Comcare v Line

Federal Court of Australia|2002-05-02|Before: Carr J

INTRODUCTION 1 This is an appeal from a decision of the Administrative Appeals Tribunal allowing the respondent's claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the Act") and setting aside a decision of 9 July 1998 of a delegate of the applicant. The delegate had affirmed a decision, given on 18 June 1998, of another delegate of the applicant. The appeal involves, among other matters, the construction of certain provisions of the Act which govern the rate of weekly compensation payments, and the definition of "suitable employment".

factual background 2 The respondent was born on 27 August 1974. On 10 August 1992 she enlisted in the Royal Australian Air Force ("RAAF"). Her first duties were to take part in what is known as "recruit training". This included marching, running and prolonged standing. After approximately seven weeks of recruit training the respondent development shin pain. She was diagnosed as suffering from stress fractures, a diagnosis which was confirmed by bone scans. She also began to experience severe headaches and dramatic mood swings. From and after the last week or two of recruit training the RAAF restricted the respondent's duties so that they did not involve any marching, running, or prolonged standing. 3 On 21 July 1993, right and left shin fasciotomies were performed on the respondent under general anaesthetic. 4 The respondent's symptoms persisted i.e. continuing pain in both legs, severe headaches and dramatic mood swings. She was referred to two psychologists and to a consultant neurologist. Her work in the RAAF was of a clerical nature in an accounts department. She had considerable difficulty managing that work. 5 On 17 September 1995 the respondent was discharged from the RAAF on the ground that she was medically unfit for further service by reason of her physical and mental impairment which were described, respectively, as "bilateral fasciotomies" and "somatoform disorder". 6 The respondent made considerable efforts to obtain employment. In November 1995 she secured employment in a card shop for a few weeks. She worked as a clerk at Edith Cowan University near Perth from 9 April 1996 to 20 June 1997 when her contract came to an end. She does not appear to have worked since that date. 7 On 6 July 1994 the respondent lodged a claim for compensation with the Department of Defence. The applicant accepted liability to pay compensation to her pursuant to the Act in respect of injuries described as "stress fracture left and right tibiae, left fibula and bilateral compartment syndrome and somatoform disorder". Later the applicant also accepted liability to pay to the respondent lump sum compensation for permanent impairment and non-economic loss, pursuant to ss 24 and 27 of the Act, in respect of her "lower legs condition" on the basis that she had suffered a "whole person impairment" of 20% as a result of the compensable injury to her legs. 8 On 18 June 1998 a delegate of the applicant made a determination assessing the amount of compensation payable to the respondent by way of incapacity (i.e. weekly) payments pursuant to s 19 of the Act. The delegate determined that the total amount of such compensation payable to the respondent for the period from 18 September 1995 to 24 June 1998 was $16,977.52 (gross) and that thereafter the amount of such compensation payable to the respondent per week was $19.80 (gross). This calculation was based on the delegate's assessment that the amount which the respondent was then able to earn in "suitable employment" was $477.37 per week. 9 On 9 July 1998 another delegate of the applicant made a decision affirming the determination of 18 June 1998. On 28 July 1998 the respondent filed with the Tribunal an application to review the delegate's decision of 9 July 1998.

the legislative framework 10 Section 14(1) of the Act provides: "Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment." 11 Section 4(1) contains the following definitions relevant to the above: ""injury" means: (a) a disease suffered by an employee; or (b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or (c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment; but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment; "disease" means: (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; "ailment" means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); "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;" 12 Section 4(9) of the Act provides: "A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being: (a) an incapacity to engage in any work; or (b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened." Section 19 of the Act relevantly provides: "(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies. (2) Subject to this Part, Comcare is liable to pay compensation to the employee in respect of the injury, for each of the first 45 weeks (whether consecutive or otherwise) during which the employee is incapacitated, of an amount calculated under the formula: NWE-AE where: NWE is the amount of the employee's normal weekly earnings; and AE is the amount per week (if any) that the employee is able to earn in suitable employment. (3) Subject to this Part, Comcare is liable to pay to the employee, in respect of the injury, for each week during which the employee is incapacitated, other than a week referred to in subsection (2), compensation: (a) where the employee is not employed during that week - of an amount equal to 75% of his or her normal weekly earnings less the amount (if any) that he or she was able to earn during that week in suitable employment; (b) where the employee is employed for 25% or less of his or her normal weekly hours during that week - of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 80% of his or her normal weekly earnings; (c) where the employee is employed for more than 25% but not more than 50% of his or her normal weekly hours during that week - of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 85% of his or her normal weekly earnings; (d) where the employee is employed for more than 50% but not more than 75% of his or her normal weekly hours during that week - of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 90% of his or her normal weekly earnings; (e) where the employee is employed for more than 75% but less than 100% of his or her normal weekly hours during that week - of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 95% of his or her normal weekly earnings; and (f) where the employee is employed for 100% of his or her normal weekly hours during that week-of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 100% of his or her normal weekly earnings. …

(4) In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to: (a) where the employee is in employment - the amount per week that the employee is earning in that employment; (b) where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer - the amount per week that the employee would be earning in that employment if he or she were engaged in that employment,. (c) where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment - the amount per week that the employee would be earning in that employment if he or she were engaged in that employment; (d) where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition - the amount that the employee would be earning in that employment if he or she were engaged in that employment; (e) where, after becoming incapacitated for work, the employee has failed to seek suitable employment-the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment; (f) where paragraph (b), (c), (d) or (e) applies to the employee - whether the employee's failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare's opinion, reasonable in all the circumstances; and (g) any other matter that Comcare considers relevant. . . . (6) Where an amount of compensation calculated under paragraph (3)(a) is less than the minimum earnings, the amount so calculated shall be increased by an amount equal to the difference between that amount and the minimum earnings. . . ." 13 The expression "normal weekly earnings" is defined in s 4(1) as follows: ""normal weekly earnings" means the normal weekly earnings of an employee calculated under section 8." 14 It is not necessary to set out section 8. It is sufficient to explain that that section provides for the calculation of the normal weekly earnings of an employee before an injury, and the adjustment of that amount in the various circumstances referred to in that section. 15 The expression "suitable employment" is defined in s 4(1) as follows: ""suitable employment", in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means: (a) in the case of an employee who, on the day on which he or she was injured was a permanent employee of the Commonwealth or a licensed corporation and who did not subsequently terminate that employment - employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to: (i) the employee's age, experience, training, language and other skills; (ii) the employee's suitability for rehabilitation or vocational retraining; (iii) where employment is available in a place that would require the employee to change his or her place of residence - whether it is reasonable to expect the employee to change his or her place of residence; and (iv) any other relevant matter; and (b) in any other case - any employment (including self-employment), having regard to the matters specified in subparagraphs (a)(i), (ii), (iii) and (iv)."

the Tribunal's decision 16 The Tribunal heard evidence from the respondent and her husband. It also heard evidence from a sergeant and a commissioned officer in the RAAF (called by the applicant) regarding certain aspects of the respondent's service. The applicant also called a recruitment consultant who had prepared a report regarding the general availability to the respondent of employment in Perth in certain specified capacities. 17 But the main evidence before the Tribunal was medical evidence. The Tribunal reviewed numerous medical reports dating from 5 November 1992. Those reports included reports from Dr J Edelman, a consultant rheumatologist. The respondent called Dr Edelman to give evidence before the Tribunal. The Tribunal also reviewed reports from Dr P Nathan, a practitioner in sports medicine. 18 The applicant called Mr F G Bell, orthopaedic surgeon, as a witness and tendered a report from him. 19 The Tribunal referred extensively to this medical evidence in its reasons. It set out voluminous extracts from the various medical reports. The Tribunal then set out the relevant statutory provisions. Those included some of the definitions in s 4 and the relevant provisions of ss 14 and 19 of the Act. 20 The Tribunal found, on the basis of the medical evidence before it, that the respondent, during her period of service in the RAAF, suffered the following physical ailments: · stress fracture of the left and right tibiae and of the left fibula; and

· anterior and posterior compartment syndrome in both legs. 21 It also found that the respondent, during her period of service in the RAAF suffered a mental ailment, namely somatoform disorder or anxiety/depressive disorder. The Tribunal found that the respondent had continued to suffer a physical ailment manifested in the form of chronic pain in both legs and the mental ailment described above. 22 The Tribunal found, for reasons which it set out, that both the physical and psychiatric/psychological ailments sustained by the respondent had been "contributed to in a material degree" by her employment with the Commonwealth in the RAAF. The Tribunal held that each of these conditions was a "disease" as defined in s 4(1) of the Act and also constituted an "injury" as defined in that sub-section. The Tribunal found that as a result of each of those conditions the respondent suffered and continued to suffer an incapacity to engage in work at the same level at which she was engaged by the Commonwealth in that work or any other work immediately before the injury happened, within the meaning of s 4(9)(b) of the Act. Accordingly, it found that the respondent was incapacitated for work as a result of an injury and was entitled to compensation under s 19 of the Act. It then turned to the amount of compensation payable. I set out below the relevant paragraphs from the Tribunal's reasoning on the issue of the amount of compensation payable by the applicant to the respondent: "68. In order to apply s19 of the Act in the circumstances of the present case, it is first necessary to determine the meaning of the phrase "suitable employment" (which appears throughout subss (2), (3), (3A) and (4) of that section) in those circumstances. The phrase "suitable employment" is defined exhaustively in s4(1) of the Act (paragraph reference). In the present case, the applicant's employment by the Commonwealth was not terminated by the applicant - instead, it was terminated by the Commonwealth when she was discharged from the RAAF on 17 September 1995 on the ground that she was medically unfit for further service. In those circumstances, para (a) in the statutory definition of "suitable employment" applies and, accordingly, "suitable employment" in the present case means "employment by the Commonwealth ... in work for which the (applicant) is suited having regard to" the matters referred to in subparas (i) - (iv) of para (a). 69. Having determined the meaning of "suitable employment" in the circumstances of this case, it then becomes necessary to construe the composite phrase "able to earn in suitable employment". In Telstra Corporation Ltd v Warner (1994) 20 AAR 259 the Federal Court (Heerey J) distinguished between the phrases "capable of earning ... in suitable employment" and "able to earn in suitable employment" which appear in s 132A of the Act. Heerey J expressed the opinion (at p264) that the former phrase refers to "capacity to work", whereas the latter phrase requires a consideration of the factors specified in s19(4) of the Act and other relevant maters (sic), including the actual availability of "suitable employment" for the person concerned. Clearly, then, the phrase "able to earn in suitable employment" in s19 of the Act is not synonymous with "capacity to earn in suitable employment". 70. As regards the factors specified in s19(4) of the Act (paragraph reference), it is common ground that the factors specified in paras (b), (c) and (d) of that subsection are not applicable on the facts of the present case. That leaves for consideration the question of the applicability of paras (a), (e), (f) and (g) in this case. 71. The considerations referred to in paras (a) - (g) of s19(4) of the Act are only relevant insofar as they assist in the determination of "the amount per week that an employee is able to earn in suitable employment": Comcare v Chenhall (1996) 69 FCR 201 at 206 (emphasis added). In the present case a relevant consideration (under para (g)) is, as referred to in Telstra Corporation Ltd v Warner (paragraph 69 above), the actual availability of "suitable employment" (within the meaning of para (a) of the statutory definition of that phrase - see paragraph 68 above) for the applicant. The Tribunal notes that, in Pulitano v Telstra Corporation Ltd (1998) 50 ALD 1015, the Federal Court of Australia (Emmett J) said (at p1017) that the term "suitable employment" in s 19 of the Act refers to "employment of the nature concerned with the Commonwealth and not simply employment by the Commonwealth alone". Thus, in the present case a relevant consideration is the actual availability to the applicant of clerical work with the Commonwealth for which she is suited having regard to the matters specified in subparas (i)-(iv) of para (a) of the statutory definition of "suitable employment" (see paragraph 49 above). 72. In the present case the evidence is that the applicant's employment with the Commonwealth was terminated by the Commonwealth on 17 September 1995 on the ground that she was medically unfit for further service. At that time the applicant was employed in the RAAF as an accounts clerk and had been employed in a clerical capacity in the RAAF from early 1993. Since the termination of her employment by the Commonwealth no offer of employment has been made to her by the Commonwealth, nor has the opportunity to undertake a rehabilitation or vocational retraining programme been offered to her by the Commonwealth. The Tribunal accepts the applicant's evidence that, upon her discharge from the RAAF she actively sought employment and also registered with the Commonwealth Employment Service and obtained some short-term employment in the private sector in late 1995/early 1996 and then full-time employment as a clerk at a State university from 9 April 1996 to June 1997 (it is common ground that the relevant date is 20 June 1997) when she was made redundant. The Tribunal also accepts the applicant's evidence that, in the period before she was made redundant on 20 June 1997 and thereafter, she actively sought employment until the birth of her first child on 8 January 1998, but without success. The Tribunal also accepts the applicant's evidence that, since her discharge from the RAAF, she has always been willing, and is presently willing, to be employed by the Commonwealth. The Tribunal notes that confirmation of the applicant's willingness to be employed in suitable employment with the Commonwealth was conveyed to the respondent's solicitors by letter dated 9 December 1998 from the applicant's Legal Aid solicitor (Exhibit A3). 73. Having regard to the circumstances and considerations outlined in the preceding paragraph, the Tribunal is prepared to infer that, since the applicant's employment in the RAAF was terminated by the Commonwealth in September 1995, the Commonwealth has been either unable or unwilling to employ her in clerical or other work which would be suitable for her having regard to the matters specified in subparas (i)-(iv) of para (a) of the statutory definition of "suitable employment". The respondent, the Tribunal notes, did not contend otherwise. Accordingly, the Tribunal finds that, since the applicant's discharge from the RAAF on 17 September 1995, "suitable employment" (as statutorily defined) has not in fact been available to her and, therefore, she has not been "able to earn" any amount in "suitable employment" within the meaning, and for the purposes, of subss (2) and (3) of s19 of the Act, since that date. 74. Accordingly, the Tribunal's findings as regards the amount of compensation which the respondent is liable to pay to the applicant in respect of her injuries, pursuant to ss 14(1) and 19 of the Act, are as follows: · 100% of the applicant's "normal weekly earnings", as calculated under s8 of the Act, for each of the first 45 weeks immediately after 17 September 1995, in accordance with s 19(2) of the Act; and · for each week after the end of the above mentioned period of 45 weeks until 20 June 1997 during which the applicant was employed for 100% of her "normal weekly hours" during that week, 100% of her "normal weekly earnings", as calculated under s8 of the Act, in accordance with s19(3)(f) of the Act; and · for each week after 20 June 1997, 75% of the applicant's "normal weekly earnings", as calculated under s8 of the Act, in accordance with s19(3)(a) of the Act."

the appeal 23 In its notice of appeal the applicant suggested that seven questions of law were raised in the appeal. I shall deal with each of them in sequence. I shall refer to the questions and the grounds interchangeably as they were identified by the same lettering.

Question (a) Construction of the definition of "suitable employment" in s 4(1) of the Act 24 The applicant stated this question as being whether the Tribunal misconstrued s 19 and s 4(1) of the Act by construing the phrase [in paragraph (a) of the definition of "suitable employment" in s 4(1) of the Act] "who did not subsequently terminate that employment" as not applying to an employee whose employment was terminated by the Commonwealth.

Applicant's contentions 25 The applicant submitted that that phrase was to be read as if it meant that the employee had remained in Commonwealth employment i.e. that such employment had not been terminated. 26 Paragraph (b) of the definition of "suitable employment" was to apply where an employee's employment with the Commonwealth had terminated. The reference to "self-employment" in that subparagraph, so it was put, was included so that if an employee remained in employment with the Commonwealth, whether able or not to work wholly or partially, no issue of self-employment arose. 27 The applicant relied upon the scheme of s 19(3), which provided an incentive for an employee to obtain greater compensation payments when in employment, as supporting its construction. The applicant submitted that the intention of the legislation should not be frustrated by a construction which excluded from the class of such employees, all those employees whose employment was terminated by the Commonwealth and who had not been offered employment by the Commonwealth. 28 The applicant contended that the effect of the construction adopted by the Tribunal was that such an incentive had no part to play in the context of an employee whose employment had been terminated by the Commonwealth. Such an employee would obtain compensation of 75% per centum of normal weekly earnings (after the initial 45 week period) irrespective of that employee's ability and willingness to work in employment otherwise than with the Commonwealth. There would be no point, so the applicant submitted, in the reference in s 19(4)(g) to "any other matter that Comcare considered relevant" if that employment was to be limited to employment offered by the Commonwealth. 29 Alternatively the applicant submitted that "suitable employment" referred to "employment of the nature concerned with the Commonwealth and not simply by the Commonwealth alone". That is, it was not dependent on continuing employment with the Commonwealth. The applicant relied upon observations which it said were to that effect by Emmett J in Pulitano v Telstra Corporation Ltd (1998) 50 ALD 1015.

my reasoning 30 In my view, the language in paragraph (a) of the definition "suitable employment" is clear and unambiguous. The subject of the verb "terminate" in line 3 of that paragraph is earlier identified as an employee who, on the day on which he or she was injured was a permanent employee of the Commonwealth. Paragraph (a) is to apply to such a person who did not subsequently terminate that employment. 31 Heerey J so found in Comcare v Chenhall (1996) 69 FCR 201 at 205 where his Honour said this: "Mr Chenhall fell within par (a) of that definition [the definition of "suitable employment"] since on the day of injury he was a permanent employee of the Commonwealth who did not subsequently terminate his employment - it was terminated by the Commonwealth." 32 Counsel for the applicant submitted, respectfully, that Heerey J's decision in that regard was "fundamentally wrong". 33 I disagree. I do not think that Heerey J's decision on this point in Chenhall was either fundamentally wrong or clearly wrong. I think his Honour, with respect, was quite right in adopting that construction. 34 I note that Heerey J's judgment was given over five years ago. The definition of "suitable employment" remains unamended. 35 In my opinion, the phrase clearly distinguishes an employee who resigns or retires from employment with the Commonwealth from an employee who did not do so, for example, an employee whose employment was terminated by the Commonwealth. 36 If there were any ambiguity, which I do not think is the case, then any such ambiguity should be resolved in favour of the respondent, as this is beneficial, workers' compensation, legislation: Wilson v Wilson's Tile Works Pty Ltd (1960) 104 CLR 328 at 335. 37 I do not think that the intention of the legislature would be frustrated by such a construction, as the applicant contended. The incentives contemplated by s 19(3) still apply in the case of employees in the situation of the present respondent. The incentive scheme would work if the Commonwealth were to offer such a person employment by it in work for which the employee was suited. In that context, I do not think that there is any incongruity in providing, in s 19(4)(g) that Comcare shall have regard to any other matter that it considers relevant. 38 Mr J Lenczner, counsel for the applicant, suggested that in Telstra Corporation Ltd v Warner (1994) 20 AAR 259, Heerey J had adopted an analysis which did not "correspond with Chenhall". I see no difficulty in reconciling the two decisions. One of the essential findings of fact made by the Tribunal in Warner was that Telecom had not made any offer of employment or retraining or rehabilitation despite the fact that Mr Warner had applied to it on two occasions for work - see p 262. That was an essential part of the factual matrix upon which the Tribunal determined that Mr Warner was not able to earn anything in suitable employment. Heerey J saw no legal error in that part of the Tribunal's approach to the matter. 39 I now turn to the applicant's alternative submission based upon observations by Emmett J in Pulitano. It is necessary to examine the facts in Pulitano in some detail, because on the one hand the applicant claims that Emmett J's observations form part of the ratio decidendi in that case, but on the other hand the respondent contends that his Honour's remarks were obiter dicta. 40 Mr Pulitano sustained a shoulder injury while employed by Telstra Corporation Limited ("Telstra"). The Administrative Appeals Tribunal, in its first decision, found that he had partially recovered to the extent that he was fit to undertake work as a petrol bowser attendant. Telstra offered Mr Pulitano such employment. He carried out that work for four days and then stopped working. He was directed to return to work on two occasions, but did not do so. In its reasons the first Tribunal made reference to the question whether Mr Pulitano had failed to seek suitable employment, terminology used in s 19(4)(e) of the Act. It remitted the matter to Telstra for assessment of compensation. 41 The (Telstra) delegate stated that he or she was satisfied that the applicant had failed to carry out suitable duties offered to him by Telstra and that thus, by reason of s 19(4)(c) Telstra was not liable to make any payments of compensation. 42 The matter found its way back to the Administration Appeals Tribunal which referred to the reasons of the first Tribunal. The second Tribunal stated that the ultimate question which it had to consider was the effect of the previous Tribunal's finding that Mr Pulitano was able to work as a bowser attendant and that that was considered suitable employment. The second Tribunal said that the findings of the first Tribunal clearly indicated that the applicant would be able to earn income with the Commonwealth as a bowser attendant. He had been found by the Tribunal to be capable of working in such a position. 43 Mr Pulitano appealed to this Court from the decision of the second Tribunal. His case was that he was not able to earn income with the Commonwealth as a bowser attendant because his employment had been terminated. 44 Emmett J held that a fair reading of the reasons of the second Tribunal was that it had concluded that the findings of fact made by the first Tribunal were to the effect that the applicant was capable of performing work as a bowser attendant. The second Tribunal had held that that was suitable employment and that the applicant had failed to continue to engage in that employment. It is quite clear from p 1016 and from the penultimate paragraph of p 1017 of his Honour's reasons that he considered that all that the second Tribunal had done was to make a determination in accordance with s 19(4)(c). 45 Accordingly, on the facts in Pulitano, the situation was one where Mr Pulitano had received an offer of suitable employment by Telstra, but (after commencing such employment) had failed to continue to engage in that employment. In that situation s 19(4)(c) entitled the delegate to have regard to the amount per week that Mr Pulitano would have been earning as a petrol bowser attendant if he were engaged in that employment. 46 However, his Honour gave consideration, in the alternative, to what might have been the position if s 19(4)(c) had not been applicable. He said that he would, in those circumstances, have rejected the applicant's contention that once employment had been terminated there was nothing to be deducted in making the calculation under s 19(3)(b). Emmett J then said this (at pp 1016-1017): "However, I consider that the term "suitable employment" where it is used in s 19 is, as Heerey J says (at ALD 29; ALR 384): "… concerned with the amount the employee is able to earn in "suitable employment". Thus the term refers to employment of the nature concerned with the Commonwealth and not simply employment by the Commonwealth alone. However, for the reasons which I have indicated I do not consider that on a fair reading of all of the material, the matter goes beyond a determination of the tribunal in accordance with section 19(4)(c). For those reasons I consider that the appeal should be dismissed." 47 In my view, it is quite clear that the observations of Emmett J which I have set out above were obiter dicta. 48 If, by the paragraph immediately after the quotation from Chenhall, Emmett J was expressing an opinion that the term "suitable employment" in s 19 of the Act referred to employment of the nature concerned with the Commonwealth by an entity other than the Commonwealth, then, with great respect, I would differ from that conclusion for the reasons which I have set out above. 49 However, I do not think that is a fair construction of what Emmett J said in the paragraph concerned. His Honour was referring, in my view, both to employment of the nature concerned and to such employment being "with the Commonwealth" as contrasted with simply "employment by the Commonwealth alone". That is, that the word "alone" does not refer to the possibility of an alternative employer. Such a conclusion is, with respect, perfectly consistent with paragraph (a) of the definition of "suitable employment" which refers to work "for which the employee is suited". It is also consistent with the fact that Emmett J had just expressed agreement with Heerey J in Chenhall. 50 For the foregoing reasons I reject the applicant's alternative argument based upon its construction of what Emmett J said in Pulitano. 51 This ground is not made out. 52 I turn next to Questions (aa) and (b) which can be conveniently considered together.

Question (aa): Whether the Tribunal incorrectly failed to have regard to certain matters. 53 In this ground the applicant contended that the following question of law was raised, namely, whether in determining that the respondent was entitled to compensation in the three periods referred to in its decision, the Tribunal incorrectly failed to have regard to the fact that: · the respondent earned income otherwise than in employment with the Commonwealth in the period following 17 September 1995, and between 3 April 1996 and 20 June 1997; and · the respondent decided not to seek employment from about early 1998.

Question (b): Construction of s 19(3)(f) of the Act 54 This question of law was stated as being - whether the Tribunal misconstrued s 19(3)(f) so that the reference in that section to "suitable employment" should be read as applying to employment with an entity other than the Commonwealth.

Applicant's contentions 55 The applicant referred to the respondent's own evidence that she had worked on various occasions. Her evidence was that she had worked for about four weeks leading up to Christmas 1995 in a card shop, that she had worked for one night at a community centre in early 1996 serving drinks (employment which lasted only one hour because the pain in her legs prevented her from continuing) and that, again in early 1996, she had worked for two days in a cleaning job. She had had to give up that work because of pain in her legs. The respondent had also worked for Curtin University between 3 April 1996 and 20 June 1997. 56 The applicant submitted that s 19(3) and (4) of the Act required Comcare to have regard to actual employment and ability to earn in suitable employment and, particularly in s 19(4)(f), to "relevant matters". The applicant submitted that the Tribunal did not have the "requisite regard". 57 Alternatively [Ground (b)] the applicant submitted that there was an inconsistency in the Tribunal's decision that the respondent was entitled to be paid 100% of her normal weekly earnings during the period when she was employment by Curtin University. 58 The applicant pointed out that, in reaching that decision, the Tribunal had relied on s 19(3)(f) of the Act which was part of the incentive scheme in that section. The incentive was that where an employee, although injured, was prepared to work rather than receive 75% of normal weekly earnings when not employed, he or she could receive up to the full amount of normal weekly earnings. The applicant noted that each of ss 19(3)(a) to (f) refers to "suitable employment". If the Tribunal was right in its construction of that term in paragraph (a) of the definition, it should not have had regard to the respondent's ability to work in employment other than that offered or provided by the Commonwealth i.e. her employment outside the Commonwealth should have been entirely disregarded.

Respondent's contentions 59 The respondent maintained her position that "suitable employment" in the present matter meant employment by the Commonwealth for which she was suited. However, the respondent conceded that this did not mean that actual employment by her should be disregarded. The respondent submitted that it was "quite extraordinary and therefore wrong" that an injured worker who was unfit to be employed by the Commonwealth but was nevertheless able to obtain work, should be entitled to receive not only his or her earnings in such work but also 100% of normal weekly earnings under s 19(3)(f) whilst another worker, who was more severely injured and had no residual capacity or marketability for his or her labour (and was thus unable to obtain any alternative employment) was only entitled to 75% of normal weekly earnings under s 19(3)(a).

my reasoning 60 In my view, as the respondent concedes, it was unlikely to be the intention of the Parliament that a person in the respondent's situation should be entitled to retain the whole of her actual earnings (whether in "suitable employment" or not) and also to receive 100% of her normal weekly earnings. I form that view on the basis that such a conclusion is consistent with the whole history of workers' compensation and that a contrary result would be extraordinary. 61 In my opinion, the Tribunal should have started with s 19(4)(a) which required it to have regard, where the respondent was in employment, to the amount that she was earning in that employment, when determining the amount per week that the respondent was able to earn in "suitable employment". 62 In the absence of any other relevant circumstances [as to which see s 19(4)(g)], it would seem most likely that a decision-maker, in so having regard, would equate those earnings with the amount that the employee would be able to earn in suitable employment. 63 The Tribunal should then have made whatever calculation of compensation, referred to in s 19(3)(b) to (f), was appropriate to the facts as found. 64 The result would be that for the purposes of whichever of paragraphs 19(3)(b) to (f) applied to the facts as found, a figure would be brought into account and, in effect, a deduction made for any amount which the employee actually earned. 65 The Tribunal (see paragraphs [71]-[73]) applied Heerey J's reasoning in Chenhall and held that because "suitable employment" had not in fact been available to her (because the Commonwealth had not made any offer of such employment) she had thus not been "able to earn" any amount in "suitable employment", notwithstanding her short term employment in late 1995/early 1996 and then full-time employment as a clerk at Curtin University from 9 April 1996 to 20 June 1997. 66 It thus becomes necessary for me to express the extent to which I agree and disagree with Heerey J's views on this point in Chenhall. The relevant part of his Honour's reasons starts at p 206. I agree, respectfully, with the views expressed in the third paragraph on that page, in particular, that the amount which an employee is in fact earning in any employment (whether "suitable employment" or not) is only relevant to the extent that it assists in the determination of the amount which the employee is able to earn in "suitable employment". 67 His Honour then considered a hypothetical example (two examples really) of two lawyers, formerly employed in the Australian Government Solicitor's Officer, who were injured and had had their employment terminated by the Commonwealth. 68 I think it must be implicit in Heerey J's analysis of those examples, that the Commonwealth was in each case offering suitable employment to the lawyers in question. [I say this because of his Honour's earlier conclusion (at p 205E) and the fact that both lawyers had had their employment terminated by the Commonwealth.] Accordingly, I do not find the examples to be of any assistance in the disposition of this case. 69 Mr Chenhall had been employed by the Australian Federal Police. His employment had been terminated by the Commonwealth on the ground that he was physically and mentally incapable of performing his duties. Thereafter he was able to obtain employment in the private sector as a security officer and was able to carry out the duties required. That employment was of a casual nature with the hours worked varying from week to week from about 10 hours per week to about 50 hours per week and occasionally in excess of 50 hours per week. The Tribunal found as a fact that Mr Chenhall was unable to be employed by the Commonwealth in work to which he was suited, having regard to his age, experience, training and other skills. It did so on the basis of a determination of the delegate of the Commissioner for Superannuation which prevented such employment by the Commonwealth while it was in effect. 70 I would distinguish Chenhall on that factual basis. 71 However, if that distinction is not a valid one, I would respectfully not follow the reasoning of Heerey J in Chenhall on this particular point. I do so, principally, on the basis that s 19(4)(a) squarely fits the facts of the present case and is to be distinguished from the circumstances referred to in paras (b) to (f) of that subsection. Paragraph (a) simply posits a particular factual circumstance, namely that "… the employee is in employment". Paragraphs (b) to (f) are concerned with situations in which relevantly the Commonwealth has offered the employee work or an employee has failed to seek suitable employment. 72 Furthermore, such a construction has the result that, at least, the respondent's substantial earnings as a clerk in full time employment with Curtin University over a period of some 14 months may properly be brought into account so that it would be improbable that, in the exercise of the discretion of the relevant administrative decision-maker, the respondent would be found to be entitled to receive those earnings and in addition 100% of her normal weekly earnings. I think that that was highly unlikely to have been the intention of the Parliament. 73 In my view, the Tribunal erred in wrongly applying this particular aspect of Chenhall at this point or, (if Chenhall cannot be distinguished in the manner in which I have suggested) was led into legal error by being obliged to follow this aspect of Chenhall. 74 The respondent submitted that, if I came to this conclusion, I could amend the Tribunal's orders by making a deduction of the amounts actually earned by her. Alternatively, the respondent submitted that, if it were appropriate, the matter should be remitted to the applicant's delegate to determine the amounts. 75 In my view, it would not be appropriate for the Court to engage in the process of making a determination under s 19(3) when read with s 19(4). I think that that aspect of the matter should be remitted to the Tribunal. 76 The suggestion, made in the supplementary notice of appeal, that the Tribunal failed to have regard to what the applicant asserted was the fact that the respondent decided not to seek employment commencing about early 1998 and thereafter, can be seen to be without substance when one refers to the last two sentences of paragraph [72] of the Tribunal's reasons (set out at p 9 above).

Question (c): Construction of s 19(2) 77 The respondent contended that the following further question of law was raised - whether the Tribunal misconstrued s 19(2) of the Act or otherwise erred in law in ordering that the respondent receive 100% of the respondent's "normal weekly earnings" as calculated under s 8 of the Act for each of the first 45 weeks immediately after 17 September 1995 when: (i) the respondent had been ill prior to that date; or (ii) there was no evidence enabling the Tribunal to determine whether incapacity for employment commenced on 17 September 1995; or (iii) the evidence was that the respondent had been incapacitated prior to 17 September 1995 and the Tribunal made no inquiry or directed the parties' attention to the issue as to whether she had been incapacitated before that date for the purposes of s 19(2) of the Act.

my reasoning 78 I do not think that this question raises any error of law. 79 On 18 June 1998 the applicant's delegate calculated the respondent's entitlement to weekly payments for the first 45 weeks as starting from 18 September 1995. The review delegate's decision of 9 July 1998 affirmed that determination. 80 It was not part of the applicant's case before the Tribunal that another starting date was appropriate. If the applicant did not accept the review delegate's decision which, in turn, accepted the primary delegate's decision that weekly payments were to be calculated from 18 September 1995, then in my view, it should have raised this matter at the Tribunal. If the issue had been raised, then clearly evidence would have been required on this point. 81 As the point was not raised before the Tribunal, I do not think that the applicant should be allowed to raise it in this application. It is simply too late. Furthermore, the Tribunal should not be found to err in law for failing to make a finding which is first urged in this Court - see Commissioner of Taxation v Raptis (1989) 89 ATC 4994 at 4999. 82 If there was any error on the Tribunal's part, it was an error of fact. The error (if there was one, which I doubt) was simply to accept the applicant's own calculations as being correct. 83 This ground is not made out.

Question (d): Whether the Tribunal failed to provide adequate reasons 84 The applicant contended that the Tribunal had failed to provide adequate reasons so as to disclose its reasoning processes in support of the finding that it preferred the evidence of Drs. Edelman and Nathan to that of Mr Bell on the issue of whether the respondent continued, after she ceased employment, to suffer from bilateral stress shin fractures, and compartment syndrome. 85 The Tribunal expressed its decision to prefer the opinions of Drs Edelman and Nathan to that of Mr Bell at paragraph [57] of its reasons, which reads as follows: "57. As regards the applicant's ailment in both legs, it is clear that that ailment was originally "contributed to in a material degree" by the applicant's employment by the Commonwealth in that the bilateral stress shin fractures and compartment syndrome which produced the pain in her legs were, according to the contemporaneous medical evidence, caused directly by her marching and other heavy physical duties required to be undertaken by her during her recruit training in the RAAF. A more problematic question, however, is whether the applicant's subsequent and ongoing pain in her legs has continued to be "contributed to in a material degree" by her RAAF service. In the opinion of both Dr Edelman, Rheumatologist, and Dr Nathan, a practitioner in sports medicine, the applicant's subsequent and ongoing leg pain is attributable to the bilateral stress shin fractures and compartment syndrome that she suffered by reason of the marching and other heavy physical duties she was required to perform in the course of her RAAF service. Mr Bell, Orthopaedic Surgeon, on the other hand opined that the applicant's ongoing leg pain was not attributable to any physical cause, including the above-mentioned stress fractures or compartment syndrome (the latter condition, in his opinion, never having been suffered by her). Of these conflicting opinions, the Tribunal prefers the opinion of Drs Edelman and Nathan to that of Mr Bell. The Tribunal notes that Dr Edelman examined the applicant in April 1996 and again in January 2000 and Dr Nathan examined her on several occasions between April 1997 and March 1998, whereas Mr Bell examined her on only one occasion in November 1999."

my reasoning 86 As counsel for the respondent submitted, the Tribunal's obligation was to provide sufficient reasons to enable the parties and a reviewing Court to understand the Tribunal's reasoning process and to identify whether any legal error had been made by the Tribunal; see Dornan v Riordan (1990) 24 FCR 564 at 567-571 and the cases there cited. 87 In my view, there is sufficient similarity between the obligations of the Tribunal in relation to the content of its reasons [in s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth)] and s 430 of the Migration Act 1958 (Cth), to make decisions on the latter section relevant in the disposition of this matter - as to which see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30. 88 In its written submissions the applicant suggested that "one possible explanation" for the Tribunal's preference for the views of Drs. Edelman and Nathan was that they had examined the respondent more frequently than had Mr Bell. The applicant submitted that this reason was not one that was relied upon by the Tribunal. 89 I do not accept that submission. The Tribunal's reasons are to be read beneficially. In my opinion, the last sentence of paragraph [57], following as it does the expression of the Tribunal's preference for the opinions of Drs. Edelman and Nathan to that of Mr Bell, can be seen to disclose at least one reason why the Tribunal made that choice. There may have been clearer ways of doing this than by saying "the Tribunal notes …", but in my view, the Tribunal was explaining why it preferred the opinions of Drs. Edelman and Nathan to that of Mr Bell. 90 In my opinion, the Tribunal adequately explained its reasoning processes. It was not bound to give reasons for rejecting evidence contrary to the findings made by it: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at paras [64] to [66]. Furthermore, the choice of one line of medical opinion over another is itself part of the reasoning process rather than a finding of fact. 91 I do not think that this question raises any question of law or identifies any error of law.

Question (e): Whether the Tribunal misconceived the evidence of Dr Shub 92 In paragraph 41 of its reasons the Tribunal said this: "In cross-examination Dr Shub acknowledged that the applicant's current psychological disorder is the result of a combination of factors - namely, her "vulnerable" personality and a range of stressors she experienced in the RAAF including her workload and "interpersonal" issues with senior staff. He also acknowledged that chronic pain in her legs would constitute another stressor. He did not disagree with the proposition that the applicant developed a condition, while serving in the RAAF, which included anxiety and depression and was manifested by complaints of headaches and stomach pains and which resulted from a combination of factors, notedly leg pain, work pressure, poor behaviour by colleagues and her vulnerable personality. He emphasised, however, that he believed that her personality was "a predominant contributory factor". Dr Shub agreed that, although the applicant's psychiatric condition was "quite bad" when she was discharged from the RAAF in September 1995, her condition was now much improved and might be described as "quite mild". As regards her personal functional capacity, Dr Shub was prepared to agree that the applicant, given that she is looking after her 2 children and is studying part-time, would appear to be functioning within the normal range, although he added that he had not actually observed her functioning in those ways."

Applicant's contentions 93 The applicant contended that the Tribunal had misconceived Dr Shub's evidence in finding that in cross-examination he had acknowledged that the respondent's current psychological disorder was a result of a combination of factors, namely her "vulnerable" personality and a range of stressors she experienced in the RAAF, including her workload and "interpersonal issues" with senior staff. 94 The applicant submitted that the essence of Dr Shub's evidence was · that the respondent was predisposed to having a somatoform disorder, by virtue of behaviour patterns, prior to joining the RAAF; · that would have been exacerbated by stress. The somatoform disorder finished when the respondent stopped her activities with the RAAF. 95 Mr Lenczner, counsel for the applicant, submitted that Dr Shub had never acknowledged the contrary position. He said that his client's criticism was not that the Tribunal had rejected Dr Shub's evidence, but that it had misconceived his evidence as amounting to an acknowledgment in cross-examination that the employment played a part in the somatoform disorder. By misconceiving Dr Shub's evidence the Tribunal had, so it was put, committed an error of law: Webb v Repatriation Commission (1998) 51 ALD 575 at 579-581.

my reasoning 96 I have read the relevant passages in the transcript of the cross-examination of Dr Shub before the Tribunal. I do not think that the Tribunal erred in its description, at paragraphs [41] and [58] of its reasons, of Dr Shub's evidence. 97 Even if it did, this did not, in my view, amount to an error of law. I do not think that it could be said that the Tribunal so completely misconceived a critical part of the evidence before it to the extent that its factual findings were not available on the evidence. It can be seen from the manner in which the Tribunal reviewed the evidence of Dr Skerritt and its conclusion in paragraph [55] that the finding that the respondent continued to suffer a mental ailment was supported on two alternative bases, namely Dr Shub's opinion and the opinion of Dr Skerritt. 98 In my view, Webb was a very different case involving the supposed abandonment of an opinion as to the existence of a reasonable hypothesis. The case involved a decision under the Veterans' Entitlements Act 1986 (Cth). As Mr H N H Christie, counsel for the respondent, pointed out, the Tribunal's misconception in Webb that a particular hypothesis had been abandoned was critical (he used the words "extremely relevant") to the case because if the hypothesis had not been abandoned, it could stand on its own without any weighing process. 99 In my view, this question does not raise any error of law.

Question (f): Whether the Tribunal erred in finding that respondent was exposed to work stressors 100 The question of law said to arise here was whether the Tribunal erred in finding that the respondent was exposed to work stressors, namely workload and a poor interpersonal relationship with senior colleagues, by relying on the various medical opinions which assumed those allegations to be correct.

Applicant's contentions 101 The applicant's complaint was that, so it alleged, the Tribunal had made no independent finding of the existence of workplace stressors. The medical opinions were based on histories taken by the medical practitioners. In the absence of an independent finding of the presence of stressors, findings by the medical practitioners were no more than histories and provided no basis for the making of the finding. As Mr Lenczner put it in oral submissions, "Medical practitioners are not there when it happens". 102 The applicant submitted that the Tribunal did not have regard to the issue of what actually happened during the employment of the respondent. Had it done so, so the applicant contended, the Tribunal would have resolved what was said to be the conflict in the evidence of Ms Line about what happened during her employment and two RAAF personnel who had been called by the applicant.

my reasoning 103 In my view, the applicant's approach is to read the Tribunal's reasons too critically. 104 The respondent gave evidence to the Tribunal about the stresses which she encountered during her employment with the RAAF. At paragraph [54] the Tribunal said that it regarded the respondent as a credible witness. The evidence which the respondent gave to the Tribunal and the summaries in the medical reports concerning the stresses which she reported to the medical practitioners were substantially the same. 105 In those circumstances, in my opinion, the Tribunal, as an administrative decision-maker, was entitled to rely on the histories given by the respondent to her medical practitioners. The approach which the Tribunal took was very similar to that taken by the second Tribunal in Telstra Corporation Limited v Arden [1994] FCA 524 and approved of by Burchett J in that case. 106 But the paragraphs about which the applicant complains [paragraphs [58], [59] and possibly, [60]] of the Tribunal's reasons can be seen as amounting to findings on the medical evidence that what happened to the respondent during her RAAF service contributed in a material degree to the two identified ailments. 107 In my opinion, having found the respondent to be a credible witness, the omission on the Tribunal's part to say that it accepted her evidence over the evidence of the two RAAF personnel called by the applicant, did not give rise to error of law. 108 The Tribunal can be seen to have accepted the existence of the work stressors. There was abundant evidence of that fact before the Tribunal in the form of the respondent's evidence. 109 In my view, this ground has not been made out.

costs 110 The applicant raised some seven alleged questions of law. It has been, in my view, substantially unsuccessful on almost all of those points. The only part of the Tribunal's decision which is to be set aside relates to the question whether, in effect, the respondent has to give credit for her earnings during the periods when she was actually employed. The respondent had not claimed otherwise before the Tribunal (as counsel for the applicant acknowledged - see T31-32) and, in written submissions filed on her behalf in this Court, she accepted that the Tribunal should have proceeded on a different basis. The Tribunal took the course which it did, in reliance upon that portion of Heerey J's judgment in Chenhall which I consider does not apply to the facts of this case, or (if Chenhall cannot be distinguished in relation to this point) which I consider, with respect, to be incorrect for the reasons given above. 111 In all the circumstances, I think, provisionally, that the applicant should pay the respondent's costs of the application, but I will allow the parties to file written submissions on that point, should they so wish.

I certify that the preceding one hundred and eleven (111) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.

Solicitor for the Applicant: Messrs Blake Dawson Waldron

Solicitor for the Respondent: Messrs Christie & Strbac

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