Australian Postal Corporation v Lucas, J.K. (now Owen)

[1991] FCA 792

Re: AUSTRALIAN POSTAL CORPORATION
And: JANICE KAREN LUCAS (now OWEN)
No. N G147 of 1991
FED No. 792
Administrative Law
(1991) 14 AAR 487
(1991) 33 FCR 101

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Burchett J.(1)

CATCHWORDS

Administrative Law - appeal from Administrative Appeals Tribunal - duty to state reasons including findings on material questions of fact - insufficiency of reasons - discussion of the principle in Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR at 563 relating to the presumptive inference arising from a sequence of events.

Administrative Appeals Tribunal Act 1975, s. 43(2B)

HEARING

SYDNEY

#DATE 10:12:1991

Counsel for the Applicant: Miss R.M. Henderson

Solicitors for the Applicant: Australian Government Solicitor

Counsel for the Respondent: Mr G.M. Swinton

Solicitors for the Respondent: Messrs Maurice May and Co.

ORDER

The decision of the Administrative Appeals Tribunal be set aside.

The matter be remitted to the Administrative Appeals Tribunal, differently constituted, for determination according to law.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an appeal (limited, of course, to a question of law) from a decision of the Administrative Appeals Tribunal, made for reasons given by Mrs J.H. McClintock and Dr M.E.C. Thorpe, Members. Mr D.W. Muller, Senior Member, dissented. The principal ground of appeal is that the Tribunal failed to give reasons in compliance with s. 43(2B) of the Administrative Appeals Tribunal Act 1975.

1. The appeal to the Tribunal related to a determination by a delegate that Australia Post Compensation was "not liable to pay compensation to (the respondent) on and from 3 February 1989 in respect of injuries sustained by her on 2 July 1986, namely, (injuries to her) right hand and forearm." The respondent, who had been in receipt of compensation following her suffering at work what was accepted as an overuse syndrome in relation to the right upper limb, had appealed to the Administrative Appeals Tribunal against the determination. The decision of the majority of the Tribunal was to set aside the decision under review and remit the matter with a direction that the respondent was entitled to payment of compensation for total incapacity for work up to and including 1 February 1990, and further directions as to partial incapacity thereafter and as to costs. The dissenting member would have affirmed the decision under review.

2. The issue presented to the Tribunal by this case turned, in the first place, on whether it accepted the truth of the respondent's account of what she had experienced and of her complaints, in the second place, on its evaluation of the effect of that account and of those complaints, and in the third place, on the conclusions it reached having regard to the considerable conflict to be found in the medical evidence. The dissentient's position was clear. He accepted "the opinions of those medical witnesses who said that there is no evidence of organic disease nor of any physical disability". He considered the respondent had suffered tiredness and aching, while working, because she was grossly overweight, but he found that "as at February 1989, and following, (she) was not suffering from any compensable disability". So far as her alleged psychological problems were concerned, he accepted the view of Dr Roberts, a psychiatrist, who said she was "a blatant liar and a malingerer". Plainly enough, the majority did not accept the last view. However, the complaint made on this appeal is that it is otherwise impossible, from their reasons, to discover what evidence of the respondent or of any particular medical witness they accepted or rejected, or to understand their reasoning process.

3. Section 43 of the Act contains a general requirement that the Tribunal shall give reasons, either orally or in writing, for its decision. Sub-section 2B of that section provides:
   

"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."

1. In this case, the majority's reasons, given in writing, stated that the applicant was a 43 years old married woman, and gave brief details of her history. These details included that she had sustained an injury in September 1981, when carrying a bag of coins, and in 1982 had
   

"started to suffer symptoms in the arms and neck. The symptoms included pain, tired and heavy arm, lumpiness in the arm and elbow and a sore neck. The work she was doing included facing up letters, sorting mail and putting it in pigeon holes, putting letters through a franking machine whilst winding the handle, stamping letters and parcels with a metal stamp and working on the counter. To sort the mail she stood up and promoted (sic - scilicet pronated) her arm to face each letter up, then reached up to put them into pigeon holes. ... In July 1986 the symptoms became worse with pain in the arm, her hand swelled and her neck was sore. She waited until the weekend thinking the rest will help but the pain was so bad that (she) attended the hospital at Shell Harbour on 5 July 1986 and was given strong tablets for the pain and a certificate to say she was suffering from injury to the right arm and `will be fit for duty excluding repetitive movements involving the right arm (e.g. mail sorting and stamping) for 4 weeks.'"

The reasons proceed to describe medical attendances and tests. They state that the respondent was paid compensation from 7 July 1986, returning to work on light duties on 4 August 1986 unsuccessfully. There were other attempts made by Australia Post to rehabilitate her by providing selected duties, which failed. The majority comment: "The applicant gave evidence of her own sense of failure and depression and distress at the lack of understanding by the post office staff."

1. The reasons then proceed to refer to what are described as "a plethora of medical reports". They mention (in para 10) the view of Dr Roberts that "the limitations that (the respondent) attributes to whatever disease are not present". In para 11, they record that the respondent ceased to receive compensation on 3 February 1989, and note:
   

"This decision was taken on the basis of reports from Dr Roberts and Dr Sekel. Dr Sekel, consultant in Occupational and Rehabilitation Medicine, in his report of 13 September 1988 considered that, if in fact, her complaints of right upper limb and subscapular symptoms exist then they would be related to degenerative changes in the cervical spine. He considered her fit to return to work but advised certain restrictions."

The principal restrictions were "it would be sensible for her to refrain from work which involves rapid, repetitious movements of her arms".

1. The majority then proceeded to summarize details of the medical evidence. They referred to the views of Dr Robinson, a rheumatologist, who considered the respondent to be grossly overweight and "depressed due to the adiposity". He also thought she could have had adiposis dolorosa, apparently an organic condition of extreme obesity which could cause pain, or at least tenderness. The reasons state:
   

"He considered her condition to be not work-related and considered that a return to work is of vital importance to rehabilitate her muscles and her body in general, to improve her depressive state, and try to prevent her excess eating."

1. The next medical evidence referred to is that of Dr M. Cohen, another rheumatologist, who is stated by the reasons to have considered the respondent's major problem to be "hypermobility of the cervical and upper thoracic spine". The medical report of Dr Cohen, which was before the Tribunal, suggests that in fact he was talking about hypomobility. The reasons go on to state that he did not accept she was suffering from adiposo dolorosa (sic - scilicet adiposis dolorosa). They continue:
   

"On 24 February 1989 he considered the applicant to suffer from a diffuse regional pain syndrome of both upper limbs which is of mechanical and neuropathic aetiology and he held the view that her pain syndrome is attributed to the nature of her work tasks. He did not agree with the opinion of Dr Roberts. At that time he considered her unfit to perform the tasks prescribed by Australia Post. Following review 15 October 1990 he reported `she has continued to improve and is able to perform tasks short of those similar to those prescribed by Australia Post.' When pressed on this point in evidence Dr Cohen stated `I do not believe she is fit for full-time duties - I would anticipate that she would work less than a full, normal complement of hours per day'."

1. The reasons next refer to the evidence of Dr G Mowbray, an orthopaedic specialist. They note that he made nothing of her left arm or her excess fat, and at his most recent examination in January 1990 "he could find no evidence of organic disease". He had earlier referred to functional overlay. He also referred to an X-ray of 16 July 1986 of the cervical spine which indicated "well marked osteospondylitic changes at C6-7 vertebrodiscal joint". The reasons say: "Dr Mowbray considered the underlying condition could be degenerative changes in the cervical spine and that from a physical point of view she was capable of normal duties." The doctor had referred to an ultrasound procedure in respect of the right elbow which he had not felt competent to interpret. The reasons comment that Dr Bracken "considered the ultrasound findings to be indicative of organic disease".

2. In para 16 of the reasons mention is made of the opinion of Dr Davies (referred to in error as Dr Davis) "that Mrs Lucas suffers from a reactive depression and that the psychiatric component of the illness was secondary to her physical disability".

3. Paragraph 17 deals with the views of Dr Bracken, an orthopaedic surgeon who examined the respondent on 10 April 1990. He concluded "she may need another three to five years of inactivity before being able to cope with any form of meaningful employment and even at the end of that time I do not think she would return physically to the type of work she was doing or to any work involving constant use of the arms". Cross-examined, he conceded
   

"that she could return to light clerical work initially after three to five years, but if she felt she could cope at this stage with light clerical work, he would not argue about it. He considered her to be carrying too much weight and that physically heavy arms resulting from excessive fat deposition could result in

(her) developing musculo-tenderness problems in the arms as a direct result of the type of work she was doing. Dr Bracken considered the ultrasound of the elbow taken in 1986 supported her having organic musculo-tenderness problems at that time."

1. Paragraph 18 refers to a report of another orthopaedic surgeon, Dr Ireland, of 29 January. Dr Ireland "could find no evidence of physical disability and it was his opinion that psychological factors are now pre-eminent in Mrs Lucas's symptomatology."

2. In para 19, the reasons refer to a rehabilitation course attended by the respondent after she had
   

"tried to get a job and with the advice and assistance of a C.E.S. employee approached Commonwealth Rehabilitation. The course of treatment designed by Commonwealth Rehabilitation had been such that the (respondent) herself now feels she is able to undertake work of a selected type but could not again cope with her previous duties at the post office. She has done a course in receptionist and office duties and `to learn about wages'. On the (respondent's) evidence and that of some doctors the (respondent's) rehabilitation has been good, it could be said remarkably good in the light of Dr Bracken's original opinion that it would be years before the

(respondent) would be fit for work."

1. The majority then turned to the decision in the case. It will be appreciated that when they did so, they were confronted with an array of differing medical opinions. Organic conditions suggested as being or having been present included adiposis dolorosa or, less dramatically, obesity, degenerative changes in the cervical spine or in both the cervical spine and the upper thoracic spine, "diffuse regional pain syndrome of both upper limbs which is of mechanical and neuropathic aetiology", and "organic musculo tenderness problems" of the right elbow in 1986. As against this variety of organic explanations, there was the view that she had no organic disability. If any particular organic disability was accepted by the Tribunal as having existed at any particular time, questions would have been raised whether it was continuing, whether it was work related (for example, could the effects of spinal degenerative change, if that was producing the symptoms, be so related three years after injuries at work to her right arm?), and whether it was of sufficient severity to have produced alone, or in combination with other disabilities found, total or partial incapacity. These issues were complicated by the evidence as to whether or not there was psychological disability. The Tribunal had conflicting evidence ranging from a diagnosis of "reactive depression" through "functional overlay" to malingering. The more bizarre forms of psychological disorder do not appear to have been suggested by any doctor. If the Tribunal thought the respondent had suffered or was suffering from a reactive depression, that opinion would have raised the question whether the reaction was to work related disabilities or to some other factors (and a variety of factors, apart from hypomobility of the spine, was suggested). Again, the extent and persistence of any psychological disability was in issue. A matter the recital of which suggests it was seen as of importance (and it might well have been so seen) was the respondent's application for work, her participation in a course of rehabilitation and training, and her own evidence that she now felt able to undertake selected work. This might have been seen, depending on the impression the respondent made in evidence, and the view taken of the circumstances, either as strengthening one or more of the medical views supporting her case, or as favouring a view that was dismissive of claims of disability. In particular, it might, depending on the findings about it of the Tribunal, have been seen as refuting, or greatly weakening, the opinion of Dr Bracken.

2. However, the reasons of the majority do not proceed to resolve these problems in any orthodox fashion. Having expressed, perhaps, some surprise that the rehabilitation of the respondent was "remarkably good", the majority do not say whether they conclude that she was never as disabled as she had claimed, or whether they conclude that she was a genuine person who, having been fortunate in her recovery, was honestly stating its full extent without thought of the financial consequences, or whether they prefer some intermediate view. Those questions are just left up in the air. What the reasons do is proceed, in para. 20, by stating:
   

"Faced with this large amount of evidence, we are disposed to apply (the) dictum of Rich J. in Adelaide Stevedoring Co. Ltd v Forst (1940) 64 CLR at 563, applying the presumptive inference arising from the sequence of events."

Then, in para 21, the majority state:

"A good deal was made of the fact that the applicant had been overweight and perhaps not physically fit. In the case of Asioty v Canberra Abattoir Pty Ltd (1989) 63 ALJR 597 (this case is now reported at 167 CLR 533) in which the High Court was concerned with provisions of the Workmen's Compensation Ordinance 1951 of the A.C.T., the relevant provisions of which were similar to those with which we are here concerned, the Court said that there was no reason why a disease which produces susceptibility to a debilitating condition should not be regarded as aggravated when the susceptibility is heightened by a circumstance such as work of a particular kind. The fact that when the appellant ceased work of that kind his symptoms abated did not mean that he did not continue to be incapacitated for work (although not necessarily totally incapacitated by the disease)."

1. The majority then referred to the decision of Deputy President Todd in Re Musumeci and Department of Health (NT) (1990) 19 ALD 797, where Mr Todd said (at 798):
   

"(W)hile inability to make a precise and incontrovertible diagnosis may well make more difficult a finding of a link between employment and a claimed incapacity, that fact of itself does not militate against a finding for an employee under the legislation here applicable where the proofs are otherwise adequate."

Mr Todd went on to say

"that proven pain may in some circumstances fall within the statutory definition of disease notwithstanding that medical science is unable to agree on the label that is to be attached to the condition that gives rise to the production of non-transient symptoms that constitute the pain."

He also referred to the decision, at first instance, in Barker v Australian Telecommunications Commission, although I think he related that decision to a different point. It should be noted that the reasoning in Barker was not accepted on appeal: Australian Telecommunications Commission v Barker (1990) 12 AAR 490.

1. The majority do not make clear precisely what they draw from Re Musumeci. Mr Todd there acknowledged "inability to make a precise and incontrovertible diagnosis may well make more difficult a finding of a link between employment and a claimed incapacity", but, in the particular circumstances, he was able to point to a suggested diagnosis and to a considerable amount of evidence of incapacitating pain. He expressly accepted the applicant in that case "as a witness of truth, in particular in relation to her assertions about the presence of pain". No such definite finding was made in the respondent's favour here. I do not think that, in this case, involving as it does so great a variety of possible medical solutions, as well as dispute about the truth of the respondent's ongoing complaints, Re Musumeci can be regarded as a licence for the Tribunal to avoid reaching any conclusions on the evidence.

2. The Tribunal, in para 23, continued:
   

"Having considered the evidence, in the light of the authorities to which we have referred, we are satisfied on the balance of probabilities, that the work-caused injury caused physical limitations and caused pain. Those physical symptoms triggered the development of psychological symptoms. Thus the pain and consequent depression suffered by the applicant is compensable and find (sic) that since the determination to terminate compensation the applicant has been incapacitated for work since that date in that she is fit only for work not involving continuous or repetitive use of her right hand: and that that injury is the result of personal injury arising out of her employment by Australia Post. She is, however, capable by her own admission of doing clerical work of the nature which the rehabilitation course undertaken by her has fitted her for, namely, a sales position, clerical position or as a receptionist with a capacity to answer the telephone, do a reasonable amount of writing and preparation of wages etc. such as that for which she has applied at Shell Harbour Hospital; and for the purposes of s. 19(3) of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 we find the amount the applicant is able to earn in suitable employment would be the amount payable to her in that job."

1. The opening sentences of para 23 of the reasons explain the majority's view of the mechanism by which the incapacity originally accepted came about. They really say nothing on the questions raised by the medical evidence about the alleged persistence of that incapacity. They seem to assume that, once work-caused incapacity became established, it can simply be assumed to have continued. This approach appears to be accounted for by the opening indication that the evidence has been considered "in the light of the authorities", the first of which was Adelaide Stevedoring Company Limited v Forst (1940) 64 CLR 538. But in Forst, there was no lack of clarity as to the precise medical condition involved. Nor was there any doubt concerning the relevant facts. The only outstanding question was whether the medical condition (a coronary thrombosis) was connected with the proved activities of the worker during the period immediately before it was suffered, so that the employment could be held to have materially contributed to the cause of his death. That is a wholly different type of case from the present. In the present case, both the medical condition of the respondent and the facts concerning her activities (insofar as she claims an incapacity to perform certain tasks, which she says is associated with whatever is her medical state) are very much in dispute. Even the medical witnesses who support her case do so for widely differing reasons, and the same is true of the medical evidence on the other side.

2. What Rich A.C.J. said in Forst (at 563-564) about
   

"the presumptive inference which this sequence of events (the sequence of events there in question involving strenuous activity followed by an immediate collapse with a heart attack) would naturally inspire in the mind of any common-sense person uninstructed in pathology"

cannot assist at all in determining whether the later events in the present case were in fact part of a sequence or whether they were, as Dr Roberts contended, inspired by a desire to defraud. The truth of the facts must first be ascertained before inferences can be drawn on the assumption that they constitute a sequence. Nor, as Rich A.C.J. recognised (at 564), can the sequence of events, even when established, dispose of positive medical conclusions; in Forst, the point was that Rich A.C.J. was able to say:

"(T)he investigation of physiological and pathological opinion shows no more than the current medical views find insufficient reason for connecting coronary thrombosis with effort."

In that negative state of medical knowledge, he considered it justified to draw a lay inference. If medical opinion had provided a firm answer, the lay inference could not have been substituted for it. Furthermore, unless the events give rise to a very clear inference, as they did in Forst, the comment of Dixon J. in his dissenting judgment (at 570) cannot be ignored without the sacrifice of reasoned decision-making:

"Tempting as it always is, particularly in matters of bodily health, to argue from a sequence of external events, such reasoning is justified only when positive knowledge or common experience supplies some adequate ground for believing that the events are naturally associated."

Still less can it be justified if the reality of the events is itself one of the issues left in doubt, or if alternative sequences are suggested by the evidence.

1. Accordingly, the majority's attempt to apply Forst without first finding which basic facts it accepted as shown by the evidence, or which one or more of the conflicting medical opinions it could rely upon, was simply not capable of providing a basis for any conclusion on the question before the Tribunal.

2. The reference to Asioty is not linked to any finding of fact in the present case. The High Court was there concerned with an undoubted condition of dermatitis, which was aggravated by the appellant's work as a slaughterman. There was medical evidence that the aggravation made the condition "more liable to a flare up". Toohey J. (at 540) said:
   

"The proper conclusion is that the condition of the appellant's hands, with their now enhanced susceptibility to dermatitis, has intensified the disease from which the appellant suffers. This enhanced susceptibility constitutes an aggravation of the disease and, in the circumstances, falls within the language of the Ordinance."

The majority's reference to this authority is linked to the present matter only by their reference to argument addressed to them on the basis that the respondent "had been overweight and perhaps not physically fit". If the decision in Asioty were of any relevance, it would have to be on the footing of a finding that the respondent had some condition which was aggravated by her work, so as to enhance her susceptibility to future attacks of that condition should she resume work of the kind in question. No such finding has been made, and the comments in para 23 of the majority's reasons do not refer to the aggravation of a disease, but rather to the infliction of pain by injury and the development of depression.

1. Further to confirm the confusion created by these aspects of the reasons, the reference to Re Musumeci is also not tied in to any particular findings of fact. The passages selected from that decision seem to suggest that the majority thought it unnecessary to reach any conclusion on the medical issues. If that is so, I think they were in error. Re Musumeci was a rare case, and the point made in it was a very special one. I do not wish to cast any doubt upon the conclusion that, given an incapacitating condition is satisfactorily shown, the mere fact that the diagnosis of its medical nature may not be able to be made precisely, though obviously a factor which might militate against a finding of a causal link with employment, will not necessarily present an insuperable obstacle to such a finding. It must depend on the evidence. Nor is it to be doubted that proof of incapacitating pain may be relevant to show an aggravation: cf. Commonwealth of Australia v Beattie (1981) 35 ALR 369 at 378, per Evatt and Sheppard JJ.

2. The result of this examination of the reasons given by the majority is that it is quite uncertain what view of the facts and the medical evidence they took. There is uncertainty whether they thought it was possible to identify any medical condition or conditions which accounted for the respondent's complaints. Perhaps they thought a sequence of complaints, following an accepted work related disability, could in itself provide the answer, notwithstanding the peculiar difficulties raised in the present case. They did, of course, indicate that both physical symptoms and psychological symptoms resulted from "the work-caused injury", but they did not identify the nature of that injury or the mechanism by which incapacity continued into the relevant period. It is quite uncertain whether they considered any "physical symptoms" were continuing or whether they thought the current condition was entirely psychological, as appeared to be the effect (if continuing disability were to be accepted) of some of the medical evidence. The part played by factors that were not work related was simply not examined.

3. It seems to me that this is a case where s. 43(2B) of the Act has not been complied with. I am conscious that an administrative tribunal, which has performed the substance of its task, should not be picked up pedantically for mere failures in accurate and comprehensive expression. But s. 43(2B) expresses a fundamental condition of responsible administrative review, and a fundamental condition for acceptability of the decisions made upon review. Such a decision must be able to be understood. In Dornan v O'Riordan (1990) 24 FCR 564 at 568, the full court set out a well known passage from a judgment of Woodward J., which I will not repeat. The full court went on to describe the reasons there under consideration in these terms:
   

"(W)hile the reasons disclose the material which the Tribunal took into account, it is impossible to glean from the Tribunal's reasons what was the reasoning process that led to its determination."

The judgment pointed out (at 575) that the result was to make it impossible to determine whether the Tribunal had otherwise made its decision in accordance with law or not.

1. In Australian Telecommunications Commission v Barker (supra, at 492), another full court said:
   

"The Tribunal failed to state reasons for that conclusion, to expose its reasoning process. It is an error of law for a tribunal, which is bound to state reasons for its decision, to fail to express findings and reasons for decision adequate for the purpose of enabling a proper understanding of the basis on which a decision has been reached."

The court also said (at 493), of a finding that a condition was not caused by injuries at work:

"This finding stands on its own unsupported by the previous discussion of ... proof in relation to medico-legal problems. That earlier discussion over many paragraphs does not show any reason for the ultimate finding, which stands on its own without reasons. It is true that relevant evidence was referred to; but that evidence left the question open. In the absence of reasons explaining why the Tribunal came to that crucial finding, the Tribunal's decision was correctly set aside for error of law."

It seems to me this comment exactly applies to the present case. After lengthy discussion of conflicting evidence, the Tribunal has failed to make those findings on material questions of fact which would have enabled its reasoning process to be understood. It has also, of course, as a consequence, failed to expose the reasons themselves. This is not a case, as McAuliffe v Secretary, Department of Social Security (von Doussa J., unreported, 21 June 1991) was, in one aspect of it, where "the basis of the reasoning of the Tribunal may be inferred clearly enough", so that there was "(s)ubstantial compliance" (see Bisley Investment Corporation Ltd v Australian Broadcasting Tribunal (1982) 59 FLR 132 at 157; Federal Commissioner of Taxation v Cainero (1988) 88 ATC 4427 at 4431) with the requirements of s. 43(2B).

1. Unfortunate though it may be, I think the only appropriate course is to set aside the decision of the Tribunal and to remit the matter for decision according to law by the Tribunal, differently constituted. I think it is necessary that the Tribunal should be differently constituted for the reasons stated by Davies and Foster JJ. in Northern NSW FM Pty Limited v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 42-43.