FEDERAL COURT OF AUSTRALIA

Singleton v Comcare [2019] FCA 2104

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The applicant to pay the costs of the respondent to be agreed or taxed.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    In 2013 the applicant suffered an injury to his right shoulder for which Comcare, the respondent, accepted liability and agreed to pay compensation. Later, following continued pain down the applicant’s arm and into his hand described as “chronic pain syndrome” (CPS), the applicant made a further claim. The respondent refused the application. The applicant appealed that decision to the Administrative Appeals Tribunal (Tribunal).

2    While there is a dispute between the parties as to the basis on which the applicant argued his case, suffice to say at this stage, the Tribunal rejected the applicant’s claim was an injury within s 24 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act), and found on that basis that the respondent was not liable to pay compensation.

3    Two issues arise on this appeal.

4    First, whether the Tribunal erred in rejecting the applicant’s claim that the CPS was an injury within s 24 of the SRC Act. The applicant submitted that the Tribunal misconstrued what amounted to an “injury”. Second, whether the applicant advanced an alternative argument in his claim, and if so, whether the Tribunal erred in concluding it lacked jurisdiction to consider that argument. The applicant submitted, that his argument was advanced with an alternative: namely, that the CPS was a secondary injury or, in the alternative, the chronic pain arose from the original injury causing further impairment to the applicant’s arm and hand. The applicant submitted that the Tribunal failed to deal with the second part of his case, thereby erring in law.

5    In so far as the grounds of appeal allege additional challenges, those grounds were abandoned.

6    For the reasons below the appeal is dismissed.

History

7    In 1991 the applicant, while serving in the Australian Army, suffered a compensable injury to his left shoulder. He was discharged from the Army in 1993.

8    On 16 September 2013, the applicant, while serving in the Australian Federal Police suffered an injury to his right shoulder. The applicant “fell backwards heavily onto his back causing instant pain to his upper back, both shoulders (particularly his right shoulder) and his neck” (the Incident). He was medically retired in April 2015. On 30 October 2013, the respondent accepted liability for the injury under s 14 of the SRC Act describing it as “unspecified injury to shoulder upper arm (right)”.

9    On 30 July 2015, the applicant submitted a claim for permanent impairment and non-economic loss in relation to his right shoulder describing the impairment as “chronic regional pain and limitation of movements of the affected shoulder”. The respondent refused this application at first instance, concluding that the condition had not stabilised and that it was under 10% whole person impairment (WPI). On review it concluded the injury was under 10% impairment. The applicant applied to the Tribunal and on 23 January 2017, the Tribunal made orders, by consent, that the applicant was entitled to payment under s 24 in respect of an unspecified injury to shoulder and arm (right) based upon 10% WPI.

10    On 22 August 2016, the applicant submitted a claim for compensation under s 14 for “complex regional pain syndrome—right shoulder”. On 8 November 2016, the respondent accepted liability to pay compensation in respect of CPS.

11    On 5 December 2016, the applicant submitted a claim for permanent impairment based on “right shoulder chronic regional pain syndrome (CRPS)”. Dr Gorman assessed the applicant in relation to the movement of his shoulder under 9.11 of the Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1) (the Guide). He did not assess him in relation to CPS regarding his pain condition as part of his right shoulder condition.

12    In a determination dated 9 May 2017, the respondent declined liability to pay further compensation for permanent impairment and non-economic loss for “chronic pain syndrome”, on the basis that the degree of impairment had not increased by 10% as required by s 25(4) of the SRC Act.

13    On 10 May 2017, the applicant applied for reconsideration of that decision. The applicant claimed the CPS was a separate accepted injury and he was entitled to have assessed any permanent impairment arising from that. He submitted that the permanent impairment claim he had applied for was not the claim assessed by the delegate. The applicant did not contest the impairment based on 9.11 of the Guide – which assesses range of movement, rather the request was directed to the CPS and “the use of the right shoulder and arm as a whole in terms of functioning”. The request referred to the assessment under 13.3.3 and later 9.13.3 of the Guide. A report by Dr Eaton outlining the loss of functioning was provided with the Request.

14    On 8 June 2017, the decision-maker affirmed the determination dated 9 May 2017, rejecting CRPS but noting that liability had been accepted for CPS, emphasising that “the chronic pain syndrome accepted by Comcare is not (CRPS)”.

15    The decision-maker concluded, inter alia, that (recited with any errors as they appeared in the original):

Whilst I am not satisfied that you have complex regional pain syndrome, I find that you have an impairment of reduced range of motion in your right shoulder, some of which is attributable to your chronic pain syndrome.

The most appropriate table to assess an impairment that is essentially a reduction in the range of motion of our right shoulder is Table 9.11.1a-c of the Guide.

I note that your loss of range of motion in your right shoulder has been measured under Table 9.11.1a-c at 10% WPI and you were and compensation for this degree of impairment.

Any reduction in the loss of your range of motion due to chronic pain syndrome is included in these measurements. So even if it were possible to isolate the loss of range of motion attributable only to your chronic pain syndrome it a reasonable assumption that any loss would likely be less than 10% WPI. I do not consider that you are entitled to a permanent impairment award for, ‘chronic pain syndrome’ as any impairment resulting from this condition has already been compensated for or would likely be less than the requisite 10% WPI.

16    On 22 June 2017, the applicant appealed to the Tribunal.

The Tribunal’s decision

17    The applicant's case was summarised as follows. The applicant had accepted injuries to his right arm being an impingement syndrome to the right shoulder accepted in 2013, and CPS in the right arm, accepted in November 2016. The CPS injury was not the same injury as the impingement in his right shoulder and does not manifest in the same impairments as the impingement injury. The applicant's claim for impairment caused by the CPS could succeed on either of two bases: (1) the shoulder injury caused the CPS (taken as a second injury) which caused the partial loss of use of the arm and hand; or (2) the shoulder injury caused the CPS (not elevated to the status of a secondary injury) which caused the partial loss of use of the arm and hand.

18    The respondent's case was summarised as follows. The applicant suffered an accepted injury to his shoulder giving rise to permanent impairment and there was no separate or other additional “injury” resulting in impairment and in accordance with Telstra Corporation v Hannaford [2006] FCAFC 87; (2006) 151 FCR 253 (Hannaford) the Tribunal was entitled to “undercut” the respondent's previous acceptance of liability to pay compensation under s 14 of the SRC Act for a separate CPS.

19    Having summarised and considered the respective cases, and relevant authorities the Tribunal concluded:

(1)    It could, in accordance with the principles in Hannaford, revisit whether liability was correctly accepted by the respondent for CPS under s 14 of the SRC Act.

(2)    It had to determine whether the applicant's CPS was an “injury” under the SRC Act and only if so satisfied should it go on to assess the degree of permanent impairment suffered.

(3)    On the basis of the medical evidence, the applicant's CPS was not an “injury” for the purposes of the SRC Act.

(4)    The respondent's acceptance of liability on 8 November 2016 to pay compensation under s 14 of the SRC Act in relation to CPS was in error.

(5)    While the applicant did not dispute that the assessment of compensation in relation to his right shoulder and arm injury was adequate, in any event, the adequacy of the compensation paid for that injury was not within the jurisdiction of the Tribunal to review.

(6)    It was satisfied that the respondent was not liable to pay compensation under ss 24 and 27 of the SRC Act in relation to CPS.

20    The Tribunal’s conclusion was in the following terms (footnotes omitted):

118. The evidence before the Tribunal, particularly the expert medical evidence, supports a finding that the Applicant’s ‘chronic pain syndrome’ is not an ‘injury’ for the purposes of the SRC Act.

119. Associate Professor McGill’s evidence was that there was no damage to the Applicant’s right upper limb in addition to the right shoulder injury. He said in his oral evidence:

… I don’t find evidence of a disorder in the right upper limb, separate from his right shoulder

120. Dr Gorman’s concurred that the chronic pain experienced by the Applicant was not the consequence of any anatomical or physical changes. In his opinion the Applicant’s pain is ‘ongoing nociception’ deriving from the Applicant’s injured right shoulder. The CPS is not a separate injury or disease in addition to the Applicant’s right shoulder injury:

I believe that he had a chronic pain in the shoulder which … had led to some other effects best described as chronic pain syndrome but they were not a new disease of its own

121. Dr Eaton’s evidence was that ‘chronic pain syndrome’ can be considered ‘a condition in its own right’ but he conceded that this is more likely to be in cases of individuals who, unlike the Applicant, ‘develop pain without really any history of any trauma or … any major sort of incident. Akin to developing a migraine or headaches or things like that.’

122. Accordingly, on the basis of the medical evidence before it, the Tribunal finds that the Applicant did not suffer an ‘injury’ as defined by s 5A(1) of the SRC Act. The evidence does not support a finding that the Applicant’s CPS is an injury simpliciter under s 5A(1)(b) or a disease under s 5A(1)(a) and s 5B(1).

123. It follows that the Respondent’s acceptance of liability on 8 November 2016 to pay compensation under s 14 of the SRC Act in relation to ‘chronic pain syndrome’ was in error.

Relevant legal principles

21    Section 24(1) of the SRC Act provides that “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”. “Injury” is given meaning by s 5A as “a disease suffered by an employee; or 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 an aggravation of a physical or mental injury…that arose out of, or in the course of, that employment”.

22    The interpretation of s 24 of the SRC Act has been the subject of High Court authority.

23    In Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535 (Canute) at [8] the High Court (Gummow ACJ, Kirby, Callinan, Heydon and Crennan JJ) observed that the concept of “an injury” is a term of “pivotal importance” in the structure of the SRC Act. Relevantly the Court observed (footnotes omitted):

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.

“Impairment”

11. Section 24(5) of the Act is expressed in terms of "the degree of permanent impairment of the employee". This expression is said by Comcare to reflect an approach of assessing impairment on a "whole person" basis. However the definition of "impairment" is not expressed in those terms. Section 4(1) provides:

"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;

...

permanent means likely to continue indefinitely".

The definition of "impairment" (and by extension the concept of "permanent impairment") is expressed in terms of effects on bodily parts, systems and functions. This disaggregated sense of the word is reinforced by the use of the indefinite expression "a permanent impairment" in s 24(1). Textually, the Act assumes that "an injury" may result in more than one "impairment".

…

14. However, 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.

…

25. The appellant sought review of the AAT decision in the Federal Court. Hill J found in the appellant's favour. On 1 April 2005, orders were made setting aside the decision and remitting the matter to the AAT for redetermination. Hill J held that the AAT had erred in failing to consider whether the chronic adjustment disorder was itself "an injury" for the purposes of the Act. His Honour remarked that:

"The fact that the two injuries were caused by a single event ... is not a relevant question under the Act. The Act is concerned with injuries, not incidents."

This is correct, having regard to the considerations discussed earlier in these reasons.

24    The focus on the concept of “an injury” is also apparent in the decision of Comcare v Farrell [2016] FCAFC 115; (2016) 250 FCR 432 (Farrell) where the Full Court (Jagot, Bromberg and Murphy JJ) stated:

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).

Ground 1: the Tribunal misconstrued the definition of “injury”

Submissions

25    The applicant commenced his oral submission by addressing the evidence before the Tribunal, as he submitted that it was relevant context to the legal argument he raised.

26    The applicant submitted that the Tribunal misunderstood its primary statutory task which was to make sufficient findings of facts so that it could determine whether the applicant had sustained an “injury” as that term has been defined by the courts. Relying on paragraph [102] of the Tribunal’s reasons, the applicant submitted that the respondent posed the wrong issue for the Tribunal by suggesting that the applicant did not suffer an injury characterised by pain, apparently because “he suffers pain entirely explicable upon the basis of, and only because, he suffered an injury to his right shoulder”. The applicant submitted that the Tribunal appeared to adopt this reasoning but submitted that “[i]n truth it is difficult to identify what the Tribunal’s true reasons were”.

27    The applicant submitted that as a result of misunderstanding the statutory task, the Tribunal did not make adequate factual findings about whether the evidence disclosed whether the applicant suffered a secondary injury. At the hearing, the applicant opined that there was a “tone of significant generality in the way the tribunal dealt with chronic pain syndrome”. The applicant complained that the Tribunal did not make findings about what his condition entailed, for example, there were no findings of the magnitude of the pain and whether its persistence was consistent with the initial injury; whether the CPS produced functional impairment in the use of the right arm; the effect of the pain on: the use of his arm; his hand; his grip; his fine motor skills; his ability to get his fingers working; nor when the pain which was caused by his shoulder injury might have been expected to have resolved or what the effect of it might have been expected to be. The applicant submitted that there were conflicts in the evidence which the Tribunal did not resolve.

28    The applicant also submitted that the Tribunal appeared to have relied upon the absence of identifiable damage and that physical change is not essential to an injury or a disease. He submitted that, referring to a number of authorities, chronic pain disorders, such as CPS, have been commonly accepted by courts and tribunals as a compensable injury notwithstanding the arguments by some medical practitioners that there is no physical basis for the diagnosis.

29    The applicant submitted that if the evidence before the Tribunal is properly understood, it supports his submission that he sustained a secondary injury. The applicant contended that this submission did not invite this Court to correct or make factual findings, or to conduct a merits review, but rather to the extent that the evidence is before the Court, it “is relevant to construing the Tribunal’s reasons”, relying on Howard v Comcare [2019] FCA 1031 (Howard v Comcare) at [20]. It was submitted that it tended to further expose the Tribunal’s misunderstanding of the obligation to determine if the applicant sustained an injury.

30    On the other hand, the respondent submitted that the applicant’s primary contention before the Tribunal was that CPS was a second injury that entitled him to additional compensation pursuant to s 24 of the SRC Act which required him to satisfy the Tribunal his CPS was a separate or additional “resultant effect” of the Incident rather than part and parcel of the “unspecified injury to shoulder and arm (right)” for which he had already been compensated.

31    The respondent contended that the Tribunal's reasons demonstrate it found the symptoms of CPS were part of a single “resultant effect” the Incident had upon the applicant's body, in particular his right shoulder, rather than an additional separate or discrete “resultant effect” of the Incident and therefore, concluded it was not a separate injury or disease in addition to the injury for which compensation had already been paid. The respondent submitted the Tribunal correctly applied the principles in Canute and Farrell, and therefore, “had asked itself the right question”.

32    The respondent submitted that a single “injury” can cause pain in different parts of the body or a variety of different symptoms. The respondent argued that the difference between a single “injury” with a multitude of different symptoms and an injury that consequently leads to a separate and distinct second compensable “injury” is that in the former the symptoms suffered are part of a single “resultant effect” of an incident or ailment whereas in the latter they are not. The respondent submitted that the Tribunal's reasons demonstrated it appreciated this distinction and did not determine the matter solely on the basis that the pain the applicant was suffering in his arm was entirely explicable upon the basis of, and only because, he suffered an injury to his right shoulder.

33    The respondent submitted that the Tribunal was not required to make findings about the applicant's condition as suggested by the applicant. The respondent contended that the absence of evidence of damage to the applicant's arm in addition to the claimed injury could not have been determinative of whether a second injury had occurred but was something the Tribunal was entitled to have regard to in determining whether there had been one or two injuries.

34    The respondent submitted that while the applicant points to some evidence which was capable of supporting a finding his shoulder injury and CPS were not part of a single “resultant effect” of the Incident and therefore constitute separate injuries, he does not contend there was an absence of probative evidence upon which the finding of the Tribunal, fatal to his case, could have been made. The respondent submitted that the presence of some evidence suggesting a different finding which could, or even should, have been made does not amount to an error of law, and pointed to the following cases as examples: Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54 (Waterford) at 77 per Mason, Wilson, Brennan, Deane and Dawson JJ; Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 (Rajalingam) at [146] per Sackville, North and Kenny JJ.

35    The respondent cautioned against this Court slipping from legitimate review of the Tribunal's decision on a question of law into reconsideration of the merits of its decision and also to avoid construing the Tribunal’s reasons “minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (Wu Shan Liang) at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ citing the Full Court (Neaves, French and Cooper JJ) in Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280 at 287.

Consideration

36    The applicant bears the onus of demonstrating an error of law on the part of the Tribunal: Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 at [192]-[202] per Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ. Moreover, as the respondent submitted, the Tribunal’s reasons “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Wu Shan Liang at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ, and the reasons must be read fairly and as a whole: Wu Shan Liang at 291 per Kirby J.

37    The legal principles relevant to determining this matter were not in dispute in the Tribunal, and no challenge is made to the accuracy of the Tribunal’s recitation of those relevant principles.

38    Against that background, the respondent’s submissions should be accepted.

39    First, while the applicant submitted that the evidence before the Tribunal was relevant context, that evidence does not support his submission that the Tribunal misconstrued the meaning of “injury”. Rather, the Tribunal’s conclusion is based on an acceptance of certain evidence which was before it, and not a misconstruction of the concept of “injury”. This case is to be distinguished from Howard v Comcare, where the Tribunal found that CPS was secondary to an earlier injury. As Perry J concluded, based on that finding, the Tribunal had misconstrued the meaning of an “injury” because secondary injuries are injuries for the purposes of the SRC Act. The Tribunal in this case made no such finding. To the contrary, the Tribunal concluded the applicant’s CPS was not a separate injury from the right shoulder injury.

40    While the applicant relied on certain evidence which, he submitted, was capable of supporting a finding that the applicant’s shoulder injury and CPS was not part of a single resultant effect, the applicant did not go so far as to submit that there was no evidence to support the finding made by the Tribunal. I note also that the evidence referred to by the applicant is considered by him in isolation of the remainder of the witness’ evidence. In any event, that there may have been such other evidence does not amount to an error of law: Waterford at 77, Rajalingam at [146]. Moreover, that evidence does not establish any misconstruction of “injury” by the Tribunal.

41    Second, contrary to the applicant’s submission, the Tribunal did not address the wrong question. The submission, which was based on the assertion that the Tribunal acted upon an incorrect description of its task given by the respondent, is not borne out on a proper reading of its reasons. While the applicant submitted that the Tribunal appeared to adopt the approach that if the CPS was related to the shoulder injury it necessarily was not an injury in itself, the applicant did not identify any passage in the reasons in support of that submission. To the contrary, the Tribunal correctly identified the relevant principles and against that background, addressed the question whether the applicant’s CPS was an injury within the meaning of the SRC Act. This recitation of principles included the passage from Canute which makes clear there is no basis for distinguishing between primary and secondary injuries. Moreover, the respondent’s submission which underpins this aspect of the applicant’s argument, (that the applicant did not suffer an injury characterised by pain but rather he suffered pain because he has an injury to the right shoulder), was a factual submission.

42    Third, the applicant’s case required him to satisfy the Tribunal his CPS was a separate or additional injury (“resultant effect”) of the Incident rather than part of the injury he had already been compensated for (“unspecified injury to shoulder and arm (right)”). In support of that case the applicant repeatedly contended that it was not disputed the applicant suffers CPS. However that submission does not advance his case, rather it tends to distract from the issues to be decided. Nor does it assist the applicant’s argument to repeatedly refer to CPS being a secondary injury. That was not the Tribunal’s finding.

43    Fourth, as the respondent correctly submitted, the difference between a single “injury” with different symptoms and an “injury” that consequently leads to a separate and distinct second compensable “injury” is that in the former, the symptoms suffered are part of a single “resultant effect” of an incident or ailment whereas in the latter they are not (as would be the case, for example, where the pain from a herniated disc consequently leads to the development of a psychological condition). The evidence accepted by the Tribunal is that in this case it was the former; that the CPS is not a separate injury or disease from the right shoulder, but instead is part of the symptoms suffered as a result of a single “injury”. The Tribunal acknowledged the evidence of Dr Eaton who considered that the CPS could be a condition in its own right, but, as the Tribunal noted, that is more likely in cases, unlike the applicant, where there is no history of trauma. Dr Eaton’s evidence on this topic was qualified. The factual finding was open to the Tribunal. This was a question of fact, quintessentially a matter for the Tribunal.

44    Fifth, contrary to the applicant’s submission, the Tribunal did not err in considering and relying on the evidence of Dr Gorman as to the absence of any anatomical or physical changes. That evidence was given in answer to an agreed question of the experts. As the respondent contended, the absence of such evidence could not be decisive, but that evidence was nonetheless relevant. Indeed, at the Tribunal, the applicant did not suggest otherwise. The experts agreed that CPS is an identifiable collection or concatenation of symptoms, as opposed to an anatomical abnormality.

45    In this regard, the applicant’s submission that CPS has previously been accepted as an injury, citing cases from other contexts to support that proposition, does not advance his submission. The issue is not whether CPS can be an injury, the issue is whether it has been established, on the evidence, that in this case it is a separate injury within the meaning of the SRC Act.

46    I note also that the Tribunal’s references to the evidence in its reasons under the heading “consideration”, must be read in the context of the broader discussion and summary of that relevant evidence which appears earlier in its reasons.

47    Finally, while the Tribunal could have made further factual findings, its failure to resolve what the applicant identified as factual issues, does not reflect that the Tribunal has misconstrued its task.

48    The Tribunal, having considered the evidence and relevant authorities before it, concluded that the CPS was not a separate or discrete “resultant effect”. The Tribunal did not misunderstand its statutory task, and instead, made a number of factual findings on the way to reaching this ultimate conclusion. No error is established.

Ground 2: failure to address the alternate case

Submissions

49    The applicant submitted that even if his CPS is not a secondary injury to his shoulder injury, the Tribunal failed to deal with the argument that it has given rise to a further permanent impairment beyond the initial restriction to the range of movement of the shoulder which was assessed under 9.11 of the Guide. The applicant submitted that the failure to address a significant part of the case is an error of law.

50    The applicant noted that a claim made under s 24 is in relation to “permanent impairment” arising out of an injury, and if a further permanent impairment arises from the injury, a further claim can be made. The applicant drew attention to s 25(4), which he contended expressly contemplates a payment for an increase in the degree of permanent impairment if that increase exceeds 10%. The applicant pointed to the fact that the respondent submitted that the CPS was not a separate injury but that it arose out of the initial shoulder injury.

51    The applicant submitted that he made this alternate claim in his Request for Reconsideration of his application for permanent impairment based on CPS. In that request, the applicant contended that he sought compensation beyond the restriction on shoulder movement which had been assessed under 9.11 of the Guide and paid 10%, and that claim was put to the Tribunal. The applicant referred to the claim form and other documentation which he submitted supported this proposition. The applicant submitted that the Tribunal wrongly concluded that there was no dispute about the assessment in relation to the applicant’s arm, and there was evidence before the Tribunal upon which it could have acted.

52    The applicant submitted that if the CPS was not a secondary injury, the Tribunal made no findings about whether he had suffered further permanent impairment as a result of his original shoulder injury, and on this basis it failed to exercise its jurisdiction.

53    On the other hand, the respondent submitted that the Tribunal did not address the alternative case because it correctly concluded that it did not have jurisdiction to do so.

54    The respondent outlined, by reference to the SRC Act (and the evidence) the Tribunal’s jurisdiction in this case, and noted that the jurisdiction arose as a result of the “three tiered decision-making process” in the SRC Act. The respondent drew attention to the key provisions in relation to this decision-making process, noting that: initial determinations are made under s 61 of the SRC Act; provision for reconsideration of that determination is made pursuant to s 62; and any reconsideration is a reviewable decision: s 60. The respondent noted that the Tribunal is given jurisdiction to review a reviewable decision by s 64, and pointed to the following cases in support of this proposition: Lees v Comcare [1999] FCA 753; (1999) 56 ALD 84 at [32] per Wilcox, Branson and Tamberlin JJ; Comcare v Lofts [2013] FCA 1197; (2013) 217 FCR 220 (Lofts) at [17]-[18] per Mortimer J. The respondent submitted that the test for what the Tribunal had jurisdiction to consider was outlined succinctly in Lofts at [57].

55    Accordingly, on the respondent’s submission, for the Tribunal to have had jurisdiction to consider the applicant's alternate argument the respondent’s reviewable decision must have included consideration of whether the applicant's right shoulder injury caused the applicant's CPS (not elevated to the status of a secondary injury) which caused the partial loss of use of the arm and hand. The respondent submitted it did not.

56    The respondent detailed what it submitted is the chronology of this matter:

(1)    There had been a claim and decision making process involving compensation for the permanent impairment arising as a result of the applicant's “unspecified injury to shoulder upper arm (right)”. On 30 July 2015, the applicant made a claim for permanent impairment and non­economic loss under ss 24 and 27 of the SRC Act in relation to the right shoulder condition. Ultimately on 27 January 2017, the Tribunal found that, with respect to the applicant's right shoulder injury, he was entitled to compensation for 10% WPI under s 24 of the SRC Act, with corresponding compensation paid under s 27 of the SRC Act for non-economic loss.

(2)    On 5 December 2016, the applicant made a further and separate claim for compensation for permanent impairment arising as a result of his alleged CRPS. In the claim form, under the heading “what permanent injury/impairment(s) of the body do you want to claim for?” the response was “chronic regional pain syndrome (CRPS)” and the claim form focused on the degree of impairment arising in relation to the claimed CRPS.

(3)    On 9 May 2017, the respondent denied liability for this further claim for compensation for permanent impairment.

(4)    In his request for reconsideration of that decision dated 10 May 2017, the applicant emphasised he did not take issue with the respondent's previous determination accepting 10% impairment in relation to the right shoulder injury. He submitted that “CPS is a separate accepted injury” and that he “is entitled to have assessed any permanent impairment arising from the accepted CPS injury”.

(5)    On 8 June 2017, the respondent affirmed the determination of 9 May 2017. The Review Officer only addressed the issue of whether the applicant's then accepted chronic pain “injury” resulted in a compensable permanent impairment, concluding it did not. The previous decision making process in relation to the right shoulder injury was only noted as a historical fact and was neither challenged by the applicant nor in any way reconsidered by the respondent.

57    The respondent submitted that this chronology is in the context where up until the Tribunal, the respondent had accepted liability to compensate the applicant for two separate injuries, (1) “unspecified injury to shoulder upper arm (right)” and (2) “complex regional pain syndrome”.

58    The respondent submitted in light of those matters the reviewable decision before the Tribunal did not, either expressly or impliedly, consider whether the applicant was entitled to compensation for a further impairment arising as a result of the right shoulder/upper arm injury. Therefore, on the respondent’s submission, the Tribunal did not have jurisdiction to consider the applicant's alternate argument that he was entitled to further compensation on the basis of an additional impairment arising from this injury. On this basis, the respondent submitted that the Tribunal’s conclusion at [125] was therefore correct and did not involve any error of law.

Consideration

59    As the respondent submitted, the test for determining what the Tribunal had jurisdiction to consider, is succinctly summarised by Mortimer J in Lofts at [57] as follows:

What the Court is required to identify is the reviewable decision that was made by Comcare under s 62 of the SRC Act. That identification will delineate the jurisdiction of the Tribunal. If the reviewable decision included, expressly or impliedly, consideration of Comcare's liability for compensation by way of medical expenses in the terms of s 16 of the SRC Act, as well as a decision on liability under s 14, then the Tribunal was also authorised to consider and determine that issue.

60    The focus is on the reviewable decision, which is the decision of 8 June 2017.

61    The applicant relied on Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33; (2009) 174 FCR 574 and Telstra Corporation Ltd v Kotevski [2013] FCA 27; (2013) 209 FCR 558 in support of the submission that his matter was put on an alternative basis, and that as the reviewable decision did not address that basis, it can implicitly be taken to have dismissed it. However, that proposition does not assist the applicant with the factual issue underlying this ground: whether the alternative basis of the claim now contended for was before the decision-maker conducting the review.

62    The alternate case, while it might have been articulated before the Tribunal, was not a matter before the reviewing decision-maker. The documents relied on by the applicant, properly considered, do not support an alternative case.

63    As to those documents the following observations can be made.

64    First, none of the documents refer to “an alternative case” or put a basis “in the alternative”, and so there is nothing explicit in the documents relied on. For example, in relation to the claim form, as the respondent noted, under the heading “what permanent injury/impairment(s) of the body do you want to claim for?” the response was “chronic regional pain syndrome (CRPS)” and the claim form focused on the degree of impairment arising in relation to the claimed CRPS. The applicant does not point to any matter on the form in support of the alternative claim.

65    Second, the applicant relied on the content of the letter he received in relation to the decision of 9 May 2017 where the respondent rejected his claim for liability. In particular, the applicant relied on a reference to an aspect of the evidence of Dr Gorman, which stated “[l]iabilty was accepted in November 2016 for chronic pain syndrome related to his right shoulder condition. I do not believe this is a different condition—the right shoulder led to chronic pain” which was one piece of evidence relied upon by the delegate in concluding that “I find Mr Singleton is not entitled to further compensation for permanent impairment and non-economic loss, on the basis that the degree of the impairment has not increased by 10% as required by section 25(4) of the SRC Act”.

66    However, the applicant’s request for reconsideration of that decision makes it plain that was not the claim that he made. In a letter to the respondent dated 10 May 2017, the applicant outlined the basis of his requested reconsideration. The request stated “[t]he CPS is a separate accepted injury even if it is secondary to the prior physical shoulder injury. Mr Singleton is entitled to have assessed any permanent impairment arising from the accepted CPS injury”. And later, “[t]his is a permanent impairment claim that Mr Singleton applied for but it is NOT the claim [that] was assessed by the Delegate”. That is, the applicant submitted that the delegate had not considered his claim, and rather, what was considered by the delegate was not his claim. The applicant did not submit that what was considered by the delegate was an alternate claim that he had made and that the primary claim had not been considered. Read as whole, the letter disavows the approach taken by the delegate and that it related to his claim. Indeed, the whole tenor of the letter is that the delegate approached the consideration on the wrong basis, namely that the applicant might be entitled to compensation under s 25(4) based on increased impairment. That it was contended was not the basis of his case. That is correct.

67    The applicant’s submission as to the penultimate paragraph in that letter, appears to be the highpoint of his argument. That paragraph is as follows:

Counterfactually, even if there were not separate injuries but only the original physical injury to the shoulder, the doctor’s assessment would still be based on a false legal premise. As you are well aware, section 24 encompasses ‘impairments’ and not the mere existence of injury. The one injury can result in more than one impairment. Thus, even if, counterfactually, this matter was approached on the basis of a single shoulder injury, it would still be the case that Mr Singleton should be entitled to have both physical impairments assessed on Table 9.11 AND the CPS impairment assessed under Table 9.13.3.

68    The applicant submitted that passage described “the two arms of the argument: that it was an injury entitled to be assessed in its own right which would mean it would receive a straight-up assessment under the guide; or, if it’s not an injury entitled to be assessed in its own right, it is a further impairment resulting from the original injury, and, no doubt, it would be assessed under one of those combined impairment tables within the Comcare guide”. It was submitted to be the “plain implication” of the passage, that there should be assessment for impairment even if it was regarded as one injury. However, in the context of the letter, that is not clear from that passage. Rather, the passage is premised on the basis that it was contrary to the facts, and that even on that basis, the delegate’s decision is still based on a false legal premise. A statement that even if it was approached that way the applicant would be entitled to have the impairment assessed, is not a claim to approach it in that way.

69    This letter is from the applicant’s legal representatives. If the applicant’s claim was put on alternative bases it would be expected to say so. If it was intended that the claim be on the alternative basis, the drafting of the various documentation did not follow that intention through. That position was not put until the argument in the Tribunal. However, that the applicant there submitted that his case was put on an alternative basis does not alter the content of the claim that had been made, and the nature of the reviewable decision. Although I note that the applicant in his written submission to the Tribunal made clear that he was not reagitating the claim for the accepted right shoulder injury and it was not a claim for a subsequent increased impairment under s 25(4).

70    Third, the applicant in reply called in aid of his submission a passage by Beaumont J in Australian Telecommunications Commission v Novak (1985) 86 ALR 457 that “it became the duty of the Commissioner to make such determinations from time to time as were necessary to confer upon the respondent the particular benefits to which she was, on the facts as they may be from time to time, entitled” citing, Wilcox J in Commonwealth of Australia v Ford [1986] FCA 94; (1986) 65 ALR 323 at 327. From that the applicant submitted that if it is apparent that somebody may have an entitlement, the respondent is supposed to look at it, without fine distinctions being made based upon the wording of the application. It was submitted it was sufficient to draw the issue to the attention of the respondent, sufficiently so it can look at it.

71    However, that does not address the current issue and therefore does not assist the applicant. The Tribunal only has jurisdiction in relation to a reviewable decision that was made by the respondent under s 62 of the SRC Act. As made clear in Lofts, it is the identification of that reviewable decision which will delineate the jurisdiction of the Tribunal.

72    Finally, contrary to the applicant’s contention, the respondent’s submission was not that if an applicant advanced two matters, but the respondent only dealt with one, there would be no jurisdiction for the Tribunal to hear the two matters. Rather, the respondent’s submission, properly considered, was that the claim had not been put on alternative bases and therefore, there were not two bases before the reviewing decision maker. That submission is correct.

73    It follows that the Tribunal’s conclusion that it did not have jurisdiction to consider the applicant’s alternate basis of the claim was correct, and no error of law has been established.

74    I note however, as the respondent submitted, the applicant can submit a claim for permanent impairment for a second impairment resulting from the right shoulder injury, which is an injury that has been accepted by the respondent.

Conclusion

75    The applicant has not established either of the grounds of appeal and accordingly the appeal is dismissed.

Associate:

Dated:    13 December 2019