FEDERAL COURT OF AUSTRALIA

Australian Postal Corporation v Kember [2003] FCA 800

WORKER’S COMPENSATION – Commonwealth employees – claim under Safety Rehabilitation and Compensation Act 1988 (Cth) – appeal from AAT decision as to compensation entitlement

ADMINISTRATIVE LAW – denial of procedural fairness – Tribunal conducting own investigation on matter not in issue between parties before it – no opportunity for parties to make submissions on matter

ADMINISTRATIVE LAW – no evidence to sustain Tribunal’s finding

Safety Rehabilitation and Compensation Act 1988 (Cth)

Administrative Appeals Tribunal Act 1975 (Cth) s 33(1)(c)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 cited

Kirkpatrick v The Commonwealth (1985) 9 FCR 36 cited

Gordon M Jenkins & Associates Pty Ltd v Coleman (1989) 87 ALR 477 applied

Comcare v Lees (1999) 56 ALD 84 cited

AUSTRALIAN POSTAL CORPORATION v BEN KEMBER

A58 OF 2002

FINN J

1 AUGUST 2003

CANBERRA

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

CONSTITUTED BY SENIOR MEMBER Allen

THE COURT ORDERS THAT:

            1.         The decision of the Tribunal of 14 November 2002 be set aside.

            2.         The matter be remitted to the Tribunal for determination according to law.

            3.         The respondent pay the appellant’s costs.

THE COURT RECOMMENDS THAT:

            1.         For the purposes of order 2, the Tribunal be differently constituted.

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

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

CONSTITUTED BY SENIOR MEMBER Allen

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of the Administrative Appeals Tribunal (“the Tribunal”) setting aside a reviewable decision and remitting the matter to the applicant, Australian Postal Corporation (“the APC”), with a direction that the respondent, Ben Kember, continued to be entitled to designated compensation under the Safety Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”).

2                     The Tribunal’s decision was an ex tempore one.  It is fair to say that some of the difficulty in this application is a consequence of that fact.  Some allowance must be made for the imprecision in language and for the degree of opacity and apparent inconsistency in reasoning in the decision, though not so as to disregard any demonstrable error of law:  cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.  This said I am satisfied that the reasons betray such an error.  Having determined not to base its decision on “any evidence from the applicant”, it created a state of affairs in which there was no evidence to sustain its ultimate finding:  Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-356.

Factual Setting

3                     Mr Kember is an employee of the APC.  On 13 July 2001 he made a claim under the SRC Act for a “back injury to lower back”.  The injury said to have been was sustained at work while he was using an electronic trolley jack to lift a basket.

4                     On 23 August 2001 the APC made a determination in which it accepted liability under s 14 of the SRC Act “in respect of strain to lower back” and it authorised payment under s 19 up to 25 August 2001.  It was not satisfied that there was liability to pay compensation beyond that date.  Reconsideration of that determination was sought.  It was affirmed on 26 September 2001.  A later determination of 3 December 2001 varied the “reviewable decision” of 26 September to make plain that the APC denied liability under “all relevant provisions of the Act”.

5                     Mr Kember had previously applied to the Tribunal on 4 October 2001 for review of the reviewable decision.

The Tribunal’s Decision

6                     The Tribunal found that the applicant did injure his back on 3 July 2001 although the “exact details of just how he managed to incur the injury are not clear”.  He was treated by his general practitioner on the day after he was injured.  A CT scan was recommended shortly afterwards which in turn was followed by an MRI scan on 30 August 2001.  The latter scan, which the Tribunal indicated made the matter “clear”, showed that “there is no disc herniation or protrusion nor nerve route involvement at any level of the lumbar spine”.

7                     Mr Kember’s evidence was that after he saw his general practitioner (a) he spent the next two and a half to three months in bed;  (b) the pain was so often so severe that he became nauseous;  (c) he had pain in his left leg;  (d) he recommenced a return to work program in July 2002 and recently while at work became nauseous because of the pain, vomited and was taken to Canberra Hospital where he was administered cortisone intravenously – though his discharge summary from the hospital made no mention of any such treatment recording, apparently “No treatment given”.

8                     The Tribunal noted that:

“During the course of his cross examination, the applicant was asked to demonstrate his ability to walk.  He demonstrated a shuffling gait.  He also was particularly careful in sitting when required to go into the witness box and upon resumption of the Tribunal after adjournments.

This was in direct contrast to video film taken of the applicant showing him walking freely.  The video films also showed the applicant walking upright, whereas Dr Sharma said that whenever she saw the applicant, he had a forward flexion of 10 per cent.  The video film also appeared to show the applicant placing weight on his left leg, in contrast to his evidence, in which he said he got pain when performing this action.  He also appeared to bend freely and lift shopping bags from a trolley into a motor vehicle.

In fairness to the applicant, it must be noted that the applicant’s wife was shown as carrying a child rather than the applicant, and this is consistent with his evidence that he cannot lift his children.”

9                     The Tribunal subsequently commented that:

“I have considerable doubts as to the applicant’s veracity.  I find that given the demonstration of walking he gave in the Tribunal compared to the video film that he embellishes his degree of incapacity.  Further, I do not accept his account of continually vomiting with pain when until recently no medical practitioner has noted this.  His explanation of having an intravenous infusion of cortisone is most unusual treatment, but in any event, the discharge summary states, “No treatment given”, and I see no reason to doubt that document.  My decision is therefore based upon the medical reports rather than any evidence from the applicant.”  Emphasis added.

10                  Oral evidence was given by six medical practitioners who also provided reports (as did several other doctors).  The six were Dr Colin Andrews, a consultant neurologist, Dr Jeremy Hopkins, a consultant orthopaedic surgeon, Dr David McGrath, a musculoskeletal & occupational physician, Dr Ross Mellick, a consultant neurologist, Dr Ronald Rivett, a consultant in musculoskeletal injuries, and Dr Divya Sharma, a general practitioner.

11                  Their evidence was described and characterised as follows:

“The preponderance of medical evidence is that the applicant suffered a soft tissue injury, Dr Mellick, or a musculo ligamentous strain, Drs Hopkins, Rivett and McGrath.  What is also apparent is that so far as objective tests are concerned the applicant should have recovered from that strain by now, yet on his evidence he is still experiencing acute pain.”

12                  Having then made the “veracity” finding to which I have referred, and after indicating that its decision would be “based upon the medical reports” the Tribunal went on:

“The medical reports refer to a functional overlay or abnormal illness behaviour.  I was impressed by the evidence of Dr Hopkins and his reports, and also by the evidence of Dr Mellick.  Dr Mellick while stating that on his testing there was no evidence of pain was prepared to accept the applicant as having a genuine psychogenic based reaction.

The opinions of Drs Hopkins and Mellick are not at odds with the opinion of Dr McGrath who opined on 10 April 2002 that the applicant could return to some restricted form of work with an exercise program.  It is clear that the applicant is capable of some work, but still has problems, and this is only explicable by a ligamentous strain to the back.

Although the applicant’s current condition is psychological rather than physiological, the only explanation is that it arose out of or was contributed to by his work accident.  It may well be that he was vulnerable, but there is no real evidence on this point.

Likewise, there is no evidence upon which I could make a finding that he was a malingerer, which is a diagnosable psychiatric condition – see the Diagnostic and Statistical Manual, volume 4 at page 701.  Although the applicant does meet three of the specified indicia for that finding to be made.  On the other hand, a factitious disorder may also be hypothesised.  Given the material before me, I can only conclude that the applicant still suffers some sequelae from his work injury overlaid by some form of psychological impairment as a result of the said injury.”  Emphasis added.

13                  I merely comment in passing that the inconsistencies in the above are patent.

14                  In consequence of its finding the Tribunal set aside the reviewable decision and made the direction I noted at the outset.

The Present Application

15                  Given the view I take of this matter I need only refer to two of the appeal grounds raised by the APC.  They are:

“1.       Whether there was a denial of procedural fairness by the Tribunal to the present Applicant.

2.         Whether the Tribunal misdirected itself and therefore erred in law by treating itself as bound to find that the present Respondent suffered from “some form of psychological impairment”.”

I will deal with the second of these first.

1.         “Psychological Impairment”

16                  The applicant’s case can be put shortly.

(a)        The Tribunal found Mr Kember sustained a soft tissue injury on 30 July 2001.  There was no evidence of any objective investigations capable of confirming such a diagnosis.  Mr Kember’s claim of ongoing incapacity and pain was based solely on his own testimony.  Both Dr Hopkins’ and Dr Mellick’s reports and evidence referring variously to “psychological overlay” and “psychogenic factors” were based on Mr Kember’s conduct and claims during their respective examinations of him.  Neither of the doctors was a psychiatrist.  Their proferred psychiatric explanations which might account for Mr Kember’s symptoms were grounded on an acceptance of his claims.

(b)        The Tribunal determined that its decision should not be based on “any evidence from the applicant” given its doubts as to his veracity.  By so doing it took away the evidentiary foundation for the opinions of Doctors Hopkins and Mellick on the “psychological issue”.  In consequence it erred in relying on those opinions in that regard.

(c)        Having concluded that Mr Kember’s current condition is psychological rather than physiological, the Tribunal appears to have taken the view that it had to discount Mr Kember being a “malingerer” notwithstanding that that subject, or for that matter “factitious disorders”, did not arise at all in the evidence before the Tribunal.  It erred in this respect.

17                  The respondent’s contentions commence with the Tribunal’s ultimate decision.

(i)         The applicant still suffers from and, therefore is entitled to be compensated for, “the work caused injury of ligamentous back strain”.  Several of the doctors including Dr McGrath expressed the opinion that he continued to have a “joint strain”.  There was evidence of ongoing symptomatology which the Tribunal was prepared to accept “as sequelae from his work injury”.

(ii)        The “veracity” finding did not, in its context, amount to a complete disregard of Mr Kember’s evidence.  It found he embellished his degree of incapacity.  It did not have implicit in it a finding that he had no incapacity.  The Tribunal was in consequence entitled to accept from the medical evidence that there remained evidence of ongoing symptomatology.

(iii)       Malingering was not in issue before the Tribunal.  The Tribunal was not obliged to satisfy itself that malingering had been made out.  All it did in relation to the subject was to exercise its powers under s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) “to inform itself on any matter in such manner as it thinks appropriate”.

18                  For my own part I consider the Tribunal’s decision is infected with more than erroneous fact finding and demonstrably unsound reasoning.  The Tribunal appears to have arrived concurrently at quite contradictory findings – one that Mr Kember’s current condition is psychological, the other that he still has ligamentous strain to the back – before acting on the latter as its ultimate conclusion, but without explanation save for the thoroughly unilluminating reference to “Given the material before me”.

19                  The critical issue, in my view, is the significance of the finding made as to Mr Kember’s veracity.  I would note in passing that his credibility was strongly in issue in the case put by the APC to the Tribunal.  I do not accept the respondent’s attempt to read the finding down to only a qualified rejection of his evidence.  I am satisfied it was a “soft” form of credibility finding that was understandable in the context of an ex tempore decision but which led to a complete rejection of his evidence.

20                  In light of that finding I do not consider that it was open to the Tribunal to act upon medical opinions based on Mr Kember’s claims and this was especially so of the “psychiatric” explanations.  Such was not simply a matter of illogical reasoning.  It amounted to accepting opinion evidence which, given the Tribunal’s view of Mr Kember’s evidence, was stripped of foundation.

21                  To the extent the Tribunal left it to the “medical reports” to determine whether Mr Kember still suffered either from ligamentous strain to the back or from some psychological condition, it made the medical practitioners the final decision makers on Mr Kember’s credibility.  That was not a function assumed by them at the time of their examination – though it was of course open to them to express views on Mr Kember’s veracity if relevant to their diagnosis.  In the event, their reports simply assumed favourably to Mr Kember what, in light of the credibility finding, required to be proved.

22                  It is unsurprising, for example, that Dr Mellick would make the following responses in cross examination:

“In terms of his complaints of pain and his presentation of anxiety, did you perceive any falsehood or attempt to mislead you in that respect? --- No, I think that – I always believe what – basically, always believe what the patient says, and always accept the evidence on face value.  Now, I think Mr Kember was genuine in the sense that you’re putting the question to me.  However, I must draw your attention to the findings on physical examination on page 2, not to challenge his genuineness because the word is not a medical word really, but it carries sort of moral implications or ethical implications, and there is something which I think has to be raised here in relation to the matter that you’re speaking about, which is his anxiety and its aetiology.  You will note that in the physical examination, I’ve drawn attention to marked inconsistencies – third last paragraph on page 2.  Do you see that?

Yes, certainly? --- Now, I’m not suggesting that those inconsistencies were due to the fact that Mr Kember was not genuine and was trying to trick me.  I’m not making any comment about the reasons for the inconsistencies because the truth is, it’s not neurology.  But the point of the inconsistencies is to emphasise that there were psychogenic factors of significance here.  Whether those psychogenic factors were consciously directed, or whether they were unconsciously directed, is something which I really can’t comment about.”  Emphasis added.

23                  There is, in my opinion, no evidence to sustain the Tribunal’s conclusion and I would allow the appeal on this ground.

(b)        Procedural Unfairness

24                  The Tribunal’s concern with Mr Kember’s psychological condition is difficult to divine from its reasoning.  It does, though, appear to be the case that having accepted that Mr Kember’s condition was psychological, it had to eliminate malingering as being the cause of his condition.  It went on to do so.  In so doing it exposed itself to the second of the APC’s challenges to its decision to which I previously referred.

25                  The APC contends that it was denied procedural fairness in that, in relation to a matter that was not in issue between the parties at the hearing, ie malingering, the Tribunal conducted its own investigation into that matter without affording the APC an opportunity to call evidence or to make submissions.  Its conduct went well beyond consulting a medical dictionary for the purpose of understanding medical evidence:  cf Kirkpatrick v The Commonwealth (1985) 9 FCR 36 at 42.  In its reference to Diagnostic and Statistical Manual of Mental Disorders (4^th ed) and in the findings it made in consequence, it identified and then made a finding on what it considered to be an issue without putting it to the parties:  Gordon M Jenkins & Associates Pty Ltd v Coleman (1989) 87 ALR 477.  Procedural fairness was denied.

26                  The respondent submitted, in my view forlornly, that the Tribunal was doing no more than exercising its power to inform itself on a matter.  By way of fall back, it was submitted that if there was a denial of procedural fairness it ought not give rise to any relief as it was of no practical consequence.

27                  There plainly was such a denial for the reasons propounded by the APC.  It is, though, difficult to divine what the relevant question was that the Tribunal considered it was addressing when it made the “no evidence” of malingering finding that it did.  However, it does seem to be the case that it regarded this finding as a necessary precursor to it making its ultimate finding that Mr Kember suffers some sequelae from his work.

28                  As the Tribunal denied the APC the opportunity to adduce evidence and to make submissions in relation to a matter that it regarded as a necessary step in its reasoning process, I cannot say that the denial of that opportunity was inconsequential.  One can only speculate as to what the Tribunal’s conclusion might have been had that opportunity been given.

Conclusion

29                  I have not considered it necessary to deal with the APC’s third ground of appeal which was that the Tribunal had no jurisdiction to determine the existence and causation of psychiatric disease in the absence of a compensation claim for such a disease and in the absence of a Reviewable Decision.  I merely note that the ground itself is said to be based on the Full Court’s decision in Comcare v Lees (1999) 56 ALD 84.

30                  I will order that (i) the decision of the Tribunal of 14 November 2002 be set aside;  (ii) the matter be remitted to the Tribunal for determination according to law;  and (iii) the respondent should be ordered to pay the appellant’s costs.

31                  Further, the Court recommends for the purposes of order (ii), that the Tribunal be differently constituted.

Associate:

Dated:              1 August 2003