Re Hocking and Australian Postal Corporation - [2002] AATA 963

DECISION AND REASONS FOR DECISION [2002] AATA 963

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2001/123

GENERAL ADMINISTRATIVE DIVISION       )
           Re      TARYN HOCKING
  Applicant
           And    AUSTRALIAN POSTAL CORPORATION
  Respondent

DECISION

Tribunal Mr G A Mowbray

Date22 October 2002
PlaceCanberra

Decision The Tribunal sets aside the decision under review of 8 March 2001 and remits the matter to the Respondent for reconsideration with a direction to give effect to the findings of the Tribunal that the Applicant's annular tears are responsible for her back pain the operation of the V-Sort frames was a cause of the Applicant's annular tears therefore the Applicant suffered an injury for the purposes of the Safety, Rehabilitation and Compensation Act 1988 at 4 January 2001 the Applicant continued to suffer from this injury as she did in December 2001 as a consequence the Applicant has been partially incapacitated for work the Applicant is entitled to medical expenses and incapacity payments under sections 16 and 19 of the Act. The Tribunal directs the Respondent to determine the quantum of the compensation payments to which the Applicant is entitled under sections 16 and 19 of the Act. The Tribunal orders the Respondent to pay the Applicant's costs as agreed or taxed.

..............................................
Member
CATCHWORDS
COMPENSATION – nature and cause of injury – what constitutes continuing injury – cessation of injury

Safety, Rehabilitation and Compensation Act 1988, ss 4, 14, 16, 19

Re Carson and Telstra Corporation (2001) 33 AAR 351
Re Quinn and Australian Postal Corporation (1992) 15 AAR 519
Commonwealth v Borg (1991) 20 AAR 299n
Comcare v Nichols [1999] FCA 209
Australian Postal Corporation v Bessey (2001) 32 AAR 508
Salisbury v Australian Iron & Steel Ltd (1943) 44 SR (NSW) 157; 61 WN (NSW) 87
Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19
Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533
Casarotto v Australian Postal Commission (1989) 86 ALR 399
Re Bessey and Australian Postal Corporation (2000) 60 ALD 529
Willcocks v Comcare (2001) 66 ALD 119

REASONS FOR DECISION

22 October 2002 Mr G A Mowbray

This is an application by Ms Taryn Hocking for review of a decision made by the Australian Postal Corporation (referred to in these reasons as Australia Post) on 8 March 2001 that its liability for Ms Hocking's lower back pain had ceased with effect from 4 January 2001.
At the hearing of this matter counsel for Ms Hocking was Ms Jane Godtschalk and counsel for Australia Post was Mr Geoffrey Johnson. The main hearing was held on 13 and 14 December 2001 during which a new summons for documents was issued to Australia Post in place of one it had failed to answer. A further hearing was conducted with counsel by telephone on 9 April 2002 confined principally to addressing issues arising from the new summons material.
Background
Ms Hocking was born on 2 March 1964. She first worked for Australia Post from 1987 to 1991. She then left to…

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: [2002] AATA 963
Decision Date: 22 October 2002

CaseChat Overview and Summary

The case of Re Hocking and Australian Postal Corporation involved Ms Hocking, an employee of Australia Post, who sought compensation for a lower back injury sustained during her employment. The dispute revolved around the cessation of Ms Hocking's entitlement to compensation and the nature of her injury. The matter was heard by the Administrative Appeals Tribunal (AAT), which was tasked with reviewing the decision of Australia Post to cease liability for Ms Hocking's injury.

The primary legal issue before the tribunal was whether Ms Hocking's injury had ceased to have effect, thereby justifying the cessation of her entitlement to compensation. This involved determining whether the injury had completely resolved or if it had merely been exacerbated by the use of the V-Sort frames, a sorting device used in her job. The tribunal also had to consider the relevant statutory provisions of the Safety, Rehabilitation and Compensation Act 1988, particularly sections 4, 14, 16, and 19, which define injury, and compensation for injuries, including incapacity for work and medical expenses.

The tribunal found that even if the use of the V-Sort frames merely increased Ms Hocking's symptoms, it was not satisfied that her injury had ceased to have effect as of December 2001. The tribunal concluded that Australia Post's decision to cease liability in January 2001, while Ms Hocking was still using the V-Sort frames, was premature. The tribunal set aside the decision under review and remitted the matter to Australia Post for reconsideration, directing them to take into account the tribunal's findings. The tribunal also ordered Australia Post to pay Ms Hocking's costs as agreed or taxed.

Orders

Orders of the court

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Background

Background to the litigation

At the hearing of this matter counsel for Ms Hocking was Ms Jane Godtschalk and counsel for Australia Post was Mr Geoffrey Johnson. The main hearing was held on 13 and 14 December 2001 during which a new summons for documents was issued to Australia Post in place of one it had failed to answer. A further hearing was conducted with counsel by telephone on 9 April 2002 confined principally to addressing issues arising from the new summons material.Background Ms Hocking was born on 2 March 1964. She first worked for Australia Post from 1987 to 1991. She then left to travel and on her return pursued other work including as a builder's labourer and self-employment as a landscape gardener. She rejoined Australia Post in January 1998. As part of her new application for employment Ms Hocking was medically examined. She disclosed a history of back pain following exertion but was passed as medically capable of performing all duties of her position. Australia Post's concerns were not totally allayed and Ms Hocking was asked in March or April 1998 to provide a report from a medical practitioner confirming her fitness for duty. She duly did so. On 6 July 2000 Ms Hocking made a claim for rehabilitation and compensation in relation to lower back pain. In it she stated that she had first noticed the injury in October 1999, although she had not obtained medical treatment until the day before making the claim. She attributed the injury to turning and reaching while sorting and delivering mail. Australia Post initially denied liability for lower back pain but accepted liability on 18 September 2000 after Ms Hocking asked for a reconsideration. On 30 November 2000 Australia Post notified Ms Hocking it intended to cease liability. On 2 January 2001 it determined it would cease to be liable from 4 January 2001 to pay compensation under any of the "benefits" provisions of the Safety, Rehabilitation and Compensation Act 1988 (the Act) including sections 16, 19, 24 and 27. Ms Hocking sought a reconsideration of this determination, but it was affirmed in the reviewable decision of 8 March 2001. The Tribunal received an application for review on 15 March 2001. The relevant provisions of the Act are as follows"4 Interpretation(1) In this Act, unless the contrary intention appears:…"injury" means: …(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;…"medical treatment" means:(a) medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or (b) therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or …(d) therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be; or …(h) … the provision of medicines, … whether in a hospital or otherwise; …(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being: (a) an incapacity to engage in any work; or (b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.…""14 Compensation for injuries(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.…""16 Compensation in respect of medical expenses etc.(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.…""19 Compensation for injuries resulting in incapacity(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.…"

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Even if I had found that use of the V-Sort did no more than increase Ms Hocking's symptoms I would not be satisfied on the balance of probabilities that the injury had ceased to have effect as at December 2001. I would certainly not be persuaded the effects had ceased at the time that Australia Post ceased liability in January 2001, that is while Ms Hocking was still using the V-Sort frames.Conclusions In summary I conclude The decision of the Tribunal is to set aside the decision under review of 8 March 2001 and to remit the matter to the Respondent for reconsideration with a direction to give effect to the findings of the Tribunal set out in these reasons for decision. The Tribunal orders the Respondent to pay the Applicant's costs as agreed or taxed.

Ratio Decidendi

Legal Principle Established

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