Bennett and Australian Postal Corporation - [2003] AATA 859

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 859
ADMINISTRATIVE APPEALS TRIBUNAL ) A2002/263, A2002/278,
)A2002/345, A2002/381,

GENERAL ADMINISTRATIVE DIVISION ) A2003/93

Re ROBERT BENNETT

Applicant

And

AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Mr S. Webb, Member
Date2 September 2003
PlaceCanberra

Decision
A2002/263

1. The decision under review is set aside and in substitution therefor the Tribunal decides that the Applicant’s employment materially contributed to aggravate or accelerate his constitutional lumbar spine condition in relation to which the Respondent is liable to pay compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 on and after 20 February 2002.

A2002/278

2.      The decision under review is affirmed.

A2002/345 and A2002/381

3.      The decisions under review are set aside. The Tribunal decides the Applicant was totally incapacitated for work from 18 July 2002 until 30 August 2002 inclusive.

A2003/93

4.      The decision under review is set aside. The Tribunal decides that the Applicant’s employment materially contributed to cause, aggravate or accelerate the condition of major depression.

5.      The matter is remitted to the Respondent to calculate the Applicant’s correct entitlement to compensation in accordance with these reasons.

6.      The Respondent is to pay the Applicant’s reasonable costs as taxed or agreed in accordance with the Tribunal’s General Practice Direction.

...........(sgd)...................................
Mr S. Webb, Member

19. On 7 June 2002 the Respondent accepted liability to pay compensation in relation to “right inguinal hernia”, the date of injury being 20 February 2002, and stated (AT32):
“The reports of Dr Whittaker and Dr Davis make it clear that your hernia is not preventing you from attending work and performing light duties, which can be made available by the Mail Centre. Dr Whittaker does not put any restriction on your work hours, but Dr Davis recommends 2-4 hours per day. … It would appear from Dr Shroot’s certificates that the main factor contributing to your incapacity during this period was your non-compensable back condition. … To formalise the matter, I issue the following determination:
“From 3/5/02 to a date to be determined, compensation under section 19 of the Act shall be calculated on the basis that you are able to earn in suitable employment for four hours per day (20 hours per week). This means that, regardless of the amount you have actually earned, you will be regarded, for compensation purposes, as having earned 20 x your base hourly salary each week from 3/5/02.””

20. On 19 June 2002 an APRO affirmed the decision dated 16 May 2002 (AT37), in response to a request for reconsideration by the Applicant on 14 June 2002 (AT35), observing:
“In his report of 6 May 2002 Dr R. Whittaker considered that Mr Bennett did not present with any work related back condition. …
… Dr Davis does not consider Mr Bennett has a work related back condition.
In his report of 28 March 2002 Dr A. Shroot writes that “it makes sense that the pain in the back and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] AATA 859
Decision Date: 2 September 2003

CaseChat Overview and Summary

In the matter of Bennett versus Australian Postal Corporation, the applicant sought compensation for a range of back, hip, and leg conditions, as well as major depression, which he claimed were caused or exacerbated by his employment. The case was heard by the Administrative Appeals Tribunal in Australia. The primary dispute involved whether the applicant's conditions constituted an injury for which the respondent was liable, whether the injury had ceased, and if the applicant was entitled to compensation under the relevant legislation.

The tribunal examined whether the applicant's employment materially contributed to his lumbar spine condition, back, hip, and leg conditions, and major depression. The legal issues also encompassed determining the date when the applicant became totally incapacitated for work and whether the respondent's liability for compensation extended to these conditions. The tribunal needed to decide on the proper calculation of the compensation payable to the applicant.

In its decision, the tribunal found that the applicant's employment materially contributed to his lumbar spine condition, back, hip, and leg conditions, and major depression. It set aside prior decisions and ruled that the respondent was liable to pay compensation for the lumbar spine condition from a specific date. The tribunal also found that the applicant was totally incapacitated for work for a particular period and set aside decisions regarding this period. The tribunal remitted the matter to the respondent for the calculation of the correct compensation entitlement. The respondent was ordered to pay the applicant's reasonable costs.

Orders

Orders of the court

A2002/263

1. The decision under review is set aside and in substitution therefor the Tribunal decides that the Applicant’s employment materially contributed to aggravate or accelerate his constitutional lumbar spine condition in relation to which the Respondent is liable to pay compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 on and after 20 February 2002.

A2002/278

2. The decision under review is affirmed.

A2002/345 and A2002/381

3. The decisions under review are set aside. The Tribunal decides the Applicant was totally incapacitated for work from 18 July 2002 until 30 August 2002 inclusive.

A2003/93

4. The decision under review is set aside. The Tribunal decides that the Applicant’s employment materially contributed to cause, aggravate or accelerate the condition of major depression.

5. The matter is remitted to the Respondent to calculate the Applicant’s correct entitlement to compensation in accordance with these reasons.

6. The Respondent is to pay the Applicant’s reasonable costs as taxed or agreed in accordance with the Tribunal’s General Practice Direction.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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