Commission for the Rehabilitation & Safety of Commonwealth Employees v Hairis, D

[1993] FCA 177

Re: COMMISSION FOR THE REHABILITATION AND SAFETY OF COMMONWEALTH EMPLOYEES
And: DESPINA HAIRIS
No. NG395 of 1991
FED No. 177
Number of pages - 13
Administrative Law - Evidence

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Einfeld J(1)

CATCHWORDS

Administrative Law - appeal from Administrative Appeals Tribunal - employees' compensation - compensation paid for total incapacity for 18 years for a functional overlay - causal nexus with employment injury - absence of change in circumstances to justify or explain decision to terminate compensation - Tribunal's preference for expert medical evidence supporting employee's claim - no question of law

Evidence - compensation paid for 18 years - no change in circumstances - unjust consequences if no de facto evidentiary burden on employer to show why compensation stopped or why it should not be continued

Commonwealth Employees' Compensation Act 1930

Commonwealth of Australia v. Muratore (1978) 141 CLR 296

Kirkpatrick v. Commonwealth (1985) 62 ALR 533

Barker v. Australian Telecommunications Commission (1990) 95 ALR 77 (On appeal to a Full Court of the Federal Court (Davies, Gummow and Hill JJ) unreported 7 December 1990)

Australian Telecommunications Commission v. Tzikas (1986) 5 AAR 173

HEARING

SYDNEY, 6 March 1993

#DATE 31:3:1993

Counsel and solicitor Mr G T Johnson instructed
for the applicant: by Australian Government Solicitor

Counsel and solicitor Mr L T Grey and Ms J C
for the respondent: Pentelow instructed by T D

Kelly and Co

ORDER

The Court orders that:

1. Appeal dismissed.

2. Applicant to pay respondent's costs.

Note: Settlement and entry of orders are dealt with in accordance with Order 36 of the Federal Court Rules.

JUDGE1

EINFELD J Born in Egypt on 11 December 1930, the respondent (Mrs Hairis) came to Australia in 1963 and commenced employment as a tea lady for the Commonwealth Director of Works at Australia Square. On 5 January 1971 one of the wheels of her laden tea trolley became caught in the gap between a lift and the floor and began to fall. She tried to stop it from capsizing but it fell on her arm and she took its weight (the injury). The injury caused her to stop work and she made a claim for compensation on 13 January 1971. On 5 February 1971 a delegate of the Commissioner for Employees' Compensation awarded her compensation under the Commonwealth Employees' Compensation Act 1930 (the Act) for left shoulder strain and aggravation of a pre-existing spondylosis of the cervical spine for certain dates in January and from 5 February 1971 and continuing.

1. In August 1971 Mrs Hairis was declared fit to return to light duties but as no light duties were available, she received compensation for total incapacity. On the basis of medical evidence dating from soon after the injury, Mrs Hairis was subsequently found by the delegate to be suffering, in and from August 1972, from a functional overlay related to and flowing from the injury, and compensation continued to be paid for total incapacity from that cause for another 16 years. On 17 December 1988 she was advised that liability would be accepted until 30 June 1989 but on 21 December 1988 the applicant (COMCARE) determined, and on 20 February 1989 affirmed, that from 5 January 1989 compensation would cease to be paid because she was fit for work.

2. On 23 February 1989 Mrs Hairis sought a review by the Administrative Appeals Tribunal of the 20 February 1989 decision. After a hearing on 13 and 25 June and 14 September 1990, the Tribunal on 24 June 1991 remitted the matter to COMCARE with a direction that as Mrs Hairis was totally incapacitated for work from 5 January 1989 by reason of a functional overlay resulting from the injury, she was entitled to compensation. COMCARE appeals to this Court from that determination. The grounds in the notice of appeal are somewhat repetitive but they amount to an assertion that there was no evidence to support the Tribunal's findings that:
   

a) the applicant had suffered a personal injury, in the form of a functional overlay, within the meaning of the Act; and b) she was totally incapacitated for work.

1. The Tribunal found that Mrs Hairis' evidence was confusing and contradictory. It summarised her evidence as follows:
   

In her oral evidence, the applicant complained that at the time of the accident she had burning of the spine, numbness in the hands, something wrong with her ribs and could not walk. Currently, she cannot lift anything with the left arm and she gets severe pain in the muscles of the left arm and the joint of the shoulder, the thumb of the right hand is sore and her back burns. She has pain in the lower back going towards the buttock which prevents her from walking and going up stairs, pain shooting down through her legs, pain from the left buttock shooting up to her left shoulder, pain in the right wrist and the inside of the right elbow and her knees swell down to the toes. Later when questioned, the applicant said that she only had pain in the left shoulder on the first day after the accident.

1. There was a large volume of medical evidence available to the Tribunal, both in writing and by way of oral evidence given in the witness box. This evidence was not much less inconsistent and troublesome. Some of the doctors who had examined Mrs Hairis were either dead or no longer in practice. Some of the evidence was quite old. There was an extensive range of general practitioner, radiological, surgical, physician and psychiatric opinions.

2. There was some support in the medical evidence for a continuing organic problem: see Dr Taylor's report of 27 July 1989 (appeal book pp 254-5) and his evidence (appeal book pp 152-164); Dr Searle's report of 13 November 1989 (appeal book pp 259-60) and his evidence (appeal book pp 133-45); Dr Seaton's report of 18 December 1989 (appeal book pp 261-3) and his evidence (appeal book pp 180-94); Dr Benanzio's report of 2 December 1972 (appeal book pp 72-9). But the weight of the evidence was, and the Tribunal found, that whatever physical injury Mrs Hairis had suffered in the incident with the tea trolley had wholly or substantially resolved, at least from the standpoint of causing the bulk of her incapacity: see for example Dr Furber's reports of 9 December 1988, 18 May 1989 and 4 May 1990 (appeal book pp 108-9, 268-9, 270-1), and his evidence (appeal book pp 194-203).

3. However, she had developed disabling psychological consequences from the injury which the doctors attributed to different causes. There was ample evidence that Mrs Hairis had been suffering from a functional or neurotic overlay since soon after the accident and that she was still suffering from some such condition: see Dr Watts' report of 23 February 1971 (appeal book p 66); Dr Benedek's reports of 14 June 1972 (appeal book p 83) and 31 August 1973 (appeal book p 90); Dr Nield's report of 16 June 1989 (appeal book p 274) and his evidence (appeal book p 210); Dr Grady's reports of 26 May 1989 (appeal book p 252) and of 8 March 1990 (appeal book p 278) and his evidence (appeal book pp 216-8). Dr Maguire, a psychiatrist, diagnosed "abnormal illness behaviour" which he described as follows:
   

Abnormal illness behaviour essentially means that the person's way of behaving with respect to their illness and their complaints of disability is inconsistent with what can be found on physical findings and what can be explained by investigations. So there is a total inconsistency between the person's illness behaviour - and I would just point out, some of this abnormal illness behaviour goes the other way; they may be seriously ill and refuse to seek medical treatment, or it can go the other way, it can be abnormal affirming behaviour or abnormal denying behaviour. Mrs Hairis appears to be the more common pattern which is claiming and behaving as if she is more disabled than can be explained on the basis of investigations and examination. It is very often characterized on examination by inconsistencies in the findings - say, a weakness on examination, that when the person is being observed but not formally examined, the weakness is not as marked. I am not saying that is in her case, but I am just giving some examples of how examining specialists diagnose abnormal behaviour.

1. In answer to a question seeking the cause of the condition, the doctor answered:
   

My feeling is that the two primary ... factors leading to the long history of abnormal illness behaviour would have been the desire to be at home, presuming that is the primary motive. If there is no psychiatric disorder you have to start looking for these other motivating factors. So I would say the desire to be at home looking after the children and the mother, if we are excluding that she just did not want to work, and that is obviously a motivating factor too, the desire to look after the children and the mother, and the fact that it was compensable, I think they are the two primary factors. The injury itself, 99.9 per cent of the population would have rapidly recovered from it, from what I have read, so there was nothing in the injury. It was not a psychologically shocking event. She was not trapped in the building, there was nothing unique about the injury itself that would lead to an abnormal illness behaviour. You have to look at other factors that lead to the abnormality and I think it is the underlying conflict or need. That is what one looks for in abnormal behaviour. The classic behaviour is the child who develops a stomach ache on the day they are having an exam. It would be silly to say the exam caused the stomach ache. What has caused the stomach ache is the child's conflict about the exam. What I am saying about this lady, the accident did not cause the abnormal illness behaviour; what has caused the abnormal illness behaviour are factors within her, and I am postulating as to what they are related to. I think for the same reasons - it really then comes down to the compensability of it. If it had not been compensable financial constraints may have forces her to overcome whatever other needs she had to be at home and return to work.

1. Dr Maguire said that he did not believe Mrs Hairis was fabricating a bad back and that she believed in her illness and incapacity for work. He felt that her condition had been maintained by the payment of compensation. However, in answer to a key question from a member of the Tribunal:
   

Is there any appropriateness in making an analogy between a limb that has been immobilized or inappropriately protected by a person for that period of time, from 1971 to 1990, with all of the consequent atrophy, I suppose, of muscles et cetera, is there any possibility of making an analogy between that physical situation and this psychological situation where you have a personality which has been in a sense immobilized since 1971 up until 1990? Is it possible then to consider that this person could suddenly go back to work without the abnormal illness behaviour with that period of the reinforcement?

the doctor pointedly replied:

I think you have a good point there. The problem here is that it has been going on for 18 years, so it is a good analogy and I would not be that optimistic that that pattern of behaviour has become so entrenched in 18 years that it would be enormously difficult to reverse.

1. The Tribunal's principal factual findings were set out in paragraphs 33 and 34 of its determination:
   

33. All of the evidence indicates that prior to 5 January 1971 the applicant was in good physical and psychological health and that the accident occurred at work in the manner described by the applicant. Indeed, there is no evidence to the contrary. The Tribunal accepts the diagnosis made by Dr Watts when he examined the applicant on 22 February 1971. He diagnosed a strain of the anterior left shoulder muscles and some aggravation of outstanding degenerative changes in the middle cervical disc spaces caused by the accident of 5 January 1971. He described the possible persisting mild left shoulder and neck pain as secondary and completely overshadowed by the applicant's massive neurotic overlay. The Tribunal also accepts the diagnosis of severe functional overlay triggered by the incident of 15 January 1971 in the report of Dr Benedek, the respondent's psychiatrist, of 14 June 1972.

34. The Tribunal accepts the views of Dr Furber and Dr Nield amongst others that there is no organic basis for the full range of symptoms described by the applicant. We further note that Dr Searle concedes that at least some of her disability does not have an organic basis. Dr Taylor's evidence describes a restriction of movement and stiffness of the neck and back possibly caused by the accident but he is unable to put it any higher than that. Accordingly the Tribunal finds that the applicant suffered a strain of the anterior left shoulder muscles and an aggravation of the pre-existing degenerative disease of the cervical spine arising out of the work accident on 5 January 1971. Having considered all the evidence including the reports and evidence of medical examinations conducted in and after 1988 the Tribunal is satisfied that on the balance of probabilities the effects of the strain had ceased by then and that any continuing adverse symptomatology arising from the aggravation of the pre-existing degenerative disease of the spine was minimal and did not cause any incapacity for work in the applicant.

1. On an appeal limited as here to matters of law, there can be no possible quarrel with these findings. Likewise the Tribunal's rejection of fabrication and its subsequent conclusions cannot be criticised (appeal book p 301):
   

35. Although most of the medical examiners report unusual and contradictory symptoms, no medical examiner has expressed the view that the applicant was deliberately fabricating them. Nor can the Tribunal find any evidence of fabrication. Accordingly the Tribunal finds on the balance of probabilities that the applicant is not fabricating her illness, that this illness has continued and has been reinforced by continued compensation over 18 years, and that as a result of it the applicant is totally incapacitated for work, the illness being a neurosis manifesting as functional overlay.

39. Although a number of medical practitioners described quite accurately, some aspects of the behaviour of the applicant demonstrating the disorderly functioning of her mind, they were unable to put a precise psychiatric label on the particular disorder. We do not believe that the inability to find a precise psychiatric category for the disorder prevents us from deciding on the balance of probabilities that there was an illness arising out of the incident in 1971. We note also that the constrictions placed upon the psychiatrists interviewing the applicant in this matter in terms of the applicant's communication problems, the lack of reliable and complete information provided from other sources and the limitations of time.

1. The medical evidence that Mrs Hairis was totally incapacitated was overwhelming: see amongst other practitioners Dr Grady at appeal book pp 214-8 and 252; Dr Taylor at p 255; Dr Searle at p 260; Dr Seaton at p 263; and Dr Nield at p 277. Hence the further conclusions of the Tribunal at paragraph 36 were in my view legally if not factually unexceptionable:
   

36. The Tribunal's observations of the applicant and her evidence of her symptoms confirmed the original diagnosis of Dr Benedek. Having considered all of the evidence the Tribunal finds on the balance of probabilities, that the musculo-ligamentous strain of the anterior left shoulder muscles and the aggravation of the degenerative changes in the cervical spine were secondary to the severe neurotic functional overlay triggered by the accident of 5 January 1971. The Tribunal is satisfied that the functional overlay has continued since then and has made, and continues to make, the applicant totally incapacitated for work.

1. After quoting from the case law, the Tribunal found that:
   ... prior to the accident (Mrs Hairis) may have had a basic personality which made her vulnerable to the functional overlay in the circumstances of the work accident. However, this is not a situation where (Mrs Hairis) was suffering from an idiopathic or autogenous disease which would in its normal course have resulted in the functional overlay condition and furthermore in the present case there was an accident in the course of employment which triggered the condition.

2. The Tribunal concluded that Mrs Hairis' functional overlay "was a direct sequelae (sic) of the accident" and continues to make her totally incapacitated for work.

3. Because the evidence was so decisive on the existence of the functional condition and its incapacitation of Mrs Hairis, the only true question at issue before the Tribunal was whether the condition was caused or contributed to by the injury. For 18 years the delegate of the Commissioner and COMCARE certainly thought that it was. To support this powerful endorsement, the following facts were not disputed:
   

1. Mrs Hairis was in good mental and physical health prior to the injury.

2. In particular Mrs Hairis had no pre-existing morbid mental condition.

3. The injury occurred as alleged.

4. The onset of her neurotic or abnormal symptoms was contemporaneous with or followed soon after the injury.

1. Of course contemporaneity will not by itself be sufficient to attract liability, but the early appearance of symptoms of a condition after an injury will normally be some evidence of a causal nexus, just as the absence of symptoms for a long period after an injury will normally be evidence contradicting the nexus. Medical evidence to this effect is common and occurred in this case.

2. The appellant attacks the evidence supporting the nexus as having been given "by persons without psychiatric qualifications". Even if true - and the views of renowned medical specialists in fields other than psychiatry but with considerable experience in compensation situations should not be so easily dismissed - such a fact would not support the appeal. A functional overlay is not in truth a psychiatric illness, as the evidence establishes - if evidence be necessary on such a widely known consequence of trauma. Virtually all the doctors who gave evidence on the matter either before the Tribunal itself or in reports were very experienced specialists of one kind or another who between them have examined thousands of injured workers with emotional consequences from minor physical injury. If their expertise to testify about functional overlays was to be challenged, it was a matter to be raised before the Tribunal itself. The transcript made available to me does not reveal any such challenge. I cannot now decide that these persons lacked the qualifications to give the evidence they gave.

3. In any event, there is no rule of law that the evidence of an experienced orthopaedic or general surgeon about functional overlays must be rejected by a tribunal of fact in favour of the evidence of a psychiatrist on the same subject. That is a matter for the tribunal of fact to weigh up for itself, taking into account the condition in question, the experience of the respective practitioners, their application to the task in hand, how much time they have spent with the patient to assess the condition, the tribunal's own assessment of the injured worker and the doctors in the witness box, the content of the cross examination, and many other factors. It is a matter of weight if the tribunal of fact, upon undertaking that task, prefers the evidence of one expert with considerable experience in the field to a psychiatrist, however talented. A question of law will rarely arise to set aside an assessment of evidence in such circumstances.

1. COMCARE also argued that the "non-expert" evidence of neurotic or functional overlay long predated 5 January 1989 when compensation was terminated. It is presumably said to follow that the evidence was not probative. This is a manifestly misconceived submission and demonstrates the mischief caused when there is a change of legal position without a proved or evidenced change of factual circumstances. There is virtually no dispute at all that Mrs Hairis has some type of mental or neurotic condition. Whatever it is, she has had it since very soon after the injury and appears likely to have it in the future.

2. If it is a compensation neurosis as described by Dr Greenberg in his report of 16 October 1974 (appeal book p 101), it was not caused by the injury: Kirkpatrick v. Commonwealth (1985) 62 ALR 533; Australian Telecommunications Commission v. Tzikas (1986) 5 AAR 173. If, however, the injury, the payment of compensation for the injury, and the after-effects for 18 years have brought about a state of affairs which has become entrenched in Mrs Hairis' mind as a real and disabling condition, the condition is not only recognisable medically, it is in law perfectly able to be sourced in the injury for which the compensation was originally paid.

3. The appeal raises another related issue of an evidentiary nature. The Tribunal decided that its review of the decision to terminate compensation on and from 5 January 1989 was not limited to the need to identify and accept evidence of a change of circumstances warranting the termination at that time, and that COMCARE had no evidentiary burden in this case to prove the change of circumstances: see paragraphs 52 and 53 at appeal book pp 311-2. Mrs Hairis filed a notice of contention against these conclusions based on my judgment in Barker v. Australian Telecommunications Commission (1990) 95 ALR 77 at 83 applying Commonwealth of Australia v. Muratore (1978) 141 CLR 296. On the appeal in Barker, a Full Court of this Court (Davies, Gummow and Hill JJ) did not deal with this point but affirmed that Muratore had application in "apposite circumstances" (unreported 7 December 1990 at p 8). In view of my other findings, it is not necessary to deal with this notice of contention here in a final way, but it is useful to reflect briefly on the unfairness that would flow if such an approach is not followed in cases of this kind.

4. COMCARE not only submitted that the evidence of nexus of Mrs Hairis' condition to the injury was deficient and worthless because it predated the termination of compensation; it also submitted in writing that "there was no evidence of any incapacity on or after 5 January 1989 resulting from any psychiatric illness to which the legislation applied". The date 5 January 1989 was chosen as the cut off date for compensation by COMCARE and it has given no reason for choosing that date. Because there is no evidence to justify the date, there is nothing to compete with the conclusion that it would be a coincidence of a high order if the 18th anniversary of the injury was not the supposed justification. Such a reason provides no legal basis for terminating compensation and for re-determining, adversely to the worker, the existence of a condition accepted for 18 years, its relationship to the injury, or her incapacity for work.

5. Yet COMCARE sought to argue that it need not, but Mrs Hairis must, satisfy an evidentiary test referable to that date, notwithstanding 18 years of payments for a condition COMCARE suddenly then denied, for a relationship with the injury which it suddenly then refuted without evidentiary explanation, and for an incapacity which it then said for the first time was non-existent. The law could not be so one-sided and unjust. There is no need for a person receiving compensation for an acknowledged and revealed condition and for an accepted incapacity to see doctors and gather medical evidence against the possibility that 20 years or so later she might have to prove a case in court. Nor could such a reversal of position be sensibly explained to an injured worker and those associated with the worker, any more than it is likely to be persuasive if a worker sought to establish a right to compensation for the first time 18 years after the alleged injury when the condition in question had existed throughout.

6. In my opinion there was abundant evidence to support the Tribunal's findings that a disorderly functioning of Mrs Hairis' mind in the form of a functional overlay had been caused by the injury. Just as the condition had been recognised by COMCARE and its predecessor as incapacitating for 18 years from the evidence available to them, the Tribunal was likewise perfectly entitled, and in my opinion correct, to conclude from the evidence, much of it the same, that the condition continued to exist and to incapacitate Mrs Hairis for work after the termination date chosen by COMCARE.

7. The appeal will be dismissed with costs.