Australian Postal Corporation v Harris
[2000] FCA 712
•2 JUNE 2000
FEDERAL COURT OF AUSTRALIA
Australian Postal Corporation v Harris [2000] FCA 712
ADMINISTRATIVE LAW – appeal from decision of Administrative Appeals Tribunal determining application for compensation under Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether Tribunal failed to consider whether or failed to provide proper or adequate reasons for finding respondent’s psychiatric impairment was likely to continue indefinitely – whether Tribunal failed to consider whether respondent’s ten percent impairment was likely to continue indefinitely and resulted from the injury – whether there was no evidence to support finding that respondent was totally incapacitated up to the date of Tribunal’s decision
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 19(4)(e), 24
Martin v Australian Postal Corporation (1999) 29 AAR 420 referred to
Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598 referred to
Apthorpe v Repatriation Commission (1987) 77 ALR 42 referred to
Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 referred toAUSTRALIAN POSTAL CORPORATION v IAN HYLTON HARRIS
N 54 OF 2000
MOORE J
2 JUNE 2000
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 54 OF 2000
ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
AUSTRALIAN POSTAL CORPORATION
APPLICANTAND:
IAN HYLTON HARRIS
RESPONDENTJUDGE:
MOORE J
DATE OF ORDER:
2 JUNE 2000
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. Paragraph 1(d) of the decision of the Administrative Appeals Tribunal of 21 December 1999 is set aside.
2. The appeal is otherwise dismissed.
3. The matter is remitted to the Tribunal to determine what payments, if any, should be made to the applicant pursuant to s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for the period 15 March 1999 to 21 December 1999.
4. The respondent pay one third of the applicant’s costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 54 OF 2000
ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
AUSTRALIAN POSTAL CORPORATION
APPLICANTAND:
IAN HYLTON HARRIS
RESPONDENT
JUDGE:
MOORE J
DATE:
2 JUNE 2000
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Introduction
This is an appeal by the Australian Postal Corporation ("the Corporation") under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) against a decision of the Administrative Appeals Tribunal ("the Tribunal") of 21 December 1999. In that decision the Tribunal determined an application for compensation by Mr Ian Harris under the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the Act"). The determination was made in a review of a reconsideration determination of a delegate of the Corporation which had affirmed an earlier determination disallowing a claim for compensation by Mr Harris under the Act.
Background
The following emerges from the reasons of the Tribunal. Mr Harris commenced working for the Corporation on 6 November 1989. An incident occurred on 11 September 1990 in which Mr Harris claimed he strained his groin, leg and hip. In November 1990 Mr Harris returned to normal duties as a driver though in June 1991 he was hospitalised. There was evidence before the Tribunal that this was for reasons, inter alia, of depression though no finding to that effect was made. In August 1992 Mr Harris resumed his normal duties though claimed he was then suffering neck and back pains. On 21 September 1992 he was sent home from work for “acting silly and giggly and over happy”. He subsequently was admitted to the Pialla Unit at the Nepean Hospital where his emotions were stabilised with medication.
Mr Harris returned to work on light duties on 16 November 1992. In 1993 Mr Harris claimed to be getting bouts of diarrhoea and indigestion. He claimed to have injured his back and groin at work on 14 February 1994. Mr Harris separated from his wife in February 1994. While he continued to work at this time he took various periods off work until March 1995 when he went on continuous sick leave. He sought and obtained an involuntary retirement effective 2 October 1996. From that point Mr Harris was in receipt of a disability support pension. On 14 April 1997 Mr Harris made application for rehabilitation and compensation under the Act for alleged injuries to his cervical spine, an osteoarthritic knee, an anxiety and stress disorder and intestinal problems. On 17 June 1997 the Corporation disallowed the claim and this disallowance was affirmed on review on 25 August 1997.
The hearing and evidence before the Tribunal
The hearing before the Tribunal took place on 29 and 30 October 1998 and 5 March 1999. At the hearing in March 1999 evidence given by Dr Pusic who was Mr Harris’s treating psychiatrist and another psychiatrist, Dr Morse who had seen Mr Harris in probably April 1996 when he had made a disability claim under a policy with MLC. Dr Pusic first saw Mr Harris in early February 1994. Additional psychiatric evidence was given by Dr Gertler who saw Mr Harris on 25 November 1997. Two reports of Dr Pusic were in evidence before the Tribunal. The first report was dated 5 November 1995 and concluded:
"Taking into account Mr Harris’ Generalised Anxiety Disorder, obsessive and paranoid personality traits and physical disabilities, I would say that Mr Harris is totally and permanently unfit to continue his duties with Australia Post. I do not feel that he would benefit from a work based rehabilitation program."
The second report was dated 25 February 1999. Dr Pusic commenced this report with an account of Mr Harris’s history which preceded his first report. Dr Pusic then expressed the view that:
"By late 1995, Mr Harris anger and resentment [sic] of the way he had been treated by Australia Post had reached the stage where any rehabilitative attempt would have been fruitless. I found him to be unfit to return to work for Australia Post.
I would say that Mr Harris’ inability to cope with the demands of being a driver for Australia Post did contribute to his Anxiety Disorder. He may possibly have been helped if a comprehensive rehabilitation assessment and a planned rehabilitation program was put in place at an early stage when he was experiencing difficulties with driving.
Since 1995, Mr Harris has been on a Disability Support Pension. He has continued to suffer from mild fluctuating levels of generalised anxiety. He has continued to suffer form [sic] low back pain. He has at times been irritable and mildly dysphoric. He has become increasingly withdrawn from others. He leads an isolated existence in a caravan park.
Using the guide to the assessment of the degree of permanent impairment, Mr Harris is experiencing a 10% level of impairment.
From purely a psychiatric point of view, Mr Harris would be fit for non demanding employment.”
Mention should be made of the report of Dr Morse dated probably April 1996. The report concluded with answers to several questions which Dr Morse had been asked:
“7 I consider him to be totally disabled in regard to work as a driver. He presumably could do clerical work with sufficient training and assistance though he would see himself as being too anxious or tense to carry this out, however, with treatment and support, rehabilitation, it is possible he could carry out the work. I think he would be suitable for cleaning and other light physical work if his physical condition would allow it.
8 He appears to have a very poor motivation to return to work.
9 Given the intensity of his emotional distress and his attitude towards his illness, the rather hopeless, despairing view he has of his ability to recover, the complicating factor of his physical condition which he sees as also very disabling, I consider the prognosis for recovery from his emotional and physical state to be poor, his ability to return to normal life and social interaction to be very poor and his ability to return to work as poor.”
The Tribunal's decision
The reasons for decision of the Tribunal commenced with an outline of the background and the evidence, both documentary and oral. The Tribunal then set out the evidence of Mr Harris, an account of the medical evidence (both historical and more contemporary) and the submissions of both counsel for Mr Harris and counsel for the Corporation. The Tribunal's account of the contemporary medical evidence included a detailed account of the evidence of Dr Pusic, Dr Gertler and Dr Lee who was a psychiatrist who had examined Mr Harris at the request of the Corporation.
The Tribunal then set out its consideration of the evidence and the findings of fact it made. It commenced by saying that Mr Harris was not an impressive witness. As to the claims of physical disability the Tribunal said:
“106. … the Tribunal finds that the aggravating effects of the Applicant’s work on his knee, back and neck would have ceased no later than 17 June 1995, that being three months from the cessation of those work activities [loading and unloading a truck].
107. … the Tribunal finds that the Applicant does not suffer from any work related impairment in his knees … the Tribunal does not accept that the Applicant’s back condition continues to be aggravated or accelerated by his work with the Respondent.
108. On the basis of these findings the Applicant is entitled to incapacity payments pursuant to s 19 for total incapacity and compensation pursuant to s 16 for any medical treatment in respect of his neck, back and knee conditions, until and including 17 June 1995. Thereafter his entitlement to such payments ceased. As the Tribunal finds that the effect of the Applicant’s employment on those conditions ceased no later than 17 June 1995, he is not entitled to payment of compensation in respect of permanent impairment for his neck, back and right knee. Therefore, although the Tribunal took evidence in respect of permanent impairment, the detail of that evidence is not included in these reasons for decision.”
The Tribunal then turned to consider the contention that Mr Harris suffered from a compensable psychiatric condition. It concluded that Mr Harris’s employment contributed to a material degree to the acute psychotic episode he had in February 1994. It rejected any suggestion that Mr Harris suffered from a personality disorder. The Tribunal then considered the evidence of the three psychiatrists. It rejected the opinion of Dr Lee. It expressed, in substance, reservations about the evidence of Dr Gertler. It said the following about the evidence of Dr Pusic:
“111. The Tribunal was most assisted by the evidence of Dr Pusic, the Applicant’s treating psychiatrist. It was supported by and/or consistent with his contemporaneous clinical notes. The weakest part of Dr Pusic's evidence was his opinion that the Applicant’s present condition of mild anxiety disorder was still affected by his employment at Australia Post as this was an opinion given without supporting evidence. However, as that was the best evidence available and he is the treating psychiatrist the Tribunal is reasonably satisfied of the reliability of his opinion evidence. On the basis of Dr Pusic's evidence, therefore, the Tribunal finds that the Applicant’s employment contributed to his hypomanic disorder rather than merely having aggravated it, and that he continues to suffer from a mild anxiety condition arising in part from his employment with the Respondent.”
The Tribunal then dealt with and rejected the contention that Mr Harris had a compensable intestinal condition related to his anxiety disorder after he stopped working for the Corporation on 17 March 1995. The Tribunal concluded its consideration of the elements of the claim based on Mr Harris’s psychiatric condition:
“113. The Applicant’s condition has now improved to the point where Dr Pusic considers that the Applicant could perform suitable work although he excluded the pre-injury work with Australia Post as suitable work. He also noted the likelihood of the Applicant needing to be involved in a rehabilitation program in order to achieve his return to suitable work. On the basis of Dr Pusic's evidence, and in the absence of any evidence as to the date from which the Applicant was fit for selected employment, the Tribunal finds that from the date of its decision the Applicant was the fit for suitable light work within the limitations of his non-work-related neck and back conditions, in a low stress environment, subject to a suitable rehabilitation program to assist him to return to work after having been out of the workforce since 17 March 1995.
114. The Tribunal notes the evidence from Dr Pusic that the Applicant suffers from a permanent impairment in relation to his psychiatric condition of ten percent, and the Tribunal so finds. The Tribunal prefers the evidence of Dr Pusic to Dr Gertler on this issue for the same reasons as outlined previously. The Applicant is entitled to payment of compensation for permanent impairment at ten percent pursuant to s 24 of the Act. His entitlement for payment in respect of non-economic loss pursuant to s 27 will be remitted to the Respondent for assessment.”
The formal decision of the Tribunal was:
“The Tribunal sets aside the reviewable decision being the determination of the Respondent dated 25 August 1997 and remits the matter to the Respondent with the Direction that-
1. (a) the Applicant suffered a temporary work-related aggravation of the pre-existing conditions in his lumbar spine, cervical spine and right knee, and that those aggravations ceased no later than 17 June 1995;
(b) the Applicant suffered a work-related aggravation of his psychiatric condition, and that he continues to suffer from a mild work-related anxiety disorder;
(c) the Applicant suffered from a gastrointestinal disorder which was temporarily aggravated by acute exacerbations of his anxiety disorder, and that the acute exacerbations of his anxiety disorder and therefore the temporary aggravation of his gastrointestinal disorder ceased when his employment ceased on and from 17 March 1995;
(d) the Applicant is entitled to incapacity payments pursuant to s 19 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") in respect of his mild anxiety disorder on the basis of total incapacity, until and including the date of this decision, and thereafter he is fit for work in a low stress environment, subject to a suitable rehabilitation program to assist him to return to work, and within the restrictions of his non-work-related back, neck and right knee conditions, but he is not fit to return to employment with the Respondent;
(e) the Applicant is entitled to payment of compensation in respect of permanent impairment of mild anxiety disorder at ten percent pursuant to s 24 of the Act;
(f) the Respondent shall assess the amount of compensation payable to the Applicant for non-economic loss pursuant to s 27 of the Act; …”
The issues in the appeal
As a result of an amendment made to the notice of appeal during the hearing the following are the issues raised by the Corporation in these proceedings:
(i)the Tribunal failed to take into account a relevant consideration by failing to consider whether Mr Harris’s psychiatric impairment was likely to continue indefinitely;
(ii)the Tribunal failed to take into account a relevant consideration by failing to consider whether Mr Harris’s ten percent impairment was likely to continue indefinitely and resulted from the injury;
(iii)there was no evidence to support the Tribunal's finding that Mr Harris was totally incapacitated up to the date of the decision;
(iv)the Tribunal failed to provide proper or adequate reasons concerning its finding that Mr Harris’s psychiatric impairment was likely to continue indefinitely;
(v)the Tribunal failed to provide proper or adequate reasons concerning its conclusion reflected in par (1) (d) of its formal decision that Mr Harris was entitled to incapacity payments pursuant to s 19 of the Act in respect of his mild anxiety disorder on the basis of total incapacity up to and including the date of decision;
(vi)the Tribunal failed to provide proper or adequate reasons concerning Mr Harris’s ability to earn in suitable employment up to and including the date of its decision;
(vii)the Tribunal failed to take into account a relevant consideration by failing to consider Mr Harris’s ability to earn in suitable employment as contemplated by s 19 (4) of the Act in determining that Mr Harris suffered from a mild anxiety disorder resulting in total incapacity up to and including the date of its decision.
Conclusions in the appeal
It is convenient to deal first with issues (i) and (iv) together. Section 24 of the Act creates a liability to pay compensation where an employee has suffered an injury resulting in a permanent impairment. Section 4 defines “permanent” as meaning likely to continue indefinitely and defines "impairment" as meaning the loss, the loss of use, or the damage or malfunction of any part of the body or of any bodily system or function or part of such system or function.
While the Tribunal had earlier indicated that, overall, the psychiatric evidence was quite variable, weak and mostly unhelpful, it nonetheless appears to have accepted the evidence of Dr Pusic. As noted earlier, the Tribunal indicated it was “most assisted” by the evidence of Dr Pusic. In his report of 25 February 1999 Dr Pusic had expressed the opinion, in relation to Mr Harris’s anxiety disorder, that Mr Harris was experiencing a ten percent level of permanent impairment. It may be accepted that this opinion was expressed in the context of the application of Table 5.1 of the Guide prepared pursuant to s 28 of the Act. However, it is nonetheless the expression of an opinion about the enduring nature of the impairment suffered by Mr Harris. There was no cross examination of Dr Pusic about this opinion and the Tribunal was, in my opinion, entitled to proceed on the basis that there was expert evidence before it that the impairment was permanent in the way defined in s 4. Indeed the Tribunal expressly adverted to this aspect of Dr Pusic's evidence, said it made a finding to that effect and indicated it preferred the evidence of Dr Pusic to Dr Gertler on that issue. The Tribunal was plainly adopting, as a finding, the expert opinion of Dr Pusic and it was unnecessary, in my opinion, for the Tribunal to elaborate in its reasons on why it had concluded that the impairment was permanent, a matter it was clearly addressing.
Issue (ii) concerns the acceptance by the Tribunal, by declaring an entitlement to payment of compensation pursuant to s 24 of the Act, that the impairment identified by Dr Pusic resulted from an injury (which is defined to include a mental injury) arising out of, or in the course of, Mr Harris’s employment or resulted from the aggravation of such an injury. Counsel for the Corporation referred to evidence of Dr Pusic that might be thought to have supported a finding that at least one of the criteria identified in Table 5.1 for assessing the degree of permanent impairment, minor distortions of thinking, did not have or partly did not have its origin in an injury arising out of employment with the Corporation. The criticism of the Tribunal's approach was that it did not investigate the extent to which the impairment might not have arisen out of the employment and did not address whether the impairment (as assessed by reference to the criterion in Table 5.1) was likely to continue indefinitely due to the effect of the mild anxiety disorder.
In Martin v Australian Postal Corporation (1999) 29 AAR 420, Burchett J reviewed the operation of the Act and, in particular, discussed the relevant relationship between a pre-existing condition and demonstrated or accepted impairment. His Honour referred to the sometimes "hopeless task" of disentangling one set of effects flowing from a pre-existing injury from another set of effects flowing from injury arising out of employment. In the present case, the Tribunal was presented with expert evidence from Dr Pusic which propounded, and thus supported, the view that the impairment was permanent and had its origins in the employment with the Corporation. The Tribunal was entitled to act on this evidence and treat it, as it did, as establishing, as required by s 24, that the impairment was permanent and resulted from work related injury.
It is to be recalled that the last day of hearing before the Tribunal was 5 March 1999 and that the decision of the Tribunal was not given until 21 December 1999. It is also to be recalled that par 1 (d) of the formal decision (set out in par 9 above) declared an entitlement to payment pursuant to s 19 until the date of the decision on the basis that Mr Harris was totally incapacitated in that period. Implicit in this declaration is the conclusion that between 5 March 1999 and 21 December 1999 Mr Harris was not able to earn any amount in suitable employment. That such a conclusion was acted on flows from the terms of s 19 which identifies the amount to be paid as the difference between the employee’s normal weekly earnings and the amount per week (if any) that the employee is able to earn in suitable employment. Issue (iii) raises whether there was any evidence to support that conclusion, issues (v) and (vi) raise whether the reasons adequately explain the conclusion and issue (vii) raises whether the provisions of s 19 (4) were taken into account in reaching that conclusion.
The reason why the Corporation focused on the period following the last day of hearing in March 1999 was because it was not until late February 1999 that Dr Pusic expressed the opinion that Mr Harris was fit for non-demanding employment. That is, it was only apparent that from that time Mr Harris might have been able to undertake suitable employment. That is relevant because of the terms of s 19 (4) which relevantly provides:
“19. (4) In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
…
(e) where, after becoming incapacitated for work, the employee has failed to seek suitable employment – the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment;
…
(g) any other matter that Comcare considers relevant.”
The gravamen of the complaint of the Corporation is that if Mr Harris was, in the opinion of Dr Pusic (whose opinion the Tribunal generally acted on), fit for some employment in March 1999 then that should have been reflected in the approach of the Tribunal to the compensation, if any, payable between March 1999 and December 1999.
As to issue (iii), it would be entirely unrealistic, in my opinion, to take an unduly narrow approach to what was required to support a conclusion of incapacity until the date of the decision. That flows not only from the accepted principle of administrative law that administrative decision makers can make wrong findings of fact if there was some material to support the findings (in the sense that the findings are generally immune from judicial review) but also from the obvious difficulties attending the determination of what can sometimes be difficult legal and factual issues after the conclusion of the hearing or investigation by the decision maker. The consideration of those legal and factual issues can often take time if done properly. In the present case it is plain, in my opinion, that the Tribunal was, in the context of having taken some months to consider his application, endeavouring to deal in a practical way with what it perceived to be the need for Mr Harris to undergo a program of rehabilitation before re-entering the workforce and thus earn an income.
In forming the view that rehabilitation was necessary before further employment could be undertaken, the Tribunal appears to have drawn on the evidence of Dr Pusic. The Tribunal says as much in the second sentence in par 113 of its decision (quoted in par 8 above). However the evidence of Dr Pusic, and in particular his report of 25 February 1999, does not provide any support for this conclusion in relation to employment other than employment with the Corporation (and then only in relation to the time when Mr Harris was initially experiencing difficulties with driving). Thus the Tribunal qualified the opinion of Dr Pusic that Mr Harris was fit for non-demanding employment with a qualification that Dr Pusic did not himself propose or advance. Counsel for Mr Harris pointed to an opinion of Dr Morse given in a report prepared in April 1996 as supporting a conclusion that a program of rehabilitation was necessary before Mr Harris could take up further employment. However not only was that not the evidence relied upon by the Tribunal but, relevantly to this alleged error of law, the opinion of Dr Morse was that rehabilitation would be necessary for Mr Harris to do clerical work. No such qualification was made by Dr Morse in his opinion that Mr Harris was fit for cleaning and other light physical work if his physical condition would allow it.
While the Tribunal was plainly intent on dealing, in a practical way, with what it quite properly perceived to be the practical questions arising from giving a decision several months after the hearing, it did so by treating the evidence of Dr Pusic as founding a conclusion that it simply did not support. The point having been taken by the Corporation in these proceedings, I am obliged to deal with it. I am satisfied there was no evidence to support a finding that rehabilitation was necessary before any employment could be undertaken by Mr Harris. It is relatively clear that the Tribunal made and acted on such a finding having regard to what it said in par 113 of its reasons and to the terms of par 1(d) of its formal decision. The conclusion that Mr Harris was to be treated as totally incapacitated until the decision was given was based on that unsupported finding and appears to have led the Tribunal not to address directly s 19(4)(e). This, in the circumstances, is an error of law see: Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598 at 601, Apthorpe v Repatriation Commission (1987) 77 ALR 42 at 53 and Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 at 199. It is unnecessary to consider in detail issues (v), (vi) and (vii).
Accordingly it is necessary to consider what order should be made in the light of this demonstrated error. The power conferred by s 44 (4) of the AAT Act is in broad terms. The error established by the Corporation in these proceedings concerns only par 1 (d) of the formal decision. I propose to order that this paragraph of the decision be set aside and that the matter be remitted to the Tribunal on the basis that the Tribunal decide what payments, if any, ought be paid pursuant to s 19 between 15 March 1999 and 21 December 1999. I propose to make no direction as to whether that decision should be made on the basis that the Tribunal will hear further evidence. Whether further evidence is to be heard is a matter for the Tribunal to determine. The Corporation has succeeded in establishing error but only in relation to one aspect of the decision. Mr Harris has successfully defended the Tribunal's decision in large measure. In those circumstances it is appropriate, in my opinion, that the Corporation have some of its costs only. The respondent should pay one-third of the Corporation’s costs of the appeal.
I certify that the preceding twenty one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore . Associate:
Dated: 2 June 2000
Counsel for the applicant: Mr G M Elliott Solicitor for the applicant: Australian Government Solicitor Counsel for the respondent: Mr L T Grey Solicitor for the Respondent: Carroll & O'Dea Date of Hearing: 18 April 2000 Date of Judgment: 2 June 2000
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