Whiteman v Australian Postal Corporation

The Issue 16 Under the Comcare guide, the relevant decision-maker is required, in certain circumstances, to refer to the AMA guide in order to assess the degree of permanent impairment suffered by a claimant. 17 In the present case, on the facts before the Tribunal, because the applicant had an arthroplasty performed on her left shoulder, the relevant decision-makers were obliged to refer to the AMA guide in order to assess the degree of permanent impairment in the applicant's left shoulder. The Tribunal calculated all of the ratings for the applicant's shoulder by referring only to the AMA guide. The applicant argued before me that the Tribunal was required to utilise the ratings for loss of movement from the Comcare guide and the rating for the arthroplasty from the AMA guide.

The Tribunal's Decision 18 At [3]-[5] of its reasons, the Tribunal correctly identified the issues which it was required to determine. The Tribunal said: 3. The respondent will be liable to pay compensation to Ms Whiteman if she has suffered an injury, as defined, that results in permanent impairment of 10% or more: subsections 24(1) and (7) of the Act. Permanent means likely to continue indefinitely: s 4. 4. If compensation is payable under s 24, then the respondent will also be liable to pay compensation to Ms Whiteman for any non-economic loss suffered as a result of the injury: s 27(1). 5. The degree of an employee's permanent impairment is determined by reference to the criteria in the Comcare Guide to the Assessment of the Degree of Permanent Impairment 2005 (the Guide): s 28. 19 At [6], the Tribunal noted that both parties accepted that the applicant has been left with a permanent impairment of her left shoulder as a result of the work-related injury which she suffered on 29 July 2004. The Tribunal then noted that it was the respondent's case that the applicant was not entitled to any lump sum compensation under the Act because the degree of her permanent impairment was less than 10%. 20 After describing the consequences of the applicant's injury (at [8]-[18] of its reasons), the Tribunal referred to various provisions in the Comcare guide and the AMA guide (at [9]-[38] of its reasons). 21 At [39]-[41] of its reasons, the Tribunal said: 39. Counsel for Ms Whiteman contends that Table 9.11 is inadequate for an assessment of her impairment because it assesses range of motion only, and not function. We do not accept that submission. Table 9.11 provides for degrees of shoulder flexion/extension (9.11.1a), internal/external rotation (9.11.1b) and abduction/adduction (9.11.1c) ranging to zero. Some loss of function would almost certainly accompany such restricted range of motion. If recourse to Table 9.14 is needed on the basis that assessment of loss of function is necessary, Table 9.11 could have little, if any, work to do. 40. In our view, a proper reading of the relevant instructions in the Guide leads to the conclusion that an assessor must form the view ("feel") that the impairment is not adequately assessed under Table 9.11 before resorting to Table 9.14. 41. Having said that, all that is required is that the assessor feels that Table 9.11 is not adequate for the assessment. We accept the submission of counsel for Ms Whiteman that one should not undertake a rigorous examination of the assessor's reasoning process. Nevertheless, the assessor must turn his or her mind to the question and arrive at that feeling. It is implicit that the feeling will be based on something rational and reasonable. 22 The Tribunal then reviewed the evidence of Dr Kleinman and Dr McGill. At [58]-[62], the Tribunal considered the application of Table 9.11 of the Comcare guide in the circumstances of the present case. The Tribunal said: 58. Professor Kleinman's concessions (at paragraphs [47] and [48] above) suggest that he should have conceded Table 9.11 adequate to assess Ms Whiteman's impairment. However, all that is required is that he feel that Table 9.11 is inadequate. He has given his reasons for arriving at that position. Having reached that position, it was open to him to undertake an assessment using Table 9.14. We consider his assessment further below. 59. The instructions to Table 9.11 make clear that the rating where an arthroscopy has been undertaken is by reference to the AMA Guides. It is uncontentious that the WPI for arthroscopy in the AMA Guides is 6%. 60. Professor Kleinman and Dr McGill approached the rest of the assessment under Table 9.11 slightly differently. In our view, the approach adopted by Professor Kleinman in his report of 11 January 2010 is correct. The instructions to Table 9.11 refer the assessor to the AMA Guides and directs the assessor to combine the WPIs obtained from them. Having decided that Table 9.11 is adequate, the assessor is directed to undertake the entire assessment according to the AMA Guides where a person has undergone arthroplasty. We do not think Dr McGill's approach to this aspect of the assessment is correct. 61. Adopting this approach, and accepting Professor Kleinman's ratings, Ms Whiteman's whole person impairment is 9% and her claim must fail. If we prefer Dr McGill's rating, her claim still cannot succeed. If assessed by reference to Table 9.11 only, Ms Whiteman's claim must fail. 62. The only way in which Ms Whiteman's claim can succeed using Table 9.11 is by combination of Professor Kleinman's assessment of 4% WPI from Table 9.11 with 6% from the AMA Guides. For the reasons given, we do not think that approach is correct. 23 The Tribunal then considered whether Table 9.14 of the Comcare guide was engaged in the present case and, if so, whether her impairment was 10% WPI when rated under Table 9.14. The Tribunal found that the applicant's impairment is properly rated 5% on Table 9.14. 24 At [77]-[81] of its reasons, the Tribunal expressed its conclusions as follows: 77. Tables 9.11 and 9.14 are not alternatives in the sense that the more beneficial may be applied. 78. Properly assessed by Table 9.11, as Professor Kleinman did, Ms Whiteman's impairment is less than 10% and cannot succeed. 79. The adequacy of Table 9.11 is not assessed by reference to Table 9.14. However, having formed the view that Table 9.11 was inadequate to assess, it was open to Professor Kleinman to assess Ms Whiteman's impairment by reference to Table 9.14. 80. Ms Whiteman does not satisfy the necessary major and minor criteria in Table 9.14 for her impairment to be rated 10%. 81. We affirm the decision under review.

The Relevant Legislative Provisions 25 Section 24(1) of the Act provides that, 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. Under Pt VIII of the Act, certain corporations are authorised to accept and determine claims under the Act made by employees of those corporations. The respondent is such a corporation. The respondent stands in the shoes of Comcare for the purposes of the applicant's claim. 26 "Impairment" and "permanent" are defined in s 4(1) of the Act as follows: impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function. permanent means likely to continue indefinitely. 27 Subsections (3) to (7) of s 24 are in the following terms: 24 Compensation for injuries resulting in permanent impairment … (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. 28 For the purposes of s 24, the maximum amount is currently $159,236.05 (see s 13 and s 24(9)). 29 With some exceptions which are not presently relevant, no compensation is payable unless the degree of impairment is at least 10%. 30 Under s 28 of the Act, Comcare is authorised to prepare a "Guide to the Assessment of the Degree of Permanent Impairment" which sets out: (a) criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury shall be determined; (b) criteria by reference to which the degree of non economic loss suffered by an employee as a result of an injury or impairment shall be determined; and (c) methods by which the degree of permanent impairment and the degree of non economic loss, as determined under those criteria, shall be expressed as a percentage. (see s 28(1)). 31 The current edition of the Comcare guide is the 2nd Edition made in September 2005. 32 Section 27 of the Act provides for the payment of additional compensation for non-economic loss in respect of an injury once s 24 is engaged in respect of that injury.

The Comcare Guide and the AMA Guide 33 Part 1, Principles of Assessment, in the Comcare guide contains the relevant governing principles to be applied when interpreting the guide and the tables in the guide. In Item 1, Impairment and Non-Economic Loss (p 11), after referring to the definition of impairment in s 4(1) of the Act, the authors of the guide state (p 11): It [referring to impairment] relates to the health status of an individual and includes anatomical loss, anatomical abnormality, physiological abnormality, and psychological abnormality. The degree of impairment is assessed by reference to the impact of that loss on the normal efficient functioning of the whole person. Non-economic loss is assessed in accordance with Part 1, Division 2 (page 151) of this Guide, and deals with the effects of the impairment on the employee's life … Non-economic loss may be characterised as the 'lifestyle effects' of an impairment. 'Lifestyle effects' are a measure of an individual's mobility and enjoyment of, and participation in, social relationships, and recreation and leisure activities. The employee must be aware of the losses suffered. While employees may have equal ratings of whole person impairment it would not be unusual for them to receive different ratings for non-economic loss because of their different lifestyles. 34 Under Item 5, The Impairment Tables, the following text appears (p 12): Part 1, Division 1 of this Guide is based on the concept of whole person impairment which is drawn from the American Medical Association's Guides to the Evaluation of Permanent Impairment (see the 5th edition, 2001). Division 1 assembles into groups, according to body system, detailed descriptions of impairments. The extent of each impairment is expressed as a percentage value of the whole, normal, healthy person. Thus, a percentage value can be assigned to an employee's impairment by reference to the relevant description in this Guide. It may be necessary in some cases to have regard to a number of Chapters within Part 1 of this Guide when assessing the degree of whole person impairment which results from an injury. Where a table specifies a degree of impairment because of a surgical procedure, the same degree of impairment applies if the same loss of function has occurred due to a different medical procedure or treatment. 35 Items 7-12 (pp 13-14) provide: 7. Percentages of Impairment Each table in Part 1, Division 1 contains impairment values expressed as percentages. Where a table is applicable in respect of a particular impairment, there is no discretion to choose an impairment value not specified in that table. For example, where 10% and 20% are the specified values, there is no discretion to determine the degree of impairment as 15%. 8. Comparing Assessments under Alternative Tables Unless there are instructions to the contrary, where two or more tables (or combinations of tables) are equally applicable to an impairment, the decision-maker must assess the degree of permanent impairment under the table or tables which yields or yield the most favourable result to the employee. 9. Combined Values Impairment is system or function based. A single injury may give rise to multiple losses of function and, therefore, multiple impairments. When more than one table applies in respect of that injury, separate scores should be allocated to each functional impairment. To obtain the whole person impairment in respect of that injury, those scores are then combined using the Combined Values Chart (see Part 1, Appendix 1) unless the notes in the relevant section specifically stipulate that the scores are to be added (For instance, see 9.8.1 at page 87). Where two or more injuries give rise to the same whole person impairment only a single rating should be given. For example, impairments resulting from separate injuries to the left and right knees are initially assessed separately under Tables 9.3 and then, in accordance with the notes at Part 1 - Introduction to Chapter 9 on page 74, the impairments are combined using the Combined Values Chart to obtain the overall impairment for the lower extremity function which is taken to be a single whole person impairment. Alternatively, a whole person impairment value can be obtained using the method set out in Table 9.7 (which treats the injuries to both knees as the same impairment*) and this value can then be compared to the combined value previously obtained to determine which is the most beneficial. [*The notes on page 84 to Table 9.7 provide: 'A single assessment only may be made under Table 9.7, irrespective of whether one or two extremities are affected by the injury'] However, where two or more injuries give rise to different whole person impairments, each injury is to be assessed separately and the final scores for each injury (including any combined score for a particular injury) added together. It is important to note that whenever the notes in the relevant section refer to combined ratings, the Combined Values Chart must be used, even if no reference is made to the use of that Chart. 10. Calculating the Assessment Where relevant, a statement is included in the Chapters of Part 1, Division 1 which indicates: • the manner in which tables within that Chapter may (or may not) be combined; • whether an assessment made in that Chapter can be combined with an assessment made in another Chapter in assessing the degree of whole person impairment. There are some special circumstances where addition of scores rather than combination is required. These circumstances are specified in the relevant sections and tables in Part 1 of this Guide. … 12. Exceptions to use of Part 1 of this Guide In the event that an employee's impairment is of a kind that cannot be assessed in accordance with the provisions of Part 1 of this Guide, the assessment is to be made under the edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment current at the time of assessment. An assessment is not to be made using the American Medical Association's Guides to the Evaluation of Permanent Impairment for: • mental and behavioural impairments (psychiatric conditions); • impairments of the visual system; • hearing impairment; or • chronic pain conditions, except in the case of migraine or tension headaches. (For complex regional pain syndromes affecting the upper extremities, see Part 1, Chapter 9 - 9.13.3 Complex Regional Pain Syndrome, see page 105). Any reference in this Guide to the American Medical Association's Guides to the Evaluation of Permanent Impairment is a reference to the edition current at the time of assessment, unless there is reference to a specific edition. (Original emphasis.) 36 Chapter 9 of the Comcare guide concerns the musculoskeletal system. Part II of Ch 9 deals with The Upper Extremities (hands and fingers, wrists, elbows and shoulders). 37 The instructions to Pt II of Ch 9, under the heading Part II - Introduction (p 86) provide: The impairments assessed for each region in each upper extremity are combined (that is, hand, wrist, elbow, shoulder). The WPI rating for one upper extremity may be combined with a WPI rating for the other upper extremity, except in the case of assessments under Table 9.14 (see page 109), where the notes appearing prior to Table 9.14 (see page 109) are to be followed. WPI ratings from the following tables must not be combined with a WPI rating under Table 9.14 if they assess the same condition in the same upper extremity: • Tables 9.8.1a, 9.8.1b, 9.8.1c, 9.8.1d (tables dealing with abnormal motion of digits, see pages 87-89); • Tables 9.8.2a, 9.8.2b, 9.8.2c, 9.8.2d (tables dealing with sensory losses in thumb and fingers, see pages 92); • Tables 9.9.1a, 9.9.1b (tables dealing with wrists, see page 94); • Tables 9.10.1a, 9.10.1b (tables dealing with elbows, see page 96); • Tables 9.11.1a, 9.11.1b, 9.11.1c (tables dealing with shoulders, see pages 98-99). If the medical assessor feels that the impairment is not adequately assessed using one of Tables 9.9, 9.10, and 9.11, and the condition involves radiographically demonstrated joint instability, radiographically demonstrated arthritis or where the employee has had an arthroplasty, the medical assessor may consider the effect of the injury on upper extremity function instead and determine the WPI rating using Table 9.14. Where a condition cannot be assessed under a specific table in the Upper Extremities group, an assessment may be made under the provisions of the edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment current at the date of the assessment. (Emphasis added.) All ankylosis assessments from tables in the Upper Extremities group are alternative assessments to those for abnormal motion of the individual joints. The maximum WPI rating for a single upper extremity is 60%, including combined WPI ratings. 38 On p 86 of the Comcare guide, there are set out the relevant steps in calculating upper extremity impairment. 39 Tables 9.11.1a, 9.11.1b and 9.11.1c, in Ch 9 (pp 98-99) provide WPI ratings for impairment to the range of movement of the shoulders. The instructions in the Comcare guide relevant to Item 9.11 (p 97) state: Table 9.11.1a, Table 9.11.1b and Table 9.11.1c (see pages 98-99) assess impairments to range of motion of the shoulders, including ankylosis. Loss of range of motion in each functional range is measured from the neutral position. The range of motion is expressed as the two achievable limits of active motion in each direction through the normal range of motion. It is possible that the only motion that can be achieved is between two points on one side of the neutral position. The WPI rating for restriction of motion in one direction is determined according to the active motion than can be achieved in that direction. It is then added to the WPI rating for the active motion in the reverse direction. Add the abnormal motion WPI ratings for each direction of motion for shoulder flexion/extension, abduction/adduction and internal/external rotation. Where there is ankylosis, including after an arthrodesis procedure, the assessment should only be made under the ankylosis scale. Where an arthroplasty procedure has been undertaken, refer to the edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment current at the date of the assessment. Combine the total WPI rating for abnormal motion with the relevant WPI rating for arthroplasty, obtained from the American Medical Association's Guides. (Emphasis added.) For ankylosis, the optimal or functional position is 20°-40° of flexion, 20°-50° of abduction and 30°-50° of internal rotation. Unless the shoulder has been arthrodesed, an assessment for ankylosis under this table would be rare. The maximum possible shoulder impairment is 35% WPI. For the same condition, a WPI rating from Table 9.11.1a, Table 9.11.1b or Table 9.11.1c may not be combined with a WPI rating from Table 9.14: Upper Extremity Function (see page 109). 40 Table 16-27 in the AMA guide provides ratings for upper extremity impairment after arthroplasty of specific bones or joints. On p 437 of the AMA guide, in order to calculate impairment of the whole person, the reader is directed to Table 16-3. Table 16-3 appears on p 439 of the AMA guide. That table converts UEI ratings to WPI ratings.

Consideration 41 As noted at [22] above, in the present case, the Tribunal took the view that the instructions to Table 9.11 in the Comcare guide make clear that the rating where an arthroscopy has been undertaken is to be calculated by reference to the AMA guide. The AMA guide provides that the WPI for arthroplasty is 6%. 42 The Tribunal (at [60] of its reasons), went on to find that, where a person has undergone arthroplasty, the assessor is directed to undertake the entire assessment according to the AMA guide. 43 The applicant submitted that the Tribunal incorrectly applied Table 9.11 of the Comcare guide. The applicant (correctly) submitted that a failure to pose and answer the correct question is an appellable error of law within the meaning of s 44 of the AAT Act (Roncevich v Repatriation Commission (2005) 222 CLR 115 at [28] (p 126)). 44 The applicant submitted that: (a) The instructions contained in Item 9.11 of Ch 9 of the Comcare guide require the Tribunal to attempt a calculation of WPI pursuant to Tables 9.11.1a, 9.11.1b and 9.11.1c of the Comcare guide in respect of the loss of the range of movement of the shoulder suffered, then to go on to calculate a WPI rating for the arthroplasty pursuant to the AMA guide, and ultimately to combine the two ratings. (b) In particular, the instructions in Item 9.11 require the combination of the abnormal motion WPI rating with the arthroplasty WPI rating. The Comcare guide's Principles of Assessment require ratings to be combined in accordance with the Combined Values Chart. That can only occur if ratings made under Tables 9.11.1a, 9.11.1b and 9.11.1c of the Comcare guide are combined with ratings sourced from the AMA guide. If all UEI ratings are made under the AMA guide, the AMA guide itself would prescribe the procedure for arriving at a WPI figure. (c) The approach advocated by the applicant is supported by the terms of s 24(5) of the Act and relevant extracts from the Principles of Assessment set out at [33]-[35] above. (d) As a consequence of the approach adopted by the Tribunal, the Tribunal did not go on to consider the relative merits of the ratings offered by each of Dr Kleinman and Dr McGill calculated pursuant to Tables 9.11.1a, 9.11.1b and 9.11.1c of the Comcare guide. In particular, if Dr Kleinman's ratings were adopted, the applicant met the 10% threshold required by s 24(7) of the Act. 45 The respondent submitted that the critical part of Item 9.11 is the fifth paragraph which provides: Where an arthroplasty procedure has been undertaken, refer to the edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment current at the date of the assessment. Combine the total WPI rating for abnormal motion with the relevant WPI rating for arthroplasty, obtained from the American Medical Association's Guides. 46 The respondent submitted that the instruction to combine and assess by reference to the AMA guide which appears in the fifth paragraph of Item 9.11 means that it is by reference to the AMA guide, and that guide alone, that the assessment is to be undertaken. The respondent submitted that, whether the Court adopts a literal or a purposive interpretation of the provision, the same result follows: That is to say, it is to the AMA guide, and to that guide alone, that regard must be had once an arthroplasty procedure has been undertaken in respect of the particular claimant. 47 The respondent also drew the Court's attention to the fact that the Combined Values Chart which appears at pp 170-172 of the Comcare guide is reproduced from p 604-606 of the AMA guide. The two charts are identical. 48 The respondent went on to submit that the AMA guide permits the assessor to calculate the total WPI rating for abnormal motion and the relevant WPI rating for arthroplasty and to combine them using the Combined Values Chart. In other words, all of the necessary components of the exercise required to be undertaken are found in the AMA guide. It cannot be said that all the necessary components of that exercise can be found in the Comcare guide. The respondent re-iterated that the Combined Values Chart in each of the Comcare guide and the AMA guide were precisely the same. 49 There is no dispute between the parties that, if the correct approach to the critical question to be determined in the present case is the approach advocated by the respondent, then the decision of the Tribunal was correct. 50 The careful submissions advanced by the parties have crystallised the real question of interpretation thrown up by the present case. Both parties agree that, where an arthroplasty procedure has been undertaken, some reference to the AMA guide has to be undertaken for the purpose of extracting information from that guide or using information from that guide in the assessment exercise required to be undertaken pursuant to the instructions contained in Item 9.11 of the Comcare guide. It is clear that the Comcare guide does not provide a method of calculation which is pertinent when a person has undergone an arthroplasty procedure. It is also clear that the Combined Values Charts that are to be employed in both the Comcare guide and the AMA guide are identical. Therefore, it does not matter to which of those published versions of that Chart resort is had for the purpose of combining the two ratings described in the relevant paragraph of Item 9.11 of the Comcare guide. In the end, the critical question is: Which of the two guides is to be used to calculate the total WPI rating for abnormal motion in the shoulder? It is true that the Comcare guide could be used for that purpose. Tables 9.11.1a, 9.11.1b and 9.11.1c permit such an exercise to be carried out. However, the exercise may also be carried out by using the AMA guide. 51 I think that the respondent's interpretation of the relevant paragraph in Item 9.11 of the Comcare guide is the correct interpretation. Item 9.11 deals with a number of separate ideas or concepts. The first paragraph introduces the matters generally to be dealt with in the balance of Item 9.11. The next three paragraphs address the way in which the loss of range of motion in each functional range is to be measured from the neutral position. There is then to be added abnormal motion WPI ratings for various matters as well as utilisation of the ankylosis scale, where necessary. The next concept is dealt with in the fifth paragraph of Item 9.11. That paragraph deals with the way in which the task of evaluation is to be undertaken where an arthroplasty procedure has been undertaken. The sixth paragraph deals with ankylosis. The seventh and eighth paragraphs contain general instructions. 52 The structure of Item 9.11 supports the respondent's submissions that, once the affected person has undergone an arthroplasty, the entire assessment is to be carried out by reference to the AMA guide alone. I do not think that the fact that the AMA guide first calculates the UEI and then converts the relevant rating to a WPI is a sufficient basis for adopting the applicant's interpretation of the fifth paragraph in Item 9.11 of the Comcare guide. 53 It must also be remembered that, in the fourth paragraph of Pt II - Introduction (Ch 9) (p 86), an instruction is given to use the AMA guide where a condition cannot be assessed under a specific table in the Upper Extremities Group. That instruction is consistent with the proposition that the AMA guide is an appropriate assessment and rating source, at least where the Comcare guide does not specifically cover a particular condition. A similar sentiment is expressed in the first paragraph of Item 12 in Part 1, Principles of Assessment in the Comcare Guide (p 14). 54 In addition, in the first paragraph of Item 5, The Impairment Tables of the Principles of Assessment (p 12), the authors of the Comcare guide make clear that Pt 1, Div 1 (which comprises the thirteen assessment chapters) is based on the concept of WPI which is drawn from the AMA guide. 55 The AMA guide is, in a sense, the progenitor of the Comcare guide. There is nothing inconsistent with the scope and purpose of the Comcare guide for instructions to be given to a medical assessor to go back to the AMA guide where the Comcare guide does not cover the matter. Once that instruction is given, as it is in the fifth paragraph of Item 9.11 (p 97), it makes perfect sense to use the AMA guide to carry out the entire assessment including for the purpose of calculating the total WPI rating for abnormal motion. To use a single source for rating purposes leads to consistency when the two WPI ratings are combined, as directed. There appears to me to be no good reason for using two separate sources and then combining the ratings derived from those sources. 56 There is no warrant for calculating that rating by reference to Tables 9.11.1a, 9.11.1b and 9.11.1c in the Comcare guide, using the AMA guide to calculate the relevant WPI rating for arthroplasty and then using the Combined Values Chart to combine the two. 57 In any event, as a matter of ordinary English, the words "… obtained from the American Medical Association's Guides" in the last line of the fifth paragraph of Item 9.11 (p 97) qualify the whole of the first part of the sentence. That being so, it is to the AMA guide that reference must be had in order to calculate both WPI ratings referred to. This interpretation is reinforced by the first sentence of that paragraph. That sentence means: If you are dealing with a claimant who has undergone an arthroplasty procedure, pick up the AMA guide and use that guide to calculate all relevant WPI ratings.

Conclusion 58 For the above reasons, the question of law posed should be answered "No". That being so, the appeal must be dismissed with costs. 59 There will be orders accordingly. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.