Shaw and Australia Postal Corporation - [2005] AATA 747

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 747
ADMINISTRATIVE APPEALS TRIBUNAL )
)No W2001/375 & W2004/183

GENERAL ADMINISTRATIVE DIVISION )

Re PATRICE SHAW

Applicant

And

AUSTRALIA POSTAL CORPORATION

Respondent

DECISION

Tribunal Mr M J Allen, Member
Date5 August 2005
PlacePerth

Decision
The decision of the Tribunal is that:

(a) The reviewable decisions made on 23 March 2001 (the subject of proceedings W2001/375) and 18 May 2004 (the subject of proceedings W2004/183) are set aside. The matters are remitted to the respondent for reconsideration and determination of the applicant’s entitlements to compensation under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act, 1988 (“the Act”) with the following directions:

(i) The applicant is entitled to compensation under sections 16 and 19 of the Act in respect of a physical injury to the right neck and shoulder sustained in the course of her employment on 23 February 2000 and for the mental injury of depression as a consequence thereof;

(ii) For all periods of incapacity for work between 23 February 2000 and the present date the applicant is entitled to compensation under section 19 of the Act on the basis of normal weekly earnings for a night mail sorter working 42 hours per week;

(b) Pursuant to s 67(9) of the Act the costs of the two proceedings incurred by the applicant shall be paid by the respondent.

...............(sgd M J Allen)...............
Member

10.      The applicant subsequently commenced proceedings in this Tribunal for review of the decision of 15 August 2001 and, prior to the matter coming on for hearing, sought a determination from the respondent concerning the issue of the applicant’s hours of work should she be successful in having the earlier reviewable decision overturned. The result was the determination made by the respondent on 6 May 2004 (2004/T6) which was to the effect that, if the respondent became liable to make weekly payments to the applicant under the Act, then the hours used for the calculation of the applicant’s entitlement would be:
“(a)     from 16 December 2000 to 7 January 2001, at the rate which was paid immediately before 16 December 2000; and
(b)       from 8 January 2001, pursuant to s 8(10) of the Act at a rate based on the assumption that [the applicant] would have worked 20 hours per week if she had not been incapacitated by the injury.”

11.      At the applicant’s request the respondent reconsidered that determination and on 18 May 2004 affirmed it. The applicant subsequently applied to this Tribunal for the review of that decision (proceedings W2004/183) and the two matters proceeded to be heard together.
Statutory Framework and Issues
12.      Pursuant to s 14 of the Act the respondent will be liable to pay compensation to the applicant “…in accordance with this Act in respect of an injury suffered by [the applicant] if the injury results in … incapacity for work, or impairment.”
13.      Section 4(1) of the Act relevantly defines the following terms:
·an…

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 747
Decision Date: 5 August 2005

CaseChat Overview and Summary

The case of Shaw and Australia Postal Corporation involved the applicant, who sustained a work-related injury in February 2000, and Australia Postal Corporation, which initially accepted liability for the injury but later terminated the liability, claiming that the effects of the shoulder injury had ceased and that any continuing incapacity was due to an unspecified neck condition. The dispute reached the court, which had to determine whether the decisions of the respondent were reviewable, whether the original injury involved the applicant’s neck as well as the shoulder, the appropriate basis for calculating the applicant’s entitlement to weekly payments, and the impact of technological changes on the applicant’s working hours post-injury.

The court examined the legal framework provided by the Safety, Rehabilitation and Compensation Act 1988 and other relevant statutes and cases. It considered whether the respondent’s decisions to terminate liability were within its power and whether the original injury involved the applicant’s neck. The court also deliberated on the appropriate period for calculating the applicant's normal weekly earnings and the potential impact of workplace technological changes on the applicant’s working hours.

After careful consideration, the court found that the respondent’s decisions were reviewable and that the original injury did involve the applicant’s neck. The court determined that the applicant’s entitlement to weekly payments should be calculated based on the normal weekly earnings of a night mail sorter working 42 hours per week. The court also concluded that the technological changes in the workplace did not significantly alter the applicant's working hours post-injury.

The court set aside the reviewable decisions made by the respondent and remitted the matter for reconsideration and determination of the applicant’s entitlements to compensation under the relevant sections of the Safety, Rehabilitation and Compensation Act 1988. The court directed that the applicant is entitled to compensation for the physical injury to the right neck and shoulder, as well as for the mental injury of depression resulting from the injury. Additionally, the court ordered that the respondent would cover the costs of the proceedings incurred by the applicant.

Orders

Orders of the court

The decision of the Tribunal is that:

(a) The reviewable decisions made on 23 March 2001 (the subject of proceedings W2001/375) and 18 May 2004 (the subject of proceedings W2004/183) are set aside. The matters are remitted to the respondent for reconsideration and determination of the applicant’s entitlements to compensation under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act, 1988 (“the Act”) with the following directions:

(i) The applicant is entitled to compensation under sections 16 and 19 of the Act in respect of a physical injury to the right neck and shoulder sustained in the course of her employment on 23 February 2000 and for the mental injury of depression as a consequence thereof;

(ii) For all periods of incapacity for work between 23 February 2000 and the present date the applicant is entitled to compensation under section 19 of the Act on the basis of normal weekly earnings for a night mail sorter working 42 hours per week;

(b) Pursuant to s 67(9) of the Act the costs of the two proceedings incurred by the applicant shall be paid by the respondent.

Background

Background to the litigation

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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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