Saliba, A v Comcare

[1994] FCA 877

ANTOINETTE SALIBA v COMCARE
No. G365 of 1993
FED No 877/94
Number of pages - 5
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
EINFELD J

CATCHWORDS

Administrative Law - appeal against decision of Tribunal that certain injuries not work related - appeal on ground that Tribunal ignored the weight of the evidence

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598

HEARING

SYDNEY, 2 August 1994
#DATE 18:11:1994

Counsel and Solicitor for the G.M. Galluzzo instructed by,
Applicant P.J. Livers of Slattery

Thompson

Counsel and Solicitor for the E.A. Wilkins instructed by
first Respondent L. Plater of the Australian

Government Solicitor

ORDER

1. Application dismissed.

2. Applicant to pay the respondent's costs.

3. Motion for summary dismissal dismissed with no order as to

costs.

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

JUDGE1

EINFELD J The applicant appeals from a decision of the Administrative Appeals Tribunal (the Tribunal) given on 13 May 1993 affirming a decision of a delegate of the respondent on 30 March 1992 to maintain an earlier decision on 11 November 1988 to terminate workers' compensation payments to the applicant on 10 November 1988 as a result of a fall at work on 17 November 1982. The applicant contends that she remained totally incapacitated for work after the cessation of her compensation to 24 February 1992 and that she has been partially incapacitated ever since.

1. The applicant was born in Lebanon on 16 June 1948 and migrated to Australia in 1969. She is married, though apparently separated on occasions, with 4 children. She commenced work with the Concord Repatriation Hospital as a hospital assistant on 18 March 1982. In July 1982, the applicant had 2 days off work as a result of an injury to her coccyx and left shoulder sustained while going home from work in a motor vehicle. On 17 November 1982 the applicant reported that she had fallen at work on wet bathroom tiles while on night shift, injuring the left side of her face, shoulder, hip and thigh. She said that she spat up some blood and that her nose bled. Apparently she complained to someone at work of feeling dizzy just before she slipped. She was off work in the first instance until 9 December 1982 and compensation was paid.

2. On 6 January 1983, the applicant was referred by her local doctor to Dr John Bannister then in practice as a specialist orthopaedic surgeon but now disbarred. He recorded a history of a back injury nine months earlier when she was pulling out a chair. The fall in the bathroom was said to have aggravated this injury. She complained to Dr Bannister of widespread pain and distinct limitation of movement, and was certified unfit for work. Thereafter her back was twice manipulated by Dr Bannister and she saw several other doctors, some of whom felt that she was fit for work. In July 1985 she was admitted to hospital for 10 days for traction and physiotherapy. Her complaints of pain in the back and elsewhere continued and in February 1986, she was seen by a psychologist who diagnosed a range of emotional problems arising from her accident and prescribed a course of psychotherapy. She was subsequently hospitalised and later underwent rehabilitation training to fit her for return to work on light duties, but she did not in fact return and continued to receive compensation. She was seen by a psychiatrist in April 1987 who basically agreed with the views of the psychologist more than a year earlier.

3. On 24 November 1987, a delegate of COMCARE determined that liability for compensation existed for an anxiety state with a depressive reaction and compensation continued to be paid on that basis. She was readmitted to hospital in about May 1988 for bedrest and traction and in July 1988 saw another psychiatrist who agreed that she had an anxiety/depressive state but believed that it was neither disabling nor work-related. Accordingly, on 28 September 1988, COMCARE invited the applicant's solicitors to supply evidence supporting a continuation of compensation payments. When nothing was submitted, COMCARE determined on 11 November 1988 that liability for further compensation payments should cease immediately.

4. The applicant remained off work. She saw Dr Bannister again later the same month and undertook another course of rehabilitation at Concord Hospital in 1989 and 1990. An application to the Tribunal to review the decision to terminate compensation was dismissed by consent on 2 February 1990, and after further medical analysis by several doctors, the applicant returned to work on light duties on 24 February 1992. On 13 March 1992 the occupational therapist at work recommended that she continue restricted duties until 6 April 1992. On 30 March 1992, following a request by the applicant for a review of the 1988 determination, a delegate of COMCARE affirmed the decision to terminate the payment of compensation. Then on 12 May 1992 the rehabilitation people declared her "fit for full duties full time".

5. The applicant remained at work until 25 June 1992 when she presented a certificate that she was only fit for light duties. As there were no permanent light duties available, she has not worked since but has been seen by numerous doctors who have significantly disagreed as to her condition and fitness for work. A summary of these opinions follows this judgment as a Schedule. There was other medical evidence before the Tribunal as well but I have tried to extract its most salient features.

6. The Tribunal accepted that the applicant has at all relevant times had pain in the low back and neck, whether due to organic or psychological causes, and that this pain incapacitated her for work to a greater or lesser extent. However, the Tribunal found the applicant "an unreliable and inconsistent historian", although not deliberately misleading, especially about the extent and sites of her pain. It concluded that a causal nexus between her 1982 fall at work and her pain had ceased by November 1988 and that her continuing symptoms since then have been and are due to degenerative changes unrelated to her work injuries. It found that the majority of the applicant's pain was psychogenic, with her anxiety and depression primarily caused not by any work injury but by a difficult home situation and unemployment, and her pain a manifestation not a cause of her depression.

7. The applicant's notice of appeal contended that these conclusions were against the weight of the evidence and perverse. It alleged that the Tribunal misconceived much of the important evidence and attacked the findings of degenerative changes unaffected or no longer affected by work injury, of a psychogenic cause for the majority of the applicant's pain unrelated to work injury, and that the pain was a manifestation and not a cause of her psychological condition. The notice of appeal alleged that the respondent carried an onus of proving a change of circumstances having regard to the length of time she had been paid compensation, and that the Tribunal's acceptance of medical evidence denying a causal link between her pain and her work injury was inconsistent with those payments of compensation. A motion to dismiss the appeal for want of prosecution was adjourned from its return on 17 March 1994 to the delivery of this judgment.

8. Most of the notice of appeal was not pressed, so that in fact the appeal came down to three contentions. The first concerned the Tribunal's findings of her inconsistent histories to the doctors in the light of its acceptance of her history of the injury, the subsequent continuous complaints of pain, her post-injury attempts at employment, and her domestic situation. Whilst conceding some inconsistencies and proffering explanations for them, the applicant pointed to a number of consistencies and similarities in her various histories to the doctors, and argued that these should have held sway. If I had been the tribunal of fact, this argument may well have been persuasive. But this criticism raises entirely factual matters as to which the Tribunal is the final determinant. Apart from the statutory prescription that appeals only lie on questions of law: s. 44(1) Administrative Appeals Tribunal Act 1975, this is as it should be because it was the Tribunal, not this Court, which heard the evidence, including the applicant herself and a selection of the doctors. The only way the Court could overturn the findings of fact made in those circumstances would be if the applicant were able to demonstrate that the Tribunal so completely misconceived the evidence that its factual findings were simply not available on a proper reading and assessment: Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598. The applicant did not advance such a contention because it was not possible to do so.

9. The second contention advanced was that the Tribunal should have accepted the objective evidence of the disc lesion and spondylolisthesis at L5/S1, and the degenerative changes at C6/7, and the medical evidence linking them to the 1982 employment injury. The applicant pointed to what she called the inconsistencies between the Tribunal's decision and this objective evidence but what these arguments in fact identified were conflicts in the evidence of the various doctors and the reasons why those who supported the applicant should be preferred to those who did not. I can well understand the applicant's sense of grievance that her acknowledged continuing disabilities were not accepted as sequelae of her acknowledged employment injury. In particular it is difficult to understand how the Tribunal came to prefer the evidence of doctors who either did not see the x-rays and CT scans or saw them but discounted or dismissed their suggested revelations seen and accepted by so many others. It is understandable that Dr Bannister's early views might have been doubted except that, as it happens, they were largely borne out by later radiological and neurological evidence. The very fact that a number of doctors accepted her disabilities as compensable and yet compensation was refused must itself arouse a sense of injustice and cause or aggravate anxiety. It could also provide a reason for some periodic exaggeration to doctors who were more unsympathetic and unsupportive. As Dr R.W.D. Middleton's complete rejection of the applicant's symptoms and incapacity is inconsistent with the Tribunal's own findings on those matters, it is not easy to understand why or how his conclusions were or could have been accepted. But this is a classic factfinding exercise, and a factfinding body is not required to accept all of a particular witness's evidence in order to accept some.

10. There was a strong -- it might even be called powerful -- body of evidence to support findings that the applicant had a diseased and degenerative lower back and a degenerative neck, which resulted from or were aggravated by her original employment injury, and that they have continued to incapacitate her from all or some forms of work since her compensation was terminated. There is, however, evidence the other way, and although it does not seem to me on paper to be nearly as persuasive, it is for the tribunal of fact, not for this Court, to weigh up the competing viewpoints and decide which to accept. Unlike this Court, the Tribunal did so from the inestimably more beneficial standpoint of hearing several of the doctors in person and, most importantly, the applicant herself. It is impossible to overstate the advantage this gives to the listener in a case such as this, and it would take a very special type of error to inveigle an appeal court to reverse the result thus reached. Whatever my personal inclinations I am simply not permitted to do so.

11. The third assault on the Tribunal's approach related to its linking of the applicant's anxiety state and depression to her home life, not her injury. Once again the applicant pointed to the Tribunal's almost "tiptoe" route through the evidence, avoiding or discounting the considerable body of evidence linking her psychological problems with the work injuries, and accepting the somewhat less substantial evidence disavowing the causal nexus. In my view the applicant was correct in her submission that the weight of the evidence on this aspect of the case supported a finding that her anxiety and depression had their genesis in her employment injury. Indeed she might have gone further because there was ample evidence that these conditions were exacerbated by her lengthy unemployment which was a direct result of her injuries and incapacity and in turn increased tensions at home which then further aggravated the anxiety. Such a finding or set of findings may well have entitled her to compensation for the disabling effects of these conditions.

12. Unfortunately, however, the acceptance of these arguments would not permit me to uphold this appeal. The applicant was innocently caught in a factual pincer between competing medical theses. She obviously thinks that a generous understanding approach ought to have resolved doubts in her favour, and that only an overly tough hypercritical approach would reject her claim. I should and do not assume that the members of the Tribunal were in the latter category but that they came to their conclusions because of their individual reactions to and assessments of the oral evidence they alone heard. It is not possible or appropriate for this Court to rule that that approach manifested an error of law.

13. The appeal is dismissed with costs. The motion for summary dismissal is dismissed with no order as to costs.