Australian Postal Corporation v Edwards

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FEDERAL COURT OF AUSTRALIA

Australian Postal Corporation v Edwards [2014] FCA 1348

Citation: Australian Postal Corporation v Edwards [2014] FCA 1348
Parties: AUSTRALIAN POSTAL CORPORATION v VICKY EDWARDS
File number: QUD 22 of 2014
Judge: COLLIER J
Date of judgment: 10 December 2014
Catchwords: ADMINISTRATIVE LAW – application for review of decision of Administrative Appeals Tribunal setting aside decision of a delegate of the applicant finding applicant not liable to pay employee respondent compensation pursuant to s 16 and s 19 Safety, Rehabilitation and Compensation Act 1988 (Cth) – s 44(1) Administrative Appeals Tribunal Act 1975 (Cth) – applicant also seeking relief pursuant to s 39B Judiciary Act 1903 (Cth) – Tribunal member preferred medical evidence of orthopaedic surgeon favouring respondent’s case over evidence of two orthopaedic surgeons supporting applicant’s case – whether respondent’s condition constitutional or caused by workplace activity – whether amended notice of appeal states valid questions of law – whether Tribunal failed to give adequate reasons for decision – whether Tribunal gave proper consideration to medical evidence of orthopaedic surgeons supporting applicant’s case – whether Tribunal failed to take into account relevant factor that one orthopaedic surgeon the respondent’s treating doctor – whether decision of Tribunal afflicted by legal unreasonableness – Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 43(2), 43(2A), 43(2B), 44(2B)
Judiciary Act 1903 (Cth) s 39B
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 16, 19
Cases cited: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Commissioner of Taxation v Osborne (1990) 26 FCR 63
Hamidi v Minister of Immigration and Ethnic Affairs (unreported, Hill J, 26 July 1996)
Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291; [1987] FCA 457
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1996) 162 CLR 24
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141; [2001] FCA 744
Nelson v Commissioner of Taxation [2014] FCAFC 163
Rawson Finances Pty Ltd v Commissioner of Taxation (2013) 133 ALD 39; [2013] FCAFC 26
Reece v Webber [2011] FCAFC 33
Repatriation Commission v Owens (1996) 70 ALJR 904
Sylvan Health Pty Ltd v Minister for Health and Ageing [2010] FCAFC 121
Date of hearing: 16 May 2014
Place: Brisbane
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 56
Counsel for the Applicant: Mr M Robinson SC with Mr M Gollan
Solicitor for the Applicant: Sparke Helmore
Counsel for the Respondent: Mr M Black
Solicitor for the Respondent: Maurice Blackburn

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 22 of 2014
BETWEEN:

AUSTRALIAN POSTAL CORPORATION
Applicant
AND:

VICKY EDWARDS
Respondent

JUDGE:

COLLIER J

DATE OF ORDER:

10 DECEMBER 2014

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

The application be dismissed…

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Details
Case
[2014] FCA 1348
Decision Date

CaseChat Overview and Summary

The applicant, Australian Postal Corporation, appealed against a decision of the Administrative Appeals Tribunal which had set aside a decision of a delegate of the applicant finding the applicant not liable to pay compensation to the respondent, Ms Edwards, pursuant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). The Tribunal had preferred the medical evidence of Dr Wallace, an orthopaedic surgeon, over the evidence of two other orthopaedic surgeons, Dr Saxby and Dr Nihal, who supported the applicant’s case. The Tribunal had found that Ms Edwards’ condition was related to her workplace injury. The applicant argued that the Tribunal had failed to give lawful reasons for its decision, had not given proper consideration to the medical evidence of Dr Saxby and Dr Nihal, and that its decision was unreasonable.

The court considered whether the Tribunal had failed to give reasons for its decision as required by section 43 of the Administrative Appeals Tribunal Act 1975 (Cth). The court noted that the Tribunal had given reasons for preferring the evidence of Dr Wallace to that of Dr Saxby (and, by implication, Dr Nihal). The court also considered whether the Tribunal had given proper consideration to the medical evidence of Dr Saxby and Dr Nihal. The court found that the Tribunal had considered the evidence of all three surgeons and had given reasons for preferring the evidence of Dr Wallace. The court further considered whether the Tribunal’s decision was unreasonable. The court found that the Tribunal’s decision had a foundation in the evidence and was open, having regard to Dr Wallace’s evidence.

The court dismissed the application and held that the Tribunal had not failed to give lawful reasons for its decision, had given proper consideration to the medical evidence of Dr Saxby and Dr Nihal, and that its decision was not unreasonable. The application was dismissed with costs.

Orders

Orders of the court

The application be dismissed with costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

I turn now to the substantive issues raised in this matter. Background The background facts are set out in the decision of the Tribunal. It is convenient to repeat the key facts which are not in dispute. Ms Edwards has been employed by APC since October 2006. On 10 February 2012 Ms Edwards was on duty pushing a heavy wheeled bin (known as a “ULD”) down a slight slope. According to Ms Edwards, she pushed the ULD off with both her feet and upon doing so felt what she described as “an immediate burning sensation” in her “right Achilles area”. She stated that the ULD went off quite suddenly and she had to pull the handle of a pallet jack to stop it. She then claimed to have felt “an aching type pain” in her “left Achilles that came and went”. Ms Edwards took her break and reported the incident to her manager. After this she was taken to a first aid room and ice was applied to her ankles. On 11 February 2012 Ms Edwards consulted a doctor and was certified as being unfit for work on that day and the following day. On 13 February 2012 she returned to work and was advised by her manager to sit down and do manual sorting for the day. On 14 February 2012 the facility doctor placed her on restricted seating duties. The Tribunal member found that while she performed those duties on 14 and 15 February 2012 she still had severe pain. On 16 February Ms Edwards went to see another doctor and was given a medical certificate for two days off work due to an ear infection. On 21 February 2012 she saw a doctor who gave her a medical certificate recommending she rest from 21 February 2012 to 27 February 2012. On 2 April 2012 Ms Edwards returned to work, performing duties that did not require lifting anything heavier than 5kg. In March 2012 Ms Edwards consulted Dr Aneel Nihal, an orthopaedic surgeon, who referred Ms Edwards to physiotherapy and anti-inflammatory medication. Ms Edwards’ condition did not improve and in August 2012 Dr Nihal recommended that Ms Edwards undergo surgery. On 8 January 2013 APC ceased paying compensation for Ms Edwards’ “bilateral Achilles conditions”.Medical evidence before the Tribunal The evidence before the Tribunal regarding Ms Edwards’ medical condition consisted of the reports of three orthopaedic surgeons, namely Dr Malcolm Wallace, Dr Terence Saxby and Dr Aneel Nihal. It is useful to highlight the key findings of each of the surgeons. In his report dated 22 June 2013, Dr Wallace stated that:·Ms Edwards suffers from bilateral Achilles Tendonitis;·Ms Edwards has been appropriately investigated and treated conservatively;·surgical treatment would likely make Ms Edwards’ condition worse if undertaken;·ongoing treatment should consist of simple analgesics, anti-inflammatory agents, a heel raise and the avoidance of aggravating activities;·Ms Edwards had reached “maximum medical improvement”;·Ms Edwards would not be able to return to the type of work which she was doing before or which involves any type of pushing or pulling; and·Ms Edwards would be able to do other lighter manual, supervisory or sedentary work.

Evidence

Evidence Before The Court

On 8 January 2013 APC ceased paying compensation for Ms Edwards’ “bilateral Achilles conditions”.Medical evidence before the Tribunal The evidence before the Tribunal regarding Ms Edwards’ medical condition consisted of the reports of three orthopaedic surgeons, namely Dr Malcolm Wallace, Dr Terence Saxby and Dr Aneel Nihal. It is useful to highlight the key findings of each of the surgeons. In his report dated 22 June 2013, Dr Wallace stated that:·Ms Edwards suffers from bilateral Achilles Tendonitis;·Ms Edwards has been appropriately investigated and treated conservatively;·surgical treatment would likely make Ms Edwards’ condition worse if undertaken;·ongoing treatment should consist of simple analgesics, anti-inflammatory agents, a heel raise and the avoidance of aggravating activities;·Ms Edwards had reached “maximum medical improvement”;·Ms Edwards would not be able to return to the type of work which she was doing before or which involves any type of pushing or pulling; and·Ms Edwards would be able to do other lighter manual, supervisory or sedentary work. In his report dated 23 August 2013, Dr Wallace stated that:·Ms Edwards’ condition is as a result of a workplace injury; and·Ms Edwards’ incapacity for work has resulted from the conditions described in his earlier report as it will involve pulling, pushing and physical work. In his report dated 10 May 2012, Dr Saxby stated:·Ms Edwards’ condition was right Achilles tendinopathy, right much greater than left;·he believed Ms Edwards’ condition to be a pre-existing (constitutional) condition;·Ms Edwards’ work environment including pushing trolleys could be an aggravating factor;·Ms Edwards had been treated appropriately for this and it appeared that her aggravation had settled;·Ms Edwards should be able to gradually increase her hours and return to normal duties; and·Ms Edwards has an underlying problem in her Achilles tendon and this may cause ongoing troubles in the future, but at that stage her aggravation had been dealt with appropriately. Dr Saxby was asked by APC to provide a further report, and was briefed with the two reports of Dr Wallace. In his subsequent report dated 10 September 2013, Dr Saxby stated that:·his opinion remained unchanged after examining the reports of Dr Wallace;·Ms Edwards had been treated appropriately for the particular aggravation and it would be expected that that aggravation would settle;·he believed that any ongoing problems at that stage would be related to the underlying degenerative condition rather than any work-related activity; and·any permanent impairment is a result of the underlying condition rather than any work-related component. In his report dated 12 September 2012, Dr Nihal stated that:·he agreed with Dr Saxby’s comments that Ms Edwards’ “Achilles nodular degeneration” was pre-existing and constitutional;·heavy work involvement and pushing of trolleys could be considered an aggravating factor;·aggravation of Achilles tendonitis, when treated non-surgically, usually takes about 6-8 months to settle; and·he agreed with Dr Saxby that Ms Edwards has underlying degenerative problems in both Achilles tendons and this would give her ongoing pain, discomfort and trouble in the future if she continued to be involved in heavy work.

Decision

Reasons for decision

Section 43(2), (2A) and (2B) of the AAT Act provide:Tribunal must give reasons for its decision(2)Subject to this section and to sections 35 and 36D, the Tribunal shall give reasons either orally or in writing for its decision.(2A)Where the Tribunal does not give reasons in writing for its decision, a party to the proceeding may, within 28 days after the day on which a copy of the decision of the Tribunal is given to that party, request the Tribunal to give to that party a statement in writing of the reasons of the Tribunal for its decision, and the Tribunal shall, within 28 days after receiving the request, give to that party such a statement.(2B)Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. In considering the obligation of the Tribunal under these sections, it is important for the Court to keep in mind the fact that the Tribunal’s reasons should be measured in a reasonable and realistic way, rather than with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Sylvan Health Pty Ltd v Minister for Health and Ageing [2010] FCAFC 121 at [44]. APC submits that the Tribunal failed to give reasons why it preferred the evidence of Dr Wallace over the “overwhelming evidence of Dr Saxby and Dr Nihal”. In considering APC’s case concerning the lack of reasons given by the Tribunal, I make the following observations. First, review of the decision of the Tribunal shows that the Tribunal gave careful consideration to the opinions of the respective surgeons, and further gave reasons for preferring the evidence of Dr Wallace to that of Dr Saxby (and, by implication, Dr Nihal). That this is so is apparent from the reasons of the Tribunal, in particular paragraph 17 where the Tribunal explains:This is a matter in which there is a conflict of specialist evidence. Dr Saxby considers that “any ongoing problems at this stage are related to the underlying degenerative condition rather than any work-related activity”. Dr Wallace is of a contrary opinion, he is strongly of the opinion that her condition is a result of the workplace injury as outlined: he was not shaken from that opinion during his extensive cross-examination, despite quite properly acknowledging the expertise of Dr Saxby. This is one reason why I prefer to rely upon the opinion of Dr Wallace. I also comment that Dr Saxby was briefed with both reports of Dr Wallace and while in his most recent report Dr Saxby still maintains his opinion he has not outlined any reasons why the reports of Dr Wallace should not be accepted. I accordingly find in reliance of the reports of Dr Wallace that the present condition of the applicant is related to her workplace injury.

Ratio Decidendi

Legal Principle Established

In opposing the notice of appeal Ms Edwards submits as follows:·APC’s amended notice of appeal pleads five separate questions of law but the complaints fall into three broad categories:(1)A complaint that the Tribunal failed to give lawful reasons for its decision, in particular preferring Dr Wallace’s evidence to that of the other experts.(2)A complaint that the Tribunal failed to give “proper, genuine or realistic” consideration to Dr Nihal’s report.(3) A complaint that the Tribunal’s decision was unreasonable.·In relation to the first category:ₒfailure by the Tribunal to give reasons for preferring some medical evidence to other medical evidence does not constitute an error of law;ₒin any event the Tribunal did explain why it preferred the evidence of Dr Wallace to that of Dr Saxby;ₒthe rejection of Dr Saxby’s evidence sufficed to deal with Dr Nihal’s concurring report;ₒAPC’s description of evidence of Dr Saxby and Dr Nihal as “overwhelming” cannot be supported.·In relation to the second category, the real issue for the Tribunal was the relationship between Ms Edwards’ condition or symptoms and her accepted “injury”, in particular the causal link. Dr Nihal’s report was not a “mandatory relevant matter” to take into consideration. In any event, the Tribunal’s decision shows that it was well aware of Dr Nihal’s reports and the opinion he expressed.·In relation to the third category the Tribunal was engaged in a fact finding exercise, and was not called upon to exercise a statutory discretion. It is clear that a wrong finding of fact is not an error of law, or the attainment of a factual finding by a faulty process. The Tribunal’s factual conclusions had a foundation in the evidence and were open having regard to Dr Wallace’s evidence.Consideration Section 44(1) of the AAT Act provides that a party to a proceeding before the Tribunal may appeal to the Court on a question of law from any decision of the Tribunal in that proceeding. As has been made clear by the High Court, s 44(1) intends that the merits of a case are dealt with not by the Court but by the Tribunal, this distribution of function being critical to the correct operation of the administrative review process: Repatriation Commission v Owens (1996) 70 ALJR 904 at 904. This point was recently reiterated by the Full Court of this Court in Nelson v Commissioner of Taxation [2014] FCAFC 163 at [11] where their Honours explained:The right of appeal to the Federal Court from a decision of the Tribunal conferred pursuant to s 44 of the AAT Act is of a limited nature only. Pursuant to s 44 of the AAT Act, an appellant can only appeal on a question of law from the Tribunal and an appeal is not competent unless a question is identified that is properly characterised as a question of law. The notice of appeal must disclose that the Court’s jurisdiction is enlivened pursuant to s 44 of the AAT Act and if the questions, properly analysed, are not questions of law, the appeal is not competent. The form of their expression does not turn them into questions of law.