Lee and Military Rehabilitation and Compensation Commission

[2005] AATA 1295

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1295

ADMINISTRATIVE APPEALS TRIBUNAL      )              No.  N2004/512

)  

GENERAL ADMINISTRATIVE DIVISION )

Re JOHN LEE

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Senior Member M D Allen;
Dr J D Campbell, Member

Date13 December 2005

PlaceSydney

ADMINISTRATIVE APPEALS TRIBUNAL      )          No.     N2004/512

)  

GENERAL ADMINISTRATIVE DIVISION )            

Re JOHN LEE

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal              Senior Member M D Allen;
  Dr J D Campbell, Member

Date  13 December 2005

Place                   Sydney

DecisionFor the reasons given orally at the conclusion of the hearing of this matter, the decision under review is affirmed.

(Sgd) M.D. ALLEN
  ..................................................
  Presiding Member

CATCHWORDS

WORKERS’ COMPENSATION – review of decision of Respondent that Applicant had suffered 10% loss of function of right leg below the knee pursuant to the 1971 Act  – Applicant suffers condition of cellulitis – Applicant contends impairment should have been assessed according to 1988 Act – whether there has been a change in the underlying patho physiology of the condition – decision under review affirmed.

Compensation (Commonwealth Government Employees) Act 1971
Safety Rehabilitation and Compensation Act 1988

Comcare v Maida (2002) 36 AAR 69

REASONS FOR DECISION

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3.        The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Senior Member M.D Allen; Dr J D Campbell,       Member

Signed:         (E.Pope)
          ..................................................................................……………………………….

Associate

Date of Hearing  12, 13 December 2005

Date of Decision  13 December 2005

Counsel for Applicant                  Mr D Richards

Solicitor for Applicant                   KCI Lawyers

Counsel for Respondent             Miss R Henderson

Solicitor for Respondent              Dibbs Abbott Stillman

DRAFT DECISION  
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2004/512
By MR M.D. ALLEN, Senior Member
DR J. CAMPBELL, Member
LEE and MILITARY REHABILITATION AND COMPENSATION COMMISSION
SYDNEY, TUESDAY, 13 DECEMBER 2005

MR ALLEN: By application made the 30th day of April 2004, the Applicant sought review of a decision by the Respondent which decision in effect determined that he had suffered a 10 per cent loss of function of his right leg below the knee and awarded compensation for impairment pursuant to the table of maims contained in the 1971 Compensation Commonwealth Government Employees Act.

The case for the Applicant in these proceedings has been that his condition did not become permanent until after the first day of December 1988, being the date the Safety Rehabilitation and Compensation Act 1988 came into force and that therefore his degree of permanent impairment should have been assessed pursuant to that Act.  In the alternative, there had been a change in the underlying pathological condition sufficient to say that a new impairment had occurred.

There is no dispute that as a result of an injury occasioned to the Applicant in 1984 when he was serving as a member of the Royal Australian Navy that he then got the condition of cellulitis in his right leg.  It would appear however that after a period at a naval medical establishment the cellulitis resolved and in the period from 1984 to 1998 the Applicant was not troubled at all by any cellulitis.  There are some photos as exhibits which simply show that there was a small residual scar on the Applicant's right leg but that is all. 

However, in 1998 symptoms suddenly occurred.  As he said he woke up one morning at home, felt as if he had a fever and his leg was black.  He was taken to Tamworth Base Hospital and the diagnosis of cellulitis made.  There was also a high blood sugar reading noted but this was not followed up.

After discharge from hospital, there were no problems until again in 1999 a further attack of cellulitis occurred and again he was admitted to Tamworth Base Hospital.  At that time also as a result of tests, a diagnosis of non-insulin dependent diabetes was made.  Since that time the Applicant has had continuing attacks of cellulitis.  He says it comes on between every six to eight weeks.  He knows now when an attack is coming on.  He has antibiotics and he takes antibiotics and they generally cure the condition but for some three to four days he is immobilised with the condition.  It also had led to certain restrictions on his lifestyle.  For example, he has to be very careful not to undertake any activity where he might cause an abrasion to the right leg.

There is dispute in the evidence as to the interplay of the original injury and also the diabetes.  We accept the opinions of Professor Lord and Dr Butler that as a result of the injury in 1984 there were underlying lymphatic problems with the potential for infection.  Now this condition existed since 1984.  As a result of his diabetes the Applicant is now more prone to infection and hence the cellulitis.  As put by Dr Butler, the current cellulitis is caused by a combination of diabetes and pre-existing cellulitis.  That cellulitis is not a new condition.  That is to say, the pathology of infection has remained unaltered since 1984. Perhaps it was put rather strikingly in one way by Dr Butler that the original injury loaded the gun and diabetes pulled the trigger. So that is to say, the current cellulitis was as stated a result of two factors, the existing cellulitis and the diabetes with the latter condition, according to both Professor Lord and Dr Butler, enlarging the likelihood of the infective process.

The underlying pathology of cellulitis has however not changed but just the patho-physiological environment in which the infective process is occurring.  That is to say the cellulitis is the same condition as has existed since 1984 and in line with Comcare v Maida (2002) 36 AAR 69, there has been no change in the underlying patho physiology. In any event even if we were to find that there had been a new impairment, we are satisfied that the applicable table under the guide to the assessment of the degree of permanent impairment is table 13.1 which refers to intermittent conditions. It is quite clear that the original table referred to in this matter, namely table 1.3, is inappropriate as it refers to the cardio vascular system. Likewise table 4.1 which refers to skin disorders is not applicable as the condition of cellulitis is not a skin condition as referable to the definition of cellulitis in Gould's Medical Dictionary, fourth edition.

The net result is however that as stated, it is still the 1984 condition and impairment and the decision under review is affirmed.