Comcare Australia v Silver

The Statutory Setting 3 Under the 1988 Act, Comcare is required to pay compensation for an injury for which it is liable: cf s 14(1) of the Act; if that injury results in a permanent impairment: s 24(1). The terms "impairment" and "permanent" are defined in s 4 of the Act to mean, respectively: (i) "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;" and (ii) "likely to continue indefinitely."

Factual Setting and the Tribunal's Decision 4 Mr Silver's left eye injury resulted from the explosion of a practice "flash" grenade while he was engaged in field training for the Australian Regular Army on 9 December 1971. Apart from a short period after sustaining the injury, he suffered no noticeable loss of vision at the time. Ten years later he suffered a separate injury to his right eye which was not work related and which, on his evidence, did not affect his left eye. 5 In 2000 when having his glasses replaced, he was recommended to see Dr Lane, an eye specialist. That led to his making his compensation claim on Comcare. 6 The medical evidence and the divergences within it fell within a small compass. For present purposes the matter of contention related to the initial location of scarring to Mr Silver's retina occasioned by the explosion and to the ongoing significance of that scarring in causing his progressive decline in visual acuity. The differences in medical opinion are captured in the following two extracts from the Tribunal's reasons: "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 [which is regarded as legal blindness]. … 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 that is not correctible." Emphasis added. 7 In giving his oral evidence, Dr Lane was questioned both in chief and in cross-examination about the part of the retina described as the "macula". Apart from the description he gave of its function (described in the above quotation), his evidence included the following: (i) "MR McRAE: So then my next question is - and I ask you to express an opinion as to whether whatever has happened can be described as a qualitative change in the eye? MISS PURCELL: As you understand that term in your medical sense? --- Yes, in as much as the quality of his vision, which is the function of the eyes is to give vision, the quality of vision is distinctly worse than it was. It has gone from 5 per cent to legally blind. MR McRAE: Has there also been a qualitative change in relation to the functioning of the macula? --- I guess by definition if the vision has changed, the macula must have because that is where the vision is derived in the retina. Do I understand that the macula is tissue of the eye, part of the tissue of the eye? --- It is part of the retina which is the layer of nerve cells at the back of the eye that turn the light coming in to the eye into electric signals that go to the brain. So it's the vital part of the eye." (ii) "MR SOULIO: Now, doctor, in relation to the injury, is it the injury to the macula which is resulting in a reading of 6/9, 6/12, 6/18, etcetera? --- The macula - if the macula is injured his vision couldn't be 6/9 or 12. The vision would be worse than that. Okay, so 6/18, would indicate the macula was involved - - - ? --- Is starting to be involved, I would have thought. Thank you. The macula is - I say simply - but there is probably nothing simple about the eye - but the macula is simply part of the retina, is that correct? --- Yes, it's a particular region or part of the retina that is on the visual axis, so it is to do with the central vision. Yes, so it is the name given to a particular area of the retina? --- That's correct." 8 In its decision the Tribunal acknowledged that the state of the applicable law in a case such as the present was as adopted by Mansfield J in Comcare v Maida (2002) 36 AAR 69 at [28]: "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." 9 This approach, I would note in passing, was followed by Weinberg J in Comcare Australia v Mathieson [2004] FCA 212. Comcare accepts that, on the current state of the authorities, I also should apply Maida. 10 The Tribunal reached the conclusion that, in light of Dr Lane's evidence (which it preferred), Mr Silver had sustained a new permanent impairment after 1 December 1988. It expressed itself in the following terms: "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." Emphasis added.

The Present Application 11 Comcare's short submission is that the Tribunal has misunderstood Mansfield J's propositions in Maida and the significance of the evidence before it. Whether or not the original scarring involved the macula there was scarring of the retina. The scar tissue on Dr Lane's evidence evolved so as to encroach on the macula and this was a natural progression of the condition. That scarring did not undergo any pathological change. 12 Mr Hanks QC for Comcare accepted that the Tribunal's reasons less than perfectly reveal its reasoning process. But, he submitted, even construed generously they do not justify the conclusion it reached. Nonetheless, Mr Hanks conceded that if the Tribunal is properly to be taken as having decided that the encroachment of the scarring on the macula resulted in a new impairment in that it involved a new loss or malfunction of a part of the body, or a bodily system or function (see the definition of "impairment"), then this part of the application must be dismissed. 13 That concession accords with my own appreciation of the Tribunal's decision. The paragraph quoted above containing the Tribunal's conclusion is by no means free from difficulty. If, for example, in the final sentence the Tribunal was saying no more than a significant change in degree of permanent impairment of itself constitutes a new impairment, it would have contradicted the third of the Maida propositions on which it was purporting to rely. However, given what precedes that sentence in that paragraph, I am satisfied that the Tribunal was guilty of no more than inexact précis of its actual reasons for its conclusion. 14 Those reasons, in my view, are premised upon the macula being a distinct part of the retina having its own distinct function; that part and function, on Dr Lane's evidence, was not originally affected by the 1971 injury. The progression of the scar, which was not inevitable (though it was nonetheless natural on Dr Lane's evidence) resulted in such an affection of that part and in a corresponding loss in its function as to constitute a subsequent permanent impairment which, on the evidence, it was open to the Tribunal to find occurred after 1 December 1988. 15 Whether or not one wishes to describe what occurred as a qualitative change in "the patho-physiological condition" - and as Weinberg J observed in Mathieson, that term is nowhere to be found in the 1988 Act - it resulted in a discrete permanent impairment for the purposes of s 24 of the 1988 Act having regard to the definitions of "permanent" and "impairment" in s 4 of the Act. 16 While the Tribunal, admittedly, has not spoken on this matter with unmistakeable clarity, when one has regard to how this issue was treated in oral evidence and in the Tribunal's reasons, I am satisfied that a fair reading of the reasons discloses no error on the Tribunal's part.

ASSESSING WHOLE PERSON IMPAIRMENT 17 This matter is a separate subject of this application. As I earlier noted, Mr Silver suffered a compensable injury to his left eye in 1971 and a non-compensable injury to his right eye in 1981. When the Tribunal determined the degree of permanent impairment suffered by Mr Silver it had regard to the impairment to both eyes. In so doing it acted on what it understood to be the intention of the statutorily recognised "Comcare Guide". Comcare in this application challenges the corrections of that understanding.

The Statutory Setting 18 Section 24(5) of the 1988 Act obliged Comcare to determine Mr Silver's degree of permanent impairment resulting from an injury "under the provisions of the approved Guide". That Guide is prepared pursuant to s 28 of the Act and it is to set out (amongst other things): "(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." 19 The Guide which has been prepared and approved under s 28 - "Guide to the Assessment of the Degree of Permanent Impairment" - has its own principles for assessing impairment. These are based "on the concept of 'whole person impairment'" which the Guide defines to mean: "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." 20 The Table of the Guide concerned with impairment of the "Visual System" (Table 6.1) is directed, as it self-describes, to "Disorders of Visual Activity (Percentage of whole person impairment)". Its method of measurement is embodied in the following grid-like matrix: 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 L 6/9 5 10 10 15 15 20 20 25 25 30 30 E 6/12 5 10 20 20 25 25 30 30 35 35 40 F 6/18 10 15 20 30 30 35 35 40 40 40 45 T 6/24 10 15 25 30 40 40 40 45 45 50 50 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 6/48 20 25 30 40 45 50 60 65 70 70 75 E 6/60 20 25 35 40 45 55 60 70 75 80 80 Y 3/60 20 30 35 40 50 55 65 70 80 85 85 E NPL 25 30 40 45 50 60 65 75 80 85 85 NOTE: NPL means no perceived light.

The degree of impairment in a given instance is ascertained by reference to the percentage number to be found at the point of intersection of a person's left eye and right eye readings (eg 6/12 left and 6/18 right equals 20 per cent). 21 The point of present controversy relates to whether, in determining the degree of permanent impairment resulting from the injury to Mr Silver's left eye, account is to be taken of the existing actual impairment to his right eye for which Comcare is not liable as such. 22 As is so commonly the case with this Guide, Table 6.1 (no less so than other Tables: see eg Whittaker v Comcare (1998) 86 FCR 532) is unyielding of clear guidance. The view the Tribunal took of the Table was that: "… 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." 23 The apparent curiosity in this view, which Comcare seeks to exploit in this application, is that by allowing account to be taken of the right eye, it is being held liable to compensate to that extent for the 1981 injury for which it was not responsible. 24 If the Table required a person's eyes to be dealt with separately, rather than as together constituting a visual system, Comcare's contention would in my view be unassailable: see Comcare v Amorebieta (1996) 66 FCR 83 at 94 - 95. It would, though, produce the rather anomalous result that a person who was blind in one eye and then sustained a compensable injury rendering the other eye blind, would be assessed on the counterfactual assumption that he could still see and not on the true assumption that a consequence of the injury was total blindness. 25 Given that (i) the Table appears on its face to be concerned with a person's "visual system" and not merely with individual eyes; and (ii) it embodies a "whole person impairment" concept which in turn is related to an injury's effect "on a person's functional capacity and activities of daily living" - I am satisfied that the view taken by the Tribunal was correct. The impairment resulting from the 1971 injury to the left eye is required to be measured by reference to that person's visual acuity in the situation in which he or she now finds himself or herself. Because that is the degree of permanent impairment to that person's vision that results from the injury, no violence is done to the language of s 24(5) of the 1998 Act. 26 In any event, as has been repeatedly emphasised, the Act is socially remedial legislation intended to benefit workers and it and the Guide should be given a construction which advances the Act's purposes: Thiele v Commonwealth (1990) 22 FCR 342 at 346; Comcare v Ticsay (1992) 38 FCR 181 at 188; when the Guide is susceptible to several interpretations.

CONCLUSION 27 The application will be dismissed with costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Solicitor for the Applicant: Phillips Fox Lawyers

Solicitor for the Respondent: Moloney and Partners