Re Mimi Bloomfield and Commission of the Safety Rehabilitation and Compensation of Commonwealth Employees [1993] AATA 92 (19 March 1993)

ADMINISTRATIVE APPEALS TRIBUNAL

Re: MIMI BLOOMFIELD
And: COMMISSION FOR THE SAFETY REHABILITATION AND
COMPENSATION OF COMMONWEALTH
EMPLOYEES
No. N92/30
AAT No. 8597
Number of pages - 8
Compensation

COURT

ADMINISTRATIVE APPEALS TRIBUNAL
GENERAL ADMINISTRATIVE DIVISION
BJ McMahon(1) (Deputy President)

CATCHWORDS

Compensation - Commonwealth employee - claim for permanent impairment - claim rejected on the ground that permanent impairment occurred prior to date of commencement of 1988 Act - review of - whether entitlement to compensation

Compensation (Commonwealth Government Employees) Act 1971 (Cth) ss 6, 39

Safety Rehabilitation and Compensation Act 1988 (Cth) ss 24, 27, 28, 124

Blackman v Australian Telecommunications Corporation [1990] FCA 295; 12 AAR 11

Re Brennan and Comcare [1992] AATA 211; 15 AAR 551

Re Burrell and Commonwealth of Australia 5 ALD 579

Re Howden and Commonwealth of Australia 13 ALD 567

HEARING

SYDNEY, 1 March 1993
19:3:1993

ORDER

The Tribunal sets aside the decision under review and the matter is remitted to the respondent with the direction that an assessment be made of the degree of the applicant's permanent incapacity for the purposes of ss 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 (Cth) and that she be paid compensation in accordance with those sections.

DECISION

On 11 February 1991 the applicant made a claim for permanent impairment pursuant to s 24 of the Safety Rehabilitation and Compensation Act (formerly the Commonwealth Employees Rehabilitation and Compensation Act) 1988 ("the 1988 Act"). Her accepted condition was described as "acute neck strain". The permanent impairment was described in her first claim, which did not proceed, as "acute neck strain, left carpal tunnel, right shoulder pain". In her second claim which is the subject of this application the permanent impairment is described as "pain syndrome, left carpal tunnel, right shoulder, neck strain".

2. Following a report by Dr Cameron that he could discern no impairment at all, the delegate rejected the second claim. The reviewable decision rejected Dr Cameron's view of the medical evidence, but also rejected the applicant's claim for permanent impairment on different grounds. This application is brought to review that reviewable decision.

3. The reviewing officer came to the conclusion that the applicant's permanent impairment (the existence of which is now not in dispute) occurred before 1 December 1988, the date of the commencement of the 1988 Act. Following the decision of the Federal Court in Blackman v Australian Telecommunications Corporation [1990] FCA 295; 12 AAR 11, he held that the applicant was not entitled to compensation under the 1988 Act.

4. Compensation for permanent impairment is a concept that was introduced by the 1988 Act. The nearest equivalent under the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act") was to be found in s 39 of the 1971 Act. This provides for compensation to be paid in accordance with various scales of payment for loss of use of specific parts of the employee's body. The reviewing officer considered whether the applicant might be entitled to compensation under this section for a percentage loss of use of her left arm. He concluded however that sub-section 39(14) precluded payment.

5. This sub-section is in the following terms -
"(14) An amount of compensation referred to in this section is not

payable in respect of an injury so long as the employee is, or is
likely to become, totally incapacitated for work where the incapacity
for work results, or, if it occurs, will result, in whole or in part
from that injury".

6. The applicant was employed by the Commonwealth Bank of Australia. Since her injuries developed, she has had a pattern of incapacity over varying periods, ultimately leading to a complete cessation of work in July 1990. Because the bank was unable to provide suitable employment, it was considered that the applicant was entitled to the benefit of s 26 of the 1971 Act even though, it was conceded, she was medically only partially incapacitated.

7. The reviewing officer took the view that for the purposes of sub-section (14) the fact that she was being paid compensation pursuant to s 26 "as if the employee were totally incapacitated for work as a result of that injury" meant that she should be regarded as totally incapacitated for the purposes of sub-section (14), and accordingly no amount of compensation was payable under s 39.

8. I have come to the conclusion that the evidence compels a finding that the applicant's permanent impairment occurred after 1 December 1988. Accordingly it will not be necessary to examine the arguments raised concerning the interpretation of the 1971 Act. The claim is to be dealt with, in my view, wholly in accordance with the provisions of the 1988 Act.

9. The relevant parts of s 24 under which the claim is made are as follows -

"s24(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.
(2) For the purpose of determining whether an impairment is permanent,
Comcare shall have regard to :
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee's condition;
(c) whether the employee has undertaken all reasonable
rehabilitative treatment for the impairment; and
(d) any other relevant matters.
(3) Subject to this section, the amount of compensation payable to the
employee is such amount, as is assessed by Comcare under subsection
(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."

10. Having determined that a permanent impairment exists, the decision maker is then obliged by sub-section 24(5) to assess the degree of impairment by reference to the approved Guide. This publication is provided for in s 28, the relevant terms of which are as follows -

"s28(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."

The section goes on to provide that the Guide is a disallowable instrument and thus its terms are part of determinative law.

11. The Guide was to be prepared by Comcare (the present respondent) and was to contain criteria by reference to which the degree of permanent impairment could be measured. The criteria contained in the Guide were not intended themselves to determine whether or not a permanent impairment existed as was apparently assumed in Re Brennan and Comcare [1992] AATA 211; 15 AAR 551 at 559. As the Guide has been drafted, however, I believe that it helps to shed light on the criteria to be applied in determining the existence of a permanent impairment, as well as its degree.

12. On page 4, under the heading of "Principles of Assessment" the Guide repeats the terms of sub-section 24(2) and then adds these words -

"An impairment will generally be regarded as permanent when the
recovery process has been completed, ie when the full and final
effects of convalescence, the natural healing process and active (as
opposed to palliative) medical treatment has been achieved."

13. Apart from the matters set out in paragraphs (a), (b) and (c) in sub-section 24(2), a decision maker is to have regard to "any other relevant matters" in determining whether an impairment is permanent. "Permanent" is defined in s 4 to mean "likely to continue indefinitely". "Impairment" is defined in the same section to mean "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". What, then, are the other relevant matters that a decision maker is to have regard to?

14. In my view, it is clear from the paragraph in the Guide which I have quoted that Comcare itself has formulated other relevant matters which it believes should be taken into account. They are whether the recovery process has been completed and whether the full and final effects of convalescence, the natural healing process, and active (as opposed to palliative) medical treatment has been achieved. These are clearly relevant matters. There may well be others. For example, in the case of a disease it would be relevant to take into account whether the elements of chronicity had been established. It is sufficient for the purposes of these reasons, however, if I address these aforementioned additional relevant matters in determining whether the applicant's impairment is permanent.

15. That decision is important because it is necessary to determine when her permanent impairment "occurred". Sub-section 124(3) is in the following terms -

"s124(3) A person is not entitled to compensation under section 24 or
25 in respect of a permanent impairment, or under section 17 in
respect of the death of an employee, being an impairment or death that
occurred before the commencing date, if:
(a) the person received compensation of a lump sum in respect of that
impairment or death under the 1912 Act, the 1930 Act or the 1971 Act; or
(b) the person was not entitled to receive compensation of a lump sum
in respect of that impairment or death :
(i) where the impairment or death occurred before the commencement of
the 1930 Act - under the 1912 Act;
(ii) where the impairment or death occurred after the commencement of
the 1930 Act but before the commencement of the 1971 Act - under the
1930 Act as in force when the impairment or death occurred; or
(iii) in any other case - under the 1971 Act as in force when the
impairment or death occurred."

16. A permanent impairment constituted, for example, by the loss of a leg can be said to have occurred immediately the leg was lost. An impairment of the type from which the applicant suffers has no such easily identifiable starting point. The second and third meanings attributed to "occur" in the Shorter Oxford English Dictionary are "to present itself; to "turn up" or appear, to happen, before, take place". The language of the statute is therefore not apt to describe a condition evolving towards a state of permanence. It is language, however, to which meaning must be given in interpreting the Act.

17. No assistance is to be derived from Blackman either at first instance or on appeal. The condition of mesothelioma from which the applicant suffered in that case was discrete and was identified for the first time when the applicant sought medical treatment. Fixing the date of its occurrence for statutory purposes was therefore straightforward. It is no part of the present applicant's case that her impairment grew worse after 1 December 1988 and therefore new occurrences of the impairment occurred as was argued by the applicant in Blackman. When Mrs Bloomfield's permanent impairment occurred therefore, must be determined by reference to other authorities and principles.

18. It has long been recognised that compensation should be assessed at the time when the injury stabilises to such an extent that it can be classified and quantified with reasonable accuracy. That principle was affirmed in Re Burrell and Commonwealth of Australia 5 ALD 579. It has been followed in a number of cases since, notably in Re Howden and Commonwealth of Australia 13 ALD 567.

19. Such an approach to the temporal requirements of the applicant's claim is consistent with the approach I have outlined concerning the establishment of the permanence of her impairment. In other words, the appropriate time to assess whether the impairment is permanent, and also when it occurred, is when the applicant's position has stabilised into a state of permanence. In my view, the evidence in this application, indicates that this state of affairs came about after 1 December 1988.

20. The respondent submitted that the occurrence of permanence was (if one must put a precise date upon it) on 14 April 1988, when the applicant was first referred to her treating specialist, Dr Read, by her general practitioner, Dr Christopher. In my view, the evidence does not support this submission. Dr Read's report shows that there was an active prospect of treatment at that stage. That expectation was fulfilled in later developments. On 14 April 1988 Dr Read, a consultant physician rheumatologist, reported -

"The symptoms which Mrs. Bloomfield is experiencing in her lower back
are undoubtedly secondary to her disc disease and I suspect that there
is some nerve compression causing the numbness in the leg. I think
this would be best managed at this stage with bed rest and some
physiotherapy and I have written to her Physiotherapist about this.
The problem of the regional pain syndrome in the shoulder girdle
remains and I am sure that this is responsible for a lot of her
headaches and dizziness. I wonder about a left carpal tunnel syndrome
and I am arranging for a nerve conduction study to be done.
I will review her with the results and will be in touch with you again
at this time."

21. On Dr Read's advice, carpal tunnel surgery was carried out on 5 May 1988. Obviously, active medical treatment was still being pursued. By 8 September 1988, Dr Read reported: "She is certainly recovering and hopefully will be able to return to gainful employment as soon as her symptoms have settled sufficiently." Again, this is an apt description of a medical condition that has not yet stabilised. By 11 November 1988 she was continuing to improve and arrangements were made to return her to restrictive duties.

22. Dr Read reported -

"Although recovery from the carpal tunnel operation was slow, when
last seen by myself on 3rd November 1988 she had reasonable function
and only mild discomfort and slight swelling. The right regional pain
problems has not settled completely. She is still unable to do tasks
which require her to have her hand above the shoulder level or are of
a repetitive nature. Heavy work also aggravates the symptoms, for
instance she cannot vacuum or iron without discomfort. On the whole
she has conitnued (sic) to improve with each visit. She is a very
positive lady and is anxious to return to work.
I have reviewed the list of the duties, which she performed prior to
developing her symptoms, which you kindly sent me. The tasks which
would have be (sic) instrumental in causing the symptoms are those
that require constant repetitive movements of the shoulder or the
wrist. It is asummed (sic) that the tasks which she had to do in
checking the books was done fairly rapidly, sitting in one position.
Lifting the boxes of books could certainly have aggravated her
symptoms once present.
I note that you have listed her duties on returning to work. I would
make the following additional suggestions. Her work station should be
assessed to ensure that it is ergonometrically (sic) satisfactory. I
think initially she should not be required to bend and lift boxes from
the ground, putting traction on the brachial plexuses. She should be
allowed to work at her own pace without pressure and be encouraged to
increase her workload only as she is able.
I am of the opinion that Mrs. Bloomfield's attitude to returning to
work is very positive. I believe that she should be allowed to return
to work on restricted duties as soon as is feasible."

23. Mrs Bloomfield resumed work on 24 November 1988, but was unable to carry on beyond 28 November. She was still undergoing rehabilitation. This continued until 22 February 1989 (almost 3 months after the commencement of the 1988 Act) when the rehabilitation doctor discharged her on the basis that there was nothing further he could do for her.

24. She ceased work in July 1990 and has not returned to her place of employment. Nevertheless, active medical treatment continued. Dr Blum carried out another carpal tunnel operation on 29 August 1990. His operating notes, as quoted by Dr Read, include these observations: "The nerve was quite severely compressed beneath the remaining flexor retinaclum and was indeed grooved. There was also some intraneural scarring. This was relieved and hopefully there will be some improvement, although it is not going to be immediate." Such a report is consistent with ongoing treatment and development of a condition. On the basis of this report, I would hold that permanence had not been achieved even by 29 August 1990.

25. It is not necessary to determine the exact date of the "occurrence" of Mrs Bloomfield's permanent impairment. It is conceded that she is presently permanently impaired. I am satisfied that the occurrence was after 1 December 1988. She is therefore entitled to succeed in her claim under s 24 of the 1988 Act. She is also entitled to compensation for non-economic loss under the provisions of s 27 of the 1988 Act.

26. A number of attempts have been made to assess the degree of her incapacity. The medical panel assessed her whole person impairment at 10 per cent. However, they appeared to have focussed only on the impairment of her left side. Drs Read and Champion focussing on her right side fixed the degree of impairment at 20 per cent. Dr Dowda judged that a figure of 16 per cent would be appropriate. It is obviously necessary that all assessments of the degree of impairment be based upon the same premises. There is not sufficient evidence before me to enable me to resolve that question.

27. I therefore propose to set aside the decision under review and to remit the matter back to the respondent with a direction that an assessment be made of the degree of the applicant's permanent incapacity for the purposes of ss 24 and 27 of the 1988 Act and that she be paid compensation in accordance with those sections.