Secretary of the Department of Defence as a Delegate of Comcare v Campbell

REASONS FOR JUDGMENT 1 The Secretary of the Department of Defence, acting as a delegate of Comcare, appeals from a decision of the general administrative division of the Administrative Appeals Tribunal, given on 14 May 1999 reversing a decision of Comcare that further compensation was not payable to the respondent, Ian Robert Campbell, in respect of injuries involving both his knees said to have occurred in the course of his employment in the Army on 17 July 1984. The facts of the matter are adequately set out in the reasons for decision of the Tribunal and there is no point in detailing them again. There has been no dispute raised in relation to those findings nor a suggestion that the Tribunal has made some error in its enunciation of the facts. In brief, what actually happened was that Mr Campbell first injured his right knee at work. The resulting disability then caused him to put extra weight on the left knee and as a consequence he developed similar symptoms in the left knee to those he already had in the right knee. In setting aside the decision under review, the Tribunal substituted its own findings which are set out in paragraphs 2(a) to 2(e) of its decision. They need no repetition here. 2 The Secretary has raised three matters in the decision of the Tribunal which are said to manifest areas of law. The first is that in making its decision the Tribunal misinterpreted table 9.5 of what is called the "Guide to the Assessment of the Degree of Permanent Impairment" which receives statutory force by reason of section 24 (5) of the Safety Rehabilitation and Compensation Act 1988 (the Act) with effect on and from 1 December that year. That subsection provides that Comcare is to determine the degree of permanent impairment of an employee resulting from a compensable injury under the provisions of the guide. "Impairment" is defined in section 4 of the Act as "the loss, the loss of the use, or the damage or malfunction, of any part of the body…" and some other matters not now relevant. "Injury" is defined as, inter alia, "an injury suffered by an employee arising out of, or in the course of, the employee's employment or an aggravation thereof". These are traditional definitions that have appeared in compensation legislation for many decades. Following those definitions and using the guide, the Tribunal determined the disability in respect of each separate leg under table 9.5 as 20 per cent. Then, by applying table 14.1, which provides for whole body assessment where there are two or more impairments, it assessed Mr Campbell's total impairment as 36 per cent. 3 The Secretary said that table 9.5 required, not an assessment of impairment in respect of both of Mr Campbell's limbs, as the Tribunal made, but a sort of generic assessment of the effect of the two leg disability on what is called in the table the "whole person impairment". In other words, the Secretary argued that there should only have been one assessment and not two, saying that the Tribunal's use of table 14.1 represented a fundamental misunderstanding of the operation of the guide. 4 I reject the submission. In my opinion, the guide is, as has been held in other cases, not intended to be a rod for the purpose of imposing limitations and restrictions on injured persons who come within its framework, but a means of facilitating the calculation of their disability and therefore the compensation to which they become entitled by the various factual findings of the Tribunal. When it speaks of "injury" and "permanent impairment", the Act clearly has in mind the separate injuries to and disabilities from the separate injured limbs and not some meshing of the effects of separate injuries and separate disabilities and impairments. Were that not the case and the case was dealing with an injured leg and an injured arm, the person would not on the Secretary's argument be entitled to compensation calculated by reference to the disability flowing from each of the injuries but a quite arbitrary assessment of the effect of the two injuries on the whole person impairment through conclusions about one of them. In my view, the Tribunal manifested no error in its finding that Mr Campbell had suffered injuries to both limbs, that he was entitled to an assessment in respect of both of them, and that the overall assessment of disability under table 14.1 was what the legislation required. 5 The second error in the Tribunal's determination suggested by the Secretary was in its finding of deterioration in Mr Campbell's condition since the coming into effect of the 1988 legislation. The decision of the Tribunal in this regard, as opposed to its reasons, is instructive. The Tribunal determined that Mr Campbell had suffered a loss of the use of each leg at and above the knee of 17 per cent prior to 1 December 1988. It determined that following 1 December 1988, Mr Campbell had suffered either a new permanent impairment as a result of traumatically‑induced osteoarthritis in both knees or, alternatively, an injury‑generated deterioration of a pre-existing osteoarthritis. As a consequence, the Tribunal decided that Mr Campbell had suffered an increase in his whole person impairment of 12 per cent since 1 December 1988. Taking the current disability as 36 per cent from table 14.1, as previously explained, it thus assessed the December 1988 impairment as 24 per cent, and found that he was entitled to further compensation for this new or additional permanent impairment. 6 The Secretary argued that this was a fallacious method of calculation stating that the Tribunal made a finding not permitted by the guide. Once again it is my belief that the question at issue is to be determined by looking at the statute not the guide. The guide is merely a mechanism, as it says itself, for the assessment of the degree of permanent impairment. 7 The Tribunal dealt with this matter in what I regard as being quite clear terms in paragraphs 77 and 78 of its reasons for determination. Having found as a fact that the Secretary currently has a 36 per cent whole person impairment, and by finding that this was a 50 per cent increase on what had existed in 1988, the Tribunal said, working backwards, that as at 1 December 1988, the Secretary had a 24 per cent whole permanent impairment. The Secretary contended that because there is nothing in the guide, either in table 9.5 or anywhere else, calling for or permitting any 24 per cent assessment of whole person impairment - table 9.5 provides for 20 per cent and 30 per cent - the Tribunal must have made an error because it has made up its own figure. The submission was that this error came about because the Tribunal found that Mr Campbell's condition was 50 per cent worse now than it was on 1 December 1988. According to the Secretary, what the Tribunal had to do was to make an ex post facto abstract assessment, in accordance with the strict words of the guide, of what the impairment was or would have been on 1 December 1988 and then work forward from there. 8 In my view, this argument is purely semantic. If the Tribunal had found the disability on 1 December 1988 to be 24 per cent, it could not have been criticised, at least on the ground that it worked backwards. It is inconceivable that the same result could then be justified but not because the reasoning was expressed the other way round. Obviously if the 24 per cent, achieved by working backwards, had seemed to the Tribunal to be absurd or just plain wrong, it would never have made the findings it did. Moreover, if a tribunal of fact concludes as a fact from the evidence that a disability is properly assessed at 24 per cent - and I did not hear the Secretary suggest at this hearing that this assessment was factually wrong or unsupported by the evidence - I see nothing in the guide to suggest that it must falsify its finding either by increasing it to 30 per cent or decreasing it to 20 per cent. If this view be wrong, the ultimate result in this case would then be unclear. As it may result in even more compensation for Mr Campbell, it is almost inconceivable that the Secretary could seriously be seeking a fresh assessment by the Tribunal in this case on this ground. I say nothing about the comparison between the amount of compensation, and the costs and court time, involved in this litigation in that event. 9 In my view, the statute imposes no requirement of the kind contended for by the Secretary. In paragraph 77 of the Tribunal's reasons there is an analysis of how it came to the 50 per cent increase by examining the views of Doctors Marnie and Bornstein who gave evidence to the Tribunal. There was a suggestion by the Secretary in his submissions, though not in the actual notice of appeal, that the Tribunal misinterpreted Dr Bornstein's evidence. I agree that the matter is open to a little doubt but taking the matter in context and reading Dr Bornstein's evidence as a whole, I think that any confusion arose because the Tribunal accepted part and rejected part of the doctor's evidence. It rejected the view that the employment injury had had no effect on the osteoarthritis at all, while accepting that the injuries had been sustained and were continuing to cause symptoms and disability. The Tribunal's finding that the injuries either caused the osteoarthritic condition to occur or caused a pre-existing condition to deteriorate is inconsistent with part of Dr Bornstein's evidence but not all of it. 10 A tribunal of fact is entitled to choose which evidence it accepts and which it rejects. In my opinion, this Tribunal was entitled to conclude on the evidence at least, as it clearly did, that there had been an aggravation of a pre-existing condition of osteoarthritis, or, as it put it, there had been a new or additional permanent impairment of osteoarthritis that came about after 1 December 1988. This attack by the Secretary really was, in substance, that the Tribunal failed to make clear in its reasons what it had done. But it has long been held that Tribunal reasons are not to be examined with such microscopic intensity. It is perfectly clear to me what the Tribunal found and that its finding accords with its legal entitlements and obligations. 11 This alleged failure to give reasons on the osteoarthritis findings was in fact the third matter raised in the appeal. I have read and re-read the reasons of the Tribunal in relation to the osteoarthritic situation. Everyone who has ever heard or participated in any compensation case at any time has heard different medical opinions about whether osteoarthritis in joints is congenital or traumatically‑induced and, if congenital, whether it has been aggravated by compensable injury. It is not necessary in a judgment of this kind by a busy hard-pressed Tribunal to trace through in express detail why and how these various viewpoints are put forward and why one should be adopted and another rejected. A certain amount of leeway has to be given in this regard in relation to matters of such notoriety. In this particular case the Tribunal has clearly accepted compensability in one of two ways: either the osteoarthritis came about as a consequence of the original employment injury or it was pre-existing and was aggravated by the injury. In either case, provided there was a more than 10 per cent change in disability after 1 December 1988, Mr Campbell was entitled to the compensation which he was seeking. It was not necessary for the Tribunal to go into any further detail in order to explain why it came to that conclusion. From its reasoning it is quite clear what decision the Tribunal made and why it made it. It is also clear what evidence it did and did not accept. That is all that the authorities have ever required tribunals of fact to set out.