Wakefield v Boral Resources (Tasmania) Ltd
[1999] TASSC 131
•30 November 1999
[1999] TASSC 131
CITATION: Wakefield v Boral Resources (Tasmania) Ltd [1999] TASSC 131
PARTIES: WAKEFIELD, Wayne Edward
v
BORAL RESOURCES (TASMANIA) LTD
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: LCA11/1999
DELIVERED ON: 30 November 1999
DELIVERED AT: Hobart
HEARING DATES: 22 November 1999
JUDGMENT OF: Underwood J
CATCHWORDS:
Workers Compensation - Proceedings to obtain compensation - Evidence and onus of proof - Onus of proof - Referral pursuant to the Workers Rehabilitation and Compensation Act 1988, s77 - Onus on person who refers - Standard of proof on the balance of probabilities.
Workers Rehabilitation and Compensation Act 1988 (Tas), ss49(2) and 77.
Aust Dig Workers Compensation [150]
Appeal and New Trial - Appeal - General principles - In general and right of appeal - When appeal lies - Error of law - Failure to give adequate reasons for decision - What constitutes.
Workers Rehabilitation and Compensation Act 1988 (Tas), s77.
Burgess v Umina Park Home for the Aged (1993) 2 Tas R 246, followed.
Aust Dig Appeal and New Trial [6]
REPRESENTATION:
Counsel:
Appellant: R J Howroyd
Respondent: R J Lyon
Solicitors:
Appellant: Bennett Howroyd
Respondent: Page Seager
Judgment Number: [1999] TASSC 131
Number of Paragraphs: 58
Serial No 131/1999
File No 11/1999
WAYNE EDWARD WAKEFIELD v
BORAL RESOURCES (TASMANIA) LTD
REASONS FOR JUDGMENT UNDERWOOD J
30 November 1999
Introduction
This is an appeal from an order of the Workers Rehabilitation and Compensation Tribunal dismissing the appellant's claim that an account from the Royal Hobart Hospital for hospital services was necessarily incurred as a result of an injury sustained at work. The amount of the account was $3,480. It was for in-patient hospital treatment given to the appellant following his admission to Ward 6A at the Royal Hobart Hospital on 6 November 1997. The reasonableness of the charge was not in issue. What was in issue was whether the expense had been "necessarily incurred by the worker as a result of his injury" as is provided by the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s75(1)(a).
Some background
On 22 February 1995, the appellant suffered an injury at work. According to a medical report in evidence before the Tribunal, the accident occurred while the appellant was erecting a crusher. A piece of steel rod, on which he was standing, broke, and he fell, catching his right thumb in a steel girder cross-section. In the accident, the appellant suffered a crush injury to the thumb, a sore right shoulder and a sore right arm and neck. Liability to pay compensation was not disputed.
The appellant's case in the Tribunal was that since the accident he has suffered continuously from pain and restriction of movement in the right upper limb. The appellant claimed that the pain and restriction of movement and their sequelae necessitated psychiatric treatment and counselling.
On 6 November 1997, the appellant was admitted to Ward 6A at the Royal Hobart Hospital with a diagnosis of major depression and suicidal ideation. He remained in hospital for six days. Dr Mathew, his treating psychiatrist, considered that there was a risk of the appellant taking his own life if he was not admitted to hospital. The Tribunal was satisfied that the appellant was at risk of "self-harm" on 6 November 1997 and that accordingly the admission to hospital was necessary. Dr Mathew and the appellant's treating psychologist, Ms Fitzgerald, were of the opinion that the appellant's major depression and suicidal ideation were causally linked to the injury sustained at work on 22 February 1995. Dr Sale, consultant psychiatrist called by the respondent, did not agree. He said that he was unable to express an opinion with respect to the cause of the appellant's major depression which led to his admission to hospital. He thought that it might have been due to some unrelated event, but he was unable to identify any such event.
The issue for the Tribunal was whether the hospital account was necessarily incurred as a result of the injury.
Ground 1 of the appeal
Ground 1 of the appeal raises a threshold question. It provides:
"1 That the Tribunal misdirected itself as to the onus of proof which was on the employer."
The appellant's entitlement is provided for by the Act, s75(1) which relevantly provides:
"75 ¾ (1) Where an employer of a worker is, pursuant to section 25, liable to pay compensation in accordance with this Act, the employer is, subject to this section, liable to pay as compensation to the worker or his dependants ¾
(a)the reasonable expenses necessarily incurred by the worker as a result of his injury for medical services, hospital services, nursing services, constant attendance services, rehabilitation services, and ambulance services; and
(b)…"
The jurisdiction of the Tribunal to determine the dispute arose from the Act, s77 which provides:
"77 ¾ Any question whether any claim for payment under this Division is a proper claim, or as to the reasonableness of the amount of such a claim or the necessity for the medical services or rehabilitation services which are the subject of the claim, may, if not settled by agreement, be referred by the worker, the employer of the worker, or the licensed insurer of the employer to the Tribunal for determination."
In its reasons for judgment, the Tribunal did not expressly refer to the onus of proof, but it is evident from those reasons that the Tribunal proceeded upon the basis that the onus of proof lay upon the appellant.
In support of ground 1 of the appeal, Mr Howroyd, for the appellant, submitted that the onus was on the respondent to establish that the medical service was not causally related to the compensable injury. Mr Howroyd relied upon the Act, s49(2) which provides:
"49 ¾ (2) In proceedings before the Tribunal ¾
(a)the onus of proving an initial entitlement to a payment of compensation to a worker or the dependants of a worker lies on the worker or those dependants; and
(b)the onus of proving that a worker is no longer entitled to the payment of compensation lies on the employer."
Section 49(2) appears in the Act, PtV. By virtue of s7A, the proceedings before the Tribunal were governed by the provisions of the Act, PtV. Section 7A provides:
"7a ¾ Where in this Act it is provided that any claim for compensation or any dispute relating to a claim for compensation may or must be referred to the Tribunal by any person, a person who refers a claim for compensation or a dispute relating to such a claim to the Tribunal in pursuance of such a provision must do so in accordance with section 42 and the provisions of Part V apply to the determination, resolution or review of the claim for compensation or dispute."
Mr Lyon submitted that s49(2)(b) had no application to the proceedings before the Tribunal because no issue arose in those proceedings of whether or not the appellant was "no longer entitled to the payment of compensation". The issue was whether the medical service was causally related to the injury at work.
The Act, PtVI, concerns the amount of compensation that is payable to a person entitled to compensation and specifies the conditions precedent to payment. Division 1 concerns weekly payments and lump sum payments. Division 2 concerns medical services and the like, burial costs in the case of death, and travelling expenses. Medical services and the like are "compensation" because s75(1), which imposes the liability to pay the cost of these services, does so by making the employer "liable to pay as compensation to the worker or his dependants" such costs. Notwithstanding this, I accept Mr Lyon's submission that these proceedings, brought pursuant to the Act, s77, were not governed by the Act, s49(2).
In a case where liability to pay compensation has been determined in favour of the worker, but a dispute with respect to the payment of medical expenses has arisen, the following issues may arise on a referral to the Tribunal by virtue of the provisions of ss75(1) and 77:
(a)whether the claim is a proper claim;
(b)was it reasonable?;
(c)was it necessarily incurred?;
(d)was it incurred as a result of the compensable injury?
Unlike claims for weekly payments and lump sums which usually concern payments to be made in the future, no claim can be made pursuant to s75(1) unless the expense has been incurred. It is a little difficult to understand what is meant by the reference in s77 to "a proper claim", but there was no suggestion in this case that the claim was not a "proper" one. At all events, the issue referred to in s49(2)(b), viz, is the worker any longer entitled to the payment of compensation, cannot arise upon determination of claims made pursuant to s75 and referred to the Tribunal pursuant to s77. Accordingly, it follows that s49(2)(b) had no application to the hearing before the Tribunal in this case.
The same can be said with respect to a case where constant attendance is necessary. Pursuant to s75(3) the Tribunal may be called upon to determine:
"(a)the necessity for such services;
(b)the period for which such services are to be provided; and
(c)the level of payments which it considers to be reasonable and appropriate for such services."
The issue set out in s49(2), whether a worker is no longer entitled to the payment of compensation, cannot arise upon a referral to the Tribunal of any one or more of the matters prescribed by s75(3). The same can be said with respect to every referral pursuant to the Act, s77.
Pursuant to the Act, s77, any question arising under PtVI, Div2, may be referred to the Tribunal by the worker, the employer, or the employer's licensed insurer. In the absence of a statutory direction, the burden of proof presumably falls upon the person who refers the question. According to Taylor, A Treatise on the Law of Evidence (12 edn), par365, this is so because the relevant question is to ask what would the result be if no evidence was given by either side. With respect to the standard of proof, there is no reason to suppose that Parliament intended the standard to be anything other than that which ordinarily governs the determination of civil disputes, namely, the balance of probabilities, see Miller v The Minister of Pensions [1947] 2 All ER 372; Davies v Taylor [1974] AC 207.
Ground 1 is not made out.
Ground 4
Ground 4 of the notice of appeal provides:
"That the Tribunal failed to give reasons why it rejected the opinions of Dr J Mathew, the worker's treating psychiatrist and Ms A Fitzgerald the worker's treating psychologist."
The issues before the Tribunal on the referral were whether, on 6 November 1997:
(a)the appellant was suffering from illness that necessitated his admission to Ward 6A of the Royal Hobart Hospital and if yes;
(b)was that illness causally related to the injury he sustained at work on 22 February 1995.
In addition to the appellant, evidence was given by Dr Jacob Mathew, Ms Anne Fitzgerald, Dr Parton, psychiatrist at the Royal Hobart Hospital and Dr Sale, consultant psychiatrist, who examined the appellant on behalf of the respondent. In addition, expert orthopaedic evidence was given by Drs Bye and Buzzard. Three inquiry agents were called to give evidence concerning video film that they took of the appellant on 12 separate occasions between 2 April 1995 and 30 July 1998. The last occasion of filming before the admission to hospital was 18 September 1997.
The video film, or extracts of it, were shown to the expert witnesses, but it is not possible to determine with certainty in every case, which part or parts were shown to whom and, consequently, to which part or parts the questions and answers relate, as the parts were not identified by either counsel or the witness in every case that the film was shown in the Tribunal.
In outline, the appellant told the Tribunal that ever since the accident in 1995, he has suffered pain in his right shoulder, arm, wrist and thumb. It was not disputed that a fracture to the thumb, caused in the accident, had healed satisfactorily, nor was it disputed that there was neither sign nor radiological evidence of the cause of this pain. The appellant said that the pain was always present, although prescribed drugs helped to "mask" it. The appellant said that the pain was "like I'd ripped my arm off". He said that he wore a brace from time to time. He said he was taking methadone for his pain because (according to him) he had become addicted to Panadene Forte. The appellant said that his sleep was seriously disturbed and that he felt depressed. In addition to controlling pain, the appellant said that he was taking prescribed medication to help him sleep and to help with his depression. Ever since shortly after the accident in 1995, the appellant had been consulting, on a weekly basis, his psychiatrist and his psychologist, as well as visiting his general practitioner. The appellant was admitted to the Hobart Clinic in 1995 and in 1996, because he was then considered to be at risk of committing suicide.
In his evidence, the appellant described how he tried to do the best he could to use his arm. He said that he did a little mowing, washed his car and "helped get a bit of wood". With respect to his thumb, he said that as soon as it is "involved in the grip, it kills me".
The appellant was cross-examined at considerable length and shown the video film of him doing several things, including unloading a trailer of firewood, apparently without difficulty. It would be fair to say that the respondent's attack on the appellant's case in the Tribunal concentrated almost exclusively upon establishing that:
(a)he was not a witness of credit;
(b)he was exaggerating the level of pain as described by him in his evidence-in-chief; and
(c)he had misled the medical practitioners whom he had seen with respect to the level of pain and the extent of the use he had of his right arm.
The Tribunal's reasons for judgment concluded:
"The crux of the worker's case therefore seems to be that it was the pain levels affecting his shoulder, arm and thumb in or about October/November 1997 which resulted in deterioration of his depressive condition and made him suicidal (given the evidence, which I accept, that he was in fact at risk of self harm on 6 November 1997). Such determination depends in this case on the history provided by the worker as there is no demonstrated physical explanation for the pain that he has complained of. Given my impression of the worker's evidence, he clearly exaggerated to a significant extent the degree of his ongoing incapacity. Based upon the evasive nature in which he gave his evidence and the clear inconsistencies between the history he has given to various doctors and the objective evidence before the Tribunal I consider this exaggeration to have been deliberate. I am therefore not satisfied to the requisite extent that in or about October/November 1997 the worker suffered pain to the extent that he alleged to his treating doctors at the time or outlined in his evidence to the Tribunal. I am therefore unable to accept evidence given to the Tribunal that the worker's crisis in November 1997 was caused by his inability to cope with his ongoing chronic pain at that time. It therefore follows that I am not satisfied that his admission to hospital at that time was necessarily incurred as a result of the accepted psychiatric or psychological illness which is causatively linked to his original injury. Accordingly the worker's application shall be dismissed."
The reasons for judgment run to 13 pages. The only other findings of fact in those reasons are:
· "I had considerable concerns as to the veracity of the worker's evidence."
· "I am satisfied on the evidence given by the worker and the video surveillance that he has not given an accurate outline to the medical practitioners as to the extent of the physical activities he can perform from day to day."
· "I am also not satisfied on the same basis that the worker suffers chronic pain to the level and extent that he alleges and as described to the various medical practitioners."
· In addition, there were some findings with respect to whether it was the appellant depicted on all of the video film. These findings are not material for present purposes.
A reading of the transcript of evidence and the exhibits discloses that this was a complex case which required the making of a considerable number of findings with respect to the expressed medical opinions, followed by a reasoned conclusion derived from those findings of fact. The reasons for judgment make no such findings and provide no such reasoned conclusion. The medical evidence makes it clear that a determination of whether the admission to hospital on 6 November 1997 was causally related to the injury almost three years earlier, involved a lot more than simply whether the appellant had "exaggerated to a significant degree the extent of his ongoing incapacity".
Principally, the reasons for judgment consist of a summary of the evidence given, expressed in the present tense, eg, "he says at that time he had no other personal or medical problem that could have contributed to his condition. He says that in 1995 and 1996 …". Nowhere in the reasons for judgment does the Tribunal make a finding that it accepts or rejects the evidence given by any of the witnesses, other than the appellant to the extent I have already indicated.
Orthopaedic surgeon, Howard Bye, said that the appellant gave him a history of suffering from continuous pain in the right arm and of not being able to do much with that arm at all. There is no clear concession from the appellant that the history Dr Bye said he gave him was in fact given by him, but there is no finding of fact with respect to this aspect of the evidence. Dr Bye saw the appellant twice, the first occasion in 1995 and the second in July 1998, eight months after the admission to hospital. At the first consultation, Dr Bye diagnosed a possible brachial plexus traction injury, but after the second consultation, he rejected that provisional diagnosis and described the appellant as suffering a "chronic pain problem". He said:
"Prognosis will depend I think on how he adapts and how he manages, he's got no structural problem in his body as I see it, to interfere with him using his limb as he wants to but I think his cortex, his cerebral cortex is deceiving [perceiving?]pain from that limb and this is where I think the pain people have got a lot to offer with any number of manoeuvres, physiotherapy, relaxation, graded return to work, all that sort of thing, are all I think what one has to offer him. He doesn't need operations or plasters or rigid physiotherapy. If that happens I'd be fairly confident that he'd be able to get back to something but that obviously involves an awful lot of education and training and appropriate work and such."
Dr Bye was then shown the video film of the appellant. He was shown film of the appellant carrying out different activities on four separate days, one of which was 18 April 1997, the day on which the appellant unloaded a trailer of firewood using both arms with apparent ease. Dr Bye said that he saw nothing significant about the action depicted on film on three of the four occasions, but with respect to the occasion of the appellant unloading firewood, he found it significant. He was asked if this led him to doubt his diagnosis and prognosis. He said:
"Oh, strongly doubting, strongly doubting, I guess my position would be resurrected if we had documentary evidence of him going to his family doctor or physiotherapist that day or the next day in agony and needing a Pethidine shot because he'd overdone it, you know, if there was some sort of hard evidence of a flare of pain but the pain syndrome described to me probably the first time but certainly the second time is inconsistent with someone casually and as I would see it, casually using their dominant [arm?] to unload a load of wood, it's not consistent unless there would be some significant repercussions even if it was a good day."
Counsel for the respondent then asked these questions and received these answers:
"What if it was the case that Mr Wakefield was able to carry out that activity on three occasions over a three day period in the same manner as you've seen him there unloading, as you've seen a person there unloading the wood, would that increase your concerns or make it even less likely? ... I haven't got a leg to stand on.
And that is in terms of the pain syndrome that you're describing? ... Yes.
So even if he said, 'Look, I was in enormous pain, I did have to go and see my general practitioner, the doctor to get some Panadeine Forte or some other pain killers' would you still be in a position where you would be saying, 'I have significant doubts, nevertheless, about the way in which this man is describing his pain syndrome to me?' ... If he did that activity and he required analgesia the next day I would feel more secure in my original diagnosis because a lot of folk, particularly country folk try and just work through things so I'd have, that would sort of help back me up if you like, what would cause me concern was the casual demeanour of use of that right arm seemed very natural. But if that activity was repeated three times over three days then that's totally inconsistent. What I saw is fairly significantly inconsistent but doing it for three days is not possible with the history and examination given to me and for where I am sitting, my diagnosis."
This matter was revisited in Dr Bye's re-examination and he then agreed that it was possible that a person could appear with natural movements whilst unloading wood if that person was masking pain with heavy drugs. The re-examination continued:
"And you'd agree wouldn't you that somebody could do that sort of activity and then suffer for it afterwards? … Oh, yes, yes, I mean that's where I see people who get themselves into a lot of trouble where they, they're having a good day so they go and do too much and then hurt themselves so they've often got to go and have something done the next day like an injection of Pethidine or off to their physiotherapist or some sort of massage or something or they might be able to care for themselves at home but I would be having difficulty if that person said, 'Oh, but the next day I was dreadful', if that person had documentary evidence of going and seeing someone well then I would be saying that possibly that person was in pain and fought through it and then paid the penalty."
With respect to this evidence, the Tribunal said at 8:
"[Dr Bye] says that given that demonstration of unloading the wood he would strongly doubt his diagnosis and prognosis insofar as the worker's injury was concerned and would need independent evidence of a major flare of symptoms subsequent to that activity to confirm his diagnosis."
There is no indication in the reasons for judgment whether there was any evidence of a major flare of symptoms following that activity. The appellant was cross-examined about whether he had unloaded firewood on two or more consecutive occasions. Two days after the day the appellant unloaded the firewood from the trailer there is about 3 minutes of film of the appellant and another man unloading wood off the back of a truck, but for almost the whole time only the head and shoulders of both men are seen. No findings of fact were made with respect to Dr Bye's opinion nor whether the appellant had undertaken the kind of work that Dr Bye said would leave him "without a leg to stand on".
Mr Buzzard, who is also an orthopaedic surgeon, examined the appellant on 11 September 1997 and 2 July 1998. Mr Buzzard said that the appellant gave him a history of hardly using his arm at all. The appellant did not clearly admit that he gave that history to Mr Buzzard, but there is no finding of fact made with respect to what history was given Mr Buzzard. Upon examination, Mr Buzzard noted that there was no muscle wasting on the right upper limb and that there were calluses on the right hand which he found inconsistent with the appellant having used his arm very little for the preceding three years.
Mr Buzzard's opinion was important to the issue in this case. He said in evidence, that having regard to the absence of objective evidence of the source of pain, and having regard to objective signs that the right arm and hand had been used to a greater extent than reported by the appellant, he considered that pain was a functional overlay. He explained that by functional overlay he meant that the pain was non-physical in origin and may be malingering or may not be malingering.
In the case of the appellant, his opinion was that there "may be malingering functional overlay at a deliberate level". On several occasions, he said that functional overlay was a matter upon which a psychiatrist, not an orthopaedic surgeon, was qualified to express a proper opinion. In cross-examination, he summarised his opinion in the following way:
"What I'm saying is and this is what I have been saying consistently is I've looked at it from the point of view of a physical problem and I've said he's got a functional problem, it may be deliberate, some of it may not, I've then pointed to what part I see as deliberate but I'm not looking at that in its totality, in other words, you need a psychiatrist to tell you whether or not it's totally deliberate."
In the reasons for judgment, the evidence of Mr Buzzard is summarised, but nothing at all is said about whether any of it is accepted or rejected by the Tribunal.
Dr Mathew said that he diagnosed the plaintiff as suffering from a Post Traumatic Stress Disorder. The reasons for judgment are silent as to whether the Tribunal accepted this diagnosis or not. I set out the following, rather lengthy, passage from the evidence-in-chief of Dr Mathew because it illustrates very clearly that the appellant's case did not simply stand or fall upon whether he deliberately "exaggerated to a significant extent … his on going incapacity":
"Now what is your general diagnosis of Wayne Wakefield? … Well it is basically post traumatic stress disorder where to the extent of depression primarily due to the injury. He developed pain, as he says, and his inability to work, frustration and lead to depression, depression went really bad. At that particular time depression was the predominant factor basically due to post traumatic stress disorder.
Now what reason do you ascribe for the depression? What is the cause of the depression? … The cause of the depression is his physical disability. He is not able to use his arm. He was not able to do things he used to do before. And constant pain, that was one of the major issues, and the disabilities associated with it and his physical disability, irritability, affecting the family and also to the extent his relationship with his wife was interfered with as well. And so there is a whole sort of scenarios that has taken place because of this. So it is not one thing, multitudes of things.
And what relationship in your opinion is there between his work injury, or his accident at work, and these things that you've just described? … Oh, very much related too.
Yes. Well when you say 'very much related' is there a direct relationship or ¾ … There is. Because according to the history that I have obtained from Wayne is that he - from the time he left school he joined the defence forces. After leaving the defence forces he has been employed all along and a man who has worked hard and provided for his family he was not able to do since the accident and his difficulties started from that time onward. There is no family history of mental illness. He never had any history of depression before this incident so it is all pointing to the fact that all this has happened since that accident.
Now in relation to him being admitted in November of 1997 to the Royal Hobart Hospital did you think at the time that there was any connection with his relationship with his wife? … I don't think. No, certainly not. It has nothing to do with that, no."
From that passage it will be seen that in Dr Mathew's opinion, his diagnosis did not simply depend on whether the appellant was deliberately exaggerating his pain, but none of the doctor's evidence was dealt with in the reasons for judgment except by way of setting it out in summary form.
Dr Mathew was cross-examined at length about the appellant's physical capacity, but he refused to be drawn into a debate about this, declaring it to be a matter for another specialty. The waters were muddied by the cross-examiner asking Dr Mathew what was his impression of the appellant's physical incapacity, rather than asking him precisely what history the appellant gave him with respect to his physical incapacity.
Dr Mathew said that the depth of the appellant's depression had fluctuated over the years since 1995 when he first treated him. He was shown parts of the video film in cross-examination. He did not alter his opinion. However, he did agree that the level of pain suffered by the appellant was an important factor in the diagnosis, but made it clear that a percentage decrease in the level of pain would not result in the same percentage decrease in the level of depression. He spoke of the initial trauma and the pain triggering off "a problem", and of the appellant not being able to do the things he had been able to do before the accident. He said that the appellant would have to achieve "at least 95% recovery" to produce some notable effect in the psychological condition. This was very important evidence in the appellant's case before the Tribunal but no finding is made with respect to any aspect of it.
The reasons for judgment provide a short, but fair, summary of the critical part of Dr Mathew's evidence after he had been shown the video film, at 5, in the following terms:
"Dr Mathew was shown the video surveillance evidence of the worker and did not accept that if the worker's physical capacity was greater than he believed that this would effect his opinion as to the cause of the depressive illness. He says that he still accepted the cause of same [sic] and that the crisis in November 1997 was triggered by the general frustration of the worker in his lack of ability to perform at the same extent as prior to his injury. He says that the alteration in the worker's level of depression had deteriorated gradually through October and November 1997 and there was no indication of any specific crisis occurring at that time."
Acceptance of that opinion by the Tribunal would have led to an order in favour of the appellant. The reasons for judgment do not state that Dr Mathew's opinion is rejected. It has been implicitly rejected by the making of the order, but no reason for the rejection is given other than the general finding about the appellant's credit that I have set out. With respect to the summary of part of Dr Mathew's evidence set out above, a bare finding that the appellant deliberately exaggerated to a significant degree the extent of his disability provides no adequate basis for rejecting Dr Mathew's opinion.
The observations just made about the failure to make any findings about Dr Mathew's evidence in the reasons for judgment can be made about the evidence given by the appellant's treating psychologist, Ms Fitzgerald. She said, and repeated on many occasions throughout her evidence, that activity and pain were not the only contributors to the depression. She thought that other issues were "equally as important" and instanced the appellant's sense of loss at no longer being able to fulfil the role of a provider for his family and no longer being able to do the things that he used to do. Of significance in her evidence was this answer:
"But, so often, it's the problem that people compare what they can do with what they used to do and even though they may improve if they don't improve to the point to be able to do what they used to be able to do they are not happy with what they're doing.
…
I would have tried to get him to see that that was an improvement. But that's a very difficult thing to do with injured people. They want to return to their pre-injury functioning, even though they may make some improvement. If it is not and they are not able to achieve pre-injury functioning they are still often very dissatisfied with that. Particularly if they're not able to sustain that increase in activity. They may find they can do something on one day but then have very high pain levels for the next two or three and are able to do very little. It's more the sustainability of their activity that I think is important."
Her opinion was that the appellant's fluctuating level of depression reached the stage on 6 November 1997 where he was at risk of taking his own life and that he required admission to hospital. She remained unshaken, even after being shown the video film, in her opinion that the cause of the appellant's then level of depression was his irritability and frustration at not being able to do what he had been able to do before the accident, his loss of self-esteem and frustration and pain.
There is nothing in the reasons for judgment to indicate what view the Tribunal took of Ms Fitzgerald's evidence other than it might be gleaned from the result that it was not accepted.
The appellant is entitled to know what part or parts of the evidence of his treating psychiatrist and his treating psychologist the Tribunal rejected and the reasons for such rejection to give him an opportunity to expose the findings and reasoning to appellate review.
In his evidence, Dr Sale said that if he had been required to make a diagnosis when he saw the appellant on 16 June 1997 he would have diagnosed "adjustment disorder with depressed mood", secondary to his accident. This diagnosis is not far removed from that of the appellant's treating psychiatrist.
After Dr Sale was shown the video, he conceded that the appellant had given him an inaccurate history with respect to the level of pain in the right arm and the use to which he could put that arm. After seeing the video film of the appellant unloading the trailer of wood, Dr Sale said:
"Well I think he probably suffers some psychiatric condition, but it's difficult to know what because the information that you're using to form a diagnosis is now suspect and so that makes it difficult to know what's wrong with this man. I've seen this man on several occasions and at times he has been clearly agitated and depressed. There is something at times wrong with Mr Wakefield, but I'm not sure what the cause of that is now and what would be the right diagnosis."
In cross-examination, he agreed that he was not able to exclude the proposition that the necessary admission to hospital was just a down turn in the overall condition of the appellant, but he believed that there must have been some external reason for this deterioration. Dr Sale was not able to identify any such reason. The cross-examination of the appellant explored the impact of an accident in which his wife had been involved and his precarious financial circumstances. The appellant denied that either circumstance had any effect upon his level of depression. None of this evidence is referred to in the reasons for judgment. Given that Dr Sale was unable to ascribe a cause to the appellant's depression, findings needed to be made about his evidence in the context of proof of the requisite causal link between the admission to hospital and the accident at work in 1995.
There is no reference, other than by way of summary recital of the evidence, to Dr Sale's evidence in the reasons for judgment. It needed careful consideration and it needed to be weighed against the evidence of Dr Mathew and Ms Fitzgerald and a conclusion expressed about what evidence was preferred over other evidence and why. Findings to the effect that the appellant deliberately exaggerated the level of his disability left untouched a substantial body of expert opinion evidence, some of which was in conflict, but all of which was of critical importance in the disposition of the issue before the Tribunal.
The failure to make findings about these matters constitutes an error of law, for apart from anything else, it deprives an appellate tribunal considering the matter raised by the notice of appeal, ground 6, viz, that no tribunal, properly instructed as to the law and acting reasonably, could have made the order that was made.
In this context, I venture to repeat what I said in Burgess v Umina Park Home for the Aged (1993) 2 Tas R 246 at 262:
"It is now well established that persons acting judicially have a duty to give adequate reasons in appropriate cases for their decisions. See Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Sun Alliance Insurance v Massoud (1989) VR 8; Palmer v Clarke (1989) 19 NSWLR 158; Pettitt v Dunkley (1971) 1 NSWLR 376; Stojkovzki v Fitzgerald (1989) WAR 328. Relevant to the present matter, the obligation to give adequate reasons was, as Moffit JA said in Pettitt vDunkley (supra) because 'where an appeal is provided, the trial at first instance does not exhaust the rights which parties may have.' In Stojkovzki v Fitzgerald (supra) it was held that appealable error occurred if there had been a failure to comply with the duty to state the issues involved and the critical findings of fact thereon or to disclose the reasons for the conclusion reached. All these matters are essential for the determination of the parties' rights in the appeal court. This common law duty is enshrined in the Workers Compensation Act s61(3) which requires the commissioner to provide a statement in writing of his reasons for making a determination in respect of a claim for compensation other than one made by consent. Of course, in short simple cases the reasons need not be elaborate but, in each case, they must be sufficient to enable the parties to ascertain what facts were found, which of the arguments put to the commissioner were accepted and which were rejected and what law was applied to arrive at the ultimate determination."
The task of the Tribunal was far from easy in this case. The complexity of the expert psychiatric opinion evidence, its relationship to the orthopaedic evidence and the evidence of the appellant, called for the marshalling of that evidence into categories. With respect to the non-expert opinion evidence, a number of critical findings ought to have been made with respect to the level of pain suffered by the appellant and the degree of use to which he was able to put his arm immediately prior to his admission to hospital on 6 November 1997. Until that was done, it was not possible to scrutinise the expert medical opinion evidence to enable findings to be made with respect to the weight that should have been given to each of those opinions. Until there was an expression of view about which opinion was preferred and why, the reasoning could not proceed to answer the ultimate question of whether it was more probable than not that the hospital bill was for hospital services "necessarily incurred by the worker as a result of his injury" suffered on 22 February 1995.
Conclusion
Ground 4 of the notice of appeal is made out. Ground 2 ¾ "That the Tribunal failed to apply a commonsense approach to the issue of causation" ¾ is subsumed by ground 4. Grounds 3 and 5 raise questions of fact and not questions of law.
The appeal is allowed. The order of the Tribunal made on 13 January 1999, that the worker's application be dismissed is quashed. It is further ordered that the appellant's referral dated 27 November 1997 be remitted to the Tribunal for hearing and determination by another Commissioner in accordance with law.
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