FEDERAL COURT OF AUSTRALIA
Page v Telstra Corporation Limited [2003] FCA 478
WORKERS’ COMPENSATION - Commonwealth employees - entitlement to compensation for permanent impairment - Guide to the Assessment of the Degree of Permanent Impairment - Tables for musculo-skeletal system - Tables 9.1, 9.3, 9.4 - injury to fingers
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 24
Whittaker v Comcare (1998) 86 FCR 532 applied
Comcare v Fiedler [2001] FCA 1810 applied
Comcare v Van Grinsven [2002] FCAFC 87; FCA 371 appliedSUZANNE LEE PAGE v TELSTRA CORPORATION LIMITED
Q95 OF 2002COOPER J
BRISBANE
20 MAY 2003
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q95 OF 2002
BETWEEN:
SUZANNE LEE PAGE
APPLICANTAND:
TELSTRA CORPORATION LIMITED
RESPONDENTJUDGE:
COOPER J
DATE OF ORDER:
20 MAY 2003
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1. The application is dismissed.
2.The applicant to pay the respondent’s costs of and incidental to the application, including reserved costs, if any, to be taxed if not agreed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q95 OF 2002
BETWEEN:
SUZANNE LEE PAGE
APPLICANTAND:
TELSTRA CORPORATION LIMITED
RESPONDENT
JUDGE:
COOPER J
DATE:
20 MAY 2003
PLACE:
BRISBANE
REASONS FOR JUDGMENT
BACKGROUND
The applicant, on 23 July 1999, applied for lump sum compensation under s 24 and s 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) in respect of an injury sustained on 27 November 1992 in the course of her employment with Telstra Corporation Limited (“Telstra”) which she claimed had resulted in permanent impairment. The claim was rejected on 23 July 1999, and the applicant applied to the Administrative Appeals Tribunal (“the AAT”) for review of the decision to reject her claim. On 20 May 2002, the AAT affirmed the decision to reject her claim for compensation for permanent impairment. The applicant appeals to this Court pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”).
THE TRIBUNAL DECISION
The AAT made the following findings of fact:
“2. The applicant is a single woman who was born on 22 October 1953. She worked as an administration officer with the Respondent from 1985 to 1998.
3. As part of her duties, Ms Page was required to deliver goods to staff in the field at the Emerald Line Depot. On 27 November 1992, whilst getting into a work truck, she grabbed a handle to pull herself up and into the truck. She suddenly felt a severe burning pain in the back of her right hand.
4. As a result of the incident on 27 November 1992:
(a)Ms Page was off work from 27 November 1992 until 27 January 1993;
(b)On 17 December 1992, Dr Bulwinkel, orthopaedic surgeon, operated on Ms Page’s right hand to repair the tendons of her right ring and little fingers.
(c)Liability was accepted by the Respondent for both…
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- Case
- [2003] FCA 478
- Decision Date
CaseChat Overview and Summary
The primary legal issue was whether the AAT erred in its interpretation and application of the American Medical Association Guides to the Evaluation of Permanent Impairment in assessing the applicant's claim for compensation for permanent impairment. Specifically, the applicant argued that section 24(8) of the Act exempted finger injuries from the 10 percent threshold established by section 24(7), thereby entitling her to compensation. The court examined the AAT's findings and the evidence presented, including the medical reports and the application of the AMA Guides.
The court found that the AAT did not err in its assessment of the applicant's claim. The AAT correctly determined that the impairment in question was not solely due to the loss or loss of use of a finger, but rather a loss of function of the upper limb or upper extremity. Therefore, section 24(8) did not apply, and the 10 percent threshold in section 24(7) remained applicable. The AAT's findings that the applicant's impairment was due to a combination of her work-related injury and her pre-existing rheumatoid arthritis were supported by the evidence. The court concluded that the AAT's decision did not contain any reviewable error of law.
Consequently, the court dismissed the applicant's appeal and ordered that the applicant pay the respondent's costs of and incidental to the application.
Orders
Orders of the court
1. The application is dismissed.
2. The applicant to pay the respondent’s costs of and incidental to the application, including reserved costs, if any, to be taxed if not agreed.
Note:
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: COOPER J
None of the matters pleaded in the grounds of appeal, or agitated in argument by Counsel for the applicant with respect to the use of the Tables or as to the effect of the evidence on the use of the Tables, demonstrates reviewable error of law on the part of the AAT that justifies curial intervention. The only remaining ground relates to the alleged operation of s 24(8) of the Act.POSSIBLE OPERATION OF SECTION 24(8) Counsel for the applicant submitted that s 24(8) of the Act meant that injuries to fingers and toes were not subject to the 10 percent threshold established by s 24(7) of the Act. As the applicant injured three fingers in the course of her employment with Telstra and as it was the injury to those fingers which gave rise to the claim before the AAT, it was submitted that s 24(7) had no application to the circumstances of the applicant. Section 24(8)(a) of the Act provides that subsection (7) does not apply to “the impairment constituted by the loss, or the loss of the use, of a finger.” The section is to protect workers where there is an injury to a finger, eg the amputation of a little finger or ring finger, or a total loss of movement of a thumb joint which, under Table 9.3, only attract a percentage permanent impairment of the whole person of 5 percent. Absent s 24(8), injuries of that type would not attract a sufficient percentage impairment to entitle the worker to a lump sum payment of compensation for permanent impairment under s 24 of the Act. The original claim made by the applicant against Telstra (as appears from the medical report of Dr Bulwinkel forming part of the claim form) was for compensation for permanent impairment to the hand as a whole resulting from injuries to various parts of it. The case advanced by the applicant before the AAT and this Court was impairment constituted by the loss of limb function of an upper limb assessed under Table 9.4 Limb Function - Upper Limb (Percentage Whole Person Impairment). The evidence and submissions were directed to assessment under that Table. A claim assessed under Table 9.4 is a single assessment in respect of the limb as a whole, irrespective of the number or nature of the underlying injuries which give rise to it: Van Grinsven at [16] and [17]. An alternative argument was advanced in respect of impairment constituted by joint function impairment of an upper extremity to be assessed under Table 9.1. The applicant did not purport to advance a claim for impairment constituted by a partial loss of efficient use of one or more of the fingers of the right hand to be assessed individually under Table 9.3 and then combined using the Combined Values Table 14. Nor was any submission made on her behalf as to what the result of such a claim would have been on the evidence accepted by the AAT. In my view it cannot be said that the AAT erred in not treating the impairment which it found as the impairment constituted by the loss, or the loss of use of, a finger. The impairment found to exist was constituted by loss of function of the upper limb or upper extremity and was not an impairment to which s 24(8) applied. Accordingly, the threshold in s 24(7) of the Act continued to apply to the applicant’s claim.CONCLUSION