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5.3.13 Miscellaneous - Table 13

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The relevant tables in Table 13 are:

  • Table 13.1 – Intermittent Conditions
  • Table 13.2 – Malignancies
Table 13.1 - Intermittent conditions:
All attacks to be considered in assessment of severity

The Full Federal Court in McKenna v Repatriation Commission (1995) examined the table covering intermittent conditions in the Guide to the Assessment of Rates of Veterans' Pensions (GARP) published by the Department of Veterans Affairs. The GARP Table is dissimilar to the equivalent table under the 1988 Act because the GARP Table requires a three stage assessment involving, sequentially, severity, duration and frequency, while Table 13.1 in the Approved Guide combines all three elements into the one table. This is not to say, however, that the effects of all elements on the intermittent condition must be assessed in combination; instead, it is still possible for one element alone to be responsible for a level of impairment assigned under Table 13.1. Nevertheless it can be discerned from the Federal Court decision that all attacks must be considered in making the assessment of frequency, not just those that meet the relevant degree of severity.

'Activities of Daily Living'

The Glossary in the Approved Guide defines 'Activities of Daily Living' (ADLs) in the following terms:

Activities of daily living are activities which an individual needs to perform to function in a non-specific environment i.e. to live. The measure of activities of daily living is a measure of primary biological and psychosocial function. They are:

  • Ability to receive and respond to incoming stimuli.
  • Standing.
  • Moving.
  • Feeding (includes eating but not the preparation of food).
  • Control of bladder and bowel.
  • Self care (bathing, dressing etc.).
  • Sexual function.

 

The Federal Court (FC) in Bryant v Military Rehabilitation and Compensation Commission (2008) FCA 1424 has clarified the manner in which the above definition is to be approached when assessing the level of interference by an intermittent condition on ADLs as required by Table 13.1. In particular, Logan J counselled against a narrow interpretation and application of an earlier Administrative Appeals Tribunal (AAT) decision, Re O'Rourke and Comcare (1997) (AAT 12152, 26/8/97), where a 'global approach' was taken to the assessment.

'58 Though the term [activities of daily living] is a collective, one does not, with respect, follow that the ”global approach” is thereby mandated. Indeed, in its reference to one ADL being so affected as to fall to be described as 'minor interference' the Tribunal itself in O'Rourke seems to counsel against the adoption of such an approach in such a case. Be that as it may, the correct way to approach assessment in respect of those parts of the Approved Guide which make reference to the collective term ”activities of daily living” is that stated by Spender J in Comcare v Emery 1993 32 ALD 147 at 151.'

 

In the Emery case, Spender J concurred with the AAT's observation that certain conclusions could be reached in relation to the use of ADLs in various tables of the Approved Guide. For instance, where 'some supervision in direction in ADL' was needed “there is no requirement that all, or most, or any one of the particular functions listed in the glossary definition have been adversely affected”. Another conclusion was that “the term ADL is not limited to the basic mechanics of an activity but due weight must be given to the psychosocial aspect of the function”. Using the second listed ADL – 'standing' – as an example, Spender J noted that “the ability to stand may be impaired because one cannot stand straight, or stand still or stand around on even standby without some supervision of direction”.

 

Logan J, in Bryant, acknowledged that these observations related specifically to the collective term 'activities of daily living' in Table 5.1, but stressed that the same principles applied similarly to the construction of the same collective term [ADLs] in Table 13.1, and indeed any other table of the Approved Guide.

'59 ...Thus there is no requirement that there be “minor interference” with all, or most or any particular one of the activities listed in the definition of that collective term [i.e., ADLs] before a finding of “minor interference” may be made. To the extent that the “global approach” counselled in O'Rourke suggests otherwise, and that seems to be how the Tribunal in the present case understood it, it is inconsistent with the decision of this Court in Emery and should not be followed by the Tribunal.'

 

The Bryant decision also claims consistency with FFC decision in Whittaker v Comcare 1998 86 FCR 532, stating that “if competing constructions of Table 13.1 are open, that which favours the employee is the one to be preferred” . Whether there is an interference with ADLs, and the extent of that interference, is a matter of fact and judgment in the individual case.

References
  • Bryant v Military Rehabilitation and Compensation Commission (2008) FCA 1424 :  Activities of daily living; Table 13.1;  no mandate for global approach 
  • Canute v Comcare (2006) HCA47 : discrete injuries to be assessed separately
  • Comcare v Amorebieta (1996) 66 FCR 83; 22 AAR 539 :
  • Comcare v Emery (1993) 32 ALD 147 : Activities of daily living : Table 5.1
  • Comcare v Fiedler [2001] FCA 1810, 18/12/01 : 'difficulty with digital dexterity', Table 9.4
  • Comcare v Ticsay (1992) 38 FCR 181; 28 ALD 311; 16 AAR 241 : Table 9.3
  • Dwight and Comcare (2006) AATA 730 : confined environment, Table
  • Fellowes v Military Rehabilitation and Compensation Commission (2009) HCA 39 : separate injuries resulting in separate impairments are assessed separately, even when under the same table in the Approved Guide
  • Jordan v Australian Postal Corporation (2007) FCA 2028 : isolate effects of underlying condition
  • JPA 2001/11 - Amendment to the Safety, Rehabilitation and Compensation Act 1988 Compensation payable for hearing loss under section 24
  • JPA 2010/02 – High Court decisions in Fellowes v MRCC – implications for determining permanent impairment
  • Lyons and MRCC (2006) AATA 157 : referred pain resulting in functional loss can constitute an impairment
  • McKenna v Repatriation Commission (1995) 39 ALD 254 : Intermittent conditions
  • Quirk and MRCC (2009) AATA 899 : referred pain resulting in functional loss can constitute an impairment
  • Re Nguyen and Comcare (AAT 10133, 18/4/95) : Table 9.3
  • Re O'Rourke and Comcare (1997) (AAT 12152, 26/8/97) : Activities of daily living (ADLs) - ' global approach – see also Bryant above 
  • Re Toohey and Australian Postal Corporation (AAT 13360, 9/10/98) : Table 9.4 – Difficulty with digital dexterity
  • Robson v MRCC [2013] FCAFC 101: separate injuries and their associated permanent impairments must be assessed separately and in isolation, even if they relate to the same body part, system or function
  • Whittaker v Comcare (1998) 28 AAR 55 (FFC 98/1099, 7/9/98) : Most favourable table construction to apply - Table 9.3

 

Table 13.2 - Malignancies

Malignancy is the tendency of a medical condition to become progressively worse.

Malignancy is most familiar as a characterization of cancer. A malignant tumour contrasts with a non-cancerous benign tumour in that a malignancy is not self-limited in its growth, is capable of invading into adjacent tissues, and may be capable of spreading to distant tissues. A benign tumour has none of those properties.

All malignant cancer conditions are to be assessed under table 13.2 of the Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1 - Part 2 Defence Related Claims (permanent impairment guide).  This table provides an assessment on how the condition affects the client in relation to symptomology and activities of daily living etc. It does not take into account the functional impairment to individual body parts.  For example, if the condition being assessed is lung cancer then it would be appropriate that the condition also be assessed using table 2.1 for the respiratory system and the two impairment results combined using the combined values chart. 

Confusion often occurs when assessing a cancer condition that has metastasized to multiple sites in the body such as melanoma (skin) cancer which may metastasize to bone, brain, liver and/or lung.  In SRCA terms we commonly refer to these circumstances as ‘sequela’ or secondary conditions.

When applying the principles of the Canute decision we need to consider if a compensable injury gives rise to a secondary condition that satisfies the SRCA section 5A definition of ‘injury’ in its own right.  If it does, that secondary condition is to be treated as a separate ‘injury’, with all of the entitlements of a separate injury; this includes entitlement to a separate assessment for compensation under sections 24 and 27 of the SRCA.  However, delegates would need to be satisfied that these secondary conditions are in fact separate ‘injuries’ according to the medical evidence provided.

When considering a cancer condition that has metastasized into more than one site, we need to consider the very nature of metastatic cancer in the first place. 

Metastatic cancer is cancer that has spread from the place where it first started to another place in the body. A tumour formed by metastatic cancer cells is called a metastatic tumour or a metastasis. The process by which cancer cells spread to other parts of the body is also called metastasis.

Metastatic cancer has the same name and the same type of cancer cells as the original, or primary, cancer. For example, breast cancer that spreads to the lung and forms a metastatic tumor is metastatic breast cancer (in the lung), not lung cancer.

Therefore, when assessing a malignant cancer condition that has metastasized to more than one site, we would not apply Canute as we are assessing one original or primary ‘injury’ that has affected multiple sites, potentially resulting in additional impairment at the new site.  Based on the medical evidence provided, delegates would assess each impairment resulting from the one original ‘injury’ according to the relevant tables as well as table 13.2 and combine them using the combined values chart in the permanent impairment guide.

Delegates who are unsure about which impairment tables might apply in addition to 13.2 should check with their local Contracted Medical Advisor (CMA).  It is better to clarify this pre-emptively as opposed to seeking a supplementary report.

In the case where a malignant cancer condition is being assessed with multiple impairments (such as metastatic cancer), there would only be one NEL questionnaire for the one injury that addresses all impairments.  

It is important to note that whilst these conditions may result in a combined 80 or more WPI the Serious Injury Adjustment (SIA) payment would not apply.  For further information on SIA refer to Chapter 3.6 of the SRCA Permanent Impairment Handbook.

Case Scenario’s

Scenario 1

A client has an accepted skin cancer which has been accepted under the 1971 Act. Recently metastases to his lungs and parotid gland have been diagnosed. These have been accepted as sequela conditions.

Questions and Answers:
1. Is the metastases to the lungs and parotid gland sequela conditions or part of the original condition?

If the medical evidence establishes that the skin cancer has metastasised to the parotid gland and lung then these would not be considered sequela or secondary conditions.  In these circumstances, the client has not developed parotid gland and lung cancer as a result of the skin cancer, rather, the original or primary cancer (skin) has spread to the additional two sites of the lung and parotid gland.  Therefore they would be part of the original condition in multiple sites as opposed to a ‘sequela’ or ‘subsequent’ condition. 

2. Why does Canute not apply in these cases?

Where a compensable injury gives rise to a secondary condition that satisfies the definition of an injury in section 5A of the SRCA in its own right, that secondary condition is to be treated as a separate ‘injury’, with all the entitlements of a separate injury; this includes entitlement to a separate assessment for compensation under sections 24 and 27 of the SRCA. However, the delegate would need to be satisfied that these conditions are in fact separate ‘injuries’ according to the medical evidence provided.

If the secondary conditions give rise to a separate set of impairments which are additional to the impairment/s arising from the original condition, that is, if the effects of each condition can be isolated from one another, then we consider that the Canute decision would apply. The delegate needs to be satisfied that the person is not being compensated twice for the effects of one injury.

In this particular case the medical advice is that the skin cancer has metastasised to the parotic gland and the lung. It is therefore appropriate to assess this condition as one injury with multiple impairments (ie one condition that has spread to multiple sites) which are then combined using the combined values chart in the guide.

3. If part of the original claim would PI be considered permanent and stable at time of onset of metastases, thus bringing it under the 1988 Act or should it be assessed under the original condition and 1971 Act?

On the basis of the medical evidence and the CMA's advice that onset would be September 2010, these conditions would fall under the 1988 Act.  However, further medical evidence should be requested if the delegate is unsure of this. More detail about which Act impairment should be considered under is provided at Chapter 4.5.1 of the SRCA Permanent Impairment Handbook

4. If part of the original condition, are PI impairments to be combined?

Yes, if the medical evidence states that the lung and parotid gland cancers have metastasised from the skin, then all of the impairments resulting from the one condition in three different sites are combined for one WPI percentage rating.

Scenario 2

Client has an accepted claim for adenocarcinoma of the right lung with metastatic spread to spine. This client passed away recently prior to any PI payment being made.

PI assessments are as follows:

  • 85% WPI under table 13.2 for malignancies - intensive support and treatment needed for rapidly deteriorating condition

  • 50% WPI under table 9.5 for the left lower limb function and

  • 50% WPI under table 9.5 for the right lower limb function - based on functional information provided in the month prior to death (namely he was only able to mobilise for self-care needs) and severity of leg weakness affecting each leg due to progressive spinal cord compression from metastatic lung disease.

  • 20% WPI under table 9.6 for the spine - due to tumour metastasis, there is at least a loss of more than half the normal range of movement

How should I process this?

  1. Use the rating of 85% WPI for malignancies only; or
  2. Combine all impairments thereby resulting in combined WPI of 98% as both lower limbs and spine are impairments due to cancer; or
  3. Treat each condition separately in line with Canute, or
  4. Something other than this?

The medical evidence indicates that the various impairments result from the one ‘injury’ which affected multiple sits in the client’s body.  Given that there was no adequate test of respiratory function, it was correct to exclude this from the assessment, as the impairment needs to be capable of being assessed medically. Leaving aside the respiratory function, then, it would be appropriate to combine all of the other impairments of the adenocarcinoma of the right lung with metastatic spread to spine, resulting in the 98% WPI. The basis for this approach is that the malignancies table alone does not take into consideration the effects of the condition on individual body parts. We also consider this appropriate given the use of the malignancies table and the lower limb tables would not result in the duplication of any of the impairments.

Scenario 3

A Client (deceased) who had an accepted condition for lentigo maligna, malignant melanoma with cerebral, abdominal and pulmonary metastases. The doctor has assessed the client to have suffered a 50% WPI under table 4.1 and 85% WPI under table 13.2 prior to his death.

In this case, it is correct that the same principle applies: this is because the medical evidence indicates that the metastasised cancers are still part of the original cancer which is now affecting multiple sites. The ratings under Tables 4.1 and 13.2 relate to different impairments, so they can be combined. Put simply, the Table 13.2 rating reflects the general effects of a malignant cancer and the need for intensive support and/or treatment, while the 4.1 rating specifically relates to the effects of the skin disorder, including the requirement for treatment and the interference it causes with activities of daily living. The only caveat is that the delegate would need to be satisfied that the doctor's 50% rating under Table 4.1 was an accurate reflection of the effects of the skin condition as such and did not duplicate any of the impairment from the metastasised cancer that is captured by the 85% Table 13.2 rating.

Scenario 4

A veteran who has suffered from colorectal cancer, which has resulted in the removal of the bowel and now has a colostomy bag.

Under the Comcare Guide, the Veteran may have an impairment under Tables 8.1, 8.3 and 13.2.

If a veteran had a cancer condition we assess under the malignancy table.

Under Table 8.1 for an assessment of 10% or more the veteran would need to have objective signs of disease present etc.

Under Table 13.2 for an assessment of 15% or more the veteran would require some signs or symptoms of disease.

The veteran has had the bowel removed and is currently in a state of remission following surgery and chemotherapy and does not require any treatment at this time. The veteran has regular check-ups regarding his condition.

Questions:

  1. Do we assess:
    1. the condition only under Table 13.2, or
    2. the  condition under Tables 8.1 and 8.3 and combine the impairments and Table 13.2 and grant the higher assessment of the two, or
    3. or combine all three tables?
  2. Because the veteran has had the bowel removed and currently in a state of remission what constitutes:
    1. objective signs of disease present and/or
    2. some signs of symptoms of disease?

Answers:

The condition can be assessed under all three appropriate PIG Tables, and as all impairments relate to the one disease, the ratings are combined.

If there are functional impairments under more than one table, they should all be assessed unless it would result in double assessment. As the impairments listed in the three tables are quite distinct (and given the outcomes of the treatment so far), the crossover would be minimal. Granting the higher of two assessments is not something that is stated in the Guide (as it is for some GARP tables), therefore it is not done as part of these assessments.

Removal of the bowel and use of colostomy would constitute a sign of disease for Tables 8.1, 8.3 and 13.2. It constitutes a permanent effect on the functioning of a bodily system.

Scenario 5

Question:

The veteran has accepted compensation for colorectal adenocarcinoma and has undergone surgery to remove lymph nodes and chemotherapy. The veteran does not require assistance with Activities of Daily Living.

The prognosis is guarded and has an increased risk of recurrent metastatic disease, especially at risk over the next two to five years.

The questions is would this constitute some signs or symptoms of disease under Table 13.2.

Answer:

Increased risk of the recurrence of a disease does not constitute the presence of disease for the purposes of Table 13.2. However, if the disease ever manifested again and a permanent effect ensued, a permanent impairment claim could then be considered. This could be communicated to the person.