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5.3.4 Musculo-Skeletal Disorders - Table 9
The main injury type DVA pays PI compensation for are musculo-skeletal type injuries. It is considered that the most appropriate type of medical examiner for PI purposes would be an occupational physician. These doctors are skilled in assessing the effect of a condition using specific tests for both functional and range of movement criteria.
However, the type of examiner will vary dependent upon the specific condition being assessed and the necessary testing needed to measure the level of impairment against the PI guide criteria.
Another factor is how much objective testing is required to address the criteria under Tables 9.4 and 9.5. These are for upper and lower limbs and require impact on functioning measurements. Medical assessors should provide demonstrable objective evidence of levels of impairment rather than relying on self-reported history alone.
Claimants will be tested on an individual basis. Such things as age and functional levels before injury, extent of injury etc. will generally be factors e.g. the impairment may be measured against what would be expected of someone of a similar age. It would therefore be inappropriate to specify how the tests would be applied and interpreted to every claim e.g. a minimum number of steps or a specific distance under Table 9.5 for a 20% impairment. See the Pain versus Difficulty sections below for more information.
Fellowes– multiple impairments under the same table
The High Court decision in Fellowes is especially relevant to the musculo-skeletal tables. The decision allows for separate assessments where distinct impairments to separate body parts arise from distinct injuries and are assessable under the same Table in the Guide. This contradicts the 'Combined Impairments' paragraph in the Principles of Assessment in the Approved Guide.
This does not mean that all impairments will result in their own WPI ratings. For example, a person may have three conditions affecting the same knee, all of which on their own and in combination, result in the person having difficulty with grades, steps and distances. In this case, careful consideration would need to be given on the basis of the medical evidence, as to whether each condition is a distinct and separate injury/disease (as defined in the SRCA) or whether they are a natural progression/worsening or a symptom of the original injury. If the medical evidence shows that the conditions are separate and distinct injuries such that they each satisfy the requirements in S5A of the SRCA, then an impairment rating must be ascribed to each injury. In doing this, the impairment from each injury must be assessed against the functional capacities of a hypothetical normal healthy person, rather than the actual capacity of that person i.e. any pre-existing impairment or impairment from other separate and distinct injuries must be disregarded.
Clear instructions to medical assessors are essential and each case will need to be determined on its associated evidence. Where the Specialist has come to more than one rating under the same table, clarification should be sought on which impairments are attributed to which condition and how this was determined.
In cases where a number of injuries affect the same knee and one of these is non-service related or previously compensated, then the principles in Jordan v Australian Postal Corporation  FCA 2028 (Jordan) would be applied. In Jordan, the Federal Court held that where possible, it is necessary to isolate the effects of the compensable injury from the effects of the underlying condition or the non-service related injury before an impairment rating is assigned i.e. so only the effects of the compensable injury are compensated. Where this is not possible, the impairment rating should be based on the full effects on the person.
The Fellowes decision also made it clear that the impairment arising from each injury must be assessed separately and in isolation, even when using a table that assesses impairment on a functional basis. Consequently, the principle of isolation means that a separate assessment must be conducted for each injury, rather than assessing the injuries together.
The relevant Tables in Table 9 are:
- Table 9.1 – Upper extremity
- Table 9.2 – Lower extremity
- Table 9.3 – Amputations and total loss of function
- Table 9.4 – Limb function – upper limb
- Table 9.5 – Limb function – lower limb
- Table 9.6 – Spine
Choice of table within the musculo-skeletal system tables
As a consequence of the Full Court decision in Whittaker v Comcare (1998), assessment under the musculo-skeletal system Tables of the Guide, of impairments involving joints, should involve an assessment under both Tables 9.2 and 9.5 (or where the upper limb is involved Tables 9.1 and 9.4) and that assessment which yields the most favourable result to the employee must be applied.
Amputations and total loss of function
Despite the statement at the start of Table 9.3, an impairment rating can NOT be given under Table 9.3 for stiffness or partial loss of movement of the toes. As the Tribunal and Federal Court have noted, no meaning can be given to this statement because it would make a nonsense of most of what precedes it in the Table: Re Nguyen and Comcare (1995), endorsed by the Olney J in Comcare v Ticsay (1992) and by the Full Federal Court in Whittaker v Comcare (1998).
Table 9.4 – Limb function – upper limb
A separate rating under Table 9.4 is made for each arm.
Difficulty with digital dexterity
When making an assessment under Table 9.4, it is important to make an objective assessment, as opposed to a subjective assessment, of the degree of impairment. The following points should be noted:
- Difficulty – an objective test
Difficulty with digital dexterity must be genuine, demonstrated and obvious to an observer, it is not sufficient for the claimant to state he/she believes they experience more difficulty with digital dexterity than before the injury.
- Pain versus difficulty
Table 9.4 is expressed, in part, in terms of difficulty with digital dexterity. Pain and difficulty are not synonymous. Pain is not relevant to impairment for the purposes of assessment under the table and is catered for in the non-economic loss component. Pain on performance of activities such as grasping and holding is not an impairment nor is voluntary restriction of the use of a limb in order to avoid pain at the time or later an impairment.
However, if difficulty with digital dexterity occurs because of the actual, observable onset of pain, difficulty may exist for the purposes of Table 9.4. Note that it is not permissible to accept difficulty with digital dexterity where there is a voluntary abstention from physical activity to prevent the onset of pain, or voluntary abstention from physical activity to alleviate pain.
Note that difficulty with digital dexterity may occur because of problems in the wrist, elbow, upper arm or shoulder, it is not confined to cases where the injury or impairment is located in the hand or fingers. What is necessary is to look to the ease of use of the fingers and hand without undue restriction.
- The degree of 'difficulty' required
The Full Federal Court in Comcare v Fiedler (2001) discussed the degree of 'difficulty with digital dexterity' which gives rise to a permanent impairment entitlement under Table 9.4:
Something more than minimal problems with digital dexterity is required. But if a person, as a result of his injury, finds it troublesome or not easy to do tasks requiring digital dexterity, that will ... justify a 10% impairment assessment under paragraph 1 of Table 9.4 (at 23).
Table 9.5 – Limb function – lower limb
A separate rating under Table 9.5 is made for each limb.
When seeking assessment under Table 9.5 all medical practitioners must be reminded of the importance of an objective assessment, as opposed to a subjective assessment of the degree of impairment and of the following points:
- Difficulty – an objective test
Difficulty must be genuine, demonstrated and obvious to an observer, it is not sufficient for the claimant to state he/she believes they experience more difficulty with grades, steps and distances than before the injury.
- Pain versus difficulty
Table 9.5 is expressed in terms of difficulty. Pain and difficulty are not synonymous. Pain is not relevant to impairment for the purposes of assessment under the table and is catered for in the non-economic loss component. Pain on performance of activities such as climbing steps or grades is not an impairment nor is voluntary restriction of the use of a limb in order to avoid pain at the time or later an impairment. An inability to undertake an objective test by the claimant due to pain at the time or later is not to be assessed as an impairment of the limb (Comcare v Aborebieta FC961312, 3 May 1996).
To ensure consistency and to confirm that an objective assessment has been made medical practitioners MUST qualify their assessment under Table 9.5 by providing written advice of the nature of the objective test/s used e.g. observed difficulty with stairs or difficulty assessed by occupational therapist.
Particular care must be taken by medical practitioners using the Combined Permanent Impairment and Non Economic Loss Questionnaire. They should be requested to indicate in the 'comments' field the objective signs which led to their assessment.
Note that, if difficulty with walking or climbing occurs because of the actual, observable onset of pain, difficulty may exist for the purposes of Table 9.5. However, it is not permissible to accept difficulty or restriction where there is a voluntary abstention from physical activity to prevent the onset of pain, or voluntary abstention from physical activity to alleviate pain.
Lyons and MRCC – referred pain
In Lyons and MRCC (2006) AATA 157, the Tribunal found that referred pain in the lower limbs from a back injury can be assessed as an impairment under Table 9.5, rejecting the assertion that pain causing impairment to the legs must be a neurological consequence of the back injury. This argument was affirmed in Quirk and MRCC (2009) AATA 899.
Use of the AMA Guides
A common use of the American Medical Association's Guides (AMA Guides) is for finger or toe assessments in place of Tables 9.3, 9.4, and 9.5. Part 2 of the Approved Guide is lacking where there is no amputation (Table 9.3), loss of digital dexterity (Table 9.4) or effect on walking/standing (Table 9.5), however there is a permanent impairment (generally due to a loss of range of motion). When this is likely the case, delegates can request that the finger/s or toe/s be assessed under both the Approved Guide and the AMA Guides, and compensate the higher WPI amount.