Ryan and Comcare - [2001] AATA 931

DECISION AND REASONS FOR DECISION [2001] AATA 931

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2001/252

GENERAL ADMINISTRATIVE DIVISION       )
           Re      JUNE DORIS RYAN
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date9 November 2001
PlaceCanberra

Decision The Tribunal has no jurisdiction to take into account the applicant's conditions of "musculo-ligamentous strain (myofascial syndrome) of the neck, back, shoulders and arms" and "depression and anxiety" in its review of the respondent's decision to deny liability for compensation for permanent impairment.

(Signed)
J.A. KIOSOGLOUS

(Senior Member)

CATCHWORDS
PRACTICE AND PROCEDURE – jurisdiction – permanent impairment – specific injuries not subject to section 14 determination – whether Tribunal can consider these injuries in its review of refusal of claim for permanent impairment.
Safety Rehabilitation and Compensation Act 1988 ss. 14, 24
Denison-Smith and Comcare [2000] AATA 553
Carson and Telstra Corporation [2001] AATA 648
Lees v Comcare (1999) 56 ALD 84
Telstra Corporation Limited v Barrow (1994) 35 ALD 461

REASONS FOR DECISION

9 November 2001 Senior Member J.A. Kiosoglous MBE

The matter was brought before the Tribunal at the request of the respondent's solicitors for the Tribunal to determine whether or not there exists a jurisdictional problem and if so, that the Tribunal give consideration to this prior to the hearing of the substantive matters. The issue in question at this time is whether the claim to be considered at the substantive hearing relates to an injury for which no determination has been made pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). The respondent claims that the applicant's section 24 permanent impairment claim for the conditions of "musculo-ligamentous strain (myofascial syndrome) of the neck, back and shoulders", and "depression and anxiety" has not had a section 14 determination made to enable it to be considered at the substantive hearing.
The applicant's solicitors indicated that compensation would be claimed for these injuries and that they do in fact form part of the claim having been part of a determination made on 28 February 2001 (T137) and a subsequent determination made on 28 March 2001 (T140). It was further submitted that the determination of 28 February 2001 is a determination specifically in relation to sections 24 and 27 of the Act.
The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T147). The applicant was represented by Mr W. Hawkins and the respondent was represented by Ms K. Kumar.
history of the application
On 1 May 1995 the applicant completed a form entitled "Claim for Rehabilitation and Compensation" (T3/5-9). The applicant described her injury on the claim form as "hand and wrist strain (R)" (T3/6). The applicant stated in the claim form that the injury happened on 6 February 1995 and that it was "due to repetitive keyboarding duties" (T3/7).
The respondent subsequently accepted liability for "musculo-ligamentous strain to right hand and wrist, aggravation of osteo-arthritis and bi-lateral carpal tunnel syndrome due to occupational overuse injury"(T37/85).
On 3 June 1999, the applicant completed a claim form entitled "Compensation Claim for Permanent Injury" (T88/187-188) in which she described her permanent injury/impairments to be "Chronic hand, wrist, arm, shoulder, neck and back pain. Persistent paraesthesia both hands. Reduced grip strength in both hands and mobility to carry out fine movements with finger ie reduced digital dexterity" (T88/187). On the same form, Dr Eaton stated that the diagnosis of the applicant's current condition was "Occupational overuse syndrome. Bilateral Carpal Tunnel Syndrome. Aggravated osteoarthritis. Musculoligamentous strain (myofascial syndrome) neck, back, shoulders and arms, hands and wrists." (T88/188). Dr Eaton further described the impairments which have resulted from the condition as "chronic pain and stiffness neck, upper back, both shoulders, arms, wrists and hands. Persistent paraesthesia both hands, weakness both hands R>L. Reduced grip strength and digital dexterity both hands R>L. Depression and anxiety as a result of chronic pain and reduced work capacity." (T88/188).
On 28 February 2001, a delegate of the respondent determined that the applicant was not entitled to compensation for permanent impairment and stated (inter alia) (T137/279-280):
"…
I refer to your claim for compensation in respect of, 'musculo-ligamentous strain to (R) hand and wrist, aggravation of osteo-arthritis and bi-lateral carpal tunnel syndrome due to occupational overuse injury'.
I also refer to your claim for compensation for permanent injury dated 3 June 1999 in respect of 'musculo-ligamentous strain (myfascial syndrome) of the neck, back, shoulders, arms, hands, and wrists; bi-lateral carpal tunnel syndrome; aggravation of osteo-arthritis; depression and anxiety'.
Having carefully considered this matter in light of the available medical evidence and the provisions of the Act, I hereby determine:
…
5. Liability does not exist for Comcare to pay any compensation under any section of the Act in respect of myofascial syndrome of the neck, back, shoulders, arms, hands, and wrists;
6. Comcare has not previously accepted liability under section 14 of the Act, in respect of depression and anxiety, therefore Comcare is not liable to pay compensation under section 24 of the Act in respect of that condition.
…"
In the respondent's statement of reasons accompanying the above determination, the delegate stated (inter alia) (T137-…):
"…
In respect of myofascial syndrome of neck, back, shoulders, arms, hands and wrists
Liability has not previously been accepted in respect of this condition. I must therefore be satisfied, that this condition arose out of the course of employment on 6 February 1995, or was materially contributed to by those duties, namely keyboard duties.
…
Although Dr Eaton has provided a diagnosis of myofascial pain syndrome effecting the neck, back, shoulders, arms, hands and wrist, he does not provide a discussion has to how he arrived at this diagnosis. In addition to this, the claimant's treating GP Dr Batagol provides no diagnosis of a myofascial pain syndrome in his medical certificate of 19 January 2001. In light of this, and given that Dr Whittaker has provided a detailed discussion including full details of the physical examination of the claimant, I am preferring the opinion of Dr Whittaker in which he opines there is no physical cause for the reported diffuse, severe and disabling pain, describing further that there is quite a dramatic component of the claimants symptomatology which is purely a reflection of embellishment.
In light of the available medical evidence, and in accordance with the provisions of the Act, I am satisfied on the balance of probabilities that the claimant does [sic] currently suffer from myofascial pain syndrome, and therefore Comcare is not liable to pay any compensation in respect of this condition.
In respect of depression and anxiety
The claimant also seeks lump sum compensation under section 24 of the Act in respect of depression and anxiety. As Comcare has never accepted liability for the condition 'depression and anxiety' under section 14 of the Act, the claimant cannot receive compensation under section 24 of the Act in relation to that condition."
On 17 May 2001, a Review Officer of the respondent reconsidered the decision dated 28 February 2001 which determined that there was no liability for permanent impairment and the decision of 28 March 2001 which determined that there was no longer liability to pay compensation to the claimant under any section of the Act in respect of a "musculo-ligamentous strain to right hand and wrist, aggravation of osteo-arthritis and bilateral carpal tunnel syndrome due to occupational overuse injury". In the Review Officer's reasons for decision, the Review Officer stated (inter alia) (T147/303-304):
"…
As I have found that the Claimant no longer suffers from carpal tunnel syndrome, and that there has ceased to be any causal connection between the employee's employment and her current condition, I find that no liability can arise pursuant to section 24 of the Act in respect of her claim for permanent impairment. (Lees v Comcare & Anor; Comcare v Matthews & Anor; Tony Denison-Smith v Comcare). Similarly as Comcare has not admitted liability for myofascial syndrome or depression and anxiety, it follows that there can be no liability for permanent impairment for these conditions.
Accordingly, I find that the Claimant is not entitled to payment of permanent impairment compensation under to section 24 of the Act.
…"
On 19 June 2001 the applicant lodged an application for review with the Tribunal requesting review (inter alia) of the above reconsideration of the respondent (T1/1-2).
legislation
The relevant legislation to be considered is as follows:
"PART II – COMPENSATION
Division 1 – Injuries, property loss or damage, medical expenses
Compensation for injuries
14.      (1)       Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2)       Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3)       Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.
…
Division 4 – Injuries resulting in impairment
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.
(3)       Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4)       The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5)       Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6)       The degree of permanent impairment shall be expressed as a percentage.
(7)       Subject to section 25, 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.
(8)       Subsection (7) does not apply to any one or more of the following:
(a)the impairment constituted by the loss, or the loss of the use, of a finger;
(b)       the impairment constituted by the loss, or the loss of the use, of a toe;
(c)the impairment constituted by the loss of the sense of taste;
(d)       the impairment constituted by the loss of the sense of smell.
(9)For the purposes of this section, the maximum amount is $80,000.
…"

submissions of the respondent

Ms Kumar submitted on behalf of the respondent that the Tribunal was bound to follow the decision of Deputy President Burns in Denison-Smith and Comcare [2000] AATA 553 in the current matter before the Tribunal. Ms Kumar submitted that there had been no favourable section 14 determination with respect to several of the applicant's conditions, namely musculo-ligamentous strain (myofascial syndrome) of the neck, back and shoulders, and depression and anxiety.
Ms Kumar cited paragraph 23 of Denison-Smith which reads (inter alia):
"…
Lees (supra) makes it clear that ordinarily before any issue of an employee's or former employee's entitlement to compensation for permanent impairment arises, a favourable determination concerning that person's entitlement to compensation needs to be in existence under s14 of the Act. (Lees (supra) para 49 p95).
…
In the opinion of the Tribunal, Lees's case (supra) makes it plain that s24 is not to be read as a second source of liability to pay compensation in respect of an injury to an employee resulting in impairment.
…"
Ms Kumar further submitted that the case of Peter James Carson and Telstra Corporation [2001] AATA 648 appeared to be in conflict with the decision in Denison-Smith. However, Ms Kumar distinguished Carson on the basis that that case was concerned with the situation where liability had been ceased on the incapacity, whereas in this case there has never been a section 14 determination with respect to the relevant conditions.
Ms Kumar submitted that on the basis of the decision in Denison-Smith which is a decision which still applies, the relevant conditions are not before the Tribunal.
Ms Kumar submitted that the issue remains that there is no favourable section 14 determination with respect to those particular conditions. Ms Kumar further submitted that at the time of the respondent's initial section 14 liability determination, there was nothing in Dr Eaton's report (at T41/92-94) connecting the neck, back, shoulders and alleged psychiatric conditions with the applicant's osteoarthritis of the hands and wrist.
submissions of the applicant
Mr Hawkins submitted on behalf of the applicant that he did not have any argument with the respondent's interpretation of the law, particularly in relation to the decision in Denison-Smith, but rather he disagreed with the respondent's interpretation of the facts.
Mr Hawkins submitted that there was an earlier determination, or at least an accepted condition that the respondent had earlier accepted as far back as 10 February 1998, namely, "a musculo-ligamentous strain to right hand, wrist and aggravation of osteoarthritis" as indicated in a letter from Comcare to Dr Eaton (T37/85). Mr Hawkins further submitted that the osteoarthritis was the cause of the applicant's complaint in the neck and the back and it was yet to be seen what that would mean in relation to the shoulders and arms. Therefore, it was Mr Hawkins's submission that the complaints of the neck and back were derived from osteoarthritis, a condition for which the respondent had accepted liability. It was submitted that the applicant's psychological condition was a sequela of the various other complaints that the applicant suffers from rather than arising from the applicant's direct employment.
It was submitted that as far as Comcare was concerned, it perhaps was considering osteoarthritis only in so far as it related to the arms. Mr Hawkins submitted that in Dr Eaton's response to Comcare (T88/187), he discussed osteoarthritis but he did not describe where it was actually occurring in the applicant's body and it really only became clearer when he completed Part C of the applicant's claim for permanent impairment (T88/188). Mr Hawkins submitted that in the letter dated 5 July 1999 that Dr Eaton wrote to accompany the applicant's permanent impairment claim form (T88/189), Dr Eaton discussed the applicant's impairment assessment and he mentioned the applicant's cervical and thoraco-lumbar spine and stated (T88/190): "I believe this to be a reasonable assessment of Mrs Ryan's permanent impairment due to her occupational over use injury". It was further submitted that the applicant's evidence was going to be that the condition with her back also contributed to her ongoing incapacity.
Mr Hawkins submitted that the issue was whether or not the osteoarthritis, which was accepted earlier, could extend to include the applicant's cervical spine and thoraco-lumbar spine. In relation to the psychiatric condition, Mr Hawkins submitted that that was a sequela of the other accepted conditions.
Mr Hawkins further submitted that the applicant's claim for permanent impairment was subject to a determination on 28 February 2001 prior to the determination ceasing liability generally (T137/279) and that is a determination specifically in relation to section 24 and 27. The subsequent determination dated 28 March 2001 (T140/288) dealt with the cessation of liability generally and it also refers to the accepted condition of osteoarthritis.
discussion and findings
The Tribunal would indicate at the outset that it has given careful consideration to the oral submissions made by the parties and to the authorities referred to therein.
The Tribunal is mindful that the decision of the Full Federal Court in Lees v Comcare (1999) 56 ALD 84 has interpreted section 14 to be the central liability provision of the Act through which all claims must pass successfully in order to make further claims for specific types of compensation. The Full Federal Court stated (at paragraph 27, page 90):
"[27] As Finn J noted, s 14 is the central provision of the Act so far as the liability of Comcare to pay compensation is concerned. Section 14 creates a liability in Comcare in respect of injuries suffered by employees which result in death, incapacity for work or impairment. However, the liability in Comcare created by s 14 is qualified in two ways. First, such liability is a liability 'subject to' Part II of the Act. That is, it is a liability limited in its extent by other provisions of Part II of the Act (see, for example, s 17(2)). Secondly, the liability is a liability to pay compensation 'in accordance with' the Act. That is, it is a liability to pay the compensation for which the statute provides, as required by the Act (see, for example, ss 17(3)(4) and (5), 19, 20, 24 and 25).
…"
The decision of the Full Federal Court in Lees further makes it clear that generally, a favourable section 14 determination concerning an employee's entitlement to compensation needs to be in existence before the question of an employee's entitlement to compensation for permanent impairment arises (at paragraph 48, page 95):
"…
We interpolate that we do not read s 24(1) of the Act as a second source of liability to pay compensation in respect of an injury to an employee resulting in impairment. We see that liability as being created by s 14 of the Act. Section 24 we understand as being intended to define the nature and extent of the liability to pay compensation in respect of an injury which results in permanent impairment.
…"

In the instant case, a favourable section 14 determination was made in relation to the applicant's claimed injuries of "musculo-ligamentous strain to (R) hand and wrist, aggravation of osteo-arthritis and bi-lateral carpal tunnel syndrome due to occupational overuse injury" (T137/279). The applicant then sought a determination as to permanent impairment under section 24, and upon her claim being rejected, she requested a reconsideration of the determination hence there was a "reviewable decision" in relation to permanent impairment before the Tribunal.
However, on the applicant's claim form for permanent impairment, the applicant stated that her permanent injuries/impairments were "Chronic hand, wrist, arm, shoulder, neck and back pain. Persistent paraesthesia both hands. Reduced grip strength in both hands and mobility to carry out fine movements with finger ie reduced digital dexterity" (T88/187). On the same form, Dr Eaton stated that the diagnosis of the applicant's current condition was "Occupational overuse syndrome. Bilateral Carpal Tunnel Syndrome. Aggravated osteoarthritis. Musculoligamentous strain (myofascial syndrome) neck, back, shoulders and arms, hands and wrists." (T88/188). Dr Eaton further described the impairments which have resulted from the condition as "chronic pain and stiffness neck, upper back, both shoulders, arms, wrists and hands. Persistent paraesthesia both hands, weakness both hands R>L. Reduced grip strength and digital dexterity both hands R>L. Depression and anxiety as a result of chronic pain and reduced work capacity." (T88/188).

It is readily apparent from the applicant's permanent impairment claim form that the injuries or impairments described extend beyond those for which the respondent accepted section 14 liability. Therefore, the problem that the Tribunal must consider is whether or not these additional impairments can be incorporated into a subsequent Tribunal review. The case therefore concerns exactly what conditions or injuries the Tribunal can look at upon review.
The Full Federal Court in Lees stated (inter alia) that a determination under seciton 14 is "a determination that Comcare 'is liable to pay compensation in accordance with this Act' in respect of a particular injury" (paragraph 34, page 91). It is the Tribunal's opinion that the "particular injury" is that injury which is written on the applicant's claim form for which the applicant makes a compensation claim and for which the respondent accepts liability. In this case, it is "musculo-ligamentous strain to (R) hand and wrist, aggravation of osteo-arthritis and bi-lateral carpal tunnel syndrome due to occupational overuse injury". In the Tribunal's opinion, it is only those accepted injuries that can be considered for the purposes of permanent impairment.
Mr Hawkins submitted that the applicant's accepted condition of aggravated osteoarthritis was causing her complaints in the neck and back. This submission is puzzling in the sense that in her permanent impairment claim, the applicant is claiming for "musculo-ligamentous strain (myofascial syndrome) of the neck, back, shoulders, arms, hands and wrists" rather than aggravation of osteo-arthritis involving these areas.
In addition, throughout the determinations, the respondent has consistently limited its liability for osteoarthritis to "aggravation of bi-lateral osteo-arthritis of the hands" (T137/282; T140/288), rather than the kind of "general" osteo-arthritis mentioned by Mr Hawkins in his submissions. The applicant at no stage has objected to the respondent so limiting its liability to aggravation of bi-lateral osteo-arthritis of the hands.
In relation to the fact that the claim for permanent impairment includes a claim for musculo-ligamentous strain (myofascial syndrome) of the neck, back and shoulders rather than osteo-arthritis involving these areas, it appears that the respondent never considered myofascial syndrome in relation to the neck, back and shoulders and only investigated musculo-ligamentous strain in relation to the hands and wrists. However, it appears that in responding to the applicant's permanent impairment claim, the delegate of the respondent has in fact addressed the respondent's section 14 liability in relation to musculo-ligamentous strain of the back, neck and shoulders in that the delegate states (T137/284):
"…
Liability has not previously been accepted in respect of this condition. I must therefore be satisfied, that this condition arose out of the course of employment on 6 Februrary 1995, or was materially contributed to by those duties, namely keyboard duties.
…"
It appears that the delegate decided this section 14 issue at the same time as determining the applicant's claim for permanent impairment and rejected all liability for compensation in relation to this condition in those areas of the body, as indicated by the delegate's comments (T137/284):
"…
In light of the available medical evidence, and in accordance with the provisions of the Act, I am satisfied on the balance of probabilities that the claimant does [sic] currently suffer from myofascial pain syndrome, and therefore Comcare is not liable to pay any compensation in respect of this condition.
…"
At the reconsideration stage, the delegate of the respondent states (T147/304):
"…
Similarly as Comcare has not admitted liability for myofascial syndrome or depression and anxiety, it follows that there can be no liability for permanent impairment.
…"
It would appear that the delegate at the reconsideration stage has emphasised that the respondent at no stage has admitted liability for myofascial syndrome of the neck, back and shoulders. Therefore, it would appear that even if the first determination at the permanent impairment stage could also be considered to be a section 14 determination in relation to the condition of musculo-ligamentous strain (myofascial syndrome) of the neck, back and shoulders, liability has not been accepted by the respondent for this condition and therefore, the Tribunal has no jurisdiction to consider a permanent impairment claim in relation to it.
The Tribunal now turns to consider the applicant's claim for "depression and anxiety". The applicant contends that her depression and anxiety are sequelae to her injuries. However, depression and anxiety were only mentioned by the applicant in her claim for permanent impairment and there is no medical evidence about this psychiatric condition in existence prior to the permanent impairment claim stage. It is clear from the Full Federal Court's decision in Lees that a favourable section 14 determination in relation to each injury needs to be in existence and once each injury is accepted as compensable, then compensation under the specific heads of compensation can be considered (see also Denison-Smith and Comcare [2000] AATA 553 at paragraph 23). No such determination was in existence in relation to depression and anxiety at the time the applicant's claim for permanent impairment was considered and reconsidered. Therefore, depression and anxiety cannot now be considered at the permanent impairment stage.
The Tribunal considers that the respondent and the Tribunal upon review should not unduly limit themselves when considering a claim for compensation to what a claimant writes on a claim form, if the medical evidence reveals otherwise: Telstra Corporation Limited v Barrow (1994) 35 ALD 461. Indeed, it appears that at the initial section 14 stage, the respondent has gone beyond what was written in the applicant's claim form in its decision to accept liability to pay compensation. However, the additional conditions listed on the applicant's claim form for permanent impairment concern other areas of the body and psychiatric conditions all of which have not been considered previously. Whilst the applicant asserts that these conditions are linked to the conditions for which the respondent initially accepted liability, the Tribunal is of the opinion that they are not linked closely enough and the respondent is entitled to the opportunity to examine these other conditions for itself at the initial section 14 determination stage.
The appropriate course for the applicant to adopt at this stage is to go back and make a section 14 claim for these additional conditions and if successful, then the applicant can pursue a claim for permanent impairment in relation to them.
Therefore, the Tribunal finds that it does not have jurisdiction in relation to the applicant's conditions of "musculo-ligamentous strain (myofascial syndrome) of the neck, back, shoulders and arms" and "depression and anxiety" in its review of the respondent's decision to deny liability for compensation for permanent impairment.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE
Signed:         .........................(Signed).......................................
  Barbara Armstrong, Associate
Date/s of Hearing  24 August 2001
Date of Decision  9 November 2001
Counsel for the Applicant        Mr W. Hawkins
Solicitor for the Applicant         Higgins Solicitors
Counsel for the Respondent    Ms K. Kumar
Solicitor for the Respondent    Dibbs Barker Gosling Lawyers