Comcare v Miles
[1995] FCA 234
•13 APRIL 1995
CATCHWORDS
WORKERS COMPENSATION - injury suffered prior to commencement of Safety Rehabilitation and Compensation Act 1988 - whether Tribunal required to find percentage impairment for the purposes of s24(7) before proceeding to calculate benefit under s39 of the Compensation (Commonwealth Government Employees) Act 1971 - effect of transitional provisions considered.
WORKERS COMPENSATION - whether Tribunal entitled to consider only whether liability was to continue after compensation payments ceased or whether liability for these payments not being in issue Tribunal required to consider whether there was permanent impairment at the time payment of compensation was made as well as thereafter - whether approach of Tribunal involved error of law.
Safety, Rehabilitation and Compensation Act 1988 (Cth): ss27(2), 124
Compensation (Commonwealth Government Employees) Act 1971 (Cth): ss24(1), (3), (4), (5), (6), (7), 28, 39
Administrative Appeals Tribunal Act 1975 (Cth): s.43
Schlenert v Australian & Overseas Telecommunication Corporation (1994) 49 FCR 139; applied.
Barker v Australian Telecommunications Commission (1990) 95 ALR 72; distinguished.
COMCARE v RHONDA MILES
No NG 579 of 1994
CORAM: HILL J
PLACE: SYDNEY
DATED: 13 APRIL 1995
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No NG 579 of 1994
)
GENERAL DIVISION )
ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION
OF THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: COMCARE
Applicant
AND: RHONDA MILES
Respondent
CORAM: HILL J
PLACE: SYDNEY
DATED: 13 APRIL 1995
MINUTES OF ORDER
THE COURT ORDERS THAT:
Application dismissed.
Applicant to pay the respondent's costs of the application.
On the cross-appeal, the decision of the Tribunal be set aside so far as no order was made as to costs and in lieu thereof it be ordered that the applicant, Comcare, pay Ms Miles' costs of the proceedings before the Tribunal as agreed or, if not agreed, as assessed by a Deputy Registrar of the Tribunal.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No NG 579 of 1994
)
GENERAL DIVISION )
ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION
OF THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: COMCARE
Applicant
AND: RHONDA MILES
Respondent
CORAM: HILL J
PLACE: SYDNEY
DATED: 13 APRIL 1995
REASONS FOR JUDGMENT
Comcare, the body charged with making determinations under the Safety, Rehabilitation and Compensation Act 1988 ("the 1988 Act"), applies to the Court by way of an appeal under s43 of the Administrative Appeals Tribunal Act 1975 from the decision of the Administrative Appeals Tribunal ("the Tribunal"), constituted by Ms G Ettinger (Senior Member), Dr HD Browne (Member) and Mr DD Coffey (Member), given on a review of a decision of Comcare on 25 May 1993 which had affirmed an earlier determination of 18 August 1992, ceasing liability to pay compensation to Ms Rhonda Miles in respect of an incapacity for work claimed by her as and from 12 May 1992 and ceasing liability in toto from 21 July 1992.
The Tribunal set aside the decision under review and in substitution for it made the following decision:
"i)The applicant suffered incapacity after 12 May 1992 and is entitled to compensation for the periods 12-13 May 1992, 3-5 June 1992 and 8-12 June 1992;
ii)The applicant suffered permanent impairment which is compensable, prior to 1 December 1988; and
iii)The Tribunal finds that the applicant has suffered permanent impairment of 10% within the terms of the legislation and remits the matter to Comcare to assess the amount of compensation to be paid in accordance with this decision."
The background facts are not in dispute. They are set out in the Tribunal's Reasons for Decision and need not be repeated. Suffice it to say that Ms Miles had claimed compensation for "permanent injury" on 17 February 1992 on the basis that she suffered from tenosynovitis, as a result of an injury in September 1983. She described the permanent injury as being "damage to upper limbs".
As is normal in such cases there was a considerable amount of medical evidence before the Tribunal and that evidence is summarised in the Tribunal's Reasons. The evidence in question consisted of reports from various medical practitioners, some of whom had treated Ms Miles from as early as 1984. In its Reasons the Tribunal noted that Comcare had accepted liability for work-related incapacity for periods from 13 May 1984 up to 21 July 1992.
It may be noted that some of the medical evidence concerned itself with permanent impairment of the function of the upper limbs at or below the elbow as well as what may be referred to as "assessment of percentage whole person impairment". Some of the medical evidence made reference to the guide to the assessment of the degree of permanent impairment being the "approved Guide" referred to in s24(5) of the 1988 Act.
The Tribunal found, and this finding is not challenged, that Ms Miles' permanent impairment occurred prior to 1 December 1988, that is to say, prior to the commencement of the 1988 Act. After some discussion of the evidence the Tribunal noted that it accepted the medical evidence of Dr Browne and Dr Millar, which evidence had assisted it to arrive at the conclusion that Ms Miles' permanent impairment was ten percent. Neither Dr Browne nor Dr Millar had in fact assessed the impairment at ten percent as such, but in support of the ten percent figure the Tribunal said:
"In view of the fact that the applicant is not free of exaggeration, the Tribunal is of the opinion that the degree of impairment arrived at by Drs Browne and Millar should be adjusted to 10%. On the basis of all the evidence before the Tribunal, the Tribunal finds a permanent impairment of 10%."
The Tribunal then continued by saying that the compensation was "thus" to be determined pursuant to s39 of
the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act") by reason of the application of s124 of the 1988 Act. After setting out the terms of s39, the Tribunal then referred to s27(2) of the 1988 Act, and the decision of the Full Court of this Court in Schlenert v Australian & Overseas Telecommunication Corporation (1994) 49 FCR 139, noting that the Tribunal would award payment to Ms Miles for non-economic loss under s27(2) of the 1988 Act.
Two further matters in the Tribunal's Reasons must now be noted. First, in paras77 and 78 of the Tribunal's Reasons, the Tribunal said:
"77.The Tribunal notes that liability in respect of `tenosynovitis and myositis in the left forearm' was initially accepted by the respondent on 13 May 1984. The Tribunal accepts that the applicant suffered a work related injury in September 1983 in terms of the 1971 Act. Such injury resulted in the applicant being incapacitated for work for certain periods from 1984 to 12 May 1992, for which she was paid compensation by the respondent on various grounds, as shown in the evidence before the Tribunal.
78.The Tribunal has noted the nature of the applicant's work in the years 1983 and following, during which she started to have complaints with regard to the use of her upper limbs. Evidence before the Tribunal is that the applicant was compensated for tenosynovitis and related complaints between 13 May 1984 and that compensation ceased in toto from 21 July 1992. The Tribunal accepts the evidence of her treating doctors, Drs Segelov, Millar, and Browne, that the applicant suffered injury as a result of overuse at work, and that this was causing on going problems at the time of their last reports. Ms Chan, physiotherapist, also drew the conclusion that the examination findings were consistent with a chronic overuse problem. The Tribunal finds on the evidence before it that the applicant was suffering work related injury to her upper limbs in May 1992 and at the time of the hearing. There was no evidence before the Tribunal to convince it that the applicant's situation had changed since 1992, that the pain the applicant suffered had reduced, or that she was able to carry out other than duties not involving repetitive movement of her upper limbs. [sic] The Tribunal therefore, finds that the applicant should be compensated for the periods 3-5 May, 12-13 May and 8-12 June 1992."
Finally, the Tribunal said that it made no order as to costs for the reason, apparently, that no submissions had been made at the hearing on the question. That is true, although I was told from the bar table that as soon as the Tribunal delivered its Reasons, counsel for Ms Miles sought to make a submission on costs and to have the Tribunal vacate so much of its order as related to costs but the Tribunal declined to do so. Ms Miles has cross-appealed against the Tribunal's costs order. Counsel for Comcare has accepted that if Comcare were otherwise unsuccessful in the appeal an order should be made by consent that Ms Miles be entitled to costs of the proceedings before the Tribunal.
Although the matter was put in various ways, three questions arise for decision on Comcare's appeal. These may be summarised as follows:
The Tribunal misdirected itself in finding that Ms Miles had a ten percent whole person permanent impairment and in taking into account for that purpose the approved Guide, when the only relevant matter for decision was what compensation for permanent impairment, if any, was payable under s39 of the 1971 Act, made applicable by the provisions of s124 of the 1988 Act. It was said that the Tribunal's error was manifested in its order which, having regard to the terms of s39, could not be carried out by Comcare in assessing compensation payable to Ms Miles.
The Tribunal erred in law by finding as a fact that the reduction of the amount of Ms Miles' permanent impairment to ten percent would eliminate the effects of exaggeration or that there was such a permanent impairment of ten percent, when there was no evidence upon which that finding could be based.
The Tribunal erred in approaching the case before it by looking for changed circumstances after 1992 and failing to determine for itself whether there was permanent impairment prior to 1992. Put another way, it was said that the Tribunal had taken into account the fact that Comcare had accepted liability up until 1992 as a relevant matter in determining whether permanent impairment existed.
I shall deal with each of these submissions in turn.
Whether the Tribunal misdirected itself in coming to a conclusion about whole person permanent impairment rather than the quantum of compensation to be determined by reference to s39 of the 1977 Act.
To understand the competing submissions it is necessary to consider briefly the relevant provisions of the 1988 Act and the 1971 Act.
Comcare's obligation to pay compensation to an employee, in respect of a work related injury resulting in a permanent impairment, stems from s24(1) of the 1988 Act. In a case where the injury arises after the commencement of the 1988 Act, Comcare is required to assess the degree of permanent impairment of the employee as a percentage and the compensation payable is to be that percentage of a maximum amount determined under the legislation: ss24(3), (4), (5) and (6). The percentage of impairment is to be determined by reference to the Guide which is to be prepared by Comcare and approved by the Minister, pursuant to the provisions of s28 of the 1988 Act.
The submission for Comcare in the present case is that the process engaged in by the Tribunal, which resulted in the Tribunal's decision, was a calculation of this percentage of permanent impairment, a calculation which the Tribunal was not required to undertake because, as will be seen, the quantum of compensation in the present case was required to be determined under the 1971 Act.
The comments so far made as to the legislative scheme are, however, subject to the provisions of s24(7) which, so far as is relevant, provides that where Comcare determines the degree of permanent impairment of an employee to be less than ten percent, no compensation is payable to the employee under the section. The obvious legislative policy of s24 is thus, while providing a maximum cap upon Comcare's liability, to also provide a threshold of ten percent permanent impairment before any benefit is payable.
Additional compensation for non-economic loss is payable to an employee under s27 of the 1988 Act. That additional compensation is determined in accordance with a formula set out in s27(2) as follows:
"($15,000 x A) + ($15,000 x B)
where:
Ais the percentage finally determined by Comcare under section 24 to be the degree of permanent impairment of the employee; and
Bis the percentage determined by Comcare under the approved Guide to be the degree of non-economic loss suffered by the employee."
Transitional provisions relevant to the case of an employee with a compensable injury under the 1971 Act are contained in s124 of the 1988 Act. Sub-section (1) of that section provides that the 1988 Act is to apply in relation to an injury, loss or damage suffered by an employee, inter alia, before the commencement of the 1988 Act on 1 December 1988. It is unnecessary to traverse in detail the provisions of s124(1). It suffices, for present purposes, to say that it is a pre-requisite for compensation being payable in a transitional case that the claimant would have been entitled to compensation under the 1971 Act, but for the repeal of that Act by the 1988 Act.
The effect of s124(4)(c) of the 1988 Act is to substitute for the compensation payable under s24, in a transitional case, the compensation that would have been payable under the 1971 Act as in force when the impairment occurred. The sub-section thus reads relevantly:
"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 ... being an impairment ... 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:
...
(c)... - the 1971 Act as in force when the impairment ... occurred."
For present purposes, the compensation that would have been payable to Ms Miles under the 1971 Act, had the 1988 Act not been enacted, is required to be determined under s39 of the 1971 Act. It is unnecessary to detail with precision the terms of s39. Suffice it to say that the scheme of the section, for relevant purposes, is to prescribe percentages appropriate to particular types of loss. Thus, for example, a percentage of eighty percent is prescribed for the loss of an arm at or above the elbow and seventy percent for the loss of an arm below the elbow. That percentage is then to be applied to a maximum compensation figure prescribed. Section 39(11) provides that a lesser percentage is to be assessed where there is partial loss of the efficient use of a part of a body specified in s39(4).
Thus, where s39 is applicable to calculate compensation, Comcare, or the Tribunal acting in its place on review, is required to calculate a specific percentage related to the nature of the particular loss. Where more than one loss is claimed to have been suffered, there would need to be a calculation of more than one percentage. In the present case, there would need to be a percentage calculated in respect of the loss above the elbow and a separate percentage for the loss of movement of the arm below the elbow.
The complaint on behalf of Comcare is that the determination by the Tribunal of a figure of ten percent permanent impairment, while applicable if the 1988 Act had prescribed the relevant compensation was inapplicable to a calculation under s39. So, it was said, that the Tribunal had clearly applied the wrong legislative test.
At first blush the submission might be thought to have weight. It ignores, however, the provisions of s24(7) of the 1988 Act. In my opinion, the proper interpretation of s24, in a case to which the transitional provisions of s124 of the 1988 Act apply, is that while compensation will be determined in accordance with the 1971 Act (and in a case such as the present - s39) the benefit which is deemed to be payable under s24 of the 1988 Act will nevertheless not be payable if the degree of permanent impairment of the employee is less than ten percent. That seems to follow from the clear words of s24(7). The legislative policy of the 1988 Act is to restrict compensation to cases of some seriousness with ten percent incapacity as the threshold, not only with respect to cases arising after the commencement of the 1988 Act, but also with respect to claims subject to the transitional provisions of s124. In my view, the ten percent threshold thus applies whether the ultimate amount of compensation is determined in accordance with the method of calculation actually set out in s24 or whether, in a transitional case, it is to be determined under s39. Both methods are treated as determinations under s24 of the 1988 Act.
In other words, had the Tribunal decided in the present case that the degree of permanent impairment caused by Ms Miles' injury was less than ten percent, no amount of compensation at all would have been payable to her. However, that is not what the Tribunal found. The Tribunal found that she had in fact suffered permanent impairment of ten percent, with the consequence that the limitation on compensation contained in s24(7) did not apply. This had the result that she was entitled, therefore, to compensation under s39 and it was for this reason that the Tribunal, as it was empowered to do, remitted the matter to Comcare for assessment.
The interpretation of s24(7) which I have adopted makes possible the calculation of compensation under s27 for non-economic loss.
The Full Court of this Court in Schlenert, by majority, Sheppard and Einfeld JJ, Lockhart J dissenting, held that in a transitional case, compensable under the 1971 Act, additional compensation was payable in respect of non-economic loss pursuant to s27. Critical to the reasoning of Sheppard J was his Honour's conclusion that in a transitional case the benefit (albeit calculated in accordance with the 1971 Act) was a benefit payable under s24. This was so notwithstanding that s24 only became operable because of the provisions of s124(1). As compensation was payable under s27, so long as compensation was payable under s24, there was no reason why, in a transitional case, a claimant should not be entitled to compensation under s27.
If s27 applies, it follows that it must be necessary for there to be a determination of the figure that is `A' in the formula contained in s27(2), that is to say, the percentage determined under s24. This adds some support to the interpretation which I have adopted. It will always be necessary, even in a transitional case, for a percentage to be determined under s24, even if only to determine that the threshold ten percent level has been exceeded. That percentage figure can then be used to calculate the benefit payable under s27.
I should here note that counsel for Comcare formally submitted that the decision in Schlenert was wrong and should not be followed. It was accepted that I was bound by the decision and that accordingly an additional benefit could properly be payable to Ms Miles under s27 in the present circumstances.
It follows, in my view, that the Tribunal did not err in the way submitted by counsel for Comcare.
The attack on the Tribunal's finding of ten percent permanent impairment
This attack was put on two bases. The first was that there was no evidence to support the Tribunal's decision. The second was that the Tribunal gave no reasons. In my opinion, both these submissions must be rejected.
While it is true that the Tribunal must act upon evidence and given reasons for its decision, that is not to say that the Tribunal is bound to find a particular percentage impairment where that percentage is supported by the medical evidence. In determining the question of impairment there will obviously be involved a question of judgment. In the present case it seems that the Tribunal was of the view that Ms Miles had exaggerated the extent of the impairment to the doctors. The Tribunal had observed Ms Miles and was entitled to take into account its observations in determining the percentage. Accordingly the present is not a case where the Tribunal acted without evidence but rather the Tribunal was entitled to take into account, as it did, its own observations. Its decision, which amounted to a matter of judgment, can not be thus attacked. Nor can it be said that the Tribunal failed to explain what it did in its reasons.
Whether the Tribunal failed to determine for itself whether there was permanent impairment prior to 1992
The final submission has caused me some difficulty. When the matter was before the Tribunal and after evidence had closed, counsel for Ms Miles pointed out to the Tribunal that the issue for determination was whether liability for compensation was to continue after 20 July 1992. It was emphasised that no application had been made to review previous determinations of compensation by Comcare and it was submitted that in the absence of any such application the previous determinations should be treated as properly made. So, it was said, that the Tribunal had to decide two questions, namely, whether Ms Miles did have an incapacity and, if so, whether that was the same incapacity in whole or in part as that for which compensation was paid up to July 1992. Counsel for Comcare reacted by submitting that there could be no estoppel in respect of the earlier administrative decisions. He submitted that the Tribunal had the power to reach its own view and that necessarily involved going back and looking at the totality of the work Ms Miles had done for her employer and reaching its own view.
In reply counsel for Ms Miles said the matter was one not of estoppel but of administrative fairness. It was submitted that no applicant should be put in a position of having to litigate matters in the past which did not appear to have been in issue. I reiterate that all of these submissions appear to have occurred after evidence had been concluded. That is to say the factual case appears to have been run on behalf of Ms Miles without the knowledge that Comcare proposed to reopen the entire working history of Ms Miles. In its reasons the Tribunal stated the issues for its consideration as being:
"iWhether the applicant continued to suffer from work related incapacity on and after 12 May 1992; and in particular 12-13 May 1992, 3-5 June and 8-12 June 1992;
iiWhether the applicant suffers permanent impairment; and if so,
iiiThe date from which the applicant would be eligible for compensation for injury resulting in permanent impairment."
The method of stating issue (i) rather suggests that the Tribunal accepted the submissions made on behalf of Ms Miles. Perhaps a better way of stating the issue would have been to ask whether the applicant, on and after 12 May 1992, was suffering a permanent impairment which was work-related, rather than putting emphasis upon a continuation from an accepted work-related incapacity existing as at 12 May 1992.
There is no suggestion in the Reasons that the Tribunal regarded Ms Miles' condition as being in any way the subject of an issue estoppel. Nor did the Tribunal suggest that there arose the sort of issues discussed at first instance by Einfeld J in Barker v Australian Telecommunications Commission (1990) 95 ALR 72, which issues were expressly left open by the Full Court on appeal from his Honour's judgment.
In the passage already quoted, the Tribunal noted that there was evidence before it of previous compensation being payable between 13 May 1984 and the time compensation ceased on 21 July 1992. However, it found for itself that Ms Miles had become incapacitated for work for certain periods from 1984 to 1992 and accepted the medical evidence upon which the Tribunal based its finding both that she was suffering work-related injury in May 1992 and that that condition continued up until the time of the hearing.
Although it may be possible to read the Tribunal's Reasons in the way suggested by counsel for the applicant, I think, on balance, that the Tribunal did make its own findings untrammelled by the conclusions which Comcare had reached in the past. In these circumstances, the suggested error, in my view, does not arise.
It follows that I would dismiss the appeal with costs. The orders that I would make are accordingly as follows:
Application dismissed.
Applicant to pay the respondent's costs of the application.
On the cross-appeal, set aside the decision of the Tribunal so far as no order was made as to costs and order that in lieu thereof it be ordered that the applicant, Comcare, pay Ms Miles' costs of the proceedings before the Tribunal as agreed or, if not agreed, as assessed by a Deputy Registrar of the Tribunal.
I certify that this and the
preceding seventeen (17) pages
are a true copy of the Reasons
for Judgment herein of his Honour
Justice Hill.
Associate:
Date: 13 April 1995
Counsel and Solicitors G Johnson instructed by
for Applicant: Australian Government Solicitor
Counsel and Solicitors LT Grey instructed by
for Respondent: Carroll & O'Dea
Date of Hearing: 16 March 1995
Date Judgment Delivered: 13 April 1995
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