Whiteman v Australian Postal Corporation

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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 28
Cases cited: Comcare v Broadhurst [2011] FCAFC 39 cited
Roncevich v Repatriation Commission (2005) 222 CLR 115 applied
Date 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
Applicant
AND:

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
Applicant
AND:

AUSTRALIAN POSTAL CORPORATION
Respondent

JUDGE:

FOSTER J

DATE:

14 DECEMBER 2011

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. The applicant is employed by the respondent as a postal worker.

  2. 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…

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Details
Case
[2011] FCA 1427
Decision Date

CaseChat Overview and Summary

The case of Whiteman v Australian Postal Corporation involved a dispute regarding the assessment of permanent impairment in the context of work-related injuries. The applicant, Ms Whiteman, sought compensation for a shoulder injury that resulted in an arthroplasty procedure. The primary legal issue before the court was whether the assessment and calculation of the total whole person impairment (WPI) rating for abnormal motion, and the relevant WPI rating for arthroplasty, should be performed using the Guide to the Assessment of the Degree of Permanent Impairment (Comcare guide) or the American Medical Association’s Guides (AMA guide).

The court had to interpret the relevant provisions of the Comcare guide and the AMA guide to determine the correct method of calculating the WPI rating in cases where an arthroplasty has been performed. The applicant argued that the Tribunal should have combined the ratings for loss of motion from the Comcare guide with the rating for the arthroplasty from the AMA guide, while the respondent maintained that the entire assessment should be conducted according to the AMA guide.

In its decision, the court found that the Tribunal correctly referred to the AMA guide for the assessment of permanent impairment in cases involving arthroplasty. The AMA guide provides specific ratings for upper extremity impairment after arthroplasty, which were to be used for calculating the WPI rating. The court concluded that the Tribunal's approach was in line with the instructions in the Comcare guide and the AMA guide, and therefore dismissed the appeal. The applicant was ordered to pay the respondent's costs of and incidental to the appeal.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.