Whiteman Applicant And Australian Postal Corporation
[2010] AATA 645
•27 August 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 645
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/4084
GENERAL ADMINISTRATIVE DIVISION ) Re Cheryl Whiteman Applicant
And
Australian Postal Corporation
Respondent
DECISION
Tribunal Senior Member Jill Toohey
Dr M Thorpe, Member
Date27 August 2010
PlaceSydney
Decision The decision under review is affirmed.
...............[sgd]...............................
Senior Member
CATCHWORDS
COMPENSATION – left shoulder injury – arthroplasty - degree of permanent impairment – which Impairment Table appropriate – whether Tables 9.11 and 9.14 are alternatives – use of the American Medical Association Guides – degree of permanent impairment less than 10% - decision under review affirmed
Safety, Rehabilitation and Compensation Act 1988, ss 4, 14, 24, 27, 28
Slattery and Comcare [2010] AATA 56
REASONS FOR DECISION
27 August 2010 Senior Member Jill Toohey
Dr M Thorpe, MemberIntroduction
1. Cheryl Whiteman was working as a postal officer for the respondent, Australian Postal Corporation, on 24 July 2004 when she injured her left shoulder while lifting a heavy parcel.
2. The respondent accepted liability under s 14 of the Safety, Rehabilitation and Compensation Act1988 (the Act) for the incapacity for work that resulted from Ms Whiteman’s injury but rejected her claim for permanent impairment and non-economic loss. Ms Whiteman seeks review of that decision.
3. The respondent will be liable to pay compensation to Ms Whiteman if she has suffered an injury, as defined, that results in permanent impairment of 10% or more: subsections 24(1) and (7) of the Act. Permanent means likely to continue indefinitely: s 4.
4. If compensation is payable under s 24, then the respondent will also be liable to pay compensation to Ms Whiteman for any non-economic loss suffered as a result of the injury: s 27(1).
5. The degree of an employee’s permanent impairment is determined by reference to the criteria in the Comcare Guide to the Assessment of the Degree of Permanent Impairment 2005 (the Guide): s 28.
6. The respondent accepts, and we are satisfied on the medical evidence, that Ms Whiteman has been left with a permanent impairment of her left shoulder as a result of the injury she suffered at work on 29 July 2004. However, the respondent contends that lump sum compensation is not payable to Ms Whiteman because the degree of her permanent impairment is less than 10%.
The issue
7. We have to determine the degree of permanent impairment of Ms Whiteman’s left shoulder. In doing so, a number of issues arise concerning how the Guide is to be interpreted and applied.
Ms Whiteman’s evidence
8. Ms Whiteman is left-handed. She was lifting a heavy parcel at work when she realised it was too heavy and felt a pull in her neck and across her left shoulder. She was able to complete her shift but was experiencing painful symptoms by the time she arrived home. The following day, her general practitioner, Dr Peter Beiers, referred her for physiotherapy. Her symptoms persisted and, from 6 September 2004, her hours were reduced to five hours per day.
9. On 21 September 2004, Dr John Graham, occupational physician, diagnosed a “reasonably straightforward case of impingement syndrome in the left shoulder following a mechanical injury/strain”.
10. On 28 October 2004, Dr David Rodd, shoulder physician, reported to Dr Beiers that Ms Whiteman had three problems secondary to her injury: “a very irritable [acromioclavicular joint], cervico brachial irritability involving the left side of her neck, and a mild to moderately irritable left shoulder impingement syndrome.”
11. In February 2005, Dr Stephen Kemp, hand and upper limb surgeon, performed a left arthroscopic acromioplasty and excision of the distal clavicle. Ms Whiteman was off work for three months after surgery and then returned to a graduated return to work.
12. After about three months after she had resumed full-time work, Ms Whiteman decided to cease full-time work and work part-time, for 25 hours per week. She says her supervisor at the time was not sympathetic to her impairment but her decision to work part-time was not related to her impairment as such (and Australia Post documents confirm that it was for “personal” reasons). She now works shifts of five hours, from 12pm to 5pm, alternating between 28 hours one week and 22 hours the next.
13. Ms Whiteman’s current treatment consists of a heat pack and anti-inflammatory medication. Depending on the pain, she takes up to two tablets every three hours, approximately three times a week.
14. Ms Whiteman gave evidence that her capacity to lift weights remains restricted, although it has increased so that she can now lift approximately six to eight kilograms. She struggles to lift weights over 8kg straight up from the floor but can manage if the weight is at waist height to start with. She needs help with heavier weights, and tasks such as tying off mailbags she does not do at all. She now uses a right-handed computer.
15. As regards housework, Ms Whiteman’s capacity is now restricted. She needs her partner’s help to hang out heavy washing such as towels and to lift their heavy mattress to change sheets. She does not claim that she cannot do these tasks, rather that she avoids them because they cause problems in her shoulder. She now vacuums using her right hand and arm, rather than her left. She cooks but cannot do some things such a cutting up a pumpkin. She cannot carry a heavy shopping bag in her left hand. If she lifts her arm above shoulder height she gets severe pain.
16. Ms Whiteman has had to make several modifications to her lifestyle and her home in order to accommodate her impairment, including buying an automatic car because she had difficulty changing gears in her manual car. She has had the shelves in her kitchen lowered to avoid extending her arm to reach things above shoulder height. She has had the front gate cut down so that she can reach the latch to open and close it and has had the clothes line lowered so she can reach it. She has moved the toilet roll holder to the other side so she can use her right hand to reach it, and she has had to moved shampoos and bathroom products to a caddy at lower height. She can no longer play golf because of pain in her arm.
17. For a couple of months after the arthroscopy in February 2005, Ms Whiteman could not get her left arm into clothes and needed help dressing and undressing. She gave evidence that her movement is still restricted but she now has a longer time in which to dress, because of her work hours, and she is not pushed for time. She says she is now “slightly slower” putting on her underclothes. She does her brassiere up at the front rather than reaching around to the back, and this takes “a little longer”, although she could not estimate just how long it takes. She sits down to put on trousers, which takes “just a little bit longer” than previously. It takes about the same time as previously to put on a shirt but it is more awkward now. She no longer reaches down to put her socks on but finds it easier to lift her left foot on to her right knee. She ties her shoelaces differently now which takes “a little longer”.
18. Ms Whiteman estimates that it now takes her maybe 25 minutes to dress herself whereas previously it took her “no time at all”. She estimates it now takes her about half and hour to do her make-up and hair whereas previously it took her 15 to 20 minutes. She can still put on her earrings and she can put on makeup much the same as before. She now brushes her hair with her right hand rather than lifting her left arm and she uses a lighter hairdryer which she hangs from the towel rail, because she cannot raise it in her left arm.
The Guide to the Assessment of the Degree of Permanent Impairment 2005
19. The Guide is a legislative instrument issued pursuant to s 28 of the Act. The second edition, issued in 2005, is currently in force. Its provisions are binding on the Tribunal: s 28(4).
20. An employee’s degree of permanent impairment is assessed by reference to tables in Division 1 of Part 1 of the Guide which are assembled in groups, according to body system. Part 1 is based on the concept of whole person impairment (WPI) which is drawn from the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the AMA Guides).
21. The Guide includes general principles of assessment and instructions about its application, as well as instructions on how to use particular tables to assess various impairments. Consistent with the beneficial nature of the Act, unless there are instructions to the contrary, where two or more tables, or combination of tables, are equally applicable, the decision-maker must assess the impairment by reference to the table which yields the more favourable result (or tables which yield the most favourable result) to the employee: the Guide p 13.
22. Part II of Chapter 9 of the Guide concerns The Upper Extremities: Hands and Fingers, Wrists, Elbows and Shoulders. The Introduction to Part II states:
If the medical assessor feels that the impairment is not adequately assessed using one of Tables 9.9, 9.10 and 9.11, and the condition involves radiographically demonstrated joint instability, radiographically demonstrated arthritis or where the employee has had an arthroplasty, the medical assessor may consider the effects of the injury on upper extremity function instead, and determine the WPI rating using Table 9.14.
23. Table 9.11 (Shoulders) comprises three sub-tables and is used to assess impairments to range of motion of the shoulders. The instructions in relation to Table 9.11 state:
Where an arthroplasty procedure has been undertaken, refer to the edition of the [AMA Guides] current at the date of assessment. Combine the total WPI rating for abnormal motion with the relevant WPI rating for arthroplasty, obtained from the [AMA Guides].
24. Table 9.14 (Upper Extremity Function) is used to assess the function of the entire upper extremity. It commences with the instructions:
Before using Table 9.14 the medical assessor should read the instructions (see Part II – Introduction, page 86) preceding the specific joint impairment tables (Tables 9.8-9.11). Table 9.13 is used strictly in accordance with those instructions.
Table 9.14 is an alternative table, which may be used instead of the specific orthopaedic or neurological table or tables. It is important to note that Table 9.14 assesses the function of the entire upper extremity.
25. The questions arise whether Tables 9.11 and 9.14 are alternatives, or whether an assessment must be made that Table 9.11 is inadequate before recourse may be had to Table 9.14 and, if so, what that assessment requires. A question also arises as to which ratings are to be combined when using Table 9.11 when an arthroplasty has been undertaken.
The AMA Guides
26. If an employee’s impairment is of a kind that cannot be assessed in accordance with Part 1 of the Guide, the assessment is to be made using the edition of the AMA Guides current at the time of the assessment: the Guide p 14.
27. Where a condition cannot be assessed under a specific table in the Upper Extremities group, it may be made under the provisions in the AMA Guides current at the date of assessment: the Guide p 86.
28. In some cases, including where an arthroplasty procedure has been performed, the Guide directs the assessor to the AMA Guides.
29. In Slattery and Comcare [2010] AATA 56, the Tribunal had to determine which edition of the AMA Guides was current. The 6th edition was published in December 2007 but, as happened in Slattery, we heard from Professor Leon Kleinman, who assessed Ms Whiteman, that he relied on the 5th edition because no one understands the 6th edition and it is not generally used. Neither party takes issue with use of the 5th edition. In Slattery, the Tribunal interpreted “current edition” in relation to the AMA Guides to mean in current usage rather than currently in force. At [42-45] the Tribunal set out its reasons. We agree with those reasons and adopt them here.
Are Tables 9.11 and 9.14 alternatives
30. Ms Whiteman was assessed by Professor Kleinman at the request of her solicitors. She was assessed by Dr Neil McGill, rheumatologist, at the request of the respondent.
31. Dr Kleinman initially assessed Ms Whiteman’s injury by reference to Table 9.11 and, later, at the request of her solicitors, by reference to Table 9.14. Dr McGill assessed her using only Table 9.11.
32. Ms Whiteman contends that Table 9.14 is the appropriate table for her impairment and may be used as an alternative to Table 9.11. The respondent contends that her impairment is properly to be assessed by reference to Table 9.11 only.
33. Ms Whiteman contends that the reference in the instruction to Table 9.14 that it is “an alternative table which may be used instead of the specific orthopaedic or neurological table” means that, so long as the assessor has reasonably formed the view as to the appropriateness of Table 9.14, the more beneficial rating may be adopted. We do not agree.
34. The language of the introduction to Part II is clear: if the assessor feels that the impairment is not adequately assessed using Table 9.11 and the employee has had an arthroplasty, the assessor may use Table 9.14 instead.
35. The language of the instructions accompanying Table 9.14 is equally clear: before using Table 9.14 the assessor should read (and, implicitly, follow) the instructions preceding Table 9.11; Table 9.14 is to be used strictly in accordance with those instructions.
36. Merely because the Act is beneficial legislation does not permit the assessor to look at both tables and decide which is the more beneficial. To do so would be to ignore the combined effect of the clear instructions in the tables. It is relevant that the instruction in the Introduction to Part II is that the table which yields the more favourable result must be used where two or more tables are equally applicable.
37. The reference to Table 9.14 as an “alternative table” must be read in context, in particular of the paragraph in which it appears, which mainly concerns how different ratings may be combined and compared. The use of “alternative” here does not, in our view, overcome the requirement to consider Table 9.11 first.
38. Nor do we read the sentence which starts “Consequently, for the purposes of ascertaining the most beneficial WPI rating for the same upper extremity …” to mean that either table may be selected. Rather, it goes to what combination of ratings is most beneficial. Of course, if use of Table 9.14 is permitted, then Ms Whiteman is entitled to the benefit of whichever table is more favourable.
39. Counsel for Ms Whiteman contends that Table 9.11 is inadequate for an assessment of her impairment because it assesses range of motion only, and not function. We do not accept that submission. Table 9.11 provides for degrees of shoulder flexion/extension (9.11.1a), internal/external rotation (9.11.1b) and abduction/adduction (9.11.1c) ranging to zero. Some loss of function would almost certainly accompany such restricted range of motion. If recourse to Table 9.14 is needed on the basis that assessment of loss of function is necessary, Table 9.11 could have little, if any, work to do.
40. In our view, a proper reading of the relevant instructions in the Guide leads to the conclusion that an assessor must form the view (“feel”) that the impairment is not adequately assessed under Table 9.11 before resorting to Table 9.14.
41. Having said that, all that is required is that the assessor feels that Table 9.11 is not adequate for the assessment. We accept the submission of counsel for Ms Whiteman that one should not undertake a rigorous examination of the assessor’s reasoning process. Nevertheless, the assessor must turn his or her mind to the question and arrive at that feeling. It is implicit that the feeling will be based on something rational and reasonable.
Professor Kleinman’s evidence
42. As already noted, Professor Kleinman initially assessed Ms Whiteman by reference to Table 9.11. He subsequently assessed her by reference to Table 9.14 at the invitation of her solicitors.
43. On 7 June 2007, Professor Kleinman assessed Ms Whiteman’s shoulder impairment by reference to Table 9.11.1a, 1b and 1c as 3% WPI. (He also assessed an injury to her cervical spine but that no longer forms part of this application).
44. On 4 November 2009, Professor Kleinman reported that, using the AMA Guides, Ms Whiteman had a 5% upper extremity impairment (figure 16.40 3% UEI; figure 16.43 1% UEI; figure 16.46 1% UEI) which equated to 3% WPI. (He determined a WPI figure taking into account her cervical spine but that is not relevant here). Assessing her shoulder by reference to Table 9.11 in the Guide, she had a 4% WPI, increased from his previous assessment of 3% because of a decreased degree of flexion.
45. On 11 January 2010, at the request of her solicitors, Professor Kleinman assessed Ms Whiteman using the AMA Guides and determined that she had 5% upper extremity impairment (figure 16.40 3% UEI; figure 16.43 1% UEI; figure 16.46 1% UEI); she had a 10% impairment for the arthroplasty, giving a total upper extremity impairment of 15% which, on the relevant table in the AMA Guides, equates to a 9% whole person impairment.
46. In a report dated 4 November 2009, Professor Kleinman wrote that Ms Whiteman’s impairment “is not adequately assessed using … [Table] 9.11 which is related to the shoulder joint”. He “felt that using Table 9.14, Upper Extremity Function, better expressed the problems that [she] was having in terms of limitation of lifting weights because Table 9.11 only describes a range of motion and does not take function into consideration”.
47. Before the Tribunal, Professor Kleinman agreed that he was “comfortable” with his initial assessment, that it was a true reflection of Ms Whiteman’s impairment, and there was nothing wrong with his earlier assessment. However, he considered Table 9.14 better assessed her impairment for the reasons in his report date 4 November 2009.
48. Professor Kleinman agreed that, other than reflecting Ms Whiteman’s limitation on lifting weights, Table 9.14 had nothing to add for the purpose of assessing her impairment. He agreed in cross-examination that Ms Whiteman’s difficulty lifting weights was related to the arthroplasty she had undergone. He agreed that all persons who undergo arthroplasty are advised to limit the weights they lift. He agreed that Table 9.11 obliges the assessor to refer to the AMA Guides where a person has undergone arthroplasty.
Dr McGill’s evidence
49. When Dr McGill first assessed Ms Whiteman in December 1998, he did so in accordance with Table 9.11 but without reference to the AMA Guides (see [24] above). Before the Tribunal he readily agreed that this was an error on his part because Ms Whiteman has undergone arthroscopy. He has since assessed her again using the AMA Guides for arthroscopy.
50. It was submitted for the respondent that we cannot have confidence in Dr McGill’s assessment by reason of this failure. We do not agree. Dr McGill recognised the error and has now undertaken the assessment in accordance with the instructions in Table 9.11. Given his expertise and experience in this field, we attach no significance to this oversight.
51. Dr McGill gave evidence that Table 9.11 is the most specific to Ms Whiteman’s shoulder impairment and is appropriate and adequate to assess it. It would not be appropriate where a combination of pathologies was involved, such as where the injury also involved the muscles or nerves around the shoulder as well as the shoulder joint. For instance, an arthroplasty involving insertion of a prosthesis could make Table 9.14 appropriate. However, Ms Whiteman’s problems are related to the acromioclavicular joint, where she had surgery, and there is no suggestion of any other problem compounding the issue. In his view, Table 9.11 is “perfectly appropriate” to assess her impairment and he has no reason to consider assessment under Table 9.14.
52. Counsel for Ms Whiteman contends that Dr McGill did not properly analyse and assess the condition with which Ms Whiteman presented. He contends that Dr McGill should have determined whether Table 9.11 was adequate by reference to an assessment under Table 9.14. We do not agree. An assessment of the adequacy of Table 9.11 stands on its own. The approach contended for amounts to determining which table is more favourable and that is not what the tables require in this case.
53. In his first report in December 2008, Dr McGill stated that it was reasonable to accept that Ms Whiteman “continues to experience some genuine discomfort” from the left shoulder joint region. He noted that Dr Kemp had recorded full range or movement twice in 2006 and thought some “embellishment” by Ms Whiteman was possible. However, he considered she had physical restrictions because of her left shoulder: she should not try to lift in excess of 10 kilograms and she should not perform repetitive at, or above, shoulder height work; she was fit to perform her current duties and did not claim that her symptoms had prevented her from continuing to work full time before she elected to reduce her hours to part-time. He noted that she had not had any treatment other than occasional analgesia in the last couple of years. He rated Ms Whiteman’s impairment by reference to Tables 9.11.1a, 1b and 1c as 2% WPI.
54. On 7 March 2010, Dr McGill revised his assessment and included reference to the AMA Guides. He considered that “with respect to Table 9.11 she has 2% upper extremity impairment (figure 16.40 1% UEI, figure 16.43 1% UEI, figure 16.46 nil UEI). On the basis of having had an arthoplasty … she has 10% upper extremity impairment (AMA (5) page 506)”. The references to figures 16.40 and so on are from the AMA Guides.
55. Dr McGill assessed Ms Whiteman’s “total upper extremity impairment with respect to the left shoulder is 12% which equates (using table 16.3, page 439) with 7% whole person impairment.
56. Dr McGill acknowledged some uncertainty about how the instruction in Table 9.11 for combining the assessments under the Guide and the AMA Guides should be interpreted, and he was not sure he had had occasion to do so in the past. However, he thought it reasonable to work out the WPI from the Guide and combine it with the WPI for arthroplasty from the AMA Guides although he acknowledged that is not what the AMA Guides indicate when the WPI is performed according to its instruction.
57. In oral evidence, Dr McGill agreed that, combining the WPIs from both guides would give 6% WPI for arthroplasty (converted under the AMA Guides from 10% upper extremity impairment) plus 2% upper extremity impairment (calculated as at [56] above), would give Ms Whiteman a total WPI of 8%.
Application of Table 9.11 - consideration
58. Professor Kleinman’s concessions (at paragraphs [47] and [48] above) suggest that he should have conceded Table 9.11 adequate to assess Ms Whiteman’s impairment. However, all that is required is that he feel that Table 9.11 is inadequate. He has given his reasons for arriving at that position. Having reached that position, it was open to him to undertake an assessment using Table 9.14. We consider his assessment further below.
59. The instructions to Table 9.11 make clear that the rating where an arthroscopy has been undertaken is by reference to the AMA Guides. It is uncontentious that the WPI for arthroscopy in the AMA Guides is 6%.
60. Professor Kleinman and Dr McGill approached the rest of the assessment under Table 9.11 slightly differently. In our view, the approach adopted by Professor Kleinman in his report of 11 January 2010 is correct. The instructions to Table 9.11 refer the assessor to the AMA Guides and directs the assessor to combine the WPIs obtained from them. Having decided that Table 9.11 is adequate, the assessor is directed to undertake the entire assessment according to the AMA Guides where a person has undergone arthroplasty. We do not think Dr McGill’s approach to this aspect of the assessment is correct.
61. Adopting this approach, and accepting Professor Kleinman’s ratings, Ms Whiteman’s whole person impairment is 9% and her claim must fail. If we prefer Dr McGill’s rating, her claim still cannot succeed. If assessed by reference to Table 9.11 only, Ms Whiteman’s claim must fail.
62. The only way in which Ms Whiteman’s claim can succeed using Table 9.11 is by combination of Professor Kleinman’s assessment of 4% WPI from Table 9.11 with 6% from the AMA Guides. For the reasons given, we do not think that approach is correct.
Professor Kleinman’s assessment using Table 9.14
63. The instructions to Table 9.14 state:
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.
64. The minor criteria expand on, and to some extent explain, the major criteria but they must be assessed and satisfied individually.
65. Ms Whiteman contends that she meets the following criteria:
Major Moderate limitations in use of extremity for personal care
Minor Cannot lift more than 10 kilograms
Dresses slowly unassisted
66. Using Table 9.14, Professor Kleinman assessed Ms Whiteman’s impairment as 10% based on her inability to lift more than 10 kilograms and because she dresses slowly unassisted.
67. Table 9.14 attributes ratings according to whether the extremity is dominant or non-dominant. We accept the submission for Ms Whiteman that we have to determine the correct rating for the impairment to her left arm (dominant extremity) and not the degree of impairment she has if she uses her right arm instead.
68. In relation to the major criterion contended for, it was submitted for Ms Whiteman that “personal” care should be construed broadly to encompass the range of limitations she has at home. For the respondent, it is submitted that “personal” care is limited to things such a dressing, makeup, personal hygiene and so on, and does not include limitations on housework, which is “domestic” care.
69. “Personal” means: 1. one’s own; individual; private. 2. done or made in person. 3. directed to or concerning an individual. 4. referring (esp. in a hostile way) to an individual’s private life or concerns. 5. of the body and clothing. “Domestic” means: of the home, household, or family affairs: Australian Oxford Dictionary, 2002.
70. The words in the Table should be read broadly and beneficially. We accept that we should take all of the limitations Ms Whiteman described at home, including relating to dressing and housework, as “personal care”. The question then is whether she has moderate limitations in the use of the upper extremity. The Guide gives no guidance about this.
71. We accept Ms Whiteman’s evidence about the modifications she has had to make at home and the changes she has made in her personal habits to accommodate her impairment. Dr McGill thought some embellishment was possible but he considered Ms Whiteman would feel some “genuine discomfort”.
72. In relation to the major criterion contended for, in cross-examination Professor Kleinman agreed that Ms Whiteman has “some limitation of the action of the left shoulder”. He did not expand and his assessment of this criterion is not clear. The line between “minor” and “moderate” limitations in the use of the extremity for personal care as set out in Table 9.14 is not always easy to draw. However, on balance, we are prepared to accept that Ms Whiteman experiences moderate limitation.
73. In relation to the minor criteria contended for, Professor Kleinman based his assessment of the weight Ms Whiteman can lift primarily on the report of her general practitioner, Dr Peter Beiers, who in June 2007 said she was restricted to 8 kilogram weights. Professor Kleinman did not test her capacity himself. Ms Whiteman’s evidence is that she cannot life more than 8 kilograms. There was some dispute at the hearing about whether the assessment should be of her capacity to life weights with her arm extended but we do not think this is material.
74. In relation to dressing herself, we question Ms Whiteman’s assessment of the time it takes her now to dress and do her hair and makeup. Her evidence was that each part of her dressing and toilet takes “a little longer” or “slightly longer”. We have no evidence about how long is “normal”. Mr Vincent submitted that we can rely on our own experience of what is normal and slow. We agree in principle but are not sure how far our own experience takes us.
75. The relevant criterion is not dresses more slowly, but dresses slowly. Ms Whiteman’s evidence was that it now takes her maybe 25 minutes to dress whereas previously it took her “no time at all”. It is difficult to reconcile her evidence: either she takes less than 25 minutes now, or she was relatively slow previously. We are not satisfied that Ms Whiteman meets this criterion.
76. The evidence does not support a finding that Ms Whiteman satisfied any of the other minor criteria necessary for 10% WPI. We heard evidence that it takes her “a little longer” to do up her shoelaces but there is no evidence that she cannot do so. There is no evidence that she satisfied the other minor criteria in regards to writing and joining paperclips. We find that her impairment is properly rated 5% on Table 9.14
Conclusion
77. Tables 9.11 and 9.14 are not alternatives in the sense that the more beneficial may be applied.
78. Properly assessed by Table 9.11, as Professor Kleinman did, Ms Whiteman’s impairment is less than 10% and cannot succeed.
79. The adequacy of Table 9.11 is not assessed by reference to Table 9.14. However, having formed the view that Table 9.11 was inadequate to assess, it was open to Professor Kleinman to assess Ms Whiteman’s impairment by reference to Table 9.14.
80. Ms Whiteman does not satisfy the necessary major and minor criteria in Table 9.14 for her impairment to be rated 10%.
81. We affirm the decision under review.
I certify that the 81 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Jill Toohey and Dr M Thorpe.
Signed: ……[sgd]…..………………
Diana Weston, Associate
Dates of hearing: 16 March 2010 and 17 March 2010
Final submissions received: 22 April 2010
Date of decision: 27 August 2010Solicitor for the Applicant: Mr Stephen Lott, Bale Boshev Lawyers
Counsel for the Applicant: Mr Mark Vincent
Solicitor for the Respondent: Ms Donna Hatton, Litigation Section, Australian Postal Corporation
Counsel for the Respondent: Mr Matthew Gollan
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