Morgan and Comcare
[2004] AATA 152
•16 February 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 152
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2000/410
GENERAL ADMINISTRATIVE DIVISION ) Re GREGORY BRIAN MORGAN Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr Murray Allen, Member Date16 February 2004
PlacePerth
Decision The decision of the Tribunal is that: 1. The reviewable decision made on 6 September 2000 by a delegate of the respondent is set aside.
2. The Tribunal remits the matter to the respondent for the purpose of calculating the compensation payable to the applicant with a direction that the applicant has a degree of permanent impairment of the cardiovascular system under Table 1.3 of 30%.
3. The respondent shall pay the costs of the proceedings incurred by the applicant to the determined in accordance with the Tribunal's General Practice Direction.
...............(sgd. M Allen)....................
Member
CATCHWORDS
COMPENSATION – Commonwealth Government employees compensation – permanent impairment of the cardiovascular system – deep vein thrombosis – degree of permanent impairment under Table 1.3 of the Guide – consideration of meaning of “continuous treatment” – consideration of meaning of “periodic confinement to residence” – applicant does require continuous treatment including periodic confinement to residence – degree of impairment assessed as 30% - previous determination of permanent impairment was an interim determination and not a final determination – decision under review set aside - matter remitted to respondent to calculate compensation payable
Safety, Rehabilitation and Compensation Act, 1988 (C’wlth) ss 24, 25, 27, 28, 67, 72
Transport Accident Act 1986 (Vic)
Guide to the Assessment of the Degree of Permanent Impairment, Table 1.3
Thiele v Commonwealth (1990) 22 FCR 342
Comcare v Watson [1997] 149 FCA, (1997) 24 AAR516Comcare v Mihajovic (2000) 97 FCR 304
Commonwealth v For (1986) 65 ALR 323
State Trustees (as guardian of Colin Dickinson) v Transport Accident Commission [2002] VSC 428. (2002) 19 VAR 462
Hurren v Hurren [1971] VR 459REASONS FOR DECISION
16 February 2004 Mr Murray Allen, Member 1. In these proceedings the applicant, Mr Gregory Morgan, seeks review of a decision made by a delegate of the respondent on 6 September 2000 to affirm a determination made on 17 February 2000 by which a claim for permanent impairment in respect of deep venous thrombosis (DVT) was denied.
2. At the hearing of the matter, the applicant was represented by Ms Crawford of counsel and the respondent was represented by Mr Kelly of counsel.
3. The Tribunal had before it the documents filed pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (T1-T292). The Tribunal received into evidence Exhibits A1 to A4 tendered on behalf of the applicant and R1 to R5 tendered on behalf of the respondent. Oral evidence was given at the hearing by the applicant and a number of medical practitioners.
4. The background to the matter and the applicant’s medical history goes back to 1981 and the following is a summary of only a part of it.
5. The applicant, who was aged 44 at the time of the hearing, suffered an injury to his right foot at work in January 1981 and a claim under the Safety, Rehabilitation & Compensation Act 1988 (“the Act”) for compensation in respect of that injury was accepted by the respondent. Subsequently, up until March 1994, the respondent had accepted liability to pay compensation to the applicant for injuries to the right foot and a subsequent staph aureus infection that had resulted in the amputation of the applicant’s left ring finger.
6. In March 1995 the applicant made a claim for compensation for permanent impairment involving the right ankle, depression and loss of the left ring finger. A further claim for further impairment in respect of the ankle and hand was made in August 1995.
7. In August 1996 the respondent paid to the applicant compensation pursuant to ss 24 and 27 of the Act totalling $53,469.28 representing an impairment of 15% in respect of the right ankle under Table 9.2 of the Approved Guide and 10% in respect of the left ring finger under Table 9.3 of that Guide. Whether or not that payment was by way of interim determination or final determination is a matter that arises for consideration in these proceedings.
8. In August 1998 the applicant made a claim for permanent injury (T232) describing the permanent impairment as “extensively thrombosed great vessels” and noting that compensation for permanent impairment had previously been awarded and that the claim was for an increase in the impairment. The applicant’s general practitioner, Dr Savage, completed part of the claim form, noting his diagnosis of the applicant’s current condition as “severe bilateral deep vein thrombosis” and his assessment of the extent of the impairment as “50% as per Table 1.3”.
9. By a letter dated 17 February 2000 (T272) the respondent informed the applicant that a number of errors had been made in the determination that had resulted in the payment to the applicant in August 1996 (although the respondent did not intend to recover the overpayments) and that a determination had been made that the applicant’s condition did not satisfy that part of Table 1.3 relating to a 30% permanent impairment because “you do not receive continuous treatment for the condition, and do not require admission to a hospital, or confinement to residence because of the condition”.
10. Document T289 sets out the reasons for the decision made on 6 September 2000 to affirm the earlier determination. The delegate considered the matter in terms of whether the applicant’s impairment satisfied the criteria for a 30% impairment under Table 1.3 and concluded that the criteria were not satisfied because”
“First, there is no need for ‘continuous treatment including periodic admission to a hospital’. Secondly, although the employee is confined pretty much to his residence, it is the opinion of Dr Golledge that the need for that confinement is a combination of the DVT and the chronic hand infection with the associated narcotic dependence. (It is noted the employee has already received compensation in relation to a 10% impairment of the left ring finger).”
The Legislative Framework
11. It is not in dispute that the respondent is liable to pay compensation to the applicant in accordance with the provisions of the Act, including for permanent impairment of the cardiovascular system pursuant to s24 of the Act and for non-economic loss pursuant to s27 of the Act. The amount of compensation to be paid under s24 depends upon the degree of permanent impairment of the applicant and s24(5) of the Act requires the degree of permanent impairment to be determined under the provisions of the Approved Guide that the respondent is to prepare pursuant to s28 of the Act (“the Guide”).
12. The parties agreed that Table 1.3 of the Guide (which deals with cardiovascular system generally and varicose veins, DVT, oedema, and ulceration specifically) is the applicable Table.
13. The respondent does not dispute that the applicant suffers from DVT for the purposes of assessment under Table 1.3 and the central issue for determination in the proceedings is the appropriate level of impairment suffered by the applicant by reason of his DVT as assessed in accordance with the various levels of impairment contained in Table 1.3. I pause at this point to note that the assessments of impairment made by the various medical practitioners prior to the hearing differed substantially. Dr Stevenson’s assessment was 0%, Dr Baker 10%, Dr Golledge 30%, Professor Harper between 30 and 40%, and Dr Levitt 50%.
14. A second issue, which the parties described as a subsidiary one, also arises. That issue is whether or not the applicant must gain an increase in the degree of assessed permanent impairment of 10% or more by virtue of the operation of s25(4) of the Act. Section 25 deals with the ability of Comcare to make an interim determination of permanent impairment as a result of an injury and an interim payment of compensation for permanent impairment under s24. Sub-section 25(3) provides that where an interim determination and payment have been made and a final determination is subsequently made, then Comcare must pay to the employee the difference between the amount payable under the final determination and the amount previously paid under the interim determination.
15. Sub-section 25(4) provides that “where Comcare has made a final assessment of the degree of permanent impairment of an employee (other than a hearing loss), no further amounts of compensation shall be payable to the employee in respect of a subsequent increase in the degree of impairment, unless the increase is 10% or more”. Whether or not s 25(4) is applicable to the applicant depends upon whether a final determination has already been made and whether any increase in the applicant’s impairment is 10% or more (see para 7 above).
The Table 1.3 Assessment
16. In the written submissions filed on behalf of the applicant after the hearing it was contended that the appropriate level of whole person impairment for the purposes of Table 1.3 was the 30% level, rather than some higher percentage.
17. The respondent, in its written submissions, thought that that position or concession by the applicant may not have been an unqualified one and therefore made submissions regarding the 40%, 50% and 60% levels of impairment. I did not understand the applicant’s contention that the 30% level was the appropriate one to be unqualified but, in any event, the higher levels of impairment can be dealt with briefly. The 60% level of impairment requires that a person have any two of three specified conditions, namely severe bilateral DVT; marked oedema that cannot be controlled; and severe ulceration. It was not in dispute that the applicant, although he had once had bilateral DVT, did not now. Nor was it in dispute that the applicant did not suffer from ulceration. Finally, in the applicant’s final submissions it was not contended that the oedema suffered by the applicant was marked as distinct from mild. Accordingly, the requirements for a 60% impairment are not satisfied.
18. For a 50% impairment Table 1.3 requires a person to have a severe bilateral DVT and it is not in dispute that the applicant does not. Accordingly, a 50% impairment is not appropriate.
19. A 40% impairment requires a person to have any two of the following three conditions, namely DVT; oedema that is marked and only partly controlled by elastic support or medication; and ulceration that is persistent, wide spread or deep. For the reasons mentioned above the applicant does not have ulceration or marked oedema. Although he does have DVT, his condition cannot satisfy a 40% classification.
20. As noted above, the applicant’s principal contention is that his condition satisfies the requirements for a 30% impairment under Table 1.3. That classification requires a person to have:
“any one of the following which requires continuous treatment including periodic admission to hospital or confinement to residence:
· deep venous thrombosis
· oedema – marked and only partly controlled by elastic support or medication
· ulceration – persistent, wide spread or deep.”
21. As noted above, it was not in dispute that the applicant did suffer from DVT but did not have marked oedema or ulceration. Accordingly, the applicant would satisfy the 30% impairment category only if his DVT needs continuous treatment including periodic admission to hospital or confinement to residence. These issues were the ones in contention in the proceedings.
22. I turn then to consider the evidence concerning the applicant’s conditions and how they are managed.
The Applicant
23. In a statement of evidence filed prior to the hearing of the proceedings and in his oral evidence the applicant described how his condition has required him to modify his lifestyle dramatically, specifically in terms of what physical activity he can undertake and the effects of any activity. He is constantly aware that even minor tasks or minor physical activity aggravates swelling to the left side of his body, specifically the left arm and shoulder, chest area, and face and neck. There is some swelling to the right side of the body but not to the same extent as on the left. The swelling is accompanied by pain and discomfort and a general crushing sensation in the chest. When that occurs he has to stop what he is doing and rest – sometimes for several hours but on occasions for a couple of days. He has to keep himself upright and raise his left arm to increase gravity drainage from the upper part of his body. The same pain and discomfort arises when he tries to lie horizontally in bed. On those nights when he is able to sleep in his bed he would often have to hold his left arm up for considerable periods and get up several times during the night to increase drainage.
24. On those days on which he undertaken some degree of physical activity, he can recognise that it would be pointless to try to sleep in his bed and he would normally sleep in an upright position on a reclining chair.
25. As little as 10 or 15 minutes of physical activity can generate extreme sweating and exhaustion and require him to stop whatever activity he is undertaking. Mowing a relatively small area of lawn requires at least two sessions and when he tried to repaint his daughter’s bedroom it had taken many days of work in periods of 10 or 15 minutes or a little more. The degree of swelling and pain is proportional to the level of activity that he tries to undertake.
26. He is able to drive a motor vehicle and drives himself to see his general practitioner about once a month and occasionally drives to the local shops (about once a week). He is able to park a few metres from the shop so this doesn’t require considerable activity.
27. He takes prescribed pain-killing medication every day. He very occasionally visits family or friends or takes other outings. In the year 2000 he had taken a short holiday in Bunbury and had considered travelling to Queensland for a 10 day holiday with his wife and daughter, but in the end he did not go on that trip.
28. The applicant acknowledges that he suffers from depression and that he has a fear about having accidents and getting infections. These are factors in his limited preparedness to spend more time away from his home.
Dr Golledge
29. Dr Golledge was called to give evidence by the applicant. He is a consultant of 13 years’ standing and is a member of the Royal College of Physicians, a Fellow of the Royal College of Pathologists of Australasia and a Fellow of the Australasian College of Tropical Medicine. He is the Director of the Division of Microbiology and Infectious Diseases at the Western Australian Centre for Pathology and Medical Research.
30. Dr Golledge first saw the applicant in mid 1997 and treated him for more than two years. Initially the treatment related to the applicant’s infected hand and, because of problems with restricted access to peripheral and central veins, a very difficult Hickman Line was inserted into the applicant’s right internal jugular vein. The Hickman Line had itself become infected and eventually tests revealed, in November 1997, that the applicant had bilateral DVT. Subsequently, in 2001, further tests revealed that the right side thrombosis had recannulised but the left side remained extensively thrombosed.
31. In a report prepared in May 1999 Dr Golledge referred to the thrombosis of the great vessels of the head and neck and assessed the applicant’s impairment by reference to Table 1.3 as 30%.
32. In his oral evidence, which Dr Golledge qualified to some extent by saying that he had not seen the applicant for some time, Dr Golledge said that the residual oedema that the applicant experienced would be relieved by sitting upright but that, when he became dependent, the oedema would worsen and would result in shortness of breath, swelling of the face and worsening swelling of the arm, so that the applicant would not be able to sleep in a supine position and would have to sleep upright. He said that was consistent with the degree of thrombosis of the great vessel on the applicant’s left side.
33. Dr Golledge agreed with the view (expressed by Dr Baker) that there is no active treatment that would relieve the obstruction or reverse the degree of thrombosis that was present in the applicant’s cardiovascular system. Gravity drainage and reduced upper limb activity would alleviate symptoms but would not take them away completely. Dr Golledge said that, apart from elevating the left arm and sleeping upright, the taking of medication for pain as a consequence of swelling would also be included in the category of treatment to address the symptoms of the DVT – although Dr Golledge said that the existence of the applicant’s chronically infected hand made it difficult to determine how much pain came from the hand, how much came from the swelling of the arm, or a combination of both.
34. Dr Golledge did not doubt that there was a degree of pain relating to the applicant’s dual pathology in his left arm and his impression, when he had last seen the applicant, was that the pain was a combination of both. He described it as a more localised pain from the chronic infection in the left hand and a more generalised dependent type of pain from the swelling of his upper arm.
35. Dr Golledge said that he thought that no one would disagree that the left arm and face swelling experienced by the applicant is caused by occlusion of the vessels and the fact that the collateral blood flow that has developed is not as efficient at returning blood via the venous system as it would be had the veins not been thrombosed.
36. In relation to Table 1.3 Dr Golledge was asked what he had in mind in terms of the kind of treatment that might be referable to the applicant’s condition. He said that this was principally the need to sleep in an upright position and to hold the hand in a dependent gravity position so that the oedema was not exacerbated. He said that:
“this treatment is really a considerable lifestyle modification rather than an active drug treatment or wearing of a compression bandage which would not be efficient in the upper limb. .... so my feeling was that the continuous treatment was related to continuous lifestyle modification and the need to adapt and change one’s lifestyle to be able to tolerate the pain and the oedema that has resulted as a consequence of the chronic thrombosis.”
37. In cross examination Dr Golledge stated that the applicant’s reduced mobility may be more likely to be due to the ankle fusion he had undergone than the vascular problems and that as a general rule thrombosis affecting the upper limbs should not reduce mobility. He said that the vascular problems may well confine the applicant to his residence if he genuinely can’t use his left arm and experiences considerable pain, but noted that he could not be clear about this point because it was sometime since he had seen the applicant.
Dr Levitt
38. Dr Levitt has been the applicant’s general practitioner for some years. He initially saw the applicant about every two weeks but now sees him about once a month. He prescribes three forms of analgesic medication for pain relief. The symptoms relating to his DVT that the applicant has described to Dr Levitt are pain and swelling to his left side and arm, and neck and face, which are provoked by increased physical activity or lying flat. He also has symptoms relating to the chronic pain and discharge from his infected hand, as well as emotional stress and strain due to loss of self confidence and self esteem. Dr Levitt said that he was not particularly involved in the long term management of the DVT condition. Rather, his focus was on trying to establish a relationship with the applicant that will enable him to make a contribution to his overall health and well being.
39. Dr Levitt said he considered that a 50% impairment under Table 1.3 was appropriate because the applicant in fact had had bilateral deep vein thrombosis and was subject to long periods of confinement to residence. He thought the condition was severe because of the severe impact it has had on the applicant’s quality of life.
40. Dr Levitt said that there was no curative treatment for the DVT condition and the only advice that he was aware of that the applicant had received was to avoid the circumstances that aggravate the symptoms. He was not aware of anything that could fix or alleviate the symptoms other than gravity drainage. His pain was minimised by the analgesics and by avoiding physical exertion involving the upper limb he avoids aggravating the swelling and discomfort.
41. In relation to the degree of discomfort and swelling the applicant experiences when be becomes active, and the degree to which he can move outside his home, Dr Levitt said that:
“I don’t think its like a lock on the gate, on the door and you can’t move around. He can get into a car etc he can come out to see me in the surgery but he can’t do a lot of things so when he comes out to the surgery to see me, I know that as time goes on – the interesting thing in observing him is that the longer I have kept him waiting and the longer I have been with him, he develops some other symptoms which I haven’t mentioned ... he sweats profusely and gets very tired and one can see the distress in simply having come to my surgery. ... just the effort and exercise involved in the limited thing he does in coming to me ... takes its toll.”
42. In relation to the applicant’s current medication, Dr Levitt said that they were prescribed predominantly for the symptoms related to his infected hand, particularly at the beginning of Dr Levitt’s treatment of him, but he understood that it also reduced the pain, tension and discomfort experienced by the applicant as a result of physical activity.
Professor Harper
43. Professor Harper has been a specialist in occupational medicine since 1987 and is a Fellow of the Australasian Faculty of Occupational Medicine. He is an Adjunct Professor in the Division of Health Sciences at Curtin University of Technology.
44. He saw the applicant in 2002 at the request of the applicant’s solicitors and in a report of July 2002 (A2, pages 31-37) he expressed the opinion that “the applicant was totally incapacitated for his pre-accident work as an electrician and that his disabilities precluded him from competing for gainful employment in the open work force. His only prospect for participation in the work force was through part time self employment at home with certain limits.” Professor Harper could see no indication for surgery and thought the applicant required ongoing medical management of his pain, with continuing follow up and treatment by his family doctor on a permanent basis”.
45. In his oral evidence Professor Harper said that the thrombosis had impaired the venous return from the applicant’s head, face and left arm, and that collateral veins, which were previously low in work load or may not have existed, had now become important in returning blood to the heart. The impact of this on the applicant was that his venous system was overloaded with any physical activity - causing congestion and fluid from the blood vessels into the tissues, resulting in swelling in the arm, and discomfort and pain that would prevent the physical activity continuing. The applicant would then need to rest and allow time for adequate venous drainage from the limb.
46. Professor Harper said that when he examined the applicant he did not have oedema, but it was apparent from examination that he had had it in the past. His history was of intermittent swelling according to activity and posture and that “is exactly what one would expect given the vein studies and his physical underlying pathology”. On examination the applicant’s skin on his hand was quite loose and wrinkled, indicating that the hand had been swollen repeatedly and the skin had lost a degree of elasticity – which suggested oedema in the past.
47. Professor Harper said that the narcotic medication taken by the applicant would address the pain and discomfort and did have a role to play in the management of his symptoms. He agreed that there was no anti-coagulant treatment that would be useful and that gravity drainage of the upper limb is reasonable management. He said that “the large part of management is controlling his activities, reducing physical work, pacing himself in any activity he does and posture”.
48. In relation to the applicant’s need to rest after any activity, Professor Harper said that the applicant would need to rest long enough for the dynamics of his circulation to return to normal and for any adverse effects, such as causing fatigue and distress, to dissipate. In relation to whether or not it might take the applicant up to a month on occasions to recover, Professor Harper said he couldn’t say that that was incorrect or reasonable – but normally he would have thought that in normal everyday activities the applicant might need to rest for several hours. This might mean that he could do something on one day and couldn’t return to the same task until the following day, on average.
49. In relation to Table 1.3, Professor Harper said that the applicant’s venous condition would from time to time necessitate him being confined to his home. He said that, in general, his mobility is significantly impeded and he needs to lead a quiet, sedentary existence to accommodate his problem.
50. In cross examination Professor Harper confirmed that the applicant required ongoing medical management of his pain, and that gravity drainage and confinement to residence were definitely part of his management. He said that the applicant would be confined to his residence because of his intolerance of physical activity for the fluid dynamic reasons that he had explained in his evidence, because with activity the applicant aggravates his symptoms. Although, statistically, upper limb DVT is generally asymptomatic, the applicant is a very unique case and his DVT is symptomatic. Although, in the applicant’s case, there are no invasive forms of treatment, the applicant requires ongoing management every day of his life and he needs management all night to see that he doesn’t lie down. The actual care of the applicant is an ongoing, everyday thing and all these things are generally managed best by staying close to home.
Dr Baker
51. Dr Baker is a specialist in clinical haematology with an interest in thrombosis and haemostasis. He is a Clinical Associate Professor at the University of Western Australia and a Director of the Thrombosis and Haemostasis Service at Royal Perth Hospital.
52. He examined the applicant at the request of the respondent’s solicitors on three occasions during 2001 and in a report dated 31 October 2001 (R3) he described the applicant as having “an extremely complex set of circumstances” and confirmed long standing left subclavian and internal jugular thrombosis with collateral vessels. He thought that the applicant’s left arm and face swelling was likely to be caused by a post thrombotic syndrome caused by reduced venous return from his left arm and neck through the collateral vessels. He thought that there was no further anti-coagulant treatment that would be useful to relieve the applicant’s symptoms and that “gravity drainage of his upper limb was reasonable management for his oedema and discomfort. He may experience exacerbation of the upper limbs swelling and pain with increased physical activity because of a reduced capacity to return the increased blood flow through the collateral vessels”. He thought that the upper limb thrombosis should not restrict the applicant’s mobility.
53. In relation to Table 1.3 Dr Baker was uncertain as to which category to place the applicant in. He said that “his main problem is with reduced upper limb and face venous return that may result in mild oedema that required gravity drainage and/or reduced upper limb activity. This is caused by previous but inactive deep vein thrombosis. This description can range from between 10% to 40% level of impairment”.
54. In his oral evidence Dr Baker said that he did not think that the applicant’s DVT condition required continuous treatment including periodic admission to hospital or confinement to residence. He said that for “day to day life without exercising it is conceivable that [the applicant’s] blood flow is adequate and it is only in periods where he would be exercising the upper limb where the blood returned to the heart may not be as good as otherwise”.
55. He could find no physiological reason why the applicant might suffer chest pain or difficulty in breathing as a result of his thrombotic condition. He thought that the applicant’s venous pathology did not account for the chest pain or lower limb discomfort but he thought it was conceivable that the applicant may have episodes of swelling of the upper limb if he used that limb in periods of muscular activity. He thought that gravity generally would be sufficient to provide adequate drainage in most circumstances to the head and neck and upper limb.
56. Dr Baker did not think that there was any kind of management or treatment that would confine the applicant to home for any extended period. He said that it depended on the upper limb activity and relied on drainage for a number of hours, particularly overnight, to relieve any problems in regard to venous return to the upper limb. He was asked whether, if the applicant spent each night sleeping upright, that would be sufficient to enable him to return to some form of activity the following day. Dr Baker’s evidence was that “it would be an extreme example of treatment but I can understand that he may need to do that to relieve his symptoms. If that relieves his symptoms it is plausible”.
57. In relation to how long it might take for any symptoms experienced by the applicant to be relieved by rest, Dr Baker thought that it was conceivable that it might vary from a few hours to a period longer than that. However, he thought it was hard to extend it to a couple of days and that he expected that “at most an overnight elevation of the arm would be more than satisfactory to relieve the symptoms”.. He said that often in this type of situation the pain would pass quickly once the arm was elevated, but the swelling may take some time to go. He accepted that the applicant may on occasions have very mild oedema but he thought that overnight elevation of his upper body would relieve that.
Dr Stevenson
58. Dr Stevenson is a Fellow of the Royal Australasian College of Physicians and a Member of the Royal College of Physicians. He has a specialty in internal medicine and critical care medicine and was for almost 20 years Director or Consultant in Critical Care Medicine in Victoria.
59. He saw the applicant in early 2003 at the request of the respondent. In a report dated 5 February 2003 (R5) Dr Stevenson said that he found low-grade oedema in the upper limb based on measurements. He also observed mild subcutaneous oedema over the left side of the chest and mild facial asymmetry with possible left sided oedema, though subtle.
60. In his report Dr Stevenson said that he did not consider that any treatment was required. There is substantial literature on treatment of chronic DVT but the applicant does not actually require any therapy. He thought that the applicant’s shortness of breath was genuine but anxiety related and there is no need for treatment. He could see no restriction on the applicant’s mobility outside of his house as a result of the DVT.
61. In his oral evidence Dr Stevenson said that he accepted the applicant’s description of his symptoms as genuine and that the applicant had clearly been through “an horrific experience”, but he thought that the degree of DVT which remains is relatively modest and would not be causing the severity of the symptoms, in particular the shortness of breath on lying down. He did not think that the applicant’s DVT required continuous treatment including confinement to home for long periods and people in the applicant’s position should go about their normal life and use the affected limb as much as possible. In general one would discourage confinement to residence.
62. Dr Stevenson did not think that gravity management was a reasonable means of management of the applicant’s condition and he could see no physiological reason why he should need to sleep upright. He did accept, however, that elevating the left arm may relieve pain and swelling but he thought that would not confine the applicant to his home for even short periods of time.
63. Dr Stevenson gave a qualified agreement to the proposition that increased physical activity increased blood flow pressure and might cause oedema – because activity of the arm would also increase muscle activity and venous pump, which is the mechanism for the decrease of oedema. In other words, these were two competing forces and whether they cancel each other out or increase oedema or decrease oedema is something that would be found out by experiment. He did not accept that any increased physical activity by the applicant might lead to swelling and pain which would then require rest because “one does not advise people in chronic pain to rest”. In his opinion the applicant’s history of extensive thrombotic disease had no impact on his capacity for physical activity because, although the applicant has some changes in the left arm, the history of activity avoidance would “seem to be much more likely due to his depression”. He said that if the applicant’s symptoms “are physically based then [the applicant] would have reported substantial decrease in them over the last 4 years because there is enormous difference in the amount of thrombus between 1997 and 2001. So if the symptoms are physically based [the applicant] would have told you that his symptoms are getting substantially better, if he didn’t tell you that then my interpretation is more likely to be corrrect.”
Consideration of the 30% level
64. As noted at [21] above, the applicant will satisfy the 30% level of impairment in Table 1.3 if his DVT requires “continuous treatment including periodic admission to hospital or confinement to residence”.. It is not in dispute that the applicant does not need periodic admission to hospital.
65. The word “treatment” is not defined in either the Act or the Guide, although the Act does contain, in s4(1), extended definitions of the phrases “medical treatment” and “therapeutic treatment” as follows:-
“medical treatment means:
(a) medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or
(b) therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or
(c) dental treatment by, or under the supervision of, a legally qualified dentist; or
(d) therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be; or
(e)an examination, test or analysis carried out on, or in relation to, an employee at the request or direction of a legally qualified medical practitioner or dentist and the provision of a report in respect of such an examination, test or analysis; or
(f) the supply, replacement or repair of an artificial limb or other artificial substitute or of a medical, surgical or other similar aid or appliance; or
(g)treatment and maintenance as a patient at a hospital; or
(h)nursing care, and the provision of medicines, medical and surgical supplies and curative apparatus, whether in a hospital or otherwise; or
(i) any other form of treatment that is prescribed for the purposes of this definition.
"therapeutic treatment" includes an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury.
66. For the purposes of para (i) of the definition of medical treatment, regulation 17 of the Safety, Rehabilitation and Compensation Regulations 2002 prescribed as medical treatment “therapeutic treatment by, or under the supervision of” qualified occupational therapists, optometrists, psychologists and speech therapists.
67. The absence of the adjectives “medical” and “therapeutic” from “treatment” in the Table must be regarded as deliberate. Authorities such as Thiele v Commonwealth (1990) 22 FCR 342 (Hill J) and Comcare v Watson [19970149 FCA (Finn J), which concerned the application of the statutory definitions of medical treatment and therapeutic treatment, must be seen in their particular context. Nevertheless, they can provide some guidance to the meaning to be attributed to the word “treatment” for the purposes of the Guide.
68. Hill J observed in Thiele at [20] that it is possible that a particular activity can constitute treatment notwithstanding that the doing of the act may not be under medical supervision. Finn J in Watson (at 24 AAR 519, 520) cautioned against the view that to a doctor’s positive and active control and management are indispensable elements in treatment. His Honour also noted (at 24 AAR 519) that a course of treatment designed to or aimed at, alleviating the pain caused by an injury or disease is to be regarded as therapeutic treatment.
69. The New Shorter Oxford English Dictionary, 1993, (the OED), relevantly defines “treatment” as “management in the application of medicines, surgery, etc” and “treat” as “to deal with (a disease, patient, etc) in order to relieve or cure.” The American Medical Association (“AMA”) Guides to the Evaluation of Permanent Impairment (4th edition) (“the AMA Guide”) defines treatment as follows:
“The action or manner of treating an individual, medically or surgically. Medical treatment is the action or manner of treating an individual, medically or surgically by a physician. Treatment may include modalities recommended by a health care provider.”
70. The OED relevantly defines “modality” as “a method or technique of treatment, [especially] one not involving drugs.”
71. Finally, the AMA Encyclopedia of Medicine, 1989, defines treatment as:
“Any measure taken to prevent or cure a disease or disorder or to relieve symptoms. Examples include drug treatment, radiation therapy, surgery, and bed rest.”
72. The Macquarie Dictionary defines “continuous” relevantly as “uninterrupted in time, without cessation” but notes that it can be used interchangeably with “continual” in relation to temporal continuity. Continual is defined relevantly as “1. without cessation or intermission; unceasingly ... 2. very often, at regular or frequent intervals; habitually ... “.
73. I do not consider that, in the context of Table 1.3, continuous treatment must mean treatment that never stops. That would not be a reasonable view in my opinion. Rather I consider that the meaning conveyed is of something that occurs very often, at regular or frequent intervals. That is a construction that is available and, in light of the “socially remedial” nature of the legislation (see Thiele at [11]), a construction that advances the purpose of benefiting workers is to be preferred.
74. The applicant sees his general practitioner only about once a month. The medication he is prescribed is not aimed specifically at treating the DVT (in the sense of being anti-coagulant medicine) but I accept the evidence of Dr Levitt, Dr Baker and Professor Harper that it does have a role to play in relieving the applicant’s pain and discomfort caused by physical activity – even though the medication is prescribed primarily for the symptoms related to the infected hand.
75. All the medical witnesses accepted (as do I) that the applicant’s symptoms of pain and swelling were genuine. I also accept the evidence of the applicant that he is obliged to, on a daily basis, actively use gravity drainage of his symptoms, particularly when he has undertaken any physical activity that is out of the ordinary. Doctors Golledge, Harper and Baker accepted that gravity drainage was a reasonable form of management of the symptoms of the applicant’s condition and I prefer their assessment to that of Dr Stevenson on this point. Although Dr Stevenson said that gravity drainage was not a reasonable form of management he did accept that elevating the arm may relieve pain and swelling.
76. In light of the above I consider that the applicant’s regular taking of medication – in part to alleviate pain from the DVT-related symptoms – and the regular management by way of gravity drainage constitute treatment for the purposes of Table 1.3 that occurs at regular and frequent intervals. It is, in my opinion, continuous treatment. I turn then to consider whether that includes periodic confinement to residence.
77. I note at the outset that the 30% level in Table 1.3 refers to “periodic confinement” without any amplification as to what might be expected about the frequency or duration of the confinement. This can be contrasted with the 10%, 15% and 20% levels, which refer to “intermittent treatment” and “short” periods of admission to hospital or confinement to home.
78. In State Trustees (as guardian of Colin Dickinson) v Transport Accident Commission [2002] VSC 428, (2002) 19 VAR 462 Bongiorno J of the Supreme Court of Victoria considered the meaning of the word “confinement” in the AMA Guide for the purposes of the Transport Accident Act 1996 (Vic). The relevant passage of the AMA Guide referred to a condition “… that limits daily activities to directed care under confinement at home or in other domicile”.. His Honour rejected a narrow interpretation of the word that had been adopted in an earlier case, Hurren v Hurren [1971] VR 459. Because of the context of the particular provision, and the beneficial nature of the Transport Accident Act, Bongiorno J considered that confinement does not require uninterrupted presence at the place of confinement nor does it require that it be akin to imprisonment or restraint. An overly legalistic approach to the interpretation of the AMA Guide is to be avoided.
79. The relevant part of the AMA Guide in question in State Trustees concerned persons impaired by disturbances of cerebral functions. In the context of Table 1.3 I consider that the confinement that is contemplated is something that necessitates presence at home without any connotation of compulsion or sense of not being able to leave the residence at times. Confinement to home because of illness is an obvious example.
80. In the light of the view that I have taken about the meaning of “continuous treatment”, I consider that the periodic confinement to residence that the 30% level in Table 1.3 requires is a presence at home that is necessary from time to time, at fairly regular intervals.
81. As to the duration of each confinement, it would have been an easy task for the Guide to contain words such as “short”, “minor”, “extended” or “lengthy” to provide guidance as to how long the confinement should last. That has not happened and I am not prepared to conclude that the use of “short” in the other levels means that the period contemplated in the 30% level must be of a particularly lengthy duration. A overly technical approach to the interpretation of the Act and, I believe, the Guide, is to be avoided (see Commonwealth v Ford (1986) 65 ALR 323 per Wilcox, J and the authorities referred to therein). I consider that the duration of the confinements contemplated may be from several hours to several days, occurring at fairly regular intervals.
82. In the final submissions made on behalf of the respondent it was contended that although “the applicant’s evidence suggests that he is not confined to his residence to the degree he alleges ... that does not necessarily preclude a finding that he is confined to his residence for periods of time or even extended periods. The question for determination is whether such confinement is necessitated by treatment needed as a result of his DVT.”
83. I find on the evidence that the applicant has a reasonable degree of mobility. He is able to drive a car to visit his doctor, go to the shops and on occasional outings, and he is able to undertake some tasks around the house (albeit with difficulty). I accept that any physical limitations on his mobility are more to do with his ankle problems that his DVT and that it is advantageous to him to be as mobile as possible. Further, I find that there are emotional or psychological reasons why the applicant has an attachment to his resident – namely a fear of picking up an infection. To that extent some of the applicant’s confinement to residence may be attributable to factors other than his DVT condition.
84. Nevertheless, I have previously found that the applicant does need to manage the symptoms of his DVT condition by gravity drainage – and that this requires regular sleeping in an upright position and, at times, prolonged periods of rest if any degree of strenuous physical activity is undertaken.
85. No doubt some of the things that the applicant does to alleviate his symptoms could be done outside his home and, in light of the medical evidence, I do not accept the applicant’s evidence that he is frequently required to rest at home for several days at a time. I do, however, find that strenuous physical activity does require rest for several hours, or at times overnight, to relieve the applicant’s symptoms.
86. Bearing in mind the injunction contained in s 72(a) of the Act that determinations under the Act should be made “guided by equity, good conscience and the substantial merits of the case, without regard to technicalities”, I consider that the multifactorial nature of the applicant’s condition entitles me to conclude, on a common-sense view of the evidence, that he is confined to his residence on a regular and recurring basis and that the alleviation of his DVT condition is a material, and at times major, contributing cause of that confinement. I consider Professor Harper’s view that the applicant’s only prospect for participation in the work force is through part-time work from home to support that conclusion. I find that the requirements of the 30% level in Table 1.3 are satisfied and it is not, therefore, necessary for me to consider the lesser percentage levels.
The Subsidiary Issue
87. As noted at [7] above, in August 1996 the respondent paid an amount to the applicant pursuant to sections 24 and 27 of the Act in respect of permanent impairments of 15% and 10% of the applicant’s right ankle and left ring finger respectively. Although a very large number of documents were produced to the Tribunal in this case, the actual determination made by the respondent in respect of that payment was not among them and the respondent informed the Tribunal that it was “not available”.
88. However, some documents that throw light on the circumstances of the payment are included in the T documents. T172 is a letter dated 7 August 1996 from the respondent to the applicant in response to the application made by the applicant for permanent impairment. The letter points out what is considered to be the applicant’s entitlement based on a 25% impairment, but also informs the applicant that if his condition were to worsen in future he may be entitled to receive a further payment, but only if the condition worsens by a further 10%. Document T178 is a letter dated 27 August 1996 from the respondent to the applicant. The letter again sets out what is considered to be the applicant’s entitlement based on 25% impairment, and specifically states that it is not a formal assessment or determination - but that its purpose is to inform the applicant of the amount of compensation payable and to enable the applicant to “make an informed decision as to whether you wish to receive compensation at this time, or wait until your impairment has increased”. The letter goes on to say that “as your doctor has indicated that your condition will deteriorate over time, I can make an interim payment of permanent impairment. After making this payment, if your condition deteriorates further we will be able to upgrade the payment at a later time without being bound by the 10% increment rule contained in sub-section 25(4) of the Act”.
89. Document T180 is a document pursuant to which the applicant elected to receive compensation under the Act and that the payment “be made in the form of an interim payment” as provided for at sub-section 25(3) of the [Act]”.
90. For the applicant, it was contended that the August 1996 payment was an interim payment only and that, in any event, the present application relates to impairment to the cardiovascular system whereas the August 1996 payment related to impairment of the ankle and finger. Consequently, no previous payment has been made to the applicant for the impairment the subject of the current application and hence s 25(4) of the Act has no application in the present case.
91. For the respondent it was argued that the respondent’s liability for the cardiovascular impairment can only exist because it results from the earlier injuries to the applicant’s ankle and/or hand, and in the absence of those injuries the applicant can show no connection between his DVT and his employment. Accordingly, the DVT impairment is to be characterised as a separate or further impairment arising out of the same injury – see Comcare v Mihajovic (2000) 97 FCR 304, per Finn, J.
92. On the evidence before me as set out above in the correspondence that passed between the applicant and the respondent, I am satisfied that the payment that was made to the applicant in 1996 was an interim payment only in respect of the ankle and finger impairments. For that reason I am satisfied that s 25(4) of the Act can have no application in the present case because Comcare has never made a final assessment of the degree of permanent impairment of the applicant in respect of any impairment. However, there is another reason why s 25(4) is not relevant in the present case. Even if a final determination had been made and even if the cardiovascular impairment under Table 1.3 must be combined with the impairments as determined under the relevant Tables in respect of the applicant’s ankle and finger (about which I express no view) then the resultant combined percentage increase of total impairment would exceed 10% and, consequently, s 25(4) would not apply.
93. Having determined that the applicant’s permanent impairment for the purposes of s 24 in respect of his cardiovascular impairment under Table 1.3 is 30%, the question then arises as to what form of order I should make in this case.
94. The applicant submitted that if I determined that the applicant qualifies for a s24 lump sum payment under Table 1.3 of 30%, then I should adjourn the matter to a directions hearing and make a direction that the respondent perform the necessary calculations and prepare a Minute of Proposed Orders that would reflect the Tribunal’s decision.
95. The respondent submitted that if I were to find that the applicant was entitled to a further lump sum payment under s 24, then the Tribunal should remit to the respondent the question of calculation of the appropriate amount of further compensation to be paid to the applicant pursuant to s 27, having regard to the fact of the previous payment to the applicant under s 27, the details of which are not before the Tribunal.
96. As I have noted at [11] above, it is not in dispute that the respondent is liable to pay compensation to the applicant under ss 24 and 27 of the Act. However, the decision under review related only to the degree of permanent impairment for the purposes of s 24 and the case has been presented to me on the basis that the issue to be determined is the extent of the applicant’s permanent impairment under Table 1.3 for the purposes of s 24. Having determined that, in my opinion, the applicant’s degree of permanent impairment under that Table is 30%, it seems to me that the appropriate next step is to remit the matter to the respondent for the purpose of calculating the amount of compensation payable to the applicant. Issues may arise as to whether or not the applicant has suffered three separate injuries (to the ankle, the finger and the cardiovascular system), whether the degrees of impairment for each of those injuries must be combined under Table 14.1 of the Guide, or whether each should be treated as distinct impairments arising from distinct injuries. Those issues were not the subject of the decision under review and were not canvassed in the present proceedings. It would be inappropriate to attempt to deal with them in the present case.
97. Accordingly, my decision is that the decision made on 6 September 2000 by a delegate of the respondent is set aside. I remit the matter to the respondent for the purpose of calculating the compensation payable to the applicant with a direction that the applicant has a degree of permanent impairment of the cardiovascular system under Table 1.3 of 30% for the purposes of s 24 of the Act.
98. In view of that decision I also order, pursuant to s67(9) of the Act, that the respondent shall pay the costs of the proceedings incurred by the applicant to be determined in accordance with the Tribunal’s General Practice Direction.
I certify that the 98 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M Allen, Member
Signed: .....................Ms R Morgan.................................
AssociateDate/s of Hearing 31 March to 2 April 2003
Date of Decision 16 February 2004
Counsel for the Applicant Ms C Crawford
Solicitor for the Applicant Gibson & Gibson
Counsel for the Respondent Mr B Kelly
Solicitor for the Respondent Sparke Helmore
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