2 November 1998 Mr Taylor was examined by Mr Peter Scott, a general surgeon. The letter of referral from the Department of Defence as delegate of Comcare said (T24 p117):
The purpose of the examination is:

to obtain an assessment from you of the degree of permanent impairment suffered by the client as a result of tear of the medial meniscus left knee he suffered at work on 4 March 1987. (emphasis added)

Mr Scott reported on 6 November 1998 (T25 p124). His report contained a history with regard to the injury to the left knee and management of that problem, of approximately a page and a half. He assessed Mr Taylor's whole person impairment "with regards to the left knee claim", as follows:
4. Utilizing Table 9.5 of "the Guide" = 20% impairment of the whole person. (Can rise to standing position and walk, but has difficulty with grades, steps and distances.)

It was not contended by the respondent that Mr Scott's rating of the left knee on Table 9.5 was not an appropriate assessment of impairment resulting from that compensable injury.

On 20 November 1998 (T26) Mr Taylor was advised by letter that he was eligible to receive a lump sum payment in respect of his left knee condition. He was also asked to complete an non-economic loss questionnaire in respect of the injury to his left knee. That is a necessary step to assess the compensation for non-economic loss payable under s 27 of the Act. Such compensation is payable whenever compensation for permanent impairment is payable under s 24 of the Act. Mr Scott was also asked to complete the relevant section of the non-economic loss questionnaire. On the basis of Mr Scott's examination and report, and the questionnaire as completed by Mr Taylor and Mr Scott, Mr Taylor was advised by letter dated 28 January 1999 (T31) that compensation of $36,180.87 was payable to him. That figure represented 20% whole person impairment on Table 9.5 in respect of a tear of the left medial meniscus ($22,525.05), plus non-economic loss under s 27 ($13,655,82).
Mr Scott had been asked by letter dated 22 December 1999 (T29) to provide a percentage whole person impairment, if both the right and left leg impairments were considered together on Table 9.2, as well as if they were considered separately on Table 9.5. He replied in a report dated 27 December 1998 (T30) as follows:
Thank you for your note of 22nd December, 1998 concerning Mr. Wayne Robert Taylor and I can make further comments which should be taken together with those given in my reports of 6th November, 1998 and 10th December, 1998.
With regards to the claimant's right knee problems, (three anterior cruciate ligament reconstructions, and four arthroscopies) with resultant loss of normal range of flexion of the knee joint, patello-femoral crepitus and ongoing laxity of the anterior cruciate ligament.
Table 9.2 = 10% whole person impairment.
Table 9.5 = 20% whole person impairment.
It is recalled that with regards to the left knee, there was a 20% whole person impairment, utilising Table 9.5.
Table 9.2 would be equal to 10% whole person impairment.
If one calculates according to the Combined Value Chart, percentage whole person impairment for both knees,
Utilising Table 9.2 = 19% whole person impairment.
Utilising Table 9.5 = 36% whole person impairment.
Although that report of 27 December 1998 was written approximately a month before the letter of offer of 28 January 1999 (T31), it seems that the offer was reconsidered after Mr Taylor completed a non-economic loss questionnaire in regard to his right knee at the respondent's request. That request was contained in the letter of offer of 28 January 1999 (T31) in the following terms (T31 p139):
Due to a recent decision of the Federal Court you are entitled to a reassessment of your right knee condition.
Another Non-Economic Loss Questionnaire is enclosed. Please complete the explanation boxes only. An interview with a Department officer prior to selecting the degrees of impairment, must take place, either by telephone or in person. If you wish to be interviewed by telephone please return a copy of the form to this office before calling to arrange the interview. Following the interview you must sign Section 4 of the form and return it to this office for signature by the interviewing officer.
The form will then be forwarded to Mr Scott for his comments and signature.
After Mr Taylor's completed non-economic loss questionnaire in respect of the right knee was returned to the Department of Defence, Mr Taylor received a letter dated 4 May 1999 (T33) withdrawing the offer of $36,180.87 in respect of permanent impairment of the left knee due to the tear of the left medial meniscus. The letter of 4 May 1999 (T33 p144) determined that Mr Taylor was entitled to $15,767.52 compensation for permanent impairment due to the left knee condition. It explained:
I now determine that the injuries to your left and right knees have resulted in a bilateral condition, namely bilateral medial compartment arthritis.
As you were assessed by Mr Scott under Table 9.5 of the Comcare Permanent Impairment Guide, I now withdraw our offer dated 28 January 1999 in respect of a tear of the left medial meniscus, because only one assessment should have been made on Table 9.5 as it looks at loss of function rather than impairment of particular parts of the body, and the functions described require the use of two legs.
On the basis of Mr Scott's medical report dated 27 December 1998, I determine that you have suffered a further whole person permanent impairment in respect of a tear of the left medial meniscus resulting in internal derangement of the left knee and post meniscectomy arthritis involving particularly the medial compartment, and a medial meniscal tear of the right knee and chondromalacia patella in the right knee, resulting in moderate medial compartment arthritis, and that the increased degree of impairment is 10%.
The total amount of compensation payable has been assessed as $15,767.52 which consists of $11,262.52 under Section 24 of the Act for impairment, plus $4,505.00 under Section 27 of the Act for the non-economic loss component. (emphasis added)
Mr Taylor requested a review of that determination in a detailed letter of 14 May 1999 (T34). On 16 July 1999 (T35) the determination withdrawing the original offer of $36,180.87 in respect of tear of left medial meniscus and substituting a determination that Mr Taylor was entitled to $15,767.52 for bilateral (instead of simply left) medial compartment arthritis was affirmed.
The history of determinations set out above is complicated. It can be tabulated as follows:
Date    Tdoc   Effect
13 September 95      T3 and 4        Mr Taylor lodged two compensation claim forms, one for each knee.
22 February 96         T10     Respondent admitted liability for medial meniscal tear of the right knee and chondromalacia patellae in the right knee
27 February 96         T11     Claim lodged – compensation for permanent injury in respect of right knee.
18 April 96     T16     Liability accepted for left knee – no determination as to compensation payable in respect of the left knee.
3 May 96        T18     Mr Taylor advised by letter of the approximate amount which would be paid in respect of the right knee assessment made by Dr Harvey-Sutton.
4 June 96 T20 Determination – entitled to $10,557.65 under s 24 of the Act plus $10,557.65 under s 27 for non-economic loss in respect of permanent impairment of right knee
22 September 98      T23     Mr Taylor requested a lump sum for permanent impairment in respect of left knee.
20 November 98       T26     Letter advising Mr Taylor that he was eligible to receive a lump sum payment in respect of his left knee condition. Mr Taylor was asked to complete a non-economic loss questionnaire in respect of the injury to his left knee.
28 January 99           T31     Offer of $36,180.87 for 20% whole person impairment on Table 9.5 in respect of a tear of the left medial meniscus and non-economic loss.
4 May 99        T33     Letter advising withdrawal of the offer of $36,180.87 and substituting determination that amount payable was $15,767.52.
14 May 99     T34     Mr Taylor requested a review of the decision (T33) withdrawing offer of $36,180.87.
16 July 99      T35     Reviewable decision affirming determination withdrawing the original offer of $36,180.87 in respect of tear of left medial meniscus and substituting a determination awarding an increase of 10% amounting to $15,767.52 for bilateral medial compartment arthritis.

The issue which concerns the Tribunal is essentially a legal one as to the construction of the Guide to the Assessment of Permanent Impairment ("the Guide"). The Act in s 24(5) provides that the degree of permanent impairment payable in respect of compensation for permanent impairment under s 24 of the Act is to be in accordance with the provisions of "the approved Guide". Similarly the amount of compensation payable for non-economic loss is to be calculated in accordance with the approved Guide. The Guide is authorised by s 28 of the Act.
Sections 24, 25 and 27 of the Act so far as relevant read as follows:
24. (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.
. . .
(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.
25. (4) Where Comcare has made a final assessment of the degree of permanent impairment of an employee, no further amounts of compensation shall be payable to the employee in respect of a subsequent increase in the degree of impairment, unless the increase is 10% or more.
27. (1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
There was no suggestion on the evidence that the assessments of 10% degree of permanent impairment in respect of the right knee on Table 9.2 made by Dr Harvey-Sutton, and 20% degree of permanent impairment in respect of the left knee on Table 9.5 made by Mr Scott, were inappropriate medical assessments of impairment. However the respondent submitted that a different method of assessment should be used which would result in a lesser payment of compensation to Mr Taylor.
We have some difficulty in understanding how the respondent could consider that approach to be appropriate. The respondent, in spite of the opinion it had obtained from Mr Scott, decided in its determination of 4 May 1999 not to assess the tear of the left medial meniscus as a compensable injury in its own right for which the appropriate impairment rating was 20. The respondent decided, in T33, to substitute for the previously accepted conditions in respect of both knees, a determination that the injuries to the left and right knees had resulted in bilateral medial compartment arthritis, and that the increased degree of impairment, when considering impairment of both knees, rather than just the right knee as had been done earlier, (T20), was 10% more than the previously assessed impairment in respect of the right knee.

The problem with the respondent's approach is that the Federal Court in Whitaker v Comcare (1998) 28 AAR 55 at p69 held that where there are two possible ways of assessing compensation payable in respect of permanent impairment, the decision-maker must assess on the Table which favours the employee. The Court set out the relevant question stated and its answer as follows:
Q4. If both Table 9.2 and Table 9.5 are capable of being used for the purpose of assessing the level of impairment resulting from soft tissue injury involving a joint, whether the decision-maker has a discretion as to which Table will be used.
A: There is no discretion: where both Tables 9.2 and 9.5 are applicable, the decision-maker must assess the degree of permanent impairment under that one of Tables 9.2 or 9.5 which yields the most favourable result to the employee. (emphasis added)
The respondent acknowledges that there is a duty on the respondent to assess on whichever of Tables 9.2 and 9.5 is more favourable to the applicant. If the assessment of 10% on Table 9.2 in respect of the right knee made in 1996 is left undisturbed, it is clear that the assessment Mr Scott made of 20% for the left knee on Table 9.5 "yields the most favourable result to [Mr Taylor]". That is therefore the assessment required by the legislation as explained by the Federal Court in Whitaker.
The respondent pointed out in the reviewable decision of 16 July 1999 that there is support for the approach of assessing impairment from both knees together on Table 9.5. It referred to Re Whelan and Department of Defence (1997) 47 ALD 383 in which the Tribunal stated at paragraphs 78 and 79:
The final issue is whether Mrs Whelan is entitled to a combined impairment assessment on Table 14.1 of 20% for each leg, making 36%, or whether she is simply entitled, on Table 9.5 to one whole person impairment assessment of 20%. In Re Morley, I said, at pp731-732, para 24:
"Mr Moulds submitted that there should be a rating in respect of each leg under Table 9.5, making a total rating under that Table of 40%. I reject that submission. First, the activities referred to are all activities usually requiring the use of two legs and secondly, if Mr Moulds' submission were accepted, it would lead to a rating of 130% whole person impairment for every paraplegic."
In fact the reference to 130% is an error. The correct percentage would be 88% on Table 14.1.
Although Mr Ingram opened his case on the basis that Mrs Whelan was entitled to a combined rating of 10% for each leg on Table 9.5, when he considered the comments of Olney J in Collins and heard the evidence as to difficulty with distances, and when I drew his attention to my comments in Re Morley, he said he no longer submitted that there should be an assessment for each leg on Table 9.5. This point does not seem to have been dealt with in any other Tribunal decision but I do add to the reasons given in Re Morley the further consideration that Table 9.2, Note 4, provides:
"Values are for one joint only. Where more than one joint is affected, values should be combined using the Combined Values Table (Table 14.1)."
Table 9.5 is silent as to the possibility of combining values for impairment of function for both legs. I therefore hold, as I did in Re Morley, that only one assessment should be made on Table 9.5 as it looks at loss of function rather than impairment of particular parts of the body, and the functions described require the use of two legs.
The respondent pointed out that the examining medical practitioners, Mr Scott and Mr Quirk who examined Mr Taylor at the request of his own solicitor, both considered that Table 9.5 could give rise to two 20% impairment ratings in respect of the two legs. That raises a question as to whether the Tribunal was correct in Re Morley and Comcare (1996) 40 ALD 725 and in Whelan when it held that only one rating was appropriate under Table 9.5 in respect of loss of function even if both legs had compensable injuries.
It is however not necessary for this Tribunal to decide whether or not the decisions of Morley and Whelan as to the application of Table 9.5 are correct. The Federal Court in Whitaker has said quite clearly that the Table most favourable to an applicant must be used. The issue here concerns the appropriate assessment of Mr Taylor's impairment of the left knee due to the accepted condition of tear of the left medial meniscus (see T16, letter of acceptance of claim). The right knee condition has already been accepted and a determination has been made in respect of impairment and non-economic loss and that amount has already been paid to Mr Taylor. The respondent sent Mr Taylor to Mr Scott for assessment of impairment in respect of the tear of the left medial meniscus. Mr Scott made an assessment of 20% whole person impairment on Table 9.5 in respect of the left knee claim. That assessment was reflected in the offer to pay $36,180.87 made by letter dated 28 January 1999 (T31), but no formal determination was made to that effect.
The Guide allows for the combining of impairments from different conditions to determine a whole person impairment. Thus there would be no difficulty in combining impairments for right leg and left leg under the combined impairment Tables. The problem arises because the Guide provides two possible ways of assessing impairment of a lower limb. One can use Table 9.2, which focuses on loss of range of movement of the lower extremity, or one can use Table 9.5, which focuses on function of the lower limbs. According to the opinion of Dr Harvey-Sutton, the right knee impairment was assessed on the basis of Table 9.2. She assessed Mr Taylor as having a loss of less than half normal range of movement of the right knee. That gave an impairment rating of 10%. Mr Scott, when he wrote his first report of 6 November 1998 (T25), was of the opinion that the appropriate way to assess the impairment of the left leg was on Table 9.5 which focuses on loss of function rather than on Table 9.2 which looks at loss of range of movement. He suggested a rating of 20% on Table 9.5 for the left knee, "can rise to standing position and walk but has difficulty with grades, steps and distances", rather than a rating on Table 9.2.
The respondent, at first, accepted Mr Scott's opinion, but then decided that it was not appropriate to combine the 20% impairment rating for the left knee as suggested by Mr Scott, with the 10% impairment rating for the right knee previously determined in accordance with the opinion of Dr Harvey-Sutton. First, the respondent suggested that the left knee as well as the right knee should be assessed on Table 9.2 by looking at loss of range of movement. That would mean an increase in overall impairment of 9% only, as two 10% ratings on Table 9.2, one for loss of less than half normal range of movement for the left knee and the other for the right knee, would combine to make a 19% impairment rating. There would be no additional payment as under s 25(4) of the Act there is no additional compensation payable for an increase in the degree of impairment unless the increase is 10% or more. Thus Mr Taylor with significant impairment of both knees would be entitled to the same amount of compensation to which he would have been entitled if his left knee caused no impairment. Clearly that approach would not comply with Whitaker.
There is no doubt that a 20% impairment rating for the left knee under Table 9.5 was that first selected by Mr Scott. It is appropriate without reference to the impairment rating for the right knee. That approach is clearly more favourable for Mr Taylor, accepting that he already has a 10% rating in respect of his right knee, than a 10% rating on Table 9.2 for the left knee. Two 10% ratings combine at 19% and there would be no increase in respect of compensation for impairment. A 20% rating for the left leg on Table 9.5 and a 10% rating for the right leg on Table 9.2 when combined, result in a 28% rating. There is no reason why such a rating should not be given. It is supported by the medical evidence, and it is the most favourable way of applying the Tables to Mr Taylor. Mr Taylor has not, himself, raised the question of an increase in impairment in respect of his right knee. He has not asked for any reassessment in respect of his right knee and there is no reason why the respondent at this stage should alter the previous right knee assessment. Choosing the appropriate left knee assessment and combining it with the previous right knee assessment is the current task. The two appropriate assessments of 20% for the left leg on Table 9.5 and 10% for the right leg on Table 9.2 can, and in our view should, be combined, leading to a finding that Mr Taylor is entitled to the compensation previously offered to him in letter T31. We reject Ms McMahon's submission that such an assessment involves a double assessment. Each of those assessments is in accordance with the opinion of the respondent's medical experts as to the degree of permanent impairment of one knee.
Ms McMahon submitted that we have jurisdiction to review the original determination as to the compensation payable for permanent impairment of the right knee. Even if we have that jurisdiction, on the evidence in this matter we see no reason to exercise it. Mr Taylor did not himself raise the issue of an increase in impairment rating in respect of the right knee with the respondent. Similarly, we do not consider it is necessary or appropriate to consider whether, if he had done so, it would have been possible to combine two 20% impairment ratings on Table 9.5. Mr De Marchi asked us to adopt that course. We have decided that it is appropriate not to do so.
Ms McMahon referred the Tribunal to the Federal Court decision of Comcare v Mihajlovic [2000] FCA 285 and submitted that the fact that an impairment has been rated under one particular Table does not necessarily mean that a new rating in respect of that impairment should not be done on a different Table. We accept that such a course may be appropriate in certain circumstances, particularly where medical evidence suggests that the Table originally applied is no longer appropriate. But we do not accept that an appropriate reason for such a change in choice of Table is to reduce an applicant's entitlement to compensation where there is no evidence to suggest that the previous rating is inappropriate.
A further issue which arose during the hearing concerned Mr Taylor's entitlement to compensation for non-economic loss under s 27 of the Act. As Mr De Marchi pointed out, Mr Taylor has two compensable injuries. On 22 February 1996 the respondent accepted "medial meniscal tear of the right knee and chrondromalacia patellae" (T10 p86) in the right knee as a compensable injury. On 18 April 1996 the respondent accepted liability for "tear of the left medial meniscus". It is clear on the evidence that both those compensable injuries result in permanent impairment. Thus under s 27 of the Act, Comcare is liable to pay additional compensation to Mr Taylor for non-economic loss as a result of each of these injuries. Ms McMahon claimed that there was a difficulty in calculating the appropriate s 27 compensation in respect of the left knee as the impairment in both legs contributes to matters such as pain and suffering and loss of amenities including mobility and social relations. However Mr Taylor was asked to complete a non-economic loss questionnaire in respect of each leg. He said in cross-examination that he did not combine both knees in completing those forms but dealt with effects in respect of the particular knee which was being claimed at the time. We find that he did the best he could to fairly assess the effects of each injury or impairment when he completed those forms.
Section 27 provides that Comcare is liable to pay compensation under s 27 in respect of "an injury to an employee [which] results in permanent impairment". Section 27(2) of the Act provides that the amount of compensation is to be assessed under a specific formula. There is no legislative authority for assessing that amount in any other way. Thus the Act requires that additional compensation be paid to Mr Taylor in respect of his compensable left knee injury in accordance with the formula in s 27(2) which requires determination of the degree of non-economic loss in accordance with the Tables in Part B of the Guide.
The questionnaire completed by Mr Taylor in respect of his tear of left medial meniscus is at T28 pp 131-134. The figures on the forms are incorrect. He considered the description of the ratings taken from the Guide but someone has written the incorrect numbers beside the boxes. Giving the correct numbers to the descriptions selected by Mr Taylor he assessed the non-economic loss in respect of the left knee injury as follows:
Pain - 4
Suffering - 2
Mobility - 2
Relationships - 2
Recreation and Leisure Activities – 3

Dr Scott suggested that a description of rating 3 would be more appropriate for pain. Otherwise he accepted Mr Taylor's assessments as appropriate. We accept Dr Scott's assessment on that Table.

The Guide at Table 5 has a worksheet which shows how to convert those scores to a percentage of the second half of the maximum lump sum payable for non-economic loss. The calculation, using Mr Taylor's figures is as follows:
CALCULATION OF TOTAL OF SCORES
Table 1 – Pain and Suffering
(Pain Score 3 ) x 0.5 =   1.5
(Suffering Score 2 ) x 0.5 =   1
Table 2 – Amenities of Life
(Mobility Score 2 ) x 0.6 =   1.2
Social Relationships Score 2 ) x 0.6 =   1.2
(Recreation and Leisure Activities Score 3 ) x 0.6 =       1.8
TOTAL OF SCORES =   6.7
The decision under review will be set aside. In substitution the determination of 4 May 1999 will be varied to provide that Mr Taylor is entitled to a 20% whole person impairment rating in respect of his left knee together with compensation for non-economic loss under s 27 of the Act calculated on the basis that he has a total score of 6.7 on Table 5 in respect of Tables 1-4 in Part B of the Guide. Liberty will be reserved to the parties to apply if clarification is required as to the amount payable to Mr Taylor as a result of this decision.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member, Mr D Elsum, AO, Member and Miss E A Shanahan, Member
Signed:         Anne O'Rourke
  Associate
Date/s of Hearing  31, March and 4 August 2000
Date of Decision  14 November 2000
Counsel for the Applicant           Nil
Solicitor for the Applicant            Mr D De Marchi
Counsel for the Respondent       Ms A McMahon
Solicitor for the Respondent       Australian Government Solicitor