McKinnon and Australian Postal Corporation - [2001] AATA 297

DECISION AND REASONS FOR DECISION [2001] AATA 297

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A1998/312

GENERAL ADMINISTRATIVE DIVISION          )
           Re      CRAIG IAN McKINNON
  Applicant
           And    AUSTRALIAN POSTAL CORPORATION
  Respondent

DECISION

Tribunal Deputy President B.H. Burns, Air Marshal I.B. Gration, Member Dr M.D. Miller, Member

Date9 April 2001
PlaceCanberra

Decision The decision of the Tribunal is that the decision under review is affirmed.

...........……..(Signed).................….
DEPUTY PRESIDENT B H BURNS
CATCHWORDS
COMPENSATION – aggravation of pre-existing back condition – decision affirmed.
Bessey and Australian Postal Corporation [2000] AATA 404
Australian Postal Corporation v Bessey – Federal Court 20 March 2001

REASONS FOR DECISION

9 April 2001 Deputy President B.H. Burns, Air Marshal I.B. Gration, Member, Dr M.D. Miller, Member

This is an application by Mr Craig McKinnon ("the applicant") for review of a decision of a reconsideration officer of the respondent dated 15 September 1998 (T50) which affirmed upon review a decision of a delegate of the respondent dated 8 July 1998 (T48) to cease liability in respect of a claimed back condition as and from 9 July 1998.
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T52) and supplementary documents (ST1-26), together with 52 exhibits, 13 lodged by the applicant (Exhibits A1-A13) and 39 lodged by the respondent (Exhibits R1-R39). In addition, the Tribunal heard evidence from Dr Chandran, neurosurgeon, Dr Hagan, retired surgeon, Dr Blum, neurosurgeon, Dr Scott, occupational physician, Dr Kelly, general practitioner, Dr Corry, consultant in rehabilitation medicine, Dr Maxwell, orthopaedic surgeon, Dr Carr, rheumatologist, Dr Chen, occupational physician and Dr van Gelderen, consultant surgeon. The applicant was represented by Mr Clark and the respondent was represented by Mr Jones, both of counsel.
The issue before the Tribunal is whether or not the respondent is liable to pay compensation to the applicant in accordance with the Safety, Rehabilitation and Compensation Act 1998 ("the Act") in respect of the applicant's back condition as and from 9 July 1998.
history of the application
The applicant is a 32 year old postal delivery officer who commenced employment with the respondent in 1989. In September 1995 the applicant suffered from a bad flu virus, and was absent from work. He returned to work on 27 September 1995. The applicant signed an injury report form on 17 October 1995 (T3) referring to alleged work related events on 27 and 28 September 1995:
"Nagging pain in lower back and back of left leg for the last few years. Every six months or so the pain becomes severe. Finally after being off work (sick leave) for just over a week, I returned and after one day on the bike, the pain was more painful than ever later that night."
He lodged a claim for compensation on 25 October 1995 (T4) and liability was accepted by the respondent up until 9 July 1998. The applicant applied to this Tribunal on 27 October 1998 (T1).
applicant's evidence
The applicant commenced employment with the respondent in…

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.

Keep reading for free

Create a free CaseChat account to read McKinnon and Australian Postal Corporation and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2001] AATA 297
Decision Date: 9 April 2001

CaseChat Overview and Summary

The Federal Court was asked to review a decision of the Administrative Appeals Tribunal (AAT) in the case of Australian Postal Corporation v. McKinnon, where McKinnon sought compensation for an aggravation of his pre-existing back condition, which he claimed arose from or in the course of his employment with the Australian Postal Corporation. McKinnon had initially lodged a claim for compensation in 1995, which was accepted by the respondent up until 9 July 1998. The AAT found that McKinnon's back condition had not been aggravated by his employment, and McKinnon appealed this decision to the Federal Court.

The primary legal issue before the court was whether the Tribunal erred in finding that McKinnon's pre-existing back condition had not been aggravated by his employment, specifically through the riding of his work motor bike. McKinnon argued that his back condition was significantly exacerbated by his work-related activities, while the Australian Postal Corporation maintained that there was no evidence of aggravation due to work-related incidents.

The Federal Court found that the AAT had correctly assessed the evidence presented. The court agreed with the AAT's conclusion that McKinnon's evidence regarding the causation and extent of his back condition was unreliable and inconsistent. The Tribunal had observed that McKinnon's testimony was selective and defensive, particularly regarding events outside his employment that might have contributed to his condition. The court held that the AAT was entitled to doubt the credibility of McKinnon's evidence, and that the AAT's decision was supported by the evidence. Consequently, the appeal was dismissed.

The Federal Court's decision affirmed the AAT's conclusion that there was no ongoing liability for the Australian Postal Corporation to pay compensation for McKinnon's back condition as of 9 July 1998.

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

He lodged a claim for compensation on 25 October 1995 (T4) and liability was accepted by the respondent up until 9 July 1998. The applicant applied to this Tribunal on 27 October 1998 (T1).applicant's evidence The applicant commenced employment with the respondent in 1989, having previously worked as a labourer, storeman and as a console operator at a service station. He gave evidence that he did not have any problems with his back prior to his employment with the respondent. He said that he first noticed problems with his back in 1992, but initially thought it was a hamstring problem. He said that the pain continued from 1992, but that it varied in intensity, such that it would almost disappear and then come back again every three or four days. Between 1992 and 1993 he rated the pain at about a 2-3 out of 10, and in 1994 at about 7-8 out of 10 at particularly bad times if he had been riding the post bike. He gave evidence that any sudden movement could cause problems. He told the Tribunal that prior to 1995 he had time off work following an incident on his work motorbike on 19 May 1992 in which he strained his wrist, and another incident involving bee stings. He said that following the May 1992 incident, he had developed pain about two weeks later, which he later found out was back pain (about two weeks after the development of the pain), but which at the time he attributed to possible kidney problems. He denied in cross-examination that he only had wrist problems arising as a result of the 1992 incident. He also gave evidence of participating in a tandem skydive sometime in or about early 1995. The applicant testified that in January 1995 he fell off his privately owned Kawasaki 600cc motorbike, when he was riding around a corner at approximately 20-30 kilometres per hour. That accident resulted in a left collarbone injury. In about March 1995 he said that he went to Florey Medical Centre one morning at about 3am to get pain-killers because his own doctor was not available. He could not recall having a further motorbike accident in January 1993. He said that the Kawasaki 600cc was bigger than the work motorbike, had suspension that was ten times better, and was not ridden in an upright position like the post bike is, meaning that it did not affect his back in the way the post bike did. He said that he attributed his current problems to the fact that he knows from experience that when he got off the post bike after riding it, he would have a sore back. The applicant gave evidence that he returned to work on 27 September 1995, having been off work with what he considered to be a bad flu virus. He recalled that he may have only worked for half a day on 27 September 1995 and said that he then had an attack of nerve pain that night after he had gone to bed which required medical attention. The applicant informed the Tribunal that in early 1996 he had an operation on his back and that after the operation if he sneezed or coughed, it would cause pain in the muscles that had just been cut open. He said that after the operation, he did not have the same level of extreme leg pain.

Decision

Reasons for decision

Mr Jones and Mr Clark agreed with a proposition put by the Deputy President that in the event of the applicant's success, given the history of the matter, costs should be taxed by the Deputy President.tribunal's findings, reasons and decision The issue before the Tribunal is as to whether as and from 9 July 1998 there is any on-going liability for the respondent to pay compensation in respect of the applicant's back condition. The applicant claims that he has a reduced capacity for paid employment as a result of a back injury arising out of or in the course of his employment or an aggravation of a back injury (whether or not that injury arose out of, or in the course of his employment) being an aggravation that arose out of or in the course of that employment. The respondent claims on the other hand that there has not been any aggravation of the applicant's back condition brought about by work related events. The Tribunal now turns to the oral evidence given by the applicant. The Tribunal had the advantage of closely listening to and observing the applicant in the giving of his testimony. He was an unimpressive witness. The Tribunal gained the distinct impression that he gave his evidence in such a way as to maximise his chances of linking to the workplace his back condition and symptoms as portrayed by him without regard for the whole picture. He was selective in the portrayal of his symptomatology and from time to time defensive when being cross-examined. The Tribunal gained the distinct impression that he tailored his evidence to exclude and play down events outside the workplace which might be causally relevant from the consideration of the Tribunal and which might throw a different light on his claim that the workplace was the cause of or material contributor to his back problems. Aspects of the evidence given by the applicant when recalled were particularly unimpressive. This evidence related in the main to the sequelae following a work related motor bike accident which the applicant had on 19 May 1992. The Tribunal found the applicant's evidence which was suggestive of injury to his back as a consequence of this accident to be unconvincing, to say the least. He played down the significance, or otherwise of tandem skydiving in 1995 by stating that he didn't think he had a bad back at that point in time and justifying that assertion with evidence that he had "these things coming on every three to six months or so – six or nine months" (Transcript p327). This evidence is in stark contrast with his earlier evidence that he had a constant ache in his lower back from 1993 to the time of giving his evidence and which, in turn, was somewhat at odds with denying in evidence that he'd had a stiff sore back for some years. The Tribunal formed the distinct impression that the applicant's evidence relating to his symptomatology was not of the standard which could be relied upon. It was uncertain and unreliable. Despite the reservations held by the Tribunal as to the applicant's portrayal of his symptomatology, it is clear from the medical evidence, bearing in mind the condition of his back, that the applicant would have, from time to time, experienced low back pain and discomfort when riding his work motor bike. And so the question which needs to be addressed is as to whether the riding of his work motor bike in the course of his employment had any compensable effect upon the applicant for the purposes of the Act. In this regard the Tribunal turns firstly to whether any injury as defined by the Act was caused by the riding of the work motor bike.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.