Slattery and Comcare [2010] AATA 56 (28 January 2010)

Last Updated: 28 January 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 56

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/1204

GENERAL ADMINISTRATIVE DIVISION		)
	Re		Craig Slattery

Applicant

And

Comcare

Respondent

DECISION

Tribunal

Professor RM Creyke, Senior Member Dr M Miller, Member Mr M Hyman, Member

Date 28 January 2010

Place Canberra

Decision

The Tribunal orders the matter be remitted to the Respondent for reassessment using the fifth edition of the American Medical Association Guide.

.......................[sgd]....................
Professor RM Creyke, Senior Member
Dr M Miller, Member
Mr M Hyman, Member

CATCHWORDS

COMPENSATION – Degree of impairment to elbow injury – whether loss of grip strength is an impairment assessable under Respondent’s approved guide – whether it can be assessed in accordance with the American Medical Association’s guide – which edition of the AMA guide – matter remitted to Respondent

Administrative Appeals Tribunal Act 1975 (Cth), s 34E(3)(b)

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 28(4)

Pavic and Comcare (1996) 45 ALD 409

Whittaker v Comcare [1998] FCA 1099; (1998) 86 FCR 532

Re Peters and Australian Postal Corporation [1994] AAT No 9680 (Unreported, 23 August 1994)

Re Edwards and Comcare [2001] AATA 522; (2001) 64 ALD 495.

Comcare v Ticsay [1992] FCA 468; (1992) 38 FCR 181

Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd [1975] HCA 28; (1975) 132 CLR 336

Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535

Coulter and Comcare (2005) ALD 315

28 January 2010 REASONS FOR DECISION

	Professor RM Creyke, Senior Member Dr M Miller, Member Mr M Hyman, Member
BACKGROUND

1. Mr Slattery is employed by the Australian Federal Police (AFP) as a trainer with the AFP Operational Response Group. He is currently 40 years of age. He trains AFP personnel before they leave on overseas deployment. The work involves camping, weapons training, counter-insurgency tactics such as personal combat techniques, high risk searches, and physically demanding activities such as navigation, diving, drop-offs and pick-ups by helicopter, and driving on difficult terrain. Fitness is important to him.
2. On 19 December 2006 he was injured at work while riding a quad motorcycle which turned sideways in loose gravel when he was negotiating a corner and rolled over. Mr Slattery landed heavily on his left elbow and fractured his left arm. The injury involved 50 per cent of the bone in the radial head of his left arm and Mr Slattery underwent an operation on 31 December 2006.
3. Comcare accepted liability for the injury on 31 January 2007, with a date of injury of 19 December 2006. Mr Slattery returned to work on restricted duties on 22 January 2007. Continuing pain led to a further operation on 11 October 2007 to remove the screws in the left radial head. Mr Slattery was certified fit for work from 14 November 2007. He claimed permanent impairment on 1 June 2008.
4. That claim was rejected by Comcare on 18 November 2008, a claim upheld on review by Comcare on 17 March 2009. Mr Slattery sought further review by the Tribunal on 23 March 2009.
5. On 9 November 2009 the parties submitted for neutral evaluation the following question:

Whether the Applicant’s claimed impairment, comprising a loss of grip strength, is of a kind that can be assessed in accordance with the second edition of the Guide to the Assessment of the Degree of Permanent Impairment?

A neutral evaluation was provided by the Tribunal on 13 November 2009.

6. At the substantive hearing on 2 December 2009, counsel for Comcare sought to tender the neutral evaluation, there having been no formal notification in advance of the hearing that the applicant objected to its tender.[1] In the result counsel for Comcare withdrew the request to tender the document and the decision was made without knowledge of the findings in the neutral evaluation report.

MEDICAL EVIDENCE

7. Following the second operation on Mr Slattery’s arm on 11 October 2007, Dr Aubin, the orthopaedic surgeon for Mr Slattery, reported on 23 November 2007 that the wound was healing well but with some swelling and stiffness of the elbow especially on supination, that is, when the arm is turned so the palm of the hand faces upwards. Dr Aubin said Mr Slattery had regained a range of motion in his left elbow with a slight lack of full extension. His ‘pronation [turning the arm so the palm of the hand faces downwards] and supination are 90o’. He noted that Mr Slattery was suffering an overall decreased level of pain but some aching continued.
8. In a report of 5 November 2008, on behalf of Comcare, Dr William Coyle, consultant orthopaedic surgeon, assessed Mr Slattery as having 4 per cent whole person permanent impairment under Tables 9.10a and 9.10b of the Guide to the Assessment of the Degree of Permanent Impairment (2005) (2nd ed.) (‘Approved Guide’) with the date of permanency being the date of the original injury. The 4 per cent consisted of:
   • 1% loss of elbow extension;
   • 1% loss of elbow flexion;
   • 1% loss of forearm rotation; and
   • 1% loss of elbow supination.
9. Dr Coyle listed Mr Slattery’s symptoms as sharp pain in the posterolateral aspect of his elbow on movement or attempted use, pain resulting from all elbow use, but not at rest, and post traumatic osteoarthritis of the left elbow as a result of the injury.
10. In a supplementary report of 18 August 2009, Dr Coyle assessed Mr Slattery as having suffered a zero per cent whole person impairment under Table 9.14 of the Approved Guide. Dr Coyle considered he had not suffered a loss of digital dexterity, the function addressed under ‘upper extremity function’ in Table 9.14. Dr Coyle also considered that Mr Slattery could lift up to 30 kg with his left hand, although possibly not repetitively. He considered he had not suffered a loss of grip strength as a result of his compensable injury. Dr Coyle assessed a 4 per cent impairment under the Tables 9.10a and 9.10b of the Approved Guide.
11. Dr Graham Griffith, a consultant surgeon, who has specialist qualifications in chronic musculo-skeletal and medico-legal matters, provided a report dated 25 September 2007. The report assessed Mr Slattery, using the AMA Guides (5th ed.) Tables 16-34 to 16-37, as suffering 12 per cent whole person impairment. His report listed current symptoms as discomfort in the left elbow joint, worse with cold; stiffness; loss of pronation and flexion; marked crepitus (a grating sound); and pain with jarring, driving a car and pushing. He diagnosed arthralgia; persistent flexion contracture left elbow (20 degrees); limited pronation and supination of the left elbow; and effective loss of half left side grip strength. To prevent further post traumatic osteoarthritis to the elbow, he recommended steroid treatment and an arthroscopy with possible insertion of a prosthesis.
12. In a supplementary report of 29 June 2009, Dr Griffith assessed Mr Slattery as having suffered 3 per cent whole person impairment under the Approved Guide Table 9.10a in relation to left elbow motion. In relation to upper extremity function, as measured by Table 9.14, his WPI was 5 per cent. His report said the impairment had become permanent 12 months after his last surgery on 31 December 2006.
13. Dr Griffith also provided an assessment using Tables 16-34 and 16-37 of the AMA Guide (5th ed.), which measure range of motion of the left elbow. Using these tables, Dr Griffith found Mr Slattery had a 3 per cent permanent whole person impairment. However, he referred to an alternative measurement which was derived from diminished grip strength, in accordance with the methodology on p 509 (‘Limited Grip – Normal Grip/Normal Grip = Strength Loss Index’) and gave an assessment of 50.5 per cent. If that figure was inserted in Table 16-34 of the AMA Guide (5th ed.) it would give a 20 per cent impairment of the upper extremity, or alternatively (Table 16-3, p 439) a whole person impairment of 12 per cent. Dr Griffith tested Mr Slattery’s grip strength using a dynamometer and found the average figure was 30.5 kg on the left side compared with 61.5 kg on the right side.
14. Dr Griffith said that Mr Slattery’s loss of grip strength can not be assessed under Table 9.14 of the Approved Guide and suggested that reference could be made to the AMA Guide (5th ed.) for an alternative measurement of Mr Slattery’s grip strength, but acknowledged that it was not open to him to resort to the AMA Guide simply as a means of obtaining a preferable assessment if the employee’s impairment is capable of being assessed under the Approved Guide.
15. At the hearing, Dr Griffith said Mr Slattery's impairment was significant but this was not reflected in the Approved Guide. He agreed that Mr Slattery is a particularly fit person and his work is very physical. His impairment therefore affects him more than, for example, an office worker. In particular, his loss of grip strength is debilitating. The results were consistent with a grossly degenerative radioulnar condition which is likely to get worse. In his view, if Mr Slattery had been embellishing his disability, there would have been a lack of consistency on the dynamometer results but this was absent. The results showed his loss of grip strength is genuine.
16. Mr Slattery's grip strength for the right arm was approximately 12 kg greater than average, while on his left side it was 18-20 kg lower than normal. The crepitus of his left arm was consistent with a loss of grip strength in the radial head. The radial head is grossly degenerative. In effect he has lost about half his grip strength in the left arm.
17. In Dr Griffith’s opinion grip strength cannot be assessed under Table 9.14 Upper Extremity Function on p 109 of the Approved Guide. There is no specific reference to grip strength and the Table has entirely neglected that element of upper extremity function. This might be because grip strength is not often used as a measure of impairment. He affirmed that the Approved Guide is selective and this is one of the areas which have been omitted. However, the AMA Guide Table 16-34 and the accompanying text on pp 498-507 does separate out grip strength and the formula on p 509 can be used to assess impairment. He had used Mr Slattery's right hand for 'normal strength' even while acknowledging that his strength was not the average person's grip strength. He acknowledged that the assessment of grip strength in his most recent report was different from that shown in his 2007 report, but said this was due to his new dynamometer which provides more accurate measurement. He believed the correct figures were those shown on p 3 of his 29 June 2009 report.
18. By contrast, Dr Griffth said the 5 per cent figure he assessed under the Approved Guide was because Mr Slattery has normal digital dexterity and has no limitations in use of his extremities for personal care, Mr Slattery could lift 30 kg; lace his shoes easily; join paper-clips without difficulty and write 2 A4 pages or more at a time. In his view, however, it is counter-intuitive to produce a result under the Approved Guide which clearly does not reflect the person's level of impairment. He said if Table 9.14 under the Approved Guide is used, it produces a result which is irrational, inappropriate and ‘a nonsense’. The injury to Mr Slattery's elbow clearly causes him pain. There is no muscle loss but the pain, often without conscious intervention, inhibits his muscular activity and leads to functional loss. Dr Griffith conceded that, if Mr Slattery was on constant painkillers, he would have higher grip strength, but said this was unrealistic and would not be good for Mr Slattery in the long term.
19. Dr Griffith also said he knew there was a sixth edition of the AMA Guide but in his opinion no-one uses it. He does not have a copy and he does not know whether it has a separate table for grip strength. He also said it was possible to assess Mr Slattery's condition under Tables 9.10a and 9.10b of the Approved Guide but these are objective measurements assessing motor strength or ability, not grip strength. Hence in his opinion they were not applicable.

ISSUES

20. The issues as identified by the parties are:
    • Is the degree of impairment of Mr Slattery due to his elbow injury a whole person impairment (WPI) which is 10 per cent or greater?
    • Is Mr Slattery’s claimed loss of grip strength an impairment of a kind that can be assessed in accordance with the provisions of the Approved Guide (2nd ed.)?
    • If not, is the impairment of a kind that can be assessed in accordance with the AMA Guide (5th ed./6th ed.)?
    • If yes, what is the degree of permanent impairment?
    • Is Mr Slattery entitled to compensation under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (‘the Act’) and, if so, to how much compensation is he entitled?
    • Should the reviewable decision dated 17 March 2009 be affirmed?
      
21. Mr Slattery claims to be entitled to compensation under sections 24 and 27 of the Act. He says his entitlement arises because he suffers at least 12 per cent whole person impairment in respect of his accepted condition under the AMA Guide (5th ed.). His permanent impairment accordingly exceeds the 10 per cent threshold.
22. Comcare denies this contention on the basis that an assessment can be made under the Approved Guide and as a consequence there is no need to rely on the AMA Guide. A subsidiary issue which arose during the hearing was, if the AMA Guide was relied on, was it the fifth or the sixth edition of that Guide?

MR SLATTERY'S EVIDENCE

23. Mr Slattery owns and manages a 75 acre alpaca farm on which he runs 45 alpacas in his spare time. Despite his accident, he has retained his position as a trainer with the AFP Operational Response Group. Since the second operation in October 2007, Mr Slattery says his elbow condition has stabilised but he is restricted to some extent in his ability to perform his trainer role. He believes as a trainer he should personally be able to demonstrate the operational response techniques he is teaching. Following the injury to his elbow he can no longer do so.
24. Mr Slattery continues to undertake many of his former physical activities but needs assistance, particularly with lifting boxes of ammunition, roping, climbing ladders, hand-cuffing techniques and certain group activities such as wrestling on the ground. He cannot get handcuffs from his pocket with his right arm while holding the person to be handcuffed on the ground. He has difficulty doing endurance marching, long-distance swimming, and hanging on to a dry bag while ‘fin swimming’ to the shore. He can no longer do fine motor manipulations with his left hand. In particular, he has lost about half his grip strength in his left arm. He can not carry a heavy (40 kg) pack or do helicopter work involving ascending and descending rope ladders since his arm would give out half way. Nor can he do ‘fast roping’, that is, holding on to a rope to get down from a helicopter, at sea, or for other sheer descents.
25. He says his colleagues in his workplace know about his injury and are very supportive. He does physical exercises weekly, but is not required to do boat or helicopter work as regularly. He has been advised not to do push ups or bench press work. He can no longer do dips, barbell curls, or work with dumbbells since he can no longer grip as he used to do. When he was on a posting to the Solomon Islands in 2008, he had difficulty opening the heavy doors of armoured vehicles with his left arm and it greatly aggravated his symptoms, so he elected to drive instead.
26. Mr Slattery took possession of his alpaca farm two days after the accident, but said in evidence he had negotiated to buy the property some two months earlier. On his own he can no longer shear the animals or give them injections since this involves holding down the animal with one arm and shearing or injecting with the other. He also has to get help with mowing, slashing, fencing, lifting bags of concrete, and putting in metal strainer posts. By himself, he cannot pull bags of chicken feed or concrete off the back of his utility vehicle. In other words, he can no longer do all the farm work without help. He relies heavily on his right arm with limited assistance from his left arm, but can get pain any time he puts a load on his left arm.
27. At home, Mr Slattery cannot hang washing on the line, lift up the basket of washing, or ride a motor bike, because of the jarring. He has no difficulty cooking, cleaning, or doing his hair, but can not do anything requiring fine motor skills. He has a young son who needs to be bottle fed with a special bottle which has to be squeezed and he has difficulty both holding him and feeding him. He cannot carry heavy shopping bags. He has difficulty driving to work because it is 55 km each way with 18 km of dirt road, and he cannot keep both hands on the steering wheel for the full 45 minutes. After about 20 minutes of continuous driving his arm gets sore.

CONSIDERATION

28. The following facts are uncontroverted. Mr Slattery is an employee of the Australian Federal Police. In the course of his employment, he suffered an injury to his elbow which was compensable under the Act. In all the medical evidence it is accepted that he has a degree of impairment which is permanent. Mr Slattery impressed as a witness of truth.

WHICH GUIDE?

29. The first issue is whether Mr Slattery has a permanent impairment of at least 10 per cent. To assess the level of impairment, the Tribunal is required to use the Approved Guide[2] unless the assessment tables in the Guide can not be used, in which case the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guide) may be relied on. The first issue is to decide whether an assessment can be undertaken using the Approved Guide. If not, and the Tribunal uses the AMA Guide, a sub-issue is which edition of the AMA Guide should be used.
30. The introduction in the Approved Guide to the section on assessing upper extremities sets out the preconditions to use of particular tables in the Approved Guide. It states:

If the medical assessor feels that the impairment is not adequately assessed using ... Table 9.10..., and the condition involves radiographically demonstrated joint instability, radiographically demonstrated arthritis or where the employee has had an arthroplasty, the medical assessor may consider the effect of the injury on upper extremity function instead and determine the WPI using Table 9.14.[3]

31. This statement suggests that Table 9.14 may be regarded as an alternative to Table 9.10 but only where there is 'joint instability', 'arthritis' or where the person has had an 'arthroplasty'. There is medical evidence that Mr Slattery's elbow condition involves post operative osteoarthritis so it is clear that Table 9.14 may be used. All the medical assessments referred to Table 9.10 or Table 9.14 as alternatives for assessment purposes. However, there is evidence that neither table covers grip strength.
    

APPROVED GUIDE / AMA GUIDE?

32. Part II of the Approved Guide which deals with assessment of ‘the upper extremities’ including elbows states:

Where a condition cannot be assessed under a specific table in the Upper Extremities group, an assessment may be made under the provisions of the edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment current at the date of the assessment.[4]

33. The Principles of Assessment in the Approved Guide permit use of an alternative guide to Part I of the Approved Guide (which relates to sections 24 and 27 of the Act) in certain circumstances. That exemption applies ‘in the event that an employee’s impairment is of a kind that cannot be assessed in accordance with the provisions of Part I’.[5] In that event, ‘the assessment is to be made under the edition of the [AMA Guide] current at the time of assessment’.[6] For emphasis the principle concludes:

Any reference in this Guide to the [AMA Guide] is a reference to the edition current at the time of assessment, unless there is reference to a specific edition.[7]

34. The Approved Guide itself, in acknowledging in principle 12 that the AMA Guide is needed to fill gaps, infers that it is an imperfect tool and that in an appropriate case reference may be made to the AMA Guide. As a consequence, where no table in the Approved Guide enables an adequate assessment to be made, the medical assessor can have recourse to the AMA Guide.
35. There are principles from the case law on this issue. In Re Pavic and Comcare[8] the relevant Table provided tests for standing and walking, but had not referred to pain, the problem suffered by the applicant.[9] On that basis, the Tribunal decided that the AMA Guide could be used.[10] This step was justified in that case because it was recognised that the Approved Guide is selective and there are gaps in its coverage.[11]
36. However, if use of the relevant table simply results in the applicant not meeting the statutory threshold because the person's level of impairment is below 10 per cent, that is not a sufficient reason to use the AMA Guide.[12] Nor is it sufficient, for recourse to the AMA Guide, that the Approved Guide is capable of providing an assessment but the assessment is inadequate or unfair.[13] Drawing the line between deciding that there is no table which adequately assesses impairment and that the use of the Guide’s tables produces an unfair or inadequate result, requires careful analysis of the major and minor criteria listed in the relevant table.
37. In making that choice, it is useful to rely on Olney J’s judgment in Comcare v Ticsay,[14] approving the comment that the Act 'is socially remedial legislation intended to benefit workers and should be given a construction which advances its purposes.’[15] As Olney J also said:
    

[T]he 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.[16]

38. Similarly, at a more general level, Gibbs J, in Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd[17] said: 'Where two meanings are open ... it is proper to adopt that meaning that will avoid consequences that appear irrational and unjust.’[18]
39. The Tribunal notes that Table 9.10 of the Approved Guide, dealing with elbows, relates to ‘range of motion of the elbows’[19], not grip strength. While the major criteria for Table 9.14 are ‘digital dexterity’ and ‘use of extremity for personal care’, and minor criteria include ability to lift, there is no reference to grip strength.
40. Mr Slattery does not have major problems with digital dexterity, nor does his elbow injury restrict his personal care. However, Mr Slattery does have problems with some weight lifting, a minor criteria in Table 9.14, but this is apparently a measure of arm function rather than hand function. The criterion does not address the capacity to handle and grip heavy objects, as in holding down alpacas while injecting or shearing them, or nursing a baby while manipulating the special teat on a bottle for feeding. Neither Table 9.10 nor Table 9.14 measures grip strength. In other words, there is a gap in the coverage of the Approved Guide in relation to this aspect of impairment due to elbow injury.
41. The Act is intended to provide compensation for those who are injured in their employment[20] and impairment is to be assessed on the basis of the loss of, or loss of use of, or damage to, parts of the body.[21] Where a gap in coverage has been identified, the Guide itself acknowledges that the gap invites recourse to the AMA Guide. This is reinforced by the beneficial legislative policy underpinning the Act. Mr Slattery has suffered an impairment. He has significant damage to his left elbow, and partial loss of the use of his left hand. Dr Griffith testified that he had a ‘grossly degenerate elbow’. None of the tables in the Approved Guide captures that impairment. For these reasons the Tribunal finds that the alternative, more comprehensive AMA Guide can be consulted.

WHICH EDITION OF THE AMA GUIDE?

42. The latest edition of the AMA Guide is the sixth edition. That edition records the year of publication as 2008 although the Guide was published on 15 December 2007.[22] Mr Slattery’s application for compensation for permanent impairment was made on 1 June 2008. So the ‘Guide’ that was ‘current at the time of assessment’ was the sixth edition. There are a number of difficulties, however, in relying on the sixth edition of the AMA Guide. In the first instance, the assessments by Dr Griffiths which relied on the AMA Guide referred to the fifth, not the sixth, edition. Evidence was also provided by Dr Griffith at the hearing, that ‘no-one is using the sixth edition’, although no reason was given for that opinion, nor was it corroborated or challenged by other experts.
43. More problematic is that the sixth edition, like the second edition of the Approved Guide, lacks a table assessing grip strength. There is no explanation of the reason for the omission of the grip strength tables. The fifth edition of the AMA Guide has relevant tables, namely, Table 16-32 ‘Average Strength of Grip by Age in 100 Subjects’; Table 16-33 ‘Average Strength of Lateral Pinch by Occupation in 100 Subjects’; and Table 16-34 ‘Upper Extremity Joint Impairment Due to Loss of Grip or Pinch Strength’. Table 16-34 was relied on by Dr Griffith when he made an assessment of Mr Slattery’s level of impairment. The sixth edition, on examination, is a more complex document than the fifth edition and requires the use of assessment processes which are far from intuitive. This may have contributed to a preference among medical assessors to continue to use the fifth edition.
44. The Guide to be used is that ‘current at the time of assessment’.[23] If the fifth edition is continuing to be used as being easier to apply or more comprehensive, for example, its widespread use gives it a currency that brings it within the instructions provided by the Comcare Guide. That is, ‘current edition’ in the Approved Guide is interpreted as current usage rather than the edition currently in force. In this context the Tribunal notes that the Approved Guide is not legislation, has not been drafted by parliamentary drafters, and although its use is authorised by the Act, it does not have that status which parliamentary scrutiny and attention to the text provides.
45. The Approved Guide itself envisages that where it does not measure impairment, the AMA Guide may be relied on to fill any gaps. This both acknowledges that the Approved Guide is selective and indicates an intention that assessment should not be stymied for lack of an appropriate guide. The concession accords with the legal principle that the Guide should be construed and applied in line with its general statutory purpose, which is to provide an assessment of the level of compensation to persons injured at work, not to limit that purpose. In Mr Slattery's case, such an approach also avoids a meaning that appears 'irrational and unjust'.
46. It follows that, wherever possible, an available guide should be used to provide an assessment that meets the statutory purpose. The Tribunal would be loath to endorse the opinion expressed in Re Coulter and Comcare[24] that:

[e]ven though an employee suffers an injury which results in a permanent impairment, unless the impairment can be assessed under one of the guides there can be no degree of impairment assigned to it.[25]

47. Nor does the Tribunal accept the reasoning in Re Coulter that ‘[t]here is no difference between an impairment which is referred to and given a zero rating and one which is not referred to at all.’[26] An assessment which results in a zero rating under an existing and appropriate table in the Guide is envisaged by the Guide, even though the result may be considered ‘unfair’. By contrast, where there is a gap, that is, the impairment is ‘not referred to at all’, the Approved Guide envisages use of the AMA Guide to fill those gaps.
48. In support of this argument, underpinning the Approved Guide is a principle that if a person has been assessed under an earlier version of the Guide, and a reassessment under a later edition of the Guide would reduce the degree or impairment or the degree of non-economic loss, the earlier Guide may be used. In other words, use of a later revised Approved Guide should not disadvantage an applicant. This is apparent from the introduction to the Approved Guide which states that ‘in determining whether or not there has been any subsequent increase in the degree of permanent impairment, the degree of permanent impairment or degree of non-economic loss shall not be less than the degree of permanent impairment or degree of non-economic loss determined’[27] under an earlier Guide.
49. On balance, the Tribunal's view is that the purpose of the compensation scheme is to provide compensation for conditions which fall within the Act and that purpose should not be frustrated by any gaps in the impairment table when alternatives are available, as here, namely, through the use of the fifth edition of the AMA Guide. The Tribunal directs that the matter be remitted to Comcare for reassessment using the fifth edition of the AMA Guide.
    

I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member; Dr M Miller, Member; and Mr M Hyman, Member.

Signed: .......................................[sgd].....................................

C. Kocak, Associate

Date/s of Hearing 2 December 2009

Date of Decision 28 January 2010

Counsel for the Applicant David Richards

Solicitor for the Applicant Slater & Gordon

Counsel for the Respondent Phillip Walker

Solicitor for the Respondent Dibbs Barker

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[1] Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’) s 34E(3)(b).
[2] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 28(4).
[3] Comcare, Guide to the Assessment of the Degree of Permanent Impairment (2nd ed.) (2005), 86 (‘Comcare Approved Guide’).
[4] Ibid.
[5] Ibid, 14.
[6] Ibid.
[7] Ibid.
[8] Re Pavic and Comcare (1996) 45 ALD 409.
[9] Ibid, 415.
[10] Ibid.
[11] Whittaker v Comcare (1998) 86 FCR 532.
[12] Re Peters and Australian Postal Corporation [1994] AAT No 9680 (Unreported, Senior Member Barnett, Dr Staer and Member Lloyd, 23 August 1994), para 22.
[13] Re Edwards and Comcare (2001) 64 ALD 495.
[14] Comcare v Ticsay (1992) 38 FCR 181.
[15] Ibid, 188.
[16] Ibid..
[17] Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336.
[18] Ibid, 350.
[19] Comcare Approved Guide, above n 3, 95.
[20] Comcare v Ticsay [1992] FCA 468; (1992) 38 FCR 181 at 188 per Olney J; Whittaker v Comcare [1998] FCA 1099; (1998) 86 FCR 532 at 545 per Drummond, Cooper and Finkelstein JJ.
[21] Canute v Comcare (2006) 226 CLR 535.
[22] Advice from the Administrative Appeals Tribunal Library, 18 December 2009.
[23] See above n 6.
[24] Coulter and Comcare (2005) ALD 315.
[25] Ibid, 323 (per Senior Member Constance).
[26] Ibid.
[27] Approved Guide, iv.