Page v Telstra Corporation Limited

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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 applied

SUZANNE LEE PAGE v TELSTRA CORPORATION LIMITED
Q95 OF 2002

COOPER J
BRISBANE
20 MAY 2003


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q95 OF 2002

BETWEEN:

SUZANNE LEE PAGE
APPLICANT

AND:

TELSTRA CORPORATION LIMITED
RESPONDENT

JUDGE:

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
APPLICANT

AND:

TELSTRA CORPORATION LIMITED
RESPONDENT

JUDGE:

COOPER J

DATE:

20 MAY 2003

PLACE:

BRISBANE

REASONS FOR JUDGMENT

BACKGROUND

  1. 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

  2. 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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Details
Case
[2003] FCA 478
Decision Date

CaseChat Overview and Summary

Page v Telstra Corporation Limited concerned the applicant's claim for lump sum compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) for permanent impairment resulting from an injury sustained in the course of employment with Telstra. The applicant, who had a history of rheumatoid arthritis, alleged that an incident in 1992, where she injured her right hand, led to permanent impairment that rendered her incapable of working. The Administrative Appeals Tribunal (AAT) rejected her claim for compensation, and the applicant sought judicial review of that decision.

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

Further, it was submitted that the evidence of Dr Macfarlane was in accordance with the Guide and the Principles of Assessment contained in it. Thus, it was submitted, no demonstrable error of law arising from the interpretation, or application, of the Guide was made out by the applicant.THE EVIDENCE OF DR MACFARLANE Dr Macfarlane gave a written report dated 17 February 1999. After examining the applicant’s right hand, Dr Macfarlane observed that there was loss of extension of all the fingers, especially the index and little fingers; the fusion of the thumb was “all right”; and the applicant felt pain in her wrist. He stated:“The right hand and wrist: there is ulnar drift of the right wrist with some pain on movement and some swelling present. The range is restricted as follows:Flexion 0 to 30 degrees Extension 0 to 50 degrees Radial deviation 0 to 10 degrees Ulnar deviation 0 degreesThe metacarpo-phalangeal joint of the right thumb has been fused in a neutral position with a 3cm scar over the dorsal aspect.There is a 5cm longitudinal surgical scar over the dorsal aspect of the metacarpo-phalangeal joint of the index finger where a joint replacement has been carried out. The little finger has lag of about 20 degrees of extension at the proximal interphalangeal joint.There is a 12cm surgical scar on the back of the right hand, curved in nature, well healed. In about the mid point of that scar the extensor tendons have been repaired and plicated and are prominent.Otherwise she has a full range of movement of her fingers and thumb, has good pinch grip and is able to finger to palm flex and make a fist without any problems....Diagnosis1. Generalised rheumatoid arthritis, particularly affecting the right hand and wrist, also shown on bone scan to be affecting the tarsal bones (small bones of the feet) and the right knee and left hand.2. A rupture of the extensor tendons to the right ring and little fingers, consistent with the accident of 1992.3. Gout related to the Methotrexate medication....Opinion and AssessmentThis patient has had an injury to her right hand with rupture of the extensor tendons to the ring and little fingers, consistent with the accident of 1992.(emphasis added)This has been superimposed on long-standing generalised rheumatoid arthritis as noted above.A secondary procedure was also required in 1993 owing to problems following the initial surgery.She also had further operation in June 1998 for further repair and plication of the extensor tendon to the little finger. At the same time joint replacement was carried out at the metacarpo-phalangeal joint of the right index finger. Xrays prior to this procedure show subluxation of that joint.In my opinion the problems related to that joint are due largely, if not completely, to her rheumatoid arthritis. There may have been some aggravation in the course of her work owing to difficulties using her right ring and little fingers, but primarily the problems with that joint in my opinion would relate to the rheumatoid arthritis and only to a relatively small amount due to aggravation by her work.(emphasis added)The other procedures on her feet do not relate.In reply to your queries:1. The position of the right hand and wrist is as follows:(a) Generalised rheumatoid arthritis;(b) A fused metacarpo-phalangeal joint right thumb;(c)Arthroplasty and iso-elastic replacement of the metacarpo-phalangeal joint of the index finger;(d)Plication and repair of the extensor tendons to the (ECD) tendons to the right ring and little fingers;(e)Ulnar drift of the wrist with loss of movement and some swelling.2.The conditions relating to the extensor tendons of the ring and little fingers directly relate to the injury of 27 November 1992.To a minor degree, the arthroplasty of the metacarpo-phalangeal joint of the right index finger relates secondarily to that injury due to her not being able to use ring and little fingers satisfactory post injury. The other problems in her hand do not relate.(emphasis added)3.The operation and plication on the right ring and little finger extensor tendons and the replacement of the metacarpo-phalangeal joint of the index finger have been successful.4.With regard to her total incapacity for work, the employment factors with the rupture of the extensor tendons to right ring and little fingers have contributed materially to that total incapacity. However, she herself states that she is unable to return to typing and using of a computer and to her previously senior administrative type work. She states that she does not wish to return to work to other office work, for example filing and making the tea in a more junior capacity.5.There is no reason seen for her being totally incapacitated for work since June 1998 and it would be expected that following such a procedure she would have been off work for two or three months at most, following which she could have returned to light work.6.She is unable to do too much in the way of repetitive work at a keyboard or computer, particularly with her right hand. Matters are expected to become gradually worse, particularly with regard to the right wrist. This relates to the generalised rheumatoid arthritis and is an ongoing matter.7.With regard to permanent impairment, after referring to the American Medical Association Guides, 4th Edition, there is in my opinion:(emphasis added)(a)With regard to the ring and little fingers: In the order of 10% (ten percent) loss of each of these fingers which converts to 2% (two percent) loss of the hand, 2% (two percent) of the upper extremity.(b)The right index finger: 61% (sixty-one percent) loss of the finger, converting to 12% (twelve percent) of the hand and 11% (eleven percent) of the upper extremity.Of this, it is considered reasonable to attribute 20% (twenty percent) to her work, leading to 2% (two percent) impairment of the upper extremity.(emphasis added)This then is 4% (four percent) impairment of the right arm due to her work, which converts to 2% (two percent) impairment of the whole person. This impairment is permanent.The other problems relating to the thumb and wrist are not related.The position is stationary and stable with regard to the 1992 injury, but further problems with the rheumatoid arthritis are anticipated.It is uncertain how long the replacement of the metacarpo-phalangeal joint of the right index finger will last, and further operation may be required in the future.Further operation on the extensor tendons right ring and little finger is not anticipated or indicated.Her medications with regard to rheumatoid arthritis and/or gout will require continuation. Further information should be obtained from her Rheumatologist if required.”

Decision

Reasons for decision

COOPER J
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 the time off work and for the costs of the surgery.(d)Ms Page returned to work on graduated duties and resumed full-time work on 12 February 1993.5. Ms Page’s normal work duties involved constant and repetitive keyboard work, doing time sheets, ordering stores and typing letters. She had a heavy keyboard load.6. The constant keyboard work aggravated Ms Page’s right hand injuries to such an extent that she had to stop working on 18 March 1993. She underwent secondary repair surgery on 19 March 1993. A tendon from her right foot was grafted onto her right hand. Also a joint in her right thumb was fused.7. Ms Page was off work from 18 March 1993 to 31 May 1993.8. The Respondent accepted liability for the secondary repair but not for the fusion of the joint of the right thumb.9. In May 1995, Ms Page was transferred to the Rockhampton office of Telstra. Her duties were not modified. She kept performing a substantial amount of keyboard work.10. In 1998 the condition of Ms Page’s right hand began to deteriorate again. She had further surgery by Dr Bulwinkel, in June 1998, involving repair to the right ring and little finger tendons with an open synovectomy of the joint of the right index finger.11. Ms Page was off work from 22 June 1998 until at least 9 July 2001.12. The Respondent accepted liability for the latest operation and time off work....14. The question of whether or not Ms Page has a compensable permanently impaired right hand due to the incident of climbing into the work truck in 1992, is complicated by the fact that she has been suffering from significant generalised rheumatoid arthritis since about 1984. Part of the impairment in her right hand is due to the work-related incident. The balance is due to non-work related rheumatoid arthritis.”

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