Page v Telstra Corporation Ltd

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FEDERAL COURT OF AUSTRALIA

Page v Telstra Corporation Ltd [2004] FCAFC 80

WORKERS’ COMPENSATION – Commonwealth employees - compensation for permanent impairment – whether partial loss of use of a finger is included within the scope of the exemption provided by s 24(8)(a) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – use of the Tables in the Guide to the Assessment of the Degree of Permanent Impairment in determining the application of s 24(8)

Acts Interpretation Act 1901 (Cth) s 15AB
Administrative Appeals Tribunal Act 1975 (Cth) s 44
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 28, 24(8)(a), 24, 24(7), 24(8) 4, 5, 6, 27

Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Ticsay (1992) 38 FCR 181 approved
Whittaker v Comcare (1998) 86 FCR 532 followed

SUZANNE LEE PAGE v TELSTRA CORPORATION LTD
Q85 of 2003

KIEFEL, RD NICHOLSON, NORTH JJ
BRISBANE
30 MARCH 2004


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q85 OF 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

SUZANNE LEE PAGE
APPELLANT

AND:

TELSTRA CORPORATION LTD
RESPONDENT

JUDGES:

KIEFEL, RD NICHOLSON, NORTH JJ

DATE OF ORDER:

30 MARCH 2004

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.Leave is granted to the appellant to bring the appeal out of time.

2.The appeal is allowed.

3.The decision of the Administrative Appeals Tribunal, made on 29 May 2002, is set aside.

4.The appellant’s application for compensation is remitted to the Administrative Appeals Tribunal for determination in accordance with these reasons.

5.The respondent is to pay the appellant’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

QUEENSLAND DISTRICT REGISTRY

Q85 OF 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

SUZANNE LEE PAGE
APPELLANT

AND:

TELSTRA CORPORATION LTD
RESPONDENT

JUDGES:

KIEFEL, RD NICHOLSON, NORTH JJ

DATE:

30 MARCH 2004

PLACE:

BRISBANE

REASONS FOR JUDGMENT

KIEFEL J:

  1. I have had the advantage of reading the reasons for judgment of Nicholson J and North J.  I agree that an extension of time should be granted for the bringing of the appeal.  I regret that otherwise I am unable to agree with the orders proposed. 

  2. Before his Honour the primary Judge there were raised two principal issues. The first concerned the use of the Tables in the Guide to the Assessment of the Degree of Permanent Impairment approved under s 28 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). The second concerned the extent of the exemption provided by s 24(8)(a).

  3. His Honour observed that the appellant was able to seek assessment of the permanent impairment to her whole person, for the purposes of s 24, by reference to Tables 9.1, 9.3 and 9.4.  The assessment under Table 9.1 would require the soft tissue injuries to the ring and little fingers of the right hand to be disregarded.  The appellant had therefore sought assessment of…

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Details
Case
[2004] FCAFC 80
Decision Date

CaseChat Overview and Summary

Page v Telstra Corporation Ltd involved the appellant, who had suffered a work-related injury to her right hand, claiming compensation for permanent impairment from the respondent, Telstra Corporation Ltd. The appellant argued that her condition exceeded the ten percent threshold for compensation or that the threshold did not apply as her case involved the loss of use of three fingers, thus falling under s 24(8)(a) of the relevant legislation. The Administrative Appeals Tribunal (AAT) had previously rejected the appellant's claims, leading to this appeal to the court.

The central legal issue was the interpretation and application of s 24(8)(a) of the Safety, Rehabilitation and Compensation Act. The court had to determine whether the appellant’s claim, based on the loss of use of fingers rather than their specific loss, fell within the scope of the provision. The court also needed to consider whether the ten percent threshold applied to the appellant's case and, if not, whether her claim was valid under s 24(8)(a). Additionally, the court had to assess whether the primary judge correctly ruled on the argument that the appellant's claim was for the loss of use of fingers, as opposed to their specific loss.

The court found that the primary judge had erred in not addressing the argument that the appellant's claim was for the loss of use of fingers, which was explicitly covered under s 24(8)(a). The court held that the appellant's claim, based on the loss of use of her fingers, should have been considered under this provision. Furthermore, the court disagreed with the primary judge’s interpretation of s 24(8)(a), which required an injury to a finger to attract a percentage impairment of the whole person of 5 percent. The court clarified that the provision applied to impairments resulting from the loss of use of a finger, not just the specific loss of fingers. Consequently, the court set aside the AAT's decision and remitted the appellant's application for compensation to the AAT for redetermination in light of these findings.

The court's final orders included granting the appellant leave to bring the appeal out of time, allowing the appeal, setting aside the AAT's decision, remitting the appellant's application for compensation to the AAT, and directing the respondent to pay the appellant’s costs of the appeal.

Orders

Orders of the court

1. Leave is granted to the appellant to bring the appeal out of time.

2. The appeal is allowed.

3. The decision of the Administrative Appeals Tribunal, made on 29 May 2002, is set aside.

4. The appellant’s application for compensation is remitted to the Administrative Appeals Tribunal for determination in accordance with these reasons.

5. The respondent is to pay the appellant’s costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In 1998, the condition of the appellant’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, together with an open synovectomy of the joint of the right index finger. The appellant was off work from 22 June 1998 until at least 9 July 2001. The respondent accepted liability for the latest operation and time off work. THE AAT DECISION Before the AAT the appellant relied on two alternative arguments. She contended either that her permanent impairment resulting from the work-related injury exceeded ten percent, or that the ten percent threshold did not apply, because her case was for the loss of use of three fingers and thus fell within s 24(8)(a). There was medical evidence before the AAT from Dr Macfarlane and Dr Bulwinkel. The AAT accepted the evidence of Dr Macfarlane and that aspect of the AAT decision is not in contest between the parties on the appeal. The AAT extracted the relevant parts of two reports prepared by Dr Macfarlane dated 17 February 1999 and 16 June 1999. Those which relate to the issues on this appeal are as follows: From the report dated 17 February 1999:‘Previous x-rays were seen. Comments are as follows: 1.7 December 1992: Rheumatoid arthritis is present in both wrists with a subluxed metacarpo-phalangeal joint of the right thumb. There is ulnar drift, widening of the distal radio-ulnar joints. 2.13 January 1994: Xrays [sic] of both feet show cystic changes in the proximal phalanx of the left big toe and rheumatoid arthritis affecting the metacarso-phalangeal [sic] joints of both big toes. 3.9 January 1998: The right hand: this shows generalised rheumatoid arthritis with a subluxed metacarpo-phalangeal joint of the right index finger. 4. 24 June 1998: This is of the right hand and shows that the metacarpo- phalangeal joint of the right thumb is satisfactorily fused. The iso-elastic joint replacement at the metacarpo-phalangeal joint of the index finger is in position and is satisfactory. Generalised rheumatoid arthritis is seen in the right hand and wrist. The bone scan of 9 January 1998 has not been seen only the report thereon.Diagnosis 1.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. …Subsequent operations are anticipated. It is noted that it is likely that she will come to fusion of the right wrist, possibly at most over the next several years, but this is due to the generalised rheumatoid arthritis and not to her work. Opinion and Assessment This 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. 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 [sic] 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. …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 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: (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. 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.’ [emphasis added]

Ratio Decidendi

Legal Principle Established

The grounds of appeal pursued at the hearing of the appeal were set out in the Amended Draft Notice of Appeal, filed on 6 November 2003, as follows:‘3.1His Honour erred in holding that s.24(8) of the Safety, Rehabilitation and Compensation Act (“the Act”) did not apply and that the threshold in s.24(7) of the Act continued to apply to the Appellant’s claim for compensation for permanent impairment in circumstances where, even on the evidence most favourable to the Respondent, the Appellant had a 2% impairment of her right upper limb due to work-related injury to her right index, ring and little fingers.3.2His Honour erred in holding that s.24(8)(a) of the Act operated only to protect workers where there is an injury to a finger which, under Table 9.3 of the Comcare Guide to the Assessment of the Degree of Permanent Impairment, only attracted a percentage impairment of the whole person of 5%.3.3.His Honour erred in failing to rule upon ground 4.2 of the Applicant’s Amended Notice of Appeal, namely that the Tribunal erred in failing to consider whether the Applicant’s claim or part of her claim was for impairment constituted by the “loss of the use of a finger” within s.24(8)(a) of the Act.’CONSIDERATION The reason that the AAT held that s 24(8)(a) did not apply was that the appellant’s claim was not for an impairment constituted by the ‘loss of specific fingers’. There is an assumption in this reasoning that s 24(8)(a) only applies where the claim is based on an impairment constituted by the loss of specific fingers. The AAT did not have regard to the reference in s 24(8)(a) to an impairment constituted by the loss of use of a finger. Paragraph 3.3 of the Amended Notice of Appeal complains that the primary judge failed to rule on this argument. The appellant’s complaint is correct. His Honour did not rule on the argument. If that were the only argument before the primary judge then it was bound to succeed because s 24(8)(a) includes a reference to impairment constituted by the loss of use of a finger, and this was the basis upon which the appellant’s claim was made. It was, however, implicit in his Honour’s reasoning that it was unnecessary to deal with this argument because, on the approach taken by the primary judge, the appellant was bound to fail for other reasons. The first reason flowed from the construction of s 24(8)(a) adopted by his Honour, and the second reason concerned his Honour’s characterisation of the appellant’s claim. On the question of construction, at [45] of the reasons of the primary judge and reproduced at [23] of these reasons, his Honour construed s 24(8)(a) to apply only where there is an injury to a finger, which, under Table 9.3, attracts a percentage impairment of the whole person of 5 percent. His Honour held that the appellant had relied on Tables 9.1 and 9.4, but not 9.3. As the only basis upon which the appellant could succeed under s 24(8)(a) was by reliance on Table 9.3, his Honour determined that the AAT did not err in holding that the section was not brought into operation in this case.