William Blade and Comcare
[2014] AATA 847
•12 November 2014
[2014] AATA 847
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/2506
Re
William Blade
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 12 November 2014 Place Brisbane The Safety, Rehabilitation and Compensation Act 1988 (Cth) should apply on its terms to the assessment of the applicant’s permanent impairment in respect of his shoulder conditions.
........................................................................
Senior Member Bernard J McCabe
CATCHWORDS
COMPENSATION – Preliminary legal issue – Applicable legislative scheme for assessment of permanent impairment – Liability accepted for initial injuries sustained in 1970 – Secondary conditions developed in 1995 and 2012 – Changes to Commonwealth legislation – Discreet injury – Older legislation does not apply – Section 24 of the Safety, Rehabilitation and Compensation Act 1988(Cth) applies.
LEGISLATION
Commonwealth Employees’ Compensation Act 1930 (Cth)
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A; 24; 124
CASES
Canute v Comcare (2005) 40 AAR 327
Canute v Comcare (2006) 226 CLR 535
REASONS FOR DECISION
Senior Member Bernard J McCabe
12 November 2014
This case raises a preliminary question which I have been asked to resolve in advance of a final hearing. The question arises out of the fact the applicant was originally injured at work in 1970 but developed secondary conditions in 1995 and 2012. The Commonwealth legislation governing compensation for injured employees changed several times during this period. The applicant says the condition that manifested in 2012 should be dealt with under the old legislation which is more favourable from his point of view.
Comcare, the respondent, says the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) applies.
THE HISTORY
Mr William Blade was injured in a work-related motorbike accident in 1970.
The Commonwealth accepted liability for multiple lacerations and abrasions under the Commonwealth Employees’ Compensation Act 1930 (Cth) (“the 1930 Act”).
The Commonwealth subsequently accepted liability for degenerative osteoarthritis of each knee in 1983 and determined that compensation was payable for permanent impairment in 1995. Those decisions were made under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (“the 1971 Act”): see p 27 and p 63 of the Tribunal documents provided pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth). Upon reconsideration, Comcare determined compensation for permanent impairment was properly dealt with under the provisions of the SRC Act rather than the 1971 Act as the impairment did not become permanent until after 1 December 1988 when the SRC Act came into force. Comcare’s determination (at p 74 of the Tribunal documents) confirms this was the outcome sought by Mr Blade.
Mr Blade made a further claim for compensation for bilateral shoulder injuries which he claims are secondary to his knee conditions (he says he has injured his shoulders because he is forced to lift himself using his shoulders instead of his legs since his knee replacement surgery in 2012). The claim in respect of his shoulders was made on
1 December 2012.
Comcare accepted in its statement of facts, issues and contentions that the applicant’s shoulder injuries arose out of excessive strain following the bilateral knee replacement surgery. There is, at this stage, some uncertainty on the face of the medical evidence over whether Mr Blade had a pre-existing shoulder condition that was aggravated as a consequence of the knee surgery in 2012, or whether the shoulder injury was in fact sustained at that point. Comcare says it does not matter for present purposes as the applicant has made a claim for permanent impairment and on any view of the evidence the shoulder condition did not become permanent until 2012. In those circumstances, Comcare says the claim for permanent impairment in respect of the shoulders should be dealt with under Part II of the SRC Act. Mr Blade, for his part, says the transitional provisions in s 124 of the SRC Act apply. If he is right, the permanent impairment claim in respect of the shoulders is dealt with under the older legislation. That would be to his advantage because each of the applicant’s shoulders has been determined to result in a 7% impairment, and s 24(7) of the SRC Act provides permanent impairment compensation is not payable under that Act if Comcare determines the degree of permanent impairment is less than 10%.
WHICH LEGISLATION APPLIES?
I do not think anything turns on the fact Mr Blade has previously argued his permanent impairment claim in respect of the knees should be dealt with under the SRC Act instead of the 1971 Act. In any event, I shall put that decision to one side. I will focus instead on the arguments in relation to the claim for permanent impairment in respect of the shoulders. I will do so on the basis the impairment became permanent in 2012.
The applicant argues in his statement of facts, issues and contentions that his shoulder conditions are in fact a single injury which is directly linked to the injury that occurred in 1970. He relies on the policy which he says is evident in s 124 of the SRC Act – and which has been the subject of comment in a number of older decisions of the Federal Court – to the effect that s 124 is not intended to deprive an applicant who was injured before the commencement of the SRC Act of his or her accrued rights under the former legislation. As a practical matter, that means the limitation in s 24(7) of the SRC Act should not be a barrier to Mr Blade because the former legislation did not include that requirement.
That approach is not consistent with the High Court’s decision in Canute v Comcare (2006) 226 CLR 535. In that case, the Court pointed out s 24 was designed to provide compensation in respect of permanent impairment that flows from an injury. The Court quoted with approval from the decision of Hill J below who had observed:[1]
The fact that the two injuries were caused by a single event ... is not a relevant question under the Act. The Act is concerned with injuries, not incidents.
[1] Canute v Comcare (2005) 40 AAR 327 at 336, quoted with approval in Canute v Comcare (2006) 226 CLR 535 at 545.
The High Court in Canute emphasised one must focus on the relevant injury, which is defined in s 5A of the SRC Act. If the shoulder condition meets the definition of an injury, then it must be dealt with under s 24 as a discreet injury. To do otherwise would lead to the error of treating the shoulder injury “as an aspect of the impairment created by the initial injury”. That approach (involving the application of labels like “consequential” or “secondary injuries”) was expressly rejected by the High Court.[2]
[2]Canute v Comcare (2006) 226 CLR 535, 545 at [34].
The medical evidence suggests the injury in question – whether described as an aggravation of bilateral rotator capsule strain or a fresh injury – occurred in 2012.
The impairment that flowed from that injury became permanent at some point thereafter. There is no warrant for effectively “back-dating” that injury to the date of the original injury in 1970, and no basis for applying the older legislation. The SRC Act should apply on its terms to the 2012 injury.
I certify that the preceding 9 (nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe. ........................................................................
Associate
Dated 12 November 2014
Solicitors for the Applicant Somerville Laundry Lomax Solicitors Solicitors for the Respondent Australian Government Solicitor
0
2
0