James v Comcare
[2011] FCA 1030
•2 September 2011
FEDERAL COURT OF AUSTRALIA
James v Comcare [2011] FCA 1030
Citation: James v Comcare [2011] FCA 1030 Appeal from: James v Comcare [2010] AATA 393 Parties: ALLAN JAMES v COMCARE File number: ACD 25 of 2010 Judge: FOSTER J Date of judgment: 2 September 2011 Catchwords: ADMINISTRATIVE LAW – appeal from the Administrative Appeals Tribunal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) – whether the applicant has made out that there was no evidence to support certain findings of primary fact – whether the applicant has also made out that certain inferences apparently drawn by the Administrative Appeals Tribunal were reasonably open – whether, in the event that the postulated questions of law are answered favourably to the applicant, the matter should be remitted to the Administrative Appeals Tribunal for further consideration Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5, 5A, 5B, 19, 20, 21, 21A, 22Cases cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 cited
Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 cited
Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 cited
Husband v Repatriation Commission (2000) 171 ALR 69 cited
Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 citedDate of hearing: 28 February 2011 Place: Sydney via video link to Canberra (heard in Canberra) Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 108 Counsel for the Applicant: Mr LT Grey Solicitor for the Applicant: Capital Lawyers Counsel for the Respondent: Mr AP Berger Solicitor for the Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 25 of 2010
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: ALLAN JAMES
ApplicantAND: COMCARE
Respondent
JUDGE:
FOSTER J
DATE OF ORDER:
2 SEPTEMBER 2011
WHERE MADE:
SYDNEY VIA VIDEO LINK TO CANBERRA (HEARD IN CANBERRA)
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The applicant pay the respondent’s costs of and incidental to the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 25 of 2010
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: ALLAN JAMES
ApplicantAND: COMCARE
Respondent
JUDGE:
FOSTER J
DATE:
2 SEPTEMBER 2011
PLACE:
SYDNEY VIA VIDEO LINK TO CANBERRA (HEARD IN CANBERRA)
REASONS FOR JUDGMENT
The applicant has appealed to this Court pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) against a decision of the Administrative Appeals Tribunal (the Tribunal) (James v Comcare [2010] AATA 393) by which the Tribunal affirmed two reconsideration decisions made by delegates of the respondent (Comcare) to deny compensation to the applicant for total incapacity for work as a result of an injury suffered by him on 24 September 2007 whilst at work. Comcare admitted liability to pay compensation for the period from 24 September 2007 to 30 September 2007 and paid compensation to the applicant in respect of that period. However, it denied liability for the balance of the period covered by the applicant’s claims.
The applicant’s present claims relate to the whole of the period from 1 October 2007 to 15 March 2008 with the exception of 3 December 2007 and 4 December 2007 when he was paid upon the basis that he was on sick leave for those two days.
The applicant contended both in the Tribunal and before me that the Comcare delegates had wrongly concluded that the symptoms which he experienced in his left knee in late 2007 and early 2008 were the result of an underlying constitutional condition viz osteoarthrosis and pseudogout and were not caused or aggravated by any work-related injury. His principal contention before me was that the Tribunal made critical findings of fact which led the Tribunal to reach the same conclusion which the Comcare delegates had reached for which there was no evidence whatsoever. His case before the Tribunal was that the injury which he suffered on 24 September 2007 aggravated his symptoms which, by that time, had become chronic as a result of previous work-related injuries and the treatment which he had received for those injuries. He said that the 24 September 2007 incident brought forward the timing of knee replacement surgery which had been suggested earlier in 2007. In addition, he submitted that the Tribunal failed to give consideration to important submissions made on his behalf directed to the very essence of his case and thus committed an error or law which had a significant bearing on the outcome of the Tribunal proceedings.
It was not disputed before the Comcare delegates, before the Tribunal or before me that the applicant had suffered a work-related injury on 24 September 2007. On that day, he had been removing radios from boxes at the warehouse premises of his employer, the Australian Federal Police (the AFP) at 1 Jenke Place, Kambah, ACT, when he caught his left foot on the edge of a box and fell, hitting his left knee on a metal trolley and ending up on the concrete floor of the premises.
As mentioned at [1] above, in this Court the applicant relies upon s 44 of the AAT Act. His application in this Court is called an “appeal” although, strictly speaking, it is an application made in the original jurisdiction of the Court. In order to engage s 44 of the AAT Act, the applicant is required to bring forward a question or questions of law for determination by this Court. If he cannot or does not do so, his appeal will fail. In the present case, the applicant propounded the following two questions of law:
THE QUESTIONS OF LAW raised on appeal are—
2.3whether, in making a finding of fact that the Applicant suffered from gouty symptoms in the left knee for a number of years prior to a series of three left knee injuries (hereafter referred to as “the injuries”), the Administrative Appeals Tribunal (“the Tribunal”) was, as a matter of law, entitled to find that the Applicant did suffer from such symptoms in the left knee, where there was no evidence before the Tribunal of –
2.3.1any complaint made by the Applicant prior to the injuries of gouty symptoms in the left knee; or
2.3.2any findings on examination of the Applicant by any medical practitioner prior to the injuries, which recorded the presence of gouty symptoms in the left knee.
2.4whether the Tribunal, in making the finding of fact referred to in paragraph 2.3 above, was obliged, as a matter of law, to give consideration to central submissions made on behalf of the Applicant that –
2.4.1no evidence of the kind referred to in paragraph 2.3 above existed; and
2.4.2the evidence upon which the Respondent relied was incapable of supporting the conclusion that the Applicant did suffer from gouty symptoms in the left knee prior to the injuries.
The applicant seeks an order setting aside the Tribunal’s decision, an order that the matter be remitted to a differently constituted Tribunal for determination according to law and in accordance with such directions as this Court might make and an order for the costs of the appeal.
THE DECISION OF THE DELEGATE MADE ON 17 JULY 2008
By this decision, the delegate affirmed a determination made by an officer of Comcare on 14 April 2008.
In the decision made on 14 April 2008, the Comcare officer said:
The evidence indicates that in March 2007, approximately 6 months prior to the workplace incident of 24 September 2007, Dr Miniter advised that you required a total knee replacement due to an underlying constitutional condition.
Your treating practitioner certified you unfit for work for 6 weeks following the total knee replacement surgery on 31 January 2008.
Your incapacity for work relates to a medical procedure which was required prior to and regardless of the compensable conditions sustained on the 24 September 2007. Therefore I cannot be satisfied that your incapacity for work for this period was related to your accepted compensable condition.
Accordingly, having regard to the available evidence and the provisions of the Safety, Rehabilitation and Compensation Act 1988, I am denying liability for a period of total incapacity from the 31 January 2008 to 15 March 2008, pursuant to section 19 of the Act.
The Comcare officer who made the decision dated 14 April 2008 stated, at the commencement of the Decision Record, that she was answering the applicant’s “claim for compensation and rehabilitation for aggravation of osteoarthrosis – localised – knee (left), which occurred on 24 September 2007, and in particular the claim for incapacity benefits for the period 31 January 2008 to 15 March 2008”.
By letter dated 12 May 2008, the applicant’s lawyers sought a review of that decision. In support of that application, those lawyers asserted that the decision was wrong at law and, on the available facts, was based upon a very narrow interpretation of beneficial legislation.
In the Reasons for Decision published by the delegate on 17 July 2008, the delegate:
(a)Referred to two reports of Dr Paul Miniter, orthopaedic surgeon. Those reports were dated 7 March 2007 and 12 April 2007 respectively;
(b)Referred to a report of Dr Virginia Pascall, occupational physician, of 5 December 2007; and
(c)Stated her conclusion in the following terms:
Discussion/finding
At issue is to determine whether the employee is entitled to compensation under section 19 in respect of his incapacity from 31 January 2008 to 15 March 2008.
Under section 19 of the Act, claims for incapacity can only be paid if the incapacity incurred by the employee was as a consequence of the compensable condition.
The available specialist evidence clearly indicated that the employee’s condition was due to constitutional pseudogout requiring surgery; namely total knee replacement.
The evidence also clearly indicates that prior to the compensable injury, this surgical operation was already proposed. I also note that Comcare has not accepted liability in respect of this surgical operation and it is clearly evident that the employee’s claimed incapacity related to this surgical operation.
Having regard to the above, I am satisfied that the employee’s subject incapacity claim does not relate to the compensable condition.
THE DECISION OF THE DELEGATE MADE ON 1 SEPTEMBER 2008
By this decision, the delegate affirmed a decision made by a Comcare officer on 10 June 2008 by which that officer denied liability on behalf of Comcare under s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) in respect of the employee’s incapacity for the following periods:
·1 October 2007–2 December 2007; and
·5 December 2007–30 January 2008.
The 10 June 2008 decision related to several additional days to those dealt with by the delegate’s decision of 1 September 2008. Compensation was accepted and paid for total incapacity in respect of the period from 26 September 2007 to 30 September 2007 (ie the period immediately after the 24 September 2007 incident).
In the 10 June 2008 decision, the Comcare officer had regard to ongoing medical certificates provided by Dr Michelle Barrett, the medical certificate dated 20 December 2007 provided by Dr Graeme Moller and the report dated 5 December 2007 provided by Dr Virginia Pascall.
In the 10 June 2008 decision, the Comcare officer said:
With regard to your claims for incapacity benefits for the periods 1 October 2007 to 2 December 2007 and 5 December 2007 to 30 January 2008, I cannot be satisfied on the balance of probabilities that your incapacity for work was due to the injury sustained on 24 September 2007.
Prior to the incident of 24 September 2007 I note that you were certified fit for modified non operational duties of forty hours per week only. Following the incident I note that you were totally unfit for a brief period before returning to modified non operational duties at forty hours per week. Dr Virginia Pascall is of the opinion that the only inhibitor to your undertaking pre-injury duties is the constitutional condition of pseudogout.
The available evidence indicates that regardless of the injury sustained on 24 September 2007, you were unable to undertake preinjury duties and that the injuries sustained on 24 September 2007 did not result in further restrictions on your ability to perform duties for the stated period.
Accordingly, having regard to the available evidence and the provisions of the Safety Rehabilitation and Compensation Act 1988 Act, I have denied liability for incapacity benefits for the periods 1 October 2007 to 2 December 2007, and 5 December 2007 to 30 January 2008, pursuant to section 19 of the Act.
The lawyers for the applicant sought a review of the 10 June 2008 decision by letter sent to Comcare dated 30 June 2008.
The grounds of review were the same as those asserted in relation to the 14 April 2008 decision.
In the reasons for her decision published by the delegate on 1 September 2008, the delegate:
(a)Concluded that:
It is clear from the medical evidence that the employee suffers from a degenerative arthritic condition of his left knee and that he aggravated this condition in compensable circumstances on 24 September 2007. The issue is whether the aggravation has resolved by 1 October 2007 such that the employee’s incapacity resulted from his underlying condition not the injury.
(b)The applicant had been working on a reduced duties basis prior to 24 September 2007 because of his underlying condition;
(c)After weighing competing views as to the impact of the injury sustained on 24 September 2007 by the applicant, the delegate said:
In weighing this evidence, it appears that even though the employee is still discomforted by his injury in terms his incapacity for work has returned to its pre-injury level (that resulted from a non-compensable condition). The incapacity would have occurred irrespective of whether or not the employee suffered the injury and therefore, it is not compensable: s 7(6)(a).
For the reasons summarised at [18] above, the delegate affirmed the determination made by the Comcare officer on 10 June 2008.
THE APPLICATIONS TO THE ADMINISTRATIVE APPEALS TRIBUNAL
By Application filed on 6 August 2008 with the Tribunal, the applicant sought a review of the delegate’s decision dated 17 July 2008. By a similar Application filed on 23 September 2008, the applicant sought a review of the delegate’s decision made on 1 September 2008.
The reasons for the Application in each case were stated in identical terms as follows:
The decision is wrong in law and in its interpretation of the facts.
The hearing before the Tribunal took place on 11 February 2010, 12 February 2010 and 12 May 2010.
In a decision published on 27 May 2010, the Tribunal affirmed both decisions under review. At [3]–[10] of the Tribunal’s reasons, the Tribunal said:
3.Mr James asserts that the periods of incapacity resulted from one or more compensable injuries to his left knee. In his submission, his left knee was injured in three separate incidents at work. He says the first incident occurred in March 2006 while undergoing fitness testing – a ‘beep test’. His evidence is that he twisted his left knee during exercises on a rubber mat: he heard an audible snap in his left knee and experienced pain which subsequently subsided, but never went away. The second incident apparently occurred in May 2006 on a shooting range: he bumped his knee (the inferior patella) on a metal spike and experienced increased symptoms of pain and swelling. Subsequently, on 22 November 2006 Dr Miniter, an orthopaedic surgeon, conducted an arthroscopic investigation of Mr James’ left knee and performed “a resection of a degenerative lateral meniscal tear, a notchplasty and stabilisation of the lateral meniscal remnant”. The Doctor noted a large amount of pseudogout changes in the knee. Shortly thereafter, Mr James’ left knee became swollen and a further arthroscopic wash-out for possible septic arthritis was performed. A further arthroscopy was performed on 13 February 2007 by Dr Morris, another orthopaedic surgeon, in which biopsies were taken and the earlier diagnosis of pseudogout was confirmed. The third incident occurred on 24 September 2007: Mr James fell, hitting his left knee on a trolley and the concrete floor; he experienced increased symptoms as a result.
4.In Mr James submission each of these incidents and procedures has given rise to one or more of the following injuries:
(a) frank physical injury to his left knee;
(b) aggravation of previously asymptomatic osteoarthritis in his left knee; and/or
(c) aggravation of previously asymptomatic pseudogout in his left knee.
Mr James asserts that the aggravation of underlying osteoarthritis and pseudogout are injuries within the meaning of ‘disease’, being aggravations of an ailment to which his employment contributed in a material or a significant degree. In his submission, the issue that is determinative concerns the onset and continuation of pain in his left knee. This, he says, is indicative of the ongoing effects of the injuries that were caused or contributed to in requisite degree by his employment.
5.In Mr James’ submission, determining with precision which specific incident or incidents resulted in the injury or injuries that resulted in the claimed periods of incapacity is of but little moment, as the evidence is sufficient to establish, as a matter of probability to the civil standard of proof, that the aggravation injuries occurred and caused the subject incapacity, bringing forward the need for left knee replacement surgery. These circumstances, in Mr James’ submission, enliven his entitlement to compensation for incapacity as medically certified during the particular periods. That being so, he urges us to set aside the decisions under review.
6. We are not persuaded to that conclusion, however.
7.At this point it is necessary to note that Mr James claimed compensation for the cost of the knee replacement surgery. His claim was denied. That matter is not the subject of these proceedings. Furthermore, it appears that Mr James is asking us to make a finding of liability against Comcare for an injury or injuries that may not previously have been claimed or determined. Mr James has not, for example, claimed compensation for an injury to his left knee during or as a result of arthroscopic surgery. Clearly, absent a claim and consideration of such matters at the primary determination or reconsideration stages, the tribunal has no jurisdiction in relation to those matters. That said, we do not propose to dwell on related issues of jurisdiction as, for reasons that will appear, it is not necessary to do so.
8.Entitlement to compensation for incapacity arises if the particular incapacity is as a result of an injury. The meaning given to ‘injury’ includes a ‘disease’, and ‘disease’ is defined to include the aggravation of an ailment if the employment contributed to the aggravation in a significant or a material degree (amendments to the definitions of ‘injury’ and ‘disease’ came into effect on 13 April 2007).
9.It is clear enough on the medical evidence of Dr Miniter, Dr Morris, Dr Howse, Dr Pascall, Dr Bodel, Dr Burke, Dr Barrett and Dr Moller that Mr James suffers from degenerative osteoarthritis and pseudogout in his left knee that is constitutional and “is not a direct consequence of his work injury”. Mr James, Dr Bodel, Dr Howse and others gave evidence that the pseudogout was rendered symptomatic by incidents in Mr James’ employment in 2006. But the present evidence does not lead us to that conclusion.
10.We are reasonably satisfied that Mr James has a history of gouty complaints, including in relation to his toes, ankles and knee, spanning a number of years prior to 2006, in relation to which he was prescribed Indocid, a non-steroidal anti-inflammatory medication. The Hughes Family Practice medical notes clearly reveal prescriptions for Indocid over a number of years, including in 2005. Dr Miniter noted that “he also has gout and has been given this diagnosis over a number of years”. Dr Howse noted that it was highly likely that the degenerative changes were present prior to the injuries sustained in 2006.
At [11] of its reasons, the Tribunal rejected the opinions of Dr Bodel and Dr Howse whose reports were relied upon by the applicant. Dr Bodel was cross-examined at the hearing before the Tribunal. The Tribunal rejected the evidence of those two doctors because they had relied upon a history provided to them by the applicant which the Tribunal considered to be unreliable. The Tribunal noted that the applicant’s evidence was that he had experienced pain when he injured his left knee in March 2006 while running on rubber mats during a “beep” test. The Tribunal held that the historical and contemporaneous evidence pointed to “a different scenario”. The Tribunal said that that evidence established a history of treatment for gout “including in relation to Mr James’ knee”, prior to the incident in March 2006. The Tribunal said (at [11]):
… Dr Bodel reported the onset of right ankle symptoms in August 2006, following a motor vehicle accident, but the clinical notes of the Hughes Family Practice point to the earlier onset of gouty right ankle symptoms. There is radiological evidence that points to disease in his right foot, right ankle, both knees, and left hip. Dr Morris and Dr Lawrence reported a history in which his left knee condition “seemed to settle entirely”, but he had progressive worsening of swelling and pain from August 2006. Dr Miniter reported that Mr James’ left knee “went back to normal in his opinion” after the beep test incident in March 2006, only becoming an issue again in May 2006 as a result of the shooting range incident. As can be seen, Mr James account of left knee symptoms appears to have changed over time. We prefer the contemporaneous reports of Mr James’ treating doctors to his oral evidence, the reliability of which may be diminished by the effluxion of time.
The last two sentences of [11] of the Tribunal’s reasons constitute an unequivocal finding that the oral evidence of the applicant given before the Tribunal was considered by the Tribunal to be unreliable. That evidence, insofar as it conflicted with the contemporaneous medical records, was rejected.
At [12], for reasons given in that paragraph, the Tribunal rejected the version of events given to Dr Bodel by the applicant as to what occurred during the beep test in March 2006. At [13], the Tribunal noted another inconsistency in the evidence given by the applicant to the Tribunal. The Tribunal said that the applicant had told the Hughes Family Practice that he had suffered a twisting injury to his left knee on 27 January 2006 and that he had failed to recall this incident when giving evidence before the Tribunal.
At [13] of its Reasons, the Tribunal said:
We do not go so far, however, to conclude that Mr James is deliberately lying in his evidence; rather, we have serious questions about the reliability of his memory. To that extent we will treat his uncorroborated evidence concerning events in 2006 and 2007 with care and will give more weight to contemporaneous documentary evidence of his treating doctors.
At [14], the Tribunal said that it was tolerably clear that pseudogout might be susceptible to flare up in response to trauma, including surgery. The Tribunal concluded that the symptoms of the applicant’s pseudogout disease may well have flared in March 2006, May 2006 and September 2007. The Tribunal concluded that these were probably not the only occurrences of such flare ups. The Tribunal went on to observe that the medical evidence before it divided on the point as to whether such flare ups had an effect on the condition of the applicant’s left knee. At [14] of its Reasons, the Tribunal said:
On the one hand, Dr Pascall and Dr Bodel are of the opinion that Mr James’ knee condition deteriorated irreversibly, albeit in small measure, as a result of each flare-up; on the other hand Dr Miniter and Dr Burke are of the opinion that each occurrence was of short duration and did not affect the progress of the underlying osteoarthritis or pseudogout. Dr Pascall, Dr Burke and Dr Bodel accepted that Dr Miniter and Dr Morris are well placed to comment on the issues in relation to Mr James’ left knee as both have relevant medical expertise and performed arthroscopies on Mr James’ left knee. We agree.
At [15]–[18], the Tribunal said:
15.For this reason we directed that a further question be put to Dr Miniter and Dr Morris, neither of whom was called to give oral evidence. The responses are to be found in Exhibits R2 and R3. In sum on this point, we accept that minor traumas to Mr James left knee in 2006 and 2007 caused his previously existing pseudogout condition to flare up. It appears likely that the arthroscopy performed by Dr Miniter on 22 November 2006 caused such a flare-up. We are reasonably satisfied that the overt symptoms of each flare-up resolved in a short span of days of possibly weeks after each event. We accept the evidence of Dr Miniter that it is possible that a minor injury can sometime cause acceleration or precipitation of pre-existing problems. Furthermore, we accept the theoretical possibility that a pseudogout flare-up may cause some minor change in the underlying condition of the affect joint – that possibility cannot be ruled out on the present evidence concerning Mr James’ left knee. But that is as far as we can go.
16.There is not sufficient evidence, in our opinion, to establish that any such changes occurred in Mr James’ left knee as a result of one or more of the flare-ups of pseudogout he experienced. All that can be said on that subject is that there is clear evidence that pseudogout is a progressive degenerative condition, in which crystals form in the structures and tissues of affected joints causing irreversible damage to those parts. That is the nature of the disease. The evidence of Dr Miniter clearly indicates the presence of advanced disease in November 2006 that was sufficient to justify knee replacement surgery. We note, too, that similar findings were made in relation to Mr James’ right ankle. As can be seen knee replacement surgery was recommended by Dr Miniter and Dr Barrett well before the minor injury and related flare-up of symptoms that occurred in September 2007.
17.There is insufficient evidence to establish, as a matter of probability, that the pseudogout and osteoarthritis Dr Miniter identified in Mr James’ left knee in November 2006 were caused or accelerated or aggravated in a lasting manner, directly or in material part, by the two earlier incidents in March and May 2006. The evidence of Dr Miniter, Dr Morris, Dr Burke and Dr Howse suggests no more than the possibility of a causal relationship between these incidents (and the incident in September 2007) and progress of Mr James’ underlying pseudogout and osteoarthritis diseases. The contemporaneous evidence suggests a course of advancing disease in a number of joints, including Mr James’ knee, over a period of years: the disease was not rendered symptomatic by any event in 2006 in the course of Mr James’ employment; symptoms associated with those incidents resolved over a short span of days or weeks and Mr James experienced increasing and ongoing symptoms in his left knee from August or September 2006, about which he complained to Dr Barrett, and as a result of which he was referred to Dr Miniter.
18.We are reasonably satisfied, therefore, that the work-related incidents in March 2006, May 2006 and September 2007 caused minor traumas that are consistent with minor frank injuries, and those minor injuries caused Mr James’ pseudogout symptoms to flare for a short period. It can be accepted that the injuries caused incapacity for work during those short periods. But once the elevated symptoms diminished, Mr James’ left knee condition returned to a state involving persistent and increasing symptoms and ongoing incapacity for work, in varying degrees. We are reasonably satisfied that these persistent symptoms and degrees of incapacity for work are attributable to the progress of his pre-existing degenerative disease and not to the minor injuries and related elevation of symptoms in March 2006, May 2006 and September 2007.
At [19], the Tribunal held that the meniscal tear identified by Dr Miniter when performing the arthroscopy on the applicant in November 2006 was successfully treated and stabilised by Dr Miniter. The Tribunal concluded that there was no compelling evidence that the November 2006 flare up or the arthroscopic procedures contributed in any material or significant degree to any acceleration or lasting aggravation of the pre-existing pseudogout or osteoarthritic disease.
At [20], the Tribunal recorded its preference for the evidence of Dr Miniter and Dr Morris over that of Dr Bodel, Dr Pascall and Dr Howse. In that paragraph, the Tribunal gave reasons for that preference.
At [21]–[24], the Tribunal said:
21.We accept the evidence of Dr Miniter and Dr Morris that the knee replacement surgery in February 2008 was necessary treatment for Mr James’ underlying degenerative pseudogout and osteoarthritis diseases. We are reasonably satisfied that the incidents in March 2006, May 2006 and September 2007 did not contribute in any material or significant degree to aggravate these underlying diseases in a lasting manner, and any minor aggravations that did result were temporary and came to an end within a short period, well before the arthroscopy in November 2006. We note that on 28 November 2007 Dr Barrett reported to Comcare that “The aggravation fo [sic - of] 24/10/07 [sic – 24/9/07] has not resolved”. It appears that on 11 September 2007 Dr Barrett referred Mr James to Fit To Manage for rehabilitation and strengthening of his left leg, and good results were obtained. On 2 October 2007, 30 October 2007 and 26 November 2007 he was found to be fit for his pre-injury duties.[35] We also note that on 30 October 2007 Dr Barrett referred Mr James to Dr Morris as a priority for left knee replacement – “He tripped over a box and hit his knee on the edge of a trolley and then hit the concrete floor. There was no # but of course this has exacerbated the previous knee pain”. Dr Barrett was not called to give oral evidence, so this apparent inconsistency could not be properly tested. Weighing this evidence we are not persuaded by Dr Barrett’s report that any exacerbation of Mr James’ left knee condition resulting from the incident on 24 September 2007 had not resolved on 28 November 2007.
22.For present purposes we must consider whether Mr James suffered any incapacity during the periods under claim that resulted from one or more of the injuries to his left knee to which we have referred above. The present evidence indicates that from 2 October 2007 to 2 December 2007, from 5 to 16 December 2007 and from 18 December 2007 to 30 January 2008 Mr James was fit for his pre-injury duties, which were restricted in nature as a result of the underlying ongoing pseudogout and osteoarthritis in his left knee. There is no compelling evidence before us that Mr James’ partial incapacity is the result of an injury, rather being the result of his ongoing degenerative pseudogout and osteoarthritis. On 8 January 2008 Dr Barrett certified that Mr James was unfit for work on 3 and 4 December as a result of an “exacerbation of pain”, but this is not attributed to an injury. On 20 December 2007 Dr Moller certified that Mr James was unfit for work on 17 December 2007, this, too, is not attributed to an injury – Dr Moller certified that the “Symptoms are entirely consistent with known knee diagnosis [osteoarthritis left knee]”. It is accepted that Mr James was rendered fully unfit for work from 31 January 2008 to 15 March 2008 as a result of left knee replacement surgery.
23.We are reasonably satisfied that Mr James’ incapacity for work on 3, 4 and 17 December 2007 and from 31 January 2008 to 15 March 2008 is attributable to the underlying pseudogout and osteoarthritis in his left knee and to the related knee replacement surgery. It follows that Mr James’ incapacity during these periods is not the result of an injury under the Act. We so find.
24.Thus, in conclusion, we find that the periods of incapacity under claim, from 1 October 2007 to 15 March 2008, are not the result of an injury for the purposes of the Act. We are reasonably satisfied that the varying degrees of incapacity for work that Mr James experienced during these periods was the result of his underlying degenerative pseudogout and osteoarthritis disease. It follows that he is not entitled to compensation for incapacity during these periods and the decisions under review must be affirmed.
The Tribunal noted that all of the medical evidence before the original decision-makers and the Comcare delegates was to the same effect: The applicant suffers from degenerative osteoarthritis and pseudogout in his left knee that is constitutional and is not a direct consequence of any work injury ([9] of its reasons).
The Tribunal held that there was some evidence to the effect that the pseudogout was rendered symptomatic by incidents in 2006 which occurred during the course of the applicant’s employment. The Tribunal ultimately did not accept that evidence ([9] of its reasons).
THE APPLICANT’S CASE
The applicant submitted that the Tribunal erred in law by making certain factual findings central to its decision which were not open on the evidence. This ground was developed in great detail in the applicant’s Written Submissions dated 21 February 2011 and again in oral argument at the hearing. The umbrella submission for these detailed submissions was that there was no evidence before the Tribunal which could rationally support the challenged findings. In order to support a finding of primary fact, so it was submitted, there must be evidence which is both relevant and probative of the particular fact. The applicant also submitted that, if there is no such evidence, it is an error of law to find the fact. The applicant also submitted that it is an error of law to draw an inference from facts found if the inference drawn was not reasonably open on the facts.
The applicant argued that, in the present case, the central factual issue and foundation of the Tribunal’s decision was the finding that the applicant had symptoms (not just underlying pathology) in his left knee prior to 2006. He submitted that there was no evidence before the Tribunal that could support that finding. He contended that that finding infected every other material finding made by the Tribunal.
Before the Tribunal, the applicant relied upon two work-related injuries: An injury suffered on 9 May 2006 described as “a strain of the cruciate ligament of knee (left)” and the injury suffered on 24 September 2007 (as to which see [3] above). In this Court, he submitted that the question before the Tribunal was whether the periods of incapacity in dispute were causally connected to the above two work-related injuries (which had been accepted by Comcare), or to an earlier work-related injury which was suffered in March 2006 (for which no claim had been made), or whether the incapacity during the relevant period was caused entirely by an underlying progressive condition of pseudogout that pre-dated all three injuries and was not caused by the applicant’s work.
Before the Tribunal and in this Court, the applicant did not dispute that, at all relevant times, he may have had pseudogout or osteoarthrosis in his left knee. Nonetheless, he contended that, if he did suffer from those conditions, they were not the cause of any pain or restriction of movement in his left knee prior to 2006 and did not result in any inability to carry out his duties with the AFP. The applicant argued that the work-related injuries suffered by him in 2006 and 2007 aggravated those conditions and made them irreversibly symptomatic.
The applicant underwent knee replacement surgery on 31 January 2008. The applicant submitted that, even if that surgery would have been required at some time in the future, by January 2008, it had been made necessary by the work-related injuries which he had suffered, especially that suffered on 24 September 2007.
The applicant submitted that the following findings made by the Tribunal were not supported by any evidence:
(a)The applicant had a history of gouty complaints including complaints relating to his left knee spanning a number of years prior to 2006: Tribunal’s Reasons For Decision, paragraph 10 (Ground 4.1.1);
(b)The applicant had a history of treatment for a gout condition including his left knee prior to 2006: Tribunal’s Reasons For Decision, paragraphs 10 and 11 (Ground 4.1.2);
(c)The applicant’s account of left knee symptoms changed over time: Tribunal’s Reasons For Decision, paragraphs 10 and 11 (Ground 4.1.3);
(d)Overt symptoms of each flare-up in the applicant’s left knee resolved in a short span of days or possibly weeks after each event: Tribunal’s Reasons For Decision, paragraph 15 (Ground 4.1.4);
(e)The disease in the applicant’s left knee joint was not rendered symptomatic by any event in 2006 in the course of the applicant’s employment: Tribunal’s Reasons For Decision, paragraph 17 (Ground 4.1.5);
(f)Once elevated symptoms diminished, the applicant’s left knee condition returned to a state involving persistent and increasing symptoms and ongoing incapacity for work, in varying degrees: Tribunal’s Reasons For Decision, paragraph 17 (Ground 4.1.6);
(g)The incidents in March 2006, May 2006 and September 2007 did not contribute in any material or significant degree to aggravate the applicant’s underlying degenerative pseudogout and osteoarthritis diseases, and any minor aggravations that did result came to an end within a short period, well before the arthroscopy in November 2006: Tribunal’s Reasons For Decision, paragraph 21 (Ground 4.1.7);
(h)On 2 October 2007, 30 October 2007 and 26 November 2007, the applicant was found to be fit for his pre-injury duties: Tribunal’s Reasons For Decision, paragraph 21 (Ground 4.1.8); and
(i)The present evidence indicates that, from 2 October 2007 to 2 December 2007, from 5 to 16 December 2007 and from 18 December 2007 to 30 January 2008, the applicant was fit for his pre-injury duties: Tribunal’s Reasons For Decision, paragraph 22 (Ground 4.1.9).
The applicant made very detailed submissions both in writing and orally in support of his challenge to each of the above findings. I will address these arguments, to the extent that I consider it necessary to do so, later in these Reasons.
The applicant also contended that the Tribunal had erred in law when it misconceived Dr Miniter’s opinion. He submitted that the Tribunal failed to give proper consideration to the totality of Dr Miniter’s opinion. The applicant argued that the Tribunal appeared to hold that Dr Miniter was of the opinion that the symptoms experienced by the applicant arising from each injury were of short duration after which the applicant returned to the pre-existing level of symptomatology associated solely with the degenerative conditions. The applicant submitted that this was not Dr Miniter’s opinion.
Finally, the applicant argued that the Tribunal had failed to give consideration to the following central submissions made on behalf of the applicant, namely that:
4.3.1there was no medical evidence of any knee problem at all prior to January 2006 apart from the report of Dr Riddell in January 2004;
4.3.2the single comment in the report of Dr Riddell, being the only reference to an alleged prior knee problem, and that comment –
4.3.2.1 did not mention the left knee specifically;
4.3.2.2 did not give any indication that Dr Riddell had gone through any history of problems that the Applicant had in individual joints; and
4.3.2.3 was generated by a gastroenterologist who had no need to know more history than that the Applicant had been taking lndocid regularly.
4.3.3 whatever happened to the Applicant's left knee in January 2006 (about which the Applicant had no recollection) had resolved prior to the “beep” test incident in March 2006.
THE RESPONDENT’S CASE
The respondent submitted that most of the applicant’s submissions directed to his “no evidence” case truly rose no higher than submissions to the effect that the findings of fact were wrong or against the weight of the evidence.
Those submissions did not establish that there was no evidence which could support the challenged findings.
The respondent submitted that:
It is not open to the applicant to argue that a decision of the AAT was against the weight of the evidence. The authorities on the issue indicate that such submissions should be given “short shrift”.
In support of this submission, the respondent relied upon Husband v Repatriation Commission (2000) 171 ALR 69 at [38]–[42] (p 83) (especially at [41]) (per French J). I should say immediately that I agree with the observations which his Honour made in those paragraphs and, in the present case, propose to adopt the approach advocated by his Honour.
The respondent also submitted that, even though the absence of any evidence for a factual finding will amount to an error of law, the Court should not set a decision aside if it is satisfied that the error was immaterial and did not affect the ultimate decision in any material way.
In its Written Submissions, the respondent provided detailed references to the evidence before the Tribunal which it contended was sufficient to support the challenged findings under the no evidence rubric.
The respondent also submitted that the applicant’s argument based upon the Tribunal’s alleged misconception of Dr Miniter’s reports was nothing more than an impermissible complaint about the Tribunal’s fact finding.
Finally, the respondent submitted that the Tribunal had come to grips with and addressed the so-called omitted central submissions (Grounds 4.3.1 to 4.3.3).
CONSIDERATION
Under s 19(1) of the Act, Comcare is liable to compensate a Commonwealth employee (for the definition of which, see s 5) “… who is incapacitated for work as a result of an injury …” other than an employee to whom ss 20, 21, 21A or 22 applies.
The applicant fell within the definition of employee for the purposes of s 19 and was not excluded by any of the succeeding sections.
Section 5A contains the definition of injury for the purposes of the Act (including s 19). Section 5A(1) provides:
5A Definition of injury
(1) In this Act:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
Section 5B provides:
5B Definition of disease
(1) In this Act:
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
In the present case, the applicant must show that his incapacity in the period from 1 October 2007 to 15 March 2008 resulted from the injury suffered by him at work on 24 September 2007 (or from some other work-related injury) or from an aggravation of an injury, which aggravation arose out of, or in the course of, his employment.
At [8] of its reasons, the Tribunal correctly identified the relevant statutory concepts and also correctly identified the questions which it had to decide. Injury includes disease. Disease includes the aggravation of an ailment if the employment contributed to the aggravation in a significant or material degree.
The No Evidence Grounds
In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355–356, Mason CJ said:
The question whether there is any evidence of a particular fact is a question of law: McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8 at 9; Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 137–8. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law: Australian Gas Light at 137–8; Hope v Bathurst City Council (1980) 144 CLR 1 at 8–9. This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions: Federal Commissioner of Taxation v Broken Hill South Ltd (1941) 65 CLR 150 at 155, 157, 160. So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law: Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 at 481, 483.
But it is said that “[t]here is no error of law simply in making a wrong finding of fact”: Waterford v Commonwealth (1987) 163 CLR 54, per Brennan J at 77. Similarly, Menzies J observed in R v District Court; Ex parte White (1966) 116 CLR 644 at 654:
“Even if the reasoning whereby the court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (eg illogical) inference of fact would not disclose an error of law.”
Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference—in other words, the particular inference is reasonably open—even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.
At 357, Mason CJ said that the approach adopted in some English cases and by Deane J in Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 67–68 to the effect that the relevant test is a “no sufficient evidence” test had not by 1990 been accepted by the High Court.
That remains the position.
Therefore, in the context of judicial review, there is no error of law in making a wrong finding of fact and no error of law in drawing an inference based upon illogical reasoning as long as the inference drawn was reasonably open on the facts. As long as there is some evidence to support a finding of fact, no error of law will have been committed.
In the present case, in respect of his “no evidence” grounds, the applicant must demonstrate that there was no evidence to support the findings of primary fact which he challenges and that the inferences which he challenges were not reasonably open to be drawn by the Tribunal. These are high hurdles for the applicant to overcome.
Ground 4.1.1—The applicant had a history of gouty complaints including complaints relating to his left knee spanning a number of years prior to 2006
In a report dated 19 January 2004 made by Dr James Riddell, Gastroenterology Registrar at Canberra Hospital, to Dr Helen Adam, who I infer was the applicant’s treating general practitioner at the time, Dr Riddell recorded that the applicant continued to use Indocid prn for gout, which affects his toes, ankles and knee. Dr Riddell had seen the applicant on 15 January 2004.
In a second letter from Dr Riddell to the applicant’s treating general practitioner dated 23 December 2004, Dr Riddell again referred to the fact that the applicant was on regular Indocid to control gout.
Treatment records produced by the Hughes Family Medical Practice, which the applicant attended over a number of years, demonstrated that he was prescribed Indocid for gout over a number of years commencing in about March 2002 and continuing past January 2006.
In his oral evidence, the applicant denied any previous gouty symptoms in his left knee before 2006. He said that he had symptoms of gout in his left great toe, for which he had been treated with Indocid. That history had been conveyed to Dr Bodel in 2008 and 2009.
In his Written Submissions, the applicant offers a number of theories which were consistent with the entries to which I have made reference but which did not necessarily establish that the applicant had gouty symptoms in his left knee before early 2006.
Counsel for the applicant pressed the submission that the evidence simply did not support the finding which the Tribunal made at [10] of its reasons. He submitted that the evidence was equivocal and that, if Comcare had wished to rely upon the evidence in support of a finding along the lines of that made by the Tribunal at [10] of its reasons, Counsel for Comcare should have put squarely to the applicant the proposition that what he told Dr Riddell on 15 January 2004 was that gout affected his left knee.
As the Tribunal noted at [9] of its reasons, there is no doubt that the applicant suffers from degenerative osteoarthritis and pseudogout in his left knee that is constitutional and is not a direct consequence of his work injury. There is no suggestion that similar symptoms had manifested themselves in his right knee. The Tribunal had to decide whether those underlying conditions existed prior to early 2006 and had manifested themselves in symptoms prior to that time. The Tribunal answered both of those questions in the affirmative.
It may well be that a Tribunal differently constituted may have come to a different conclusion from that to which the Tribunal came in the present case. That does not assist the applicant in his application before me.
What must be shown is that there was no evidence to support the finding which was made.
In my view, the material which I have summarised above and which was before the Tribunal was capable of supporting the finding which was made by the Tribunal at [10] of its reasons. Indeed, it was probably sufficient.
The first and most important challenge to the findings made by the Tribunal under the no evidence umbrella fails.
Ground 4.1.2—The applicant had a history of treatment for a gout condition including his left knee prior to 2006
In support of this challenge, the applicant postulated various investigations, tests and treatments which would have been carried out in respect of the applicant had he had a history of treatment for gout prior to early 2006. The applicant submitted that there was no evidence that any tests or investigations had been undertaken or any of the postulated treatments given to the applicant. It was submitted that the absence of such evidence supported the proposition that there was no evidence before the Tribunal which could have supported this finding.
For the same reasons which I gave for rejecting the first challenge (as to which see [63]–[73] above), this challenge must also fail.
Ground 4.1.3—The applicant’s account of left knee symptoms changed over time
In support of this challenge, the applicant submitted that, when one closely analyses the accounts given to the various medical practitioners upon which the Tribunal relied to come to the conclusion under challenge, there was no evidence to support the conclusion reached. However, the finding of the Tribunal can be supported by the following analysis:
(a)At the hearing before the Tribunal, the applicant testified that his left knee audibly snapped during the beep test incident in March 2006.
(b)None of the medical reports of Dr Morris, Dr Miniter, Dr Pascall or Dr Burke recorded the fact that the applicant had told them about this. When asked in cross-examination at the hearing before the Tribunal whether he ever told any of these doctors about the snap, the applicant replied that he did not remember.
(c)Dr Pascall, who was cross-examined at the hearing before the Tribunal, testified that, if the applicant had told her about hearing an audible snap in his knee in the March 2006 incident, she would have put it in her report.
(d)Dr Burke gave evidence that he did not think that the applicant had told him about an audible snap being heard during the March 2006 incident.
(e)In a letter to the applicant’s treating general practitioner dated 9 January 2007, Dr Morris recorded that the applicant seemed to have a pretty complex history. In that letter, Dr Morris noted that the knee seemed to have settled entirely after the March 2006 incident. He mentioned a further incident unrelated to the applicant’s work. He said that the knee seemed to settle down entirely until a non work-related incident in August 2006. He then recorded that:
A month or two later Mr James began to develop pain in his left knee combined with swelling.
(f)Dr Miniter did not record in his report dated 12 April 2007 that the applicant had told him that he had heard an audible snap during the March 2006 incident. In fact, Dr Miniter recorded that the knee had initially been troublesome but then had slowly settled down and gone back to normal.
(g)The applicant, however, testified that the knee remained painful after the March 2006 incident.
In my view, there was ample evidence to support the finding which the Tribunal made. This ground of challenge also fails.
Ground 4.1.4—Overt symptoms of each flare up in the applicant’s left knee resolved in a short span of days or possibly weeks after each event
The applicant attempted to come to grips with the finding that his knee had settled down fairly much after each flare up incident. The applicant went through in considerable detail a number of matters of fact which he contended supported the proposition that there was no evidence that his knee returned to an asymptomatic condition or at least to a pre-existing state after each flare up.
Contrary to these submissions, the reports of Dr Burke, Dr Pascall and a letter from the applicant’s treating general practitioner all suggested that the pain had settled down following each flare up incident. Dr Pascall said:
My findings are now those of the chronic condition. Prior to September 2007, the effects of the work-related injuries in 2006 had resolved.
The applicant had, after all, returned to work on 4 October 2007, after the 24 September 2007 incident. Once again, there was evidence to support the finding which was made. This ground of challenge must also fail.
Ground 4.1.5—The disease in the applicant’s left knee joint was not rendered symptomatic by any event in 2006 in the course of the applicant’s employment
In support of this ground of challenge, the applicant contended that the challenged finding was plainly dependent upon the alleged presence of pre-existing symptoms in the left knee before 2006. In that sense, the applicant accepted that this finding must stand or fall with the finding made in respect of the first ground of challenge. This is broadly correct. However, the respondent relied upon the report of Dr Morris dated 28 February 2007 and the report of Dr Miniter dated 12 April 2007, both of which support the finding which was made. Dr Miniter opined that the applicant’s condition, as at April 2007, was constitutional. He said that the aggravation of the condition was short term only. Dr Morris thought that the applicant’s symptoms were purely the result of crystal deposition brought about by pseudogout.
Once again, the finding which was made is amply supported before the Tribunal. This ground of challenge also fails.
Ground 4.1.6—Once elevated symptoms diminished, the applicant’s left knee condition returned to a state involving persistent and increasing symptoms and ongoing incapacity for work in varying degrees
The applicant accepted that this finding would stand or fall with the conclusion which I reached in respect of the first ground of challenge. I agree with this. For that reason, this ground of challenge must also fail.
Ground 4.1.7—The incidents in March 2006, May 2006 and September 2007 did not contribute in any material or significant degree to aggravate the applicant’s underlying degenerative pseudogout and osteoarthritis diseases, and any minor aggravations that did result came to an end within a short period, well before the arthroscopy in November 2006
The reasoning of the Tribunal on this point is made quite clear in [21] of its reasons. The so-called inconsistency upon which the applicant lights in his submissions to the effect that the work-related injury which the applicant suffered on 24 September 2007 could not have resolved before an arthroscopy in November 2006 (because that arthroscopy occurred approximately 10 months before) is nothing more than an advocate’s point. The Tribunal intended to relate that proposition to the earlier incidents of March and May 2006. A fair reading of its finding makes this clear.
In answer to this challenge, the respondent submitted, by reference to the reports of Dr Pascall and Dr Miniter, that there was not only some evidence to support this finding but a significant amount of evidence to support this finding. Detailed references were provided. I agree with this submission.
This ground of challenge must also fail.
Ground 4.1.8—On 2 October 2007, 30 October 2007 and 26 November 2007 the applicant was found to be fit for his pre-injury duties
The applicant had been placed on light duties as a result of the August 2006 incident when his foot was run over by a car. In an ACT Initial Rehabilitation Assessment Report prepared by Advanced Personnel Management dated 28 September 2007, that organisation described the applicant as “fit for pre-injury duties”.
In a medical certificate dated 30 October 2007, the applicant was certified to be “fit for restricted duties—ie not deployable, for sedentary duties only”. The same view was expressed in a further medical certificate dated 26 November 2007. The applicant testified that he had been put on light duties after the August 2006 incident and that that was the reason he was at the AFP premises in Kambah in September 2007 when he was injured.
Again, there was evidence to support this finding. This ground of challenge also fails.
Ground 4.1.9—The present evidence indicates that from 2 October 2007 to 2 December 2007, from 5–16 December 2007 and from 18 December 2007 to 30 January 2008 the applicant was fit for his pre-injury duties, which were restricted in nature as a result of the underlying ongoing pseudogout and osteoarthritis in his left knee
The submissions advanced in support of this ground of challenge are not persuasive. In her report dated 5 December 2007, Dr Pascall said that there was no inhibition on the applicant resuming his pre-injury duties apart from his constitutional problem of having pseudogout. She also said that there was potential for the applicant to cause himself further joint flare up if, for instance, he had to support his wife when assisting her to get out of bed.
There was evidence to support this finding. This ground of challenge also fails.
The Misconception Concerning Dr Miniter
In considering this contention made by the applicant, it must be remembered that Dr Miniter did not give evidence at the hearing before the Tribunal. However, various letters from him were in evidence.
Dr Miniter was the applicant’s treating surgeon in 2006.
In a report dated 12 April 2007 made by Dr Miniter to Comcare, Dr Miniter said:
… the specific diagnosis is that this gentleman has an underlying inflammatory condition, either gout or pseudogout. This is involving all three joints that have been inspected by me arthroscopically.
One of the joints inspected by Dr Miniter was the left knee.
Dr Miniter went on to say in his report:
The cause of the current condition is constitutional. Whilst it is certain that this gentleman has had an injury in the workplace, there are no specific indicators that arthroscopy of the right ankle and subtalar joint or of the left knee, which could account for his current issue being anything other than constitutional.
His employment did cause aggravation of the matter but this was short term only.
There are no permanent changes caused by this gentleman having an injury in the workplace.
His current condition does not relate to the workplace.
This gentleman is clearly restricted in his capacity for work but not as a result of his injury in the workplace.
This gentleman requires left total knee replacement as the only viable solution. At his age, and with the pathology demonstrated within his knee, it is not likely that medical therapy will control his problem.
Other comments are not necessary. Unfortunately, Mr James is of the opinion that all of his problems stem from the workplace. Unfortunately, this cannot be objectively supported by the available evidence.
In a letter provided by Dr Miniter to the applicant’s lawyers dated 7 July 2008, Dr Miniter said that:
It is recognised that some people have pseudogout or another arthritic condition that remains asymptomatic prior to a relatively minor injury. The nature of this is not clear. It is however recognised that relatively minor injury can sometimes cause acceleration or precipitation of pre-existing problems.
In a further letter from Dr Miniter to the applicant’s lawyers dated 30 September 2008, Dr Miniter said:
Please note that the pseudogout is a definitive, pre-existing problem. The workplace may have caused a short term exacerbation of this, but it is inconceivable that this has been causative and from this perspective one would not regard the workplace as a substantial long term contributor to his condition.
In the circumstances, I do not think that the Tribunal misconceived Dr Miniter’s opinion. On the contrary, I think that the Tribunal well understood that opinion. In any event, as was submitted by the respondent, this challenge to the Tribunal’s finding concerning Dr Miniter was no more than a challenge to the fact finding of the Tribunal and is, for that reason, impermissible in the present application.
The Alleged Failure on the Part of the Tribunal to Address Central Submissions Made on Behalf of the Applicant
The Tribunal clearly appreciated that the applicant had contended before it that his underlying pseudogout and osteoarthritis in his left knee was asymptomatic prior to the incidents at work in March 2006, May 2006 and September 2007 and that those conditions had been rendered symptomatic by these incidents. This is made clear when regard is had to [4], [5], [9], [11] and [15]–[22] of the Tribunal’s reasons. Unfortunately for the applicant, the Tribunal did not accept that submission. However, in my view, there is no doubt that the Tribunal addressed the submission and rejected it.
In my view, the proposition sought to be made out by the applicant in support of this ground should be rejected.
CONCLUSIONS
The applicant has failed entirely in all of his challenges to the Tribunal’s decision.
For those reasons, the Application must be dismissed with costs.
Before leaving the matter, I wish to make some observations concerning the question of whether or not the questions of law framed in the present case truly meet the requirements of s 44 of the AAT Act. That section refers to a question of law, not an error of law. In my view, for the purposes of this Court’s consideration of appeals pursuant to s 44 of the AAT Act, this distinction needs to be kept in mind.
In Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28, at [61]–[62] (pp 45), Gyles J said:
61 Section 44 of the Act refers to a question of law, not an error of law. Section 45 of the Act casts some light upon the meaning of that phrase when it permits the Tribunal to refer “a question of law arising in a proceedings” to the Federal Court for decision. This, to my mind, assists in coming to the conclusion that “question of law” in s 44 refers to a question of law which may be posed as such rather than supervision of the way the Tribunal carries out a review. This is consistent with the general legislative scheme. Questions of natural justice more sensibly fall within the purview of the ADJR Act than the special and limited provisions of s 44.
62 This view is reinforced by the constitutional backdrop against which the legislation is to be viewed. The Administrative Appeals Tribunal is a purely administrative body, and does not exercise any of the judicial power of the Commonwealth. The Federal Court can only exercise the judicial power of the Commonwealth. Answering questions of law which have arisen in the course of the proceedings of the Tribunal can be seen to be the exercise of that power. Supervising the procedures of an administrative body as such is not the exercise of the judicial power of the Commonwealth. It is reasonable to assume that the legislature would have been anxious not to blur the role assigned to the Federal Court by s 44. Any necessary judicial review could be undertaken pursuant to the ADJR Act: cf Minister for Immigration and Ethnic Affairs v Gungor (1982) 6 A Crim R 81 per Fox J at 83-84 and Sheppard J at 90-94; TNT Skypak International (Aust) Pty Ltd v Commissioner of Taxation (Cth) (1988) 19 ATR 1067 particularly at 1072).
I agree with his Honour’s remarks.
It seems to me that not every error of law gives rise to a question of law. I very much doubt that, in the present case, the errors of law relied upon by the applicant truly give rise to a question of law within the meaning of s 44 of the AAT Act. (See Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at [1]–[33] per Branson and Stone JJ). Further, there is an air of artificiality about the form of the questions in the present case. In my judgment, there is much force in the proposition that they are not questions of law at all. Rather, I am inclined to think that they are nothing more than an attempt to dress up merits review and challenges to findings of fact as questions of law in order to get the applicant across the entry threshold to this Court. However, as this point was not argued before me and not relied upon by the respondent as a reason for dismissing the present Application, I have been content to proceed to deal with the matter without addressing this question.
There will be orders accordingly.
I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate:
Dated: 2 September 2011
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