Chalkley and Australian Postal Corporation

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 558

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No: 2007/4708
   2008/3429

GENERAL ADMINISTRATIVE DIVISION		)
Re		TANYA GAIL CHALKLEY

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Senior Member M D Allen

Date29 July 2009  

PlaceNewcastle

Decision

1.     The Decision in Matter No 2007/4708 is affirmed.

2. The Decision in Matter No 2008/3429 is set aside and remitted to the Respondent with the direction that the Applicant remains entitled to payments pursuant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988.

3.     If no submissions are received by the Tribunal within 14 days from today’s date, the Respondent is to pay the Applicant’s costs.

....................[sgd]........................

M D Allen
  Senior Member

10.     In addition, a confounding element has been that the Applicant has attended medico-legal consultations arising from common law action taken by Australia Post against the third party it alleged was responsible for the injuries received by the Applicant on 21 May 2001.

11.     In these reasons I do not intend to deal with all the medical reports which have been obtained regarding the Applicant. The majority of those reports have been précised by Professor Beran in his report of 6 December 2007 and it would be mere surplusage to regurgitate this material in these reasons.

12.     The Applicant’s evidence to the Tribunal was that prior to her motorcycle accident, she had had some pain in her neck when the Respondent introduced V sorting frames. In 1999, she had made an incident report complaining of “muscular pain in the right shoulder and neck”. Later in 2000, a compensation claim was made for “torticollis neck and shoulder”. Liability was accepted for a closed period, namely, 25 January 2000 to 21 February 2000.

13.     Following the resolution of her torticollis, the Applicant made no further complaints of pain or discomfort until her motorcycle accident on 21 May 2001.

14.     As stated above, the Applicant consulted her general practitioner on 29 May 2001. In a report dated 4 November 2002, the general practitioner, Dr Hindley stated:

“On the 29/5/2001 Mrs Chalkely complained of pain the occipital area radiating to the trapezius muscle region. The range of movement was full but guarded. I would feel that Mrs Chalkely had sustained a soft tissue neck injury and the condition would certainly be consistent with the history given. On the 29/5/2001 I recommended neck x-rays which demonstrated normal alignment with no evidence of any recent fracture nor dislocation. These x-rays did indicate some degenerative disc space narrowing of moderate severity noted at the C5/6 level with some end plate sclerosis and osteophytic lipping. I would feel that Mrs Chalkley’s injury could have certainly aggravated neck pain especially if there was some underlying disc degeneration at the C5/6 level.”

15.     Dr Hindley also referred the Applicant to orthopaedic surgeon Dr Kuru. In a report dated 18 September 2001 to Dr Hindley, Dr Kuru opined:

“ My impression is that Tanya’s probably had longstanding…