O'Brien and Australian Postal Corporation - [2002] AATA 800

DECISION AND REASONS FOR DECISION [2002] AATA 800

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/655

GENERAL ADMINISTRATIVE DIVISION       )
           Re      ELEONOR O'BRIEN
  Applicant
           And    AUSTRALIAN POSTAL CORPORATION
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member

Date11 September 2002
PlaceSydney

Decision      The tribunal affirms the decision under review. The applicant is entitled to no costs associated with this application.
   [SGD] M J SASSELLA
  Senior Member
CATCHWORDS
WORKERS' COMPENSATION – permanent impairment – thoracolumbar spine – whether restrictions of movement – whether any impairment rating applicable under table 9.6 of Comcare guide – principles relating to medical examinations

Safety, Rehabilitation and Compensation Act 1988 ss 4(1)("impairment", "injury", "permanent"), 24.

Comcare v Amorebieta (1996) 66 FCR 83

REASONS FOR DECISION

11 September 2002 Mr M J Sassella, Senior Member

THE APPLICATION

This is an application to the Administrative Appeals Tribunal ("the tribunal") by Eleonor O'Brien ("the applicant"), date of birth 3 December 1973 (T3), for review of a decision dated 17 May 2001 (T20) in which a primary decision made by a delegate in the Australian Postal Corporation ("the respondent", "Australia Post") dated 4 April 2001 was affirmed. The decision was to reject a claim made on 10 November 2000 (T15) for a lump sum payment of compensation for a permanent impairment in the form of a musculoligamentous strain stemming from a back injury.
THE HEARING
The tribunal convened a hearing in this matter in Sydney on 7 February 2002. Mr T M Rowles of counsel represented Ms O'Brien. Mr B Kelly of counsel represented Australia Post. Ms O'Brien gave evidence at the hearing. The tribunal received into evidence the following documents:

Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1 –T21) provided by the respondent.
Exhibit A1 – Report by Dr W H Wolfenden, neurologist, 5 September 2000.
Exhibit A2 – Applicant's statement of facts and contentions, 12 October 2001.
Exhibit A3 – Report by Dr Wolfenden, 23 October 2000.
Exhibit A4 – Chiropractic receipts.
Exhibit R1 – Respondent's statement of facts and contentions, 24 July 2001.
Exhibit R2 – Report by Dr M Downes, orthopaedic consultant, 26 June 2001.
Exhibit R3 – Receipts for sums paid by applicant for chiropractic treatment.

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS
the compensation incidents

The applicant lodged compensation claims in respect of two incidents, one in 1996 (T5) and another in 1998 (T6). In oral evidence she described them as follows. On 11 August 1996 at 11.00 pm she was lifting a bag of mail weighing over 10 kilograms onto a piece of Australia Post equipment called a ULD. A ULD is square or rectangular, collapsible basket of some size. She carried out a twisting motion from left to right. She felt a "great pain" on her back. It was between the shoulder blades about an inch to the left of the centre. The pain was described as a burning pain. It was sensitive to touch. She…

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 O'Brien 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: [2002] AATA 800
Decision Date: 11 September 2002

CaseChat Overview and Summary

In the matter of O'Brien and Australian Postal Corporation, the tribunal was tasked with determining the extent of the applicant's permanent impairment due to thoracolumbar spinal issues and whether any impairment rating applied under table 9.6 of the Comcare guide. The applicant's x-rays indicated changes, but the tribunal found no relevant restrictions of movement resulting from the impairment. The tribunal had to decide if the applicant's condition warranted an impairment rating under the specified table and whether the principles relating to medical examinations were correctly applied in the decision-making process.

The primary legal issues before the tribunal were the interpretation of "impairment" and "injury" under the Safety, Rehabilitation and Compensation Act 1988, and the applicability of the impairment rating table. The tribunal needed to assess whether the applicant's x-ray changes constituted an impairment that resulted in any restrictions of movement. It also had to consider whether the medical examinations conducted were in accordance with the principles set out in Comcare v Amorebieta. These principles dictate that medical assessments should be comprehensive and based on objective evidence.

In reaching its decision, the tribunal examined the evidence and concluded that the applicant's thoracolumbar spinal impairment was solely reflected in x-ray changes, with no associated restrictions of movement. Therefore, under table 9.6 of the Comcare guide, the impairment rating was zero. The tribunal found that the principles relating to medical examinations were correctly applied, and the decision under review was affirmed. The tribunal also ruled that the applicant was not entitled to any costs associated with this application.

The final orders of the tribunal affirmed the decision under review, stating that the applicant was entitled to no costs. The tribunal's decision was certified as a true copy of the reasons for the decision by Mr M J Sassella, Senior Member, and signed by an associate. The hearing took place on 7 February 2002, and the decision was made on 11 September 2002. The applicant was represented by counsel Mr M T Rowles and solicitor from Jones Staff & Co, while the respondent was represented by counsel Mr B Kelly and solicitor from Sparke Helmore Solicitors.

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

Full text does not contain this section.

Decision

Reasons for decision

The tribunal has found that the applicant's thoracolumbar spinal impairment is manifested only in x-ray changes and results in no relevant restrictions of movement. There is therefore an impairment rating of zero under table 9.6 of the Comcare guide.DECISION The tribunal affirms the decision under review. The applicant is entitled to no costs associated with this application.I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior MemberSigned: ..................................................................................... AssociateDate of Hearing 7 February 2002. Date of Decision 11 September 2002.Counsel for the applicant Mr M T Rowles. Solicitor for the applicant Jones Staff & Co.Counsel for the respondent Mr B Kelly.Solicitor for the respondent Sparke Helmore Solicitors.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.