Workers' compensation - Disability - Degree of disability - Aggravation of symptoms of pre­existing degenerative disease - Whether Review Officer must assess the extent to which degenerative disease caused the disability

Workers' Compensation and Injury Management Act 1981 (WA), s 93B, s 93D

Girrawheen Tavern v Joseph [2003] WASCA 244

Anderson v Princess Margaret Hospital, unreported; CM­132/00; 19 January 2001

Dzonlagic v The Mattress Renovators Perth Pty Ltd, unreported; CM­129/00; 24 November 2000

Jacob v BHP Iron Ore, unreported; CM­147/00; 9 February 2001

National Mine Management Pty Ltd v Bowden, unreported; CM­105/00; 27 March 2001

Oceaneering Australia v Dyke, unreported; CM­1/01; 26 June 2001

Tarr v BHP Iron Ore, unreported; CM­182/00;28 May 2001

1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Pullin JA. I agree with those reasons and have nothing to add.

2 MCLURE JA: I have had the advantage of reading in draft form the reasons to be published by Pullin JA. The reasoning of this Court in Girrawheen Tavern v Joseph [2003] WASCA 244 requires that this appeal be allowed. At the commencement of the appeal, the respondent informed the Court it would abide the outcome. There being no challenge to the correctness of the reasoning of the Court in Girrawheen, the appropriate course is to apply it. I agree with the orders proposed by Pullin JA.

3 PULLIN JA: This is an appeal against the decision of the Compensation Magistrate dated 25 July 2001.

4 On 19 January 1996 the appellant claims that while working for the respondent, he was injured when he jumped from a drilling rig which had caught on fire. He claims he suffered injury and that the injury caused incapacity in his spine and pelvis. There is medical evidence that long before the 19 January 1996 accident, he was suffering from degenerative disorders which had caused incapacity in his lumbar spine.

5 The appellant wishes to sue the respondent for common law damages in relation to the 19 January 1996 injury. Under the Workers' Compensation and Injury Management Act 1981 (WA) ("Act"), damages can only be awarded if it is agreed by the parties or determined pursuant to the Act that the degree of disability is not less than 30 per cent; or alternatively, if it is agreed or determined that the degree of disability is not less than 16 per cent, the injured worker elects to retain his right to seek damages and the election is registered in accordance with the Act.

6 There was a dispute between the parties about the degree of disability and the dispute was referred to a Review Officer for determination. The Review Officer determined the degree of disability as follows:

"( 15 x 60) + ( 10 x 15) = 9% + 1.5% = 10.5%"

(100 ) (100 )

7 The form of the calculation was in accordance with s 93D(2)(ii) and (4). The first part of the calculation referred to the disability in his back and the second part of the calculation referred to the disability in his

pelvis. The Review Officer therefore determined that the degree of disability was less than 16 per cent.

8 This determination was then taken on appeal by the appellant to the Compensation Magistrate. The appellant appealed on the basis that the first part of the calculation was in error. The error was that on a correct view of the Act, the figure 60 in the first part of the calculation should have been 100. If that change is made the calculation produces a result of 16.5 per cent. It is not necessary for the purposes of this appeal to explain why that change should have been made. The respondent conceded that that ground of appeal should succeed and his Worship upheld the ground.

9 However, the respondent lodged a notice of contention asking to have the Review Officer's determination affirmed on the following ground:

"1. The review officer should have held that the appellant's permanent loss of efficient use of the back resulting from the appellant's disability on 19 January 1996 was one-fifth of 15% loss of efficient use of the back, taking into account the effect of the appellant's pre-existing degenerative changes in the lumbar spine.

2. The review officer should have held that the appellant's permanent loss of efficient use of the pelvis resulting from the appellant's disability on 19 January 1996 was one-half of 10% loss of efficient use of the pelvis, taking into account the effect of the appellant's pre-existing degenerative changes in the pelvis.

3. In the premises, the review officer should also have held that for the purposes of s 93E(4) only, the appellant's permanent loss of efficient use of the body as a whole resulting from the appellant's disability on 19 January 1996 was 3% plus 0.75% equals 3.75%'."

10 This notice of contention was upheld. The Compensation Magistrate at [27] of his reasons explained why he agreed with the notice of contention. He said:

"The review officer should not have included in the assessment of the degree of disability of the 1996 disability (within the meaning of s 5 of the Act) any consequences or symptoms which are not causally related to the 1996 disability (within the meaning of s 5 of the Act)."

11 The result was that the Compensation Magistrate dismissed the appeal and affirmed the determination of the Review Officer that the degree of disability was less than 16 per cent.

12 The appellant appeals against this decision to this Court. The grounds of appeal read:

"(1) The learned Magistrate erred in law in deciding that the Appellant's degree of disability as assessed pursuant to section 93D of the Act was not a significant disability within the meaning of that term as used in section 93E of the Act.

Particulars

(a) Having found that the injury suffered by the Appellant on 19 January 1996 resulted in a 'disability' within the meaning of that term as used in the section 5 of the Act, the Learned magistrate erred in assessing the degree of disability by reference to the consequences of the injury of that date as opposed to the consequences of the disability to which the injury contributed to a significant degree.

(b) Pursuant to section 5(d) of the Act the term 'disability' comprises accumulated injuries and work related injuries so long as the workplace injuries contribute to the disability to a significant degree. Having made the finding that the workplace accident of 19 January 1996 did so contribute, the Learned Magistrate erred in finding as a question of law that the degree of disability could not include the consequences of accumulation of both work and non work related factors.

(c) The Learned Magistrate failed to assess the degree of disability in accordance with the requirements of section 93D(2) of the Act.

(d) The Learned magistrate erred in determining the degree of disability by attempting to determine the level of incapacity that flowed from the accident on 19 January 1996 as opposed to assessing the degree of disability in accordance with the Act."

13 The appellant submits that the reasoning in Girrawheen Tavern v Joseph [2003] WASCA 244 should apply in this case and that in consequence the appeal should be allowed. In the Girrawheen case, there were a series of workplace injuries suffered by an employee while working with the same employer. Each injury caused cumulative damage. The employer's main submission in that case was that the worker could not combine separate and distinct injuries occurring on three occasions into a single "degree of disability" [27]. The employer submitted that the workers' compensation legislation correctly interpreted, treats each compensable incident as creating a separate entitlement to workers' compensation, not as creating merely part of an aggregated entitlement [41].

14 Wheeler J (McKechnie J agreeing) accepted the latter submission as correct, but observed that Div 2 of the Act is not truly to be considered as "workers' compensation legislation" at all. Rather, her Honour said, it is legislation directed to the restriction of common law rights in circumstances where workers' compensation may also be payable [41]. I agree. Wheeler J also held that the word "disability" when used in s 93D and s 93E is used in its non-technical sense (ie not as defined in the Act, but in its ordinary meaning). I agree. In relation to the employer's main submission, her Honour noted that it could be productive of expense and inconvenience if the Review Officer were to be required to untangle potentially complex legal and factual questions of causation and that it was unlikely that Parliament required such a task of the Review Officer [52]. Her Honour concluded that it is the nature of the disability which is material and not the cause or causes of action which have led to it [53] and that for the purpose of s 93D it is the degree of loss of function in the ordinary sense which is to be assessed, notwithstanding that it may have occurred over a number of years as a result of events on a number of occasions [54]. I agree also with that conclusion.

15 I note that in Girrawheen's case, Parker J agreed with Wheeler J, but made it clear that he was expressly confining his opinion to the situation where the "aggregation of disabilities" resulted from more than one injury in the course of employment with one employer".

16 I consider that what was said by Wheeler J in Girrawheen should apply in a case like this, where the disability is partly caused by a compensable workplace injury and partly by a degenerative disease. In my opinion Parliament intended that a person who was capable of carrying out work, albeit with a disability from a degenerative disease, who then suffered injury which exacerbated the disability so that it was then a significant disability, should be free to sue and recover common law damages. "Disability" when used in its technical or defined sense elsewhere in the Act, provides for payment of workers' compensation in circumstances where there is a recurrence, aggravation or acceleration of a pre-existing disease where employment was a contributing factor to that recurrence, aggravation or acceleration and contributed to a significant degree. See s 5(1) "disability", par (d). In my opinion when the word "disability" is used in its non-technical or non-defined sense, it has a similar meaning.

17 When a Form 22 is filed, the worker must insert a description of the disability, must state the date the disability occurred, and must specify the date weekly payments of compensation commenced. Weekly payments would not have commenced unless there was a sufficient causal link between the workplace injury (which aggravated degenerative disease symptoms) and the resultant disability. That is why the Review Officer does not have to be concerned about issues of causation when he or she has to assess the level of disability.

18 Section 93B of the Act is the section which applies Div 2 to the awarding of damages against a worker's employer. The section reads:

"(1) This Division applies to the awarding of damages against a worker's employer independently of this Act in respect of a disability suffered by a worker if -

(a) the disability was caused by the negligence or other tort of the worker's employer; and

(b) compensation has been paid or is payable in respect of the disability under this Act, or would have been paid or be payable but for section 22."

19 It is clear that the issue about what "caused" the disability will have to be determined by the court which is asked to make the award of damages. Section 93B(1)(a) does not require the Review Officer to be satisfied that the disability was caused by "the negligence or other tort" of the employer because the Review Officer is not concerned with the "awarding of damages". The Review Officer only has to assess the degree of disability under s 93D. As Wheeler J said in Girrawheen's case at [52] the assessment made by the Review Officer under s 93D of the Act is made as a threshold or gateway assessment. The threshold is passed by reaching an agreement or obtaining a determination about the degree of disability.

20 I consider that the reasoning in Girrawheen's case should apply in the present circumstances. Thus, if as here, a compensable workplace injury occurred in the course of employment with the respondent, and after that injury there was a disability suffered by the worker (which may be the worsening of an existing disability suffered as a result of degenerative disease) the task of the Review Officer is to determine the extent of the disability. It is not the task of the Review Officer in making such a determination to determine what part of the disability is caused by the degenerative disease and what part is caused by the compensable workplace injury. In saying that, I recognise that there may be other proceedings before a Review Officer where issues of causation may have to be determined. For example under s 58 the Directorate may have to determine a question about liability to make weekly payments. That may involve the resolution of an issue for example, about whether the worker suffered a disease to which employment was a contributing factor (see the definition of "disability" par (c)). That, however, is not in issue where a Review Officer is determining a dispute about degree of disability. I therefore disagree with the Compensation Magistrate's conclusion that the Review Officer should not have included in the assessment of the degree of disability following the 1996 injury "any consequences or symptoms which are not causally related to the 1996 [injury]." (AB 27)

21 I should mention in closing that there was no argument advanced by the respondent during the hearing of the appeal. The respondent appeared through counsel only to announce that the respondent would abide the decision. The respondent had previously filed written submissions contending that the case of Girrawheen Tavern v Joseph (supra) was distinguishable because it related to circumstances where there was a series of workplace injuries suffered under one employer, each injury causing cumulative disability. The written submissions argued that the reasoning in that case should not be applied to the circumstances where the disability was caused by a combination of a workplace injury and a degenerative disease. Those written submissions were withdrawn but because they raised a question of law, I have considered the submission in reaching my conclusion in this case.

22 I would therefore allow the appeal, quash the decision of the Compensation Magistrate and instead order the substitution of a determination that the degree of disability was not less than 16 per cent, namely 16.5 per cent.