Jeffrey Wade and Military Rehabilitation and Compensation Commission

[2014] AATA 306

[2014] AATA 306  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/3899
Re	Jeffrey Wade
APPLICANT
And	Military Rehabilitation and Compensation Commission
RESPONDENT

DECISION

Tribunal	Deputy President PE Hack SC
Date	16 May 2014
Place	Brisbane

The decision under review is affirmed.

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Deputy President PE Hack SC

CATCHWORDS

COMPENSATION – liability for permanent impairment- application of legislation – whether superseded Act applies – injury – whether two distinct injuries supported on the evidence.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) (the 1988 Act) ss 4(1), 5A, 5B, 7(4), 14,  24, 124(1A), 124(4), 145.

Commonwealth Employees’ Compensation Act 1930 (Cth) s 12(5), Sch 3.

CASES

Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535.

Fellowes v Military Rehabilitation & Compensation Commission [2009] HCA 38; (2009) 240 CLR 28.

Robson v Military Rehabilitation & Compensation Commission [2013] FCAFC 101[ ; (2013) 214 FCR 1.

Wade and Military Rehabilitation and Compensation Commission [2007] AATA 1182 (28 March 2007).

REASONS FOR DECISION

Deputy President PE Hack SC

9 May 2014

Introduction

1. Mr Jeffrey Wade served in the Royal Australian Navy between April 1960 and April 1962.  In June 1961, and in the course of his duty, Mr Wade injured his left knee.  In June 2000 he sought compensation for that injury.  Mr Wade's claim was initially rejected but in February 2006,[1] on reconsideration, liability was accepted by the respondent, the Military Rehabilitation and Compensation Commission, for a condition described as "swollen left knee".  Subsequently, in May 2006, liability was extended to include the condition of "osteoarthritis of the left knee". At the same time, the Commission accepted that it was liable to pay Mr Wade compensation for permanent impairment.

   [1]The delay came about because Mr Wade did not seek reconsideration until January 2006.

2. In these proceedings, Mr Wade contends that he has not been paid the compensation for permanent impairment to which he is entitled.  For the reasons that follow I have come to the conclusion that the Commission’s decision was correct and should be affirmed.

   The legislation

3. By virtue of ss 14 and 145 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the 1988 Act), the Commission is liable to pay compensation to Mr Wade, in accordance with the 1988 Act, in respect of an injury suffered by him if the injury results in death, incapacity for work, or impairment. The term "injury" is defined by s 5A of the 1988 Act to mean either a "disease" suffered by an employee or a physical or mental injury arising out of, or in the course of, the employee's employment or the aggravation of a physical or mental injury if the aggravation arose out of, or in the course of, the employment.[2]  In turn, "disease" is defined to mean,[3]

   (a) an ailment suffered by an employee; or

   (b) an aggravation of such an ailment;

   that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee. 

   [2]The general principle is subject to a presently irrelevant exception.

   [3]           Section 5B, Safety, Rehabilitation and Compensation Act.

4. The present case concerns the Commission's liability to pay compensation for injuries resulting in permanent impairment.  That liability is dealt with by s 24 of the 1988 Act 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) 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.

   (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.

   …

   The liability to pay compensation under this head arises where an injury to an employee results in "permanent impairment".  The expression "impairment" is defined in s 4(1) of the 1988 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. 

   Permanent means "likely to continue indefinitely".

5. The age of the original event where Mr Wade was injured requires reference to the transitional provisions in Part X of the 1988 Act.  Subject to the other provisions within that Part, the 1988 Act applies in relation to injuries, losses or damage suffered by an employee "whether before or after the commencing day".[4] The commencing day was 1 December 1988.

   [4]See s 124(1), Safety, Rehabilitation and Compensation Act.

6. In 1961, when Mr Wade’s knee was injured, the Act dealing with compensation was the Commonwealth Employees’ Compensation Act 1930 (Cth) (the 1930 Act). By virtue of s 124(1A) of the 1988 Act, Mr Wade is entitled to compensation under the 1988 Act in respect of an injury suffered before 1 December 1988 if compensation was, or would have been, payable to him under the 1930 Act. The amount of that compensation was dealt with in s 124(4) of the 1988 Act in these terms:

   (4)The amount of compensation (if any) that a person is, by virtue of this section, entitled to receive under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing day, shall be the same as the amount of the compensation that would have been payable to that person, if this Act had not been enacted, under:

   (a)where the impairment or death occurred before the commencement of the 1930 Act—the 1912 Act;

   (b)where the impairment or death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act—the 1930 Act as in force when the impairment or death occurred; or

   (c)in any other case—the 1971 Act as in force when the impairment or death occurred.

7. The 1930 Act dealt with permanent impairment in a quite different way to the 1988 Act. Section 12(5) of the 1930 Act provided:

   Where an employee sustains an injury which causes partial and permanent loss of the efficient use of a part of the body specified in the Third Schedule to this Act in and for the purposes of his employment at the date of injury, there shall be payable an amount of compensation equivalent to such percentage of the amount of compensation payable under this section in respect of the loss of that part as is equal to the percentage of the diminution of the efficient use of that part.  

   One of the parts of the body specified in the Third Schedule was "loss of leg above knee". Thus the focus of the 1930 Act was on loss of effective use of a part of the body rather than the whole person impairment which is the focus of the 1988 Act and the approved Guide made under the 1988 Act.

8. Mr Wade placed some reliance on s 7(4) of the 1988 Act. It provides:

   For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:

   (a)the employee first sought medical treatment for the disease, or aggravation; or

   (b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;

   whichever happens first.

   Factual background

9. Some further reference to the uncontroversial history is needed.  Mr Wade suffered the original injury (using the term in its usual sense) in June 1961 whilst playing football in the course of his duties.  The very limited medical records now available from that time do not disclose the precise physical injury that Mr Wade suffered.  In February 1962, following complaints of intermittent pain, Mr Wade's knees were x-rayed.  The report of that procedure showed that no "osseous lesion" was detected in either knee.  Mr Wade submitted that that reference meant that there was no evidence of osteoarthritis at that time.  There was however no evidence of the meaning of the term.  Both parties agreed that I could consult a medical dictionary to understand the x-ray report.  I have done so and it does not assist Mr Wade; the report conveys no more than that there were no indicators of cancerous growths, it says nothing about the presence or absence of osteoarthritis.

10. Mr Wade's left knee (as well as his right knee) continued to trouble him thereafter.  In July 2000 his left knee was studied by imaging.[5]  Evidence of mild to moderate osteoarthritis affecting all compartments was seen.  In December of that year an arthroscopic procedure was performed on the left knee but it is not clear what that procedure was.

    [5]Part of exhibit 4.

11. Mr Wade first claimed compensation in June 2000.  His claim was disallowed in August 2000.  Mr Wade sought reconsideration of that decision many years later in January 2006. On 21 February 2006 the Commission revoked the determination of 21 August 2000 and accepted liability to pay compensation for a condition described as "swollen left knee".  Thereafter, in a manner not clear from the material, Mr Wade appears to have sought compensation for permanent impairment.  He was referred to Dr David Walters, an orthopaedic surgeon, who he saw in March 2006.  Dr Walters’ report of 10 April 2006 noted:[6]

    Mr Wade sustained what appears to be a significant knee injury at football in 1961.  He has had some symptoms intermittently since, but the symptoms are now constant and his sleep is disturbed.  The findings of a normal ACL and of normal menisci at arthroscopy in 2000 make it difficult to sort out the exact diagnosis of the original injury, but the presence of marked osteoarthritis would seem to indicate that the original injury was some type of damage to the chondral articular surfaces of the knee joint.  The varus attitude of the knees causes increased wear on the medial compartment, but he says that it be that he was not bowlegged as a teenager or young man.  Thus it appears that the varus deformity is secondary to the osteoarthritis in the knee, rather than the other way around.

    [6]Exhibit 1, page 20.

12. On the basis of that report, and a supplementary report on 5 May 2006, the Commission made a further determination on 19 May 2006 to extend liability "to include osteoarthritis of the left knee".  Additionally, it was determined that Mr Wade was entitled to compensation for permanent impairment, assessed on the basis of a 30% loss of efficient use of his left leg above the knee as a result of his injury.

13. Mr Wade sought reconsideration of this determination on 9 June 2006.[7]  He contended that his compensation for permanent impairment ought to have been assessed by reference to the provisions of the 1988 Act rather than those of the 1930 Act which the Commission had applied.  The Commission's decision was affirmed on reconsideration on 15 June 2006.  That decision was affirmed by this Tribunal (differently constituted) on 28 March 2007.[8]  In that decision, the Tribunal held, by reference to the evidence of Dr Walters, that Mr Wade's knee was damaged and became symptomatic in 1961 because of damage to the surface of the knee.  The Tribunal said,

    30…Dr Walters said that this is the earliest state of osteoarthritis, and the condition would have become progressively worse over the elapsed time since, as is the nature of osteoarthritis.  Dr Wallace said that Mr Wade's current state is due to a gradual deterioration over the years of the surface of the left knee joint.  There has been no further injury or sudden development.  Dr Walters opined there has been no change in the underlying pathophysiological condition, but the current condition is worsening or continued deterioration of the existing condition.

    31Dr Walters told the Tribunal that whilst the left knee injury in 1961 was recorded as a soft tissue injury, it was more significant than that.  He said that he realised that the left knee condition did not trouble Mr Wade as much initially, however he recalled that Mr Wade reported the knee giving way since 1980s and giving him intermittent trouble since the time of the injury.

    32Dr Walters said that Mr Wade received significant damage at the time of injury and his knee gradually just got worse.  He said that the die was cast in 1961 and that the progress from 1961 onwards and events of 2000 were inevitable.  Dr Walters said that there were no factors that made the progress of the applicants knee condition worse.  He opined that this was totally consistent with Mr Wade having continued to referee football until 1981 and playing lawn bowls until late 1999.

    On the basis of that evidence, and in the absence of any evidence to the contrary, the Tribunal concluded that Mr Wade had suffered from an impairment, as defined in the 1988 Act, since 1961 and that impairment had been permanent, as defined in the same Act, since that time. 

    [7]Exhibit 1, pages 31-2.

    [8][2007] AATA 1182.

14. Mr Wade continued agitating for further compensation.  On 13 October 2009 the Commission determined that his loss of effective use remained at 30% (as had been determined on 19 May 2006) however, on reconsideration on 2 November 2009, a determination was made that Mr Wade had a loss of effective use of his left leg at, or above, the left knee of 50%.  He was accordingly paid additional lump-sum compensation.

15. On 18 January 2013[9] Mr Wade asked for his permanent impairment to be reassessed as he reported that his knee seemed to be more painful and his mobility was "getting a more painful exercise".  He was referred to Dr David Shooter, a consultant orthopaedic surgeon, who provided the Commission with a report dated 25 March 2013.  Dr Shooter was of the view that Mr Wade's loss of effective use of his left knee was 30%.[10]  In the result, on 11 April 2013, the Commission determined that no additional compensation was payable to Mr Wade.  He sought reconsideration of that decision.  The decision was affirmed on 17 July 2013.  Mr Wade seeks a review of that decision.

    [9]Exhibit 1, page 143.

    [10] Exhibit 1, page 162.

    Consideration

16. It is not easy to discern Mr Wade's argument.  As best as I can ascertain it, he contends that assessment of his permanent impairment ought be undertaken solely by reference to the provisions of the 1988 Act, not by reference to the loss of effective use provisions in the 1930 Act.  That is so, he says, because the osteoarthritis in his knee was "discovered" by Dr Fleming at the Caboolture Hospital in December 2000 when the arthroscopy was carried out. He says that his compensation claim made in 2000 made explicit reference to the 1988 Act and it was this Act, rather than the 1930 Act, under which his entitlements ought to have been calculated.  Moreover, he says, he has received compensation for permanent impairment for his left knee injury (using the term in its statutory sense) but not for the injury constituted by his osteoarthritis.  He points to cases such as Canute v Comcare[11], Fellowes v Military Rehabilitation & Compensation Commission[12] and Robson v Military Rehabilitation & Compensation Commission[13] as emphasising the need to consider his conditions as two separate injuries.

    [11][2006] HCA 47; (2006) 226 CLR 535.

    [12][2009] HCA 38; (2009) 240 CLR 28.

    [13][2013] FCAFC 101; (2013) 214 FCR 1.

17. I am unable to accept either of Mr Wade's arguments.  I am prepared to accept that Mr Wade articulated his claim in 2000 and thereafter by reference to a claimed entitlement to compensation arising solely under the 1988 Act.  But that is not the test.  It is the statutory criteria that determine eligibility for compensation not the terms of the claim.

18. The material demonstrates that osteoarthritis was not "discovered" in 2000; the process of osteoarthritic change commenced in 1961 with the original insult and gradually progressed over the years.  The evidence of Dr Walters at the earlier hearing, extracted above, makes that clear as does the evidence of Dr Shooter.

19. Mr Wade placed reliance on s 7(4) of the 1988 Act.  He argued that he first sought treatment for the injury constituted by the ailment of osteoarthritis in December 2000 and thus s 7(4) of the 1988 Act deemed him to have sustained that injury at that time.  But the argument overlooks the other paragraph of the subsection and the considerable evidence of impairment starting in 1961 and continuing thereafter.

20. Equally there is no substance in Mr Wade's argument that he has not received compensation of permanent impairment for osteoarthritis.  That assumes, wrongly, that the injury constituted by the swollen left knee resulted in a permanent impairment distinct from the permanent impairment resulting from osteoarthritis and that the compensation for permanent impairment paid to date is referable to the former injury not the latter.  Neither assumption is made good on the evidence.

21. All of the medical evidence points to the osteoarthritis having been the cause of ongoing symptoms after 1961.  There is no evidence of any knee injury in and of itself causing any symptoms or any impairment.  The compensation paid in (or about) May 2006 was explicable only on the basis of being compensation in relation to the osteoarthritis.  The letter of 2 November 2009[14] awarding a further 20% makes explicit reference to Mr Wade's,

    … application for payment of additional lump-sum compensation for permanent impairment of your osteoarthritis of the left knee, a condition for which the Commonwealth has accepted liability.

    [14]Exhibit 1, page 135.

22. The result of all of this is that the decision of the Commission was correct. Mr Wade’s entitlements to compensation for permanent impairment are assessed by reference to the 1930 Act. He has received all the compensation to which he was entitled under that Act (and likely more). The decision under review will be affirmed. 

I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the reasons for the decision herein of Deputy President PE Hack SC

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Associate

Dated 16 May 2014

Date(s) of hearing	23 April 2014
Applicant	In person
Counsel for the Respondent	Mr CJ Clark
Solicitors for the Respondent	Australian Government Solicitor