Sellick and Australian Postal Corporation

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 158

ADMINISTRATIVE APPEALS TRIBUNAL      )   

)            No    2008/1841

GENERAL ADMINISTRATIVE DIVISION		)
Re		ALLAN SELLICK

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Justice Tamberlin, Presidential Member
J. W. Constance, Senior Member
Dr M. D. Miller AO, Member

Date12 March 2009

PlaceCanberra

Decision

1)    The application is dismissed.

2)    The parties have liberty to apply within 14 days in relation to costs.

...................[sgd]......................

J. W. Constance, Senior Member

25.     At [57] of her judgement, her Honour said:

No accident report or claim was specifically made for the additional conditions as is         required by ss 53 and 54 of the SRC Act. If the additional conditions had not been      the subject of a notice of injury under s 53, a claim for compensation under s 54, a determination under s 60, a reviewable decision under s 62 and an application to the          Tribunal under s 64 of the SRC Act, the Tribunal had no power or jurisdiction to make     the decision that it did. Australia Post accepts that, as the Tribunal noted, the medical           certificates provided in support of the shoulder claim referred to complaints referable       to the upper back and not related to the shoulder. A medical assessment by Dr Chew   of July 2004 noted that Mr Sellick suffered from mid thoracic spine pain in October      2002 with no specific injury to account for the onset of his pain. Dr Chew’s diagnosis      of his then current condition was of soft tissue injury to his mid thoracic spine while    carrying out his postal delivery duties, superimposed on constitutional degenerative        changes in his thoracic spine. Australia Post accepts that the reviewable decision      addressed whether the problems were due to an underlying constitutional disorder     not caused, aggravated or accelerated by his employment. However, a mere         reference to the spine in some of the medical certificates is, Australia Post says,   insufficient compliance with the SRC Act.

26.     Her Honour went on to say at [71]:

Further, the Tribunal did not explain how Australia Post was liable under the        SRC Act. The notice and the claim referred to right shoulder pain which had       resolved. The first reviewable decision can, read beneficially to Mr Sellick, be said to   have included reference to the additional conditions in that it included a reference to     Dr Shroot’s and Dr Chew’s medical certificates of 2004 that diagnosed some upper         back pain and minor soft tissue injury to his thoracic spine. However, those       conditions were found to have resulted in pain in a different area to that the subject of       the claim, the mid-thoracic spine. The degenerative spinal condition was a pre-      existing condition. While injury or disease of the thoracic spine was referred to in the first reviewable decision, it was not the subject of that decision. It was referred to in           the context of pre-existing conditions which were not relevant to the claimed injury. In      finding liability under the SRC Act for the additional conditions which had…