Wuth and Comcare (Compensation)
[2015] AATA 947
•9 December 2015
Wuth and Comcare (Compensation) [2015] AATA 947 (9 December 2015)
Division
GENERAL DIVISION
File numbers
2014/0673 and 2014/4007
Nicole Wuth
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Dr James Popple, Senior Member Date 9 December 2015 Place Canberra 1. In Application 2014/0673, Comcare’s decision on 23 December 2013 is affirmed.
2. In Application 2014/4007, Comcare’s decision on 2 July 2014 is set aside and, in substitution, the following decision is made:
Comcare is liable, under s 24 of the Safety, Rehabilitation and Compensation Act 1988, to pay compensation to the applicant in respect of her chronic migrainous headaches. Comcare is also liable to pay her compensation for non-economic loss in accordance with s 27 of that Act. The applicant’s degree of permanent impairment is 14%.
.............................[sgd]...........................................
James Popple, Senior Member
CATCHWORDS
COMPENSATION — Commonwealth employees — calculation of normal weekly earnings — effect of part-time working arrangements — applicant and employer understood that applicant would eventually return to full-time work — whether normal hours includes work in addition to agreed hours — decision affirmed.
COMPENSATION — Commonwealth employees — permanent impairment — applicant suffers headaches — disease aggravated by work — assessment of permanent impairment — no applicable table under approved Guide — application of the AMA 5 — clinical judgment — decision set aside and substituted.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 4(1), 5A(1)(a), 5B(1), 8(1), (2), 14, 24, 27
CASES
Comcare v Nicolas (2014) 225 FCR 369
Comcare v Pires (2005) 143 FCR 104
Comcare v Simmons (2014) 220 FCR 102
Farrell v Comcare [2015] FCA 1337
Nicolas and Comcare [2014] AATA 189
Pires and Comcare (2004) 86 ALD 631
Telstra Corporation Ltd v Peisley (2006) 151 FCR 275
Zarb and Comcare (1997) 48 ALD 718
SECONDARY MATERIALS
Comcare, Guide to the Assessment of the Degree of Permanent Impairment (edition 2.1, 2011)
Gunnar B. J. Andersson and Linda Cocchiarella (editors), Guides to the Evaluation of Permanent Impairment (AMA Press, fifth edition, 2001)
REASONS FOR DECISION
Dr James Popple, Senior Member
9 December 2015
Summary
I affirm Comcare’s decision that, for the purposes of s 8(1) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), the applicant worked an average of 29.4 hours (four days) in each week during the relevant period. This is the number of hours that was agreed under a part-time arrangement. The applicant worked extra hours beyond her agreed hours during the relevant period, but those extra hours should not be taken into account.
I set aside Comcare’s decision that it is not liable to compensate the applicant for permanent impairment and non-economic loss. The applicant suffered an injury that has resulted in a permanent impairment. Her impairment is of a kind that cannot be assessed in accordance with the provisions of the approved Guide, so (according to the approved Guide) the assessment is to be made under the fifth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the AMA 5). But the AMA 5 does not provide impairment ratings for her condition. In such situations, the AMA 5 suggests that an assessment should be made using clinical judgment. The applicant’s degree of permanent impairment, assessed using clinical judgment, is 14%. Comcare is liable to compensate her for permanent impairment and non-economic loss.
Background
Ms Nicole Wuth was employed as an Executive Level 1 (EL1) in the Department of Health and Ageing. She was employed on a full-time basis. Her General Practitioner (GP) later reported[1] that she presented to him in February 2006 “with what transpired to have … been Epstein-Barr virus infections”. She had had “impaired exercise intolerance [sic: tolerance] and work endurance consistent with chronic fatigue syndrome”. From mid-2006, on her GP’s advice, she reduced her working hours from five days a week to four. She remained a full-time employee, using personal leave for the day that she did not work in each week.
[1] Dr Ian Brown, 1 August 2007.
In November 2006, Ms Wuth accepted an offer of a voluntary move, at EL1 level, to a position in what was then the Department of Finance and Administration (the Department). That move (the relevant form calls it a “permanent movement”) was under s 26 of the Public Service Act 1999, which is about “[v]oluntary moves between Agencies”. The move took effect on 27 November 2006. The basis upon which she moved to the Department is disputed. I discuss this below.[2] Ms Wuth worked long hours for the Department. The relevance of that fact is disputed. I also discuss this below.[3]
[2] See [23]–[27] and [32]–[34] below.
[3] See [28]–[31] below.
Ms Wuth developed what her GP later described as “vertiginous common migraines, occurring on a very regular basis, and causing significant distress and further limitation of exercise tolerance”. In May 2007, she was hospitalised and referred to a neurologist for treatment. That neurologist later reported[4] that Ms Wuth’s was a “simple chronic headache of a migraine type”. Another neurologist later reported[5] that she suffered from a “chronic” and “persisting post inflammatory headache”.
[4] Dr Colin Andrews, 22 February 2012.
[5] Associate Professor Raymond Garrick, 14 September 2009.
On about 19 May 2008, Ms Wuth went on leave. In November 2008, she was deemed unfit for work and her leave was extended. On 27 May 2010, her employment with the Department was terminated on the grounds of invalidity.
On 29 April 2010, Ms Wuth made a claim for workers’ compensation for “entrenched chronic daily headaches arising from an exacerbation of post-viral fatigue”. On 24 August 2010, Comcare disallowed her claim. Comcare said that Ms Wuth’s condition was a “chronic daily headache” or a “chronic tension headache” (as opposed to a “migraine”), which was “a symptom of a condition rather than a specific medical condition”. Comcare also said that, in any event, it could not be satisfied on the balance of probabilities that her condition was contributed to, to a significant degree, by her employment. For these reasons, Comcare denied that it was liable to pay compensation under s 14 of the SRC Act. Ms Wuth requested a reconsideration of that determination. On 29 July 2011, Comcare affirmed its determination.
On 30 September 2011, Ms Wuth applied to the Tribunal, under s 64 of the SRC Act, for review of that decision. In the course of a dispute resolution process, Ms Wuth and Comcare reached an agreement as to the terms of a decision of the Tribunal that would be acceptable to them both. On 14 September 2012, under s 34D(2) of the Administrative Appeals Tribunal Act 1975, the Tribunal[6] made that decision. Comcare’s decision of 29 July 2011 was set aside and, in substitution, the Tribunal decided that:
·Ms Wuth suffered chronic daily headache, which was a disease that was significantly contributed to by her employment with the Department, with a deemed date of injury of 27 February 2007;
·Comcare was liable to pay compensation to Ms Wuth under s 14 of the SRC Act in respect of chronic daily headache; and
·Comcare was not liable to pay compensation to Ms Wuth in respect of post-viral fatigue.
The Tribunal also noted the parties’ agreement that Ms Wuth’s chronic daily headache may have caused symptoms of tiredness or fatigue.
[6] Webb M in Application 2011/4202.
On 14 August 2013, Comcare determined Ms Wuth’s NWE (normal weekly earnings), for the purposes of s 8 of the SRC Act, on the basis that her normal hours prior to the injury were 29.4 hours—that is, four days a week. On 25 September 2013, Ms Wuth requested a reconsideration of that determination. She said that her NWE should be calculated on the basis of her normal hours being 36.75 hours—that is, five days a week. On 23 December 2013, Comcare affirmed its determination.
On 5 February 2014, Ms Wuth applied to the Tribunal,[7] under s 64 of the SRC Act, for review of that decision.
[7] Application 2014/0673.
On 19 February 2014, Ms Wuth made a claim under ss 24 and 27 of the SRC Act for compensation for permanent impairment and non-economic loss. On 21 March 2014, Comcare disallowed her claim. Comcare said that it was not liable to pay her compensation for permanent impairment in respect of “chronic daily headache” under s 24 and that, consequently, it was not liable to pay her compensation for non-economic loss under s 27. On 16 April 2014, Ms Wuth requested a reconsideration of that determination. On 2 July 2014, Comcare affirmed its determination.
On 3 July 2014, Ms Wuth applied to the Tribunal,[8] under s 64 of the SRC Act, for review of that decision.
[8] Application 2014/4007.
Decisions under review
The decisions under review are Comcare’s decisions:
·on 23 December 2013, affirming its determination that Ms Wuth’s normal hours prior to the injury were 29.4 hours (four days a week); and
·on 2 July 2014, affirming its determination that it is not liable to compensate Ms Wuth for permanent impairment and non-economic loss.
Issues
The issues in this review are:
·whether Ms Wuth’s normal hours prior to the injury were 29.4 hours (four days a week) or 36.75 hours (five days a week)—that depends on how her normal hours should be determined under s 8 of the SRC Act, which affects her normal weekly earnings as calculated under that provision; and
·whether Comcare is liable to pay Ms Wuth compensation for permanent impairment and non-economic loss under ss 24 and 27 of the SRC Act—that depends on:
owhether she has suffered an injury that has resulted in a permanent impairment; and
oif so:
·whether her degree of permanent impairment can be assessed under the approved Guide, or under the AMA 5, or using clinical judgment; and
·whether her degree of permanent impairment is 10% or more.
What were Ms Wuth’s normal hours prior to her injury (s 8 of the SRC Act)?
Section 4(1) of the SRC Act defines “normal weekly earnings” to mean the normal weekly earnings of an employee calculated under s 8. Section 8(1) provides:
8 Normal weekly earnings
(1)For the purposes of this Act, the normal weekly earnings of an employee (other than an employee referred to in subsection (2))[9] before an injury shall be calculated in relation to the relevant period under the formula:
(NH × RP) + A
where:
NH is the average number of hours worked in each week by the employee in his or her employment during the relevant period;
RP is the employee’s average hourly ordinary time rate of pay during that period; and
Ais the average amount of any allowance payable to the employee in each week in respect of his or her employment during the relevant period, other than an allowance payable in respect of special expenses incurred, or likely to be incurred, by the employee in respect of that employment.
In this review, the values of RP and A are agreed; only the value of NH (Ms Wuth’s normal hours) is in issue.
[9] Section 8(2) applies where an employee is required to work overtime on a regular basis. See [30] below.
The relevant period
Section 4(1) defines “relevant period” to mean the period calculated under s 9. Section 9(1) provides that the relevant period is “the latest period of 2 weeks before the date of the injury during which the employee was continuously employed”.[10] As noted above,[11] the Tribunal has already decided that the deemed date of injury was 27 February 2007, as agreed between the parties. Ms Wuth was continuously employed in the two weeks before that date. So, the relevant period is 13–26 February 2007.[12]
[10] Section 9(1) is expressly subject to s 9. The other subsections of s 9 do not apply in this review.
[11] See [8] above.
[12] At the hearing, Ms Wuth said that it is arguable that the date of injury was another date. However, both Ms Wuth and Comcare agree that nothing turns on this. They disagree about how the value for NH should be determined, but they agree that that value is the same whichever date of injury—and, therefore, whichever relevant period—is used.
Ms Wuth’s employment with the Department
Ms Wuth gave evidence at the hearing. I accept her as witness of truth. Her evidence is not contested. I make the findings set out in [18]–[22] below, on the balance of probabilities. These findings are based on Ms Wuth’s evidence, and on documents before me.
In late 2006, Ms Wuth expected that her condition would improve within the following few months to the extent that she would be able to work five days a week. Before she moved to the Department on 27 November 2006, Ms Wuth had a discussion with the manager of the branch into which she was to move (the Branch Manager). The understanding between Ms Wuth and the Branch Manager was that Ms Wuth would commence working for the Department four days a week, and that she would increase her working hours to full-time when she was well enough to do so. She expected that that would be within a few months of commencing. Ms Wuth would not have agreed to the move if there had not been the option of her returning to full-time work.
The letter of offer from the Department (dated 9 November 2006) said that Ms Wuth’s remuneration would be “pro-rated based on part time hours of 29.4 hours per week”, which was four-fifths of a nominal full-time working week (36.75 hours). Ms Wuth accepted the offer on 14 November.
Ms Wuth entered into an Australian Workplace Agreement (AWA) with the Secretary of the Department. Clause 2.3 of that AWA, headed “Hours of work”, relevantly provided:
You are required to work ordinary hours and such reasonable additional hours as are necessary for the performance of your duties. Your ordinary hours are 36 hours and 45 minutes per week or 7 hours and 21 minutes per day, subject to any part-time arrangements agreed between you and your Manager. If you work part-time your remuneration (salary and any performance bonus) and leave entitlements will be calculated on a pro rata basis, based on the full-time ordinary hours.
Your remuneration includes payment for all hours worked, including reasonable additional hours. The relevant period for the purposes of calculating the average hours you work shall be 12 months.
Time Off In Lieu (TOIL) may be granted by your Manager, in consultation with the General Manager, to recognise short term additional hours worked.
Before she moved to the Department, Ms Wuth was working full-time for four days a week, using personal leave for the fifth day. At the Department, her salary was paid on a pro rata basis: four-fifths of a full-time salary. She did not use personal leave for the fifth day as she had done previously.
In late 2006, Ms Wuth worked about four-fifths of a full-time workload. In early 2007, in the lead up to the Budget, she and her colleagues were expected to work longer hours. By February 2007, and during the relevant period, Ms Wuth was working more than 36.75 hours a week—that is, more than a full-time workload. This involved her working long hours for four days a week, and sometimes working 2–3 hours on her “day off” each week. Consistent with her AWA, Ms Wuth was credited with some time off in lieu (TOIL) in recognition of the additional hours that she worked.
How should Ms Wuth’s normal hours be determined?
Ms Wuth says that she was a full-time employee of the Department, even though her employment was subject to part-time arrangements agreed between her and her manager. (I will call this her first argument.) Alternatively, she says that, if she was a part-time employee, she was working at least full-time hours during the relevant period (her second argument). And she says that, even if she was a part-time employee, there was an understanding between her and the Department that she would become a full-time employee when she was well enough to do so—probably by mid-2007 (her third argument). For these reasons, Ms Wuth says that her NWE should be calculated on the basis that she worked an average of at least 36.75 hours (five days) a week during the relevant period.
Comcare says that Ms Wuth was a part-time employee of the Department. Comcare says that the part-time arrangements agreed between Ms Wuth and her manager could have been varied—she could have become a full-time employee—but this never happened. Comcare points out that Ms Wuth was always remunerated on a pro rata basis, and had access to TOIL when she worked more than her agreed part-time hours. For these reasons, Comcare says that Ms Wuth’s NWE should be calculated on the basis that she worked an average of 29.4 hours (four days) a week during the relevant period.
In Comcare v Nicolas,[13] the Full Court of the Federal Court considered the operation of s 8 of the SRC Act. The employee in that case was injured 11 days after she had commenced a graduated return to work. She had worked (as agreed with her employer) 12 hours in each of the two weeks before her injury. It had been intended that she would increase her working hours to 22.5 hours per week over the following three months.[14] The Tribunal had taken the view that “reliance on the nine working days prior to [the employee’s] injury … for the purpose of calculating her normal weekly earnings, does not permit the calculation of an amount that would fairly represent her normal weekly earnings before the injury”.[15] The Tribunal thought that, given that the graduated return to work program was intended to lift her hours to 22.5 hours a week, it was “evident that the parties to the return to work program did not regard 12 hours per week as her normal hours”.[16] Instead, the Tribunal considered that its task was to identify “another period considered reasonable for the purpose of calculating an amount that fairly represents the weekly rate at which she was being paid”.[17]
[13] (2014) 225 FCR 369.
[14] Nicolas and Comcare [2014] AATA 189 at [4]–[6], [26] per Handley DP. See also Comcare v Nicolas (2014) 225 FCR 369 at 370 [5], 374 [31] per Edmonds, Buchanan and Flick JJ.
[15] Nicolas and Comcare [2014] AATA 189 at [27] per Handley DP.
[16] Nicolas and Comcare [2014] AATA 189 at [27] per Handley DP, emphasis in the original.
[17] Nicolas and Comcare [2014] AATA 189 at [30] per Handley DP.
The Full Court decided that it was not open to the Tribunal to use, for the calculation under s 8(1), a period other than the two week period before the employee’s injury:[18]
In that period Ms Nicolas worked all of the hours expected of her for a two-week period. Those hours (and the rate of pay applied to them) gave “the weekly rate at which the employee was being paid in respect of … her employment before the injury”. The importance of that factual circumstance was not altered by the expectation that the hours might increase in the months to come. The task of the AAT was to examine whether the two-week period before the injury … was fairly representative of normal weekly earnings pre-injury, not to assess whether those earnings might be expected to increase in the future.[19]
[18] Comcare v Nicolas (2014) 225 FCR 376 at [49] per Edmonds, Buchanan and Flick JJ.
[19] Comcare v Nicolas (2014) 225 FCR 369 at [42] per Edmonds, Buchanan and Flick JJ. The Court said (at 375 [37]) that one difficulty with the Tribunal’s approach was that it “appears to have reasoned towards a final figure of notional weekly hours, rather than identifying a period which, when applied together with the actual rate of pay then applying, would give a fair basis for the calculation required by s 8”.
It follows from the Full Court’s decision in Nicolas, that I must apply s 8 in this review without regard to the possibility—even the probability—that Ms Wuth would have become a full-time employee of the Department if she had not been injured. This means that Ms Wuth’s third argument must fail. She was not taking part in a formal graduated return to work program. But, even if she had been, her NWE must be calculated on the basis of the average number of hours that she worked in each week during the relevant period, not the number of hours that she might have worked in the months that followed.
Ms Wuth’s second argument is that her average number of hours is 36.75 hours (five days) because she worked at least that many hours in each week of the relevant period, even though her agreed hours were fewer. One difficulty with this argument is that, if it is valid—if the actual number of hours worked should be used for the calculation under s 8(1), regardless of the number of agreed hours—that number of hours is not capped at a full-time workload.[20] So, a person working on a full-time basis, with agreed full-time hours, would receive a certain amount of compensation if they worked exactly 36.75 hours in each week, but would receive almost 9% more compensation if they happened to work 40 hours a week during their relevant period, and more than 22% more if they worked 45 hours a week. These would be anomalous results.
[20] Section 8(10) provides for a cap on an employee’s normal weekly earnings, but Ms Wuth and Comcare agree that that provision does not apply to this review. As Jacobson J explained in Comcare v Pires (2005) 143 FCR 104 at 114 [52], “s 8(10) is concerned with the possibility of over compensation payable to an injured employee as a result of changes in conditions of employment to which the employee would have been subject if he or she had continued to work after the injury”. See also Comcare v Simmons (2014) 220 FCR 102 at 105 [11] per Flick and Griffiths JJ; at 122 [81] per Perry J.
Ms Wuth did not argue that her NWE should be calculated on the basis of her having worked more than a full-time workload, even though she did work those hours. But it is a corollary of her second argument that her compensation should be calculated having regard to those (extra) actual hours worked. If it is appropriate to calculate her NWE on the basis of her having worked 36.75 hours a week when her agreed hours were 29.4 then it must also be appropriate to calculate her NWE on the basis of her having worked more than 36.75 hours. That would also be an anomalous result. Her second argument must fail.
Section 8(2) of the SRC Act provides for the calculation of an employee’s NWE before an injury, but only where that employee is required to work overtime on a regular basis. In Comcare v Pires,[21] the Federal Court considered the proper construction of ss 8(1) and (2). The Court expressly rejected the approach that the Tribunal took, and had taken in an earlier case: that hours of overtime which were not required or regular must be included in the calculation under s 8(1).[22] The Tribunal’s approach had sought to address the following perceived unfairness:
If overtime is not included in the calculation under s 8(1) the employee will not be compensated for the loss even though some overtime is a feature of the employment, albeit that the overtime was not compulsory and not regular.[23]
As an EL1 employee, Ms Wuth was not entitled to overtime, so s 8(2) does not apply in this review. But Ms Wuth’s second argument is a reaction to the unfairness addressed by the Tribunal’s approach: if the extra hours that she worked, beyond her agreed hours, are not included in the calculation under s 8(1), she will not be compensated for the loss even though those extra hours were a feature of her employment. The Federal Court in Pires rejected this approach. The Court held that the term “average number of hours worked” in s 8(1) is restricted to “ordinary, non-overtime hours”.[24]
[21] (2005) 143 FCR 104.
[22] Comcare v Pires (2005) 143 FCR 104 at 105 [7], 109–110 [15]–[22] per Jacobson J. The decision appealed from was Pires and Comcare (2004) 86 ALD 631 per Allen SM, who (at 635 [22]) had followed the approach adopted in Zarb and Comcare (1997) 48 ALD 718 at 726–727 [30]–[31] per Burns DP. See also Telstra Corporation Ltd v Peisley (2006) 151 FCR 275.
[23] Comcare v Pires (2005) 143 FCR 104 at 109 [15] per Jacobson J. See Zarb and Comcare (1997) 48 ALD 718 at 723 [16] per Burns DP.
[24] Comcare v Pires (2005) 143 FCR 104 at 112 [36] per Jacobson J.
Although she was not entitled to overtime, Ms Wuth had access to TOIL when she worked more than her agreed hours. The value of NH in s 8(1) must be determined having regard to the employee’s “ordinary, non-overtime hours”. So, in this review, NH should be determined having regard to Ms Wuth’s agreed hours only, and not those extra hours that she worked beyond her agreed hours during the relevant period. The AWA required that Ms Wuth work those agreed hours and “reasonable additional hours”, for which she would be paid a set salary. The Federal Court in Pires noted that it might be thought unfair to the employee that extra hours worked (in that case, overtime) not be taken into account in determining NH. But the Court pointed out that “any unfairness in the present case must give way to the proper construction of the Act”.[25] The decision in Pires is another reason why Ms Wuth’s second argument must fail.
[25] Comcare v Pires (2005) 143 FCR 104 at 115 [61] per Jacobson J.
Ms Wuth’s remaining argument (her first argument) is that she was actually a full-time employee of the Department, notwithstanding the agreed part-time arrangements. I have already found[26] that, before Ms Wuth commenced working for the Department, she had an understanding with the Branch Manager that she would start working four days a week, but that she would increase her working hours to full-time when she was well enough to do so. As noted above,[27] the letter of offer from the Department to Ms Wuth said that her remuneration would be “pro-rated based on part time hours”. As also noted above,[28] her AWA provided that Ms Wuth’s “ordinary hours” were “36 hours and 45 minutes per week”, but that that was “subject to any part-time arrangements agreed between [her and her manager]”.
[26] See [18] above.
[27] See [19] above.
[28] See [20] above.
Ms Wuth argues that the combined effect of her understanding with the Branch Manager, the letter of offer, and the AWA is that she was engaged by the Department as a full-time employee. The strongest evidence in support of this argument is the reference in the AWA to full-time ordinary hours. But the proviso that the ordinary hours are subject to any agreed part-time arrangements appears in the same sentence. The AWA is worded—no doubt, deliberately—so that it can apply, without modification, to employees who commence on a full-time or a part-time basis. Ms Wuth points out that her agreed part-time arrangements were always intended to be short-term. But that does not change the basis upon which Ms Wuth commenced her employment with the Department, except to the extent that both she and the Branch Manager expected that the basis of her employment would change.
I think that the better interpretation is that Ms Wuth commenced working for the Department on a part-time basis, with an expectation (shared with the Branch Manager) that she would eventually work on a full-time basis. She continued to work on a part-time basis up until, and during, the relevant period. That interpretation is consistent with all of the evidence, including the fact that Ms Wuth’s remuneration by the Department was at all times pro-rated at four-fifths of a full-time salary. It follows that Ms Wuth’s first argument fails.
Ms Wuth’s normal hours should be determined under s 8(1) having regard to her agreed hours only, and not the extra hours that she worked beyond her agreed hours during the relevant period. Comcare was correct to calculate her NWE on the basis that she worked an average of 29.4 hours (four days) a week during the relevant period.
Is Comcare liable to pay Ms Wuth compensation for permanent impairment and non-economic loss (ss 24 and 27 of the SRC Act)?
Section 24(1) of the SRC 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. Section 27 provides that, where compensation is payable under section 24, Comcare is liable to pay additional compensation for non-economic loss in accordance with s 27.
Has Ms Wuth suffered an injury that has resulted in a permanent impairment?
Section 5A(1)(a) of the SRC Act defines “injury” to include “a disease suffered by an employee”. Section 5B(1) provides:
(1)In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
Section 4(1) defines “impairment” to mean “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”. Section 4(1) defines “permanent” to mean “likely to continue indefinitely”. Section 24(2) provides:
(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.
I have before me several medical reports about Ms Wuth, though no medical witnesses were called at the hearing. (Ms Wuth was the only witness at the hearing.)
Associate Professor Owen White, a neurologist, prepared two reports: a report dated 28 April 2015, based on his examination of Ms Wuth that day; and a supplementary report dated 26 July 2015. In his supplementary report, Associate Professor White said that Ms Wuth “has developed a chronic headache syndrome, not clearly migrainous, occasioned by initial viral infection, which has resulted in central sensitization of nociceptive pathways and subsequently aggravated and perpetuated by the nature of her work and the stresses occasioned by that work”. This, he said, “may be characterised as a complex regional pain syndrome”.
Dr Janaka Seneviratne, a consultant neurologist and clinical neurophysiologist, also prepared two reports: a report dated 2 January 2015, based on his examination of Ms Wuth on 28 November 2014; and a supplementary report dated 22 January 2015. In his first report, Dr Seneviratne said that, in his opinion, Ms Wuth “does have impairment as a result of her chronic daily headaches”. He also reported that the impairment is permanent, that Ms Wuth had undertaken all reasonable rehabilitative treatment, and that it was unlikely that she would experience further improvement. He thought that Ms Wuth’s headaches are “likely migrainous in origin” rather than “tension-type headaches”. In his opinion, “it is likely that her headaches were aggravated/contributed to a material degree by” work-related factors, and “she has no work capacity for pre-injury duties at present and this is not going to change with time”.
These reports (all from 2015) are generally consistent with earlier reports (from 2007 to 2012) of Associate Professor Raymond Garrick, Ms Wuth’s treating neurologist,[29] and Dr Colin Andrews, a consultant neurologist.[30] Dr Andrews was of the view that Ms Wuth’s headaches were migrainous. Dr Ross Mellick, another consultant neurologist, provided reports in 2010 and 2012 on Ms Wuth’s condition.[31] He was of the view that her headaches were not migrainous.
[29] 30 April, 15 June, 29 July and 14 September 2009; and 5 February and 27 May 2010. See also [5] above.
[30] 14 June 2007 and 22 February 2012. See also [5] above.
[31] 12 and 20 July 2010 and 15 June 2012.
Having regard to all of this evidence, and the Tribunal’s decision (agreed to by the parties) on 14 September 2012,[32] I make the following findings on the balance of probabilities. Ms Wuth suffers chronic migrainous headaches caused by a viral infection in early 2006. Those headaches were aggravated during her employment with the Department in late 2006 and (especially) in early 2007. That aggravation was contributed to, to a significant degree, by her employment with the Department. The pain from those headaches causes a loss of function. She has undertaken all reasonable rehabilitative treatment for the headaches. The headaches are likely to continue indefinitely.
[32] See [8] above.
Applying the provisions of the SRC Act quoted at [37] above, it follows that: the aggravation of Ms Wuth’s chronic migrainous headaches is a disease and, therefore, an injury; that injury has resulted in an impairment; and that impairment is permanent. Accordingly, I find that Ms Wuth has suffered an injury that has resulted in a permanent impairment within the meaning of, and for the purposes of, s 24(1).
Is Ms Wuth’s degree of permanent impairment 10% or more?
Sections 24(5) and (6) of the SRC Act provide that Comcare must determine the degree of an employee’s permanent impairment under the provisions of the approved Guide and express that degree as a percentage. Because of s 24(7), if that degree of impairment is less than 10%,[33] Comcare is not liable to pay compensation under s 24.
[33] This applies to a permanent impairment other than a hearing loss, and is subject to s 25 which is about interim payment of compensation.
The approved Guide is a legislative instrument, made by the Minister responsible for the SRC Act, and entitled Guide to the Assessment of the Degree of Permanent Impairment.[34] Because of s 28(4), the approved Guide is binding on Comcare and on the Tribunal. The current version of the approved Guide is edition 2.1. It applies to claims received on and from 1 December 2011, so it applies to Ms Wuth’s claim.[35]
[34] SRC Act, s 4(1) (definition of “approved Guide”) and s 28.
[35] Ms Wuth made a claim for compensation on 29 April 2010 and another on 19 February 2014. The first claim led to the dispute about Ms Wuth’s normal hours prior to her injury (see [7]–[10] above). The second claim led to the dispute about whether Comcare is liable to pay Ms Wuth compensation for permanent impairment and non-economic loss (see [11]–[12] above). It is this second claim to which the approved Guide applies.
Part 1 of the approved Guide deals with claims for permanent impairment other than defence-related claims. Part 2 deals with defence-related claims: that is, claims for permanent impairment for injuries related to defence service.[36]
[36] The approved Guide explains (at x) that Part 1 “applies to permanent impairment claims under sections 24, 25 or 27 of the SRC Act received by the relevant authority on and from 1 December 2011”, and Part 2 “applies to defence-related claims for permanent impairment under [those same provisions] received by the relevant authority on and from 1 December 2011 for injuries related to defence service rendered before 1 July 2004”.
Apart from the reference in Principle 12 (quoted below[37]), there is no reference to migraines or headaches in Part 1. There is a reference in Part 2. Table 13.1 in that part is about “Intermittent conditions”. It is “[f]or use in the assessment of disorders of the haemopoietic system … and intermittent disorders such as asthma, migraine, tension headache, epilepsy etc.”[38] The table indicates that percentage values from 0% to 95% can be assigned to an employee’s impairment, depending on “the frequency, duration and severity of attacks with reference to the degree of interference with activities of daily living”. Chapter 13 in Part 1 of the approved Guide deals with the “haematopoietic system”,[39] but it does not deal with intermittent conditions and makes no reference to migraines or headaches. Chapter 12 in Part 1 deals with the neurological system, but (like the corresponding chapter in Part 2) does not deal with migraines or headaches. This difference in application may be an anomaly, or it may be intended that defence-related claims be treated more beneficially in this respect.
[37] See [49] below.
[38] Approved Guide at 261.
[39] The term “haematopoietic” is used in Part 1; “haemopoietic” is used in Part 2. I think that these terms are intended to be synonymous.
Ms Wuth’s claim is not a defence-related claim, so only Part 1 of the approved Guide applies. But (as Ms Wuth and Comcare agree) her impairment cannot be assessed in accordance with the provisions of Part 1. The tables do not provide a meaningful and clinically reliable answer.[40]
[40] See Farrell v Comcare [2015] FCA 1337 at [46] per Flick J.
In a section of Part 1 entitled “Principles of assessment”, the approved Guide says:
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 [AMA 5].
An assessment is not to be made using the [AMA 5] for:
·…
·chronic pain conditions, except in the case of migraine or tension headaches. …[41]
[41] Approved Guide at 13.
Ms Wuth says that the AMA 5 does not provide impairment ratings for her condition. The AMA 5 says:
In situations where impairment ratings are not provided, the [AMA 5] suggests that physicians use clinical judgment, comparing measurable impairment resulting from the unlisted condition to measurable impairment resulting from similar conditions with similar impairment of function in performing activities of daily living.[42]
Accordingly, Ms Wuth says, the degree of her whole person impairment should be assessed using clinical judgment. She says that that would result in an assessment of at least 10% impairment, which would mean that Comcare is liable to pay her compensation under s 24 of the SRC Act.
[42] AMA 5 at 11.
Comcare says that Ms Wuth’s impairment can be assessed under the AMA 5, so clinical judgment is not to be used. Comcare says that, applying the AMA 5, Ms Wuth’s degree of impairment is no more than 3%, so Comcare is not liable to pay her compensation under s 24.
Does the AMA 5 provide impairment ratings for Ms Wuth’s condition?
Chapter 18 of the AMA 5 is about pain. The introduction to the chapter says that it will (amongst other things) “provide physicians with a qualitative method for evaluating permanent impairment due to chronic pain”.[43] The AMA 5 notes that there are “several difficulties associated with integrating pain-related impairment into an impairment rating system” like the AMA 5.[44] It notes that chapter 18 assesses pain qualitatively, and adds:
Because percentages for pain-related impairment have not been used and tested on a widespread basis, as have other impairment ratings used in the [AMA 5], it was decided that impairment ratings for pain disorders would not be expressed as percentages of whole person impairment. Future scientific evidence may emerge that will enable a more quantifiable approach to be adopted. Nevertheless, the value of a qualitative assessment is that any identification of a significant pain component warrants additional consideration when interpreting impairment ratings used for allocation of medical resources, work placement, or financial compensation.[45]
This is the reason why Ms Wuth’s impairment cannot be assessed under the AMA 5. Hers is not a situation where identification of a significant pain component warrants additional consideration when interpreting impairment ratings. There is no impairment rating to interpret, and the AMA 5 does not provide that impairment rating.
[43] AMA 5 at 565.
[44] AMA 5 at 569.
[45] AMA 5 at 570.
The AMA 5 identifies three situations where the “organ and body system impairment rating does not adequately address impairment” and chapter 18 should be used to evaluate pain-related impairment.[46] One of these is when there are well-established pain syndromes without significant, identifiable organ dysfunction to explain the pain.[47] An “illustrative list” of such syndromes includes “Headache (most)”.[48] Comcare says that this indicates that Ms Wuth’s condition can be evaluated using Chapter 18 of the AMA 5. That chapter includes a “protocol for assessing pain-related impairment” under which an “examiner may award quantitative pain-related impairment of up to 3%”.[49] The chapter also includes a sample protocol. Under the sample protocol, a formal assessment is performed and the pain-related impairment is determined to be rateable or unrateable. If it is rateable, a “final impairment rating” is determined as follows:
a.If an individual’s conventional impairment rating adequately encompasses the burden of his or her condition, the individual should not receive any additional pain-related impairment.
b.If pain-related impairment increases the individual’s burden of illness slightly beyond that indicated by his or her conventional impairment rating, award the conventional impairment and combine this with discretionary quantitative pain-related impairment of 1%; 2%, or 3%.
c.If pain-related impairment increases the individual’s burden of illness substantially beyond that indicated by his or her conventional impairment rating, award the conventional impairment and combine this with discretionary quantitative pain-related impairment of 3%. Also, indicate the individual’s qualitative pain-related class.[50]
[46] AMA 5 at 570–571.
[47] The other two situations are when there is excess pain in the context of verifiable medical conditions that cause pain, and when there are other associated pain syndromes.
[48] AMA 5, Table 18-1 at 571.
[49] AMA 5 at 573, taking account of errata issued in March 2002.
[50] AMA 5 at 584, taking account of errata issued in March 2002, emphasis in the original. The “qualitative pain-related class” (for example, “mild impairment” or “severe impairment”) is determined based on a “pain-related impairment score” which ranges between 0 and 80, and is expressly not the impairment rating. See Table 18-7 at 584.
The extract from the AMA 5 quoted at [52] above makes it clear that the AMA 5 does not apply to Ms Wuth’s situation. The sample protocol demonstrates that inapplicability. The sample protocol determines the “additional pain-related impairment”, if any. Ms Wuth does not have a “conventional impairment rating” with which to “combine” any “discretionary quantitative pain-related impairment”.
I note that the AMA 5 uses, as an example of how to assess pain-related impairment, the case of a woman who is otherwise healthy but experiences approximately 20 severe headache events a year.[51] The diagnosis is “migraine”, and the impairment class is “mild impairment”. The examiner “has the option of awarding 1%, 2%, or 3% quantitative impairment”, but there is “no ratable [sic] impairment based on organ or body part dysfunction”.[52] The AMA 5’s use of this example confirms my view that the AMA 5 does not provide impairment ratings for Ms Wuth’s condition.
[51] AMA 5 at 586–587.
[52] AMA 5 at 587, taking account of errata issued in March 2002.
Principle 12 in Part 1 of the approved Guide suggests that migraine or tension headaches can be assessed under the AMA 5.[53] But such an assessment can only be made if a “conventional impairment rating” can be assessed first. The AMA 5 can only be used to assess the degree of “additional pain-related impairment” due to migraine or tension headaches.
[53] Approved Guide at 13. See [49] above.
Ms Wuth’s impairment is of a kind that cannot be assessed in accordance with the provisions of Part 1 of the approved Guide, and the AMA 5 does not provide impairment ratings for her condition. The degree of Ms Wuth’s whole person impairment must be assessed (as the AMA 5 suggests[54]) using clinical judgment.
[54] AMA 5 at 11. See [50] above.
What is the degree of Ms Wuth’s whole person impairment, assessed using clinical judgment?
In relation to the degree of her whole person impairment, Ms Wuth relies especially on the two reports of Associate Professor White;[55] Comcare relies especially on the two reports of Dr Seneviratne.[56] I think that these reports are of limited assistance in determining the degree of Ms Wuth’s whole person impairment.
[55] See [39] above.
[56] See [40] above.
In his first report, Associate Professor White purported to apply the tables in Division 2 of Part 1 of the approved Guide to determine the degree of Ms Wuth’s impairment and express that degree as a percentage. That Division is entitled “Guide to the assessment of non-economic loss”, and is used “to assess the degree of an employee’s non-economic loss resulting from impairment”.[57] Section 27 of the SRC Act provides that Comcare is liable to pay compensation for non-economic loss, but only where compensation is payable under section 24 for permanent impairment. The tables in Division 2 of Part 1 of the approved Guide can only be used where compensation for permanent impairment is payable. They do not assist in determining whether such compensation is payable, or the degree of impairment.
[57] Approved Guide at ix.
In his supplementary report, Associate Professor White said that, in the absence of any other applicable table, it would be tenable to assess Ms Wuth with a whole person impairment of 10% under Table 12.5.3 of Part 1, which is about the trigeminal nerve. He also said that it might be possible to apply chapter 18 of the AMA 5, on the basis that Ms Wuth suffered from well-established pain syndromes without significant, identifiable organ dysfunction to explain the pain. Following the protocol discussed above,[58] he concluded that Ms Wuth’s impairment class was “moderate”.
[58] See [53] above.
In his reports, Dr Seneviratne took the view that the approved Guide was not applicable to Ms Wuth’s condition. He applied chapter 18 of the AMA 5 and concluded that Ms Wuth’s impairment class was “mild”, which is one category of impairment less severe than “moderate”. However, on the basis that Ms Wuth’s impairment was not rateable, he concluded that he could not assess her as having any degree of whole person impairment.
As discussed above, neither the approved Guide nor the AMA 5 can be used to assess the degree of Ms Wuth’s impairment in this way.
Using clinical judgment to determine the degree of Ms Wuth’s impairment involves comparing the impairment resulting from her headaches to impairment resulting from similar conditions with similar impairment of function in performing activities of daily living.[59] The table in the AMA 5 for rating impairment of consciousness and awareness assigns 0%–14% impairment (“Class 1”) for “minimal limitation” and 15%–39% (“Class 2”) for “moderate limitation” in performance activities of daily living.[60] The table for rating impairment due to episodic loss of consciousness or awareness assigns 0%–14% impairment (“Class 1”) for a disorder that “limits daily activities” and 15%–29% (“Class 2”) for a disorder that “interferes with some daily activities”.[61] Of the conditions for which the AMA 5 provides impairment ratings, these are, I believe, the conditions that are most similar to Ms Wuth’s and with the most similar impairment of function in performing activities of daily living. Comparing her impairment with impairment resulting from those two conditions, I think that Ms Wuth’s level of impairment is analogous to the upper end of Class 1 for each condition. It is possible that her impairment is analogous to Class 2 for each condition, but there is not sufficient evidence before me to make such a finding.
[59] AMA 5 at 11. See [50] above.
[60] AMA 5, Table 13-2 at 309.
[61] AMA 5, Table 13-3 at 312.
Having regard to the medical evidence before me, I make the following finding, on the balance of probabilities: Ms Wuth’s degree of whole person impairment, assessed using clinical judgment, is 14%.
In making this finding, I note the following:
·Even though the reports of Associate Professor White and Dr Seneviratne are of limited assistance in determining the degree of Ms Wuth’s whole person impairment, this finding is not inconsistent with those reports. Associate Professor White concluded that the degree of impairment was 10%, impermissibly applying Table 12.5.3 of Part 1 of the approved Guide. Dr Seneviratne, in his first report, said that Ms Wuth’s impairment had “adverse effects on her lifestyle, day-to-day life and work capacity” and that she had “no work capacity for pre-injury duties”.
·Ms Wuth’s employment with the Department was terminated on the grounds of invalidity. Whether compensation is payable for an injury resulting in incapacity for work is dealt with under s 19 of the SRC Act, independently of whether compensation is payable for permanent impairment (s 24). Nonetheless, the fact that Ms Wuth is incapacitated for work is consistent with a finding of a degree of impairment of at least 14%.
·As noted above,[62] conditions like Ms Wuth’s can be assessed under Part 2 of the approved Guide. But Part 2 only applies to defence-related claims. Under Table 13.1 in Part 2, the degree of impairment from intermittent disorders such as migraine and tension headache can be assessed at up to 95%. The degree of impairment can be assessed at 10% if:
Episodes occur 12 or more times a year and cause minor interference with activities of daily living or episodes occur less frequently and cause interference with all activities of daily living other than self care.[63]
The degree of impairment can be assessed at 20% if:
Episodes occur up to 25 percent of the time and cause significant interference with most activities of daily living other than self care.[64]
If Part 2 of the approved Guide applied to Ms Wuth’s claim, it is very likely that her degree of impairment would be assessed at 14% or more. But Part 2 does not apply to her claim because her claim is not defence-related. I have not applied Part 2 of the approved Guide in finding that the degree of Ms Wuth’s impairment is 14%. However, that finding is consistent with the application of the approved Guide to defence-related claims for similar conditions.
[62] See [47] above.
[63] Approved Guide, Table 13.1 at 261.
[64] Approved Guide, Table 13.1 at 261.
Conclusion
Ms Wuth’s average number of hours worked in each week during the relevant period should be determined under s 8(1) of the SRC Act having regard to her agreed hours only. Her normal weekly earnings should be calculated on the basis that she worked an average of 29.4 hours (four days) a week during the relevant period.
Ms Wuth suffered an injury that has resulted in a permanent impairment. The degree of her permanent impairment is 14%, assessed using clinical judgment. Comcare is liable under s 24 to pay compensation to Ms Wuth in respect of her injury. Comcare is also liable to pay her compensation for non-economic loss in accordance with s 27.
I certify that the preceding 67 (sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple ...............................[sgd].........................................
Associate
Dated 9 December 2015
Date of hearing 9 November 2015 Counsel for the Applicant Mr Leo Grey Solicitors for the Applicant Pappas, J, Attorney Counsel for the Respondent Mr Peter Woulfe Solicitors for the Respondent Claims and Liability Management Division, Comcare
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