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[2001] VCAT 1957
plaintiff. The decision of the respondent made on 14 April 2000 is set aside and there is substituted therefor a decision that the applicant has a whole person impairment of 31%. The issue of costs is reserved.
VCAT reviewed a TAC decision assessing Ms Howard's whole person impairment at 24% after a 1996 taxi accident. After hearing competing medical evidence, the Tribunal preferred specialist orthopaedic and urological evidence, accepted a higher psychiatric assessment, and treated the applicant's need to wear a pad as 'intermittent treatment' for bladder dysfunction. Applying the Guides and combining impairments, the Tribunal set aside the TAC decision and substituted a 31% whole person impairment. Costs were reserved.
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On 31 October 1996 Ms Krystine Howard was a seat-belted passenger in a taxi that was involved in a transport accident. She sustained fractures of the pelvis (superior and inferior pubic rami, quadrilateral pubic rami), bruising and abrasions, and was hospitalised (initially at Royal Melbourne, then at Mount Gambier) [1]–[3]. She lodged a compensation claim on 17 January 1997 listing multiple injuries including pelvic fractures and contusions [4].
No linked legislation citations have been extracted yet.
The Transport Accident Commission (TAC) assessed her whole person impairment (WPI) at 24% on 14 April 2000. Ms Howard sought review in the Victorian Civil and Administrative Tribunal (VCAT). The VCAT hearing took place on 17–19 September 2001 before Senior Member Noreen Megay. Evidence included the applicant’s testimony, video recordings of activity, and reports and oral evidence from multiple medical experts: orthopaedic (Mr Dooley), general surgeon (Mr McArthur), neurologists and urologists (Mr Kennedy for the applicant, Mr Joyce for the TAC), treating general practitioners, and consultant psychiatrists (Dr Epstein and Dr Strauss) [7]–[9], [12]–[14].
The Tribunal preferred certain expert evidence and made findings on psychiatric, orthopaedic, neurological and urological impairment. Ultimately the Tribunal combined the impairments using the Guides to the Evaluation of Permanent Impairment (2nd ed) and found a WPI of 31%, setting aside the TAC decision of 24% and substituting the Tribunal’s decision [51].
The decision turned on evaluation and weighting of competing expert medical evidence under the Guides, and application of the Guides’ Tables and Classes.
Expert weight and speciality. The Tribunal emphasised the relevance of the expert’s specialty to the issue in question. On orthopaedic and spinal matters the Tribunal preferred Mr Dooley (orthopaedic surgeon) over Mr McArthur (general surgeon), because Mr Dooley’s specialty was directly aligned to the issues and his measurements and views were considered more reliable given the discrepancies in other practitioners’ findings [22], [26], [33]. The Tribunal noted specific reasons: Dooley’s orthopaedic expertise, the inconsistencies in McArthur’s multiple assessments on different dates, and supporting contemporaneous observations (for example Mr Rice noting full neck movement in October 1998) [22].
Psychiatric impairment. Two consultant psychiatrists provided assessments with similar figures. The Tribunal accepted the higher figure because Dr Epstein had seen the applicant on an additional occasion and his reports were more recent, thus making his assessment the more appropriate figure to adopt [12]–[14].
Causal attribution and radiology. For disc derangement the Tribunal examined radiological reports, prior imaging from 1992, CT scanning in 1997, and the mechanism of injury (significant pelvic impact). Mr Dooley’s view was that small bulges represented age-related degeneration not traumatic change, and the mechanism was inconsistent with traumatic lumbar disc injury. The Tribunal accepted that view and made no finding of traumatic disc derangement with residuals [25], [29]–[33].
Urological impairment and interpretation of ‘treatment’. The Tribunal accepted Mr Kennedy’s evidence that pelvic nerve injury could plausibly account for bladder dysfunction following a high-impact pelvic injury, and that the applicant had no significant pre-accident continence issues [42]–[43]. The central interpretative issue was whether the applicant’s current management (frequent voiding and constant wearing of a pad) constituted “intermittent treatment” under Class 1 of the Guides. The Tribunal adopted a liberal interpretation of “treatment”, holding that the necessity to wear a pad and void frequently was equivalent to intermittent treatment for the purposes of Class 1, and therefore that Class 1 assessment was appropriate; it then assessed urological impairment at 8% (within the Class 1 0–10% range) [45], [46]–[50].
Combining impairments. The Tribunal used the combined tables in the Guides to aggregate orthopaedic (13%), psychiatric (10%), urological (8%) and agreed neurological impairment (4%) to reach a combined WPI of 31% [51].
The Tribunal’s reasoning is focused on selecting and justifying the medical evidence it found most reliable, interpreting the Guides sensibly in the compensation context, and applying the combination methodology in the Guides transparently.
Before this decision: the Guides to the Evaluation of Permanent Impairment were the controlling framework for assessing percentage impairment in TAC matters, and panels of expert evidence frequently presented conflicting assessments. Interpretation of what counted as “treatment” for Class allocations under the Guides (for example Class 1 bladder dysfunction requiring intermittent treatment) could be contested.
After this decision: VCAT in Howard clarified two practical points in the application of the Guides within the TAC scheme:
These clarifications are particular to the statutory compensation and medical-assessment context and inform how tribunals may treat functional management measures when determining class and percentage for bladder dysfunction.
Quote: “I accept the higher of the two figures as being the most appropriate. Dr Epstein had the advantage of seeing the applicant on one more occasion than Dr Strauss and his examinations had the benefit of being more recent in time.” [13]
Translation: When two psychiatrists provide similar assessments, the Tribunal will adopt the more persuasive one if it is based on more recent and more numerous examinations.
Quote: “Overall I was more impressed by the assessment made by Mr Dooley.” [22]
Translation: The Tribunal preferred the orthopaedic surgeon’s evidence over the general surgeon’s evidence on spine and hip matters because of Mr Dooley’s specialist skill and the reliability of his findings.
Quote: “I accept his evidence in that regard. The applicant had no such problems prior to the accident and I reject Mr Joyce's suggestion that the symptoms were more likely caused by anxiety.” [43]
Translation: The Tribunal accepted the applicant’s urologist’s view that the bladder problems were likely related to the pelvic injury, not merely psychological causes.
Quote: “The applicant has symptoms and signs of a bladder disorder, none of which were present before the accident and those symptoms give rise to a need for the constant wearing of a sanitary pad. In my view she falls squarely within Class 1.” [48]
Translation: Because the applicant must constantly wear a pad due to bladder dysfunction that began after the accident, that practical management amounts to “intermittent treatment” under the Guides and fits Class 1.
Quote: “Using the combined tables (13 orthopaedic + 10 psychiatric + 8 urological + 4 neurological) I find the applicant has a whole person impairment of 31%.” [51]
Translation: Adding the assessed impairments using the Guides’ method results in a final whole person impairment of 31%, which becomes the Tribunal’s substituted decision.
Howard is most directly relevant where you have:
Practitioners should note Howard provides support for arguing that specialist evidence should be given greater weight where relevant, and that non-pharmacological but necessary management measures may satisfy Guide requirements about “intermittent treatment.”
This judgment does not itself record subsequent appellate treatment. Within the decision the Tribunal distinguishes a prior VCAT decision (Aquilina v TAC [2001] VCAT 1589) on the narrow factual point of whether intermittent treatment had been required; Howard distinguished Aquilina because the applicant in Howard took active precautions (pad wearing) which Aquilina did not [47]–[48]. The Tribunal thus engaged with contemporaneous VCAT reasoning and drew a fact-specific line. For broader statements about later citations or treatment by higher courts, external research beyond the text of this decision would be required. The judgment itself does not assert any higher-court precedent nor purport to bind courts beyond persuasive tribunal decisions [47]–[48].
The boundary of “intermittent treatment.” Howard adopts a liberal approach by treating constant pad-wearing as equivalent to intermittent treatment for Class 1 bladder impairment [48]. The precise limits of that approach are open: would occasional pad use or less regular precautions suffice? If a claimant could achieve similar benefit from readily tolerable medication, does that undercut a Class 1 finding? The Tribunal noted side effects from medications may make them impractical [46], but that leaves room for differing outcomes depending on the medical facts.
Quantifying contribution of non-accident factors. The Tribunal acknowledged night-time oedema and other non-accident factors could exacerbate incontinence, and made an allowance (20% of the urological assessment) for non-accident exacerbation, yielding 8% overall [49], [50]. How tribunals should measure and apportion such mixed causation and exacerbation in other cases remains fact-dependent.
Weighting of specialties. Howard endorses the preference for specialist evidence where conflicts arise, but jurisprudentially the balance between deference to specialists and scrutiny of measurement reliability could vary in different factual matrices. For example, where a generalist has longer-term treating knowledge, or where specialists’ examinations are contemporaneous, outcomes could differ [22], [31].
Radiological comparison and evidentiary limits. The Tribunal regretted that the experts lacked direct comparison of films from 1992 and 1997 and noted the limited utility of such comparisons across modalities [31]. The extent to which absence of direct radiological comparison will influence future findings of traumatic disc derangement will depend on the availability and quality of imaging and expert interpretation.
Applicability beyond TAC/Guides framework. Howard’s interpretive approach is grounded in the Guides and TAC statutory scheme; whether the same interpretive principles would transfer in other statutory or common law contexts (for example general damages assessment) is not addressed within the decision and remains open.
In sum, Howard is a fact-specific VCAT decision that emphasises (1) the importance of specialist, reliable medical evidence; (2) a practical, claimant-favouring interpretation of “treatment” under the Guides for bladder dysfunction where non-pharmacological measures are necessary; and (3) careful application of the Guides’ combination methodology to produce a final whole person impairment figure [22], [45], [51]. Practitioners should use Howard as persuasive tribunal-level authority on these points while recognising boundaries remain, particularly regarding the extent of “treatment” and the apportionment of non-accident contributions.
Transport Accident Act; section 46A;assessment of impairment
Medium Neutral Citation [2001] VCAT 1957
1. The decision of the respondent made on 14 April 200o is set aside and there is substituted therefor a decision that the applicant has a whole person impairment of 31%.
______________________________
Applicant Mr A Ramsey of counsel instructed by Riordan & Partners
Respondent Mr M Gorton of counsel instructed by TAC Law
1. The applicant in this matter, Ms Krystine Howard, is a 44 year old married woman. On 31 October 1996 she was a seat-belted passenger in a taxi involved in a transport accident.
2. She was taken by ambulance to Royal Melbourne Hospital where she remained for a week. She was then transferred to the Mount Gambier Hospital for a further fourteen days under the care of her local general practitioner (Dr Olesen) and an orthopaedic surgeon (Mr Henry Forbes).
3. According to the hospital report initial radiological investigation of the pelvis revealed a fracture of the superior and inferior public rami on the left. Subsequent CT scanning revealed quadrilateral pubic rami fractures not extending into the acetabuli; as well she sustained bruising to both thighs and abrasions to the left arm.
4. In her claim for compensation signed on 17 January 1997 she cited her injuries as "4 fractures of pelvis, lacerations (l) arm and hand - 1 x sutured, contusions (L) hip, thigh and leg, multiple contusion bother lower/upper legs, lower back, hip, buttock swelling/injury/pain".
5. On 14 April 2000 the respondent determined her percentage impairment at 24%. The applicant seeks to review that decision.
6. The applicant's claim is that she has sustained injuries of an orthopaedic, neurological, psychiatric and urological nature.
7. The applicant gave evidence to the Tribunal. In addition the Tribunal heard from the following medical witnesses:
Dr James Olesen, the applicant's general practitioner until 4 August 1998
Dr K McEntee, the applicant's current general practitioner.
8. The parties have agreed neurological impairment of 4% relating to the left ulnar nerve and neither Dr Stark nor Mr Brownbill was called. Reports of two consultant medico-legal psychiatrists (Drs Epstein and Strauss) were tendered by consent and neither was called to give evidence.
9. In addition the Tribunal had available to it the various reports and items of correspondence contained in the parties' tribunal books. There was video evidence presented to the Tribunal which covered various activities of the applicant on 27 February 2001 and 6 and 8 September 2001. In relation to the video evidence both Messrs McArthur and Dooley commented that there was nothing in the video that was inconsistent with their findings.
10. The applicant told the Tribunal that prior to the accident she had led a full and active life. She and her husband had been farmers and she had worked as a nurse at the Mt Gambier Hospital. In an attempt to supplement the family income, the applicant had commenced a food manufacturing business called Country Cauldron. By the time this business was established her husband had poor health and although he worked in the business as much as he could, she did the bulk of the supervision, promotion and marketing of the business whilst still working part-time at the hospital. Indeed it was on one of the promotional journeys for the business that the transport accident occurred.
11. She also told the Tribunal that in 1992 she had a heavy fall which resulted in a fractured coccyx but the symptoms emanating from that resolved after a short time.
12. The applicant was examined by Dr Michael Epstein on three occasions and by Dr Nigel Strauss on two. All their reports were tendered to the Tribunal and a summary of each of the practitioner's findings is set out below, arranged in chronological order.
13. There is little to choose between the two experts and in circumstances where neither has been called and each is a reputable and well-respected practitioner I accept the higher of the two figures as being the most appropriate. Dr Epstein had the advantage of seeing the applicant on one more occasion than Dr Strauss and his examinations had the benefit of being more recent in time.
14. I find that the applicant's psychiatric impairment is 10%.
15. I have set out below a summary of the movements and impairments assessed in relation to the applicant's spinal injury. Although Dr Stark was not called I have included his measurements for completeness. His report was obtained at the behest of the applicant and although his specialty is neurology, his expertise is well known to this Tribunal. I have excluded details of measurements taken by Dr Olesen as he did not use a goniometer as required by the Guides to the Evaluation of Permanent Impairment (2nd edition) ("the Guides").
16. I will deal with the movements of the cervical spine first. Dr Olesen who was the applicant's general practitioner from 4 March 1991 up until 4 August 1998 told the Tribunal that his notes contained no record of complaint of cervical pain.
17. Mr Roy Carey (who was not called) supplied a report to Dr Olesen following a referral from him. The report formed part of the general practitioner's notes that were produced to the Tribunal. Mr Carey examined the applicant on 17 August 1998 and diagnosed the applicant's complaint as ulnar neuropathy rather than cervical disc/root lesion but suggested nerve conduction studies.
18. The applicant was referred to Mr Rice, a neurological specialist. He was not called but a report from him dated 16 October 1998 was available to the Tribunal. He noted that on examination at that time, her neck movements were normal. He too related her sensory symptoms to ulnar nerve problems rather than "C8 distribution."
19. When Mr Michael Dooley examined the applicant in June 1997, the applicant complained (inter alia) of shoulder pain which according to her had improved with neck exercises. He told the Tribunal that musculo-ligamentous injury of the neck (as distinct from the spine) can give rise to referred pain into the shoulder and emphasised that the nature of the soft tissue injury here was musculo-ligamentous. In any event there are no measurements of the cervical spine recorded in his 1997 report.
20. The applicant's allegations that Mr Dooley had failed to use a measuring device on the occasion of the second examination were put to him as were her suggestions that his examinations were less than extensive. No such admission was forthcoming.
21. There is a significant difference between the measurements recorded. For instance in examinations conducted by the applicant's own practitioners in July 2000 (and only 9 days apart) Mr McArthur recorded 12% impairment for restriction of movement in the cervical spine and Mr Stark only 5%.
22. Overall I was more impressed by the assessment made by Mr Dooley. There are a number of reasons for this. The first is that, without wishing in any way to downgrade the considerable expertise of Mr McArthur, he is a general surgeon. Mr Dooley's expertise is squarely in the field of orthopaedics. Second, the discrepancies in measurement are such as to convince me that whatever the reasons for Ms Howard's performance on the three days she saw Mr McArthur, the measurements taken on those days were not a true reflection of her permanent condition. Third, I was also mindful of the findings of Mr Rice who noted a full range of movement in October 1998, a finding not dissimilar from Mr Dooley's in August 1998.
23. I find the applicant's restriction of movement in the cervical spine is assessed at 7%.
24. Mr McArthur accorded 5% pursuant to Table 53B(3) of the Guides in relation to disc derangement at the C6/7 level. He told the Tribunal that the residuals associated with this disc derangement were neck pain with restriction of movement, initial left upper arm pain and later on, right upper arm pain.
25. Mr Dooley disagreed with this assessment principally because in his opinion, the cervical injury was musculo-ligamentous in nature. He said that in his experience practitioners tended to attribute any variation on x-ray to trauma but in this case, he had viewed the scan. He told the Tribunal that although the clarity of the scan was poor, it was clear to him that the small disc bulge at C6/7 was a classic age-related problem, not the result of trauma. He added that the condition of levels C5/6 and C6/7 showed the typical degeneration to be expected in a middle-aged person.
26. I prefer the evidence of Mr Dooley because of his undoubted expertise and make no finding in relation to Table 53B(3).
27. The findings in relation to the range of movement of the lumbar spine are as disparate as those of the cervical spine. Overall I have concluded that I should accept Mr Dooley's finding of 6% in preference to the 4% given by Mr McArthur two months earlier and I do so because of his specific expertise in orthopaedic matters.
28. Mr McArthur had also given an impairment of 5% pursuant to Table 53B(3) in relation to a disc lesion with residuals at the L4/5 level. He told the Tribunal that the residuals in this instance were back pain and left sciatic pain.
29. Radiology performed prior to the accident on 20 October 1992 showed "fairly advanced disc degenerative change at L4/5 resulting in significant narrowing of the disc "space". There is also fairly advanced degenerative change at the T10/11 and T11/12 levels".
30. Subsequent to the accident, CT scanning was performed on 7 February 1997. Relevantly the report states that "the L3-4 disc appeared normal. There was a little bulging of the L4-5 disc without significant effacement of the thecal sac or nerve roots. The L5-S1 disc appeared normal." The radiologist's report concludes "No definite abnormality of the lower three intervertebral discs although the patient's size makes visualisation so optimal".
31. It seems unfortunate that neither expert had the opportunity to compare the actual films taken in 1992 with those in 1997 although I note Mr Dooley's comment that comparison might have been of limited utility due to the differing type of radiological investigation. Mr McArthur compared the reports and told the Tribunal that either the facet joints or the disc could cause the residuals. There was, he said "an equal opportunity for both." Mr McArthur disagreed with Mr Dooley's view that the findings on x-ray were normal for a woman of the applicant's age.
32. Mr Dooley told the Tribunal that the changes noted on x-ray were "classic age-related" changes. They were not traumatic but naturally occurring. It was his view that there had not been an injury to the lumbar spine. He told the Tribunal he was reinforced in that view by the nature of the injury. He told the Tribunal it would be unusual to sustain traumatic disc injury in a sideways blow when clearly most of the impact was taken by the pelvis.
33. I am inclined to accept Mr Dooley's evidence preferring his particular expertise and experience. I make no finding of disc derangement with residuals.
34. As a result the total impairment arising from spinal injuries is 13%.
35. Both practitioners assessed some impairment in relation to the applicant's left hip. I am satisfied that it is reasonable to conclude that the applicant's restriction of movement in the hip was caused by the transport accident. For the same reason expressed above I prefer the evidence of Mr Dooley and find that the applicant has 1% whole person impairment in relation to her left hip.
36. I am not satisfied that any restriction in the applicant's ankle arose from the transport accident and make no assessment in that regard. Again I prefer the evidence given by Mr Dooley. Mr McArthur only included the ankle in his last assessment and in cross-examination he confirmed that the ankle complaint had not been present when he first saw the applicant. He conceded that one would expect such a complaint to be evident quite quickly. In addition Dr Olesen told the Tribunal there was no mention in his notes of ankle complaint. Although Dr McEntee told the Tribunal that complaint relating to the ankle was made in August 1999 and that he thought that there had been some change in the applicant's gait arising out of fractures of the sacrum and the pelvis, I was not persuaded by his assumption that her ankle problems were accident-related. As a result the applicant's total orthopaedic impairment amounts to 14%.
37. It is clear that prior to the accident the applicant had no sign of problems with urinary continence save and except some symptoms in 1992 associated with a miscarriage.
38. The Tribunal heard from two specialist urologists, Mr David Kennedy and Mr Gerard Joyce.
39. Following the accident the applicant required a urinary catheter which remained in situ for two weeks. Since there she has experienced urinary symptoms. Mr Kennedy noted when he examined her in September 1998 that she had five documented urinary infections in the preceding fourteen months. She was treated for the infections by Dr Olesen; she has not experienced any infection for some time now. She told the Tribunal that her problems were worse at night but that during the day she made a point of voiding frequently and wore a pad to overcome the difficulty and embarrassment. She said that at night her bladder often emptied before she had time to get to the toilet. Her evidence was that her leg swells at the ankle and on a bad day the swelling progresses up the leg and that this causes problems overnight.
40. When Mr Joyce first examined the applicant he assessed her urinary problems at 5%. On the second occasion he formed the view that the causes were more likely anxiety and depression and assessed her urinary frequency, urgency and urge incontinence at zero.
41. Mr Kennedy first examined the applicant on 10 September 1998 and on that occasion made an assessment under Chapter 9 of the Guides of 10%. He examined her again on 20 July 2000 but on that occasion did not make an assessment. On 12 July 2001 he examined the applicant again and confirmed his earlier assessment of 10%.
42. His evidence to the Tribunal was that it was a well known fact that such a high impact injury to the pelvis might result in damage to the nerves which supply the bladder, which in turn would give rise to her symptoms. He told the Tribunal he could not prove that this had occurred but he explained that the parasympathetic nerves arise from the second, third and fourth sacral roots and that, based on his experience, he thought it likely injury occurred in that way.
43. I accept his evidence in that regard. The applicant had no such problems prior to the accident and I reject Mr Joyce's suggestion that the symptoms were more likely caused by anxiety. I am not convinced that the evidence that overnight leg swelling and subsequent nighttime incontinence arising from that source is such as to exclude the possibility that the applicant's day time incontinence arises as a result of the injury sustained in the transport accident. By that I mean that I acknowledge that the applicant's nighttime incontinence is much worse than during the day and that the worsening of the condition at night is not necessarily related to the accident.
44. Mr Joyce told the Tribunal that he took a history that, but for the precautions taken by the applicant (voiding and wearing a pad), she would suffer problems during the day and in his view if it was necessary to do that, that constituted a considerable disadvantage. This conforms with the applicant's own testimony.
45. Page 182 of the Guides sets out the criteria for evaluating permanent impairment of the bladder. Class 1 (the range of impairment found by Mr Kennedy) states :
A patient belongs in Class 1 when the patient has symptoms and signs of bladder disorder requiring intermittent treatment with normal function between episodes of malfunction
46. Mr Gorton submitted that the applicant did not fall within Class 1. His submission was to the effect that while the applicant was suffering from her recurrent urinary tract infections she required intermittent treatment, but that had not been the case for a number of years. He referred me to the evidence given that some pharmaceutical treatment might assist that applicant and to the failure of the applicant to consult with a treating urologist. I think little turns on that portion of his submission especially as it was conceded by both experts that the medications that might be prescribed could give rise to side-effects and the applicant told the Tribunal that the ingestion of Tofranil (prescribed for the ailment) had indeed produced unacceptable side effects.
47. Mr Gorton referred me to a decision of Mr Davis in Aquilina v TAC [2001] VCAT 1589. He referred me specifically to the following passage of Mr Davis' decision:
....Mr Gorton also stated that in order to be assessed pursuant to Class 1 the disorder "required intermittent treatment". In this case, he stated that there was no evidence that intermittent treatment had taken place or that intermittent treatment or treatment at all was required for the applicant's problems. Mr Moss stated that while there had been no treatment it was possible that if some treatment was tried, it may help the applicant in this regard. In my view, a requirement of intermittent treatment is an essential for an assessment in this regard and the fact that some treatment may help, falls far short of being a requirement for treatment. In this case there is no evidence of required treatment. Under that circumstance, I do not believe it is appropriate to make any assessment for bladder dysfunction.
48. Whilst I agree with Mr Davis' analysis, I am not convinced that Mr Gorton's application of it is appropriate in the instant case. There are some fundamental differences between the two cases. There was no evidence in the Aquilina case that the applicant there found it necessary to take any particular precautions in relation to his alleged condition. That is not the case here. The applicant's evidence was that she found it absolutely necessary to wear a pad during the day and to void regularly. It seems to me that I should interpret the word "treatment" liberally given the nature of the compensation scheme. If the evidence was simply that the applicant voided frequently, then I consider Mr Gorton's argument might have merit. But in my view the requirement to wear a pad at all times is equivalent to a requirement for intermittent treatment and should be viewed in the same way that the application of an ointment to avoid ongoing skin irritation or the application of a bandage to staunch bleeding would be regarded as treatment. The applicant has symptoms and signs of a bladder disorder, none of which were present before the accident and those symptoms give rise to a need for the constant wearing of a sanitary pad. In my view she falls squarely within Class 1.
49. Whether she is at the upper end of Class 1 is perhaps another matter and the impairment issue is somewhat clouded by the presence of some degree of incontinence that is produced by factors entirely unrelated to the transport accident. But it was not suggested that the leg swelling and oedema by itself would have resulted in the overall incontinence suffered by the applicant.
50. Bearing in mind that a Class 1 impairment is to be rated within a range of 0% to 10% I have formed the view that the severity of the applicant's symptoms is not such as to justify an impairment at the very top of that range. That might have been the case had her overall incontinence been solely a product of the accident. Doing the best I can with the evidence before me I have concluded that an assessment of 8% for urological dysfunction would be fair in all the circumstances making a twenty percent allowance for the exacerbation seemingly caused by night time oedema.
51. Using the combined tables ( 13 orthopaedic + 10 psychiatric + 8 urological + 4 neurological) I find the applicant has a whole person impairment of 31%.
______________________________
Howard
TAC [2001] VCAT 1957
The decision of the respondent made on 14 April 2000 is set aside and there is substituted therefor a decision that the applicant has a whole person impairment of 31%. The issue of costs is reserved.