Barker v Australian Telecommunications Commission

Re: SHIRLEY ELSE BARKER
And: AUSTRALIAN TELECOMMUNICATIONS COMMISSION
No. G 1181 of 1988
FED No. 136
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SYDNEY DISTRICT REGISTRY
GENERAL DIVISION
Einfeld J.(1)

CATCHWORDS

Administrative Law - Appeal from decision of Administrative Appeals Tribunal affirming determination that the respondent not liable to pay compensation to the applicant under the Compensation (Australian Government Employees) Act 1971 - whether Tribunal erred in law - no evidence to support finding of fact - onus of proof and evidentiary burdens in administrative proceedings - change of circumstances - medical negligence as cause of worker's condition - whether condition due to reasonably undertaken medical treatment.

Administrative Appeals Tribunal Act 1975, S.44

Compensation (Australian Government Employees) Act 1971

HEARING

SYDNEY

#DATE 9:4:1990

Counsel for the Applicant Mr J Anderson instructed by

Steve Masselos and Co Solicitors.

Counsel for the Respondent Mr M B Smith instructed by

Hunt and Hunt Solicitors

ORDER

The appeal be allowed.

The conclusions and orders of the Administrative Appeals Tribunal constituted by Senior Member M.D. Allen on 9 August 1988 be set aside.

The decision of Compensation Commissioner's delegate of 4 November 1987 be set aside.

In lieu of the Administrative Appeals Tribunal's findings, substitute the following findings:

(a) The evidence did not establish that the conditions for which the applicant has been paid compensation since 19 March 1981 pursuant to the determination of the Compensation Commissioner's delegate on 16 June 1981 and otherwise, did not exist or had changed.

(b) The evidence did not establish any new or other cause for these conditions than the accepted incidents at work on 16 February and 18 March 1981 and/or subsequent reasonably undertaken medical treatment for which compensation has been paid since 19 March 1981.

(c) The evidence did not establish that the applicant's problems have a psychological basis which is not employment-caused or related, or resulted from medical treatment reasonably undertaken.

(d) The evidence did not establish that the applicant's current conditions were caused by any negligence on the part of/or treatment by any medical practitioner.

The respondent to pay the applicant the appropriate level of compensation from 29 October 1987 and continuing for injuries sustained by her in the course of her employment by the respondent on 16 February and 18 March 1981.

The respondent to pay the applicant's costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

On 9 August 1988, a Senior Member of the Administrative Appeals Tribunal affirmed a determination on 4 November 1987 by a delegate of the Commissioner for Employees' Compensation (the Compensation Commissioner) that the respondent (Telecom) was not liable to pay compensation to the applicant (now Mrs Richardson) in respect of a condition of right lateral epicondylitis on and from 29 October 1987 under the Compensation (Australian Government Employees) Act 1971 (the Compensation Act).

This determination in substance reversed a determination of 16 June 1981 that compensation was payable to the applicant for that condition. Mrs Richardson alleged that the condition resulted from an injury in the course of her employment by Telecom on 18 March 1981. The applicant's case now is that both lateral and medial epicondylitis, a right ulnar neuritis and an additional condition of peri-capsulitis of the right shoulder said in turn to have been caused by the elbow injury, arose out of or in the course of her employment by Telecom on 16 February and 18 March 1981. The case raises issues of some complexity which are not of simple resolution.
The circumstances of the applicant's injury are set out in the evidence as detailed in the Tribunal's determination and in uncontested submissions by counsel. The salient facts are these:

1. The applicant (then Mrs Barker) commenced work as a technician's assistant with Telecom in 1980. She had nothing wrong with her right elbow or shoulder at the time.

2. On 16 February 1981, she bumped the outside of her right elbow on a metal mainframe and removed some skin. She reported the incident which was recorded in the accident book, but she did not require medical treatment. There were no apparent repercussions or continuing problems.

3. On 18 March 1981, she struck the outside of her right elbow on a heavy door. She had pain in the elbow and down the arm into the fingers but continued working.

4. The following day her elbow and fingers were swollen so she visited her local doctor. He certified her unfit for work for 2 weeks.

5. When the pain and swelling continued, an appointment was arranged with Dr Grahame Mahony, an orthopaedic surgeon. He diagnosed a right lateral epicondylitis and gave her a cortisone injection.

6. The applicant remained off work until 22 April 1981 when she returned to work on restricted duties. She remained at work for 6 weeks when she returned to Dr Mahony as the symptoms had not subsided. He gave her another injection.

7. On 5 June 1981, Dr Mahony placed the elbow and forearm in plaster where they remained for 2 weeks.

8. On 16 June, the Compensation Commissioner found the respondent liable to pay compensation for right lateral epicondylitis following injury on 18 March 1981.

9. As the pain persisted, Dr Mahony operated on her arm on 31 July 1981, transplanting the ulnar nerve and stripping the medial epicondyle. The applicant was off work until 15 March 1982.

10. On 10 March 1982, she was examined for Telecom by Dr Ehrlich, who found that the applicant was suffering from a "recent right elbow operation" which "on the probabilities .... was due to the accident on 18 March 1981 (and) aggravated by subsequent injury two months later."

11. On 29 March 1982, a Commonwealth medical officer (CMO) reported that the applicant was suffering from right medial epicondylitis.

12. The applicant did clerical duties from 15 March to 26 July 1982 although this period apparently included 4 weeks annual leave.

13. On 13 May 1982 a CMO reported that the applicant was suffering from "bilateral epicondylitis with ulnar nerve transposition re arm".

14. On 16 June 1982, Dr Mahony gave her another cortisone injection.

15. On 26 July 1982, her symptoms still continuing, the applicant was certified by her local doctor as unfit for 14 days.

16. On 13 August 1982, Dr Mahony manipulated her elbow in hospital and gave her an injection of marcaine. For this, as for two later manipulations, a general anaesthetic was administered.

17. On 30 August 1982, Dr Ehrlich reported of the applicant: "Operated and manipulated right elbow injury, aversive response to right upper limb use - due on balance of probabilities to incident of 18.3.81" She was said to be fit for light duties.

18. On 2 September 1982, the applicant was informed that there were no light duties available at the applicant's plant. She has not worked since.

19. On 21 September 1982, a CMO agreed with Dr Ehrlich's opinion of 30 August 1982.

20. On 15 October 1982, Dr Mahony performed a second operation. He freed some adhesions, transplanted the ulnar nerve, and removed part of the medial epicondyle.

21. On 27 May 1983, a third operation was performed by Dr Mahony to free and again implant the ulnar nerve.

22. Because of the applicant's continuing symptoms, which Dr Mahony believed to be "referable to a right ulnar nerve neuritis", he was of opinion on 6 June 1983 that her ulnar nerve was again caught up with scar tissue. He accordingly suggested her admission to hospital for a further exploration of the nerve. It is not clear if this occurred but it appears that it did not.

23. On 4 April 1984, Telecom terminated Mrs Richardson's employment.

24. On 4 November 1987, liability for the applicant's compensation was found to have ceased as from 29 October 1987

The Tribunal had access to many medical reports dating back to the very outset of Mrs Richardson's problems. It heard Dr Mahony give oral evidence. The Senior Member's opinion was that Dr Mahony had been "injudicious" in his treatment of the applicant and that his "ministrations" had ill-served her, although these assertions were not put to the doctor in evidence. The Tribunal also heard evidence from Doctors Swain (a general surgeon) and Thorpe (who specialises in rheumatic diseases), called by the respondent. Each only saw Mrs Richardson on one occasion in early 1988. It was Dr Swain's description of Dr Mahony's treatment as "injudicious" which the Tribunal adopted. Their evidence was, to a greater or lesser extent, critical of Dr Mahony's treatment and quite dismissive of the likelihood that the applicant was in fact suffering from any organic condition at all. They spoke of a functional or psychosomatic overlay. Dr Ehrlich's earlier opinion to the respondent that the surgery was the cause of the applicant's incapacity had led to compensation being paid for another 5 years.
After all this evidence, the Tribunal found itself unable to determine what was the applicant's current condition and did not suggest a psychosomatic condition in this context. The Senior Member said (paragraph 32):

Having regard to the medical evidence called by both parties, I find it impossible to say what caused the Applicant's current condition, be it right medial epicondylitis alone, or subsisting with a right ulna

(sic) nerve neuritis.

Despite being unable to determine what caused whichever of these two conditions she had, the Tribunal then went on to find positively that whatever her condition(s), "both physiological or psychological", they were not caused by either or both of the blows to the elbow at work in February or March 1981. This conclusion, the Tribunal held, bound it in law to "disturb the status quo and affirm the decision ...." to terminate the compensation. The learned Senior Member was of the view that this result followed from the decision of a Full Court of this Court in McDonald v Director General of Social Security (1984) 1 FCR 354.
Whatever legal consequence flows from the Tribunal's finding on causation, I have some difficulty with the finding itself. What medical condition an applicant has and whether a medical condition results from an employment injury, are of course questions of fact, and matters of this kind are for the Tribunal, not me. However, to be valid, such conclusions must be arrived at judicially and have a legal and evidentiary basis. Although seemingly disowning a positive finding on what the applicant's current condition was, the Tribunal appears in substance to have first defined the injury as medial epicondylitis, either alone or jointly with the ulnar neuritis. If this represents the Tribunal's finding of fact, there is, as far as I can see, no evidence that either of these organic conditions resulted or could have resulted from anything other than the particular employment incident(s) relied on or treatment reasonably undertaken thereafter, or both.
However, the Tribunal then went on to speak in vague terms of the possibility of one or more psychological conditions which it did not identify or particularise. If therefore the Tribunal is to be taken as not having definitively determined the conditions or whether they caused incapacity, I find it difficult to see how a legitimate conclusion on causation is open at all. In other words, it is not possible to say that an unidentified condition or combination of conditions was or was not caused by anything.
The applicant argued that when compensation is paid with a knowledge of all the facts, either a legal or evidentiary onus lies on the employer to prove that there has been a change of circumstances. Her counsel argued that by being unable to fix on what the applicant's current condition(s) was/were, the Tribunal was not in a position to find that the condition(s) was/were different to those for which she had been receiving compensation and therefore could not hold that they were not caused by the employment injuries. This probably means a like endorsement of the reverse position that an unidentified condition could also not be found affirmatively to have been employment-caused.
The Tribunal took the view that no onus of proof lay on either party in its proceedings "and that the status quo must remain unchanged, unless the evidence establishes that it should be changed". Rejecting the respondent's submission that the status quo was a primary or initial application for compensation for medial epicondylitis which had first been refused on 4 November 1987, the Tribunal regarded the status quo as the payment of compensation from 14 May 1981 for whatever conditions the applicant had. (It appears that 14 May 1981 was the date the applicant stopped work after returning following the 18 March incident. She was presumably paid compensation without a determination or received some other entitlement for days lost prior to 14 May.) It posed the issue for determination as that "payments should continue to be made unless I am satisfied that the evidence presented to me persuades me otherwise". In other words, it was for Telecom to produce evidence that there had been such a change of circumstances or other cause as would reverse this status quo.
So far as it goes, I agree in substance with the Tribunal's formulation of the appropriate test. I would add that in my view, the status quo includes that the payment of compensation was for the condition referred to in the determination of the Compensation Commissioner and for those conditions certified to the respondent by the doctors throughout the period when compensation was paid. In addition, to effect a cut-off of compensation on 29 October 1987, the change that must be demonstrated is one which occurred on or about that day. I have found nothing in the evidence of this description.
The relevance and repository of an onus of proof in situations of this kind have been matters of some discussion in the cases.
Phillips v The Commonwealth (1964) 110 CLR 347 was an appeal to the County Court of Victoria against a determination by the Compensation Commissioner terminating a worker's compensation which had been awarded in an earlier determination. The High Court (Kitto, Taylor and Owen JJ) held that the rejection of a claim by the Compensation Commissioner ordinarily casts an onus on the worker in the County Court to prove the necessary facts for an award of compensation. However, when the Compensation Commissioner has purported to terminate the worker's right to compensation "under an antecedently existing determination by reason of a material change of circumstances", the onus of proving the "critical facts" is on the employer. The case involved firstly a question as to whether the Commonwealth's liability to pay compensation to the worker on the basis of total incapacity should be terminated. Second, there arose a question whether compensation should be awarded on the basis of partial incapacity causing a diminished earning capacity. The Court held that the onus on the first issue was on the Commonwealth and on the worker on the second.
Applying Phillips on this second matter, a different bench of the High Court in J and H Timbers Pty Limited v Nelson (1972) 126 CLR 625 held by a 3-2 majority that an injured worker claiming partial incapacity bore the onus of proving the difference between what he would probably have been earning but for the injury and what he was earning or was able to earn. With every respect, I question the second part of the Phillips decision and this Nelson conclusion in the Phillips context but accept that I would be bound to apply it if it arose here. In my view it does not.
Similarly, in Allan v Loadsman (1975) 2 NSWLR 789, the New South Wales Court of Appeal, affirming its earlier decisions in Radakovic v R G Cram and Sons Pty Ltd (1975) 2 NSWLR 751 and Shuttleworth v Shuttleworth (unreported 16 October 1975), held that the onus was on an injured plaintiff to establish the quantum of any reduction of income earning capacity as a result of the defendant's negligence. However, the Court acknowledged that the matters of mitigation which by contrast were for a defendant to establish were across a boundary line which was sometimes "difficult to draw".
Indeed in Lombardo v Henne (unreported, 2 December 1977), Glass JA, in a judgment which was not dissented from and was apparently supported by the other members of the Court (Hope and Samuels JJA), said that in a case where the plaintiff claimed permanent total incapacity and the defendant alleged at most a partial incapacity,

there devolved an evidentiary burden upon the defendant to establish that the plaintiff did retain some earning capacity and what he could earn by exercising it. Alternatively there was a true onus on the defendant to make out a case that the plaintiff had not mitigated his damage, namely that he had unreasonably declined the opportunity to rehabilitate himself and could, if rehabilitated, earn up to a certain level.

A fortiori it would seem to me that where an employer alleges no entitlement to compensation at all and the worker, having received compensation for years, resists the employer's move and seeks to retain what she has, a burden must fall on the employer to prove the facts it wishes to have found. If after the fact-finding process, the tribunal of fact is then left in a position where it cannot decide the relevant issues of fact, the employer must be held to have failed and the worker's entitlement should be left intact.
Commonwealth of Australia v Muratore (1978) 22 ALR 176 concerned a worker who had been granted compensation on the basis of having been found partially incapacitated for work by the Compensation Commissioner. Several years later, the Compensation Commissioner determined that the degree of partial incapacity did not prevent the worker from earning at least the amount of his pre-injury average weekly earnings. Compensation was therefore terminated. The High Court held that the Commonwealth bore the onus of proving the facts necessary to establish the reduction of the payable compensation to nil.
Jacobs J (with whom Gibbs, Stephen and Aickin JJ agreed) said at 180:

An employee who has been found to be partially incapacitated for work has his incapacity measured by the extent that the amount per week that he is able to earn in some suitable employment or business is less than his average weekly earnings before his injury (see s 46(2) of the 1971 Act). His partial incapacity for work is only relevant in so far as such a measurement can be made, that is to say, in so far as it produces incapacity to earn the wages which he was previously able to earn. Therefore the Commonwealth, when it alleges that the employee is physically able to earn, in some suitable employment or business, a weekly amount which is not less than his weekly pay at the date of injury, is alleging nothing relevantly different from an allegation that he has no physical incapacity for work producing an incapacity to earn those wages. The position would be no different if it were alleged that his degree of incapacity for work had diminished so that his compensation should be reduced. In both situations the Commonwealth is, or would be, alleging that the circumstances of the employee had changed; and the onus lies upon the party alleging the change of circumstances to prove it. The position is quite different if there has been no previous finding of partial incapacity with a consequent assessment of the compensation payable. It is established that the employee then bears the onus of proving the partial incapacity for work and its reflection in the degree of his loss of ability to earn: J and H Timbers Pty Ltd v Nelson (1972) 126 CLR 625.

Murphy J said at 181:

Where a variation of a previous determination (by the Commissioner or on appeal) is made by the Commissioner and judicial review is sought, the onus is on the Commonwealth to prove the facts and circumstances which justify the variation.

At 182, he said, apparently in disagreement with the second limb of the decision in Phillips:

If the Commissioner varies a determination adversely to the worker, then on appeal by way of judicial review, the onus lies upon the Commonwealth to justify the variation to the extent to which it is adverse to the worker. It is not enough for the Commonwealth to establish that there is something less than total incapacity and then leave it to the worker to establish the full extent of the partial incapacity. This would put the worker in a worse position than if he had been found to be partially (although almost totally) incapacitated in the determination previous to the variation, which would be irrational.

The inappropriateness of these types of approaches to administrative proceedings was asserted in McDonald (above). The applicant had been granted an invalid pension on the basis of her permanent incapacity for work as defined by the Social Security Act. A year later her pension was cancelled, apparently on the basis of a medical finding that she was no longer permanently incapacitated. A Full Court of this Court (Woodward, Northrop and Jenkinson JJ) was of the opinion obiter that no legal onus of proof operated in the Administrative Appeals Tribunal, although "someone must set in motion the process which establishes the entitlement" (per Woodward J at 357). His Honour also said:

Certainly if no material is available to the decision-maker, or if available material leaves the decision-maker quite uncertain whether the person is permanently incapacitated, the claim must fail. But I think it would be artificial to describe this situation in terms of the legal onus of proof.

Woodward J said that there can be no so-called "evidential onus" unless the relevant legislation provides for it. He held that the Social Security Act did not. Neither, I would add, does the Compensation Act. At 358, his Honour said:

If the AAT finds itself in a state of uncertainty after considering all the available material, unable to decide a question of fact either way on the balance of probabilities, it will be necessary for it to analyse carefully the decision it is reviewing. If, for example, it is a decision whether or not to cancel a pension in the light of changed circumstances, then it has failed to achieve the statutory requirement of reaching a state of mind that the pension should be cancelled. If, on the other hand, it is a decision, to be made in the light of fresh evidence, whether or not the pension should ever have been granted in the first place, then it has failed to be satisfied that the person ever was permanently incapacitated for work.

Jenkinson J said at 369:

There is, however, in my opinion a dilemma in which either a court or an administrative authority determining rights or liabilities may find itself, for the resolution of which the same principles are applicable by each tribunal. Either tribunal may find itself unpersuaded either that a circumstance exists or that it does not exist. (The same may be said of a past or a future circumstance.) The court or the administrative authority will determine, by reference to the substantive law, whether it is the existence or the non-existence of the circumstance which is determinative of the question for decision. In this case the AAT would determine whether the Social Security Act 1947

(Cth), upon its proper construction, required that the applicant's pension be cancelled if she were found not to be permanently incapacitated for work, or required that the pension be cancelled unless she were found to be permanently incapacitated for work. In the former case the Tribunal's lack of persuasion that permanent incapacity did not exist would preclude cancellation. In the latter case the Tribunal's lack of persuasion that permanent incapacity did exist would result in cancellation. An application of the same principles by a court in resolution of the same dilemma is to be found in Maher-Smith v Gaw (1969) VR 371. In a court the principles are expressed in terms of the onus or burden of proof. When those principles are applied in an administrative tribunal, there may be risk of misconception if the curial modes of expression are employed.

It seems that however labelled, and whatever nomenclature is used, it is perfectly proper to approach administrative proceedings in terms of responsibilities to call evidence and affirmatively to persuade the tribunal of the point of view being advocated.
Hill J in Casarotto v Australian Postal Commission (1989) 86 ALR 399 thought that McDonald should, in this connection, be confined to the Social Security Act. Because I share his Honour's obvious concerns about the possible ramifications of McDonald outside the social security area, I should philosophically like to agree. Indeed, in another context altogether, I have expressed similar views about the applicability of a strict onus of proof in administrative tribunals: see Erbs v Overseas Corporation Pty Ltd (1986) EOC 92-181 at p 76,721; Bennett and Anor v Everitt and Anor (1988) EOC 92-224 at p 77,270 ff, although these decisions were primarily based on the words and context of the particular legislation under consideration.
On the other hand, Davies J in Australian Postal Commission v Burgazoff (unreported 8 May 1989) apparently regarded himself as bound by McDonald in a non-social security situation with some similarities to the present case. His Honour also cited with approval the remarks of Fox J in Ladic v Australian Capital Territory Health Commission (partly reported in (1982) 5 ALN N60):

Subject to relevant legislation, it is for the Tribunal to decide upon its own procedure. Although in many ways resembling a court of law, and although it finds it helpful to follow, in general, the course of proceedings in a court of law, it must always be remembered that its role is fundamentally administrative. Its task is to inquire. By way of contrast, the task of a court of law is, in general, to decide which of two opposed cases is to be preferred. It was well within the competence of the Tribunal in the present case to decide at what stage Mrs Ladic should have been required to give evidence. The term 'onus of proof' (or 'burden of proof') has much of its application as an incident of the adversary system of litigation found in common law countries. This is not the occasion to examine its meaning and application in proceedings before the Tribunal. It was undoubtedly necessary for the Tribunal in the present case to be satisfied, on the facts, of certain matters. This was a legal burden, or requirement, and could, as a matter of common sense, be said to have rested with the party seeking the result. If there had been continuing periodical payments for incapacity, one matter of which the Tribunal would have had to be satisfied was that there had been a change, justifying cessation or reduction of payments (see The Commonwealth v Muratore

(1978) 141 CLR 296).

With deep respect to Davies J, whose vast experience in such matters demands unqualified acknowledgement, perhaps it should not be regarded as binding because the Court's remarks on onus of proof were obiter dicta. Further, the relevant contexts of the Social Security and the Compensation Acts are so similar that it is difficult to see why McDonald should be excluded from the second as implied by Hill J. In any event, if they were intended to represent a statement of general principle on the subject of onus of proof in administrative tribunals, I regret that I am not in a position to agree with his Honour's remarks in Casarotto at 413:

Thus in a practical sense, if not in a strict legal sense, it will be the responsibility of an applicant for review to ensure that there is laid before the tribunal all material which it will be necessary for the tribunal to have before it to enable it to come to a decision. Where, as here, material necessary to an applicant's case is not laid before the tribunal (and the reason for it not being put before the tribunal was that to do so would have been inconsistent with the applicant's case that there had been no recovery and that compensation should continue indefinitely) the applicant will not be able to complain if the tribunal, doing the best it can with the evidence before it, reaches a conclusion which is adverse to the applicant.

With profound respect I do not believe that this view can be applied as generally as perhaps expressed. I do not think that it is applicable, for example, to the present case. Of course, as Hill J pointed out in Elleissy v Australian Telecommunications Commission (unreported 14 July 1989), it was not necessary in Casarotto to decide whether one party or the other bore an onus of proof.
Much as it is attractive to try to avoid the terminology of onus of proof or evidential burden in this type of case, and understandable to propose formulations which avoid these legalistic and adversarial terms, it seems to me with respect to go against both authority and fairness to do so. I do not read McDonald in this way. Nor can I see why, without clear legislative direction, the principles developed in Phillips and the other cases should be excluded from analagous situations elsewhere. The result would be quite gross. It would firstly mean that Commonwealth employers and employees would be treated differently to their State counterparts who in the main carry such burdens and obligations, as appropriate to the circumstances. Secondly, it would mean that the outcome of cases like Phillips would or may be changed merely because the forum for consideration of the matters had moved from County or District Courts to the Tribunal, without express words in the Tribunal's own Act or in other statutes such as the Commonwealth Functions (Statutes Review) Act 1981 designed to achieve that result.
Thirdly, in the context of the present case, an injured worker of limited means, having demonstrated an entitlement to compensation to the satisfaction of an employer with comparatively limitless resources for 7 years, through the reports of several medical experts, should not be required to prove an entitlement from the outset. What happens if the doctors who supported her years before have died or retired and their notes have been lost or destroyed? What does she do if her witnesses cannot be found? How is it just that without any change of circumstances having been demonstrated, but merely one or two newly obtained adverse or different medical opinions, she should be held entitled to keep the compensation she has received to date but not entitled to any more? If the situation were reversed and she had been refused compensation for 7 years, her chances of a favourable determination when she eventually found a doctor or two to support her would be slim indeed. Nor would she be able to require the respondent to prove a case for the retention of the refusal as opposed to her being required to prove a case for compensation.
I agree with the Tribunal that this case does not strictly turn on questions of onus. The Tribunal was required to consider whether the applicant was entitled to a continuation of her compensation. To determine this question, it was necessary for the Tribunal to take into account the evidence both ways as to whether Mrs Richardson was, at the time of its deliberations, suffering from any employment-caused or aggravated condition(s), and if so whether and to what extent she was incapacitated from it/them.
Those issues had to be determined regardless of where any onus lay and however the onus was defined or limited. If the applicant bore a legal onus to prove such issues affirmatively, she sought to discharge it by giving evidence herself, by calling Dr Mahony and by several of the so-called "T documents" admitted into evidence. It would have been for the Tribunal to determine the acceptability of that evidence on the probabilities as compared to the evidence presented by the respondent.
If, on the other hand, the respondent bore a legal onus to prove a change of circumstances or in the status quo, the task for the Tribunal was virtually the same, although it would of course have had to reverse the mechanism of its consideration to decide if the respondent had weighed down the probability scales in its favour.
If the burden, on whomever it lay, was solely evidentiary, each party addressed the obligation by presenting evidence to prove the case being advocated. If, contrary to my belief, the "status quo" test posed by the Tribunal was not correct, the question facing the Tribunal would have been whether the applicant's evidence made out the case she sought to argue. This was that she was still suffering from, and incapacitated by, the condition(s) for which compensation had been paid for many years, whether as originally determined by the Compensation Commissioner or in the form of varying or later diagnoses which had often been certified to during the period.
In all of these situations, the Tribunal could only determine the case by being persuaded or not persuaded by the evidence tendered on the two issues, and by making findings or declining to make findings on both of them.
What in fact the Senior Member did in this case was to say that:

1. the medical evidence did not enable him to decide which of two conditions the applicant had (the medial epicondylitis alone or together with the ulnar neuritis);

2. the evidence also did not permit him to say what caused whichever of these conditions she had;

3. whichever of the conditions she had, or whether her problems were wholly, largely or partly psychological, they were not employment-caused or related, nor were they due to the negligence of her doctor.

Posing the test as whether the respondent had therefore satisfied it by evidence that the status quo (i.e. the acceptance of liability to pay compensation on the basis that the applicant was suffering from right lateral or medial epicondylitis and ulnar neuritis) should be disturbed, the Tribunal then regarded itself as legally bound by the factual findings or non-findings to do so.
As I read the evidence and the Tribunal's determination, the only way this reasoning process could be logically framed would be as follows:

1. The applicant was entitled to a continuation of compensation for the medial epicondylitis and ulnar neuritis unless the respondent persuaded the Tribunal to the contrary by evidence.

2. Although the respondent's evidence was that the applicant probably had neither condition and was probably now afflicted wholly or mainly by a functional or psychosomatic overlay, this evidence permitted uncertainty to arise over what was the applicant's state of health.

3. Because the respondent's evidence was that this overlay was unrelated to the employment and was probably due to medical negligence or mistreatment, at least in part, the applicant's entire complaints were equally not employment-related.

4. This was a change of circumstance calling for a cessation of compensation.

I cannot see a way in which either the law, the evidence or the factual findings of the Tribunal could legitimately permit such a reasoning process. Firstly, if it is one at all, this is not the type of "change of circumstance" to which the authorities are referring. A change of circumstance does not occur merely because there is now produced some new evidence which is contrary to the earlier evidence on which the status quo was established. The respondent's evidence here did not establish that whereas Mrs Richardson had suffered for 7 years from a compensable condition entitling her to compensation, this condition had now ceased and her problems now were the result of a non-compensable condition. Put at their base, the views of Drs Swain and Thorpe were that she at most had a lateral epicondylitis for a short time, that she has never had a medial epicondylitis or an ulnar neuritis, that she was badly treated by the doctors, and that she now suffered in major part or wholly from the effects of that treatment or from a non-organic overlay which was unrelated to the employment but flowed significantly from the treatment she had received, or from both.
That is not a change of circumstances as referred to in the cases; it is a different case altogether which initially the Compensation Commissioner and later the respondent itself had long since rejected in favour of a determination and an acceptance respectively of precisely the opposite conclusions. No compensation case would ever finish if this type of procedure and these conclusions were open. In any event, these medical views were either rejected (medical negligence or inappropriate treatment caused part or all of her problems) or not accepted (her problems were wholly or partly caused by functional or other overlay) by the Tribunal.
Secondly, if the evidence did not enable the Tribunal to determine the condition(s) from which the applicant was suffering, it could not have determined that they were other than those for which she had been receiving compensation. Thus the status quo of the applicant being paid compensation for any of (at least) three organic conditions would have to be preserved. Without explanation and without challenge to the Compensation Commissioner's earlier determination or any other effort to have entitlement to compensation reviewed, Telecom's nearly 7 years of compensation payments for incapacity arising out of these conditions are tantamount to an admission of liability for that period. Unless and until there was clear credible evidence of a retrospective contrary diagnosis or unless there could be established a true change of circumstances, that admission would govern entitlement on a continuing basis just as it has done for the past. The respondent's burden of overthrowing this current and cumulative state of affairs would be considerable and might be difficult, but that is what the authorities require and what the Tribunal set, rightly in my opinion, as the task.
The case presented by the respondent was not about causal connection. Apart from a short initial incapacity from lateral epicondylitis, it was that there had been a wrong diagnosis of the applicant's condition almost from the outset. It is true of course that the evidence in this case, so far as it established that Mrs Richardson had a right sided epicondylitis, related to the medial rather than the lateral side as had formed the basis of the original determination of the Compensation Commissioner. However, liability to pay compensation for incapacity arising from and the costs of treatment for the medial condition and for the ulnar nerve problem had long been accepted. If the evidence did not permit the Tribunal to determine what condition(s) the applicant had or the cause of the condition(s), how did the respondent demonstrate the basis for a change in the status quo from the long accepted cause? In the presence of an acceptance of a causal connection to employment for so long, and with no finding of any other cause, the medical evidence that she had never had these conditions at all could hardly provide a basis for a finding that there had been a relevant change of circumstances. Simply put, the Tribunal was not persuaded that there had been a change in the applicant's condition. The applicant was thus entitled to have her compensation continued.
Telecom argued that the fixing by the Tribunal of the onus to justify change on the respondent was erroneous but that the applicant benefited from the error. It submitted that the two organic conditions medial epicondylitis and ulnar neuritis were "new" and had not previously been accepted as compensable. Hence, it said, the onus was on the applicant. I disagree with all of these contentions. Firstly, whatever the language used, no onus was in fact imposed at all, and the applicant did not gain an advantage from what was done. Second, the diagnoses of these two organic conditions went back to at least May 1982; the medial epicondylitis even further. I understand the respondent's point of view, advanced by Drs Swain and Thorpe, that a blow or two on the outside of the elbow would not ordinarily lead to pain inside the elbow much later. However, the respondent knew of this possible anomaly many years before moving to terminate compensation, and resolved it in favour of the applicant all that time by paying compensation and the costs of surgical and other hospital treatment involving these conditions on 3 or 4 occasions.

There was some argument in this case about the appropriate legal principles if the applicant's conditions were the result of medical negligence or mistreatment. As a consequence, the doctrine or principle of novus actus interveniens was discussed, and the Tribunal placed an onus on Telecom to prove the necessary facts to activate it. Although this approach sits uneasily with its general view that there was no onus in its proceedings, this view was clearly correct if novus actus was relevant and applicable to this case.
Medical negligence and its legal consequences at common law are quite different from whether the conditions were caused by reasonably undertaken medical treatment in workers' compensation situations where, if the necessary facts are established, compensation is payable: Rothwell v Caverswall Stone Co Ltd (1944) 2 All ER 350; Garner v Burns Philp and Co Ltd (1949) 49 SR (NSW) 270. Although this matter was not expressly raised in the Notice of Appeal, no objection was taken to the applicant arguing an entitlement to compensation on this basis. There appears to have been some confusion in this respect both in the Tribunal and in this Court on the part of Telecom. The Tribunal was bound to inquire here whether Mrs Richardson's present disability may have been caused by reasonably undertaken medical treatment, whether or not negligently administered. This requirement would equally be applicable if the matter is viewed from the standpoint advocated by the respondent, that the Tribunal had to be affirmatively satisfied by the applicant of the prerequisites of entitlement to compensation. It is especially applicable if employment nexus is to be challenged.
Dr Swain at least, and in the Tribunal's view Dr Thorpe as well, expressed the opinion that her present incapacity was the direct result of Dr Mahony's treatment. As Telecom did not contend, and as there was no evidence, that this treatment was not reasonably undertaken, in all the circumstances, from the applicant's point of view, this alternative approach was bound to inure to the applicant's benefit, if change of circumstances was rightly held to have been established. However, the Tribunal's factual conclusions on the matter were clear and they are final and conclusive. The Senior Member said:

........ ..... no evidence was adduced to show that his (Dr Mahony's) treatment was such that it could affirmatively be said to be the cause of the Applicant's current condition...... I am not able to find affirmatively and as a matter of fact, as opposed to suspicion or conjecture, that Mr Mahony's injudicious surgical interventions and other treatments resulted in the Applicant's current condition.

As it seems to me, this means that the Tribunal was not satisfied that Telecom had demonstrated that the surgery and other treatment were the causes of the applicant's current condition such as to remove Telecom's liability to pay compensation. The fact that Telecom had rejected Dr Ehrlich's earlier opinion to this effect in favour of continuing to pay compensation means that whether this is a novus actus case or a change of circumstances case, the result in onus or evidentiary terms is the same.
Hence, even if legally possible, it is unnecessary for me to consider this matter. Faced with possible views both ways on this question, although as it rightly pointed out without this suggestion having been directly put to Dr Mahony in evidence, the Tribunal found that Dr Mahony's surgery and conservative treatment was not shown to be the cause of the applicant's conditions. Expressly included was a finding that injecting the medial aspect of her right elbow was not their cause. This is a finding of fact I am not permitted to disturb: s.44 of the Administrative Appeals Tribunal Act, and there is no cross appeal in any event asking me to do so.
For the reasons given, I am of opinion that the Tribunal's determination was tainted by legal error. The question then arises as to what should now be ordered. There do not seem to be any new factual issues to be examined and resolved. Nor has any possible new evidence been suggested on the true issues to be considered. Accordingly, there seems nothing to remit to the Tribunal which could not as easily and somewhat less expensively be determined by this Court in these proceedings. It would also facilitate any further appeals. Accepting the factual findings of the Tribunal and applying the appropriate law, it seems to me with respect that the applicant is entitled to somewhat different consequences than found favour with the Tribunal.
I therefore set aside the conclusions and orders of the Tribunal and in lieu thereof substitute the following findings on the basis of the Tribunal's view of the facts and the appropriate legal principles:
1. The evidence did not establish that the conditions for

which the applicant has been paid compensation since 19 March 1981 pursuant to the determination of the Compensation Commissioner's delegate on 16 June 1981 and otherwise, did not exist or had changed.

2. The evidence did not establish any new or other cause for these conditions than the accepted incidents at work on 16 February and 18 March 1981 and/or subsequent reasonably undertaken medical treatment for which compensation has been paid since 19 March 1981.

3. The evidence did not establish that the applicant's problems have a psychological basis which is not employment-caused or related, or resulted from medical treatment reasonably undertaken.

4. The evidence did not establish that the applicant's current conditions were caused by any negligence on the part of or treatment by any medical practitioner.

I therefore set aside the decision of the Compensation Commissioner's delegate of 4 November 1987 and find that the respondent is liable to pay to the applicant the appropriate level of compensation from 29 October 1987 and continuing for injuries sustained by her in the course of her employment by the respondent on 16 February and 18 March 1981. The respondent will pay the applicant's costs.

[1990] FCA 136

09 APRIL 1990