Anderson v Australian Postal Corporation

[1993] FCA 275

Re: LYNETTE ANDERSON
And: AUSTRALIAN POSTAL CORPORATION
No. NG586 of 1992
FED No. 275
Number of pages - 8
Administrative Law
(1993) 32 ALD 138

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Beazley J(10

CATCHWORDS

Administrative Law - liability of employer to pay compensation - whether employee sustained personal injury in the course of employment or whether employment a contributing factor to the contraction, aggravation or acceleration of a "disease" - whether Tribunal failed to make findings on material questions of fact and provide reasons for decision - whether possible to determine from Tribunal's reasons if correct test in respect of "disease" applied pursuant to s. 29 of the Compensation (Commonwealth Government Employees) Act

Administrative Appeals Tribunal Act 1975 ss.43, 44

Commonwealth Employees' Rehabilitation And Compensation Act 1988

Compensation (Commonwealth Government Employees) Act 1971 ss. 27, 29

Delahunty v. Commonwealth (1981) 53 FLR 9

Dornan and Ors. v. Riordan (1990) 24 FCR 564

Australian Telecommunications Commission v. Barker (1990) 12 AAR 490

Telescourt v. The Commonwealth (1991) 29 FCR 227

Bisley Investment Corporation and Anor. v. Australian Broadcasting Tribunal and Anor. (1982) 40 ALR 233.

Commonwealth of Australia v. Pharmacy Guild of Australia and Anor. (1989) 91 ALR 65

Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321.

HEARING

SYDNEY, 10 March 1993

#DATE 4:5:1993

Counsel for the Applicant: G. Elliott

Solicitors for the Applicant: D.S. Nair and Co.

Counsel for the Respondent: Miss R. Henderson

Solicitors for the Respondent: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:

1. The decision under review be set aside.

2. The applicant's application for reconsideration be remitted for

determination according to law.

3. The respondent pay the applicant's costs.

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

JUDGE1

BEAZLEY J This is an appeal brought under s.44 of the Administrative Appeals Tribunal Act 1975, seeking a review of a decision of the Administrative Appeals Tribunal ("the Tribunal") in which it affirmed a decision of a delegate of the Australian Postal Corporation ("the respondent") dated 21 March 1991, affirming an earlier decision of 1 February 1991, denying liability to pay to the applicant on-going compensation from 12 December 1990, in respect of a soft tissue injury to the shoulder, pursuant to the Commonwealth Employees' Rehabilitation and Compensation Act (1988) ("the 1988 Act").

1. The applicant, who was born in 1946, had a number of periods of employment with the respondent up until 1973. In 1973, she recommenced employment with the respondent at the Redfern Post Office, initially as a Christmas casual, but remaining there until 1982 when the Redfern Post Office closed. She then moved to the State Mail Centre at Alexandria, first as a mail officer until 1985, and thereafter as a storeperson.

2. On 25 March 1987, the applicant suffered an injury at work whilst obtaining a large box of plastic re-wrap bags from a top shelf in the storeroom. In her evidence to the Tribunal, the applicant described the accident as having occurred when she was standing on the top of a ladder, on her tip toes, holding on to the ladder with her right hand and clawing at the box with her left hand. The box fell and the applicant grabbed at it with her left hand. She said that as she did so, she felt a sharp pain in her shoulder which caused her to drop the box.

3. The applicant went off work on that day, and did not return until 6 April 1987. The medical certificate, provided to support this time off work, specified "migraine" as the reason for the applicant being unfit for work. About 10 weeks later, the applicant ceased work altogether, claiming she was unable to lift her arm sidewards. She completed an accident report, dated 29 June 1987, in which she described her accident in the following terms: "In the course of my normal duties I was lifting a box of re-wrap bags down from the top shelf when I felt a pain in my left shoulder as I was holding the bags on top of my left shoulder. As I felt it was nothing major I did not report it at the time."

4. On 14 July 1987, the applicant lodged a claim for compensation, claiming she had an "aggravated injury to left shoulder and neck". She described the occurrence of the injury in these terms: "I was up on step ladder, taking a box of re-wrap plastic bags down from top shelf, when I felt sharp pain in my upper arm/shoulder area". An eye witness to the accident stated: "Lynette was on step ladder to get a carton of Plastic Bags down from the top shelf. She started to come down with the carton of Bags. She yelled out with pain coming from the left shoulder". On 19 August 1987, the applicant was granted compensation in respect of a left shoulder and neck injury.

5. After the applicant went off work, two significant non-work related events occurred. On 3 August 1987, the applicant's mother died. The applicant had not lived with her mother for 23 years. In her evidence she described a "normal grieving process" of about 1 month. In April 1988, the applicant's house was subjected to flooding and she and her husband lost furniture, carpets and personal belongings. After the flood, the applicant and her husband raised the level of their home, as they wished to continue to live in the area but did not want to experience further problems should there be flooding, the area apparently being flood prone. There have not been any further such problems.

6. On 13 March 1991, the applicant signed a "Retirement (s.59) - Form of Agreement" wherein she offered no objection to retirement from her employment on the grounds of invalidity from 15 January 1991. The grounds of invalidity were described by the delegate who retired her as being "depression, left shoulder and neck injury". The applicant gave evidence that she agreed to the invalidity retirement as she felt unable to cope with engaging in paid employment as well as unpaid domestic work.

7. The respondent ceased making payments of compensation to the applicant in December 1990, prior to the applicant's retirement. In a letter dated 1 February 1991, the applicant's solicitors were advised by the respondent that it was not satisfied that there was a liability to pay on-going compensation. The applicant sought a reconsideration of this determination, however the decision was affirmed, in the following terms, as advised to the applicant's solicitors in a letter dated 21 March 1991:
   

"(the respondent) no longer (has) any on going liability to pay compensation, in relation to any condition caused as a result of the accident of 25/3/87. There is also insufficient evidence to make me believe that there is a nexus between any psychological/psychiatric condition and her employment with Australia Post".

1. The applicant sought a review of this decision by the Administrative Appeals Tribunal which heard the application on 6 May 1992. The Tribunal was constituted by Dr. Grimes, Dr. Campbell and Mr. Coffey. The reasons for decision wrongly refer to Ms. Ettinger as a member rather than Dr. Campbell. Save for the sake of accuracy nothing turns on this. The Tribunal delivered its reasons on 20 July 1992, affirming the decision under review.

2. The applicant appeals from the Tribunal's decision on a number of bases. She alleges that in coming to its determination the Tribunal failed to have regard to relevant considerations, in that the test for a 'disease' under s.29 of the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act") was not identified or applied; that it failed to deal with a submission worthy of serious consideration; that it failed to give reasons; and that there was no evidence upon which the Tribunal could conclude as it did that it was "the opinion of medical practitioners of both respondent or (sic) applicant that there is a strong psychological element which is caused by factors unrelated to work". Counsel for the applicant, however, identified the substance of the appeal as being the failure by the Tribunal to properly deal with a submission advanced by the applicant, namely, whether the applicant suffered and continued to suffer from a somatoform pain disorder and a failure to take that matter into account. However, having regard to the submissions of counsel for the applicant and the respondent, it seems to me that the fundamental issue is whether the Tribunal gave adequate reasons for its decision.

3. The evidence that the applicant was suffering from a somatoform pain disorder, which is a recognised psychiatric disease, came from the psychiatric medico-legal evidence called on behalf of both the applicant and the respondent. Dr. Maguire, who saw the applicant on two occasions on behalf of the respondent, first diagnosed the condition. Consistent with the nature of the condition, Dr. Maguire accepted that the applicant felt pain, although apparently there was no or little organic cause to be found for this complaint of pain. In his first report of 6 September 1990, Dr. Maguire stated that in such circumstances and where treatment did not appear to provide any benefit to a patient, "one needs to carefully look at any other "life event" that may be leading to psychological stress and secondarily the complaint of pain". He did not think that any of the other medical reports had addressed this particular issue. For his part, he identified two relevant "life events" in the applicant's circumstances, the death of the applicant's mother and the flooding of her home. As to the former, he stated that "people under-going an abnormal grief reaction can develop a chronic pain syndrome which will continue unabated unless the delayed or pathological aspects of the grief reaction are addressed". He then opined that it was his strong suspicion that the death of the applicant's mother was the related "life event". He considered that the initial work injury "has merely acted as a neutral focus by which she explains her experience of pain". Dr. Maguire did not accept that her disorder "resulted from her initial injury".

4. In his oral evidence, Dr. Maguire made it clear that he was putting up the death of the applicant's mother and the flooding of her home as "potentially traumatic events that may underlie a person developing a psychiatric disorder in which they experience pain in the absence of organic pathology" (emphasis added). He also stated that he was not ruling out that the applicant could have had emotional distress, with possibly symptoms of depression or irritability, when she first had a painful disorder. Dr. Maguire did not go so far as to say that, on the balance of probabilities, either of these "life events" played a part in the contraction or aggravation acceleration or recurrence of the somatoform pain disorder.

5. Dr. McCarron, who saw the applicant at the request of her solicitors on 16 November 1990, agreed with Dr. Maguire's diagnosis of a somatoform pain disorder. He considered that Dr. Maguire had raised "a plausible theory that two life events namely her mother's death and the flooding of her house were very significant in the genesis of her psychological disorder". He also agreed that there was a significant relationship between the time of on-set of the disorder and those events. However, he saw no evidence that the patient herself perceived either of these events as causing more than transient stress and he believed that her disorder was "indeed precipitated by a genuine injury at work and thus is of itself work related".

6. The only psychiatrist who treated the applicant was Dr. Koziol from the Sydney Pain Management Centre, a multi disciplinary pain clinic. Dr. Koziol provided a medical report in which he diagnosed her as having a "Mixed Depression (reactive and biological components)". He noted that despite treatment, including psychological and behavioural intervention to provide her with better coping mechanisms, attempts at rehabilitation were considered to be futile because she "was unwilling to jeopardize (sic) her retirement on medical grounds by extending herself to outside activities". Dr. McCarron was asked about this matter. He considered the applicant's attitude "a pretty common reaction amongst people who ... have pending compensation claims and ... wouldn't think it necessarily detracts from their honesty in the case".

7. Dr. Gronow, a specialist in anaesthetics at the Sydney Pain Management Centre was called to give evidence. Dr. Gronow described the applicant as suffering "a chronic pain syndrome" which he considered had a number of physiological and psychological effects where were very disabling. The psychological effects included "mood changes, depression, frustration and anger". During the course of cross-examination by counsel for the respondent, Dr. Gronow was asked whether: "it's the view of yourself and your colleagues that Mrs. Anderson doesn't actually have ... - a psychiatric illness?" Dr. Gronow answered "No, not a psychiatric - well she did have a period where she was depressed, and so she did have a period there where she had a mixed depression, and that would be regarded as a psychiatric illness. But that has been slowly resolving, that component of it".

8. Counsel for the respondent sought Dr. Gronow's reaction to notes from the Centre which indicated that "the patient has resisted the suggestion that she try some voluntary activity or rehabilitation". Dr. Gronow said: "... she was referred at one stage to the Commonwealth Rehabilitation Service, and there was (sic) difficulties in identifying what they would be able to achieve in any rehabilitation program". Counsel for the respondent sought Dr. Gronow's agreement to the proposition that Mrs. Anderson did not want to undertake any voluntary work lest she compromised her position with Australia Post. However, Dr. Gronow did not agree with this proposition. He said "I'm not sure that was the stated reason, there was some resistance in whether she would be able to do that. At the time I think that was when she was still fairly distressed and depressed". Counsel for the respondent returned to this matter again in relation to the applicant's alleged unwillingness to co-operate in rehabilitation or to undertake volunteer work. Dr. Gronow reiterated his evidence that she did have some difficulty with doing so but that was based "in her psychological context at the time". He did not agree that her actions suggested an unwillingness to co-operate in treatment. He recalled that the applicant's recorded attitude to Australia Post and volunteer work occurred at a time when she was aware that she was being followed and filmed by private investigators. In response to a question by counsel for the respondent that if a person was "genuinely impaired" a film would do no harm Dr. Gronow said "... I think anyone who sees people sitting outside their door, on the street with a camera, whether they're injured or not injured, is highly stressed by it because the interpretations that are often laid upon those findings ... are often misconstrued". He gave evidence that he had been requested to review film of the applicant and had formed the view that others who viewed the film on behalf of the respondent put interpretations on it which could not be sustained. Indeed his evidence was: "(the applicant) was filmed and it was misconstrued so I think there was validity in her belief".

9. It was clear from the whole of Dr. Gronow's evidence that he considered that the applicant's disability commenced with her injury at work, and she then had a psychological response to her physical condition, which at one stage was regarded as a psychiatric illness, although that part of it had been resolving.

10. The Tribunal commenced its reasons for decision by identifying the issues before it as: whether the applicant had suffered a soft tissue injury to her left shoulder and neck on 25 March 1987 within the meaning of s.27 of the 1971 Act and if so, whether the injury caused incapacity for work after 12 December 1990, through the applicant's physical condition, the development of a psychological complication secondary to the injury or the pain and incapacity resulting from the injury, or thirdly from the effects of reasonable medical treatment pursuant to s.14 of the 1988 Act.

11. Having identified the issues, the Tribunal, in paragraphs 4 to 20 of the reasons, summarised the applicant's evidence. In paragraph 20 the Tribunal observed that "Counsel for the Respondent made the point that the Applicant's account of the accident had become more elaborate as time passed. Originally she made no mention of the box falling and striking her, in contrast to her evidence before the Tribunal". Except for this passage, the Tribunal proceeded in a narrative and uncritical way and did not make any specific finding of fact. This in itself is not critical. As Lockhart J said in Bisley Investment Corporation and Anor. v. Australian Broadcasting Tribunal and Anor. 40 ALR 233 at 251,
    

"It is true that in the course of its lengthy reasons for decision the Tribunal did not say expressly that it made particular findings of fact; but it referred to many matters of fact relevant to the issues before it. Plainly the Tribunal regarded these matters as relevant and material; otherwise it is difficult, if not impossible, to conceive why any reference was made to them at all".

1. His Honour's observation undoubtedly applies in relation to the Tribunal's references to the applicant's personal details and work history with the respondent. However, the Tribunal's reference to the alleged inconsistencies in the applicant's evidence does not crystallise into any finding as to how the accident occurred, or as to the applicant's credibility, although it is possible that the passage in paragraph 20, to which I have referred, does reflect adversely on the applicant's credit.

2. Next, in paragraphs 21 to 36, the Tribunal summarised certain of the medical evidence given by the various doctors for both the applicant and the respondent. It made no findings in respect of the medical evidence in these paragraphs, save for an apparent finding in paragraph 33 in these terms:
   

"33. Counsel for the Respondent submitted that the Applicant was reluctant to engage in rehabilitation and more particularly undertake a programme of voluntary work which was recommended by the Sydney Pain Management Clinic until her compensation claim was settled. The Tribunal believes that the Applicant's reluctance stemmed from the fact that she was aware that she had been under video surveillance and had legitimate concerns about jeopardising her claim. Australia Post had the Applicant under surveillance on 13 and 16 January 1989, 6 and 10 February 1989. It was on the last two occasions that video tape was exposed."

1. It is unclear what the Tribunal meant by the applicant having "legitimate concerns about jeopardising her claim". Counsel for the respondent submitted that the Tribunal meant that the applicant was concerned that her claim for compensation would be jeopardised because she was aware that her disability was not as she was alleging and this would be exposed on the video recording. In other words, this was an adverse finding as to her credit. Having regard to the Tribunal's conclusion in paragraph 38 to which I shall turn shortly, this may be the correct interpretation. However, if one looks at the oral evidence of Dr. Gronow, it is possible that the Tribunal was adopting his view that the applicant's reaction to the surveillance was reasonable, given that a wrong interpretation could be given to video material obtained during the course of such surveillance.

1. The Tribunal does not refer at all to Dr. Koziol's evidence, although as I have said the Tribunal did refer to the evidence of Dr. Gronow, who was called to give evidence in respect of the applicant's treatment at the Sydney Pain Management Centre. More significantly, the Tribunal does not state whether it accepts that the applicant was suffering from a somatoform pain disorder or indeed from any psychiatric disease, or had at any stage so suffered from that disorder or any psychiatric disease.

2. Finally, in paragraphs 37 and 38 the Tribunal set out its conclusion in the following terms:
   

"37. The Tribunal finds that the lack of radiological or clinical evidence of a neurological or orthopaedic lesion in the Applicant's cervical spine found by any doctor supports the proposition that the incident caused a soft tissue injury, the effect of which would have passed. The lack of muscle wasting of the affected shoulder and arm as indicated supports the view that she is capable of using and has been using the shoulder and arm relatively normally.

38. The Applicant's delay in reporting of the incident, the inconsistencies in the (sic) her accounts of it and her reluctance to undertake rehabilitation are in the view of the Tribunal consistent with the opinion of medical practitioners of both Respondent or (sic) Applicant that there is a strong psychological element which is caused by factors unrelated to work."

1. Counsel for the applicant submitted that paragraph 37 was the Tribunal's finding in respect of the applicant's physical condition and paragraph 38 was its finding in relation to her psychiatric condition. However, it was submitted, the Tribunal failed to consider the issue of whether the applicant's employment had contributed to that state. Rather it had adopted a "direct cause" test without considering whether work factors played any contributing role.

2. Counsel for the respondent, on the other hand, submitted that the effect of these paragraphs was that the Tribunal found that the applicant was not suffering from any on-going physical incapacity and further that she was not suffering from any psychiatric condition. She submitted that the most the Tribunal was prepared to find was that "there is a strong psychological element which is caused by factors unrelated to work". The finding that the applicant was able to use her arm relatively normally was fatal to the applicant's case that she was suffering from a somatoform pain disorder. This was because, even though there was no physical reason for the pain, the fact that a person felt pain meant that the concomitants of pain would be obvious, such as muscle wasting through lack of use due to perceived pain. Counsel for the respondent further submitted that the finding in paragraph 38 that there was a strong psychological element caused by factors unrelated to work was based on the evidence of Dr. Gronow and was not referable to the evidence of Drs. McCarron or Maguire.

3. It is difficult to know whether the Tribunal's finding is as submitted by counsel for the respondent. I had originally read paragraph 38 as constituting a finding which accepted Dr. Maguire's evidence in its entirety, that is, that the applicant was suffering a psychiatric illness unrelated to work factors, with the Tribunal engaging in some looseness of language with the use of the phrase "psychological complication". However, if counsel for the respondent is correct, it means that Dr. Maguire's evidence that the applicant is suffering a psychiatric illness, namely a somatoform pain disorder, has been rejected. On the other hand, if paragraph 38 does constitute a finding that there was no psychiatric element, but is an acceptance of Dr. Gronow's evidence, I do not consider that it is an accurate finding in respect of that evidence. That, of course, would not be sufficient for the applicant to succeed. A wrong finding of fact does not constitute an error of law: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. However, I am far from satisfied that this is the proper construction to be put on the paragraph.

4. The Tribunal has a statutory obligation to make findings on material questions of fact, to refer to the material upon which those findings are based and to provide reasons for its decision (s.43 of the Administrative Appeals Tribunal Act 1975). A failure by the Tribunal to do so constitutes an error of law. Dornan and Ors. v. Riordan and Ors. (1990) 24 FCR 564; Australian Telecommunications Commission v. Barker (1990) 12 AAR 490; Telescourt v. Commonwealth (1991) 29 FCR 227; Bisley Investment Corporation and Anor. v. Australian Broadcasting Tribunal and Anor. (1982) 40 ALR 233). In an illuminating passage in Commonwealth of Australia v. Pharmacy Guild of Australia and Anor. (1989) 91 ALR 65 at 88, Sheppard J described the basis for the requirement that reasons be provided in these terms:
   

"Reasons are required to inform the public and parties with an immediate interest in the outcome of the proceedings of the manner in which the tribunal's conclusions were arrived at. A purpose of requiring reasons is to enable the question whether legal error has been made by the tribunal to be more readily perceived than otherwise might be the case. But that is not the only important purpose which the furnishing of reasons has. A prime purpose is the disclosure of the tribunal's reasoning process to the public and the parties."

1. It seems to me that the confusion surrounding the correct meaning of paragraph 38 demonstrates that the Tribunal's reasoning process is not adequately exposed so as to satisfy its statutory obligation to give reasons. In my opinion, it is not possible from the reasons for decision to determine what it is that the Tribunal decided nor why it has come to the conclusions which are recorded in paragraph 38. That of itself is sufficient to set the decision aside.

2. However, there is the further argument made by counsel for the applicant that the Tribunal does not, at any stage, discuss the appropriate test under which the applicant is entitled to compensation, nor does it refer to the section under which the applicant is entitled to compensation, so that there is nothing in the reasons from which it can be inferred or deduced that the Tribunal applied the correct test. The statutory basis which governs the applicant's entitlement to compensation is found in the provisions of the 1971 Act and the 1988 Act, and in particular, the combined operation of ss.27 and 29 of the 1971 Act. Section 27 provides that the Commonwealth is liable to pay compensation if an employee sustains a personal injury arising out of or in the course of employment. Pursuant to s.29, where the employment of an employee of the Commonwealth contributes to the contraction of a disease or the aggravation, acceleration or recurrence of a disease and the employee suffers partial or total incapacity, the contraction of the disease or its aggravation, acceleration or recurrence is deemed to be an injury for the purposes of s.27. See Delahunty v. Commonwealth (1981) 53 FLR 9. To the extent that there is any reference by the Tribunal to this matter, it is found in the identification of the issues, where the Tribunal asked itself whether the incapacity from which the applicant was allegedly suffering was caused by a psychological complication. I have already averted earlier to the possibility of looseness of expression in respect of the phrase "psychological complication". Counsel for the applicant however, was not so concerned with this as with the use of the word "cause" as an indication that the Tribunal did not apply the correct test under section 29. In my opinion, it is not possible to know from the reasons whether the Tribunal understood the statutory test under s.29. This provides another basis for finding that the Tribunal has failed to give adequate reasons for its decision.

3. I have dealt with the matter so far on the basis of a failure to give reasons. Because of the inadequacy of the reasons, it is not possible to know whether the Tribunal did give any consideration to a central issue in the case, namely whether the applicant was suffering from a somatoform pain disorder. It is thus not necessary to separately consider this issue. Nor in my opinion is it necessary to consider the other grounds of appeal as I consider that they are subsumed in the fundamental failure to give reasons.

4. Accordingly, I make the following orders:
   1. The decision under review be set aside. 2. The applicant's application for reconsideration be remitted for
   

determination according to law.

3. The respondent pay the applicant's costs.