Comcare v Van Grinsven

· the respondent injured his left knee on 17 December 1985 and his right knee on 7 February 1986 while undertaking basic training activities

· in 1994 the respondent was diagnosed as suffering chondromalacia patellae in each knee

· on 16 March 1994 the respondent lodged two claims for compensation, one in relation to each knee

· on 14 June 1994 the appellant accepted liability for chondromalacia patellae in each knee

· on 22 July 1994 the respondent rejected the appellant's offer of a lump sum payment in relation to the injuries

· Dr Pentis, an orthopaedic surgeon who examined the respondent at his solicitors' request, reported regarding the right knee:

"Currently the incapacity, using Table 9.2 [OF Comcare's Guide to the Assessment of the Degree of Permanent Impairment (see below)], 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."

"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."

(Dr Pentis' reference to Table 9.2 and Table 9.5 are to Tables appearing in Comcare's Guide to the Assessment of the Degree of Permanent Impairment. See below pars 7 et seq.)

· Ms Bertoldi, an occupational therapist who examined the respondent at the request of his solicitors, reported:

"1 Loss of less than half normal range of movement of (R) knee (10% Whole Person Impairment under Table 9.2) (20% Whole Person Impairment under Table 9.5) 2 Loss 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 note the impairment as a percentage value of the functional capacity of a normal healthy person."

· On 17 August 2000 the appellant informed the respondent that it had determined he was suffering a 20% whole of person permanent impairment and offered him a lump sum under s 24 (permanent impairment) and s 27 (non‑economic loss)

· On 2 October 2000 the respondent sought a review of the determination pursuant to s 62(1) of the Act

· On 2 January 2001 the appellant notified the respondent that its delegate had decided to affirm the determination of 17 August 2000.

3 The reasons for the delegate's decision confirm that the determination had been based on Table 9.5 (rather than Table 9.2) in the approved Guide, and on the view that Table 9.5 requires that where a person sustains separate injuries to each lower limb giving rise to the same level of impairment in the Table, a single impairment rating should be attributed under the Table to the person's lower limbs. The respondent sought review of the decision by the Tribunal under s 64(1) of the Act. 4 But for the decision of Einfeld J in Comcare v Campbell [1999] FCA 1367 (considered below), the Tribunal would have affirmed the delegate's decision. The Tribunal felt bound by Campbell to attribute a separate impairment rating to each limb, and to combine the ratings under Table 14.1, with the result that it decided that the respondent's permanent impairment arising from his compensable injuries was 36%. The Tribunal set aside the decision of 2 January 2001 and substituted a decision that the respondent "suffered a whole person permanent impairment as a result of a bilateral knee condition and that the degree of impairment is 36%".

THE LEGISLATION 5 Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation in respect of the injury: s 24(1) of the Act. The word "impairment" is defined in s 4(1) as

"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 word "permanent" means "likely to continue indefinitely". The amount of compensation payable is the amount Comcare assesses according to s 24(4), provided that amount does not exceed the maximum amount at the date of the assessment: sub‑s (3). Section 24(4) provides that the amount is "an amount that is the same percentage of the maximum amount as the percentage determined under subsection (5)". Section 24(5) requires Comcare to determine the degree of permanent impairment resulting from an injury "under the provisions of the approved Guide". Sub‑section (6) requires the degree of permanent impairment to be expressed as a percentage. 6 Section 28 deals with the "approved Guide" referred to in s 24(5). Section 28(1) provides in part:

"Comcare may, from time to time, prepare a written document, to be called the 'Guide to the Assessment of the Degree of Permanent Impairment', setting out:

(a) criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury shall be determined;

(c) methods by which the degree of permanent impairment and the degree of non‑economic loss, as determined under those criteria, shall be expressed as a percentage."

A document prepared under sub‑s (1) has no force or effect until approved by the Minister: sub‑s (3). The provisions of the approved Guide are binding on Comcare and the Administrative Appeals Tribunal when assessing or reviewing the assessment of the degree of permanent impairment of an employee resulting from an injury.

THE GUIDE 7 Comcare prepared the Guide to the Assessment of the Degree of Permanent Impairment which was approved by the Minister. Part A of the Guide contains the Impairment Tables. The Tables are preceded by Principles of Assessment. Under the heading Impairment and Non‑Economic Loss the definition of "impairment" in the Act is substantially set out (minus some definite articles and conjunctions), followed by this statement:

"Impairment is measured against its effect on personal efficiency in the 'activities of daily living' in comparison with a normal healthy 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."

The information under the heading The Impairment Tables is in part as follows:

"Part A of the Guide is based on the concept of 'whole person impairment' ….

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.

… 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 a percentage value can be assigned to an employee's impairment by reference to the relevant description in this guide."

8 The Glossary contains definitions of various expressions used under the above headings. Only two need be set out. The word "impairment" is defined as

"the loss, the loss of the use, or the damage or malfunction, of any bodily system or function or part of such system or function."

This restores the definite articles and conjunctions omitted from the definition quoted under the heading Impairment and Non‑Economic Loss, but omits the words "of any part of the body or". The expression "Whole Person Impairment" is defined as

"the medical effects of an injury or a disease …. 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."

Under the heading Combined Impairments it is stated:

"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 one or more injuries give rise to the same impairment a single rating only should be given."

"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).

Where an employee suffers from more than one impairment, the values are not added but are combined using the Combined Values Table. The purpose of this table 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 (see Table 14)."

9 Tables 9.2 to 9.6 appear under the heading Musculo‑Skeletal System. The introduction to these Tables is found under Table 9.1, which is headed Upper Extremity. The content of the introduction indicates that it is of general application and is not limited to Table 9.1.

"… 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 9.5 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).

10 Table 9.2 is headed Lower Extremity (Percentage Whole Person Impairment) and reads in part:

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

Ankylosis or lesser changes in any toes except the first hallux

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

. loss of less than half normal range of hip or knee

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

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

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

"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)."

11 Table 9.5 is headed Limb Function ‑ Lower Limb (Percentage Whole Person Impairment) and is as follows:

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

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

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

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

(No equivalent of footnote 4 to Table 9.2 appears in the case of Table 9.5.) 12 Table 14.1 is headed Combined Values Chart. The operation of the chart is described as follows:

"The values are derived from the formula A + B (1-A) = combined value of A and B, where A and B are the decimal equivalents of the impairment ratings. In the chart all values are expressed as percents. To combine any two impairment values, locate the larger of the values on the side of the chart and read along that row until you come to the column indicated by the smaller value at the bottom of the chart. At the intersection of the row and the column is the combined value."

It should be noted in passing that the chart "works" even though two values are the same (ie there are no larger/smaller values).

TRIBUNAL'S REASONING 13 The essence of the Tribunal's reasoning is contained in the following passages:

"41. 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 ….

42. 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 he 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. … 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% ….

44. The Tribunal [whose decision was reviewed in Comcare v Campbell] 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.

45. … 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 [Comcare v Campbell] and bound to apply it in this case.

47. 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 ie 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. … 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 … 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%."

REASONING ON APPEAL 14 In our view, the question is one of construction of the Guide, read in context. Table 9.2 in conjunction with Table 14.1 is to be used to make an impairment assessment in relation to two or more lower joint injuries. Table 9.2 assigns whole person impairment values to various singular injuries such as "loss of less than half normal range of movement of hip or knee" and "Ankylosis of hip or knee". Note 4 to Table 9.2 states that "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)." Dr Pentis and Ms Bertoldi both assessed each of the respondent's knee injuries as having a 10% Whole Person Impairment under Table 9.2. By reference to Table 14.1 the respondent would thus have a total whole person impairment of 19% when using what may be called a combined singular injury assessment approach. Table 9.2 is one of the Tables dealing with impairments falling within the words "the loss of the use, or the damage or malfunction, of any part of the body" in the definition of "impairment", namely joint impairment. Table 9.5 adopts a different approach. It is directed primarily to the loss of bodily function part of the definition of "impairment". Thus the heading "Limb Function ‑ Lower Limb". Table 9.5 enables an assessment to be made of the level of impairment in the performance of various functions, such as whether the injured person can walk or stand and to what extent. The Table has no equivalent to Note 4 to Table 9.2 referring the assessor to Table 14.1. This suggests that Table 9.5 constitutes a self‑contained assessment approach alternative to the combined singular injury assessment method in Table 9.2. A note in the form of Note 4 would be inappropriate as a direction forming part of Table 9.5. The Table is concerned with the impairment of joints, and would not make sense as part of the function‑based Table 9.5. For the same reason resort cannot be had to Table 14.1 via the direction under Table 9.1. It too refers only to joint impairment. In the case at hand, it is obviously preferable for the respondent to rely on the approach in Table 9.5 as this gives him a higher total whole person impairment of 20%. Had the respondent's injuries also resulted in his two ankles each having lost half their normal range of movement (10% whole person impairment per ankle), the opposite would be true. It would be to the respondent's advantage to rely on Table 9.2 as this, in conjunction with Table 14.1, would give him a whole person impairment of 34%. 15 The respondent contends that because the heading of Table 9.5, Limb Function ‑ Lower Limb, is in the singular, each knee, being part of an individual limb, is to be assessed individually and the two whole person impairment percentages combined using Table 14.1. Firstly, we again observe that there is no Table 14.1 direction in Table 9.5 and that such a direction would be inappropriate there. Secondly, this submission ignores the specific type of "impairment" dealt with in Table 9.5. At the start of the Guide, the term "impairment" is defined more or less in the terms of the definition in the Act ‑ "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". Table 9.5 deals with but part of the definition ‑ loss of bodily function. The assessor is not asked to quantify impairment by reference to the injured person's capacity to move a singular limb ‑ "loss of use of part of the body". Rather the Table asks for an assessment of totality of motion or function, for example ‑ "Can rise to standing position and walk but has difficulty with grades and steps". 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". Thus Dr Pentis's assessment is that the respondent has a 20% "whole person impairment" and Ms Bertoldi's assessment is that he has an "overall level of lower limb impairment" of 20%. 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. 17 It follows from what we have said that Tables 9.2 and 9.5 constitute two different assessment regimes. Whether they do was the subject of lengthy discussion in Whittaker v Comcare (1998) 28 AAR 55. Ultimately, the Court resolved (at 67‑68) that because it was unclear whether Tables 9.2 and 9.5 overlapped or had a mutually exclusive operation, and if the former what was the relationship between them, the Court should adopt a construction that favours the worker in accordance with the principle applicable to socially remedial legislation. The Court concluded that where both Tables 9.2 and 9.5 are literally capable of application, the injured party should be given the benefit of the more favourable Table. Such an approach gives Comcare the flexibility to deal with the large variety of situations which can emerge when dealing with compensation for injury resulting in a fair outcome for an injured person. By way of example, Table 9.2 combined with Table 14.1 provide just monetary compensation for a person who has injuries which impair the movement in the knees and ankles yet is able to "rise to a standing position and walk but has difficulty with grades and steps". Conversely, Table 9.5 ensures a just outcome for a person who has only one or two single joint injuries yet is severely incapacitated in the ability to stand and/or walk. 18 The arguments put to us in this case were not propounded in Whittaker. Nothing we have decided is inconsistent with that case. We were not invited to consider whether Table 14.1 could apply where a person sustains two injuries and seeks to have one assessed under Table 9.2 and the other under Table 9.5. That was not the position in this case, and we express no opinion as to the application of Table 14.1 in that scenario. CAMPBELL 19 The facts in Campbell were similar to those in the present case. Campbell first injured his right knee while in the Army. The resulting disability caused him to put extra weight on his left knee and, as a consequence, he developed similar symptoms in that knee to those he had in the other. The Tribunal determined the disability in respect of each leg under Table 9.5 as 20%. By applying Table 14.1 it assessed total impairment as 36%. Einfeld J affirmed the Tribunal's decision. His Honour rendered Comcare's argument as follows:

"The Secretary said that table 9.5 required, not an assessment of impairment in respect of both of Mr Campbell's limbs, as the Tribunal made, 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."

20 His Honour's reasons for rejecting this construction were expressed as follows:

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."

21 Although the argument Comcare put to Einfeld J may in a broad sense have resembled that propounded by it in the present appeal, it does not, at least as rendered by his Honour, rely on the statement in the Guide that where two or more injuries give rise to the same impairment a single rating only should be given. Further, his Honour does not anywhere refer to the statement. The only hint that it may have been relied on by Comcare is his Honour's observation that the Guide is "not intended to be a rod for the purpose of imposing limitations and restrictions on injured persons …". Later in his reasons his Honour referred again to the function of the Guide, this time saying that "the question at issue is to be determined by looking at the statute not the guide" which is merely a mechanism … for the assessment of the degree of permanent impairment". Observations such as these fail to give effect to the words of s 24(5) requiring Comcare to determine the degree of impairment "under the provisions of the approved Guide". Campbell was wrongly decided. 22 It follows from what has been said above that Comcare's decision that the degree of whole person impairment suffered by the respondent is 20% is correct. The appeal must be allowed, the Tribunal's decision set aside and in lieu thereof it be ordered that Comcare's decision that the degree of whole person impairment suffered by the respondent is 20% be affirmed.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Solicitor for the Applicant: Australian Government Solicitor

Counsel for the Respondent: P A Keane QC and R W G Hume