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18.104.22.168 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.
In most 'bilateral' condition cases, separate assessments of the left and right limb can be undertaken. Generally, it would be correct to process this from this as a starting point.
Assessing doctors should be asked if the injury affecting each limb can be assessed in isolation. If the impairment (between left and right limb) can be distinguished, it is indicative that a separate assessment for each injury is appropriate.
An example where we would almost always assess separately, is in the case of osteoarthritis, which is broadly accepted as entailing a distinct injury to each joint/limb. Unless there is definitive medical evidence to the contrary, separate assessment in osteoarthritis claims would be appropriate.
If a doctor is unable to separate the impairment of a bilateral conditions, this is where a single, bilateral assessment could apply, but in most cases a doctor will be able to apportion adequately, if asked to do so.
Exceptions to the rule
In the case of 'bilateral' conditions, Canute, Fellowes and Robson mean that whilst each injury must be assessed in isolation, it does not require a separate assessment for all bilateral conditions where the condition can only be appropriately classified as a single, bilateral condition.
Medically speaking, the conditions of compartment syndrome and shin splints, generally present bilaterally. 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, however, the doctor proactively indicates that these can be assessed between each limb in isolation, then we could still assess as two injuries.
In these cases, delegates may be guided by existing evidence utilised during the initial liability process, including the client's contended injuries, as well as the linkage to service to consider how to proceed with the claims. Reference to previous PI determination may also prove helpful.
The only other 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 resulting 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.