Comcare v Levett

[1995] FCA 783

CATCHWORDS

ADMINISTRATIVE LAW - Administrative Appeals Tribunal - statutory appeal - statutes - interpretation: Safety, Rehabilitation and Compensation Act 1988 (Cth), ss. 4, 24 and 124 - "permanent impairment" and "being an impairment" - workers compensation - for what injuries compensation is payable - evidence - the Administrative Appeals Tribunal has a statutory obligation to make findings on material questions of fact and to refer to the material upon which those findings are based.

Safety, Rehabilitation and Compensation Act, 1988 (Cth): ss. 4, 24 and 124
Compensation (Commonwealth Government Employees) Act, 1971 (Cth): s. 39
Administrative Appeals Tribunal Act, 1975 (Cth): s 43

Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297
Blackman v Australian Telecommunications Corporation (1990) 12 AAR 11
Brennan v Comcare (1994) 50 FCR 555
Telstra Corporation Limited v Angelica, Olney J., unreported, 28 July 1994
Dornan v Riordan (1990) 24 FCR 564
Australian Telecommunications Commission v Barker (1990) 12 AAR 490
Telescourt v Commonwealth (1991) 29 FCR 227
Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233
Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65

COMCARE v IAN GORDON LEVETT
No. G303 of 1995

Lockhart, Beazley and Moore JJ
29 September 1995
Sydney

IN THE FEDERAL COURT OF AUSTRALIA )
  )    No. G303 of 1995
NEW SOUTH WALES DISTRICT REGISTRY )
  )
GENERAL DIVISION                 )

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL, GENERAL ADMINISTRATIVE DIVISION

BETWEEN:COMCARE

Applicant

AND:IAN GORDON LEVETT

Respondent

CORAM:LOCKHART, BEAZLEY and MOORE JJ.

PLACE:    SYDNEY
DATE:     29 SEPTEMBER 1995

MINUTE OF ORDER

THE COURT ORDERS THAT:

1. The decision of the Administrative Appeals Tribunal, General Administrative Division, made on 6 April 1995, be affirmed.

2. The application otherwise be dismissed.

3. The applicant pay the respondent's costs of the application.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )
  )    No. G303 of 1995
NEW SOUTH WALES DISTRICT REGISTRY )
  )
GENERAL DIVISION                 )

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL, GENERAL ADMINISTRATIVE DIVISION

BETWEEN:COMCARE

Applicant

AND:IAN GORDON LEVETT

Respondent

CORAM:LOCKHART, BEAZLEY and MOORE JJ.

PLACE:    SYDNEY
DATE:     29 SEPTEMBER 1995

REASONS FOR JUDGMENT

THE COURT
This is an appeal, within the original jurisdiction of the Court, pursuant to s. 44(1) of the Administrative Appeals Tribunal Act 1975 from a decision made on 6 April 1995 of the Administrative Appeals Tribunal, General Administrative Division (the Tribunal), constituted by a presidential member (R N Purvis J.), setting aside the decision under review before it and remitting the matter to the applicant for assessment of compensation in accordance with the findings in the Tribunal's reasons for decision. The decision under review before the Tribunal was a decision of a delegate of the applicant made on 26 July 1994 affirming a decision of 15
October 1993 to the effect that the respondent is not entitled to a lump sum payment for permanent impairment under the Safety Rehabilitation and Compensation Act 1988 (the 1988 Act).

The central question in the appeal concerns the construction of s. 124(3) of the 1988 Act, in particular the meaning of the phrases "permanent impairment" and "being an impairment". Also relevant is the way in which the transitional provisions of the Act provide for the payment of compensation in respect of a permanent impairment that occurred before the commencing date of the Act.

Statutory Scheme
     The 1988 Act, which commenced operation on 1 December 1988, introduced a new scheme of rehabilitation and compensation for persons who, broadly speaking, may be described as employees of the Commonwealth.  It repealed (s. 139), and replaced, the previous compensation scheme which operated under the Compensation (Commonwealth Employees) Act, 1971 (Cth) (the 1971 Act).

Section 124 is one of a number of transitional provisions in Division 2 of Part X of the 1988 Act, which is intended to create continuity between the scheme established by the 1971 Act and the scheme created by the 1988 Act. Both Acts concern the provision of benefits as either a periodic payment, or a lump sum payment, to Commonwealth employees injured as a result of or in the course of their employment. One of the purposes of the transitional provisions is to establish the benefits, if any, arising under the 1988 Act resulting from events which occurred while the 1971 Act was in force. In this case it is only necessary to refer to the 1971 Act, and not earlier Acts dealing with the same subject matter.

Section 24(1) of the 1988 Act renders the applicant liable to pay compensation in the form of a lump sum to an employee who has suffered an injury resulting in permanent impairment. That liability is subject to limitations and qualifications.

"Injury", "impairment" and "permanent" are defined in s. 4 of the 1988 Act as follows:

" 'injury' means:

a)a disease suffered by an employee; or

b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or

c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;"

" 'impairment' means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function;"

" 'permanent' means likely to continue indefinitely."

Subject to one possible qualification, it can be seen that injury, as defined, concerns harm done to the mind or body of an employee; and impairment, as defined, deals with the consequences in a functional sense of that harm.  The possible qualification may arise from the inclusion in the definition of the words "the damage ... of any part of the body".

Section 124 relevantly provides:

"(1) Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.

(1A)Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.

(2)A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:

(a)where the injury, loss or damage was suffered before the commencement of the 1930 Act -
under the 1912 Act;

(b)where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act - under the 1930 Act as in force when the injury, loss or damage was suffered; or

(c)in any other case - under the 1971 Act as in force when the injury, loss or damage was suffered.

(3)A person is not entitled to compensation under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing date, if:

(a)the person received compensation of a lump sum in respect of that impairment or death under the 1912 Act, the 1930 Act or the 1971 Act; or

(b)the person was not entitled to receive compensation of a lump sum in respect of that impairment or death:

(i)where the impairment or death occurred before the commencement of the 1930 Act - under the 1912 Act;

(ii)where the impairment or death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act - under the 1930 Act as in force when the impairment or death occurred; or

(iii)in any other case - under the 1971 Act as in force when the impairment or death occurred.

(4)The amount of compensation (if any) that a person is, by virtue of this section, entitled to receive under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing day, shall be the same as the amount of the compensation that would have been payable to that person, if this Act had not been enacted, under:

(a)where the impairment or death occurred before the commencement of the 1930 Act - the 1912 Act;

(b)where the impairment or death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act - the 1930 Act as in force when the impairment or death occurred; or

(c)in any other case - the 1971 Act as in force when the impairment or death occurred.

(5)...

(6)  ...

(7)  ...

(8)  ...

(9)  ...

(10) ...

(11) ...

(12) ..."

Thus, s. 124(1) applies in relation to an injury, loss or damage suffered by an employee whether before or after the commencing day (s. 124(1)).

Subsection (1A) confers upon a person entitlement to compensation under the 1988 Act in respect of an injury, loss or damage suffered before the commencing day if compensation was or would have been payable to the person in respect of that injury, loss or damage under the 1971 Act (reference is also made in subsections (1A) and (2) to the 1912 and the 1930 Acts but we need not refer to them for present purposes).

Subsection (2) limits the entitlement of a person to compensation under the 1988 Act by providing that a person is not entitled to compensation under the 1988 Act in respect of an injury, loss or damage suffered before the commencing day (1 December 1988), if compensation was not payable in respect of that injury, loss or damage under the 1971 Act, as it was in force when the injury, loss or damage was suffered.

Section 124(3) limits the circumstances in which, by operation of s. 24, the applicant would be liable to pay compensation as a lump sum. There is no such liability if the employee had received a lump sum under earlier Commonwealth law (s. 124(3)(a)) or the employee would not have been entitled to receive a lump sum under that law (s. 124(3)(b)).

It is not in issue in this appeal that an employee who suffered an injury before the 1988 Act came into force is entitled to compensation under s. 24, if the employee suffered an impairment after it came into force, and the impairment, at the time it occurred, or later, became permanent. What is in issue is whether an employee who suffered an injury in the period before the 1988 Act came into force is entitled to compensation under s. 24 if the employee suffered impairment in the same period.

For present purposes, the primary liability of the applicant, and thus the source of the benefit of the employee, is created by s. 24 subject to the operation of s. 124. We limit our analysis of the 1988 Act to the sections relevant to the circumstances of the respondent. As earlier indicated, s. 124(3) disentitles an employee to compensation in two situations. The first is when, as a matter of fact, the employee has received compensation of a lump sum. That has no relevance in the present case. The second is when the person was not entitled to receive compensation of a lump sum for an impairment which occurred while the 1971 Act was in force. Thus, the question becomes whether any impairment suffered by the respondent entitled him to a lump sum under the 1971 Act. We are not concerned at this point in our analysis with the question of whether impairment in s. 124(3)(b) refers to permanent impairment or impairment simpliciter.

Part III of the 1971 Act deals with compensation. Various sections deal with the payment of lump sum compensation. Section 39 deals with compensation for loss of a number of specified bodily functions, or the loss of a number of specified parts of the body. Other sections deal with one specific matter. Nowhere in s. 39 or elsewhere in the 1971 Act is there created an entitlement to compensation as a lump sum for a back injury other than by the redemption of an entitlement to periodic payments. Thus, the exclusionary provisions in s. 124(3)(b)(iii) would apply to a back injury if it caused an impairment to which s. 24 otherwise applies and the impairment occurred while the 1971 Act was in force.

This leads to a consideration of the prefatory words in s. 124(3) and the scope of the limits it places on the operation of s. 24. It is to be remembered that s. 24 concerns compensation for permanent impairment. That Parliament intended to limit the broad operation of s. 24 is clear from the opening words of s. 124(3) which say that "a person is not entitled to compensation under s. 24 .. in respect of a permanent impairment ..." (emphasis added). However, the construction contended by the applicant is that the exclusionary effect of s. 124(3) is widened by the later use of the word "impairment" unqualified by the adjective "permanent". The applicant submitted that s. 24 has no operation if an employee suffered an impairment, whether permanent or not, prior to the 1988 Act coming into force and that impairment was not compensable by a lump sum payment under the 1971 Act.

In our opinion, the language of s. 124 does not sustain this construction; nor is it consistent with the purpose of the 1988 Act as a whole. The 1988 Act is beneficial legislation that should be construed liberally: see the observations of Burchett J. in Brennan v Comcare (1994) 50 FCR 555 at 559. The words "being an impairment or death" in s. 124(3) follow two related phrases, namely, "a permanent impairment" and "the death of an employee". The words "an impairment or death" are a condensation and amalgamation of these two phrases. The entire phrase "being an impairment or death that occurred before the commencing date" is intended to identify a permanent impairment or death with a particular characteristic; namely, it must have occurred before the commencement of the 1988 Act. Section 124(3) is intended to render s. 24 inapplicable to a permanent impairment that occurred while the 1971 Act was in force if either the employee had received a lump sum, or was not entitled to a lump sum for that permanent impairment. The 1971 Act did not speak in terms of impairment or permanent impairment. Nevertheless, the plain purpose of s. 124(3) is to exclude the operation of s. 24 in the case of an employee who suffered a disability which, as described in the language of Part III of the 1971 Act, was not compensable by a lump sum payment or, if it was, a lump sum was paid.

This construction of s. 124 gains some support from the references in it to earlier Commonwealth laws. In addition to the reference to the 1971 Act there is a reference to the "1912 Act" and "the 1930 Act". The former is the Commonwealth Workmen's Compensation Act 1912 (Cth) and the latter is the Commonwealth Employees' Compensation Act 1930 (Cth). Section 4 of the 1912 Act rendered the Commonwealth liable to pay compensation by way of weekly payments in accordance with the First Schedule. No provision was made for lump sum payments other than as a result of the redemption of an entitlement to weekly payment. Similarly s. 9 of the 1930 Act provided for weekly payments which could be redeemed as a lump sum: see Schedule 1 clause (11); and s. 12 provided for the payment of a lump sum for specified injuries which, having regard to their character, were permanent: see Schedule 3. We have already referred to s. 39 of the 1971 Act which provided for the payment of a lump sum in relation to identified losses flowing from an injury. Section 39(15) provided:

"In this section, "loss" means a permanent loss".

Thus, it can be seen that at least in the 1930 and 1971 Acts the nature of the loss for which a lump sum was to be paid was a permanent loss.

The operation of s. 24 of the 1988 Act is limited by s. 124(3), properly construed, only when a permanent impairment occurred before the 1988 Act came into force.

The construction which we have adopted of s. 124(3) is consistent with the judgment of the High Court in Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 especially per McHugh J. at 324.

Section 124(3) was considered by Full Courts of this Court in Blackman v Australian Telecommunications Corporation (1990) 12 AAR 11 and Brennan v Comcare (1994) 50 FCR 555. The facts in those two cases differ from the facts in the present case and from each other. In Blackman it was held that the natural meaning of the expression "impairment ... that occurred before the commencing date" in s. 124(3) was such as to cover the case in which there was but a single impairment
which came into existence before 1 December 1988 and thereafter fluctuated in intensity but generally worsened.  The Court declined to read subsection (3) so that each time an impairment worsened significantly there was a new impairment within the meaning of the 1988 Act.

In Brennan Burchett J. held that the language of subsection (3) is consistent with the interpretation which he placed upon it, that there may be a number of impairments arising at different times out of the same injury, and that only when the relevant impairment occurred before the commencing date of the 1988 Act do the exclusionary provisions of subsection (3) operate.  Unless they do, subsection (1) holds sway and an impairment is compensable under the 1988 Act.

Gummow J. reached a similar conclusion.  His Honour said at 569 that permanent impairment must have been reached before 1 December 1988 in order for the exclusion of subsection (3) to operate.  Ryan J. agreed with Burchett and Gummow JJ.  Both Burchett J. and Gummow J. expressed the view that Blackman should be treated with some caution especially on the question whether a gradual worsening of a condition can or cannot be seen as involving a fresh impairment (Burchett J. at 560 and Gummow J. at 570-571). We share that view.

In the present case, however, the point on which the case turns is a different one to those that determined both Blackman and Brennan, because the Tribunal found as a question of fact in this case that the respondent suffered an injury before 1 December 1988 which resulted in an impairment occurring before that date, but not a permanent impairment.  Permanent impairment did not arise until after 1 December 1988.  In other words the respondent's injury produced a pre‑1988 Act impairment, but it was not until after the commencement of the operation of the 1988 Act that permanent impairment occurred.

Reference must also be made by us to the decision of a judge of the Court (Olney J.) in Telstra Corporation Limited v Giovanni Angelica, unreported, 28 July 1994. There his Honour treated the words "in respect of a permanent impairment" where appearing in s. 124(3) as redundant. He said at 16:

"If those words are omitted, which they would well be as they serve no function, any doubt as to the legislative intention is removed."

We respectfully disagree for the reasons which we gave earlier. The words "permanent impairment" in s. 124(3) play a pivotal role in the operation of the subsection.

Respondent's case
     The respondent, who was born on 4 September 1957, enlisted in the Australian Army Reserve on 5 September 1979 and was discharged on 19 November 1982.  In his medical history questionnaire, completed in 1979 at the time he joined

the Army Reserve, the respondent gave a history of a muscular strain injury to his back in about 1975, for which he had applied for compensation and been off duty for 3 months.  On 25 June 1982, whilst on duty as a member of the Army Reserve, he injured his back.  The applicant accepted liability for the injury, which initially was described as:

"severe lumbo-sacral sprain strain".

The respondent was assessed as being medically unfit for re-engagement and was subsequently discharged from the army reserve.  Before his discharge, he was reviewed by an Area Medical Officer who stated that the respondent had:

"sudden severe back pain [plus or minus] 3 months ago lifting heavy weight - lumbar spine area.  Spine x-ray - NAD.  Now has mild backpain but spinal movements normal.....I require him to continue with the appropriate treatment."

A report from a medical board examination on 9 September 1982 noted that the respondent had "chronic back injury".  On 1 November 1982, the respondent underwent a further medical board examination.  On 24 November 1982, Dr Taylor noted that the respondent had suffered "sprain-strain of the sacro-iliac weight bearing ligaments" and "severe strain of the 5th Lumbar Vertebra."  Dr Taylor stated:

"They are of a short term nature and Mr Levett should have little discomfort due to chiropractic treatment and the Lumbo Sacral spine has healed well."

However, in February 1983, the respondent complained of sharp pains in his back and a desire to resume treatment.  He did so, and by 23 June 1983 Dr Taylor had reported that the respondent:

"has fully recovered from his initial complaint ... sustained on 25/6/82 ...  This condition is of a temporary nature and should not return....No restrictions should be placed upon the patient.  Only common sense care whilst lifting."

By this stage, the respondent had obtained a position as a driver/storeman.

In December 1983, the respondent was referred to Dr Bye, orthopaedic surgeon.  However, Dr Bye found no evidence of focal neurological deficit in either upper or lower limbs. An x-ray of the thoraco-lumbar spine showed no bone or joint abnormality.  He said that he could not understand why the respondent's symptoms from the lifting incident in 1982 were persisting, particularly in the absence of "any objective functional deficit".  Dr Bye remained of that view in April 1984.  However, in July 1984, on the basis of the applicant's history of being troubled by backache, with stiffness of back movement and tightness of hip movement for some five days, after examination, the doctor reported that the respondent had a recurrence of a musculo-tendinous strain of the lumbar spine.  Two weeks later, Dr Bye noted no further backpain and certified him fit for work.  But in May 1985, the respondent
underwent a CT scan of the lumbar spine and it revealed a "posterior bulging and slight herniation of the L5/S1 disc, which is impinging upon the dural sac but not compressing it, and impinging upon the posterior nerve roots and narrowing the intervertebral foramina".

In August 1995, Dr Bye reported to the Department of Defence as follows:

"My initial impressions were that this man had had a recurrence of a lumbar extensor muscle sprain.  On going into his history there seems to be some persistence of symptoms all along since the initial work injury...in June 1982."

The respondent continued to work between 1985 and 1991 in the transport industry.  He continued to suffer from pain in his back.  However, in 1991, his backpain became worse and he became restricted in many ways.  He could hardly walk.  At about this time, he came under the care of Dr Giblin, orthopaedic surgeon.  Dr Giblin arranged a CT scan which revealed:

"At the L5/S1 level there is moderate posterior and right postero‑lateral bulging of the disc, creating encroachment on the origin of each S1 nerve root, more marked on the right than on the left."

Dr Giblin recommended that the respondent wear a Boston brace for a month.  In about October 1991, Dr Giblin arranged for the respondent to have an MRI scan.  That scan revealed:

"There is decreased signal intensity in the L5-S1 disc consistent with disc dehydration and degeneration.  Some focal loss of signal intensity in the T12-L1 disc is consistent with degenerative calcification within this disc.

There is posterior rupture of the L5-S1 disc with a moderate sized broadbased posterior disc protrusion in the midline and slightly to the left of midline, causing elevation of the posterior longitudinal ligament.  There is encroachment on the origin of each S1 nerve root at this level, slightly more marked on the right than on the left."

On Dr Giblin's recommendation, the respondent had a fusion at L5/S1 with an L5/S1 disectomy in January 1992.  The applicant remained unfit for work during the following months.  In July 1992, he underwent rehabilitation at the Illawarra Occupational Health Organisation.

In August 1992, the respondent had a sudden increase in pain going down the backs of his legs.  A further CT scan was obtained:

"There is some narrowing of the L5-S1 disc with the remaining discs appearing within normal limits. ... At the L5-S1 level there is a small broad-based posterior and right postero-lateral disc protrusion, encroaching on the origin of the right S1 nerve root.  There has been a previous right hemi-laminectomy performed at this level, with partial right apophysectomy with partial excision of the right L5 inferior articular process.  There is some prominence of the right S1 nerve root which may represent post-surgical changes or possibly nerve root oedema."

The respondent continued to complain of symptoms of increasing back pain in various circumstances.  In January 1993, he had a further MRI scan which revealed a decreased signal intensity in the L5/S1 disc consistent with disc dehydration and degeneration.  The area of calcific degeneration within the T12/L1 disc was noted.  There was still posterior rupture of the L5/S1 disc with no evidence of significant posterior protrusion at that time.  There had been some loss of definition of the right S1 nerve and some apparent soft tissue density consistent with post-operative fibrosis involving the right S1 nerve root.

In January 1993, the respondent came under the care of Dr Segelov, neurosurgeon.   Dr Segelov arranged for another MRI scan and formed the opinion that the respondent's persistent pain was due to nerve scarring consequent to the original injury in 1982, and subsequent stresses on his back related to his work of driving heavy vehicles.

The respondent was also referred to Dr Salmon, a consultant for anaesthesia and pain.  In April 1993, the respondent was referred again to Dr Segelov, who at this time noted that he continued to experience a lot of pain in the legs "more in the left leg now, and across the lower back".  Dr Segelov observed that the dominating pain was in the legs rather than the back.  By June 1993, the respondent was complaining of increased pain levels and a sensation of instability in the lumbar spine.  Dr Salmon recorded "bilateral leg pains which are constant."   In March 1994, Dr Giblin reported that the respondent's condition had stabilised and that he was permanently unfit for his pre-injury job.  He assessed him as having 30% permanent impairment of his back with 10% permanent loss of function of each leg at or above the knee and 5% permanent loss of function of each leg below the knee.

No evidence ground
     It was argued on behalf of the applicant that the Tribunal erred in reaching its finding that the respondent's impairment did not become permanent until after 1 December 1988 because there was no evidence to support that finding.  It was submitted that this finding was based essentially upon the Tribunal's conclusions about the severity of the respondent's back condition and his inability to engage in gainful employment, rather than the fact that he had suffered damage to his back which had continued from 1982.  It was argued that the Tribunal failed to take into account, as a relevant consideration, the respondent's own evidence about his ongoing back problems between 1982 and 1991 and the evidence from a CT scan carried out in 1985 showing that the relevant intervertebral disk was damaged in 1982.  It was submitted also that there was no evidence before the Tribunal from a medical practitioner that would enable it properly to conclude that the respondent's impairment became permanent after 1 December 1988.

The Tribunal reviewed the evidence before it with respect to the respondent's health, in particular his back problem, at some length.  It concluded that since 1982 the respondent has said that he has not had any accident to his lower back region other than the incident that occurred in June 1982.  The pain, however, has never "gone away completely".  He suffered a motor vehicle accident in June 1985 as a consequence of which he experienced pain in his neck and pain in the upper and mid area of his back; but the respondent said that this did not cause him any continuing trouble.  The Tribunal found that as at June 1982 the respondent was a fit man and had been fit for some years prior to then.  The motor vehicle injury in 1985 was not one that affected his condition consequent to the June 1982 accident.  The Tribunal accepted that the condition experienced by the respondent, as it related to his lumbar spine and his legs, was attributable to the June 1982 accident.

In 1990 when he was working as a transport supervisor, driving heavy transport vehicles, he experienced severe back pain radiating down his legs and then saw the specialist, Dr Giblin.  The subsequent medical history is referred to earlier in these reasons.  The Tribunal noted that Dr Taylor said in his report of 24 November 1982 that the respondent's back problem was of a short term nature.  On 23 June 1983 Dr Taylor reported that the respondent had fully recovered from his initial complaint sustained on 25 June 1982 and that the condition was of a temporary nature and should not return.  In April 1984 Dr Bye reported that he felt that there was "very little wrong with him". 

The Tribunal concluded that the respondent did not suffer an accident or incident affecting his lower back condition after the one that occurred in June 1982.  It was satisfied on the medical evidence that until about 1991, when the respondent had cause to be referred to Dr Giblin, his condition, while presenting pain and some limited disability, did not preclude him from engaging in his employment; and that from 1991 the condition of the respondent manifested itself increasingly, so that by 1994 he was permanently unfit.  The Tribunal found that the respondent suffered from an impairment which became permanent after 1 December 1988.  It is apparent that from 1985 till 1991 he was unable to undertake work- related activities; but it was not until 1991 that his condition worsened and he underwent examination and treatment.  The Tribunal was satisfied that the permanent impairment did not arise or occur until the onset of the symptoms that became manifest in 1991, when the respondent was unable to engage in gainful employment.

In our opinion it was open to the Tribunal on the whole of the evidence to reach the conclusion which it did.  There was ample evidence to support the finding of the Tribunal that the respondent suffered an injury that resulted in impairment and occurred before 1 December 1988, but which did not result in permanent impairment until after that date.  Accordingly, the respondent was not disqualified from entitlement to compensation in the form of a lump sum under the 1988 Act.

Failure to give reasons
It was argued by counsel for the applicant that the Tribunal failed to state fully its reasons for decision and failed to make findings on material questions of fact. It was argued that the Tribunal had an obligation to state what evidence it took into account, and why it accepted the respondent's evidence; and further, that it failed to do this so falling short of the standard required by s. 43(2B) of the Administrative Appeals Tribunal Act 1975.

The Tribunal has a statutory obligation to make findings on material questions of fact, to refer to the material upon which those findings are based, and to provide reasons for its decision (s. 43 of the Administrative Appeals Tribunal Act,  1975 (Cth)).  A failure by the Tribunal to do so constitutes an error of law:  Dornan v Riordan (1990) 24 FCR 564; Australian Telecommunications Commission v Barker (1990) 12 AAR 490; Telescourt v Commonwealth (1991) 29 FCR 227; Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233. In Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65 at 88, Sheppard J. described the basis for the requirement that reasons be provided in these terms:

"Reasons are required to inform the public and parties with an immediate interest in the outcome of the proceedings of the manner in which the tribunal's conclusions were arrived at.  A purpose of requiring reasons is to enable the question whether legal error has been made by the tribunal to be more readily perceived than otherwise might be the case.  But that is not the only important purpose which the furnishing of reasons has.  A prime purpose is the disclosure of the tribunal's reasoning process to the public and the parties."

And as Lockhart J said in Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233 at 251:

"It is true that in the course of its lengthy reasons for decision the Tribunal did not say expressly that it made particular findings of fact; but it referred to many matters of fact relevant to the issues before it.  Plainly the Tribunal regarded these matters as relevant and material; otherwise it is difficult, if not impossible, to conceive why any reference was made to them at all".

There is no substance in the argument of counsel for the applicant.  It is based primarily upon the fact that, at the conclusion of the reasons of the Tribunal, the learned Deputy President stated some ten findings.  These findings were plainly the conclusions of the Tribunal based upon earlier findings and full statement of the facts found by it. 

Tribunal's findings of "incapacity" of the respondent
     It was argued by counsel for the applicant that the Tribunal entered into an impermissible field of inquiry, exemplified by its finding that the respondent experienced "incapacity" as a result of the injuries sustained by him in 1982, and which were compensable during his employment with the Army. 

Counsel for the applicant made a number of submissions with respect to the finding of the Tribunal concerning incapacity; but counsel frankly said that the reason for the submission was to avoid issue estoppel arising in the event that the respondent sues Comcare for damages at common law, a right which would not be excluded by operation of the 1988 Act, or the 1971 Act, if the permanent impairment did not arise until after 1 December 1988.

It was also argued by counsel for the applicant that there was a denial of natural justice to the applicant in that, by determining the question of "incapacity" for work of the respondent, the Tribunal failed to give the applicant a fair opportunity to fully and properly address that issue - an issue which was not in contention at the time of the application for review before the Tribunal. 

It is plain from reading the reasons for decision of the Tribunal as a whole that references by it to "incapacity" for work arising from the 1982 accident are made in the context of deciding whether or not there was impairment or permanent impairment.  The word "incapacity" as used by the Tribunal must be viewed in this light. 
     We would dismiss the application with costs.

I certify that this and the preceding twenty-four (24) pages are a true copy of the Reasons for Judgment of the Court.

Associate:

Dated:29 September 1995

APPEARANCES

Counsel for the Applicant    :    Mr J Wallace

Mrs J Bonsey

Solicitors for the Applicant :    Australian Government Solicitor

Counsel for the Respondent   :    Mr J D Hislop QC

Mr D J Thorley

Solicitors for the Respondent     :    Messrs Kell Heard McEwan

Date of hearing             :    14 September 1995 

Date of judgment            :    29 September 1995