Pollard and Comcare
[2003] AATA 302
•1 April 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 302
ADMINISTRATIVE APPEALS TRIBUNAL )
) Q2001/155
) Q2001/891
GENERAL ADMINISTRATIVE DIVISION ) Re AMANDA JULIE POLLARD Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President Don Muller Date1 April 2003
PlaceBrisbane
Decision The Tribunal affirms the decisions that no further amounts of compensation are payable to the Applicant.
...............Signed................................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
WORKERS COMPENSATION – impairments flowing from discrete injuries suffered at different times – each individual impairment less than 10%
Safety, Rehabilitation and Compensation Act 1988: s24(3), (4), (5), (6), (7), 25(4)
Comcare v Roser [2003] FCA 243 (25 March 2003)
REASONS FOR DECISION
Deputy President Don Muller 1.This is an application to review two decisions, namely:
(i)Q2001/155: The reviewable decision dated 29 January 2001 disallowed the Applicant’s compensation claim for permanent impairment resulting from a right shoulder injury that occurred on 26 October 1997 whilst triathlon training. The review delegate was not satisfied that the Applicant had suffered an assessable permanent impairment of her right shoulder under the Guide to the Assessment of the Degree of Permanent Impairment (“the approved Guide”). The review delegate relied on a report from Dr. Peter Boys (orthopaedic surgeon) dated 22 October 1999 where he stated that “utilising table 9.1 and 9.4 no assessable [impairment] would be quantified”.
(ii)Q2001/891: The reviewable decision dated 26 September 2001 disallowed the Applicant’s compensation claim for permanent impairment resulting from a neck injury that occurred on 10 December 1998 when struck by a dog chain. The review delegate was not satisfied that the Applicant had suffered a compensable degree of permanent impairment of her neck under the approved Guide. The review delegate relied on a report from Dr. Francis Tomlinson (neurosurgeon) dated 30 June 2000 where he stated that “using table 9.6 Miss Pollard has a 5% whole person impairment of the cervical spine”.
2.The parties prepared an “Agreed Statement of Facts”.. Consequently, the Tribunal finds that:
(i)The Applicant is 23 years of age and was formally a Member of the Australian Armed Forces.
(ii)The Applicant enlisted in the Australian Armed Forces on 23 January 1996.
(iii)On 25 February 2000 the Applicant was discharged from the Australian Armed Forces as medically unfit.
Q2001/155: 26 OCTOBER 1997 RIGHT SHOULDER INJURY
(iv)On 26 October 1997 the Applicant sustained a right shoulder injury during the course of triathlon training at the Enoggera Army Base.
(v)On 4 August 1999 the Applicant completed a claim for rehabilitation and compensation in respect to her right shoulder injury.
(vi)In a determination dated 4 November 1999 liability was accepted with respect to the Applicant’s right shoulder injury, arising out of, or in the course of, her military service, namely, “intermittent symptomatic tendonitis right rotator cuff of the right shoulder” that occurred on 26 October 1997.
(vii)On 10 November 1999 the Applicant completed a benefit election form claiming compensation for a permanent impairment resulting from her right shoulder injury.
(viii)The determination dated 10 May 2000 disallowed the Applicant’s compensation claim for permanent impairment resulting from her right shoulder injury.
(ix)By letter dated 14 June 2000 the Applicant, through her solicitors, requested a reconsideration of the determination dated 10 May 2000.
(x)The reviewable decision dated 29 January 2001 affirmed the determination dated 10 May 2000.
Q2001/891: 10 DECEMBER 1998 NECK INJURY
(xi)On 10 December 1998 whilst unloading a truck, during the course of her employment in Canberra, the Applicant was struck over the right forehead by a dog chain, causing her to fall unconscious, thereby injuring her neck.
(xii)On 4 August 1999 the Applicant completed a claim for rehabilitation and compensation in respect of the 10 December 1998 head injury.
(xiii)In a determination dated 26 October 1999 liability was accepted with respect to the Applicant’s head injury, arising out of, or in the course of, her military service, namely “central forehead facial laceration and short-term memory deficit” that occurred on 10 December 1998.
(xiv)On 27 October 1999 the Applicant completed a benefit election form claiming compensation for a permanent impairment resulting from her head injury.
(xv)The determination dated 25 January 2000 disallowed the Applicant’s compensation claim for permanent impairment resulting from her head injury.
(xvi)On 20 November 2000 the Applicant completed a claim for rehabilitation and compensation in respect of a neck impairment which she attributed to the 10 December 1998 head injury.
(xvii)In a determination dated 26 April 2001, liability was extended to include “hyperextension injury of the cervical spine without bone injury” as a result of the injury that occurred on 10 December 1998.
(xviii)On 15 May 2001 the Applicant completed a benefit election form claiming compensation for a permanent impairment resulting from her neck injury.
(xix)The determination dated 3 August 2001 disallowed the Applicant’s compensation claim for permanent impairment resulting from her neck injury.
(xx)By letter dated 26 September 2001 the Applicant, through her solicitors, requested a reconsideration of the determination dated 3 August 2001.
(xxi)The reviewable decision dated 26 September 2001 affirmed the determination dated 3 August 2001.
3.The parties agreed, and the Tribunal finds that the available medical evidence is to the following effect:
(i)In a report dated 22 October 1999 Dr. Peter Boys (orthopaedic surgeon) assessed the Applicant as suffering:
· no assessable right shoulder impairment under Table 9.1 or 9.4 of the approved Guide as a result of the 26 October 1997 triathlon training injury; and
· a 5% Table 9.6 cervical spine permanent impairment under the approved Guide as a result of the 10 December 1998 injury.
(ii)In a report dated 30 June 2000 Dr Francis Tomlinson (neurosurgeon) assessed the Applicant as suffering:
· a 5% Table 9.1 right shoulder permanent impairment under the approved Guide as a result of the 26 October 1997 triathlon training injury; and
· a 5% Table 9.6 cervical spine permanent impairment under the approved Guide as a result of the 10 December 1998 injury.
4.The respondent accepted, for the purposes of this review only, Dr. Tomlinson’s assessment of 5% Table 9.1 right shoulder permanent impairment.
5.The Applicant had previously been injured during the course of her duties in the Army in 1996. She injured her lower back and her hips. She claimed compensation for permanent impairment. Her claim was accepted by a decision dated February 2001, which contained the following:
“I refer to your application for a lump sum payment for permanent impairment for a lower back and bilateral hip condition and to your acceptance of the offer.
On the basis of the evidence, I determine that you have suffered a whole person permanent impairment as a result of your compensable injury and that the degree of impairment is 5% under Table 9.6 and 10% under Table 9.5. Using the combining Table 14.1 this equates to a 15% whole person impairment.
The total amount of compensation payable has been assessed as $33,562.90 which consists of $17,473.05 under Section 24 of the Act for impairment, plus $16,089.85 under Section 27 of the Act for the non-economic loss component.”
6.Sections 24(3), (4), (5) and (6) of the Safety, Rehabilitation and Compensation Act 1988 (the Act) provide for the method of working out the degree of permanent impairment and the use of the Guide.
“24(3) [Amount assessed] 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.
24(4) [Percentage] 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).
24(5) [Approved Guide] Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
24(6) [Percentage] The degree of permanent impairment shall be expressed as a percentage.”
7.Section 24(7) of the Act provides that compensation is not payable where the degree of permanent incapacity is less than 10%.
“24(7) [Where degree of permanent impairment less than 10%] 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.”
8.Section 25(4) of the Act, provides that for subsequent increases in the degree of impairment, no further compensation is payable unless the increase in the degree of impairment is 10% or more.
“25(4) [Increased impairment] 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.”
9.The Guide allows for separate percentage scores to be allocated to each functional impairment. It also provides for the method by which the various percentage scores should be combined to give a percentage value to the employee’s whole body impairment.
“Combined Impairments
It is important to realise that impairment is system or function based and that a single injury or disease may give rise to multiple loss of function. When more than one table applies to a single injury separate scores should be allocated to each functional impairment. Where two or more injuries give rise to the same impairment a single rating only should be given.
Double Assessment
The possibility of double assessment for a single loss of function must be guarded against. For example it would be inappropriate to assess a lower limb amputation by reference to both the amputation table (9.3) and the lower extremity table (9.2).
Where an employee suffers from more than one impairment the values are not added but are combined using the Combined Values Table. The purpose of this table is to give the total effect of all impairments, according to a formula, as a percentage value of the employee’s whole bodily system or function (see Table 14).”
10.During the course of the hearing, Counsel canvassed the following possibilities as the method to be used assessing the compensation payable for the Applicant’s 5% permanent impairment due to her shoulder and her 5% permanent impairment due to her neck:
(i)Each value is less than 10%. Therefore, no compensation is payable for either of the injuries.
(ii)Using Table 14.1, a combined impairment of 5% plus 5%, gives 10%. Therefore, the Applicant is entitled to compensation which corresponds to 10%.
(iii)There has been a previous assessment of 15%. Using Table 14.1 and adding 5% plus a further 5%, gives a combined total of 23%. This is less than an increase of 10% on the 15% already assessed. Consequently, no further compensation is payable.
11.Counsel for the Applicant submitted that option 10(ii) is the appropriate method. Counsel for the Respondent submitted that option 10.(i) is appropriate.
12.At the date of this hearing it came to the notice of the Tribunal that a case involving the same point had previously been heard but not at that stage determined by the Tribunal. That case involved Deslie Roser, Applicant, and Comcare. The Tribunal delivered a decision in the case of Roser on 29 May 2002, and subsequently both parties appealed to the Federal Court. The Federal Court delivered the judgment in Comcare v Roser on 25 March 2003. [Comcare v Roser [2003] FCA 243]. In his reasons for judgment, Spender J said (among other things):
“1 Deslie May Roser was an enlisted member of the Australian Army from 16 July 1986 to 20 February 2000. On 15 August 1986 she injured both knees, to which her military service was a contributing factor, and it was determined by a Comcare delegate that the bilateral knee condition resulted in a 20% whole person impairment. On 11 February 1992 she injured her back, which is said to have occurred in work-related circumstances. An assessment of her thoracic lumbar spine condition by a Comcare delegate was that she had a 5% whole person impairment deriving from that injury.
2 Ms Roser contends that she is entitled to receive lump sum compensation on the basis that the percentage values of the levels of impairment for her back injury (5%) and the earlier knee injury (20%) should be combined pursuant to Table 14.1 (Combined Values Chart) of the Guide to the Assessment of the degree of Permanent Impairment ("the Comcare Guide”) prepared pursuant to s 28(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the Act”), thus increasing her compensable level of whole person impairment from 20% to 24%.
3 Comcare, on the other hand, contend that Ms Roser was entitled to receive lump sum compensation at the level of 20%, being the whole person impairment in respect of the bilateral knee condition which, as a defined injury resulting in greater than 10% whole person impairment, satisfies s 24(1) of the Act.. However, Comcare contends that the bilateral knee condition and the back condition are discrete injuries arising out of separate events. Relying on s 24 (7) of the Act which provides:
“Subject to section 25, where Comcare determines that the degree of permanent impairment of the employee is less than 10% an amount of compensation is not payable to the employee under this section”.
Comcare contends that since the thoracic lumbar spine condition involved whole person impairment of less than 10%, no compensation is payable in respect of her back condition.
……
31 However, in my opinion, the Act is based on the notion that each work related injury creates a liability in the Commonwealth to pay compensation.
32 In my opinion, where there are discrete incidents, each resulting in injury or injuries, the Act does not contemplate a single whole person impairment, to be arrived at by considering the combined effect of the separate whole person impairments attributable to each set of injuries.
…..
37 In the view I take of the matter, if there are two incidents, each involving injury or injuries, there are discrete liabilities for each injury, the extent of which has to be determined discretely. A single injury may result in multiple impairments (which then have to be “combined” under Table 14.1), and multiple injuries may result in a single impairment. An example of the latter is the injuries sustained to Ms Roser’s knees in 1986.
….
42 In my judgment, s 24(1) of the Act provides for compensation for “an injury”. If that injury results in multiple impairments, the impairment to the whole person is to be arrived at. If there is more than one injury occasioned as a result of a single event or incident, then there are separate and discrete liabilities in respect of each injury. Thus, if a person were made blind and lost the use of the lower right arm as the result, say, of a grenade exploding, there are two separate injuries and person suffering them is entitled under the Act to compensation for each of them. The compensation for each injury is to be assessed by reference to the degree of impairment to the whole body that flows from each injury, and that degree of impairment may require consideration of the combined effect of separate impairments flowing from the same injury.
43 In my opinion, the same result follows a fortiori where there are separate incidents leading to discrete injuries, as is the case here.
44 If, in the present case, the degree of impairment in respect of the back injury was 10%, in my judgment Ms Roser would be entitled to compensation on the basis of a 20% whole person impairment flowing from the injury to her knees, and would be entitled to compensation on the basis of the 10% whole person impairment resulting from the injury to her back. There would not be any requirement to consider what would be the combined effect of the impairments flowing severally from her bilateral knee condition and from her thoracic spine condition. Each injury generates a separate liability in the Commonwealth, and it seems to me there is no obligation, either in justice or in law, why one should be required to have regard to the combined impairment to the person, having regard to the several impairments to the whole person flowing from each injury.
45 It is only the circumstance that the degree of impairment resulting from the back injury is less than 10% that drives the present appeal to the Federal Court. In my view, the real complaint by Ms Roser is not that she is being denied recognition of the fact that her whole person impairment is 24%; it is that the degree of impairment flowing from her back injury is less than 10%, and it is unfair that she should not therefore be compensated in respect of it.
46 For the above reasons, I would allow the appeal and set aside the orders of the Tribunal made on 29 May 2002. The consequence is that the operative decision is that of the delegate made on 22 November 2000. The delegate then decided:
“Your solicitor has requested that your impairments for the knees and the back be combined under table 14.1, to give a total WPI of 24%, and that therefore you are entitled to a further lump sum payment. Table 14.1 can only be applied however where a single injury (or cause) results in two or more impairments.”
And
“As your separate conditions do not result from the same cause, table 14.1 can not be applied. Your lump sum entitlements have therefore been correctly calculated and no further lump sum compensation can be awarded.”
13.The degree of impairment flowing from Ms. Pollard’s right shoulder injury is 5%, which is less than the threshold 10% and consequently, no compensation is payable for permanent impairment pursuant to the Act.
14.The degree of impairment flowing from Ms. Pollard’s cervical spine injury is 5%, which is less than the threshold 10%, and consequently, no compensation is payable for permanent impairment, pursuant to the Act.
15.The decisions under review are affirmed.
I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller.
Signed: .......................................................................................
C. O’Donovan, AssociateDate/s of Hearing 1 March 2002
Date of Decision 1 April 2003
Solicitor for the Applicant D’Arcys
Counsel for the Applicant Ms. Heyworth-Smith
Solicitor for the Respondent Sparke Helmore
Counsel for the Respondent Mr. R. Dickson
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