FEDERAL COURT OF AUSTRALIA

Comcare v Farrell [2016] FCAFC 115

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the primary judge made on 30 November 2015 be set aside.

3.    In lieu thereof, it be ordered that in the appeal below:

(a)    The appeal be dismissed.

(b)    The appellant pay the respondent’s costs of the appeal, as agreed or taxed.

4.    The respondent pay the appellant’s costs of the appeal, as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    Comcare contends that in allowing an appeal on a question of law from the Administrative Appeals Tribunal (the Tribunal) under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) the primary judge erred in his conclusion that the Tribunal had failed to make a critical finding of fact (the fact finding issue) and misconstrued the applicable legislation (the Safety, Rehabilitation and Compensation Act 1988 (Cth)) (the SRC Act) (the legislation issue).

The fact finding issue

2    The respondent, Ms Farrell, sought compensation for an injury said to result in “permanent impairment” as provided for in ss 14 and 24 of the SRC Act.

3    Section 14(1) provides that:

Subject to this Part, Comcare 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.

4    Section 24, which is in the relevant Part of the Act (Part II), provides that:

(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.

(3)    Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.

(4)    The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).

(5)    Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.

(6)    The degree of permanent impairment shall be expressed as a percentage.

…

5    “Injury” relevantly means “an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment” (s 5A(1)(b) of the SRC Act), whereas “impairment” means “the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function” and “permanent” means “likely to continue indefinitely” (s 4(1) of the SRC Act).

6    In its decision of 28 April 2015 (Farrell and Comcare [2015] AATA 268) the Tribunal recorded this at [12]:

Comcare has accepted liability, under s 14 of the SRC Act, for:

•    tenosynovitis hand and wrist (right);

•    lateral epicondylitis (bilateral)—commonly known as “tennis elbow”;

•    synovitis and tenosynovitis (left); and

•    medial epicondylitis (right)—commonly known as “golfer’s elbow”.

7    A footnote to [12] in the Tribunal’s reasons recorded:

On 28 March 2014, Comcare accepted liability for bilateral chronic pain syndrome in the arms. At the hearing, the parties agreed that the question of liability under ss 24 and 27 of the SRC Act for this condition is not before the Tribunal.

8    It is appropriate to note here that it was put for Ms Farrell during the appeal that the Tribunal’s references to “accepted liability” (and, equally, Comcare’s claim form as provided for in, and presumably approved under, s 54 of the SRC Act, which refers to “accepted conditions”) involve error because compensation is not dependent on Comcare accepting the existence of any condition. Senior counsel for Ms Farrell also denied the accuracy of the footnote to [12] of the Tribunal’s reasons.

9    It is true that a determination under s 24 is not dependent on Comcare first having determined that there is an injury under s 14. In Lees v Comcare [1999] FCA 753; (1999) 56 ALD 84 at [49] the Full Court of this Court said:

It may be that a situation could arise in which an employee has a claim for compensation for permanent impairment under s 24 of the Act where no determination of Comcare's liability under s 14 of the Act has been made. In such a case it may well be that the Act allows the issue of Comcare's liability to pay to the employee compensation for permanent impairment to be determined under s 24 notwithstanding that no earlier determination under s 14 has been made. However, the practical reality is that such cases will be rare. Ordinarily, before any issue of an employee's, or former employee's, entitlement to compensation for permanent impairment arises, a determination concerning that person's entitlement to compensation will have been made under s 14 of the Act. Neither of the matters under present consideration is an instance of a case in which a claim for compensation for permanent impairment arose in the absence of a determination under s 14 of the Act.

10    The present case is no different from Lees. In our view the Tribunal’s observation at [12] must be taken to reflect the position of both parties before the Tribunal that the claim for compensation was in respect of the accepted injuries identified by the Tribunal at [12] and in accordance with the footnote to that paragraph, which itself must be taken as an accurate reflection of the agreed position of the parties that Ms Farrell’s accepted injury of “bilateral chronic pain syndrome in the arms” was not before the Tribunal. These matters must be accepted because:

(a)    the injuries identified at [12] are consistent with the injuries identified by the Tribunal at [14] as the injuries that were the subject of the decisions under review;

(b)    the primary judge did not decide the matter on any question surrounding Comcare’s acceptance of liability for particular injuries; and

(c)    while the transcript indicates a lack of clarity about the “agreement” between the parties, there is no notice of contention alleging that the Tribunal erred in recording the parties’ agreement as it did.

11    Accordingly, insofar as the submissions for Ms Farrell contended that the Tribunal “overlooked” a relevant injury, or that her claim was for injuries other than those identified in [12], the submissions involve a distraction from the real issues in the appeal. Those submissions are also inconsistent with [41] of Ms Farrell’s outline of submissions which referred to the injuries listed by the Tribunal at [12] as “the undisputed injuries”. The only injuries with which the Tribunal was concerned in this part of its reasons (a necessary qualification because the Tribunal dealt separately with Ms Farrell’s claim of impairment resulting from bilateral cervicobrachial syndrome) are those set out in [12]. It was any permanent impairment resulting from each of those (and no other) injuries that are relevant to this appeal and were relevant before the primary judge.

12    Whilst it has no bearing on the disposition of the appeal, we see force in the criticism made of the claim form which Comcare required Ms Farrell to complete. The form should have sought specification of each claimed injury which Ms Farrell asserted had resulted in a permanent impairment. The form did not do that, at least not unambiguously.

13    In support of that observation, but principally for the issues germane to the appeal, we also observe here that it is an “injury” which “results in a permanent impairment” with which s 24(1) is concerned. As explained in Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535 (Canute):

[10] At this juncture, three things may be observed about the concept of "an injury". First, the Act does not oblige Comcare to pay compensation in respect of an employee's impairment; it is liable to pay compensation in respect of "the injury". Secondly, the term "injury" is not used in the Act in the sense of "workplace accident". The definition of "injury" is expressed in terms of the resultant effect of an incident or ailment upon the employee's body. Thirdly, the term "injury" is not used in a global sense to describe the general condition of the employee following an incident. The Act refers disjunctively to "disease" or "physical or mental" injuries and, at least to that extent, it assumes that an employee may sustain more than one "injury". The use in s 24(1) of the indefinite article in the expression "an injury" reinforces that conclusion.

…

[14] …it is important to remember that recourse to the criteria and methodologies set out in the Guide is only necessary once the key statutory criterion of the occurrence of "an injury" (which resulted in at least one permanent impairment) has been fulfilled. The Guide is to be approached through the prism of each "injury". The terms of s 24(5) are quite clear; Comcare is to assess the degree of permanent impairment of the employee "resulting from an injury". Similarly, in s 24(7), the threshold permanent impairment of the employee of 10 per cent affects the amount of compensation payable "under this section"; that is, "in respect of the injury" (s 24(1)).

[15] The scheme of the Act proceeds in this way from the occurrence of "an injury", in the defined sense. As previously remarked, the Act assumes that more than one "injury" may occur. Therefore it is not correct to say that s 24(5) imports a "whole person" approach to the determination of the degree of permanent impairment. That ignores the centrality of "an injury" to the scheme upon which Comcare's liability to compensate depends.

14    This approach, of assessing permanent impairment arising from each injury, was repeated as necessary in Fellowes v Military Rehabilitation and Compensation Commission [2009] HCA 38; (2009) 240 CLR 28 at [19] to [28] (and see also Newport v Australian Postal Corporation [2015] FCAFC 194 at [17] and [18]).

15    What then did the Tribunal do? Having identified each relevant injury at [12] the Tribunal recorded the competing positions of the parties, the focus of which was how the approved Guide referred to in s 24(5) could be used. Ms Farrell contended that tables 9.8, 9.9 and 9.10 were irrelevant to her impairment because they concerned loss of range of movement in joints in her arms whereas her claimed impairment was for “loss of the use of her arms for functional purposes” (at [18]). She contended that, as such, table 9.14 could be used.

16    The Tribunal rejected this submission on the basis (unchallenged in the appeal) that table 9.14 cannot be used because the approved Guide, in terms, only allows recourse to that table if “there is … radiologically demonstrated joint instability or arthritis or arthroplasty”. At [19] the Tribunal recorded the undisputed fact that there was “no evidence that Ms Farrell has radiographically demonstrated joint instability or arthritis, or has had an arthroplasty” and concluded that this “would seem to preclude the use of Table 9.14 in assessing the degree of her impairment”. At [21] the Tribunal said that “Table 9.14 cannot be used except in specified circumstances, even if the impairment cannot be adequately assessed under another table”. As a matter of construction of the approved Guide the Tribunal’s statements are correct.

17    The Tribunal then moved to another submission put to it for Ms Farrell that, as a matter of construction of the approved Guide, table 9.14 could be used indirectly because the introductory notes to Part II of the approved Guide stated:

Where a condition cannot be assessed under a specific table in the upper extremities group, an assessment may be made under the provisions of the American Medical Association’s Guides to the Evaluation of Permanent Impairment 5th edition 2001.

18    According to this submission, because none of the tables in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (5th edition, 2001) (AMA 5) applied to her claimed impairment of her right and left arms, and AMA 5 itself states that in “situations where impairment ratings are not provided, the [AMA 5] suggests that physicians use clinical judgment, comparing measurable impairment resulting from the unlisted condition to measurable impairment resulting from similar conditions with similar impairment of function in performing activities of daily living”, regard should be had to the content of table 9.14 because it provides “the best guide to the exercise of clinical judgment in circumstances like hers” (at [22]).

19    The Tribunal again noted at [23] (correctly as a matter of construction) that Table 9.14 “can only be used in this indirect way if Ms Farrell’s impairment ‘cannot be assessed under a specific table in the upper extremities group’ of the approved Guide”. It noted that “Comcare says that her impairment can be assessed under the following tables of the approved Guide in the upper extremities group” (the Tribunal listed various parts of tables 9.8 and 9.9). The Tribunal then said this:

24. Ms Farrell’s degree of impairment was assessed, using these tables, by Associate Professor Les Barnsley, a consultant rheumatologist. He assessed the degree of her impairment as 3% under Tables 9.9.1a and 9.9.1b, and as 0% under the other tables. Ms Farrell’s degree of impairment was also assessed by Dr Leon Le Leu, an occupational physician. Dr Le Leu did not think that any of the tables listed above were relevant to Ms Farrell, and assessed her level of impairment using Table 9.14.

25. Section 28(4) of the SRC Act provides that it is for Comcare or this Tribunal—not medical experts—to decide “the degree of permanent impairment of an employee resulting from an injury, or the degree of non-economic loss suffered by an employee ... under the relevant provisions of the approved Guide”. It follows that it is a question for me—and not for medical experts—whether Ms Farrell’s impairment can be assessed under one or more of the tables listed above.

26. I find that Ms Farrell’s impairment can be assessed under (at least) Tables 9.9.1a and 9.9.1b. I make that finding, noting that Associate Professor Barnsley was able to assess Ms Farrell’s impairment under those tables.

27. I also note that, although Dr Le Leu did not assess Ms Farrell’s impairment under those tables, he did give his view, at the hearing, that Tables 9.8, 9.9 and 9.10 “can be used for assessment of individual joints but they don’t give a clear idea of the—a clear reflection of the total impairment”. I agree that Ms Farrell’s impairment would be more appropriately assessed under Table 9.14, because that table better reflects the totality of her impairment. But Table 9.14 cannot be used. The notes preceding Table 9.14 expressly preclude the use of that table in this case, because there is no evidence that Ms Farrell has radiographically demonstrated joint instability or arthritis, or has had an arthroplasty.

28. Table 9.14 cannot be used directly, and it cannot be used in the indirect way that Ms Farrell suggests. It can only be used in an indirect way if Ms Farrell’s impairment “cannot be assessed under a specific table in the upper extremities group” of the approved Guide. I have found that her impairment can be assessed under at least two of those tables.

29. As noted above, Ms Farrell concedes that, if those tables are used, her WPI rating under those tables is less than 10%. I find that her WPI rating under Tables 9.9.1a and 9.9.1b is 3%, based on the assessment conducted by Associate Professor Barnsley. Because her degree of impairment is less than 10%, Comcare is not liable to pay compensation under s 24 or s 27 of the SRC Act.

20    To understand these paragraphs it is necessary to identify the substance of the material which was before it, in particular that of Associate Professor Barnsley and Dr Le Leu. Associate Professor Barnsley said this in his main report:

PART B: Whether Ms Farrell suffers a permanent impairment as a result of her compensable conditions, and if so, to assess the level of that impairment

Permanent Impairment

9.    Does Ms Farrell continue to suffer from any or each of her accepted compensable conditions, specifically:

(a)    tenosynovitis hand and wrist (right)

I consider that she still has some evidence of tenosynovitis affecting the right hand and wrist.

(b)    lateral epicondylitis (left)

No, I found no clinical evidence of this today.

(c)    synovitis and tenosynovitis (left)

I found no clinical evidence of tenosynovitis or synovitis on the left side today.

…

(e)    right epicondylitis (medial and lateral)

I found no evidence of any persistent features of epicondylitis.

10.    If so, do you consider that Ms Farrell suffers from a permanent impairment as a result of any or each of her compensable conditions? In considering whether a condition is permanent, i.e. likely to continue indefinitely, regard is given to the duration of the impairment, the likelihood of improvement in the condition, whether the employee has undergone all reasonable rehabilitative treatment and any other relevant matters. ·

I consider given the persistence of the pain in the right hand it is likely that this will persist indefinitely. I found no evidence of any persistent features of epicondylitis. I believe that she has had extensive treatment and rehabilitation.

11.    What is the degree of permanent impairment resulting from each of the compensable conditions, expressed as a percentage, in accordance with the relevant table(s) of the Guide and/or the AMA Guidelines? Please give reasons for your opinion, including the reasons as to why you have chosen a particular table to assess Ms Farrell under.

In terms of the current compensable conditions, which I consider are restricted to the tenosynovitis of the right hand, l believe that these can be assessed using the range of movement criteria…. (italics removed)

21    Associate Professor Barnsley then gave an opinion on the degree of Ms Farrell’s permanent impairment by reference to table 9.9.

22    Associate Professor Barnsley’s report was subject to criticism during the appeal because he referred to “accepted compensable conditions” when, as noted, acceptance by Comcare of an injury under s 14 is not a necessary pre-condition to a determination of compensation under s 24. However, this criticism is a distraction for the reasons already explained. The Tribunal’s task was to determine whether Ms Farrell suffered a permanent impairment resulting from each injury identified at [12] of its reasons. It must be taken that there was no suggestion to the Tribunal that the report of Associate Professor Barnsley did not deal with each of the injuries identified at [12]. Given that Comcare’s case before the Tribunal, and on appeal before the primary judge, was that the Tribunal found permanent impairment in accordance with the opinion given by Associate Professor Barnsley, any such suggestion would have to have been raised in answer to Comcare’s case in the appeal before the primary judge or by way of a notice of contention, which it was not.

23    In any event, it is clear that the only possible ambiguity which exists (and which, it should be said, was for the Tribunal to resolve as a matter of fact had the issue been raised before it) was that the Tribunal referred to one injury at [12] as “lateral epicondylitis (bilateral) – commonly known as ‘tennis elbow’” whereas Associate Professor Barnsley referred to “lateral epicondylitis (left)”. However, once it is recognised that he also dealt with “right epicondylitis (medial and lateral)” it is plain that, although he used different groupings for the epicondylitis conditions, Associate Professor Barnsley dealt with each injury identified at [12]. To the extent that the submissions for Ms Farrell sought to make something out of a comparison between the injuries identified at [12] and the report of Associate Professor Barnsley, the submissions distract from the real issues.

24    The same may be said of the submissions for Ms Farrell about Dr Le Leu’s report dealing with injuries other than those identified at [12]. This may be so but, as we have said, the hearing before the Tribunal must be taken to have proceeded on the common ground that the relevant injuries were those identified in [12] of the Tribunal’s reasons, leaving aside bilateral cervicobrachial syndrome with which the Tribunal dealt separately at [30]-[34] of its reasons.

25    The Tribunal had before it evidence from Associate Professor Barnsley that Ms Farrell continued to suffer from tenosynovitis affecting her right hand and wrist but did not continue to suffer from left lateral epicondylitis, right epicondylitis (medial and lateral) or left synovitis and tenosynovitis. At paragraph 9 of his report Associate Professor Barnsley responded to the question: “Does Ms Farrell continue to suffer any or each of her accepted compensable conditions…?” He said that “she still has some evidence of tenosynovitis affecting the right hand and wrist”. He found no clinical evidence of left lateral epicondylitis, or left synovitis and tenosynovitis and no evidence of any persistent features of epicondylitis (which must have been a reference to both right and left sided epicondylitis).

26    At paragraph 10 of his report Associate Professor Barnsley responded to the next question:

If so, do you consider that Ms Farrell suffers from a permanent impairment as a result of any or each of her compensable conditions? In considering whether a condition “whether a condition is permanent, i.e. likely to continue indefinitely, regard is given to the duration of the impairment, the likelihood of improvement in the condition, whether the employee has undergone all reasonable rehabilitative treatment and any other relevant matters.

27    He said that “given the persistence of the pain in the right hand it is likely this will persist indefinitely.” He also said that he found no evidence of any persistent features of epicondylitis. In the context that the only injury that Associate Professor Barnsley considered Ms Farrell continued to suffer was tenosynovitis affecting her right hand and wrist, the reference to “this” must be to a permanent impairment of Ms Farrell’s right hand and wrist. It is the degree of this permanent impairment resulting from this injury that Associate Professor Barnsley then assessed under table 9.9 as a 3% whole person impairment.

28    With that evidence before it, and the competing evidence of Dr Le Leu that Ms Farrell had a 20% whole person impairment under table 9.14, the Tribunal expressed its conclusions at [25]-[29], as set out above. In so doing, although the Tribunal first referred to Associate Professor Barnsley’s assessment of her degree of impairment at [24], the Tribunal then made statements including the following (our emphasis in bold):

(a)    “It follows that it is a question for me—and not for medical experts—whether Ms Farrell’s impairment can be assessed under one or more of the tables listed above” (at [25]).

(b)    “I find that Ms Farrell’s impairment can be assessed under (at least) Tables 9.9.1a and 9.9.1b. I make that finding, noting that Associate Professor Barnsley was able to assess Ms Farrell’s impairment under those tables” (at [26]).

(c)    “I have found that her impairment can be assessed under at least two of those tables” (at [28]).

(d)    “I find that her WPI rating under Tables 9.9.1a and 9.9.1b is 3%, based on the assessment conducted by Associate Professor Barnsley” (at [29].

29    In his reasons for judgment (Farrell v Comcare [2015] FCA 1337; (2015) 148 ALD 527) the primary judge concluded that the Tribunal had made no finding as to the “permanent impairment” as required (at [29]). Instead, the Tribunal’s reasons “have all of the hallmarks of the Tribunal assessing the degree of impairment first by reference to the Tables and thereafter a finding of fact being made that there is no compensable impairment” (at [35]). The Tribunal’s decision thus could not stand because the “proper approach to the resolution of the claim is, initially, to determine whether the claim as made constitutes a “permanent impairment” and thereafter to determine the degree of that impairment” (at [34]).

30    Section 24(2) of the SRC Act provides that the decision-maker is required to determine whether an employee’s alleged impairment resulting from an injury is permanent (having regard to factors such as the duration of the impairment, the likelihood of improvement in the condition, whether the employee has undertaken all reasonable rehabilitative treatment and other relevant matters) and, if any such impairment is determined to be permanent, to decide the degree of any impairment. As the Full Court of this Court said in Whittaker v Comcare [1998] FCA 1099; (1998) 86 FCR 532 at 545:

…it is only permissible for Comcare to turn to the Guide once it has reached the conclusion, after taking into account the matters listed in s 24(2) of the Act, that the employee has suffered an injury which has resulted in a permanent impairment. The Guide then becomes relevant, but only insofar as it contains the criteria by reference to which Comcare must assess the degree of that employees permanent impairment.

31    As we said at [24] to [26] above, Associate Professor Barnsley expressed an opinion that Ms Farrell continued to suffer from tenosynovitis affecting her right hand and wrist. Then, by express reference to the factors made relevant by s 24(2), he said that given the persistence of the pain in her right hand it is likely that “this will persist indefinitely.” In effect he said she suffered a permanent impairment of her right hand and wrist.

32    While the Tribunal did not state, in terms, that it found that Ms Farrell suffered from only one injury which resulted in a permanent impairment, that is the effect of Associate Professor Barnsley’s opinion which the Tribunal must be seen to have accepted. He also said that Ms Farrell did not continue to suffer from any of her other accepted compensable conditions and, therefore, there could be no permanent impairment of those parts of her body. The Tribunal’s finding that Ms Farrell suffered a permanent impairment of the right hand and wrist is implicit in its statements that Ms Farrell’s “impairment” was able to be assessed under table 9.9 (at [28]) because Associate Professor Barnsley was able to do so (at [26]) and that the conclusion of a 3% whole person impairment was “based on the assessment conducted by Associate Professor Barnsley” (at [29]). It is also implicit from the fact that the use of table 9.9 pre-supposes the existence of an “impairment”.

33    The Tribunal must also be taken to have accepted Associate Professor Barnsley’s evidence identifying the only permanent impairment in its repeated references to “Ms Farrell’s” or “the” or her “impairment” as identified above, as well as its orthodox identification of the issues it had to decide (at [1], [15] and [16]), being, in shorthand, compensation for “permanent impairment” or, in the terms of s 24(1), compensation where “an injury to an employee results in a permanent impairment”).

34    Having said this, the Tribunal’s statement at [27] that “I agree that Ms Farrell’s impairment would be more appropriately assessed under table 9.14 [which deals with upper extremity function], because that table better reflects the totality of her impairment” gives rise to some ambiguity. It was submitted for Ms Farrell that this statement showed that the Tribunal failed to find what her permanent impairment was, held the view that her impairment was greater than the 3% whole person impairment that it found, or must have found that the impairment was the claimed impairment of “left and right arms” (discussed further below, under the next section of these reasons).

35    Again, on a fair reading of the Tribunal's decision, we do not accept this submission. First, the relevant statement does not alter the fact that the Tribunal found that table 9.9 could be applied based on Associate Professor Barnsley’s evidence. That necessarily involved an acceptance of Associate Professor Barnsley’s evidence that the only permanent impairment resulting from any injury was impairment to her right hand and wrist resulting from tenosynovitis affecting her right hand and wrist. While the statement introduces some ambiguity into the Tribunal’s reasons, it is insufficient to undermine the Tribunal’s acceptance of the evidence of Associate Professor Barnsley about both the nature of the permanent impairment and the degree of permanent impairment.

36    Second, the ambiguity is capable of explanation. The Tribunal knew that Ms Farrell suffered from another injury which Comcare accepted was compensable, being bilateral chronic pain syndrome in both arms. Ms Farrell’s claim for permanent impairment resulting from that injury was not before the Tribunal because of the agreement between the parties (see the footnote to [12] of the Tribunal’s reasons). As a result, the injury which had resulted in a permanent impairment of Ms Farrell's right hand and wrist was only part of her claimed impairment. The Tribunal also knew that Ms Farrell suffered from neck pain (being the bilateral cervicobrachial syndrome) which Dr Le Leu had said was one cause of the limitations on the use of her arms (at [31] of the Tribunal’s reasons).

37    The Tribunal thus knew that the total claimed “impairment” extended beyond the impairment of Ms Farrell’s right hand and wrist which it found, and included bilateral chronic pain syndrome in the arms which was not before the Tribunal, and neck pain (which the Tribunal later found (at [32] to [34]) was not relevantly related to employment). If the Tribunal’s task was to assess Ms Farrell’s overall impairment it might well have been the case that a table focused on functionality of the upper extremities would be more appropriate. But the Tribunal was not vested with this task and would have erred had it approached the case in that way. It was bound to determine for itself whether Ms Farrell suffered from a permanent impairment resulting from an employment related injury, and if so the degree of permanent impairment in accordance with the approved Guide. In our view the Tribunal did this, as we explained above.

38    Nor do we accept that the Tribunal failed to comply with s 43(2B) of the AAT Act. This section provides that where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. In our view the Tribunal acted upon and accepted the evidence of Associate Professor Barnsley who dealt with the issues of permanent impairment and degree of permanent impairment as provided for in the statute. The material findings of fact are those in the evidence the Tribunal accepted, namely that Ms Farrell suffered a permanent impairment of the right hand and wrist resulting from tenosynovitis of the right hand and wrist and that the degree of whole person impairment was 3%. To require more of the Tribunal is inconsistent with the orthodox approach to the review of reasons of an administrative decision-maker (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272). We do not accept that this reading of the Tribunal’s reasons involves an “uncertain process of implication” as concluded by the primary judge at [33]).

39    The requirement that the Tribunal must determine whether the employee suffers from permanent impairment resulting from an injury, before it can determine the degree of the permanent impairment, is a prescription relating to the substance of the Tribunal’s decision and not its form. Provided that, in substance, the material findings are made – permanent impairment resulting from an injury by reference to the factors in s 24(2) followed by a determination as to the degree of permanent impairment– the manner of expression of the Tribunal’s reasons will not usually involve error.

40    The final observation is this. As explained below, we consider that the primary judge’s approach to the task vested in the Tribunal by the SRC Act impermissibly grants to the claim a function – of determining the permanent impairment, the degree of which the decision-maker must then assess – which the claim does not have. On this basis, it can be seen that the primary judge’s construction of the statute must have affected his conclusion about the Tribunal’s findings of fact. The primary judge was searching for a determination by the Tribunal of the claimed permanent impairment of “left and right arms”. There was no such finding, but not for the reason that the Tribunal made no finding at all. There was no such finding because the Tribunal determined for itself, as it was required to do, that the only permanent impairment was, as Associate Professor Barnsley had concluded, a permanent impairment of the appellant’s right hand and wrist.

41    For these reasons, we consider that the Tribunal did not err in the way the primary judge concluded in respect of the fact finding issue.

The legislation issue

42    Nor do we consider that the Tribunal erred in respect of the legislation issue.

43    As noted, at [34] the primary judge said that the “proper approach to the resolution of the claim is, initially, to determine whether the claim as made constitutes a ‘permanent impairment’ and thereafter to determine the degree of that impairment”. However, the claim as made cannot constitute a permanent impairment. Nor can it define for the decision-maker whether there is a permanent impairment. The statute does not require a determination whether the claim as made constitutes a permanent impairment. It requires a claimed injury (s 53(1)) and a determination of whether the claimed injury (related to employment in the sense required by the definition of “injury” in s 5A(1)(b) of the SRC Act) has resulted in a permanent impairment. That determination, under s 24(2), is to be made with respect to each injury (see Canute as referred to above) and having regard to the factors set out in s 24(2)(a) to (d); the claim itself cannot determine the existence or nature of the impairment. If made, the degree of permanent impairment is then to be assessed in accordance with the approved Guide, as provided for in s 24(5).

44    A claim under s 24 involves the assertion that the employee suffers from an employment related injury (as required by s 5A(1)(b)) and permanent impairment resulting from that injury. However the claim cannot “constitute” or define the permanent impairment. It is for the decision-maker to determine whether the employee suffers from a permanent impairment resulting from an “injury”, doing so by reference to the factors in s 24(2).

45    If applied, the primary judge’s formulation at [34], which requires the decision-maker to determine whether “the claim as made constitutes a permanent impairment” would remove from the decision-maker the task vested in it by s 24(2) – to decide for itself whether the employee suffers from a permanent impairment. No doubt, in so doing, the decision-maker would be responding to the claim as made. But the claim is (or should be) one for permanent impairment resulting from an injury which it is then a matter for the decision-maker to decide. If it were otherwise, the claim would be given a function in the statutory scheme which, by the statutory provisions, it does not have.

46    The distinction between the claim and the finding of permanent impairment by the decision-maker is important because it is apparent that the primary judge’s subsequent analysis is focused on the claim of permanent impairment made and not the decision-maker’s determination of the permanent impairment.

47    The primary judge said that even if the Tribunal did make the key factual finding of a permanent impairment the decision of the Tribunal still had to be set aside (at [36]) because the Tribunal erred in finding that the impairment the subject of the claim (which was for left and right arms) could be assessed under table 9.9, which relates to wrists (at [37]). It is the words “the subject of the claim” that are critical in this observation of the primary judge. Because “the subject of the claim” was an impairment to the left and right arms (we interpolate, as a whole), the primary judge concluded that it must be wrong for the Tribunal to have assessed the degree of that claimed impairment by reference to a table dealing with the wrists. However, as we have discussed, this is to remove from the decision-maker the function of determining whether an employee suffers from a permanent impairment resulting from an “injury”. It has a tendency to give the claim a function which it does not have (that is, of defining the permanent impairment, leaving it to the decision-maker only to determine the degree of that claimed permanent impairment).

48    It is this reasoning which led the primary judge to say at [42] that:

a claimed impairment or permanent impairment in respect to arms “cannot be assessed” by reference to Tables directed to “assess[ing] impairments to range of motion of the wrists” and, in particular to an assessment of “Wrist flexion/extension” (Table 9.9.1a) and/or “Radial and ulnar deviation of wrist joint” (Table 9.9.1b). Although “impairments to range of motion of the wrists” may say something as to the “impairment” claimed by Ms Farrell in the limitations experienced in the use of her arms, neither Tables 9.9.1a nor 9.9.1b were directed to – nor intended to apply to – the assessment of that “permanent impairment”.

49    This then led his Honour to say the following (and in these paragraphs, we have placed in bold the references to the impairment as claimed, by which we consider the primary judge departed from the requirements of the statute):

43 The phrase “cannot be assessed” is thus to be construed in a manner which ensures that any assessment which is undertaken is informed by reference to medically meaningful and relevant criteria. An assessment of one impairment which is the product of the application of Tables containing criteria of relevance to a different “impairment” is no “assessment” at all. The impermissible conscription of such Tables in such circumstances results in the failure of Comcare (and the Tribunal) to “determine the degree of permanent impairment” as required by s 24(5) of the Compensation Act.

44 In the absence of further explanation by (for example) informed medical practitioners, a claimed impairment “cannot be assessed” by reference to Tables containing criteria directed to a different impairment. In some circumstances it may be possible, for example, that a medically meaningful assessment of one impairment may be made by reference to another, different impairment. It may be that in some clinical settings that is the very manner in which an assessment is undertaken. One impairment may be the consequence of another; or one impairment, albeit unrelated, may provide some medical insight into the extent of another impairment.

45 Although the report of Associate Professor Barnsley did expressly employ Tables 9.9.1a and 9.9.1b, the report – with respect – fails to provide any assistance as to how those Tables might provide any meaningful clinical input to an assessment of the “degree” of “permanent impairment” with respect to the “left and right arms”.

46 Those Tables, in the absence of explanation, are ill-suited to effect any assessment of the “degree” of “permanent impairment” the subject of Ms Farrell’s claim. The Tribunal recognised as much in its reasons at para [27] when observing that Ms Farrell’s “impairment would be more appropriately assessed under Table 9.14…”. Although it may be open to conclude that Tables 9.9.1a and 9.9.1b “could” be employed to effect some assessment, the phrase “cannot be assessed” remains a phrase which permits neither the employment of Tables ill-equipped to assess a claimed “impairment”, nor Tables employing “criteria” which are not self-evidently relevant to that “impairment”. What is called for in order for there to be a lawful determination of the “degree” of impairment is a medically meaningful assessment of that impairment. If the Tables do not provide a meaningful and clinically reliable answer, an impairment “cannot be assessed” employing that Table. In such circumstances, the Guide provides that recourse is to be had to the AMA Guidelines. That is the route which should have been followed in the present case. The term “cannot”, on such an approach, is to be construed so as to direct attention towards a medically meaningful assessment.

50    The problem of principle in these paragraphs is that they give to the claim the function of defining the relevant permanent impairment when, by s 24(1) and (2), this is a matter for the decision-maker, having regard to the factors set out in s 24(2). The problem of fact in these paragraphs is that they do not recognise that the Tribunal accepted Associate Professor Barnsley’s evidence that Ms Farrell only suffered a permanent impairment resulting from one injury, being tenosynovitis affecting her right hand and wrist.

51    The task of the Tribunal, having found a permanent impairment from a single relevant injury – was to decide if that permanent impairment was a condition that “cannot be assessed under a specific table in the upper extremities group” (as provided for in the Introduction to Part II of the approved Guide). The task of the Tribunal was not to determine if the claimed permanent impairment (“left and right arms”) resulting from an injury “cannot be assessed under a specific table in the upper extremities group”.

52    This construction of the statute does not mean, as suggested for Ms Farrell, that the approved Guide can be (or in the present case is being) used to deny liability imposed by the SRC Act. We accept that the approved Guide cannot alter the operation of the SRC Act (Broadhurst v Comcare [2010] FCA 1034; (2010) 189 FCR 561 at [16]), but the relevant point for present purposes is that it was for the Tribunal to determine whether the appellant suffered, and if so what, permanent impairment. The claim could not perform that function. It was then for the Tribunal to decide the degree of the permanent impairment under the provisions of the approved Guide.

53    Nor is it the case, as contended for Ms Farrell, that the primary judge concluded that the Tribunal, if it found permanent impairment at all, found it was an impairment of Ms Farrell’s left and right arms as she claimed. To the contrary, the primary judge’s reasoning was that the claim itself determined the permanent impairment which had to be assessed (in this case, a claim for impairment of the left and right arms).

54    Once the correct statutory context is identified, it is apparent that it was within the Tribunal’s fact finding function to conclude on the basis of Professor Barnsley’s evidence that Ms Farrell’s impairment was able to be assessed under table 9.9, dealing with the range of movement of the wrist. To conclude otherwise, on a proper appreciation of the task vested in the Tribunal by the provisions of the SRC Act, would be to interfere with the fact finding function of the Tribunal in a manner impermissible in an appeal limited to questions of law.

Conclusions

55    For the reasons given above, the appeal must be allowed, and orders made to ensure the decision of the Tribunal stands.

Associate:

Dated:    16 September 2016