4.2.5.1 Bilateral conditions

The effect of Canute, Fellowes and Robson means that there should be a separate assessment of PI resulting from each separate injury suffered by a person, even when the two injuries result in the same functional loss. This includes injuries which arise from, occur subsequent to, or are caused by an initial injury or associated treatment.

Of course, where two injuries result in separate impairments to separate body parts they must be assessed separately, even if they are assessable under the same Table in the Guide.

Delegates need to be careful in making the distinction between injury and impairment, as multiple injuries, even if they arise from the same event, are not combined.

An injury is defined under the DRCA as:

(a)    A disease; or

(b)    An injury (other than a disease) that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

(c)     An aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment.

Impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.

Section 24 of the DRCA states that where an injury results in a permanent impairment, there is liability to pay compensation in respect of that injury. Generally speaking, it will be obvious to the delegate when a veteran has suffered separate and distinct injuries for the purposes of assessing permanent impairment. In the case of assessing bilateral conditions, this may not be immediately apparent and the delegate will need to decide, based on the evidence, whether the bilateral condition in fact arose from more than one injury, or, simply from one injury affecting two body parts.

In making this distinction, the delegate should have regard to, but is not limited to, the existing evidence utilised during the initial liability process. This might include analysing the veteran’s original contention as to the cause of the bilateral condition, the identified date of injury or injuries and the precipitating event or events that eventually led to the veteran contracting the condition. This also helps to ensure that the delegate has regard to the effects of the Canute case law. If the delegate decides based on the evidence that the bilateral condition has arisen as a result of one injury, then only one assessment for the purposes of calculating PI should be conducted.

Medically speaking, the conditions of compartment syndrome and shin splints, generally present bilaterally, having arisen from one injury or one causal event, i.e. pack marching, combat training, wearing of Army issued boots, etc. Therefore, for PI purposes, these conditions would generally be classified as a single injury with a single impairment outcome. When assessing these conditions, the doctor should be asked to provide one lower limb rating.

If the delegate however decides it is clear the bilateral condition arose from two distinct injuries, the doctor should be asked that each injury be assessed in isolation (i.e. the left and right lower limb). This is to ensure the delegate has regard to the effects of the Fellowes case law.

An example where we would almost always assess separately, is in the case of osteoarthritis, where osteoarthritis arose from two very distinct and separate injuries of the right and left lower limb. Unless there is definitive medical evidence to the contrary, separate assessment in osteoarthritis claims would be appropriate, and the assessing doctor should be asked to a rating for each lower limb.

It is important to note that in most ‘bilateral’ cases, the delegate will be able to decide from the available evidence whether there has been one injury to be assessed for PI purposes, or two. The client or assessing doctor may provide a separate PI rating for both lower limbs, but this should not be automatically presumed by the delegate as evidence of separate injuries. The delegate needs to instead consider all of the evidence on file and remember the distinction between an injury and impairment, as well as the injury based assessment approach re-confirmed by Canute and Fellowes case law, noted above.

Combining Impairments

The only scenario where impairments would be combined using the combined values chart by default is where a single injury resulting in multiple impairments. E.g. a single spinal cord injury results in the loss of function of the lower extremities, loss of urinary and reproductive functions.

The combining of impairment ratings is also appropriate when considering systemic conditions such as peripheral neuropathy or rheumatoid arthritis.

Whether or not a single, or separate assessment is appropriate, or whether impairments need to be combined, will always depend on the available medical information at the time of determining the claim.