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

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…

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: [2006] AATA 1510
Decision Date: 28 November 2006

CaseChat Overview and Summary

In the matter of Daly and Australia Postal Corporation, the Central Australian Tribunal (CAT) was tasked with determining whether the Applicant's employment aggravated or accelerated his right inguinal hernia, leading to a claim for workers' compensation. The Applicant alleged that his employment duties, particularly those involving lifting, contributed to the development of the hernia. The Tribunal had to assess whether the hernia could be classified as a disease under the Safety, Rehabilitation and Compensation Act 1988, and if the Applicant's employment made a material contribution to its development.

The legal issues before the Tribunal involved the interpretation of the Act, particularly sections 4 and 14, and how these provisions applied to the concept of a "disease" and "material contribution" in the context of workers' compensation claims. The Tribunal also considered relevant case law, including Comcare v Canute, Australian Telecommunications Commission v Treloar, Commissioner of Superannuation v Scott, and Cavell v Repatriation Commission. The central question was whether the lifting duties undertaken by the Applicant materially contributed to the herniation, given his predisposition to inguinal hernias.

The Tribunal found that while the Applicant was predisposed to inguinal hernias, it was more probable than not that his employment duties materially contributed to the herniation. The medical evidence suggested that a force was likely to precipitate the hernia, and the Tribunal concluded that the lifting duties constituted such a force. Consequently, the Tribunal set aside the decision under review, finding in favour of the Applicant. The Tribunal's reasoning hinged on the balance of probabilities, supported by medical evidence, which established that the Applicant's employment made a material contribution to the herniation.

The final orders of the Tribunal reflected its decision to set aside the previous determination and compensate the Applicant for the hernia, recognising the material contribution of his employment duties to the development of the hernia.

Orders