Carson v Comcare
[2003] FCA 1550
•22 DECEMBER 2003
FEDERAL COURT OF AUSTRALIA
Carson v Comcare [2003] FCA 1550
WORKERS’ COMPENSATION – appeal from decision of Administrative Appeals Tribunal (AAT) upholding decision of Independent Review Officer refusing application for compensation in respect of permanent impairment – where appellant had made claim in respect of depression – where AAT found pre-existing impairment – where AAT had regard to materials not considered by primary decision marker - whether AAT committed error of law – appeal dismissed.
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 24, 27, 28, 60, 62 and 64
Administrative Appeals Tribunal Act 1975 (Cth) ss 40, 43 and 44Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 cited
Fletcher & Ors v Federal Commissioner of Taxation (1988) 84 ALR 295 referred to
Commonwealth of Australia v Ford (1986) 65 ALR 323 referred to
Re Flynn and Department of Aviation (1987) 13 ALR 279 referred to
Re Costello and Secretary, Department of Transport (1979) 2 ALD 934 referred to
Comcare v Fiedler (2001) 115 FCR 328 referred to
Servos v Repatriation Commission (1995) 56 FCR 377 followed
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 citedPETER JOHN CARSON v COMCARE
No S 396 of 2003
LANDER J
ADELAIDE
22 DECEMBER 2003
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S 396 OF 2003
BETWEEN:
PETER JOHN CARSON
APPELLANTAND:
COMCARE
RESPONDENTJUDGE:
LANDER J
DATE OF ORDER:
22 DECEMBER 2003
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1. The appeal is dismissed.
2. The appellant is to pay the respondent’s costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S 396 OF 2003
BETWEEN:
PETER JOHN CARSON
APPELLANTAND:
COMCARE
RESPONDENT
JUDGE:
LANDER J
DATE:
22 DECEMBER 2003
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
This is an appeal from a decision of the Administrative Appeals Tribunal (‘AAT’) affirming the decision of an Independent Review Officer to disallow a claim made by the appellant under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’). The appellant was unrepresented on this appeal.
The appellant was formerly employed by the Defence, Science and Technology Organisation (DSTO) as a Research Scientist. He made a claim under the Act for stress and depression which he claimed had arisen out of his employment with DSTO and had resulted in permanent impairment and non-economic loss. The stressors in the workplace that are said to have caused the injuries complained of relate to the appellant’s relationships with other employees at DSTO. The appellant claims to have suffered victimisation and harassment at the hands of his superiors in the workplace.
In February 1995 the appellant made a claim for injuries resulting in permanent impairment under the Act. Comcare disallowed the claim on the basis that it was not satisfied that the appellant had in fact been subjected to harassment. That decision was affirmed by an Independent Review Officer pursuant to s 62 of the Act. The appellant applied to the AAT for a review of that decision (the first AAT decision). On 3 August 1998 the then President of the AAT, von Doussa J, allowed the review and set aside the decision of the Independent Review Officer. He found:
‘Comcare is liable to pay compensation in accordance with the Safety, Rehabilitation and Compensation Act 1988 in respect of an injury suffered by Dr Carson, namely depression or an aggravation of depression, on 24 January 1995 which caused incapacity for work.’
As a result of that finding, Comcare was compelled to determine the degree of the appellant’s permanent impairment and to pay compensation in accordance with the Act.
Compensation is payable under s 24 of the Act where an injury results in permanent impairment and s 27 of the Act provides that additional compensation is payable in respect of non-economic loss where an injury results in a permanent impairment and compensation is payable under s 24 of the Act.
Section 24 of the Act relevantly provides:
‘24 Compensation for injuries resulting in permanent impairment
(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury
…
(5)Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6)The degree of permanent impairment shall be expressed as a percentage.’
The section also provides that if Comcare determines that the degree of permanent impairment is less than 10% an amount of compensation is not payable to the employee under the section. It provides in subs (7) that:
‘Subject to section 25, if:
(a)the employee has a permanent impairment other than a hearing loss; and
(b)Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.’
Section 27 of the Act provides that where an injury to an employee results in permanent impairment and compensation is payable under s 24 of the Act, Comcare is liable to pay additional compensation in respect of non-economic loss in accordance with that section. Thus if Comcare determines under s 24(7) of the Act that the degree of permanent impairment is less than 10% compensation is not payable under ss 24 or 27.
The ‘approved Guide’ (the Guide) referred to in s 24(5) is also the method by which an amount of compensation is assessed under s 27(2) of the Act. The preparation of the Guide is provided for in s28 of the Act. Section 28(1) of the Act provides:
‘(1)Comcare may, from time to time, prepare a written document, to be called “Guide to the Assessment of the Degree of Permanent Impairment”, setting out:
(a)criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury shall be determined;
(b)criteria by reference to which the degree of non-economic loss suffered by an employee as a result of an injury or impairment shall be determined; and
(c)methods by which the degree of permanent impairment and the degree of non-economic loss, as determined under those criteria, shall be expressed as a percentage.’
The Guide contains tables which group types of impairment according to “body system” and then expresses degrees of impairment as a percentage of the “functional capacity of a normal healthy person”. Under the Guide, assessments of impairment can only be made by reference to the specific percentage values mentioned in the various tables. Table 5.1 which deals with psychiatric conditions provides for percentage increments of 5 per cent up to impairment of 30 per cent, and for 10 per cent increments thereafter.
On 11 September 2000 a delegate of Comcare assessed the degree of the appellant’s permanent impairment at 10 per cent under the Guide and awarded damages under ss 24 and 27 of the Act for both permanent impairment and non-economic loss totalling $16,016.96.
By facsimile dated 5 October 2000 to the ‘Review Manager, Comcare’, the appellant’s solicitors sought a reconsideration of the assessment of the appellant’s entitlements. That request was treated as a formal request pursuant to s 62(2) of the Act and as a request for reconsideration of the whole of the determination of 11 September 2000.
On 21 November 2000, following a reconsideration of the claim, an Independent Review Officer varied the decision of 11 September and determined:
‘On the basis of evidence before me I hereby determine that the employee is not entitled to compensation under Section 24 of the Act, as the amount of whole person impairment as a result of the employee’s employment is assessed as being less than 10%.’
The applicant applied to a second AAT for a review of that decision. On 6 February 2003 the second AAT determined that the appellant had a pre-existing permanent impairment of 5 per cent prior to suffering his injury in the workplace (‘the second AAT decision’). Whilst his total permanent impairment was accepted as being 10 per cent, only the balance of 5 per cent was found to have resulted from injuries suffered in the workplace. For different reasons than those given by the Independent Review Officer, the impairment was considered not to be compensable under the Act. It is against the second AAT decision that the appellant now appeals.
The grounds of appeal, as identified in the notice of appeal, are:
‘1.The appeal before the AAT sought a reconsideration of the quanta allocated by Comcare given that the applicant’s (PJC) whole person entitlement had reached the 10 per cent threshold based on the opinion of the medical referee, Dr A Davis. The appeal was based on events that had occurred, i.e. Comcare decision was based on the known diagnosis of Davis. It was impossible for the appeal to be based on future, unknown events, in particular, altered, different or new diagnoses. The Tribunal did not review the Comcare decision but made its decision on its review of new, different medical presentations.
2.Comcare’s witness, Professor R D Goldney perjured himself. Goldney also lied on another matter in one of his written reports, one quoted by the Senior Member. Dr Davis acknowledged that he gained support for his new evidence from Prof Goldney’s opinions.
3.The Senior Member disallowed our supporting evidence. That evidence had previously been accepted in a previous AAT hearing before Justice von Doussa.
4.The maths (e.g. par 136) is wrong.
5.The Senior Member did not apply the law referred to in paragraph 102 in his decision.
6.Various other errors of fact by the Senior Member.’
In a further document filed by the appellant, particulars of ground six are given in the following terms:
‘I refer to the Decisions and Reasons for Decision by Senior Member Kiosoglous MBE (S2000/471).
a. Paragraph K19 includes the statement,
“However, the decision relied heavily on a new report of Dr Davis.”
The decision was made on 21 November 2000: that new report was not written until 8 June 2001. (These dates are noted in K64.) Ground 6 ties in with my ground 1.
b.Paragraph K19 also includes the statement,
“(The respondent certainly had the power to reconsider its decision, whether at the motion of the applicant or its own motion, pursuant to s 62 of the Act.)”
This is contrary to the information contained in the respondent’s decision (11 September 2000, T38), although the employer does have the right.
c.K144 includes
“Dr Le Page stated that none of the applicant’s impairment was work-caused.”’
Comcare assessed the appellant’s permanent impairment at 10 per cent. The Independent Review Officer accepted that total impairment was 10 per cent, but assessed the appellant’s permanent impairment ‘as a result of the employee’s employment’ as less than 10 per cent. The second AAT assessed his permanent impairment at 10 per cent but attributed only 5 per cent of that 10 per cent to injuries suffered in the workplace. In this appeal the appellant seeks to have Comcare’s determination restored. The second AAT’s decision is of course the decision under appeal.
It is necessary to understand how the Guide deals with the aggravation of pre-existing ailments. The Guide provides as follows:
‘Aggravation
An assessment should not be made unless the effects of aggravation are considered permanent. If the employee’s impairment is entirely attributable to a pre-existing or underlying condition, or to the natural progression of such a condition the assessment for permanent impairment should be nil.
Where it is possible to isolate the compensable effects of any injury upon a pre-existing or underlying condition the assessment of the degree of permanent impairment should reflect only the impairment due to those compensable effects.’
Both the Independent Review Officer and the second AAT considered, on the basis of evidence before them, that the compensable effects of the work-related injury could be identified and isolated. On appeal, the appellant did not seek to argue that the compensable effects could not be isolated and that his injury should be treated as an aggravation that was wholly compensable. Rather, the appellant urged the Court to find that there was no pre-existing disorder/impairment, and therefore the whole 10 per cent impairment was compensable.
Before dealing with the grounds of appeal, it is necessary to first set out some of the background facts. In doing so it would be convenient to deal with the third ground of appeal in the notice of appeal, which relates to the second AAT Member’s treatment of evidence of background facts.
The third ground of appeal in the notice of appeal complains that ‘the Senior Member disallowed [the appellant’s] supporting evidence. That evidence had previously been accepted in a previous AAT hearing before Justice von Doussa’.
At the second AAT, the parties agreed that the Tribunal was bound by the findings of fact in the first AAT decision.
The consent of the parties to agree to the findings of fact made by the first AAT renders it unnecessary to comment on whether or not the second AAT was bound in law by the factual findings of the first AAT. It is sufficient to note the following statement of Pincus J in Bogaards v McMahon (1988) 80 ALR 342 at 350:
‘It would seem easy enough to conclude that, to the extent that the tribunal deals directly with a decision under review (for example, by substituting another), its functions are exhausted. It would be absurd to suppose that the legislature intended that the tribunal, having on Monday set aside a decision under review, should have jurisdiction on Tuesday (on precisely the same facts) to affirm it, perhaps acting by a different member.’
The second AAT relied on the factual findings in the first AAT decision which were based upon an agreed statement of facts.
The appellant complained that the second AAT did not allow him to develop a background history of events relevant to the appellant’s claim and his relationship with his employer in his evidence-in-chief. He also complained that the second AAT accepted findings of fact in respect of this history of events without any evidence to support those findings. One aspect of the appellant’s grievance appeared to be that the second AAT was not provided with a copy of the statement of agreed facts which was before the first AAT.
I have read the appellant’s evidence at the second AAT. The appellant’s examination in chief started as a detailed revision of events leading up to his original claim. Counsel for the respondent, Ms Bean, objected on the basis that there had already been a detailed enquiry into liability at the first AAT and that that matter had been determined. The examination continued and Ms Bean again objected on the basis that the evidence led had been dealt with and findings made by von Doussa J. The appellant’s counsel was required to shorten the evidence of the history of events.
The examination in chief recommenced and the respondent’s counsel foreshadowed an adjournment application so that the evidence being given by the appellant could be properly answered. The appellant’s counsel, at the second AAT, was told that there was no need to revisit those matters. Thereafter the appellant’s Counsel adopted a shorter course than might otherwise have been adopted but in the circumstances this was entirely appropriate.
This course was adopted in light of the detailed findings of the history by von Doussa J. Those findings were drawn from the statement of agreed facts.
There was no error in the course adopted by the second AAT. The appellant’s counsel at the second AAT specifically indicated that he took no issue with the findings of von Doussa J. No further findings of fact were made by the second AAT except upon the evidence. The second AAT did not need to refer to the agreed statement of facts unless it had to make findings not made by or inconsistent with the findings made by von Doussa J. That did not happen. The findings made by von Doussa J were repeated in the second AAT decision and relied upon in that decision as a summary of the background facts.
At the hearing of the appeal, the appellant provided the Court with a document prepared by the appellant entitled ‘Background for Statement of Facts’. This was not the statement of agreed facts relied upon by von Doussa J. The document is somewhat more comprehensive than the findings in the first AAT decision. However, counsel for the respondent raised no objection to my reading it which I have done.
The background facts as found by von Doussa J (at [4]) were as follows:
‘(1)The applicant was born on 4 February 1947, and joined the Defence Scientific Research Centre in 1978 initially as a Clerk but transferred to the position of a Research Scientist in which field he has worked since. (He was awarded a PhD by the University of Adelaide in 1974).
(2)In July 1981 there was an advertisement for the position of Senior Research Scientist and the applicant was unsuccessful in obtaining the position and appealed against the promotion of the successful party Dr Rye.
(3)In June 1982 the applicant was assessed and found not to be eligible for classification as a Senior Research Scientist and as such his appeal was unsuccessful, on the basis that he was not qualified for the promotion he sought.
(4)In June 1982, the applicant suffered a severe motor vehicle accident with some head injury including amnesia and a blackout as well as serious physical injuries including the loss of his spleen, fracture of left forearm and 7 ribs on the left side. He spent 18 days in the Royal Adelaide Hospital. (In the latter half of 1983 the applicant consulted Dr Tottman, a psychiatrist in relation to symptoms of depression on a number of occasions).
(5)After returning to work, in mid 1984, after several months writing technical publications the Applicant refused to continue work on a particular project and was counselled and taken out of the group that he was then working. He experienced difficulties with his associates.
(6)As a result of this motor vehicle accident attempts were made for the Applicant to be retired on account of invalidity, and he was examined by Robert J Hall, Neurologist, Robert D Goldney, Psychiatrist, Mr M W Reid, Clinical Neuropsychologist and others.
(7)In the report of 10 May 1985 by Robert D Goldney, Psychiatrist, Dr Goldney noted the Applicant’s “continual blaming of others for interpersonal difficulties which he may have” and indicated his belief that “at the very least he has marked paranoid personality and may, at times be out of touch with the reality of the situation”. He recommended a very strong case could be made for immediate retirement on incapacity.
(Dr Goldney considered Dr Carson was appreciably disabled at that time, and attributed his disability to three contributing factors:
“Firstly, he has a rather sensitive, guarded personality, in fact some might say that he adopted a paranoid stance towards the world ...
The second contributing factor is, of course, the motor vehicle accident ...
A third issue which is important is a significant component of depression ...”)
(8)Dr Goldney indicated that if suitable work were available then it could be better for the Applicant psychologically to remain employed. He did indicate his belief that there may well be “continuing difficulties”.
(In a report dated 12 June 1985, Dr M W Reid, a senior clinical neuropsychologist, reported as follows:
“Considering his initial performance and his improved performance now, I believe that this improvement has been due to an organic improvement and that there is now no indication of organic brain damage affecting intellect. On the other hand he appeared to have greater difficulty in coping psychologically with the stresses at work. This may, at least partially, be secondary to the car accident in that his injuries would have reduced his ability to cope with his work conditions he did not enjoy even before the accident. His multiple anxiety related symptoms and his pre-occupation with thoughts about work, raises the possibility that he has developed a mild paranoid reaction as part of his attempts to cope.”
(In a report dated 22 August 1985 Dr Robert J Hall, a neurologist, reported that:
“My impression is that his symptoms are almost certainly due to chronic tension and depression and more than likely his feelings of dysequilibrium and dizziness have a psychogenic basis.)
(9)A claim for compensation dated 11 July 1985 for work related stress which became apparent in March 1985 but was also present before, was made by the Applicant and a Determination of 22 August 1986 determined that there was liability for aggravation of depressive illness. By a further Determination dated 20 October 1986 liability was backdated till 20 March 1985.
(10)Further medical examinations were conducted in 1986 and Dr Goldney in a report dated 5 February 1986 indicated “...I am firmly of the view that his psychological difficulties are contributing to the work problems...” and that he “still has a rather sensitive and indeed paranoid personality by which I mean he is particularly sensitive to any interpersonal reactions...”.
(In a report dated 30 April 1986 Dr Goldney confirmed his earlier opinion that Dr Carson suffered three conditions. The paranoid personality disorder and the motor accident were unrelated to his employment. However, Dr Goldney said:
“I believe that on the balance of probabilities, his feelings of depression were certainly attributable to his employment, and the contributing factors as perceived by him were his difficulty in relationships with his superior officers. As noted above, these difficulties are very much also related to his lifelong paranoid personality traits and there is obviously an intermingling of the paranoid personality and depressive symptoms, but it cannot be denied that his perception of interpersonal relations would certainly have contributed to his depressive condition.”)
(11)The Applicant was absent from work for a period of approximately 6 months and on 4 March 1986, returned to work because the interpersonality conflict had been reduced by a change of work area.
(12)In 1992/1993, the Performance Management Scheme at DSTO was commenced. The applicant was rated on a scale of 1 to 5 and was rated a 3.
(The Performance Management Scheme was introduced as part of the RS Structural Efficiency Principle pay case in late 1992. The scale of ratings was:
1.Unsatisfactory (leading immediately to formal inefficiency procedures).
2.Marginal (leading to a remedial period of 3 to 6 months, at the end of which the officer is rated at least Fully Effective, otherwise immediate inefficiency procedures).
3.Fully effective.
4.Superior.
5.Outstanding.
The scheme provided for two levels of dispute settlement, the first a management review conducted by a senior line manager, and the second, if the officer were still aggrieved, a review by an independent panel of two senior officers plus a union representative if requested)
(13)In 1993 Mr Fogg commenced as supervisor for the Applicant and there were clashes between Mr Fogg and the Applicant and the Applicant maintains that as a result of this criticism of his approach to a particular task he began to be victimised.
(14)In March 1993 a new supervisor for the Performance Management Scheme was appointed, a Mr Hood and there was some difficulty in settling the Applicant’s Performance Management Scheme agreement.
(15)In April 1993, a formal re-moderation of the Applicant’s rating in the Performance Management Scheme was made reducing him to a 2. This led to the implementation of an inefficiency process. The Applicant was found to be inefficient by that process of which Mr Fogg was the sole supervisor and assessor.
(When Dr Carson was advised of the new rating of 2, he had the assessment referred to the first level of dispute resolution. The outcome of the review was adverse to him, and he sought a second level review which was also decided against him.)
(16)A report by Psychologist Enza Belperio identifies the Applicant’s belief in respect of victimisation by Mr Fogg from 1993 and indicates his belief that the inefficiency process would not be a fair one.
(17)In February 1994, the Applicant submitted a research paper for vetting, part of the publication process and this was stopped by Mr Fogg in March 1994 whilst the Applicant was on leave.
(18)By a claim dated 24 March 1994, the Applicant claimed for eye irritation. Liability was not initially determined in favour of the Applicant and he took an application in the AAT to review the decision denying liability. Liability was determined by Comcare before the matter was progressed to hearing.
(19)In March 1994, Mr Fogg became the Head of the Simulation Assessment Group at DSTO.
(20)In May 1994, the Applicant took a Regulation 83 Appeal against Mr Fogg stopping the publication of the research paper and viewed the outcome as unsatisfactory and then lodged an application with the MPRA [Merits Protection Review Agency] whose findings agreed with the internal departmental decision.
(21)The Applicant indicated that he was not happy with the method or process followed or the capability of the MPRA Officer. He indicated “there was confession from Fogg that he erred in his claims of Thompson’s opinion”.
(22)On 4 July 1994, the report resulting from the internal investigation into the Applicant’s grievances was handed down. There was no finding of victimisation by Mr Fogg. A transfer of the Applicant to another area was recommended.
(Notwithstanding the outcome of the investigation, Dr Carson continued to feel that the actions of Mr Fogg were completely unjustified and constituted an act of victimisation. Publication of a paper was important to him. He had been told that he had insufficient publications. Further publications were necessary to establish his efficiency. He considered Mr Fogg had deliberately prevented him achieving a publication to support a finding that he was inefficient. Dr Carson gave evidence before the Tribunal that he felt very angry, perplexed, worried and helpless by the rejection of his grievance.)
(23)As a consequence of the poor rating in the Performance Management Scheme, an inefficiency trial was put in place for the applicant which took place over 5 months. Mr Fogg was the supervisor as well as the assessor. At the end of the process the Applicant was found to be inefficient.
(Mr Fogg gave evidence before the Tribunal that the task assigned to Dr Carson to establish efficiency was not fully or properly performed. This led on to the implementation of formal inefficiency procedures referred to in paras (27) and (28) below.)
(24)The MPRA Report on the Applicant’s grievance was handed down on 21 September 1994. It found that there was no victimisation by Mr Fogg but that there was a “difference in academic opinion”.
(This report was the result of the application referred to in para (20) above and followed a review of the outcome of the internal investigation referred to in paras (20) and (22) above.)
(25)On 4 October 1994, the formal report by Mr Fogg on the inefficiency trial was handed down.
(26)On 14 October 1994, the report was handed down in respect of the investigation into the Applicant’s grievance regarding his rating in the 1993/1994 Performance Management Scheme.
(27)On 12 December 1994, the rating of 1 for the Performance Management Scheme 1993/1994 Year was upheld by the Chief Scientist and this was notified to the Applicant on 20 December 1994.
(28)By letter dated 12 January 1995, the Applicant was placed under a 3-months work performance assessment and the assessing officer was given as Dr V Sobolewski.
(The assessment was to be carried out over the period 12 January 1995 to 11 April 1995. Dr Sobolewski came from a section both geographically and functionally removed from that in which Dr Carson worked, and there is no reason to doubt his evidence before the Tribunal that he approached the task assigned to him in a completely fair-minded and dispassionate way. However, Dr Carson was highly suspicious of the process and felt threatened by it as he perceived Mr Fogg to have a critical role in the implementation of the procedure. He held this view as the “Method of and Procedures for the Assessment of Work Performance” laid down by Dr Sobolewski specified Mr Fogg as the “assessee’s supervisor; originator of work assignment for assessing; and assignment (technical) assessor/referee”. The assignment which the procedure required Dr Carson to perform satisfactorily was set by Mr Fogg, and the written report which Dr Carson was to prepare was to be delivered to Mr Fogg on or before 11 April 1995. Moreover, the report was to be assessed in the first instance by Mr Fogg, and the procedure provided for Dr Sobolewski, as the assessing officer, to obtain documents, records and comments from Mr Fogg.)’
von Doussa J found that the appellant suffered an injury in the nature of depression or an aggravation of pre-existing depression in January 1995, which injury was compensable under the Act. In doing so, he had regard to evidence from two psychiatrists, Dr Le Page and Professor Goldney. He said at [23]:
‘Dr Le Page attributes the condition he diagnosed in February 1995 to the work environment and in particular to the ongoing conflict which Dr Carson perceived he had with Mr Fogg, and to his perception that the inefficiency procedure was designed to bring about his dismissal. Professor Goldney’s evidence does not disagree that Dr Carson’s depression was related to his perception of his work situation, but he adds the further consideration that the perceptions were due to his paranoid personality disorder rather than to the reality of the workplace. Even on that view, the events at work, and in particular the inefficiency procedures contributed in a material degree to the ailment.’
The Guide divides non-economic loss into various sub-categories of loss and a claimant is given a ranking of zero to five in respect of each sub-category, five representing a higher level of loss.
In respect of non-economic loss, the applicant was assessed as having a ranking of one for pain, a ranking of two for suffering, and a nil ranking for the effect of the impairment on his mobility, social relationships, recreation and leisure, other category and expectation of life.
Comcare assessed the degree of permanent impairment as 10 per cent and assessed the level of compensation on that basis. In doing so it relied upon the report of a psychiatrist, Dr Tony Davis, dated 4 August 2000.
Before preparing his report, Dr Davis was provided with two medical reports from Dr Le Page dated 7 April 1995, and 23 April 1998, five medical reports from Dr Goldney dated 10 May 1985, 4 February 1986, 4 February 1995, 24 July 1995, 14 February 1997, and various other medical reports. Dr Davis made the following comments in his report:
‘3.I agree with Professor Goldney that Dr Carson has an abnormal personality structure that significantly compromises his capacity for work. He has had longstanding difficulties in the work place, dating back to 1979 (according to attached reports). He attributes all blame to others and is critical of others’ management and competence. Unless all supervisory reports are ill informed it is far more probable that the difficulties lie within Dr Carson than within many senior staff within the organisation.
4.I consider that his psychological condition is a consequence of an interaction of his personality style and difficulties encountered in the work place. It is difficult to quantify the relative contributions of these factors although, on balance, I think that personality and constitutional factors are more relevant than any external factors.’
In dealing with the question of permanent impairment of function he wrote:
‘1.The accepted condition of 24/1/95 has resulted in significant psychological impairment. Dr Carson has chronic anxiety symptoms and a variety of somatic complaints that are related to this. This includes bruxism, with recent dental problems.
2.I consider that this impairment is permanent, in that symptoms have persisted for over 5 years with little amelioration. There is less depression evident, but anxiety, frustration and anger remain a feature of his clinical condition.
3.The over-all percentage of whole person impairment resulting from his condition is between 10 and 15%, according to the Guide to the Assessment of the Degree of Permanent Impairment.
4.I consider that the work-related factor contributes a proportion of this disorder, but I am unable to provide a quantitative measure of this.’
5.As indicated above, I consider that personality and constitutional factors are the most important contributing factors to this disorder.’
Comcare concluded that ‘the impairment falls under the 10% category’. Comcare did not attempt to determine the proportion of the impairment attributable to work related factors.
In seeking a reconsideration of the assessment made by Comcare on 11 September 2000, the appellant did not expect that the Independent Review Officer might make different findings as to the percentage of the appellant’s total work-related impairment. He thought, by seeking a reconsideration, Comcare might assess the compensation payable at a higher amount, presumably by giving the applicant higher rankings in respect of the non-economic loss categories.
However, that was not an assumption he was entitled to make. His request for reconsideration was that ‘Dr Carson seeks a reconsideration of the assessment of his entitlements pursuant to s 24 and 27’. The relevant ‘assessment’ under s 24 involved a determination by Comcare of the degree of permanent impairment. In any event, as noted by the second AAT at [19], ‘[t]he respondent certainly had the power to reconsider its decision, whether at the motion of the applicant or of its own motion pursuant to s 62 of the Act’.
The Independent Review Officer reconsidering the determination of 11 September 2000 had regard to other medical evidence apart from that relied upon by Comcare including reports from psychiatrists and treating medical practitioners from as early as May 1985.
The Independent Review Officer found that:
‘In Dr Davis’s opinion it is these constitutional and personality factors that are far more relevant than any external factors related to employment. While the employee has an impairment level of 10% Whole Person, in relation to his psychological state, only a minor percentage of that impairment is attributable to contributions from his employment. As such I find that the level of Whole Person impairment, as a result of his employment’s contribution is less than 10% and therefore there is no benefit payable as the level is less than the legislative minimum for a payment under section 24. As there is no entitlement payable under section 24, there is no entitlement to any payment under section 27.’
Even further medical evidence was presented to the second AAT relating to the degree of permanent impairment and the proportion of such impairment resulting from the compensable injury. The second AAT had three further reports from De Le Page dated 31 January 2000, 12 August 2002 and 26 August 2002 which had not been available to Dr Davis when he prepared his report of 4 August 2000. One further report dated 29 August 2002 prepared by Professor Goldney and two further reports from Dr Davis dated 8 June 2001 and 27 November 2001 were before the second AAT. The effect of that further evidence can be summarised as follows:
·Dr Le Page was of the opinion that Dr Carson had never suffered from a paranoid personality disorder (‘PPD’), but diagnosed his condition (an ongoing diagnosis from 1995) as a “reactive anxiety depressive state, superimposed on a sensitive personality’. His opinion, which supported the Comcare decision of 11 September 2000, was that the over-all 10 per cent impairment resulted entirely from the compensable injury.
·Professor Goldney diagnosed Dr Carson as having a paranoid personality disorder and opined that any depression was consequent upon the PPD. In his opinion, no proportion of the impairment could be said to be caused by the workplace.
·Dr Davis ‘stated that approximately one third of the applicant’s impairment could be said to be work-caused’.
The second AAT found that the applicant had paranoid personality traits, but not a paranoid personality disorder, although the Tribunal regarded paranoid personality traits as “existing across a spectrum, and beyond a certain point may be termed a disorder’. The Tribunal member found that the applicant’s perception of the work place was affected by his personality traits to a significant degree.
The second AAT accepted that Dr Carson had a permanent impairment of 10 per cent, and that Dr Carson had some permanent impairment related to his workplace. The Tribunal regarded it as possible to ‘isolate the compensable effects’ of the work-related injury on a pre-existing condition in this case. The tribunal was ultimately ‘satisfied that the applicant had a permanent impairment of 5 per cent prior to suffering his compensable injury at the DSTO. The Tribunal is thus bound to find that the permanent impairment suffered by the applicant is only 5%’.
The appellant’s first ground of appeal complained that the AAT had regard to the medical reports from Dr Le Page, Professor Goldney and Dr Davis which were prepared and submitted after the reviewable decision of 21 November 2000.
At the hearing of the appeal, neither party addressed this ground. However, the ground was addressed by both parties in written submissions delivered after the hearing pursuant to leave granted by me.
The appellant argued that whilst the AAT could receive ‘extra evidence that existed at the time of the decision, the decision maker was not in a position to consider evidence that did not exist at that time, and nor can the Tribunal’.
Section 64 of the Act provides for applications to the AAT for review of reviewable decisions made under the Act. Section 66 of the Act empowers the Tribunal to take further evidence but subject to the restrictions in that section. Section 40 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) empowers the AAT to ‘take evidence on oath or affirmation’ for ‘the purpose of reviewing a decision’. Section 40 of the AAT Act gives the AAT quite extensive powers to obtain evidence and to compel evidence to be obtained or taken. By operation of s43 of the AAT Act, the Tribunal has the same powers and discretions as the person who made the administrative decision under review.
There is no dispute that the Tribunal member was entitled to hear oral evidence from each of the medical practitioners who prepared reports after 21 November 2000. In fact, this occurred and each of the practitioners was cross-examined. The appellant’s submission was, however, that whilst the Tribunal member was entitled to receive additional evidence, it could only receive such evidence as existed at the time the reviewable decision was made.
I reject that submission. In Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, Bowen CJ and Deane J said at 589:
‘The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.’
That case has been followed in a number of decisions in this Court and in the AAT itself: e.g. Fletcher & Ors v Federal Commissioner of Taxation (1988) 84 ALR 295; Commonwealth of Australia v Ford (1986) 65 ALR 323; Re Flynn and Department of Aviation (1987) 13 ALD 279; Re Costello and Secretary, Department of Transport (1979) 2 ALD 934.
Drake was recently followed by a Full Court of this Court in Comcare v Fiedler (2001) 115 FCR 328. In that decision, Drake was cited at 336 [34] as authority for the proposition that ‘the Tribunal’s function is administrative, not judicial, that is, it must review the merits of the claimant’s claim, not just the determination of the primary decision-maker.’ That case involved a claim for permanent impairment under the Act. The Full Court noted at 337 [35] that s66 of the Act places a procedural restriction ‘on the material which the Tribunal can consider, that is, on the scope of the hearing de novo which the Tribunal must undertake.’ The section does not impact upon the nature of the hearing and the powers of the AAT to receive further evidence as contemplated in Drake. That is, evidence not before the primary decision maker, and generated after the primary decision, may still be received at the AAT hearing. Section 66 merely imposes a notice requirement which applies to all evidence sought to be adduced, regardless of whether that evidence can be regarded as ‘new’. This restriction is also subject to the proviso that the Court may grant parties leave to adduce evidence, not properly notified to the Tribunal, in ‘special circumstances’.
The appeal to the second AAT raised questions relating to any pre-existing conditions from which the appellant suffered. The various experts’ attention was directed to those issues and they expressed their opinions. The extra material before the second AAT was brought about by the experts speaking to earlier reports and their later reports.
In my opinion the course adopted by the second AAT was appropriate because it was conducting a further enquiry on the merits. It was not constrained by the evidence before the Independent Review Officer. Its function was to decide for itself the questions posed. Thus it was not limited to the evidence before the Independent Review Officer and there is no reason, in logic, if it was entitled to take evidence for itself (s 40 of the AAT Act) why it could not receive opinion evidence generated after the decision under review.
In any event, the appellant’s principal complaint in regard to the receipt of additional evidence was the receipt by the second AAT of Dr Davis’ supplementary report of 27 November 2001 in which Dr Davis attributed “two-thirds of the impairment to constitutional and personality factors, and one third to work-related factors”. Dr Carson complained that this “diagnosis” was a change in opinion. However, Dr Davis’ report of 27 November must properly be regarded as a supplementary opinion, apportioning the 10% impairment to its various causes. In cross-examination on the report of 27 November Dr Davis said:
You then reduced the work contribution to a third? -- Yes.
Is that correct? -- Yes
Was that – I mean, did that really represent a change of mind on your part? -- No, no. I thought throughout the impairment which was persistent was still substantially linked to personality and constitutional factors. As I say, try to quantify it and put numbers around it is quite a task but it still reflected my overall impression formed at the first meeting.
Were you in fact requested to consider an assessment of less than 10 per cent? -- No. There was no discussion about that. It was really how I would proportion (sic) the 10 per cent.
Did you feel any compulsion at all to reduce the 10 per cent that you had previously assessed by two thirds? -- No, I think there’s a misunderstanding. My 10 per cent was a comment on the level of impairment but at no point did I imply that was solely linked to the work-related factors and I didn’t feel I was under any compulsion. I felt my final statement was a fair reflection of my first assessment.It is not clear why Dr Davis would be better placed to make an apportionment in November 2001 than he was closer to the date of his examination of the appellant. However, the report does not in substance constitute a new opinion. Although the report of 4 August 2000 is not entirely clear, it is implicit in that report that a proportion of the percentage of whole person impairment was not caused by the work-related compensable injury. That follows from his statement:
‘I consider that the work related factor contribute a proportion of this disorder, but I am unable to provide a quantitative measure of this.’
There can be no doubt that Dr Davis was of the opinion that the work related factor contributed to the appellant’s disorder not that it was the sole contributory to the disorder.
In any event, for the reasons above, the second AAT did not commit an error of law in having regard to medical reports prepared after the date of the reviewable decision. The first ground of appeal must fail.
The second ground of appeal alleges perjury against one of the expert witnesses, Professor Goldney. The allegation was founded upon the following evidence given by Professor Goldney during cross-examination:
Was there a time when you arranged some tests for Dr Carson with a colleague, a Mr McDonald, psychometric testing? Sorry – it might not have been MacDonald, but did you at some time arrange for a colleague to carry out psychometric testing on Dr Carson? -- I don’t think so. I would have put it in my reports and I’ve been through them pretty thoroughly and it’s not in my reports is it? And ---
Not that I’m aware of. Now, Mark Reid carried out psychiatric testing? --- Yes.
Psychometric testing. Can you remember any other psychometric testing being carried out? --- No, I can’t. Yes, yes, yes – hold on. Dr Carson told me that someone had done them and they disagreed with me.
In the next door office. Did you say send him for testing in an office next to yours? --- No, no.At North Adelaide? --- No.
A report of Dr Goldney (as he then was) dated 24 July 1995 refers to an MRI scan performed on 30 June 1995 which was reported as being normal, and to neuropsychological testing undertaken by a Dr Wood in July 1995. It is stated in Dr Goldney’s report that Dr Wood had reported that he could not relate Dr Carson’s symptoms of distress directly to any neuropsychological dysfunction.
Dr Wood is a neuropsychologist. His rooms were next to Professor Goldney’s rooms.
Professor Goldney did not, by giving the evidence referred to, commit perjury. Perjury (although the offence is called Giving False Testimony) is a statutory offence: s 35 Crimes Act 1914 (Cth). A person who intentionally gives false testimony touching any matter material in that proceeding shall be guilty of an indictable offence. One element of the offence is that the person giving the testimony intentionally gave false testimony in the sense that he knowingly gave false testimony. An incorrect statement of fact under oath is not by itself perjury or giving false testimony. The maker of the statement has to intend to give false testimony. The false testimony has to be given in a judicial proceeding: s 35 Crimes Act 1914 (Cth).
In any event, the AAT Act provides for a statutory offence for false evidence. Section 62A provides:
‘False or misleading evidence
A person appearing as a witness before the Tribunal shall not give evidence that, to his or her knowledge, is false or misleading.
Penalty: $1,000 or imprisonment for 3 months.’
Professor Goldney referred the appellant’s counsel to his reports where he said any referrals for psychometric testing would be recorded. The referrals were, in fact, there recorded. There is not a scintilla of evidence to support any allegation that Professor Goldney committed perjury.
There is no evidence that Professor Goldney gave evidence that was, to his knowledge, false or misleading. One statement may have been wrong but that is not an offence. It does not become an offence unless it can be established that Professor Goldney knew what he said was false or misleading.
There is nothing in the second ground.
The respondent submitted that, in any event, the results of the testing add nothing to the appellant’s case. The appellant, on the other hand, says that the results show the absence of neurological abnormalities which supports his contention that he had no pre-existing disorder which accounts for any proportion of the 10% impairment he now suffers.
The appellant tendered the report of Dr Wood dated 2 July 1995 and the results of the MRI scan. Ms Bean objected on the basis that I did not have power to receive fresh evidence on an appeal such as this. I marked the reports for identification and said I would rule on the admissibility of the material in my reasons.
In written submissions filed with leave after the hearing, the respondent submitted that whilst the application pursuant to s44(1) of the AAT Act is described as an ‘appeal’ it is in reality brought in the Court’s original jurisdiction conferred by s19 of the Federal Court of Australia Act 1976 (Cth) (‘the Federal Court Act’).
Section 19 of the Federal Court Act does not of itself confer jurisdiction on the Court. Rather, it provides that the original jurisdiction of the Court may be conferred by other laws of the Parliament. However, s19(2) does provide that ‘the original jurisdiction of the Court includes any jurisdiction vested in it to hear and determine appeals from decisions of … tribunals other than courts’. Therefore, appeals heard by the Federal Court in the exercise of jurisdiction conferred by the AAT Act are heard in the court’s original jurisdiction.
There may be circumstances where fresh evidence is admissible on appeal to the Federal Court from a decision of the AAT. Those circumstances would necessarily be rare because the appeal to this Court is on a question of law: s 44, Administrative Appeals Tribunal Act 1975. I agree with Spender J’s observations in Servos v Repatriation Commission (1995) 56 FCR 377 at 385:
‘As s44 of the Administrative Appeals Tribunal Act makes plain, only questions of law are to be considered at the Federal Court level. The policy of the legislation in my opinion is to make the decision of the Tribunal final on questions of fact. It is inconsistent with that policy to seek to adduce evidence before the Federal Court for the consideration of the Court on an application pursuant to s44 of the Act, the object of which is to invite the Court to disagree with the factual conclusion reached by that tribunal.’
The evidence was sought to be adduced, I think, for two reasons. First, the appellant was attempting to discredit the evidence of Professor Goldney by relying on it in support of an allegation of perjury. The evidence could not achieve that end. Nor could the evidence be used simply to support an argument that Professor Goldney’s evidence was unreliable. Professor Goldney had acknowledged the results of the MRI and testing by Dr Wood in an earlier report, and had formed his opinion despite these results. In any event, the second AAT was far better placed to undertake an analysis of that witness’ credibility.
Secondly, the appellant sought to rely on the ‘new’ evidence to establish the absence of any pre-existing disorder to which the second AAT attributed 5 per cent of his 10 per cent impairment.
The appellant also sought to rely on a report of Dr A.J. Langley dated 21 February 1986 in which Dr Langley expressed the following opinion:
‘I have examined the reports provided by Dr Carson and have sought a further expert report from Dr R. Goldney. After consideration of these reports I wish to state that I consider that there is no medical condition that would prevent Dr Carson from resuming work as a research scientist.’
However, that report is not evidence of the absence of a medical condition, but rather the absence of a medical condition that would prevent the appellant from returning to work.
The evidence is not admissible on this appeal.
In my opinion, none of the three documents sought to be tendered by Dr Carson on appeal should be admitted into evidence.
The appellant abandoned his fourth ground of appeal at the hearing.
The appellant argued that the second AAT failed to give effect to the legislative purpose or intent which the Full Court described in Whittaker v Comcare (1999) 86 FCR 532 (at 545) as being to compensate ‘an employee who suffers injury causing more than minor permanent impairment’. The second AAT had to determine whether the appellant was entitled to compensation under ss 24 and 27 of the Act. It had to determine whether the appellant’s degree of impairment due to an injury was not less than 10 per cent. The statement by the Full Court does not bear upon the task which confronted the second AAT.
The appellant argued that the evidence of both Dr Davis and Professor Goldney was unreliable, and that in those circumstances, the evidence of Dr Le Page should have been preferred by the second AAT. The appellant claimed that he should have been given ‘the benefit of the doubt’. However, this submission does not recognise the balancing exercise already undertaken by the second AAT. The second AAT considered the evidence of all three expert witnesses in detail. The analysis of the expert evidence occupied some 21 pages of the second AAT’s written reasons. The various expert witnesses were accepted on some points and not others. The Tribunal member correctly identified the role of the expert witnesses as being to answer the question of scientific causation, not the question of legal liability for injury and impairment under the Act. The Tribunal member decided that question after an appropriate consideration of the expert evidence and making the appropriate findings. In those circumstances, the Tribunal member has committed no error of law.
I reject the fifth ground of appeal.
Various other errors were said by the appellant to have been committed by the second AAT.
First, the appellant argued that the Tribunal member was under a misapprehension as to which report prepared by Dr Davis was relied upon by the Independent Review Officer in coming to his decision of 21 November 2000.
In para [19] of the Tribunal member’s reasons, he says ‘[t]he officer relied on psychiatric reports dating back to 1985. However, the decision relied heavily on a new report of Dr Davis’. The appellant contended that the reference to the ‘new’ report was a reference to a report prepared after the decision of 21 November 2000.
Three reports were prepared by Dr Davis dated 4 August 2000, 8 June 2001 and 27 November 2001. It is clear from the chronology of reports and the Independent Review Officer’s decision of 21 November 2000 that he relied upon the report of 4 August 2000. It is unclear why the Tribunal member referred to the Independent Review Officer relying on a “new” report of Dr Davis. One possibility is that the term ‘new’ is used to highlight the recency of the report compared with the other reports relied upon by the Officer. Alternatively, the Tribunal member may have mistakenly understood the report of 8 June 2001 to have been before the Officer. However, even if the reference to ‘new’ means the latter, the error had no bearing on the outcome of the case. The only significant difference between the reports is that in the report of 8 June 2001 Dr Davis assessed the level of impairment as 10% rather than 10 – 15% as he did in the earlier report. The total level of impairment was not really in dispute at the second AAT. Rather, the relevant questions were those of causation and apportionment.
Secondly, the appellant contends that he was under the misapprehension that he would be paid the compensation awarded pursuant to the Comcare assessment of 11 September 2000 unless he ‘appealed’ the assessment. He says that by the facsimile of 5 October 2000, he did not seek a reconsideration within the meaning of s 62 of the Act but rather a higher assessment of damages being presumably a higher assessment for non-economic loss. However, both the facsimile and s 62 are clear in their terms. The appellant sought a ‘reconsideration of the assessments of his entitlements under both secs 24 and 27’, the assessment under s 24 involving a determination of the percentage of work-related impairment. There can be no doubt that the communication was a request to reconsider all aspects of his claims under both sections. In any event, Comcare had the power to reconsider its decision of its own motion: s 62(1) of the Act.
Thirdly, the appellant complains of a finding (at par [144]) that ‘Dr Le Page stated that none of the [appellant’s] impairment was work-caused’. In fact, Dr Le Page had offered the opinion that all of the [appellant’s] impairment was work caused. This error was clearly a slip on the part of the Tribunal member. I accept the respondent’s submission that it is clear from the Tribunal’s summary of Dr Le Page’s evidence that the Tribunal member correctly understood Dr Le Page’s evidence. The error was clerical and nothing turns on it. As stated by Kirby J in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291:
‘The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach combing through the words of the decision maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.’
Finally, the appellant says that some documents were excluded from the documents placed before the Tribunal. There is nothing in this point. I have already dealt with the documents which were not before the Tribunal and which Dr Carson sought to tender on appeal. The fact that the appellant failed to put those documents before the AAT is not an error on the part of the AAT, let alone an error of law.
The appeal should be dismissed.
I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate:
Dated: 22 December 2003
Appellant appeared in person. Counsel for the Respondent: Ms K Bean Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 24 September 2003 Date of Judgment: 22 December 2003
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