Keller and Comcare

[2010] AATA 751

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 751

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/5451

GENERAL ADMINISTRATIVE DIVISION		)
Re		John Keller

Applicant

And Comcare

Respondent

DECISION

Tribunal Senior Member A K Britton

Date30 September 2010

PlaceSydney

Decision The decision under review dated 22 April 2009 is affirmed.

..................[SGD].......................

Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – permanent impairment – transitional provisions – where permanent impairment arose prior to the commencement of the SRC Act – requirement that permanent impairment be compensable under the 1971 Act – exclusion of lump sum payments under 1971 Act where worker totally incapacitated for work by injury – requirement that class of injury be specified in Table of Maims for compensation to be payable

Safety, Rehabilitation and Compensation Act 1988 (Cth) — ss 24, 27, 124

Compensation (Commonwealth Government Employees) Act 1971 — s 39

Hoyle v Telstra Corporation Ltd (1997) 145 ALR 148

REASONS FOR DECISION

30 September 2010 Senior Member A K Britton           

1.      In 1983 Mr John Keller suffered a serious head injury when the jack he was using to change a tyre on a work vehicle collapsed. At the time, he was employed by the Commonwealth as an export fish inspector. Liability was accepted for that injury and from March 1986, Mr Keller received weekly compensation on the ground that he was totally incapacitated for employment. He was medically retired from the public service in 1988.

2. In February 2009, Mr Keller lodged a claim with Comcare for compensation for permanent impairment and non-economic loss in respect of the injury sustained on 8 July 1983 (“the subject injury”). Comcare refused that claim, and Mr Keller now seeks review of that decision. The parties requested that the review be determined without a hearing. Being satisfied that the issues for determination can be adequately dealt with in their absence, I proceeded to determine Mr Keller’s application “on the papers” (see s 34J of the Administrative Appeals Tribunal Act 1975 (Cth)). Both parties declined my invitation to provide written submissions.

3.      The subject injury occurred before the repeal of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (“the 1971 Act”) and the subsequent commencement of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) on 1 December 1988. Comcare will nonetheless be liable under the SRC Act to pay compensation in respect of any permanent impairment or non-economic loss Mr Keller might suffer as a result of the subject injury, unless one of the exclusionary provisions contained in Part X of that Act applies: ss 24, 27 and 124(I) of the SRC Act. As a preliminary matter, it is therefore necessary to determine whether any of these provisions apply.

Do any of the exclusionary provisions apply?

4. Section 124(3) of the SRC Act provides that a person is not entitled to compensation under s 24 in respect of a permanent impairment, being an impairment that occurred before 1 December 1988, if:

(a) the person received compensation of a lump sum in respect of that impairment …under the …1971 Act; or

(b) the person was not entitled to receive compensation of a lump sum in respect of that impairment …

(iii) … under the 1971 Act as in force when the impairment … occurred.

5. Section 124(3)(a) does not apply as Mr Keller did not receive lump sum compensation under the 1971 Act. Whether s 124(3)(b) applies turns on whether Mr Keller was entitled to receive lump sum compensation under the 1971 Act. To answer that question it is necessary to decide:

(i)when Mr Keller’s impairment occurred; and

(ii)whether he was entitled to lump sum compensation under the 1971 Act as at that date.

When did permanent impairment occur?

6. “Impairment” is defined by s 4 of the SRC Act to mean: “the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function”. “Permanent” is defined to mean: “likely to continue indefinitely”.

7.      In making the decision the subject of Mr Keller’s application to the AAT (“the reviewable decision”), Comcare’s delegate concluded that Mr Keller’s head injury — which she took to include the secondary condition of psychoneurosis for which liability had been accepted — resulted in permanent impairment “probably well before” the assessment conducted by the medical panel in June 1988 (Drs MacDonald, Greenberg and Prochaza). The Panel certified Mr Keller unfit for any duties and recommended his retirement on medical grounds.

8.      No report by the Panel setting out the basis of its findings has been provided to this Tribunal. It would appear that the Panel adopted the opinion of Mr Keller’s treating doctor, Dr Gabriel Kolos, that Mr Keller suffered from a “chronic organic brain syndrome” (see report prepared by Dr Kolos, dated15 August 1985).

9.      I am satisfied that that the injury had probably resulted in permanent impairment in or about 1985.  

Was Mr Keller entitled to lump sum compensation under the 1971 Act?

10. Section 39(3) of the 1971 Act broadly corresponds with s 24 of the SRC Act. It provides that where an injury to an employee resulted in “a loss”, compensation was payable in respect of that injury calculated in accordance with ss 39(3) and 39(4). However, s 39(14) provided that compensation under s 39 was 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

11. In a determination made on 20 March 1986, a delegate of the Commissioner for Employees’ Compensation decided that Mr Keller was totally incapacitated for work and made an award for weekly compensation under s 45 of the 1971 Act.

12.     The Full Court in Hoyle v Telstra Corporation Ltd (1997) 145 ALR 148 examined the provisions of the 1971 Act relating to compensation for permanent impairment, incapacity for employment and their interrelationship. The Full Court commented at 153 that the scheme of the 1971 Act meant that:

[A]n employee could not retain the benefit of a lump sum payment and at the same time have the benefit of weekly compensation payments in respect of a period of total incapacity. Consistently with that policy, and in order to prevent totally incapacitated employees taking a lump sum payment, s 39(14) of the 1971 Act made it clear that the lump sum provided for in s 39(3) was not to be payable so long as an employee was, or is likely to become, totally incapacitated for work, where the incapacity resulted, or would result, in whole or in part from that injury.

13.     It follows that as at the time the impairment occurred — that is before the repeal of the 1971 Act — s 39(14) operated to deny Mr Keller any entitlement to receive lump sum compensation.

14.     In any event, Mr Keller would not have been entitled to lump sum compensation because at the time the impairment arose, compensation was not payable in respect of impairment/loss of use of the head (including the brain), neck or spine. Under s 39(3), the “nature of loss” that was compensable was restricted to those body parts or systems listed in s 39(4). None of the body parts the subject of Mr Keller’s claim are listed in s 39(4).

15. It follows that Mr Cooper was not entitled to receive lump sum compensation under s 39 of the 1971 Act because prior to the repeal of that Act he was totally incapacitated for work, and lump sum compensation was not payable for the claimed body parts. Accordingly by the operation of s 124 of the SRC Act he has no entitlement to compensation for permanent impairment or non-economic loss under that Act. I must therefore affirm the decision under review.

Further injuries

16.     In his application for review to the AAT, Mr Keller took issue with what he asserted was Comcare’s failure to take into account further alleged injures. As I understand it, he contends that he sustained an injury or an aggravation of the subject injury as a result of his “unsupervised and unaided forced return to work”. It is unclear from what is before me whether Mr Keller has previously made a claim in respect of that alleged injury. His claim for permanent impairment, the subject of his application for review by the AAT, was made in respect of the subject injury — that is, the injury that occurred on 8 July 1983. I am therefore limited to consideration of that specified injury, and am unable to determine his claim in respect of any further alleged injury. I recommend that Mr Keller consider obtaining legal advice if he wishes to pursue this issue. .

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton.

Signed: ..................................[SGD]....................................
  Associate to Senior Member Britton

Date of Hearing:  Matter heard on the papers
Date of Decision:  30 September 2010
The Applicant was self-represented.
Solicitor for the Respondent:     Sparke Helmore