Potepa, S. v Commonwealth of Australia

[1989] FCA 850

JUDGMENT No. K%...:/.~.?LL

IN THE FEDERAL COURT OF AUSTRALIA	)
1
NEW SOUTH WALES DISTRICT REGISTRY )	No. NG 1371 of 1988

1

GENERAL DIVISION )

BETWEEN:  STANISLAWA POTEPA

Applicant

AND:  COMMONWEALTH OF AUSTRALIA

Respondent

CORAM: Einfeld J.
PLACE: Sydney

DATE : 4 October 1989

EX TEMPORE JUDGMENT

This appli cation for review of a decision of the Administrative Appeals Tribunal. On 28 October 1988 the Tribunal reviewed a decision of a delegate of the Commissioner for Employees Compensation made on 19 October 1987 under the Compensation (Commonwealth Government Employees) Act 1971.

The claim was originally made by the applicant on 30 January 1985. She had been employed at the Concord Repatriation Hospital from April to July 1981 as a cleaner. Her duties included cleaning floors and for this purpose she made use of a heavy industrial floor pollsher from time to time. There seems to have been some dispute about the precise nature of the general work which she performed and in particular the extent of the heavy or	Tribunal found that although it was not as heavy or as repetitive	repetitive work which she claimed that she had to perform. The
as she claimed, nonetheless she did perform some such work in that period.
The condition for which she claimed compensation was described as "mild epicondylitis, a mild rotator cuff syndrome, and a mild stenosing tenosynovitis in both shoulders, elbows and wrist". It was claimed that these conditions resulted from the work which I have described. Except for perhaps one day's work elsewhere than at the Concord Hospital after these injuries were sustained, it appears that the applicant has not worked since she was dismissed from the hospital in July 1981. It is quite extraordinary that in October 1989 a decision is still being made about the applicant's entitlement to compensation more than eight years ago. Such delays can only be conducive to worsening the problems thrown up by the case, especially where as here it is alleged that there are psychological or other overlays affecting the applicant's own assessment of her capacity to work. It is unacceptable that such delays are encountered.
The making of the claim was said to have been delayed by reason of the applicant's apparent inability to understand English, she having migrated to Australia from Poland only in 1980. This is
hardly a satisfactory explanation as it is incumbent upon all employers, especially the Commonwealth, to ensure that all
workers understand, in their own language if necessary, their rights in these regards, especially when it must have been clear from very early in the piece that the applicant was claiming that she was incapacitated and that her incapacity flowed from work which she had done in the employ of the respondent. ~t is simply

unacceptable in a country which invites migrants from many parts of the world and professes an active and sympathetic policy of multi-culturalism, that situations can be allowed to arise which keep in the dark, so far as legal rights are concerned, people who are not fluent in English.

Even still, the matter has been greatly delayed since the lodging of the claim. The decision of the delegate of the Commissioner for Employees' Compensation (the delegate) was made on 19 October

1987, nearly three years after the claim had been lodged. No

serious explanation is given in the material in the appeal book for this impermissible delay. The applicant was certainly seen by a considerable number of doctors in the period immediately following the lodgment of her claim for compensation, but there was also medical evidence available in respect of the period prior to the lodging of the claim. It really must be realized at some time that delays in these matters ill serve the cause of justice and fairness, and that the Commonwealth itself suffers from the delays by creating an exacerbation of the condition and a sense of injustice which a former worker may well entertain as a result of the delays alone.

the delegate who found that the employing agency, the Department	In the event, however, the claim for compensation was upheld by
of Veterans' Affairs, was liable to pay compensation in respect of these conditions under the Act.
The Commonwealth sought a review of this decision by the Administrative Appeals Tribunal as they were entitled to do. For

some reason, this relatively straightforward case took another 12 months to be completed and yet a further 12 months has passed in bringing the matter before the Court. I do not attempt to attribute blame to anyone in particular but it is a grossly unsatisfactory situation that these additional delays have occurred.

The Tribunal set aside the determination of the Commissioner for Employees' Compensation and ordered or determined in lieu thereof that the Commonwealth was to pay compensation for a period of 12 months. It was described in the reasons for the decision of the Tribunal as "12 months after the termination of the respondent's employment". The question that I now have to determine is whether there has been manifested an error of law in the determination of the Tribunal.

I assume that any period of unemployment of the applicant after the injury but prior to her dismissal in July 1981 has already been covered by pay or compensation unrelated to these proceedings. In determining on the period of 12 months, the Tribunal frankly stated that there were many uncertainties arising out of the considerable bulk of medical and other

evidence in the case, that these should be resolved generously in	favour of the applicant worker, and that accordingly a
declaration of one year's total incapacity should be made.
My reading of the material in the appeal book produces no reason,
other than arbitrary, for the choice of this period; there seems to have been no specific event in the progress of the applicant's condition nor any medical reason to justify it. For these
reasons, there is force, as well as irony, in the argument of counsel for the applicant that the case ought really to be dealt with as one in which either no compensation should be awarded, or that compensation should be awarded on the basis of total incapacity from July 1981 to date and continuing into the future. However, there is no cross appeal by the Commonwealth in respect of the Tribunal's decision and understandably the applicant does not seek in her notice of appeal to substitute a decision of no compensation for the decision of 12 months compensation. Ny task is therefore to determine whether the Tribunal's determination not to award compensation on a continuing basis after July 1982 was erroneous in law.
Fundamentally, the grounds of appeal in the notice of appeal all seem to revolve around one matter, yet very little of the address of the applicant's counsel was devoted to it. The basic assertion embodied in the notice of appeal is that the Tribunal erred in law by permitting the respondent to rely upon a functional or psychological overlay as the basis for not ordering continuing compensation to the applicant. In fact, even that formulation of the notice of appeal is erroneous because really
what was alleged in these proceedings was that the Tribunal erred in law in finding that the functional or psychological overlay of
the applicant was either not relevant to the determination which had been made or insufficient to justify the findings which it made.
The fact is that the Tribunal did agree with substantial medical opinion that the applicant's alleged incapacity was not due to any physical or organic condition of the kind embodied in the claim to the Commissioner for Employees' Compensation and re-litigated before the Tribunal. The Tribunal found that in substance the applicant suffered very little or no physical or organic condition at all in the relevant period but that she entertained a significant belief that she was incapacitated to the extent that she claimed. This means that if this were a matter of strict pleading, her case would have to fail because she had not established that she was suffering from the conditions which were embodied in the claim made. In other words, she did not have the epicondylitis or other inflammatory conditions in the parts of the body that she claimed but merely believed that she had had either of these conditions or sufficient conditions to incapacitate her from doing any form of manual labour, or at least manual labour of the kind which she would ordinarily have been able to obtain for herself.
It appears that at the end of the hearing, the Tribunal gave an ex tempore judgment, which is embodied in the transcript for 28 October 1988 but was not reproduced in the appeal papers
presented to this Court. What was presented there was a formal set of reasons for decision, which the Tribunal said followed a
request under the Administrative Appeals Tribunal Act for written reasons. In the observations made ex tempore on 28 October, but not in the reasons for decision which were provided subsequently, the Tribunal expressly found that the applicant worker was an honest person. She had reported honestly what she felt, she had not attempted to masquerade or obfuscate, and to the extent that there were differences between her evidence and the evidence of others, the differences arose honestly in that the worker gave an honest appraisal of her situation from genuine recollections.
In this odd situation of effectively two ludgments, I should give the applicant the benefit of all the findings made which were favourable to her. I therefore must proceed on the basis that if there is an error of law, it must be in the way in which the Tribunal approached and assessed the evidence of the applicant and the medical evidence called in the proceedings. Despite the grounds of appeal in the notice of appeal, the major point argued in this appeal was that the Tribunal failed to take into account all the medical evidence produced; or, perhaps, alternatively, took the medical evidence into account in a way which was not permissible.
~t is not appropriate or necessary that I now review that medical evidence. It will suffice to say that there was evidence to support a claim of continuing incapacity on the part of the applicant by practitioners called to support her case, or whose reports were made available. There was certainly a weight of
witnesses actually gave evidence. It was for the Tribunal to evidence to the opposite conclusion. Some of the medical assess which of the points of view it was prepared to accept.
In its formal reasons for decision at pages 247 and 248 of the appeal papers, the Tribunal set out in summary form the relevant differences of opinion on the issue which it had to determine. For the reasons which it set out on pages 248 and 249, the Tribunal explains why it came down on the side, by and large, of the doctors who were of the opinion that no organic injury had flowed from the work performed by the applicant at Concord
Hospital .
In the light of the finding of the Tribunal that the applicant was honest, this amounts to a preference for the conclusion that, despite her complaints of pain and incapacity, there was no cogent and credible material before it which, on the standard of proof which had to be applied, satisfied the requirement that the complaints related to and flowed from an injury that had arisen out of or in the course of her employment.
It is not a matter for me, but it is certainly reasonable that the Tribunal should have found that the applicant was not motivated by any desire for compensation, in view of the fact that it was almost four years after she stopped work that she actually lodged the claim for compensation for the first time. Hence, whatever other explanation there is for her problems, it is not likely to be found in that populist stereotypical myth. However, it was for the Tribunal to make that finding on the
basis of the evidence and it is not for me. It does not raise a
matter of law when the tribunal of fact accepts one line of medical evidence in preference to another line.
It was argued on behalf of the applicant that this was a failure to take into account material which the Tribunal was bound to take into account. I think it is nothing of the kind. Taking evidence into account does not mean accepting the evidence. It
means considering it. The Tribunal's reasons for decision, both in their ex tempore form and in their more considered state, unquestionably took into account the different points of view raised by the medical evidence. It is not necessary that the Tribunal take into account every line of every doctor's report or evidence. It is necessary in a case such as this for it to address and consider the competing points of view put forward on both sides of the record on the relevant issues. In my opinion, the Tribunal manifestly and quite sufficiently comprehensively carried out this task in this case.
Counsel for the applicant argued that the 12 months determination was, as he called it, "improper"; by which I assume that he meant that being generous to the applicant in the way in which the Tribunal undoubtedly was in this case, was not a proper exercise of the powers and discretions reposed in the Tribunal. I strongly disagree. The Tribunal gave obviously careful consideration to the evidence of the applicant and her credibility, and took into account all the relevant medical evidence. It frankly admitted that, on the basis of all that material, there were some doubts that arose about the nature and
extent of the applicant's condition, both in the sense of whether she suffered an injury in the course of employment (and if so,
what the injury was), and if she did have an injury, what incapacity flowed. The Tribunal resolved those doubts by making the type of factual assessments and ludgments of degree which are regularly made by courts and tribunals all around this country every day in worker's compensation-type situations.
~t is of course always difficult to assess the existence and extent of pain, particularly in this inflammation type of case, and especially when the alleged cause was a relatively short period of work. The Tribunal thought that there was justification in the evidence for finding some period of incapacity based upon the possibility that she did sustain some form of injury which she herself in her claim described as mild. ~t was prepared to give the applicant the benefit of its doubts in the matter to the extent of awarding her compensation for 12 months.
Although it is strictly not a matter for me, on the evidence and findings of fact made and if a strict onus of proof is applied, I agree with the Tribunal that this was a generous assessment. This is not to conclude that if there were other evidence that had been brought forward, the applicant might not have been entitled to compensation for a longer period of time. It is also not to decide that if the conclusions which the Tribunal accepted in relation to the balance of medical evidence were strictly applied, she might not have been entitled to any compensation at all. It was to me a strange and incomprehensible submission by counsel for the applicant that, faced with that choice, the Tribunal
should be held to have erred in law by resolving the choice with an award of 12 months compensation. If I did make such a finding, the case would be referred back to the Tribunal for a rehearing with a decision by this Court that it was an error of
law to have granted the applicant 12 months compensation on the basis of its findings of fact that she did not sustain organic injury and that any incapacity that she has had was unrelated to work.
The consequence of that exercise would be that, at the rehearing, unless there were more evidence, the Tribunal would then be bound to award her no compensation at all. This is not what this appeal properly concerns. I therefore treat that submission as if it was not made and apply my mind to the grounds of appeal that have been filed. None of those grounds manifests or demonstrates an error of law. I therefore confirm and uphold the decision of the Tribunal. The appeal is dismissed.
Later
His Honour ordered that the applicant pay the respondent's costs but reserved for later argument, on a timetable for additional evidence, the questions of the costs of the day of 4 September 1989 when the case was adjourned due to the unavailability of counsel for the applicant.