Daly and Australia Postal Corporation

[2006] AATA 1510

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 1510

ADMINISTRATIVE APPEALS TRIBUNAL)
  )       No. N2006/267
GENERAL ADMINISTRATIVE DIVISION  )

Re      DANIEL DALY

Applicant

AndAUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal  Senior Member M D Allen

Dr I Alexander, Member

Date of Decision                 28 November 2006

Date of Written Reasons   8 December 2006

Place  Sydney

DecisionFOR the reasons given orally at the conclusion of the hearing in this matter:

1. The decision of the Australian Postal Corporation dated 27 February 2006 is SET ASIDE and the Tribunal substitutes its decision that the Respondent is liable, pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988, for the condition described as “right inguinal hernia”.

2. The Respondent is to pay the Applicant’s costs.

(Sgd) M.D. ALLEN
  ..................................................

Presiding Member

CATCHWORDS

WORKERS COMPENSATION – claim for compensation for “right inguinal hernia” – whether the Applicant’s employment aggravated or accelerated his inguinal hernia – discussion of “disease” and “material contribution” – medical evidence supports a force as being likely to precipitate herniation – Tribunal finds that although predisposed, it is more probable than not, that the lifting duties undertaken by the Applicant materially contributed to the herniation - decision under review set aside.

Safety, Rehabilitation and Compensation Act 1988 – sections 4, 14

Comcare v Canute 148 FCR 232
Australian Telecommunications Commission v Treloar (1989) 11 AAR 67
Commissioner of Superannuation v Scott 71 ALR 408
Cavell v Repatriation Commission 9 AAR 534

REASONS FOR DECISION

28 November 2006   Senior Member M D Allen
  Dr I Alexander, Member

1.      At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally.  After service upon the Applicant and Respondent of a copy of the decision that was in fact made, the Respondent pursuant to sub-section 43(2A) of the Administrative Appeals Act 1975, requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3.      The said transcript is annexed thereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal’s decision.

I certify that this and the preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen

Signed:         .....................................................................................
  Associate

Date of Hearing  28 November 2006  
Date of Decision  28 November 2006

Counsel for the Applicant                  Mr David Richards

Solicitor for the Applicant                   Slater & Gordon Lawyers

Counsel for the Respondent             Miss Rhonda Henderson

Solicitor for the Respondent              Graham Jones Lawyers

O/N 28527

DRAFT JUDGMENT  [3.16pm]
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2006/267
By MR M.D. ALLEN, SENIOR MEMBER
DALY and AUSTRALIAN POSTAL CORPORATION
SYDNEY, 28 NOVEMBER 2006

MR ALLEN:   By application made 10 March 2006 the applicant sought review of a reviewable decision made 27 February 2006, which affirmed a prior determination that the respondent was not liable for the condition described as right inguinal hernia. 

The applicant’s evidence is that he had worked initially for some 23 years at a Royal Australian Navy Stores Depot, but performing generally clerical duties.  He had, prior to that, some factory jobs, been a train engine driver and some three and a half years in a County Council.

He first joined Australia Post in around 1998 or 1999 but it would appear, from other material given to us, that at the time he was employed by a firm of labour contractors and the exact relationship to his employment with Australia Post is unclear.  Suffice to say, however, that after undergoing a further medical exam in the year 2000 and some correction to his near vision, he was accepted for employment with Australia Post proper on or about 12 November 2001.  His duties at all times since starting with Australia Post were that of a postal delivery officer.  It is also useful to mention at this time that both on his initial employment with Australia Post and again in 2000 he underwent a full medical examination and no inguinal hernia was detected by the medical officer carrying out those examinations.

As a postal delivery officer he started at or about 5.30 or 6 am in the morning and his first duty was to sort mail using what is referred to as a V sorting frame.  He was then responsible for bundling his own mail.  Some went into a backpack and others went into other packs, which were delivered to various points on his route.  He then commenced walking a route and delivering mail.  He said that the backpack held approximately some 16 kilograms of mail.  He was always very cautious not to overfill his bag so that it was too heavy.  He also said that at times the employing authorities carried out spot checks and he had never been admonished for loading his backpack to the extent it was regarded as too heavy.  Of course, during his duties it involved him at various times lifting his backpack onto his back.

He said that he first noticed a lump or, as he has described, a thickening in his groin in around February/March of 2005 when on holidays in Queensland.  He described the thickening as wide as four fingers of his hand in the groin area.  He didn’t really take over much notice of this as he thought it was due to putting on weight in his middle age, the applicant having been born on 6 January, 1947. 

He next experienced the condition on 22 September 2005.  At that time he had dropped a letter in the course of sorting it into a V frame and had, as I noted, bent down to pick up the letter.  He felt pain in his groin area and what was described as a gurgling noise.  On a level of 1 to 10 he described his pain as level 5 but it seemed to go away fairly quickly.  As the pain had gone away, he continued sorting his mail and then went on with his delivery route.  What he did notice, however, during that day was that he had the feeling that his underpants were not fitting correctly. 

The next day at a similar time he was squatting down to pick up some envelopes and again experienced pain in the groin area, this time more severe and it was more noticeable.  So, he decided to see his general practitioner and it has been confirmed he saw a Dr Tayeh the next day, a Saturday.  Dr Tayeh examined him and diagnosed a right inguinal hernia and eventually he came to surgery under a Dr Berney.  In between being diagnosed with the inguinal hernia and his operation, he had been on light duties with the respondent.

We will, at the outset, say that, having regard to the evidence of both Drs Griffith and Bourke, we are satisfied that the incidents of 22 and 23 September 2005 were no more than transitory episodes of the applicant experiencing symptoms of an existing disease.  In approaching this matter we adopt from Repatriation Law the term clinical onset.  That is to say, when, if the applicant had presented with the signs and the symptoms, would a medical practitioner first diagnose the disease as being present.  Dr Bourke, in answer to questions from the Tribunal, stated that if the applicant had presented in around February/March when he first noticed the thickening in his abdomen, he would then have been diagnosed as having an inguinal hernia. 

As to the genesis of the hernia, as was pointed out by Dr Bourke, both in his report of
19 October 2005 and his evidence to the Tribunal, and indeed by Dr Griffith, that an inguinal hernia is a congenital condition. Reading from his report he said:

An inguinal hernia develops along a line of weakness or in a primordial hernial sac associated with testicular development as a foetus.  It sometimes presents at birth and sometimes at a late age.  It can be aggravated, accelerated, or exacerbated by particular strains, particularly lifting strains.

The section 14 of the Safety Rehabilitation and Compensation Act states, inter alia, that:

The respondent is liable to pay compensation in respect of an injury if that injury results in incapacity for work or impairment.

When one goes to section 4 of the said Act, injury is defined as meaning a disease suffered by an employee.  Disease, in its turn, is defined as meaning:

A.Any ailment suffered by an employee.

B.The aggravation of any such ailment, being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by a licensed corporation. 

The term ailment means:

Any physical, mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development -

and the term aggravation is defined as including acceleration or occurrence.  The matter, which really is for consideration by this Tribunal, was did the applicant’s employment aggravate or accelerate his inguinal hernia?  In determining that question it was submitted, and we agree, that attention must be paid to the definition of disease in as much as the legislature in the Safety Rehabilitation and Compensation Act 1988 specifically defined the term to mean:

An ailment or aggravation that was contributed to in a material degree by employment. 

In particular, we referred to the second reading speech to the Commonwealth Employees Rehabilitation and Compensation Bill and, as was pointed out by the majority in Comcare v Canute 148 FCR 232 commencing at 248, the decision of the Full Court of the Federal Court in Australian Telecommunications Commission v Treloar (1989) 11 AAR 69 71 was specifically referring to the Compensation Commonwealth Government Employees Act 1971 where the word material does not occur.

Canute, of course, was reversed on appeal to the High Court, but the High Court did not address the concept of material contribution referred to by the majority. It seems clear, having regard to the majority decision in that case, that this Tribunal must take into account the very deliberate insertion by the legislature of the concept of a material contribution. The real difficulty is, however, to ascertain what is a material contribution. In many ways the word material is similar to the word substantial, as was pointed out in Commissioner of Superannuation v Scott 71 ALR 408 at 413, that it is a word not only susceptible to ambiguity but calculated to conceal a lack of precision. Of course, one must resist the temptation to have resort to a thesaurus. As was pointed out in Cavell v Repatriation Commission 9 AAR 534 at 539:

In the absence of ambiguity other words should not be used in place of the words used by the legislation.

That being so, however, material is a common English word and if one goes to the Oxford English Dictionary, in this case the 1970 Clarendon reprint, meaning five of the word material is given as:

Of serious or substantial import; of much consequence; important.

Paragraph (d), meaning 5, then goes on to say under the subheading Law:

Applied to evidence or facts, which are of such significance as to be likely to influence the determination of a cause, to alter the character of an instrument -

etcetera.  We see no reason to depart from that meaning in this matter.  As stated, evidence was given by two surgeons; Dr Griffith and Dr Bourke.  As Dr Griffith pointed out, a force is likely to precipitate herniation.  As he said in his report, dated 26 January 2006:

There was no actual accident but a progression of symptoms and development of the hernia over a period as described.  The nature of his duty and the history leads me to the opinion that, on balance, it is more likely than not to be work related in a predisposed individual.

The only comment we would make on that is that Dr Griffith did seem to over exaggerate some of the duties and their effect carried out by the applicant.  For example, there was no evidence at all as to how the applicant worked on the V sorting machine and to accept Dr Griffith really comes down to appreciating the applicant over the period of time lifting bags of mail of not more than 16 kilograms.

Dr Bourke also conceded, however, that once you have a hernia, any activities, which raise the inter-abdominal pressure, are likely to progress the herniation and that lifting accelerates this process.

It seems to us, therefore, that with a person such as the applicant, who has no previous signs or symptoms of a hernia, although predisposed, but who has engaged in activities, namely lifting, which are likely to accelerate the clinical onset of that condition, then more probably than not those activities have materially contributed to the herniation. That being so, the decision of the respondent is set aside and the Tribunal substitutes in lieu thereof that the respondent is liable pursuant to section 14 of the Safety Rehabilitation and Compensation Act for the condition described as right inguinal hernia.

The respondent is to pay the applicant’s costs.

______________________