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[2002] AATA 401
respondent. The Tribunal affirmed the decision to reject the claim for permanent impairment compensation ([24]).
1 cited instrument linked from this judgment.
The Tribunal found that Ms Page had significant impairment in her right hand, but that most of it came from rheumatoid arthritis she had before the work incident. It assessed the work-related portion at no more than 5% whole person impairment. The statutory provision quoted in the decision generally barred compensation under s 24 for impairment below 10%, subject to exceptions. The Tribunal decided that the exception for loss of a finger did not apply because the claim was for hand impairment, not loss of specific fingers. It therefore affirmed the rejection of the claim.
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In Page and Telstra Corporation Ltd [2002] AATA 401, the Administrative Appeals Tribunal reviewed a decision dated 23 July 1999 rejecting Suzanne Page's claim for lump sum compensation for permanent impairment under ss 24 and 27 of the (the Act) ([1]). The decision under review concerned alleged impairment to her right index, ring and little fingers, her right hand, and her left hand.
Page worked as an administration officer for Telstra from 1985 to 1998. Her work included delivering goods to field staff and substantial keyboard duties ([2], [5]). On 27 November 1992, while climbing into a work truck, she grabbed a handle and felt a severe burning pain in the back of her right hand ([3]). Telstra accepted liability for time off work and the initial tendon repair surgery to her right ring and little fingers ([4]).
After returning to work on graduated duties, Page resumed full-time work. The Tribunal records that her repetitive keyboard work aggravated her right hand symptoms, and that she stopped work in March 1993 and underwent further surgery, including a tendon graft from her right foot and fusion of a joint in her right thumb ([6]-[8]). Telstra accepted liability for the secondary repair but not the thumb fusion ([8]). Page later transferred to Telstra's Rockhampton office, where her duties were not modified and she continued substantial keyboard work ([9]). In 1998, the right hand deteriorated again, leading to further surgery. Telstra accepted liability for that operation and associated time off work ([10]-[12]).
A significant complication was that Page had generalised rheumatoid arthritis from about 1984, years before the truck incident. The Tribunal heard evidence from orthopaedic surgeons Dr Bulwinkel and Dr Macfarlane, who had considered medical records and imaging ([14]-[17]). Their views differed in important respects about the extent to which the claimed impairment was attributable to the work incident rather than the rheumatoid arthritis.
The Tribunal concluded that the right hand had significant permanent impairment, but that it was due “almost completely” to rheumatoid arthritis ([18]). It preferred Dr Macfarlane's assessment of the work-related component, accepting a maximum of 5% whole person impairment ([19]). As this was below the 10% threshold in s 24(7), and the Tribunal considered the finger-loss exception inapplicable, it affirmed the rejection of the claim ([20]-[24]).
The Tribunal's reasoning had two linked parts: attribution of impairment, and interpretation of the statutory exception.
First, it had to assess how much of Page's right-hand impairment was caused by the work incident. The medical material described both tendon injuries consistent with the 1992 accident and substantial rheumatoid disease. Dr Bulwinkel had treated Page over many years and assessed her right-hand functional impairment at 12% to 15% in a 2000 report, while acknowledging difficulty applying the available guidelines ([16]). Dr Macfarlane's reports distinguished between the tendon ruptures associated with the accident and problems he considered largely or completely related to rheumatoid arthritis, including the right index joint ([17]).
The Tribunal was satisfied that Page's impairment was predominantly due to rheumatoid arthritis, which had affected her significantly since 1984 ([18]). It considered that Dr Bulwinkel had not adequately resolved the task of assigning a percentage to work-related impairment, whereas Dr Macfarlane had done so ([19]). It therefore accepted Dr Macfarlane's figure of a maximum 5% whole person impairment attributable to work. That finding was decisive under the threshold provision.
Second, the Tribunal considered whether s 24(8)(a) displaced the threshold. Section 24(7), quoted in [20], provides that where permanent impairment is less than 10%, compensation under that section is not payable, subject to s 25. Section 24(8)(a), quoted in [21], states that subsection (7) does not apply to impairment constituted by the loss, or the loss of the use, of a finger.
Page argued that the exception applied. The Tribunal rejected that submission because it understood her claim as one for impairment of the hand, translated into whole person impairment, rather than a claim for impairment resulting from the loss of particular fingers ([22]). It acknowledged that three fingers and a thumb contributed to the hand impairment, but treated that as different from a claim for loss of specific fingers. The distinction between the anatomical source of some symptoms and the legal characterisation of the impairment claim was therefore central.
The Tribunal separately noted that it had no evidence on which to find work-related permanent impairment to the left hand ([23]). It did not make a positive finding that the left hand was unimpaired in every respect. Its stated conclusion was narrower: the evidence before it did not establish a work-related permanent impairment there.
The decision quotes and applies ss 24(7) and 24(8)(a) of the Act as they stood for the claim before the Tribunal. The material set out in the reasons establishes the following statutory propositions: under s 24(7), compensation under that section is not payable where permanent impairment, other than hearing loss, is determined to be less than 10%, subject to s 25; under s 24(8)(a), that threshold does not apply to impairment constituted by loss, or loss of the use, of a finger ([20]-[21]).
The decision's contribution in this case is its application of those provisions to the way Page's claim was characterised. The Tribunal treated a claim for impairment of a hand, converted to whole person impairment, as distinct from a claim for the loss of specific fingers ([22]). It consequently applied the threshold to the accepted work-related impairment of 5% ([19]-[20]).
The reasons do not cite earlier authorities to establish a broader test for when the finger-loss exception applies. Nor do they state that the Tribunal was changing the law. They record a conclusion on the statutory language and the evidence in this particular case. The decision should therefore be read as an application of the quoted provisions to the claim before the Tribunal, rather than as establishing a comprehensive rule for all hand or finger impairment claims.
The source provided is the 2002 decision and the statutory text quoted in it. It does not establish the current wording or present-day operation of the Act, nor does it provide later legislative amendments or subsequent decisions. Any assessment of the current law would require checking sources beyond this judgment.
At [18], the Tribunal says Page had significant permanent impairment of the right hand, but that it was due “almost completely” to rheumatoid arthritis. In plain English, the existence of serious impairment did not itself resolve whether compensation was payable. The Tribunal had to identify the part it attributed to work.
At [19], the Tribunal says it accepted Dr Macfarlane's figure of a maximum 5% whole person impairment. This is the work-related percentage the Tribunal used in its reasoning. It did not accept Dr Bulwinkel's assessment as resolving the apportionment problem.
At [20], the Tribunal quotes s 24(7), which provides that compensation is not payable under that section where the relevant permanent impairment is below 10%, subject to s 25. In plain English, the accepted percentage fell below the statutory threshold described in the provision.
At [21], the Tribunal quotes the exception in s 24(8)(a) for impairment constituted by the loss, or loss of the use, of a finger. The issue was whether Page's claim fell within that exception.
At [22], the Tribunal explains why it did not consider the exception applicable. Although finger and thumb problems were part of the clinical picture, the claim was framed and assessed as impairment of the hand translated to whole person impairment, not as impairment from losing specific fingers. In plain English, the Tribunal distinguished the location of symptoms from the statutory description of the claim.
At [23], the Tribunal states that it had no evidence supporting a finding of work-related permanent impairment to the left hand. This is an evidentiary finding, not a general proposition about what evidence is required in every case.
The decision is most relevant as a point of comparison where a workers' compensation claim involves a hand impairment, the claimed impairment is also affected by a pre-existing disease, and the statutory threshold or a finger-specific exception is in issue. The factual combination that mattered here was a documented work incident causing tendon injury, ongoing repetitive work, later hand treatment, and substantial rheumatoid arthritis predating the incident ([3]-[18]).
A lawyer or decision-maker comparing another matter with Page would likely examine how the claim is described and assessed. In this case, the Tribunal treated the claim as one for hand impairment rather than loss of specific fingers ([22]). A different claim that is genuinely constituted by loss, or loss of the use, of a particular finger may present a different statutory question under the text quoted at [21]. The decision does not define the boundaries of that category.
The case also illustrates the importance of medical evidence that addresses attribution, rather than only the total degree of impairment. The Tribunal distinguished overall impairment from the work-related component and preferred the medical opinion it considered to have grappled with that apportionment ([18]-[19]). Where a pre-existing condition is present, the relevant factual question may include what impairment would be attributable to that condition independently of the workplace event. This is a description of the reasoning in this decision, not a universal test stated by the Tribunal.
Finally, the decision may be relevant when a claim includes more than one body part. The Tribunal dealt separately with the right-hand impairment and the alleged left-hand impairment, finding no evidence before it to support a work-related permanent impairment to the latter ([22]-[23]).
The provided judgment does not identify or discuss any later court or tribunal decisions. It contains no citations to subsequent treatment of Page, so no conclusion about whether later decision-makers followed, distinguished, or questioned it can be drawn from this source alone.
Within the judgment itself, the Tribunal does not rely on another precedent for its interpretation of s 24(8)(a). Its reasoning proceeds from the wording of the statutory provisions quoted at [20]-[21], the way it characterised Page's claim at [22], and the medical evidence. The reasons therefore supply no precedent relationship to report for other cases.
A research assessment of later treatment would need to examine subsequent decisions that cite Page, particularly decisions considering whether a claim concerns loss of a finger or instead impairment of a hand, and decisions applying the relevant statutory threshold. The judgment supplied here cannot establish whether such decisions exist or what approach they took.
The reasons do not explain in detail what features distinguish an impairment “constituted by” loss of a finger from a broader hand impairment. The Tribunal states that Page was not claiming impairment resulting from loss of specific fingers, but it does not set out a multi-factor test for classifying other claims ([22]). The application of the exception to a claim involving severe loss of function in one or more fingers, without literal amputation, is not resolved by the text of this decision.
The decision also does not explore the precise method by which competing medical assessments should be weighed when assigning a work-related percentage. It explains why the Tribunal preferred Dr Macfarlane's assessment over Dr Bulwinkel's in this case, but does not state a general evidentiary rule ([19]). The source does not provide the full medical reports or all of the oral evidence, so the reasoning must be understood through the passages the Tribunal chose to summarise.
The relationship between accepted liability for particular treatment or time off work and the later assessment of permanent impairment is not analysed as a separate legal issue. The reasons record that Telstra accepted liability for several operations and periods away from work, while disputing or not accepting other aspects ([4], [8], [12]). The Tribunal's decision concerns the permanent impairment claim and does not state that acceptance of those earlier items determined the impairment question.
Finally, the judgment is from 2002 and quotes provisions as they were applied in this matter. It does not address later amendments, later case law, or the present statutory scheme. Those matters remain outside what can be established from the supplied decision.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
DECISION AND REASONS FOR DECISION [2002] AATA 401
Decision The Tribunal affirms the decision to reject a claim for compensation for permanent impairment pursuant to the provisional of the Safety Rehabilitation and Compensation Act 1988.
..............(Signed)................................
Compensation - permanent impairment - underlying rheumatoid arthritis - percentage due to work - impairment to three fingers is impairment to hand not individual fingers
Safety Rehabilitation and Compensation Act 1988: s24 (7),(8)(a).
1. This is an application to review a decision made on 23 July 1999, to deny lump sum compensation under ss 24 and 27 of the Safety Rehabilitation and Compensation Act 1988, to Suzanne Page in respect to claimed permanent injury/impairment to her right index finger, right ring finger, right little finger, right hand and left hand.
2. The applicant is a single woman who was born on 22 October 1953. She worked as an administration officer with the Respondent from 1985 to 1998.
3. As part of her duties, Ms Page was required to deliver goods to staff in the field at the Emerald Line Depot. On 27 November 1992, whilst getting into a work truck, she grabbed a handle to pull herself up and into the truck. She suddenly felt a severe burning pain in the back of her right hand.
4. As a result of the incident on 27 November 1992:
(a) Ms Page was off work from 27 November 1992 until 27 January 1993;
(b) On 17 December 1992, Dr Bulwinkel, orthopaedic surgeon, operated on Ms Page's right hand to repair the tendons of her right ring and little fingers.
(c) Liability was accepted by the Respondent for both the time off work and for the costs of the surgery.
(d) Ms Page returned to work on graduated duties and resumed full-time work on 12 February 1993.
5. Ms Page's normal work duties involved constant and repetitive keyboard work, doing time sheets, ordering stores and typing letters. She had a heavy keyboard load.
6. The constant keyboard work aggravated Ms Page's right hand injuries to such an extent that she had to stop working on 18 March 1993. She underwent secondary repair surgery on 19 March 1993. A tendon from her right foot was grafted onto her right hand. Also a joint in her right thumb was fused.
7. Ms Page was off work from 18 March 1993 to 31 May 1993.
8. The Respondent accepted liability for the secondary repair but not for the fusion of the joint of the right thumb.
9. In May 1995, Ms Page was transferred to the Rockhampton office of Telstra. Her duties were not modified. She kept performing a substantial amount of keyboard work.
10. In 1998 the condition of Ms Page's right hand began to deteriorate again. She had further surgery by Dr Bulwinkel, in June 1998, involving repair to the right ring and little finger tendons with an open synovectomy of the joint of the right index finger.
11. Ms Page was off work from 22 June 1998 until at least 9 July 2001.
12. The Respondent accepted liability for the latest operation and time off work.
13. Ms Page claims that she has sustained a degree of permanent impairment to her right hand and fingers and seeks compensation for it.
14. The question of whether or not Ms Page has a compensable permanently impaired right hand due to the incident of climbing into the work truck in 1992, is complicated by the fact that she has been suffering from significant generalised rheumatoid arthritis since about 1984. Part of the impairment in her right hand is due to the work-related incident. The balance is due to non-work related rheumatoid arthritis.
15. The Tribunal had the benefit of medical reports and oral evidence from two orthopaedic surgeons, Dr Bulwinkel and Dr Macfarlane. They have been assisted in the formulation of their opinions by radiological investigations such as x-rays and bone scans.
16. Dr Bulwinkel has treated and reported on Ms Page on many occasions since 1992. He operated on her right hand. He has been monitoring her rheumatoid arthritis. Those parts of his report and evidence which the Tribunal finds to be of particular significance are:
"Suzanne returned today the 13 October 1994 for a general review, particularly of her feet. Her right hand has responded well to the previous surgery and she is really very happy with this repair and return of function at this time. She did report to me however that she has stopped taking her rheumatoid arthritis medication - something that worries me a bit."
"The right fifth finger long extensor repair has sagged because of stretch of the repair. This is because of the ongoing rheumatoid activity I am sure and in fact this repair needs a little plication. This is a fairly easy procedure, which Suzanne is keen to have done at an early date.
The right index metacarpo-phalangeal joint deformity is getting much worse with there being significant volar subluxation and destruction of the joint and now an inability to reduce the joint even with firm manual manipulation. At the same time she is troubled with the right middle finger PIP joint chronic swelling with crepitus and fairly severe synovitis on clinical examination. On x-ray this joint is starting to lose bone stock and very much needs an open synovectomy done in the future.
She obviously has a lack of control of her rheumatoid process. She ceased taking the Methatrexate because of nausea and general discomfort and unfortunately the rheumatoid process has proceeded along its own destructive way. I ordered an ESR and a bone scan to assess where things were as far as the rheumatoid process was concerned and with some concern noted the ESR to be 45. The whole body bone scan shows also rheumatoid activity in the medial compartment of the right knee, in the tarsal bones of both feet and in the hands in the distribution of the plain x-ray and clinical presentation would suggest. She also has considerable problems in the wrist joint with the carpus subluxing centrally between the radius and ulna on the right. Unfortunately this is going to very soon require formal fusion.
All in all Suzanne is in a lot of trouble. A number of surgical interventions are going to be required soon. Because of her age I am doing some research into the current availability of the newer generation of metacarpo-phalangeal joint replacements. Silastic ones at her age will fail and particularly when dealing with her dominant hand index metacarpo-phalangeal joint, we have to come up with something better. I do know that there are ceramic and polythene joints available and I am currently researching the state of the art of these particular implants. I expect that I will be able to provide her with a good salvage operation at this joint and I will be back in further contact with her as soon as the information comes to hand.
Obviously when we do anything to the right hand, it is worth attending to the stretched tendon as well and in the very near future we will need to plan a formal wrist fusion procedure.
I will keep you informed as to progress. I have exhorted her to get back into the clutches of the rhuematologists for proper control of her disease as well. I am sure she will talk to you more about this when she next sees you."
"The review at the three-month mark post-surgery showed excellent restoration of anatomical alignment etc in the right index finger metacarpo-phalangeal joint as a result of the iso-elastic replacement. She had excellent almost full metacarpo-phalangeal joint flexion extension range with a slight rotation abnormality secondary to the necessary soft tissue re-balancing procedures. She was increasing her activities slowly under supervision as requested and expected. She still had a slight lag in the full extension of the fifth finger at that stage.
As far as the work capability of Mrs Page is concerned, I believe that the injuries that we have attended to with the above surgery will probably be as good as they are going to get and therefore technically restrictions need not necessarily be placed on her ability for employment. There is however concern in my mind as to whether or not the underlying rheumatoid condition is not going to significantly contribute to further problems arising and I have discussed with Mrs Page what her employment goals should be in light of what has passed and in light of her current continually active rheumatoid arthritis.
For the particular compensable injuries noted above, I do not believe any further treatment will be required. There are, however, other problems associated with her rheumatoid disease that are currently not disabling that will require further treatment in the future. Timing of that treatment will depend entirely on disability and activity of her rheumatoid arthritis."
"This is just to back up our telephone conversation of today outlining the difficulties I have had in assessing permanent partial disability for Suzanne on the Comcare guidelines available. As mentioned above none of the available tables adequately describe a guideline as to percentage disability that can be directly related to Suzanne's particular disabilities.
It is my assessment however that considering all factors involved, a permanent impairment of Suzanne's function would fairly be in the 12% - 15% range when one considers the disabilities in the right hand."
Given the passage of time since 1992, the likelihood is that she would have had synovitis ---?--- Yes.
---giving the same level of interference with function as she has now? --- Yes, I think I can agree with that; yes.
That , given the passage of time, since November 1992, and today is August of 2001 --- ? --- Yes.
--- that the accident, in the long term, has not made those tendons in four and five any worse? --- No. At some time or other it is very likely she would have had some sort of rupture or injury which would have required the same sequence of treatment events; yes.
17. Dr Macfarlane also furnished a number of reports and gave evidence to the Tribunal. Those parts of his reports and evidence which the Tribunal finds to be of particular significance are:
Previous x-rays were seen. Comments are as follows:
1. 7 December 1992: Rheumatoid arthritis is present in both wrists with a subluxed metacarpo-phalangeal joint of the right thumb. There is ulnar drift, widening of the distal radio-ulnar joints.
2. 13 January 1994: X-rays of both feet show cystic changes in the proximal phalanx of the left big toe and rheumatoid arthritis affecting the metacarpo-phalangeal joints of both big toes.
3. 9 January 1998: The right hand: this shows generalised rheumatoid arthritis with a subluxed metacarpo-phalangeal joint of the right index finger.
4. 24 June 1998: This is of the right hand and shows that the metacarpo-phalangeal joint of the right thumb is satisfactorily fused.
The iso-elastic joint replacement at the metacarpo-phalangeal joint of the index finger is in position and is satisfactory.
General rheumatoid arthritis is seen in the right hand and wrist.
1. Generalised rheumatoid arthritis, particularly affecting the right hand and wrist, also shown on bone scan to be affecting the tarsal bones (small bones of the feet) and the right knee and left hand.
2. A rupture of the extensor tendons to the right ring and little fingers, consistent with the accident of 1992.
Subsequent operations are anticipated. It is noted that it is likely that she will come to fusion of the right wrist, possibly at most over the next several years, but this is due to the generalised rheumatoid arthritis and not to her work.
This patient has had an injury to her right hand with rupture of the extensor tendons to the ring and little fingers, consistent with the accident of 1992.
This has been superimposed on long-standing generalised rheumatoid arthritis as noted above.
A secondary procedure was also required in 1993 owing to problems following the initial surgery.
She also had further operation in June 1998 for further repair and plication of the extensor tendon to the little finger. At the same time joint replacement was carried out at the metacarpo-phalangeal joint of the right index finger. X-rays prior to this procedure show subluxation of that joint.
In my opinion the problems related to that joint are due largely, if not completely, to her rheumatoid arthritis. There may have been some aggravation in the course of her work owing to difficulties using her right ring and little fingers, but primarily the problems with that joint in my opinion would relate to the rheumatoid arthritis and only to a relatively small amount due to aggravation by her work.
There is no reason seen for her being totally incapacitated for work since June 1998 and it would be expected that following such a procedure she would have been off work two or three months at most, following which she could have returned to light work.
She is unable to do too much in the way of repetitive work at a keyboard or computer, particularly with her right hand. Matters are expected to become gradually worse, particularly with regard to the right wrist. This relates to the generalised rheumatoid arthritis and is an ongoing matter.
With regard to permanent impairment, after referring to the American Medical Association Guides, 4th Edition, there is in my opinion:
(a) With regard to the ring and little fingers: In the order of 10% (ten percent) loss of each of these fingers which converts to 2% (two percent loss of the hand, 2% (two percent) of the upper extremity.
(b) The right index finger: 61% (sixty-one percent) loss of the finger, converting to 12% (twelve percent) of the hand and 11% (eleven percent) of the upper extremity.
Of this, it is considered reasonable to attribute 20% (twenty percent) to her work, leading to 2% (two percent) impairment of the upper extremity.
This then is 4% (four percent) impairment of the right arm due to her work, which converts to 2% (two percent) impairment of the whole person. This impairment is permanent.
The other problems relating to the thumb and wrist are not related.
The position is stationary and stable with regard to the 1992 injury, but further problems with the rheumatoid arthritis are anticipated.
It is uncertain how long the replacement of the metacarpo-phalangeal joint of the right index finger will last, and further operation may be required in the future.
Further operation on the extensor tendons right ring and little finger is not anticipated or indicated.
Her medications with regard to rheumatoid arthritis and/or gout will require continuation. Further information should be obtained from her Rheumatologist if required.
1. Using the Table 9.4: limb function - upper limb, percentage of whole person impairment: there is 20% (twenty percent) of impairment of the whole person.
In separating the degree of impairment resulting from the injury of November 1992 and the underlying long-standing generalised rheumatoid arthritis that is present, her major problems relate to the rheumatoid arthritis.
Obviously she does have impairment due to the accident, but the Tables do not allow for any assessment of this below 10% (ten percent) of impairment of the whole patient.
In my opinion this is too high and appropriate assessments have been made in my report of 17 February 1999.
Table 9.1 is again difficult to use, but might possibly give an answer of 25% (twenty-five percent) of impairment of the whole person due to her overall problems, though the Table does not help in assessing the problems relating to the extensor tendons of the right ring and little fingers which in my opinion would be relatively minimal and at most in the order of 5% (five percent) of impairment of the whole person. (Under Table 9.1 and not after referring to the widely used American Medical Association Guides).
2. Commenting on Mrs Page's responses to each of the non-economic loss questionnaires:
These comments relate in particular to the work related contribution.
Section 1: Pain and Suffering:
Her pain and suffering relates to widespread generalised long-standing rheumatoid arthritis and only to a minimal amount to the injury of 27 November 1992 due to the rupture of the extensor tendons to the right ring and little fingers.
Section 2: Loss of Amenities:
She may have a little difficulty driving due to the rupture of these tendons, but again almost all of her problems relate to her generalised rheumatoid arthritis.
With regard to her inability to perform keyboard duties, these again refer mostly to the rheumatoid arthritis and only to a small amount to the 1992 injury.
What was the cause, or what was each cause of the loss of extension of all fingers?--- Particularly it is rheumatoid arthritis affecting the extensor tendons of her fingers, with secondarily the rupture of those tendons back in 1992, and thirdly the operation on the index finger of her hand.
Are you able to attribute between those three respective causes as to what caused the loss of extension of all the fingers?--- The extension loss in ring and little fingers would be largely attributed to the accident in '92. The other extension loss would be largely attributed to her generalised rheumatoid arthritis and the subsequent operation on her index finger.
The operation on the index finger, what role did the rheumatoid arthritis play in bringing about the need for that operation?--- It would be a major role in that requirement.
You will see there also, "The fusion of the thumb is all right". Now, what was the reason for the fusion of the thumb?--- Again, to the best of my knowledge it was the rheumatoid arthritis.
18. The Tribunal is satisfied that Ms Page has a significant permanent impairment to her right hand but that the permanent impairment is due almost completely to her rheumatoid arthritis. This is not a case where the impairment has arisen solely because of an aggravation of an underlying condition. The aggravation component is very small. It is also not the case where the so-called "egg-shell skull rule" applies. The major component of Ms Page's impairment to her right hand is due to rheumatoid arthritis from which she has suffered to a significant degree since 1984. That is for at least eight years before the truck incident.
19. It is the view of the Tribunal that in attempting to assign a percentage of work related impairment, compared to a percentage of naturally occurring impairment to Ms Page's right hand, Dr Bulwinkel did not come to terms with the problem, whereas Dr Macfarlane did. The Tribunal accepts Dr Macfarlane's figure of a maximum of 5% of whole person impairment.
20. A whole person impairment of 5% does not give rise to an award of compensation because it is less than 10%. See s 24(7) of the Safety Rehabilitation and Compensation Act 1988.
"24(7) [Where degree of permanent impairment less then 10%] Subject to section 25, if:
(a) the employee has a permanent impairment other than a hearing loss; and
(b) Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section."
21. It was submitted on behalf of Ms Page that subsection 24(7) does not apply in her case because of subsection 24(8)(a) which provides:
"24(8) [Exceptions] Subsection (7) does not apply to anyone or more of the following:
(a) the impairment constituted by the loss, or the loss of the use, of a finger;"
22. The Tribunal does not accept that subsection 24(8) applies in Ms Page's case. Her case is concerned with the loss of function of her right hand and the translation of that to a whole person impairment. It is true that part of her right hand impairment is due to problems with three fingers and a thumb but her claim does not involve a claim for impairment resulting from the loss of specific fingers.
23. The Tribunal has no evidence before it upon which it could find that Ms Page has a work-related permanent impairment to her left hand.
24. The decision to reject a claim for compensation for permanent impairment is affirmed.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Mr D.W. Muller, Senior Member
Signed: .....................................................................................
Solicitor for the Applicant Maurice Blackburn Cashman Lawyers
The Tribunal affirmed the decision to reject the claim for permanent impairment compensation ([24]).