Lang v Comcare

The AAT decision 11 The Tribunal provided a short summary of Mr Lang's medical history. It found that Mr Lang suffered from conditions which caused pain in the thoracic region of his spine prior to his alleged fall in 1981. The clinical notes of Mr Lang's general practitioners in the relevant period, Dr Reeve and Dr Herath, supported this finding. 12 The Tribunal also referred to a report of Dr Andrews, Consultant Neurologist, in August 1982 which indicated that any aggravation of Mr Lang's condition due to his work for the Commonwealth would have only lasted a short period of time (a few months) and to a report of Dr Kitchin that Mr Lang's complaint, in March 1983, was of thoracic degenerative disease. 13 The Tribunal noted that Dr Chandran, a neurosurgeon to whom Mr Lang was referred in 2000, referred to neck pain in his report but did not mention pain in the thoracic area. In contrast, Dr Speldewinde, who examined Mr Lang in March 2002, referred to Mr Lang's distress as a result of an aggravation of pain in his thoracic spine. Mr Lang's claim to Comcare for treatment of this aggravation was supported by Dr Herath and ultimately paid by Comcare. 14 The report of Dr Griffith, on which Comcare had relied (see [9] above), was central to the Tribunal's decision. In particular, the Tribunal referred to Dr Griffith's opinion that Mr Lang's claim for: 'aggravation of pre-existing condition of pain in the mid-thoracic region is purely descriptive and is not a pathological diagnosis, and thus should never have been acceptable as a basis for a long term workers compensation claim.' 15 Dr Griffith explained that, in the absence of structural injury, the aggravation caused to Mr Lang's condition by his fall in 1981 would have ceased within three months, as would any aggravation caused by Mr Lang's ordinary work duties. He concluded "[n]o employment related aggravation (in the absence of demonstrable structural injury) should be considered as [not] having resolved." 16 The Tribunal framed the issues it needed to determine as follows: '1) are we persuaded that as at 29 November 2004 Mr Lang did not require medical treatment for the compensable injury (ie. the aggravation suffered in 1981)? 2) are we persuaded that at 29 November 2004 Mr Lang was not incapacitated as a result of the compensable injury?' 17 The Tribunal accepted Dr Griffith's evidence that in the absence of structural injury it is reasonable to expect that the aggravation of pain in Mr Lang's thoracic region would have resolved a long time before 2004. The Tribunal also relied upon the reports of Dr Andrews and Dr Kitchen described above, which indicated that any aggravation caused by lifting boxes would have been temporary and that Mr Lang had a pre-existing thoracic spine condition. The Tribunal concluded: 'Taking into account all of the evidence referred to we are satisfied on the balance of probabilities that as at 29 November 2004 Mr Lang did not require medical treatment for, nor was he incapacitated as a result of, the compensable injury he suffered in 1981.'

The applicant's contentions 18 Mr Lang claimed that the Tribunal had erred in the following ways:

1. the Tribunal failed to apply the expanded definition of 'injury' provided in s 4(3) of the SRC Act;
2. the Tribunal erred in applying a 'balance of probabilities' test; it should have found that Comcare bore the evidentiary onus of proving that one of Mr Lang's entitling circumstances had changed and should have made a finding as to which entitling circumstance or circumstances had changed;
3. the Tribunal failed to take into account a report prepared by Dr Talbot;
4. the Tribunal failed to include certain required findings of fact in its reasons, namely whether the operations performed on Mr Lang's spine caused or contributed to his symptoms as at November 2004, whether Comcare satisfied its evidentiary onus and whether it accepted, rejected or indeed considered the report of Dr Talbot and the reasons for doing so.

The statutory definition of injury 19 The primary definition of "injury" in s 4 of the SRC Act is expanded in s 4(3) which provides: 'For the purposes of this Act, any physical or mental injury or ailment suffered by an employee as a result of medical treatment of an injury shall be taken to be an injury if, but only if: (a) compensation is payable under this Act in respect of the injury for which the medical treatment was obtained; and (b) it was reasonable for the employee to have obtained that medical treatment in the circumstances.' 20 Mr Lang claimed that the Tribunal failed to apply this wide statutory definition which would have encompassed injuries caused by the surgical operations performed on Mr Lang in the 1990s. In his submission the Tribunal ought to have investigated whether this surgery was necessitated by the injury for which he had been granted compensation and whether the symptoms he experienced in 2004 were caused by that surgery. It would appear, however that this issue was not raised before the Tribunal. Counsel for Mr Lang submitted that as he appeared before the Tribunal without legal assistance, and in view of the inquisitorial nature of Tribunal proceedings, the Tribunal was obliged to inquire into matters which arose on the evidence before it even if they were not directly raised. 21 Certainly, the Tribunal did not refer to this expanded definition of 'injury' in its reasons and there is nothing in the Tribunal's reasons to suggest that it considered Mr Lang's operations were relevant to its assessment of Comcare's liability. On the contrary the Tribunal's analysis of the evidence is consistent with a contrary conclusion. The Tribunal referred to these operations only in the course of a broad summary of the medical evidence before it, although it noted that some of the operations were apparently paid for by Comcare presumably as compensation for the compensable injury. Dr Griffith's report, which was relied upon by the Tribunal in other respects, noted that Mr Lang's "condition in the cervical spine is a product of post-surgical degenerative changes". 22 For the expanded definition of 'injury' contained in s 4(3) of the Act to apply, there must be three elements: the first is an initial, compensable, injury; the second is treatment for that injury; the third is further injury caused by that treatment. In Mr Lang's case there was no evidence to suggest that the surgery performed on Mr Lang was treatment for his compensable injury. In 1984 Comcare had determined that Mr Lang's injury was an aggravation of a pre-existing condition in the thoracic region of his spine. The relevant surgery was performed on Mr Lang's cervical and lumbar spine yet there had been no determination in respect of any injury to these areas of Mr Lang's spine. 23 The Tribunal accepted the evidence of Dr Griffiths, who concluded that there was no compensable injury lasting longer than perhaps a few months from the date of the claim in 1981. Therefore, the Tribunal implicitly accepted that as at the date of Mr Lang's surgery in the 1990s, the surgery could not have been treatment for his compensable injury. Dr Griffith also stated: 'Cervical and lumbar discomfort is related to cervical spondylosis but not to the effects of the index fall. The surgery has been successful, and the fusions remain sound insofar as the three level fusion of the cervical spine, and single level fusion of the lumbosacral level are concerned.' 24 There was no evidence to suggest that the cervical and lumbar spine problems that the surgery addressed had any relationship to the compensable injury which related to the thoracic spine. The mere fact that Comcare paid for Mr Lang's surgery cannot be treated as an admission that the surgery was designed to treat the compensable injury. It is equally consistent with a mistake on Comcare's part. I cannot accept Mr Lang's submission that the Tribunal erred in law by failing to consider whether his current symptoms were caused by the surgery. This ground of appeal must be rejected.

The cancellation of benefits 25 Counsel for Mr Lang submitted that although the Tribunal identified the correct test for determining whether existing benefits may be cancelled, it failed to apply this test. The Tribunal referred to the decision in Commonwealth of Australia v Borg [1991] FCA 710; (1994) 20 AAR 299 at 370, where Jenkinson J said that a decision to cancel compensation should not be made unless the decision maker "was persuaded that one of the entitling circumstances had on or before" the date of the decision "ceased to exist". According to Mr Lang, however, the Tribunal failed to do this. 26 Counsel for Mr Lang referred to Comcare v Nichols (1999) FCA 209 in which Heerey J applied Phillips v The Commonwealth of Australia (1964) 110 CLR 347 in the context of the SRC Act. In the latter case the High Court held, at 350: '… the application of the same principles may well mean that in some cases the onus of proving critical facts may rest upon the Commonwealth. Such a case would be where the Commissioner has purported to terminate an employee's right to compensation under an antecedently existing determination by reason of a material change of circumstances.' 27 Counsel for Mr Lang submitted that the Tribunal was 'silent' as to who bore the evidentiary onus in relation to the changed circumstances and that the Tribunal in fact applied a balance of probability standard stating that it was satisfied 'on the balance of probabilities' that Mr Lang did not require medical treatment for his injury and that he was not incapacitated as a result of the injury. 28 Despite this, however, it does not appear that in substance the Tribunal adopted a lesser standard than that mentioned in Borg. The Tribunal expressly accepted Dr Griffith's evidence that "in the absence of structural injury (of which there is no evidence) it is reasonable to expect that the aggravation would have resolved long before 29 November 2004." This finding, in conjunction with the reports of Dr Andrews and Dr Kitchin clearly formed the basis for the Tribunal's decision, rather than any paucity of evidence adduced by Mr Lang. Whilst the Tribunal ostensibly applied a 'balance of probabilities' standard, in light of the principle in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, its finding in substance was that Comcare had discharged its evidentiary onus. 29 Similarly, it is readily apparent from the Tribunal's conclusion and the manner in which it framed the issues for determination on the appeal (see [16] above) that the Tribunal considered Mr Lang's circumstances to have changed. The Tribunal accepted Dr Griffith's evidence that the compensable injury, namely 'aggravation of pre-existing condition of pain in the mid-thoracic region', was resolved by November 2004 and accordingly Mr Lang was no longer incapacitated by it and did not require treatment. Accordingly, this ground of appeal must also be rejected.

Failure to consider Dr Talbot's report 30 Mr Lang's third ground of appeal was that the Tribunal failed to consider the expert medical report of Dr Talbot which Comcare had commissioned after Mr Lang sought a reconsideration of the decision to terminate his compensation payments. During the course of the hearing it became clear that this point was the focus of Mr Lang's submissions, notwithstanding that it was not directly pleaded in his original notice of appeal. I granted Mr Lang leave to file an amended notice of appeal incorporating this ground of appeal (and remedying certain other defects). Both parties were permitted to adduce further evidence and to provide additional written and oral submissions on this issue. 31 Dr Talbot assessed Mr Lang on 17 May 2005. In recounting Mr Lang's medical history, Dr Talbot referred to two incidents mentioned by Mr Lang. First, in 1973 or 1974 Mr Lang was carrying reams of paper up some stairs when he slipped and twisted his back. Second, in July 1981 Mr Lang fell from a table on which he was standing onto a chair beside the table. It seems clear that the second incident is the fall referred to in the Tribunal's reasons and described above at [3]. Dr Talbot stated that he was asked "whether Mr Lang presently suffers from the aggravation of his mid-thoracic region sustained in 1981". After noting that an MRI scan centred on Mr Lang's mid-thoracic region would be a "key investigation" in this case, he said: 'I consider that he first injured his mid-thoracic region in 1973 or 1974, in the event described when he slipped on stairs while carrying three reams of paper. I consider that the aggravating injury occurred in July 1981 in the event described when he was climbing on chairs and a desk and he fell.' 32 In answer to the question "[h]as the aggravation now resolved?" Dr Talbot answered "[t]he aggravation has not resolved." Clearly Dr Talbot's evidence is at odds with Dr Griffiths' evidence, which was that in the absence of structural injury, any aggravation to Mr Lang's thoracic pain caused by a fall in 1981 would have resolved "within three months" of the fall. As mentioned at [9] and [14] - [17] above, the Tribunal accepted Dr Griffith's evidence. 33 Prima facie, Dr Talbot's report goes to the heart of the issue before the Tribunal, namely, whether Mr Lang was, as at the time of Comcare's decision in 2004, still entitled to compensation for the injury accepted by Comcare in 1984. It seems clear however, and the Comcare accepts this, that the Tribunal did not consider Dr Talbot's report in making its decision. 34 Comcare accepts that Dr Talbot's report was before the Tribunal but says that the report was based on injuries allegedly sustained in the early 1970s and 1981, that the Tribunal did not have jurisdiction to consider injuries arising out of these falls and that therefore the report was irrelevant to the Tribunal's decision. It submits that the Tribunal's jurisdiction is limited to a reconsideration of Comcare's determination and therefore, by ss 60 and 62 of the SRC Act the Tribunal was only entitled to consider Mr Lang's entitlement to compensation for the injury notified and for which liability had been accepted. Neither Mr Lang's notice of injury nor his claim for compensation mentioned a fall in 1981 and indeed did not mention any specific incidents as a cause of his injury. Comcare categorised Mr Lang's claim as a 'nature and conditions' claim, that is, the injury notified occurred as a result of the general nature and conditions of Mr Lang's employment. 35 Comcare referred to the notification requirements of the 1971 Act which included notification of the place, date and time at which the injury occurred and the circumstances in which it occurred. It submitted that these requirements were not met in respect of any injury caused by a fall in 1981 and that no such claim was separately made. Accordingly, Comcare submitted that, as a matter of law, the Tribunal could not have considered the injuries caused by the falls and therefore Dr Talbot's report, which was based solely on these falls, was irrelevant. 36 Comcare's explanation for the Tribunal's failure to refer to Dr Talbot's report (even if only in the context of formally excluding it from consideration) was that the Tribunal had expressly excluded Mr Lang's falls in 1973/4 and in 1981 from its consideration at a directions hearing conducted prior to the Tribunal hearing. As noted above, I adjourned the hearing of this matter for a period of time to allow the parties to obtain further evidence as to what occurred at this directions hearing and to prepare submissions in relation to this further material. 37 The material submitted by the parties pursuant to this leave was equivocal. The Tribunal's record of proceedings stated: "T can review decision made in 11/04 that 1971 benefits won't be altered. T will only review 'cease effects' - whether the accepted condition no longer makes A incapacitated for work'. This record does not resolve the central issue, namely whether the 'accepted condition' referred to included any aggravation that may have been caused by the 1981 fall. It appears from the transcript of the Tribunal hearing that at a number of points counsel for Comcare or the Tribunal member referred to the two falls and to Comcare's contention that the Tribunal was not able to take them into account. Counsel for Mr Lang noted that the Tribunal's record of the directions hearing did not specifically mention the Tribunal's jurisdiction or Dr Talbot's report. 38 It is difficult to reconcile Comcare's account of the outcome of the directions hearing with the written reasons of the Tribunal in Mr Lang's case. These reasons refer at some length (relatively speaking) to Mr Lang's claimed fall. The Tribunal's account of Mr Lang's medical history, including his account of his fall, is prefaced with the words 'Unless otherwise stated the following findings of fact are based on the evidence of Mr Lang. We are satisfied of the facts found on the balance of probabilities.' If Comcare is correct in submitting that the fall was excluded from the Tribunal's consideration at a directions hearing, then there would be no reason for the Tribunal to outline the circumstances of Mr Lang's fall in this manner. The only reference in the Tribunal's decision to what Comcare claims is the relevant injury is in a short extract from Mr Lang's notice of injury. Further, the Tribunal noted that "Mr Lang has given evidence as to an incident in 1977 involving his falling on stairs at work. This evidence is not relevant to the issues we have to decide." This comment appears to relate to Mr Lang's claimed fall in 1973/4 however, one would expect that if the Tribunal had expressly excluded both falls from its consideration at the directions hearing, then it would note that the evidence in respect of both was irrelevant, rather than specifying the earlier fall alone. 39 Comcare provided affidavit evidence from Michael La Vista, the solicitor acting for Comcare at the relevant time. Mr La Vista annexed a file note he had made at the directions hearing prior to the Tribunal hearing. The note records that the issue of jurisdiction with respect to the 1974 and 1981 falls was discussed at the directions hearing and that Mr Lang referred to these falls as a 'discrete' injury. The file note further records that the Senior Member indicated that the "reviewable decision" is the only decision that the Tribunal could review and that Comcare submitted that because there was no notice of the falls, the Tribunal did not have jurisdiction to consider them. On this issue, the somewhat incoherent file note records what appears to be the Tribunal's conclusion: 'SM [Senior Member] takes the view that AATwill only review decision that as of 29 Nov 04 up to time that AATdecides that whether or not the decision is correct that your accepted condition no longer incapacitates you for work and no longer need medication.' 40 In supporting Comcare's contentions this file note does not go very much further than the Tribunal's record of the directions hearing. Clearly, the issue of jurisdiction was discussed. However, it appears from this file note that the Tribunal was emphasising that only the injury for which liability had been accepted could be reviewed. Mr Lang does not dispute this however such a conclusion does not meet his contention that these falls may have been part of the cause of the injury for which liability was accepted.

The Tribunal's jurisdiction 41 The Tribunal's jurisdiction is limited to consideration of 'reviewable decisions', which are defined in s 60 of the SRC Act as including a reconsideration of a determination by a determining authority, in this case, Comcare. Comcare's reconsideration in turn was limited to the terms of its original determination. Section 60 of the Act provides that a determination means a determination, decision or requirement made under various listed sections, relevantly including ss 16 and s 134. Although Comcare's determination was made under these sections, as explained above at [10] it was necessary for the Tribunal to consider Mr Lang's rights under the 1971 Act. Section 53 of 1971 Act provided: '(1) This Act does not apply in relation to an injury caused to an employee unless notice in writing of the injury was served, as prescribed, on the Commonwealth - (a) as soon as practicable after the occurrence of the injury; (b) if the employee was not, immediately after the injury, aware that he had sustained an injury - as soon as practicable after he became so aware… 42 Reg 15 of the Compensation (Government Employees) Regulations 1971 (Cth) provided that a notice given pursuant to s 53 needs to specify the place, date and time on which the injury occurred and the circumstances in which the injury occurred. 43 Section 54 of the 1971 Act provides that no compensation is payable under the Act unless a claim in writing for the compensation was served, as prescribed, on the Commissioner within the relevant time. This provision is a procedural pre-requisite to an entitlement to compensation under the Act: see Ward v Military Rehabilitation and Compensation Commission [2007] FCA 7 at [25] in relation to a similar provision under the 1930 Act. 44 Comcare submitted that the 1981 fall had not been notified or claimed by Mr Lang and accordingly that liability for that injury had not been accepted by Comcare in 1984. Accordingly, the fall could not have been the subject of Comcare's determination in 2004 and therefore could not be relevant to the Tribunal's review. I accept that the Tribunal's enquiry was limited to a consideration of whether Mr Lang was, as at the date of the Tribunal's decision, entitled to compensation for the injury as claimed however it does not follow from this that any damage to Mr Lang's back that may have been caused by the 1981 fall was necessarily outside of this enquiry. 45 In support of its submission that 'the injury must be the injury as identified by the notice and claim', Comcare relied on Telstra Corporation Ltd v Hannaford [2006] FCAFC 87 and Frosch v Comcare [2004] FCA 1642. In Frosch at [8], Whitlam J commented, with respect to similar requirements in s 53 of the SRC Act: 'the essential information to be imparted under s 53 will be the nature of an injury or ailment and its connection with the employment.' I do not take issue with these comments but in my view they do not support Comcare's case. 46 Mr Lang's notice of injury and compensation claim adequately disclose the nature of his claimed injury though they may be sparse on the circumstances giving rise to that injury. It is not necessary for me to speculate as to the reason for this as it is not directly relevant to the issue that I must decide. In Canute v Comcare (2006) 229 ALR 445 the High Court considered the concept of 'injury' under the SRC Act and said, at [10]: 'First, the Act does not oblige Comcare to pay compensation in respect of an employee's impairment; it is liable to pay compensation in respect of "the injury". Secondly, the term "injury" is not used in the Act in the sense of "workplace accident". The definition of injury is expressed in terms of the resultant effect of an incident or ailment upon the employee's body. Thirdly, the term "injury" is not used in a global sense to describe the general condition of the employee following an incident.' (emphasis added) 47 Mr Lang notified Comcare as to his injury and broadly outlined his view as to how this injury occurred; see [4]-[5] above. Although his description was somewhat incoherent in my view, it is sufficient to meet the test outlined in Frosch. Mr Lang's notice indicated the nature of his injury and its connection to his employment, and is consistent with the concept of injury to which the High Court referred. 48 Comcare's determination in 1984 that accepted liability for Mr Lang's injury made no mention of the circumstances in which the injury was incurred, save to say that it was in the course of Mr Lang's employment. Comcare described the injury as 'aggravation of a pre-existing condition of pain in mid thoracic region'. This is the same condition/symptom discussed in Dr Talbot's report. Comcare's liability was not restricted to a 'nature and conditions' claim made by Mr Lang. 49 Counsel for Comcare argued that the mere fact that Mr Lang's fall in 1981 coincided with the date of his claim does not mean that Mr Lang's compensable injury included injuries sustained in the fall. This, of course, is correct, however Mr Lang claims (with some support from the expert medical evidence) that this fall contributed to the injury that was notified and accepted as a compensable injury and that this injury is a continuing cause of incapacity. 50 Both Dr Griffith and Dr Talbot referred at some length to Mr Lang's account of his fall. Furthermore, Dr Talbot's report specifically noted that this fall was the cause of the aggravation to Mr Lang's thoracic disc injury. The Tribunal's decision relied upon the report of Dr Griffiths, who noted that "the exacerbation in 1981 may well have been post-traumatic having regard to the fall which he described as occurring on 1st July 1981." Comcare's written submissions conceded that Dr Griffiths "did not specifically address the role of the "nature and conditions" claim but appears to have had regard to it". The Tribunal's only two medical experts as at 2004 both acknowledged that the fall in 1981 could have contributed to Mr Lang's compensable injury; their disagreement was about the period within which the effects of any such aggravation could be expected to resolve. The Tribunal was required to address this disagreement although, of course, it was open to the Tribunal to find that the 1981 fall never occurred or that it preferred Dr Griffith's account as to its probable effect. 51 Comcare submits that, at the directions hearing prior to the final hearing of this matter, the Tribunal expressly excluded the 1981 fall from its consideration and therefore neither it nor Dr Talbot's report was any longer a relevant consideration. As noted above, I do not accept on the evidence before me that the Tribunal had so ordered. 52 In circumstances where the Tribunal's record does not clearly state that the issue was excluded, there is no transcript of the Tribunal hearing, both sides agree that Mr Lang was unrepresented and there were no written reasons issued, I am prepared to give Mr Lang the benefit of the doubt that the Tribunal did not expressly exclude the 1981 fall from its consideration. Even if I am wrong, however, my conclusion as to the merits of the present appeal from the Tribunal's decision would not be affected because of the Tribunal's obligation to give reasons.

The Tribunal's Obligation to Give Reasons 53 Mr Lang's final ground of appeal concerned the Tribunal's failure to give its reasons in respect of several material facts, including (and this was the focus of Mr Lang's submissions) the failure to give reasons for its rejection of Dr Talbot's report as relevant evidence. The Tribunal is entitled to accept or reject the respective pieces of evidence before it, or to accord certain pieces of evidence different weight. It is under no obligation to refer to all of the evidence before it, particularly where, as here, neither party made submissions on it. It would have been open for the Tribunal to reject Dr Talbot's evidence or simply to prefer the evidence of Dr Griffiths. The Tribunal is, however, obliged by s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) to include in its reasons findings on all material questions of fact. As noted in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 331 per Gleeson CJ and at 345-6 per McHugh, Gummow and Hayne JJ, with respect to a similar requirement found in s 430 of the Migration Act 1958 (Cth), this is not an obligation to make a finding on every question of fact that is regarded as objectively material by a court conducting judicial review of the Tribunal's decision. 54 Even if the Tribunal excluded consideration of the 1981 fall at the directions hearing it still had an obligation to give reasons for rejecting evidence that was plainly central to Mr Lang's claim and crucial to a medical report that supported that claim. Mr Lang was entitled to seek review of that decision. 55 If Comcare's submission about the directions hearing is incorrect, then plainly the Tribunal was required to indicate why it was that it preferred Dr Griffith's evidence. Given that the Tribunal had before it two medical reports that came to diametrically opposed conclusions it was obliged to explain why it either excluded one from its consideration or, if it considered both reports, why it preferred that of Dr Griffith. Its failure do so makes it impossible to understand the Tribunal's reasoning processes, and is itself an error of law; Telepacific Pty Limited v Commissioner of Taxation (2005) 218 ALR 85 at [54]. 56 For this reason Mr Lang's application must be allowed and the matter referred to the Tribunal for reconsideration according to law. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Solicitor for the Applicant: Legal Aid (Australian Capital Territory) Counsel for the Respondent: L Walker

Date of Hearing: 15 November 2006 & 21 December 2006