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5.3.4 Musculo-Skeletal Disorders - Table 9
One of the most common payments of Permanent Impairment compensation is for musculo-skeletal type injuries.
Medical evidence and assessment of injuries
It is considered that the most appropriate type of medical examiner for PI purposes would be the client’s treating medical practitioner (e.g. a GP or specialist depending on the client’s circumstances and injuries). Where there is no other option it would be suitable for an occupational physician to undertake an assessment, as 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. Policy does not strictly require objective testing for these tables in every case. Rather delegates are able to rely on the opinion of a suitably qualified medical professional where, in their opinion, some other behaviour or symptomology they have witnessed is consistent with the known injury or disease and would lead to the client meeting that benchmark.
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.
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. The Full Federal Court decision in Robson reinforced DRCA’s injury-based approach, whereby separate injuries and their associated impairments should be assessed in isolation of others, even if they relate to the same body part, system or function, or there is a causal relationship between the two injuries. Consequently, the principle of isolation means that a separate assessment must be conducted for each injury, rather than assessing the injuries together.
Flowing from the High Court decision of Fellowes and Robson, it is possible to compensate a person for two ratings under the musculo-skeletal tables with respect to separate injuries. For example a client may be able to receive a rating under Table 9.2 for a left knee condition, and a separate rating for a right knee condition under the same table. In these cases, delegates would need to be satisfied that:
- both accepted conditions met the DRCA definitions of injury, permanent and impairment; and
- the effects of the conditions can be isolated from one another i.e. the person is not being compensated twice for the effects of one impairment.
Delegates should refer to the medical evidence provided in order to determine if the effects of the conditions can be isolated from one another so they can be assessed separately under the tables in Chapter 9.
Clear instructions to medical assessors are essential and each case will need to be determined on its associated evidence. In order to assess each injury in isolation, the doctor must assess the impairment suffered by the person due to their injury against the functional capacities of a hypothetical normal healthy person, rather than the actual capacity of the person just prior to the injury in question. Therefore it should be put to the doctor to answer which impairments are attributed to which condition, whether they can be isolated and how this was established.
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 DRCA) 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 section 5A of the DRCA, 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.
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.
Choice of table within the musculo-skeletal system tables
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
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.
Table 9.1 and 9.2 - Upper and Lower extremity - range of joint movement
Both Table 9.1 and 9.2 assess the impairments to range of motion in the relevant joint. Medical opinion on the range of movement loss may be based on an examination of the client, medical history, and/or diagnostic imaging, but not solely on x-rays of the joint(s).
It is important to note under the PI Guide tables there is no ‘normal’ values for the doctor to compare against, therefore a doctor should comment on the loss of function for the affected joint in comparison to the claimant’s otherwise healthy upper or lower joint(s) or against their subjective opinion of normal for the claimant. A delegate would need to be reasonably satisfied the report supports the rating that is allocated under the PI Guide tables.
It is not necessary for the purpose of an assessment of the range of movement losses under the PI Guide tables to ask doctors to measure and provide the specific ranges of movement for each joint. It is satisfactory for the doctor to allocate the relevant loss under Table 9.1 or 9.2; for example ‘loss of half’ or ‘loss of more than half’ to determine the WPI rating for the assessment of compensation.
Range of Movement Values, Calculators and CMA opinions
The PI Guide is not instructive on, nor provides a defined set of normal values to assess a range of movement loss for the upper and lower joints. The investigation of range of movement loss should not involve requesting specific values (e.g. degrees of flexion, extension, abduction, adduction etc.) as there is no process of determining those in terms of a WPI rating under the PI Guide tables. Furthermore, delegate should not be utilising any calculators that convert recorded measurements to WPI ratings for an assessment using the PI Guide.
It is best practice and also reduces the complexity of these cases to seek medical opinion from the claimant’s assessing doctor (either GP or specialist) to allocate the most applicable rating of WPI under the PI Guide tables. As a second option, delegates may seek CMA opinion for a subjective assessment and to assign a WPI rating of the loss of range of movement. A delegate should not rely solely on a CMA opinion where there has been a reduction in the rating allocated under the Tables of the PI Guide. For example if there is conflicting medical evidence and a CMA opinion that the range of movement loss is less than reported by a doctor, there should be further medical evidence obtained to justify a delegate’s decision making about the applicable WPI rating for the assessment of compensation.
There may be exceptional circumstances for example during a MRCA PI investigation where specific range of movement measurements have been obtained, or a loss of range of movement percentage determined under the GARP M. In these instances it would be reasonable to utilise that information for the purpose of the DRCA PI assessment. However in the instance a CMA opinion or the use MRCA values result in a finding of a loss that results in a reject of the claim, further investigations should be undertaken.
For example, if a MRCA assessment included a DRCA knee condition that was assessed at 49% loss, it would result in a rating of 5% WPI for a loss of less than half under the PI Guide (Table 9.2). Here the claimant’s knee condition may actually result in an impairment of more than half loss range of movement because there is no ‘normal’ value under DRCA that was used in the MRCA assessment and would also result in an unfavourable outcome of the PI assessment. Therefore a delegate should seek further medical advice to confirm if there is a loss of more than half that would satisfy a WPI rating of 10% to receive compensation.
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
- Difficulty – an objective test
Difficulty with digital dexterity must be genuine 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.
Difficulty must be genuine 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 a test due to pain is not to be assessed as an impairment of the limb 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 assessment has been made medical practitioners MUST qualify their assessment under Table 9.5 by providing written advice of the nature of the evidence 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.
Spine Conditions and Impairment of Lower Limbs
In the assessment of spinal conditions using Chapter 9 Muscol-skeletal system, Table 9.6 Spinal conditions, states;
“Lesions of the sacrum and coccyx should be assessed by using the table which most appropriately reflects the functional impairments. This will usually be table 9.5. Lesions of the spine are often accompanied by neurological consequences. These should be assessed using Table 9.4 or 9.5 and the results combined using the combined values table.”
While the PI Guide is clear that spinal conditions that do have neurological consequences should be assessed for lower limb impairment, there is no guidance around the circumstances where lower limb impairment exists without neurological consequences.
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.
The lumbar spine and associated musculature are fundamental structures for mobility, stabilising the walking apparatus and allowing for upright posture; both requirements for efficient lower limb function. Medical evidence supports the understanding that lumbar spine disease, including degenerative joint diseases such as Lumbar Spondylosis, impacts lower limb function.
It is important to recognise some conditions will affect more than one body part/systems and may require consideration/assessment under more than one table and/or chapter. Functional outcomes such as difficulty with grades and steps, distances, being limited to level surfaces and difficulties with walking, can all be direct outcomes of lumbar spine disease, and are only adequately addressed by Table 9.5 in the PI Guide. For example, where there is difficulty with grades, steps and distances due to a diagnosis of Lumbar Spondylosis, it may be appropriate to assess this under table 9.5.
Delegates should be particularly mindful of applying this when the effect of a spinal condition on limb function is supported with appropriate medical evidence from the clients treating or assessing medical practitioner.
Medical opinion on the functional loss may be based on an examination of the client, medical history, and/or diagnostic imaging. The delegate would need to be satisfied that the medical report provided supports the rating allocated under any of the PI Guide tables. Further evidence can be sought from the assessing medical practitioner or DVA Contracted Medical Adviser (CMA) if this is unclear.
Therefore, if there is medical evidence to support that there is an impairment covered by one of the limb tables as a result of a spine condition, then an impairment rating can be assigned and the veteran compensated accordingly by combining the impairment ratings.
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.