Montesalvo v Australian Postal Corporation - [2012] FMCA 609

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MONTESALVO v AUSTRALIAN POSTAL CORPORATION

[2012] FMCA 609

ADMINISTRATIVE LAW – Judicial review – appeal from the Administrative Appeals Tribunal – whether the appellant had suffered an injury – whether the appellant’s ailment had been contributed to – whether the appellant had suffered aggravation of an ailment – whether the Tribunal failed to consider submissions – whether there was a failure to consider a disease – no error of law by Tribunal – application dismissed.

Administrative Appeals Tribunal Act1975 (Cth), ss.42, 43
Safety, Rehabilitation and Compensation Act1988 (Cth), ss.4, 5A, 5B, 14, 62, 64

Australian Postal Corporation v Sellick [2008] FCA 236
Comcare Australia v Rowe [2002] FCA 1034
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26
Fairweather v Australian Postal Corporation [2009] FCA 1290
House v Defence Force Retirement and Death Benefits Authority [2011] FCAFC 72
Hughes v Australian Postal Corporation [2002] FCA 1645
Industry Research & Development Board v Bridgestone Australia Limited [2004] FCAFC 56
Lang v Comcare [2007] FCA 47
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
NABE v Minister for Immigration and Multicultural and Indigenous Affairs(No.2) (2004) 144 FCR 1
Re Dennis Willcox Pty Ltd v the Commissioner of Taxation of the Commonwealth of Australia [1988] FCA 123

Applicant:

GLENDA MONTESALVO

Respondent:

AUSTRALIAN POSTAL CORPORATION

File Number:

BRG 680 of 2011

Judgment of:

Burnett FM

Hearing date:

10 February 2012

Date of Last Submission:

10 February 2012

Delivered at:

Brisbane

Delivered on:

11 July 2012

REPRESENTATION

Counsel for the Applicant:

Mr Richards

Solicitors for the Applicant:

Slater & Gordon

Counsel for the Respondent:

Mr Clark

Solicitors for the Respondent:

DLA Piper Australia

ORDERS

That the Appeal be dismissed.
That in default of application by either party made within seven (7) days of this order for other orders, the appellant pay the respondent’s costs to be assessed on the standard basis.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 680 of 2011

GLENDA MONTESALVO

Applicant

And

AUSTRALIAN POSTAL CORPORATION

Respondent

REASONS FOR JUDGMENT

Introduction

On 12 March 2010 the appellant Glenda Montesalvo was an employee of the respondent, Australian Postal Corporation. At that time, she had a largely asymptomatic medical condition later diagnosed as adhesive capsulitis. In the course of her employment she reached into a bin containing stacked ‘flutes’ or receptacles of mail at a sorting centre. She says that she immediately experienced intense pain which has not abated and which led to a frozen shoulder condition.
As an employee of the Australia Postal Corporation, she was entitled to make a claim for compensation pursuant to Part 2 of the Safety, Rehabilitation and Compensation Act1988 (Cth) (SRC Act). She made a claim for rehabilitation and compensation on 16 March 2010 which was accepted for “calcirific tendonitis right shoulder,” from 12 March 2010, that being the date of an incident she alleges gave rise to an “injury.”
However, following her presentation for assessment by a medical specialist, Dr Hazelton, the respondent decided to exercise its discretionary powers under s.62(1) SRC Act and reconsidered its earlier determination. Upon reconsideration, the respondent considered that it was not liable under s.14(1) SRC Act to pay compensation to the applicant.
The appellant sought review of the delegate’s decision pursuant to s.64 of the SRC Act and upon review the decision was affirmed.
In his reasons for decision, the Senior Member noted that the appellant claimed that the respondent was liable under s.14 of the SRC Act for the shoulder condition and that the matter was in dispute between the parties. He noted that the dispute turned on the interpretation of s.5A of the SRC Act, specifically as to whether or not the evidence established that the appellant’s shoulder condition arose out of, or in the course of, her employment. He determined that it did not. In summary, he concluded that just because there was a temporal connection between an event and the applicant’s symptomic complaints that did not of itself prove causation, particularly in this case where the evidence pointed to another acceptable explanation.

The Issues on Appeal

In her notice of appeal the appellant complains that, in making that determination, the Tribunal:
a)Failed to consider, interpret and apply s.5B SRC Act when determining whether the appellant had suffered an “injury” as a result of her employment;
b)Failed to consider, interpret and apply s.5B SRC Act when determining whether the appellant’s ailment was contributed to, to a significant degree, as a result of her employment;
c)Failed to consider, interpret and apply s.4 and s.5B SRC Act when determining whether the appellant suffered an aggravation of an ailment as a result of her employment;
d)Failed to consider the appellant’s submission of substance:
i)That her ailment was contributed to, to a significant degree, as a result of her employment with the respondent;
ii)Her employment with the respondent aggravated or accelerated her ailment; and
e)Failed to provide reasons for its decision in contravention of the requirements of s.43(2) and s.42(2B) of the Administrative Appeals Tribunal Act1975 (Cth) (AAT Act).
The questions raised by the applicant in the Amended Notice of Appeal were addressed in four grounds which can be summarised as follows:
a)Ground 1- The Tribunal failed to consider, interpret and apply the definition of disease: s.5B SRC Act; and whether the appellant’s ailment, as an integer of that condition, was aggravated or contributed to, to a significant degree, by the appellant’s employment;
b)Ground 2 - The Tribunal failed to consider the appellant’s submission that her ailment was aggravated or accelerated by her employment, a failure which constituted an error of law;
c)Ground 3 - The Tribunal failed to consider the appellant’s submission that her ailment was aggravated or accelerated by her employment, a failure which was capable of affecting the outcome;
d)Ground 4 - The Tribunal failed to include findings on material questions of fact as to whether the appellant suffered a disease or whether the appellant’s ailment, as an integer of that condition, was aggravated by the appellant’s employment, or the ailment was contributed to, to a significant degree, by the appellant’s employment.

Ground 1 – Failure to consider disease

The appellant complains that the Tribunal failed to consider, interpret and apply the definition of disease and whether the appellant’s ailment, as an integer of that condition, was aggravated or contributed to, to a significant degree, by the appellant’s employment.
It was common between the parties that the appellant’s condition was a “disease.” So much was accepted by both medical experts. It was also agreed that the disease was not caused by the appellant’s employment. The significance of the characterisation of the condition is important because the respondent’s counsel submitted that the distinction gives rise to different causal tests. For an “injury” to be compensable, it must arise “out of, or in the course of [employment].” A “disease” will only be compensable in circumstances where the employment has contributed “to a significant degree” to the ailment or its aggravation. He submitted that it is accepted that the test for “disease” is much more stringent. I accept the respondent’s submissions on that point.
Notwithstanding how the Amended Notice of Appeal set out the appellant’s claim, the question resolved into one of whether or not the appellant’s complaint arose out of, or in the course of, her employment or was aggravated or contributed to, to a significant degree, by it (such precise consideration being affected by the appropriate characterisation of the appellant’s condition). That is to say whether it was an injury in terms of being a disease: s.5B; meaning an ailment or aggravation of an ailment that was contributed to a significant degree by the appellant’s employment: s.5A(1)(a); or an injury being a physical injury arising out of, or in the course of, the appellant’s employment: s.5A(1)(b); or, an injury being an aggravation of a physical injury which arose out of, or in the course of, that employment: s.5A(1)(c).
However, this issue of causation was common to the appellant’s complaint. The appellant contended that her condition, however it be characterised, was causally linked to the incident of 12 March 2010. The respondent, in seeking to uphold the Tribunal’s decision, says that it was not.
Although the appellant’s grounds raise a failure to consider each of the various characterisations provided for the term “injury” by s.5A(1), each has in common the need to demonstrate causation. The Tribunal approached this application on that basis, and for the reasons which follow I agree that the application was open to be resolved on this basis. I also find that, despite the Tribunal’s failure to specifically address each of the possible characterisations of injury which could be contended for, the ultimate result would have been the same.
The source of the appellant’s principal argument concerning the respondent’s failure to consider whether the appellant’s condition was a disease or aggravated injury was contended to be apparent by reference to clause 2 of the reasons for decision. It is plain from clause 2 of the reasons that the Senior Member limited the question of liability under s.14 to the resolution of a dispute on the interpretation of s.5A, the injury provision. Within its terms, s.5A picks up “disease.” Section 5B SRC Act proceeds to define “disease,” which further necessitates a consideration of ailment, a term defined in s.4. Disease is defined to mean “an ailment … that was contributed to, to a significant degree, by the [appellant’s] employment …” An “ailment” is “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”
The appellant contends that the record on its face demonstrates that the Tribunal omitted to address the matter of disease and also to provide written reasons its decision concerning that matter. It says this was in error. In response, the respondent says it was unnecessary to address the question of disease or aggravation because neither issue was raised in the application, which on its face was limited to injury, but that even if it were there was no causal link between the appellant’s condition and her employment. That is, that the appellant’s condition, howsoever characterised, did not arise out of the course of her employment.
In considering the application, the Senior Member accepted the appellant’s account of the incident and particularly that she immediately experienced intense pain while reaching in to a receptacle bin to retrieve boxes of mail, and that the pain had not then abated. He accepted that she was “fine” before the incident and that she had never previously experienced serious or persistent pain in her shoulders or arms. Furthermore, he accepted that there was a temporal connection between the appellant reaching into the receptacle at the mail centre and the onset of symptoms which resulted in the appellant’s frozen shoulder.
However, while accepting that there was a temporal relationship, the Tribunal did not accept any causal relationship between those two factors. Indeed, in ultimately determining the issue of causation against the appellant the Tribunal relied upon the evidence of Dr Hazelton, which it preferred to the evidence of Dr Douglas. In his evidence, Dr Hazelton opined that a release of crystals (which result in acute irritation and inflammation of the joint) would not lead to pain and inflammation until several hours after the trauma to the joint precipitating such release. That is to say that the Tribunal accepted Dr Hazelton’s view that a trauma would not result in the almost immediate symptomology experienced by the appellant. Following Dr Hazelton’s reasoning, the condition which gave rise to the appellant’s symptomology pre-dated the traumatic event complained of. Furthermore, based on the preferred evidence of Dr Hazelton, the Tribunal doubted that the incident in the workplace would have caused the release of the crystals, which the evidence indicated caused the symptoms that the appellant complained of. Although not expressed as such, it was accepted that the import of this evidence even was that the incident did not aggravate the appellant’s pre-existing condition. In fact, the evidence and finding was that the appellant’s experience of immediate pain would be inconsistent with what would be expected if the crystals were released as a consequence of trauma. It follows that the Tribunal could not be satisfied that her condition was one that arose out of or in the course of her employment.
The appellant complained that in adopting this reasoning the Tribunal failed to consider whether the appellant had suffered a “disease” under s.5A(1)(a) or an “aggravation” of a physical injury that arose under s.5A(1)(c) SRC Act. She complains that the Tribunal’s reasons limited its consideration to physical injury under s.5A(1)(b) SRC Act. She argued that the Tribunal was required under the SRC Act to consider and determine whether her action of pulling the flutes toward her aggravated her condition and thus had contributed to a significant degree to her shoulder condition; s.5A(1)(a) and s.5B SRC Act. Alternatively, she complained that the Tribunal was required under the SRC Act to consider whether the appellant’s action of pulling the flutes toward her had aggravated her shoulder condition particularly given that it had previously been asymptomatic; s.5A(c) SRC Act.
The essence of the appellant’s complaint revolves around her contention that the Tribunal did not consider injury in the context of:
a)A “disease” suffered by an employee (as informed by s.5B) SRC Act: s.5A(1)(a); or
b)An “aggravation” of a physical injury that arose out of or in the course of the appellant’s employment: s.5A(1)(c).
It is plain on a reading of the decision that the matter of disease was not expressly addressed. In this instance, the appellant contends that, by reference to various documents before the Tribunal, the Tribunal ought to have been on notice that the other two grounds were being pursued by the appellant. For the respondent it was submitted that the Tribunal was not required to make findings in respect of those matters because those matters were not in issue before it. In particular, the respondent referred to the issues for consideration of the Tribunal which were resolved by the memorandum of Professor Morley. Counsel for the respondent contended that just prior to the commencement of the hearing an amendment was made to the statement of facts and contentions which removed the matter of disease from contention. Arguably, this was based upon Professor Morley’s Neutral Evaluation Report and his observation that the parties differed on two fundamental grounds.
The original statement of facts and contentions provided at clause 4.2:
“In the alternative, the Applicant suffered from a disease that was significantly contributed to by her employment, namely calcify right supraspinatus tendouitis [sic].”
In the proposed amendment to the statement of facts and contentions which was opened at the hearing, paragraph 4.2 was substituted with the following, namely:
“In the alternative, the pulling incident on 12 March 2010 aggravated the pre-existing, asymptomatic, calcific right supraspinatus tendonitis causing it to become symptomatic.”
This amendment appears to reflect the point of difference between the two competing hypotheses Professor Morley assessed. Namely, whether or not the appellant had a pre-existing condition or disease and whether it was aggravated by the workplace incident.
At the same time, contentions 4.1 and 4.3 were also deleted and substituted to emphasise the appellant’s claim that she had suffered an injury or an aggravation of an injury in the course of her employment.
Notwithstanding the amendment to the contentions advanced by the applicant, the issues remained the same. In paragraph 3 the applicant identified the issues as including:
“3.2 Whether from 12 March 2010 to the present, the Applicant continues to suffer from an injury or disease that was significantly contributed to by her employment with Australia Post?”
Plainly, the issue of the characterisation of her condition remained live, notwithstanding the amendment to the contentions. In any event, given the definition of injury provided for in s.5A,[1] I am satisfied that the issue of characterisation of her condition was to be determined by the Tribunal. However, that in turn would have required a consideration of the causal element to satisfy the definition of any condition, howsoever characterised.
[1] Which is defined to mean, inter alia, “disease” which in turn picks up s.5B and the definition of “ailment” in s.4.
Furthermore, the appellant sought to demonstrate that it was plain from the manner in which the application was run before the Senior Member that the issue of “disease” in contrast to “injury” was alive. Respectfully, that is not so, particularly because of observations made by the appellant’s counsel. For instance, in opening, the appellant’s counsel remarked:
“The issue that you will be asked to determine, Senior Member, is whether the applicant’ s shoulder injury was caused in the course of – arose out of her employment. I have – I will seek leave to amend the statement of facts, issues and contentions to clarify what we’re asking you to determine … it [the amendment to the statement of facts] reflects the medical evidence that we intend to call in the support of the applicant’s case.”
Later, in cross-examination of Dr Hazelton, the appellant’s counsel stated:
“We’re in agreement I think here that it’s not a work related disease or condition so you needn’t worry about that aspect of it.”[2]
[2] T page 40 line 32.
In summary, while it seems from the amended statement of contentions that the issue of disease remained alive, this was resiled from in the early stages of the hearing and affirmed by the subsequent pleading of her case. Undoubtedly, this caused confusion in the proceeding, particularly given the nuanced effect of such a position in the context of the proceeding. However, for reasons which follow I do not think that this confusion occasioned any miscarriage of justice. From its reasons for decision, it is apparent that the Tribunal did indeed not make express findings on those two matters. The Appellant submitted that this failure arose because the Tribunal failed to consider, interpret and apply the provisions of the SRC Act.
The respondent contends that even if the Tribunal were required to explore this issue and rule upon it, given the evidence accepted by the Tribunal the appellant’s injury would not have satisfied the requirements of the definition provided in s.5A(1)(a) and s.5B, nor s.5(1)(c) SRC Act. The respondent contended that, having accepted the evidence of Dr Hazelton, the inescapable conclusion from his evidence was that the appellant’s symptomology as experienced at the time of the industrial event was not causally linked to that event.
As the Senior Member noted in his reasons for decision at paragraph [12], when considering the evidence of Dr Hazelton:
‘[12] [Dr Hazelton] said his review of the scientific literature caused him to doubt that trauma occurring in the workplace would cause the release of crystals. He explained in oral evidence that the release of crystals tended to occur spontaneously. He added that the applicant’s account of experiencing immediate pain was inconsistent with what one would expect if the crystals were released as a consequence of trauma. He said it would ordinarily take 12 hours or more after the release of the crystals for the acute irritation and inflammation to result in pain. He said acute events like this did not occur in the way [the applicant] described. That tends to suggest her pain must have another explanation. He was not clear on what that alternative explanation might be: perhaps the incident ‘drew attention’ to the applicant’s previously asymptomatic condition, he offered.”

Significantly, the respondent contended that the Senior Member, when analysing and considering the opposing views of Dr Douglas and Dr Hazelton on this issue of the temporal connection between the two events, preferred the view of Dr Hazelton.
Plainly, this finding of fact was critical to determining the question of whether or not the appellant’s condition was related to the workplace incident. The Tribunal addressed “injury” in terms of s.5A(1)(b) expressly in its reasons by concluding, in reliance upon Dr Hazelton’s evidence, that although there was a temporal relationship between the incident and the appellant’s symptomology it was not satisfied that there was a causal relationship between the two was such that they arose out of or in the course of her employment. The Tribunal’s finding on that matter was open to it and in my view cannot be disturbed.
Significantly however, that logic also applies to injuries in the nature of disease (s.5A(1)(a)) or aggravation (s.5A(1)(c)). That is so despite the nuanced difference between the relevant contribution required in respect of an aggravated injury as opposed to a disease; that is, a disease must have been contributed “to a significant degree” by the employee’s employment. For present purposes it is unnecessary to examine the question of “significant degree” so far as it concerns disease. Ultimately, what had to be resolved in order to determine whether the injury is one in respect of disease or aggravation is whether or not it had a causal link with employment. In the case of disease, being an ailment or aggravation of ailment contributed to a significant degree by the employee’s employment (s.5B(1)); or, in the case of an aggravation of physical injury, being an aggravation that arose out of the course of that employment (s.5A(1)(c)). The matter of contribution is directed to the question of relativeness rather than absoluteness and, notwithstanding that, must still have some causal link.
I accept the respondent’s submission that in this case, by reason of the Senior Member’s findings, there could be no causal link between disease, injury or aggravated injury (howsoever characterised) and the employment.
Even if the matters complained of were not expressly raised by the appellant, an issue arises as to whether or not the Tribunal ought to have proceeded to determine that matter. The respondent says not. In support of its contention it particularly relies upon the observation of the Full Court of the Federal Court in House v Defence Force Retirement and Death Benefits Authority [2011] FCAFC 72 where at [31] Greenwood J, with whom Logan J agreed, stated,
“It follows therefore that when the Court is considering whether an applicant should be denied relief on the ground that a demonstrated error of law could not have materially affected the Tribunal’s decision, the Court must be satisfied that the error of law did not deny the aggrieved applicant of the possibility of a successful outcome … A test framed by the Full Court in Hill v Repatriation Commission in terms of the Court not refusing relief if satisfied that the error of law “arguably even possibly” affected the decision reached is simply an emphatic restatement of the test in Ex Parte Aala and applied in Lu v MIMIA that relief will not be refused in the face of demonstrated error unless there is no possibility of a successful outcome.”
Given the finding of the Tribunal, there is “no possibility of a successful outcome” irrespective of the characterisation of the condition. It follows that even if there was a failure by the Tribunal to address the specific conditions of “disease” or “aggravation of physical … injury” thereby giving rise to an error of law, adopting the principles in House v Defence Force Retirement and Death Benefits Authority, no right of remedy is enlivened.
In any event, I am not satisfied that there was a failing by the Tribunal to consider the matter simply because of the omission of specific reference to the terms ‘disease’ and ‘aggravation’ in the reasons. Firstly, there is the manner of approach to be adopted in proceedings before administrative tribunals. In NABE v Minister for Immigration and Multicultural and Indigenous Affairs(No.2) (2004) 144 FCR 1 at [58], when addressing this issue, the Full Court observed:
“[58] The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it – Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901; (2000) 106 FCR 157 at 180 [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated – Paramananthan v Minister for Immigration and Multicultural Affairs [1998] FCA 1693; (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287 at 293 – 294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant – Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) [2001] FCA 263; (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it – SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 120; (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.”
The principal issue for determination was expressed at the outset. Nothing in the opening suggested that the original broad dispute remained on foot, to the extent that the appellant’s opening superseded and narrowed the issues as originally articulated in the application and written contentions. So much appears to have been acceded to the appellant in the manner in which she conducted her case. The Tribunal’s inquiries were limited accordingly.
Secondly, having regard to the observations of the Tribunal that the matter turned on the interpretation of s.5A and whether the appellant’s condition arose out of her employment, it seems apparent that the appellant’s present contentions are made with an eye too finely attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [271]-[272].In this case, the condition, irrespective of how it could be characterised, fell within s.5A. It follows that to criticise and infer that the Tribunal failed to consider conditions beyond an “injury” is to read the decision with too great an expectation.
Given the common need to establish causation irrespective of which condition the appellant was ultimately assessed as suffering, the fact remains that on the preferred evidence causation could never be established. Given the Tribunal’s finding that the evidence did not establish causation and that its finding on causation was applicable irrespective of how the appellant’s condition was characterised, it was unnecessary to formally address the characterisations of ‘disease’ or ‘aggravation’: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [73]. The Tribunal plainly understood the nature of the dispute before it. In that sense, it did not misstate or mischaracterise the issue to be resolved. Indeed, it proceeded to determine the only issue in dispute as articulated by the appellant’s counsel in his opening, namely causation irrespective of characterisation of the appellant’s condition. No doubt a basis for complaint would arise if, having found causation, there was a failure to consider the other factors in the definition to enable the nature of the condition to be identified. However, on the critical matter common to each condition, the Tribunal was clear and unequivocal. In my view it cannot be criticised for its approach.

Grounds 2 – Failure to consider submissions – error of law

The appellant submits that a failure to consider a submission of substance may constitute an error of law; Re Dennis Willcox Pty Ltd v the Commissioner of Taxation of the Commonwealth of Australia [1988] FCA 123 at [21]; Industry Research & Development Board v Bridgestone Australia Limited [2004] FCAFC 56 per Tamberlin, Sackville and Selway JJ at [26]; Fairweather v Australian Postal Corporation [2009] FCA 1290; Comcare Australia v Rowe [2002] FCA 1034; Australian Postal Corporation v Sellick [2008] FCA 236. It was contended for the appellant that a substantive part of her case was that she suffered a disease and/or an aggravation of her shoulder condition and that, accordingly, the Tribunal’s failure to consider that constituted an error of law. In particular, it was submitted for the appellant that this case was similar to that decided by Madgwick J in Hughes v Australian Postal Corporation [2002] FCA 1645 where his Honour, allowing the appeal, determined that as the Tribunal Member in the original hearing had found that the worker had suffered some “minor injury” in a fall, the Tribunal had then erred by not considering whether the minor injury resulted in an injury or incapacity under the SRC Act.
However, each of those cases is distinguishable. In none of those cases can it be said that, upon an examination of the evidence on the claimed critical point, the evidentiary point remained open to be determined. Nor could it be said to have been open to be determined in favour of the relevant party, such that the failure to consider the point in issue would have turned, or could have turned, the original decision maker. For instance, in Hughes v Australian Postal Corporation (supra) the critical point was whether or not the Tribunal addressed a claim for compensation for a brief “closed period” between the date of the accident and a date shortly after. The respondent to the claim contended that the applicant’s symptoms related to a later injury well after the closed period. While the Tribunal accepted that the applicant had sustained a minor injury following the alleged event, it proceeded to focus upon the long term financial aspects of the claim. It was found by the Federal Court to have ignored the issue surrounding the “closed period.” Had it not done so then it may have determined the compensation point in favour of the applicant despite its conclusion that there was no entitlement to long term benefits. Accordingly, the failure to determine that point was critical. In this case, irrespective of any actual failure by the Senior Member to expressly address the question of disease or aggravated injury, the answer remains the same. Namely, that there is no causal link between the disease or aggravated injury and the employment. Accordingly, even if the submission ought to have been addressed by the Tribunal, its failure to do so would not have had any material bearing on the outcome.
It was further submitted on behalf of the appellant that the Tribunal failed to give reasons for its conclusion that the respondent was not liable for her injury on 12 March 2010 under the SRC Act. It is not in dispute that the Tribunal is obliged to include its findings on material questions of fact a reference to the other material on which those findings were based: s.43(2B) AAT Act; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87] to [97]; Lang v Comcare [2007] FCA 47 at [53]. Here however, the Tribunal has provided reasons as to why it concluded there was no causal link between the injury and employment. That finding binds the application of s.5A(1)(a) and s.5A(1)(c) in terms of disease and aggravation of injury.
The appellant contended that this failure to consider her having suffered an aggravation of her shoulder condition or of a disease under the SRC Act was a failure by the Tribunal to take into account a relevant consideration. However, I think that, given the causal issue, the need for this matter to be specifically addressed was rendered inutile.

Ground 3 – Failure to consider submissions – capable of affecting outcome

Ground 3 of the Amended Notice of Appeal contends that in the alternative the failure by the Tribunal to consider her submission was equally egregious because a proper consideration of that matter would have led to a different outcome in the application. I do not accept this to be so. As noted earlier, the significance of the characterisation of the condition bears upon the nature of causation required to satisfy the particular condition. A finding that there is no causation addresses either test, that being “an aggravation … that was contributed to, to a significant degree, by the employee’s employment” or an “injury arising,” or “an aggravation that arose out of, or in the course of … employment.”

Ground 4 – Failure to provide reasons

By this ground, the appellant complained that the Tribunal failed to include findings on material questions of fact as to whether the appellant suffered a disease or whether the appellant’s ailment, as an integer of that condition, was aggravated by the appellant’s employment, or the ailment was contributed to, to a significant degree, by the appellant’s employment.
For reasons which I have addressed in Ground 1, this ground fails. The Tribunal Member had concluded as a matter of fact that there was no causal link between the appellant’s condition, howsoever defined, and the workplace incident. Considering that the court should not read the Tribunal’s decision with ‘an eye keenly attuned to error,’ I think it would be unduly critical to find error as contended for by the appellant in circumstances such as these.

Conclusion

This appeal was based upon an allegation that the Tribunal failed to properly interpret and apply s.5A SRC Act. It was contended that the Tribunal also failed to consider matters which may have affected the outcome and that it did not provide adequate reasons. I am not satisfied that the Tribunal has failed on any ground alleged, because at its heart it found as a matter of fact that the appellant’s condition had no causal link to any alleged workplace incident. The Tribunal explained its reasons for that finding and the way in which they were seminal to its conclusion; as such, that conclusion cannot be disturbed.

Order

Appeal dismissed.
That in default of application by either party made within seven (7) days of this order for other orders, the appellant pay the respondent’s costs to be assessed on the standard basis.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Burnett FM

Date: 10 July 2012