Garlick, Maxwell Charles v Australian Telecommunications Commission

[1982] FCA 25

. .

I N THE	FEDERAL	COU?T	OF AUSTI.ALIA	)
1

V I C T O R I A	D I S T R I C T	P E G I S T R Y	1	V.G.	No.	1 8 4 o f 1 9 5 1
1

GENERAL - D I V I S I O N 1

BETWEEN:

MAXWELL CHARLES GARLICK

and

AUSTRALIAN	TELECOMMUNICATIONS
- C0MM:SSION

R e s p o n d e n t

ORDER

JUDGE:	N o r t h r o p J.
DATE OF ORDER:	1 7 March 1982
WHERE MADE:	Melbourne

THE COURT ORDERS t h a t t h e appeal be dismissed.

IN THE FEDERAL COURT OF AUSTRALIA	)
VICTORIA DISTRICT REGISTRY	) V.G. No. 184 of 1981
GENERAL DIVISION	)
BETWEEN:

MAXWELL CHARLES GARLICK

Applicant

and

AUSTRALIAN TELECOMMUNICATIONS

COMMISSION

Respondent

NORTHROP J. REASONS FOR JUDGMENT 17 MARCH 1982

Pursuant to s.44 Administrative - Appeds Tribunal -

Act	-	1975, Maxwell Charles Garlick (hereinafter called "the applicant") appeals to the Federal Court from a decision of
the Administrative Appeals Tribunal (hereinafter called "the
Tribunal") constituted by Mr. J. 0. Ballard (Senior Member).

The appeal is on a question of	law and this	Court is
exercising its original	jurisdiction.	The decision of the
Tribunal was made in an application for review	of	a
determination	of a delegate of the	Commissioner for

Employees' Compensation under the Compensation (Commonwealth

Government Employees) Act 1971. The determination of the

delegate was dated 4 February 1980 and was in the matter of a claim by the applicant for compensation in respect of a heart

attack. The determination was as follows:

. _-_- DETERMINATION

l . Specialist medical opinion obtained

indicates that the hypertension, coronary artery disease, aortic valve disease and

angina suffered	by the	said	Maxwell
Charles Garlick	is	due to the	natural

progression of some pre-existing or

underlying condition.

2. NOW THEREFORE, in pursuance of the

provisions of the Compensation

(Commonwealth Government Employees) Act

1971, I hereby determine:-

(a) the	said Maxwell Charles Garlick did not sustain personal injury arising
out of or in the course of his
employment:
(b)	the said Maxwell Charles Garlick did not suffer the contraction of a
disease, or the aggravation,
acceleration or recurrence of a
disease, to which his employment was a contributing factor;

(c) the claim of the said Maxwell

Charles Garlick of 16 August 1978 is

therefore disallowed."

The decision of the Tribunal is dated 1 October

1981 and is as follows:

"The Tribunal decides:

(a) to set aside the determination in this

matter of 14th [sic] February 1980: and
the same is so set aside;

(b) to remit the matter to the Commissioner

with the directions that:

applicant the suffered an

aggravation or acceleration of a
disease to which his employment
was a contributing factor on 19th

July 1978:

he was incapacitated thereby until

15th August 1978;

-

the applicant's subsequent

incapacity for work was not the

result of the aggravation or

acceleration on 19th July 1978 but

was due to the natural progression

of his disease;

he is entitled to compenstion for medical expenses pursuant to s.37

for treatment of the disease

during	the period of incapacity
between 19th	July 1978 and 15th
August 1978	and to compensation

for total incapacity for this

period;

I

and the same	is so remitted with those
directions;

!

(c) to order the respondent to pay the

applicant's costs in accordance with the appropriate Scale in the County Court of

Victoria; in the absence of agreement

costs to be taxed by the Registrar or

Deputy Registrar; and the same i s so

ordered.

The questions of law raised on the appeal and as

formulated during the hearing of the appeal are:

!

-1. Whether it was open to the Tribunal to

find that the Applicant's incapacity for

work subsequent to the 15th August, 1978

was not contributed to by the incident of :

the 19th July, 1978, but was due to the

natural progression of the disease:  i

2.    Whether the Tribunal properly construed the provisions of the Compensation (Commonwealth Government Employees) Act

1971, and in particular, Sections 5(11),

27. 29 and 31."

The final form of the orders sought by the

applicant are:

"1. That the decision of the Administrative

Appeals Tribunal given on the 1st day of

October, 1981, be varied as follows:

That paragraphs (b)(ii)(iii) and (iv) of the decision be set aside, and the following paragraphs be substituted

for them:

(b) (ii) the Applicant's subsequent

incapacity for work was the result of the aggravation or acceleration on 19th July,

1978;

(b)(iii)	the Applicant is accordingly entitled to compensation for
total incapacity for all
periods of incapacity for
work on and after 19th July,
1978 and to medical expenses
pursuant to Section 37 for treatment of the disease."

"2.	Alternatively:
That paragraph (b)(iii) and	(iv) of the order

of	the	Administrative Appeals Tribunal made
1st October, 1981	be set aside	and that the

case be remitted to the said Tribunal to

decide the issue of the Applicant's continuing incapacity for work after 15th August, 1978 in accordance with the following directions:

(1) The Tribunal is directed to determine the

following questions:

(a) Did the Applicant suffer ongo i ng

angina following the inc	ident	on
19th July, 1978?

(b) Was any ongoing angina related to

the aggravation or acceleration of a disease found to have occurred on 19th July, 19781

(c)	If yes to (a), then did the ongoing angina contribute to the Applicant's
incapacity for work since 15th
August, 1978, and does it continue
to do so?

( 2 ) If questions l(a), ( b ) and (c) are

answered in the affirmative then the said

Tribunal is directed to determine that

the Applicant has suffered an aggravation
or acceleration of a disease to which his

employment was a contributing factor and	.
that the said aggravation or acceleration
of	the disease has contributed to the

Applicant's continuing incapacity for

work after 15th August, 1978 in

accordance with Section 5(11) of the

Compensation (Commonwealth Government entitled to compensation accordingly."

On the appeal to this Court, the Court may make

such order as it thinks appropriate by reason of its decision

and without affecting the gexerality thereof it may affirm or

set aside the decision of the Tribunal and may remit the case

to be decided again, either with or without the hearing of

further evidence, by the Tribunal in accordance with the

directions of the Court, s . 4 4 ( 4 ) and (5) Administrative

Appeals Tribunal Act.

.

The first question of law is based on the

proposition that on the evidence no tribunal properly
directing itself as to the principles of law to be applied

could come to any conclusion other than that the liability to

pay compensation under the Compensation (Commonweal-t&

Government Employees- - (hereinafter called "the Act") had

-

been established, namely that personal injury arising out of or in the course of the employment of the applicant by the Australian Telecommunications Commission (hereinafter called "the respondent") was caused to the applicant, thereby

imposing a liability upon the respondent to pay compensation in respect of that injury in accordance with s.27 of the Act. The second question of law is based on the proposition that the Tribunal did not direct itself to the principles of law t o be applied and in particular did not consider or apply the

provisions of sections 5(11), 2 7 , 2 9 and 31 of the Act.

Section 2 7 of the Act imposes upon the respondent a

liability to pay compensation to the applicant if personal injury arising out of or in the course of his employment by

the respondent was caused to him. Under s.5 of the Act

"disease" is defined as including "any physical or mental

ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development", but "injury" is defined to exclude "a disease or aggravation, acceleration or

recurrence of a disease". Hereafter, the word "aggravation"

is used to comprehend the phrase "aggravation, acceleration

or recurrence". Section 29 provides for compensation in

respect of incapacity through disease. For present purposes,

the relevant provisions of	s.29. s.5(11)	and s.31 are set
out:

"29.(1) Where -

(a) an employee ... suffers an aggravation

... of a disease; and

(b) any employment of the employee ... was a

contributing factor ...	tothe aggravation
. ..	whether or not the disease was
contracted or the	aggravation ... was

suffered in the course of that

employment,

the succeeding provisions	of this section have
effect.

(2) If -

...

(e) the total or partial incapacity for work of the employee,

results ... from the aggravation ... of the

disease, o r the employee obtained medical

treatment in relation to ... the aggravation	... of the disease ... then, for the purposes
of this Act, unless the contrary intention
appears -
(f) ... the aggravation . . . shall be deemed

to be a personal injury to the employee

arising out of the employment of the

employee ... ; and

(g) . .. the date of the commencement of the

incapacity or the date on which the
medical treatment was first obtained,

whichever is che earlier, shail be deemed

to be the date of the inJury."

"5.(11)	For the purposes of this Act -
(a) the	... incapacity ... of an employee ...

an aggravation .. . of a disease suffered	shall be taken to have resulted ... from
by the employee if ... the agaravation
... contributed ... to the ...
incapacity.. ."

"31.(4)	An incapacity for work ... by, an
employee shall	be taken for the purposes of
this Act to have been contributed to	... by an
aggravation ... of a disease, if, but for ...	that aggravation ... -
(a) the incapcity ... would not have

occurred;

(b) the incapacity would have commenced ...

at a significantly later time; or

(c) the extent of the incapcity would have

been significantly less.

( 5 ) This section shall not be construed

as limiting by implication the generality of

the provisions of section	29."
In the review before the Tribunal,	the applicant

based his case on two grounds, namely that his employment by

the respondent contributed to his underlying disease, namely

hypertension, coronary artery disease and aortic valve
disease, resulting	in his total incapacity; and secondly,
that an event or episo6e which	occurred in the course of his

employment by the respondent, namely an attack of angina on 19 July 1978, resulted in his total incapacity. The Tribunal

rejected the first of those grounds. The applicant does not

challenge that part of the decision by the Tribunal. The

questions of law relate to the second ground only.

At the hearing before the Tribunal a number of

witnesses were called. Among the witnesses called by the

applicant were Dr. Sewell, the applicant's general

practitioner, who had treated him since 1955; Dr. Stock, a

cardiologist, who saw the applicant on 11 September 1981; Professor McLean, a physician, who treated the applicant in

the Frankston Hospital Coronary Care Unit after his admission

on 19 July 1978; and D r . McInnes, the Commonwealth Medical

Officer who examined the applicant In October 1979 and

recommended his retirement.	The respondent called Sir John
Frew, a consultant physician, who examined the applicant	on
15 September 1981 and Dr. Cahill, the medical referee	who had
examined the applicant for the purposes	of s.60 of the Act.

In reasons for decision the Tribunal stated a

number of facts which it considered not to be in issue. With the exception of one of those facts, the applicant does not

challenge the	statement of those facts and they are set out
in full:

"1. the applicant had high blood pressure

since 1970 and was on medication for

this:  he also had some aortic stenosis

and incompetence;

2. as a relatively senior Telecom offjcer

the applicant did have a certain amount
of stress placed on him in the course of

his employment;

3 . on 19th July 1978 he suffered a heart

attsck; some time before that heart

attack he had lifted and replaced a manhole cover: immediately before the

attack he had walked 500 yards from his car which involved ascending a flight of steps and an incline;

4 .    the heart attack was an acute attack of angina and did not involve infarction of the heart muscle;

5. the applicant was absent after the heart

attack for a little over three weeks: thereafter he worked intermittently until 30th October 1978; he then took three

months' leave, followed by war service

leave from 1st February to 30th March

1979 and worked intermittently from 2nd

April to 12th June 1979;

6. on 5th September 1979 he submitted a

certificate stating that he could not

return to work;

l . the applicant also has melanoma for which he is receiving treatment."

For the purposes of this appeal, the relevant evidence of Dr.

Stock can be summarized. The event or episode of 19 July

1978  suggests the applicant suffered an occlusion due to an

embolus rather than a thrombosis in a coronary vessel. It could cause minor damage, no damage or fair damage. but it did further impair the circulation of the heart in that the

previous vascular bed was not thereafter as good as it was	j
before,	since, following the episode, the applicant suffered

anginal symptoms which disbled	him and therefore from	the
progression of the condition it is likely that there was	an	I

impairment which was a situation of an aortic valve creating	i
embolism which was not confined	to the coronary vessel but

also to the cerebrdl vascular system causing giddy turns,

there oeing a progression of the condition with impairment of

i

perfusion of both coronary vessels and cerebral vessels, and the applicant's condition is worse than it was before. The

applicant is not fit for work because of his sclerosed aortic

valve which is incompetent. He has impaired coronary

perfusion and has hypertension. In answer to a specific

question from the Tribunal Dr. Stock said:

"Once the condition of his aortic valve

progresses where he suffers embolic pnenonoma

which creates either coronary occlusion or

cerebral vascular insufficiency, he is not fit
for work."

The evidence of Professor McLean can be summarized. The applicant developed angina while working in the tour§? of

.

his employment. It was not typical angina because the pain

!

did not subside on ceasing effort. He was admitLed to

hospital. Tests disclosed no evidence of permanent damage to

the heart and muscle, but there was a question as to the

state of his coronary arteries. Professor McLean ranked as of low probability the theory of Dr. Stock, but argued that

the underlying disease resulted in the applicant's total

incapacity for work. He was asked by the Tribunal:

"Professor, do you think this man would be in the condition he is in if he had not ran up those steps and ran up that slope?"

. - 12 -

Professor McLean said:

8

"That is an extremely difficult question to

answer. I think the best answer I can give

.- you is that had the events of that day not

occurred, there may well have been a

considerable postponement of the development

of relevant symptoms, but in the nature of

things, things have	to have a beginning."
The evidence of Sir John Frew can	be summarized.

The applicant suffered an episode of myocardia1 ischemia with

infarction at work on 19 July 1978. He still suffers from

Occasional angina requiring the use of Anginine.	He has some
aortic stenosis and incompetence.	He is receiving treatment
for vertigo. He is permanently incapacitated for work.	The
undeilying cardiac disease was not caused	or siqnificanCly
aggravated by the events of	19 July 1978. At the hearing the

Tribunal	quoted	to Sir John Frew the evidence given by
Professor McLean relating	to the activity	of the applicant

precipitating the angina, and the foliowing question by the

Tribunal and answer by Sir John Frew are set out:

"But we have a picture of a man who the sick

leave records show was not in the habit of

taking days off. He did have a busy job. And

yet suddenly, after an incident of the angina where there was no death of heart muscles he changes from being an active useful man, the worker for Telecom, to a person who is not able to cope. What is the explanation? And I do not really think it is function or anything like that. --- No, sir, no, I think this is a

very reasonable sort of thought. I think

there are people whom we do meet who

essentially are very healthy busy people and

then they come up against something which

pulls them up in their stride and it really does kick the feet from under them. This is a

reaction to a particular illness. A fairly

simple example of this, for instance, is

someone who has had an operation for cancer or

somebody who has had a severe attack of

vertigo - it does in certain people leave a

very great mark, they are not able to adapt
themselves. I think we find this occurs in
people who basically are essentially healthy
and have not been used to illness. I do not
know whether I have been helpful to you or not

but it just does occur that way sometimes."

It should be noted also that none of the absences

from work by the applicant from the time of returning to work

after the attack of angina on 19 July 1978, namely 15 August

1978, and the time his employment ceased in September 1979

were stated to be a result of angina or heart condition.

The following extract is taken from the reasons for

decision by the Tribunal:

"I have carefully considered the medical evidence on either side; I record that I am particularly assisted by the evidence of Sir

John	Frew who frequently gives evidence for
applicants and who 1 find to be conspicuously	fair on both sides. It is also my experience
that much weight needs to be given to the evidence of the treating specialist and the evidence of Professor McLean should, in my
opinion, be sccorded the same weight. I could
not accept the evidence of the applicant's
general practitioner in preference to that of these specialists, even supported as it is by Dr. Stock. I find the facts in accordance
with the evidence of Sir John Frew and
Professor McLean.
I make the following findings of fact:
(a) that the stress of the applicant's work before the heart attack was not a contributing factor to the aggravation

or acceleration of his underlying heart

disease:

. (b) that there was no permanent damage done

to the heart muscle by the attack of angina on 19th July 1978 which resulted

in the applicant's admission to

Frankston Hospital.

There is one point of difference between the

evidence of S i r John Frew and that of

Professor McLean. Professor McLean thought that climbing up the slope and steps was a relevant factor in bringing on the angina; he

put it that had the events of that day not

occurred there might have been a considerable

postponement, 'but all things had to have a

beginning'. On the other hand, Sir John Frew

d i d not believe that the angina which came on

was precipitated by the effort. He thought it

was an ongoing thing which became apparent

when the applicant exerted himself. ne stressed that in his view the angina 'became

manifest' In this way:	it was	not
'precipitated'.

As between these two witnesses I think it proper to give the benefit of the doubt to the

applicant on the grounds that his claim, in

this respect, is supported by the treating

physician who saw the applicant at a point of

time so much closer to the event.

On the facts of this case it is clear that the

applicant had a lonq standing disease of his

heart and his aorta. While I accept that the

exertion immediately before the onset of

angina on 19th July 1978 precipitated that

onset, there was, on the evidence of the

doctors whose evidence has been accepted,

which also accords with the evidence of Dr.

Cahill, no permanent damage done to the

applicant by this particular incident.

Accordingly any subsequent incauacity for work cannot be said to result from that attack.

The applicant is, therefore, entitled to

compensation for his nedical expenses and for incapacity up to when he returned to work on 15th August 1978, but not for subsequent

periods of incapacity.''

P

In the reasons for decision the Tribunal did not

refer to any of the provisions of the Act.

The second question of law is considered first.

Counsel for the applicant referred to the reasons for

decision and the absence of any reference to s.5, s .27 , s.29

or s.31 of the Act, and paragraph (b)(iii) of the decision

and the direction that the subsequent incapacity was due to the natural progression of the underlying disease. She referred also to the evidence of Dr. Stock and the absence of

any finding under s.31 of the Act.	She submitted that in all
the circumstances the Court should not	be satisfied that the

Tribunal had considered those sections of the Act, or

alternatively if it had they had not been construed or

applied correctly.

I reject those contentions. The Tribunal k-as

constituted by a senior member who was very experienced	in
Commonwealth compensation matters. It i s not necessary that

the Tribunal give a treatise on the provisions of the Act in every decision on a review from a determination of the

Commissioner for employees' compensation. In paragraph

(b)(i) of the decision the reference to employment being a contributing factor illustrates that the Tribunal was giving effect to s.5(11) of the Act and spplying that section as

properly construed that where that aggravation contrimted to

the incapacity, that incapacity shall be taken to have

resulted from an aggravation of a disease. A perusal of the

transcript of the proceedings before the Tribunal discloses
that no specific questions were asked of the medical

witnesses by the solicitor for the applicant. in an at.tempt. to

found a claim based on s.31(4) of the Act. The Tribunal

asked specific questions of Professor McLean and Sir John

Prew which have been set out ahove, and which, in my opinion,

were directed to a possible application of s.31(4). There

was no evidence before the Tribunal to justify the

application of that sub-section. In substance, the

contention on behalf of the applicant is that since there vas

a finding that the aggravation of the disease on 19 July 1978

contributed to the incapacity for the period 19 July 1978 to

15 August 1978, then that aggravation must have contributed

to the incapacity after	5 September 1979.	The evidence of
Dr. Stock does not support that	contention.	Part of the case

presented before the Tribunal was that	the underlying disease
from which the applicant was suffering was contributed	to by

his employment.	It was necessary for the Tribunal to give
the direction contained	in paragraph (b)(iii) of the decision

to negative that contention. Perhaps the paragraph is

inelegantly phrased, but its meaning is clear. Any

incapacity resulting from the aggravation occurring on 19

July 1978 had ceased and thereafter the incapacity was not contributed to by that aggravation but was due solely to the natural progression of the disease or due to other conditicns

. - 1 7 -

n o t	r e l a t e d	t h e r e t o	a n d	n o t	r e l a t e d	t o	h i s employment.	None
o f	t h e	m e d i c a l	e v i d e n c e ,	i n	my	o p i n i o n ,	s u p p o r t s	t h e

c o n t e n t i o n p u t b y c o u n s e l f o r t h e a p p l i c a n t , a n d t h e T r i b u n a l

p r o p e r l y c o n s i d e r e d s . 5 ( 1 1 ) , s . 2 7 , s . 2 9 a n d s . 3 1 of t h e Act.

I n c o n s i d e r a t i o n of t h e f i r s t ques t ion , a p e r u s a l

of t h e e v i d e n c e l e d b e f o r e t h e T r i b u n a l m a k e s i t c lear t h a t

it was	open	t o	t h e	T r i b u n a l	t o	f i n d	t h a t	t h e	a p p l i c a n t ' s
i n c a p a c i t y	f o r	work	s u b s e q u e n t	t o	15	Augus t	1978	was	no t

c o n t r i b u t e d t o by t h e i n c i d e n t of 1 9 J u l y 1 9 7 8 , b u t w a s due

t o t h e n a t u r a l p r o g r e s s i o n of t h e d i s e a s e . A r e f e r e n c e t o

t h e e v i d e n c e se t o u t a b o v e m a k e s t h a t c lear a n d t h e T r i b u n a l

i n d i c a t e d w h i c h m e d i c a l o p i n i o n h e a c c e p t e d . Likewise, t h e

T r i b u n a l s t a t e d t h e b a s i s f o r h i s a c c e p t i n g ce r t a in e v i d e n c e

i n f a v o u r of o t h e r e v i d e n c e . Even on t h e e v i d e n c e of t h e

o t h e r m e d i c a l wi tnesses , it is d i f f i c u l t t o see how t h e

T r i b u n a l c o u l d h a v e come t o z n y o t h e r d e c i s i o n .

A c c o r d i n g l y , t h e a p p e a l is d i s m i s s e d .