Mark Anderson and Australian Postal Corporation - [2013] AATA 512

Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
)No: 2014/3486

General Division )

Re: Mark Anderson

Applicant

And: Australian Postal Corporation

Respondent
CORRIGENDUM
TRIBUNAL:   Dr Damien Cremean, Senior Member
DATE:            21 April 2016
PLACE:         Melbourne
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to add the following text to the decision in this application as follows:
The Respondent shall pay the Applicant’s costs and disbursements in respect of the proceedings pursuant to s 67(8) of the Safety, Rehabilitation and Compensation Act 1988.

[sgd]................................................................
Senior Member
Anderson and Australian Postal Corporation (Compensation) [2016] AATA228 (8 April 2016)

Division

GENERAL DIVISION

File Number(s)

2014/3486

Re

Mark Anderson

APPLICANT

And

Australian Postal Corporation

RESPONDENT

Decision

Tribunal
Dr Damien Cremean, Senior Member

Date 8 April 2016

Place Melbourne
The decision under review is set aside.

..........[sgd].............................................
Dr Damien Cremean
COMPENSATION– ailment – osteoarthritis left thumb – whether compensable – “aggravation” – “significant” – whether notice required – whether false and wilful statement – decision under review set aside
Legislation
Safety Rehabilitation and Compensation Act 1988 (Cth) sections 4, 5A, 5B, 7(7), 14, 53
Cases
Abrahams v Comcare [2006] FCA 1829
Australian Postal Corporation v Bessey [2001] FCA 266
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Comcare v Lofts (2013) FCR 220
Comcare v Reardon [2015] FCA 1166
Commonwealth of Australia v Beattie (1981) 35 ALR 369
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Georgoulas and National Australia Bank Ltd [2013] AATA 512
Muscat and Australian Postal Corporation [2016] AATA 13
Tippett v Australian Postal Corporation (1998) 27 AAR 40
Weigand v Comcare Australia [2002] FCA 1464
Wilson and Comcare [1996] AATA 862
REASONS FOR DECISION
Dr Damien Cremean
8 April 2016

Application is made to review a decision of the Respondent made on 14 May 2014.
That decision affirmed a determination made on 28 March 2014 that the Respondent was not liable to pay compensation to the Applicant under section 14 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’) in respect of left thumb severe pain. The Applicant, Mr Anderson, gave sworn evidence at the hearing and called medical witnesses. The Respondent called only a medical witness.
In what follows I provide an outline of the Applicant’s and the witnesses’ evidence.
Outline of Evidence
Applicant
The Applicant is aged 47 years and was born on 13 October 1968.
He commenced work with Australia Post on 19 March 1997. He was working in the Northern Parcels Centre. He had previously completed an apprenticeship as a diesel mechanic with Saab-Scania, and had also worked as a storeman and in various other driving and delivering jobs.
In about March 2000 the Applicant became a full-time Postal Delivery Officer (‘PDO’), first at the Brunswick Delivery Centre and then at the Preston Delivery Centre.
By 2002, the Applicant worked as a PDO in the suburban areas around Fairfield. He would start work each day at about 6.00am…

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 512
Decision Date: 8 April 2016

CaseChat Overview and Summary

The matter between Mark Anderson and the Australian Postal Corporation came before the Administrative Appeals Tribunal (AAT). Mark Anderson, a former employee of Australia Post, sought compensation for an injury he claimed arose from his employment as a Postal Delivery Officer. The central issue was whether Anderson's osteoarthritis in his left thumb, which he attributed to his work duties, was compensable under the relevant legislation. The Tribunal had to determine if Anderson's condition met the criteria for a compensable injury under the Act, considering factors such as the nature of the ailment, the degree to which it was contributed to by his employment, and whether the condition arose out of or in the course of his employment.

The key legal issues the Tribunal addressed were the definitions and criteria for a compensable injury under the Act. Specifically, the Tribunal needed to ascertain whether Anderson's osteoarthritis was an ailment or an aggravation of an ailment that was contributed to, to a significant degree, by his employment. This involved interpreting the relevant provisions of the Act, including the definitions of ailment, aggravation, and disease, as well as the requirement for a significant degree of contribution by employment. The Tribunal also needed to determine if the condition arose out of or in the course of Anderson's employment, which would further establish the compensability of his injury.

In reaching its decision, the Tribunal carefully considered the evidence provided by Anderson and his medical specialists. The Tribunal accepted that Anderson suffered from osteoarthritis in his left thumb, a condition that met the definition of an ailment under the Act. The critical issue was whether this condition was contributed to, to a significant degree, by Anderson's employment as a Postal Delivery Officer. The Tribunal found that Anderson's work duties, which involved repetitive and forceful motions with his left thumb, significantly contributed to the development and exacerbation of his osteoarthritis. Consequently, the Tribunal determined that Anderson's condition was a compensable injury under the Act.

The Tribunal ordered that the Australian Postal Corporation pay compensation to Mark Anderson for his injury, recognising the significant contribution of his employment to the development of his osteoarthritis. The decision highlighted the importance of the nature of work duties and their impact on an employee's health in determining the compensability of injuries under the Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In what follows I provide an outline of the Applicant’s and the witnesses’ evidence.Outline of EvidenceApplicant The Applicant is aged 47 years and was born on 13 October 1968. He commenced work with Australia Post on 19 March 1997. He was working in the Northern Parcels Centre. He had previously completed an apprenticeship as a diesel mechanic with Saab-Scania, and had also worked as a storeman and in various other driving and delivering jobs. In about March 2000 the Applicant became a full-time Postal Delivery Officer (‘PDO’), first at the Brunswick Delivery Centre and then at the Preston Delivery Centre. By 2002, the Applicant worked as a PDO in the suburban areas around Fairfield. He would start work each day at about 6.00am and would begin sorting the mail for about two to three hours. He would then go out on his motorcycle and do deliveries. Sometimes he would work overtime on another round within his area, if needed. While delivering mail he would also collect depot bags along the way. On his round there were as many as 900 delivery points (addresses) or more. The Applicant is right hand dominant. This is fortunate because the motorcycle’s controls are on the right handle. He used his right hand for braking and accelerating and his left hand to deliver mail. For as long as the Applicant can remember he has been delivering letters with a sort of flicking motion with his left thumb. He said I flick the letters in the front delivery basket to get the mail for the particular point or address. He said I then pick the mail up and roll the wrist over and flick my left thumb as I deliver the mail into the box. He indicated this flicking motion was quite forceful. In November 2010 the Applicant filed an Incident Report detailing a time when he noticed a sharp pain in his right wrist after he overran a letterbox and had firmly applied the brake. He went to his general practitioner (Dr Ahern) on 8 November 2010 about a separate matter (sore knee). During that consultation the Applicant told his doctor of the earlier incident (severe wrist pain followed by pins and needles), and was told he could have carpal tunnel syndrome. There is no reference in the Incident Report to any left thumb pain. The Applicant’s evidence is that in 2012 he noticed pain in his left thumb but did not worry about it at the time. The pain he said was in the joint where the thumb is joined to the wrist. Although he continued to do his deliveries he noticed the pain would come on every time I flicked a letter into the box or would roll my wrist over to get ready to do so. Early that year, before feeling the pain in his thumb, the Applicant went to see his doctor about continuous pain in both wrists which would wake him at night. He was referred to a specialist (Associate Professor Johnstone) who advised him that he had carpal tunnel syndrome. He was then given injections in his wrists and his left thumb. The pain in the thumb went away but the pain in his wrists remained. He was given a second bout of injections in the wrists which for a time relieved the carpal tunnel pain. The pain in the wrists and the thumb, however, returned once more after a short while.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The Respondent goes further and submits that the Applicant falls under section 53 and/or section 7(7) of the Act with the consequence that the Applicant cannot succeed in any event. ConsiderationCompensable injury By section 14 of the Act the Respondent is liable to pay compensation in accordance with the Act in respect of any injury suffered by an employee if the injury results in death, incapacity for work, or impairment. This has often been called a “gateway” provision: Comcare v Lofts (2013) FCR 220 at [8]. By section 4(9) of the Act an incapacity for work means an incapacity for work suffered by an employee as a result of an injury, being: an incapacity to engage in any work, or to engage in work at the same level the employee was engaged in immediately before the injury occurred. An injury is defined in section 5A(1) as a disease suffered by an employee; or an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, such employee’s employment… A disease is defined in section 5B(1) of the Act as an ailment suffered by an employee; or an aggravation of such an ailment; that was contributed to, to a significant degree, by the employee’s employment... An ailment is defined in section 4(1) of the Act as meaning any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development). A significant degree is defined in section 5B(3) of the Act as meaning a degree that is substantially more than material. Matters which may be taken into account by the Tribunal are set out in section 5B(2) of the Act. They include the duration of an employee’s employment and the nature of, and particular tasks involved in, that employment. Other matters may be taken into account and section 5B places no limit on those. I am satisfied it is correct to describe the Applicant as suffering osteoarthritis in the left thumb. I rely upon the evidence in particular of Associate Professor Johnstone, the treating specialist. I do not consider it could be seriously in issue, as far as the Respondent is concerned, that such condition satisfies the descriptor of an ailment and that, subject otherwise to satisfying section 5B of the Act, it meets the definition of a disease and likewise, subject otherwise to satisfying section 5A of the Act, it is an injury under the Act. The question for me to determine, is whether or not the correct or preferable decision is that the Applicant’s condition is compensable under section 14 of the Act. That is to say whether his condition is an ailment or an aggravation of an ailment that was contributed to, to a significant degree, by his employment as a PDO. Should his condition satisfy this requirement, then it follows he has a disease under the Act and thus an injury which is compensable; if it may also be said that such disease arose out of or in the course of his employment. The word aggravation in section 5B(1) is not defined in the Act except in section 4(1) as including acceleration or recurrence. I have said previously that I see the word aggravation as synonymous with exacerbate. See Muscat and Australian Postal Corporation [2016] AATA 13 at [47]. In Wiegand v Comcare Australia [2002] FCA 1464 at [21] von Doussa J said: I do not think there is any material distinction to be drawn between an exacerbation of an ailment and an aggravation of an ailment. In the context of that case his Honour said both expressions convey the same notion, namely that the depression became worse.

Division	GENERAL DIVISION
File Number(s)	2014/3486
Re	Mark Anderson
APPLICANT
And	Australian Postal Corporation
RESPONDENT

Tribunal	Dr Damien Cremean, Senior Member
Date	8 April 2016
Place	Melbourne