Linda Newport and Australian Postal Corporation
[2015] AATA 261
•28 April 2015
[2015] AATA 261
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/1976
Re
Linda Newport
APPLICANT
And
Australian Postal Corporation
RESPONDENT
DECISION
Tribunal Deputy President K Bean
Deputy President Gary HumphriesDate 28 April 2015 Place Adelaide The decision under review is affirmed.
.......... [Sgd] .......................................
Deputy President K Bean
CATCHWORDS
COMPENSATION – Permanent impairment resulting from two separate shoulder injuries – Degree of whole person impairment – Whether combination of impairment values possible – Decision under review affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 45
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 14, 24
Legislative Instruments Act 2003, s 13
CASES
Canute v Comcare (2006) 226 CLR 535
Fellowes v Military Rehabilitation and Compensation Commission (2009) 240 CLR 28
Broadhurst v Comcare (2010) 189 FCR 561
Comcare v Broadhurst (2011) 192 FCR 497
SECONDARY MATERIALS
Comcare, Guide to the Assessment of the Degree of Permanent Impairment, Edition 2.1
REASONS FOR DECISION
Deputy President K Bean
Deputy President Gary Humphries28 April 2015
The matter before the Tribunal in this instance concerns the applicant’s eligibility for compensation arising from workplace injuries, and in particular whether and in what circumstances, under the terms of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) and the Comcare Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1 (the Guide) made under the SRC Act, the permanent impairments arising from two separate injuries can be combined to reach the statutory threshold for compensation.
For the purposes of the present proceedings, certain relevant facts were agreed by the parties. Those facts are as follows.
The applicant, Ms Newport, was an employee of the respondent, Australian Postal Corporation, for some 19 years. On 2 December 2008, she was involved in a work incident that led to a crush injury to her right hand. Later that month she lodged a claim for that injury, and on 5 January 2009 the respondent accepted liability for the injury to her hand under s 14 of the SRC Act.
Shortly after the December workplace incident the applicant began to experience symptoms in her right shoulder and, some six months later, began to experience symptoms in her left shoulder. On 20 March 2009, the respondent by determination accepted liability for “crush injury to right hand and right subacromial bursitis”[1] and amended the accepted condition to “crush injury to right hand and bilateral subacromial bursitis” on 29 July 2009.[2] The applicant later lodged a permanent impairment claim.
[1] Exhibit 1, T16/25.
[2] Exhibit 1, T31/40.
Dr John Meegan examined the applicant for the purposes of this permanent impairment claim according to the terms of the Guide, and concluded in a report dated 11 July 2013 that, as a result of the injuries, the applicant had suffered a left shoulder Whole Person Impairment (WPI) of 6% and a right shoulder WPI of 5%, assessed by reference to Table 9.11 of the Guide. In a further report dated 2 January 2014, Dr Meegan indicated that a combined assessment of 11% for the bilateral shoulder impairment was applicable to the applicant. On 24 February 2014, the respondent issued a determination refusing compensation for permanent impairment to the applicant, on the basis that the injuries to each shoulder were separate and distinct injuries, and as individually neither reached the 10% threshold for an award of compensation set out in s 24 of the SRC Act, no compensation was payable.
On 7 April 2014, the respondent issued a reviewable decision affirming the decision of 24 February 2014 to refuse compensation, for essentially similar reasons. The applicant now seeks review of that decision before the Tribunal.
It was accepted by the parties, and the Tribunal finds, that the applicant suffered two separate injuries, one to her right shoulder and a later injury to her left shoulder, in addition to the crush injury to her right hand.
The parties agreed on the facts recited above. However, the parties diverged on whether, for the purpose of calculating any entitlement to compensation for the applicant pursuant to s 24 of the SRC Act, the individual impairment given rise to by each shoulder injury as calculated (without dispute by either party) by Dr Meegan could be combined so that the applicant's WPI exceeded the 10% threshold set out in subs 24(7). The parties’ divergence crystallises around whether the provisions of the Guide permit such a combination of the individual impairment values for each shoulder and whether, in the event that the Guide does permit such combination, the provisions of the Guide are consistent with s 24 of the SRC Act, and the scheme of the Act more broadly.
STATUTORY FRAMEWORK
The relevant provisions of the SRC Act
Section 24 sets out the provisions for the payment of compensation for a permanent impairment resulting from an injury suffered by an employee:
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.
(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, if:
(a) the employee has a permanent impairment other than a hearing loss; and
(b)Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
Two terms in this section are critical to an understanding of the legislative intent behind the provisions: “injury” and “impairment”. “Injury” is defined in subs 5A(1) to mean:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is 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), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
The definition of “impairment” appears in subs 4(1) of the SRC Act, as follows:
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.
The case law and the Comcare Guide
The High Court in Canute v Comcare considered the relationship between injury and impairment in the SRC Act, noting that the concept of “an injury” is a term of pivotal importance in the structure of the Act.[3] Where “an injury” leads to a permanent impairment, an obligation arises to pay compensation to the employee in respect of the injury, but not otherwise. Thus the Act gives primacy to the establishment of “an injury”, and having identified the injury the question becomes, what impairment results from that injury?
[3] Canute v Comcare (2006) 226 CLR 535, at 539.
The Court in Canute made the following observations about the concept of “an injury”:
First, the Act does not oblige Comcare to pay compensation in respect of an employee’s impairment; it is liable to pay compensation in respect of “the injury”. Secondly, the term “injury” is not used in the Act in the sense of “workplace accident”. The definition of “injury” is expressed in terms of the resultant effect of an incident or ailment upon the employee’s body. Thirdly, the term “injury” is not used in a global sense to describe the general condition of the employee following an incident.[4]
[4] Canute v Comcare (2006) 226 CLR 535, at 540.
This approach was confirmed in Fellowes v Military Rehabilitation and Compensation Commission, where the High Court held that in assessing the degree of impairment resulting from an injury, the focus must fall upon the loss, the loss of use, or the damage or malfunction of a part of the body or bodily system or function or part of the bodily system or function.[5]
[5] Fellowes v Military Rehabilitation and Compensation Commission (2009) 240 CLR 28, at 38.
In assessing the extent of an applicant's impairment under s 24, the SRC Act empowers Comcare to prepare a written Guide setting out, inter alia:
… criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury shall be determined.[6]
[6] SRC Act, subs 28(1)(a).
The current Comcare Guide, Edition 2.1, is applicable to the applicant's present claim. It contains “Principles of Assessment”, including the following with respect to “Combined Values”:
Impairment is system or function based. A single injury may give rise to multiple losses of function and, therefore, multiple impairments. When more than one table applies in respect of that injury, separate scores should be allocated to each functional impairment. To obtain the whole person impairment in respect of that injury, those scores are then combined using the combined values chart (see Part 1, Appendix 1) unless the notes in the relevant section specifically stipulate that the scores are to be added. (For instance, see table 9.8.1).
…
Where two or more injuries give rise to different whole person impairments, each injury is to be assessed separately and the final scores for each injury (including any combined score for a particular injury) added together.
Of particular relevance here is the Introduction to Part II of Chapter 9 of the Guide, which relates to the “Upper Extremities”, and relevantly provides as follows:
The WPI rating for one upper extremity may be combined with a WPI rating for the other upper extremity, except in the case of assessments under Table 9.14, where the notes appearing prior to Table 9.14 are to be followed.[7]
[7] Comcare, Guide to the Assessment of the Degree of Permanent Impairment, Edition 2.1, p. 110.
Also relevant to the precise legal relationship between the SRC Act and the Guide is s 13 of the Legislative Instruments Act 2003. It relevantly provides as follows:
13 Construction of legislative instruments
(1) If enabling legislation confers on a rule-maker the power to make a legislative instrument, then, unless the contrary intention appears:
(a)the Acts Interpretation Act 1901 applies to any legislative instrument so made as if it were an Act and as if each provision of the legislative instrument were a section of an Act; and
(b)expressions used in any legislative instrument so made have the same meaning as in the enabling legislation as in force from time to time; and
(c)any legislative instrument so made is to be read and construed subject to the enabling legislation as in force from time to time, and so as not to exceed the power of the rule-maker.
(2) If any legislative instrument would, but for this subsection, be construed as being in excess of the rule-maker’s power, it is to be taken to be a valid instrument to the extent to which it is not in excess of that power.
THE APPLICANT’S CONTENTIONS
The applicant argued that the clear words of the Guide permit the combination of impairments arising from injuries where there is a “relationship between those injuries”. The applicant pointed to what were characterised as the clear words on page 110 of the Guide (quoted above), conferring a discretion on Comcare to combine a WPI rating for one upper extremity with a WPI rating for the other upper extremity. This, it was put to the Tribunal, allows the respective ratings for the applicant's shoulders (5% for the right shoulder and 6% for the left shoulder) to be combined to achieve a rating of 11%, a rating which exceeds the threshold in subs 24(7), qualifying the applicant for an award of compensation.
Counsel for the applicant, Mr Grey, put the test of whether the impairments could be combined in the following terms:
(a)does the Guide give a relevant instruction, and, if so, what is it? and
(b)is there any inconsistency between what the Guide instructs to be done, and the requirements of the SRC Act (when properly construed)?
To support the applicant’s reading of the Guide, Mr Grey pointed to other provisions of the Guide to similar effect. The notes governing the use of Table 9.14 were cited to support the argument that the note on page 110 was not “a single aberrant note”:
Where both limbs are affected, each limb should be assessed using the tables other than 9.14 and all impairments in both limbs combined using the combined values table. The combined impairment rating should then be compared with the rating taken from the ‘both extremities’ column in Table 9.14 and the higher rating obtained from the two methods used to determine WPI. [8]
[8] Guide, p. 145.
Mr Grey also pointed to provisions in the Guide allowing for impairments to be combined in a variety of other circumstances. He pointed, for example, to the direction to combine WPI ratings for conditions of the endocrine system with secondary conditions in Chapter 3:
The degree of impairment caused by secondary conditions (such as peripheral neuropathy, or peripheral vascular disease) accompanying an endocrine system condition must also be assessed under the relevant tables in other chapters, including tables in Chapter 10—The urinary system.
In this circumstance, using the combined values chart (Appendix 1), WPI ratings derived from the relevant tables in other chapters are combined with WPI ratings from tables in Chapter 3.[9]
and the direction to combine WPI ratings for disorders of the ear, nose and throat in Chapter 7, with ratings for surgically created stomas in Chapter 8:
WPI ratings derived from Table 7.7 may be combined with WPI ratings derived from Table 8.4: Surgically created stomas ...[10]
[9] Guide, p. 38.
[10] Guide, p. 72.
He contended that the linking of impairments in these circumstances reflected an inherent connection between the impairments. For example, the permission in Chapter 7 to combine ratings from surgically created stomas with impairment ratings regarding the capacity to chew or swallow was explained as arising from cases where an employee may suffer serious damage to the mouth and may need to be fed artificially in consequence. Although the reason for linking these impairments is not spelt out in the Guide, Mr Grey suggested that the connection between one impairment and the other in these circumstances is obvious, and the reason for combining impairments is self-evident.
Mr Grey suggested that, where the necessary connection between impairments is established, it is sufficient to rely upon the Guide’s instruction or permission to combine the ratings of those impairments:
… each injury is being assessed in accordance with Canute on an injury-by-injury basis; Dr Meegan has got 6 per cent for one, 5 per cent for the other. So far, so good. The Guide says “combine them”, and what we say is, if the Guide says “combine them”, you can combine them. Is it incompatible with the Act? No, because both injuries are contributing to the final impairment, because the Guide says that’s what you do.[11] (emphasis added)
[11] Mr Grey’s oral submissions at the hearing.
Mr Grey pointed out that Edition 2.1 of the Guide came into effect after the decisions in Canute and Fellowes, lending support to the argument that it was intended to allow the combination of impairments arising from injuries to different parts of the body, notwithstanding the emphasis in those cases on the treatment of impairments as arising from individual “injuries”. Reference was also made to the comments of Heydon J, during argument before the High Court in Canute, that the Guide may be an “arguable aid to statutory construction”, i.e. of the SRC Act itself.
Where the language of the Guide offers a discretion, rather than an “instruction”, to combine impairments, Mr Grey suggested that, in the context of beneficial legislation, combination was permissible where the effect is to confer a beneficial outcome on an injured employee, allowing them to reach the threshold for compensation under subs 24(7). Alternatively, it was permissible to avoid combining impairments where this might, through the operation of the Combined Values Chart, reduce an entitlement to compensation.
ANALYSIS
However, the fundamental difficulty with the applicant’s argument, as we see it, is that it is inconsistent with the High Court’s decision in Canute.
As both parties acknowledged, the starting point in determining an employee’s compensable permanent impairment is the proper construction and application of s 24 of the SRC Act. For the purposes of applying s 24, the High Court has very clearly held that permanent impairment must be determined separately, with respect to each “injury”, and the Guide is to be applied to determine the permanent impairment resulting from each (individual) injury:
It is the occurrence of “an injury” which both actuates and defines the ambit of Comcare’s duty pursuant to s 24 of the Act”.[12]
[12] Canute v Comcare (2006) 226 CLR 535, at 548.
The appellant in Canute injured his back in 1998, and then subsequently in 2002 made a compensation claim for an adjustment disorder with anxious and depressed mood arising from the back condition. The High Court held that each condition met the description of “an injury” for the purposes of the Act, and the Act obliged Comcare to determine the compensation payable in respect of the permanent impairment resulting from each “injury”.
In the present case, it is accepted by the parties that the injuries to the applicant’s shoulders are distinct and separate injuries. It seems to us to follow that the logic of Canute demands that the Guide must be applied separately to each injury to determine the degree of permanent impairment resulting from that injury, and that the threshold imposed by subs 24(7) must then be applied to the permanent impairment resulting from each injury. As the Court observed in Canute:
[14] … 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)).
[15] 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.
Mr Grey pointed to provisions of the Guide which, he submitted, appear to contemplate combining impairments from different injuries to arrive at an overall whole person impairment assessment in respect of both injuries. He relied in particular on the Introduction to Part II of Chapter 9, which relevantly states that:
The WPI rating for one upper extremity may be combined with a WPI rating for the other upper extremity, except in the case of assessments under Table 9.14, where the notes appearing prior to Table 9.14 are to be followed.”[13]
[13] Guide, p. 110.
We acknowledge that, taken at face value and read in isolation, some parts of the Guide, including the above passage, have a degree of ambiguity. However, in these circumstances the proper question for us is whether the provisions of the Guide relevant to the decision under review can be read consistently with the SRC Act. As his Honour Justice Buchanan observed in Broadhurst v Comcare (2010) 189 FCR 561 (at [565]):
Resolution of any inconsistencies between the provisions of the Comcare Guide and the requirements of the SRC Act therefore has to be accomplished by recognising that the Comcare Guide cannot alter the requirements or operation of the SRC Act. It must, if it is possible to do so, be given a construction that is consistent with a proper construction of the SRC Act. If that is not possible it must, to the extent necessary, be treated as unauthorised.[14]
[14] See also [17]. We note that his Honour’s statement summarises the effect of s 13 of the Legislative Instruments Act 2003, and is also consistent with the Full Court’s decision in Comcare v Broadhurst (2011) 192 FCR 497.
Having turned our minds to this question, we have concluded that it is possible to read the relevant parts of the Guide consistently with Canute. In our view, the fact that the Introduction to Part II of Chapter 9 of the Guide contemplates combining impairments of the left and right arms does not require, or imply, an assumption that the two impairments must or even may arise from different injuries. We can readily imagine a number of scenarios in which both arms could suffer impairments arising from the one injury :- an arthritic condition affecting the joints in both arms is just one example. Others include a stroke, a spinal injury or neurological condition affecting both arms, or a bilateral overuse condition affecting both arms. We would make the same observations with respect to the commentary which accompanies Table 9.14, at page 145 of the Guide. Our conclusion is also bolstered by the “Principles of Assessment” in the Guide, particularly those relating to “Combined Values”, at page 12 of the Guide, to which specific reference is made in the Introduction to Chapter 9.[15]
[15] At p. 188.
As we have indicated, we therefore consider it possible to read the relevant Table, Table 9.11, consistently with the SRC Act, as construed in Canute. In other words, we consider it possible to read the Table as permitting separate impairments to be combined only if they result from the same “injury”. It follows, in our view, that we are obliged to construe the Table in that way, and we do not accept Mr Grey’s submission that we have a discretion to adopt a different construction of the Table on the basis that this would yield a more beneficial outcome for the applicant.
For completeness, whilst it is not strictly necessary for us to refer to other Tables for the purposes of our decision, we have also found it possible to read most of the other parts of the Guide we were taken to consistently with Canute. For instance, we do not find it difficult to conceive of circumstances in which a single injury might result in both difficulties chewing and swallowing, and a surgically-created stoma.
We acknowledge that, insofar as it suggests that an impairment flowing from a secondary condition, such as peripheral vascular disease, can be combined with an impairment from a primary condition, such as diabetes, the Introduction to Chapter 3 of the Guide[16] is difficult to reconcile with Canute. However, it is unnecessary for us to pursue this further in the context of this matter.
[16] Guide, p. 38.
Returning to the facts of this matter, there is no dispute that the applicant has suffered two separate shoulder injuries. It follows from Canute, in our view (and from the terms of the Guide, properly construed) that the provisions of the Guide must be applied separately to each injury, and the resulting impairments cannot be combined to arrive at an overall impairment rating, as they could if both impairments had resulted from a single injury.
Unfortunately for the applicant, this has the consequence that, as the High Court in Canute envisaged would occur in some cases, the construction of the Act adopted by the Court operates to her “disadvantage”.[17] That is because neither of her injuries has resulted in a permanent impairment of more than 10%, and therefore subs 24(7) dictates that her impairments are not compensable.
[17] Canute v Comcare (2006) 226 CLR 535, at 549.
This is regrettable from the applicant’s point of view, but for the reasons we have given, we consider it to be the inevitable consequence of the High Court’s decision in Canute.
Although the possibility of referral of a question of law to the Federal Court[18] was canvassed at the hearing, as we have found it possible to construe those parts of the Guide relevant to the decision under review consistently with the SRC Act, we have not found it necessary to consider or explore that possibility further.
[18] See s 45 of the Administrative Appeals Tribunal Act 1975.
We have accordingly decided to affirm the decision under review.
DECISION
The decision under review is affirmed.
I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean and Deputy President Gary Humphries ........ [Sgd] ........................................
Associate
Dated 28 April 2015
Date of hearing 24 February 2015 Counsel for the Applicant Mr L Grey Solicitors for the Respondent Tindall Gask Bentley Lawyers Counsel for the Respondent Mr M Gollan Solicitors for the Respondent Sparke Helmore Lawyers
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