Smith and Australian Postal Corporation

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 291

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/1079

GENERAL ADMINISTRATIVE DIVISION		)
Re		SUSAN SMITH

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Senior Member, Mrs Josephine Kelly
Dr MEC Thorpe, Member

Date11 April 2008

PlaceSydney

Decision The decision under review is affirmed.  

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

Presiding Member
  Senior Member, Mrs Josephine Kelly

12.     In his submission, Ms Smith's asymptomatic condition was made symptomatic by her work duties. Further, Mr Richards said that it is an irrelevant consideration that the condition would have become symptomatic in any event.   He referred to the extract from Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19 at 26 - 27 (per Barwick CJ), which was cited in Martin at 431 and 432:

An acceleration by work in an employment of a pre-existing disease not itself arising out of or received in the course of the employment becomes in itself an injury within s 9 of the [Workers' Compensation Act, 1926]. ... If incapacity in fact results from the acceleration, is this not enough to entitle the worker to an award in the same way or to the same extent as would be the case with any other injury? I have no doubt that it would. If the incapacity it causes ceases, the award will be for that reason terminable. But that incapacity does not cease because it is demonstrable that, without the injury, the worker would have arrived from another cause at the same state of incapacity. It seems to me nothing to the point that that other cause would have been the pre-existing disease in its own unaided progression. Where the incapacity which results from the acceleration is permanent, in my opinion, the award is not terminable because that incapacity would in any case have been the end result of the pre-existing disease.

13.     Mr Richards criticised Dr McGill and Dr Maxwell, who gave evidence at the request of Australia Post.  He said that they appeared "in every Australia Post" matter.  He criticised Dr Maxwell's opinion that physical activity or heavy work does not contribute to back conditions.

14.     Mr Richards relied on the following medical evidence, as he summarised it.  Dr Isaacs said that quite a lot of heavy manual work at night materially contributed to her lower back condition.  Dr Browne said that there was an exacerbation of the underlying disease at the time of injury and that it was not unusual not to have symptoms at time of exertion but they normally occur within 24 hours.  Professor Ghabrial said it was most likely that the symptoms and pain she suffered the morning after she had been working were related to the work the night before and over a period of 23 years.  Without that contribution she may have remained asymptomatic for life.

CONSIDERATION

15.     We agree with Mr Richards that Ms Smith is a not a good historian, although we accept she gave her evidence…