Australia: A Tale Of Two Injuries

Last Updated: 17 November 2008
Article by Julian Pinder

In two recent cases, the Administrative Appeals Tribunal was called upon to determine whether or not two conditions in respect of the same physical organ or structure arising from a single work-related incident constituted separate injuries within the meaning of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).

This distinction is significant because following the High Court's decision in Canute v Comcare (2006) 226 CLR 535, impairments flowing from separate injuries cannot be combined for the purposes of meeting the 10% whole person impairment threshold imposed by subsection 24(7) of the SRC Act, for permanent impairment compensation to be payable.


The background

Mr Dib was involved in a work-related motor vehicle accident from which he suffered a number of injuries.

Comcare accepted liability to pay compensation for neck sprain, sprain of unspecified site of shoulder and upper arm (right), contusion of chest wall (left) and lumbar sprain, pursuant to section 14 of the SRC Act. Comcare subsequently varied the determination by amending the primary compensable condition from 'neck sprain' to 'aggravation of cervical spondylosis (left)'.

Mr Dib was examined by an orthopaedic surgeon, Dr Wallace, who diagnosed musculoligamentous strain of the cervical spine, aggravation of pre-existing cervical spondylosis, musculoligamentous strain of the lumbar spine, and aggravation of pre-existing lumbar spondylosis. The doctor assessed 8% whole person impairment as a result of the cervical spine injury pursuant to Table 9.15 and 8% whole person impairment for the lumbar sprain injury pursuant to Table 9.17 of the Guide to the Assessment of the Degree of Permanent Impairment (the Guide). Dr Wallace combined these assessments under the Guide to arrive at 15% whole person impairment.

Comcare denied liability to pay compensation for permanent impairment on the basis that Mr Dib had suffered two separate injuries (one to his neck and one to his back) and that following the decision in Canute impairments flowing from separate injuries could not be combined, and that neither impairment by itself reached the 10% threshold set by subsection 24(7) of the SRC Act. Comcare affirmed the determination on reconsideration, and Mr Dib therefore applied to the Tribunal for review of the decision.

The issue

The main issue concerned the proper definition of 'injury' pursuant to the SRC Act, and consequently whether Mr Dib sustained one injury (in which case the two impairments could be combined), or two separate injuries (in which case the impairments could not be combined).

The decision

The Tribunal had regard to the medical evidence of Dr Wallace, as well as that of Dr Bornstein, Comcare's expert medical witness. It was noted that Dr Bornstein agreed with Dr Wallace's assessment that Mr Dib suffered from 8% permanent impairment of his cervical spine pursuant to Table 9.15 of the Guide, and 8% permanent impairment of his lumbar spine pursuant to Table 9.17 of the Guide. However, unlike Dr Wallace, Dr Bornstein considered the impairments to be entirely constitutional in origin.

The Tribunal accepted that the medical evidence as a whole suggested that Mr Dib suffered from two preexisting conditions, being degenerative spondylosis of both the cervical spine and the lumbar spine.

The Tribunal accepted that 'a single incident of trauma caused harm/damage and sudden and identifiable physiological change to the nominated areas of [Mr Dibs's] body'. However, the Tribunal did not accept that this trauma necessarily gave rise to a single injury.

Rather, the Tribunal found that based on the medical evidence it was clear that a single incident involving trauma 'caused worsening of two separate and discrete preexisting conditions' and that, therefore, there were two separate injuries 'namely one to the cervical spine area and one to the lumbar spine region'.

The Tribunal, standing in the shoes of the administrative decision maker, was therefore unable to combine the two assessments in respect of permanent impairment, and concluded that compensation was not payable to Mr Dib.


The background

Mr Nolan was engaged in an Army Reserve training exercise in September 1998, when an explosive charge detonated in close proximity to the right side of his head. In January 2006, Mr Nolan lodged a claim for compensation for hearing loss with the Military Rehabilitation and Compensation Commission (Commission) and liability was accepted for 'bilateral sensorineural hearing loss with tinnitus' in accordance with the SRC Act.

Mr Nolan lodged a claim for compensation for permanent impairment on the basis of his hearing loss condition. By its determination, the Commission found that there was no liability to pay compensation for permanent impairment. This determination was affirmed on reconsideration and Mr Nolan therefore applied to the Tribunal for review of the decision.

The issues

One of the issues to be determined by the Tribunal was whether or not Mr Nolan's hearing loss and tinnitus constituted separate injuries within the meaning of the SRC Act.

The Commission's position was that the tinnitus and hearing loss constituted separate injuries, giving rise to separate impairments that could not be combined, having regard to the decision in Canute. The argument for Mr Nolan was that there was one injury which had two functional impairments - hearing loss and tinnitus.

The decision

It was accepted that given the date of the incident the applicable version of the Guide was the First Edition, and that subsection 24(7) of the SRC Act applied as it stood prior to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2001 (the Amendment Act). Prior to the Amendment Act, section 24(7) imposed a 10% whole person impairment threshold in respect of all injuries. The Amendment Act lowered that threshold with respect to binaural hearing loss to 5%.

It was accepted by the parties that Mr Nolan suffered from 5% whole person impairment with respect to tinnitus, which did not by itself meet the 10% threshold in place at the time. Although the parties did not agree as to the level of binaural hearing loss caused by the incident, the Tribunal found that there was 13.4% binaural hearing loss caused by the work-related incident, which converted to a whole person impairment of 7% under the Guide.

In reaching its decision as to whether or not the hearing loss and tinnitus constituted separate injuries, the Tribunal had regard to the evidence of Dr Scoppa that the explosion created an acoustic trauma which caused the ear drum to move forcibly into the inner ear, resulting in permanent damage to the hair cells. This single trauma was said to have produced two symptoms: hearing loss and tinnitus.

The Tribunal, therefore, did not find that either tinnitus or hearing loss could be characterised as an injury. Rather, the injury was the permanent damage to the hair cells, which in turn caused the hearing loss and tinnitus.

Since the tinnitus and hearing loss were impairments flowing from a single injury, the Tribunal combined the two impairment assessments under the Guide, and found that Mr Nolan had suffered 12% whole person impairment, which exceeded the threshold. As such, Mr Nolan was entitled to compensation.


Dib makes it clear that it will not be sufficient for multiple sites of damage to occur to the same physical structure (such as the spine) in order for that damage to be considered to be part of the same injury. However, in that case it was considered significant that the trauma aggravated two separate pre-existing conditions. It is likely but not certain that the same outcome would have been reached had there been no pre-existing injuries, and the Tribunal had essentially been dealing with two new spinal injuries. It is also open as to what point two distinct sites of damage are sufficiently close that they would be treated as one injury (such as damage to separate bones in the one arm or leg, or multiple fractures to the one bone).

Nolan indicates that what may superficially appear to be an injury may instead be characterised as the result or symptom of the actual injury, and that consideration must be given to the mechanism of the trauma and the nature of its effects. It was relevant in that case that the hearing loss and the tinnitus shared the common mechanism of damage to the hair cells of the ear.

The different outcomes reached in these cases highlight the fact that properly identifying the injury or injuries in question is an important but not always a straightforward process. Obviously, primacy will be given to the medical evidence and its characterisation of the nature of the injury or injuries in question.

Phillips Fox has changed its name to DLA Phillips Fox because the firm entered into an exclusive alliance with DLA Piper, one of the largest legal services organisations in the world. We will retain our offices in every major commercial centre in Australia and New Zealand, with no operational change to your relationship with the firm. DLA Phillips Fox can now take your business one step further − by connecting you to a global network of legal experience, talent and knowledge.

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this publication.

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