Bowen v Military Rehabilitation and Compensation Commission - [2006] FMCA 1879

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BOWEN v MILITARY REHABILITATION & COMPENSATION COMMISSION

[2006] FMCA 1879

ADMINISTRATIVE LAW – Review of Administrative Appeals Tribunal decision – Tribunal upheld decision of Military Rehabilitation and Compensation Tribunal refusing compensation for the death of a member of the military – AAT did not express its reasons clearly for rejecting all claims of the applicant – decision set aside – Tribunal to determine the matter according to law.

Administrative Appeals Tribunal Act 1975, s.44
Safety, Rehabilitation and Compensation Act1988, ss.4, 6A ,17
Federal Court Rules Order 82 Rule 6

Archibald Russell, Ltd v Corser [1921] 1 AC 351
Commonwealth Bank v Percival (1988) 82 ALR 54
Holt v Comcare [2002] FCA 1484
Waterford v Commonwealth of Australia (1987) 71 ALR 673
Sean Investments v Mackellar [1981] 38 ALR 363
Comcare Australia v Lees (1997) 151 ALR 647
Comcare v Houghton (2003)128 FCR 485

Applicant:

MARY MARGARET BOWEN

Respondent:

MILITARY REHABILITATION & COMPENSATION COMMISSION

File Number:

MLG 734 of 2006

Judgment of:

Turner FM

Hearing date:

24 October 2006

Date of Last Submission:

24 October 2006

Delivered at:

Sydney

Delivered on:

22 December 2006

REPRESENTATION

Counsel for the Applicant:

Mr E.P White

Solicitor for the Applicant:

KCI Lawyers

Counsel for the Respondent:

Mr J. Lenczner

Solicitor for the Respondent:

Australian Government Solicitor

THE COURT ORDERS THAT:

The appeal is allowed
The decision of the Tribunal dated 30 March 2006 be set aside.
The matter be referred back to the Tribunal constituted by the same member for further consideration and determination according to law without hearing further evidence .
The respondent pay the applicant’s costs of this matter to be taxed by the Registrar.

THE COURT FURTHER DIRECTS:

That the Tribunal provide its reasons and findings on the question of whether or not the aggravation of pain occurred, and if it did, whether or not the aggravation of symptoms constituted an injury which is compensable under the Act.
That the Tribunal state clearly its’ reasons for rejecting each basis of claim put by the applicant.
In particular, the Tribunal express its reasoning and conclusions on whether or not the medication taken by Dr Bowen, and the taking of the medication, caused an increase in pain, and whether or not Dr Bowen suffered an injury in the sense of an aggravation of pain or an increase in symptoms.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 734 of 2006

MARY MARGARET BOWEN

Applicant

And

MILITARY REHABILITATION & COMPENSATION COMMISSION

Respondent

REASONS FOR JUDGMENT

Introduction

This is an appeal against a decision of the Administrative Appeals Tribunal (“the Tribunal”), handed down on 30 March 2006.
The late Dr Bowen (“Dr Bowen”) was a doctor in the Army. It is alleged that his psychiatric condition (depression) arose out of his employment with the Army.
Dr Bowen was prescribed a range of anti-depressant medications which were paid for by the Army. It is alleged that the medications caused and/or aggravated his gastric condition, and that required medical treatment. Dr Bowen had surgery on 23 June 2003 and died as a result of complications.
Dr Bowen’s widow (“the applicant”) applied to the Military Rehabilitation and Compensation Commission for compensation. The Commission denied that the psychiatric condition was work-related, and that the medication had caused the gastric condition. It refused the claim for compensation in relation to the death of Dr Bowen.
The applicant sought a review of the first finding. The Administrative Appeals Tribunal` determined that Dr Bowen’s psychiatric condition was work related.
The applicant sought a review also of the Commission’s decision refusing compensation. That matter was decided by the Tribunal affirming the decision refusing compensation.
The applicant has appealed to this Court against the latter decision, pursuant to s.44 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”). Section 44(1) provides relevantly as follows:
Appeal on a question of law
(1) a party to a proceeding before this Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.
On 2 June 2006 the Federal Court made an order by consent that the application be transferred to the Victorian Registry of the Federal Magistrates Court, pursuant to Order 82 Rule 6 of the Federal Court Rules.
The matter came on for hearing before this Court on 24 October 2006. At that time, leave was granted to amend the applicant’s notice of appeal. Mr E.P White appeared for the Applicant, with Mr J Lenczer appearing for the Respondent.

Applicant’s Contentions of Fact and Law

Counsel for the applicant made the following contentions:
i)The applicant appeals under s.44 of the AAT Act.
ii)While serving in the army, the late Dr Bowen lodged a claim for compensation for stress, depression and anxiety, which claim was refused. That determination was affirmed on review.
iii)That decision was set aside by the Administrative Appeals Tribunal, which decided that Dr Bowen’s psychiatric condition arose out of his employment with the military.
iv)While a member of the army, Dr Bowen was prescribed and took a range of anti-depressant medications. He experienced severe reflux type intestinal symptoms, and a gastroscopy revealed a hiatus hernia, oesophagitis and areas of Barrett’s mucous.
v)Dr Bowen’s surgeon, Gavin Wright, reported that not only was Dr Bowen a candidate for definitive antri-reflux surgery, he had actually run out of all other options. Following this, Dr Bowen had an elective Laparoscopic Nissen Fundoplication, and suffered severe post operative bleeding from which he died.
vi)The Commission denied the applicant’s claim for compensation. That decision was affirmed on review by the Administrative Appeals Tribunal.
vii)The claim for compensation was originally put in 3 ways, although reduced to 2 at the hearing (see Transcript page 5). The claims were as follows:
a)The depression was compensable. Medication was required to treat this depression, which aggravated the condition or caused a new condition (oesophagitis). It was reasonable for Dr Bowen to have the operation, and the consequences of that operation were compensable.
b)The depression was compensable, and medication was required. Dr Bowen required an operation to enable him to take the medication. It being reasonable to have the operation, the consequences were compensable.
viii)The third claim, under s6A of the Safety, Rehabilitation and Compensation Act1988 (“the Comcare Act” or “the Act”), is as follows:
Whether or not depression was compensable, Dr Bowen received treatment for it, which treatment caused or aggravated oesophagitis. This resulted in Dr Bowen having an operation with unintended consequences, which in turn should result in compensation.
ix)The Tribunal’s decision was confined to the third claim, being whether an entitlement arose under s.6A.
x)The Tribunal failed to determine the alternate ways that the case was put. An entitlement can arise independently…, s.6A being an extension of liability or entitlement created by the general provisions of the Act.
xi)Dr Bowen was unable to take medication for depression because of the pain associated with the medication and the aggravation of the condition of oesophagitis caused by the medication.
xii)The Tribunal failed to consider an entitlement apart from s.6A of the Act.
xiii)In any event, in her consideration of an entitlement under s.6A of the Act, she limited herself without warrant to the consideration of whether anti-depressants caused oesophogitis, rather than the question it was obliged to consider, that is, whether Dr Bowen’s death was compensable within the meaning of the Act.
In determining the application on the grounds in paragraphs 45 and 46 of the decision, the applicant contended that the Tribunal fell into error:
i)In declining to find that transient increases in pain can amount to aggravation;
ii)In failing to find that it was reasonable to have medical treatment in order to be able to take anti-depressant medication;
iii)In failing to find that the incapacity, which resulted from that reasonable medical/surgical treatment, was materially contributed to by the relevant injury;
iv)The member failed to consider an entitlement apart from s.6A.
v)In considering s.6A she (the Tribunal member) limited herself to considering whether anti-depressants caused oesophagitis, rather than whether Dr Bowen’s death was compensable.
The applicant contended that Dr Bowen’s death was compensable as it arose out of reasonable medical treatment for a compensable injury.
Alternatively, it was contended that the Tribunal failed to give adequate reasons for finding that the anti-depressant medication did not, or could not, cause or contribute to, Dr Bowen’s oesophagitis.

Applicant’s Additional Written Outline of Arguments

The applicant relied upon an additional written outline of arguments, which set out the following:
i)When an injury suffered in compensable circumstances causes death (assuming dependency) then pursuant to s.17 of the Safety, Rehabilitation and Compensation Act 1988, compensation is payable.
ii)2…
iii)The Administrative Appeals Tribunal found that Dr Bowen’s death was caused in compensable circumstances, and referred questions as to dependency and quantum back to the Military Rehabilitation and Compensation Commission for determination.
iv)The sole question for the AAT was whether an “injury” within the meaning of the Act, resulted in Dr Bowen’s death.
v)“Injury” is defined in ss.4(3) & 6A of the Act.
vi)The Tribunal found that Dr Bowen suffered from dysthemia (sic) and depression, which arose from his employment.
vii)The circumstances of Dr Bowen’s death are explained in the Tribunal’s decision at pages 6, 7, 10 &14.
viii)Further to the statutory definition of “injury”, a number of different ways of establishing an entitlement arise. They are as follows:
a)The first way: Pursuant to s.6A of the Act, an entitlement arises in particular circumstances, as applicable to this case. Specifically, Dr Bowen was a member of the Defence Force, during which time he was prescribed medication in respect of a compensable injury, which medication resulted in an unintended consequence of the treatment (including its’ sequelae), thus an entitlement arises.
In this case, an entitlement arose under s.6A as described in the contentions paragraph 10(viii) above - whether or not the condition of depression was compensable; while in employment, Dr Bowen had received treatment for the condition; which treatment caused or aggravated the oesophagitis; which resulted in an operation with an unintended consequence; which would therefore result in compensation.
b)The second way is paraphrased in contentions in paragraphs 10(vii)(a) and 10 (vii)(b) above - An injury (death) was suffered as a result of treatment for a condition in respect of which compensation was payable, in circumstances in which it was reasonable to have treatment.
Section 4(3) of the Act is a statement of the principle that, “incapacity that results from reasonable surgical or medical treatment for an injury of course results from or was materially contributed to by the injury”: Archibald Russell, Ltd v Corser [1921] 1 AC 351.
ix)This last proposition raises a number of subsidiary questions, including the need to define and clarify what the injury was in respect of which medical treatment was obtained.
x)“Injury” includes the aggravation of symptoms i.e. pain.
xi)“Aggravation” includes continuing susceptibility of (sic) to symptoms
xii)The member limited herself to considerations under s.6A of the Act.
xiii)The question posed by the Tribunal in paragraph three of the decision is in general terms, not specific to the Act, and is too narrow. The member did not consider whether Dr Bowen had suffered an injury in the sense of aggravated pain (ie, an increase of symptoms). This is clear from paragraph 46 of the decision which limits consideration to the existence of the condition simpliciter.
xiv)This conclusion derives from the evidence of Drs Reid and Stevenson, which concentrated on the cause of the condition itself rather than the symptoms and increases in pain.
xv)Error of Law: failure to consider the proper question is an error of law.
xvi)Inadequacy of reasons: there is no clear reasoning process in paragraphs 40 to 46 by which the member found against the applicant on the question of whether or not aggravation of symptoms constituted an injury.

Applicant’s oral submissions

Oral submissions were made in support of the applicant’s claim as follows:
i)The whole question for the Tribunal was whether an injury, within the meaning of the Act, resulted in Dr Bowen’s death (Transcript page 2 line 27).
ii)“Injury” includes aggravation (s.4 of the Act). S.4(3) provides:
3) … any physical or mental injury or ailment suffered by an employee as a result of medical treatment of an injury shall be taken to be an injury if, but only if:
(a) compensation is payable under this Act in respect of the injury for which the medical treatment was obtained; and
(b) it was reasonable for the employee to have obtained that medical treatment in the circumstances.
iii)S.6A(2) provides:
(2) If, at any time, whether before, on, or after, 1 December 1988:
(a) an employee to whom this section applies received or receives medical treatment paid for by the Commonwealth; and
(b) as an unintended consequence of that treatment the person suffered or suffers an injury;
the injury to the employee is taken to have arisen out of, or in the course of, the person's employment, whether or not the person has remained an employee to whom this section applies.
iv)The Tribunal found that Dr Bowen’s psychiatric condition of dysthymia and depression arose out of his employment.
v)The claim for compensation is put in two ways:
a) The first way (under s.6A): Dr Bowen had been a member of the Defence Force, during which time he had been prescribed medication in respect of a compensable condition (depression). This medication resulted in an unintended consequence of the treatment, including its sequelae, and in those circumstances an entitlement arises (Transcript page 5),
b) The second way (as paraphrased in paragraphs 10(vii)(a) and (b) above): An injury (death) was suffered as a result of treatment, or (sic) for a condition in respect of which compensation was payable, and in circumstances in which it was reasonable to have the treatment (Transcript page 5 line 17).
vi)S.4(3) encapsulates the principle “that incapacity which results from reasonable medical treatment for an injury of course results from, or is normally contributed to by, the injury”: Archibald Russell v Corser (supra).
vii)“Injury” includes aggravation of symptoms (eg pain). In Commonwealth Bank v Percival (1988) 82 ALR 54 at 57 (line 37) the Federal Court of Australia stated:
…a symptom of an injury or disease is part of the condition in respect of which compensation for incapacity is granted. Pain is probably the most common symptom of injury or disease. It is equally the most common factor leading to compensable incapacity…
viii)The Court continued at page 58 (line20):
Those decisions treated the symptoms of a disease as part of the disease. With that view we entirely agree.
The Court accepts that submission by the applicant, and, supported by other parts of the decision, it leads to the possibility that when the Tribunal was considering the issue of disease (Dr Bowen’s depression), it could have been considering the symptoms of the disease also. It is the person seeking to impeach an exercise of statutory power who bears the onus of establishing impropriety in the exercise of that power: Australian Securities Commission v Lucas (1992) 36 FCR 165 at 177.
The applicant also made the following oral submissions:
i)Pain brought on by work activity constitutes an aggravation of the underlying condition (Transcript page 9).
ii)Aggravation also includes a continuing susceptibility of (sic) to symptoms (Transcript page 10).
The Court accepts both those submissions.
iii)In making the decision, the learned member limited herself to the consideration of an entitlement to compensation within the meaning of s 6A of the Act. (Transcript 11 line 16).
iv)Whilst the question posed by the Tribunal in paragraph 3 of the decision is in general terms, it is not specific to the terms of the legislation and…is so narrow as to exclude any proper consideration of the alternative means of entitlement. (Transcript 11 line 18).
The Court accepts that the question posed in paragraph 3 of the decision is in general terms, but rejects that it is so narrow as to exclude any proper consideration of the alternative means of entitlement. However, it appears that the Tribunal limited its consideration, and did not go on to consider side effects, and aggravating or accelerating effect on any pre-existing gastric condition.
The question posed by the Tribunal is, in any event, wide enough to encompass consideration of each way that the applicant put her case (as recorded in transcript page 5), but that does not mean that the Tribunal decided, or set out its reasons for deciding, the issues raised.
v)The applicant continued, asserting that, an example of the Tribunal’s approach can be seen by the legislation quoted in paragraph 4 of its decision.
The Court disagrees; the applicant claimed an entitlement under s.6A, and the Tribunal properly quoted that section. It then set out the definition of “injury” in s.4(1), which includes “(c) an aggravation of a physical or mental injury”. This indicates that the Tribunal may have had regard to the aggravation of the injury.
vi)The applicant continued; setting out s6A of the legislation is but one example of the member confining herself to consideration of that legislative means of entitlement and excluding from her consideration other means of legislative entitlement.
The Court disagrees; a claim is made pursuant to s6A. It was proper for the Tribunal to quote that section.
vii)The applicant asserted that at paragraph 40 of her decision, the learned member commenced the consideration of the issues. She expresses her conclusion in paragraph 46. The reason for her affirming the decision under review, which was to the effect of denying the applicant compensation, is set out in paragraph 46, which the applicant says properly understood is to the effect that no entitlement to compensation arose under s.6A(2) of the Act (Transcript page 11).
Paragraph 46 can possibly, but not clearly, be taken as rejecting both ways the claim is put, and include a rejection of the claim based on aggravation. Further, the Tribunal’s reasoning is set out in Paragraphs 42 to 46, not just paras 45 and 46
In paragraph 42, the Tribunal stated that “there was no opportunity to find out the basis for Dr Wright’s comment that Dr Bowen had run out of options; or why he believed that the anti-depressants were the cause of Dr Bowen’s reflux oesophagitis”.
In paragraph 43 the Tribunal noted that Drs Cronin and Walton indicated that patients taking anti-depressants suffered from gastric symptoms. However, neither of them had encountered another patient who needed surgery as a result of the gastric distress arising because of the anti-depressants. Dr Cronin stated that it was possible that the symptoms were independent of the anti-depressants. Both psychiatrists conceded that they do not have the necessary expertise to determine whether the anti-depressants led to the oesophagitis.

In paragraph 44 the Tribunal noted that Drs Reid and Stevenson described their clinical experience and that of colleagues qualified in the area: none of whom thought that the use of selective serotonin re-uptake inhibitor anti-depressants would cause reflux oesophagitis.
In paragraph 45 the Tribunal stated that it preferred the evidence of Drs Reid and Stevenson, who have expert knowledge of the relevant condition. They were both adamant that the medication could not cause or contribute to Dr Bowen’s oesophagitis.
The Court finds that it was open to the Tribunal to prefer the evidence of Dr’s Reid and Stevenson’ and conclude that Dr Bowen’s oesophagitis and Barrett’s oesophagus did not constitute an injury or aggravation of an injury that was an unintended consequence of the anti-depressants. Furthermore, that conclusion is one of fact and is not reviewable unless it was not properly open on the evidence: Holt v Comcare [2002] FCA 1484 at paragraph 21.
The Tribunal had evidence before it for it to reject that it was reasonable to have the treatment; however the Tribunal did not record reaching such a conclusion. The assertion that it “was reasonable to have the treatment” was an essential component of the second way that the applicant put her case.
The applicant further submitted:
i)The learned member did not consider whether Dr Bowen suffered injury in the sense of an aggravation of pain or an increase of symptoms (Transcript page 12)
Although the Tribunal posed a relevant question to be determined, it is not clear from its reasons, how it reached its conclusions.
ii)Paragraph 46 reveals that the learned member did not consider whether Dr Bowen suffered injury in the sense of an aggravation of pain and an increase in symptoms, but rather, the applicant contended, limited her consideration to the existence or cause of the oesophagitis simpliciter.
This puts the case slightly differently as being, “whether the Tribunal considered if Dr Bowen suffered injury in the sense of an increase of pain and an increase in symptoms?”
The Court rejects the applicant’s submission that the Tribunal’s decision reveals that it did not consider whether the late Dr Bowen suffered injury in the sense of an aggravation of pain and an increase in symptoms. However, it did not set out clear reasoning for rejecting the claim.
As previously stated, “injury” includes an aggravation of symptoms, and symptoms includes pain: Commonwealth Bank v Percival, surpa page 57 line 30 to 40). The Tribunal concluded (at paragraph 46), that it was not satisfied that Dr Bowen’s condition constituted an injury or aggravation of an injury (here read “pain”). It therefore appears to have considered whether Dr Bowen suffered injury in the sense of an aggravation of pain. It may also have considered whether Dr Bowen suffered an increase in symptoms. However it did not express clear reasons for rejecting the claim.
The applicant further asserted that, the Tribunal excluded completely any consideration of whether or not the increase in symptoms...on the taking of his medication, itself constituted a compensable injury. (transcript page 12 line 31).
The Court accepts this submission, as no reasons are set out by the Tribunal in relation to that claim. Dr Cronin stated that it was possible that the symptoms were independent of the anti-depressants. Drs Reid and Stevenson stated that neither they, nor their colleagues, thought that the use of anti-depressants could cause reflux oesophagitis. Therefore, the Tribunal had evidence questioning whether the taking of medication could cause an increase in symptoms; and it accepted the evidence of Drs Reid and Stevenson that the anti-depressant medication could not cause or contribute to Dr Bowen’s oesophagitis.
It was also the applicants’ assertion that Dr Reid’s evidence (summarised commencing paragraph 22 of the decision) concentrates on the cause of the oesophagitis, rather than the symptoms and increase in pain.
The Court rejects that submission. As can be seen from paragraph 22 of the decision, Dr Reid’s report included consideration of the type of symptoms that could be caused by anti-depressant medication , and that “he would not consider the mechanism of the above symptoms was gastro-oesophageal reflux disorder causing oesophagitis”. He said that “he would have expected the symptoms to be temporary and to cease once the medication was stopped”.
Dr Reid’s evidence is continued in paragraph 23, where he is reported as having said that “he did not consider that anti-depressant medications would have contributed to Dr Bowen’s oesophagitis”, but rather, that “other factors were responsible for Dr Bowen’s oesophagitis”.
Comments on Dr Reid’s evidence are continued in paragraph 24, where he is reported as having given evidence that “none of the anti-depressant drugs taken by Dr Bowen would have caused oesophagitis, and that on the balance of probabilities, the drugs would not have aggravated or accelerated any underlying problems in Dr Bowen’s stomach or oesophagus”.
According to Dr Reid’s evidence, the taking of the drugs by Dr Bowen would not have aggravated any underlying problems. Therefore, his evidence addresses the question of symptoms and increases in pain, and the Tribunal accepted his evidence. That is not to say that it provided reasons in support of its conclusions.
The applicant continued by referring to the evidence of Dr Stevenson (transcript page 13 line 37), and refers to the evidence that “taking Aurorix or Zoloft, even if the person had a transient side effect, would not have had any aggravating or accelerating side effect on any pre-existing gastric condition”.
Dr Stevenson’s evidence was effectively that the condition was separate from side effects and aggravation of the condition. Dr Stevenson’s evidence was therefore not confined to the cause of the oesophagitis, and the Tribunal accepted his evidence.
The applicant then said that there was evidence before the Tribunal that when Dr Bowen took the medicine he suffered pain. The Tribunal preferred other evidence, and it was up to it to determine which evidence it found more reliable .That is a finding of fact and cannot be reviewed. Where there is conflict between medical experts as to the nature and effect of an injury, the resolution of such conflict is, in the event of an appeal, a question of fact. See Holt v Comcare [2002] FCA 1484 at paragraph 21.
The applicant continued (at transcript page 15) that properly construed, the Tribunal considered the s6A (2) claim, but not the other pathway.
The applicant then classes the evidence of Drs Reid and Stevenson as being directly related to whether the medication caused the underlying pathology of oesophagitis. On a proper analysis that is not so, and the Court rejects that submission.
The applicant alleged that the Tribunal committed an error of law in failing to take into account the ‘symptoms or the susceptibility of (sic) to symptoms of pain caused by the taking of the anti-depressant medication
The applicant then alleges inadequacy of reasons. S.43(2B) of the AAT Act requires the Tribunal to give reasons either orally or in writing for its decision. The section provides:
(2B) Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.
The Tribunal must give copies of its decision to parties
The applicant submits that there is no clear reasoning process displayed in paragraphs 40 to 46 of the Tribunal’s decision by which the member found against the applicant on the question of whether or not the aggravation of symptoms constituted an injury. The Court agrees.

Summary of the Respondent’s case

Respondent’s written summary of argument

The contentions in paragraphs 10(vii)(a), 10(vii)(b) and 10(viii) above raise issues of fact, namely whether the medication for the compensable condition of depression caused and/or aggravated

Dr Bowens oesophagitis.
The Court accepts that submission.
The issues of causation and/or aggravation were of fact and were determined by the Tribunal against the applicant in the decision paragraphs 45 and 46.
The Court rejects that submission.
Those findings of fact are not reviewable pursuant to s.44 of the AAT Act. Relevantly, in Waterford v Commonwealth of Australia (1987) 71 ALR 673 at 689 (line 11) it was stated, per Brennan J that “errors of fact do not constitute errors of law”; and also at line 18, “There is no error of law in making a wrong finding of fact”
The respondent continued, stating that the applicant has not established that the Tribunal’s findings in paragraphs 45 to 46 are ones that it was not entitled to make.
The Court accepts that submission. However the applicant submits that the Tribunal did not consider all the claims, and did not provide clear reasons.
The respondent denies that the Tribunal confined its consideration to s.6A for the following reasons:
i)The Tribunal posed the question it needed to in paragraph 3 of its reasons as follows:
“In this matter the Tribunal needs to consider whether the medication taken for Dr Bowen’s psychiatric condition
resulted in, and/or aggravated his gastric condition which led in turn to the operation and ultimately to his death following post-surgical complications.”
The Court accepts that submission, but it does not establish that the Tribunal answered that question fully or answered the alternate ways that the applicant’s claim was put. The above question relates to the question of entitlement /liability under s.6A of the Act
ii)The analysis of the evidence commencing at paragraph 6 of the decision is concerned with examination of the evidence related to causation/aggravation and involved findings as to the evidence of the various medical practitioners before the Tribunal.
The Court accepts that submission, but analysis of evidence does not establish that the decision dealt with the alternate ways the claim was put.
iii)The Tribunal preferred, as it was entitled to, the evidence of Drs Reid and Stevenson.
The Court accepts that submission. Where there is conflict between medical experts as to the nature and effect of an injury, the resolution of such conflict by Tribunals, in the event of an appeal, is a question of fact: Holt v Comcare (at paragraph 21). As to giving lesser weight to the report by Dr Wright, the Court adopts what was decided in Sean Investments v Mackellar [1981] 38 ALR 363 as follows “In the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision maker, and not this court to determine the appropriate weight to be given to matters which are required to be taken into account in exercising the statutory power”.
iv)The analysis of the evidence is contained in the decision under the sub-heading “Consideration of the Issues” (paragraphs 41 to 46)
v)The fact that the Tribunal referred to s.6A under the heading “Relevant legislation” (paragraphs 4 and 5) should not be understood as limiting the issues considered by the Tribunal, to the application of s.6A of the Comcare Act. If the Tribunal was only concerned with s.6A of the Comcare Act, it would not have posed the questions in paragraph (i) above, or have undertaken the analysis as it did.
The Court accepts that quoting from s.6A does not mean that the Tribunal limited its considerations to the claim under that section. However, its reasons do not show that it determined the other claims.
vi)The passages at paragraph 45 of the Tribunal’s reasons preferring the evidence of Drs Reid and Stevenson (who were both adamant that the anti-depressive medication could not cause or contribute to Mr Bowen’s oesophagitis), and the statement that no evidence was presented from any gastroenterologist to counter the evidence of Drs Reid and Stevenson, constitute a finding of the absence of the relationship between the anti-depressant medication and oesophagitis whether by cause or aggravation.
The conclusions in paragraphs 45 and 46 show clearly that the Tribunal considered the claim put under s.6A, and that it rejected that basis of claim.
vii)The findings in paragraph 46, in the first sentence, express the same proposition as in paragraph 45.
The Court accepts this submission, however, that does not provide reasoning to reject the alternative claims.
viii)While the Tribunal could have separated the terms “unintended” and “consequence”, the conclusion is as to the absence of the relationship between the anti-depressants and the oesophagitis (which includes Barrett’s oesophagitis), whether by causation or aggravation.
The Court accepts that submission, but that does not demonstrate how or why the other claim of the applicant was rejected.
ix)There is no justification in the Reasons when read in entirety for the suggestion that the Tribunal has not considered the issues of causation/aggravation, particularly given that it was dealing with the submissions referred to by the applicant, as stated in paragraphs 10(vii)(a) and (b), and also 10(viii) above.
The Court repeats that it is not apparent where the Tribunal dealt with the alternate bases of the applicant’s claim.
Responses of the respondent to the issues raised by the applicant in pars 13 and 14(a) to (c):
i)The Tribunal decided those issues against the applicant relying on evidence from Drs Reid and Stevenson.
The Court disagrees; there is no clear rejection of the applicant’s contentions in 13 or 14(a) to 14(c) being:
13. In this case the late Dr Bowen was unable to take medication for the compensable condition of depression because of the pain associated with the medication and the aggravation of the condition of oesophogitis caused by the taking of the medication.
14. In determining the application on the grounds set out under paragraphs 45 and 46 of her decision the learned member fell into error
(a) in declining to find that even transient increases in pain can amount to an aggravation
(c) that incapacity which resulted from that reasonable medical or surgical treatment was materially contributed to by the relevant injury.
ii)The issues were of fact, and are not reviewable before this Court pursuant to s.44 of the AAT Act.
Having made the finding immediately above, this objection is not relevant
iii)Whether Dr Bowen’s death resulted from his depression was an issue of fact for the Tribunal which it decided against the applicant. The Tribunal did not make a finding in those terms.
iv)The Tribunal was not required as a matter of law to find as contended for by the applicant in paragraphs 13, 14(a) to 14(c) of the Contentions.
The Court agrees, however, the Tribunal was required to deal with all aspects of the claims by the applicant.
v)In any event, and apart from the matters in paragraphs (i) and (ii) above, Dr Bowen’s treatment was treatment for the condition of oesophagitis and not depression.
The Court agrees, but that does not dispose of the applicant’s claim.
vi)No issue arises that transient increases in pain cannot amount to compensable aggravations during the times that those increases cause incapacity, or require treatment as a result of the aggravations as opposed to the underlying condition, but once the aggravation ceases, no compensable consequences flow: Commonwealth of Australia v Beattie (1981) 35 ALR 369.
That contention does not demonstrate that all claims by the applicant were dealt with by the Tribunal.

Responses of the respondent to the applicant’s contentions in paragraphs 14 (d) to 14(e):

vii)The Tribunal did not fail to consider the claim of the applicant apart from s.6A of the Comcare Act (See in paragraph 48)

The Court finds that Tribunal did not deal clearly, if at all, with the alternate bases for the claim.
viii)The Tribunal considered whether Dr Bowen’s death was compensable and decided that it was not.

The Court finds that the Tribunal decided that the circumstances did not meet the requirements of s.6A of the Comcare Act, but failed to deal, or deal properly, with the other basis for the claim.
ix)The contentions in paragraphs 10(xii) and 10(xiii) herein do not disclose any reviewable error.

The Court rejects that submission. The Tribunal has not provided clear reasons showing that it has dealt with an entitlement apart from under s.6A of the Comcare Act.
x)The Tribunal gave adequate reasons for the finding that anti-depressant medication did not cause or contribute to Dr Bowen’s oesophagitis.

Even if that is so, and it is not, it does not dispose of the second basis of the claim by the applicant.
xi)The requirements for the provision of adequate reasons amount to no more than that the parties are told as to the reasoning process of the Tribunal (authorities cited). The Tribunal explained its reasoning process, namely that it preferred the evidence of Drs Reid and Stevenson.
xii)The issue of adequacy of reasons is not raised in the Notice of Appeal.

The Court granted leave to amend the Notice of Appeal, and the amended Notice has as question of law (c) “The Tribunal failed to give any or adequate reasons”
xiii)In applications to review decisions of Tribunals, the Courts caution against over critical scrutiny of reasons.
xiv)Paragraph 15 of the applicants contentions relate to the review of the decision dated 8 September 2003 (V2003/1221), which is not a matter before this Court.

The Respondents oral submissions

The respondent made a number of oral submissions to the Court in relation to the issues.
The respondent contended that the inadequacy of reasons is not in the Notice of Appeal.
The applicant sought leave to amend the Notice of Appeal, which the Court granted pursuant to rule 7.01 (Transcript 31 line 21). The respondent submitted (Transcript 19 line 22) that it was able to present its case, and had dealt with the issue in submissions in anticipation.
The respondent continued; “as it is understood, the argument comes down to the proposition that the Administrative Appeals Tribunal didn’t consider the issue of increases in symptoms as part of the analysis”.
The issues of causation and aggravation were of fact and were determined by the Tribunal against the applicant in paragraphs 45 and 46. They are findings of fact and not reviewable.
The Court accepts that findings of fact are not reviewable, but that does not disentitle the applicant from being given clear reasons for the Tribunal making its decision on all aspects of the claims. As the Federal Court stated in Comcare Australia v Lees (1997) 151 ALR 647 at 656:
The imposition of an obligation upon the tribunal to provide reasons for a decision achieves a number of very important objectives. It ensures that the person whose interests may be adversely affected by a decision is told why the decision has been made…. What is required is that the reasons should be expressed in clear language so that they are capable of being understood…. The reasons must disclose the reasoning process of the tribunal…. What are the consequences if the obligation to provide reasons has not been satisfied?…. One is that the tribunal can be compelled to provide reasons…. Another possibility is that a deficiency in the reasons may be such as to lead to an inference that the Tribunal erred in law in arriving at its decision in which case the decision is liable to be set aside. The third possibility is that a failure to give adequate reasons is itself an error of law that enables the decision of the tribunal to be set aside.
The respondent continued, submitting that whether Dr Bowen’s condition had become destabilised by anti-depressant medication, and as a result he had to undergo an operation, and as a consequence he died, are all factual issues, and are not reviewable.
The Court accepts that argument.

The respondent continued, stating that the issue of whether Dr Bowen was adversely affected by the medication symptomatically was ventilated before the Tribunal, and its conclusion is a non-reviewable finding of fact.
The Court accepts that argument.
The respondent asserted also that the argument about symptomatology being increased was before the Tribunal, and it was dealt with by the word “aggravation”. The Court accepts this argument, but the last two arguments demonstrate the breadth of the contentions that were before the Tribunal, and the word “aggravation” in paragraph 46 is not sufficient to disclose a clear reasoning process by the Tribunal.
The respondent continued, stating that what was being put to the tribunal was that Dr Bowen, by virtue of the anti-depressant medication, suffered an aggravation of the oesophagitis condition i.e. it made it worse, including pain.
The respondent argued that the claims in paragraph 10(vii)(a) is the same as the claim in paragraph 10(vii)(b).
The Court accepts this argument: that is why the applicant stated in submissions that there were two paths of the claim, paragraphs 10.1 ([(10(vii)(a)] and 10.2 [10(vii)(b)] together), and paragraph 10.3 ([(10)(viii)(a)]) (which relates to s.6A(2)).
The respondent asserted that 10(viii) is the same argument as well, except it has an extra dimension, in that it relates to s.6A which provides that: If an employee receives medical treatment paid for by the Commonwealth, and as a consequence of that medical treatment suffers an injury, then the injury is taken to have arisen out of employment, and is an employment injury.
The Court accepts that formulation.
The respondent went on to assert that, for the death to be compensable, the applicant has to establish a causal nexus between the anti-depression medication and the oesophagitis; whether symptomatically or otherwise. 10(vii)(a) and (b) each raise as one of the issues in them, the question ‘‘is there a relevant nexus between the anti-depressant medication and the aggravation of the underlying condition or symptoms”.
The Court accepts that analysis.
The respondent asserted that “the applicant failed at the first hurdle because the Tribunal decided on the evidence that there was no relationship between the anti-depressant medication and the oesophagitis). Paragraph 45 and 46 of the decision are not identical, in the sense that paragraph 45 deals with the relationship between the medication and the oesophagitis, and paragraph 46 deals with the absence of the relationship that constitutes an injury for the purposes of s.6A(2). The juxtaposition of these two paragraphs in conjunction with the residue of the decision, indicate that the Tribunal was considering both the issues of contribution and aggravation and the issues under s.6A(2)”.
While the Tribunal may have considered both of those issues, it did not set out clear reasoning to show why it rejected the alternate ways in which the applicants claim was put.
The respondent asserted that Comcare v Houghton (2003)128 FCR 485, “broke s.6A up into components:
·Medical treatment paid for by the Commonwealth;
·Unintended consequential suffering of an injury;
·Resulting impairment.
The second point is similar to the argument that ‘the injury, or the anti-depressant medication, caused or contributed to the oesophagitis condition’” (Transcript page 33, lines 7 and 8). The respondent further asserted that the Tribunal picked up both arguments put by the applicant in the responses in his (sic) its reasoning culminating in paragraphs 45 and 46.
The Court is unable to accept or reject this argument as the Tribunals reasons do not deal with the issue clearly.
The respondent continued, asserting that, “the bottom line was that the Tribunal just wasn’t satisfied as to any relationship between the medication and the oesophagitis, and that was the conclusion it really formed in all paragraphs from 42 to 46” (Transcript 34 line 12)
The respondent contends that “it is also necessary to deal with the issue of whether the Tribunal limited itself to some underlying causation argument, or dealt with the symptomatology aspect as well”. The respondent submitted that it was “unreasonable to try to separate oesophagitis into something underlying and something symptomatic; and that something symptomatic not being dealt with by the Tribunal. The Tribunal is dealing with all of it and it says ‘I am not satisfied that there is any relationship between medication and this condition’” (Transcript 36 line 40).
The respondent submitted also that:
i)The Tribunal clearly indicated that it has had regard to the symptomatic components of this injury, as well as the nature of the condition. (Transcript 37 line 32).
ii)In relation to the use of the language by the Tribunal the respondent submits:
a)   The Tribunal was talking about “gastric” as incorporating all these other things. The respondent asserted that “the language is sometimes a little bit loose”, but the respondent asserts that the Tribunal was not talking about hiatus hernia pathology (Transcript 38 line 42);
b)     Each of the doctors spoke their own range of medical language in terms of symptoms, which was put together by the Tribunal to effectively state, “I don’t believe there’s a relationship.” (Transcript 39 line 18);
c)   The language was very much “intermixed; that is, it’s got symptoms predominating, if anything, over the underlying condition, if there is such a thing in this case other than the process” (Transcript 41 line7).
These submissions support the Court’s conclusion that the Tribunal did not deal adequately and clearly with all bases of claims put forward by the applicant.
Although it is possible with great effort to construe the Tribunal’s decision as having dealt with the alternative arguments put to it by the applicant, it is more open to read the decision as not having dealt with all arguments put by the applicant. That is unsatisfactory: It means that the Tribunal has not expressed clearly its’ reasons for rejecting the arguments put by the applicant.
Having reached that conclusion, it is unnecessary to go to the submissions for the applicant in reply.
For the above reasons, the Court makes the orders and directions set out above.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate: Dian Neligan

Date: 22 December 2006