Assessment of spinal injuries and associated limb impairment
For claims under the 1971 and 1930 Act(s), a person will not receive compensation for a back injury because it is not a specified loss under the respective Act.
Medical evidence supports the understanding that lumbar spine disease, including degenerative joint diseases such as lumbar spondylosis, may also impact lower limb function. Similarly, medical evidence has supported that there can be direct functional outcomes and impacts on upper limb function from a cervical spine injury, including difficulty with grasping and holding and no digital dexterity.
On this basis, essentially, the courts have argued that it is important to recognise that some conditions will affect more than one body part or system and may require consideration and an assessment under more than one table and/or chapter. 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 PIG 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.
Whilst the case law specifically dealt with the DRCA, to align the DRCA’s predecessors, the same approach may be taken when determining compensation for injuries covered by the 1930 or 1971 Act. In effect, this means that where a person suffers an impairment to the lower or upper limbs because of their back/neck injury, they can be compensated for that impairment, where the loss or impairment is specified under either section 12 and Schedule 3 of the 1930 Act, or sections 39 to 42 of the 1971 Act. Noting that compensation would remain unpayable for any impairment to the back or neck as there is no specified loss/impairment listed in the Table of Maims under either of the 1930 or 1971 Acts with respect of back or neck injuries.
Delegates are reminded to be particularly mindful of applying this when the effect of a spinal condition on limb function is supported with appropriate medical evidence from the person’s treating or assessing medical practitioner. Therefore, if there is medical evidence to support that there is a loss, or loss of efficient use covered by one of the limb tables as a result of a spine condition, then an impairment rating can be assigned and the person compensated accordingly under either the 1930 or 1971 Act.
Example 1: Lumbar spine condition and lower limb impairment
If a person suffers from an impairment as a result of their lumbar spine disease which became permanent in 1976, the condition and its associated impairment is assessable under the 1971 Act. Where medical evidence provided supports that the person suffers from an impairment to their lower limb function as a direct consequence of the lumbar spine disease, and both the spine and lower limb impairment became permanent prior to the commencement of the DRCA, the impairment is assessable under the Table of Maims. Whilst the spine impairment is not a loss specified under section 39 of the Act and is therefore not compensable, the person may have suffered a loss of efficient use of the leg at or below/above the knee and therefore may be entitled to some lump sum compensation for that impairment.
Where a person is being compensated for an associated limb impairment as a result of an accepted back condition, and the evidence indicates that the entire leg is effected, the delegate should be using one ‘above the knee’ rating (up to 75%), and not both an above the knee and a below the knee rating. In other words compensation is only payable in respect of the ‘major loss’. This is further discussed in 8.1.3 of the DRCA PI Policy Manual.
Example 2: Cervical spine condition and upper limb impairment
Based on medical evidence and judicial consideration, the same rationale can been adopted for the assessment of cervical spine injuries and the associated impairment that impacts upper limb function.
If a person suffers from an impairment as a result of their cervical spine disease which became permanent in 1982, the condition and its associated impairment will be assessed under the 1971 Act for compensation. Where medical evidence supports that the person suffers from an impairment to their upper limb function as a direct consequence of the cervical spine disease, and both the neck and upper limb impairment became permanent prior to the commencement of the DRCA, the impairment is assessable under the Table of Maims. Whilst the cervical spine impairment is not a loss specified under section 39 of the Act and is therefore not compensable, the person may have suffered a loss of efficient use of the arm or the greater part of the arm (or another impairment listed under The Third Schedule (Table of Maims) and therefore may be entitled to some lump sum compensation for that impairment.
Where a person is being compensated for an associated upper limb impairment as a result of an accepted neck condition, and the evidence indicates that the entire upper limb is effected, the delegate should be using one ‘loss of arm at or above elbow’ rating (up to 80%), and not both an above elbow and below elbow rating. In other words compensation is only payable in respect of the ‘major loss’. This is further discussed in 8.1.3 of the DRCA PI Policy Manual.