Re Peter Vardis v the Commonwealth of Australia [1985] FCA 9 (1 February 1985)

FEDERAL COURT OF AUSTRALIA

Re: PETER VARDIS
And: THE COMMONWEALTH OF AUSTRALIA
No. ACT G 8 of 1984
Workers' Compensation

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.

CATCHWORDS

Workers Compensation - appeal on questions of law from Administrative Appeals Tribunal - Whether only conclusion open on the material before the Tribunal was that applicant was, or was deemed by the operation of section 26 of the Compensation (Commonwealth Government Employees) Act 1971 to be, totally incapacitated for work - Fitness for work - Availability of work

Administrative Appeals Tribunal Act 1975, s.44(1)

Compensation (Commonwealth Government Employees) Act 1971, s.26

HEARING

CANBERRA
1:2:1985

ORDER

1. The appeal be dismissed.

2. The applicant pay the respondent's costs of the application.

DECISION

A party to a proceeding before the Administrative Appeals Tribunal ("the Tribunal") may appeal to this Court, on a question of law, from any decision of the Tribunal in that proceeding (sub-section 44(1) of the Administrative Appeals Tribunal Act 1975). Pursuant to that provision Peter Vardis ("the applicant") has appealed to the Court from a decision of the Tribunal given on 27 February 1984 upon an application by him for the review of a determination by a delegate of the Commissioner for Employees' Compensation ("the Commissioner") that the respondent, the Commonwealth of Australia, is not liable to pay compensation under the Compensation (Commonwealth Government Employees) Act 1971 ("the Act") "in respect of any total incapacity for work or medical expenses incurred by the said Peter Vardis on or subsequent to the last day on which he worked at the Royal Australian Mint, that is, 17 September 1979." The Tribunal varied the determination under review by substituting "1 November 1979" for the words "last date on which he worked at the Royal Australian Mint, that is, 17 September 1979" and remitted to the Commissioner the matter of the determination of the degree of the applicant's partial incapacity for work in accordance with the Tribunal's findings. Those findings were as follows -

"(a) that the applicant is, due to the

aggravation of his bronchial asthma by
the conditions that prevailed at the
Mint and the fact that his returning to
similar employment would result in
further aggravation of his bronchial
asthma, unable to perform his former
duties or duties in a similar
environment (i.e. a dust-laden
atmosphere) whether at the Mint or
elsewhere;

(b) that the applicant has accordingly been
deprived of such employment
opportunities; and

(c) that the applicant is, so far as the
aggravation of his bronchial asthma is
concerned, nevertheless able to do
kitchen work and work of the kind he had
undertaken, before commencing work at
the Mint, in a non dust-laden
atmosphere."

2. The question of law upon which the applicant has appealed to this Court is that it was not open to the Tribunal on the material before it to reach the findings that it did. It was submitted that on that material no finding was open other than a finding that the applicant was, or was deemed by the operation of section 26 of the Act to be, totally incapacitated for work by reason of his condition of bronchial asthma to which his employment by the respondent was a contributing factor. Section 26 of the Act on which the applicant relied provides -

"For the purposes of this Part, an employee
shall be deemed to be totally incapacitated for
work if his incapacity is such that he is fitted
only for employment of a kind that is not
commonly available and employment of that kind is
not reasonably available to him."

The reference to "this Part" is to Part III of the Act headed "Compensation".

3. The Tribunal, in its reasons for decision, found that, at the time he commenced his employment with the respondent at the Royal Australian Mint in August 1974, the applicant had an underlying and dormant condition of bronchial asthma and that he suffered an aggravation of that condition due to the conditions of dust-polution under which he was required to work at the Mint. The Tribunal posed the question whether those conditions resulted merely in a temporary aggravation which ceased when, or shortly after, his employment at the Mint terminated or whether they resulted in a continuing incapacity. It was clearly envisaged that, if the latter were held to be the true position, the further question would arise whether the applicant's continuing incapacity due to the nature of his employment was total or partial, regard being had in this connection to the question whether the applicant could properly be said to fall within section 26 of the Act.

4. The Tribunal embarked upon a detailed review of the evidence, medical and non-medical. In relation to the medical evidence, the Tribunal, as it was perfectly entitled to do having heard and seen the medical winesses give their evidence, expressed itself as preferring the opinions of Dr Long and Dr May to that of Professor Ferguson. The reasons for decision then proceed -

"I therefore accept that the applicant's total
incapacity for work arising from the aggravation
of his bronchial asthma was of a temporary nature
and that if he is now so incapacitated that
incapacity does not arise from continuing
sensitization that was work-related.
Psychological reasons were suggested as one
possibility and it may be that his belief that he
is unable to work, genuinely held, is the cause
of his incapacity. But that is not a matter for
which the temporary aggravation of his bronchial
asthma by dust at his place of employment is
responsible."

The Tribunal concluded that it would be reasonable to allow a period of six weeks after the exposure ceased for the aggravation to abate.

5. Having concluded that total incapacity had ceased by 1 November 1979, the Tribunal addressed the question whether the applicant had been left with some continuing incapacity. It concluded that the applicant was not able to do work in a dust-laden atmosphere but it was unable, on the material before it, to determine the extent of the applicant's partial incapacity. That aspect of the matter was remitted to the Commissioner with the direction that the extent of the applicant's partial incapacity be determined in accordance with the findings which have already been set out.

6. In the course of reaching those conclusions the Tribunal considered section 26 of the Act, expressing itself as applying the view of that section set out by Morling J. in Anderson v. Australian Postal Commission (1981) 39 ALR 94. Some reliance was placed on the circumstance that the applicant had taken no steps to seek work since his employment at the Mint had terminated and a finding was made that the applicant was able to do kitchen work and work of the kind he had undertaken before commencing work at the Mint. The Tribunal did not regard section 26 of the Act as applying to the case.

7. In my opinion the submission that there was no material upon which the Tribunal could find that the applicant's total incapacity arising from the aggravation of his condition of bronchial asthma due to his employment conditions at the Mint ceased on 1 November 1979 cannot be sustained. Dr Long, in his report dated 1 September 1983 said -

"I believe that he was rendered totally unfit to
work in a dusty atmosphere and probably unfit to
do heavy manual work. However, I do not believe
that there is the slightest reason why he could
not do ordinary manual work in a non dusty
atmosphere. I would therefore believe that
within a couple of weeks of being taken out of
the dusty atmosphere he would have been fit for
the type of work which I have described."

The following extract is taken from Dr Long's oral evidence before the Tribunal -

"Q. What is the difference between bronchial
asthma and this chronic obstructive airways
disease?

A. Well, bronchial asthma is a condition of
reversible airways obstruction so that the
person gets an episode in which there is
constriction of the air tubes, excess
thickening of the lining of the air tubes
and excess production of mucus, and these
three things, of course, cause a great
difficulty with the air going in and out.
But it is reversible. The attack passes off
and a person may return to a normal state.
Chronic obstructive airways disease is a
condition in which there is actual damage to
the lungs so that, although it may
fluctuate, a person is not normal at any
time.

Q. So in your view, given the condition
diagnosed by you, if you remove the
aggravating influence, be it tobacco smoke
or fine dust or whatever, then the condition
itself ought to resolve?

A. That is true.

Q. In those circumstances the aggravation of
the condition ceases, does it?

A. Yes."

8. It was a matter for the Tribunal to weigh that evidence against the opinions expressed by other medical witnesses and to determine whether or not it was prepared to accept it. The Tribunal clearly accepted it. Supported as it is by that evidence, the finding of the Tribunal is not open to challenge on an appeal such as this, limited as it is to an appeal on a question of law.

9. Turning then to the applicability of section 26 of the Act to the circumstances of the present case, I am not persuaded that the Tribunal fell into any error of law. The Tribunal adopted, as the correct approach to the applicability of section 26, what Morling J. said in Anderson v. Australian Postal Commission (ibid. at p 99). It is not suggested that in doing so the Tribunal fell into error. What is submitted on behalf of the applicant is that, applying that approach, the only conclusion that was open on the material before the Tribunal was that the applicant's incapacity arising from the conditions under which he was required to work at the Mint was such that "he is fitted only for employment of a kind that is not commonly available and employment of that kind is not reasonably available to him". I am unable to agree.

10. There was evidence before the Tribunal (the oral evidence of Dr May and Dr Long and the report dated 4 August 1980 of Dr Elliott) which, if accepted, supported the conclusion that the applicant was fit for work other than work that is not commonly available. The Tribunal must be taken to have accepted and acted upon that evidence. It was submitted, however, that the Tribunal, in considering the applicability of section 26 of the Act, failed to have regard to the physical and other capacities possessed by the applicant. I do not agree. A fair reading of the reasons for decision as a whole leaves me in no doubt that the Tribunal did not regard as irrelevant to this issue the evidence that had been given concerning the applicant's age, his limited ability to speak English and his lack of skills. The weight to be given to those matters was, of course, a matter for the Tribunal and it is not for this Court to consider whether it would have reached the same conclusion as that to which the Tribunal came. In my opinion the view was open to the Tribunal on the material before it that the applicant had not been shown to fall within the purview of the section, given the limited nature of the incapacity which on the Tribunal's finding must be taken to have resulted from the conditions under which the applicant had worked at the Mint.

11. Further, the Tribunal was not bound to find that work of the kind which it considered the applicant was capable of performing was not commonly available or was not reasonably available to him. That, again, was a question of fact for the Tribunal. In my opinion the applicant has not established that there was no material before the Tribunal on which it could reach the conclusion it did.

12. Finally, it was submitted on behalf of the applicant that the Tribunal had erred in not considering the question whether the applicant's situation fell within the concept that has come to be known as "the odd lot" in the labour market. The short answer to this submission is that the Tribunal gave no consideration to that question because no issue was raised before it in that regard. In those circumstances the applicant may not now raise the question for the first time.

13. For the reasons set out above I am of opinion that the appeal should be dismissed with costs.