FEDERAL COURT OF AUSTRALIA SAFETY REHABILITATION AND COMPENSATION – where appellant unsuccessful claimant for compensation for stress and anxiety and lichen planus – whether Administrative Appeals Tribunal erred in law by finding that there was insufficient evidence of incapacity to work – whether stress and anxiety a "disease" or "injury" for the purposes of the Act – whether the necessary causal connexion with employment able to be shown. ADMINISTRATIVE LAW – whether Administrative Appeals Tribunal erred in law by failing to consider a claim or submission not put to it by appellant Safety Rehabilitation and Compensation Act 1988 (Cth) s 14, 4 Health Insurance Commission v Van Reesch & Anor (1996) 45 ALD 302 Refd Federal Broom Co Pty Ltd v Semlitch (1964) 100 CLR 626 Kirkpatrick v Commonwealth (1985) 9 FCR 36 Refd Noble v Repatriation Commission (Full Court, 3 November, unreported) Appl University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 Refd Coulton v Holcombe (1986) 162 CLR 1 Refd William van Oostveen v Comcare QG 15 of 1998 Kiefel, Finn and Finkelstein JJ Brisbane 9 September 1998 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QG 15 of 1998 ON APPEAL FROM A JUDGE OF THE FEDERAL Court OF AUSTRALIA BETWEEN: WILLIAM VAN OOSTVEEN Appellant AND: COMCARE Respondent JUDGES: KIEFEL, Finn and finkelstein JJ DATE OF ORDER: 9 september 1998 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QG 15 of 1998 ON APPEAL FROM A JUDGE OF THE FEDERAL Court OF AUSTRALIA BETWEEN: WILLIAM VAN OOSTVEEN Appellant AND: COMCARE Respondent JUDGES: KIEFEL, Finn and finkelstein JJ DATE: 9 september 1998 PLACE: BRISBANE REASONS FOR JUDGMENT KIEFEL and FINN JJ The appellant has been an unsuccessful claimant for compensation under the Safety Rehabilitation and Compensation Act 1988 (Cth) ("the Act") for, amongst other complaints, the skin condition lichen planus and stress and anxiety. He appeals from the decision of a Judge of this Court, dismissing an appeal from the Administrative Appeals Tribunal ("the Tribunal"). As will be observed from the reasons which follow, the appellant's counsel was permitted to range more widely in his challenge to the Tribunal's decision than the notice of appeal would have warranted. The consequence of this has been that we have been asked to consider matters that were not explicitly considered either by the Tribunal or by his Honour. We deferred consideration of a motion by the respondent to strike out the appeal as incompetent until argument had been heard on the appeal. Given the view we take of the appeal itself it is unnecessary for us to deal with the motion. For the purposes of the appeal we need only refer to several provisions of the Act. Section 14(1) provides that: "14.(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment." The Act, s 4, defines "injury" so as to include "disease" but in turn defines "disease" in a way that requires a different causal connexion between the ailment suffered and the employment in question than is the case for an injury not being a disease. This difference, though emphasised by counsel for the appellant, is of no great moment in this appeal and for this reason. Whether or not the "injury" founding a claim for compensation is a disease or an injury other than a disease, "injury" must result in "death, incapacity for work, or impairment." In considering Mr van Oostveen's claims the Tribunal posed for itself the following hierarchy of issues: (i) "Whether there is a disease as defined in s 4(1) of [the Act]." (ii) "Whether there is an injury as defined within the terms of the said section." (iii) "Whether the Applicant suffered an incapacity for work in relation to any of the claims or suffered an impairment within the terms of s 14(1) of the Act." It was not suggested that there was any error in the statement of these questions as those relevant for determination. In relation to the claim relating to stress and anxiety no explicit finding was made whether this constituted a disease or an injury other than a disease. The appellant has sought to make much of this. What the Tribunal did was to provide a direct answer to the third of the above questions. Having noted that Mr van Oostveen had been a heroin user and that it was his own resignation that brought to an end the employment the subject of his compensation claims, the Tribunal concluded: "… We accept the evidence of Ms Conrad that the applicant had submitted his resignation on a voluntary basis and we note that a certificate provided by Dr Scragg a few days prior to that resignation, had stated that the applicant was unfit for work as a result of withdrawal from the methadone program. No other basis for incapacity was stated and no other medical evidence has been produced to indicate that the applicant has been otherwise incapacitated for work since that time. Also, as Dr Frame had stated in his report of 27 September 1991, it was very important that the applicant remain in employment. Dr Frame clearly did not believe that the applicant was then incapacitated for work. As withdrawal from the methadone program was in no way related to his work with ACS, we find that there is no basis for his claim that work related stress has resulted in incapacity for work. The decision under review will therefore be affirmed." The conclusion reached, that the appellant had not been shown to suffer any incapacity for work, was apparently regarded by the Tribunal as rendering unnecessary the determination of the first two questions listed. No reference to the possibility that the appellant suffered impairment was made, and we assume this to be so because the case presented by him was one of total incapacity for work, following upon his resignation on 20 March 1992. There was no suggestion that he has worked since that time or that he had sought work. The question whether any error of law was disclosed in reasoning to this conclusion was not gone into by the appellant. The focus of submissions on his behalf before the primary Judge was upon an earlier finding by the Tribunal, that his condition of stress or anxiety was not work related. The earlier part of the paragraph in the Tribunal's reasons, from which we have extracted the conclusion as to incapacity above, was as follows: "31. The Tribunal did not find the applicant to be a truthful witness. There is little doubt that throughout the period of the applicant's employment at ACS, he was on a methadone program, although it would appear that that information was not made available to a number of medical practitioners to whom he had been sent for assessment or management. In spite of his own evidence, the Tribunal accepts the evidence of Dr Freed that the applicant has a long history of substance addiction and the Tribunal does not accept the explanation that he had used heroin solely to be able to be put on to the methadone program for treatment of his nervous stress. It is clear from the evidence that the application [sic] had been subjected to many episodes of physical trauma, with possible brain damage, during the period 1978 to 1992 and there was no evidence that any of the head injuries had occurred as a result of work related trauma. Having heard the evidence of Dr Gorham and Ms Conrad, and having considered the medical evidence and listened to the evidence of the applicant, the Tribunal is unable to accept that the current condition of the applicant has resulted from work related stress during the period of his employment at ACS, between 1989 and 1992. Those medical reports, which have indicated a possible link between events at work and the described stress have relied entirely on an inaccurate history given by the Applicant. In this regard it should be noted that we have already stated earlier that we did not find the Applicant to be a truthful witness." It was then argued before his Honour that three errors were disclosed in the Tribunal's reasoning to that conclusion: because it failed to make findings as to why the medical evidence did not disclose the necessary link between events at work and stress; it found that the stress suffered by Mr van Oostveen was caused by a withdrawal from a methadone program; and it did not make a finding which accepted, or excluded, the possibility of earlier brain damage. His Honour explained, in some detail, that the last two matters were not essential to the Tribunal's reasoning. In connexion with the necessary causal relationship, his Honour explained that the only evidence which suggested that there might be some link was discounted by the Tribunal as it depended upon an acceptance that accounts given by Mr van Oostveen to the medical practitioners in question had been truthful. As may be observed, the Tribunal did not accept that those accounts were. The alleged errors, on the part of the Tribunal, were restated in the notice of appeal which did not, however, identify any error in his Honour's reasons concerning the Tribunal's decision. In any event, on the view we take of the matter, it would not overcome the deficiency of evidence in relation to the issue of incapacity. The conclusion which we have taken as that which was ultimately reached by the Tribunal, as to incapacity, has not been the subject of challenge by the appellant although the appellant's attention was directed to it in the course of argument on the appeal. It was not considered by the primary Judge doubtless because of the contentions which were advanced. It seems to us that the only possible attack which could be made upon it, for error of law, must depend upon there being evidence of incapacity, contrary to the Tribunal's findings. The Tribunal accepted that the appellant was unfit for work at the time of his resignation, because of his withdrawal from the methadone program. The Tribunal then went on to point out the gaps in the evidence otherwise as to incapacity. There was no other basis disclosed by any of the medical evidence as to any incapacity for work since that time. At an earlier point, in September 1991 and prior to his cessation of employment, the medical advice had been that it was beneficial to him to remain in employment. Indeed the report in question suggested a relocation for the purpose of obtaining some family support. It did not however suggest that he was unable to work and, as the Tribunal observed, the only inference to be drawn from it was that he was. This Court was not taken to any evidence as to incapacity which could be said to have been overlooked by the Tribunal and which would have weighed against the conclusion it reached. We have, nevertheless, re-examined the medical evidence. The only statement which goes anyway towards suggesting incapacity at any other time was that made by the neurologist Dr Davies in his report of 14 February 1992, who considered Mr van Oostveen's condition might be a psychiatric rather than a neurological one. There was other, psychiatric, evidence which tended the other way, but it is not necessary to deal with that. After referring to some signs of traits relevant to a possible condition having been exhibited, the doctor went on: "…On what I saw in the interview today I would be very surprised if he was able to perform adequately in responsible employment" and added that no further neurological investigations were warranted. The evidence did not take that further and Dr Davies was not called before the Tribunal. It cannot, in our view, be said that the Tribunal was bound to have concluded that the appellant was incapacitated from his work on the basis of that statement, either at that time or following his resignation. It does not conclude any question of incapacity. Further, so far as it goes, the report is dependent upon the appellant's account to the doctor being accurate and the Tribunal had discounted, if not negated, that possibility. The following month the appellant resigned and, as the Tribunal noted, the reasons given in the medical certificate and his letter of resignation did not show the stress to be work related, but as brought about by his recent withdrawal from a methadone program and his skin condition, which we shall deal with later. On the view we have taken it is unnecessary to deal with the appellant's contention, raised only in argument on the appeal and neither before the Tribunal nor his Honour the primary Judge, as to whether his state of anxiety or stress falls to be considered as a disease or as an injury. We add only these observations. The argument advanced sought to bring the condition within the definition of "injury" rather than "disease", for the reason that it was apprehended that this would overcome the need to show any causal connexion between it and the employment because, as it was put, there needs be shown only that an injury occurred "in the course of employment". For our part we would have thought the condition would more accurately be described as a disease. The references to possible brain damage having resulted from physical attacks, at various times, upon the appellant do not assume importance. The Tribunal dealt with the only one which occurred during the currency of employment and from those findings it is clear that a conclusion that it occurred during the course of employment was not open. Even were one to accept that it may have been open to the Tribunal to deal with the appellant's state of anxiety or stress as an injury, the appellant would have had to show that it was one "arising out of or in the course of employment" (s 4). If this be limited to a requirement of a temporal relationship (Health Insurance Commission v Van Reesch & Anor (1996) 45 ALD 302) the appellant has not shown how that conclusion must have been reached, particularly given the Tribunal's findings that any account of his case history given by him to doctors was not to be relied on. In relation to the application for compensation which was based upon the skin condition, the Tribunal concluded: "No evidence was provided to indicate that the lichen planus had been worse during the period of the applicant's employment at ACS, nor had any evidence been produced linking any claimed stress at work with exacerbations of lichen planus. Finally, no medical evidence was provided to indicate that the applicant had an incapacity for work in 1992 because of lichen planus. …The Tribunal finds no basis for the claim for compensation as a result of incapacity due to the disease, lichen planus. The Tribunal will therefore affirm the original decision in relation to the claim for lichen planus." The argument before his Honour, and again before this Court, was that the Tribunal was wrong to conclude that there was no evidence that the lichen planus was caused or aggravated by the appellant's employment. Once again, the submissions for the appellant did not identify any error in his Honour's consideration of that question. His Honour observed that the evidence that the appellant had suffered from the condition since 1986 supported the Tribunal's determination as to cause; and the evidence relating to episodes of the condition in 1991 went no further than establishing its occurrence. It did not establish an aggravation of the condition. The possibility of a connexion between stress and exacerbation of the condition, which the Tribunal noted from medical evidence to be conflicting, does not alter that finding. No error by the Tribunal or his Honour is shown. The appeal should be dismissed with costs. I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justices Kiefel and Finn JJ Associate: Dated: 9 August 1998 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY qg 15 of 1998 On appeal from a Judge of the Federal Court of Australia BETWEEN: WILLIAM VAN OOSTVEEN Appellant AND: COMCARE Respondent JUDGES: KIEFEL, FINN AND FINKELSTEIN JJ DATE: 9 september 1998 PLACE: BRISBANE REASONS FOR JUDGMENT FINKELSTEIN J: I agree with Kiefel and Finn JJ, for the reasons that their Honours give, that the appeal should be dismissed. But there is one aspect of the argument on the appeal that warrants separate comment. The appellant had lodged three claims for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) each one alleging that he had suffered an injury that had resulted in his incapacity for work. The first injury was a skin condition known as lichen planus, the second injury was a state of stress and anxiety and, finally, there was a back injury said to have been the result of a motor vehicle accident at work. The Administrative Appeals Tribunal (the Tribunal) affirmed the decisions that had been made by the respondent that the appellant had not suffered any compensable injury. In relation both to the skin condition and the stress and anxiety the Tribunal found that the appellant had not been incapacitated for work by those conditions. The back injury was not compensable because the Tribunal found that there was no link between that injury and the motor vehicle accident. The finding by the Tribunal that any stress or anxiety that was suffered by the appellant did not result in any incapacity for work was based on evidence, which the Tribunal accepted, that the reason the appellant had tendered his resignation from work was as a result of his withdrawal from a methadone programme. The Tribunal said that "no other material had been produced to indicate that the appellant had otherwise been incapacitated for work." This observation was not accurate. Mr L Davies, a neurologist at the Royal Alfred Hospital who had examined the appellant, stated in a report that had been placed in evidence: "My overall impression is that Mr Van Oostveen falls into a psychiatric category rather than a neurological one. Although there is no evidence of psychosis or hallucination, I think he shows some schizophrenic traits. On what I saw in the interview today I would be very surprised if he was able to perform adequately in responsible employment." The condition described by Mr Davies may be a disease within the meaning of that word in the Safety Rehabilitation and Compensation Act: a state of stress or anxiety, dependent upon its cause or severity, may also be a disease. Since the decision of the High Court in Federal Broom Co Pty Ltd v Semlitch (1964) 100 CLR 626 it has not been doubted that a psychosis or psychiatric illness, such as schizophrenia or the symptoms of schizophrenia is a disease. Nor should it be doubted that a mental illness that is constituted by stress or anxiety or the symptoms of stress or anxiety is a disease. The case that the appellant sought to make before the Tribunal was that his stress and anxiety, a disease, was attributable to his employment because it had been caused by a series of events or occurrences in the course of that employment. In summary they were: the failure to provide him with a complete and adequate set of tools and equipment; that he had not been provided with adequate duty statements or job sheets; that he had been subjected to bad management practices; that he did not receive proper remuneration benefits; that he had been subjected to unfair disciplinary action; that he was given demeaning or difficult tasks to perform; that he was not offered lucrative job allocations involving overtime; that he was not provided with sufficient assistance for his various jobs; that he had been subjected to harmful work conditions; that he was directed to work at various work sites with inadequate instructions and inadequate assistance; that he had received insufficient supervision and work instructions; that he had been forced to undertake inappropriate and unnecessary counselling sessions; and that his requested transfer to Queensland had unreasonably been refused. The Tribunal was not satisfied that any of these events had occurred. It did not believe the appellant's evidence that they had occurred. It accepted the evidence of the respondent's witnesses that was to the contrary effect. It was reasonably open to the Tribunal to reject the appellant's evidence and no error of law is disclosed in that regard. However, it does not follow from this conclusion that the appellant had not suffered any compensable injury. One possible view of the evidence is that the appellant was suffering from a mental illness that caused him to believe that the events that he had described had in fact occurred; that is that he was suffering delusions of one sort or another. If that be correct and if the appellant could show that this mental illness was caused by or contributed to in a material degree by his employment and, if so, that he was incapacitated for work, then he had suffered a compensable injury: see eg Kirkpatrick v Commonwealth (1985) 9 FCR 36. The appellant says that the Tribunal was in error in failing to consider these issues such that its decision should have been set aside by the trial judge. It may be, as the appellant now says, that he was suffering from a mental illness, that manifested itself in delusions that was caused or contributed to by his employment. It is true that the Tribunal did not consider whether this was so. But in failing to consider the appellant's case on this basis the Tribunal did not fall into error. What the Tribunal did was to consider the case that the appellant had put. That case was of a fundamentally different character from that suggested on appeal. In arriving at its decision the Tribunal was entitled to determine the matter in the way that it had been put by the appellant: see Noble v Repatriation Commission (unreported, Full Court of the Federal Court, 3 November 1997 at 19). The Tribunal was not obligated to sift through the evidence to see whether there was some other basis upon which the appellant might succeed. It is difficult enough nowadays to raise on an appeal a point not argued below: see University of Wollongong v Metwally (No. 2) (1985) 59 ALJR 481; Coulton v Holcombe (1986) 162 CLR 1. It should be even more difficult to complain that an administrative decision-maker has erred in law by failing to consider a case that was not articulated. It is not a function of an administrative decision-maker, at least in a case such as this, to investigate every possible way in which a claim may be established before finding that the claim is not made out. To hold otherwise would be to impose an unreasonable burden upon the decision-maker and would render the decision-making process quite inefficient. I certify that the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein J Associate: Dated: 9 September 1998 Counsel for the Appellant: Mr P K Searle Counsel for the Respondent: Mr P Bickford Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 16, 17 July 1998 Date of Judgment: 9 August 1998