JOHNSTON and MILITARY REHABILITATION AND COMPENSATION COMMISSION
[2011] AATA 443
•24 June 2011
CATCHWORDS - COMPENSATION – compensable injury in 1969 – liability accepted for C6/C7 cervical fusion in 1975 and in 2008 for cervicogenic headaches and degenerative cervical disc disease resulting from C6/C7 cervical fusion – liability rejected for permanent impairment for each impairment – determining whether each impairment became permanent – whether any qualitative or quantitative change or patho-physiological change in the underlying impairment for there to be a new impairment – applicant not entitled to compensation for permanent impairment for worsening of cervicogenic headaches – entitlement to compensation for permanent impairment in respect of degenerative cervical disc disease – adjourned for parties’ consideration as to the applicable Guide to be used to determine degree of impairment - opportunity to submit further evidence for applicable impairment table.
PRACTICE AND PROCEDURE - applicable legislation – transitional provisions of 1988 Act considered – principles from judicial authorities considered and applied.
Blackman v Australian Telecommunications Corporation [1990] FCA 295; 12 AAR 11
Brennan v Comcare (1994) 50 FCR 555; 122 ALR 615; 19 AAR 542
Comcare v Brennan [1993] FCA 499; (1993) 45 FCR 475; 18 AAR 256
Comcare Australia v Mathieson [2004] FCA 212; (2004) 39 AAR 450; 79 ALD 518
Comcare v Levett (1995) 60 FCR 14; 131 ALR 645; 38 ALD 518; 22 AAR 154
Comcare v Luck [1999] FCA 100; (1999) 29 AAR 403
Comcare v Maida [2002] FCA 1284; (2002) 36 AAR 69
Department of Defence v West (1998) 85 FCR 491; 156 ALR 651; 27 AAR 550; 50 ALD 712
Federal Commissioner of Taxation v Scully (2000) 201 CLR 148; 74 ALJR 504; 169 ALR 459; [2000] ATC 4111; 43 ATR 718
Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297; 119 ALR 629; 68 ALJR 272
Technical Products Pty Ltd v State Government Insurance Office (Queensland) [1989] HCA 24; (1989) 167 CLR 45; 85 ALR 173; 63 ALJR 392
Trustees Executors and Agency Co Ltd v Reilly [1941] VLR 110
Workers’ Compensation Board (Q) v Technical Products Pty Ltd (1988) 165 CLR 642
Administrative Appeals Tribunal Act 1975 s 37
Compensation (Commonwealth Government Employees’) Act 1971 ss 39(2)(a), 39(10), 39, 41, 42
Commonwealth Employees’ Compensation Act 1930
Commonwealth Workmen’s Compensation Act 1912
Legislative Instruments Act 2003 ss 12, 12(1)(a)
Military Rehabilitation and Compensation Act 2004 ss 6(1)(d), 6(1)(a) and (b)
Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 ss 2(1), 4(1), 7
Safety, Rehabilitation and Compensation Act 1988 ss 2(2), 4(1), 4AA, 14, 14(1), 14(2) and (3), 5A, 16, 15, 19(2), 24, 24(1), 24(2), 24(5), 24(6), 24(7), 24(9), 25, 25(4), 28(1), 28(3), 28(3A), 28(4), 28(6), 44, 45, 123, 124(1), 124(1A), 124(2), 124(3), 124(3)(b), 124(4), 124(5), 124(6), 124(7), 124(8), 124(9)
The Commonwealth of Australia Constitution Act s 51(xxxi)
Veterans’ Entitlements Act 1986
Guide to the Assessment of the Degree of Permanent Impairment (first and second editions)
Federal Register of Legislative Instruments F2005L02587
Federal Register of Legislative Instruments F2005L02586
Blakiston’s Gould Medical Dictionary, 4th edition, 1979, McGraw-Hill Book Company, New York
Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
DECISION AND REASONS FOR DECISION [2011] AATA 443
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. 2009/5925
GENERAL ADMINISTRATIVE DIVISION )
Re:GEORGE JOHNSTON
Applicant
And:MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Place: Melbourne
Date: 24 June 2011
Decision:The Tribunal decides to:
1.affirm the decision of the respondent dated 19 October 2009 affirming the determination dated 15 June 2009 rejecting liability for compensation for permanent impairment in respect of chronic cervicogenic headache;
2.in respect of the decision of the respondent dated 19 October 2009 affirming the determination dated 15 June 2009 rejecting liability for compensation for permanent impairment in respect of degenerative disc disease as a result of C6-7 cervical fusion:
(1)set the decision aside; and
(2)substitute a decision that the respondent is, subject to Part II of the Safety, Rehabilitation and Compensation Act 1988, liable to pay compensation to the applicant for permanent impairment in respect of degenerative disc disease; and
3.adjourn further consideration.
S A Forgie
Deputy President
REASONS FOR DECISION
In 1975, the then Commissioner for Employees’ Compensation accepted liability for personal injury suffered by Mr George Johnston on 13 March 1969[1] when he was involved in a motor vehicle accident. At the time, the Compensation (Commonwealth Government Employees’) Act 1971 (1971 Act) was in operation. Mr Johnston suffered from cervicogenic headaches and back pain after the accident and they have continued despite his undergoing a fusion at the C6-7 level of his cervical spine on 28 February 1974.[2] In 2008, he claimed compensation for permanent impairment under the Safety, Rehabilitation and Compensation Act 1988 (1988 Act) in respect of degenerative cervical disc disease as a result of a C6-C7 cervical fusion and in respect of chronic cervicogenic headaches. Comcare rejected his claim on 15 June 2009 in two separate determinations and affirmed its determinations on 19 October 2009.
[1] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents) at 9
[2] T documents at 62
After considering the transitional provisions in Part X of the 1988 Act and the evidence, I have decided that Mr Johnston has suffered from a new impairment in his back (degenerative cervical disc disease) that did not occur until after 1 December 1988 but was a consequence of, or resulted from, the impairment (subluxation at C6-7 of the cervical spine) that had itself resulted from his injury. I have adjourned consideration of the assessment of the degree of Mr Johnston’s impairment as the evidence on that issue was directed to the
1st edition of Comcare’s Guide to the Assessment of the Degree of Permanent Impairment (Guide) rather than the 2nd, which has applied to the assessment of claims received on or after 1 March 2006. I have also adjourned to enable the parties to consider whether there is any basis on which I should be assessing the degree of impairment under the earlier edition of the Guide.
BACKGROUND
There is no dispute between the parties as to the facts that led to Mr Johnston’s claiming lump sum compensation for permanent impairment. It is to be found in the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents) and the documentary evidence to which I will refer.
Life before the Army
Mr Johnston’s family owned a building business in Victoria. He worked in that before his enlistment and also loved to play sport.
Service in the Army
Mr Johnston was conscripted into the Australian Army on 4 October 1967 when he was 20 years of age. He was deployed as a cook and had applied to work on a troop ship travelling between Sydney and Malaysia, Vietnam, New Guinea and the Philippines. His application was successful and he had planned to re-enlist for a further three year period.[3] That occurred some 17 months after his enlistment.
[3] T documents at 99
Before he could take up the position, he was involved in a motor vehicle accident and was injured. At the time, he had been working very long hours as another cook was ill. Mr Johnston was admitted to Nathalia Hospital suffering from concussion, lacerations of his scalp and bruising of his chest and right shoulder. His lacerations were sutured. An X ray of his right shoulder appeared normal except that his scapula appeared to be in a high position.[4] Mr Johnston was discharged from hospital on 20 March 1969. He had improved considerably since his admission to hospital but was still suffering pain over the back of his neck in his right shoulder.[5] A week later, on 27 March 1969, he was still suffering from pain in his neck when he moved his head.[6]
[4] Report of Dr W O’Hare dated 20 March 1969; T documents at 5
[5] Report of Dr W O’Hare dated 20 March 1969; T documents at 5
[6] T documents at 7 and 9
On returning to the Army Base at Kapooka, Mr Johnston began suffering from severe neck and head pain that would lead to migraine type headaches. The headaches lasted for hours. Lifting heavy objects caused him to suffer from prolonged pain which he tried to reduce by taking pain killing medication.[7]
[7] T documents at 86
On 12 August 1969, Mr Johnston attended a Medical Board before he was discharged from the Army on 13 October 1969. At the time, he was a Lance Corporal. The Medical Board concluded that Mr Johnston suffered from intermittent neck pain as a result of his injuries. Examination showed that he had some limitation of the left lateral flexion of his neck.[8]
[8] T documents at 9 and 15-18
Mr Johnston was given a non-medical discharge from the Army.[9]
[9] T documents at 18
Life since discharge from the Army
After his discharge, Mr Johnston attempted to return to his family’s building business but realised that he was not able to undertake the heavy lifting and demanding physical work involved in that business.[10] He attended a 14 week full time course at the William Angliss Food Training School. He completed the course successfully and went on to pursue a career as a chef but suffered constant pain in his neck, head and spine as well as headaches. At times, the pain was so bad that he could not work. Mr Johnston sought help from doctors, physiotherapists and chiropractors but none could give him anything other than short term relief. His General Medical Practitioner (GP) noted on 13 August 1973 that
Mr Johnston had complained of an ache in his neck and of occipital headaches.[11][10] T documents at 121
[11] T documents at 40
In February 1974, Mr Johnston consulted Mr Woodward, an Honorary Neurosurgeon at the Austin Hospital, after asking his GP for a referral.[12] On 24 February 1974, Mr Woodward undertook spinal fusion surgery at the C6/7 level of Mr Johnston’s spine.[13] After a three month convalescence, Mr Johnston was able to return to his catering work. Although the operation had been technically successful,[14] he still suffered from a certain amount of pain. Mr Woodward was at a loss to explain why the residual symptoms gave Mr Johnston more than discomfort. He noted that Mr Johnston had been left with some bilateral occipital aching and that was particularly so in the mornings.[15] Despite the pain,
Mr Johnston continued his career as a chef.[12] T documents at 41
[13] T documents at 59
[14] T documents at 62
[15] T documents at 64
A year after the operation, Mr Woodward reported that Mr Johnston had noticed some improvement in his neck pain but still experienced pain in the back of his neck and scalp. On examination, Mr Johnston had a good range of painless neck movement. At the time, Mr Johnston was bothered by his neck when he worked for long periods or had to remain in certain positions. He was taking 12 to 20 analgesic tablets each fortnight to control the pain but the pain did not cause him to be absent from work.[16]
[16] T documents at 69
In 1990, his level of pain had risen to such an extent that he could no longer continue in his career. He then began to work for a local council mowing lawns and maintaining its parks and gardens.[17] His headaches have continued but he has found the work to be less taxing than catering. He still has to have time away from work because of his headaches.
[17] T documents at 87 and 122
In more recent times, the pain in Mr Johnston’s neck and head has become more severe. X-rays have shown that the discs at the C3/4 and C4/5 level are deteriorating. He understands that his only option is to undergo another fusion operation when the pain becomes unbearable.[18]
[18] T documents at 87
Mr Johnston has great difficulty in finding a comfortable position when he is lying down or sitting. As he cannot sit in one position for any length of time, flying and driving long distances are difficult. He has tried numerous types of chairs and, in the last three years, purchased two different mattresses in an attempt to find some measure of comfort. His difficulties have limited his career choices and his ability to earn an income. He has been unable to play sport that he loved to do before he was conscripted.[19]
[19] T documents at 88
Mr Johnston has deep regrets about not being able to serve in Vietnam as some of his friends did. He has regrets that he could not represent his country as they did. His yearning to have done so has not diminished over the years.[20]
[20] T documents at 88
Claims history
At the time of his injury, the Commonwealth Employees’ Compensation Act 1930 (1930 Act) was in force. Mr Johnston claimed compensation. On 19 May 1975, a predecessor of the respondent, the Military Rehabilitation and Compensation Commission (MRCC) accepted liability under the 1971 Act in respect of concussion, lacerations of the scalp, bruising of his chest and a right shoulder and neck injury.[21] It did so on the basis that the Department of Defence (Army) would have been liable to pay compensation under the 1930 Act. Mr Johnston’s medical expenses were paid.[22]
[21] T documents at 71
[22] T documents at 72-73
When Mr Johnston lodged a further claim on 13 March 2008 for compensation in respect of constant headaches, the 1971 Act had been repealed and the 1988 Act then regulated the payment of compensation. A delegate of the MRCC accepted that liability be extended to chronic cervicogenic headache and degenerative cervical disc disease as a result of C6/C7 cervical fusion.[23]
[23] T documents at 115-116
The MRCC did not accept liability when Mr Johnston lodged a third claim on 3 October 2008. He claimed compensation for permanent impairment in respect of each of the conditions for which liability had been accepted.[24] On 15 June 2009, the MRCC rejected his claim for permanent impairment in respect of chronic cervicogenic headache[25] and in respect of degenerative cervical disc disease as a result of C6/C7 cervical fusion.[26] On 19 October 2009, the MRCC affirmed its determination to reject Mr Johnston’s claim for compensation in respect of cervicogenic headaches and permanent impairment in respect of degenerative cervical disc disease.[27]
LEGISLATIVE FRAMEWORK
[24] T documents at 117-122
[25] T documents at 154-155
[26] T documents at 152-153
[27] T documents at 164-165
The MRC Act
Among other matters, the Military Rehabilitation and Compensation Act 2004 (MRC Act) provides for compensation and other benefits to be paid to current and former members of the Defence Force, who suffer a service injury or disease. Its substantive provisions came into operation on 1 July 2004. Previously, their entitlements had been governed or affected by various pieces of legislation including the 1930 Act, the 1971 Act, the 1988 Act and the Veterans’ Entitlements Act 1986 (VE Act). In light of that legislation, the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 (Transitional Act) was passed “… to amend laws, and to deal with transitional matters, in connection with the …” MRC Act.[28] Its first three sections dealt with its short title, commencement and consequential amendments made to the 1988 Act, the VE Act and various other enactments. They commenced operation on 27 April 2004. Its remaining provisions were expressed to come into operation “At the same time as section 3 of the MRCA commences”[29] i.e. 1 July 2004. That is the date referred to as the “commencement date” in the Transitional Act.[30]
[28] Transitional Act, Purpose Clause
[29] Transitional Act, s 2(1), Column 2
[30] Transitional Act, s 4(1)
Part 2 of the Transitional Act sets out those injuries, diseases, deaths and losses to which the MRC Act applies. Part 3 is concerned with those who have injuries or diseases coming under the VE Act or the 1988 Act as well as the MRC Act. Part 4 sets out other transitional provisions concerning matters such as the offset of amounts of Commonwealth superannuation under the MRC Act, ongoing rehabilitation under the MRC Act for persons undergoing rehabilitation under the 1988 Act or the VE Act and the transfer of certain schemes and principles from the VE Act.
It is clear from the structure and substance of the Transitional Act that, as well as the mirroring of its commencement dates with those of the substantive provisions of the MRC Act, it is intended to be read with the MRC Act. It is intended to be read with and to regulate the transition from the regime of compensation that operated under the VE Act and the 1988 Act in relation to members and former members of the Defence Force to that provided under the MRC Act.
The injuries, diseases, deaths and losses to which the MRC Act applies
Mr Johnston has claimed compensation for permanent impairment in respect of an injury he sustained in 1969. Section 7 of the Transitional Act provides:
“(1) The MRCA applies to a person’s injury, disease or death if:
(a)the injury is sustained, the disease is contracted, or the death occurs, on or after the commencement date; and
(b)the injury, disease or death either:
(i)relates to defence service rendered by the person on or after that date; or
(ii)relates to defence service rendered by the person before, and on or after, that date.
(2)The MRCA applies to an aggravation of, or a material contribution to, a person’s injury or disease, or a sign or symptom of a person’s injury or disease, if:
(a) the aggravation or material contribution occurs on or after the commencement date (even if the original injury is sustained, or the original disease is contracted, before that date); and
(b) the aggravation or material contribution either:
(i) relates to defence service rendered by the person on or after that date; or
(ii) relates to defence service rendered by the person before, and on or after, that date.”
The expression “defence service” means “warlike service, non-warlike service or peacetime service”.[31] The terms “warlike service” and “non-warlike service” each refers to service with the Defence Force that is determined by the Defence Minister to be service of that kind.[32]
[31] MRC Act, s 6(1)(d)
[32] MRC Act, s 6(1)(a) and (b)
As the commencement date to which s 7 refers was well after the date on which Mr Johnston suffered his injury in 1969, the MRC Act does not apply to his injury. Even though he continues to suffer pain from it, there is no evidence or material on which I am satisfied that he has aggravated that injury on or after 1 July 2004. Therefore, the MRC Act does not apply to him on that basis either. That is the effect of s 7 of the Transitional Act.[33]
The 1988 Act applies to an injury or disease suffered by an employee whether before 1 July 2004
[33] Section 4AA of the 1988 Act complements s 7 of the Transitional Act by limiting the application of the 1988 Act to injuries or aggravations first suffered on or after 1 July 2004 and arising out of, or in the course of, employment occurring after that day or before and on or after that day.
A. General outline
Section 14 of the 1988 Act is the starting point in determining whether a person is entitled to compensation under it in respect of an injury.[34] Section 14(1) provides:
“Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”
It is immediately apparent that Comcare’s liability to pay compensation is subject to Part II. It is, therefore, subject to the exceptions and qualifications found in ss 14(2) and (3) and implicit in the definition of the word “injury”.[35] Those qualifications are not relevant in this case.
[34] In the 1988 Act, the word “injury” extends to both an injury and a disease: 1988 Act, ss 4(1) and 5A.
[35] 1988 Act, ss 4(1) and 5A
Where compensation is payable, it is also apparent that it is not payable in respect of an injury as such. It is only payable under s 14(1) if that injury results in one of the consequences identified in that provisions i.e. death, incapacity for work or impairment. Each of these three consequences is the subject of further regulation. Division 2 regulates compensation for injuries resulting in death, Division 3 for those resulting in incapacity and Division 4 for those resulting in impairment.
Compensation is also provided for particular losses that might result from an injury. That compensation is not referred to in s 14(1) but follows from s 16 and Division 5 of Part II. Section 16 provides for compensation in respect of medical expenses when an employee suffers an injury. Division 5 of Part II provides for compensation for household services and attendant care services when an employee suffers an injury.
Section 15 provides for compensation for loss of, or damage to, property used by an employee when an accident does not result in injury. The accident must arise out of, or in the course of, an employee’s employment.
B.Application of 1988 Act to pre-existing injury, loss or damage: ss 124(1), (1A) and (2)
Under s 124(1) of the 1988 Act, that legislation applies to an injury, loss or damage suffered by an employee whether before or after 1 December 1988. That date is the date on which provisions of the 1988 Act (other than those relating to administration and licensing) commenced operation and is referred to as the “commencing day”.[36] A person is entitled to compensation under that legislation in respect of an injury, loss or damage suffered before 1 December 1988 if compensation was, or would have been, payable to the person in respect of the injury, loss or damage under the Commonwealth Workmen’s Compensation Act 1912 (1912 Act), the 1930 Act or the 1971 Act.[37] It is also important to note s 124(2) of the 1988 Act. It provides:
“A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:
(a)where the injury, loss or damage was suffered before the commencement of the 1930 Act – under the 1912 Act;
(b)where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act – under the 1930 Act as in force when the injury, loss or damage was suffered; or
(c)in any other case – under the 1971 Act as in force when the injury, loss or damage was suffered.”
[36] 1988 Act, ss 123 and 2(2); Gazette 1988 No. S 196
[37] 1988 Act, s 124(1A)
The structure of ss 124(1), 124(1A) and (2) indicates that it is important to identify two features. The first is the classification of the compensation. Is it “in respect of an injury, loss or damage”? The second is a matter of timing. When was the “injury, loss or damage … suffered”?
I will begin with the second feature. An injury, loss or damage is “suffered” when it is undergone or endured.[38] When compensation is sought “in respect of an injury”, it is suffered the date on which the injury is endured. When it is sought “in respect of … loss or damage”, it is suffered on the date on which that loss or damage is endured. That appears to be simple but the first feature – that of classification – tends to blur that simplicity on first reading.
[38] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
If ss 124(1), (1A) and (2) were read on their own without reference to the remaining provisions of Part X, the next question would be to look to the first feature i.e. to compensation “in respect of an injury, loss or damage”. That would lead to an examination of the meaning of those terms and to their use in Part II. That would lead to a conclusion that the three provisions were intended to regulate the transition from the previous legislative regimes to the regime under the 1988 Act regardless of the particular type of compensation under consideration. Every type of compensation is, after all, “in respect of” an injury, a loss or damage. That is so on the ordinary meaning of the expression “in respect of”:
“… It is well accepted that such words take their meaning from their context. Thus, in Workers’ Compensation Board (Q) v Technical Products Pty Ltd,[[39]] Deane, Dawson and Toohey JJ said:[40]
Undoubtedly the words ‘in respect of’ have a wide meaning, although it is going somewhat too far to say, as did Mann CJ in Trustees Executors & Agency Co Ltd v Reilly,[41] that ‘they have the widest possible meaning of any expression intended to convey some connection or relation between the two subject matters to which the words refer’. The phrase gathers meaning from the context in which it appears and it is the context which will determine the matters to which it extends.
…”[42]
[39] (1988) 165 CLR 642 at 653-654
[40] (1988) 165 CLR 642 at 653-4; 81 ALR 260 at 267
[41] [1941] VLR 110 at 111
[42] Federal Commissioner of Taxation v Scully (2000) 201 CLR 148; 74 ALJR 504; 169 ALR 459; [2000] ATC 4111; 43 ATR 718; at 171; 513; 471-472; 4121; 720-730 per Gaudron ACJ, McHugh, Gummow and Callinan JJ; Kirby J dissenting
There is a “discernible and rational link” between an entitlement to a particular type of compensation provided for in Part II and a particular injury, loss or damage.[43] That is the language in which Part II expresses liability to pay compensation. Taking compensation for incapacity as an example, s 19(2) provides that:
“Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula …”
The liability, and so the entitlement, to compensation, does not arise in respect of the loss, which is the employee’s incapacity, but in respect of the injury. The discernible and rational link is between liability to pay, and so entitlement to be paid, compensation and injury. Incapacity determines the nature of the compensation and its duration.
[43] Technical Products Pty Ltd v State Government Insurance Office (Queensland) [1989] HCA 24; (1989) 167 CLR 45; 85 ALR 173; 63 ALJR 392 at [5]; 47; 175; 593 per Brennan, Deane and Gaudron JJ; Dawson J agreeing and Toohey J dissenting
The same is true of permanent impairment. Section 24(1) provides:
“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.”
Liability, and so entitlement, to compensation, arises in respect of the injury and not in respect of the loss, which takes the form of permanent impairment. The discernible and rational link is between liability to pay, and so entitlement to be paid, compensation and the injury.
If ss 124(1), (1A) and (2) were read on their own without reference to the remaining provisions of Part X, the outcome would be that entitlement to compensation would be determined by reference to the legislation in force when the injury, loss or damage was suffered. The particular type of compensation sought would not be determinative of the issue.
C.Application of 1988 Act to pre-existing injury, loss or damage: ss 124(3) and (4)
C.1 Interpretation uninstructed by authority
Sections 124(1), (1A) and (2) do not stand alone in Part X. Instead, Part X has taken the path of providing separately for circumstances in which an employee is not entitled to compensation in respect of permanent impairment,[44] household services and attendant services,[45] incapacity,[46] death,[47] medical expenses[48] and funeral expenses[49] and for those circumstances in which the amount of compensation is limited.[50]
[44] 1988 Act, s 124(3)
[45] 1988 Act, s 124(5)
[46] 1988 Act, s 124(6)
[47] 1988 Act, ss 124(3) and (6)
[48] 1988 Act, s 124(8)
[49] 1988 Act, s 124(8)
[50] 1988 Act, ss 124(4) (permanent impairment); (7) (death or incapacity); and (9) (medical expenses and funeral expenses)
Section 124(3) provides to a person’s entitlement to compensation in respect of permanent impairment under ss 24 or 25 of the 1988 Act:
“A person is not entitled to compensation under section 24 or 25 in respect of a permanent impairment, … being an impairment … that occurred before the commencing date [sic], if:
(a)the person received compensation of a lump sum in respect of that impairment … under the 1912 Act, the 1930 Act or the 1971 Act; or
(b)the person was not entitled to receive compensation of a lump sum in respect of that impairment …:
(i)where the impairment … occurred before the commencement of the 1930 Act – under the 1912 Act;
(ii)where the impairment … occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act – under the 1930 Act as in force when the impairment … occurred; or
(iii)in any other case – under the 1971 Act as in force when the impairment … occurred.”
Section 124(4) makes similar provision in relation to the amount of compensation that a person may receive in respect of a permanent impairment:
“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, … being an impairment … 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 … occurred before the commencement of the 1930 Act – the 1912 Act;
(b)where the impairment … occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act – under the 1930 Act as in force when the impairment … occurred; or
(c)in any other case – the 1971 Act as in force when the impairment … occurred.”
On their face, these two provisions require me to look both to a “permanent impairment” and to an “impairment”. They are separate, though related, concepts under the 1988 Act. An “impairment” is defined as:
“… 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.”[51]
Under the 1988 Act, compensation is only payable where an injury to an employee results in a “permanent impairment”.[52] The word “permanent” is defined separately from the word “impairment” and means “… likely to continue indefinitely”.[53] Section 24(2) of the 1988 Act provides:
“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.”
[51] 1988 Act, s 4(1)
[52] 1988 Act, s 24(1)
[53] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
There are two possible interpretations of these provisions. One requires me to read the word “permanent” to qualify the word “impairment” when it appears in these provisions. That would mean that the words “being an impairment” and “impairment” would read “being a [permanent] impairment” and “[permanent] impairment”. In turn, that would mean that entitlement to compensation in respect of permanent impairment would have regard to the legislation in force when the permanent impairment occurred and not simply when the impairment (which either was or was later to become a permanent impairment) occurred. The other interpretation does not read any words into ss 124(3) or (4). Instead, it gives the words their meanings as set out in the 1988 Act. The effect of that other interpretation of ss 124(3) and (4) is that a person’s entitlement to a lump sum and the amount of that lump sum in respect of permanent impairment is determined by reference to when the impairment occurred. That impairment has to have become permanent but entitlement is not determined by reference to the legislation in force when the impairment became permanent but by reference to the legislation in force when the impairment occurred.
It seems to me that the second interpretation is the correct interpretation for two reasons. The first reason is that it is the meaning that accords with the ordinary meaning of the words without embellishment or addition.
The second reason is that it is consistent with the structure of the compensation provisions in the 1988 Act and with its transitional provisions as well as consistent with their underlying policy. I will illustrate this by reference to an example of two employees who suffered identical injuries on the same day which was, say, 1 December 1987 and so a year before the 1988 Act commenced. Both suffered the same impairments. After ten months of intense rehabilitation, the first employee had the same impairment but his doctors decided that no further improvement was possible. His injury had been treated and stabilised and he was suffering a permanent impairment as that term is understood in s 24(2) of the 1988 Act. The second employee required another six months of intense physiotherapy before it could be decided, on 1 June 1989, that he too would make no further improvement and that he was suffering an impairment that was permanent. For the sake of my example, both had precisely the same impairment. On 1 July 1989, both applied for compensation in respect of permanent impairment under the 1988 Act.
On the interpretation I prefer, the entitlement of both employees would be determined on the basis of the 1971 Act for the impairment of each occurred before 1 December 1988. If the injury of either should result in a further impairment, being an impairment different from the first, and do so after 1 December 1988, liability for compensation for any permanent impairment in respect of that impairment would be determined under the 1988 Act.
On the interpretation that I do not prefer, the first employee’s entitlement to compensation would be determined on the basis of the 1971 Act for that is when his permanent impairment occurred. The second employee’s entitlement to compensation for permanent impairment would, therefore, be determined under the 1988 Act for it would not have occurred before the commencement of that legislation and so would fall outside the transitional provisions of ss 124(3) and (4). Putting aside the particular differences in entitlement under the 1971 Act and the 1988 Act, that does not appear to be a fair outcome. It is not a fair outcome that the timing of a consequence of an impairment determines the entitlement to compensation rather than the timing of the impairment. An impairment is, after all, a consequence of an injury, and entitlement to compensation for an injury is determined by reference to the timing of the injury under ss 124(1A) and (2).
C.2The importance of distilling the principles
I regret to say that I have had great difficulty in understanding the reasoning underlying some of the judgments of the Federal Court in this area of the law. This has been of concern to me for consistent administrative decision-making depends upon administrative decisions being made on the basis of a consistent application of the same principles. The search for the principles and their rationalisation into a consistent pattern is part of the everyday task of the Tribunal. When an issue has not been considered by the High Court or the Federal Court, the legislative framework lies at the heart of the search for principles. When the particular legislative framework or provision has been the subject of judicial consideration, the judicial interpretation of that framework or provision becomes the law that an administrative tribunal must apply and within which it must find the principles. Courts interpret the law and tribunals apply that interpretation. Understanding the reasoning that leads a court to a particular interpretation is just as important as the interpretation itself. They shed light on the way in which a law is to be interpreted and applied in other factual situations to which the law may apply but which fall outside the bounds of the particular factual situation before the court at the time.
C.3 The authorities
I begin with the case of Blackman v Australian Telecommunications Corporation[54] (Blackman). Mr Blackman suffered from mesothelioma and his condition gradually worsened. He claimed compensation for permanent impairment and the Full Court said that there was no doubt that he had suffered a permanent impairment before 1 December 1988. His claim was resisted on the basis of s 124(3). The Full Court examined the provisions of the 1988 Act relating to the assessment of permanent impairment and, in particular, the power to make an interim determination of permanent impairment as a condition worsens. It concluded that ss 24 and 25 do not appear to treat that situation as producing a series of permanent impairments. That was a matter which the Full Court considered relevant in interpreting s 124(3) when it expressed the view that:
“… The natural reading of ‘impairment ... that occurred before the commencement date’ is such as to cover the case in which there is a single impairment, which came into existence before the commencing date and thereafter fluctuated in intensity but generally worsened.
The consequence is that the applicant is not entitled to compensation under ss 24 and 25 of the 1988 Act in respect of his permanent impairment, because it occurred, that is, came into existence, before the commencing date.”[55]
[54] [1990] FCA 295; (1990) 12 AAR 11; Pincus, Foster and Hill JJ
[55] (1990) 12 AAR 11 at 14
In reaching this conclusion, the Full Court considered a contention put on behalf of Mr Blackman by his counsel:
“… Mr Joseph’s contention amounted to this: although there is only one disease and, having regard to the definition of injury in s 4(1), therefore, only one ‘injury’, if the impairment consequent upon it has worsened substantially after the commencing date, then that worsening in itself constituted an ‘impairment’ within the meaning of s 124(3) occurring after the commencing date.
If the contention on behalf of the applicant is correct, then each time an impairment worsens significantly, there is a new impairment within the meaning of the 1988 Act. We cannot read the relevant provisions in this way. The scheme of the Act, in particular of ss 24 and 25, is not that as a disease progresses, the aggravation of its consequences constitutes a series of new impairments, each giving rise to a separate liability to pay compensation. If that were so, then small increments of aggravation of the impairment would not be compensable at all; for under s 24(7) there is no right to compensation if the degree of permanent impairment is determined to be less than 10 per cent. As an impairment worsens, further rights to compensation may accrue under s 25, but not because there is another distinct impairment.
To achieve the result that a variation (substantial or otherwise) of the degree of impairment should be treated as a new impairment for the purposes of s 124(3), different language would have been necessary. The natural reading of ‘impairment … that occurred before the commencement date’ is such as to cover the case in which there is but a single impairment, which came into existence before the commencing date and thereafter fluctuated in intensity but generally worsened.”[56]
[56] (1990) 12 AAR 11 at 14
In the later case of Brennan v Comcare[57] (Brennan), Gummow J agreed with the second paragraph of this passage from Blackman but said of the third that:
“This passage is to be treated with some caution. As Burchett J points out in his judgment on the present appeal, s 24 imposes a liability upon Comcare where an injury results in a permanent impairment. The terms of the legislation are consistent with the imposition of distinct liabilities where an injury results in more than one permanent impairment, and in a particular case those results may be manifested sequentially rather than concurrently. …”[58]
[57] [1994] FCA 1147; (1994) 50 FCR 555; 122 ALR 615; 19 AAR 542; Burchett, Ryan and Gummow JJ
[58] (1994) 50 FCR 555; 122 ALR 615; 19 AAR 542 at 571; 632; 558
In Brennan, Gummow J referred to the case of Georgiadis v Australian and Overseas Telecommunications Corporation[59] (Georgiardis) for support.[60] Before the 1988 Act was passed, a Commonwealth employee was entitled to payments of compensation under the 1971 Act and, if the employer had been negligent, to sue for damages at common law. Section 44 of the 1988 Act provides, in effect, that an employee no longer had a right to sue for damages. It was modified by s 45, which provides, in part:
“Where:
(a)compensation is payable under section 24, 25 or 27 in respect of an injury to an employee; and
(b)the Commonwealth … would, but for subsection 44(1), be liable for damages for any non-economic loss suffered by the employee as a result of the injury;
the employee may, at any time before an amount of compensation is paid to the employee under section 24, 25 or 27 in respect of that injury, elect in writing to institute an action or proceeding against the Commonwealth ….”
[59] [1994] HCA 6; (1994) 179 CLR 297; 119 ALR 629; 68 ALJR 272; Mason CJ, Brennan, Deane and Gaudron; Dawson, Toohey and McHugh JJ dissenting
[60] (1994) 50 FCR 555; 122 ALR 615; 19 AAR 542 at 562-564; 624-625; 550-551
Mr Georgiardis had been injured on five separate occasions before the 1988 Act was passed. After it was passed, he instituted civil proceedings claiming damages in respect of all five. Only the two most recent were within time and the High Court was asked to consider whether the 1988 Act was invalid in so far as it effected an acquisition of property, being his right to claim damages, and did so on unjust terms contrary to s 51(xxxi) of the Constitution. Mason CJ, Deane and Gaudron JJ who, together with Brennan J, formed the majority, said of the scheme of the 1988 Act:
“ Section 45 of the Act allows an employee who elects to that effect before any compensation is paid to bring proceedings for damages for non-economic loss, but only if compensation is payable under s. 24, 25 or 27. Compensation is payable under s. 27 only if it is also payable under s. 24. By s. 124(3), a person is not entitled to compensation under s. 24 or 25 and, hence, not entitled under s. 27, in respect of a permanent impairment that occurred before the scheme came into effect, unless he or she was also entitled to a lump sum under the scheme which applied when the injury was sustained. It is common ground that Mr. Georgiadis was not so entitled.”[61]
[61] [1994] HCA 6; (1994) 179 CLR 297; 119 ALR 629; 68 ALJR 272 at 303; 632; 273
In Brennan, Gummow J referred to the dissenting judgment of Toohey J in Georgiardis. Toohey J had examined the interrelation between ss 24 and 124 and then said:
“But a person is not entitled to compensation in respect of a permanent impairment unless he or she was entitled to a lump sum in respect of that impairment ‘under the 1971 Act as in force when the impairment … occurred’ (s 124(3)(b)(iii)) … The plaintiff was not entitled to a lump sum for permanent impairment to his back under the 1971 Act. He was therefore not entitled to receive compensation of a lump sum for that impairment under the [1988 Act].”[62]
[62] [1994] HCA 6; (1994) 179 CLR 297; 119 ALR 629; 68 ALJR 272 at 317-318; 643-644; 282-282
Gummow J referred also to like passages from the judgments of Dawson and McHugh JJ in Georgardis.[63] Taking first, the passage he quoted from the judgment of Dawson J, it reads:
“Thus s. 44 of the 1988 Act removes the common law right of an employee to claim damages against a Commonwealth authority unless s. 45 applies. Section 45 only applies if s. 24, 25 or 27 applies …. Under s. 124(3), ss. 24 and 25 do not apply to a person injured before the 1988 Act commenced if ‘the person was not entitled to receive compensation of a lump sum in respect of that impairment ... under the [Compensation (Commonwealth Government Employees) Act 1971 (Cth) (“the 1971 Act”)] as in force when the impairment ... occurred’. Under the 1971 Act the plaintiff was entitled to weekly or other compensation and to pursue a claim for damages at common law …. However, he was not entitled to a lump sum. A lump sum was only payable to an employee under the 1971 Act for the incapacities set out in ss. 39-42 of the 1971 Act, which do not include back injuries. The plaintiff’s claim is in respect of a back injury. It follows that ss. 24 and 25 of the 1988 Act do not apply to the plaintiff. Liability under s. 27 of the 1988 Act is dependent upon liability under s. 24 of the 1988 Act.”[64]
[63] (1994) 50 FCR 555; 122 ALR 615; 19 AAR 542 at 563-564; 624-625; 550-551
[64] [1994] HCA 6; (1994) 179 CLR 297; 119 ALR 629; 68 ALJR 272 at 314; 640-641; 279-280 (footnotes omitted) per Dawson J
The language of Dawson J might appear unusual but it must be remembered that the 1971 Act and its predecessors did not refer to an “impairment” other than an “impairment of speech”.[65] What is referred to as an “impairment” under the 1988 Act is referred to as a “loss”. Unlike the general definition of “impairment” appearing in the 1988 Act, the 1971 Act makes provision only for particular losses described in s 39 to 42. The 1930 Act and the 1912 Act adopt a similar style. What Dawson J refers to as “incapacities” are described as “losses” in the relevant provisions of the earlier. They would be recognised as an “impairment” if the language of the 1988 Act were used. Each loss for which compensation is provided is a permanent loss. It might be permanent in the sense of a loss of a particular bodily part or sense, or a partial loss of a part or sense, as identified in s 39. It might be a facial disfigurement but only if severe and permanent.[66] The same was true of a loss of taste or smell. The loss had to be total and permanent.[67]
[65] See, for example, 1971 Act, s 39(10)
[66] 1971 Act, s 41
[67] 1971 Act, s 42
In Brennan,[68] Gummow J also quoted a passage from the judgment of
McHugh J:“The 1971 Act did not provide for a lump sum payment for permanent impairment to the back. Because the plaintiff’s injuries were sustained before the commencing date of the 1988 Act and he was not entitled to a lump sum payment under the 1971 Act, he falls within s. 124(3)(b)(iii). Thus, he has no right to sue at common law for damages for his injuries and no right to obtain a lump sum payment under the 1988 Act for his disabilities. In his case, s. 45 does not qualify the operation of s. 44. Consequently, he no longer has any right to sue the defendant at common law for damages in respect of his injuries. His remedies are confined to weekly payments for incapacity and medical expenses under the 1988 Act.”[69]
Like Dawson J, McHugh J has chosen a word other than “losses” as part of his description of the scope of Mr Georgiardis’s entitlement to lump sum payment under the 1971 Act.
[68] (1994) 50 FCR 555; 122 ALR 615; 19 AAR 542 at 564; 625; 551
[69] [1994] HCA 6; (1994) 179 CLR 297; 119 ALR 629; 68 ALJR 272 at 324-325; 649; 285-286
Neither Dawson J nor McHugh J referred to the back injury or injuries suffered by Mr Georgiardis as being permanent or not. They referred only to his not being entitled to a lump sum payment in respect of it or them for the 1971 Act made no provision for it. That it was permanent is apparent from the judgment of Toohey J.
In Brennan, Gummow J then analysed the interaction of ss 24 and 124 concluding that:
“ The crucial question then becomes whether Mr Brennan falls outside the exclusion brought about by s 124(3), and remains within the entitlement to compensation under s 24 conferred by s 124(1), because he correctly asserts that his entitlement under s 24 in respect of a permanent impairment which occurred after, rather than before, 1 December 1988. Accordingly, it was necessary for the AAT to determine whether, on the facts as found by it, the impairment, within the meaning of s 124(3), ‘occurred’ before 1 December 1988. …”[70]
[70] (1994) 50 FCR 555; 122 ALR 615; 19 AAR 542 at 566; 627-628; 553-554
Also in Brennan, Burchett J had said on the same issue:
“ It will be observed that subs (3) talks about ‘a permanent impairment’ and ‘that impairment’. This language is consistent with the analysis I have made of s 24, and with the notion that there may be a number of impairments arising at different times out of the same injury. Had Parliament intended to exclude the operation of the 1988 Act wherever an injury had resulted in any permanent impairment arising before the commencing date, it could easily have said so. Instead, what Parliament did provide was carefully linked to a particular impairment. Only where that impairment occurred before the commencing date do the exclusionary provisions of subs (3) operate. Unless they do, subs (1) holds sway, and an impairment is compensable under the 1988 Act.
Returning then to s 24, it seems quite clear that s 124 applies without difficulty to a case where a person injured before the commencing date did not suffer an immediate impairment, but the injury resulted in one after the commencing date. Equally, it seems to me, there is no difficulty about a case where there was an impairment before the commencing date in, say, one limb, but a new impairment developed in, say, another limb after the commencing date. The concentration on the particular impairment, to which I have already drawn attention, in both s 24 and s 124 is too marked to be without effect. Each of these cases is compensable under the 1988 Act by virtue of ss 24 and 124(1), not being caught by the opening words of s 124(3).”[71]
[71] (1994) 50 FCR 555; 122 ALR 615; 19 AAR 542 at 557-558; 619; 545
Burchett J observed that there could be more than one impairment and that a worsening of an impairment could be regarded as a separate impairment. Section 25(4) adverts to the possibility of there being a further degree of impairment, whether or not related to the same or a different part of the body affected by the first impairment.[72]
[72] (1994) 50 FCR 555; 122 ALR 615; 19 AAR 542 at 558; 619; 545
To this point, the judgment of Burchett J is consistent with the principles expressed by the Full Court in Blackman. On the facts of Blackman, the Full Court had no need to look beyond the case of the single impairment. That single impairment was worsening but, on the facts before them, there was no new impairment. The Full Court had no need to turn its attention to situations in which there were multiple impairments. To this point in Brennan, the courts in both it and Blackman agree that s 124(3) requires the decision-maker to ascertain the date on which the impairment under consideration occurred and that an employee’s entitlement to compensation for that impairment is determined by reference to the legislation in force on that date. That exercise has to be carried out for each impairment resulting from the injury.
The last passage I have quoted from the judgment of Gummow J does not follow this path. It can be read as suggesting that a person will only be disentitled if the impairment was a permanent impairment before 1 December 1988. It is not entirely clear from that passage for he uses both “impairment” and “permanent impairment”. That he does mean this becomes clear later in his judgment when he focuses on the date an impairment became permanent rather than the date on which it occurred. He did so when considering whether Mr Brennan’s entitlement to compensation was excluded by s 124(3). He said:
“ No direct legislative guidance is given, in relation to the concept of ‘permanent impairment’, as to the effect of the expression in s 124(3), ‘occurred before the commencing date’. However, the legislative framework indicates that there are at least three steps involved. The first is that there must have been an injury to Mr Brennan. Obviously this must have occurred before the commencement date. It was not, as I understand it, disputed that Mr Brennan satisfied this criterion.
Next, the injury must have resulted in an impairment, meaning the loss, or 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 thereof. Further, that impairment must have been permanent, that is to say likely to continue indefinitely. That state of affairs must have been reached before the commencement date.”[73]
[73] (1994) 50 FCR 555; 122 ALR 615; 19 AAR 542 at 569-570; 631; 557
I have struggled to understand why Gummow J has come to this conclusion. Under the previous legislative schemes, an employee would not have received compensation for a loss (that would now be described as an impairment) unless that loss were permanent. Just as every impairment is not permanent, not every loss was permanent within the meaning of, say, the 1971 Act. While the 1988 Act gave an entitlement to compensation in respect of an impairment that became a permanent impairment, its predecessors gave an entitlement to compensation in respect of a loss that was, by virtue of its legislative description, permanent. On its plain meaning, s 124(3)(b) seems to be saying that a person will not be entitled to receive compensation under ss 24 or 25 of the 1988 Act if the impairment in respect of which that compensation is sought occurred before the commencing date and the person was not entitled to receive compensation of a lump sum in respect of that impairment under the legislation in force at the time that impairment occurred. There is no room to read into s 124(3)(b) any requirement that the impairment be a permanent impairment. The clear intention of Parliament seems to be that a person’s entitlement is to be determined by reference to the law in force at the time that the impairment, and so loss, occurred. If the impairment occurred when the 1971 Act was in force, that is the legislation under which entitlement is determined even if the impairment did not become permanent, and so compensable, until the 1988 Act had come into operation. The amount of compensation payable would be the amount assessed under the 1971 Act. That follows from s 124(4) of the 1988 Act.
I have gone back to the judgment of Neaves J in Comcare v Brennan[74] to see whether I can better understand the point being made by Gummow J. Gummow J had decided that no ground had been shown to displace the decision of the primary judge i.e. Neaves J.[75] Gummow J described the decision of Neaves J:
“ The primary judge held that the AAT had failed to answer the central question. This was whether in the circumstances of the case it could properly be said that prior to 1 December 1988 the appellant’s impairment, damage to his back, was likely to continue indefinitely, and therefore there was a permanent impairment. Rather, the AAT appeared to have confused the fact of permanent impairment with the ascertainment of the degree of permanent impairment.”[76]
[74] [1993] FCA 499; (1993) 45 FCR 475; 18 AAR 256
[75] (1994) 50 FCR 555; 122 ALR 615; 19 AAR 542 at 569; 630; 556
[76] (1994) 50 FCR 555; 122 ALR 615; 19 AAR 542 at 568; 630; 555-556
When I return to the judgment of Neaves J in Comcare v Brennan, it appears that his Honour did not necessarily decide this issue after consideration. Rather, he accepted, without analysis, the basis on which the parties had argued the case. That was:
“… on the basis that the respondent was not disentitled to compensation under s 24 or 25 of the 1988 Act unless there were a positive finding that the impairment relied upon had become permanent in the relevant sense before 1 December 1988.”[77]
It is apparent from the passage leading up to his Honour’s acceptance that he saw that quite a different interpretation might be given to s 124(3):
“ There is an initial question whether the word ‘impairment’ where it secondly appears in s 124(3) is to be read as meaning ‘permanent impairment’. The view may be taken that it is sufficient, in order to disentitle a person to compensation under s 24 or 25 in respect of a permanent impairment, that the person suffered an impairment (as defined in s 4(1)) before 1 December 1988 whether or not it is possible to say of that impairment that, prior to that date, it was a permanent impairment in the sense that it was likely to continue indefinitely. The alternative view is that it is necessary, in order to disentitle the person to such compensation, that prior to that date the impairment had become permanent in the sense mentioned.
To describe an impairment, as s 124(3) does, as having ‘occurred’ before the commencing date is somewhat curious. The relevant event which ‘occurs’ is the event by reason of which the person suffers injury. An impairment is relevant if it is the result of the injury (see ss 14 and 24). It is clear from the decisions to which I have referred that the legislative intention disclosed by the provisions of Pt X of the Act was, in the terms in which the decision of the Tribunal in Re Willis and Australian Telecommunications Commission (No 2) is expressed, ‘that entitlement to compensation in respect of pre-existing injuries is to be ascertained according to the entitlement provisions of the predecessor Act which was in force at the time the relevant “injury, loss or damage” was suffered’. Might not the legislative intention have been that the same result should follow where, before 1 December 1988, the injury had resulted in an impairment as defined, whether or not that impairment could, prior to that date, be said to be likely to continue indefinitely? Neither party, however, espoused that view of the provision, the matter being argued on the basis that the respondent was not disentitled to compensation under s 24 or 25 of the 1988 Act unless there were a positive finding that the impairment relied upon had become permanent in the relevant sense prior to 1 December 1988.
Accepting that that is the true meaning and effect of s 124(3), it is necessary to turn to the question whether the Tribunal erred in law in reaching the conclusion that the impairment was not permanent in the relevant sense until after 1 December 1988. In my opinion it did so for the reasons which I will state.”[78]
[77] [1993] FCA 499; (1993) 45 FCR 475; 18 AAR 256 at 488; 269-270
[78] [1993] FCA 499; (1993) 45 FCR 475; 18 AAR 256 at 488-489; 269-270
What seems to me to have been the second interpretation adopted by Gummow J in Brennan found favour with the Full Court in Comcare v Levett[79] (Levett).
Mr Levett had been injured before 1 December 1988 and suffered an impairment to his back before that date. It did not become a permanent impairment until after 1 December 1988. The Tribunal had decided that Mr Levett was not disqualified from an entitlement to compensation for permanent impairment under s 24 of the 1988 Act. The Full Court identified the issues that were, and were not, in dispute:“ It is not in issue in this appeal that an employee who suffered an injury before the 1988 Act came into force is entitled to compensation under s 24, if the employee suffered an impairment after it came into force, and the impairment, at the time it occurred, or later, became permanent. What is in issue is whether an employee who suffered an injury in the period before the 1988 Act came into force is entitled to compensation under s 24 if the employee suffered impairment in the same period.”[80]
[79] (1995) 60 FCR 14; 131 ALR 645; 38 ALD 518; 22 AAR 154; Lockhart, Beazley and Moore JJ
[80] (1995) 60 FCR 14; 131 ALR 645; 38 ALD 518; 22 AAR 154 at 17-18; 648; 521; 157
Comcare had argued that s 24 had no operation if an employee suffered an impairment, whether permanent or not, before 1 December 1988 and that impairment was not compensable by a lump sum payment under the 1971 Act, The Full Court rejected the argument saying:
“ In our opinion, the language of s 124 does not sustain this construction; nor is it consistent with the purpose of the 1988 Act as a whole. The 1988 Act is beneficial legislation that should be construed liberally: see the observations of Burchett J in Brennan v Comcare (1994) 50 FCR 555 at 559[PDF]. The words ‘being an impairment or death’ in s 124(3) follow two related phrases, namely, ‘a permanent impairment’ and ‘the death of an employee’. The words ‘an impairment or death’ are a condensation and amalgamation of these two phrases. The entire phrase ‘being an impairment or death that occurred before the commencing date’ is intended to identify a permanent impairment or death with a particular characteristic; namely, it must have occurred before the commencement of the 1988 Act. Section 124(3) is intended to render s 24 inapplicable to a permanent impairment that occurred while the 1971 Act was in force if either the employee had received a lump sum for that permanent impairment. The 1971 Act did not speak in terms of impairment or permanent impairment. Nevertheless, the plain purpose of s 124(3) is to exclude the operation of s 24 in the case of an employee who suffered a disability which, as described in the language of Pt III of the 1971 Act, was not compensable by a lump sum payment or, if it was, a lump sum was paid.
This construction of s 124 gains some support from the references in it to earlier Commonwealth laws. In addition to the reference to the 1971 Act there is a reference to the ‘1912 Act’ and ‘the 1930 Act’. The former is the Commonwealth Workmen’s Compensation Act 1912 (Cth) and the latter is the Commonwealth Employees' Compensation Act 1930 (Cth). Section 4 of the 1912 Act rendered the Commonwealth liable to pay compensation by way of weekly payments in accordance with the First Schedule. No provision was made for lump sum payments other than as a result of the redemption of an entitlement to weekly payment. Similarly s 9 of the 1930 Act provided for weekly payments which could be redeemed as a lump sum: see Sch 1, cl (11); and s 12 provided for the payment of a lump sum for specified injuries which, having regard to their character, were permanent: see Sch 3. We have already referred to s 39 of the 1971 Act which provided for the payment of a lump sum in relation to identified losses flowing from an injury. Section 39(15) provided: ‘In this section, “loss” means a permanent loss.’
Thus, it can be seen that at least in the 1930 and 1971 Acts the nature of the loss for which a lump sum was to be paid was a permanent loss.
The operation of s 24 of the 1988 Act is limited by s 124(3), properly construed, only when a permanent impairment occurred before the 1988 Act came into force.
The construction which we have adopted of s 124(3) is consistent with the judgment of the High Court in Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297[PDF] especially per
McHugh J at 324.”[81][81] (1995) 60 FCR 14; 131 ALR 645; 38 ALD 518; 22 AAR 154 at 18-19; 649-650; 522-523; 158-159
I have stumbled over three conclusions in this passage from the judgment in Levett. The first relates to its conclusion that the words “impairment or death” in the opening words of s 124(3) and again in each of its paragraphs are intended to be an amalgamation of the two phrases used at the outset in the opening words of that provision. Its justification seems to be in its view of the 1988 Act as beneficial legislation and that beneficial legislation should be read liberally. The same might be said of the 1912 Act, the 1930 Act and the 1971 Act. The fact that they are beneficial also suggests that they will be intended to operate with fairness to those to whom they apply. The interpretation favoured by the Full Court pays no regard to that. By assuming that the word “impairment” is to be read as “permanent impairment” does not explain why the words “impairment” and “permanent” are the subject of separate definitions in s 4(1) of the 1988 Act. It does not explain the difference in outcome for two people both injured in the same accident on 1 December 1987 when the 1971 Act was in operation and each was ultimately found to be suffering from two identical impairments as a result of the injury they suffered but each took different times to recover. Each is entitled to compensation in respect of the injury.
The first impairment suffered by each was, for example, the total loss of their sight.[82] Person A lost both his eyes and so there was no question that he had suffered the loss and it was a permanent loss on 1 December 1987. He was compensated for his loss under the 1971 Act. Person B suffered torn retinas and underwent eighteen months of surgery in an attempt to reattach them and restore his sight. Initially, there was some success but, by June 1989, it was clear that the operations had failed and he had lost his sight permanently. On the interpretation favoured in Levett, Person B is entitled to receive compensation for permanent impairment. So far, his situation appears to be consistent with that of Person A but it is not. On the interpretation in Levett, Person B is entitled to be compensated under the more generous provisions of ss 24 and 25 of the 1988 Act because his impairment did not become permanent until after 1 December 1988. That is so even though, ultimately, the impairments are the same and result from the same accident occurring at the time another legislative compensation regime was in force. It is so even though it might be thought that, in these circumstances, s 124(4) was intended to ensure that Person A and Person B would be paid the same amounts. Their impairments had, after all, occurred at the same time and before the commencement of the 1988 Act.
[82] 1971 Act, s 39(2)(a)
In addition to their loss of sight, Person A and Person B also suffered identical back injuries. Person A was older and less fit and was found to have suffered a permanent impairment to his back on 1 July 1988. As no compensation was payable under the 1971 Act in respect of the loss of the use of a person’s back, he was not entitled to any compensation in respect of it. Person B was younger and fitter and the medical evidence was that his impairment to his back could not be said to be permanent until 1 January 1989. On the interpretation favoured by the Full Court in Levett, Person B would receive compensation for permanent impairment under the 1988 Act in respect of a loss which, when it occurred, was not compensable at all under the compensation scheme then in force. The construction of
s 124(3) favoured in Levett does not address the innate unfairness to Person A and looks only to the benefits to Person B.
The second aspect of the passage from Levett that has caused me concern are its third and fourth paragraphs. Certainly, the 1930 Act and the 1971 Act compensated only for permanent loss but that does not lead, without more, to the conclusion that “The operation of s 24 of the 1988 Act is limited by s 124(3), properly construed, only when a permanent impairment occurred before the 1988 Act came into force.” It would seem on the words of
s 124(3) itself that it is also limited by there having been a compensable impairment, or loss, under that earlier legislation.
My third difficulty with the passage from Levett is that the Full Court has not explained how its conclusion is consistent with the judgment of the High Court in Georgiardis. It makes no further reference to Georgiardis in its judgment.
The Full Court in Levett agreed with Burchett and Gummow JJ in Brennan that Blackman should be treated with some caution especially on the question of whether a gradual worsening of a condition can, or cannot, be regarded as a new impairment.[83] It distinguished both Blackman and Brennan:
“… because the Tribunal found as a question of fact in this case that the respondent suffered an injury before 1 December 1988 which resulted in an impairment occurring before that date, but not a permanent impairment. Permanent impairment did not arise until after 1 December 1988. In other words the respondent’s injury produced a pre-1988 Act impairment, but it was not until after the commencement of the operation of the 1988 Act that permanent impairment occurred.”[84]
Blackman was certainly a case in which both impairment and permanent impairment had occurred before 1 December 1988. It is not so clear in Brennan because the point on which the appeal was decided was that the Tribunal had not decided the question of when the impairment became a permanent impairment on proper grounds.
[83] (1995) 60 FCR 14; 131 ALR 645; 38 ALD 518; 22 AAR 154 at 19-20; 650; 523; 159
[84] (1995) 60 FCR 14; 131 ALR 645; 38 ALD 518; 22 AAR 154 at 20; 650-651; 523; 159-160
In Department of Defence v West,[85] the facts had been agreed before the Tribunal. Mr West had suffered an injury in 1968 and that injury had resulted in an impairment that was a permanent impairment. That impairment had occurred before 1 December 1988 and while the 1930 Act was in force. Under the 1930 Act, Mr West was not entitled to a lump sum for permanent impairment at the time that the impairment occurred. The parties had agreed that, as at 1 December 1988, Mr West had suffered an impairment of 10% under Table 9.6 of the 1st edition of the Guide and that, at 18 December 1966, he had suffered a 20% impairment under the same Table.
[85] (1998) 85 FCR 491; 156 ALR 651; 27 AAR 550; 50 ALD 712; O’Connor, Heerey and Merkel JJ
Merkel J, with whom O’Connor J agreed, reviewed the previous authorities of Blackman, Brennan and Levett. His Honour looked at those authorities only in so far as they dealt with the worsening of a permanent impairment. He found that:
“The present state of the authorities can be summarised as follows:
•the gradual worsening of a permanent impairment in accordance with its natural progress does not constitute a series of new impairments each giving rise to a separate liability to pay compensation: see Blackman at 14 and Brennan at 570-571 per Gummow J; cf Brennan at 558-559 per Burchett J;
•the observation in Blackman at 14 that a permanent impairment which worsens significantly or is such that the variation between it and the earlier permanent impairment is substantial does not result in a new permanent impairment is to be approached with ‘some caution’: see Brennan at 558-559 and 560-561 per Burchett J and at 571 per Gummow J and Levett at 20.
The present case requires resolution of the question left unresolved in the current state of the authorities, that is, whether a deterioration in a permanent impairment which existed as at 1 December 1988 is capable of constituting a new permanent impairment.
The caution expressed in relation to Blackman by Burchett and Gummow JJ in Brennan and adopted by the Full Court in Levett suggests a reluctance to accept that a substantial variation, or a significant deterioration, in a person's permanent impairment is incapable of constituting a permanent impairment which is different to that which existed prior to the variation or deterioration.”[86]
[86] (1998) 85 FCR 491; 156 ALR 651; 27 AAR 550; 50 ALD 712 at 511; 668; 569-570; 728
Merkel J went on to decide, consistently with the reasoning of Burchett J in Brennan that:
“… where a change in a permanent impairment occurring after the commencement date is such that, quantitatively and qualitatively, it is properly to be characterised as a further or new impairment occurring after the commencement date it is compensable by a lump sum payment under ss 24 and 25. That conclusion is consistent with the language used and with the statutory policy to be discerned from ss 24, 25 and 124 of providing benefits to workers in respect of a further permanent impairment that occurs after the commencing day irrespective of whether the injury that resulted in the impairment occurred before or after the commencing day. It also avoids capricious and arbitrary outcomes under workers' compensation legislation, which is of a remedial nature and should be construed liberally: see Brennan at 559 and the cases there referred to.”[87]
[87] (1998) 85 FCR 491; 156 ALR 651; 27 AAR 550; 50 ALD 712 at 512; 669; 571; 729
In his dissenting judgment, Heerey J said in West:
“ The present case can be resolved by posing these questions. First, does the respondent have, in relation to his back, a permanent impairment? The answer is: Yes, he has loss of the use of, or malfunction of, his back. He has had that condition since 1968. It will continue indefinitely. Secondly, did that impairment occur before 1988? The answer is: Yes, it occurred in 1968.
In my respectful opinion, Blackman was correct in approaching the issue in essentially this way. ‘Occur’ is an ordinary non-technical English term. ‘Impairment’ is defined in the Act in a way which accords with its ordinary meaning. These terms have to be applied to an infinite range of individual cases. There is no relevant ambiguity in the terms ‘impairment’ and ‘occurred’. In some cases there may be difficulty and uncertainty in applying those terms and determining whether there is a new ‘impairment’ which ‘occurred’ after 1988. It may be that an employee’s condition, to use a neutral term, becomes after 1988 so different in its pathology or in its effect on the employee that an affirmative answer can be given. The respondent's claim however is not such a case.
I do not think the resolution of this case calls for the application of any general principle of construction, other than the proposition that the purpose of the transitional provisions in Pt X is that an employee who suffered injury prior to the 1988 Act is to be no worse off and no better off than he or she would have been had the 1988 Act not been passed: Hoyle v Telstra Corporation Ltd (1997) 75 FCR 390. There is no question but that in 1968 the respondent suffered a serious permanent impairment to his back for which he was, and continues to be, entitled to compensation. However he is not entitled to compensation of a particular kind, namely, a lump sum, which was not introduced until 20 years later.”[88]
[88] (1998) 85 FCR 491; 156 ALR 651; 27 AAR 550; 50 ALD 712 at 500-501; 659; 559-560; 719-720
In Comcare v Luck[89] (Luck), French J decided that:
[89] [1999] FCA 100; (1999) 29 AAR 403
“… it was plainly open to the Tribunal to conclude, as a matter of fact, that the condition which afflicted Mr Luck in 1992 was not an aggravation of the injury he suffered in 1955-1956 but a distinct condition caused by the surgery and to which the pre-existing injury was a contributing factor and alternatively a sine qua non because it necessitated the surgery.
There is nothing in this conclusion which is inconsistent with the language or policy of the provisions of the Act relating to impairment. In Brennan v Comcare Burchett J observed that s 124(3) talks about ‘a permanent impairment’ and ‘that impairment’ and added (at 557; 545):
‘This language is consistent with the analysis I have made of s 24, and with the notion that there may be any number of impairments arising at different times out of the same injury.’
Gummow J, who agreed with Burchett J in the same case, said (at 571; 558):
‘The terms of the legislation are consistent with the imposition of distinct liabilities where an injury results in more than one permanent impairment, and in a particular case those results may be manifested sequentially rather than concurrently.’
In that case Gummow J noted there had been ‘… no findings of fact to indicate that the present case falls into that perhaps unusual category. Ryan J agreed with both Burchett and Gummow JJ.”[90]
[90] [1999] FCA 100; (1999) 29 AAR 403 at [54]-[56]; 416
To this point, the judgment of French J was consistent with Blackman, the dissenting judgment of Heerey J in West and, of course, with the judgment of Burchett J and the earlier passages of that of Gummow J in Brennan. French J then gave his approval to the course subsequently taken by Gummow J in Brennan when he approved the approach in Levett:
“ The absence of any policy inconsistency is highlighted by the decision of the Full Court in Comcare v Levett where impairment from a back injury occurred prior to 1 December 1988 but permanent impairment did not occur until after that date. There, compensation payable under s 24 in respect of the permanent impairment was not limited by the operation of s 124(3). The present case is, if anything, stronger in favour of the claimant’s position than Levett because in the present case the Tribunal has found an ailment which has occurred after 1 December 1988. …”[91]
[91] [1999] FCA 100; (1999) 29 AAR 403 at [57]; 416
In Comcare v Maida[92] (Maida), Mansfield J considered the case of Mr Maida, who had been medically discharged from the Army in September 1988 suffering from paranoid schizophrenia. He applied for compensation for permanent impairment under s 24 of the 1988 Act even though compensation of that sort had not been available under the 1971 Act in force when he was discharged. The Tribunal had found that there was a substantial increase in the level of his impairment and a distinct qualitative difference in the impairment when viewed in terms of the effect of the impairment upon Mr Maida. Mansfield J decided that the Tribunal had, in its decision, taken the view that an increase in the level of symptoms of itself might constitute a further or different impairment so as to bring it under s 24. His Honour concluded that the Tribunal’s view was incorrect.
[92] [2002] FCA 1284; (2002) 36 AAR 69; Mansfield J
In doing so, he adopted the following summary of the law:
“‘20.1 The progression of a disease or gradual worsening of the degree of an impairment does not constitute a new or distinct impairment.
20.2If there is no change in the underlying patho-physiological condition causing an impairment, any worsening of that impairment will not constitute a new or distinct impairment.
20.3A significant worsening of an impairment may constitute a new or distinct impairment, but only if there has been a change in the underlying patho-physiological condition, so that there has been a qualitative change to the impairment – that is, the development of a new impairment.’”[93]
[93] [2002] FCA 1284; (2002) 36 AAR 69 at [28]; 79-80
This summary does not distinguish Maida from either stream of authority and is certainly not inconsistent with the Full Court’s judgment in Blackman or with the dissenting judgment of Heerey J in Brennan. Mansfield J went on to distinguish between a change in degree of permanent impairment and a new impairment:
“ The conclusion that there was a ‘distinct qualitative difference’ in the respondent's impairment after 1 December 1988 is said to be "in terms of the effect of the impairment upon the applicant". That indicates a focus upon the effect or degree of the permanent impairment rather than the nature of the permanent impairment. The degree of a permanent impairment, as noted earlier, is a different concept under the SRC Act from that of a permanent impairment. Moreover, as Gummow J pointed out in Brennan, the use of the Guide to the Assessment of the Degree of Permanent Impairment prepared pursuant to s 28 of the SRC Act as a step in determining the existence of a permanent impairment is erroneous. It is directed to the measure of the degree of permanent impairment, rather than to the existence of a permanent impairment. The Tribunal's use of Table 5.1 of the Guide to assist in determining that the respondent has a qualitatively different permanent impairment at the time of its determination from that which existed at 1 December 1988 is therefore inappropriate. It also indicates a focus upon the worsening of the degree of impairment as evidenced by its consequences, rather than upon the emergence of a new permanent impairment itself.
…
A significant deterioration in the degree of permanent impairment from any injury may indicate that a discernible or measurable underlying pathological change has occurred. Examples readily suggest themselves. An employee may have a back injury producing lower back pain, and subsequently pain extending into the legs indicating the possibility of further pathological change in the lower back so as to impinge upon nerve roots which previously were unaffected. In the case of a condition such as schizophrenia, there may or may not be some further patho-physiological changes which account for a significant deterioration in symptoms. The Tribunal at one point described the significant worsening of the respondent's symptoms, and so of the degree of his permanent impairment, as being "marked by significant alteration". I have concluded that it then erred in failing to determine whether there had in fact been a qualitative change in the patho-physiological condition underlying his schizophrenia, and in regarding a change in the degree of his permanent impairment as itself constituting a new permanent impairment under the SRC Act.”[94]
[94] [2002] FCA 1284; (2002) 36 AAR 69 at [35]-[38]; 82
The final case is that of Comcare Australia v Mathieson[95] (Mathieson).
Mr Mathieson had suffered injuries to both of his knees while serving in the Royal Australian Navy. He underwent surgery on one knee and was discharged in 1975. Over the years, the condition of his knees deteriorated until, in 1998, he was totally and permanently incapacitated for work. In the following year, he applied for lump sum compensation under s 24 of the 1988 Act. The Tribunal set aside Comcare’s decision rejecting Mr Mathieson’s application.[95] [2004] FCA 212; (2004) 39 AAR 450; 79 ALD 518; Weinberg J
On appeal, Weinberg J said of Part X:
“ As with a number of the transitional provisions contained in the 1988 Act, s 124(3) is badly drafted. The section has caused difficulty ever since it was enacted. The issue whether an employee suffered a ‘permanent impairment’ prior to, or after, the ‘commencing date’ is pivotal in determining whether a lump sum is payable. Yet that seemingly straightforward question can sometimes pose real problems.”[96]
In framing the issue in this way, Weinberg J has put to one side the issue identified by Neaves J in Comcare v Brenann and Heerey J in his dissenting judgment in West as well as the general principles stated by the majority of the High Court in Georgiardis and of the Full Court in Blackman. He adopted the reasoning in the latter part of the judgment of Gummow J in Brennan, that of the Full Court in Levett and the reasoning of the majority in West.[97]
[96] [2004] FCA 212; (2004) 39 AAR 450; 79 ALD 518 at [14]; 453; 521
[97] [2004] FCA 212; (2004) 39 AAR 450; 79 ALD 518 at [51]; 462; 529
C.4 Principles from the cases post-dating Blackman
In this case, I have found it difficult to reconcile the cases. It is true that most of the more recent cases set to one side the judgment of the Full Court in Blackman and the dissenting judgment of Heerey J in West.[98] They do not refer to the question raised by Neaves J who heard the appeal at first instance in Comcare v Brennan.[99] They do not go back to the judgment of the majority of the High Court in the early case of Georgiardis to distinguish the general proposition it put forward. Although considering a different point, the general proposition was that a person is not entitled to compensation under ss 24 or 25 of the 1988 Act unless also entitled to a lump sum under the scheme which applied when the injury was sustained.
[98] (1998) 85 FCR 491; 156 ALR 651; 27 AAR 550; 50 ALD 712; O’Connor, Heerey and Merkel JJ
[99] [1993] FCA 499; (1993) 45 FCR 475; 18 AAR 256
As I understand the principles on which the more recent cases are based, they are:
(1)a person may suffer from more than one impairment;[100]
[100] Brennan (1994) 50 FCR 555; 122 ALR 615; 19 AAR 542 at 557; 619; 545 per Burchett J and 571; 632; 558 per Gummow J
(2)the gradual worsening of a permanent impairment in accordance with its natural progression does not constitute a new impairment or a series of new impairments;[101]
[101] West (1998) 85 FCR 491; 156 ALR 651; 27 AAR 550; 50 ALD 712 at 511; 668; 569; 728 per Merkel J and authorities cited therein
(3)an impairment may deteriorate to such an extent that it is qualitatively and quantitatively a new impairment;[102]
[102] West (1998) 85 FCR 491; 156 ALR 651; 27 AAR 550; 50 ALD 712 at 511; 668; 570; 728 per Merkel J
(a)a qualitative and quantitative change leading to a finding that there is a new impairment will only occur if there is a change in the underlying patho-physiological condition;[103]
[103] Maida [2002] FCA 1284; (2002) 36 AAR 69 at [28]; 79-80 and 82 per Mansfield J
(b)the Guide prepared under s 28 of the 1988 Act is not relevant in determining whether or not a person has suffered a new impairment;[104]
[104] Maida [2002] FCA 1284; (2002) 36 AAR 69 at [35]; 82 per Mansfield J
(4)a person injured when a previous legislative regime was in operation is entitled to compensation under ss 24 or 25 of the 1988 Act in respect of an impairment if:
(a)the impairment was first suffered (or occurred) on or after 1 December 1988 and became permanent;[105] or
[105] Brennan (1994) 50 FCR 555; 122 ALR 615; 19 AAR 542 at 566; 628; 554 per Gummow J
(b)the impairment was first suffered (or occurred) before 1 December 1988 but did not become permanent until after that date;[106]
[106] Brennan (1994) 50 FCR 555; 122 ALR 615; 19 AAR 542 at 557-558; 619; 545 per Burchett J; Levett (1995) 60 FCR 14; 131 ALR 645; 38 ALD 518; 22 AAR 154 at 17-18; 648; 521; 57 per Full Court
(5)a person injured when a previous legislative regime was in operation is not entitled to compensation under ss 24 or 25 of the 1988 Act in respect of an
impairment if:
(a)the impairment was:
(i)first suffered (or occurred) before 1 December 1988;
(ii)became permanent before that date; and
(iii)was not compensable under the legislative scheme in operation when the impairment first became permanent.[107]
[107] Blackman
CONSIDERATION
Applying these principles, the first step I must take is to identify the impairment from which Mr Johnston suffered as a result of the injury he suffered in 1967. In view of the definition of “impairment”, that means that I must identify “… 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”[108] resulting from each of his injuries i.e. concussion, lacerations of his scalp, bruising of his chest and right shoulder and neck injury.
[108] 1988 Act, s 4(1)
Cervicogenic headaches
Mr Johnston has two impairments. The first comes under the description of cervicogenic headache. In his own correspondence, he has always been consistent in reporting the way in which the accident in 1967 affected him. In his letter of 14 September 2009 to the MRCC, for example, he said that his headaches had never stopped since the accident.[109] He had said the same in an earlier letter received by the Department of Veterans’ Affairs on 3 March 2008.[110] Mr Johnston has told his GP, Dr Tang, the same thing and
Dr Tang noted in his report of 29 July 2010, that Mr Johnston had reported that he had suffered chronic headaches for over 30 years.[111] The statements made by Mr Johnston’s son and his wife are to the same effect.[112] Mr Michael Shannon, orthopaedic surgeon, recorded in his report of 10 November 2010 that Mr Johnston had ongoing problems with headaches at the time of his discharge from the Army and subsequently.[113] This record is consistent with the note made on Mr Johnston’s claim for compensation made in 1975, with the report ofMr Woodward on 22 May 1974[114] and with a note dated 6 April 1973 that he was suffering from occipital headaches.[115][109] T documents at 158
[110] T documents at 86-87
[111] Exhibit C
[112] Exhibits A and B
[113] Exhibit 1 at 2
[114] T documents at 64
[115] T documents at 40
There is some material that points to a contrary conclusion. The report dated 22 April 2009 of Dr Webster, an Occupational Physician, is one. Dr Webster noted that
Mr Johnston had reported that the headaches had commenced in the 1980s.[116] In a later report, dated 5 June 2009, Dr Webster said that he thought that Mr Johnston’s headaches had become permanent on 1 January 1985.[117] He described Mr Johnston’s earlier pain as “scalp pain” noted by Mr Woodward after the operation in 1974 and distinguished it from the headaches he had suffered since the 1980s. Mr Johnston took issue with Dr Webster’s opinion when he wrote on 9 July 2009 saying that the headaches had never gone away.[118][116] T documents at 145
[117] T documents at 151
[118] T documents at 156
It seems to me that the weight of evidence is that Mr Johnston has suffered from headaches since his accident in 1967. That description, rather than that of scalp pain, is consistent with the documents dating from the 1970s, to which I have referred, and with
Mr Johnston’s own description of the pain. Although there is a change in the intensity of the headaches, and I will come to that, there is nothing in the material that satisfies me that there is any difference in the nature of the pain suffered over the years. In particular, there is nothing in the description given by Mr Johnston or reported as having been given by him that satisfies me that he first suffered from an impairment that could be described as scalp pain and that was anything other than the headaches from which he has stated he has suffered since 1967.
That brings me to consider when the impairment that is described as cervicogenic headaches became permanent. Mr Woodward reported on 22 May 1974 that
Mr Johnston was left with some bilateral occipital aching after the fusion. He was clearly disappointed with the outcome and, by 18 February 1975, reported that Mr Johnston was continuing to experience pain in the back of his neck and scalp. He did not specifically mention his headaches as such but it would seem that his advice applied to all of the symptoms that Mr Johnston was then suffering. Mr Woodward’s advice was that there was “… no more treatment to be undertaken at present and that the present state of affairs is one he will have to tolerate as best he can. …”[119] That would seem to me to be the date on which Mr Johnston’s headaches became permanent.[119] T documents at 69
At that time, in February 1975, the 1971 Act was in operation. It did not provide any compensation for a loss (or impairment as it would be described under the 1988 Act) that comes under the description of headaches generally or cervicogenic headaches in particular.
The outcome would have been no different had I found that his cervicogenic headaches had become permanent at an earlier time when the 1930 Act was in operation. It too did not provide compensation for that condition.
That brings me to the next issue which is whether Mr Johnston has suffered a new impairment even though it too is described as cervicogenic headaches. If he has done so, the next issue will be whether he has done so since 1 December 1988 and, if not, whether any new impairment has become permanent since 1 December 1988.
I accept that Mr Johnston’s headaches have become more intense and occur more frequently. On the evidence, however, I am not satisfied that there has been any qualitative or quantitative change or change in their pathology or underlying patho-physiological condition. By “pathology”, I mean the “… manifestations, [and] characteristic behaviour …” of the headaches.[120] All that has changed is their intensity and frequency and I accept that Mr Johnston finds them debilitating. Therefore, I am not satisfied that
Mr Johnston has suffered a further permanent impairment that is separate from the cervicogenic headaches he has suffered for many years and which was a permanent impairment before the commencement of the 1988 Act. He is not entitled to any compensation in respect of the worsening of his headaches.[120] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
Degenerative cervical disc disease
The second impairment from which Mr Johnston has suffered is degenerative cervical disc disease. On the basis of his own evidence, I find that Mr Johnston has suffered pain in his neck since his accident in 1967. Again, he has been consistent in his description of it in his own correspondence and when recounting his history to medical practitioners.
On the basis of Mr Woodward’s report dated 2 April 1974, I find that
Mr Johnston had already suffered secondary osteoarthritic degeneration at the C6-7 level at the site of an old unreduced traumatic subluxation. The subluxation had occurred as a result of the injuries Mr Johnston had received in the accident in 1967. Mr Johnston had already undergone a fusion operation on the basis of advice that it would lead to his being permanently pain free. By 18 February 1975, Mr Woodward acknowledged that Mr Johnston was still suffering from pain in his neck and he had advised him, as he had in relation to the pain in his scalp. that there was “… no more treatment to be undertaken at present and that the present state of affairs is one he will have to tolerate as best he can. …”[121] That was 1975 and that was when, I find, Mr Johnston’s neck pain had reached the stage where all treatment had been carried out and it was “likely to continue indefinitely”[122] i.e. it was permanent. Therefore, I am satisfied that Mr Johnston’s impairment in the form of the subluxation and subsequent degeneration at the C6-7 level was a permanent impairment on and after 18 February 1975. At that time, the 1971 Act was in operation and it did not provide for compensation for an impairment of that sort.[121] T documents at 69
[122] Definition of “permanent”: 1988 Act, s 4(1)
If Mr Johnston acquired a new impairment in relation to his neck, that might lead to a different outcome. If it were to be a new impairment and, on the more recent authorities to which I have referred, either arise after 1 December 1988 or, if arising before that day, become permanent after that day, he will be entitled to compensation under the 1988 Act. That will be so even though headaches are not compensable under the legislative scheme of compensation in force at the time he was injured.
I accept that Mr Johnston is suffering further pain in his neck. This finding is supported by his evidence[123] and that of his wife and son.[124] It is also supported by the medical evidence. Mr Woodward’s reports provide the medical evidence in evidence in 1975. It is likely that the position in 1975 was much the same as the position revealed in 1983 and again in 1989 when Mr Johnston’s cervical spine was X-rayed.
[123] Particularly at T documents at 159-160
[124] Exhibits A and B
The report of Dr Rodney Taft, dated 27 June 1983, reports:
“There is seen to have been an anterior fusion of the vertebral bodies at the C6-7 level with complete ankylosis of these vertebral bodies. The remaining disc spaces appear normal, except that a little gas is noted adjacent to the antero-superior margin of the body of C5 with the neck extended and this appearance could be due to minimal degenerative change. The intervertebral foramina are all clear. There is noted to be a little generalized limitation of neck movement on the functional films.”[125]
[125] T documents at 74
Six years later, on 14 August 1989, Dr Ian Richter reported on a further X-ray:
“CERVICAL SPINE
A fusion at the C6-7 level is noted which is probably post cervical in nature. The remainder of the cervical vertebrae and disc spaces appear normal. Functional studies reveal a good range of movement with normal vertebral body alignment being maintained. Oblique views show slight prominence of the joints of Luschka at the C5-6 level on the right side but no definite osteophytic encroachment into the intervertebral foramina can be seen. No underlying infective nor neoplastic bone disease can be detected.
COMMENT: Evidence of a previously performed bony fusion at the C6-7 level is noted but no significant degenerative change can be seen.”[126]
[126] T documents at 75
By 1998, the position was a little different. Dr A Vellios reported on 31 March 1998:
“Firm surgical bony fusion of bodies of C5 and C6 is noted. The alignment of the cervical spine is satisfactory without any instability demonstrated on the lateral functional views. Small limbus vertebrae at the C4-C5 level are of doubtful significance. Moderate C4-C5 disc space narrowing with marginal osteophytes indicate disc degenerative changes. The other cervical levels are normal. The atlanto-axial joint is normal. No cervical ribs are present.
CONCLUSION – Firm bony fusion of the bodies of C6 and C7. Moderate C4-C5 degeneration.”[127]
Dr Vellios reported again when Mr Johnston had a further X-ray on 21 February 2003. He compared it with the X-ray he had taken in March 1998 and found:
“… Appearances are essentially unaltered over the interval period of five years.
The fusion of the bodies are essentially unaltered over the interval of five years.
The fusion of the bodies of C6 and C7 is seen as is moderate C4-C5 disc degeneration.
There is no active pathology suspected.”[128]
[127] T documents at 77
[128] T documents at 79
An MRI taken on 11 October 2005 were reported on by Dr Richter:
“There is anterior bony fusion at the C6-7 level with disc space narrowing at this site, consistent with previous surgery. There is mild disc space narrowing at the C4-5 level with early subchondral bony sclerosis and slight anterior wedging of the fourth and fifth cervical vertebral bodies. Oblique views reveal minimal osteophytic encroachment into the intervertebral foramina at the C3-C4 and C4-5 levels on the right hand side.
No evidence of a recent fracture nor underlying infective nor neoplastic bone disease could be seen. No evidence of a bony cervical rib could be detected.”[129]
[129] T documents at 80
When he wrote to Dr Tang on 12 April 2007, Mr Christopher Thien, Neurosurgeon, said that he was pleased with the results of the MRI. He thought that it:
“… actually looks quite good. His previous fusion at C5-6 level was quite solid. The levels below show mild change without evidence of significant neural compression.
I have, therefore, reassured him that it is unlikely that surgery would be of further help to him. I would, however, encourage physiotherapy as [sic] lot of his problems appear to be cervicogenic headache and some times physiotherapy may be indeed very helpful for this.”[130]
[130] T documents at 82
Dr Greg Conlan, of the Northcote Chiropractic Clinic, referred to an X-ray taken on 3 August 2010. I do not have a copy of the report of that X-ray and I have taken
Dr Conlan’s comparison of the two from his letter dated 26 August 2010:“Radiological comparison between plain x-ray films taken on 31/03/98 and 3/08/10 demonstrates marked degenerative change. The change to the neuricentral and posterior facet joints in the mid-level cervical spine is quite severe with progressive worsening of the scoliotic angle. Osteophytic growth at the posterior facet joint margins has significantly increased. …”[131]
[131] Exhibit E at 1
Dr Conlan went on to express his opinion about Mr Johnston’s neck condition which had worsened since he had become a patient at the clinic in 1998:
“… Since the facet joints are a large determining factor in the neck range of motion we can expect changes in Mr Johnston’s capacity to use his neck.
These radiological changes are consistent with the progressive loss in neck range of movement suffered by Mr Johnston in his time at my clinic. The range of motion is [sic] his neck has reduced significantly and during times of pain exacerbation his range can be very limited.
As stated earlier it is my opinion that Mr Johnston’s neck is progressively worsening. This is not an unexpected sequelae or secondary result following neck injury and fusion surgery. Fusion surgery is known to raise the potential for accelerated segmental degeneration above and below the fused segment. The presumed mechanisms thought to include the increased motion load through loss of one joint as well as the effective loss of one absorptive intervertebral disc.
The cascade of degenerative change is moving through the restabilization phase where we can expect progressive osteophyte formation, increased stiffness and reduced range of movement in his neck with the passage of years.”[132]
[132] Exhibit E at 1-2
Mr Richard McArthur, an Orthopaedic Consultant, came to a similar conclusion in his report of 6 January 2011.[133] After noting that Mr Johnston’s subluxation at C6-7 was not recognised until he saw Mr Woodward, he also noted that Mr Woodward:
“… stabilized his neck by performing and [sic] anterior cervical fusion at the C6-7 level. The fusion has remained solid as was demonstrated by serial X-rays although slight forward angulation at the C6-7 level persisted which did not compromise his cervical spinal cord or the adjacent nerve root.
…
The neck pain would appear to be due to degenerative spondylosis at the C4-5 level and a reasonable assumption can be made that the development of the cervical spondylosis at C4-5 was contributed to by the cervical fusion at the C6-7 level.
The question arises as to when the degenerate cervical disc disease as [sic] result of the C6-7 cervical fusion became permanent. Degenerate change at the C4-5 level was first definitely identified on X-rays obtained on the 31.03.98. This degenerative change would have taken some years to develop. A reasonable assumption can be made that the degenerative change at the C4-5 level became permanent in the early 1990’s.”[134]
[133] Exhibit F
[134] Exhibit F at 8-9
Mr Michael Shannon, Orthopaedic Surgeon, recorded a similar history in his report dated 10 November 2010.[135] He also expressed the view that:
“… it is an inevitable consequence of a fusion operation that increased stress will have the potential to result in degenerative change at adjacent levels and this appears to be the case, although the reports would suggest that he does not have severe degenerative change and an MRI scan has apparently not shown any other severe pathology.”[136]
As to whether Mr Johnston’s “neck problem”, as he described it, was permanent, Mr Shannon
adopted an interpretation of “permanent” consistent with that in s 4(1). He concluded:
“… I think that the … neck problem, became permanent within say 10 years of the injury and definitely prior to 1 December 1988. Nevertheless the condition has apparently deteriorated somewhat since December 1988 …”[137]
[135] Exhibit 1
[136] Exhibit 1 at 5
[137] Exhibit 1 at 6
Having regard to all of the medical evidence, I have concluded that the impairment, in the sense of “damage or malfunction” of Mr Johnston’s spine was initially a subluxation at the C6-7 level. A “subluxation” is an incomplete dislocation.[138] The first sign of degenerative change appears on the X-ray films on 27 June 1983 and is recorded by
Dr Taft. It is degeneration at the C5 level. It is a different form of “damage or malfunction” to Mr Johnston’s spine. That difference lies in its pathology as degeneration and an incomplete dislocation neither manifest themselves in the same way nor have the same characteristics.[138] Blakiston’s Gould Medical Dictionary, 4th edition, 1979, McGraw-Hill Book Company, New York
As it is a separate impairment, I must now decide when it became permanent. Mr Shannon said that degeneration was an inevitable consequence of the fusion operation and Mr McArthur certainly attributed the degeneration at the C4-5 level to the C6-7 fusion that Mr Johnston had undergone. Mr McArthur thought that it was a “reasonable assumption” that the degenerative change became permanent in the early 1990s. Mr Shannon’s opinion was that permanency dates from a time preceding 1 December 1988. I prefer the view of
Mr McArthur rather than that of Mr Shannon for his view finds greater support in the radiological evidence I have set out above. The report of Dr Taft on 27 June 1983 says that the “…The remaining disc spaces appear normal, except that a little gas is noted adjacent to the antero-superior margin of the body of C5 with the neck extended and this appearance could be due to minimal degenerative change. The intervertebral foramina are all clear. …”.[139] The report is expressed in terms of possibility and not enough on which to base a finding that degenerative change had been identified in 1983. I find support for my conclusion in the report of Dr Richter dated 14 August 1989. He could find “no significant degenerative change” at the time. Degenerative changes were definitely noted by Dr Vellios on 31 March 1998. Taking his evidence with that of Mr McArthur, I find that the degenerative changes to Mr Johnston’s neck became permanent some time after 14 August 1989.[139] See [99] above
At that time, the 1988 Act was in force. As I understand the principles established by the more recent authorities, Mr Johnston is entitled to have his claim for permanent impairment in relation to degenerative cervical disc disease considered under the 1988 Act.
Assessment of entitlement under the 1988 Act in respect of degenerative cervical disc disease
A.Entitlement to compensation for permanent impairment
The amount of compensation payable to an employee under the 1988 Act is an amount that is the same percentage of the maximum amount ($80,000[140]) as the percentage that Comcare determines under s 24(5).[141] Under s 24(5), Comcare is required to “… determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide”. The degree of permanent impairment is expressed as a percentage.[142] As it is the degree of permanent impairment of “the employee” that is assessed, it is the degree of impairment of the whole person (who is the employee) that is assessed.
[140] 1988 Act, s 24(9)
[141] 1988 Act, s 24(4)
[142] 1988 Act, s 24(6)
The Guide sets out:
“(a) criteria by reference to which the degree of permanent impairment of an employee resulting from an injury shall be determined;
(b)criteria by reference to which the degree of non-economic loss suffered by an employee as a result of an injury or impairment shall be determined;
(c)methods by which the degree of permanent impairment and the degree of non-economic loss , as determined under those criteria, shall be expressed as a percentage.”[143]
In preparing criteria for the purposes of the first two criteria or in varying them:
“… Comcare shall have regard to medical opinion concerning the nature and effect (including possible effect) of the injury and the extent (if any) to which impairment resulting from the injury, or non-economic loss resulting from the injury or impairment, may reasonably be capable of being reduced or removed.”[144]
[143] 1988 Act, s 28(1)
[144] 1988 Act, s 28(6)
A Guide prepared by Comcare and any variation or revocation of it must be approved by the Minister.[145] A Guide that has been prepared by Comcare, a variation of it or a revocation of it is a legislative instrument made by the Minister on the day on which the Guide, its variation or revocation is approved by the Minister.[146]
[145] 1988 Act, s 28(3)
[146] 1988 Act, s 28(3A)
Any decision-maker making decisions under the 1988 Act regarding the assessment of the degree of permanent impairment of an employee resulting from an injury must do so under the relevant provisions of the Guide; this Tribunal no less than Comcare.[147]
[147] 1988 Act, s 28(4)
An employee’s entitlement to compensation for permanent impairment is qualified. As Mr Johnston’s claim does not relate to a hearing loss or to an impairment constituted by the loss of the sense of taste or smell or by the loss, or the loss of the use of a finger or toe, only the qualification in s 24(7) is relevant. Subject to a qualification which is not relevant in this case, it provides:
“… 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.”
B. The evidence refers to the 1st edition of the approved Guide but should it be the 2nd?
The submissions were made and the evidence given on the basis that it is the 1st edition of the approved Guide under which I must make the assessment. The reports of
Dr Webster,[148] Dr Tang,[149] Mr Shannon[150] and Mr McArthur[151] make that clear. That Guide was approved by the then Minister on 27 July 1989 (1st edition approved Guide) and revoked by Comcare on 1 September 2005.[152] Comcare’s instrument of revocation was approved by the Minister on 8 September but the Minister stated that his instrument of approval commenced on 30 September 2005.[148] T documents at 146-147
[149] Exhibit D
[150] Exhibit 1 at 6
[151] Exhibit F at 9
[152] Federal Register of Legislative Instruments F2005L02587
In the same instrument of approval, the Minister approved the 2nd edition of the Guide made by Comcare on 1 September 2005 (2nd edition approved Guide). Again, the instrument of approval commenced operation on 30 September 2005 so that the approval for making the 2nd edition approved Guide came into operation immediately upon the revocation of the 1st edition approved Guide. The 2nd edition approved Guide was registered as a legislative instrument on 30 September 2005.[153]
[153] Federal Register of Legislative Instruments F2005L02586
Subject to certain qualifications if a legislative instrument would take effect before its registration, s 12 of the Legislative Instruments Act 2003 (LI Act) provides for the day on which it takes effect. Of relevance in this case is s 12(1)(a), which provides that it takes effect from the day specified in the instrument for the purposes of the commencement of the instrument or of a provision. This is the path taken by the 2nd edition approved Guide when it provides for the transition from one edition to the other. It states in part:
“Except as provided below, the first edition of the Guide is revoked in relation to determinations made under sections 24, 25 or 27 of the SRC Act [1988 Act] in respect of claims made under those sections received by the relevant authority after 28 February 2006. Claims made under those sections received on or before 28 February 2006 will be determined under the provisions of the first edition of the Guide.
Part 1 of this Guide will apply on and from 1 March 2006 in relation to determinations made under sections 24, 25 or 27 of the SRC Act in respect of claims under those sections, other than defence-related claims, received by the relevant authority after 28 February 2006.
Part 2 of this Guide will apply on and from 1 March 2006 in relation to determinations made under sections 24, 25 or 27 of the SRC Act in respect of the defence-related claims under those sections received by the relevant authority after 28 February 2006.”
There are other qualifications in the transitional provisions but, on its face, this would seem to be the relevant provision given that Mr Johnston made his claim for permanent impairment under s 24 on 3 October 2008. There may, however, be considerations that I have overlooked. Consequently, I am giving the parties the opportunity to consider and make any submissions they wish regarding the Guide under which the assessment of Mr Johnston’s permanent impairment must be made. I am also giving them the opportunity to obtain any further evidence they consider relevant for Table 9.6 of the 1st edition approved Guide is quite different from the relevant table in Chapter 9 of the 2nd edition approved Guide.
C.Decision
For the reasons I have given, I:
1.affirm the decision of the respondent dated 19 October 2009 affirming the determination dated 15 June 2009 rejecting liability for compensation for permanent impairment in respect of chronic cervicogenic headache;
2.in respect of the decision of the respondent dated 19 October 2009 affirming the determination dated 15 June 2009 rejecting liability for compensation for permanent impairment in respect of degenerative disc disease as a result of C6-7 cervical fusion:
(1)set the decision aside; and
(2)substitute a decision that the respondent is, subject to Part II of the Safety, Rehabilitation and Compensation Act 1988, liable to pay compensation to the applicant for permanent impairment in respect of degenerative disc disease; and
3.adjourn further consideration.
I certify that the one hundred and twenty preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: .......................................................................
Leah Berardi, Associate
Dates of Hearing 2 August 2010, 31 March 2011
Date of Decision 24 June 2011
Representative for the Applicant Mr J Horan
Counsel for the Respondent Ms A McMahon
Solicitor for the Respondent Ms S Langford
DLA Piper Australia
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