Simpson and Comcare [2003] AATA 1168 (20 November 2003)

Last Updated: 21 November 2003

DECISION AND REASONS FOR DECISION [2003] AATA 1168

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2003/540

GENERAL ADMINISTRATIVE DIVISION

Re: TODD SIMPSON

Applicant

And: COMCARE

Respondent

DECISION

Tribunal: G.D. Friedman, Member

Date: 20 November 2003

Place: Melbourne

Decision: The Tribunal affirms the decision under review.

(sgd) G.D. Friedman

MemberCOMPENSATION - degree of permanent impairment - physical injuries - post-traumatic stress disorder - whether applicant entitled to further compensation

Safety, Rehabilitation and Compensation Act 1988 ss4, 24, 24(2), 25, 25(4), 27, 28(1)

Comcare v Roser (2003) 36 AAR 534

Comcare v Mihajlovic (2000) 97 FCR 304

Re Laven and Comcare [2003] AATA 821

REASONS FOR DECISION

20 November 2003 G.D. Friedman, Member

1. This is an application by Todd Simpson (the applicant) for review of a decision of Comcare (the respondent) dated 12 May 2003. The decision affirmed a determination, made on 9 April 2003, that denied liability for permanent impairment for the applicant's accepted condition, which resulted from injuries suffered by the applicant on 19 February 1993.

2. At the hearing of this matter on 7 November 2003, Mr J. Ferwerda of counsel represented the applicant, and Ms A. McMahon of counsel represented the respondent.

3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T54).

BACKGROUND

4. The applicant was born on 4 April 1970. From 1 June 1987 to 18 December 1994 he served as a member of the Royal Australian Navy.

5. On 20 February 1993 the applicant was injured while on a tour of duty in Auckland, New Zealand (the1993 incident). He claimed compensation under the Safety Rehabilitation and Compensation Act 1988 (the Act) in respect of a

BLOWOUT FRACTURE RIGHT ORBIT

FRACTURED RIGHT ZYGOMA

PAINFUL LEFT SHOULDER.

6. The applicant first sought medical treatment for psychological problems arising out of the 1993 incident while stationed in Darwin in mid-1994.

7. Mr E. Milliken, psychologist, and Dr D. Wallace, psychiatrist diagnosed the applicant as suffering from post-traumatic stress disorder (PTSD) arising out of the 1993 incident.

8. On 2 May 1995 the respondent accepted liability for complex comminuted fracture of the right malar with extensive blowout of the orbital floor and small effusion in the right shoulder joint (the accepted physical condition) with the date of injury being 20 February 1993.

9. On 10 July 1995 the applicant made a claim for permanent impairment in respect of double vision right eye (looking down), left shoulder pain/some sinus pain, occasional right cheek pain (especially when flying).. On 28 August 1995 the applicant made a claim for permanent impairment for mild [left] rotator cuff tendonitis and chronic muscular ligamentous sprain. The applicant also made a claim for diplopia in extreme down gaze, numbness of right cheek and upper gum.

10. On 13 December 1995 Dr G. Long, consultant occupational physician, assessed the applicant as being permanently impaired at 10% of the whole person under the Comcare Guide to the assessment of the degree of permanent impairment (the Guide) for physical injuries arising from the 1993 incident. On 22 May 1996 the respondent determined that the applicant was entitled to 10% under s24 of the Act.

11. On 26 July 2002 Dr M. Ewer, psychiatrist, examined the applicant and diagnosed chronic PTSD. He rated the condition as temporary, given that the applicant had not received psychiatric treatment. On 26 August 2002 the applicant submitted a claim for compensation in respect of the PTSD as a result of the 1993 incident. On 7 November 2002 the respondent made a determination to extend the admission of liability to include PTSD.

12. The applicant then claimed for permanent impairment for psychiatric impairment.

13. On 3 March 2003 Dr Long assessed the applicant as having a permanent psychiatric impairment of 10% of the whole person as a result of PTSD, under Table 5.1 of the Guide.

14. On 9 April 2003 the respondent made a determination denying permanent impairment compensation in respect of the PTSD. This determination was made on the basis that the combination of the percentages, under Table 14.1 of the Guide, of whole person impairment arising out of the applicant's physical and psychological injuries as a result of the 1993 incident meant that the applicant suffered a  total whole person permanent impairment of 19%. As this represented an increase  of only 9% of whole person impairment since the determination made on 22 May 1996, the applicant had no further entitlement to compensation for permanent impairment as a result of the application of s25(4) of the Act.

15. On 12 May 2003 a reviewable decision affirmed the determination.

EVIDENCE

16. In a report dated 11 July 1994 (T22) to the Senior Medical Officer of HMAS Coonawarra, Mr Milliken provided an assessment of the applicant's psychological condition in the context of being a victim in an assault crime in New Zealand and concluded that the applicant was psychologically unfit to proceed at this time anywhere outside of Australia, least of all to New Zealand.. In an accompanying confidential memorandum of the same date Mr Milliken said that the applicant is experiencing disabling post-traumatic stress arising from an incident in Auckland in February 1993.

17. In a written report dated 25 March 1996 (T33), Dr Long noted that the applicant suffered facial fractures with persistent mild visual impairment and left shoulder and upper back/neck pain as a result of an incident in Auckland in February 1993. He assessed the applicant's impairment at 10% of the whole person (eye condition 5%, neck impairment 5% and no significant impairment of the left shoulder).

18. In a further written report dated 3 March 2003 (T49), Dr Long assessed the applicant as having a permanent psychiatric impairment of 10% of the whole person as a result of PTSD; and said that the earlier assessment of whole person impairment at 10% for the physical injuries remained unchanged.

CONSIDERATION OF THE ISSUES

19. Section 4 of the Safety Rehabilitation and Compensation Act 1988 (the Act) provides that an injury is permanent if it is likely to continue indefinitely.

20. Section 24(2) provides:

(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.

21. Section 25(4) provides:

(4) Where Comcare has made a final assessment of the degree of permanent impairment of an employee (other than a hearing loss), no further amounts of compensation shall be payable to the employee in respect of a subsequent increase in the degree of impairment, unless the increase is 10% or more.

22. Mr Ferwerda referred to the beneficial nature of the legislation and stated that the object of the whole person impairment provisions of the Act is to enable a person who has suffered impairment to receive a fair compensation. He stated that Mr Milliken identified the symptoms of PTSD in 1994, so the condition should be seen as distinct from the injuries incurred in the 1993 incident. He submitted that the respondent had failed or refused to determine the applicant's entitlement to a lump sum payment for a condition that is separate and distinct from the applicant's physical injuries, for which the respondent had accepted liability and paid compensation. Mr Ferwerda referred to Comcare v Roser (2003) 36 AAR 534 (at para 37) in which Spender J concluded that:

In the view I take of the matter, if there are two incidents, each involving injury or injuries, there are discrete liabilities for each injury, the extent of which has to be determined discretely. A single injury may result in multiple impairments (which then have to be "combined" under Table 14.1), and multiple injuries may result in a single impairment. ...

23. Mr Ferwerda submitted that the respondent incorrectly relied on s25(4) of the Act to deny the applicant a separate payment under that section, because the assessment of the applicant's degree of permanent impairment did not take into account the psychological condition for which the respondent had not accepted liability at the time of making the determination.

24. As an alternative argument, Mr Ferwerda submitted that PTSD has been assessed as an impairment of 10% of the whole person, and that, when combined with the previous whole person impairment for the physical condition, would entitle the applicant to a lump sum whole person impairment, plus payment for non-economic loss under s24 and s27 of the Act. In support of this view he stated that the determination of 22 May 1996 was not final because it did not take PTSD into account, and he urged the Tribunal to remit the matter to the respondent for re-determination of the applicant's whole person impairment, including PTSD. He said that PTSD is a condition in its own right, and is not merely a consequence of the physical injuries suffered by the applicant in the 1993 incident.

25. Ms McMahon submitted that the determination made by the respondent on 22 May 1996 was a final determination that the accepted physical injury suffered by the applicant resulted in a whole person impairment of 10%. She said that, under s25(4) of the Act, the applicant must demonstrate that his whole person impairment increased by 10% or more in order to establish an entitlement to further compensation under s24 and s27 of the Act. She said that the applicant could not demonstrate an increase greater than 9% in the aggregate.

26. Ms McMahon noted that the physical injuries occurred in the 1993 incident, and that the clinical notes, taken while the applicant was in hospital immediately afterwards (T8, p20), show that the applicant was a bit depressed.. She said that, in 1994, Mr Milliken assessed the applicant as experiencing post-traumatic stress symptoms following the 1993 incident and reported that the applicant considers that the incident with its physical and psychological after effects have "turned his life upside down" (T22). Ms McMahon submitted that PTSD arose almost immediately after the 1993 incident and could not be regarded as a separate injury or condition.

27. In respect of whole person impairment, Ms McMahon submitted that, in Comcare v Mihajlovic (2000) 97 FCR 304, the Court found that consideration must be given to the person as a whole, and that the combined values chart in Table 14.1 of the Guide should be used for multiple impairments. She stated that whole person  impairment for PTSD was not appropriate because the determination of 22 May 1996 was final for the purposes of s25(4) of the Act, and Table 14.1 was not appropriate in this case because the 1993 incident and PTSD represented the one event. She submitted that, in any event, the increase in whole person impairment was calculated correctly at 19%, giving an increase of 9%. She noted that the applicant might be entitled to further compensation in the future, depending on any worsening of PTSD.

28. The Tribunal reached its decision taking into account the written evidence and the submissions made at the hearing. It was not disputed that the applicant has physical injuries arising out of the 1993 incident and has been diagnosed with PTSD. The Tribunal accepts the medical evidence that the applicant's PTSD is long term, has stabilised, and that he will continue to require medication. The Tribunal is satisfied that the condition is permanent within the meaning of s24(2) of the Act. The Tribunal notes the evidence of Dr Ewer that, in 2002, as the applicant had not received psychiatric treatment, the condition could not be determined as permanent.

29. On the question of whether the respondent's determination of 22 May 1996 was a final decision or an interim decision, the Tribunal notes that under Division 4 of Part II of the Act (Injuries resulting in impairment), while compensation payments may be paid on an interim basis under s25, s24 determinations are final. Therefore, the Tribunal finds that the respondent's determination of 22 May 1996 was a final assessment of the applicant's degree of permanent impairment.

30. On the question of whether the physical injury and PTSD were separate conditions, the Tribunal accepts Ms McMahon's submission that the evidence demonstrates that symptoms of a psychological or psychiatric condition arose shortly after the 1993 incident. Therefore, PTSD could not be regarded as a separate injury or condition. Section 25(4) makes clear that when a final assessment of the degree of permanent impairment has been made, no further amounts of compensation are payable in respect of a subsequent increase in the degree of impairment unless the increase is 10% or more. In Mihajlovic, the Federal Court said that the emphasis in the Guide is on the percentage of whole person impairment, while s28(1) of the Act refers to the degree of permanent impairment of an employee.. The Court stated that, where there are multiple impairments arising from the loss, the loss of the use, or the damage or malfunction of different parts of the body, bodily system or function, the first step is to calculate the percentage degree of impairment of each loss, damage or malfunction. The second step is to determine the combined percentage of impairment of the whole person under Table 14.1, to determine in turn the compensation payable to the employee under s24 of the Act.

31. As the Tribunal said in Re Laven and Comcare [2003] AATA 821, the reasonable and appropriate Table to assess the applicant's impairment is Table 14.1. The Tribunal referred to the definition of double assessment in the Introduction to the Guide:

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).

32. In Roser, Spender J said that, where more than one injury is occasioned by an incident, there are separate and discrete liabilities in respect of each injury. At paragraph 42, he stated:

...The compensation for each injury is to be assessed by reference to the degree of impairment to the whole body that flows from each injury, and that degree of impairment may require consideration of the combined effect of separate impairments flowing from the same injury.

33. In Re Laven the Tribunal said (at paras 39 and 40):

39. In the Tribunal's opinion, the decision in Mihajlovic (supra) is to be preferred to the extent that there is any inconsistency. The emphasis in the Guide is on the percentage whole person impairment and follows the reference in s28(1) to "the degree of permanent impairment of an employee". As Finn J states, where there are multiple impairments arising from "the loss, the loss of the use, or the damage or malfunction" of different parts of the body, bodily system or function, the first step is to calculate the percentage degree of impairment of each loss, damage or malfunction; the second step is to determine the combined percentage of whole person impairment pursuant to Table 14.1 for the purpose of determining the compensation payable to the employee pursuant to s24.

40. Thus, in the Tribunal's view, when assessing whether an employee is entitled to a further amount of compensation, it is the increase in the combined percentage of whole person impairment which must be calculated, pursuant to Table 14.1, in order to determine whether there has been an increase of 10 per cent or more as required by s25(4) for further amounts of compensation to be payable.

34. The Tribunal agrees with this approach and decides that the applicant had an impairment of 10% of the whole person as a result of the physical injury. He was then assessed as having an impairment of 10% of the whole person as a result of PTSD. Applying Table 14.1, the Tribunal finds that the combined assessment of impairment to the whole person is 19%, which is an increase of 9%. As the increase in the combined degree of permanent impairment is less than 10%, s25(4) of the Act does not permit further payment for permanent impairment.

DECISION

35. The Tribunal affirms the decision under review.

I certify that the thirty-five [35] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Member

(sgd) Catherine Thomas

Clerk

Date of hearing: 7 November 2003

Date of decision: 20 November 2003

Counsel for applicant: Mr J. Ferwerda

Solicitor for applicant: KCI Lawyers

Counsel for respondent: Ms A. McMahon

Solicitor for respondent: Sparke Helmore