Page v Telstra Corporation Limited

the grounds of appeal 5 The amended grounds relied upon by the applicant were: "4.1 The Tribunal erred in law in deciding that section 24(8) of the Act did not apply in the circumstances of the Applicant's case. 4.2 The Tribunal erred in failing to consider whether the Applicant's claim or part of her claim was for impairment constituted by the ' loss of the use of a finger' within section 24(8) of the Act. 4.3 The Tribunal erred in interpreting section 24(7) of the Act such that an amount of compensation is not payable under section 24 unless the work-related component of the employee's impairment is 10% or more. 4.4 The Tribunal erred in failing to interpret the expression ' the degree of permanent impairment of the employee' in section 24(7) of the Act in accordance with the decision of the Federal Court in Comcare v Amorebieta (1996) 66 FCR 83 at 96 to refer to the overall degree of permanent impairment of the employee, rather than the degree of work-related impairment. 4.5 The Tribunal erred in law in finding that Dr McFarlane had assessed the Applicant as having a 5% work-related permanent impairment, when it was not open to the Tribunal to make such a finding given the evidence of Dr McFarlane under cross-examination. 4.6 The Tribunal erred in law in failing to find that the Applicant had a work-related impairment of at least 10% when that was the only reasonable conclusion capable of being reached on the whole of the evidence. 4.7 The Tribunal erred in law by failing to apply Table 9.4 of the Comcare Guide to the Assessment of the Degree of Permanent Impairment in the circumstances of the Applicant's case." 6 On the hearing of the application, Counsel for the applicant advised the Court that grounds 4.3 and 4.4 were no longer relied upon and were in consequence not the subject of any submission.

the statutory framework 7 The relevant provisions of the Act are as follows: "24(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury. (2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to: (a) the duration of the impairment; (b) the likelihood of improvement in the employee's condition; (c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and (d) any other relevant matters. (3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment. (4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5). (5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide. (6) The degree of permanent impairment shall be expressed as a percentage. (7) 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. (7A) Subject to section 25, if: (a) the employee has a permanent impairment that is a hearing loss; and (b) Comcare determines that the binaural hearing loss suffered by the employee is less than 5%; an amount of compensation is not payable to the employee under this section. (8) Subsection (7) does not apply to any one or more of the following: (a) the impairment constituted by the loss, or the loss of the use, of a finger; (b) the impairment constituted by the loss, or the loss of the use, of a toe; (c) the impairment constituted by the loss of the sense of taste; (d) the impairment constituted by the loss of the sense of smell. (9) For the purposes of this section, the maximum amount is $80,000. ... 27(1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment. (2) The amount of compensation is an amount assessed by Comcare under the formula: [$15,000 x A] + [$15,000 x B] where: A is the percentage finally determined by Comcare under section 24 to be the degree of permanent impairment of the employee; and B is the percentage determined by Comcare under the approved Guide to be the degree of non-economic loss suffered by the employee. (3) This section does not apply in relation to a permanent impairment commencing before 1 December 1988 unless an application for compensation for non-economic loss in relation to that impairment has been made before the date of introduction of the Bill for the Act that inserted this subsection." 8 There was in existence at all relevant times a document called the "Guide to the Assessment of the Degree of Permanent Impairment" ("the Guide") approved under s 28 of the Act. The Guide contains "Principles of Assessment" together with tables setting out levels or degrees of impairment. So far as is presently relevant, the following appears in the Principles of Assessment (pp 4 - 5, 6): "The Impairment Tables Part A of the Guide is based on the concept of 'whole person impairment' which is drawn from the American Medical Association's Guides. Evaluation of a whole person impairment is a medical appraisal of the nature and extent of the effect of an injury or disease on a person's functional capacity and activities of daily living. As with the American Medical Association's Guides, Part A of this guide is structured by assembling detailed descriptions of impairments into groups according to body system and expressing the extent of each impairment as a percentage value of the functional capacity of a normal healthy person. Thus a percentage value can be assigned to an employee's impairment by reference to the relevant description in this guide. Gradation of Impairment Each table contains impairment values at gradations of 5% or multiples of five percent. Where it is not clear which of two impairment values is more appropriate, Comcare has the discretion to determine which value properly reflects the degree of impairment. There is no discretion to choose an impairment value not specified in the Guide. For example, where 10% and 20% are specified values there is no discretion to determine impairment as 15%. Combined Impairments It is important to realise that impairment is system or function based and that a single injury or disease may give rise to multiple loss of function. When more than one table applies to a single injury separate scores should be allocated to each functional impairment. Where two or more injuries give rise to the same impairment a single rating only should be given. Double Assessment The possibility of double assessment for a single loss of function must be guarded against. For example, it would be inappropriate to assess a lower limb amputation by reference to both the amputation table (9.3) and the lower extremity table (9.2). Where an employee suffers from more than one impairment the values are not added but are combined using the Combined Values Table. The purpose of this table is to give the total effect of all impairments, according to a formula, as a percentage value of the employee's whole bodily system or function (see Table 14). Fingers and Toes Impairment relating to the loss or injury to a finger or toe refers not only to amputation or total loss of efficient use of the whole digit, but also to partial loss of efficient use of a digit. Inapplicability of the Guide In the unlikely event that an employees' impairment is of a kind that cannot be assessed in accordance with the provisions of the Guide, Comcare may direct that assessment be made under the provisions of the current American Medical Association's Guides. ... Aggravation An assessment should not be made unless the effects of an aggravation are considered permanent. If the employee's impairment is entirely attributable to a pre-existing or underlying condition, or to the natural progression of such a condition the assessment for permanent impairment should be nil. Where it is possible to isolate the compensable effects of an injury upon a pre-existing or underlying condition the assessment of the degree of permanent impairment should reflect only the impairment due to those compensable effects." 9 The Guide is structured by assembling descriptions of impairments into groups according to body system and expressing the extent of each impairment as a percentage of the functional capacity of a normal healthy person (see definition of "whole person impairment" in the Glossary at p 8). As a consequence of this structure, the impairment tables are prepared by reference to body systems and parts of body systems. Thus, for example, in the present case the assessment was by reference to the "MUSCULO-SKELETAL SYSTEM". There are six impairment tables that relate to the musculo-skeletal system. They are: Table 9.1 Upper Extremity (Percentage Whole Person Impairment) Table 9.2 Lower Extremity (Percentage Whole Person Impairment) Table 9.3 Amputations and/or Total Loss of Function (Percentage Whole Person Impairment) Table 9.4 Limb Function - Upper Limb (Percentage Whole Person Impairment) Table 9.5 Limb Function - Lower Limb (Percentage Whole Person Impairment) Table 9.6 Spine (Percentage Whole Person Impairment) 10 The construction of the Guide and the Tables relating to the "MUSCULO-SKELETAL SYSTEM" have been considered by Full Courts of this Court in Whittaker v Comcare (1998) 86 FCR 532; Comcare v Fiedler [2001] FCA 1810 and Comcare v Van Grinsven [2002] FCAFC 87; FCA 371. 11 In Whittaker, the Court said (at 545): "A number of points can be made from the statutory context of the Guide. The first is that the general principle of the Act, insofar as it makes provision for Commonwealth employee compensation, is that contained in s 24(1), namely, that compensation is payable where an employee suffers an injury that results in a permanent impairment. The second point is that s 24(7) shows that it is only where Comcare determines, by applying the Guide, that the employee's degree of permanent impairment is less than 10 per cent that the employee is disentitled to compensation in respect of the injury already determined to have resulted in permanent impairment. Only then will there be an exception to the general principle in s 24(1). The general legislative purpose or intent is that an employee who suffers injury causing more than minor permanent impairment is entitled to compensation. The third point is that it is only permissible for Comcare to turn to the Guide once it has reached the conclusion, after taking into account the matters listed in s 24(2) of the Act, that the employee has suffered an injury which has resulted in a permanent impairment. The Guide then becomes relevant, but only insofar as it contains the criteria by reference to which Comcare must assess the degree of that employee's permanent impairment. The Guide, which has this limited role, should not be allowed to limit the general legislative purpose. Adopting the approach in Tiscay [Comcare v Tiscay (1992) 38 FCR 181], we would therefore answer the questions raised by the case stated as follows: Question 1 Table 9.5 can be used for the assessment of the degree of permanent impairment resulting from injury to any part of the lower limb, including to any part of a joint. Question 2 Table 9.2 can be used to assess the degree of permanent impairment resulting from injury to a joint in the lower limb irrespective of whether the structures of the joint injured are limited to non-bony elements, but only where the assessment under Table 9.2 results in a higher degree of impairment than would assessment under Table 9.5. Question 3 No Question 4 There is no discretion: where both Tables 9.2 and 9.5 are applicable, the decision-maker must assess the degree of permanent impairment under that one of Tables 9.2 or 9.5 which yields the most favourable result to the employee." 12 In Fiedler, the Court was considering the meaning of the phrase "has difficulty with digital dexterity" as it appears in the first paragraph of the description of level of impairment in Table 9.4. The Court rejected a construction that any level of difficulty with digital dexterity was sufficient. It said (at par [23]): "[23] Something more than minimal problems with digital dexterity is required. But if a person, as a result of his injury, finds it troublesome or not easy to do tasks requiring digital dexterity, that will, adopting the approach to interpretation required by Whittaker at 544 - 545, justify a 10% impairment assessment under paragraph 1 of Table 9.4." 13 The Court dealt with the relationship between Tables 9.1 or 9.3 and 9.4 in the following manner (at pars [27] and [28]): "[27] Table 9.4 is directed to assessing the level of impairment due to an injury involving an upper limb, not just the impairment resulting from "difficulty with digital dexterity": that is apparent from the heading of the Table - "Limb Function - Upper Limb (Percentage Whole Person Impairment)" - and also from the fact that a matter which must be adverted to in assessing impairment under Table 9.4 at each of the four levels provided for in that Table is the person's capacity to use the limb for self-care. Moreover, the Guide makes other provision for assessing impairment due to injuries involving only the fingers. Though, as was pointed out in Whittaker at 539, Table 9.4 is so worded as to enable the assessment of whole person impairment resulting from impairment of "overall limb function" from any cause, the "introduction" to Table 9.1 indicates that where upper limb function with resulting whole body impairment is affected by a specific joint lesion (including to a finger) or an amputation of part of the upper limb (including the whole or part of a finger), the impairment assessment is to be made under Table 9.1 or Table 9.3 rather than Table 9.4. [28] But where it is appropriate to assess impairment under Table 9.4, none of the paragraphs of that Table purports to provide a means for taking into account all the consequences of an injury to an upper limb in assessing the resultant whole body impairment: each paragraph requires the assessment to be made by confining attention to three matters - use of the limb for self-care, use for grasping and holding and difficulty with digital dexterity - irrespective of any other problems the injury in question may have created for upper limb function. For example, the overall strength of the limb may be permanently damaged by muscle wasting or nerve damage to a part of the limb, including damage causing severe pain, with the result that the person is seriously impeded in using the limb for pushing, pulling or weight-bearing." 14 In the case of Van Grinsven, the Full Court was dealing with lower limb impairment per Tables 9.2 and 9.5. However, the observations have equal application to upper limb impairment. Table 9.2 is the analogue of Table 9.1, and Table 9.5 likewise of Table 9.4. As to the approach taken by the Tables and their interaction, the Court said (at pars [14] - [17]): "[14] In our view, the question is one of construction of the Guide, read in context. Table 9.2 in conjunction with Table 14.1 is to be used to make an impairment assessment in relation to two or more lower joint injuries. Table 9.2 assigns whole person impairment values to various singular injuries such as 'loss of less than half normal range of movement of hip or knee' and 'Ankylosis of hip or knee'. Note 4 to Table 9.2 states that 'Values are for one joint only. Where more than one joint is affected, values should be combined using the Combined Values Table (Table 14.1).' Dr Pentis and Ms Bertoldi both assessed each of the respondent's knee injuries as having a 10% Whole Person Impairment under Table 9.2. By reference to Table 14.1 the respondent would thus have a total whole person impairment of 19% when using what may be called a combined singular injury assessment approach. Table 9.2 is one of the Tables dealing with impairments falling within the words 'the loss of the use, or the damage or malfunction, of any part of the body' in the definition of 'impairment', namely joint impairment. Table 9.5 adopts a different approach. It is directed primarily to the loss of bodily function part of the definition of 'impairment'. Thus the heading 'Limb Function - Lower Limb'. Table 9.5 enables an assessment to be made of the level of impairment in the performance of various functions, such as whether the injured person can walk or stand and to what extent. The Table has no equivalent to Note 4 to Table 9.2 referring the assessor to Table 14.1. This suggests that Table 9.5 constitutes a self-contained assessment approach alternative to the combined singular injury assessment method in Table 9.2. A note in the form of Note 4 would be inappropriate as a direction forming part of Table 9.5. The Table is concerned with the impairment of joints, and would not make sense as part of the function-based Table 9.5. For the same reason resort cannot be had to Table 14.1 via the direction under Table 9.1. It too refers only to joint impairment. In the case at hand, it is obviously preferable for the respondent to rely on the approach in Table 9.5 as this gives him a higher total whole person impairment of 20%. Had the respondent's injuries also resulted in his two ankles each having lost half their normal range of movement (10% whole person impairment per ankle), the opposite would be true. It would be to the respondent's advantage to rely on Table 9.2 as this, in conjunction with Table 14.1, would give him a whole person impairment of 34%. [15] The respondent contends that because the heading of Table 9.5, Limb Function - Lower Limb, is in the singular, each knee, being part of an individual limb, is to be assessed individually and the two whole person impairment percentages combined using Table 14.1. Firstly, we again observe that there is no Table 14.1 direction in Table 9.5 and that such a direction would be inappropriate there. Secondly, this submission ignores the specific type of 'impairment' dealt with in Table 9.5. At the start of the Guide, the term 'impairment' is defined more or less in the terms of the definition in the Act - 'the loss, loss of use, damage or malfunction, of any part of the body, bodily system or function or part of such system or function'. Table 9.5 deals with but part of the definition - loss of bodily function. The assessor is not asked to quantify impairment by reference to the injured person's capacity to move a singular limb - 'loss of use of part of the body'. Rather the Table asks for an assessment of totality of motion or function, for example - 'Can rise to standing position and walk but has difficulty with grades and steps'. [16] It is clear that for the purpose of Table 9.5 the respondent does not suffer from more than one impairment. He may suffer from two knee injuries, but for the purpose of Table 9.5 these only give rise to the one impairment - that is, 'Can rise to standing position and walk but has difficulty with grades, steps and distances'. Thus Dr Pentis's assessment is that the respondent has a 20% 'whole person impairment' and Ms Bertoldi's assessment is that he has an 'overall level of lower limb impairment' of 20%. By way of contrast, for the purpose of Table 9.2 he can be said to have multiple impairments. In Table 9.2 each single joint injury is an impairment. That is why it is necessary to use Table 14.1 to combine these impairments in order to obtain the whole person impairment percentage. [17] It follows from what we have said that Tables 9.2 and 9.5 constitute two different assessment regimes. Whether they do was the subject of lengthy discussion in Whittaker v Comcare (1998) 28 AAR 55. Ultimately, the Court resolved (at 67-68) that because it was unclear whether Tables 9.2 and 9.5 overlapped or had a mutually exclusive operation, and if the former what was the relationship between them, the Court should adopt a construction that favours the worker in accordance with the principle applicable to socially remedial legislation. The Court concluded that where both Tables 9.2 and 9.5 are literally capable of application, the injured party should be given the benefit of the more favourable Table. Such an approach gives Comcare the flexibility to deal with the large variety of situations which can emerge when dealing with compensation for injury resulting in a fair outcome for an injured person. By way of example, Table 9.2 combined with Table 14.1 provide just monetary compensation for a person who has injuries which impair the movement in the knees and ankles yet is able to 'rise to a standing position and walk but has difficulty with grades and steps'. Conversely, Table 9.5 ensures a just outcome for a person who has only one or two single joint injuries yet is severely incapacitated in the ability to stand and/or walk." 15 The effect of these Full Court decisions is this: injuries to joints or amputation of or loss of the efficient use (whether whole or partial) of fingers, are to be assessed by reference to Tables 9.1 and 9.3 respectively, unless assessment under Table 9.4 of upper limb function would result in a higher percentage whole person impairment than assessment under either Table 9.1 or Table 9.3. However, where assessment is made under Table 9.4, the assessment is of only one impairment to the upper limb function as a whole, notwithstanding that one or more injuries may give rise to the one impairment. Consequently, in assessing impairment under Table 9.4, one assessment is made of the limb as a whole and not a series of assessments made in respect of particular parts of the limb by reference to the criteria in Table 9.4. There are no multiple impairments under Table 9.4 to be added together or combined under Table 14.1 as is the case under Tables 9.1 and 9.3 (see Van Grinsven at pars [16] and [17]).

the submissions 16 In oral submissions in support of the grounds of appeal generally, Counsel for the applicant submitted that the AAT erred in: 1. failing to apply Table 9.4 to the injury to the tendons of the ring and little fingers of the applicant's right hand; 2. finding that there was a 5 percent impairment of the applicant's ring and little fingers of the right hand under Table 9.1 when that Table was not applicable to an injury involving soft tissues; 3. failing to decide the level of impairment resulting from the injury to the applicant's right index finger; 4. ignoring the clear oral evidence of Dr Macfarlane that the injuries to the applicant's ring and little finger of the right hand fell into the categories of 10 percent, 20 percent or 30 percent impairment under Table 9.4, and preferred the private opinion of Dr Macfarlane that these items were too high; 5. ignoring Dr Macfarlane's oral evidence which indicated a 10 percent impairment of the right index finger under Table 9.1, and 10 percent to 30 percent impairment under Table 9.4; 6. deciding that the applicant had, at most, a 5 percent whole of person impairment. In doing so it misinterpreted or misunderstood the evidence of Dr Macfarlane and thereby made a decision which was not open to it on the whole of the evidence and was unreasonable; and 7. holding that s 24(7) of the Act applied to the circumstances of the applicant having regard to s 24(8) of the Act. 17 The respondent, by its Counsel, submitted that the AAT was entitled to accept and rely upon the evidence of Dr Macfarlane, which it did in preference to that of Dr Bulwinkel. When there is conflict between medical experts as to the nature and effect of any injury, the resolution of such a conflict would, in the event of an appeal, be an appeal upon a question of fact: Australian Telecommunications Commission v Davis (1991) 30 FCR 467; Holt v Comcare [2002] FCA 1484 at [21]. Accordingly, it was submitted the applicant was attempting to appeal a finding of fact determined against her when such an appeal is not available under s 44 of the AAT Act. 18 Further, it was submitted that the evidence of Dr Macfarlane was in accordance with the Guide and the Principles of Assessment contained in it. Thus, it was submitted, no demonstrable error of law arising from the interpretation, or application, of the Guide was made out by the applicant.

the evidence of dr macfarlane 19 Dr Macfarlane gave a written report dated 17 February 1999. After examining the applicant's right hand, Dr Macfarlane observed that there was loss of extension of all the fingers, especially the index and little fingers; the fusion of the thumb was "all right"; and the applicant felt pain in her wrist. He stated: "The right hand and wrist: there is ulnar drift of the right wrist with some pain on movement and some swelling present. The range is restricted as follows: Flexion 0 to 30 degrees Extension 0 to 50 degrees Radial deviation 0 to 10 degrees Ulnar deviation 0 degrees The metacarpo-phalangeal joint of the right thumb has been fused in a neutral position with a 3cm scar over the dorsal aspect. There is a 5cm longitudinal surgical scar over the dorsal aspect of the metacarpo-phalangeal joint of the index finger where a joint replacement has been carried out. The little finger has lag of about 20 degrees of extension at the proximal interphalangeal joint. There is a 12cm surgical scar on the back of the right hand, curved in nature, well healed. In about the mid point of that scar the extensor tendons have been repaired and plicated and are prominent. Otherwise she has a full range of movement of her fingers and thumb, has good pinch grip and is able to finger to palm flex and make a fist without any problems. ... Diagnosis

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.
3. Gout related to the Methotrexate medication. ... Opinion and Assessment 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. (emphasis added) 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. Xrays 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. (emphasis added) The other procedures on her feet do not relate. In reply to your queries:
4. The position of the right hand and wrist is as follows: (a) Generalised rheumatoid arthritis; (b) A fused metacarpo-phalangeal joint right thumb; (c) Arthroplasty and iso-elastic replacement of the metacarpo-phalangeal joint of the index finger; (d) Plication and repair of the extensor tendons to the (ECD) tendons to the right ring and little fingers; (e) Ulnar drift of the wrist with loss of movement and some swelling. 2. The conditions relating to the extensor tendons of the ring and little fingers directly relate to the injury of 27 November 1992. To a minor degree, the arthroplasty of the metacarpo-phalangeal joint of the right index finger relates secondarily to that injury due to her not being able to use ring and little fingers satisfactory post injury. The other problems in her hand do not relate. (emphasis added) 3. The operation and plication on the right ring and little finger extensor tendons and the replacement of the metacarpo-phalangeal joint of the index finger have been successful. 4. With regard to her total incapacity for work, the employment factors with the rupture of the extensor tendons to right ring and little fingers have contributed materially to that total incapacity. However, she herself states that she is unable to return to typing and using of a computer and to her previously senior administrative type work. She states that she does not wish to return to work to other office work, for example filing and making the tea in a more junior capacity. 5. 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 for two or three months at most, following which she could have returned to light work. 6. 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. 7. With regard to permanent impairment, after referring to the American Medical Association Guides, 4th Edition, there is in my opinion: (emphasis added) (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. (emphasis added) 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." 20 In a later report dated 16 June 1999, Dr Macfarlane stated: "In reply to your schedule of questions: 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." 21 In a third report dated 18 October 2000, Dr Macfarlane stated in part: "With regard to the right hand, there is as noted, a total of 13% (thirteen percent) of impairment of the upper extremity. However, there is no doubt that the main factor in her problems is due to widespread generalised long-standing rheumatoid arthritis. There was an injury in 1992 with rupture of the extensor tendons of the right ring and little fingers and appropriate direct assessment has been made for that injury. With regard to the right index finger, allowing for the long-standing problems, 20% (twenty percent) of the problems in that index finger have been attributed to work. My opinion therefore is maintained that she has 4% (four percent) of impairment of the right arm due to her work, which converts to 2% (two percent) of impairment of the whole person and this impairment is permanent. There is no doubt also that she has appreciable disability, but again that is due to her rheumatoid arthritis and/or gout." (emphasis added) 22 The oral evidence which Dr Macfarlane gave during cross-examination, and upon which Counsel for the applicant sought to rely, was as follows: "MR RANGIAH: Doctor, you've attributed 20 per cent of the condition of my client's right index finger to her work, is that correct. And - if it assists, I think that appears on the last page of your report, the first report?---Page - yes. That's correct. And that 20 per cent, is that due to the extra stress placed on my client's index finger from tasks such as using a keyboard?---Yes. And does she also have a loss of the extension of her right middle finger?---Can you direct me to that? Yes, certainly. If you go to the third page of your report, under the heading, The Right Hand?---Yes. Would it be reasonable to - - -?---I'm sorry, I misunderstood you there. I thought you said 'middle finger'. It's little finger. Yes, but it begins - the sentence begins though: The right-hand - there is loss of extension of all the fingers. ?---Yes. Is it reasonable to also attribute some 20 per cent of the loss of extension of the right index finger to the extra stress placed on that finger as a result of activities such as keyboard activities?---Yes. Now, could I ask you to concentrate on my client's right fourth and fifth fingers. Now, it's the case, isn't it, that you've accepted that she does have an impairment related to those fingers as a result of the accident in 1992?---Yes. And is it the case that the impairment includes weakness in those fingers?---Yes. And it also includes loss of movement in those fingers?---Yes. And would you accept that the accident has caused my client to have difficulty with the dexterity in those fingers?---Yes. Would you also accept that the accident has caused my client to have difficulty with holding and grasping objects?---Yes, she may have difficulty. And would you also accept that it's consistent with causing my client difficulties in using a hairbrush and a toothbrush?---Are you just referring to the little and ring fingers? Yes?---Yes, she may have some difficulties, but not excessively so. And would you accept that it may cause her some difficulty with toileting?---Yes. Now, if we take the right index finger and the third finger - - -?---The - the middle finger? Yes, the middle finger. The - can I ask you, do you accept that part of the weakness and loss of movement in those fingers is caused by her work activities?---Yes. And would you accept that she has some difficulty with the dexterity in those fingers?---Yes. And that she also has some difficulty with holding and grasping objects using those fingers?---Yes. And that the impairment of those fingers may also cause her difficulty with using a hairbrush or a toothbrush?---Yes, but probably to a lesser extent at that original stage prior to the operation on her index finger, as far as the other fingers are concerned. And would you also accept that to some extent there's - she may be caused some difficulty toileting because of the impairment of her right index finger and middle finger?---Yes." 23 In re-examination, Dr Macfarlane, so far as presently relevant, said: "MR DICKSON: Under the heading Present Problems - this is in early '99, is that correct?---Yes. 29 January '99. You say: There is a loss of extension of all the fingers. ?---Yes. 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. You say, 'The wrist is very painful'?---Yes. What was the cause of that? ... MR DICKSON: What was the reason for the wrist being very painful at that stage?---That would be due to the rheumatoid arthritis, with inflammation of the lining of the joint a sign of itis. Would the fusion of the thumb, would that have any effect on the capability of the person to carry out day-to-day activities?---Yes, though with that satisfactory fusion it would relieve her pain, and it's in a neutral position, which is a good position for that operation. What about the wrist being very painful? Would that affect day-to-day matters such as dexterity, holding and grasping things, using a hairbrush and toothbrush, and the other things that my friend asked you about?---Yes, but there may be some variation in that pain present. THE D. PRESIDENT: Variation from day to day, or from time to time?---From time to time, Mr Deputy President. Yes. That's the nature of the condition, isn't it?---Indeed. Yes. Variable symptoms, or variable degree of symptoms?---Yes."

use of the tables 24 In my view, the decisions of the Full Court as to the operation of Tables 9.1, 9.3 and 9.4 mean that there was available to the applicant three possible bases upon which permanent impairment could be assessed. 25 First, there was available a single assessment of whole of person impairment under Table 9.4 caused by the injuries to the right index finger, the ring finger, and little finger; and the impact of these injuries on the right upper limb as a whole. Such assessment requires an application of the description of level of impairment by reference to the use of the limb as a whole. The description of the functional impairment of the upper limb which is required before a percentage whole of person impairment is made out, is not satisfied by seeking to apply part of the description to particular parts of the limb in order to obtain a separate percentage for each of the separate parts. 26 Second, there was also available an assessment of impairment by reference to the upper extremity. However, as this assessment using Table 9.1 is limited to the impairment of the function of joints in the upper extremity, only the injury to the joint of the right index finger would be relevant. Assessment under Table 9.1 would necessarily disregard the soft tissue injuries to the ring and little fingers of the right hand. 27 Finally, it was open to the applicant to seek to have the impairment to each finger assessed under Table 9.3 as that Table, as stated in the Principles of Assessment, and in the endorsement on the Table itself, was not limited to the amputation of fingers or total loss of use of fingers, but also related to "partial loss of efficient use of a digit". Assessment under Table 9.3 would have required use of Table 14, the Combined Values Table (see Guide at p 5). 28 Assessment under any of the Tables, because of the pre-existing condition of rheumatoid arthritis, required the percentage of whole personal permanent impairment attributable to the rheumatoid arthritis to be isolated and excluded from the calculation of whole person permanent impairment for the purposes of s 24 of the Act. 29 The applicant did not, before the AAT nor on this application, submit that her permanent impairment should be assessed under Table 9.3. No medical witness was asked to express an opinion as to the degree of impairment by reference to that Table. 30 What the applicant sought to do as reflected in the cross-examination of Dr Macfarlane, in the grounds of appeal and in the oral submissions set out above, was to have the fingers of the right hand assessed individually or in groups by reference to Table 9.4 or to have the right index finger assessed under Table 9.1 because of the impairment of joint function, and to have that percentage impairment added to a percentage impairment assessment in respect of the tendon injury to the ring and little fingers made under Table 9.4. Such an approach is impermissible, in my view, having regard to the decision of the Full Court in Van Grinsven. 31 Nor, in my view, does the cross-examination of Dr Macfarlane give rise to demonstrable legal error on the part of the AAT. The generality of the questions asked and the answers given does not establish that the difficulties which the applicant has with digital dexterity, grasping and holding, and self care, attributable to the work related injury to specified fingers go beyond being minimal or slight difficulties. That is, the questions and answers do not disclose the extent of the problems sufficient to satisfy the threshold, albeit relatively low, required by the decision in Fiedler. 32 Dr Macfarlane, in his report of 16 June 1999, expressed the opinion that the applicant has a 20 percent impairment of the whole person under Table 9.4. It follows that Dr Macfarlane accepted that the relevant description of the level of impairment applicable to the applicant was "Can use limb for self care BUT has NO digital dexterity OR has difficulties grasping and holding". That opinion is consistent with his observations on examination as recorded in his reports set out above. The applicant has submitted that Dr Macfarlane's statement during cross-examination to the effect that the impairment of the right index finger and middle finger to some extent may cause some difficulty to toileting and some difficulty using a hairbrush or a toothbrush, required that the AAT find a 30 percent whole of person impairment due to impairment of function of the upper limb. To make out an entitlement to a 30 percent assessment, the applicant must demonstrate that the permanent loss of function of the upper limb as a whole satisfies the description "retains some use of limb BUT has difficulty with self care". The evidence of Dr Macfarlane under cross-examination does not demonstrate satisfaction of the description. He was not asked to express any opinion with respect to the loss of function of the limb as a whole expressed by reference to this criteria. His opinion by reference to the criteria was that there was a 20 percent impairment and this opinion was not challenged in cross-examination. There was no evidence of Dr Macfarlane which required the AAT to assess under Table 9.4 a whole of person permanent impairment of 30 percent. 33 Further, the applicant contends that because there was some level of impairment conceded by Dr Macfarlane attributable by the work related injury, Dr Macfarlane or the AAT was obliged under Table 9.4 to assess that impairment at 10 percent. In my view that is not correct. 34 To obtain an assessment of 10 percent impairment of the whole person under Table 9.4, it is necessary that the description of level of impairment "can use limb for self care AND grasping and holding BUT has difficulty with digital dexterity" is applicable to the applicant solely on the basis of work related injury causing the impairment. Dr Macfarlane clearly does not hold the view that this description can be applied to the applicant on the basis of her work related injury alone. The contribution is something less than that and not assessable at 10 percent. He correctly says that Table 9.4 does not allow for assessment at less than 10 percent. What Dr Macfarlane then did was to isolate so much of the 20 percent as is assessable under Table 9.4 between non-work related and work related impairment. That he was required to do under the heading "Aggravation" in the Principles of Assessment. The isolation of the compensable effects did not require that Dr Macfarlane apply 10 percent impairment under paragraph 1 of Table 9.4. Rather, it required a simple apportionment of the 20 percent acknowledged impairment between work related and non-work related causes. This he did by attributing 20 percent of the impairment to work related causes: see paragraph 7 of Dr Macfarlane's report dated 17 February 1999. The AAT accepted the apportionment. The effect of Dr Macfarlane's evidence was that, with reference to Table 9.4, 4 percent of the 20 percent impairment of the applicant's whole person was attributable to the work related injury. 35 In his report of 16 June 1999, Dr Macfarlane expressed the opinion: "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)." Dr Macfarlane was not cross-examined on this statement nor on how he calculated the figure of 25 percent. There is no item in the Table applicable to a single figure of 25 percent impairment. It is likely that he has combined 10 percent impairment for the impairment to the joint of the index finger (paragraph 2 of Table 9.1) with some other percentage impairment to a joint or joints of the upper extremity to produce a 25 percent impairment. 36 Table 9.1 does not provide for assessment of restricted use of an upper extremity for reasons other than restricted joint movement. Problems with the extensor tendons of the right ring and little fingers which did not cause the malfunction of a joint in those fingers would not be assessable under Table 9.1. Accordingly, the applicant submitted there was no basis to make an assessment of 5 percent attributable to impairment to both ring and little fingers of the right hand as Dr Macfarlane appears to have done. 37 It is unclear how Dr Macfarlane used Table 9.1 to make an assessment in respect of the right ring and little fingers, unless he treated the loss of extension of those fingers, or one of them, as interference with the function of one of the joints of those fingers and thereby assessable under Table 9.1. It is to be noticed that in his report of 17 February 1999, Dr Macfarlane recorded that there was a loss of extension in all fingers "especially the index and little fingers". Ankylosis of a joint in the ring or little finger would attract an assessment of 5 percent under Table 9.1. If that is correct, the 25 percent permanent impairment figure includes a figure attributable to joint impairment in the ring or little finger of 5 percent. 38 In the view of Dr Macfarlane, only 20 percent of the impairment of the right index finger as a percentage impairment of the whole person was due to the work injury: see his reports dated 17 February 1999 and 18 October 2000. That is, only one-fifth of the 10 percent was work related. Assessment under Table 9.1 thereby produces a whole of person impairment of 2 percent. 39 If the figure attributable to joint impairment which has a work related component under Table 9.1 is 15 percent, ignoring any combined value calculation under Table 14, then of that figure, 3 percent is work related on the evidence of Dr Macfarlane. 40 If Dr Macfarlane erred in including 5 percent permanent impairment attributable to the injuries to the ring or little finger of the right hand in a total assessment of 25 percent permanent impairment by using Table 9.1, then the AAT, by adopting the evidence of Dr Macfarlane, also erred. However, to make out a case justifying curial intervention, the applicant must show that the error was a material one and that, on the evidence accepted by the AAT, it may have come to a conclusion different to that which it reached if the error had not been made: Fiedler at [16]. Having regard to the findings which the AAT made, it would have accepted the evidence of Dr Macfarlane that using Table 9.4, there was a 20 percent impairment of which 4 percent was work related. Otherwise the AAT would have found that using Table 9.1, the applicant has a 10 percent whole of person impairment attributable to the injury to the joint of the right index finger of which 2 percent was work related. It would not have found that more than 5 percent of the permanent impairment from which the applicant suffers was work related. 41 It is by no means clear that Dr Macfarlane erred in his use of Table 9.1 to arrive at a figure of 25 percent permanent impairment of which 5 percent was attributable to the ring or little finger of the right hand. He was not challenged on these figures when under cross-examination. 42 None of the matters pleaded in the grounds of appeal, or agitated in argument by Counsel for the applicant with respect to the use of the Tables or as to the effect of the evidence on the use of the Tables, demonstrates reviewable error of law on the part of the AAT that justifies curial intervention. The only remaining ground relates to the alleged operation of s 24(8) of the Act.

possible operation of section 24(8) 43 Counsel for the applicant submitted that s 24(8) of the Act meant that injuries to fingers and toes were not subject to the 10 percent threshold established by s 24(7) of the Act. 44 As the applicant injured three fingers in the course of her employment with Telstra and as it was the injury to those fingers which gave rise to the claim before the AAT, it was submitted that s 24(7) had no application to the circumstances of the applicant. 45 Section 24(8)(a) of the Act provides that subsection (7) does not apply to "the impairment constituted by the loss, or the loss of the use, of a finger." The section is to protect workers where there is an injury to a finger, eg the amputation of a little finger or ring finger, or a total loss of movement of a thumb joint which, under Table 9.3, only attract a percentage permanent impairment of the whole person of 5 percent. Absent s 24(8), injuries of that type would not attract a sufficient percentage impairment to entitle the worker to a lump sum payment of compensation for permanent impairment under s 24 of the Act. 46 The original claim made by the applicant against Telstra (as appears from the medical report of Dr Bulwinkel forming part of the claim form) was for compensation for permanent impairment to the hand as a whole resulting from injuries to various parts of it. 47 The case advanced by the applicant before the AAT and this Court was impairment constituted by the loss of limb function of an upper limb assessed under Table 9.4 Limb Function - Upper Limb (Percentage Whole Person Impairment). The evidence and submissions were directed to assessment under that Table. A claim assessed under Table 9.4 is a single assessment in respect of the limb as a whole, irrespective of the number or nature of the underlying injuries which give rise to it: Van Grinsven at [16] and [17]. An alternative argument was advanced in respect of impairment constituted by joint function impairment of an upper extremity to be assessed under Table 9.1. The applicant did not purport to advance a claim for impairment constituted by a partial loss of efficient use of one or more of the fingers of the right hand to be assessed individually under Table 9.3 and then combined using the Combined Values Table 14. Nor was any submission made on her behalf as to what the result of such a claim would have been on the evidence accepted by the AAT. 48 In my view it cannot be said that the AAT erred in not treating the impairment which it found as the impairment constituted by the loss, or the loss of use of, a finger. The impairment found to exist was constituted by loss of function of the upper limb or upper extremity and was not an impairment to which s 24(8) applied. Accordingly, the threshold in s 24(7) of the Act continued to apply to the applicant's claim.

conclusion 49 The applicant has not made out reviewable error of law on the part of the AAT. The application will be dismissed. 50 There are no circumstances which would warrant an order for costs being made on a basis other than following the event. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper J.

Associate: Dated: 20 May 2003 Counsel for the Applicant: D Rangiah Solicitor for the Applicant: Maurice Blackburn Cashman

Counsel for the Respondent: RB Dickson Solicitor for the Respondent: Standish Partners

Date of Hearing: 2 September 2002 Date of Judgment: 20 May 2003