FEDERAL COURT OF AUSTRALIA

Farrell v Comcare [2015] FCA 1337

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The matter is remitted to the Administrative Appeals Tribunal for reconsideration in accordance with law.

3.    The Respondent is to pay the costs of the appeal.

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

REASONS FOR JUDGMENT

1    The Appellant in the present proceeding, Ms Donna Farrell, commenced work at the Australian Bureau of Statistics in 1986. As part of her responsibilities she was required to perform a lot of repetitive key strokes and “mouse clicking” when using a computer.

2    She began experiencing pain and made claims for compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the “Compensation Act”).

3    Now in question is a decision of the Administrative Appeals Tribunal (the “Tribunal”) published in April 2015: Re Farrell and Comcare [2015] AATA 268. In that decision the Tribunal affirmed a decision denying compensation. The Tribunal concluded that the “impairment” for which Ms Farrell claimed compensation could be assessed under Tables 9.9.1a and 9.9.1b of a document titled Guide to the Assessment of the Degree of Permanent Impairment (ed., 2.1) (the “Guide”). Using those Tables, the Tribunal assessed Ms Farrell’s “whole person impairment” at less than 10%. The Tribunal concluded that Comcare was not liable to pay compensation pursuant to ss 24 or 27 of the Compensation Act.

4    In May 2015 a Notice of Appeal was filed in this Court. An Amended Notice of Appeal was filed in July 2015 identifying 7 “questions of law”. The written Outline of Submissions filed on behalf of the Appellant helpfully summarises the “principal” issues to be resolved as being whether the Tribunal erred:

    in its construction of the phrase “cannot be assessed” as that phrase is used in the Introduction to Part II of the Guide; and

    in failing to assess the degree of permanent impairment the subject of the claim made by Ms Farrell.

At the heart of the dispute is whether the Tribunal was correct to place reliance upon Tables 9.9.1a and 9.9.1b of the Guide – Senior Counsel on behalf of Ms Farrell contended that her “impairment” could not be assessed pursuant to those Tables and that recourse should have been made to the American Medical Association’s Guides to the Evaluation of Permanent Impairment (5th ed., 2001) (the “AMA Guidelines”); Counsel on behalf of Comcare contended that recourse was rightly had to the Tables.

5    It is concluded that the appeal should be allowed either because:

    the Tribunal has failed to make any finding of fact as to what was the “permanent impairment” which was the subject of the claim made by Ms Farrell; or

    to the extent that the reasons for decision of the Tribunal can be construed as containing a finding that Ms Farrell in fact suffered from a “permanent impairment” of the kind described in her claim, the Tribunal erred in assessing the “degree” of that “permanent impairment” in employing Tables 9.9.1a and 9.9.1b of the Guide.

The Compensation Act

6    The Compensation Act provides that Comcare is liable to pay compensation to an employee who suffers an injury (s 14) which results in permanent impairment (s 24).

7    The term “injury” is relevantly defined in part as follows in s 5A(1):

In this Act:

injury means:

(a)    a disease suffered by an employee; or

(b)    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; or

(c)    an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment,

but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

Section 5A(2) goes on to provide a non-exhaustive list of that action which constitutes “reasonable administrative action”.

8    The term “impairment” is defined in s 4 of the Compensation Act as follows:

“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.

9    Section 14 provides as follows:

Compensation for injuries

(1)    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.

(2)    Compensation is not payable in respect of an injury that is intentionally self-inflicted.

(3)    Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment

10    Section 24 provides in relevant part as follows:

Compensation for injuries resulting in permanent impairment

(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.

(7)    Subject to section 25, if:

(a)    the employee has a permanent impairment other than a hearing loss; and

(b)    Comcare determines that the degree of impairment is less than 10%;

an amount of compensation is not payable to the employee under this section.

The liability to pay compensation for an injury that “results in a permanent impairment”, it will be noted, flows from s 24(1); it is only the “degree of permanent impairment” that is determined “under the provisions of the approved Guide” (s 24(5)).

11    The “approved Guide” that is referred to in s 24(5) is further addressed in s 28. Section 28 provides in relevant part as follows:

Approved Guide

(1)    Comcare may, from time to time, prepare a written document, to be called the "Guide to the Assessment of the Degree of Permanent Impairment", setting out:

(a)    criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury shall be determined;

(b)    criteria by reference to which the degree of non-economic loss suffered by an employee as a result of an injury or impairment shall be determined; and

(c)    methods by which the degree of permanent impairment and the degree of non-economic loss, as determined under those criteria, shall be expressed as a percentage.

(2)    Comcare may, from time to time, by instrument in writing, vary or revoke the approved Guide.

(3)    A Guide prepared under subsection (1), and a variation or revocation under subsection (2) of such a Guide, must be approved by the Minister.

(3A)    A Guide prepared under subsection (1), and a variation or revocation under subsection (2) of such a Guide, is a legislative instrument made by the Minister on the day on which the Guide, or variation or revocation, is approved by the Minister.

(4)    Where Comcare, a licensee or the Administrative Appeals Tribunal is required to assess or re-assess, or review the assessment or re-assessment of, the degree of permanent impairment of an employee resulting from an injury, or the degree of non-economic loss suffered by an employee, the provisions of the approved Guide are binding on Comcare, the licensee or the Administrative Appeals Tribunal, as the case may be, in the carrying out of that assessment, re-assessment or review, and the assessment, re-assessment or review shall be made under the relevant provisions of the approved Guide.

12    When considering the present Guide by reference to s 28, Kerr, Farrell and Mortimer JJ in Comcare v Lilley [2013] FCAFC 121, (2013) 216 FCR 214 at 221 to 222 observed:

[32]    A number of matters which bear on the construction and operation of the Guide are set out in the section in Div 1 entitled “Principles of Assessment”. These matters flow from the fundamental change of focus brought about by the 1988 legislation, from the “table of maims” in the 1971 legislation to a “whole person impairment” approach. The “whole person impairment” approach was derived from the approach taken in the Veterans’ Entitlements Act 1986 (Cth) and also from the Guides to the Evaluation of Permanent Impairment, American Medical Association, Chicago, 1984 (the AMA Guides). Reliance on the AMA Guides is expressly acknowledged in s 5 of the Principles of Assessment, at p 12 of the Guide. Section 5 then states:

Division 1 assembles into groups, according to body system, detailed descriptions of impairments. The extent of each impairment is expressed as a percentage value of the whole, normal, healthy person.

Senior counsel for Comcare accepted that the word “extent” in this paragraph meant “degree”.

[33]    In describing the concept of “degree of impairment”, and after having referred to the definition of “impairment” in s 4 of the SRC Act, the Guide states (at p 11, in s 1 of Pt 1):

It relates to the health status of an individual and includes anatomical loss, anatomical abnormality, physiological abnormality, and psychological abnormality. The degree of impairment is assessed by reference to the impact of that loss on the normal efficient functioning of the whole person.

[34]    Section 28(1) of the SRC Act requires the Guide to set out both “criteria” by which the degree of permanent impairment is to be ascertained, and “methods” to express that degree as a percentage (so as to give effect to the requirement in s 24(6)). The approach adopted by the Guide differs depending on the part of the body system under consideration. The determination of the degree of impairment is generally prescribed to be undertaken by reference to tables in respect of particular kinds of impairments arising from injuries ...

The Guide and Tables 9.9.1 & 9.14

13    No challenge is made in the present proceeding to the validity of the Guide – or any part of it. It may thus be taken to be a document that has been lawfully prepared pursuant to s 28 of the Compensation Act and as a document that lawfully sets forth (inter alia) the “criteria by reference to which the degree of permanent impairment” is to be determined: s 28(1)(a).

14    But at least two questions of principle arise – namely the manner in which the Guide is to be construed in the context of the Compensation Act; and the manner in which the terms of the Guide are to be construed, given the acceptance that the Guide has been lawfully prepared.

15    As to the former question, it has been repeatedly accepted that the Guide cannot be construed so as to deny liability which the Compensation Act itself imposes. Thus, for example, in Broadhurst v Comcare [2010] FCA 1034, (2010) 189 FCR 561 at 565 Buchanan J observed:

[16]    … Resolution of any inconsistencies between the provisions of the Comcare Guide and the requirements of the SRC Act … has to be accomplished by recognising that the Comcare Guide cannot alter the requirements or operation of the SRC Act. It must, if it is possible to do so, be given a construction that is consistent with a proper construction of the SRC Act. If that is not possible it must, to the extent necessary, be treated as unauthorised.

[17]    It is important to emphasise, therefore, that the obligations on Comcare under s 24 of the SRC Act are independent of the functions given to it under s 28 of the SRC Act. Under s 24 Comcare is a primary decision maker with respect to the assessment of individual claims for compensation and is bound to apply the provisions of s 24 consistently with a proper view of the requirements of the SRC Act. If there is a conflict between the SRC Act and the provisions of the Comcare Guide, Comcare’s obligation as a decision maker is to give primacy to the requirements of the SRC Act, despite s 28(4). The same obligation applies to the AAT.

The decision of his Honour was affirmed on appeal: Comcare v Broadhurst [2011] FCAFC 39, (2011) 192 FCR 497. Similarly, in Whittaker v Comcare (1998) 86 FCR 532 at 545, Drummond, Cooper and Finkelstein JJ had previously observed that “insofar as [the Guide] contains the criteria by reference to which Comcare must assess the degree of [an] employee’s permanent impairment … [t]he Guide, which has this limited role, should not be allowed to limit the general legislative purpose”.

16    The Guide, it may thus readily be accepted, is to be construed in a way which conforms to the statutory requirements arising from the Compensation Act: Robson v Military Rehabilitation and Compensation Commission [2013] FCAFC 101 at [7], (2013) 214 FCR 1 at 3. Cowdroy, Buchanan and Katzmann JJ there relied upon the observations of Gummow A-CJ, Kirby, Callinan, Heydon and Crennan JJ in Canute v Comcare [2006] HCA 47, (2006) 226 CLR 535. In Canute their Honours observed:

[37]    … It is true that the Guide seeks to provide for the assessment of “the degree of permanent impairment of the employee” on a whole of person basis. But, as indicated earlier in these reasons, s 24(5) of the Act imposes a duty upon Comcare to determine “the degree of permanent impairment of the employee resulting from an injury”. It is the occurrence of “an injury” which both actuates and defines the ambit of Comcare’s duty pursuant to s 24 of the Act. Once that duty has been performed, sub-ss (3) and (4) of s 24 operate, in a self-executing way, to quantify the amount of compensation payable by Comcare. That amount is payable in satisfaction of Comcare’s liability which arises “in respect of the injury” under s 24(1). The Act only adopts the “whole person impairment” approach with respect to permanent impairments resulting from each “injury”. That “whole person” approach cannot properly be used to deny the applicability of s 24 to something which corresponds to the legislative definition of an “injury”. The statutory criterion of an “injury” is antecedent to the concept of “whole person” impairment, not the other way around.

17    As to the second question, comparatively little has been said as to the manner in which the words employed in the Guide are to be construed. No submission was advanced by the present parties opposing generally-accepted principles such that the words used are to be construed in a manner:

    according to their natural and ordinary meaning; and

    which promotes the objects and purposes of the Compensation Act as a whole, and of the Guide itself.

Thus, by way of example, in Lilley [2013] FCAFC 121 at [3], (2013) 216 FCR at 216, Kerr, Farrell and Mortimer JJ accepted the submission of the parties that the word “unable” as employed in Table 9.7 of the Guide was not to be construed as “meaning something less than ‘impossible’…”.

18    It is within this limited context that the following provisions of the Guide should be construed. The following provisions are those which assume relevance in the present proceeding.

19    The Introduction to Part I of the Guide, it may be noted, provides in section 12 as follows:

In the event that an employee’s impairment is of a kind that cannot be assessed in accordance with the provision of Part 1 of this guide, the assessment is to be made under the American Medical Association’s Guides to the Evaluation of Permanent Impairment 5th edition 2001.

20    The Introduction to Part II to the Guide provides in part as follows:

If the medical assessor considers that the impairment is not adequately assessed using one of Tables 9.9, 9.10, and 9.11, and the condition involves radiographically demonstrated joint instability, radiographically demonstrated arthritis or where the employee has had an arthroplasty, the medical assessor may consider the effect of the injury on upper extremity function instead and determine the WPI rating using Table 9.14. Table 9.14 cannot be used unless the condition involves radiographically demonstrated joint instability or arthritis or the employee has had an arthroplasty.

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.

21    Within Part II, section 9.9 addresses “Wrists” and provides in part as follows:

9.9    WRISTS

Table 9.9.1a and Table 9.9.1b (see pages 122-123) assess impairments to range of motion of the wrists, including ankylosis.

Loss of range of motion in each functional plane is measured from the neutral position. The range of motion is expressed as the two achievable limits of active motion in each direction through the normal range of motion. It is possible that the only motion that can be achieved is between two points on one side of the neutral position.

…

Table 9.9.1a is thereafter set forth and is headed “Wrist flexion/extension”; Table 9.9.1b is headed “Radial and ulnar deviation of wrist joint”. The percentages thereafter set forth in both Tables assume no present relevance. It is the heading to each Table which assumes importance.

22    Also within Part II, section 9.14 provides in part as follows:

9.14    UPPER EXTREMITY FUNCTION

Before using Table 9.14 the medical assessor should read the instructions (see Part II—Introduction, see page 110) preceding the specific joint impairment tables (Tables 9.8–9.11). Table 9.14 is used strictly in accordance with those instructions. In particular, Table 9.14 cannot be used where an assessment can be made under one or more Table 9.9, 9.10 or 9.11 and there is no radiologically demonstrated joint instability or arthritis or arthroplasty.

…

Table 9.14 should be used only to assess impairment from objectively identified orthopaedic or neurological conditions arising in, and affecting, the upper extremities.

The claims as made

23    Prior to the present claim for compensation filed with Comcare in April 2014, Comcare in September 2008 had accepted liability in respect to Ms Farrell’s claim for tenosynovitis of the right hand and wrist. In November 2011 Comcare further accepted liability for a claim of lateral epicondylitis and synovitis and tenosynovitis of the left hand and wrist.

24    Thereafter, Ms Farrell lodged further claims, being:

    a claim in April 2013 for permanent impairment and non-economic loss – that claim being disallowed by Comcare in May 2013 and affirmed in June 2013; and

    a claim in June 2013 when Ms Farrell sought the inclusion of several conditions of her earlier claim – that claim being accepted by Comcare in respect to the claim of medial epicondylitis (right) and lateral epicondylitis (right); but rejecting liability for cervicobrachial syndrome (bilateral) and carpal tunnel syndrome (bilateral). That decision of Comcare was affirmed in February 2014.

The claim now in issue arises out of the same claim as the one Ms Farrell lodged in April 2013, for permanent impairment and non-economic loss.

25    The claim for compensation for a “permanent impairment” filed with Comcare by Ms Farrell in April 2013 was completed in part as follows:

On behalf of Ms Farrell, it was said that this “permanent impairment” was the “result” of one or other of the “injuries” which had previously been accepted by Comcare.

26    The claim for compensation for this “impairment” was supported by Ms Farrell’s account of her symptoms to an Occupational Physician, Dr Leon Le Leu. Annexed to her claim for compensation was a report from Dr Le Leu dated 7 April 2013, in which Dr Le Leu addresses what he refers to as the “Subject injury” in part as follows:

She first noticed pain through the index and middle fingers of the right hand. She thought it would go away with rest but it did not. By the time she went to her general practitioner she had swelling going up the extensor aspect of the right forearm to the elbow. She could not get shirts on because of the swelling in the forearm (she still has trouble getting clothes to fit her arms since they seem to be swollen much of the time).

When addressing Ms Farrell’s “Current Status”, Dr Le Leu’s report states:

Current Status

Neck:

•    She has pain right now which is “like a pinched nerve” in the right posterolateral neck and the area where she thinks it is pinching swells.

•    She sometimes does not think she has a normal range of movement of the neck.

•    Coughing or sneezing does not alter the neck pain.

Shoulders:

•    The pain goes across to the shoulders through the trapezii and down into the interscapular area.

•    She thought she had a normal range of movement of the shoulders but a doctor got her to touch her fingers behind her back and she could not do it either way. She believes she used to be able to but many normal people cannot do that.

Upper Arms:

•    She also has pain between the shoulders and elbows which seems to go along the anterior junction between the triceps and biceps; strangely it seems to travel horizontally rather than vertically and the right side is worse than the left.

•    She feels she has lost upper arm muscle on both sides.

Elbows:

•    She has pain in the elbows, mainly the left medial epicondyle and the right lateral epicondyle. The areas can be painful and she applies the TENS machine or rubs in ice gel and it eases the pain.

•    She gets a sensation “like marbles under the skin” over the left lateral epicondylar area but not the right; by this she meant that, if it gets sore, she can “feel things like marbles in there”.

Forearms:

•    She still has paid going down over the extensor surfaces of both forearms.

Although noting difficulties with employing Table 9.14, Dr Le Leu went on to conclude that Ms Farrell had a “20% WPI under Table 9.14”. What findings of fact were made by the Tribunal in respect to this evidence was a matter for the Tribunal – provided it resolved in accordance with law the entitlement of Ms Farrell to compensation pursuant to s 24 of the Compensation Act.

27    In contrast to the report of Dr Le Leu stand the reports of Associate Professor Barnsley, a Consultant Rheumatologist. His first report was provided in August 2014. It addresses the extent to which Ms Farrell’s claimed impairments affected what he described as her “function”. Although there may be uncertainty as to the “compensable conditions” addressed in his report, the following question was answered by Associate Professor Barnsley as follows:

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, I believe that these can be assessed using the range of movement criteria:

With regard the right hand where she has synovitis and tenosynovitis, she has impairments at the wrist and thumb. The loss of movement at the little finger does not seem to be related to her compensable condition, and according to table 9.8.1d would not attract any whole person impairment in any event.

The thumb impairment from loss of MCP and IPJ movement from table 9.8.1a is 0%.

The thumb impairment from loss of adduction is 0% as she has less than 3 cm loss of adduction (table 9.8.1b). There is no loss of opposition and no loss of radial abduction.

The impairment stemming from the wrist is assessed using the range of movement tables

Her whole person permanent impairment is therefore 3%.

The “uncertainty” regarding the “conditions” to which this opinion of Associate Professor Barnsley is directed springs from the fact that earlier the same report identifies “conditions” other than the “permanent impairment” claimed by Ms Farrell, namely “left and right arms”.

A finding as to permanent impairment

28    Before any consideration can be given to assessing the “degree” of any “permanent impairment” pursuant to s 24(5) of the Compensation Act, there must at least be a determination by Comcare pursuant to s 24(1) and (2) that there is a “permanent impairment” which is the “result” of an injury.

29    It is respectfully concluded that the Tribunal has made no finding of fact as to the “permanent impairment” which is the subject of its later consideration. The Tribunal certainly has made no such express finding.

30    Counsel for Comcare sought to address this potential difficulty by both:

    emphasising the generality of the description given by Ms Farrell in her claim; and

    placing reliance upon para [24] of the Tribunal’s reasons for decision.

Further to the former matter, it should perhaps also be noted that the generality with which the “permanent injury” was identified in the claim was not the subject of any great further clarification in the report of Dr Le Leu which was annexed to that claim. Although that report did address the lack of functionality due to the claimed impairment, Dr Le Leu’s report also addressed a number of further medical issues.

31    But nothing turns upon the former matter. Counsel for Comcare quite properly accepted that a claim seeking compensation obviously need not be expressed with the same degree of particularity or formality of a pleading of a statement of claim in a superior Court. A notice of injury, it has been said, should be given “a broad, generous and practical interpretation … consistent with both the beneficial purposes of the Act and the likelihood that laypeople of differing levels of education, differing levels of medical advice and differing levels of legal advice … will be giving the notice”: Abrahams v Comcare [2006] FCA 1829 at [18], (2006) 93 ALD 147 at 152 per Madgwick J; Kennedy v Comcare [2014] FCA 82 at [53] per Katzmann J; Munswamy v Australian Postal Corporation [2015] FCA 678 at [22] per Jagot J. But nothing turns upon the manner in which the claim was expressed because the case before the Tribunal was conducted upon the basis that the claim to be resolved was indeed the generally expressed claim and that that claim was, at least in the eyes of the Tribunal, to be resolved by the application of the relevant Tables within the Guide. No claim was made, for example, that the generally expressed claim that had initially been made by Ms Farrell was later confined to a more narrowly confined claim limited to (for example) lack of movement in her wrists.

32    As to the latter of the two matters, Counsel for Comcare submitted that the Tribunal had made an express finding as to the “permanent incapacity” the subject of Ms Farrell’s claim in the following paragraph of the Tribunal’s reasons for decision, namely:

[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.

That submission is rejected.

33    Paragragh [24] certainly contains no express finding that Ms Farrell indeed suffered from a “permanent impairment”, being an “impairment” to her “left and right arms”. At best, the paragraph may implicitly contain a finding that the degree of impairment is to be assessed by reference to the claim as made. But even that construction of the reason as provided by the Tribunal is open to question given the absence of any finding being made by the Tribunal as to the lack of “functionality” to Ms Farrell’s “left and right arms”. Even though the reasons for decision of the Tribunal are to be construed in a practical and realistic manner (cf. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 to 272 per Brennan CJ, Toohey, McHugh and Gummow JJ), s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) does require the Tribunal to make “findings on material questions of fact”. On such an important and centrally relevant finding as the “impairment” which is the subject of subsequent assessment as to the degree of impairment, it is respectfully concluded that the terms of s 43(2B) are not satisfied by an uncertain process of implication.

34    The failure to make an express finding, it is respectfully considered, is only underlined when consideration is given to the balance of the Tribunal’s reasons. The balance of those reasons is an account of why Tables 9.9.1a and 9.9.1b dictate the failure of Ms Farrell’s claim. But to so reason is to do the very thing which Buchanan J counselled against in Broadhurst: to so reason gives “primacy” to the Guide, rather than the Compensation Act. As Senior Counsel for Ms Farrell submitted, the reasoning “inverts” the proper approach to the resolution of the claim. 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.

35    The reasons and findings made by the Tribunal in the present case 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. So construed, the Tribunal’s decision cannot stand.

Cannot be assessed – Tables 9.9.1a & 9.9.1b

36    Even if para [24] of the Tribunal’s reasons for decision were read in the manner advocated by Counsel for Comcare, the same conclusion is reached such that the Tribunal decision should nevertheless be set aside.

37    Even if the Tribunal did make a finding accepting the “permanent impairment” the subject of the claim being an impairment to the “left and right arms”, it is further respectfully concluded that the Tribunal erred in concluding that the degree of that impairment could be assessed by reference to Tables 9.9.1a and 9.9.1b.

38    In so concluding, the Tribunal said:

[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 ss 24 or 27 of the SRC Act.

39    Notwithstanding this reasoning of the Tribunal, it is respectfully concluded that Ms Farrell’s impairment “cannot be assessed in accordance” with the Tables, as that phrase is employed in the Guide. The claim for “permanent impairment” was to be assessed by reference to the AMA Guidelines. The degree of impairment could thus be assessed according to the terms of the Guide itself – but the relevant term being found in the introductory paragraphs to the Guide rather than Tables 9.9.1a and 9.9.1b.

40    The purpose of both the Compensation Act and the Guide is to ensure that the “degree” of a claimant’s “permanent impairment” is to be assessed by reference to informed medical opinion. To the extent that the “degree” of an “impairment” can be assessed by reference to prescribed “criteria”, s 28 contemplates that Comcare may assist in that process of assessment by “prepar[ing] a written document” setting forth those “criteria” for the “approval” of the Minister. The provisions of that “written document” as “approved” by the Minister thereafter become “binding” on both Comcare and the Administrative Appeals Tribunal. But there is not to be distilled from the Compensation Act any legislative sanction to employ such “criteria” as may be prescribed for the assessment of one particular “impairment” to the assessment of a different “impairment” to which the “criteria” are not directed and are (in all probability) ill-suited. It is not to be assumed, for example, that the Minister when “approving” the “criteria” prescribed for the assessment of one “impairment” also approved the same “criteria” being conscripted in the assessment of a different “impairment”. And the Guide itself, as approved by the Minister, expressly contemplates that there may be circumstances where the Tables set forth “cannot” be employed to provide any meaningful medical assessment as to a particular “impairment” not covered by those Tables.

41    Questions of degree may unquestionably arise – although the “criteria” prescribed in one Table may not be immediately apposite to a different but related “impairment”, the Table may nevertheless be employed to provide some meaningful medical assessment as to the claimed “impairment”. Where the line is to be drawn may well be a question of fact. And a question which may be informed by reference to the text of the Guide itself, the manner in which an “impairment” is assessed in a clinical context and by reference to informed medical opinion.

42    But, in the absence of further explanation, it is respectfully concluded 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”.

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.

CONCLUSIONS

47    It is concluded that the Tribunal has, with respect, failed:

    to make any finding of whether or not the “impairment” for which Ms Farrell has made a claim for compensation – namely the “impairment” to her “left and right arms” – does in fact constitute a “permanent impairment” within the meaning of and for the purposes of s 24(1); and/or

    to “determine the degree of permanent impairment … under the provisions of the approved Guide…”.

The reasons for decision of the Tribunal, with respect, seem to assume that Ms Farrell has in fact suffered some “permanent impairment” that has “result[ed]” from one or other of the “injuries” for which liability has been accepted and thereafter immediately proceed to determine the “degree” of that “impairment” employing Tables 9.9.1a and 9.9.1b. In doing so the Tribunal erred.

48    To some extent the failure to make such express findings of fact may assume little immediate relevance; on one view, it is the final step in assessing the “degree” of “permanent impairment” which is most crucial.

49    That which unquestionably assumes immediate relevance, however, is the failure of the Tribunal properly to apply the Guide to the facts of the present case. The “degree” of Ms Farrell’s “permanent impairment” of her “left and right arms” could not be assessed employing either Table 9.9.1a or Table 9.9.1b. There has been no “determination” of the “degree of permanent impairment … under the provisions of the approved Guide” and there has been no determination in accordance with law that the “degree of impairment is less than 10%” within the meaning of and for the purposes of s 24(7)(b) of the Compensation Act. In concluding to the contrary, the Tribunal erred.

50    Even if it were to be concluded that Ms Farrell’s claimed “permanent impairment” could be assessed employing Tables 9.9.1a or 9.9.1b, the result would be the same in the present case. Assuming those Tables could be employed, there has been a lack of explanation – by both the medical practitioners retained by Comcare and the Tribunal itself – of the manner in which those Tables could be so employed.

51    Although a submission was advanced on behalf of Comcare that any relief should be refused by reason of a lack of utility in remitting the matter to the Tribunal for reconsideration, that submission is rejected. The submission was founded (at least in part) upon an erroneous assertion that the Tribunal had preferred the evidence of Associate Professor Barnsley to that of Dr Le Leu. The Tribunal did observe that it preferred the Associate Professor’s evidence in respect to the claim for compensation for bilateral cervicobrachial syndrome (a matter not the subject of appeal) – but made no such observation in respect to the competing medical views relevant to those issues pursued on appeal. The appeal should be allowed and the matter remitted to the Tribunal for determination in accordance with law.

52    There was agreement between the parties that costs should follow the event.

THE ORDERS OF THE COURT ARE:

1.    The appeal is allowed.

2.    The matter is remitted to the Administrative Appeals Tribunal for reconsideration in accordance with law.

3.    The Respondent is to pay the costs of the appeal.

Associate:    

Dated:    30 November 2015