Borg and Australian Postal Corporation

[2003] AATA 221

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 221

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/509

GENERAL ADMINISTRATIVE DIVISION		)
Re		DENNIS BORG

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member
Dr M E C Thorpe, Member

Date7 March 2003

PlaceSydney

Decision The tribunal affirms the decision under review.  The applicant is entitled to no costs associated with this application.

...................[Sgd]..................

Senior Member

CATCHWORDS

WORKERS' COMPENSATION – musculoligamentous pain in right elbow, arm and shoulder – whether liability to pay compensation ceased – no evidence to support continuation of injury after date of cessation of liability

EVIDENCE – expert evidence – requirement for expert to identify facts or assumptions of fact on which expert evidence is based 

Safety, Rehabilitation and Compensation Act 1988 ss 4(1) (“injury”), 14(1), 16

Casarotto v Australian Postal Commission (1989) 86 ALR 399

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

REASONS FOR DECISION

7 March 2003 Mr M J Sassella, Senior Member
Dr M E C Thorpe, Member           

APPLICATION

1.      Dennis Borg (“the applicant”), born 29 February 1960 (T1), has applied to the Administrative Appeals Tribunal (“the tribunal”) for review of a decision of a delegate of the Australian Postal Corporation (“the respondent”) dated 8 April 2000 (T13).  That decision varied an earlier decision dated 8 March 2002 (T11).  The reviewable decision was that the respondent was liable under the Safety, Rehabilitation and Compensation Act (“the Act”)[1] to pay the applicant’s medical expenses in respect of musculoligamentous pain of the right elbow and shoulder, the date of injury being 18 February 2002, but with liability ceasing on 24 February 2002.

[1]

HEARING

2.      The tribunal convened a hearing in this matter in Sydney on 11 December 2002.  The applicant represented himself.  Mr G Johnson of counsel represented the respondent.  The tribunal heard oral evidence from the applicant The tribunal took into evidence and marked as exhibits the following documents:

Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1 – T15) provided by the respondent.

Exhibit A1 – Medical certificate from Dr S Soliman, 24 July 2002.

Exhibit A2 – Applicant’s claim for compensation for permanent impairment, 9 October 2002.

Exhibit A3 – Applicant’s Australia Post training records.

Exhibit A4 – Report by Dr M Liew, rheumatologist, 6 November 2002.

Exhibit R1 – Respondent’s statement of facts and contentions, 3 September 2002.

Exhibit R2 – Dr Soliman’s clinical notes.

RELEVANT LAW

3. The Act provides in s 14(1) that an applicant such as Mr Borg is to be paid compensation if he or she has suffered an injury that has resulted in incapacity for work or impairment. The Act defines an injury in an extensive fashion in s 4(1):

injury means:

(a) a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee,

being a physical or mental injury arising out of, or in the course of, the employee's employment; or

(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;

4.      In the present case the applicant was arguing that his work for Australia Post had caused him a direct injury, notably to his right elbow and shoulder. 

5.      On the question of whether a party before the tribunal bears an onus of proof, Hill J in the Federal Court summarised the position in Casarotto v Australian Postal Commission (1989) 86 ALR 399, 412-413:

“In McDonald v. Director General of Social Security (1984) 1 FCR 354 Woodward J.. in the context of social security legislation counselled against using the expression ‘onus of proof’ where an application comes to the Administrative Appeals Tribunal for review. Of course, where a statutory provision such as s.190(b) of the Income Tax Assessment Act 1936 deals with the matter specifically there is no difficulty. The Administrative Appeals Tribunal is bound by s.43 of the Administrative Appeals Tribunal Act 1975 to carry out the review by placing itself in the shoes of the administrator, although it considers the matter having regard to the material before it rather than the material that was originally before the administrator. Since the tribunal is obliged to inform itself on any matter in such manner as it thinks appropriate (s.33(1)(c)) and is not bound as such by the rules of evidence, it is obvious that there may be difficulties if principles such as onus of proof applicable in proceedings before courts are strictly adopted.

“It may be that what was said by Woodward J. in McDonald should be confined to the context of social security legislation. Thus in Minister for Health v. Thomson (1985) 60 ALR 701 at 712 Beaumont J, referring to proceedings before the Medical Services Committee established under the Health Insurance Act 1973 (Cth) said:

‘Generally speaking, concepts of onus of proof used in adversary proceedings are inapplicable in administrative proceedings in the social security area: see McDonald v. Director-General of Social Security (1984) 1 FCR 354. However, where, as here, a breach of discipline, or something analogous, is alleged, the onus of proving such a breach lies upon the accuser. The general position is explained by Professor Enid Campbell in Principles of Evidence and Administrative Tribunals, published in Campbell and Waller (ed) "Well and Truly Tried", Monash Studies in Law (1982) p 53:

"There may be legal burdens of proof to be discharged in administrative proceedings just as much as there are legal burdens of proof in purely judicial proceedings. Sometimes the incidence of the burden of proof is spelled out by legislation, but more often than not it is simply implied in the nature of the proceedings. If, for example, entitlement to grant of a licence or benefit depends on proof that certain qualifications have been met, the burden of proving the relevant facts going to qualifications must fall upon the applicant. Similarly, where the issue to be decided is whether circumstances have arisen which would justify cancellation or suspension of a licence, or a finding that a breach of discipline had occurred, the onus of proving that these circumstances have arisen would devolve on the accuser. This would be so, notwithstanding that the accuser was also, of necessity, the person or body having authority to adjudicate."’

“Nevertheless, as a practical matter, an applicant for review in the tribunal in a case such as the present is asserting a claim for a right to compensation (cf. Vulic v.Capital Territory Health Commission (1982) 5 ALD 35 at 38 per Morling J.) and ultimately the tribunal, in considering the claim, can only act on the evidence before it; to do otherwise would be to commit an error of law. Thus in a practical sense, if not in a strict legal sense, it will be the responsibility of an applicant for review to ensure that there is laid before the tribunal all material which it will be necessary for the tribunal to have before it to enable it to come to a decision. Where, as here, material necessary to an applicant's case is not laid before the tribunal (and the reason for it not being put before the tribunal was that to do so would have been inconsistent with the applicant's case that there had been no recovery and that compensation should continue indefinitely) the applicant will not be able to complain if the tribunal, doing the best it can with the evidence before it, reaches a conclusion which is adverse to the applicant.”

6.      In the present case there is an evidentiary onus on Mr Borg to explain why liability should extend beyond 24 February 2002.

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

7.      Mr Borg commenced work with the respondent on 12 September 1988 (ex R1).

8.      He suffered a compensable injury when working for the respondent on 18 February 2002.  He has been compensated for that injury in respect of incapacity payments and medical expenses referable to the short period from 18 to 24 February 2002.

9.      Mr Borg confirmed in evidence that he returned to work on his normal duties on 25 February 2002.

10.     There was only one medical certificate before the tribunal referable to any time after 24 February 2002.  This was by general practitioner, Dr S Soliman, and was dated 24 July 2002 (ex A1).  It was of limited use, however, because it said no more than that Mr Borg attended Dr Soliman’s clinic on 24 July 2002 suffering from musculoligamentous injury of the right neck, shoulder and elbow “due to repetitive movements, ie indexation at work”.  He did not recommend restricted duties or certify Mr Borg as unfit for duty for any defined period. 

11.     A report by Dr M Liew, a rheumatologist, dated 6 November 2002 (ex A4), referred to ongoing concern about residual pain to the right side of Mr Borg’s neck extending to right shoulder girdle, some pain in the right elbow and wrist, some persistent weakness to the right upper limb and inability to sustain any activities for an extended period of time.  Upon examination there was slight limitation of motion to the cervical spine, in particular with forward flexion and extension.  Discomfort was noted at the extreme of motion in the right shoulder.  Some tenderness was noted to the extensor compartment of the right forearm and wrist.  Dr Liew prescribed physiotherapy and Endep, an antidepressant.  Dr Liew said nothing about there being any relationship between Mr Borg’s symptoms and his work.

12.     Mr Borg’s oral evidence regarding his pains after February 2002 was that he experienced pain again in July 2002.  This was in the elbow.  He said it was a “numbing” pain.  He said it followed a session of indexing at work.  He described the pain as tennis elbow, although he later said he understood nothing about tennis elbow.

13.     He said that he had pain again in August 2002 in the right shoulder, upper arm and elbow.  Mr Borg said that he consults a doctor only when the pain is worse than usual.  He said that the pains in February, July and August 2002 were “pretty much the same pain”..  The pain was in the same area and there was the same amount of pain.

14.     Dr Soliman’s clinical notes (ex R2) indicated that Mr Borg had right upper limb pain on 23 August 2002 and was numb in the back of his head.  On 9 September 2002 he still complained of right neck, shoulder and upper back pain.  Dr Soliman did not identify these symptoms as related to indexing, whereas he had done so in relation to the February and July symptoms.  Mr Johnson, for the respondent, also argued that these later pain symptoms, including those discussed by Dr Liew, differed from those present in February 2002.

15.     There was considerable discussion in evidence regarding whether Mr Borg had been trained to do keyboard indexing on a machine known as the SPECTRUM 10.  Mr Borg argued that he had not been adequately trained in indexing on this machine.  He said he had received some training at the Seven Hills Mail Centre but had twice failed at this as he could not touch-type.  He said he was transferred to Strathfield and was required to do indexing.  He was told to learn it on the job.  Mr Borg’s Australia Post training records were presented to the tribunal (ex A3).  These showed that he had done “index training (keying)” training for an hour at a time on 7, 8 and 13 March 2002.  Earlier, on 2 September 1999, Mr Borg had signed a document stating that he had received and completed training on SPECTRUM 10 operation.  This included training on “operational procedures” which would appear to include keyboard indexing. 

16.     Mr Borg told the tribunal that the training referred to in ex A3 did not relate to the indexing work he was doing.  He said that indexing had its own training module and he had not completed that.  However, when Mr Johnson put to Mr Borg that training in the operational procedures for SPECTRUM 10 must have included training in indexing, Mr Borg at first appeared not to understand but then agreed that this was so. 

17. Mr Johnson suggested that there was not much of relevance to the issues in this case in the training controversy. The tribunal agrees. The workers’ compensation scheme in the Act, in common with such schemes elsewhere, is a no-fault system. An employee will receive compensation even where there is no fault on the part of the employer provided the employee has suffered what is termed an injury in the case of the Act we are applying here. It is understandable that Mr Borg may wish to express his dissatisfaction with the amount or quality of training provided for him, but he can succeed in his claim even if he was adequately trained.

18.     The tribunal records that it was not possible to ascertain precisely what Mr Borg hoped to gain from this application.  He appeared to think that he should not be required by the respondent to do his full range of duties.  However, in the absence of medical opinion to the effect that he was or is not fit for some or all of his normal duties, and there is no such opinion on the record here, other than for the period in respect of which Australia Post has already accepted liability, Mr Borg has no basis for doing less than his full range of duties.

19. Mr Borg may, understandably, have been interested in ongoing reimbursement under s 16 of the Act for continuing medical and physiotherapy costs associated with a compensable injury. The tribunal takes this to be a significant reason for Mr Borg’s application.

20.     Mr Borg presented the tribunal with a copy of a claim for a lump sum payment in respect of permanent impairment (ex A2).  Chronic pain in the right shoulder, right upper arm and right elbow was identified as the source of the impairment.  The status of this document or claim was uncertain but its existence suggested that Mr Borg was interested in a lump sum payment from the respondent.

21.     Mr Johnson made the following points in his final submissions.  He suggested that there was a lack of evidence before the tribunal on which the tribunal could find any injury suffered by Mr Borg beyond the date of cessation of liability, ie 24 February 2002.  Mr Johnson referred to the medical certificates in T3, T4 and ex A1 and pointed out that two of these were for closed periods and the third did not specify any particular period affecting Mr Borg's ability to work. 

22.     In relation to these certificates, Mr Johnson stated that there was an underlying difficulty in that they did not, in any event, qualify as expert evidence.  He cited the New South Wales Court of Appeal decision in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 for general propositions about the features that must be present for a document from an expert to qualify as expert evidence. The material must furnish the trier of fact with criteria enabling evaluation of the validity of the expert's conclusions. To this end the expert must prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact, on which the opinion is based. Mr Johnson was correct in suggesting that the material from Dr Soliman did not satisfy these requirements for evidence to be accepted as from an expert.

23.     Mr Johnson said of Dr Soliman’s clinical notes that there were gaps in Mr Borg's reporting of the relevant symptoms.  This was correct.  Mr Borg had seen Dr Soliman at the beginning and end of May in 2002 and had not reported any elbow, or shoulder problem.  Elbow pain was also not reported each time Mr Borg reported some of the relevant symptoms to Dr Soliman.

24.     Mr Johnson noted that Mr Borg returned to full duties on 25 February 2002.  He said that this inferred that Mr Borg had suffered from a short-lived condition.

25. The tribunal finds that Mr Borg’s work-related musculoligamentous pain in the right elbow, arm and shoulder ceased as an injury under the Act on 24 February 2002. The tribunal agrees with the submissions advanced by Mr Johnson in paragraphs 21-24 above. The tribunal accordingly adopts those submissions, and the evidence referred to within them, as its reasons for decision.

CONCLUSION

26.     The tribunal has decided that the decision made by Australia Post in this matter was the correct or preferable decision.  This means that Mr Borg’s compensation rights in respect of the injury he sustained on 18 February 2002 ceased on 24 February 2002.  This also means that Mr Borg is not entitled to any costs associated with this application.

27.     The tribunal suggests to Mr Borg that, if he has continuing problems similar to those he had in February 2002, and if he believes that they have arisen out of or in the course of his employment, he should obtain medical evidence confirming that these problems have arisen from his work.  He would then need to make a fresh claim for compensation.

DECISION

28.     The tribunal affirms the decision under review.  The applicant is entitled to no costs associated with this application.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member and Dr M E C Thorpe, Member

Signed:         .......................................................................................
           D Reed         Associate

Date of hearing  11 December 2002
Date of decision  7 March 2003
Counsel for the applicant          Self-represented
Counsel for the respondent      Mr G Johnson
Solicitor for the respondent      Graham Jones, Lawyers