Justin Tippett v Australian Postal Corp [1998] FCA 335

FEDERAL COURT OF AUSTRALIA COMMONWEALTH EMPLOYEES' COMPENSATION - administrative law - judicial review - error of law - pain as injury - aggravation of injury - whether pain aggravated by employment

Safety Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14(1)

Canberra Abattoir Pty Ltd v Asioty (unreported, Full Court, Federal Court, 26 April 1988) applied Commonwealth v Beattie (1981) 35 ALR 369 applied Commonwealth Banking Corporation v Percival (1988) 20 FCR 176 applied Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 discussed JUSTIN TIPPETT v AUSTRALIAN POSTAL CORPORATION VG 86 of 1997 FINKELSTEIN J MELBOURNE 6 APRIL 1998

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 86 of 1997

BETWEEN: Justin Tippett

Applicant

AND: Australian Postal Corporation

Respondent

JUDGE: FINKELSTEIN J

DATE OF ORDER: 6 APRIL 1998

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The appeal is allowed. 2. The decision of the Administrative Appeals Tribunal be set aside. 3. The matter be remitted to the Administrative Appeals Tribunal to be heard and determined according to law with leave to the parties to adduce further evidence. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 86 of 1997

BETWEEN: Justin Tippett

Applicant

AND: Australian Postal Corporation

Respondent

JUDGE: FINKELSTEIN J

DATE: 6 APRIL 1998

PLACE: MELBOURNE

REASONS FOR JUDGMENT HIS HONOUR: Mr Tippett (the applicant) is 24 years of age and is a keen and active sportsman. In the winter he plays football for the Langwarrin Football Club which participates in the Mornington Peninsula Nepean Football League. In the springtime Mr Tippett plays basketball for the Blackpanthers Basketball Team. In May 1994 Mr Tippett took up employment with the Australian Postal Corporation (the respondent) at first as a mail sorter and then, from December 1994, as a parcel post officer. A parcel post officer delivers parcels using a van which is driven by the officer. Mr Tippett was provided with a Mitsubishi Express van to carry out his duties. For those who are not familiar with this type of vehicle it is only necessary to note that it has a manual gear box. During the latter part of 1995 Mr Tippett experienced pain in his left shoulder and went to see his doctor for treatment. Mr Tippett was told by his doctor that he was suffering from mild rotator cuff impingement of his left shoulder. Neither his doctor nor the physiotherapist he also went to see for further treatment could determine the cause of his injury but each of them expressed the opinion that it may have been aggravated by the repetitive changing of gears that occurred while Mr Tippett was driving his van at work. Mr Tippett made a claim for compensation under the Safety Rehabilitation and Compensation Act 1988 (Cth). By the Compensation Act compensation is payable to an employee of the Commonwealth and to an employee of certain Commonwealth authorities in respect of an injury suffered by that employee if the injury results in death, incapacity for work or impairment: see s 14(1). For the purposes of the Compensation Act injury is defined to mean, so far as is relevant for present purposes, "(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or (c) the aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment": see the definition of injury in s 4. The claim for compensation was refused. The reason given was that Mr Tippett's employment did not materially contribute to his condition. It was said that his injury had been caused by his sporting activities. Mr Tippett asked for this determination to be reconsidered: see s 62(1) of the Compensation Act. It was reconsidered but the decision was affirmed. Application was then made by Mr Tippett to the Administrative Appeals Tribunal to review the decision that had been made pursuant to s 62(1). Jurisdiction is conferred upon the Tribunal by s 64(1) to review such a decision. In the proceedings before the Tribunal the case that Mr Tippett sought to make out was that his injury (the mild rotator cuff impingement of his left shoulder) had been caused by the repetitive movements involved in changing the gears on the van and thus was an injury arising out of or in the course of his employment. The evidence that he gave to the Tribunal was to the effect that he had not suffered any shoulder injury while playing sport and therefore the injury must have arisen when he was driving the van. Two medical practitioners were called to give evidence on behalf of Mr Tippett, Dr Con Mitropolis, a general practitioner, and Mr Rodney Dalziel, an orthopaedic surgeon. In his evidence Dr Mitropolis said that it was difficult to establish the cause of Mr Tippett's injury but it had certainly been aggravated while he was changing gears in the van. Mr Dalziel said that the injury was work related because he was not aware of any other cause. The respondent called Mr Michael Shannon, another orthopaedic surgeon, to give evidence. Mr Shannon expressed the view that it was not likely that the injury to Mr Tippett's shoulder was caused by the movements involved while driving the van. In a written report tendered in evidence Mr Shannon wrote that "the condition [i.e. the shoulder injury] could be symptomatic when changing gears" but that activity had not "significantly aggravated" Mr Tippett's injury. In his oral evidence Mr Shannon said that he believed that the shoulder injury had been caused by the sporting activities of Mr Tippett. In relation to the effect that changing gears had on that injury he said: "Well, once you have the problem [ie the shoulder injury] then using your arm in a repetitive way, whatever it is, will tend to cause symptoms, but the activities that he's particularly describing, I don't regard typical of the type of activities that produce rotar-cuff problems". At the conclusion of his re-examination the following exchange took place between a member of the Tribunal and Mr Shannon: Q. Just to follow up on that, Doctor. It seems to me what you are saying, that whilst an injury or a condition of this - whatever the true description is - can occur through repetitive movement, that in the case of Mr Tippett, on the balance of probabilities you are saying that that was not the case, at least in terms of his work, but it is more likely than not to have been associated with his sporting activities; is that what you are saying? A. Yes. I'm saying, too, that the repetitive movement that he was performing was not particularly the kind of movement that's likely to precipitate the condition, in that most of his movement, as it is now explained to me, has been down low and that's not likely to precipitate rotator-cuff problems, although once you've got the problem any movement tends to be painful. Q. I do not know whether you were really taken to this directly, but you seem to be under the impression or under the opinion that if there was indeed a work-related aggravation that that was of a relatively temporary nature and once he ceased the van type duties, driver duties, going on to the more sedentary duties that you would expect the work-related aggravation to cease? A. Well, I think that that's true, although my point really was not so much that work was aggravating it, but that it was becoming symptomatic in the activities that he was doing at work, which I think is a slight difference, or it is in my mind." On 6 February 1987 the Tribunal handed down its decision on the review. It decided that the decision under review should be affirmed. The Tribunal accepted that Mr Tippett had suffered an injury to his shoulder which it described as a mild impingement of the supraspinatus tendon. But it found that that injury did not arise out of or in the course of Mr Tippett's employment for the reason that the injury pre-dated that employment. By way of explanation the Tribunal said: "As was stated by Doctor Shannon, who described Mr Tippett's condition as mild rotator-cuff impingement, initially any movement involving lifting of the arm will result in pain and we are satisfied that this was the situation in which Mr Tippett found himself when operating his mail delivery van. That is to say, the condition became symptomatic in that circumstance but was not caused by it." The Tribunal also found that the injury had not been aggravated by Mr Tippett's employment substantially for the reason that the injury did not prevent Mr Tippett from carrying out his work or from playing sport. In other words, the Tribunal was of the opinion, based on the medical evidence, that the physical injury that Mr Tippett had suffered before he had commenced his employment with the respondent had not become worse as a consequence of that employment. Mr Tippett now appeals to this Court on a question of law arising from this decision of the Tribunal. The appeal is brought pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). The short, but somewhat difficult, point of law is whether the Tribunal, having found that Mr Tippett's shoulder injury "became symptomatic" when he was operating the mail delivery van in the course of his employment, was also required to find that Mr Tippett had suffered an aggravation of an injury being an aggravation that arose out of or in the course of his employment. First it is necessary to say something about what is meant by the aggravation of an injury. It is sufficient to begin this discussion with a reference to the decision of the High Court in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626. That case concerned the meaning of the word "exacerbation" in a New South Wales workers compensation statute where "injury" was defined to include "the aggravation, acceleration, exacerbation or deterioration of any disease where the employment was a contributing factor to such aggravation, acceleration, exacerbation or deterioration". The disease in question was a mental illness and the question was whether that mental illness had been exacerbated by the worker's employment. There is an important passage in the judgment of Kitto J (at 634), with whom Taylor J agreed, which I should set out: "Moffitt J (at first instance) placed at least some of his emphasis upon the word 'exacerbation', and it seems to me that that word is the critical word for this case. As applied to a disease it is properly used to refer to effects which the disease produces in the victim rather than to the advance of the disease itself in a more serious stage of its development. 'A temporary increase in the violence of the symptoms of a disease' is the medical sense of the word according to Funk & Wagnall's, Standard English Dictionary. And in the Oxford English Dictionary may be found illustrations of the use of the word as referring to particular manifestations of a diseased condition. It is not a technical word, requiring scientific explication or application. It is an ordinary English word to be applied by the Court to the proven facts. 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 1 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 that 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 its symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism.' Accordingly if salt be applied to an open wound, making the wound no worse but causing it to smart as it had not smarted before, it is proper to say that there is an exacerbation of the wound. Equally, where an untoward occurrence in a worker's employment causes a pre-existing mental disorder to manifest itself in a new delusion, it seems to me proper to say that there is an exacerbation of the mental disorder." In other words, there will be an exacerbation of an injury when the experience of the injury is increased or intensified without any alteration to the underlying physical or mental condition. In considering the meaning of the word "aggravate" in the Compensation Act, which is the only one of the four words that appeared in the definition of "injury" in the New South Wales statute considered in Semlitch, it has been held that the same principles apply; that is to say an injury will be aggravated if the experience of the injury is increased or intensified: Commonwealth v Beattie (1981) 35 ALR 369. In addition, because "aggravation" of an injury is defined to include the "recurrence" of that injury it is not necessary to show that the experience of an injury is increased or intensified. It will be sufficient if, as a result of activities undertaken in the course of employment, a previous injury occurs again whether or not the experience of it is at the same level of intensity as before. What Beattie also makes clear is that the symptom of an injury, that is the experience of the injury, is a part of the injury in respect of which compensation is payable. This proposition was confirmed by the Full Court in Commonwealth Banking Corporation v Percival (1988) 20 FCR 176 where it was said that while for many medical purposes it may be necessary to draw a distinction between the underlying injury and the symptoms of it that is not so for compensation law where it is fundamental that the symptom of an injury is a part of that injury. Pain is the most common symptom of an injury. If the pain arising from an underlying condition is aggravated, that is increased or intensified, as a result of an employee's employment then the employee will have suffered a compensable injury: Commonwealth Banking Corporation v Percival (1988) 20 FCR 176 at 179-180. The same is true if the pain caused by an underlying condition has dissipated but returns as a consequence of the activities that are undertaken during the course of an employee's employment: Canberra Abattoir Pty Ltd v Asioty (unreported, Full Court, Federal Court, 26 April 1988) a proposition which was not disturbed on appeal at (1989) 167 CLR 533. However, as was pointed out by the Full Court in Beattie, supra, at 378 per Evatt and Sheppard JJ: "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." This passage draws a very important and perhaps obvious distinction between the case of a worker who has a pre-existing injury that causes the worker to suffer pain whether or not the worker is at work and the case of a worker who has a pre-existing injury and it is the activities at work that cause the worker to suffer pain or to suffer pain more intensely. It is only in the latter case that it can be said that the worker has suffered an aggravation of his or her pre-existing injury. With the foregoing principles in mind I return to the reasons for decision given by the Tribunal for the purpose of considering whether those reasons disclose an error of law as has been alleged. When the Tribunal found that Mr Tippett's injury (the mild impingement of the supraspinatus tendon) did not arise out of or in the course of his employment and when it found that the injury had not been aggravated by that employment, the Tribunal was directing its attention to the underlying physical injury. It made those findings substantially in reliance on the evidence of Mr Shannon set out earlier in these reasons. The Tribunal did not deal with the questions whether the pain suffered by Mr Tippett was a part of his injury and whether that pain had been caused or aggravated by Mr Tippett's employment with the respondent. In that regard the Tribunal erred in law. That is to say, the Tribunal approached the case before it without giving the word "injury" its proper and required meaning. It failed to have regard to the fact that part of its function was to determine whether the pain suffered by Mr Tippett (being a part of his injury) had been caused or aggravated by his employment. Accordingly, it is necessary to set aside the decision of the Tribunal. But what other orders should be made? The usual order would be for the case to be remitted to the Tribunal for its reconsideration. However, Mr Tippett asks the Court to make an order, in accordance with the powers conferred upon it by s 44(4) of the Administrative Appeals Tribunal Act, that compensation is payable to him. The reason why this order is sought is that, so it is said, once the Tribunal found that Mr Tippett's "condition became symptomatic" while operating the van at work it necessarily followed that Mr Tippett was entitled to compensation under the Compensation Act. There is force in the submission that the finding by the Tribunal that Mr Tippett's "condition became symptomatic" at work required the Tribunal to find that Mr Tippett's injury had been aggravated by his employment. On the other hand, the position is not free from doubt. The Tribunal did find that any movement that required Mr Tippett to lift his arm would result in him suffering pain. It is possible that by this finding the Tribunal meant that Mr Tippett suffered pain whether or not he was at work. If that was the view of the Tribunal then Mr Tippett would not have suffered a compensable injury. However, it is difficult to form a concluded view on precisely what the Tribunal had in mind in making the statement that any movement of his arm would result in Mr Tippett experiencing pain for the reason that it was not directing itself to the question whether the pain that Mr Tippett was experiencing had been aggravated by his employment. Thus it would be unsafe to rely on this finding to resolve the claim in Mr Tippett's favour. In the circumstances the appropriate order to make is to remit the case to the Tribunal to be heard and decided again giving leave to the parties to adduce further evidence. The reason why the parties should be permitted to adduce further evidence is that I doubt that they had previously turned their minds to the possibility that the pain suffered by Mr Tippett was to be treated as part of his injury. For the same reason I do not think that it is appropriate that there should be any order for costs on this appeal. Accordingly I will allow the appeal, set aside the decision of the Tribunal and remit the case to it to be heard and decided again with such further evidence as the parties seek to adduce. I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein