Carson v Comcare

REASONS FOR JUDGMENT THE COURT: 1 This is an appeal from a single judge of the Court (Lander J) given on 22 December 2003 dismissing an appeal by Dr Peter John Carson ("the appellant") from a decision of the Administrative Appeals Tribunal ("the AAT") given on 6 February 2003. The AAT affirmed a decision by an Independent Review Officer to disallow a claim made by the appellant under the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the Act"). Dr Carson appeared on his own behalf, both before the primary judge and on this appeal. 2 The appeal has had a lengthy litigious history. The factual recitation that follows is taken largely from the reasons of the primary judge. 3 Dr Carson was formerly employed by the Defence, Science and Technology Organisation ("DSTO") as a research scientist. He made a claim under the Act for stress and depression which he claimed had arisen out of his employment with DSTO, and had resulted in permanent impairment and non-economic loss. The stressors in the workplace that are said to have caused the injuries complained of relate to the appellant's relationships with other employees at DSTO. The appellant claims to have suffered victimisation and harassment at the hands of his superiors in the workplace. 4 Compensation is payable under s 24 of the Act where an injury results in permanent impairment, and s 27 of the Act provides that additional compensation is payable in respect of non-economic loss where an injury results in a permanent impairment, and compensation is payable under s 24 of the Act. 5 The interpretation provisions contained in s 4 of the Act provide that an "injury" means, among other things, "a disease suffered by an employee". A "disease" is itself defined to mean: '(a) any ailment suffered by an employee; or (b) the aggravation of any such ailment; being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.' (Emphasis added) An "aggravation" is defined to include 'acceleration or recurrence'. 6 An "ailment" is defined as 'any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development). An "impairment" is defined to mean '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'. There is also a definition of "permanent" which should be noted; it does not mean 'to last forever', but 'likely to continue indefinitely'. 7 Section 4(8) of the Act is important in the present case. It provides: 'A reference in this Act to an injury suffered by an employee is, unless the contrary intention appears, a reference to an injury suffered by the employee in respect of which compensation is payable under this Act.' (Emphasis added) 8 Section 24 of the Act relevantly provides: '24 Compensation for injuries resulting in permanent impairment (1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury … (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.' 9 The section also provides that if Comcare determines that the degree of permanent impairment is less than 10 per cent an amount of compensation is not payable to the employee under the section. It provides in subs (7) that: '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.' 10 The consequence of a determination by Comcare under s 24(7) of the Act that the degree of permanent impairment is less than 10 per cent is that compensation is not payable under either section 24 or section 27. 11 The determination of the degree of permanent impairment referred to in s 24(5) and the amount of compensation to be assessed unde s 27(2) of the Act are determined by reference to the Approved Guide ("the Guide") which is provided for by s 28 of the Act. Section 28(1) of the Act provides: '(1) Comcare may, from time to time, prepare a written document, to be called "Guide to the Assessment of the Degree of Permanent Impairment", setting out: (a) criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury shall be determined; (b) criteria by reference to which the degree of non-economic loss suffered by an employee as a result of an injury or impairment shall be determined; and (c) methods by which the degree of permanent impairment and the degree of non-economic loss, as determined under those criteria, shall be expressed as a percentage.' 12 The Guide contains tables which group types of impairment according to "body system" and then expresses degrees of impairment as a percentage of the "functional capacity of a normal healthy person". Under the Guide, assessments of impairment can only be made by reference to the specific percentage values mentioned in the various tables. Table 5.1, which deals with psychiatric conditions, provides for percentage increments in the description of level of impairment, of 5 per cent up to impairment of 30 per cent, and for 10 per cent increments thereafter. 13 The Guide deals with the aggravation of pre-existing ailments as follows: 'Aggravation An assessment should not be made unless the effects of an aggravation are considered permanent. If the employee's impairment is entirely attributable to a pre-existing or underlying condition, or to the natural progression of such a condition the assessment for permanent impairment should be nil. Where it is possible to isolate the compensable effects of any injury upon a pre-existing or underlying condition the assessment of the degree of permanent impairment should reflect only the impairment due to those compensable effects.' 14 In February 1995, the appellant made a claim for injuries said to result in permanent impairment under the Act. Comcare disallowed the claim on the basis that it was not satisfied that the appellant had in fact been subjected to harassment in the workplace. That decision was affirmed by an Independent Review Officer pursuant to s 62 of the Act. The appellant applied to the AAT for a review of that decision. On 3 August 1998 the then President of the AAT, von Doussa J, allowed the review and set aside the decision of the Independent Review Officer (the first AAT decision). His Honour found: 'Comcare is liable to pay compensation in accordance with the Safety Rehabilitation and Compensation Act 1988 in respect of an injury suffered by Dr Carson, namely depression or an aggravation of depression, on 24 January 1995 which caused incapacity for work.' The claim was returned to Comcare for determination of the degree of the appellant's permanent impairment, and to pay compensation in accordance with the Act. 15 On 11 September 2000 a delegate of Comcare assessed the degree of the appellant's permanent impairment at 10 per cent under the Guide, and awarded damages under s 24 and s 27 of the Act for both permanent impairment and non-economic loss totalling $16,016.96. 16 On 5 October 2000 the solicitors for the appellant, by facsimile to the "Review Manager, Comcare" sought a reconsideration of the assessment of the appellant's entitlements. That facsimile referred to the determination dated 11 September 2000, and continued: 'Dr Carson seeks a reconsideration of the assessment of his entitlements pursuant to secs 24 and 27. He relies, in particular, on the following grounds:- Ř Dr Tony Davis has assessed a whole person impairment of "between 10 and 15%" - an independent consideration of impairment taking into account all appropriate considerations including medical opinion merits an assessment of 15%; Ř The ratings in respect of non-economic loss for pain and suffering should not have been discounted; Ř None of the mobility, social relationships and recreation and leisure activities components should have been assessed as a Nil rating; Ř The reasons given for nil ratings misstate or misconstrue Dr Davis' report and the details provided by Dr Carson.' The request for reconsideration was treated as a formal request pursuant to s 62(2) of the Act, and as a request for reconsideration of the whole of the determination of 11 September 2000. 17 Section 62(2) of the Act provides: 'A request to a determining authority to reconsider a determination made by it may be made by: (a) the claimant; or (b) if the determination affects the Commonwealth - the Commonwealth; or (c) if the determination affects a Commonwealth authority - that Commonwealth authority.' 18 On 21 November 2000, after a reconsideration of the claim, an Independent Review Officer varied the decision of 11 September 2000, and determined: 'On the basis of evidence before me I hereby determine that the employee is not entitled to compensation under Section 24 of the Act, as the amount of whole person impairment as a result of the employee's employment is assessed as being less than 10%.' That review officer expressed his reason for this determination as follows: '… I find that the recent specialist medical evidence shows that he has an impairment level of 10% whole person. Currently the employee does not display a sustained anxiety and does not have a significant depressive disorder. The employee's choice in not undertaking the reasonable medical treatment suggested by Professor Goldney and the resulting persistence of his condition have now contributed to the impairment's permanence. However the level of the impairment also involves other issues. I find that the underlying paranoid personality disorder would also contribute to a degree of the "minor distortions of thinking" and "reactions to stressor of daily living with minor loss of personal or social efficiency". In Dr Davis's opinion it is these constitutional and personality factors that are far more relevant than any external factors related to employment. While the employee has an impairment level of 10% Whole Person, in relation to his psychological state, only a minor percentage of that impairment is attributable to contributions from his employment. As such I find that the level of Whole Person impairment, as a result of his employment's contribution is less than 10% and therefore there is no benefit payable as the level is less than the legislative minimum for a payment under Section 24. As there is no entitlement payable under section 24, there is no entitlement to any payment under section 27.' 19 Again, the applicant applied to the AAT for a review of that decision. On 6 February 2003 the AAT determined that the appellant had a pre-existing permanent impairment of 5 per cent prior to suffering his injury in the workplace ("the second AAT decision"). Whilst his total impairment was accepted as being 10 per cent, only the balance of 5 per cent was found to have resulted from injury suffered in the workplace. The AAT considered that the impairment was not compensable under the Act. 20 In the course of the reasons for judgment of the second AAT decision, the AAT said: 'Turning now to the medical evidence, it was agreed by all the medical experts that Dr Carson suffers a permanent impairment of 10% under Table 5.1 of the Guide, and the Tribunal so finds. However, there was significant disagreement among the specialists over the cause of this impairment. Dr Le Page considered that Dr Carson's impairment was entirely caused by his employment. According to him, the applicant had no pre-existing disorder, but had a "sensitive personality". When the applicant was confronted with stressors which he perceived as being beyond his ability to cope with, he developed his current condition. This condition is now, according to Dr Le Page, a permanent feature of the applicant's psychological state. Dr Davis stated that approximately one third of the applicant's impairment could be said to be work-caused. His opinion was that the applicant had prominent paranoid personality traits, possibly amounting to a PPD [Paranoid Personality Disorder], which had influenced the way that the applicant had perceived and responded to stressors in the workplace. The applicant's personality was responsible for the other two thirds of his overall impairment. Professor Goldney stated that possibly "2 or 3%" of the applicant's impairment was caused by depression, but that none of it was caused by the workplace. He believed that the applicant had a PPD, that the majority of the applicant's impairment was due to his PPD, and that the depression itself was wholly attributable to the PPD and not to the workplace.' The AAT noted: '… the medical evidence was not always clear on why apportionment was made the way it was. As will become apparent, this issue is crucial.' The AAT found: … the Tribunal is not satisfied on the evidence that the applicant suffers from a PPD. The evidence is equivocal, and two of the three specialists who appeared before the Tribunal stated that they were not prepared to make a diagnosis of PPD. The Tribunal is satisfied and finds that the applicant has paranoid personality traits, probably "prominent" ones, to use the words of Dr Davis, and certainly more pronounced than average.' The AAT further found: '… the Tribunal is satisfied on the evidence of the applicant, the applicant's demeanour and the evidence of Dr Le Page [the appellant's treating psychiatrist] that the applicant does have a permanent impairment related to his workplace.' And the AAT further found: 'The Tribunal finds, then, that it is established that the applicant now has a permanent impairment under Table 5.1 of the Guide of 10%. As stated above, the Tribunal is further satisfied that the applicant's impairment was driven by his perception of events in the workplace, and that this perception was partly distorted. The remaining question then, is whether the applicant's permanent impairment can be apportioned between the applicant's employment and the applicant's personality.' 21 The AAT referred to that part of the Guide under the heading "Aggravation" and, in particular, the sentence: 'Where it is possible to isolate the compensable effects of an injury upon a pre-existing or underlying condition the assessment of the degree of permanent impairment should reflect only the impairment due to those compensable effects.' 22 The AAT noted the observations of Jenkinson J in Comcare v Amorebieta (1996) 66 FCR 83 at 96: '… in contemplation of law the degree of impairment to which the aggravation brings the respondent's spine is caused by - "results from" - that aggravation, whatever the lesser degree of impairment was which preceded that aggravation, and whatever the extent to which events and degenerative processes preceding that aggravation contributed to cause that degree of impairment' and later his Honour went on to say: 'The conclusions I have stated are not in my opinion inconsistent with the statements … concerning aggravation in the "Principles of Assessment" in the Guide. Here the Tribunal did isolate the "compensable effects" of the aggravation upon the "pre-existing or underlying condition".' 23 The AAT referred to the observations of Burchett J in Martin v Australian Postal Corporation (1999) 29 AAR 420 at 433 ("Martin"): 'There will perhaps be many cases in which it will be very difficult to determine whether and how this provision of the Guide can be applied. Whilst it may be possible (I do not say it would be in every case) to isolate the compensable effects of a further injury to the hand of a sawmiller who has previously lost a finger (whether as the result of an accident or treatment for a disease), it would be impossible to isolate those effects in, for example, many cases of previously not disabling or only mildly symptomatic diseases. Fluctuations in the severity of a constitutional condition and the similarity or identity of the effects typical of the condition, or capable of being produced by it, with those typical of an aggravation of the condition, or capable of being produced by such an aggravation, may make disentanglement of the one set of effects from the other set of effects a hopeless task. The draftsman of the approved Guide plainly recognised this by the qualification "[w]here it is possible to isolate the compensable effects of an injury". Those words should be understood as acknowledging both the wider problem to which I have referred, and the continuing validity of the analysis made by each of Jordan CJ and Barwick CJ. If there be any ambiguity, and I do not think there is, the remedial nature of the legislation would require it to be construed liberally, and not restrictively: Brennan v Comcare (1994) 50 FCR 555 at 559;19 AAR 542 at 546; Comcare v Bozicevic (1997) 74 FCR 269 at 273; 25 AAR 98 at 110-111.' 24 The reference by Burchett J to this analysis of each of Jordan CJ and Barwick CJ is reference to the observations of Jordan CJ in Salisbury v Australian Iron & Steel Ltd (1943) 44 SR (NSW) 157 at 161 et seq, and the observations of Barwick CJ in Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19 at 23 et seq. 25 The AAT rejected the proposition of Professor Goldney that all of the applicant's impairment was due to his paranoid personality and said: 'Dr Davis said that two-thirds of the impairment was caused by the applicant's personality.' The AAT said: 'Dr Davis had clearly given a great deal of attention to the question of causation, and was most helpful in his analysis. However, he admitted that his assessment was arbitrary, and highly artificial. Dr Le Page stated that none of the applicant's impairment was work-caused.' 26 The AAT was of the view that it was impossible, in the instant case, to make any apportionment for "proneness", and noting the observations of Burchett J in Martin that where there is any doubt, the Guide and the Act should be applied in favour of the appellant, the Tribunal said: 'The Tribunal finds that the entirety of the impairment suffered by the applicant at the DSTO "results from" his compensable injury within the meaning of the Act.' 27 This sentence, while perplexing on first reading, is in the context focusing on a possible isolation of the impairment suffered at the DSTO as a result of his workplace experiences, from impairment that predated those experiences and was unrelated to his employment. 28 The AAT continued: 'It remains to examine the second contention of the respondent, that the applicant suffered an impairment of 5% due to his paranoid personality before he suffered his compensable injury. … the Tribunal accepts that the applicant does have some paranoid personality traits.' (Emphasis added) 29 The AAT then referred to the statement by Professor Goldney that the applicant would at least satisfy the criteria for an impairment of 5 per cent under the Guide, irrespective of any events which occurred at DSTO. 30 The AAT said: 'Dr Davis … stated that the applicant had a permanent impairment of 5% due solely to personality factors.' And: 'Dr Davis considered the applicant to have an assessable impairment that is independent of his injury suffered at the DSTO. Dr Le Page disagreed with Dr Davis and Professor Goldney on this point.' 31 The AAT expressed its conclusion: 'Taking the medical evidence as a whole into account, the Tribunal is satisfied that the applicant had a permanent impairment of 5% prior to suffering his compensable injury at the DSTO. The Tribunal is thus bound to find that the permanent impairment suffered by the applicant is only 5%. As s24(7) stipulates that an impairment of less than 10% is not compensable under the Act, the Tribunal regrets to find that the applicant is not entitled to compensation for permanent impairment or non-economic loss under the Act.' (Emphasis added) 32 That decision was the subject of an appeal, pursuant to s 44 of the Administrative Appeals Tribunal Act (1975) (Cth) ("the AAT Act") to the Federal Court. In that application, the appellant sought to have Comcare's determination of his permanent impairment for comparative purposes of 10 per cent restored. 33 The primary judge noted: 'Both the Independent Review Officer and the second AAT considered, on the basis of evidence before them, that the compensable effects of the work-related injury could be identified and isolated. On appeal, the appellant did not seek to argue that the compensable effects could not be isolated and that his injury should be treated as an aggravation that was wholly compensable. Rather, the appellant urged the Court to find that there was no pre-existing disorder/impairment, and therefore the whole 10 per cent impairment was compensable.' (Emphasis added) 34 The appellant complained before the primary judge that: 'The Senior Member disallowed [the appellant's] supporting evidence. That evidence had previously been accepted in a previous AAT hearing before Justice von Doussa.' 35 Having noted that the parties before the second AAT had agreed that the second AAT was bound by the findings of fact in the first AAT decision, the primary judge concluded that the course of proceedings adopted by the second AAT involved no error. The appellant was represented by counsel at the second AAT hearing but, as earlier noted, appeared on his own behalf before the primary judge and on this appeal. 36 The primary judge noted that a document entitled "Background for Statement of Facts" which the appellant provided to the Court was not the Statement of Agreed Facts relied upon by von Doussa J. 37 It was contended before us that the primary judge was in error, but it seems that the Statement of Agreed Facts relied upon by von Doussa J was not the document given by the appellant to the primary judge. Both in fact and law, however, nothing turns on the correctness of the statement by the primary judge, because, concerning the background facts as found by von Doussa J at par 4 of his Honour's reasons, the appellant's counsel at the second AAT specifically indicated that he took no issue with the findings of von Doussa J, and the second AAT did not make any findings that were not made by, or were inconsistent with the findings made by, von Doussa J. 38 The appellant complained before the primary judge that the AAT had regard to medical reports from Dr Le Page, Professor Goldney and Dr Davis which were prepared and submitted after the date of the decision to be reviewed, being 21 November 2000. The primary judge rejected this contention and referred to the observations of Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589: 'The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.' 39 The primary complaint with regard to the receipt of additional evidence was the receipt of Dr Davis' report of 27 November 2001, in which Dr Davis attributed 'two-thirds of the impairment to constitutional and personality factors, and one-third to work-related factors.' The appellant complained before the primary judge that this "diagnosis" was a change of opinion. Dr Davis rejected the suggestion that his apportionment of the 10 per cent impairment to its various causes in the various reports represented a change of mind on his part. 40 The primary judge held that the second AAT did not commit an error of law in having regard to medical reports prepared after the date of the reviewable decision, including Dr Davis' 27 November 2001 report. The primary judge also rejected an allegation of perjury said to have been committed by Professor Goldney. This is based on a statement by Professor Goldney that he did not think he had arranged for a colleague to carry out psychometric testing on Dr Carson, whereas saying, 'I would have put it in my reports and I've been through them pretty thoroughly and it's not in my reports is it?' However, Dr Goldney (as he then was) had made a report dated 24 July 1995 which report refers to neuropsychological testing being undertaken by a Dr Wood in July 1995. Dr Wood is a neuropsychologist whose rooms were next to Professor Goldney's rooms. 41 The primary judge said: 'There is not a scintilla of evidence to support any allegation that Professor Goldney committed perjury. …One statement may have been wrong but that is not an offence. It does not become an offence unless it can be established that Professor Goldney knew what he said was false or misleading.' 42 The primary judge rejected the tender of evidence before him which was not before the second AAT. The primary judge examined the proposed further evidence and held that that evidence was not admissible on the appeal. 43 The appellant had submitted to the primary judge that the evidence of both Dr Davis and Professor Goldney was unreliable and that the AAT should have preferred the evidence of Dr Le Page. The primary judge concluded, however, that the Tribunal member had decided the question of legal liability for injury and impairment under the Act after a appropriate consideration of the expert evidence and making the appropriate findings, and had committed no error of law. 44 Other errors said by the appellant to have been committed by the second AAT were alleged before the primary judge, but were rejected by him. By way of example, the AAT had recorded at par 144 of its reasons that 'Dr Le Page stated that none of the [appellant's] impairment was work-caused', whereas in fact Dr Le Page had expressed the opinion that all of the [appellant's] impairment was work-caused. The primary judge said this error was clearly a slip on the part of the Tribunal member, and the primary judge accepted that the Tribunal had correctly understood Dr Le Page's evidence and nothing turned on the obvious clerical error. The primary judge also rejected a complaint that relevant documents, which had not in fact been put before the AAT, involved an error of law, finding that the fact that the documents were not included in the T documents prepared by Comcare, nor sought to be introduced in evidence by the appellant's counsel, did not mean that there had been error on the part of the AAT, let alone an error of law. 45 Much of the complaints that were argued before the primary judge and rejected by him were repeated by Dr Carson before this Court. 46 Concerning the complaint that documents had erroneously not been presented to the AAT, there is no error in the conclusion by the primary judge that this omission involved no error on the part of the AAT, let alone error of law. The alleged perjury by Professor Goldney was said by the appellant to be such, as even if not amounting to perjury, ought to have discredited his evidence. It was said that his evidence given at the second AAT was wrong on a significant point about which he should reasonably have been able to answer correctly. Having regard to the actual evidence given by Professor Goldney, there can be no doubt that there is no merit in the appellant's claims concerning this aspect of Professor Goldney's evidence. 47 The question of whether the document presented to the primary judge was or was not the Statement of Agreed Facts relied upon by von Doussa J has already been referred to, and the error, if there be one, is quite immaterial to the conclusion of the second AAT and of the appeal to the primary judge. 48 The appellant complains as one of his grounds appeal: '10. Lander J (para 40) made various errors of deduction stemming from the fact that my then lawyer (Tim Bourne) made his request outside the relevant redetermination period and so it should not have been considered as a redetermination of the assessment. It was also outside the time for the respondent to redetermine its decision. An extension of time had neither been requested nor been granted.' 49 The determination in relation to the appellant's claim for a permanent impairment was on 11 September 2000, and the reconsideration was sought by facsimile dated 5 October 2000. This request was within the thirty-day period provided by subs 62(3)(b) of the Act, and there was, therefore, no error of law as alleged by this ground of appeal in Comcare reconsidering the determination. The appellant's complaint appears to be that Comcare did what his solicitors asked it to do. His real complaint is that the result of the reconsideration was not what he wanted or hoped for. 50 The appellant further complains: '12. Lander J (para 57) opines that the experienced expert witness, Dr Davis' opinion in August 2000 that I was suffering a 10% to 15% disability according to the Guide is in substance the same opinion as that Davis expressed eventually, on AGS' urging, of a 5% according to the Guide. This is clearly incorrect.' 51 In his report of 4 August 2000, Dr Davis expressed a view that: '3. The over-all percentage of whole person impairment resulting from this condition is between 10 and 15%, according to the Guide to the Assessment of the Degree of Permanent Impairment. 4. I consider that work-related factor contribute a proportion of this disorder, but I am unable to provide a quantitative measure of this.' 52 In his report of 8 June 2001 Dr Davis stated that, in light of the matters which had been pointed out to him, the appropriate level of impairment was 10%. In his report of 27 November 2001 he stated: '… I consider that a substantial proportion of Mr. Carson's permanent impairment is related to underlying personality and constitutional factors. It seems reasonable to attribute two-thirds of the impairment to constitutional and personality factors, and one-third to work-related factors.' 53 The primary judge, in pars 56 to 59 of his Honour's reasons, considered the two relevant reports of Dr Davis in some detail, and noted: 'It is not clear why Dr Davis would be better placed to make an apportionment in November 2001 than he was closer to the date of his examination of the appellant. However, the report does not in substance constitute a new opinion. Although the report of 4 August 2000 is not entirely clear, it is implicit in that report that a proportion of the percentage of whole person impairment was not caused by the work-related compensable injury. That follows from his statement: "I consider that the work related factor contribute a proportion of this disorder, but I am unable to provide a quantitative measure of this." 54 The primary judge noted, as is undoubtedly the fact, that Dr Davis was of the opinion that the work-related factor contributed to the appellant's disorder, not that it was the sole contributor to the disorder. 55 Neither before the primary judge, nor on this appeal, did the appellant identify, let alone establish, any error of law in respect of the central findings by the second AAT. As the primary judge noted: 'The second AAT accepted that Dr Carson had a permanent impairment of 10 per cent, and that Dr Carson had some permanent impairment related to his workplace. The Tribunal regarded it as possible to "isolate the compensable effects" of the work-related injury on a pre-existing condition in this case. The tribunal was ultimately "satisfied that the applicant had a permanent impairment of 5 per cent prior to suffering his compensable injury at the DSTO. The Tribunal is thus bound to find that the permanent impairment suffered by the applicant is only 5%".' 56 As earlier indicated, the primary judge noted that 'On appeal, the appellant did not seek to argue that the compensable effects could not be isolated and that his injury should be treated as an aggravation that was wholly compensable.' 57 There is no merit in any of the grounds of appeal, most of which have been the subject of detailed consideration above. Many of the appellant's complaints are that facts were incorrectly found, or that facts contrary to those found by the second AAT should have been found. 58 It is clear that Dr Carson, who is a very intelligent and highly educated person but without legal qualifications, imperfectly understands that what has to be established for a successful appeal under s 44 of the AAT Act is an error of law on the part of the AAT. This is most graphically indicated by his submission, frequently repeated during this appeal, that 'an incorrect judgment is an Error of Law.' 59 The primary judge was correct in finding that Dr Carson had failed to demonstrate any such error of law in his appeal to the Federal Court. 60 The appeal must be dismissed with costs. 61 The further written submissions of Dr Carson made reference to the question of costs. Whether Comcare pursues the costs order is, of course, a matter for it. I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Stone and Bennett