Headache for Comcare as Appeal Dismissed

23 June 2017

In rejecting an appeal launched by Comcare, the Federal Court has lashed out against attempts to cap Whole Person Impairment (“WPI“) for enduring headache pain conditions at three (3) percent.

Under the present legislative regime, the WPI percentage of an individual who has suffered an injury is an attempt to quantify the size, type and duration of compensation payable to that individual. Typically, WPI’s of eleven (11) percent and above will entitle an individual to considerable ongoing impairment payments.

In 2006 the worker at the core of the appeal, at that point a Federal Department of Health and Aging official, was treated for signs of chronic fatigue syndrome and decreased her workload to four days a week.

She was subsequently diagnosed with chronic daily work related migraines, and in May 2008, took leave. She would ultimately be terminated in May 2010 as a result of her inability to carry out essential work functions.

In mid 2014, Comcare rejected the worker’s application for compensation relating to lasting impairment and financial misfortune under sections 24 and 27 of the Commonwealth Safety, Rehabilitation and Compensation Act (1998) (“the Act“), however the Administrative Appeals Tribunal (“the Tribunal“) upheld her right to compensation in late 2015.

In making their determination of the worker’s grade of impairment, the Tribunal referred to chapter 18 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“AMA Guides“), which measures pain disorders qualitatively, rather than quantitatively, for the reasoning that:
“percentages of pain-related impairment have not been used and tested on a widespread basis…. [in making a decision, the authority should compare the impairment of function in performing daily activities to] measureable impairment resulting from similar conditions with similar impairment of function”.

The Tribunal subsequently calculated the worker’s WPI at fourteen (14) percent.

In its appeal, Comcare argued that headaches were well-established medical conditions and “rateable” under chapter 18 of the AMA Guides, attracting a maximum WPI of three (3) percent – well below the ten (10) percent threshold for seeking permanent impairment payments.

Justice Rares found that Comcare’s reading of chapter 18 was erroneous, and would mean that a party’s WPI for a pain disorder could never exceed three (3) percent, even if they “could not work or function at all”.

He held that chapter 18 could not have been intended to limit a decision-maker to awarding no more than three (3) percent for a pain-related impairment, that such an interpretation had “no intelligent purpose” and that a failure to compensate for a significant impairment would constitute an “empty and cruel farce.”

Justice Rares dismissed Comcare’s appeal, and upheld the worker’s cross-appeal against the Tribunal’s calculation of her normal weekly earnings.