Comcare v Mihajlovic
[2000] FCA 285
•16 MARCH 2000
FEDERAL COURT OF AUSTRALIA
Comcare v Mihajlovic [2000] FCA 285
STATUTORY INTERPRETATION - construction of s 25(4) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) - provision for further payments of compensation for a subsequent increase in the degree of permanent impairment of an employee - subsequent increase must be 10% or more - whether "increase" relates to an individual impairment, overall impairment, or both where there are multiple impairments - cross-appeal - whether Tribunal entitled to depart from original assessment by Comcare in respect of (a) particular individual impairments and (b) the appropriate tables for determining the extent of impairments.
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4, s 24, s 24(5), s 24(6), s 24(7), s 25, s 25(1)(b), s 25(4), s 28, s 28(1)(c)
Guide to the Assessment of the Degree of Permanent Impairment, Tables 9.1, 9.4, 9.5, 9.6, 14.1Brennan v Comcare (1994) 50 FCR 555 followed
Comcare v Levett (1995) 60 FCR 14 referredCOMCARE v MIROSLAVA MIHAJLOVIC
A 46 of 1999FINN J
CANBERRA
16 MARCH 2000
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
A 46 OF 1999
BETWEEN:
COMCARE
APPLICANTAND:
MIROSLAVA MIHAJLOVIC
RESPONDENTJUDGE:
FINN J
DATE OF ORDER:
16 MARCH 2000
WHERE MADE:
CANBERRA
THE COURT ORDERS THAT:
1. the application be allowed;
2. the decision of the Tribunal be set aside;
3. the matter be remitted to the Tribunal for redetermination according to law.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
A 46 OF 1999
BETWEEN:
COMCARE
APPLICANTAND:
MIROSLAVA MIHAJLOVIC
RESPONDENT
JUDGE:
FINN J
DATE:
16 MARCH 2000
PLACE:
CANBERRA
REASONS FOR JUDGMENT
The less than happy interaction of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the SRC Act") and the "Guide to the Assessment of the Degree of Permanent Impairment" ("the Guide") prepared under s 28 of that Act, underlies this application. The question raised involves the proper construction of s 25(4) of the SRC Act.
The setting in which the question arises can be put shortly in the following way. Work related injuries sustained by an employee result in several discrete impairments (shoulder, back, etc) for which Comcare accepts liability. The employee is adjudged under the Guide (a) to have designated compensable degrees of impairment in respect of each of those discrete impairments, and (b) to have a designated overall (or combined) degree of impairment. These various degrees are expressed as percentages. The compensation paid the employee is assessed by reference to the percentage for overall degree of impairment. Subsequently the employee makes a further claim for compensation in respect of the impairment suffered. One of the discrete impairments has increased by 10 per cent. But because of other changes in the employee's reassessed impairments and in the manner of their measure under the Guide, the overall percentage degree of impairment results only in an increase of 1 per cent from the earlier such assessment.
Section 25(4) provides:
"(4) Where Comcare has made a final assessment of the degree of permanent impairment of an employee, no further amounts of compensation shall be payable to the employee in respect of a subsequent increase in the degree of impairment, unless the increase is 10% or more."
The issue raised, put shortly, is whether the 10 per cent increase referred to relates (i) to any individual impairment; (ii) to the overall degree of impairment; or (iii) whichever of the two is most favourable to the claimant employee. A number of subsidiary issues will be referred to below not the least of which is that, contrary to both my own view and, seemingly, that of Burchett in the Full Court in Brennan v Comcare (1994) 50 FCR 555 at 558-559, the subsection has no application in any event to a case such as I have described.
Before outlining the factual setting it is appropriate, first, to refer to the relevant provisions both of the SRC Act and of the Guide.
The SRC Act and the Guide
Section 4 of the SRC Act gives the following definition of "impairment":
" '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."
Insofar as presently relevant, s 24 provides:
"24 (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.
…
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under sub-section (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, where Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section."
Section 25, in turn provides:
"25 (1) Where Comcare:
(a)makes a determination that an employee is suffering from a permanent impairment as a result of an injury; and
(b)is satisfied that the degree of the impairment is equal to or more than 10% but has not made a final determination of the degree of impairment;
Comcare shall, on the written request of the employee made at any time before the final determination is made, make an interim determination of the degree of permanent impairment under section 24 and assess an amount of compensation payable to the employee.
(2) The amount assessed by Comcare under subsection (1) shall be an amount that is the same percentage of the maximum amount specified in subsection 24(9) as the percentage determined by Comcare under subsection (1) to be the degree of permanent impairment of the employee.
(3) Where, after an amount of compensation has been paid to an employee following the making of an interim determination, Comcare makes a final determination of the degree of permanent impairment of the employee, there is payable to the employee an amount equal to the difference (if any) between the amount payable under section 24 on the making of the final determination and the amount paid to the employee under this section.
(4) Where Comcare has made a final assessment of the degree of permanent impairment of an employee, no further amounts of compensation shall be payable to the employee in respect of a subsequent increase in the degree of impairment, unless the increase is 10% or more."
The statutory authorisation for the Guide derives from s 28. For present purposes, it provides:
"28 (1) Comcare may, from time to time, prepare a written document, to be called the 'Guide to the Assessment of the Degree of Permanent Impairment', setting out:
(a)criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury shall be determined;
…
(c)methods by which the degree of permanent impairment … as determined under those criteria, shall be expressed as a percentage.
…
(4) Where Comcare, a licensed authority, a licensed corporation or the Administrative Appeals Tribunal is required to assess or re-assess, or review the assessment or re-assessment of, the degree of permanent impairment of an employee resulting from an injury, … the provisions of the approved guide are binding on Comcare, the licensed authority, the licensed corporation or the Administrative Appeals Tribunal, as the case may be, in the carrying out of that assessment, re-assessment or review, and the assessment, re-assessment or review shall be made under the relevant provisions of the approved Guide."
The "Principles of Assessment" contained in the Guide include the following:
"Impairment and Non-Economic Loss
Impairment means 'the loss, loss of use, damage or malfunction, of any part of the body, bodily system or function or part of such system of function'. It relates to the health status of an individual and includes anatomical loss, anatomical abnormality, physiological abnormality and psychological abnormality. Throughout this guide emphasis is given to loss of function as a basis of assessment of impairment and as far as possible objective criteria have been used.
Impairment is measured against its effect on personal efficiency in the 'activities of daily living' in comparison with a normal healthy person. The measure of 'activities of daily living' is a measure of primary biological and psychosocial function such as standing, moving, feeding and self care.
…
The Impairment Tables
Part A of the Guide is based on the concept of 'whole person impairment' which is drawn from the American Medical Association's Guides.
Evaluation of a whole person impairment is a medical appraisal of the nature and extent of the effect of an injury or disease on a person's functional capacity and activities of daily living.
As with the American Medical Association's Guides, Part A of this guide is structured by assembling detailed descriptions of impairments into groups according to body system and expressing the extent of each impairment as a percentage value of the functional capacity of a normal health person. Thus a percentage value can be assigned to an employee's impairment by reference to the relevant description in this guide.
…
Combined Impairments
It is important to realise that impairment is system or function based and that a single injury or disease may give rise to multiple loss of function. When more than one table applies to a single injury separate scores should be allocated to each functional impairment. Where two or more injuries give rise to the same impairment a single rating only should be given.
Double Assessment
The possibility of double assessment for a single loss of function must be guarded against. For example, it would be inappropriate to assess a lower limb amputation by reference to both the amputation table (9.3) and the lower extremity table (9.2).
Where an employee suffers from more than one impairment the values are not added but are combined using the Combined Values Table. The purpose of this table is to give the total effect of all impairments, according to a formula, as a percentage value of the employee's whole bodily system or function (see Table 14)." Emphases added.
The tables in the Guide of present relevance all relate to the musculo-skeletal system. The particular tables to which I will refer prescribe means for assigning percentage levels for the impairment dealt with in each individual table, that percentage being described in each as "Percentage Whole Person Impairment". The relevant tables are:
Table 9.1 Upper Extremity
Table 9.4 Limb Function - Upper Limb
Table 9.5 Limb Function - Lower Limb
Table 9.6 Spine
Table 14.1 (the Combined Values Table) provides the means for producing a composite percentage whole person impairment where separate percentage values have been calculated under the tables for distinct impairments. That composite percentage does not result simply from the addition of the separate percentages. To illustrate the process, two separate impairments each having a 50 per cent value give rise when combined under Table 14.1 to a percentage whole person impairment of 75 per cent. It is that latter figure that would, for example, provide the operative percentage under s 24(3) of the SRC Act for the purpose of calculating the compensation payable to an employee suffering two 50 per cent impairments from an injury.
The Factual Setting
All that need be indicated is that:
(i) the present respondent, Miroslava Mihajlovic, suffered work-related injuries from an incident in 1991 for which Comcare accepted liability;
(ii) Ms Mihajlovic was assessed in 1992 as having a 28 per cent degree of whole body permanent impairment this being a composite value of the following three impairments calculated under their respective designated table:
.upper limb function due to right shoulder and arm pain: 10 per cent - Table 9.4
. sciatica: 10 per cent - Table 9.5
. lumbar spondylosis: 10 per cent - Table 9.6;(iii) it is apparent, as the Tribunal found, that if Table 14.1 had been applied correctly to the above percentages, the combined value ought to have been 27 per cent, not 28 per cent;
(iv) on 21 March 1996, the respondent applied for additional compensation for permanent impairment her lack of success in that application leading to the appeal to the Tribunal;
(v) on the medical evidence before it the Tribunal concluded that Ms Mihajlovic had a 28 per cent degree of permanent impairment this figure resulting from applying Table 14.1 to the following impairments, assessed under the tables indicated:
. thoraco-lumbar spine injury: 20 per cent - Table 9.6
. right shoulder injury: 10 per cent - Table 9.1;(vi) it should be noted in relation to the figures arrived at by the Tribunal on the evidence before it that -
(a)no percentage figure was assigned to sciatica (cf the 10 per cent so assigned in 1992 under Table 9.5); and
(b)different Tables were used in 1992 (Table 9.4) and before the Tribunal (Table 9.1) to assign a value to the respondent's shoulder-related injury.
The Tribunal's Decision
Having made the above individual percentage findings in respect of the respondent's shoulder injury and thoraco-lumbar spine injury, the Tribunal concluded that, in determining an employee's degree of permanent impairment for the purpose of calculating compensation under s 24, a combined assessment under Table 14.1 was to be made of all of the employee's impairments whether or not those impairments arose out of the same or different injuries. The parties, I would note, have not put this interpretation of s 24 in issue and I express no opinion on it (though by so doing I imply no criticism of it).
The Tribunal then went on to consider the possible application of s 25(4) to its findings. It had found that while one of the respondent's impairments (the thoraco-lumbar spine injury) had increased 10 per cent over its 1992 assessment of 10 per cent, her overall (or combined) degree of whole person impairment only increased by 1 per cent (ie 27% to 28%). It then asked whether the 10 per cent increase referred to in s 25(4) referred to one or other or could be either of a 10 per cent increase in a single impairment (where there were multiple impairments) or a 10 per cent increase in the combined degree of whole person impairment.
It concluded that the subsection was ambiguous; that it should be construed generously to an applicant (it being beneficial legislation); and that, as it could be interpreted as applying to either a 10 per cent increase to the degree of impairment in respect of a single impairment (there being multiple impairments) or a 10 per cent increase of whole person impairment (applying Table 14.1 to all impairments), it must use whichever interpretation is most favourable to the applicant. In light of its finding of a 10 per cent increase in the thoraco-lumbar spine impairment, the respondent was not debarred by s 25(4) from obtaining further compensation for the 1 per cent overall increase in the degree of whole person permanent impairment.
Without expressing a concluded view on the matter the Tribunal raised the question whether s 25(4) applied to assessments under s 24, as it appeared in a section concerned with the making of an interim and then a final assessment.
The Present Application
Comcare's contentions in short are (i) that s 25(4) applies to determinations made under s 24; (ii) that the subsection has only one proper construction; and (iii) that that construction requires a 10 per cent increase in the degree of permanent impairment of an employee (after applying Table 14.1 in cases of multiple impairments) even if one particular impairment has increased by 10 per cent.
The respondent both has put the above in issue and has cross-appealed. As best I understand the cross-appeals as put they are that (i) the Tribunal was obliged to accept the 1992 assessment of degree of permanent impairment as its starting point and hence was obliged to include in its assessment the prior lower limb assessment of 10 per cent for sciatica (that assessment being for a "permanent impairment"); and (ii) where impairments have been assessed under particular tables of the Guide, the Tribunal cannot, when subsequently assessing those impairments, swap the tables to be used in making the assessment.
For my own part I agree with Comcare's construction of s 25(4) and I reject the respondent's two grounds of cross-appeal. I can state my reasons shortly.
Section 25(4)
This subsection can properly be said to be oddly located. Nonetheless its burden is clear enough. The Tribunal in its reasons has suggested that the subsection might only apply to those instances where an interim determination has been made under s 25 followed by a final determination. Why the legislature would take the seemingly capricious step of applying a 10 per cent rule to one class of "final determination" (ie those following a s 25 "interim determination") but not another (ie those made under s 24) is by no means self-evident. More importantly, in my view, the manner in which the term "final" is used in s 25 (eg s 25(1) "before the final determination is made"; "has made a final assessment": s 25(4)) indicates clearly enough that the term is not intended to be confined in the manner suggested by the Tribunal, on the various occasions on which it is used in s 25. Rather it refers to the decision which expresses Comcare's ultimate conclusion on the degree of permanent impairment of an employee for the purposes of finalising the compensation payable under s 24 and (if relevant) s 25(3) of the SRC Act whether or not that conclusion is arrived at after an interim determination has been made. A like view was accepted by Burchett J in Brennan's case at 558-559. I should add that I do not consider there to be an operative distinction to be drawn for present purposes between the terms "final determination" in s 25(1) and (3) and "final assessment" in s 25(4).
Turning to the construction of s 25(4) itself, the scheme of Part II, Division 4 of the SRC Act points unmistakably to the construction propounded by Comcare. Unless and until Comcare determines (s 24(7)) or is satisfied (s 25(1)(b)) that an employee's degree of permanent impairment is 10 per cent, compensation is not payable to the employee either under s 24 or s 25. This 10 per cent is, necessarily, that referred to in s 24(5) - ie the degree of impairment determined under the provisions of the Guide. Where an employee has multiple impairments that percentage is to be arrived at using the Combined Values Table of Table 14.1. As the "Principles of Assessment" contained in the Guide indicate - albeit again in an oddly located place (ie under the heading "Double Assessment") - the purpose of Table 14.1 "is to give the total effect of all impairments, according to a formula, as a percentage value of the employee's whole bodily system or function". In so doing in respect of a multiply impaired employee, the Table performs the function envisaged for the Guide in s 28(1)(c) of the SRC Act: it provides the method by which the degree of permanent impairment of such an employee is to be expressed as a percentage, being the percentage that is employed in s 24 in assessing the compensation payable to the employee.
In cases of multiple impairments, though each impairment necessarily involves "the loss, the loss of the use, etc … of any part of the body etc" (see s 4, "impairment"), the calculation of the percentage degree of permanent impairment of that particular impairment is not an end in itself. It is simply a step to be taken (along with like steps in relation to the employee's other impairments) under the Tables, to enable (via Table 14.1) a percentage of degree of permanent impairment to be derived for s 24 purposes. It is not of itself a percentage for s 24(6) purposes. It functions as an element in the method prescribed by the Guide (s 28(1)(c)) to express the degree of an employee's permanent impairment as a percentage. It would, in my view, be quite anomalous in the scheme of the SRC Act if such a figure having such purpose were nonetheless to operate as a trigger to further compensation (if 10 per cent or more) for s 25(4) purposes. The Act neither requires, nor the language of the subsection warrants, such a conclusion.
In the same way that s 24(7) requires the degree of permanent impairment of the employee (not of a particular part of the body, etc) be 10 per cent before compensation is payable, so also s 25(4) in my view requires a 10 per cent increase in the degree of permanent impairment of an employee (not of a body part, etc) before further amounts of compensation are payable.
For my own part I do not consider the subsection, either in its setting or in its language, is at all ambiguous in this. The use in the subsection of the precis form "the degree of impairment" following in the same sentence the expanded formula "the degree of permanent impairment of an employee" is not a trigger to the finding of ambiguity. It is no more than an obvious example of economy in drafting. The two descriptions have - and were intended to have - the same burden: cf Comcare v Levett (1995) 60 FCR 14 at 18.
The Cross Appeals
I earlier referred to the two matters relied upon by Ms Mihajlovic - ie (i) the alleged failure to include a figure of 10 per cent in the Tribunal's calculation on account of sciatica, that figure being a component part of the 1992 determination of permanent impairment; and (ii) the use of different tables to calculate values for the shoulder impairment in 1992 and in the later determination.
The SRC Act does not prescribe a particular procedure to be followed by an applicant who, having had an assessment made under s 24, later seeks further compensation on the basis of an increase in the degree of that person's permanent impairment. An entitlement to make such a further claim is, of course, presupposed by s 25(4).
While an increase in percentage degree of permanent impairment necessarily involves a comparison of the percentage degrees at two different times, that comparison in my view is to be based upon actual medical appraisals of the relevant person for the purpose of making the determinations at those times. In other words it is the person's actual percentage degrees of impairment as measured in each instance in accordance with the Guide that are compared so as to ascertain, for s 25(4) purposes, whether a 10 per cent increase has occurred.
If, for example, one of a number of impairments (a) existed and was given a percentage value at Time 1, and (b) contributed (via Table 14.1) to the determined percentage degree of permanent impairment, that impairment would only be relevant at later Time 2 if it was then on the evidence found both to exist and to have a value that could (again via Table 14.1) contribute to the determination of percentage degree of permanent impairment at that time. If the person's actual impairments had so altered that it did not so contribute at the later time, it could not be taken into account for s 25(4) comparison purposes. It simply would not then be a contributing impairment to that person's assessed percentage degree of permanent impairment at that time.
That it may previously have been assessed as a permanent impairment in no way precludes its later being found not to continue to be so when a new assessment is undertaken of the person. Medical prophesy is by no means infallible. If a change occurs and a later assessment of whole person impairment is invited, changed circumstances can - and must properly - be taken into account at that later time.
Likewise when that later assessment is made, it involves the making of medical appraisals under the Guide at that time. Provided the percentage values are ascertained using what then are reasonable and appropriate tables for assessing the particular impairments in question as a matter of judgment, it is irrelevant in my view that for the purposes of a prior determination different tables were used in making the individual assessments of particular impairments then experienced by the person in question.
In each instance the determination to be made is the same - the percentage degree of permanent impairment of the employee. The comparison is not of the percentage degrees of the individual impairments where there are multiple impairments. That at different times different tables might reasonably be considered more appropriate to be employed in leading to that determination in no way falsifies or otherwise vitiates the comparison to be made. It merely suggests that at a particular time one rather than another table may be able properly to be invoked in aid of the determination to be made.
I consider there is no substance to either of the matters raised in the cross-appeal.
Conclusion
I will allow the appeal and order that the Tribunal's decision be set aside. I will remit the matter to the Tribunal to have it redetermined according to law.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate:
Dated: 15 March 2000
Counsel for the Applicant: Mr D O'Donovan Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr B Salmon QC with Mr C McKeown Solicitor for the Respondent: Higgins Solicitors Date of Hearing: 25 November 1999 Date of Judgment: 16 March 2000
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