Goudie, J.K. v Department of Defence

[1993] FCA 581

JOHN KENNETH GOUDIE v. DEPARTMENT OF DEFENCE
No. NG570 of 1992
FED No. 581
Number of pages - 5
Administrative Appeals Tribunal

COURT

IN THE FEDERAL COURT OF AUSTRALIA

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

CATCHWORDS

Administrative Appeals Tribunal - appeal in employee's compensation case - no medical explanation for complaints - Musumeci case distinguished - Tribunal entitled to base its conclusion on a view of the medical evidence.

Compensation (Commonwealth Government Employees) Act 1971, ss. 27 and 29

Re Musumeci and Department of Health (NT) (1990) 19 ALD 797 Australian Postal Corporation v. Lucas (1991) 33 FCR 101

HEARING

SYDNEY, 25 August 1993

#DATE 27:8:1993

Counsel for the Applicant: Mr D.C. Fitzgibbon

Solicitors for the Applicant: Messrs Armstrong and Partners

Counsel for the Respondent: Ms C.E. Adamson

Solicitor for the Respondent: Australian Government

Solicitor

ORDER

The court orders that:

the appeal be dismissed with costs.

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

JUDGE1

BURCHETT J The applicant, who was serving in the Australian Regular Army, operated a keyboard. On 11 May 1987, he lodged a claim for compensation in respect of an alleged repetitive strain injury to his right wrist and arm, which he said was attributable to his use of keyboards over a number of years. He had first sought medical treatment on 10 March 1987. A determination was made by a delegate of the Commissioner for Employees' Compensation, on 30 October 1987, that the applicant "contracted a disease namely tenderness in the muscles of the lateral aspect of the right lower forearm and his employment was a contributing factor to the contraction of that disease". Pursuant to ss. 27 and 29 of the Compensation (Commonwealth Government Employees) Act 1971, he was determined to be entitled to compensation accordingly, as for a deemed personal injury arising out of his employment on 10 March 1987.

1. On 15 August 1989, a decision was made that the Department of Defence ceased to be liable to pay compensation to the applicant on and from 31 May 1989. That decision was affirmed on reconsideration on 30 October 1990, an affirmation which was itself affirmed by the Administrative Appeals Tribunal constituted by a Senior Member, Mr R.N. Watterson, on 16 July 1992. From that decision, the present appeal, limited to questions of law, comes to this Court.

2. An unusual feature of the case should be noticed at the outset. It was not contended on behalf of the applicant before the Tribunal that he continued to be incapacitated by the condition of the muscles on which the original finding of his entitlement to compensation was grounded. Instead, his case was that he now suffered from a complex of conditions centring upon "a neuropathic pain syndrome". This contention was put forward on his behalf by a specialist rheumatologist, Dr Champion. Dr Champion, while conceding that the applicant's complaints were exaggerated, gave the following evidence:
   

"It's clear ... that the epicondylitis and the tenosynovitis are not sufficient explanations for his ongoing pain, the paraesthesia, the impairment of function that he exhibits, and other explanations require to be put forward which must be either psychological or neuropathic in essence."

It is common ground that a psychological case was not relied upon at the hearing. Logically, that left the explanation of a neuropathic disorder as the only one available on the applicant's own case.

1. There was a range of other medical views presented to the Tribunal. Despite what Dr Champion said, some medical witnesses maintained that the applicant continued to suffer from incapacitating epicondylitis and tenosynovitis (or, at least, de Quervain's tenosynovitis, which is a form of the disease involving the extensor and abductor muscles of the thumb). For the respondent, Prof. Ehrlich, a highly qualified specialist in rehabilitation medicine, rejected all these suggestions, and said "the total presentation is not that of organic pathology". He added: "There is no clear indication that barriers to employment exist". Dr J.V. Bertouch, consultant rheumatologist, said: "On the balance of probabilities, his current symptoms do not relate to his previous employment in the Army." He also said: "It should be clearly noted that there is no clinical evidence of any form of tenosynovitis at this time." (Emphasis original.) In view of the suggestion of neuropathology, motor and sensory nerve conduction tests were performed by a Dr J.T. Holland on 11 February 1992, and reported upon as "normal". The applicant was referred to a specialist neurologist, a Dr B.R. Cant, who on 2 May 1991 expressed the opinion "there is no evidence that Mr Goudie now has or has ever had a neurological disorder".

2. These and other medical opinions are set out in some detail in the reasons of the Tribunal. So are a number of matters which plainly raise doubts as to the credibility of the applicant. The Tribunal's reasons then continue:
   

"Conclusion

63. The account which the Applicant gave to the Tribunal of his work and his symptoms is unsatisfactory in many respects. His account was significantly undermined in cross-examination and is contradicted at many points by other evidence before the Tribunal and referred to in the body of this report. Rather than pursue this aspect of the case I have preferred to base my decision on the medical evidence. The preponderance of that evidence supports the conclusion that the Applicant no longer suffers from an injury contributed to by his employment by the Respondent and that any symptoms which the Applicant suffers are no longer contributed to by such work.

64. The medical evidence agrees that any condition from which the Applicant now suffers is able to be diagnosed only on the basis of the Applicant's account of his symptoms. I have formed the view that the Applicant's account of his symptoms is exaggerated. This is a view shared by many of the medical practitioners who have examined him, including Dr Glass and Dr Champion, specialists who provided evidence on his behalf. ... . . .

66. The issue before me summarily is whether the Applicant's employment by the Respondent continues to contribute to the Applicant's present condition.

67. The preponderance of medical evidence on this issue is that the Applicant's present complaints have no organic basis. In February of this year Dr Hicks ascribes the Applicant's symptoms to lateral epicondylitis at the right elbow and probably de Quervain's tenosynovitis at the right wrist. In May 1991, Dr Cant finds no clinical signs of tenosynovitis. In December 1991 Dr Glass records a diagnosis of lateral epicondylitis of the right elbow and de Quervain's tenosynovitis in the right wrist but observes that he would have expected wrist symptoms arising from the Applicant's Army work to have settled. Dr Champion agrees that the explanation for the Applicant's ongoing pain cannot be provided by diagnoses of epicondylitis or de Quervain's tenosynovitis but only by neurological diagnoses. In August 1991 Dr Bertouch finds no clinical evidence of tenosynovitis, peripheral nerve lesion or other organic disease. In August 1991 Dr Ehrlich was of the view that the Applicant did not then suffer from de Quervain's tenosynovitis and could detect no organic pathology on the Applicant's right limb.

68. On the evidence before me the only possible medical link between the Applicant's ongoing symptoms and his Army keyboard work is a neurological one. The only specialist in this area who postulates such a link on the balance of probabilities is Dr Champion. Dr Glass' diagnosis is qualified. Dr Cant expresses the view that the Applicant suffers from no neurological disorder. Dr Cant's opinion was obtained at the request of the Applicant's solicitors but was not tendered until the hearing of this matter. Dr Bertouch and Dr Ehrlich find no clinical evidence of disorder. I have preferred the view which is supported by Dr Cant, Dr Bertouch and Dr Ehrlich. The preponderance of specialist medical opinion is that the Applicant presently suffers from no neurological disorder.

69. I find that the Applicant no longer suffers from an injury arising out of or in the course of his employment by the Respondent. I also find that his employment by the Respondent no longer contributes by way of aggravation to the symptoms which he claims still to suffer. I see no reason to depart from the decision under review in this respect that liability ceased on and from 31 May 1989.

70. For those reasons the decision under review is affirmed."

1. This reasoning of the Tribunal seems to me to be a perfectly straight forward example of an assessment of the factual evidence and the expert opinion evidence upon which a conclusion was required to be reached. On the face of it, no error of law appears. However, a number of points were raised on behalf of the applicant.

2. In the first place, the applicant's counsel criticised the Tribunal's turning away, in para. 63 of its reasons, from pursuit of the aspect of the applicant's credit to a conclusion based on its view of the preponderance of the medical evidence. In my opinion, on a fair reading of the reasons, the course the Tribunal adopted was to make plain its inability to accept the applicant's own evidence, unless the weight of the medical evidence suggested it should be accepted. That meant that the applicant's case could not succeed on the basis which appealed to the Tribunal in Re Musumeci and Department of Health (NT) (1990) 19 ALD 797, as to which see Australian Postal Corporation v. Lucas (1991) 33 FCR 101 at 108. But when the Tribunal then turned to the medical evidence, it found that, far from providing a ground for accepting what it already regarded as a dubious case, the preponderance of that evidence was against the applicant. I can see no error of law in the Tribunal's approaching the task of decision in this way. Indeed, it seems eminently practical and appropriate.

3. The applicant's counsel then endeavoured to argue that error could be seen in the Tribunal's view about the preponderance of the medical evidence. It will be apparent from the citations I have made from that evidence that there was much to sustain the Tribunal's conclusion. In my opinion, once it appeared there was evidence, which the Tribunal could have regarded as preponderating, in support of the view it took, the acceptance of that evidence as actually preponderating was a decision of fact, not open to appeal. There is no reason to think that the Tribunal misdirected itself. Nor, if it is relevant, can the conclusion be regarded as unreasonable.

4. The applicant complained that, in expressing an adverse view about his credit, the Tribunal had been influenced by its reception of an irrelevant document. The document in question was an application for early discharge from the army upon two grounds, neither of which had anything to do with his alleged disabilities. As the document was signed by the applicant at a time when, according to his evidence, he was suffering from repetitive strain syndrome, it seems to me that it was plainly relevant. It tended to suggest that his evidence was untrue or exaggerated, since otherwise the natural thing to have done, when seeking the concession of an early discharge, would have been to have drawn attention to a hardship, of the significant order alleged, in being required to continue to perform his duties. However, the Tribunal, in discussing the document, referred to one of the reasons put forward in it as "not relevant here". On this slim foundation, the applicant erected an argument that the document had been found irrelevant, though after its admission into evidence, and should accordingly not have been taken into account. In my opinion the argument has no substance. The document remained relevant, even if, indeed in a sense because, one of the matters asserted in it was irrelevant to the case.

5. For these reasons the appeal should be dismissed with costs.