Mindin, Richard v Comcare
[1996] FCA 512
•1 JULY 1996
CATCHWORDS
WORKER'S COMPENSATION - partial loss of vision - stress possible cause - issue of work related stress - failure to consider whether condition could be "injury"
Administrative Appeals Tribunal Act 1975 (Cth)
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Kavanagh v The Commonwealth (1959-1969) 103 CLR 547
Accident Compensation Commission v McIntosh [1991] 2 VR 253
Treloar v Australian Telecommunications Commission (1990) 97 ALR 321
Repatriation Commission v O'Brien (1984-1985) 155 CLR 422
Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (NSW) (1980) 47 FLR 131
Repatriation Commission v Thompson (1988) 82 ALR 352
Re Lombardo and Commonwealth of Australia (1985) 8 ALD 334
Sullivan v Department of Transport (1978) 20 ALR 323
Repatriation Commission v Hughes (1991) 23 ALD 270
Tuite v Allen (1993) 29 ALD 647
Commonwealth of Australia v Spaul (1987) 74 ALR 513
No VG 774 of 1995
RICHARD MINDIN Applicant
- and -
COMCARE Respondent
O'Loughlin J
Sydney (heard in Melbourne)
1 July 1996
IN THE FEDERAL COURT OF AUSTRALIA )
)
MELBOURNE DISTRICT REGISTRY ) No VG 774 of 1995
)
GENERAL DIVISION )
BETWEEN:
RICHARD MINDIN
Applicant
-and-
COMCARE
Respondent
MINUTES OF ORDER
CORAM: O'Loughlin J
PLACE: Sydney (heard in Melbourne)
DATE: 1 July 1996
THE COURT ORDERS THAT
The decision of the Tribunal be set aside.
The case be remitted for rehearing by the Tribunal.
Each party bear his and its own costs of this appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA )
)
MELBOURNE DISTRICT REGISTRY ) No VG 774 of 1995
)
GENERAL DIVISION )
BETWEEN:
RICHARD MINDIN
Applicant
-and-
COMCARE
Respondent
REASONS FOR JUDGMENT
CORAM: O'Loughlin J
PLACE: Sydney (heard in Melbourne)
DATE: 1 July 1996
This matter comes before the Court as an appeal from the General Administrative Division of the Administrative Appeals Tribunal ("the Tribunal"). The applicant, Richard Mindin, was born in Burma on 19 October 1940. He was educated to the tertiary level in that country, obtaining a Science degree. Subsequently he served with the Burmese armed forces as a pilot.
He migrated to Australia in 1971 and in February 1972 joined the Australian Army. He progressed through the ranks and in 1980 he was commissioned and posted to the RAAF School of Languages at Point Cook to commence studies in the Thai
language. Having completed his course, the applicant was posted to Bangkok in 1982 to undertake further studies in the Thai language.
The applicant's family were unable to settle down in Bangkok; there were matrimonial disputes and his wife and children returned to Australia in July 1982 without prior warning to him. The applicant subsequently returned to Australia and, in due course, became a teacher of the Thai course at Point Cook. In 1995 he reached 55 years of age, the army's compulsory retiring age.
There was evidence before the Tribunal from the applicant that he first experienced some problems with his eyes during the period in which he was studying Thai in Australia in 1981. He said that he found the intensive study a strain on his eyes. At that stage he was prescribed glasses to correct a mild hypermetropia. In Bangkok in 1982 his condition deteriorated; he lost the central vision in his left eye. But it was not until he returned to Australia later that year that the diagnosis of central serous retinopathy was made. The Tribunal recorded in its reasons that it had been agreed by all parties that central serous retinopathy:-
"... is constituted by a scarring of the retina in the area of the left macula, is permanent and that it affects the central vision of the left eye. Apart from assisting the applicant to deal with the condition, there is no corrective treatment which can be undertaken"
The applicant, by notice dated 18 March 1987 made a claim for compensation. On 7 December 1987 the claim was disallowed. That is where the position remained for almost six years until 6 September 1993 when the applicant, through his solicitor, applied to the respondent for a reconsideration of the 1987 decision. That application was also unsuccessful and the original decision was affirmed on 18 July 1994. On 15 August 1994 the applicant applied under sub-s 29(1) of the Administrative Appeals Tribunal Act 1975 (Cth) for a review by the Tribunal of the respondent's decision.
When the matter came on for hearing, the Tribunal had before it several reports from a variety of medical practitioners. Not all reports have been reproduced in the appeal book and some that were in the appeal book were not referred to in their entirety by counsel during the course of argument. Witnesses, in addition to the applicant, who gave evidence before the Tribunal were Dr J Norton Taylor, an Ophthalmic surgeon and Dr I N Parkin, a consultant psychiatrist, both of whom were called by the applicant. The respondent called Dr D P Gale, a consultant Ophthalmologist to give evidence.
The case that was ultimately presented on behalf of the applicant was that the onset of central serous retinopathy had been caused predominantly by stress. That is, stress was advanced in place of an earlier allegation that strain - as a result of intensive study - was the cause. It was submitted that the applicant had suffered from stress as a result of the difficulties that he had encountered in his studies both in Australia and in Bangkok but, more particularly, in Bangkok. As to the difficulties that the applicant encountered in his studies, it should be mentioned that, being of Burmese origin, English was his second language. Thus his difficulties were compounded by being taught and having to study Thai through the medium of a language (English) that was not his first language. It was not disputed that his stressed condition was exacerbated by the disruption to and ultimate breakdown of his family relationship, but it was part of the applicant's claim that the Australian Army had failed to offer him and his family any counselling or other assistance in a foreign environment.
The case for the respondent before the Tribunal, and on appeal, was that there was no known aetiology for central serous retinopathy and, that while it remains possible that stress could be a causative factor, the state of medical knowledge is such that this remains a possibility only. In those circumstances the respondent submitted that the Tribunal (and, on appeal, this Court) could not be satisfied, on the balance of probabilities, that there was a causative connection between the applicant's condition and his former employment.
The Tribunal concluded that it was satisfied that:-
"any work-related stress to which the applicant was subject was not a contributing factor to the contraction of the applicant's central serous retinopathy condition nor was it an aggravating, accelerating or recurrent factor to that disease."
At the commencement of this appeal, an issue arose with respect to the basic nature of the applicant's medical condition. It was common ground that the applicant had suffered a loss of vision by reason of central serous retinopathy. But was it an injury , or was it a disease? As the parties agreed that the relevant legislation was the former Compensation (Commonwealth Government Employees) Act 1971 (Cth) ("the 1971 Act") the legislative provisions that must be considered are subs 27(1) which covered "injury" and s 29 which dealt with a "disease". Sub-section 27(1) was in the following terms:-
"27.(1)If personal injury arising out of or in the course of the 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."
Sub-sections 29(1) and (2) provides:-
"29.(1)Where -
(a)an employee contracts a disease or suffers an aggravation, acceleration or recurrence of a disease; and
(b)any employment of the employee by the Commonwealth 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 -
(a)...
(b)...
(c)...
(d)...
(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, or the employee obtained medical treatment in relation to the disease, or 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 the disease, or the aggravation, acceleration or recurrence, as the case may be, shall be deemed to be a personal injury to the employee arising out of the employment of the employee by the Commonwealth; and
(g)the date of the ... commencement of the incapacity or the date on which the medical treatment was first obtained, whichever is the earlier, shall be deemed to be the date of the injury."
In the 1971 Act "injury" and "disease" were defined in sub-s 5(1) as follows:-
""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.
"disease" includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development."
These definitions afford little assistance to anyone lacking medical qualifications and counsel acknowledged that neither Dr Norton Taylor nor Dr Gale had been questioned about the nature or effect of central serous retinopathy so as to assist in determining whether it is either an "injury" or a "disease".
An examination of the papers indicates that in their submissions before the Tribunal neither the applicant nor the respondent clearly addressed the question of the appropriate classification of central serous retinopathy. The printed document that the applicant completed and used to initiate his claim is described as "claim by employee for compensation for injury or disease". In initially rejecting his claim, the respondent in its determination of 7 December 1987 neither used the word "disease" nor the word "injury". It simply referred to the claim "for compensation in respect of central serous retinopathy". Later however, when requested to reconsider its 1987 decision, the respondent used the word "injury" in its letter of 5 August 1993 to the applicant. Later again, in a letter dated 18 July 1994, when the respondent wrote Messrs De Marchi & Associates, the solicitors for the applicant, the author of the letter twice used the word "disease". Thus under the title "Conclusion" the author wrote:-
"I am therefore satisfied, on the evidence available, that on the balance of probabilities, your client's disease of central serous retinopathy was neither caused nor aggravated by his employment... "
By consent, the parties handed up selected pages from the transcript of the proceedings before the Tribunal comprising counsel's opening on behalf of the applicant and the closing addresses of both counsel. Although counsel for the applicant is recorded as having commenced his concluding submissions with the observation that the relevant sections of the 1971 Act were "sections 27, 29 and 39 of the Act" the balance of his submissions did not relevantly refer to the word "injury" nor did he thereafter refer to either section. There were, however, references to the word "disease". When invited by the Deputy President to identify the order that he sought on behalf of the applicant, counsel replied that:-
"... the matter ought to be returned to the Delegate of the Defence Department, with a direction that the disease of central serous retinopathy be determined to be work related, and that an appropriate assessment be made for payment pursuant to section [39] of the Commonwealth Employee Compensation Act 1971."
Save for a passing reference to the contents of the questions in the original claim form, counsel for the respondent neither used the word "injury" nor "disease" but concentrated on submitting that there was no causative link between the applicant's "condition" and his former employment.
The Tribunal commenced its reasons by stating that the application sought review of a decision whereby it was determined that there was no liability "to pay the applicant compensation in respect of a central serous retinopathy on the basis that the condition was neither caused nor aggravated by his employment". This language suggested that the Tribunal was going to investigate both s 27 and "injury" on the one hand and s 29 and "disease" on the other. In s 27 the past tense of the verb "caused" appears in sub-section (1); it is a dominant word in the section for it appears in the passage: "[i]f personal injury ... is caused to the employee ...". It is important to stress that the word "aggravation" does not, nor do any of its derivatives, appear in s 27. On the other hand "aggravation" is one of several important words appearing in s 29 dealing with "disease". Thus if any employee suffers (inter alia) an aggravation of a disease and his employment was a contributing factor the subsequent provisions of s 29 apply. It is equally important to stress that the word "caused" does not, nor do any of its derivatives appear in s 29. Thus it can be said that the word "caused" is synonymous with s 27 and "injury", while "aggravation" is synonymous with s 29 and "disease".
Therefore, the use by the Tribunal of the words "caused" and "aggravated" suggested respectively that the Tribunal intended to consider the likely applications of s 27 and, separately, s 29 of the 1971 Act to the applicant.
What I have said so far is not intended to explain the differences between s 27 and s 29 of the 1971 Act. I have merely referred to two different but significant words as indicating that it appeared that the Tribunal would consider each of the sections. A more important distinction between the sections is that s 29 requires employment to be a "contributing factor" to the contraction or aggravation etc of a disease, whereas s 27 talks of a personal injury being "caused" to an employee. As to this, Menzies J said in Kavanagh v The Commonwealth (1959-60) 103 CLR 547 at 572:-
"My review of these cases leads to the conclusion that if a worker is injured while doing something incidental to what he was employed to do, that is sufficient and no other association between the injury and his work is necessary; he is to be in the same position as if the injury arose while he was doing what he was employed to do."
Circumstances could therefore arise where an injury could be a compensable injury sustained by an employee incidental to his or her employment but where the employment was not a contributing factor.
The Tribunal did not discuss the consequences of the difference between "contributing factor" in s 29 and "caused" in s 27. In fact it would seem that later in its reasons the Tribunal took the view that the applicant was pitching his case under s 29 of the 1971 Act alone. It said:-
"The relevant provision of the 1971 Act is section 29 which provides that if the applicant's employment with
the Commonwealth was a contributing factor to the contraction of the disease or to its aggravation, acceleration or recurrence, then the disease shall be deemed to be a personal injury arising out of the employee's employment with the Commonwealth and consequently compensable."
Having regard to the manner in which counsel for the applicant presented his final submissions, this was, in my opinion, an understandable statement by the Tribunal. But it does not cover the possibility that in the quoted passage that is attributed to counsel, counsel may have been intending to present the applicant's preferred position for a finding based on s 29 and "disease" without abandoning such claim (if any) as the applicant might have in respect of an "injury" under s 27.
Counsel for the applicant on this appeal has submitted that the Tribunal had a duty to consider s 27 of the 1971 Act and that its failure to do so amounted to error entitling this Court to intervene. In the course of his submissions counsel referred to Kavanagh's Case (supra) and Accident Compensation Commission v McIntosh [1991] 2 VR 253 as examples of cases where an extended meaning has been given to the word "injury".
In McIntosh's Case (supra) the Court was called upon to consider whether the sudden rupture of blood vessels and consequent cerebral haemorrhage arising from an arteriovenous malformation was a "physical injury" or a "disease". The Tribunal at first instance, in finding for the respondent McIntosh, came to the conclusion that the cerebral haemorrhage was an "injury" within the meaning of the relevant Victoria legislation. On appeal it was argued that the Tribunal had erred in that it should have found that the respondent's condition fell within the relevant definition of "disease". As to this Murphy J (with whom Crokett and Cummins JJ agreed) said that the respondent McIntosh "was not suffering from any disease in the ordinary sense, but was going about her work in the normal way before the rupture occurred" (p258). That was the context in which his Honour came to the conclusion that the worker had suffered an "injury".
It is not for this court to determine whether Mr Mindin's central serous retinopathy can be encompassed within the definition of "injury". However, it can be said that a Tribunal that is invested with fact finding responsibilities is in a position to assess the evidence before it for the purpose of ascertaining whether an adaptation of the words of Murphy J might apply to this applicant. Whether the incapacitating occurrence is an "injury" is a question of fact which should have been decided by the Tribunal: McIntosh's Case (supra) at 264. It is for the Tribunal to decide what use, if any, it could make from the medical evidence. For example, Dr Gale, in his report of 14 September 1987, described central serous retinopathy in terms that suggested that it might be appropriate to classify it as an "injury". He said:-
"This condition is one which is related to some degeneration of the pigment epithelium and is frequently
caused by a small serous leak from a blood vessel in the vicinity of the macula area."
If central serous retinopathy is properly categorised as an injury - and not as a disease - then a primary task for the Tribunal was to test the evidence before it for the purpose of determining in the language of s 27 of the 1971 Act whether a "personal injury arising out of or in the course of the employment" had been caused to the applicant.
It was submitted by the respondent that the Tribunal had found that the applicant had suffered from a disease, and so it did not have to consider s 27. I cannot agree with that submission, even though the word "disease" appears on several occasions in the reasons of the Tribunal. The Tribunal dismissed the application for review because it was not satisfied "that there is a connection between stress and the onset of the condition" (emphasis added).
Dr Gale refuted the proposition that stress was a cause of central serous retinopathy, but there was contrary evidence before the Tribunal. In the first instance, the psychiatric evidence of Dr Parkin supported the claimed existence of stress. He said, if he had to "prioritise" the cause of this stress, it would be "the domestic factors that occurred and then secondly it would be the language factors that occurred". It was for the Tribunal to consider whether this opinion was acceptable and, if so, whether the stress had the required causative link to an injury or a disease. Presumably the
Tribunal, despite the lack of a specific finding was satisfied that there was not the required causative link to a disease but its reasons did not extend to the subject of an injury.
A report of a Dr Edward Ryan dated 19 September 1986 was tendered but Dr Ryan did not give evidence. It is apparent from the nature and contents of his report that he has some speciality in the field of ophthalmology. The relevant passages from his report are as follows:-
"I agree with diagnosis of "central serous retinopathy". This is an acute swelling of retina followed by scarring.
It is seen most often in young to middle aged men who at the time are labouring under stress. Mostly they are left with permanent scars (as he is). No treatment is helpful.
I think his readers should be altered. This will let the R eye cope with the smallest print.
The role of stress is well founded, perhaps this could be claimed in the cause." (Emphasis added)
The Tribunal felt that this report indicated that stress was only a possibility.
Dr Norton Taylor referred to stress on several occasions in terms that would have assisted the applicant's case. In his report of 22 November 1994 he said:-
"The left central serous retinopathy occurred while he had considerable pressures of study in a foreign language and in a situation in which he found some difficulty in reaching the required standard. Further, he states that at this time he had family and domestic problems resulting in "the loss of his family". It would therefore seem reasonable to accept that the stress factors which occurred in 1982 at least contributed in some degree to the left central serous retinopathy and the permanent defect of left vision which now exists." (emphasis added)
The Tribunal in its reasons, quoted this passage from Dr Norton Taylor's report and followed with the comment that:-
"Dr Norton Taylor confirmed his above statements in his oral evidence and added that prolonged stress may be a causative factor in the disease arising. Dr Norton Taylor also opined that the difficulty the applicant was experiencing with his eyes in 1981 may have been connected to the onset of the condition."
The Tribunal did not make a specific finding that the applicant had suffered from stress. As a result it did not direct its attention to the period of time or the separate occasions when stress was alleged to be present. Nor did the Tribunal seek to identify what was alleged to be the cause of any stress. Rather, so it would seem, the Tribunal was prepared to arrive at its decision by holding that the applicant had not proved that there was any sufficient connection between stress (if, indeed, the applicant suffered stress) and central serous retinopathy. In some circumstances the Tribunal's omission to make a finding that the applicant did or did not suffer stress might not be seen as a reviewable error. In appropriate circumstances, the Tribunal would be entitled to make a finding, as it did, in terms that it was not satisfied that stress, if it existed, was a contributing factor to the contraction or aggravation, etc of central serous retinopathy. A complaint that the Tribunal should have examined the effect of stress and that it should have examined whether, in fact, an aspect of the applicant's employment was a stressful episode amounts to nought if the Tribunal was correct in finding that it had not been proved on the balance of probabilities that stress was a contributing factor.
The Tribunal made three important findings; it said first that it was satisfied that "there is no scientifically established or medically acknowledged cause for central serous retinopathy", secondly that the "aetiology of the disease is unknown" and thirdly that "Dr Norton Taylor was not able to cite any authoritative study which would provide empirical evidence of a connection". Those were important findings but they did not absolve the Tribunal from addressing its primary task. The case for the applicant was that he had suffered work-related stress and that such stress either caused an injury or was a contributing factor in the contraction or aggravation etc of a disease. The applicant had the onus of establishing the relevant connection between stress and his condition and his task, in light of those three findings, was difficult. But it was not impossible; in appropriate circumstances, the absence of medical evidence or a medical explanation might not deter a fact-finding tribunal from arriving at a decision that is favourable to an applicant. In my opinion the Tribunal erred by placing so much reliance on the three findings that have been identified. The Tribunal, as a fact finding body should have addressed the hypothesis, that despite the lack of medical knowledge on the subject,
stress, (if indeed the applicant was found to have suffered stress) did or did not have the necessary causative link in terms either of s 27 or s 29 of the 1971 Act.
Counsel for the applicant submitted that the Tribunal erred in law by failing to refer in its reasons to certain authorities upon which counsel had relied. For example, it was submitted that in his closing address counsel had referred to and relied upon the decision of Treloar v Australian Telecommunications Commission (1990) 97 ALR 321. In that case the Tribunal upheld a worker's claim under s 29 of the 1971 Act on the ground that exposure to sunlight through the worker's employment "contributed to a small degree to the development" of a malignant melanoma in his right leg. That finding was overturned by a single judge but upheld by the Full Court. It was submitted that the failure by the Tribunal to refer to Treloar's Case (supra) indicated a failure on the part of the Tribunal to comprehend the task before it. As I understand the argument, it was to the effect that the Tribunal did not attend to the fact that employment will still be a contributing factor to the contraction or aggravation etc of a disease even though it be contribution to small degree, so long as a causative link is established. The short answer to this submission, which fails to appreciate the responsibilities of the Tribunal, is that the Tribunal had concluded that the applicant had failed to prove any causative link. Based on that finding there was no need for the Tribunal to consider Treloar's Case (supra).
The applicant also claimed that the Tribunal failed to comply with the material provisions of s 43 of the Administrative Appeals Tribunal Act 1975 (Cth). That is the provision that requires the Tribunal to give reasons for its decision including its findings on material questions of fact and a reference to the evidence or the material on which those findings were based. Subject to the specific matters to which I have made reference, I do not consider that there is otherwise any cause to complain about the quality of the Tribunal's reasons. I have concluded that the Tribunal should have addressed the issue of "injury" and I have concluded that there should have been a discrete finding, notwithstanding the calibre of the medical evidence, that there was no evidence supporting the necessary link between stress and central serous retinopathy. Subject to those two matters the Tribunal's reasons were admirably clear, brief and to the point. In any case, when presenting submissions of this nature, counsel should always be mindful of the remarks of Brennan J (as he then was) in Repatriation Commission v O'Brien (1983-84) 155 CLR 422 at 446:-
"An AAT decision, if it is made in accordance with the statutory provisions that govern the exercise of its power, is not invalidated by a mere failure to expose fully the reason for making it."
I have reached the conclusion that this matter should be remitted back to the Tribunal for further consideration. I am aware that it is only in exceptional circumstances that the Court should intervene: Blackwood Hodge Australia Pty Ltd v Collector of Customs (New South Wales) (1980) 47 FLR 131 at 145; see also Repatriation Commission v Thompson (1988) 82 ALR 352 at 357 where the Full Court laid out the task of the Court: "It is to leave to the tribunal of fact decisions as to the facts and to interfere only when the identified error is one of law". However, in my opinion the Tribunal in this case erred in failing to consider whether central serous retinopathy might properly be described as an "injury" within the meaning of the 1971 Act. That was an error of law.
A Tribunal is entitled to be guided by the issues that the parties choose to put before it for its consideration: ReLombardo and Commonwealth of Australia (1985) 8 ALD 334 at 336; see also Sullivan v Department of Transport (1978) 20 ALR 323 at 342; Repatriation Commission v Hughes (1991) 23 ALD 270 at 276; and Tuite v Allen (1992-93) 29 ALD 647 at 651-652. I am mindful of the potential for criticism that the applicant pitched his case in the Tribunal on the contraction or aggravation etc of a disease. However this is beneficial legislation: Commonwealth v Spaul (1987) 74 ALR 513 at 516; and any lingering doubt that I have should be resolved in favour of the applicant.
The decision of the Tribunal is therefore set aside and the case is remitted to be heard and decided again either with or without the hearing of further evidence as the Tribunal may decide after hearing submissions from the parties. In the
unusual circumstances of this case I do not consider that the applicant should have his costs as the lack of clarity in his submissions contributed substantially to the Tribunal's error.
I certify that this and the preceding pages are a true copy of the Reasons for Judgment of the Honourable Justice O'Loughlin.
Associate:
Dated:
Counsel for the Applicant : Mr D De Marchi
Solicitors for the Applicant : De Marchi & Associates
Counsel for the Respondent : Mr J Lenczner
Solicitors for the Respondent : Australian Government Solicitor
Date of Hearing : 14 May 1996
0
11
0