YJTC and Australian Postal Corporation
[2014] AATA 974
•7 November 2014
[2014] AATA 974
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/5881
Re
YJTC
APPLICANT
And
Australian Postal Corporation
RESPONDENT
DECISION
Tribunal A.G. Melick SC, Deputy President
Date 7 November 2014 Date of written reasons 5 February 2015 Place Canberra For the reasons given orally at the conclusion of the hearing of this matter, the transcript of which is set out below, the Tribunal sets aside the reviewable decision and in substitution makes the following decision in accordance with section 43 of the Administrative Appeals Tribunal Act 1975 (Cth):
i. the applicant is entitled to permanent impairment of 10% pursuant to section 24 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) in relation to sexual dysfunction; and
ii.the non-economic loss compensation calculation pursuant to section 27 of the SRC Act is remitted to the respondent for determination; and
iii.the respondent is to pay the applicant’s reasonable costs as agreed or assessed.
..............................[sgd]..........................................
A.G. Melick SC, Deputy President
Catchwords
COMPENSATION – permanent impairment and non-economic loss for sexual dysfunction – degree of whole person impairment – assessment of impairment under Comcare Guide or AMA Guide – decision under review set aside and substituted.
Legislation
Safety, Rehabilitation and Compensation Act 1988 ss. 4, 5A, 14, 24, 27
Cases
Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Ticsay (1992) 38 FCR 181
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
Page v Telstra Corporation Limited [2004] FCAFC 80Whittaker v Comcare (1998) 86 FCR 532
Secondary Materials
American Medical Association’s Guide to the Evaluation of Permanent Impairment 5th edition 2001
Comcare Guide to the Assessment of the Degree of Permanent Impairment, Edition 2.1
REASONS FOR DECISION
A.G. Melick SC, Deputy President
5 February 2015
This is an application for review of a determination made by the respondent on 25 October 2013, affirming the determination made on 8 October 2013 which denied the applicant’s claim for permanent impairment compensation in respect of sexual dysfunction pursuant to the SRC Act. On 8 October 2013 the respondent denied the applicant’s claim for permanent impairment compensation on the basis that table 11.1 of the Comcare Guide, edition 2.1 was intended for use only to assess permanent impairment resulting from neurological impairment for local lesions. It was of the view the applicant’s dysfunction was due to groin pain.
On 25 October 2013 the respondent affirmed the determination denying permanent impairment pursuant to sections 24 and 27 of the SRC Act due to sexual dysfunction. That determination was made on the basis that the applicant did not have an accepted compensable condition. This was a complex matter overlayed by several impairments and the subject of about 48 medical reports over a 12-year period.
I note the applicant was born 2 August 1962 and on 8 February 1996 he commenced employment with Australia Post. The work often involved repetitive lifting of bins which were supposed to have a maximum of 16 kilograms. On 20 February 2002 he suffered an injury of the right inguinal hernia whilst carrying out those duties. An incident report was submitted and it appears T8.
On 21 February 2002 the applicant attended a GP, Dr Shroot, in relation to that injury and in the relevant medical certificate, Dr Shroot noted the applicant had sustained a strained right groin and certified him fit for full but restricted duties. However, on 27 February, the applicant attended Dr Shroot again and was certified unfit for work until 20 March due to his strained right groin and back injury. Dr Shroot noted the applicant’s back was causing the most discomfort. On 15 March he lodged a claim for rehabilitation and compensation for a strained right groin and back suffered whilst sorting trays.
However, on 6 May 2002 a report (T24) was obtained from a consultant rheumatologist, Dr Whittaker. He diagnosed the right inguinal hernia and noted there might also be some pathology in the right hip flexor tendons, but he opined that the applicant’s back pain was unrelated to his right groin injury and the back pain was pre-existing and not work related.
On 30 May 2002 at T30 a WorkCover medical specialist, Dr Davis, reported and diagnosed a reducible right inguinal hernia, a degenerative condition of the cervical, thoracic and lumbar spines. Importantly he opined the right inguinal hernia was responsible for the applicant’s right groin pain and was work related.
I note that the applicant’s version of the pain and condition he has which was contained in a statement exhibited in Exhibit 1. He states at paragraph 3 that:
I have constant pain in my right groin and lower back. When I start to become sexually aroused the pain in my right groin increases and I experience pain in the base of my penis.
At paragraph 4:
The pain in my penis increases as I become aroused and the pain in my right groin increases as well. I then lose my erection and I continue having pain in my penis. The pain generally remains for a few days. The pain in my groin returns to its usual levels. Should I attempt any sexual activity that requires back movement I experience as well as the previously described pain in my penis and right groin, increased pain in my back. I then lose my erection and I experience follow-up pain, as above, in my back. On a few occasions over the last few years I’ve had a nocturnal emission. Due to my back and groin pain I usually wake about two or three times each night. If I wake up and I’ve had a nocturnal emission, I have pain in my penis and increased pain in my right groin. The pain in my penis remains for a few days as set out above.
At paragraph six:
I rarely attempt to masturbate due to the pain in my penis but if I do, I experience pain as set out above.
I note the applicant was extensively cross-examined in some detail but no attempt was made to discredit the statements contained in Exhibit 1 although Mr Jones did draw a distinction from the applicant, or try to draw a distinction from the applicant, about pain in the groin and pain at the base of the penis, noting that he’d indicated to various medical practitioners from time to time versions which he contends were different, although I feel that pain in the groin and pain at the base of the penis may be a distinction without a difference.
On 2 July 2002 surgeon Dr Peter Barry operated on the applicant for the hernia. His report (Exhibit 3) notes the operation performed was an open mesh repair of right inguinal hernia. Operative findings, direct right inguinal hernia. And procedure:
A skin crease incision was made to expose the external oblique aponeurosis which was split to expose the posterior wall. There was a considerable bulge medial to the deep ring and there was no hernia sack within the spermatic cord. Posterior wall was plicated and over this a polypropylene mesh was sutured in place to cover the defect and reconstruct the deep ring. Care was taken at all times to avoid injury to the iliohypogastric nerve as well as the ilioinguinal nerve and the genital branch of the genitofemoral nerve. Haemostasis was secured and the wound was closed in layers with a subcuticular 30 Monocryl to the skin.
I’m not going to refer to all of the medical reports but only refer to some of the ones which I consider relevant. Following the surgery (on 6 September 2002) Dr Barry reported at T49 that he last reviewed the applicant on 15 August 2002 and the applicant was in a lot of pain, both from the back and right groin and scrotum.
Dr Barry noted the applicant had a casual shooting pain radiating into the right testes and expressed concern there may be some nerve irritation. He noted the applicant’s lower back and buttock pain was unrelated to the hernia in the right groin. He provided a further report on 10 September 2002 noting the applicant had some referred neurologic type pain radiating into the upper scrotum and base of the penis since the surgery on 2 July. I note a further report from Dr Barry on 24 October 2002, where he noted among other things:
Unfortunately, it appears that Robert has really made no progress since, in fact, February and he still has the same back complaint as well as pain at the post-operative site of the right inguinal hernia repair. On a very careful examination this consists of tenderness under the actual scar itself as well as a very tender point just lateral to the base of the penis. There was no obvious tenderness in the thigh although there was a voluntary spasm of the abductors when I examined him. There was no obvious radiation of the pain and I am at loss to explain its exact nature. It does not fit characteristically into any of the neuralgic type pains or their distribution.
Dr Barry was at a loss to explain the basis of the pain but it’s important to note that there has been consistent reporting by the applicant of pain in groin and the base of his penis. On 16 January 2003 a right hip X-ray suggested a light pubic symphysis and clinical correlation was recommended.
On 8 October 2008 a report was provided by a consultant psychiatrist, Dr Saboisky, and it reported specifically for a permanent impairment claim for chronic migraines and sexual dysfunction secondary to chronic pain. Dr Saboisky reported the applicant suffered impairment due to sexual dysfunction and opined it was not due to the pressure or the treatment for chronic pain but rather the pain caused by the groin operation the applicant underwent. He noted the applicant reported any erection was associated with groin pain and would cause such extreme pain he would lose the erection.
On 30 December 2008, Dr Lethlean, a neurologist, provided a report. In regards to work relationship, Dr Lethlean opined there was no direct relation between the applicant’s sexual dysfunction and his condition of lumbar spondylosis at right L5 intervertebral disc prolapse. He advised the relevant pain was localised to the inner groin and was not due to pain of nerve root origin, nor referred from his spine.
He reported that the applicant had no difficulty with erection but intercourse was prevented by pain and when examining the applicant, pain was indicated in the area of the hernia scar, above and below. The sensation was normal in the applicant’s penis, scrotum, abdomen and thigh. He opined that table 12.9 of the Comcare Guide second edition was not appropriate and advised the applicant’s sexual function was not secondary to neurological impairment. He opined table 11.1.1 was the most appropriate and assessed 10 per cent whole person impairment (WPI). He advised it appeared the penile erection locally increased the applicant’s pain possibly because of near tissues.
On 6 July 2009 a report was obtained from Dr Shatwell, an orthopaedic surgeon, who was mainly concerned with a degenerative disc disease in the lumbar spine. He advised the diagnosis did not explain the applicant’s right groin and hip symptoms. He opined the right groin pain might be related nerve irritation caused by the hernia repair.
Dr O’Neill, a consulting neurologist, on 20 July 2009 reported that the applicant’s claimed sexual dysfunction arose out of a consequence of localised right groin pain which followed the surgery to his right inguinal hernia and in that regard was indirectly work related. He noted the applicant believed there had been a local nerve injury at the time but he said that was outside his area of expertise.
On 25 August 2009 a surgeon, Dr Burke, reported and diagnosed at T197 periostitis at the right pubic tubercle resulting from the repair of the right inguinal hernia in 2002. Moderately advanced and generalised spondylitis apparently based and developmental osteochondritis. There was no evidence of nerve root embarrassment at any level. He opined there was no evidence of nerve root injury to the groin however the periostitis appeared to have resulted from the right inguinal hernia surgery.
He advised it would possible to surgically explore the right groin and remove any offending suture although such an operation would not necessary relieve the applicant’s painful symptoms. He advised that while he accepted that erectile inhibition could well be due to pain there was no basis for neurological impairment of sexual organs per se that could be rated according the Comcare Guide second edition.
On 1 March 2013 a consultant surgeon, Dr Griffith, at T233 reported and diagnosed persistent post-operative inguinal neuralgia possibly due to extrinsic pressure from scar tissue or a current aggravation of constitutional lower lumbar spondylosis and labral tear and degenerative change in the right hip. He noted the right inguinal hernia repair was sound and it appeared to be the site of post-operative right-sided inguinal neuralgia which he advised was not an infrequent complication of hernia repair. He advised it was usually due to gradual development of extrinsic scar tissue surrounding the nerve trunk and causing compression neuralgia of slow but progressive symptoms after onset.
On 25 January 2014 Dr Eaton, an occupational physician qualified by the applicant, at Exhibit 5 reported that the applicant continued to report ongoing right groin pain, sexual dysfunction, loss of erections and opined it appeared to be associated with his chronic pain and it was likely that the nerve entrapment had occurred in the right groin as a result of surgery. He advised that the applicant reported constant pain in the lower back and groin and that some days he could hardly walk.
On 12 March 2014, Dr Le Leu, another occupational physician, at Exhibit 8 reported his diagnosis of nerve entrapment following hernia repair. He opined that the applicant’s current symptoms drastically affected his sexual function and he would continue to have his current range of symptoms for the foreseeable future. He opined the applicant would have permanent impairment and if it could not be assessed, that the problem was with the guidelines rather than the applicant. He opined table 11.1.1 should be applicable but none of the descriptors covered the situation.
He then advised that he followed Dr Lethlean’s argument that table 11.1.1 was applicable because it was a local penile problem resulting from pain provided by erection than generalised pain preventing erection.
Both doctors gave evidence and were cross-examined, and I found both their evidence particularly helpful. They both opined that the groin pain was most likely as a result of a sequelae of the hernia operation, although neither could point to any particular observable cause. Dr Eaton had noted in his report that the applicant upon examination was extremely tender in the right groin and pain was quite localised and allodynia was quite severe. On examining the right groin he could not detect a hernia and no impulse was palpable.
One of the diagnoses he gave was right groin pain post hernia repair, probable nerve entrapment with the development of localised neuropathic pain. He said that he believed the applicant is rated 10 per cent whole person impairment because of sexual dysfunction, table 11.1.1, male reproductive organs, penis. Sexual function is possible but always with a degree of difficulty with erection, ejaculation and/or sensation.
Dr Le Leu noted that in the right inguinal region he has ongoing pain as a deep aching throbbing pain. He opined that the applicant had nerve entrapment following a hernia repair. Then later he said that in his opinion the applicant had a permanent impairment and impairment should therefore be assessed while using the guidelines. If it cannot be assessed then the problem is with the guidelines rather than the applicant.
As pointed out by Mr Jones, both in cross-examination and submissions, a number of reports diagnosed a specific cause of the pain. In fact, many theories have been advanced, including one from Dr Burke, which suggested a stich had been left in as a result of the operation. Although as Mr Jones points out, Dr Burke did not have the benefit of seeing the post-operative reports by Dr Barry and Mr Jones emphasised how careful Dr Barry had said he’d been. He also noted that ultrasound scans, which are often obtuse, could show no obvious defect.
He submitted quite appropriately the applicant had no medical expertise and the doctors had to rely upon the applicant’s attribution as to the cause of his sexual dysfunction. He also submitted just because the applicant experienced certain symptoms after the groin operation that did not necessarily mean the groin operation produced that symptomology. He suggested this does appear to be another example of the logical fallacy post hoc ergo propter hoc (after this, therefore because of this).
He further submitted that it is tempting because of the temporal sequence to draw a conclusion as to causality but the fallacy lies in coming to a conclusion based upon solely on the order of events rather than taking into account other factors that might rule out the connection. One of the matters he referred to is Dr Burke’s report, which I’ve already referred to at T197, where Dr Burke opined that:
It appears that a probable nylon anchor stich was inserted through the pubic tubercle rather than through the nearby recurved part of the inguinal ligament and this has resulted in a degree of periostitis. It is reasonable that this condition could cause pain on various movements and could interfere with sexual intercourse.
However, I note that in all the medical reports, apart from a brief reference in one of the psychiatric reports, there is no other probable cause of the pain opined by any of the medical specialists. Under cross-examination it was indicated that it’s very difficult to find a precise cause of pain such as this without doing surgical intervention. Mr Jones pointed out that both Doctors Eaton and Le Leu were occupational physicians and, therefore, their experience in relation to hernias would be limited. And he obtained from both doctors concessions that when the applicant came to them he came to an attribution in his mind that the problem arose from the hernia operation.
Dr Eaton said that it’s only in a small number of cases that pain occurs after a hernia operation but it does occur. He pointed out you cannot image the nerve. He indicated that when trying to determine the underlying pathology one looks at all the factors and possibilities and probabilities, and at the end of the day he considered nerve entrapment to be the most likely issue. That opinion was not displaced prior to being referred to in Exhibit 3, being the post-operative report of Dr Barry.
Dr Le Leu conceded that the mesh could also cause entrapment but it couldn’t be seen in any image to demonstrate any trapped nerves. He opined that it could be entrapment and he considered that to be the most likely cause. He said the most likely cause is trapped nerves but couldn’t pinpoint it to any particular cause.
I take into account the fact that the applicant has given a consistent history of groin pain and pain at the base of the penis since his operation on the inguinal hernia. He’s been consistent in his reporting to the doctors about that pain. He was consistent in his evidence and I saw no reason to disbelieve him. In fact, I thought he was quite an impressive witness in spite of his anger and frustration which may well be a function of some of the other conditions from which suffers.
Even having regard to Mr Jones’ comments about the fallacy of assuming causal connection merely because of a temporal connectivity, in the absence of any other cogent evidence for any other effect of the pain, I am satisfied on the balance of probabilities that the pain upon erection is a result of the hernia operation and that the sexual dysfunction is caused by that pain.
It was correctly pointed out by Mr Jones, the only matter before the tribunal, despite the fact I’ve referred to some other medical issues, is the issue of permanent impairment in respect to the sexual dysfunction. He also notes the respondent is only liable to pay compensation in respect to an impairment related to an injury for which it is liable and not an impairment per se.
I note at this stage that the impairment is the sexual dysfunction and not the pain that I’ve already found causes it. At this stage I’ll set out some of the relevant legislation. The Safety, Rehabilitation and Compensation Act1988 (SRC Act) provides from the Interpretations section 4(1):
In this Act, unless the contrary intention appears … 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.
Section 4(3) states:
For the purposes of this Act, any physical or mental injury or ailment suffered by an employee as a result of medical treatment of an injury shall be taken to be an injury if, but only if:
(a) compensation is payable under this Act in respect of the injury for which the medical treatment was obtained; and
(b) it was reasonable for the employee to have obtained that medical treatment in the circumstances.
Compensation for injuries is dealt with at 14(1):
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
I’m satisfied that the sexual dysfunction is an injury pursuant to 5A(1)(b) of the Act which defines injury as meaning:
An injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment;
Or (c):
An aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment.
But does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
I find that the injury suffered in the course of the employment was the hernia caused by the lifting, and the aggravation is the pain suffered as a result of the operation to rectify that hernia. I also find that it was reasonable for the applicant to have obtained the medical treatment in all the circumstances.
Compensation for injuries resulting in a permanent impairment is dealt with under 24(1):
(1) 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.
(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.
Section 24(6) states:
The degree of permanent impairment shall be expressed as a percentage.
24(7) states that:
Subject to section 25, if:
(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.
“Approved Guide” at section 28(1):
(1) Comcare may, from time to time, prepare a written document, to be called the “Guide to the Assessment of the Degree of Permanent Impairment”, setting 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.
(2) Comcare may, from time to time, by instrument in writing, vary or revoke the approved Guide.
28(4) says:
Where Comcare … is required to assess or re‑assess, or review the assessment or re‑assessment of, the degree of permanent impairment of an employee resulting from an injury, or the degree of non‑economic loss suffered by an employee, the provisions of the approved Guide are binding on Comcare, the licensed authority, the licensed corporation or the Administrative Appeals Tribunal, as the case may be, in the carrying out of that assessment, re‑assessment or review, and the assessment, re‑assessment or review shall be made under the relevant provisions of the approved Guide.
That of course applies to me. I find the Guide quite confusing and contradictory, and set out what appear to be the relevant parts noting that there often appears to an inconstancy between the table therein and the introductory comments beneath which they appear. At page 165 of the Guide in the right hand column it states:
Tables 11.1.1, 11.1.2, 11.1.3, and 11.1.4 are not to be used with respect to sexual dysfunction arising as a result of neurological impairments rather than local reproductive pathology.
However, it then goes on in the next paragraph:
Tables 11.1.1, 11.1.2, 11.1.3, and 11.1.4 are intended for use only to assess impairment resulting from neurological impairment, or local lesions of –
And it sets out several categories, including the penis. At the bottom the following the sentence appears:
These tables are not intended for use where sexual function is impaired for any other reason (for example, pain or depression).
This sequence to me appears to be contradictory, noting in particular Dr Eaton’s evidence to the effect that neurological impairment usually results in pain. I go to firstly the first paragraph:
The tables … are not to be used with respect to sexual dysfunction arising as a result of neurological impairments rather than local reproductive pathology.
One view that could be taken is that the pain on erection is caused by a neurological impairment. That is a trapped nerve or some other like condition, causing the pain to radiate from the groin area to the base of the penis. Another interpretation could be that pain to the base of the penis is local reproductive pathology. Furthermore, if a determination is not able to be made in respect to the first heading on the basis that the sexual dysfunction arises as the result of neurological impairment, that is the pain, we have a problem because that would appear to be inconsistent with the next paragraph which says:
The tables … are intended for use only to assess impairment resulting from neurological impairment, or local lesions –
of the penis. It could be read as that this can be used for the impairment suffered by the applicant because it is an impairment resulting from a neurological impairment, i.e. the pain. If that is the case it is clearly contradictory to the first part and, furthermore, it seems to be excluded by the sentence at the bottom which states the tables are not intended for use for any other reason including pain or depression.
I find it difficult to construe the first paragraph as applying to the applicant’s impairment because I consider the correct way to read that is that it is not be used in respect to sexual dysfunction arising as a result of neurological impairment. But it seems to me that it could be brought under the second paragraph in that it’s intended to be used in assessing an impairment resulting from a neurological impairment, that is, resulting from the pain. If that was the case, turning to 11.1.1 I would assess the whole person impairment at 10 per cent. That is:
Sexual function possible but always with a degree of difficulty of erection, ejaculation and/or sensation.
I would assess it at 10 per cent whether the table is held to be relevant pursuant to either interpretation of either the first or second paragraph. If I’m wrong about that and table 11.1.1 does not apply, one then has to turn to 12.9, “Neurological impairment affecting sexual function.” The introductory notes say:
Where there is loss of awareness and the capability of having an orgasm because of a neurological impairment, table 12.9 below may be used. Impairments of sexual function not of documented neurological origin are not assessed under table 12.9. They are assessed under Chapter 11, “The reproductive system.”
That then appears to be contradictory to the table which says:
Sexual functioning is possible, but with difficulty of erection or ejaculation in men, or lack of awareness, excitement or lubrication in either sex.
The applicant submits that a beneficial construction, which I will deal with below, should be placed upon that and that I should be able to apply that table and, once again, the applicant would have a 10 per cent whole of person impairment. It would appear that unless expressly excluded from consideration the table should apply, that is table 12.9. But if it doesn’t and I’m wrong about that, one then has to start to look further. Point 12 of the guidelines points to exception 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 American Medical Association’s Guide to the Evaluation of Permanent Impairment 5th edition 2001.
It then goes on to say:
An assessment is not to be made using the AMA Guide to the Evaluation of Permanent Impairment for –
among other things –
chronic pain conditions, except in the case of migraine or tension headaches.
That would then seem to exclude the use of the AMA guidelines. However, the applicant contends that what we’re talking about here is not chronic pain conditions. The impairment is not a chronic pain condition but sexual dysfunction. If he’s correct about that then the AMA guide is the appropriate one to use and under table 7.5, class 1, 0 to 10 per cent impairment of a whole person it says:
Sexual function possible with varying degrees of difficulty of erection, ejaculation or sensation.
I would consider the applicant to be at the highest end of that table and once again his sexual dysfunction impairment would result in a whole of person impairment of 10 per cent.
I note when making these considerations I am conscious of the guidance or directions provided by Whittaker v Comcare (1998) 86 FCR at 532, which deals with the scheme of the Act and beneficial interpretations. This decision was followed in Page v Telstra Corporation Limited [2004] FCAFC 80, which also approved Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Ticsay (1992) 38 FCR 181 which is cited with approval. I turn to some relevant revisions at pages 544 and 545 where it states that:
The Court is entitled to resolve the issues of interpretation raised by the case stated by adopting the approach referred to in Ticsay.
Olney J said there at 188:
The first principle established by the authorities is clearly stated by Hill J in Thiele v Commonwealth (1990) 22 FCR 342 at 346 when he said in relation to the precursor of the Act:
“The present legislation is socially remedial legislation intended to benefit workers and should be given a construction which advances its purposes as such. Thus where two constructions are possible, that which is favourable to the worker should be preferred: Wilson v Wilson’s Tile Works Pty Ltd (1960) 104 CLR 328 at 335 per Fulmar J.”
Reference was also made to the dictum of Gibbs J (as he then was) in Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336 at 350: “[W]here two meanings are open … it is proper to adopt that meaning that will avoid consequences that appear irrational and unjust.” Having regard to the definition of the term “impairment”, to the provisions of sections 14 and 24, and to the particular purpose of the Guide as provided in section 28(1), it seems that the legislative policy of the Act is to provide for the payment of compensation to an employee who has suffered an injury resulting in a permanent impairment. The Guide should be construed and applied in aid of the general statutory purpose, not as a means of limiting it.
A number of points can be made from the statutory context of the Guide. The first is that the general principle of the Act, insofar as it makes provision for Commonwealth employee compensation, is that contained in section 24(1).
Namely:
That compensation is payable where an employee suffers an injury that results in a permanent impairment. The second point is that section 24(7) shows that it is only where Comcare determines, by applying the Guide, that the employee’s degree of permanent impairment is less than 10% that the employee is disentitled to compensation in respect of the injury already determined to have resulted in permanent impairment. Only then will there be an exception to the general principle in section 24(1).
The general legislative purpose or intent is that an employee who suffers injury causing more than minor permanent impairment is entitled to compensation. The third point is that it is only permissible for Comcare to turn to the Guide once it has reached the conclusion, after taking into account the matters listed in 24(2) of the Act, that the employee has suffered an injury which has resulted in a permanent impairment. The Guide then becomes relevant, but only insofar as it contains the criteria by reference to which Comcare must assess the degree of that employee’s permanent impairment. The Guide, which has this limited role, should not be allowed to limit the general legislative purpose.
That, in my opinion, makes it clear that one cannot say because the applicant’s impairment is not covered by the Guide that he cannot be compensated for it. So if I’m wrong about it being either covered under 11.1.1 or 12.9; or AMA 5, table 7.5, an assessment can still be made as set out at page 11 of the AMA.
In situations where impairment ratings are not provided, the Guide 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 the activities of daily living.
Dr Le Leu conceded under cross-examination from Mr Jones that if using clinical judgment one is really plucking a figure out of the air. This is what he said occurred prior to the guides being implemented. He said the guides themselves, or the AMA guide in particular, was a compilation of figures plucked out of the air but at least it gave the situation where there was consistency throughout in relation to guidelines and diagnoses. He was specifically asked about impairments and in his report he opined that if 11.1.1 applied he would choose 15 per cent of whole of person impairment. If chapter 12 was applied he would also apply 15 per cent WPI, and if going to the AMA 5, he would assess it at 13 per cent. The reasons for that are set out in his report at pages 9 through to 12.
He was asked today if asked to do a clinical assessment he would assess at about 10 per cent. He conceded although he’d assessed at 15 per cent in his report, on being cross-examined referred to the tables, he agreed that 10 per cent was more closely related to the applicant’s condition. Mr Jones submitted that neither Dr Eaton or Dr Le Leu, both who are occupational physicians, have given sufficient basis for their generalised opinion, in particular Dr Le Leu for a clinical judgment of 10 per cent, to allow appropriate scrutiny in accordance with the principles in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305.
With respect, I don’t accept that submission. I note that there’s quite a detailed report from the doctor and he said he could also use the guides an indication. I conclude that the judgment in Whittaker also permits as wide a possible use of the guides as well as wide a beneficial interpretation as possible to ensure that where possible the guides are used for the calculation of the appropriate whole of person impairment.
So in short, at the end of the day, I determine that the applicant has a whole of person impairment of 10 per cent pursuant to 11.1.1 and if I’m wrong about that, I would rely upon 12.9, and if wrong about that, I would then move to AMA 5, table 7.5, once again at 10 per cent, and if I’m wrong about that I rely upon Dr Le Leu’s assessment of 10 per cent using clinical judgment, comparing measureable impairment resulting from the unlisted condition with measureable impairments resulting from similar conditions.
I certify that the preceding 68 (sixty-eight) paragraphs are a true copy of the reasons for the decision herein of A.G. Melick SC, Deputy President ..............................[sgd]..........................................
Associate
Dated 5 February 2015
Dates of hearing 6 and 7 November 2014 Counsel for the Applicant Allan Anforth Advocate for the Applicant Walter Hawkins Solicitors for the Applicant Maurice Blackburn Lawyers Counsel for the Respondent Paul Jones Advocate for the Respondent Graham Jones Solicitors for the Respondent Graham Jones Lawyers
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