aa "Q6|19779 CATCHWORDS Employees' Compensation - Injury out of and in the Course of employment - Chronic paranoid hypochondria aggravated by injury -— Appeal from the Commonwealth Employees! Compensation Tribunal - Concession by Counsel ~ Commonwealth Employees Compensation Act 1930 ss. 4,8 and 9.Compensation (Australian Government Employees) Act 1971 SS. 27,29,30,95 and 104. Joseph Wurzel v. The Commonwealth of Australia No. VG 54 of 1977 Coram: Smithers, J. Place: Melbourne Date ; 12th December 1977. COMMONWEALTH hw THE FEDERAL COURT OF _AUSTRALTA 'GENERAL DIVISTON MEMBER OF THE BENCH: ORDER. OF THE COURT: OF _ AUSTRALIA No, VG 54 of 1977 ON APPEAL from the Commonwealth Employees! Compensation Tribunal Between - JOSEPH WURZEL And - 1. 2. Appellant THE COMMONWEALTH OF AUSTRALIA Respondent SMITHERS, J. That the appeal be allowed. (a) (b) That the question of quantum of compensation be adjourned and the matter be remitted to the Delegate of the Commissioner for Employees' Compensation for determination, liberty being reserved to the appellant to apply in respect of that determination; that it is directed that before the determination is finally made the appellant be informed of the basis of calculation proposed to be adopted and the sum payable in accordance there- with and the appellant afforded an opportunity to make sub- missions in relation thereto. That the Delegate of the Commissioner for Employees' Compensation proceed upon the basis that the condition of chronic paranoid hypochondria existing .. before 20th February 1968 was aggravated and accelerated by injury suffered by the appellant to the thenar portion of his hand on 20th February 1968 and that that injury arose by accident arising out of and in the course of the appellant's DATE: employment and that it was that injury which aggravated and accelerated the said condition of chronic paranoid hypochondria and that thereby the appellant was incapacitated for employment and that the appellant is entitled to compensation accordingly. That the respondent pay to the appellant his costs of and incidential to the appeal to and hearing before the Commonwealth Employees' Compensation Tribunal. 12th December 1977. COMMONWEALTH OF AUSTRALIA IN THE FEDERAL COURT OF AUSTRALIA No. VG 54 of 1977 GENERAL DIVISION ON APPEAL from the Commonwealth Employees! Compensation Tribunal Between - JOSEPH WURZEL Appellant And = THE COMMONWEALTH OF AUSTRALIA reponcene . DATE: Smithers, J. 42th December 1977. REASONS FOR JUDGMENT For some eleven years prior to 20th May 1969 the appellant was employed by the Postmaster-—General's Department in relation to the handling of mail. On 20th February 1968 he suffered injury by accident in the course of his employment with the Commonwealth of Australia. He took steps to claim compensation pursuant to the Commonwealth Employees! Compensation Act 1930. In his formal claim pursuant to the Act he declared that the nature of his injury was "injury to my left hand." On 13th January 1969 the Delegate of the Commissioner for Employees! Compensation made a determination in respect of that claim. The determination was in the following terms - "T hereby determine the said Joseph WURZEL sustained personal injury by accident arising out of or in the course of his employment by the Commonwealth on 20.2.68 namely - injured left little finger. In accordance with the provisions of paragraph (1) (b) of the First Schedule to the said Act, he is thereby entitled to the payment of compensation of $25~35 per week from 15.3.68 until 18.35.68 both dates inclusive. In accordance with the provisions of Section 11 of the said Act, the cost of medical treatment amounting to $8-50 in respect of the injury shall be paid." On 20th May 1969 the Senior Commonwealth Medical Officer advised the relevant Director of the Department of Posts and Telegraphs that - "ir. J. Wurzel has been medically examined. 2. He is suffering from anxiety state with gross depression. 3. The conditions are not due to causes within his control. 4 He is considered permanently unfit for further service. 5. I would recommend his retirement." As a result of this recommendation the appellant was retired forthwith from his employment with the Commonwealth. His employment status had been that of a temporary employee. It appears that at some stage prior to April 1971 there was correspondence between the Solicitors for the appellant and the Postmaster-General's Department in which the appellant claimed compensation in respect of loss of capacity to work due to an anxiety state said to be caused by a number of accidental injuries sustained by the appellant during his employment with the department. I am informed by the respondent that the nature of this claim appears from a letter from the appellant's solicitor to the Acting Director of the Postmaster-General's Department dated 15th April 1971 in which the appellant's Solicitors said, inter alia, |"and it is correct that our client is claiming that as a result of a series of accident (sic) whilst employed by the Commonwealth he sustained a wide range of injuries giving rise to an anxiety condition rendering him totally and permanently incapacitated for work. In the alternative, it is alleged that in any event he is permanently disabled because of the injury to the hand sustained whilst in the employment of the Commonwealth. We await the Commissioner's ruling." It would appear that the "ruling" was made in a determination by the Delegate of the Commissioner for Employees! Compensation dated 9th February 1972. It was made, as I am informed, by the respondent without further reference to the appellant. The determination was made on 9th February 1972 in the following terms — "(4) Specialist medical evidence indicates that the condition of chronic paranoid hypochondria suffered by the said Joseph Wurzel did not result from a particular event at a particular a ree | time which arose out of or in the course of, or while he was travelling to or from, his | employment by the Commonwealth. (2) Consequently, I am unable to find that the condition of chronic paranoid hypochondria suffered by the said Joseph Wurzel constituted an injury, or an aggravation, acceleration, or recurrence of a pre-existing ingury, that was a personal ingury by accident — (a) arising out of or in the course of his employment by the Commonwealth, within the meaning of section 9 of the Commonwealth Employeees' Compensation Act 1930, as amended; (b) while travelling to or from his : employment by the Commonwealth, within the meaning of section 9A of the Commonwealth Employees! Compensation Act 1930, as amended. \ (3) NOW THEREFORE, in pursuance of the provisions of the Compensation (Commomyealth Employees) Acts 1971, I hereby determine:- (a) The condition of chronic paranoid hypochondria suffered by the said Joseph Wurzel was not the result of personal injury in circumstances under which the Commonwealth would have been liable to pay compensation under the Commonwealth Employees' Compensation Act 1930, as amended. (b) Having regard to the provisions of sections 4 and 104 of the Compensation (Commonwealth Employees) Acts 1971, the Commonwealth is not therefore liable to pay compensation under the Compensation (Commonwealth Employees) Acts 1971 1n respect of the condition of chronic paranoid hypochondria,." Early in 1972 prior to this determination the appellant had commenced an action for damages against the Commonwealth in the Supreme Court of Victoria alleging that he had suffered 5. a crushed left hand with psychological consequences of anxiety and depression and the like in the accident of 20th February 1968 and that the injury was suffered by reason of the negligence of the Commonwealth. The action came on for hearing in September 1974 and on 16th September 1974 judgment was entered for th defendant (respondent). Against this judgment the vabinteee ' (appellant) appealed to the Full Court of Victoria. That Court set aside the judgment and ordered a new trial of the action. The new trial did not proceed because, as I am informed by the respondent, "the action was finally compromised on the basis which allowed Mr. Wurzel to make an additional claim for ; compensation under the then Commonwealth Employees! Compensation Act.......-.in effect it was to allow him to lodge a claim in respect of a mental condition following the injury in February 1968. He would have been out of time to put in that claim. A determination was made on 9th February 1972 and it is that determination which is at present before Your Honour...... In fact the settlement of the other proceedings was on the basis that Mr. Wurzel could either appeal against the determination of 9th February 1972 or seek judicial review, or whatever, out of time." | = The appellant did appeal. That appeal against the determination was heard | " - 6. before the Compensation Tribunal at Melbourne in June 1977. The appellant was represented by Mr. Stott of Counsel and line respondent by Mr. Wheeler of Counsel. On 27th June "4977 the Tribunal affirmed the determination of the Delegate. Written reasons for that decision were published. Against that decision the appellant has appealed to this Court. His appeal is brought pursuant to s. 95 of the Compensation (Australian Government Employees) Act 1971, hereinafter called the'"1971 Act" which permits such an appeal but on a question of law only. The appeal is brought to the Federal Court pursuant to s. 19 of the Federal Court of Australia Act 1976 and s. 3 of the Federal Court of Australia (Consequential Provisions) Act 1976. It is the duty of this Court to hear and determine the appeal and under s. 95 (3) it - "(a) may affirm, vary or set aside the decision of the Compensation Tribunal or the judgment or order of the prescribed Court; (b) may give such judgment, or make such order, as in all the circumstances it thinks fit; and (c) may remit the case for re-hearing and re- determination either with or without the hearing of further evidence, by the Compensation Tribunal or prescribed Court, or for re-determination by the Commissioner in accordance with the directions of the Federal Court of Australia." At the time of the determination of 9th February 1972 and the hearing of the appeal to the Tribunal the relevant Act was the Compensation (Australian Government Employees) Act of 1971 by which the Commonwealth Employees' ' — 7, Compensation Act of 1930 had been repealed. See sub-section 4 (1). It is provided by sub-section 4 (2) of the 1971 Act that - "Notwithstanding section 8 of the Acts Interpretation Act 1901-1966 the Commonwealth is not liable, on or after the proclaimed date, to make any payments under the Commonwealth Workmen's Compensation Act 1912 or the Commonwealth Employees' Compensation Act 1930-1971 but section 8 of the Acts Interpretation Act 1901-1966 otherivise applies in relation|to the repeals effected by the last preceding sub-section to the extent to which its application would not be inconsistent with the operation of any provision of this Act." Sub-section 104 (1) of the Compensation (Commonvealth Employees) Act 1971 provides that subject to Part VII of that Act, that Act applies in relation to an injury sustained, a disease contracted or an aggravation acceleration or recurrence of a disease suffered by an employee before the proclaimed date, as it applies in relation to an injury sustained or a disease contracted or an aggravation acceleration or a recurrence of a disease suffered by an employee on or after that date. The provisions of this sub-section are, so far as they speak, effective to render the Commonwealth liable to pay compensation for an injury pursuant to sub-section 27 (1) of the 1971 Act whether the injury were sustained before or after the 1971 Act came into operation. But sub-section 104 (2) provides that sub-section 104 (1) does not entitle a person to receive compensation in respect of an injury sustained before the proclaimed date, or in respect of a disease, or an aggravation acceleration or recurrence of a disease symptoms of which first became apparent before that date if compensation was not payable in jrespect of that injury that disease, or that aggravation 'acceleratzun or recurrence under the Commonwealth Employees' Compensation Act 19350 or that Act as amended, as in force at the time when the injury was sustained or symptoms of the disease or of the aggravation acceleration or recurrence first became apparent. According to s.5(1)of the Act of 1971 injury means any physical or mental injury and includes the aggravation acceleration or recurrence of any physical injury but subject to s. 29 of the Act does not include a disease or the aggravation acceleration or recurrence of a disease. Section 29 provides that where the employee contracts a disease or suffers an aggravation acceleration or recurrence * of a disease and any employment of the employee was a contributing factor to the contraction of the disease or to the aggravation acceleration or recurrence whether or not the disease was contracted or the aggravation acceleration or recurrence was suffered in the course of that employment, then if the partial or total incapacity for work results from the disease or from the aggravation acceleration or recurrence of the disease, for the purposes of the Act, unless the contrary intention appears the contraction of the disease or the aggravation acceleration or recurrence as the case may be shall be deemed to be a personal injury to the employee arising out of the employment of the employee by the Commonwealth and the date of the incapacity shall be deemed to be the date of the injury. The determination of 1972 appears to have proceeded on the view that aggravation of the appellant's alleged condition of chronic paranoid hypochondria could properly be | regarded as an injury as defined in s. 9 of the Commonwealth Employees' Compensation Act 1930 and compensible provided it was caused by, accident, and nonetheless so if it was a condition supervening upon a physical injury. It does not appear whether the Delegate regarded the condition of chronic paranoid hypochondria as an injury in itself or as a condition supervening upon a physical injury. As was said by Windeyer, J. in Federal Broom Co. Pty. Ltd. v. Semlitch (1964) 110 C.L.R. 626 at 642 - "It has, of course, been common in workers! compensation cases to treat as an incapacity resulting from a physical injury the total disability that follows from- it whether it be attributable only to the anatomical damage or to associated psychological and neurasthenic factors. The applicant's case might therefore have been put as follows. A minor bodily injury suffered by the applicant, a person of unstable mentality, had serious psychological consequences; and thus it resulted in incapacity for work. So put, the case would not depend upon the statutory provisions concerning disease but on the general word tinjury' ". Before the Tribunal the case made for the appellant was that the condition complained of was a condition supervening 10. = - upon a physical injury. | It is apparent that the Delegate proceeded on the | oe that the effect of s. 104 of the Act of 1971 was that compensation was only payable if the conditions of Commonwealth liability prescribed by the 1930 Act were established by the appellant. In other words, the provisions of s. 27 and s. 29 of the Act of 1971 eliminating the requirement that the injury be by accident, and expanding the definition of disease were irrelevant and the appellant carried the onus of proving a mental injury by accident. Whether this be so or not must be at least a matter of doubt. The circumstances do seem to have required attention to the possibility that the appellant's case was really referable to s. 27 of the 1971 Act in which event the appellant's case should have been considered according to the principles expressed in the High Court in Federal Broom Co. Pty. Ltd. v. Semlitch (supra). In that event proof of accident would not have been required as a condition of Commonwealth liability and it would have been for the Commonwealth to prove that under the Act of 1930 compensation would not have been payable. This would have been of importance because neither the Delegate nor the Tribunal made a finding that aggravation of the appellant's mental disorder was not caused by accident on 20th February 1968. However, when Mr. Stott opened the appeal to the Tribunal referring to the condition of chronic paranoid | V1. hypochondria he said - | l "The only ground of appeal is on the basis that the Delegate ought to have found that | the condition was the result of personal injury by accident. We are not relying on any of the disease provisions, it being an old Act claim." . The appeal was fought on this basis and was so understood by the Tribunal whose reasons for judgment commence with the statement - "He (the appellant) claims compensation for a condition of chronic paranoid hypochondria which he claims results from an injury to his hand at work on 20th February 1968." The Tribunal proceeded on the basis that aggravation or acceleration of the appellant's pre-existing condition of hypochondria came within the definition of injury contained in s. 4 of the Act and that if that injury was caused by accident arising out of or in the course of his employment by the Commonwealth it was compensible in accordance with s. 9 of that Act. The Tribunal addressed himself to two issues stated as follows - (i) whether the injuries to the hand caused the present psychriatic problem; (ii) whether an injury to and operations to the ball of the appellant's left hand, which it is said caused or accelerated the mental problem, arose out of the accident. 12. ~ The first issue was considered on the basis that on 20th February 1968 the appellant's injury affected not only the little finger but also the ball of the thumb, the theuar region. On that basis a number of witnesses gave evidence of the probable effect of such an injury and its sequelae, namely supervening pain and two surgical operations upon the appellant's already existing morbid condition of anxiety and depression. On this issue the Tribunal's finding was as follows - "T am not satisfied on the evidence of the claimant's mental condition prior to the accident in February 1968 that this accident made any significant change or accelerated or aggravated his long standing mental condition." The appellant contends that this decision is against the evidence which he says was all the other way. It is contended that the only finding open on the evidence was that the Tribunal was so satisfied. 'The witnesses who gave specialist psychiatric evidence on the point at the hearing were Dr. Kornan, Dr. Barnes, Dr. McCloskey and Dr. Sinclair. Dr. Kornan had examined the appellant in November 1972. He stated that he considered there was a relationship between the appellant's condition at that stage and the injury to his hand in February 1968. His evidence contained the following passages - 13. "Doctor, did the injury to the hand cause or precipitate any mental condition? -- Yes, I think we have here a man who was vulnerable but who would have in the absence of the hand injury been able to continue working. I think it is true to say that I am not sure that he would have got to 65, because with his sort of basic personality problems you often don't get through the whole working career, but I think he would have kept going certainly for a few years. I think what the hand injury did, and certainly the hand operation, was convince him that he was right and that secondly that what ever doctors told hin, there was a considerable doubt about. The hand effectively stopped him from working at least those extra years. Doctor you say that the incident in February 1968 caused some, perhaps I am using my own words - but dramatic change for the worse in this man's mental condition. Is that the way you put it, or am I mis-stating you? -~ Yes, I think that is so. I saw him some three years later and I am not certain as to-whether that dramatic change occurred quickly or whether it occurred over a period of a few months; but I think what it did do was start off this brooding and this cancer phobia in a significant way. Would it surprise you to hear that this man had had a cancer phobia even before this incident? Or say - perhaps I should put it in another term- that he had been worried about cancer even before this incident? -~ No, it wouldn't surprise me. I think this man ~ and the history is suggestive of this — that he was really a very vulnerable person. That he was emotionally easily disturbed and easily upset and had his significant personality problems for many years. You say the incident of February 1968 in fact accelerated a continuing mental illness; would that be a fair way of putting it? ~~ You could put it several ways. I think it certainly aggravated whatever was there. It accelerated the onset of probably what was an inevitable total decline. I think the worrying aspect was that he was subsequently proved right. Evidently some sort of neuro-vascular bundle was removed and obviously that was causing him some pain of some Gescription. Now, maybe in a normal person they would have been able to shrug that off, although he was in a job as a mail officer where they may have probably been more use of his hands than perhaps I would have had. There probably was some continuing pain; in a vulnerable person that was enough to really worsen him, plus the fact that with this cancer fear he was now probably convinced that well, if something could grow perhaps a cancer could grow, and this in a vulnerable person is enough to make them much worse. I think it is akin to - if you like - a woman who bumps her chest and then afterwards says, 'You know, I'm sure that is going to give me cancer', then has a breast operation for a lump which is perhaps non-malignant, but I think afterwards, is still going to be very worried and anxious. Now if she has been already 14. an unstable person beforehand, that is enough to really make her very disturbed." Dr. Barnes a psychiatrist examined the appellant in August 1970 and in March 1972 and in June 1977. Speaking with reference to August 1970 he said that the appellant - "explained his position to me in great detail and it would be impossible to record all his remarks as there was a great deal of content in his conversation. I regarded him 4s a person whose prognosis or outlook as far as a depressive illness was concerned, as being poor. He is, in my view, still suffering from a depressive condition which is related to hysterical' conversion reaction. I couldn't account positively for the physical findings but the basic situation is as I have said one of a conversion state. This condition is usually manifested, in his case, manifested by symptoms affecting the injured area and also the area which of course has been subjected to operation. But basically his problems arise from the underlying depression of his condition. I formed a view that his condition, as I did before, was still basically or significally, arose on the basis of aggravation and/or acceleration in a person who may well at least on the balance, be quite predisposed for reasons already stated in other reports, to develop a nervous condition. In other words, a personality which was prone to develop this sort of problem with this type of stress and injury, or any injury for that matter." His evidence continued as follows ~ "Doctor, given that predisposing personality, what is your view of the part played by the injury to the hand on 20 February 1968 and the subsequent treatment of that injury? -- Well, I would regard the initial injury to the hand as being what one might call the precipitating or aggravating factor. I think that the background to develop this sort of condition of course was set and that injury which was unusual and I believe unusually painful, did start a train of events leading to a more frank depressive condition or conversion state as I have outlined. The fact that he had operations, I think, further compounded the felony so to speak, that he expected relief following surgery, which didn't come. Although, as I have stated, after the last operation, he did obtain some relief. Further, also, he was extremely disturbed and anxious by the suggestion at one stage when he was operated on by Mr. Hooper I 45. think, that this condition may have been malignant. Therefore, I think this series of trauma, the original trauma is added to by the subsequent trauma of the operation. And if he is a man who has had a number of injuries over a pesiod of ten or eleven years, each individual injury or incident or what have you, would each contribute to the final state in which you saw him? -- Yes, one can't divorce those contributory factors from the picture as I saw it. You are not able to say how much of this man's inability to work, when you saw him, was due to the incident in February 1968? -— How much was due to other factors, either factors prior to then or factors after then? -- I think it's impossible to put that in terms of a quantitive percentage. All I could say was that injury was highly significant for him, particularly as it was subject to later surgery. From a psychological point of view." Two reports by Dr. McCloskey,one dated 12th November 1969 and another dated 4th May 1977 were admitted by consent. On 12th November 1969 Dr. McCloskey stated - "This patient has suffered a number of accidents in the P.M.G. and as a result, he is suffering from a gross anxiety state. Because of this anxiety state he is no longer fit for work. I consider this to be a permanent disability and I consider that the patient is suffering from a considerable disability. The patient's most pressing complaint at the moment is of intense pain in his left hand which has been described as chordalgia pain, however I have never seen chordalgia apart from an amputation stump, and I see no evidence of this patient having had his hand amputated. Therefore, 1n my opinion he is not suffering from chordalgia, but a soft tissue injury to his left hand and an acute anxiety state. This patient is unfit for work, and I would agree that he is not fit for work due to his anxiety state, and I think that this anxiety state has been precipitated by the numerous accidents he has had during the course of his employment." In May 1977 he stated — "Therefore .......the patient has had a number of accidents including one to his left hand and as a result of all hi- accidents and the one to the left hand in particular, he is permanently unfit for work." I 16. Dr. Sinclair was called for the respondent. A report of Dr. Sinclair dated 29th October 1971 was admitted. | The burden of its content is that the appellant was a paranoid | findividual more interested in the acceptance by others of his disability than even the disability itself. After noting that the appellant had had numerous injuries each of which was probably superficially non serious, the report states that the appellant - "has a gross phobic state ............ se ceccece ....-has no insignt and is preoccupied with the wish to have these injuries singly and in totality recognised as compensible injuries. With the exception of the meniscus I believe that not one of the injuries referred to, physically or psychologically has left a compensible state of incapacity. The other conclusion that I arrived at is that the personality of this man is such that he will continue in his efforts to have his illness recognised and accepted as being the fault of someone else rather than as I believe arising from his own personality." The report concludes — "Paranoid individuals have their malady firmly imbedded in their personality. They are usually self centred, meticulous, rigid, humourless and given to projection. This form of projection is used in any situation where there has been an instance about which the sufferer can feel righteously indignant. With the present Worker's Compensation Legislation this offers a very good avenue for pursuing a sense of injury and for expressing righteous indignation." Dr. Sinclair's specific diagnosis of the appellant's condition was that he was a chronic paranoid hypochondriac, In his evidence to the Tribunal Dr. Sinclair said that the appellant was not a good candidate for trauma and would be likely to over react to it. He said that with a true hypochondriac there was frequently insomnia due to the , patient milling over his symptoms and that there is likely to be a complaint of pain as being present at all times and retained within the patient's consciousness at all times and that when describing those pains their language is extreme, of a theatrical type. He said that he considered the appellant unfit for work that involves the use of his body. Dr. Sinclair was asked by the Tribunal whether he agreed with Dr. Barnes that the injury of February 1968 "was the aggravating factor which operated on his underlying condition", There was an interruption, and the Tribunal said, "I just asked you whether you think that the injury in 1968 was such an aggravating factor and whether it had that effect of developing the psycholcgical state to where it's gone — Would you agree with that as a proposition?" After further interruption the Tribunal said, "The particular point I am trying to ask you is whether you would agree with Dr. Barnes' description of the effect of the incident of 1968 had on his mental condition?". Dr. Sinclair said, "Yes, although I believe with a personality of this type any dramatic event would aggravate it. It's a bit like adding one more brick to a pyramid and any life situation that's an unhappy one, . particularly a dramatic one would aggravate it. I don't believe that what was a fairly simple accident was in itself a sole aggravating factor." The Trabunal said "I think Dr. Kornan didn't seem to think the accident was so much as the two operations that followed from it and the fact that after the first operation the pain did not go away." Dr. Sinclair said, "I think an operation is a dramatic, tangible thing and any operation leaves a scar and is sure to elaborate the 18. psychological disorder in the patient's mind. The operation itself was relatively minor." In the reasons for judgment it is said that this evidence of Dr. Sinclair is accepted and it was treated by the Tribunal as being in conflict with the view that the hand injury and the operations did materially aggravate the appellant's personality disorder. But whatever were the views of Dr. Sinclair as to the appellant's paranoia, on the issue]of the aggravating affect of trauma which was the critical point there was no conflict between Dr. Sinclair and the other witnesses. Dr. Sinclair confirmed the evidence of Dr. Barnes and expressed clear views as to the likely effect of a dramatic event along similar lines. So far as Dr. Sinclair questioned the evidence of Dr. Barnes, on the matter of the appellant's depression, it is to be observed that on this ~ matter there is strong support for the observations of Dr. Barnes from Commonwealth sources. It is my view to misunderstand the evidence of Dr. Sinclair to gather from it as the Tribunal appears to have done, that it supports the contention that the accident of 20th May 1968 and its sequelae including the operations made no significant change and was not likely to aggravate or accelerate his long standing mental condition. If, in connection with all this, one refers to the words of Dr. Sullivan, the Commonwealth Medical Officer written 19. in May 1969 when he decided the appellanLl must be dismissed, there is presented a most convincing picture of the state of the appellant, rightly or wrongly, but actually, obsessed and depressed by his hand injury. He said - "This man is in a tragic psychological condition, is introspective and has a fixation on various afflictions, including an unreasoning fear of cancer. He has some idea that doctors are keeping from him some dire ailment that afflicts him and they will not tell him. He is mainly preoccupied with a burning sensation of the thenar eminence of the left hand........and is wearing a glove on this hand, he actually recoils when one endeavours to palpate it, as if it is exquisitely tender and yet it is observed that when he arose from the couch, he put his full weight on this region to lift himself." Accordingly on this issue I am of opinion that the evidence is all one way to the effect that the hand injury and the operations materially aggravated the appellant's long standing condition. That was the only finding open on the first issue. I come now to the second issue as postulated by the Tribunal, namely whether an injury and operations to the ball of the appellant's left hand, which it is said caused or accelerated the mental problem, arose out of the accident. If, then,some injury to the appellant's hand and supervening pain and operations aggravated the appellant's personality disorder the question is whether that injury was initiated by what occurred in the incident in which some part or 20. parts of the appellant's hand were injured on 20th February 1968. Two questions are wrapped up in this issue as stated. First, wasthe ball of the hand injured on 20th February 1968 and second, if it was, were pain and operative treatment a consequence thereof. There is no real dispute that this i second question should be resolved in the affirmative. The finding of the Tribunal on the first of 'these questions was that he was not satisfied that the ball of the hand did suffer injury on 20th February 1968. The evidence of the appellant was very relevant. He was the person who really knew what part of his hand had been squashed 1n a material way in the accident of 20th February 1968. This was a critical question. If the only injury to the hand was to the little finger then the "link" between the accident of 20th February 1968 and the subsequent troubles in the thenar region could not be established. It was necessary that the value of the appellant's evidence should be carefully assessed with respect to the appellant's credibility and his capacity to remember the events of 20th February 1968. In this connection the Tribunal stated - "In this present unfortunate condition little weight can be attached to what the claimant said in evidence. Nevertheless, I should have expected some explanation from him as to how his complaint in December 1967 of a hot burning sensation in the palm of the left hand did, or 21. did not, relate to the pain which he subsequently claimed flowed from the accidenl in February. There is no doubt that he had a serious mental sickness before the injury there is no doubt that he had a cancer phobia before the injury. I do not accept the claimant's denial of very frequent Minor injuries before the accident in the face of all the other evidence. As Dr. Sullivan put in relation to the claimant's record of injuries — 'You see there are many many. I would have to go through these. There's the right hand there, heel, right leg, the knees, the right mid finger, right eye, there is a finger here (not specified which one) - finger improving, painful pack, bruised muscles, bruised chest In the conduct of the case the respondent made no challenge to the evidence of the appellant that the thenar or ball of the thumb had been squashed in the accident. Indeed it was after the appellant had been re-examined that Counsel for the respondent sought leave to ask about the details of the accident, and when the appellant described it he said - "That's all I wanted to know Mr. Wurzel." It was after this, in the opening of the case for the respondent, that the following passage ensued - Mr. "May I say itts conceded that there was a hand injury Wheeler: Perhaps it's not formally conceded that any other part of his hand, other than the little finger, was injured on that occasion, but it seems pretty clear that the evidence is that some other part of the hand was injured. The You say that it's pretty clear that some other parts Tribunal: of the hand were injured? Mr. Yes. T have no evidence that by and large could in Wheeler: any way impinge upon the evidence given. It may be that it would be convenient if the Tribunal made a formal findang in respect of whether there was a part of the hand ingured other than the little finger. But that's not strictly part of the Tribunal's present functions in my submission. Even assuming the hand injury as is claimed by the applicant, which for the 22. purposes of the main argument, I wish to put to the Tribunal, can be assumed, there is no causative link in my submission between that and his present mental condition." Counsel for the respondent informed me that in his final address he withdrew the concession he had made. The matter proceeded as follows -— Mr. Wheeler: His Honour: Mr. Wheeler: His Honour: Mr. Wheeler: His Honour: Mr. Wheeler: His Honour: Mr. Wheeler: His Honour: Mr. Wheeler: "That concession was specifically wstndrer,| It does not appear in transcript because it was at a time of final addresses, which were not reported, I think it proper to mention that, in case your Honour draws some conclusion from that, that Mr. Ballard had accepted a concession and then not relied upon a concession. He did not rely upon it, anyway, did he? No, he did not rely upon it. What happens if you make a concession like that? What was happening at p.57; that was early, was it? It was at a time before I had called any evidence. You were calling Mr. Sullivan? You did not withdrar that until the addresses ~ you would be the first to go, I suppose? I am trying to recall at precisely what stage that occurred. I remember discussing it with my learned friend Mr. Stott, in the presence of the tribunal. What did Mr. Stott have to say about that? I think he said he wanted to rely on any concessions I had made. : It is a little awkward, is it not, withdrawing a concession at the last moment in a case? If the case has gone ahead on a certain basis, how do you do that? Because, aS I say, at a stage at which the appellant had concluded his evidence. It did not, in ny submission, affect the evidence or the course of the further evidence in the case. His Honour: Mr. Wheeler: His Honour: Mr. Wheeler: His Honour: Mr. Wheeler: His Honour: Mr. Wheeler: His Honour: Mr. Wheeler: His Honour: 23. es Cross—examination might have been different. It just shows you, everybody says: I do not want counsel's address; you nearly always do. The situation is clarified by the section at the top of the next page. I do not say it is completely clarified, but —- 'T have no evidence that by and large...... (reads) eeeeeee. and I emphasise the word allness.' Might I say in relation to the question you raised about that concession, all I can say is it was withdrawn, I am unsure whether it was in final addresses, where I thought it was and I assumed that because the final addresses were not taken and the other comments of Mr. Stott and myself do not appear on the transcript. I do recollect that although I am not sure it was not that afternoon. It seemed more likely that it was in the addresses because I gather it was not in the other parts of the transcript. No, it certainly does not appear. I do not know that there is any more I can help your Honour with. Naturally, I accept what you say but I am just wondering if you can go around doing that kind of thing. What does Mr. Wurzel say? He says: That is no good to me; they conceded this. My counsel proceeded or the basis that it was conceded. Might he not ask Dr. Sullivan a whole lot of questions he did not ask him? All I can say is to that is there was no such submission made to the tribunal. Yes, I see. You cannot remember quite what Mr. Stott said, but he did not say that or anything like that? That is so. As far as I can remember, whenever it was raised I think the tribunal raised the question and I said that I, in so far as I had made a concession, sought to withdraw it and I think the tribunal then said: What do you say, Mr. Stott. Mr. Stott said: I seek to rely on any concessions that are made. As far as I remember that was what happened and I believe I am accurate that that is as far as the dicussion went. He did not accept it then on that basis. He says: All right, the concession was made; I seek to rely on it. A curious situation. Well. that is your recollection of it, is it, that it proceeded along those lines? wpe --s - 24. Mr. The transcript of the addresses could be Wheeler: obtained, but it was not taken down at all; it was not recorded. His Not recorded? Honour: His I wonder if the tape is still in existence? Honour: Mr. I will have enquiries made but I have a Wheeler: recollection of the tape being switched off; that is why I did not think it was recorded. His If the tape comes to light, you will let me Honour: know? Mr. Certainly." Wheeler: In the absence of further information I assume the tape is not available. This concession is not referred to in the reasons for judgment of the Tribunal. This concession could not properly be withdrawn when it was, without the consent of the appellant, or at least on appropriate conditions. The conduct of the appellant's case might have been different had it not been made. It was at the very least an admission made deliberately with full knowledge and as such of much importance. Tt is to be observed that although there was plenty of evidence that the appellant had a long standing personality disorder of anxiety, depression, probably hypochondria and paranoia, there is nothing to indicate that the appellant was a conscious liar or that he was incapable of remembering events of sigaificance. Certainly in evaluating' evidence of the 25. serverity of pain and symptoms, the statements of the appellant would require careful scrutiny because of his paranoia. As Dr. Sinclair said, reaction to trauma would probably be over- reaction. But I find nothing in the evidence to justify a finding that on the question of what part of his hand was squashed on 20th February 1968 the evidence of the appellant was to be depreciated on the basis that however rational or satisfactory or credible it might otherwise appear, it was necessarily to be treated as of little weight becausejof his present unfortunate condition. The task of the Tribunal was to consider it without classifying it as necessarily of little weight, not, of course, ignoring the appellant's personality and illness but valuing the evidence by reference to all appropriate considerations of demeanour, rationality, sincerity, memory and the like. In this appeal the appellant conducted his own case and his personality necessarily obtruded. But he certainly exhibited a good memory. If his present condition is anything like that of dune 1977 I would certainly not think that his evidence of past events was necessarily of little value. Having indicated that the evidence of the appellant must necessarily be of little weight, the Tribunal attached importance to the fact that the appellant failed to explain how a complaint by him in December 1967 of a hot burning sensation in the palm of the left hand did, or did not, relate | " ° ; 26. to the pain which he subsequently claimed followed the accident in February. As to this the Tribunal said — j"Nevertheless, I would have expected some explanation on this matter from him." "Nevertheless" apparently means "despite his evidence being of little weight." This seems to be put to the appellant's credit. If so, it is inapt and operates unfairly because the omission to give an explanation, if there were one, would result not from any initiative of the appellant but depended on the questions he was asked by his own counsel, counsel for the respondent and the Tribunal. In any event the matter was not one for explanation but for evidence of the relevant facts. On the point of substance it is to be observed that the appellant's case was that his thenar was injured on 20th February 1968. The thenar is quite distinct from the palm area of the hand and if it was desired to argue that some old injury in the palm caused the pains in the thenar then it was for the party making that case to call the evidence to support it. This aspect of the matter is discussed hereafter. There is no support in the evidence for the suggestion that the hot burning sensation in the palm reported by the appellant in December 1967 and which had apparently not recurred, was likely to have caused the pains and disability in the thenar region which came on after 20th February 1968. It would seem also that in relation to the appellant's i credibility the Tribunal attached importance to his denial that there had been very frequent minor injuries before the accident. But the fact is that the appellant made no such 27. denial, He certainly said that he thought 80 visits to first aid was a gross exaggeration, but that is quite a different thing. He gave evidence in chief that he has had many injuries, some serious and others of a trivial nature, and in cross-examination he agreed he had suffered "many many" injuries. It is clear, therefore, that the credibility of the appellant was discounted on grounds which cannot be supported. If those grounds are ignored and the rest of the evidence is regarded there is much support for the view that the appellant must have hurt his hand in the thenar region on 20th February 1968. Really the only matter of consequence which may be said to conflict with the appellant's evidence on this point is that it is said in the reasons for judgment of the Tribunal that when the appellant reported to Dr. Sullivan on 20th February 1968 he did not mention that the thenar region was involved. It is to be observed, however, that Dr. Sullivan did not say this specifically. It is perhaps reasonable to infer it but it was not said. The respondent did not lead such evidence from Dr. Sullivan. The respondent did not cross-examine the appellant on that point, and the appellant's counsel did not cross-examine Dr. Sullivan on it. The inference, if it was involved in what the doctor had written down in 1968, was, at that stage of the case, unimportant in view of the respondent's concession as to the injury to other parts of the hand. Had it been otherwise 28. the appellant should have been given an opportunity to explain. And of course whether the inference from what the doctor had written down is sound or not it has to be considered in the light of the inherent probabilities and other evidence. It is clear that in the early stages, the injury to the little finger was giving the appellant most worry, and the appellant's over-reaction to his little finger was there in evidence. It is quite likely from what appears to have been the nature of the actual injury suffered by;the appellant to the rest of the hand that its effects at| thet time were minor compared with the little finger. It was quite likely that what was engrossing Dr. Sullivan on that day was irritation at an x-ray of that injury being demanded, and what was engrossing the appellant on that day was his fear that there was a bone injury to his little finger. I look therefore at the other evidence. On the evidence it is a proper inference that the appellant's hand was in good condition on 20th February 1968 and that on that day he squashed the little finger. Whether he did some injury to the thenar region is the issue. His evidence is that he reported the incident to first aid and to his overseer forthwith. No evidence as called from first aid or the overseer to indicate what were the precise terms of the report. No suggestion was put to the appellant that this report to first aid or the overseer was in respect of injury to the little finger only. The 27th February 1968 was the day on which the appellant sought x-ray from Dr. Sullivan. Whatever was said that day it is clear that 29. on 15th March 1968 the appellant consulted Dr. Muschin and stated he had hurt the whole of the knuckle area of the hand and the ball of the hand. Dr. Muschin said that it had to do with the movement of the thumb, he said that there was pain and tenderness in that region right across the back of the hand and a certain amount of residual bruising. On 18th March Dr. Muschin referred the appellant to Dr. Rowlands who conducted an x-ray first of all of the little finger and shortly after of the whole hand. Nothing was revealed but the appellant still continued to consult Dr. Muschin who certified on 9th September 1968 that he was having "pains 1n the left hand which he injured at work in February last and that he needed a complete rest and general treatment for three months from now." In September 1968 Dr. Matthews of the department reported that the appellant had many complaints and says the worst one at present "is pain and swelling of the left hand." Swelling was something Dr. Matthews could see. In December 1968 the same officer reported that the appellant had his left arm put in plaster about a month before and that operation for carpel tunnel was recommended but his mental condition didn't permit it. In April 1969 Dr. Thrift found that the appellant's principal complaint was that in the left hand and wrists which the appellant stated he had squashed in a door just over a year previously. He thought there had been a contusion in the muscle of the left thumb where there was tenderness. He considered the appellant as one having a low threshhold of pain. He said 30. however, that a crush injury between objects of considerable mass can result in a very painful condition frequently out of all proportion to the original injury where there are nerves that are contused. Any increase in mass such as these small Jumps can result in a compression of the median nerve. In April 1969 the appellant told him that he had a burning pain, not constant, particularly at night. Dr. Thrift said that he felt that the complaints that the appellant made of pain and disability were genuire. In May 1969 Dr. Thrift accepted that the appellant was still having constant pain in his left thumb. In May 1969 Dr. Sullivan found the appellant complaining of a burning sensation in the thenar eminence of the left hand. In September 1969 Dr. Muschin referred the appellant to Mr. Hooper. So far as Mr. Hooper is concerned it is well to take into account the comments of Dr. Aberdeen. He said - "Well I think Mr. Hooper is a very wise and learned man and I am quite sure he wouldn't need the records of the Postmaster-General's Department to sum Mr. Wurzel up." Mr. Hooper took the appellant's thenar hand condition seriously. He examined the appellant's hand and found tenderness in the region of the ball of the thumb and a slight suggestion of a small lump in that region and slight swelling at the ball of the thumb. Tn December 1969 an electro-myogram was carried out disclosing what Mr. Hooper thought was a glomus tumour. At jthe operation in 1971 the lump thought to be a glomus tumour was not found. However, Mr. Hooper divided a nerve to reduce jpain in the area. J At the second operation in January 1973 Mr. Hooper found what he had thought in December 1969 to be the glomus tumour. It was not a glomus tumour but was scar tissue which had become a painful nodule. Scar tissue is the result of haemorrhage and Mr. Hooper's opinion is that the appellant had had ahaemorrhage into the ball of the thumb and that this formed the scar and involved nerve ends and became a painful nodule. The evidence of Mr. Hooper that the scar tissue was there before the operation of 1971 is quite clear. As he said in cross—exaimination - "He did not have a glomus tumour, but he did have something......... namely the scar tissue," The reasons for judgment of the Tribunal disclose that considerable attention was given to the question whether there was a link between the injury to the little finger and the pains subsequently suffered by the appellant in the thenar area. The question appears to have been posed on the basis that the only part of the hand involved in the incident of 20th February 1968 was the little finger. The Tribunal decided that there was no evidence of any such link. In this he was undoubtedly right. As to such a possibility, Dr. Aberdeen said "In no way. " The appellant's case depended therefore on his establishing that the thenar part of the hand was injured when the hand was caught between the door and the trolley on 20th 32. February 1968. If one forgets the appellant's evidence on this point the evidence is that on 15th March 1968 the hand was found to be injured in the manner described by Dr. Muschin. What he found was not only what the appellant told him about injury of the thenar region on 20th February 1968 but residual bruising which he would see apparently right across the back of the hand, that the symptoms observed on 18th March were consistent with continuing pain and tenderness in the thenar area in later examinations. In September 1968 Dr. Matthews observed swelling in the left hand. In September 1968 Dr. Muschin certified pains in the left hand. In April 1969 Dr. Thrift formed the opinion there had been a contusion in the area which would be consistent with a crushing injury. In September 1969 Mr. Hooper detected the small lump which turned out to be scar tissue. In these circumstances the question arose as to the probable cause of the continuing pains in the thenar region. There was the incident of 20th February 1968 which might have caused it. There was in the appellant's case no evidence of any other probable cause. However ,the Tribunal was of opinion that the pains might have been related to and apparently a development of an injury to the middle finger in respect of which it appeared that in December 1967 the appellant had suffered a purning sensation in some unspecified portion of the palm of the left hand. As to this the Tribunal said - 33. - "T am not satisfied that the pain to the ball of the hand was not the same pain as that complained of two months before the accident. I make no finding as to this. It does not really matter whether this is so or whether it developed after the accident." The meaning of this is not clear, but it certainly appears that in his consideration of the possibilities the Tribunal took into account what was really a finding on his part thst the evidence, while not establishing that the December 1967 injury was the cause of the later pains in the thenar area, nevertheless pointed with significant persuasive force to the December 1967 injury as the likely source of the subsequent thenar troubles. If it were that the thenar pains were a development of recurrence or aggravation of the injury of December 1967 which produced a hot burning sensation, a question would immediately arise as to whether the recurrence or aggravation was not caused by the hand ingury of 20th February 1968. But ignoring this question, the situation would be that if the evidence concerning the December 1967 condition did point significantly to that condition as a reasonable explanation of the thenar pains, then in the absence of evidence to explain that hypothesis away, there would remain a doubt on the balance of probabilities as to which of two competing possible causes was the real one. Of course it was necessary for the appellant to establish on the balance of probabilities that the pains were 34. the result of injury on 20th February 1968, and to do that by reference to the whole of the evidence as it stood at the end of the hearing. At that stage there had to be taken into account what Barwick, C.J. said in Purkess v. Crittenden, 114 C.L.R. 168 that "evidence ..... which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects....their future develop. ment vere likely to be "When such evidence has been given then the party against whom it operates will neglect to call explanatory or contradictory evidence at his peril. But the burden of calling such explanatory or contradictory evidence does not arise when the most than can be said of the existence and effect of any such alleged pre- existing condition is that it is merely a suggestion thereof. And that of course is more than can be said in this case. The fact that there was a burning sensation in the palm of the hand in some unspecified place and of some unspecified intensity and apparently relating in some way to the middle finger suggests nothing about pains in the thenar region where there was bleeding causing scar tissue in that area, even if the pains in that area were at some stage described as a burning sensation. The appellant was asked in cross-examination whether in December 1967 he attended first aid complaining about discomfort in the middle finger of the left hand and in the palm of the hand. He answered, "No, I complained with regard to the middle finger which had been lanced." He was asked nothing more about it. 35. In the respoudent's files there appeared an entry "December 1967, discomfort left middle finger, also palm of the left hand, hot burning sensation. Dressing applied to left mid finger." Dr. Sullivan who was giving evidence when the entry was read, was asked nothing about it and said nothing about it. It does not seem to have been referred to elsewhere in the evidence. As it stands 1t is not even suggested that the injury referred to could have developed into the injury in the thenar region. It is not described with reasonable precision and there is nothing to suggest that it had the potential for any further development let alone to have caused the bleeding which caused the scar tissue in the thenar. And of course as a matter of probability it is impossible to think that one of the large party of competent medical men including surgeons would not have explained the symptom of the 1967 injury as relevant if it had any relevance and one would have thought that the respondent with all the knowledge it had about the appellant's hand would have done something about it by way of evidence. It was not open for the Tribunal, acting reasonably, to find that that injury was to be reasonably regarded as an alternative cause of the thenar pains which came on early in 1968 and persisted through ensuing years. In directing himself that there was some burden on the appellant to call evidence on the matter, the Tribunal was in error as a matter of law. This is an important matter in this case because if the 36. Tribunal had not considered that it was for the appellant to call evidence about the nature and effect of the alleged pre-existing condition some difficulty would have been experienced 1n explaining the facts otherwise than by reference to the events of 20th February 1968. The outstanding facts are - (i) that the appellant complained about pain in! the thenar region at least on 15th March 1968 la bruising was actually observed by Dr. Muschin which indicated that an extensive area of the hand had been involved; (ii) that Dr. Muschin attended the appellant on a number of occasions between 15th March 1968 until about 1974 and was able to say to the Tribunal, "I know that I've got a physical evidence of an injury to his hand." It is clear he was not talking about the little finger; (iii) that there is medical evidence of a Commonwealth doctor of swelling in the area in September 1968; (iv) that in April 1969 Dr. Thrift found conditions which led him to conlude that there had been a contusion in the area; (v) that in 1969 Mr. Hooper found a suggestion of a lump in the area which he was able to identify at his 1973 operation as being scar tissue; (vi) that it was the opinion of Mr. Hooper that the appellant must have had a haemorrhage into the ball of the thumb and that this formed a scar and 37. involved nerve ends; (vii) that when there is bruising blood escapes and may form fibrous tissue and the first onset of pain due to bleeding may not be for months; (viii) there is no suggestion that the appellant suffered any other hand injury after 20th February 1968 ; (ix) the type of event which occurred on 20th February 1968 was such that an injury to the soft titeue thenar area would be quite within the pounal of likelihood. It was for the Tribunal to make a finding on the balance of probabilities. If he had approached the matterfully appreciating the effects of the evidence of the witnesses, especially that of Dr. Muschin and Mr. Hooper, untroubled about the possible effects of the December 1967 injury, without writing dovm the appellant's evidence as necessarily of little weight, and as subject to comments going to its credibility as discussed above, I fail to see how he could have failed to be satisfied on the probabilities that there was an injury of the thenar region. In my opinion that conclusion was the only one open on the evidence. I have .spoken above on the basis that the evidence of Dr. Muschin and Mr. Hooper and the other medical witnesses is credible and I think that this was not called ' 38. "into question by the Tribunal. That does not mean that their J | evidence should be acted upon without critical examination. Mr. Hooper's evidence at the trial in the Supreme Court was admitted by consent of both parties. The material portion which I have emphasised above was to be understood only on a close examination of his testimony. But when understood, it was quite unequivocal on the critical point about the existence in 1969 of what turned out to be scar tissue. Dr. Aberdeen's evidence at the trial was also admitted by consent. I found in it nothing to qualify any of the "facts" which I have set out above. In reading his evidence it has to be remembered that in portions of his evidence he was speaking on assumptions wrongly made by Counsel asking the questions, and in ignorance of the unambiguous evidence of Mr, Hooper that the scar tissue, which he found in 1974 was the lump which he had detected in 1969. It is this same item of ( evidence which is not mentioned in the reasons for judgment of "the Tribunal. Its significance is of course very great. As appears from the foregoing it is my opinion that | the conclusion referred to above flows from the evidence without reference to the concession which was made by the respondent as to the parts of the hand which were injured in the incident ' : of 20th February 1968. Even if that concession is to be treated D as no more than an admission it materially supports the factual conclusion so reached. By reason of the foregoing I am satisfied that it was established before the Tribunal that the condition of chronic paranoid hypochondria suffered by the appellant was aggravated and accelerated by the injury to the appellant's hand by accident arising out of and in the course of the appellant's employment with the respondent on 20th February 1968 and that as a result thereof he was incapacitated for employment and is entitled to compensation in respect of such incapacity. Accordingly the appeal is allowed and the question of quantum of compensation remains. I therefore give liberty to the parties to call evidence on this issue as they may be advised and adjourn the matter to a date to be fixed. , "treauaas\ Peon, | CATCHWORDS © Employees' Compensation - Injury out of and in the ! Course of employment — Chronic paranoid hypochondria aggravated by injury - Appeal from the Commonwealth Employees! Compensation Tribunal - Concession by Counsel - Commonwealth Employees Compensation Act 1930 ss. 4,8 and 9.Compensation (Australian Government Employees) Act 1971 Joseph Wurzel v. The Commonwealth of Australia No. VG 54 of 1977 Coram: Smithers, J. Place: Melbourne Date : 12th December 1977. | | COMMONWEALTH OF AUSTRALIA by THE FEDERAL COURT OF AUSTRALLA GENERAL DIVISION MEMBER _OF THE BENCH: ORDER OF LHE COURT: No. VG 54 of 1977 ON APPEAL from the Commonvealth Employees' Compensation Tribunal Between - JOSEPH WURZEL Appellant And ~ 1. 2. THE COMMONWEALTH OF AUSTRALIA Respondent SMITHERS, J. That the appeal be allowed. (a) That the question of quantum of compensation be adjourned and the matter be remitted to the Delegate of the Commissioner - for Employees! Compensation for determination, liberty being reserved to the appellant to apply in respect of that determination; (b) that it is directed that before the determination is finally made the appellant be informed of the basis of calculation proposed to be adopted and the sum payable in accordance there- with and the appellant afforded an opportunity to make sub- missions in relation thereto. That the Delegate of the Commissioner for Employees! Compensation proceed upon the basis that the condition of chronic paranoid hypochondria existing | before 20th February 1968 was aggravated and accelerated by injury suffered by the appellant to the thenar portion of his hand on 20th February 1968 and that that injury arose by accident arising out of and in the course of the appellant's DATE: employment and that it was that injury which aggravated and accelerated the said condition of chronic paranoid hypochondria and that thereby the appellant was incapacitated for employment and that the appellant is entitled to compensation accordingly. That the respondent pay to the appellant his costs of and incidential to the appeal to and hearing before the Commonwealth Employees! Compensation Tribunal. 12th December 1977. COMMONWEALTH OF AUSTRALTA IN THE FEDERAL COURT OF AUSTRALIA No. VG 54 of 1977 GENERAL DIVISION ON APPEAL from the Commonwealth Employees'. Compensation Tribunal Between — JOSEPH WURZEL Appellant And - | THE COMMONWEALTH OF AUSTRALIA Respondent DATE: Smithers, J. 12th December 1977. REASONS FOR JUDGMENT For some eleven years prior to 20th May 1969 the appellant was employed by the Postmaster-General's Department in relation to the handling of mail. On 20th February 1968 he suffered injury by accident in the course of his employment with the Commonwealth of Australia. He took steps to claim compensation pursuant to the Commonwealth Employees! Compensation Act 1930. In his formal claim pursuant to the Act he declared that the nature of his injury was "injury to my left hand." On 13th January 1969 the Delegate of the Commissioner for Employees! Compensation made a determination in respect of that claim. The determination was in the following terms - "J hereby determine the said Joseph WURZEL sustained personal ingury by accident arising out of or in the course of his employment by the Commonwealth on 20.2.68 namely - injured left little finger. In accordance with the provisions of paragraph (1) (b) of the First Schedule to the said Act, he is thereby entitled to the payment of compensation of $25-35 per week from 15.34.68 until 18.35.68 both dates inclusive. In accordance with the provisions of Section 11 of the said Act, the cost of medical treatment amounting to $8-50 in respect of the ingury shall be paid." On 20th May 1969 the Senior Commonwealth Medical Officer advised the relevant Director of the Department of Posts and Telegraphs that - "Mr. J. Wurzel has been medically examined. He is suffering from anxiety state with gross depression. The conditions are not due to causes within his control. He is considered permanently unfit for further service. I would recommend his retirement." As a result of this recommendation the appellant was retired forthwith from his employment with the Commonvealth. His employment status had been that of a temporary employee. It appears that at some stage prior to April 1971 there was correspondence between the Solicitors for the appellant and the Postmaster-—General's Department in which the appellant tr 3. claimed compensation in respect of loss of capacity to work due to an anxiety state said to be caused by a number of accidental injuries sustained by the appellant during his employment with the department. I am informed by the respondent that the nature of this claim appears from a letter from the appellant's solicitor to the Acting Director of the Postmaster-—General's Department dated 15th April 1971 in which the appellant's Solicitors said, inter alia, !"and it is correct that our client is claiming that as a result of a series of accident (sic) whilst employed by the Commonwealth he sustained a wide range of injuries giving rise to an anxiety condition rendering him totally and permanently incapacitated for work. In the alternative, it is alleged that in any event he is permanently disabled because of the injury to the hand sustained whilst in the employment of the Commonwealth. We await the Commissioner's ruling." It would appear that the "ruling" was made ina determination by the Delegate of the Commissioner for Employees' Compensation dated 9th February 1972. It was made, as I am informed, by the respondent without further reference to the appellant. The determination was made on 9th February 1972 in the following terms —- "(4) Specialist medical evidence indicates that the condition of chronic paranoid hypochondria suffered by the said Joseph Wurzel did not result from a particular event at a particular (2) (3) time which arose out of or in the course of, or while he was travelling to or from, his employment by the Commonvealth. Consequently, I am unable to find that the condition of chronic paranoid hypochondria suffered by the said Joseph Wurzel constituted an injury, or an aggravation, acceleration, or recurrence of a pre-existing injury, that was a personal injury by accident —- (a) (b) arising out of or in the course of his employment by the Commonwealth, within the meaning of section 9 of the Commonwealth Employeees' Compensation Act 1930, as amended; while travelling to or from his employment by the Commonwealth, within the meaning of section 9A of the Commonwealth Employees! Compensation Act 1930, as amended. NOW THEREFORE, in pursuance of the provisions of the Compensation (Commonvealth Employees) Acts 1971, I hereby determine:- (a) (b) The condition of chronic paranoid hypochondria suffered by the said Joseph Wurzel was not the result of personal injury in circumstances under which the Commonwealth would have been liable to pay compensation under the Commonwealth Employees' Compensation Act 1930, as amended. Having regard to the provisions of sections 4 and 104 of the Compensation (Commonyealth Employees) Acts 1971, the Commonwealth is not therefore liable to pay compensation under the Compensation (Commonwealth Employees) Acts 1971 in respect of the condition of chronic paranoid hypochondria." Early in 1972 prior to this determination the appellant had commenced an action for damages against the Commonwealth in the Supreme Court of Victoria alleging that he had suffered 5. a crushed left hand with psychological consequences of anxiety and depression and the like in the accident of 20th February 1968 and that the injury was suffered by reason of the negligence of the Commonwealth. The action came on for hearing in September 1974 and on 16th September 1974 judgment was entered for tne defendant (respondent). Against this judgment the plaintiff (appellant) appealed to the Full Court of Victoria. That Court set aside the judgment and ordered a new trial of the action. The new trial did not proceed because, as I am informed by the respondent, "the action was finally compromised on the basis which allowed Mr. Wurzel to make an additional claim for compensation under the then Commonwealth Employees' Compensation Act.........In effect it was to allow him to lodge a claim in respect of a mental condition following the injury in February 1968. He would have been out of time to put in that claim. A determination was made on 9th February 1972 and it is that determination which is at present before Your Honour...... In fact the settlement of the other proceedings was on the basis that Mr. Wurzel could either appeal against the determination of 9th February 1972 or seek judicial review, or whatever, out of time." The appellant did appeal. That appeal against the determination was heard ~ . 6. before the Compensation Tribunal at Melbourne in June 1977. The appellant was represented by Mr. Stott of Counsel and the respondent by Mr. Wheeler of Ccunsel. On 27th June 1977 the Tribunal affirmed the detcrmination of the Delegate. Written reasons for that decision were published. Against that decision the appellant has appealed to this Court. His appeal is brought pursuant to s. 95 of the Compensation (Australian Government Employees) Act 1971, hereinafter called the"1971 Act" which permits such an appeal but on a question of law only. The appeal is brought to the Federal Court pursuant to s. 19 of the Federal Court of Australia Act 1976 and s. 3 of the Federal Court of Australia (Consequential Provisions) Act 1976. It is the duty of this Court to hear and determine the appeal and under s. 95 (3) it - "(a) may affirm, vary or set aside the decision of the Compensation Tribunal or the judgment or order of the prescribed Court; (b) may give such judgment, or make such order, as in all the circumstances it thinks fit; and (c) may remit the case for re-hearing and re- determination either with or without the hearing of further evidence, by the Compensation Tribunal or prescribed Court, or for re-determination by the Commissioner in accordance with the directions of the Federal Court of Australia." At the time of the determination of 9th February 1972 and the hearing of the appeal to the Tribunal the relevant Act was the Compensation (Australian Government Employees) Act of 1971 by which the Commonwealth Employees' — 7. Compensation Act of 1930 had been repealed. See sub-section 4 (1). It is provided by sub-section 4 (2) of the 1971 Act that - "Notwithstanding section 8 of the Acts Interpretation Act 1901-1966 the Commonvealth is not liable, on or after the proclaimed date, to make any payments under the Commonwealth Workmen's Compensation Act 1912 or the Commonvealth Employees! Compensation Act 1930-1971 but section 8 of the Acts Interpretation Act 1901-1966 otherwise applies in relation}to the repeals effected by the last preceding sub4+section to the extent to which its application would not be inconsistent with the operation of any provision of this Act." Sub-section 104 (1) of the Compensation (Commonwealth Employees) Act 1971 provides that subject to Part VII of that Act, that Act applies in relation to an injury sustained, a disease contracted or an aggravation acceleration or recurrence of a disease suffered by an employee before the proclaimed date, as it applies in relation to an injury sustained or a disease contracted or an aggravation acceleration or a recurrence of a disease suffered by an employee on or after that date. The provisions of this sub-section are, so far as they speak, effective to render the Commonwealth liable to pay compensation for an injury pursuant to sub-section 27 (1) of the 1971 Act whether the injury were sustained before or after the 1971 Act came into operation. But sub-section 104 (2) provides that sub-section 104 (1) does not entitle a person to receive compensation in respect of an injury sustained before the proclaimed date, or in respect of a disease, or an aggravation acceleration or recurrence of a disease symptoms of which first became apparent before that date if compensation was not payable in jrespect of that injury that disease, or that aggravation acceleration or recurrence under the Commonwealth Employees! Compensation Act 1930 or that Act as amended, as in force at the time when the injury was sustained or symptoms of the disease or of the aggravation acceleration or recurrence first became apparent. According to s.5(1)of the Act of 1971 injury means any physical or mental injury and includes the aggravation acceleration or recurrence of any physical injury but subject to s. 29 of the Act does not include a disease or the aggravation acceleration or recurrence of a disease. Section 29 provides that where the employee contracts a disease or suffers an aggravation acceleration or recurrence of a disease and any employment of the employee was a contributing factor to the contraction of the disease or to the aggravation acceleration or recurrence whether or not the disease was contracted or the aggravation acceleration or recurrence was suffered in the course of that employment, then if the partial or total incapacity for work results from the disease or from the aggravation acceleration or recurrence of the disease, for the purposes of the Act, unless the contrary intention appears the contraction of the disease or the aggravation acceleration or recurrence as the case may be shall be deemed to be a personal injury to the employee arising out of the employment of the employee by the Commonwealth and the date | 'of the incapacity shall be deemed to be the date of the injury. The determination of 1972 appears to have proceeded on the view that aggravation of the appellant's alleged condition of chronic paranoid hypochondria could properly be regarded as an injury as defined in s. 9 of the Commonwealth Employees! Compensation Act 1950 and compensible provided it was caused by accident, and nonetheless so if it was a condition supervening upon a physical injury. It does not appear whether the Delegate regarded the condition of chronic paranoid hypochondria as an injury in itself or as a condition supervening upon a physical injury. As was said by Windeyer, J. in Federal Broom Co. Pty. Ltd, v. Semlitch (1964) 110 C.L.R. 626 at 642 - "It has, of course, been common in workers' compensation cases to treat as an incapacity resulting from a physical ingury the total disability that follows from- it whether it be attributable only to the anatomical damage or to associated psychological and neurasthenic factors. The applicant's case might therefore have been put as follows. A minor bodily ingury suffered by the applicant, a person of unstable mentality, had serious psychological consequences; and thus it resulted in incapacity for work. So put, the case would not depend upon the statutory provisions concerning disease but on the general word 'ingury' ". Before the Tribunal the case made for the appellant was that the condition complained of was a condition supervening | 10. upon a physical injury. yiew that the effect of s. 104 of the Act of 1971 was that | compensation was only payable if the conditions of Commonwealth It is apparent that the Delegate proceeded on the liability prescribed by the 1930 Act were established by the appellant. In other words, the provisions of s. 27 and s. 29 of the Act of 1971 eliminating the requirement that the ingury be by accident, and expanding the definition of disease were irrelevant and the appellant carried the onus of proving a mental injury by accident. Whether this be so or not must be at least a matter of doubt. The circumstances do seem to have required attention to the possibility that the appellant's case was really referable to s. 27 of the 1971 Act in which event the appellant's case should have been considered according to the principles expressed in the High Court in Federal Broom Co. Pty. Ltd. v. Semlitch (supra). In that event proof of accident would not have been required as a condition of Commonwealth liability and it would have been for the Commonwealth to prove that under the Act of 1930 compensation would not have been payable. This would have been of importance because neither the Delegate nor the Tribunal made a finding that aggravation of the appellant's mental disorder was not caused by accident on 20th February 1968. However, when Mr. Stott opened the appeal to the Tribunal referring to the condition of chronic paranoid 11. hypochondria he said - | understood by the Tribunal whose reasons for judgment commence "The only ground of appeal is on the basis that the Delegate ought to have found that the condition was the result of personal injury by accident. We are not relying on any of the disease provisions, 1t being an old Act claim." : The appeal was fought on this basis and was so with the statement - "He (the appellant) claims compensation for a condition of chronic paranoid hypochondria which he claims results from an injury to his hand at work on 20th February 1968." The Tribunal proceeded on the basis that aggravation or acceleration of the appellant's pre-existing condition of hypochondria came within the definition of injury contained in s. 4 of the Act and that if that injury was caused by accident arising out of or in the course of his employment by the Commonwealth it was compensible in accordance with s. 9 of that Act. The Tribunal addressed himself to two issues stated a-. follows - (i) (ii) whether the injuries to the hand caused the present psychriatic problem; whether an injury to and operations to the ball of the appellant's left hand, which it is said caused or accelerated the mental problem, arose out of the accident. | 12. | The first issue was considered on the basis that 'on 20th February 1968 the appellant's ingury affected not only the little finger but also the ball of the thumb, the rthenar region. On that basis a number of witnesses gave evidence of the probable effect of such an ingury and its sequelae, namely supervening pain and two surgical operations upon the appellant's already existing morbid condition of anxiety and depression. On this issue the Tribunal's finding was as follows ~ "tI am not satisfied on the evidence of the claimant's mental condition prior to the accident in February 1968 that this accident made any significant change or accelerated or aggravated his long standing mental condition." The appellant contends that this decision is against the evidence which he says was all the other way. It is contended that the only finding open on the evidence was that the Tribunal was so satisfied. The witnesses who gave specialist psychiatric evidence on the point at the hearing were Dr. Kornan, Dr. Barnes, Dr. McCloskey and Dr. Sinclair. Dr. Kornan had examined the appellant in November 1972. He stated that he considered there was a relationship between the appellant's condition at that stage and the injury to his hand in February 1968. His evidence contained the following passages - 13. "Doctor, did the ingury to the hand cause or precipitate jany mental conditzon? -- Yes, I think we have here a man who was vulnerable but who would have in the absence of 'the hand injury been able to continue working. I think 'it is true to say that I am not sure that he would have lgot to 65, because with his sort of basic personality 'problems you often don't get through the whole working career, but I think he would have kept going certainly for a few years. I think what the hand injury did, and certainly the hand operation, was convince him that he was right and that secondly that what ever doctors told hin, there was a considerable doubt about. The hand effectively stopped him from working at least those extra years. Doctor you say that the incident in February 1968 caused some, perhaps I am using my own words — but dramatic change for the worse in this man's mental condition. Is that the way you put it, or am I mis-stating you? -- Yes, I think that is so. I saw him some three years later and I am not certain as to whether that dramatic change occurred quickly or whether it occurred over a period of a few months; but I think what it did do was start off this brooding and this cancer phobia in a significant way. Would it surprise you to hear that this man had had a cancer phobia even before this incident? Or say - perhaps I should put it in another term- that he had been worried about cancer even before this ancident? -- No, it wouldn't surprise me. I think this man ~- and the history is suggestive of this - that he was really a very vulnerable person. That he was emotionally easily disturbed and easily upset and had his significant personality problems for many years. You say the incident of February 1968 in fact accelerated a continuing mental illness; would that be a fair way of putting 1t? -- You could put it several ways. I think it certainly aggravated whatever was there. It accelerated the onset of probably what was an inevitable total decline. I think the worrying aspect was that he was subsequently proved right. Evidently some sort of neuro-vascular bundle was removed and obviously that was causing him some pain of some description. Now, maybe in a normal person they would have been able to shrug that off, although he was in a job as a mail officer where they may have probably been more use of his hands than perhaps I would have had. There probably was some continuing pain; in a vulnerable person that was enough to really worsen him, plus the fact that with this cancer fear he was now probably convinced that well, if something could grow perhaps a cancer could grow, and this in a vulnerable person is enough to make them much worse. I think it is akin to - if you like - a woman who bumps her chest and then afterwards says, 'You know, I'm sure that is going to give me cancer!', then has a breast operation for a lump which is perhaps non-malignant, but I think afterwards, is still going to be very worried and anxious. Now if she has been already 14, an unstable person beforehand, that is enough to really make her very disturbed." Dr. Barnes a psychiatrist examined the appellant in August 1970 and in March 1972 and in June 1977. Speaking with reference to August 1970 he said that the appellant - "explained his position to me in great detail and it would ' be impossible to record all his remarks as there was a great deal of content in his conversation. I regarded him as a , person whose prognosis or outlook as far as a depressive illness was concerned, as being poor. He is, in my view, still suffering from a depressive condition which is fFelated to hysterical' conversion reaction. I couldn't account positively for the physical findings but the basic situation is as I have said one of a conversion state. This condition is usually manifested, in his case, manifested by symptoms affecting the injured area and also the area which of course has been subjected to operation. But basically his problems arise from the underlying depression of his condition. - I formed a view that his condition, as I did before, was still . basically or significally, arose on the basis of aggravation and/or acceleration in a person who may well at least on the balance, be quite predisposed for reasons already stated in other reports, to develop a nervous condition. In other words, a personality which was prone to develop this sort of problem with this type of stress and injury, or any injury for that matter." , His evidence continued as follows - "Doctor, given that predisposing personality, what 1s your view of the part played by the injury to the hand on 20 February 1968 and the subsequent treatment of that injury? -- Well, I would regard the initial injury to the hand as being what one might call the precipitating or aggravating factor. I think that the background to develop this sort of condition of course was set and that injury which was unusual and I believe unusually painful, did start a train of events leading to a more frank depressive condition or conversion state as I have outlined. The fact that he had operations, I think, further compounded the felony so to speak, that he expected relief following surgery, which didn't come. Although, as I have stated, after the last operation, he did obtain some relief. Further, also, he was extremely disturbed and anxious by the suggestion at one stage when he was operated on by Mr. Hooper I 15. ~~ think, that this condition may have been malignant. Therefore, I think this series of trauma, the original trauma is added to by the subsequent trauma of the operation. And if he is a man who has had a number of injuries over a pe.iod of ten or eleven years, each individual injury or incident or what have you, would each contribute to the final state in which you saw him? -~ Yes, one can't divorce those contributory factors from the picture as I saw it. You are not able to say how much of this man's inability to work, when you saw him, was due to the incident in February 1968? -— How much was due to other factors, either factors prior to then or factors after then? -—- I think it's impossible to put that in terms of a quantitive percentage. All I could say was that anjury was highly significant for him, particularly as it was subject to later surgery. From a psychological point of view." Two reports by Dr. McCloskey,one dated 12th November 1969 and another dated 4th May 1977 were admitted by consent. On 12th November 1969 Dr. McCloskey stated - "This patient has suffered a number of accidents in the P.M.G. and as a result, he is suffering from a gross anxiety state. Because of this anxiety state he is no longer fit for work. I consider this to be a permanent disability and I consider that the patient is suffering from a considerable disability. The patirent's most pressing complaint at the moment is of intense pain in his left hand which has been described as chordalgia pain, however I have never seen chordalgia apart from an amputation stump, and I see no evidence of this patient having had his hand amputated. Therefore, in my opinion he is not suffering from chordalgia, but a soft tissue injury to his left hand and an acute anxiety state. This patient is unfit for work, and I would agree that he is not fit for work due to his anxiety state, and I think that this anxiety state has been precipitated by the numerous accidents he has had during the course of his employment." In May 1977 he stated - "Therefore .......the patient has had a number of accidents including one to his left hand and as a result of all his accidents and the one to the left hand in particular, he is permanently unfit for work." | 16. De. Sinclair was called for the respondent. A report of Dr. Sinclair dated 29th October 1971 was admitted. The burden of its content is that the appellant was a paranoid individual more interested in the acceptance by others of his disability than even the disability itself. After noting that the appellant had had numerous injuries each of which was probably superficially non serious, the report states that the appellant ~ "has a gross phobic state ....... see cee n eens «has no insight and is preoccupied with the wish to have these inguries singly and in totality recognised as compensible injuries. With the exception of the meniscus I believe that not one of the injuries referred to, physically or i psychologically has left a compensible state of ' incapacity. The other conclusion that I arrived at is that the personality of this man 1s such that he will continue in his efforts to have his illness recognised and accepted as being the fault of someone else rather than as I believe arising from his own personality." The report concludes - "Paranoid individuals have their malady firmly imbedded in their personality. They are usually self centred, meticulous, rigid, humourless and given to projection. This form of projection is used in any situation where there has been an instance about which the sufferer can feel righteously indignant. With the present Worker's Compensation Legislation this offers a very good avenue for pursuing a sense of injury and for expressing righteous indignation." Dr. Sinclair's specific diagnosis of the appellant's condition was that he was a chronic paranoid hypochondriac. In his evidence to the Tribunal Dr. Sinclair said that the appellant was not a good candidate for trauma and would be likely to over react to it. He said that with a true hypochondriac there was frequently insomnia due to the 17. patient milling over his sympLous and Lhat Lhere is likely to be a complaint of pain as being present at all times and retained within the patient's consciousness at all times and that when describing those pains their language is extreme, of a theatrical type. He said that he considered the appellant unfit for work that involves the use of his body. Dr. Sinclair was asked by the Tribunal whether he agreed with Dr. Barnes that the ingury of February 1968 "was the aggravating factor which operated on his underlying condition". "There vas an interruption, and the Tribunal said, "I just asked you whether you think that the ingury in 1968 was such an aggravating factor and whether it had that effect of developing the psychological state to where it's gone — Would you agree with that as a proposition?" After further interruption the Tribunal said, "The particular point I am trying to ask you is whether you would agree with Dr. Barnes! description of the effect of the incident of 1968 had on his mental condition?", Dr. Sinclair said, "Yes, although I believe with a personality of this type any dramatic event would aggravate it. It's a bit like adding one more brick to a pyramid and any life situation that's an unhappy one, particularly a dramatic one would aggravate it. I don't believe that what was a fairly simple accident was in itself a sole aggravating factor." The Tribunal said "I think Dr. Kornan didn't seem to think the accident was so much as the two operations that followed from it and the fact that after the first operation the pain did not go away." Dr. Sinclair said, "I think an operation is a dramatic, tangible thing and ; any operation leaves a scar and 1s sure to elaborate the 18. psychological disorder in the patient's mind. The operation itself was relatively minor." In the reasons for judgment it is said that this evidence of Dr. Sinclair is accepted and it was treated by tne Tribunal as being in conflict with the view that the hand injury and the operations did materially aggravate the appellant's personality disorder. But whatever were the views of Dr. Sinclair as to the appellant's paranoia, on the issue}of the aggravating affect of trauma which was the critical point there was no conflact between Dr. Sinclair and the other witnesses. Dr. Sinclair confirmed the evidence of Dr. Barnes and expressed clear views as to the likely effect of a dramatic event along similar lines. So far as Dr. Sinclair questioned the evidence of Dr. Barnes, on the matter of the appellant's depression, it is to be observed that on this ' matter there is strong support for the observations of Dr. Barnes from Commonwealth sources. It is my view to misunderstand the evidence of Dr. Sinclair to gather from it as the Tribunal appears to have done, that it supports the contention that the accident of 20th May 1968 and its sequelae including the operations made no significant change and was not likely to aggravate or accelerate his long standing mental condition. If, in connection with all this, one refers to the words of Dr. Sullivan, the Commonwealth Medical Officer written . - wees - 19. in May 1969 when he decided the appellant must be dismissed, there is presented a most convincing picture of the state of the appellant, rightly or wrongly, but actually, obsessed and depressed by his hand injury. He said - "This man is in a tragic psychological condition, is introspective and has a fixation on various afflictions, including an unreasoning fear of cancer. He has some idea that doctors are keeping from him some dire ailment that afflicts him and they w111 not tell him. He is mainly preoccupied with a burning sensation of the thenar eminence of the left hand........and is wearing a glove on this hand, he actually recoils when one endeavours to palpate it, as if it is exquisitely tender and yet it is observed that when he arose from the couch, he put his full weight on this region to lift himself." Accordingly on this issue I am of opinion that the evidence is all one way to the effect that the hand injury and the operations materially aggravated the appellant's long standing condition. That was the only finding open on the first issue. I come now to the second issue as postulated by the Tribunal, namely whether an injury and operations to the ball of the appellant's left hand, which it is said caused or accelerated the mental problem, arose out of the accident. If, then,some injury to the appellant's hand and supervening pain and operations aggravated the appellant's personality disorder the question is whether that injury was initiated by what occurred in the incident in which some part or | 20. parts of the appellant's hand were injured on 20th February (1968. Two questions are wrapped up in this issue as stated. First, wes the ball of the hand injured on 20th February 1968 and second, if it was, were pain and operative treatment a consequence thereof. There is no real dispute that this second question should be resolved in the affirmative. The finding of the Tribunal on the first of these questions was that he was not satisfied that the ball of the hand did suffer ingury on 20th February 1968. The evidence of the appellant was very relevant. He was the person who really knew what part of his hand had been squashed in a material way in the accident of 20th February 1968. This was a critical question. If the only injury to the hand was to the little finger then the "link" between the accident of 20th February 1968 and the subsequent troubles in the thenar region could not be established. It was necessary that the value of the appellant's evidence should be carefully assessed with respect to the appellant's credibility and his capacity to remember the events of 20th February 1968. In this connection the Tribunal stated - "In this present unfortunate condition little weight can be attached to what the claimant said in evidence. Nevertheless, I should have expected some explanation from him as to how his complaint in December 1967 of a hot burning sensation in the palm of the left hand did, or me ; 21. : | did not, relate to the pazn which he subsequently ' claimed flowed from the accident in February. There is no doubt that he had a serious mental sickness before the ingury there is no doubt that ; he had a cancer phobia before the injury. I do ' not accept the claimant's denial of very frequent minor injuries before the accident in the face of @11 the other evidence. As Dr. Sullivan put in relation to the claimant's record of injuries — ae "You see there are many many. I would have to go through these. There's the right hand there, heel, right leg, the knees, the right mid finger, right eye, there is a finger here (not specified which one) ~ finger improving, painful pack, bruised muscles, brursed chest tow In the conduct of the case the respondent made no challenge to the evidence of the appellant that the thenar or ball of the thumb had been squashed in the accident. Indeed it was after the appellant had been re-examined that Counsel for the respondent sought leave to ask about the details of the accident, and when the appellant described it he said - "That's all I wanted to know Mr. Wurzel." It was after this, in the opening of the case for the respondent, that the following passage ensued - Mr. "May I say it's conceded that there was a hand injury. Wheeler: Perhaps it's not formally conceded that any other part of his hand, other than the little finger, was injured on that occasion, but it seems pretty clear that the evidence is that some other part of the hand was injured. The You say that it's pretty clear that some other parts Tribunal: of the hand were injured? Mr. Yes. T have no evidence that by and large could in Wheeler: any way impinge upon the evidence given. It may be that it would be convenient if the Tribunal made a formal finding in respect of whether there was a part of the hand injured other than the little finger. But that's not strictly part of the Tribunal's present functions in my submission. Even assuming the hand injury as is claimed by the applicant, which for the 22. ! purposes of the main argument, I wish to put to the Tribunal, can be assumed, there is no causative link in my submission between that and his present mental condition." Counsel for the respondent informed me that in his final address he withdrew the concession he had made. The matter proceeded as follows - Mr. "That concession was specifically withdrawn. It Wheeler: does not appear in transcript because it was at a time of final addresses, which were not reported, I think it proper to mention that, in case your Honour draws some conclusion from that, that Mr. Ballard had accepted a concession and then not relied upon a concession. His He did not rely upon it, anyway, did he? Honour: Mr. No, he did not rely upon it. Wheeler: His What happens if you make a concession like that? Honour: What was happening at p.57; that was early, was it? Mr. It was at a time before I had called any evidence. Wheeler: His You were calling Mr. Sullivan? You did not withdraw Honour: that until the addresses - you would be the first to go, I suppose? Mr. I am trying to recall at precisely what stage that Wheeler: occurred. I remember discussing it with my learned friend Mr. Stott, in the presence of the tribunal. His What did Mr. Stott have to say about that? Honour: Mr. I think he said he wanted to rely on any concessions Wheeler: JI had made. , His It is a little awkward, is it not, withdrawing a Honour: concession at the last moment in a case? If the case has gone ahead on a certain basis, how do you do that? Mr. Because, as I say, at a stage at which the appellant Wheeler: had concluded his evidence. It did not, in my submission. affect the evidence or the course of the further evidence in the case. 24, Mr. The transcript of the addresses could be Wheeler: obtained, but it was not taken down at all; it was not recorded. His Not recorded? Honour: His I wonder if the tape is still in existence? Honour: Mr. I will have enquiries made but I have a Wheeler: recollection of the tape being switched off; that is why I did not think it was recorded. His If the tape comes to light, you will let me Honour: know? Mr. Certainly." Wheeler: In the absence of further information I assume the tape is not available. This concession is not referred to in the reasons for gudgment of the Tribunal. This concession could not properly be withdrawn when it was, without the consent of the appellant, or at least on appropriate conditions. The conduct of the appellant's case might have been different had it not been made. It was at the very least an admission made deliberately with full knowledge and as such of much importance. It is to be observed that although there was plenty of evidence that the appellant had a long standing personality disorder of anxiety, depression, probably hypochondria and paranoia, there is nothing to indicate that the appellant was a conscious liar or that he was incapable of remembering events of significance. Certainly in evaluating' evidence of the His Honour: Mr. Wheeler: His Honour: Mr. Wheeler: His Honour: Mr. Wheeler: His Honour: Mr. Wheeler: His Honour: Mr. Wheeler: His Honour: 23. Cross-examination might have been different. It just shows you, everybody says: I do not want counsel's address; you nearly always do. The situation is clarified by the section at the top of the next page. I do not say it is completely clarified, but ~- 'T have no evidence that hy and large...... (reads) ab eecnes and I emphasise the word illness.! Might I say in relation to the question you raised about that concession, all I can say is it was withdrawn. I am unsure whether it was in final addresses, where I thought it was and I assumed that because the final addresses were not taken and the other comments of Mr. Stott and myself do not appear on the transcript. a do recollect that although I am not sure it was not that afternoon. It seemed more likely that it was in the addresses because I gather 1t was not in the_other parts of the transcript. No, it certainly does not appear. I do not know that there 1s any more I can help your Honour with. Naturally, I accept what you say but I am just wondering if you can go around doing that kind of thing. What does Mr. Wurzel say? He says: That is no good to me; they conceded this. My counsel proceeded on the basis that 1t was conceded. Maght he not ask Dr. Sullivan a whole lot of questions he did not ask him? All I can say is to that is there was no such submission made to the tribunal. Yes, I see. You cannot remember quite what Mr. Stott said, but he did not say that or anything like that? That is so. As far as I can remember, whenever it was raised I think the tribunal raised the question and I said that I, in so far as I had made a concession, sought to withdraw it and I think the tribunal then said: What do you say, Mr. Stott. Mr. Stott said: I seek to rely on any concessions that are made. As far as I remember that was what happened and I believe I am accurate that that is as far as the dicussion went. He did not accept it then on that basis. He says: All right, the concession was made; I seek to rely on it. A curious situation. Well, that is your recollection of it, is it, that it proceeded along those lines? | 25, serverity of pain and synptoms, the statements of the appellant would require careful scrutiny because of his paranoia. As Dr. Sinclair said, reaction to trauma would probably be over- jreaction. But I find nothing in the evidence to justify a finding that on the question of what part of his hand was squashed on 20th February 1968 the evidence of the appellant was to be depreciated on the basis that however rational or satisfactory or credible it might otherwise appear, it was necessarily to be treated as of little weight because of his present unfortunate condition. The task of the Tribunal was to consider it without classifying it as necessarily of little weight, not, of course, ignoring the appellant's personality and illness but valuing the evidence by reference to all appropriate considerations of demeanour, rationality, sincerity, memory and the like. In this appeal the appellant conducted his own case and his personality necessarily obtruded. But he certainly exhibited a good memory. If his present condition is anything like that of June 1977 I would certainly not think that his evidence of past events was necessarily of little value. Having indicated that the evidence of the appellant must necessarily be of little weight, the Tribunal attached importance to the fact that the appellant failed to explain how a complaint by him in December 1967 of a hot burning sensation in the palm of the left hand did, or did not, relate ee to the pain which he subsequently claimed followed the accident 1n February. As to this the Tribunal said - "Nevertheless, I would have expected some explanation on this matter from him." "Neverthcless" apparently means "despite his evidence being of little weight." This seems to be put to the appellant's credit. If so, it is inapt and operates unfairly because the omission to Zlve an explanation, if there were one, would result not from any initiative of the appellant but depended on the questions he was asked by his ow counsel, counsel for the respondent and the Tribunal. In any event the matter was not one for explanation but for evidence of the relevant facts. On the point of substance it is to be observed that the appellant's case was that his thenar was "injured on 20th February 1968. The thenar is quite distinct from the palm area of the hand and if it was desired to argue that some old injury in the palm caused the pains in the thenar then it was for the party making that case to call the evidence to support it. This aspect of the matter is discussed hereafter. There is no support in the evidence for the suggestion that the hot burning sensation in the palm reported by the appellant in December 1967 and which had apparently not recurred, was likely to have caused the pains and disability ~ in the thenar region which came on after 20th February 1968. It would seem also that in relation to the appellant's credibility the Tribunal attached importance to his denial that there had been very frequent minor injuries before the accident, But the fact is that the appellant made no such denial. He certainly said that he thought 80 visits to first aid was a gross exaggeration, but that is quite a different thing. He gave evidence in chief that he has had many injuries, some serious and others of a trivial nature, and in cross-examination he agreed he had suffered "many many" injuries. It is clear, therefore, that the credibility of the appellant was discounted on grounds which cannot be supported. If those grounds are ignored and the rest of the evidence is regarded there is much support for the view that the appellant must have hurt his hand in the thenar region on 20th February 1968. Really the only matter of consequence which may be said to conflict with the appellant's evidence on this point is that it 1s said in the reasons for judgment of the Tribunal that when the appellant reported to Dr. Sullivan on 20th February 1968 he did not mention that the thenar region was involved. It is to be observed, however, that Dr. Sullivan did not say this specifically. It is perhaps reasonable to infer it but it was not said. The respondent did not lead such evidence from Dr. Sullivan. The respondent did not cross-examine the appellant ;: on that poant, and the appellant's counsel did not cross—examine Dr. Sullivan on it. The inference, if it was involved in what the doctor had written down in 1968, was, at that stage of the case, unimportant in view of the respondent's concession as to the injury to other parts of the hand. Had it been otherwise r . 28. the appellant should have been given an opportunity to explain. And of course whether the inference from what the doctor had written down is sound or not it has to be considered in the light of the inherent probabilities and other evidence. It is clear that in the early stages, the injury to the little finger was giving the appellant most worry, and the appellant's over-reaction to his little finger was there in evidence. It is quite likely from what appears to have been the nature of the actual injury suffered by the appellant to the rest of the hand that its effects at that time were minor compared with the little finger. It was quite likely that what was engrossing Dr. Sullivan on that day was irritation at an x-ray of that ingury being demanded, and what was engrossing the appellant on that day was his fear that there was a bone injury to his little finger. I look therefore at the other evidence. On the evidence it is a proper inference that the appellant's hand was in good condition on 20th February 1968 and that on that day he squashed the little finger. Whether he did some injury to the thenar region is the issue. His evidence is that he reported the incident to first aid and to his overseer forthwith. No : evidence as called from first aid or the overseer to indicate what were the precise terms of the report. No suggestion was put 7 to the appellant that this report to first aid or the overseer was in respect of injury to the little finger only. The 27th February 1968 was the day on which the appellant sought x-ray from Dr. Sullivan. Whatever was said that day it is clear that 29. ~ on 15th March 1968 the appellant consulted Dr. Muschin and stated he had hurt the whole of the knuckle area of the hand and the ball of the hand. Dr. Muschin said that it had to do with the movement of the thumb, he said that there was pain and tenderness in that region right across the back of the hand and a certain amount of residual bruising. On 18th March Dr. Muschin referred the appellant to Dr. Rowlands who conducted an x-ray first of all of the little finger and shortly after of the whole hand. Nothing was revealed but the appellant st1i11 contanued to consult Dr. Muschin who certified on 9th September 1968 that he was having "pains in the left hand which he injured at work in February last and that he needed a complete rest and general treatment for three months from now." in September 1968 Dr. Matthews of the department reported that the appellant had many complaints and says the worst one at present "is pain and swelling of the left hand." Swelling was something Dr. Matthews could see. In December 1968 the same officer reported that the appellant had his left arm put in plaster about a month before and that operation for carpel tunnel was recommended but his mental condition didn't permit it. In April 1969 Dr. Thrift found that the appellant's principal complaint was that in the left hand and wrists which the appellant stated he had squashed in a door just over a year previously. He thought there had been a contusion in the muscle of the left thumb where there was tenderness. He considered the appellant as one having a low threshhold of pain. He said 30. however, that a crush injury between obgects of considerable mass can result in a very painful condition frequently out of all proportion to the original injury where there are nerves that are contused. Any increase in mass such as these small lumps can result in a compression of the median nerve. In April 1969 the appellant told him that he had a burning pain, not constant, particularly at night. Dr. Thrift said that he felt that the complaints that the appellant made of pain and disability were genuine. In May 1969 Dr. Thrift acgepted that the appellant was still having constant pain in his left thumb, In May 1969 Dr. Sullivan found the appellant complaining of a burning sensation in the thenar eminence of the left hand. In September 1969 Dr. Muschin referred the appellant to Mr. Hooper. So far as Mr. Hooper 1s concerned it is well to take into account the comments of Dr. Aberdeen. He said - "Well I think Mr. Hooper is a very wise and learned man and I am quite sure he wouldn't need the records of the Postmaster-General's Department to sum Mr. Wurzel up." Mr. Hooper took the appellant's thenar hand condition seriously. He examined the appellant's hand and found tenderness in the region of the ball of the thumb and a slight suggestion of a small lump in that region and slight swelling at the ball of the thumb. In December 1969 an electro-myogram was carried out 31. disclosing what Mr. Hooper Lhoughl was a glomus Lumour. At the operation in 1971 the lump thought to be a glomus tumour was not found. However, Mr. Hooper divided a nerve to reduce pain in the area. At the second operation in January 1973 Mr. Hooper found what he had thought in December 1969 to be the glomus tumour. It was not a glomus tumour but was scar tissue which had become a painful nodule. Scar tissue is the result of haemorrhage and Mr. Hooper's opinion is that the appellant had had a haemorrhage into the ball of the thumb and that this formed the scar and involved nerve ends and became a painful nodule. The evidence of Mr. Hooper that the scar tissue was there before the operation of 1971 is quite clear. As he said in cross-exaimination ~ "He did not have a glomus tumour, but he did have something.........namely the scar tissue." The reasons for judgment of the Tribunal disclose that considerable attention was given to the question whether there was a link between the injury to the little finger and the pains subsequently suffered by the appellant in the thenar area. The question appears to have been posed on the basis that the only part of the hand involved in the incident of 20th February 1968 was the little finger. The Tribunal decided that there was no evidence of any such link. In this he was undoubtedly right. As to such a possibility, Dr. Aberdeen said " In no way. " The appellant's case depended therefore on his establishing that the thenar part of the hand was injured when the hand was caught between the door and the trolley on 20th 32. February 1968. If one forgets the appellant's evidence on this point the evidence is that on 15th March 1968 the hand was found to be injured in the manner described by Dr. Muschin. What he found was not only what the appellant told him about injury of the thenar region on 20th February 1968 but residual bruising which he would see apparently right across the back of the hand, that the symptoms observed on 18th March jwere consistent with continuing pain and tenderness in the] thenar area in later examinations. In September 1968 Dr. Matthews observed swelling in the left hand. In September 1968 Dr. Muschin certified pains in the left hand. In April 1969 Dr. Thrift formed the opinion there had been a contusion in the area which would be consistent with a crushing ingury. In September 1969 Mr. Hooper detected the small lump which turned out to be scar tissue. In these circumstances the question arose as to the probable cause of the continuing pains in the thenar region. There was the incident of 20th February 1968 which might have caused it. There was in the appellant's case no evidence of any other probable cause. However ,the Tribunal was of opinion that the pains might have been related to and apparently a development of an ingury to the middle finger in respect of which it appeared that in December 1967 the appellant had suffered a burning sensation in some unspecified portion of the palm of the left hand. As to this the Tribunal said - 33. "IT am not satisfied that the pain to the ' ball of the hand was not the same pain as that complained of two months before the accident. I make no finding as to this. It does not really matter whether this is so or whether it ceveloped after the accident." The meaning of this is not clear, but it certainly appears that in his consideration of the possibilities the Tribunal took into account what was really a finding on his part that the evidence, while not establishing that tHe December 1967 injury was the cause of the later pains{in the thenar area, nevertheless pointed with significant persuasive force to the December 1967 injury as the likely source of the subsequent thenar troubles. If it were that the thenar pains were a development of recurrence or aggravation of the injury of December 1967 which produced a hot burning sensation, a question would immediately arise as to whether the recurrence or aggravation was not caused by the hand injury of 20th February 1968. But ignoring this question, the situation would be that if the evidence concerning the December 1967 condition did point significantly to that condition as a reasonable explanation of the thenar pains, then in the absence of evidence to explain that hypothesis away, there would remain a doubt on the balance of probabilities as to which of two competing possible causes was ; the real one. Of course it was necessary for the appellant to establish on the balance of probabilities that the pains were +e ah 34. the result of injury on 20th February 1968, and to do that \ iby reference to the whole of the evidence as it stood at the end of the hearing. At that stage there had to be taken into account what Barwick, C.J. said in Purkess v. Crittenden, 114 C.L.R. 168 that "evidence ..... which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects....their future develop- ment were likely to be."When such evidence has been given then the party against whom it operates will neglect to call explanatory or contradictory evidence at his peril. But the burden of calling such explanatory or contradictory evidence does not arise when the most than can be said of the existence and effect of any such alleged pre- existing condition is that it is merely a suggestion thereof. And that of course is more than can be said in this case. The fact that there was a burning sensation in the palm of the hand in some unspecified place and of some unspecified intensity and ; apparently relating in some way to the middle finger suggests nothing about pains in the thenar region where there was bleeding causing scar tissue in that area, even if the pains in that area were at some stage described as a burning sensation. The appellant was asked in cross-examination whether in December 1967 he attended first aid complaining about discomfort in the middle finger of the left hand and in the palm of the hand. He answered, "No, I complained with regard to the middle finger which had been lanced."" He was asked nothing more about it. | 35. - - In the respondent's files there appeared an entry "December 1967, discomfort left middle finger, also palm of the i1eft hand, hot burning sensation. Dressing applied to left fase finger." Dr. Sullivan who was giving evidence when the entry was read, was asked nothing about it and said nothing about it. It does not seem to have been referred to elsewhere in the evidence. As it stands it is not even suggested that the injury referred to could have developed into the injury in the thenar region. It 1s not described with reasonable precision and there is nothing to suggest that it had the potential for any further development let alone to have caused the bleeding which caused the scar tissue in the thenar. And of course as a matter of probability it is impossible to think that one of the large party of competent medical men including surgeons would not have explained the symptom of the 1967 injury as relevant if it had any relevance and one would have thought that the respondent with all the knowledge it had about the appellant's hand would have done something about it by way of evidence. It was not open for the Tribunal, acting reasonably, to find that that injury was to be reasonably regarded as an alternative cause of the thenar pains which came on early in 1968 and persisted through ensuing years. In directing himself that there was some burden on the appellant to call evidence on the matter, the Tribunal was in error as a matter of law. This is an important matter in this case because if the 36. Tribunal had not considered that it was for the appellant to call evidence about the nature and effect of the alleged prevossseins condition some difficulty would have been jexperienced in explaining the facts otherwise than by reference to the events of 20th February 1968. The outstanding facts are —- (i) that the appellant complained about pain in the thenar region at least on 15th March 1968 and bruising was actually observed by Dr. Muschin which indicated that an extensive area of the hand had been involved; (ii) that Dr. Muschin attended the appellant on a number of occasions between 15th March 1968 until about 1974 and was able to say to the Tribunal, "I know that I've got a physical evidence of an injury to his hand." It is clear he was not talking about the little finger; (iii) that there is medical evidence of a Commonwealth doctor of swelling in the area in September 1968; (iv) that in April 1969 Dr. Thrift found conditions which led him to conlude that there had been a contusion in the area; (v) that in 1969 Mr. Hooper found a suggestion of a lump in the area which he was able to identify at his 1973 operation as being scar tissue; (vi) that it was the opinion of Mr. Hooper that the appellant must have had ahaemorrhage into the ball of the thumb and that this formed a scar and ' involved nerve ends; (vii) that when there is bruising blood escapes and may form fibrous tissue and the first onset of pain due to bleeding may not be for months; (viii) there is no suggestion that the appellant suffered any other hand injury after 20th February 1968; (ix) the type of event which occurred on 20th February 1968 was such that an injury to the soft tissue thenar area would be quite within the bounds of likelihood. It was for the Tribunal to make a finding on the balance cf probabilities. If he had approached the matterfully appreciating the effects of the evidence of the witnesses, especially that of Dr. Muschin and Mr. Hooper, untroubled about the possible effects of the December 1967 injury, without writing down the appellant's evidence as necessarily of little weight, and as subject to comments going to its credibility as discussed above, I fail to see how he could have failed to be satisfied on the probabilities that there was an injury of the thenar region. In my opinion that conclusion was the only one open on the evidence. I have spoken above on the basis that the evidence of Dr. Muschin and Mr. Hooper and the other medical witnesses is credible and I think that this was not called 38. ; a into question by the Tribunal. That does not mean that their evidence should be acted upon without critical examination. Mr. Hooper's evidence at the trial in the Supreme Court was admitted by consent of both parties. The material ' portion which I have emphasised above was to be understood only on a close examination of his testimony. But when understood, it was quite unequivocal on the critical point about the existence in 1969 of what turned out to be scar tissue. Dr, Aberdeen'ts evidence at the trial was also admitted by consent. I found in it nothing to qualify any of the "facts" which I have set out above. In reading his evidence it has to be remembered that in portions of his evidence he was speaking on assumptions wrongly made by Counsel asking the questions, and in ignorance of the unambiguous evidence of Mr. Hooper that the scar tissue, which he found in 1973 was the lump which he had detected in 1969. It is this same item of . evidence which is not mentioned in the reasons for judgment of the Tribunal. Its significance 1s of course very great. As appears from the foregoing it 1s my opinion that the conclusion referred to above flows from the evidence without | reference to the concession which was made by the respondent as to the parts of the hand which were injured in the incident of 20th February 1968. Even if that concession is to be treated as no more than an admission it materially supports the factual conclusion so reached. By reason of the foregoing I am satisfied that it was established before the Tribunal that the condition of chronic paranoid hypochondria suffered by the appellant was aggravated and accelerated by the injury to the appellant's hand by accident arising out of and in the course of the appellant'ts employment with the respondent on 20th February 1968 and that as a result thereof he was incapacitated for employment and is entitled to compensation in respect of such incapacity. Accordingly the appeal is allowed and the question of quantum of compensation remains. I therefore give liberty to the parties to call evidence on this issue as they may be advised and adjourn the matter to a date to be fixed. Sui They $ \ TA Lituneune ¥ (Re(h {97 eo