Robertson v State of Tasmania
[2000] TASSC 97
•21 July 2000
[2000] TASSC 97
CITATION: Robertson v State of Tasmania [2000] TASSC 97
PARTIES: ROBERTSON, Leanne Barbara
v
STATE OF TASMANIA
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 98/1999
DELIVERED ON: 21 July 2000
DELIVERED AT: Hobart
HEARING DATES: 29 June 2000
JUDGMENT OF: Blow J
CATCHWORDS:
Workers Compensation - Causal relation between injury and incapacity or death - Generally - Issue whether incapacitating disease results from earlier disease.
Aust Dig Workers Compensation [5]
Workers Rehabilitation and Compensation Act 1988, s69(1).
Jones v Devonfield Enterprises (1995) 5 Tas R 345, followed.
Baker v Dixon [1999] TASSC 28, discussed.
REPRESENTATION:
Counsel:
Appellant: W A Ayliffe
Respondent: P Turner
Solicitors:
Appellant: Ayliffe & Ayliffe
Respondent: Director of Public Prosecutions
Judgment Number: [2000] TASSC 97
Number of Paragraphs: 19
Serial No 97/2000
File No LCA 98/1999
LEANNE BARBARA ROBERTSON v STATE OF TASMANIA
REASONS FOR JUDGMENT BLOW J
21 July 2000
This is an appeal from an order of the Workers Rehabilitation and Compensation Tribunal, constituted by its Chief Commissioner. It is brought pursuant to the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s63. That section permits an appeal only by a party who is aggrieved by a determination, order, ruling or direction "in point of law".
The appellant was employed as a technical officer at the Repatriation General Hospital in Hobart. On 14 December 1994, she broke down at work, attended a general practitioner, and was certified as incapacitated for work with a diagnosis of depression. She made a claim for compensation under the Act which was accepted. Compensation was paid. She returned to work on 28 February 1995, initially within the practice of the Government Analyst. In or about June 1995, she returned to her position at the Repatriation General Hospital. She continued to work there until March 1998, when she again absented herself from work. On 16 March 1998, she claimed compensation under the Act in respect of a "major depressive episode". The respondent disputed liability. The appellant referred her claim for compensation to the Tribunal pursuant to the Act, s42. On 27 September 1999 the learned Chief Commissioner made the order appealed from, dismissing her "application".
At the hearing before the Tribunal, it was contended on behalf of the appellant that ever since March 1998 she had been suffering from the same medical condition that had incapacitated her in 1994; that that condition arose out of and in the course of her employment; that her employment contributed to a substantial degree to the onset of that condition; and that she had been totally incapacitated for work as a result of that condition since March 1998. The respondent contended that, for the purposes of the Act, the condition from which the appellant suffered in and after March 1998 constituted a separate "disease" from that which incapacitated her in 1994; that she had been only partially incapacitated from work from about mid-1998; and that compensation was not payable in respect of her incapacity in and after March 1998 by reason of the provisions of the Act, s25(1A).
The Act, s3(1) contains the following definitions:
"'disease' means any ailment, disorder, defect, or morbid condition, whether of sudden or gradual development;
…
'injury' includes a disease;".
The following relevant provisions are contained in s25:
"25 ¾ (1) If in any employment ¾
(a) …
(b) a worker suffers an injury, which is a disease, arising out of and in the course of his employment and to which his employment contributed to a substantial degree,
his employer is, except as is otherwise provided by this Act, liable to pay compensation in accordance with this Act ¾
(c) to the worker
…
(1A) Compensation is not payable under this Act in respect of a disease which arises substantially from ¾
(a)reasonable action taken in a reasonable manner by an employer to transfer, demote, discipline or counsel a worker or to bring about the cessation of a worker's employment; or
(b)a decision of an employer, based on reasonable grounds, not to award or provide a promotion, transfer or benefit in connection with a worker's employment; or
(c)reasonable administrative action taken in a reasonable manner by an employer in connection with a worker's employment; or
(d)the failure of an employer to take action of a type referred to in paragraph (a), (b) or (c) in relation to a worker in connection with the worker's employment if there are reasonable grounds for not taking that action …".
Another provision that is significant in this case is s3(5), which reads as follows:
"(5) For the purposes of this Act, where a worker suffers an injury that is a disease, that injury shall be deemed to have occurred ¾
(a)on the day on which the worker became totally or partially incapacitated by reason of that injury; or
(b)if a day cannot be ascertained under paragraph (a), on the day on which a medical practitioner has certified that the worker was first incapacitated by reason of that injury."
Under the Act, s69(1), weekly payments are payable by way of compensation:"where total or partial incapacity for work results from an injury suffered by a worker and where the existence of such total or partial incapacity is supported by a certificate in a form approved by the Board signed by an accredited medical practitioner or accredited person".
The learned Chief Commissioner received conflicting expert evidence from the appellant's treating psychiatrist, Dr Weidmann, and a consultant psychiatrist engaged by the respondent, Dr Sale. Dr Weidmann gave evidence to the effect that the appellant had suffered from "major depression" from 1995 through to 1998, and that she continued to suffer from that condition when she again became incapacitated. The learned Chief Commissioner rejected that evidence, making the following findings:
"… there was an episode of a major depressive illness in 1995 from which the worker recovered so as to no longer satisfy the diagnostic criteria for that disease. The worker continued to suffer some symptoms suggestive of an ongoing depression (but not of a severity to warrant a diagnosis of a disease) and these symptoms became worse in the period leading up to March 1998 where they once again manifested themselves to an incapacitating extent."
The appellant had submitted a medical certificate certifying that she was incapacitated for work from 5 March 1998. The learned Chief Commissioner proceeded to make a finding pursuant to s3(5)(b) that her "injury" was deemed to have occurred on that date. He rejected evidence from Dr Weidmann to the effect that her illness was a major depression, but found "that on 5 March 1998 the worker suffered an adjustment disorder with depressive symptoms or some form of situational depressive illness as outlined by Dr Sale". He next made a finding to the effect that the appellant's incapacity became a partial one by approximately May 1998.
The learned Chief Commissioner then considered questions of causation with ss25(1)(b) and 25(1A) in mind, reaching the following conclusion:
"I find that the worker suffered her injury (disease) as a result of the effect upon the worker of being told at the meeting of 20 February 1998 that she would not be supported in her redundancy and that her only other options were a transfer (of which she felt there was no opportunity) or a resignation. I therefore find that the disease arose substantially [from] (as it was clearly as a result of) action taken by the employer not to transfer the worker, or to provide a benefit, or alternatively administrative action in not providing a redundancy or even action by the employer not to provide a transfer, or a cessation of the worker's employment within the meaning of Section 25(1A)(a), (b), (c) or (d) of the Act."
He went on to make findings that the course taken by the employer was a reasonable one, and that compensation was therefore not payable to the appellant because of the provisions of s25(1A).
Mr Ayliffe submitted on behalf of the appellant that the learned Chief Commissioner had made a number of errors of law in the reasoning that led to the conclusion that the disease that incapacitated the appellant as from March 1998 was not the same disease that incapacitated her in December 1994. A finding that the 1998 incapacity resulted from the 1994 disease would have precluded the Tribunal from making adverse findings on the basis of s25(1A). That subsection was inserted by the Workers Rehabilitation and Compensation Reform Act 1995, which was proclaimed to commence on 16 August 1995. The subsection does not apply retrospectively to diseases constituting injuries that, for the purposes of the Act, were suffered before the commencement of the amendment.
Mr Ayliffe contended that the learned Chief Commissioner erred in failing to consider whether the 1998 incapacity resulted from the 1994 disease; assuming that a partial remission permitting a return to work in 1995 destroyed the causal chain between the 1994 disease and any subsequent incapacity; assuming that that causal chain was destroyed if not all of the diagnostic criteria for depression remained during the period of partial remission; failing to undertake a common sense evaluation of the causal chain to see whether the link between the 1994 depression and the 1998 incapacity became so attenuated that it was snapped by a novus actus interveniens; misunderstanding the nature of a novus actus interveniens that would snap the causal chain; and confusing the commencement a period of incapacity resulting from a disease with the commencement of the first period of incapacity resulting from that disease.
The first critical question for the learned Chief Commissioner was whether the appellant's 1998 incapacity resulted from her 1994 disease or a new disease. As to the question of causation, the Full Court in Jones v Devonfield Enterprises (1995) 5 Tas R 345 expressed approval of the following passage in the judgment of Kirby P in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 463 - 464:
"The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase 'results from', is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death 'results from' a work injury. What is required is a common sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death 'results from' the impugned work injury ..., is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. ... a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may explained in terms of want of sufficient connection. But in each case, the judge deciding the matter will do well to return, as McHugh JA advised [Woolworths Ltd v Allen, New South Wales Court of Appeal, 25 May 1988, unreported], to the statutory formula and ask the question whether the disputed incapacity or death 'resulted from' the work injury which is impugned."
If an incapacity results from an "injury" (ie, a disease or other injury) which, in turn, results from an earlier "injury", the incapacity results from the earlier injury for the purposes of s69 and the worker's compensation rights are to be determined accordingly. Thus, in FAI General Insurance v Morrisson (1993) 2 Tas R 9, an incapacity for work that commenced in 1991 as a result of a worker's post-traumatic stress disorder which, in turn, resulted from an assault at work in 1990, was held by Crawford J to result from the original injury and to be compensable by the insurer then on risk. In Baker v Dixon [1999] TASSC 28, a worker suffered a neck injury that was not a disease in 1993 while working for one employer, suffered from a disease as a consequence, and in 1996 suffered an exacerbation of symptoms as a result of work for a second employer to such an extent that she became incapacitated. Crawford J held that it was necessary for the Tribunal to consider what "injury", if any, caused the 1996 incapacity, whether it arose out of and in the course of the worker's 1996 employment, and whether that employment contributed to that injury to a substantial extent, and then to determine whether her 1996 incapacity resulted from the 1993 injury or whether it resulted from a disease for which her 1993 employment was responsible.
Before the learned Chief Commissioner, it was contended on behalf of the appellant that her incapacity in 1998 resulted from the same disease that had incapacitated her in 1994, and that that disease was depression. It was contended on behalf of the respondent that what incapacitated the appellant in 1998 was a new disease, an adjustment disorder, that did not result from the depression that she suffered in 1994. But there existed a third possibility. It was open to the learned Chief Commissioner to find that what incapacitated the appellant in 1998 was an adjustment disorder which resulted from the depression that incapacitated her in 1994. Upon making a finding that the incapacitating disease in 1998 was a new adjustment disorder, rather than the old depression, the learned Chief Commissioner was obliged to consider whether or not the adjustment disorder resulted from the 1994 depression. The Tribunal's fact-finding task is not constrained by pleadings. The Tribunal is not obliged to choose between the competing contentions of the parties, but can make findings that are inconsistent with the case of each party.
The fact-finding agenda that the learned Chief Commissioner set for himself and followed appears from the following passage in his reasons:
"The first issue to be determined is whether or not the worker has suffered an injury (which is a disease) and if so on what date this disease was suffered. Then it must be determined whether or not the disease, so suffered, arose out of and in the course of the worker's employment and to which her employment contributed to a substantial degree and if so, whether or not entitlement to compensation is excluded by application of Section 25(1A)."
It can be seen that the learned Chief Commissioner assumed that, upon making a finding as to the nature of the disease that incapacitated the appellant in 1998, it necessarily followed that he had to make a finding as to when she suffered that disease, ie, as to the date when the injury constituted by that disease was deemed by s3(5) to have occurred. But no such finding would have been necessary if it were found that the 1998 incapacity resulted from an adjustment disorder which in turn resulted from the depression suffered by the appellant in 1994. The passage I have quoted therefore indicates an error of law on the part of the learned Chief Commissioner.
Although the learned Chief Commissioner referred to Baker v Dixon (supra), he did not mention the point that an incapacity can result from a disease or other injury which in turn can result from an earlier disease or other injury. He referred to that case as authority for the proposition that the words "aggravation", "recurrence" and "acceleration" no longer have any part in the law of workers' compensation in this State, and for the proposition that it is not until a worker becomes incapacitated that he or she can claim to have suffered a relevant injury or disease arising out of and in the course of his or her employment.
Once the learned Chief Commissioner determined that the disease that incapacitated the appellant in 1998 was an adjustment disorder, he immediately preceded to determine the date when that disease was deemed by s3(5) to have occurred. Such a course was only appropriate if it was the suffering of the injury constituted by that disease that entitled the appellant to compensation. Similarly, he considered the applicability of s25(1A) in relation to the onset of the 1998 adjustment disorder when such a course was only appropriate if that disease did not result from the 1994 depression. He did not address the question whether it was the suffering of the adjustment disorder in 1998 or the suffering of the depression in 1994 that the 1998 incapacity ultimately resulted from, and thereby erred in law.
I have therefore decided to set aside the order of 27 September 1999 and to remit the matter to the Tribunal for rehearing by a different commissioner.
0
2
1