Application of the AMA Guides has rarely been considered by the Administrative Review Tribunal, previously the Administrative Appeals Tribunal, indicating that, in most assessment cases, it is possible to use the Approved Guide.
In Slattery and Comcare (2010), the Tribunal made several points regarding use of the AMA Guide:
34 The Approved Guide itself, in acknowledging in principle 12 that the AMA Guide is needed to fill gaps, infers that it is an imperfect tool and that in an appropriate case reference may be made to the AMA Guide. As a consequence, where no table in the Approved Guide enables an adequate assessment to be made, the medical assessor can have recourse to the AMA Guide.
36 However, if use of the relevant table simply results in the applicant not meeting the statutory threshold because the person's level of impairment is below 10 per cent, that is not a sufficient reason to use the AMA Guide. Nor is it sufficient, for recourse to the AMA Guide, that the Approved Guide is capable of providing an assessment but the assessment is inadequate or unfair. Drawing the line between deciding that there is no table which adequately assesses impairment and that the use of the Guide's tables produces an unfair or inadequate result, requires careful analysis of the major and minor criteria listed in the relevant table.
The AMA Guides were also applied by the Tribunal in Re Pavic and Comcare (1996) where the applicant had developed referred right testicular pain as a consequence of a back injury in compensable circumstances. The Approved Guide was found to be inapplicable to the case:
- Table 11.1, which deals with impairments of the male reproductive system, was inappropriate as the impairment was a referred pain which did not have an effect on his reproductive system.
- Table 9.5, which deals with impairment of the musculo-skeletal system, was inappropriate as its tests referred to standing and walking.
The Tribunal rejected a submission by the respondent that the applicant's pain and suffering was non-compensable because he did not fall into any particular nominated description of impairment in the Guide. The Tribunal commented:
36 In this matter the Respondent acknowledges that the Applicant experiences a degree of pain and suffering but submits that because he does not fall into any particular nominated description of impairment, then his pain and suffering are non compensable.
37 On the other hand two specialist medical practitioners, one of whom was consulted by the Respondent, considered that the Applicant was not able to be adequately assessed under the Guide. That Guide itself acknowledges that there will be such cases and provides a mechanism where by they can be assessed, namely, by using the AMA Guide.
38 Clearly the AMA Guide is not be resorted to as a matter of course and that much was acknowledged by the Tribunal in [Re Peters and Australian Postal Corporation, AAT 9680]. It is, however, somewhat ingenious for the Respondent to say that a discretion is there but is not to be used. Having regard to the principles re-stated by Olney J in Comcare v Ticsay [16 AAR 241], it is clear that the discretion is to be used in appropriate cases and this is one such case, as the Comcare Guide fails totally to provide a mechanism to assess the impairment incurred by the Applicant's referred spinal pain.
39 My understanding is that both parties agree that if impairment caused by testicular pain is to be assessed pursuant to the AMA Guide then, as a matter of logic, so should impairment occasioned by the Applicant's back injury. Whether there is agreement or not, I find that this is the only practical way to approach matters.
References
- AMA Guides to the Evaluation of Permanent Impairment , 5 — th edition (AMA 5)
- Comcare v Broadhurst [2011] FCAFC 39: use AMA 5 where the Comcare Approved Guide is inadequate
- Re Pavic and Comcare (AAT 11452, 6 December 1996) use AMA Guides where Approved Guide cannot assess the impairment
- Slattery and Comcare (2010) AATA 56 : must use Approved Guide where it is capable of providing an assessment