[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 CouchDate 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 129Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310
REASONS FOR DECISION
Senior Member J F Toohey
Dr M Couch30 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…
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- Case
- [2013] AATA 529
- Decision Date
CaseChat Overview and Summary
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
Decision
Reasons for decision
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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.