Gullo, Grace v Comcare

[1997] FCA 662

FEDERAL COURT OF AUSTRALIA

Compensation - whether Tribunal erred in law in failing to determine that the applicant had a continuing partial incapacity, consistent with its own findings.

Safety, Rehabilitation and Compensation Act 1988, ss 4, 14, 16, 19

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

GRACE GULLO v COMCARE

NG 848 of 1996

JUDGE:	BEAUMONT J
PLACE:	SYDNEY
DATED:	24 JUNE 1997

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	)  NG 848 of 1996
)
GENERAL DIVISION	)

BETWEEN:	GRACE GULLO Applicant
AND:	COMCARE Respondent

JUDGE:	BEAUMONT J
PLACE:	SYDNEY
DATED:	24 JUNE 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The appeal be allowed.

1. The decision of the Administrative Appeals Tribunal be varied by adding the words "and thereafter" to the sentence “This injury resulted in an incapacity for work from the date of the injury until 8 July 1995”.

1. The respondent pay the applicant's costs before the Tribunal.

1. The matter be remitted to the respondent for determinations pursuant to s 19 of the Safety Rehabilitation and Compensation Act 1988 of the amount of weekly compensation payable to the applicant.

1. The respondent pay the applicant's costs of the appeal.

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	)   NG 848 of 1996
)
GENERAL DIVISION	)

BETWEEN:	GRACE GULLO Applicant
AND:	COMCARE Respondent

JUDGE:	BEAUMONT
PLACE:	SYDNEY
DATED:	24 JUNE 1997

REASONS FOR JUDGMENT

BACKGROUND

The applicant claimed that the respondent, Comcare, was liable to pay her compensation under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) in respect of an injury suffered while she was employed by Australian Defence Industries (“ADI”). The respondent decided she was not so entitled. The applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for a review of the respondent's decision. The Tribunal decided that the respondent's decision should be set aside and replaced with the following: First, that the applicant did suffer an injury at the ADI munitions factory on 22 September 1993 in accordance with s 4 of the Act; second, that this injury caused an incapacity for work from the date of injury until 8 July 1995; and thirdly, that the matter should be referred back to the respondent for assessment of any permanent impairment. The applicant now appeals to this Court from part of this decision. In order to understand the issues that arise in the appeal it will be necessary to refer to relevant aspects of the statutory scheme and to the material parts of the Tribunal's reasons.

THE STATUTORY SCHEME

By s 14(1) of the Act, it is provided that, subject to Part II of the Act:

“[The respondent] is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”

By s 16(1) of the Act, where an employee suffers an injury, the respondent is liable to pay compensation for medical expenses in the manner there provided. By s 19(1) it is provided that s 19, with some exceptions which are not now material, applies to an employee who is incapacitated for work as a result of an injury. “Injury” is defined in s 4(1) of the Act but it is not now necessary to refer to this definition.

Section 19(2) is in the following terms:

“(2)     Subject to this Part, Comcare is liable to pay compensation to the employee in respect of the injury, for each of the first 45 weeks (whether consecutive or otherwise) during which the employee is incapacitated, of an amount calculated under the formula:

NWE - AE

where:
NWE is the amount of the employee’s normal weekly earnings;  and
AE is the amount per week (if any) that the employee is able to earn in suitable employment.”

By s 19(3) it is provided:

“(3)Subject to this Part, Comcare is liable to pay to the employee, in respect of the injury, for each week during which the employee is incapacitated, other than a week referred to in subsection (2), compensation:

(a)where the employee is not employed during that week - of an amount equal to 75% of his or her normal weekly earnings less the amount (if any) that he or she was able to earn during that week in suitable employment;

(b)where the employee is employed for 25% or less of his or her normal weekly hours during that week - of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 80% of his or her normal weekly earnings;

....”

It is not necessary here to set out in full the other progressive provisions of s 19(3)(c), (d), (e) and (f). By s 19(4)(a) and (b) it is provided:

“(4)     In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:

(a)where the employee is in employment - the amount per week that the employee is earning in that employment;

(b)where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer - the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;

...”

Here also it is not necessary to set out in full the other progressive provisions of s 19(4)(c), (d), (e), (f) and (g). However, it may be noted that there is a statutory definition in s 4(1) of the term "suitable employment".

THE REASONS FOR THE TRIBUNAL'S DECISION

The Tribunal introduced its reasons as follows:

“4....the Applicant worked in a fruit shop for a few months, and then commenced work as a machinist in a factory.  On 17 November 1980 she started work with the Australian Defence Industries (ADI) at St Marys as a process worker.  Mrs Gullo left the munitions factory on 24 September 1993, when a large number of employees were made redundant when the factory was closed down.  She obtained another position as a machinist at Marrs Fabrics, commencing immediately after finishing work with ADI.  The Applicant gave evidence that she was able to work in her new position for only two days, and that intense pain in her lower back was such that she could not continue, either in a sitting or a standing position.  The Applicant has not worked since.

5.In 1990, while working for ADI in the ‘dets and caps’ department, the Applicant experienced some pain in her shoulders.  That pain arose from her having to stretch her arms around the safety shield to do her work.  The pain started with her right shoulder, and progressed to the other shoulder, and also to her neck.  A claim for compensation was made at that time, and she was given slightly different duties (light duties), and allowed to stop to exercise periodically during the day.  Medical certificates were furnished to the nurse, Ms Christeda Eleponga, who also supervised her exercises.  Mrs Gullo had pain tablets and cream for her back which she used regularly.

6.The Applicant gave evidence that on 22 September 1993 (ie two days before she was to finish work at ADI), she was working at a bench lacquering fuses.  She pushed a box, in an effort to make some more room on the bench for herself, when she felt a sharp pain in her right leg and the right side of her lower back.  She stopped working and took some pain killers;  however the pain persisted...."

The Tribunal then addressed the question "Did the applicant suffer an injury at work?"  After reviewing the evidence, the Tribunal said:

"It seems that the Applicant did not furnish a history of trauma to Dr Sengupta;  however he was prepared to accept that it did occur and was consistent with the actual injury."

The Tribunal next addressed the question "Did the accident occur at work at ADI?"  In considering the credibility of the applicant's case the Tribunal said (at para 20):

"...

(g)In the end result the Tribunal must come to a decision as to whether the Applicant’s evidence is or is not credible and has come to the conclusion (not without some hesitation on the part of two of the members including the Senior Member) that factors previously referred to are sufficient to explain behaviour and contradictions which might in an educated person fluent in English have led to a different decision.  The very fact that the Applicant was an unsatisfactory employee according to her supervisor (although in her evidence any suggestions to this effect were resisted) could well have given rise to an initial reluctance on her part to bring a further complaint.

(h)The applicant was cross-examined at considerable length by Ms Sharp and taking into account the Applicant’s difficulties with English her evidence was not seriously discredited.  It is in these circumstances that we believe that the better decision should go in her favour but not as to all aspects.  In particular the Applicant’s evidence that she remains incapacitated cannot be accepted in the light of the medical evidence that she could have returned to employment in July 1995.  The Applicant’s evidence on this latter aspect is indicative of a reluctance to work.  But it does not mean that she did not suffer an injury as alleged."

The Tribunal proceeded to then address the question "Did that injury cause incapacity for work?”  Under the sub-heading "Medical History", the Tribunal said:

"21.Mrs Gullo has a history of neck and shoulder pain, for which she received compensation.  Dr Howe and Dr Gayed had been her treating doctors."

The Tribunal went on to describe aspects of the applicant's medical history and said:

“22.From time to time, Dr Gayed would write Mrs Gullo a medical certificate from 1991 until she left ADI in 1993...  He also had advised that she perform light duties for ‘some years’ but in January 1992, Mrs Gullo requested that she resume normal duties.  It was unclear during the hearing whether the request was made because it would later result in a larger redundancy package, being based on weekly wages earned or that she was afraid that those on lighter duties would be the first to be made redundant...  The issue is of no relevance.”

The Tribunal next turned to the issue “Causation of present condition” and stated:

“23.The Tribunal must determine the effect of the incident at work, and if in fact the injury caused incapacity for work.  The Applicant denies having any history of lower back pain prior to the injury, and there was no evidence to suggest otherwise.  Following the injury, Mrs Gullo reported considerable pain to a number of people, as described previously, and eventually visited her doctor on 5 October 1993.”

The Tribunal then considered further aspects of the applicant's medical history and said:

“29.... The fact that Mrs Gullo may have had a degenerative disk, making prolapse more likely does not preclude the finding that it was the pushing of a box that was a significant causal factor in the actual protrusion.  It must be noted that for the Tribunal to find a causal link, the incident at work need not be the only relevant causal factor but a causal factor.

30.As a matter of causation, the Tribunal finds that the incident at work did cause the development of severe lower back pain, which prevented the Applicant from starting her new job at Marrs Fabrics, or indeed carrying out for some time any job which required long periods of standing or sitting.”

The Tribunal next posed the question “Do the symptoms persist? ” and said:

“31.The Applicant claims that she is incapable of performing any type of work.  While it is clear that the accident caused the Applicant pain and an incapacity to work, the question before the Tribunal is whether that incapacity still persists.  Evidence was given by a number of doctors that she would be unable to perform her previous job of working on a production line unless she was able to get up and move.  Dr Brooks advised that

‘she not be required to lift more than 10 kg and not be involved in repetitive lifting or lifting in awkward restricted situations.  She should be free to sit and stand and change her position frequently and thus sitting on a production line may be inappropriate.’

Dr Howe notes in his letter of 20 February 1995 that it would be

‘prudent to restrict her work activities so that she is no[t] bending or lifting.  Sedentary work should be appropriate.’

Dr Brooks also notes in his report dated 21 July 1995 that Mrs Gullo can not carry heavy parcels, and can only carry out minimal housework.”

After further reviewing the expert medical opinion evidence, the Tribunal referred (at para 33) to the evidence of Dr Gayed, the applicant's general practitioner, as follows:

“.... However, upon being asked during the hearing whether he thought that the Applicant would be able to do some other kind of full-time work he replied:

‘Well, with the lower back pain and neck pain, it’s one of the big problems and it’s a very unbearable - and therefore you can’t.  You can’t put someone in a job of a shop or factory.’

Dr Gayed tried to clarify the inconsistency by stating

‘I said in my earlier, sir, that any repetitive movement which can irritate the neck or back, that can create pain continuously so that job will not be suitable for her.’

He then stated

‘I’ll agree with sedentary work, where the person can sit for 2 hours and say move around for half an hour or 15 minutes, and continue again.’”

The Tribunal then said:

“34.The Tribunal considers that the Applicant has recovered sufficiently to perform sedentary work.  Having regard to the report of the treating specialist, Dr Sengupta, dated 8 July 1995, and the fact that Dr Gayed the treating doctor concurs, the Tribunal considers that 8 July 1995 is the appropriate date.  The Tribunal notes that it finds that this is the appropriate date because unfortunately there was no reassessment between the report of Dr Sengupta dated 5 April 1994, and his report of 8 July 1995.  It may be that the fixing of the 8 July 1995 date is generous to the Applicant but there is no other date which emerges from the evidence.  It is noted in this context that there was considerable improvement between these two dates;  most notable was the absence and then presence of the ankle jerk.  The ankle jerk was accepted by all the doctors as a clinical indicator of recovery.”

THE TRIBUNAL'S CONCLUSION AND DECISION

The Tribunal expressed its conclusion:

“35.In conclusion, the Tribunal finds that the decision under review should be overturned and replaced with the following: that Mrs Gullo did suffer an injury at the munitions factory on 22 September 1993, in accordance with s4 of the Safety Rehabilitation and Compensation Act 1988.  This injury caused an incapacity for work from the date of the injury until 8 July 1955.  The Tribunal refers the matter back to Comcare for assessment of any permanent impairment.”

The formal decision of the Tribunal was then expressed as follows:

“The Tribunal finds that the Applicant suffered an injury on 22 September 1993 at work in accordance with s4 of the Safety Rehabilitation and Compensation Act 1988 (‘the Act’). This injury resulted in an incapacity for work from the date of the injury until 8 July 1995. The Applicant is therefore entitled to compensation under s14(1) of the Act.”

THE APPLICANT'S GROUNDS OF APPEAL

By its notice of appeal, the applicant appeals from the Tribunal's decision whereby the Tribunal decided or determined that the applicant's injury caused an incapacity for work, which ceased on 8 July 1995.

The notice of appeal proceeds to state what the applicant contends to be the questions of law raised on the appeal.  The notice of appeal later states that the grounds of appeal are as specified under these questions of law.  It will be convenient then to set out the questions of law so stated as follows:

“2.1That the determination that the applicant’s incapacity for work ceased on 8 July, 1995 is against the evidence and against the weight of the evidence.

2.2That the Tribunal erred in law in that the determination that the applicant’s incapacity for work ceased on 8 July, 1995 is inconsistent with the facts as found by the Tribunal.

2.3That the Tribunal erred in law in failing to determine that the applicant had a continuing partial incapacity, consistent with its own findings.

2.4That the Tribunal erred in law in failing to perform its task in that it failed to make a determination as to the costs of the proceedings.

2.5That the Tribunal failed to perform its duty in failing to order that the matter be returned to Comcare for assessment of any weekly payments due to the applicant.

2.6That the Tribunal having expressly found the applicant fit only for sedentary work, ought therefore to have found a partial incapacity in the light of:

(a)The uncontradicted evidence that pre-injury occupation was not sedentary but involved standing at a process line and included a range of activities including heavy activities;  and

(b)That as a matter of common experience, the open market of jobs reasonably accessible to the applicant (putting to one side the actual pre-injury job) involved work not confined to sedentary work;  and

(c)That given the applicant’s background, language skills and injury, she was disadvantaged on the open labour market.”

In the notice of appeal, the following orders were sought:

“1.That the injury caused total incapacity for work until 8 July, 1995 and partial incapacity thereafter.

2.The matter be referred back to Comcare for assessment of entitlement to any weekly payment and any permanent impairment.”

CONCLUSIONS ON THE APPEAL

This Court's jurisdiction can, of course, only be enlivened if an error of law has been demonstrated.  In this connection, I was referred to the following observations of Glass JA in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 (at 156-7):

"It has been suggested that since judges unlike juries are required to give reasons a perversity of result will or may suggest an error at some stage of the reasoning process and the perversity will then rise to the level of an error of law.  It is important, I believe, to remember that whether an error is one of fact or law is determined by legal theory and the theory is the same whether the tribunal be divided or undivided.  Errors may be committed by a Workers’ Compensation judge at any one of three points viz determining the facts by way of primary findings and inferences, directing himself as to the law and applying the law to the facts found.  At the first stage the determination of facts by a reasoning process marred though it be by patent error, illogicality or perversity will, as has been said, never be vulnerable to attack as an error of law by an applicant for compensation.  At the second stage any error made will by definition be an error of law.  At the third stage when the law correctly stated is applied to the facts found in order to produce a conclusion error may intrude again.  An erroneous conclusion that facts properly determined fail to satisfy a statutory test, for example, injury arising out of the cause of employment, substantial interruption to journey, or failure to provide suitable employment will ordinarily be an erroneous conclusion of fact.  It is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open... Accordingly this Court will not entertain unexplained perversity of result as a ground for intervention although it will correct perverse or unreasonable applications of law to the facts found."

Whilst his Honour's observations were directed to the provisions of State legislation, they are, in my respectful opinion, not only correct, but equally applicable in the present case.  As I read the reasons of the Tribunal, and followed their process of reasoning, the Tribunal found not only that the applicant had suffered an injury at work in the manner she described in her evidence, but also that she had recovered from the incapacity resulting from that injury, to some extent, by 8 July 1995, but had not completely recovered.  This appears plainly, as I read it, from the statements made and conclusions expressed by the Tribunal in paras 30 and 34.

As has been seen, in para 30 the Tribunal stated its finding:

“...that the incident at work did cause the development of severe lower back pain, which prevented the Applicant from starting her new job at Marrs Fabrics, or indeed carrying out for some time any job which required long periods of standing or sitting.”

And this statement was followed by the statement in para 34 of the Tribunal's reasons that:

“The Tribunal considers that the Applicant has recovered sufficiently to perform sedentary work.”

However, when the Tribunal came to express its conclusion in para 35, it made no mention of the possibility of an entitlement to compensation on the part of the applicant, nor of a correlative liability on the part of the respondent to pay compensation, in respect of any loss of earning capacity arising out of the circumstance that, whereas prior to the accident and injury in September 1993, the applicant had the capacity to perform work other than sedentary work, even after 8 July 1995, the capacity of the applicant was still limited to sedentary work.  Whether the Tribunal meant to make or express a finding or conclusions on this question, is not clear. 

It will have been noted that, in expressing its conclusion in para 35, the Tribunal went on to refer the matter back to the respondent for assessment of any permanent impairment. However, it has been seen in the expression of its formal decision, that the Tribunal found that the applicant suffered an injury at work and further found that the injury resulted in an incapacity until 8 July 1995 and that “the applicant is therefore entitled to compensation under s 14(1) of the Act.” Again, it is not clear whether the Tribunal intended, in that conclusion, to refer the matter back to the respondent for any particular purpose.

Generally speaking, whilst the reasons for a decision cannot, effectively, contradict the terms of the decision, when those terms are expressed in a formal sense, it is, nonetheless, open to a Court to interpret the terms of a decision that are ambiguous by reference to their context provided in the reasons for that decision.  However, I need not pursue these questions of interpretation in the present case.  It seems to me to be clear that the Tribunal intended to make, and did, in fact, make two separate findings:  (1) a finding that was, in effect, a finding of total incapacity up to 8 July 1995;  (2) a finding that was, in effect, a finding of partial incapacity thereafter.  It was, equally, clearly the intention of the Tribunal that the question of the calculation of the compensation would be a matter for the respondent, subject, of course, to any statutory right of review.

On behalf of the respondent, it is now submitted that reference to the evidence given before the Tribunal indicates that its finding in para 34 that the applicant can perform only sedentary work is not justified;   and that, in any event, there was evidence and, indeed, the Tribunal intended to hold, that the position of the applicant, before the accident and after 8 July was, in terms of her capacity to work, the same.  The applicant was able after 8 July 1995, so the respondent’s argument runs, to perform the same kind of work that she was previously performing in the ADI factory.  It is true, the respondent says, that, by reason of another injury with which we are not concerned, the applicant at some stage had been on light duties at the factory, but it is not seriously open to question, on the findings made by the Tribunal, that she return from light duties to her ordinary work some two months before the accident. 

In my opinion, the matters sought now to be agitated, on behalf of the respondent, are really an attempt to invite the Court to embark upon an independent fact-finding exercise which is clearly beyond the Court’s jurisdiction.  Given the findings of fact made by the Tribunal, it must follow, in my view, as a matter of law, that the Tribunal should have made orders consequent upon the two separate findings which it made and which I have summarised above.  The first finding being one, in effect, of total incapacity until 8 July 1995; the second finding being one, in effect, of partial incapacity after 8 July 1995.  However, in its conclusion and in the form of its decision, the Tribunal did not, expressly at least, make a decision dealing with what I have described as the partial incapacity aspect.

It further must follow that the appeal should be allowed and that the decision of the Tribunal be varied accordingly.  I would add that it is not now in dispute that the applicant had a statutory entitlement to costs before the Tribunal.  I make the following orders:

1. Appeal be allowed.

1. Vary the decision of the Administrative Appeals Tribunal by adding the words "and thereafter" to the sentence         “This injury resulted in an incapacity for work from the date of the injury until 8 July 1995”.

1. The respondent pay the applicant's costs before the Tribunal.

1. The matter be remitted to the respondent for determinations pursuant to s 19 of the Safety Rehabilitation and Compensation Act of the amount of weekly compensation payable to the applicant.

1. The respondent pay the applicant's costs of the appeal.

I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont

Associate:

Dated:            24 June 1997

Counsel for the Applicant:	L King SC and J T Kearney
Solicitor for the Applicant:	John R De Mattia & Co
Counsel for the Respondent:	P Sharp
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	24 June 1997
Date of Judgment:	24 June 1997