Terry Chang and Military Rehabilitation and Compensation Commission
[2013] AATA 677
[2013] AATA 677
Division VETERANS' APPEALS DIVISION File Number
2012/2246
Re
Terry Chang
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Dr G J Maynard, Brigadier (Rtd), MemberDate 24 September 2013 Place Brisbane The Tribunal sets aside the decision under review and substitutes its decision that the applicant’s injuries have resulted in 20% and 0% impairment under Tables 9.5 and 9.6 of the Guide, respectively.
...............................[.Sgd.].......................................
Mr R G Kenny, Senior Member
CATCHWORDS
COMPENSATION – Military Compensation – Impairment for “left pre-patella soft tissue injury” and “aggravation of sciatica with early signs of lumbar spondylosis at L5/S1” – Relevance of work-related psychiatric conditions (“major depressive disorder” and “anxiety disorder”) to assessment under Table 9 of the “Guide to the Assessment of the Degree of Permanent Impairment” Edition 2.1, Part 2 – Contribution by psychiatric conditions to assessment of impairment under Table 9.5 but not under Table 9.6 – Increase in impairment under Table 9.5 from 10% to 20% – Impairment of 0% under Table 9.6 of the Guide – Decision under review set aside
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14, 24, 27 28
CASES
Bryant v Military Rehabilitation and Compensation Commission [2008] FCA 1424
Calman v Commissioner of Police (1999) 59 ALD 366
Comcare v Fiedler [2001] FCA 1810
Comcare and Kay (1997) 26 AAR 124
Comcare v Moon [2003] FCA 569
Department of Public Works v Morrow (1986) 5 NSWLR 166
Pickersgill v Freightbases Pty Ltd (1983) 3 NSWLR 117
Re Bacic and Comcare [2008] AATA 465
Re Jones and Department of Defence [1998] AATA 789
Re Russell and Comcare [2000] AATA 243
Re Sell and Comcare [2003] AATA 711
Rothwell v Caverswall Stone Co Ltd [1944] 2 All ER 350
Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 39 NSWLR 87Whittaker v Comcare (1998) 86 FCR 532
SECONDARY MATERIALS
Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1)
REASONS FOR DECISION
Mr R G Kenny, Senior Member
Dr G J Maynard, Brigadier (Rtd), Member24 September 2013
BACKGROUND
The Military Rehabilitation and Compensation Commission (“the respondent”) determined, in accordance with s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”), that Terry Chang (“the applicant”) suffers from compensable conditions related to his employment in the Australian Army (“the Army”) which was from 1990 until 2000. These include: “pre-patella soft tissue injury” relating to his left knee, “major depressive disorder” and “anxiety disorder”. The respondent also determined that the applicant suffers from permanent impairment in relation to his knee condition and his psychiatric conditions, assessing whole person impairment at 10% and 40%, respectively, with compensation payable to him under ss 24 and 27 of the Act.[1] The assessment was made under the Guide to the Assessment of the Degree of Permanent Impairment (“the Guide”).[2]
[1] Exhibit 1, T-Documents 5, 7.
[2] Edition 2.1, Part 2 published in 2011 in accordance with s 28 of the Act.
In November 2009, the applicant’s solicitor requested a reassessment of permanent impairment in respect of the applicant’s knee condition.[3] In the request letters, reference was made to a “lumbar spinal condition” from which the applicant suffered. Subsequently, the respondent accepted liability for “aggravation of sciatica with early signs of lumbar spondylosis at L5/S1”,[4] which was due to altered gait resulting from the applicant’s knee condition. On 25 October 2011,[5] the respondent determined that the applicant was not entitled to payments under ss 24 or 27 of the Act.[6] In a reviewable decision on 4 April 2012, a delegate of the respondent affirmed that determination.
[3] Exhibit 1, T-Documents 8, 9, pp. 33-37.
[4] Exhibit 1, T-Document 14, pp. 65-66.
[5] To similar effect was a decision of 4 November 2010; see Exhibit 1, T-Document 16, pp. 69-70.
[6] Exhibit 1, T-Document 14, pp. 131-132.
LEGISLATION AND ISSUES
The provision relating to permanent impairment in the Act is s 24 thereof which, in so far as is relevant in this matter, reads:
24 Compensation for injuries resulting in permanent impairment
(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.
…
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
…
(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.
Under s 4(1) of the Act:
permanent means likely to continue indefinitely.
The issues for determination are whether an injury to the applicant has resulted in a permanent impairment and, if so, the degree of such impairment. It was not in dispute that the assessment of impairment was to be made in accordance with the Guide, the relevant parts of which read:
9. Musculo-skeletal system
(Percentage whole person impairment)
Introduction
These tables are intended to be used to assess impairment arising from specific joint lesions or amputations. Where the joints function normally but the use of a limb is restricted for other reasons, eg soft tissue injury, nerve injury or bony injury not involving joints, Tables 9.4 or 9.5 should be used. These Tables can be used to assess the impairment of overall limb function from any cause.
Note: either the musculo-skeletal table or Table 9.4 or 9.5 should be used—not both.
Assessment is in accordance with the range of joint movement. X-rays should not be taken solely for assessment purposes
TABLE 9.5
Limb Function – Lower Limb
(Percentage whole person impairment)
%
DESCRIPTION OF LEVEL OF IMPAIRMENT
10
Can rise to standing position and walk BUT has difficulty with grades and steps
20
Can rise to standing position and walk but has difficulty with grades, steps and distances
30
Can rise to standing position and walk with difficulty BUT is limited to level surfaces
50
Can rise to standing position and maintain it with difficulty BUT cannot walk
65 Cannot stand or walk
TABLE 9.6
Thoraco-lumbar Spine
(Percentage whole person impairment)Note: Lesions of the sacrum and coccyx should be assessed by using the table which most appropriately reflects the functional impairment. This will usually be Table 9.5. Lesions of the spine are often accompanied by neurological consequences. These should be assessed using Table 9.4 or 9.5 and the results combined using the combined values table.
%
DESCRIPTION OF LEVEL OF IMPAIRMENT
0
X-ray changes only
5
Minor restrictions of movement OR crush fracture – compression 25-50 percent
10
Loss of less than half normal range of movement OR Crush fracture – compression greater than 50 percent
15
Loss of half normal range of movement
20
Loss of more than half normal range of movement
30
Complete loss of movement
EVIDENCE
The applicant
The applicant described himself as a retired soldier. He has not been in remunerative work since he was discharged from the army in 2000. He has pain in his legs and back which limits his walking more than 50 metres; causes him to utilise a railing when negotiating stairs; and gives him problems ascending and descending sloping ground, including ramps. Leaning forward in actions such as tying shoe laces causes tingling sensations in his right calf which radiate to his foot. He is unable to sit for more than a minute without shifting position and is able to drive a car for only about 40 minutes provided he has ingested pain killers beforehand. Standing still is limited to about 30 seconds before he needs to shift position. Sleeping is limited to 2 hours before waking due to the pain in his legs and back. Psychiatrist, Dr B Matthews, has treated him on a fortnightly basis for about 10 years with cognitive therapy to assist him with sleeping and relaxation.
In cross-examination, the applicant agreed that he had advised orthopaedic surgeon, Dr Steven Frederiksen, that he had injured his knee in 1998 when carrying timber and that he had suffered back pain ever since that incident.[7] He also agreed that he had advised orthopaedic surgeon, Dr Michael Scheutz, when he saw him in 2010[8] and 2012,[9] that his back pain commenced 3 and 5 years, respectively, earlier. He told the Tribunal that the later reference was to a worsening of the earlier symptoms. He was referred to a Medical History Questionnaire completed by him on 23 March 2000 prior to his discharge from the Army.[10] He agreed that, therein, he denied any back problems and explained that he had been told that if he admitted to a back problem it might prevent him from being able to re-enlist in the Army. He agreed that the Questionnaire identified other medical conditions he had experienced during his Army service including migraine, depression, anxiety, sleeping difficulty, hernia, fractured bones and knee trouble.
[7] Exhibit 1, T-Document 33, p. 120.
[8] Exhibit 1, T-Document 13, p. 53.
[9] Exhibit 3, p. 3.
[10] Exhibit 2.
Medical evidence
Evidence was given and reports were provided by orthopaedic surgeons Dr Scheutz,[11]
Dr Steven Frederiksen[12] and Dr Hugh English.[13] As well as specialist in occupational medicine, Dr Ian Low.[14] In preparing their respective reports, each of those specialists was aware of the report of Dr Matthews, the applicant’s treating psychiatrist. Orthopaedic surgeon, Dr Jeremy Bartlett, completed a report on 20 December 2000 in which no reference is made to Dr Matthews.[15]
[11] Reports dated 2 September 2010, 1 November 2012 and 18 March 2013.
[12] Reports dated 20 September 2011, 18 August 2012 and 22 May 2013.
[13] Reports dated 22 February, 13 August 2012 and 2 May 2013.
[14] Reports dated 4 September 2008 and 5 November 2012.
[15] Exhibit 1, T-Document 3, pp. 16-18.
Dr Scheutz
In his first report in relation to the left knee, Dr Scheutz described no loss of range of movement and some reduction in circumference of the left thigh.[16] He diagnosed “post status of patella contusion with remaining hyper sensible area left knee”.[17] For the applicant’s back, Dr Scheutz noted “significant low back pain, with paravertebral tenderness, but without neurological deficits”.[18] He also diagnosed “Sciatica with early signs of lumbar spondylosis in L5/S1”.[19]
[16] Exhibit 1, T-Document 13, p. 55.
[17] Ibid at p. 56.
[18] Ibid.
[19] Ibid.
In his second report, Dr Scheutz referred to documentation he had reviewed, including a psychiatric report from Dr Matthews.[20] He noted that the applicant was suffering from anxiety/depression. For the left knee, Dr Scheutz referred to MRI and arthroscopy results which demonstrated no pathological findings except a “minor degenerative change in the medial meniscus” but no loss of range of movement.[21] Dr Scheutz noted that the applicant reported difficulty in walking on inclines and steps and for more than 50 metres. He assessed the impairment at 20% under Table 9.5 of the Guide. For the applicant’s back, he reported that the range of movement was “remarkably reduced in extension and flexion related to pain during the examination”.[22] This pain, according to Dr Scheutz, is mostly likely caused by the applicant’s anxiety/depression. Dr Scheutz referred to a recent MRI which demonstrated no lumbar spondylosis at the L5/S1 level of the spine. He assessed the impairment at 10% under Table 9.6 of the Guide. Dr Scheutz wrote that the discrepancy between objective findings and the clinical symptoms of pain and the mobility of the applicant was “astonishing”.
[20] Exhibit 3.
[21] Exhibit 3, p. 5.
[22] Ibid
In his final report, Dr Scheutz confirmed that the applicant had remaining hypersensibility around the left knee and sciatica related to his back condition which was secondary to the left knee condition.[23]
[23] Exhibit 4.
In his evidence, Dr Scheutz confirmed an absence of pathology in the applicant’s left knee and back in respect of X-ray and MRI examinations. He attributed the limitations to ongoing pain from the left knee condition, and also to pain and muscle tension associated with the applicant’s depression. Dr Scheutz conceded that he was not a psychiatrist for the purposes of treating a patient but said that he was able to identify psychiatric symptoms. He confirmed his impairment ratings for the applicant’s lower limbs under Table 9.5 at 20% and for his back under Table 9.6 at 10%. Dr Scheutz accepted that the assessment depended on subjective considerations but believed that the applicant was genuine in his presentation. He expected that the applicant’s limitations would continue as long as the psychiatric conditions did.
Dr Low
In his first report, Dr Low noted that the applicant suffered from anxiety and depression.[24] He also noted that arthroscopy and MRI testing had revealed no significant demonstrable pathology in the left knee. He assessed the applicant at 10% under Table 9.2 of the Guide and at 20% under Table 9.5 of the Guide. His opinion was that the applicant would not respond to a rehabilitation program. For the applicant’s back, Dr Low allocated an impairment of 10% under Table 9.6 of the Guide.
[24] Exhibit 1, T-Document 6, pp. 23-30.
In his second report,[25] Dr Low referred to his observations of the applicant walking and the limitations on the range of movement in his left knee and back and descriptions of pain which prevent the applicant from squatting, kneeling or walking more than 50 metres on flat ground and sitting or standing for more than 10 minutes. Dr Low observed him negotiating a stairway of eight steps, holding a hand rail, before the applicant declared that he could go no further because of pain. Dr Low’s opinion was that the applicant’s left leg symptoms were due to tightness in his spinal musculature which was due to his psychiatric condition. For loss of range of movement in the lumbar spine, he allocated 20% under Table 9.6 of the Guide; 10% for range of movement loss in the left knee under Table 9.2 of the Guide; and 20% for his difficulty with steps and, probably, inclines and distances under Table 9.5 of the Guide.
[25] Exhibit 5.
Dr Low attributed the applicant’s limitations to altered gait from left knee pain; and pain in the right leg and back due to muscle tightness which was caused by the applicant’s emotional state. His opinion was that some 75% of patients demonstrate an emotional overlay to symptoms directly associated with a minor physical condition. He expected that the limitations would continue as long as the psychiatric conditions did, as it was a psychiatric impairment which the applicant displayed. Dr Low agreed that the applicant had not given the same history of commencement of back pain in 1998 which was related to Dr Frederiksen.
Dr Low conceded that the applicant had not referred to muscle tightness and that he inferred that the applicant must have been experiencing muscle tightness because he had seen it in many other patients. He agreed that muscle tightness was the focal issue in his assessment and that this impacts on function by compressing the nerves as they run through to the lower limbs. He said that it was dependent on an emotional disturbance which he described as an emotional dysfunction. He agreed that he had been briefed by the applicant’s solicitor that it was not relevant that the limitations of function resulting in a percentage impairment were due to physical or psychiatric conditions. He agreed that there was a lot of subjectivity in the assessment but said that he had assessed the applicant in relation to range of movement in the spine and left knee. He agreed that he had been “blasé” in his examination of the applicant in respect of muscle tightness. However, he also said that there was no other logical explanation than that the applicant’s psychiatric condition was responsible for his symptoms.
Dr Frederiksen
In his reports,[26] Dr Frederiksen wrote that the applicant had advised him, at his first consultation, that he had experienced continuing pain in his lower back since 1998 which had gradually worsened during his period of army service.[27] He noted some loss of range of movement in the applicant’s back and left knee and mobilisation limits on distances over 50 metres with some limits on stair and incline movements.
His examination revealed an absence of pathology in relation to the applicant’s orthopaedic complaints and he allocated no impairment ratings for those conditions.[28] He was critical of the allocations recommended by Dr Low in the absence of reference to objective assessment.
[26] Exhibits 1 (T-Document 33, pp. 119-128), 6 and 7.
[27] Exhibit 1, T-Document 33, p. 120.
[28] Exhibit 1, T-Document 33, pp. 126-127.
Dr Frederiksen considered that the applicant’s soft tissue injury to the knee would normally have improved quickly. He believed that the applicant’s presentation of symptoms had been genuine but was unable to explain his symptoms on an orthopaedic basis. He said that it was possible that a psychiatric condition could interact with a physical condition to perpetuate symptoms and that it was possible, but not probable, for mobilisation issues to arise in the presence of a psychiatric condition. He also considered that there was a possibility that some minor pathology was related to his symptoms. However, he agreed that, in the absence of another explanation, and where the patient was credible in his descriptions, the psychiatric condition may be the only explanation for the symptoms. He noted that he had advised that the applicant undergo further psychiatric evaluation and pain management. His opinion was that the symptoms of pain which he described may improve if the applicant’s psychiatric conditions improved.
Dr English
Dr English, who also completed a number of reports,[29] said that there were no objective indicators for the source of the applicant’s knee or back pain. He noted that the applicant walked with a limp, had difficulty with stairs and had some loss of range of movement. Dr English was unable to explain the applicant’s limitations on any orthopaedic basis.
He also considered the applicant to be genuine in his description of symptoms. Dr English found no direct association between the applicant’s back and left knee conditions. This included an altered gait due to the knee condition. His opinion was that it was rare in clinical practice for a person to present with pain, but with no pathological basis for it, although he considered that it was not uncommon in a medico-legal context.
Dr English disagreed with the allocation of impairment ratings by Dr Low and concluded that a 0% rating was applicable for his left knee and back conditions.[30] In his evidence, he said that it was possible that the applicant’s symptoms could be explained on a psychiatric basis.
[29] Exhibits 1 (T-Document 45, pp. 172-186), 8 and 9.
[30] Exhibit 9, p. 2.
Dr Jeremy Bartlett
Orthopaedic surgeon, Dr Jeremy Bartlett, saw the applicant on 19 December 2000 and completed a report on the following day.[31] Dr Bartlett noted an absence of pathology in the applicant’s left knee though he noted some wasting of the left quadriceps muscle. After examining the applicant, he concluded that the appropriate impairment ratings for him were 10% under Table 9.2 and under Table 9.5.[32]
[31] Exhibit 1, T-Document 3, pp. 16-18.
[32] Exhibit 1, T-Document 3, p. 18.
SUBMISSIONS
For the applicant, Mr Allan Anforth submitted that, in assessing the applicant’s impairment, consideration should be given to his orthopaedic and psychiatric conditions, each of which contributed to the degree of impairment. He submitted that the limitations imposed by both orthopaedic and psychiatric conditions were to be taken into account in each component of Table 9 of the Guide.[33] Mr Anforth submitted that the applicant’s Statement of Facts, Issues and Contentions[34] fairly raised the contention that the impairment was related to both orthopaedic and psychiatric conditions, and also the opinion on psychiatric impairment under Table 5.1 of the Guide by Dr Matthews.
He submitted that, while the applicant may have consistently presented his case on an orthopaedic basis, he should not be burdened with the task of self-diagnosing his problems and that his claim was in respect of impairment rather than its cause. As to whether an injury results in impairment, Mr Anforth submitted that it was sufficient if the injury played a causal role in the development of incapacity, that it did not need to be the immediate or proximate cause of that incapacity and that it was sufficient if the injury played a role concurrently with another factor.[35] As to the concept of difficulty in Table 9.5 of the Guide, he submitted that anything in the nature of a “severe” difficulty was not required.[36] He submitted that the applicant’s limitations reflected 20% impairment under Table 9.5 of the Guide as well as 20% impairment under Table 9.6 of the Guide.
[33] Citing Comcare and Kay (1997) 26 AAR 124 (“Kay”); and Department of Public Works v Morrow (1986) 5 NSWLR 166.
[34] Received by the Tribunal on 19 July 2013.
[35] Citing Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 39 NSWLR 87; Calman v Commissioner of Police (1999) 59 ALD 366; Pickersgill v Freightbases Pty Ltd (1983) 3 NSWLR 117; and Re Russel and Comcare [2000] AATA 243.
[36] Citing Re Jones and Department of Defence [1998] AATA 789; Re Sell and Comcare [2003] AATA 711; Comcare v Fiedler [2001] FCA 1810; Comcare v Moon [2003] FCA 569; and Re Bacic and Comcare [2008] AATA 465.
For the respondent, Mr Charles Clark submitted that the respondent had been surprised by Mr Anforth’s contention that the applicant’s impairment could be considered under
s 24 of the Act, in relation to the effects of his psychiatric condition. For that reason, he submitted, the respondent had not been able to appropriately litigate the matter.
He submitted that Tables 9.2 to 9.6 of the Guide were orthopaedic in nature and that only orthopaedic consequences could be relied on to allocate an impairment rating thereunder.[37] In that regard, he submitted, the applicant had a complete absence of any pathology on which any impairment rating could be based. He acknowledged that the applicant had an accepted liability for his depressive disorder and anxiety but submitted that any impairment associated with those psychiatric conditions could be assessed only under Table 5.1 of the Guide. He noted that Table 5.1 enabled impairment associated with Activities of Daily Living, including standing and moving, to be appropriately assessed under that Table. Mr Clarke noted that Dr Frederiksen declared in his evidence that he was not a psychiatrist and Mr Clarke noted the absence of any testing by Dr Low of the muscle tightness which was said by him to be a consequence of the applicant’s mental state. Mr Clarke also submitted that the applicant should be considered to be an unreliable witness because of his inconsistent accounts about the commencement and continuation of his back pain.
[37] Citing Bryant v Military Rehabilitation and Compensation Commission [2008] FCA 1424.
CONSIDERATION
We have noted Mr Clark’s reference to the unreliability of the applicant and accept that there have been some inconsistencies in his evidence, particularly in his accounts of the origin of his initial knee problem and his medical discharge documentation. However, we are satisfied that those inconsistencies are not material to our consideration of his claim.
We accept Mr Anforth’s submission that the relevance of the applicant’s psychiatric conditions to the assessment of the degree of impairment under Tables 9.5 and 9.6 of the Guide was fairly raised in the applicant’s statement of Facts, Issues and Contentions. Therein, reference was made to the effects of the applicant’s mental illness and the significance of this to making assessments under Tables 9.5 and 9.6 of the Guide.[38]
[38] In relation to Table 9.5 of the Guide, see paras 4-12; in relation to Table 9.6, see paras 15, 16.
The evidence is that the applicant displayed no pathology in the knee or the back which, taken alone, would justify an allocation of an impairment rating under Tables 9.2, 9.5 or 9.6 of the Guide. Dr Scheutz and Dr Low opined that, when the effects of the applicant’s psychiatric condition are considered, the impairment rating under Table 9.5, which relates to lower limb function, is 20%. Their opinions for the level of impairment from the lower back under Table 9.6 are 10% and 20%, respectively.
According to the Introduction to Table 9 of the Guide,[39] Tables 9.4 and 9.5 of the Guide may be applied for impairment brought about from any cause. Clearly, any such cause will be an injury or disease that has been determined to be compensable under s 14 of the Act. Mr Anforth submitted that this extended to the applicant’s psychiatric conditions. He also submitted that the broader reference to causation extended to the other Tables in Table 9 of the Guide. In that regard, he relied upon Justice Finn’s observations in Kay[40] where the Introduction to Tables 9.1 to 9.6 came under criticism. There, His Honour said:[41]
It goes without saying that the Introduction is totally inappropriately located. Where in its opening sentence it says "these Tables are intended to be used to assess impairment arising from specific joint lesions or amputations", there is no reason to interpret this as being other than the non-exhaustive identification of the role of the entirety of Table 9. I am unprepared to treat the generic reference "These Tables" as requiring other than, or as being impliedly more specific than, that. Table 9.3, obviously enough, deals with amputations and so self-identifies for the purposes of the sentence. But while it doubtless is the case that Tables 9.1 and 9.2 encompass specific joint lesions, I am not prepared to find that the Introduction on its own face limits those Tables to cases of such lesions only - the more so given the preoccupation within those Tables themselves with loss of function or movement of the joints they respectively identify. The second sentence of the Introduction gives a privileged role to Tables 9.4 or 9.5 where "joints function normally but the use of a limb is restricted for other reasons". While the rest of the Introduction contemplates that these same two Tables may be used where a joint does not function normally, the second sentence at least suggests that where joint function is not normal, those Tables do not retain their privileged role - that other Tables as well may apply.
[39] See para 4 (above).
[40] See para 21 (above).
[41] Kay at 130, 131 per Finn J.
The reference to the Introduction being applicable to “the entirety of Table 9” is supportive of Mr Anforth’s submission that an assessment of impairment will include that which results from the applicant’s accepted psychiatric injury. We note, however, that the Court, in Kay, was concerned with Tables 9.1 and 9.4 of the Guide and that references to Tables 9.5 and 9.6 were not material to the decision. Consideration must also be given to Whittaker v Comcare[42] (“Whittaker”) where the Full Court of the Federal Court also referred to the deficiencies in the drafting of Table 9 of the Guide. There, the Court noted Justice Finn’s opinion in Kay that the Introduction applies to the entirety of the Tables i.e. 9.1 to 9.6. However, the Court did not endorse the application of the Introduction to Table 9.6 of the Guide. The Court stated:[43]
Although located within Table 9.1, the first paragraph, which commences with the words "Introduction – These tables are intended ." is plainly not an introduction just to Table 9.1. One possibility is that the paragraph was intended to be an introduction to all the tables in s 9. But the content of this paragraph appears to be limited to the limbs, including limb joints. It probably should therefore be understood as an introduction only to Tables 9.1 to 9.5.
The expression "These tables" in the first sentence of this "Introduction" may be intended to refer to Tables 9.1, 9.2 and 9.3 only: those three tables deal with the assessment of impairment due to joint injuries and to amputations (although there is no requirement in Tables 9.1 and 9.2 that the impairment must arise from a specific joint lesion). Finn J, in Kay at 130, however, considered that there was no reason to read this expression in this sentence as referring to anything other than "the entirety of Table 9", that is, all of Tables 9.1 to 9.6.
Whatever be the tables to which the author of the Guide is referring in the third sentence of the "Introduction", he cannot have meant what he said about them being used to assess "the impairment of overall limb function": each of the tables in s 9 of the Guide is a method for assessing something quite different, namely, "whole person impairment". If, however, this sentence is read as referring to tables that can be used to assess whole person impairment resulting from impairment of overall limb function, on no view can the expression, "These Tables", in this sentence of the "Introduction", refer to the entirety of the Tables in s 9; it makes no reference to impairment from spinal injury (with which Table 9.6 deals). But the expression may be capable here of being read as a reference to Tables 9.1 to 9.5: between them, these five tables do enable the assessment of whole person impairment resulting from impairment of "overall limb function" from any kind of injury. However, Tables 9.4 and 9.5 are so worded as to enable the assessment of whole person impairment resulting from impairment of "overall limb function" from any cause: the expression "These tables" here can also be read as confirming that Tables 9.4 and 9.5 do themselves have this application. This is how
Finn J read this sentence in Kay at 130 – 131. The "NOTE" at the end of this first paragraph can support such a reading: it can be speculated that what the author here intends to convey to the reader is a warning that, because Tables 9.4 and 9.5 do cover the entire field of impairment assessment due to injury to any element of the upper and lower limbs, it is necessary to ensure that the assessor does not double assess, for example, that he does not assess an ankle injury under Table 9.2 and also under Table 9.5.
[42] (1998) 86 FCR 532 per Drummond, Cooper and Finkelstein JJ.
[43] Whittaker at 539.
In Whittaker, the relevant Tables were 9.2 and 9.5 of the Guide rather than Table 9.6 thereof. Counsel were unable to identify any authority which extended the application of Table 9.6 in the manner submitted by Mr Anforth.[44] In those circumstances, we are persuaded by the dicta in Whittaker in so far as Table 9.6 is concerned. This means that any impairment which results from the applicant’s psychiatric condition will not be considered under Table 9.6 of the Guide. The position is different with Table 9.5 of the Guide which, in accordance with the Introduction, “can be used to assess the impairment of overall limb function from any cause”.
[44] Department of Public Works v Morrow (1986) 5 NSWLR 166 was referred to by Mr Anforth but it relates to the Workers’ Compensation Act 1926 (NSW).
We have noted Mr Clarke’s submission that psychiatric impairment must be assessed under Table 5.1 of the Guide rather than under Table 9. That Table, in the majority of its impairment levels, refers to the need for “supervision and direction in activities of daily living”. The Glossary to the Guide provides the following meaning to the term “activities of daily living”:
Activities of daily living are those activities that an employee needs to perform to function in a non-specific environment ie: to live. The measure of activities of daily living is a measure of primary biological and psychosocial function. They are:
·Ability to receive and respond to incoming stimuli
·Standing
·Moving
·Feeding (includes eating but not the preparation of food)
·Control of bladder and bowel
·Self care (bathing, dressing etc)
·Sexual function
That term includes a reference to standing and moving but, generally, is concerned with the assessment of primary biological and psychosocial function impairment rather than the specific aspects of musculo-skeletal functioning which is the focus of Table 9 of the Guide.
Impairment under Table 9.5 of the Guide
The evidence of Dr Low and Dr Scheutz was that the impact of the applicant’s psychiatric condition is manifested through muscular tension and the consequential limitations of movement. We note that they examined the report of Dr Matthews prior to preparing their own reports about the applicant’s impairment. Dr Scheutz’s examination of the applicant revealed muscle tension and it was on that basis that he reached his conclusions. We have concerns with the evidence of Dr Low and his reference to muscle tension. He did not test the applicant for that phenomenon. Rather, his conclusion was based on an inference he drew from muscular tension displayed during his examinations of other persons with a psychiatric condition. His conclusion in those terms is not a reliable one in so far as it applies to the applicant. Nonetheless, he also concluded that the only logical explanation for the applicant’s limitations was based on his psychiatric condition. Given that he found the applicant to be genuine in his presentation of symptoms, and given that Dr Low was informed by the report of Dr Matthews, that opinion becomes relevant. We consider his opinion, on that basis, to be a more reliable expression of the applicant’s lower limb limitations, due to his psychiatric condition, than the one based on the inference he drew from other examinees.
The evidence of Dr Scheutz and Dr Low in respect of the criteria in Table 9.5 of the Guide is set out above. On the basis of their investigations, they each assessed the applicant’s lower limb function impairment at 20% under that Table. They noted levels of difficulty as provided for at the 20% level in that Table and we do not accept that their opinions were based on an absence of objective assessment.[45]
[45] See paras 9, 12 and 13 (above).
Both Dr Frederiksen and Dr English have also confirmed an absence of pathology in relation to the applicant’s left knee. In their reports, they concluded that no impairment ratings could be allocated to them. In their oral evidence, they did not deny a connection between the applicant’s lower limb function and mental state. However, they described it in terms of a possibility rather than anything higher. They were also aware of the opinion of Dr Matthews concerning the applicant’s psychiatric condition. Dr Frederiksen accepted that the applicant’s lower limb and back function was affected by his mental state and opined that a thorough psychiatric evaluation was required. Both Dr Frederiksen and Dr English expressed the opinion that the applicant’s lower limb and back symptoms were likely to last as long as his psychiatric state. As we understand it, the respondent has accepted the applicant’s psychiatric conditions as being permanent and, indeed, have assessed him as having a 40% level of impairment under Table 5.1 of the Guide.
We are satisfied that none of the medical evidence dismisses a relationship between the applicant’s psychiatric state and his lower limb function. While, Dr Frederiksen and
Dr English are supportive of a possible connection, Dr Scheutz and Dr Low are more supportive of the relationship and also confirm that his impairment of lower limb function is permanent. We also note that his mental state has been determined by the respondent to be a permanent condition. We are satisfied that the impairment from the accepted orthopaedic conditions in the applicant is permanent for the purposes of applying s 24 of the Act. In Re Russell and Comcare,[46] Deputy President Forgie determined that the expression "results in", as it appears in s 24 of the Act, requires a causal link between the injury and the employee's permanent impairment. The Deputy President relied on the judgement of du Parcq LJ in the Court of Appeal decision of Rothwell v Caverswall Stone Co Ltd [47] where His Honour said:
In my opinion, the following propositions may be formulated upon the authorities as they stand: first, an existing incapacity 'results from' the original injury if it follows, and is caused by, that injury, and may properly be held so to result…
[46] [2000] AATA 243.
[47] [1944] 2 All ER 350 at 365 per du Parcq LJ who formed a majority with Luxmoore LJ, Scott LJ dissenting.
That supports the submission of Mr Anforth that the issue of whether the injury results in the impairment under s 24 of the Act is one of fact.
We are satisfied that the applicant’s orthopaedic and psychiatric conditions, which have been determined to be compensable under the Act, have resulted in an impairment of 20% under Table 9.5 of the Guide.
Impairment under Table 9.6 of the Guide
The medical evidence in this matter is that the applicant has no demonstrated pathology in his lumbar spine and that the limitation he experiences in the range of his spinal movement is related to his mental state. The opinions of Dr Scheutz and Dr Low are that the applicant’s range of movement loss equates to the criteria at the 10% and 20% levels, respectively, under Table 9.6 of the Guide. As we understand their evidence, this was based on limitations imposed on the applicant by his psychiatric conditions.
Dr Frederiksen and Dr English based their opinions of a 0% rating under Table 9.6 of the Guide on orthopaedic considerations only. As we have determined above, psychiatric factors play no part in the assessment of impairment under Table 9.6 of the Guide and we are satisfied that the appropriate rating under that Table is 0%.
DECISION
The Tribunal sets aside the decision under review and decides in substitution that the applicant’s injuries have resulted in 20% and 0% impairment under Tables 9.5 and 9.6 of the Guide, respectively.
I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member and Dr G J Maynard, Brigadier (Rtd), Member ................................[Sgd]........................................
Associate
Dated 24 September 2013
Dates of hearing 26, 27 August 2013 Counsel for the Applicant Mr Allan Anforth Solicitor for the Applicant Mr James Pattison, Watt & Severin Solicitors Counsel for the Respondent Mr Charles Clark Solicitor for the Respondent Mr Gary Power, Australian Government Solicitor
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