Razmovski, Alex v Australian Telecommunications Commission

[1983] FCA 386

Re: ALEX RAZMOVSKI
And: AUSTRALIAN TELECOMMUNICATIONS COMMISSION
No. G251 of 1982
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart J.

CATCHWORDS

ADMINISTRATIVE LAW - appeal on a question of law from the Administrative Appeals Tribunal - appellant had pre-existing disease to his right foot - sustained an accident which aggravated the disease while employed with the respondent as a labourer - whether appellant capable of employment - whether there is medical evidence to suggest that the accident sustained by the appellant was relevant to any continuing incapacity for work - whether appellant's employment as a whole was a contributing factor to the incapacity.

Administrative Appeals Tribunal Act 1974, s. 44.

Commonwealth (Compensation to Government Employees) Act 1971, s. 27.

HEARING

SYDNEY

#DATE 21:12:1983

ORDER

1. The appeal be allowed;

2. The decision of the Administrative Appeals Tribunal be set aside.

3. The matter be remitted to the Administrative Appeals Tribunal to be heard and decided according to law after the hearing of such further evidence as it may decide to receive;

4. The Australian Telecommunications Commission pay the appellant's costs of the appeal.

JUDGE1

This is an appeal pursuant to s. 44 of the Administrative Appeals Tribunal Act 1975 on a question of law from a decision of the Administrative Appeals Tribunal (Mr J.O. Ballard (Senior Member)) affirming a determination of the Delegate of the Commissioner for Employees' Compensation made on 23 February 1982 that on and after 26 March 1981 the appellant, Alex Razmovski, was not totally incapacitated for work as a result of personal injury arising out of or in the course of his employment by the respondent, Australian Telecommunications Commission, or as a result of compensable disease.

The appellant is now 62 years of age. He was born in Macedonia on 10 March 1921. He left school at the age of 12 and, until he came to Australia in 1962, he worked at various jobs including farmwork and factory work. He was a soldier for about 2 years between the ages of 19 and 21. After arriving in Australia he worked as a gardener, labourer and process worker. He also worked for about 18 months as a labourer employed by the respondent. After pursuing other jobs he was later re-employed by the respondent as a labourer. He worked continuously with it as a labourer from 1973 to May 1978. His job was digging channels for cables which involved the extensive use of pick and shovel.

On 20 December 1978, the appellant sustained some injury to his right foot when it slipped off a shovel he was using and struck a pipe. The impact jarred his foot. For convenience I shall refer to this as "the incident".

On 13 March 1979 the appellant claimed compensation in respect of the injury he sustained in the incident. On 3 April 1979 a Delegate of the Commissioner made a determination finding liability under s. 27 of the Compensation (Commonwealth Government Employees) Act 1971 ("the Act") for "injured right foot" and awarded the appellant compensation under ss. 37 and 45. Subsequently other determinations were made by a Delegate of the Commissioner, but the relevant determination for the purposes of the appeal to the Tribunal and later to this Court was the one made by the Delegate of the Commissioner on 23 February 1982. That determination was made in the following terms:-

"In the matter of the claim of Alex RAZMOVSKI for compensation in respect of injury to right foot. DETERMINATION

1. On the evidence before me including specialist medical opinion, I find that the said Alex Razmovski suffered an aggravation of a pre-existing disease namely, bilateral hallux rigidus to which his employment was a contributing factor.

2. I am unable to find, on the evidence before me, including specialist medical opinion, that the said Alex Razmovski has been totally incapacitated for work on and subsequent to 26 March 1981 as a result of:-

(a) personal injury arising out of or in the course of his employment, or

(b) the contraction of a disease or the aggravation, acceleration or recurrence of a disease to which his employment was a contributing factor.

3. NOW THEREFORE, in pursuance of the provisions of the Compensation (Commonwealth Government Employees) Act 1971 including sections 27 and 29 of that Act, and further to the determinations previously made in this matter, I hereby determine:-

(a) the said Alex Razmovski suffered an aggravation of a pre-existing disease namely, bilateral hallux rigidus to which his employment was a contributing factor (sub-section 29(1)) and the aggravation of that disease is deemed to be a personal injury to the said Alex Razmovski arising out of his employment (sub-section 29(2));

(b) in accordance with the provisions of sub-section 27(1) of the said Act the Australian Telecommunications Commission is liable to pay compensation in respect of the said personal injury;

(c) the said Alex Razmovski has not been totally incapacitated for work on and subsequent to 26 March 1981 as a result of personal injury arising out of or in the course of his employment;

(d) the said Alex Razmovski has not been totally incapacitated for work on and subsequent to 26 March 1981 as a result of the contraction of a disease, or the aggravation, acceleration or recurrence of a disease to which his employment was a contributing factor;

(e) the Australian Telecommunications Commission therefore is not liable to pay compensation to the said Alex Razmovski under section 45 of the Act on and subsequent to 26 March 1981."

It was common ground before the Tribunal that the respondent bore any onus of establishing that the compensable incapacity had ceased: Commonwealth of Australia v. Muratore (1978) 141 C.L.R. 296.

The appellant was absent from work after the incident until 2 January 1979. He returned to work until about 10 March 1979 but he was put off work for a further week following complaints by him of pain in the region of his foot. He did not work again and was ultimately retired on 20 March 1981 pursuant to sub-s. 56(1) of the Telecommunication Act 1975.

The Tribunal reviewed the medical evidence before it which consisted of oral evidence from Dr Spence, Dr Hedberg and Dr Collins and medical reports from those and other doctors. The critical findings of the Tribunal, so far as this appeal is concerned, were made in paras. 14 and 15 of the Tribunal's reasons in the following terms:

"14. On the facts there is no medical evidence which supports the view that any specific incident in December 1978 is relevant to any continuing incapacity for work now or, indeed, at any time after 26 March 1981. Dr Spence does however support the claim, if it is put on an alternative basis, as a result of long-term heavy digging. I, however, prefer the evidence of Dr Hedberg, supported as it is by that of Dr Collins and the crucial report of the general practitioner, Dr Morgan.

15. I find the following facts:-

(i) the applicant suffered from a diseased right toe;

(ii) the incident with a shovel in December 1978 brought the diseased condition of the toe to light;

(iii) any effect of the aggravation of the symptoms, caused by that incident, or by continuing to work in the first quarter of 1979 ceased well before 26 March 1981 and any manifestations thereafter resulted from the diseased toe and not from a work-related aggravation. This is not therefore a case where any resulting incapacity can be read (sic) to result from pain brought on by activity or work and compensation is not therefore payable for any incapacity resulting from subsequent incidents of pain. I indicate by the same reasoning that it seems to me that any percentage loss that the applicant may have suffered would similarly result from the disease process and not from any aggravation in compensable circumstances."

The Tribunal decided to affirm the determination of the Delegate of the Commissioner made on 23 February 1982.

Two questions arise for determination in this appeal. The first question is whether the Tribunal erred in finding that there was no medical evidence to support the view that the incident was relevant to any continuing incapacity for work at any time after 26 March 1981. Counsel for the appellant submitted that there was some medical evidence to support that view. He referred, in particular, to a report dated 13 August 1982 from Dr Morgan, a general practitioner, who treated the appellant while he was still working with the respondent. In that report Dr Morgan said, amongst other things:

" . . . As far as I was concerned on 16.8.79 when I last saw him his foot was as good as it would ever be without corrective surgery. In my opinion Mr Razmovski had a long standing deformity in this joint. The accident he had was trivial and most of his subsequent disability was of a degenerative nature and the accident would have caused only minor aggravation. I would assess his disability with this foot as being less than 10% and very little of that would have been caused by the accident."

Dr Hedberg gave evidence before the Tribunal that on the radiological evidence "one would tend to the view" that the aggravation of his pre-existing condition ceased fairly soon after the incident. He said that, on the other hand, based on the clinical evidence, symptoms of pain have persisted since the incident and in that sense the aggravation has not ceased and may be permanent. He said that he put the loss of function of the foot at about 30% when viewing the appellant as a member of the community doing clerical and similar work, but he would put the percentage as high as 50% when viewing the appellant as a member of the community engaged in labouring duties. He said:

"I am very open minded as to how much or if there was significant aggravation by the incident".

Although Dr Morgan's report may be some evidence that a minute percentage of the appellant's disability with his right foot "would have been" caused by the incident, this does not in my view detract from the Tribunal's findings. The Tribunal did not say that there was no medical evidence that the incident was relevant to the appellant's continuing disability after 26 March 1981. What the Tribunal said was that there was no medical evidence that the incident was relevant to any continuing incapacity for work after 26 March 1981. Likewise Dr Hedberg's evidence does not run counter to the Tribunal's finding.

Even if the Tribunal had erred in making this finding (and I do not think that it did) it would not be a ground for disturbing its decision. It was not this finding that led to the Tribunal's decision to affirm the delegate's determination. The critical finding was that the effect of any aggravation of the symptoms caused by the incident ceased well before 26 March 1981. There was ample medical evidence to support that finding.

The second question for determination in this appeal is whether the Tribunal failed to have regard to whether the appellant suffered aggravation, acceleration or recurrence of the disease to his right foot to which his employment by the respondent as a whole, from 1973 to 1978, contributed.

Counsel for the appellant did not dispute that there was ample evidence to support a finding that the effect of the incident had ceased well before 26 March 1981 and that any aggravation or acceleration of the disease to the appellant's right foot manifested thereafter resulted from the pre-existing condition. He submitted, however, that the Tribunal erred in finding that those manifestations did not result from "a work-related aggravation". Counsel argued that there was medical evidence to support the finding that the appellant's work with the respondent over the period 1973 to 1978 contributed to the aggravation or acceleration of the disease to his foot and that there was little, if any, evidence to the contrary.

Both parties appear to have conducted their respective cases before the Tribunal by concentrating mainly on two issues: first, whether the incident was relevant to any continuing incapacity of the appellant for work after 26 March 1981 and second, whether the appellant's refusal to undergo an operation to his right foot was unreasonable. The latter is not an issue in this appeal. However, I am satisfied, from reading the reasons for the Tribunal's decision and the material before it, that one of the issues for determination by the Tribunal was whether the years of employment of the appellant by the respondent contributed to any aggravation or acceleration of the disease to his right foot. The Tribunal recognised that this was an issue and this appears from both paras. 14 and 15 of its reasons for decision.

After saying in para. 14 that there was no medical evidence to support the view that the incident was relevant to continuing incapacity for work after 26 March 1981, the Tribunal went on to say, however, that Dr Spence supported the appellant's claim "if it is put on an alternative basis, as a result of long-term heavy digging. I, however, prefer the evidence of Dr Hedberg, supported as it is by that of Dr Collins and the crucial report of the General Practitioner, Dr Morgan."

In my opinion the Tribunal correctly recognised the alternative issue, namely, whether the long term heavy digging of the appellant related to the continuing incapacity for work after 26 March 1981; and the Tribunal correctly recognised that Dr Spence's evidence supported the appellant's case in that regard. There are three reports of Dr Spence in evidence and the third report of 29 October 1982 in particular supports the appellant's case on this point. Dr Spence said:

"OPINION:- This man is suffering from a halux rigidus, the results of reconstructive surgery or arthrodesis are very good. I would not advise insertion of a plastic joint. Anyhow he is not anxious to have any surgery. I do feel that symptoms were aggravated and accelerated by the work which he did with Telecom. There will be no further change in the foot, his symptoms will persist. . . . "

The problem is that the Tribunal went on to say that it preferred the evidence of Dr Hedberg, supported by Dr Collins and the report of Dr Morgan. Yet when the evidence of Dr Hedberg and Dr Collins and their medical reports and the report of Dr Morgan are examined they do not support the conclusion that the "long term heavy digging" by the appellant did not contribute to the aggravation or acceleration of his disease. It is plain from Dr Hedberg's reports and oral evidence that what he was considering was the relevance of the incident to any continuing incapacity of the appellant. He did not direct himself to the work history of the respondent generally as bearing on continuing incapacity. Certainly Dr Hedberg spoke of the original underlying condition of the right foot and gave evidence that there was constant pain from the foot. He assumed that as these were the symptoms, the appellant should be given the benefit of the doubt; hence he attributed the pain to the condition of the foot but negatived the view that it had any serious or ongoing nexus with the incident. He said he was certain that the condition was present well before the incident, and that the aggravation due to the incident was slight and may even have ceased within a few months thereafter. But Dr Hedberg did not give evidence on the question of the effect of the appellant's work over the five year period of his employment on any continuing incapacity. Nor did Dr Collins direct himself to that question. His evidence was to the effect that the pain was due to the natural progression of the disease of the foot and that any aggravation due to the incident had ceased. Dr Morgan's report (he did not give oral evidence) plainly did not have regard to the general effect of his work history upon the appellant's continuing incapacity. He devoted his attention to the effect of the incident upon any incapacity of the appellant.

Thus there is affirmative evidence from Dr Spence which supports the nexus between the appellant's employment generally with the respondent and his continuing incapacity after 26 March 1981. Included in the material before the Tribunal, which had also been before the Delegate, was a certificate from a Dr Bloch dated 22 April 1981 certifying the result of his examination of the appellant on that day. In answer to a question whether the cause of the appellant's condition, on the balance of probabilities, was due to the natural progression of some pre-existing or underlying condition Dr Bloch replied in the affirmative and said:-

"Underlying degenerative change as occurs with age/many years of labouring."

Yet there was no medical evidence pointing to the contrary conclusion that the employment of the appellant by the respondent over the period 1973 to 1978 did not contribute to the aggravation or acceleration of his disease. The evidence relied on by the Tribunal for its conclusions all centered on the effect of the incident in the light of a long history of degeneration of the right foot without attention being directed to the effect of the employment generally by the appellant in his work with the respondent upon the question of continuing incapacity.

As I said earlier, it was accepted before the Tribunal that the respondent bore the onus of proving that compensable total incapacity had ceased. From the material before the Tribunal I do not see how it could be said that the respondent had discharged that onus. The difficulty is that the Tribunal directed its attention to the effect of the incident and whether it had relevance to any continuing incapacity of the appellant without considering the question of the history of the employment generally of the appellant by the respondent on that question.

I would allow the appeal and remit the matter for rehearing by the Tribunal in accordance with these reasons for judgment.