Comcare v Ticsay

[1992] FCA 701

Re: THE COMMISSION FOR SAFETY REHABILITATION COMPENSATION OF COMMONWEALTH
EMPLOYEES
And: JOSE TICSAY
No. V G126 of 1992
FED No. 701
Commonwealth Employees Compensation
(1992) 38 FCR 181
(1992) 28 ALD 311

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Olney J.(1)

CATCHWORDS

Commonwealth Employees Compensation - claim for permanent impairment resulting for partial amputation of two fingers - Statutory Guide to the Assessment of the Degree of Permanent Impairment - neither amputation compensable under table dealing with amputations - injury resulted in disability covered by another table - principles of construction of workers' compensation legislation - proper construction of Guide.

Commonwealth Employees' Rehabilitation and Compensation Act 1988, ss. 4(1), 14(1), 24, 27, 28

Administrative Appeals Tribunal Act 1975, s. 44(1)

Workers' Compensation Act 1915 (Vic.)

Workers' Compensation Act 1926 (NSW), s. 16

Thiele v The Commonwealth (1990) 95 ALR 172

Public Transport Commission of New South Wales v J. Murray-More (NSW) Pty Ltd (1975) 6 ALR 271

Arnold v Bartling (1919) VLR 293

Fraher v Wunderlich Ltd (1963) 110 CLR 466

Apps v Commissioner for Railways (1972) NSWLR 272

HEARING

MELBOURNE

#DATE 22:9:1992

Mr M. McInnes (instructed by Australian Government Solicitor) appeared for the applicant.

Mr D. Beard (instructed by Renwick Gaynor Kiddle Briggs) appeared for the respondent.

ORDER

THE COURT ORDERS THAT:

1. The application be dismissed;

2. The applicant pay the respondent's costs including any reserved costs, to be taxed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This appeal from the Administrative Appeals Tribunal (the Tribunal) raises a question relating to the construction of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (the Act) and the "Guide to the Assessment of the Degree of Permanent Impairment" (the Guide) prepared and approved pursuant to the Act. An appeal lies from the Tribunal to the Federal Court only on a question of law (Administrative Appeals Tribunal Act 1975, s. 44(1)). The particular question raised does not appear to have been the subject of previous judicial consideration.

The facts

1. The factual context in which the appeal arises is simple enough. On 15 January 1990, in the course of his employment with Australian Defence Industries, the respondent suffered an injury to the middle and index fingers of his right hand. The distal phalanx of the middle finger was amputated through the distal interphalangeal joint and the tip of the index finger was also amputated. The tips of the fingers were, to some extent, surgically repaired. As a result of the injury, the applicant has difficulty with digital dexterity.
   The claim

2. The respondent claimed compensation pursuant to section 24 of the Act for the permanent impairment resulting from his injury but his claim was denied, and upon internal review that decision was affirmed. The respondent then appealed to the Tribunal which set aside the decision and remitted the matter to the Commission for reconsideration in accordance with the directions that:
   

1. The injury suffered by the applicant on 15 January 1990 in the course of his employment with Australian Defence Industries resulted in a permanent impairment;

2. The respondent is liable to pay compensation to the applicant in respect of that injury pursuant to section 24 of the Commonwealth Employees' Rehabilitation and Compensation Act 1988; and

3. The amount of that compensation is 10 per centum of the maximum amount.

The appeal

1. The Commission's notice of appeal against the Tribunal's decision asserts that the following questions of law are raised, namely:
   

(a) Whether the Tribunal erred in applying Table 9.4 of the Guide to the Assessment of Permanent Impairment ("the Guide") prepared pursuant to sub-section 28(1) of the Commonwealth Employees Rehabilitation and Compensation Act 1988 ("the Act").

(b) Whether the Tribunal erred in finding that the Appellant was liable to pay compensation to the Respondent in respect of injury pursuant to Section 24 of the Act.

(c) Whether the Tribunal erred in finding that the amount of compensation is 10 per centum of the maximum amount.

1. The grounds of appeal are:
   

(a) That the Tribunal should have applied Table 9.3 of the Guide and erred in applying Table 9.4 of the Guide.

(b) The Tribunal erred in finding that the Appellant was liable to the Respondent pursuant to Section 24 of the Act.

(c) The Tribunal erred in finding that compensation was payable in the sum of 10 per centum of the maximum amount.

(d) The Tribunal erred in finding there were two constructions possible as to entitlement under the Guide and that the legislation should be interpreted beneficially so as to give the worker the benefit of the more favourable construction.

The Act

1. The Act is an act relating to the rehabilitation of Commonwealth employees and to workers' compensation for those employees and certain other persons, and for related purposes (long title).

2. The scheme of the Act is to render the Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees (the Commission - the respondent in these proceedings) liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment (s. 14(1)).

3. So far as presently relevant, "injury" is defined to mean an injury suffered by an employee, being a physical injury arising out of, or in the course of, the employee's employment, and "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 (s. 4(1)).

4. Division 4 of Part II of the Act deals with injuries resulting in impairment. The first section in Division 4 is section 24 which provides:
   

24. (1) Where an injury to an employee results in a permanent impairment, the Commission is liable to pay compensation to the employee in respect of the injury.

(2) For the purpose of determining whether an impairment is permanent, the Commission shall have regard to:

(a) the duration of the impairment;

(b) the likelihood of improvement in the employee's condition;

(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and

(d) any other relevant matters.

(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by the Commission under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.

(4) The amount assessed by the Commission shall be an amount that is the same percentage of the maximum amount as the percentage determined by the Commission under subsection

(5).

(5) The Commission shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.

(6) The degree of permanent impairment shall be expressed as a percentage.

(7) Subject to section 25, where the Commission determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section.

(8) Subsection (7) does not apply in relation to an impairment resulting from the loss, or injury to, a finger or toe.

(9) For the purposes of this section, the maximum amount is $80,000.

1. Provision is made in section 27 for the payment of compensation for non-economic loss in addition to that payable under section 24 by an employee who has sustained an injury that results in permanent impairment, but it is not necessary to consider those provisions as the respondent's claim under section 27 is dependant upon him establishing an entitlement under section 24.
   The Guide

2. The approved Guide referred to in subsection 24(5) means:
   

(a) the document, prepared by the Commission in accordance with section 28 under the title "Guide to the Assessment of the Degree of Permanent Impairment", that has been approved by the Minister and is for the time being in force; and

(b) if an instrument varying the document has been approved by the Minister - that document as so varied;

(Act, s. 4(1))

1. So far as is relevant, section 28 provides:
   

28. (1) The Commission may, from time to time, prepare a written document, to be called the "Guide to the Assessment of the Degree of Permanent Impairment", setting out:

(a) criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury shall be determined;

(b) criteria by reference to which the degree of non-economic loss suffered by an employee as a result of an injury or impairment shall be determined; and

(c) methods by which the degree of permanent impairment and the degree of non-economic loss, as determined under those criteria, shall be expressed as a percentage.

(2) ...

(3) ...

(4) Where the Commission, an administering authority or the Administrative Appeals Tribunal is required to assess or re-assess, or review the assessment or re-assessment of, the degree of permanent impairment of an employee resulting from an injury, or the degree of non-economic loss suffered by an employee, the provisions of the approved Guide are binding on the Commission, the administering authority or the Administrative Appeals Tribunal, as the case may be, in the carrying out of that assessment, re-assessment or review, and the assessment, re-assessment or review shall be made under the relevant provisions of the approved Guide.

(5) The percentage of permanent impairment or non-economic loss suffered by an employee as a result of an injury ascertained under the methods referred to in paragraph (1)(c) may be 0%.

(6) In preparing criteria for the purposes of paragraphs (1)(a) and (b), or in varying those criteria, the Commission shall have regard to medical opinion concerning the nature and effect (including possible effect) of the injury and the extent (if any) to which impairment resulting from the injury, or non-economic loss resulting from the injury or impairment, may reasonably be capable of being reduced or removed.

(7) ...

(8) ...

(9) ...

(10) ...

1. The Commission has in fact prepared a Guide pursuant to subsection 28(1) which has been duly approved. The Guide contains a Preface, an Introduction, a section dealing with Principles of Assessment and a Glossary which are followed by a series of tables divided into two parts. Part A contains 14 tables, the first 13 of which deal with the impairment to various categories of bodily parts and functions, while the fourteenth is a combined values chart which facilitates assessment where impairments are system or function based and a single injury or disease has given rise to multiple losses of functions. The combined values chart is of no relevance in these proceedings, nor are the tables in Part B of the Guide which relate to non-economic loss.

2. The Preface and Introduction to the Guide are largely explanatory of the changed philosophy of the Act as compared with earlier legislation. They have no bearing upon the construction of the tables. However, the following extract from the Introduction confirms, what is otherwise quite apparent, namely that the scheme of compensation for permanent impairment is an expansion upon the former so called table of maims which applied under the previous legislation:

3. The repealed Compensation (Commonwealth Government Employees) Act 1971, provided for the payment of lump sum compensation where an employee suffered the loss of, or loss of efficient use of, a part of the body or faculty as specified in a Table of Maims. The range of conditions compensated was exclusive and did not reflect the broad range of work related injuries and diseases.

4. The 1988 Act is based on the whole person concept and offers compensation for impairment of any body part, system or function, caused by or contributed to in a material degree by a work related injury.

5. Unlike payments made under the table of maims, payments for permanent impairment and non-economic loss are in addition to any entitlement to weekly payments for ongoing or future incapacity.
   (The reference to the table of maims is to the table of losses and percentages formerly found in subsection 39(4) of the 1971 Act.)

6. The Principles of Assessment and Glossary segments which precede Parts A and B of the Guide are said, in the Introduction, to contain information relevant to the interpretation and application of those parts but the only portion of that could be of relevance in these proceedings is the following paragraph from the Introduction:
   Fingers and Toes

7. Impairment relating to the loss or injury to a finger or toe refers not only to amputation or total loss of efficient use of the whole digit, but also to partial loss of efficient use of a digit.

8. Reference will be made to this passage later.

9. Sub-part 9 of Part A is headed "Musco-Skeletal System" and contains 6 Tables as follows:
   

9.1 Upper Extremity

9.2 Lower Extremity

9.3 Amputations and/or Total Loss of Function 9.4 Limb function - upper limb

9.5 Limb function - lower limb

9.6 Spine.

A uniform format has been adopted for each Table which indicates a percentage of whole person impairment for various physical conditions which are particularised under the heading "Description of Level of Impairment". I set out below the full text of Tables 9.3 and 9.4:

TABLE 9.3

Amputations and/or Total Loss of Function

(Percentage Whole Person Impairment)

% DESCRIPTION OF LEVEL OF IMPAIRMENT

5 Any ONE of the following:

. amputation of little finger

. amputation of ring finger

. total loss of movement of joint of thumb . amputation of terminal segment of thumb involving one third its flexor surface without loss of distal phalanx or joint . amputation of two phalanges or joints of forefinger . amputation of of (sic) two phalanges or joints of middle, ring or little fingers

. amputation of distal phalanx or joint of forefinger . amputation of distal phalanx or joint of great toe 10 Any ONE of the following:

. amputation of all toes

. amputation of great toe

. amputation of middle finger

. amputation of distal phalanx or joint of thumb 15 Any ONE of the following:

. mid-metatarsal amputation

. amputation of index finger

20 Any ONE of the following:

. partial amputation of the foot (Chopart) . amputation of the thumb

30 Any ONE of the following:

. amputation below knee with functional stump . amputation of ankle

. amputation of all fingers except thumb 40 Any ONE of the following:

. amputation above knee with functional stump . disarticulation at knee

. Gritti Stokes amputation

. amputation below knee with short stump (7.5 cm or less below intercondylar notch)

. disarticulation at hip joint

. amputation above knee with short stump (7.5 cm or less below tuber ischii)

50 Any ONE of the following:

. hemipelvectomy

. amputation of forearm distal to biceps tendon insertion . disarticulation at wrist joint

. mid-carpal or mid-metacarpal amputation of hand 60 Any ONE of the following:

. amputation between deltoid insertion and elbow . disarticulation at elbow

. amputation at of forearm proximal to biceps tendon insertion . disarticulation at shoulder

. amputation above deltoid insertion

70 Forequarter (upper)

NOTE: Impairment relating to the loss of or injury to a finger or toe refers not only to amputation or total loss of efficient use of the whole digit, but also to partial loss of efficient use of a digit.

TABLE 9.4

Limb Function - Upper Limb

(Percentage Whole Person Impairment)

% DESCRIPTION OF LEVEL OF IMPAIRMENT

10 Can use limb for self care AND grasping and holding BUT has difficulty with digital dexterity

20 Can use limb for self care BUT has NO digital dexterity OR has difficulties grasping and holding

30 Retains some use of limb BUT has difficulty with self care 40 Cannot use limb for self care

The Note to Table 9.3

1. The Note at the foot of Table 9.3 repeats the passage from the Introduction already quoted, but the function intended to be served by it is not immediately apparent. Construed literally it seems to equate the partial loss of the efficient use of a digit to amputation or total loss of efficient use, and, assuming the amputations suffered by the applicant have resulted in the partial loss of efficient use of the fingers involved, would entitle the respondent to compensation assessed on the basis of 10% for the injury to his middle finger and 15% for the injury to his index finger. And this for two amputations which are not specifically compensable as amputations.

2. The definition of 'impairment' in section 4(1) of the Act obviously encompasses the idea of partial loss of efficient use and such an impairment, if permanent, would be compensable under section 24. But to give the Note the only meaning which it is capable of having, would be to make a nonsense of most of what precedes it in the table. The Tribunal gave some consideration to the intended effect of the Note and was unable to give it any meaning in the context of the table. I share this view, which has not been challenged on appeal.
   The issue

3. This case concerns an employee who has suffered the amputation of portions of two fingers neither of which entitle him to compensation under Table 9.3, but who has been found, as a result of his injury to have difficulty with digital dexterity. The question is whether he is entitled to be compensated under Table 9.4. The issue is quite different from that which would arise if the amputations were covered by Table 9.3 and also caused digital dexterity.

4. For the Commission it is said that the only amputations for which compensation is payable are those described in Table 9.3, so that even if, by reason of a non-compensable amputation, an employee suffers difficulty with digital dexterity he is not entitled to compensation under Table 9.4. The contrary view advocated on behalf of the applicant, and that adopted by the Tribunal, is that an impairment which coincides with the description of an impairment in Table 9.4 is compensable under that table.
   Construing the Guide

5. In so far as it is relevant to this case, the function of the Guide is to set out:
   

Criteria by reference to which the degree of the permanent impairme nt o an employee resulting from an injury shall be determined. (s. 28(1)(a))

1. The liability to pay compensation to an employee for an injury which results in a permanent impairment is established by subsection 24(1). The amount of compensation payable is determined according to the degree of permanent impairment of the employee assessed as a percentage under the provisions of the Guide (s. 24(4), (5) and (6)). As a matter of policy, certain impairments are not compensable, namely, an impairment which is determined to be less than 10%, unless it be an impairment resulting from the loss of, or injury to, a finger or toe (s. 24(7), (8)).

2. In its reasons the Tribunal canvassed in some detail the authorities relating the proper approach to be adopted to the construction of workers' compensation legislation. The first principle established by the authorities is clearly stated by Hill J in Thiele v The Commonwealth (1990) 95 ALR 172 at p 177 when he said in relation to the precursor of the Act:
   

The present legislation is socially remedial legislation intended to benefit workers and should be given a construction which advances its purposes as such. Thus where two constructions are possible, that which is favourable to the worker should be preferred: Wilson v Wilson's Tile Works Pty Ltd (1960) 104 CLR 328 at 335 per Fullagar J.

1. Reference was also made to the dictum of Gibbs J (as he then was) in Public Transport Commission of New South Wales v J. Murray-More (NSW) Pty Ltd (1975) 6 ALR 271, at 282:
   

(W)here two meanings are open, ..., it is proper to adopt that meaning that will avoid consequences that appear irrational and unjust.

1. Having regard to definition of the term "impairment", to the provisions of sections 14 and 24, and to the particular purpose of the Guide as provided in subsection 28(1), it seems that the legislative policy of the Act is to provide for the payment of compensation to an employee who has suffered an injury resulting in a permanent impairment. The Guide should be construed and applied in aid of the general statutory purpose, not as a means of limiting it. However, the Commission seeks a construction of the first item in Table 9.4 (which is the one applied by the Tribunal) as if the words "not resulting from the amputation of a finger or part thereof" were added to the description of the impairment.
   Conclusion

2. Counsel for the Commission argues strongly that to apply the Guide in a manner that admits of compensation assessed at 10% of whole person impairment to be recovered for two minor amputations, neither of which qualify for compensation as amputations (as presumably the level of impairment of each is considered to be less than 5%) is to adopt a meaning that leads to consequences that appear irrational and unjust, and should be avoided.

3. On the other hand, counsel for the respondent argues that the facts as found entitle the respondent to be compensated for an impairment described as:
   

Can use limb for self care and grasping and holding but has difficulty with digital dexterity.

1. In my view, the irrational and unjust result complained of by the Commission is more apparent than real. Purely by way of example, assume that the respondent did not suffer any amputation at all but nevertheless, as a result of his injury, was left with the same degree of digital dexterity. Presumably there would be no question as to his entitlement to compensation at the rate of 10% under Table 9.4. If that is the case, and counsel agreed that it would be so, it would appear to be equally irrational and unjust to deny compensation merely because the injury has resulted in amputation. There seems to be scope for the Guide to produce results which appear to be anomalous, but if that is so, it is inherent in the Tables.

2. In my opinion, Table 9.3 in so far as it deals with amputations, deals only with those amputations which are referred to in it and there is some authority for this approach. In Arnold v Bartling (1919) VLR 293 the injured worker had sustained an amputation of part of a finger which was not specifically compensable under the 4th Schedule to the Workers' Compensation Act 1915 (Vic.) which had a function similar to that of the tables in the Guide. On appeal from the determination of an arbitrator the Full Court of the Supreme Court of Victoria held that the measures of compensation provided by the Schedule were applicable only in assessing injuries falling expressly and literally within the provisions of the Schedule itself, and in cases not within the Schedule, compensation could be recovered under another relevant section of the Act. Although the facts and the legislative framework differ considerably, the two cases are roughly comparable. The decision in Arnold v Bartling expresses a principle which is consistent with the general approach that has been adopted towards workers' compensation for over a century. Furthermore, the decision was expressly approved in Fraher v Wunderlich Ltd (1963) 110 CLR 466 (per Menzies J at p 483 and p 488) and by the NSW Court of Appeal in Apps v Commissioner for Railways (1972) NSWLR 272 (per Sugerman P at p 274). In the latter case, which had to do with a claim for compensation in respect of amputations of parts of fingers which were not specifically mentioned in the table of injuries set out in section 16 of the NSW Workers' Compensation Act 1926, the Court held that the injury was compensable on the basis that it involved "loss of lower part of either arm, either hand, or five fingers of either hand" which was specifically mentioned. At p 274 Sugerman P said:

3. There is not to be found in the table in s. 16 any reference, under the heading of "Nature of Injury" to any such injury as, for example, "the loss of two joints of each of two fingers". But our Act by sub-s. (4) and (5) of s. 16, which I have already quoted, makes what I think is better provision than did the Victorian Act for cases of injuries not specifically mentioned. In particular sub-s. (5) does so by way of providing for the loss of the efficient use of some bodily organ, either, in my view, by physical deprivation of portion of that organ, so that its efficient use as a whole is diminished, or by such other means as, for example, a partial paralysis of the whole organ, and for the taking in such cases of a percentage. In my opinion, in the absence of any specific reference in the table to such an injury as "the loss of two joints of each of two fingers", the compensation to which the applicant is entitled was correctly calculated by taking that portion of the table which refers to the lower part of an arm and assessing the percentage of the diminution of its full efficient use as a result of the deprivation of two joints of each of two of its fingers, the percentage being assessed, as it was in this case, by a Medical Board convened by the Commission. In short, where an injury not specified in the table takes the form of the loss of an organ or organs forming part of a larger organ whose loss is specifically mentioned, the compensation is the percentage of the diminution of the full efficient use of the larger organ which the loss of the part or parts represents.

4. In my opinion the construction of the Act and the Guide adopted by the Tribunal was in accord with the literal meaning of the legislation and consistent both with the policy of the Act and with established authority in relation to relevantly similar legislation. No error of law has been demonstrated. The appeal will be dismissed.