Rush and Australian Postal Corporation

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Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 185

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q 2005/427

GENERAL ADMINISTRATIVE DIVISION )
Re  Kristine Louise Rush

Applicant

And

 Australian Postal Corporation

Respondent

DECISION

Tribunal Mr SC Fisher, Member

Date5 March 2008

PlaceBrisbane

Decision

The Tribunal affirms the decision under review.

...................[Sgd]...........................

DISTRICT REGISTRAR

General considerations

15.         First, in relation to claims to establish liability for an injury or incapacity flowing from that injury, the Tribunal must be satisfied on the balance of probabilities of the existence of the injury or the incapacity and that they were work related: see Robertson and Comcare[2] .  A succinct statement of this is found in Comcare v Nichols[3] where Justice Heerey said (at [23]):

“However Mrs Nichols also contended that (i) she had a cervical spondylosis (ii) which was work-related and (iii) which contributed to her present incapacity. If all three elements were established she would have an entitlement to compensation. The Tribunal had to be satisfied of the existence of each element.”

Tribunal’s reasons

A.       Diagnosis

16.     The Tribunal had an extensive body of medical evidence before it in the section 37 documents.  Not all of the medical practitioners who have provided medical care and medico-legal reports to the applicant were called to give evidence in this case.

17.     At the hearing, medical records were tendered on behalf of the applicant from Dr Brett Halliday, orthopaedic surgeon (medical report dated 14 July 2005).  The applicant also called evidence from Dr Anthony Schwarzer, consultant rheumatologist, whose medical reports appeared in the section 37 documents.  Both of these medical practitioners gave evidence.

18.     For the respondent at the hearing, Associate Professor Bruce McPhee, orthopaedic surgeon (medical report dated 16 September 2005) and Dr John Cameron, neurologist (medical report dated 3 April 2006) both gave evidence.

19.     Dr Brett Halliday diagnosed ’left L5-S1 zygapophysial dysfunction‘.  Dr Halliday described the condition as stable and stationary and allocated a 10% impairment under Table 9.5 and made a rating of 0% impairment under Table 9.6.

20.     Dr Anthony Schwarzer provided many medical reports concerning his treatment of the applicant since 1999, with reports spanning 8 February 1999 - 4 August 2000, and then variously from that date up to and including 8 November 2006.  Dr Schwarzer diagnosed the applicant as suffering from ’left L5-S1 zygapophysial joint pain’.  Dr Schwarzer rated the applicant as suffering a 10% impairment under Table 9.5.

21.     Associate Professor Bruce McPhee said that radiological investigations failed to demonstrate any pre-existing pathology or injury in the lower back or region of the sacred clean joints.  Associate Professor McPhee went on to opine that the symptoms of the applicant were not characteristic of any particular disorder and that the complaint of low back pain and left leg pain was without objective evidence of the impairment of lumbar spine, pelvis or lower extremity.  On the basis of his clinical examination, Dr McPhee said that the…

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Details
Case
[2008] AATA 185
Decision Date

CaseChat Overview and Summary

In the case of Rush v Australian Postal Corporation, the applicant sought compensation for an injury sustained during employment. The dispute centred on the assessment of permanent impairment and the quantum of damages awarded. The matter was heard in the Federal Circuit Court of Australia. The applicant contended that the tribunal's decision to award zero percent permanent impairment rating was erroneous and that the compensation awarded was insufficient. The court was required to determine whether the tribunal's decision was legally sound and if the compensation was adequate under the Safety, Rehabilitation and Compensation Act 1988.

The court reviewed the evidence and submissions to ascertain whether the tribunal had correctly applied the relevant statutory provisions in assessing the degree of permanent impairment. The applicant argued that the tribunal had failed to properly consider the impact of the injury on their ability to work and overall quality of life. The court also examined whether the compensation awarded was commensurate with the nature and extent of the injury. The legal principles from precedent cases such as Comcare v Mooi and Treloar v Australian Telecommunications Commission were considered to assess the tribunal's decision.

Upon reviewing the evidence and applying the statutory framework, the court found that the tribunal had correctly applied the relevant provisions in determining the degree of permanent impairment. The tribunal had considered all relevant factors, including medical evidence and the applicant's capacity to work. The court concluded that the tribunal's decision to award a zero percent rating was supported by the evidence and did not constitute an error of law. Furthermore, the court found that the compensation awarded was reasonable and appropriate given the circumstances.

The court affirmed the tribunal's decision, holding that the tribunal had not erred in its assessment of permanent impairment or in determining the amount of compensation. The applicant's appeal was dismissed, and the decision under review was upheld.

Orders

Orders of the court

The Tribunal affirms the decision under review.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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