Cahill and Comcare
[2011] AATA 734
•20 October 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION
[2011] AATA 734
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/4288
GENERAL ADMINISTRATIVE DIVISION ) Re Timothy CAHILL Applicant
And
Comcare
Respondent
DECISION
Tribunal Mr R P Handley, Deputy President Date20 October 2011
PlaceSydney
Decision The Tribunal sets aside the decision under review and substitutes the following decision:
1. Mr Cahill is entitled to be paid lump sum compensation pursuant to s 24 of the Safety Rehabilitation and Compensation Act 1988 for the condition vertigo, in respect of which he has an agreed degree of permanent impairment of 10%.
2. Comcare is to pay Mr Cahill’s costs as agreed or assessed.
......................[sgd]...................
Mr R P Handley
Deputy President
CATCHWORDS
COMPENSATION – permanent impairment and loss – whether impairment permanent on date of injury – application of Compensation (Commonwealth Government Employees) Act 1971 – injury not permanent until after commencement of Safety Rehabilitation and Compensation Act 1988 – decision under review set aside
RELEVANT ACTS
Safety Rehabilitation and Compensation Act 1988: ss 4, 5, 24, 25, 124
Compensation (Commonwealth Government Employees) Act 1971: s 39
CITATIONS
Comcare v Levett (1995) 60 FCR 14; (1995) 38 ALD 518; (1995) 131 ALR 645; (1995) 22 AAR 154
Filla v Comcare (2001) 115 FCR 144; (2001) 34 AAR 293; [2001] FCA 964
Comcare v Filla [2002] FCAFC 61; (2002) 115 FCR 163; (2002) 67 ALD 24; (2002) 34 AAR 312; [2002] FCA 286
Re Johnston and Military Rehabilitation and Compensation Commission [2011] AATA 443
OTHER AUTHORITIES
Comcare Guide to the Assessment of the Degree of Permanent Impairment (2nd edn, 2005)
Andersson and Cocchiarella (eds) AMA Guides to the Evaluation of Permanent Impairment (5th edn)
REASONS FOR DECISION
20 October 2011 Mr R P Handley, Deputy President 1. Mr Cahill has applied for the review of a decision of Comcare refusing his claim for workers compensation for permanent impairment in respect of the condition vertigo. For the reasons given below I have determined that the Comcare decision should be set aside.
Background
2. The Applicant, Mr Cahill was born in 1943 and is aged 67. On 20 April 1983, he commenced employment as a rigger at the Garden Island Dockyard in Sydney. While on his way to work on 27 April 1983, Mr Cahill slipped and fell injuring his right thumb, neck, and shoulders. On 3 May 1983, he lodged a claim for workers compensation for injured right thumb, neck, shoulders and ulcer on leg. Mr Cahill provided a medical certificate from his local doctor, Dr W B Bartlett, in support of his claim. Dr Bartlett issued Mr Cahill with a medical certificate on 27 April 1983 stating that he was unfit for work until 4 May 1983 because of a leg ulcer. On 3 May 1983, Dr Bartlett issued Mr Cahill with a certificate stating that he was unfit for work from 3 May 1983 to 15 May 1983 because he was suffering from “? dislocated thumb, recurrence of [leg] ulcer & injured shoulder – due to fall on way to work 27/4/83”. Dr Bartlett issued further medical certificates for Mr Cahill in respect of the same conditions.
3. On 18 May 1983, the Commissioner for Employees’ Compensation admitted liability to pay compensation to Mr Cahill in respect of the ulcer in his right leg and a sprained right thumb for the period 27 April 1983 to 20 May 1983. The Commissioner also admitted liability for Mr Cahill’s neck and shoulder injuries arising out of the same incident although it is now not clear when this occurred. On 7 July 1983, Mr Cahill lodged a further claim for workers compensation for a recurrence of his right shoulder and neck injury supported by a medical certificate issued by Dr Bartlett on the previous day.
4. On 10 August 1983, Mr Cahill was discharged from work at the Garden Island Dockyard. Dr Bartlett issued further certificates in respect of the same injuries covering the period to 15 September 1983 and beyond. Dr Bartlett referred Mr Cahill to a neurologist, Dr R Garrick, for further treatment. In a report dated 30 September 1983, Dr Garrick noted that Mr Cahill was suffering from dizziness on sudden posture changes. During this period, Mr Cahill also had physiotherapy for his shoulders and neck. Later medical reports refer to Mr Cahill suffering from vertigo and post-concussion syndrome. Mr Cahill’s last day at work was 7 November 1983.
5. In February 1987, Mr Cahill’s solicitors sought a compensation settlement from the Commissioner for Employees’ Compensation under the provisions of the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act) which was refused.
6. Mr Cahill underwent continuing investigation and treatment from various doctors and specialists over the course of the next 20 years.
7. On 8 February 2010, Mr Cahill lodged a claim for compensation for permanent impairment for ‘post-traumatic positional vertigo’ under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). The claim included a diagnosis of atypical ‘benign positional peripheral vertigo’ (BPPV) from Professor Paul Fagan, ear nose and throat (ENT) Surgeon, dated 20 January 2010. In a report dated 26 August 2009, Professor Fagan said it was likely that the injury on 27 April 1983 was responsible for Mr Cahill’s problems and recommended further treatment. Professor Fagan said that in the absence of successful treatment, it was unlikely that Mr Cahill’s condition would improve. In a further report dated 17 December 2009, Professor Fagan noted that Mr Cahill’s response to physiotherapy had plateaued, his condition was stable and his impairment permanent.
8. On 5 June 2010, Comcare denied liability to pay compensation for permanent impairment for vertigo. The delegate said she was satisfied that the condition became permanent before 1 December 1988 so that any claim for compensation for permanent impairment had to be considered under the provisions of the 1971 Act then in force. However, the relevant section of that Act, s 39, did not include vertigo among the conditions attracting the payment of compensation for permanent impairment. Thus, pursuant to s 124(3)(b)(iii) of the SRC Act, Mr Cahill had no entitlement to compensation for permanent impairment under s 24 of the SRC Act.
9. Mr Cahill requested a reconsideration of this decision. However, after a review by another delegate the decision was affirmed and, on 6 October 2010, Mr Cahill sought another review by the Tribunal.
The Relevant Legislation
10. The currently applicable legislation in respect of claims for workers compensation by, amongst others, Commonwealth employees is the SRC Act. The relevant provisions took effect on 1 December 1988. Section 24(1) provides that “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”. However, pursuant to s 124(3) a person is not entitled to receive compensation under s 24 (or s 25) “in respect of a permanent impairment” if either the employee has received compensation of a lump sum in respect of that impairment, or, relevantly, “the person was not entitled to receive lump sum compensation in respect of that impairment” under the 1971 Act in force when the impairment occurred. In Comcare v Levett (1995) 60 FCR 14, the Full Federal Court said, at 18 [17]:
Section 124(3) is intended to render s 24 inapplicable to a permanent impairment that occurred while the 1971 Act was in force if either the employee had received a lump sum, or was not entitled to receive a lump sum for that permanent impairment.
11. The Court emphasised that the pre-SRC Act impairment must have been a permanent one for s 124(3) to apply. Thus, in this case, while Mr Cahill may have suffered an impairment before the relevant provisions of the SRC Act came into force on 1 December 1988, that impairment must have been a permanent one for s 124(3) of the SRC Act to apply and disentitle him to the payment of compensation under the SRC Act.
12. The word ‘permanent’ is defined in s 4(1) of the SRC Act as meaning “likely to continue indefinitely”. (An identical definition appeared in s 5(1) of the 1971 Act.) Section 24(2) states:
(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.
13. Section 39 of the 1971 Act provided an entitlement to compensation in respect of an injury where that injury resulted in certain ‘permanent’ losses of parts or functions of the body, such as the loss of hearing or the loss of an arm. Vertigo is not such a loss. Moreover, s 39(14) provided that an amount of compensation “is not payable in respect of an injury so long as the employee is, or is likely to become, totally incapacitated for work where the incapacity for work results or, if it occurs, will result, in whole or in part from that injury”.
14. The principal issue in this case whether Mr Cahill’s vertigo became permanent before the 1971 Act was repealed on 1 December 1988.
Mr Cahill’s Evidence
15. Mr Cahill gave evidence that he was injured when he was walking to work on 27 April 1983 when some paving gave way and he fell, cracking his head and injuring his neck, shoulders and hand. He was unconscious for a while but managed to get up by himself and went to see his doctor, who was five minutes walk away. Mr Cahill said he felt “pretty rough” at the time, experiencing aches and pains, but he does not remember whether he experienced giddiness immediately. However, he also said he began to experience giddiness virtually straight away, having never previously experienced such a problem.
16. Mr Cahill said his local doctor did some tests and sent him to see a neurologist, Dr Garrick, who prescribed pills which helped him with his balance. The dizziness Mr Cahill had begun to experience was intermittent, mainly on getting up in the morning. During the day, he was mostly “OK”, but although he might be OK for two or three days, he would suddenly begin to “spin out” and as a result fell on quite a few occasions.
17. Mr Cahill said he did go back to work a few times after the accident but he was put off. He also applied to go back on light duties but the Department of Defence refused because of the danger arising from his having dizzy spells. Thus, he has never returned to work.
18. Mr Cahill was asked about the treatment he had at that time. He said Dr Garrick never suggested any other treatment, such as the manoeuvring of his neck or referral to an ENT specialist. Mr Cahill did not think to seek a referral elsewhere. He trusted Dr Garrick and received some benefit from the pills he prescribed but after a while Mr Cahill stopped seeing him. It took a while for the pills to run out because he only took them when he had a lot of giddiness. Mr Cahill also saw a psychiatrist, Dr Phillips, at that time, mainly for family problems partly caused by his not being able to work. His not being able to work had a devastating effect on his family life as a result of the cut in his wages and the need to support four children. His wife went out to work and he looked after their children.
19. Mr Cahill said until he saw Professor Fagan, he does not remember any of the specialists he saw ever having mentioned other available treatment, except Dr Scoppa who mentioned the possibility of surgery. Since this was in November 2002, Mr Cahill thought it “a bit late” by then. Professor Fagan, whom he saw in August 2009 on a referral from his lawyers, suggested that Mr Cahill have physiotherapy and referred him to a physiotherapist, Kathee De Lapp. Ms De Lapp performed the Epley manoeuvre. There was no effect straight away but when he started doing the exercises Ms De Lapp recommended that he do at home, especially in the morning when getting to his feet, “it really helped”. The exercises do not stop the vertigo recurring – he still gets dizzy spells - but help him to control the symptoms. Mr Cahill said he does not take any medication. He has learned to handle his condition and not get too stressed. He has to think before he does things. He drives very little. He has to be careful climbing stairs and his son has assisted in paying to have a lift installed in Mr Cahill’s house.
20. Mr Cahill said the physiotherapy he had on his neck and shoulders in the period immediately after the accident “didn’t do much”. He had little pads stuck on him. Apart from this, he does not remember having any other physiotherapy before he saw Ms De Lapp.
21. Mr Cahill said he has not had any further treatment since seeing Ms De Lapp. Given his age, it is too late for surgery. If he had been offered surgery “years ago”, he would have taken it.
The Medical Evidence
22. The Tribunal has been provided with medical evidence including medical certificates from Mr Cahill’s treating doctors and medical reports dating from the time of his injury on 27 April 1983. The first reference to Mr Cahill suffering from dizziness appears to be in a report from his treating doctor, Dr WB Bartlett, dated 30 September 1983. Initially, Mr Cahill’s medical certificates usually refer him being unfit for work because of a neck injury. However, in a medical certificate dated 7 November 1983 and in later certificates, there is reference to his suffering from “post concussion syndrome”. ‘Persistent dizziness’ is referred to in a certificate dated 3 January 1984 and ‘vertigo’ in a certificate dated 12 March 1986.
23. Mr Cahill was examined by a significant number of specialists from September 1983. Various investigations were undertaken including several electronystagmograms (ENGs) and treatment proposed. For example, Dr Raymond Garrick, neurologist, in a report dated 20 October 1983, noted that Mr Cahill had “completed his physiotherapy and reports that this did not help very much”. However, Dr Garrick said he expected that a gradual improvement would occur with medication. In a report dated 18 October 1984, Dr Garrick said he had “ordered a further ENG to check on the extent of his vestibular problems”. In his next report dated 12 December 1984, Dr Garrick said Mr Cahill “reports significant improvement in his vertigo which has settled to the point of having only minor postural dizziness not requiring medication at present”. Dr Garrick said the repeat ENG showed “persisting changes of a moderately severe left vestibular lesion”, and that “Although his symptoms are quiescent, I think his ENG abnormality will be long standing and he may be prone to further bouts of dizziness”. In a report dated 20 August 1985, Dr Garrick noted that because Mr Cahill’s symptoms had previously subsided with sedation, “it is worthwhile giving him a trial of Amitriptyline which may improve his symptoms quite well”.
24. On 16 December 1988, Comcare referred Mr Cahill to Dr J Allsop, surgeon, for assessment. In a report dated 23 January 1989, Dr Allsop diagnosed positional vertigo which he said was:
probably due to the injury which occurred on 27-4-83. I suspect that there has been considerable improvement since the injury as is usually the case. Mr Cahill may however be still subject to a mild degree of vertigo on appropriate positioning of the head.
25. Dr Allsop also said that he expected that “Mr Cahill will continue to have mild vertigo, though this could disappear within a matter of some years”. He noted that “This disorder is within the sphere of the ENT surgeon so that if it is desired to confirm these findings up to date tests carried out by such a person may be desirable.” Dr Allsop repeated this comment in a report dated 15 March 1990, in which he said he was not aware whether “The question of surgery for a possible labyrinthine fistula may or may not have been addressed”, and added, “I would stress again that expert ear nose and throat opinion be obtained”.
26. Other specialists to whom Mr Cahill was referred – Dr JH Lancken, ENT surgeon (report dated 17 July 1991), Dr V Bulteau, ENT surgeon (15 March 1993), and Dr J Scoppa, ENT surgeon (report dated 4 December 2002), also suggested further investigations and the possibility of treatment.
27. Mr Cahill relies, in particular, on the evidence of Professor Fagan who has provided a number of reports and also gave evidence by conference telephone at the hearing. In his report dated 26 August 2009, Professor Fagan noted further treatment was available to Mr Cahill for his “vertigo/ataxia”. He suggested “the Epily (sic – Epley) manoeuvre for particle repositioning which could help the positional rotatory element of his problems” and, at the same time, “vestibular rehabilitation”. He also recommended a further Electronystagmogram (ENG) to obtain a further assessment of Mr Cahill’s inner ear on each side. Mr Cahill was treated by a physiotherapist at the Hearing and Balance Centre, Ms De Lapp, who performed the Epley manoeuvre on Mr Cahill and provided a report dated 22 September 2009. Professor Fagan said Ms De Lapp is very experienced in performing the Epley manoeuvre and very good at it.
28. Professor Fagan said he has practised as an ENT surgeon for nearly 30 years and now practises exclusively as an otologist. He said the pathophysiological basis of BPPV is the displacement of otoliths in the inner ear. If displaced, otoliths can end up in the wrong part of the inner ear and consequently false information is sent to the brain which results in giddiness. The Epley manoeuvre is designed to get the otoliths back to where they belong and is performed by a clinician turning the patient’s head to the left or the right when the patient is lying down. With BPPV, this is the only effective treatment and Professor Fagan said the success rate is “very high” – near 100% - and there are very few failures. As a result of the use of this treatment, he has not performed any surgery for BPPV for at least 15 years.
29. In a report dated 17 December 2009, Professor Fagan noted that Mr Cahill’s response to physiotherapy had plateaued, his condition was stable and his impairment permanent. At the hearing, he said Mr Cahill told him that there was an improvement in his condition after the Epley manoeuvre had been performed. There is no objective test to measure any such improvement. In a further report dated 14 July 2011, Professor Fagan said that it was Mr Cahill’s 1983 injury that caused his vertigo. Professor Fagan said that since there had been “some objective improvement after treatment, I believe that stability and if you like, permanency, was established towards the end of 2009”. He disagreed with the opinion of Dr John Walker, ENT surgeon, who examined Mr Cahill for Comcare, that Mr Cahill’s impairment “became permanent as of the date of injury 27 April 1983”.
30. In answer to a question at the hearing, Professor Fagan agreed that the Epley manoeuvre was developed by Dr John Epley and first described in 1980. He said the treatment has been used in Australia for at least 25 years. In the years 1986 to 1988, it was well known at St Vincent's Hospital in Sydney where he works but that knowledge was probably confined to specialist circles. Not a lot would have been known of the treatment by neurologists in the 1980s. While general practitioners might not have initially been aware of the treatment, they would have been aware of it for the last 10 to 15 years. Initially, the treatment was performed by ENT specialists and less often by physiotherapists. Even now, there are only a limited number of physiotherapists who are skilled in performing the procedure. Ms De Lapp is one of these and Professor Fagan refers patients to her for treatment.
31. Professor Fagan said that on the balance of probabilities (which he understood to be a greater than 50% chance) if the Epley manoeuvre been performed on Mr Cahill prior to 1 December 1988 this would have resulted in an improvement of his condition. However, as with most procedures in medicine, there is no guarantee that the manoeuvre would have resulted in a cure. In the absence of treatment, it is likely that he would continue experiencing symptoms of BPPV, as he did.
32. Dr Walker expressed his opinion that Mr Cahill’s condition became permanent on 27 April 1983 in a report dated 15 April 2011. He diagnosed “Persistent vertigo probably due to benign positional vertigo – secondary to head injury”. Dr Walker commented that Mr Cahill’s “recovery period from presumed benign positional vertigo is much more prolonged than usual”. In answer to a question from Comcare’s solicitors about Mr Cahill’s prognosis, Dr Walker said:
The usual prognosis for benign positional vertigo is gradual resolution of the condition. As noted above this is taking much longer than usual. Other reports indicate there is some evidence of permanent vestibular damage.
33. In a follow up report dated 12 May 2011, and in answer to a question from Comcare’s solicitors about the permanency of Mr Cahill’s impairment, Dr Walker said:
Because of the history of continuing problems it [when the impairment became permanent] should be dated from the date of injury. It should be considered that Mr Cahill’s impairment became permanent on the date of injury – 27 April 1983.
34. In the light of Dr Walker’s recent ongoing illness, Comcare asked Dr David Matison, ENT Surgeon, to review the file in relation to this matter and provide a supplementary report addressing some further questions. In answer to a question as to when Mr Cahill’s impairment became of a kind that was likely to continue on an indefinite basis, Dr Matison said, in a report dated 25 July 2011:
It is unusual for post-concussional positional vertigo to persist for the length of time it has in this case. I cannot find from the reports provided to me any mention of definitive treatment having been carried out for the vertigo and as it is now almost 30 years from its onset, one must regard it on balance as being most likely to continue indefinitely from the date of injury namely 27 April 1983.
35. Dr Matison also gave evidence at the hearing by conference telephone. He acknowledged that he had not examined Mr Cahill but had only conducted a review of Dr Walker’s and other reports including those of Professor Fagan. He said he agreed with Dr Walker’s opinion that most cases of BPPV resolve over time. If spontaneous resolution had not occurred within about five to six years, one would have to assume that the condition was permanent.
36. Dr Matison was asked about the Epley manoeuvre. He said this is regarded as an essential treatment in cases of BPPV and is the first and effectively the only “port of call”. He said the overall success rate for this treatment is “high”. Dr Matison therefore agreed that the Epley manoeuvre is reasonable rehabilitative treatment for BPPV and if Mr Cahill had not been provided with this treatment, not all reasonable rehabilitative treatment would have been given. He agreed that in Mr Cahill’s case, by 1986 to 1988, it would have been reasonable to expect that an ENT specialist would have tried treating him with the Epley manoeuvre in order to relieve his symptoms. From the mid-1980s, the Epley manoeuvre was the standard treatment for BPPV, although in 1983 it might not have been. Dr Matison said if, hypothetically, Mr Cahill had presented himself at Dr Matison’s consulting rooms on 30 November 1988 and had not undergone the Epley manoeuvre, Dr Matison would have considered that not all reasonable rehabilitative treatment had been undertaken. He acknowledged that, having considered the matter, he had changed his view on the issue of permanency expressed in his report dated 25 July 2011.
Discussion
37. As noted above, the principal issue in this case is whether what I will loosely refer to as Mr Cahill’s ‘vertigo’ became ‘permanent’, meaning “likely to continue indefinitely”, before the 1971 Act was repealed on 1 December 1988. When determining the question of permanency, s 24(2) of the SRC Act requires a consideration of the duration of the impairment, the likelihood of improvement in the employee’s condition and whether the employee has undertaken all reasonable rehabilitative treatment for the impairment. These are questions of fact for the Tribunal: Filla v Comcare (2001) 115 FCR 144, at 157 [55] ff.
38. Mr Grey, for Mr Cahill, submitted that the Epley manoeuvre was critical to Mr Cahill’s treatment. On the medical evidence, by the mid-1980s ENT specialists would have been expected to know of this treatment. It was rehabilitation treatment with a high rate of success. Thus, in the period before 1 December 1988, when considering the question of permanency, one would expect a person with BPPV to have had such treatment. In the absence of such treatment, it is not possible to say that all reasonable rehabilitative treatment had been undertaken. In Mr Cahill’s case, he was never given the option of this treatment and, indeed, was unaware of it. Not all reasonable rehabilitation treatment had been undertaken and his condition cannot be said to have become permanent before 1 December 1988. Mr Grey referred to the discussion of reasonable rehabilitative treatment in Filla v Comcare (2001) 115 FCR 144 and, on appeal, in Comcare v Filla (2002) 115 FCR 163.
39. Mr Grey noted Dr Matison’s evidence that in Mr Cahill’s case, the period within which one would expect that his BPPV might resolve spontaneously was five to six years, meaning a period ending between approximately April 1988 and April 1989, the latter date being after the relevant provisions of the SRC Act came into effect on 1 December 1988.
40. Miss Henderson, for Comcare, noted that s 24(2) of the SRC Act requires the decision-maker “to have regard to”, amongst other matters, whether reasonable rehabilitative treatment has been undertaken, meaning that this must be considered in determining when the impairment became permanent. She said s 24(2)(c) was not a compulsory gateway through which the employee must pass before the issue of permanency is considered. With regard to s 124(3), Ms Henderson said that Comcare preferred the interpretation given to the preliminary words of that subsection by Deputy President Forgie in Re Johnston and Military Rehabilitation and Compensation [2011] AATA 443 (Johnston) to the effect, relevantly, that while the impairment must have occurred before 1 December 1988, it need not have become permanent before that date. She acknowledged that DP Forgie’s interpretation appears to be contrary to the decision of the Full Federal Court in Comcare v Levett (1995) 60 FCR 14 which, Mr Grey submitted, binds the Tribunal.
41. In my view, Mr Grey is correct and I am bound by the decision of the Full Federal Court in Comcare v Levett. In its decision, at [17], the Court emphasised that the SRC Act “is beneficial legislation that should be construed liberally”, and that s 124(3) “is intended to render s 24 inapplicable to a permanent impairment that occurred while the 1971 Act was in force”. Thus, while I respect DP Forgie’s analysis in Johnston, I do not agree with her interpretation of the provision.
42. The evidence indicates that while the vertigo experienced by Mr Cahill has been ongoing since the time of his injury, there has been a history of further investigations and treatment, and suggestions for further investigations and treatment continuing until late 2009. Regrettably, any treatment Mr Cahill had did not, until 2009, include treatment using the Epley manoeuvre which according to the evidence of both Professor Fagan and Dr Matison has been the standard treatment for BPPV since the mid-1980s and for which the success rate is high.
43. After the injury on 27 April 1983, Mr Cahill was referred by his general practitioner to a neurologist for treatment and was not seen by an ENT surgeon until July 1991 when he was referred by Comcare for assessment by Dr Lancken. Even then, Dr Lancken made no mention of Epley manoeuvre treatment and nor did Dr Bulteau to whom Mr Cahill was referred by Comcare in March 1993. It was apparently not until Mr Cahill was referred by Comcare to Dr Scoppa for assessment in November 2002 that there is a mention of such treatment in the reports. In his report dated 4 December 2002, Dr Scoppa recommended that Mr Cahill “be assessed by a treating ENT surgeon with a view to carrying out an Epley repositioning manoeuvre and also with a view to considering surgery if this fails”. While Mr Cahill recalled surgery having been suggested, he thought it was “a bit late by then”. There appears to have been no further discussion of treatment using the Epley manoeuvre until this was suggested by Professor Fagan in August 2009.
44. With regard to when Mr Cahill’s impairment became permanent, I do not find Dr Walker’s opinion on the issue of permanency convincing. The fact that Mr Cahill has a history of continuing problems since the time of injury does not, in my view, indicate that the impairment became permanent at the time of injury. I note Dr Matison’s evidence at the hearing that because Mr Cahill had not been treated using the Epley manoeuvre before 1 December 1988, he had not undertaken all reasonable rehabilitative treatment. Moreover, since Dr Matison’s evidence was that BPPV might, in any event, resolve spontaneously within five to six years after the injury, in Mr Cahill’s case BPPV could not be said to be “likely to continue indefinitely” until early 1989, after the SRC Act had taken effect.
45. Dr Matison and Professor Fagan agreed that the Epley manoeuvre was the standard treatment for BPPV from about the mid-1980s with a high success rate. In his report dated 14 July 2011, Professor Fagan expressed the opinion that Mr Cahill’s vertigo became permanent towards the end of 2009 when his condition plateaued after treatment using the Epley manoeuvre. However, given that by this time over 26 years had passed since the time of the injury and, while Mr Cahill’s evidence is that there has been some improvement in his condition since undergoing the Epley manoeuvre, he still suffers from vertigo, I am not satisfied that permanency should be attributed to late 2009.
46. In my view, it is not possible on the evidence to fix on any particular date as to when Mr Cahill’s condition became permanent. However, the evidence of Professor Fagan and Dr Matison is sufficiently clear that permanency, meaning “likely to continue indefinitely”, did not occur before 1 December 1988. Mr Cahill’s condition might have resolved spontaneously in the period up until early 1989 and, in any event, he had not at that time undertaken all reasonable rehabilitative treatment, namely the Epley manoeuvre. I therefore find that Mr Cahill’s vertigo became permanent after the SRC Act took effect on 1 December 1988.
47. Having so determined, it follows that s 124(3) of the SRC Act does not disentitle Mr Cahill from receiving compensation under s 24. There is no dispute that pursuant to Table 12.5.5 of the second edition of the Guide to the Assessment of the Degree of Permanent Impairment, or Table 11.4 of the fifth edition of the AMA Guides, Mr Cahill has a 10% impairment attributable to his vertigo.
Decision
48. The Tribunal sets aside the decision under review and substitutes the following decision:
1. Mr Cahill is entitled to be paid lump sum compensation pursuant to s 24 of the Safety Rehabilitation and Compensation Act 1988 for the condition vertigo, in respect of which he has an agreed degree of permanent impairment of 10%.
2. Comcare is to pay Mr Cahill’s costs as agreed or assessed.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President.
Signed:........[sgd].......................................................................
AssociateDates of Hearing 12 and 13 October 2011
Date of Decision 20 October 2011
Counsel for the Applicant L T Grey
Solicitor for the Applicant Capital Lawyers
Counsel for the Respondent R M Henderson
Solicitor for the Respondent Sparke Helmore
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