Hall and Australian Postal Corporation - [2012] AATA 868

[2012] AATA 868

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2011/4411

Re

Simon Hall

APPLICANT

And

Australian Postal Corporation

RESPONDENT

DECISION

Tribunal
Senior Member A K Britton
Dr Haikal-Mukhtar, Member

Date 10 December 2012

Place Sydney
Decision Summary
The decision under review is affirmed.
...................[SGD].....................................................
Senior Member A K Britton
CATCHWORDS
WORKERS’ COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 – Causation – Whether injury to left shoulder caused by medical treatment is an injury for which compensation is payable – Whether injury arose out of employment – Application of “but for” test – Whether injury to left shoulder was contributed to, to a significant degree, by employment – decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988(Cth) ss 4(3), 5A(1), 5B
CASES
Hart v Comcare (2005) 145 FCR 29
Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1
March v E & MH Stramare Pty Ltd (1991) 171 CLR 5
Purvis v State of New South Wales (2003) 217 CLR 92
Roncevich v Repatriation Commission (2005) 222 CLR 115
REASONS FOR DECISION
Senior Member A K Britton
Dr Haikal-Mukhtar, Member

Mr Simon Hall commenced work as a delivery officer with Australia Post in 2001. Over the course of his employment he has sustained injuries to both shoulders for which Australia Post has accepted liability.
In July 2011, an MRI of Mr Hall’s left shoulder revealed a labral tear, which was surgically repaired a few months later. Mr Hall made a claim under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) for the costs incurred for that surgery. That claim was refused. Mr Hall challenges that decision and seeks review by the Administrative Appeals Tribunal.
There is no argument that the surgery was reasonably necessary. The issue between the parties is whether Australia Post is liable for the cost of surgery. The answer to this question turns on whether Mr Hall sustained an “injury” within the meaning of the Act.
Background
Australia Post has accepted liability for one injury involving Mr Hall’s left shoulder and a number involving his right shoulder. There is no issue that until June 2011 it was mainly his right shoulder that troubled Mr Hall.
Left shoulder injury
In September 2004 Mr Hall injured his left shoulder while lifting boxes from trolleys. The resultant pathology has been variously described — muscular strain, shoulder impingement and biceps tendonitis. Following that injury, Mr Hall was off work for a day and taken off delivery duties for a couple of weeks. He was certified fit for work with restrictions until 17 November 2004.
Right shoulder injuries
Of the injuries involving Mr Hall’s right shoulder the one sustained in September 2005 was apparently the most serious. It was caused by Mr Hall being thrown from his motorbike into a garage door. An MRI revealed among other things a SLAP (superior labral anterior-posterior) lesion. The labrum is the cuff of cartilage within the shoulder.
Between September 2005 and August 2007, Mr Hall largely worked full time subject to…

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: [2012] AATA 868
Decision Date: 10 December 2012

CaseChat Overview and Summary

In the case of Hall and Australian Postal Corporation, the primary issue was whether Australia Post was liable for the cost of surgery Mr Hall underwent on his left shoulder. The dispute hinged on whether this injury was covered under the Safety, Rehabilitation and Compensation Act 1988. The Court of Appeal was tasked with determining whether Mr Hall's left shoulder injury constituted an injury for which compensation was payable, and if this injury arose out of his employment. The court had to apply the "but for" test to ascertain whether Mr Hall's employment contributed to a significant degree to the injury.

The legal issues revolved around the interpretation and application of the "injury" definition under the Act, and whether the injury arose out of employment. The primary focus was on whether Mr Hall's left shoulder injury was caused by his employment to a significant degree. The court examined the sequence of events leading to the injury, including Mr Hall's previous shoulder injuries and the timeline of his work-related restrictions. The court also considered the medical evidence, particularly the reports from Dr Goldberg, regarding the progression and impact of Mr Hall's shoulder injuries.

The Court of Appeal found that the injury to Mr Hall's left shoulder was not caused by his employment to a significant degree. The court held that Mr Hall had not sustained an "injury" within the meaning of the Act, as the employment did not contribute significantly to the left shoulder condition. The court affirmed the decision under review, concluding that Australia Post was not liable for the cost of surgery on Mr Hall's left shoulder. The reasoning was based on the insufficient contribution of employment to the injury, despite the previous work-related restrictions and injuries.

As a result, the Court of Appeal upheld the decision that Mr Hall had not sustained an "injury" within the meaning of the Act, and thus affirmed the decision under review. Australia Post was not found liable for the cost of the surgery on Mr Hall's left shoulder.

Orders

Orders of the court

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Background

Background to the litigation

There is no argument that the surgery was reasonably necessary. The issue between the parties is whether Australia Post is liable for the cost of surgery. The answer to this question turns on whether Mr Hall sustained an “injury” within the meaning of the Act. Background Australia Post has accepted liability for one injury involving Mr Hall’s left shoulder and a number involving his right shoulder. There is no issue that until June 2011 it was mainly his right shoulder that troubled Mr Hall. Left shoulder injury In September 2004 Mr Hall injured his left shoulder while lifting boxes from trolleys. The resultant pathology has been variously described — muscular strain, shoulder impingement and biceps tendonitis. Following that injury, Mr Hall was off work for a day and taken off delivery duties for a couple of weeks. He was certified fit for work with restrictions until 17 November 2004. Right shoulder injuries Of the injuries involving Mr Hall’s right shoulder the one sustained in September 2005 was apparently the most serious. It was caused by Mr Hall being thrown from his motorbike into a garage door. An MRI revealed among other things a SLAP (superior labral anterior-posterior) lesion. The labrum is the cuff of cartilage within the shoulder. Between September 2005 and August 2007, Mr Hall largely worked full time subject to some restrictions: primarily that he avoid or restrict the use of his right arm. Despite receiving physiotherapy treatment Mr Hall continued to be troubled by his right shoulder and in August 2007 underwent surgery to repair the SLAP lesion. The procedure was not entirely successful and resulted in increased pain and decreased movement of the right shoulder. Those problems were not resolved and two further operations were performed. Following the third operation carried out in August 2010, the treating surgeon, Dr Jerome Goldberg reported that an “excellent labral repair was achieved”. In February 2010, at the recommendation of Dr Goldberg, Mr Hall was transferred to clerical duties. In March 2011 he was certified unfit for work on account of depression. He has not worked since that time.Left shoulder tear Three months after stopping work in 2011 Mr Hall hurt his left shoulder. In a statement prepared for these proceedings he stated:On 6 June 2011 when I was getting into my utility I reached across while I [was] carrying 2 shopping bags to place them in the passenger side footwell I felt a sharp pain in my left shoulder and again when sleeping later that day I felt it go pop. An MRI taken shortly after that incident revealed a left shoulder labral tear, which was repaired by Dr Goldberg in September 2011. At the time of that incident Mr Hall was certified fit to work four hours per day with restrictions (on account of his right shoulder) and totally unfit for work (on account of depression). In a progress report addressed to Mr Hall’s GP, dated 11 January 2011 (five months before the left shoulder incident) Dr Goldberg wrote that movement in Mr Hall’s right shoulder was “approaching normal” and he was making steady progress. He recommended that Mr Hall not lift more than five kilograms or undertake any repetitive or overhead work. He also recommended that Mr Hall commence a light weights program under supervision. In a report dated 14 July 2011, Dr Goldberg wrote that Mr Hall’s right shoulder “is doing reasonably well though [Mr Hall] does get some discomfort with overuse”. Left shoulder symptoms

Evidence

Evidence Before The Court

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Decision

Reasons for decision

We are not satisfied that employment contributed to a significant degree to Mr Hall’s left shoulder condition. According we are unable to find that he suffered a disease within the meaning of the Act. Conclusion We find that Mr Hall has not sustained an “injury” within the meaning of the Act. It follows that we must affirm the decision under review.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/4411
Re	Simon Hall
APPLICANT
And	Australian Postal Corporation
RESPONDENT

Tribunal	Senior Member A K Britton Dr Haikal-Mukhtar, Member
Date	10 December 2012
Place	Sydney