Nematalla, M. v Commonwealth of Australia

[1991] FCA 235

Re: MAGDOLINE NEMATALLA
And: THE COMMONWEALTH OF AUSTRALIA
No. G369 of 1990
FED No. 235
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.(1)

CATCHWORDS

Administrative Law - Administrative Appeals Tribunal - Appeal on questions of law - Whether Tribunal erred in law in basing its decision on a finding of fact demonstrably contrary to the evidence - Whether Tribunal took into account irrelevant medical evidence - Whether Tribunal denied to the applicant a reasonable opportunity to test certain medical evidence.

Administrative Appeals Tribunal Act 1975 (Cth), s.44(1)

HEARING

CANBERRA

#DATE 13:5:1991

Counsel for the applicant : Mr S. Harben

Solicitors for the applicant : Baker Love

Counsel for the respondent : Mr G.T. Johnson

Solicitor for the respondent : Australian Government Solicitor

ORDER

The application be dismissed.

The applicant pay the respondent's costs of the application.

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

JUDGE1

This is an application by way of appeal pursuant to s.44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) by Magdoline Nematalla ("the applicant"). The appeal is from a decision of the Administrative Appeals Tribunal ("the Tribunal") made on 6 June 1990 affirming a determination made by a delegate of the Commissioner for Employees' Compensation ("the Commissioner") on 6 July 1987.

1. The applicant had lodged a claim for compensation in respect of injury to her right ankle, right knee and back sustained in a fall at work on 25 March 1986. It was determined, pursuant to the relevant provisions of the Compensation (Commonwealth Government Employees) Act 1971 (Cth), that the Commonwealth was liable to pay compensation to the applicant in respect of incapacity arising from "sprained right ankle, lower back injury and right knee injury". Weekly payments of compensation were made in respect of the period 26 March 1986 to 5 December 1986. The determination of 6 July 1987 that was the subject of review by the Tribunal was in the following terms:
   

"DETERMINATION

1. On the evidence before me, I FIND: a) that from and including 8/12/1986, the employee has not been totally incapacitated for work as a result of the personal injury sustained on 25/3/1986, namely sprained right ankle, lower back injury and right knee injury. b) that the effects of the aforesaid personal injury sustained by the employee ceased to exist not later than 4/3/1987.

2. NOW THEREFORE, in pursuance of the provisions of the Compensation (Commonwealth Government Employees) Act 1971, and further to the determination(s) previously made in this matter, I HEREBY DETERMINE:

a) the employee is not entitled to the payment of compensation under sub-section 45(2) of the said Act from and including 8/12/1986. b) the effects of the personal injury sustained by the employee ceased to exist not later than 4/3/1987 and thereupon the Department of Social Security ceased to be liable to pay compensation under the said Act in respect of that personal injury."

The Tribunal interpreted that determination as meaning that the Commonwealth ceased to be liable, on and from 4 March 1987, to make any payments under the Act in respect of the personal injury by accident caused to the applicant by the incident which occurred on 25 March 1986. The effect of the determination and of the Tribunal's decision was that any incapacity for work of the applicant on and after 4 March 1987 was not the result of the accident on 25 March 1986.

1. To appreciate the submissions made by counsel for the applicant it is necessary to refer to certain parts of the Tribunal's decision. After referring to aspects of the applicant's personal history, to her employment as a clerical assistant, and later as a clerk, within the Department of Social Security, and to a fall at work on 24 June 1985 from which she was said to have made a full recovery, the Tribunal referred to the accident on 25 March 1986 in the following terms:
   

"10. On 25 March 1986, she tripped over a 'lumpy' carpet. She fell to the floor on her buttocks. She said that she immediately felt pain in her back, both legs, right knee and right ankle. She was then unable to stand. Two other officers came to help her onto a chair. She was sent home in a taxi. She has not returned to work since that day."

1. Immediately after the accident and until early in 1988 when she moved from Rooty Hill to Shoal Bay, the applicant was under the care of Dr A.S. Gabrael, a general practitioner. She was also treated by Dr M.F. Guirgis, an orthopaedic surgeon specialising in spinal surgery. It appears that the move to Shoal Bay, where, with two of her children, she was living at the time the matter came before the Tribunal, followed the applicant's separation from her husband. After the separation, a third child was born. As the applicant considered she was unable to look after that child, arrangements were made for the child to live with the applicant's in-laws. After moving to Shoal Bay she was treated by Dr Y.A.E. Ghabrial, also an orthopaedic surgeon specialising in spinal surgery.

2. The applicant's case before the Tribunal was that her continuing total incapacity resulted principally from causes associated with her back condition. The Tribunal recorded (par.18 of its reasons for decision) that, in this regard, Dr Guirgis had reported on 20 August 1987 that the applicant had sustained an injury to the disc at the level of L4/5 but stated (par.19) that it was very much a matter of controversy whether she had sustained that injury. Paragraph 19 of the reasons continued:
   

"The diagnosis is that of Dr Guirgis which, as will be seen, affected the approach of Dr Ghabrial subsequently. Dr Guirgis, to a large extent, relied on the lumbar discopathy shown in radiological evidence to which we will shortly refer and interpreted this evidence as indicating a post-traumatic situation. This is really the crux of the applicant's case."

Reference was made (par.20) to an X-ray taken two days after the accident which disclosed no significant discopathy in relation to the lumbo-sacral spine. The Tribunal then set out (par.22) a report of Dr Ho upon a CT scan carried out on 4 July 1986, some three months after the accident. That report read:

"CT SCAN: LUMBO-SACRAL SPINE

The L3 to S1 levels were examined.

There is a small calcified left posterior-lateral protrusion of the L4-5 disc.

This lies just beyond the left L4-5 intervertebral foramin. The left L4 nerve root lies contiguous to the calcified disc protrusion.

The L3-4 and L4-5 discs are intact.

The central canal is of adequate dimensions. The lateral recesses are not narrowed.

Tropism is noted in the L5-S1 facet joints. CONCLUSION

There is a small calcified left posterior-lateral protrusion of the L4-5 disc.

This lies a little beyond the left L4-5 intervertebral foramin."

1. The Tribunal's reasons continue -
   

"23. For the first time a calcified disc protrusion was identified. It subsequently appeared in a further CT scan which was carried out at Newcastle Hospital on 14 February 1989 -

'SPINE SCAN: 14.2.89 (non contrast) Cuts were obtained from mid L3 body down to the sacrum with angled disc cuts through the intervening discs. At L3/4 level, the disc is of normal appearance and there is no nerve root abnormality. At L4/5 and L5/S1 levels there are broad based disc protrusions posteriorly. In addition at L4/5 level there is a small osteophyte situated on the left side and appears to be abutting the nerve root at this level. At L5/S1 level there is loss of the clear demarcation between the S1 nerve root and the thecal sac. This appears to be also in continuous (sic) with the disc protrusion at this level and there is no epidural fat between them. There is no other bone or joint abnormality.'

24. The radiologist's report was interpreted by all who saw it as indicating a degree of progression, both of the protrusion and of the calcification."

1. The Tribunal then referred to the evidence of Dr Guirgis and, in somewhat greater detail, to that of Dr Ghabrial. Reference was also made to reports made by Dr M.S. Alexander and Dr R. Opie, a general surgeon, and to the oral evidence of the latter. Those doctors had examined the applicant at the request of the respondent Commonwealth. Referring to Dr Opie's report and oral evidence, the Tribunal (pars 37, 38 and 40) said:
   

"37. He had not seen the 1989 CT scan at the time he made his report. However, he made the point that the 1986 CT scan, which did show some degree of calcification at L4/5, indicated to him that a degenerative process was taking place. He agreed that at the age of 33 it was early degeneration, however he thought that the applicant's excess weight contributed to this. On cross-examination he added that even if she had not been overweight he would have been of this opinion. In his view only degenerative discs rupture posteriorly. When this was later put to Dr Ghabrial, he agreed that this was still a matter of controversy within the profession.

38. Dr Opie was also of the view that the osteophytes which were disclosed in the 1989 CT scan were a development of the calcification at the same level that was shown in the 1986 CT scan. This further reinforced his view that degeneration was taking place.

...

40. In his report, he denied Dr Guirgis' assertion that disc injury occurred to L4/5 as a result of the 1986 fall. His reason for disagreeing was principally that calcification was there by June 1986. He concluded that it must have been there prior to the injury and that consequently the injury would not have caused the calcification."

1. The Tribunal then referred to a joint medical examination carried out on 7 March 1988 by a panel consisting of a Commonwealth Medical Officer, Dr T.J.G. Brown, Dr Guirgis and a consultant surgeon, Dr R.J. Marshman. The Tribunal also referred to reports made by Dr Marshman following subsequent examinations of the applicant.

2. Paragraphs 42, 43 and 44 of the Tribunal's reasons should be set out in full as counsel for the applicant submitted that it was these paragraphs which disclose the errors of law on the part of the Tribunal which found the jurisdiction of this Court to entertain the present application. Those paragraphs read:
   

"42. The applicant did not allege any psychiatric impairment as a cause of her incapacity for work. She was however referred by Dr Guirgis to a psychiatrist, Dr Younan, and continued to receive therapy from him. In a report of 6 March 1987 he asserted that she was suffering 'a depressive anxiety state'. He attributed this to her pains, to the boredom of unemployment and to the loss of pleasure she formerly derived from her work. He made no reference at all to her other personal circumstances. Dr Bell, who examined the applicant on behalf of the respondent, agreed that she might have a depressive illness but thought that the probable explanation for her current state would be the result of her personality disorder and an excessive use of analgesics. The use of these drugs, he said, was not related to her employment or to her alleged injury. He reported: 'The excessive use of drugs usually arises out of a personality disorder and an unwise expression of hedonistic impulses'. He also ventured the opinion that her marital problems probably arose out of the non-adaptive behaviour associated with her personality disorder. Because no contribution was alleged to arise from psychiatric factors, neither of these psychiatrists was called to give evidence. Nevertheless their reports were tendered and we must take account of what they have to say as a background to our considerations.

43. We came to the view that the demonstrated pathology could account for some of the applicant's pain. There is no doubt that in what is probably a self-protective attitude she tends to exaggerate her symptoms. There are too many inconsistencies noted in her clinical examinations and indeed in her behaviour in the hearing room to ignore these exaggerations. Nevertheless, we were prepared to accept that she experienced pain.

44. In our view, however, the pain from which she presently suffers is of a constitutional and possibly an emotional origin. From a physical point of view, we regard it as a part of an early degenerative process. The actual fall could not account for the continuing symptoms. The weight of evidence is against the conclusions drawn by Dr Guirgis. The disc protrusion was not disclosed by the 1986 CT scan. The 1989 CT scan shows a degree of progression of calcification. This in itself is an indication that degenerative processes are in train. What the applicant suffered as a result of her fall would have been no more than a muscular ligamentous injury which would have resolved at the latest within 12 months (the deemed effective date of termination of compensation in the determination under review). There is no evidence which we are prepared to accept pointing to continuing aggravation of a pre-existing condition or pointing to an acceleration of this constitutional disability. The preponderance of medical evidence, in our opinion, points to the conclusion that the applicant's pains must be accounted for by a mix of a natural progression of lumbar insufficiency having no connection with a minor trauma 4 years ago on the one hand, and unexplored emotional considerations related to the break up of the applicant's marriage and her separation from her baby. We are satisfied that any incapacity from which she now suffers is not the result of the accident which she suffered at work in 1986. That being the case, it is not necessary to examine the extent of her incapacity."

1. The first of the arguments presented on behalf of the applicant hinged upon a single sentence in par.44 of the Tribunal's reasons for decision in which the Tribunal states:
   

"The disc protrusion was not disclosed by the 1986 CT scan."

That sentence was said to be demonstrative of error on the part of the Tribunal as it represented a finding of fact that the 1986 CT scan did not disclose a disc protrusion whereas it did, in fact, do so. It was submitted that a reading of the whole of par.44 makes it plain that the Tribunal considered the protrusion as disclosed in the 1989 scan to be the result of disc degeneration because it was not disclosed by the earlier scan. The critical nature of the finding that the disc protrusion was not disclosed by the 1986 CT scan was apparent, so it was submitted, by reference to par.19 of the Tribunal's reasons. The argument is clearly set out in par.9 of the written submissions of counsel for the appellant:

"9. The Tribunal made it clear that critical to its decision was whether the lumbar discopathy was post traumatic or not. The Appellant submits that the irresistible conclusion is that the Tribunal considered that because the protrusion was disclosed in 1989 it had arisen as a result of a degenerative disease since the CT scan of 1986. In other words the Tribunal could not have come to the same conclusion had it correctly asserted, as was the fact, that the protrusion had appeared in the CT scan of 1986. Had the Tribunal expressed the fact correctly as to the 1986 CT finding it would have then had to resolve the issue differently by specific reference to the competing views of the orthopaedic specialists and in particular the view expressed by Dr Guirgis and Dr Ghabrial as opposed to those called by the Respondent. The Tribunal did not resolve that in a proper manner because it relied on the finding of fact that it made that the lumbar discopathy did not show up in the 1986 CT scan. Accordingly it erred in law and the grounds upon which it came to its conclusion have therefore been undermined."

1. It must be acknowledged, as counsel for the applicant did, that the Tribunal had set out, in par.22 of its reasons for decision, the full text of the report of Dr Ho upon the 1986 CT scan and had correctly concluded (par.23) that that scan had, for the first time, identified a calcified disc protrusion. Reference to Dr Ho's report shows that that protrusion was of the L4/5 disc. There are other references in the Tribunal's reasons for decision which clearly indicate that it accepted that the 1986 CT scan had disclosed a disc protrusion. For example, after setting out in par.23 the report on the 1989 CT scan which disclosed broad based protrusions at both the L4/5 and the L5/S1 levels, the Tribunal noted that that report was interpreted by all who saw it as indicating a degree of progression, both of the protrusion and of the calcification. It is clear that that interpretation had relation to a comparison of the two CT scan reports. There is reference to the 1986 CT scan as showing some degree of calcification at the L4/5 level in that part of the Tribunal's reasons that refer to Dr Opie's report and oral evidence (pars 37, 38, 40). There is also a reference in par.28 of the Tribunal's reasons for decision to the Tribunal having explored with Dr Ghabrial why the broad based protrusions that appeared in the 1989 scan did not appear in the earlier scan.

2. Reading the reasons for decision as a whole I am of opinion that the sentence in par.44 on which the applicant relies is not to be read as a finding that the 1986 CT scan did not disclose any disc protrusion. To do so would be to negate the express finding to the contrary clearly stated in par.23 and would not sit well with the references in the reasons to the calcification at the L4/5 level which the 1986 CT scan disclosed. The Tribunal, in par.44, was concerned with the applicant's continuing symptoms. In this context, the Tribunal, in the relevant sentence, was doing no more than stating that the broad based disc protrusion disclosed by the 1989 CT scan (which encompassed both the L4/5 and the L5/S1 levels) was not disclosed by the 1986 CT scan which disclosed only a small protrusion at the L4/5 level. The use of the definite article before the words "disc protrusion" tends to support this view. The Tribunal's ultimate finding was that the pain which the applicant was then suffering was constitutional in origin, resulting from a progressive degenerative process, and was not the result of the accident at work in 1986. A reading of the whole of the material leads me to conclude that that finding was based primarily on the disclosure for the first time in the 1989 CT scan of a broad based disc protrusion at the L5/S1 level and the progression of calcification between 1986 and 1989 as disclosed by a comparison of the two CT scans. It may be accepted that the language used by the Tribunal in the relevant sentence in par.44 is somewhat ambiguous but, in my opinion, a sufficiently strong case has not been made out in this regard to justify the setting aside of the decision. I should add that a consideration of the whole of the material before the Tribunal demonstrates clearly that there was ample material before it to justify the conclusion at which it arrived.

1. The second argument presented on behalf of the applicant had its genesis in pars 42 and 44 of the Tribunal's reasons for decision, the text of which is set out earlier in these reasons. It was submitted that the Tribunal had erred in taking into account the psychiatric evidence contained in the reports made by Dr Bell as that material was irrelevant to any issue being pursued before the Tribunal. It was further submitted that there had been a denial of procedural fairness to the applicant in that the applicant "was not given the opportunity, or elected not to pursue the opportunity, to test Dr Bell's evidence because the Tribunal made comments sufficient to convince the applicant that Dr Bell's evidence was irrelevant to the proceedings". In counsel's written submission, par.25, the submissions on this aspect of the matter are summarised as follows:
   

"(a) that as the psychiatric evidence was irrelevant then the Tribunal should not have referred or placed any weight on any of the comments made in Dr Bell's reports. As the decision of the Tribunal stands at present it is at the very least unclear to what extent the Tribunal has relied on the contents of Dr Bell's report and in those circumstances the Appellant submits that the appeal must succeed just as it did in Collins case.

(b) the discussion as to the relevance or otherwise of the psychiatric evidence and in particular Dr Bell's evidence provided a framework for the case such that the Appellant incorrectly assumed that the psychiatric evidence and in particular Dr Bell's evidence would form no part of the consideration of the Tribunal. As such the Appellant in effect waived its right to explore the issue and to cross examine Dr Bell and call oral evidence from its own expert. This amounts to a denial of natural justice."

The reference to Collins Case is a reference to Collins v. Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598.

1. As was the case with other medical reports on which the parties relied, the report of Dr Younan and the reports of Dr Bell to which the Tribunal refers in par.42 of its reasons for decision were tendered, without objection, at the outset of the hearing and before any oral evidence was adduced. The report of Dr Younan was tendered by counsel appearing for the applicant, those of Dr Bell by counsel for the Commonwealth. It appears from the transcript of the proceedings before the Tribunal that counsel for the Commonwealth proposed to adduce oral evidence from Dr Bell and had given notice that Dr Younan was required to attend for cross-examination. In the event, neither Dr Bell nor Dr Younan gave oral evidence.

2. In the course of opening the case to the Tribunal, counsel for the applicant was asked by the Deputy President of the Tribunal whether any psychiatric impairment was alleged. Counsel replied in the negative but added that it would be alleged "that any problems that she has, any depression, flows from the accident itself; it is a reactive type depression". There followed an inconclusive discussion of the question whether it was necessary that Dr Bell be called as a witness, the presiding member of the Tribunal saying -
   

"Well then, Mr Johnson, you may wish to consider whether you call Dr Bell at all. I will leave that to you. If his evidence is to be irrelevant to the issues there is not much point in calling him."

In the course of the discussion, counsel for the Commonwealth said:

"Certainly if my friend is prepared to concede that his case stands or falls according to the organic level of impairment and the extent to which that has been contributed to by her past employment, then obviously there is no need to call Dr Bell. But if there is any ambiguity about it then of course we think we should."

1. Evidence was led from the applicant concerning the deterioration in her general health between the date of the fall and the date of the hearing before the Tribunal. She gave evidence as to the breakdown of her marriage and as to her inability to care for her third child. Objection was taken to parts of that evidence but the evidence was allowed. At the conclusion of the applicant's evidence, discussion took place as to the time at which the hearing was to commence on the following day, that time depending on whether Dr Bell was to be called to give evidence. The following exchange took place between Mr Barr for the applicant, Mr Johnson for the Commonwealth and the Deputy President of the Tribunal:
   

"MR JOHNSON: ... My position is that I would be happy not to call Dr Bell, or indeed for the tribunal to be terribly troubled by Dr Bell's evidence at all. If my friend goes so far as to say that he puts the applicant's claim as standing or falling upon an entirely organic basis, namely, whether or not she is incapacitated for work now as a result of some orthopaedic condition which continues to be contributed to by what happened at work in 1986, but if there is any suggestion that there is a psychiatric complication or if there is any suggestion that she has suffered some reactive depression as a result of the accident - - - THE D. PRESIDENT: By reactive depression, you mean that in the strict clinical sense?

MR JOHNSON: I really mean it in whatever sense my learned friend means to convey it.

THE D. PRESIDENT: Well, they are technical words and they have a technical meaning in psychiatric language. MR JOHNSON: Yes, well, as I understand that technical meaning it is a psychiatric disease or condition which springs from the trauma or springs from the failure to recover from the trauma. Now if that sort of allegation is made against us then I think I do need Dr Bell. THE D. PRESIDENT: Yes. What do you say, Mr Barr? MR BARR: The most that we would say is that she suffers - that the applicant suffers from some depression and we say that the depression which she suffers is the result of the pain that she is suffering, but we do not say that the depression which she has is such that it does not enable her to work. We say that if she was physically capable of working then she would be able to work and that the depression would not form a component of her inability to work.

MR JOHNSON: That gives us some comfort, I think."

In the light of that exchange the Commonwealth did not seek to adduce oral evidence from Dr Bell. The applicant did not seek to have him attend for cross-examination nor did the applicant seek to have his reports, or that of Dr Younan, excluded from the material before the Tribunal. Other medical reports which were received by the Tribunal without objection, particularly those of Dr Guirgis and Dr Marshman, referred to the applicant's depressive anxiety state and expressed opinions as to the source of that condition. The oral evidence led by the applicant from Dr Guirgis also adverted to the condition.

1. A transcript record of the closing addresses to the Tribunal is not available and it is not possible, from a consideration of the material before the Court, to ascertain what, if anything, was then said in support of the assertion that had been made that the applicant was suffering from a reactive type depression related to the accident that occurred at work on 26 March 1986. In particular, it does not appear what, if any, reliance was placed by counsel for either party on the report of Dr Younan or those of Dr Bell. In the absence of material demonstrating that the applicant was no longer relying on that assertion so that it ceased to be a matter of any concern to the Tribunal, I am unable to conclude that the Tribunal was in error in referring to the report of Dr Younan and those of Dr Bell in the manner in which it did. In par.42 of its reasons for decision, the Tribunal expressly recognised that no psychiatric impairment was alleged to be a cause of the applicant's incapacity for work and that neither Dr Younan nor Dr Bell had been called to give evidence. The reports were referred to, as the Tribunal said, by way of background only. In my opinion, it cannot properly be said that the ultimate conclusion of the Tribunal was based on anything contained in Dr Bell's reports.

2. I am equally unable to accept the argument for the applicant that the Tribunal denied to her a reasonable opportunity to present her case. At no stage did the Tribunal state that in its view the reports of Dr Bell were irrelevant. The decision whether to call Dr Bell as a witness was one for counsel for the Commonwealth. Counsel then appearing for the applicant elected not to pursue the opportunity that was clearly available to him to require Dr Bell to attend for cross-examination but I am far from satisfied that anything that the presiding member of the Tribunal said during the course of the hearing could have led counsel to make that decision upon a false assumption as to the Tribunal's approach to the matter. Indeed, the presiding member made it plain on more than one occasion that it was for the parties through their counsel to determine the issues and to present their respective cases as they saw fit.

3. For these reasons, the application is dismissed. The applicant must pay the respondent's costs of the application.