Henry, W.L. v Australian & Overseas Telecommunications Corp
[1993] FCA 201
•08 APRIL 1993
WILLIAM LESLIE HENRY v. AUSTRALIAN AND OVERSEAS TELECOMMUNICATIONS
CORPORATION
No. NG580 of 1992
FED No. 201
Number of pages - 10
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Beazley J(1)
CATCHWORDS
Administrative law - liability of employer to pay compensation - whether employment a contributing factor to the contraction, aggravation or acceleration of the disease - whether Tribunal failed to consider a submission worthy of serious consideration - whether Tribunal failed to provide sufficient reasons for its findings - whether possible to determine from Tribunal's reasons if correct test in respect of "disease" applied pursuant to s. 29 of the Compensation (Commonwealth Government Employees) Act
Administrative Appeals Tribunal Act 1975 ss.43, 44(1)
Commonwealth Employees' Rehabilitation And Compensation Act 1988
Compensation (Commonwealth Government Employees) Act 1971 ss.5, 27(1), 29
Dennis Willcox Pty. Limited v. Federal Commissioner of Taxation 79 ALR 268
Delahunty v. Commonwealth (1981) 53 FLR 9
Dornan and Ors. v. Riordan (1990) 24 FCR 564
Australian Telecommunications Commission v. Barker (1990) 12 AAR 490
Telescourt v. The Commonwealth (1991) 29 FCR 227
Bisley Investment Corporation and Anor. v. Australian Broadcasting Tribunal and Anor. (1982) 40 ALR 233.
Commonwealth of Australia v. Pharmacy Guild of Australia and Anor. (1989) 91 ALR 65
HEARING
SYDNEY, 5 March 1993
#DATE 8:4:1993
Counsel for the Applicant: G.M. Elliott
Solicitors for the Applicant: Carroll and O'Dea
Counsel for the Respondent: G.M. Watson
Solicitors for the Respondent: Sparke Helmore and Withycombe
ORDER
THE COURT ORDERS THAT:
1. The decision under review be set aside.
2. The applicant's application for reconsideration be remitted for determination according to law.
3. The respondent pay the applicant's costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
BEAZLEY J This is an appeal from a decision of the Administrative Appeals Tribunal pursuant to s.44(1) of the Administrative Appeals Tribunal Act 1975, (the Act) in which the Tribunal reviewed a decision of the respondent, dated 30 August 1990, which affirmed an earlier decision of the 27 April 1990 denying liability to pay compensation to the applicant pursuant to the Commonwealth Employees' Rehabilitation and Compensation Act 1988.
The applicant had commenced employment with the then Post Master General's Department in 1970, first as a linesman, laying cable, digging trenches, doing pipe and pit work and some aerial work. In 1977 he became an acting line serviceman and in 1979 was promoted to the position of line serviceman. His duties at that time involved a greater degree of supervisory work but he still performed heavy lifting and bending work. Prior to joining the Post Master General's Department, the applicant had performed general farm and shearing work. At the time of commencing his employment with the respondent, he was in good health and had no history of back trouble.
On 24 July 1972, the applicant sustained an injury to his back when, whilst standing on the edge of a manhole, he fell backwards and hit his back in the region of the lumbar spine on a steel cable rest. The manhole was about 4 feet deep and the applicant landed on his buttocks at the bottom of the hole. He felt severe general pain in his back. He was certified unfit for work for 2 days by a Commonwealth Medical Officer, being diagnosed as suffering from "bruising over the right sacra-iliac region and the buttocks". Compensation was claimed for and granted in respect of this period.
The applicant continued in the employ of the respondent until 1983. The applicant gave evidence that the severe pain from which he suffered immediately after the 1972 accident had abated in a week, but that he continued to suffer "a constant ache" and this had been aggravated by heavy work and bending. He continued to have some problems and had days off work but did not claim compensation or sick leave in respect of them, nor did he seek treatment from a doctor until 1979, "because there was a stigma attached to back problems and he did not want to be considered a 'bludger'". However, on 14 December 1979, he consulted a Dr. Meehan who certified him unfit for duty until 20 December 1979 due to a "lumbar 2-3 disc lesion". There were subsequent periods of time off work because of his back problem and the applicant was granted compensation for these periods.
The applicant resigned in 1983 to work on his wife's parents' property after his father-in-law died. He has continued to do farm work since then, both on his father-in-law's property and subsequently on his own. His farming work included fencing, tractor work and general farm work caring for sheep as well as some limited shearing work.
On 14 March 1986, the applicant applied to the respondent for compensation, claiming he was "totally incapacitated for employment by reason of a deterioration of the condition in his lower back which he struck on the steel cable rest on 24 June 1972". Prior to making that application, he had sought light work from the respondent and also registered with the Commonwealth Employment Service, but no suitable work was available. The applicant alleged in his application that the aggravation of his back pain caused by lifting and driving a vehicle for more than an hour and a half limited his capacity to work on the farm. He considered he was fit for light duties, but not for the heavy work and bending in pits that he had done in the past.
The respondent did not determine the application until 27 April 1990, when a delegate of the respondent determined that the respondent was not liable to pay compensation to the claimant in respect of the application dated 14 March 1986. The applicant sought an internal review of this decision. On 30 August 1990, a delegate affirmed the earlier decision on the basis that, although the applicant suffered from a degenerative condition of his spine, the preponderance of the medical evidence was that neither the incident of 24 July 1972 nor the applicant's employment with the respondent "material (sic) contribute to the contraction, aggravation, acceleration or recurrence of a disease suffered by the (applicant)". The applicant applied to the Tribunal for a review of this determination.
The matter was heard by the Tribunal on 21 November 1991 and it delivered its Reasons for Decision on 20 July 1992. In its Reasons the Tribunal identified the "issues" before it as being whether the applicant sustained:
(i) an injury;
(ii) as an employee;
(iii) in the course of his employment.
The Tribunal found that these questions arose by the application of the provisions of s.27(1) of the Compensation (Commonwealth Government Employees') Act 1971 ("the 1971 Act") and the Commonwealth Employees' Rehabilitation and Compensation Act 1988 ("the 1988 Act") and that the combined effect of these two pieces of legislation was that liability to pay compensation is to be determined under s.27(1) of the 1971 Act but the monetary amount of compensation was to be calculated in accordance with the provisions of the 1988 Act. There is no issue here in respect of the 1988 Act nor as to whether the applicant was an employee.
The applicant alleges that the Tribunal's decision contained three errors of law: first, it failed to deal with a submission worthy of serious consideration; secondly, the reasons of the Tribunal do not properly detail the grounds for the conclusions reached; and thirdly, the Tribunal failed to apply the correct test under s.29 of the 1971 Act to determine whether a "disease" existed. Counsel argued the first and third issues first and then dealt with the second issue. I shall deal with each submission in the order in which they were argued.
A failure to consider a submission worthy of serious consideration constitutes an error of law. (Dennis Willcox Pty. Ltd v. Federal Commissioner of Taxation 79 ALR 268 at 276-7). Counsel for the applicant contended the Tribunal had not given consideration to the submission that the applicant's work had contributed to the contraction and/or acceleration of a spondylotic condition from which he was suffering. Counsel for the applicant said he had dealt with this issue in paragraphs 8-11 of his written submissions which were handed up to the Tribunal during the course of the hearing, as well as in his oral submissions. To determine whether this submission was made and was worthy of consideration and whether the Tribunal failed to give it serious consideration requires an examination both of the evidence and of the submissions which were put. It is convenient to deal with the submissions first. Paragraphs 8 to 11 of counsel's written submissions to the Tribunal were as follows:
"8. Sub-section 27(1) of the 1971 Act creates the right of an employee to compensation where an injury occurs in the course of employment, it provides:
"If personal injury arising out of or in the course of employment of an employee by the Commonwealth is caused to the employee, the Commonwealth is, subject to this Act liable to pay compensation in respect of that injury in accordance with this Act."
9. The definition of injury is contained in s5 of the 1971 Act, it provides:
"'injury' means any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury but, subject to section 29 does not include a disease or the aggravation, acceleration or recurrence of a disease"
10. A "disease" is defined in s5 of the 1971 Act as: "'disease' includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development"
11. Pursuant to s29(2) where incapacity results from a disease then for the purposes of the 1971 Act it is deemed to be an "injury" and s27(1) then provides a right to compensation. What is required to link the disease to an employees employment is contained in s29(1). The relevant provisions of s29 provide as follows:
"s29 (1) Where -
(a) an employee contracts a disease or suffers an aggravation, acceleration or recurrence of a disease; and
(b) any employment was a contributing factor to the contraction of the disease or to the aggravation, acceleration or
recurrence, as the case may be, whether or not the disease was contracted or the
aggravation, acceleration or recurrence 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 disease, or from the aggravation, acceleration or recurrence of the disease, as the case may be, then, for the purposes of this Act, unless the
contrary intention appears -
(f) the contraction of disease or to the aggravation, acceleration or recurrence, as the case may be, shall be deemed to be an injury to the employee arising out of the employment of the employee by the
Commonwealth ..." (my underlining)
Later in argument before me, counsel referred to further paragraphs of his written submissions which, relevantly were:
"12. Effectively these provisions mean that the test that an employee must satisfy to show that his incapacity was due to his employment is less stringent for a disease than for an injury: see Miles v. Northern Territory Fire Services (1989) 17 ALD 186, 190 and Delahunty v. The Commonwealth (1981) 53 FLR 9, 13. The relevant principle was succinctly stated, in the case of a disease, by the full Federal Court in Treloar v. Telecom (1990) 97 ALR 321 at 328 where they said:
"... once it is established that an employee in the doing of his work has been exposed to a 'state of affairs to which he otherwise would not have been exposed' or to 'some characteristic of or a condition in which the work was to be performed' and such exposure was a 'contributing' factor to the condition in respect of which he seeks compensation, then it matters not whether the contribution was of any particular size or degree ...".
13. ...
14. Most of the doctors engaged by the respondent acknowledge that the applicant has a back disease however they vary in their diagnosis: eg. Dr. Ehrlich diagnosed "lumbar spondylosis" (T24), Dr. Roarty diagnosed "osteochondritis" (T56), Dr. Edwards on 29 May, 1991 diagnosed "Scheurman's disease" and Sir Keith Jones on 21 June diagnosed "lumbar spondylosis". It is a common theme in the respondent's reports that the applicant has a degenerative back which they allege pre-existed the 1972 fall. On page 1 of his report of 19 June 1989 (T73) Dr. Marsden states, "Degeneration is not the result of one isolated injury, but arises out of the combined effect of weight-bearing and the constant making of< movements.
...
15. There is sufficient evidence for the Tribunal to be satisfied that the work performed by the applicant was a contributing factor, albeit small, to the contraction, aggravation or the acceleration of the applicant's back "disease". Such a contribution is sufficient pursuant to s29 of the 1971 Act for it to be deemed an employment caused disease."
The oral submissions which were said to have raised this argument before the Tribunal appear at p 352-356 of the Appeal Book. In particular, counsel relied on the following passages:
"... there's two ways on my submission that the applicant would be entitled to compensation in this case. One is if the tribunal concluded that the fall down the manhole caused a problem in his back, an injury, and that he's now suffering the incapacity from it. The other circumstance is if the nature and conditions of his employment had contributed to any degenerative condition in his back that now leads to a situation where he is incapacitated."
...
"... there are two bases on which we say that an entitlement to compensation could arise for Mr Henry on the provisions of the 1971 act. In my submission, Senior Member, the medical evidence called by the applicant does give proper account to the fall in 1972 and should be preferred by the respondent. However, even on the medical evidence called by the respondent there is a clear case in my submission that the applicant's current condition is a disease bearing in mind that definition which I've just quoted and it was the evidence even today of Dr Edwards that the degenerative condition of Mr Henry's spine was caused in part by the nature and conditions of his employment."
No reference was made to Dr. Edwards' evidence in the course of argument before me. Having reviewed that evidence, I do not consider that it supports the submission which counsel contends he put to the Tribunal.
Counsel submitted that the oral evidence of Dr. Eikens and Dr. Miller supported the submission that the nature and conditions of the applicant's employment with the respondent contributed to the contraction of the applicant's degenerative back condition. Particular reliance was placed on the following passage in Dr. Eikens' evidence:
"Now, in your examination did you form any conclusion as to whether there was any spondylosis present at all in Mr Henry's spine? - You mean examination of the X-rays?
Well both. Your examination of X-rays and physical examination? - Well on the examination of the X-rays there were changes of< - osteo-spondylitis of the lumbar sacral spine. Clinically on examination one can't definitely establish that.
Yes, and what do you say spondylosis is caused by? - It is usually associated with disc pathology, usually disc degeneration or disc disruption, disc protrusion, any of those with time are usually associated with change of postural alignment of the vertebrae, changes in alignment of the different facet joints and an attempt of accommodation to that change is the development of facet joint osteo-arthritis as well as spondylitis.
What about the carrying out of the heavy duties you have described, do you think that would have any effect on the development of spondylosis? - It is generally felt that that is associated with a higher incidence of development of osteo-spondylitis and facet joint arthritis.
And as a result of that spondylitis and spondylosis that you observed, do you feel that there is any incapacity that results from those conditions in the case of Mr. Henry? - I think that they can contribute to quite significant low back pain at that particular level, and with stiffness and restriction of movement. There are some people who may have those changes on X-ray with very few symptoms but once people have developed symptoms in the lumbar region, particularly if it has been traumatic in origin, then the developments of those osteo-spondylitic changes, or the presence of them, is usually associated with more severe pain, or a protracted course, a longer persistence of the symptoms. In Mr. Henry's case have you formed an opinion on balance as to whether those conditions would be likely to have caused him any incapacity at all? - I think they probably contributed, yes."
Mr. Elliott also relied upon this evidence of Dr. Miller:
"You also answered to my friend that you'd noticed some degenerative change present in the spine. Would you have classed this as spondylosis in your assessment at all? - That would be spondylotic, yes.
Yes. And carrying heavy weights and digging holes, could that contribute to the onset of spondylosis? - It may, it would render - it maybe - it's much more likely to render a symptomatic or pre-existing problem."
Counsel for the applicant then referred to the following portion of the reasons for decision
"39. ... any incapacity suffered by the applicant since leaving the respondent's employment in 1983 has been solely related to the underlying degenerative condition from which he suffers and its subsequent aggravation by the manual work which he has undertaken since leaving the respondent's employment in 1983."
and submitted that the question of what the underlying degenerative condition was and whether the work was a contributing factor to its contraction, aggravation or acceleration was simply not dealt with in the Tribunal's reasons for decision. This was a broader submission than that originally put. Mr. Elliott broadened his submission even further and argued that the Tribunal failed to deal, not only with the issue of contraction of the degenerative condition, but also with the issue of whether the aggravation from the nature and conditions of employment had ceased. For the moment I shall deal only with the question of whether the Tribunal failed to deal with the issue of contraction of the applicant's degenerative condition in circumstances where, as a matter of law, it was required to do so.
Counsel for the applicant said that the question of whether the terms and conditions of the applicant's employment with the respondent contributed to the contraction of the applicant's degenerative spinal condition, or to its aggravation, acceleration or recurrence had been sufficiently raised in the above passages in his written and oral argument. He initially submitted to me that by "contraction" was meant a condition, which developed over a period of time, became symptomatic. Counsel put it in these terms: "when it (the condition) becomes symptomatic you have the contraction of the disease in the sense that it incapacitates him at that point in time." Counsel conceded that his "definition" was also consistent with "aggravation" of a disease. Later, however, counsel said that he had submitted to the Tribunal that the terms and conditions of the applicant's employment had contributed to the contraction of the disease in the sense that it was a factor leading to the arising of the disease, although this had only been done in a global way in the written submissions.
Strictly, counsel is correct when he said he raised the issue of whether the terms and conditions of the applicant's employment with the respondent contributed to the contraction of his degenerative spinal condition, as the matter is specifically raised in his written submissions in paragraph 15 which is set out above. However, as counsel admitted, the issue was only raised in a global way in that paragraph. So far as counsel's oral submissions to the Tribunal are concerned, I do not consider they raised, or raised clearly the question of contraction of the disease. The language used by Mr. Elliott in the passage of his oral submission which I have set out does not expressly deal with the contraction of the disease.
If one looks at the medical evidence, Mr. Elliott conceded that apart from Dr. Miller and Dr. Eikens, the medical evidence was as to whether there had been an aggravation of the applicant's spondylotic condition. He also conceded that Dr. Miller's evidence was more readily understood as being consistent with aggravation rather than contraction. In my opinion his evidence was not only consistent with, but in fact was, that there had been an aggravation of the disease.
That leaves the evidence of Dr. Eikens. Counsel for the applicant argued that although Dr. Eikens was not specifically asked what was the likely cause of the applicant's spondylotic condition, it was to be inferred that in her answers in the passage of her evidence set out above, her evidence was specific to the applicant, having regard to the question "what about the carrying out of the heavy duties you have described?". The reference to "heavy duties" in this question was a reference to what the doctor had said earlier in her evidence, namely, that at the time she saw the applicant, he "was not suitable for heavy manual work", that is "labouring work, carrying weights over about 20 kilos on a repetitive basis, farm labouring work, work that requires heavy lifting, frequent bending, carrying, thoracic rotation that sort of thing". This description included the type of work which the applicant had performed at Telecom.
The question and answer in relation to the effect of such work was as to "the development" of spondylitis and spondylosis and could be understood to refer to the contraction of the disease. However, the evidence does not specifically refer to the applicant and I do not consider that such must be inferred. Nor do I consider that the only inference which could be drawn from Dr. Eikens' evidence was that the terms and conditions of employment contributed to the contraction of the applicant's spondylotic condition.
The position then is that the only submission which can be pointed to which specifically raises the issue of "contraction of the disease" is that within paragraph 15 of the written submissions, and that is made in a global sense only. There was nothing else in the submissions which would have brought to the Tribunal's attention that there was an issue as to whether the applicant's work conditions contributed to the contraction of the disease. It is quite understandable that the Tribunal did not avert its mind to that matter given the medical evidence which went largely, if not entirely to the issue of aggravation of the disease. It may be that the problem arises because of the sense in which Mr. Elliott was using the word "contraction". As I have already indicated, in his initial submission to me he was referring to the concept in a way which was more consistent with aggravation of a disease than its contraction. Although later he said he had made the submission in relation to contraction in a way which did not involve aggravation, I think it is more than likely that he did not have this distinction clearly in his mind during the course of his submissions. In the circumstances, I do not consider that this ground has been made out.
Counsel did not develop any argument in relation to acceleration nor did he refer to any evidence in relation to acceleration. He clearly has not made out any ground in this regard. Similarly, counsel did not direct any substantive submission to the Tribunal's failure to determine what the underlying degenerative condition was and I do not consider there was any error in the Tribunal's supposed failure in this regard.
The next submission of Counsel for the applicant was that the Tribunal had failed to consider the correct test for "disease" under s.29 of the 1971 Act. The respondent's liability to pay compensation arises if an employee sustains an "injury" "arising out of or in the course of ..employment". "Injury" does not, subject to s.29 of the 1971 Act, include "a disease, or the aggravation, acceleration or recurrence of a disease" (s.5). Section 29 relevantly provides that where any employment of an employee of the Commonwealth contributes to the contraction of a disease, or the aggravation, acceleration or recurrence of a disease and the employee suffers partial or total incapacity, the contraction of the disease, or its aggravation, acceleration or recurrence shall be deemed to be an injury to the employee such as to entitle the applicant to compensation under s.27.
Counsel referred to the only reference to "injury" in the Tribunal's decision at paragraph 15 where the Tribunal said:
"15. The applicant alleges that the incapacity from which he presently suffers is a result of the injury in 1972 or alternatively a disease arising as a result of the aggravation of the said injury. Either scenario would constitute an "injury" for the purposes of the 1971 Act pursuant to section 5(1) or section 29(2) of the 1971 Act."
In Delahunty v. Commonwealth (1981) 53 FLR 9, the Full Court of the Federal Court held that the combined effect of ss.27 and 29 of the 1971 Act was that the appropriate question to be asked for the purposes of the 1971 Act was "whether the employment of the appellant had been a contributing factor" to the relevant disease or "to the aggravation or acceleration" of that disease. In that case the Full Court considered that the primary judge had failed to ask himself this question but rather had asked himself an incorrect question, namely the traditional question posed in workers' compensation legislation whether the appellant suffered injury "arising out of or in the course of his employment".
In this case, the Tribunal correctly referred to s.29(2). Counsel for the applicant argued that the test for "disease" under s.29(2) is less strict than that for "injury" under s.27. As this submission was finally formulated it was argued that it cannot be ascertained from the reasons of the Tribunal whether or not the Tribunal applied the correct test under s.29(2) as enunciated in Delahunty, or whether it applied the stricter test for "injury" under s.27.
It seems to me that the resolution of this issue resides in the determination of the final ground argued by counsel for the applicant, that is, whether the Tribunal failed to provide reasons for its decision. It is appropriate to deal with that issue now.
The Tribunal has a statutory obligation to make findings on material questions of fact, to refer to the material upon which those findings are based and to provide reasons for its decision (s.43 of the Act). A failure by the Tribunal to do so constitutes an error of law. Dornan and Ors. v. Riordan (1990) 24 FCR 564; Australian Telecommunications Commission v. Barker (1990) 12 AAR 490; Telescourt v. The Commonwealth (1991) 29 FCR 227. However, the statutory obligation does not impose a standard of perfection upon the Tribunal. Rather, substantial compliance is required. (Bisley Investment Corporation and Anor. v. Australian Broadcasting Tribunal and Anor. (1982) 40 ALR 233).
The statutory obligation to provide reasons is not satisfied merely by a statement or summary of the evidence which has been given and of the contentions of the parties and the Tribunal's conclusions. As Sheppard J said in Commonwealth of Australia v. Pharmacy Guild of Australia and Anor. (1989) 91 ALR 65 at 88:
"Reasons are required to inform the public and parties with an immediate interest in the outcome of the proceedings of the manner in which the tribunal's conclusions were arrived at. A purpose of requiring reasons is to enable the question whether legal error has been made by the tribunal to be more readily perceived than otherwise might be the case. But that is not the only important purpose which the furnishing of reasons has. A prime purpose is the disclosure of the tribunal's reasoning process to the public and the parties."
It was alleged that the only parts of the reasons of the Tribunal that contain findings of fact and a discussion of why those findings were made is to be found in the second half of paragraph 37 and in paragraph 33.
The first part of paragraph 37 contains the Tribunal's summary of the medical evidence. The Tribunal recorded that the two specialist radiologists who gave oral evidence gave contrary views as to the cause of the wedging of the first lumbar vertebrae. Dr. Korber believed it was a normal variant of the appearance of L1. Dr. Lamond, as did all other radiologists who provided written reports, considered it was due to an old fracture of the vertebrae. Almost all other specialists accepted or agreed with the diagnosis of an old fracture of L1. Almost all other specialists agreed that this old fracture was caused by the incident in July 1972. Only Drs. Clift and Edwards believed there was no such connection. All medical reports accepted that there was some level of degenerative disease of the lumbar spine. Except for Drs. Marsden and Stratton in their reports and Dr. Edwards in oral evidence, all doctors believed the degenerative disease was sufficient to render the applicant unfit for heavy work involving bending and lifting and at best fit only for light work.
The Tribunal found there was no consistency between the various reports as to the extent of the continuing effect of the 1972 accident on the applicant's present condition. However, it found that the weight of evidence was that the effect of this incident had ceased and that the nature of the applicant's work with the respondent and the work required on the farm was likely to aggravate the degenerative condition of his spine. (emphasis added)
In paragraph 38, the Tribunal set out the respondent's case, which was essentially that the applicant was not demonstrating sufficient incapacity to be entitled to a pension.
The Tribunal then set out its findings in paragraph 39 in the following terms:
39. Having considered all of the evidence the Tribunal finds, on the balance of probabilities, that the applicant suffers from a
(sic) degenerative changes in the lumbar spine which was aggravated by the injury in 1972 while working for the respondent. However, the Tribunal finds on the basis of the medical evidence that the effects of the aggravation were temporary and that any incapacity suffered by the applicant since leaving the respondent's employment in 1983 has been solely related to the underlying degenerative condition from which he suffers and its subsequent aggravation by the manual work which he has undertaken since leaving the respondent's employment in 1983."
The Tribunal does not state its reasons for making these findings. It is easy to divine the reason for the finding that the applicant had a degenerative spinal condition, as all the medical evidence was to that effect. However, the Tribunal gives no reasons for, and it cannot be readily discerned how it came to its finding that the 1972 accident aggravated the applicant's degenerative condition but that the effects of any aggravation were temporary. Except to the extent that paragraph 37 may have exposed the Tribunal's reasoning, it is not known what evidence was relied on and why evidence to that effect was accepted rather than the evidence that the aggravation caused by the 1972 accident was ongoing. I should add at this stage it must be inferred from the finding that the effects of the aggravation were temporary, that the Tribunal found that the effects of the aggravation had ceased. This is the matter which was raised by counsel to which I referred earlier and it is not necessary to deal with it separately.
The Tribunal had referred to the weight of the medical evidence in paragraph 37. The Tribunal does not state how it came to this finding of weight. It does not state whether some evidence was more persuasive than other evidence or whether weight was determined by the number of doctors who gave evidence for a particular view. It seems that the latter is more likely. Significantly however, the essential finding that the effects of aggravation from the employment were temporary is not reflected in the summary of the evidence or the Tribunal's statement as to the weight of the evidence which is recorded in paragraph 37.
It is possible that the statement in paragraph 37 that the weight of the medical evidence that the nature of the applicant's work with the respondent and on the farm "is likely to aggravate the degenerative condition" meant that incapacity at any given point of time is due to the activity being undertaken at that point of time. It is possible, therefore, that the finding that any incapacity suffered by the applicant since leaving the respondent's employment in 1983 has been solely related to the underlying degenerative condition from which he suffers and its subsequent aggravation by the manual work undertaken since leaving the respondent's employment, flows in some way from the finding that the effects of the aggravation were temporary. However, the Tribunal does not say so, and it is a matter of speculation that this is what the Tribunal meant. It is not sufficient that one may be able to speculate as to why the Tribunal came to a particular finding. In my opinion, the Tribunal has failed to sufficiently disclose its reasoning process in respect of the essential findings which it has made.
There remains outstanding counsel's second argument, namely, that it is not possible to determine whether the Tribunal applied the correct test in respect of "disease" under s. 29. In dealing with the weight of the medical evidence in paragraph 37, the Tribunal's language is consistent with having applied the correct test. The Tribunal speaks, for example, of both employment and farm activities being "likely to aggravate the degenerative condition". This, in my opinion, is consistent with the language of "contribution" as required by s. 29. However, as I have stated above, the Tribunal does not state why the effects of the work aggravation were temporary so as to play no part in his present incapacity. It is not possible from the reasons to determine whether the Tribunal did consider the question of "contribution" by the employment as an ongoing factor in the aggravation of the applicant's condition or whether it applied the stricter test for "injury" under s. 27 A party is entitled to know whether the correct principles of law have been applied, and if not, the error which has been made. If this is not apparent from the reasons, there has been a failure by the Tribunal to comply with its statutory obligations to provide reasons for its decision.
For these reasons, I am of the opinion that the matter should be remitted to the Tribunal for rehearing, with or without further evidence.
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