Australian Telecommunication Commission v Glennie, E.A

[1982] FCA 63

Re: THE AUSTRALIAN TELECOMMUNICATIONS COMMISSION
And: EDWARD ANTHONY GLENNIE
No. G67 of 1981
Workers' Compensation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
McGregor J.

CATCHWORDS

Workers Compensation - Determination by Commissioner for Commonwealth Employees' Compensation - Variation thereof - Reference to Tribunal of all matters or questions to which Determination related - Alleged error in determination that applicant contracted disease to which employment contributed - Determination set aside by Tribunal upon ground of failure to determine degree of incapacity - Whether Tribunal had power to set aside determination or to remit.

Compensation (Commonwealth Government Employees) Act 1971 ss. 27, 29, 63, 84.

HEARING

SYDNEY

#DATE 6:5:1982

ORDER

1. The appeal is dismissed.

2. The applicant is to pay the respondent's costs including reserved costs.

JUDGE1

THE AUSTRALIAN TELECOMMUNICATIONS COMMISSION (Commission) appeals from the whole of a decision of the Commonwealth Employees' Compensation Tribunal (Tribunal) given on 22 May 1981 in proceedings in which EDWARD ANTHONY GLENNIE (Glennie) as an employee of the Commission, had sought compensation pursuant to the provisions of s..27 and 29 of the Compensation (Commonwealth Government Employees) Act 1971 (the Act). In the events outlined below the Tribunal had set aside a determination of 8 October 1980 made pursuant to s.20 by a Commissioner for Commonwealth Employees' Compensation (Commissioner) and remitted the matter to the Commissioner with directions that he determine matters arising under s.29(2) of the Act with a view to establishing whether on his determination compensation was actually payable and, if so, for which of the possible results set out in that section.

The matter arises in this way.

On 9 February 1979, Glennie lodged a claim for compensation in respect of "spur formation on left foot" which he attributed to operating a "Ditchwitch" ditching machine. His general medical practitioner supported his claim but the Commonwealth Medical Officer recommended that an orthopaedic specialist be requested to examine Glennie and provide an opinion.

Thereupon, Dr. E. Hedberg examined Glennie on 13 June 1979 and his opinion was that he was suffering from bilateral calcanel spurs and a left plantar fascitis. The condition, according to Dr. Hedberg, had not been caused or aggravated by employment but was due to the natural progression of pre-existing condition.

In the light of that opinion the Delegate of the Commissioner for Employees' Compensation made the following Determination dated 31 October 1979, omitting formal parts -

"In the matter of the claim of Edward Anthony GLENNIS for compensation in respect of a spur formation on his left foot. DETERMINATION

1. The evidence before me, including specialist medical opinion, indicates that the bilateral calcanel spurs with a left plantar fascitis suffered by the said Edward Anthony Glennie is the result of the natural progression of a pre-existing or underlying condition.

2. NOW THEREFORE, in pursuance of the provisions of the Compensation (Commonwealth Government Employees) Act 1971, as amended, I hereby determine:-

(a) the condition of bilateral calcanel spurs with a left plantar fascitis suffered by the said Edward Anthony Glennie is not the result of personal injury arising out of or in the course of his employment;

(b) the condition of bilateral calcanel spurs with a left plantar fascitis is not the result of the contraction of a disease, or the aggravation, acceleration or recurrence of a disease, to which his employment was a contributing factor;

(c) the claim for compensation of Edward Anthony Glennie of 9 February 1979 is therefore disallowed."

On 23 November 1979, Glennie made a request for reconsideration of this determination. He was then advised that it might be to his advantage to submit specialist medical opinion refuting the report of Dr. Hedberg. Thereupon he obtained a report dated 4 April 1980 from a Dr. Isaacs, an orthopaedic surgeon, which stated -

"I feel that Mr. Glennie is suffering from left plantar fasciitis. This could have started as a result of using the ditcher or aggravated by the same machine."

In a further report dated 27 July 1980 when asked to expand "could", he wrote -

"I feel that Mr. Glennie is suffering from left plantar fasciitis. This condition in all probability was caused by using a ditcher or was aggravated by the same machine."

Following Dr. Isaac's report, the Commissioner amended the earlier determination of 31 October 1979 and made a determination dated 8 October 1980 in the following terms -

"In the matter of the claim of Edward Anthony GLENNIE for compensation in respect of spur formation on his left foot. DETERMINATION In pursuance of the provisions of the Compensation (Commonwealth Government Employees) Act 1971, as amended, including section 27, 29 and 20(4) of that Act and further to determinations previously made in this matter, I hereby determine:-

(a) the determination of 31 October 1979 is amended by deleting the words 'with plantar fasciitis' wherever appearing.

(b) the said Edward Anthony Glennie contracted a disease namely, left plantar fasciitis to which his employment was a contributing factor (sub-section 29(1)) and that disease is deemed to be a personal injury to the said Edward Anthony Glennie arising out of his employment (sub-section 29(2));

(c) in accordance with the provisions of sub-section 27(1) the Australian Telecommunications Commission is liable to pay compensation in respect of the said personal injury."

On 4 February 1981, the Commission, pursuant to s.63(1)(a) of the Act, requested the Commissioner to refer to a Compensation Tribunal for reconsideration all matters or questions to which the determination of 8 October 1980 related. The grounds expressed in the request were as follows -

". . . . .

2. The grounds of the request are that the delegate erred in determining that Edward Anthony GLENNIE contracted a disease, namely left plantar fasciitis, to which his employment was a contributing factor."

When the matter first came before it on 29 April 1981 the Tribunal (Mr. J.O. Ballard) referred to certain "jurisdictional problems", citing Thompson v. Armstrong and Royse Proprietary Limited (1950) 81 C.L.R. 585 at p.598 and heard arguments (as is recorded in the decision of 22 May 1981) by Counsel for Glennie thus -

"5. Mr. Armitage's final argument was that on the face of the determination the Commissioner had not directed himself to a matter he was required to direct himself to, that is to say, whether incapacity or any of the other matters set out in sub-s.(2) of s.29 applied. Accordingly, the Tribunal could not hear evidence on its merits because it did not know the Commissioner's view on that issue. Mr. Armitage further argued that Telecom's request for reference of "all matters or questions to which the determination relates" must extend to whether sub-s.29(2) brought about resulting incapacity. Accordingly, Mr. Armitage asked that the matter be remitted to the Commissioner under sub-para. 84(1)(c)(ii) with the direction that the Commissioner determine whether the respondent had incapacity."

and by Counsel for the Commission thus -

"Mr. Levine argued that sub-s.20(1) did not determine the manner by which the Commissioner should perform his functions; certainly he was able to determine the compensation claim to finality; he had no such obligation. The fact that the Commissioner had only determined one element of the claim did not make the determination invalid. Even if para.(c) of the determination was ineffective without a finding as to sub-s.29(2) this did not vitiate the whole determination. The determination did not relate to the respondent's incapacity to work and it did not need to do so. There was a justiciable issue before the Tribunal and the Tribunal was required to reconsider that matter and no other. As to Mr. Armitage's submission on remission Mr. Levine argued that the Tribunal only had jurisdiction to remit the matter for redetermination in the circumstances in which it could make a new determination."

The Tribunal recorded its view of the situation which had arisen thus -

"7. For a person to be entitled to compensation under s.29 he must satisfy the requirement of sub-s.(2) as well as sub-s.(1). On the papers before the Tribunal a determination has been made which determines the matters to which sub-s.(1) refers, makes no reference to the matters to which sub-s.(2) refers and then declares that compensation is payable. It leaves unclear whether the last paragraph is to be disregarded in the sense that the respondent would receive no compensation unless he subsequently satisfies the Commissioner or his delegate that sub-s.(2) has been complied with or whether one is to infer compliance with sub-s.(2) from the provisions of para.(c) of the determination.

8. If it is to be read as the first alternative, then I am of the view that this course is not open to the Commissioner in equity and good conscience under para.20(2)(a). The function of the Commissioner is to determine claims for compensation made to him in accordance with Pt.1V. It would be quite inequitable and, in my view, oppressive and contrary to the pattern of the legislation for the determination to be read as determining only compliance with sub-s. (1), for that matter to be reconsidered under Pt.V with the costs that that involves and then for the Commissioner to be able to turn around to say that nevertheless compensation was not payable because he was not satisfied as to compliance with sub-s.29(2). If it be the second alternative, then a claimant is left with a determined right to compensation without a determination as to what compensation he is entitled."

On 22 May 1981 the Tribunal's finding was expressed as follows -

"10. . . . . . I accede to the view that in these circumstances I have jurisdiction to remit the matter to the Commissioner with a direction that he determine the matters arising under sub-s.29(2) with a view to establishing whether, on his determination, compensation is actually payable and for which of the possible results set out in that subsection. . . . . .

13. Accordingly, the determination in this matter of 8th October 1980 is set aside. The matter is remitted to the Commissioner with the directions set out in para.10 above."

This appeal is against the Tribunal's order setting aside the determination and remitting the matter to the Commissioner.

Before me Counsel for the Commission argued that it was quite possible for there to be made what might be described as a determination which, for reasons which could be understood in a particular case, did not then decide that although a person had suffered an injury (or a deemed injury from disease, as in this case) compensation was payable by his employer, e.g. if there was no present incapacity, and, therefore, no entitlement to a weekly or continuing award. He submitted that the Tribunal should not have remitted the matter back to the Commissioner; that it had been open to the Commissioner to determine s.29(1)(a) and (b) and it did not need to determine whether there existed incapacity; that there was a justiciable issue before the Tribunal, i.e. as set out in the grounds quoted at p.5 above with which the Tribunal should have dealt, namely, whether or not there was a disease to which employment was a contributing factor; that the matter should not have been remitted at all, but that the Tribunal should have dealt with what was before it, viz. whether disease was a contributing factor. He submitted that the Tribunal had no warrant to hold or be concerned with whether Glennie was, in fact, incapacitated by disease because that matter had not been referred to it. Thus he said that the Tribunal improperly dealt with what had been validly determined by setting it aside (see para.13 of the Tribunal's reasons), and remitting it, as was done, rather than reconsidering it. He submitted that the Tribunal's powers were restricted by s.84 i.e. to reconsider only the matter or question to which the determination related, viz. the "section 29(1) point"; that the Tribunal had failed to address itself to the only matter before it.

Respondent's Senior Counsel contended that the Commissioner had before him a single application dealing with all matters - including an absence from work for a work induced disease - and seeking the determination of the claim for compensation therefor; he was not asked to deal with this application in any piecemeal fashion but was obliged to address himself to the whole of that claim; to do otherwise would be contrary to the intent of the legislation. He submitted that the Commissioner did not deal with the application piecemeal but made a total determination of the claim before him and expressly and by implication resolved the claim in its entirety in favour of Glennie, i.e. his determination in para.(b) referred to the deeming provision in s.29(2)(f); and this is made even clearer by para.(c) of the determination. But, he argued, the determination may have been thought to contain an ambiguity. So, he submitted, that when the matter came to the Tribunal, there being conceived to be an ambiguity or a possible ambiguity, i.e. whether on the determination compensation was actually payable and, if so, for e.g. total incapacity or partial incapacity, the Tribunal had used its power under s.84(1)(c)(ii) to set aside the determination and remit the case for re-determination - which in terms was what was done. This was, he said, within the competence of the Tribunal.

It is convenient to set out the relevant terms of s.63 of the Act -

"(1) Subject to this Part, where a determination is made under this Act, a party to the determination may either -

(a) request the Commissioner in accordance with Division 3 to refer all or any of the matters or questions to which the determination relates to a Compensation Tribunal for reconsideration; or

(b) . . . . . "

(Underlining is mine)

In my view it is apparent that the Tribunal was confronted with a duty to reconsider - in terms of the request dated 4 February 1981 and s.63(1)(a) of the Act - "all" matters or questions to which the determination of 8 October 1980 referred. It is perhaps not without significance that the reference was of all matters and not a particular matter ("any") as s.63 appears to contemplate. Included in that determination was an explicit finding of an injury to which work was a contributing factor i.e. assisted by the operation of the deeming provision in s.29(2)(f) of the Act; and a finding that the Commission was liable to pay compensation in respect of that injury. There was not any indication in the determination as to what compensation he was entitled. Yet a matter which "relates to" such an injury for which, as the determination stated an employer was said to be liable to pay compensation, was a quantification of that compensation. The Tribunal then, in entering upon the task of reconsidering, as it was requested by the Commission -

". . . . . all matters or questions to which the determination relates."

had an obligation to reconsider the quantum of compensation or degree of incapacity which had apparently already been considered by the Commissioner even though the grounds of error asserted were in respect of one part of the determination only.

The determination, as I read it, did find an entitlement to compensation yet without expressing a view as to degree thereof; this being a significant omission.

In my opinion the Tribunal was entitled to proceed then pursuant to s.84(1)(c)(ii) of the Act to set the determination aside and to remit the matter as was done. I do not say that this was the only course open to the Tribunal or that no other course was open to it pursuant to s.84.

The respondent's argument as to costs, referable to s.20(5) of the Act, provides an additional reason for making the order for costs which appears below.

I make the following Orders -

The appeal is dismissed.

The applicant is to pay the respondent's costs including reserved costs.