Workers Compensation - Assessment and amount of compensation - Lump sum payments for specific injuries - Amount awarded - Assessment generally - Method of calculation in the case of proportionate loss of use of a member - Workers Compensation Act 1988, s71.

Dickens v The Friends' School No 40/1981, Turner v Australian Pulp and Paper Mills No 1/1986 not applicable to assessment pursuant to the Act, s71(2)(b).

Solicitors for 2d respondent: Wallace Wilkinson and Webster

UNDERWOOD J For approximately thirty years, the first respondent worked for the second respondent as a waitress, cleaner and general kitchen hand in his Chinese restaurant at North Hobart. The second respondent employed another person to help the first respondent, but the former became sick and left about 17 June 1992. She was not replaced and thereafter the first respondent had to manage all the work on her own.

2. Some time during 1992, the first respondent experienced a jabbing pain in her right elbow. There were some differences in the evidence as to when in 1992 this occurred. The first respondent said it was about the end of July, approximately five weeks after her fellow employee left. However, medical evidence was given that on 18 May 1992 the first respondent consulted her general practitioner Dr Begbie, about another matter and at that time, complained of pains in her elbow. This factual difference was not resolved by any express finding of the learned Commissioner. His written reasons simply recite the evidence given by the first respondent and her general practitioner without expressing any preference for one over the other, although the medical evidence came from written contemporaneous records and is more likely to have been correct.

3. At all events, it appears to have been common ground that although the first respondent may have suffered from stabbing pains in her elbow in May 1992 she did not then stop working. The condition gradually worsened. A diagnosis of medial and lateral epicondylitis was made. It was not disputed before the learned Commissioner that this injury was a disease that arose out of and in the course of the first respondent's employment with the second respondent and to which that employment contributed to a substantial degree.

4. On 13 May 1992 Dr Begbie gave the first respondent an injection of steroids to the right lateral epicondylitis. His evidence was that on 29 May 1992 he noted some improvement in the condition. On 23 July 1992, the first respondent was given some acupuncture for her right lateral epicondylitis. On 30 July 1992 the first respondent reported to Dr Begbie that her arm "was not much better" and she received further acupuncture. The first respondent's evidence was to the effect that during the time that she was consulting Dr Begbie, her right elbow became more and more painful and although she remained at work she found it increasingly difficult to manage. During the two weeks before a consultation with Dr Begbie on 13 August 1992, the first respondent's husband had to help her with her work in the restaurant as well as with a lot of the household chores. On 13 August 1992 the first respondent took time off work and Dr Begbie certified that she was then incapacitated by reason of the condition in her elbow. The first respondent was paid workers compensation. Unfortunately, the condition continued to worsen. It was not disputed that she ultimately suffered a proportionate loss of the use of her right arm within the meaning of the Workers Compensation Act 1988, s71(2)(b).

5. On 13 September 1993 the first respondent made an application to the learned Commissioner to "hear and determine" the following:

"Redemption of my weekly payments under Section 89 the

Act (sic) and my claim for Payment for a Permanent

incapacity under section 71 of the Act."

6. The claim for redemption of weekly payments was adjourned sine die and is not relevant to this appeal.

7. There was no dispute that the first respondent was entitled to a payment for the proportionate loss of the use of an arm, and although there was no agreement about the percentage of that loss, the real dispute was about who was ultimately going to make that payment. Prior to 30 June 1992 the third respondent, Mercantile Mutual Insurance was the second respondent's insurer. On 1 July 1992 the appellant TGIO Limited, became the second respondent's insurer. There was a dispute between the insurers as to whether the injury was suffered before or after 1 July 1992. The learned Commissioner had no jurisdiction to determine this dispute (FAI General Insurance Co Ltd v MMI-CMI Insurance Ltd and Ors Zeeman J No 14/1992) but in order to calculate the first respondent's entitlement to a lump sum payment the learned Commissioner was required (inter alia) to ascertain when the first respondent suffered the compensable injury within the meaning of s71(1). As this injury was a disease, the learned Commissioner had to resort to the Act, s3(5)(a) which provides:

"(5) For the purposes of this Act, where a worker

suffers an injury that is a disease, that injury shall

be deemed to have occurred

(a) on the day on which the worker became totally or

partially incapacitated by reason of that injury; or"

8. See Pasminco Metals - EZ v Kaitinis FCA31/1993, Wright J at 4-5.

9. The learned Commissioner found that the first respondent first became partially incapacitated by reason of her epicondylitis when she brought her husband in to help her at work viz, 31 July 1992. This is a finding of fact. The learned Commissioner then found that the first respondent had lost 60 per cent of the use of her arm and fixed the lump sum at $28,692.93. The unit used to make that calculation was $320.95. By virtue of the Act s65, that sum was current from 1 January 1992 to 31 December 1992. The learned Commissioner made the following order:

"1 That the employer pay the worker $28,692.93 within

28 days.

2 That the worker's application under Section 89 is

adjourned sine die."

10. This appeal is brought by TGIO Limited. It assumed risk after 1 July 1992. The complaint is twofold viz, there was an error of law in the "determination" that the first respondent did not suffer the injury until 31 July 1992 and an error of law in the "determination" that sixty per cent was the appropriate assessment of the proportionate loss of use of the arm. The notice of appeal identifies the following "determinations, orders, rulings or directions", against which the appeal is brought:

"1 That the injury suffered by the worker, Virginia

Dianne Viney, arising out of and in the course of her

employment with her employer, P K Fong, should be

deemed to have occurred on 31 July 1992;

2 That the worker suffered by reason of her injury a

proportionate loss of use of her right arm of 60%; and

3 That the employer pay to the worker $28,692.93

pursuant to Section 71 of the Workers Compensation Act

1988."

11. The following grounds of appeal were relied upon:

"1 Failed to properly apply the correct principles or

alternatively applied wrong principles in reaching his

determination that the worker's injury should be deemed

to have occurred on 31 July 1992;

2 Failed to hold that the worker became partially

incapacitated on 18 May 1992 and that accordingly her

injury should be deemed to have occurred on that date;

3 Erred in holding that the worker's injury should be

deemed to have occurred on 31 July 1992;

4 Failed to properly apply the correct principles or

alternatively applied wrong principles in reaching his

determination that the worker had suffered a

proportionate loss of use of her right arm of 60%;

5 Failed to give any sufficient or adequate reasons for

his determination that the worker had suffered a

proportionate loss of use of her right arm of 60% by

reason of her injury."

12. A preliminary issue arises whether an appeal against the first "determination" is competent. Counsel for the appellant accepted that the "determination" that the injury was suffered or occurred on 31 July 1992 was a finding of fact and no question of law arose unless that finding was one which no Commissioner could have made acting reasonably and properly instructed as to the law. See FAI General Insurance Co v Morrisson Crawford J No A79/1993; TGIO v McLeod Wright J No B37/1991; Cascade Brewery Pty Ltd and Anor v Chambers, a decision of mine, No 76/1992.

13. The Act, s63(1) confers a right of appeal in the following terms:

"63 (1) If any party to a proceeding before the

Commissioner is aggrieved by any determination, order,

ruling, or direction of the Commissioner in point of

law, that party may appeal to the Supreme Court."

14. The matter in respect of which this Court has jurisdiction is "any determination, order, ruling, or direction of the Commissioner". On behalf of the appellant it was submitted that the impugned finding of fact was a determination within the meaning of the Act s63. Not unexpectedly, as the insurers wanted their dispute resolved, the third respondent supported the appellant's argument. Counsel for the employer had no submissions to make on the issue of jurisdiction, but counsel for the worker submitted that the only determination within the meaning of s63 was that which found expression in the order.

15. The Act does not use the word "ruling" to confer jurisdiction on the Commissioner. No doubt it is synonymous with the word "decision". In International Catamarans Tasmania Pty Ltd v Stewart No B19/1994 Zeeman J exercised the court's jurisdiction to overturn "a ruling of the Workers Compensation Commissioner to the effect that he had jurisdiction to entertain further argument in relation to the validity of a certificate served on the respondent by the appellant in purported reliance upon the Workers Compensation Act 1988, s86(1)(c)."

16. Jurisdiction to give a direction or directions is conferred on the Commissioner by the Act, ss43(1), 57(5), 60(1)(d), 71(8) and 112(4). In substance, all of these sections refer to what could be described as matters of procedure. No doubt there is some overlapping of meaning between the words "ruling" and "direction". It was not submitted on behalf of the appellant that the impugned finding of fact was either a ruling or direction.

17. Until the insertion of s81A by Act No 50 of 1992, jurisdiction in relation to disputed claims for compensation was conferred by the use of the word "order" in three cases only viz, by s60(1), contempt in the face of proceedings, by s57(2) to order a rehearing and by s61(1) which provides:

"61 (1) Where the Commissioner makes a determination

in respect of a claim for compensation referred to him,

the Commissioner shall make an order that gives effect

to that determination."

18. Section 81A(3) empowers the Commissioner to "order" an employer to make certain payments from specified dates. If the drafting of the amending Act had been consistent with the style of the principal Act, the jurisdiction conferred by s81A(3) would have been conferred by the use of the word "determine" and given effect by the operation of s61(1).

19. Primarily, the Workers Compensation Commissioner's functions are conferred by s20 in the following terms:

"20 The functions of the Commissioner are as follows:

(a) to determine all claims for compensation referred

to him under this Act;

(b) to determine such other matters as are referred to

him under this Act;

(c) to exercise the powers conferred, and the duties

imposed, on him elsewhere in this Act;

(d) to hear and determine any appeal referred to the

Commissioner under the Workers' (Occupational Diseases)

Relief Fund Act 1954."

20. Additionally, the word "determine" is employed to confer jurisdiction on the Commissioner by at least fifteen other legislative provisions.1

(Workers Compensation Act 1988, ss3(6), 18(4), 22(1)(b), 42(4), 49(3)(a), 59(1) (2), s69(4)(c), (10) and (12), 71(7) and (10), 81A(3) and 91(2). (This list does not purport to be exhaustive).)

21. The word determination is in common use to confer statutory rights of appeal. Although its meaning falls to be construed in the context of the statutory framework in which it is enacted, there appears to be a common judicial thread that generally, the word refers to an adjudication that resolves or deals with the substance of the issue that is before the tribunal for resolution. In National Australia Bank Limited v Russell and Ors [1990] VicRp 82; (1990) VR 929 the Full Court of Victoria considered the meaning of the word where enacted in the Credit (Administration) Act, s82 which conferred a right of appeal from a determination of the Credit Tribunal. At the hearing before the tribunal a preliminary point as to jurisdiction was raised. It was submitted that the tribunal had no jurisdiction because the relevant section only applied to farm machinery used in connection with a farming undertaking and the definition of farm machinery did not include the crops of the mortgagor. The tribunal determined that the matter should be adjourned to enable evidence on the issue of jurisdiction to be placed before it. In the course of its reasons the argument put with respect to the farm machinery was rejected. The Act defined determination to include "order, direction decision or declaration." The Full Court held that the rejection of the argument with respect to farm machinery was no more than part of the reasons and could not be regarded as an order or a determination. In Harrison v City of Adelaide Development Committee (1981-1983) 50 LGRA 405 there was a statutory right of appeal from a "determination or decision" of the Planning Appeal Board. The Board's judgment was that it had no jurisdiction to entertain the matter referred to it. Wells J held that this was a determination or decision and the court had jurisdiction to entertain an appeal. At 411 His Honour referred to the "matter ... presented ... for determination", and said that implicit in the resolution of the matter was the preliminary issue of jurisdiction and thus the refusal to determine the matter for want of jurisdiction was a decision or determination from which an appeal lay.

22. The Workers Compensation Act 1988, s63, refers to "any determination, order, ruling or direction" and thus must be construed broadly. In Mobitel (International) Pty Ltd v Dun and Bradstreet (Australia) Pty Ltd (1979) 22 SASR 288 the Full Court was required to rule on the competence of an appeal against a preliminary point of law decided by the Credit Tribunal. A right was given to "any person aggrieved by a decision or order of the tribunal" to appeal "against the decision or order of the tribunal". Walters J contrasted the preliminary determination with "a decision or order of the tribunal that determines the substantive rights of the parties" (292) and held that a preliminary determination gave rise to no right of appeal. In Leeming v City of Port Adelaide (1986) 44 SASR 131 it was held that a finding made by a Planning Appeal Tribunal in the course of determining that a declaration by a council be revoked, was not a determination or decision of the tribunal and therefore there was no right of appeal.

23. Although a broad interpretation must be given to the expression "any determination", the scheme of the Act, the uses for which the Act employs the word "determine" together with the ordinary meaning of that word leads to the conclusion that it does not extend to all the findings of fact made by the Commissioner in the course of determining the lis between the parties. In this case the issue in respect of which the learned Commissioner was exercising jurisdiction pursuant to s42, was whether the first respondent was entitled to a lump sum payment pursuant to s71 and if yes how much? The relevant determination was that she was entitled to be paid compensation in the sum of $28,692.93 and the order made to give effect to that determination, was that the second respondent pay her that sum within 28 days. This is the determination and order in respect of which this Court has jurisdiction. It is unnecessary to consider whether the finding that the injury was suffered on 13 July 1992 was erroneous in law because even if it was, that error would not make the determination or order erroneous in law as it was common ground that the injury was suffered some time during 1992 and during the whole of that year the basic rate or salary remained constant.

24. Although the learned Commissioner could not determine the issue between the two insurers, they became involved in the proceedings between the first and second respondent by virtue of the provisions of the Workers Compensation Act 1988, s45(2). Section 42(1) requires the Commissioner, on receipt of an application, to determine "the persons who appear to him from the application to have an interest in the settlement of the claim for compensation" (my emphasis). Subsection (5) requires the Registrar to serve such persons with a notice containing particulars of the claim. The Act, s43(1) empowers the Commissioner to direct the applicant and "any person determined by him under s42(4) to have an interest in the settlement of the claim for compensation "to provide him with information with respect to the claim and direct such persons to attend a settlement conference". If the claim cannot be settled the Registrar is to give notice of the time and place for hearing to every person who has been served with a notice under s42(5). All of those are no doubt sensible provisions directed to achieving early settlement of disputed claims, but s45(2) goes on to provide:

"A person who is served with a notice under subsection

(1) shall be regarded as a party to the proceeding

relating to the claim for compensation to which the

notice relates."

25. "(S)hall be regarded as a party to the proceeding" is a curious expression. There is nothing in the Act to indicate for what purposes or by whom such persons are to be regarded as parties. Presumably Parliament did not intend such persons to be in fact parties to a proceeding because the next subsection goes on to provide:

"(3) The Commissioner may, in his discretion, join a

person as a party to the proceeding if the Commissioner

is satisfied that that person has a sufficient interest

in the settlement of the matter to which the claim for

compensation relates."

26. I agree with the observations of Zeeman J in Tasmanian Government Insurance Board and Ors v Priest No 57/1993 at 1, that in many cases there is no need to join the insurer as a party because the insurer has the right to act on behalf of and in the name of the insured in any event. The Act, s62(1), provides that subject to an appeal "an order made by the Commissioner is final and binding on all parties to the proceeding to which the order relates." Whether the insurers are parties for the purpose of that provision is not clear, but in any event as the order in this case is that the employer pay the worker $28,692.93 within 28 days, it has no direct effect on either of them. It is difficult to imagine a case concerning a claim for compensation in which an order has any effect on an insurer as in all such proceedings the issues are between employer and employee.

27. Counsel for the appellant submitted that in any subsequent proceedings between the employer and the two insurance companies with respect to indemnity under the policy of insurance, the insurance companies would be estopped from asserting that the injury occurred on a day other than that found by the learned Commissioner. This argument was not developed and was unsupported by authority. It would be surprising if the insurers were estopped in subsequent proceedings between them by a finding of fact made on the dispute between the first and second respondent, as there was no justiciable dispute between insurers before the Commissioner and they became parties to litigation between the first and second respondent by virtue of a statutory provision which provided that they were "to be regarded" as parties whether they wished to or not, and without first having had an opportunity to be heard. In Secretary, Department of Aviation v Ansett Transport Industries Ltd and Anor (1987) 72 ALR 188, a decision of the Full Court of the Federal Court, Fisher J referred in some detail to the judgments in Carl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) (1967) 1 AC 853 and said at 205:

"It seems clear to me that issue estoppel can only be

raised by or applied against parties who were in

'controversy' at the time when the issue was first

determined, either in their favour or adversely to

them. If a party was not involved in the litigation of

that issue, either because it was not an issue between

him and another party to the proceedings, or because he

was not a party at all to the proceedings at the time

of resolution, then he is not affected by, nor can he

raise, an estoppel."

28. Whether the finding of fact with respect to the date the injury was suffered can operate as an issue estoppel in subsequent proceedings between the insurers is immaterial to the view I have reached with respect to the meaning of "determination" as enacted in s63. As the question of issue estoppel was not the subject of full argument it is not appropriate to canvas it further in these reasons.

29. The other finding of fact which the appellant claimed was an error of law is the finding that the proportionate loss of the use of the arm is 60 per cent. If this claim is made out, the determination and the order are tainted with error and must be set aside. Accordingly, it is appropriate to consider this aspect of the matter as an appeal against the order that the employer pay the worker $28,692.93 on grounds 4 and 5 set out in the notice of appeal viz, that the learned Commissioner:

"failed to properly apply the correct principles or

alternatively applied wrong principles in reaching his

determination that the worker had suffered a

proportionate loss of use of her right arm of 60 per

cent;

failed to give any sufficient or adequate reason for

his determination that the worker had suffered a

proportionate loss of use of her right arm of 60 per

cent by reason of her injury".

30. The Act, s71(1) sets out a table of injuries, item 10 of which provides for the total loss of an arm or greater part of an arm. The subsection enacts that "the amount of compensation payable ... is ... an amount equal to the number of units or the percentage of that number respectively specified opposite the injury" in the table. If the loss is of the use of a part of the body specified in the table but not of that part itself, s71(2)(a) provides that if that use is wholly and permanently lost, "there shall be deemed to be a total loss of that member or part." Thus, the Act provides for a deemed physical loss if there is a total and permanent loss of use.

31. Section 71(2)(b) and the subsequent subsections, draw a distinction between the following injuries:

- total and incurable paralysis of limbs or spine including

quadriplegia or paraplegia;

- severe facial scarring or disfigurement;

- permanent impairment of the back;

- severe bodily disfigurement;

- permanent impairment of the neck;

- permanent impairment of the pelvis;

- and the remainder of the 45 items set out in the table

enacted by subs(1).

32. Section 71(2)(b) provides for a system of measurement of compensation in cases other than those listed above where the loss suffered is a proportion of or a proportion of the use of the member, part, or faculty specified in the table. In such cases the paragraph provides that, "the compensation payable ... shall be such proportion of the amount equal to the number of units specified opposite the injury in that table as is equal to the proportionate loss suffered by the worker." Section 71(2)(f) provides that the compensation payable in respect of the injuries listed above is such amount as the Commissioner may determine. Subsection (6) obliges the worker, the employer or the licensed insurer to refer "the matter" to the Commissioner where the worker suffers one of the injuries listed above. Upon such referral subs(10) requires the Commissioner to determine the amount of compensation "having regard to the severity of the injury and the extent to which the worker's capacity to lead a normal life and to engage in remunerative employment has been affected by the injury."

33. The forerunner of s71 is the Workers' Compensation Act 1927, Schedule 1, rr5 and 6. Rule 5 referred only to compensation for total loss. The table of losses was not as extensive as that presently enacted by s71(1). Schedule 1, r6 was difficult to construe but was traditionally resorted to in cases where some part of the injury was of the genus referred to in r5, but failed to fit completely within the tabular description set out in that rule. See Turner v Australian Pulp and Paper Mills Cosgrove J No 1/1986. Rule 6 required the judge to "award as compensation such amount as, having regard to the provisions of r5, appears to be just and proportionate to the degree of injury sustained by the worker." With respect to the implementation of that rule in a case of permanent partial loss of use of the left hand Cosgrove J said in Dickens v The Friends' School No 40/1981 at 2:

"The compensation payable in accordance with the Table

in r5 is compensation for injury. It does not require

any proof of incapacity resulting from the injury.

Such incapacity, where it exists, can neither enlarge

nor diminish the worker's entitlement. It therefore

seems to me to follow that no resultant incapacity can

enlarge or diminish the amount payable for a partial

loss of use of a member.

On the other hand, I am to arrive at an award which is

'just and proportionate' to the degree of injury. That

expression seems to indicate that the award is not to

be determined by any purely mechanical means. It seems

to mean that I must first consider the uses to which

the hand had been trained, and of which it was capable,

prior to the injury. Then I should look to the

diminution of those uses and capacities which are

attributable to the injury. In so doing, I should have

regard to diminution in use caused by mechanical

failure of bones, muscles, ligaments, nerves, etc, and

to resistance to use caused by pain, lack of

confidence, and so on. I should also have regard to

any inefficiency in the hand caused by lack of

co-ordination."

34. With respect to the drafting of Schedule 1, r6, Cosgrove J said in Turner at 5:

"If the decision is ever made to straighten out this

tangled statute, this rule should be given some

attention."

35. It would appear that his Honour's words did not fall upon deaf ears. I accept the submission put by counsel for the appellant with respect to the construction of the Act, s71(2)(b). In the first place, s71(1) provides that in cases of total physical loss of a member, part or faculty, compensation is fixed by the simple arithmetical formula provided for by the subsection. In the second place, s71(2)(a) provides that total and permanent loss of use of a member or part of a member is deemed to be physical loss of the whole or part of the member as the case may be. In the third place, s71(2)(b) (after excluding the specified injuries) provides for a simple mathematical calculation in cases where the loss consists of loss of a proportion of or a proportion of the use of a member, part, or faculty specified in subs(1).

36. The statutory scheme is now clear. In the case of all injuries, except those specifically exempted by s71(2)(b) the loss, whether it be actual or deemed, proportionate or whole, is to be measured without reference to any subjective factors such as those referred to by Cosgrove J in Dicken's case. It is only in the case of an injury exempted by s71(2)(b) that the assessment process, which must be carried out by the Commissioner, takes into account subjective factors as prescribed by s71(10).

37. On behalf of the appellant it was submitted that the learned Commissioner gave no or inadequate reasons upon which to base his assessment of 60 per cent that his assessment was not in accordance with law.

38. Although the learned Commissioner's findings of fact and reasoning for concluding that the proportionate loss was 60 per cent are neither extensive nor elaborate, it is clear that he relied upon the contents of a medical report dated 27 September 1994 viz, two days before the hearing. The nature of the report is encapsulated in the first sentence: "I will attempt to summarise this long and complicated problem." The report describes the difficulties that the first respondent has with her work and domestic chores and it concludes:

"Taking into account the fact that she has lost her

job, is grossly limited in her domestic abilities and

has lost a large proportion of her recreation, I

estimate that her loss of function in this arm is

approximately 80 per cent. In this matter I am

addressing loss of use and function rather than pain or

disability."

39. By the last sentence it would appear that the medical practitioner is confining his opinion to functional loss and excluding subjective factors. However, preceding paragraphs of the report led the learned Commissioner to conclude that:

"It seems clear that in assessing loss of function of

the arm for the purposes of that report the general

practitioner was taking into account many other things

such as loss of a job, restriction in domestic ability

and loss of recreational ability. Although he says he

addresses only loss of use and function rather than

pain and disability, I think it clear that he was also

taking those other things into account."

"The purely functional loss of use would amount in my

view to something that is not susceptible to 'entirely

logical exposition' to use the words of the New South

Wales Court of Appeal in Southgate v Waterford (1990)

21 NSWCR 427, but doing the best I can on the evidence

available to me I estimate that the worker is still

able to do things with her arm and can perform light

duties with it. To that extent she has not totally

lost her arm and I think that in the circumstances a

reasonable assessment of the proportion of loss of use

of the arm would be sixty per cent."

41. Although the learned Commissioner does not expressly state that he accepts the first respondent's evidence nor does he expressly state that he accepts the evidence of the medical practitioner, the only inference reasonably open from reading the whole of his reasons for the determination is that he accepted the substance of the evidence given by both witnesses. Indeed, it appears from reading the transcript that its substance was not really in dispute. The reasons disclose that the learned Commissioner has correctly applied the law, for he has discounted the opinion of the medical practitioner with respect to the proportionate loss of use of the arm upon the grounds that he took into account factors other than physical loss of use. Accordingly, no error of law can be detected in the finding that the proportionate loss of use of the arm was 60 per cent and grounds 4 and 5 of the notice of appeal are not made out.