FEDERAL COURT OF AUSTRALIA

Administrative Law - appeal on question of law from Administrative Appeals Tribunal - whether applicant suffered a “permanent impairment” as the result of an injury at the date of commencement of the Safety, Rehabilitation and Compensation Act 1988 - whether reasons given by the Tribunal fell short of the standard required - whether there was material before the Tribunal to support the finding that “permanent impairment” occurred prior to the commencement date - appeal dismissed.

Administrative Appeals Tribunal Act 1975 (Cth)

Safety Rehabilitation and Compensation Act 1988 (Cth), ss 4, 24, 124

Comcare v Levett (1995) 131 ALR 645

Brennan v Comcare (1994) 50 FCR 555

Matter No. SG 90 of 1997

DAVID JOHN O’KEEFE v COMCARE AUSTRALIA

VON DOUSSA J

ADELAIDE

3 JUNE 1998

THE COURT ORDERS THAT:

The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

This is an appeal, within the original jurisdiction of the Court, pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) from a decision made on 16 October 1997 of the Administrative Appeals Tribunal, General Administrative Division, (“the Tribunal”) constituted by a Senior Member.  Pursuant to s 43 of the AAT Act, the Tribunal affirmed the decision under review.  That was a decision of the respondent Comcare Australia (“Comcare”) dated 28 August 1996 which had in turn affirmed a determination dated 12 April 1996 that liability did not exist under ss 24 or 124 of the Safety, Rehabilitation and Compensation Act 1988 (“the 1988 Act”) in respect of permanent impairment for which the applicant, Mr O’Keefe, had claimed.

Mr O’Keefe was born on 16 October 1954.  It was agreed between the parties that he commenced employment with the Department of Employment and Industrial Relations on 22 February 1977.  He remained in employment with the Commonwealth until 22 June 1988 when he was retired by consent pursuant to subs 76W(1) of the Public Service Act 1922 (Cth) on the grounds of inefficiency.  On various occasions in the years from 1979 to 1988 the respondent accepted liability to pay worker’s compensation to Mr O’Keefe in respect of an anxiety or depressive illness arising in the course of or out of his employment with the Commonwealth.  After his retirement, a dispute arose between Mr O’Keefe and the respondent as to his continuing entitlement to compensation.  That dispute was resolved by a consent order recorded in the Administrative Appeals Tribunal on 22 February 1991.  By that consent order it was determined:

“(i)      That since the 22nd day of June 1988 the applicant has suffered from an injury namely an anxiety state which has arisen out of or in the course of or that has been caused, contributed to or exacerbated in a material way by the applicant’s former employment with the Commonwealth;

(ii)       That the said injury has since the 22nd June 1988 caused the applicant to suffer an impairment or incapacity for work.

(iii)      That the respondent is liable for the payment of compensation to the applicant in respect of the said anxiety state pursuant to the Commonwealth Employees Rehabilitation and Compensation Act 1988 (as amended) from the 23rd day of June 1988.”

The applicant subsequently made a claim for a lump sum payment for a permanent impairment pursuant to ss 24 and 27 of the 1988 Act.  An entitlement to compensation under s 27 is dependent upon compensation being payable under s 24.

Section 24 of the 1988 Act relevantly provides:

(1)       Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.

(2)       For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:

            (a)        the duration of the impairment;

            (b)        the likelihood of improvement in the employee’s condition;

            (c)        whether the employee has undertaken all reasonable                                    rehabilitative treatment for the impairment; and

            (d)        any other relevant matters.

(3)       Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under sub-section (4), being an amount not exceeding the maximum amount at the date of the assessment.

(4)       The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).

(5)       Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.

(6)       The degree of permanent impairment shall be expressed as a percentage.

(7)       Subject to section 25, where Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section.

(8)       ...

(9)       For the purposes of this section, the maximum amount is $80,000.”

Expressions used in s 24 are defined in s 4.  It is not necessary for present purposes to discuss the definition of “employee”.  There is no dispute that Mr O’Keefe was an employee, and the occurrence of an injury is determined by the order of the Tribunal made on 22 February 1991.  However, the following definitions are important:

“‘injury’ means:

(a)       a disease suffered by an employee; or

(b)       an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or

(c)        an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.

‘disease’ means:

(a)       any ailment suffered by an employee; or

(b)       the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.

‘impairment’ means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.

‘permanent’ means likely to continue indefinitely”.

The day of commencement of the 1988 Act was 1 December 1988, that is, after the date of the injury suffered by Mr O’Keefe, and after his retirement.  Part X of the 1988 Act contains transitional provisions.  Section 124 relevantly provides:

(1)       Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.

(1A)     Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.

(2)       ...

(3)       A person is not entitled to compensation under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing date, if:

            (a)        ...

            (b)        the person was not entitled to receive compensation of a lump                     sum in respect of that impairment or death:

                        (i)         ...

                        (ii)        ...

                        (iii)       in any other case - under the 1971 Act as in force when                                the impairment or death occurred.”

It is clear from the language of s 124(1) that compensation may be payable under the 1988 Act in respect of an injury which an employee suffered prior to the commencing day, viz 1 December 1988: see Comcare v Levett (1995) 131 ALR 645.  The liability to pay compensation in such a case arises by virtue of s 124: Brennan v Comcare (1994) 50 FCR 555 at 566.  The apparently wide conferral of an entitlement to compensation under s 124(1) in respect of injuries occurring before the commencing day is qualified by following provisions in s 124.  Plainly Mr O’Keefe fulfils the qualification in subs 124(1A).  However, subs 124(3) has been the basis for the adverse decisions which have so far been made in respect of Mr O’Keefe’s claim under s 24 by the primary decision-maker, on internal review, and then by the Tribunal. 

The claim by Mr O’Keefe is for compensation under s 24 for permanent impairment alleged to result from the injury described in the consent order entered on 22 February 1991 as “anxiety state”.  The decision-makers at each level proceeded on the footing that Mr O’Keefe now suffers a “permanent impairment” as a result of the injury, and that the “permanent impairment” is of a kind that would not have entitled Mr O’Keefe to compensation of a lump sum under the 1971 Act which was in force at the time when the injury occurred.  Thus the question to be resolved by each of the decision-makers became whether, within the meaning of s 124(3), Mr O’Keefe was seeking compensation under s 24 in respect of a permanent impairment that occurred before 1 December 1988.

The Tribunal had before it the information contained in the documents lodged by Comcare pursuant to s 37 of the AAT Act (the T documents) together with a number of exhibits which included medical reports from several medical practitioners.  The Tribunal heard oral evidence from Dr J E Burvill (Mr O’Keefe’s treating psychiatrist), and from Mr O’Keefe.  The Tribunal concluded that Mr O’Keefe suffered a permanent impairment prior to 1 December 1988, and that he was therefore not entitled to compensation.

The notice of appeal alleges that the Tribunal erred in its construction of ss 24(2) and 124(3) of the 1988 Act; that the reasons for decision given by the Tribunal fell short of the standard required by s 43(2) and 2(B) of the AAT Act; that there was no evidence before the Tribunal to support the finding that Mr O’Keefe had suffered a permanent impairment prior to 1 December 1988; and that the Tribunal erred in drawing an inference from the evidence that he had suffered a permanent impairment before that date. 

The grounds of appeal, and the submissions made in support of them, make it necessary to discuss the factual information before the Tribunal in some detail.  This is also necessary as I consider there has been considerable confusion and imprecision in the use of several terms that appear frequently in medical reports and in the oral evidence.  For example, there is frequent reference in medical opinions to the “condition” suffered by Mr O’Keefe, and to his “impairment” where the context indicates that the expressions are not being used with a consistent meaning.  Sometimes these expressions are being used to refer to the injury described in the consent order, sometimes Mr O’Keefe’s vulnerability to a raft of anxiety related symptoms, and sometimes to the actual suffering by Mr O’Keefe of one or more of those symptoms.  For this reason the interpretation of some passages of medical evidence is difficult, and it is necessary to construe the medical evidence against the known factual background.

Although the injury for which compensation became payable under the consent order is described as “an anxiety state” Dr Burvill in evidence explained that a better description would be “anxiety disorder”.  He said that an anxiety state describes a set of circumstances at a point in time whereas “anxiety disorder has the characteristic that it can be prolonged and have exacerbations”.  The expression “anxiety state” is used frequently in the material that was before the Tribunal, sometimes as describing a state of anxiety suffered at a particular point in time, and sometimes as a description of the underlying disorder, ailment or “injury” suffered by Mr O’Keefe.

In the course of his work from 1977 Mr O’Keefe was frequently required to interview people seeking social security benefits.  Often these people had emotional problems, and at times they were aggressive.  Mr O’Keefe reported to doctors that he found the tasks demanding and he felt a lack of energy and a desire to withdraw.  In 1979 he developed a panic-anxiety attack at work and it was necessary for him to seek medical assistance from his general practitioner.  In 1980 he was referred to a psychiatrist who arranged for him to undergo some relaxation therapy as well as prescribing valium.  He continued to seek assistance from his medical practitioner from time to time during 1982 and in the early part of 1983 for what he then described as a “chronic anxiety state”. In a medical report dated 10 April 1984 a psychiatrist then treating Mr O’Keefe reported that with this treatment “his condition stabilised but it did not resolve”.  He continued to suffer from anxiety attacks, hyperventilation, headaches, palpitations and a pulse sensation in various parts of his body.  He also had a fear of having a heart attack.

On 26 January 1983 he was examined by a Commonwealth Medical Officer who thought he was unfit for continued employment in his duties as he was suffering numerous anxiety and stress related symptoms.  Transfer to a job which did not involve direct contact with the public was recommended.

On 4 March 1983 Mr O’Keefe ceased work.  He was on sick leave for some time, and then on sickness benefits.  He did not return to work until 2 April 1984.  In respect of a claim for compensation payments made on 23 August 1983 Mr O’Keefe described nine symptoms from which he was suffering, namely:

1.         Constant headaches

2.         Interrupted sleep

3.         Hyperventilation

4.         Difficulty concentrating

5.         Difficulty in talking with people either in person or on the phone

6.         Physical agitation including blinking and scraping of fingers together

7.         Diarrhoea when stress attacks are bad

8.         Heart palpitations from time to time

9.         Stalling of breathing

He said “I find that my condition is generalised and my threshold at which stress has a debilitating effect on me is, now much ‘closer to the surface’ than it once was...The condition is insidious in that it is cumulative and incremental in its development”.

Mr O’Keefe was examined by Dr J A Gatenby, a psychiatrist in Sydney in September 1983.  At that time Dr Gatenby thought that Mr O’Keefe had suffered from an anxiety reaction associated with his situational problems at work.  Except for some tension headaches he had at that time virtually recovered from his anxiety symptoms and Dr Gatenby thought that he was fit to return to duties as a clerk, but not as an employment officer involving client interview.  He thought he would be fit for project or research work.  Dr Gatenby remained of this opinion following a further examination of Mr O’Keefe on 3 February 1984.  On 21 February 1984 a Commonwealth Medical Officer concurred with that opinion.  A similar view was expressed in a report dated 10 April 1984 by Dr Davies, a psychiatrist at Wollongong who had been treating Mr O’Keefe during 1983 and the early part of 1984.

Mr O’Keefe returned to work in his former classification as a clerk class 4 with the Department of Employment and Industrial Relations on 2 April 1984 but stress related symptoms returned, and he left work on sick leave on 14 February 1985.  He then made a claim for compensation in which he said that his “condition redeveloped from 2/4/84 to 14/2/85 when sick leave commenced” and that it was “induced by stressful work environment and recurred when I returned to the Department to work”.  He said that “the headaches continued from the time I returned to work on 2/4/84”.  In answer to the question “have you previously made a claim under the Act in respect of the condition for which this claim is made” he answered “yes...liability was accepted for a period from 23/5/79 to 1/4/84.  This is a continuation of that claim.”

When Mr O’Keefe left work in February 1985 he returned to New South Wales and again consulted Dr Davies.  In a report dated 27 August 1985 Dr Davies records that after Mr O’Keefe returned to work in March 1984 “he had then progressively developed headaches and by November these had become sufficiently severe to force him to take time off work.  He saw Dr Downing, his general practitioner at this time and in December he came home to Wollongong for a holiday.  After he returned to work his headaches had again increased and on 14 February he went off work and his doctor gave him a certificate for three months sick leave...”.  Dr Davies gave his opinion at that time that Mr O’Keefe had suffered “from an exacerbation of his anxiety state which seems to particularly have become disabling with a change in supervisor in November although underlaying [sic] factors from his previous illness remain.  I remain hopeful that he will again improve in the medium to long term and be fit for employment but it would be necessary for this to be of a low stress nature and in an area where advantage could be taken of his home support”.

Mr O’Keefe was examined by a Commonwealth Medical Officer in Wollongong on 14 October 1985.  Mr O’Keefe reported that he had not improved at all despite the prolonged rest since leaving work.  Mr O’Keefe was referred to a psychiatrist Dr Frame who saw him on 1 November 1985.  Dr Frame reports that Mr O’Keefe reported that he experienced symptoms consisting of severe headache bitemporally, associated with nausea.  The headache is constantly present and is exacerbated by tension.  He complained of attacks of breathlessness, palpitation and “a knotted feeling in the stomach”.  He occasionally had a tic involving his facial muscles.  He was conscious of pulsations in the posterior fossa.  He complained of being generally despondent and that he had a sleep problem.  After considering Dr Frame’s opinion the Commonwealth Medical Officer in Wollongong recommended that Mr O’Keefe again be given work in which he would not be in direct contact with the public.

Mr O’Keefe returned to alternative duties found for him in New South Wales.  He later reported to another psychiatrist, Dr Schembri that this occurred in mid-1986, “but did not work out”.  Mr O’Keefe described the attempt to return to work as a fiasco and he said his complaints of headaches, palpitations and insomnia persisted.  He therefore decided to take accumulated leave towards the end of 1986 and this break away from his employment continued until the middle of 1987.

When Mr O’Keefe resumed employment again in July 1987, he did so in Adelaide.  The Department sought an opinion from Dr Burvill who had commenced treating Mr O’Keefe on 3 August 1987.  In a report dated 31 August 1987 Dr Burvill said that Mr O’Keefe recognised that the position that had been found for him in Adelaide was temporary and that the problem of his redeployment was unresolved.  Dr Burvill reported that Mr O’Keefe viewed with considerable alarm an attempt to return him to his former position because of the severe symptoms of headache and an inability to cope that he had experienced when he previously held the position.  He expressed fears that his present gains in terms of improvement in his coping ability would be lost if he returned to that position.  Mr O’Keefe viewed any redeployment within the Department as detrimental to his health.  Dr Burvill said he was unable to state what sort of position Mr O’Keefe could cope with in the Department “as the problem has now reached a point where it is not just any specific position that would be a problem, but any position, due to his powerful negative associations”.

On 22 September 1987 a Commonwealth Medical Officer in Adelaide reported that Mr O’Keefe experienced headaches daily and appeared to fear a return of his previous symptoms.  Mr O’Keefe said that he was unable to accept any position with the Department because of his strong negative feelings.  Redeployment in another Department was recommended.  However, Mr O’Keefe continued to be employed with the same Department as a supernumerary until he was retired in June 1988.

In a report dated 14 December 1988 Dr Burvill reported that Mr O’Keefe had occupied the major part of his time since his retirement to planning for his future.  To that end he had made applications to various tertiary bodies.  However, he had not been symptom free.  He had suffered a significant attack of anxiety in the form of a panic attack occurring at night, on the evening before he was to go to the Social Security Department to register as unemployed.  At other times he felt tense and experienced headaches.  Dr Burvill summed up the position thus:

“Therefore Mr O’Keefe presents with ongoing problems with headaches, best described as tension headaches, occurring when he is tired, when in noisy places or when anxious about any other situation...

Thus, it could be concluded that Mr O’Keefe had the underlying capacity for anxiety state and tension headaches, this was markedly exacerbated during his employment with the Commonwealth, and the condition continues to some extent now.  I feel that the manner in which the problem is continuing could not be classed as temporary, but I would hesitate to say that it was permanent.  It is likely to recur in such circumstances as outlined.  To that extent, it would cause restrictions in his working capacity in that he would find it difficult to work in large offices, crowded places, noisy situations, under pressure, and would perform best in quieter circumstances, ideally where he worked virtually alone.”

It will be observed that headaches were the “problem” which Dr Burvill hesitated to say was permanent.  In March 1989 Mr O’Keefe commenced studying for a Diploma in Humanities at Flinders University.  He considered this to be part of a rehabilitation program. At that time Dr Burvill described his enrolment at the University as “one of the avenues in which he thought he could develop his personal abilities and function away from the situations in which he previously experienced symptoms”.

In June 1989 Mr O’Keefe commenced working part time, four days a week, three hours per day, telemarketing, and this continued for some twelve months.  He chose this type of employment as he did not consider finding another office job would be appropriate as he considered he would not be able to cope with the office environment.  The telemarketing work produced an onset of headaches and tachycardia as well as sleep disturbances on some nights.  In a report dated 22 November 1989 Dr Burvill expressed the view that the telemarketing work had stretched his ability to the limit for that type of work, and he felt that there was little doubt that Mr O’Keefe would not be able to tolerate longer hours in that type of employment.  Dr Burvill went on to say:

“His engagement in that type of employment was, as it were, a trial of his capacity to work in that his previous efforts had not be successful due to his inability to work in crowded office spaces surrounded by noise.  The telemarketing position suggested itself to Mr O’Keefe as a possibility in that he worked alone and was therefore subjected to less of the previous stresses.  Therefore up to the time where he started with the telemarketing, his condition had effectively prevented him from finding any suitable employment.”

Mr O’Keefe has not undertaken other work since then.  In the period from 1991 to 1993 he lived in New South Wales.  In 1994 he returned to Adelaide and undertook study for a Graduate Diploma in Legal Studies.  In 1995 he neither worked nor studied, and at this time he concluded that his impairment had become permanent.

In 1996 Dr Burvill was asked to consider the question of when Mr O’Keefe suffered a permanent impairment.  On 18 March 1996 he wrote to Mr O’Keefe’s solicitor on that topic, and the report formed part of submissions made to Comcare on Mr O’Keefe’s behalf in support of his claim.  Following the decision to reject the claim made by the primary decision-maker on 12 April 1996 a review officer corresponded with Dr Burvill, who supplied a further report dated 22 July 1996.

In his report of 18 March 1996 Dr Burvill said:

“As to the concept of permanency in a medical sense, at the time when I reported in December 1988, Mr. O’Keefe had recently, i.e. in June of that year, separated from DEET and as my report indicates, I was hesitant to state with any degree of certainty what the future course for his headaches would be, and hesitated to use the word permanent.  The reason for that was that he had, in recent time, separated from DEET, and sufficient time needed to pass, in my opinion, for his condition to stabilise as during his DEET experiences he had been under considerable stress prior to his separation from the Department, and sufficient time had not elapsed to ascertain the future pattern of his headache problem.

At this stage, well down the track from the time that he has left DEET, he has lost some of the symptoms which he experienced while at DEET, but has persisting headache of severe nature, and occurring almost every day.  This is despite prophylactic and other treatment for the condition.

Therefore his condition of headache is enduring.  I use the term enduring as a medical application of the concept of permanency insofar as some conditions, by their enduring nature, come to be effectively permanent.  This is the case in Mr. O’Keefe’s condition and I consider that his headaches certainly are enduring in a permanent way.”

In his report of 22 July 1996 to the review officer he said:

“As known to you, in Mr O’Keefe’s history, he had suffered headaches severely during the time he was employed in a Commonwealth Department, but these had reduced in frequency and severity as a result of both ceasing work and the therapy given by myself in the form of relaxation tapes and the use of a beta blocker.  He nevertheless had been able to continue working until June 1988, and although he had the condition of the headaches, it did not incapacitate him from holding his position until that time.

At the time my report was prepared in December 1988, he was still demonstrating the capacity to suffer from the same form of headache on an intermittent basis in certain circumstances, and my report then quotes some examples.

What was not clear to myself then was the future pattern of his headaches, i.e. would they continue to be experienced in life circumstances where he felt he had good opportunities for future career path, [sic] i.e. at the university, or equable circumstances in his personal life, nor his future response to medication and any other form of medication which might subsequently evolve.

I felt quite justified under the circumstances that his headaches had improved considerably, albeit they had recurred on some occasions, in the six months prior to writing the report, in giving the opinion on the 14th December 1988 that I was not prepared to say that his condition of headache could at that time be classified as permanent.  You will note from the report that I considered that he would have difficulty in certain circumstances and would perform best in quieter circumstances i.e. working vertually [sic] alone, and wanted to further his educational career placing emphasis on achieving just that situation in the future.

Therefore I stand by my original opinion that I do not consider it more likely than not that prior to the 1st December 1988 the impairment could be said (i.e. that an opinion could have been given) to be likely to continue to some degree indefinitely.”

Again, it will be observed that the opinions given by Dr Burvill in the last two mentioned reports concentrate on Mr O’Keefe’s complaints of headaches which Dr Burvill refers to as “the condition” and observes that it was “his condition of headache” that could not at 14 December 1988 be classified as permanent.  In the opinion contained in the final paragraph of the report of 22 July 1996 just quoted, the reference to “impairment” is, in that context, a reference to the condition of headache described in the preceding paragraphs of his report.

Dr Burvill goes on in his report of 22 July 1996:

“You go on to ask at what date I consider that it could be reasonably said that Mr O’Keefe’s impairment had stabilized for the purpose of assessment.

This question is of course difficult to answer and on review of my involvement with Mr O’Keefe in the intervening years, his degree of impairment from headache has fluctuated considerably and fluctuated in response to a number of treatment methods used...

Nevertheless on December 14th 1988 I was aware that Mr O’Keefe’s headaches were continuing on an intermittent basis, and although hopeful that they could still be controlled effectively, I became aware by the 31st July 1990 that Mr O’Keefe was still having frequent episodes of headache, which in my notes of that date is classified as ‘still as frequent’.  Therefore since you ask for a definite date at which stability could be classed as having been reached for the purpose of impairment, I will nominate the date of 31st July 1990.”

In his oral evidence, in chief, Dr Burvill expressed the view that in December 1988 he was hopeful that Mr O’Keefe would find a lifestyle that avoided situations of tiredness, tension and confrontation so that symptoms of the kind which he had experienced in the past when exposed to stressful situations would not recur.  There had by that time been an improvement in his symptoms both with treatment, and in consequence of leaving work.  There remained “the possibility that he could find a way in life or an occupation in life which would be more suitable in terms of not causing exacerbation and aggravation of the condition that he had”. However, things had not turned out as Dr Burvill hoped because, with the benefit of time, Dr Burvill had come to the view that  Mr O’Keefe suffered a rare form of headache which involved three different characteristics at once.  Dr Burvill considered that the headaches would be likely to persist regardless of lifestyle and the removal of stressful situations of the kind that could arise in a work environment. 

In cross-examination Dr Burvill again said that in early December 1988 “we were recommending that he seek a lifestyle and a situation where the setting was one which would not exacerbate his condition and which would lead to his condition ameliorating, improving.  Dr Burvill was asked:

“Would it be fair to say that realistically you were hopeful of a significant improvement, but you thought nonetheless there would be some residual symptoms after December 88?---I agree with everything you said until you get to the word symptoms, let us put residual vulnerability, I think that would encompass it.”

Dr Burvill went on to say that of people who suffer vulnerability to tension and anxiety, some 18 per cent have a clear family history of such a disorder.  In the other 82 per cent the occurrence of the first onset of tension and anxiety is related to an episode in which they react to whatever is happening at the time of the first anxiety attack.  From that point a vulnerability arises which may lead to further symptoms of anxiety and stress.  Dr Burvill said:

“Mr O’Keefe had the one occasion, better, bad on other occasions, so the condition isn’t permanent, the vulnerability is present.”

and:

“A person with a vulnerability to an anxiety state may well have some further exacerbations down the track?---Yes.”

Dr Burvill was asked questions about Mr O’Keefe’s underlying vulnerability to suffer anxiety related symptoms.  A number of questions were put to him suggesting that the underlying vulnerability had been much the same since at least 1983, although the range of symptoms had varied over the years.  Then the following question and answer occurred which give some insight to the meaning of Dr Burvill’s evidence:

“That underlying vulnerability to anxiety and tension and their related symptoms on the history has been present since 1983 but the symptoms from that have fluctuated?---The symptoms constitute the illness.  The vulnerability constitutes nothing.  It’s just a vulnerability.

I thought you told the Tribunal earlier, Doctor, that there had been and remains an increased vulnerability because of his work circumstances?---Yes.

Right, and that has remained, has it not?---Yes.

Then the symptoms have fluctuated, depending upon the particular circumstances that Mr O’Keefe finds himself in?---That’s correct, and medication response - - -

Medication and your treatment and things of that nature?---Yes.

So if we look to that whole period between 1983 and even now, the vulnerability to anxiety and tension has not changed but there has been some change from time to time in the circumstances that give rise to symptoms?---That’s correct.”

Before turning to the reasons of the Tribunal which are subject to attack on this appeal, it is helpful to return to the terms of the 1988 Act.  It should be noted that s 24 distinguishes between the “injury” on the one hand and “a permanent impairment” which results from the injury on the other hand.  In the subsections that relate to the assessment of compensation for permanent disability, s 24 also draws a distinction between the fact of permanent impairment on the one hand and the ascertainment of the degree of permanent impairment on the other hand: Brennan v Comcare (1994) 50 FCR 555.  In the present case the relevant injury is described in the consent order as an anxiety state, but for the reasons given by Dr Burvill in his evidence it is perhaps to be more accurately described as an anxiety disorder.  As such it is in the nature of a disease, notwithstanding the description as to causation contained in paragraph (i) of the consent order.  What resulted from the “injury” (that is from the anxiety disorder) in the present case was the predisposition or vulnerability to suffer anxiety symptoms in circumstances where Mr O’Keefe felt under stress.  Those symptoms included but were not limited to headaches.  At times they included most or all of the nine symptoms described by Mr O’Keefe on 23 August 1983.  It was that vulnerability that incapacitated Mr O’Keefe from work.  A person in Mr O’Keefe’s situation might on a particular day be symptom free, but nevertheless be unable to pursue employment because, if he did so, the stresses associated with the employment situation would precipitate anxiety symptoms of the kind described.  That predisposition or vulnerability in this case was caused or materially contributed to by a stressful work situation in the period around 1979, and over the ensuing years liability to pay compensation for resulting periods of incapacity for work was accepted.

For the purposes of the 1988 Act, it is not correct to say that the vulnerability “constitutes nothing.  It’s just a vulnerability”.  Under the 1988 Act “impairment” is defined as including damage or malfunction of part of the bodily system or function.  Mr O’Keefe’s vulnerability is the “impairment” which results from his anxiety disorder.  The question to be decided by the Tribunal was whether that vulnerability had become “permanent” before 1 December 1988.

In its reasons for decision the Tribunal referred in detail to the reports and oral evidence of Dr Burvill.  The Tribunal referred to relevant provisions of the 1988 Act and to the definition of “permanent”, observing that it was necessary in determining whether an impairment was “likely to continue indefinitely” to consider relevant facts both before and after 1 December 1988.  The Tribunal then said:

“23.     The Tribunal, having determined all of the facts both before and subsequent to 1 December 1988, is satisfied that the applicant suffered a permanent impairment prior to this date.  This finding is supported by the applicant’s evidence.  The Tribunal accepts that the applicant was a witness of truth, but aspects of his evidence point to his having a permanent impairment prior to 1 December 1988.  In particular, the applicant gave evidence of anxiety symptoms which have continued since 1983 with varying degrees of severity.  He stated that his headaches have been present since 1983, although again with varying degrees of severity.  The applicant gave evidence that by June 1988 he thought it was likely that he would continue to have some level of anxiety, and he gave evidence of having difficulty in his work environment prior to 1 December 1988, which he believed would remain for the foreseeable future.  In summary he gave evidence of experiencing symptoms from 1983 to the present, although with some diminution in the number of symptoms, as well as some variation in severity.  The Tribunal is satisfied from the applicant’s evidence that prior to 1 December 1988 he had experienced symptoms from his condition for approximately five years with little overall improvement.  The Tribunal believes that the date November 1995 is not significant other than being the date at which the applicant himself was prepared to accept that his condition was permanent.

24.       The Tribunal accepts Dr Burvill’s evidence that the applicant had a vulnerability to anxiety and related symptoms in 1983, which was aggravated by his employment with the Commonwealth.  Dr Burvill was reluctant to say that the applicant had a permanent impairment prior to 1 December 1988.  The Tribunal cannot however place sole weight in deciding the issue upon the opinion provided by Dr Burvill.  The final determination of the issue is a question for the Tribunal and, although the Tribunal can be assisted in determining this issue by reference to medical opinions, the issue must be determined by reference to the entirety of evidence before the Tribunal and not upon the willingness or otherwise of a medical practitioner to state that an applicant had a permanent impairment as at a particular date.  The Tribunal finds that there is adequate evidence from the reports and oral evidence of Dr Burvill to support the finding that the applicant had a permanent impairment prior to 1 December 1988.

25.       The Tribunal heard evidence from Dr Burvill that the applicant’s symptoms persisted over the period 1983 to 1988 with varying degrees of severity and even at December 1988 he considered that the applicant’s condition was likely to recur.  In his report of 22 July 1996 (T48) Dr Burvill concluded that stability was reached in the applicant’s condition on 31 July 1990.  Stability is not the issue before the Tribunal, but rather that of the permanency of the applicant’s impairment.  The Tribunal agrees with the respondent’s contention that there was no medical significance in Dr Burvill choosing to say that the applicant had a permanent impairment at July 1990.  The Tribunal believes that it was open to Dr Burvill to conclude on the information before him that the applicant had a permanent impairment as at 1 December 1988, but due to Dr Burvill’s optimism and his desire to see the applicant’s condition improve, he refrained from making such a finding.

26.       The Tribunal further agrees with the respondent’s submission that Dr Burvill’s evidence proceeded on the erroneous premise that if the symptoms of the applicant’s condition could be controlled to a manageable level, then the applicant does not have an impairment.  The fact that the applicant did have an impairment is evidenced by the need for Dr Burvill to assist the applicant in altering his lifestyle so as to reduce aggravations to his condition.”

In paragraphs 24 and 26 of its reasons the Tribunal has used the word “condition” to refer to the “condition” earlier described in paragraph 7 of the reasons as the “anxiety state and aggravation of anxiety/depression illness”.  In other words, the word is used to refer to the “injury” which attracts the liability to pay compensation.  In paragraph 25 the Tribunal says “Dr Burvill concluded that stability was reached in the applicant’s condition on 31 July 1990”.  Dr Burvill was however, using “condition” in a different sense.  Dr Burvill was referring to the continuation of headaches, and not to either the injury itself or the vulnerability to suffer headaches in stressful situations.  Notwithstanding this difference in the meaning of the word “condition” in the reasons for decision, the basic reasoning of the Tribunal is, in my opinion, clear enough.  The Tribunal found that Mr O’Keefe had since 1983 suffered a vulnerability to anxiety and related symptoms.  The symptoms had fluctuated in the meantime, but the vulnerability had continued for some five years leading up to 1 December 1988, and had continued thereafter.  The Tribunal held, in substance, that the vulnerability constituted the impairment, and that it was by 1 December 1988 a permanent impairment.  In my opinion that finding was open on the evidence, and does not involve any error of law.  In my opinion it correctly applies the notions of “injury”, and “permanent impairment” employed in s 24 and 124(3) of the 1988 Act.

Counsel for Mr O’Keefe contended that the Tribunal erred in paragraph 24 of its reasons in not accepting Dr Burvill’s opinion that Mr O’Keefe’s impairment could not as at 1 December 1988 be described as permanent.  It was argued that Dr Burvill, an expert witness whose qualifications were not in question, had expressed the opinion that there was no expert medical opinion to the contrary, and that the Tribunal had not advanced reasons for rejecting Dr Burvill’s opinion.  This argument led to the contention that the Tribunal had not given reasons for its decision as required by s 43(2) and (2B) of the AAT Act.  The argument also led to the further contention that as there was no expert medical opinion which disagreed with Dr Burvill’s opinion that Mr O’Keefe’s impairment could not be described as permanent at 1 December 1988, there was no evidence which could support the Tribunal’s conclusion.  In my opinion these contentions fail for the reason that Dr Burvill in his report of 14 December 1988 expressed the opinion that it could not be said that Mr O’Keefe’s headaches were permanent.  Dr Burvill said in that report that the headaches (that is, his “problem”) were likely to recur if Mr O’Keefe became tired, or was in noisy places or situations which made him anxious.  Dr Burvill was hopeful that Mr O’Keefe could adjust his life situation so that situations of these kinds were avoided.  In his report of 22 July 1996 Dr Burvill is again expressing an opinion about Mr O’Keefe’s headaches.  He considered that the headaches had become a permanent feature by 31 July 1990.  However, the headaches were only part of the group of symptoms that Mr O’Keefe from time to time suffered. 

In my opinion Dr Burvill’s opinion addresses the wrong topic.  To concentrate attention merely on the headaches overlooks that what really incapacitated Mr O’Keefe for work was his underlying vulnerability to suffer not only headaches but also many other symptoms in situations where Mr O’Keefe felt under stress.  The history shows that Mr O’Keefe had suffered that vulnerability in an unremitting way since about 1979.  I consider the Tribunal was correct to give weight to that history and to act on it.  The Tribunal has identified that history in its reasons for decision, and the reasons make it clear that the Tribunal has reached its conclusion because of that history.  I do not consider the Tribunal has fallen into any of the errors alleged in the grounds of appeal.

In my opinion the appeal should be dismissed.

Associate:

Dated:              3 June 1998