Brown and Australian Postal Corporation (Compensation)

[2023] AATA 2272

Brown and Australian Postal Corporation (Compensation) [2023] AATA 2272 (5 July 2023)

Division:GENERAL DIVISION

File Number(s):      2021/4763

Re:Mrs Vicki Brown

APPLICANT

AndAustralian Postal Corporation

RESPONDENT

DECISION

Tribunal:Mr A. Maryniak KC, Member

Date:5 July 2023

Date of written reasons:        28 July 2023

Place:Melbourne

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.

...........................[sgd].............................................

Mr A. Maryniak KC, Member

CATCHWORDS

WORKERS’ COMPENSATION – right eye injury – where previously accepted injury resulted in permanent impairment – where Applicant previously compensated for a 5% permanent impairment pursuant to section 25(4) of Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether Applicant entitled to further compensation – whether right eye impairment has increased by 10% or more – whether established that Applicant now has a whole person impairment of 15% or more – not established – Decision under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth)

REASONS FOR DECISION

Mr A. Maryniak KC, Member

28 July 2023

1. At the conclusion of the hearing of this matter on 5 July 2023, the terms of the decision and the reasons thereof were stated orally.

2. The oral reasons for that decision have been transcribed by the Tribunal. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3. An extract of the edited transcript is Annexure “A” hereunto and furnished to the Applicant and to the Respondent.

I certify that the following 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Mr A. Maryniak KC, Member

...........................[sgd].............................................

Associate

Dated:  28 July 2023

Date of hearing:	5 July 2023
Applicant:	Mrs Vicki Brown (self-represented)
Counsel for the Respondent:	Mr Ray Ternes
Solicitors for the Respondent:	Australian Postal Corporation

ANNEXURE A

1. MEMBER:  In this application, the Applicant seeks review of the Respondent’s decision of 21 May 2021, affirming a determination of 14 December 2020, that the Applicant was not entitled to compensation for permanent impairment under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) regarding an injury to her right eye on 15 February 1991.

2. At the commencement of this hearing, counsel for the Respondent, drew the Tribunal’s attention to a Respondent’s Amended Statement Of Facts Issues and Contentions, which was lodged with the Tribunal and provided to the Applicant yesterday (RASOFIC).  The Respondent’s counsel also quite properly drew the Tribunal’s attention to a letter, which had previously been provided to the Respondent, from the Applicant’s former solicitors, Maurice Blackburn Lawyers dated 14 April 2022.[1] 

   [1] Exhibit A4.

3. In circumstances where this letter was previously provided by the Applicant to the Respondent in this proceeding, and where the Applicant then confirmed this morning that she had no objection to the report which was discussed in that letter being provided to the Respondent and the Tribunal, hence confirming a waiver of her legal professional privilege, the report of Dr Mark Lazarus dated 2 March 2022 was admitted into evidence.[2]

   [2] Exhibit R3.

4. The Tribunal has considered the statement of the Applicant dated 1 May 2023,[3] her testimony during the hearing today, and the documentary evidence which has been tendered to the Tribunal, including the T-[4] and supplementary T-documents[5] and the Respondent’s Tender Bundle (RTB). In particular, the medical reports of Dr Mark Lazarus, Associate Professor Justin O’Day,[6] Dr Narelle Spencer, Dr Robert Nave and Mr Donald Collie have been considered.

   [3] Exhibit A1.

   [4] Exhibit R1.

   [5] Exhibit R2.

   [6] Exhibit A2.

5. The background to this matter has been conveniently set out in the Respondent’s Amended Statement Of Facts, Issues and Contentions, and the key events are not in dispute.[7]  The 72-year-old Applicant commenced working for the Respondent in August 1987.[8] In February 1988, some years prior to the date of her right eye injury on 15 February 1991 (the right eye injury) the Applicant was referred to the Canterbury Eye Clinic for severely decreased vision in her right eye.[9]  On 2 March 1988, Mr Collie, then treating the Applicant, reported diminished vision in the right eye which followed conjunctivitis and an abnormality of the cornea, attributable to a particular virus (the right eye virus).[10] By 8 February 1990, the Applicant’s right acuity dropped to warrant corneal transplant for her recurrent right eye virus, but surgical intervention was not wise at that stage.[11] 

   [7] RASOFIC, [2]-[29].

   [8] A1; RASOFIC, [2]-[3].

   [9] RASOFIC, [4].

   [10] Ibid [5]; RTB, 74.

   [11] Ibid [6]; RTB, 72.

6. On 1 March 1991, the Respondent accepted liability under section 14 of the Act, for a lacerated right sclera and cornea injury being the right eye injury, which was the result of an accident in which the Applicant was involved when working for the Respondent.[12]

   [12] Ibid [8]; T11, 71.

7. On 25 June 1992, Mr Collie reported that the Applicant suffered from right eye virus related scarring of the right cornea, which was aggravated by her right eye injury, with subsequent reduction in vision to 5% of normal in her right eye.[13] 

   [13] T11, 111.

8. In September 1992, Mr Collie performed a corneal transplant on the Applicant’s right eye.[14]  On 23 September 1993, Mr Collie stated that the Applicant’s right eye condition was no longer materially contributed to by the Applicant’s employment.[15]  On 4 May 1995, Mr Collie stated that the Applicant had suffered a recent exacerbation of the right eye virus at the junction of the graft which reduced her vision in that eye by 50%.[16] 

   [14] T4, 30.

   [15] T4, 31.

   [16] T4, 32.

9. On 30 April 1996, a Tribunal consent Decision was made; the Applicant having a 15% whole person impairment, being 10% psychological and 5% for the right eye.[17]  On 24 August 2004, Mr Collie reported no substantive changes to the condition of the Applicant’s right eye.[18]

   [17] T16, 163-164.

   [18] T4, 33.

10.  On 29 October 2013, the Applicant was examined by Dr Robert Nave, but he was not aware that the Applicant had the right eye virus prior to her right eye injury.[19]  On 6 June 2022, Associate Professor O’Day was of the opinion that the Applicant’s right eye visual disturbance was related to a corneal astigmatism.[20]  On 20 July 2022, following retinal electrophysiological tests, he stated that the testing was normal, and therefore thought that the Applicant’s visual disturbance was related to corneal pathology.[21] 

[19] T11, 114-115.

[20] A2, 1.

[21] A2, 4.

11. On 22 October 2019, Dr Spencer commenced treating the Applicant who had a right eye ache that lasted approximately 15 minutes a week,[22] and Dr Spencer endorsed her claim for permanent impairment and non-economic loss, which is the basis for this application.[23] On 29 October 2020, Dr Spencer noted that the Applicant suffered from intermittent right eye pain.[24]  On 11 December 2020, Dr Nave noted the Applicant’s visual acuity had deteriorated in her right eye from 6/12 in 1995 to 6/60.[25] However, he had ‘considerable doubt’ about such an impairment, as there was no obvious ocular changes which would result in such a significant vision loss.[26]  On 29 April 2021, the Applicant told Dr Spencer that her right eye was comfortable.[27]  Dr Spencer noted her right eye was stable and eventually the Applicant would need to have a right corneal graft and right cataract issues dealt with.[28] 

[22] RTB, 81.

[23] T10, 53-68.

[24] RTB, 24.

[25] T12, 138.

[26] Ibid.

[27] RTB, 21.

[28] Ibid.

12.  On 10 May 2021, Dr Nave was of the opinion that there was no objective change in the condition of the Applicant’s right eye and it was impossible to assess the level of visual impairment.[29]  He noted Dr Spencer gave no explanation for the substantial reduction in visual function, and he had no medical explanation for such recent visual deterioration.[30]  He thought the Applicant was ‘significantly embellishing’ her condition.[31] 

[29] T17, 166-167.

[30] Ibid, 168.

[31] Ibid.

13.  On 1 May 2023, the Applicant stated in a statement to this Tribunal, that her right eye vision had deteriorated and that she had lost sight in that eye.[32]  Further, she testified during the hearing today that she had lost significant vision in her right eye. 

[32] A1.

14. The Respondent conceded during the hearing that the Applicant continues to suffer the effects of the 1991 right eye injury, and that injury had resulted in permanent impairment. The sole issue for determination by the Tribunal is whether the right eye impairment has increased by 10% or more, compared with the impairment compensated for in 1995. Because the Applicant was compensated for a 5% permanent impairment in 1995 pursuant to section 25 (4) of the Act, the Applicant is only entitled to further compensation if it is established that she now has a whole person impairment of 15% or more.

15.  Dr Spencer’s opinion of 14 January 2021 that the Applicant has a calculable whole person impairment,[33] is unique and at odds with all of the other medical evidence before the Tribunal.  Dr Spencer’s opinion is contrary to the opinions of Dr Lazarus and Dr Nave, both of whom essentially found no physiological or clinical cause for any incremental loss of vision in the Applicant’s right eye.[34]  They were unable to provide any assessment of any such ascertainable further impairment, and Mr Collie’s observations are consistent with this.[35]

[33] T16, 162.

[34] R3, 4; T12, 128 and T17, 168.

[35] T11, 110.

16.  The preponderance of expert evidence does not support Dr Spencer’s opinion, but is contrary to it.  Further, there are significant limitations in her opinion, including the fact that she provides no explanation for the Applicant’s self-reported right eye vision loss since 1995.  In addition, Dr Spencer only commenced treating the Applicant in 2019,[36] whereas Dr Nave has examined Applicant in 2013 and then in 2020.[37]  Dr Nave also observed in 2021 that Dr Spencer seemed unaware of the gradual reduction of the Applicant’s right vision function since the corneal graft because Dr Spencer was of the view that the Applicant had poor vision since 1992.[38] 

[36] RTB 81.

[37] T4 and T12.

[38] T17, 168.

17. On balance, in light of the considerations discussed, the Tribunal accepts the bulk of the medical evidence before it and gives it greater weight than the opinion of Dr Spencer. Therefore, it has not been established on the evidence that the Applicant has the requisite 15% or more whole person impairment pursuant to section 25 (4) of the Act.

18.  The correct or preferable decision is to affirm the reviewable decision dated 21 May 2021.