Gillett v Akc Constructions

[2010] VCC 1499

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
WORKCOVER DIVISION

SERIOUS INJURY

Case No. CI-09-03226

RODNEY GILLETT	Plaintiff
v
AKC CONSTRUCTIONS	Defendant

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JUDGE:	HIS HONOUR JUDGE BOWMAN
WHERE HELD:	Melbourne
DATE OF HEARING:	25 October 2010
DATE OF JUDGMENT:	5 November 2010
CASE MAY BE CITED AS:	Gillett v AKC Constructions
MEDIUM NEUTRAL CITATION:	[2011] VCC 1499

REASONS FOR JUDGMENT

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Catchwords: Accident Compensation Act 1985 – s.45(1)(b) – ss.98, 98A, 98C and 98E – questions sent to Medical Panel – finding by Panel that employment was a significant contributing factor to injury and injury materially contributed to industrial loss of use – injury throughout course of employment before and after 12 November 1997 – Panel had previously assessed injury after 12 November 1997 at figure which did not attract compensation – in assessing injury before 12 November 1997 Panel arrived at reduced assessment – whether this was open or of legal effect once finding of material contribution and assessment made.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Waugh	Constable Connor & Co Pty Ltd
For the Defendant	Mr N Chamings	Thompsons Lawyers
HIS HONOUR:

General background

1 In this matter, in essence I am asked to determine a preliminary point relating to the effect of certain answers given by a Medical Panel to questions forwarded to it pursuant to s.45(1)(b) of the Accident Compensation Act 1985 (“the Act”).

2          Mr M Waugh of counsel appeared on behalf of the plaintiff. Mr N Chamings of counsel appeared on behalf of the defendant. No oral evidence was adduced, and the matter proceeded by way of submissions involving referral to certain documents. The submissions in relation to this somewhat unusual point were well prepared and particularly helpful, and I was referred to a number of decisions.

Factual background

3          The following factual background is set out solely for the purposes of determining this preliminary point. As stated, no oral evidence was adduced, and these Reasons for Judgment are made on the basis of matters related by counsel as being, in essence, common ground.

4 The plaintiff was employed by the defendant as a carpenter from 12 June 1996 to 8 August 2001. He suffered injury to both knees as a result of his employment during this period, the cause being what could be described as his general duties involving kneeling, squatting, climbing and the like. Issues concerning weekly payments of compensation or the payment of medical and like expenses need not concern us. What is involved in the present dispute is a claim for lump sum compensation pursuant to ss.98 and 98A of the Act (although I note that the prayer for relief in the Statement of Claim refers only to s.98).

5 The period of the plaintiff’s employment with the defendant spans the date upon which s.98C and s.98E of the Act commenced operation. That date is 12 November 1997. In summary form, the effect of the amendments was to alter the basis upon which lump sum compensation for specified injuries is assessed. Prior to 12 November 1997, the compensation was assessed on the basis of a percentage of a fixed amount. Such percentage was in turn assessed on the basis of a permanent partial loss of use for industrial purposes. Section 98(6) makes it clear that compensation payable in this fashion was only so payable in respect of an injury that arose before 12 November 1997. I note that the heading of s.98 was “Compensation for maims”.

6 For injuries that arose on or after 12 November 1997, s.98C, in conjunction with s.98E, provided a different and far more complicated method of assessing permanent impairment and the resulting compensation. Amongst other things, this method involves complicated formulae and the use of the AMA Guides. I would point out that the heading of s.98C is “Compensation for non-economic loss”.

7 The plaintiff brought a claim for such non-economic loss. As I understand it, and as it had to be pursuant to the legislation, this was specifically for injury occurring on or after 12 November 1997. This claim was referred to a Medical Panel and dealt with in accordance with the Act. Of course, that claim was pursuant to s.98C. I was informed that the opinion of the Panel was that employment was implicated and that, in essence, the plaintiff suffered a four per cent impairment of his leg. Counsel informed me that, by reason of the threshold provisions, such an assessment was insufficient for the plaintiff to obtain any compensation. Hence, he received no compensation for the claim pursuant to s.98C.

8 The plaintiff then re-activated a long-dormant claim in relation to s.98 and s.98A. Again, both knees, and hence the legs, were the subject of the claim. In February 2010 the matter came on for hearing before His Honour Judge Wischusen. Ultimately on 4 March 2010 five questions were referred to a Medical Panel. The Panel answered those questions in a certificate dated 30 April 2010. The questions and answers are as follows:

“1.	What is the nature of the medical condition(s), if any, of the worker’s:
(a) right knee?
(b) left knee?
In the Panel’s opinion, the worker is suffering from persisting bilateral patello-femoral dysfunction, as a consequence of an aggravation of bilateral patello-femoral degenerative changes, treated surgically.
2.	Was employment with the defendant between 12 June 1996 and 11 November 1997 a significant contributing factor to any recurrence, aggravation, acceleration, exacerbation or deterioration of the worker’s:
(a) right knee condition?
(b) left knee condition?
The Panel is of the opinion that employment with the defendant between 12 June 1996 and 11 November 1997, was a significant contributing factor to an aggravation of bilateral patello-femoral degenerative changes.
3.	What is the degree of industrial loss of the worker’s:
(a) right leg?
(b) left leg?
In the Panel’s opinion, the worker has a permanent partial loss of use of the right leg of 10%, and a permanent partial loss of use of the left leg of 10%, for industrial purposes.
4.	If yes to Q2, did such recurrence, aggravation, acceleration, exacerbation or deterioration materially contribute to the industrial loss of use referred to in your answer to Q3 above?
Yes.
5.	If yes to Q2, to what extent (expressed as a percentage) did such recurrence, aggravation, acceleration, exacerbation or deterioration materially contribute to the industrial loss of use, if any, referred to in Q3?
The Panel is of the opinion that the aggravation of bilateral patello-femoral degenerative changes, occurring between 12.6.1996 and 11.11.1997, materially contributes to only ten per cent of the industrial loss of use referred to in Question 3.”

9          Whilst all questions and answers are relevant, questions 4 and 5 and the answers thereto received particular attention.

The dispute

10        Against that background, the dispute between the parties could be summarised as follows.

11 Mr Waugh contended that the plaintiff is entitled to an assessment of 10 per cent of each leg. He referred to s.68(4) of the Act which clearly specifies that the opinion of a Panel on a medical question must be accepted as final and conclusive by the court. By its answer to question 2, the Panel has found that employment between the relevant dates prior to 12 November 1997 was a significant contributing factor to an aggravation of the plaintiff’s underlying knee condition. By its answer to question 4, it has found that this materially contributed to the plaintiff’s industrial loss of use. By reason of the answer to question 3, it has assessed this loss of use at 10 per cent bilaterally. In the submission of Mr Waugh, once the Panel found that the relevant injury materially contributed to the industrial loss, the plaintiff is entitled to the assessment of loss of use assessed by it. A material contribution by the work- related injury is all that is required. He submitted that the fact that other factors may also be making a material contribution is not to the point. He referred to a considerable number of cases in this regard. Accordingly, question 5 and the answer to it are unnecessary; have no legal meaning, impact or significance in the circumstances; and should be ignored. The plaintiff, he submitted, is entitled to compensation in accordance with the unreduced assessment.

12 Mr Chamings also referred to s.68(4). He referred to authorities, and in particular to the decision of Ashley J (as he then was) in Gennimatas v Transport Accident Commission [2002] VSC 552. He submitted that question 5 was a valid medical question within the meaning of the definition contained in s.5 of the Act. Indeed, such a question is entirely consistent with sub- paragraph (c) in that definition. The Panel examined the worker and had access to extensive materials. It considered the matter and expressed its opinion accordingly in its answer to question 5. He argued that, it having expressed its opinion in relation to a valid medical question properly referred to it in accordance with the provisions of the Act, the court is bound by the answer. That answer assists the court in reaching an appropriate final decision. The Panel isolated the pertinent injury, which was that prior to 12 November 1997, and determined the degree of impairment caused by it. Accordingly, he submitted, the binding result is that the plaintiff is only entitled to the assessment as reduced by the answer to question 5. The answer to question 4 does no more than state that there has been a material contribution, but says nothing as to the extent of that contribution. The Panel having considered the available material, it then carried out the task that is often performed by courts and, in a valid and proper way, made what was in effect a retrospective assessment of the industrial loss of use as at the relevant date. Accordingly, he argued, the plaintiff is only entitled to the reduced assessment.

Ruling
13	I accept, and there was no challenge to the proposition, that question 5 is a valid question pursuant to the provisions of the Act and indeed coincides with the type of question referred to in sub-paragraph (c) of the definition contained in s.5. There is also no argument but that the reference to the Panel was carried out in accordance with the provisions of the Act. There has been nothing in the nature of a challenge to the manner in which the Panel carried out its assessment and dealt with the questions and answers. I am also appreciative of the impact and meaning of s.68(4) of the Act.
14	However, it seems to me that a central issue in this dispute is the legal effect of the finding of a material contribution by the work-related injury to the industrial loss of use of the plaintiff’s legs. The question of the impact of such a finding upon the Panel’s assessment logically follows.
15	Section 98(6) clearly contemplates an application being brought solely in respect of injury occurring before 12 November 1997. Indeed, compensation is not payable in respect of an injury occurring after that date. In the present case, the plaintiff has made two claims, and has clearly differentiated between injury suffered in the relevant periods. Counsel have informed me that his claim pursuant to s.98C for injury arising on and after 12 November 1997, resulted in a Medical Panel assessment of four per cent of each leg, and this translated into a zero payment. Thus, the plaintiff received no compensation in respect of his claim pursuant to s.98C. No question of double compensation arises. The financial result is the same as if the Panel had arrived at an assessment of zero per cent. To use the wording of s.98C, the amount of the non-economic loss is zero.
16	In relation to the plaintiff’s claim for injury sustained prior to 12 November 1997, the Medical Panel has ruled that there has been a material contribution to the plaintiff’s permanent partial use of the limbs by reason of his employment with the defendant between 12 June 1996 and 11 November 1997. What then is the legal effect of such a finding of a material contribution?
17	This is a concept which has received considerable attention over the years. I might say that the heading of s.98 “Compensation for maims”, is almost a signpost directing one’s attention towards some of the older compensation cases, the corresponding table in the Worker’s Compensation Act 1958 being known almost universally as the “Table of Maims”. The phrase is certainly one of some antiquity, and doubtless has its origin in English case law and legislation.
18	I will now turn to some of the cases dealing with situations where a worker’s permanent impairment resulted from a combination on non-compensable and compensable causes. Those situations seem to me to be parallel to that which confronts us in the present case. In answering question 5 in the manner in which it did, the panel clearly reduce the plaintiff’s entitlement by reason of non-compensable factors – that is, in effect it excluded injury sustained other than that which arose out of or in the course of the employment between 12 June 1996 and 11 November 1997. It considered only injury and resultant impairment which occurred between those dates and reduced the overall assessment of such impairment by 90 per cent. In so doing, it was, in essence, eliminating the non-compensable factors.
19	In King v Hayward (1943) 67 CLR 488, the High Court of Australia considered an application pursuant to the Worker’s Compensation Act 1926 (NSW). In that case, the injured worker, Hayward, made a claim pursuant to the Table of Maims for total loss of sight. The injury arose out of and in the course of the worker’s employment with the employer, King, in December 1941. It was admitted that Hayward had suffered an injury to the same eye in 1939 with another employer; a Medical Board had assessed the permanent loss of that eye at 95 per cent; and compensation had been paid accordingly. Following the 1941 injury when employed by King, Hayward lost the remaining five per cent of his vision in the left eye, and indeed the eyeball was removed. Latham CJ stated as follows:

“This section relates to claims made upon specific occasions by a particular employee against a particular employer; it is directed to determining the compensation payable upon each of these occasions.”

20        Paraphrasing that so as to apply it to the present situation, it could be said that the section relates to claims made by an employee against the employer in regard to injury and impairment suffered during specific occasions or periods of employment, and the section is directed to determining the compensation payable in respect of such impairment suffered on such occasion or during each statutorily defined period. (As double compensation has not been received, I leave any argument as to it to one side.)

21        His Honour also referred with approval to the decision in Bennett v General Motors Holden Ltd (1940) 40 SR (NSW) 117 in which it was said that in a claim for the loss of a hand, the injured worker was entitled to the full table amount even if a finger on that hand had been lost as a result of an earlier compensable injury for which compensation had been paid.

22        I appreciate that, in the above cases, consideration of the injuries occurred in what could be described as the reverse sequence compared to that which is currently being considered. However, they are useful. They seem to me to support the proposition that, once the necessary links have been established (here, employment being a significant contributing factor to the injury and the injury materially contributing to the industrial loss) the assessment then stands without reduction or deduction.

23        Mr Waugh directed my attention to a number of cases in which there were multiple causes or separate incidents of injury contributing to the one impairment. In Buhrmann v National Foods Milk Limited & Anor (His Honour Judge Strong, delivered 8 August 2000) his Honour was considering an application pursuant to s.135A of the Act. Whilst that is a different process, again there are useful parallels. In this case, the plaintiff had a condition of the lumbar spine which was not related to employment. He was also involved in a number of incidents which produced work-related back pain. His Honour observed as follows:

“The plaintiff must demonstrate that he sustained an injury to which his employment significantly contributed. That injury was the precipitation of the symptoms of his previously symptom-free spondylolisthesis. The plaintiff must then demonstrate that such injury, namely the precipitation of symptoms, materially contributes to his present incapacity. It does, in the sense that it began the process which produced that incapacity, albeit that non-work- related factors have contributed as well, namely the underlying spondylolisthesis and the acute episode of back pain he experienced when lifting his daughter following the termination of his employment.”

24        His Honour further stated:

“In other words…the tests for causation vis-a-vis

employment/injury/impairment in s.135A applications appear to match those for employment/injury/incapacity in WorkCover cases.”

25        The plaintiff was successful in obtaining the leave which he sought. I respectfully agree with the approach adopted by his Honour.

26        I was also referred to the decision in Harding v CIC Workers’ Compensation (Vic) Limited & Ors (His Honour Judge Rendit, delivered 1 September 1995). In his Judgment, His Honour referred to several cases, including McCann v Scottish Co-operative Laundry Association Limited (1936) 1 All ER 475, and in so doing stated as follows:

“…it was well settled that a worker who suffers a compensable incapacity and is entitled to compensation, does not lose that right because of an extraneous supervening illness or other cause which would of itself have made the worker totally incapacitated for work…”.

He also referred to the Judgment of Jordan CJ in Salisbury v Australian Iron and Steel Limited (1943) 44 SRNSW 157 and, in particular, to the following extracts:

“It is not necessary that the employment injury should be the sole cause of disability. It is sufficient if it is a contributing cause … it is the addition of the effects of the employment injury which produces incapacity, or an increased incapacity, which would not otherwise have existed. So long as these effects continue, the fact that a non-employment injury supervenes … sufficient of itself to produce the incapacity or increased incapacity, does not deprive the worker of his right to continue to receive compensation”.

“The question is, not whether the disease has caught up with the effects of the employment injury, but whether the employment has ceased to produce disabling effects”.

His Honour Judge Rendit went on to consider whether a compensable injury suffered by the plaintiff many years previously was materially contributing to the plaintiff’s present incapacity. That earlier injury, which occurred in 1973, was an injury under the Workers Compensation Act 1958. His Honour also had to consider the role of subsequent employment-related acceleration of the plaintiff’s condition in a period after the commencement of the Accident Compensation Act 1985. His Honour’s conclusion was that, as the 1973 injury was materially contributing to the plaintiff’s present incapacity, and as the injury under s.82(6) of the Accident Compensation Act had brought the plaintiff to the stage of being totally incapacitated for work, there was an injury under both the Workers Compensation Act and the Accident Compensation Act, both of which materially contributed to the plaintiff’s existing incapacity.

27        Ultimately, His Honour determined that the plaintiff’s case had been made out against both defendants and, pursuant to the legislation operating, the plaintiff was required to make an election as to whether he received compensation under the Workers Compensation Act or the Accident Compensation Act.

28        Mr Waugh also referred me to the decision of von Doussa J in Wiegand v Comcare Australia [2002] FCA 1464 in which His Honour stated:

“It is sufficient that an incident or state of affairs contributes in a material degree. That may be the case even where there are a number of other contributing factors, and other factors that have contributed to a greater degree”.

29        I was also referred to the decision of the Supreme Court of South Australia in Bratovich v Rheem (Aust) Pty Ltd [1971] 2 S.A.S.R. 33. In that case the plaintiff suffered a back injury in 1959 in compensable circumstances. He was paid compensation. In 1968 he suffered an aggravation of that injury. The quantum of compensation awarded varied considerably depending upon whether the redemption of the defendant’s liability was calculated on the basis of the rates applicable in relation to the 1959 injury or those relevant to the 1968 injury. Bray CJ made the following observations:

“It is clear law that it is not necessary for an incapacity to result solely from a compensable injury before compensation is payable as a consequence of that injury … I can see no reason in the language of the statute or in logic or justice why an earlier injury would have a prejudicial effect on a workman’s right to recover for a later injury at work which would be lacking in the case of an exactly similar earlier injury at home”.

After referring to various cases, Bray CJ continued:

“… the House of Lords saw nothing wrong in making an order which would result in the workman getting compensation from two different employers from two successive accidents …”.

And:

“The fact that the incident of 1959 was one factor, perhaps the most important factor, perhaps even the substantial factor, in the production of the present state of incapacity does not, in my view, preclude liability in respect of the 1968 incident, since that was also an essential, even if a minor, factor in producing the final incapacitating condition at the time it occurred. It is irrelevant that the state of incapacity might have occurred at some time without the 1968 accident; without it it would not have happened when it did”.

30        The decision in Bratovich was subsequently referred to and cited with approval by von Doussa J in Commonwealth of Australia v Smith (1988) 10 AAR 277.

31 I agree with the argument that these cases support the general proposition that the cause or causes of a compensable injury or impairment may be multi- factorial. If the necessary statutory links have been established – namely, employment being a significant contributing factor to injury and injury making a material contribution to impairment – the injured workman is entitled to compensation in accordance with the provisions of the Act.

32        I am far from convinced that the decision of Ashley J in Gennimatas is in any way contrary to what has been set out above. Mr Chamings referred to the fact that Ashley J stated that the degree of impairment of an injured person must be connected with the Transport Accident Act 1986. The Transport Accident Commission must then determine the degree of impairment in a particular case, and decide whether any and what injury was caused by the traffic accident. Having isolated the injury, the Commission will then be in a position to determine the degree of impairment. That, with respect, makes perfect sense. I would refer to the following remarks by His Honour:

“If the Commission was to conclude that the entire degree of impairment resulted from injury attributable to one of two transport injuries, in my opinion it would not be open for it to determine that any part of the impairment resulted from injury attributable to the other injury. The positive finding should be taken to exhaust attribution of impairment. That is so even though it is a question of fact what injury results from an accident, and what degree of impairment is attributable to that injury.

Workers Compensation legislation provides a very imperfect analogy with the Act. That said, it has long been the law that where total incapacity for work resulted from compensable injury the fact that the worker thereafter became totally incapacitated for work by another compensable injury could give no entitlement to relief in respect of the latter incapacity. The situation was the same if the initial total incapacity was attributable to a non- compensable condition”.

His Honour continued:

“I have thus far assumed that in the rare type of case now under discussion it would be possible for the Commission to determine that the entire degree of late-assessed impairment was attributable to the one injury. In my view, having regard to the appropriate test of causation, that would indeed be possible. That would be the case even though the entire impairment was not present until after the occurrence of a second transport accident and further injury … It would be the case even if, viewed independently, some part of the overall degree of impairment could be attributed to another accident and resulting injury”.

33        His Honour also referred to the decision in Conkey & Sons v Miller (1977) 51 ALJR 583 in which a man died because of a series of myocardial infarctions, the last of which was not work-related. It was found that it was sufficient the death from the final infarction was probably because the first of the series caused such damage that it was probable that death would ensue from infarction subsequent to the first from which there had been no complete recovery. It is sufficient that the death or incapacity was materially contributed to by the injury – see ‘Principles of Workers Compensation’ by Hill and Bingeman at page 75.

34        In Gennimatas, his Honour appears to have taken particular note of the manner in which the case was argued before the Victorian Civil and Administrative Tribunal and found that it was open for that Tribunal to find in the manner which it did.

35        I agree with Mr Waugh that there is little, if anything, in Ashley J’s Judgment in Gennimatas which is contrary to the general propositions which have been advanced in support of the plaintiff’s position.

36 In summary, there seems to me to be ample authority for the proposition that there can be more than one cause of a compensable injury and of a compensable impairment providing the requirements of the Act are satisfied. What is essential in relation to any one work-related cause is that it materially contribute to the impairment. That has been established in the present case by reason of the findings of the Panel in relation to the work performed by the plaintiff between 12 June 1996 and 11 November 1997. That is so regardless of the fact that another Panel has found that some degree of impairment resulted from work-related injury on or after 12 November 1997 (and it is to be remembered that such finding attracted no compensation). It is also so even if, as in the present case, the Panel has made some apportionment on a basis that is uncertain.

37        It seems to me that the bottom line is that Question 5 and its answer take matters no further. In the circumstances of this case, and bearing in mind the applicable principles of law, they are irrelevant. Injury received by the plaintiff at work between 12 June 1996 and 11 November 1997 may have been only one of a number of factors causatively linked to the injury. However, the Medical Panel has found that such work was a significant contributing factor to an aggravation of bilateral patello-femoral degenerative changes. It found that such injury materially contributed to the industrial loss assessed by it at 10 per cent of each leg. Once those findings have been made, there is nothing more to be said. There is no issue of double compensation, because the plaintiff has received none in relation to any other cause of his industrial loss. A Panel has made a finding which must be accepted, the result of which finding is that the plaintiff is entitled to no compensation for injuries sustained after 12 November 1997. One might speculate that the Panel answered the question in the manner which it did on the basis of some sort of pro-rata apportionment, taking into account the plaintiff’s entire working life. However, that remains. In the circumstances of this case, it would be an irrelevant consideration in any event once the Panel found that employment during the relevant period was a significant contributing factor to injury and injury materially contributed to industrial loss, which it assessed, its task was complete. A work-related injury had been found to materially contribute to an impairment which had been assessed. That, in its entirety, is the relevant assessment.

Conclusion

38 Pursuant to s.68(4) of the Act, I accept the opinion of the Medical Panel as set out in their answers to Questions 1 to 4, which questions were forwarded for their consideration. That results in a finding that the plaintiff’s employment with the defendant between 12 June 1996 and 11 November 1997 was a significant contributing factor to an aggravation of bilateral patello-femoral degenerative changes and such injury materially contributed to the industrial loss of use assessed by the Panel as being 10 per cent of each leg. The answer to Question 5 is of no legal effect and is irrelevant. I shall hear the parties as to the future conduct of this case and as to any orders that are required.