Buckley and Comcare (Compensation)

[2016] AATA 151

Buckley and Comcare (Compensation) [2016] AATA 151 (15 March 2016)

Division	GENERAL DIVISION
File Number(s)	2015/0139
Re	William Buckley
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Deputy President Dr P McDermott RFD
Date	15 March 2016
Place	Brisbane

I affirm the decision under review.

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

Deputy President Dr P McDermott RFD

Catchwords

COMPENSATION – compensation for injuries resulting in permanent impairment – compensation for non-economic loss – accepted condition – date of permanent impairment considered – decision affirmed under review

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 24, 27, 45

Compensation (Commonwealth Government Employees) Act 1971 (Cth)

Cases

Department of Defence v West (1998) 85 FCR 491

Re Johnston and Military Rehabilitation v Compensation Commission (2011) 123 ALD 113

Canute v Comcare [2006] HCA 47

Re Russell and Comcare (2000) 63 ALD 734

Secondary Materials

Sutherland P, Ballard J and Anforth A, Annotated Safety, Rehabilitation and Compensation Act 1988 (10^th ed, The Federation Press, 2014)

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

15 March 2016

INTRODUCTION

1. I have to determine whether the applicant is entitled to compensation under ss 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) for permanent impairment and non-economic loss resulting from his accepted condition of ‘pain over central lumbar spine’.[1]

   [1] Exhibit A: T-Documents. T30.

   BACKGROUND

2. On 12 August 1982, Mr William Buckley (“the applicant”) was lifting a box of twelve reams of paper in the course of his employment with the Department of Defence when his back made a cracking sound and he could not get up for a while. In a statutory declaration dated 29 August 1983 he stated that he reported the incident to his supervisor.[2] On 23 June 1983 the applicant made a claim for compensation for what he referred to as ‘slipped discs’.[3] The claim form contains a statement that the date of injury was 12 May 1982; it appears that the applicant intended to refer to the incident of 12 August 1982. On 31 October 1983 a determination was made to accept, liability for ‘pain over the central lumbar spine’ with a date of injury of 12 August 1982.[4]

   [2] Exhibit A: T-Documents. T7.

   [3] Exhibit A: T-Documents. T3.

   [4] Exhibit A: T-Documents. T9.

3. In July 1988 the applicant was referred to a rehabilitation unit for rehabilitation assistance. The applicant was monitored by an occupational therapist during the program which was focused on back care. His capabilities as a registry clerk were assessed for a month in a real work situation in a Government Department where he was assessed as capable of heavy lifting and prolonged standing. The applicant was granted a clearance by his specialist and in December 1988 he was granted a probationary placement with the Department of Defence. He retired from that position on 16 October 1989.[5]

   [5] Exhibit A: T-Documents. T18.

   CLAIMS HISTORY

4. On 20 June 1989 made an election under s 45 of the Act to claim damages against the Commonwealth for non-economic loss arising out of his injury.[6]

   [6] Exhibit A: T-Documents. T19.

5. On 25 March 1991 the applicant made a claim for permanent impairment compensation.[7] On 7 August 1991 a determination was made that the applicant was not entitled to lump sum compensation because his condition had become permanent prior to the commencement of the Act on 1 December 1988.[8]

   [7] Exhibit A: T-Documents. 20.

   [8] Exhibit A: T-Documents. T21.

6. On 30 September 2014, the applicant made another claim for compensation for a permanent impairment.[9] In this claim form, his general practitioner Dr Catton has given his opinion that the degree of permanent impairment of the low back is 20%.[10]

   [9] Exhibit A: T-Documents. T30.

   [10] Exhibit A: T-Documents. T30.

7. On 27 October 2014 a determination was made to deny liability to compensation for permanent impairment and non-economic loss for the accepted condition of the applicant under ss 24 and 27 of the Act. The delegate gave as the reason for the determination that the condition of the applicant became permanent prior to the commencement of the Act because he had laminectomy surgery in March 1988.[11] On 31 October 2014 the applicant made a request for reconsideration of the determination.[12]

   [11] Exhibit A: T-Documents. T32.

   [12] Exhibit A: T-Documents. T33.

8. In his request for reconsideration the applicant complained that he has to live on 75% of his wage and that before his claim of 30 September 2014 he had never made a claim for permanent impairment. The applicant also remarked:[13]

   The loss of use in my left leg was not caused by my head injury in 1972. But it was mainly cause[d] from my supervisor trying to straighten me after slipping a disc in my back. He broke it by being stupid and sticking his knee into my back and trying to straighten me up.

   [13] Exhibit A: T-Documents. T33.

9. On 19 December 2014 the review officer of the respondent affirmed the determination of 27 October 2014. The review officer remarked that the Compensation (Commonwealth Government Employees) Act1971 (Cth) applied to his circumstances and that he had not provided any additional evidence in support of the reconsideration request.[14]

   [14] Exhibit A: T-Documents. T34.

   RELEVANT LEGISLATION

10. I have to determine whether the applicant is entitled to lump sum compensation under ss 24 and 27 of the Act.

11. The Compensation (Commonwealth Government Employees) Act1971 (the 1971 Act) was operative when the applicant was injured. The 1971 Act did not confer any entitlement to compensation in a lump-sum for a back injury; such compensation was only available for the incapacities that are referred to in ss 39 - 42 of the 1971 Act, which did not include back injuries. The Applicant is therefore not entitled to lump sum compensation for his accepted back injury under the 1971 Act.

12. Where there is an injury, loss of damage that was suffered before the commencing day of the Act (which is 1 December 1988) as in this case, s 124(1A) of the Act provides when compensation is payable under the Act. Compensation is payable if compensation was or would have been payable in respect of that injury, loss or damage under the 1971 Act. However, compensation was not payable under the 1971 Act for a back injury.

    MEDICAL REPORTS

13. A number of medical reports are in evidence. After the claim was made the applicant was provided with physiotherapy treatment of hydrotherapy and heat treatment from June 1983 until December 1987. In 1984 the applicant underwent a session with a chiropractor.

14. Dr Brendan Dooley, orthopaedic surgeon, in his report of 29 August 1985 gave his opinion that the chronic low back strain of the applicant resulted from the incident on 12 August 1982. Dr Dolley reported that while the lumbar spine was clinically normal there was aggravation of lumbar disc degeneration with disc rupture which he thought was probably permanent. Dr Dooley also reported on the paralysis of the left leg with a valgus deformity in the foot, increased reflexes and the limp of the applicant. Dr Dooley thought that the leg condition was the result of an incident at school in which the applicant suffered a fractured skull when there was cerebral contusion.[15]

    [15] Exhibit A: T-Documents. T13.

15. Dr Smith, general practitioner, reported on 15 May 1987 that the applicant had a compound fracture of the skull due to an assault on 26 February 1972. The applicant was then unconsciousness for six weeks and had a residual limp and slurred speech. Dr Smith reported that the applicant had recurrent disc prolapse and sciatica (left side) which he thought was probably due to the incident on 12 August 1982. Dr Smith considered that by 17 March 1987 the applicant had substantially recovered and was given clearance for work on 20 March 1987. In his report Dr Smith stated that the back condition could recur.[16]

    [16] Exhibit A: T-Documents. T14.

16. In 1987 the applicant developed severe low back pain and a spasm when he bent down at home to pick up a peg. After an MRI detected a disc protrusion the applicant was referred for surgery. On 15 March 1988 the applicant had discectomy surgery for the L5/S1 disc.

17. On 27 October 1988, Lesley Richardson, physiotherapist reported that the applicant’s ‘poor gait is not a result of his back problem but of a previous injury, it does significantly increase the strain on his lower back’.[17]

    [17] Exhibit A: T-Documents. T17.

18. Reports from Dr Catton, general practitioner, on 1 September 2003 and Dr Morris, orthopaedic surgeon, on 18 March 2003 indicate that the back condition was then stable.[18]

    [18] Exhibit A: T-Documents. T24-25.

19. Dr Catton, general practitioner, reported on 7 October 2003 that he saw the applicant on 16 July 2003, he had fallen out of a car when his left leg gave way injuring his back and left leg. On that occasion the applicant was not given any treatment.[19]

    [19] Exhibit A: T-Documents. T25.

20. On 3 September 2008, Dr Philip Haynes, consultant occupational physician, reported that the Applicant had a prognosis of permanent low backache. Dr Haynes reported that the applicant had advised that there was sustainable benefit as a result of the discectomy surgery. Dr Haynes also thought that the applicant could be considered fit for four hours work for five days of the week. Dr Haynes thought that the applicant could undertake office based work duties where he is able to sit or stand from time to time. Dr Haynes then considered that the applicant was fit to return to some restricted work duties or undertake a rehabilitation program. Dr Haynes also recognised that the previous head injury of the applicant does cause some incapacity for work because of wasting and weakness of the left leg.[20]

    [20] Exhibit A: T-Documents. T28.

21. A recent CT scan of the lumbar spine on 6 July 2015 shows that the nerve roots remain unencumbered.[21]

    [21] Exhibit B: CT Scan dated 6 July 2015.

22. The most recent medical report concerning the accepted condition is the treating practitioner’s assessment on 30 September 2014 in the claim form. Whilst the applicant comments that ‘backpain is so severe I get sick of taking pills’,[22] Dr Catton, general practitioner, comments:[23]

    Analgesia rarely prescribed. He copes with any pain without medication except for occasional Panadeine Forte… Low back discomfort requires major changes of position every 30 minutes: eg standing to sitting or lying or walking. Able to use most forms of transport up to 20-30 minutes.

    [22] Exhibit A: T-Documents. T30.

    [23] Exhibit A: T-Documents. T30.

    CONSIDERATION

23. The issue before the Tribunal is whether the Applicant is entitled to compensation for permanent impairment and non-economic loss resulting from his accepted condition of ‘pain over central lumbar spine’ under ss 24 and 27 of the SRC Act.

24. The applicant was injured when the 1971 Act was in force. That Act did not confer any entitlement to lump-sum compensation for a back injury. Compensation is payable under the Act in respect of an injury, loss or damage suffered before the commencing day of the Act, if compensation was or would have been payable in respect of that injury, loss or damage under the 1971 Act.[24]

    [24] See s 124(1A).

25. In Department of Defence v West (1998) 85 FCR 491 Merkel J (at 512) identified that I should consider ‘whether, in a particular case, the permanent impairment existing as at 1 December 1988 has deteriorated to an extent that that it is properly to be characterised as a further or different impairment to that which existed at the commencement date’.[25]

    [25] See also, Re Johnston and Military Rehabilitation v Compensation Commission (2011) 123 ALD 113.

26. There is no medical evidence before the Tribunal which shows that the accepted condition can be characterised as a further or different impairment to that which existed at the commencement date. Reports from Dr Catton, general practitioner, on 1 September 2003 and Dr Morris, orthopaedic surgeon, on 18 March 2003 indicate that the back condition was then stable. Dr Haynes in 2008 reported that the applicant had advised that there was sustainable benefit as a result of the discectomy surgery. A recent CT scan shows that the nerve roots of the lumbar spine remain unencumbered.[26]

    [26] Exhibit B: CT Scan dated 6 July 2015.

27. I do not accept the self-report of the applicant concerning his current pain levels. The most recent medical report from the treating doctor indicates that the applicant ‘copes with any pain without medication except for occasional Panadeine Forte’. In that report there is an indication that ‘Low back discomfort requires major changes of position every 30 minutes’. If anything the back position appears to have improved because in 2002 Dr Catton indicated that then applicant could not sit or stand still for more than 10 minutes.

28. I do not accept that there is any cogent medical evidence of the deterioration of the permanent impairment which is the accepted condition. That is why I consider that there is no need to give consideration to whether there is any change to the underlying patho-physiological condition of the back. If there was evidence of deterioration of the accepted condition I would have remitted the application to the respondent to obtain an up-to-date assessment from a specialist who is an orthopaedic surgeon or occupational physician.

29. There certainly is evidence that the applicant has difficulties which are attributable to his left leg condition. The latest report from Dr Catton documents that he has a severe limp and falls over every night. I rely upon the specialist assessment of Dr Dooley and Dr Haynes who consider that the head injury of the applicant, which is not an accepted condition, has caused his incapacity of the left leg.

30. I have concluded that compensation is not payable to the applicant under s 24 and s 27 of the Act. The respondent has submitted at [40] of their Statement of Facts, Issues and Contentions dated 7 July 2015 that:

    … even if compensation as payable under s 24 and s 27 of the SRC Act, having made an election under ss 45(1) of the SRC Act to pursue an action for damages against the Commonwealth, the Applicant has irrevocably lost the entitlement to pursue a claim under s 24 and s27 of the SRC Act, because of the application of ss 45(3) of the SRC Act which states that such an election is irrevocable.

31. I note that some commentators have observed that the decision of the High Court in Canute v Comcare [2006] HCA 47 casted doubt on the extent to which an election would prevent a further claim for impairment resulting from an injury.[27] Where there is no cogent residual evidence that there is a deterioration of the permanent impairment it is unnecessary to consider the submission of the respondent that the applicant has irrevocably lost the entitlement to pursue a claim under ss 24 and 27 of the Act, because of the operation of s 45(3) of the Act.[28]

    [27] Sutherland P, Ballard J and Anforth A, Annotated Safety, Rehabilitation and Compensation Act 1988 (10th ed, The Federation Press, 2014), p. 421.

    [28] See Re Russell and Comcare (2000) 63 ALD 734.

    DECISION

32. I affirm the decision under review.

I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of

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

Associate

Dated 15 March 2016

Date of hearing

5 November 2015

Applicant

In person

Solicitors for the Respondent

Counsel for the Respondent

Ms M Gostylla, Australian Government Solicitor

Mr A Dillon