Jordan v Australian Postal Corporation

FEDERAL COURT OF AUSTRALIA

Jordan v Australian Postal Corporation [2007] FCA 2028

ADMINISTRATIVE LAW – Error of law – whole body impairment – use of tables in Comcare Guide – injury – assessment of permanent impairment – requirement to isolate compensable effects from effects of underlying condition where it is possible – failure to give adequate reasons

Administrative Appeals Tribunal Act 1975 (Cth) s 20B, s 43(2), s 43(2B), s 44(5)
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5A, s 24, s 24(5), s 28, s 28(1), s 28(4)

Carson v Comcare [2004] FCAFC 204
Comcare v Amorebieta (1996) 66 FCR 83
Martin v Australian Postal Corporation [1999] FCA 655; 29 AAR 420
Peacock v Repatriation Commission (2007) 161 FCR 256

MAREE JORDAN v AUSTRALIAN POSTAL CORPORATION
NSD 1218 OF 2007

BUCHANAN J
19 DECEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1218 OF 2007

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	MAREE JORDAN Appellant
AND:	AUSTRALIAN POSTAL CORPORATION Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	19 DECEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The decision of the Administrative Appeals Tribunal is set aside.

2.The matter is remitted to the Administrative Appeals Tribunal to be heard in accordance with the Administrative Appeals Tribunal Act 1975 (Cth).

3.The respondent is to pay the appellant’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1218 OF 2007

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	MAREE JORDAN Appellant
AND:	AUSTRALIAN POSTAL CORPORATION Respondent

JUDGE:	BUCHANAN J
DATE:	19 DECEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1. Mrs Maree Jordan commenced employment with the Australian Postal Corporation (‘Australia Post’) in 1993.  She remained in that employment, as a postal delivery officer, until 3 January 2001.  During the course of her employment she made two claims for compensation with respect to injuries to her right arm or shoulder.  On 22 August 1994 she strained a muscle in her right arm after reaching up while sorting mail.  On 19 July 1996 she suffered a partial tear to a tendon in her right shoulder.  The claims were accepted by Australia Post. 

2. On 4 May 2004, more than three years after leaving her employment, Mrs Jordan had surgery on her right shoulder.  Shortly before the surgery Dr David Maxwell, on 12 February 2004, provided the following observations:

   ‘Mrs. Maree Jordan still has some symptoms and signs suggestive of right calcific tendonitis involving the supraspinatus tendon causing some impingement of the right shoulder.

   I consider that is probable that the nature and conditions of her work, specifically repetitive use of her right arm, has led to attrition of the right supraspinatus tendon, leading to calcification within the tendon.  This has caused an impingement syndrome.’

3. Dr Maxwell therefore, in early 2004, attributed Ms Jordon’s difficulties to work related injury or aggravation.  As will be seen,…