Tez and Australian Postal Corporation - [2005] AATA 48

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 48
ADMINISTRATIVE APPEALS TRIBUNAL
GENERAL ADMINISTRATIVE DIVISION N02/1964; N03/1654; N03/1706
Re: GULAY TEZ
Applicant

And:AUSTRALIAN POSTAL CORPORATION
Respondent

DECISION
Tribunal:      P.J. Lindsay, Senior Member, Dr P.D. Lynch, Member
Date:             18 January 2005
Place:           Sydney
Decision:     The tribunal:
-sets aside the reviewable decision made on 10 October 2003 in relation to the purported cessation of liability under s.14 only, and in all other respects the decision is affirmed (N2003/1654).
-affirms the reviewable decision made on 16 October 2003. (N2003/1706).
-affirms the reviewable decision made on 27 November 2002. (N2002/1964).

Ms Tez has been partially successful with her applications and is entitled to some costs under s.67 of the Safety, Rehabilitation and Compensation Act 1988 in accordance with the general practice direction.
Note: It is considered reasonable that the respondent be liable for 20 per cent of the applicant’s total costs and disbursements.

. . . . . . . . . . . . . . . . . . . . . . . .
P. J. Lindsay, Senior Member
© Commonwealth of Australia (2005)

P.J. Lindsay, Senior Member, Dr P.D. Lynch, Member

1. Ms Gulay Tez (the applicant) has applied to the tribunal for review of the following decisions made by the Australian Postal Corporation (the respondent):
·A reviewable decision made on 10 October 2003 that Ms Tez is not entitled to compensation for her lower back condition. The reconsideration officer further found that Ms Tez is no longer suffering from the effects of a compensable lower back condition that would attract a payment of any benefit under the Safety, Rehabilitation and Compensation Act 1988 (the Act). A reviewable decision made on 10 October 2003 that Ms Tez is not entitled to compensation for absence from work on 30 May 2003 (N2003/1654).
·A reviewable decision made on 16 October 2003 that Ms Tez is not entitled to compensation for an injury affecting her left arm, shoulder and neck (N2003/1706).
·A reviewable decision made on 27 November 2002 that Ms Tez is fit to participate in the return to work program (N2002/1964).

2. At the hearing Mr Grey of counsel appeared for Ms Tez and Mr Kelly of counsel appeared for the respondent. The tribunal heard evidence given by the applicant, Mr L Hang, Ms P Smith, and a number of medical experts. The tribunal had before it the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T documents) and the exhibits tendered during the hearing.
background
3. Ms Tez was born on 1 August 1952 in Turkey and immigrated to Australia in 1979. She commenced her employment with Australia Post on 4 February 1994 as a cleaner. In 1998 she started working as a Mail Sorter and Mail Loader, which involved lifting, moving and sorting bags of large letters and parcels.
Lower Back Condition
4. In 1994 Ms Tez sustained severe muscle pain left side and abdomen and right…

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 48
Decision Date: 18 January 2005

CaseChat Overview and Summary

Tez brought an action against the Australian Postal Corporation, seeking compensation for injuries sustained during employment. The primary dispute centred around the extent of the injuries and whether they were work-related, including claims for permanent impairment in respect of his lower back, compensation for injuries affecting his left arm, shoulder, and neck, and compensation for incapacity due to absence from work. The matter was heard in the Administrative Appeals Tribunal. The key legal issues the tribunal had to resolve were whether the claimed injuries were indeed work-related, and if so, whether the respondent was liable for compensation under the Safety, Rehabilitation and Compensation Act 1988.

The tribunal first examined the evidence regarding the lower back injury and found that while the respondent had accepted liability for the injury, there was no basis to cease compensation payments for permanent impairment. The tribunal set aside the decision to cease liability, affirming the initial assessment of permanent impairment. Regarding the injuries to the left arm, shoulder, and neck, the tribunal concluded that these conditions were not work-related. The tribunal also rejected the claim that Tez was unfit to participate in a return to work program, affirming the respondent's decision in this regard. Finally, the tribunal dismissed Tez's claim for compensation for incapacity for absence from work, finding it was not related to the employment.

The tribunal's reasoning was grounded in the statutory provisions of the Safety, Rehabilitation and Compensation Act 1988 and relevant case law, including March v E & MH Stramare Pty Ltd and Australian Postal Corporation v Oudyn. The tribunal carefully considered the medical evidence and Tez's submissions, ultimately upholding the respondent's decisions where they were consistent with the statutory framework and the evidence presented. The tribunal's final orders affirmed the respondent's liability for compensation concerning the lower back injury and set aside the decision to cease compensation payments for permanent impairment. All other claims were dismissed.

Orders