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Liability

Cunning and Comcare [2009] AATA 591 (10 August 2009) Brisbane

The Applicant lodged a claim for compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the 1988 Act”) for pain in her arms that became apparent while doing typing and repetitive work in the course of her employment. The Applicant was unsure as to what caused the pain in both of her arms.

On balance of the medical evidence before it, namely that which was provided by a rheumatologist, a musculo-skeletal specialist, a consultant neurologist, and neurosurgeon, the Tribunal was not persuaded that the Applicant suffered from fibromyalgia. The Tribunal thought it appropriate to consider whether the Respondent would be liable if a diagnosis of fibromyalgia were made out. The Tribunal determined that the Respondent would not be liable having regard to the provisions of the 1988 Act, particularly given the requirements imposed by section 5B. To this end, the Tribunal was not satisfied that there was sufficient evidence to persuade it that the Applicant’s experiences at work contributed to the onset of her condition, or aggravated an underlying condition.

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Permanent impairment

Black and Comcare [2009] AATA 593

In October 2007, the Applicant made a claim for compensation under section 24 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the 1988 Act”) for permanent impairment in respect of her accepted neck and shoulder injuries, which were suffered in a motor vehicle accident in February 1995. In November and September 2008, the Respondent made determinations to the effect that it was not liable to pay compensation to the Applicant for permanent impairment in respect of her injuries.

At the outset, the Tribunal noted that it was common ground that the Applicant had a permanent impairment, for the purposes of the 1988 Act, in respect of her neck and shoulders. The issue for the Tribunal’s determination was whether the Applicant had a permanent impairment resulting from an injury, the degree of which permanent impairment was at least 10% so as to entitle her to be paid compensation in accordance with section 24 of the 1988 Act.

On the basis of the findings of a consultant rheumatologist, the Tribunal found that the degree of permanent impairment of the Applicant’s cervical spine, right shoulder, and left shoulder were 8%, 5% and less than 5%, respectively. The assessment for the cervical spine was made in accordance with Table 9.15 of the Guide to the Assessment of the Degree of Permanent Impairment (“the Comcare Guide”) and the assessments for the shoulders were based on the criteria in Tables 9.11.1a, 9.11.1b and 9.11.1c of the Comcare Guide.

The Tribunal then had to consider whether the permanent impairment of the Applicant’s cervical spine and shoulders resulted from a single “injury”, or whether each of those permanent impairments resulted from a separate and distinct “injury”, within the meaning of section 24(1) of the 1988 Act. If the former was satisfied, the Tribunal noted it would be appropriate to combine the abovementioned values for those impairments using the Combined Values Chart in the Comare Guide which, in the Applicant’s case, would produce a whole person impairment of at least 15%.

The Tribunal noted that the question of whether the Applicant’s impairments resulted from a single injury or separate and distinct injuries could only be answered by reference to the medical evidence before it. On the basis of the whole of the evidence before it, the Tribunal was satisfied that each of the Applicant’s relevant permanent impairments resulted from a separate and distinct “injury” within the meaning of section 24 of the 1988 Act. It followed that the Tribunal regarded the present case as one involving the sustaining of separate and distinct injuries, in a single incident, each of which resulted in a permanent impairment.

The Tribunal noted the question also arose as to whether it was appropriate to add the values of the Applicant’s permanent impairments in order to determine her “whole person” permanent impairment for the purposes of section 24 of the 1988 Act. In this regard, the Tribunal noted that the case of Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535 did not mandate the adding together of values for different “whole person impairments” resulting from two or more injuries in order to assess the total “whole person impairment” for the purpose of determining whether compensation was payable under section 24 of the 1988 Act.

The Tribunal determined that the degree of the Applicant’s permanent impairment resulting from each injury was less than 10%, and accordingly, compensation was not payable to her pursuant to section 24 of the 1988 Act.

The Tribunal affirmed the decision under review.

Hensley and Comcare [2009] AATA 590 (7 August 2009) Canberra

In April 2007, the Applicant applied for permanent compensation under section 24 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in relation to a bilateral lumbar sprain injury and left hip and thigh sprain injury sustained on 1 September 2005. The Respondent rejected this claim.

At issue in this hearing was whether the Applicant suffered an injury to her lower back and/or an injury to her left hip and thigh which resulted in impairment, whether any of those impairments were impairment, and the degree of permanent impairment in each case.

Lower back injury

On the basis of the evidence before it, the Tribunal was satisfied that the Applicant suffered an injury to her lower back, which had resulted in permanent impairment. The Tribunal took into account that the Applicant had suffered pain in her lower back continuously since was injury in 2005, it was unlikely that her condition would improve, and that the Applicant had undertaken all reasonable rehabilitative treatment.

In light of the evidence provided by the Applicant and an occupational physician, the Tribunal was satisfied that the Applicant had “dermatomal pain” and therefore a significant sign of radiculopathy, as well as sensory loss in her buttock and loss of muscle strength in her left hip. Given that each of these conditions is included as a significant sign of radiculopathy in accordance with Table 9.17 of the Guide to the Assessment of the Degree of Permanent Impairment (“the Comcare Guide”), the Tribunal was satisfied that the Applicant had suffered a 13% whole person impairment as a result of the bilateral lumbar sprain suffered by her on September 2005.

Left hip and thigh injury

On the basis of the evidence before it, the Tribunal was satisfied that the Applicant suffered an injury to her left hip and thigh, which had resulted in permanent impairment.

In light of the opinion provided by the Applicant, an occupational physician and an orthopaedic surgeon, the Tribunal was satisfied that the Applicant had continued to suffer pain in her hip since September 2005 and it was unlikely that this condition would improve in view of the time which had elapsed since the injury. The Tribunal was also satisfied that the Applicant had undertaken all reasonable rehabilitative treatment for the impairment which led to a finding that the impairment was permanent.

In terms of the degree of permanent impairment resulting from the Applicant’s left hip and thigh injury, the Tribunal did not accept that the Applicant suffered from a restriction of movement, as described by an occupational physician, on a continuing basis. The Tribunal was not satisfied that the Applicant met any of the requirements under Table 9.4 of the Comcare Guide which would give her a 10% permanent impairment. The Tribunal noted it was not necessary to consider whether there was a 2% or 5% impairment as no question of the application of the Combined Values Chart arose.

The Tribunal set aside the decision under review and the matter was remitted for reconsideration in accordance with the following directions:

• that a 10% permanent impairment has resulted from the bilateral lumbar sprain injury suffered by the Applicant on 1 September 2005;
• that a less than 10% permanent impairment has resulted from the sprain of specified sites of the left hip and thigh suffered by the Applicant on 1 September 2005.

Medical expenses

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Aids and appliances

Household assistance