Lead Article

May 2017:  “Impairment Assessments – When, How and Why?

Impairment relates to a loss, loss of use or derangement of any body part, organ system or organ function.  The definition includes objectively identifiable impairments such as those due to a fracture or those that are more subjective and may manifest themselves through fatigue or pain.  Whilst both facets are important, it would be unwise to measure an impairment based upon a subjective analysis alone.

Impairment or Disability?

The term “impairment” is sometimes confused with “disability”.  The term “disability” has historically referred to a broad category of individuals with diverse limitations in their ability to meet social, occupational, domestic or recreational demands.  In essence, a disability is an alteration of an individual’s capacity to meet personal requirements.  Whilst an impairment may underpin that disability, the two definitions are quite separate.

The judicial system dealing with compensation allows the Court to award “General Damages”.  There is a defined threshold of $250,000.  The award is based upon an Injury Scale Value (ISV).  That Injury Scale Value in turn is linked with an Impairment Assessment (a percentage of whole body function) that can be quantified by an expert observer.  The more precise the calculation, the more certain is the accuracy of the outcome.

Different jurisdictions use different guidelines for the calculation of this impairment.  The impairment may relate to an individual body part.  Ultimately, when a combination of impairments is combined, a Whole Person Impairment (WPI) can be calculated.  A patient without any impairment will exhibit a 0% WPI.  At the other end of the spectrum, the impairment might be a 99% loss of whole person function.  This would be a quadriplegic who retains intellectual capacity.  That severely afflicted individual, whilst incapable of any voluntary movement, would retain the insight to recognise the untenable state of being trapped within one’s own body.  Most plaintiffs will fall somewhere between these two extremes.

Differing Guides for Evaluation

Several guidelines can be used.  Those most commonly referred to in Queensland have been published by the American Medical Association in “Guides to the Evaluation of Permanent Impairment” (5^th Edition) (AMA 5 Guides).

We previously used Edition 2 and Edition 4.  Already, there is an Edition 6 although it has not been popularly accepted around the country.

WorkCover Queensland, prior to October 2013, relied upon “Guides for the Table of Injuries” for injuries on or after 2 November 2005.

After 15 October 2013, WorkCover Queensland has referred to “Guides for Evaluation of Permanent Impairment” or GEPI.  The first edition has been superseded by the second edition which was published in July 2016.

The Department of Defence relies upon the so-called Comcare Tables and other jurisdictions sometimes specify even more exotic tomes.

Whatever the reference source, it is incumbent upon your orthopaedic expert to use it wisely and accurately.  Anything less should be rejected.

General Advice

May 2017:  “Court Directed Concurrent Expert Evidence – Just How Hot Can The Tub Get?”

The word “conclave” comes from “cum clave” which is Latin for “with a key”.  The term “hot tub” comes from that special environment in the Court room with the Judge, legal counsel and the experts.  The heat presumably radiates from the bodies, is contained in that confined space and is admixed with differences of opinion and anxiety.

Visualise the Tub

The process includes opposing advocates soliciting expert reports, the exchange of reports and then the identification of any significant differences should they exist.  The experts are invited to prepare a joint report outlining why they disagree, if they disagree.  The concurrent expert evidence is then adduced in Court under oath with all present.  The distilled issues are discussed and the Court ultimately issues its judgement.

Prior to fully investigating this concept, I was a disbeliever.  I genuinely thought that it was simply a lazy man’s way of making a judgement.

I now see that I was wrong.  When complex issues are at hand and the Court lacks the ability to truly resolve the complexities, this can be a magnificently useful tool.  I am a convert.

The process has a particularly Australian flavour.  It was initially used in complex trade practice matters (Lockhart J 1976).  The Federal Court expressed interest in 1998.  In Queensland, “r429B” was introduced in July 2014.  It is used infrequently but I see that changing.

Case Vignette

May 2017:  “The Unstable Back”

Spondylolisthesis is a term which refers to the forward slippage of one vertebral body on the subjacent vertebral body.  “Spondylo” is from ancient Greek and refers to the spine and “listhesis” refers to the slippage or sliding.

There can be many causes for this slippage.  One of them is a defect or “fracture” that occurs in the lower part of the lumbar spine.  Approximately 1% of the population can be born with this “fracture” or defect in the pars interarticularis.  A further 3% or 4% of the population will develop this “defect” over the next three or four years of life.  That is to say, 4% or 5% of the normal population six years or more will have this defect.

A subset of this population will then develop the forward slippage of one of the affected vertebra on the subjacent vertebra.  This is a so-called “lytic spondylolisthesis”.

Despite the dramatic appearance of these changes on radiographs of the vertebral column, most of these patients remain asymptomatic.  They are not aware that the condition exists.

A further small subset will be aware of previous problems.  Those patients suffer with degeneration of the disc between the two mobile vertebral segments.  The changes are often witnessed on plane radiographs with narrowing of the disc space and other degenerative changes.

Patients with this condition, asymptomatic and unaware of its existence, can also be subjected to injuries in the workplace, just as the rest of us can.  Radiographic examinations reveal the underlying problem and stimulate great interest from all concerned.

There is a temptation to attribute the ongoing clinical symptom complex to this underlying condition and ignore the effects of the subject workplace accident.

Careful orthopaedic analysis is required.  If the patient was truly asymptomatic prior to the accident and there were no features that indicated to the contrary, then it might be reasonable to assume that the accident has caused the ongoing clinical circumstance.  Conversely, if it can be demonstrated with confidence that the antecedent condition had been symptomatic prior to the accident, the accident may have given rise to either nothing more than a temporary exacerbation or alternatively, a permanent aggravation of the pre-existent condition.  Apportionment of blame will be necessary.