Guppy v Australian Postal Corporation

REASONS FOR JUDGMENT 1 Patricia Guppy sustained a work-related shoulder injury whilst an employee of the Australian Postal Corporation (Australia Post). She applied to Australia Post under the Safety Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for compensation in respect of that injury. Australia Post accepted liability for the injury. Materially, it declined to pay compensation in respect of that injury under s 24 and, as a consequence, s 27 of the SRC Act. Section 24 of the SRC Act makes provision for compensation for injuries resulting in permanent impairment. Where an injury has that result, s 27 of the SRC Act provides for compensation for non-economic loss. 2 Australia Post came to make a reviewable decision in respect of the compensation application in which it adhered to the position described. Ms Guppy then sought the review of that decision by the Administrative Appeals Tribunal (Tribunal). On 16 November 2012, for reasons given that day, the Tribunal (constituted by Senior Member McCabe and Dr M Sullivan, Member) decided to affirm the decision under review. Ms Guppy has, in turn, appealed to this court pursuant to s 44 of the Administrative Appeals Tribunal Act 1976 (Cth). Such an appeal lies only on a question of law. The question posed is whether the Tribunal misinterpreted the Comcare Guide to the Assessment of the Degree of Permanent Impairment (2nd ed, 2005) (the Approved Guide) a legislative instrument approved pursuant to s 28(3) of the SRC Act, and thereby failed to determine Ms Guppy's degree of permanent impairment "under the provisions of the Approved Guide", as was required by s 24(5) of the SRC Act? 3 The question was posed at a level of generality which, whilst accurate in that generality, did not reveal the particular error of interpretation said to be found in the Tribunal's decision. In a sense, the grounds provide particulars of the misinterpretation alleged. The particular misinterpretation said to be found in the Tribunal's decision is an alleged misinterpretation of item 9.11 of the Approved Guide. More particularly, it is alleged that the tribunal misinterpreted item 9.11 of the Approved Guide as requiring the upper extremity impairment rating for abnormal motion to be combined with the upper extremity impairment rating for arthroplasty before the combined figure is converted as a whole person impairment figure. To understand the nature of the controversy thus raised, it is necessary, first, to give it statutory context and then to make reference to facts found by the Tribunal in respect of Ms Guppy's injury. 4 A necessary starting point, as is made clear by the High Court in Canute v Comcare (2006) 226 CLR 535 (Canute), is s 14 of the SRC Act. That provides materially: Section 14 - Compensation for injuries. (1) 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. 5 The operation and effect of that part of the SRC Act directed to the provision of compensation for injuries resulting in permanent impairment is discussed by the High Court in Canute at para 11 to para 15 inclusive: 11 Section 24(5) of the Act is expressed in terms of "the degree of permanent impairment of the employee". This expression is said by Comcare to reflect an approach of assessing impairment on a "whole person" basis. However the definition of "impairment" is not expressed in those terms. Section 4(1) provides: "impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function; … permanent means likely to continue indefinitely." The definition of "impairment" (and by extension the concept of "permanent impairment") is expressed in terms of effects on bodily parts, systems and functions. This disaggregated sense of the word is reinforced by the use of the indefinite expression "a permanent impairment" in s 24(1). Textually, the Act assumes that "an injury" may result in more than one "impairment". 12 Content is given to the expression "degree of permanent impairment of the employee" by reference to the Guide to the Assessment of the Degree of Permanent Impairment ("the Guide"), to which s 24(5) refers. The Guide is subordinate legislation which is to be prepared by Comcare and approved by the Minister pursuant to s 28 of the Act. Section 28(1) stipulates that the approved Guide set 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." It is the first edition of the Guide which is relevant to these proceedings, and it is this which is identified in references in what follows to "the Guide". 13 Part A of the Guide is concerned with permanent impairment, and Pt B is concerned with non-economic loss. Part A gives effect to the definition of 'impairment' in s 4(1) of the Act by a structure which compiles descriptions of impairments into groups according to body system and by expressing each impairment as a percentage value of the functional capacity of a normal healthy person. The Guide then contains a "Combined Values Chart" in Table 14.1. This enables each impairment expressed as a percentage to be combined "to give the total effect of all impairments … as a percentage value of the employee's whole bodily system or function". The Guide claims, in this way, to import the notion of "whole person impairment" from the American Medical Association's Guides. 14 However, it is important to remember that recourse to the criteria and methodologies set out in the Guide is only necessary once the key statutory criterion of the occurrence of "an injury" (which resulted in at least one permanent impairment) has been fulfilled. The Guide is to be approached through the prism of each "injury". The terms of s 24(5) are quite clear; Comcare is to assess the degree of permanent impairment of the employee "resulting from an injury". Similarly, in s 24(7), the threshold permanent impairment of the employee of 10 per cent affects the amount of compensation payable "under this section"; that is, "in respect of the injury" (s 24(1)). 15 The scheme of the Act proceeds in this way from the occurrence of "an injury", in the defined sense. As previously remarked, the Act assumes that more than one "injury" may occur. Therefore it is not correct to say that s 24(5) imports a "whole person" approach to the determination of the degree of permanent impairment. That ignores the centrality of "an injury" to the scheme upon which Comcare's liability to compensate depends. 6 Canute was decided by reference to the first edition of the Approved Guide. The provisions of the Act remain materially the same even though that first edition has been replaced by a second edition of the Approved Guide. It is the second edition which was in force in relation to Ms Guppy's compensation application and injury. The observation made by the High Court at para 15 that: … it is not correct to say that s 24(5) imports a "whole person" approach to the determination of the degree or permanent impairment remains true in respect of the second edition of the Approved Guide. Then, as now, it is "an injury" which is central to the scheme "upon which Comcare's liability to compensate depends". 7 It was common ground before the Tribunal, and the Tribunal found, that: (a) Ms Guppy had undergone a right shoulder arthroplasty for the purposes of table 9.1(1) of the Approved Guide; (b) Ms Guppy's upper extremity impairment arising from her right shoulder arthroplasty is 10% with reference to table 16.2(7) of the fifth edition of the American Medical Association's Guide to the Evaluation of Permanent Impairment (AMA Guide); (c) Ms Guppy's upper extremity impairment arising from loss of right shoulder motion is 6% with reference to the AMA Guide. 8 It will be necessary shortly to explain exactly how it is that the AMA Guide came to be used for the purpose of assessing upper extremity impairment in the way just mentioned. For the moment, it is sufficient to note that there is no reference to the AMA Guide at all in the SRC Act. It is necessary to look to the Approved Guide for reference to the AMA Guide. One finds there, at page 12, item 5, a declaration that: Part 1, Division 1 of this Guide is based on the concept of whole person impairment, which is drawn from the Australian Medical Association Guides. 9 The Tribunal was persuaded that an approach adopted by Australia Post in deciding that Ms Guppy was not entitled to permanent impairment and consequential non-economic loss compensation was correct. That approach was to combine the two upper impairment extremity figures - 10% in respect of arthroplasty, and 6% in respect of abnormal motion - before a conversion to a whole person impairment figure. The end result of so doing, if one utilises the combined values chart in the AMA Guide, is to derive as a degree of permanent impairment for Ms Guppy a percentage of 9%. 10 If correct that, in turn, would mean, having regard to s 24(7)(b) of the SRC Act, that permanent impairment compensation was not payable to Ms Guppy, and that, consequentially, compensation for non-economic loss under s 27 was not payable to her. 11 Australia Post drew attention to the following passage at item 12 on page 14 of the Approved Guide, which it said dictated that, in the circumstances of the present injury and the arthroplasty undertaken in respect of that injury, it was to the AMA Guide that one looked for the determination of the degree of permanent impairment: 12. Exceptions to use of Part 1 of this guide. In the event that an employee's impairment is of a kind that cannot be assessed in accordance with the provisions of Part 1 of this Guide, the assessment is to be made under the edition of the Australian Medical Association Guides. 12 Support for the approach adopted by Australia Post and, for that matter, by the Tribunal, was said on behalf of Australia Post to be found in Whiteman v Australian Postal Corporation (2011) 199 FCR 433 (Foster J) (Whiteman's case). It will be necessary to consider in a little detail whether or not that submission in respect of Whiteman is correct. There is no doubt, having regard to para 12 in particular of the Tribunal's reasons, that the Tribunal regarded Whiteman's case as supporting both its and Australia Post's approach to the determination of compensation in this case. 13 Before turning in further detail to the Approved Guide, it is instructive to recall observations made in respect of the first edition of that guide, and the approach to the construction of such legislative instruments, by the Full Court in Whittaker v Comcare (1998) 86 FCR 532 (Whittaker). In that case at p 538, the Full Court made reference to, repeated judicial criticisms of particular ambiguities found in the first edition. If the present case stands for nothing else, it most certainly stands the proposition that the second edition of the Approved Guide is not devoid of ambiguity. Also, in Whittaker at p 543, the Court, in summarising the principles to be followed in respect of legislative instruments, observed: It was said in Scott v Moses (1957) 75 WN(NSW) 101 at 102 that, whatever the difficulties of construction may be, a court is bound to give some meaning to a provision in a statute "and upon no proper principles could a court ever hold that an Act of the legislature was to be regarded as a nullity because of the uncertainty of the language used". Bennion, in Statutory Interpretation (3rd ed, 1997), p 352, goes so far as to say that, when confronted with an obscure provision, "the judge is nevertheless compelled to find a meaning (which in some cases amounts to saying that the judge must virtually invent one)". The general rule is that the same approach is taken to the interpretation of a delegated statutory instrument as it is to interpreting the statute itself (although uncertainty of expression is a ground, not argued here, on which delegated legislation may be held invalid as beyond the statutory power that authorises its making: see King Gee Clothing Co Pty Ltd v Commonwealth (1945) 71 CLR 184 at 195-196). The court can call in aid wide powers when it has to try to give effect to confused statutory language. If a court concludes that the literal meaning of a provision does not conform to the legislative purpose, the court can give effect to that purpose by addition to, omission from, or clarification of the particular provision: Saraswati v The Queen (1991) 172 CLR 1 at 22. There is no reason to doubt that the court has the same powers at its disposal when it is confronted with the task of giving effect to confused statutory language. But there are limits to the court's interpretative powers: cf Mills v Meeking (1990) 169 CLR 214, where, speaking of an injunction to the court contained in a provision similar to that in s 15AA the Acts Interpretation Act 1901 (Cth), to give effect, in construing it to the purpose of the statute, Dawson J said (at 235) that such a provision: "requires a court to construe an Act, not to rewrite it, in the light of its purposes": see also McHugh J (at 243-244). Despite the statement in Bennion, a court, in our opinion, can only be justified in using the more radical techniques of interpolation, excision and rewriting, if it can identify the intent or purpose of the statutory provision. The object of all interpretation is to discover that presumed intent (or purpose): see Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319 at 321-322 and 345-346; Mills v Meeking at 233-234. It is an intent to be gathered from the language used, in its context and with the aid of those materials to which the court can properly have recourse in seeking that intent. However, if it is not possible for the court to be confident of the intent of the author, it is not, we think, open to the court to invent, under the guise of interpretation, its own version of how it thinks the text might read. That is, in the present context, it is not open to this Court to devise a text of its own in place of the garbled original that reflects how the court may think Comcare could have performed the duty cast on it by s 28(1) of the Act. This is plainly so where the court has to construe a Guide to the assessment of injury-caused impairment which deals with matters of some technical complexity, a complexity masked by the apparent simplicity of s 9 of the Comcare Guide, but obvious, when regard is had to the corresponding provisions of the current DVA Guide and the AMA Guides. 14 Yet further in Whittaker, and by reference to Comcare v Ticsay (1992) 38 FCR 181 at 188 (Ticsay), the Full Court at page 544 cited with approval an approach to the construction of socially remedial legislation intended to benefit workers whereby, in case of ambiguity, the approach which benefits the worker is to be preferred was set out. It was common ground between the parties to the present appeal that that approach to statutory construction in respect of the resolution of any ambiguity in workers compensation legislation remained good law. One must of course, in light of what was later said by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, give primacy to, and commence with the text of the legislation, or legislative instrument concerned. Purpose though, is always relevant when interpreting text. In light of that, it seems to me that the position of the parties, with respect to the enduring relevance of the approach to construction set out in Ticsay is correct; an approach which furthers a purpose of benefitting a worker in case of ambiguity is the approach to be preferred. 15 To return then to the text of the Approved Guide, it is necessary to set out first, the direction given at para 9.11 on page 97, where it is provided materially: Where an arthroplasty procedure has been undertaken, refer to the edition of the AMA Guides current at the date of assessment. Combine the total WPI rating for abnormal notion with the relevant WPI rating for arthroplasty obtained from the AMA Guides. 16 As is made clear by the glossary in the Approved Guides, page 16, "WPI" is a reference to whole person impairment. That definition, incidentally, offers further support, if that were needed, for the proposition advanced on behalf of Australia Post that WPI is based on the AMA Guide. 17 The use by the author of bold for the "combined" in the passage quoted from item 9.11 is no coincidence. At page 13, item 9, it is stated materially: 9. Combined values Impairment is system or function based. A single injury may give rise to multiple losses of function and, therefore, multiple impairments. When more than one table applies in respect of that injury, separate scores should be allocated to each functional impairment. To obtain the whole person impairment in respect of that injury, those scores are then combined, using the Combined Values Chart (see Part 1, Appendix 1), unless the notes in the relevant section specifically stipulate that the scores are to be added (for instance, see 9.8.1 at page 87). [emphasis in original] And a little later: It is important to note that whenever the notes in the relevant section refer to combined and ratings, the Combined Values Chart must be used, even if no reference is made to the use of that Chart. [emphasis in original] 18 Uninformed by authority, I should readily have accepted the applicant's submission that the bolding of "combined" at item 11 on page 97 of the Approved Guides, even though there was no reference to the combined values chart, nonetheless required combination by reference to that chart, having regard to the statement at item 9 on page 13 of the Approved Guide. 19 If one, as the applicant submitted one should, takes WPI ratings, as opposed to upper extremity impairment ratings derived from the AMA Guide, and then looks to what is the resultant whole person impairment, by reference to the combined values chart in the Approved Guide, the result is that Ms Guppy has a whole person impairment of 10%. That is because, if one converts, using the AMA Guide, her upper extremity impairments to whole person using table 16-3 on page 439 of the guide, one derives in respect of the arthroplasty a WPI of four, and in respect of abnormal motion, a WPI of six. Combining the two yields the whole person impairment of 10%, expressed as a percentage using the Approved Guide's chart. 20 The end result of that percentage of degree of permanent impairment is that Ms Guppy would be entitled to permanent impairment compensation. 21 The Tribunal did not calculate what might be her compensation in respect of non-economic loss under s 27 because of the conclusion reached in respect of whether she was eligible for permanent impairment compensation. The result of that acceptance of the applicant's submission would necessarily therefore be a remission of the matter to the Tribunal for hearing and determination according to law. 22 What, then, further of Whiteman's case? First, it must be said that the question posed in the present appeal did not arise for determination in Whiteman's case. Rather, the question for the Court's resolution in Whiteman's case was a different one namely, whether or not the case to which item 9.11 on page 97 of the Approved Guide was applicable, because an arthroplasty procedure had been undertaken, it was permissible, as was contended on behalf of the applicant worker in that case, to use the Approved Guide for the purpose of calculating WPI for abnormal motion, and the AMA Guide only for the purpose of calculating the WPI for arthroplasty? The Court decided that this was not permissible and that, instead, it was necessary for the WPI in respect of each subject to be calculated by reference to the AMA Guide on the true construction of item 9.11 at page 97. With that conclusion, I respectfully agree. 23 In expressing that conclusion, there are passages which, if read uncritically and without an appreciation of what fell for resolution in that case, might well be thought to support the position for which Australia Post contended in the present appeal. Thus, one sees, at para 50, the following: 50 It is clear that the Comcare guide does not provide a method of calculation which is pertinent when a person has undergone an arthroplasty procedure. It is also clear that the Combined Values Charts that are to be employed in both the Comcare guide and the AMA guide are identical. Therefore, it does not matter to which of those published versions of that Chart resort is had for the purpose of combining the two ratings described in the relevant paragraph of Item 9.11 of the Comcare guide. In the end, the critical question is: Which of the two guides is to be used to calculate the total WPI rating for abnormal motion in the shoulder? It is true that the Comcare guide could be used for that purpose. Tables 9.11.1a, 9.11.1b and 9.11.1c permit such an exercise to be carried out. However, the exercise may also be carried out by using the AMA guide. 24 Further, at para 55 to para 57, his Honour stated: 55 The AMA guide is, in a sense, the progenitor of the Comcare guide. There is nothing inconsistent with the scope and purpose of the Comcare guide for instructions to be given to a medical assessor to go back to the AMA guide where the Comcare guide does not cover the matter. Once that instruction is given, as it is in the fifth paragraph of Item 9.11 (p 97), it makes perfect sense to use the AMA guide to carry out the entire assessment including for the purpose of calculating the total WPI rating for abnormal motion. To use a single source for rating purposes leads to consistency when the two WPI ratings are combined, as directed. There appears to me to be no good reason for using two separate sources and then combining the ratings derived from those sources. 56 There is no warrant for calculating that rating by reference to Tables 9.11.1a, 9.11.1b and 9.11.1c in the Comcare guide, using the AMA guide to calculate the relevant WPI rating for arthroplasty and then using the Combined Values Chart to combine the two. 57 In any event, as a matter of ordinary English, the words "… obtained from the American Medical Association's Guides" in the last line of the fifth paragraph of Item 9.11 (p 97) qualify the whole of the first part of the sentence. That being so, it is to the AMA guide that reference must be had in order to calculate both WPI ratings referred to. This interpretation is reinforced by the first sentence of that paragraph. That sentence means: If you are dealing with a claimant who has undergone an arthroplasty procedure, pick up the AMA guide and use that guide to calculate all relevant WPI ratings. 25 It was not necessary, for the purpose of deciding Whiteman's case, to express any view at all as to the import of the bolding of the word "combine" at item 9.11 in the passage quoted. And, notably, Foster J nowhere sought so to do. 26 I respectfully agree with his Honour's observation at para 55 that "the AMA guide is, in a sense, the progenitor of the Comcare guide". Neither too little, nor, more pertinently, too much should be made of this, in my view. What falls for construction is, in the first instance, the SRC Act, and then, assuming the same is not inconsistent with the Act, the Approved Guide. 27 His Honour's further observation at para 57, that "as a matter of ordinary English, the words 'obtain from the AMA Guides'" in the passage quoted by me from item 9.11 "qualify the whole of the first part of the sentence" must be understood in the context of the dispute which fell for resolution by his Honour. What follows after the comma which appears in the passage concerned at item 9.11, "obtained from the AMA Guides", qualifies the two WPI ratings mentioned. It has nothing at all to say about the emboldened "combine". To the extent that, on a particular reading, the passages which I have mentioned in Whiteman's case might be thought to suggest otherwise, I respectfully disagree. In so doing, I am fully conscious of a need not lightly to depart from the decision of another judge given in the Court's original jurisdiction. As I have said, however, it is important to read Whiteman's case in light of the issue which fell for determination. Truly, his Honour did not have to consider the import of the bold "combine" in the context in which it appears. 28 On behalf of the applicant, and contrary to the submission made on behalf on Australia Post, it was submitted that, on analysis, this was not a case, in any event where the exception mentioned at item 12 on page 14 in the passage quoted above, was applicable. 29 I agree this is just not a case where the: impairment is of a kind that cannot be assessed in accordance with the provisions of part 1 of [the approved guide]. 30 It is perfectly and rationally possible to assess compensation by reference to item 9.11 by the use of two WPI ratings derived from the AMA Guide combined by reference to the combined values chart in the Approved Guide. Indeed, that is just what is stated in item 9.11 in the passage quoted. It is, as was correctly submitted on behalf of the applicant, a notable feature of the Approved Guide that it uses whole person impairment percentages and envisages situations in which WPI percentages will, in turn, be used so as to derive, by reference to the combined values chart, a final whole person impairment. 31 It is completely congruous with that position that WPI ratings, derived, doubtless for good reason in the case of arthroplasty, by reference to the AMA Guide, are then used in combination and in accordance with an assessment made by reference to the combined values chart in the Approved Guide, finally to derive a whole person impairment in respect of a particular injury. It is a notable feature of the method adopted both by Australia Post and the Tribunal that this congruity is not present. Indeed, the method adopted is defiant of the very language in item 9.11 in the passage quoted, in that it is not a WPI rating for abnormal motion or a relevant WPI rating for arthroplasty obtained from the AMA Guide which is combined. 32 For these reasons, the appeal must be allowed. 33 There was some debate before me as to consequential orders which should be made as a result of the allowing of the appeal. For Australia Post, it was submitted that the matter ought to be remitted directly to it so that a delegate might consider how much non-economic loss compensation, if any, should be paid pursuant to s 27. Australia Post also submitted that it was both within power and appropriate for me to make an order in respect of the costs in the Tribunal to date. It is true that s 44(4) is cast in the very wide terms as to the power of the Court in respect of the hearing and determination of an appeal: "may make such order as it thinks appropriate by reason of its decision". 34 Upon reflection, and this, in turn, takes up the submission of the applicant as to orders, I do not consider that, at least in this case, I should remit the matter directly to Australia Post or, for that matter, make an order in respect of costs in the Tribunal. That is because the role of the Tribunal, as set out in s 43, is to review the decision. Further, s 64(1) of the SRC Act confers on the Tribunal a jurisdiction to "review" a "reviewable decision". The reviewable decision was one responsive to the compensation application made. It so happened that the application was refused because of a view reached in relation to one aspect of that claim, which in turn governed another aspect. It is not the role of the Tribunal, though, to review aspects of a decision but the decision itself. The Tribunal has yet to do that. In those circumstances, I consider that the appropriate order is to remit the matter to the Tribunal so that it may exercise its review jurisdiction according to law. 35 As to costs, it may be that it is possible, having regard to s 44(4), to make an order in respect of costs to date in the Tribunal. However, the view I take of the expression, "liable to reimburse the claimant for costs reasonably incurred by the claimant in connection with that proceeding" in s 67(2), is that this is wide enough to embrace both the initial phrase, as it has proved, of the review proceeding in the Tribunal, together with the further conduct of that proceeding, which must be a necessary result of the remittal order. Costs in the Tribunal are better assessed, in any event, by an officer in the registry of that Tribunal, who is familiar with amounts usually allowed in proceedings in the Tribunal, rather than by an officer in the registry of this Court, who would not have the same degree of familiarity. 36 The orders, then, are as follows: 1. The appeal is allowed. 2. The decision of the Administrative Appeals Tribunal dated 16 November 2012 is set aside; 3. The matter is remitted to the Administrative Appeals Tribunal for further hearing and determination according to law; 4. The respondent is to pay the applicant's costs of and incidental to the appeal, to be taxed if not agreed. 37 I record my appreciation in respect of the submissions made on behalf of each of the parties to the appeal. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.