Sambastian and Australian Postal Corporation (Compensation) - [2017] AATA 448

Sambastian and Australian Postal Corporation (Compensation) [2017] AATA 448 (7 April 2017)

Division

GENERAL DIVISION

File Numbers
2013/2474

2013/2475

2013/2476

2013/3133

2013/5810

Re

Armand Sambastian

APPLICANT

And

Australian Postal Corporation

RESPONDENT

DECISION

Tribunal

Deputy President K Bean

Date 7 April 2017

Place
Adelaide

1.In application 2013/2474, the decision under review is set aside and in substitution for that decision, it is decided that from 7 to 28 March 2013, Mr Sambastian was entitled to incapacity payments pursuant to s 19 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), calculated on the basis that he had no ability to earn in suitable employment.
2.In application 2013/2475, the decision under review is set aside and in substitution for that decision, it is decided that from 17 September 2012 to 7 March 2013, Mr Sambastian was entitled to incapacity payments pursuant to s 19 of the SRC Act, calculated on the basis that he had no ability to earn in suitable employment.
3.In applications 2013/2474 and 2013/2475, the Tribunal also:
(a) Reserves liberty to apply within 14 days in relation to the costs of the proceedings; and
(b) Orders that in the absence of any such application, the respondent is to pay the costs of the proceedings incurred by Mr Sambastian pursuant to s 67(8) of the SRC Act.
4.In applications 2013/2476, 2013/3133 and 2013/5810, the decisions under review are affirmed.

.......... [Sgd] ...........................
Deputy President K Bean
CATCHWORDS
COMPENSATION – Left shoulder and right elbow injuries – Whether applicant entitled to incapacity payments – Whether applicant received offer of suitable employment – Whether duties resulted in aggravation of pre‑existing, non-compensable condition – Whether duties which aggravated a pre-existing condition could be considered suitable – Whether rehabilitation program suitable – Whether reasonable excuse for failing to undertake rehabilitation program – Whether ongoing liability for right elbow condition.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 16, 19, 37
CASES
Sambastian and Australian Postal Corporation [2012] AATA 822
Australian Postal Corporation v Forgie (2003) 130 FCR 279
Australian Postal Corporation v Sinnaiah (2013) 213 FCR 449
Australian Postal Corporation v Pascoe (2004) 38 AAR 314
Australian Postal Corporation v Nunez (2014) 143 ALD 357
REASONS FOR DECISION
Deputy President K Bean
7 April 2017

In August 2001, the applicant, Mr Sambastian, was involved in a motor scooter accident whilst he was delivering mail in the course of his duties with Australia Post (the respondent). As a result, he sustained a left shoulder injury for which compensation liability was ultimately accepted by the respondent.[1] Some months later, in March 2002, Mr Sambastian sustained a right elbow injury when the front wheel of his motor scooter got caught between a footpath and a concrete kerb, causing him to lose control and veer into a brick wall. Liability was ultimately accepted for that injury in 2010.[2]
[1] Exhibit 1, T11/27.
[2] Exhibit 2, T16/27.
There are five applications for review before the Tribunal. Before proceeding to consider the relevant issues, I will first…

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.

Continue reading Sambastian and Australian Postal Corporation (Compensation)

Details

AGLC: Sambastian and Australian Postal Corporation (Compensation) [2017] AATA 448
Case: [2017] AATA 448
Decision Date: 7 April 2017

CaseChat Overview and Summary

This matter concerned five applications for review before Deputy K Bean P of the Administrative Appeals Tribunal. The applications related to Mr Sambastian's claims for compensation from the Australian Postal Corporation for accepted left shoulder and right elbow injuries. The core of the dispute involved the respondent's denial of liability for incapacity payments for specific periods and the subsequent suspension of Mr Sambastian's compensation entitlements due to his failure to undertake a determined rehabilitation program.

The Tribunal was required to determine whether Mr Sambastian was entitled to incapacity payments for the periods from 7 to 28 March 2013 and from 13 September 2012 to 7 March 2013, and whether the Australian Postal Corporation had denied liability for his accepted injuries. Further issues included whether Mr Sambastian had been offered suitable employment, whether duties that aggravated a pre-existing, non-compensable condition could be considered suitable, and whether he had a reasonable excuse for failing to undertake a rehabilitation program. The Tribunal also had to consider the ongoing liability for Mr Sambastian's right elbow condition.

The Deputy President found that Mr Sambastian was entitled to incapacity payments for the periods in question, based on his inability to earn in suitable employment. This decision overturned the respondent's previous determinations. The Tribunal affirmed the decisions under review in relation to the rehabilitation program and the suspension of compensation entitlements, finding that Mr Sambastian had not provided a reasonable excuse for failing to undertake the program. Consequently, Mr Sambastian was successful in applications 2013/2474 and 2013/2475, and the respondent was ordered to pay Mr Sambastian's costs in those proceedings.

Orders

Orders of the court

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Background

Background to the litigation

There are five applications for review before the Tribunal. Before proceeding to consider the relevant issues, I will first set out the background to those applications.BACKGROUNDApplication 2013/2474 On 28 March 2013, the respondent denied liability to pay compensation to Mr Sambastian pursuant to s 19 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) in respect of his accepted left shoulder and right elbow injuries for the period from 7 to 28 March 2013. Application 2013/2475 On 7 March 2013, the respondent denied liability to pay compensation pursuant to s 19 of the SRC Act in respect of Mr Sambastian’s accepted left shoulder and right elbow injuries for the period from 13 September 2012 to 7 March 2013.[3] [3] As Mr Sambastian attended work on 13 and 14 September 2012, he presumably received his ordinary pay for those days. Essentially, the respondent’s position was that Mr Sambastian was fit to undertake the modified duties which had been offered to him during those periods. It is sufficient to note at this point that the suitability of those duties (which were part of a rehabilitation program determined in April 2007) was considered by the Tribunal (constituted by Deputy President Jarvis and Professor Reilly AO, Member) in 2012.[4] That Tribunal relevantly found that “the rehabilitation program would not exceed Mr Sambastian’s ability to undertake the duties involved in it, having regard to the condition of his left shoulder and right elbow”.[5][4] Sambastian and Australian Postal Corporation [2012] AATA 822.[5] Sambastian [2012] AATA 822, at [34].Application 2013/2476 On 28 March 2013, the respondent determined, pursuant to s 37(1) of the SRC Act, that Mr Sambastian was to undertake a rehabilitation program, commencing on 2 April 2013. The program was determined in accordance with a medical certificate from Mr Sambastian’s then General Practitioner, Dr Bowler.[6][6] Exhibit 1, T42/104. The three determinations described above were affirmed by the respondent in separate reconsideration determinations dated 16 April 2013.[7] On 27 May 2013, Mr Sambastian sought review of those decisions by this Tribunal.[7] Exhibit 1, T43/105 and T55/134, T40/102 and T56/137, and T44/106 and T57/139 respectively.Application 2013/3133 On 16 April 2013, the respondent also suspended Mr Sambastian’s entitlement to compensation for his left shoulder and right elbow injuries pursuant to s 37(7) of the SRC Act, with effect from that date. The basis for that determination was that Mr Sambastian had failed to undertake the rehabilitation program dated 28 March 2013, as he did not attend work on 2 April 2013 when the program was due to commence. That determination was affirmed upon reconsideration on 27 June 2013. The reconsideration delegate was satisfied that Mr Sambastian had not provided a reasonable excuse for failing to undertake the program, and determined that his compensation entitlements would accordingly continue to be suspended.[8] On 1 July 2013, Mr Sambastian lodged an application for review of that decision by this Tribunal.[8] Exhibit 1, T54/131 and T65/160.Application 2013/5810

Evidence

Evidence Before The Court

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Decision

Reasons for decision

As Mr Sambastian has been successful in applications 2013/2474 and 2013/2475 and was legally represented earlier in the life of those applications, I am also minded to make a costs order in his favour in those applications, subject to any application from the respondent.DECISION In application 2013/2474, the decision under review is set aside and in substitution for that decision, it is decided that from 7 to 28 March 2013, Mr Sambastian was entitled to incapacity payments pursuant to s 19 of the SRC Act, calculated on the basis that he had no ability to earn in suitable employment. In application 2013/2475, the decision under review is set aside and in substitution for that decision, it is decided that from 17 September 2012 to 7 March 2013, Mr Sambastian was entitled to incapacity payments pursuant to s 19 of the SRC Act, calculated on the basis that he had no ability to earn in suitable employment. In applications 2013/2474 and 2013/2475, the Tribunal also:(a)Reserves liberty to apply within 14 days in relation to the costs of the proceedings; and(b)Orders that in the absence of any such application, the respondent is to pay the costs of the proceedings incurred by Mr Sambastian pursuant to s 67(8) of the SRC Act. In applications 2013/2476, 2013/3133 and 2013/5810, the decisions under review are affirmed.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL DIVISION
File Numbers	2013/2474 2013/2475 2013/2476 2013/3133 2013/5810
Re	Armand Sambastian
APPLICANT
And	Australian Postal Corporation
RESPONDENT

Tribunal	Deputy President K Bean
Date	7 April 2017
Place	Adelaide