Absolom v Mary Ogilvy Homes Society
[2000] TASSC 65
•13 June 2000
[2000] TASSC 65
CITATION: Absolom v Mary Ogilvy Homes Society [2000] TASSC 65
PARTIES: ABSOLOM, Michelle
v
MARY OGILVY HOMES SOCIETY
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 71/1999
DELIVERED ON: 13 June 2000
DELIVERED AT: Hobart
HEARING DATES: 5 April 2000
JUDGMENT OF: Underwood J
CATCHWORDS:
Workers Compensation - Proceedings to obtain compensation - Determination of claims - Appeals and stated cases - Question of law - What constitutes - Whether a failure by the Commissioner to give adequate reasons for determination - Whether an error of law - Credibility of the worker - Whether a duty to give sufficient or adequate reasons.
Workers Rehabilitation and Compensation Act 1988 (Tas), ss86(1)(c), 63(1), 61(3) and 86(3).
Burgess v Umina Park Home for the Aged and Another (1993) 2 Tas R 246; Attorney-General (Tas) v Smith A87/1994; McCain Foods (Aust) Pty Ltd v Williams A25/1997; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, followed.
Aust Dig Workers Compensation [161]
REPRESENTATION:
Counsel:
Appellant: L K Wall
Respondent: P L Jackson
Solicitors:
Appellant: Wallace Wilkinson & Webster
Respondent: Griffits & Jackson
Judgment Number: [2000] TASSC 65
Number of Paragraphs: 38
Serial No 65/2000
File No LCA 71/1999
MICHELLE ABSOLOM v MARY OGILVY HOMES SOCIETY
REASONS FOR JUDGMENT UNDERWOOD J
13 June 2000
Introduction
The appellant was employed by the respondent as an extended care assistant, Level 3, in its home for aged persons. It was not disputed that on 29 June 1997 the appellant suffered an injury arising out of and in the course of her employment. The appellant suffered what she described in the claim for compensation as "muscle strain: left shoulder and neck". There was no dispute about the respondent's liability to pay weekly payments and medical expenses, pursuant to the Workers Rehabilitation and Compensation Act 1988 ("the Act").
The respondent retained the services of consultant neuro-surgeon, Mr Harold Schaeffer. He examined the appellant on 29 January 1998 and 27 August 1998. By a certificate dated 14 October 1998, Mr Schaeffer certified that the appellant "has wholly or substantially recovered from the effects of the injury suffered by her involving muscle strain to her left shoulder and neck on 29 June 1997 …".
On 9 November 1998, this certificate was served upon the appellant, together with the notice prescribed by the Act, s86(3)(a), and after the expiration of the prescribed statutory period, the respondent stopped making weekly payments.
By notice dated 11 January 1999, the appellant referred the matter to the Workers Rehabilitation and Compensation Tribunal, in accordance with the provisions of the Act, s86(4).
On 26 and 27 July 1999, the Tribunal heard evidence and argument. On 18 August 1999, the Tribunal dismissed the appellant's application and published written reasons for doing so.
The appeal
On 23 August 1999, the appellant filed a notice of appeal. The notice contained two grounds. They bear no resemblance to the grounds which have to be determined. These emerged gradually over an extended period of time and only achieved finality just before counsel for the respondent commenced making his submissions on the hearing of the appeal. As finally settled, those grounds are:
"1 The learned Commissioner erred in law in determining that the 'relevant date' for the purposes of certification, pursuant to s86(1)(c) was 14 October 1998, the date of the certificate, and not 27 August 1998, the date of the examination and he further failed to make a finding as to whether the claimed circumstances justifying the proposed determination existed at the earlier date.
2 The learned Commissioner misdirected himself in law in making a determination as to the state of affairs encompassed by the second limb of s86(1)(c) of the Act when he should have directed himself as to the state of affairs certified which came within the first limb of s86(1)(c).
3 The learned Commissioner erred in law in that no Tribunal properly instructed as to the law and acting reasonably could have made the following findings:
(a)that the worker's ongoing symptoms were not caused by a facet joint dysfuncton;
(b)that the worker's fibro myalgia was not caused by the injury;
(c)that at the relevant date the worker had wholly or substantially recovered from the effects of the injury;
(d)any symptoms complained of were the result of some further condition which developed subsequent to the injury.
4 The learned Commissioner erred in law in failing to give any, or any adequate reasons for his determination."
Ground 1
It is convenient to dispose of ground 1 at the outset. It is true that in its reasons for judgment, the Tribunal referred to the relevant date as the date on which the certificate was given, namely, 14 October 1998 and not the date on which the appellant was last examined by the certifying medical practitioner, namely, 27 August 1998. Ms Wall, who appeared for the appellant, relied upon Goscombe v Cadbury Schweppes Pty Ltd (1993) 3 Tas R 19, in which case Zeeman J said at 39 - 40:
"The certificate can only speak of what the medical practitioner found upon such examination. It is the state of affairs existing at that time which founds the employer's claim to be entitled to terminate or reduce a weekly payment."
However, in Guthrie v Sherriff (1994) 3 Tas R 399, Zeeman J explained, at 418 - 419, that in Goscombe (as in this case) it was immaterial whether the relevant date was the date of the certificate or the date of the examination because no other relevant material was considered by the certifying practitioner between those two dates. In Guthrie, Zeeman J explained this when he said of Goscombe, at 419:
"Whether the latter time was the date of the examination (being the only occasion when the practitioner received any material relevant to the worker's condition), the date upon which the certificate was signed by the practitioner or the date upon which it was served was immaterial in the circumstances of that case. Prima facie the latter time would be the date of the giving of the certificate. I would not adhere to the suggestion I made in Goscombe v Cadbury Schweppes Pty Ltd (1993) 3 Tas R 19 that it is the date of the examination. However in Goscombe v Cadbury Schweppes Pty Ltd the certificate clearly related to the state of affairs existing as at the time of the examination and it was that state of affairs that constituted the 'matter' which was referred to the Commissioner."
So, too, in the present case, it was immaterial whether the Tribunal considered the matter as at the date of the last examination by the certifying practitioner or as at the date of his certificate or, for that matter, as at the date the certificate was served. The evidence indicated that the certifying practitioner did not consider any relevant material after the examination, and that during the period encompassed by those three events, the appellant's condition remained unchanged. Ground 1 is not made out. Before dealing with the other grounds, it is necessary to refer to the evidence given in the Tribunal.
The evidence
In her evidence, the appellant described how, on 29 June 1997, she went to help an elderly patient go from one room to another. She said:
"Anyway I said to her 'Judy can I help you back to your room' and she said 'Yes'. I put my arm through hers and she started to come quite compliant, there was no problem and then all of a sudden she just stiffened and fell back and at the same time she ¾ I couldn't get my arm out because she was squeezing it in and I just went to the floor with her, and I just ¾ immediately just felt, you know that something bad was wrong, I felt sick, I felt clammy. I felt sort or [sic] nervy, shaky and Mrs Burke the resident ran downstairs to get help."
This evidence was not the subject of challenge. The appellant said that she was taken to hospital but not admitted. She described suffering from pain in her neck and shoulder continuously since then and subsequently feeling depressed, miserable and, on occasions, angry.
The appellant said that although her initial symptoms improved after a while, they did not disappear. With respect to her condition at the time she gave evidence, the appellant described how she was unable to pick up her daughter or lift any weight. She said that she had difficulty hanging out the washing and doing the vacuuming. She said that she spread out her shopping over more than one day, as carrying heavy shopping bags caused her neck pain.
After some time, the appellant returned to work on light duties and for reduced hours. She said that at work she experienced pain if she tried to lift patients or push wheelchairs over carpet. The appellant said that the hours she worked gradually increased until the weekly payments were terminated following service of the certificate. She said that notwithstanding the cessation of payments, she was still unable to carry out a full range of duties because of pain in her neck and shoulder. Shortly after the weekly payments ceased, the respondent terminated the appellant's employment because she was unable to carry out the full range of duties expected of a person in her position.
Prior to the termination of her employment, the appellant was treated by Mr Graeme Jones, consultant rheumatologist. She also consulted a psychologist and undertook a rehabilitation program. She underwent two facet blocks. The second was necessary because the first was erroneously injected into the wrong side. Not surprisingly, this made her angry. Neither injection relieved her symptoms. Shortly prior to the hearing in the Tribunal, the appellant commenced a course of physiotherapy. She said that this resulted in some improvement in her symptoms, so that she was able to work 12 hours a week "telemarketing".
At the hearing in the Tribunal, the appellant demonstrated how she suffered from pain in her neck on the extremes of rotation and flexion, and pain on lifting her left arm above about shoulder height. She also complained of occasional numbness down the left arm that spreads into the whole of her hand. She said that sometimes her hand swelled up. The appellant's evidence was that at the time of the hearing in the Tribunal she was taking Panadeine Forte for pain and undergoing physiotherapy twice a week. The appellant said that she suffered a trapezius muscle strain in her left shoulder at work in June 1995, but that she had made a full recovery from that injury and immediately prior to the accident in June 1997 was suffering from no symptoms in her shoulder.
The appellant was cross-examined in the Tribunal, but it was not put to her that any part of her evidence-in-chief was incorrect, nor that she was exaggerating her complaints. Mr Schaeffer, the certifying medical practitioner, said that he had been a consultant neuro-surgeon for 42 years. From his evidence and that of the appellant, it appears that on the occasion of both consultations, the appellant described her symptoms in more or less the same manner as she described them to the Tribunal. Mr Schaeffer made a physical examination of the appellant on both occasions and had access to an ultrasound report. He said that he was unable to detect any physical basis for the appellant's complaints. In the certificate, he described these complaints on the first visit in January 1998 as "no more than trivial or inconsequential". This description is inconsistent with the description given by the appellant in her evidence. Mr Schaeffer said that the initial muscular strain should have settled after a short while and that the "duration and intensity of her symptoms did not correlate with the negative clinical examination". The substance of Mr Schaeffer's opinion appears from the following passage taken from his cross-examination:
"So you're saying if pain isn't from anything that you can determine. It doesn't exist, is this what you're saying? … Sometimes the pain is physical and sometimes it's in the mind of the patient and I don't want to speculate on the latter because I mean I'm a physically based specialist and my evidence is based on my knowledge of physical neurology, it's not based on speculation. I leave speculation to other people."
In his evidence, the appellant's treating neurologist, Mr Jones, agreed with Mr Schaeffer that there were no objective signs of a physical origin for the pain, but he disagreed with Mr Schaeffer's view that absent clinical or radiological evidence of structural damage to bone or tissue, the origin of pain must be non-physical. Mr Jones said that in his opinion the appellant's injury in June 1997 was similar to that sometimes sustained in a rear end motor vehicle collision and which is commonly known as a "whiplash injury". He diagnosed either a facet joint dysfuncton at C7, T1 and T½ level or fibro-myalgia as the cause of the appellant's symptoms. He was asked this question and gave this answer towards the end of his evidence-in-chief:
"In your opinion do all these symptoms that she described and the nature of the symptoms that she describes, are they all effects of the injury that she had at that time as far as you're concerned? … Yes."
Mr Jones' opinion then, was directly contrary to that expressed by Mr Schaeffer in his certificate and in his evidence. Mr Jones described facet joint dysfunction in these terms:
"Facet joint dysfunction I refer to ¾ a pain in the neck at certain sites relating to the zygapophyseal joints which the [sic] other name given to facet joints, which there are two at the back of each vertebrae. These are synovial joints so that they can get inflamed or injured and the ¾ in an injury like this you often see worsening of pain, the most common place we see these is following car accidents, so called whiplash injuries where well done studies have implicated the zygapophyseal joint as being the cause of neck pain in whiplash in over 80 per cent of cases."
Mr Schaeffer disagreed with this aspect of Mr Jones' diagnosis. He said that the appellant's complaint of numbness in the whole of her hand was inconsistent with C7/T1 dysfunction as the nerve involved at that level would only cause numbness or parathesia to the ulna border of the left hand. In cross-examination, Mr Jones said that he agreed with Mr Schaeffer's view about the nerve supply to the hand and that he also agreed that the appellant's failure to obtain relief from the second facet block was an atypical result for a patient suffering from facet joint dysfunction. However, he did not thereby totally exclude facet joint dysfunction as a diagnosis, but did agree that there was not only no objective sign to support it, but that also, there was evidence that tended to exclude it.
The Tribunal concluded that there was no facet joint dysfunction. No complaint can be made about that finding of fact as it was one that was properly open upon the evidence. However, that is not the end of the matter.
With respect to Mr Jones' alternative diagnosis of fibro-myalgia, Mr Schaeffer was dismissive. He said:
"Specifically about the fibro-myalgia, this is certainly a term that is frequently used and I think over used by physicians, you know, to describe, you know, soft tissue strain which appears to go on for a long time. It's a long word, but it doesn't mean anything more than soft tissue strain."
Mr Jones' view of fibro-myalgia appears in this passage of his evidence-in-chief:
"Fibro-myalgia is a controversial diagnosis as Mr Schaeffer's pointed out. This is a wide spread pain syndrome which appears to be a disorder of pain perception. The current best available evidence if I'm allowed to mention that would suggest that there are no definable abnormalities in muscles joints or ligaments associated with this condition. Rather there are changes in how pain is transmitted and there is again some evidence to back this up with changes in pain chemicals and fluid around the spinal cord and recent evidence out of Adelaide which is not yet published, showing that blood flow to pain centres in the brain is also altered. This diagnosis is controversial because the diagnosis is based on subjective criteria, there is no objective test for this condition currently although there may be in the future. I'm just saying that medicine is unperfect ¾ imperfect at diagnosing this condition."
It can be seen that Mr Jones' opinion was to the effect that although the initial damage to the soft tissue may heal, there may follow consequential changes which result in the patient continuing to perceive pain, notwithstanding the healing of the initial damage. In this respect too, there was a conflict between the evidence of Mr Schaeffer and the evidence of Mr Jones.
In cross-examination, Mr Jones agreed that the onset of fibro-myalgia, or its exacerbation, may be due in part to psychological stressors such as those from which the appellant has suffered, viz, anger towards her employer, sleeplessness, distress about the erroneous injection and, of course, the stress of the litigation. Mr Jones remained firm in cross-examination that the appellant was suffering from fibro-myalgia as a complication of the physical injury sustained at work, but conceded that it was possible that pain on raising her left arm above shoulder height might be due to the 1995 injury. However, that opinion did not take into account the appellant's evidence that she recovered from the 1995 injury and was symptom free immediately prior to the 1997 injury.
Thus far, the evidence in the case presented a complex factual/medical question that required the making of detailed findings of fact and the reasoned resolution of conflicting medical opinions. In addition to the evidence to which I have referred, there was evidence from the appellant's treating general practitioner and an occupational therapist who examined and reported upon the appellant in February 1999. The former adopted the opinions of Mr Jones and the latter confirmed the appellant's evidence about her pain and disabilities.
Central to the fact finding process was the need to make findings with respect to the appellant's evidence. In short, that evidence was that she had suffered from pain in her neck and shoulders, an inability to lift her left arm above shoulder height and an intermittent numbness in the left arm continuously since the occurrence of the compensable injury. All the medical evidence in the Tribunal supported the proposition that initially those symptoms were due to some physical derangement of the appellant's body caused in the accident at work on 29 June 1997. Upon a reference pursuant to the Act, s86(4), the onus is on the employer to establish that the circumstances were such as to justify the determination or reduction of the weekly payments. See Ryan v McCain Foods (Aust) Pty Ltd & Anor (1994) 4 Tas R 101; McCain Foods (Aust) Pty Ltd v Williams A25/1997. Application of that principle to the facts of this case required the Tribunal, not the medical practitioners, to make findings with respect to the nature and extent of the appellant's symptoms and disabilities (if any) at the date the certificate was issued and whether there had been any abatement of them between the occurrence of the accident and the date of the certificate. Consequent upon those findings it was necessary to make findings with respect to the competing views of Mr Scaeffer and Mr Jones and to deal with the issue of a causal link between the symptoms at the date of the certificate and those that immediately followed the injury.
The evidence of the medical practitioners included answers to questions concerning their view of the appellant as a truthful historian. Excepting the disciplines of psychiatry and psychology, an opinion with respect to the credit of a patient is not admissible in evidence. Generally speaking, such evidence does not "form part of a body of knowledge or experience which is sufficiently organised or recognised as to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the Court", per King CJ in R v Bonython (1984) 38 SASR 45 at 46 - 47. In saying this, I am mindful, of course, that the rules of evidence do not apply to evidence in the Tribunal, but the admission of such evidence tends to distract the Tribunal from its task. It is for the Tribunal to assess the credit of a worker from the evidence given to it at the hearing, and it is for the Tribunal to find whether the history given to a medical practitioner was accurate. It is for the medical practitioner to express his or her opinion upon medical matters and insofar as such opinion depends upon the worker's history, the practitioner may observe whether such history is consistent or inconsistent with any clinical or radiological evidence and any symptoms or signs. Apart from that, however, the view of the medical practitioner about whether the worker was a truthful historian, has no weight at all. See Ramsay v Watson (1961) 109 CLR 642.
In the present case, given the unanimity of medical evidence with respect to the initial causal link between the compensable injury and the symptoms, if a finding was made that the appellant's account of her symptoms was substantially accurate, the onus would be on the respondent to establish that it was more probable than not that those symptoms were due to something other than the original injury. The problem is that the Tribunal's reasons do not clearly make the necessary fundamental findings of fact, nor clearly address the fundamental problem of the onus of proof necessary in order to enable appellate scrutiny of the result.
The Tribunal's reasons for dismissing the application
The first 5½ pages of the Tribunal's reasons comprise a summary of all of the evidence that was given. The Tribunal then said:
"The issue to be determined is whether I can be satisfied that the worker had on the date of the certificate, that is 14 October 1998, wholly or substantially recovered from the effects of the injury suffered by her on 29 June 1997."
The foregoing passage correctly states the issue for determination. There follows a finding that the certifying practitioner addressed the correct injury and a further reference to some of the evidence. The reasoning process is confined to the following passage:
"Upon consideration of all the evidence I am satisfied that the worker did in fact suffer a soft tissue injury to her neck and shoulder and that the symptoms of same were pain and discomfort affecting the neck and shoulder and in particular with use of the arm and that these symptoms resolved at some time subsequent to 29 June 1997. I cannot be satisfied that the worker continued to suffer those symptoms referable to that injury as at the relevant date, being 14 October 1998. I cannot be satisfied that the continuation of her symptoms at that time can be explained by the existence of a condition described as facet joint dysfunction which was caused by the injury in June 1997. My conclusion in that regard is, due to the lack of any objective clinical signs of such injury or condition accepted by both Dr Schaeffer and Dr Jones and also from the atypical response following the facet joint blocks administered to the worker, I do not disregard the worker's complaint as to her ongoing symptoms, however I cannot be satisfied that there is any physical basis to explain same and in particular that the symptoms now complained of are as a result of the injury suffered on 29 June 1997. It would appear that the explanation for the worker's ongoing symptoms lays in existence of some psychological condition or the condition described by Dr Jones as fibromyalgia. However there is no evidence before me that any psychological condition is in fact suffered by the worker nor that such condition is in some way causally related to the initial injury for which benefits were paid. In respect of the condition fibromyalgia the evidence given by Dr Jones does not persuade me that if this condition exists, it was causally linked with the initial physical injury. Dr Jones on this point suggested a range of possible causes linked to the development of that condition, many of which could well be outside the ambit of circumstances which would create entitlement to benefits flowing from the initial physical injury. The evidence of Ms Milgate and the results of the Functional Assessment are not of assistance to me given that the testing was conducted nearly four months after the relevant date and of its very nature it is reflective of the subjective effort and response by the worker. What that evidence does highlight however is the existence of some abnormal pain perception or behaviour by the worker as commented upon by the medical evidence.
In conclusion I am not satisfied on the evidence presented that the present symptoms suffered by the worker are a sequalae [sic] of the initial physical injury suffered in June 1997. Accordingly I am satisfied that the worker has as at the relevant date wholly or substantially recovered from the effects of the initial injury and in that regard that any symptoms presently complained of are as a result of some further condition that has developed subsequent to that injury. In respect of that subsequent condition, whatever it might be, there is no evidence that satisfies me that there is a causal link between that later condition and the initial work injury."
The only finding with respect to the critical issue of the veracity of the appellant's evidence is in the sentence, "I do not disregard the worker's complaint as to her ongoing symptoms …". Required were detailed findings of fact as to the nature and extent of those symptoms at the time of the hearing and, most importantly, whether there had been any interruption in the suffering of those symptoms since the occurrence of the injury. Had it been found that the appellant's complaints at the time of trial were accurate and had it also been found that there had, in substance been no abatement in the suffering of those symptoms since the accident, the Tribunal would have been left with Mr Schaeffer's opinion that the cause of those symptoms at the date of the certificate was "speculation" and the evidence of Mr Jones that the cause was fibro-myalgia causally related to the accident. This, in turn, would have required findings to be made with respect to the cause of those symptoms as at the date of the certificate by an application of "a common sense evaluation of the causal chain" per Kirby J in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 463 - 464. Mr Jones identified some factors that may have contributed to the fibro-myalgia, some or all of which may not have amounted to a break in the chain of causation. None of this was the subject of findings. It was inadequate to say:
"Dr Jones on this point suggested a range of possible causes linked to the development of that condition, many of which could well be outside the ambit of circumstances which would create entitlement to benefits flowing from the initial physical injury."
Further, no finding was made with respect to the critical evidence given by Mr Jones that in his opinion the appellant's symptoms at the time of the certificate were due to the injury sustained at work.
Although not a ground of appeal, it appears to me that in approaching its determination of the issue before it, the Tribunal did not sufficiently heed the onus of proof. This is apparent from the passage in which the Tribunal said, "I do not disregard the worker's complaint as to her ongoing symptoms, however I cannot be satisfied that there is any physical basis to explain same and in particular that the symptoms now complained of are as a result of the injury suffered on 29 June 1997". The question that the Tribunal should have posed for itself was whether it was satisfied that such symptoms or effects, as it found existed at the date of the certificate, were not due to the injury suffered on 29 June 1997. Further, the passage I have set out above with respect to Mr Jones' evidence about the cause of fibro-myalgia also reflects an erroneous application of the onus of proof. Finally, a reversal of the onus of proof appears from this passage:
"In conclusion I am not satisfied on the evidence presented that the present symptoms suffered by the worker are a sequalae [sic] of the initial physical injury suffered in June 1997."
On behalf of the respondent, Mr Jackson submitted that a reading of the whole of the reasons for decision made it clear that the onus of proof had been properly applied. I do not agree with that submission. The reverse is the case. It appears to me that the only time the onus of proof was correctly applied was in the concluding passage, which does no more than summarise that which had already been said, and which began:
"Accordingly I am satisfied that the worker has as at the relevant date wholly or substantially recovered from the effects of the initial injury and in that regard that any symptoms presently complained of are as a result of some further condition that has developed subsequent to that injury."
The duty to give adequate reasons for judgment and the conclusion that a failure to do so is an error of law is well established. See Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Pettitt v Dunkley [1971] 1 NSWLR 376; Burgess v Umina Park Home for the Aged and Anor (1993) 2 Tas R 246. In Attorney-General (Tas) v Smith A87/1994 at 8 - 9, Zeeman J described the statutory duty imposed upon the Tribunal by the Act, s61(3) as requiring it:
"1 make findings with respect to the essential facts relied upon by the parties relevant to the references before him;
2 where the evidence with respect to any fact was in dispute or unclear, state the basis for making a particular finding in respect thereof;
3 where appropriate, state the inferences drawn from the facts found and, where necessary, the basis for drawing such inferences;
4 expose the reasoning process which resulted in his determination to the scrutiny of the parties and any appellate court."
As Evans J added in Roberts Ltd v Barker A137/1998 (a case not dissimilar in principle from the present) at 14:
"Consistent with the above, there is an obligation to state the reasons for accepting or rejecting the evidence of a key witness where there is conflicting evidence referable to the witness' credibility."
Grounds 2, 3 and 4
Ground 4 of the notice of appeal is made out. In consequence, it is impossible to determine ground 3. It is unnecessary to consider ground 2.
The appeal is allowed, the decision of the Tribunal is quashed and it is ordered that the matter be remitted to the Tribunal for rehearing before another Commissioner.
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4
1