JUDGMENT No. 4.867. 28. CATCHWORDS ADMINISTRATIVE APPEALS TRIBUNAL - appeal from decision setting aside determination of Commissioner for Employee's Compensation - whether stress at work aggravated the respondent's coronary artery disease - whether Commonwealth v. Beattie correctly decided - the distinction between the pathology and symptoms of a disease ~ the basis on which a decision of the Administrative Appeals Tribunal may be set aside - the function of the Court - whether the respondent suffered from a compensable incapacity. Compensation (Commonwealth Government Employees) Act 1971 Tce) = 88.26, 29 Administrative Appeals Tribunal Act 1975 (Cth) - ss.43,44 Commonwealth v. Beattie (1981) 53 F.L.R. 191 Federal Broom Company Pty Limited v. Semlitch (1964) 110 C.L.R. 626 a TT Canberra Abattoir Py Limited v. Asioty (ACT G18 of 1987, elivere Apr Waterford v. The Commonwealth (1987) 71 A.L.R. 673 Repatriation Commission v. Moss (1982) 40 A.L.R. 553 COMMONWEALTH BANKING CORPORATION v. RAYMOND WILLIAM PERCIVAL No. NSW G ° Davies, Sheppard and Ryan JJ 14 July 1988 Canberra IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G448 of 1987 ) ) GENERAL DIVISION ON APPEAL from the General Administrative Division of the Administrative Appeals Tribunal BETWEEN: COMMONWEALTH BANKING CORPORATION (Appellant) AND RAYMOND WILLIAM PERCIVAL (Respondent ) Coram: Davies, Sheppard and Ryan JJ Date: 14 July 1988 Place: Canberra MINUTES OF ORDER THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The decision under appeal be set aside and the matter be remitted to the Administrative Appeals Tribunal to be heard and decided again with or without the hearing of further evidence. 3. Leave is granted to apply with respect to costs. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G448 of 1987 GENERAL DIVISION ON APPEAL from the General Administrative Division of the Administrative Appeals Tribunal BETWEEN: COMMONWEALTH BANKING CORPORATION =—™~ (Appellant) AND RAYMOND WILLIAM PERCIVAL (Respondent) Coram: Davies, Sheppard and Ryan JJ Date: 14 July 1988 Place: Canberra REASONS FOR JUDGMENT THE COURT: This is an appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") given on 18 August 1987 which set aside a determination of a delegate of the Commissioner for Employees' Compensation made on 23 December 1985 and remitted the matter to the Commissioner with the direction that compensation be granted. The respondent, Raymond William Percival, was an employee of the applicant, Commonwealth Banking Corporation ("the Bank"), and in 1978 suffered a myocardial infarction at home. In 1977 he had another infarction followed by a by-pass operation. In 1982 the by-pass became blocked and the appellant was absent from work for some time. He -Zz- returned to work later in 1982 and retired on the ground of ill-health in 1984. The medical evidence before the Tribunal was conflicting. The view of Dr P. Fletcher, a medical witness called on behalf of the Bank, as recited by the Tribunal was that:- ",.. I would not expect, for someone who has had three heart attacks and heart failure, that his underlying cardiac condition will be changed by retirement. The amount of the symptoms he gets may well be improved, because he will be resting more, and less stressed, in the broadest sense of the word, but I do not think the underlying cardiac condition, which is what determines his prognosis, is changed by retirement". The Tribunal, after quoting the passage; went on to say:- "Dr Fletcher was ... of the view that the stresses had no part in the development of the underlying pathology of the respondent's coronary artery disease." The Tribunal then noted:- "Dr Fletcher's view was not shared by the respondent's doctors. Dr Haneman thought that the real question was whether the stresses of work had damaged the arteries and instigated the by-pass." and referred, amongst other evidence, to that of Dr E. Schiller, of which the Tribunal said:- "De Schiller thought that the respondent's work as a bank manager interacting with his behaviour and personality contributed to the development of the coronary heart disease and the various episodes of the disease between 1973 and his retirement in 1984. The anxiety and apprehension after the two bank hold-ups probably contributed to the progression of his disease. The respondent's heart condition restricted him to sedentary or light work; he would be advised against undertaking work involving time pressures, deadlines, heavy responsibilities and large work loads and he could not go back to his previous work." After reviewing the medical and other relevant evidence the Tribunal said in paragraph 14:- "Considering all the medical evidence we are not satisfied that the basic pathology of the respondent's coronary artery disease was aggravated or accelerated by stress at work. However as to stress bringing on the symptoms Dr Fletcher said:-— 'Now, what I am asking you, is given the fact that the applicant's (sic) heart was - as we do not know it was until you have seen these documents — do you think that going back to work between '82 and '84 would have aggravated the symptoms so as to make it difficult for him to conduct - to do his normal work as a bank manager of a fairly small branch?---It seems from all the evidence that has been presented that it probably did.' We accept stress at work brought on symptoms at the time. We so find." Thus, the controversy as to whether the "basic pathology" of the respondent's coronary artery disease had been aggravated or accelerated by stress at work was resolved by the Tribunal adversely to Mr Percival. However, the Tribunal regarded the symptoms of the disease as something distinct from and additional to the "basic pathology" thereof and went on to find that stress at work brought on symptoms at the time. The Tribunal quoted the following passage from the joint judgment of Evatt and Sheppard JJ in Commonwealth v Beattie (1981) 53 F.L.R. 191 at 201:- "It does not follow in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his injury. A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation. In such a case any incapacity for work arises only by reason of the pre-existing injury. The evidence earlier recounted shows this to be a very different type of case. Thus each case must depend upon its own facts. For present purposes it is enough to say that pain brought on by work activity may constitute an aggravation of a pre-existing injury, even though no pathological change takes place." The Tribunal then said:- "We accept on these facts that the aggravation of the symptoms was a factor which led to the respondent's being retired thereby causing incapacity to work. We so find." The Tribunal next proceeded to consider whether total or partial incapacity for work resulted from the aggravation of the symptoms at the time of work. In the light of all the evidence on the question of capacity, the Tribunal concluded that:- "On no view of these facts can the respondent be regarded as being able to do his former job as branch manager at Kogarah Bay; he 2s therefore partially incapacitated." It was then necessary to consider whether Mr Percival should be deemed to be totally incapacitated for work under s.26 of the Compensation (Commonwealth Government Employees) Act 1971 (Cth)("the Act"), which was in force at the date of his retirement but has since been repealed. After reviewing the evidence relevant to that issue the Tribunal concluded: - "We have referred to the regular inspection reports (paragraph 17 above). They are also relevant as indicating that the respondent was an excellent, well motivated bank officer. That fact is, we think, relevant together with Dr Haneman's evidence, which we accept in preference to that of Dr Kendall, to establish that the respondent is fitted only for employment of a kind that is not commonly available and employment of that kind is not' reasonably available to him. Accordingly we deem the respondent totally incapacitated pursuant to the provisions of section 26 of the Act." The Tribunal determined that the matter should be remitted to the Commissioner with the following directions:- "1. that the respondent suffered a recurrence of his angina to which his employment was a contributing factor; 2. the applicant is partially incapacitated thereby and deemed totally incapacitated under section 26 of the Act; 3. the applicant is therefore entitled to compensation for total incapacity under section 45 of the Act and to medical expenses under section 37 of the Act;" By an amendment to its notice of appeal made by leave during the course of the hearing, the Bank has identified the following questions of law as arising from the Tribunal's decision:- "1. Whether the findings made by the Tribunal are capable, as a matter of law, of supporting a conclusion that incapacity of the Respondent to work resulted from aggravation acceleration or recurrence of the Respondent's coronary artery disease contributed to by the Respondent's employment. 2. Whether the Tribunal erred in law in paragraph 14 in holding that, because stress at work brought on symptoms of the Respondent's coronary artery disease at the time of the stress but without making any finding that those symptoms continued after cessation of the stress, the Respondent's incapacity to work was caused by that bringing on of symptoms or by 'the aggravation of the symptoms' in those circumstances. 3. Whether Commonwealth of Australia v. Beattie 53 FLR 191 is correctly decided." Question 3. turns its attention to the finding of the Tribunal that Mr Percival's work with the Bank brought on, at the time, symptoms of the disease from which he suffered and thereby aggravated the disease. It was submitted by Mr A. Emmett Q.C., with whom Mr P. Arden appeared for the applicant, that Commonwealth of Australia v. Beattie (1981) 53 F.L.R. 191 had been wrongly decided and that the disease of which s.29 speaks is constituted by its underlying pathological condition and not by the symptoms thereof. This was a brave submission made without reference to any medical evidence suggesting that symptoms of a disease do not form part of a disease and also without reference to the definition of "disease" in s.5(1) of the Act which provides:- "'disease' includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development;" No doubt, for many medical purposes, it is useful and often necessary to distinguish between the underlying pathology of a disease and mere symptoms of the disease. For some legal purposes, eg. s.104(2) of the Act, the distinction is also pertinent. See Johnston v. Commonwealth (1982) 150 C.L.R. 331 at pp.341-3. But that is not to say that the symptoms of a disease are not a part of the disease. It is indeed fundamental to compensation law that a symptom of an injury or disease is a part of the condition in respect of which compensation for incapacity 1s granted. Pain 1s probably the most common symptom of injury or disease. It is equally the most common factor leading to compensable incapacity. If authority be needed, it 1s found in Federal Broom Company Pty Limited v. Semlitch (1964) 110 C.L.R. 626 in which McTiernan, Kitto, Taylor, Windeyer and Owen JJ. held that the word "disease" in the Workers' Compensation Act 1926-1960 (NSW) included a functional or mental illness and that, in respect of such a disease, the underlying illness was not separable from its symptoms. At p.634, Kitto J., with whom Taylor J. agreed, said:- "Once it was established, as it was established beyond question before the Commission by the evidence of the psychiatrists who were called, that the incident of ist December 1960 acted upon a pre-existing condition of mental illness (a disease) to produce a delusion causing incapacity for work, the respondent had made a clear case of exacerbation of her mental disease, according to the ordinary meaning of the word. Moffitt J. was right, I think, in saying: "There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms." That reasoning was applied by Evatt and Sheppard JJ. in Beattie's case, cited above, at p.201. Their Honours said:- "Por present purposes it is enough to say that pain brought on by work activity may constitute an aggravation of a pre-existing injury, even though no pathological change takes place." This decision was recently applied by Gallop, Sheppard and Neaves JJ. in Canberra Abattoir Pty Limited v. Asioty (ACT G18 of 1987, delivered 26 April 1988). Their Honours there considered a case where the worker's disease was quiescent but was likely to flare up if he returned to work. Their Honours said:- "A return of the symptoms of the disease if Mr Asioty resumed certain types of work could amount to a further aggravation or recurrence of the pre-existing disease, but the likelihood of a return of the symptoms could not be described as an aggravation or recurrence within the meaning of the definition of 'disease'." Those decisions treated the symptoms of a disease as part of the disease. With that view we entirely agree. The relevant distinction is not that which Mr Emmett sought to draw but rather the distinction between the sequelae of a disease which are not a part of the disease and the sequelae thereof which are a part of the disease. That distinction was considered, for instance, in Australian Telecommunications Commission v. Tzikas (1985) 5 A.A.R. 173 Cases in which single judges of the Court have considered like problems are O'Neill v. Commonwealth Banking Corporation {Qld G1i99 of 1986, Pincus J., delivered 9 July 1987) and Westgate v. Australian Telecommunications Commission (NSW G257 of 1987, Davies J., delivered 23 December 1987). In its consideration of Mr Percival's condition to the stage of his retirement, the view taken by the Tribunal was well supported by the evidence before it and we have no reason to doubt its correctness. The Tribunal correctly applied the principles enunciated 1n Beattie's case. The Tribunal accepted the evidence of Dr Fletcher that the basic pathology of Mr Percival's coronary artery disease was not aggravated or accelerated by stress at work but that his work with the Bank would have aggravated the symptoms of the disease and that the aggravation of the symptoms was a factor leading to Mr Percival's retirement. Rather than placing undue reliance upon remarks in Beattie's case and drawing incorrect inferences therefrom, which it did not do, the Tribunal may in fact not have given due weight to the concept enunciated in Beattie's case when turning its attention to the next stage of its consideration, that is to the situation after retirement. This is because the Tribunal adopted Dr Fletcher's evidence, which was that the underlying pathology of Mr Percival's condition was not aggravated or accelerated by his employment. We merely note that Dr Fletcher's evidence that stress was unlikely to have contributed materially to Mr Percival's arteriosclerosis or its deterioration, did not necessarily lead to a conclusion that the stress and high blood pressure from which Mr Percival had suffered over a number of years had not brought about an overall condition which was too complex to be described by a reference simply to the underlying vascular pathology. The Tribunal rejected the view that Mr Percival's employment had contributed to his post-retirement condition. It rejected this by reference to Dr Fletcher's evidence and after consideration of all the evidence of the case. Notwithstanding our comments above, the Tribunal was entitled to come to that view on thé evidence before it. -~ 10 - Mr B.J. Gross Q.C., with whom Mr A.R. Cooley appeared for Mr Percival, submitted that the Tribunal had found as a fact that Mr Percival's employment with the Bank contributed to his post-retirement condition. But the Tribunal's reasoning is inconsistent with this, as 1s the form of the Tribunal's order remitting the matter to the Commissioner for Employees' Compensation for reconsideration. The whole of the Tribunal's reasoning makes it clear that the Tribunal came to the view that Mr Percival's stresses and pressures at work led to increased hypertension when he was at work and that that hypertension and the strain from which he was suffering brought about his retirement. The Tribunal referred to Dr Fletcher's evidence as follows:- "Dr Fletcher saw no point in examining the respondent he did comment that since retirement that the amount of the symptoms that the respondent got after retirement may well have improved because he would be resting well and less stressed in the broadest sense of the word, but did not think the underlying cardiac condition, which was what determined his prognosis, was changed by retirement." The Tribunal then concluded: "On no view of these facts can the respondent be regarded as being able to do his former job as branch Manager at Kogarah Bay; he is therefore partially incapacitated." It was on that basis that the Tribunal found that Mr Percival had a compensable incapacity and not on the basis that Mr Percival's employment had contributed to the post-retirement condition of his disease. Mr Gross submitted, nevertheless, that there was material before the Tribunal from Dr Schiller and other -i1i- medical practitioners which, if accepted, would have supported the conclusion that Mr Percival's employment with the Bank had contributed to his post-retirement condition. Clearly, there was such evidence and it would have been reasonably open to the Tribunal so to find. We need not discuss the details of that evidence. Mr Gross submitted that a decision of the Tribunal could be set aside only if there were no evidence which would have supported the decision to which the Tribunal came. However, this submission involves an impermissible extension of a different point, namely that, insofar as brief reasons for a decision do not express an error of law, then, if there is evidence to support the decision or the reasons given, so that no error of law can be inferred or otherwise identified, an attack upon the decision must fail. See, eg, the discussion respecting reasons for decision in Public Service Board of N.S.W. v. Osmond (1986) 159 C.L.R. 656, Pettit v. Dunkley [1971] 1N.S.W.L.R. 376 and Housing Commission of New South Wales v. Tatmar Pastoral Co Pty Ltd & Anor [1983] 3 N.S.W.L.R. 378. The Administrative Appeals Tribunal is, however, required by s.43 of the Administrative Appeals Tribunal Act 1975 (Cth), when giving its decision, to state the reasons for it, to set out its findings of fact and to make reference to the evidence upon which those facts were found. That is an obligation which the Tribunal undertook in the present case and its reasons are lengthy, careful and detailed. Such reasons ought not to be examined with an unduly critical or -~12- technical eye but should be read fairly with each sentence being weighed up and considered in the context of the whole. If, on the reading of such reasons, an error of law appears, either by express statement or by necessary implication and if that error of law affected the decision reached, then the decision must be set aside. If a material error of law is so identified, it is of no consequence that the decision reached could have been supported on a different basis, that there was evidence, which, if accepted, would have justified the ultimate decision. This Court is bound by the facts as found by the Tribunal. Under s.44 of the Administrative Appeals Tribunal Act, an appeal to this Court is on a point of law only. Such a point must be considered on the facts determined by the Tribunal. The function of the Court was enunciated by Brennan J. in Waterford v. The Commonwealth (1987) 71 A.L.R. 673 at 689 as follows:- "A finding by the AAT on a matter of fact cannot be reviewed on appeal unless the finding is vitiated by an error of law. Section 44 of the AAT Act confers on a party to a proceeding before the AAT a right of appeal to the Federal Court of Australia 'from any decision of the Tribunal in that proceeding' but only 'on a question of law'. The error of law which an appellant must rely on to succeed must arise on the facts as the AAT has found them to be or it must vitiate the findings made or it must have led the AAT to omit to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact. Therefore an appellant cannot supplement the record by adducing fresh evidence merely in order to demonstrate an error of fact." ~13- It is, therefore, not for this Court to review the evidence which was before the Tribunal and to support the Tribunal's decision upon evidence which was not accepted by the Tribunal. Nor is it for this Court to set aside the Tribunal's careful reasons as being of nought. We turn now to the last issue raised in the appeal, that is, whether the Tribunal was correct in concluding that, because work pressures had enhanced Mr _ Percival's hypertension, whilst he was at work and thereby led to his retirement, and because he could not return to his work at the Bank as his hypertension would reactivate, Mr Percival suffered from an incapacity for work which was compensable. Section 29(2) of the Act requires that the total or partial incapacity for work of the employee must result from the disease or from its aggravation, acceleration or recurrence if there is to be compensation therefor. This provision turns its attention to a disease as it exists at the time of the alleged incapacity. The view taken by the Tribunal was inconsistent with the approach adopted in Canberra Abattoir v. Asioty, cited above, and the several other cases to which we have referred and, 1n our opinion, was incorrect. The view that there must be a continuing condition which causes the incapacity was also adopted, under analogous legislation, in Repatriation Commission v. Moss (1982) 40 A.L.R. 553. The Court was there concerned with an unusual ~ 14 - provision in the Repatriation Act 1920 with respect to tuberculosis. At p. 558, Fox J. said:- "Economic consequences flowing from a physical or mental condition from which there has been complete recovery, or where complete restoration has been effected, are not provided for." At p.567, Deane and Fitzgerald JJ. said:- "The effect of the Tribunal's findings of fact in the present case may be shortly restated. Mr Moss did not at the date of the review have pulmonary tuberculosis or any physical or mental disability related to the pulmonary tuberculosis which he had earlier suffered; his health was no longer affected and no longer imposed any restriction upon his activities. The conclusions which we have reached, on the facts as found by the Tribunal, is that the disadvantages and lack of skills and abilities to which Mr Moss is presently subject cannot properly be seen as an incapacity for the purposes of the Act. They represent the consequences of a past incapacity which no longer exists. They do not constitute a present incapacity in the relevant sense. It was not disputed, on Mr Moss' behalf, that the consequence of that conclusion is that the decision of the Repatriation Commission should be restored." In the present case, the Tribunal found that Mr Percival's stress at work had enhanced his hypertension and strain whilst he was at work. It made no such finding with respect to his condition after his retirement and it is to be inferred from the whole of the Tribunal's reasoning that the Tribunal was not satisfied that there was any relevant continuing aggravation of Mr Percival's condition after his retirement. Such a finding was essential if the Tribunal was to hold that Mr Percival had a compensable incapacity for work. - 15 - In these circumstances, the appeal must be allowed and the Tribunal's decision set aside. Mr Emmett submitted that the Court should act on the basis of the findings of fact made by the Tribunal and order that Mr Percival's application for review made to the Administrative Appeals Tribunal be dismissed. However, although that is a course which the Court may adopt when the factual basis is clear, it is not a course to adopt when the evidence was complex and provides a basis for several differing conclusions. In this case, it having been found that the Tribunal approached the matter on a wrong basis, the appropriate order is that the matter be remitted to the Administrative Appeals Tribunal to be heard and decided again with or without the hearing of further evidence. Such an order will enable all matters to be considered. The question of costs was not raised in the submissions of counsel, no doubt because of the special provisions as to costs contained in the Act. However, the Court will reserve the question of costs in case the matter was overlooked. I certify that this and the 14 preceding pages are a true copy of the Reasons for Judgment herein of the Court. — Associate: Oo {, Date: 14 July 1988 Counsel for the appellant: Solicitor for the appellant: Counsel for the respondent: Solicitor for the respondent: Dates of hearing: Place of hearing: - 16 - Mr A. Emmett Q.C. with Mr P. Arden Mr L.C. Hollis Mr B.J. Gross Q.C. with Mr A.R. Cooley McClellands 22-23 May 1988 Sydney