Ryan v Comcare - [2005] FMCA 355

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RYAN v COMCARE

[2005] FMCA 355

ADMINISTRATIVE LAW – Appeal from Administrative Appeals Tribunal – finding by Tribunal on medical evidence – appeal against Tribunal's findings – findings all on questions of fact – no error of law in findings on questions of fact – whether applicant misled about procedures at hearing – whether breach of natural justice – whether conduct of applicant consistent with claim of being misled – error of law in affirming decision of authority that not liable in the future – error not affecting decision – whether orders should be made correcting error.

Administrative Appeals Tribunal Act 1975, s.44
Safety Rehabilitation and Compensation Act 1988 (Cth), ss.14, 16, 19

Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28
Re: Refugee Tribunal; Ex Parte Aala (2000) 204 CLR 82
Rossilo v Telstra Corporation Ltd [2003] FCA 1628], 77 ALD 396
Australian Postal Corporation v Oudyn (2003) 73 ALD 659
Liu and Comcare [2004] AATA 617, 79 ALD 119

Applicant:

KERRYN RYAN

Respondent:

COMCARE

File Number:

MLG 564 of 2004

Judgment of:

Phipps FM

Hearing date:

21 March 2005

Date of Last Submission:

21 March 2005

Delivered at:

Melbourne

Delivered on:

7 April 2005

REPRESENTATION

Counsel for the Applicant:

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Ms McMahon

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The applicant's appeal filed 1 March 2004 is dismissed.
That part of the decision of the Administrative Appeals Tribunal dated 6 February 2004 which affirmed the reviewable decision of the respondent dated 9 November 2001 affirming the determination dated 21 August 2001 is set aside.
The decision is varied so as to determine that in the period 22 August 2001 to 6 February 2004, the applicant had no entitlement to compensation in respect of the claim for aggravation of sinusitis sustained on 6 March 2000 under Section 19 or Section 16 of the Safety, Rehabilitation and Compensation Act 1988.
Otherwise, the reviewable decision dated 19 November 2001 in respect of the determination dated 20 September 2001 is affirmed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG564 of 2004

KERRYN RYAN

Applicant

And

COMCARE

Respondent

REASONS FOR JUDGMENT

This is an appeal pursuant to s.44 of the Administrative Appeals Tribunal Act 1975 ("AAT Act") from a decision of the Administrative Appeals Tribunal delivered on 6 February 2004.
The Tribunal affirmed two decisions of the respondent dated

19 November 2001 which affirmed determinations made by the respondent on 21 August 2001 and 20 September 2001. These determinations related to claims made by the applicant under the Safety Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act").
The applicant filed a notice of appeal on 1 March 2004 in the Federal Court of Australia. By order made on 10 May 2004, Crennan J. transferred the appeal to the Federal Magistrates Court.
The applicant commenced work in the Family Court of Australia in 1995. She lodged two claims for compensation. On 13 April 2000, she lodged a claim for compensation for "exacerbation of asthma and sinusitis". She attributed the condition to an incident on 8 February 2000 when she was assisting with the changing of a fluorescent tube when it broke and phosphorus sprayed back in her face. She first sought treatment for this condition on 6 March 2000. On 25 October 2000, the respondent made a determination that:
i)pursuant to s.14 of the SRC Act, the respondent was liable to pay compensation for the condition of "aggravation of sinusitis";
ii)pursuant to s.19 of the SRC Act, the applicant was entitled to incapacity benefits up to 15 September 2000;
iii)
Liability was accepted for reasonable medical expenses, pursuant to s.16 of the SRC act, up to and including

22 November 2000.
On 21 August 2001, the respondent determined in respect of the applicant's claim for exacerbation of sinusitis that on and from

22 August 2001, it was no longer liable to pay compensation for the claim.
The applicant lodged a further claim for compensation dated 9 August 2001 for chemical sensitivity, particularly to perfume and stress associated with the sensitivity disorder. On 20 September 2001, the respondent determined that it was not liable to pay compensation to the applicant for "chemical sensitivity" sustained 5 December 1997. The determination said there was insufficient evidence to establish the allergy claim was work-related.
On 11 September 2001, the applicant requested a reconsideration of the determination dated 21 September 2001. On 19 November 2001, a review officer determined that the decision to cease liability in respect of the applicant's alleged condition of aggravation of sinusitis was correct and affirmed the determination of 21 August 2001.
On 2 October 2001, the applicant requested a reconsideration of the determination dated 20 September 2001. On 19 November 2001, the same review officer determined that the decision to allow the applicant's claim for chemical sensitivity was correct and affirmed the determination of 20 September 2001.
The applicant applied to the Tribunal to review the two decisions dated 19 November 2001. The Tribunal's decision on 6 February 2004 was to affirm the decision under review.
The Tribunal heard oral evidence from the applicant, Ms Lloyd, a clinical neuro-psychologist, Mr Vallance, Ear, Nose and Throat surgeon, Dr Little, an allergist (all called by the applicant) and Dr Barton, a consultant occupational physician (called by the respondent). A number of medical reports were tendered by each party.
The applicant, appearing for herself, gave extensive evidence. The Tribunal summarised the applicant's evidence. She described her work history and health up to 1997. She said that in 1997, she began experiencing an allergic reaction to perfume worn by a colleague. The colleague refused to cease wearing the perfume. The applicant was moved to another area of the building in 1998 which provided a significant improvement in her health.
The applicant enjoyed the changed duties until the incident with the broken fluorescent tube. She said that following this she developed sinus problems, headaches, nose bleeding and dizziness. She said that by April 2000, she began reacting to more fragrances. This was always at work with no problems within the home environment.
In May 2001, the applicant was moved to a different position with the Family Court and was provided with her own separate office and had a toilet designated for her personal use. She underwent various tests by Dr Little. In July 2001, a portable air purifier was provided for her.
For much of July, August and September 2001, the applicant was off work and finally ceased work completely in September 2001. She said that since then, there had been some improvement in her symptoms although she still suffers sinus symptoms, reduced memory and concentration and lack of energy.
The applicant’s sister was seriously injured in a motorcycle accident in 1986 which caused the loss of one leg and brain damage. In addition, her brother was murdered in 1988 with his attacker receiving a life sentence. She accepted that both were traumatic events but did not consider that they had caused any psychological problems. She accepted that she had suffered dermatitis as a child, an allergy to shellfish and recalled one or two earlier symptoms of blocked sinus and rhinal conjunctivitis. She accepted that a test in April 2001 showed that she had previously contracted glandular fever.
Dr Little referred the applicant to Ms Lloyd who examined her over two sessions on 5 June 2003 and 16 June 2003. A number of neuropsychological tests were administered.
The Tribunal set out a passage from a report by Ms Lloyd of 25 June 2003. Ms Lloyd reported that the applicant's physical reactions to fragrances were undoubtedly distressing and quite real to her, her cognitive profile and performances were not consistent with the diffuse damage that is associated with chemical exposure. In her oral evidence, Ms Lloyd said she believed that the applicant was fit for work although she would encounter some difficulties if exposed to perfumes.
Mr Vallance first saw the applicant on 28 September 2000. He found nothing untoward other than moderate congestion of her turbinates. On 22 March 2001, he performed a partial turbinate reduction. He did not accept that perfume or phosphorus from the fluorescent tubes could have caused irritation and rhinitis.
Dr Little saw Ms Ryan originally on 4 May 2000. Tests at that time were inconclusive for chemical or perfume sensitivity. Tests were conducted a year later in August 2001. In a letter to the applicant’s solicitors of 7 May 2002, Dr Little stated that in his clinical judgment there is a considerable emotional component to the applicant’s symptoms, to some extent understandable in view of their perceived association with her former work environment.
Dr Barton examined the applicant on 22 May 2002 and provided a report dated 23 May 2002. He said it was clear that she had a strong illness belief. He said that the condition of multiple chemical sensitivity had failed to gain widespread acceptance in the medical community. Psychological factors play a major part in the condition. He said he believed that there were features about the applicant's presentation that confirm a significant psychological basis to her complaints. He did not believe it was medically rational or plausible to suggest that a period of exposure to one particular fragrance and transient exposure to the powder from within the fluorescent tube would cause any bodily abnormality that would produce the range of symptoms and sensitivities that the applicant claimed had been a problem for some five years. Dr Barton did not believe that the applicant was incapacitated for employment, nor warranted any particular work restrictions. He did not accept that her employment had caused, contributed to or aggravated any particular medical condition.
Dr Epstein examined Ms Ryan on 9 August 2002. In his report of

27 August 2002, he said that the applicant had developed a mild Adjustment Disorder, with depressed mood and anxiety, which appear to have occurred in the context of the development of chemical sensitivities and Chronic Fatigue Syndrome which came on during the course of her employment. He said he could see no evidence that her symptoms were primarily psychologically based. He said she had developed a mild Adjustment Disorder with depressed mood in the context of struggling to cope with the chronic debilitating illness, no matter what the cause of the illness.
Dr Walton examined the applicant on 11 September 2002 and agreed with the diagnosis of mild Adjustment Disorder. He felt there was no incapacity for work on psychiatric grounds.
Dr Oldmeadow saw the applicant on several occasions in October and December 2001. He considered that she had developed Chronic Fatigue Syndrome. He felt that her family background was consistent with many patients with persisting fatigue and pain problems. He had concerns about relating symptoms to perceived perfume exposure and did not consider it possible to attribute persisting fatigue to the episode with the fluorescent tube. He said that the work situation was unlikely to have been responsible for her continuing fatigue.
The Tribunal made these findings:
16. We are satisfied on the evidence of Ms Ryan that she has a genuine belief that she has developed many and varied physical problems resulting from the development of an allergic reaction to strong fragrances and the incident of the broken fluorescent tube. However, an entitlement to compensation requires a finding that, on the balance of probabilities, she does suffer from a physical or mental injury which arose out of, or was in the course of, her employment with the Family Court. Apart from the evidence of Mr Vallance that there had been a need for partial turbinate reduction to correct some nasal obstruction, there was no objective evidence of any physical problems of Ms Ryan. Two psychiatrists diagnosed a mild adjustment disorder, but neither was prepared to attribute this to employment unless a work-related physical injury could be identified. The dominant theme of the medical evidence was that it was more likely that Ms Ryan's physical symptoms were psychologically based. Other possibilities advanced were that she had suffered from chronic fatigue syndrome, that her symptoms were the result of having had glandular fever or that the symptoms were the result of an adverse psychiatric reaction to the traumatic events in relation to her family. Although Dr Little did believe that Ms Ryan did have a physical reaction to perfume, he accepted that there was a considerable emotional component to her symptoms which could be seen as excessive and that he was unable to provide any objective evidence to support an alleged allergy or adverse reaction to perfume. All medical evidence discounted any ongoing effects from the fluorescent tube incident. Both consultant physicians, Dr Barton and Dr Oldmeadow, who examined Ms Ryan, were firm in their views that the alleged incidents in the workplace had not contributed to any medical condition. We accept their evidence. No medical evidence provided considered that Ms Ryan was incapacitated for work.
17. While again confirming our acceptance that Ms Ryan was genuine in her beliefs of having significant medical problems and their causation, we cannot be satisfied that any physical or mental injury which she may have arose out of, or was in the course of, her employment with the Family Court. At best possibilities or hypotheses have been raised but the evidence falls far short of demonstrating probabilities. It is possible that there were some short-term reactions from the fluorescent tube incident for which she received entitlement to compensation until August 2001. However, the medical evidence is against any effect of that incident beyond that date. Consequently, the decision under review should be affirmed.
The applicant set out grounds in her notice of appeal, an affidavit filed with the notice of appeal and in a Statement of Facts and Contentions. She alleged two grounds:
a)medical reports and verbal evidence given by medical practitioners to the Tribunal supported her claim that her illness was related to work;
b)she was misled because she was informed at a directions hearing by Ms Stratos of the Australian Government Solicitor and Mr Handley, Senior Member of the Tribunal, that at the final hearing only verbal evidence could be relied on, that written medical reports could not be relied on. If she had not been misinformed, further written evidence would have been provided to the Tribunal for its consideration.
Section 44 of the AAT Act provides that a party to a proceeding before the Tribunal may appeal from any decision of the Tribunal on a question of law. The applicant's first ground does not raise a question of law. The respondent is liable to pay compensation to a person in the position of the applicant who suffers an injury or aggravation of an injury arising out of, or in the course of, the employee's employment (Section 14SRC Act and definition of "injury" in s.4(1)).
The Tribunal considered the applicant's evidence and the medical evidence and concluded that, on the balance of probabilities, she did not suffer from a physical or mental injury which arose out of, or was in the course of her employment. This is a finding of fact. The applicant's first ground of appeal disputes this finding of fact. Findings of fact cannot be the subject matter of appeal under s.44 of the AAT Act. There must be an error of law. The Tribunal has given its reasons for its finding of fact and, apart from the second ground of appeal, there is no criticism of the manner in which it has gone about making its finding of fact. There is no error of law.
The second ground is an allegation of denial of procedural fairness. Denial of procedural fairness can be an error of law (e.g. Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28). The applicant alleges that she was misled by statements made at the directions hearing. Statements made by the solicitor for the respondent cannot constitute a breach of procedural fairness on the part of the Tribunal.
In an affidavit sworn on 1 March 2004, the applicant says that she was told at the directions hearing that at the final hearing only verbal evidence could be relied on, that written medical reports could not be relied on as evidence. She says she submitted no written report to the final hearing believing that the Tribunal relied only on verbal evidence given at the hearing. She says that when the respondent and the Tribunal began to talk about numbering of the exhibits, she did not comprehend what was occurring.
She then says that had she had not been misinformed, written evidence would have been provided to the Tribunal for its consideration, in particular, medical notes from her General Practitioner. In her oral submission during the hearing of the appeal, she said she would have filed a medical report from Health Services Australia, there could have been a report from her own medical practitioner and she would have filed a report which showed the Family Could did not act on her complaints.
The applicant conducted her case before the Tribunal by relying on medical reports. A number of the reports are marked as applicant’s exhibits. Of these, the reports of Dr Little dated 17 May 2002 and

6 September 2002 are addressed to the applicant's lawyers, Clark & Toop, the report of Dr Epstein dated 27 August 2002 is addressed to Clark & Toop and the report of Ms Lloyd dated 25 June 2003 is addressed to Dr Little.
The transcript of the hearing shows the applicant expressing no surprise that reports were being used. For instance, Ms Lloyd was the second witness, immediately after Ms Ryan, the first witness. When asked by the presiding senior member if she had any questions initially for Ms Lloyd, the applicant's first question was:
I am just wondering, can you please comment on the areas in which you found in your report from the testing that I experienced difficulties in relation to the test you carried out?
The hearing took place over two days, 14 August 2003 and 8 October 2003. Dr Little was the first witness on 8 October 2003. At the commencement of his evidence this exchange took place (CB 203);
MS MCMAHON: Could I just ask the Tribunal, there was an indication before we finished last time that Dr Little would be asked to provide in writing the results of his tests and the methods of carrying those tests out. We haven't received that.
MS RYAN: I have to apologise. I completely forgot about that.
Whatever the applicant’s understanding was on the first day of the hearing, 14 August, she must have known by the conclusion of that day that medical evidence could be presented in the form of reports. If she did misunderstand something said by the senior member at the directions hearing, she had a period of nearly two months in which to obtain any further reports she might have wanted.
Not only is there the passage from the transcript referred to above, but on the first day of the hearing, the applicant was cross-examined about notes made by some of her general practitioners. The applicant was aware that those notes were available to the Tribunal. For instance, when asked a question about a report by Dr Oldmeadow, the applicant said that she first read what he said in his letter when she came to the Tribunal to view Dr. Mass’ notes (CB 154).
On the first day, 14 August, during cross-examination, the applicant was cross-examined about her current medical practitioners. This exchange took place (CB 158):
MS MCMAHON: Now, who is treating you now?
MS RYAN: Dr Little and I have also seen some doctors at a clinic in Bendigo.
MS MCMAHON: Who are they?
MS RYAN: I started out seeing Dr Helen Malcolm but she left the clinic and I have seen Dr Georges and the last time I needed to go there, Dr Georges was away on holidays so I saw another doctor whose name I can't remember.
MS MCMAHON: No one says you can't work, do they?
MS RYAN: Yes they do actually.

Therefore, the applicant was on notice that what she claimed her general practitioners said was challenged. She could have obtained a report from or the general practitioners notes before the date of the second hearing on 8 October. Her case did not conclude on the first day so there could be no question of her having finished her case.
Early in the afternoon of the second day (the transcript records it at 2.22 p.m.) the senior member said this (CB 241):
MR PASCOE: Well, I think you suggested before we broke, Ms Ryan, that there were some comments at least you want to make, so probably a sensible thing is to do that now and then we will hear from Ms McMahon and then you can decide after that whether you want to do it orally or in writing.
The applicant then made some oral submissions. She did not say that she wanted to obtain further evidence by way of reports or notes from her general practitioners or from Health Services Australia.
Even if the applicant misunderstood something said by the senior member at the directions hearing, that reports could be tendered at the hearing, it was known to the applicant with plenty of time to enable her to obtain any further evidence she wanted. There has been no breach of procedural fairness.
Even if what occurred was a breach of procedural fairness, the applicant has not been disadvantaged. In Re: Refugee Tribunal; Ex Parte Aala (2000) 204 CLR 82, McHugh J. said at 122, paragraph 104;
Not every breach of the rules of natural justice affects the making of a decision. The decision maker may have been entirely upheld the case for the party adversely affected by the breach; or the decision may have turned on an issue different from that which gave rise to the breach of natural justice. Breach of the rules of natural justice, therefore, does not automatically invalidate a decision adverse to the party affected by the breach. This principle was acknowledged by this court in Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145 when it said that "not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial ". Nevertheless, once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome because “[i]t is no easy task for a court...... to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome" (at 145).
The evidence shows that except for Dr Barton and Dr Walton (who saw the applicant and prepared reports at the request of the respondent’s solicitors), the doctors who gave evidence or whose reports were tendered had seen the applicant on referral from her general practitioners. The clinical notes of a number of the applicant's general practitioners were before the Tribunal. Apart from the general assertion that her general practitioners knew of her condition, the applicant has not put forward any description of the evidence the general practitioners might have given which might have made a difference to the result. The same applies to Health Services Australia. Given the number of specialist practitioners the applicant saw, their range of expertise, the period of time over which she saw them and that the clinical notes of some general practitioners were before the Tribunal, it can be said with confidence that the result would not have been different if there was the additional evidence that the applicant says she could have obtained. This is particularly so when the applicant does not set out the content of the additional evidence she claims might have been given.
There is no error of law and no breach of procedural fairness and so no basis for the applicant obtaining relief in these proceedings.
Ms McMahon, who appeared for the respondent, has identified an error of law, which, while not entitling the applicant to a reconsideration of her application for review by the Tribunal, should be corrected.
The Tribunal affirmed the decision under review, in fact two decisions both made on 19 November 2001. Both were reconsideration of determinations made earlier. One was the determination made on

21 August 2001 that compensation was no longer payable for the claim for aggravation of rhinitis and sinusitis asthma. The other was the decision made 20 September 2001.
The determination made on 21 August 2001 says:
"I have determined that on and from 22 August 2001, Comcare is no longer liable to pay compensation for your claim under any provision of the Act".
This determination was affirmed on reconsideration so that in affirming the reconsideration, the Tribunal has affirmed the decision that compensation is no longer payable "on and from 22 August 2001".
The determination made on 21 August 2001 was a reconsideration under s.62 of the SRC Act. What was reconsidered was the determination dated 25 October 2000, by which the respondent accepted liability for compensation for the condition of "aggravation of sinusitis" sustained on 6 March 2000.
The determination dated 25 October 2000 determined three things:
i)pursuant to s.14 of the SRC Act, the applicant was liable to pay compensation for the condition of "aggravation of sinusitis";
ii)pursuant to s.19 of the SRC Act the applicant was entitled to incapacity benefits up to 15 September 2000;
iii)
liability was accepted for reasonable medical expenses, pursuant to s.16 of the SRC Act, up to and including

22 November 2000.
The reconsideration of 21 August 2001 was a determination that the payment cease because the circumstances entitling payment under that section no longer existed or could no longer be made out by the claimant. The determination could only operate in respect of claims then in existence. It could not operate as a bar to future claims in respect of the injury if the circumstances under the section could be made out again in the future, or could be brought under another applicable section of the SRC Act. Rossilo v Telstra Corporation Ltd [2003] FCA 1628], 77 ALD 396 at [16-18]: Australian Postal Corporation v Oudyn (2003) 73 ALD 659 at 666-667.
In Liu and Comcare [2004] AATA 617, 79 ALD 119, the Tribunal said that the words "on and from 28 August, 2001" purport to speak in the future. For the Tribunal to affirm a decision which could not be made under the act is an error of law. The Tribunal found that while it was possible that the applicant suffered some short-term reaction as a result of the fluorescent tube incident, she received compensation until August 2001. The Tribunal found that the medical evidence did not support the effect of the incident beyond that date.
While the evidence before the Tribunal might support a finding that the applicant will suffer no ill effects from the fluorescent tube incident in the future, the Tribunal could not give a decision which purports to speak in the future. Liu and Comcare makes it clear that the decision the Tribunal should have made in respect of the 21 August 2001 determination was that the applicant had no entitlement to compensation pursuant to s.19 or s.16 of the SRC Act between

22 August 2001 and the date of the Tribunal's decision on 6 February 2004.Liu and Comcare was decided after the Tribunal's decision in this case.
Under s.44(4) of the AAT Act, the Court has power to "make such order as it thinks appropriate by reason of its decision". Section 44(5) provides that an order may be made "affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without hearing further evidence, by the Tribunal in accordance with the directions of the Court.
It would be futile to remit the matter for further hearing as there was no evidence of incapacity, or need for medical treatment, in respect of the fluorescent tube incident. No purpose would be served by having the case heard again. The result would be the same.
The respondent submitted that the Court should either exercise its discretion to refuse relief and dismiss the appeal or make an order:
a)setting aside that part of the Tribunal's decision which affirmed the reviewable decision dated 9 November 2001 affirming the determination of the Tribunal dated 21 August 2001; and
b)
vary that part of the decision by finding the applicant had no entitlement to compensation in respect of the claim for aggravation of sinusitis sustained on 6 March 2000 pursuant to s.19 of s.16 of the SRC Act between 22 August 2001 and

6 February 2004;
c)otherwise, affirm the reviewable decision dated 19 November 2001 in respect of the determination dated 20 September 2001.
The error of law identified by the respondent is not the subject matter of the applicant’s appeal. The correction of the error of law in the manner proposed by the respondent would not result in any additional expense and it would not disadvantage the applicant. Given that there is a clear error of law, and it can be corrected without error, expense or disadvantage, the proper thing to do is to make an order correcting the error without a further hearing by the Tribunal, and therefore without remittal.
In terms of the applicant's appeal, there has been no error of law shown, so it will be dismissed.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate:

Date: 7 April 2005