Maida and Comcare - [2001] AATA 663

DECISION AND REASONS FOR DECISION [2001] AATA 663

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2000/481

GENERAL ADMINISTRATIVE DIVISION       )
           Re      GUISSEPPE MAIDA
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE Dr J.T.B. Linn (Member)

Date20 July 2001
PlaceAdelaide

Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and in substitution therefor, decides that: (a) the applicant is entitled to compensation pursuant to sections 24 and 27 in accordance with these reasons; and (b) the matter be remitted to the respondent for the calculation of the compensation payable. The Tribunal, pursuant to section 67 of the Safety, Rehabilitation and Compensation Act 1988, orders that the respondent pay the applicant's costs. In the absence of agreement between the parties, costs are to be taxed by a District Registrar or Deputy District Registrar.

(Signed)
J.A. KIOSOGLOUS
(Senior Member)
CATCHWORDS
COMPENSATION - whether pre 1 December 1988 permanent impairment - medical evidence considered - whether lump sum payable for worsening of pre 1 December 1988 permanent impairment - Comcare v West applied
Safety Rehabilitation and Compensation Act 1988 ss. 4, 24, 25, 27, 67, 124
Compensation (Commonwealth Government Employees) Act 1971
Blackman v Australian Telecommunications Corporation (1990) 12 AAR 11
Brennan v Comcare (1994) 50 FCR 555
Comcare v Levett (1995) 131 ALR 645
Re Fisher and Comcare (1995) 21 AAR 431
Hoyle v Telstra Corporation Ltd (1997) 75 FCR 390
Department of Defence as Delegate of Comcare v West (1998) 156 ALR 651
Re Campbell and Department of Defence as Delegate of Comcare [1999] AATA 324
Re Braithwaite and Comcare [2001] AATA 125

REASONS FOR DECISION

20 July 2001 Senior Member J.A. Kiosoglous MBE Dr J.T.B. Linn (Member)

This is an application by Mr Guiseppe Maida (the applicant) for review of a decision of a review officer of the respondent dated 2 February 2000 (T51) which affirmed upon review a decision of a delegate of the respondent dated 23 November 1998 (T42) which rejected the applicant's permanent impairment claim in respect of an accepted schizophrenic condition.
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T51), together with 20 exhibits, 5 lodged by the applicant (Exhibits A1-A5) and 15 lodged by the respondent (Exhibits R1-R15). In addition, the Tribunal heard evidence from the applicant, who also called Dr P. Davis, Psychiatrist, and Dr P. Pers, General Practitioner. The respondent called as witnesses Dr L. Ding, Psychiatrist, and Professor R. Goldney, Psychiatrist. Mr G. Britton represented the applicant and Mr J. Wallace represented the respondent, both of counsel.
The issue before the Tribunal for determination is whether or not the applicant is entitled to a lump sum permanent impairment payment in respect of his condition of schizophrenia.
history of the application
The applicant was born on 18 October 1966 and served in the Australian Army from 7 April 1987 until being medically discharged on 23 September 1988. In April 1988 the applicant was admitted for psychiatric treatment to the Repatriation Hospital, Daw Park, and did not return to employment after that time.
The applicant subsequently submitted a claim for compensation for the condition of paranoid schizophrenia which was ultimately accepted by the respondent on 11 April 1995 (T37). On 17 November 1998 the applicant, through his solicitors, requested payment of a lump sum pursuant to section 24 of the Safety Rehabilitation and Compensation Act 1988 (the Act) (T41). On 23 November 1998 a delegate of the respondent rejected this claim (T42). This decision was affirmed upon review dated 2 February 2000 (T51), with the review officer stating (inter alia):
"…
On the evidence available it is my opinion that Mr Maida's condition has been permanent since April 1988 and that over the ensuing years his degree of permanent impairment has not changed.
I therefore conclude that Mr Maida's condition became permanent prior to the introduction of the SRC Act 1988. Subsequently your client's psychiatric condition is covered under the Compensation (Commonwealth Government Employees) Act 1971, which did not provide for the payment of lump sum in respect of psychiatric conditions. (Blackman v Australian Telecommunications Commission (1990) 12 AAR 11).
…"

applicant's evidence

The applicant told the Tribunal that he is 34 years of age, and is the fifth of six children. He completed year 11 at high school and worked with his father as a cement worker, in a bottle shop and in a warehouse, prior to enlisting in the Army at age 20 in 1987. He stated that whilst he has vague memories of certain events over the ensuing years, due to his condition and medications, he is cloudy as to details and dates of events.
The applicant recalled attending jungle training in Queensland in early 1988, and returning for his brother's wedding in Adelaide. He stated that his family became concerned about hallucinations he was having and an apparent attempted suicide, resulting in attendance upon Dr Pers on Anzac Day 1988, and admission to the Repatriation General Hospital at Daw Park.
The applicant stated that prior to 1988 he had lived in his own place in Sydney for a year. Between 1988 and 1995 he lived with his parents. In 1995 he bought his own home, and stayed in it for six months, before being admitted to hospital as an in-patient. His parents subsequently obtained a guardianship order and rented out his house. He told the Tribunal that he would like to move out on his own eventually, to work and to be married before he turns forty, and that he sometimes forgets to take his medication. He gave evidence that every day is different, and can be easy or hard. At times he is very lethargic, and cannot get out of bed, whereas he has considerable energy on good days. As an example, he cited an occasion several weeks prior to the hearing where he started digging a trench, but was exhausted after ten minutes work. He does not have a daily routine which he can stick to, as each day brings different challenges.
In relation to his medication, he stated that each type seems to work for a couple of years, and that he has tried a variety of different medications in the last two years particularly. Whilst there have been a couple of occasions since 1988 where he has not taken medication, such as a three month period in 1998, he agreed that he has been prescribed medication since 1988. He told the Tribunal that medication is helping at the moment, but that he can still have turns regardless of medication. He further stated that he is expressing more to Dr Davis and that things are looking up.
The applicant stated that he does not have difficulties living with his parents, but recalled on occasion where he was in hospital and did not want to see them as he felt that they were conspiring against him. He also recalled incidents in 1995 and 1996 in which he saw colours and was hallucinating. He told the Tribunal that there is not one day where he does not hear voices or his brain "talks to itself" and agreed, in cross-examination, that he has had intrusive thoughts ever since 1988. When he is having a "turn" he thinks people on the radio are talking to him and becomes obsessed with things like hand signals. He has had much assistance from his sisters and parents to calm him down and keep him out of hospital.
The applicant told the Tribunal that he tried various hobbies over the years and enjoyed fishing. Upon more careful examination, he told the Tribunal that he fished a lot more in the early 1990s and has maybe been fishing three times over the past couple of years. He agreed, in cross-examination, that he can shower, toilet and eat without assistance. He stated, under cross-examination, that he does not have any sexual dysfunction, but this evidence was somewhat tempered in re-examination, wherein he agreed that he has not had significant sexual partners since having a girlfriend in 1991 for some 9 months.
dr p. davis
Dr Davis, Psychiatrist, has been the applicant's treating psychiatrist since 20 March 1998. He prepared four reports in relation to the applicant dated 5 November 1998, 9 November 1998, 24 November 1999 and 15 February 2001 (T39, T40, T47 and Exhibit A4 respectively). In the report dated 15 February 2001 (Exhibit A4) he stated (inter alia):
"…
Mr Maida's illness was first diagnosed in 1988 when he was in military service. As commented previously, I believe his employment with the Army materially contributed to his illness. I began treating him in 1998 when he was referred to me by his family doctor.
Allowing for a period of assessment and a monitoring of Mr Maida's mental state and his response to treatment, I arrived at the conclusion in 1999 that Mr Maida's schizophrenic illness is a permanent condition for which he will require ongoing and indefinite medical treatment.
…"

In oral evidence in support of his reports, Dr Davis stated that it is not possible to make a diagnosis of schizophrenia at the first onset of symptoms, and that the initial diagnosis would correctly be a schizophreniform psychosis. He told the Tribunal that 6 months of persistent symptoms are needed to actually diagnose schizophrenia, as a number of psychoses will resolve without proceeding to schizophrenia itself. He also stated that it is standard clinical practice to allow a period of time before addressing the question of whether or not a condition is permanent or not. He considered that the applicant now has a permanent impairment particularly due to the duration of his illness and the presence of the condition for such a length of time. These factors demonstrated that it is likely that there will be no recovery.
In the case of the applicant, Dr Davis considered that whilst symptoms commenced in April 1988, it would have been difficult to predict at that time whether the condition was permanent, and that it was proper to wait at least one to two years before making a decision about permanence. He agreed, in cross-examination, that the applicant has had a continuum of disturbance since April 1988 and has had a malfunction since 1988. He did not consider that one could now say that from the very start, the condition was going to be permanent, and that by October/November 1988, the clinicians would not have known what course the condition would take, although it was probable that the condition would continue onwards. He agreed that as at November 1988 the applicant was a hospital dischargee requiring daily medication and that he did not return to normal functioning after the onset of his condition, which is the same now as that diagnosed in 1988.
Dr Davis assessed the applicant as currently being at 30% on Table 5.1 of the Guide to the Assessment of the Degree of Permanent Impairment (the Guide), and stated that he probably hovers between 30-40% without meeting the 40% characteristics. He indicated that the evidence of a longer term relationship in the early 1990s would indicate a better degree of functioning as at that time, and considered that there has been an overall decline in the applicant's level of functioning since 1988. He speculated that the applicant's level of impairment in 1988 would have been about 10-20%.
dr p. pers
Dr Pers was the applicant's treating General Practitioner from childhood until last year. He recalled the applicant, in a desperate state, attending his home on 25 April 1988 with his father, at which point he diagnosed a schizophreniform disorder, which he described as having features of paranoid illness without the diagnostic features necessary to diagnose schizophrenia. He stated that he saw the applicant from time to time over the years and prescribed anti-psychotic medications at times under instruction from the Repatriation General Hospital.
dr l. ding
Dr Ding, Psychiatrist, saw the applicant on 29 September 1999 and prepared five reports in relation to this matter dated 19 October 1999 (T46), 1 June 2000 (Exhibit R8), 18 September 2000 (Exhibit R11), 30 September 2000 (Exhibit R12), and 6 November 2000 (Exhibit R13). The Tribunal notes the following from the report dated 30 September 2000 (Exhibit R12):
"…
The reports confirm my opinion that by 1 December 1988, Mr Maida was partially impaired, but on the basis of the recurring nature of the illness it would be appropriate to conclude he was permanently but partially impaired as at 1 December 1988.
The serial medical notes would indicate that the level of recovery from his psychotic symptoms was reasonably good, even in February 1990. Subsequent to that his recovery became incomplete and even when the psychotic symptoms came under better control, it would appear Mr Maida remained chronically unwell – i.e active or positive schizophrenic symptoms, namely delusions, continued.
On that basis, it would be appropriate to conclude there was a gradual worsening of Mr Maida's condition during the period following 1 December 1988.
…"

In oral evidence in support of his reports, Dr Ding told the Tribunal that the applicant's current level of impairment is significant, and is greater now than what it was in 1988. He considered that it was difficult, however, to quantify by how much. Dr Ding told the Tribunal that his opinion as to whether or not the condition was permanent as at December 1988 only began to crystallise once he had sighted the Repatriation General Hospital notes.
Dr Ding stated that he generally agreed with the cautious approach advocated by Dr Davis, in that a clinician should wait for about a year before defining a schizophrenic diagnosis. He considered that retrospectively, however, one could see that the applicant had ongoing symptoms following his discharge from hospital in 1988, was unable to return to employment and never returned to previous levels of interest of liveliness. He further considered that the regular relapses experienced by the applicant gave the condition permanent characteristics.
professor r. goldney
Professor Goldney, Psychiatrist, saw the applicant on 24 October 1995 and prepared two reports in relation to this matter dated 27 October 1995 (Exhibit R4) and 29 March 2001 (Exhibit R6). In the latter report he stated (inter alia):
"…
1.A limited degree of impairment would have become permanent prior to 1 December 1988. As noted by Dr. Ding (30/9/00), that impairment would have only been partial at that date. Thus although, as presciently noted in the initial Discharge Summary, it was not possible to be sure about the prognosis, in retrospect it is quite evident that Mr. Maida's condition had some degree of permanence even at that stage. Indeed, it required two different anti-psychotic drugs, one of which was given by injection.
2.Mr. Maida's current permanent impairment is partly qualitatively different, but more specifically quantitatively different to the same impairment that he had had prior to 1 December 1988. …
…
4.On the basis of the information contained in the record of interview with the psychiatric registrar, Dr. McCarthy, on 7/12/88, it would appear that Mr. Maida had only minor impairment at that time. I would be loath to say that there was no impairment, as the documentation was not full. It is important to appreciate that Mr. Maida was on two different anti-psychotic drugs at that point. It is probable that his impairment at that stage was at the 5 or 10% level.
With regard to Mr. Maida's present impairment, I am not in a position to delineate that, other than to note that quite clearly he would appear to be more impaired than when I assessed him at the 25% level in October 1995.
…"

In oral evidence in support of his reports, Professor Goldney stated that the schizophrenaform psychosis diagnosis should never have been made, as the applicant had ongoing symptoms and also received ongoing intro-muscular medication which one would not use in a schizophrenaform psychosis condition. He considered that the applicant had schizophrenia from the outset. He characterised the applicant's condition as being a disturbance of the mind, and indicated that it can be a very pervasive condition which can influence things such as movement and cognitive abilities.
As at 1988, he assessed the applicant as being at a 5-10% impairment, pursuant to Table 5.1 of the Guide, at about 10% in 1995 and accepted Dr Davis' assessment of a current 30% impairment. He considered that the applicant has a gradually deteriorating condition, and has become significantly worse in the last 10 years. He described the applicant as falling into the one third of patients who have good periods followed by bad periods. He considered that if the applicant had a relationship in 1991 but not since, that this supported the deterioration in functioning over time. He referred to the medical notes in 1988 which indicated that the applicant was on long acting medication for quite a long period in 1988, and that the therapists were clearly concerned from the outset as to the long term prognosis. He disagreed with Dr Davis that one needed to wait a full year before making a diagnosis of schizophrenia, and stated that it was most unusual to put a patient on intro-muscular anti-psychotic drugs so soon.
other medical evidence
The Tribunal also notes the extensive documentary medical evidence before it, particularly the various clinical notes and reports from Drs Burvill, Bowman, Murray and Cotton. It has considered all such information before it in reaching its decision.
applicant's submissions
Mr Britton submitted, on behalf of the applicant, that the applicant has a permanent impairment. He further submitted that the Tribunal should prefer the opinion of Dr Davis that it is not appropriate to label a condition as schizophrenia from the outset. The significance of the diagnosis, in his submission, is that it directs the clinician to then consider the long-term management strategy. A retrospective assessment should not replace clinical practice. He sought to distinguish Dr Ding on the basis of changing opinions, and submitted that Dr Davis was in the best position, as the applicant's current clinician, to provide an assessment.
Mr Britton submitted that the applicant's condition was not permanent until 1989 or 1990 and that the applicant has had at least a 10% worsening of his condition since 1988 to the present day.
respondent's submissions
Mr Wallace submitted, on behalf of the respondent, that the authorities clearly indicate that the Tribunal is bound by the change of legislation as at 1 December 1988 and therefore must engage in a retrospective exercise to determine whether or not the condition was permanent as at that time. He submitted that the applicant had schizophrenia from the outset and has had the same condition since April 1988. In that event, he submitted that one cannot get compensation under the new Act for the same condition for which one could not be compensated under the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act).
Mr Wallace submitted that since April 1988 the applicant has needed supervision in activities of daily living and could well meet the level of 30% impairment as from 1988.
discussion and findings
The Tribunal has only set out the evidence and submissions briefly, but takes all such material into account in reaching its decision. In particular, it notes the number of authorities placed before it by both parties, to which it will turn in due course.
As a preliminary point the Tribunal notes that it is common ground that the applicant's condition constitutes a disease for the purposes of section 4 of the Act, and any entitlements follow in accordance with that proposition.

This is not a case where the doctors hold opinions at great variance from one another. Drs Davis and Ding and Professor Goldney are all respected psychiatrists and the Tribunal has given careful attention to the evidence of all three. What becomes particularly significant in this matter, are the clinical notes before the Tribunal (Exhibits A3 and A5). In a series of letters dated 22 July 1988, 16 September 1988, 9 December 1988, and continuing into 1990-1995 (contained in Exhibit A5), Dr Pers was being informed by the Repatriation Hospital as to the applicant's presentation. This was waxing and waning over time, and on 9 December 1988 for example, it is recorded that the applicant "feels well at present". As Professor Goldney indicated to the Tribunal, however, this is not of itself a sign of recovery, but of cautious optimism in the early days of the condition. On 13 February 1989, Dr Ben-Tovim reports (inter alia contained in Exhibit A5):
"…
Mr Maida has been under treatment for his mental condition virtually continuously since its onset. Mr Maida's condition, originally diagnosed as a schizophreniform psychosis, may now more properly be identified as of a schizophrenic nature.
…"

Within two and a half months of 1 December 1988 therefore, Dr Ben-Tovim was ascribing the diagnosis of schizophrenia to the applicant's condition. From April 1988, the applicant has had persistent symptoms. On his own evidence, he has been prescribed medication since that time, and not a day has passed without him having intrusive thoughts. Taking into account the clinical history before it, the Tribunal prefers Professor Goldney's opinion that it is now possible to conclude that the applicant had schizophrenia from the outset in April 1988. Whilst there is a degree of artificiality in performing such a retrospective assessment, this is the task before the Tribunal, and on the available evidence, the Tribunal finds that the applicant had schizophrenia from April 1988. It further finds that the condition of schizophrenia suffered by the applicant in April 1988 is the same condition from which he has continued to suffer.
Dr Ding and Professor Goldney both expressed the opinion that the applicant's condition could be said to be permanent (at least partially) prior to December 1988. Taking into account the evidence before it, the Tribunal accepts this proposition, and so finds, that the applicant's condition of schizophrenia could be said to be permanent prior to December 1988. The applicant did not improve after April 1988, and whilst he has had good days, he could not be said to have recovered. He has never been able to work and, as Dr Ding stated, has never returned to pre-illness levels of liveliness or interest. The Tribunal accepts that it is correct for Dr Davis to adopt a cautious approach, and not be too quick to jump to the conclusion that a condition is permanent. The Tribunal has before it, however, a significant clinical history which reveals an ongoing problem. In light of such, it is appropriate to consider that, on the balance of probabilities, the applicant had a permanent schizophrenic condition prior to 1 December 1988 and the Tribunal so finds. In this regard, the Tribunal finds further that it is satisfied that the permanent impairment flowing from this condition arose prior to 1 December 1988.
The current level of impairment is a question of clinical judgement. The Tribunal therefore accepts Dr Davis' assessment of 30% impairment pursuant to Table 5.1 of the Guide. Professor Goldney concurred with this assessment. The Tribunal notes that the applicant may well be between 30-40% but on current evidence, does not satisfy the 40% criteria. Accordingly, the Tribunal finds a current impairment of 30% pursuant to Table 5.1 of the Guide. As at 1988, Dr Davis considered that the applicant was between 10-20% whilst conceding, in cross-examination, that it was possible the applicant was at 30% in November 1988. He noted that it was difficult to now determine the level of impairment in 1988. Professor Goldney considered there to be 5-10% impairment in 1988, and noted that the applicant was probably worse in 1988 than the documents may reveal. Dr Ding considered that the applicant has a greater degree of impairment now than as at 1988.
On the basis of the available evidence, particularly the assessments of Dr Davis and Professor Goldney, the Tribunal finds that an appropriate impairment rating for the applicant, pursuant to Table 5.1 of the Guide, as at November 1988 is 10%.
The evidence suggests that the applicant's condition has gradually deteriorated, and his level of functioning has diminished over the years. Mr Wallace suggested in his submissions that the applicant has met the 30% impairment rating since April 1988. Mr Wallace did not, however, seek to challenge Professor Goldney's assessment of 5-10% during examination of that witness. The Tribunal prefers the medical assessments of Professor Goldney and Dr Davis as reflecting the more probable situation. Dr Davis only conceded that 30% as at November 1988 was a possibility, and the Tribunal must take into account that all psychiatric testimony was to the effect that the applicant's condition has got worse between 1988 and the present. The Tribunal is not in the habit of speculating contrary to the medical evidence before it. The Tribunal finds, more particularly, that on the evidence before it, that it is reasonable to conclude that the applicant needs supervision in the activities of daily living at the current time.
Sub-paragraph 124(3)(b) of the Act precludes recovery pursuant to sections 24 or 27 of the said Act where the person has a permanent impairment prior to 1 December 1988 and the person was not entitled to lump sum compensation under the 1971 Act or its predecessors. For the reasons given above, the Tribunal has found, as a matter of fact, that the applicant's condition was a permanent impairment prior to 1 December 1988. The 1971 Act does not provide for lump sum compensation for such a psychiatric illness, and accordingly, the applicant appears not to have a prima facie entitlement to lump sum compensation.
The question which remains, however, is whether or not the applicant is entitled to compensation for any post December 1988 worsening of his condition, given the Tribunal's findings as to the November 1988 and current impairment levels. The line of authorities in this regard commences with Blackman v Australian Telecommunications Corporation (1990) 12 AAR 11 wherein Pincus, Foster and Hill JJ stated (inter alia) at page 14:
"…
There was some evidence before the Tribunal that the disease, and therefore the degree of impairment, had generally worsened since the condition was first diagnosed, in accordance with its natural progress. It appears that treatment alleviated the effects of the disease at one stage, but the applicant's overall condition has tended to deteriorate. Mr Joseph's contention amounted to this: although there is only one disease and, having regard to the definition of injury in s 4(1), therefore only one "injury", if the impairment consequent upon it has worsened substantially after the commencing date, then that worsening in itself constituted an "impairment" within the meaning of s 124(3) occurring after the commencing date.
If the contention of [sic] behalf of the applicant is correct, then each time an impairment worsens significantly, there is a new impairment within the meaning of the 1988 Act. We cannot read the relevant provisions in this way. The scheme of the Act, in particular of ss 24 and 25, is not that as a disease progresses, the aggravation of its consequences constitutes a series of new impairments, each giving rise to a separate liability to pay compensation. …
To achieve the result that a variation (substantial or otherwise) of the degree of impairment should be treated as a new impairment for the purposes of s 124(3), different language would have been necessary. …
The consequence is that the applicant is not entitled to compensation under ss 24 and 25 of the 1988 Act in respect of his permanent impairment, because it occurred, that is, came into existence, before the commencing date.
…"

Subsequent to Blackman, the matter again came to the attention of the Full Federal Court, comprising Burchett, Ryan and Gummow JJ in Brennan v Comcare (1994) 50 FCR 555. Having considered the provisions at length, Burchett J concluded at page 560 (inter alia):
"…
However, even if the nature of an impairment, consisting of the debility or other inevitable effect of a single disease entity, such as was involved in Blackman, requires that a gradual worsening of the condition not be seen as involving any fresh impairment, it would not follow that a similar result should obtain in the present case. Whether or not it should, in my opinion, will depend upon the facts as found when the Administrative Appeals Tribunal reconsiders the case. It may find there has been little or no change since the commencing date. On the other hand, it may find a significant new development has occurred involving a loss of the use or malfunction of some part of the body, bodily system or function. (Any of these would constitute an impairment within the definition in s 4.) If so, I do not think Blackman would stand in the way. In Blackman, the one state of dysfunction, (to use a neutral expression) may, at most, have got worse. But had a separate dysfunction appeared, the reasoning of the Court in that case would not have been applicable. Nor is the decision authority for such a case. Quite literally, a separate dysfunction would be an impairment within the statutory definition. …"

Gummow J comments on the above cited passage from Blackman (inter alia) at page 571:
"…
This passage is to be treated with some caution. As Burchett J points out in his judgement on the present appeal, s 24 imposes a liability upon Comcare where an injury results in a permanent impairment. The terms of the legislation are consistent with the imposition of distinct liabilities where an injury results in more than one permanent impairment, and in a particular case those results may be manifested sequentially rather than concurrently. …
…"

Lockhart, Beazley and Moore JJ considered the matter further in Comcare v Levett (1995) 131 ALR 645 and commented (inter alia) at page 650:
"…
… Both Burchett J and Gummow J expressed the view that Blackman should be treated with some caution especially on the question whether a gradual worsening of a condition can or cannot be seen as involving a fresh impairment … We share that view.
…"

Mathews J considered the issue as President of this Tribunal (as she then was) in Re Fisher and Comcare (1995) 21 AAR 431 wherein she stated at pages 439 and 440 (inter alia):
"…
… With all due respect to the Court in Blackman, it is difficult to go beyond the comments made about that case by Burchett J in Brennan. …
…"
In Hoyle v Telstra Corporation Ltd (1997) 75 FCR 390, Wilcox, Lindgren and Emmett JJ further considered the relevant provisions, noting (inter alia) at page 398:
"…
… the general principle, discernible in s 124 as a whole, [is] that an employee whose entitlement has a nexus with a period before the Commencing Day is not intended to be in a better position in respect of a permanent impairment simply because of the enactment of the Compensation Act and the repeal of the 1971 Act. The changes are not such as would indicate that there was a legislative intention to give to an employee who was totally incapacitated at the Commencement Day, the right to recover a lump sum payment under s 24 of the Compensation Act which that employee would not have been entitled to recover under s 39 of the 1971 Act if the Compensation Act had not been enacted.
…"

Subsequent to Hoyle, O'Connor, Heerey and Merkel JJ considered the relevant provisions in Department of Defence as Delegate of Comcare v West (1998) 156 ALR 651. In the majority decision with which O'Connor J concurred, Merkel J stated (inter alia) at pages 669 and 670:
"…
A loss of the entitlement conferred under ss 24 and 25 by reason of s 124(3) only occurs when the permanent impairment the subject of the claim is the permanent impairment that the employee suffered as at 1 December 1988. On my reasoning, and that of Burchett J in Brennan, where a change in a permanent impairment occurring after the commencement date is such that, quantitatively and qualitatively, it is properly to be characterised as a further or new impairment occurring after the commencing date it is compensable by a lump sum payment under ss 24 and 25. That conclusion is consistent with the language used and with the statutory policy to be discerned from ss 24, 25 and 124 of providing benefits to workers in respect of a further permanent impairment that occurs after the commencing day irrespective of whether the injury that resulted in the impairment occurred before or after the commencing day. …
I have had the advantage of reading the reasons of Heerey J. The essential difference between his Honour's approach and the one which I have adopted is that I have concluded that it is not appropriate to characterise the relevant permanent impairment solely by reference to a loss of use or malfunction of part of the body or bodily system or function without regard to the nature and extent of the loss of use or malfunction. In my view the nature and extent of the loss of use or malfunction is critical to determining whether an impairment has changed to such an extent that it is a further or new impairment. His Honour's conclusion must treat a slight loss of use of a limb which progresses to a total loss of use as the same permanent impairment. For the reasons set out above I do not accept that that is so.
However, in reaching my conclusion, I do not disagree with the conclusion in Blackman that gradual worsening does not result in a series of separate or further impairments. Inevitably, questions of fact and degree are involved in making a qualitative assessment as to whether, in a particular case, the permanent impairment existing as at 1 December 1988 has deteriorated to an extent that it is properly to be characterised as a further or different impairment to that which existed at the commencement date. When that question is answered in the affirmative an entitlement to lump sum compensation arises under ss 24 and 25 which is not precluded by s 124(3).
… The possible increase in the respondent's impairment can range from slight (eg from 49% to 51% impairment) which would be unlikely to constitute a new impairment, to substantial (eg from 5% to 99% impairment) which in my view would be likely to constitute a further and different impairment. In the former case it is unlikely that there would be lump sum compensation by reason of s 124(3). In the latter case it is likely that there would be lump sum compensation in respect of the further impairment under ss 24 and 25 which would not be precluded by s 124(3).
…"

Mr Wallace submitted that West was "headed down the wrong track" and that the Tribunal should distinguish it and Burchett's reasoning in Brennan, and prefer the approach taken by the courts in Blackman, Hoyle and by Gummow J in Brennan. What this submission overlooks is that West is the most recent Full Federal Court decision, and is binding authority upon this Tribunal. Moreover, the Tribunal concurs with the reasoning of Merkel J in West. Further to that, this Tribunal has (quite correctly) adopted the approach directed by the majority in West in matters decided since that time (see Re Campbell and Department of Defence as Delegate of Comcare [1999] AATA 324 and Re Braithwaite and Comcare [2001] AATA 125).
In Re Campbell, Member Dr Campbell stated (inter alia) at paragraphs 88 and 89:
"88. … this matter, in effect, rests with the issue of a quantitative deterioration in a pre 1 December 1988 impairment for which compensation is to be paid. Thus this matter can progress successfully on either the deterioration of a pre 1 December 1988 permanent impairment, or alternatively on the development of a new permanent impairment. In both, there is a requirement for the whole person impairment to have either deteriorated by a further 10%, or alternatively the new permanent impairment has increased the whole person impairment by 10%.
89. The Tribunal, in addressing these issues, has paid particular attention to the reasoning given in the decisions of O'Connor, Heerey and Merkel JJ in Department of Defence as Delegate of Comcare v West (1998) 50 ALD 712 and concludes in this matter that there has been both a qualitative and quantitative change in the pre 1 December 1988 permanent impairment, so much so that it is appropriate to characterise the impairment as a further or new impairment. The Tribunal would also wish to stress the significant variance in the nature and extent of the loss of use as reflected in the underlying pathophysiological processes of both conditions and by the increasing symptomology associated with the irreversible nature of the osteoarthritis."

With respect, this Tribunal concurs with the approach taken by Dr Campbell to this particular legal issue in applying West. In Re Braithwaite, Senior Member Beddoe and Member Dr Kennedy in the majority decision, and Member Miss Brennan in the minority decision, all adopt a similar approach. At paragraphs 125 and 126 of the majority decision, the Tribunal stated:
"125. We are also satisfied that the permanent condition became unstable in 1994 resulting in an exacerbation of the pre-existing condition and Dr Lander had to change medication to eventually stabilise the condition. That was, in our view, a temporary exacerbation of the condition notwithstanding that a period of more than three years was required to stabilise the condition.
126. The question then arises as to whether the applicant suffered further injury because of the exacerbation of the pre-existing condition resulting in a new impairment. On the material before us we have come to the conclusion that there was no significant further injury demonstrated on the evidence."

Similarly in the minority decision, Member Brennan stated (inter alia) at paragraph 32:
"32. I therefore find that the permanent impairment which existed as at 1 December, 1988 has deteriorated since 1995 to an extent that it is now properly characterised as a further or expanded impairment. …"

With the foregoing consideration in mind, the Tribunal applies the test as enunciated by the majority in West. This requires a qualitative and quantitative assessment of the evidence as to whether or not the deterioration in the applicant's condition is such that the deterioration constitutes a new or further impairment for the purposes of sections 24 and 25 of the Act.
West draws a distinction between "gradual worsening" and "deterioration to an extent that it is properly to be characterised as a further or different impairment". The difficulty presented in the present application is that the very nature of the condition is such that, unfortunately, a gradual deterioration of the condition is not uncommon. It is not akin to a person with an arm problem whose arm eventually falls off one day (to use a facetious example). It cannot be the intention of the legislature, or indeed of the majority in West, however, to exclude from consideration the type of psychiatric condition that manifests as in the present application, simply because a deterioration of the condition is hard to pin down as to precise dates of change. What remains required by West is the qualitative and quantitative analysis of the evidence.
The Tribunal has found above that the applicant's condition has progressed from a 10% impairment pursuant to Table 5.1 of the Guide in 1988 to a 30% current impairment. Over this period of time, his level of impairment has increased by four increments according to the Table 5.1 levels, or deteriorated by some 20%. Such a change of itself, must be marked as significant alteration. Further, Dr Davis and Professor Goldney speculated that he might well currently have between a 30-40% impairment. In oral evidence, the Tribunal heard about the significant lifestyle and relationship effects resulting from the applicant's condition. As difficult as it was to elicit precise information from the applicant, the distinct impression remains that the impairment has a more serious impact now than in 1988, or for example, in 1991 when he was able to sustain a relationship. In 1995 he attempted to move out of home, and not being successful in this attempt, it does not appear that things have improved, certainly not in terms of the effects of the impairment, or in the nature of the impairment itself.

Taking into account all of the evidence before it, the Tribunal is satisfied, and so finds, that, as a matter of fact, noting both the qualitative and quantitative aspects, the applicant's deterioration is such that it is properly characterised as a further or different impairment at the current time. There is a substantial increase in the level of impairment, and a distinct qualitative difference, in terms of the effect of the impairment upon the applicant.
Accordingly, the Tribunal finds that the applicant is entitled to receive compensation, pursuant to section 24, and consequentially section 27, as a result of this conclusion, in respect of the 20% worsening of the impairment.
decision
For the above reasons, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and in substitution therefor decides that:
(a)the applicant is entitled to compensation pursuant to sections 24 and 27 in accordance with these reasons; and
(b)the matter be remitted to the respondent for the calculation of the compensation payable.
The Tribunal, pursuant to section 67 of the Safety, Rehabilitation and Compensation Act 1988, orders that the respondent pay the applicant's costs. In the absence of agreement between the parties, costs are to be taxed by a District Registrar or Deputy District Registrar and liberty to apply is reserved to both parties.

I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE and Dr J.T.B. Linn (Member)
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  28, 29, 30 & 31 May 2001
Date of Decision  20 July 2001
Counsel for the Applicant        Mr G. Britton
Solicitor for the Applicant         Ryan Carlisle Thomas
Counsel for the Respondent    Mr J. Wallace
Solicitor for the Respondent    Sparke Helmore

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Citations

Maida and Comcare [2001] AATA 663

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Blackman v Australian Telecommunications Corporation [1990] FCA 295

Singh v The Commonwealth [2004] HCA 43