Laven and Comcare
[2003] AATA 821
•21 August 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 821
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2003/112
GENERAL ADMINISTRATIVE DIVISION ) Re
Sophia Laven
Applicant
And
Comcare
Respondent
DECISION
Tribunal Mr RP Handley, Deputy President Date21 August 2003
PlaceSydney
Decision The Tribunal affirms the decision under review.
...............................................
RP Handley
Deputy President
CATCHWORDS
COMCARE – Safety Rehabilitation and Compensation Act 1988 – application of Table 14.1 of the Guide - examination of the circumstances of the Applicant’s injury – whether Applicant’s injury is permanent – whether Applicant entitled to further compensation – whether decision of the Respondent final or interim - held decision of the Respondent affirmed.
Safety Rehabilitation and Compensation Act 1988 ss 24, 25, 27, 25(4)
Guide to the assessment of the degree of permanent impairment
Comcare v Mihajlovic [2000] FCA 285
Comcare v Roser [2003] FCA 243
Comcare v Van Grinsven [2002] FCAFC 87
REASONS FOR DECISION
21 August 2003 Mr RP Handley, Deputy President 1. This matter involves an application by Sophia Laven (“the Applicant”) for a review of a decision of Comcare (Australian Taxation Office) (“the Respondent”) made on 19 November 2002 which, following a review, affirmed an earlier decision of the Respondent made on 20 September 2002, that the Applicant is not eligible for any further compensation pursuant to s 24 of the Safety Rehabilitation and Compensation Act 1988 (“the Act”) and is consequently not eligible for a payment in respect of non-economic loss under s 27 of the Act.
2. At the hearing, which was conducted by telephone, the Applicant was represented by Alan Anforth, of Counsel, and the Respondent was represented by Ben Dube, of Counsel. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”), together with the documents tendered by the parties at the hearing. No evidence was presented at the hearing which focussed solely on an issue of law.
Background
3. Ms Laven was born on 28 November 1955 and is aged 47. She is married and has one adult son. She commenced work with the Australian Taxation Office (“ATO”) on 28 July 1988 (T p92). For the first six months of her employment, she worked in the mailroom and was then promoted to the role of processing applications on Microfiche. In 1990, she was promoted to the returns processing section where she sorted and checked documents and keyed information into the system. In 1993, she was promoted to the Child Support Agency section of the ATO. Her role involved the regular processing of correspondence and information (T pp82-83).
4. On 1 December 1997, the Applicant injured her right arm and shoulder whilst typing at work (T3). On 4 December 1997, the Applicant lodged a claim for compensation for carpal tunnel syndrome and repetitive strain injury (RSI) to the right arm (T4). On 14 January 1998, the Respondent accepted the claim for carpal tunnel syndrome of the right arm (T9)
5. In February 1998, the Applicant was assessed by the Commonwealth Rehabilitation Service (“CRS”) (T12). The CRS recommended adaptations be made to the Applicant’s work situation. In April 1998, the CRS made further recommendations to the Respondent concerning the Applicant “in an attempt to increase Ms Laven’s safety and independence within the home environment and to prevent further aggravation of the injury” (T15).
6. On 22 September 1998, the Respondent rejected a claim by the Applicant for a rotator cuff injury to her left shoulder on the basis that it was a pre-existing injury (T20).
7. On 13 November 1998, the Respondent accepted liability for injury to the Applicant’s left shoulder as a secondary condition of the Applicant’s carpal tunnel syndrome of the right arm (T24). This was on the basis that the Applicant was using her left arm to compensate for the restrictions to her right arm.
8. On 1 March 2000, the Applicant lodged a claim for permanent injury in respect to the carpal tunnel syndrome in her right arm and aggravation to her left shoulder impingement (T42).
9. On 16 November 2000, the Respondent notified the Applicant that it denied liability for the Applicant’s claim for permanent impairment in respect of carpal tunnel syndrome to the right arm, but accepted liability for the Applicant’s claim for permanent impairment of 30 per cent for aggravation of the left shoulder impingement (T49). The Respondent assessed that the Applicant was entitled to compensation, on the basis of an NEL rating of 44.67 per cent, in the sum of $51,254.28, being $34,946.09 for permanent impairment pursuant to s 24 of the Act, and $16,308.19 for non-economic loss pursuant to s 27 of the Act. On 28 November 2000, the Applicant’s representative accepted this determination in writing (T50).
10. On 6 September 2002, the Applicant lodged a claim for permanent impairment of the right arm and hand, tendonitis and lateral epicondylitis of the right elbow (T63).
11. On 20 September 2002, the Respondent determined that the Applicant was not entitled, pursuant to s 25(4) of the Act, to further compensation for permanent impairment as the degree of permanent impairment had not increased by at least 10 per cent (T64).
12. On 16 October 2002, the Applicant requested a reconsideration of the determination of 20 September 2002 (T66). On 19 November 2002, an Independent Review Officer of the Respondent, having considered submissions made by the Applicant’s solicitors and medical evidence obtained by the Applicant and Comcare, affirmed the decision (T71).
13. On 17 January 2003, the Applicant lodged an application for a review of this decision by the Tribunal.
Applicable Legislation
14. The Act imposes liability to pay compensation where the injury arises “out of, or in the course of, the employee’s employment”. Section 4 includes the following definitions:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
impairment means:
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.
15. Section 14 of the Act provides that Comcare is liable to pay compensation in respect of an injury suffered by an employee “if the injury results in death, incapacity for work, or impairment”.
16. Section 24 states:
(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee's condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(7)Subject to section 25, where Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section.
…
17. Section 25, which deals with the interim payment of compensation, states:
(1) Where Comcare:
(a) makes a determination that an employee is suffering from a permanent impairment as a result of an injury; and
(b) is satisfied that the degree of the impairment is equal to or more than 10% but has not made a final determination of the degree of impairment;
Comcare shall, on the written request of the employee made at any time before the final determination is made, make an interim determination of the degree of permanent impairment under section 24 and assess an amount of compensation payable to the employee.
(2) The amount assessed by Comcare under subsection (1) shall be an amount that is the same percentage of the maximum amount specified in subsection 24(9) as the percentage determined by Comcare under subsection (1) to be the degree of permanent impairment of the employee.
(3)Where, after an amount of compensation has been paid to an employee following the making of an interim determination, Comcare makes a final determination of the degree of permanent impairment of the employee, there is payable to the employee an amount equal to the difference (if any) between the amount payable under section 24 on the making of the final determination and the amount paid to the employee under this section.
(4) Where Comcare has made a final assessment of the degree of permanent impairment of an employee, no further amounts of compensation shall be payable to the employee in respect of a subsequent increase in the degree of impairment, unless the increase is 10% or more.
18. Section 27 states:
Compensation for non-economic loss
(1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
(2) The amount of compensation is an amount assessed by Comcare under the formula:
where:
A is the percentage finally determined by Comcare under section 24 to be the degree of permanent impairment of the employee; and
B is the percentage determined by Comcare under the approved Guide to be the degree of non-economic loss suffered by the employee.
19. Section 60(1) defines “determination” as including a determination, decision or requirement made under ss 24 and 25.
Issues in Dispute
20. There are two issues in dispute between the parties:
(a)whether the Respondent’s decision of the 16 November 2000 was an interim or final decision pursuant to s 25 of the Act?
(b)whether the Applicant is entitled to a payment of compensation in respect of permanent impairment of her right arm having regard to the applicability of Table 14.1 of the Guide to the assessment of the degree of permanent impairment (“the Guide”)?
Submissions
Applicant
21. Mr Anforth, for the Applicant, contended that there were two separate incidents: the first involving the injury to the Applicant’s right arm, and the second involving the injury to her left shoulder. He contended that the injury to her left shoulder was not a sequela of the injury to her right arm:
Rather the impairment to the left arm arose later in time as a consequence of the under use of the right arm, and therefore arises from a separate injury or event.
22. Mr Anforth submitted that the facts of the present case are not materially different from those in Comcare v Roser [2003] FCA 243 (Spender J). He contended that the decision in Comcare v Mihajlovic [2000] FCA 285 (Finn J), which involved only one incident causing multiple injuries to various parts of the body, is materially distinguishable. Similarly, Comcare v Van Grinsven [2002] FCAFC 87 (Beaumont, Finn and Sundberg JJ) should also be distinguished because although it involved two separate injuries, both impacted on the same impairment.
23. Mr Anforth said the Applicant contends that the determination of 16 November 2000 should be read as an interim determination (in respect of the left shoulder) of part of the larger claim, with the balance (in respect of the right arm) to be determined later when there is sufficient evidence to hand. He submitted that the words “interim” and “final”, used respectively in ss 25(1) and (4), take their every day meaning, there being no definition in the Act. In the Respondent’s letter of 16 November 2000 (T49), the delegate, while rejecting the Applicant’s claim in respect of her right arm, stated:
If at a future time the medical evidence indicates this condition has stabilised and no further improvement expected, then your client may submit a claim for Permanent Impairment for further consideration.
24. Mr Anforth said that by postponing the assessment of the right arm, the final determination of the larger claim had yet to be made. To take a contrary view would lead to significant potential injustices to injured workers and would be inconsistent with the proposition that the Act is beneficial legislation. Had the Applicant known of the Respondent’s intention to treat the decision of 16 November 2000 as a final determination, the Applicant may well have declined to accept the impairment for the left arm until such time as the assessment of the right arm was finalised.
Respondent
25. The Respondent contends that Roser (supra) is distinguishable on the facts of the present application. There were two separate injuries: one to Ms Roser’s legs in 1986 and one to her back in 1992. The Federal Court concluded that Table 14.1 should not be used in the case of separate and discrete injuries. In the present case, the Applicant’s left shoulder condition was a sequela of the initially accepted claim for right carpal tunnel syndrome. Thus, the Respondent contends that the approach adopted by the Federal Court in Mihajlovic (supra) should be followed and Table 14.1 should be applied in assessing the Applicant’s claim for permanent injury.
26. Mr Dube contended that the comments, obiter, of the Full Federal Court in Van Grinsven (supra) at paragraph 14 implicitly endorse Finn J’s decision in Mihajlovic (supra): if one incident gives rise to two separate injuries, those injuries are assessed separately and then Table 14.1 should be applied. In the present case, there was a single incident – the Applicant’s repetitive keying at work. The consequent right hand injury was followed by left shoulder problems fairly soon afterwards.
27. With regard to the meaning of “interim” and “final” determination, Mr Dube said the Respondent contends that it is clear from the structure of Division 4 of Part II of the Act, that s 24 determinations in respect of permanent impairment amount to “final” determinations and determinations under s 25(1) constitute “interim” determinations. Moreover, s 26 and s 60 recognise that a determination can be made under both ss 24 and 25.
28. Mr Dube also noted that had the determination of 16 November 2000 been an interim determination, no compensation for non-economic loss under s 27 would have been payable. In any event, had the Applicant been dissatisfied with the determination of 16 November 2000, she could have sought reconsideration of that determination pursuant to s 62 of the Act.
Consideration of the Law and Findings
(a) An Interim or Final Decision?
29. The first issue for the Tribunal to determine is whether the Respondent’s decision of 16 November 2000 was an interim or final decision pursuant to s 25 of the Act. Mr Anforth contended that the decision of 16 November 2000 should be read as an interim determination of the Applicant’s larger claim for compensation which included not only her left shoulder but also her right arm, leaving the assessment of the percentage impairment of the right arm to be determined at a later date when there is sufficient evidence to hand.
30. Mr Dube said the Respondent contends that it is clear from the structure of Division 4 of Part II of the Act that s 24 determinations are final whereas s 25(1) determinations are interim. Moreover, had the determination of 16 November 2000 been an interim determination, no compensation for non-economic loss under s 27 would have been payable.
31. The Tribunal’s view accords with that of the Respondent. An examination of Division 4 of Part II of the Act makes it clear that s 24 determinations are final, interim payments of compensation being provided for in s 25(1). Section 25(4) then states unambiguously that once a final assessment of the degree of permanent impairment of an employee has been made, no further amounts of compensation shall be payable to the employee in respect of a subsequent increase in the degree of impairment unless the increase is 10 per cent or more.
32. The Tribunal therefore finds that the Respondent’s determination of 16 November 2000 was a final assessment of the degree of permanent impairment of the Applicant.
(b) Applicability of Table 14.1
33. Having determined that the Respondent’s decision of 16 November 2000 was a final decision pursuant to s 25(4) of the Act, the second issue to be determined by the Tribunal is whether Table 14.1 is applicable in calculating the increase in the Applicant’s degree of impairment for the purpose of determining whether, pursuant to s 25(4), compensation is payable to the Applicant in respect of the permanent impairment of her right arm. In Mihajlovic (supra), Finn J said, at paragraphs 21 - 24, that where an employee has multiple impairments the person’s degree of impairment is to be arrived at using the Combined Values Table of Table 14.1:
21… Where an employee has multiple impairments that percentage is to be arrived at using the Combined Values Table of Table 14.1. As the “Principles of Assessment” contained in the Guide indicate – albeit again in an oddly located place (ie under the heading “Double Assessment”) – the purpose of Table 14.1 “is to give the total effect of all impairments, according to a formula, as a percentage value of the employee’s whole bodily system or function”.. In so doing in respect of a multiply impaired employee, the Table performs the function envisaged for the Guide in s 28(1)(c) of the SRC Act: it provides the method by which the degree of permanent impairment of such an employee is to be expressed as a percentage, being the percentage that is employed in s 24 in assessing the compensation payable to the employee.
22In cases of multiple impairments, though each impairment necessarily involves “the loss, the loss of the use, etc … of any part of the body etc” (see s 4, “impairment”), the calculation of the percentage degree of permanent impairment of that particular impairment is not an end in itself. It is simply a step to be taken (along with like steps in relation to the employee’s other impairments) under the Tables, to enable (via Table 14.1) a percentage of degree of permanent impairment to be derived for s 24 purposes. It is not of itself a percentage for s 24(6) purposes. It functions as an element in the method prescribed by the Guide (s 28(1)(c)) to express the degree of an employee’s permanent impairment as a percentage. It would, in my view, be quite anomalous in the scheme of the SRC Act if such a figure having such purpose were nonetheless to operate as a trigger to further compensation (if 10 per cent or more) for s 25(4) purposes. The Act neither requires, nor the language of the subsection warrants, such a conclusion..
23In the same way that s 24(7) requires the degree of permanent impairment of the employee (not of a particular part of the body, etc) be 10 per cent before compensation is payable, so also s 25(4) in my view requires a 10 per cent increase in the degree of permanent impairment of an employee (not of a body part, etc) before further amounts of compensation are payable.
24For my own part I do not consider the subsection, either in its setting or in its language, is at all ambiguous in this. The use in the subsection of the precis [sic]] form “the degree of impairment” following in the same sentence the expanded formula “the degree of permanent impairment of an employee” is not a trigger to the finding of ambiguity. It is no more than an obvious example of economy in drafting. The two descriptions have – and were intended to have – the same burden: cf Comcare v Levett (1995) 60 FCR 14 at 18.
34. In Roser (supra), Ms Roser had injured both knees in 1986 and her back in 1992. Spender J said:
42In my judgment, s 24(1) of the Act provides for compensation for “an injury”.. If that injury results in multiple impairments, the impairment to the whole person is to be arrived at. If there is more than one injury occasioned as a result of a single event or incident, then there are separate and discrete liabilities in respect of each injury. Thus, if a person were made blind and lost the use of the lower right arm as the result, say, of a grenade exploding, there are two separate injuries and person suffering them is entitled under the Act to compensation for each of them. The compensation for each injury is to be assessed by reference to the degree of impairment to the whole body that flows from each injury, and that degree of impairment may require consideration of the combined effect of separate impairments flowing from the same injury.
43In my opinion, the same result follows a fortiori where there are separate incidents leading to discrete injuries, as is the case here.
44If, in the present case, the degree of impairment in respect of the back injury was 10%, in my judgment Ms Roser would be entitled to compensation on the basis of a 20% whole person impairment flowing from the injury to her knees, and would be entitled to compensation on the basis of the 10% whole person impairment resulting from the injury to her back. There would not be any requirement to consider what would be the combined effect of the impairments flowing severally from her bilateral knee condition and from her thoracic spine condition. Each injury generates a separate liability in the Commonwealth, and it seems to me there is no obligation, either in justice or in law, why one should be required to have regard to the combined impairment to the person, having regard to the several impairments to the whole person flowing from each injury.
35. In Van Grinsven (supra), the Respondent injured one knee on 17 December 1985 and the other on 7 February 1986. Note 4 to Table 9.2, which is used to assess lower extremities, states:
4.Values are for one joint only. Where more than one joint is affected, values should be combined using the Combined Values Table (Table 14.1).
Table 9.2 is used to assess loss of function of joints, primarily by reference to loss of range of movement. The Full Federal Court said, obiter, that had the Respondent’s injuries resulted in each of his two ankles loosing half their range of movement, each ankle would be assessed separately and their two values would then be combined using Table 14.1.
36. In the Tribunal’s view, the decision in Van Grinsven (supra) does not assist greatly in the Applicant’s case because the use of Table 14.1 in the case of two joint injuries separately assessed under Table 9.2 is specifically directed by Note 4 to Table 9.2.
37. With regard to the decisions in Mihajlovic (supra) and Roser (supra), in the former Finn J emphasises that it is the degree of permanent impairment of the employee as a whole which is assessed for the purpose of determining the compensation payable in respect of injuries, rather than the impairment attributable to specific injuries individually. This follows the application of Table 14.1 which, as the “Principles of Assessment” make clear, is intended to give “the total effect of all impairments … as a percentage value of the employee’s whole bodily system or function”.
38. In Roser (supra), Spender J states in paragraph 42, that where more than one injury is occasioned by an incident, then there are separate and discrete liabilities in respect of each injury. The compensation for each injury is assessed by reference to the degree of impairment of the whole body flowing from each injury, which may require consideration of the combined effect of the separate impairments flowing from the same injury. If there are separate incidents leading to discrete injuries, each injury generates a separate liability and there is no obligation to have regard to the combined impairment to the person having regard to the several impairments to the whole person flowing from each injury.
39. In the Tribunal’s opinion, the decision in Mihajlovic (supra) is to be preferred to the extent that there is any inconsistency. The emphasis in the Guide is on the percentage whole person impairment and follows the reference in s 28(1) to “the degree of permanent impairment of an employee”. As Finn J states, where there are multiple impairments arising from “the loss, the loss of the use, or the damage or malfunction” of different parts of the body, bodily system or function, the first step is to calculate the percentage degree of impairment of each loss, damage or malfunction; the second step is to determine the combined percentage of whole person impairment pursuant to Table 14.1 for the purpose of determining the compensation payable to the employee pursuant to s 24.
40. Thus, in the Tribunal’s view, when assessing whether an employee is entitled to a further amount of compensation, it is the increase in the combined percentage of whole person impairment which must be calculated, pursuant to Table 14.1, in order to determine whether there has been an increase of 10 per cent or more as required by s 25(4) for further amounts of compensation to be payable.
41. The Tribunal therefore determines that the decision under review was correct and should be affirmed. The combined percentage of whole person impairment of the Applicant is, pursuant to Table 14.1, 37 per cent – the combining of the permanent impairment of 30 per cent in respect of the Applicant’s left arm and shoulder and of 10 per cent in respect of the Applicant’s right hand and arm. Pursuant to s 25(4), since the subsequent increase in the degree of permanent impairment since the decision of 16 November 2000 is only seven per cent, no further amount of compensation is payable.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President
Signed: .......................................................................................
AssociateDate of Hearing 24 July 2003
Date of Decision 21 August 2003
Counsel for the Applicant Mr A Anforth
Counsel for the Respondent Mr B Dube
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