Rezk and Australian Postal Corporation - [2005] AATA 67

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 67
ADMINISTRATIVE APPEALS TRIBUNAL
GENERAL ADMINISTRATIVE DIVISION N2002/1720; N2003/164; N2003/257; N2004/350
Re: Gihan Rezk
Applicant

And:Australian Postal Corporation
Respondent

DECISION
Tribunal:      P.J. Lindsay, Senior Member, Dr P.D. Lynch, Member
Date:             18 January 2005
Place:           Sydney
Decision:     The tribunal:
- sets aside the reconsideration made on 12 September 2002   affirming a determination to cease liability from 9 August 2002 in respect of “soft tissue injury cervical spine” (N2002/1720)
- sets aside a reconsideration made on 24 July 2002 affirming a                   determination denying liability for certain periods of incapacity for the   periods 29 April 2002 to 1 May 2002 and 7 to 8 May 2002 and remits                 the matter to the respondent to determine the correct amounts of   compensation payable (N2003/164);
- affirms a reconsideration made on 6 February 2003 affirming three            determinations denying liability for certain periods of incapacity   between 15 May and 17 September 2002 (N2003/257);
- affirms a reconsideration made on 9 March 2004 affirming a    determination that Australia Post was not liable to compensate Ms   Rezk for permanent impairment of her “neck, shoulder and upper   limbs”. (N2004/350)
The respondent is liable to pay the applicant's costs of the proceedings in accordance with the General Practice Direction of the tribunal.
. . . . . . . . . . . . . . . . . . . . . . . .
P. J. Lindsay, Senior Member

© Commonwealth of Australia (2005)

Administrative
Appeals
Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL ) N2002/1720
)
GENERAL ADMINISTRATIVE DIVISION )

Re: GIHAN REZK

Applicant

And: AUSTRALIAN POSTAL CORPORATION

Respondent

ORDER TO AMEND WRITTEN DECISION [2005] AATA 67
TribunalJustice Downes, President
Date10 February 2005
PlaceSydney
WHEREAS:

1.   The Tribunal released a written decision in this matter, which was dated 18 January 2005.
2.   It has come to the Tribunal’s attention that there was an error in the decision.
3. The Tribunal wishes to amend the written decision so as to rectify this error and wishing to do so with the least cost and inconvenience to the parties, applies the provision of section 43AA of the Administrative Appeals Tribunal Act1975.
THE TRIBUNAL THEREFORE ORDERS that the first paragraph of the decision read as follows:
- sets aside the reconsideration made on 12 September 2002 affirming a determination to cease liability from 9 August 2002 in respect of “soft tissue injury cervical spine”. In substitution thereof, the Tribunal’s decision is that the respondent continues to pay compensation to Ms Rezk in accordance with s. 14 of the Act in respect of soft tissue injury to cervical and lumbar spine, disc budge C3/C4 suffered on 27 March 2002.
...………………………
[sgd] Garry Downes
  President

P.J. Lindsay, Senior Member, Dr P.D. Lynch, Member

1. This is an application for review of four reconsideration decisions made by Australia Post relating to Gihan Rezk (the applicant):
· N2002/1720: a reconsideration made on 12 September 2002 affirming a determination…

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: [2005] AATA 67
Decision Date: 18 January 2005

CaseChat Overview and Summary

The case of Rezk against the Australian Postal Corporation was brought before the Administrative Appeals Tribunal. The applicant, Mr. Rezk, sustained injuries to his neck and lower back in a work-related motor vehicle accident. Liability for the injuries was accepted by the respondent. However, the respondent later claimed to cease liability, which was challenged by Mr. Rezk. The central legal issues the Tribunal had to decide included whether Mr. Rezk's injuries resulted in periods of incapacity for work and, if so, to what extent he was entitled to compensation. Additionally, the Tribunal needed to determine if Mr. Rezk's claim for permanent impairment in respect of his neck and shoulder was valid.

The Tribunal examined the evidence and relevant statutory provisions, including sections 4, 14, 19, 24, 27, 60, 62, and 64 of the Safety, Rehabilitation and Compensation Act 1988. The Tribunal found that Mr. Rezk was entitled to compensation for some periods of incapacity for work, as his injuries did indeed result in closed periods of incapacity. The Tribunal set aside the respondent's decision to cease liability for these periods. However, regarding Mr. Rezk's claim for permanent impairment in respect of his neck and shoulder, the Tribunal affirmed the original decision that this claim was not valid. The Tribunal's decision was influenced by the authorities in Rosillo v Telstra Corporation Limited, Australian Postal Corporation v Oudyn, and Re Liu and Comcare.

The Tribunal's final orders were that the respondent, Australian Postal Corporation, must compensate Mr. Rezk for the periods of incapacity for work resulting from his injuries. The decision regarding the claim for permanent impairment was upheld, and Mr. Rezk was not entitled to compensation for this aspect of his injuries. This ruling underscores the importance of a thorough assessment of incapacity periods and the need for accurate claims of permanent impairment, in accordance with the applicable statutory provisions.

Orders