Malcolm Grace and Australian Postal Corporation - [2013] AATA 529

[2013] AATA 529

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2011/1374

Re

Malcolm Grace

APPLICANT

And

Australian Postal Corporation

RESPONDENT

DECISION

Tribunal
Senior Member J F Toohey
Dr M Couch

Date 30 July 2013

Place Sydney
The Tribunal has no jurisdiction to determine a nature and conditions claim.
The Tribunal sets aside the decision under review and substitutes for it a decision that the respondent is liable under s 14 of the Safety, Rehabilitation and Compensation Act 1988 to compensate Mr Grace for the injury sustained in the course of his employment on 8 September 2010.
..........[sgd]..............................................................
Senior Member J F Toohey
CATCHWORDS
COMPENSATION – postal services officer – mail delivery – cervical spine – right shoulder – severe widespread degenerative changes – liability denied – whether the applicant suffered an injury – whether evidence of sudden or identifiable physiological change – decision under review set aside
LEGISLATION
Safety, Rehabilitation and Compensation Act ss 5A, 14
CASES
Australian Postal Corporation v Burch (1998) 85 FCR 264
Kavanagh v Commonwealth (1960) 103 CLR 547
Kennedy Cleaning v Petkoska (2000) 200 CLR 286
Szabo v Comcare [2012] FCAFC 129
Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310
REASONS FOR DECISION
Senior Member J F Toohey
Dr M Couch
30 July 2013
BACKGROUND

Mr Malcolm Grace is a postal services worker employed by Australia Post. On 8 September 2010, he was delivering mail on his usual beat. As he put mail into a letterbox at a block of apartments, he felt pain in his right shoulder. He had trouble lifting his arm and thought he had pulled a muscle. He finished his beat using his left arm.
The following morning, Mr Grace could not move his right arm. He was admitted to hospital the same day and underwent surgery several days later. He has regained some movement in his right arm but has not been able to return to work since.
Mr Grace claims compensation under the Safety, Rehabilitation and Compensation Act1988 (the Act). The respondent denies that Mr Grace has suffered a compensable injury and contends that his condition was the result of severe, widespread degenerative disease in his cervical spine.
There is no dispute that Mr Grace suffers from severe degeneration of his cervical spine. At issue is whether he suffered an injury at work on 8 September 2010 for which the respondent is liable to compensate him under s 14 of the Act. Only liability under s 14 is presently in issue.
PRELIMINARY QUESTION
A preliminary question arises in this matter, being the proper construction of Mr Grace’s claim for compensation, in particular whether the Tribunal has jurisdiction in these proceedings to determine a nature and conditions claim, or whether its jurisdiction is confined to determining a claim in relation to a frank injury sustained on 8 September 2010. The background to this question follows.
On 11 October 2010, the respondent denied liability to compensate Mr Grace for an injury described in his claim form…

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: [2013] AATA 529
Decision Date: 30 July 2013

CaseChat Overview and Summary

The case between Malcolm Grace and the Australian Postal Corporation was heard in a court that determined whether Mr Grace was entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) following an incident on 8 September 2010. Mr Grace, a postal officer, claimed he suffered an injury while delivering mail, which he alleged aggravated pre-existing cervical spine degeneration. The court had to decide if Mr Grace's condition on that day constituted an injury under the Act and if there was sufficient evidence of a sudden or identifiable physiological change. The court also needed to assess if the respondent's decision to deny Mr Grace's compensation claim was legally sound.

The primary issue before the court was whether Mr Grace's condition on 8 September 2010 constituted an injury within the meaning of the Act. This involved distinguishing between a gradual progression of a pre-existing condition and a sudden physiological change that could be attributed to his employment activities. The court considered the medical evidence and Mr Grace's account of the events, weighing the significance of his pre-existing degenerative changes against any new physiological disturbances that may have occurred. The court also evaluated the submissions regarding the nature of Mr Grace's employment and whether the alleged incident represented a distinct event that triggered a compensable injury.

The court found that Mr Grace had long-standing degenerative changes in his cervical spine but had not experienced significant symptoms until the day of the incident. The court accepted that Mr Grace felt something unusual on 8 September 2010, which led to a noticeable reduction in movement in his right arm the following morning. The court noted the evidence of acute C5 and C6 motor radiculopathy but concluded that there was no clear evidence of a sudden or identifiable physiological change that was distinct from his pre-existing condition. The court held that the decision to deny Mr Grace's compensation claim was correct as it found no evidence to support that the incident caused a new injury separate from the progression of his pre-existing degenerative changes.

The court set aside the decision under review and found in favour of the Australian Postal Corporation, concluding that Mr Grace was not entitled to compensation under the Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

We are satisfied that, read as a whole, Mr Grace’s claim, and the reviewable decision, concern a frank injury occurring on 8 September 2010, and not a claim related to the nature and conditions of his work. It follows that we have no jurisdiction to determine a nature and conditions claim. That is not to say that a claim concerning the nature and conditions of Mr Grace’s employment could not be made at another time.MR GRACE’S EVIDENCE Mr Grace impressed us as a truthful person, and he did his best to recall events, but he was not a good historian. His evidence was inconsistent in parts. He had trouble recalling some matters and was confused about others. He had to be prompted sometimes to answer questions or provide more information, and he agreed with propositions when it was not always clear that he appreciated their implications. Variations in the histories taken by some of Mr Grace’s doctors may be attributable to these difficulties. In any event, Mr Grace’s evidence has to be approached with caution. Mr Grace gave evidence that, in 2010, his beat covered three streets in Bondi where the majority of addresses were apartments. He would collect mail from depots along the way and put it in a trolley which he pushed by hand. There could be 20 to 25 boxes at a block of apartments, at heights varying from below knee-height to above shoulder height. He had worked this way for about 10 years. We have no reason to doubt his evidence that he loved his work and would like to be back on his round. Before 8 September 2010 Mr Grace had a motor vehicle accident on the way to work in December 2004. A workplace Incident Report at the time recorded that he suffered knee and shoulder pain. On 9 December 2004, Dr Affleck, his general practitioner at the time, recorded that Mr Grace had a painful right knee and neck strain. On 13 December 2004, Dr Affleck recorded that Mr Grace had noticed some “pain/spasm in both shoulders posteriorly” following the accident, but “neck feels fine now”. Mr Grace gave evidence, which we accept, that he suffered only slight injuries in the accident and was back at work in a couple of days. The doctors who gave evidence in these proceedings all agreed that Mr Grace might have suffered some C5 nerve root irritation in the accident but no significance could be attached to this injury. Around March or April 2010, Mr Grace started experiencing intermittent numbness and pins and needles in his right arm. His symptoms occurred about once a week and only in the evening while he was lying down propped up on pillows watching television. The pins and needles would last five to ten minutes, there was no pain associated with them and they would pass when he shook his arm. He thought they could signal a heart condition, and he had been thinking of seeing his doctor, but had put off doing so. Mr Grace’s evidence about where he felt the pins and needles was not clear. For instance, under cross-examination, he described them as running from his elbow down into his third and fourth fingers, and later as running from his shoulder down into his middle finger as well as his third and fourth fingers. Under cross-examination, Mr Grace denied his symptoms were gradually becoming worse leading up to 8 September 2010, and said that since surgery, the symptoms in the middle finger had been relieved, but he still experiences intermittent pins and needles in the third and fourth fingers.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Dr Kremer was alone in his view as to the role of Mr Grace’s pre-existing degenerative condition. Taking these matters into account, we attach no weight to his evidence.CONSIDERATION It is not in dispute that Mr Grace had long-standing degenerative changes in his cervical spine. We are satisfied that he suffered no more than minor symptoms prior to 8 September 2010. We accept his evidence that, other than the sensation of pins and needles and tiredness at the end of the day, his symptoms did not interfere in his work other than to make him decline the offer of overtime several times because of fatigue. We accept that, on the day in question, Mr Grace had carried out his duties without difficulty until close to the end of his beat when delivering mail at the Bondi address. Despite his various descriptions of what he felt at the time, there is nothing seriously to suggest he did not feel something at that point – which he identified at the time as possibly a pulled muscle – that stopped him using his right arm for the remainder of his round. Nor is there any dispute that the movement in his right arm was reduced the following morning such that Mr Grace could barely raise his arm from his side. There is no question that, when Mr Grace was examined the following day, there was evidence of acute C5 and C6 motor radiculopathy. For Mr Grace it is submitted that the action of lifting his right arm to deliver a letter on 8 September 2010 was “the last straw”, causing insult to an already potentially compromised nerve root, followed by inflammation and swelling of the nerve root overnight, resulting in the marked weakness the following day. For the respondent it is submitted that what occurred was a natural development in the course of Mr Grace’s progressive cervical spondylosis, that he noticed weakness when he went to deliver mail on 8 September 2010, but that neither this nor any other activity at work was a causative factor. In particular, the respondent submits, there is no evidence of trauma-based pathology. Injury for the purposes of the Act includes, relevantly, an injury suffered by an employee that is a physical or mental injury arising out of, or in the course of, the employee's employment: s 5A(1)(b). Whereas the expression “arising out of” employment connotes a causal connection, the expression “in the course of” employment does not, and a causal connection is not necessary: Australian Postal Corporation v Burch (1998) 85 FCR 264 at 268. If Mr Grace suffered a disturbance of his physiological state, or a “sudden or identifiable physiological change” while carrying out his duties, he will have suffered an injury in the course of his duties. It need not be a change brought about by external forces, and the mere fact that it is caused, or provoked by, an underlying “disease” does not, of itself, prevent it being classified as an “injury”: Kavanagh v Commonwealth (1960) 103 CLR 547; Kennedy Cleaning v Petkoska (2000) 200 CLR 286; Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310.

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/1374
Re	Malcolm Grace
APPLICANT
And	Australian Postal Corporation
RESPONDENT

Tribunal	Senior Member J F Toohey Dr M Couch
Date	30 July 2013
Place	Sydney