Steven Rogers and Comcare
[2012] AATA 565
[2012] AATA 565
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/0457
Re
Steven Rogers
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 28 August 2012 Place Brisbane (Heard in Alice Springs) The decision under review is affirmed.
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Senior Member Bernard J McCabeCATCHWORDS
COMPENSATION – workplace injury – permanent impairment not compensable under previous legislation – assessment of impairment – insufficient medical evidence – decision affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
REASONS FOR DECISION
Senior Member Bernard J McCabe
28 August 2012
Mr Steven Rogers was badly injured in a motorcycle accident on his way to work on 23 April 1970. His left leg was amputated below the knee and he experienced fractures in the right tibia and fibia. It has now become apparent he also fractured vertebra in his back at the time of the accident.
The respondent accepted liability for a number of conditions arising out of the accident, including the leg conditions and the vertebra fractures and osteoarthritis of the right knee.
Mr Rogers has been paid compensation for permanent impairment in respect of the leg conditions. Although there was some confusion about this, he told me at the hearing he accepts he is not eligible to receive any further compensation in respect of the left limb or the fractured tibia and fibia in his right leg. I think he is right to make that concession: he received lump sum payouts many years ago, which effectively draw a line under Comcare’s liability. The adequacy or wisdom of those payouts cannot now be questioned.
Comcare goes on to say the applicant is not eligible to receive any compensation in respect of permanent impairment arising out of his back condition. Ms Ford, who appeared for Comcare, explained the argument as follows. The accident occurred at a time when the old Commonwealth workers’ compensation laws were still in force. Those laws did not provide for compensation in respect of permanent impairment arising out of fractured vertebra. The current law – the Safety, Rehabilitation and Compensation Act 1988 (Cth) – says an applicant is entitled to compensation under the current Act if he or she would be entitled to compensation under the legislation in force at the time when the injury or condition arose. Since that legislation did not provide for compensation for permanent impairment, the applicant’s claim for compensation under the current law must fail.
Sadly for Mr Rogers, Comcare is right. He points out the fractured vertebra were only recently identified. Until that occurred, he always assumed his back pain was connected with the instability that occurred following his leg injuries. He notes the authorities doubted his claims of back pain for all those years, and he is more than a little annoyed that Comcare now says the back condition it had previously refused to acknowledge was not compensable because of the law. While I understand his frustration and confusion, the medical evidence seems clear enough. His back condition can be traced to the fractured vertebra. Permanent impairment from that injury is not compensable under the old laws, which are effectively still in force now. The fact Comcare is required to refer to other legislation in the discharge of its functions does not change that conclusion.
That leaves the knee condition. Comcare has assessed Mr Rogers as having a 15% permanent impairment in respect of the osteoarthritis condition in his right knee. That condition resulted in knee replacement surgery in November 2010. The applicant’s recovery from that surgery was complicated when he had a fall in December 2010. He experienced a rupture in the muscles above the knee. He says Comcare should take responsibility for all of that damage – not just the osteoarthritis – since the fall in December occurred because the applicant was unstable owing to his prosthetic leg.
Mr Rogers was under the impression Comcare was refusing to compensate for anything more than the osteoarthritis condition. It became apparent from the evidence of Dr Talbot, the consultant orthopaedic surgeon called by Comcare, that the respondent’s assessment of the applicant’s impairment did take into account the disability occasioned by the muscle rupture that occurred in December 2010.
Dr Talbot gave evidence at the hearing. He insisted he conducted his assessment according to the relevant tables in the AMA Guide, which he says is widely accepted as the superior guide for the assessment of impairment. I note Mr Rogers was concerned Dr Hayes had offered a different, more advantageous assessment of the applicant’s impairment. Ms Ford pointed out Dr Hayes used a different guide to assessment of impairment, and in any case his assessment pre-dated the surgery on the applicant’s knee in November 2010. Dr Talbot’s opinion should therefore be favoured, if only because his assessment was more recent and took into account the effect of the surgery and the post-operative complications.
Mr Rogers appeared to be more debilitated at the hearing than one would expect having regard to the opinion of Dr Talbot. Mr Rogers recounted advice he had received from Professor Graves, his own surgeon, which might usefully have been put to Dr Talbot, or perhaps offered as an alternative. Mr Rogers was unable to provide a report from Professor Graves and he says he is unwilling to get one. That is unfortunate. An opinion from the applicant’s treating doctor may have been useful. In the absence of that opinion, I am constrained to accept the evidence of Dr Talbot.
CONCLUSION
The applicant cannot be further compensated for his amputated leg and fractured tibia and fibia. He has already been fully compensated for those conditions under the earlier legislation. There is no compensation available for permanent impairment arising out of the back condition because of the operation of the law. It also appears the applicant is receiving the appropriate amount of compensation in respect of his knee condition in light of the available medical evidence. In those circumstances, the decision under review must be affirmed.
I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe. ................................................................
Associate
Dated 28 August 2012
Date(s) of hearing 30 July 2012 Applicant Self-represented Counsel for the Respondent Ms Ford
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