Comcare v Fiedler [2001] FCA 1810

FEDERAL COURT OF AUSTRALIA

Comcare v Fiedler [2001] FCA 1810

WORKER'S COMPENSATION - entitlement for compensation for permanent impairment - Table 9.4 of the "Guide to the Assessment of the Degree of Permanent Impairment" - whether Administrative Appeals Tribunal made error of law in interpretation of Table 9.4 - meaning of "difficulty with digital dexterity" - no error of law - whether Tribunal's failure to make a finding with respect to s 24(2)(c) constituted an error of law - Tribunal entitled to infer, in the circumstances of the case, that Comcare had impliedly conceded that the respondent satisfied the criterion in s 24(2)(c) - no error of law - Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 24 and 28

Safety, Rehabilitation and Compensation Act 1988 (Cth) Administrative Appeals Tribunal Act 1975 (Cth) Veterans' Entitlements Act 1986 (Cth) s 29

Peters and Australian Postal Corporation, AAT Decision 9680 disapproved Holmes and Comcare [2001] AATA 290 disapproved Whittaker v Comcare (1998) 86 FCR 532 applied Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 considered Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 considered Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334 considered Perpetual Trustee Company (Canberra) Ltd v Commissioner for Australian Capital Territory Revenue (1994) 50 FCR 405 considered Eva Filla v Comcare [2001] FCA 964 distinguished

Guide to the Assessment of the Degree of Permanent Impairment Macquarie Dictionary, 3rd ed Oxford English Dictionary, 2nd ed COMCARE v ERROL WILLIAM FIEDLER Q 154 OF 2001

DRUMMOND, KIEFEL AND DOWSETT JJ BRISBANE 18 DECEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 154 OF 2001

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: COMCARE

APPELLANT

AND: ERROL WILLIAM FIEDLER

RESPONDENT

JUDGES: DRUMMOND, KIEFEL AND DOWSETT JJ

DATE OF ORDER: 18 DECEMBER 2001

WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.

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 Q 154 OF 2001

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: COMCARE

APPELLANT

AND: ERROL WILLIAM FIEDLER

RESPONDENT

JUDGES: DRUMMOND, KIEFEL AND DOWSETT JJ

DATE: 18 DECEMBER 2001

PLACE: BRISBANE

REASONS FOR JUDGMENT

THE COURT: 1 This is an appeal under s 44 the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") from a decision of the Administrative Appeals Tribunal ("the Tribunal") constituted by the Hon CR Wright QC, Deputy President, and Brigadier IRW Brumfield and Dr JB Morley, Part-time Members. 2 The respondent was injured at work in November 1994 when he fell heavily, taking most of his weight on his right hand. He promptly submitted a claim to Comcare for rehabilitation and compensation in respect of the injury under the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the Act"). Comcare accepted liability and met the costs of the extensive medical, surgical and rehabilitative treatment he received. In April 1996, he lodged a claim for permanent impairment and non-economic loss with Comcare. In December 1996, Comcare decided not only to refuse to accept liability for payment for compensation for permanent impairment, but also to cease regular "top-up" payments which were then being made to compensate the respondent for the loss of overtime work which, but for his injuries, would have been available to him. The respondent's request of March 1997 for reconsideration by Comcare of this decision produced, in July 1997, advice that Comcare had decided to affirm that decision. In September 1997, the respondent lodged an appeal with the Tribunal. It was heard over two days in April of this year with the decision being given a short while later. 3 By its decision, the Tribunal set aside Comcare's rejection of the respondent's claims and remitted the matter for redetermination by Comcare in accordance with the following directions: (a) That Comcare pay to the respondent the reasonable cost of medical treatment obtained by the appellant in respect of the injury or disease referred to in par 3 [of its reasons] since 6 December 1996. (b) That Comcare pay weekly compensation to the respondent in accordance with s 19 of the Act in respect of the injury or disease referred to in par 3 since 6 December 1996. (c) That Comcare pay to the respondent in respect of his permanent impairment, resulting from the chronic pain syndrome consequent upon his accepted bilateral carpal tunnel syndrome, 19% of the maximum amount provided for by ss 13 and 24(9) of the Act. 4 The appeal to this Court from the Tribunal's decision is limited to an appeal on a question of law. By its notice of appeal, Comcare identified as errors of law, the following: (a) In assessing the respondent's degree of permanent impairment, the Tribunal failed to consider the criteria set out in s 24(2) of the Act and accordingly made no findings of fact in respect of any of the criteria. (b) The Tribunal misunderstood and misapplied the "Guide to the Assessment of the Degree of Permanent Impairment" ("the Guide") issued by Comcare under s 28 in that it: (i) failed to recognise that assessment under the Guide is based on the concept of whole person impairment; (ii) took into account an irrelevant factor in that it referred to fingers and toes in the principles of assessment as being applicable to the respondent; (iii) held that in applying Table 9.4 of the Guide any interference with digital dexterity is sufficient to meet the 10% threshold; (iv) held that pursuant to Table 9.4 it is permissible to assess each limb individually and to then combine them in reaching an assessment of whole person impairment. (c) The Tribunal failed to give any reasons for concluding that the respondent's whole person impairment pursuant to Table 9.4 was 10% for each limb.

The Tribunal's Decision 5 The respondent claimed he had suffered an injury at work resulting in "permanent impairment" within s 24(1) due to the condition of both his hands. He had much difficulty, initially, with his right hand and then also with his left hand, all, he claimed, as a result of the injury. He said that these difficulties have persisted and that he has constant pain in both hands, fluctuating in its severity, and pain radiating up both forearms to the elbows. Comcare's case was that, by December 1996, he was no longer suffering any consequences of the November 1994 fall that left him entitled to compensation in respect of his problems with his right upper limb and that the problems he claimed he was suffering with his left upper limb were not due to the injury. The issues raised by the parties for determination by the Tribunal were therefore whether the injury the respondent suffered in November 1994 had resulted in a permanent impairment in respect of both upper limbs and, if so, what was the extent of that permanent impairment. 6 As to the respondent's right hand, the Tribunal noted that there was no disagreement among the many medical witnesses who had operated on, treated in other ways or reviewed the respondent, that his original injury consisted of compression of his median nerve in the carpal tunnel of his right wrist, as a complication of his fall at work. The Tribunal then turned to the issue of the extent to which the respondent was presently suffering pain in both hands and, if so, the extent to which that pain was due to his work-related injury. On these issues there was, as the Tribunal noted, "directly conflicting medical opinions". 7 In a carefully reasoned assessment of the lay evidence, including that of the respondent, and of the mass of medical evidence, including the oral evidence of a number of these medical practitioners, the Tribunal found that:

"… on the balance of probabilities, the [respondent] is suffering disabling pain in his hands, worse in the right; and that his pains in his hands are a sequel, poorly understood in terms of medical science, of his previous median nerve injuries, to which he was predisposed, with the pain being of 'neuralgic' type, as a form of chronic pain syndrome."

8 In reaching this conclusion, the Tribunal expressly accepted the detailed history of the respondent's problems with his hands given by his general practitioner, Dr MacDonald; it also expressly accepted the opinion of one of the other medical witnesses, Dr Cameron, that he had an underlying predisposition to carpal tunnel syndrome in both wrists, that this became symptomatic in the right wrist as a result of the accident and that his left side carpal tunnel syndrome complaints were precipitated by his enforced preferential use of his left hand both at work and in his other activities of daily living following the first open carpal tunnel decompression surgery on his right wrist in December 1994. 9 The Tribunal then turned to what it described as "the decision by Comcare to decline liability for the [respondent's] claimed permanent impairment on the basis that he has not suffered a functional impairment of at least 10% as required by s 24(7)" of the Act. (By force of that provision, an employee who is left with a permanent impairment from a work-related injury is not entitled to compensation in respect of that injury, despite s 24(1), unless Comcare determines that the degree of permanent impairment of the employee is 10% or greater. This 10% threshold does not, however, apply to the specific impairments in s 24(8), which include impairment constituted by the loss, or the loss of the use, of a finger.) 10 In the context of evaluating the extent of the respondent's permanent impairment, the Tribunal considered the Guide issued by Comcare pursuant to s 28 of the Act. Table 9.4 of the Guide provides: MUSCULO-SKELETAL SYSTEM 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. 11 Paragraphs 1 and 2 of this Table are of relevance here. The Tribunal referred to what one of the medical witnesses said to the effect that "dexterity is being able to handle things neatly" and said:

"56. It is the Tribunal's view that, in context, digital dexterity encompasses more than 'handling things neatly'. It includes in our opinion the capacity to handle things skilfully and efficiently or, as suggested in Toohey and Australian Postal Commission AAT Decision No. 13360, @ para. 52 'ease of use of the fingers and hand without undue restriction'.

57. We were referred by counsel for [Comcare] to the decision of Peters and Australian Postal Corporation AAT Decision No. 9680 and Holmes and Comcare (2001) AATA 290 in support of the proposition that the phrase 'difficulty with digital dexterity' used in Table 9.4, only applies to cases where such difficulty is 'very severe' (Peters) or 'very significant or substantial impairment' (Holmes). We have difficulty in accepting these qualifications upon the words used, and see no warrant either in the legislation itself, or the Guide, for introducing such limitations. We think that the Guide lacks clarity and serves to obfuscate rather than illuminate that degree of impairment which it is intended to compensate.

58. 'Difficulty' covers a broad spectrum of restriction and disability and should not necessarily be read down simply because the existence of the prescribed condition results in the automatic assignment to it of a 10% 'whole person' impairment. We think the 'descriptions of level of impairment' in Table 9.4 are perfunctory and inadequate for their intended purposes and should be reviewed. Nonetheless the Guide has the status of a statutory instrument and, pursuant to s.28(4) of the Act is binding upon this Tribunal. We must therefore give it a reasonable and proper interpretation in arriving at our determination. In our opinion the [respondent] clearly has difficulty with digital dexterity in both hands, and, indeed, substantial difficulty with digital dexterity with his right hand. On the basis of Tables 9.4 he is thus impaired to the extent of not less than 10% expressed as a percentage of whole person impairment.

59. …

60. We note however that neither Dr. Coroneos nor other doctors paid any attention to the second 'Description of Level of Impairment' in Table 9.4 which provides a 20% whole person impairment in respect of an individual who 'can use limb for self care but has no digital dexterity or has difficulties grasping and holding'. Whilst this criterion is somewhat clumsily expressed it seems plain to us that the present [respondent] falls squarely within its specification as he has 'difficulties grasping and holding'. He gave illustrations of this in his evidence and, as indicated above, we found him to be a credible witness on these issues. It would suffice for relevant purposes if this disability could be demonstrated to exist in one hand only, but his complaints of pain and disturbed sensation in both hands producing these sequelae seem to us to provide a more than adequate foundation for finding that the [respondent] has an entitlement to compensation up to 20% pursuant to s.24 of the Act."

12 The Tribunal concluded:

"61. We find that the disabling pain in the [respondent's] hands resulted from and was caused by injury to his median nerves as we have attempted to explain above, and that such condition is permanent. As a consequence we find that Comcare had a continuing liability to make 'top up' payments to the [respondent] beyond 8 January 1997, and also to pay lump sum compensation under ss.24 and 27 of the Act."

13 The Tribunal added:

"65. In accordance with our views expressed above he should receive 10% in respect of each limb giving a total of 19% (in accordance with the combined impairment directive) under description 1 of Table 9.4 or 20% under description 2 of Table 9.4. Of the two we think description 1 is more appropriate. The value of this payment was not canvassed before us and will need to be assessed."

COMCARE'S APPEAL

Ground (b)(iii) 14 It is convenient to deal with this ground of appeal first. At the commencement of the hearing, counsel for Comcare submitted that the appeal involved an important question of law, raised by this ground, which he identified as whether the Tribunal was correct in reading the first paragraph of Table 9.4 in the Guide as permitting the Tribunal to conclude that "any interference with digital dexterity is sufficient to meet the 10% threshold" there referred to. The Court was told that there are a large number of cases awaiting determination which will be governed by this paragraph of Table 9.4. 15 It is clear from a reading of the Tribunal's reasons, particularly pars 57 and 58, that it did not form the view of this paragraph of Table 9.4 which Comcare here attributes to it (though it did refuse to accept that the phrase "difficulty with digital dexterity" in par 1 of Table 9.4 connoted very significant impairment of digital dexterity). Counsel for Comcare conceded as much. Comcare seeks to use this case as a vehicle for establishing the correctness of the earlier decisions of the Tribunal to the effect that the phrase "difficulty with digital dexterity" in this paragraph of Table 9.4 can only be satisfied if the level of difficulty with digital dexterity experienced in the particular case is "very severe" (Peters and Australian Postal Corporation, AAT Decision 9680) or constitutes a "very significant or substantial impairment" (Holmes and Comcare [2001] AATA 290). 16 Even if the Tribunal erred in not construing the phrase "difficulty with digital dexterity" in paragraph 1 of Table 9.4 as Comcare contends, the question would arise whether, on the evidence accepted by the Tribunal, Comcare could show that the Tribunal may have come to a conclusion different from that which it reached if that error of law had not been made and that the error was thus a material one justifying curial intervention. On the evidence accepted by the Tribunal, the respondent's injury has left him with, among other disabilities, severely impaired digital dexterity. Dr MacDonald (whose evidence on this aspect of the case the Tribunal accepted "as being substantially accurate") says that some of the things the respondent "absolutely can't do" include the following, which call for digital dexterity: he cannot open bottles or oppose his thumb to his ring and little fingers; he cannot make fishing lures ("a task that requires considerable fine motor skills and digital dexterity"); he cannot hold any but the smallest fishing rod; he cannot fillet fish; he cannot use household tools, including pliers and screwdrivers. Some of the things the respondent can do, but only "with significant difficulty" include the following, which require digital dexterity: holding a pen, holding a telephone, any fine work and anything requiring fine motor skills. After listing the full ranges of things the respondent cannot do at all and can do, but only with significant difficulty, Dr MacDonald observed: "thus it can be seen that his activities of daily living are grossly limited, besides being in constant pain". 17 However, there is no warrant, as the Tribunal in this case observed, for placing the qualification on the phrase "difficulty with digital dexterity" in Table 9.4, which found favour with the Tribunal in Holmes and Peters. Nor is there reason to think the Tribunal in this case otherwise misconstrued this provision. 18 In Holmes, a decision given long after the judgment of this Court in Whittaker v Comcare (1998) 86 FCR 532, one issue for the Tribunal was whether the respondent should be assessed by reason of referred pain from a neck injury into his right arm as coming within paragraph 1 of Table 9.4. The Tribunal correctly recognised the wording of this provision was ambiguous, saying:

"The phrase 'has difficulty with digital dexterity' in [description 1] in Table 9.4 is imprecise in that the word 'difficulty' is not modified adjectively."

19 But instead of identifying and applying the construction of the phrase most favourable to the employee in accordance with the ruling in Whittaker at 544 - 545, the Tribunal ignored what the Full Court there said about the proper approach to construing the ambiguous provisions of the Guide and interpreted this paragraph of Table 9.4 in a way which impermissibly restricted the employee's entitlement. It said at [55]:

"That being the case, it is appropriate in the Tribunal's opinion, to have regard to the relevant 'whole person impairment' percentage in Table 9.4 in order to give a sensible and practical interpretation to that phrase in a particular case. In this connection the Tribunal regards a 10% 'whole person impairment' as connoting a very significant or substantial impairment of the upper limb."

20 The Tribunal in Peters, a decision ante-dating Whittaker, interpreted paragraph 1 of Table 9.4 in the same unduly restrictive way. 21 22 As to the proper construction of the provision, the Tribunal in this case correctly identified the language in Table 9.4 as ambiguous. The word "difficulty", like most ordinary English words, has no fixed meaning but is, as the Tribunal observes, a word capable of covering a broad spectrum of restriction and disability in the context of a phrase such as "difficulty with digital dexterity" in Table 9.4. According to the Macquarie Dictionary, 3rd ed, "difficulty" connotes a range of conditions from being "not easy", to being "hard to do", to "requiring much effort". According to the Oxford English Dictionary, 2nd ed, it connotes notions of not being easy, of requiring effort or labour, of being troublesome or hard to do, perform or carry out. An injury that leaves a person in the position of requiring much effort to perform tasks calling for digital dexterity involves a markedly more serious impairment than does an injury which makes it not easy or troublesome for a person to perform such tasks. 23 Something more than minimal problems with digital dexterity is required. But if a person, as a result of his injury, finds it troublesome or not easy to do tasks requiring digital dexterity, that will, adopting the approach to interpretation required by Whittaker at 544 - 545, justify a 10% impairment assessment under paragraph 1 of Table 9.4. 24 The Tribunal, having correctly rejected the interpretation placed on the phrase in Table 9.4 in Holmes and Peters, appears to have applied an interpretation to this effect to the facts of the case as found by it when it concluded that the respondent "clearly has difficulty with digital dexterity in both hands and, indeed, substantial difficulty with digital dexterity with his right hand". There is no reason to think the Tribunal considered that any difficulty with digital dexterity, no matter how slight, was sufficient to come within par 1 of Table 9.4. 25 There is a further reason for rejecting the approach taken by the Tribunals in Holmes and Peters. 26 The Guide remains in the form in which it was initially published in 1989. It is a confused, poorly drafted document. The failure of the draftsman of the Guide to recognise the importance of clarity in a document which forms an important part of the scheme of employee compensation established by the Act and the longstanding failure of Comcare to remedy numerous deficiencies in the Guide has been the subject of repeated criticism by this Court: see Whittaker, particularly at 538. We agree with what the Tribunal said to the effect "that the Guide lacks clarity and serves to obfuscate rather than illuminate that degree of impairment which it is intended to compensate" and also what it said about the "descriptions of level of impairment" in Table 9.4 being "perfunctory and inadequate for their intended purposes and should be reviewed". This Court was told that the Guide is presently under review. The Court in Whittaker was told the same in July 1998. 27 Table 9.4 is directed to assessing the level of impairment due to an injury involving an upper limb, not just the impairment resulting from "difficulty with digital dexterity": that is apparent from the heading of the Table - "Limb Function - Upper Limb (Percentage Whole Person Impairment)" - and also from the fact that a matter which must be adverted to in assessing impairment under Table 9.4 at each of the four levels provided for in that Table is the person's capacity to use the limb for self-care. Moreover, the Guide makes other provision for assessing impairment due to injuries involving only the fingers. Though, as was pointed out in Whittaker at 539, Table 9.4 is so worded as to enable the assessment of whole person impairment resulting from impairment of "overall limb function" from any cause, the "introduction" to Table 9.1 indicates that where upper limb function with resulting whole body impairment is affected by a specific joint lesion (including to a finger) or an amputation of part of the upper limb (including the whole or part of a finger), the impairment assessment is to be made under Table 9.1 or Table 9.3 rather than Table 9.4. 28 But where it is appropriate to assess impairment under Table 9.4, none of the paragraphs of that Table purports to provide a means for taking into account all the consequences of an injury to an upper limb in assessing the resultant whole body impairment: each paragraph requires the assessment to be made by confining attention to three matters - use of the limb for self-care, use for grasping and holding and difficulty with digital dexterity - irrespective of any other problems the injury in question may have created for upper limb function. For example, the overall strength of the limb may be permanently damaged by muscle wasting or nerve damage to a part of the limb, including damage causing severe pain, with the result that the person is seriously impeded in using the limb for pushing, pulling or weight-bearing. 29 That is the case here. According to Dr MacDonald, the respondent's injury has left him with a very serious disability:

"The burning pains in his hands continue to be severely distressing, and grossly limit him in his activities of daily living."

30 The pain by itself is such that Dr MacDonald accepts that the respondent cannot sleep through the night without waking several times. His injury has also impaired, to a significant degree, his ability to use his hands for various forms of weight bearing: he cannot "lift more than 10 kg - things just fall out of his hands" and "lifting less than 10 kg and sustaining it for more than 30 seconds" he can do, but only with significant difficulty; he cannot "have sex, unless he stays on the bottom". Yet, if such a significant level of continuing pain and of loss of weight bearing ability does not prevent a sufferer from using his limb for self-care or from grasping and holding things and does not cause difficulty with digital dexterity, Table 9.4 denies the person entitlement to compensation for the injury. 31 The three descriptors in Table 9.4 - "use limb for self care", "grasping and holding" capacity and "difficulty with digital dexterity" - are, as the Tribunal in this case correctly understood, perfunctory and inadequate proxies for assessing the level of permanent impairment resulting from injury to an upper limb (ie, for injuries other than those which must be assessed under Tables 9.1 and 9.3). (These deficiencies in Table 9.4 can be illustrated by comparing it with Table 3.1.2 and the associated text under the heading "Step 4", the table in the Assessment Guide (now in its fifth, 1998, revision) issued under s 29 the Veterans' Entitlements Act 1986 (Cth) that corresponds to Table 9.4.) It is therefore wrong for the Tribunal to assume, as it did in Peters and Holmes, that since "difficulty with digital dexterity" justifies a level of assessment under paragraph 1 of Table 9.4 of impairment as substantial as 10%, a high level of difficulty with digital dexterity is required before that assessment can be made. 32 The Tribunal's conclusion in favour of the respondent is not infected with error of law constituted by an erroneous interpretation of the provisions of Table 9.4.

The Remaining Grounds of Appeal

Ground (a) 33 Comcare's theory here is that, in every case, before the Tribunal can reach a conclusion in favour of a compensation claimant, it is necessary that it make an express finding on whether the claimant has satisfied the criterion set out in s 24(2)(c) of the Act. The Tribunal did not make any reference to this particular matter in its reasons. It can therefore be taken not to have considered it: see s 43(2B) the AAT Act and Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 at [69]. It is said that its failure to deal with this matter in its reasons and to make a finding in relation to it constitutes an error of law that vitiates the Tribunal's decision. 34 Section 24 of the Act provides:

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

(2) For the purpose of determining whether an impairment is permanent, Comcare 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."

35 The subject matter of s 24(2)(c) is declared by the statute to be a consideration which Comcare must take into account in determining whether an impairment is permanent if Comcare is to avoid error of law in making that decision. It is true that the Tribunal's function is administrative, not judicial, ie, it must review the merits of the claimant's claim, not just the determination of the primary decision-maker: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419. Moreover, by s 43(1) the AAT Act, it is empowered, when reviewing an administrative decision, to exercise all the powers and discretions that are conferred on the original decision-maker. 36 But in view of the narrow argument advanced in support of this ground of appeal, this is not the case in which to determine how to resolve the tension between the function of the Tribunal in conducting merit review by way of a hearing de novo and the fact that it carries out that review within a statutory framework that obliges it to conduct proceedings "with as little formality and technicality, and with as much expedition, as the requirements of this Act and every other relevant enactment and a proper consideration of the matters before the Tribunal permit" (s 33(1)(b) the AAT Act) and which permits the Tribunal, subject to qualification, to dispose of proceedings without investigation of the facts by it, but by consent determinations (ss 42A(1) and 42C(1) the AAT Act). (When reviewing decisions under the Safety, Rehabilitation and Compensation Act 1988 (Cth) pursuant to s 64 of that Act, the framework within which the Tribunal must operate also includes the restriction imposed by s 66 of that Act on the material which the Tribunal can consider, ie, on the scope of the hearing de novo which the Tribunal must undertake.) 37 It is sufficient to note that the Tribunal is not obliged, in every case, to make a finding on every matter upon which the original decision-maker was bound to form a view. In Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334, the Tribunal affirmed a deportation order by the Minister made under s 13 the Migration Act 1958 (Cth). This provision empowered the Minister to deport "an immigrant" convicted of certain offences in Australia. It was, as Bowen CJ observed at 336, "common ground" before the Tribunal that the appellant was "an immigrant": the lengthy proceedings in the Tribunal were confined to a review of the merits of the Minister's decision. On appeal, the Full Court accepted that the phrase "question of law" in s 44(1) the AAT Act had a wide meaning that encompassed any failure by the Tribunal to take into account a relevant consideration and held that the Tribunal had erred in law by failing to investigate and make a finding on the issue whether the appellant was, in truth, "an immigrant". In overturning the Tribunal's decision, the Chief Justice said at 343:

"The case before this Court is not merely one of parties agreeing upon what facts should be decided by the trier of fact, nor a case of facts, peculiarly within the knowledge of the party, being conceded. Rather, there was a clear statutory precondition upon which the Tribunal had to be satisfied and enough material and evidence before it to raise the issue independently of the parties' submissions. In these circumstances it was an error of law not to consider and decide the issue of immigrant status."

38 Fox J agreed, saying at 348:

"The application for review, in par 7, which deals with reasons for the application, made express reference to matters relevant to assimilation. Those matters were proved in evidence, but were related by all concerned to the question whether the applicant should be deported. Where there is material suggesting that the applicant has at, or before, the relevant time become a member of the Australian community it is in my opinion incumbent upon the Tribunal to investigate the matter and to form and record its decision."

39 Deane J, at 354 - 355, agreed with Bowen CJ and Fox J. The comments of Davies J and Wilcox J in Perpetual Trustee Company (Canberra) Ltd v Commissioner for Australian Capital Territory Revenue (1994) 50 FCR 405 are applicable to both the ACT Administrative Appeals Tribunal and the Commonwealth Tribunal and are to similar effect. At 418 - 419, Wilcox J said:

"However, I agree with Davies J that the procedure adopted in this case by the Administrative Appeals Tribunal was unsatisfactory. The Tribunal agreed to determine the critical question in the case on the basis of the statement of agreed facts that was patently inadequate. If we were concerned with a decision of the Court, made on the basis of issues framed by the parties' pleadings, there would be much force in an argument that, the case having been fought on those issues, the unsuccessful party should not be allowed a second chance. However, we are not concerned with such a decision, but with the decision of a body whose function was 'to review the administrative decision that is under attack before it'. Those words were used by Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419 in relation to the Commonwealth Administrative Appeals Tribunal, but they apply equally to its Australian Capital Territory counterpart. The statutory function of the Tribunal requires that it form its own view about the matter in issue. In approaching that task, it is legitimate for the Tribunal to be guided by the parties as to the salient issues and to accept relevant admissions of fact, but the Tribunal should never permit parties to place it in the position of deciding a case on an artificial or inadequate factual basis."

40 The Tribunal is not, as a general rule, required to ignore the fact that one or both parties have made admissions or concessions, express or implied, that particular issues which the original decision-maker may have had to consider need not be the subject of inquiry and determination by the Tribunal. The Tribunal will, however, fall into error of law by failing to inquire of its own motion into, and make a finding on, an issue the subject of an admission or concession by a party that is material to its decision if there is reason to doubt that the admission or concession is factually justified. But in the absence of there being some reason to question the admission or concession, the Tribunal will generally be entitled not to inquire into the issue for itself, but to act on that admission or concession in making its decision. 41 The point now taken by Comcare is without merit. Counsel for Comcare acknowledged that there was no issue raised in the proceedings before the Tribunal whether the respondent may have failed to establish that his impairment was permanent because he failed to satisfy the criterion in s 24(2)(c). There was no evidence put before the Tribunal by Comcare touching on that matter. All counsel for Comcare could point to was a brief comment in a report by a neurologist, Dr Reid, to the appellant's general practitioner to the effect that, while the respondent had tried numerous treatments in the past, Dr Reid thought it was "worth revisiting some of them". Though Comcare put a mass of medical evidence before the Tribunal, it ignored this isolated suggestion: it did not seek to elicit from anyone, including Dr Reid, who was called as a witness before the Tribunal, any evidence as to particular treatments that the respondent might revisit or as to the likelihood of an outcome beneficial to the respondent from any such further treatment. Nor did Comcare attempt to show that Dr Reid's comment had been drawn to the respondent's attention at all, let alone in circumstances that might have required him to consider following it up. This last point is of some significance, given that the respondent had undergone a lot of medical and surgical treatment which a body of evidence before the Tribunal suggested had produced no improvement in his condition, and may even have aggravated it. Moreover, there was much evidence before the Tribunal chronicling the extensive treatment, including rehabilitative treatment the respondent had received. 42 In the circumstances of this case, the Tribunal was entitled to infer that Comcare had impliedly conceded in the proceedings before it that the respondent satisfied the criterion in s 24(2)(c). There was nothing in the material before the Tribunal to suggest that it could not properly rely on that concession in determining the case. 43 Comcare also relied on statements by Katz J in Eva Filla v Comcare [2001] FCA 964, particularly at [55] to [57], as supporting the argument here advanced. It quotes Katz J out of context. What his Honour had to say about the need for Comcare to consider s 24(2)(c) was said in the context of dealing with a ground of appeal focusing on the significance of Ms Filla's refusal to submit to certain surgery ("rehabilitative treatment" within the meaning of that term in s 24(2)(c) - cf the definition of "rehabilitation program" in s 4) for the reason that, as Katz J recorded, "both parties proceeded on the basis that such an inquiry was mandated by s 24(2)(c) …". Whether the criterion in s 24(2)(c) was satisfied in Filla was a live issue there. It is not here. 44 The Tribunal made no error of law by not dealing with s 24(2)(c).

Ground (b)(i) 45 This ground not only lacks merit, but is manifestly unarguable. 46 As the heading to Table 9.4 emphasises, it is concerned with the assessment of the "Percentage Whole Person Impairment". There can be no doubt that the Tribunal well recognised that this was its task and did not purport to confine its assessment to the extent to which the functioning of the respondent's hands or upper limbs, considered in isolation, were impaired, as Comcare seems to suggest in this ground of appeal and in its counsel's written submissions. This is apparent from the Tribunal's comments in pars 58, 60 and 62. It is also manifest in the Tribunal's references to the evidence dealing with how the respondent's problems with his upper limbs affected him in carrying out his everyday activities. Evaluation of the impact of the injury on the person's daily activities is what is measured by "Whole Person Impairment": see p 4 of the Guide, heading "The Impairment Tables". It was by reference to that evidence of the respondent (and his medical and lay witnesses), which the Tribunal found to be credible, that it expressed the opinion in pars 58 and 60 that he had an entitlement to compensation because he had a whole person impairment of the order of 20%. 47 Counsel suggested in oral argument that this ground was only relied on in support of Comcare's submission on the interpretation issue the subject of Ground (b)(iii). How such an error by the Tribunal could support that particular case was not made clear. But even if there was some basis for counsel's suggestion, that disappears once it is seen that the Tribunal did asses whole person impairment.

Ground (b)(ii) 48 Though counsel for Comcare came close to disavowing reliance on this ground, he did not abandon it. 49 It may be that the significance the Tribunal saw in the statements in the Guide heading "Fingers and Toes" was that they served to emphasise that, in assessing impairment under the Guide, it was not necessary to find a total loss of efficient use of any body member, that a partial loss of efficient use could also justify an impairment assessment. That is plainly applicable generally to the Guide and, in particular, to assessments under Table 9.4. But even if the Tribunal attached some other significance to this passage in the Guide, there is no reason to think that that has resulted in its decision being flawed for error of law: counsel did not attempt to identify how the Tribunal's reference to this note may have impermissibly affected the conclusions it reached to the effect that the respondent did have a permanent impairment of the order of 20% of "Whole Person Impairment".

Ground (b)(iv) 50 This ground too is without any substance. As framed, the point of this ground of appeal conflicts with the direction in the Guide as to the need to assess overall impairment resulting from multiple impairments by using the Combined Values table (which the Tribunal applied to derive the 19% figure). Counsel put a different contention in argument. It must be rejected. 51 The Tribunal, in par 65, did not express a finding as to the level of permanent impairment in the alternative as counsel for Comcare now suggests. Just the reverse. It said that an assessment in favour of the respondent could be made under paragraph 1 of Table 9.4 resulting in a combined assessment of 19% in accordance with the Combined Value Chart at p 55 of the Guide or alternatively, an assessment of 20% impairment could be made under paragraph 2 of Table 9.4. Either view was well open, on the evidence the Tribunal accepted. However, the Tribunal was careful to go on to identify the former as the assessment which it found to be the more appropriate for the respondent. It is that, and that alone, which Comcare will have to value in fixing the amount payable to the respondent pursuant to s 24(3) and (4).

Ground (c) 52 This ground also lacks substance. The Tribunal carefully identified the evidence it accepted, both lay and expert medical evidence and explained why it found he was left with a permanent disability of both upper limbs. The Tribunal accepted the respondent's description of the difficulties he had in both hands, summarising his evidence at par 22, because his evidence was confirmed by the lay witnesses and by the medical witnesses it preferred. In par 50, the Tribunal found that the respondent was suffering disabling pain "in his hands, worse in the right; and that his pains in his hands are a sequel … of his previous median nerve injuries …" The Tribunal set out the statements by Dr MacDonald in his report of June 2000, which deal at length with the problems the respondent was having with both hands. It no doubt set out Dr MacDonald's opinions at such lengths because of the conflict in the medical testimony and because it decided that Dr MacDonald's evidence was more reliable than that of the medical witnesses who testified for Comcare. It summarised its reasons for its opinion that he was entitled to the combined 19% assessment it arrived at in par 58, saying:

"In our opinion the [respondent] clearly has difficulty with digital dexterity in both hands, and, indeed, substantial difficulty with digital dexterity with his right hand."

53 It said this in the context of explaining why it considered the difficulties the respondent had in both hands came within the description "difficulty with digital dexterity" in the first paragraph in Table 9.4. The Tribunal gave full, informative reasons for making the two 10% impairment assessments from which it derived the combined 19% assessment.

THE RESULT OF THE APPEAL 54 We would dismiss the appeal with costs. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate: Dated: 18 December 2001

Counsel for the Appellant: Mr S Pilkinton

Solicitor for the Appellant: Phillips Fox

Counsel for the Respondent: Mr A Harding

Solicitor for the Respondent: Gilshenan & Luton

Date of Hearing: 14 November 2001

Date of Judgment: 18 December 2001