LILLEY and COMCARE
[2011] AATA 472
•6 July 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 472
ADMINISTRATIVE APPEALS TRIBUNAL ) No 2010/1119
)
GENERAL ADMINISTRATIVE DIVISION )
Re WAYNE LILLEY Applicant
And
COMCARE
Respondent
DECISION
Tribunal Professor RM Creyke, Senior Member Date6 July 2011
PlaceCanberra
Decision The decision under review is affirmed.
..................[sgd]............................
Professor RM Creyke, Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – permanent impairment – where injuries to leg are both ‘permanent’ and ‘impairments’ under the Safety, Rehabilitation and Compensation Act 1988 (Cth) – assessment of degree of permanent impairment – compensable threshold of 10 per cent not met – whether Tables in the Comcare Guide to the Assessment of the Degree of Permanent Impairment are valid – whether Tables proportionate to legislative authority - decision under review affirmed
Administrative Appeals Tribunal Act 1975 (Cth) ss 44 and 45
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3, 5 and 6
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 24, 27 and 28
Comcare Guide to the Assessment of the Degree of Permanent Impairment (2nd Edition)
Re Adams and the Tax Agents Board (1976) 1 ALD 251
Re Broadhurst and Comcare [2010] AATA 251
Canute v Comcare (2006) 226 CLR 535
Re Knight and Military Rehabilitation and Compensation Commission [2010] AATA 541
Re James and Military Rehabilitation and Compensation Commission [2009] AATA 842
Minister for Primary Industries v Austral Fisheries Pty Ltd (1993) 40 FCR 381
Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565
Shanahan v Scott (1957) 96 CLR 245
South Australia v Tanner (1989) 166 CLR 161
Vanstone v Clarke (2005) 88 ALD 520
Whittaker v Comcare (1998) 86 FCR 532
Williams v City of Melbourne (1933) 49 CLR 142
REASONS FOR DECISION
6 July 2011
Professor RM Creyke, Senior Member
1.Mr Wayne Lilley was a firefighter employed by the ACT Emergency Services Authority, an arm of the ACT Department of Justice and Community Safety. On 4 July 2005 he made a compensation claim for a work-related injury. The injury was diagnosed as compartment syndrome, that is, pain affecting the front and sides of both legs when running or walking.
2.Liability was accepted for the injury on 3 August 2005.
3.In the early part of 2006, Mr Lilley developed a neuroma of the superficial peroneal in the left leg, related to his compartment syndrome. He underwent surgery for the condition and the surgery led to damage to the peroneal nerve. Liability was accepted for the costs of the surgery and subsequent treatment, as the damage was secondary to the initial injury.
4.On 12 January 2009, Mr Lilley lodged a claim for permanent impairment under section 24 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) for ‘both lower legs (compartment syndrome) and severed nerve (left lower leg)’, and ‘associated pain/loss of feeling’ which he claimed impacted on his pre-existing type 1 diabetes. The claim was rejected on 20 May 2009, a decision upheld on review on 26 February 2010.
5.On 19 March 2010, Mr Lilley sought further review by the Tribunal.
6.The matter was heard on 14 June 2011.
Issues
7.At the hearing it was conceded by counsel for Comcare that Mr Lilley’s condition was permanent. That concession involved meeting the mandatory tests for deciding whether an impairment is permanent in section 24(2) of the Act. These tests include taking into account:
the duration of the impairment; the likelihood of improvement in the employee’s condition; whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and any other relevant matters.
The Tribunal finds, on the evidence, that the concession was properly made.
8.The sole remaining issues are:
·what degree of impairment (if any) has Mr Lilley suffered as a result of his accepted injuries as assessed in accordance with the Guide to the Assessment of Permanent Impairment (2nd edn, 2006) (Guide); and
·is Comcare liable to pay compensation to Mr Lilley under section 27 of the Act for any non-economic loss suffered as a result of the injury?
Background
9.Mr Lilley became a firefighter, aged 20, in 1988. He is now 44 years of age. He reported developing pain in his legs after performing intense exercise, beginning at the Fire Brigade Training College in 1988. As part of that training he was required to run approximately 7 kilometres daily and to climb a training tower, about 5 or 6 storeys high, while carrying pieces of equipment such as hoses and breathing apparatus. Initially, the pain would settle shortly after cessation of the activity.
10.Gradually, however, the level and length he experienced the pain worsened. By 2005 he was in such pain that he reported it to his then general practitioner, Dr Augustine Oon, who, on 1 July 2005, diagnosed bilateral compartment syndrome, probably caused by Mr Lilley’s work as a fireman.
11.The claim was accepted by Comcare with a date of injury of 1 July 2005. Mr Lilley underwent surgery for the condition in November 2005 which was designed to relieve the pressure on the relevant muscles of the legs. Following the surgery Mr Lilley was off work until 19 December 2005, when he returned to work on a graduated program, 8 hours a day for 3 days a week.
12.A rehabilitation provider was appointed and Mr Lilley underwent post-operative rehabilitation, including hydrotherapy and physiotherapy, returning to full-time duties by the end of December 2005.
13.Initially, following the operation in November 2005 the level of pain had reduced, but gradually it again increased and Mr Lilley underwent further surgery on 10 February 2006. There were complications from the surgery involving damage to the peroneal nerve in the left leg. As a consequence, Mr Lilley experienced numbness in the upper part of the left foot. Comcare accepted liability for the damaged nerve as a secondary injury to his accepted condition.
14.Several months later Mr Lilley again reported an increase in his pain levels and a neuroma was identified in the left leg in July 2006. A third operation was conducted in September 2006 to remove the neuroma. By February 2007, however, his painful symptoms had returned and these have continued to cause Mr Lilley problems. The upper part of his left foot is still numb, and he has significant pain in his left foot and outer left lower leg. The outer side of the left lower leg is hyper-sensitive to light touch.
15.Mr Lilley’s graduated return to work involved clerical and IT duties. He has not returned to fire fighting duties. He had retrained, obtaining a Certificate IV in information technology, and he undertook a work trial using these skills. However, he found that he was not comfortable in the clerical environment and has not pursued such work.
16.In mid-2007 Mr Lilley started to develop panic attacks and he has been diagnosed with post traumatic stress syndrome and obsessive compulsive disorder. The panic attacks occurred most often either on the way to work or soon after arriving at work. As a consequence he ceased work, and has not worked since August 2009.
17.Mr Lilley has had psychological counselling because of his depression and panic attacks and is under the care of a psychiatrist. Mr Lilley has reported a significant increase in pain symptoms following limited amounts of exertion (walking for two-five minutes will bring on the severest pain). He has undergone treatment for pain management and has medication for depression, to assist him to sleep, and to manage his pain. Mr Lilley is also a type 1 diabetic, and was fitted with an insulin pump in 2007.
18.The Tribunal notes that the history of rehabilitation for Mr Lilley for the period 2005 to 2010 indicates he has co-operated to the best of his ability and psychological state with the various rehabilitation programs which he has attended, with his work placement programs, with his psychologist, and his case manager. His successful completion of the Certificate IV in IT as well as his attempts to find work for himself, and his attendance at work placement opportunities are indications of Mr Lilley’s engagement and co-operation.
19.Various plans have been amended to take account of his conditions as they emerged and it is significant that graduated return to work programs have needed to be reactivated as his conditions have not improved. Despite these programs, none has been successful in returning Mr Lilley to full time hours in a permanent job. Dr William Knox, consultant psychiatrist, in his report dated 4 March 2010, expressed the opinion that ‘Mr Lilley is not fit for any rehabilitation programme currently’. The Tribunal finds that Mr Lilley has undertaken all reasonable rehabilitative measures.
Consideration
20. The principal issue in this matter is whether Mr Lilley’s accepted conditions of damage to the peroneal nerve and compartment syndrome for both legs have led to a permanent impairment such that he is entitled to compensation. This requires a finding that Mr Lilley has a permanent condition that falls under the definition of ‘impairment’ found in section 4 of the Act, and that the degree of impairment is above the compensable threshold of 10 per cent. The level of any such impairment must be decided in accordance with the Guide to the Assessment of Permanent Impairment (2nd edn, 2006) (Guide), which is binding on the Tribunal.[1]
21. The Tribunal accepts that the Guide does not determine the existence of permanent impairment. This must be assessed without regard to the Guide, generally with the assistance of medical advice. The Guide is to be used for the purpose of assessing the percentage of permanent impairment and hence whether compensation is payable. As the Full Court of the Federal Court noted in Whittaker v Comcare:
… it is only permissible for Comcare to turn to the Guide once it has reached the conclusion, after taking into account the matters listed in s 24(2) of the Act, that the employee has suffered an injury which has resulted in a permanent impairment. The Guide then becomes relevant, but only insofar as it contains the criteria by reference to which Comcare must assess the degree of that employee’s permanent impairment. The Guide, which has this limited role, should not be allowed to limit the general legislative purpose.[2]
[1] Act s 28(4).
[2] Whittaker v Comcare (1998) 86 FCR 532 at 545.
‘Permanent’
22.It was conceded by counsel for Comcare at the outset of the hearing that on the medical evidence Mr Lilley’s conditions were permanent.[3] The Tribunal accepted, on the evidence, that the concession was appropriate.
[3] Reports by Dr V Pascall of 17 September 2008, T158, 287 and of 12 September 2009, T238, 449; Dr W Knox, report of 4 March 2010, T263, 498; Dr L Le Leu, report of 14 November 2010, 8-9; Dr J Bodel, report of 16 April 2010, 5; Associate Professor Oakeshott, report of 16 December 2010, 7, 8; Dr R Sharma, report of 17 February 2010, T252a, 478.
‘Impairment’
23.The issue is whether the permanent conditions led to an ‘impairment’ as defined in the Act. In summing up, counsel for the applicant, Mr Anforth, noted that ‘impairment’ as defined in section 4(1) of the Act includes ‘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’. He contended that, as relevant, the definition encompasses a ‘partial loss of use or function of a part of the body’.[4]
[4] Re Knight and Military Rehabilitation and Compensation Commission [2010] AATA 541 at [40]-[41].
24.Mr Lilley's accepted condition of compartment syndrome involves damage or malfunction of a part of his body, and the partial loss of use of his lower legs, particularly his left leg. The damage to the peroneal nerve involves damage to part of his nervous system. Accordingly he is suffering two impairments.[5]
[5] Canute v Comcare (2006) 226 CLR 535 at 542.
Whether Mr Lilley’s impairments meet the minimum threshold for compensation
25.The sole remaining issue is whether either condition, or both conditions, meet the minimum threshold for payment of compensation of 10 per cent.[6] The Guide contains tables which set out the percentage of whole person impairment (WPI) for loss of, loss of the use, or the damage or malfunction, of any part of the body or bodily system. The relevant tables for the injuries which Mr Lilley has suffered are Table 9.6.2a Peripheral Nerve Injuries Affecting the Lower Extremities, and Table 9.7 Lower Extremity Function.
[6] Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) s 24(3),(4),(5),(6),(7)(b),(9).
26.The assessment of whole person impairment of the two conditions must be treated separately. As the High Court said in Canute v Comcare (2006):
However, it is important to remember that recourse to the criteria and methodologies set out in the Guide is only necessary once the key statutory criterion of the occurrence of ‘an injury’ (which resulted in at least one permanent impairment) has been fulfilled. The Guide is to be approached through the prism of each ‘injury’ The terms of s 24(5) are quite clear; Comcare is to assess the degree of permanent impairment of the employee ‘resulting from an injury’. Similarly, in s 24(7), the threshold permanent impairment of the employee of 10 per cent affects the amount of compensation payable ‘under this section’; that is, ‘in respect of the injury’ (s 24(1)).
The scheme of the Act proceeds in this way from the occurrence of ‘an injury’, in the defined sense. As previously remarked, the Act assumes that more than one ‘injury’ may occur. Therefore it is not correct to say that s 24(5) imports a ‘whole person’ approach to the determination of the degree of permanent impairment. That ignores the centrality of ‘an injury’ to the scheme upon which Comcare's liability to compensate depends. [7]
[7] Canute v Comcare (2006) 226 CLR 535 at 542.
27.For Mr Lilley that means that an assessment of impairment must be undertaken for each of his two injuries. The first injury is his compartment syndrome, and the second, the damage to his peroneal nerve. Each must be assessed separately for the purposes of meeting the threshold of 10 per cent if he is to receive compensation.
Damage to the peroneal nerve
28.Dr James Bodel, orthopaedic surgeon, in his report dated 16 February 2010, assessed that under Table 9.6.2a Mr Lilley suffered from a 1 per cent whole person impairment for sensory loss in the common peroneal nerve. Dr Leon Le Leu, occupational physician, in a report dated 14 November 2010, considered Mr Lilley suffered a 2 per cent whole person impairment under Table 9.6.2a in relation to his nerve injury.
29.Associate Professor Oakeshott found in his report dated 23 April 2009 that under Table 9.6.2a of the Guide, Mr Lilley had a sensory grading of two, which attracted a 1 per cent whole person impairment for his peroneal nerve condition, and a dysaesthesia grading of two which also attracted a 1 per cent whole person impairment. This gave a 2 per cent whole person impairment in relation to his peroneal nerve injury and symptoms. He did not change that assessment in his later report of 16 December 2010.
30.The upshot is that, as counsel for Mr Lilley properly conceded, there was no likelihood that Mr Lilley would be able to meet the minimum threshold assessment of 10 per cent for this condition. So subject to the discussion of the validity of Table 9.6.2a, the Tribunal finds that no compensation is payable for the permanent impairment arising from this condition since the degree of impairment it causes does not reach the threshold of 10 per cent. The detailed evidence relating to this condition will not be considered further.
31.The issue of the validity of Table 9.6.2a and Table 9.7 was raised by counsel in his submissions to the Tribunal and is dealt with later in these reasons.
Compartment syndrome
32.Table 9.7 lists as criteria for a 5 per cent level of impairment:
Major Criteria (at least one required):
·Walks at a normal pace in comparison with peers on level ground but has manifest difficulty negotiating uneven ground and avoiding obstacles; or
·Walking is restricted to 1000m or less at a time (may be able to walk further after resting).
Minor Criteria (at least two required where listed):
·Legs give way or lock occasionally without resulting in falls;
·Can negotiate three or more stairs or a ramp (up and down) without the use of a walking aid or hand rails.
33.For a 10 per cent level of impairment, Table 9.7 lists the following criteria:
Major Criteria:
·Walks at a normal pace in comparison with peers on level ground but is unable to negotiate uneven ground without use of a walking aid or personal assistant; or
·Walking is restricted to 500m or less at a time (may be able to walk further after resting).
Minor Criteria:
·Legs give way or lock occasionally without resulting in falls;
·Is unable to negotiate three or more stairs or a ramp (up and down) without the use of a walking aid or hand rails.
34.For a 20 per cent level of impairment, Table 9.7 lists the following criteria:
Major Criteria:
·Walks at a moderately reduced pace in comparison with peers on level ground; or
·Walking is restricted to 250m or less at a time (may be able to walk further after resting).
Minor Criteria:
·Legs give way or lock occasionally resulting in falls;
·Is unable to negotiate three or more stairs or a ramp (up and down) without the use of a walking aid or hand rails;
·Is unable to rise from sitting to standing position without use of one hand but can stand without support.
35.The Tribunal will examine first whether Mr Lilley’s accepted conditions reach the minimum threshold; and second, whether that threshold is invalid.
36.The notes to Table 9.7 require that ‘manifest difficulty’, an element of one of the major criteria at the 5 per cent level, be tested clinically. At the same time, ability to walk and pace of walking, ability to climb stairs or a ramp, and to rise from a seated position, are activities included in the criteria for several levels of impairment in the Table. Each of these activities invites clinical testing. So although the notes do not similarly indicate that they must be tested clinically – presumably because in more severe cases a person may either be incapable of managing the exercise or at least of doing so without considerable discomfort − the Tribunal considers that outside these circumstances, the activities should have been tested clinically.
37.The Tribunal notes that with the exception of Associate Professor Oakeshott, the assessments of the medical practitioners were based on Mr Lilley’s history, rather than independent clinical assessment. That has detracted from the weight to be attributed to their testimony.
Dr Sharma
38.Dr Rashmi Sharma, Mr Lilley’s general practitioner, did not make an assessment under the Guide of the level of impairments relating to Mr Lilley’s accepted conditions. Nonetheless, she noted in her report of 17 February 2010 that Mr Lilley was 'unable to walk for more than 5 minutes without pain', that his conditions have negatively affected his ‘ability to sleep and carry out activities of daily living', which has had an impact on his relationship with his family, and have caused him frustration and distress. As a diabetic, she reported, the fact that he cannot exercise is detrimental to management of his diabetes condition and may have flow-on effects, in the longer term, to other areas of Mr Lilley's health.
39.In Part C of the Compensation Claim for Permanent Impairment, Dr Sharma noted in answer to a question about the nature of the impairment caused by Mr Lilley’s injuries that he is: ‘unable to walk long distances without developing pain. Constant neuropathic pain + numbness in his left lower limb. His underlying diabetes is affected by his inability to exercise and also the sensory changes to his foot’. In response to a question about the extent of the impairments, she said ‘It is extensive enough to affect his activities of daily living – unable to play sport with children/exercise for his diabetes/unable to mow lawn or manual round the home jobs’.
Dr Bodel
40.Dr Bodel, in his report dated 16 February 2010, assessed Mr Lilley’s impairment from his compartment syndrome at 10 per cent on Table 9.7 on the basis that Mr Lilley ‘is able to walk at a normal pace on level ground but cannot negotiate uneven ground without the use of a walking aid or personal assistant’, and ‘would have difficulty walking more than 500 metres at a time without a rest’. In addition he ‘has difficulty negotiating stairs without the use of a walking aid or a hand rail’.
41.That means Dr Bodel found that Mr Lilley met the first major criterion - ‘is unable to negotiate uneven ground without use of a walking stick or personal assistant’. His description of Mr Lilley’s conditions in his report is also apt for a positive assessment of the alternative major criterion – ‘walking is restricted to 500m or less at a time (may be able to walk further after resting)’. The Tribunal finds that it would be unnecessarily pedantic to conclude that Mr Lilley did not meet this major criterion on the basis that Dr Bodel used the words ‘would have difficulty walking more than 500m without a rest’ rather than ‘walking is restricted to 500m or less at a time’ without a rest. The Tribunal finds that in accordance with this assessment Dr Bodel found Mr Lilley met both major criteria for the 10 per cent level of assessment.
42.Dr Bodel did not make a finding that Mr Lilley met both minor criteria, the minimum requirement for eligibility; he made a finding in relation to one only – in his words ‘has difficulty negotiating stairs without the use of a walking aid or a handrail’. On that ground, Dr Bodel’s findings do not support a 10 per cent assessment. Second, in relation to the minor criterion he did address, Dr Bodel used the term ‘difficulty’ rather than the word ‘unable’ concerning ability ‘to negotiate three or more stairs or a ramp (up and down) without the use of a walking aid or hand rails’. That detracted from the value of the assessment he made even in relation to that single criterion. Overall, however, the assessment did not make findings which cover the minimum criteria for an assessment of 10 per cent and as a consequence it does not support a claim that Mr Lilley met the minimum threshold for this injury.
Dr Le Leu
43.Dr Le Leu, in a report dated 14 November 2010, assessed Mr Lilley under Table 9.7 as follows:
(a)Looking at 20% WPI [whole person impairment] he satisfies both major criteria but does not satisfy any of the minor criteria and certainly not the required two minor criteria.
(b)Looking at 10% WPI he satisfies one of the two major criteria. He satisfies one of the minor criteria – ‘Legs give way or lock occasionally without resulting in falls’, but does not satisfy the other minor criteria – ‘is unable to negotiate three or more stairs or a ramp (up and down) without the use of a walking aid or hand rails’.
(c)Looking at 5% WPI he satisfies one of the major criteria – ‘Walking is restricted to 1000m or less at a time (may be able to walk further after resting)’ and satisfies both minor criteria.
44.Dr Le Leu’s report does not specify in this summary which of the major criteria for a 10 per cent assessment is met by Mr Lilley. However, since he reported that Mr Lilley satisfied the major criteria for 20 per cent whole person impairment in that his restrictions include ‘no walking greater than 250m at a time on flat ground’, he would of necessity meet the comparable measure for the 10 per cent level, which is walking is restricted to a distance of 500m or less. However, he also found that Mr Lilley met only one of the minor criteria for the 10 per cent level of impairment, namely, ‘legs give way or lock occasionally without resulting in falls’. On that basis, Dr Le Leu found that Mr Lilley could not meet the criteria for the 10 per cent level of assessment. Instead, his impairment was only able to meet the criteria for the 5 per cent level. Accordingly his report was that Mr Lilley did not reach the minimum threshold for compensation for his compartment syndrome.
Associate Professor Oakeshott
45.Associate Professor Robert Oakeshott reported on 23 April 2009 that Mr Lilley also only met a 5 per cent level of permanent impairment for compartment syndrome. He had tested Mr Lilley by asking him to walk in a corridor at his premises but was unable on that occasion to test him with stairs. In his view, Mr Lilley met two minor criteria and at least one of the major criteria. He noted that Mr Lilley said his legs occasionally gave way and he stumbled but did not fall and he was able to negotiate stairs at home without walking aids. At the hearing, Associate Professor Oakeshott said he could not recall whether Mr Lilley had said it was necessary for him to use railings when he negotiated the ten or so stairs between the levels in Mr Lilley’s home.
46.In his follow up report on 16 December 2010, Associate Professor Oakeshott, included an assessment based on a walk with Mr Lilley through the centre of Canberra. As a result he found the same percentage impairments under the two Tables. In particular, in relation to the compartment syndrome he noted that Mr Lilley:
(a)was able get into or from a chair and onto a moderately high examination couch with no difficulty;
(b)jogged lightly on the spot for about a dozen steps without complaining of discomfort;
(c)walked more than 500 metres without a stop, over at times uneven ground and on a path that was wet;
(d)negotiated three steps without hesitation and the use of any walking aid or handrail;
(e)managed six steps with only a hand on top of a brick wall to guide him without losing pace; and
(f)walked without his legs locking or giving way.
47.At the hearing, when asked to comment on Mr Lilley’s measurement of the walk as being only for a distance of 356 metres, Associate Professor Oakeshott agreed that the estimate of the length of the walk as being ‘more than 500 metres’ might well be inaccurate. In relation to the reported assessment that Mr Lilley ‘walked at a moderate pace’ for a person of his age group, he did not change his opinion in response to Mr Lilley’s saying that he walked at a comparable pace to Associate Professor Oakeshott. In Mr Lilley’s view that pace was commensurate with the age of Associate Professor Oakeshott, who is older than Mr Lilley, rather than for a 44 year old like himself.
48.Mr Lilley in his statement had also denied, as Associate Professor Oakeshott had reported, that he ‘walked down three steps … without hesitation’. According to him he ‘walked in a side-ways fashion down these stairs’ which he does regularly because it ‘causes less strain on my lower legs’. Associate Professor Oakeshott said at the hearing that he ‘strongly refuted’ that account. As he said ‘We were walking and I particularly took note of it at the time. We descended those steps in what I consider the normal fashion. We were both facing down the steps beside each other … It was without any obvious pain [or] stumbling’.
49.Mr Lilley also disputed the element of the report which said Mr Lilley ‘walked down six steps without holding onto the adjacent brick wall’. As he said ‘I did use the brick wall for support as I descended those stairs and Professor Oakshotte’s [sic] comments in this regard are disingenuous’. As to which Associate Professor Oakeshott said at the hearing ‘we walked down those six steps in the same fashion that we walked down the three steps and I made particular note of that’. However, he conceded that when walking down those steps Mr Lilley ‘placed his open hand on the … top of the brick wall and just as we walked down, threw his hand, without any weight or without any grabbing, down the top of the wall, which I think was probably a normal thing to do’.
50.As Associate Professor Oakeshott conceded at the hearing that the walk undertaken was less than 500m, it follows that no testing was done by him which would enable an assessment to be made of whether Mr Lilley’s walking was ‘restricted to 500m or less at a time’, without resting.
51.At the same time, the Tribunal found Associate Professor Oakeshott to be a credible witness. He did not change his testimony as to the pace of walking during the test-walk he undertook with Mr Lilley. He also gave evidence that the two were not passed by others during their walk. Questions raised by this comment are whether those who were walking in the same direction as Mr Lilley and Associate Professor Oakeshott were necessarily ‘peers’ and whether they were dawdling or walking purposefully. The Tribunal assumes that a peer is someone of roughly the same age and level of fitness (since this is a test of physical capability) as an applicant. Nonetheless, despite these questions, given the necessarily somewhat subjective nature of such an assessment, the Tribunal is satisfied on the evidence, given the credibility of Associate Professor Oakshott, that Mr Lilley is able to walk at a ‘normal pace in comparison with peers’.
52.The second issue which was raised was whether the walk occurred ‘on level ground’. Photographs of the terrain were made available to the Tribunal. The walk took place through the central business district of the city of Canberra. Although evidence was provided that there was some unevenness in paving, the Tribunal accepts that at most this amounted to a 1-2 cm disparity in height of paving stones and the need at one point to step up a curb and to avoid a drain. The route was for the most part over flat terrain. The Tribunal finds, in light of the following discussion of the meaning of ‘uneven ground’ that this would generally be regarded as ‘even ground’. On that basis, Mr Lilley’s progress would meet the test of ‘Walks at a normal pace in comparison with peers on level ground’.
53.There is a qualification to that first major criterion, namely, ‘but is unable to negotiate uneven ground without use of a walking aid or personal assistant’. What is ‘uneven ground’ is not spelt out. The Macquarie Dictionary defines ‘uneven’ as relevant as:
1. Not level or flat; rough; rugged. 2. Irregular; varying; not uniform.[8]
[8] Macquarie Concise Dictionary (5th edn, 2009), 1375.
54.The definition does not greatly assist since the descriptions span the spectrum between ‘not flat’, ‘rugged’, and ‘varying’. A pavement which is out of true level by as much as a few millimetres could meet the ‘not flat’ or ‘not uniform’ descriptors. On that basis it would be hard to imagine areas in which people walk which would not qualify as ‘uneven’. To so conclude would deny any meaning to the contrasting scenarios posed in that criterion between ability to walk on even ground with inability to walk on uneven ground without assistance. Accordingly, ‘uneven’ must tend towards the ‘rough’ or ‘rugged’ end of the spectrum covered by the definition and must be obvious and measurable to provide the contrasting scenarios intended for this criterion.
55.The Tribunal finds, accordingly, that the ground traversed on this occasion, on the available evidence, would not qualify as ‘uneven’. For that reason Mr Lilley would not be able to meet the second part of the descriptor since he was not tested over uneven ground. That supports the opinion of Associate Professor Oakeshott that Mr Lilley did not meet either of the major criteria for the ten per cent level of assessment nor, it can be assumed from his evidence, did he meet the two minor criteria. His finding that Mr Lilley only met the criteria for the minor criteria for the 5 per cent level is consistent with the conclusions reached in his report.
Other evidence
56.Mr Lilley gave evidence that he used the rails to assist him walking up and down the stairs in his home. There is no corroborating evidence, for example, from his wife, that this is so. In addition, the medical evidence in support of his capacity in this regard was, with the exception of the clinical findings of Associate Professor Oakeshott, based solely on Mr Lilley’s reported history.
57.Although at the hearing, Mr Lilley also said he relied on the wall to enable him to walk down the six stairs during his test-walk with Associate Professor Oakeshott, given the credible and clear evidence provided by this witness during the hearing, from which he did not resile during cross-examination, the Tribunal prefers the view of the witness over that of Mr Lilley. The Tribunal finds that Mr Lilley is capable of walking up and down three or more stairs without the use of a walking aid or personal assistant. The Tribunal has taken a ‘walking aid’ to include a walking stick or cane, or a walking frame.[9]
[9] Macquarie Concise Dictionary (5th edn, 2009), 1419.
58.Accordingly, there is no medical evidence which supports Mr Lilley meeting the minimum number of major and minor criteria in Table 9.7 for at least the 10 per cent threshold. Nor was there other corroborated evidence to that effect. The Tribunal finds that Mr Lilley cannot meet the minimum threshold of 10 per cent for payment of compensation for his compartment syndrome.
Are the Tables invalid?
59.These findings cannot be made in a final form until the Tribunal has dealt with the invalidity arguments presented by Mr Anforth, counsel for Mr Lilley. His arguments follow. Under section 28(3A) of the Act, the Guide is a legislative instrument. The argument by counsel in effect urges the Tribunal to find certain Tables in that legislative instrument to be unauthorised and therefore not to apply. The arguments, if successful, also have implications for other Tables in the Guide.
60.The first element of the argument was that the threshold figure of 10 per cent for payment of compensation for permanent impairment is ‘at the bottom end of a scale from 0 to 100’. This implies, it was argued, that choice of that figure in the Act signalled parliament’s intention that compensation was payable other than for ‘minor levels of impairment’. It followed that an impairment did not need to be of a ‘major’ nature for someone to qualify. Hence, if a Table in the Guide set criteria which were too stringent it was acting outside ‘Comcare’s remit’ and was therefore invalid.
61.In counsel’s view since Table 9.7 excluded someone like Mr Lilley who, it could be argued, had a permanent impairment at the more severe end of the scale for a part of his body, then the criteria for reaching the minimum threshold under that Table were disproportionately high and were not authorised by the Act. A similar argument was raised in relation to the assessment of levels of impairment in Table 9.6.2a resulting from Mr Lilley’s peroneal nerve condition. He urged the Tribunal to so find.
62.The argument requires first that the Tribunal has authority to find that the Tables at issue in this case are invalid. There are conflicting views on whether the Tribunal, under separation of powers limitations, has authority to do so.[10]
[10] Re Broadhurst and Comcare [2010] AATA 251 at note 13.
63.The separation of powers constraint does not prevent the Tribunal from commenting on whether an exercise of authority by it is constitutional, for the purposes of deciding whether it has jurisdiction.[11] By parity of reasoning if the Tribunal is required to decide whether a requirement in legislation affecting its jurisdiction is invalid, the Tribunal is able, and needs, to reach an opinion for itself on that issue.[12]
[11] Re Adams and The Tax Agents Board (1976) 1 ALD 251.
[12] See Re James and Military Rehabilitation and Compensation Commission [2009] AATA 842 at [3].
64.What the Tribunal is incapable of doing is giving a definitive legal answer to that question.[13] That step may only be taken by a court with authority under Chapter III of the Constitution. Reflective of that requirement is the ability of the Tribunal to refer a question of law to the Federal Court of Australia.[14] Alternatively, however, it may express an opinion on the lawfulness of a matter and if that opinion is challenged, the Federal Court will have jurisdiction to hear the matter on appeal or review.[15] In this instance, the Tribunal has taken the latter course.
[13] Re Adams and the Tax Agents Board (1976) 1 ALD 251 at 253.
[14] Administrative Appeals Tribunal Act 1975 (Cth) s 45.
[15] Administrative Appeals Tribunal Act 1975 (Cth) s 44; Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3, 5, 6.
65.As an element in his argument Mr Anforth submitted that the criteria in Table 9.7 and Table 9.6.2a evidence a lack of proportionality which also leads to their invalidity. In support of this argument he said that since, for example, Dr Le Leu was prepared to express the opinion that Mr Lilley’s impairments were ‘severe’ but still did not fall within the criteria listed for even the threshold level of impairment, this demonstrated a lack of proportionality of the Tables. This was argued to be both inconsistent with, as well as disproportionate to, the intention of parliament in choosing a minimum threshold at the lower end of the percentage scale.
66.The Tribunal notes that the whole person impairment which is the measure against which percentages are based ‘provides for compensation for the permanent impairment of any body part, system or function to the extent to which it permanently impairs the employee as a whole person’ (emphasis added).[16] Accordingly the Tables must reflect the extent or degree to which an employee suffers an impairment to any body part, system or function. That involves a comparative exercise and necessarily requires assessment of different levels of impairment.
[16] Guide, v.
67.The Tables in the Guide, looked at overall, do demonstrate proportionate assessments. While it is not an easy task to compare, for quantification purposes and in terms of whole person impairment, minor impairment with much more serious injuries, the tables do indicate that the task has been essayed on a relative basis and reasonably. Looking broadly at the Guide, the tables do show in general that the greater the disability the higher the percentage impairment.
68.For example, in Table 12.6 Neurological Impairment of the Respiratory System, a person is 90 per cent impaired when they have ‘No capacity for spontaneous respiration’, but 0 per cent impaired if their respiratory function is greater than a value of 85, when the values progress down a sliding scale to a level of equal to or less than 35 (Table 2.1 – Conversion of Respiratory Function Values to Impairment). Equally under Table 10.1 The Upper Urinary Tract, a person is 95 per cent impaired if they are in a ‘metabolic coma from renal failure’. These impairments at the higher percentage end of the scale mean that the most severe forms of impairment attract the highest levels of impairment.
69.Alternatively, the amputation of the first toe is assessed as only 8 per cent impairment while the amputation of one leg (hemipelvectomy), under Table 9.5 – Lower Extremity Amputations − is assessed at 50 per cent. These examples illustrate the relative ‘extent’ of assessment of permanent impairments under the Guide.
70.In any event, reliance on proportionality arguments to invalidate subordinate legislation is not the approach which has long been adopted by the courts in Australia.[17] That approach was set out by the High Court in Shanahan v Scott, [18] where, referring to the validity of an exercise of power under a subordinate law, the Court preferred to test that validity by assessing whether the subordinate law was authorised by the head Act. As the Court stated:
[17] Williams v City of Melbourne (1933) 49 CLR 142 at 156; South Australia v Tanner (1989) 166 CLR 161 at 165; Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 at 401; Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565.
[18] Shanahan v Scott (1957) 96 CLR 245.
The result is to show that such a power does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends. [19]
[19] Id at 250 per Dixon CJ, Williams, Webb & Fullagar JJ
71.In other words, the approach adopted is one of statutory construction, unclouded by the interpolation of concepts such as proportionality.
72.At a more general level, however, the notion of ‘proportionality’ has a chequered history in Australian public law. It has come to be accepted in constitutional law, but its use as a measure of lawfulness in administrative law, outside the area of human rights, is questionable.[20] The need for Australian courts to rely on such a doctrine has been obviated by the specificity of the statutory grounds of review in the Administrative Decisions (Judicial Review) Act 1977 (Cth), and the courts’ reliance on statutory construction, as long established alternatives. The preference, especially in the area of subordinate legislation, as indicated by the extract from Shanahan v Scott, has been to analyse issues of legality according to whether a subordinate rule is within the scope of the statutory limits set by the parliament.[21]
[20] Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 at 576-7 per Gummow J, (Hill J agreeing); cf Cooper J 585; Vanstone v Clarke (2005) 88 ALD 520 at 556 per Weinberg J.
[21] R Creyke and J McMillan, Control of Government Action (2nd edn, 2009) at [14.3.36].
73.Adopting that approach, section 24(7)(b) of the Act specifically authorises Comcare to devise a guide and sets the minimum threshold for compensation at 10 per cent of whole person impairment. As the immediately preceding discussion indicates, overall the Tables do reflect relativities in relation to the extent of impairment.
74.In individual cases, inevitably there will be those which do not fall neatly within the stated criteria, despite the individual’s having a level of impairment which is troubling. That is not sufficient to justify questioning the validity of the approach adopted in the Guide. In other words, the Tribunal is not persuaded that lack of proportionality is an argument which should be raised to question the lawfulness of legislative instruments such as the Guide.
75.In any event, the Tribunal rejects the suggestion that the criteria in Tables 9.7 and Table 9.6.2a are so unreasonable or disproportionate as to lead to their invalidity, either in general, or following application to the circumstances arising from the level of impairment due to Mr Lilley’s injuries. Nor are they so out of step with the intention exhibited by the Act as to warrant their validity being questioned by the Tribunal.
76.Finally, Mr Anforth submitted that unnecessary stringency in Table 9.7 was evidenced by use of the word ‘unable’ in relation to major and minor criteria for the 10 per cent level of assessment. In his view ‘unable’ meant ‘could not perform’ the activity at all. That being an absolute bar exemplified the harshness of the criteria and the difficulty of meeting the tests. The Tribunal notes, however, that ‘unable’ in those major and minor criteria is not used in absolute terms since the test is ‘unable … without the use of a walking aid or personal assistant’. In other words the term is qualified by the adverbial phrase which follows it. Accordingly, the Tribunal rejects that argument and the implication which was drawn from it.
77.In conclusion the Tribunal finds that Mr Lilley does not meet the minimum 10 per cent threshold. This also means that Mr Lilley is not eligible for compensation for non-economic loss under section 27 of the Act. The decision under review is affirmed.
78.The usual orders as to costs under section 67(8) of the Act are made.
I certify that the 78 preceding paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member.
Signed: ................................[sgd]...............................................
C. Baillie, AssociateDate of Hearing 14 June 2011
Date of Decision 6 July 2011
Counsel for the Applicant Allan Anforth
Solicitor for the Applicant Daniel Steiner, Capital Lawyers
Counsel for the Respondent Jane Godtschalk
Solicitor for the Respondent Amanda Danti, Dibbs Barker
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