Bone and Australian Postal Corporation (Compensation) - [2020] AATA 5104

Bone and Australian Postal Corporation (Compensation) [2020] AATA 5104 (17 December 2020)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL              )
  )  No: 2016/0193
GENERAL DIVISION  )
Re: David Bone
Applicant

And: Australian Postal Corporation
Respondent
DIRECTION
TRIBUNAL:  A G Melick AO SC, Deputy President
DATE OF CORRIGENDUM:            4 May 2021
PLACE:           Hobart

The Tribunal DIRECTS:

That the corrigendum of 30 April 2021 and 3 May 2021 are revoked; and

The Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, is directed to alter the text of the decision in this application as follows:

At paragraph 58, ‘104’ is replaced with ‘28’.

At paragraph 32, the text ‘which was paid for by Australia Post’ and ‘because it was too expensive’ is deleted.

At paragraph 34, ‘compensation’ is replaced with ‘sick leave’.

At paragraph 77, the text ‘not only could he not afford to see a psychologist, but’ is deleted.

The Tribunal notes the submissions made by Mr Bone and counsel for the Respondent and appreciates the effort made by both parties. The Tribunal has taken the time to review the evidence and notes that it is not straightforward.
.............................[sgd]......................................

A G Melick AO SC, Deputy President
Division:GENERAL DIVISION
File Number:2016/0193
Re:David Bone
APPLICANT

AndAustralian Postal Corporation
RESPONDENT

DECISION
Tribunal:A G Melick AO SC, Deputy President
Date:17 December 2020
Place:Hobart

The Tribunal affirms the decision under review.
[sgd]........................................................................
A G Melick AO SC, Deputy President
COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 - whether the Applicant suffered an injury defined by the Act – was the injury a disease as defined by the Act – was the disease significantly contributed to by employment – result of reasonable administrative action – was the action undertaken in a reasonable manner – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Racial Discrimination Act 1975
Safety, Rehabilitation and Compensation Act 1988
Cases
Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC 16 [79]
Comcare v Martin [2016] HCA 43
Comcare v Martinez [2013] FCA 439
Comcare v PVYW [2013] HCA 41
Drenth v Comcare [2012] FCAFC 86
Federal Broom Company Pty Ltd v Semlitch [1964] HCA 34
Georges and Telstra Corporation [2009] AATA 731
Humphrey Earl Ltd v Speechley (1951) 84 CLR 133
JQWK and Comcare [2017] AATA 1965
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42
O’Loughlin v Linfox Australia Pty Ltd [2015] FCA 1000
Perry and Australian Postal Commission [2005] AATA 712
Prain and Comcare [2014] AATA 593
Re Jones and Comcare [2013] AATA 334
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
RSBQ and Comcare [2017] AATA 1965
Telstra Corporation Ltd v Bowden [2012] FCA 576
Wiegand v Comcare [2002] FCA 1464
Secondary Materials
Australian Transport Council Standards
REASONS FOR DECISION
A G Melick AO SC, Deputy President
17 December 2020
BACKGROUND

The Applicant commenced work with the Respondent in August 2007 as a permanent part-time postal transport officer at the Hobart Mail Centre with rostered…

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: [2020] AATA 5104
Decision Date: 17 December 2020

CaseChat Overview and Summary

This matter concerned an appeal by the Applicant, Mr Bone, against a decision of the Respondent, the Australian Postal Corporation, to deny his claim for workers' compensation. The Applicant had claimed an injury sustained on 22 April 2013, which he alleged arose out of or in the course of his employment. The Respondent had initially denied liability for this claim on 22 October 2015. The appeal was heard by A G Melick AO SC, Deputy President.

The legal issues before the court were whether the Respondent's administrative action in denying the Applicant's workers' compensation claim was carried out in a reasonable manner, and consequently, whether the decision under review, which affirmed the denial of liability, should be upheld. The court was required to consider the evidence presented by both parties, including medical reports and the Applicant's own testimony regarding his work-related stress and subsequent incapacity.

The Deputy President found that the administrative action taken by the Respondent was reasonable. This conclusion was based on the evidence presented, particularly the medical certificates and the timeline of events. The Deputy President noted that while the Applicant experienced distress and sought medical attention, including a medical certificate for incapacity from 29 October 2015, the initial denial of liability for the claimed injury on 22 October 2015 was part of a process that was ultimately affirmed on review. The Deputy President's reasoning focused on the reasonableness of the administrative process itself, rather than a detailed re-examination of the original claim for injury.

The decision under review was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Respondent further submitted:[50] On 21 October 2015, the Applicant attended Dr Pitt reporting ‘upset problem at work, insomnia, [indecipherable] anxiousness, mind preoccupied, seen by Dr Klonaris, prescribed Temaze at night, Court case pending, anti-discrimination, April 2013, can’t drive truck, didn’t meet standards but hasn’t changed. Dr Pitt noted talk with Applicant and discussed options. No medication was prescribed or medical certificate certifying incapacity for work was issued (Exh 15 pg 1). In oral evidence Dr Pitt said the Applicant reported being tense, anxious, preoccupied when he saw him on 21 October 2015 (Tr. Pg 132).[51] On 22 October 2015 liability was denied for the Applicant’s claim for head injury sustained 22 April 2013 (T10). The Applicant received this Determination by mail on the 28 October 2015.[52] On 28 October 2015, the Applicant attended a telephone conference/mediation in the Federal Court proceedings. The Applicant suffered what has been described as a ‘panic attack’ (Dr Loftus Tr. Pg 169). The Applicant contacted the Respondent seeking time off work, at this time he was advised that his claim for workers’ compensation had been rejected. The Applicant says when he arrived home he received the letter dated 22 October 2015 denying liability for his workers’ compensation claim.[53] On 29 October 2015, the Applicant attended Dr Pitt reporting he had a ‘teleconference yesterday – upset him, tense agitated, anxiousness, insomnia broken pattern. Spoke to work manager Peter Richardson 1 day ago workers’ compensation claim denied’. Dr Pitt provided a medical certificate certifying incapacity for work from 29 October 2015 (Exh 15 pg 2) (T19 pg 48).[54] On 16 December 2015, a Reviewable Decision was made affirming the Determination dated 22 October 2015 denying liability pursuant to s14, s16 and s19 of the SRC Act for the claimed injury sustained 23 April 2013 (T20).[55] In December 2015, the Applicant discontinued the Federal Court proceedings against the Respondent and on 12 January 2016 a formal Order was made to this effect in matter No LNG14/2015.[56] Dr Pitt has continued to provide medical certificates certifying incapacity for work from 29 October 2015 to the present date.THE APPLICANT’S EVIDENCE The Applicant’s evidence consisted of a witness statement dated 24 August 2017 which he adopted at the hearing. As he made extremely detailed closing submissions covering all the evidence, and noting the facts set out in paragraphs [1] to [21] above, at this stage I will summarise his evidence as follows: It was a requirement that employees had to pass an eye test check every two years (although I note that the Applicant’s checks seemed to be every three years) and on 22 March 2013 he attended upon the FND, Dr Tim Barnes, for the required eye test to enable him to continue driving HRVs. At the time of his commencement with Australia Post, the Applicant’s test indicated that his right eye just met the required standard at 6/18, but his left eye was well within limits.

Decision

Reasons for decision

Accordingly, I find that the administrative action was carried out in a reasonable manner.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

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