Page v Telstra Corporation Ltd [2004] FCAFC 80 (30 March 2004)

Last Updated: 31 March 2004

FEDERAL COURT OF AUSTRALIA

Page v Telstra Corporation Ltd [2004] FCAFC 80

WORKERS’ COMPENSATION – Commonwealth employees - compensation for permanent impairment – whether partial loss of use of a finger is included within the scope of the exemption provided by s 24(8)(a) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – use of the Tables in the Guide to the Assessment of the Degree of Permanent Impairment in determining the application of s 24(8)



Acts Interpretation Act 1901 (Cth) s 15AB
Administrative Appeals Tribunal Act 1975 (Cth) s 44
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 28, 24(8)(a), 24, 24(7), 24(8) 4, 5, 6, 27

Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Ticsay [1992] FCA 468; (1992) 38 FCR 181 approved
Whittaker v Comcare [1998] FCA 1099; (1998) 86 FCR 532 followed















SUZANNE LEE PAGE v TELSTRA CORPORATION LTD
Q85 of 2003



KIEFEL, RD NICHOLSON, NORTH JJ
BRISBANE
30 MARCH 2004

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q85 OF 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	SUZANNE LEE PAGE APPELLANT
AND:	TELSTRA CORPORATION LTD RESPONDENT
JUDGES:	KIEFEL, RD NICHOLSON, NORTH JJ
DATE OF ORDER:	30 MARCH 2004
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. Leave is granted to the appellant to bring the appeal out of time.
2. The appeal is allowed.
3. The decision of the Administrative Appeals Tribunal, made on 29 May 2002, is set aside.
4. The appellant’s application for compensation is remitted to the Administrative Appeals Tribunal for determination in accordance with these reasons.
5. The respondent is to pay the appellant’s costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q85 OF 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	SUZANNE LEE PAGE APPELLANT
AND:	TELSTRA CORPORATION LTD RESPONDENT

JUDGES:	KIEFEL, RD NICHOLSON, NORTH JJ
DATE:	30 MARCH 2004
PLACE:	BRISBANE

REASONS FOR JUDGMENT

KIEFEL J:

1 I have had the advantage of reading the reasons for judgment of Nicholson J and North J. I agree that an extension of time should be granted for the bringing of the appeal. I regret that otherwise I am unable to agree with the orders proposed.

2 Before his Honour the primary Judge there were raised two principal issues. The first concerned the use of the Tables in the Guide to the Assessment of the Degree of Permanent Impairment approved under s 28 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). The second concerned the extent of the exemption provided by s 24(8)(a).

3 His Honour observed that the appellant was able to seek assessment of the permanent impairment to her whole person, for the purposes of s 24, by reference to Tables 9.1, 9.3 and 9.4. The assessment under Table 9.1 would require the soft tissue injuries to the ring and little fingers of the right hand to be disregarded. The appellant had therefore sought assessment of those injuries under Table 9.4 and the percentage impairment so found added to that arising under Table 9.1. His Honour considered that approach to be impermissible. Furthermore, his Honour found that the appellant was unable to show an error in the Tribunal’s approach to the evidence relevant to an assessment under Table 9.4. I do not understand these aspects of his Honour’s reasons to be the subject of appeal.

4 His Honour the primary Judge observed that the appellant had not sought an assessment under Table 9.3. It is a fact that the appellant had not done so. However the Table did not apply to the appellant’s injuries, as the appellant submits. The note to the Table, which suggested that an assessment of impairment under it might have regard to partial as well as total losses of a finger or its use, was inconsistent with the balance of Table 9.3. I agree with their Honours in the majority that it should be disregarded and that Table 9.3 has regard only to total losses. It is not suggested that the appellant had sustained such a loss. The issue then assumes no relevance on the appeal.

5 The questions on the appeal concern only the application of s 24(8)(a). Section 24(7) provides:

‘(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 permanent impairment is less than 10%;

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

6 And s 24(8) then provides:

‘(8) Subsection (7) does not apply to any one or more of the following:

(a) the impairment constituted by the loss, or the loss of the use, of a finger;
(b) the impairment constituted by the loss, or the loss of the use, of a toe;

(c) the impairment constituted by the loss of the sense of taste;
(d) the impairment constituted by the loss of the sense of smell.’

7 The appellant did not establish the degree of impairment referred to in subsection (7). Clearly the appellant had not physically lost the fingers which were the source of her impairment, as both the Tribunal and his Honour observed. The Tribunal had said:

‘22. The Tribunal does not accept that subsection 24(8) applies in Ms Page’s case. Her case is concerned with the loss of function of her right hand and the translation of that to a whole person impairment. It is true that part of her right hand impairment is due to problems with three fingers and a thumb but her claim does not involve a claim for impairment resulting from the loss of specific fingers.’

(Emphasis added)

8 The appellant contends that the Tribunal and his Honour ought to have considered the question whether she had lost the use of a finger within the meaning of paragraph (a) and further that in doing so they ought to have read the reference to a finger’s use as including partial loss of use. Neither the Tribunal nor his Honour expressly considered the question of the appellant’s loss of the use of three of her fingers in either a partial or total sense. It was not necessary for the Tribunal or his Honour to consider whether the appellant had suffered a complete loss of use of one or more fingers, as she would not have contended for that.

9 It is not at all obvious to me that the appellant did raise before the Tribunal or before his Honour the question of an impairment constituted by the partial loss of use of one or more fingers such as would be relevant to s 24(8). In my view this cannot be inferred from the fact that she had identified as relevant to her impairment the difficulties associated with three separate fingers.

10 In any event, in my respectful view it would not have been correct for the Tribunal or his Honour to have considered partial loss as constituting the impairment spoken of in s 24(8)(a). The plain meaning of the loss, or the loss of the use, of is a total or complete loss of use. That is to say, there would be no use remaining. The subsection recognises the importance of such an impairment, which might otherwise not qualify for compensation on the basis of the Guide, as the primary Judge sought to point out. The other losses excepted from the operation of s 24(7) are also complete losses. The loss of the sense of taste or the sense of smell is the loss of each of those senses as a whole in the same way the loss of the use of a finger is the loss of all of that use. There does not appear to me to be any warrant for qualifying the words used. Further, to read the loss as including partial loss would be to introduce uncertainty into the subsection. It could refer to any amount of loss, since the provision cannot offer any guidance as to what might qualify as a partial loss of use. It would seem to me that the words used in the subsection were likely to have had certainty as their aim.

11 The appellant submitted that the Explanatory Statement as to the Guide confirms the approach contended for. In relevant part it had said:

"Injuries to fingers and toes are exempted from the 10 per cent qualifying requirement."

12 The statement is ambiguous and cannot be taken as explaining even the Guide it refers to, let alone s 24(8).

13 The definition of ‘impairment’ in s 4 of the Act does not assist the appellant. The appellant relies upon that part of the meaning which was given as ‘the loss of the use ... of any part of the body.’ Section 4 is expressed to be subject to any contrary intention appearing in a provision. In my view s 24(8) shows that. Whilst ‘impairment’ may have the wider meaning given by s 4 for other purposes and in other provisions, s 24(8)(a) is self-contained. It provides that ‘the impairment’ is ‘constituted by’ the loss of use.

14 In my view the appeal should be dismissed with costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate:

Dated: 30 March 2004

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 85 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	SUZANNE LEE PAGE APPELLANT
AND:	TELSTRA CORPORATION LIMITED RESPONDENT

JUDGES:	RD NICHOLSON & NORTH JJ
DATE:	30 MARCH 2004
PLACE:	BRISBANE

REASONS FOR JUDGMENT

RD NICHOLSON AND NORTH JJ

15 Suzanne Page, the appellant, was employed by Telstra Corporation Limited, the respondent, when she was injured on 27 November 1992. She made a claim for lump sum compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) on the ground that the injury had resulted in permanent impairment. On 23 July 1999, the claim was rejected. The appellant applied to the Administrative Appeals Tribunal (AAT) for review of the decision rejecting her claim. On 29 May 2002, the AAT affirmed the decision to reject her claim. The appellant then appealed to a single judge of this Court (the primary judge) under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) against the decision of the AAT. On 20 May 2003, the primary judge dismissed the appeal.

16 The appellant desired to appeal from the decision of the primary judge, but due to a mistaken view by her solicitor as to the time within which to commence the appeal, the notice of appeal was not filed in time. Consequently, the appellant filed a motion seeking an extension of time in which to appeal. The affidavit in support of the motion exhibited a draft notice of appeal. As the respondent did not oppose the extension of time, there will be an order to that effect.

17 The central issue in this appeal concerns the operation of s 24 of the Act. That section provides for payment of compensation for injury to an employee where the injury results in permanent impairment: s 24(1). The section also stipulates that generally no compensation is payable where the permanent impairment is less than ten per cent: s 24(7). There are certain exceptions to this limitation set out in s 24(8), so that, in those specified circumstances, compensation is payable even where the injury results in a permanent impairment of less than ten per cent. It is common ground in this appeal that the appellant’s injury resulted in a permanent impairment of less than ten per cent. The appellant contended that the AAT erred in law in holding that the limitation in s 24(7) applied to her situation, and that the primary judge erred in upholding the decision of the AAT on that issue. The respondent contended that the AAT was correct in its decision on this aspect, and that the primary judge also correctly held that the ten per cent threshold applied in this case.

THE RELEVANT STATUTORY PROVISIONS

18 Section 24 of the Act provides:

‘(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 permanent impairment is less than 10%;

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

(7A) Subject to section 25, if:

(a) the employee has a permanent impairment that is a hearing loss; and
(b) Comcare determines that the binaural hearing loss suffered by the employee is less than 5%;

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

(8) Subsection (7) does not apply to any one or more of the following:

(a) the impairment constituted by the loss, or the loss of the use, of a finger;
(b) the impairment constituted by the loss, or the loss of the use, of a toe;
(c) the impairment constituted by the loss of the sense of taste;
(d) the impairment constituted by the loss of the sense of smell.

(9)	For the purposes of this section, the maximum amount is $80,000.’

[emphasis added]

19 The appellant was an employee as defined in s 5, for the purpose of s 24. Injury is defined, relevantly, to mean an injury arising out of, or in the course of, the employee’s employment: s 4, and see s 6. 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’: see s 4. Permanent means ‘likely to continue indefinitely’: s 4.

20 The Guide, referred to in s 24(5), is dealt with further in s 28 which provides:

‘(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;’

21 Comcare prepared a ‘Guide to the Assessment of the Degree of Permanent Impairment’ pursuant to s 28(1)(a) (the Guide). It is divided into two parts – Part A and Part B. Part A is used to assess the degree of permanent impairment resulting from an injury (s 24), and Part B is used to assess the degree of non-economic loss (s 27). A preliminary section entitled ‘Principles of Assessment’ explains the functioning of the Guide. As to Part A it states:

‘Part A of the Guide is based on the concept of "whole person impairment" which is drawn from the American Medical Association’s Guides.

Evaluation of a whole person impairment is a medical appraisal of the nature and extent of the effect of an injury or disease on a person’s functional capacity and activities of daily living.

As with the American Medical Association’s Guides, Part A of this guide is structured by assembling detailed descriptions of impairments into groups according to body system and expressing the extent of each impairment as a percentage value of the functional capacity of a normal healthy person. Thus a percentage value can be assigned to an employee’s impairment by reference to the relevant description in this guide.’

22 In the same section, the following appears:

‘Fingers and Toes

Impairment relating to the loss or injury to a finger or toe refers not only to amputation or total loss of efficient use of the whole digit, but also to partial loss of efficient use of a digit.

Inapplicability of the Guide

In the unlikely event that an employees’ impairment is of a kind that cannot be assessed in accordance with the provisions of the Guide, Comcare may direct that assessment be made under the provisions of the current American Medical Association’s Guides.’

23 Part A is divided into fourteen sections dealing with the cardiovascular system, respiratory system, endocrine system, skin disorders, psychiatric disorders, visual system, ear, nose and throat disorders, digestive system, musculo-skeletal system, urinary system, reproductive system and neurological function respectively. Section 9 deals with the musculo-skeletal system and comprises six separate tables as follows:

‘Table 9.1 - Upper extremity
Table 9.2 - Lower extremity
Table 9.3 - Amputations and total loss of function
Table 9.4 - Limb function – upper limb
Table 9.5 - Limb function – lower limb
Table 9.6 - Spine’

24 Although rather lengthy, it is useful to set out tables 9.1, 9.3 and 9.4, which are relevant to this appeal:

‘ TABLE 9.1

Upper Extremity
(Percentage Whole Person Impairment)

Introduction – These tables are intended to be used to assess impairment arising from specific joint lesions or amputations. Where the joints function normally but the use of a limb is restricted for other reasons, eg soft tissue injury, nerve injury or bony injury not involving joints, Tables 9.4 or 9.5 should be used. These Tables can be used to assess the impairment of overall limb function for any cause. NOTE: either the musculo-skeletal table or Table 9.4 or 9.5 should be used – not both.

Assessment is in accordance with the range of joint movement. X-rays should not be taken solely for assessment purposes.

NOTE: Values are for one joint only. Where more than one joint is affected, values should be combined using the Combined Values Table (table 14.1).


% DESCRIPTION OF LEVEL OF IMPAIRMENT

0 X-ray changes but no loss of function of shoulder, elbow or wrist

5 Any ONE of the following:

•	x-ray changes with minimal loss of function of shoulder, elbow or wrist
•	ankylosis of any joint of fingers 4 and/ or 5

10 Any ONE of the following:

•	loss of less than half normal range of movement of shoulder or elbow
•	loss of half normal range of movement of wrist
•	ankylosis of any joints of fingers 2 and/or 3

15 Any ONE of the following:

•	loss of more than half normal range of movement of wrist
•	ankylosis of any joints of thumb

20 Any ONE of the following:

•	loss of half normal range of movement of shoulder or elbow
•	ankylosis of wrist

30 Loss of more than half normal range of movement of shoulder or elbow

40 Ankylosis of shoulder or elbow

...

TABLE 9.3

Amputations and/or Total Loss of Function
(Percentage Whole Person Impairment)


% DESCRIPTION OF LEVEL OF IMPAIRMENT

5 Any ONE of the following:

• amputation of little finger
• amputation of ring finger
• total loss of movement of joint of thumb
• amputation of terminal segment of thumb involving one third

its flexor surface without loss of distal phalanx or joint

• amputation of two phalanges or joints of forefinger
• amputation of of [sic] two phalanges or joints of middle, ring or little fingers
• amputation of distal phalanx or joint of forefinger
• amputation of distal phalanx or joint of great toe

10 Any ONE of the following:

• amputation of all toes
• amputation of great toe
• amputation of middle finger
• amputation of distal phalanx or joint of thumb

15 Any ONE of the following:

•	mid-metatarsal amputation
•	amputation of index finger

20 Any ONE of the following:

•	partial amputation of the foot (Chopart)
•	amputation of the thumb

30 Any ONE of the following:

• amputation below knee with functional stump
• amputation of ankle
• amputation of all fingers except thumb

40 Any ONE of the following:

• amputation above knee with functional stump
• disarticulation at knee
• Gritti Stokes amputation
• amputation below knee with short stump (7.5 cm or less below intercondylar notch)
• disarticulation at hip joint
• amputation above knee with short stump (7.5 cm or less below tuber ischii)

50 Any ONE of the following:

•	hemipelvectomy
•	amputation of forearm distal to biceps tendon insertion
•	disarticulation at wrist joint
•	mid-carpal or mid-metacarpal amputation of hand

60 Any ONE of the following:

• amputation between deltoid insertion and elbow
• disarticulation at elbow
• amputation at of forearm proximal to biceps tendon insertion
• disarticulation at shoulder
• amputation above deltoid insertion

70 Forequarter (upper)


NOTE: Impairment relating to the loss of or injury to a finger or toe refers not only to amputation or total loss of efficient use of the whole digit, but also to partial loss of efficient use of a digit.


TABLE 9.4

Limb Function -Upper limb
(Percentage Whole Person Impairment)


% DESCRIPTION OF LEVEL OF IMPAIRMENT

10 Can use limb for self care AND grasping and holding BUT has difficulty with digital dexterity

20 Can use limb for self care BUT has NO digital dexterity OR has difficulties grasping and holding

30 Retains some use of limb BUT has difficulty with self care

40 Cannot use limb for self care.’

THE FACTUAL BACKGROUND

25 The appellant is a single woman who was born on 22 October 1953. She worked as an administration officer with the respondent from 1985 to 1998.

26 As part of her duties, the appellant was required to deliver goods to staff in the field at the Emerald Line Depot. On 27 November 1992, whilst getting into a work truck, she grabbed a handle to pull herself up and into the truck. She suddenly felt a severe burning pain in the back of her right hand.

27 As a result of the incident on 27 November 1992:

(a)	the appellant was off work from 27 November 1992 until 27 January 1993;
(b)	On 17 December 1992, Dr Bulwinkel, orthopaedic surgeon, operated on the appellant’s right hand to repair the tendons of her right ring and little fingers.
(c)	Liability was accepted by the respondent for both the time off work and for the costs of the surgery.
(d)	The appellant returned to work on graduated duties and resumed full-time work on 12 February 1993.

28 The appellant’s normal work duties involved constant and repetitive keyboard work, doing time sheets, ordering stores and typing letters. She had a heavy keyboard load.

29 The constant keyboard work aggravated the appellant’s right hand injuries to such an extent that she had to stop working on 18 March 1993. She underwent secondary repair surgery on 19 March 1993. A tendon from her right foot was grafted onto her right hand. Also, a joint in her right thumb was fused.

30 The appellant was off work from 18 March 1993 to 31 May 1993. The respondent accepted liability for the secondary repair but not for the fusion of the joint of the right thumb. In May 1995, the appellant was transferred to the Rockhampton office of the respondent. Her duties were not modified. She kept performing a substantial amount of keyboard work.

31 In 1998, the condition of the appellant’s right hand began to deteriorate again. She had further surgery by Dr Bulwinkel in June 1998, involving repair to the right ring and little finger tendons, together with an open synovectomy of the joint of the right index finger. The appellant was off work from 22 June 1998 until at least 9 July 2001. The respondent accepted liability for the latest operation and time off work.

THE AAT DECISION

32 Before the AAT the appellant relied on two alternative arguments. She contended either that her permanent impairment resulting from the work-related injury exceeded ten percent, or that the ten percent threshold did not apply, because her case was for the loss of use of three fingers and thus fell within s 24(8)(a).

33 There was medical evidence before the AAT from Dr Macfarlane and Dr Bulwinkel. The AAT accepted the evidence of Dr Macfarlane and that aspect of the AAT decision is not in contest between the parties on the appeal. The AAT extracted the relevant parts of two reports prepared by Dr Macfarlane dated 17 February 1999 and 16 June 1999. Those which relate to the issues on this appeal are as follows:

34 From the report dated 17 February 1999:

‘Previous x-rays were seen. Comments are as follows:

1. 7 December 1992: Rheumatoid arthritis is present in both wrists with a subluxed metacarpo-phalangeal joint of the right thumb. There is ulnar drift, widening of the distal radio-ulnar joints.

2. 13 January 1994: Xrays [sic] of both feet show cystic changes in the proximal phalanx of the left big toe and rheumatoid arthritis affecting the metacarso-phalangeal [sic] joints of both big toes.

3. 9 January 1998: The right hand: this shows generalised rheumatoid arthritis with a subluxed metacarpo-phalangeal joint of the right index finger.

4. 24 June 1998: This is of the right hand and shows that the metacarpo- phalangeal joint of the right thumb is satisfactorily fused.

The iso-elastic joint replacement at the metacarpo-phalangeal joint of the index finger is in position and is satisfactory.

Generalised rheumatoid arthritis is seen in the right hand and wrist.

The bone scan of 9 January 1998 has not been seen only the report thereon.

Diagnosis

1. Generalised rheumatoid arthritis, particularly affecting the right hand and wrist, also shown on bone scan to be affecting the tarsal bones (small bones of the feet) and the right knee and left hand.

2. A rupture of the extensor tendons to the right ring and little fingers, consistent with the accident of 1992.

3. Gout related to the Methotrexate medication.
...

Subsequent operations are anticipated. It is noted that it is likely that she will come to fusion of the right wrist, possibly at most over the next several years, but this is due to the generalised rheumatoid arthritis and not to her work.

Opinion and Assessment
This patient has had an injury to her right hand with rupture of the extensor tendons to the ring and little fingers, consistent with the accident of 1992.

This has been superimposed on long-standing generalised rheumatoid arthritis as noted above.

A secondary procedure was also required in 1993 owing to problems following the initial surgery.

She also had further operation in June 1998 for further repair and plication of the extensor tendon to the little finger. At the same time joint replacement was carried out at the metacarpo-phalangeal joint of the right index finger. Xrays [sic] prior to this procedure show subluxation of that joint.

In my opinion the problems related to that joint are due largely, if not completely, to her rheumatoid arthritis. There may have been some aggravation in the course of her work owing to difficulties using her right ring and little fingers, but primarily the problems with that joint in my opinion would relate to the rheumatoid arthritis and only to a relatively small amount due to aggravation by her work.
...

5. There is no reason seen for her being totally incapacitated for work since June 1998 and it would be expected that following such a procedure she would have been off work two or three months at most, following which she could have returned to light work.

6. She is unable to do too much in the way of repetitive work at a keyboard or computer, particularly with her right hand. Matters are expected to become gradually worse, particularly with regard to the right wrist. This relates to the generalised rheumatoid arthritis and is an ongoing matter.

7. With regard to permanent impairment, after referring to the American Medical Association Guides, 4^th Edition, there is in my opinion:

(a) With regard to the ring and little fingers: In the order of 10% (ten percent) loss of each of these fingers which converts to 2% (two percent loss of the hand, 2% (two percent) of the upper extremity.

(b) The right index finger: 61% (sixty-one percent) loss of the finger, converting to 12% (twelve percent) of the hand and 11% (eleven percent) of the upper extremity.

Of this, it is considered reasonable to attribute 20% (twenty percent) to her work, leading to 2% (two percent) impairment of the upper extremity.

This then is 4% (four percent) impairment of the right arm due to her work, which converts to 2% (two percent) impairment of the whole person. This impairment is permanent.

The other problems relating to the thumb and wrist are not related.

The position is stationary and stable with regard to the 1992 injury, but further problems with the rheumatoid arthritis are anticipated.

It is uncertain how long the replacement of the metacarpo-phalangeal joint of the right index finger will last, and further operation may be required in the future.

Further operation on the extensor tendons right ring and little finger is not anticipated or indicated.

Her medications with regard to rheumatoid arthritis and/or gout will require continuation. Further information should be obtained from her Rheumatologist if required.’ [emphasis added]

35 From the report dated 16 June 1999:

‘1. Using the Table 9.4: limb function - upper limb, percentage of whole person impairment: there is 20% (twenty percent) of impairment of the whole person.

In separating the degree of impairment resulting from the injury of November 1992 and the underlying long-standing generalised rheumatoid arthritis that is present, her major problems relate to the rheumatoid arthritis.

Obviously she does have impairment due to the accident, but the Tables do not allow for any assessment of this below 10% (ten percent) of impairment of the whole patient.

In my opinion this is too high and appropriate assessments have been made in my report of 17 February 1999.

Table 9.1 is again difficult to use, but might possibly give an answer of 25% (twenty-five percent) of impairment of the whole person due to her overall problems, though the Table does not help in assessing the problems relating to the extensor tendons of the right ring and little fingers which in my opinion would be relatively minimal and at most in the order of 5% (five percent) of impairment of the whole person. (Under Table 9.1 and not after referring to the widely used American Medical Association Guides).’ [emphasis added]

36 The AAT then concluded:

‘18. The Tribunal is satisfied that Ms Page has a significant permanent impairment to her right hand but that the permanent impairment is due almost completely to her rheumatoid arthritis. This is not a case where the impairment has arisen solely because of an aggravation of an underlying condition. The aggravation component is very small. It is also not the case where the so-called "egg-shell skull rule" applies. The major component of Ms Page’s impairment to her right hand is due to rheumatoid arthritis from which she has suffered to a significant degree since 1984. That is for at least eight years before the truck incident.

19. It is the view of the Tribunal that in attempting to assign a percentage of work related impairment, compared to a percentage of naturally occurring impairment to Ms Page’s right hand, Dr Bulwinkel did not come to terms with the problem, whereas Dr Macfarlane did. The Tribunal accepts Dr Macfarlane’s figure of a maximum of 5% of whole person impairment.

20. A whole person impairment of 5% does not give rise to an award of compensation because it is less than 10%. See s 24(7) of the Safety Rehabilitation and Compensation Act 1988.

"24(7) [Where degree of permanent impairment less then 10%] 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 permanent impairment is less than 10%;

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

21. It was submitted on behalf of Ms Page that subsection 24(7) does not apply in her case because of subsection 24(8)(a) which provides:

"24(8) [Exceptions] Subsection (7) does not apply to anyone or more of the following:

(a)	the impairment constituted by the loss, or the loss of the use, of a finger;"

22. The Tribunal does not accept that subsection 24(8) applies in Ms Page’s case. Her case is concerned with the loss of function of her right hand and the translation of that to a whole person impairment. It is true that part of her right hand impairment is due to problems with three fingers and a thumb but her claim does not involve a claim for impairment resulting from the loss of specific fingers.’ [emphasis added]

In this passage, the AAT rejected both arguments put by the appellant.

THE JUDGMENT OF THE PRIMARY JUDGE

37 The appellant contended before the primary judge that the AAT had erred in rejecting both arguments. His Honour did not accept this contention. The present appeal concerns only the rejection of the argument in relation to the application of s 24(8)(a). Consequently, we refer to his Honour’s reasons on that issue alone. His Honour said, at [43] – [48]:

‘Counsel for the applicant submitted that s 24(8) of the Act meant that injuries to fingers and toes were not subject to the 10 percent threshold established by s 24(7) of the Act.

As the applicant injured three fingers in the course of her employment with Telstra and as it was the injury to those fingers which gave rise to the claim before the AAT, it was submitted that s 24(7) had no application to the circumstances of the applicant.

Section 24(8)(a) of the Act provides that subsection (7) does not apply to "the impairment constituted by the loss, or the loss of the use, of a finger." The section is to protect workers where there is an injury to a finger, eg the amputation of a little finger or ring finger, or a total loss of movement of a thumb joint which, under Table 9.3, only attract a percentage permanent impairment of the whole person of 5 percent. Absent s 24(8), injuries of that type would not attract a sufficient percentage impairment to entitle the worker to a lump sum payment of compensation for permanent impairment under s 24 of the Act.

The original claim made by the applicant against Telstra (as appears from the medical report of Dr Bulwinkel forming part of the claim form) was for compensation for permanent impairment to the hand as a whole resulting from injuries to various parts of it.

The case advanced by the applicant before the AAT and this Court was impairment constituted by the loss of limb function of an upper limb assessed under Table 9.4 Limb Function - Upper Limb (Percentage Whole Person Impairment). The evidence and submissions were directed to assessment under that Table. A claim assessed under Table 9.4 is a single assessment in respect of the limb as a whole, irrespective of the number or nature of the underlying injuries which give rise to it: Van Grinsven at [16] and [17]. An alternative argument was advanced in respect of impairment constituted by joint function impairment of an upper extremity to be assessed under Table 9.1. The applicant did not purport to advance a claim for impairment constituted by a partial loss of efficient use of one or more of the fingers of the right hand to be assessed individually under Table 9.3 and then combined using the Combined Values Table 14. Nor was any submission made on her behalf as to what the result of such a claim would have been on the evidence accepted by the AAT.

In my view it cannot be said that the AAT erred in not treating the impairment which it found as the impairment constituted by the loss, or the loss of use of, a finger. The impairment found to exist was constituted by loss of function of the upper limb or upper extremity and was not an impairment to which s 24(8) applied. Accordingly, the threshold in s 24(7) of the Act continued to apply to the applicant’s claim.’

GROUNDS OF APPEAL

38 The grounds of appeal pursued at the hearing of the appeal were set out in the Amended Draft Notice of Appeal, filed on 6 November 2003, as follows:

‘3.1 His Honour erred in holding that s.24(8) of the Safety, Rehabilitation and Compensation Act ("the Act") did not apply and that the threshold in s.24(7) of the Act continued to apply to the Appellant’s claim for compensation for permanent impairment in circumstances where, even on the evidence most favourable to the Respondent, the Appellant had a 2% impairment of her right upper limb due to work-related injury to her right index, ring and little fingers.

3.2 His Honour erred in holding that s.24(8)(a) of the Act operated only to protect workers where there is an injury to a finger which, under Table 9.3 of the Comcare Guide to the Assessment of the Degree of Permanent Impairment, only attracted a percentage impairment of the whole person of 5%.

3.3. His Honour erred in failing to rule upon ground 4.2 of the Applicant’s Amended Notice of Appeal, namely that the Tribunal erred in failing to consider whether the Applicant’s claim or part of her claim was for impairment constituted by the "loss of the use of a finger" within s.24(8)(a) of the Act.’

CONSIDERATION

39 The reason that the AAT held that s 24(8)(a) did not apply was that the appellant’s claim was not for an impairment constituted by the ‘loss of specific fingers’. There is an assumption in this reasoning that s 24(8)(a) only applies where the claim is based on an impairment constituted by the loss of specific fingers. The AAT did not have regard to the reference in s 24(8)(a) to an impairment constituted by the loss of use of a finger. Paragraph 3.3 of the Amended Notice of Appeal complains that the primary judge failed to rule on this argument. The appellant’s complaint is correct. His Honour did not rule on the argument. If that were the only argument before the primary judge then it was bound to succeed because s 24(8)(a) includes a reference to impairment constituted by the loss of use of a finger, and this was the basis upon which the appellant’s claim was made.

40 It was, however, implicit in his Honour’s reasoning that it was unnecessary to deal with this argument because, on the approach taken by the primary judge, the appellant was bound to fail for other reasons. The first reason flowed from the construction of s 24(8)(a) adopted by his Honour, and the second reason concerned his Honour’s characterisation of the appellant’s claim.

41 On the question of construction, at [45] of the reasons of the primary judge and reproduced at [23] of these reasons, his Honour construed s 24(8)(a) to apply only where there is an injury to a finger, which, under Table 9.3, attracts a percentage impairment of the whole person of 5 percent. His Honour held that the appellant had relied on Tables 9.1 and 9.4, but not 9.3. As the only basis upon which the appellant could succeed under s 24(8)(a) was by reliance on Table 9.3, his Honour determined that the AAT did not err in holding that the section was not brought into operation in this case.

42 It is not clear why his Honour regarded s 24(8)(a) as limited to impairments which fall within Table 9.3. No such limitation is found in the text of the section. Such a limitation would not be consistent with the statutory context explained in Whittaker v Comcare [1998] FCA 1099; (1998) 86 FCR 532 (Whittaker) at 545 as follows:

‘[T]he general principle of the Act, insofar as it makes provision for Commonwealth employee compensation, is that contained in s 24(1), namely, that compensation is payable where an employee suffers an injury that results in a permanent impairment.’

43 In our view, the wording of s 24(8)(a) shows that the partial loss of use of a finger is included within the scope of the exempting provision of the paragraph. The first consideration leading to that view derives from the content of s 24 read as a whole. It is a section directed to establishing liability to pay compensation to an employee in respect of injury in the case of permanent impairment. Given the objective of the Act to provide for the rehabilitation of Commonwealth employees, the section or portions of it should not be approached on the basis that there is a statutory intention manifested to make the definition of ‘impairment’ inapplicable in whole or part unless there is evident some plain indication of that intention. Only by starting from the assumption of such expression of contrary intention can it be concluded that, with respect to s 24(8), there is a plain meaning that the paragraph is applicable only to the whole of the organs or senses of the body there identified. In our view there is nothing in the section which supports a view that the definition of ‘impairment’ is to be read in a manner contrary to that in which it is defined in the Act.

44 Turning next to the language of par (a), the use of the word ‘impairment’ attracts the statutory definition in s 4 previously referred to, which refers to ‘any part of the body...or part of such system or function.’ While it is the case that the degree of permanent ‘impairment’ is, in accordance with s 24(5) and s 24(6) to be assessed in accordance with the approved Guide and expressed as a percentage, that does not have the consequence that the provisions of the Guide dominate over the statutory use of the language: Whittaker at 545. Furthermore, par (a) refers to ‘a finger’ which is to be understood in the context of the definition of ‘impairment’, and so this can be applicable to part of a finger.

45 Turning then to the other subparagraphs of s 24(8), that the word ‘impairment’ is repeated in each of them with the same effect, namely that it is capable of application to a partial loss of the type referred to in each of the subparagraphs.

46 The application of the exempting effect of the subsections of s 24(8) to instances of partial loss of subject matters to which they refer is not productive of any uncertainty in the operation of the subsection. This is because of the provisions of s 24(5) which require the degree of permanent impairment of the employee to be determined under the provisions of the approved Guide. Provided the determination is of a degree less than 10%, the exempting effect of s 24(8) can be applicable.

47 The real issue in relation to s 24(8)(a) is whether it can be the case that a partial impairment of a finger, a toe or the loss of the sense of taste or smell could reasonably be intended to be sufficient to displace the exclusionary provision in s 24(7). To express this in a different way, the issue is whether only a total loss (or loss of use where applicable) of such parts of the body or bodily function is required to displace the exclusionary effect of s 24(7). There is no reason why that should necessarily be the case. In the event of a partial loss of a finger or the use of a finger, the exclusion of s 24(7) by operation of s 24(8) does not result in payment of any unreasonable amount for that loss or loss of use. Rather it results only in compensation appropriate to the degree of injury: s 25(5). That is consistent with Parliament having identified the loss (or loss of use) of a finger, a toe and the senses of smell and taste as being of such adverse importance to the prospects of an employee to be rehabilitated that the exclusion by s 24(7) of the employee from compensation when the degree of impairment is less that 10% should not, in the interests of the employee, be applicable. Parliament having designated the parts of the body or its functions being of such importance, there is no a priori reason why impairment to part of those parts or functions should not also so qualify.

48 We have examined the explanatory memorandum relating to the bills by which the provisions in s 24(8) were introduced but we have not found any of them of any assistance in relation to this issue of statutory interpretation. As part of the legislative history of s 24, it is the case that prior to the enactment of the Commonwealth Employees’ Rehabilitation and Compensation Amendment Act 1992 (Cth) with effect from 24 December 1992, s 24(7) and (8) read as follows:

‘(7) Subject to section 25, where the Commission determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section.

(8) Subsection (7) does not apply in relation to an impairment resulting from the loss, or injury to, a finger or toe.’

49 The 1992 amendment substituted s 24(8) in its present form. In doing so it omitted the reference to ‘injury’ and introduced the concept of ‘the loss of the use.’ If Parliament intended thereby to require the exempting effect of s 24(8) to be applicable only to an instance of total loss or total loss of use, it neither made that apparent in materials before the Parliament to which regard may be had pursuant to s 15AB of the Acts Interpretation Act 1901 (Cth) or in the language of the subsection read in the context of the section and of the Act.

50 In short we consider that there is nothing in the language of s 24 read as a whole and nothing in the policy or objectives of the Act to support a conclusion that the exempting effect of s 24(8) from the exclusionary provision in s 24(7) should be read so as to be applicable only to a total loss.

51 Further, there are other provisions in the Guide that set an impairment of 5 percent or less for impairments constituted by the loss of the use of a finger. One example is in Table 9.1 which stipulates a 5 percent impairment level for ankylosis of any joint of fingers 4 and/or 5. There is no reason why such an impairment would not fall within s 24(8)(a). Then, there are impairments that cannot be assessed in accordance with the provisions of the Guide. The Guide provides that in such a case the impairment may be assessed under the American Medical Association’s Guide. Impairments constituted by the partial loss of use of a finger may fall within that category. Indeed, Dr Macfarlane initially assessed the appellant’s condition by reference to the American Medical Association’s Guide. He only reverted to Tables 9.1 and 9.4 when the respondent requested that he do so. In so doing, he referred to the difficulty of applying those tables to the appellant’s case.

52 On the view that the primary judge took of the meaning of s 24(8)(a), his Honour would have held that the appellant fell within the exemption if the appellant had put her case under Table 9.3. On his Honour’s approach, she failed because she had not relied on Table 9.3. His Honour appreciated that the appellant’s claim was for the partial loss of use of the right index, ring and little fingers. One step in his reasoning was that Table 9.3 applied to such a situation. He said at par 27:

‘Finally, it was open to the applicant to seek to have the impairment to each finger assessed under Table 9.3 as that Table, as stated in the Principles of Assessment, and in the endorsement on the Table itself, was not limited to the amputation of fingers or total loss of use of fingers, but also related to "partial loss of efficient use of a digit". Assessment under Table 9.3 would have required use of Table 14, the Combined Values Table (see Guide at p 5).’ [emphasis added]

53 The reference to the endorsement is a reference to the note to Table 9.3 which states:

‘NOTE: Impairment relating to the loss of or injury to a finger or toe refers not only to amputation or total loss of efficient use of the whole digit, but also to partial loss of efficient use of a digit.’

54 We should, in passing, note our view concerning this issue. In Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Ticsay [1992] FCA 468; (1992) 38 FCR 181, Olney J said at 187:

‘The Note at the foot of Table 9.3 repeats the passage from the introduction already quoted, but the function intended to be served by it is not immediately apparent. Construed literally it seems to equate the partial loss of the efficient use of a digit to amputation or total loss of efficient use, and, assuming the amputations suffered by the applicant have resulted in the partial loss of efficient use of the fingers involved, would entitle the respondent to compensation assessed on the basis of 10 per cent for the injury to his middle finger and 15 per cent for the injury to his index finger. And this for two amputations which are not specifically compensable as amputations.

The definition of "impairment" in s 4(1) of the Act obviously encompasses the idea of partial loss of efficient use and such an impairment, if permanent, would be compensable under s 24. But to give the Note the only meaning which it is capable of having, would be to make a nonsense of most of what precedes it in the table. The Tribunal gave some consideration to the intended effect of the Note and was unable to give it any meaning in the context of the table. I share this view, which has not been challenged on appeal.’ [emphasis added]

55 In Whittaker, the Full Court referred to the conclusion of Olney J with apparent agreement. We also agree with that view. Table 9.3 is not available for a partial loss of use of a finger, and was thus not available to the appellant in the present case.

56 The second basis on which his Honour held that the AAT had rightly rejected the appellant’s claim was that the claim advanced by the applicant was not for an impairment constituted by the loss of, or loss of use of, a finger, but was for impairment constituted by the loss of function of the upper limb or upper extremity, and hence was not an impairment to which s 24(8)(a) applied.

57 The claim form accepted by the respondent as the originating claim form was the form dated 4 November 1998. It contained a question on the second page directed to the treating doctor, which enquired as to the impairment to bodily parts resulting from the medical condition. The answer given by the appellant’s treating doctor was ‘Index finger MCPJ & IV & V finger extention [sic].’ The form also contained an earlier question as to what permanent injuries or impairments had been suffered by the appellant as a result of her condition, however this section was left blank.

58 The appellant submitted a later claim form, dated 25 March 1999, in respect to a further claim for compensation. That form was arguably referable to the claim presently under consideration. On that form, the question on the second page as to impairment to bodily parts was answered in identical terms to the answer given on the form dated 4 November 1998. However, the earlier question as to permanent impairment was answered as follows, ‘R index finger, R Ring Finger; R Little Finger; L Hand; R Hand; Whole Person Impairment’. This answer compliments the answer to the later question as to impairment to bodily parts given on both claim forms, referred to above. It also supports the appellant’s contention that her injury was not merely for loss of function of upper limb or upper extremity, but also related to loss of function of individual fingers.

59 The evidence accepted by the AAT was that the injury which precipitated the appellant’s claim for compensation was the rupture of the extensor tendons to the right ring and little fingers resulting from the accident at work in November 1992, and the consequential injury to the right index finger resulting from the appellant’s inability to use the ring and little fingers satisfactorily. Before the AAT, the appellant argued that the injury could be expressed as an upper limb function impairment within Table 9.4, and as an upper extremity function impairment within Table 9.1. However, the starting point for both arguments was the injury to, and consequent partial loss of use of the three fingers. The formulation of the argument in terms of upper limb and/or upper extremity impairment was dictated by the requirements of the Tables relied upon. There was, however, an independent argument under s 24(8)(a) which did not necessarily depend on the impairment falling within those Tables. This was made clear by the written submission of the appellant to the AAT which stated:

‘4. The Applicant’s contentions are:

(a) The effect of section 24(8)(a) is that section 24(7) does not apply because the Applicant’s impairment is constituted by loss of use of three fingers.

...

14. The Applicant’s injuries consist of soft tissue (tendon) injuries to the ring and little fingers of her right hand and a joint injury to her right index and middle finger.’ [emphasis added]

60 That the basis of the appellant’s claim was an impairment constituted by the partial loss of use of the right index, ring and little fingers was accepted by the AAT is seen in the opening paragraph of its decision, which states:

‘1. This is an application to review a decision made on 23 July 1999, to deny lump sum compensation under ss 24 and 27 of the Safety Rehabilitation and Compensation Act 1988, to Suzanne Page in respect to claimed permanent injury/impairment to her right index finger, right ring finger, right little finger, right hand and left hand.’
[emphasis added]

61 These factors demonstrate that the appellant relied on the impairment to her fingers as the basis for the application of s 24(8)(a) to her case.

62 In any event, it would have been no answer to her argument under s 24(8)(a), that the appellant had only relied on an upper limb or upper extremity impairment. These characterisations derived from the description in the Tables in the Guide. Section 24(5) makes the Guide the method for determining the degree of permanent impairment. The Guide, thus, has a limited role. As the Full Court said in Whittaker at 545:

‘[I]t is only permissible for Comcare to turn to the Guide once it has reached the conclusion, after taking into account the matters listed in s 24(2) of the Act, that the employee has suffered an injury which has resulted in a permanent impairment. The Guide then becomes relevant, but only insofar as it contains the criteria by reference to which Comcare must assess the degree of that employee’s permanent impairment. The Guide, which has this limited role, should not be allowed to limit the general legislative purpose.’

63 Section 24(8) stands alone. It does not deal with the determination of the degree of permanent impairment. It must be read in accordance with its own terms. The question posed by s 24(8)(a) is a question of fact, namely, whether impairment is constituted by the loss of, or loss of use of, a finger. The fact that the impairment can be described as an upper limb or upper extremity impairment within the terms of the Tables does not preclude it from also being properly described as an impairment constituted by the loss of use of a finger within s 24(8)(a).

CONCLUSION

64 It follows from these reasons that the primary judge erred in holding that s 24(8)(a) had a limited operation, and that the appellant had not made a claim for loss of use of fingers within s 24(8)(a). His Honour did not rule on the argument that the AAT failed to consider the claim as a loss of use claim rather than a loss of fingers claim. It is clear that the AAT did not consider the claim as a loss of use of fingers claim. The appellant’s application for compensation must be remitted to the AAT so that it may deal with the claim in accordance with these reasons. The appeal will be allowed with costs.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Nicholson and North.

Associate:

Dated: 30 March 2004

Counsel for the Appellant:	Mr D Rangiah
Solicitor for the Appellant:	Maurice Blackburn Cashman
Counsel for the Respondent:	Mr R Dickson
Solicitor for the Respondent:	Campbell Standish Partners
Date of Hearing:	13 November 2003
Date of Judgment:	30 March 2004