O'Sullivan and Australian Postal Corporation
[2003] AATA 1344
•24 December 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1344
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/209 and Q2002/290
GENERAL ADMINISTRATIVE DIVISION ) Re JOHN KEVIN O'SULLIVAN Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Mr B J McCabe, Senior Member Date24 December 2003
PlaceBrisbane
Decision The Tribunal affirms the decisions under review. .................(Sgd)....................
Senior Member
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/209 and Q2002/290
GENERAL ADMINISTRATIVE DIVISION
)
Re JOHN KEVIN O’SULLIVAN Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
ORDER TO AMEND DECISION [2003] AATA 1344
Tribunal Senior Member B J McCabe Date4 February 2004
PlaceBrisbane
WHEREAS the Tribunal made a decision in this matter on 24 December 2003, and it has come to the Tribunal’s attention that there were errors in that;
AND WHEREAS the Tribunal wishes to amend the decision so as to rectify the errors with the least cost and inconvenience to the parties;
THE TRIBUNAL ORDERS, pursuant to section 43AA of the Administrative Appeals Tribunal Act 1975, that:
1. The decision page be amended as follows:
The Tribunal affirms the decision under review in Q2001/209;
The Tribunal sets aside the respondent’s decision to deny liability under s14 of the Safety, Rehabilitation and Compensation Act 1988 in Q2002/290.
………(Sgd)……………
SENIOR MEMBER
CATCHWORDS
WORKERS’ COMPENSATION – jurisdiction – application for compensation for permanent impairment – shoulder condition – whether permanent impairment claim made – claim not considered by Comcare – deemed refusal – Comcare received notice of claim
WORKERS’ COMPENSATION – liability – permanent impairment – shoulder condition – degenerative condition – whether caused by work – no causal connection found
Safety, Rehabilitation and Compensation Act 1988
Australian Postal Corporation v Oudyn [2003] FCA 318
REASONS FOR DECISION
24 December 2003 Mr B J McCabe, Senior Member Introduction
1. John O’Sullivan claims he developed a shoulder condition as a result of his work at Australia Post. He says Comcare is liable to compensate him pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988.. He also seeks compensation for permanent impairment under ss 24 and 27 of the Act.
2. Australia Post is the respondent in these proceedings. It initially paid for Mr O’Sullivan’s treatment but it decided to cease compensation from 9 May 1995. The applicant asked Australia Post to reconsider its decision on 3 February 2000 following new medical advice. The applicant then lodged a claim for permanent impairment. The respondent issued a determination on 1 September 2000, and the Reconsideration Delegate affirmed the decision on 1 March 2001.
First: A Jurisdictional Question
3. A jurisdictional problem becomes apparent at this point. Australia Post says its reviewable decision dated 1 March 2001 related to the claim under ss 4 and 14. The respondent has refused to make a decision with respect to the claims under ss 24, 26 and 27 of the Act. In the absence of a determination accepting liability under ss 4 and 14, Australia Post says there is no point in making a decision under ss 24, 26 and 27. Without a reviewable decision as to ss 24, 26 and 27, the Tribunal’s jurisdiction is not enlivened.
4. The applicant says he did make a claim for permanent impairment and the decision-makers were aware of that, or should have been having regard to the state of the correspondence and the medical reports. A letter from the applicant’s solicitors dated 8 March 2000 was tendered in evidence. That letter clearly refers to a claim under ss 24 and 27. Having asked for a determination, the applicant says a failure to respond is deemed to be a decision pursuant to s 3(3) of the Administrative Appeals Tribunal Act 1975.. As I understood it, there was an alternative argument: having been alerted to the claim for permanent impairment by the letter of 8 March 2000 and the references in the medical reports to permanent impairment, the respondent’s decision of 1 March 2001 should be taken to include a rejection of the applicant’s claim for permanent impairment as well as the claim under s 14.
5. The respondent says it has no record of the letter of 8 March 2000 and was not therefore on notice of any claim in respect of permanent impairment. In those circumstances, it says it should not be deemed to have made a decision.
6. The Federal Court’s recent decision in Australian Postal Corporation v Oudyn [2003] FCA 318 is relevant. In that case, the claimant had sought compensation under ss 4, 14, 24 and 27. The decision-maker denied liability under ss 4 and 14 and said it was therefore unnecessary to consider the claims under the other sections. The Tribunal and the Federal Court disagreed. The Court said there was a reviewable decision in relation to the permanent impairment – the silence amounting to a decision to deny liability.
7. The only relevant difference in this case is the fact that the respondent does not have any record of the letter of 8 March 2000. Given that the doctor’s report considered by the decision-maker also included a reference to permanent impairment so as to put the respondent on notice of a claim, I do not think this gap in the respondent’s files should be held against the applicant. In those circumstances, I am satisfied there are two reviewable decisions, including a decision to deny liability for permanent impairment.
The Material before the Tribunal
8. The Tribunal was provided with the sets of documents required under s 37 of the Administrative Appeals Tribunal Act 1975. It was also provided with the following statements, documents and medical reports:
§Letter requesting s 24 and s 27 assessment, 8 March 2000 (Exhibit 2)
§Report of Dr Boys dated 9 August 2001 (Exhibit 3)
§Letter from Dr Nutting to Dr Curtis dated 22 November 1999 (Exhibit 4)
§Diagram of shoulder joint (Exhibit 5)
9. The applicant gave oral testimony at the hearing. The following witnesses were also called:
§Dr Nutting
§Dr Curtis
§Dr Eaton
§Dr Castrisos
§Dr Boys
10. Ms Cochrane represented the applicant, and Mr Bickford represented the respondent.
The Facts
11. Mr O’Sullivan commenced employment with Australia Post in 1985. He worked in a variety of occupations before he went to Australia Post; all of them involved physical labour. He denied there was much heavy lifting involved in any of the jobs. He also had a serious motorcycle accident in 1979 or 1980. He sustained a number of injuries in that accident. He said he did not have any shoulder injuries before he started work at Australia Post. He was given a clean bill of health by the Commonwealth Medical Officer at that time.
12. The applicant was a postman when he started work at Australia Post. He injured his right shoulder in a bike accident while delivering mail on 8 May 1986. He received compensation but says the injury resolved itself. He suffered tendonitis later that year while doing night sorting and he had another motorcycle accident in 1991. He took long service leave in 1993 and went on a motorcycle tour around Australia. He says it was not a strain and there were no mishaps on the trip.
13. The applicant had another injury at work while sorting mail on a large square frame in December 1993. It was the Christmas rush period. He said he had to cart heavy mail-bags and then sort the mail in to the frame which was not ergonomically designed. He hurt his shoulder. He was diagnosed as having right rotator cuff tendonitis 1994. He underwent an arthroscopic procedure at the hands of Dr Nutting. Dr Nutting discovered a partial tear in the supraspinatus tendon. It was repaired.
14. Mr O’Sullivan gradually returned to work. Dr Eaton cleared him to do sorting work in November 1994. He asked for and received an ergonomic frame. That improved things, but he said he still experienced pain.
15. The applicant’s general practitioner said Mr O’Sullivan’s work was exacerbating his shoulder injury in early 1995. He saw Dr Eaton again who said there was degenerative change – although he doubted whether it was work related. Dr Nutting sent the applicant for intensive shoulder rehabilitation at Belmont hospital in March but did not believe the partial tendon tear was caused by work.
16. Upon his return to work in April 1995, the applicant was redeployed to the transport section on a trial basis. He remained there until he resigned from Australia Post in 2001. He said the work was strenuous and his shoulder was constantly sore.
17. He claimed to have sustained a further injury to his shoulder on 7 February 2000 while unloading a heavy mail-bag from a truck at the Sandgate post office. The incident report was filed on 11 February 2000. He said the trucks were often difficult to unload because their floors were disintegrating.
18. I note the applicant had asked Australia Post to “re-open” his case (Australia Post had determined that it would cease payments to the applicant on 9 May 1995) in a letter dated 3 February 2000, four days before the incident at Sandgate post office. He detailed the difficulties he faced on a daily basis in dealing with his shoulder problem. That letter referred to an appointment with Dr Gilpin scheduled for 29 February 2000.
19. The applicant has since left Australia Post. He currently works as a law clerk in his wife’s practice. He attends to settlements and other tasks. His work is not physical in nature. He continues to suffer pain and restrictions to his movement, he says.
The Medical Evidence
20. Dr Nutting was called by the respondent. He said the applicant had a bursal surface tear of the superspinatus tendon leading to an impingement. He said it was a common condition that was usually attributable to age and wear and tear. He said it was possible the applicant’s work was the cause of his condition but he thought it more likely the applicant’s ongoing problems (as opposed to the temporary aggravation caused by the accident in 1993) were caused by an underlying degenerative condition.
21. The applicant referred to the evidence of Dr Curtis in particular. He is an orthopaedic surgeon. He agreed the applicant suffered from an impingement of the supersprinatus tendon. There was evidence of a full thickness tear in the tendon. He also noted Dr Nutting’s observation that the applicant had a hooked acromion, which he said would contribute to the development of an impingement.
22. Dr Curtis said there is a relationship between the applicant’s work and his shoulder condition. He noted in the course of his oral evidence that he would not expect to see a condition of this type in someone below the age of 40. While the rotator cuff tendon might fray in an older person as part of a normal process of degenerative change, it was unusual in a person of Mr O’Sullivan’s age – and therefore more likely to be attributed to the applicant’s work experiences. In this respect, he disagreed with Dr Nutting.
23. Dr Castrisos said the applicant’s ongoing problems with his shoulder represented “a recurrence of the naturally progressive degenerative rotator cuff disease”. The ongoing problems were not work-related, he said. Dr Eaton, who worked for Australia Post under a contract at the time, also examined the applicant and concluded his problems were not work-related.
24. That leaves the evidence of Dr Boyes. He examined the applicant and concluded the condition was, for the most part, age related – although he conceded it was unusual to see evidence of degeneration in someone of the applicant’s age. He said that was probably accounted for by the applicant’s acromial hook, which made tears more likely, and recovery more difficult.
25. He concluded in his report of 9 August 2001:
“…Mr O’Sullivan does suffer a degree of permanent impairment of the right shoulder. His impairment reflects primarily the affects of age-related ischaemia and attrition of the rotator cuff of the right shoulder. There has been a superimposed minor permanent aggravation associated with work activities.”
26. He went on to assess a 5% permanent impairment under Table 9.1 of the Comcare Guide to the Assessment of Permanent Impairment. This can be contrasted with Dr Curtis’s finding that the applicant suffered a 10% whole person impairment.
Conclusions from the Medical Evidence
27. The evidence of Drs Curtis and Boys suggests the applicant’s work materially contributed to the aggravation of his right shoulder condition. The other experts called by the respondent take a different view, but I note they both have ties to Australia Post. Dr Boys was called by the respondent but struck me as an entirely independent witness.
28. The question of the degree of permanent impairment is more difficult. It comes down to a contest between the evidence of Drs Boys and Curtis. I note s 24(7) requires a minimum of 10% impairment before any compensation is payable.
29. I prefer the evidence of Dr Boys. His examination is more recent, and the applicant conceded there may have been some improvement in his condition in the interim. In the circumstances, I cannot be satisfied the applicant is eligible for compensation for permanent impairment under ss 24 and 27.
Conclusion
30. The respondent’s decision to deny liability under s 14 of the Act is set aside. The decision to deny liability to compensate for permanent impairment is affirmed.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B J McCabe, Senior Member
Signed: Sarah Oliver
AssociateDates of Hearing 5 and 6 August 2003
Date of Decision 24 December 2003
Counsel for the Applicant Ms Cochrane
Solicitor for the Applicant T K Delaney, Solicitors
Counsel for the Respondent Mr Bickford
Solicitor for the Respondent Clarke & Kann, Lawyers
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