Roser and Comcare
[2002] AATA 402
•29 May 2002
DECISION AND REASONS FOR DECISION [2002] AATA 402
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/490
GENERAL ADMINISTRATIVE DIVISION )
Re DESLIE ROSER
Applicant
And COMCARE
Respondent
DECISION
Tribunal Mr IR Way, Member
Date29 May 2002
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and determines: (a) that the applicant's rate of permanent impairment is assessed at 24%; and (b) that the increase in the degree of the applicant's permanent impairment, as a result of her back injury is 4% and no further amounts of compensation are payable to the applicant in respect of this increase in permanent impairment.
..............................................
Mr I R Way
Member
CATCHWORDS
COMPENSATION – permanent impairment – separate injuries – whether Combined Value Table can be used for two separate injuries – whether there is an increase in whole person impairment rating – whether further compensation payable
Safety, Rehabilitation and Compensation Act 1988, ss 24, 25
Acts Interpretation Act 1901, s 23
Guide to the Assessment of the Degree of Permanent Impairment
Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651
Re Mihajlovic and Comcare (1999) AATA 339
Brennan v Comcare (1994) 50 FCR 555
Re Clarke and Comcare [1999] AATA 76
Comcare v Mihajlovic (2000) 170 ALR 420
Re Taylor and Comcare [2000] AATA 968
Johns v Connor (1992) 107 ALR 465
REASONS FOR DECISION
29 May 2002 Mr IR Way, Member
This is an application by Deslie May Roser (the applicant) for review of a decision of a delegate of the Military Compensation and Rehabilitation Service (under the Safety, Rehabilitation and Compensation Act 1988) made on 12 April 2001, which affirmed a decision made by a delegate on 22 November 2000 disallowing the applicant's claim for additional lump sum compensation for a permanent impairment resulting from the applicant's combined bilateral knee condition and back condition.
In affirming this decision the delegate noted that the applicant's bilateral knee condition and her back condition arose out of two separate accepted injuries and that compensation was previously paid to the applicant in respect of an accepted 20% whole person impairment resulting from the applicant's bilateral knee injury.
At the hearing the Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T49), an agreed statement of facts (Exhibit R1) and a chronology of the case (Exhibit R2). Ms CC Heyworth-Smith of Counsel appeared for the applicant and Mr CJ Clarke of Counsel appeared for the respondent. The matter proceeded by way of submissions only.
Agreed FactsBoth of the parties agreed to the following facts and the Tribunal so finds:
(a)The applicant is thirty-three years of age having been born on 1 June 1968. She enlisted in the Australian Army on 16 July 1986 and was discharged on medical grounds on 20 February 2000. She attained the rank of corporal.
(b)On 30 August 1999 the Applicant lodged a claim for compensation in respect of a "left and right knee" condition, claimed to have resulted from basic training and work-related activities. On 8 November 1999 a delegate of the Respondent determined that the applicant has suffered a contraction of a disease to which military service was a contributing factor, namely, tears of the front half of both lateral menisci and degenerative changes to both knees. The date of the injury for the purposes of the Act was determined as 15 August 1986.
(c)On 4 January 2000 the applicant made application for lump sum payment of compensation for permanent impairment in respect of the bilateral knee condition. On 10 March 2000 a delegate of the respondent determined that the applicant had a 20% whole person impairment in respect of the bilateral knee condition.
(d)On 7 March 2000, the respondent having made a final assessment of the degree of permanent impairment suffered by the applicant, informed the applicant (T.22, p149) that the amount of $35,758.34 (less some minor reductions) was payable by way of lump sum in respect of a permanent impairment arising from her bilateral knee condition.
(e)On 8 March 2000, the applicant elected to receive the sum of lump sum compensation referred to above for permanent impairment.
(f)On 30 August 1999 the applicant lodged a claim for compensation in relation to a back condition, claimed to have resulted from an injury which occurred in work-related circumstances on 11 February 1992.
(g)On 28 April 2000 a delegate of the respondent determined that the applicant had suffered a contraction of a disease to which military service had contributed in a material degree, namely, thoracic spondylosis. The applicant applied for lump sum compensation for permanent impairment in respect of the said condition.
(h)On 31 May 2000 a delegate of the respondent determined that there was no liability to pay lump sum compensation for permanent impairment for a thoracic spondylosis condition.
(i)The applicant requested a reconsideration of that decision and, in support of that request, provided a report of Dr Parsons, Orthopaedic Surgeon, dated 12 August 2000. In that report Dr Parsons assessed the applicant as having a 5% whole person impairment deriving from her thoracic lumbar spine condition pursuant to Table 9.6 of the Comcare Guide.
(j)On 22 November 2000 a delegate of the Respondent affirmed the decision under review.
Issues
It was common ground that the issues which concerned the Tribunal are essentially legal ones as to the interpretation of the relevant sections of the Safety Rehabilitation and Compensation Act 1988 (the "Act"); the Comcare Guide to the Assessment of the Degree of Permanent Impairment (the "Comcare Guide"); and s 23 of the Acts Interpretation Act 1901.
In summary the applicant contends that she is entitled to receive lump sum compensation in respect of her back injury on the 11 February 1992, on the basis that the percentage values of the levels of impairment for this later injury (5%) and an earlier knee injury (20% - which occurred in 1986) should be combined pursuant to Table 14.1 (combined values chart) of the Comcare Guide thus increasing her compensible level of whole person impairment from 20% to 24%.
The questions before the Tribunal are:
(a)Does the fact that the impairment to the applicant's back arose from a different cause to the impairment to her knees preclude the use of the combined values table in the Comcare Guide;
(b)If not, does the fact that the impairment to the applicant's back being less than 10% preclude the use of the combined table; and
(c)If not, is a further amount of compensation payable to the applicant in respect of a subsequent increase in the degree of impairment?
Legislative Framework
The relevant provisions of the Act, the Comcare Guide and the Acts Interpretations Act 1901 are as set out below:
Safety Rehabilitation and Compensation Act 1988
Interpretation4 (1) In this Act, unless the contrary intention appears:
'approved Guide' means:
(a)the document, prepared by Comcare in accordance with section 28 under the title 'Guide to the Assessment of the Degree of Permanent Impairment', that has been approved by the Minister and is for the time being in force; and
(b)if an instrument varying the document has been approved by the Minister – that document as so varied;
'disease' means:
(a)any ailment suffered by an employee; or
(b)the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth;
'impairment' means 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;
'injury' means:(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;
'permanent' means likely to continue indefinitely;Injury arising out of or in the course of employment
6 (1) Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
…
(b) while the employee:(i)was at his or her place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment;
Compensation for injuries resulting in permanent impairment
24 (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 purpose 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
…
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
…
(7) Subject to section 25 where Comcare determines that the degree of impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section.
Interim payment of compensation
25 (1)Where Comcare:
(a)makes a determination that an employee is suffering from a permanent impairment as a result of an injury; and
(b)is satisfied that the degree of the impairment is equal to or more than 10% but has not made a final determination of the degree of impairment;
Comcare shall, on the written request of the employee made at any time before the final determination is made, make an interim determination of the degree of permanent impairment under section 24 and assess an amount of compensation payable to the employee.
(2) The amount assessed by Comcare under subsection (1) shall be an amount that is the same percentage of the maximum amount specified in subsection 24(9) as the percentage determined by Comcare under subsection (1) to be the degree of permanent impairment of the employee.
(3) Where, after an amount of compensation has been paid to an employee following the making of an interim determination, Comcare makes a final determination of the degree of permanent impairment of the employee, there is payable to the employee an amount equal to the difference (if any) between the amount payable under section 24 on the making of the final determination and the amount paid to the employee under this section.
(4) Where Comcare has made a final assessment of the degree of permanent impairment of an employee, no further amounts of compensation shall be payable to the employee in respect of subsequent increase in the degree of impairment, unless the increase is 10% or more.
Approved Guide
28 (1)Comcare may, from time to time, prepare a written document, to be called the 'the Guide to the Assessment of the Degree of Permanent Impairment', setting out:
(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 a 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."
Comcare Guide
Impairment means "the loss, loss of use, damage or malfunction, of any part of the body, bodily system or function or part of such system or function". It relates to the health status of an individual and includes anatomical loss, anatomical abnormality, physiological abnormality and psychological abnormality. Throughout this guide emphasis is given to loss of function as a basis of assessment of impairment and as far as possible objective criteria have been used.
The Impairment Tables
Part A of the Guide is based on the concept of 'whole person impairment' which is drawn from the American Medical Association's Guides.
Evaluation of a whole person impairment is a medical appraisal of the nature and extent of the effect of an injury or disease on a person's functional capacity and activities of daily living.
As with the American Medical Association's Guides, Part A of this guide is structured by assembling detailed descriptions of impairments into groups according to body system and expressing the extent of each impairment as a percentage value of the functional capacity of a normal healthy person. Thus a percentage value can be assigned to an employee's impairment by reference to the relevant description in this guide.
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).
Interim Assessments
To ensure that the possibility of entitlement to a permanent impairment payment does not impede the rehabilitation process provision is made for interim assessment and payment of compensation.
Assessment for an interim payment will apply mainly in cases undergoing active treatment where the final outcome of the treatment is not known but a minimum permanent impairment can be measured. Care should be taken to ensure that further treatment will not reduce the impairment which must be at least 10%. Interim payment will generally not apply where the impairment has stabilised or where the only change in impairment would be due to progressive degeneration.Acts Interpretation Act 1901
Rules as to gender and number
23.In any Act, unless the contrary intention appears:
(a) words importing a gender include every other gender; and
(b) words in the singular number include the plural and words in the plural number include the singular.
Summary of Submissions
Ms Heyworth-Smith, for the applicant, submitted that while s 24(5) of the Act speaks of "an injury" there is nothing in the section, or in the context of the section, which would displace the presumption of plurality pursuant to s 23 of the Acts Interpretation Act 1901; and that therefore s 24(5) can equally be read as referring to "injuries". In considering this matter, the Tribunal was referred to Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651.
Ms Heyworth-Smith further submitted that following the decision in Re Mihajlovic and Comcare [1999] AATA 339 the impairments to the applicant's knees and back should be considered under Table 14.1 of the Comcare Guide to give a 24% impairment and that such an approach would be consistent with the legislative intent demonstrated by ss 24 and 25 of the Act and the Comcare Guide which is based on the "whole person concept"; and that had the legislature intended that separate injuries be dealt with separately, it could have indicated that intention expressly.
With respect to whether a final assessment has been made of the applicant's back condition and the need for a 10% increase in impairment for further amounts of compensation to be paid to the applicant, it was submitted that in this case the final assessment to which s 25(4) applies has not yet been made and as such s 25(4) does not negate the existence of a 5% impairment of the applicant's back. The Tribunal was asked to note that the applicant's two claims were made on the same day, 30 August 1999, and had the 5% impairment of the applicant's back been determined first then there would have been no entitlement to compensation. And if the applicant was then assessed as having a 20% impairment to her knees s 25(4) would not apply and the applicant would be entitled to compensation based on a combined figure of 24%.
It was submitted that the decision under review should be set aside and in substitution therefore the decision should be that the applicant be compensated for a 24% whole person impairment.
Mr Clarke, for the respondent, submitted that the scheme of the Act and the Comcare Guide is such that it is not permissible to combine the percentage values of a level of impairment for compensible injuries which have arisen from separate work related injuries, in turn arising from separate incidents.
Alternatively, it was submitted that the applicant is not entitled to further compensation pursuant to s 25(4) of the Act because the later injury does not amount to a subsequent increase in the degree of permanent impairment of 10% or more in circumstances where Comcare has made a final assessment of the degree of permanent impairment.
With respect to the meaning of the phrase "an injury" in s 24(5) the Tribunal was taken to a number of provisions in the Act where the singular form was used in connection with "an" or "a injury" (ss 4, 6(1) & (3), 6A(1), 7(1), (2), (4), (6), (7), 48, 50); and it was submitted that the language of these provisions make it clear that each entitlement to compensation under the Act is to be considered separately by referring to each work related injury. Since the Act provides that separate and distinct compensation consequences flow from each injury, the result is that permanent impairment arising from separate injuries should not be combined under Table 14.1; and that this view is supported by the principles of assessment contained in the Comcare Guide.
It was submitted that Table 14.1 only applies where a single injury gives rise to multiple impairments.
In support of these submissions the Tribunal was referred to Brennan v Comcare (1994) 50 FCR 555 where his Honour Justice Burchett in paragraphs 1, 2 and 3 of the judgement commented on the construction of ss 24 and 25 of the Act.
With respect to the Tribunal's consideration of the application of s 24(5) of the Act, the Tribunal was referred to Re Clarke and Comcare [1999] AATA 76, Comcare v Mihajlovic (2000) 170 ALR 420 and Re Taylor and Comcare [2000] AATA 968. It was submitted that the respondent had made a final assessment of 20% for the applicant's impairment of her knees and that following the approach of his Honour Justice Finn in Comcare v Mihajlovic (supra) the applicant cannot show the required increase of 10% or more in the degree of her permanent impairment.
Consideration and Findings
Turning to the first question as stated in paragraph 7 it was submitted for the applicant that the two impairments, namely the bilateral knee condition (20% impairment) and the back condition (5% impairment), should be considered together using Table 14.1 (the Combined Values Table) to arrive at a whole person impairment of 24%.
The applicant's case was put on the basis that there was nothing in s 24(5) of the Act or in the context of the section, which would displace the presumption afforded by s 23 of the Acts Interpretation Act 1901 that the words "an injury", include the plural "injuries" and this being so the applicant's impairments which arose from separate injuries should be combined using Table 14.1 of the Guide in conformity with the principles of assessment in the Comcare Guide, namely:
"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)
With respect to the consideration of the question of plurality of the phrase "an injury" the Privy Council in Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651 relevantly stated (at 656):
"It follows that the mere fact that the reading of words in a section suggests a emphasis on singularity as opposed to plurality is not enough to exclude plurality. Words in the singular will include the plural unless the contrary intention appears. But in considering whether a contrary intention appears there need be no confinement of attention to any one particular section of the Act. It must be appropriate to consider the section in its setting in the legislation and furthermore to consider the substance and tenure of the legislation as a whole."
And further in Johns v Connor (1992) 107 ALR 465 at 473, Lockhart J said:
"The purpose of s 23 and the principles that govern its application have been referred to in many cases, but the following oft cited passage from the judgment of the Judicial Committee of the Privy Council in Blue Metal Industries Ltd v Dilley [1970] AC 827 at 846–7 is apt:
'By s 21 of the Interpretation Act, 1899 (NSW), it is enacted that in all Acts, unless the contrary intention appears, words in the singular shall include the plural and words in the plural shall include the singular. Such a provision is of manifest advantage. It assists the legislature to avoid cumbersome and over-elaborate wording. Prima facie it can be assumed that in the processes which lead to an enactment both draughtsman and legislators have such a provision in mind. If follows that the mere fact that the reading of words in a section suggests an emphasis on singularity as opposed to plurality is not enough to exclude plurality. Words in the singular will include the plural unless the contrary intention appears. But in considering whether a contrary intention appears there need be no confinement of attention to any one particular section of an Act. It must be appropriate to consider the section in its setting in the legislation and furthermore to consider the substance and tenor of the legislation as a whole. (See Sin Poh Amalgamated (HK) Ltd v Attorney-General of Hong Kong [1965] 1 WLR 62). In that case a test was indicated which often may be helpful. In the judgment of the board delivered by Lord Pearce it was said, at 67:
The Interpretation Ordinance was intended to avoid multiplicity of verbiage and to make the plural cover the singular except in such cases as one finds in the context of the legislation reason to suppose that the legislature, if offered such amendment to the bill, would have rejected it.' "
After consideration of the submissions of both parties and within the context of the authorities cited above, the Tribunal is of the view that the use of the singular throughout the Act and as referred to by the respondent does not displace the presumption of plurality and the Tribunal accepts the applicant's submission that there is nothing in s 24 or in the context of the section or Act which would prevent s 24(5) being equally read as follows:
"Comcare shall determine the degree of permanent impairment of the employee resulting from injuries under the provisions of the approved guide."
Turning then to the question as to whether Table 14.1 of the Comcare Guide should be used to determine the degree of the combined percentage of impairment where the impairments arise from separate injuries.
The Tribunal in the matter of Re Mihajlovicand Comcare (supra) has cogently and comprehensively addressed the question of the interpretation of ss 24(5) and 25(4) of the Act and the use of Table 14.1 of the Comcare Guide. The following paragraphs from that decision are helpful in the consideration of this matter.
"34. The Tribunal also notes for comparative purposes the provisions of the AMA Guide, fourth edition, June 1993, where it states at Chapter 1 page 1:
"Impairment is defined in the Guides as an alteration of an individual's health status. Impairment, according to the Guides, is assessed by medical means and is a medical issue. An impairment is a deviation from normal in a body part or organ system and its functioning."
and further at Chapter 2, page 8 (inter alia):
"If the physician believes that the patient has two significant, unrelated conditions and that the extent of each should be estimated, this may be done. The whole person impairment estimates for two separate conditions then would be combined into an overall impairment estimate using the Combined Values Chart." (Tribunal emphasis)
Hence, the Tribunal notes that this approach is also consistent with the overall theme of the assessment of the whole person impairment.
35. The Tribunal once again feels compelled to express its dismay at the inadequacy of the Guide and notes similar expressions of dismay in many previous Tribunal decisions, and the apparent lack of attention paid by Comcare to these expressions. The Tribunal notes for comparative purposes that the provisions of the AMA Guide referred to above make the process of determining permanent impairment much clearer and easier to do, and avoid the constant need for litigation in respect of the ambiguities of the Guide. The Tribunal considers that the comment at Chapter 2, page 7, of the AMA Guide can be applied to the current Australian situation:
"Compare this approach with some impairment evaluations wherein physicians examine and report on patients without a standard protocol. In such instances, it is impossible to compare reports, because there is no assurance that the physicians have examined the same body part or systems in the same way…
Without standardisation of evaluations and reporting procedures, an individual reading these reports would have difficulty deciding which report to believe. This outcome is neither reasonable nor fair, and it tends to give rise to unavoidable confrontation" (Tribunal emphasis)36. The Tribunal notes the words of Justice Burchett in Brennan v Comcare (1994) 50 FCR 555 (p.561):
"It would be impossible, in construing beneficial legislation, to reject the literal effect in favour of restricting the availability of the benefits. Even if ambiguous, the Act should be construed generously, and certainly its literal meaning should not be confined without very clear warrant."
The Tribunal feels that it must, with respect, distinguish the scenario of ambiguity raised in Brennan from the present. The Tribunal concurs entirely with the sentiment expressed in Brennan in respect of how to apply beneficial legislation, and indeed applies this approach in relation to s.25(4) of the Act, discussion of which follows below. With respect to the interpretation of s.24(5) of the Act, however, the Tribunal finds that, beyond the concern to construe beneficial legislation generously, it must first construe the legislation in a manner which ensures that consistent results can be reached which accord with common sense and with the legislative purpose of the Act. These must be the primary concerns of the Tribunal in legislative interpretation.
37. … The Tribunal considers, therefore, that the overriding legislative intent in this instance is the determination of the degree of permanent impairment of an individual that arises from work injuries, and that this consideration must take precedence over the literal interpretation of the phrase an injury. The Tribunal is being asked to consider the extent of the applicant's impairment due to her work related injuries, and therefore it is common sense in terms of the Act to assess her degree of whole person impairment arising from the work injuries as being the total combination of these impairments. This necessitates, therefore, the use of Table 14.1 of the Guide in order to combine these impairments as an overall degree of whole person impairment.
38. The Tribunal considers that its overriding approach with respect to legislative interpretation must be "common sense", and the Tribunal notes the High Court decision in March v Stramare (1991) 171 CLR 506, where the court directed that causation with respect to the Act was to be determined by a common sense approach, and that this approach has been followed by the Tribunal in previous matters. The Tribunal considers that in the interpretation of the Act in this case, it must also follow common sense. Common sense indicates to the Tribunal that in interpreting s.24(5) of the Act, the literal interpretation of the words an injury is not appropriate.
39. The Tribunal must consider the intention behind the inclusion of the Combined Values Chart at Table 14.1 of the Guide. The intention of this table of the Guide is similar to that expressed in the GARP, namely, to combine impairments so as to determine the overall percentage of whole person impairment. It also has the effect of ensuring that a percentage total of more than 100% is impossible, and this is its purpose.
With respect the Tribunal agrees with the approach in Re Mihajlovic and Comcare (supra) as outlined above and in doing so notes that on appeal to the Federal Court his Honour Justice Finn at paragraph 13 said:
"Having made the above individual percentage findings in respect of the respondent's shoulder injury and thoracic lumbar spine injury, the Tribunal concluded that in determining an employee's degree of permanent impairment for the purpose of calculating compensation under section 24, a combined assessment under Table 14.1 was to be made of all of the employee's impairments, whether or not those impairments arose out of the same or different injuries. The parties, I would note, have not put this interpretation of section 24 in issue and I express no opinion on it (though by so doing I imply no criticism of it.)"
The Tribunal is also mindful that the Minister for Industrial Relations, in tabling the approved Comcare Guide under the Act, made the point that a zero rating would represent normal health or well being, while a 100% rating would, in effect, represent death. And further that the guide provides for a combined impairment rating in the case of multiple impairments.
The Tribunal, in agreeing with the approach in Comcare v Mihajlovic (supra), has taken note of what Burchett J said in Brennan v Comcare (1994) 50 FCR 555 at 556:
"In this matter, I agree with the orders proposed by Gummow J, and subject as follows I agree generally with his reasons. However, as the consequence of our decision is that there will be a further hearing in the Administrative Appeals Tribunal, I think it is desirable to make some comments about the construction of the statute which the Tribunal will have to apply to the facts, and which will determine what findings of fact it will be relevant for the Tribunal to make.
Subsections (1) and (2) of s 24 of the Safety Rehabilitation and Compensation Act 1988 make general provision for Comcare's liability to pay compensation in respect of a permanent impairment, the degree of which Comcare is required to determine, expressing it as a percentage (see subss (5) and (6)). These provisions are concerned with the effect of an injury that produces a permanent impairment. They commence with the expression: 'Where an injury to an employee results in a permanent impairment' (emphasis added). It will be noticed that the compensation is paid (by virtue of subs (1))'in respect of the injury', not in respect of the impairment. And by subs (5), what is important for compensation is 'the degree of permanent impairment of the employee', not of a particular limb or organ. When, therefore, after an assessment, a later deterioration or further disability becomes apparent, the statutory regime is the same whether this new situation involves a further weakening of an affected limb or other part previously assessed, or a new disability manifesting itself in a different limb or part. In each case, it is necessary to consider whether there has been an 'increase in the degree of impairment' of the employee of 10% or more (see s 25(4) and cf s 24(7)).
By virtue of the definitions of 'permanent' and 'impairment' in s 4, a permanent impairment 'means 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' which is 'likely to continue indefinitely'. Little medical knowledge is required to appreciate that a particular injury, for instance a back injury, may lead to no loss of the use of particular parts of the body, or malfunction of them, for a period of years, after which loss of use and malfunction may appear in, for example, the left leg, and subsequently, after a further period, loss of use or malfunction may appear in the other leg. Sometimes, operative intervention to cure one problem may lead to another, both being sequelae of the original injury. In other cases, psychological factors may gravely affect an individual's condition. Long term disuse caused by pain, whether or not organically based, may produce physiological change. Sometimes, a single limb, for instance an arm, may be weakened by just enough to lead to a small assessment under s 24, and subsequently the weakness may very substantially increase. There is nothing in the terms of ss 24 and 25 to suggest that any distinction is to be drawn, in principle and so as to advantage one category or disadvantage another, between these various categories of injured persons. In all cases, the same test of 10% impairment of the person is applied."
The Tribunal is of the view that these comments do not stand in the way of its conclusion to agree with the approach taken in the Comcare v Mihajlovic (supra), whereby a combined assessment of an employee's degree of impairment, using Table 14.1 of the Guide, is to be made for impairments arising out of different injuries. Likewise the Tribunal has found no impediment to such an approach in the other cases referred to by the respondent.
The Tribunal is therefore satisfied that the impairment of the applicant's knees of 20% should be combined with the applicant's impairment of back of 5% using Table 14.1 of the Comcare Guide to arrive at whole person impairment of 24%.
Turning then to the question of the application or otherwise of s 25(4) in this matter. The first question to be determined is whether the respondent in paying compensation to the applicant for her bilateral knee condition made an interim payment pursuant to s 25 of the Act. For there to be an interim determination and payment there needs to be a written request from the applicant upon which the respondent makes an interim determination. As stated in the agreed facts (paras (c) and (d)) the respondent made a final assessment of the degree of permanent impairment suffered by the applicant, informed the applicant that the amount of $35,758.34 was payable by way of lump sum in respect of a permanent impairment arising from her bilateral knee condition and on 8 March 2000 the applicant elected to receive this sum of lump sum compensation for permanent impairment.
The Tribunal notes the submission for the applicant that in agreeing to these facts there was no agreement that s 25(4), with respect to the final assessment, had been satisfied. The Tribunal also notes the anomalous position that could have arisen in this case as outlined in paragraph 11 above.
However, after careful consideration of the submissions of both parties and the documentary evidence referred to in the agreed facts, the Tribunal finds that the respondent has made a final assessment of the degree of permanent impairment the applicant suffers as a result of her bilateral knee condition (20%) and that s 25(4) applies in this matter.
That being so and following the Tribunal's finding in paragraph 29 above that the applicant's combined impairment taking into account both injuries is 24%, no further amounts of compensation are payable to the applicant in respect of the subsequent increase of 4% in her degree of impairment and the Tribunal so finds.
For the reasons given above, the Tribunal sets aside the decision under review and determines:
(a)that the applicant's rate of permanent impairment is assessed at 24%; and
(b)that the increase in the degree of the applicant's permanent impairment, as a result of her back injury is 4% and no further amounts of compensation are payable to the applicant in respect of this increase in permanent impairment.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Mr IR Way, Member
Signed: .............................................................................
AssociateDate of Hearing 11 February 2002
Date of Decision 29 May 2002
For the Applicant Ms Heyworth-Smith
For the Respondent Mr Clarke
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