FEDERAL COURT OF AUSTRALIA

SUPERANNUATION - appeal from determination of Superannuation Complaints Tribunal - decision of Trustee that member not totally and permanently disabled - complaint to Tribunal - construction and operation of Superannuation (Resolution of Complaints) Act 1993 - Tribunal required to affirm Trustees decision if satisfied decision is fair and reasonable in the circumstances - whether Tribunal misunderstood its task by determining whether in its opinion member totally disabled - appeal allowed

Superannuation (Resolution of Complaints) Act 1993 (Cth) ss 6, 11, 14(2), 32(1), 34, 36, 37, 38, 41(3)

National Mutual Life Association of Australia Ltd v Jevtovic (Sundberg J, 8 May 1997, unreported)

Briffa v Hay (Merkel J, 20 June1997, unreported)

Patricia Merle Adkins v The Health Employees Superannuatioin Trust Australia Ltd & Anor

No. TG 1 of 1997

JUDGE:          HEEREY J

PLACE:          MELBOURNE (HEARD IN HOBART)

DATE:            15 AUGUST 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.         Appeal allowed. 

2.         Matter be remitted for rehearing before the Superannuation Complaints Tribunal differently constituted.

3.         The respondents pay the applicant’s costs, including reserved costs.

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

REASONS FOR JUDGMENT

The applicant appeals from a decision of the Superannuation Complaints Tribunal (the Tribunal) given on 18 December 1996.  The Tribunal is constituted under the Superannuation (Resolution of Complaints) Act 1993 (Cth) (the Act).  The Tribunal affirmed a decision of the first respondent (the Trustee), made on 17 July 1995 and affirmed on 4 March 1996, rejecting the applicant's claim for a total and permanent disablement benefit.

The notice of appeal initially filed by the applicant contained only one ground: 

That the Tribunal failed to include in its reasons findings on material questions of fact and references to the evidence or other material on which those findings were made; and failed to resolve the conflicting medical evidence; and failed to properly disclose the reasoning process which led to the conclusion reached by the Tribunal.

In the course of the hearing of the appeal the applicant was granted leave to amend the notice by including a further ground:

That the Tribunal determine [sic] whether in its opinion the complainant/applicant was totally and permanently disabled rather than determining whether the decision of the Trustee/Insurer was fair and reasonable in the circumstances. 

The outcome of this appeal must depend on the view the Court takes as to whether the Tribunal properly understood its function.  If, as the further ground of appeal contends, the Tribunal considered the wrong question, then the defects (if any) in the Tribunal's reasons complained of in the initial ground of appeal become irrelevant.

The Background

The applicant was employed by the ADARDS Nursing Home from 1 July 1991 to 6 January 1992. Initially she worked as a receptionist and clerical assistant and later as a nursing assistant.  She was employed on a part-time casual basis working approximately 24 hours per week.  She had previously worked as a nursing assistant, office assistant, telephonist, clerk, receptionist and waitress.  She had some qualifications in word processing and other office skills.  She had experience but no qualifications as a nursing assistant. 

On 28 December 1991 she sustained an injury to her neck and right shoulder while helping to lift a patient.  She continued to attend work but by early January was in significant pain.  Her last day of work was 6 January 1992 and she resigned in December 1993. 

The applicant was a member of the Health Employees Superannuation Trust Australia.  The Trust Deed provides by r 6 of the second schedule that a total and permanent disablement benefit will be payable if the member becomes "totally and permanently disabled".  That term is defined in r 1.1 of the first schedule to have the same meaning as any expression of similar import in a policy of insurance applicable at the time.  There was a policy of insurance issued by the second respondent (the Insurer).  In that policy the definition of "totally and permanently disabled" was:

Totally and Permanently Disabled in relation to an Insured Member means having been absent from employment with his Employer through injury or illness for six consecutive months and in the opinion of the Insurer after consideration of medical evidence that is satisfactory to the Insurer having become incapacitated to such an extent as to render the Member unlikely ever to engage in or work for reward in any occupation or work for which he is reasonably qualified by education, training or experience ...

On 10 June 1994 the applicant lodged a claim for total and permanent disablement.  The insurer decided on 10 July 1995 that the applicant did not satisfy that definition.  On 17 July 1995 the Trustee decided to reject the applicant's claim.

On 29 December 1995, after consideration of further medical evidence, the Insurer reviewed and affirmed the decision.  The Trustee referred the assessment to the Disability Claims Management and Counselling Service which concluded on 9 January 1996 that it "preferred the view of the independent medical examiner".  After considering the new medical examination evidence, the Insurer's review and the DCMC review, the Trustee on 4 March 1996 affirmed its decision.

Medical Evidence

The medical evidence before the Trustee and the Insurer at the time of the decisions in July 1995 consisted of:

(a)        Reports from Dr H Francis, Rheumatologist, dated 13 July 1993 and 12 April 1995.  He was the applicant’s treating doctor.  He expressed the view that the applicant was troubled by neck, right shoulder and arm pain which was markedly exacerbated by activity and that her "high level of incapacity" precluded her from returning to the workforce and that it was "unlikely that the situation was going to significantly settle considering the progress over the previous 18 months".  In his second report he concluded that the applicant was "incapacitated from returning to the workforce" and he regarded this incapacity as "total and permanent".

(b)        A report from Dr C Lloyd, General Practitioner, dated 14 October 1994, another treating doctor.  He expressed the view that the applicant's symptoms were "likely to continue to a variable degree for the near future"; she was then capable of performing no work and that it would be some two years at least before she could perform any work, as the condition was likely to be permanent. 

(c)        A report from Mr R Turner, Orthopaedic Surgeon, dated 26 June 1995.  He expressed the view that the applicant's "clinical signs of global loss of power in the right upper limb and C8 loss of sensation are not consistent with a C5/6 disc herniation; and that she was either deliberately exaggerating the degree of her disability, or subconsciously exaggerating it".  He concluded that he did not believe that she would be able to return to work in a position where she was required to lift or to use her arms above shoulder height.  His opinion was that he found it difficult to see why she would not be able to undertake some clerical duties. 

By the time of the decisions in December 1995 and March 1996 there were further reports:

(d)        A further letter from Dr Francis dated 16 August 1995 expressing the opinion that the applicant's level of disability was sufficient to interfere even with the activities of daily living and that she was unfit for returning to work for which she was reasonably suited by education, training or experience.

(e)        A report from Mr P J Field, Orthopaedic Surgeon, dated 1 December 1995.  He expressed the view that the applicant's complaints of having continuing pain for the past four years without any pain free periods was "out of keeping with the normal natural history of cervical disc degeneration" and that her global arm weakness did not "fit in with the normal dermatomal distribution of nerve root compression and would suggest that there is a marked subratentorial element in her problem".  He concluded that because of those elements of her history and physical examination it was not possible to say whether she had any disability at the present time.  A person with cervical disc degeneration would “normally be capable of doing light labouring activities" but doing work above shoulder level or with the neck in extremes of flexion and extension would be liable to cause symptoms. 

The Legislation

The following analysis of the operation of the Act is gratefully taken from the decision of Sundberg J in National Mutual Life Association of Australia Ltd v Jevtovic (unreported, 8 May 1997).

The Tribunal was established by s 6 of the Act.  Its objectives include providing mechanisms for the review of decisions or conduct to which complaints relate that are fair, economical, informal and quick: s 11.  Section 14(2) enables a person to make a complaint to the Tribunal that a decision relating to a member of a regulated superannuation fund was or is unfair or unreasonable.  The parties to a complaint are the complainant and the trustee, and the Tribunal has power to join an insurer where the subject matter of the complaint relates to a death benefit or a disability benefit under a contract of insurance between the trustee and an insurer: s 18.

Section 32(1) provides that if the Tribunal has not been able to settle a complaint by conciliation, it must fix a date, time and place for a "review meeting".  The parties are entitled to make written submissions for the purposes of the review meeting: s 33.  Unless the Tribunal considers it necessary that there be oral submissions at the review meeting, it must conduct the meeting without them:  s 34.  Section 36 provides:

The Tribunal, in reviewing a decision or conduct;

(a)       is not bound by technicalities, legal forms or rules of evidence; and

(b)       is to act as speedily as a proper consideration of the review allows, having regard to the objectives laid down by s 11 and the interests of all the members of the fund to which the complaint relates; and

(c)        may inform itself of any matter relevant to a review of the decision in any way it thinks appropriate.

Section 37 is in part as follows:

(1)       For the purposes of reviewing a decision of the trustee of a fund that is the subject of a complaint under section 14:

            (a)        the Tribunal has all the powers, obligations and discretions that are conferred on the trustee; and

            (b)        subject to subsection (6), must make a determination in accordance with subsection (3). 

(2)       If an insurer ... has been joined as a party to a complaint under section 14:

            (a)        the Tribunal must, when reviewing the trustee's decision, also review any decision of the insurer ... that is relevant to the complaint; and

            (b)        for that purpose, has all the powers, obligations and discretions that are conferred on the insurer ...

            (c)        subject to subsection (6), must make a determination in accordance with subsection (3).

(3)       On reviewing the decision of a trustee [or] insurer ... that is the subject of, or relevant to, a complaint under section 14, the Tribunal must make a determination in writing:

                        (a)        affirming the decision; or

            (b)        remitting the matter to which the decision relates to the trustee [or] insurer ... for reconsideration in accordance with the directions of the Tribunal; or

            (c)        varying the decision; or

            (d)        setting aside the decision and substituting a decision for the decision so set aside.

(4)       The Tribunal may only exercise its determination-making power under subsection (3) for the purpose of placing the complainant as nearly as practicable in such a position that the unfairness, unreasonableness, or both, that the Tribunal has determined to exist in relation to the trustee's decision that is the subject of the complaint no longer exists.

(5)       The Tribunal must not do anything under subsection (3) that would be contrary to law, to the governing rules of the fund concerned and, if a contract of insurance between an insurer and trustee is involved, to the terms of the contract.

(6)       The Tribunal must affirm a decision referred to under subsection (3) if it is satisfied that the decision, in its operation in relation to:

            (a)        the complainant ...

                        ....

            was fair and reasonable in the circumstances.

A review is usually held in private, and the Tribunal may give directions as to the persons who may be present: s 38.  A decision of a trustee or insurer as varied by the Tribunal, or a decision made by the Tribunal in substitution for a decision of a trustee or insurer, is to be taken to be a decision of a trustee or insurer, and on the coming into operation of the Tribunal's determination has effect on and from the day on which the original decision had or has effect: s 41(3). 

The Tribunal's Decision

The Tribunal met at Melbourne on 27 November 1996 and on that day affirmed the decision under review.  Its written reasons are dated 18 December 1996.  After summarising briefly the history of the complaint the decision states under the hearing "Issues":

The issue for the Tribunal to decide is whether (the applicant) is entitled to be paid a total and permanent disablement benefit because she satisfies the definition of `total and permanent disablement' in the Trust Deed.  The Trust Deed incorporates the definition of `total and permanent disablement' in the Insurance Policy as set out in the first schedule.  Therefore the Tribunal must decide whether (the applicant) satisfies the criteria for `total and permanent disablement' as set out in the Insurance Policy.

The Tribunal then summarises the cases of the applicant, the Trustee and the Insurer.  Those summaries are in terms consistent with the Tribunal canvassing the issue as to whether or not the applicant was totally and permanently disabled within the meaning of the policy.  For example, the Tribunal refers to a submission on behalf of the applicant "in which it was stated there was ample evidence in the medical report to support (her) claim" and said that "(i)t was submitted that the reports of doctors who had treated (the applicant) on a number of occasions should  bepreferred to the report of the specialist who had seen her on one occasion only".  There is discussion of her varied work experience and how her present condition would impede various activities in occupations of those kinds.  As to the Trustee, it is said that its submission "was based on the medical evidence which recorded that (the applicant) was qualified to return to work in a light clerical position and that she was qualified for such work through her education and experience".  The Tribunal then summarises the medical reports already referred to and quotes the relevant clauses from the Trust Deed and the insurance policy.

The Tribunal then concludes:

FINDINGS

On the basis of the evidence presented to it, the Tribunal made the following findings:

(1)       (The applicant) was a member of the Fund from July 1991.  She last attended work on 6 January 1992, and she resigned from her employment in December 1993.  She lodged a claim for a total and permanent disablement benefit on 10 June 1994.

(2)       (The applicant) suffers from disc herniation at C5-6 which causes symptoms of pain and restriction of movement.  She also suffers from right shoulder and right arm pain.

(3)       As a result of (the applicant's) injury she is restricted in her lifting, using her arms above shoulder height, extremes of flexion and extension of the neck, performing activities which require rapid movement of the arms or turning her neck rapidly, performing static loading activities.

(4)       (The applicant) has experience and training in clerical work, secretarial work, receptionist work and nursing aid activities.

CONCLUSION

The powers given to the Tribunal under the Superannuation (Resolution of Complaints) Act 1993 to decide complaints, are set out in section 37 and include that the Tribunal may exercise all the powers, obligations and discretions of the Trustee.  It must, however, affirm the Trustee's decision if in its operation to the complainant it was fair and reasonable in the circumstances (see section 37 (6)).

To qualify for the total and permanent disablement benefit (the applicant) must show that she is totally and permanently disabled according to the definition set out in the insurance policy.  The Trust Deed incorporates that definition to assess a member's qualification for the total and permanent disablement benefit.  The definition requires (the applicant) to have  been absent from her employment because of her injury for six consecutive months, and to have become incapacitated to such an extent that she is unlikely every [sic] to engage in work for reward in any occupation or work for which she is reasonable qualified by education, training or experience.  (The applicant) has been absent from her employment for more than six consecutive months as a result of the injury to her neck, right shoulder and right arm.  As a result of that injury (the applicant) is unable to undertake activities which require her to be able to lift, use her arm above shoulder height, extend her neck, use her arm rapidly or undertake static loading activities.  (The applicant's) previous employment required her to life heavy objects and undertake static loading activities.  Therefore, the Tribunal is satisfied that (the applicant) would be unable to return to her former position.

The issue the Tribunal must address is whether (the applicant) is unable to return to any occupation for which she is reasonably qualified by education, training or experience.  (The applicant) has a number of qualifications especially in the receptionist, clerical or secretarial field.  She also has experience in those areas.  In the Tribunal's opinion (the applicant) would be able to return to work as a receptionist undertaking limited typing/wordprocessing duties.  The amount of lifting involved in such a job would be light.  There would be very little static loading.  (The applicant) would be able to move around as required to ease any pain which developed.  There are also a number of clerical jobs which (the applicant) could undertake which would not exacerbate her symptoms.  The Tribunal is satisfied that (the applicant) would be able to return to work for which she is reasonably qualified by education, training and experience.

For the above reasons the Tribunal finds that the decision of the Trustee is both fair and reasonable in its operation to (the applicant).  The Trustee has correctly considered the medical evidence and (the applicant's) work history and decided that there are occupations (the applicant) could return to.

InJevtovicSundberg J said (at 10):

The matter to which the Tribunal must first direct its attention under s37, in a case such as the present, is whether it is satisfied that the decision, in its operation in relation to the complainant, was fair and reasonable in the circumstances.  That is made clear by s37(1)(b) - the obligation to make a determination under sub-s(3) is "subject to subsection (6)" - and by sub-s(4) - the Tribunal's power to make a determination under sub-s(3) is conditional upon it having found that the decision was unfair or unreasonable or both.

Shortly after that passage his Honour said:

The subs 6 inquiry is not whether the Tribunal is of the opinion that the respondent is totally and permanently disabled, but whether it is satisfied that the trustee's and the insurer's decision that he was not so disabled were fair and reasonable in the circumstances. 

I respectfully agree with that view of the legislation; see also Briffa v Hay (unreported, 20 June 1997) at 13 per Merkel J.

While conscious of course of the warning in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 against over-zealous or pedantic scrutiny of the reasons of administrative tribunals, I am satisfied that a fair reading of the Tribunal's reasons shows that it misunderstood its task.  This is made particularly clear by the passages at the outset and in the second last paragraph where it defines the issue which it saw as being before it.  But the issue in truth was not whether the applicant was entitled to be paid a total and permanent disablement benefit, or whether she was unable to return to any occupation for which she was reasonably qualified by education, training or experience.  The issue was, in terms of s 37(6), whether the decision appealed against was "fair and reasonable in the circumstances". 

Accordingly the appeal must be allowed.  Although both counsel presented careful arguments on the points raised by the initial ground of appeal, I do not think it appropriate to express any view since there would be no point in adjudicating on whether the Tribunal dealt correctly or incorrectly with a matter which was not for it to decide. 

There will be order that the appeal be allowed, and that the matter be remitted for rehearing before the Tribunal differently constituted.  The respondents are to pay the applicant's costs, including reserved costs. 

Associate:

Dated:              15 August 1997