Gioutmenis and Comcare

[2005] AATA 1159

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1159

ADMINISTRATIVE APPEALS TRIBUNAL      )              No.  N2004/1574

)  

GENERAL ADMINISTRATIVE DIVISION )

Re FOTIOS GIOUTMENIS

Applicant

And COMCARE

Respondent

DECISION

Tribunal Senior Member M D Allen

Date31 October 2005

PlaceSydney

ADMINISTRATIVE APPEALS TRIBUNAL      )          No.     N2004/1574

)  

GENERAL ADMINISTRATIVE DIVISION )            

Re fotioS gioutmenis

Applicant

And COMCARE

Respondent

DECISION

Tribunal              Senior Member M D Allen;
  Dr MEC Thorpe, Member

Date  31 October 2005

Place                   Sydney

DecisionFor the reasons given orally at the conclusion of the hearing of this matter, the decision under review is affirmed.

(Sgd) M.D. ALLEN
  ..................................................
  Presiding Member

CATCHWORDS

WORKERS’ COMPENSATION – Applicant’s claim for permanent impairment in respect of injury to left knee – Applicant later had surgery removing structure of knee joint due to cancer of the knee – application of the doctrine of novus actus interveniens  - decision under review affirmed.

Jebb v Repatriation Commission (1988) 80 ALR 329

Migge v Wormald Brothers Industries Limited  (1973) 47 ALJR 236

Re Sadek & Commonwealth (1988) 14 ALD 769

REASONS FOR DECISION

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3.        The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Senior Member M.D Allen; Dr M E C Thorpe,      Member

Signed:         (E.Pope)
          ..................................................................................……………………………….

Associate

Date of Hearing  31 October 2005

Date of Decision  31 October 2005

Counsel for Applicant                  Mr A Campbell

Solicitor for Applicant                   Remington & Co Solicitors

Counsel for Respondent             Mr G Elliott

Solicitor for Respondent              Phillips Fox Lawyers

DRAFT DECISION  
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2004/1574
By MR M.D. ALLEN, Senior Member and DR M.E.C. THORPE, Member
GIOUTMENIS v COMCARE
SYDNEY, MONDAY, 31 OCTOBER 2005

MR ALLEN:   The applicant was injured on 12 September 2001 in the course of his employment.  As a result of that injury the respondent accepted liability for the condition described as “strain of cruciate ligament left knee” and paid for medical expenses including an arthroscopy. 

On 9 May 2003, the applicant submitted a claim for permanent impairment pursuant to section 24 of the Safety Rehabilitation and Compensation Act 1988.  Subsection (1) of section 24 reads:

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.

Subsection (2) then reads:

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.

The term "permanent" is defined in section 4 of the SRC Act as:

Permanent means likely to continue indefinitely.

On 10 September 2002, liability in relation to the claimed injury was ceased (see the decision of the respondent at document T26 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975).  The reason for ceasing any liability and indeed, for refusing a claim for permanent impairment was that on the 14th day of June 2002 the applicant had undergone an operation resulting from a tumour which had been discovered on his left knee.  At document T18 is a letter from Professor Sekel, Orthopaedic Surgeon, which was sent to the respondent, which reads:

Urgent permission is sought for an en block restriction of the tumour with prosthesis and major bulk allografting to replace the proximal tibia to be performed as per the attached medical report.

The report of Professor Sekel dated 20 May 2002 reads, inter alia:

Guessing a diagnosis from the radiology, Mr Gioutmenis most likely has a giant cell tumour occupying the end of the tibia through which fracture has occurred.

A later report by Professor Sekel, document T24, reads, inter alia:

Fotios Gioutmenis has had a giant cell tumour of the proximal end of the left tibia resected and an approximately 12 cm defect has been bypassed with an intramedullary rod, a vascularised fibular graft and a bulk allograft.  The knee was functionally arthrodesed.  The problem for which he is now being treated is not a strain of the cruciate ligament, but rather a giant cell tumour of the proximal end of the tibia which grew rapidly.  The aetiology of giant cell tumours is not traumatic or work related, and is due to a genetic change.  There is no relationship between the onset of the tumour and the CRS work trial placement in September 2001.

A later report by Dr Bornstein, Orthopaedic Surgeon, to the respondent dated 17 May 2005 states, inter alia:

On 14th June 2002 he underwent a procedure to remove the structure of the knee joint being an en block resection of the tumour with prosthetic knee replacement and bone allografting to replace the proximal tibia as treatment for this cancer.  There is no doubt that this is a massive operation and that the treatment that has been associated with his cancer, not just the surgery, will have been major.

In other words, what has been claimed by the respondent is that as the result of the surgery for the cancer in his knee, there has been a novus actus interveniens and any incapacity or impairment now suffered by the applicant in his left knee is as a result of the surgery carried out on 14 June 2002.  In our opinion, this is made quite clear by the medical reports we have had before us.  What then as to the applicant's claim for permanent impairment which, as we said, was lodged on 9 May 2003.  As was pointed out by his Honour Mr Justice Davies in Jebb v Repatriation Commission (1988) 8 ALR 285, the task of the Tribunal is to make an assessment up to and including the date of its decision.

The situation is therefore, that as at the date of our decision, namely 31 October 2005, no impairment arises as a result of the applicant's work injury but rather any impairment he now suffers is as a result of the surgery for his cancer.  In Migge v Wormald Brothers Industries Limited (1973) 47 ALJR 236, the High Court upheld an appeal in the New South Wales Court of Appeal but for our purposes, what is to be noted is that in his judgment, Chief Justice Barwick said:

For these reasons and for the reasons given by Mr Justice Mason with which I agree, I would allow the appeal.

His Honour Mr Justice Gibbs as he then was also said:

I agree and I would also express my agreement with the reasons given by Mr Justice Mason in the court below.

The judgment of his Honour Justice Mason, as he then was, is to be found in Migge v Wormald Brothers Industries Limited [1972] 2 NSWLR 29 at 44. There, his Honour said:

First, an existing incapacity results from the original injury if it follows and is caused by that injury and may properly be held so to result even if some supervening course had aggravated the effects of the original injury and prolonged the period of incapacity.  If however, the existing incapacity ought fairly to be attributed to a new cause which has intervened and ought no longer to be attributed to the original injury, it may properly be held to result from the new cause and not the original injury.

That passage was applied by Senior Member McMahon as he then was in Re Sadek & Commonwealth (1988) 14 ALD 769, where the Senior Member said at 771, after referring to Migge (supra):

Before the novus actus will be regarded as the only cause of the incapacity. it must be shown that the incapacity which would have resulted from the injury has ceased to exist and that the incapacity which does exist has resulted from the new cause as the sole cause.  In considering this observation in the light of s 45 one must always remember that one is talking about total incapacity rather than partial incapacity.  In other words, if there is a novus actus interveniens which completely displaces the prior cause of total incapacity, then s 45 has no operation.”

It seems to us that a similar circumstance exists here, that a novus actus interveniens, namely the operation to treat the cancer of the left knee has completely displaced the prior cause of any impairment to the knee.

That being so, the decision under review must be affirmed.