Ching and Australian Postal Corporation - [2004] AATA 842

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 842
ADMINISTRATIVE APPEALS TRIBUNAL      )
)          No N2002/1112
  )          N2002/1113
  )          N2003/1602
  )          N2003/1603

GENERAL ADMINISTRATIVE DIVISION )

Re XIAO MEI CHING

Applicant

And

AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Mr S. Webb, Member
Date12 August 2004
PlaceSydney

Decision
1.      The reviewable decisions in applications N2002/1113 and N2003/1603 are set aside.   Australia Post is liable to pay compensation in accordance with the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) in relation to Ms Ching’s bilateral shoulder and left upper limb injuries on or about 31 August 2001. That liability did not cease on 29 May 2002.

2. The reviewable decision in application N2002/1112 is set aside. Australia Post is liable to pay compensation in accordance with the Act in relation to Ms Ching’s left forearm, wrist and hand injury on or about 15 February 2002.

3.      The reviewable decision in application N2003/1602 is varied to the extent that Ms Ching’s compensable conditions are not yet permanent and assessment of the degree of permanent impairment would be premature. It follows that she is not entitled to compensation for permanent impairment at this time.

4.      The matter is remitted to Australia Post to calculate Ms Ching’s entitlements to payment of compensation in accordance with these reasons.

5.      Australia Post is to pay Ms Ching’s costs in these proceedings as agreed or taxed.

[Sgd] Mr S. Webb, Member

Ms Ching’s claim was rejected on the basis that “Your new claim appears to be identical to the claim which you lodged in March this year… and which was subsequently rejected”.
29.     On 20 December 2002 Ms Ching lodged a claim for compensation in relation to “right shoulder & arm pain & sore”, wherein she asserted “injury first from left arm/shoulders 31/8/2001 and gradually to right…”. That claim was rejected on 7 January 2003 on the basis that “A decision issued on 24/7/02…denies liability in relation to injuries to both shoulders… I am of the view that your claim for right shoulder/arm pain has already been addressed, and that your latest “claim” is no more than a duplication of earlier claims.”
30.     On 4 April 2003 Ms Ching lodged a compensation claim form for permanent impairment of the “left upper limb; right upper limb”. On 10 April 2003 Australia Post determined that “Mrs Ching is not entitled to the payment of compensation under sections 24 and 27 of the Act”. That determination was reconsidered and affirmed in a reviewable decision dated 1 July 2003. Ms Ching is pursuing her review rights in relation to that decision by application to this Tribunal (N2003/1602).
31.     On 4 July 2003 Ms Ching lodged a compensation claim relating to “left & right shoulders, left & right arms, left & right elbows, left & right wrists and hands”, stating “I felt pain and sore in my injury parts when I working”…

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: [2004] AATA 842
Decision Date: 12 August 2004

CaseChat Overview and Summary

In the case of Ching and Australian Postal Corporation, the applicant, Ms Ching, sought compensation for various work-related injuries she suffered during her employment with Australia Post. The primary dispute involved the liability for compensation related to shoulder, arm, and hand conditions, as well as the assessment of permanent impairment. The Federal Court was tasked with reviewing decisions made by the Administrative Appeals Tribunal (AAT) concerning Ms Ching's claims under the Safety, Rehabilitation and Compensation Act 1988.

The central legal issues the court had to decide were whether Australia Post was liable for compensation beyond the initial medical treatment expenses for Ms Ching's bilateral shoulder condition, the status of her left upper limb injury, and the correct assessment of permanent impairment. Ms Ching argued that the AAT had erred in its decisions by prematurely concluding the liability for certain injuries and by incorrectly assessing the permanency of her impairments.

The court found that the AAT had misapplied the law by setting a premature end to Australia Post's liability for Ms Ching's shoulder and left upper limb injuries. The court ruled that the injuries were not yet permanent, and hence, an assessment of permanent impairment was premature. Consequently, the decisions made by the AAT were set aside, and the matter was remitted for reassessment of Ms Ching's entitlements under the Act. The court also determined that Australia Post remained liable for compensation for Ms Ching's left forearm, wrist, and hand injury.

In summary, the court ordered that Australia Post was to pay compensation for Ms Ching's bilateral shoulder and left upper limb injuries, as well as for her left forearm, wrist, and hand injury. The court set aside the AAT's decisions regarding the cessation of liability and the assessment of permanent impairment, finding these decisions were premature. The matter was remitted to Australia Post to recalculate Ms Ching's entitlements to compensation, and Australia Post was also ordered to pay Ms Ching's costs in the proceedings.

Orders

Orders of the court

1. The reviewable decisions in applications N2002/1113 and N2003/1603 are set aside. Australia Post is liable to pay compensation in accordance with the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) in relation to Ms Ching’s bilateral shoulder and left upper limb injuries on or about 31 August 2001. That liability did not cease on 29 May 2002.

2. The reviewable decision in application N2002/1112 is set aside. Australia Post is liable to pay compensation in accordance with the Act in relation to Ms Ching’s left forearm, wrist and hand injury on or about 15 February 2002.

3. The reviewable decision in application N2003/1602 is varied to the extent that Ms Ching’s compensable conditions are not yet permanent and assessment of the degree of permanent impairment would be premature. It follows that she is not entitled to compensation for permanent impairment at this time.

4. The matter is remitted to Australia Post to calculate Ms Ching’s entitlements to payment of compensation in accordance with these reasons.

5. Australia Post is to pay Ms Ching’s costs in these proceedings as agreed or taxed.

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		XIAO MEI CHING