The Federal Court has recently found that an 8% assessment under Table 9.17 of Comcare’s second edition of the Guide to the Assessment of the Degree of Permanent Impairment (“the Approved Guide”) was inapplicable and therefore an assessment should be made under the sixth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“the AMA Guide”).
The facts
Karen Broadhurst was employed by the Department of Defence and suffered an injury to her lumbar spine on 12 April 2005.
Ms Broadhurst claimed that she suffered permanent impairment of her legs as a result of referred pain from her back injury.
The Administrative Appeals Tribunal (“the AAT”) concluded that Ms Broadhurst suffered an 8% whole person impairment under Table 9.17 of the Approved Guide. As such, the AAT found that Ms Broadhurst did not suffer the necessary 10% degree of permanent impairment for compensation to be payable to her under section 24 of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”).
Ms Broadhurst appealed to the Federal Court, and argued that the 8% and 13% assessment criteria in Table 9.17 of the Approved Guide were invalid. In this regard, Ms Broadhurst argued that the 8% and 13% ratings in Table 9.17 of the Approved Guide did not allow an assessment at the 10% statutory threshold.
The judgment
The Federal Court found that the scheme established by section 24 of the SRC Act is that an employee is entitled to compensation unless Comcare (or another decision-maker) determines (and is able to determine) that the degree of permanent impairment resulting from a particular injury is less than 10%.
The Court held that the arrangement in Table 9.17, by which 8% and 13% ratings are assigned, frustrated the operation of the statutory scheme which guaranteed Ms Broadhurst compensation unless Comcare (as decision-maker) determines that the degree of permanent impairment is less than 10%. In this regard, the Court said that the “administrative procedure” in the Approved Guide denied the material which was necessary to assign (or to not assign) a 10% value for impairment.
The Federal Court decided that Table 9.17 of the Approved Guide was not applicable to Ms Broadhurst. The Federal Court found that the current edition of the AMA Guide is the sixth edition. The Federal Court remitted the case to the AAT to decide, in accordance with the sixth edition of the AMA Guide, whether the degree of Ms Broadhurst’s permanent impairment was less than 10%, or 10% or more, under subsection 24(7) of the SRC Act.
T 61 2 6201 7243
F 61 2 6257 4011
M 0488 401 335
