In Josephine Black and Comcare [2009] AATA 593, the Administrative Appeals Tribunal considered whether impairments in relation to an employee's neck and shoulders could be combined on the basis that they resulted from one injury.
Background
Ms Black was employed by Centrelink as a Mobile Review Team Field Advisor. On 6 February 1995, she was involved in a motor vehicle accident while at work.
Comcare accepted liability for injuries to Ms Black's neck, right shoulder and left shoulder.
On 25 October 2007, Ms Black made a claim for compensation for permanent impairment resulting from the injuries.
Comcare denied liability to pay compensation for permanent impairment by a determination dated 26 November 2009, which was affirmed by a reviewable decision dated 13 January 2009.
The issues before the Administrative Appeals Tribunal
The primary issue before the AAT at the 13 January 2009 review decision was whether Comcare was liable to pay permanent impairment compensation, and whether the degree of permanent impairment suffered by Ms Black met the 10% threshold under section 24(7) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).
A particular issue arose before the AAT, as liability had been accepted for three separate injuries, each resulting in a permanent impairment. Consequently, the critical factor in determining whether Comcare was liable under section 24 of the SRC Act was the characterisation of the impairment arising from each injury, particularly in light of the decision in Canute v Comcare (2006) 226 CLR 535 (Canute).
The AAT's findings
The assessments of permanent impairment
The AAT noted that the degree of impairment for Ms Black's neck and right shoulder injuries was not in dispute, and the AAT accepted the findings of Dr Hayes that Ms Black suffered 8% whole person impairment for her neck injury and 5% whole person impairment due to her right shoulder injury.
Although Dr Hayes provided an assessment of impairment for Ms Black's left shoulder injury, the AAT found, on the basis of the doctor's clinical findings, that she suffered at least 2%, but not more than 5%, whole person impairment.
The total assessment of permanent impairment
Although none of the impairments resulting from each injury reached the 10% threshold, Ms Black sought to argue that the impairments resulted from a single injury. As such, it was argued that the impairments should be combined under the Combined Values Chart in Appendix 1 of Part 1 of the Second Edition of the Comcare Guide to the Assessment of the Degree of Permanent Impairment (Guide), and that Ms Black therefore suffered 15% whole person impairment.
Comcare maintained that each injury was separate and distinct, and therefore the impairments should not be combined. As each injury alone did not meet the 10% threshold, Comcare contended that Ms Black was not entitled to any compensation under sections 24 and 27 of the SRC Act.
The AAT observed that the question of whether the impairment resulted from a single injury or from separate and distinct injuries was a medical question.
Having considered the medical evidence, the AAT was satisfied that Ms Black suffered multiple injuries, each resulting in impairment, rather than a single injury that resulted in multiple impairments. Accordingly, the AAT did not consider that the impairments should be combined.
Is it appropriate to add the scores/values of the employee's impairments?
Although the AAT accepted Comcare's contention that the Combined Values Chart in Appendix 1 of the Guide did not apply, it went on to consider whether it was nonetheless appropriate to add the scores/values of the various impairments suffered by the employee to determine the 'whole person' impairment suffered.
In considering this question, the AAT had regard to the following passage in the Principles of Assessment in Part 1 of the Guide:
The AAT also considered the approach taken in Canute, in which the High Court highlighted the pivotal importance of the concept of 'an injury', and the requirement that Comcare determine 'the degree of permanent impairment of the employee resulting from an injury'. The AAT also noted that recourse to the Guide was only necessary once the key statutory criterion of 'an injury' (which has resulted in at least one permanent impairment) has been fulfilled.
The AAT observed that, whilst the above passage from the Guide did not appear in the First Edition of the Guide, which was considered in Canute, it was nonetheless to be read in conformity with the High Court's approach in that case. Read and understood in that way, the AAT found that the passage did not mandate the adding together of scores/values for different impairments resulting from two or more injuries in order to assess the total 'whole person' impairment for the purpose of determining whether compensation is payable under section 24 of the SRC Act.
The AAT's conclusion
The AAT concluded that Ms Black was not entitled to compensation for permanent impairment resulting from her accepted injuries, as she did not meet the 10% threshold under section 24(7) of the SRC Act.
The decision reinforces that impairments may not be combined where they do not result from the same injury. The AAT has also confirmed that the 'whole person' approach adopted in the Guide is relevant only once a determination is made regarding the degree of permanent impairment suffered as a result of an injury. However, that approach does not involve combining different impairments from two or more injuries.
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