Kitchener and Australia Postal Corporation

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 1509

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/74

GENERAL ADMINISTRATIVE DIVISION		)
Re		SHANNON KITCHENER

Applicant

And AUSTRALIA POSTAL CORPORATION

Respondent

DECISION

Tribunal Ms R Hunt, Senior Member
Dr M Thorpe, Member 

Date21 December 2006

PlaceSydney

Decision The decision under review is affirmed.

……………………………….

Robin Hunt
  Senior Member

CATCHWORDS – WORKERS COMPENSATION – injury and impairment – liability of comcare to pay compensation in respect of injury to neck and lower back – intermittent condition – worker sustained no injury causing intermittent consequential injury to the head as intermittent headaches – finding  intermittent headaches do not cause interference with activities of daily living under table 13.1 so as to cause a permanent impairment.

LEGISLATION

safety rehabilitation and compensation act 1988 (cth) ss 4, 24, 27, 28 & 124

AUTHORITIES

canute v comcare [2006] HCA 47

o’rourke v comcare [1999] No 12154 (unreported)

comcare v emery [1993] 32 ALD 147

allen v comcare [2000] AATA 152

daniel v department of defence [1988]  AAT No 13246, 730

REASONS FOR DECISION

21 December 2006 Ms R Hunt, Senior Member
Dr M Thorpe, Member       

SUMMARY

1.      Mr Kitchener, the applicant, sought compensation for permanent impairment caused at work.  We have considered his claims and are not satisfied, on balance, that he has any compensable permanent impairment resulting from any workplace injury.  This means his claim has failed.  Our reasons appear below.

BACKGROUND

2.      This is an application for review concerning a decision of Australia Post dated 28 December 2005 affirming a determination of 30 November 2005 that Australia Post is not liable under ss 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 (the Act) to pay Mr Kitchener compensation for permanent impairment in relation to his lumbar/thoracic strain injury.

3.      Australia Post by determination, dated 17 May 2002, accepted liability for mild sprain to thoracic and lumbar spine with a date of injury 14 March 2002. By a further determination, dated 15 September 2003, Australia Post accepted liability for cervical facet joint irritation with a date of injury 17 June 2003.

ISSUES

4.      The issues before the Tribunal are:

a)    whether Mr Kitchener has suffered any permanent impairment to his neck, pursuant to table 9.6 of the Comcare Guide;

b)    whether Mr Kitchener has suffered any permanent  impairment of his lower back pursuant to table 9.6 of the Comcare Guide as a result of the incidents on 14 March 2002 and 17 June 2003;

c)    whether Mr Kitchener suffers from migraine consequent to the incidents and, if so, any permanent impairment pursuant to table 13.1 of the Act; and

d)    whether Mr Kitchener is entitled to a lump sum payment for permanent impairment of his neck and lower back pursuant to ss 24 and 27 of the Safety Rehabilitation and Compensation Act 1988.

MR KITCHENER’S HISTORY:

5.      Australia Post records before us show that Mr Kitchener commenced employment with Australia Post on 19 July 1996 as a Postal…