Newitt and Comcare (Compensation)

[2022] AATA 1928

Newitt and Comcare (Compensation) [2022] AATA 1928 (23 June 2022)

Division:GENERAL DIVISION

File Number:          2021/2557

Re:Gavin Newitt

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member P.Q. Wood

Date:23 June 2022

Place:Melbourne

The Reviewable Decision dated 8 April 2021 is affirmed.

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Senior Member P.Q. Wood

Catchwords

COMPENSATION – history of pack pain – bladder neck obstruction – sexual function impairment – whether Table 12.7 or Table 10.3 of the Comcare Guide apply – whether the current level of impairment results in an increase in the level of impairment of at least a 10% WPI – maximum amount payable reached – reviewable decision affirmed.

Legislation

Safety Rehabilitation and Compensation Act 1988 (Cth)

Secondary Materials

Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1)

REASONS FOR DECISION

Senior Member P.Q. Wood

23 June 2022

INTRODUCTION

1. On 23 April 2021 Gavin Newitt (“the Applicant”) applied to the Administrative Appeals Tribunal (“the Tribunal”) for a review of a decision made by Comcare (“the Respondent”) on 8 April 2021 in relation to the Applicant’s claim for permanent impairment for bladder neck obstruction. The Comcare decision affirmed the primary decision to decline liability to pay further compensation for a permanent impairment and non-economic loss under ss 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) as the Applicant had reached the maximum amount payable (“the Reviewable Decision”).

   BACKGROUND

2. The Applicant worked for Victoria Police from 1966 to 1990, before working as a credit card fraud investigator with Cardlink from 1992 to 2000. He was then self-employed from early 2000, and later commenced working with the Department of Veterans’ Affairs (“DVA”) in 2001 as a fraud investigator, whilst also continuing to operate his own business.

3. The Applicant has a history of back pain. On 21 September 1992 the Applicant suffered an injury to his neck, lower back and stomach that occurred during an incident whilst he worked at Cardlink. During this incident, the Applicant slipped off the edge of a chair onto his coccyx at work. The Applicant submitted a worker’s compensation claim with Victorian Workcover Authority for this incident and took some time off work. He has continued to have intermittent back pain, with occasional left leg pain.

4. The Applicant has had a number of episodes of prostatitis.

5. On 21 June 2009, the Applicant was admitted to hospital with ongoing lower back pain. Examination demonstrated that he had preserved power and perianal/periococcygeal sensation, and subsequently developed saddle anaesthesia with reduced anal tone. Following an MRI, he was diagnosed with cauda equina syndrome.

6. On 13 August 2009, the Applicant underwent urodynamic studies which revealed a range of concerns, including bladder neck obstruction on imaging.

7. On 10 October 2009, the Applicant underwent a bladder neck incision. Following this, a report dated 30 April 2010, Dr M Wishaw advised Comcare that the bladder neck obstruction ‘is not related to either his original back injury, or to the cauda equina syndrome’.

8. The Applicant was then assessed, at the request of DVA, by doctors on numerous occasions, with reports dating July 2010, April 2011, and June 2011, regarding his ongoing symptoms affecting the bladder and bowel, and sexual function. On 14 September 2011, the Applicant was retired from DVA on medical grounds. 

9. The Applicant has previously received a permanent impairment lump sum under ss 24 and 27 of the SRC Act in accordance with a previous decision of the Tribunal (differently constituted) dated 29 February 2016, which included payment for a 50% whole person impairment (“WPI”) for neurological impairment of the urinary system under Table 12.7 of the approved Comcare Guide.

10. On 11 December 2020, the Applicant made a permanent impairment claim for bladder neck obstruction.

11. On 4 March 2021, Comcare denied the claim from the Applicant on the basis that he had already received the maximum award under Table 12.7 (per the decision dated 29 February 2016, discussed above), and that Table 10.3 of the approved Comcare Guide was not appropriate. In the Reviewable Decision, this was affirmed on the basis that the Applicant had not sustained a worsening of his impairment in relation to the bladder neck obstruction of 10% or greater because it does not fall under Table 10.3, as the bladder neck obstruction is neurological in nature rather than due to urinary system pathology, and because the maximum WPI of 50%, as provided under Table 12.7, had already been awarded.

12. The Applicant appeared before the Tribunal on 10 March 2022 via video-link to give evidence.

    ISSUE

13. The relevant issue is:

    (a)whether the current level of impairment, when assessed under the relevant Table, results in an increase in the level of impairment of at least a 10% WPI since the previous decision of the Tribunal dated 29 February 2016.

    LEGISLATION

14. Section 24 of the SRC Act provides the entitlement to lump sum compensation as follows:

    (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 purposes 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.

    …

15. Relevantly, s 27(1) of the SRC Act provides:

    Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non‑economic loss suffered by the employee as a result of that injury or impairment...

16. ‘Permanent’ is defined further in s 4(1) of the SRC Act as meaning ‘likely to continue indefinitely’.

17. ‘Injury’ is defined under s 5A(1) of the SRC Act to mean:

    (a)  a disease suffered by an employee; or

    (b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or

    (c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;

    but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.

18. Section 25(4) of the SRC Act provides for entitlement to further lump sum compensation for permanent impairment after a final determination of entitlements is made, stating specifically that:

    Where Comcare has made a final assessment of the degree of permanent impairment of an employee (other then 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.

19. The approved guide for assessing the degree of impairment (made pursuant to s 28 of the SRC Act), called the Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1) (“the Guide”), sets out, in accordance with s 28(1) of the SRC Act, the following to be considered when assessing permanent impairment:

    (a)  criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury shall be determined;

    (b)  criteria by reference to which the degree of non-economic loss suffered by an employee as a result of an injury or impairment shall be determined; and

    (c)   methods by which the degree of permanent impairment and the degree of non-economic loss, as determined under those criteria, shall be expressed as a percentage.

20. Section 28(4) of the SRC Act goes on to state, relevantly, that:

    Where Comcare, a licensee or the Administrative Appeals Tribunal is required to assess or re-assess, or review the assessment or re-assessment of, the degree of permanent impairment of an employee resulting from an injury, or the degree of non-economic loss suffered by an employee, the provisions of the approved Guide are binding on Comcare, the licensee or the Administrative Appeals Tribunal, as the case may be, in the carrying out of that assessment, re-assessment or review, and the assessment, re-assessment or review shall be made under the relevant provisions of the approved Guide.

    CONSIDERATION

21. The central aspect of the oral evidence that the Applicant presented during the hearing was that he had experienced an increase in the frequency of the necessity to self-catharize since the previous decision of the Tribunal dated 29 February 2016; and that as a result, he contended that he ought to be awarded a further lump sum.

22. A second concern also arose in relation to the Applicant’s sexual functioning. In this respect, I have read and had regard to the written report of Dr Pattison dated 17 August 2021, which stated that the Applicant has a 15% WPI based upon impairment of sexual function. In cross-examination, the Applicant acknowledged that he was previously awarded compensation on the basis of there being an impairment of sexual function of 20%. Given that this is a 5% increase, it appears that the Applicant may have already been overcompensated in this regard. As such, I take the concern regarding the Applicant’s sexual functioning no further.

23. In response to the Applicant’s evidence, the Respondent correctly highlighted that the Applicant’s most recent claim of having to self-catharise more does not justify an assessment higher than the maximum allowable under Table 12.7, which is 50% WPI, and that Table 10.3 of the Guide does not apply to the Applicant as his impairment is a sequela of his cauda equina syndrome, and not due to localised pathology. The only applicable Table is 12.7. Further, the Respondent’s counsel also correctly submitted that the maximum allowable under Table 12.7, being 50% WPI, has already been awarded to the Applicant, in the prior decision of the Tribunal dated 29 February 2016. I consider that the Respondent is correct that an award of anything higher than the maximum is not allowable.

24. I find that the Applicant has not demonstrated an increase of at least 10% WPI in impairment of bladder function since the finding of a 50% WPI under Table 12.7 of the Guide in the earlier decision of the Tribunal dated 29 February 2016. I also find that Table 10.3 of the Guide does not apply to the Applicant as his impairment is a sequela of his cauda equina syndrome and not due to localised pathology.

    DECISION

25. The Reviewable Decision dated 8 April 2021 is affirmed.

I certify that the preceding 25 (twenty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member P.Q. Wood

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Associate

Dated: 23 June 2022

Date of hearing:	10 March 2022
Applicant:	Self-Represented
Counsel for the Respondent:	Roy Seit
Solicitors for the Respondent:	Moray and Agnew Lawyers