Federal Court of Australia
Hickey v Australian Postal Corporation [2023] FCA 57
ORDERS
Applicant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The Applicant pay the Respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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BURLEY J:
1 This is an appeal on a question of law from a decision of the Administrative Appeals Tribunal brought pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The appellant, Kim Hickey, is aggrieved by the decision of a delegate of the respondent, the Australian Postal Corporation (APC), and a subsequent decision of the Administrative Appeals Tribunal, affirming a decision made in 2015, declining liability to continue paying compensation to him pursuant to the terms of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).
2 Mr Hickey was employed by the APC as a Postal Transport Officer in June 1993. On 27 September 1993, he signed an incident report stating that when attempting to pull a hanging mail bag up and away from the mail bag hooks in a street pillar post box he experienced severe pain in his lower back. He lodged a compensation claim on 29 September 1993. The APC accepted liability for lower back injury under s 14 of the SRC Act and for Mr Hickey’s incapacity to work under s 19 for the period from 28 September 1993 to 5 October 1993. It also agreed to pay compensation in respect of medical expenses under s 16 of the SRC Act. It thereafter made payments arising from that acceptance of liability.
3 On 18 March 2014, Mr Hickey was examined by Michael Alexeeff, an orthopaedic surgeon, at the request of the respondent. He gave his opinion that there was no evidence of congenital, constitutional or development pathology, accepted that Mr Hickey did sustain discogenic injury at the L5/S1 level in 1993, but concluded that radicular symptoms had settled in due course, probably by the time Mr Hickey had returned to work in August 1995 and that his status did not reflect a radicular presentation.
4 On the basis of Mr Alexeeff’s report, on 15 January 2015 a delegate of the APC determined that, as of that date, there was no present liability to pay compensation to Mr Hickey pursuant to ss 16 and 19 of the SRC Act. In this context it may be noted that the APC acted as a licensee under Part VIII of the SRC Act having responsibility for managing Mr Hickey’s claims.
5 On 30 June 2015, a reconsideration delegate of the APC made a decision pursuant to s 62 of the SRC Act affirming the decision of the delegate.
6 Mr Hickey filed two applications for review of the decision of the reconsideration delegate, one relating to a claim for psychiatric injury, which is not relevant to the current appeal and is not mentioned further in these reasons, and the other arising from the determination that the APC has no present liability in relation to the back injury.
7 By a decision dated 18 October 2018, the Tribunal found that it did not have jurisdiction to review the decision concerning the back injury. Mr Hickey appealed that decision to this Court and on 2 December 2019 consent orders were made setting aside the decision and remitting the matter to the Tribunal. The Tribunal determined on 1 April 2020 that it did have jurisdiction to review the decision and on 24 July 2020 that the matter should be remitted to the primary Tribunal member for reconsideration.
8 On 20 May 2021, the Tribunal issued the presently relevant decision, affirming the decision made by the reconsideration delegate that as at 15 January 2015 the respondent had no present liability to pay compensation to Mr Hickey under ss 16 and 19 of the SRC Act for the work-related injury: Hickey and Australian Postal Corporation (Compensation) [2021] AATA 1521 at [213].
9 Mr Hickey now appeals from the decision to this Court on the grounds (particulars omitted), that the Tribunal:
(1) erred in law in raising the standard of proof by which Mr Hickey was required to prove the facts at issue, in particular, that he sustained a disc protrusion at the L5/S1 level in the work incident of 27 September 1993, and that the effects of that injury have continued (at [202] to [204]);
(2) made a jurisdictional error because it failed to give adequate reasons in deciding at [203(d)] that Mr Hickey had ceased to suffer from his compensable injury; and
(3) erred in law by not applying the correct test to determine whether Mr Hickey’s incapacity for work or need of medical treatment resulted from the injury.
10 Mr Hickey placed particular emphasis in submissions at the hearing upon ground (2), which it addressed first, before proceeding to grounds (1) and (3). In these reasons I adopt that sequence.
11 For the reasons set out in more detail below, the application must be dismissed.
12 The Tribunal summarised the application for review made by Mr Hickey and then set out the procedural history of the application. It noted that the issues for determination as identified by the parties were whether, as at 15 January 2015, the respondent had a present liability to pay compensation to Mr Hickey in respect of:
(a) the costs of reasonable medical treatment (if any) obtained in relation to an “L5-S1 disc prolapse on the left with a [sequelae] of soft tissue injury right foot”, sustained on 27 September 1993, pursuant to s 16 SRC Act; and
(b) incapacity for work resulting from the injury pursuant to s 19 of the SRC Act.
13 The Tribunal traversed the 22 year history of the proceedings from the initial incident report of 27 September 1993 to the determination made by a delegate of the respondent on 15 January 2015. In this part of its decision, the Tribunal identified various of the medical assessments and determinations made during Mr Hickey’s employment, quoting from parts of the medical evidence. It also referred to medical assessments that had been procured by the parties since 2015, quoting from parts of the material that it considered to be relevant.
14 The Tribunal set out the legislation and general legal principles pertinent to the application, about which there is no complaint on appeal.
15 The evidence in the proceedings was heard by the Tribunal over the course of six days with written closing submissions received after the hearing. During the course of the hearing, the oral evidence of 13 witnesses was received, five of whom were medical practitioners. In addition, the Tribunal received medical reports from a number of additional medical practitioners. The Tribunal itemised the evidence received.
16 The Tribunal reviewed in some detail oral and written evidence of Mr Hickey, quoting from and summarising various aspects of it. At [76] it recorded Mr Hickey’s response to a question as to his symptoms at the time of the injury, whether his symptoms changed after that, and what Mr Hickey feels when he experiences an inflaming event:
Mr Hickey: I had pain going down my leg from my left buttock. There was like jolts of pain...
At first, those symptoms continued for a few days. I had my partner, Lara, bringing me bottles so I could urinate in them because I couldn’t get out of bed and get to the toilet. But when I was able, I made my way to see a doctor and after a few – after a few weeks the spasming attacks of pain subsided substantially. I was just left with a – just a constant like gnawing. I’ve described it in the past as like – like ants eating away at the base of my spine. It’s difficult to put in terms that others would understand but it was just a constant thing and that subsided somewhat over a period of time but it’s never abated. It’s always – there’s always a pain in my left buttock and that’s sort of the situation I have remained with today. I think the only thing that’s changed is over the years I have learned what I should and shouldn’t do in order to avoid inflaming the area because once I stir things up enough, then the problem becomes more constant and more difficult for me to manage. …
Counsel: Can you just describe what you feel when you [have] an inflaming event?
Mr Hickey: Well, if I stand for an extended period just in the one spot, and I keep my weight evenly on both feet, what can often happen is after a period of an hour or so, I don’t know three-quarters of an hour, it just depends, when I lift my left foot off the ground I get a sciatic discharge down my leg and that ---
Counsel: What’s that? Can you just explain, what you mean by a sciatic discharge?
Mr Hickey: Well it’s like – it’s like back in the van when the injury first happened, when I first was trying to get in and out of the van using the bar work, it’s excruciating. It’s like almost an electric discharge but it’s violent and extremely painful. It lasts for a very short-term, like a bolt of electricity, but then I’m more susceptible to further discharges the same and that constant pain that’s in my left buttock is magnified until things settle down and that can be a coin toss in the air. It just depends on some many variables that I still can’t predict to this day. Sometimes it can settle down within the day, or the day after, and sometimes I’m stuck with it for a week, just the increased pain in my left buttock, and I’ve got [to] nursemaid through to make sure that I don’t do anything that’s going to trigger that discharge, as I call it, like that shooting pain. Once – that’s a trigger for greater pain. I pay for that. Once that happens I’m – I have to watch myself more carefully. …
17 The Tribunal referred to the cross-examination of Mr Hickey about covert surveillance of him performing a range of activities, which the Tribunal described as including erecting a shed on his property and driving 67 kilometres. The Tribunal also quoted a passage of Mr Hickey’s evidence as follows:
Counsel: …Coming to your back condition you had an improvement of symptoms after six weeks following the incident of lifting a bag, didn’t you?
Mr Hickey: Yes
…
Counsel: The intense symptoms went away, didn’t they?
Mr Hickey: No, not entirely.
Counsel: It’s the case that the symptoms haven’t radiated to your ankle since 1993, isn’t it?
Mr Hickey: No, that’s not the case at all.
Counsel: It’s the case that they’ve been fluctuating, or getting better and worse over time, isn’t it?
Mr Hickey: yes, well, it is – I would describe it as intermittent.
18 The Tribunal then reviewed in detail from [79] to [125] the evidence of four orthopaedic surgeons, Barrie Slinger, Desmond Williams, Frederick Phillips and Mr Alexeeff, quoting extensively from parts of their oral and written evidence.
19 The final part of the decision is entitled “consideration”. In it, the Tribunal provides a timeline of the medical evidence, setting out the extensive history of medical review of Mr Hickey’s injury and quoting from various medical reports. It then summarises the parties’ contentions before a section entitled “The Tribunal’s observations and findings” where the decision records that the Tribunal has considered the entirety of the evidence and the parties’ submissions, which in its view supports the observations and findings that follow.
20 The Tribunal then made the following findings in relation to the evidence of Mr Hickey:
199. On the day of his accident, being 27 September 1993, Mr Hickey claims to have experienced a sharp stinging pain on the left side of his lower back while lifting a mail bag from a hook while at work. Mr Hickey claims that he continued with his work and was in significant pain within around half an hour. Mr Hickey claimed that he then rested at home for a day or so. At the hearing, Mr Hickey said at this time, he had jolts of pain going down his left leg from his left buttock and that these symptoms lasted for a few days. Mr Hickey gave evidence that he had an improvement in his symptoms six weeks after the incident. Mr Hickey consistently maintained that since the accident to the present day he is susceptible to episodes of pain, including intense symptoms that radiate to his ankle, triggered by variables that he is unable to predict. The Tribunal accepts that this is Mr Hickey’s account of his own subjective pain experience over time.
21 It is relevant to the grounds of appeal to set out the manner in which the Tribunal addressed the conflicting medical evidence (emphasis in original):
Expert opinions
200. The numerous medical experts had differing opinions on various aspects of Mr Hickey’s symptomatology, radiology, diagnoses and theories as to causation. The expert reports spanned a period of over 25 years are featured throughout the parts of this decision [sic]. The Tribunal considers a number of key aspects of these reports are central to the issues before the Tribunal:
(a) Mr Slinger is of opinion [sic] that Mr Hickey suffered an acute disc herniation as a result of the incident on 27 September 1993. Mr Slinger also considered that as at 31 October 2016, Mr Hickey’s disability related in the “major part” to the original injury in 1993 and that his chronic symptoms were a result of the injury and were not a naturally occurring process. Mr Slinger considers that it is reasonable to subscribe Mr Hickey’s symptoms to the 1993 injury given his continuous symptoms since that time.
(b) Dr Williams agrees with Mr Slinger in this regard. Further, Dr Williams is of the view that Mr Hickey’s disc protrusion has not resolved and he does not accept Mr Alexeeff’s view that Mr Hickey’s condition, that was contributed to by Mr Hickey’s employment, has ceased.
(c) Mr Alexeeff considers it is likely that Mr Hickey did suffer a disc protrusion following the accident and his that [sic] radicular presentation has settled. Mr Alexeef is of the view that Mr Hickey’s symptoms reflect mechanical low back pain. Mr Slinger and Dr Williams do not understand what Mr Alexeeff means by the phrase, “mechanical low back pain”.
(d) Mr Phillips was of the view that the condition that arose from Mr Hickey’s accident was an acute strain with possible minor irritation of the left S1 nerve root and that this condition had resolved within three months. Mr Phillips was also of the view that Mr Hickey suffered an episode of back pain and diagnosed him with chronic pain complaints and psychosocial issues.
201. Broadly, Mr Slinger’s and Dr Williams’ opinions sit together agreeably, as do those of Messrs Phillips and Alexeeff. Mr Phillips’ opinions, however, are espoused within the parameters of his belief that despite the fact a disc protrusion was identified on a scan, this does not mean that the disc protrusion was:
(a) the injury that was suffered;
(b) caused by the incident; or
(c) the responsible pain generator, i.e. the phenomenon that is causing the pain symptoms,
despite any negative view that could be taken by the fact that he did not view Mr Hickey’s radiological scans themselves, only the reports that were derived from those scans.
202. It appears to the Tribunal that in Mr Phillips’ view, the differing views of his colleagues about what the radiological imaging showed is irrelevant, because whatever radiological changes were present cannot be said to be the injury without corroboration and there is no corroborative evidence as such. On this basis, the Tribunal finds that Mr Phillips’ evidence is that:
(a) while the 1993 incident could have caused Mr Hickey’s disc protrusion, if it had, he would have expected Mr Hickey’s symptoms to have been different;
(b) Mr Hickey’s radiological changes are not consistent with the claimed incident; and
(c) to say that the radiological changes and their progression over time are from Mr Hickey’s injury is an assumption. There is no evidence that the protrusion itself is causing Mr Hickey’s pain.
203. If Mr Phillips’ views are adopted, then the Present Application would fail. This is because:
(a) Mr Hickey’s contention that he continues to suffer from the effects of the injury sustained on 27 September 1993 is based on the medical findings that his continued symptoms are because of the disc protrusion (extrusion or herniation or however described) of the L5/S1 level which occurred on that date. Mr Hickey relies on the opinions of Mr Slinger and Dr Williams that the temporal connection of pain at the time of the activity indicated that it was the activity that caused the injury.
(b) To rely on the temporal connectivity as the rationale for submitting that both the effects of the injury and the injury itself have continued over time is, according to Mr Phillips, presumptuous, incorrect and lacks the necessary corroborative evidence. The Tribunal agrees with Mr Phillips’ opinion.
(c) Mr Hickey also relies on the radiological evidence of the presence of a disc herniation to support his contention that the injury has continued and evolved over time. Mr Phillips, as noted above, casts doubt on whether the presence of a disc herniation itself, whether shortly after the injury or some years later, without corroborative evidence, would mean that the disc injury is the injury that was suffered, that the disc injury was caused by the accident or that the disc injury is what has generated Mr Hickey’s continuous pain symptoms since 1993.
(d) The more recent radiological evidence, and most recently the x-ray of Mr Hickey’s lumbar spine dated 18 March 2014, has not identified pathology consistent with disc protrusion or further deterioration at the L5/S1 level, which might have been expected following a disc protrusion injury, according to Mr Phillips. This is, in the Tribunal’s opinion, consistent with the views held by Messrs Phillips, Alexeeff and Schaeffer that Mr Hickey’s physical condition arising from the incident, which at the least involved the structures of the lower spine, ought to have resolved within months of the incident and that the symptoms from which Mr Hickey had suffered since around the late 1990s are a result of other, unrelated factors. Therefore, the Tribunal adopts the views of Messrs Phillips, Alexeeff and Schaeffer in this regard and finds that Mr Hickey had ceased to suffer from his compensable injury in the mid to late 1990s.
204. Mr Hickey submits that there is no evidence he had ever recovered from the effects of the injury that occurred on 27 September 1993 and rather, his condition had continued and evolved over time, such that any degenerative change was contributed to by the disc herniation in 1993. Even if this proposition regarding degenerative change were accurate (and given the Tribunal’s findings at paragraph [203(b)] above, the Tribunal makes no such concession), it serves no purpose in alleviating the Tribunal’s concerns imposed by Mr Phillips at [202] and [203] above. Again, this is particularly the case given that the most recent radiological study (being the x-ray of Mr Hickey’s lumbar spine dated 18 March 2014) has not identified pathology consistent with acute disc protrusion.
205. Mr Hickey submits that the Tribunal ought to find Mr Slinger’s opinion to be the most persuasive, on the basis that he is the only expert in this matter who has a specific focus on spinal surgery management. In making this submission, Mr Hickey is effectively asking the Tribunal to accept that his ongoing symptoms continue to relate to the incident on 27 September 1993, without having explained how (in the absence of ongoing clinical signs of radiculopathy over this period of time, or other corroborative evidence) this continues to be the case. Mr Hickey essentially asks the same question in submitting that the compensable injury itself has continued to the present day. The Tribunal has noted its concerns with this approach at paragraph [204] above and in turn prefers the approach adopted by Mr Phillips, which in the Tribunal’s view does not pose such concerns.
206. Mr Hickey also relies on there having been no challenge to his evidence as to the pain symptoms. At no point was there a suggestion by the parties as to any issues with Mr Hickey’s credibility as a witness or issues with accuracy in his recollections. The Tribunal also had no issues in this respect. In any event, Mr Hickey’s evidence as to his pain symptoms is evidence of his own subjective experience of his pain. Similarly, any medical professionals’ opinion will be based on a person’s description of that subjective experience. Therefore, in the Tribunal’s view, nothing turns on the fact that there was no challenge to Mr Hickey’s evidence as to his symptoms in this matter.
22 The Tribunal concluded at [209] that Mr Hickey had sustained a work-related injury on 27 September 1993, which he believes was a disc protrusion/extrusion/herniation at the L5/S1 level. Since this time, he has consistently reported pain symptoms. It found, for the reasons given, that while Mr Hickey did sustain a work-related injury on 27 September 1993, which could have been a discogenic injury at the L5/S1 level, the effects of that work-related injury had ceased by the mid to late 1990s. It went on to say at [210]:
That is, if the Tribunal had accepted (which it did not) that Mr Hickey’s work-related injury was a disc protrusion, the evidence is that it should have settled within several months and that Mr Hickey’s ongoing symptoms and progressive degenerative change are unrelated and/or not of the kind to be expected from a disc protrusion injury.
23 The Tribunal found that, as at 15 January 2015, Mr Hickey no longer suffered from the work-related injury itself because, even if it were to accept that Mr Hickey’s work-related injury was a disc protrusion, then:
211. …this should have settled within months of onset and in any event, there is doubt cast over whether the protrusion was caused by the lifting incident in the first place. Similarly, even if Mr Hickey’s work-related injury was of a different nature, the Tribunal is not satisfied that there is radiological or other medical evidence to demonstrate that Mr Hickey continued to suffer from its effects as at 15 January 2015.
212. Therefore, as at 15 January 2015, the APC had no present liability to pay compensation to Mr Hickey under ss 16 and 19 of the SRC Act for the work-related injury.
24 The decision of the Tribunal was made pursuant to s 43 of the AAT Act. Section 43(1) of the AAT Act provides that, for the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision, and shall make a decision affirming the decision under review, varying that decision, or setting aside that decision and making a decision in substitution of it or remitting the matter for reconsideration.
25 Section 43(2) of the AAT Act relevantly provides that, subject to s 43, the Tribunal shall give reasons either orally or in writing for its decision. Section 43(2B) provides:
Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.
26 An “appeal” to this Court arises under s 44 of the AAT Act. It is an appeal that arises in the Court’s original jurisdiction and is limited to an appeal on a question of law.
27 In Tarrant v Australian Securities and Investments Commission [2015] FCAFC 8; 317 ALR 328 at [100] (Rares, Yates and Griffiths JJ), the Full Court identified the following principles relevant to applying the scope of an appeal under s 44, which I gratefully adopt, excising cited references:
(a) the phrase “on a question of law” is narrower in scope than an appeal which merely “involves” a question of law, with the consequence that where an appeal lays “on a question of law”, the subject matter of the appeal is the properly framed question or questions of law …;
(b) the narrow sense in which an “appeal” lays to the Court from any decision of the AAT on a question of law “is entirely consistent with a statutory intention to limit the Court’s review of factual findings” …;
(c) generally speaking, a mixed question of law and fact is not a “question of law” for the purposes of s 44 of the AAT Act …;
(d) some of the kinds of errors of law which are amenable to review under s 44 of the AAT Act are reflected in the following statements by the Full Court (Black CJ, Drummond and Ryan JJ) in Repatriation Commission v Hill [2002] FCAFC 192; (2002) 69 ALD 581 (Hill) at [59]:
If a tribunal falls into an error of law “which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers”: see Craig v State of South Australia (1995) 184 CLR 163 at 179. An error of law of this kind may support an appeal under s 44 of the AAT Act on a question of law: cf The Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225 at 231-232 per Wilcox, Burchett and French JJ;
(e) ordinarily there is no error of law simply in making a wrong finding of fact … However, a determination of a question of fact by the AAT may give rise to a question of law, including (non-exhaustively) in circumstances where there is a question raised whether the AAT has identified the relevant legal tests to be applied; whether the Tribunal has in fact actually applied the correct test even if its reasons suggest otherwise; whether there is evidence to support a finding of fact, whether facts found fall within a relevant statutory provision and whether the AAT has adopted a manner of decision-making which fails to discharge its obligations according to law …;
(f) findings or inferences of fact that are not supported by logical grounds may also give rise to an error of law and be reviewable under s 44 of the AAT Act … in the context of judicial review for jurisdictional error as opposed to a s 44 AAT Act appeal …;
(g) the weighing and evaluation of various pieces of evidence is a matter for the AAT and is generally not susceptible to review in either judicial review proceedings for jurisdictional error … or in an “appeal” under s 44 of the AAT Act. … As the Full Court (Fox, Deane and Morling JJ) observed in Collins v Minister for Immigration and Ethnic Affairs(1981) 58 FLR 407 at 410-411 in the context of an appeal under s 44 of the AAT Act and in response to a claim that a Tribunal decision was against the evidence or the weight of the evidence (emphasis added):
A number of authorities was cited by counsel for the appellant in support of the propositions that the making of a decision against the evidence or the weight of the evidence and the making of an unreasonable decision are errors of law. We find it unnecessary to examine these authorities for the reason that, in our opinion, there is no factual basis to found those propositions. We would, however, comment that the concepts of a decision being against the evidence and of being against the weight of the evidence belong to appeals from courts of law and have particular application to jury verdicts. Even in that context, they did not involve questions of law. They certainly have no place when the appeal, or review, is of proceedings of an administrative tribunal which is not bound by the rules of evidence, subject to their obligation to observe the requirements of natural justice, can inform itself as it chooses (see, s 33(1)(c) of the Administrative Appeals Tribunal Act 1975.) An appellant who attacks a conclusion of the Tribunal because of deficiency of proof said to amount to error of law must show, if he is to succeed, that there was no material before the Tribunal upon which the conclusion could properly be based; and
(h) the Court has acknowledged that, in at least some circumstances, the Court itself might frame questions of law in order to found its jurisdiction under s 44 of the AAT Act. …
28 The decision of the Tribunal concerns the application of ss 16 and 19 of the SRC Act and the definition of “injury” in ss 5A, 5B. Pursuant to s 16(1), where an employee suffers an injury, Comcare (or its licensee, the APC) is liable to pay appropriate compensation in respect of the cost of medical treatment that was reasonable to obtain in relation to the injury. Section 19 provides that Comcare is liable to pay compensation to an employee who is incapacitated as a result of the injury and sets out how that compensation is calculated. Injury is relevantly defined as:
5A Definition of injury
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is 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), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment
…
5B Definition of disease
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
4. GROUND 2 – FAILURE TO GIVE ADEQUATE REASONS
29 In ground 2, Mr Hickey contends that the Tribunal made a material jurisdictional error because it failed to give adequate reasons in deciding at [203(d)] that Mr Hickey had ceased to suffer from his compensable injury.
30 Mr Hickey submits that the Tribunal is required to give reasons and, in doing so, include findings on material questions of fact and a reference to the evidence or other material on which those findings were based, citing ss 43(2) and 43(2B) of the AAT Act. He submits that the duty to give reasons is not satisfied merely by setting out its findings on material questions of fact and identifying the basis for those findings. The duty to give reasons carries with it the obligation to expose the reasoning process to a level that is sufficient to enable a party to understand why it lost and decide whether the decision involved an unwarranted finding of fact, or an error of law, which is worth challenging. He submits that in setting out the relevant law and the findings of fact on which the conclusions depend, the reasoning process must be revealed for those conclusions, especially if the facts are disputed, citing Wonson v Comcare [2020] FCAFC 76; 276 FCR 613 at [89], [90], [93] (Katzmann, Anastassiou and Abraham JJ). Mr Hickey accepts that where, as here, there is no right of appeal against findings of fact, a failure to state the basis of even a crucial finding, if it involves no legal standard, will only constitute an error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done, citing Wonson at [95] and [111]. He further submits that there will be a failure to give adequate reasons where a decision maker ignores evidence critical to an issue and contrary to an assertion of fact made by one party and accepted by the decision maker, citing Tudor Capital Australia Pty Ltd v Christensen [2017] NSWCA 260 at [387] and [388] (McColl JA, Macfarlan JA agreeing).
31 Mr Hickey identifies in his written submissions five separate errors arising from the reasons of the Tribunal in [196] to [206] to show that the Tribunal failed meaningfully to engage with the substance of competing expert opinions, the consideration of which he submits was decisive. Although these alleged errors do not in all respects match the particulars appended to ground 2, the respondent made no complaint about the drift and I proceed on the basis that these points, as developed in closing submissions, represent the case advanced.
32 In his oral submissions Mr Hickey more generally contended that the Tribunal failed to perform its fundamental task of explaining how it is that Mr Hickey was unsuccessful in his case, particularly having regard to the evidence concerning the symptoms of pain experienced by Mr Hickey in contrast to the way in which the evidence of Mr Phillips was treated.
33 The first specific error alleged relates to the Tribunal’s acceptance of Mr Phillips’ opinion insofar as he discounted the significance of the radiological evidence on the basis that it did not prove that it caused Mr Hickey’s symptoms in the absence of “corroborative evidence”.
34 Secondly, Mr Hickey contends that the Tribunal’s observations at [202(b) and (c)] that the radiological images were not consistent with the 1993 injury were unexplained in the face of the evidence of Mr Phillips, which was to contrary effect.
35 Thirdly, Mr Hickey contends that the Tribunal failed to explain why it concluded at [203(d)] that the x-ray of 2014 was not consistent with a previous disc protrusion in the face of competing evidence from Mr Phillips nor with evidence that the most recent radiological evidence was the 2016 MRI scan.
36 Fourthly, Mr Hickey contends that the Tribunal failed to explain how or why it held in [203(d)] that Mr Alexeeff’s and Mr Schaeffer’s opinions were consistent with the opinion of Mr Phillips that Mr Hickey’s physical condition arising from the incident ought to have resolved within months and that the symptoms that he has suffered since around the late 1990’s are a result of other, unrelated factors, particularly when taking into account the content of aspects of Mr Schaeffer’s second report.
37 Fifthly, Mr Hickey contends that the Tribunal failed to explain how it was that Dr Slinger’s opinion as to the ongoing nature of the symptoms experienced by Mr Hickey was rejected, having regard to the detail of his evidence.
38 As noted above, s 43(2) of the AAT Act imposes a duty on the Tribunal to give reasons for its decision.
39 In Wonson, the Full Court observed that the obligation imposed by s 43(2B) only extends to the findings that the Tribunal has actually made and not to findings a Court on appeal considers it ought to have made: at [89], citing V324 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 259 at [8] where Hill and Allsop JJ made the following observations:
The terms of the provision are clear. It is necessary for the Tribunal to record its findings of the facts that it considers to be material. That proposition was also made plain by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 in considering the similarly worded s 430 of the Migration Act. There are differences between s 430 and s 43(2B), but these differences only reinforce the proposition that s 43(2B) only requires that it is the findings of fact which, in the opinion of the Tribunal, are material that need to be set out in the reasons. Merely because the Court is of the view that the matter should have been approached in a different way or that important factual questions have not been addressed does not lead to the conclusion that there has been a failure to comply with s 43(2B). Nevertheless, as was pointed out in Yusuf at [31], [74], [75] and [82], the absence of findings by the Tribunal on certain matters or the nature of the findings actually made may disclose that the Tribunal has failed to attend to the task given to it by the statute. The findings, including the absence of findings, may, in that way, disclose jurisdictional error.
40 The Full Court in Wonson further observed at [90] that the Tribunal’s duty to give reasons is not satisfied merely by setting out its findings on material questions of fact and identifying the bases for those findings. The duty to give reasons carries with it the duty to expose the reasoning process sufficiently to enable a party aggrieved by the decision to understand why the party lost and to decide whether the decision involved an unwarranted finding of fact, or an error of law, which is worth challenging, citing Ansett Transport Industries (Operations) Pty Ltd v Wraith [1983] FCA 187; 48 ALR 500 at 507 (Woodward J). Put another way, the reasons must set out “the actual path of reasoning” by which the decision maker arrived at its opinion and explain that path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law: Wonson at [92], citing the High Court in Wingfoot Australia Pertners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480 at [55].
41 The fact that the present appeal is confined to questions of law is relevant to consideration of the adequacy of reasons. The legislation has determined that an appeal to this Court from the decision of the Tribunal does not amount to a merits review. Questions of disputed fact are the domain of the decision maker below. The grounds of review available are not centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [74] (McHugh, Gummow and Hayne JJ). It is in this context that the observation of McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 281 may be understood, which is that where no right of appeal is given against findings of fact, a failure to state the basis of even a crucial finding of fact, if it involves no legal standard, will only constitute an error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done.
42 Furthermore, the weighing and evaluation of various pieces of evidence is a matter for the Tribunal and is generally not susceptible to review under s 44 of the AAT Act. Ordinarily, there is no error of law simply in making a wrong finding of fact: Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135 at [44] (Gleeson CJ, Gummow, Kirby and Hayne JJ). In this regard, see also Tarrant at [100(g)] as set out at [26] above.
43 In Wonson, the conclusion that the reasons given were inadequate was explained in the following practical terms at [111]:
It might have been open to the Tribunal to come to the conclusion it did. It was no part of Ms Wonson’s appeal that it was not. But the Tribunal was in breach of s 43(2) of the AAT Act to do so without explaining whether and, if so why, it rejected Ms Wonson’s contention. While the Tribunal was not required to provide a line-by-line refutation of Ms Wonson’s case or her evidence, it was required to do that. As Jagot J observed in Sullivan v Civil Aviation Safety Authority [2013] FCA 1362; 62 AAR 77; 138 ALD 600 at [42], “[t]he duty to give adequate reasons, even in the context of the limits on the duty of the Tribunal under s 43(2B) of the Administrative Appeals Tribunal Act, is shaped by the contentions which the parties put”. While conclusions on primary facts which were not in dispute are unlikely to require explanation, since a person aggrieved by the decision would readily understand how they were reached, “[c]onclusions as to significant facts in dispute are likely to require explanation, if persons affected by the decision are to be given an understanding of the basis for the decision” for, without one, they are unlikely to understand why they lost: Alexander v Australian Community Pharmacy Authority (2010) 233 FCR 575 at [78] (Bromberg J).
44 The analysis by the Tribunal from [199] to [211] addresses the legal issues identified earlier in its reasons, namely whether broadly the APC is liable to continue to pay Mr Hickey compensation and medical expenses in respect of the 1993 injury. It follows an extensive review of the lay and expert evidence and does not purport to repeat that evidence or provide cross-references to the summaries made.
45 The analysis requires close reading and cannot be read in isolation, but rather in the context of the reasons set out as a whole. It is axiomatic that the reasons should not be read with an eye finely attuned to error, but rather with a beneficial construction. The Court should not be concerned with looseness in the language or unhappy phrasing: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at [30]. It is the substance of the reasoning that is important.
46 The Tribunal’s conclusions from [199] to [211] present its analysis of the evidence that it reviewed in the earlier sections of its decision. It is apparent that the Tribunal preferred the evidence of the orthopaedic surgeon Mr Phillips. It accepted his view that the radiological evidence of a disc protrusion suffered by Mr Hickey was not necessarily to be correlated with the 1993 injury or the pain that Mr Hickey subsequently experienced. The Tribunal found at [202] Mr Phillips’ evidence to be that, whilst the September 1993 injury could have caused the disc protrusion that was apparent from the radiological evidence, if it had, he would have expected the symptoms reported by Mr Hickey to be different. It also found his evidence to be that the radiological changes identified in Mr Hickey’s spine were not consistent with the claimed on-going injury and that there was no evidence that the protrusion in his spine itself was the cause of Mr Hickey’s pain.
47 Although the language of the analysis could be clearer, one does not have try hard to understand the evidence to which the Tribunal is referring. The Tribunal earlier set out in detail various aspects of the evidence given by Mr Phillips.
48 At [46] the Tribunal sets out extracts from Mr Phillips’ report of 28 October 2016:
The incident was an episode of low back pain.
The fact that a disc protrusion was identified does not necessarily mean that it was caused by the incident.
Disc protrusions are common in this age group.
The history suggests an acute episode however at lumbosacral level with some irritation of the S1 nerve root.
I have commented on the fact that a more recent plain X-ray has not identified deterioration at the L5/S1 level that one might have expected had there been a significant acute disc protrusion at L5/S1.
I have also made note of the persistence of the left ankle jerk which would not be consistent with there having been comprise [sic, compromise] of this nerve root even after resolution of any disc protrusion.
Thus the condition that arose from the incident of 27 September 1993 was an acute strain, with possible minor irritation of the left S1 nerve root…
My diagnosis is one of chronic pain complaint with psychosocial issues…
In my opinion possible radicular symptoms have settled in keeping with the natural history and discogenic injury in many people for the objective reasons I have explained…
Any physical condition that arose from the incident of 27 September 1993 in my opinion resolved within the expected time frames as is of the natural history which is within three months.
Ongoing symptoms relate to the psychosocial issues which were extensively expressed during this interview and also in the file material…
49 During the course of summarising the evidence of Dr Slinger, at [97] the Tribunal quoted further from Mr Phillips’ report, where he said that he had reviewed an x-ray of 18 March 2014:
which demonstrated remarkably well-preserved disc spaces particularly at L5/S1. The significance of this is that there has not been advanced degeneration as might have been expected following failure of the L5/S1 disc and ongoing complaint…
50 The Tribunal records that Dr Slinger, an orthopaedic surgeon, did not disagree with this opinion, although he notes that there are changes in the facet joints and that, although common, it is not always the case that more significant degenerative changes would be expected following a significant disc prolapse.
51 At [108] to [118] the Tribunal summarises further aspects of Mr Phillips’ evidence. It sets out at [109] a passage where Mr Phillips observed that if someone suffers acute back pain “unless you’ve got corroborating evidence initially it is very difficult – it’s impossible to state that a particular structure has caused that pain”. Mr Phillips further explains that the case history that he obtained from Mr Hickey was not consistent with a disc protrusion, because his main complaint was back pain and only a bit of leg pain whereas “people who have an acute protrusion in that situation have a squashing of the nerve and their main complaint is leg plain, they don’t often complain so much of back pain” (emphasis added). At [111] the Tribunal quotes from Mr Phillips’ evidence where he accepts the radiological evidence of a disc bulge, but repeats his scepticism that merely seeing the presence of the bulge does not mean that it is the pain generator. At [114] it sets out his evidence, which is referable to the finding at [202(a)], that if the incident of 27 September 1993 had caused an acute disc protrusion, he would have expected the symptoms to have been different, with the leg pain being much more intense than any back pain. The Tribunal at [115] then says (bracketed word in original):
When asked to assume that Mr Hickey experienced a disc protrusion in 1993 from the lifting incident, and the questioned whether or not the radiological changes subsequently seen in 2013 and 2016 would then relate back to that incident, Mr Phillips said that they would not relate back and that the radiological changes are “just not [consistent] with that incident”.
52 The Tribunal also set out a passage from the cross-examination of Mr Phillips in which he again gives the basis for his view that Mr Hickey’s disc protrusion is not responsible for his current, ongoing symptoms (at [118]):
You’d have to prove that the disc protrusion is causing the pain. No one’s –people have done the scans and said, “there’s a protrusion, that must be the pain.” … There’s no evidence to the effect that that is the –causing his back pain and to be – you would need clear evidence that it was actually causing his leg pain, noting that he, over the years, his sciatic symptoms have waxed and waned, he’s never had – he’s always had normal reflexes. So if you’ve had impingement on the S1 nerve, you would lose your ankle jerk and there’s no evidence of any ongoing pressure on the nerve.
53 It is tolerably clear from the materials set out by the Tribunal, that when it refers in shorthand to the views of Mr Phillips at [200] to [203] of the decision, it is summarising and accepting the concerns that Mr Phillips expressed that the evidence of a disc protrusion on the radiological evidence is not sufficient per se to persuade him that the pain experienced by Mr Hickey arose from the September 1993 incident. The evidence to which Mr Phillips, and the Tribunal, refers as relevant (or corroborative) in this context consists not only of Mr Hickey’s reported symptoms, but also evidence of expected L5/S1 degeneration (not present) and impaired reflexes (not present).
54 In its reasons at [203] the Tribunal summarises this position. Although not particularly clearly expressed, the path of reasoning may be discerned until one arrives at [203(d)], to which I refer below.
55 Contrary to the submission advanced by Mr Hickey, there was no need for the Tribunal to reconcile the evidence of symptoms given by Mr Hickey and the findings of Mr Phillips. At [199] the Tribunal made its findings of fact as to the symptoms reported by Mr Hickey. Those are not inconsistent with the symptoms reported to Mr Phillips insofar as the Tribunal finds that Mr Hickey gave evidence that he had an improvement in his symptoms six weeks after the incident and that to the present day he is susceptible to episodes of pain, including intense symptoms that radiate to his ankle, triggered by variables he is unable to predict. Mr Hickey did not give evidence of constant leg pain, which Mr Phillips considered necessary to conclude the disc protrusion caused his pain.
56 In [203(d)], the Tribunal addresses the radiological evidence. For convenience I repeat it here:
The more recent radiological evidence, and most recently the x-ray of Mr Hickey’s lumbar spine dated 18 March 2014, has not identified pathology consistent with disc protrusion or further deterioration at the L5/S1 level, which might have been expected following a disc protrusion injury, according to Mr Phillips. This is, in the Tribunal’s opinion, consistent with the views held by Messrs Phillips, Alexeeff and Schaeffer that Mr Hickey’s physical condition arising from the incident, which at the least involved the structures of the lower spine, ought to have resolved within months of the incident and that the symptoms from which Mr Hickey had suffered since around the late 1990s are a result of other, unrelated factors. Therefore, the Tribunal adopts the views of Messrs Phillips, Alexeeff and Schaeffer in this regard and finds that Mr Hickey had ceased to suffer from his compensable injury in the mid to late 1990s.
57 The first sentence is not well expressed. However, having regard to the balance of the reasons, it cannot be said (as Mr Hickey contends) that the Tribunal is here concluding that Mr Phillips disputes the existence of a disc protrusion. Rather, that sentence should be understood to be summarising Mr Phillips’ evidence (referred to in [202] and set out more fully earlier in the reasons) that despite the earlier radiological evidence of a disc protrusion, recent x-ray evidence does not support the view that Mr Hickey’s pathology was consistent with the September 1993 injury causing the disc protrusion and that there was not the evidence of further deterioration at L5/S1 that would be expected following the disc protrusion injury.
58 The balance of [203(d)] is more Delphic. It refers to the views held by Messrs Phillips, Alexeeff and Schaeffer “that Mr Hickey’s physical condition arising from the incident, which at the least involved the structures of the lower spine, ought to have resolved within months of the incident and that the symptoms from which Mr Hickey had suffered since around the late 1990s are a result of other, unrelated factors”. Read with the balance of the reasoning, it is apparent that this is intended to be a cross reference to the earlier descriptions of the evidence of each of these medical practitioners.
59 The Tribunal at [19] and [86] sets out parts of the 4 October 1996 report of Mr Schaeffer, a consultant neurosurgeon, where he records that Mr Hickey informed him that he continues to experience back pain and intermittent leg pain. Mr Schaeffer found his neurological examination to be normal, with ankle reflexes well preserved and no evidence of any muscle weakness or wasting and no abnormal sensory features. The report quoted goes on to say:
I suspect that he has disc degeneration at the L5/S1 level associated with a relatively small degree of laterally placed protrusion of the disc which from time to time results in irritation of the left S1 nerve root. However, it is my impression that he does not suffer from major nerve root compression.
Disc degeneration of this type is a constitutional phenomenon. The condition is not caused by trauma but it is true to say that trauma can have the effect of exacerbating the condition and the action of reaching forward and unhooking and lifting the mail bag on 27 September 1993 would be consistent with an aggravating circumstance.
I regard Mr Hickey’s current condition as being substantially the result of a naturally occurring process and the work incident is consistent with an aggravation of somewhat lesser aetiological importance. …
60 The Tribunal at [87] records Dr Slinger disagreeing with Mr Schaeffer’s proposition that Mr Hickey’s current condition is “not caused by trauma” (emphasis added) and stating that he would expect the action of Mr Hickey of reaching forward and unhooking and lifting the mail bag to cause the L5/S1 protrusion and that Mr Hickey’s condition is “not a naturally occurring process at all”.
61 It is apparent that whilst Mr Schaeffer’s evidence does not refer to the fact that the injury ought to have resolved within months, the Tribunal found that the part of his evidence that disassociates the disc protrusion from the September 1993 incident is consistent with the evidence in Mr Phillips’ report and the evidence of reported symptoms of only intermittent leg pain and normal reflexes are also consistent with the findings of Mr Phillips.
62 The Tribunal records at [32] the content of Mr Alexeeff’s report of 21 March 2014 where he states that:
Obviously [Mr Hickey] did sustain discogenic injury at the L5/S1 level in 1993. It would appear that radicular symptoms settled in due course, with this being in keeping with the natural history of this pathology in approximately 70% of individuals. As a consequence, [Mr Hickey] has maintained symptoms of mechanical low back pain, with this to some degree, being more related to the progressive nature of this pathology, rather than any disc pathology localised to the lumbo-sacral junction. … I am of the view that [Mr Hickey’s] symptoms related to the radicular presentation probably settled within a given timeframe, with [Mr Hickey] returning to employment in August 1995. His status now does not reflect a radicular presentation.
63 Later in its reasons, the Tribunal refers to Mr Alexeeff’s oral evidence where he explained his view that for there to be radiculopathy, clinical signs such as muscle wasting, loss of reflexes and altered sensation would be expected, none of which was in evidence. These may be understood to be confirmatory, or “corroborative” signs that would support a conclusion that the disc protrusion was the ongoing cause of pain. The Tribunal notes at [124] Mr Alexeeff’s evidence that intermittent pain down the leg and fairly constant pain in the lower back and buttocks was not in his view indicative of nerve root irritation. It also notes Mr Alexeeff’s view that, even though Mr Hickey’s symptoms have continued, he did not consider that they could now be a consequence of the disc injury that he suffered in 1993.
64 Whilst the Tribunal could have expressed itself more clearly and also provided explicit cross references to these materials, it is apparent enough how it reasoned to this conclusion. It considered that Mr Phillips was not alone in his view, as set out in the second sentence of [203(d)], that Mr Hickey’s physical condition ought to have resolved within months and that the symptoms from which he had suffered since around the late 1990’s are a result of other unrelated factors. Mr Alexeeff’s evidence as summarised by the Tribunal was in terms consistent with this. Mr Schaeffer’s evidence did not refer to the condition resolving within months, but as recited (and as apparently understood by Dr Slinger) his evidence was that the disc protrusion was not caused by the trauma of the incident of September 1993. Although, on the face of Mr Schaeffer’s report, the Tribunal may have erred in this finding, it was a question of fact which was for it to determine. Furthermore, Mr Schaeffer’s findings regarding Mr Hickey’s symptoms, reflexes and muscle wasting were consistent with the views of Mr Phillips and Mr Alexeeff.
65 Whilst the Tribunal’s conclusion in this respect was expressed by way of a summary, and not with great clarity, in my view the reasoning is sufficiently clear to enable Mr Hickey to understand how it is that the Tribunal arrived at the conclusion in the third sentence of [203(d)].
66 Mr Hickey also relies on a later report of Mr Schaeffer of 9 May 1997 where he concludes that Mr Hickey “has suffered a pre-existing degenerative condition of the L5-S1 disc which is of a constitutional origin and the injury on 27 September 1993 would be consistent with an aggravating circumstance”. That conclusion, along with Mr Hickey’s reports of pain, may be considered to be inconsistent with a finding by the Tribunal that Mr Schaeffer formed the view that the injury ought to have resolved within months of the incident. However, the Tribunal did not in [203(d)] adopt the entirety of the reasoning of Mr Schaeffer. It is apparent from [202] to [205] that the Tribunal accepted the reasoning of Mr Phillips to the effect that there was no on-going effect from the incident of September 1993. To the extent that Mr Hickey submits the May 1997 report of Mr Schaeffer reflects an opinion that should have been followed over the opinion of other experts, that could possibly amount to an error in fact finding by the Tribunal, but it is not a legal error and there is no scope for this Court to engage in a merits review: Soulemezis at 281.
67 Mr Hickey’s case is not improved when one has regard to the five specific instances that it criticises in its submissions.
68 The first challenges the Tribunal’s acceptance of Mr Phillips’ evidence where he discounts the radiological evidence absent “corroborative evidence”. Mr Hickey contends that the Tribunal failed to mention a factual assumption made by Mr Phillips to the effect that there was an absence of severe leg pain. Mr Hickey refers to other expert evidence that tends to contradict the view of Mr Phillips and contends that the Tribunal gave no reason for concluding that there was no corroborating evidence.
69 During the hearing, counsel for Mr Hickey submitted that Mr Hickey’s history of left leg pain was more than Mr Phillips was prepared to acknowledge, relying on the May 1997 report of Mr Schaeffer as evidence of Mr Hickey complaining of:
constant pain in his left buttock, radiating to behind his left knee. He said it is like a “throbbing stab” and a times extends down to the heels” (at [147]).
70 He submitted that the Tribunal’s acceptance at [197] of Mr Hickey’s evidence regarding his symptoms is irreconcilable with the finding at [206] that nothing turns on the fact there was no challenge to Mr Hickey’s evidence. This is said to be because Mr Hickey’s evidence is inconsistent with Mr Phillips’ view that he experienced negligible leg pain, and therefore removes the foundation for the conclusion that leg pain was not a real concern. However, at set out at [50] above, Mr Phillips’ evidence was not that Mr Hickey did not experience leg pain but rather that if Mr Hickey had experienced an acute disc protrusion he would have expected leg pain to be the “main complaint”. The report of Mr Schaeffer is not inconsistent with this finding.
71 Furthermore, this criticism is in effect a challenge to the fact finding task of the Tribunal rather than of the adequacy of the reasons given. As I have explained above, the Tribunal provides a fairly detailed summary of the evidence of Mr Phillips’ opinions from which it is clear that the Tribunal understood Mr Phillips’ view to be that relying on radiological evidence alone, without consideration of the reported symptoms (lack of constant leg pain, as found at [199]), the patient’s reflexes (normal) and the state of degenerative change (not supportive) was not sufficient. It is apparent that the Tribunal considered that these matters would provide the necessary corroboration.
72 The second relates to the factual findings of the Tribunal at [202(b), (c)] as to Mr Phillips’ evidence of the effect of the radiological evidence. Mr Hickey submits that Mr Phillips’ evidence was not that the radiological changes were not consistent with the claimed incident and that [202(c)] did not deal with Mr Phillips’ evidence that if Mr Hickey suffered a disc protrusion it was a possible explanation for his symptoms.
73 However, as the Tribunal noted at [115] (set out at [50] above), it found that Mr Phillips’ evidence was that the radiological changes would not relate back to the 1993 injury, having deliberately inserted “[consistent]” in lieu of “inconsistent” in his recitation of the evidence. It was within the fact finding function of the Tribunal to form a view as to the meaning and effect of the oral evidence presented to it. Furthermore, neither of these criticisms rises above criticism of the Tribunal’s fact finding.
74 The third concerns the Tribunal’s reasons at [203(d)]. Mr Hickey submits that the conclusion that the x-ray of 2014 was not consistent with a previous disc protrusion is not explained in the face of competing evidence. However, it is clear enough that whilst Mr Phillips accepted that there was x-ray evidence of a disc protrusion, the point of departure from his perspective was whether that evidence, taken into account with the other evidence to which he referred, was sufficient for a conclusion to be reached that the protrusion was the cause of the pain. The Tribunal made plain in its reasons that it agreed with Mr Phillips that it was not. The reasons are infelicitously expressed insofar as this sentence suggests a finding that it was Mr Phillips’ view that there was never any evidence of a disc protrusion. However, in my view, taken in context that is not what the Tribunal meant.
75 Mr Hickey next contends that the Tribunal erred by ignoring a 2016 MRI scan, which neither Mr Phillips nor Mr Alexeeff had reviewed. He submits that the Tribunal ought to have explained why it did not mention this in its conclusions. However, the Tribunal’s reasons do explain why radiological evidence alone would not be determinative. That was in my view sufficient for the reader to understand that further explanation going to the 2016 MRI report would add nothing to the reasons.
76 The fourth concerns the Tribunal’s observation in the second sentence of [203(d)] that Mr Phillips’, Mr Alexeeff’s and Mr Schaeffer’s opinion was that the injury ought to have resolved within months of the incident and that the symptoms from which Mr Hickey had suffered since around the late 1990’s are as a result of other, unrelated factors. I have addressed this aspect of the decision at [55] to [65] above.
77 The final criticism arises from [205] of the Tribunal’s decision. Mr Hickey contends that the Tribunal failed to explain how it was that Dr Slinger’s opinion as to the ongoing nature of the symptoms experienced by Mr Hickey was rejected, having regard to the detail of his evidence. However, the Tribunal explained that it was not persuaded by Dr Slinger’s opinion in the face of the more persuasive evidence of Mr Phillips. In essence, this criticism is no more than a complaint that in making its factual findings the Tribunal chose not to accept the evidence of Dr Slinger over that provided by Mr Phillips.
78 Accordingly, I am not satisfied that ground 2 of the appeal is made out.
5. GROUND 1 – WRONG STANDARD OF PROOF
79 In ground 1 Mr Hickey contends that the Tribunal erred in law by raising the standard of proof by which he was required to prove the facts at issue namely, that he sustained a disc protrusion and that the effects of that injury have continued. In the particulars appended to this ground Mr Hickey contends that in accepting Mr Phillips’ opinion, the Tribunal adopted a requirement that Mr Hickey prove with “medical certainty” that he suffered the injury, and/or that incapacity and the need for medical treatment resulted from the injury, in circumstances where the only requirement was that he establish on the balance of probabilities that the injury sustained on 27 September 1993 resulted in an incapacity for work and the need for medical treatment.
80 There is no dispute that the question for the Tribunal is whether, on the material before it, the decision is the correct and preferable one: Minister for Immigration & Ethnic Affairs v Pochi [1980] FCA 85; 31 ALR 666 at 683 (Deane J, Evatt J agreeing) or that the relevant standard is on the balance of probabilities.
81 In the case of the application of the SRC Act, the Tribunal must reach the relevant state of satisfaction having regard to the definition of “injury” in s 5A of that Act and the evidence before it. There is, however, no obligation on the part of the Tribunal to accept the evidence of the employee alone. The proper construction of the SRC Act recognises that an employee may genuinely complain of being unwell, but, in the context of the definition of “injury”, unless that employee can satisfy the Tribunal of fact that he or she suffered an “injury”, s 14 of the SRC Act will not be engaged: Military Rehabilitation and Compensation Commission v May [2016] HCA 19; 257 CLR 468 at [61] (French CJ, Kiefel, Nettle and Gordon JJ).
82 That is not to say that the evidence of the employee as to his or her symptoms may not be decisive. In each case it will be a matter for the Tribunal of fact. In May at [80] Gageler J elaborated (footnotes omitted):
80 The Full Court was right to point out in the decision under appeal that the Act and the case law do not “preclude an injury being established on the basis of an account by a claimant of the disturbances to her or his body or mind, without the necessity for a diagnosis of a recognised medical condition, or corroborating pathology or medical opinion” and to observe that “[w]hether or not the evidence of a claimant will be sufficient, if it is not supported, corroborated or confirmed by independent medical opinion or pathology, will be a matter for the Tribunal’s satisfaction on the evidence in each particular case”. But the Full Court was wrong, in my opinion, to infer that the Tribunal proceeded on a different basis.
81 The Tribunal demonstrated that it understood the ultimate question which it needed to answer to determine Mr May’s claim when it stated its conclusion in terms that it was “not satisfied on the balance of probabilities that Mr May suffered a physical injury – an injury simpliciter – amounting to a sudden or identifiable physiological change in the normal functioning of the body or its organs”.
83 Mr Hickey submits that it is apparent that the Tribunal raised the standard to be satisfied because, notwithstanding clinical symptoms consistent with a disc injury that were supported by radiological scans showing the existence of a disc injury, it was still found at [203(b)] to be a presumptuous conclusion. He contends that the Tribunal considered the evidence in a piecemeal fashion, isolating the observation of Mr Phillips to the effect that radiological imaging did not of itself prove that the disc prolapse was the pain generator, without considering the making of findings of fact regarding Mr Hickey’s clinical symptoms, the assumptions made by Mr Phillips or the opinions of Dr Slinger and Dr Williams beyond assuming that their views were based solely on the radiological imaging.
84 Mr Hickey further criticises the process of reasoning undertaken by the Tribunal insofar as it failed to infer a causal connection on the balance of probabilities between the September 1993 incident and the disc prolapse, failed to consider that such inference was open in the light of the expert evidence and failed to make a positive finding as to what injury was suffered by Mr Hickey and whether that injury had resolved.
85 The basis in the Tribunal’s reasons for the criticism advanced in this ground is the fact that in large part the Tribunal preferred the views of Mr Phillips in reaching its conclusions over those of other experts. In his oral evidence, Mr Phillips had said, when questioned about the radiological evidence, that “you need to prove that the disc protrusion is causing the pain”. Mr Hickey submits that this, taken with the Tribunal’s acceptance of Mr Phillips’ evidence in general and the passage at [203(b)] of its reasons to the effect that relying only on the temporal connection between radiological evidence of a disc protrusion and the incident is “presumptuous, incorrect and lacks the necessary corroborative evidence”, reflects the imposition of a standard that exceeds the requirements of the legislation.
86 The Tribunal’s reasoning and analysis of the evidence may be seen in the passages from [199] to [206]. Its findings of fact are to be seen in [209] to [211]. In particular, the Tribunal rejected Mr Hickey’s submission that the correct and preferable decision is that as at 15 January 2015 his need for treatment and his incapacity for work were as a result of a work-related disc injury in favour of the view that: (a) as at 15 January 2015 he no longer suffered from the work-related injury; (b) if he had on 27 September 1993 suffered a disc protrusion (which it did not accept) then that injury should have settled within several months and Mr Hickey’s ongoing symptoms and progressive degenerative changes are not related to that injury; and (c) if his work-related injury was of a different nature, the evidence does not demonstrate to the Tribunal’s satisfaction that Mr Hickey continued to suffer from its effects as at 15 January 2015.
87 Nothing in the language of the Tribunal’s findings of fact supports the view that it imposed a standard of fact finding above the balance of probabilities. In accepting the evidence of Mr Phillips, including his reservations as to the approach of other experts, the Tribunal does not evince an approach whereby it elevated the onus to one approaching scientific or medical certainty. Rather, its reasons indicate that it was providing an analytical basis for preferring the approach of Mr Phillips to that of the medical practitioners called by Mr Hickey.
88 Nothing in its reasons indicates that in reaching the factual findings set out in [210] to [211] the Tribunal did not consider the application of the SRC Act on the basis that it was considering whether the injury suffered by Mr Hickey on 27 September 1993 fell within the definition of “disease” under s 5B of the SRC Act. In this regard, it may be noted that in [51] to [54] of its reasons the Tribunal set out s 14(1) of the SRC Act, the definition of “injury” in s 5A(1) and the definition of “disease” in s 5B(1). It cited at length the discussion of Deputy President Boyle in Cross and Comcare [2018] AATA 52 as to the meaning of an ailment suffered by an employee “that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee” which itself cited various authorities. The concluding paragraph of the quotation is as follows:
I must be satisfied on the balance of probabilities, that contribution by employment was to a significant degree and it ought not be left in the area of possibility or conjecture. Further, whether employment contributed to a significant degree, is a question of fact to be determined by the Tribunal in each case.
89 Accordingly, I do not consider that ground 1 is established.
90 In ground 3 of the appeal Mr Hickey asserts that the Tribunal erred by not applying the correct test to determine whether his incapacity for work or need for medical treatment resulted from the injury. In the particulars appended to this ground Mr Hickey refers to [203(b)] of the decision and contends that the Tribunal only determined that Mr Hickey’s condition ought to have resolved, without finding the nature of the injury and without determining whether Mr Hickey’s incapacity for work and need for treatment resulted from the injury suffered on 27 September 1993.
91 Mr Hickey submits that the correct issue for determination by the Tribunal was whether, pursuant to s 14 of the SRC Act, his incapacity for work and/or need for medical treatment as at 15 January 2015 (and beyond) resulted from the “L5/S1 disc prolapse on the left with a [sequelae] of soft tissue injury right foot” injury. To address this question, it was necessary for the Tribunal to determine whether or not he sustained this injury, and its nature and extent because, quite apart from the medical evidence adduced by Mr Hickey, there was inconsistency as to the nature of the injury in the reports of Mr Phillips and Mr Alexeeff. However, the Tribunal did not decide upon a correct characterisation of the injury suffered by Mr Hickey on 27 September 1993, but rather decided the application on the basis of whatever was the correct characterisation of the injury suffered by him in 1993, it should have resolved within a few months. This was an error of law.
92 As noted, the existence of a work-related “injury” is necessary to enliven ss 16 and 19 of the SRC Act. In the absence of an ongoing injury or its effects, neither the costs of medical treatment nor incapacity for work must be compensated.
93 As set out at [12] above, the Tribunal identified the issues at [8] and [63] of its reasons as being whether, as at 15 January 2015, the APC had either a present liability to pay compensation in respect of the costs of reasonable medical treatment (if any) obtained in relation to an “L5-S1 disc prolapse on the left with a [sequelae] of soft tissue injury right foot” sustained on 27 September 1993 pursuant to s 16 SRC Act, or whether as at 15 January 2015 the APC had a present liability to pay compensation in respect of incapacity for work from the same injury pursuant to s 19.
94 It is not apparent to me that the Tribunal fell into the error for which Mr Hickey contends. The existence of an entitlement to compensation under ss 16 and 19 is conditioned by an entitlement to compensation pursuant to s 14 of the SRC Act. As Derrington J said in Woodhouse v Comcare [2021] FCAFC 95; 285 FCR 14 (Collier and Rangiah JJ agreeing) at [109]:
For the reasons referred to previously, the existence of an entitlement to compensation pursuant to s 14 in respect of a relevant period of time depends on there being an “injury” from which the employee suffers during that period of time. Compensation is only payable for the period during which the injury retains the relevant causal nexus with employment. In other words, that the contribution requirement remains unbroken. In the case of a disease, it must be one that was contributed to in a material (or significant) degree by the employee’s employment. For the reasons explained in Lees (at [27]), the entitlement to compensation arises pursuant to s 14 and is then controlled by the provisions that follow in Pt II of the SRC Act. For that reason, in the absence of a present “injury” and a consequent entitlement pursuant to s 14, there cannot be liability to pay compensation for incapacity for work that occurs “as a result of” an injury pursuant to s 19.
95 The Tribunal addressed its attention to whether or not there was an “injury” that was relevantly current as at 15 January 2015. It was not necessary for that purpose to determine whether there had ever been an injury in the form of the disc prolapse, but whether or not there was, or remained, a causal connection between the alleged injury and the symptoms reported. The Tribunal determined that there was not.
96 For the reasons set out above, the appeal must be dismissed with costs.
I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Burley. |
