Chapman and Australian Postal Corporation
[2000] AATA 182
•8 March 2000
DECISION AND REASONS FOR DECISION [2000] AATA 182
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q1999/908
GENERAL ADMINISTRATIVE DIVISION )
Re RAYMOND HOWARD CHAPMAN
Applicant
And AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Mr. D.W. Muller, Senior Member Dr. K.P. Kennedy, OBE, Member
Date8 March 2000
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
.............(Signed).................................
D.W. MULLER
SENIOR MEMBER
CATCHWORDS
COMPENSATION – incapacity for work
Safety Rehabilitation and Compensation Act 1988: s14
REASONS FOR DECISION
8 March 2000 Mr. D.W. Muller, Senior Member Dr. K.P. Kennedy, OBE, Member
This is an application to review a decision of an officer of the respondent dated 13 July 1999, as affirmed by an independent review officer on 3 August 1999, which determined that the respondent had ceased to be liable to pay compensation to the applicant in respect of any injury.
The applicant commenced employment with the respondent on 10 April 1995 as a casual junior postal delivery relief officer. As a relief officer he filled in for other workers on leave.
In 1996 the applicant was made a permanent part-time employee. He was contracted to perform 11 hours work per week. However, he worked full-time most of the time. He also worked significant hours of overtime. From 1996 the applicant was employed at the Australia Post Murwillumbah Delivery Centre. The applicant's duties included sorting second class mail and making postal deliveries. Second class mail includes large envelopes, magazines, booklets, catalogues and small parcels.
On 23 October 1998 the applicant reported an injury to his right elbow which he attributed to the performing of his work tasks. His evidence to the Tribunal was that he began to notice soreness in his right arm about 12 months prior to October 1998, which became progressively worse some four or five months prior to October 1998. He mentioned the problem to his supervisor on three occasions, but nothing was ever done to alleviate the problem. On 22 October the applicant was suffering pain, tingling and heat in his right elbow and pain in his right wrist and hand to such an extent that he attended his general practitioner, Dr. Moran. The applicant was subsequently diagnosed as having lateral epicondylitis of the right elbow.
Dr. Moran certified the applicant as unfit for work and an application for worker's compensation was lodged. This application was accepted and the applicant began receiving payments in December 1998.
In January 1999 the applicant began a graduated return to work program at the Murwillumbah Retail Centre. The applicant is unable to return to his original position due to the risk of repeating the injury to his elbow. It is common ground that it is the sorting of second class mail that poses the greatest risk.
The applicant is currently working three days per week in a job sharing arrangement. He has been delivering mail, restocking shelves and writing up the registered mail records. The applicant gave evidence to the Tribunal that he is capable of working full-time, that he wants to work full-time. Australia Post have indicated that there are no full-time positions available to offer to him.
The applicant has also done some bus driving. This has been infrequent work, only at the weekends. He found he was capable of carrying out this work. However, he does not wish to take it up on a full-time basis because it would be personally inconvenient. Also, the bus operator only uses the applicant when he requires an extra driver and has indicated to the applicant that he is unable to offer full-time employment.
The applicant still has some residual pain in his right elbow. This is not sufficient to prevent him from working full-time.
The Tribunal heard evidence from Dr. Stabler, orthopaedic surgeon. Dr. Stabler believes that certain people are susceptible to the problems of lateral epicondylitis, tennis elbow and golfers' elbow, because of their physical characteristics. He believes that Mr. Chapman is one of them. Consequently, for Mr. Chapman to remain free of lateral epicondylitis, he should not re-engage in the type of work that he was doing when he hurt his elbow. It was the repetitive nature of the work which caused the problems.
It was submitted on behalf of Mr. Chapman that he is entitled to compensation on the basis of the difference in wages between what he was earning as a sorter on full-time plus overtime and what he is now earning as a three day per week mail deliverer.
Sub-section 14(1) of the Safety Rehabilitation and Compensation Act 1988, provides that compensation is payable if the injury results in death, incapacity for work or impairment.
"14(1) Subject to this Part, Comcare is liable to pay compensation in accordance with his Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment."
Mr. Chapman cannot return to his previous work of sorting second-class mail because of his physical characteristics which make him susceptible to developing another bout of lateral epicondylitis. However, he is not impaired and he has no incapacity for work. He is ready, willing and able to work full-time. The state of the availability of the work that he would like to do is not relevant.
Australia Post is not liable to pay compensation to Mr. Chapman.
The decision under review is affirmed.
I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. D.W. Muller, Senior Member and Dr. K.P. Kennedy, OBE, Member.
Signed: .....................................................................................
R. Hayes, AssociateDate/s of Hearing 23 February 2000
Date of Decision 8 March 2000
Counsel for the Applicant Mr. R. Harrington
Solicitor for Applicant Mitchell, Playford and Radburn
Counsel for the Respondent Mr. B. Skinner
Solicitor for the Respondent Graham Jones
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