Canute v Comcare

Federal Court of Australia|2005-04-01|Before: Dr P, Hill J

REASONS FOR JUDGMENT 1 The applicant, Mr Canute, appeals from the decision of the Administrative Appeals Tribunal constituted by senior member, S M Bullock and Dr P D Lynch, member, affirming the decision of Comcare denying to him a further lump sum compensation payment additional to the award he received as a result of a decision of Comcare made on 9 February 2000. 2 The application is in the original jurisdiction of the Court, although termed an appeal. It is an appeal "on", that is to say, limited to, a question of law. 3 Mr Canute worked as a civilian employee with the Department of Defence. He claimed that during the course of his employment he had suffered injury to his back on two occasions. He received an award of lump sum compensation in respect of one of his back injuries, as a result of the decision made on 9 February 2000. The other injury was not the subject of any award and has no relevance to the present appeal. 4 Mr Canute subsequently claimed "whole person impairment" beyond the award which he had received. He claimed that he suffered, not merely from the back injury, relating to the aggravation of the displacement of an intervertebral disc-lumbar, but also that arising out of the same incident, he suffered an adjustment disorder resulting in an increase in the degree of permanent impairment he suffered. 5 Section 24(7) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the Act") limits further compensation after a final assessment of permanent impairment to cases where there has been a subsequent increase in the degree of permanent impairment of 10 per cent or more. Mr Canute's application for further compensation was refused. He then sought review of the decision in the Administrative Appeals Tribunal. The Tribunal found that the increased impairment Mr Canute suffered was only 8 per cent and thus less than the 10 per cent required by s 24(7) of the Act. It accordingly affirmed the decision under review. It is from this decision that Mr Canute appeals. 6 By virtue of s 14 of the Act, Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury, inter alia, results in "impairment". Subsection 24(1) of the Act then provides that where an injury to an employee results in a permanent impairment, a liability to pay compensation to the employee arises. The amount of compensation is to be assessed in accordance with s 24(4) of the Act and is thus "an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5)". Section 24(5) requires Comcare to determine the degree of permanent impairment of the employee resulting from an injury using the provisions of what is termed "the approved Guide". The degree of permanent impairment is to be expressed as a percentage. 7 Section 28 is concerned with the approved guide. It requires Comcare to prepare a written document to be called "Guide to the Assessment of the Degree of Permanent Impairment" ("the Guide"). That written document is to set out criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury is to be determined and, inter alia, methods by which the degree of impairment as determined under those criteria are to be expressed as a percentage. Such a guide has been prepared and was used in the present case. 8 The expression "injury" is defined in s 4 of the Act as meaning: "a disease suffered by an employee; or (a) 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 (b) 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…" 9 The expression "disease" is defined, inter alia, as including an ailment or the aggravation of an ailment contributed to in a material degree by the employee's employment. Finally "impairment" is defined as meaning: "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."

The Tribunal's Reasons 10 The Tribunal dealt in some detail with various factual issues with which the hearing before it was concerned. These are not of significance to the appeal. 11 The Tribunal found that "the correct diagnosis of Mr Canute's psychiatric condition was that of a chronic adjustment disorder with anxious and depressed moods arising from his work related back condition." It did so on the basis of diagnostic criteria before it and the evidence of expert witnesses. It found that there was a level of 10 per cent whole person impairment, reflecting matters such as his social withdrawal, minor distortions of thinking, reduction in concentration and difficulties with daily living. The 10 per cent figure was calculated by reference to Table 5.1 of the Guide, the table relevant to Mr Canute's adjustment disorder. The percentage impairment resulting from the back injury had been assessed at 12 per cent. 12 The issue then was whether there had been an increase in the degree of permanent impairment of 10 per cent or more since the determination that had originally been made on 9 February 2000. The Tribunal said at para [75]: "In Mr Canute's case, it is agreed and we find that he suffered a back injury on 7 September 1998, relating to an aggravation of displacement of an intervertebral disc-lumbar (T5). It is also the Tribunal's finding that as a result of that physical injury, arising out of the same incident, Mr Canute has suffered an adjustment disorder. Thus, arising out of the same incident, but subsequent to it, one incident giving rise to the physical back injury subsequently gave rise to a psychological sequelae of adjustment disorder." 13 The Tribunal then considered the decision of Finn J in Comcare v Mihajlovic (2000) 97 FCR 304, the decision of Spender J in Comcare v Roser (2003) 127 FCR 155 and a decision of the Deputy President of the Tribunal in Re Laven v Comcare (2003) 76 ALD 253. I shall return to these decisions later. 14 The Tribunal continued: "79. On our consideration of both Comcare v Mihajlovic (supra) and Comcare v Roser (supra), and in agreement with Re Laven v Comcare (supra) in the former case, it is emphasised that the degree of permanent impairment of the employee as a whole is assessed for the purpose of determining the compensation payable in respect of injuries, rather than impairment attributable to specific injuries individually. Accordingly, the application of Table 14.1 of the Guide is intended to give the total effect of all impairments as a percentage value of the employee's whole bodily system or function. However, in Comcare v Roser (supra), Spender J concluded that where more than one injury is occasioned by an incident, then there are separate and discreet liabilities in respect of each injury. The compensation for each injury should be then assessed by reference to the degree of impairment of the whole body flowing from each injury, which may require consideration of the combined effect of the separate impairments flowing from the same injury. If there are separate incidents leading to discreet injuries, each injury generates a separate liability and there is no obligation to have regard to the combined impairment but rather, to the person having several impairments to the whole person flowing from each injury. 80. In Mr Canute's case, we conclude that Mr Canute has a permanent impairment of his back and subsequently permanent impairment arising out of the same physical injury but producing a psychological sequelae. Hence multiple impairments arising from the same incident, a physical impairment and a psychological impairment. In such circumstances, we find that in order to assess the whole person impairment of Mr Canute, we must have recourse to the Combined Values Table of 14.1 and as referred to in subsection 28(1)(1) of the Act, in which the Guide sets out criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury should be determined. Thus, a combination of 12 per cent for Canute's physical back condition combined with 10 per cent for adjustment disorder provides a whole person permanent impairment of 21 per cent. This 21 per cent does not represent a 10 per cent or more increase in permanent impairment and accordingly, we find that no further lump sum compensation is payable to Mr Canute."

The Guide 15 Part A of the Guide is based upon material prepared from the American Medical Association's Guides. As the Guide says under the heading "Principles of Assessment", "[e]valuation 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." 16 The Guide continues, "[a]s with the American Medical Association's Guides, Part A of this guide 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 the percentage value can be assigned to an employee's impairment by reference to the relevant description in this guide. Under the subheading "Combined Impairments" the following is said: "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." 17 The Guide contains various tables, some of which are relevant to the present case. Table 14.1 is referred to as the "Combined Values Chart". The table applies when there are two impairment values which have been determined to arise from the one injury. An example given in the table is the combination of an impairment of 35 per cent and an impairment of 20 per cent to produce a combined result of 48 per cent, rather than the percentage which would be produced by a simple mathematical addition of the two percentage values (ie 55 per cent). 18 Table 5.1 is headed, "Guide to the Assessment of the Degree of Permanent Impairment - Psychiatric Conditions." A note to the table indicates that the relevant psychiatric conditions include psychoses, neuroses, personality disorders and other diagnosable conditions. It is common ground that Mr Canute's chronic adjustment disorder fell within Table 5.1. That table proceeds from a nil percentage impairment where there is no loss of personal or social efficiency and where the employee is capable of performing activities of daily living without supervision or assistance, to an impairment of 90 per cent in cases where there are very severe disturbances in all aspects of thinking and behaviour, such as to require constant supervision and care in a confined environment and assistance with all aspects of daily living. 19 From time to time, notes to particular tables refer to the use of the "Combined Values Table" (Table 14.1). For example, Tables 9.1-9.6 are concerned with levels of impairment resulting within the musculo-skeletal system. A note under the heading "Spine" records that lesions of the spine are often accompanied by neurological consequences. The document indicates that should this be the case, the lesions and the neurological consequences should be assessed using Tables 9.4 and 9.5 respectively, with the results then being combined using the Combined Values Table (Table 14.1).

The cases discussed by the Tribunal 20 In Roser, the employee had injured both knees in 1986 and was awarded compensation for permanent impairment. In 1992 she injured her back in work related circumstances. The injury to her knees resulted in a 20 per cent whole person impairment. The back injury resulted in a 5 per cent whole person impairment. The question for decision was whether Table 14.1 was applicable in a case where there were two separate compensable injuries, both resulting in a degree of permanent impairment. As Spender J said, the case was one involving claims for compensation in respect of discrete injuries arising out of discrete events. It was the employee's submission that the amount of compensation to which she was entitled was to be assessed as a single global figure for both injuries by reference to Table 14.1, notwithstanding that the injuries had occurred at different times. This submission was rejected. As his Honour said, the Act proceeded on the basis that each work related injury brought about a separate liability in the Commonwealth to pay compensation. His Honour said at 166 [32]: "In my opinion, where there are discrete incidents, each resulting in injury or injuries, the Act does not contemplate a single whole person impairment, to be arrived at by considering the combined effect of the separate whole person impairments attributable to each set of injuries." 21 At 167-8 [34]-[43] his Honour continued: "In the view I take of the matter where an injury or more than one injury is caused as a result of a single event or incident, s 24 provides the means by which the whole person impairment flowing as a result of each injury is to be determined. However a number of discrete injuries, suffered sequentially, may result in the same impairment. Comcare v Van Grinsven (2002) 117 FCR 169 was such a case. The point in issue in the present case was not taken in that case. Mr van (sic) Grinsven injured his left knee on 17 December 1985 whilst undertaking basic training activities in the Royal Australian Army, and he injured his right knee in similar activities on 7 February 1986. He made separate claims for compensation, one in relation to each knee. The Tribunal held that although each injury led to the same impairment assessed under Table 9.5 at 20 per cent, this rating should be assessed for each knee and combined as two degrees of impairment under Table 14 so as to give an assessment of 36 per cent. The Full Court of the Federal Court (Beaumont, Finn and Sundberg JJ) held that Table 9.5 constituted a self-contained assessment approach alternative to the combined singular injury assessment method in Table 9.2, and for the purpose of that Table, the respondent did not suffer from more than one impairment. The Court said at 176 [16]: 'It is clear that for the purpose of Table 9.5 the respondent does not suffer from more than one impairment. He may suffer from two knee injuries, but for the purpose of Table 9.5 these only give rise to the one impairment - that is, 'Can rise to standing position and walk but has difficulty with grades, steps and distances'…By way of contrast, for the purpose of Table 9.2 he can be said to have multiple impairments. In Table 9.2 each single joint injury is an impairment. That is why it is necessary to use Table 14.1 to combine these impairments in order to obtain the whole person impairment percentage.' …In the view I take of the matter, if there are two incidents, each involving injury or injuries, there are discrete liabilities for each injury, the extent of which has to be determined discretely. A single injury may result in multiple impairments (which then have to be "combined" under Table 14.1), and multiple injuries may result in a single impairment. An example of that are the injuries sustained to Mr Roser's knees in 1986… In my judgment, s 24(1) of the Act provides for compensation for 'an injury'. If that injury results in multiple impairments, the impairment to the whole person is to be arrived at. If there is more than one injury occasioned as a result of a single event or incident, then there are separate and discrete liabilities in respect of each injury. Thus, if a person were made blind and lost the use of the lower right arm, as the result, say, of a grenade exploding, there are two separate injuries and the person suffering them is entitled under the Act to compensation for each of them. The compensation for each injury is to be assessed by reference to the whole body that flows from each injury, and that degree of impairment may require consideration of the combined effect of separate impairments flowing from the same injury. (emphasis added) In my opinion, the same result follows a fortiori where there are separate incidents leading to discrete injuries, as is the case here." 22 So much of the above comments as related to a case where there was more than one injury occasioned as a result of a single event or incident is clearly dicta, having regard to the emphasis placed by his Honour upon the fact that the injuries in Roser arose out of separate incidents. However, it should be said that there is no reference in the legislation to "incidents" or, for that matter, any cognate expression referring to the set of circumstances or factual matrix that an "injury" can be said to arise from. The extract from para [75] of the Tribunal's reasons here shows that the Tribunal thought it to be relevant that only one "incident" happened. 23 Mihajlovic was decided before Roser. In Mihajlovic the employee had received compensation for permanent impairments to her back, right leg and right shoulder, which were assessed at a 28 per cent whole person impairment under the Guide. In 1996 she applied for additional compensation and succeeded in this application before the Tribunal. Her case was that one of the discrete impairments with which she suffered had increased by 10 per cent. However because of other changes in the reassessed impairment, the overall percentage degree of impairment as calculated in accordance with the Guide, had only increased by 1 per cent, with the consequence that Comcare argued that she had not demonstrated an increase in impairment of 10 per cent or more. The Tribunal, in acceding to the employee's application, took the view that an employee was entitled to additional compensation where the employee could show that there had been a 10 per cent increase in the degree of impairment, in respect of a single impairment, in circumstances where a single injury resulted in multiple impairments. Finn J said at 310 [21] allowing the appeal: "Turning to the construction of s 25(4) itself, the scheme of Part II Div 4 of the SRC Act points unmistakably to the construction propounded by Comcare. Unless and until Comcare determines (s 24(7)) or is satisfied (s 25(1)(b)) that an employee's degree of permanent impairment is 10 per cent, compensation is not payable to the employee either under s 24 or s 25. This 10 per cent is necessarily, that referred to in s 24(5) - that is, the degree of impairment determined under the provisions of the Guide. Where an employee has multiple impairments that percentage is to be arrived at using the Combined Values Table of Table 14.1. As the "principles of assessment" contained in the Guide indicate - albeit again in an oddly located place (that is, under the heading "Double Assessment") the purpose of Table 14.1 "is 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". In so doing in respect of a multiply impaired employee, the Table performs the function envisaged for the Guide in s 28(1)(c) of the SRC Act: it provides the method by which the degree of permanent impairment of such an employee is to be expressed as a percentage, being the percentage that is employed in s 24 in assessing the compensation payable to the employee. In cases of multiple impairments, though each impairment necessarily involves "the loss, the loss of the use, etc….of any part of the body etc" (see s 4 'impairment'), the calculation of the percentage degree of permanent impairment of that particular impairment is not an end in itself. It is simply a step to be taken (along with like steps in relation to the employee's other impairments) under the Tables, to enable (via Table 14.1) a percentage of degree of permanent impairment to be derived for s 24 purposes. It is not of itself a percentage for s 24(6) purposes. It functions as an element in the method prescribed by the Guide (s 28(1)(c)) to express the degree of an employee's permanent impairment as a percentage. It would, in my view, be quite anomalous in the scheme of the SRC Act if such a figure having such purpose were nonetheless to operate as a trigger to further compensation (if 10 per cent or more) for s 25(4) purposes. The Act neither requires nor the language of the subsection warrants, such a conclusion." 24 Little need be said of the final case; re Lavin v Comcare (2003) 76 ALD 253, upon which the Tribunal relied in the present case. Neither party before me sought to justify the reasoning in that case. It must be said at the least that some doubt attends the decision. 25 The employee in Lavin had received a lump sum compensation for an injury to her right arm. The employee later suffered an injury to her left shoulder as a secondary condition to the carpal tunnel syndrome in the right arm. The secondary condition arose because the employee had used her left arm to compensate for the restrictions to her right arm. The employee lodged a claim for permanent injury in respect of the carpal tunnel syndrome in her right arm and the injury to her left shoulder. Deputy President Handley was of the view that Table 14.1 should be applied to combine the permanent impairment of 30 per cent in respect of the employee's left arm and shoulder and the percentage impairment of 10 per cent in respect of her right arm and shoulder with the consequence that the increase in the degree of permanent impairment was only 7 per cent. Thus no additional compensation was payable. 26 It is obvious that the Tribunal in the present case was influenced by Lavin . It saw Lavin as a case where the claim for further compensation in relation to the left arm involved what it regarded as "a sequelae of the same injury" that is to say, the injury originally caused to the employee's right arm and shoulder. It adopted the same characterisation here describing Mr Canute's chronic adjustment disorder as a "psychological sequelae". 27 The application filed in the Court sought to characterise the error of law in the Tribunal's reasons as being the application of Table 14.1. However, in argument it was submitted that the error of law should properly be expressed to be an error of construction of the Act or a failure of the Tribunal to consider the relevant issue, namely, whether Mr Canute had suffered, in addition to his back injury, another injury, being an adjustment disorder and, if so whether the percentage impairment should be calculated without the application of Table 14.1. 28 Counsel for Comcare submitted that the Tribunal had not failed to consider whether Mr Canute had suffered chronic adjustment disorder as a separate injury for the purposes of the legislation in addition to the back injury. Rather, it was submitted that the Tribunal had considered the question and either rejected the characterisation of the psychological condition as a separate injury or proceeded directly to making a finding of permanent impairment by applying Table 14.1.

Conclusions 29 As Burchett J pointed out in Brennan v Comcare (1994) 50 FCR 555 at 556, the Act provides for compensation to be paid "in respect of the injury". In Roser, Spender J quotes Burchett J to have said in Brennan, that "for a liability to arise there must, in my view, be an injury and it must result in a permanent impairment. A clear cause and effect relationship between the injury and permanent impairment is posited and required." While these precise words do not in fact appear in Vol 50 of the Federal Court Reports, what Burchett J is quoted as saying is, with respect, both correct and appropriate. 30 The scheme of the Act is quite clear. Comcare, in reviewing the whole person impairment of an employee (or the Tribunal acting in its place on a review) must first determine whether there has been an injury suffered by that applicant. The inquiry where there has been an injury is not restricted to physical injury. If the Tribunal finds there to have been an injury, the next step is to determine what impairment or impairments, should there be more than one, result from the injury. These must then be calculated, and the percentage value whole person impairment determined by applying the relevant table in the Guide. 31 Where there is more than one injury, each injury is to be considered separately. The percentage impairment or impairments for each injury will be added together to calculate the percentage of whole person impairment. Multiple impairments arising from a single injury, by contrast do not require the addition of percentages but rather, the percentage whole person impairment will be determined by applying Table 14.1. 32 In the simple case, an employee may suffer a single compensable injury. Where that injury results in a single impairment there is no difficulty. However, it may not be so unusual for an employee to suffer a single injury with multiple impairments. An example would be the case where an employee injures his or her back and that injury affects both the ability of the employee to use the back as well as affecting his or her motor functions. Such a case is in fact suggested by the note to the Guide in Table 9.6. In such a case, the Guide requires the application of Table 14.1 to determine the whole person impairment. It does not provide for compensation to be payable resulting from the cause of an incident. It does not segregate injuries into those that are "sequelae" and those which are not. Compensation is payable in respect of injuries. 33 Yet again, an employee may suffer from more than one injury and each injury may give rise to one or more impairments. An example is that suggested by Spender J in Roser. In that case, his honour refers to an exploding grenade which could result in multiple impairments; blindness and loss of use of the lower right arm, entitling the employee to compensation for each of the injuries in question. In such a case, the compensation for each injury will be assessed by reference to the degree of impairment to the whole body flowing from each separate injury. Table 14.1 has, in such a case, no operation. 34 There may also be cases where there is more than one injury but the multiple injuries result in a single impairment. An example, again given by Spender J, involved the injury which Ms Roser suffered in 1986 to both knees, referred to by Spender J as a "bilateral knee condition" which resulted in a 20 per cent whole person impairment. 35 In my view, it would be an error of law for the Tribunal to proceed in a case such as the present with its assessment of whole person impairment without first determining whether the employee suffered from one injury or more than one injury. I did not understand counsel for Comcare to disagree with this proposition. The question is whether in the present case the Tribunal so proceeded and thus erred in law. 36 It should be said that the courts should not approach the reasons of an administrative tribunal to tease out an error of law (or as the High Court of Australia said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 at 272, to construe them "minutely and finely with an eye keenly attuned to the perception of error"). The reasons of the Tribunal should not be construed narrowly. 37 There is no doubt that the Tribunal here made a finding concerning Mr Canute's psychiatric condition. It assessed the whole person impairment for this condition under Table 5.1 in a way which would suggest that it treated the mental condition as being an injury resulting in the degree of impairment which that table showed. However, although counsel for Comcare submitted to the contrary, it is, I think, clear that the Tribunal did not consider the question whether the chronic adjustment disorder was itself an injury and to be considered as such under the Act. It did not do this because it regarded it to be a relevant consideration that the adjustment disorder from which Mr Canute suffered was a "psychological sequelae" that came about as a result of the physical injury arising from the incident which caused Mr Canute to suffer his back injury. 38 An example will illustrate why the Tribunal's approach involves error. It is not suggested that the example which follows has any relationship to the facts of the present case. It is intended to be illustrative only. Let it be assumed, that an employee suffers from a depressive disorder which does not affect the person's work performance. The employee injures his or her back. The pain operates to aggravate the existing depressive disorder. There would clearly be two injuries suffered. In principal, the situation would be no different even if there was not a pre-existing mental condition but the depression was brought on as a result of the circumstances leading to the injury of the employee's back. In both of these cases, the mental condition will fall within the definition of "injury". Either it will be an ailment suffered by the employee, and thus a disease, or there will be an aggravation of such an ailment, which itself will fall within paragraph (b) of the definition of "disease", and thus within paragraph (a) of the definition of "injury". The fact that the two injuries were caused by a single event (for example, lifting a heavy weight) is not a relevant question under the Act. The Act is concerned with injuries, not incidents. 39 It might be possible to argue, although this was not the argument advanced by Comcare, that a back condition and mental illness together might constitute one injury. The argument would equate the facts of the present case to the facts of Roser where injury to both knees was treated as a single injury. However, it should be noted that in that case the so called bilateral knee condition, which might otherwise be thought to have involved two injuries, resulted in only one impairment. No doubt in such a case it is appropriate as a matter of fact to treat, what otherwise might be thought to be two injuries, as one. However, it does not seem to me to be appropriate to treat two separate injuries, each having different levels of impairment, as one injury for the purposes of the Act. Ultimately, the policy of the Act is to compensate employees for injuries arising out of their employment. The measure of compensation is determined by reference to percentage impairment. However, the right to compensation is created by the occurrence of an injury. 40 It follows in my view, that the Tribunal erred in law in proceeding to approach the question of compensation without determining whether the mental condition from which Mr Canute suffered was an injury, and if so, whether that injury operated to create an impairment for which compensation was payable. I would accordingly set aside the Tribunal's decision and remit the matter to the Tribunal to be decided again, with or without the presentation of additional evidence in the discretion of the Tribunal. I direct that Comcare pay Mr Canute's costs of the present application. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate: Dated: 1 April 2005 Counsel for the Applicant: Mr L T Grey

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