Penfold and Military Rehabilitation and Compensation Commission
[2006] AATA 90
•3 February 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 90
ADMINISTRATIVE APPEALS TRIBUNAL )
)No N2003/1920
)N2005/377
VETERANS’ APPEALS DIVISION ) N2005/640
Re ARTHUR PENFOLD Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Ms N Bell, Senior Member
Dr M Thorpe, MemberDate3 February 2006
PlaceSydney
Decision
- Application N2003/1920 is dismissed.
- Application N2005/377 is varied as follows:
i) That aspect of the decision that refuses lump sum compensation in respect of Mr Penfold’s back is affirmed.
ii) That aspect of the decision that assesses the compensation to be paid to Mr Penfold in respect of his right side sciatica is set aside and the matter is remitted to the Respondent for calculation of the amount of lump sum compensation to be paid to Mr Penfold with directions that Mr Penfold has a permanent impairment of his right leg of 20% which occurred on 30 June 1974.
- Application N2005/640 is affirmed.
.............................................
Ms N Bell
Presiding Member
VETERANS’ APPEALS – Applicant Injured in 1968 – Liability Accepted – Later Claim Made for Condition Stated to Arise Out of 1968 Incident – Question as to What Legislation is Applicable to Various Stages of Decision Making – Question of What Determinations Are Properly Before the Tribunal for Review – Question of Whether Applicant’s Condition Underwent a Patho-physiological Change Post 1988 and Thus a New Impairment – Applicant’s Entitlement to Lump Sum Payment
Safety, Rehabilitation and Compensation Act 1988
Commonwealth Employees Compensation Act (1930)
Compensation (Commonwealth Government Employees) Act 1971
Comcare Australia (Dept of Defence) v Maida [2002] FCA 1284
Lees v Comcare (1999) 56 ALD 84
Department of Social Security v Alvaro (1994) 19 AAR 460
Woodbridge v Comcare (1994) 20 AAR 196
REASONS FOR DECISION
3 February 2006 Ms N Bell, Senior Member
Dr M Thorpe, Member1. Mr Penfold was born in 1929. He joined the Army Reserve in 1952 and later the regular Army, serving until 1981. The incident at the centre of these applications occurred on 1 February 1968, when Mr Penfold was stationed at Moore Park Barracks and was unloading chairs from a truck. The bed of the truck was at about waist height. Mr Penfold fell backwards off the truck bed with his right foot caught in the foothold aperture of the tailgate.
2. Mr Penfold made no claim at the time of the accident but made a claim in 1970 for a crush fracture of the spine and right sciatica, for which the Respondent accepted liability. Mr Penfold now says three conditions arose out of the 1968 accident, the additional condition being osteoarthritis of his right knee. He has made three applications to the Tribunal. Mr Penfold’s matter is a complicated one that gives rise to a matrix of issues. A significant length of time has elapsed between the accident and the claims made more recently by Mr Penfold. In addition, the statutory provisions governing payment of lump sum compensation and the operation of the transitional provisions of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”) have evolved over time, and the way in which the Respondent has administered the claims made by Mr Penfold adds further complexity. In order to clearly identify the issues raised by this combination of factors, and deal with them appropriately, it is necessary to look at the path of each of the applications and to isolate the questions raised by the SRC Act transitional provisions and certain case law.
background of the three claims made by mr penfold
Application N2003/1920
3. On 2 April 2002 Mr Penfold lodged a claim for lump sum compensation for “crush fracture of L1, L5 and right sciatica”. The Respondent wrote to him on 2 December 2002, stating that a lump sum is not payable in relation to Mr Penfold’s back, but that an amount of $1,500 for a 20% loss of efficient use of his right leg resulting from his sciatica is payable to him. The letter stated that a “formal determination and assessment of the amount of compensation payable” will be made when Mr Penfold advises “what (he) want(s) to do”. Mr Penfold then wrote to the Respondent on 27 December 2002 requesting “a review and reconsideration”. A file note of a conversation between an officer of the Respondent and another person on 24 January 2003 notes that the “challenge” is to the decision in relation to Mr Penfold’s back only, that a further medical report concerning the back was to be obtained, and that action would be deferred in relation to the leg claim until the reconsideration is finalised.
4. On 3 July 2003 the Respondent wrote to Mr Penfold repeating advice that Mr Penfold’s back must be considered under the Commonwealth Employees Compensation Act 1930 (“1930 Act”) which made no provision for lump sum payments for spinal conditions but agreed to defer “review action” until Mr Penfold had obtained further medical information. The letter also purported to “amend the offer” made in the letter of 2 December 2002 in relation to Mr Penfold’s sciatica to an assessment of $8,997.00 made on the basis of the “latest available rates in force prior to the introduction of the SRCA”, which were those in force at 13 June 1988. The letter described this as an “offer” and invited Mr Penfold, if he wished to accept the offer, to complete an election form and send it to the Respondent. A copy of a completed form, dated 30 June 2003, appears in the T documents at p90. Given the dates, the form does not appear to be in response to the Respondent’s letter of 3 July 2003. However, Mr Penfold’s evidence was that he received and banked a cheque for the higher amount.
5. On 29 October 2003 the Respondent wrote to Mr Penfold saying that, on reconsideration, no lump sum was payable in respect of his back for the reasons previously given and the “determination” dated 2 December 2002 was “affirmed”.
6. Mr Penfold says this is a reviewable decision. The Respondent says no determination was made but, rather, it made an offer to Mr Penfold and the application for review of the purported reviewable decision should be dismissed because it is not properly before the Tribunal. We must determine the status of the “decision” and whether the tribunal has jurisdiction to review it.
Application N2005/377
7. This application concerns a determination made on 1 March 2005 referring to the Respondent’s letter of 2 December 2002, concerning Mr Penfold’s claim for permanent impairment for a crush fracture of L1, L5 and right side sciatica. The Respondent made a decision to pay $1,500 for right side sciatica and to make no payment in respect of Mr Penfold’s back. The determination noted that the Respondent’s earlier letter of 2 December 2002 was later incorrectly referred to as a “determination” and stated it was not a proper determination within the meaning of section 61 of the SRC Act. On 21 March 2005, Mr Penfold made a request for reconsideration of the determination and on 23 March 2005, the Respondent affirmed the determination.
8. Given the date of the injury the 1930 Act applies. There is no provision for the payment of lump sum compensation in respect of an injury to Mr Penfold’s back under the 1930 Act. This reviewable decision raises the issue of whether there has been a qualitative change in relation to Mr Penfold’s back (and possibly his leg) (see Comcare Australia (Dept of Defence) v Maida [2002] FCA 1284), making it a new condition that arose post 1988, thereby attracting the substantive, rather than transitional, provisions of the SRC Act. If we find no such new condition, then the question arises whether the Respondent’s assessment of the right leg impairment was correct. However, a further issue was raised by Mr Best, for the Respondent, at the close of the hearing. That issue concerns the provisions of section 124(3)(a) of the SRC Act to the effect that a person is not entitled to compensation under section 24 or 25 of the SRC Act in respect of a permanent impairment that occurred before the commencement of the SRC Act if the person received lump sum compensation under an earlier Act.
9. We note that similar issues arise in relation to application number N2003/1920, should we determine that it is properly before us.
Application N2005/640
10. This application concerns Mr Penfold’s claim on 4 April 2005 for osteoarthritis of his right knee. The Respondent determined it was not liable on the basis that the right knee osteoarthritis is not related to the 1968 incident. Mr Penfold requested a reconsideration of this determination on 6 May 2005. On 17 May 2005 the Respondent affirmed the determination, noting that Mr Penfold had developed right knee osteoarthritis independent of his military service and that, in any event, the notice requirements in section 16 of the 1930 Act had not been met.
11. This reviewable decision raises the issue of whether Mr Penfold’s right knee osteoarthritis is related to the 1968 incident and, if so, whether Mr Penfold is exempted from the notice requirements in the 1930 Act.
issues
12. In summary, the issues raised by these applications are:
i) Should application number N2033/1920 be dismissed? This is in the nature of a threshold issue and we will deal with it first.
ii) Was there a change to Mr Penfold’s underlying patho-physiological condition to the extent that there has been a qualitative change to the impairment and, consequently, a new impairment, post 1988?
iii) What is the appropriate assessment of Mr Penfold’s right side sciatica impairment and what is the effect of section 124(3)(a) of the SRC Act?
iv) Does Mr Penfold’s right knee osteoarthritis arise out of the 1968 incident and, if so
v) Is Mr Penfold’s failure to give the required notice exempted under s16 of the 1930 Act?
should application number N2003/1920 be dismissed?
13. The Tribunal’s jurisdiction to review a decision is founded by s64 of the SRC Act on the existence of a “reviewable decision” made under s62 of that Act (Lees v Comcare (1999) 56 ALD 84). The decision that is the subject of application N2003/1920 may only be reviewed by the Tribunal if it is a reviewable decision. In Department of Social Security v Alvaro (1994) 19 AAR 460, after commenting on the narrow construction given by the Tribunal to the word “decision”, the Full Federal Court said
“14. The right of review by the AAT of a decision of the SSAT given by
s.1283(1) arises where an administrative decision made in purported exercise
of powers conferred by the Act has, as a matter of fact, been reviewed by
the SSAT. That right exists whether or not the decision reviewed by the
SSAT, or the decision of the SSAT itself, was legally effective. A similar
construction should also be accorded to "decision" in ss.1239 and 1247 which
respectively provide for internal review of decisions by the Secretary, and
the review of decisions by the SSAT…
…
16. Prior to the decision of the SSAT there was the original decision made on
31 July 1991, and the decision of the Review Officer. In the hierarchy of
reviews from original decision-maker to the AAT it was not necessary that
there be at the outset an original decision that was in all respects validly
made, and at each level of review thereafter another decision that was in all
respects validly made. The person or tribunal to whom application for each of
the reviews was made had jurisdiction to undertake that review so long as the
preceding decision-maker had made what purported to be a decision in
exercise of powers conferred by the Act affecting the interests of the person
seeking review. It mattered not whether the ground of complaint made about
the preceding decision was merely that it is wrong on the merits, or that in law
it was not an effective decision because it was made by someone without
authority, or in excess of authority, or for improper purposes, or was
vitiated through procedural irregularity such as a failure to accord natural
justice.(emphasis added)”
14. We also note the decision of Hill J in Woodbridge v Comcare (1994) 20 AAR 196 in which the decision in Alvaro (supra) was applied to the circumstances and law of an application under the SRC Act.
15. Throughout the Respondent’s correspondence to Mr Penfold, the stated opinion of the Respondent’s officer as to Mr Penfold’s entitlement to payment of a lump sum in relation to his back was clearl and unequivocal. In the Respondent’s letter to Mr Penfold on 29 October 2003, which refers to Mr Penfold’s request for reconsideration, that opinion was expressed to be a “determination” and that determination was purported to be “affirmed”. The letter informed Mr Penfold of his right to further review by this Tribunal. Mindful of the decision of the Full Court in Alvaro (supra), we find that a decision under section 62 of the SRC Act was in fact made and is recorded and published in the Respondent’s letter of 29 October 2003.
16. The Respondent, however, proceeded along different lines with respect to the question of Mr Penfold’s right side sciatica. We note the file note that records a telephone conversation between an officer of the Respondent and another person in which the officer records that he asked which “decision” was to be reconsidered – the decision with respect to Mr Penfold’s back or the decision with respect to his sciatica. The answer given is that only the decision in respect of the back is to be reconsidered. It appears that this conversation is between two officers of the Respondent. One party to the conversation is noted as “Mr Hughes” whose name appears in earlier correspondence with Mr Penfold. We note that Mr Penfold had been advised in a letter dated 23 January 2003, that his request for reconsideration would be handled by another officer, a Mr Schultz. It may be that the other officer who is a party to the conversation is Mr Schultz.
17. The file note is not evidence of Mr Penfold’s intentions as to the scope of his request for reconsideration but it is evidence of what the Respondent’s officers thought, at that time, was being reconsidered. Were the matter to end there, we would readily conclude that no reconsideration of the decision with respect to Mr Penfold’s sciatica took place. However, there remains the Respondent’s letter to Mr Penfold of 3 July 2003. That letter, although expressed to be an “offer” shows that the conclusion reached in the letter of 2 December 2002, to the effect that Mr Penfold was entitled to be paid an amount of $1,500 for his sciatica, had been revisited and another, different, conclusion reached being that he was entitled to a larger amount. Unlike the reconsideration of the determination in relation to Mr Penfold’s back, this “reconsideration” was not expressed by the Respondent to be a reconsideration and no notice was given to Mr Penfold of his right to have the decision reviewed by this Tribunal. While, the decision in Alvaro (supra) says that a failure of this kind does not mean that a reconsideration decision was not made in fact, we do not think the Respondent considered itself to be undertaking a reconsideration under section 62 of the SRC Act. The language of “offers” used in the Respondent’s letter of 3 July 2003 confirms our view. Nor do we consider that a “determination” had been made at that stage.
18. On this basis we find that a reconsideration decision was not made by the Respondent in respect of Mr Penfold’s sciatica. The Tribunal therefore has no jurisdiction to review the offer made to Mr Penfold in the Respondent’s letter of 3 July 2003.
19. Section 62(1) of the SRC Act provides that a determining authority may, on its own motion, reconsider a determination made by it, whether or not a proceeding has been instituted in respect of a reviewable decision made in relation to that determination. Mr Richards, for Mr Penfold, submitted that the effect of the reviewable decision dated 23 May 2005 (application number N2005/377) was to reconsider the reviewable decision dated 29 October 2003 (application number N2003/1920). We consider that submission to be correct. Mr Richards also submitted that the reviewable decision of 23 May 2005 also reconsidered the earlier “determination” in respect of Mr Penfold’s right side sciatica. We have already concluded that no determination, and no reconsideration, within the meaning of the SRC Act, was made by the Respondent in respect of Mr Penfold’s right side sciatica.
20. However, following Mr Penfold’s acceptance of the Respondent’s offer of payment of $8,997.00, the Respondent made the payment – that is, it “determined” that the payment should be made. On this basis, we agree that the reviewable decision of 23 May 2005 reconsidered, and varied, the determination to pay Mr Penfold a lump sum of $8,997.00 in respect of his right leg impairment.
21. The effect of this path of decision making embarked on by the Respondent is that there is no reviewable decision in respect of Mr Penfold’s right sciatica before the Tribunal in application number N2003/1920. Rather, a reviewable decision concerning Mr Penfold’s right side sciatica is before the Tribunal in application number N2005/377. The reviewable decision of 29 October 2003 (N2003/1920 concerning Mr Penfold’s back only) was affirmed on reconsideration on the Respondent’s own motion on 21 March 2005 (N2005/377). This renders the proceedings in application number N2003/1920 unnecessary or abortive. On this basis, we have no option but to dismiss application number N2003/1920.
22. We wish to express our disapproval of the manner in which the Respondent handled Mr Penfold’s claim for his right side sciatica. We also note that this, together with our substantive decision may raise practical issues that may disadvantage Mr Penfold significantly. We consider it would be most unfortunate if an elderly man who accepted a payment offered to him in 2003, outside the usual administrative process, was placed in the position of having to refund it.
was there a qualitative change to the underlying cause of mr penfold’s patho-physiological condition?
23. Mr Penfold’s evidence was that he has had pain in his back since 1968. However, he sought to distinguish between the pain he had prior to 1 December 1988 (the date of the commencement of the SRC Act) and the pain he has had since then. He gave examples of things he was able to do pre 1988 and now can no longer do, such as drive a truck, mow the lawn, ride a horse, chair the local Bicentennial Committee and be apparatus officer of the local bush fire brigade. He said he was suffering moderate pain in his back prior to 1 December 1988 but now the pain is severe.
24. Mr Penfold also described modifications he has made to his home in the last 6 or 7 months to accommodate his difficulties with pain and mobility. He also described the deterioration of his clawed toes, necessitating special shoes 5 years ago, his use of a walking stick over the last 18 months, his need for assistance in getting out of bed and in putting on his shoes and socks, with showering and dressing, his difficulty with driving and his inability to have sexual intercourse for over 2 years. He said all of these limitations have developed after 1988.
25. Mr Penfold also described his inability to socialise now because he cannot sit for long periods. He said this was not the case in 1988.
26. In cross examination, Mr Penfold agreed that in a Medical Board examination on 23 July 1978 he said he could not stand for long periods or lift heavy loads. He also said he was receiving acupuncture at that time. Mr Penfold also agreed he has gained a lot of weight over the years, adding that his pain levels are the same now as they have been since 1968.
27. Dr J Ellis, Orthopaedic Surgeon, in his report of 21 November 2004, said, among other comments concerning Mr Penfold’s right leg, that there is degenerative change in Mr Penfold’s spine. He noted that he had a laminectomy for a lumbar vertebral disc lesion in 1970, but that his back is still painful and unstable. He made no mention of any particular worsening since 1988 and referred to some reports, by Mr Penfold to various other medical practitioners over the years prior to 1988, of severe pain in his back.
28. In oral evidence, Dr Ellis said that a damaged disc, through trauma or through surgery such as a laminectomy, would become progressively arthritic, would be vulnerable to ordinary use and an overweight man such as Mr Penfold would be under more stress. When asked whether there had been a “patho-physiological change” in Mr Penfold’s back since December 1988, Dr Ellis noted that Mr Penfold had aged and that the rate of change in the body speeds up as a person gets older. He concluded that some of the changes in Mr Penfold’s spine were set in train in 1968 and others were caused by habits, conditions of living and many other factors including his weight. He concluded that without regular x-rays, a clinical assessment of how Mr Penfold’s back was in 1988 is a matter of judgement.
29. Finally, Dr Ellis concluded that Mr Penfold did not have a crush fracture. He said this would be likely to show up on later radiology and it does not. He agreed that the injury suffered by Mr Penfold did not appear to have been a compression or crush injury and so, given the circumstances of his accident, it is unlikely that he suffered a crush fracture.
30. Dr D Maxwell, Orthopaedic Surgeon, in a report dated 2 June 2005, said Mr Penfold has generalised spondylosis. He considered Mr Penfold continues to suffer from the effects of the back condition that arose out of the 1968 accident and there has been little deterioration in the underlying problem since 1988 and no material change in his signs and symptoms since then, but he may have become more immobile due to underlying degenerative and constitutional conditions. He concluded that the majority of his back impairment was permanent prior to 1 December 1988 and that he has developed some constitutional degenerative changes in his back which have made his condition a little worse but these are not related to the 1968 accident.
31. Dr Maxwell considered there was no evidence to indicate Mr Penfold suffered a crush fracture of his spine in 1968. There was no evidence of compression and he considered a more appropriate diagnosis was disc lesion.
32. In oral evidence Dr Maxwell was firm in his view that Mr Penfold had no significant change in his back pathology since 1988 and said Mr Penfold did not differentiate between pre and post 1988 when giving his history. As to problems subsequent to 1988, Dr Maxwell considered his obesity, the development of arthritis in his right knee, his poor general health and his diabetes had contributed to the limitations he experiences. He said it would be mere conjecture, when examining in 2005, to give an opinion about Mr Penfold’s condition in 1988.
33. Dr N McGill, referring particularly to Dr Bromwich’s report of 23 May 1989, concluded that Mr Penfold’s back impairment is essentially the same as it was prior to 1 December 1988. In that report, Dr Bromwich described severe limitations on sitting, lifting and lumbar spine flexion and concluded Mr Penfold had a permanent impairment.
34. In oral evidence Dr McGill said there has been no change in the patho-physiology of Mr Penfold’s back since December 1988. He also said the circumstances of Mr Penfold’s 1968 accident would not have produced a crush fracture and none of the x-rays indicate one.
35. Dr J Day, Neurosurgeon, in a report dated 23 May 2005, said there has been a change in the patho-physiology of Mr Penfold’s back condition and said he based this view on Mr Penfold’s progressive deterioration, inability to walk or tolerate grades and/or steps and on his chronic gait antalgia.
36. In cross examination, Dr Day said Mr Penfold had complained of chronic ongoing back and right leg pain since 1968. He said the diagnosis he made of lumbar spondylosis and chronic radiculopathy is the same as he would have made in 1968 after the accident. He agreed that his view of Mr Penfold’s worsening condition was based on the history given to him by Mr Penfold and on the letter to him from Mr Penfold’s solicitors. He also agreed that Mr Penfold’s obesity, diabetes, hypertension and right knee arthritis have contributed to his decreased mobility and function. Finally, he agreed there was no evidence of Mr Penfold having sustained a crush fracture or compression.
37. Mr Richards, for Mr Penfold, urged us to accept Mr Penfold’s evidence of the change in the limitations and impairments suffered by him after 1 December 1988 from those suffered by him prior to that date. While we do not doubt Mr Penfold’s credibility, we are not confident that his memory of the specific times at which these changes took place is sufficiently reliable to displace the various reports by him to medical practitioners prior to 1988 of severe pain and limitations. Indeed, his evidence was, in cross examination, that his pain levels have not changed since the accident. In particular, we are mindful of the report of Dr Bromwich noting his inability to sit for long periods, lift heavy weights or bend. We also note his conclusion that Mr Penfold’s condition was permanent as early as 1986.
38. In any event, we find that there has been no change to the underlying condition suffered by Mr Penfold. We find, on the basis of the evidence of Drs Ellis, Maxwell, McGill and Day, that he did not suffer a crush fracture of his spine in the accident in 1968. No medical witness gave evidence that a different diagnosis applies to Mr Penfold now in contrast to the diagnosis that applied to him at the date of or shortly after the accident. Dr Day specifically said that he would have made the same diagnosis at the time of the injury in 1968 as he does now. Dr McGill gave evidence of no change in patho-physiology and Dr Maxwell said there had been no significant change in pathology. Dr Ellis referred to degenerative changes in Mr Penfold’s spine and noted that he had aged and that degeneration speeds up as a person gets older. He attributed the changes in Mr Penfold’s spine to the 1968 accident and to his weight. While Dr Day said there had been a change in the patho-physiology of Mr Penfold’s back, he also described it as a progressive deterioration of ongoing back and leg pain experienced by Mr Penfold since 1968, contributed to by his obesity, diabetes, hypertension and right knee arthritis.
39. The decision of Mansfield J in Maida (supra) summarises the law at paragraph 28:
“In effect, in this matter, the applicant puts the following propositions which, in my view, correctly summarise the state of the law:
“20.1 The progression of a disease or gradual worsening of the degree of an impairment does not constitute a new or distinct impairment.
20.2 If there is no change in the underlying patho-physiological condition causing an impairment, any worsening of that impairment will not constitute a new or distinct impairment.
20.3 A significant worsening of an impairment may constitute a new or distinct impairment, but only if there has been a qualitative change to the impairment – that is, the development of a new impairment.”
40. None of the above evidence supports a finding of qualitative change arising out of either a significant worsening of Mr P’s condition, or out of a change in patho-physiology. It cannot be said that Mr Penfold has a new impairment. At the time of the 1968 accident the 1930 Act was in force. That Act made no provision for the payment of lump sums in respect of impairments to the spine. Section 124(3) of the SRC Act precludes payment under sections 24 and 25 of the SRC Act in these circumstances. It follows that Mr Penfold is not entitled to compensation for permanent impairment in respect of his back under sections 24 and 27 of the SRC Act.
what is the correct assessment of mr penfold’s right side sciatica?
41. We turn, first, to the argument raised by Mr Best in relation to section 124(3)(a) of the SRC Act. That section provides:
“… (3) A person is not entitled to compensation under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing date, if:
(a) the person received compensation of a lump sum in respect of that impairment or death under the 1912 Act, the 1930 Act or the 1971 Act;…”
42. The provision prohibits receipt of compensation under certain sections of the SRC Act where a person has received lump sum compensation under the 1912 Act, the 1930 Act or the 1971 Act. There is no dispute that Mr Penfold received lump sum compensation in 2003. However, while the amount may have been calculated by reference to an earlier Act, it was not paid under an earlier Act. The amount was paid and received under the SRC Act. We do not consider section 124(3)(a) operates to bar Mr Penfold from receipt of further compensation in these circumstances.
43. Section 124(4) of the SRC Act provides:
“ (4) The amount of compensation (if any) that a person is, by virtue of this section, entitled to receive under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing day, shall be the same as the amount of the compensation that would have been payable to that person, if this Act had not been enacted, under:
(a) where the impairment or death occurred before the commencement of the 1930 Act—the 1912 Act;
(b) where the impairment or death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act—the 1930 Act as in force when the impairment or death occurred; or
(c) in any other case—the 1971 Act as in force when the impairment or death occurred.”
44. While Mr Penfold’s injury occurred in 1968, that does not necessarily mean that is when his impairment, that is, the impairment arising from his right side sciatica, occurred. The word “impairment” is defined in section 4 of the SRC Act as:
“the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.”
45. Mr Richards urged us to conclude there had been a continuing worsening of Mr Penfold’s impairment since 1968 and, in particular, over the last few years and so to conclude that his impairment should be assessed as at the date of the reviewable decision or at the date of our decision. We do not agree that the evidence supports this view.
46. Mr Penfold, in his evidence to the Tribunal, spoke of the constancy of the pain in his right leg since the accident in 1968. Drs Davidson and Gray, both treating doctors, in their reports referred to a significant increase in Mr Penfold’s weight in recent years. In our view this development should be taken into account when considering Mr Penfold’s more recent level of functioning. Dr Bromwich said in his report of June 1991 that he considered Mr Penfold’s sciatica had been stable since he’d begun to see him. Dr Bromwich’s clinical notes indicate that Mr Penfold began to see him in 1984. Dr Talbot was of the view that Mr Penfold’s loss of use of his right leg became permanent six months after his laminectomy in 1973. We consider this to be significant treatment and, even though Mr Penfold claimed it was of no benefit to him, no assessment should be made until the laminectomy could have effect. On this basis, we agree with Dr Talbot that a time after the laminectomy is the appropriate date for assessment. We consider that the appropriate date for assessment of the impairment of Mr Penfold’s right leg is in the year following his laminectomy and we identify 30 June 1974 as an appropriate date for that purpose. The lack of evidence as to this matter precludes precise identification of a date when the impairment occurred. We acknowledge that the date we have identified is based on imprecise factors. However, it takes into account the major relevant factors including major treatment and the later development by Mr Penfold of diabetes and considerable weight gain.
47. The remaining question in relation to assessment of Mr Penfold’s right side sciatica is that of percentage impairment. Mr Richards submitted that the impairment should be assessed at 30% in accordance with the Comcare Guide to the Assessment of Permanent Impairment. He drew support for this from the assessments made by Drs Ellis and Day. Mr Best submitted that the impairment should be assessed on the basis of Dr Talbot’s assessment of 20% or Dr Bromwich’s assessment of 10%. Dr Maxwell assessed the impairment at 20% and Dr McGill assessed it at 10%. Table 9.5 provides relevantly:
10
Can rise to standing position and walk BUT has difficulty with grades and steps
20
Can rise to standing position and walk BUT has difficulty with grades, steps and distances
30
Can rise to standing position and walk with difficulty BUT is limited to level surfaces
48. The additional factor that gives rise to an assessment of 30% is being limited to level surfaces. Mr Penfold gave no evidence of such a limitation, even though he commented extensively and in detail about the range and extent of his physical and functional limitations. Dr Ellis said, in oral evidence, that he made his assessment of 30% on the basis of the history given to him by Mr Penfold and on his physical examination. He agreed that Mr Penfold’s right knee osteoarthritis would impact on his ability to walk.
49. Dr Day said, in oral evidence, that Mr Penfold had told him of an inability to walk on uneven surfaces, but he did not include that history in his report and did not provide an explanation as to why it was omitted from his report.
50. Mr Penfold gave clear evidence of his difficulty with steps and his need to hold on to the railing when he uses the stairs. He also said he is able to walk up to 500 metres but is “bushed” after he has done so. It is only in recent times that he has required a walking stick. We are not satisfied that he is limited to walking on level ground. We are satisfied that Mr Penfold has difficulty with grades, steps and distances and so we consider that an assessment of 20% impairment is appropriate. In reaching this conclusion we are mindful of the contribution of Mr Penfold’s right knee osteoarthritis, for which he first sought specialist treatment in 2003, and his considerable weight gain in recent years. However, he was consistent in his evidence that he has experienced difficulty with his right leg sciatica since the accident in 1968.
does mr penfold’s right knee osteoarthritis arise out of the 1968 accident?
51. Mr Penfold’s evidence was that he heard his right leg (and back) “snap” when he fell from the truck. He said his knee pain persisted for four days and since then has become worse and so swollen he cannot bend it. In cross examination he agreed he did not sustain a separate injury to his knee but said he has had pain in his right knee since 1968. However, he also said he regards the symptoms in his back leg and knee as all one in the same. Mr Penfold generally maintained he had mentioned his right knee to medical practitioners he had seen over the years. He also agreed he has some trouble with his left knee.
52. Dr Ellis considered Mr Penfold’s right knee osteoarthritis is related to the 1968 accident because he has significant arthritis in his right knee but only early signs in the left. He referred to a “rule of thumb” that osteoarthritis is caused by trauma. He concluded that the fall backwards with his foot caught in a tailgate must have injured Mr Penfold’s leg. He also said a person may have an injury to a knee that may not severely incapacitate at the time of the injury but over time will be a problem with osteoarthritis. In cross examination, Dr Ellis agreed he had relied on Mr Penfold’s history of a swollen, painful knee following the accident.
53. Dr Maxwell’s evidence was that generally a soft tissue injury does not give rise to osteoarthritis, but allowed that an injury to the meniscus can. He said it is not unusual to see bilateral osteoarthritis with one limb worse than the other.
54. Dr McGill agreed Mr Penfold had a smaller range of movement in his right knee than in his left and a greater degree of osteoarthritis in his right knee. He also agreed that trauma can cause or aggravate arthritic changes. However, he considered that if Mr Penfold had suffered a meniscus injury he would have suffered very severe pain and he noted there was no mention of his knee in the Report of Injury. He concluded Mr Penfold’s right knee condition is not related to the 1968 accident because there is no evidence in the medical records of a meniscus injury or of complaints about the right knee generally despite many medical assessments and investigations over the years. He also noted the indication by Mr Penfold on a medical history questionnaire in 1978 that he had no knee injury.
55. Mr Penfold first saw Dr Gray, Orthopaedic Surgeon, in relation to his knee in 2003. In a report to Mr Penfold’s general practitioner, Dr Parker-Newlyn, on 25 June 2003, Dr Gray reported Mr Penfold’s statement to him that he specifically remembers his back “going” when he fell in 1968 but does not remember any specific injury to his knee. Dr Gray also noted that Mr Penfold has gained considerable weight in recent years.
56. Mr Penfold’s recollection of the effect of the 1968 accident on his right knee is at variance with the history he gave to his treating specialist, Dr Gray. Dr Ellis’ opinion is dependent on the history given to him by Mr Penfold of an injury to his knee and immediate symptoms. In the absence of any evidence of a meniscus injury and no record of knee problems prior to his consultation with Dr Gray in 2003, we cannot be satisfied that the osteoarthritis in Mr Penfold’s right knee is related to any trauma suffered in 1968, if indeed the knee was injured in that accident. Mr Penfold’s evidence as to a knee injury in that accident is inconsistent. On this basis, we prefer the opinion of Dr McGill and conclude that the osteoarthritis in Mr Penfold’s knee is not related to the 1968 accident.
57. It follows that it is unnecessary to consider the question of notice under section 16 of the 1930 Act.
decision
Application N2003/1920
58. The application, having been rendered abortive by the decision of 23 March 2005, (application number N2005/377), is dismissed.
Application N2005/377
59. The decision under review, dated 23 March 2005, is varied as follows:
i) That aspect of the decision that refuses lump sum compensation in respect of Mr Penfold’s back is affirmed.
ii) That aspect of the decision that assesses the compensation to be paid to Mr Penfold in respect of his right side sciatica is set aside and the matter is remitted to the Respondent for calculation of the amount of lump sum compensation to be paid to Mr Penfold with directions that Mr Penfold has a permanent impairment of his right leg of 20% which occurred on 30 June 1974.
Application N2005/640
60. The decision under review, dated 17 May 2005, is affirmed.
costs
61. Section 67(1) of the SRC Act provides that costs incurred by a party to a proceeding for review of a reviewable decision shall be borne by that party, subject to other provisions of the section.
62. Section 67(8) provides that where the Tribunal varies a decision under review or sets the decision aside and makes a decision more favourable to an applicant, then the costs of the applicant are to be paid by the determining authority (the Respondent). In application number N2005/377, we varied part of the decision under review so as to determine a later date for assessment of lump sum compensation. This will produce a decision more favourable to Mr Penfold. Accordingly, his costs of the proceedings in N2005/377 should be paid by the Respondent as agreed or taxed.
63. Section 67(2) of the SRC Act provides that where a proceeding in respect of a reviewable decision relating to a determination is rendered abortive because a determining authority has, following reconsideration, made a decision “varying or revoking that determination”, the determining authority is liable for the costs of the applicant in that proceeding. This provision concerns those circumstances where a concession has been made, on reconsideration, by a determining authority – that is, where the determination sought to be challenged is varied or revoked. The decision of 23 March 2005 affirmed the decision of 29 October 2003. It neither varied nor revoked it but it made the proceeding that concerned that decision redundant. Accordingly there is no liability of the Respondent to meet Mr Penfold’s costs under section 67(2) of the SRC.
I certify that the 63 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member and Dr M Thorpe, Member.
Signed: ..........[Linda Blue].....................................
AssociateDates of Hearing 23, 24 and 25 November 2005
Date of Decision 3 February 2006
Counsel for the Applicant Mr D Richards
Solicitor for the Applicant KCI Lawyers
Counsel for the Respondent Mr M Best
Solicitor for the Respondent Sparke Helmore Solicitors
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