Comcare Australia v Amorebieta, Francis Xavier [1996] FCA 312

CATCHWORDS

Worker's Compensation - Commonwealth government employees' compensation - Assessment of compensation - Permanent impairment - Injury consisting of aggravation of a degenerative morbid condition of gradual development - "degree of permanent impairment .... resulting from" the injury is that degree to which the aggravation has brought the condition, notwithstanding that the aggravation is only one of several causes of that degree of impairment.

Workers' Compensation - Commonwealth government employees' compensation - Assessment of compensation - Permanent impairment - Guide to the Assessment of the Degree of Permanent Impairment - Table 9.6 - "loss of .... normal range of movement" of thoraco-lumbar spine does not include loss by conscious voluntary restriction of movement to prevent onset of pain.

Safety Rehabilitation and Compensation Act 1988 - Division 4 of Part II

Guide to the Assessment of the Degree of Permanent Impairment

COMCARE AUSTRALIA v. FRANCIS XAVIER ABOREBIETA

VG352 of 1994

Jenkinson J.

Melbourne

3 May, 1996

IN THE FEDERAL COURT OF AUSTRALIA )

VICTORIA DISTRICT REGISTRY ) No. VG352 of 1994

GENERAL DIVISION )

On Appeal from the General Division of the Administrative Appeals Tribunal constituted by Miss S.A. Forgie (Deputy President), Dr D.M. Sutherland (Member) and Mr J. Brassil, AM (Member)

BETWEEN: COMCARE AUSTRALIA

Applicant

AND: FRANCIS XAVIER ABOREBIETA

Respondent

CORAM: Jenkinson J.

PLACE: Melbourne

DATE: 3 May, 1996

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The decision of the Administrative Appeals Tribunal be set aside.

3. The matter of the review of the applicant's delegate's decision made on 4 March 1993 be remitted to the said Tribunal to be heard and determined again according to law by the Tribunal constituted otherwise than as heretofore.

4. The respondent pay the applicant's costs of the appeal including costs reserved.

(Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules)

IN THE FEDERAL COURT OF AUSTRALIA )

VICTORIA DISTRICT REGISTRY ) No. VG352 of 1994

GENERAL DIVISION )

On Appeal from the General Division of the Administrative Appeals Tribunal constituted by Miss S.A. Forgie (Deputy President), Dr. D.M. Sutherland (Member) and Mr. J. Brassil, AM (Member)

BETWEEN: COMCARE AUSTRALIA

Applicant

AND: FRANCIS XAVIER ABOREBIETA

Respondent

CORAM: Jenkinson J.

PLACE: Melbourne

DATE: 3 May, 1996

REASONS FOR JUDGMENT

1. Appeal from a decision of the Administrative Appeals Tribunal.

The grounds of appeal raise questions of law concerning the proper construction of provisions in Division 4 of Part II of the Safety Rehabilitation and Compensation Act 1988 ("the Act"), and the proper interpretation of provisions of the Guide to the Assessment of the Degree of Permanent Impairment, a document prepared by the applicant and approved by the Minister of State administering the Act in exercise of power conferred by that Division ("the Guide") .

2. The first section in that Division commences:

"24.(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury."

"Injury" is defined to mean in the Act, unless the contrary intention appears -

"(a)a disease suffered by an employee; or

(b) 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

(c) 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.

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment."

The definition of "disease" is -

"(a)any ailment suffered by an employee; or

(b) the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation."

"Ailment" is defined to mean "any physical or mental ailment,
disorder, defect or morbid condition (whether of sudden onset or gradual development)."

"Impairment" is defined thus:

"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."

"Permanent" is defined as meaning "likely to continue indefinitely".

3. The respondent was born in 1936. He came to this country from Spain in 1963 and was employed in kitchens, building industries and factories until he joined the staff of the State Bank of Victoria, first as a cleaner and then as a utility officer. Since 1991 his employment has been by the Commonwealth Bank. The respondent's evidence about his experiences at work and generally - which was accepted - the Tribunal summarised in its reasons for decision in the following passage:

"Work prior to January, 1992

7. As a utility officer, Mr Amorebieta said, he was in charge of the storage and distribution of the cleaning materials, vacuuming and mopping floors, cleaning the cafeteria and kitchen and clearing the rubbish in those areas, collecting computer paper from the different sections in the centre for recycling and, with the assistance of others, unloading stores and, each week, approximately 600 boxes of new computer paper. Until the last four years of his working as a utility
officer, all of the handling of the boxes of computer paper was done by hand. Each box weighed approximately 15 to 20 kilogrammes. Mr Amorebieta and other staff would unload the boxes from the truck and place eight or ten of them at a time on a small lift to take the boxes to the basement. Mr Amorebieta unloaded the boxes from the lift and stacked them. During the last four years, they had the assistance of Crown lift machines, which would lift the boxes on pallets. The collection of the waste computer paper continued to be done without the assistance of machinery and the amount of waste paper was equivalent to some 600 boxes each week. He would use a trolley to pick up ten or twelve boxes of the paper at a time and wheel them to a place where they were collected by truck.

Injuries prior to January, 1992

8. Mr Amorebieta stated that all of the back injuries he had suffered prior to January, 1992 were suffered while he worked for the State Bank. Records were admitted in evidence showing that he had claimed compensation in respect of injuries occurring on 21 March, 1986, 5 September, 1986 and 17 October, 1990 (Exhibits 3, 4 and 5). On those occasions, Mr Amorebieta had sought medical treatment and he had been prescribed medication, including Voltaren in at least July or August, 1990 and on 18 October, 1990, which he would take for a week or ten days.

9. Mr Amorebieta could not recall the precise incidents but he readily acknowledged that he had suffered from back problems at work and that he had been prescribed medication, including Voltaren, on those occasions. He did not have any physiotherapy and did not do any back exercises as he did not know them. On each occasion, the pain only lasted a few days, sometimes two, sometimes four.

10. During this time, Mr Amorebieta had some trouble with his back. He did not regard it as serious, however, as he would recover after his doctor had given him a few tablets and he had rested. The pain from which he suffered at this time was quite a big pain but after resting for three or four days, it would go down quite quickly and Mr Amorebieta would go back to work. This happened on five or six occasions before the Bank was taken over by the Commonwealth Bank at the beginning of 1991.

Injuries in January, 1992 and thereafter

11. In January, 1992, Mr Amorebieta was changing lights in the computer room. There were approximately 50 lights in the room and he had changed 15 in about an hour and a half. The covers over the lights, which were suspended from the ceiling and very high, were difficult to remove and re-fit. He stood on a ladder and worked with his arms above his head.

12. Mr Amorebieta had no immediate difficulties with his back and he did his normal work cleaning the cafeteria and kitchen in the afternoon. By the time he finished his work, he started to feel pain in his back. The pain worsened on the train trip home and continued to worsen during the night until it was unbearable in the morning. He saw his doctor, Dr Unger, that morning and he gave him a certificate for four days' rest. At the end of four days, Mr Amorebieta was no better and Dr Unger referred him to a physiotherapist.

13. Mr Amorebieta returned to work after approximately a month but to light duties according to the certificate given to him by Dr Under. He did a little vacuuming for 10 or 15 minutes, picked up some paper and did a little mopping. He did not do heavy mopping as he had done before and his job was quite different from what it had been.

14. After he had been back at work for a short time, Mr Amorebieta suffered from a further episode of back pain. On about 24 February, 1992, he was carrying a container up a flight of stairs when he had a sharp pain in his back. The pain lasted for two or three minutes but then eased enabling him to finish his work. It then followed the pattern of the previous episode and he saw Dr Unger on 25 February, 1992. Dr Unger referred him for a CT scan. Mr Amorebieta returned to work on 26 March, 1992 and resumed full time light duties.

Condition and work after January, 1992

15. After these incidents, he attended physiotherapy three times a week and then two. He then went on specific days and the treatment continued for six months. During that time, Mr Amorebieta also had hydrotherapy. He has not had further physiotherapy or hydrotherapy but does do exercises every day when he wakes up. The physiotherapist gave him those exercises.
Dr Unger has given him Voltaren tablets but he only takes them sometimes and not all of the time.

16. Mr Amorebieta takes Voltaren because of the pain in his back and does so for approximately a week or ten days each month. This differs from his previous usage of the drug in that, for the injuries he suffered before January, 1992, he would only take it for a week or ten days immediately after the injuries. Mr Amorebieta has had to take further time away from work because of his back.

17. The pain he suffered as a result of the incident in January, 1992 was unlike any he had experienced before. It was much more acute and serious and in the centre of his back, an area in which he had never experienced it before. He now feels pain right up on his left hip and leg and the nerve grabs him in that area if he is sitting for too long. As he felt that his real problem was his back, Mr Amorebieta was unable to say when his leg first started to be a problem. If he stands for too long, he gets very tired and his back becomes a problem.

18. Apart from the first two months after the initial incident, Mr Amorebieta has not noticed any improvement at all in his back. Whereas he could do all of his work before January, 1992, his back is much worse than it was before and it is now impossible for him to do all of his work. He now has constant trouble with his back rather than from time to time as before. As he explained it, before January, 1992, he `was an honoured person, ... [he] could do jobs, ... [he] could do lifting, ... [he] could do bending, ... [he] could do everything.' (transcript page 33) Now he can do none of those things without first working out the best way to do them and even then he cannot do repeated bending. He cannot move automatically and he is always very conscious that he must first think about the best way to move before he actually moves.

19. Mr Amorebieta now works in the mail and sorting room. He does not lift anything heavy and does not do any repeated bending. He can sit down sometimes but prefers to stand as he feels that it does not do him any good to sit. Since being on light duties, Mr Amorebieta has taken good care of himself. He has not changed more than one or two lights at a time.

20. Mr Amorebieta looks after his back by resting a good deal. Every night after he has prepared and eaten his dinner, he lies on the carpet with a pillow. He knows that is what is best for him as he cannot sit for any length of time. In the mornings, he showers and dresses after he has done his exercises. He is able to do those things as well as cook his breakfast even though he does not have the same movement as he had before. When he was asked to describe the change in his movement before and after January, 1992, Mr Amorebieta replied:

`I don't know the amount of movement that I actually have or the one you mean. I couldn't tell you exactly how much more I can bend now than before, I don't know that. What I know is that the bending and the movement of my back and the lifting and all these things, if I don't do them carefully they can affect my back.' (transcript page 36)

21. Mr Amorebieta has a garden but he is `not too fussy about it' (transcript page 34). Once a month, he is able to cut the lawn but would not be able to manage it more often than that. There are some jobs, such as the shopping, which cause him pain but which he just has to do to survive.

22. Mr Amorebieta's routine is summarised in the following passage when he had been asked to describe his general activities before and after January, 1992:

`Yes, well my activity - I don't go out like I used to do. I usually stay at home, I like to stay at home and I know I rest, I watch TV, I lay on the carpet and watch TV and I know that does me good. As I say, I don't go out too much - actually I don't go out at all at many times. When I go, well if for some reason or another, well, then I have to do it, but I always take precautions because I know that if I go out to stay long hours or anything like that, it is not going to do me good. I always take those precautions that I had to go home and rest. I know that things, I will go.

Have you always been like that or is that something that has come on since 1992?---That is something that has come out since 1992 and I learn from experience that is
the best way to control my back - is good. You can rest and lay down - especially I do, lie down on the carpet. I put a blanket there, I put one pillow - two and there I am, and that's good to me.'(transcript page 34)

23. His exercises give him some flexibility but this does not mean that he can do a great deal of bending. He might have been able to do all of the movements for the doctors but if he were forced to do those movements many times, he would get hurt. Mr Amorebieta said that he was very restricted in what he could do. His view of his ability to move and the reasons why his ability changed between visits to different doctors was summarised in the following passage:

`I cannot comment on what the doctors says (sic) in that respect. But what I have to say is that they looked something that I did once there, and I don't have to do it again. But that doesn't mean that I can do that anytime. I mean, it is not there. My movement is not there to do it. And some of the movements Mr Weaver told me to do yesterday, actually he did it himself. He is the one who bent my leg this way, bend it the other way. He did it himself. It wasn't up to me, many of them.'(transcript page 59)

24. Mr Amorebieta is 176 cms tall and weighs approximately 100kg. It had been suggested to him that he lose weight and he thought that a good idea generally but did not think that his weight had any great effect on his back. His weight has increased by only a kilogramme or two since 1992."

4. The Tribunal found that degenerative processes in the respondent's lumbar and sacral spine, involving both bones and intervertebral discs, had been occurring for a number of years before January 1992. The Tribunal also found that an aggravation of that morbid condition was contributed to in a material degree by the respondent's employment on the day in January 1992 when he changed lights in the computer room. No attack is made on that finding, or on the further finding that the injury on that day (that is, the aggravation, of the morbid condition, that was contributed to in a material degree by his employment) resulted in a permanent impairment.

5. Further sub-sections of s.24 provide:

"(3)Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under sub-section (4), being an amount not exceeding the maximum amount at the date of the assessment.

(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).

(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.

(6) The degree of permanent impairment shall be expressed as a percentage.

(7) Subject to section 25, where Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section.

...............................................

(9) For the purposes of this section, the maximum amount is $80,000."

Sections 27 and 28 provide:

"27.(1)Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any
non-economic loss suffered by the employee as a result of that injury or impairment.

(2) The amount of compensation is an amount assessed by Comcare under the formula:

($15,000 x A) + ($15,000 x B)

where:

A is the percentage finally determined by Comcare under section 24 to be the degree of permanent impairment of the employee; and

B is the percentage determined by Comcare under the approved Guide to be the degree of non-economic loss suffered by the employee.

Approved guide

28.(1) 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;

(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; and

(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.

(2) Comcare may, from time to time, by instrument in writing, vary or revoke the approved Guide.

(3) A document prepared by Comcare under subsection (1), and an instrument under subsection (2), have no force or effect unless and until approved by the Minister.

(4) Where Comcare, a licensed authority, a licensed corporation or the Administrative Appeals Tribunal is required to assess or re-assess, or review the assessment or re-assessment of, the degree of permanent impairment of an employee resulting from an injury, or the degree of non-economic loss suffered by an employee, the provisions of the approved Guide are binding on Comcare, the licensed authority, the licensed corporation or the Administrative Appeals Tribunal, as the case may be, in the carrying out of that assessment, re-assessment or review, and the assessment, re-assessment or review shall be made under the relevant provisions of the approved Guide.

(5) The percentage of permanent impairment or non-economic loss suffered by an employee as a result of an injury ascertained under the methods referred to in paragraph (1)(c) may be 0%.

(6) In preparing criteria for the purposes of paragraphs (1)(a) and (b), or in varying those criteria, Comcare shall have regard to medical opinion concerning the nature and effect (including possible effect) of the injury and the extent (if any) to which impairment resulting from the injury, or non-economic loss resulting from the injury or impairment, may reasonably be capable of being reduced or removed.

(7) When a document prepared by Comcare in accordance with subsection (1), or an instrument under subsection (2), has been approved by the Minister, Comcare shall cause copies of the document or instrument, as the case may be, to be laid before each House of the Parliament within 15 sitting days of that House after the Minister received those copies.

(8) Comcare shall make copies of the `Guide to the Assessment of the Degree of Permanent Impairment' that has been approved by the Minister, and of any variation of that Guide that has been so approved, available upon application by a person and payment of the prescribed fee(if any).

(9) Sections 48 (other than paragraph (1) (a) and (b) and subsection (2)), 49 and 50 of the Acts Interpretation Act 1901 apply in relation to a document, being the approved Guide or an instrument varying or revoking that Guide that has been approved by the Minister, as if, in those sections, references to regulations were references to such a document and references to a regulation were references to a provision of such a document.

(10)For the purpose of the application of the provisions of the Acts Interpretation Act 1901 in accordance with subsection (9), a document referred to in that subsection shall be taken to have been made on the date on which it was approved by the Minister under this section."

Part of the introduction in the Guide reads:

"The Guide is divided into two parts, namely :

. PART A - which is to be used to assess the degree of permanent impairment resulting from an injury; and

. PART B - which is to be used to assess the degree of non-economic loss resulting from an injury or impairment.

The `Principles of Assessment' and `Glossary' segments which precede Parts A and B contain information relevant to the interpretation and application of those parts."

Under the heading "Principles of Assessment" are, inter alia, the following passages:

"Impairment and Non-Economic Loss

Impairment means `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'. It relates to the health status of an individual and includes anatomical loss, anatomical abnormality, physiological abnormality and psychological abnormality. Throughout this guide emphasis is given to loss of function as a basis of assessment of impairment and as far as possible objective criteria have been used.

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 or primary biological and
psychosocial function such as standing, moving, feeding and self care.

Non-economic loss, which is assessed in accordance with Part B of the Guide, is a subjective concept of the effects of the impairment on the employee's life. It includes pain and suffering, loss of amenities of life, loss of expectation of life and any other real inconveniences caused by the impairment.

Whilst `activities of daily living' are used to assess impairment they should not be confused with `lifestyle effects' which are used to assess non-economic loss. `Lifestyle effects' are a measure of an individual's mobility and enjoyment of, and participation in, recreation, leisure activities and social relationships. It is emphasised that the employee must be aware of the losses suffered. While employees may have equal ratings of impairment it would not be unusual for them to receive different ratings for non-economic loss because of their different lifestyles.

Employability and Incapacity

The concepts of `employability' and `incapacity' are not included in the assessment of impairment and non-economic loss. Incapacity is influenced by factors other than the degree of impairment and is compensated by weekly payments which are in addition to these payments.

...............................................

The Impairment Tables

Part A of the Guide is based on the concept of `whole person impairment' which is drawn from the American Medical Association's Guides.

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.

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

Gradations of Impairment

Each table contains impairment values at gradations of 5% or multiples of five percent. Where it is not clear which of two impairment values is more appropriate, Comcare has the discretion to determine which value properly reflects the degree of impairment.

There is no discretion to choose an impairment value not specified in the Guide. For example, where 10% and 20% are specified values there is no discretion to determine impairment as 15%.

Combined Impairments

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.

Double Assessment

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)."

...............................................

Aggravation

An assessment should not be made unless the effects of an aggravation are considered permanent. If the employee's impairment is entirely attributable to a pre-existing or
underlying condition, or to the natural progression of such a condition the assessment for permanent impairment should be nil.

Where it is possible to isolate the compensable effects of an injury upon a pre-existing or underlying condition the assessment of the degree of permanent impairment should reflect only the impairment due to those compensable effects."

Under the heading "Glossary" are, inter alia, the following passages:

"Activities of Daily Living Activities of daily living are activities which an individual needs to perform to function in a non-specific environment ie to live. The measure of activities of daily living is a measure of primary biological and psychosocial function. They are:

Ability to receive and respond to incoming stimuli

Standing

Moving

Feeding (includes eating but not the preparation of food)

Control of bladder and bowel

Self care (bathing dressing etc)

Sexual function.

.........................................................

Pain and Suffering includes physical pain as well as mental distress resulting from the accepted conditions or impairment. For example, grief, anguish, fear, frustration, humiliation, embarrassment etc.

Whole Person Impairment 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."

The table of contents to the Guide Tables reads:

"List of Tables.............................iv

Preface.....................................vii

Introduction................................1

Principles of Assessment....................3

Glossary....................................7

PART A - IMPAIRMENT

1 Cardiovascular System.................9

2 Respiratory System....................13

3 Endocrine System......................16

4 Skin Disorders........................17

5 Psychiatric Disorders.................20

6 Visual System.........................22

7 Ear, Nose and Throat Disorders........23

8 Digestive System......................25

9 Musculo-skeletal System...............30

10 Urinary System........................37

11 Reproductive System...................40

12 Neurological Function.................45

13 Miscellaneous.........................52

14 Combined Values Chart.................55

PART B - NON-ECONOMIC LOSS

Introduction................................58

Pain and Suffering..........................59

Loss of Amenities...........................60

Other Loss..................................62

Loss of Expectation of Life.................63

Combined Value Calculation..................64

Final Calculation...........................65"

One of the Tables relating to the Musculo-Skeletal system is Table 9.6, which reads:

"TABLE 9.6

Spine

(Percentage Whole Person Impairment)

Note: Lesions of the sacrum and coccyx should be assessed by using the table which most appropriately reflects the functional impairment. This will usually be Table 9.5.

Lesions of the spine are often accompanied by neurological consequences. These should be assessed using Table 9.4 or 9.5 and the results combined using the Combined Values Table.

_____________________________________________________________________

DESCRIPTION OF LEVEL OF IMPAIRMENT

% CERVICAL SPINE THORACO-LUMBAR SPINE

_____________________________________________________________________

0 X-ray changes only X-ray changes only

_____________________________________________________________________

5Minor restrictions of movement Minor restrictions of movement

Crush fracture-compression 25 - 50 percent

_____________________________________________________________________

10 Loss of half normal range of Loss of less than half

movement normal range of movement

Crush fracture-compression greater than 50 percent

_____________________________________________________________________

15 Loss of more than half normal Loss of half normal range of

range of movement movement

_____________________________________________________________________

20 Complete loss of movement Loss of more than half normal range of movement

_____________________________________________________________________

30 - Complete loss of movement

___________________________________________________________________"

Table 9.5 reads:

TABLE 9.5

Limb Function - Lower Limb

(Percentage Whole Person Impairment)

_______________________________________________

% DESCRIPTION OF LEVEL OF IMPAIRMENT

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

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

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

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

65Cannot stand or walk."

6. It was a ground of appeal that the Tribunal had failed to comply with the requirement imposed by s.24(5) to "determine the degree of permanent impairment resulting from"
the injury because the reasons for the Tribunal's decision demonstrated that it had failed to consider what degree of permanent impairment of the respondent had resulted from events other than the injury which occurred in January 1992. On its proper construction s.24(5) required, according to the submission of counsel for the applicant, a determination of the degree of permanent impairment which had resulted from that injury alone, as distinct from the degree of permanent impairment which had resulted from the preceding degenerative processes (both idiopathic and injury-caused) and the injury of January 1992. Only the former degree of impairment (expressed as a percentage) was to be the subject of the assessment ordained by s.24(4), it was submitted. If the submission were accepted, there was expert and other evidence before the Tribunal by reference to which the required determination could be made, according to the submission.

7. In Ward v. Corrimal-Balgownie Collieries Ltd. (1938) 61 C.L.R. 120 at 140-141 Dixon J. expounded the meaning of the words "injury results" in workers' compensation legislation, thus:

"In the present case the state of facts is that an injury for which the appellant is entitled to compensation produces a bodily condition which by itself would not amount to or result in total disablement, but which is combined with another bodily condition arising independently so that together they result in total disablement, a total disablement that is permanent.

The question is whether this state of facts satisfies the description `the case of a worker
whose injury results in total and permanent disablement,' and brings the appellant within the exception formerly standing in sub-sec. 3 of sec. 9.

In my opinion we are precluded by authority from giving an affirmative answer to the question. The word `results' as it occurs in the exception must receive the same meaning and effect as in the well-known expression in sub-sec. 1 of sec. 9: `where total or partial incapacity for work results from the injury,' an expression transcribed from Schedule 1.(1)(b) of the British Workmen's Compensation Act 1906. It is true that the word has been held satisfied where the accident or the injury is one cause, although not the sole cause, of the incapacity. The cases cited above adopt, sometimes expressly, sometimes tacitly, this construction of the word `results.' But the statement that the incapacity need not be solely caused by the accident or injury is directed to cases where, after the workman suffers incapacity by accident, he encounters some further cause preventing his earning a full livelihood, such as a second accident or disease enough in itself to incapacitate him, or even imprisonment. Scrutton L.J. described these as `cases where loss of wages would follow from either of two independent causes,of which damage from the accident would be one' (Lewis v. Guest, Keen & Nettlefold Ltd. (1928) 1 K.B., at p.40). The statement may contemplate also a chain of causation consisting of links representing different factors or events all terminating in a single conclusion, that is to say, in one condition amounting, as the case may be, to total or to partial incapacity. But it is not concerned with independent causes producing independent consequences, distinct bodily conditions which amount to total incapacity only because they must be added together."

The underlined words in that passage have been a source from which conclusions have been drawn about the compensability, under similar legislation, of incapacity, death and total disablement to the occurrence of which events other than an injury capable of attracting compensation, as well as that injury, have made causal contributions. (See, for example Bratovich v. Rheem (Aust.) Pty. Ltd. 1971) 2 S.A.S.R. 33 at 443; Morris v. George [1977] 2 N.S.W.L.R. 552 at 565-567, 579-581). The definitions of "injury" and "disease" in the Act as it now stands compel the conclusion, which judicial reasoning had reached upon earlier workers' compensation legislation, that an aggravation, that was contributed to in a material degree by the employee's employment, of a disease wholly unrelated causally to that employment is compensable if the aggravation results in death or incapacity. (See, for example, The Commonwealth v. Rutledge (1964) 111 C.L.R. 1.) No less firmly established is the conclusion that in workers' compensation legislation the expression of causal relationship by the words "results from" imports the concept of causation as it is known to the law, without seeking to modify it, and the conclusion that "[t]he legal concept of causation when applied in the field of personal injury takes the person injured as it finds him, with all his pre-dispositions and susceptibilities, whatever they may be". (Migge v. Wormald Bros. Industries Ltd. [1972] 2 N.S.W.L.R. 29 at 44; on appeal (1973) 47 A.L.J.R. 236 at 237). The same is to be said of the words "results in" in s.24(1) and "resulting from" in s.24(5), in my opinion. The respondent's susceptibility consisted of a degenerated spine liable under relatively minor strain to sustain damage, or to malfunction, in such a way as to cause the respondent pain in circumstances in which, and in intensity and duration which, he had not previously suffered pain. The injury of January 1992 - that is the aggravation of his spinal disease - "resulted in" the impairment which caused that pain which he had not previously been caused.

8. So much I take counsel for the applicant to have conceded. His submission distinguishes between, on the one hand, sections imposing liability to pay compensation in respect of injury resulting in incapacity for work or in death and, on the other, s.24(5), which directs determination of the degree of permanent impairment, but, according to the submission, only of so great a degree of impairment as is proportionate to the causal contribution of the incident in January 1992, as compared with the causal contribution of what had happened to, and in, the respondent's spine before that time. The inclusion in s.24(5) of the phrase "resulting from an injury" was said to support that submission.

9. I cannot accept the submission. The inclusion of the phrase in s.24(5) is explicable as a means of making clear that only impairment which results from harm suffered in compensable circumstances is to be the subject of determination. "Injury" is so defined as to require contribution to the harm by the employment or, in the case of an injury other than a disease or the aggravation of such an injury, to require that it arise "in the course of" the employment. There is in my opinion no reason to think that the inclusion of the phrase "resulting from the injury" in s.24(5) is designed to limit the operation of s.24(1), which imposes a liability to pay compensation in respect of the aggravation of the respondent's spinal disease. The measure of that compensation is the degree of permanent impairment which has resulted from that aggravation of the disease, and in contemplation of law the degree of impairment to which the aggravation brings the applicant's spine is caused by - "results from" - that aggravation, whatever the lesser degree of impairment was which preceded that aggravation, and whatever the extent to which events and degenerative processes preceding that aggravation contributed to cause that degree of impairment.

10. The conclusions I have stated are not in my opinion inconsistent with the statements, quoted in paragraph 5 hereof, concerning aggravation in the "Principles of Assessment" in the Guide. Here the Tribunal did isolate the "compensable effects" of the aggravation upon the "pre-existing or underlying condition", thus:

"We are also satisfied on the basis of all of the medical evidence that Mr Amorebieta is suffering from degeneration in his spine. That process has been occurring over a lengthy period of time. Whether that is related to his age or his work is not possible for us to determine. We are satisfied, however, that it is not due to his weight, which we observed to be evenly distributed and which, on the medical evidence we were given, would not make any significant contribution to his condition.

70. However the degeneration has occurred, we are satisfied that until January, 1992, it was asymptomatic except on a very few occasions and then only for a few days. We are satisfied that the pain and restrictions from which he currently suffers followed and resulted from the January, 1992 incident. At the very least, the incident of January, 1992 rendered what was
essentially an asymptomatic condition into a symptomatic condition.

71. As at least that has happened, Mr Amorebieta has suffered an injury within the meaning of the 1988 Act. The symptoms from which he suffers have been exacerbated as a result of the incident at his employment in January, 1992. That is to say, the aggravation of his pre-existing condition has arisen out of, or in the course of, his employment in January, 1992. This is so even if we are unable to identify whether the incident on January, 1992 changed the underlying pathology of his condition."

The aggravation resulted in whatever restriction of thoraco-lumbar spine movement, whether caused by pain or by physical incapacity, should be assessed under Table 9.6 at the time when the determination required by s.24(5) is made. There was no evidence of restriction of that movement immediately before the January 1992 incident. Such evidence as there was of restriction before that incident related to short periods of time following incidents of onset of back pain. A compensable effect of the aggravation upon the pre-existing or underlying condition is accordingly the restriction of movement found at a time of determination after January 1992.

11. It was a further ground of appeal that the Tribunal had erred in having regard to the conscious and voluntary restrictions which the respondent imposed on the range of movement of his thoraco-lumbar spine when the Tribunal was determining what the level of impairment of that spine was on Table 9.6 of the Guide. The range of movement achieved by the respondent at the request of medical practitioners examining him for assessment of his permanent impairment was on occasions close to normal and usually not much less than normal. His evidence - accepted by the Tribunal - was that he complied with the medical practitioners' requests, but that when not under medical examination he intentionally restricted the range, as well as the frequency, of movement of his spine in order to avoid making his back painful. The Tribunal treated movement thus voluntarily avoided as a loss, pro tanto, of the normal range of movement in assessing the level of impairment under Table 9.6. The Tribunal described the voluntary abstention from movement as "the restrictions he must impose upon himself".

12. Cessation, during medical examination or assessment, of a particular movement of the thoraco-lumbar spine at a particular point short of attainment of the limit of the normal range of movement in response to the onset of back pain (other than minor discomfort) would, as I suppose, be treated by medical practitioners as loss of so much of the normal range as lay beyond that point. I cannot go beyond supposition because, although what I have stated seems to me implicit in the medical evidence, I have not found in the evidence an explicit statement to that effect.

13. The evidence of the respondent to which the Tribunal had regard was not a voluntary restriction of movement evoked by the onset of pain. He was speaking of prophylactic restriction of movement, and limitation of the frequency and the repetition of movement, in order to prevent the onset of pain. The percentage levels of Table 9.6 are measures of "whole person impairment", evaluation of which, the Guide Glossary teaches, is "a medical appraisal of the nature and effect of an injury or disease on a person's functional capacity and on the activities of daily living". Quoted above is the exposition in the Glossary of the meaning of the latter phrase. Also quoted above is the warning in the Principles of Assessment that "activities of daily living" should not be confused with "lifestyle effects". It seems natural to conceive of functional capacity as that capacity which movement of the spine that is both possible and not physiologically harmful affords. If a person whose spine is permanently impaired is given, and accepts, medical advice that a particular movement of the spine, although painless, is physiologically harmful or involves risk of such harm, it would be natural to think that movement to be excluded from his functional capacity. From that position it may be thought natural to make the same exclusion in respect of restrictions of movements which the person's own experience or instinct tells him are harmful to him or expose him to risk of harm. But the Guide is intended to prescribe criteria by which the degree of permanent impairment shall be determined. Loss, or loss of use, or the damage or malfunction, of a bodily system or function or part thereof resulting from injury does not in my opinion comprehend voluntary abstention from use, even where the abstention is calculated, and likely, to benefit the bodily system or function. Nor does the expression "loss of [some part of] normal range of movement" of a limb or other part of the musculo-skeletal system comprehend in the speech of medical practitioners a loss which is imposed neither by physical incapacity to move nor by pain inhibiting movement, within that part of the range. In my opinion the Tribunal erred in law in allowing the expression a wider meaning when it observed that "the normal range of movement refers not only to the usual extent to which variation is possible in the action or process of moving but also to the way in which the action or process of moving is carried out and the steps that must be taken to ensure that Mr Amorebieta is able to continue to move". If the expression "normal range of movement" were to be given the meaning it has in ordinary speech where it occurs in Table 9.6, the determination of that meaning would be a question of fact. But the question whether the expression is used in Table 9.6 in a sense other than that which it has in ordinary speech is a question of law. (See N.S.W. Associated Blue-Metal Quarries Ltd. v. Federal Commissioner of Taxation (1956) 94 C.L.R. 509 at 511-512; Hope v. Bathurst City Council (1980) 144 C.L.R. 1.) In my opinion the expression is used in Table 9.6 in the sense in which it is understood by medical practitioners when used in reference to the human musculo-skeletal system. And the evidence before the Tribunal in my opinion compelled the conclusion that the expression does not in the parlance of the medical profession have the meaning ascribed to it by the Tribunal.

14. In determining the level of the respondent's
permanent impairment by reference to Table 9.6 the Tribunal referred to, and took into account, restrictions not only of the range of movement of the respondent's thoraco-lumbar spine but also restrictions of his "lifestyle". The Tribunal comprehended by that word at least the following:

"he is unable to engage in spontaneous movement and must plan his movement if he is to lift something or to bend. He must rest frequently and each evening he must lie down on the floor as prolonged sitting causes him pain. His activities and his lifestyle are very restricted in order to alleviate the pain in his spine and to avoid its recurrence."

It may be that some of the restrictions the Tribunal had in mind would answer part or all of what in Table 9.5 are the descriptions of the two lowest levels of impairment. Table 9.6 directs that where a lesion or lesions of the spine are "accompanied by neurological consequences ... [t]hese should be assessed using Table 9.4 or 9.5 and the results combined using the Combined Values Table". (Table 9.4 relates to an upper limb. Table 9.5 is set out in paragraph 5 hereof. The Combined Values Table (numbered 14.1) enables the reader to read the "combined result" which is derived by the application of an arithmetical formula, which is also disclosed on the first page of that Table.) One might suppose pain to be an obvious example of a neurological consequence. But pain is within the defined meaning of "non-economic loss" and therefore the subject of assessment in accordance with the provisions of s.27. There was reference to Table 9.5 in evidence, but no explicit reference to that Table in the Tribunal's reasons for decision. However that may be, voluntary abstention from physical activity to prevent the onset of pain, and voluntary abstention from physical activity to alleviate pain, are not in my opinion to be taken into account, except in the circumstances to which reference is made in paragraph 12 hereof, in determining the level of permanent impairment by reference to Table 9.6 or Table 9.5. In doing so the Tribunal in my opinion erred in law.

15. It was a further ground of appeal that the Tribunal, having found "that there are occasions on which [the respondent] has a full range of movement if movement is to be measured in a technical sense", erred in law in failing to recognise that the word "loss" in Table 9.6 - and particularly in the phrase "loss of less than half normal range of movement" - requires that that degree of restriction of movement be always present. In that stark form the submission was perhaps not pressed. Nor do I accept it. The finding was based on some of the evidence by medical practitioners who at particular examinations found the respondent able to move within the normal range. But what is done on a particular occasion under medical observation is not determinative of the assessment which Table 9.6 requires. The other way in which this ground was presented was in the form of a submission that the Tribunal did not "appear to have regard to that evidence [of the medical practitioners] as relevant to determining percentage of permanent impairment suffered by the Respondent". But the Tribunal said that it did:

"The restrictions which he must place on his life and the care he must take are quite outside the normal restrictions and care taken by a person not suffering from Mr Amorebieta's condition. These are aspects which must be taken into account together with the fact that he can, on occasion, also move his spine in the manner of a person without his impairment."

I do not uphold this ground.

16. It was a ground of appeal that the Tribunal had failed to recognise that on its proper construction Table 9.6 required that the loss of less than half normal range of movement of the thoraco-lumbar which would justify assessment of "whole person impairment" as 10 per centum was a loss of at least one third of the normal range of movement of the thoraco-lumbar spine. That construction was proposed because ten per centum whole person impairment was one third of the thirty per centum whole person impairment shown by the Table to be appropriate in respect of complete loss of movement of the thoraco-lumbar spine.

17. The explanation of the expression "whole person impairment" in the Guide Glossary (set out in paragraph 5 hereof) shows it to signify a "medical appraisal". Without expert medical evidence that the mathematical relationship suggested in submission accords with the processes of medical appraisal of whole person impairment the Tribunal would not in my opinion be free to accept the submission. I have not found any such evidence in the material before the Tribunal. I do not uphold this ground.

18. Other grounds asserted failures on the part of the Tribunal to state its findings upon issues of fact as to which conflicting medical evidence was said to have been given, and failures on the part of the Tribunal adequately to disclose its reasons for certain findings. For the reasons I have given, the decision of the Tribunal is to be set aside and the matter of the review remitted for rehearing. And, in accordance with the course recommended by Davies and Foster JJ. in Northern N.S.W. FM Pty. Ltd. v. Australian Broadcasting Tribunal (1990) 39 F.C.R. 39 at 42-43, the rehearing should be by the Tribunal differently constituted. In those

circumstances I do not express any opinion concerning those grounds.

I certify that this and the 30 preceding pages are a true copy of the Reasons for Judgment of the Honourable Justice Jenkinson.

Associate

Dated: 3 May, 1996

Counsel for the Applicant : Mr. J. Lenczner

Counsel for the Respondent : Mr. P.J. Coish

Solicitor for the Applicant : Australian Government Solicitor

Solicitor for the Respondent : Slater & Gordon

Dates of Hearing : 3 and 4 April, 1996

Date of Judgment : 3 May, 1996

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