co 2... ec teen ee yt on a CATCHWORDS ADMINISTRATIVE LAW - COMPENSATION - appeal from decision of Administrative Appeals Tribunal ~- whether open to Tribunal to conclude that employee with back injury was not "partially incapacitated for work" ~ meaning of "incapacity for work" ADMINISTRATIVE APPEALS TRIBUNAL- failure by Tribunal to identify correct decision under review - substance of true issues nonetheless considered by Tribunal - good practice for Tribunal to include material parts of determination under review and legislation in reasons for decision Administrative Appeals Tribunal Act 1975 (Cth) s.44 Compensation (Commonwealth Government Employees) Act 1971 (Cth) - s.46 Arnotts Snack Products Pty Ltd v Yacob (1985) 57 ALR 229 BETWEEN : PATRICIA ANITA GERSBACH Appellant AND 2 AUSTRALIAN TELECOMMUNICATIONS COMMISSION Respondent No. G.187 of 1985 CORAM : Davies J 30 June 1986 Sydney wee oe eat Steam tree te EL © rir Sted JUDGE MAXING ORDER =a oa / ) a . newt cipore cr aegrec Ost . m~ 4197 as -ace DOTLDE WALES DISTRICT REST } NO. G.137 st 1935 ; aewogye srytessy , SS ah meVer ios GN AP =a GT AIT VT ors ATT IT FZ Tara GN APPEAL FRoM THE ASMINIS SRA — APPEALS TRIBUNAL o ANE : AUSTRALIAN TED ECOMMUNICATIONS COMMISSION Respondent MINUTE OF ORDER Davies J ae DATE OF CROER 3 30 June 1986 AHERE MADE 3 Sydney THE COURT ORDERS THAT oe 1. The appeal be ailowed with costs. , peal , , 2. The decision under ¥ewrrew be set aside and the matter remitted to the Acministrative Appeals Tribunal to De reheard and determined according to law. pa a a io " Hy) wa lement and entry of orders is dealt with in Order 36 rai Court Rules. --- -4e - =e a -- Petts ee a ae a a are cS. "er Pe FEDERAL COURD OF Ag wo aH, FEDERAL COURD OF AUSTRALIA eemes Nae pes ceo es Smee OSes aww QUVae ABI se Deke Mee ote faba lamed tal —2-4 pepe PEP ye Teey DiVisSi0N ON APPEAL FROM THE ADMUNISTRATIVE APPEALS TRIBUNAL EC WEEN ONO 3: PATRICIA AND 3 AUSTRALIAN TELOCOMMUNICAR TONS COMMISSiON Respondent t REASONS FCR JUDGMENT CORAM Davies J 30 June 1986 This is an appeal from a decision of the Administrative Appeals Tribunal given on 6 June 1985. The decision in substance affirmed a determination of a deisgate of the Commissioner for Empioyees' Compensation, though it will be necessary for me to make some comment as to the form of the decision. res Lat ae st sf amr BR tit itr ao. lane apyellant, "irs FLA. Justice, was Zorn on 17 GE Go the date of the decision of the Tribunal. in about 1973, she jceincd cyplst and continued in 'thet employment for e:ght anc a nal yeacs. For most of the veriocé of her employmenc, she cacried cut other C€ucvies in addition to typing. On 4 Septerser 1981, Miss Gecshbacn suffered injury to hey back while sne was stancing on a nacdes reading meters. The nature of the injury i5 not entirely Cciear, though one of the treating doctors spoxe oF a lumbar disc iesion. The Tribunal merely Found, "34. Whether or not the incident on a iacder on September 1981 caused the applicant's 'lumbar Ci lesion', org merely aggravated a pre-eExXistin conéition (compare Dr. Meacnhin''s view with th Dr. Envlich), 10 iS ciear on the evicence & = ; Gy the Tribunal that, contrary to the view personnel officer, Parkes (=.A. Ren applicant's position was 'cover loaded', ana Tt in combination, the tasxs associated with performing the maii and fi i with her position as a typ2 applicant to develop a dDack concgition from which she was suitfering on the date of her resignation (21 April 1982) and from which she is still suffering. ...". On 21 April 1982, Miss Gersbach resigned from ner employment. The Tribunal explained this resignation as rolicows : "20. The applicant returned to work, but found that she was in extreme pain, particularly in ner mail and filing duties. She said that she was Torced to sell her nouse, because she could no longer manage the gardening. She received some relier for periods of up to 3 weeks, when Dre. Meacnin gave her injections at the base of tne spine. Finally, on 21 April 1982, she resigned from her employment. In pacticular, she found that she could no longér carry on the filing and nail duties. She continued with the same kind of work right up until the day she resigned. se eee - oO several periods of s1cA bs j TILaT ia pu. "S 23. The appliicanc agre gios oe ceesignation in Avril 1382, she was abie to ca wut nec cyping cucres, alzert with ditliculty. secausé she was never suc of pain the wholes tire'. The axplicanc agceed that she accented tne duties that she was given, and was edurvoca. on wnethes she had ever asxed Foc lignt Guties. she said that she spoke to Miss Renshaw about obtaining lignt duties, and that sne unders teoc that the coctors' csporcvs would cover tat. She agreed that she haa mace no forrwal application for lignt duties. Basically, che applicant's positicn was that the veopie in personne. cctid see tne pain chat sne was in, and she assumec that it was appropriate to leave it to them to attend to suca matters as allocation of Light duties." November 1981. This was given further eiltect sy ermination of 13 April 1984, which gave compensation i a o Paragraph 1 of the detercminaticn of i3 April 1334 cease : "(1) In accordance with the provisions of section 45(2A) of the said Act, she is entitled to the payment of compensation at the weekly cate egquivaient to full sick pay, including any relevant salary allowances, in. accordance with prescrided conditions relating to the payments of such allowances Guring periods of sick leave from 30.11.81 to 19.11.81, i hour on 7.12.81, 50 minutes on 9.12.81, 5.2.82 one day, 15.2.82 to 21.2.82, 3 hours 51 minutes on 3.3.82." On 10 February 1984, a delegate of che Commissioner Employees' Compensation had made the following determination "1. On the evidence before me, including specialist medical opinion, i find that on and from 22 Aprii 1982 the personal injury sustained by the said Patricia Anita Gersbach on 4 September 1981 has not prevented her Icom earning in some suitable employment of business a weekiy amount wnich is not less than her average weekly earnings before that injury, calculated in accordance with section 25 of the said Act. Liability fer the injury was accepted Dy a Ceterminaticn ve and for medica Treacmer gate of the Commissioner foc Employees' Compensaticn cated me a re ee ne ane We tee ee ee 7 7 8 4 ee a er eee Pee 2. 2Gn EHPORS, in feucSuanc covis of che Corpensation (Commo cvern Zuployvees) Act i37i, and ZS cetersninations eviousliy made QtTTEL = meres sere TAAL Le HSCS an Pelec c Commissisn is not i le to vay conpe cocaance with sec nm 45 Ge SséCTi said Act on ana fr 22 Ap¢cii fh ri) a ty ty = k 4 1] fu cr (2 Q ra tt ci & @ in cl i fi ct s! ry Ww CcA o ty ty i] ray HB 47] a u c cl w cl So el au "The decision of the Tribunal is cto c termination under paragraph (i) of the de rev , insofar as it relates to the pericc on and From 22 the dat rt Aprii 1982 unvil the decision. One of the grounds of appeal is that the Tribunai made no decision as to the determinacio pa] a =r oi6 Februacy 1984. I agree to the Getercminacvion of 13 rs) easons for decision refe "s % re a is) fu cl cl 5! a 's April 1984, though the terms of the determination were not set out therein, and that the decision appears to nave been Grawm with that determination in mind. The Tribunal appears to have assumed that paragraph (1) of the determination of 13 Apri i984 impliedly refused compensation with respect to the period on and from 22 April 1982, a pesiod which that paragraph did not mention. It was, however, the determination or 10 February 1984 which achieved that and, having regard to the substance of the Tribunal's decision, the Tribunal ought to have affirmed the whole of that determination. This is a matter of technicality which couid be corrected by an ordec of the Court if that were the only issue. It is not a matter of substance. However, I take this opportunity to pee oe aeee yee a ed wip ewe we te oe LE a td fu cd ef oO is ta fue [a] <5 is We] Q rs] cl y w 'Y Ns o n be un Lt) ae uw w c oO ag, foe ig) Hy cl by oO i?) tu ct fat) ny of BR i] M cl ra Q Ps] ty i) Fe it) m wu It is likewise good sractice to set out the matésia. parts of the legisiation wnich is selevant to che cecision in the gaview. In the present case, the relevant provisions were : "46.(i) Where an injury to an employee resuicts in wne employee being pactiaily incapacitated 'for work, the succeeding provisions of this section have effect. (2) Subzect cto this section, compensation s payable to the employee, during the period ci che incapacity, Of an amount pers weex equai to - (a) the lesser of the following amounts, namely (i) $90 or such higher amount as is prescribed; of (ii) the amount (2f any) by which vche average weekly earnings or tne employee before the injury exceeds trom time to time the amount per week that he is able to earn in some sultable employment or business; or Those provisions were not set out in the reasons for decision of the Tribunal and perhaps its failure to identify correctly the decision under review and its failure to specify the legislation being applied led to the ground of appeal "That the Tribunal failed to identify the true issues". In my opinion, this ground has not been established, for in —p—— ocneaeiamatiieemnns mame "an wee eh ie ee - were Gi . tae Tribunal's céasons For cecisionm tnere 15 SED Gut, in che Tribunal 3s own woereés, thé substance of the mMaccers that 5.46 Séequrrces co be considered. Howevez, I should soint out enazt it 15 Cesirable that, sariy in the proceedings Detcre it in & macver Such as this, the Tribunal srovlc ensure-chat che parcies have ty cdentiztiecé the determination that 25 under sceview and the Legislative provisions that are -s¢eievant to ic. Much of che evicence that was given cn Dehalilt cf tné applicanc went to the injury, wnereas it was never an issué that the injury suflecec was & compensable injury. Very little evidence was directed to the extent of the incapacity of Miss Gersbacn on and from 22 Ba n Aprii 1982 anc to her ability to gain remunecatec employment. xinner, counsel for the responcent, observed during is wy cy uw aczgument in the appeai, "... the applicant's case before the Tribunai was misconceived as to the correct test anc, indeed, i as to what was being sought by way of review, ... An early identification of the true issues may well have improved the quality of the hearing and avoided the necessity for the Tribunal in its reasons making comments such as "The Tribunal is left to speculate" as to relevant matters. I turn now to the crux of the matter. The Tribunal made a specific finding tnat the applicant was not after her resignation on 21 April 1982 either totaliy or partially incapacitated foc work. Although many individual grounds were argued in this appeal, the crucial point is, I think, whether or not, on the evidence before it, the Tribunal, properiy instructed as to law, could have come to this conclusion. nt apne n=: et Ne eg on eee ee eee * a ed rg SDA at uN - aN The medicai evidence Gid not pic "60. --. SHE was, acvever, trom oc hajuryl unacil hec fesignatia incapacitated for the Work whl performing in that pericd within tf section 45 of the Act, in the sense a: 'yeduced physical capacity, Fry reason paysicai Gisability, for actually Couing wos an the labour marcxet in which tre emplcy was working' (Agnotts Snaca Fruduccs Pty. wea. V. Yacod Yacob (1965) 57 ALR 229. 253). 61. Ssom 22 April 1982, che applicant was mot partially incapacitated in th aabour macket in wnich she might reasonabiy be expected to ioax for work, namely, the words oz a typist, & receptionist, or other such work. cl @s severe as she herselir cescribed it. However, the cactors gave Tp. a picture or an injury of considerabie sign:rficance. Dunal's reasons included the folicwing passages : "36. Dr. Meachin ... said that she might be able to type for an hour or so but after that her back ache would become worse and she coule not sit down and type ail day. Afters an hour of typing = she would need some relief. 37. De. Meachin did not feel that any operation that might be performed on the applicant would get her back to the stage where she could perform fuil duties. ... The applicant had come to see De. Meachin on 12 September 1983. On 22 December of that year he wrote a report to her solicitors; and his opinion on 22 November 1983 was that tine applicant was fit for a variety of light duties which did not involve repetitive lifting or bending. 39. In cross examination, Dr. Opie agreed that dzsc protrusions, if the applicant has one, can cause pain. When asked whether he would expect the applicant to be able to sit for any length of time, Dr. Opie said that : ure the avpeilanc's injury ne re ~e caren ee nn ED EPS tk Bee ere Oo ee 8 Prolonged G i85 soretne eee people with cx lesions scneci eaaan oz ina sinitas way Casi whey in of prolongec stancing, Suc iF sre & 3C10 Gperator in @ local acea She right be able co get up, célievye ner bdact.i, anc have a fest or walk about. = felt she coula co with that. CQuestion : so that you woul pect ner to be abie to sit Fos at Least nour of two... tO Go some typing? WOULG think so, yes'. 420. De. Opie saie thar protcustion night reapsocn, trom it was vuinerabie, and : any strain on the lower spine such as prolonged walxing ofr standing COuUuLE reproduce the symptoms' ... just aDout anything can give a back pain Without necessarily Seing a back cripple. fCQuestion 2: WOULG you expect her to be adie to sit foc up to 4 or 5 hours a day typing? there would be many occasions oa which sne couid probably do that without any undue miscomrort. There are other occas:ons when she would not be able to co it; ft just Gepends on the state oF her bacx at tne time'. 42. ... Dr. Erlich ... opaned that the applicant had improved, but had not completely secoverecd. He said that : 'During acute periods she might have difficulty with anything, even just being uprignt. I think she might - depending on just the situation at that pacticular time. But I could see the situation where she gets bouts of sciatica with enough pain to cender ner unfic for any work at ali'. He said that : 'Most peopie who have got back problems can cope with a job like typing. They mignt have to get up now and then and have a bit of a stretch oc just have a breather, oc stretch the legs tor a moment but then I think even a completely fit healthy and normal type might want to do that every now ané@ then'. In his report Dr. Erlich said that the applicant should 'avoid heavy lifting, frequent stooping or working in difficult or cramped postures'. we - ee. eeeeyeeernent wee ees SO or - ane epee ee + te tet ae a. J CM PRETRIAL ha a - ena en i 3 3 é loxsa an isc sro s e 2 LIcl, céSulcting in back pala anc sigh sciatica, symptoms of which Rave secsistec. "lec "-faysS ace normai anc I feel chat & -umbar myeicgram and Cr scan woulc De necessacy icr fucther evaluation of the Cisabdliity. tn here symptoms and current signs, she wceulid be unzit to sit working as & typist let alone that sort of work that she was engacec uscn when this commencec. The functional -rays of the lumbar spine snouic also Se arrangec two see 1f there is any instability at cnis stage'." The meaning of the concept "incapacity for worx" was cecently examined un Arnotts Snack Products Pty btd v Jacob (1985) 57 ALR 229 and itis sufficient for me to ceter to that case which adequately covers the issue here under consideration, vhough the case d:scussed the New South Waies legislation. At page 234, aiter comprehensiveiy cCzscussing the principles to be applied, Mason, W2rison, Deane and Dawson od conciuded : "In the present case because the Commission <Founc that the respondent's injury cisabied him <Zrom performing part of his pre-injury wock, it followed tnat he was partially incapacitated for work - he was unable to undertake clericai duties which involved climbing, lifting ane bending. His incapacity for work, due to the injury, was clearly relevant to his pre-injury employment and to his ability to seli nas labour on the open market. Potential employers, like the appellant, who have jobs for clerks who are required to climb, lift and bend, would not employ him." In my opinion, the Tribunal faiiecé to apply this concepzt. The Tribunal, without in fact having any evidence before it that there was work availiable in Parkes of in Orange, where Miss Gersbach was then living, for a 55-yeac old typist with a bad back, drew the conclusion that Miss Gersbacn couid obtain I- hn et el a od ey here i ee ae ee concluding that, because Miss Gersbach could work aS & T¥pPist or Go other Like work, she nhac no incapacity for worn. ane Tribunal saic, --. Gn the evidence before 1t there 15 nothing to suggest tnat the applicant wouid be preventec Irom gaining employment as a tyrist by her Dack condition, ner from carrying our che ordinary Gutles of a& typist, at least as the Tribunal understands them to be. However, tne avoplicant does have a reduced capacity fcr Going the work on which she was engaged, namely, typing dutzes in association with lifting or dsagging of mail bags, filing of material in old style oves-fulli iiing cabinets, and meter reading where this cives balancing on a ladder." the Tribunal cic not suggest that Miss Gershbach was capable of earning income other than by typing foc an employer who understood that ",.. typing is now, for health and managerial yeasons, - regarded as something that can se interrupted by the empioyee at che employee s discretion at such time as a cramp, pain, or other Giscomfort should emerge in the course of the employee's duties.", or by like work. Thus, the evidence estabiished that Miss Gersbach had been partially incapacitated for work by the accident anc, as the Tribunal said, she was unable to do the work which prior to her resignation in 1982 she had been doing. Accordingly, one part oF the market which had previously been open to her was closed as a cesult of the injury. And, as the Australian Telecommunications -——— ieee epee n= w mer? a lie OE al ke oe ed ea & Gil Veale, VGA Tarcying agsavy ec injury he occurred wnen she hed Deen standing oa a ladder for some ctime sreéeacing meters. ico could not reascnabiy de suggested that she ought to repeat that Type of activity. variety of tasxs additional to the tasxs of typing. Prior to her injury, she could reasonably nave tloocxecé for work in & widce variety of empioyment, anclucing week involving srocping, bending, laztting anc so on. in my opinion, on the evicence Setore it, the Tribunal, 1£ properly instructed as to tne concepe of partial incapacity for work, could have come only conclusion that, by reason of her injucy, Miss Gersbach had a "reduced pnysical capacity, by reason of pnysicai disability, foc actuaily doing work in the labour market in which the employee was working or might reasonably be expected to word". For these reasons, the Tribunal ougnt to have found the ro provisions of s.46(1) satisfied and ought to have gone on to consider the question posed in s.46(2). Notwithstanding that much of the Tribunal s reasons may seem to have deen referable to Kh the question under s.46(2), the Tribunal did not maxe a inding under that sub-section, but found simply that Miss Gersbach was not, arterc her cesignation, either totally or pactially incapacitated for work. As, in my opinion, this finding was JS -—— ' -- ane a cm ale 4 * mee TT ey 37 Rt -- -> a=vn- -4- ee 3 WlOoOoN 1. .aW, — Wiad GLiuw ene ADPSa. Wilt. costs. 2.8 ceclsion | ertify that this and the {{ (eleven) preceding pages are a irue copy of the reasons for judgment herein of The Honour- able Mr, Justice J.D, DavieS Ss "Ridgeway " Associate Dated 25 /6/SG > as wee eee Oe --- pe -— ee mo ne ree eee