Koreel and Australian Postal Corporation

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 142

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/1538

GENERAL ADMINISTRATIVE DIVISION		)
Re		IBTISAM KOREEL

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Senior Member, Mrs Josephine Kelly
Dr J Campbell, Member

Date25 February 2008

PlaceSydney

Decision The reviewable decision is affirmed.

.....................[sgd].........................

Presiding Member

Senior Member, Mrs Josephine Kelly

CATCHWORDS

COMPENSATION – injury – aggravation of disease – applicant employee of Australian Postal Corporation – pain in left knee while sorting mail – claims for medical expenses incapacity and permanent impairment – liability denied - initial diagnoses - patellofemoral joint disorder – prepatellar bursitis traumatic - whether applicant had injury or disease –medical expert evidence considered – held no medical diagnosis – no evidence pain began at work - applicant did not have injury or disease – whether onset of pain at work an injury -  reviewable decision affirmed

Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 24, 27

Accident Compensation Commission v McIntosh [1991] 2 VR 253

Australian Postal Corporation v Burch (1998) 85 FCR 264

Canute v Comcare (2006) 226 CLR 535

Comcare v Etheridge (2006) 149 FCR 522

Comcare v Mooi (1996) 69 FCR 439

Commonwealth Banking Corporation v Percival (1988) 20 FCR 176

Hughes v Australian Postal Corporation [2002] FCA 1645

Kennedy Cleaning Services v Petkoska (2000) 200 CLR 286

Re Gray and Commonwealth Banking Corporation (AAT 5168, 21 June 1989)

Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310

REASONS FOR DECISION

25 February 2008 Senior Member, Mrs Josephine Kelly
Dr J Campbell, Member     

BACKGROUND

1.      By the end of the hearing before us, there were two issues to decide.  The first was whether Ms Koreel had suffered an injury "simpliciter" to her left knee at work on 14 March 2005, or alternatively, whether she had suffered the aggravation of a disease at that time.  For the reasons that follow, we find that Ms Koreel did not suffer either.  

2. When the hearing began, there were two proceedings before us. The first were proceedings N2005/1538 which was the claim for liability pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) which is summarised above. The second proceeding, N2006/380, was a claim for permanent impairment pursuant to ss 24 and 27 of the Act. That proceeding was withdrawn on 13 November 2007.

THE CASE FOR MS KOREEL

3.      Mr Richards, of counsel, appeared for Ms Koreel.   We understood his first argument to be that an injury does not have to be caused by work, but rather has to occur at work, and in this case the injury was the onset of pain at work on 14 March 2005.  However, we also understood him to retreat from that position and put an argument that "something happened" on 14 March 2005 while Ms Koreel was at work which caused her to feel pain in her left knee.  We understood that this argument accepted that a physical change…