Blade and Comcare (Compensation)
[2015] AATA 615
•19 August 2015
Blade and Comcare (Compensation) [2015] AATA 615 (19 August 2015)
Division
GENERAL DIVISION
File Number
2014/2506
Re
William Blade
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Dr P McDermott RFD, Senior Member
Date 19 August 2015 Place Brisbane The Tribunal affirms the decision under review.
................................[SGD]........................................
Dr P McDermott RFD, Senior Member
CATCHWORDS
COMPENSATION – permanent impairment – whether entitled to compensation – knee conditions accepted – whole person impairment – whether applicant entitled to compensation for permanent impairment resulting from shoulder injury – no foundation for distinction between an injury and consequential or secondary injury – separate assessment of each shoulder required – single shoulder does not meet or exceed threshold percentage – decision under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 24, 27, 60, 124
Commonwealth Employees’ Compensation Act 1930 (Cth)
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Workers’ Compensation Act 1987 (NSW) s 151H
Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 56
Workers’ Compensation and Injury Management Act 1981 (WA) s 146CASES
Broadhurst v Comcare [2010] FCA 1034
Canute v Comcare (2006) 205 CLR 535
Comcare v Lilley [2013] FCAFC 121
Re Dunstan and Comcare (2012) 130 ALD 370
Fellowes v Military Rehabilitation and Compensation Commission (2009) 240 CLR 28SECONDARY MATERIALS
Jurisdictional Policy Advice No. 2007/05
Jurisdictional Policy Advice No. 2014/05
REASONS FOR DECISION
Dr P McDermott RFD, Senior Member
19 August 2015
INTRODUCTION
The applicant has sought review of a determination of 8 May 2014 which affirmed the liability of the respondent to pay compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) for permanent impairment resulting from the right knee and left knee conditions of the applicant, but to deny any entitlement to pay compensation under the Act for the permanent impairment resulting from his right and left shoulder conditions.
History of the Matter
On 1 April 1970 the applicant sustained injuries as a result of a motorbike accident. Liability under the Commonwealth Employees’ Compensation Act 1930 (Cth) was accepted for the conditions of multiple lacerations and abrasions.[1]
[1] Applicant’s Statement of Issues, Facts and Contentions dated 21 May 2015, paragraph 2.
On 29 June 1983 liability was accepted, under the Compensation (Commonwealth Government Employees) Act 1971 (Cth), for the condition of “degenerative osteoarthritis of each knee due to the personal injury of 1 April 1970”.[2]
[2] Exhibit A, T 5, p 27.
On 7 August 1995 a determination was made to pay the applicant compensation under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) for the permanent impairment of the applicant resulting from the lower limb conditions.[3] This determination was reconsidered by the respondent which, on 28 August 1995, determined that the impairment that resulted from the lower limb conditions did not become permanent until after 1 December 1988 (which is the date that the Act came into effect).[4] The respondent determined that the entitlement of the applicant to compensation for the permanent impairment should be calculated under the provisions of the Act. This determination also provided that as a result of his injury of 1 April 1970 the applicant was entitled to compensation under s 24 of the Act for permanent impairment as well as compensation under s 27 of the Act for non-economic loss.
[3] Exhibit A, T 18, p 63
[4] Exhibit A, T 22, p 74.
On 1 December 2012 the applicant wrote[5] to the respondent requesting acceptance of liability and compensation for injuries to his left and right shoulder which he stated were caused by his having to use his arms and shoulders to lift himself following bilateral knee replacement surgery on 4 June 2012.[6] This surgical procedure treated the accepted condition of degenerative osteoarthritis of each knee.
[5] Exhibit A, T 49, p 195.
[6] Exhibit A, T 47, p 191.
On 13 February 2013 a determination was made in which there was acceptance of liability for what was referred to as a “secondary condition of aggravation of bilateral rotator cuff (capsule) strain”.[7] On 19 August 2013, the applicant claimed compensation under
ss 24 and 27 of the Act for the conditions of aggravation of degenerative osteoarthritis of both lower limbs and the secondary condition of aggravation of bilateral rotator cuff (capsule) strain.[8]
[7] Exhibit A, T 51, p 198.
[8] Exhibit A, T 53, pp 215-227.
On 17 January 2014 a determination was made which provided that the applicant was entitled to further compensation under ss 24 and 27 of the Act in respect of the right knee for an additional 10% permanent impairment plus non-economic loss. The determination also provided that the applicant was entitled to further compensation under
ss 24 and 27 of the Act in respect of the left knee for an additional 10% permanent impairment plus non-economic loss.[9]
[9] Exhibit A, T 57, p 237.
The determination of 17 January 2014 provided that the applicant was not entitled to compensation under ss 24 and 27 of the Act for the impairment of the right shoulder. The determination also provided that the applicant was not entitled to compensation under
ss 24 and 27 of the Act for the impairment of the left shoulder.
At the request of the applicant the respondent reconsidered the determination of
17 January 2014. On 8 May 2014 a determination was made to affirm the determination of 17 January 2014.[10]
[10] Exhibit A, T 60, p 252.
RELEVANT LEGISLATION
Section 24 of the Act provides for compensation for injuries resulting in permanent impairment. Relevant subsections of that section provide:
(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…
(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.
Subsection 5A(1) of the Act provides:
(1)In this Act:
"injury" means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
Subsection 4(1) of the Act provides:
"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.
CONSIDERATION
The applicant has asked the Tribunal to make a decision pursuant to s 24 of the Act to decide that the applicant is entitled to compensation in respect to his “secondary condition of aggravation to bilateral rotator cuff (capsule) strain” assessed at 14% whole person impairment.[11] At the hearing of this applicant, counsel for the applicant advanced argument in support of this contention.
[11] Applicant’s Statement of Issues, Facts and Contentions dated 21 May 2015, paragraph 17.
The whole person impairment ratings of the permanent impairment to the applicant, resulting from the conditions of his left and right shoulders, are based upon a report of
Dr Geoffrey Miller, a specialist surgeon who was engaged by the solicitors for the applicant. [12] In his statement of facts, issues and contentions dated 21 May 2015, the applicant contended that Dr Miller had assessed in a report dated 27 March 2013:[13]
[Thirteen percent] whole person impairment for the applicant’s injury for ‘bilateral shoulder strain’ with the right and left shoulder of the applicant attract a 6% and a 7% whole person impairment respectively.
[12] Exhibit B, medical report of Dr Miller dated 17 February 2015.
[13] Applicant’s Statement of Issues, Facts and Contentions dated 21 May 2015, paragraph 7.
Dr Miller in his report of 27 March 2013 referred to the radiological report of the shoulders of the applicant, conducted on 21 December 2011, and the ultrasound report of the shoulders, conducted on 28 November 2012.[14] In his report, Dr Miller has remarked that:
[T]here would appear to have been significant progress of degenerative change in the shoulder joints between the radiograph of 21.12.2011 and ultrasound 28.11.2012. Both these investigations were performed prior to his knee replacements.
However, the ultrasound procedure was performed more than five months after the bilateral knee replacement surgery and not before the bilateral knee replacement surgery that was performed on 4 June 2012.
[14] Exhibit A, T 52, p 207.
The medical evidence before me certainly supports the contention of the applicant that the condition of the shoulder joints has deteriorated after the bilateral knee replacement surgery. Dr Vid Mikus, in his handwritten notes on the ultrasound report dated
28 November 2012, commented that the shoulder conditions of the applicant have occurred because he “has had to put EXCESSIVE STRAIN on shoulders when getting out of chairs etc. This is secondary to his lower limb problems”[15] (original emphasis).
Dr Gerald Hindman, in his report of 29 January 2013, has stated that the applicant has “bilateral rotator cuff injuries/tears following further degenerative changes in the knees”.[16] Dr Hindman also observed that the report of the radiograph of the shoulders that was taken in 2011 referred to arthritic changes in the shoulder joint and the acromio-clavicular joint, but there was no evidence of rotator cuff tendon injury at that time.[17]
[15] Exhibit A, T 48, f 194.
[16] Exhibit A, T 50, f 196.
[17] Exhibit A, T 50, f 196.
The reconsideration decision of 8 May 2014 is a reviewable decision under
s 60 of the Act. This application relates to that part of the reviewable decision which concerns whether the applicant is entitled to compensation for the permanent impairment resulting from the conditions of his left and right shoulders. In this application, the applicant does not take issue with the findings of fact in the reviewable decision concerning the degree of whole person impairment of each shoulder. The reviewable decision contains findings that there is an impairment level of 7% for the right shoulder and an impairment level of 7% for the left shoulder.[18] These findings are based upon a report of Dr Miller, dated 27 March 2013.[19] The more recent report of Dr Miller dated
17 February 2015,[20] contains findings that there is a 6% whole person impairment for the right shoulder and a 7% whole person impairment for the left shoulder. These findings are not challenged by the respondent. While Dr Miller considers that there is a 6%
(and not 7%) whole person impairment caused by the right shoulder condition, it would not be fair to disturb the determination to reflect a lesser degree of impairment where there has been no submission from the respondent in that regard.
[18] Exhibit A, T 1, p 8; Exhibit A, T 57, p 237.
[19] Applicant’s Statement of Issues, Facts and Contentions dated 21 May 2015, paragraph 7.
[20] Exhibit B, medical report of Dr Miller dated 17 February 2015.
The applicant relies upon the assessment of Dr Miller that there is a
whole person impairment of 13% resulting from the bilateral shoulder condition. However, the scheme of the Act imposes a liability to pay compensation for the impairment which results from an injury. In Canute v Comcare (2006) 205 CLR 535 (“Canute”) the
High Court of Australia emphasised the importance of assessing the impairment in respect of each injury. Their Honours remarked (at 540, [10]) that “the Act does not oblige Comcare to pay compensation in respect of an employee's impairment; it is liable to pay compensation in respect of the injury”. These remarks make it clear that the task of this Tribunal is to make an assessment in respect of each injury. This is because s 24(5) of the Act requires Comcare to determine the degree of permanent impairment of the employee resulting from an injury.
Later, in Fellowes v Military Rehabilitation and Compensation Commission (2009) 240 CLR 28 (“Fellowes”) the High Court of Australia pointed out (at 34, [14]), that it is important to have an assessment of “an injury”, and that the “concept of the term is of pivotal importance in the structure of [the Act]”. The High Court of Australia remarked
(at 35, [16]):
...each injury having led to a separate impairment, the degree of permanent impairment of the employee that resulted from the injury was determined by looking to the consequences that followed from that injury. The consequences to be identified, so the appellant submitted, were the consequences that followed from the particular impairment as that term is defined in the SRC Act. In this case, because there were two injuries and two impairments, two amounts of compensation should be awarded.
The effect of the decisions of the High Court of Australia in Canute and in Fellowes have been explained in Broadhurst v Comcare [2010] FCA 1034 by Buchanan J (at [15]):
The High Court [of Australia] made it clear in Canute that the impairment which is to be assessed under s 24 is an individual “impairment” in the sense defined in s 4 – namely, one concerning a part of the body or a bodily system or function. Section 24(5) refers to “the degree of permanent impairment of the employee”. It has been made clear that the reference to “impairment” in s 24(5) is to the same “impairment” referred to in s 24(1) – i.e. impairment in the defined sense, assessed individually. The High Court [of Australia] then made clear in Fellowes that, in the case of each individual assessment under s 24, any reference in the Comcare Guide to “whole person impairment” may only be used to make an assessment, in respect of individual injuries, of how the particular impairment would reduce the functional capacities of a normal healthy person.
The Full Court of the Federal Court of Australia in Comcare v Lilley [2013] FCAFC 121 (“Lilley”) remarked (at [46]):
The statutory task under s 24 thus revolves around the occurrence of an “injury”, so that more than one injury can result from a single workplace incident, and each injury must be separately assessed. Although the determination of the degree of impairment arising from an injury is to be carried out by measuring the effect against the “whole person”, the High Court’s decision in Canute emphasises the whole person impairment approach operates in respect of a specific injury.
The High Court of Australia in Canute (at 539, [8]) has emphasised that the concept of an “injury” is of pivotal importance in the structure of the Act. The members of the
High Court of Australia explained (at 540, [10]) that the definition of “injury” which was then in s 4(1) of the Act is “expressed in terms of the resultant effect of an incident or ailment upon the employee’s body” and is “not used in a global sense to describe the general condition of the employee following an incident”. In Canute, (at 541, [11]) the
High Court of Australia remarked:
[I]mpairment 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.
There is no argument that the present definition of “injury” in s 5A of the Act differs in any material respect to the description of “injury” that was previously contained in s 4. The term “impairment” is defined in s 4 of the Act as requiring an assessment relating to any part of the body, or bodily system or function. This in my view requires an assessment of the impairment resulting from each shoulder condition. Having regard to the reasoning of the High Court of Australia in Canute, it is appropriate to regard each shoulder condition, which is “part of the body”, as constituting an “injury” and to then have an assessment of the “resultant effect of an incident or aliment upon the employee’s body” for each injury. The ailment in question being the accepted condition of degenerative osteoarthritis of each knee. As has been recently emphasised by the Full Court of the Federal Court of Australia in Lilley, each injury must be separately assessed. This is why the Act requires that there be a separate assessment of each shoulder condition.
I have had regard to the reports of Dr Miller dated 27 March 2013[21] and
17 February 2015.[22] I have relied upon on the reports of Dr Miller. I find that, pursuant to
s 24(5) of the Act, the degree of permanent impairment of the applicant resulting from the right shoulder is 6% and that the degree of permanent impairment of the applicant resulting from the left shoulder is 7%. Subject to the operation of s 25 of the Act (which has no relevance in the consideration of this application), the Act provides that where the degree of permanent impairment of an employee resulting from an injury is less than 10%, an amount of compensation is not payable to the employee.[23] As the
High Court of Australia pointed out in Canute (at 549, [39]), s 24 of the Act operates to “deny compensation unless the degree of permanent impairment exceeds a specified threshold percentage”. This is such a case where the degree of permanent impairment of the applicant caused by each shoulder condition injury does not meet the 10% threshold percentage which is prescribed by s 24(7) of the Act.
[21] Exhibit A, T 52, p 207.
[22] Exhibit B, medical report of Dr Miller dated 17 February 2015.
[23] Section 24(7) of the Act.
I have already mentioned that on 13 February 2013 the respondent made a determination in which liability was accepted for what was referred to as a “secondary condition”. While state workers’ compensation legislation adopts the terminology of a “secondary condition” or a “secondary injury”,[24] in Canute, the High Court of Australia emphasised (at 547, [34]) that there is no foundation in the Act for any such distinction between “an injury” and a consequential or secondary injury as neither of these qualities finds any expression in
the Act.[25]
[24] Workers’ Compensation Act 1987 (NSW), s 151H; Workplace Injury Rehabilitation and Compensation Act 2013 (VIC), s 56; Workers’ Compensation and Injury Management Act 1981 (WA), s 146.
[25] See also Re Dunstan and Comcare (2012) 130 ALD 370 at 450, [257] (D P. Forgie).
The applicant has placed reliance on various policy documents that provide for permanent impairment percentages combined to give one single percentage where a single injury results in multiple impairments.[26] However this method of assessment is apparent in the report of Dr Miller dated 17 February 2015 as Dr Miller calculated
whole person impairment for each shoulder by combining the various impairments of tension, extension, abduction, external rotation and internal rotation of each shoulder.
[26] Jurisdictional Policy Advice No. 2007/05; Jurisdictional Policy Advice No. 2014/05.
DECISION
For these reasons I affirm the decision under review.
I certify that the preceding 27
(twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member.................................[SGD]........................................
Associate
Dated 19 August 2015
Date of hearing 18 June 2015 Solicitors for the Applicant Robert Warren, SOMERVILLE LAUNDRY LOMAX SOLICITORS
Counsel for the Applicant
Counsel for the Respondent
Mr Eirth
Ms Brennan
0