Saade and Australian Postal Corporation - [2005] AATA 49

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 49
ADMINISTRATIVE APPEALS TRIBUNAL
GENERAL ADMINISTRATIVE DIVISION N2004/190
Re: VICTORIA SAADE
Applicant

And: AUSTRALIAN POSTAL CORPORATION
Respondent

DECISION
Tribunal:       P.J. Lindsay, Senior Member, Dr I. Alexander, Member
Date:             18 January 2005
Place:            Sydney
Decision:The tribunal affirms the decision under review.

. . . . . . . . . . . . . . . . . . . . . . . .
P. J. Lindsay, Senior Member

© Commonwealth of Australia (2005)

P.J. Lindsay, Senior Member
Dr I. Alexander, Member

1.      This is an application for review of a decision made by Australia Post on 15 December 2003 denying liability for a claim for compensation made by Victoria Saade on 22 October 2003.
background
2.      In April 1997, the applicant lodged a claim for compensation with Australia Post under the Safety, Rehabilitation and Compensation Act 1988 (the Act), complaining of soreness in her right upper limb and right side of her neck. By determination dated 16 May 1997 Australia Post accepted liability for “occupational overuse syndrome right upper limb”. In the following months, she received physiotherapy and Dr L Reiter, rheumatologist, gave her several cortisone injections in the right shoulder and elbow. Gradually her work program was upgraded. She resumed her normal duties from 2 September 1997 and her rehabilitation case was closed in October 1997.
3. Ms Saade lodged another claim for compensation on 23 October 2003 in respect of occupational overuse syndrome affecting her hand, arm, shoulder and neck. In the claim, she described the events that led to her injury as being the overuse of her arm in performing her normal duties at the counter. She stated she first noticed the injury on 30 April 1997 (T34 in the documents lodged with the tribunal under s. 37 Administrative Appeals Tribunal Act 1975) (the AAT Act).
4.      Dr J Tong, her GP, wrote to Australia Post on 18 November 2003 referring to consultations with Ms Saade in October 2003 when she complained of a sore right shoulder, neck, forearm, headaches, back aches and generalised tingling in her right hand, swollen fingers and dropping of objects. Dr Tong added that Ms Saade was starting to develop symptoms on her left side. Dr Tong recommended restrictions on her duties, including a maximum of 5 kilograms for occasional lifting, no repetitive bending or rotation of the back, restricted keyboard work, no repetitive work, no gripping, no forceful pushing or pulling and no operation of powered equipment. Dr Tong’s medical certificate dated 29 November 2003 diagnosed occupation overuse syndrome and anxiety-depression.
5.      By determination dated 30 October 2003 Australia Post denied liability for compensation (T38). The delegate’s reasons noted that the applicant’s hand movements were “varied and non-repetitive” while performing her duties serving at the counter and that there was “little requirement for forceful use of the arm, because automatic staplers are used”. The delegate went on to state that “there is no medical explanation for the widespread…

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 49
Decision Date: 18 January 2005

CaseChat Overview and Summary

The case of Saade and Australian Postal Corporation involved a claim for workers' compensation related to occupational overuse syndrome (OOS). The Australian Postal Corporation had previously accepted liability for the condition in 1997, but the claimant, Saade, lodged a fresh claim for compensation in 2003. The issue before the court was whether the 2003 injury was the same as the 1997 injury and whether the injury was work-related. The role of depression in the onset of symptoms was also a significant consideration in the case.

The court was required to determine whether the injuries were the same and if the injury was work-related. The court found that the 1997 injury and the 2003 injury were not the same. Furthermore, the court found that the claimant's depression played a significant role in the onset of the symptoms. Therefore, the injury was not work-related, and the claim was dismissed. The decision of the Administrative Appeals Tribunal affirming the dismissal of the claim was upheld.

The court's reasoning was based on the fact that the claimant had previously received compensation for the same injury. The court held that the claimant had not provided sufficient evidence to prove that the 2003 injury was different from the 1997 injury. The court also found that the claimant's depression played a significant role in the onset of the symptoms, which meant that the injury was not work-related. The court relied on previous cases such as Power v Comcare and Australian Postal Corporation v Oudyn to support its decision.

The final orders of the court were that the decision of the Administrative Appeals Tribunal affirming the dismissal of the claim was upheld. The claimant was not entitled to compensation for the 2003 injury, and the decision was final and binding. The court's decision highlights the importance of providing sufficient evidence to prove a fresh injury claim and the role of mental health in occupational injuries.

Orders