Morris and Comcare
[2007] AATA 1622
•2 August 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1622
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A 2006/115
GENERAL ADMINISTRATIVE DIVISION ) Re YVONNE MORRIS Applicant
And
COMCARE
Respondent
DECISION
Tribunal J.W. Constance, Senior Member
Dr M.D Miller AO, Member
Date2 August 2007
PlaceCanberra
Decision 1. The decision of Comcare made 14 March 2006 affirming the determination that and Ms Morris is not entitled to receive compensation under section 24 of the Safety, Rehabilitation & Compensation Act 1988, in respect of the injury, being a ligamentous injury to the left knee with effusion of the left knee joint, suffered on 13 September 1971, is set aside.
2. In substitution for the decision set aside it is decided that Ms Morris is entitled to receive compensation under section 24 of the Safety, Rehabilitation & Compensation Act 1988 in respect of the injury, being a ligamentous injury to the left knee with effusion of the left knee joint, suffered on 13 September 1971.
3. The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made Comcare shall pay the costs of the proceedings incurred by Ms Morris.
……..............................................
J.W. Constance, Senior Member
CATCHWORDS
COMPENSATION – Commonwealth employees – left knee injuries prior to 1988 as result of 2 separate falls - application for permanent impairment - When did the permanent impairment occur – Whether entitled to receive lump sum under the 1971 Act – Consequent entitlement under current Act
Administrative Appeals Tribunal Act 1975 (Cth), s 34J
Compensation (Australian Government Employees) Act 1971 (Cth), s 39
Safety, Compensation and Rehabilitation Act 1988 (Cth), ss 24, 124
Johnston v Commonwealth (1982) 150 CLR 331
Brennan v Comcare (1994) 122 ALR 615
REASONS FOR DECISION
2 August 2007
J.W. Constance, Senior Member
Dr M.D Miller AO, MemberINTRODUCTION
1. Ms Morris has had the misfortune to have suffered two substantial injuries to her left knee – the first in 1971, the second on 1977. The first of these injuries occurred as Ms Morris was travelling to work as an employee of the Department of Veterans’ Affairs. Subsequently the Commissioner for Employees’ Compensation accepted liability to compensate Ms Morris for treatment expenses and loss of earnings arising from this injury.
2. In 2005 Ms Morris applied for compensation for a permanent impairment resulting from the injury. Comcare refused this request. Ms Morris is seeking a review of this decision.
3. For the reasons which follow we have decided that the decision under review should be set aside and in substitution there should be a decision that Ms Morris is entitled to such compensation.
4. Pursuant to section 34J of the Administrative Appeals Tribunal Act 1975 (Cth) this matter has been determined by consideration of the documents without holding a hearing. The following documents have been taken into evidence:
·the documents filed pursuant to section 37 of the above Act (“T” documents) - exhibit 1;
·report of Dr Hopcroft 26 September 2005 - exhibit 2;
·report of Dr Shatwell 5 October 2005 - exhibit 3;
·report of Mr Seward 28 June 2006 - exhibit 4;
·report of Dr Hopcroft 31 July 2006 - exhibit 5;
·report of Dr Hope 31 August 2006 - exhibit 6.
In addition the following documents have been considered:
·Respondent’s statement of Issues 20June 2006;
·Applicant’s Statement of Issues 6 July 2006;
·Respondent’s Statement of Facts and Contentions 6 October 2006;
·Applicant’s submission 17 October 2006;
·Applicant’s further submission 17 October 2006;
·Applicant’s Statement of Facts and Contentions 8 January 2007;
·Applicant’s submissions 1 June 2007;
·Respondent’s submissions 12 June 2007;
·Applicant’s submissions 22 June 2007.
FACTS
5. We are satisfied of the following facts on the balance of probabilities.
6. From her teenage years Ms Morris has suffered the condition of Fragilitis Osseum, a brittleness of the bones. This condition did not prevent her commencing employment as a clerk in the Department of Veterans’ Affairs, a position she held for approximately 20 years which included the period from 1971 until the end of 1977.
7. In 1971 Ms Morris fell on her way to work injuring her left knee. This injury required her to wear a calliper and prevented her returning to work until February 1972.[1]
[1] Report of Dr Maxwell 12/4/1988, T134.
8. Dr Hope, Orthopaedic Surgeon, assessed Ms Morris at the request of Comcare in August 2006. He provided a report of 31 August 2006.[2] This is a detailed report which is consistent with the reports of the treating practitioners and we make the following findings based on his opinions and the history he took from Ms Morris. We note that Comcare has argued that the report of Dr Hope should be preferred and accepted.
8.1 The injury sustained by Ms Morris in 1971 was “a severe combined valgus external rotation injury. This resulted in immediate swelling and an inability to weight-bear.” [3]
8.2 Ms Morris received physiotherapy treatment for the injury and wore a calliper for 12 months.
8.3 “…….intermittent left knee pain continued after the injury. In addition, there were significant mechanical symptoms including stiffness, weakness, instability and giving way whilst moving down steps or slopes twice a week. There was a significant and permanent functional loss as indicated by -- experiencing moderate difficulty when transferring from a sitting to a standing position, having a standing limit of 60 minutes, the requirement of calliper use whilst negotiating steps and the permanent inability to run, side-step, squat or kneel.
A 40% recovery is estimated after this injury.
Work continued for the next six years with the above-listed continuing symptoms and functional loss – particularly instability and giving way whilst negotiating slopes and stairs." [4]
[2] Ex. 6.
[3] Ex.6 p.2.
[4] Ex.6 p.2.
9. On 25 October 1977 Ms Morris suffered a fracture of her left patella when she fell as a result of her knee giving way. This injury was caused by the weakness of her left knee occasioned by the 1971 incident. Ms Morris underwent an operation to repair the patella, followed by an extended period of physiotherapy. The repair failed despite a second attempt. In May 1979 Ms Morris ceased her employment by the Department. This was as a result of the loss of function of her left knee.
10. When Dr Hope assessed Ms Morris’ condition in August 2006 he determined that there was a permanent functional loss in the left knee and a severely reduced left lower limb function; “there was a permanent inability to negotiate steps or slopes, run, side-step, squat or kneel, a standing limit of 60 minutes and difficulty transferring from a sitting to a standing position.” [5] This condition has stabilised.
[5] Ex 6 p.5.
11. In the opinion of Dr Hope Ms Morris was totally incapacitated for work prior to and on 1 December 1988 “partially as a result of her 13 September 1971 left knee injury.”[6] In his opinion Ms Morris’ knee condition is 50% due to the 1971 incident and 50% due to the related 1977 incident. Further there was a 60% loss of efficient use of the left leg at or above the knee on 1 December 1988 and at the time of the assessment. We accept this evidence.
[6] Ex.6 p.7.
12. In a report of 12 April 1988 [7] Dr Maxwell expressed the opinion that Ms Morris was incapacitated for work at that time by reason of her inability to travel by public transport, however she could and had worked in other capacities such as shopkeeping since she ceased to work for the Department.
[7] T134.
13. In September 2005 Dr Shatwell assessed Ms Morris at the request of Comcare. In his report of 5 October 2005 Dr Shatwell stated that either of the injuries to Ms Morris’ knee “would have been sufficient to lead to medical retirement as both rendered her knee significantly unstable.” [8]
[8] T2d.
14. Ms Morris was able to undertake some employment between the 1977 fall and 1 December 1988.
STATUTORY BACKGROUND
15. Subsection 24(1) of the Act provides:
“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."
Subsection 124(1) provides:
“Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day."
The commencing day of the Act was 1 December 1988.
Subsection 124(3) of the Act provides in part:
“A person is not entitled to compensation under section 24 or of of 25 in respect of a permanent impairment,………. being an impairment……… that occurred before the commencing date, if ..……….(b) the person was not entitled to receive compensation of a lump sum in respect of that impairment……….under the 1971 Act as in force when the impairment……….occurred.”
16. Section 39 of the Compensation (Australian Government Employees) Act 1971 (Cth) provided for compensation by way of lump sum for various injuries suffered by certain government employees. Ms Morris was such an employee during the relevant period of her employment by the Department. The injuries for which a lump sum was payable included an injury resulting in a partial loss of the efficient use of a leg at or above the knee.[9]
[9] Subsections 39(4) and 39(11).
17. Subsection 39(14) of the 1971 Act provided:
“ An amount of compensation referred to in this section is not payable in respect of an injury so long as the employee is, or is likely to become, totally incapacitated for work where the incapacity for work results, or, if it occurs, will result, in whole or in part from that injury."
ISSUES FOR DETERMINATION
18. The following issues require determination.
18.1 Has Ms Morris suffered an injury which has resulted in a permanent impairment?
18.2 If so, when did the permanent impairment occur?
18.3 If so, was Ms Morris entitled to receive compensation of a lump sum in respect of the permanent impairment under the 1971 Act as in force when that impairment occurred?
REASONING
Has Ms Morris suffered an injury which has resulted in a permanent impairment?
19. It is clear on the evidence that Ms Morris suffered an injury to her left knee on 13 September 1971 and that this injury is an “injury” within the meaning of the current Act. This is not in dispute.
20. On the basis of the reports of Dr Hope and Dr Shatwell we are satisfied that the injury resulted in a permanent impairment. Their reports establish that Ms Morris suffered damage to, and malfunction of, her knee in the incident and that the damage and malfunction have continued since the time of the injury and are likely to continue. This situation meets the definitions of “impairment” and “permanent” within the meaning of subsection 4(1) of the current Act. Again, this is not in dispute.
When did the permanent impairment occur?
21. Dr Hope reported ”significant mechanical symptoms” and “significant and permanent functional loss” as a result of the 1971 injury and that Ms Morris’ recovery from this injury was estimated at only 40%. On this basis we are satisfied that Ms Morris’ injury resulted in permanent impairment from the date of the injury. This conclusion is supported by the report of Dr Shatwell which records his view that the injury rendered Ms Morris’ knee “significantly unstable.” If this conclusion is incorrect we are satisfied that the impairment became permanent i.e. “likely to continue indefinitely” sometime prior to 25 October 1977 being the date of the second injury.
Was Ms Morris entitled to receive compensation of a lump sum in respect of the permanent impairment under the 1971 Act as in force when that impairment occurred?
22. The relevant provisions of the 1971 Act came into force on 1 September 1971. The provisions referred to earlier in these Reasons are to be applied in determining this issue.
Comcare’s argument
23. In its Statement of Facts and Contentions of 6 October 2006 Comcare argued that the combined effect of subsection 124(3) of the current Act and subsection 39(14) of the 1971 Act excludes Ms Morris from any entitlement to compensation for the permanent impairment resulting from the 1971 injury. It was argued that this conclusion follows from findings that both the compensable 1971 injury resulting in permanent impairment and Ms Morris’ totally incapacity for work occurred prior to 1 December 1988, the date the current Act commenced.
24. We do not accept this argument as it refers to the incorrect time at which the entitlement to receive lump sum compensation is to be determined. There is no requirement in subsection 124(3) that the time for assessment of entitlement is the commencement of the current Act.
25. For entitlement to be denied subsection 124(3) requires that “the person was not entitled to receive a lump sum under the 1971 Act as in force when the impairment occurred”. One interpretation could be that the time for assessment is the time the permanent impairment occurred. We do not consider this to be a correct interpretation as the words “when the impairment occurred” qualify the words “the 1971 Act as in force” rather than the word “entitled”. Such an interpretation would exclude a claimant who suffered a permanent impairment and was totally incapacitated at the time of the injury even though that incapacity may have been for a very short period.
26. In our view subsection 124(3) only applies to exclude a person from entitlement to compensation for permanent impairment if at no time was the person entitled to a lump sum in respect of that impairment under the 1971 Act. The Act to be applied in determining whether a person was entitled to lump sum compensation is the Act in force at the time of the impairment becoming permanent. Both the current Act and the 1971 Act are beneficial legislation and should be interpreted accordingly.[10].
[10] See Johnston v Commonwealth (1982) 150 CLR 331 per Gibbs CJ, Mason and Wilson JJ at 342- 343 and also Brennan v Comcare (1994) 122 ALR 615 per Burchett J at 621
27. We are satisfied that Ms Morris was not totally incapacitated for work, either in whole or in part, from the time of her return to work following the 1971 accident (February 1972) until the second accident on 25 October 1977. We are satisfied also that during this same period Ms Morris was not “likely to become totally incapacitated”. During this period Ms Morris was able to continue her employment as a clerk and it was only that she suffered the misfortune of again falling, suffering further severe injuries to the same knee, that she became totally incapacitated. There is no evidence to suggest that following the first injury it was likely that she would suffer another severe injury to the same part of her body and that the effects of second injury would combine with the first to cause total incapacity.
28. On the basis set out above, had she applied after February 1972 and prior to 25 October 1977, Ms Morris would have been entitled to a lump sum payment under the 1971 Act for the partial loss of the efficient use of her left leg at or above the knee. The provisions of subsection 39(14) would not have disentitled Ms Morris to a payment of that sum. It follows that subsection 124(3) of the current Act does not disentitle her to payment of compensation for the permanent impairment resulting from the 1971 injury.
DECISION
29. The decision of Comcare made 14 March 2006 affirming the determination that and Ms Morris is not entitled to receive compensation under section 24 of the Safety, Rehabilitation & Compensation Act 1988, in respect of the injury, ligamentous injury to the left knee with effusion of the left knee joint, suffered on 13 September 1971, is set aside.
30. In substitution for the decision set aside it is decided that Ms Morris is entitled to receive compensation under section 24 of the Safety, Rehabilitation & Compensation Act 1988 in respect of the injury, being a ligamentous injury to the left knee with effusion of the left knee joint, suffered on 13 September 1971.
31. The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made Comcare shall pay the costs of the proceedings incurred by Ms Morris.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member and Dr M.D Miller AO, Member.
Signed: .....................................................................................
Geoff Foley, Associate
Date of Hearing On the papers
Date of Decision 2 August 2007
Solicitor for the Applicant John Coleman
Solicitor for the Respondent Dibbs Abbott Stillman
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