Heald v Telstra Corp Ltd [1999] FCA 379

FEDERAL COURT OF AUSTRALIA

Heald v Telstra Corp Ltd [1999] FCA 379

CHRISTOPHER FORREST HEALD V TELSTRA CORPORATION LIMITED

NG 1017 of 1996

THE HON JUSTICE MARCUS einfeld AO

sydney

30 march 1999

GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 1017 OF 1996

BETWEEN: CHRISTOPHER FORREST HEALD

Applicant

AND: TELSTRA CORPORATION LIMITED

Respondent

JUDGE: THE HON JUSTICE MARCUS EINFELD AO

DATE: 30 MARCH 1999

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant in this case was injured on 19 November 1986 when he fell and hurt his neck while employed by Telstra. There was a reasonably lengthy period of treatment to the cervical region and it seems that in due course the condition in his neck either resolved or became quite subsumed by an anxiety condition which on all the medical evidence appears to be of a significant and identifiable kind. For some time he was paid compensation without the need for litigation, but in August 1994 a determination was made that from 14 December 1993 Telstra was not liable to continue to pay compensation. 2 Upon an application by the applicant for the continuation of compensation payments, the Administrative Appeals Tribunal gave a decision on 27 November 1996 that the applicant's psychiatric disorder was not causally connected to his employment but was a reaction to his social and domestic difficulties. These difficulties were the subject of a considerable amount of evidence both before the Tribunal itself and in the histories given to the large number of doctors, including at least four psychiatrists, whose opinions were all available to the Tribunal. They included the fact that the applicant had had a marriage break up in difficult and acrimonious circumstances; that thereafter he had been looking after his sons, with difficulty; and that in a number of other social respects, he had become an imperfect personality in contradistinction to the situation which had existed up until the anxiety condition had manifested itself. The applicant has now appealed the Tribunal's decision. 3 The issue before the Tribunal was whether there was a nexus between the anxiety disorder and the employment. There was certainly evidence that supported the nexus. The question is whether there was any contrary evidence upon which the Tribunal could fix in order to support its finding of lack of causal connection. Clearly, the decision as to which evidence is to be preferred is a matter for the Tribunal alone. It is an issue of fact into which this Court cannot inject itself unless the finding manifests an error of law. 4 There will be an error of law in two relevant circumstances. One is where there is a misconception or a misdirection of the evidence presented to the Tribunal, which in this particular case is the evidence relating to the lack of nexus. The second would be where the Tribunal fails to give adequate reasons to illustrate its process of thinking in coming to its determination. As to the second of these items, it has long been held and is well settled that it is inappropriate for a reviewing court to bring to the words of the Tribunal's determination an ultra critical eye or a pedantic analysis designed to illustrate a formal defect. The Tribunal is not required to demonstrate perfection in its expression of its reasoning and the Court is constrained to read the determination as a whole and attempt to identify the reasoning, even if unexpressed, of the Tribunal as a means of supplementing the words used to obtain the complete meaning. 5 An analysis of the first question requires the Court to examine the evidence upon which the Tribunal fixed or could have fixed in finding that there was no causal nexus between the employment and the anxiety condition. There does not appear to be any doubt that the anxiety condition is disabling in a relevant sense. If then it is accepted that the condition had been materially contributed to by the employment, the applicant would be entitled to some form of compensation under the legislation. 6 The Tribunal expressed itself as having preferred the evidence of Dr Yvonne Skinner, one of the psychiatrists who examined Mr Heald, over the evidence of Dr Beesley who, in a lengthy report of 13 pages, appears to have come to the conclusion that the applicant did not suffer, on a continuing basis at least, from any identifiable condition or disease of depression or anxiety neurosis. The Tribunal's preference for the opinion of Dr Skinner meant a conclusion that the applicant suffered from an adjustment disorder with mixed features of anxiety and depression. 7 Thus the only issue left for determination by the Tribunal was that of causation. The Tribunal described this issue in paragraph 31: The issue between the two specialists is essentially one of causation and the Tribunal concludes that, on the balance of probabilities, the anxiety and depression are a reaction to his social and domestic difficulties. 8 It is not immediately clear to which two specialists the Tribunal was actually referring. It had just previously referred to the opinions given by Doctors Skinner and Gertler. It referred earlier and then later to Dr Beesley in identifying its preference for the opinion of Dr Skinner. Dr Beesley's exclusion of the existence in large measure of any psychiatric disorder seems to suggest that the dispute between him and Dr Skinner was not one of causation but was one of the existence of the anxiety condition. Hence, when the Tribunal identified the question of causation, it may have actually been drawing a distinction between the views of Dr Skinner who the Tribunal concluded did not accept a nexus, and Dr Gertler, who thought that there was a connection. 9 The first question for the Court is thus whether the Tribunal correctly interpreted Dr Skinner's evidence as excluding a causal nexus between the employment and the psychiatric condition. Dr Skinner provided two reports that are relevant to this issue. In relation to her finding that Mr Heald was suffering from an adjustment disorder of moderate severity with mixed features of anxiety and depression she assessed the condition as a 10 per cent impairment according to table 5.1 of the so-called Comcare Guide. She went on to say this about the causation question: It is very difficult to be clear about causation. His work injury occurred 10 years ago and there have been a number of significant inter-personal problems including the break up of his marriage, problems in the management of his sons' adolescent development and illness of his parents. All of these events probably contributed to his present symptoms. 10 I interpret that paragraph as asserting that all of the matters mentioned including the work injury are contributing to his anxiety and depression. However, not surprisingly, the solicitors for Telstra wrote to Dr Skinner on 21 June 1996 seeking clarification: We understand the difficulty in determining causation in this matter. However, we seek your opinion as to whether, on the balance of probabilities, his current psychiatric condition is related to the work injury sustained in 1986. Further, could you clarify whether the whole person impairment of 10% as assessed by you is related to the work injury in whole or in part. 11 Dr Skinner replied in a letter dated 26 June 1996 in which she referred to the earlier report which she classified as one in which she "described the history by Mr Heald, of difficulties at work and significant interpersonal problems. These included the following stressors", whereupon she briefly enumerated the occurrences that impacted upon Mr Heald's health over recent years, commencing with the fall at work in 1986 and going on to deal with his encountering of problems there in 1988 as a result of company restructuring and his relocation. She included some detail about the stressful work environment that flowed from his transferral to a different position and noted that in 1988 following a panic attack a diagnosis of anxiety with panic attacks was made. She also noted the applicant's disappointment in 1988 as a result of his removal from field work which he had enjoyed. 12 Dr Skinner enumerated Mr Heald's separation from his wife in 1990 and the subsequent litigation over all matters relating to the marital arrangements. She commented that he had found it difficult to manage his parental role with his son, especially his youngest son, and commented on his complaint of being lonely, his inability to cope with housework and parenting, and his difficulty in socialising. Dr Skinner noted again that there was a problem with alcohol. Another factor mentioned was that in 1993, the applicant had undergone an operation on his right foot which had resulted in significant pain and that in 1996 he was still undergoing therapy to help him work. The doctor then went on as follows: I do not think that his present psychiatric condition is related to the work injury sustained in 1986. On the balance of probabilities, it is much more likely to be related to his present difficulties occurring as a result of his marriage break up, problems in the parenting role, loneliness and alcohol dependence. The pain and restriction to movement in his foot may also be contributing. I consider that his condition is mainly attributable to the marriage break up. At this time he describes a tendency to binge eat, significant weight increase, depression and increase in his alcohol consumption…Thus, I think that his ten percent whole person impairment is a direct result of the marriage break up. 13 Then, in her penultimate paragraph, Dr Skinner said: According to the history given to me by Mr Heald, he attributed the onset of psychiatric symptoms, of panic attacks and anxiety, to a move in the work place due to restructuring in 1988. It is his perception that his mental state as a result of the restructuring led to the marriage break up. If this is accepted, it could be argued that one to two per cent of his whole person impairment is attributable to the working conditions of restructuring and transfer in 1988. 14 By the definitions in s 4 of the Safety Rehabilitation and Compensation Act 1988, the question whether the applicant is entitled to compensation turns on whether his condition was in a material degree contributed to by his employment by Telstra. In other words, there does not have to be a direct connection with the injury in 1986, but there does have to be a connection with the employment by Telstra, including that injury and the restructuring and transferral activities in 1988. Thus the question arising here is whether the Tribunal correctly interpreted Dr Skinner's view when it found in paragraph 32 that: … the effects of the original injury to the cervical neck area of the Applicant has resolved and that continuing episodic symptomatology is associated with an early degenerative spondylosis. 15 The Tribunal then went on to say in the same paragraph that its opinion was that … the applicant's adjustment disorder is causally related to his emotional and domestic circumstance which, in turn, is what he brings to his continuing interactions in his work and social environment. 16 This view is that the applicant's anxiety disorder is not casually connected to his employment by the respondent. Dr Skinner was clearly of the opinion that the psychiatric condition was not related to the work injury in 1986, but was also of the opinion that if the marriage break up, to which she attributed the psychiatric condition in 1996, was contributed to by the changes at work in 1988, then a recognisable percentage of his impairment could be attributed to those events. Although she received a history of these 1988 work changes, she did not form an opinion about them herself, but merely in effect told the solicitors in reply to their letter that if it be accepted that there is a nexus between the 1988 work changes and the applicant's psychiatric condition, then there would be a basis upon which compensation could be granted. 17 That required a factual finding about the connection between Mr Heald's marriage break up and the 1988 work changes. In his evidence to the Tribunal, Mr Heald spoke of these matters. I will not quote his evidence in this regard, but some emphasis given to the effect of the workplace changes, possibly in addition to the aftermath of the 1986 injury, on marital harmony which eventually led to separation and divorce. As far as I can see, the Tribunal has not made a finding in this regard. 18 There is no indication that the Tribunal doubted any aspect of the applicant's evidence in relation to his history of particular events which included the original injury, panic attack, domestic disharmony and eventual separation and divorce, and the attempt to adjust his social circumstances by social exposure and engaging in various forms of therapy or joint sessions with other men. The benign and relatively bland way in which the Tribunal expressed the applicant's evidence in these regards suggests that his evidence was accepted. 19 Further, the applicant saw a very large number of doctors to whom this history was given in whole or in part and none of them appears to have disbelieved him in any material respect. Even Dr Beesley's adverse opinion as to the existence or otherwise of a psychiatric injury or disorder appears to be based more on clinical findings than on any rejection of the applicant's veracity. A reasonable conclusion can thus be drawn that the applicant was not rejected in respect of any of the factual matters about which he gave evidence and one can therefore assume that the Tribunal would have had no difficulty with accepting his evidence that there was at least a temporal nexus between the restructuring and work changes in 1988 and his marriage break up. 20 However, that finding itself would not be enough to draw a conclusion about the appropriateness of compensation because there is first a need for a conclusion that this connection which the applicant noted in a temporal and symptomatic sense was in fact a psychiatric or medical nexus such as would suggest that there was a causal association between the two. It is not a question of it just happening in time but happening psychologically or pathologically. These things are often the same but they are not necessarily so. It seems likely that had the Tribunal addressed itself to this question, it would have found that there was a relevant causal connection between the employment changes and the marriage break-up. However, this question is a matter for the Tribunal and not for the Court because Parliament has said that these factual matters can only be determined by the Tribunal unless the Court could conclude that there was no question left to be determined. 21 One is always hesitant to send matters involving unwell people back to the Tribunal because it involves another hearing, additional stress to the applicant, and not insignificant additional expense. But it is for the Tribunal to make these determinations and the problem I face here is that the Tribunal does not appear to have done so. I would like very much to be able to read into its determination that it did make all the necessary factual findings and would be prepared to stretch the matter to a considerable degree in order to do so, but the Tribunal has effectively excluded any possibility of my doing so in a relevant way here because its limiting of its conclusion to the effects of the original injury in 1986 means that it simply does not appear to have addressed the connection between the 1988 employment events and the marriage break-up to which Dr Skinner has attributed at least part of the psychiatric condition. 22 If there is accepted, as I suspect will be the case, a causal nexus between the onset of psychiatric symptoms and their subsequent progress with the restructuring in the first place, and then between the restructuring and the marriage break up, Dr Skinner's view would then be that a recognisable portion of the applicant's present disability would come within the appropriate definitions and would result in his condition being compensable. That, however, is a conclusion for the Tribunal alone and cannot be made by me. 23 It will require the Tribunal to go beyond what it found on the last occasion and to make a finding first that the original onset of psychiatric symptoms including the panic attacks and anxiety were caused by or related to the workplace activities in 1988 and that those workplace events led to the marriage break up. If those findings are made, then Dr Skinner's opinion would make possible a conclusion that compensation should be paid. The only conclusion that I can reach at the moment is that those findings have not been made and have not been refused. They simply have not been addressed. 24 That is a legal defect in the determination which requires the upholding of the appeal and the referring of the matter to the Tribunal for further consideration in the light of these reasons for judgment and that will be the order of the Court. [AFTER DISCUSSION] 25 In my opinion the new hearing should take place before a different Tribunal member but that matter is a decision for the President of the Tribunal. The respondent will pay the applicant's costs of the appeal. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marcus Einfeld AO.