Edebone and Comcare - [2000] AATA 937

DECISION AND REASONS FOR DECISION [2000] AATA 937

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1998/0696 & V1999/1290

GENERAL ADMINISTRATIVE DIVISION          )
           Re      RAY EDEBONE
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date25 October 2000
PlaceMelbourne

Decision The decision under review is set aside and the application be remitted to the respondent for assessment and payment of compensation in accordance with these reasons.

..……………….. ……….
Senior Member

CATCHWORDS:

Compensation – Prior award of compensation for left leg impairment – subsequent right leg impairment - whether related to left leg injury – whether jurisdiction to review in absence of specific determination – possibility of knee replacement surgery – whether impairment 'permanent' – model litigant policy – decision set aside.
Judiciary Act 1903 s.55ZF
Lees v Comcare 1999 56 ALD 84
Re Filewood and Comcare 2000 58 ALD 314
Safety Rehabilitation & Compensation Act 1988 s.45

REASONS FOR DECISION

25 October 2000 Mr J. Handley, Senior Member

On 1 September 1999, the Commonwealth Attorney General issued Legal Service Directions pursuant to s.55ZF of the Judiciary Act 1903. Paragraph 2 of the Directions, under the sub-heading 'Nature of the Obligation' records the 'obligation' as the 'responsibility for the maintenance of proper standards in litigation' by the Commonwealth and its agencies in the conduct of litigation.
The tragedy of these applications is that the Policy was not observed by the respondent or its representatives.
In these applications Mr Edebone was at all times unrepresented. He sought compensation by these applications for a permanent impairment of his right leg. The claim was put on the basis that the right leg impairment was a consequence of excessive load and/or strain upon it by reason of a left leg injury for which he had previously received an award of compensation.
At the commencement of the hearing – and without having filed or exchanged a Statement of Facts and Contentions (and apparently without any prior notice to the applicant) – Counsel for the respondent indicated:
(i)the respondent contested whether the right leg impairment had any relationship with employment and it was intended to cross-examine the applicant as to the relationship between the injury and employment. It was submitted the connection between injury and employment was not known. When I indicated to Counsel that this seemed to be an extraordinary approach having regard to the number of hours the parties had previously been engaged in Conciliation Conferences, Counsel shrugged his shoulders and exclaimed "I wasn't there";
(ii)Counsel indicated that objection to jurisdiction would be taken, having regard to the Full Federal Court decision of Lees v Comcare 1999 56 ALD 84. Counsel submitted that no decision had ever been made by the respondent with respect to an entitlement to an impairment lump sum for the right leg and that the only decision before the Tribunal was a denial by the respondent that there was any connection between employment and injury. Counsel acknowledged that at all times prior to the day of Hearing the application had proceeded on the basis of the applicant claiming an impairment lump sum and the pre-hearing conciliation conferences had been focused on this entitlement. Nonetheless, he said he was "obliged" to argue this issue;
(iii)Counsel further submitted that in the event that the applicant did have an entitlement to an impairment lump sum, that compensation should not be awarded for it because the applicant was likely to undertake right knee replacement surgery. It was submitted in these circumstances the applicant could not demonstrate that he had a "permanent" impairment.
Counsel then:
(a)asked the Tribunal to research whether the decision in Lees v Comcare had been overturned or remained good law, because he had not had an opportunity to undertake this research and;
(b)indicated to the Tribunal that Mr Love, a consultant orthopaedic surgeon was to give evidence at the request of the respondent and would express an opinion with respect to the applicant's right ankle injury. No report had been submitted by the respondent concerning this injury prior to the hearing or at all.
With respect to the submissions of the respondent I indicated to Counsel – after a short adjournment – that the application concerning jurisdiction appeared not to have merit. I noted at page 61 of the T Documents in application V1999/1290 that the applicant apparently had a conversation with a delegate of the respondent concerning his right knee injury. At that time his left leg claim was being processed. Mr Edebone was told that he was not required to submit a new claim for this right knee but "asked to have liability extended on your left knee claim to cover your right knee". On the same day Mr Edebone elected to waive his rights to common law damages and elected, pursuant to s45 of the Safety Rehabilitation and Compensation Act 1988 "to receive compensation under the Safety Rehabilitation and Compensation Act for my permanent impairment and non-economic loss" (refer page 63).
At page 66 is a letter from Mr Edebone (undated) addressed to a delegate of the respondent requesting reconsideration of an earlier decision and giving notice that his "right knee and ankle are giving (me) considerable pain and inconvenience" by reason of having previously favoured his left leg. On 28 October 1999 another delegate of the respondent (page 67) wrote to Mr Edebone and said in part "I may be able to extend liability for these further injuries (right knee and ankle) and vary the permanent impairment determination as requested by you". At that stage the respondent had determined liability for lump sum compensation for left leg impairment on 2 October 1997 where a whole person impairment of 10% was assessed (page 64).
I was not in the circumstances impressed by the submission made by Counsel for the respondent concerning jurisdiction - on the morning of hearing. It seemed to me that the correspondence between the parties clearly demonstrated that it was the applicant's intention to recover lump sum compensation for permanent impairment of his right leg. The parties had at all times prior to the day of hearing acted on the basis that the applicant was seeking an impairment lump sum for his right leg. Mr Edebone confirmed at the commencement of the hearing that he sought no other form of compensation. The many medical reports which had been obtained by the respondent from Mr Love prior to the day of hearing concerned the connection between employment and injury and the extent of impairment. Indeed, Mr Love reversed an opinion expressed in a report of 16 May 2000 that the applicant would not be able to establish entitlement to an impairment lump sum under Tables 9.2 and 9.5. On 17 July 2000 (apparently following a discussion between Mr Edebone and Mr Love) it was reported that the applicant did have an impairment of his right leg at 10%.
The decisions under review in these proceedings do not specifically determine entitlement for an impairment lump sum of the applicant's right leg. Yet the respondent must have known at all relevant times that that was the compensation sought. Mr Edebone was at all times unrepresented, has no legal qualifications and would not be expected to dispute the absence of a determination, which specifically determined liability with respect to impairment.
Nonetheless, the respondent should have dealt with the applicant's request for an impairment lump sum by determining liability. As may be seen from the above correspondence the applicant was told by an officer of the respondent that a specific claim form was not required and the letter to the applicant from a delegate of the respondent at page 67 specifically records an appreciation on the part of the respondent that an impairment lump sum was sought as the compensation payable for the right leg injury.
I am in the circumstances satisfied that the decision the respondent should have recorded was the respondent's liability with respect to entitlement to an impairment lump sum, but failed to do so. I am not satisfied that the Tribunal is without power to review the decision of the respondent. I am satisfied the applicant's request for an impairment lump sum can be considered (refer re Filewood and Comcare 2000 58 ALD 314).
ray carl edebone
Mr Edebone is 63 years of age and is presently employed at the William Angliss College in Melbourne. He was previously a motor mechanic in the employ of the Australia Army. For 12 years he worked on motor vehicles and was engaged in production control in Army workshops. He then voluntary resigned from the Army and took up employment with the Shell Motor Company as a representative where he was engaged in administrative work and stocktaking for approximately 10 years. He then obtained employment as a wholesale wine and spirit merchant for about 4 years. He returned to the Shell Motor Company for 12 months and 18 years ago commenced employment with the William Angliss College as a stock controller.
Mr Edebone suffered a left knee injury when in the employ of the Army and during a game of football. This was not in contention in these proceedings and liability had previously been admitted by the respondent for the injury and for the payment of an impairment lump sum. That decision was not contested.
Mr Edebone said that he subsequently favoured his left leg by assuming greater weight bearing on his right leg. He had noticed some years ago that his right leg, particularly his right knee and right ankle, became painful and he noticed a grinding sensation in his right knee, cramping at night and swelling from time to time in his knee.
In cross-examination Mr Edebone said that he commenced treatment with Dr Hall, a medical practitioner engaged by the William Angliss College, in approximately June 1994. He had had no prior right leg injuries except for the removal of a thrombosis which had lodged behind his right knee after a 150 kilo block of meat fell on to his right calf at work at William Angliss. He was incapacitated then for about three weeks and was paid Workcare benefits. He did not claim any impairment lump sum or any other form of compensation for the thrombosis affecting his right leg.
In 1993 Mr Edebone attended Mr Peter Wilson, an Orthopaedic Surgeon in Melbourne because of left knee pain. Mr Edebone had previously had a left menisectomy and at that time he noted cramping and collection of fluid around his left knee.
The applicant was unsure when he first noticed right leg discomfort. References were made throughout the T Documents and medical reports to histories taken by doctors. The letter of the respondent at page 61 of the T Documents in V1999/1290 (dated 8 August 1997) refers to a conversation between the applicant and a delegate of the respondent where the applicant spoke about his "right knee due to the injury to (the left knee)". Mr Edebone estimated that his right knee was at that stage "progressively worsening" and he estimated that he had been in discomfort in his right leg for 18 months to 2 years prior to that time. He understood that the injury gradually built up from where it used to "creek and catch" to eventually becoming painful.
marguerite hall
Ms Hall is a legally qualified medical practitioner engaged by the William Angliss Health Centre in Latrobe Street, Melbourne. She has treated Mr Edebone since 1994. She had a note of the applicant complaining of right ankle pain of about 2 months duration at February 1997.
At November 1997 she had a history of the applicant having "right knee problems" where she referred him for xrays. Ms Hall said that xrays taken in November 1997 did not show any marked degeneration yet xrays taken in 1998 did demonstrate degeneration which was marked. She said that she did not retain the films but they had been observed by Mr Love a medical practitioner who had been engaged by the respondent.
bruce love
Mr Love is an Orthopaedic Surgeon to whom the applicant was referred for opinion by the respondent. He provided 7 reports at the request of the respondent dated 28 April 1997, 29 January 1998, 15 February 2000, 16 May 2000, 2 reports of 10 July 2000 and another report of 17 July 2000 (filed 3 working days prior to the hearing on 17 October 2000).
On balance he was satisfied that the applicant did have an impairment of his right leg by reason of his right knee injury and that it was associated with the applicant favouring his left leg by assuming greater weight bearing on his right leg. He said that the thrombosis in 1989 at the William Angliss College had no relevance at all to the applicant's right knee injury. Mr Love was also of the opinion that the applicant had injuries to both ankles yet he could find no association between those injuries and the knee injuries.
When he was asked to comment that there appeared not to have been any history taken by any doctors of complaint by the applicant of right knee pain prior to 1997, Mr Love said that the right knee "might reasonably have become symptomatic because of extra stresses on it because of the left leg problem".
Mr Love was taken to his report of 15 February 2000 where at page 2 he records "my opinion however is that on balance I am of the opinion that his right leg symptoms have been contributed to by the extra load put on them as a result of the prolonged incapacity in the left leg". Mr Love said that the word "incapacity" as it appears in his report refers to pain (as opposed to what is otherwise ordinarily understood to be "incapacity"). Mr Love, the respondent's consultant supported the applicant's case. Why this issue was contested remains obscure.
Mr Love was also of the opinion that the applicant was a candidate for right knee replacement and said that the chances of the right knee surviving 10 years with a replacement would be in the vicinity of 95%.
conclusion and reasons for decision
I am satisfied on the evidence heard from Mr Edebone and from Mr Love and from Dr Hall that an association does exist between the prior compensable left knee injury and the subsequent right knee injury. I am satisfied that the applicant has abnormally assumed greater weight bearing upon his right leg by reason of the prior left leg injury and that the right leg injury is compensable. It follows therefore that the respondent does have liability for that injury.
I can find nothing in the documents filed or in the evidence heard to associate the right ankle injury with either the left or the right knee. This part of the application must be set aside.
I am satisfied also on the probabilities, having heard from Mr Edebone, having read the reports of Mr Love and Dr Hall and having observed the criteria applicable for assessment of compensation for permanent impairment of the right leg by reason of the right knee injury under the Comcare Guide to the Assessment of the Degree of Permanent Impairment ('the Guide') that the applicant:
(i)does have a permanent impairment;
(ii)which may be assessed at 10%; and
(iii)the applicant has an entitlement to compensation for this injury which is now payable.
I acknowledge that Mr Love has provided a prognosis of the applicant requiring "bilateral knee joint replacements in the next decade of life" (refer report of 15 February 2000). Mr Edebone said that he was not presently minded to undertake the surgery and did not know whether he would have it. He said he would "avoid it" if he could.
I acknowledge that the applicant may have an impairment of each leg at less than 10% if surgery is undertaken yet it would not be appropriate to deny compensation when it is not known whether the applicant will have surgery at all. It also assumes that even if the applicant were to undertake surgery that he would be left with an impairment of less than 10%. I am not prepared to make that prophecy.
As I understand the operation of the Guide, an assessment of compensation for whole person impairment will need to take account of the impairment as assessed for the left and right legs, in combination. There is no evidence of this. Similarly, there is no evidence to permit an assessment or calculation of entitlement for compensation under s.27. I direct that the application be remitted to the respondent for assessment of compensation payable in accordance with these reasons.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member
Signed:    Carolyn Irons    ............................................
                 Secretary
Date of Hearing  17 October 2000
Date of Decision
Solicitor for the Applicant         Unrepresented
Solicitor for the Respondent    Phillips Fox