Charman and Comcare - [2002] AATA 632

DECISION AND REASONS FOR DECISION [2002] AATA 632

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2000/331

GENERAL ADMINISTRATIVE DIVISION       )
           Re      ALLEN CHARMAN
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr G A Mowbray

Date30 July 2002
PlaceCanberra

Decision      The Tribunal affirms the decision under review, being Comcare's decision of 31 August 2000.
  ..............................................
  Member
CATCHWORDS
COMPENSATION – permanent impairment – whether impairment attributable to compensable condition – whether impairment permanent

Compensation (Commonwealth Government Employees) Act 1971, s 39
Safety, Rehabilitation and Compensation Act 1988, ss 4(1), 14(1), 24, 27, 124

Brennan v Comcare (1994) 50 FCR 555; 122 ALR 615; 19 AAR 542
Comcare v Levett (1995) 60 FCR 14; 131 ALR 645; 38 ALD 518; 22 AAR 154
Department of Defence v West (1998) 85 FCR 491; 156 ALR 651; 50 ALD 712; 27 AAR 550
Blackman v Australian Telecommunications Corporation (1990) 12 AAR 11
Comcare v Bozicevic (1997) 74 FCR 260; 144 ALR 132; 25 AAR 98
Johnston v Commonwealth (1982) 150 CLR 331

REASONS FOR DECISION

30 July 2002 Mr G A Mowbray

This is an application by Mr Allen Richard Charman for review of a decision by Comcare on 31 August 2000 to affirm a previous determination on 8 May 2000 that he was not entitled to receive compensation for permanent impairment.
At the hearing on 5 and 6 November 2001, counsel for Mr Charman was Ms Jane Godtschalk and counsel for Comcare was Mr Damien O'Donovan.
Background
Mr Charman was born on 30 June 1955. In 1982 he was involved in a motorcycle accident, which eventually led to his right leg being amputated above the knee in 1983 and a prosthesis being fitted later that year.
On 4 June 1986 Mr Charman was working at the Department of Social Security when he tripped over a computer cable and fell. He subsequently made a compensation claim for an injury to his lower back, which was accepted and for which Comcare has not ceased liability. He returned to work on a part-time basis late in 1986, but never resumed full-time hours. He ceased work altogether in May 1998.
On 21 June 1999 Mr Charman completed an Application for Permanent Impairment, although it was not forwarded to Comcare by Mr Charman's solicitors until 20 September 1999. On 8 May 2000 Comcare determined that Mr Charman was not entitled to compensation for permanent impairment, principally because it was decided his condition had become permanent prior to 1 December 1988. This determination makes reference to the provisions of both the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act") and the Safety, Rehabilitation and Compensation Act 1988 ("the 1988 Act").
Mr Charman requested a reconsideration of this determination, on the basis that his condition had deteriorated significantly since 1 December 1988. The determination was affirmed by an Independent Review Officer (IRO) on 31 August 2000. Mr Charman lodged an application with the Tribunal on 4 September 2000 for review of the IRO's decision.
Legislation
Section 39 of the 1971 Act relevantly provides
"39 Compensation payable in respect of certain losses
…
(3) Subject to this section, where an injury to an employee, not being an injury resulting in a loss in relation to which sub-section (1) applies, results in a loss specified in the next succeeding sub-section, the compensation payable in respect of that injury is an amount equal to such percentage of $28,000 or, if an amount is prescribed for the purposes of sub-section (1), of that amount as is specified in the next succeeding sub-section in relation to that loss, and that compensation is payable to the employee.
(4) The losses and percentages referred to in the last preceding subsection are the losses and percentages set out in the following table:
--------------------------------------------------------------------------------
Nature of Loss  Percentage
Loss of, or total loss of sight of, an eye  40
Total loss of hearing  70
Total loss of power of speech  70
Loss of arm at or above elbow  80
Loss of arm below elbow, loss of hand or loss
of thumb and four fingers of the one hand               70
Loss of thumb  30
Loss of forefinger  20
Loss of middle finger  16
Loss of ring finger  14
Loss of little finger  13
Total loss of movement of joint of thumb  14
Loss of distal phalanx or joint of thumb  16
Loss of portion of terminal segment of thumb involving
          one-third of its flexor surface without loss of
distal phalanx or joint  14
Loss of two phalanges or joints of forefinger  12
Loss of two phalanges or joints of middle or ring finger        11
Loss of two phalanges or joints of little finger  10
Loss of distal phalanx or joint of forefinger  10
Loss of distal phalanx or joint of other finger  8
Loss of leg at or above knee  75
Loss of leg below knee  65
Loss of foot  60
Loss of great toe  20
Loss of any other toe  8
Loss of two phalanges or joints of any other toe                  7
Loss of phalanx or joint of great toe  10
Loss of phalanx or joint of any other toe  6
--------------------------------------------------------------------------------
…
(11) The compensation payable under this Act in respect of an injury
resulting in partial loss by an employee of the efficient use of a part of the
body specified in sub-section (4) or of the efficient use of such a part of
the body for the purposes of the employment of the employee immediately before
the injury, not being a loss referred to in sub-section (6), (7), (9) or (10),
is such percentage of the amount of compensation that would be payable under
sub-section (3) in respect of an injury resulting in the loss by the employee
of that part of the body as is
(a) the percentage by which the injury resulted in the efficient use, immediately before the injury, of that part of the body being reduced; or
(b) the percentage by which the injury resulted in the efficient use, immediately before the injury, of that part of the body for the purposes of the employment of the employee immediately before the injury being reduced,
whichever is the greater percentage.
(12) A reference in this section to the loss by an employee of a specified
part of the body shall be read as including a reference to
(a) the total loss of the efficient use of that part of the body; and
(b) the total loss of the efficient use of that part of the body for the purposes of his employment immediately before the injury that resulted in the loss.
…
(14) An amount of compensation referred to in this section 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.
(15) In this section, "loss" means a permanent loss."
The relevant provisions of the 1988 Act are
"4 Interpretation
(1) In this Act, unless the contrary intention appears:
…
"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.
…
"permanent" means likely to continue indefinitely."
"14 Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
…"
"24 Compensation for injuries resulting in permanent impairment
(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.
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(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.
…"
"124 Application of Act to pre-existing injuries
(1) Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.
(1a) Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.
(2) A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:
(a) where the injury, loss or damage was suffered before the commencement of the 1930 Act—under the 1912 Act;
(b) where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act—under the 1930 Act as in force when the injury, loss or damage was suffered; or
(c) in any other case—under the 1971 Act as in force when the injury, loss or damage was suffered.
(3) A person is not entitled to compensation under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing date, if:
(a) the person received compensation of a lump sum in respect of that impairment or death under the 1912 Act, the 1930 Act or the 1971 Act; or
(b) the person was not entitled to receive compensation of a lump sum in respect of that impairment or death:
(i) where the impairment or death occurred before the commencement of the 1930 Act—under the 1912 Act;
(ii) where the impairment or death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act—under the 1930 Act as in force when the impairment or death occurred; or
(iii) in any other case—under the 1971 Act as in force when the impairment or death occurred.
(4) The amount of compensation (if any) that a person is, by virtue of this section, entitled to receive under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing day, shall be the same as the amount of the compensation that would have been payable to that person, if this Act had not been enacted, under:
(a) where the impairment or death occurred before the commencement of the 1930 Act—the 1912 Act;
(b) where the impairment or death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act—the 1930 Act as in force when the impairment or death occurred; or
(c) in any other case—the 1971 Act as in force when the impairment or death occurred.
…"

Documentary Evidence

The Tribunal had before it the following documents which were taken into evidence

Exhibit T1-T135 – the documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975
Exhibit A1 – Applicant's Amended Statement of Facts and Contentions dated 31 October 2001
Exhibit A2 – Applicant's original Statement of Facts and Contentions dated 27 March 2001
Exhibit A3 – medical report from Dr John Corry dated 20 December 2000
Exhibit A4 – clinical notes from Southside 24 hour clinic covering the period 21 September 1990 to 11 July 1995
Exhibit A5 – medical summary and progress notes from Dr Chenault Lee covering the period 31 August 1995 to 17 April 2000
Exhibit A6 – medical report from Dr John Corry dated 14 October 1999
Exhibit R1 – Respondent's Statement of Facts and Contentions dated 27 March 2001
Exhibit R2 – medical report from Dr Dwight Dowda dated 21 December 2000
Exhibit R3 – medical report from Dr Geoffrey Speldewinde to Dr Lee dated 15 December 1999
Exhibit R4 – medical report from Dr Caspary dated 20 October 1998
Exhibit R5 – Woden Valley Hospital physiotherapy request and report covering the period 20 December 1983 to 8 March 1984
Exhibit R6 – radiological report by Dr Davis dated 19 February 1985

Issues before the Tribunal

As has already been indicated liability was accepted in 1986 for an injury to Mr Charman's lower back. The matter before the Tribunal relates to whether that injury has led to permanent impairment. This question is more complex than it might first appear. There are several distinct issues that need to be addressed, including

whether there is more than one type of impairment. Mr Charman claims that his compensable injury has led to both back and leg impairment
the issue of causation, in view of Mr Charman's pre-existing amputation of his right leg
if any impairment is attributable to the compensable injury, whether that impairment is permanent
if any impairment is found to be permanent, at what date did it become permanent, and what is the effect of the transitional provisions of the 1988 Act.

Mr Charman's Evidence

In his oral evidence to the Tribunal, Mr Charman gave background information about the consequences of his motorcycle accident on 20 June 1982. He had injured his right leg and right shoulder. His right leg was amputated in June 1983, after which he was on crutches until a prosthesis was fitted late in 1983. He had problems learning to walk with the prosthesis, and experienced muscle pain on the right hand side for a few months while his muscles were strengthening.
During 1984 Mr Charman began part-time work with the Department of Social Security, progressing to full-time work in approximately November 1985. Thus he was working full-time when he tripped over computer wires on 4 June 1986. Mr Charman was unable to stop himself from falling forward onto his face. He felt a tear on the left side of his lumbar region, a feeling which he had experienced ever since. He also felt pain down his left leg.
Mr Charman eventually returned to work in December 1986, but for only four hours per day and on clerical duties rather than his previous counter work. He gave evidence that at that time he would shift between sitting and standing after a period of time. He was able to walk up and down stairs, but acknowledged that walking both on level ground and on stairs was made more difficult by his prosthesis. He could mow his lawn with occasional rests and could put his washing on the clothesline. Lifting and carrying items was not easy, but he was able to do it.
Between 1987 and 1990 Mr Charman's medical status was reviewed on several occasions. He gave evidence that over this period his back pain, while varying in severity, was essentially the same as it was in 1986. However, by the time he was examined at Comcare's request by Dr Martin Kennedy in October 1996 (Dr Kennedy's report appears at T88) his pain was stronger and his back was becoming weaker. Mr Charman could recall having physiotherapy at around this time, but was unable to recall any details of the treatment.
At some time prior to his ceasing work altogether in May 1998, Mr Charman found that his work level was dropping. He was not achieving enough and found he could not concentrate because of pain despite taking a lot of painkillers. He gave evidence that he had ceased work because he could no longer cope with the pain which was getting worse at that time and had continued to worsen since.
Since he had stopped work, Mr Charman had experienced sciatic pain and his left foot would go to sleep. He could not walk as far as previously, could no longer use stairs and had stopped doing housework or mowing the lawn. He found it hard to get in and out of chairs and no longer played any sport.
In cross-examination Mr Charman was questioned about X-rays taken prior to his fall in 1986. He was uncertain whether he had had more than one X-ray, but was sure that an X-ray of his spine had been ordered when he was learning how to walk with his prosthesis. The purpose of that X-ray was to check for any damage, and no damage was found.
Mr Charman indicated that he had fallen regularly while learning to walk, averaging about one fall a week. He also acknowledged receiving morphine injections once or twice at that time, but explained these were for phantom pains from his right leg which were worse than his back pain and at times violent.
Mr Charman was also questioned further about his reasons for ceasing work in May 1998. He gave evidence that his marriage had broken up in late 1997/early 1998, culminating in his wife leaving in early February 1998. He had become depressed and had taken time off work for that reason. When he returned to work he was being trained for new duties, although he considered the training to be poor.
On his final day of work, Mr Charman states a supervisor informed him he was no longer performing his old responsibilities, but that he was not given any other work to do. He remained for his normal four hours and then left. Later on the same day he consulted his general practitioner, Dr Lee. Mr Charman was adamant that this appointment was in relation to back pain. He did not recall whether he had told Dr Lee of the events at work that day. In late 1997, before Mr Charman's marriage broke up, Dr Lee had referred Mr Charman to a Dr Dunlop for his back pain.
Mr Charman was also definite that his back pain was the reason he ceased work. He could not recall whom he had told about the failure to provide him with work on that day. He did not recall saying to anyone that he was sick of the way he was being treated at work.
The Medical Evidence
Dr John Corry
Dr Corry worked as a rehabilitation doctor for the Department of Social Security between the late 1970s and the mid-1980s. He saw Mr Charman after the latter commenced work with the Department. He also recalled, although not clearly, seeing Mr Charman after his fall on 4 June 1986, but did not have any record of that consultation. He examined Mr Charman on two much later occasions, in 1999 and 2000.
Dr Corry believed that there was a difference between the right sided low back pain Mr Charman had previously suffered and the left sided injury described as a result of the fall on 4 June 1986. It might still have been at the same level of his lower back, but even if that were the case there would have been some new event causing the pain to change from one side to the other.
In a report dated 15 April 1999 (T110) Dr Corry had indicated there was a good likelihood of Mr Charman being able return to his former level of work after intensive physical rehabilitation. However, in a report dated 20 December 2000 (Exhibit A3) Dr Corry concluded his prognosis was poor and his disability likely to be permanent. The reason for this change in opinion was that Mr Charman's disability had, if anything, worsened rather than improved in the interim, despite an effort at more intensive treatment. Dr Corry had therefore judged the treatment was a failure.
Based on Mr Charman's reporting of his general activities as at 1 December 1988, Dr Corry had assessed his level of impairment under Table 9.5 of Comcare's Guide to the assessment of the degree of permanent impairment ("the Guide") as about 10% at that time. Table 9.5 is headed "Limb Function – Lower Limb". Dr Corry indicated in his evidence that Mr Charman had as of December 1988 the impairments one would expect from someone with an amputated leg. Dr Corry conceded that he might not have qualified for the 10% level of impairment at that time, but was at least very close to that level. A person with an above knee amputation would have a 10% impairment almost by definition.

Dr Corry gave oral evidence, not contained in his written reports, that he believed Mr Charman's tolerance for walking distances was now restricted. As this was the major difference under Table 9.5 between the 10% and 20% impairment levels, Dr Corry considered Mr Charman's impairment was now 20%.
Again based on Mr Charman's reporting, Dr Corry assessed his impairment under Table 9.6 of the Guide ("Spine") as about 10% in December 1988. On examination in November 2000 Dr Corry assessed his current level of impairment under Table 9.6 as 20%. Mr Charman now had a grossly abnormal gait, used a walking stick and had markedly restricted lumbar spinal movements amounting to less than 50% of the normal range. There was no evidence of significant disc injury, but this was not necessary for there to be a restriction of spinal movement.
Dr Dwight Dowda
Dr Dowda had examined and assessed Mr Charman on 21 December 2000, and provided a report of the same date (Exhibit R2). He had concluded that Mr Charman was suffering a chronic mechanical irritation of the left sacroiliac joint, which was being regularly aggravated by trips and falls. The joint was also being overloaded by the posture and gait adopted by Mr Charman due to his prosthesis. Dr Dowda did not believe there was any evidence of pathology in the lumbar vertebral spine.
Dr Dowda considered the fall on 4 June 1986 probably caused an injury to the left sacroiliac joint at that time, but was simply one event in a lengthy history of ongoing insults to the joint. The regular tripping and falling described by Mr Charman, up to twelve stumbles and two actual falls per week at the time of his examination by Dr Dowda, was due to instability caused by his right leg prosthesis which was not related to work. Dr Dowda also made reference to reports from Dr Corry that Mr Charman had tripped regularly before the incident at work while learning to walk with his prosthesis. However he conceded under cross-examination that the low back pain at that earlier time was on the right side rather than the left.
Dr Dowda found it virtually impossible to state whether Mr Charman's impairment was permanent, or whether his condition was being aggravated almost weekly, or even more regularly, because of his postural instability. The level of permanent impairment could not be assessed because Mr Charman's condition had never had an opportunity to settle. It would only stabilise if Mr Charman were given an opportunity to not stumble and trip for three or four months. It was possible that if Mr Charman was able to avoid aggravations there could be an opportunity for his symptoms in the left sacroiliac region to resolve. The symptomatology appeared to have been permanent prior to 1 December 1988, but Dr Dowda was not prepared to conclude the impairment was permanent at any time.
Dr Dowda considered that assessment using the Comcare Guide was complicated by the fact that Mr Charman's non-work related impairment of right lower limb prosthesis was clearly responsible for lower limb dysfunction. Using Table 9.5 of the Guide, Mr Charman could have an impairment as high as 20% due to his right leg amputation and prosthesis alone. Indeed, he would have a 40% impairment if he were to be assessed under Table 9.3 which deals with amputations. Dr Dowda therefore believed that any impairment in the left sacroiliac joint region could not be satisfactorily assessed under Table 9.5. Using Table 9.6 was not appropriate because any impairment was not in the spine.
In addition, there had not been a deterioration in Mr Charman's impairment since December 1988. As the basis for this conclusion, Dr Dowda pointed to the lack of evidence of any deterioration in the spinal axis. This was not a progressive or structural problem. It was one where the same symptomatology had been presented due to repeated mechanical irritation.
In cross-examination Dr Dowda was questioned over a part of the history contained in his report, where he noted Mr Charman was off work for five weeks after the fall on 4 June 1986. He considered this was in keeping with the complete resolution of a musculo-ligamentous strain, a process that would take anywhere between 3-4 weeks and 3-4 months. When it was put to him that Mr Charman had in fact been off work for six months, Dr Dowda was unclear as to whether he acknowledged this would be consistent with a more serious injury
"If he was back at five weeks post-injury, I think that is sort of reasonably suggestive of a less serious or severe injury than say at six months. Nevertheless, as I said to you, we're looking at a range of things with respect to musculo-ligamentous strain, and, you know, a person can sprain an ankle and, as I say be over it in a few weeks and a person can sprain an ankle and not be over it in quite a few months. So – and that is a very open-ended thing. Unfortunately, it is not black and white in terms of 'at X point in time the person will be better'."
It was also established in cross-examination that Dr Dowda did not ask Mr Charman about his ability to go up and down steps and hills for the purposes of an assessment under Table 9.5 of the Guide. He was aware of Mr Charman's complaints of pain radiating to his left leg (sciatica), and of his left foot going to sleep and/or having a tingling sensation, but considered these complaints were solely related to the sacroiliac joint. There was no actual pathology in the left leg. Neither was there any spinal pathology, leading Dr Dowda to conclude that neither Table 9.5 nor 9.6 was appropriate.
Other assessments of impairment in the documentary evidence
Mention should also be made of the numerous other assessments of Mr Charman's impairment and/or functioning which were referred to by counsel for one or both parties. The following list by no means covers every piece of medical evidence before the Tribunal. These include both formal assessments of the level of impairment using the Guide and other reports that were used as evidence of Mr Charman's condition at various times

a Commonwealth Medical Officer reported the results of a medical examination of Mr Charman on 2 January 1987 (T30). There were further examinations by a Commonwealth Medical Officer on 27 March 1987 (reported at T33), 12 June 1987 (T36), 10 September 1987 (T40) and about September 1989 (T43)
Canberra Occupational Therapy Services prepared several reports, among them an Initial Needs Assessment on 10 September 1991 that includes a description of Mr Charman's current symptoms (T61 at p.99)
Dr Sergei Sereda completed a medico-legal report on 1 February 1995 following his assessment of Mr Charman on 19 December 1994 at the request of Comcare (T80). Similarly, Dr Martin Kennedy examined him on 15 October 1996 providing a medico-legal report on 5 November 1996 (T88), as did Dr Peter Stevenson on 4 November 1998 reporting on 24 November 1998 (T101)
in a report dated 20 October 1998 Dr Eric Caspary, an orthopaedic surgeon, assessed Mr Charman's impairment as 15% for the lower back under Table 9.6, as movement of his lumbar spine was restricted to about 50% of normal, and 0% for the left leg under Table 9.5 (Exhibit R4). He described the Tables as unsuitable without detailing why this was so
in a report also dated 20 October 1998 (T104, pp.197-201), Dr W. Patrick assessed an impairment of 20% relating to the thoraco-lumbar spine under Table 9.6, and 0% relating to the lower limb under Table 9.2 or 9.5 (Table 9.2 is headed "Lower Extremity" and relates to the movement of joints)
Dr Geoffrey Speldewinde reported on his examination findings and Mr Charman's history in a report dated 15 December 1999 (Exhibit R3).

Discussion and Findings

The legal framework and the effect of the transitional provisions of the 1988 Act

This is a claim for compensation for permanent impairment under section 24 of the 1988 Act and compensation for non-economic loss under section 27 of that Act arising from an incident on 4 June 1986. Section 24 in part provides
"(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."
The interpretation provisions in section 4(1) define "impairment" to mean
"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"

and "permanent" to mean

"likely to continue indefinitely".

Section 124 relevantly applies the 1988 Act to pre-existing injuries, that is injuries before 1 December 1988, as follows

the 1988 Act applies to an injury suffered before or after 1 December 1988 (section 124(1))
compensation is payable under the 1988 Act for an injury suffered before 1 December 1988 if compensation would have been payable for that injury under the 1971 Act (section 124(1a))
a permanent impairment that occurred before 1 December 1988 is not compensable under section 24 if compensation by lump sum was not payable under the 1971 Act (section 124(3))
for a permanent impairment that occurred during the currency of the 1971 Act, the amount of compensation to which a person is entitled is the same as would have been payable under the 1971 Act (section 124(4)).

As both parties agree, back impairment was not compensable under the 1971 Act, whereas lower limb permanent impairment was (see the so-called "Table of Maims", section 39(4) of the 1971 Act at paragraph 7 above).
The principles which can be distilled from the authorities in this area are

there may be a number of impairments arising at different times out of the same injury. The exclusionary provisions of section 124(3) only operate where the permanent impairment arose before 1 December 1988 (Brennan v Comcare (1994) 50 FCR 555 at 557,571; 122 ALR 615 at 619,632; 19 AAR 542 at 545, 558)
section 124(3) does not apply if an injury, or impairment from that injury, suffered before 1 December 1988 did not result in permanent impairment until after 1 December 1988 (Comcare v Levett (1995) 60 FCR 14 at 19; 131 ALR 645 at 650; 38 ALD 518 at 523; 22 AAR 154 at 159)
a loss of the entitlement conferred under section 24 by reason of section 124(3) only occurs when the permanent impairment the subject of the claim is the permanent impairment that the employee suffered as at 1 December 1988 (Department of Defence v West (1998) 85 FCR 491 at 512; 156 ALR 651 at 669; 50 ALD 712 at 729; 27 AAR 550 at 571)
where a change in a permanent impairment occurring after 1 December 1988 is such that, quantitatively and qualitatively, it is properly to be characterised as a further or new impairment occurring after that date it is compensable under section 24 and is not precluded by section 124(3) (West at 512; 669; 729; 571)
the gradual worsening of a permanent impairment in accordance with its natural progress does not constitute a series of new impairments (Blackman v Australian Telecommunications Corporation (1990) 12 AAR 11 at 14)
the nature and extent of the loss of use or malfunction is critical to determining whether an impairment has changed to such an extent that it is a further or new impairment (West at 512; 670; 729; 571)
questions of fact and degree are involved in making a qualitative assessment as to whether the permanent impairment has deteriorated to an extent that it is properly to be characterised as a further or different impairment to that which existed at 1 December 1988 (West at 512; 670; 729; 571)
the 10% threshold requirement in section 24(7) of the 1988 Act does not apply to an impairment that was permanent prior to 1 December 1988 (Comcare v Bozicevic (1997) 74 FCR 260 at 267; 144 ALR 132 at 139-40; 25 AAR 98 at 105).

As the 1988 Act is legislation of a remedial nature, it should be construed liberally (Johnston v Commonwealth (1982) 150 CLR 331 at 342-3; Brennan at 559; 621; 546).
Does Mr Charman have a permanent leg impairment arising from the 4 June 1986 work accident?
It was accepted by both parties that Mr Charman suffered a fall at work on 4 June 1986 when he tripped over a computer cable and that liability was accepted for this injury.
I therefore find that Mr Charman suffered this injury at work as testified to by Mr Charman. The issue then is whether he suffers from a permanent leg impairment arising from this injury.
Mr Charman's evidence is that since ceasing work completely in May 1998 he had been experiencing sciatic pain and his left foot would go to sleep. He can not walk as far as previously, can no longer use stairs and has stopped doing housework or mowing the lawn. He has difficulty getting in and out of chairs and no longer plays any sport.
Nevertheless, Comcare submitted Mr Charman did not have an assessable leg impairment arising from his work accident in 1986. Drs Caspary and Patrick had both assessed Mr Charman's impairment under Table 9.5 at zero. Dr Dowda had concluded that any leg impairment would be satisfied by Mr Charman's prosthesis alone.
Ms Godtschalk for Mr Charman contended that Mr Charman had made a clear distinction between the impairment resulting from his prosthesis and the additional impairment to his left leg arising from his back pain and sciatica. The former may well have been the cause of his impairment in about 1991, but the latter was causing impairment by 1998.
Dr Corry testified that at 1 December 1988 Mr Charman's level of impairment under Table 9.5 was 10% or at least very close to this. A person with an above-knee amputation would have a 10% impairment almost by definition. Based on Mr Charman's evidence that there was now a restriction on his tolerance for walking distances, Dr Corry said that it was reasonable to place that impairment at 20%.
The evidence in this case is far from clear-cut. It is a particularly difficult impairment evaluation case. However, taking the evidence as a whole I am not satisfied on the balance of probabilities that Mr Charman suffers a compensable permanent leg impairment arising from the 4 June 1986 accident for the purposes of section 24 of the 1988 Act.
Notwithstanding the evidence of Dr Corry and Mr Charman himself, I find more persuasive that of Dr Dowda, noting in particular the following passages from his report (Exhibit R2)
"[T]he condition that Mr Charman presents is mechanical irritability of the left sacroiliac joint with regular aggravation of this mechanical irritability by trips and falls occasioned regularly as described in the history… prior to the incident at work in June 1986 and continuing since that time."
"Mr Charman does have an impairment with respect to the left sacroiliac joint… Whilst initially Mr Charman's left sacroiliac joint irritability could well have been related to the fall that he sustained at work in June 1986, the continuing symptoms in this region are probably related to the recurrent aggravation of the irritable left sacroiliac joint by regular falls and trips occasioned by his persisting instability on the right lower limb prosthesis. On the basis of the isolated event in June 1986 (work related) and the multiple subsequent events (regular falls on an average of even one to two per week) thereafter, I cannot attribute his current presentation of irritability in the left sacroiliac joint region to the single event at work in June 1986. Although he appears to have chronic persisting pain in the left sacroiliac joint region, it may be that on the basis of the regularity of the trips and falls that he has on a weekly basis, there has never been an opportunity for this to settle properly. This makes it virtually impossible to make a statement of whether the impairment is actually permanent or a picture of continuing aggravation on an almost weekly basis occasioned by his postural instability. Thus, I cannot give with any certainty a date at which I would consider Mr Charman's impairment could be considered permanent. For example, if Mr Charman were able to avoid falls, trips and damaging himself and aggravating his back until the symptoms settled and at the same time was able to build up the strength, tone and condition of muscles buttressing the lumbar spine and the muscles of his let lower limb, while also being reappraised from the rehabilitation point of view in terms of optimising and upgrading the quality of the prosthesis he is using, then there might be some opportunity for the symptoms that he is currently experiencing in the left sacroiliac region to resolve without repeated aggravation by the falls that he is experiencing."
"Although Mr Charman suffers from an impairment as I have described above in detail, I do not consider that there is sufficient evidence for this to be assessed as being a permanent impairment."
"[I]f one incident in June 1986 could cause the symptoms that [Mr Charman] described, then repeated incidents of the same nature recurring as regularly as the history indicates would mean that even if the symptoms arising from the fall of June 1986 were to abate, they had no opportunity to do so because of the repeated and regular events of falling, stumbling or tripping. Thus, the symptomatology appears to have been permanent prior to 1 December 1988, but whether this permanent symptomatology is related to the claimed event in June 1986 at work or the continued events subsequently on a regular basis is a matter for deliberation."
"If Mr Charman's condition were to be accepted as a permanent impairment… any impairment that is present in the left sacroiliac joint region is unable to be satisfactorily assessed using the recommended Comcare Guide Table 9.5 due to the fact that the criteria in that table are essentially met by virtue of his right lower limb amputation and requirement for full lower limb prosthesis."
In oral evidence, referring to the issue of permanency and to section 24(2)(b) of the 1988 Act, Dr Dowda said
"The 'likelihood of improvement in the employee's condition' is my sticking point here, where we have not really had an opportunity to assess whether this person's condition is going to improve because of the frequency of abuse to the sacroiliac joint that occurred on a very regular basis each week."
Dr Dowda's analysis finds some support in the conclusions of two of Mr Charman's specialists, Dr Caspary and Dr Patrick, in October 1998. For example, Dr Caspary found that Mr Charman "suffered a zero whole body loss related to the problems in his left leg" (Exhibit R4). The frequent tripping and falling on which Dr Dowda relies as a significant factor is referred to regularly in the documentary evidence (see the reports of Drs Corry, Sereda, Kennedy and Stevenson). On the other hand, Dr Corry whose last examination of Mr Charman was about one and a half months before Dr Dowda in late 2000, supports a finding of permanent impairment at 20% under Table 9.5.
I therefore find that the 4 June 1986 incident has not resulted in a permanent leg impairment compensable under section 24 of the 1988 Act. As Dr Dowda points out, Mr Charman's ongoing impairment to the left sacroiliac joint is a result not of the June 1986 accident, but of regular falls and trips occasioned by the persisting instability on the right leg prosthesis. Furthermore, that impairment can not be regarded as permanent.
Does Mr Charman have a permanent back impairment arising from the 4 June 1986 work accident?
Mr O'Donovan for Comcare appeared to submit at one stage that both parties agreed there was a permanent back impairment. Later, however, it became clear that Comcare was actually submitting two alternative arguments to the Tribunal, the first of which involved finding there was no permanent impairment of the back attributable to the trip and fall on 4 June 1986. Rather, Mr Charman's back pain was caused by difficulties with his prosthetic limb and was essentially mechanical in nature. This was in reliance on Dr Dowda's oral evidence and written report, which Comcare submitted was also supported by the reports of Dr Stevenson (T101), Dr Nadana Chandran (T65, 26 August 1992), and Dr Heathershaw, an Australian Government Health Service medical officer (T66, 18 September 1992). Comcare asserted that this was the preferable view on the evidence before the Tribunal.

Ms Godtschalk for Mr Charman attacked Comcare as arguing two inconsistent and contradictory points of view, principally as a means to advance its contention that the 1986 injury no longer operated. Despite this, she submitted, Comcare had gone through the medical and other evidence in the T-documents in detail to show that Mr Charman had a continuing back condition. She also pointed out that liability for the injury was not in issue before the Tribunal. In fact Mr Charman was still being paid compensation for the injury.
I do not accept Ms Godtschalk's contention that Comcare's approach is inconsistent and contradictory. As Mr O'Donovan pointed out, there are two limbs to his submissions. The first limb, whether Mr Charman suffers a permanent back impairment referable to the 1986 accident, must be satisfied before consideration needs to be given to the second limb, whether any such impairment was permanent prior to 1988 and whether any deterioration after 1988 has been significant.
Ms Godtschalk submitted that Dr Dowda's report was based on incorrect historical information, the length of time Mr Charman was off work being six months rather than five weeks, and overlooked the continuing pain Mr Charman had experienced from the date of the injury until now. It was emphasised that there had not been a change in the type of pain arising out of the injury, but a change in the impairment resulting from the injury.
Dr Dowda's suggestion that the injury of 4 June 1986 had resolved was also submitted to be in direct conflict with the opinions of Drs Sereda, Kennedy and Caspary, all of whom it was argued had reported that Mr Charman's ongoing condition was related to the fall on that date.
Dr Stevenson's report was undermined it was said by his heavy reliance on the existence of back pain prior to 1986, when the evidence of Mr Charman was that the earlier pain was on the right side and had ceased. The fall in 1986 produced left-sided low back pain with left sciatica, which Mr Charman had never experienced before. Dr Stevenson also had not addressed the issue of permanent impairment.
Again I have found this a difficult matter to resolve. But consistent with my finding on leg impairment, and placing substantial reliance on the evidence of Dr Dowda which I find most persuasive in this matter, I am not satisfied on the balance of probabilities that Mr Charman suffers a compensable permanent back impairment arising from the 4 June 1986 accident for the purposes of section 24 of the 1988 Act.
I refer again to the extensive quotes from Dr Dowda's report in paragraph 49. In brief he is of the view that

Mr Charman suffers from chronic irritation involving the left sacroiliac joint which is regularly aggravated by trips and falls "occasioned by instability and loss of balance secondary to the right lower limb prosthesis"
there is no objective evidence of structural deterioration in the lumbar spine, having regard to MRI and bone scanning studies
bone scanning studies undertaken in November 1999 did not identify any abnormality in the lumbosacral spine, pelvis, sacroiliac joints or hips
nor was there any sign on clinical examination of discomfort or problems in the lumber vertebral spine
Mr Charman's lumbar spine is not therefore the site of his impairment or the focus of his symptomatology. There is no spinal axis pathology
Mr Charman had reported low back pain prior to the June 1986 incident, such pain being of sufficient severity to have Dr Corry organise X-rays of the lumbar spine
the continuation of Mr Charman's low back pain is arguably associated with the secondary effects of his motorcycle accident in 1982, that is the right lower limb amputation, the prosthesis and the continuing instability of gait, stance and posture associated with the prosthesis.

The evidence of Drs Stevenson (1998), Chandran (1992) and Heathershaw (1992) provide some support for Dr Dowda's opinion. Dr Speldewinde's view in 1999 that Mr Charman's lower back problem "of itself has not changed over the last 13 years" (Exhibit R3), although somewhat ambiguous, on one view lends further support.
Ms Godtschalk for Mr Charman says that ranged against these views are those of

Dr Corry who found a current impairment of 20% under Table 9.6 (Exhibit A3)
Dr Sereda who in 1994 found that Mr Charman was suffering a soft tissue injury involving his lumbar spine and also possible facet joint arthropathy related to the June 1986 incident (T80)
Dr Kennedy who in 1996 found a chronic soft tissue strain to the lower back related to the June 1986 incident (T88)
Dr Caspary who in 1998 found a 15% whole body impairment under Table 9.6 (Exhibit R4)
Dr Speldewinde who in 1999 recorded similar examination findings to those of Dr Corry ( Exhibit R3)

However, a closer examination of the reports reveals that the evidence of these medical practitioners is not as clear-cut as Ms Godtschalk suggests. For example

Drs Sereda, Kennedy and Speldewinde do not address issues related to permanent impairment
Dr Kennedy refers to Mr Charman's motorcycle accident as "indirectly… contributing to the chronic nature of Mr Charman's back pain by way of multiple falls and an alteration in the biomechanics of his gait". Dr Kennedy says that the back condition "is exacerbated by the recurrent falls that he has had secondary to his prosthetic use"
Dr Caspary notes that Mr Charman's back condition has been complicated by "a significant overlay" and "a right above knee amputation". Dr Caspary also refers to the unsuitability of the Tables for assessing loss and "very much so with this type of patient". I take this to refer to the difficulties in assessment due to the non-compensable right leg amputation.

Viewing the totality of Mr Charman's circumstances, particularly the consequences of his motorcycle accident and subsequent high right leg amputation, I find the assessment of Dr Dowda more convincing than that of Dr Corry. I am not satisfied that Mr Charman suffers an impairment to his lumbar spine, a fortiori a permanent one resulting from the 4 June 1986 incident.
Conclusions
I find that the 4 June 1986 accident has not resulted in Mr Charman suffering a permanent impairment of the left leg or a permanent impairment of the back. He is therefore not entitled to recover compensation under sections 24 and 27 of the 1988 Act.
Decision
The reviewable decision of the Respondent of 31 August 2000 is affirmed.
I certify that the 66 preceding paragraphs are a true copy of the reasons for the decision herein of Mr G A Mowbray
Signed:         .....................................................................................
  Associate
Date/s of Hearing  5-6 November 2001
Date of Decision  30 July 2002
Counsel for the Applicant        Ms Jane Godtschalk
Solicitor for the Applicant         Mr Bill Redpath, Gary Robb and Associates
Counsel for the Respondent    Mr Damien O'Donovan
Solicitor for the Respondent    Mr Robert Maclean, Dibbs Barker Gosling