Isbister and Australian Postal Corporation

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 931

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  N2005/1407

DIVISION		)
Re		DAVID ISBISTER

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal  Senior Member Ms Hunt and Member Dr Thorpe

Date 31 October 2006

Place Sydney

Decision

The decision under review is set aside. In substitution the tribunal finds that the respondent is, pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988, liable for compensation to the applicant, on and from the date of his injury sustained during the course of his employment.

We remit the claim to the respondent under section 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 for determination of his entitlements under sections 16 and 19 of the Safety Rehabilitation and Compensation Act for his reasonable medical expenses and for any incapacity payments.

Costs may be awarded in this matter pursuant to section 67(8) of the Safety Rehabilitation and Compensation Act 1988 and pursuant to the tribunal’s Practice Direction.

[SGD]

Ms Robin Hunt
  Senior Member

3.      On 3 August 2005 Mr Isbister lodged an incident report with Australia Post. The report described an incident that occurred two days previously at the depot box on Beach Street. In the report Mr Isbister stated:

It was a heavy mail bag. Did not have time to check weight of [bag]] depot, burning sensation for last two months then on Monday after loading backpack and continuing delivery noticed sharpest pain.

4.      In the incident report Mr Isbister described the nature of his injury as a “lump on right side of groin (hernia type)”. The next day on 4 August Mr Isbister lodged a compensation claim with Australia Post in respect of the injury.

5.      On 2 September 2005 Australia Post denied liability for Mr Isbister’s hernia under section 14 of the Safety Rehabilitation and Compensation Act 1988 (the Act). On 26 September 2005 Mr Isbister requested a reconsideration of that decision. In support of his request he submitted further evidence, namely a medical certificate from Dr O’Young (T18).

6.      On 28 September 2005 a reconsideration officer, a delegate of Australia Post, affirmed the decision of 2 September 2005. In the decision the reconsideration officer referred to the medical evidence of Dr Burke and stated:

Dr Burke says that he would not accept [the] suggestion that the lifting of a 16kg backpack might have caused or aggravated a right inguinal hernia.

The document you provided from the Mayo Clinic mentions that standing for long periods or doing heavy physical labour increases the risk of developing an inguinal hernia. I note, however, that you have only worked at Australia Post for less than 8 months and that I do not consider the work of a Delivery Officer to be “heavy physical labour”.

ISSUES

7.      The issues of this matter are:

(a)Whether Mr Isbister’s indirect right inguinal hernia arose out of or in the course of his employment with Australia Post;

(b)Whether Mr Isbister’s indirect right inguinal hernia was contributed to,…