DEFENCE COMPENSATION ADVICE - NO 57
">Commonwealth Employees Rehabilitation And Compensation Act 1988
">PERMANENT IMPAIRMENT GUIDE
">1. The enclosed decision gives some guidance on the usage of the "Guide to the assessment of the degree of permanent impairment" (the Guide).
2. Mr Ticsay was involved in an accident on 15 January 1990 which resulted in the amputation of the distal interphalangeal joint of the middle finger and the tip of the index finger. Both fingers were surgically repaired but left Mr Ticsay with difficulty with digital dexterity. Mr Ticsay appealed against Comcare's decision not to award him a lump sum for permanent impairment.
3. The relevant tables in the Guide to assess the impairment are 9.3 (amputation) and 9.4 (upper limb function). Comcare had decided that as the injury was an amputation and that as Table 9.3 was intended to provide for amputations, that table was the more appropriate one to use and disregarded Table 9.4. As Mr Ticsay did not qualify for a payment under Table 9.3, his claim under section 24 was rejected.
4. Counsel for the applicant submitted that Mr Ticsay's difficulty with digital dexterity brought him within the provisions of Table 9.4 and that he was therefore entitled to compensation of 10% of the maximum rate.
5. The Administrative Appeals Tribunal noted that the Guide did not contain detailed instructions where one injury provides 2 separate functional impairments. However, the Tribunal found ample authority for the principle that "worker's compensation legislation is welfare legislation and, where two constructions are possible, is to be interpreted beneficially."
6. While this case deals with amputations of the fingers, it is considered that the same principle of assessment should apply to other disabilities eg knee injuries. The situation often arises where a doctor mentions that an injured employee has normal range of movement of the knee, but has difficulty with grades and steps. In this regard, the assessment made under Table 9.2 (lower extremity) would preclude a lump sum payment as the level of impairment is NIL. However, if the employee was assessed under Table 9.5 (lower limb function) he or she could be entitled to lump sum payment for 10% impairment.
7. When referring the matter to the doctor for examination, he or she should be asked to assess the impairment under Table 9.2 in the first instance. Should the doctor assess the impairment to be NIL because the employee has not suffered any loss of range of movement of the knee, then a further assessment under Table 9.5 should be considered.
8. In the calculation of any entitlement please ensure that only one Table is used and the assessments under the Tables are not combined.
9. Should you have any further queries concerning this matter, please contact Gabrielle McCann on 06-2668631.
PAUL ONTONG
A/Assistant Director
Reconsiderations & Appeals
30 June 1992