Liddell and Comcare (Compensation)

[2017] AATA 878

Liddell and Comcare (Compensation) [2017] AATA 878 (16 June 2017)

Division:GENERAL DIVISION

File Number(s):      2016/2098

Re:Madonna Liddell

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President Dr P McDermott RFD

Date:16 June 2017

Place:Brisbane

I affirm the decision under review.

........................................................................

Deputy President Dr P McDermott RFD

CATCHWORDS

COMPENSATION – accepted injury and permanent impairment assessment – subsequent compensation claim for increase in permanent impairment – increase in permanent impairment not sufficient – decision affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) sections 19, 24, 25(4), 27, 28

SECONDARY MATERIALS

Guide to the Assessment of the Degree of Impairment (Edition 2.1)

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

12 June 2017

BACKGROUND

1. On 15 December 2015, the applicant lodged a claim with the respondent for permanent impairment as a result of a previously accepted condition of “right sacrolliac joint strain and displacement of intervertebral disc – lumbar” and for “numb right leg, foot and toes, L5/S1”.[1]

   [1] Exhibit A, T-documents, T37 at p. 127-140

2. On 15 February 2016, a delegate of the respondent made a determination that the applicant was not entitled to a further award of compensation on the basis that her impairment had not increased by 10% or more, as required according to section 25 of the Safety, Rehabilitation and Compensation Act 1988 (the “Act”).[2]

   [2] Exhibit A, T-documents, T40 at p. 160-161

3. On 10 March 2016 the applicant sought a reconsideration of the delegate’s determination.[3]

   [3] Exhibit A, T-documents, T41 at p. 162-164

4. On 24 March 2016 the respondent made a decision to affirm the determination dated 15 February 2016.

5. On 20 April 2016 the applicant lodged an application for review with this Tribunal.

   HISTORY

6. The applicant commenced employment as a service officer with the Department in 1995.

7. On 23 June 1996, the applicant suffered an injury to her back, specifically a right sacroiliac joint strain and displacement of intervertebral disc – lumbar (the “accepted condition”), when she was carrying a barbecue table up a set of stairs at her workplace.[4]

   [4] Exhibit A, T-documents, T8 at p. 43-46

8. The respondent accepted liability for this injury under section 14 of the Act on 13 August 1996.[5]

   [5] Exhibit A, T-documents, T8 at p. 43-46

9. On 31 January 1997, the applicant had increased back pain radiating down her right lower limb after she slipped, but did not fall, on some stairs at her workplace.[6]

   [6] Exhibit A, T-documents, T2 at p. 11

10. On 15 November 2004 the applicant made a claim for compensation for permanent impairment in respect of the back injury she suffered in 1996.

11. On 4 December 2004 the respondent determined that the applicant had a whole person impairment of 10% under Table 9.6 of the Guide to the Assessment of the Degree of Impairment (1^st ed).[7] The applicant was awarded compensation by the respondent under section 24 of the Act and under section 27 for non-economic loss for pain, social relationships and recreational and leisure.

    [7] Exhibit A, T-documents, T28 at p. 92-99

12. On 4 December 2011 the applicant submitted a further claim for impairment to the respondent and the respondent issued a determination on 5 June 2012 which made no further award of compensation on the basis that there was no increased impairment.

13. The current review application before this Tribunal concerns the third application made by the applicant, and subsequent determination made by the respondent, with respect to the injury suffered by the applicant in 1996.

    LEGAL FRAMEWORK

14. Section 24 of the Act provides that:

    24  Compensation for injuries resulting in permanent impairment

    (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.

15. Section 25(4) of the Act provides in relation to subsequent increases to degrees of impairment:

    25Interim payment of compensation

    …

    (4)Where Comcare has made a final assessment of the degree of permanent impairment of an employee (other than a hearing loss), 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.

16. Section 27 of the Act provides:

    27Compensation 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.

17. Section 28 of the Act provides:

    28  Approved Guide

    (1)Comcare may, from time to time, prepare a written document, to be called the “Guide to the Assessment of the Degree of Permanent Impairment”, setting out:

    (a)  criteria by reference to which the degree of the 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; and

    (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.

    …

    (4)Where Comcare, a licensee or the Administrative Appeals Tribunal is required to assess or re‑assess, or review the assessment or re‑assessment of, the degree of permanent impairment of an employee resulting from an injury, or the degree of non‑economic loss suffered by an employee, the provisions of the approved Guide are binding on Comcare, the licensee or the Administrative Appeals Tribunal, as the case may be, in the carrying out of that assessment, re‑assessment or review, and the assessment, re‑assessment or review shall be made under the relevant provisions of the approved Guide.

18. The applicant made her application for an assessment of the impairment after 1 December 2011. Accordingly, edition 2.1 of the Guide to the Assessment of the Degree of Permanent Impairment (the “Guide”) is the relevant edition to be used to determine the degree of impairment suffered by the applicant.[8] The Guide is binding upon this Tribunal by virtue of the operation of section 28(4) of the Act.

    [8] See Guide to the Assessment of the Degree of Permanent Impairment Ed 2.1, “3. Application of Guide”

    MEDICAL EVIDENCE

19. The applicant provided various medical reports including a Queensland X-Ray report of Dr Albert Chong dated 30 January 2017 and subsequent referrals by the applicant’s general practitioner (“GP”) Dr Christopher Dalby to Queensland X-Ray for a “CT guided HCLA” on 31 January 2017 and to Professor Gregory Day, Orthopaedic Surgeon for an expert opinion on 31 January 2017.[9] There is also a report completed by Amy Lee, Physiotherapist, undated, filed with the Tribunal on 15 December 2016.[10]

    [9] Exhibit D

    [10] Exhibit C

20. Dr Chong reports that the applicant suffers from the following:

    “In the L5/S1 disc, there is mild loss of height, some vacuum phenomenon and a mild to moderate broad based right posterolateral protrusion, slightly compressing and distorting the thecal sac and slightly displacing the proximal portion of the right S1 nerve root.”

21. Ms Lee reports that the applicant complains of “constant numbness in the foot” and reports that while the applicant has had a number of treatments, that “[n]evertheless the numbness in the foot persists the same… Sitting and walking tolerance is < 20 mins. Lifting capacity is < 5kg”.

22. The respondent relied on the report of Associate Professor Day, Consultant Orthopaedic Surgeon, dated 9 February 2016.[11]

    [11] Exhibit A, T-documents, T39 at p. 150-159

23. Associate Professor Day assessed the applicant on 8 February 2016. He undertook a clinical examination to determine the degree of permanent impairment suffered by the applicant as a result of her accepted condition and the effect of the permanent impairment on the applicant’s activities of daily living according to edition 2.1 the Guide.

24. Associate Professor Day remarks[12]:

    “Using Table 9.6.1, Ms Liddell has a 1% whole person permanent impairment as a result of loss of sensation in the distribution of the right S1 nerve root. Using Table 9.17, Ms Liddell has an 8% whole person permanent impairment as a result of the right L5/S1 disc protrusion and subsequent radiculopathy”.

    [12] Ibid at p. 157

25. Associate Professor Day concludes that using the combined values table, the applicant has a 9% whole person permanent impairment from her compensable condition.

    CONSIDERATION

26. The applicant relies upon the report of Dr Chong who examined a CT scan of the applicant’s back and the report of Ms Lee, the applicant’s treating physiotherapist, which outlines the applicant’s self-reported symptoms. The other documents the applicant submitted comprise a referral by her GP for treatment and a referral by her GP for an expert opinion.

27. The respondent relies on the report of Associate Professor Day, Consultant Orthopaedic Surgeon as a comprehensive analysis of the applicant’s symptoms and permanent impairment according to the relevant Tables under the Guide.

28. There is a substantial lack of evidence supporting the applicant’s arguments that her permanent impairment has increased, and if it has, by what percentage. The reports relied upon by the applicant do not assess the degree of the applicant’s permanent impairment, under the Tables in the Guide.

29. I find the assessment by Associate Professor Day to be the most accurate assessment of the applicant’s current level of permanent impairment. The report of Associate Professor Day is a comprehensive document that fairly considers the complaints of the applicant. The respondent quite properly asked the applicant whether she required Associate Professor Day to be available for cross-examination. The applicant did not require Associate Professor Day to attend the Tribunal for cross-examination and his report was not challenged by the applicant. I rely upon the report of Associate Professor Day.

30. The applicant was awarded compensation for a 10% whole person impairment on 4 December 2004. Having regard to section 25(4) of the Act, I must assess whether the applicant’s permanent impairment has increased more than 10% in order to make an award of further compensation to the applicant.

31. Using the previous whole person permanent assessment percentage in conjunction with Associate Professor Day’s report, it is apparent that the applicant’s whole person permanent impairment has in fact decreased by 1%.

32. I do not have authority under the Act to make a further award of compensation to the applicant as there has not been an increase of more than 10% in the applicant’s permanent impairment.

    CONCLUSION

33. I affirm the decision of the respondent of 24 March 2016.

I certify that the preceding 33 (thirty -three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

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Associate

Dated: 16 June 2017

Date(s) of hearing:	1 February 2017
Applicant:	In person
Counsel for the Respondent:	Ben Dube
Solicitors for the Respondent:	Sparke Helmore