McDermott and Australian Postal Corporation - [2003] AATA 848

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 848
ADMINISTRATIVE APPEALS TRIBUNAL )N2001/900; N2002/571; N2002/959

GENERAL ADMINISTRATIVE DIVISION

Re COLIN McDERMOTT

Applicant

And

AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal P. J. Lindsay, Senior Member
Dr M.E.C. Thorpe, Member
Date29 August 2003
PlaceSydney

Decision The Tribunal affirms the decisions under review.
.............................

P.J.Lindsay, Senior Member

REASONS FOR DECISION

29 August 2003 P. J. Lindsay, Senior Member,
Dr M.E.C. Thorpe, Member

1.      Colin McDermott (the applicant) has made three applications to the Tribunal in respect of decisions by the Australian Postal Corporation (the respondent):
·     Proceeding N2001/900 concerns a determination made by a delegate of the respondent on 11 May 2001 denying liability for compensation for permanent impairment in respect of bilateral knee conditions. The determination was affirmed by the respondent on 18 June 2001.
·     Proceeding N2002/571 concerns a determination made on 22 January 2002 that the respondent was from that date no longer liable to pay compensation. By its decision on 17 April 2002 the respondent affirmed the determination that from 22 January 2002 the respondent was no longer liable for compensation for the applicant's condition being multiple soft tissue abrasions to both knees, right ankle, left shoulder and right wrist sustained in an accident on 6 July 1994.
·     Proceeding N2002/959 concerns review of a decision made by a delegate of the respondent on 6 May 2002. This was a further decision by the respondent to deny all liability with respect to the applicant’s injury of 6 July 1994 including any consequential injuries or medical conditions. It was made in response to the applicant’s assertion that as a result of the accident on 6 July 1994, the applicant developed stress, anxiety and a depressive condition.
2. At the hearing, Mr Perry of counsel appeared for the applicant and Mr Skinner of counsel appeared for the respondent. The applicant gave evidence. The Tribunal had before it three sets of documents produced pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T Documents), one relating to proceeding N2001/900 (T), a second relating to proceeding N2002/517 (Ta), and a third relating to proceeding N2002/959 (Tb), as well as the exhibits tendered during the hearing.
Background
3.      Mr McDermott was born on 26 January 1963 and commenced work with the respondent in 1990 as a Postal Delivery Officer. Since 1992 he has had a number of work related injuries to his knees. This matter relates to an accident that happened on 6 July 1994 (T10). Mr McDermott claimed compensation on 14 July 1994 (T14). On 15 July 1994, the respondent accepted liability for soft tissue abrasions to both knees, right ankle, left shin, left shoulder, and bruised kidneys (T17). Weekly compensation payments commenced. He resumed work on 4 October 1994 on selected duties (T46-157) and resumed full duties on 22 March 1995 (T46-157). He was paid compensation for subsequent periods when he was unfit to perform his normal work. In August 1996 he experienced problems with his knees.…

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: [2003] AATA 848
Decision Date: 29 August 2003

CaseChat Overview and Summary

The applicant, McDermott, sought review of decisions by Comcare, which had refused to accept liability for certain injuries sustained by the applicant during employment with the Australian Postal Corporation. The primary dispute was over the acceptance of liability for injuries to the knees and post-traumatic stress, and whether these should cease. Additionally, there was a contention over whether the osteoarthritis in the knees was asymptomatic prior to the knee injuries and whether the effects of its aggravation continued.

The key legal issues before the court were the determination of the extent of Comcare's liability for the injuries claimed by the applicant, specifically focusing on the aggravation of pre-existing osteoarthritis and its relation to the injuries sustained. The court needed to decide whether the osteoarthritis was asymptomatic prior to the knee injuries, and if the aggravation of the condition continued to have effects. These issues required interpretation of relevant statutory provisions and case law, particularly concerning the definition and assessment of permanent impairment.

The court, after examining the evidence and submissions, found that the decisions of Comcare were well-reasoned and supported by the evidence. The court affirmed that the aggravation of the pre-existing osteoarthritis was a result of the injuries sustained, but concluded that the effects of this aggravation did not continue beyond the point of acceptance of liability for the initial injuries. The court held that the osteoarthritis was not asymptomatic prior to the knee injuries, and thus, Comcare's liability for the injuries to the knees and post-traumatic stress should cease. The reasoning was based on the statutory framework under the Safety, Rehabilitation and Compensation Act 1988, and the relevant case law including Martin v Australian Postal Corporation and Australian Postal Corporation v Bessey.

The Tribunal affirmed the decisions under review, thereby dismissing the application for review and upholding the position that Comcare's liability for the injuries to the knees and post-traumatic stress had ceased.

Orders

Orders of the court

The Tribunal affirms the decisions under review.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION
Re		COLIN McDERMOTT