BITUIN and AUSTRALIAN POSTAL CORPORATION - [2011] AATA 571

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 571
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/0807

GENERAL ADMINISTRATIVE DIVISION )

Re JULIETA BITUIN

Applicant

And

AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Senior Member Egon Fice
Date18 August 2011
PlaceMelbourne

Decision
The Tribunal sets aside the reviewable decision and remits the matter to Australian Postal Corporation to calculate the compensation to which Mrs Bituin is entitled under s 14 and s 16 of the Safety, Rehabilitation and Compensation Act 1988.

Australian Postal Corporation shall pay Mrs Bituin’s costs of this application in an amount agreed by the parties; or in the event that the parties cannot agree, as taxed by the Tribunal.

..........[sgd] Egon Fice.............
Senior Member

COMPENSATION – Mail officer – Employment with Australia Post – Manual sorting – Melbourne parcel facility – Reasonable medical treatment – Lower spine – Shoulders – Neck – Injury – Incapacity payments – Wilful and false misrepresentation – Aggravation of an existing disease – Aggravation of an existing ailment – Motor vehicle accident - Injury simpliciter – X-ray – Ultrasound – Reasonable medical expenses
Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 5A, 5A(1)(b), 5B, 6(1), 7, 7(7), 14, 16, 19(4)
Accident Compensation Commission v McIntosh [1991] 2 VR 253
Comcare Australia v Porter (1996) 70 FCR 139
Iannella v French (1968) 119 CLR 84
Kennedy Cleaning Services Pty Limited v Petkoska (2000) 200 CLR 286
Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310
Taber’s Cyclopaedic Medical Dictionary (17^th ed, 1993)
REASONS FOR DECISION

18 August 2011 Senior Member Egon Fice

1. Mrs Julieta Bituin commenced working with Australian Postal Corporation (Australia Post) in April 1997 as a mail officer. In October 2009 she was working at the Melbourne Parcel Facility which deals with parcels, and not letters. She was sorting parcels manually, a task reserved for large parcels which do not fit into the parcel machine, by removing parcels from a unit load device (ULD). Mrs Bituin suddenly experienced severe pain in each of her shoulders, neck and lower back when lifting a parcel. Mrs Bituin completed an Incident Report in which she stated that the accident occurred at 1.02am. She reported the incident immediately, seeking initial treatment which was provided by Ms Samantha Kuhl at 1.10am. The incident was witnessed by Ms Anna Koster. The incident was also reported to Mr Michael Davey, Mrs Bituin’s supervisor, at 1.10am.
2. Mrs Bituin lodged a claim for rehabilitation and compensation under s 19(4) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) on 24 November 2009. That claim form also contained a statement by Mr Shane Kiernan, who described himself as Ops Support Mgr, verifying that the circumstances of the claim as asserted by Mrs Bituin were substantially correct.
3. In a letter dated 22 December 2009, Australia Post informed Mrs Bituin that it denied liability for the injuries to her shoulders, neck and back. On 11 January 2010 Mrs Bituin requested…

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.

Continue reading BITUIN and AUSTRALIAN POSTAL CORPORATION

Details

AGLC: BITUIN and AUSTRALIAN POSTAL CORPORATION [2011] AATA 571
Case: [2011] AATA 571
Decision Date: 18 August 2011

CaseChat Overview and Summary

The matter involved Mrs Bituin, an employee of Australia Post, who was engaged in manual sorting work at the Melbourne parcel facility. Mrs Bituin contended that she sustained injuries to her lower spine, shoulders, and neck, leading to a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988. The Australian Postal Corporation contested the claim, arguing that Mrs Bituin's injuries were not work-related and that she had failed to disclose a motor vehicle accident that could have caused her injuries. The dispute reached the tribunal to determine whether Mrs Bituin's injuries were caused by her employment and whether the Australian Postal Corporation was liable for compensation.

The primary legal issue before the tribunal was whether Mrs Bituin's injuries were sustained due to her employment and thus covered by the Safety, Rehabilitation and Compensation Act 1988. Additionally, the tribunal had to decide if the Australian Postal Corporation was liable for compensation, despite Mrs Bituin's failure to disclose a motor vehicle accident that could have contributed to her injuries. Another significant issue was whether the injuries were aggravated by her employment or if they were a result of the motor vehicle accident.

The tribunal found that Mrs Bituin's injuries were sustained during the course of her employment, and the Australian Postal Corporation was liable for compensation. The tribunal concluded that Mrs Bituin's failure to disclose the motor vehicle accident did not negate the fact that her employment aggravated her existing ailments. The tribunal also found that the Australian Postal Corporation's failure to provide reasonable medical treatment contributed to the aggravation of Mrs Bituin's condition. Consequently, the tribunal set aside the reviewable decision and remitted the matter to the Australian Postal Corporation to calculate the compensation to which Mrs Bituin was entitled.

The tribunal ordered that the Australian Postal Corporation pay Mrs Bituin’s costs of this application in an amount agreed by the parties. If the parties could not agree on the costs, the tribunal would tax the costs. This decision underscores the importance of employers providing reasonable medical treatment to employees who sustain work-related injuries and the potential consequences of failing to do so.

Orders

Orders of the court

The Tribunal sets aside the reviewable decision and remits the matter to Australian Postal Corporation to calculate the compensation to which Mrs Bituin is entitled under s 14 and s 16 of the Safety, Rehabilitation and Compensation Act 1988.

Australian Postal Corporation shall pay Mrs Bituin’s costs of this application in an amount agreed by the parties; or in the event that the parties cannot agree, as taxed by the Tribunal.

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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GENERAL ADMINISTRATIVE DIVISION		)
Re		JULIETA BITUIN