Sellick and Australian Postal Corporation - [2007] AATA 71

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 71
ADMINISTRATIVE APPEALS TRIBUNAL      )
)          No A2004/376
  )                  A2004/378

GENERAL ADMINISTRATIVE DIVISION )

Re ALLAN SELLICK

Applicant

And

AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal J.W. Constance, Senior Member

Dr M.D. Miller AO, Member
Date 1 March 2007
Place Canberra

Decision
1)    The decision of Australia Post in matter A2004/376 made 27 October 2004 is set aside and in substitution it is decided that from 27 October 2004 up to and including the date of this decision, Mr Sellick has suffered and is suffering the effects of an aggravation of a degenerative spine condition and a sprain of the interspinous ligament which arose out of his employment with Australia Post on 25 October 2002.

2)    The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made Australia Post shall pay Mr Sellick’s reasonable costs in application A2004/376.

3)    The decision of Australia Post in matter A2004/378 made 26 October 2004 is set aside and in substitution it is decided that Australia Post is liable to pay compensation to Mr Sellick in respect of an injury being bilateral inguinal hernias suffered by Mr Sellick on 31 May 2004.

4)    The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made Australia Post shall pay Mr Sellick’s reasonable costs in application A2004/378

..............................................
J.W. Constance, Senior Member

Each set of shelves contains 4 or 5 shelves. Each shelf is divided into vertical slots, each slot representing one or two delivery addresses.[2] The officer stands or sits facing the shelves and sorts the mail from tubs.
[2] Exhibit A47.
12.       Ms Prykiel, Postal Delivery Co-ordinator at the Queanbeyan Delivery Centre, gave evidence as to the duties carried out by Mr Sellick. On the basis of her evidence we make the findings in the following two paragraphs.
13.      In 2002, as part of his mail sorting duties, Mr Sellick was required to lift bins holding up to (but often less than) 15 kg of mail. The bins were lifted from ankle height to waist height. He was required to lift two or three bins each day.    Also in 2002 he was required to lift depot bags which would hold up to 16 kg of mail. These bags have now been reduced in size and hold between 10 and 12 kg of mail.   On the busiest days (Mondays) 3 or 4 depot bags are handled each day. On other days there may only be one. After Mr Sellick complained of shoulder and back problems in October 2002 his VSORT frame was lowered. Later he was given a two-module frame in place of a three-module frame.[3]
[3] Exhibit R8, Statement of Ms Priekel, 16 January 2006.
14.      On the basis of the oral evidence given by Ms Prykiel we are satisfied that on occasion Mr Sellick has lifted bins of mail weighing up to 25 kg. The evidence…

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: [2007] AATA 71
Decision Date: 1 March 2007

CaseChat Overview and Summary

Sellick, a postal worker, brought an action against Australia Post in the Federal Court of Australia. The dispute centered around whether Sellick continued to suffer from certain conditions related to his employment and whether his work activities contributed to these conditions. The court was also required to determine if the claim was properly made and if the hernias constituted a disease for the purposes of compensation.

The primary legal issues involved determining if Sellick's degenerative spine condition and interspinous ligament sprain were work-related injuries, if his hernias were a result of his employment, and if the hernias qualified as a disease under the relevant legislation. The court had to examine the evidence and the nature of Sellick's work, including the physical demands of sorting mail, to ascertain if these activities contributed to his injuries.

The court found that Sellick continued to suffer from an aggravation of a degenerative spine condition and a sprain of the interspinous ligament, which arose from his employment with Australia Post. The court also determined that the bilateral inguinal hernias were a result of Sellick's employment. The hernias were deemed to constitute a disease under the Safety, Rehabilitation and Compensation Act 1988. The court set aside the earlier decisions of Australia Post and substituted its own findings, ordering compensation for Sellick. The court also provided for costs to be determined within 14 days of the judgment.

The final orders of the court were that the earlier decisions regarding Sellick's claims were set aside, and new decisions were made in his favor. Australia Post was ordered to compensate Sellick for the aggravation of his spine condition and the interspinous ligament sprain, as well as for the bilateral inguinal hernias. The court granted the parties liberty to apply for costs within 14 days, with a provision for Australia Post to pay Sellick's reasonable costs if no application was made.

Orders

Orders of the court

1) The decision of Australia Post in matter A2004/376 made 27 October 2004 is set aside and in substitution it is decided that from 27 October 2004 up to and including the date of this decision, Mr Sellick has suffered and is suffering the effects of an aggravation of a degenerative spine condition and a sprain of the interspinous ligament which arose out of his employment with Australia Post on 25 October 2002.

2) The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made Australia Post shall pay Mr Sellick’s reasonable costs in application A2004/376.

3) The decision of Australia Post in matter A2004/378 made 26 October 2004 is set aside and in substitution it is decided that Australia Post is liable to pay compensation to Mr Sellick in respect of an injury being bilateral inguinal hernias suffered by Mr Sellick on 31 May 2004.

4) The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made Australia Post shall pay Mr Sellick’s reasonable costs in application A2004/378

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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