Re Commonwealth of Australia v Mitchell William Frankcom [1989] FCA 429 (19 October 1989)

FEDERAL COURT OF AUSTRALIA

Re: THE COMMONWEALTH OF AUSTRALIA
And: MITCHELL WILLIAM FRANKCOM
No. Q G308 of 1988
FED No. 632
Administrative Law - Workers' Compensation

COURT

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Northrop(1), Spender(2) and Pincus(3) JJ.

CATCHWORDS

Administrative Law - appeal - "question of law" - whether power to interfere with dubious factual conclusion - Commonwealth employee - test adopted by Tribunal - correctness of test.

Workers' Compensation - Commonwealth Government Employees compensation - spinal condition - whether the employment of the respondent was a contributing factor to the aggravation or acceleration of the condition - whether incapacity for work resulted from that aggravation or acceleration.

Compensation (Commonwealth Government Employees) Act 1971 s.s. 5, 27, 29, 31, 45, 46

Administrative Appeals Tribunal Act 1975

Public Service Act 1922 s.67

Delahunty v Commonwealth [1981] FCA 8; (1981) 53 FLR 9

Miles v Northern Territory Fire Services, unreported 15 March 1989

HEARING

BRISBANE
19:10:1989 Counsel for Applicant: Mr V.K. Copley, Q.C.
with Mr C.E. Holmes

Solicitor for Applicant: Australian Government Solicitor

Counsel for Respondent: Mr J.S. Douglas

Solicitor for Respondent: Messrs Hanstein McLaren

ORDER

The application be dismissed.

The applicant pay the respondent's costs of and incidental to the application, to be taxed if not agreed.

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

DECISION

The Commonwealth appeals, on questions of law, from a decision of the Administrative Appeals Tribunal made on 14 July 1988 setting aside a determination by the Commissioner for Employees Compensation that the liability of the Commonwealth to pay compensation to the respondent ceased on 2 June 1980 being the date the respondent retired from his employment because of disabilities resulting from his lumbar and cervical spine condition including disc degeneration. On 8 July 1986, the Commissioner, by a delegate, had issued his determination as follows:-

"1. On evidence before me,
(a) I find that the employment of Mitchell
William Frankcom from mid 1977 until 4 June
1979 was a contributing factor to the
temporary aggravation of a pre-existing
spondylosis of the spine resulting in
symptoms of increased pain;
(b) I find that the employment of Mitchell
William Frankcom was not a contributing
factor to any acceleration of the
pre-existing spondylosis of the spine;
(c) I am unable to find that the effects of the
temporary aggravation of a pre-existing
sponylosis of the spine resulting in
symptoms of increased pain continued to
exist beyond 2 June 1980.
2. Now therefore, in pursuance of the provisions of
the Compensation (Commonwealth Government
Employees) Act 1971, including sections 27 and
29, I hereby determine:
(a) the temporary aggravation of a pre-existing
spondylosis resulting in symptoms of
increased pain caused incapacity for work
and necessitated medical treatment and
therefore constituted personal injury
arising out of his employment;
(b) the Department of Local Government and
Administrative Services is therefore liable
to pay compensation under the Compensation
(Commonwealth Government Employees) Act 1971
in respect of that personal injury only
until 2 June 1980."

2. The respondent sought a review of that determination under the Administrative Appeals Tribunal Act 1975 and on 14 July 1988 the Tribunal made its decision as follows:-

"The Tribunal sets aside the decision under review
and remits the matter to the Commissioner for
Employees' Compensation in accordance with the
Tribunal's direction in the following terms:
That the Commonwealth is liable to pay Workers'
Compensation to the applicant in accordance with the
Act from 2 June 1980 until 30 May 1985."

3. The questions of law raised by the appeal are set out in the notice of appeal as follows:-

"2. THE QUESTIONS OF LAW raised on the appeal are:
(i) the proper construction of the terms "aggravation
... of a disease" and "acceleration ... of a
disease" as used in sections 5 and 29 of the
Compensation (Commonwealth Government Employees)
Act 1971;
(ii) whether in considering whether an acceleration of
a disease has occurred or whether an aggravation
of a disease continues to occur it is proper to
determine the question by reference to the
acceleration of the consequences of the disease."

4. In order to understand the questions raised by this appeal, reference should be made to the relevant provisons of the Compensation (Commonwealth Government Employees) Act 1971, ("the Act"). Section 27 of the Act imposes an obligation on the Commonwealth to pay compensation to an employee if personal injury "arising out of or in the course of the employment" of the employee is caused to that employee. The meaning to be given to the word "injury" in the Act excludes "a disease or the aggravation, acceleration or recurrence of a disease". In the Act, the word "disease" is given an extended meaning and includes "any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development". The gap in these provisions is filled by s.29 of the Act which provides in substance that in specified circumstances the contraction or the aggravation, acceleration or recurrence of a disease is to be deemed an injury to the employee "arising out of the employment of the employee" by the Commonwealth. For the purposes of the facts of this appeal, the relevant parts of s.29 are set out:-

"29(1) Where-
(a) an employee ... suffers an aggravation,
aceleration or recurrence of a disease; and
(b) any employment of the employee by the
Commonwealth was a contributing factor ... to
the aggravation, acceleration or recurrence ...
whether or not ... the aggravation,
acceleration or recurrence was suffered in the
course of that employment,
the succeeding provisions of this section have effect.
(2) If-
(a) ...
(e) the total or partial incapacity for work of the
employee,
results ... from the aggravation, acceleration or
recurrence of the disease ... then for the purposes of
this Act, unless the contrary intention appears-
(f) ... the aggravation, acceleration or recurrence
... shall be deemed to be a personal injury to
the employee arising out of the employment of
the employee by the Commonwealth; and
(g) ... the date of the commencement of the
incapacity ... shall be deemed to be the date
of the injury.
(3) ..."

5. Under sub-section 5(11) of the Act, the incapacity of an employee shall be taken to have resulted from an aggravation, acceleration or recurrence of a disease suffered by the employee if the aggravation, acceleration or recurrence contributed to the incapacity.

6. Section 45 of the Act contains provisions relating to the compensation to be paid where the injury results in the employee being totally incapacitated for work while s.46 contains the corresponding provisions relating to where the injury results in the employee being partially incapacitated for work.

7. Reference should be made also to sub-sections 31(4) and (5) of the Act, the relevant parts of which are:-

"(4) An incapacity for work ... by an employee shall
be taken for the purposes of this Act to have
been contributed to ... by an aggravation,
acceleration or recurrence of a disease, if, but
for ... that aggravation, acceleration or
recurrence ... -
(a) the incapacity ... would not have occurred;
(b) ...
(5) This section shall not be construed as limiting
by implication the generality of the provisions
of section 29."

8. The respondent was born on 31 May 1920. He commenced employment with the Commonwealth in October 1935. Normally he would have retired at age 65 on 30 May 1985. In fact, pursuant to s.67 of the Public Service Act 1922, he was retired on the ground of invalidity on 2 June 1980. At the time he was retired he held the position of Assistant Secretary (Property) in the Central Office of the Department of Local Government and Administrative Services. Over many years he suffered from a disease of the spine described as spondylosis. Symptoms of the disease first required treatment in 1965. He was forced to wear a lumbar brace for a number of years. He spent long periods on sick leave confined to bed. In 1969 he underwent a laminectomy which provided some relief. In 1977 he underwent a further operation on his lumbar spine. On 5 June 1979 he commenced sick leave which continued until he was retired on 2 June 1980.

9. Some four and a half years after he retired on the basis of the disease from which he was suffering, the respondent made an application for compensation under the Act. The application, dated 7 December 1984, was as follows:-

"My claim is that I suffered an aggravation and/or
acceleration of a disease - spondylosis - to which
employment by the Commonwealth was a contributing
factor, and that total incapacity for work resulted
from and I obtained medical treatment in relation to
that aggravation. Therefore the aggravation should
be deemed a personal injury arising out of my
employment by the Commonwealth. The aggravation
contributed to the incapacity, as the incapacity
would have commenced at a significantly later time
but for the aggravation, therefore the incapacity
resulted from the aggravation."

10. On the material presented, a delegate of the Commissioner made the determination set out earlier in these reasons. The respondent sought a review of that determination by the Tribunal. The Tribunal, on the material presented to it, made the following finding:-

"14. I am satisfied on the whole of the medical
evidence that this worker suffered from an underlying
spondylosis having a constitutional and/or genetic
origin - a kind of "eggshell back" - in no sense
caused by his employment. However, I am also
satisfied that the nature of his employment caused the
condition to become more painful, to the point where,
some time in 1979, the pain brought on by movement
made continued employment of the kind provided by the
employer no longer bearable, and he was advised to
resign. This finding leads to the conclusion that the
end-stage of his working life was reached sooner than
it otherwise would have been by the natural
progression of his disease had it not been repeatedly
provoked by the conditions of his employment. On this
finding, I hold that the applicant suffered an
"injury" arising out of or in the course of his
employment, viz. the aggravation and/or acceleration
of spondylosis, which aggravation and/or acceleration
led to his premature retirement. The applicant's
subsequent medical history supports the evidence that
a more tranquil lifestyle - interspersed with the
occasional game of golf on flat terrain - has enabled
him to reach some kind of acceptable "settlement"
with his condition."

11. The Tribunal then concluded:-

"... As I understand the law, a worker ceases to be
entitled to compensation under the Act at the point
where any aggravation or acceleration due to the
employment has merged with the natural progression of
the disease, so that any disability is henceforth
solely attributable to the underlying disease process,
unaffected by any employment injury. Applied to this
case, whilst the evidence has not established a cause
between the employment and the disease, although it
was proved to my satisfaction that the nature of the
work was a cause in this man's premature retirement.
His right to compensation therefore continues until it
can be shown that the natural progession of the
disease, unaffected by the employment, has supervened
and become the causa causans of his incapacity. The
reason for that is that the employment injury has
ceased to produce an incapacity which would not
otherwise have been there. Applied to this case, the
punctum temporis when the effects of the employment
injury can be regarded as having been "spent" can only
be guessed at. Dr Scott-Charlton asserts that this
man's work "was aggravated by his disease and his
retirement therefore made necessary by that aggravated
disease when he did retire, instead of five years
later, as would have been the case if he had not been
an arthritis victim." Dr Corry, the respondent's
expert witness, put it more cautiously:
"I think that is quite possible, if he had
been doing a different sort of job that
allowed greater flexibility of movement and
avoided some of the other activities that
caused pain, that he could have continued in
that job, for certain."
... In the circumstances, I find that it has been
established on the probabilities that the applicant
could have carried on - given different conditions of
employment - until he would have reached normal
retirement age. In other words, his retirement was
accelerated by five years by the conditions of his
employment."

12. Unfortunately, the Tribunal, in its reasons, does not refer to any of the relevant sections of the Act as set out in these reasons. The Tribunal did not refer to the provisions of s.29 of the Act which provide that where any employment of the employee of the Commonwealth was a contributing factor to the aggravation, acceleration or recurrence of a disease and incapacity for work results from that aggravation, acceleration or recurrence, then the aggravation, acceleration or a recurrence is "deemed to be a personal injury to the employee arising out of the employment". The Tribunal found that the respondent "suffered an 'injury' arising out of or in the course of his employment", words taken from s.27 of the Act. Section 29 should have been referred to in order to pose the correct question to be considered. The test based on s.29 "is a much less stringent one" than that based on s.27; see Delahunty v Commonwealth [1981] FCA 8; (1981) 53 FLR 9 at pp 13-14, a lengthy passage that should be read but is different from that based on s.27. See also Miles v Northern Territory Fire Services, unreported, 15 March 1989 per Northrop, Spender and Pincus JJ. The Tribunal made no reference to s.31. On one view the respondent was incapacitated for work from 5 June 1979 when he went on sick leave. That was twelve months before he was retired.

13. The question that the Tribunal should have posed was whether the employment of the respondent was a contributing factor to the aggravation or acceleration of the spondylosis. If the answer to that question is yes, the next question that should have been posed was whether total or partial incapacity for work of the respondent resulted from that aggravation or recurrence of the spondylosis. If that question is yes, it was necessary for the Tribunal to determine whether the incapacity was total or partial and apply either s.45 or s.46 of the Act. Implicit in this question is the question of when the incapacity commenced.

14. A fair reading of the reasons of the Tribunal shows that the issues arising from the fact of the respondent's retirement due to invalidity in June 1980 when his normal date of retirement would have been in May 1985 dominated the thinking of the Tribunal. Having regard to that factor it is difficult to form the view that the Tribunal gave a correct answer to a question that was never asked. In many respects, the medical evidence was not directed to the proper question with the result that confusion arising from the date of the retirement due to invalidity and the normal retirement date so clouded the issue that a correct answer could not be given to the first question that should have been posed by the Tribunal. Medical evidence was not directed to the proper question.

15. The conclusion spelt out in the passage set out earlier in these reasons namely, "the nature of his employment caused the condition to become more painful, to the point where, some time in 1979, the pain brought on by movement made continued employment of the kind provided by the employer no longer bearable" is not directed to the correct question. It may well be that the pain itself was a result of the disease itself and which pain resulted in incapacity. The final conclusion that as a result "he was advised to resign" does not, of necessity follow. The question is whether total or partial incapacity for work of the respondent resulted from aggravation or acceleration of a disease. That question was not adverted to by the Tribunal.

16. The Tribunal did not consider whether total or partial incapacity of the respondent resulted from that aggravation or acceleration. It seemed to assume that because the respondent retired in June 1980 he was totally incapacitated for the period commencing on the date and expiring on his normal retirement date in May 1985. If one can be forgiven, in the circumstances of the reasons given by the Tribunal in this case, this is a non sequitur. Incapacity, if any, commenced when he took sick leave in June 1979. The medical opinions contained in the reasons set out earlier in these reasons seem to suggest that the respondent could have done work of a different kind. This would tend to suggest that partial incapacity may have resulted from the aggravation or acceleration of the disease or possibly from the disease itself. It does not follow that total incapacity resulted. In any event, retiring age may be irrelevant in considering incapacity. The Act contains provisions whereby payments of compensation may be terminated but these need not be considered in these reasons. Further, in the case of total incapacity, entitlement to compensation does not, seemingly, terminate when the employee reaches normal retiring age.

17. The questions of law raised in the notice of appeal do give rise to confusion. The first is hardly a question of law. Questions raised must be based on the facts of the particular case. The questions do not in express terms relate to the issues discussed in these reasons. At the hearing of the appeal, the applicant sought to raise issues of a general nature being much wider than those discussed above but again based on general propositions not based on facts. This is impermissible. The issues determined in these reasons were raised by the Court during the course of hearing the appeal and the parties had the opportunity to make submissions supporting them.

18. Further, the order made by the Tribunal does not state whether the Commonwealth is liable to pay compensation to the respondent under s.45 or 46 of the Act. It must be remembered that the Tribunal, in performing its functions of reviewing the determination of the Commissioner, is exercising the powers and discretions conferred on the Commissioner. It was for the Tribunal to pose the proper questions for decision and to answer them on all the material properly before the Tribunal. In its reasons the Tribunal said:-

"As I see the issue I have to decide, it comes
to this: Does the evidence adduced before me in this
hearing cause me to be persuaded - assuming the
determination made on the evidence then before the
delegate to have been justified at the time - that his
decision is wrong."

19. The Tribunal was in error in stating the issue in that form. The issue for the Tribunal was to consider the questions set out earlier in these reasons on the material properly before it. In doing this the Tribunal should have referred to the relevant provisions of the Act. If this had been done, the evidence of the medical witnesses could have been directed to the resolution of those questions. Unfortunately, the respondent appeared in person before the Tribunal and thus the Tribunal did not receive the assistance one would have expected if he had been represented by counsel. Nevertheless, it is essential that the law be correctly interpreted and applied. To a large extent, the Tribunal was led into error by its statement of the respondents case as follows:-

"The applicant ... asserts that the aggravation due
to the employment caused his premature retirement and
constitutes an "injury" as defined by the Act. Hence
this application."

20. One thing is clear. In the Act, "injury" is defined but that definition expressly excludes the aggravation of a disease. An aggravation is deemed to be an injury where s.29 of the Act applies. The Tribunal did not advert to that section.

21. In all the circumstances the appeal must be allowed and the decision appealed from set aside. The matter should be remitted to the Tribunal to be heard and determined according to law after hearing such further evidence and submissions as the Tribunal determines. The respondent must pay the applicants costs of the appeal.

I agree in the judgment of Pincus J.

I have had the advantage of reading in draft the reasons of Northrop J. I have found, to my regret, that I am unable to agree with his Honour's conclusion.

2. To avoid the confusion which may ensue from the circumstance that the appellant, the Commonwealth of Australia, is called "the applicant" in the Rules and was the respondent below, I shall call it "the Commonwealth" and its opponent "Mr Frankcom".

3. The appeal came to this Court from the Administrative Appeals Tribunal under s.44 of the Administrative Appeals Tribunal Act 1975, which allows an appeal "on a question of law". The notice of appeal identified two questions, of which the first was the proper construction of relevant statutory provisions. Of course, the fact that the Tribunal has had to apply the provisions necessarily involves that it has had to consider their proper construction and the same may be said of the proceedings in this Court. However, the notice of appeal did not identify any particular difficulty or ambiguity in the provisions requiring resolution, nor did counsel for the Commonwealth do so before us. The argument advanced on the appeal was that there was no evidence to support the conclusion arrived at, a contention which was supplemented in counsel's reply by the suggestion that certain evidence had been overlooked.

4. The second question of law set out in the notice of appeal is as follows:

"whether in considering whether an acceleration of a
disease has occurred or whether an aggravation of a
disease continues to occur it is proper to
determine the question by reference to the
acceleration of the consequences of the disease".

5. That does not appear to be a genuine legal question; if a person suffers from a disease which causes pain or disability or both and those consequences increase rapidly, that may well, in a particular case, justify a conclusion that there has been an acceleration or aggravation of the disease itself. Further, counsel for the Commonwealth did not argue the point.

6. In those circumstances, this Court's task is, at least primarily, to consider the alleged question of law which was argued. That involves a concession to the Commonwealth because the question argued was neither of those set out in the notice of appeal. However, the grounds, as opposed to the questions of law, set out in the notice fairly cover the question argued.

7. Northrop J. has analysed the relevant provisions of the statute in his reasons and I will not repeat what his Honour says about them. It is important to notice that the statute requires an answer to the question whether there was an aggravation, acceleration, or recurrence of the disease from which Mr Frankcom suffered, and the question whether the employment was a contributing factor to that aggravation, acceleration or recurrence. Further, the statute requires one to consider whether total or partial incapacity for work resulted from the aggravation, acceleration or recurrence; incapacity is taken to so result if the aggravation, acceleration or recurrence contributed to the incapacity. Lastly, the statute requires one to consider whether, but for the aggravation, acceleration or recurrence, the incapacity would not have occurred.

8. Stating the question broadly, the Tribunal had to decide whether the employment contributed to an aggravation resulting in incapacity.

9. The principal evidence for Mr Frankcom consisted in two reports by a Dr Scott-Charlton. In the first report he said that he could not assert that Mr Frankcom's work "would hasten the progress of this disease or increase its severity", but that, commonly, persisting with "work which provokes pain or increases pain for a long time does aggravate the condition which causes the pain". The doctor did not, however, apply this general proposition to Mr Frankcom. The second report said that there "can be no reasonable doubt at all that his work by causing pain accelerated and aggravated the condition causing the pain". It is difficult to reconcile that with the first report.

10. The doctor also appeared, in this second report, to support the view that Mr Frankcom's retirement was made necessary by his disease, which was aggravated by work and that he would have retired five years later if he had not been "an arthritis victim".

11. Counsel for the Commonwealth complained that the Tribunal had expressed the view that there was a "degree of unanimity" among Dr Scott-Charlton and a Dr Corry, called for the Commonwealth. It is true that Dr Corry's evidence (which the Tribunal, in its reasons, misquoted in an important respect) could hardly support the conclusion at which the Tribunal arrived, but the Tribunal's treatment of it was not an error of law and does not raise any question of law. The Commonwealth can succeed on the point argued only if there is nothing in the evidence which could support its conclusion of fact.

12. That conclusion was that Mr Frankcom suffered an injury "arising out of or in the course of his employment, viz. the aggravation and/or acceleration of spondylosis, which aggravation and/or acceleration led to his premature retirement". As Northrop J. points out, the use of the phrase "arising out of as in the course of his employment" suggests a wrong identification of the legal question before the Tribunal. The Tribunal also said that Mr Frankcom's "retirement was accelerated by five years by the conditions of his employment".

13. I find it a little surprising that the Tribunal came to these conclusions, particularly in view of the apparent discrepancy between Dr Scott-Charlton's two reports. One would have expected the Tribunal to have taken into account against Mr Frankcom the fact that the second report seems to have been prompted by a letter written by Mr Frankcom to Dr Scott-Charlton urging that the report be changed. The letter read in part:

"It is apparent from your report of 23 October 1984
that you are indicating support for my case,
particularly in supporting the late Dr Donnon's
opinion; however, I fear there is a serious risk
that other parts of the report, although I know
what is meant, could have the effect of nullifying
this. The aspect of work aggravation contributing
to my incapacity needs to be more clearly defined.
Would it be possible for you to provide a written
opinion limited to the question, whether, having
read my claim you support the above contention."

14. One might have thought that Dr Scott-Charlton's having acted in response to this exhortation should have lessened the weight of his second report, in which he said very much what Mr Frankcom had asked him to say. I also find it impossible to agree with the Tribunal's view that Dr Scott-Charlton's two opinions are not in conflict. The first said that Dr Scott-Charlton could not assert that Mr Frankcom's work would hasten the progress of or increase the severity of his disease and the second contained that assertion, in substance.

15. But these dubious views of the Tribunal, for such I think they are, raise no legal question. In my opinion, the second report, read as a whole, gives some support to the Tribunal's factual conclusion and it cannot be said that in accepting views included in the second report the Tribunal made a legal error.

16. Northrop J., in his reasons, points out that the Tribunal did not quote or even refer to all the immediately relevant statutory provisions, which are set out by his Honour and briefly summarised above. Nevertheless, in my respectful opinion, the appeal should fail, for two reasons. The first is that the appeal was neither brought nor argued on that ground. The second is that the conclusions at which the Tribunal arrived necessarily involve answering the questions which the statute requires to be answered in a way favourable to Mr Frankcom. As I understand the Tribunal's conclusions, read in their context, the view was taken that but for the aggravation of Mr Frankcom's disease due to his employment, he would have been able to carry on work for five years longer.

17. The dismissal of the appeal may seem to some an unsatisfactory outcome, as indeed it does to me. If this Court had general power to give leave to appeal from the Tribunal, I should have been in favour of granting leave and allowing the appeal. But the nature of the Court's jurisdiction in such appeals requires, in my opinion, the result I have indicated. The appeal should be dismissed with costs.