Holt v Comcare

9 On 4 September 1985, Comcare accepted liability for Mrs Holt having contracted "stress-related asthma". The deemed date of her injury was 4 April 1985. It is not apparent how or why that date was chosen, but nothing turns on that. In a determination which it had made in respect of Mrs Holt's medical condition, Comcare had initially described its acceptance of liability for contraction of a disease, rather than for aggravation of an underlying disease as had earlier been diagnosed by Dr Faunce. That assessment was subsequently altered so that Mrs Holt's condition, as accepted by Comcare thereafter, read "aggravation of stress-related asthma". From April 1985, Mrs Holt was in receipt of her pension entitlement from the superannuation fund as well as payments from Comcare. 10 Mr and Mrs Holt returned to South Australia in October 1987 and purchased a home at Aldgate in the Adelaide Hills. In the following month. she consulted Professor JH Alpers who was, at that time, the Senior Director of the Respiratory Unit at Flinders Medical Centre. Her compensation payments continued for fifteen years until 4 October 2000. On that date, Comcare made a determination that it was no longer liable to pay compensation to Mrs Holt - a determination which it later affirmed on 3 January 2001. It came to that decision on the ground that it was not satisfied that Mrs Holt's previous employment still contributed to her asthmatic condition. On 18 January 2001, Mrs Holt applied to the Tribunal for a review of Comcare's decision; she was, however, unsuccessful. 11 Mrs Holt's case, as presented to the Tribunal, was to the effect that she had been able to control her asthma until work-related pressures built up to such a degree that she found herself unable to continue working in such a stressful environment. That issue was not challenged by Comcare. The challenge came with respect to her current and future state of health. Mrs Holt argued before the Tribunal that her stress-related aggravation remained; she argued that she remained totally incapacitated for work and that she was therefore entitled to receive ongoing payments of compensation. Comcare, for its part, submitted that her work, which was initially the cause of her stress-related aggravation, did not have a permanent effect and that her symptoms, which had previously arisen as a result of that aggravation, had been resolved. 12 In its review of the evidence, the Tribunal was marginally critical of the evidence that Mrs Holt and her husband gave. The Tribunal suggested that they might have exaggerated the level of work stressors that Mrs Holt had experienced when she was first hospitalised in 1975. That however, in my opinion, is not a matter of importance in view of Comcare's subsequent acceptance of liability for the aggravation to her existing asthmatic condition. The question that dominated the Tribunal's consideration, and properly so, was whether it could be held with safety, that her aggravated condition had ceased to exist in 2000. For that purpose, the Tribunal reviewed the extensive medical evidence that had been adduced by both parties. 13 Professor Alpers issued a report with respect to Mrs Holt's state of health based on his examination of her on 22 July 1998. In that report he recorded that she was in good health: "… particularly now that stress has been removed from her environment, and that air conditioning [sic] office accommodation is not a feature of her daily life."

Nevertheless, Professor Alpers considered that she was:

"… incapacitated for stressful employment, and probably also for employment involving travel, air conditioned offices and uncontrolled dietary situations."

"It is not clear that the previous aggravating stressors of Commonwealth employment have caused permanent incapacity as she is certainly in good spirits and good respiratory health when last seen on 22 July 1988."

Professor Alpers was of the opinion that the stress that Mrs Holt had suffered had been relieved by her return to South Australia. But in his report dated 23 August 2001, the professor said of Mrs Holt:

"Her former employment with the Commonwealth Public Service continues to materially contribute to her asthma condition through the effect of recent stress, associated with her Comcare payments being ceased." 14 Dr Freeman, a psychiatrist, examined Mrs Holt at the request of Comcare. He noted that Mrs Holt had presented with a history of stress-related asthma and that she had developed anxiety and tension symptoms. The only section of Dr Freeman's report that the Tribunal quoted was that in which he noted that the major stress factor in her life was the perceived victimisation of her case by Comcare. 15 Dr Stevenson, a consultant physician, was called by Comcare. He was of the view that Mrs Holt's current condition was not caused or materially contributed to by her former employment. 16 Professor Goldney, a psychiatrist, who also gave evidence at the request of Comcare, said that he did not consider that Mrs Holt had sufficient symptoms of emotional distress to warrant a psychiatric diagnosis. He alluded to Mrs Holt having problems apart from the workforce. In his report dated 15 June 2001, he addressed when, in his opinion, Mrs Holt's compensable condition had ceased. Professor Goldney said: "If there had been significant anxiety associated with her work, then it is probable that that would have resolved within months of Mrs Holt leaving work. That is in contrast to other issues of an interpersonal nature." (emphasis added)

The Tribunal accepted Professor Goldney's opinion; it said:

"He considered that if [Mrs Holt] had significant anxiety associated with her work, then it is probable that this would have resolved within months of her leaving work in contrast to other issues of an interpersonal mature." 17 The Tribunal accepted the evidence of Professor Goldney and Dr Stevenson to the effect that any work-related stress was transient or episodic, and would have ceased after a period of fifteen years. In coming to that conclusion, the Tribunal noted the following matters:

• Mrs Holt has suffered asthma since childhood;
• Mrs Holt's asthma is aggravated by change in temperature, exposure to air conditioning, perfumes and other factors, including stress;
• In the intervening fifteen years from Comcare's acceptance of liability to Comcare's decision to cease making compensatory payments, Mrs Holt had suffered no major asthmatic attack;
• Mrs Holt did not see her treating specialist for thirteen years;
• Mrs Holt's treating general practitioner, Dr Taylor, has monitored her condition and prescribed ongoing and regular medication to control her symptoms. Dr Taylor said that drugs are now used preventatively rather than curatively. 18 The key issue in these proceedings was, in my opinion, correctly identified by the review officer whose decision of 3 January 2001 was the subject of the application for review by the Tribunal. The author of the decision noted that the key issue was not whether Mrs Holt's asthma condition, which pre-existed her employment with the Commonwealth, prevented her from returning to work. The issue was whether the circumstances which existed in 1985 and before continued to contribute to the asthmatic condition and an incapacity for suitable employment. 19 The medical evidence that was placed before the Tribunal was in conflict in certain areas but the Tribunal was persuaded to follow the views of Dr Stevenson, who distinguished between the aggravating circumstances of Mrs Holt's former employment and other non-related factors which would or could contribute to her asthmatic condition. Dr Stevenson, who examined Mrs Holt on several occasions, concluded that she was: "… not disabled or impeded by any condition related to her previous government employment."

In his report of 17 April 2001, Dr Stevenson described Mrs Holt as:

"… a chronically anxious woman with minimal evidence of active asthma who requires fairly moderate level of treatment."

On physical examination, he described her in these terms:

"Mrs Holt was a pleasant, polite, well presented lady in her late forties. In personality, she seemed probably chronically anxious and my impression was that there was quite a deal of anxiety that was somewhat disproportionate to the natural reactive anxiety of medical review. On physical examination there were really [sic] little to find. Routine medical examination showed no evidence at all of asthma. On forcible hyperventilation which tends to bring out mild latent wheeze in mild asthmatics she had a minor respiratory wheeze. Otherwise physical examination was unremarkable."

Dr Stevenson was not prepared to accept that stress did play or had played a significant role in Mrs Holt's condition. So much is apparent from an extract from his report of 18 October 2001, where he said:

"If the proposition had been that after severe psychological stress from her occupation in the absence of extraneous life stresses Ms Holt had suffered temporary exacerbation of asthma, I would have had no major difficulty with accepting temporary work-relationship. I came to such a conclusion in another patient even today, a mild asthmatic who suffered harassment from a superior and needed 6 months of intermittent corticosteroids for deteriorating asthma. The superior was disciplined and removed; the lady recovered in a month and resumed productive employment. I had no problem accepting some modest relationship. But what one is being asked here is something very different, for which much stronger evidence is demanded. It is that the stresses of this lady's work were uniquely so profound that they altered the course of her asthma till she is no longer employable: and of this remarkable proposition there is no evidence. In fact, Professor Alpers as a scientific respiratory physician does not at all support that proposition and is very lucid on the point. The suggestion is intellectually indefensible. Professor Alpers and I appear now in full agreement that psychological stress relating to her previous employment has no effect on her current asthma and could not have done so for many years." 20 In his earlier report of 17 April 2001, Dr Stevenson considered and answered certain questions that had been posed by the solicitors for Comcare. In the course of answering those questions, he said: "I cannot identify on balance of probability any continuing compensable factor in this lady's asthma."

"There would appear to be no respiratory impediment to her employment as a clerk. She would appear to have a chronically anxious personality and has spent many years in a retired lifestyle." (emphasis added)

The final matter in his report to which reference need be made was that:

"The requirement for treatment would appear to be relatively minor and would consist basically of the continuation of bronchodilator and inhaled corticosteroids which she is currently having and which is providing excellent control. However, this would appear to be required for the pre-existing and continuing cause of bronchial asthma rather than for any occupationally induced aggravation." 21 When there is a conflict between medical experts as to the nature and effect of an injury, the resolution of such a conflict by a Tribunal would, in the event of an appeal, be an appeal upon a question of fact. In Australian Telecommunications Corporation v Davis (1991) 30 FCR 467, the respondents sought compensation under the Compensation (Commonwealth Government Employees) Act 1971 (Cth). A decision was made that the respondent was entitled to compensation until December 1986 but on review, the Administrative Appeals Tribunal ("the Tribunal") decided that the respondent should receive compensation until May 1998. On an appeal brought by Australian Telecommunications Corporation to the Federal Court, Heerey J recognised the case as one that involved a conflict between medical experts. His Honour said of such a situation that it was: "… par excellence a question of fact. Whether the AAT reached the same decision on the facts before it as this Court might have done does not raise a question of law, it being conceded that this is not a case where there was no evidence to found the decision complained of, or whether the decision was against the evidence and the weight of the evidence." 22 The same approach was taken in this Court in Gilbert v Repatriation Commission (1989) 86 ALR 713. That case was marginally different in that the question that had to be considered was whether or not a particular hypothesis was, on the evidence, reasonable or unreasonable. As to that issue it was held that such an inquiry was not a question of law: see also Apthorpe v Repatriation Commission (1987) 77 ALR 42 and Puhlhofer v Hillingdon London Borough Council [1986] 1 AC 484 at 518. Mr Di Fazio, counsel for the appellant conceded, without hesitation, that there was material before the Tribunal, in the form of the reports and evidence of Dr Stevenson and, to a lessor extent, Professor Goldney, from which the Tribunal could base its decision. 23 In her grounds of appeal, Mrs Holt argued that the Tribunal erred in law in that it addressed the wrong issue of law. In par 24 of its reasons, the Tribunal had said: "The questions remains as to whether the effects of the work related injury persist beyond 4 October 2000."

It was submitted that the statement just quoted showed that the Tribunal fell into error. The correct issues, so it was claimed, were:

"2.1 whether as of October 2000 the appellant still suffered from any injury being aggravation of underlying asthma; and 2.2 whether as of October 2000 that injury was causing incapacity for work." 24 Although the language differs, I am of the opinion that the question posed by the Tribunal in par 24 of its reasons addresses the same issues as that contained in the first sentence of the appellant's formulated questions. The "work related injury" could only have been the "aggravation of underlying asthma" and both questions address Mrs Holt's state of health as at October 2000. Having found against her in the course of answering the question, the Tribunal, quite understandably, did not have to address the second question which dwelt on incapacity for work. 25 Counsel for the appellant, next argued that the Tribunal had erred in law in failing to have regard to Mrs Holt's pre-Canberra medical condition. If proper consideration had been given to her medical condition at that time, and if it had been compared with her post-Canberra medical condition, it would have been apparent that there had been a deleterious change in circumstances which, so it was claimed, would be referable to the aggravated asthmatic condition. The argument continued that if such a comparison had been made, it would have become obvious that Mrs Holt remains incapacitated and, accordingly, entitled to a continuation of her compensatory payments. In support of his argument, counsel for Mrs Holt relied upon an aspect of the report of Professor Alpers dated 24 January 1989, in which he had written that she was incapacitated for stressful employment and probably also for employment involving travel, air conditioned offices and uncontrolled dietary situations (see [13] hereof). 26 Counsel also relied upon a later report of Dr Alpers dated 23 August 2001, in which he said of Mrs Holt that she: "… does have an ongoing asthma condition. This has been present with her since the age of two and, while symptoms have been stable of late, the potential for ongoing acute and chronic asthma symptoms is ever present." 27 Counsel for Mrs Holt then submitted that the Tribunal fell into error because of its failure to take into account relevant considerations. Ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power amounts to an error of law: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82] per McHugh, Gummow and Hayne JJ. 28 First it was alleged that the Tribunal failed to have regard to the fact that Mrs Holt had suffered cardiorespiratory or respiratory failure in 1975 and that her condition had been contributed to by work conditions including climate changes. In my opinion, the Tribunal had sufficient regard to that matter in pars 6 and 10 of its reasons. In par 6, the Tribunal recited Mrs Holt's arrival in Canberra with her husband and the early diagnosis of bronchitis, followed by a worsening of her asthmatic symptoms which led to her collapse in March 1975 and her admission into hospital suffering from an acute asthma attack with pulmonary arrest. In par 10 of its reasons, the Tribunal recited the report of Mrs Holt's treating medical practitioner, Dr Faunce, dated 27 April 1985. 29 It was next submitted that Mrs Holt's history of severe asthma between 1975 and 1985 was contributed to by work conditions, including climate changes and that the Tribunal had failed to have regard to those facts. In par 7 of its reasons, the Tribunal said: "This work she says was onerous and responsible, and required the applicant to travel interstate on a regular basis, whereupon she was subjected to climate changes. She says that her office was air-conditioned, and the air was recycled due to climatic conditions, with very little admission of outside air because the outside air was colder in Canberra."

That statement, so it seems to me, adequately answers this complaint.

30 Next it was said that the tribunal failed to take into account a material consideration in that it failed to take into account that Mrs Holt's asthmatic condition became chronic by reason of her work conditions, including climate changes. I think that the contents of par 7 of the Tribunal's reasons, to which I have just referred, sufficiently answers that complaint. 31 Finally it was said that the Tribunal failed to take into account that exposure to work conditions, including climatic changes, would cause recurrence of asthma attacks. In par 11 of its reasons, the Tribunal addressed that subject, saying that on 6 June 1985, Mrs Holt lodged a claim for compensation for "aggravation of severe asthma" as a result of "constant change of climate due to continuous (weekly) travel and severe stress due to the workload and responsibility of her duties". That, in my opinion, answers the last of these complaints. 32 The next ground of appeal was that the Tribunal erred in law in having regard to irrelevant facts and considerations. In par 33 of its reasons, the Tribunal said: "The applicant continued to be compensated for this aggravation for 15 years, until 4 October 2000. In that 15 years she suffered no major asthma attacks; she has not seen her treating specialist, Professor Alpers, for 13 years."

It was said that those factors were irrelevant factors and should not have been taken into account. I disagree. In considering whether Comcare should continue to accept liability for aggravation of stress-related asthma which had occurred some fifteen years earlier in 1985, it was, in my opinion, highly material that in those fifteen years Mrs Holt had suffered no major asthmatic attack and had no need to see her treating specialist, Professor Alpers, for thirteen years. There is no substance in this ground of appeal. In my opinion, Mrs Holt has failed in her attempt to have the decision of the Tribunal set aside. Her application must be dismissed with costs.

33 On 24 December 2001, the Senior Member, who constituted the Tribunal, delivered oral reasons for the Tribunal's decision to affirm the decision that was under review. The Deputy Registrar of the Tribunal posted to Mrs Holt's solicitors and Comcare's solicitors under cover of letters dated 24 December 2001, a document which was described as: "… a copy of the decision of the Tribunal in the above matter."

The document, that was said to be the decision, said only:

"For the reasons given orally in this matter, the Tribunal affirms the decision under review."

Subsequently, on 25 January 2002, the Deputy Registrar of the Tribunal posted to both solicitors a transcript of the Tribunal's reasons that had been delivered orally on 24 December 2001.

34 A notice of appeal against the decision of the Tribunal was filed in the South Australian Registry of the Court on 22 February 2002 and served on Comcare's solicitors four days later on 26 February. Subsection 44(2A) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") provides that such an appeal is to be instituted: "(a) not later than the twenty-eighth day after the day on which a document setting out the terms of the decision of the Tribunal is furnished to the person or within such further time at the Federal Court of Australia (whether before or after the expiration of that day) allows; and (b) …"

The notice of appeal was filed within twenty-eight days of the date upon which the Deputy Registrar of the Tribunal furnished a copy of the transcript of the Tribunal's reasons but it was well outside the period of twenty-eight days from the date upon which the Deputy Registrar furnished a copy of the one-line statement that announced that the Tribunal had decided to affirm Comcare's decision.

35 On 26 March 2002, Mrs Holt filed an application seeking an extension of time within which to file and serve her notice of appeal. That application was supported by an affidavit from Mr Michael Randle which was sworn and filed on the same day. Mr Randle, the solicitor for Mrs Holt, stated in his affidavit that he did not receive a notification that the Tribunal would be orally announcing its decision on 24 December 2001. He said that he returned to his office, after the Christmas break, on 7 January 2002 and saw, for the first time, the letter of 24 December 2001 from the Deputy Registrar of the Tribunal. He rang the Tribunal seeking a written copy of the Tribunal's reasons for its decision but was told that he would have to apply in writing. He also said that the person to whom he spoke informed him that the time within which to institute an appeal would not commence to run until he received a copy of the reasons. Mr Randall said that he received a copy of the Tribunal's reasons on 6 February 2002. 36 On 21 March 2002, Comcare filed a notice of motion in which it sought an order that the appeal be dismissed as incompetent. That application was supported by the affidavit of Julie McIntyre, the solicitor for Comcare, which was dated and filed on the same day. In that affidavit she impliedly asserted that the date of the Tribunal's decision was 24 December 2001. 37 In my opinion, the question whether time runs from the date of the receipt of the written advice of the decision (ie or on about 12 January 2002) or from the date of the receipt of the written reasons (ie on or about 6 February 2002), is answered by having regard to the provisions of subs 44(2B) of the AAT Act. That subsection states: "(2B) In the interest of justice, the grounds on which the Federal Court of Australia may allow further time under paragraph (2A)(a) include, but are not limited to, the following grounds: (a) if the Tribunal made an oral statement as to the reasons for the decision and afterwards gave a written statement of reasons for the decision - the written statement contains reasons that were not mentioned in the oral statement; (b) the text of the decision or a statement of reasons for the decision has been altered under section 43AA." 38 In my opinion, the contents of par (a) of the subsection make it clear that the legislature contemplated that an oral statement as to the reason for the decision constituted the commencement of the mechanism for the calculation of the time within which an appeal was to be instituted. The legislature could have said that the time for lodgement of an appeal commenced with the delivery of a written statement that contained the reasons of the Tribunal. It chose not to do so. It merely said that the written reasons - if they varied from the oral reasons - could be grounds for the Court to allow further time. 39 In addition to the complaint that the appeal was filed out of time, Comcare also submitted that the appeal should be summarily dismissed because the grounds of appeal did not identify a question of law that was the subject of the appeal. 40 At the end of the day, Comcare did not challenge the contents of Mr Randall's affidavit and did not advance any argument in support of the proposition that an extension of time should not be granted. In the absence of argument and accepting the good faith of Mr Randall's explanation, I saw no reason why an extension of time should not be granted and I made the necessary order. Comcare is entitled to its costs in respect of Mrs Holt's unsuccessful appeal but those costs should not include any costs associated with the two notices of motion; each party should pay their own costs in respect thereof. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin.

Associate: Dated: 28 November 2002 Counsel for the Applicant: Mr F Di Fazio