Whiteman Applicant And Australian Postal Corporation

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

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 6^th 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 5^th edition because no one understands the 6th edition and it is not generally used.  Neither party takes issue with use of the 5^th 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…