COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies J.

CWDS
  Administrative Law - compensation - appeal from decision of Administrative
Appeals Tribunal - whether open to Tribunal to conclude that employee with
back injury was not "partially incapacitated for work" - meaning of
"incapacity for work"
  Administrative Appeals Tribunal- failure by Tribunal to identify correct
decision under review - substance of true issues nonetheless considered by
Tribunal - good practice for Tribunal to include material parts of
determination under review and legislation in reasons for decision
  Administrative Appeals Tribunal Act 1975 (Cth) s.44
  Compensation (Commonwealth Government Employees) Act 1971 (Cth) - s.46
  Arnotts Snack Products Pty Ltd v Yacob (1985) 57 ALR 229

HRNG
SYDNEY
#DATE 30:6:1986

ORDER
  1. The appeal be allowed with costs.
  2. The decision under review be set aside and the matter remitted to the
Administrative Appeals Tribunal to be reheard and determined according to
law.

Note : Settlement and entry of orders is dealt with in Order 36
       of the Federal Court Rules.

JUDGE1
      This is an appeal from a decision of the Administrative
Appeals Tribunal given on 6 June 1985.  The decision in substance affirmed a
determination of a delegate of the Commissioner for Employees' Compensation,
though it will be necessary for me to make some comment as to the form of the
decision.
2.  The appellant, Miss P.A. Gersbach, formerly Mrs P.A. Justice, was born on
17 March 1930 and was 55 years of age at the date of the decision of the
Tribunal.  In about 1973, she joined the Australian Telecommunications
Commission in Parkes, NSW, as a typist and continued in that employment for
eight and a half years.  For most of the period of her employment, she carried
out other duties in addition to typing.  On 4 September 1981, Miss Gersbach
suffered injury to her back while she was standing on a ladder reading meters.
The nature of the injury is not entirely clear, though one of the treating
doctors spoke of a lumbar disc lesion.  The Tribunal merely found,

         "44.  Whether or not the incident on a ladder on 4
          September 1981 caused the applicant's 'lumbar disc
          lesion', or merely aggravated a pre-existing
          condition (compare Dr. Meachin's view with that of
          Dr. Ehrlich), it is clear on the evidence before
          the Tribunal that, contrary to the view of the
          personnel officer, Parkes (E.A. Renshaw, T3) the
          applicant's position was 'over loaded', and that,
          in combination, the tasks associated with and
          performing the mail and filing duties associated
          with her position as a typist, grade 1, caused the
          applicant to develop a back condition from which
          she was suffering on the date of her resignation
          (21 April 1982) and from which she is still
          suffering.  ...".

3.  On 21 April 1982, Miss Gersbach resigned from her employment.  The
Tribunal explained this resignation as follows :

         "20. The applicant returned to work, but found that
          she was in extreme pain, particularly in her mail
          and filing duties.  She said that she was forced
          to sell her house, because she could no longer
          manage the gardening.  She received some relief
          for periods of up to 3 weeks, when Dr. Meachin
          gave her injections at the base of the spine.
          Finally, on 21 April 1982, she resigned from her
          employment.  In particular, she found that she
          could no longer carry on the filing and mail
          duties.  She continued with the same kind of work
          right up until the day she resigned.

          .....

          29. The applicant agreed that prior to her
          resignation in April 1982, she was able to carry
          out her typing duties, albeit with difficulty,
          because she was 'never out of pain the whole
          time'.  The applicant agreed that she accepted the
          duties that she was given, and was equivocal on
          whether she had ever asked for light duties.  She
          said that she spoke to Miss Renshaw about
          obtaining light duties, and that she understood
          that the doctors' reports would cover that.  She
          agreed that she had made no formal application for
          light duties.  Basically, the applicant's position
          was that the people in personnel could see the
          pain that she was in, and she assumed that it was
          appropriate to leave it to them to attend to such
          matters as allocation of light duties."

4.  Liability for the injury was accepted by a determination of a delegate of
the Commissioner for Employees' Compensation dated 26 November 1981.  This was
given further effect by a determination of 13 April 1984, which gave
compensation for several periods of sick leave and for medical treatment.
Paragraph 1 of the determination of 13 April 1984 read :

         "(1) In accordance with the provisions of section
          45(2A) of the said Act, she is entitled to the
          payment of compensation at the weekly rate
          equivalent to full sick pay, including any
          relevant salary allowances, in accordance with
          prescribed conditions relating to the payments of
          such allowances during periods of sick leave from
          10.11.81 to 19.11.81, 1 hour on 7.12.81, 50
          minutes on 9.12.81, 5.2.82 one day, 15.2.82 to
          21.2.82, 3 hours 51 minutes on 3.3.82."

5.  On 10 February 1984, a delegate of the Commissioner for Employees'
Compensation had made the following determination :

         "1. On the evidence before me, including specialist
          medical opinion, I find that on and from 22 April
          1982 the personal injury sustained by the said
          Patricia Anita Gersbach on 4 September 1981 has
          not prevented her from earning in some suitable
          employment or business a weekly amount which is
          not less than her average weekly earnings before
          that injury, calculated in accordance with section
          25 of the said Act.

          2. NOW THEREFORE, in pursuance of the provisions
          of the Compensation (Commonwealth Government
          Employees) Act 1971, and further to the
          determinations previously made in this matter, I
          hereby determine that the Australian
          Telecommunications Commission is not liable to pay
          compensation in accordance with section 45 or
          section 46 of the said Act on and from 22 April
          1982."

6.  The decision of the Tribunal did not clearly identify which determination
it was that was under review but stated :

         "The decision of the Tribunal is to affirm
          paragraph (1) of the determination under review,
          insofar as it relates to the period on and from 22
          April 1982 until the date of the decision."

7.  One of the grounds of appeal is that the Tribunal made no decision as to
the determination of 10 February 1984.  I agree that the reasons for decision
referred to the determination of 13 April 1984, though the terms of the
determination were not set out therein, and that the decision appears to have
been drawn with that determination in mind.  The Tribunal appears to have
assumed that paragraph (1) of the determination of 13 April 1984 impliedly
refused compensation with respect to the period on and from 22 April 1982, a
period which that paragraph did not mention.  It was, however, the
determination of 10 February 1984 which achieved that and, having regard to
the substance of the Tribunal's decision, the Tribunal ought to have affirmed
the whole of that determination.
8.  This is a matter of technicality which could be corrected by an order of
the Court if that were the only issue.  It is not a matter of substance.
However, I take this opportunity to observe that it is good practice for a
Tribunal, when reviewing a determination of the Commissioner for Employees'
Compensation, to set out in its reasons for decision the material parts of
that determination.  Such a practice not merely assists identification of the
determination which is under review, but concentrates attention upon the
precise issues which the determination raises.
9.  It is likewise good practice to set out the material parts of the
legislation which is relevant to the decision in the review.  In the present
case, the relevant provisions were :

         "46.(1) Where an injury to an employee results in
          the employee being partially incapacitated for
          work, the succeeding provisions of this section
          have effect.

             (2) Subject to this section, compensation is
          payable to the employee, during the period of the
          incapacity, of an amount per week equal to -

          (a)   the lesser of the following amounts, namely
                -

                (i)    $90 or such higher amount as is
                       prescribed;  or

                (ii)   the amount (if any) by which the
                       average weekly earnings of the
                       employee before the injury exceeds
                       from time to time the amount per week
                       that he is able to earn in some
                       suitable employment or business;  or

          ...".

Those provisions were not set out in the reasons for decision of the Tribunal
and perhaps its failure to identify correctly the decision under review and
its failure to specify the legislation being applied led to the ground of
appeal "That the Tribunal failed to identify the true issues".
10.  In my opinion, this ground has not been established, for in the
Tribunal's reasons for decision there is set out, in the Tribunal's own words,
the substance of the matters that s.46 requires to be considered.  However, I
should point out that it is desirable that, early in the proceedings before it
in a matter such as this, the Tribunal should ensure that the parties have
identified the determination that is under review and the legislative
provisions that are relevant to it.  Much of the evidence that was given on
behalf of the applicant went to the issue of the liability of the respondent
in respect of the injury, whereas it was never an issue that the injury
suffered was a compensable injury.  Very little evidence was directed to the
extent of the incapacity of Miss Gersbach on and from 22 April 1982 and to her
ability to gain remunerated employment.  As Mr B.J. Skinner, counsel for the
respondent, observed during argument in the appeal,

         "... the applicant's case before the Tribunal was
          misconceived as to the correct test and, indeed,
          as to what was being sought by way of review, ..."

An early identification of the true issues may well have improved the quality
of the hearing and avoided the necessity for the Tribunal in its reasons
making comments such as "The Tribunal is left to speculate" as to relevant
matters.
11.  I turn now to the crux of the matter.  The Tribunal made a specific
finding that the applicant was not after her resignation on 21 April 1982
either totally or partially incapacitated for work.  Although many individual
grounds were argued in this appeal, the crucial point is, I think, whether or
not, on the evidence before it, the Tribunal, properly instructed as to law,
could have come to this conclusion.
12.  The Tribunal's conclusion was explained in paragraph 61 of the Tribunal's
reasons for decision as follows :

         "60.  ... She was, however, from that time (the
          injury) until her resignation partially
          incapacitated for the work which she was
          performing in that period within the meaning of
          section 46 of the Act, in the sense that she had
          a:

                'reduced physical capacity, by reason of
                physical disability, for actually doing work
                in the labour market in which the employee
                was working' (Arnotts Snack Products Pty.
                Ltd. v. Yacob Yacob (1985) 57 ALR 229, 233).

          61.  From 22 April 1982, the applicant was not
          partially incapacitated in the labour market in
          which she might reasonably be expected to look for
          work, namely, the work of a typist, a
          receptionist, or other such work."

13.  The medical evidence did not picture the appellant's injury as severe as
she herself described it.  However, the doctors all gave a picture of an
injury of considerable significance.  The Tribunal's reasons included the
following passages :

         "36.  Dr. Meachin ... said that she might be able
          to type for an hour or so but after that her back
          ache would become worse and she could not sit down
          and type all day.  After an hour of typing she
          would need some relief.

          37.  Dr. Meachin did not feel that any operation
          that might be performed on the applicant would get
          her back to the stage where she could perform full
          duties.  ...  The applicant had come to see Dr.
          Meachin on 12 September 1983.  On 22 December of
          that year he wrote a report to her solicitors;
          and his opinion on 22 November 1983 was that the
          applicant was fit for a variety of light duties
          which did not involve repetitive lifting or
          bending.

          .....

          39.  In cross examination, Dr. Opie agreed that
          disc protrusions, if the applicant has one, can
          cause pain.  When asked whether he would expect
          the applicant to be able to sit for any length of
          time, Dr. Opie said that :

                'Prolonged sitting is something that ...
                people with back lesions sometimes complain
                of in a similar way (as) they complain of
                prolonged standing, but if she were a solo
                operator in a local area she might be able
                to get up, relieve her back, and have a rest
                or walk about.  I felt she could cope with
                that.  (Question :  so that you would expect
                her to be able to sit for at least an hour
                or two ... to do some typing?)  I would
                think so, yes'.

          40.  Dr. Opie said that even though a disc
          protrustion might reabsorb, the person suffering
          from it was vulnerable, and :

                'any strain on the lower spine such as
                prolonged walking or standing could
                reproduce the symptoms' ... just about
                anything can give a back pain without
                necessarily being a back cripple.  (Question
                :  would you expect her to be able to sit
                for up to 4 or 5 hours a day typing?)  ...
                there would be many occasions on which she
                could probably do that without any undue
                miscomfort.  There are other occasions when
                she would not be able to do it;  it just
                depends on the state of her back at the
                time'.

          .....

          42.  ... Dr. Erlich ... opined that the applicant
          had improved, but had not completely recovered.
          He said that :

                'During acute periods she might have
                difficulty with anything, even just being
                upright.  I think she might - depending on
                just the situation at that particular time.
                But I could see the situation where she gets
                bouts of sciatica with enough pain to render
                her unfit for any work at all'.

          He said that :
                'Most people who have got back problems can
                cope with a job like typing.  They might
                have to get up now and then and have a bit
                of a stretch or just have a breather, or
                stretch the legs for a moment but then I
                think even a completely fit healthy and
                normal type might want to do that every now
                and then'.

          In his report Dr. Erlich said that the applicant
          should 'avoid heavy lifting, frequent stooping or
          working in difficult or cramped postures'.

          43.  Dr. Michael Johnson's opinion was that :

                'on her history this woman developed an
                acute disc prolapse in December 1981,
                resulting in back pain and right sciatica,
                symptoms of which have persisted.  Her
                X-rays are normal and I feel that a lumbar
                myelogram and CT scan would be necessary for
                further evaluation of the disability.  On
                her symptoms and current signs, she would be
                unfit to sit working as a typist let alone
                that sort of work that she was engaged upon
                when this commenced.  The functional X-rays
                of the lumbar spine should also be arranged
                to see if there is any instability at this
                stage'."

14.  The meaning of the concept "incapacity for work" was recently examined in
Arnotts Snack Products Pty Ltd v Yacob (1985) 57 ALR 229 and it is sufficient
for me to refer to that case which adequately covers the issue here under
consideration, though the case discussed the New South Wales legislation.  At
page 234, after comprehensively discussing the principles to be applied,
Mason, Wilson, Deane and Dawson JJ concluded :

         "In the present case because the Commission found
          that the respondent's injury disabled him from
          performing part of his pre-injury work, it
          followed that he was partially incapacitated for
          work - he was unable to undertake clerical duties
          which involved climbing, lifting and bending.  His
          incapacity for work, due to the injury, was
          clearly relevant to his pre-injury employment and
          to his ability to sell his labour on the open
          market.  Potential employers, like the appellant,
          who have jobs for clerks who are required to
          climb, lift and bend, would not employ him."

15.  In my opinion, the Tribunal failed to apply this concept. The Tribunal,
without in fact having any evidence before it that there was work available in
Parkes or in Orange, where Miss Gersbach was then living, for a 55-year old
typist with a bad back, drew the conclusion that Miss Gersbach could obtain
employment as a typist or perhaps a receptionist.  I do not presently need to
consider whether that was a finding that was open to the Tribunal.  For the
purpose of this judgment, I assume it to have been properly made.  Yet the
Tribunal was in error in concluding that, because Miss Gersbach could work as
a typist or do other like work, she had no incapacity for work.
16.  The Tribunal said,

         "... On the evidence before it there is nothing to
          suggest that the applicant would be prevented from
          gaining employment as a typist by her back
          condition, nor from carrying out the ordinary
          duties of a typist, at least as the Tribunal
          understands them to be.  However, the applicant
          does have a reduced capacity for doing the work on
          which she was engaged, namely, typing duties in
          association with lifting or dragging of mail bags,
          filing of material in old style over-full filing
          cabinets, and meter reading where this involves
          balancing on a ladder."

The Tribunal did not suggest that Miss Gersbach was capable of earning income
other than by typing for an employer who understood that

         "... typing is now, for health and managerial
          reasons, regarded as something that can be
          interrupted by the employee at the employee's
          discretion at such time as a cramp, pain, or other
          discomfort should emerge in the course of the
          employee's duties.",

or by like work.
17.  Thus, the evidence established that Miss Gersbach had been partially
incapacitated for work by the accident and, as the Tribunal said, she was
unable to do the work which prior to her resignation in 1982 she had been
doing.  Accordingly, one part of the market which had previously been open to
her was closed as a result of the injury.  And, as the Australian
Telecommunications Commission had been her employer for eight and a half
years, that was a closure of considerable significance.  Carrying heavy
mailbags was not the only task that she was precluded from doing. Her injury
had occurred when she had been standing on a ladder for some time reading
meters.  It could not reasonably be suggested that she ought to repeat that
type of activity. Indeed, many types of work were closed to her.  Any
employment which involved her in doing a variety of jobs necessitating
stretching or stooping or lifting or the like was closed to her. Prior to her
injury, Miss Gersbach had, from time to time, done a variety of tasks
additional to the tasks of typing.  Prior to her injury, she could reasonably
have looked for work in a wide variety of employment, including work involving
stooping, bending, lifting and so on.  In my opinion, on the evidence before
it, the Tribunal, if properly instructed as to the concept of partial
incapacity for work, could have come only to the conclusion that, by reason of
her injury, Miss Gersbach had a "reduced physical capacity, by reason of
physical disability, for actually doing work in the labour market in which the
employee was working or might reasonably be expected to work".
18.  For these reasons, the Tribunal ought to have found the provisions of
s.46(1) satisfied and ought to have gone on to consider the question posed in
s.46(2).  Notwithstanding that much of the Tribunal's reasons may seem to have
been referable to the question under s.46(2), the Tribunal did not make a
finding under that sub-section, but found simply that Miss Gersbach was not,
after her resignation, either totally or partially incapacitated for work.
As, in my opinion, this finding was wrong in law, I will allow the appeal with
costs.  The decision under review will be set aside and the matter will be
remitted to the Administrative Appeals Tribunal for re-hearing.