Whiteman and Australian Postal Corporation (Compensation) - [2015] AATA 954

Whiteman and Australian Postal Corporation (Compensation) [2015] AATA 954 (11 December 2015)

Division GENERAL DIVISION

File Numbers

2013/5220; 2014/0320; 2015/4164

Re

Cheryl Whiteman

APPLICANT

And

Australian Postal Corporation

RESPONDENT

DECISION

Tribunal
Ms G Ettinger, Senior Member

Date 11 December 2015

Place Sydney
The Tribunal affirms the decision in Matter 2013/5220.

The Tribunal affirms the decision in Matter 2014/0320.

The Tribunal affirms the decision in Matter 2015/4164.

No costs may be awarded.

........................................................................
Ms G Ettinger, Senior Member
CATCHWORDS
COMPENSATION – Applicant has accepted injury to left shoulder – surgery undergone – claim for ongoing incapacity and payments pursuant to sections 19 and 20 of the SRC Act – permanent impairment claim – previous decision by the Tribunal, and appeal to the Federal Court regarding the method of calculation of permanent impairment using AMA5 – decisions under review affirmed
LEGISLATION
Safety Rehabilitation and Compensation Act 1988 ss 19, 20, 24, 27
CASES
Comcare v Simmons (2014) 138 ALD 58

Whiteman v Australian Postal Corporation [2010] AATA 645
Whiteman v Australian Postal Corporation [2011] FCA 1427

Whiteman v Australian Postal Corporation [2015] AATA 486
SECONDARY MATERIALS
Comcare Guide to the Assessment of the Degree of Permanent Impairment

American Medical Association’s Guides
REASONS FOR DECISION
Ms G Ettinger, Senior Member
11 December 2015
SUMMARY

Ms Cheryl Whiteman, aged 65, is the Applicant before this Tribunal in three applications for review of decisions of the Respondent, Australian Postal Corporation, (Australia Post). Ms Whiteman was represented by Mr Leo Grey of counsel, and the Respondent by Mr Matthew Gollan of counsel.
Ms Whiteman was injured at work on 29 July 2004, and has an accepted claim in regard to her left shoulder. The decisions under review refused her claim for permanent impairment, and compensation pursuant to sections 19 and 20 of the Safety Rehabilitation and Compensation Act 1988, (the SRC Act) for the periods 2006 – 2010, and ongoing.
Ms Whiteman had previously made a claim for permanent impairment of her left shoulder. The decision of the Tribunal affirming the decision of the Respondent denying Ms Whiteman’s claim for permanent impairment pursuant to sections 24 and 27 of the SRC Act, was published on 27 August 2010 (Whiteman v Australian Postal Corporation [2010] AATA 645).
Ms Whiteman appealed unsuccessfully to the Federal Court (Whiteman v Australian Postal Corporation [2011] FCA 1427). What the Federal Court did settle, was the method of determining the degree of permanent impairment which was to apply the ‘American Medical Association’s Guides’ (the AMA Guides) to calculate whole person impairment (WPI) in cases where the person has undergone arthroscopy, as in Ms Whiteman’s case.
After four days of hearing in June 2015, and during closing submissions, a question of jurisdiction of the Tribunal was raised. Mr Grey argued that notwithstanding Ms Whiteman had made no claim for incapacity for the period 3 July 2006 to 5 November 2010, (but only for the period 5 November 2010 and continuing), all matters of incapacity compensation arising from the…

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: [2015] AATA 954
Decision Date: 11 December 2015

CaseChat Overview and Summary

In the case of Whiteman and Australian Postal Corporation (Compensation), the applicant, Ms. Whiteman, contested a decision made by the Safety, Rehabilitation and Compensation Tribunal. Ms. Whiteman, who worked as a Postal Services Officer for the Australian Postal Corporation from 1989 until 2010, injured her left shoulder while lifting a heavy parcel in 2004. She sought compensation for ongoing incapacity and payments under sections 19 and 20 of the Safety Rehabilitation and Compensation Act 1988, as well as a claim for permanent impairment. The court was required to determine the appropriate method for calculating Ms. Whiteman's permanent impairment, and whether the Tribunal's previous decisions regarding this matter were correct.

The central legal issue in this case was the method of calculation of permanent impairment using the AMA5 guidelines. The Tribunal had previously determined that the appropriate method for calculating Ms. Whiteman's permanent impairment was to use the AMA5 guidelines. The Federal Court had previously upheld this decision, and the current matter sought to review these decisions. The court needed to consider whether the Tribunal's approach to calculating Ms. Whiteman's permanent impairment was correct and whether the decisions under review should be affirmed.

The court found that the Tribunal's approach to calculating Ms. Whiteman's permanent impairment using the AMA5 guidelines was correct. The court held that the Tribunal had appropriately considered the evidence and applied the correct legal principles in determining the method of calculation. The court also found that the Tribunal's previous decisions regarding Ms. Whiteman's permanent impairment claim were correct, and that there was no basis to set them aside. The court affirmed the decisions of the Tribunal, and held that no costs may be awarded.

In conclusion, the court affirmed the decisions of the Tribunal regarding Ms. Whiteman's permanent impairment claim, and held that the Tribunal's approach to calculating her permanent impairment using the AMA5 guidelines was correct. The court found that the Tribunal had appropriately considered the evidence and applied the correct legal principles in determining the method of calculation. The court also held that the decisions under review should be affirmed, and that no costs may be awarded.

Orders

Orders of the court

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Background

Background to the litigation

The relevant legislation in this matter is the Safety Rehabilitation and Compensation Act 1988, (the SRC Act), in particular sections 19, 20, 24 and 27.BACKGROUND Ms Whiteman worked as a Postal Services Officer for the Respondent from 1989 till her resignation on 5 November 2010. She is left handed, and injured her left shoulder attempting to lift a heavy parcel on 29 July 2004. Liability was accepted for sprained left shoulder, and Ms Whiteman’s medical expenses were paid pursuant to section 16 of the SRC Act. Dr Peter Beiers, a general practitioner and the Facility Nominated Doctor, whom Ms Whiteman consulted the day following her injury, specified restrictions on lifting and other activities for her. Ms Whiteman consulted him on many occasions, and his reports and medical certificates are in the T-documents. His clinical records dated 2000 – 2006 are at Exhibit A8. Ms Whiteman said that she was put on a graduated return to work plan, but that after some time, her arm became progressively more sore. She had an X-ray and ultrasound. In February 2005, Dr Stephen Kemp, a hand and upper limb surgeon performed a left arthroscopic acromioplasty and excision of the distal clavicle. Ms Whiteman was off work for three months following surgery, and made a graduated return to work. As liability had been accepted, Australia Post assumed responsibility for payment. On 8 April 2005, Dr Kemp stated at: Cheryl is out to eight weeks now … she is going very well. She still can’t lie on that side at night. The shoulder catches her a bit through the day but objectively she is moving smoothly through a full range with good strength. I am sure she will go on slowly (sic) settle and would be happy for her to look at slowly increasing her activity in the workplace. I have asked her to return for further review only if she (sic) having trouble. Ms Whiteman’s evidence was that her shoulder was sore, and she did not know how heavy parcels were until she lifted them. She also said that she felt unsupported because of her manager, Mr Alan Hardcastle’s, attitude towards her. She said that she found it hard to get assistance with her work within the bounds of her restrictions. By 3 July 2006 Ms Whiteman had negotiated to work 25 hours a week with lifting restrictions. This Tribunal, in its previous decision dated 27 August 2010 which dealt with Ms Whiteman’s permanent impairment claim, stated at [12]:After about three months after she had resumed full-time work, Ms Whiteman decided to cease full-time work and work part-time, for 25 hours per week, She says her supervisor at the time was not sympathetic to her impairment but her decision to work part-time was not related to her impairment as such (and Australia Post documents confirm that it was for “personal” reasons), She now works shifts of five hours, from 12pm to 5pm, alternating between 28 hours one week and 22 hours the next. The reasons for Ms Whiteman’s decision to work the part-time hours referred to above, were the subject of much discussion before me. Mr Gollan submitted that in deciding these matters I should be mindful of credit issues in regard to Ms Whiteman’s evidence in considering her applications for compensation, her decision to work part-time on and from 3 July 2006, and the circumstances of her resignation on 5 November 2010.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The decision under review must be affirmed. DECISION118. The Tribunal affirms the decision in Matter 2013/5220. 119. The Tribunal affirms the decision in Matter 2014/0320. 120. The Tribunal affirms the decision in Matter 2015/4164. 121. No costs may be awarded.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL DIVISION
File Numbers	2013/5220; 2014/0320; 2015/4164
Re	Cheryl Whiteman
APPLICANT
And	Australian Postal Corporation
RESPONDENT

Tribunal	Ms G Ettinger, Senior Member
Date	11 December 2015
Place	Sydney