Van Grinsven and Comcare

[2001] AATA 785

CATCHWORDS – COMPENSATION – an injury to each of the left and right knees - permanent impairment – assessment – whether impairment assessed in relation to each knee and the values combined or whether impairment assessed in relation to both injuries together – assessment where both injuries lead to same impairment - decision set aside.

Safety, Rehabilitation and Compensation Act 1988 – ss 4, 7, 14, 15, 16, 17, 18, 19, 20, 21, 22, 24, 25, 26, 27, 28, 29,

Comcare v Campbell (1999) FCA 1367
Commonwealth of Australia v Smith (1989) 10 AAR 277
Rothwell v Caverswall Stone Co. Ltd. [1944] 2 All ER 350
Whitaker v Comcare [1998] FCA 1099

DECISION AND REASONS FOR DECISION [2001] AATA 785

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          Q2001/112
GENERAL ADMINISTRATIVE DIVISION      )

Re:                 ENRICO VAN GRINSVEN

Applicant

And:              COMCARE

Respondent

DECISION

Tribunal:                   Miss S A Forgie (Deputy President)

Date:  14  September, 2001

Place:  Brisbane

Decision:  The Tribunal:

1.sets aside the decision of the respondent dated 2 January, 2001; and

2.substitutes a decision that the applicant suffered a whole person permanent impairment as a result of a bilateral knee condition and that the degree of impairment is 36%.

S A FORGIE
  Deputy President

REASONS FOR DECISION

On 2 February, 2001, the applicant, Mr Enrico Van Grinsven, lodged an application for review of a decision of a delegate of the respondent, Comcare, dated 2 January, 2001.  That decision was made under the Safety, Rehabilitation and Compensation Act 1988.  ("Act").  It affirmed an earlier decision of another delegate dated 17 August, 2000 determining that Mr Van Grinsven had suffered a whole person permanent impairment as a result of a bilateral knee condition and that the degree of impairment was 20%.  At the hearing, Mr Van Grinsven was represented by Mr Hanson QC with Mr Hume of counsel and Comcare by Mr Derrington of counsel.

THE ISSUE

1. The issue in this case is whether the degree of permanent impairment suffered by Mr Van Grinsven should be assessed in respect of each of his knees under the Guide to the Assessment of the Degree of Permanent Impairment ("Guide") and the values combined or whether there should be one assessment in respect of both knees.

BACKGROUND

1. The facts in this case were agreed between the parties and set out in an agreed statement of facts.  Mr Van Grinsven was born on 21 October, 1967 and is 33 years of age.  On 3 December, 1985, he enlisted in the Australian Army and continues to be a serving member.  On 16 March, 1994, Mr Van Grinsven lodged two claims for compensation.  One was in relation to injuries he received to his right knee on 7 February, 1986 and the other in relation to injuries he received to his left knee on 17 December, 1985.  Both injuries were received while undertaking basic training activities.  Over time, both injuries have worsened and, in 1994, Mr Van Grinsven was diagnosed as suffering from chrondromalacia patellae in each knee.  On 14 June, 1994, Comcare accepted liability for chrondromalacia patellae in both knees.  Following two reports by an orthopaedic surgeon, Dr Peter Boys, dated 20 April, 1994 and 27 May, 1994, Comcare offered Mr Van Grinsven a lump sum payment in relation to the injuries.  Mr Van Grinsven rejected that offer. 

1. Dr Boys reported on three occasions.  In his report of 20 April, 1994, Dr Boys assessed a 20% impairment under Table 9.5 in relation to Mr Van Grinsven's right knee and 10% in relation to his left knee (T documents, pages 105-109).  He amended these assessments to 10% and 5% respectively in his report of 27 May, 1994.  The basis for his amendment was that "… the impairment rating which I have provided does not fit with the legislative requirements of Mr Van Grinsven's claim." (T documents, page 110)

1. In a report dated 22 October, 1999, Dr Pentis, an orthopaedic surgeon, wrote a report regarding Mr Van Grinsven's knees.  After setting out the history he took and his clinical findings, Dr Pentis concluded that Mr Van Grinsven was suffering from chondromalacia patellae in both his knees.  He has been treated operatively for this condition in his right knee but has been left with residual problems. As Mr Van Grinsven ages, he wrote, he may need total knee joint replacements in his right knee but very little else can be done with regard to the knee cap.  Excision of the patella would leave him with residual weakness.  He has been treated with a Maquet procedure in respect of his left knee.  Arthroscopies would be unlikely to be of any benefit.  Long term, Dr Pentis considered, Mr Van Grinsven's condition may degenerate far enough to require a patellectomy but it would be best not to perform this surgery unless he had gross problems.

1. In so far as impairment is concerned, Dr Pentis wrote regarding the right knee:

"Currently the incapacity, using Table 9.2, is a 10% whole person impairment and using Table 9.5, a 20% whole person impairment.  The condition is stable but may degenerate somewhat further with time." (T documents, page 124)

and regarding the left knee:

"The incapacity, using Table 9.2, would be a 10% whole person impairment and using Table 9.5, a 20% whole person impairment.

The injury is permanent but may degenerate somewhat further with time." (T documents, page 125)

1. Ms Jacel Bertoldi is an occupational therapist who wrote a report dated 16 December, 1999 regarding Mr Van Grinsven.  She set out Mr Van Grinsven's medical history, the results of tests she conducted and her clinical findings, Ms Bertoldi concluded:

"1        Loss of less than half normal range of movement (R) knee

(10% Whole Person Impairment under Table 9.2)
(20% Whole Person Impairment under Table 9.5)

2Loss of less than half normal range of movement of (L) knee

(10% Whole Person Impairment under Table 9.2)
(20%) Whole Person Impairment under Table 9.5)

From the above noted objective results, the following is provided to summarise Mr Van Grinsven's overall level of lower limb impairment.

·Can rise to standing position and walk but has difficulty with grades, steps and distances (20% Whole Person Impairment under Table 9.5)

NB:The above noted difficulties are as per the guidelines provided by

Comcare Australia in the 'Guide to the Assessment of the Degree of Permanent Impairment' and not the impairment as a percentage value of the functional capacity of a normal healthy person." (T documents, page 131)

1. In a letter dated 21 March, 2000, Mr Van Grinsven's solicitors claimed that Mr Van Grinsven should be assessed as having a 10% Whole of Person Impairment under Table 9.2 of the Guide or, in the alternative, as having a 20% Whole of Person Impairment under Table 9.5.  On 18 July, 2000, Comcare offered Mr Van Grinsven a lump sum payment.  It was calculated, in part, on the basis that Mr Van Grinsven had suffered a whole of person impairment as a result of his compensable injury and was entitled to be paid compensation pursuant to s. 24 of the Act.  The degree of that impairment was 20% (T documents, page 148).  The offer was accepted by Mr Van Grinsven on 24 July, 2000 (T documents, page 154) and Comcare then made the determination in those terms (T documents, pages 158-159).

1. On 2 October, 2000, Mr Van Grinsven sought review of that determination on the basis that Comcare had failed to take into account whole person impairment percentages attributed under Table 9.5 of the Guide.  That Table, his solicitors said on his behalf, is more beneficial to him than the whole of person impairment assessed under Table 9.2 bilaterally.  They assumed that the determination had been made on the basis of a bilateral assessment.  Referring to the case of Whitaker v Comcare [1998] FCA 1099, (1998) 28 AAR 55, his solicitors stated that Mr Van Grinsven should be given the benefit of the more beneficial table where two tables of the Guide may be applicable.

SUBMISSIONS

1. The essence of Mr Hanson's submissions was that Mr Van Grinsven has suffered two impairments; one to each knee.  The assessment under the Guide should be conducted in relation to each impairment and the values combined according to Table 14.  Relying on Whitaker v Comcare, he submitted, there should be a determination in respect of each knee as to whether Table 9.2 or Table 9.5 gives the more favourable result.  This approach accorded, he added, with that taken by Einfeld J in Comcare v Campbell (1999) FCA 1367 at paragraphs 2-4.

1. The essence of Mr Derrington's submissions was that it was logically impossible to assess Mr Van Grinsven's impairment under Table 9.5 in terms of rising, walking, standing and the like by reference to only one knee complaint when both are injured.  The activities of rising, walking and standing are necessarily functions that require the use of both limbs.  The sequelae of one knee condition cannot be disassociated from the other.  The impairment resulting from the first injury is such that the second injury does not worsen the impairment.  This is consistent with s. 24(1) of the Act which provides for compensation where "… an injury results in a permanent impairment …" (emphasis added).  Where a second injury does not result in any greater impairment than resulted from the first, no compensation is payable. 

1. Mr Derrington sought to distinguish the case of Campbell on the basis of its facts.  The facts are different in that Ms Bertoldi has assessed the whole body impairment resulting from bilateral chrondromalacia patellae and there had been no such assessment in Campbell.  Rather, in Campbell, there had been separate impairments scored and accumulated.  In the case of Mr Van Grinsven there is only one impairment as the same impairment arises from both injuries.

LEGISLATIVE FRAMEWORK

1. Comcare's liability to pay compensation is set out in ss. 14 and 15 in Part II of the Act.  Section 15 is concerned with compensation for loss or damage to property used by an employee.  It is not relevant in this case.  Section 14 is concerned with compensation for injuries.  Section 14(1) provides that:

"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."

In certain circumstances, compensation is not payable in respect of an injury but those circumstances do not exist in this case.

1. The term "injury" is defined in s. 4(1) to mean:  

"(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".

The word "disease" is defined to mean:

"(a)     any ailment suffered by an employee; or

(b)the aggravation of any such ailment;

being an ailment or aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation". (s. 4(1))

An "ailment" is, in turn, defined to mean "… any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development" (s. 4(1)).  Each of the meanings given in s. 4(1) is to be given to the words in the Act "… unless the contrary intention appears …".

1. Part II of the Act then goes on to provide for compensation for specific property loss or damage (s. 15), medical expenses (s. 16) and household and attendant care services (s. 29).  It deals specifically with compensation payable where an injury results in death (ss. 17 and 18), where a person is incapacitated for work as a result of an injury (ss. 19-22) and where an injury results in permanent impairment (ss. 24-27).  In this case, I am concerned with those provisions relating to permanent impairment. 

1. Section 24(1) provides that:

"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."

The expression "permanent impairment" is not defined but each word is defined separately.  The word "permanent" is defined to mean "… likely to continue indefinitely…" (s. 4(1)) and "impairment" to mean "… 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" (s. 4(1)). 

1. The amount of compensation that Comcare is liable to pay to an employee is the amount it assesses according to s. 24(4) provided that amount does not exceed the maximum amount at the date of the assessment.  Section 24(4) provides that the amount assessed by Comcare must be a percentage of the maximum amount and that percentage must be the same percentage of the maximum amount as the percentage determined by Comcare under s. 24(5).  The percentage is in fact determined by reference to ss. 24(5) and (6).  They provide:

   "(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."

2. Where Comcare determines that the degree of permanent impairment is less than 10%, an amount of compensation is not payable under s. 24.

3. In so far as it is relevant, s. 7(6) provides that:

"An … impairment of an employee shall be taken, for the purposes of this Act, to have resulted from a disease, or an aggravation of a disease, if, but for that disease or aggravation, as the case may be:

(a)the …impairment would not have occurred;

(b)… the impairment would have occurred, at a significantly later time; or

(c)the extent of the … impairment would have been significantly less."

1. Section 25 provides that Comcare may make an interim determination of a person's degree of permanent impairment and assess an amount of compensation payable to him or her.  Comcare may only do that if it makes a determination that an employee is suffering from a permanent impairment as a result of an injury and, although it has not made a final determination of the degree of permanent impairment, is satisfied that the degree is equal to or more than 10%.  Where Comcare has made a final assessment of the degree of an employee's permanent impairment, s. 25(4) provides that "… no further amounts of compensation shall be payable to the employee in respect of a subsequent increase in the degree of impairment, unless the increase is 10% or more." (s. 25(4))

1. The approved Guide referred to in s. 25 is that prepared by Comcare in accordance with s. 28 under the title of "Guide to the Assessment of the Degree of Permanent Impairment" and is approved by the Minister.  That Guide sets 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 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 non-economic loss, as determined under those criteria, shall be expressed as a percentage." (s. 28(1))

In preparing criteria for the purposes of ss. 28(1)(a) and (b), Comcare is required to have regard to "… medical opinion concerning the nature and effect (including possible effect) of the injury and the extent (if any) to which impairment resulting from the injury or impairment, may reasonably be capable of being reduced or removed." (s. 28(6))

1. The Guide sets out principles of assessment.  In relation to impairment and non-economic loss, which is the subject of Part B of the Guide, it provides:

"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.

Impairment is measured against its effect on personal efficiency in the 'activities of daily living' in comparison with a normal health person.  The measure of 'activities of daily living' is a measure of primary biological and psychosocial function such as standing, moving, feeding and self care.

Non-economic loss, which is assessed in accordance with Part B of the Guide, is a subjective concept of the effects of the impairment on the employee's life. It includes pain and suffering, loss of amenities of life, loss of expectation of life and any other real inconveniences caused by the impairment.

Whilst 'activities of daily living' are used to assess impairment they should not be confused with 'lifestyle effects' which are used to assess non-economic loss. 'Lifestyle effects' are a measure of an individual's mobility and enjoyment of, and participation in, recreation, leisure activities and social relationships. It is emphasised that the employee must be aware of the losses suffered. While employees may have equal ratings of impairment it would not be unusual for them to receive different ratings for non-economic loss because of their lifestyles." (page 3)

1. The Guide goes on to explain that its assessment under Part A, which sets out the Impairment Tables, 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." (page 4) 

The concept of "whole person impairment" is expanded upon in the Glossary to the Guide:

"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." (page 8)

1. The Guide is "… 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." (page 4)  Examples of the groups into which impairments are gathered are cardio-vascular system (Tables 1.1-1.3), respiratory system (Tables 2.1-2.2), musculo-skeletal system (Tables 9.1-9.6) and neurological function (Tables 12.1-12.5) and psychiatric conditions (Table 5.1).  Table 5.1 is concerned with psychiatric conditions. 

1. The Guide emphasises that:

"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." (page 5)

1. It is recognised that a loss of function may be assessed by reference to more than one table in the Guide.  Should that occur, the Guide states that:

"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)" (page 5)

1. Where a person suffers from more than one impairment, the values must be combined using the Combined Values Table in Table 14.  That table is intended, the Guide states,

"… 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 …" (page 5)

1. Tables 9.2 to 9.5 are relevant in this case and they are grouped with others under the heading of "Musculo-skeletal system".  The introduction to all of those Tables is found under the heading of Table 9.1, which is headed "Upper Extremity".  Its content indicates that it is of general application and not limited to Table 9.1.  The introduction states:

"… These tables are intended to be used to assess impairment arising from specific joint lesions or amputations. Where the joints function normally but the use of a limb is restricted for other reasons, eg soft tissue injury, nerve injury or bony injury not involving joints, Tables 9.4 or 95 should be used. These Tables can be used to assess the impairment of overall limb function from any cause. NOTE: either the musculo-skeletal table or Table 9.4 or 9.5 should be used – not both.

Assessment is in accordance with the range of joint movement. X-rays should not be taken solely for assessment purposes.

NOTE: Values are for one joint only.  Where more than one joint is affected, values should be combined using the Combined Values Table (Table 14.1)."

1. Table 9.2 is headed "Lower Extremity (Percentage Whole Person Impairment)" and reads, in part:

"%      DESCRIPTION OF LEVEL OF IMPAIRMENT

0X-ray changes but no loss of function of hip, knee or ankle

OR

Ankylosis or lesser changes in any toes except the first hallux

5Loss of less than half normal range of movement of ankle.

10ANY ONE of the following:

.          loss of less than half normal range of hip or knee
.          loss of half normal range of movement of ankle
.          ankylosis of first hallux

15Loss of any more than half normal range of movement of ankle

20ANY ONE of the following:

.          Loss of half normal range of movement of hip or knee
.          ankylosis of ankle

30Loss of more than half normal range of movement of hip or knee

40Ankylosis of hip or knee

NOTES:

1.Where a joint has been surgically replaced assessment is in accordance with its function.

2.Shortening of the lower extremity by 2.5cm or more is in (sic) impairment of 5%.

3.For conditions not covered (such as flail joints) the assessment should have regard to the loss of function (not exceeding the maximum allowed for amputation).

4.Values are for one joint only.  Where more than one joint is affected, values should be combined using the Combined Values Table (Table 14.1)."

1. Table 9.5 is headed "Limb function – Lower Limb (Percentage Whole Person Impairment)" and reads:

   "%      DESCRIPTION OF LEVEL OF IMPAIRMENT

   10Can rise to standing position and walk BUT has difficulty with grades and steps

   20Can rise to standing position and walk but has difficulty with grades, steps and distances

   30Can rise to standing position and walk with difficulty BUT is limited to level surfaces

   50Can rise to standing position and maintain it with difficulty BUT cannot walk

   65Cannot stand or walk"

CONSIDERATION

1. I am bound by the judgement of Einfeld J in Campbell but, as Mr Derrington sought to distinguish it, I have considered the matter first in relation to the Act itself.  It is clear from the structure of the Act that several steps must be taken before an employee is entitled to compensation for a permanent impairment.  The first step of relevance in this case is the determination that a person has suffered an injury within the meaning of the Act.  There is no question in this case that Mr Van Grinsven has suffered two separate and distinct injuries; one to his right knee and one to his left knee. 

1. The second step is to identify the permanent impairment that results from each injury.  That is so because s. 24(1) of the Act provides that Comcare is liable to pay compensation to an employee in respect of an injury where that injury results in a permanent impairment.  The requirement that the injury must result in a permanent impairment leads to the conclusion that there must be a causal link between the injury and the employee's permanent impairment.  The need to determine whether there is such a causal link is illustrated by the case of Rothwell v Caverswall Stone Co. Ltd. [1944] 2 All ER 350 (Court of Appeal, Luxmoore and du Parcq LJJ, Scott LJ dissenting). That was a case concerned with incapacity but its principles are equally applicable to a consideration of whether a permanent impairment results from an injury as it is to whether an incapacity does so.

1. An employee had suffered an injury but, due to the negligence of the doctor at the hospital he attended, the fractured dislocation of his shoulder was not discovered.  When his shoulder injury was discovered, it was too late for treatment to be successful.  The issue before the Court was whether the employee's incapacity resulted from the injury that arose out of and in the course of his employment or whether it resulted from the negligence at the hospital.  Scott LJ dissented on the basis that any decision that made recovery of compensation dependent upon the skill of a doctor would be contrary to the public policy upon which workers' compensation legislation is based.  Negligent medical treatment following the injury could not, as a matter of law, be regarded as a novus actus interveniens.  That is to say, it could not be regarded as a new cause of the injury.  His Honour did not dissent on the basis that the issue is one of causation.

1. Luxmoore and du Parcq LJJ considered the issue of causation to be simply one of fact.  Whether or not the same conclusion would be reached today on the evidence before the court is not relevant.  It is the principles that are relevant.  In his judgement, du Parcq LJ set out the principles for determining that issue:

"In my opinion, the following propositions may be formulated upon the authorities as they stand: first an existing incapacity 'results from' the original injury if it follows, and is caused by, that injury, and may properly be held so to result even if some supervening cause has aggravated the effects of the original injury and prolonged the period of incapacity. If, however, the existing incapacity ought fairly to be attributed to a new cause which has intervened and ought no longer to be attributed to the original injury, it may properly be held to result from the new cause and not from the original injury, even though, but for the original injury, there would have been no incapacity. Secondly, negligent or inefficient treatment by a doctor or other person may amount to a new cause and the circumstances may justify a finding of fact that the existing incapacity results from the new cause, and does not result from the original injury. This is so even if the negligence or inefficient treatment consists of an error of omission whereby the original incapacity is prolonged. In such a case, if the arbitrator is satisfied that the incapacity would have wholly ceased but for the omission, a finding of fact that the existing incapacity results from the new cause, and not from the injury, will be justified." (page 365)

1. Similar principles were applied by von Doussa J in Commonwealth of Australia v Smith (1989) 10 AAR 277 where Mr Smith had claimed compensation for an injury in relation to his wrist. Von Doussa J said:

"Incapacity due to disabling psychological symptoms precipitated by minor physical injury to a person already suffering a neurotic temperament is a well recognised and unfortunately common phenomenon. If the precipitating injury occurs in compensable circumstances, the incapacity caused by the psychological symptoms is compensable even though the physical effects of the injury may resolve quickly. In such a case the injury is an element which only completes the tale of circumstances which constitutes the cause of the incapacity in the non-legal sense, but in the legal sense it is itself the cause of the incapacity which "results" from it: see Ward v Corrimal-Balgownie Collieries Pty Ltd [1972] 2 NSWLR 29 at 44, whose judgment was upheld by the High Court, (1973) 47 ALJR 236. Typical examples, to which reference was made during argument, are to be found in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626; SA Stevedoring Co Ltd v Gerai [1965] SASR 212 and Attorney-General v Gabell [1968] SASR 44. In an important respect this case is different from those examples. Here the undisputed medical evidence shows that the respondent's worry in late 1985 and in 1986 about his hepatitis, his prostate condition, and his interpersonal difficulties on the MV Cape Don were also causes for the disabling manifestation of his psychogenic pain disorder at and subsequent to 6 March 1986. These causes did not pre-date the compensable injury. Insofar as the psychogenic pain disorder was due to worry about these matters, it cannot be related to the compensable injury in 1983.

However, it is clear law that it is not necessary for an incapacity to result solely from a compensable injury before compensation is payable as a consequence of that injury: Harwood v Wyken Colliery Co [1913] 2 KB 158 at 162. It is sufficient if the injury contributes in a material sense to the incapacity: Federal Broom Co Pty Ltd v Semlitch, per Taylor J at 635; Attorney-General v Gabell, per Bray CJ at 48, 50. If a compensable injury constitutes one of a number of factors or events each of which combine as links in a chain of causation terminating in a single condition amounting to total incapacity, that incapacity will be fully compensable, the injury being a contributing cause in a material sense: see Bratovich v Rheem (Aust) Pty Ltd (1971) 2 SASR 33 at 43, per Bray CJ. The critical consideration is that a single condition arises causing incapacity even though the condition may have independent causes. Such a case is to be distinguished from one where independent causes produce independent consequences, distinct bodily conditions which amount to total incapacity only because they must be added together: see Ward v Corrimal-Balgownie Collieries Ltd, especially at 141, per Dixon J, as he then was. See also Morris v George [1977] 2 NSWLR 552 especially at 580, per Glass JA, and on appeal to the Privy Council Bushby v Morris [1980] 1 NSWLR 81." (pages 284-285)

1. Applying these principles, the first thing to resolve in this case is the impairment that resulted from Mr Van Grinsven's injury to his left knee and from that to his right knee.  Both Dr Pentis and Ms Bertoldi have assessed separately the impairment that results from the injury to the left and right leg.  They have done so in the context of Table 9.2 and both have assessed Mr Van Grinsven's impairment under that table as 10%.  In the case of Table 9.5, it may conceptually be a more difficult exercise to assess each knee separately for functions such as rising and walking generally require the involvement of both legs and so of both knees.  Is it necessary to do so?

1. There are three matters to be considered in answering this question.  The first is that, in considering the loss of function (and so permanent impairment) that results from an injury, regard must be had to the particular circumstances of the person injured.  That is apparent from the passage I have set out above from the judgement of von Doussa J said in Commonwealth of Australia v Smith (see paragraph 35 above).  It follows that, when a person has one compensable injury and then suffers a second compensable injury, his or her impairment resulting from the second injury must be assessed having regard to the impairment from which he or she already suffers.  That requires a consideration of issues of causation.  It also requires a differentiation between impairment resulting from the injury and impairment from which a person suffers as a result of a combination of distinct impairments resulting from the injury and other distinct non-compensable conditions.  This distinction was also made by von Doussa J.

1. The second matter that must be considered is that s. 24(1) provides that "Where an injury … results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury."  A single assessment of a person's loss of function as a result of separate injuries to his or her knees would not lead to his or her being compensated for the injury to his or her right knee and for the injury to his or her left knee.

1. The third matter that must be taken into account relates to the wording of Table 9.2.  It is headed in the singular ("Lower Extremity") rather than in the plural.  The description of each level of impairment is drafted in the singular.  So, for example, it refers to the loss of function of "hip, knee or ankle" and to the loss of movement of "hip or knee".  Note 4 to Table 9.2 makes it quite clear that the choice of the singular form is deliberate for it states that "Values are for one joint only."

1. Taking these three matters into account, it seems to me that the permanent impairment resulting from each injury must be assessed separately.  There is another matter that supports this conclusion.  Note 4 to Table 9.2 concludes by stating that "Where more than one joint is affected, values should be combined using the Combined Values Chart."  That note does not refer to whether the joint is impaired as a result of a single injury or more than one injury.  The note, however, must be read in the context of the principles of assessment.  They state that "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." (emphasis added, see paragraph 23 above).  That points to the assessment of permanent impairment being for that resulting from a single injury.

1. It follows, in my view, that the permanent impairment arising from each of Mr Van Grinsven's injuries should be assessed separately.  That is not an end of the matter, though.  Regard must also be had to the further principle of assessment at the beginning of the Guide.  Those principles state that, where "… two or more injuries give rise to the same impairment a single rating only should be given."  It follows that if Mr Van Grinsven should have the same impairment, he is given only a single rating.  In the context of Table 9.2, this is not relevant for the level of impairment is determined in relation to each joint regardless of whether the impairments arise out of a single injury or two injuries.  The impairments, being a loss of function represented by a loss of movement of a joint and the like, are separate impairments relating, as they do, to separate joints. 

1. The issue of whether a person has the same impairment is relevant in the case of Table 9.5 for it may be that Mr Van Grinsven will have the same level of loss of function whether it is assessed in relation to the impairment he has suffered from one injury or two.  If, for example, he cannot stand or walk as a result of the injury to his left knee and cannot stand or walk as a result of the injury to his right knee, he has the same impairment.  It would follow from an application of the principles of assessment to the Guide that Mr Van Grinsven should be assessed as having only a single rating.  In the case of his being unable to stand or walk, the rating would be 65%.  As it is, Dr Pentis and Ms Bertoldi have assessed Mr Van Grinsven as having, in the words of Dr Pentis, a 20% "whole person impairment" and, in the words of Ms Bertoldi, an "overall level of lower limb impairment" of 20%.  The finding of a single rating would accord not only with the principles of assessment to the Guide but with s. 24 of the Act.  Applying the principles of causation set out in Rothwell v Caverswall Stone Co. Ltd., it is apparent that an injury cannot be said to result in a loss of function and so in a permanent impairment if a person has lost that function as a result of another condition, be it compensable or otherwise.   A function, once lost, cannot be lost again even though a person suffers a second injury which would itself lead to that loss if the first had not occurred.

1. That brings me to the case of Comcare v Campbell decided by Einfeld J.  His Honour rejected a submission by Comcare that Table 9.5 required, not an assessment of impairment in respect of both of Mr Campbell's limbs, but a "sort of generic assessment of the effect of the two leg disability on what is called in the table the 'whole person impairment'.  In other words, the Secretary argued that there should only have been one assessment and not two, saying that the Tribunal's use of table 14.1 represented a fundamental misunderstanding of the operation of the guide." (paragraph 3).  In doing so, Einfeld J said:

"… In my opinion, the guide is, as has been held in other cases, not intended to be a rod for the purpose of imposing limitations and restrictions on injured persons who come within its framework, but a means of facilitating the calculation of their disability and therefore the compensation to which they become entitled by the various factual findings of the Tribunal. When it speaks of 'injury' and 'permanent impairment', the Act clearly has in mind the separate injuries to and disabilities from the separate injured limbs and not some meshing of the effects of separate injuries and separate disabilities and impairments. Were that not the case and the case was dealing with an injured leg and an injured arm, the person would not on the Secretary's argument be entitled to compensation calculated by reference to the disability flowing from each of the injuries but a quite arbitrary assessment of the effect of the two injuries on the whole person impairment through conclusions about one of them. In my view, the Tribunal manifested no error in its finding that Mr Campbell had suffered injuries to both limbs, that he was entitled to an assessment in respect of both of them, and that the overall assessment of disability under table 14.1 was what the legislation required." (paragraph 4)

1. As I understand this passage from his Honour's judgement, the principles it sets out are consistent with those I understand to be inherent in the Act and the Guide.  The principles set out by Einfeld J must, however, be read in light of the Tribunal's decision he was considering.  The Tribunal had determined the disability in respect of each leg under Table 9.5 as 20%.  By applying Table 14.1, it assessed Mr Campbell's total impairment as 36%.  By assessing the impairment in respect of each leg at 20%, the Tribunal must have been satisfied that Mr Campbell could rise to a standing position and walk but that he had difficulty with grades, steps and distances.  It would seem to be the same impairment and yet his Honour made no reference to the statement of principle that a single rating should be given where two or more injuries give rise to the same impairment.

1. Although Mr Derrington sought to distinguish Einfeld J's judgement, I am unable to do so.  It seems to me that it is directly on point.  Although my understanding of the Act and the Guide would lead me to determine that Table 14.1 should not be applied when each injury results in the same impairment, I am bound by the judgement and bound to apply it in this case. 

1. Turning to the medical evidence in this case, each of Dr Pentis, Dr Boys and Ms Bertoldi assessed the impairment resulting from the injuries to each of Mr Van Grinsven's knees.  Unfortunately, the basis upon which Dr Boys has altered his assessment is not clear from the reports.  The basis on which both Dr Pentis' and Ms Bertoldi have written their reports is clear.  They have assessed each injury and given each ratings under two tables of the Guide.  As I have said, they have each rated Mr Van Grinsven's impairment under Table 9.2 in relation to each knee as 10%.  Pursuant to Table 14.1, that leads to a combined impairment value of 19%. 

1. In assessing the same degree of impairment under Table 9.5 in respect of each impairment, it is clear that each injury has led to the same impairment i.e. that Mr Van Grinsven could rise to a standing position and walk but that he had difficulty with grades, steps and distances as a result of the injury to either his left or his right knee.  Ms Bertoldi has effectively stated that it is the same impairment when she offers an additional assessment of Mr Van Grinsven's "overall level of lower limb impairment" (T documents, page 131).  Her assessment of his overall lower limb impairment is 20% and so the same level of impairment as she had assessed in respect of each knee.  In view of the evidence in this case, I find that the level of impairment resulting from each of Mr Van Grinsven's knee injuries is 20%.  Were I not bound by the judgement in Comcare v Campbell, I would find that Mr Van Grinsven's impairment rating under Table 9.5 is 20% and, in view of the principles in Whitaker v Comcare, would decide that his permanent impairment should be assessed as 20%.  I would, therefore, have affirmed the decision.  Applying the principles in Comcare v Campbell, however, I must combine the two degrees of impairment under Table 14.1.  That leads to a decision that Mr Van Grinsven's permanent impairment arising from his compensable injuries is 36%.

1. For the reasons I have given, I:

1.set aside the decision of the respondent dated 2 January, 2001; and

2.substitute a decision that the applicant suffered a whole person permanent impairment as a result of a bilateral knee condition and that the degree of impairment is 36%.

I certify that the forty eight preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President)

Signed:          ............................................................................
  Clancy Riddiford       Associate

Date of Hearing       20 July, 2001
Date of Decision       14  September, 2001
Counsel for the Applicant                 Mr Hanson QC; Mr Hume
Solicitor for the Applicant                D'Arcys          
Counsel for the Respondent             Mr Derrington            
Solicitor for the Respondent             Australian Government Solicitor