Colley, N.M. v Health Insurance Commission

[1990] FCA 758

Re: NORMA MARY COLLEY
And: HEALTH INSURANCE COMMISSION
No. G296 of 1986
FED No. 758

COURT

IN THE FEDERAL COURT OF AUSTRALIA

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

HEARING

SYDNEY

#DATE 22:11:1990

Counsel for the applicant: Mr R.C. Parks

Solicitors for the applicant: Cheney and Wilson

Counsel for the respondent: Mr S. Gageler

Solicitor for the respondent: Australian Government Solicitor

JUDGE1

This is an appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") on a claim brought by Mrs N.M. Colley for compensation under the Compensation (Commonwealth Government Employees) Act 1971 (Cth)("the Act"), in respect of an injury or disease of osteo-arthritis in both knees.

1. The Tribunal found in favour of the claim to the extent of directing that Mrs Colley receive compensation for total incapacity from 17 March 1986; but the Tribunal found that Mrs Colley was not entitled to compensation for incapacity from the date of her retirement from work on 24 December 1981 up to 17 March 1986.

2. The evidence left open to the Tribunal many possible conclusions of fact. On the issue of liability, Dr F. Ehrlich expressed the view that the traumas to Mrs Colley's knees which occurred during the employment in 1979 and 1980 were minor and had a temporary effect only on her progressive osteo-arthritis. Other medical practitioners felt that the 1979 and 1980 incidents had contributed in a material way to the progression of the disease. The Tribunal found in favour of the claim on this point.

3. On the issue of total and partial incapacity and compensation therefore, different views were expressed. Dr A.P. Millar reported in 1984 that Mrs Colley was fit to do part-time light duties, say 10 to 20 hours per week. Dr Millar gave like evidence before the Tribunal. Dr Geoffrey Mutton, who was the treating orthopaedic surgeon and who first saw Mrs Colley in 1979, reported in 1984:-
   

"I would not have expected the symptoms that Mrs Colley was experiencing in her knees to have prevented her from continuing work as a clerk, and in my questioning of Mrs Colley at no stage did she say that she left work at Medibank because the symptoms in her knees became intolerable. After examining Mrs Colley today I still believe she is quite fit to work as a clerk. Because of the state of her knee joints I would advise her against performing work that involves climbing ladders or stairs or involves lifting and carrying activities. I would advise her against carrying out work that required her to stand on her feet for prolonged periods of time."

1. A year later, Dr Mutton reported:-
   

"In spite of the state of Mrs Colley's knees, I believe she is still fit to carry out clerical duties. She would of course be unable to take on work that required her to sit and stand frequently or to stand on her feet or to walk to any degree."

1. On 24 April 1986, Dr Mutton reported:-
   

"I believe that Mrs Colley has virtually reached the stage now where she is unemployable, even for clerical duties."

1. Dr Ehrlich for his part reported in 1985 that Mrs Colley would be:-
   

"most suited to largely sedentary work."

1. These differing views left many conclusions open to the Tribunal. It is therefore of significance that an appeal under section 44 of the Administrative Appeal Tribunal Act 1975 (Cth) is limited to a question of law. In Waterford v The Commonwealth (1987) 163 CLR 54 at p 77, Brennan J, said:-
   

"A finding by the A.A.T. on a matter of fact cannot be reviewed on appeal unless the finding is vitiated by an error of law. Section 44 of the A.A.T. Act confers on a party to a proceeding before the A.A.T. a right of appeal to the Federal Court of Australia `from any decision of the Tribunal in that proceeding' but only `on a question of law'. The error of law which an appellant must rely on to succeed must arise on the facts as the A.A.T. has found them to be or it must vitiate the findings made or it must have led the A.A.T. to omit to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact."

1. More recently in Australian Broadcasting Tribunal v Bond (1990) 64 ALJR 462, the High Court emphasised the distinction between an issue of fact and an issue of law. At p 479 Mason C.J. said:-
   

"In accordance with what I have already said, a finding of fact will then be reviewable on the ground that there is no probative evidence to support it and an inference will be reviewable on the ground that it was not reasonably open on the facts, which amounts to the same thing."

1. Counsel for Mrs Colley, Mr R. Parks, submitted the Tribunal did not address the question of partial incapacity, but clearly the Tribunal did both in the Tribunal's reasons and in the order made. Mr Parks also submitted that the Tribunal did not give reasons for its findings on partial incapacity; but again the Tribunal did so. What the Tribunal did not do was to discuss Mrs Colley's evidence. The Tribunal when dealing with the point said:-
   

"20.I have no doubt that the medical facts as to the applicant's capacity to work should be found in accordance with the evidence of Dr Mutton. The applicant was referred to him shortly after the 1979 injury. He has been her treating specialist over the whole period and has written four full and careful reports about her during the course of his treatment. In giving evidence he impressed with his knowledge of the applicant and his impartiality as a witness. I find the facts in relation to the applicant's capacity to work in accordance with Dr Mutton's evidence.

21.Dr Mutton does not support the applicant's claim for compensation for incapacity from when she ceased working with the respondent. He was of the view that she would have been able to continue with clerical duties when he reported in August 1982, July 1984 and in March 1985. Nor did he subscribe to the view expressed by Dr Millar that these critical duties would have to be part-time only. It was only when he saw the applicant on the 22nd April 1986 that he finally reached the conclusion that the applicant had become totally incapacitated for work. Dr Millar had reached that conclusion one month earlier at an examination on the 17th March 1986. It seems reasonable to accept that date as marking the commencement of the applicant's total incapacity. Accepting as I do Dr Mutton's evidence that the applicant had, before that date, been able to do her former employment full-time with the respondent I find that she is not entitled to compensation before 17th March 1986 for total or partial incapacity."

1. As the Tribunal was entitled to find that Dr Mutton's evidence was that Mrs Colley had, before 17 March 1986, been able to do her former employment full-time with Medibank, then the Tribunal's acceptance of that evidence sufficiently satisfied the tests laid down by sections 46 and 26 of the Act.

2. Mrs Colley was incapacitated at least partially from 1980 onwards and the Tribunal was bound to so find. See Arnotts Snack Products Pty Limited v Yacob (1985) 57 ALR 229 and my own judgment in Gersbach v Australian Telecommunications Commission unreported, delivered 30 June 1986. On my reading of the Tribunal's reasons the Tribunal accepted that point and went on to examine compensation in the light of the tests prescribed by sections 46 and 26 of the Act. The Tribunal did not mention those provisions but the finding of fact made in paragraph 21 of the reasons was sufficient to disqualify Mrs Colley from entitlement under those sections. In my view, that finding made by the Tribunal was open to it on Dr Mutton's evidence. Though Dr Mutton did not use the precise words attributed to him in paragraph 21 of the Tribunal's reasons it is clear from his reports, particularly the report of 12 July 1984, that Dr Mutton had in mind the clerical work which Mrs Colley had in fact been doing at Medibank. The Tribunal was entitled to conclude from Dr Mutton's reports and from his oral evidence that he had not advised Mrs Colley to leave her employment and that he thought that, until 1986, she had had the capacity to continue it.

3. Dr Mutton's opinion as to what Mrs Colley could do accorded with the tasks which Mrs Colley said that she was doing at Medibank before her retirement. Mrs Colley said, for example:-
   

"You were placed on what might be described as an elevated chair, were you?---When the Health Commission decided to make each claims officer a cashier and be responsible for their own work each day, the barrier was taken down and then we would use the chairs then. Each had a chair. ...

A customer would come to the counter with a request of some description and depending on the nature of that request, you would have to get up from your chair?---Several times a day, yes. I would have to go - do you want me to tell you what I had to do?

If we could try to break it down - the majority of your duties, could they be carried out with you remaining in a seated position or not?---No, you would have to go to answer the phone; you would have to go to the fiche with most of the customers to find out their Medibank numbers and you would have to go to the cabinet to get a book - a registration book - which I was doing when I had the accident and go to the cabinet for the various papers required for each person."

1. That evidence seems to accord with the clerical duties which Dr Mutton thought Mrs Colley could do. Mrs Colley's own evidence was in fact not as strong as her counsel, Mr Parks, suggested, Mrs Colley was not dismissed from Medibank. She volunteered to take a redundancy package which was available to Medibank employees. The financial incentives offered played a part in her decision to retire, and, in answer to the question whether if the voluntary retirement issue had not been raised she would have continued on with Medibank she replied, and I quote:-
   

"I do not know. I just do not know."

1. In any event the Tribunal was entitled to place substantial weight on the evidence of Dr Mutton, the treating orthopaedic specialist, who had the responsibility and care of Mrs Colley over the period. It is worth noting that the evidence of Mrs Colley on which Mr Parks has relied in this appeal and which he seeks to emphasise was not put to any of the medical practitioners who gave evidence before the Tribunal, notwithstanding that in a case in which the issues turned on the cause, the extent of and the effects of a medical condition, the views expressed by the medical experts were likely to be influential. This was a case where the facts were required to be determined not solely by but having regard to or by reference to expert medical opinion. See, eg., Tubemakers of Australia v Fernandez (1976) 10 ALR 303, particularly the reasons of Mason J.

2. In the result, I am unable to find any error of law in the Tribunal's decision. This is not a case such as Gersbach's case, which also considered total and partial incapacity and in which an error was identified and the matter was sent back for rehearing. The decision in Mrs Colley's case was made difficult by the fact that she had accepted a redundancy package, influenced presumably by her state of health, her age and the financial incentives offered. No doubt, once she had retired her prospects of obtaining other work were minimal. But she had retired voluntarily. In these circumstances, the Tribunal was clearly entitled to adopt the view which Dr Mutton expressed as to the effect of the arthritic condition on Mrs Colley's ability to earn. No further discussion of the issue by the Tribunal was required.

3. I need not discuss individually each of the errors of law proposed by Mr Parks. I have dealt with the substance of the points raised and I reject the errors which he has propounded. The appeal will therefore be dismissed with costs. The order of the Court is that the application is dismissed with costs.