Australian Postal Corporation v Kember

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.