Dufty and Comcare
[2008] AATA 1103
•10 December 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1103
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A 200500119
GENERAL ADMINISTRATIVE DIVISION ) Re DONNA DUFTY Applicant
And
COMCARE
Respondent
DECISION
Tribunal J.W. Constance, Senior Member
Dr P. Wilkins MBE, Member
Date 10 December 2008
Place Canberra
Decision 1. The reviewable decision of Comcare made 3 May 2005 relating to Ms Dufty's claim for compensation pursuant to section 24 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) is set aside.
2. In substitution for the decision set aside it is decided that:
1) Comcare is liable to pay to Ms Dufty compensation pursuant to section 24 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of the injury of headaches which arose out of her employment by Centrelink on 22 November 2002;
2) the degree of whole person impairment resulting from the injury referred to in the preceding sub-paragraph is 10%;
3) Comcare is not liable to pay Ms Dufty an amount of compensation pursuant to section 24 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of the injury being cervical and cervicodorsal myalgia.
3. The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made, Comcare shall pay the costs of the proceedings incurred by Ms Dufty.
..............[signed]........................
J.W. Constance, Senior Member
CATCHWORDS
COMPENSATION – two separate injuries - permanent impairment - whether Applicant suffered an impairment which is permanent – degree of impairment - decision set aside.
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 24
Abrahams v Comcare [2006] FCA 1829
Canute v Comcare [2006] HCA 47
Dufty and Comcare [2008] AATA 1011
REASONS FOR DECISION
INTRODUCTION
4. In this application Ms Dufty is seeking a review of a decision of Comcare made 3 May 2005. In its decision Comcare refused her claim for compensation for injuries which she claimed have resulted in her permanent impairment. The claim was made under section 24 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) and related to several sprain injuries suffered by Ms Dufty in a fall in November 2002. Comcare had previously accepted liability to compensate Ms Dufty in respect of the sprain injuries.
5. By letter of 15 August 2006 Ms Dufty lodged a claim for further injuries she claimed to have suffered when she fell. These injuries included cervical and cervicodorsal myalgia and headaches, the myalgia being claimed as a separate injury to the headaches.
6. On 10 November 2009 we decided that between 16 December 2004 and the date of our decision Ms Dufty had ceased to suffer from the effects of the sprain injuries. We decided also that Ms Dufty had suffered, and continued to suffer, cervical and cervicodorsal myalgia and headaches as claimed.
7. The applications to review the decisions relating to the further injuries, the ceasing of compensation payments in respect of the previously accepted injuries and the claim for compensation for permanent impairment were all heard together. We delayed making our decision in relation to the permanent impairment claim to give the parties the opportunity to make further submissions. Submissions were sought as to the Tribunal’s jurisdiction to make a decision in relation to permanent impairment resulting from myalgia and headaches. We considered it was appropriate to do this as the claim for permanent impairment was made more than a year before the claim for the injuries in respect of which compensation for permanent impairment was being sought.
8. Both parties have submitted that the Tribunal has jurisdiction to decide the permanent impairment claims. We are satisfied that we do have this jurisdiction as Ms Dufty referred to headaches and myalgia in the original permanent impairment claim form This is in accordance with the principles set out by the Federal Court in Abrahams v Comcare [2006] FCA 1829.
9. Many of the facts upon which we have reached our decision in this application are set out in our Reasons for Decision published in applications A2005/118 and 2007/327, reference [2008] AATA 1011. These Reasons should be read in conjunction with those already issued.
10. Unless otherwise stated additional findings of fact are based on the evidence of Ms Dufty. We are satisfied of facts found on the balance of probabilities.
LEGISLATIVE FRAMEWORK
11. The relevant provisions of the Act are as follows.
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.
…
(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:
…
(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.
ISSUES FOR DECISION
12. The issues for decision in relation to each of the injuries are:
1)has Ms Dufty suffered an impairment which is permanent;
2)if so, what is the degree of impairment?
CONSIDERATION OF THE MYALGIA INJURY
Has Ms Dufty suffered an impairment which is permanent?
13. Impairment is defined in the Act 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.” [1]
[1] Section 4.
14. We are satisfied that the pain and restriction in the movement of her neck which we have found Ms Dufty suffers is an impairment. They are a malfunction and loss of use of part of the body.
15. We have accepted Ms Dufty’s evidence that she has suffered this condition (albeit of varying degrees of severity) since the accident. We also take into account that after Dr Griffith re-examined Ms Dufty in March 2008 he reported that she continued to suffer myalgia and that it may “persist for years.”[2]
[2] Ex.A6.
16. On the basis of this evidence we are satisfied that Ms Dufty does suffer an impairment which is permanent. We have considered that the impairment has continued since November 2002 and is continuing. We have taken into account also that based on Dr Griffith’s opinion it is unlikely that there will be a substantial improvement in Ms Dufty's condition for some years. We are satisfied that Ms Dufty has undertaken all reasonable rehabilitative treatment. We have reached this conclusion on the basis of Ms Dufty's evidence as to the treatment she has undertaken. We are not satisfied that there is further treatment which could assist Ms Dufty.
What is the degree of permanent impairment?
17. Table 9.6 sets out the degrees of impairment in relation to the spine. Minor restrictions of movement of the cervical spine attract a 5% whole person impairment rating. The next higher rating is 10% for loss of half normal range of movement.
18. Ms Dufty gave evidence of pain on turning her head to the right such as when swimming.
19. In an Initial Needs Assessment Report dated 5 June 2003 Ms Trevenar, Occupational Therapist, reported that “on a bad day, neck is very stiff and painful”.[3]
[3] Ex.R7.
20. Dr Griffith first examined Ms Dufty in January 2004. He reported that at that time “in the cervical region there is persisting stiffness and painful restriction of movement on turning to the right and with lateral flexion.”[4]
[4] Ex.A2
21. In March 2008 Dr Griffith measured Ms Dufty's cervical movements. These are listed in his report of 11 April 2008 and show a loss of 55 degrees of movement of a possible 340 degrees. He assessed this as a minor restriction. [5]
[5] Ex.A6.
22. When he examined her in September 2004, Professor Nade reported that he identified a slight restriction in range of movement of Ms Dufty's neck.[6] Although in the Professor’s opinion this was likely to be the result of spondylosis it does confirm the existence of restriction in movement at that time.
[6] Ex.R13.
23. On the evidence referred to we are satisfied that Ms Dufty has suffered a 5% whole person impairment in respect of her cervical and cervicodorsal myalgia injury. Applying subsection 24(7) of the Act compensation is not payable.
CONSIDERATION OF THE HEADACHES INJURY
Has Ms Dufty suffered an impairment which is permanent?
24. We have found that since the accident Ms Dufty has continued to suffer more frequent and more severe headaches than she did prior to the accident. She takes medication to relieve the headaches and also experiences some relief from physiotherapy.
25. Applying the provisions of the Act to which we have already referred we are satisfied that the headaches suffered by Ms Dufty are an impairment.
26. Further, we are satisfied that the headaches have continued for a period of six years since the accident and are continuing. On the evidence before us we are not satisfied that there is a reasonable likelihood that this condition will improve in the foreseeable future. We are satisfied that Ms Dufty has undertaken all reasonable rehabilitative treatment in respect of the condition.
27. We are satisfied that the headaches have resulted in a permanent impairment of Ms Dufty.
What is the degree of permanent impairment?
28. Since the accident Ms Dufty has suffered headaches about twice per week and migraines every 4-6 weeks. Prior to the accident she suffered headaches approximately twice per year and a migraine headache about once per year.
29. On the basis of this evidence we are satisfied that the attacks occur more than 12 times per year and cause minor interference with activities of daily living. Under Table 13.1 of the Guide this equates to a 10% whole person impairment and compensation is payable to Ms Dufty under section 24 of the Act.
ARE THE COMBINED VALUE CHARTS APPLICABLE?
30. Counsel for Ms Dufty argued that as both injuries are related to her neck it is appropriate to apply the Combined Value Charts which are included in the Guide. However it is clear from section 24 that the permanent impairment which is assessed is the permanent impairment which arises from an injury rather than a combination of one or more injuries. When an injury results in more than one impairment “the values are not added but are combined using the Combined Values Table.” [7]
[7] Guide to the Assessment of the Degree of Permanent Impairment at p-5.
31. In this case the claim made on Ms Dufty's behalf was for two separate injuries and we have decided that she suffered two separate injuries. In this situation the impairment for each injury is separately assessed and those assessments are not combined.
32. In Canute v Comcare[8] the High Court emphasised that “Comcare’s liability pursuant to s 24(1 )… arises with respect to ‘an injury’ which results in ‘a permanent impairment’.” [9] Later the Court said that “the Guide is to be approached through the prism of each ‘injury’.”[10]
[8] [2006] HCA 47.
[9] At para.8.
[10] At para.15.
DECISION
33. The reviewable decision of Comcare made 3 May 2005 relating to Ms Dufty's claim for compensation pursuant to section 24 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) is set aside.
34. In substitution for the decision set aside it is decided that:
4) Comcare is liable to pay to Ms Dufty compensation pursuant to section 24 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of the injury of headaches which arose out of her employment by Centrelink on 22 November 2002;
5) the degree of whole person impairment resulting from the injury referred to in the preceding sub-paragraph is 10%;
6) Comcare is not liable to pay Ms Dufty an amount of compensation pursuant to section 24 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of the injury being cervical and cervicodorsal myalgia.
35. The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made, Comcare shall pay the costs of the proceedings incurred by Ms Dufty.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J.W.Constance, Senior Member.
Signed: ................................................................................................
Peter Horobin
AssociateDate of Hearing 1-2, 4 September 2008
Date of Decision 10 December 2008
Counsel for the Applicant David Richards
Solicitor for the Applicant Jonathon May
Slater & Gordon Inc. Garry Robb and Assoc.
Counsel for the Respondent Philip Walker
Solicitor for the Respondent Kate WatsonAustralian Government Solicitor
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