McDonald and Comcare
[2010] AATA 635
•19 August 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 635
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2009/5194
GENERAL ADMINISTRATIVE DIVISION )
ReSue McDonald
Applicant
And Comcare
Respondent
DECISION
TribunalMr RP Handley, Deputy President
Date19 August 2010
PlaceSydney
DecisionFor the reasons given orally at the hearing, the decision under review is affirmed.
.....................[sgd].....................
Mr RP Handley
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employees – injury and impairment – whole person impairment – application of Canute v Comcare – injury to right shoulder and injury right elbow separate injuries – separate injuries do not reach threshold for whole person impairment – claim for compensation cannot succeed
RELEVANT ACT
Safety, Rehabilitation and Compensation Act 1988 (Cth): ss 14, 24, 27
CITATIONS
Canute v Comcare (2006) 226 CLR 535; (2006) 91 ALD 552; (2006) 229 ALR 445; (2006) 80 ALJR 1578; [2006] HCA 47
Dib and Comcare [2008] AATA 739
Comcare v Roser (2003) 127 FCR 155; (2003) 36 AAR 534; [2003] FCA 243
Fellowes v Military Rehabilitation and Compensation Commission (2009) 240 CLR 28; (2009) 111 ALD 1; (2009) 259 ALR 416; (2009) 83 ALJR 1113; [2009] HCA 38
OTHER AUTHORITIES
Comcare Guide to the Assessment of the Degree of Permanent Impairment (2nd ed, 2006)
REASONS FOR DECISION
| 24 August 2010 | Mr RP Handley, Deputy President |
| background |
Ms McDonald has been employed by the Australian Taxation Office (ATO) since 2000 in its Audit Section. On 19 August 2005, on her way home from work, she fell on the stairs at Thirroul Railway Station, as a result of which she fractured her right elbow and right clavicle. She lodged a claim for workers compensation and liability was accepted by Comcare under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) on 28 September 2005.
On 22 October 2008, Dr Richard Deveridge, orthopaedic surgeon, for the applicant, assessed Ms McDonald as having a 6 per cent whole person impairment (WPI) in respect of her right shoulder joint and a four per cent WPI in respect of her right elbow under Tables 9.11 and 9.10 respectively of the Guide to the Assessment of the Degree of Permanent Impairment (2nd ed, 2006) (the Guide). According to the Combined Values Chart in Appendix 1, this gave a WPI of 10 per cent.
On 20 November 2008, the applicant lodged a claim for compensation for permanent impairment of 10 per cent under s 24 of the SRC Act and for resultant non-economic loss under s 27.
On 18 March 2009, Dr David Macauley, rheumatologist, for the respondent, assessed Ms McDonald as having a four per cent WPI in respect of her right shoulder and a three per cent WPI in respect of her right elbow, under Tables 9.11 and 9.10 respectively of the Guide.
On 14 April 2009, a delegate of Comcare refused Ms McDonald's claim for compensation for permanent impairment pursuant to s 24(7) of the SRC Act because each of the two injuries had a degree of permanent impairment of less than 10 per cent. Ms McDonald sought a reconsideration of this decision. On 2 September 2009, a different delegate affirmed the decision. Both delegates relied on the High Court decision in Canute v Comcare (2006) 226 CLR 535; (2006) 91 ALD 552; (2006) 229 ALR 445; (2006) 80 ALJR 1578; [2006] HCA 47 (Canute). On 30 October 2009, Ms McDonald applied to the Tribunal for a review of this decision.
the interlocutory issue
Comcare has raised as an interlocutory issue whether the applicant’s contention that the WPIs for the two injuries should be combined is inconsistent with the High Court’s decision in Canute.
legislation
Section 24 of the SRC Act provides relevantly:
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.
(7A) …
(8)…
(9)For the purposes of this section, the maximum amount is $80,000.
submissions
Mr Mrsic, for the applicant, noted that in Canute, the two injuries in question – one physical, a back condition, and one psychological, an adjustment disorder – were easy to distinguish. What the High Court did not determine was how to determine the boundary between one injury and another where the injuries are of a similar kind – affecting the same region of the body or being of the same functional unit.
Mr Mrsic referred the Tribunal to the decision in Dib and Comcare [2008] AATA 739 (Dib), which was a case involving injuries to different parts of the spine. The applicant characterised this as being a single injury to one bodily structure and considered that impairments assessed for the different parts of the spine should be combined. Comcare argued there were two separate injuries to the spine, neither of which reached the 10 per cent WPI threshold, a position with which the Tribunal agreed. Mr Mrsic contended that the decision was wrongly decided. The proper approach should be one of dividing the body into functional units and for impairments assessed to related parts of a functional unit to be combined.
Mr Mrsic pointed to the Guide, for example, the Introduction to Part II, dealing with the upper extremities, which refers to combining assessments to each region in the upper extremity. In this instance, the elbow and shoulder are part of the same functional unit and the assessments should therefore be combined.
Mr Dubé, for the respondent, noted that the High Court decision in Canute was decided in September 2006, after the 2nd ed of the Guide was published in early 2006. The effect of Canute was to completely change the way in which WPI is assessed. Thus, parts of the Guide are inconsistent with Canute.
Mr Dubé emphasised that the Guide is about assessing impairment, as the High Court recognised in Fellowes v Military Rehabilitation and Compensation Commission (2009) 240 CLR 28 (Fellowes), at [20]. It is not about identifying relevant injuries.
Mr Dubé drew attention to the injuries under consideration in this matter, identified by both Dr Deveridge and Dr Macauley in their reports. One injury is to Ms McDonald’s right clavicle (collar bone) and the other to her right elbow. Mr Dubé contended that in accordance with Canute, these should be identified as separate injuries occurring as a result of the accident suffered by Ms McDonald.
Mr Dubé observed that in Canute, at [39], the High Court said that it is not of any relevance to the proper construction of the SRC Act that an approach requiring the identification of separate injuries operates to the advantage of one applicant and to the disadvantage of another. This had also been recognised previously by Spender J in Comcare v Roser (2003) 127 FCR 155, at [45].
With regard to the decision in Dib, Mr Dubé noted that the Tribunal concluded that there were two separate injuries and that the WPIs could not be combined. Nevertheless, the facts of the present matter are, in any event, distinguishable from Dib, because Ms McDonald suffered two separate fractures that occurred independently of one another.
consideration
In Canute, at [10], the High Court emphasised that under s 14 of the SRC Act, the obligation to pay compensation to an employee is in respect of an injury, rather than an impairment. The word ‘injury’ is not used in the SRC Act in the sense of a workplace accident. The word ‘injury’ is also not used in the global sense to describe the general condition of an employee following an incident. It has a more specific meaning, being “the resultant effect of an incident or ailment upon the employee’s body”. (See also the High Court decision in Fellowes, which affirmed the approach adopted in Canute.)
The consequence of this is that an accident or incident may give rise to more than one injury. Then, in respect of each injury, s 24(5) of the SRC Act requires Comcare to assess the degree of permanent impairment resulting from an injury under to the provisions of the Guide. In Canute, at [14], the High Court said:
… 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’.
This was also emphasised by the High Court in Fellowes, at [20].
In Canute, at [14], the High Court recognised the effect of its approach in terms of the s 24(7) threshold providing that where the degree of permanent impairment for an injury is less than 10 per cent, compensation is not payable to the employee.
I understand the point made by Mr Mrsic that for the purposes of assessing compensation payable, one should be able to distinguish between related injuries to the same bodily structure or functional unit, and injuries to different bodily structures or functional units. However, in my view, I am bound to follow the approach identified in Canute, confirmed in Fellowes and followed in other matters. As Mr Dubé pointed out, the courts recognise that this approach may advantage an applicant in one matter, and disadvantage an applicant in another matter.
I am satisfied from the medical evidence before the Tribunal that in Ms McDonald’s case, there were two separate injuries – one to the right clavicle and one to the right elbow – and that, in accordance with the approach in Canute, these must be separately assessed. Thus, if one accepts the impairment assessment made by Dr Deveridge on which the applicant relies – of six per cent in respect of the right shoulder joint and four per cent in respect of the right elbow, this falls below the 10 per cent threshold required for compensation to be payable in respect of each injury under s 24(7) of the SRC Act. Thus, the applicant’s claim for compensation for permanent impairment under s 24 and for non-economic loss under s 27 cannot succeed.
decision
The decision under review must therefore be affirmed.
I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President.
Signed: ……[sgd]…..................................................................
Associate
Date of Hearing: 19 August 2010
Date of Oral Decision: 19 August 2010
Date of Written Reasons 24 August 2010
Applicant representative: Ms M Pacheco, Kells the Lawyers
Applicant counsel: Mr J Mrsic
Respondent representative: Ms E O’Connor, Sparke Helmore
Respondent counsel: Mr B Dubé
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