FEDERAL COURT OF AUSTRALIA Bowman v Comcare Australia [2000] FCA 88 WORKERS COMPENSATION – Commonwealth employee's compensation – Condition of sinusitis and bronchial asthma – Finding by Administrative Appeals Tribunal that condition not caused or contributed to by his employment – Alternative claim that condition was temporarily aggravated, from time to time, by employment – Tribunal negatived permanent aggravation but made no express reference to temporary aggravation – Whether Tribunal erred in law – Whether there was evidence before Tribunal of probability of temporary aggravation – Whether applicant put a case of temporary aggravation – Whether Tribunal's findings covered temporary aggravation. Safety, Rehabilitation and Compensation Act 1988, s4 Administrative Appeals Tribunal Act 1975, s44 GRAEME LESLIE BOWMAN v COMCARE AUSTRALIA No. 991 of 1999 WILCOX J SYDNEY 11 FEBRUARY 2000 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. 991 of 1999 ON APPEAL FROM A SENIOR MEMBER OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: GRAEME LESLIE BOWMAN Applicant AND: COMCARE AUSTRALIA Respondent JUDGE: WILCOX J DATE OF ORDER: 11 FEBRUARY 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be allowed and the decision of the Administrative Appeals Tribunal of 10 August 1999 be set aside. 2. The matter be remitted to the Tribunal for further consideration and determination of the question whether the applicant sustained any incapacity or compensable loss as a result of temporary aggravation of his chronic condition of sinusitis and mild bronchial asthma by his employment by the Commonwealth of Australia. 3. The respondent pay to the applicant his costs of this application. 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. 991 of 1999 ON APPEAL FROM A SENIOR MEMBER OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: GRAEME LESLIE BOWMAN Applicant AND: COMCARE AUSTRALIA Respondent JUDGE: WILCOX J DATE: 11 FEBRUARY 2000 PLACE: SYDNEY REASONS FOR JUDGMENT 1 WILCOX J: This is an appeal under s44 of the Administrative Appeals Tribunal Act 1975 against a decision of the Administrative Appeals Tribunal affirming a decision to reject a claim for compensation made pursuant to the Safety, Rehabilitation and Compensation Act 1988. The issues 2 The applicant, Graeme Leslie Bowman, claimed to suffer severe nasal congestion/sinusitis and that this condition was caused, contributed to or aggravated by the dusty environments in which he had worked, as an employee of the Department of Defence, since late 1990. In its reasons for decision, the Tribunal said it did not doubt Mr Bowman "has suffered, and continues to suffer, various respiratory ailments", but the issue was "the relationship of any condition(s) suffered to his employment". In addressing that issue, the Tribunal carried out an analysis of the extensive medical evidence that was before it. 3 The Tribunal was especially impressed with the evidence of Dr Julian Lee, a thoracic physician called by the respondent, Comcare Australia. The Tribunal summarised Dr Lee's views in this way: "(i) the Applicant has chronic sinusitis and mild bronchial asthma; (ii) these conditions are constitutional and the result of a genetic pre-disposition and have no relevance to the Applicant's workplace; (iii) the Applicant already had evidence of sinusitis in the later 1970's and early 1980's and received medical treatment then for that condition; (iv) in referring to a dust allergy, the specific reference is to house dust mites and skin testing has shown the Applicant is not allergic to house dust mites; (v) mould is rarely, if ever, a cause of significant allergy in any work environment; (vi) the Applicant does not have occupational asthma; (vii) if there were dust in the air, the Applicant could have his condition aggravated by that dust but such an aggravation would cease within hours or, at the most, days. The Applicant's prolong [sic] absences from work could not be attributed to aggravation of his respiratory conditions at work; (viii) Dr Kaufman, although treating the Applicant for workplace sensitisation, has not been able to establish that it did occur; (ix) mould to cause any effect upon respiration has to be capable of forming spores, which are so small as to be microscopically invisible; and (x) self-administered peak flow readings are unreliable and should not be the basis for a diagnosis." 4 The Tribunal went on: "45. Dr Lee was firmly of the opinion that the Applicant's chronic sinusitis and mild bronchial asthma was not related to his employment. In particular, he was adamant that the Applicant did not have occupational asthma. In this opinion, he was supported by Dr McGroder whereas Drs Carroll and Halliday regard any workplace connection as 'obscure'. 46. Dr Lee and Dr Hall accept that there may have been some exacerbation of symptoms due to dust but regard that exacerbation as being temporary only. As Dr Lee pointed out in evidence, any such exacerbation could not justify the lengthy absences the Applicant had away from work. See also the report of McGroder referred to above. 47. None of the medical practitioners the Applicant originally consulted, namely Drs Halliday, Despas, Winkler or Gala, contend for a workplace cause. Although Drs Kaufman, Scoppa and Hamor do so contend, we are more persuaded by the evidence of Dr Lee that there is no connection. 48. As we are more persuaded by the evidence for the Respondent, namely that the Applicant's sinusitis and mild bronchial asthma are not caused, contributed to or in any way permanently aggravated by the Applicant's employment, the decision under review is affirmed. " 5 Dr McGroder is a consultant occupational health physician. He, also, was called to give evidence by the respondent. Prior to giving evidence, Dr McGroder inspected the places where the applicant had worked since late 1990, except premises at Zetland which have been demolished. Dr McGroder wrote a report dated 10 February 1999 with which Dr Lee indicated his agreement. In this report, Dr McGroder expressed the opinion that Mr Bowman was suffering from sinusitis and asthma, possibly with an allergic element. He thought the condition was possibly "a constitutional problem with an atopic predisposition". Under the heading "Fitness for Work", Dr McGroder said: "Mr Bowman has spent a good deal of time off work. His history and a visit to the workplace would suggest that there is a definite cause for aggravation of his condition. Working in poor quality air as appears to have been the case in the office and in dusty conditions in the warehouse, would certainly have aggravated the condition. Some time off work could thus be justified. I cannot, however, justify prolonged periods off, for example, nine and six months off work because of aggravation. Aggravations would have been temporary and on most occasions relieved with medication. Any aggravation would on the whole have been present for a matter of hours, with a worst case duration of two to three days. Some protective equipment such as a simple dust mask in the warehouse could have prevented aggravation to some extent there. The majority of his time off was taken in periods when he was basically working in the office. With regard to current fitness for work, I can see no major problem with the work in the office. There would be temporary aggravations of his condition whilst working in dusty areas of the warehouse, however." Under the heading "Prognosis", Dr McGroder said: "He now has chronic sinusitis and established bronchial asthma. He should be able to control this reasonably with medication, but I expect he will still have exacerbations of his condition from time to time." 6 An appeal lies to this Court from a decision of the Administrative Appeals Tribunal only in respect of a question of law. Counsel for the applicant, Mr L T Grey, recognises that the conclusion expressed in para 48 of the Tribunal's reasons is a finding of fact and, therefore, is not reviewable in this Court. He accepts that the Tribunal's conclusion disposes of the primary case put to it by the applicant: his chronic sinus and respiratory condition was caused or contributed to by his working environment. However, Mr Grey says his client also put to the Tribunal an alternative case: even if the chronic sinus and respiratory problems were not caused or contributed to by Mr Bowman's working environment, that environment from time to time exacerbated his symptoms and thereby caused him to lose time from work and incur medical expenses. Mr Grey argues the Tribunal erred in law in failing to consider this alternative case. 7 Counsel for Comcare, Mr P S Jones, does not dispute that a failure by the Tribunal to deal with a case put to it by an applicant, even a case put by way of alternative to the applicant's primary case, may constitute an error of law. But he contends the Tribunal did not fall into this error. In support of that contention he makes a hierarchy of submissions: first, the applicant did not put to the Tribunal an alternative case of temporary aggravation causing incapacity for work; second, even if he did, the evidence did not provide any probable basis for such a claim; third, the Tribunal's finding covers and rejects any such claim. It is convenient to deal separately with each of these submissions, although inverting the order of the first two submissions. Did the evidence raise a case of temporary aggravation? 8 I have already quoted the Tribunal's summary of Dr Lee's evidence. Mr Grey does not dispute the accuracy of that summary, but subject to the important qualification that (as the Tribunal noted) Dr Lee expressly agreed with Dr McGroder's report. Mr Grey says it follows that, to the extent Dr McGroder expressed views in that report more favourable to the applicant's case than those expressed by Dr Lee himself, Dr Lee must be regarded as sharing those views. Mr Grey emphasises that the Tribunal was impressed with Dr Lee. The Tribunal referred to his "pre-eminence in the field of respiratory medicine" and accepted him "as an authority in the field of asthma, both clinically and in research". 9 Furthermore, Mr Grey says, leaving aside Dr Lee, it appears from the last sentence of para 46 that the Tribunal was prepared directly to accept the views expressed in Dr McGroder's report. 10 During the course of his cross-examination before the Tribunal , Dr McGroder was asked about aggravation. He gave this evidence: "What is your opinion in relation to any possible aggravation of the condition?---If it is basically an aggravation of a condition it – aggravation asthmatic and sinus-type conditions are usually pretty temporary. Sometimes hours and as I mentioned before maybe days, but it's usually a very short period. What are the things that are likely to cause any such aggravation?---Well, as I mentioned before it is non-specific eventually. Most constitutional asthmas are non-specific, whereas occupational asthmas start off being very specific, but then develop a non-specificity and anything from dust, or any irritant, or even cold is an irritant. In your opinion, you say a matter of hours or at the worst duration 2 or 3 days is that right?---Correct, yes." 11 In para 5 I quoted the section of Dr McGroder's report dealing with Mr Bowman's fitness for work. In the opening paragraph of that section, Dr McGroder said that Mr Bowman's working environment "would certainly have aggravated the condition". He added: "Some time off work could thus be justified". Mr Grey argues these statements constitute evidence of temporary aggravation potentially leading to incapacity for work. He emphasises Dr McGroder's use of the word "certainly", arguing this amply satisfies the need for evidence of aggravation on the balance of probabilities. 12 Mr Jones submits that the matter of temporary aggravation was "left in the area of possibility or conjecture", to use the words of the Full Court in Treloar v Australian Telecommunications Commission (1990) 97 ALR 321 at 328, and this is not enough. 13 I agree that mere possibility or conjecture would be insufficient to raise an alternative claim of temporary aggravation. But I think it is apparent that two medical experts accepted by the Tribunal were prepared to put the matter of temporary aggravation at a much higher level. The statements made in Dr McGroder's report, affirmed by both Dr McGroder and Dr Lee, and Dr McGroder's oral evidence constitute evidence that suggest, as a matter of probability, from time to time Mr Bowman was temporarily incapacitated for work by reason of the condition of his work environment. Was a case of temporary aggravation put? 14 The next question is whether Mr Bowman put to the Tribunal a case for compensation for incapacity by reason of temporary aggravation of his chronic condition. I think he did. In the course of his address to the Tribunal on behalf of Mr Bowman, Mr Grey said this: "This is one of those cases that does not fit the normal pattern and just because he does not fit the normal pattern is not a reason why he should not be entitled to compensation for a condition which has obviously been very troubling for him. So we say he should get weekly payments, he should get them up until today so [sic] for those times when he is away from work. Even if you felt that some of those periods were excessive then we would submit for each period that he is away from work he should get a substantial portion of that period, for example, in the 9 months period which has been the matter of so much dispute. He was certified unfit for work for the whole of that period, but even if you don't accept that he should get a substantial portion of that period and then when he comes back to work, tries again, goes off, there should be an allowance made for further aggravation." [Emphasis added] It will be noted that, in this section of his address, Mr Grey put three alternative submissions in descending order of magnitude. His first submission, based on the proposition that Mr Bowman's chronic respiratory problem was work-related, was that Mr Bowman should be compensated for all the time he was off work. The second submission, based on the same proposition, was that, if the Tribunal felt some of the periods off work were excessive, "he should get a substantial portion of that period". The third submission was that "there should be an allowance made for further aggravation". Plainly, that allowance would be on the basis that the aggravation itself caused a work-related incapacity, in circumstances where Mr Bowman was not otherwise entitled to compensation. That is the case Mr Grey contends the Tribunal failed to address. Did the Tribunal address the temporary aggravation case? 15 Mr Jones' submission that the Tribunal dealt with the matter of temporary aggravation depends on para 48 of the Tribunal's reasons, quoted in para 4 above. It will be recalled the Tribunal concluded that Mr Bowman's sinusitis and mild bronchial asthma were not "caused, contributed to or in any way permanently aggravated" by his employment. Mr Jones emphasises the words "contributed to" and says this negatives the possibility of incapacity from temporary aggravation. 16 I do not accept that submission. If the Tribunal had thought its reference to contribution covered the matter of aggravation, it would not have referred to permanent aggravation. In drafting para 48, I think the Tribunal had in mind the definition of "disease" in s4 of the Act. That definition reads: "`disease˘ means: (a) any ailment suffered by an employee; or (b) the aggravation of any such ailment; being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation;" It will be noted the definition includes both an ailment that was "contributed to in a material degree" by the employee's employment and an aggravation of an ailment, being an aggravation that was contributed to by the employee's employment. In other words, it covers a work-related aggravation of a nonwork-related ailment. 17 It seems to me that, in para 48, the Tribunal was intending to cover both aspects of the definition. Dealing first with the question whether Mr Bowman's condition fell within para (a) of the definition, the Tribunal held his condition (that is, his ailment) was not one caused, or even contributed to, by his employment. The Tribunal then addressed para (b) by finding there was no work-related permanent aggravation of the nonwork-related chronic condition. This was the purpose of the Tribunal's reference to permanent aggravation. However, para (b) of the definition of disease is not confined to a permanent aggravation; it includes a temporary aggravation. The Tribunal did not make a finding about temporary aggravation. 18 As an alternative to his submission that the subject is covered by the words "contributed to", Mr Jones argues any claim of temporary aggravation must be taken as negatived by the Tribunal's finding about permanent aggravation. However, that submission disregards the presence in para 48 of the word "permanently". Except, perhaps, in the case of an obvious slip, it would be wrong to ignore a qualifying adjective in construing a tribunal's reasons. In the present case, there is no question of an obvious slip. A finding that there was not even a temporary work-related aggravation would be inconsistent with evidence given by witnesses accepted by the Tribunal. Disposition of the appeal 19 That the Tribunal omitted to make a finding about temporary aggravation is, perhaps, understandable. The primary case put to the Tribunal on behalf of Mr Bowman was that his chronic condition was work-related. The claim of work-related temporary aggravation was not only an alternative claim; it was an alternative that received little attention at the hearing. But there was medical evidence to support such a claim and it was mentioned, albeit briefly, in Mr Grey's final address to the Tribunal . That being so, it was incumbent on the Tribunal to examine and determine the issue of incapacity stemming from temporary aggravation. Its failure to do so was an error of law. Having regard to that conclusion, the appropriate course is to set aside the decision of the Tribunal and remit the matter to the Tribunal for further consideration and determination. Remittal does not re-open the primary case put by Mr Bowman, that his chronic condition was caused or contributed to by his employment. The only matter for further consideration is whether temporary aggravation of his nonwork-related chronic condition led to any incapacity or loss compensable under the Act. 20 During the course of submissions there was some discussion as to whether, if there was to be a remittal, the remainder of the matter ought to be determined by a differently constituted panel of the Tribunal. There are arguments for and against that course. However, it is a question I prefer to leave to the President of the Tribunal. 21 I propose to order that the decision of the Administrative Appeals Tribunaldated 10 August 1999 be set aside. I will remit the matter to the Tribunal for further consideration and determination of the question whether the applicant sustained any incapacity or compensable loss as a result of temporary aggravation of his chronic condition of sinusitis and mild bronchial asthma by his employment by the Commonwealth. The respondent must pay the applicant's costs of this application. I certify that the preceding twentyone (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox. Associate: Dated: 11 February 2000 Counsel for the Applicant: L T Grey Solicitor for the Applicant: Carroll & O'Dea Counsel for the Respondent: P S Jones Solicitor for the Respondent: Barker Gosling Date of Hearing: 1 February 2000 Date of Judgment: 11 February 2000