Australian Postal Corporation v Chalkley

[2010] FCA 342

FEDERAL COURT OF AUSTRALIA

Australian Postal Corporation v Chalkley [2010] FCA 342

Citation:

Australian Postal Corporation v Chalkley [2010] FCA 342

Appeal from:

Chalkley and Australian Postal Corporation [2009] AATA 558

Parties:

AUSTRALIAN POSTAL CORPORATION v TANYA GAIL CHALKLEY

File number:

NSD 918 of 2009

Judge:

EDMONDS J

Date of judgment:

14 April 2010

Catchwords:

WORKERS’ COMPENSATION—Appeal from the Administrative Appeals Tribunal—whether the respondent is entitled to payments pursuant to ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for injuries sustained whilst carrying out her duties as a postal delivery officer for the applicant—whether the Tribunal had incorrectly diagnosed the respondent—whether the Tribunal failed to consider the applicant’s submissions—whether the Tribunal had wrongly treated the applicant’s prior acceptance of liability and payments as estoppel or as relevant to the question of liability—whether the Tribunal had considered the irrelevant consideration of the effect of medical examinations for medico-legal purposes on the respondent.

Held: Appeal dismissed; the respondent is entitled to payments pursuant to ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth); the Tribunal did not incorrectly diagnose the respondent; the Tribunal did not fail to consider the applicant’s submissions; the Tribunal did not treat the applicant’s prior acceptance of liability and payments as constituting estoppel or as relevant to the question of liability; and the Tribunal did not consider irrelevant considerations.

Legislation:

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 16, 19

Cases cited:

Commonwealth Banking Corporation v Percival (1988) 20 FCR 176 cited

Date of hearing:

19 November 2009

Place:

Sydney

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

38

Counsel for the Applicant:

Ms RM Henderson

Solicitor for the Applicant:

Graham Jones Lawyers

Counsel for the Respondent:

Mr D Richards

Solicitor for the Respondent:

Slater & Gordon

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 918 of 2009

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	AUSTRALIAN POSTAL CORPORATION Applicant
AND:	TANYA GAIL CHALKLEY Respondent

JUDGE:	EDMONDS J
DATE OF ORDER:	14 APRIL 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The applicant pay the respondent’s costs of the appeal as taxed or agreed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 918 of 2009

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	AUSTRALIAN POSTAL CORPORATION Applicant
AND:	TANYA GAIL CHALKLEY Respondent

JUDGE:	EDMONDS J
DATE:	14 APRIL 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an appeal from a decision of the Administrative Appeals Tribunal (Mr MD Allen SM) (‘the Tribunal’), [2009] AATA 558, setting aside a decision, affirming a prior determination, that the respondent (‘Mrs Chalkley’) had no present entitlements pursuant to ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’) in respect of the incident described below. The Tribunal remitted the matter (No. 2008/3429) to the applicant (‘Australia Post’) with the direction that Mrs Chalkley remains entitled to payments pursuant to ss 16 and 19 of the SRC Act.

2. The Tribunal had also affirmed a decision, which affirmed a prior determination, that Mrs Chalkley was not entitled to the payment of a denervation procedure (No. 2007/4708).  No evidence was adduced by Mrs Chalkley and she consented to the decision being affirmed.  There is no appeal from the Tribunal’s decision in this matter.

   THE INCIDENT

3. On 21 May 2001, whilst carrying out her duties as a postal delivery officer for Australia Post, Mrs Chalkley was riding a motorcycle and in so doing ran into a power cable lead passing from the back of a workman’s truck to the frame of a dwelling house which was under construction.

4. The cable caught the peak of the motorcycle helmet she was wearing and jerked her head backwards.  Fortunately she was able to maintain her control of the motorcycle and brought it to a halt without falling off.

5. She was shocked and upset at the time and on her return to her depot informed her occupational health and safety officer and made a claim for compensation on the basis, as she put it, ‘in case something happened’.

6. Over the next couple of days Mrs Chalkley continued to work but found she began to experience neck pain which worsened.  She contacted her general practitioner but some days elapsed before that general practitioner was able to make an appointment.

   BACKGROUND

7. On 6 June 2001, Australia Post accepted liability pursuant to s 14 of the SRC Act for ‘neck and shoulder muscle strain’. Various payments were then made for medical treatment and loss of earnings pursuant to ss 16 and 19 of the SRC Act.

8. Mrs Chalkley received medical treatment for her physical condition for several years, initially from Dr Kuru, but principally from Dr Schwarzer, who performed nerve blocks and denervation procedures between May 2005 and April 2007.

9. On 23 November 2006, Mrs Chalkley was examined by Dr McGill, a rheumatologist, at Australia Post’s request.  Dr McGill diagnosed ‘degenerative change in the cervical spine (cervical spondylosis) including disc degeneration and facet joint disease’ and also commented that it was ‘very likely she is currently depressed’.  Australia Post notified Mrs Chalkley on 10 January 2007 that:

   ‘Based on Dr McGill’s report, please be advised that the diagnosis of your injury will now reflect “aggravation of pre-existing constitutional condition – cervical spondylosis”.’

   In the same correspondence, Australia Post invited Mrs Chalkley to submit a fresh compensation claim if she wished to claim compensation for a psychological condition.

10. On 20 January  2007, Mrs Chalkely claimed compensation for ‘depression (secondary to injury)’.  She was examined at Australia Post’s request by Dr Lovric, a psychiatrist, and on 8 February 2007, Dr Lovric reported that Mrs Chalkley was suffering from an adjustment disorder with depressed mood.  On 1 March 2007, Australia Post notified Mrs Chalkley that:

    ‘[T]he diagnosis of your injury will now reflect “aggravation of pre-existing constitutional condition – cervical spondylosis and adjustment disorder with depressed mood”.’

11. On 6 June 2008, Australia Post determined that it had no present liability under ss 16 and 19 of the SRC Act in respect of the incident. That decision was affirmed on reconsideration on 30 June 2008 and Mrs Chalkley applied to the Tribunal for a review.

    IN THE TRIBUNAL

12. The documents filed by Australia Post pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) included reports prepared by various specialist medical practitioners. The practitioners were, in alphabetical order:

    ·Professor Beran (neurologist)

    ·Dr Best (orthopaedic surgeon)

    ·Dr Bracken (orthopaedic surgeon)

    ·Dr Burke (occupational medicine)

    ·Dr Chase (occupations physician)

    ·Dr Gorman (consulting physician and pain management)

    ·Dr Graham (occupational medicine)

    ·Dr Kuru (spinal and orthopaedic surgeon)

    ·Dr Lovric (psychiatrist)

    ·Dr Maxwell (orthopaedic and spinal surgeon)

    ·Dr McGill (consultant rheumatologist)

    ·Dr Muratore (sports physician)

    ·Professor Oakeshott (consulting surgeon)

    ·Dr Phillips (psychiatrist)

    ·Dr Pierides (occupational medicine)

    ·Dr Russo (pain medicine)

    ·Dr Schwarzer (rheumatology, musculoskeletal and pain medicine)

13. At the commencement of the Tribunal hearing, the Tribunal gave the parties access to records produced under summons by Mrs Chalkley’s general practitioner, Dr Hindley.  Mrs Chalkley tendered a report that was included in those records, namely, the report of Dr Newton-John, a clinical psychologist, dated 12 May 2008.

14. Australia Post tendered a report of Dr McGill dated 4 June 2009.

15. The Tribunal heard oral evidence from:

    ·The respondent

    ·Dr Bracken (orthopaedic surgeon)

    ·Dr McGill (consultant rheumatologist)

    ·Professor Beran (neurologist)

16. As noted in [1] above, the Tribunal set aside Australia Post’s decision and remitted the matter to Australia Post with a direction that Mrs Chalkley ‘remains entitled to payments pursuant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988’.

    THE TRIBUNAL’S CONCLUSION

17. At [48] of its reasons, the Tribunal concluded:

    ‘Whatever may be the state of [Mrs Chalkley’s] neck at present, I am satisfied that she continues to suffer pain as a result of a chronic pain syndrome and that the cause of that pain syndrome is the motorcycle accident on 21 May 2001.’

18. It reiterated this at [50] of its reasons, as follows:

    ‘For the reasons given above I am satisfied that [Mrs Chalkley] does have an ongoing pain syndrome which was caused by the 21 May 2001 injury.’

    THE APPEAL

19. This conclusion is assailed by Australia Post as being infected with legal error on a number of grounds set out in its notice of appeal.

    Ground (a)

20. This ground provides:

    ‘The Tribunal purported to diagnose [Mrs Chalkley] as suffering from “chronic pain disorder”.  The Tribunal did not possess the expertise to make that purported diagnosis, and there was no evidence before the Tribunal to support that purported diagnosis.’

21. In its written submissions at [19], Australia Post contended:

    ‘In its [r]easons at [47] the Tribunal attributed a diagnosis of chronic pain syndrome to the psychiatrist Dr Lovric (who was not a treating practitioner), and also said that the syndrome had been “alluded to” by the psychologist Dr Newton-John.  The Tribunal was wrong, in both instances.  Both Dr Lovric and Dr Newton-John used the expression “chronic pain” in their respective reports, but they did so in the course of describing symptoms, and not by way of a diagnosis.  Dr Lovric’s diagnosis was “adjustment disorder with depressed mood”.  Dr Newton-John said that the respondent would not currently meet the criteria for a diagnosis of depression; he made no alternative diagnosis in his report.’

22. In its oral submissions, Australia Post conceded:

    ‘[A]s my learned friend has pointed out, that the words “chronic pain” do appear in certain reports which were before the tribunal … But we do not concede that one can equate chronic pain, which is a description of a symptom of a disorder, [as] an indication that a particular condition called “chronic pain syndrome” is actually being debated before the tribunal.’

23. Reading [48] and [50] of the Tribunal’s reasons, in context that is, from [42] onwards and, in particular [47], I am not persuaded that the Tribunal purported to diagnose Mrs Chalkley as suffering from ‘chronic pain disorder’.  There is no doubt that in [48] the Tribunal’s wording is perhaps unhelpful in that it seems to conflate the symptom ‘chronic pain’ with a particular condition ‘chronic pain syndrome’ which has not been diagnosed as the injury or illness, but that has more to do with the Tribunal’s misdescription of Dr Lovric’s diagnosis in [47] than with the Tribunal understanding its own diagnosis.  And a misdescription of Dr Lovric’s diagnosis is not an error of law.  Moreover, as was said by a Full Court in Commonwealth Banking Corporation v Percival (1988) 20 FCR 176 at 179 – 180:

    ‘No doubt, for many medical purposes, it is useful and often necessary to distinguish between the underlying pathology of a disease and mere symptoms of the disease. For some legal purposes, for example s 104(2) of the Act, the distinction is also pertinent: see Johnston v Commonwealth (1982) 150 CLR 331 at 341–3. But that is not to say that the symptoms of a disease are not a part of the disease. It is indeed fundamental to compensation law that a symptom of an injury or disease is a part of the condition in respect of which compensation for incapacity is granted. Pain is probably the most common symptom of injury or disease. It is equally the most common factor leading to compensable incapacity.’

    A passage which was quoted by the Tribunal in its reasons at [39].

24. In my view, ground (a) is not made out.

    Ground (b)

25. This ground provides:

    ‘The Tribunal did not disclose to [Australia Post] that it had made a purported diagnosis of “chronic pain disorder” and did not afford [Australia Post] any opportunity to call evidence or to make submissions regarding that purported diagnosis.’

26. It fails on the back of the failure of ground (a).

    Ground (c)

27. This ground provides:

    ‘The tribunal failed to deal with a submission advanced by [Australia Post] that was worthy of serious consideration, namely the submission that [Mrs Chalkley’s] current physical symptoms are attributable to degenerative change, and not to an incident that occurred on 21 May 2001.’

28. In my view, this ground has no foundation.

29. At [42] and [43] of its reasons, the Tribunal said:

    ‘42.     [Australia Post] submitted that if [Mrs Chalkley] was suffering any psychiatric illness as a result of her ongoing neck pain, and if that pain was caused by the non compensable degenerative condition, then any psychiatric illness arising out of that pain was likewise non compensable.

    43.      This submission is predicated upon a finding that any current psychiatric condition is caused by the current pain. However, in her report to [Australia Post] of 8 February 2007, Dr Lovric clearly states:

    “On the balance of probabilities, the circumstance which has given rise to the Adjustment Disorder with Depressed Mood has been the incident of 21 May 2001 and the chronic pain which was precipitated by that accident. I find no non-work related factor which would have contributed to the development of her Adjustment Disorder.”

    And at page 12 of her report states that [Mrs Chalkley] may continue to suffer from chronic pain. Dr Phillips, psychiatrist, was of a similar opinion.’

30. The Tribunal clearly dealt with the submission advanced by Australia Post and, on the evidence, concluded otherwise.

    Ground (d)

31. This ground provides:

    ‘The Tribunal treated [Australia Post’s] acceptance of liability for adjustment disorder with depressed mood, and its decision to pay for twelve therapy treatments, as estopping it from disputing its liability to pay compensation for any psychiatric disorder suffered by [Mrs Chalkley] on and after the date of the decision under review.  Alternatively, the Tribunal treated that acceptance of liability and that payment for therapy treatments as a relevant consideration that it was entitled to take into account when determining whether [Australia Post] is liable to pay compensation for any psychiatric disorder suffered by [Mrs Chalkley] on or after the date of the decision under review.’

32. The paragraph of the Tribunal’s reasons the subject of this ground is [44] where the Tribunal observes:

    ‘By a decision dated 1 March 2007, [Australia Post] amended [Mrs Chalkley’s] diagnosis of compensable injury to read:

    “aggravation of pre-existing constitutional condition – cervical spondylosis and adjustment disorder with depressed mood.”

    [Australia Post] subsequently paid for twelve sessions of cognitive therapy.’

33. But this observation, without more, does not involve the Tribunal treating such acceptance of liability and decision to pay as estopping Australia Post from disputing its liability and Australia Post accepted as much.  At para 23 of its written submissions it says:

    ‘Though not explicitly stated, the reasoning of the Tribunal at that point appears to be …’

    In my view, it is not possible to read [44] of the Tribunal’s reasons as treating Australia Post’s acceptance of liability and decision to pay as estopping Australia Post from disputing its liability.

34. Nor, in my view, can one read [44] of the Tribunal’s reasons as the Tribunal taking those matters into account as a relevant consideration in determining the task before it; the matters of acceptance of liability and decision to pay are merely stated as having occurred.

    Ground (e)

35. The ground provides:

    ‘The Tribunal failed to exclude from its considerations an irrelevant consideration, namely, the reaction of [Mrs Chalkley] to attending examinations for medico-legal purposes.’

36. Australia Post’s written submissions on this ground relevantly read:

    ‘27.In its [r]easons at [9] the Tribunal expressed “total agreement” with concerns expressed by Professor Beran regarding the number of medical practitioners that [Mrs Chalkley] had been “forced to attend for medicolegal purposes” and [Mrs Chalkley’s] object[ion] to the intrusive nature of the ongoing dispute”.

    28.      The Tribunal continued at [10]:

    In addition, a confounding element has been that [Mrs Chalkley] has attended medico-legal consultations arising from common law action taken by Australia Post against the third party it alleged was responsible for the injuries received by [Mrs Chalkley] on 21 May 2001.

    29.The Tribunal gave prominence to these matters, and they informed the conclusions that it ultimately drew in relation to the respondent’s continuing entitlement to compensation.  The Tribunal should, however, have explicitly excluded those matters from its consideration because they were not causally connected with the respondent’s employment.’

37. I do not agree that these matters informed the conclusions the Tribunal ultimately drew. They were observations made very early on in the Tribunal’s reasons and were not adverted to as part of the Tribunal’s reasoning or analysis which, as submitted by Australia Post’s own counsel, only started at about [34].

    CONCLUSION

38. The appeal must be dismissed with costs.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:

Dated:        14 April 2010