The Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Kathleen Mallaburn

[1992] FCA 85

Re: THE COMMISSION FOR THE SAFETY, REHABILITATION AND COMPENSATION OF
COMMONWEALTH EMPLOYEES
And: KATHLEEN MALLABURN
No. T G15 of 1991
FED No 85 Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY
GENERAL DIVISION
Heerey J.(1)

CATCHWORDS

Administrative Law - appeal from decision of Administrative Appeals Tribunal - respondent incapacitated for work - entitlement to compensation - whether contracted a disease or suffered an aggravation, acceleration or recurrence of a disease - whether distinction impacts upon ongoing entitlement to compensation.

Compensation (Commonwealth Government Employees) Act 1971

Commonwealth Employees' Rehabilitation and Compensation Act 1988

HEARING

MELBOURNE

#DATE 3:3:1992

Counsel for the applicant: Mr G. Mellick

Solicitor for the applicant: Australian Government Solicitor

Counsel for the respondent: Hon W.M. Hodgman QC with Miss L. Wall

Solicitors for the respondent: Wallace Wilkinson and Webster

ORDER

The appeal be dismissed with costs, including reserved costs.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The applicant appeals from a decision of the Administrative Appeals Tribunal ("AAT") constituted by Senior Member Mr A.M. Blow given on 23rd October 1991.

1. The applicant had determined that it was no longer liable to pay compensation to the respondent under the Commonwealth Employees' Rehabilitation and Compensation Act 1988 ("the 1988 Act") on and from 8th December 1988. The AAT ordered that that decision be set aside and that the matter be remitted for consideration in accordance with a direction that the respondent has at all times since 15th August 1985 been incapacitated for work as a result of a disease to the contraction of which her employment by the Commonwealth was a contributing factor and has been entitled to compensation at all times since that date pursuant to the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act") and the 1988 Act.

2. The respondent commenced work as a temporary typist with the Department of Housing and Construction 12th August 1985. She was then aged 44. For most of her working life she had worked as a typist or secretary. Before commencing work with the Department she had never suffered from any pain or injury to her arms or hands nor had she incurred any disability using typewriters, word processors or similar equipment.

3. The work she was required to do for the Department involved using an old and defective typewriter to type cardboard specification covers. On the second day in the job she experienced brief pain in the upper arm and a slight tingling around the elbow. On the afternoon of the third day she experienced sudden severe pain in the left shoulder which was so severe as to prevent her from continuing typing. The pain extended to the arm and wrist. She felt a burning sensation in her hand. That evening she was in extreme pain, could not turn the key in the door, could not use her left arm without causing pain and could not clean her teeth. The pain was prevalent in her left arm but also affected her right hand.

4. The next day she consulted a Commonwealth Medical Officer. He diagnosed "an acute RSI comprising muscle strain ... with associated tendonitis". It was his opinion that the condition was work related and that she was unfit for any work and in need of home help. As a result a delegate of the Commissioner for Employees' Compensation determined on 17th September 1985 that she was entitled to compensation under the 1971 Act. She has not worked since August 1985.

5. In late 1988 the applicant had the respondent examined by some medical practitioners, including Professor I.H. Jones who is Professor of Psychiatry at the University of Tasmania. On 15th December 1988 her compensation was terminated.

6. Before the AAT, the respondent's case was that since August 1985 she had been unfit for any work as a result of physical symptoms which she had experienced ever since her employment by the Department and as a result of that employment. The applicant contended that her physical symptoms from the 1985 injury had resolved by 8th December 1988. It accepted that she genuinely experienced pain thereafter, but said that she did so as a result of a psychiatric or psychological condition rather than as a result of any organic factors and that her psychiatric or psychological condition was unrelated to her employment by the Department in August 1985.

7. Although no psychiatric evidence was called on behalf of the respondent, it was put on her behalf, at least by the end of the hearing before the AAT, that if her incapacity for work resulted wholly or partly from a psychiatric or psychological condition, that condition was caused or contributed to by her employment with the Department.

8. The respondent's evidence before the AAT was that she has continued to experience pain in the neck, left shoulder, left arm and left hand and swelling in the right hand ever since September 1985, varying in intensity from time to time. She had also developed low back pain. Her truthfulness was not challenged by counsel for the applicant. The AAT accepted her as a witness of truth and found that she genuinely experiences pain of such intensity that she is totally incapacitated for work.

9. In a careful review of the evidence, the AAT dealt with Professor Jones' evidence as follows:
   

"He expressed the view that the applicant's pain had a substantial psychological component, but that there had probably been an organic cause for her symptoms initially, though probably for only some days or weeks. He based those opinions on his view that "the clinical picture is of diffuse pain with characteristics much more compatible with a psychiatric disturbance than with a physical one", on what he perceived to be a discrepancy between the extent of the typing work and the extent of the disability, on the lack of objective physical signs, on the fact that he had seen many similar patients for whose complaints he felt quite sure there was a psychogenic basis, on a marked sense of anxiety that he perceived in the applicant, and on the fact that she received inpatient treatment for "anorexia nervosa, abnormal personality, and neurotic symptoms including anxiety" in 1981. He believed she would have developed a pain syndrome of a similar nature whether she had done any typing work or not. He believed that she was totally incapacitated fo work as a result of her condition. He believed that her typing work was, at most, no more than a trigger which initiated a response in a predisposed individual, and that her condition was more a reaction to her "general life situation". He accepted her sincerity in her complaint of pain, and had no reason to think she was malingering. He considered she was suffering from a disorder that would technically be termed a somatoform disorder.

In his report of 24 October 1988 (T47), Professor Jones suggested that if evidence of prior symptoms emerged such evidence would either invalidate or make less likely the hypothesis that physical symptoms caused by the typing work triggered a psychological reaction. In his oral evidence, he said that such evidence did emerge, in the form of hospital notes which he did not see until shortly before the hearing, which revealed inpatient treatment for anorexia nervosa in 1981. Those notes also revealed complaints of abdominal pain which settled prior to her first referral to a psychiatrist at that time, which to Professor Jones suggested a strong possibility of the abdominal pain not having an organic basis. He said that the hypothesis that the Aust 1985 typing work determined the sorts of psychogenic symptoms was a possibility that he could not totally discount. When I asked him if he put it any more highly than that, he replied:-

"If I were a betting man I would have said symptoms of some sort would have developed, but I suppose improbable if she had never been typing, in that - well, of course she's typed before. I suppose that in relation to typing because typing has been a form experienced in the past as well and not just in relation to that job."

After noting that the respondent had not experienced any neck, shoulder, arm, wrist or hand pain prior to her employment with the Department and that no alternative organic cause for her pain had been suggested, and also taking account of four of the medical opinions which were before it, the AAT concluded that there was organic basis for the pain she experienced in August 1985 and that her evidence as to the unusually difficult nature of the typing work done by her suggested a reasonably possible cause for such an organic disorder, despite the fact that so little typing would not usually cause one. The AAT then concluded that it should reject the hypothesis that her disorder was at all times totally psychogenic. It found that she contracted a physical disorder to which her employment by the Commonwealth was a contributing factor.

1. After referring to the evidence of Professor Jones and other medical witnesses who were all of the view that psychological factors had played a large part in the pain experienced by the applicant since August 1985, the AAT continued:
   

"I accept the evidence of Professor Jones, to the extent that I find on the balance of probabilities that the respondent is suffering from a mental disorder whereby she experiences pain without any organic basis and/or pain out of all proportion to its organic basis.

I reject the hypothesis that the physical condition that arose out of the respondent's employment with Department is not casually related to the onset of this mental disorder. It would be too remarkable a coincidence for a mental disorder causing the applicant to experience pain in certain parts of the body to have developed independently of a contemporaneous physical disorder causing her to experience similar pain in similar parts, or to have replaced such a physical disorder without any apparent pain- pain-free interval.

I find on the balance of probabilities that the (respondent's) employment by the Commonwealth was a contributing factor to the contraction of this mental disorder.

If I am wrong about that and, as Professor Jones' evidence tended to suggest, there was a long-standing latent mental disorder (as distinct from a latent vulnerability to the contraction of one) which disorder would, irrespective of any pain caused by her work, by December 1988 have caused her to experience pain to such an extent as to incapacitate her for work, then the applicant would still qualify for compensation pursuant to section 29 of the 1971 Act because her employment by the Commonwealth would, in my view, have been a contributing factor to the aggravation, acceleration or recurrence of that long-standing mental disorder. The temporal connection between the applicant's work for the Department and the onset of the symptoms of her mental disorder in my view leads to this conclusion if her mental disorder was a latent long-standing one. It would be irrelevant to the issue of liability that the disorder would one day have totally incapacitated the applicant in any event, as was the case in Darling Island Stevedoring and Lighterage Co Ltd. v Hankinson (1967) 117 CLR 19."

In its notice of appeal to this court filed on 20th November 1991 it appeared the applicant's case was that there was no evidence to support a finding either that the respondent's employment by the Department was a contributing factor to the contraction of mental disorder or that her employment contributed to the aggravation, acceleration or recurrence ("aggravation etc") of a mental disorder.

1. At the hearing before me however, the applicant substantially changed its position. By amendments to the notice of appeal, for which I granted leave, it merely sought a direction that the decision of the AAT be reconsidered in accordance with a direction that the applicant has at all times since August 1985 been incapacitated for work as the result of the aggravation etc of a disease which aggravation etc was contributed to by her employment with the Commonwealth and she has been entitled to compensation at all times since that date pursuant to the 1971 Act and the 1988 Act.

2. Thus the applicant's case conceded the respondent's continuing entitlement to compensation but contended that it should be characterised as arising from an aggravation etc, as distinct from a contraction, of a mental disorder. The applicant conceded that the finding as to aggravation etc contained in the paragraph already quoted commencing "If I am wrong about that .." was open to the AAT.

3. I was told by counsel for the applicant that its concern was that it might be liable for indefinite compensation but that under the suggested variation it would only be liable to compensate the respondent as long as the aggravation etc existed.

4. I must say that this concern did not seem to me to be well founded. Whether the respondent contracted a disease or suffered an aggravation etc of a disease (assuming employment by the Commonwealth to be a contributing factor in either case) and total incapacity for work results then that contraction or aggravation etc is deemed to be a personal injury to the respondent arising out of her employment by the Commonwealth: 1971 Act, s.29 (1)(a), (b), (2)(f). The applicant thereby becomes liable to pay compensation in accordance with the Act (s.27(1)) which for present purposes takes the form of compensation during the period of incapacity resulting from that "injury" i.e. either the contraction or aggravation etc.: s.45 (1), (2). Thus whether the respondent's present admitted incapacity for work is said to arise from a contraction or an aggravation etc, it does not mean that she necessarily acquires a permanent right to compensation for the rest of her working life. At some time in the future her incapacity may cease or, having ceased, she may suffer other incapacity arising from an unrelated cause. In such events there would no longer be incapacity resulting from either contraction or aggravation etc suffered in August 1985. Needless to say, such issues, if and when they arise, would have to be be determined on appropriate evidence.

5. The other comment to be made is that, as the AAT noted, it does not avail the applicant that the respondent was suffering from a disorder which might have one day incapacitated her in any event: Darling Island Stevedoring and Lighterage Co Ltd v Hankinson (1967) 117 CLR 19.

6. Thus an analysis of this case reveals that (a) the AAT reached a conclusion that there was a liability on the applicant to compensate the respondent since the 8th December 1988 and continuing - a liability which the applicant now does not dispute - and (b) the AAT founded that conclusion on two alternative evidentiary bases, one of which the applicant now concedes was open.

7. In my opinion the AAT's decision discloses no error of law. There was evidence on which the AAT could have found that the respondent suffered from a latent vulnerability to the contraction of a mental disorder which disorder, was "triggered", to use Professor Jones' term, by the events at work in August 1985. As I read Professor Jones' evidence he conceded this possibility. The AAT was faced with the unchallenged evidence of a witness accepted as truthful that she had spent a working life as a typist without relevant pain until the three day period in August 1985 and then incurred constant pain thereafter.

8. The appeal will be dismissed with costs, including reserved costs.