Kay and Comcare
[2003] AATA 967
•26 September 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 967
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2001/19
GENERAL ADMINISTRATIVE DIVISION
)
Re BARRY JAMES KAY Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms A F Cunningham (Part-time Member) Date26 September 2003
PlaceHobart
Decision The decision under review is affirmed.
[Sgd A F Cunningham]
Part-Time Member
CATCHWORDS
Compensation – Commonwealth employee – whether permanent impairment permanent pre 1 December 1988 – whether further compensable impairment occurred post 1 December 1988.
Compensation (Commonwealth Government Employees) Act 1971 – ss39(14)
Safety, Rehabilitation and Compensation Act 1988 – ss4,24,124
Hoyle v Telstra Corporation Limited (1997) 145 ALR 148
Re Maida and Comcare (2001) 64 ALD 734
Re Blackman and Australian Telecommunications Corporation (1990) 12 AAR 11
Department of Defence v West (1998) 85 FCR 491
REASONS FOR DECISION
26 September 2003 Ms A F Cunningham (Part-time Member) 1. The applicant has sought the review of a decision made on 6 September 2000 by Comcare that the applicant was not entitled to compensation for permanent impairment under the provisions of s24 of the Safety, Rehabilitation and Compensation Act 1988 (“the 1988 Act”). The decision was subsequently affirmed by a review officer on 25 January 2001.
2. The applicant was represented by Mr Richard Howroyd and gave oral evidence before the Tribunal. Oral evidence was also given on behalf of the applicant by Linda Maree Ransley, the applicant’s partner and Dr Graham David Scarr, the applicant’s general practitioner. The respondent was represented by Mr Brian Morgan who called evidence from Mr Peter David Stevenson, general physician. The T documents were submitted pursuant to s37 of the Administrative Appeals Tribunal Act 1975.
3. The applicant’s claim for permanent injury was made on 7 August 2000 in respect of his condition of “low lumbar back pain” sustained on 3 October 1977 and accepted by the respondent on 23 January 1978. From that date the applicant was paid weekly compensation.
4. Counsel for the respondent contended that the applicant’s impairment arising out of the injury sustained on 3 October 1977 became permanent prior to 1 December 1988, the date when the Safety, Rehabilitation and Compensation Act 1988 (“the 1988 Act”) came into force. Mr Morgan argued that as the applicant was not entitled to a lump sum payment for a back injury under the provisions of the Compensation (Commonwealth Government Employees) Act 1971 (“the 1971 Act”) on the grounds that no provision was made for lump payments relating to the back, under the provisions of s124 of the 1988 Act, the applicant would not be entitled to compensation.
5. It was submitted by counsel for the applicant that it was open for the Tribunal to find that either the applicant’s impairment had not become permanent prior to the introduction of the 1988 Act, or alternatively if it had, the applicant had suffered a further impairment of at least 10% which was compensable under the provisions of the 1988 Act.
The Evidence
6. It was accepted that the applicant suffered a back injury in 1974 whilst working for Jackson’s Transport. As a result of that injury the applicant underwent a laminectomy operation in 1974. It was contended by the applicant that he recovered completely from this injury and was able to return to work in 1975. It was argued on behalf of the respondent that there was evidence that the applicant suffered ongoing problems with his back following the 1974 injury and was in receipt of weekly compensation payments until he commenced his employment with the Australian Broadcasting Corporation (ABC) in 1975.
7. The injury to which the present claim relates was sustained on 3 October 1977 during the applicant’s employment with the ABC. It was the applicant’s evidence that he sustained his injury after falling backwards and hitting his back on a rail in the course of carrying a double locker with another employee, who without warning dropped his end of the locker. The applicant said the pain was unbearable and he “felt it everywhere”.. He was taken back to the ABC by another driver and subsequently saw a doctor. His treatment included plaster casts and pain blocks. He underwent physiotherapy and hydrotherapy for some years, but no surgery was performed until 1989 by Mr Binns.
8. The applicant said he returned to work after the 1977 accident for a short period only. The applicant was retired from the ABC on the grounds of invalidity on 24 May 1978. Thereafter he was in receipt of a workers’ compensation benefit from the Commonwealth.
9. The applicant described his pain and the level of incapacity prior to and following the operation by Mr Binns in 1989. The applicant said that he was constantly in pain, that the intensity of the pain varied and he would have some “good days”. The applicant informed the Tribunal that on the day of the hearing, namely 25 June 2003, he was having a “pretty good day”.
10. The applicant stated that prior to the 1989 operation his pain was “really, really bad”. For a few months following the operation, the applicant’s condition improved and he was optimistic that the operation had been successful. Unfortunately however, the pain returned to a level similar to that prior to surgery. The applicant informed the Tribunal that whilst he never had a “good day” prior to surgery, and on some of the very bad days he felt suicidal, since the operation there are times when he enjoys “a good day”.
11. The applicant described his current pain, which he says is in his back, backside, groin and both legs, but in the left leg mostly. He described how he suffers from leg convulsions whilst lying down at night and generally cannot sleep for more than 4 hours at a time. He uses a walking stick 99.9% of the time and when his pain is really bad, he uses a wheelchair. The applicant said that he endeavours to walk as much as possible, but is restricted to approximately 50 yards in each direction because of his pain. He regularly consults his general practitioner, Dr Graham Scarr who has prescribed Valium, Panadeine-Forte and Palsium.
12. The applicant informed the Tribunal that Comcare had paid for the services of an independent health carer to attend him twice a week and that he had also been assisted by his son for several years who became his full-time carer.
13. The applicant is now married to Linda Maree Ransley, who at one time was employed by the Department of Health Care Services to care for the applicant. Ms Ransley gave evidence on behalf of the applicant as to what she does to assist him in his personal care and home duties. Ms Ransley informed the Tribunal that she still works as a carer approximately 11 days each fortnight. The applicant spends most of the day of his own as Ms Ransley leaves home at 6.20 am and does not return until around 7.40 pm.
14. Dr Scarr informed the Tribunal that the applicant first consulted him in early 1984 and has seen him regularly since that time, currently every 2 or 3 weeks. In Dr Scarr’s opinion the applicant has “chronic burnt out back pain from injuries, disc injuries with resultant now presumed arachnoiditis”. As well, Dr Scarr stated, the applicant has secondary depression and dysfunction. The applicant’s arachnoiditis has been brought about, Dr Scarr said, as a result of the interference with the applicant’s back through surgery. In Dr Scarr’s opinion, it was the second procedure performed by Mr Binns that was the main cause of the resultant arachnoiditis.
15. Dr Scarr described the first operation performed on the applicant’s back as a “micro-discectomy”.. He said that this is the simplest of laminectomies in that just part of the offending disc which is pressing on the nerve is removed. Dr Scarr informed the Tribunal that he had no knowledge of the extent of the first operation on the applicant’s back.
16. Whist Dr Scarr conceded that the MRI scan dated 20 February 1989 revealed a moderate degree of lateral recess stenosis, bilateral at the L-5/S1 level, he did not agree with Dr Stevenson’s conclusion that the applicant’s condition was solely attributable to spinal canal stenosis, a degenerative condition. Dr Scarr contended out that Dr Stevenson’s report was written from a theoretical point of view and that he does not have the clinical experience possessed by Dr Scarr in seeing and treating patients on a regular basis.
17. Dr Stevenson gave evidence on behalf of the respondent and two medical reports prepared by him dated 11 November 2002 and 2 June 2003 were tendered in evidence. Dr Stevenson referred to medical reports regarding the applicant’s condition, the earliest being that of Mr P S H Brown, orthopaedic surgeon, dated 10 November 1977.
18. Dr Stevenson also opined that the applicant has chronic pain syndrome the major cause of which, in his opinion, was the extensive fibrosis and scarring following the multilevel decompression he underwent in 1989. In Dr Stevenson’s opinion “the underlying degenerative disc disease is the necessary and sufficient cause for disc prolapse and disc pathology. The external forces may cause complication or aggravation, but the pathology of the disc progresses without such external stressors”. Dr Stevenson said that both the 1974 and 1977 accidents were aggravations of the applicant’s underlying spinal degenerative process. It was Dr Stevenson’s opinion that the 1974 injury was the more significant as it required surgical intervention after the injury was sustained. Dr Stevenson stated: “his recovery from 1977 incident seems not bad, and throughout the 1980’s there was a considerable body of medical opinion wondering why Mr Kay did not go back to work. Probably he would have advantaged himself here if he had done so. One cannot therefore conclude that the incident of 1977 was, in terms of kinetics, trauma or pathology, either unique, primary or devastating”.
19. In response to a question as to whether the applicant suffered an impairment as a result of the 1977 injury, he stated: “First of all there would be no impairment from any injury suffered on 3 October 1977 unless Mr Kay had the underlying condition of lumbar degenerative disc disease. His risk of suffering any impairment in that incident was significantly increased by the fact that he had had previous injury in 1974 and this was further increased because he had required surgery for that injury. Although he said he went back to running and playing golf, which is quite possible, there was an underlying and pre-existing degeneration and impairment and it is necessary to address that.”
20. It was Dr Stevenson’s opinion that prior to the 1977 incident, the applicant had an underlying whole person impairment of between 8 and 10%. On the basis of the medical report of Mr Turner in March 1988, it was Mr Stevenson’s conclusion that by late 1988 i.e. prior to 1 December 1988, the applicant would have had close to a 10% whole person impairment on the Comcare Guidelines.
21. Dr Stevenson stated that the applicant’s present impairment is 20% whole person, most of which he says is due to “spinal fibrosis consequent on his wide spread surgery in 1989. This is unusual surgery which now would probably would not be performed for that indication”.
22. In Dr Stevenson’s opinion “the 1989 surgery was not indicated as a consequence of the pathologically unknown 1977 incident. The major indications at the time would seem to have been the weakness and scarring after previous surgery in 1974 and the underlying condition of degenerative disc disease”.
23. Dr Stevenson’s conclusion was that “It is very difficult to identify an evidenced based permanent impairment for the 1977 event”. In his opinion only a few percent of the 10% impairment rating on the basis of Dr Turner’s examination prior to 1 December 1988 was due to the Commonwealth related injury in 1977. Whilst he has assessed the applicant’s current degree of impairment at 20%, in his opinion most of this relates to the underlying condition, the previous surgery and the consequences of the 1989 surgery for degenerative disc disease. Dr Stevenson stated that in his opinion between 0 and 5% of the impairment rating would be due to the Commonwealth related injury.
24. There were varying accounts as to the circumstances in which the applicant was injured in the “1974 incident”. It was the applicant’s evidence that the incident occurred at a railway station where he was teaching a young chap “the ropes”.. The applicant said that he was on the railway trap when the young chap had offered to move the truck forward, but failed to stop. The applicant put his foot on the truck which then moved forward and he fell down with a bag of cement in his arms. He disagreed with Mr Binns’ account of the incident that he simply developed left-side sciatica whilst carrying a bag of cement at work. He also disagreed with Mr Turner’s account who reported that the applicant was “caught between a truck and a railway carriage”.
25. It was submitted by counsel for the respondent that the applicant was totally incapacitated following the 1977 accident, that is, prior to the introduction of the 1988 Act.
26. Mr Morgan suggest that the Tribunal should focus on the results of the two respective injuries in order to determine the long-term effects of the injuries. Mr Morgan referred to Dr Stevenson’s evidence where he concluded that the most significant of the injuries was the 1974 injury because it required surgical intervention. It was Mr Morgan’s contention that whilst the applicant claimed that he had totally recovered from the effects of the 1974 injury, there was evidence to suggest that he did not.
27. Mr Morgan urged the Tribunal to place more reliance on the documented evidence of the applicant’s history rather than the applicant’s oral account which relied on his memory of events occurring over 20 years ago, and in some instances almost 30 years ago.
28. In particular, Mr Morgan referred the Tribunal to the following documents:
Medical officer’s report of the applicant dated 27 May 1975 (T3) at page 17 where it is reported “story of disc prolapse, despite removal of symptoms after laminectomy would suggest some possibility of recurrence”, and further a statement that the applicant “has had diminished tendon jerks in the lower limbs for many years”.
Medical report of Mr P S H Brown, (T9) dated 10 November 1977 in which he states: “Previously Mr Kay has had trouble with his back from a disc lesion which was treated by Mr Vernon Chen in 1974 when he had a laminectomy performed. I understand he has had some symptoms in his back since that time but has been at work fairly continuously for the past two and half years.”
The applicant’s sick leave record dated 30 May 1978 (T16) which recorded an absence of 2 days and 6 hours between 14.7.76 and 16.7.76 reason “back pain”; absence on 31.8.1977 for 1 hour, 30 minutes, reason “back injury”; absence on 5.10.1977 to 24.5.1978 139 days, reason low lumbar back pain (referrable to the 1977 accident).
Report from Douglas Parker dated 9 June 1978 (T18) “During the past 3 years while he has been employed with the ABC he has had no real trouble with his back. He has been able to do all his work with no difficulty and has not lost any time from his back disability. He stated that he had occasional pain in the lower back at times”.
Report of from Dr D W L Parker dated 22.8.1980 (T27) “Patient is completely incapacitated and unable to do any work”.
Report of Dr D W L Parker dated 1 July 1981 (T35) “His condition is unchanged. The patient is completely unemployable and qualifies for the invalid pension”.
29. Whilst Phil Dening, manager of Industrial Rehabilitation Service Pty Limited reported on 25 October 1988 (T58) that “Mr Kay superficially appears to have some potential for returning to the work force”, Mr Dening suggested that one or two rehabilitation steps should be undertaken to assess the veracity of Mr Kay’s inclination to be rehabilitated. He concluded “it would seem realistic that he could obtain part-time work as a driver or in some other similar type position”.
30. In a report dated 7 November 1988 (T60), Irene Nissen, Occupational Therapist/Ergonomist, Industrial Rehabilitation Service reported that the applicant was keen to do other kinds of work which do not involve manual work. The evidence was that the applicant never returned to any type of paid employment. At the time of that report, the applicant was using a TENS machine and occasionally wearing a brace or corset. The report summarised the applicant’s physical limitations as, having to do work sitting down, requiring a chair with a tilted seat or a kneeler chair, being only able to stand for a short period before having to sit down and walk around, requiring a standing support if having to stand up, being able to do infrequent lifts up to 6 kgs in between shoulder and knuckle height and preferably lighter items than 6 kgs, not being requested to work in cold surroundings. Ms Nissen reported “With the above limitations I do not see any possibility for Mr Kay to return to his former position.”
31. Mr Dening reported on 30 November 1988 that “Mr Kay has demonstrated potential for improvement as a result of the rehabilitation assessment and following this, the functional assessment. These steps have confirmed the nature of his limitations but recommended that he appears to be performing below his optimal condition. There is certainly no guarantee that he will be able to return to full-time employment in the work force and realistically at this stage, I have recommended that part-time work is likely to be the most achievable goal….
“Mrs Bingham has verbally indicated that Mr Kay is likely to gain greater mobility and range of movement although not necessarily reduce his pain levels.”
32. The report stated that a six week physiotherapy program (12 visits) was planned aimed at maximising the applicant’s “physical ability and focusing on translating that functional capacity into vocational potential”.
33. Whilst at that stage it appeared that the applicant was indicating a positive approach to resuming some form of employment, it would appear that the emphasis was to try and to increase his physical capacity and general fitness, focusing on his motivation towards job seeking within his capacity. There appeared to be no guarantee of an improvement in his clinical condition or reduction of pain level.
34. On 16 March 1989, Mr Dening reported that the rehabilitation program had been delayed because the applicant had difficulty organising regular transport and was unable to cope with bus travel for the distance required. Mr Dening stated that “During mid December 1988, Mr Kay again reported increasing symptoms of back pain and his condition appears to have deteriorated during January. He reported numerous contacts with his GP, Dr G Scarr for the purpose of pain relief.”
35. After being referred to Mr F Binns, orthopaedic surgeon, an unsuccessful myelogram procedure was performed and he was then scheduled for another attempt on 22 March 1989. Mr Dening noted that the applicant reports “being in extreme pain and discomfort and spending a great deal of time in bed”.
36. On 18 April 1989, Mr Binns reported that he first saw the applicant on 13 March 1989 at St Helen’s Hospital where he had been admitted by his own general practitioner. That the applicant had told him that “the constant pain was getting him down and he would like to consider an operation”. Mr Binns noted that the applicant had had two attempts at a myelogram which were unsuccessful and that arrangements had been made for a repeat of the procedure using a special X-ray machine and technique only available at the Royal Hobart Hospital. At that stage he had not made any arrangements to operate on the applicant’s back until consideration of the myelogram procedure.
37. Mr Binns reported on 16 January 1990 that the myelogram revealed “grossly abnormal spinal canal. It was very difficult to be sure of the exact underlying pathology in his lower lumbar spine. Accordingly I gave Mr Kay a guarded prognosis for any further spinal surgery. He went home and thought things over.
He decided to have an operation in view of the severity of his symptoms and accordingly he was admitted to Calvary Hospital and on the 7.6.1989 I explored his lower lumbar spine. He has gross spinal canal stenosis. He has a lot of disc ridging but no specific disc bulging. A wide decompress of the lower lumbar spinal canal was performed. His post-operative progress was satisfactory and he was discharged from hospital some ten days post-operatively.
He was seen again on the 10.7.1989. He was much better than the pre-operative state. He had some mild backache. His left leg tended to jump a little at night in bed. He had no sciatica. He was taking no analgesics.”
38. Later in the same report Mr Binns stated that he saw the applicant again on 16 August 1989 when there was some further improvement and he advised him to continue with his exercises. When Mr Binns last saw 27 September 1989, he reported that he had some mild back pain and no sciatica. Mr Binns went on to state “He tried to go back to work driving a truck but found that he couldn’t manage. He was taking very occasional tablets. He was very pleased with the result of the operation. He could walk a lot further and was in general just pottering around at home.
He had a good range of movement of his back. He as a little tender over the surgical scar. Straight leg raising was to ninety degrees in both right and left legs and this caused him some pain in the back. There was no abnormal neurological findings in the legs.
At this time I discharged him back to the care of his own local doctor.
…
Recently a wide decompression of his spinal canal has been done and this has considerably, but not completely, relieved him of his symptoms. I really don’t see what further we can do to improve matters and I think he will have to put up with things as they are. He is certainly not fit for heavy manual labour. I think it is highly unlikely that he will ever be able to return to the work force. Certainly he would be fit for light work only if some such could be found for him. I do not consider that he requires taxi travel.”
39. Dr Peter Dunne reported on 31 July 1986, the applicant continued to attend the Bridgewater Health Centre complaining of severe back pain and on occasions he had prescribed Fortral 25 mg. He stated that the applicant’s back pain was by no means constant and that he was able to do limited work around the house. In his opinion however, he doubted that the applicant would be able to return to the work force.
40. Mr Morgan put the following description of the applicant’s medical condition to Dr Scarr and asked him whether it was a fair reflection of his current condition: “Constant low back pain exacerbated by virtually all activities and on virtually all occasions; can perform most activities if only done for a short while and if he takes frequent and often prolonged rests; if his back pain has been exacerbated to any extent he has to rest in bed for two to three days”.. Whilst Dr Scarr could not confirm that the applicant would be in bed for two to three days, he agreed that this description was consistent with his history and what the applicant tells him, his physical examination and the treatment that he has undergone since 1989. Mr Morgan then pointed out that this was a description that the applicant had given to a physiotherapist on 23 November 1988, i.e. prior to the surgery that he underwent with Mr Binns in 1989. Dr Scarr commented that whilst there was a brief period of time when the applicant was better after the surgery, “certainly he is back where he was prior to surgery”.. Dr Scarr stated that this was the reason why the dorsal column simulator was inserted. Dr Scarr also stated that he vaguely remembered that the applicant was fitted with a TENS machine, perhaps some 20 years ago.
41. Mr Howroyd submitted that it was difficult to separate the effects of the 1974 injury and the 1977 injury, both of which occurred a significant time ago. Mr Howroyd pointed out that the Tribunal did not have the benefit of evidence from the doctors who treated the applicant at the relevant times. Mr Howroyd contended that Mr Stevenson’s conclusions of the effects from the 1974 and 1977 injuries were the product of assumption, conjecture and hypothesis. Mr Howroyd pointed out that the permanency of the impairment had not been addressed prior to 1988 and it was his submission that the Tribunal could conclude that the applicant had not suffered a permanent impairment prior to 1 December 1988. He suggested that Mr Binns would not have performed surgery in 1989 if he had concluded that the applicant’s impairment was then permanent. Mr Howroyd argued that the effects of the 1977 accident were of short duration and therefore how could the Tribunal conclude that the applicant was permanently incapacitated as a result of that injury.
42. Mr Howroyd referred the Tribunal to the definition of “permanent” under the 1988 Act which states “means likely to continue indefinitely” (s4).
Legislation
43. The applicant’s claim for compensation is made pursuant to s24 of the 1988 Act which states:
“Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee's condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters “
44. There was no dispute that the applicant had suffered an injury in accordance with the meaning of “injury” as defined in s4 of the Act. Comcare had in fact paid compensation to the applicant in respect of his condition of low lumbar back pain sustained in the accident which occurred on 3 October 1977.
45. As the accident and consequent injury occurred prior to the introduction of the 1988 legislation, the transitional provisions of the 1988 Act are relevant. Section 124 of the 1988 Act provides:
“(1) Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.
(1A) Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.
(2) …
(3) A person is not entitled to compensation under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing date, if:
(a)the person received compensation of a lump sum in respect of that impairment or death 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 or death:
(i) where the impairment or death occurred before the commencement of the 1930 Act—under the 1912 Act;
(ii) where the impairment or death 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 or death occurred; or
(iii) in any other case—under the 1971 Act as in force when the impairment or death occurred.”
46. Section 39 of the 1971 Act made provision for the payment of lump sum compensation amounts in respect of certain losses. However no provision was made in respect of spinal injuries per se. Further, the provisions of s39(14) of the 1971 provide:
“An amount of compensation referred to in this section is not payable in respect of an injury so long as the employee is, or is likely to become, totally incapacitated for work where the incapacity for work results, or if it occurs, will result in whole or in part from that injury.”
Submissions
47. It was contended by Mr Morgan that the applicant was totally incapacitated for work prior to the introduction of the1988 Act. Pursuant to the provisions s39 of the 1971 Act, he was not entitled to compensation under that Act. Mr Morgan submitted that the issue was not whether the applicant was “permanently impaired” within the meaning of the 1988 Act, but whether he was “totally incapacitated for work” within the meaning of the 1971 Act.
48. The term “incapacitated for work” is not defined in the 1971 Act. Sub-section 9 of section 4 of the 1988 Act states:
“A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.”
Discussion and Findings
49. It is common ground that the applicant’s current level of incapacity arises at least in part from the 1977 injury. There is no dispute that the applicant’s condition constitutes an injury within the meaning of s4 of the 1988 Act.
50. Whilst it may be argued as Mr Howroyd contended, that Mr Binns did not accept that the applicant’s injury was such that it was beyond further repair, therefore not permanently impaired within the meaning of the 1988 Act, the issue is whether the applicant was totally incapacitated for work within the meaning of s 39 of the 1971 Act.
51. The evidence was that the applicant retired from work on the grounds of invalidity on 24 May 1978 (T1, p3). Whilst some doctors assessed that there was some potential for the applicant to return to the workforce in a part-time capacity and with lighter duties, this did not eventuate and he was assessed by the Department of Social Security in 1981 as being completely unemployable and qualified for the invalid pension. As early as February 1979, Sir Douglas Parker recommended no further treatment and in August 1980 stated that the patient was completely incapacitated, unable to do any work and qualified for an invalid pension.
52. On 1 July 1981, Sir Douglas Parker stated that the applicant’s condition was unchanged, he was completely unemployable and qualified for an invalid pension.
53. On the basis of the medical evidence as outlined above, the Tribunal accepts that in accordance with the provisions of s39(14) of the 1971 Act, the applicant was “totally incapacitated for work” prior to the introduction of the 1988 legislation.
54. The question remains as to whether the applicant is thus barred from a claim for permanent impairment under s24 of the 1988 Act in accordance with the provisions of s124 of that Act. This section states that a person is not entitled to compensation under this Act where compensation was not payable in respect of the injury under the 1971 Act as in force when the injury was suffered (s124(2)). Further, under the provisions of sub-section (3) that a person is not entitled to compensation under s24 in respect of permanent impairment where the person was not entitled to receive compensation of a lump sum in respect of that impairment under the 1971 Act, as in force when the impairment occurred.
55. The intent of the transitional provisions is to place the applicant in a no better or worse position than he would have been under the 1971 Act.
As stated in the Full Federal Court decision of Hoyle v Telstra Corporation Ltd (1997) 145 ALR 148 at p150:
“Those provisions are consistent with a general principle which appears to be discernible in sections 124(1A) and 124(2) that an employee should not be worse off as a result of the enactment of the Compensation Act and the repeal of the Act 1971 but, generally, should be no better off. The succeeding sub-sections in section 124 seem designed to give effect to that general principle.”
56. It was further stated by the Full Court in Hoyle (supra) at p155 – 156:
“We are not persuaded that the changes in policy are sufficient to override the language of sections 124(3) and 124(4), read in the light of the general principle, discernible in section 124 as a whole, that an employee whose entitlement has a nexus with a period before the commencing day is not intended to be in a better position in respect of a permanent impairment simply because of the enactment of the Compensation Act and the repeal of the Act 1971 .. The changes are not such as would indicate that there was a legislative intention to give to an employee who was totally incapacitated at the commencement day, the right to recover a lump sum payment under section 24 of the Compensation Act which that employee would not have been entitled to recover under section 39 of the Act 1971 if the Compensation Act had not been enacted.”
57. The Full Court went on to conclude that in the absence of a finding that the applicants in that case had been totally incapacitated for work, the provisions of ss124(3) and (4) precluded them from having any entitlement to compensation under ss24 and 17 of the Compensation Act.
58. There being no other provision within the 1971 Act that would entitle this applicant to a payment of lump sum compensation with respect to his injury, under the provisions of s124 of the 1988 Act, the applicant has no entitlement to compensation for permanent impairment under the provisions of s24 of the 1988 Act. The remaining question is whether or not the applicant is entitled to compensation for any worsening if his condition post December 1988.
59. This issue was considered by the Tribunal in the decision Re Maida and Comcare (2001) 64 ALD 734. The Tribunal referred the relevant line of authorities, commencing with Blackman and Australian Telecommunications Corporation (1990) 12 AAR 11, and in particular at p14 where it was stated:
“There was some evidence before the Tribunal that the disease, and therefore the degree of impairment, had generally worsened since the condition was first diagnosed, in accordance with its natural progress. It appears that treatment alleviated the effects of the disease at one stage, but the applicant's overall condition has tended to deteriorate. 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 of [sic] 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. ...
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. ....”
60. Merkel J stated in Department of Defence v West (1998) 85 FCR 491 at p512-513:
“A loss of the entitlement conferred under ss 24 and 25 by reason of s 124(3) only occurs when the permanent impairment the subject of the claim is the permanent impairment that the employee suffered as at 1 December 1988. On my reasoning, and that of Burchett J in Brennan, 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 commencing 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. ….
In my view the nature and extent of the loss of use or malfunction is critical to determining whether an impairment has changed to such an extent that it is a further or new impairment. …
However, in reaching my conclusion, I do not disagree with the conclusion in Blackman that gradual worsening does not result in a series of separate or further impairments. Inevitably, questions of fact and degree are involved in making a qualitative assessment as to whether, in a particular case, the permanent impairment existing as at 1 December 1988 has deteriorated to an extent that it is properly to be characterised as a further or different impairment to that which existed at the commencement date. When that question is answered in the affirmative an entitlement to lump sum compensation arises under ss24 and 25 which is not precluded by s124(3).”
61. It was contended by Mr Howroyd that the applicant had suffered a gradual deterioration in his condition and that his current rating of at least 20%, as assessed by Dr Scarr and Dr Stevenson was causally connected to the 1977 incident. Mr Howroyd further contended that the applicant’s current level of impairment was due in part to the consequences of the 1989 surgery and referred to Dr Stevenson’s report of 11 November 2002 in which he stated:
“His present impairment (all cause) is 20% whole person. Most of this seems to be due to spinal fibrosis consequent on his widespread surgery in 1989.
62. Mr Howroyd also referred to Dr Scarr’s evidence that the applicant’s impairment had increased from 10% at January 1988 to 25% currently and in his opinion the main cause of the applicant’s current condition of arachnoiditis is the effect of the 1989 surgery.
63. It was suggested that the applicant experienced a gradual deterioration of symptoms from around December 1988 leading up to his operation in 1989. In Mr Dening’s report dated 30 November 1988, he stated that “Mr Kay had complained of increasing symptoms of back pain in mid December and his condition deteroriating in mid January 1989”. Dr Scarr’s medical notes however indicated that the applicant consulted Dr Scarr 3 times in November and only once in December 1988. He said there may have been home visits that were not recorded. Dr Scarr recalled that the number of home visits increased in the period leading up to surgery performed by Mr Binns, but he did not have a record of the visits.
64. The Tribunal recalls the evidence of Dr Scarr when he conceded under cross-examination that the current symptoms suffered by the applicant were not really very much different from those experienced prior the 1989 surgery. Mr Morgan specifically put to Dr Scarr a description of the applicant’s condition as given to a physiotherapist in November 1988 which Dr Scarr agreed was a fair reflection of the applicant’s current condition.
65. It was the applicant’s evidence that he experienced some improvement following the 1989 surgery which lasted for not more than a few months and that his condition then reverted to that experienced prior to the surgery. He conceded that he now experiences some “good days” that he did not have prior to the 1989 surgery.
66. It is clear from the authorities that a gradual worsening of the applicant’s condition is not sufficient to constitute a new or further impairment for the purposes of s24 of the Act. What is required is a quantitative and qualitative change in the applicant’s condition.
67. Whilst the Tribunal has no reason to doubt the evidence of the applicant, it is obviously difficult for him to relate his current level of pain and condition to that preceding the introduction of the 1988 legislation. It is unfortunate that there was no medical assessment of the applicant’s condition prior to 1988. Dr Binn’s stated in his report (16 January 1990) that the (1989) myelogram revealed grossly abnormal spinal canal and that it was difficult to assess the underlying pathology in his lower spine.
68. In order to qualify for the lump sum payment for permanent impairment, the Tribunal must be satisfied that the applicant has suffered at least a 10% in crease in the level of his impairment from 1 December 1988. Whilst there is evidence that the applicant has suffered an increase in the level of his permanent impairment since 1 December 1988, the Tribunal is not satisfied that the increase in the impairment rating is solely a consequence of the 1977 incident.
69. Both Dr Scarr and Dr Stevenson agree that the applicant suffers from spinal canal stenosis, which is a degenerative disease. In the opinion of Dr Stevenson, the applicant’s current degree of impairment of 20% is mostly related to his degenerative condition, the previous surgery he underwent in 1974 and the consequences of the 1989 surgery which he says is related to his degenerative disc disease.
70. The Tribunal is not satisfied on the balance of probabilities that firstly, the applicant has suffered such a significant deterioration after 1 December 1988, to categorise his current level of increase in impairment as a different or new impairment, nor is the Tribunal satisfied that any increase in the applicant’s level of impairment is solely attributable to the 1977 injury.
71. In Dr Stevenson’s view the more significant injury was the 1974 injury for which surgery was performed shortly afterwards. There is evidence that the applicant also sustained a fall in 1996 when attempting to sit on an unsecured bench at the Covehill Bridgewater Shopping Centre. In the words of his treating practitioner, Dr Scarr in a report dated 24 April 1998, he stated:
“The most recent significant exacerbation of his low back injury occurred on 15/10/96 when he was upended while attempting to sit on an unsecured bench at Covehill Bridgewater, s shopping centre. He noted acute onset low back pain and stiffness, radiating down the left leg. He also noted a poor response down the left leg of his DCS, and was adamant it was not working correctly. On examination, his lower back was rigid with significant para-vertebral muscle spasm, but no fixed nemo-logical sigma in either lower limb.”
72. Whilst it was Dr Scarr’s opinion that the applicant’s current condition is mainly due to the 1989 surgery, the Tribunal is not satisfied on the evidence before it that this surgery was a necessary consequence of the 1977 injury.
73. The applicant has failed to satisfy the Tribunal on the balance of probabilities that he has suffered a 10% impairment increase since 1 December 1988 that is solely referrable to the 1977 injury which can be categorised quantitatively and qualitatively as a further or different impairment and not a gradual worsening of the applicant’s previous condition.
74. For the above reasons, the decision of the Tribunal is that the applicant’s appeal be dismissed.
I certify that the 74 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing 25 and 26 June 2003
Date of Decision 26 September 2003
Counsel for the Applicant Mr R Howroyd
Solicitor for the Applicant Bennett Howroyd
Counsel for the Respondent Mr B Morgan
Solicitor for the Respondent Australian Government Solicitor
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