Whiteman v Australian Postal Corporation
[2011] FCA 1427
•14 December 2011
FEDERAL COURT OF AUSTRALIA
Whiteman v Australian Postal Corporation [2011] FCA 1427
Citation: Whiteman v Australian Postal Corporation [2011] FCA 1427 Appeal from: Whiteman v Australian Postal Corporation [2010] AATA 645 Parties: CHERYL WHITEMAN v AUSTRALIAN POSTAL CORPORATION File number: NSD 1246 of 2010 Judge: FOSTER J Date of judgment: 14 December 2011 Catchwords: ADMINISTRATIVE LAW – whether, upon the true interpretation of the Guide to the Assessment of the Degree of Permanent Impairment (2nd ed, 2005) made under s 28 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), (the Comcare guide) in circumstances where an arthroplasty procedure has been undertaken, the assessment and calculation of the total whole person impairment (WPI) rating for abnormal motion in respect of a claimant who had a work-related shoulder injury and the assessment and calculation of the relevant WPI rating for arthroplasty are both to be undertaken by reference to the current edition of the American Medical Association’s Guides (the AMA guide) or, alternatively, whether the first of these rating calculations is to be undertaken by reference to the Comcare guide and the second of these rating calculations is to be undertaken by reference to the AMA guide and the two ratings combined by reference to the relevant Combined Values Chart forming part of the Comcare guide Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s 44
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 13, 14, 24, 27 and 28Cases cited: Comcare v Broadhurst [2011] FCAFC 39 cited
Roncevich v Repatriation Commission (2005) 222 CLR 115 appliedDate of hearing: 1 March 2011 Date of last submissions: 4 April 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 59 Counsel for the Applicant: Mr M Vincent Solicitor for the Applicant: Bale Boshev Lawyers Counsel for the Respondent: Mr MJ Gollan Solicitor for the Respondent: Sparke Helmore
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1246 of 2010
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: CHERYL WHITEMAN
ApplicantAND: AUSTRALIAN POSTAL CORPORATION
Respondent
JUDGE:
FOSTER J
DATE OF ORDER:
14 DECEMBER 2011
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The applicant pay the respondent’s costs of and incidental to the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1246 of 2010
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: CHERYL WHITEMAN
ApplicantAND: AUSTRALIAN POSTAL CORPORATION
Respondent
JUDGE:
FOSTER J
DATE:
14 DECEMBER 2011
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicant is employed by the respondent as a postal worker.
On 29 July 2004, the applicant injured her left shoulder at work when she lifted a heavy parcel. On 10 August 2004, she made a claim on her employer under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). On 12 August 2004, liability was accepted under s 14 of the Act for “[a] sprained left shoulder”.
On 7 February 2005, an arthroplasty was performed on the applicant’s left shoulder.
On or about 17 April 2008, the applicant made a claim under s 24 of the Act for compensation for permanent impairment of her left shoulder. In the claim form, the applicant stated that:
(a)As at March 2008, she was experiencing pain in her shoulder most of the time; that the pain restricted activities which she normally carried out; and that the injury was resistant to treatment.
(b)As at March 2008, she was experiencing recurring neck and shoulder pain especially when raising her left arm above her head and when lifting objects.
By letter dated 2 May 2008, the respondent determined that no compensation was payable for permanent impairment. In that letter, the respondent explained its decision as follows:
I note the report provided by Dr L Kleinman dated 7 June 2007 which assesses a total whole person impairment of 11% for a combined left shoulder condition and cervical spine symptoms. Dr Kleinman has combined tables for impairment of the left shoulder with that of the cervical spine.
In the initial claim for compensation your client made claim for a left shoulder strain injury. A specialist report from Dr J Graham dated 21 September 2004 diagnosed “impingement syndrome in the left shoulder.”
In his report of 7 June 2007 Dr Kleinman reports Mrs Whiteman as having degenerative changes at both C3/4 and C4/5 of the cervical spine. In an earlier diagnostic assessment of 12 November 2004, your client was reported as having “prominent degenerative change in the C3/4 apophyseal joint on the left side.”
A review of all the specialist opinion provided I do not consider establishes that Mrs Whiteman’s current cervical symptoms can be directly related to the injury of July 2004. The evidence does support that any referred pain and restriction of movement to the left side of the neck are related to her compensable shoulder condition. Any specific restrictions to the neck are degenerative in origin and I do not consider therefore that an assessment under Table 9.15 can be combined with other tables for the left shoulder.
Your client’s whole person impairment must be considered therefore, taking the assessment of Dr Kleinman under Tables 9.11 as appropriate, as being 3% due to work related factors.
Section 24 of the above Act states that compensation is not payable in respect of permanent impairment where the degree of that impairment is less than 10%.
The available evidence indicates that the impairment suffered by Mrs Whiteman is less than 10%. I therefore determine that your client is not entitled to the payment of compensation under sections 24 and 27 of the Act.
On 25 June 2008, the respondent’s determination was affirmed on reconsideration.
On 1 September 2008, the applicant sought review of the reconsideration decision in the Administrative Appeals Tribunal (the Tribunal). She claimed that that decision was:
Against the weight of medical and lay evidence.
The Tribunal heard the matter on 16 and 17 March 2010. The Tribunal had before it several medico-legal reports from Associate Professor Leon Kleinman, orthopaedic surgeon, who had been retained by the solicitors for the applicant to provide expert reports as to the applicant’s condition. In his report dated 4 November 2009, Dr Kleinman assessed the applicant as having 4% whole of person impairment (WPI) by reason of the injury to her left shoulder. That conclusion was reached by Dr Kleinman by applying Tables 9.11.1a, 9.11.1b and 9.11.1c of the Comcare Guide to the Assessment of the Degree of Permanent Impairment, 2nd Edition (the Comcare guide). In that report, Dr Kleinman said:
Her impairment is not adequately assessed using Table 9.9, which relates to the wrist joint, 9.10 which relates to the elbow joint or 9.11 which is related to the shoulder joint. I felt that using Table 9.14, Upper Extremity Function, better expressed the problems that Ms Whiteman 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.
Assessing Ms Whiteman according to the AMA Guides to the Evaluation of Permanent Impairment, 5th Edition:-
Using Chapter 15, Page 392 Table 15 – 5, her cervical spine falls into DRE Cervical Category II, on the basis that she has a clinical history and examination findings compatible with a specific injury, no loss of motion but she does have alteration of structural integrity of neck in that she has severe cervical spondylosis. This is equivalent to a 5% whole person impairment.
One tenth of this impairment is due to a pre-existing condition in her cervical spine, therefore she has a compensable 5% whole person impairment as a result of her neck condition.
Dr Kleinman then gave several upper extremity impairment (UEI) ratings calculated under the AMA Guides to the Evaluation of Permanent Impairment, 5th Edition (the AMA guide) and then said:
Using Chapter 16, Page 439, Table 16-3, a 5% upper extremity impairment is equivalent to a 3% whole person impairment.
Using the Combined Values Chart, Page 604, combining her impairments she has an 8% whole person impairment.
In his report dated 11 January 2010, Dr Kleinman said:
I have recalculated the impairment for Ms Whiteman under the AMA Guides for the Evaluation of Permanent Impairment, 5th Edition.
Assessing Ms Whiteman according to the AMA Guides to the Evaluation of Permanent Impairment, 5th Edition:-
Using Chapter 16, Page 476, Figure 16 – 40, 130 degrees of flexion and 60 degrees of extension of her left shoulder is equivalent to a 3% upper extremity impairment.
Using Chapter 16, Page 477, Figure 16 – 43, 40 degrees of adduction and 150 degrees of abduction of her left shoulder is equivalent to a 1% upper extremity impairment.
Using Chapter 16, Page 479, Figure 16 – 46, 70 degrees of internal rotation and 80 degrees of external rotation of her left shoulder is equivalent to a 1% upper extremity impairment.
Adding her upper extremity impairments she has a 5% upper extremity impairment.
Using Chapter 16, Page 506, Table 16 – 27, Impairment of the Upper Extremity After Arthroplasty of Specific Bones or Joints, on the basis that she has had an isolated resection arthroplasty of the distal clavicle of her left shoulder. This is equivalent to a 10% upper extremity impairment.
Using the Combined Values Chart, Page 604, combining her upper extremity impairments she has a 15% upper extremity impairment.
Using Chapter 16, Page 439, Table 16 – 3, a 15% upper extremity impairment is equivalent to a 9% whole person impairment.
The Tribunal also had before it two medico-legal reports from Dr Neil McGill, consultant rheumatologist. In his report dated 10 December 2008, Dr McGill assessed the applicant as having 2% WPI under Tables 9.11.1a, 9.11.1b and 9.11.1c of the Comcare guide. In his report dated 7 March 2010, Dr McGill assessed the applicant as follows:
Her impairment in accordance with the Comcare Guide (2nd edition) is determined as follows:
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 arthroplasty (distal clavicle excision), she has 10% upper extremity impairment (AMA (5) page 506).
The 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.
There is no impairment related to the cervical spine.
The total whole person impairment is 7%.
Both Dr Kleinman and Dr McGill gave oral evidence before the Tribunal.
The Tribunal affirmed the decision under review on 27 August 2010. Its Reasons for Decision are dated the same day.
By Notice of Appeal filed on 24 September 2010, (which was amended by an Amended Notice of Appeal filed in Court on 8 December 2010), the applicant propounded two questions of law for determination by this Court pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The second question of law raised by the applicant was subsequently abandoned in light of the Full Court’s decision in Comcare v Broadhurst [2011] FCAFC 39. In that case, the Full Court held that, where the Comcare guide will not permit a determination whether the claimed level of impairment is above or below 10%, the degree of permanent impairment must be assessed under the AMA guide. The issue in Comcare v Broadhurst was whether resort should be had to the 5th Edition or the 6th Edition of the AMA Guides. The Full Court held that the appropriate edition was the 5th Edition. The applicant intended to argue in the present case that the respondent (and thus the Tribunal) was obliged to refer to the 6th Edition of the AMA guide rather than the 5th Edition of that guide but abandoned the point once the Full Court’s decision in Comcare v Broadhurst was known and once it was clear that no special leave application was to be made to the High Court. After the second question of law was abandoned, the applicant relied only upon the following ground:
The notes prior to Table 9.11.1a, Table 9.11.1b and Table 9.11.1c of Chapter 9 of the Guide to the Assessment of the Degree of Permanent Impairment, Second Edition, made under section 28 of the Act, include the instruction:
Where an arthroplasty procedure has been undertaken, refer to the edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment current at the date of the assessment. Combine the total WPI [Whole Person Impairment] rating for abnormal motion with the relevant WPI rating for arthroplasty, obtained from the American Medical Association’s Guides.
Do the notes prior to Table 9.11.1a, Table 9.11.1b and Table 9.11.1c require assessment of the WPI for abnormal motion to be made under Table 9.11.1a, Table 9.11.1b and Table 9.11.1c, the assessment of WPI for the arthroplasty to be made under the American Medical Association’s Guides, and the two WPI ratings then combined?
The applicant contends that the question of law posed for determination by this Court should be answered “Yes”. If that question is answered in the affirmative, the appeal will be allowed, the decision of the Tribunal will be set aside and the claim by the applicant for compensation under s 24 of the Act will be remitted to the Tribunal to be reconsidered according to law.
THE ISSUE
Under the Comcare guide, the relevant decision-maker is required, in certain circumstances, to refer to the AMA guide in order to assess the degree of permanent impairment suffered by a claimant.
In the present case, on the facts before the Tribunal, because the applicant had an arthroplasty performed on her left shoulder, the relevant decision-makers were obliged to refer to the AMA guide in order to assess the degree of permanent impairment in the applicant’s left shoulder. The Tribunal calculated all of the ratings for the applicant’s shoulder by referring only to the AMA guide. The applicant argued before me that the Tribunal was required to utilise the ratings for loss of movement from the Comcare guide and the rating for the arthroplasty from the AMA guide.
THE TRIBUNAL’S DECISION
At [3]–[5] of its reasons, the Tribunal correctly identified the issues which it was required to determine. The Tribunal said:
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.
At [6], the Tribunal noted that both parties accepted that the applicant has been left with a permanent impairment of her left shoulder as a result of the work-related injury which she suffered on 29 July 2004. The Tribunal then noted that it was the respondent’s case that the applicant was not entitled to any lump sum compensation under the Act because the degree of her permanent impairment was less than 10%.
After describing the consequences of the applicant’s injury (at [8]–[18] of its reasons), the Tribunal referred to various provisions in the Comcare guide and the AMA guide (at [9]–[38] of its reasons).
At [39]–[41] of its reasons, the Tribunal said:
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.
The Tribunal then reviewed the evidence of Dr Kleinman and Dr McGill. At [58]–[62], the Tribunal considered the application of Table 9.11 of the Comcare guide in the circumstances of the present case. The Tribunal said:
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.
The Tribunal then considered whether Table 9.14 of the Comcare guide was engaged in the present case and, if so, whether her impairment was 10% WPI when rated under Table 9.14. The Tribunal found that the applicant’s impairment is properly rated 5% on Table 9.14.
At [77]–[81] of its reasons, the Tribunal expressed its conclusions as follows:
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.
THE RELEVANT LEGISLATIVE PROVISIONS
Section 24(1) of the Act provides that, 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. Under Pt VIII of the Act, certain corporations are authorised to accept and determine claims under the Act made by employees of those corporations. The respondent is such a corporation. The respondent stands in the shoes of Comcare for the purposes of the applicant’s claim.
“Impairment” and “permanent” are defined in s 4(1) of the Act as follows:
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
permanent means likely to continue indefinitely.
Subsections (3) to (7) of s 24 are in the following terms:
24 Compensation for injuries resulting in permanent impairment
…
(3)Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4)The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5)Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6)The degree of permanent impairment shall be expressed as a percentage.
(7)Subject to section 25, if:
(a)the employee has a permanent impairment other than a hearing loss; and
(b)Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
For the purposes of s 24, the maximum amount is currently $159,236.05 (see s 13 and s 24(9)).
With some exceptions which are not presently relevant, no compensation is payable unless the degree of impairment is at least 10%.
Under s 28 of the Act, Comcare is authorised to prepare a “Guide to the Assessment of the Degree of Permanent Impairment” which sets out:
(a)criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury shall be determined;
(b)criteria by reference to which the degree of non economic loss suffered by an employee as a result of an injury or impairment shall be determined; and
(c)methods by which the degree of permanent impairment and the degree of non economic loss, as determined under those criteria, shall be expressed as a percentage.
(see s 28(1)).
The current edition of the Comcare guide is the 2nd Edition made in September 2005.
Section 27 of the Act provides for the payment of additional compensation for non-economic loss in respect of an injury once s 24 is engaged in respect of that injury.
THE COMCARE GUIDE AND THE AMA GUIDE
Part 1, Principles of Assessment, in the Comcare guide contains the relevant governing principles to be applied when interpreting the guide and the tables in the guide. In Item 1, Impairment and Non-Economic Loss (p 11), after referring to the definition of impairment in s 4(1) of the Act, the authors of the guide state (p 11):
It [referring to impairment] relates to the health status of an individual and includes anatomical loss, anatomical abnormality, physiological abnormality, and psychological abnormality. The degree of impairment is assessed by reference to the impact of that loss on the normal efficient functioning of the whole person.
Non-economic loss is assessed in accordance with Part 1, Division 2 (page 151) of this Guide, and deals with the effects of the impairment on the employee’s life …
Non-economic loss may be characterised as the ‘lifestyle effects’ of an impairment. ‘Lifestyle effects’ are a measure of an individual’s mobility and enjoyment of, and participation in, social relationships, and recreation and leisure activities. The employee must be aware of the losses suffered. While employees may have equal ratings of whole person impairment it would not be unusual for them to receive different ratings for non-economic loss because of their different lifestyles.
Under Item 5, The Impairment Tables, the following text appears (p 12):
Part 1, Division 1 of this Guide is based on the concept of whole person impairment which is drawn from the American Medical Association’s Guides to the Evaluation of Permanent Impairment (see the 5th edition, 2001).
Division 1 assembles into groups, according to body system, detailed descriptions of impairments. The extent of each impairment is expressed as a percentage value of the whole, normal, healthy person. Thus, a percentage value can be assigned to an employee’s impairment by reference to the relevant description in this Guide.
It may be necessary in some cases to have regard to a number of Chapters within Part 1 of this Guide when assessing the degree of whole person impairment which results from an injury.
Where a table specifies a degree of impairment because of a surgical procedure, the same degree of impairment applies if the same loss of function has occurred due to a different medical procedure or treatment.
Items 7–12 (pp 13–14) provide:
7. Percentages of Impairment
Each table in Part 1, Division 1 contains impairment values expressed as percentages. Where a table is applicable in respect of a particular impairment, there is no discretion to choose an impairment value not specified in that table. For example, where 10% and 20% are the specified values, there is no discretion to determine the degree of impairment as 15%.
8. Comparing Assessments under Alternative Tables
Unless there are instructions to the contrary, where two or more tables (or combinations of tables) are equally applicable to an impairment, the decision-maker must assess the degree of permanent impairment under the table or tables which yields or yield the most favourable result to the employee.
9. Combined Values
Impairment is system or function based. A single injury may give rise to multiple losses of function and, therefore, multiple impairments. When more than one table applies in respect of that injury, separate scores should be allocated to each functional impairment. To obtain the whole person impairment in respect of that injury, those scores are then combined using the Combined Values Chart (see Part 1, Appendix 1) unless the notes in the relevant section specifically stipulate that the scores are to be added (For instance, see 9.8.1 at page 87).
Where two or more injuries give rise to the same whole person impairment only a single rating should be given. For example, impairments resulting from separate injuries to the left and right knees are initially assessed separately under Tables 9.3 and then, in accordance with the notes at Part 1 – Introduction to Chapter 9 on page 74, the impairments are combined using the Combined Values Chart to obtain the overall impairment for the lower extremity function which is taken to be a single whole person impairment. Alternatively, a whole person impairment value can be obtained using the method set out in Table 9.7 (which treats the injuries to both knees as the same impairment*) and this value can then be compared to the combined value previously obtained to determine which is the most beneficial. [*The notes on page 84 to Table 9.7 provide: ‘A single assessment only may be made under Table 9.7, irrespective of whether one or two extremities are affected by the injury’]
However, where two or more injuries give rise to different whole person impairments, each injury is to be assessed separately and the final scores for each injury (including any combined score for a particular injury) added together.
It is important to note that whenever the notes in the relevant section refer to combined ratings, the Combined Values Chart must be used, even if no reference is made to the use of that Chart.
10. Calculating the Assessment
Where relevant, a statement is included in the Chapters of Part 1, Division 1 which indicates:
•the manner in which tables within that Chapter may (or may not) be combined;
•whether an assessment made in that Chapter can be combined with an assessment made in another Chapter in assessing the degree of whole person impairment.
There are some special circumstances where addition of scores rather than combination is required. These circumstances are specified in the relevant sections and tables in Part 1 of this Guide.
…
12. Exceptions to use of Part 1 of this Guide
In the event that an employee’s impairment is of a kind that cannot be assessed in accordance with the provisions of Part 1 of this Guide, the assessment is to be made under the edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment current at the time of assessment.
An assessment is not to be made using the American Medical Association’s Guides to the Evaluation of Permanent Impairment for:
•mental and behavioural impairments (psychiatric conditions);
•impairments of the visual system;
•hearing impairment; or
•chronic pain conditions, except in the case of migraine or tension headaches. (For complex regional pain syndromes affecting the upper extremities, see Part 1, Chapter 9 – 9.13.3 Complex Regional Pain Syndrome, see page 105).
Any reference in this Guide to the American Medical Association’s Guides to the Evaluation of Permanent Impairment is a reference to the edition current at the time of assessment, unless there is reference to a specific edition.
(Original emphasis.)Chapter 9 of the Comcare guide concerns the musculoskeletal system. Part II of Ch 9 deals with The Upper Extremities (hands and fingers, wrists, elbows and shoulders).
The instructions to Pt II of Ch 9, under the heading Part II – Introduction (p 86) provide:
The impairments assessed for each region in each upper extremity are combined (that is, hand, wrist, elbow, shoulder). The WPI rating for one upper extremity may be combined with a WPI rating for the other upper extremity, except in the case of assessments under Table 9.14 (see page 109), where the notes appearing prior to Table 9.14 (see page 109) are to be followed.
WPI ratings from the following tables must not be combined with a WPI rating under Table 9.14 if they assess the same condition in the same upper extremity:
•Tables 9.8.1a, 9.8.1b, 9.8.1c, 9.8.1d (tables dealing with abnormal motion of digits, see pages 87–89);
•Tables 9.8.2a, 9.8.2b, 9.8.2c, 9.8.2d (tables dealing with sensory losses in thumb and fingers, see pages 92);
•Tables 9.9.1a, 9.9.1b (tables dealing with wrists, see page 94);
•Tables 9.10.1a, 9.10.1b (tables dealing with elbows, see page 96);
•Tables 9.11.1a, 9.11.1b, 9.11.1c (tables dealing with shoulders, see pages 98–99).
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 effect of the injury on upper extremity function instead and determine the WPI rating using Table 9.14.
Where a condition cannot be assessed under a specific table in the Upper Extremities group, an assessment may be made under the provisions of the edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment current at the date of the assessment. (Emphasis added.)
All ankylosis assessments from tables in the Upper Extremities group are alternative assessments to those for abnormal motion of the individual joints.
The maximum WPI rating for a single upper extremity is 60%, including combined WPI ratings.
On p 86 of the Comcare guide, there are set out the relevant steps in calculating upper extremity impairment.
Tables 9.11.1a, 9.11.1b and 9.11.1c, in Ch 9 (pp 98–99) provide WPI ratings for impairment to the range of movement of the shoulders. The instructions in the Comcare guide relevant to Item 9.11 (p 97) state:
Table 9.11.1a, Table 9.11.1b and Table 9.11.1c (see pages 98–99) assess impairments to range of motion of the shoulders, including ankylosis.
Loss of range of motion in each functional range is measured from the neutral position. The range of motion is expressed as the two achievable limits of active motion in each direction through the normal range of motion. It is possible that the only motion that can be achieved is between two points on one side of the neutral position.
The WPI rating for restriction of motion in one direction is determined according to the active motion than can be achieved in that direction. It is then added to the WPI rating for the active motion in the reverse direction.
Add the abnormal motion WPI ratings for each direction of motion for shoulder flexion/extension, abduction/adduction and internal/external rotation. Where there is ankylosis, including after an arthrodesis procedure, the assessment should only be made under the ankylosis scale.
Where an arthroplasty procedure has been undertaken, refer to the edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment current at the date of the assessment. Combine the total WPI rating for abnormal motion with the relevant WPI rating for arthroplasty, obtained from the American Medical Association’s Guides. (Emphasis added.)
For ankylosis, the optimal or functional position is 20°–40° of flexion, 20°–50° of abduction and 30°–50° of internal rotation. Unless the shoulder has been arthrodesed, an assessment for ankylosis under this table would be rare.
The maximum possible shoulder impairment is 35% WPI.
For the same condition, a WPI rating from Table 9.11.1a, Table 9.11.1b or Table 9.11.1c may not be combined with a WPI rating from Table 9.14: Upper Extremity Function (see page 109).
Table 16–27 in the AMA guide provides ratings for upper extremity impairment after arthroplasty of specific bones or joints. On p 437 of the AMA guide, in order to calculate impairment of the whole person, the reader is directed to Table 16–3. Table 16–3 appears on p 439 of the AMA guide. That table converts UEI ratings to WPI ratings.
CONSIDERATION
As noted at [22] above, in the present case, the Tribunal took the view that the instructions to Table 9.11 in the Comcare guide make clear that the rating where an arthroscopy has been undertaken is to be calculated by reference to the AMA guide. The AMA guide provides that the WPI for arthroplasty is 6%.
The Tribunal (at [60] of its reasons), went on to find that, where a person has undergone arthroplasty, the assessor is directed to undertake the entire assessment according to the AMA guide.
The applicant submitted that the Tribunal incorrectly applied Table 9.11 of the Comcare guide. The applicant (correctly) submitted that a failure to pose and answer the correct question is an appellable error of law within the meaning of s 44 of the AAT Act (Roncevich v Repatriation Commission (2005) 222 CLR 115 at [28] (p 126)).
The applicant submitted that:
(a)The instructions contained in Item 9.11 of Ch 9 of the Comcare guide require the Tribunal to attempt a calculation of WPI pursuant to Tables 9.11.1a, 9.11.1b and 9.11.1c of the Comcare guide in respect of the loss of the range of movement of the shoulder suffered, then to go on to calculate a WPI rating for the arthroplasty pursuant to the AMA guide, and ultimately to combine the two ratings.
(b)In particular, the instructions in Item 9.11 require the combination of the abnormal motion WPI rating with the arthroplasty WPI rating. The Comcare guide’s Principles of Assessment require ratings to be combined in accordance with the Combined Values Chart. That can only occur if ratings made under Tables 9.11.1a, 9.11.1b and 9.11.1c of the Comcare guide are combined with ratings sourced from the AMA guide. If all UEI ratings are made under the AMA guide, the AMA guide itself would prescribe the procedure for arriving at a WPI figure.
(c)The approach advocated by the applicant is supported by the terms of s 24(5) of the Act and relevant extracts from the Principles of Assessment set out at [33]–[35] above.
(d)As a consequence of the approach adopted by the Tribunal, the Tribunal did not go on to consider the relative merits of the ratings offered by each of Dr Kleinman and Dr McGill calculated pursuant to Tables 9.11.1a, 9.11.1b and 9.11.1c of the Comcare guide. In particular, if Dr Kleinman’s ratings were adopted, the applicant met the 10% threshold required by s 24(7) of the Act.
The respondent submitted that the critical part of Item 9.11 is the fifth paragraph which provides:
Where an arthroplasty procedure has been undertaken, refer to the edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment current at the date of the assessment. Combine the total WPI rating for abnormal motion with the relevant WPI rating for arthroplasty, obtained from the American Medical Association’s Guides.
The respondent submitted that the instruction to combine and assess by reference to the AMA guide which appears in the fifth paragraph of Item 9.11 means that it is by reference to the AMA guide, and that guide alone, that the assessment is to be undertaken. The respondent submitted that, whether the Court adopts a literal or a purposive interpretation of the provision, the same result follows: That is to say, it is to the AMA guide, and to that guide alone, that regard must be had once an arthroplasty procedure has been undertaken in respect of the particular claimant.
The respondent also drew the Court’s attention to the fact that the Combined Values Chart which appears at pp 170–172 of the Comcare guide is reproduced from p 604–606 of the AMA guide. The two charts are identical.
The respondent went on to submit that the AMA guide permits the assessor to calculate the total WPI rating for abnormal motion and the relevant WPI rating for arthroplasty and to combine them using the Combined Values Chart. In other words, all of the necessary components of the exercise required to be undertaken are found in the AMA guide. It cannot be said that all the necessary components of that exercise can be found in the Comcare guide. The respondent re-iterated that the Combined Values Chart in each of the Comcare guide and the AMA guide were precisely the same.
There is no dispute between the parties that, if the correct approach to the critical question to be determined in the present case is the approach advocated by the respondent, then the decision of the Tribunal was correct.
The careful submissions advanced by the parties have crystallised the real question of interpretation thrown up by the present case. Both parties agree that, where an arthroplasty procedure has been undertaken, some reference to the AMA guide has to be undertaken for the purpose of extracting information from that guide or using information from that guide in the assessment exercise required to be undertaken pursuant to the instructions contained in Item 9.11 of the Comcare guide. It is clear that the Comcare guide does not provide a method of calculation which is pertinent when a person has undergone an arthroplasty procedure. It is also clear that the Combined Values Charts that are to be employed in both the Comcare guide and the AMA guide are identical. Therefore, it does not matter to which of those published versions of that Chart resort is had for the purpose of combining the two ratings described in the relevant paragraph of Item 9.11 of the Comcare guide. In the end, the critical question is: Which of the two guides is to be used to calculate the total WPI rating for abnormal motion in the shoulder? It is true that the Comcare guide could be used for that purpose. Tables 9.11.1a, 9.11.1b and 9.11.1c permit such an exercise to be carried out. However, the exercise may also be carried out by using the AMA guide.
I think that the respondent’s interpretation of the relevant paragraph in Item 9.11 of the Comcare guide is the correct interpretation. Item 9.11 deals with a number of separate ideas or concepts. The first paragraph introduces the matters generally to be dealt with in the balance of Item 9.11. The next three paragraphs address the way in which the loss of range of motion in each functional range is to be measured from the neutral position. There is then to be added abnormal motion WPI ratings for various matters as well as utilisation of the ankylosis scale, where necessary. The next concept is dealt with in the fifth paragraph of Item 9.11. That paragraph deals with the way in which the task of evaluation is to be undertaken where an arthroplasty procedure has been undertaken. The sixth paragraph deals with ankylosis. The seventh and eighth paragraphs contain general instructions.
The structure of Item 9.11 supports the respondent’s submissions that, once the affected person has undergone an arthroplasty, the entire assessment is to be carried out by reference to the AMA guide alone. I do not think that the fact that the AMA guide first calculates the UEI and then converts the relevant rating to a WPI is a sufficient basis for adopting the applicant’s interpretation of the fifth paragraph in Item 9.11 of the Comcare guide.
It must also be remembered that, in the fourth paragraph of Pt II – Introduction (Ch 9) (p 86), an instruction is given to use the AMA guide where a condition cannot be assessed under a specific table in the Upper Extremities Group. That instruction is consistent with the proposition that the AMA guide is an appropriate assessment and rating source, at least where the Comcare guide does not specifically cover a particular condition. A similar sentiment is expressed in the first paragraph of Item 12 in Part 1, Principles of Assessment in the Comcare Guide (p 14).
In addition, in the first paragraph of Item 5, The Impairment Tables of the Principles of Assessment (p 12), the authors of the Comcare guide make clear that Pt 1, Div 1 (which comprises the thirteen assessment chapters) is based on the concept of WPI which is drawn from the AMA guide.
The AMA guide is, in a sense, the progenitor of the Comcare guide. There is nothing inconsistent with the scope and purpose of the Comcare guide for instructions to be given to a medical assessor to go back to the AMA guide where the Comcare guide does not cover the matter. Once that instruction is given, as it is in the fifth paragraph of Item 9.11 (p 97), it makes perfect sense to use the AMA guide to carry out the entire assessment including for the purpose of calculating the total WPI rating for abnormal motion. To use a single source for rating purposes leads to consistency when the two WPI ratings are combined, as directed. There appears to me to be no good reason for using two separate sources and then combining the ratings derived from those sources.
There is no warrant for calculating that rating by reference to Tables 9.11.1a, 9.11.1b and 9.11.1c in the Comcare guide, using the AMA guide to calculate the relevant WPI rating for arthroplasty and then using the Combined Values Chart to combine the two.
In any event, as a matter of ordinary English, the words “… obtained from the American Medical Association’s Guides” in the last line of the fifth paragraph of Item 9.11 (p 97) qualify the whole of the first part of the sentence. That being so, it is to the AMA guide that reference must be had in order to calculate both WPI ratings referred to. This interpretation is reinforced by the first sentence of that paragraph. That sentence means: If you are dealing with a claimant who has undergone an arthroplasty procedure, pick up the AMA guide and use that guide to calculate all relevant WPI ratings.
CONCLUSION
For the above reasons, the question of law posed should be answered “No”. That being so, the appeal must be dismissed with costs.
There will be orders accordingly.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate:
Dated: 14 December 2011
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