Silver and Comcare
[2004] AATA 34
•16 January 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 34
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2001/449
GENERAL ADMINISTRATIVE DIVISION ) Re GRAHAM GEORGE SILVER Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member WJF Purcell Date16 January 2004
PlaceAdelaide
Decision The Tribunal:
1. Sets aside the decision under review, and remits the matter to the respondent for reconsideration in accordance with the direction that the respondent deal with the applicant on the basis that he suffered a loss of vision, compensable under s 39 of the Compensation (Commonwealth Government Employees) Act 1971, and equivalent to 5 percent; that his impairment was permanent as at 1 December 1988; and that his whole person impairment attributable to the post 1 December 1988 permanent impairment, and pursuant to the Safety Rehabilitation and Compensation Act 1988, is 30 percent.
2. Orders that the respondent pay the costs of the applicant of these proceedings, such costs in the absence of agreement to be taxed by the Registrar or a District Registrar of the Tribunal.(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
COMPENSATION – permanent impairment due to loss of vision resulting from incident that occurred in the course of his service – impairment permanent as at 1 December 1988 –compensation for permanent impairment correctly assessed – decision set aside
Compensation (Commonwealth Government Employees) Act 1971 s 39
Safety Rehabilitation and Compensation Act 1988 ss 24, 27, 45
Comcare Australia (Department of Defence) v Maida [2002] FCA 1284
REASONS FOR DECISION
16 January 2004 Senior Member WJF Purcell 1. This is an application for review of a decision of the respondent (Comcare) of 23 November 2001, which affirmed that part of a determination of 10 July 2001, which decided that the applicant suffered a loss of vision in his left eye of 75 percent, and a 20 percent whole person impairment; and varied that part of the determination which decided that the amount of compensation payable was $11,621.73; and determined an amount of $25,565.73 was payable, consisting of $17,994.00 under the provisions of s 39 of the Compensation (Commonwealth Government Employees) Act1971 (the 1971 Act), and $7,571.73 under the provisions of s 27 of the Safety Rehabilitation and Compensation Act 1988 (the 1988 Act).
2. The evidence before the Tribunal comprised the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents) and supplementary documents, together with exhibits tendered by the parties. The applicant, who was represented by Mr McRae of Counsel, gave oral evidence, and called Dr M Lane, Ophthalmic Physician and Surgeon, as a witness. Mr Soulio was Counsel for Comcare, which called Dr J Crompton, Ophthalmic Surgeon, as a witness.
3. The applicant, who is 55 years of age, was born in Adelaide and attended Woodville High School. He enlisted in the Australian Regular Army (the Army) at the age of 17, on 28 September 1965, and served for 20 years, until his discharge on 2 October 1985. He undertook basic training at Kapooka, and infantry training at Ingleburn, New South Wales. He was assigned to a demonstration platoon (sniper section) for approximately 8-9 months until he turned 19. He then undertook jungle warfare training. He served in Vietnam in 1967 and 1968, as a forward scout with the Seventh Battalion. He returned to Australia in 1968, and remained at Holdsworthy Barracks until June 1969. He was transferred then to Malaysia in One Battalion, as a non-commissioned officer. He remained in Malaysia/Singapore until 1971. In August 1971 he returned to Australia, where he was stationed at Ingleburn, as a Weapons Instructor.
4. On 9 December 1971 the applicant suffered an injury to his left eye whilst engaged in a field training exercise in Mittagong. A practice “flash” grenade exploded. The grenade was made of cardboard, plastic and an aluminium based flash blasting powder, and was designed to simulate an explosion. Due to the rainfall, the grenade had become wet and unusable. The Platoon Commander was attempting to destroy the grenade, because it could not be left lying in the field, in case a civilian picked it up. The applicant stated, that from memory, there were a number of grenades which were unserviceable, and he and the Platoon Commander were going through the task of destroying them one by one. The process to destroy a grenade was to cut it in half, and empty the powdered contents into a trail of powder. The Platoon Commander had formed a powder trail of about 2-3 metres in length. The applicant gave him his cigarette lighter, but the Platoon Commander was unable to ignite the powder. The applicant knelt down on the ground, and as he lit the powder, a gust of wind blew up, causing the flash from the igniting powder to come back into his face.
5. The applicant suffered second degree burns to his face, hands and slightly up his arm. His face was extremely painful and he says that he could not see at all well. He says that he could see shadows, but nothing clearly. He was taken to the Bowral Hospital, where his face was washed, and he was given painkillers. He was subsequently transferred to the Military Hospital at Ingleburn, where he remained for a period of about two weeks. During this time his eyes were bandaged. He had two weeks off work. After a period, which he estimates to be approximately a month, his vision had returned to normal. He still had some soreness, and he remembers having to use drops in his eyes for a while.
6. The applicant took holidays over Christmas 1971, and returned to work on normal duties in January 1972. He says that he was not aware of any ongoing disability in terms of loss of vision. In or about May or June 1973, he transferred to Three Battalion, Woodside, South Australia. On 4 September 1973 the applicant underwent a regular medical examination, and was not aware of any problems with loss of vision in his left eye at this time.
7. The applicant said in evidence that before his December 1971 injury, he was competing in the Army Defence Force shooting competitions, including district competitions and Queen’s Medal. He continued with shooting competitions after his injury. In 1971, not long before his injury, he had taken up civilian pistol shooting, which he continued after his injury. Upon his transfer to Woodside in 1973, he became a member of the Adelaide Pistol Club. He was also a member of the Army Combat Pistol Club. Due to exposure to mortars in the course of his Army service, the applicant began losing his hearing. Consequently his fitness rating was downgraded from FE (fit everywhere) to CZE (communication zones everywhere).
8. In late 1974 the applicant was transferred to the Military Police. A Medical Board Examination Record of 3 December 1975, when the applicant was serving with 9MPCOY in Brisbane, did not record any problems with his vision. In 1979 he transferred to 4MPCOY in Adelaide. He says that by this time, he was aware of some deterioration in the vision of his left eye, but he says that it was only minimal, and did not interfere with his daily activities or functioning.
9. On 10 April 1981 the applicant suffered an injury to his right eye. He had just finished duty as an ammunition escort, and was returning to his “living in” barracks at Keswick. He went to the mess kitchen, but by the time he got there, the mess had shut. As he needed an evening meal, and there was nowhere else on the base to get food, he drove his private vehicle from the barracks to a nearby fast food shop on Anzac Highway. Whilst at the fast food shop, a motorist approached him to assist in jump-starting his car. The applicant, who was still in Army uniform, retrieved some battery leads from his own car, and gave them to the motorist, who did not know what to do, and took the tops off the battery. When the applicant went to check what he had done, the battery exploded, causing an injury to his face.
10. The applicant was admitted to the Royal Adelaide Hospital, and remained there for about two weeks, and was off work for about two months. He described the injury in evidence, as an injury to the pupil. The muscles which expand the pupil were not fully closed, so his right eye was affected by bright light. Reading glasses and Polaroid sunglasses were prescribed. He says that his left eye was not affected, and there was no change to his vision as a result of this incident.
11. In about January/February 1983 the applicant was transferred to Townsville, and in 1984 he was posted to Albury. On 2 October 1985 the applicant was discharged after 20 years service. He says that he was aware that he had some loss of vision in his left eye, but this was not a significant issue for him. He described it as being more of a nuisance or annoyance value. He says that he was still able to function perfectly well, and was not concerned about the loss of vision which he had in his eye at that stage. He joined the Army Reserves in late 1985, but after two years had to leave, due to the shifts he was working in his employment at Chubb Security, the company he joined immediately after his discharge.
12. The applicant was a Control Room Security Operator at Chubb Security. During this period he continued to wear glasses for reading for long periods, such as when reading books. He also had to wear prescription sunglasses, due to the injury to his right eye. He says that he had no difficulty performing his duties as a Control Room Security Operator. The job involved monitoring a computer console, which printed out tape containing numbers and letters. The applicant had no difficulty reading the tape. He would also have to read numbers formed by red lights, which were located on a rack on a wall. The numbers were about 1 inch in height and about 15-20 feet from where he sat.
13. In 1989 the applicant obtained employment as an Inspector with Transport SA at Murray Bridge. His job involved a lot of travelling, attending weighbridges to inspect trucks, and writing reports. He found that he was having trouble with his vision, particularly at night. He went to get some new glasses, and the optician suggested that he should see an eye specialist. He initially consulted Dr Murchland, in Mount Barker, on 7 June 1990, and again in 1996 and 1997.
14. In 1995, the applicant’s position with Transport SA changed. Although he was still an Inspector, he spent more time in the office operating a computer and writing reports and less time travelling. At this time, he says he was finding it difficult to drive for long periods, particularly at night. In 2000 he went to OPSM in Gawler Place to replace his glasses, and at the suggestion of the optician he consulted an eye specialist, Dr Lane, in February 2001. He had lodged a claim for rehabilitation and compensation On 11 October 2000. He claimed “left corneal scar”, with date of injury 9 December 1971, and “right traumatic myoriasis and cataract” with date of injury 10 April 1981.
15. On 14 December 2000, a delegate of the Military Compensation and Rehabilitation Service, Department of Veterans’ Affairs (the Department) determined that the applicant had suffered an injury on 9 December 1971, in the course of his employment, namely “second degree burns to face and eyes resulting in scarred left cornea”.. The delegate determined also, that the Commonwealth was not liable in respect of the 1981 injury, as the applicant was not on duty at the time.
16. In relation to the applicant’s claim for permanent impairment, Dr Lane reported, on 16 February 2001, that the applicant had 75 per cent loss of vision in the left eye; and the Department referred the applicant to Dr G Long, Consultant Occupational Physician, at Health Services Australia. Dr Long reported on 28 March 2001 that the applicant’s whole person impairment in accordance with Table 6.1 of the Guide to the Assessment of the Degree of Permanent Impairment (the Comcare Guide) was 20 percent. Table 6.1 reads as follows:
“Disorders of Visual Acuity
(Percentage Whole Person Impairment)
Disorders such as nystagmus, conjunctivitis, colour blindness, night blindness and glaucoma (without visual loss) are usually binocular and cause minimal impairment. An assessment of 0 to 5 percent is appropriate.
Visual field defects should be accurately mapped and assessed in accordance with the procedures dictated in the current edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment.
Impairment is based on CORRECTED visual acuity.
RIGHT EYE
6/6 6/9 6/12 6/18 6/24 6/30 6/36 6/48 6/60 3/60 NPL
6/6 0 5 5 10 10 15 15 20 20 20 25
6/9 5 10 10 15 15 20 20 25 25 30 30
L 6/12 5 10 20 20 25 25 30 30 35 35 40
E 6/18 10 15 20 30 30 35 35 40 40 40 45
F 6/24 10 15 25 30 40 40 40 45 45 50 50
T 6/30 15 20 25 35 40 45 50 50 55 55 60
6/36 15 20 30 35 40 50 55 60 60 65 65
E 6/48 20 25 30 40 45 50 60 65 70 70 75
Y 6/60 20 25 35 40 45 55 60 70 75 80 80
E 3/60 20 30 35 40 50 55 65 70 80 85 85NPL 25 30 40 45 50 60 65 75 80 85 85
NOTE: NPL means ‘no perceived light’.”
17. At the Department’s request, Dr Long provided a subsequent report on 4 May 2001 [T50/85], and stated that Dr Lane’s assessment of 75 percent loss of vision in the left eye was consistent with his own findings, and in accordance with Table 6.1 of the Comcare Guide, the whole person impairment was 20 percent.
18. On 14 May 2001 the delegate advised the applicant of the amount that would be payable if he chose to accept the lump sum rather than sue the Commonwealth at common law. The delegate determined that the applicant had sustained an injury and was entitled to compensation under the 1971 Act, and that the left eye injury was to be determined as a permanent impairment, with reference to the 1971 Act, using the transitional provisions of the 1988 Act. The delegate stated in part:
“…
On the basis of the report provided by Dr Graham Long, it is apparent that you suffer a loss of vision left eye of 75% as a result of your compensable injury and a whole person impairment of 20%. As a result, the total amount payable to you is $11,621.73. A copy of the report by Dr Long is enclosed.
Under the current interpretation of case law the total amount of compensation payable to you would be $11,621.73 consisting of $4,050.00 under Section 24 of the Act for impairment (based on the rates applicable at the time of permanence) and $7,571.73 under Section 27 of the Act for non-economic loss.
…
This letter is not a formal assessment or determination of the amount of compensation which will be paid for your impairment. Its purpose is to advise you about the amount which will be payable (subject to clearance from the Disability Compensation Branch), so that you can make an informed decision about whether you wish to receive that compensation or institute proceedings at common law.
A formal determination and assessment of the amount of compensation payable to you will be made when you tell us what you want to do. I have enclosed a form for this purpose.
…” [T52/90-91]
19. On 24 May 2001 the applicant signed the form of election pursuant to s 45 of the 1988 Act, electing to receive compensation under the 1988 Act, and not to sue the Commonwealth for damages at common law. The Department had requested some further clarification by Dr Long, firstly as to whether he based his assessment on corrected visual acuity or uncorrected; and secondly as to the date upon which Dr Long considered the condition became (a) permanent and (b) stable.
20. On 29 June 2001 Dr Long forwarded to the Department a letter in the following terms:
“I refer to your request for additional comments in relation to this case forwarded by E-mail.
1.Whole person impairment is assessed under Table 6.1 using best corrected visual acuities. Because of the nature of his left eye condition, this can not be improved with spectacles for either distance or near vision. He has been provided with corrective lenses for near vision (ie reading glasses) given his more recent presbyopia (aging changes). Near vision is assessed using a standardised Times Roman chart at about 40cms. The notation N8, N14, and N48 simply refer to the Times Roman font size with N6 generally being accepted as normal. These measures of near visual acuity of course are not taken into account when assessing under Table 6.1.
2.The date of permanency for his left eye injury would be 9 December 1971 as you have inferred. It is difficult to state with certainty a stability date given the limited recorded information available in the almost 30 years since his accident. I suspect that there may have been some deterioration in his left visual acuity since his initial accident but in the absence of any evidence to the contrary I believe it must be assumed that his current level of disability has been present since 1971.
…”[T56/97]
21. On 10 July 2001 the delegate determined that the total amount of compensation payable was $11,621.73, which represented $4,050.00 pursuant to s 24 of the 1988 Act – “1971 impairments” – and $7,571.73 pursuant to s 27 of the 1988 Act, for non-economic loss.
22. On 13 July 2001 the applicant requested a review of the decision; and on 23 November 2001 the Director, Military Compensation and Rehabilitation, made the decision under review, and his determination reads in part as follows:
“…
It is my decision to:
· affirm that part of the determination dated 10 July 2001 which found that you have suffered a loss of vision in your left eye of 75% and a 20% whole person impairment, and;
· vary that part of the determination which found that the amount of compensation payable is $11,621.73. In its place I hereby find that an amount of $25,565.73 is payable. This consists of $17,994.00 under the provisions of Section 39 of the Compensation (Commonwealth Government Employees) Act 1971 and $7,571.73 under the provisions of Section 27 of the SRCA.
…
For the purpose of establishing your entitlement, you were examined by Dr G Long, Occupational Physical [sic], Health Services Australia. In his report of 28 March 2001 Dr Long also assessed your loss of sight as 75%. He also assessed your whole person impairment as 20%. In a further report dated 29 June 2001 Dr Long advised that the impairment affecting your left eye became permanent at the date of injury, but considered it was difficult to state with certainty when your condition became stable but considered it reasonable to assume that your current level of disability has been present since 1971.
On 10 July 2001 a determination was issued stating that you suffer 75% loss of vision of the left eye and a 20% whole person impairment and the amount of compensation payable is $11,621.73. It is this decision which is the subject of my review.
As your injury occurred prior to the commencing date of the SRCA, Section 124 requires that an entitlement to compensation must first be established under the provisions of the relevant Act in force at the time of the injury.
Section 124(4) states in part:
“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 has not been enacted, under …”:
The relevant legislation in force as at 9 December 1971 when you suffered your left eye injury was the Compensation (Commonwealth Government Employees) Act 1971 (“the 1971 Act”).
In Section 5 of the 1971 Act, “permanent” is defined to mean “likely to continue indefinitely” which is the same definition as in the SRCA.
Service medical records held on your compensation file indicate that you suffered corneal scaring in your left eye as a result of burns in an incident on 9 December 1971.
…
As you suffer a 20% whole person impairment as assessed pursuant to the “Comcare Guide to the Assessment of the Degree of Permanent Impairment”, and having regard to the Non-Economic Loss Questionnaire enclosed in Dr Long’s report of 4 May 2001, I am satisfied that you are entitled to payment of $7,571.73 under the provisions of Section 27 of the SRCA.
…” [T61/104-107]
23. Section 39 of the 1971 Act, as far as is relevant for the purposes of this review provides:
“(1) Subject to this section, where an injury to an employee results in a loss specified in sub-section (2), the compensation payable in respect of that injury is $28,000 or such higher amount as is prescribed, and that compensation is payable to the employee.
(2) The losses referred to in sub-section (1) are as follows-
(a) loss of, or total loss of sight of, both eyes, and
(b)loss of, or total loss of sight of, a useful eye, the other being blind or absent.
(3) Subject to this section, where an injury to an employee, not being an injury resulting in a loss in relation to which sub-section (1) applies, results in a loss specified in subsection (4), the compensation payable in respect of that injury is an amount equal to such percentage of $28,000 or, if an amount is prescribed for the purposes of subsection (1), of that amount as is specified in sub-section (4) in relation to that loss, and that compensation is payable to the employee.
(4) The losses and percentages referred to in sub-section (3) are the losses and percentages set out in the following table-
Nature of Loss %
Loss of, or total loss of sight of, an eye 40
Total loss of hearing 70
Total loss of power of speech 70
Loss of arm at or above elbow 80
…”
24. Section 27 of the 1988 Act provides:
“(1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
(2) The amount of compensation is an amount assessed by Comcare under the formula:
($15,000 x A) + ($15,000 x B)
where:
A is the percentage finally determined by Comcare under section 24 to be the degree of permanent impairment of the employee; and
B is the percentage determined by Comcare under the approved Guide to be the degree of non-economic loss suffered by the employee.
(3) This section does not apply in relation to a permanent impairment commencing before 1 December 1988 unless an application for compensation for non-economic loss in relation to that impairment has been made before the date of introduction of the Bill for the Act that inserted this subsection.”
25. The applicant has applied to this Tribunal for review of the Director’s decision, on the basis that his impairment for loss of vision, is a single and indivisible impairment, which was not capable of being determined as permanent as at 1 December 1988. The impairment became permanent subsequent to 1 December 1988, and his entitlement in respect of the same, falls to be determined in accordance with s 24 of the 1988 Act. He contended in the alternative, that if his impairment was permanent within the meaning of the 1988 Act as at 1 December 1988, then the loss of vision suffered by him after 1 December 1988 is such that quantitatively and qualitatively it is properly characterised as a further, or new impairment occurring after 1 December 1988. The degree of such permanent impairment is compensable, pursuant to s 24 of the 1988 Act, which, as far as is relevant for the purposes of the review, provides:
“(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.
…”
26. In relation to the assessment of compensation made pursuant to s 27 of the 1988 Act, the applicant contends that such award is inadequate, and further, in the alternative, was not correct at law as the figure of $21,841.32 described as the maximum rate was incorrect at the date of determination, 10 July 2001. The correct figure being $23,108.12.
27. When the applicant’s evidence had been completed, and before the medical practitioners were called, Counsel advised me that it had been agreed between the parties that the applicant’s impairment was permanent, as at 1 December 1988. The applicant maintaining that the degree of impairment was 5 percent and is now 35 percent; Comcare that it was 10 percent and is now 20 percent.
28. The applicant maintains that the present impairment is compensable, pursuant to s 24 of the 1988 Act, as it arises from an extension of the scarring since 1988 – an extension from the peri-macula area into the area of the forea, with a resultant “wipe out” of vision. With a reading of 6/60 – a discernible or measurable underlying pathological change has occurred, which accords with the principle enunciated by the Federal Court in Comcare Australia (Department of Defence) v Maida [2002] FCA 1284, wherein Mansfield J said at paragraphs 28 and 29:
“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 change in the underlying patho-physiological condition, so that there has been a qualitative change to the impairment - that is, the development of a new impairment."
29 It was explained in contentions, by way of example, that if an underlying back condition produced back pain which gradually worsened there would on the applicant's argument be no new impairment, but if that underlying back condition produced symptoms and therefore disability in the leg or legs which did not previously exist, there would be in respect of the disability in the leg or legs a new impairment which would attract the operation of s 24 and associated sections. If, in addition, it could be demonstrated that a significant worsening in the disability in the back occurred, and that there was some underlying patho-physiological condition which changed so as to produce that significant worsening of symptoms, in that event there may well be a further new impairment. It was not fully explored whether that would be a new impairment per se, or a consequence of a further injury flowing as a natural and probable consequence from the initial injury.”
And at paragraph 38:
“38 A significant deterioration in the degree of permanent impairment from any injury may indicate that a discernible or measurable underlying pathological change has occurred. Examples readily suggest themselves. An employee may have a back injury producing lower back pain, and subsequently pain extending into the legs indicating the possibility of further pathological change in the lower back so as to impinge upon nerve roots which previously were unaffected. In the case of a condition such as schizophrenia, there may or may not be some further patho-physiological changes which account for a significant deterioration in symptoms. The Tribunal at one point described the significant worsening of the respondent's symptoms, and so of the degree of his permanent impairment, as being "marked by significant alteration". I have concluded that it then erred in failing to determine whether there had in fact been a qualitative change in the patho-physiological condition underlying his schizophrenia, and in regarding a change in the degree of his permanent impairment as itself constituting a new permanent impairment under the SRC Act.”
29. The applicant submits that Dr Lane’s assessment of 35 percent, which took into account reduced vision in the applicant’s right eye, should be preferred, as otherwise no real sense can be made of the overall impact of the impairment.
30. Comcare argues that s 24 of the 1988 Act does not apply because there is not a qualitative and quantitative change in the underlying patho-physiological condition such as to give rise to a new impairment. Dr Crompton’s evidence should be preferred. He was of the view that the 1971 injury caused the scarring, which involved the retina; and the scarring process in place is a natural and expected progression of that scarring, and that all that has changed is the level of symptoms, and there has been a quantitative and qualitative change because the reading is now 6/60. This change does not however reflect a quantitative and qualitative change to the underlying pathological process. The process is the scarring of the retina, and that scarring has consolidated and produced an increased result. In the light of the medical evidence presented at the Hearing, it would be open to the Tribunal to find now, that the applicant’s loss of vision, assessed entirely under the 1971 Act, has increased.
31. In relation to the whole person impairment for the purposes of s 27 of the 1988 Act, Comcare maintains that what is required is an assessment of the permanent impairment caused by the compensable injury, and that that can only translate to the loss of vision in the injured eye, and its effect. There is no warrant in the legislation to take into account the effect of an unrelated non-compensable injury - in the applicant’s case an age related cataract in the left eye. The appropriate assessment, on a reading of 6/60, is 20 percent therefore.
32. The parties are agreed that the Director’s calculations in relation to s 27 of the 1988 Act are incorrect, and will be recalculated, of necessity, in due course.
33. The applicant gave oral evidence. I consider that he gave his evidence without embellishment, and to the best of his ability. The other witnesses were medical practitioners, both of whom were suitably qualified and objective in their approach to the matter. In the final analysis, their views, as outlined in their oral testimony, were less at odds than their written reports would indicate. In any event, in any area of conflict in the evidence I prefer the evidence of Dr Lane.
34. Dr Lane, the applicant’s treating specialist, said in evidence that he first examined the applicant on 16 February 2001. In relation to the applicant’s level of vision as at 1988, he relied on the letter of Dr Murchland, Ophthalmologist, to the applicant of 4 January 2002 which referred to the Royal Adelaide Hospital notes in 1981, and to his own records of June 1996 and June 1997. The applicant’s readings are recorded as follows:
“…
Visual Acuity % Visual Loss
12/6/81 6/9 (90%) 10%
7/6/90 6/18 (50%) 50%
4/6/96 6/18 (50%) 50%
19/6/97 6/20 (40%) 60%
…”
35. Dr Lane said that he assumed that in 1988 the applicant’s vision was somewhere between the reading of 6/9 in 1981, and 6/18 in 1990. He considered that 6/12 or 5 percent was a reasonable assumption, as it is the only increment of visual acuity between the two readings. By 24 September 2002, the left eye reading was less than 6/60, both uncorrected and corrected. He said that at 6/10 a person is still able to see things generally, but not in detail. Less than 6/60 is regarded as legal blindness.
36. In the course of cross-examination, Dr Lane’s attention was drawn to document T34/52, which recorded, on 21 July 1982 a reading for the left eye of 6/12, and document T36/54, which recorded, on 19 September 1985 a reading for the left eye, both unaided and corrected, of 6/24. These readings he said, did not concur with those obtained from Dr Murchland, and which recorded that in both June 1990, and June 1996, the applicant’s reading was 6/18, which is 10 percent in accordance with Table 6.1. He conceded that a reading of 6/18 in 1988 was a possibility, but he emphasised his view that if the macula was injured, the applicant’s visual acuity could not be 6/9 or 6/12; his vision would be worse than that. A reading of 6/18 would indicate that the macular was starting to be involved.
37. Dr Lane gave evidence that there has been a quantitative change, in that the applicant’s measured visual acuity has changed. He said also that the quality of the applicant’s vision is distinctly worse than it was. It has gone from 5 percent to legally blind – a qualitative change. He said in evidence that he understood that physiological change is really a change in some part of the body’s function that occurs normally. Patho-physiological change implies that there is some disorder or disease present. He said he considered that in the applicant’s case, the scar was slightly off centre initially from that part of the retina that we call the macula, which is responsible for the very sharp detailed central vision. Over time the scar has progressed to involve the macula, either by growing over it, or pulling traction on it. He said that scar tissue often shrinks over time, and can put traction on things, as it can actually extend an area. In his view, the scar tissue has evolved, so as to encroach on the macula. He can find no evidence of any other disorder in the eye, apart from very mild corneal scarring which has been documented at the time of the initial injury in 1971. That scarring is still only very mild, and certainly could not account for a vision of less than 6/60.
38. Dr Lane said in evidence that when he last examined the applicant on 24 September 2002, he did not consider that surgery to rectify the cataract in the applicant’s right eye, was warranted at the time. The applicant was managing quite well. He still had vision that was legally suitable for him to drive. He has one effectively good eye. With surgery there is an increased risk of complication, as the eye has suffered another injury which has damaged the pupil. In Dr Lane’s opinion it was not wise for the applicant to have surgery at that time. On examination, on 24 September 2002, the applicant’s visual acuity was less than 6/60 in the left eye, both corrected and uncorrected, and a best corrected visual acuity of 6/12 in the right eye. In accordance with Table 6.1 of the Comcare Guide, this represents a 35 percent impairment. He noted that this was more than before, due to the slight decrease in vision in each eye.
39. Comcare called Dr Crompton, who has not examined the applicant, but had been provided with relevant documentation, and had prepared a report dated 20 February 2003 [Exhibit R1]. He said in evidence that successful cataract surgery gives the best, most natural form of improvement of vision. It is most likely to give back normality of vision, but the patient will most likely need some form of spectacles, particularly for reading. In the present case, as the applicant drives, uses his glasses for reading, he has to be happy to accept the minimal risks involved, and if he is happy as he is, it is best left well alone.
40. Dr Crompton said in evidence that in his opinion, the applicant suffered an “injury” to the macula in the 1971 blast injury that produced scarring, and now with aging, and maturation of the scar, it has progressed and involved the favea which is the centre of the macula, and that has wiped out his central vision. The burns he suffered caused no significant visual disability at all. If his visual acuity was as asserted by Comcare, 6/18 in 1985, and if there was no other cause, then it would be due to a macula scar – an expected natural progression. He is now legally blind, in his left eye, and this is not correctible.
41. Dr Crompton reported [Exhibit R1] that as the applicant’s cataract in the right eye has no relationship whatsoever to the 1971 accident, and is indeed potentially curable by surgery, it should not be taken into account in assessing the degree of impairment under Table 6.1 of the Comcare Guide. The visual assessment, assuming the potential for vision in the right eye is 6/6, is reduced therefore to 20 percent only.
42. I have examined the whole of the evidence carefully and in detail, and I have taken into account the parties’ submissions. Dr Crompton is of the opinion, in effect, that the applicant suffered an injury, a scarring to the macula in the 1971 accident, and his present condition is the result of an expected and natural progression of the scar. I prefer Dr Lane’s evidence and opinion, that based on Dr Murchland’s report, the applicant’s loss of acuity in 1988, was approximately 6/12 or 5 percent; that the macula was not involved at that time, but that subsequently the scar progressed to involve the macula, and finally the favea, the most sensitive visual area of the macula. In my view, such an involvement of the macula, and extension of the scarring can be regarded as a quantitative and qualitative change in the patho-physiological condition, in accordance with the principle outlined in Maida. I am satisfied on the evidence that the applicant’s impairment was permanent as at 1 December 1988, but I regard the subsequent change in degree of his permanent impairment, to of itself, constitute a new permanent impairment pursuant to s 24 of the 1988 Act, and I so find.
43. In relation to the assessment of compensation under ss 24 and 27 of the 1988 Act, ss 24(5) and 24(6) of the 1988 Act require that Comcare determine the degree of permanent impairment under the Comcare Guide, and that degree of permanent impairment is to be expressed as a percentage. “Whole person impairment” is defined in the Glossary:
“Whole person impairment means the medical effects of an injury or a disease and is drawn from the American Medical Association Guides where it is there referred to as ‘whole man’ impairment. Evaluation of 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 on the activities of daily living. The Guides are 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.”
44. Table 6.1 “Disorders of Visual Acuity (Percentage Whole Person Impairment)” has readings for the left eye down the left-hand column, and readings for the right eye across the top line. In my view it is clearly the intention of the Comcare Guide that the percentage whole person impairment involves the combined readings for the left and right eyes, thus appraising the nature and extent of the effect of an injury on the person’s functional capacity and activities of daily living. Comcare’s submission that it is appropriate to remove from the assessment the applicant’s compensable right eye condition, would change the nature of the assessment. It would no longer be a “whole person impairment”.. In my view both readings must be taken into account. I am satisfied on the evidence and find as a fact that the whole person impairment applicable to the applicant is 35 percent – a reading of 6/60 for the left eye, and a corrected reading of 6/12 in the right eye. The percentage attributable to the post 1 December 1988 permanent impairment, is 35 percent less 5 percent – namely 30 percent.
45. For these reasons the Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration in accordance with the direction that the respondent deal with the applicant on the basis that he suffered a loss of vision, compensable under s 39 of the Compensation (Commonwealth Government Employees) Act 1971, and equivalent to 5 percent; that his impairment was permanent as at 1 December 1988; and that his whole person impairment attributable to the post 1 December 1988 permanent impairment, and pursuant to the Safety Rehabilitation and Compensation Act 1988, is 30 percent.
46. The respondent will pay the applicant’s costs to be agreed, or in default of agreement to be taxed by the Registrar or a District Registrar of the Tribunal.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed: .......................................................................................
AssociateDates of Hearing 31 March 2003 and 1 April 2003
Date of Decision 16 January 2004
Counsel for the Applicant Mr T McRae
Solicitor for the Applicant Moloney & Partners
Counsel for the Respondent Mr R Soulio
Solicitor for the Respondent Phillips Fox
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