Fellowes and Military Rehabilitation and Compensation Commission
[2007] AATA 1740
•7 September 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1740
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/2391
GENERAL ADMINISTRATIVE DIVISION ) Re ROBYN CHRISTINE FELLOWES Applicant
And
MILITARY REHABILITATION & COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Deputy President P E Hack SC Date7 September 2007
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
..............................................
Deputy President
CATCHWORDS
COMPENSATION – liability for left and right knee conditions – level of permanent impairment under Table 9.5 of the Guide – whether separate injuries equate to a separate impairment rating – whether single rating should be given – applicant has two separate injuries that result in the same impairment with a single rating of permanent impairment - decision under review affirmed
CASE LAW – Comcare v Van Grinsven – Canute v Comcare
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 4, 14, 24, 28(1), 147
Re Van Grinsven v Comcare (2001) 33 AAR 531
Comcare v Van Grinsven (2002) 117 FCR 169
Canute v Comcare (2006) 226 CLR 535
Comcare v Campbell [1999] FCA 1367
Canute v Comcare [2004] AATA 627
Canute v Comcare (2005) 40 AAR 327
Comcare v Canute (2005) 148 FLR 232
REASONS FOR DECISION
7 September 2007 Deputy President P E Hack SC Introduction
1.The legal issue in this case, at one level, is whether the decision of the Full Court of the Federal Court in Comcare v Van Grinsven[1] remains good law having regard to the subsequent decision of the High Court in Canute v Comcare[2].
[1] (2002) 117 FCR 169.
[2] (2006) 226 CLR 535.
2.Mr Hiley QC, who led Mr King-Scott of counsel for the applicant, Ms Robyn Fellowes, submitted that Van Grinsven ought be taken to have been overruled by Canute and that, in circumstances where a person sustains separate injuries to each lower limb giving rise to the same level of impairment under Table 9.5 of the Guide to the Assessment of the Degree of Permanent Impairment[3] (“the Guide”), the principles of assessment contained in the Guide permit a separate impairment rating to be attributed to each lower limb. Mr Hiley submitted, in the alternative, that if I were to conclude that Van Grinsven remained good law, I ought conclude that it was wrongly decided, although he accepted that in those circumstances I would remain bound by it.
[3] The first edition, that approved by notice dated 27 July 1989.
3.Mr Howe of counsel, who appeared with Mr Dube for the respondent, the Military Rehabilitation and Compensation Commission (“the Commission”), submitted that Van Grinsven remained the law and that, in these circumstances, a single rating was to be attributed under Table 9.5 to the person’s lower limb.
Background
4.The facts are not in dispute[4]. Ms Fellowes enlisted in the Army in 1986 and remains a serving member.
[4] See Exhibit 3.
5.In 1986 Ms Fellowes suffered a left knee injury which, as a result of work-related factors, resulted in the condition of left chrondomalacia patellae (“the left knee condition”). The left knee condition is permanent. It does not result in any loss of range of movement of the left knee under Table 9.2 of the Guide. As a result of the left knee condition, Ms Fellowes can rise to a standing position and walk but has difficulty with grades and steps (but not distances); the left knee condition answers the description of a 10% level of impairment under Table 9.5 of the Guide.
6.In 1987 Ms Fellowes suffered another injury, this time to her right knee, which, as a result of work-related factors, resulted in a condition of right chrondomalacia patellae (“the right knee condition”). The right knee condition is permanent. It does not result in any loss of range of movement under Table 9.2 of the Guide. As a result of the right knee condition Ms Fellowes can rise to a standing position and walk but she has difficulty with grades and steps (but not distances). Again, the right knee condition answers the description of a 10% level of impairment under Table 9.5 of the Guide.
7.It is accepted that if Ms Fellowes suffered from no permanent impairment other than that attributable to the left knee condition she would be entitled to compensation in respect of a 10% level of impairment under Table 9.5 of the Guide, and that if she suffered no other impairment other than that attributable to the right knee condition she would have the same entitlement.
8.In December 2005 Ms Fellowes lodged claims with the Commission for compensation for each condition. On 22 January 2007 the Commission determined that it was liable to pay Ms Fellowes compensation for the left knee condition on the basis that she had a 10% whole person impairment under Table 9.5 of the Guide. Ms Fellowes was paid that compensation.
9.On 22 February 2007 the Commission accepted liability for the right knee condition. Then, in a determination of 22 March 2007, the Commission rejected liability to pay a lump sum for permanent impairment in relation to the right knee condition on the basis that Ms Fellowes had already been compensated for a 10% permanent impairment under Table 9.5 of the Guide. That determination was affirmed on reconsideration on 22 May 2007.
10.Ms Fellowes now seeks a review of the Commission’s reviewable decision constituted by the reconsideration decision of 22 May 2007.
The Legislation and its Proper Construction
11.The Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) establishes a scheme for the payment of compensation to Commonwealth employees, including members of the Defence Force. The general entitlement to compensation is provided for by s 14 of the SRC Act. A combination of that section and s 147 of the SRC Act[5] makes the Commission liable to pay compensation, in accordance with the SRC Act, in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. Divisions 2, 3, and 4 within Part II make provision for the amount of compensation liable to be paid for different types of injuries: “Injuries resulting in death” (Div. 2), “Injuries resulting in incapacity for work” (Div. 3), and “Injuries resulting in impairment” (Div 4). Division 4 is the focus of attention in these proceedings.
[5] Which deems references in Part II to Comcare as being references to the Commission.
12.So far as is presently relevant, s 24 of the SRC Act, contained within Division 4, is in these terms:
“(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)…
(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.
(7A)…
(8)…
(9)For the purposes of this section, the maximum amount is $80,000.”
13.As can be seen, the amount of compensation payable is determined by reference to the degree of permanent impairment as calculated by the Commission (or this Tribunal in its stead) as a percentage, and that calculation is to be undertaken by reference to the Guide.
14.It is now necessary to have regard to the definition of “injury” in s 4 of the SRC Act. That definition, at the material time[6], was in these terms:
[6] The definitions of the terms “injury” and “disease” were amended in minor respects by the Safety, Rehabilitation and Compensation and other Legislation Amendment Act 2007 but the earlier definitions of those terms continue to apply to injuries sustained prior to 12 April 2007.
“(1)In this Act, unless the contrary intention appears:
…
injury means:(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
…”
15.While there is no contest that each of the left leg condition and the right leg condition constituted an injury as defined it is useful, given Ms Fellowes’ reliance upon the decision in Canute, to consider what the Court there said about the notion of “injury”[7]:
“[10] At this juncture, three things may be observed about the concept of ‘an injury’. First, the Act does not oblige Comcare to pay compensation in respect of an employee's impairment; it is liable to pay compensation in respect of ‘the injury’. Secondly, the term ‘injury’ is not used in the Act in the sense of ‘workplace accident’. The definition of ‘injury’ is expressed in terms of the resultant effect of an incident or ailment upon the employee's body. Thirdly, the term ‘injury’ is not used in a global sense to describe the general condition of the employee following an incident. The Act refers disjunctively to ‘disease’ or ‘physical or mental’ injuries and, at least to that extent, it assumes that an employee may sustain more than one ‘injury’. The use in s 24(1) of the indefinite article in the expression ‘an injury’ reinforces that conclusion.” [footnotes omitted]
[7] 226 CLR 535 at 540 at para. [10].
16.The case for Ms Fellowes emphasises the obligation to pay compensation in respect of an employee’s impairment. The expression “impairment” is defined in s 4 of the SRC Act as meaning:
“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.”
The case for the Commission emphasises the use of both “part of the body” and “function” within that definition.
17.As was observed in Canute, content is given to the expression “the degree of permanent impairment of the employee” by reference to the Guide. The Guide is subordinate legislation. Section 28(1) of the SRC Act deals with the content of the Guide in terms of establishing criteria for permanent impairment and non-economic loss of an employee, and the methods of expressing this impairment and loss as a percentage.
18.Given the arguments of the parties, the following passage from the Guide is relevant[8]:
“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. ” [emphasis added]
[8] At page 5.
19.Part 9 of the Tables of the Guide deals with the musculo-skeletal system. Tables 9.4 and 9.5 deal with limb function-upper limb and limb function-lower limb respectively. There is an important difference in the way the descriptions of impairment are expressed in these two Tables. The descriptions in Table 9.4 are expressed by reference to use of the limb. Thus the 10% description is “Can use limb for self care AND grasping and holding BUT has difficulty with digital dexterity.” The 30% description uses similar language - “Retains some use of limb …”. That seems to recognize the reality that upper limbs can be used independently in daily life; that is, that an impairment to one limb does not necessarily involve an impairment of the functions performed by the other upper limb.
20.Table 9.6, on the other hand, seems to acknowledge that the lower limbs operate together and that an impairment to one lower limb will involve impairment of functions which are invariably performed by both. Thus, the descriptions deal with the capacity to “rise to standing position and walk…”.
The Decision in Van Grinsven
21.Given the fundamental proposition advanced by Ms Fellowes that Van Grinsven ought to be considered to have been impliedly overruled by Canute, I first turn to the decision in Van Grinsven before examining Canute.
22.Mr Van Grinsven’s situation was, for all practical purposes, identical to that of Ms Fellowes. In one incident he had injured his left knee and in a later unrelated incident he injured his right knee. The condition in each case was diagnosed as chrondomalacia patellae. It was accepted that the level of impairment of the right knee was 20% by reference to Table 9.5 and that of the left knee also 20% by reference to the same Table. Comcare determined that the level of impairment was 20%.
23.In the Tribunal, Deputy President Forgie would have affirmed this decision but for the decision of Einfeld J in Comcare v Campbell[9]. The Deputy President’s reasoning was expressed in this way[10]:
“41. It follows, in my view, that the permanent impairment arising from each of Mr Van Grinsven's injuries should be assessed separately. That is not an end of the matter, though. Regard must also be had to the further principle of assessment at the beginning of the Guide. Those principles state that, where ` ... two or more injuries give rise to the same impairment a single rating only should be given'. It follows that if Mr Van Grinsven should have the same impairment, he is given only a single rating ...
42. The issue of whether a person has the same impairment is relevant in the case of Table 9.5 for it may be that Mr Van Grinsven will have the same level of loss of function whether it is assessed in relation to the impairment he has suffered from one injury or two. If, for example, he cannot stand or walk as a result of the injury to his left knee and he cannot stand or walk as a result of the injury to his right knee, he has the same impairment. It would follow from an application of the principles of assessment to the Guide that Mr Van Grinsven should be assessed as having only a single rating ...
...
47. In assessing the same degree of impairment under Table 9.5 in respect of each impairment, it is clear that each injury has led to the same impairment i.e that Mr Van Grinsven could rise to a standing position and walk but that he had difficulty with grades, steps and distances as a result of the injury to either his left or his right knee ... In view of the evidence in this case, I find that the level of impairment resulting from each of Mr Van Grinsven's knee injuries is 20%. Were I not bound by the judgement in Comcare v Campbell, I would find that Mr Van Grinsven's impairment rating under Table 9.5 is 20% and ... would decide that his permanent impairment should be assessed as 20%. I would, therefore, have affirmed the decision. Applying the principles in Comcare v Campbell, however, I must combine the two degrees of impairment under Table 14.1. That leads to a decision that Mr Van Grinsven's permanent impairment arising from his compensable injuries is 36%."[9] [1999] FCA 1367.
[10] Van Grinsven v Comcare (2001) 33 AAR 531 at 542 – 544. In the present case, the Commission adopted this reasoning as correctly stating the law.
24.In the Full Court, the question for decision on the appeal from the decision of Deputy President Forgie was described in this way[11]:
“[1]The question for decision on this appeal is whether Table 9.5 of the Guide to the Assessment of the Degree of Permanent Impairment … prepared in accordance with s 28 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) …, when construed in accordance with the requirements of s 24 and the principles of assessment contained in the Guide, requires that where a person sustains separate injuries to each lower limb giving rise to the same ‘level of impairment’ in the Table, a single impairment rating be attributed under the Table to the person's lower limbs, or permits a separate impairment rating to be attributed to each lower limb.”
[11] 117 FCR 169 at 170.
25.The reasoning of the Court in allowing the appeal (and concluding that Comcare v Campbell[12] had been wrongly decided) appears from this passage of the judgement of the Court[13]:
“[14] In our view, the question is one of construction of the Guide, read in context. Table 9.2 in conjunction with Table 14.1 is to be used to make an impairment assessment in relation to two or more lower joint injuries. Table 9.2 assigns whole person impairment values to various singular injuries such as ‘loss of less than half normal range of movement of hip or knee’ and ‘Ankylosis of hip or knee’. Note 4 to Table 9.2 states that ‘Values are for one joint only. Where more than one joint is affected, values should be combined using the Combined Values Table (Table 14.1)’. Dr Pentis and Ms Bertoldi both assessed each of the respondent's knee injuries as having a 10 per cent Whole Person Impairment under Table 9.2. By reference to Table 14.1 the respondent would thus have a total whole person impairment of 19 per cent when using what may be called a combined singular injury assessment approach. Table 9.2 is one of the Tables dealing with impairments falling within the words ‘the loss of the use, or the damage or malfunction, of any part of the body’ in the definition of ‘impairment’, namely joint impairment. Table 9.5 adopts a different approach. It is directed primarily to the loss of bodily function part of the definition of ‘impairment’. Thus the heading ‘Limb Function -- Lower Limb’. Table 9.5 enables an assessment to be made of the level of impairment in the performance of various functions, such as whether the injured person can walk or stand and to what extent. The Table has no equivalent to Note 4 to Table 9.2 referring the assessor to Table 14.1. This suggests that Table 9.5 constitutes a self-contained assessment approach alternative to the combined singular injury assessment method in Table 9.2. A note in the form of Note 4 would be inappropriate as a direction forming part of Table 9.5. The Table is concerned with the impairment of joints, and would not make sense as part of the function-based Table 9.5. For the same reason resort cannot be had to Table 14.1 via the direction under Table 9.1. It too refers only to joint impairment. In the case at hand, it is obviously preferable for the respondent to rely on the approach in Table 9.5 as this gives him a higher total whole person impairment of 20 per cent. Had the respondent's injuries also resulted in his two ankles each having lost half their normal range of movement (10 per cent whole person impairment per ankle), the opposite would be true. It would be to the respondent's advantage to rely on Table 9.2 as this, in conjunction with Table 14.1, would give him a whole person impairment of 34 per cent.”
[12] [1999] FCA 1367.
[13] 117 FCR 169 at 175-6.
26.The same argument that Ms Fellowes advances in the present case was rejected by the Court in this way[14]:
“[15]The respondent contends that because the heading of Table 9.5, Limb Function -- Lower Limb, is in the singular, each knee, being part of an individual limb, is to be assessed individually and the two whole person impairment percentages combined using Table 14.1. First, we again observe that there is no Table 14.1 direction in Table 9.5 and that such a direction would be inappropriate there. Secondly, this submission ignores the specific type of ‘impairment’ dealt with in Table 9.5. At the start of the Guide, the term ‘impairment’ is defined more or less in the terms of the definition in the Act – ‘the loss, loss of use, damage or malfunction, of any part of the body, bodily system or function or part of such system or function’. Table 9.5 deals with but part of the definition -- loss of bodily function. The assessor is not asked to quantify impairment by reference to the injured person's capacity to move a singular limb – ‘loss of use of part of the body’. Rather the Table asks for an assessment of totality of motion or function, for example – ‘Can rise to standing position and walk but has difficulty with grades and steps’.”
[14] 117 FCR 169 at 176.
The Decision in Canute
27.There was no issue of permanent impairment in Canute. That case concerned the proper approach to be taken when there were subsequent psychological consequences of a physical injury that had already been the subject of compensation for permanent impairment. The High Court expressed the issue in this way[15]:
“The issue involves the proper principles to be applied in determining the liability of Comcare under the Act in respect of a psychiatric injury sustained by the appellant employee, Mr Canute, subsequently to an initial physical injury he suffered. Both injuries arose out of, or in the course of, his employment.”
[15] 226 CLR 535 at 537 at para [1].
28.Comcare and the Tribunal[16] took the view that the psychological sequelae were part of the earlier physical injury to Mr Canute’s back. Hill J, who heard the appeal from the Tribunal’s decision, allowed the appeal, set aside the decision and remitted the matter to the Tribunal for further hearing[17]. Comcare’s appeal was allowed by a majority of the Full Court[18].
[16] Canute and Comcare [2004] AATA 627.
[17] Canute v Comcare (2005) 40 AAR 327.
[18] Comcare v Canute (2005) 148 FCR 232. (French & Stone JJ, Gyles J. contra)
29.The conclusion of the majority appears from the head note[19]:
“[there was but a single ‘injury’] If a second injury caused by an initial injury falls within the definition of impairment, that consequential injury is to be treated as an aspect of the impairment created by the initial injury and the provisions of s 25(4) of the SRA will apply. That consequential injury will not give rise to a discrete head of liability as a separate compensable injury.”
[19] 148 FCR 232 at 232.
30.The way in which Gyles J, in dissent, expressed the issue arising in the case is of some relevance given the arguments for Ms Fellowes. His Honour said[20]:
“[80] This appeal concerns a short but significant issue concerning the operation of the lump sum provisions of the Commonwealth workers' compensation scheme known as Comcare -- namely the effect of a condition that is the result of another compensable injury, which is different in kind from that injury, and gives rise to a separate and distinct impairment. The particular question to be answered is the operation of s 25(4) of the Safety, Rehabilitation and Compensation Act 1988 Cth (the Act) in circumstances where the second condition occurs or is recognised after permanent compensation has been awarded for the original injury.” [emphasis added]
[20] 148 FCR 232 at 253.
31.Canute did not directly concern questions of assessment of permanent impairment, but the argument for Ms Fellowes places particular emphasis upon these observations of the High Court about the work performed by the Guide in the performance of that task[21]:
“[14]… The Guide is to be approached through the prism of each ‘injury’. The terms of s 24(5) are quite clear; Comcare is to assess the degree of permanent impairment of the employee ‘resulting from an injury’.”
[21] 226 CLR 535 at 542.
Reasoning
32.I do not accept, as Ms Fellowes argues, that Canute should be regarded as having impliedly overruled Van Grinsven. The approach by the Commission expressly acknowledges that Ms Fellowes has two injuries. The decision under review recognizes that there are separate and distinct injuries that Ms Fellowes has sustained. But, unlike the situation in Canute, those separate injuries do not result in separate and distinct impairments.
33.Equally, I do not accept that Van Grinsven was wrongly decided. On the contrary it seems to me, with respect, to be plainly correct. The situation of Ms Fellowes is no different to that of Mr Van Grinsven – she does suffer from two knee injuries but for the purposes of Table 9.5 those injuries together give rise to the one impairment, the ability to rise to a standing position and to walk but difficulty with grades and steps.
34.It is correct to say, as do the submissions for Ms Fellowes[22], that she has sustained two separate and distinct injuries that each give rise to a liability upon the Commission to pay compensation. But s 24(5) of the SRC Act requires that that compensation be determined having regard to the degree of permanent impairment resulting from the injury by reference to the provisions of the Guide. And the Guide directs explicitly that two or more separate injuries that give rise to the same impairment result in a single rating of impairment.
[22] Exhibit 3, paras. 5 & 6.
35.To view the matter in this way is not to “disentitle”[23] Ms Fellowes to compensation or even to “disapply”[24] s 24 of the SRC Act. Rather it gives primacy to the notion that the scheme of the SRC Act is not one that involves, relevantly, compensation for injuries that cause permanent impairment. It is a scheme that provides compensation for injuries to the extent of the permanent impairment. The fact of permanent impairment creates a liability in the Commission to pay compensation but the amount of that liability is determined by reference to the extent of that permanent impairment having regard to the Guide.
[23] The term used in paragraph 9 of her submissions.
[24] See Canute 226 CLR 535 at 546 at para [30].
Conclusion
36.The present case falls to be determined in accordance with Van Grinsven. That case binds me and, even were I to be satisfied that it was wrongly decided (and, on the contrary, I consider it to have been correctly decided) I would be obliged to follow it.
37.It follows that I would affirm the decision under review.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed: .....................................................................................
Eleanor O’Gorman, AssociateDate of Hearing 29 August 2007
Date of Decision 7 September 2007
Counsel for the Applicant Mr G Hiley QC & Mr R King-Scott
Solicitor for the Applicant D’Arcys Solicitors
Counsel for the Respondent Mr T Howe
Solicitor for the Respondent Australian Government Solicitor
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