Tracy and Australian Postal Corporation - [2004] AATA 1128

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 1128

ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1912

GENERAL ADMINISTRATIVE DIVISION )

Re NORMAN TRACY

Applicant

And

AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Mrs Josephine Kelly, Senior Member
Date29 October 2004
PlaceSydney

Decision
1. The reviewable decision dated 29 October 2003 is set aside.

2. Substituted therefor is the following:

(a) Mr Tracy suffered an injury to his neck in a motor vehicle accident on 9 March 2003 that resulted in occipital neuralgia which incapacitated him for work for the first time on 26 May 2003.

(b) Accordingly, the Respondent is liable pursuant to s 14 of the SRC Act.

[sgd] Senior Member

16.     The doctor noted “objective sensory loss above and behind the left ear possibly within the territory of the postauricular nerve. … There are multiple sites of severe tenderness, particularly over the left supraorbital ridge and the left temporal region.” Doctor Heard concluded “the cause of his pain is obscure at this stage”. He booked an MRI scan for Mr Tracy later that day.
17.     In his report of 5 August 2003 (Ex T1 document T81), Dr Heard noted that the MRI scan was normal and continued:
“His left-sided headaches have continued but they have lessened in severity slightly. On examination today his scalp tenderness seems more obviously localised to the left nuchal ridge. There is exquisite tenderness over the occipital nerve where percussion will reproduce pain in the left forehead and retro-orbital regions. He also describes pain as being sharp or stabbing in quality. These features suggest that his pain maybe due to occipital neuralgia”.

18. He discussed treatment options with Dr Tracy of massage and a tricyclic at first with the possibility of other treatments if necessary.
19. In his next report of 26 August 2003 (Ex T1 document T83), Dr Heard noted that Mr Tracy’s headaches had continued to improve, he was tolerating the tricyclic well but was yet to organise massage. Significantly, he said:
“Today he added some further history which in retrospect could have been very useful at the time. He was involved in a single vehicle accident a few days before the onset of these headaches and it is very likely that he suffered a whiplash type injury. This would be an accepted cause of sub-occipital muscle spasm and occipital neuralgia.”

20. Professor Lance saw Mr Ewings for medico-legal purposes on 20 January 2004 and provided a report of the same date (Exhibit A2). He recorded the history of the accident and stated that Mr Tracy worked in the mail centre until 21 March 2003 when he was allowed to drive again.
“Since then, when bending down, he has felt a pain in his left temple and behind his left eye which may persist for 5-10 minutes. This seems to come on after he experiences a pain in the left side of the upper part of his neck and can be brought on by any jar, such…

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: [2004] AATA 1128
Decision Date: 29 October 2004

CaseChat Overview and Summary

The matter involved Ms Tracy, who sought compensation from the Australian Postal Corporation for injuries she sustained in a workplace accident. The dispute centred on the nature of her injuries and the respondent's liability under the relevant statutory provisions. The case was heard in the Federal Court of Australia. The court was tasked with determining whether the respondent was liable for Ms Tracy's occipital neuralgia under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), and whether the administrative appeals tribunal had jurisdiction to determine a claim for medical expenses under section 16 of the same Act.

The primary issue before the court was whether Ms Tracy's occipital neuralgia was related to the workplace accident, given conflicting medical diagnoses. The court had to assess the evidence and decide whether the injury arose out of the employment as required by section 14. Additionally, the court needed to determine if the tribunal had jurisdiction to consider the claim for medical expenses under section 16, especially since it was not separately claimed by Ms Tracy and was not considered by previous decision makers.

The court found that Ms Tracy's occipital neuralgia did arise from the workplace accident, and thus the respondent was liable under section 14 of the SRC Act. The court set aside the previous decision and substituted it with a determination that the respondent is liable. Regarding the jurisdiction issue, the court held that the tribunal did not have the jurisdiction to determine the section 16 claim because it was neither separately claimed by Ms Tracy nor considered by previous decision makers. The matter was not adverted to by the previous decision makers, and thus no jurisdiction existed for the tribunal to make such a decision.

The final orders of the court included setting aside the previous decision and substituting it with a determination that Ms Tracy's occipital neuralgia arose from the workplace accident, thereby making the respondent liable under section 14. The court also held that the tribunal lacked jurisdiction to determine the section 16 claim for medical expenses.

Orders

Orders of the court

1. The reviewable decision dated 29 October 2003 is set aside.

2. Substituted therefor is the following:

(a) Mr Tracy suffered an injury to his neck in a motor vehicle accident on 9 March 2003 that resulted in occipital neuralgia which incapacitated him for work for the first time on 26 May 2003.

(b) Accordingly, the Respondent is liable pursuant to s 14 of the SRC Act.

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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