Australian Telecommunications Commission v Colpitts
[1986] FCA 257
•30 JUNE 1986
Re: PATRICIA ANITA GERSBACH
And: AUSTRALIAN TELECOMMUNICATIONS COMMISSION
No. G187 of 1985
Administrative Law - Administrative Appeals Tribunal
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies J.
CATCHWORDS
Administrative Law - compensation - appeal from decision of Administrative Appeals Tribunal - whether open to Tribunal to conclude that employee with back injury was not "partially incapacitated for work" - meaning of "incapacity for work"
Administrative Appeals Tribunal- failure by Tribunal to identify correct decision under review - substance of true issues nonetheless considered by Tribunal - good practice for Tribunal to include material parts of determination under review and legislation in reasons for decision
Administrative Appeals Tribunal Act 1975 (Cth) s.44
Compensation (Commonwealth Government Employees) Act 1971 (Cth) - s.46
Arnotts Snack Products Pty Ltd v Yacob (1985) 57 ALR 229
HEARING
SYDNEY
#DATE 30:6:1986
ORDER
1. The appeal be allowed with costs.
2. The decision under review be set aside and the matter remitted to the Administrative Appeals Tribunal to be reheard and determined according to law.
Note : Settlement and entry of orders is dealt with in Order 36
of the Federal Court Rules.
JUDGE1
This is an appeal from a decision of the Administrative
Appeals Tribunal given on 6 June 1985. The decision in substance affirmed a determination of a delegate of the Commissioner for Employees' Compensation, though it will be necessary for me to make some comment as to the form of the decision.
The appellant, Miss P.A. Gersbach, formerly Mrs P.A. Justice, was born on 17 March 1930 and was 55 years of age at the date of the decision of the Tribunal. In about 1973, she joined the Australian Telecommunications Commission in Parkes, NSW, as a typist and continued in that employment for eight and a half years. For most of the period of her employment, she carried out other duties in addition to typing. On 4 September 1981, Miss Gersbach suffered injury to her back while she was standing on a ladder reading meters. The nature of the injury is not entirely clear, though one of the treating doctors spoke of a lumbar disc lesion. The Tribunal merely found,
"44. Whether or not the incident on a ladder on 4 September 1981 caused the applicant's 'lumbar disc lesion', or merely aggravated a pre-existing condition (compare Dr. Meachin's view with that of Dr. Ehrlich), it is clear on the evidence before the Tribunal that, contrary to the view of the personnel officer, Parkes (E.A. Renshaw, T3) the applicant's position was 'over loaded', and that, in combination, the tasks associated with and performing the mail and filing duties associated with her position as a typist, grade 1, caused the applicant to develop a back condition from which she was suffering on the date of her resignation (21 April 1982) and from which she is still suffering. ...".
On 21 April 1982, Miss Gersbach resigned from her employment. The Tribunal explained this resignation as follows :
"20. The applicant returned to work, but found that she was in extreme pain, particularly in her mail and filing duties. She said that she was forced to sell her house, because she could no longer manage the gardening. She received some relief for periods of up to 3 weeks, when Dr. Meachin gave her injections at the base of the spine. Finally, on 21 April 1982, she resigned from her employment. In particular, she found that she could no longer carry on the filing and mail duties. She continued with the same kind of work right up until the day she resigned.
.....
29. The applicant agreed that prior to her resignation in April 1982, she was able to carry out her typing duties, albeit with difficulty, because she was 'never out of pain the whole time'. The applicant agreed that she accepted the duties that she was given, and was equivocal on whether she had ever asked for light duties. She said that she spoke to Miss Renshaw about obtaining light duties, and that she understood that the doctors' reports would cover that. She agreed that she had made no formal application for light duties. Basically, the applicant's position was that the people in personnel could see the pain that she was in, and she assumed that it was appropriate to leave it to them to attend to such matters as allocation of light duties."
Liability for the injury was accepted by a determination of a delegate of the Commissioner for Employees' Compensation dated 26 November 1981. This was given further effect by a determination of 13 April 1984, which gave compensation for several periods of sick leave and for medical treatment. Paragraph 1 of the determination of 13 April 1984 read :
"(1) In accordance with the provisions of section 45(2A) of the said Act, she is entitled to the payment of compensation at the weekly rate equivalent to full sick pay, including any relevant salary allowances, in accordance with prescribed conditions relating to the payments of such allowances during periods of sick leave from 10.11.81 to 19.11.81, 1 hour on 7.12.81, 50 minutes on 9.12.81, 5.2.82 one day, 15.2.82 to 21.2.82, 3 hours 51 minutes on 3.3.82."
On 10 February 1984, a delegate of the Commissioner for Employees' Compensation had made the following determination :
"1. On the evidence before me, including specialist medical opinion, I find that on and from 22 April 1982 the personal injury sustained by the said Patricia Anita Gersbach on 4 September 1981 has not prevented her from earning in some suitable employment or business a weekly amount which is not less than her average weekly earnings before that injury, calculated in accordance with section 25 of the said Act.
2. NOW THEREFORE, in pursuance of the provisions of the Compensation (Commonwealth Government Employees) Act 1971, and further to the determinations previously made in this matter, I hereby determine that the Australian Telecommunications Commission is not liable to pay compensation in accordance with section 45 or section 46 of the said Act on and from 22 April 1982."
The decision of the Tribunal did not clearly identify which determination it was that was under review but stated :
"The decision of the Tribunal is to affirm paragraph (1) of the determination under review, insofar as it relates to the period on and from 22 April 1982 until the date of the decision."
One of the grounds of appeal is that the Tribunal made no decision as to the determination of 10 February 1984. I agree that the reasons for decision referred to the determination of 13 April 1984, though the terms of the determination were not set out therein, and that the decision appears to have been drawn with that determination in mind. The Tribunal appears to have assumed that paragraph (1) of the determination of 13 April 1984 impliedly refused compensation with respect to the period on and from 22 April 1982, a period which that paragraph did not mention. It was, however, the determination of 10 February 1984 which achieved that and, having regard to the substance of the Tribunal's decision, the Tribunal ought to have affirmed the whole of that determination.
This is a matter of technicality which could be corrected by an order of the Court if that were the only issue. It is not a matter of substance. However, I take this opportunity to observe that it is good practice for a Tribunal, when reviewing a determination of the Commissioner for Employees' Compensation, to set out in its reasons for decision the material parts of that determination. Such a practice not merely assists identification of the determination which is under review, but concentrates attention upon the precise issues which the determination raises.
It is likewise good practice to set out the material parts of the legislation which is relevant to the decision in the review. In the present case, the relevant provisions were :
"46.(1) Where an injury to an employee results in the employee being partially incapacitated for work, the succeeding provisions of this section have effect.
(2) Subject to this section, compensation is payable to the employee, during the period of the incapacity, of an amount per week equal to -
(a) the lesser of the following amounts, namely -
(i) $90 or such higher amount as is prescribed; or
(ii) the amount (if any) by which the average weekly earnings of the employee before the injury exceeds from time to time the amount per week that he is able to earn in some suitable employment or business; or
...".
Those provisions were not set out in the reasons for decision of the Tribunal and perhaps its failure to identify correctly the decision under review and its failure to specify the legislation being applied led to the ground of appeal "That the Tribunal failed to identify the true issues".
In my opinion, this ground has not been established, for in the Tribunal's reasons for decision there is set out, in the Tribunal's own words, the substance of the matters that s.46 requires to be considered. However, I should point out that it is desirable that, early in the proceedings before it in a matter such as this, the Tribunal should ensure that the parties have identified the determination that is under review and the legislative provisions that are relevant to it. Much of the evidence that was given on behalf of the applicant went to the issue of the liability of the respondent in respect of the injury, whereas it was never an issue that the injury suffered was a compensable injury. Very little evidence was directed to the extent of the incapacity of Miss Gersbach on and from 22 April 1982 and to her ability to gain remunerated employment. As Mr B.J. Skinner, counsel for the respondent, observed during argument in the appeal,
"... the applicant's case before the Tribunal was misconceived as to the correct test and, indeed, as to what was being sought by way of review, ..."
An early identification of the true issues may well have improved the quality of the hearing and avoided the necessity for the Tribunal in its reasons making comments such as "The Tribunal is left to speculate" as to relevant matters.
I turn now to the crux of the matter. The Tribunal made a specific finding that the applicant was not after her resignation on 21 April 1982 either totally or partially incapacitated for work. Although many individual grounds were argued in this appeal, the crucial point is, I think, whether or not, on the evidence before it, the Tribunal, properly instructed as to law, could have come to this conclusion.
The Tribunal's conclusion was explained in paragraph 61 of the Tribunal's reasons for decision as follows :
"60. ... She was, however, from that time (the injury) until her resignation partially incapacitated for the work which she was performing in that period within the meaning of section 46 of the Act, in the sense that she had a:
'reduced physical capacity, by reason of physical disability, for actually doing work in the labour market in which the employee was working' (Arnotts Snack Products Pty. Ltd. v. Yacob Yacob (1985) 57 ALR 229, 233).
61. From 22 April 1982, the applicant was not partially incapacitated in the labour market in which she might reasonably be expected to look for work, namely, the work of a typist, a receptionist, or other such work."
The medical evidence did not picture the appellant's injury as severe as she herself described it. However, the doctors all gave a picture of an injury of considerable significance. The Tribunal's reasons included the following passages :
"36. Dr. Meachin ... said that she might be able to type for an hour or so but after that her back ache would become worse and she could not sit down and type all day. After an hour of typing she would need some relief.
37. Dr. Meachin did not feel that any operation that might be performed on the applicant would get her back to the stage where she could perform full duties. ... The applicant had come to see Dr. Meachin on 12 September 1983. On 22 December of that year he wrote a report to her solicitors; and his opinion on 22 November 1983 was that the applicant was fit for a variety of light duties which did not involve repetitive lifting or bending.
.....
39. In cross examination, Dr. Opie agreed that disc protrusions, if the applicant has one, can cause pain. When asked whether he would expect the applicant to be able to sit for any length of time, Dr. Opie said that :
'Prolonged sitting is something that ... people with back lesions sometimes complain of in a similar way (as) they complain of prolonged standing, but if she were a solo operator in a local area she might be able to get up, relieve her back, and have a rest or walk about. I felt she could cope with that. (Question : so that you would expect her to be able to sit for at least an hour or two ... to do some typing?) I would think so, yes'.
40. Dr. Opie said that even though a disc protrustion might reabsorb, the person suffering from it was vulnerable, and :
'any strain on the lower spine such as prolonged walking or standing could reproduce the symptoms' ... just about anything can give a back pain without necessarily being a back cripple. (Question : would you expect her to be able to sit for up to 4 or 5 hours a day typing?) ... there would be many occasions on which she could probably do that without any undue miscomfort. There are other occasions when she would not be able to do it; it just depends on the state of her back at the time'.
.....
42. ... Dr. Erlich ... opined that the applicant had improved, but had not completely recovered. He said that :
'During acute periods she might have difficulty with anything, even just being upright. I think she might - depending on just the situation at that particular time. But I could see the situation where she gets bouts of sciatica with enough pain to render her unfit for any work at all'.
He said that :
'Most people who have got back problems can cope with a job like typing. They might have to get up now and then and have a bit of a stretch or just have a breather, or stretch the legs for a moment but then I think even a completely fit healthy and normal type might want to do that every now and then'.
In his report Dr. Erlich said that the applicant should 'avoid heavy lifting, frequent stooping or working in difficult or cramped postures'.
43. Dr. Michael Johnson's opinion was that :
'on her history this woman developed an acute disc prolapse in December 1981, resulting in back pain and right sciatica, symptoms of which have persisted. Her X-rays are normal and I feel that a lumbar myelogram and CT scan would be necessary for further evaluation of the disability. On her symptoms and current signs, she would be unfit to sit working as a typist let alone that sort of work that she was engaged upon when this commenced. The functional X-rays of the lumbar spine should also be arranged to see if there is any instability at this stage'."
The meaning of the concept "incapacity for work" was recently examined in Arnotts Snack Products Pty Ltd v Yacob (1985) 57 ALR 229 and it is sufficient for me to refer to that case which adequately covers the issue here under consideration, though the case discussed the New South Wales legislation. At page 234, after comprehensively discussing the principles to be applied, Mason, Wilson, Deane and Dawson JJ concluded :
"In the present case because the Commission found that the respondent's injury disabled him from performing part of his pre-injury work, it followed that he was partially incapacitated for work - he was unable to undertake clerical duties which involved climbing, lifting and bending. His incapacity for work, due to the injury, was clearly relevant to his pre-injury employment and to his ability to sell his labour on the open market. Potential employers, like the appellant, who have jobs for clerks who are required to climb, lift and bend, would not employ him."
In my opinion, the Tribunal failed to apply this concept. The Tribunal, without in fact having any evidence before it that there was work available in Parkes or in Orange, where Miss Gersbach was then living, for a 55-year old typist with a bad back, drew the conclusion that Miss Gersbach could obtain employment as a typist or perhaps a receptionist. I do not presently need to consider whether that was a finding that was open to the Tribunal. For the purpose of this judgment, I assume it to have been properly made. Yet the Tribunal was in error in concluding that, because Miss Gersbach could work as a typist or do other like work, she had no incapacity for work.
The Tribunal said,
"... On the evidence before it there is nothing to suggest that the applicant would be prevented from gaining employment as a typist by her back condition, nor from carrying out the ordinary duties of a typist, at least as the Tribunal understands them to be. However, the applicant does have a reduced capacity for doing the work on which she was engaged, namely, typing duties in association with lifting or dragging of mail bags, filing of material in old style over-full filing cabinets, and meter reading where this involves balancing on a ladder."
The Tribunal did not suggest that Miss Gersbach was capable of earning income other than by typing for an employer who understood that
"... typing is now, for health and managerial reasons, regarded as something that can be interrupted by the employee at the employee's discretion at such time as a cramp, pain, or other discomfort should emerge in the course of the employee's duties.",
or by like work.
Thus, the evidence established that Miss Gersbach had been partially incapacitated for work by the accident and, as the Tribunal said, she was unable to do the work which prior to her resignation in 1982 she had been doing. Accordingly, one part of the market which had previously been open to her was closed as a result of the injury. And, as the Australian Telecommunications Commission had been her employer for eight and a half years, that was a closure of considerable significance. Carrying heavy mailbags was not the only task that she was precluded from doing. Her injury had occurred when she had been standing on a ladder for some time reading meters. It could not reasonably be suggested that she ought to repeat that type of activity. Indeed, many types of work were closed to her. Any employment which involved her in doing a variety of jobs necessitating stretching or stooping or lifting or the like was closed to her. Prior to her injury, Miss Gersbach had, from time to time, done a variety of tasks additional to the tasks of typing. Prior to her injury, she could reasonably have looked for work in a wide variety of employment, including work involving stooping, bending, lifting and so on. In my opinion, on the evidence before it, the Tribunal, if properly instructed as to the concept of partial incapacity for work, could have come only to the conclusion that, by reason of her injury, Miss Gersbach had a "reduced physical capacity, by reason of physical disability, for actually doing work in the labour market in which the employee was working or might reasonably be expected to work".
For these reasons, the Tribunal ought to have found the provisions of s.46(1) satisfied and ought to have gone on to consider the question posed in s.46(2). Notwithstanding that much of the Tribunal's reasons may seem to have been referable to the question under s.46(2), the Tribunal did not make a finding under that sub-section, but found simply that Miss Gersbach was not, after her resignation, either totally or partially incapacitated for work. As, in my opinion, this finding was wrong in law, I will allow the appeal with costs. The decision under review will be set aside and the matter will be remitted to the Administrative Appeals Tribunal for re-hearing.