5.3.9 Musculo-Skeletal Disorders - Table 9

Medical evidence and assessment of injuries

The Businessline ‘Medical Assessments – use of Treating Doctors’ (HP Content Number 17582966E) specifies the order of preference to source medical evidence. Decision makers should approach the claimant’s treating GP, then treating specialist and only utilise an independent medical examiner (IME) as a last resort. Before utilising an IME, decision makers should follow the approval guidelines outlined in the Businessline ‘Medical Examinations – Medicolegal Approval Process’ (HP Content Manager Number 20551666E). For more information regarding the gathering of medical evidence please visit the DVA PI SharePoint site.

Objective testing

Obtaining objective testing is always preferred when finding a rating under the Chapter 9 tables, however there is no strict requirement for objective testing in every case. In instances where the claimant is simply not able to be assessed in person due to (but not limited to) rural/isolated location, difficulties arising as a result of COVID-19 (quarantine, people movement limits), it may be appropriate for a phone or video consultation to be conducted. Additionally, the Australian Government has permanently introduced telehealth services to help reduce the risk of community transmission of COVID-19, so it would not be unusual to experience an increase in these types of assessments. Where objective testing is not able to be obtained, delegates should be guided by the relevant evidence on file as well as the opinion of the medical examiner, ensuring that the reported difficulties are in keeping with the known difficulties associated with the condition being assessed.

Fellowes and Robson – multiple impairments under the same table

The High Court decision in Fellowes 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.

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 9.5 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 injury can be isolated from one another i.e. the person is not being compensated twice for the effects of one impairment.

Conversely, it would not be appropriate to assess and compensate a person for a second distinct injury that causes impairment, if that impairment cannot be isolated from the impairment resulting from the first injury. There are carefully curated questions to ask of the medical practitioner to assist delegates with making these decisions. These questions can be found in 5.3.5 of the DRCA PI Manual, noting however they are not an exhaustive list and delegates may tailor questions to address the specifics of each individual case.

When assessing bilateral lower limb conditions please also remember to refer to the guidelines in 4.2.5.1 of the DRCA PI Manual.

Examples

A person may have three injuries 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 accepted 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 the conditions are separate and distinct injuries such that they each satisfy the requirements in section 5A of the DRCA, then an assessment of impairment may be conducted for each injury, and compensation may be payable where each injury individually and in isolation meets the prescribed thresholds. It is however important to consider the outcome of the Robson v Military Rehabilitation and Compensation Commission [2013] FCAFC 101 (Robson) case law. If the impairment associated with separate injuries simply cannot be isolated and separated due to the overlap in symptomatology or impairment, then it would not appropriate to provide compensation for these injuries separately. As noted above, the suggested questions in 5.3.5 of the DRCA PI Manual may be used to obtain a usual medical opinion in these cases.  

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 [2007] 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 musculoskeletal 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 musculoskeletal 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 (such as an MRI, CT scan or x-ray), but not based on imaging alone.

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.

Joint replacements – applicability of Table(s) 9.1 and 9.2

There has been conflicting evidence in the relevant case law (AAT and Federal Court) which has resulted in some confusion in the interpretation and application of the correct Chapter 9 PI Guide tables for certain PI cases. The Courts have, on occasion, taken the view that the Tables to be used should not be determined strictly according to the Guide. Where Tables overlap but are not mutually exclusive in their operation, the Courts has held that a decision maker should adopt a construction that favours the worker (Whittaker).

At the introduction of Table 9.2, the Guide provides:

“Where a joint has been surgically replaced assessment is in accordance with its function.”

While there may be some ambiguity in this statement, there is no restriction that would apply to the assessment of a joint that has been surgically replaced as long as the medical evidence supports the assessment. The case law is clear that when both tables apply then the greater of the two tables will apply.

Ultimately, the delegate must be satisfied with the evidence to make a decision on the degree on impairment, and as appropriate have medical evidence to justify the assessment.

Range of Movement Values, Calculators and MA-C 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.

Assessment of range of movement is best obtained from the veterans treating/assessing medical practitioner. This is based on the premise that the veterans treating medical practitioner would be best placed to have a history of the condition, treatment and resulting restrictions/impairments.  In circumstances where the delegate requires clarification or additional information, consultation with a MA-C can be helpful.  However delegates should not rely solely on a MA-C opinion as they have not had the opportunity to conduct a clinical assessment of the veteran and the effects of the accepted condition being assessed.  In cases where the advice of a MA-C indicates a different or less beneficial outcome to that of the assessing medical practitioner, further clarification from the assessing medical practitioner should be sought. This is to ensure the procedural fairness and natural justice guidelines are followed. For more information please visit Chapter 24 of the DRCA General Handbook ‘Dealing with Doctors and Medical Opinions’. Delegates should document the evidence they have considered and their reasons for applying a specific rating under the PI Guide.

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 MA-C 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. If evidence obtained during a MRCA assessment would result in an undesirable outcome for the veteran, the veteran should be afforded the opportunity to provide more supporting information or a choice to attend an appointment with their medical practitioner to gather further evidence. This is to ensure the procedural fairness and natural justice guidelines are followed. For more information please visit Chapter 24 of the DRCA General Handbook ‘Dealing with Doctors and Medical Opinions’.

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).

Pain vs difficulty when assessing impairment under Chapter 9

Impairment ratings under Chapter 9 tables must be 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, grasping or 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 difficulties occur because of the actual, observable onset of pain, a difficulty may exist for the purposes of the tables. In other words, 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. Delegates should be guided by the medical evidence in these cases.

In Comcare v Aborebieta FC961312, 3 May 1996, 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.

Table 9.4 and 9.5 – Limb Function

Difficulty

Difficulty must be genuine and obvious to an observer, or, where an assessment in person cannot be conducted, be in keeping with the known difficulties associated with the accepted condition. This is where the opinion of the qualified medical examiner is particularly important. It is not sufficient to base a WPI rating on a client’s statement that they believe they experience a difficulty. Rather, there needs to be medical opinion confirming the difficulties experienced by the claimant are what the experienced practitioner would usually expect for the type of condition being assessed.  

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).

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 MA-C 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 fingers or toes be assessed under both the Approved Guide and the AMA Guides, and compensate the higher WPI amount.

Further information can be located in 5.2.5 of the DRCA PI Manual ‘If None of Tables in the Guide Apply – AMA Guides’.