Re Australian Telecommunications Corporation v Kim Allison Davis [1991] FCA 339; 30 FCR 467/14 Aar 99 (1 August 1991)

FEDERAL COURT OF AUSTRALIA

Re: AUSTRALIAN TELECOMMUNICATIONS CORPORATION
And: KIM ALLISON DAVIS
No. Q G166 of 1990
FED No. 446
Administrative Law
[1991] FCA 339; 30 FCR 467/14 AAR 99

COURT

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Heerey J.(1)

CATCHWORDS

Administrative Law - appeal from a decision of the Administrative Appeals Tribunal - award of compensation for work related aggravation or acceleration of asymptomatic, pre-existing medical condition - conflicting medical evidence - whether appeal raises a question of law - whether Tribunal provided adequate reasons for decision pursuant to s.43(2A) Administrative Appeals Tribunal Act 1975.

Administrative Law - form of order - jurisdiction of Administrative Appeals Tribunal to make determination as to future entitlement - s.37(1) Compensation (Commonwealth Government Employees) Act 1971.

Administrative Appeals Tribunal Act 1975: ss.43(2A), 44(1)

Compensation (Commonwealth Government Employees) Act 1971: ss.21, 27(1), 29(2)(f), 37(1) and (2)

Commonwealth Employees' Rehabilitation and Compensation Act 1988: s.124

Casarotto v Australian Postal Commission [1989] FCA 116; (1989) 86 ALR 399

Commonwealth v Smith [1989] FCA 189; (1989) 10 AAR 277

Darling Island Stevedoring and Lighterage Co Limited v Hankinson [1967] HCA 10; (1967) 117 CLR 19

Dennis Willcox Pty Ltd v FCT (1988) 79 ALR 267

Salisbury v Australian Postal Commission (1943) 43 SR(NSW) 157

HEARING

BRISBANE
1:8:1991

Counsel for the Applicant: Mr P. Bickford

Solicitors for the Applicant: Australian Government Solicitor

Counsel for the Respondent: Mr L. Stephens

Solicitors for the Respondent: Trilby Misso and Co

ORDER

The appeal be dismissed.

The applicant pay the respondent's costs of the appeal, including reserved costs (if any).

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

DECISION

The right of appeal against a decision of the Administrative Appeals Tribunal ("AAT") conferred by s.44(1) of the Administrative Appeals Tribunal Act 1975 is restricted to appeals on a question of law.

2. The present appeal in my opinion fails substantially because it does not satisfy that requirement.

3. On 25 January 1991 the AAT gave written reasons for a decision consequent upon a request by the applicant ("Telecom") under s.43(2A) of the Administrative Appeals Tribunal Act. Those reasons were as follows:
1. This is an application to review a decision of a

Delegate of the Commissioner for Employees'
Compensation dated 1 February 1988 which determined
that in the case of the applicant "no incapacity for
work or medical expenses incurred on and from 19
December 1986 are the result of the compensable injury
of 21 March 1983."
2. The matter was heard in Brisbane on 21 and 22 November
1990. The applicant was represented by Mr Stephens of
Counsel and the respondent was represented by Mrs
Francis. At the conclusion of the evidence and after
hearing the submissions of the representatives of the
parties, the Tribunal gave reasons orally for the
decision which it proposed to make. After further
submissions by the representatives of both parties the
Tribunal acceded to a request from the representatives
that they be permitted to present to the Tribunal a
draft decision in a form which they agreed to and which
reflected the findings of fact as indicated by the
Tribunal. This course was adopted and in the result
the Tribunal gave the following written decision on 22
November 1990.
(a) that the applicant has and will continue to
suffer intermittent incapacity for work and as
a consequence will incur medical expenses as a
result of the compensable injury of 21 March 1983;
(b) that the applicant is entitled to her
reasonable costs of treatment, both medical and
physiotherapy and to a reasonable time off work
to obtain treatment for that incapacity as
certified by her medical practitioners, up
until 18 May 1998;
(c) that the applicant is entitled to sick leave
and her costs of medical treatment from 19
December 1986 to date;
(d) that the respondent pay the applicant's costs
as agreed to be taxed at 75% of the Federal
Court scale on a party to party basis; and
(e) that failing agreement, both parties have
liberty to apply in writing.
3. On 27 December 1990 Mrs Francis made a request under
section 43(2A) of the Administrative Appeals Tribunal
Act 1975 to the Tribunal to furnish to her a statement
in writing of the reasons of the Tribunal for its
decision. In response to that request the Tribunal
sets out the reasons hereunder.
4. Kim Allison Davis, the applicant, was born on 18 May
1963. She joined Telecom in 1978 and has worked for
the respondent ever since. On 21 March 1983 and for
two or three days following, she was involved in the
transfer of documents from one office to another as a
result of a re-location. During the days in question
she was required to lift several heavy boxes and to
pack and unpack those boxes. The activity required a
lot of bending and lifting throughout the three or four
days during which the shift took place. By about the
end of the third day Ms Davis was experiencing pain in
her back. She has continued to suffer intermittent
back pain ever since.
5. Over the years since March 1983 Ms Davis has been
treated by numerous doctors. She has had acupuncture,
physiotherapy and she has even been asked to see a
clinical psychologist.
6. At the hearing the Tribunal was referred to numerous
medical reports and also had the benefit of hearing
evidence from two orthopaedic surgeons. The Tribunal
also had the benefit of observing and hearing evidence
from Ms Davis.
7. The Tribunal found that Ms Davis was an honest witness.
She is not a malingerer - indeed she has taken very
little time off work. Ms Davis' claims have related to
medical treatment including physiotherapy.
8. So far as the medical material placed before the
Tribunal is concerned the Tribunal found that when it
was all weighed up there was very little conflict
between the various opinions.
9. Taking all of the evidence into account the Tribunal
came to the following conclusions. Ms Davis has
developed, in the course of her growth, an S shaped
curve from side to side in her spine (a scoliosis).
This structural deformity of the spine has produced
secondary degenerative changes in the spine. The
activities of normal daily living cause the secondary
degenerative changes to give back pain from the natural
progression of the degenerative changes. Doing the
best we could with the evidence before us we came to
the conclusion that because of her scoliosis Ms Davis
would have experienced debilitating back pain in the
ordinary course of events by the time she reached 35
years of age. We accepted the medical opinion of Dr
Curtis that the lifting episodes in March 1983 caused
the condition to come to light sooner than it would
otherwise have done. As a result of the lifting
episodes in March 1983, Ms Davis has experienced
debilitating back pain from time to time from the age
of 19 years when in the ordinary course of events she
would not have experienced the said back pain until she
reached 35 years of age. The acceleration and thus the
aggravation of her ailment was contributed to in a
material degree by her employment by the respondent.
10. It is for these reasons that the Tribunal determined
that the applicant was entitled to compensation within
the terms of Commonwealth Employees' Rehabilitation and
Compensation Act 1988 until her 35th birthday which
falls on 18 May 1998.

4. Before the AAT evidence was given on behalf of the respondent by an orthopaedic surgeon, Dr James R Curtis. A report of Dr Curtis following an examination of the respondent on 5 July 1988 was tendered. He found that the respondent had a moderate fixed thoraco-lumbar scoliosis. He found amongst other things that:

1. Miss Davis suffers from backache and in addition, has
structural scoliosis.
2. Her backache is related to her injury of 21 March,
1983, in which she performed excessive lifting tasks.
(a) Her symptoms are also aggravated by prolonged
stooping, sitting and bending at work.
(b) Her symptoms are also aggravated by subsequent
prolonged sitting and stooping at work.
(c) She has subsequently developed lumbar
spondylosis in her lumbar spine secondary to
her scoliosis and this is aggravated by
prolonged sitting at work.
(d) .....
(e) .....
(f) .....
3. A contributing factor, in particular, was a mixture of
the incident of 21/3/83 together with subsequent and
previous prolonged sitting, bending and stooping.
4. The effects are of a permanent nature.

5. In a later report dated 27 August 1988 he expressed the view that she had an underlying condition which was permanent, i.e. the scoliosis and subsequent secondary degenerative change, and that the incident of 21 March 1983 had "aggravated this pre-existing secondary change and brought it to light". Dr Curtis gave evidence before the AAT. He was asked the following questions by Senior Member Muller:

Well now, in March 1983 she was apparently asked to shift some
boxes and that went on for about a week or a fortnight and she
felt pain as a result of that. That would be because she has
got the scoliosis, and the shifting of the heavy boxes would
what, some sort of abnormal strain on the deformed
spine?.....Yes, it would. It would irritate the early
degenerative changes that were present there and aggravate them.
Yes. So it would come to light, then, where it might not have
otherwise done so?.....Yes.

6. Later on Dr Curtis said:

She ultimately would be the way she is now from the natural
progression of these degenerative changes but I believe the
shifting of the boxes caused that condition to come to light
sooner than might otherwise have done.
In other words, she noticed that in 1983, instead of perhaps
1998 or whatever?.....Yes.
It would be hard to say when those changes would have come to
light but certainly not for a good few years from 1983.
Alright. So in other words, well, it might have been 1985, it
might have been 1989, hard to say?.....It is hard to say but it
would have eventually have arisen.

7. In re-examination Dr Curtis said, after pointing out that "there were district radiological changes of secondary degenerative appearances, ..... (which) more probably than not ..... would have come to light clinically within her lifetime",

I think it is probable that the symptoms would have appeared in
- at some stage, and the effects of the incident have been to
bring that forward by a number of years.
(Senior Member Muller) Could you put the number of years on
it, Doctor? It is very hard, I suppose?.....It would really be
a guess. It would be very slow.
Yes. What is your educated guess?.....Ten to 15 years would be
the minimum period - possibly 20 years.
Acceleration - sorry, what are we saying, we might be at cross
purposes?.....Well, from - had the accident not occurred in
March 1983.
Yes?.....Those symptoms - I would have expected those symptoms
to have come to light by a period between 1993 and 10 years
after that.

8. Telecom tendered a report by another orthopaedic surgeon, Dr William B Maguire, dated 29 May 1990. Dr Maguire agreed that the respondent had a fixed thoraco-lumbar scoliosis, however he expressed the following opinion.

The injury in March, 1983 appears to have been a musculo-ligamentous
strain superimposed on pre-existing spinal
pathology which would have rendered her back susceptible to
such a strain. I consider that the effects of the injury have
now ceased and would have persisted only for a period of at the
most a few weeks. A ligamentous strain of the first degree as
this would have been, would not leave any permanent effects and
would heal without after effects.
The condition has not been aggravated or accelerated by her
employment - as mentioned above the orthopaedic literature
does, to my knowledge, not contain any suggestion that such
could be the case in this type of employment.

9. Dr Maguire gave evidence and was cross-examined.

10. Before me counsel for Telecom expressly conceded that it was not put that the AAT's decision was against the evidence and the weight of the evidence or that there was no evidence to support the conclusion the AAT reached. Rather, there was an attack on the form of the reasons given. It was said that the reasons were so inadequate that they did not enable this court to determine whether there had been an error of law: Dennis Willcox Pty Ltd v FCT (1988) 79 ALR 267. In particular it was said that the AAT was wrong in saying that "there was very little conflict between the various (medical) opinions". It was said that Dr Maguire and Dr Curtis were clearly at odds and that the AAT had not given enough reasons to enable anyone to decide whether it had discharged its functions.

11. It may be that what the AAT had in mind when it referred to there being "very little conflict" was a passage in Dr Maguire's cross-examination where he conceded the possibility, albeit a very unlikely one in his view, that given an otherwise stressless life for the respondent it would have been possible for her to remain asymptomatic for up to 15 years from the date of the accident in 1983. On this view, the opinions of Dr Maguire and Dr Curtis edged closer to one another, but of course still did not meet because they differed on the degree of probability of the likelihood of the respondent remaining asymptomatic for 15 years from 1983 had it not been for the 1983 incident. However it might be thought that Dr Maguire was merely discussing the hypothesis of Dr Curtis and was not retreating from his primary contention which was that the 1983 incident merely resulted in a temporary ligamentous strain and had nothing to do with the scoliosis.

12. Even were there a full right of appeal to this court on questions of fact and law, I doubt whether the impugned remark about "very little conflict" would avail Telecom. It seems to be no more than a comment made en passant which did not form an essential part of the chain of reasoning which lead to a conclusion in favour of the respondent. But still less did it raise a question of law.

13. There was also a complaint that the AAT in its reasons did not deal with the possibility that the respondent's lumbar scoliosis may have become symptomatic in 1982. There was some evidence that she had suffered from headaches and neck pain in 1982. In submissions before the AAT, Telecom's representative said, after referring to the evidence of that headache and neck pain:

So, there may have already been an incident which triggered it
to become symptomatic before the incident of 1983, and we
submit that this is, on the balance of probabilities, what did
happen.

14. It is true that the AAT in its reasons for decision did not deal with this point. But neither did Dr Maguire. The history he took from the respondent included the 1982 headaches and neck pain but he did not advert to them in explaining the reasons for his opinion. More importantly, it was not put to Dr Curtis in cross-examination that his conclusion as to the role played by the 1983 incident was destroyed or weakened by reason of the onset of the respondent's headaches in 1982.

15. In the light of all the evidence and the way the case was conducted before the AAT, I think that this argument is met by the principle that "not every failure by the Tribunal to mention a contention on behalf of a party or to decide a question of fact that was put in issue during the hearing before it will amount to a failure to comply with s.43(2B)": Commonwealth v Smith [1989] FCA 189; (1989) 10 AAR 277 at p 282 per von Doussa J.

16. It seems to me the members of the AAT did give adequate reasons. They found facts and explained the mental process by which they arrived at their conclusion. Since the AAT was not in this case constituted as an expert medical tribunal, the members cannot in my opinion be criticised, as counsel for Telecom suggested, for a failure to "resolve" the conflict between the two medical specialists who gave evidence. The transcript shows that Dr Curtis was questioned by all the members. Presumably they were satisfied as to the explanations he gave for his opinion. It was open to the AAT to resolve the question of fact before them by preferring one witness to another, which is what they did.

17. The present case involved a conflict between medical experts as to the nature and effect of an injury said to have been suffered by a person seeking monetary compensation. This is par excellence a question of fact. Whether the AAT reached the same decision on the facts before it as this court might have done does not raise a question of law, it being conceded that this is not a case where there was no evidence to found the decision complained of, or where the decision was against the evidence and the weight of the evidence.

18. The second part of this case concerned the form of order which the AAT made. It appears that, although of course it was not a consent order, the terms of it were agreed upon by the parties' representatives, at their suggestion, as appropriate to give effect to the substantive decision. In particular I was told that the concluding phrase of para. (b) "as certified by her medical practitioners, up until 18 May 1998" was not intended, as I thought on first reading, to give a right to the respondent conditioned only on a certificate by her medical practitioner, but was rather inserted to protect Telecom by making it clear that any claim in the future would need to be supported by medical evidence.

19. Counsel for Telecom submitted before me that the AAT had no jurisdiction to make what was called a "declaratory order" as to future entitlement.

20. It was common ground that the relevant legislation is the Compensation (Commonwealth Government Employees) Act 1971 - see Commonwealth Employees Rehabilitation and Compensation Act 1988, s.124.

21. In my opinion the AAT could lawfully make the determination it did. The AAT stood in the shoes of the Commissioner for Employees' Compensation whose function was to determine all matters and questions arising under the Compensation (Commonwealth Government Employees) Act; see s.21. In the present case those "matters and questions" were in substance whether in March 1983 the respondent suffered an aggravation or acceleration of the secondary degenerative condition resulting from her scoliosis, whether her employment by the Commonwealth was a contributing factor to that aggravation or acceleration and whether that aggravation or acceleration was of a permanent nature.

22. The answers being in the affirmative, then by virtue of s.29(2)(f) the aggravation or acceleration is deemed to be a personal injury to her arising out of her employment by the Commonwealth and the Commonwealth is liable to pay compensation to her in respect of that injury in accordance with the Act: s.27(1). The relevant form of compensation in this case is compensation in respect of the cost of medical treatment in accordance with s.37(1) of the Act which provides:

37. (1) Where an injury is caused to an employee, the
Commonwealth is liable to pay, in respect of
the cost of medical treatment obtained in
relation to the injury, being treatment that it
was reasonable in the circumstances for the
employee to obtain, compensation of such amount
as is appropriate to that medical treatment
having regard to the charges customarily made
for similar medical treatment in the place
where that treatment is obtained.

23. I do not see the "matter and question" arising here as being limited to compensation for the cost of medical treatment obtained in the past, that is to say prior to the determination of the Commissioner or the AAT. The past tense ("that it was reasonable") is used because the right to compensation is to be considered after the treatment has been obtained. Where s.37(1) says that "the Commonwealth is liable to pay", the ordinary meaning of that expression is that it imposes a continuing liability to compensate for the cost of medical treatment in relation to an injury (scil. an injury arising out of or in the course of the employment of the employee by the Commonwealth: s.27(1)), subject of course to the other restrictions as to reasonableness of treatment and the amount charged. Suppose for example an employee of the Commonwealth lost a limb, the Commissioner, or the AAT on review, could determine that such injury arose out of or in the course of the employment of the employee by the Commonwealth. The Commissioner or the AAT could also determine, under s.37(1), that the Commonwealth was liable to pay the cost of medical treatment in relation to that injury. If at some time in the future the employee wished to replace or repair the artificial limb (see s.37(2)) then the determination of the Commissioner or the AAT would have established the right to compensation for the cost of medical treatment. Of course an issue might arise as to whether a repair or replacement was "reasonable in the circumstances" or whether the charges were excessive "having regard to the charges customarily made for similar medical treatment in the placement where that treatment was obtain". Such issues would be further "matters or questions" for determination by the Commissioner or the AAT. But the Commonwealth could not argue that there was no liability to compensate for medical treatment for the injury at all.

24. As I have noted, the respondent accepted that her entitlement in respect of her disablement would terminate at the estimated time in the future when the scoliosis would have produced that disablement as a result of its natural progression. There may be ground for thinking that this concession might have been unduly favourable to Telecom. In Darling Island Stevedoring and Lighterage Co Limited v Hankinson [1967] HCA 10; (1967) 117 CLR 19 the High Court was dealing with a worker's compensation claim where an incident on 3 September 1964 resulted in the collapse of an infected "honeycombed" portion of the worker's spine which contributed to an infection that subsequently caused permanent paralysis.

25. The High Court held that what occurred was an injury within the ordinary meaning and that it was not necessary to go to an extended statutory meaning of aggravation and acceleration comparable to s.29. However the High Court clearly rejected the alternative argument of the employer that the compensable incapacity was that period of incapacity between 3 September 1964 and the later date on which the disease, following its own course, would have caused similar incapacity in any event. For example Taylor J. said (at p 31):

Whilst I agree that compensation in respect of incapacity
resulting solely from the aggravation of an existing disease
must be limited to the incapacity produced by the aggravation
it by no means follows that the aggravation of a disease may
not, itself, cause permanent incapacity. This could be said to
have been the position in the present case for, if what
happened on 3 September 1964 was no more than an aggravation of
the respondent's disease, it was the aggravation of that
disease which directly resulted in the respondent's incapacity
on and after that date. In that case, again, it is beside the
point to say that if the aggravation had not occurred total
incapacity would at some later time have resulted from the
natural progress of the disease.

26. See also per Barwick C.J at pp 26-28, per Owen J. at p 34 and Salisbury v Australian Iron and Steel Limited (1943) 43 SR(NSW) 157 at pp 161-2.

27. But there was no cross-appeal on behalf of the respondent and in any event this matter seems to be equally a question of fact; see Casarotto v Australian Postal Commission [1989] FCA 116; (1989) 86 ALR 399 at p 410.

28. Two final matters. It was accepted that the AAT erred in treating the decision for review as being that of 1 February 1988. There had been an internal reconsideration resulting in a re-affirmation on 14 September 1989 of the earlier decision. It was this latter decision which was the subject of the review by the AAT. Secondly, it was also accepted before me that the applicable legislation was the 1971 Act and not the 1988 Act. However counsel for Telecom conceded, correctly in my opinion, that neither of these matters in themselves required a decision in Telecom's favour since the result would not have been any different had such errors not been made.

29. I order that the appeal be dismissed with costs, including reserved costs (if any).