FEDERAL COURT OF AUSTRALIA Rodriguez v Telstra Corporation Limited [2002] FCA 30 ADMINISTRATIVE LAW - appeal from decision of Administrative Appeals Tribunal - whether Tribunal substituted its own opinion for expert evidence - whether Tribunal asked itself correct question - whether Tribunal's decision based on its own view - whether Tribunal's decision supported by probative evidence ADMINISTRATIVE LAW- effect of rules of evidence in Administrative Appeals Tribunal WORKER'S COMPENSATION - compensation for major depressive disorder - whether compensation available pursuant to Safety, Rehabilitation and Compensation Act 1988 - whether disorder arose out of or in the course of employment Statutes Administrative Appeals Tribunal Act 1975 (Cth) s 33 Safety Rehabilitation and Compensation Act 1988 (Cth) s 4 Cases Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Applied Bushell v Repatriation Commission (1992) 175 CLR 408 Referred to Collector of Customs (Tasmania) v Flinders Island Community Association (1985) 60 ALR 717 Followed Comcare v O'Dea (1997)150 ALR 318 Referred to Consolidated Edison Co v National Labour Relations Board (1938) 305 US 197 Referred to McDonald v Director-General Department of Social Security (1984) 1 FCR 354 Referred to Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 Applied Repatriation Commission v Maley (1991) 24 ALD 43 Referred to The King v War Pensions Entitlement Appeal Tribunal Ex parte Bott (1933) 50 CLR 228 Referred to Watts v Rake (1960) 108 CLR 158 Referred to GABRIEL RODRIGUEZ v TELSTRA CORPORATION LIMITED Q164 of 2001 KIEFEL J BRISBANE 25 JANUARY 2002 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 165 OF 2001 ON APPEAL FROM A DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: GABRIEL RODRIGUEZ APPLICANT AND: TELSTRA CORPORATION LIMITED RESPONDENT JUDGE: KIEFEL J DATE OF ORDER: 25 JANUARY 2002 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The decision of the Administrative Appeals Tribunal of 29 June 2001 be set aside and the matter be remitted to the Administrative Appeals Tribunal, differently constituted, for consideration according to law. 3. The respondent pay the applicant's costs. 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 Q 165 OF 2001 ON APPEAL FROM A DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: GABRIEL RODRIGUEZ APPLICANT AND: TELSTRA CORPORATION LIMITED RESPONDENT JUDGE: KIEFEL J DATE: 25 JANUARY 2002 PLACE: BRISBANE REASONS FOR JUDGMENT 1 On 14 October 1999 Spender J made orders in three appeals brought by the applicant from decisions of the Administrative Appeals Tribunal concerning his entitlement to workers' compensation. Two of the decisions concerned a condition relating to the applicant's neck which was said to have arisen out of an incident in which he was involved in the course of his employment. The Tribunal found that the applicant had suffered a naturally occurring degenerative condition and rejected those claims for compensation. The third involved a claim for a major depressive disorder. His Honour ordered that the decision rejecting this claim be set aside and the matter remitted to the Tribunal for further consideration the tribunal decision 2 The Tribunal considered the matter afresh and on 29 June 2001 set aside the decision of the delegate of 17 December 1996, rejecting the claim, and substituted its decision that: "1. sets aside the decision of the respondent dated 17 December, 1996; and 2. substitutes a decision that: (1) the applicant's major depressive disorder is an injury within the meaning of the Safety, Rehabilitation and Compensation Act 1988 from and including 1 July, 1994 up to and including 1 September, 1998; and (2) the applicant was totally incapacitated for work as a result of that major depressive disorder from and including 1 July, 1994 up to and including 1 September, 1998; and 3. adjourns consideration of costs to a date to be fixed." It is the Tribunal's decision that the disorder from which the applicant is suffering was, from 1 September 1998, no longer work-related which is at issue on the appeal. 3 The hearing before the Tribunal involved a number of psychiatrists and other doctors and therapists. The Tribunal found, following the hearing: "The consensus amongst all of the psychiatrists is that Mr Rodriguez is suffering from a major depressive disorder and we so find." although it noted the differences in the medical opinions and in particular whether he suffered from delusional or paranoid thinking. The medical evidence was to the effect that he was to be taken to suffering from the disorder if he was found to be a truthful person. The Tribunal did not find him to be untruthful. It then posed the question for itself: "Did that condition arise out of, or in the course of, his employment so that it is an injury within the meaning of s. 4(1) of the Act?" and answered it: "On the basis of the psychiatric evidence, we find that his condition arose out of his perception of the events in the workplace." And the Tribunal adopted the summary of those events earlier made by Spender J. "There were many aspects of the workplace relationship which, it is said on Mr Rodriguez's behalf, contributed to the onset of his disorder. There was the delay in settling his claims for compensation for medical expenses associated with his neck injury. There was the requirement by his superiors that he resign from the position of floor warden. There was the issue of his signing on in the sign-on book as if he had been at work when he had been at physiotherapy; this was something that he claimed to be entitled to do, but which was disputed by his superiors, and generated much tension. The unhappy relationship which developed between Mr Rodriguez and his superior in the latter half of 1993, included a complaint by Mr Rodriguez that she had singled him out for special attention. There is undisputed evidence that the supervisor approached two other employees of Telstra senior to Mr Rodriguez and told them to keep a special eye on him, and told them that, if the supervisor was on holidays and Mr Rodriguez had a day off, they were to ring her at home so she could drive past his house to check on him. There was the direction by his superiors that the setting up of procedures and systems to do with the handling of enquiries, which work Mr Rodriguez was initially entrusted with, be taken away from him. Mr Rodriguez considered this direction to be a slight on him. There were disputes about the claim by his superiors that he was taking excessive sick leave." (I shall refer to those events as "the incidents" in the balance of these reasons). 4 After dealing with those situations which could amount to reasonable disciplinary action, and which might therefore be excluded under the definition of "injury" for which compensation might be payable (s 4 Safety, Rehabilitation and Compensation Act 1988 (Cth)),the Tribunal went on: "…we are satisfied that his major depressive disorder arose out of or in the course of his employment. His reaction to the incidents we have referred to above might not have been rational to an outsider or might at least have been exaggerated. Despite that, all of them contributed to the development of his major depressive disorder. As Dr Green expressly said and as is implicit in the evidence of Dr Levien, Dr Klug and Dr Reddan, it was probably a condition that developed insidiously over many months. That is to say, there was no particular incident that led to its onset but all did so. The incidents other than that relating to the disciplinary action and the compensation matters arose out of, or in the course of, his employment. Although it is not possible to separate completely the effect of the incidents one from another, we are satisfied from the insidious nature of the onset of the condition that each of the incidents contributed in a material way to that onset. Therefore, Mr Rodriguez suffered an injury within the meaning of the Act." 5 The Tribunal therefore found the incidents to be the causes (or they combined to be "the cause"). That meant it was an "injury" under the Act. 6 It is the next step which the Tribunal took that is the focus of this appeal. The Tribunal found that Mr Rodriguez continues to suffer a major depressive disorder, having first noted that "It is now well over six years since Mr Rodriguez left his employment with Telstra". It then went on to consider the causes of the continuation of the condition: "110. … In that time, Mr Rodriguez has pursued his claim for compensation as he is entitled to do. We are satisfied on the basis of the medical evidence that Mr Rodriguez continues to suffer from a major depressive disorder. In the past six years, however, Mr Rodriguez has not received as much psychiatric treatment as might have been of benefit to him. That is the view of Dr Levien and was expressed in the knowledge that Mr Rodriguez had seen Dr Parmegiani on two occasions while he has been under Dr Erian's care. Dr Levien did not consider that the lack of psychiatric treatment was the ongoing cause of Mr Rodriguez' condition. It was only one of the causes and had to be combined with the nature of the condition, the ongoing litigation and underemployment allowing him time to ruminate on past events. 111. We have thought long and hard about Mr Rodriguez and his illness. At the hearing, his focus was frequently upon the problems brought about by his neck pain. It seems to us that his focus was not upon the other incidents and tensions he felt with his colleagues and supervisors at River Quays and that they were very much at the periphery of his interest. That this is so is consistent with the evidence of Dr Erian whom he has been consulting since September, 1998. In speaking with Dr Erian, we find, Mr Rodriguez did not refer to any incidents at Telstra as the cause of any concern to him. In so far as Telstra was concerned, his focus was upon the pain in his neck and the ongoing compensation claim and appeal process. He made no mention of the other matters to Dr Erian. At some time, possibly 1995, Mr Rodriguez had also found himself able to attend the Bible College and to move his focus away from the events at Telstra. 112. In view of these matters, we have concluded that the factors contributing to his ongoing major depressive disorder are not the incidents and perceived stresses of his employment at Telstra but his neck condition and his compensation action. Neither arises out of, or in the course of, his employment. Just when the work related factors ceased to be relevant is a difficult question. Just as the onset of the condition was insidious, we consider that the change in the reason for its ongoing condition was equally insidious. Whenever the change occurred, we consider that it had happened at some time before he first consulted Dr Erian in September, 1998. Therefore we find that he was no longer suffering an injury within the meaning of the Act on or after 22 September, 1998." Contentions on the appeal 7 The applicant submitted that the Tribunal has, in reality, substituted its own opinion for that of the doctors. All of the doctors, including Dr Reddan, who was called by the respondent to the hearing before the Tribunal, identified the incidents and the conflict they represented to the applicant as causing or precipitating the applicant's depressive condition. Having found cause to be established, it was necessary for Telstra to establish a new, intervening cause: Watts v Rake (1960) 108 CLR 158. It had not done so. All that had occurred was that the Tribunal came to a view on its own. 8 Viewed another way, the conclusion was unsupported by any evidence, it was submitted. Dr Erian's evidence was only to the effect that no mention was made by the applicant of the incidents and did not extend to an opinion as to cause. If the Tribunal made a finding that he attended Bible School in 1995 this could only be based on the notes of the occupational therapist, Ms Murphy as to what the applicant had told her. The applicant denied that he had nominated that year and said that he had in fact attended the course much earlier before he worked for Telstra. The applicant points out that Dr Green was seeing him in June 1995 which is consistent with him then being in Townsville. 9 The applicant submits that, given its concerns, the Tribunal should have asked itself whether there was another cause for the ongoing condition. There was no medical evidence suggesting a change in the cause for the depressive illness. The Tribunal had simply decided that for itself, based upon what the applicant did not complain about to Dr Erian. It was also submitted that such an hypothesis was not put to the doctors called by the applicant, as procedural fairness requires. 10 The respondent's principal submission is that matters of proof and causation, usual in a purely adversarial system, do not apply to the Tribunal: Comcare v O'Dea (1997)150 ALR 318, 322; Bushell v Repatriation Commission (1992) 175 CLR 408, 424-425; McDonald v Director-General Department of Social Security (1984) 1 FCR 354, 356. THE MEDICAL EVIDENCE 11 Dr Green was the first psychiatrist to whom the applicant was referred. He saw him between June 1994 and October 1995. Dr Green explains in his reports how he came to diagnose a major depressive disorder on the second occasion the applicant consulted him. In his view the disorder developed as a consequence of the applicant's preoccupation with supposed injustices he felt in the treatment of him by Telstra, a reference to the incidents. When asked, in cross-examination by the respondent's counsel, whether he would expect the applicant's condition to improve since he had been away from Telstra since May 1994, the doctor said that it was possible but that it was obvious that the applicant has a "considerable amount of unfinished business" with Telstra. He agreed that it was unlikely to be a permanent condition, but the degree of recovery may not be complete. Such a condition often remains as a chronic fluctuating disorder, but improved over its original state. Dr Green said nothing about changes to the causes of the illness or its perpetuation. 12 The witness who had been called prior to Dr Green was Dr Levien, who provided a report dated 16 September 1996. The doctor had been provided with two reports from each of Drs Reddan and Klug, to which reference will shortly be made. Dr Levien also diagnosed a major depressive disorder and gave as a cause the applicant's dispute with Telstra. In his view the depression was entrenched and perpetuated by lack of money, unemployment and the applicant's belief that he had suffered injustice. The reasons given by Dr Levien as to why the applicant did not get better are summarised in part in paragraph 110 of the Tribunal's reasons set out above. In addition to the insufficiency of psychiatric treatment, Dr Levien considered that people such as the applicant become fixated on a period in their life; the applicant felt he had been denied justice and the litigation process required him to go over the events which had caused his anxiety. The doctor expected that the applicant might improve, but not get better. 13 The last of Dr Klug's four reports is dated 26 September 2000. Telstra first referred the applicant to the doctor in September 1995. In his view the probable cause of the applicant's condition was a chain of events starting with his neck and back injury and following events. The applicant felt that he was persecuted by Telstra for seeking compensation. The doctor said that the work factors had contributed in a material degree to his condition and went on to say that he did not believe any factor other than those so contributed. 14 Cross-examination of the doctor was focussed largely upon his views about the possibility that the applicant was malingering, as it was with other doctors. The source of this was a second report of Dr Reddan. Dr Klug was asked about the applicant's prospects of improvement, but not about whether the condition continued because of other, newer causes and the doctor had offered no opinion on that topic. He did say that he did not think that the applicant was quite so preoccupied with Telstra and did not think about it all the time, as he had six months before. Given that first date of the Tribunal hearing was March 2001, I take it the doctor is referring to his last consultation in about September 2000. He believed however that the applicant would remain suspicious of Telstra. He had a constant hate and anger against it. 15 None of the doctors called by the applicant gave evidence about any change in the cause for the applicant's condition. Dr Reddan, who was called for the respondent and was the last medical witness, did not herself volunteer such an opinion. The topic arose in re-examination of the doctor. She gave her evidence at the adjourned hearing of the Tribunal in May 2001. 16 Dr Erian, the applicant's general practitioner, gave evidence that the applicant had seen him since September 1998. By March 1999 he commenced treating the applicant for depression and referred him to Dr Parmegiani whom the applicant saw on one or more occasions. He treated him for other conditions. When asked whether he considered the effects of the Court case were likely to produce depressive symptoms, the doctor agreed or assumed that would be the case. The doctor then listed other factors which he considered added to the applicant's feelings of depression: his pain, lack of sleep, the loss of his job and his inability to support his family. The applicant had mentioned the accident which produced his neck injury, but made no mention of the incidents as affecting his well-being. By the time this was elicited from Dr Erian, all but Dr Reddan amongst the psychiatrists had given their evidence. 17 Dr Reddan interviewed the applicant on 30 May 2000. For present purposes it is not necessary to recount Dr Reddan's evidence as to the likelihood that the applicant was exaggerating his condition. In her opinion, if he was believed, the applicant had developed a major depression and was predisposed to it. The precipitant to it was the conflict with his managers and supervisors. It is possible that his perception of pain altered as he became depressed. She formed the opinion that he suffered from chronic depression. In re-examination, over objection as a matter not arising from cross-examination, it was put to the doctor that the applicant's general practitioner had not been told anything by the applicant about work-related factors apart from his injury. She was then asked: "Now, given that history of consultation with the general practitioner, are you able to draw any conclusions as to the significance of Mr Rodriguez's conflict with his managers and work supervisors and the other work related matters, not the neck incident, the other work related matters, to his psychiatric condition?" And the doctor replied: "Well, the first comment I would make is that I wasn't aware Mr Rodriguez was suffering from sleep apnoea which is quite important because it perpetuates neuro-vegetative disturbance and depression, so that is something that stuck in my mind. But the fact that there's no mention of work conflict or I think Mr Rodriguez tends to call it, well he did to me, harassment or persecution, would suggest that it's perhaps that part of that's no [sic] longer foremost in his mind and that there are other factors or other matters that are foremost in his mind in relation to his depression, that that's kind of faded over time as being what is most significant to him and that it's all these other many matters, and that the neck is still obviously an ongoing problem. And indeed, Mr Rodriguez had told me too of some concerns about his ingestion of Panadeine Forte and his discussions with his GP about that." 18 Dr Reddan was then asked whether the work-related factors could be considered as relevant since 1998, given what Dr Erian was not informed about. She said "Dr Erian has seen Dr Rodriguez on quite a number of occasions, had lengthy discussions, and it's not come up at all, obviously it's perhaps not still impacting in his mind - in Mr Rodriguez's mind, sorry, as a significant ongoing problem or ongoing pre-occupational rumination even as a symptom of depression. So that it's perhaps the conflict issues or the harassment issues have long since faded." 19 Senior counsel for the applicant did not seek to further cross-examine the doctor upon that evidence. conclusions on the appeal 20 The Tribunal found, as a fact, that the applicant did not discuss the incidents with Dr Erian. From this it inferred that he was no longer concerned about them and as such they no longer explained the continuation of his condition. There were two causes which now accounted for it: his pain and the ongoing compensation claim. 21 No doctor had expressed the opinion the Tribunal arrived at. Each had identified the incidents, which were work-related, as the cause of a disorder which continued. Dr Reddan did not say that the incidents should be taken as no longer affecting the applicant or that her opinion as to cause was completely changed because of what she had been told. The doctor did not provide an opinion that there were now two different factors which accounted for the continuation of the disorder. Dr Reddan was not asked such questions. Unsurprisingly perhaps the Tribunal did not refer to the answers given by Dr Reddan, as far as they went, when summarising her evidence. Contrary to the respondent's submissions: it did not seek to rely upon what the doctor said as the basis for its opinion. The Tribunal did refer to Dr Erian's evidence, but only that it confirmed its opinion that the applicant's focus was not upon the incidents. Dr Erian was not an expert in the field and had not given an opinion in the terms found by the Tribunal, excluding the incidents altogether as currently operative. 22 No other doctor was questioned about the non-reporting of the incidents to Dr Erian. Their evidence proceeds upon a factual basis which included their own observation of and discussions with the applicant. It is not possible to conjecture whether their views might have been affected by the additional facts. Much might depend upon an understanding of the disorder from which the applicant suffered. In that respect Dr Green had said that the applicant tends to camouflage his depression and focus on physical or psychological symptoms. This tends to highlight the complexity of the task, one which requires expert psychiatric evaluation. 23 It was submitted for the respondent that the absence of a complete history undermined the evidence of the applicant's psychiatrists. This misstates the position. Their opinions stand, albeit that they are based upon the facts to which they had regard. It should not be assumed that the doctors could have no opinion, because they had not seen the applicant for some time. Dr Klug in particular had seen him about six months prior to the hearing and during the time when the applicant was attending Dr Erian. 24 It was also submitted for the respondent that the Tribunal was able to come to the view it did because one of its members was medically qualified. If the Tribunal did act upon the medical opinion of one of its members it did not state this. In any event if a view is formed by a Tribunal which goes beyond the opinions expressed by the experts in evidence, fairness requires that it be disclosed and the parties permitted an opportunity to address it. In the present case I do not think that it can be said that the evidence of Dr Reddan or Dr Erian would have alerted the applicant's legal representatives to the need to recall the experts. 25 The Tribunal is not bound by the rules of evidence (s 33 Administrative Appeals Tribunal Act 1975 (Cth)) and may inform itself in such a manner as it thinks appropriate. This does not mean that the rules of evidence are to be ignored. The more flexible procedure provided for does not justify decisions made without a basis in evidence having probative force: Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482, 492, referring to Consolidated Edison Co v National Labour Relations Board (1938) 305 US 197, 229; The King v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228, 256. The drawing of an inference without evidence is an error of law: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355-356; Repatriation Commission v Maley (1991) 24 ALD 43 (Full Court). Similarly such error is shown when the Tribunal bases its conclusion on its own view of a matter which requires evidence. In Collector of Customs (Tasmania) v Flinders Island Community Association (1985) 60 ALR 717, 722 a Full Court of this Court held that it was unjustifiable, and therefore legally erroneous, for a Tribunal to base its conclusion upon its own understanding of traditional aboriginal concepts of community ownership and interests, in the absence of any evidence on the matter. 26 It may be said that expert evidence is sometimes over-utilised and is called in situations where an arbiter of fact is in a position to determine the matter for itself. Sometimes all that is necessary is for a method or process to be explained, so that the Court or Tribunal can then apply it to the facts it finds. On the other hand, there are cases where a whole question is, in effect, relegated to experts to give evidence upon it. This was such a case. The Tribunal was not put in a position where it could simply draw its own inferences. In an area which required an understanding of a disorder it could only receive the opinions, have the bases for them explained if they differed and apply logic to determine which were to be accepted. 27 Given my view as to the need for expert medical opinion on the topic, it is not necessary for me to consider the balance of the Tribunal's reasoning. It was certainly open to the Tribunal to consider the focus of the applicant's evidence, if it had guidance from the medical evidence as to what to make of it, given the applicant's condition. The fact that he might have attended a Bible College after the accident, was only relied upon by the Tribunal as supporting its view that he had moved away from his preoccupation with Telstra. I say nothing of the likelihood that the event occurred as it was reported to the occupational therapist. Neither of these other aspects of its reasoning can support the conclusion reached. 28 In my view the Tribunal's decision to limit the period of compensation was not supported by probative evidence. Error of law is shown. Additionally, it was obliged to disclose its concerns or its provisional opinion and allow the parties to deal with it. It did not do so. 29 The appeal is allowed with costs. The decision below is set aside and it is ordered that the matter be remitted to the Tribunal, differently constituted, for reconsideration. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel. Associate: Dated: 25 January 2002 Counsel for the Applicant: Mr C Hampson QC Solicitor for the Applicant: Shine Roche McGowan Counsel for the Respondent: Mr R Dickson Solicitor for the Respondent: Standish Partners Date of Hearing: 4 December 2001 Further Submissions: 11 and 14 December 2001 Date of Judgment: 25 January 2002