Commonwealth v Mifsud

[1965] HCA 56

HIGH COURT OF AUSTRALIA

Taylor, Menzies and Windeyer JJ.

THE COMMONWEALTH v. MIFSUD

(1965) 114 CLR 505

5 November 1965

Workers' Compensation

Workers' Compensation—Commonwealth employees—Certificate of medical board—Conclusive effect—Scope of information which may be required by Commissioner—Commonwealth Employees' Compensation Act 1930-1959 (Cth), s. 19 (4).

Decisions

November 5.
The following written judgments were delivered: -
TAYLOR AND MENZIES JJ. On 14th October 1964 the respondent secured from a District Court exercising jurisdiction pursuant to s. 20 of the Commonwealth Employees' Compensation Act 1930- 1959 (Cth) an award of weekly compensation on the basis that he was partially incapacitated for work. The award is attacked on the single ground that the finding upon which the award was based was not open because of the conclusive effect of the certificate of a medical board which had been given under s. 19 of the Act and which was tendered in evidence. So far as is relevant to the present case sub-s. (4) of s. 19 provides that the medical board to whom any matter is referred shall, as prescribed, give a certificate as to the condition of the employee and his fitness for employment, specifying, where necessary, the kind of employment for which he is fit, and such other information as the Commissioner requires. Any such certificate given by a medical board is to be conclusive evidence as to the matters so certified. We were told that practical difficulties had occurred in the administration of the Act because different views had been taken by District Court judges as to "what matters are or are not rendered conclusive evidence under s. 19" and, in effect, we were invited to express a view of the section which will have the effect of precluding such differences arising in the future. But we think that in the nature of things it is impossible to be more precise than this Court was in Bavcevic v. The Commonwealth (1957) 98 CLR 296 when it said: "It may be conceded that the applicant is right in the contention that the certificate concludes only so much of the issue as concerns the condition of the applicant at the time of the medical examination and his fitness for employment and whatever is 'specified' as the kind of employment for which he is fit. For such a provision as s. 19 (4) is strictly construed. But, seeing that the purpose is to leave medical questions to the determination of medical men, what is fairly involved in such a determination must come within its conclusive effect" (1957) 98 CLR, at p 302 In some cases the cause of an existing condition may be said to be "fairly involved" in a determination of the existence of the condition itself. For instance, to say that a person is suffering from lead-poisoning is tantamount to saying that he is suffering from a condition produced by lengthy exposure to lead absorption (cf. Smith v. Mann (1932) 47 CLR 426, at p 451) In other cases "the state of the patient and the cause of that state are two independent matters" and a certificate as to the cause of the existing state would not be conclusive. The range of medical questions which may be said to be involved in a determination as to the condition of an applicant for compensation, his fitness for employment and the kind of employment for which he is fit is so extensive and varied that it is impossible to state other than in the general way the matters upon which a certificate given by a medical board is conclusive. But one thing may be said with certainty. It is not open to the Commissioner by seeking information on non-medical questions to obtain by means of a certificate evidence which will be conclusive as to those questions. (at p509)

2. In the present case it appears that between January 1951 and October 1961 the respondent was paid compensation during four periods in respect of incapacity caused by injuries to his back. The incapacity was said to have been produced by the aggravation of a pre-existing condition of thoraco lumbar spondylosis. But on the strength of a certificate of a medical board the Commissioner, in October 1961, determind that the effects of the aggravation of the respondent's pre-existing condition resulting from his physical injuries had ceased to exist and that, thereupon, he ceased to be entitled to further benefit under the Act. An appeal from this determination to a District Court was allowed and the order from which this appeal is now brought was then made. (at p509)

3. It was not in dispute upon the hearing of the appeal that the physical aggravation of the respondent's pre-existing condition had ceased as found by the Commissioner. What was asserted, however, was that he was suffering from a psychological disturbance - what was referred to as "attitudinal pathosis" - which rendered him unfit for work. After discussing the medical evidence in the case the learned District Court Judge said: "Bearing all these things in mind, looking at him and assessing him with all the care of which I am capable, I feel, on the balance of the probabilities, it has been established to my satisfaction that the appellant is in fact suffering from this rather unusual and rare pathological condition that Dr. Ellard spoke of. I am prepared to find, and do find, that it was more probable than not that this condition was induced by the episodes of trauma which the appellant undoubtedly sustained." The "rare pathological condition" of which his Honour spoke was a condition: "which results in him believing, and genuinely believing, that he has these pains and aches, trials and tribulations, and Dr. Ellard in his view says that they are for all practical purposes and broadly speaking just as incapacitating as a real physical and orthopaedic injury to the appellant's back". His Honour was, however, not satisfied that the respondent was totally and permanently incapacitated; indeed, he thought that he was bound and constrained by the certificate to hold that he was not. But he was of the opinion that he was partially incapacitated to a very great degree. (at p509)

4. Such a finding would have been sufficient to entitle the respondent to an award but the question is whether in view of the terms of the certificate of the medical board his Honour was at liberty to make it. The certificate, which set out the questions submitted to the board, was in the following form:

"CERTIFICATE UNDER SECTION 19.

We F. H. McC. Callow, C. Radeski &W. Stening, have

this day examined Consiglio Mifsud of Sydney whose signature appears in the margin of this Form, a claimant for compensation under the above-named Act, and we certify as follows: -

(a) The claimant is suffering from . . . . (b) The claimant is fit to undertake employment in such occupations as . . .

Signature of Claimant Mifsud C.

The Commissioner has also required us to certify

* Answers should be given on the reverse side of form - see over.

(1) From what disabilities does the employee suffer? (2) To what extent are these due to: - (a) accidents on 25.1.1951; 14.4.1958; 7.10.1958 and 25.11.1958; (b) natural progression of an underlying pre-existing condition; (c) the employee's refusal or inability to face up to his problems and brooding;

(d) some other factor and, if so, what is that factor? (3) If the accidents referred to in (2) (a) aggravated an underlying condition, has that aggravation now ceased and would any further recurrence be due to other factors?

(4) Is any and what form of treatment indicated? (5) Is the employee's incapacity total and permanent? (6) If the employee is not totally and permanently incapacitated for work due to causation or aggravation of disabilities by accidents referred to in (2) (a) what types of work is he able to perform. In particular, is he fit to perform work as a plumber?

(7) If (6) is difficult to answer, to assist the Commissioner in assessing the types of work for which the employee is fitted, a report in some detail would be appreciated as to the limitations imposed by the employee's disabilities, due solely to the accidents referred to in (2) (a), upon: - (a) his mobility; (b) the physical use of his body and its members; (c) the use of his mind and mental powers. If not sufficiently brought out by the foregoing advice as to the types of physical effort the employee should avoid, e.g., undue bending, heavy lifting, etc., would also be appreciated.

and we certify as follows: -

1. The employee suffers from the following disabilities: (a) Thoraco lumbar spondylosis of very slight degree; (b) Anxiety neurosis of slight degree; (c) Conscious exaggeration of symptoms of large degree.

2. (a) The aggravation of the pre-existing spondylosis caused by the accidents of 25.1.51., 14.4.58. and 7.10.58. and 25.11.58 has now ceased.

(b) There has been a slight progression of the underlying pre-existing condition of spondylosis.

(c) The greater part of his present disability is due to his refusal or inability to face up to his problems and brooding.

(d) There is no other factor.

3. Aggravation has now ceased and any further recurrence would be due to other factors.

4. No treatment is indicated. 5. The employee's incapacity is not total or permanent. 6. From the physical point of view he is fit for normal forms of work excluding heavy lifting.

7. There is no physical limitation on his mobility or the physical use of his body or its members. The symptoms of anxiety, he states in his own history, arose five months after the incident in 1958, and hence would not be compensable."

Answer 1(c) did not, in our view, specify or describe any existing disability; further it was not an answer to any inquiry directed to the board by the Commissioner. Nevertheless answers 1 (a) and 1(b) purport to specify two existing disabilities and, prima facie, the answers must be taken to specify that these are the only disabilities from which the respondent was suffering at the time of his examination. But upon reading the certificate as a whole it is apparent that what the medical board was specifying in its certificate were what they regarded as physical disabilities. This is apparent from the answers to questions 6 and 7. The first of these certifies that "from the physical point of view he is fit for normal forms of work excluding heavy lifting", and the second, that "there is no physical limitation on his mobility or the physical use of his body or its members". But, in our view, the answer to question 2 (c) assumes the possibility of the existence in the respondent of a disability which is not a physical disability. It certifies that "the greater part of his present disability is due to his refusal or inability to face up to his problems and brooding". It therefore admits the possibility of an existing disability of the kind deposed to by Dr. Ellard and that such disability may be due either to his refusal or inability to face up to his problems. That being so, it is impossible to say that the certificate concluded the issue upon which the respondent succeeded in the District Court. We should add that the appellant did not in the District Court rely upon the final paragraph of the certificate but it changed its attitude in this Court. However, that paragraph was clearly not conclusive as to the matters stated in it even if, contrary to our view as at present advised, it could be said to constitute admissible evidence in the case. (at p512)

5. For these reasons the appeal should, in our opinion, be dismissed. (at p512)

WINDEYER J. I agree that this appeal should be dismissed. I wish only to make some remarks for myself concerning the effect, as I see it, of s. 19 of the Act. (at p512)

2. A certificate of a medical board as to the condition of an employee, given pursuant to that section must, it seems to me, relate to his condition as affected by the injury for which he claims or is receiving compensation, its consequences, physical and mental, for him and their bearing upon his capacity for work. The policy of the Act and the purpose for which a certificate is to be given impose some restriction upon what could otherwise be a very far-reaching inquiry as to his "condition". I do not think that in certifying as to his condition the board is obliged to report exhaustively upon aspects of his physical, nervous and mental state which do not arise or could not arise from the injury. For example, if the purpose of the reference to a board was to ascertain the consequences of some traumatic injury to a limb, one would not expect the board's certificate to deal with the state of the man's lungs, his eyesight, his hearing or his digestion, unless their condition was, or was said to be, or could be supposed to be, in some way affected by the injury. (at p512)

3. It is the man's condition at the time of the examination of which the certificate speaks. And it is only as to this that it is conclusive. A statement of his condition at that time may however involve stating, as a medical fact, that it will inevitably not improve or will worsen. Moreover, the ordinary presumption of continuance may give a statement of the man's condition at the time of the examination an evidentiary value as to his condition at a later date without it being conclusive. If in stating what his condition and fitness for employment were at the time of the examination the board incorporates some prediction of the future, not as an inevitable medical fact but as a conclusion of probability, that in most cases could be only an opinion and conclusive only of the fact that members of the board held that opinion. (at p513)

4. Further, it seems to me that the suggested separation of condition from cause is often imprecise and in some cases may be a matter more of words than reality; and the same can sometimes be said of the distinction between a pathological state and its symptoms. This is especially so in the case of psychological disabilities arising from, or accompanying, physical hurts. A certificate that describes a man's condition in medical terms must often, perhaps more often than not, by its very nature convey information as to its cause in an aetiological sense. Lead poisoning is the familiar example since the decision in Smith v. Mann (1932) 47 CLR 426 Anthrax and malaria are other obvious examples. And a bare statement of physical consequences of a traumatic injury would often give only an incomplete picture, from a medical point of view, of a man's condition. For example, a description of a condition in terms of some form of paralysis might be incomplete if it did not state that it was the consequence of an injury to a nerve, or whatever else was its cause in a medical sense. But how the wound which injured the nerve was itself caused would not be a matter for the board. (at p513)

5. I do not think that it is legitimate for the Commissioner to seek, nor should a board give, any information beyond that which a medical examination, conducted with a sufficient knowledge of the man's history, can reveal. The Commissioner apparently takes the view that, because the board is obliged to "give a certificate as to the condition of the employee and his fitness for employment specifying where necessary the kind of employment for which he is fit, and such other information as the Commissioner requires", he can require the board to "specify", as "information" he requires, the extent to which an employee's condition was caused by an accident and that its answer then concludes the question. I cannot agree that this is so. If the nature of an injury by accident be put before a board, it might be required to state whether the condition revealed by examination was consistent with it having been caused by that injury, but beyond that I do not think it could properly be asked to go. (at p514)

6. It seems to me that the Commissioner's requirements in this case were not warranted by the Act; and therefore that although the board answered all the questions asked, its answers did not all become conclusive. The Commissioner referred the matter to the board by a document the most relevant part of which reads as follows:

"Pursuant to Regulation 7 of the Employees' Compensation Regulations, I hereby appoint a Medical Board . . .to examine Mr. Consiglio Mifsud, Department of the Navy, Garden Island, and give a certificate in Form D as to his present condition and in particular: -

(1) From what disabilities does the employee suffer? (2) To what extent are these due to: - (a) accidents on 25.1.1951; 14.4.1958; 7.10.1958 and 25.11.1958; (b) natural progression of an underlying pre-existing condition; (c) the employee's refusal or inability to face up to his problems and brooding; (d) some other factor and, if so, what is that factor." (at p514)

7. The board, with these requirements before it, signed a document which included the following:

"We certify as follows: -

1. The employee suffers from the following disabilities: (a) Thoraco lumbar spondylosis of very slight degree; (b) Anxiety neurosis of slight degree; (c) Conscious exaggeration of symptoms of large degree.

2. (a) The aggravation of the pre-existing spondylosis caused by the accident of 25.1.51, 14.4.58 and 7.10.58 and 25.11.58 has now ceased.

(b) There has been a slight progression of the underlying pre-existing condition of spondylosis.

(c) The greater part of his present disability is due to his refusal or inability to face up to his problems and brooding." (at p514)

8. I assume that, from some previous acquaintance with the case, or from some detailed information about the four accidents mentioned supplied to them, the members of the board felt able to express the view stated in par. 2 (a) of their certificate and to refer in par. 2 (b) to an "underlying pre-existing condition". Yet at least one member of the board, Doctor Radeski, only saw the man once. That was when he examined him for the purpose of giving the certificate. He was called as a witness for the respondent Commissioner. I have much doubt how far it is permissible to examine and cross-examine a member of a board with a view to obtaining either confirmation or qualification of what the certificate in terms states. (at p515)

9. The statutory provision that a certificate is to be conclusive makes it imperative that its effect be kept within narrow bounds and that it be strictly construed. The purpose of the statutory provision is to make medical men the final judges of medical facts. But that does not, it seems to me, mean that their opinion can be taken and held to be final as to whether a man's medical condition was caused by an injury by accident on a particular day. (at p515)

10. As to the statement in par. 2 (c) of the certificate: There is an obvious distinction between a "refusal" to face up to problems and an "inability" to do so. The expression may, in any event, lack precision as a matter of medical terminology. But that is a consequence of the way in which the question was asked. It is not surprising that a question so framed produced an answer that, even if it were to be regarded as conclusive evidence of the matters certified, means no more than that the greater part of the appellant's then present disability was due either to a refusal to face up to his problems or to an inability to do so. Yet whether it was due to the one or to the other is by no means unimportant. The ambiguity is not diminished by the reference to "conscious exaggeration of symptoms". "Conscious exaggeration" may mean an intentional exaggeration amounting to fabrication, to malingering in a gross form. Of that, I would agree, experienced medical men are often the most competent judges. It is a matter on which the opinion of a medical witness may well be invaluable. But I am not satisfied that the certificate of a board can be conclusive that a claim is fraudulently based. A certificate shewing that in the opinion of the board it was so might be admissible. But it would be conclusive only that the board held that opinion - an opinion the correctness of which could in curial proceedings be contested on the basis of other medical evidence called. A certificate that an examination shewed that the man was not in fact suffering from an ailment or disability from which he said he was would, I think, be conclusive. But to say that he did not believe he was suffering as he said he was, that is to say that his symptoms were feigned, in whole or in part, is a different proposition. The meaning and effect of the present certificate is debatable. The inappropriate form of the questions submitted to the board led to this. (at p516)

11. In the circumstances, it was open to the learned judge in the District Court to find as he did notwithstanding the certificate. The appeal from his decision should be dismissed. (at p516)

Orders

Appeal dismissed with costs.