Moorhead and Comcare - [2002] AATA 106

DECISION AND REASONS FOR DECISION [2002] AATA 106

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W2000/114

GENERAL ADMINISTRATIVE DIVISION       )
           Re      JOAN AGATHA MOORHEAD
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal S P Estcourt QC., (Deputy President) Dr H A D Weerasooriya (Part-time Member)

Date20 February 2002
PlacePerth

Decision      The Tribunal affirms the decision under review.
  [Sgd S P Estcourt QC)
  Deputy President
CATCHWORDS
Workers' compensation – Commonwealth employees compensation – compensation for permanent impairment - back injury while 1971 Act in force – whether permanent impairment occurred before or after commencement of 1988 Act – entitlement to sum lump.
Compensation (Commonwealth Government Employees) Act 1971
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss.24, 27 and 124
Comcare v West (1998) 156 ALR at 669
Blackman v Australian Telecommunications Corp (1990) 12 AAR 11
Brennan v Comcare (1994) 50 FCR 555
Hull v Thompson [2001] NSWCA 359

REASONS FOR DECISION

20 February 2002 S P Estcourt QC., (Deputy President) Dr H A D Weerasooriya (Part-time Member)

This is an application for the review of a decision of Comcare of 2 March 2000 determining that the applicant's compensable back condition did not attract a lump sum payment under ss.24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") as that impairment had become permanent prior to the relevant date of 1 December 1988.
Section 124(3) of the Act precludes entitlement to compensation in respect of a permanent impairment that occurred before 1 December 1988 where a person was not entitled to receive lump sum compensation in respect of such impairment under the relevant legislation which was operative when that permanent impairment occurred. The applicant was not entitled to lump sum compensation in respect of impairment of the spine under the predecessor to the Act, namely the Compensation (Commonwealth Government Employees) Act 1971.
The present state of the authorities in this area can be summarised as follows:

the gradual worsening of a permanent impairment in accordance with its natural progress does not constitute a series of new impairments each giving rise to a separate liability to pay compensation (Blackman v Australian Telecommunications Corporation (1990) 12 AAR 11 at 14 and Brennan v Comcare (1994) 50 FCR 555 at 570-571 per Gummow J);
the loss of the entitlement conferred under ss24 and 27 of the Act by reason of s124(3) only occurs when the permanent impairment the subject of the decision is the permanent impairment that the employee suffered as at 1 December 1988, and accordingly where a change in permanent impairment occurring after that date is such that "quantitatively and qualitatively", it is properly to be characterised as a further or new impairment it is compensable by a lump sum (Comcare v West (1998) 156 ALR at 669 per Merkel J).

The Tribunal finds the following facts on the basis of the uncontradicted evidence-in-chief of the applicant.
The applicant, who was born on 28 September 1932 had, since 1981 worked on a casual basis for the Department of the Army as a kitchenhand/mess orderly at army camps ranging in duration from 2 to 4 weeks and occurring 4 to 5 times per year.
On 18 May 1985 just after 11.00 am the applicant slipped on cooking oil which had leaked from a deep fryer and fell on her buttocks and lower back experiencing severe pain.
Shortly after her fall the applicant attended an army medical assistant who recorded that she was then having pain in her left buttock and in her leg to her ankle. He dispensed Metsal and Panadeine.
This incident occurred about half way through the camp and the applicant continued to work there for about a week and a half. She had "slight pain", but that did not incapacitate her for her duties, although her workmates helped her lift heavy items.
A couple of weeks or so after returning from the camp to her home the applicant to her doctor's surgery and was given "pain killers and anti-inflammatories".
The applicant thereafter continued to work at army camps approximately 4 to 5 times per year until about 1991. She carried out her normal duties and whilst "intermittently" she would have "a bit of slight pain" that did not stop her from doing what she "wanted to do or needed to do". She did not notice a change in that pattern until 1990 when she noted intermittent pain in her back which became more frequent and more severe until towards the end of 1990 when she experienced severe pain that caused her to "stay where (she) was for nearly a couple of hours".
After that episode of severe pain when the applicant could not move at all she was referred for x-rays, she "deteriorated quite badly", she had severe pain from time to time and was advised to give up her work. She worked at her last army camp between 6 and 21 April 1991.
The Tribunal further finds that the applicant was referred by her general medical practitioner, Dr M Oehlers, to a solicitor in about August 1991.
In a letter written by Dr Oehlers to the applicant's then solicitor dated 6 August 1991, Dr Oehlers wrote, inter alia:
"She was seen by a Doctor at the Army base and I include a photocopy of the Doctor's report. She presented to the surgery some two weeks later, complaining of aches and pains in her back amongst other things. At that stage she was being treated for Hodgkins disease, which obviously took precedence over any other aches and pains.
Over the years she has raised the subject of aches and pains, though in a secondary sort of nature and she has been treated with analgesics and anti-inflammatory drugs. In September of 1987 she presented with ulcer symptoms. A barium meal indicated a duodenal ulcer and this is probably a result of the anti-inflammatory treatment. This treatment was obviously ceased.
More recently her aches and pains have come to the fore, with recurring visits relative to her backache. In December 1990, Dr Miller organised x-rays of the spine and I will include copies of all x-ray reports. In April of 1991 I ordered a CT scan of her lumbar spine and this has indicated facet joint problems at L5, S1 …".
(Emphasis added)
On 21 November 1991, Dr Oehlers again wrote to the applicant's then solicitor. In that letter he wrote, inter alia:
"I feel that her condition basically is static as it is now five years old … ". (Emphasis added)
In a further letter to the applicant's then solicitor dated 8 February 1996, Dr Oehlers wrote, inter alia:
"The date of her accident was 19th May 1985 and there is no doubt that quite a number of consults took place soon after this initial consult with regards to her back problem. I thus reiterate that I saw this lady within two weeks of her back injury and attended to her from that time onwards. At that stage, she was complaining of back pain, with radiation of pain to her left leg. She had a number of consults with myself and Dr Miller and x-rays were done.
She was treated in the usual manner with analgesics and anti-inflammatory drugs. Physiotherapy was not order until 1990 when she obviously underwent an aggravation of her pains." (Emphasis added)
The Tribunal places considerable weight on these three letters written by Dr Oehlers and prefers this evidence as to the applicant's presentation and treatment between 1985 and 1991 to any other evidence.
The Tribunal does so because the letters are all consistent with each other as well as consistent with the tenor of the applicant's evidence-in-chief. Moreover, the first two letters were written by the applicant's own general practitioner at the very outset of the medico-legal process and are therefore quite unlikely to be tendentious with respect to what has become an important issue in this application, namely whether the applicant's spinal impairment became permanent before or after 1 December 1988.
The Tribunal finds on the basis of the foregoing evidence that the applicant suffered back pain from the time of her original injury significant enough to warrant quite a number of medical consultations and to require treatment with analgesics and anti inflammatory drugs, (at the very least in and around September 1987), and that her pain worsened first in 1990 when x-rays and physiotherapy was ordered and again in April 1991 when a CT scan was ordered and she was advised to give up work.
The Tribunal further finds on the basis of this evidence that the functional consequence of the applicant's fall was trauma to the L5/S1 joint complex which caused ongoing pain requiring medical treatment, which pain thereafter increased in severity in 1990 and 1991 until the applicant was incapacitated for her work.
In the Tribunal's view ongoing pain resulting from the trauma to the L5/S1 joint complex was more likely to have been of indefinite duration prior to 1 December 1988 than, prior to that date, to have been foreseen as likely to terminate or resolve.
This view is supported not only by Dr Oehler's letter of 21 November 1991, but is demonstrated quite plainly by the unchallenged, uncontradicted and quite specific evidence of Professor Galton-Fenzi, in a report of 12 December 2000. In that report Professor Galton-Fenzi wrote, inter alia:
"On the balance of probability therefore, given her age and noting the early degenerative changes that were present at that time (when looking at the 1990 x-rays), then permanency would probably have become established within eighteen months to three years following the 1985 event. Clearly in retrospect the permanency would have been established from the date of the accident, given that she continues with her ongoing low back pain, which to some degree was contributed to by the heavy fall that she received in 1985 … I believe that the extent of her current back problems arising as a result of her injury in 1985 is minimal. The active degenerative changes that she currently has will be the major contributor to her symptoms." (Emphasis added)
Professor Galton-Fenzi's report, whilst apparently a report sought by the applicant's solicitors, was tendered by the respondent's counsel without any objection by the applicant's counsel and without Professor Galton-Fenzi being called, much less cross-examined. In those circumstances, there being ex facie, no illogicality, inherent inconsistency or inaccuracy in the report there is no basis for the Tribunal not to accept the unchallenged evidence of Professor Galton-Fenzi in this regard (see Hull v Thompson [2001] NSWCA 359, 15/10/2001).
The Tribunal finds therefore that the applicant, as a result of her fall in May 1985, suffered an impairment to her spine, which on the uncontradicted evidence of Professor Galton-Fenzi, was a permanent impairment, at the earliest from the date of the accident and at the latest by May 1988.
It remains however to consider whether the permanent impairment now the subject of the applicant's claim for a lump sum payment is the same impairment as the pre-1 December 1988 permanent impairment or, a further or new impairment.
There is nothing in any of the evidence of the experts whose opinions were tendered to the Tribunal which satisfies it that, "quantitatively and qualitatively" the applicant's present impairment is properly to be characterised as involving a further or new impairment occurring after 1 December 1988.
There is of course the applicant's own evidence and the record of her medical history which shows a very significant worsening of her back pain in 1990 and 1991 and beyond, but that evidence is equally consistent with a gradual worsening of the permanent impairment suffered prior to 1 December 1988 in accordance with its natural progress as it is with a properly characterised further or new impairment.
This conclusion is reinforced by the fact that the evidence discloses that radiological examinations of the applicant's spine demonstrate not only a process of degenerative change at the level of the L5/S1 joint complex, (being the level argued and accepted as that traumatised by her fall), but multi-level degenerative changes of the thoracic and lumbar spine, the pathology of which, in the absence of any evidence of trauma to any level other than L5/S1, may be inferred as a naturally occurring progressive disease.
Indeed it is appropriate, in view of the evidence of the non-work injury related multi-level degenerative changes in the applicant's spine at levels other than L5/S1, to note that the Tribunal is in a similar situation to the Tribunal in the case of Comcare v West (supra). That is to say, that the Tribunal is really unable, on the material before it, to identify the nature and extent of any change in the permanent impairment caused by the original trauma to the separate level of the L5/S1 joint complex, which change might have occurred post 1 December 1988.
In the Tribunal's view the effect of s124(3) of the Act, when applied to these findings as to the applicant's permanent impairment in accordance with the principles expounded in Brennan v Comcare (supra) and Comcare v West (supra), is to preclude any entitlement to compensation pursuant to ss24 and 27.
Accordingly, the decision of the Tribunal is that the decision under review is affirmed.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of S P Estcourt QC., (Deputy President)
Dr H A D Weerasooriya (Part-time Member)
Signed: K L Miller (Personal Assistant)
Date/s of Hearing  3 September 2001, 30 October 2001
Date of Decision  20 February 2002
Counsel for the Applicant        Ms Y Henderson
Solicitor for the Applicant         Gibson and Gibson
Counsel for the Respondent    Mr J R Wallace
Solicitor for the Respondent    Downings Legal