FEDERAL COURT OF AUSTRALIA

Lopez Avila v K & S Freighters Pty Ltd [2015] FCA 962

REASONS FOR JUDGMENT

1    Mr Lopez Avila appeals from a decision of the Administrative Appeals Tribunal given on 31 March 2015 affirming a decision made by the respondent on 6 August 2013 deciding that it had no present liability to pay compensation to Mr Lopez Avila.

2    Mr Lopez Avila had sustained an injury to his left wrist on 19 March 2008 for which the respondent had been liable in the past to pay compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Compensation Act”). The respondent is a “licensed corporation” within the meaning of the Compensation Act and, as such, is liable to pay compensation in accordance with the Compensation Act in respect of an injury that results in incapacity for work. Mr Lopez Avila had been employed by the respondent as a truck mechanic since 2004 and by 19 March 2008 had developed a degenerative and severe osteoarthritis in both of his hands. On 19 March 2008 he suffered an aggravation of his underlying arthritis in his left wrist when it was struck by either a nut or a socket projected at force. Mr Lopez Avila had lodged a claim for compensation in respect of a left wrist fracture in respect of which the respondent accepted liability on 23 May 2008. Mr Lopez Avila returned to work as a truck mechanic on 10 June 2008 on lighter duties wearing a wrist splint with a metal sleeve. The Tribunal found at [20] of its reasons that Mr Lopez Avila, after the injury, “continued to work, the restrictions on his duties were gradually reduced, rehabilitation was arranged by the employer and by 24 November 2008 [Mr Lopez Avila] was working full time without restrictions”. All compensation payments ceased on 10 June 2008 when Mr Lopez Avila returned to full time work.

3    On 17 October 2012 Mr Lopez Avila’s legal representatives submitted to the respondent that Mr Lopez Avila remained incapacitated for employment and was entitled to income support in connection with the injury to his left wrist which had been sustained some four and a half years previously. Mr Lopez Avila was no longer at work by 17 October 2012 and had not attended work since 24 August 2012 in circumstances to be mentioned below. On 19 December 2012 the respondent determined to deny any present liability for the March 2008 injury. The respondent subsequently decided that it ought to have made a determination under s 14 of the Compensation Act and on 6 August 2013 made a reviewable decision of its own motion setting aside its 19 December 2012 determination and determined that at present no liability existed for it to pay compensation in respect of the claim under s 14 of the Compensation Act. On 15 January 2013 Mr Lopez Avila requested a reconsideration of the 19 December 2012 determination which the respondent affirmed on 14 February 2013. On 26 March 2013 Mr Lopez Avila applied to the Tribunal for a review of the decision affirmed on 14 February 2013. Mr Lopez Avila had also made another claim for psychiatric injury which was also referred to the Tribunal in a separate proceeding but, as the Tribunal noted at [13] and [14] of its reasons, Mr Lopez Avila withdrew the other claim on the second day of the hearing and the Tribunal proceeded thereafter only with the application to review the respondent’s decision made on 6 August 2013 in substitution of its earlier decision made on 19 December 2012 and affirmed on 14 February 2013. The Tribunal affirmed that decision on 31 March 2015.

4    The appeal to this Court is brought under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the Tribunal Act”) which requires the identification of a question of law: Osland v Secretary, Department of Justice (2010) 241 CLR 320, 333 [21]; TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175, 178. In Haritos v Commissioner of Taxation [2015] FCAFC 92 the Full Court said at [62]:

(1)    The subject-matter of the Court’s jurisdiction under s 44 of the AAT Act is confined to a question or questions of law. The ambit of the appeal is confined to a question or questions of law.

(2)    The statement of the question of law with sufficient precision is a matter of great importance to the efficient and effective hearing and determination of appeals from the Tribunal.

(3)    The Court has jurisdiction to decide whether or not an appeal from the Tribunal is on a question of law. It also has power to grant a party leave to amend a notice of appeal from the Tribunal under s 44.

(4)    Any requirements of drafting precision concerning the form of the question of law do not go to the existence of the jurisdiction conferred on the Court by s 44(3) to hear and determine appeals instituted in the Court in accordance with s 44(1), but to the exercise of that jurisdiction.

(5)    In certain circumstances it may be preferable, as a matter of practice and procedure, to determine whether or not the appeal is on a question of law as part of the hearing of the appeal.

(6)    Whether or not the appeal is on a question of law is to be approached as a matter of substance rather than form.

(7)     A question of law within s 44 is not confined to jurisdictional error but extends to a non-jurisdictional question of law.

(8)    The expression “may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal” in s 44 should not be read as if the words “pure” or “only” qualified “question of law”. Not all so-called “mixed questions of fact and law” stand outside an appeal on a question of law.

(9)    In certain circumstances, a new question of law may be raised on appeal to a Full Court. The exercise of the Court’s discretion will be affected not only by Coulton v Holcombe [1986] HCA 33; 162 CLR 1 considerations, but also by considerations specific to the limited nature of the appeal from the Tribunal on a question of law, for example the consideration referred to by Gummow J in Federal Commissioner of Taxation v Raptis [1989] FCA 557; 89 ATC 4994 that there is difficulty in finding an “error of law” in the failure in the Tribunal to make a finding first urged in this Court.

(10)    Earlier decisions of this Court to the extent to which they hold contrary to these conclusions, especially to conclusions (3), (4), (6) and (8), should not be followed to that extent and are overruled. Those cases include Birdseye v Australian Securities and Investments Commission [2003] FCA 232; 76 ALD 321, Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244, 133 FCR 290, Etheridge, HBF Health Funds and Hussain v Minister for Foreign Affairs [2008] FCAFC 128; 169 FCR 241.

5    The notice of appeal identified 7 questions of law said to be raised by the appeal, namely:

1.    Whether the Tribunal in assessing the present liability of the respondent to pay compensation to the applicant under s.19 of the Safety Rehabilitation and Compensation Act 1988 (“SRC Act”) as a result of the applicant’s left wrist injury correctly applied the definition of incapacity set out in s.4(9) of the SRC Act, in that s.4(9) required the Tribunal to assess the applicant’s ability to:

a.    engage in “any work” as required by s.4(9)(a); or

b.    engage in work “at the same level” as required by s.4(9)(b).

2.    Whether the Tribunal in assessing the present liability of the respondent to pay compensation to the applicant under s.19 of the SRC Act as a result of the applicant’s left wrist injury, having determined that it was his emotional state that was the cause of his incapacity, failed to correctly apply the definition of incapacity set out in s.4(9) of the SRC Act, in that s.4(9) required the Tribunal to consider the evidence as to whether the applicant’s left wrist injury was also concurrently a cause of incapacity within the meaning of that section.

3.    Whether the Tribunal had any regard to the medical evidence as to incapacity caused by the applicant’s left wrist injury, which was relevant to the question of the applicant’s incapacity for work as defined in s.4(9) of the SRC Act.

4.    Whether the Tribunal in determining the present liability of the respondent to pay compensation to the applicant had any regard to the lay evidence which was not contradicted and which was relevant to the question of the applicant’s incapacity for work as defined in s.4(9) of the SRC Act.

5.    Whether the Tribunal in determining the present liability of the respondent to pay compensation to the applicant failed to apply s.16 of the SRC Act.

6.    Whether the Tribunal in determining the present liability of the respondent to pay compensation to the applicant under the SRC Act, failed to have any regard to the evidence from medical experts and the lay evidence of the applicant, which was relevant to the question of the applicant’s entitlement to medical expenses under s.16 of the SRC Act.

7.    Whether the Tribunal delivered adequate reasons for its decision to affirm the decision under review.

The first four questions are concerned with the construction or application of s 4(9) of the Compensation Act. The fifth question is concerned with whether the Tribunal failed to apply s 16 of the Compensation Act. The sixth question is related to the fifth and asks whether the Tribunal failed to have regard to evidence in relation to the inquiry under s 16 of the Compensation Act. The last question concerns the adequacy of the reasons of the Tribunal.

6    The first ground relied upon by Mr Lopez Avila was expressed as a failure by the Tribunal correctly to apply the definition of “incapacity” in s 4(9) of the Compensation Act. Section 4(9) of the Compensation Act provides:

A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:

(a)    an incapacity to engage in any work; or

(b)    an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.

In applying this provision the Tribunal was required to consider, and to find, whether Mr Lopez Avila had an incapacity “to engage in any work” or an incapacity to “engage in work at the same level” at which he had been engaged with the respondent. Those words are not separately defined and may be taken to have their natural and ordinary meaning: see Thompson v Armstrong and Royse Pty Ltd (1950) 81 CLR 585, 613; Lonergan v Comcare (2005) 143 FCR 307, 312 [23]. The focus of the inquiry to be undertaken under s 14 is an employee’s capacity to work, or to work at a level although it may be necessary for that in inquiry to consider whether Mr Lopez Avila was by reason of his injury able to sell his labour in the open market (Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171, 177-8) or whether the injury produced either partial or total incapacity (Chapman v Australian Postal Corporation [2000] FCA 1700 at [7]).

7    The Tribunal correctly embarked upon the statutory task of determining whether Mr Lopez Avila had an incapacity “to engage in any work” or “to engage in work at the same level” and found on the evidence that Mr Lopez Avila was not incapacitated to engage in the work he had been undertaking before the March 2008 injury because he had been engaged in that work on a full time basis for some four and a half years from 2008 until the unrelated events of 24 August 2012. The Tribunal said at [53]-[56]:

53.    However, at 24 August 2012, the applicant was working on a full-time basis and he had not attended doctors from [sic] many years for treatment of his left wrist.

54.    I am satisfied that the evidence of the three specialists engaged by the applicant’s solicitors on a medico-legal basis is to be preferred in so far as they were of the opinion that the assault on the applicant’s wrist on 19 March 2008 did cause an aggravation of his pre-existing arthritic disease. But for the reasons expressed above, it did not precipitate incapacity.

55.    Any work-related aggravation of the arthritic disease did not incapacitate him before 24 August 2012 after he returned to full-time unrestricted duties in November 2008. Additionally, there was no evidence, that the disease had progressed beyond 24 August 2012 to a point where it could be found on the probabilities that he was incapacitated subsequently as a result of the work-related aggravation of the disease process. But for the events on 24 August 2012, I am satisfied the applicant would have continued working.

56.    The evidence of Dr McCarthy suggested a deterioration of the applicant’s left wrist after she first saw him in September 2012. There was no evidence that the deterioration, if at all, was a consequence of an aggravation by the previous employment or the anticipated progress of the disease which preceded the employment.

At [60] the Tribunal said that Mr Lopez Avila had “worked between November 2008 and 24 August 2012” and that his “left wrist did not incapacitate him in that period”. That finding was open on the evidence and there was no error in the application of that evidence to that finding and to the conclusion flowing from it, namely, that Mr Lopez Avila did not have an incapacity from the March 2008 injury to engage in any work or to engage in work at the same level at which he had been engaged with the respondent.

8    The submission that the Tribunal did not consider whether the 2008 injury caused Mr Lopez Avila’s incapacity to work after 24 August 2012 cannot be accepted. The Tribunal expressly found that whatever may have been Mr Lopez Avila’s condition it did not cause any incapacity after 24 August 2012. In addition to the passages quoted above, the Tribunal said at [49]:

However I am not satisfied on the medical evidence that the applicant has been incapacitated since 24 August 2012 by reason of the left wrist injury.

The Tribunal’s finding that the cause of any incapacity after 24 August 2012 to work (either at all or at the pre-March 2008 injury level) was the events that occurred on or from 24 August 2012 might itself be sufficient to carry the finding that the cause was not something else but the Tribunal in this case specifically considered and rejected the submission that the cause of any post 24 August 2012 incapacity was the March 2008 injury. Mr Lopez Avila had given contrary evidence but the Tribunal was not bound to accept it and could find as it did even without an adverse finding on credit.

9    In reaching its conclusion the Tribunal correctly and appropriately took into account the events which had occurred on, and after, 24 August 2012. By 24 August 2012 the respondent appeared to have concerns about Mr Lopez Avila’s performance at work. He had by then been working for some four and a half years after his wrist injury in respect of which no further compensation was sought and no further compensation was paid. On 23 August 2012 a truck on which Mr Lopez Avila had completed mechanical work was road tested and found to have defective steering. An inspection of the truck revealed that a piece of timber which had been used to support a gearbox whilst it was being replaced had not been removed and was jammed adjacent to the steering axle. A complaint was made about the quality of Mr Lopez Avila’s work and on 24 August 2012 Mr Lopez Avila was asked to attend a meeting with a Mr Whiteway at which Mr Lopez Avila was given a letter recording that his work performance had been found to be unsatisfactory. Mr Lopez Avila attended that meeting with a union representative and was asked to sign the letter which his union representative advised him to sign as Mr Whiteway had requested. The letter also said that it was expected that Mr Lopez Avila would improve his performance immediately but that if it did not, disciplinary action, including possible termination of employment, could occur. Mr Lopez Avila became upset during the meeting and Mr Whiteway suggested to him that he should go home, speak with his family about the letter, and, as found by the Tribunal, “return to work on Monday to discuss, with [Mr Whiteway], the terms of a performance improvement plan”. Mr Lopez Avila did not return to work on the following Monday, or ever again, but, rather, on 4 September 2012 lodged a claim for compensation as a consequence of the meeting on 24 August 2012 claiming “anxiety, depression and post-traumatic stress disorder”.

10    There was no error in the Tribunal considering those circumstances in the context of determining Mr Lopez Avila’s incapacity from the injury which had occurred some four and a half years previously. In doing so the Tribunal took into account the medical evidence, including the evidence relating to the condition of his wrist. The Tribunal was not bound to find that the March 2008 injury resulted in Mr Lopez Avila being incapacitated and was able to find on the evidence that the March 2008 injury did not cause an incapacity for him to engage in any work or to engage in work at the same level at which he had worked with the respondent.

11    The evidence available to the Tribunal included that of Dr McCarthy suggesting that there had been a deterioration of Mr Lopez Avila’s left wrist after she had first seen him in September 2012, but the Tribunal found that there “was no evidence that the deterioration, if at all, was a consequence of an aggravation by the previous employment or the anticipated progress of the disease which preceded the employment”. Mr Lopez Avila had initially attended medical practitioners after 24 August 2012 in relation to his anxiety, panic and depression problems during which he gave a history of having previously been bullied and discriminated against at his workplace. The Tribunal found that Mr Lopez Avila had attended doctors at the Coburg clinic on 17 occasions between 4 April 2008 and 27 August 2012 with no record of any occasion being in respect of the March 2008 injury. His first complaint about wrist pain since 4 April 2008 was made on 18 September 2012 at a time when he was distressed about the absence of income and his consequent inability to meet mortgage repayments. The Tribunal was also able to observe Mr Lopez Avila when giving evidence and was able to take into account the state of distress of Mr Lopez Avila.

12    The second question of law identified by Mr Lopez Avila raised a consideration of whether the Tribunal incorrectly applied the definition of incapacity by failing to consider “the evidence as to whether [Mr Lopez Avila’s] left wrist injury was also concurrently a cause of incapacity”. In that regard it may be accepted, as was submitted for Mr Lopez Avila, that the advent of a later non-compensable injury or condition must be disregarded in considering what incapacity arises from the earlier compensable condition: Ward v Corrimal-Balgownie Collieries Ltd (1938) 61 CLR 120, 130-1. It may also be accepted that it is not necessary for incapacity to result solely from a compensable injury before compensation is payable as a consequence of that injury: Re Commonwealth of Australia v Smith (1989) 10 AAR 277, [17]. The Tribunal, however, did not fall into the error submitted by Mr Lopez Avila. Its findings were that between November 2008 and 24 August 2012 Mr Lopez Avila could perform work at the same level at which he had been engaged immediately before the March 2008 injury and that after 24 August 2012 his inability to work was not as a result of that injury. The Tribunal at [15] correctly identified the injury in question and when it had occurred. It later considered the work which Mr Lopez Avila was engaged to perform for the respondent and at what level he had been engaged to perform the work immediately before the injury: see [17]-[21] and [39]-[41]. It went on to ask whether Mr Lopez Avila was incapacitated from engaging in work at the same level at which he was engaged to work by the respondent: see [40]-[48].

13    The third and fourth questions of law are concerned with whether the Tribunal had failed to have regard to relevant medical and lay evidence of Mr Lopez Avila’s incapacity. The submissions for Mr Lopez Avila contended that the Tribunal ignored evidence (i) that Mr Lopez Avila was restricted by his wrist symptoms in heavy tasks at work, (ii) that Mr Lopez Avila was struggling to perform his duties prior to 24 August 2012, (iii) that Dr Ong had suggested permanent restrictions, and (iv) of Mr Wilson. Mr Lopez Avila also challenged the Tribunal’s finding at [55] that Mr Lopez Avila had been working with unrestricted duties from November 2008 to 24 August 2012.

14    The Tribunal had probative evidence to support the findings it made (see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 356 [109]) and the presence of other evidence suggesting a different finding which could, or even should, have been made does not amount to an error of law: Waterford v The Commonwealth (1987) 163 CLR 54, 77; Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220, 257-8 [147]. Contrary to the submission, however, the Tribunal did not ignore the evidence of Mr Lopez Avila’s restrictions and difficulties in performing his duties. The Tribunal specifically referred to evidence of the types of restrictions and difficulties Mr Lopez Avila was said to have had in undertaking his work but explained why these did not persuade the Tribunal that Mr Lopez Avila suffered incapacity for work.

15    The evidence of Mr Wilson was not erroneously ignored by the Tribunal. The Tribunal was not obliged to deal specifically with evidence it did not consider material to the reasons for its decision: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323, 338 [35] and 346 [69]. Mr Wilson had referred to specific restrictions suffered by Mr Lopez Avila which were referred to in the Tribunal’s reasons for decision. Mr Wilson was a lay witness who worked with Mr Lopez Avila after the March 2008 injury. The restrictions Mr Wilson referred to were: Mr Lopez Avila taping up his wrist “for many months after the accident”; Mr Wilson being told by Mr Lopez Avila that his wrist caused him pain; Mr Lopez Avila being unable to pick up and move truck clutches and heavy items; Mr Lopez Avila not being able to hold a “one inch rattle gun”; and Mr Lopez Avila having difficulty using a spanner because he struggled to bend his wrist. Most of these restrictions were expressly referred to by the Tribunal. At [21] the Tribunal said:

However, the applicant said that he worked in the presence of pain and was taking Panadol Osteo daily. He had ceased using the wrist splint and on occasions when he suffered an exacerbation of pain he bandaged his wrist. On occasions he needed assistance from another employee when required to perform heavy lifting. He also noticed a reduction in the range of movement of his left wrist.

Subsequently at [41]-[42] the Tribunal said:

41.    It was not apparent from the documents lodged before the hearing that although the applicant continued to perform his pre-injury duties, he modified his work when heavy lifting by using his right hand and his left forearm. Nonetheless, it appears that he was not prohibited from undertaking any work but there were occasions when some jobs were undertaken with the assistance of another person.

42.    The applicant worked until 24 August 2012. There were occasions when he worked in the presence of pain and there were occasions when his wrist was bandaged but he was not incapacitated. Although he took Panadol Osteo on occasions for relief of pain, he had not seen any doctors for treatment of his wrist between 10 June 2008 (Mr Goldwasser) and 18 September 2012 when he attended the Sunshine clinic.

Although not every detail referred to by Mr Wilson may have been mentioned, and although Mr Wilson himself may not have been mentioned, it is plain that the substance of the evidence Mr Wilson gave was taken into account by the Tribunal but that the Tribunal was not persuaded that it demonstrated that Mr Lopez Avila was incapacitated for work. The contrary evidence available to the Tribunal included the fact that Mr Lopez Avila had worked some four and a half years before 20 August 2012 and that during that time he continued to fulfil his duties as a motor mechanic as he had fulfilled those duties before the injury. The Tribunal also had the evidence of Mr Lopez Avila attending a doctor on 17 occasions between 4 April 2008 and 27 August 2012 without ever seeking medical attention for his left wrist or otherwise suggesting to his employer that it was causing him difficulty such as to affect his capacity to work at all or at the relevant level.

16    The Tribunal also had evidence upon which it could find that Mr Lopez Avila had been working performing unrestricted duties from 24 November 2008 to 24 August 2012. On 24 November 2008 Dr Ordonez certified Mr Lopez Avila as fit for normal duties. On 3 February 2009 Mr Lopez Avila attended a medical assessment with Professor Hart whose subsequent report stated that he had seen Mr Lopez Avila and that Mr Lopez Avila had said “that he had resumed normal duties on the 24 November 2008 and had been working since then without any difficulty. He was performing his normal work”. Under cross-examination Mr Lopez Avila accepted that he had not been told by his supervisor that he was not performing his duties properly but that, to the contrary, he had been told that he could still be doing the things he was required to do at work if he had not had mental health issues arising from the events of 24 August 2012. In cross-examination Mr Lopez Avila assented to a question put to him that at the time of the conversation with Mr Whiteway on 24 August 2012 he had been doing his normal duties with the respondent.

17    It was also submitted for Mr Lopez Avila that the Tribunal had failed to consider the evidence of Dr Ong about permanent restrictions. The Tribunal’s finding at [55] was:

Any work-related aggravation of the arthritic disease did not incapacitate him before 24 August 2012 after he returned to full-time unrestricted duties in November 2008. Additionally, there was no evidence, that the disease had progressed beyond 24 August 2012 to a point where it could be found on the probabilities that he was incapacitated subsequently as a result of the work-related aggravation of the disease process. But for the events on 24 August 2012, I am satisfied the applicant would have continued working.

The evidence of Dr Ong had been of a recommended maximum lifting capacity of 25kg but that lifting more than 25kg was risky particularly in the future as Mr Lopez Avila’s degeneration of his pre-existing underlying arthritis advanced. The recommendation had been made in the light of the observation of a restricted range of movement in both wrists as a result of significant pre-existing degenerative osteoarthritis which Dr Ong considered would gradually worsen. The evidence of Dr Ong was not that Mr Lopez Avila was prevented from undertaking his normal duties.

18    The fifth and sixth questions of law concerned the application of s 16 of the Compensation Act. Mr Lopez Avila contended that the Tribunal was required to apply s 16 to allow him his medical expenses. On 17 October 2012 his solicitors had sought payment of compensation for medical expenses in respect of the left hand and wrist injury that he had sustained in March 2008. It was submitted for Mr Lopez Avila that the Tribunal was obliged to consider his entitlement for medical expenses under s 16 of the Compensation Act in considering the respondent’s present liability in respect of the left wrist claim.

19    The case before the Tribunal was not conducted on the basis that claims under s 16 had been made or were to be considered by the Tribunal. The letter sent on his behalf on 17 October 2012 made no claims for specific sums. His initial claim for compensation in 2008 made no claim for medical expenses and the Senior Member specifically referred both to s 14 liability being the only issue arising for determination and, significantly, to the Tribunal’s understanding that it was prohibiting from looking at s 16. In that regard the Tribunal member specifically referred to the decision of this Court in Comcare v Lofts (2013) 217 FCR 220 (Mortimer J) bearing on that topic. Counsel for Mr Lopez Avila did not put s 16 in issue during the course of the hearing or in opening or closing submissions. In those circumstances there can be no error in the Tribunal not having considered a matter that was not put to the Tribunal for its consideration: Cao v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 52, [35]; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441, 457 [31]-[32]; Commissioner of Taxation v Glennan (1999) 90 FCR 538, 558 [82].

20    Furthermore, the question of s 16 was not formally engaged by the Tribunal as part of the reviewable decision which had been made by the respondent. The respondent’s reviewable decision was limited to the question of liability under s 14 of the Compensation Act and it did not include, either expressly or impliedly, liability for compensation by way of medical expenses: see Comcare v Lofts (2013) 217 FCR 220, 232 [57], 236 [86]. Such reference as there was to claims for medical expenses and medication were not of specific amounts (see Comcare 224-5 [14]-[15]) and did not form part of the issues engaged by the decision or the application for its review. There is, however, as counsel for the respondent conceded, nothing to prevent Mr Lopez Avila from making a formal application under s 16.

21    The seventh question is concerned with the adequacy of the reasons given by the Tribunal for its decision to affirm the decision under review. The Tribunal is obliged when making decisions to give its reasons including its findings on material questions of fact and the evidence or other material upon which those findings are based: Tribunal Act, s 43(2) and (2B). A failure will amount to an error of law, as will the making of findings without evidence: Martin v Australian Postal Commission [1999] FCA 655, [18].

22    A challenge to the adequacy of the reasons of the Tribunal does not permit, however, merits review. The Tribunal’s reasons will not be found to be inadequate because it had evidence upon which it could have reached another conclusion or because a different form of reasoning might have been adopted. A challenge to a decision on the basis of the adequacy of reasons is not an occasion to re-argue the merits of the findings upon evidence. Sections 43(2) and 43(2B) of the Tribunal Act provide:

(2)    Subject to this section and to sections 35 and 36D, the Tribunal shall give reasons either orally or in writing for its decision.

[…]

(2B)    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.

These provisions require that the Tribunal expose its thought process of decision: Secretary, Department of Employment and Workplace Relations v Homewood (2006) 91 ALD 103, 111 [40]; National Australia Bank Ltd v Georgoulas (2013) 217 FCR 382, 400-1 [80]-[82]; Comcare v Martinez (No 2) (2013) 212 FCR 272, 296 [98]; see also Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 345-6 [67]-[68]. In reviewing the reasons it is important to take heed of the caution against an overzealous or fine tooth comb reading of the Tribunal’s reasons: see Roncevich v Repatriation Commission (2005) 222 CLR 115, 136 [64].

23    The Tribunal’s reasons were adequate to expose its process of reasoning and included the findings on material questions of fact by reference to the evidence or other material in which those findings were made. A reading of the Tribunal’s reasons reveal why, and on what findings and evidence, the respondent was not liable to pay compensation in respect of the March 2008 injury suffered by Mr Lopez Avila, namely, that the March 2008 injury did not result in incapacity for work within the meaning of s 14 as defined by s 4(9).

24    Accordingly, the appeal will be dismissed.

Associate:

Dated:    28 August 2015