Australian Postal Corporation v Sellick

Australian Postal Corporation v Sellick - [2008] FCA 236 - FCA 2008 case summary — Zoe

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The pain in the right shoulder - the injury of 2002 4 On 3 November 2002Mr Sellick lodged a claim for rehabilitation and compensation associated with his duties of V-sorting of mail and delivery of mail by motorcycle for 'pain in right shoulder'. No other injury to any other part of the body was identified in that claim form. It is agreed that the form of claim for compensation which Mr Sellick filled out was the form of claim for compensation approved by Comcare at the time. 5 The medical diagnosis of 8 November 2002 was 'Right interscapular stabiliser strain/shoulder and upper back pain'. On 22 November 2002, this was presented in a medical report as a history of having sustained 'a soft tissue injury of the right shoulder girdle musculature' ('the right shoulder injury') and, on examination, there was said to be tenderness in the upper thoracic area. Subsequent medical certificates and reports referred to upper back strain as well as shoulder pain. 6 Australia Post accepted liability under s 14(1) of the SRC Act for the right shoulder injury on 28 November 2002. By March 2003 Mr Sellick was pain and symptom-free and performing normal duties. On 7 September 2004 Australia Post wrote to Mr Sellick and referred to his claim in respect of the right shoulder injury. The letter then referred to a report of Dr Chew to the effect that the compensable condition had ceased in April 2004 and that on-going pain 'is more than likely to be the result of your pre-accident condition in the form of degenerative spinal disease'. The letter stated the intention to cease further payments of compensation. It provided the opportunity to provide evidence to refute that opinion and to explain the relationship between the condition and Mr Sellick's employment. Mr Sellick submitted a report by Dr Bills supporting his claim which was received by Australia Post on 11 October 2004. 7 On 15 October 2004 Australia Post decided that, based on medical evidence, the effects of the right shoulder injury had ceased and that Australia Post had no present liability in respect of that injury pursuant to the SRC Act ('the determination'). On 19 October 2004 Mr Sellick requested a reconsideration of the determination as being incorrect in fact and law. 8 On 27 October 2004, in the first reviewable decision, Australia Post reconsidered its liability for the right shoulder injury. The decision-maker considered that Mr Sellick was no longer suffering any effects of that injury, that he was not presently entitled to payment of compensation, and affirmed the determination. The first reviewable decision referred to the compensable injury of the right shoulder injury and the claimed injury of pain in the right shoulder. It made reference to the medical diagnosis of right shoulder/upper back pain as well as that of the right shoulder injury. It referred to Dr Chew's diagnosis of a "minor" soft tissue injury to the thoracic spine which had resolved, to an underlying constitutional degenerative thoracic spine disease and to a degenerative spinal disease which had not been caused, accelerated or aggravated by Mr Sellick's employment. Australia Post agrees that the decision-maker accepted that the medical evidence supported the existence of an underlying degenerative disease of the thoracic spine but confined herself to the claim with respect to the shoulder, which had resolved, in the absence of a separate claim for compensation for the degenerative condition. 9 Compensation for the right shoulder injury was therefore made from October 2002 to October 2004.

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THE FIRST REVIEWABLE DECISION: THE SHOULDER/ UPPER BACK CLAIM 13 The Tribunal determined that Mr Sellick had suffered and continued to suffer the effects of an aggravation of a degenerative spine condition and a sprain of the interspinous ligament which arose out of his employment with Australia Post. The Tribunal was satisfied that the proper interpretation of the claim made by Mr Sellick was a claim for an injury which caused pain in the upper back, which included pain in the area of the right scapula. That is, the Tribunal was satisfied that Mr Sellick continues to suffer from the effects of a work related injury which Australia Post had said had resolved. 14 The Tribunal cited the medical evidence in relation to the right shoulder/upper back. It referred to Drs Bills, Griffith, Cassar and McGill who were cross-examined. It also summarised the reports of doctors who were not cross-examined, Drs Shroot, Elder, Eaton and Chew, a physiotherapist Mr Wisdom and also the assessments of Drs Whittaker and Burke. 15 At [52], the Tribunal stated that it was satisfied on the basis of the evidence of Mr Sellick, all of the medical evidence and on the balance of probabilities that in the period of several months prior to and including October 2002 Mr Sellick suffered a soft tissue injury to his shoulder but that he no longer suffered the effects of this injury. However, the Tribunal was satisfied that as a result of his duties as a Postal Delivery Officer he suffered and, at the date of the Tribunal's decision continued to suffer, pain in the mid-upper back as a result of an aggravation of the condition of degenerative cervical spondylosis and/or a chronic sprained interspinous ligament ('the additional conditions'). 16 The Tribunal preferred the evidence of Drs Griffith and Cassar and noted that Dr Bills differed in his diagnosis but supported the view that Mr Sellick's ongoing problems are associated with the nature of his work duties (at [58]). 17 The Tribunal was satisfied that the injury to the right shoulder and the sprain of the interspinous ligament each constituted an "injury" within the definition in s 4 of the SRC Act and that the aggravation of the degenerative cervical spondylosis is a "disease" within the meaning of the SRC Act. Although Mr Sellick had only complained of pain in the right shoulder in the claim form, the Tribunal found that the injury was not so limited and that he continues to suffer the effects of the additional conditions. 18 Several issues arise in relation to the Tribunal's findings regarding the first reviewable decision. The issues arising from what are variously raised by Australia Post as questions of law or of reviewable error are whether:

the Tribunal decision was based, at least in part, on findings of fact in support of which there was no evidence.
in coming to its decision the Tribunal forgot or ignored evidence.
in coming to its conclusions, the Tribunal erred in its consideration of the totality of the medical evidence.
the Tribunal failed to consider submissions which could, if accepted, have affected the outcome of the case.
the Tribunal was entitled to find liability for an injury or disease because of particular work, where that work was not mentioned in a notice of injury or in a claim under the SRC Act and was not dealt with in a reviewable decision or the subject of an application under the SRC Act, contrary to the requirements of the SRC Act.
the additional conditions were properly considered the same injury as that notified by Mr Sellick.
the Tribunal gave sufficient reasons for its conclusion that injuries found to be compensable were related to the claimed injury. 19 Australia Post has put forward various and detailed particulars in support of each ground. Several of these particulars are repeated in relation to different issues. Accordingly, I shall deal with each particular only once. 20 Australia Post contends that, under the SRC Act, the only relevant injury is the injury for which a claim was made, namely the injury to the shoulder. The Tribunal accepted that, as at the date of its decision, Mr Sellick did not suffer the effects of this injury and accepted that the pain in the shoulder had resolved by the time of its decision. Australia Post says that the Tribunal addressed an injury to Mr Sellick's back, for which there was no claim. As to the question whether the injury that did occur could give rise to pain in the mid-upper back, Australia Post says that there is no evidence to support the Tribunal's conclusions. The medical evidence is to the effect that such a consequence of the injury was temporary. Further, Australia Post says that the delay between the evidence and the decision is relevant, as the Tribunal could not say that the consequences were still apparent at the time of its decision nearly a year after the evidence was complete. Australia Post refers to a number of evidentiary matters in support of its arguments.

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Dr McGill 28 Dr McGill was of the opinion that Mr Sellick's work duties would only cause a temporary increase in the level of symptoms for a few weeks at a time. This did not, in the Tribunal's view, explain why the symptoms would not persist if Mr Sellick continued to use the V-sort frame on a regular basis and continued to lift and deliver mail. 29 Australia Post takes issue with the Tribunal's statement at [56] to the effect that Dr McGill's evidence was the only evidence in support of this conclusion. Australia Post points out that Dr Cassar was also of the opinion that the symptoms were temporary. However, Dr Cassar recognised that the symptoms could persist if aggravated. He did not express the contrary view that the symptoms would resolve if the work continued. The Tribunal was not obliged to refer to Dr Cassar's opinion, even if it were supportive of Dr McGill's view. In context, it was not supportive but the Tribunal was under no obligation to refer to every possible fact or opinion of some relevance to a finding. 30 Australia Post then submits that the Tribunal overlooked the explanation given by Dr McGill as to why he allowed only a temporary aggravation. It points to Dr McGill's explanation that the work had not, in his opinion, caused any change in the underlying pathology. He was of the view that recurring symptoms of Mr Sellick's degenerative change fluctuate up and down and that Mr Sellick's work was of minor effect in causing the fluctuation. 31 The Tribunal clearly referred to the conclusion on the part of Dr McGill that Mr Sellick's work duties caused only a temporary increase in his symptoms for a few weeks at a time. It also referred to the view of Drs Chew and Whittaker that the effects of the incident in October 2002 had completely resolved and that the continuing pain experienced by Mr Sellick was more likely to be the result of this degenerative spinal disease. It referred to the lack of explanation of the link between the work and the underlying condition. That is, the Tribunal did refer to the explanations given by doctors of the same opinion as Dr McGill and rejected them. It then stated that it preferred the evidence of Drs Griffith and Cassar and that of Dr Bills, who differed in his diagnosis but supported the view that Mr Sellick's ongoing problems were associated with the nature of his work duties. It was entitled to do so. 32 It is not apparent that, had Dr McGill's explanation been taken into account, it would in any way have affected the preference on the part of the Tribunal for the evidence that it accepted. The Tribunal accepted that the effects of the shoulder injury had resolved. It expressed itself satisfied that Mr Sellick continued to suffer pain as a result of an aggravation of a pre-existing condition, which aggravation was a result of his duties. It did not elaborate on its acceptance of the evidence of Drs Griffith and Cassar in the face of a different diagnosis but that acceptance was open to it. Even if the Tribunal failed to explain or address the relevance of Dr Bills' evidence where his diagnosis was different, that evidence was only supportive of this particular conclusion. It did not provide the primary support for the finding and was not essential to it.

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The evidence of Dr Cassar 36 Australia Post contends that the Tribunal failed to grapple with aspects of Dr Cassar's evidence, including his opinion that whichever was the true location of the pain, cervical or mid-thoracic, the cause of pain would not be any condition of the shoulder and would be temporary, ending after the month that Mr Sellick took off work. This, it submits, was an important part of its case not dealt with by the Tribunal. 37 The Tribunal said that Dr Cassar agreed with the diagnosis of Dr Griffiths of musculo-ligamentous strain of the right shoulder girdles and cervical spondylosis. Dr Cassar changed his view of the site of the ongoing pain and concluded that whatever the site of the pain, it would not have been caused by an injury to the shoulder. He agreed that Mr Sellick had constitutional degeneration of the spine. This may have been temporarily aggravated by the injury and then, more likely than not, ended after a month off work unless further aggravated. Australia Post contends that there was no evidence to support this finding. 38 In cross-examination, Dr Cassar accepted that, on the basis of the history given to Dr Griffith, his opinion would be consistent with that of Dr Griffith. While this was not an unqualified agreement with Dr Griffith's diagnosis and nor was it Dr Cassar's expressed opinion, upon acceptance of Dr Griffith's diagnosis based upon the history given to him, it provides a basis for the Tribunal's statement. 39 Australia Post contends that the Tribunal did not deal with the submissions made to the effect that Dr Cassar supported no more than a temporary injury to the mid-thoracic spine and failed to support the on-going diagnoses accepted by the Tribunal as arising out of Mr Sellick's employment in October 2002. The Tribunal did note at [35] that Dr Cassar's view was that the strain injury would not be permanent. Australia Post contends that the Tribunal failed to appreciate that this view applied whether the injury was to the cervical spine or thoracic spine. However, Dr Cassar's view was said by the Tribunal to be not qualified by the site of the injury. 40 The Tribunal did deal with the medical view that the effect of the injury was temporary in nature and rejected it based on its view of the competing evidence. It did not fail to consider that aspect of Australia Post's case. It was entitled to accept a contrary view. I am not satisfied that the Tribunal failed to take account of this evidence or that it ignored Dr Cassar's opinion (as particularised by Australia Post in relation to issue 2). Those views were of one medical practitioner and were considered by the Tribunal in the context of the totality of the medical evidence.

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The subject of the claim 49 Section 53(1) of the SRC Act provides that the Act does not apply in relation to an injury unless notice in writing of the injury is given to the relevant authority (Lees v Comcare (1999) 56 ALD 84 at [35]). Compensation is not payable to a person under the SRC Act unless a claim for compensation is made by or on behalf of the person under s 54 (s 54(1)). Section 54(2) provides that a claim shall be made by giving the relevant authority a written claim in accordance with the form approved by Comcare and by giving a certificate by a legally qualified medical practitioner in accordance with the correct form. 50 "Injury" is not defined in the SRC Act in terms of its cause but in terms of an injury suffered by an employee arising out of, or in the course of, the employee's employment. The Tribunal has authority to decide whether there was liability for a particular injury or an aggravation of a disease. The Tribunal is not bound by Australia Post's assessment of what constitutes the injury (Hannaford v Telstra Corp Ltd (2005) 88 ALD 702). Section 7(4) of the SRC Act relevantly provides that an employee is taken to have sustained an injury, being a disease or an aggravation of a disease, on the day when he or she first sought medical treatment for the disease or aggravation. Mr Sellick does not suggest that anything turns on the difference in time between the date of the injury and the seeking of medical advice. Section 7(6) relevantly provides that incapacity for work or impairment of an employee shall be taken to have resulted from a disease or an aggravation of a disease if, but for that disease or aggravation, the incapacity or impairment would not have occurred or would have commenced at a significantly later time or would have been significantly less in extent. 51 The only claim made by Mr Sellick in the approved claim form in relation to the upper body was for shoulder pain. Mr Sellick described his injury as 'pain in right shoulder'. Australia Post accepted liability for soft tissue injury of the shoulder girdle musculature. The Tribunal considered whether it had jurisdiction to take into account the effects of aggravation of the degenerative condition of the spine and ligamentous strain in deciding whether Mr Sellick had ceased to suffer the effects of the injury suffered in October 2002 and the preceding months. It expressed itself satisfied that the injury in respect of which Mr Sellick claimed compensation was not limited to the soft tissue injury of the right shoulder. It noted at [17] that the medical certificates 'at the time, or very soon after, the claim form was lodged, referred to strained muscles of the right upper back, upper back pain and interscapular stabilizer strain' (at [63]). 52 The Tribunal also referred to Mr Sellick's history of informing some of the medical practitioners who examined him, including Dr Chew, that he suffered pain in the upper back, including the area of the mid-thoracic spine. The Tribunal concluded at [52] that: …in the period of several months prior to and including October 2002 Mr Sellick suffered a soft tissue injury to his shoulder but that at present he does not suffer the effect of this injury. [emphasis added] 53 In evidence to the Tribunal, Mr Sellick indicated that the pain from which he continued to suffer was in the mid-thoracic region of his back. The Tribunal continued at [52]: However, we are satisfied on the balance of probabilities that as a result of his duties as a Postal Deliver Officer employed by Australia Post he has suffered, and at the date of this decision continues to suffer, pain in the mid-upper back as a result of an aggravation of the condition of degenerative cervical spondylosis and/or a chronic sprained interspinous ligament. 54 The Tribunal came to this conclusion after referring to the fact that each of these conditions were referred to in the medical evidence over the period of 2002 to 2005. The medical evidence differed as to the cause of Mr Sellick's pain, the link between the pain and his work activities in 2002 and whether or not the symptoms were temporary or ongoing. 55 In Abrahams v Comcare (2006) 93 ALD 147, Madgwick J recognised that different descriptions can be given of the one injury and said at [18] that 'a broad, generous and practical interpretation' should be made to recognise the understanding of the lay person making the claim and different levels of medical advice and to understand whether the lay person completing it was asserting a different injury to that notified. The Tribunal said that, in applying the principles in Abrahams, it was satisfied that the proper interpretation of the claim made by Mr Sellick was for 'an injury which caused pain in the upper back, which included, but was not limited to, pain in the area of the right scapula'. Accordingly, the Tribunal determined that although Mr Sellick did not then suffer the effects of the soft tissue injury to the right shoulder, it could proceed to consider whether he continued to suffer the effects of the aggravation of the degenerative condition of his spine and the sprain of the interspinous ligament. Based on the views of Drs Griffith and Cassar, the Tribunal found that his duties are likely to continue to aggravate those conditions and to make the conditions symptomatic. 56 The Tribunal accepted that the effects of the injury to the right shoulder had resolved by the date of its decision. While it did not specify whether it had resolved by the date of the reviewable decision, it is implicit from the reasoning that the Tribunal accepted that it had resolved by that time. The basis for the Tribunal's decision was that the use of the V-sort machine also caused the additional conditions. The effects of the additional conditions continued to be present at the date of the decision and, therefore, necessarily present at the date of the reviewable decision. While the Tribunal noted at [55] that Mr Sellick's description of his symptoms was referable to one or both of the additional conditions, it accepted on the basis of the medical evidence as a whole that he suffered from both injuries (at [59]). Contrary to the submissions of Australia Post, the Tribunal's reasons sufficiently explain why it accepted both diagnoses. 57 No accident report or claim was specifically made for the additional conditions as is required by ss 53 and 54 of the SRC Act. If the additional conditions had not been the subject of a notice of injury under s 53, a claim for compensation under s 54, a determination under s 60, a reviewable decision under s 62 and an application to the Tribunal under s 64 of the SRC Act, the Tribunal had no power or jurisdiction to make the decision that it did. Australia Post accepts that, as the Tribunal noted, the medical certificates provided in support of the shoulder claim referred to complaints referable to the upper back and not related to the shoulder. A medical assessment by Dr Chew of July 2004 noted that Mr Sellick suffered from mid thoracic spine pain in October 2002 with no specific injury to account for the onset of his pain. Dr Chew's diagnosis of his then current condition was of soft tissue injury to his mid thoracic spine while carrying out his postal delivery duties, superimposed on constitutional degenerative changes in his thoracic spine. Australia Post accepts that the reviewable decision addressed whether the problems were due to an underlying constitutional disorder not caused, aggravated or accelerated by his employment. However, a mere reference to the spine in some of the medical certificates is, Australia Post says, insufficient compliance with the SRC Act. 58 The Tribunal concluded that the proper interpretation of Mr Sellick's claim was that it extended to an injury which caused pain to the upper back and Australia Post says that this is not the case. It contends that the claim was for a right shoulder injury which had resolved and there is no explanation of how that injury led to injuries to different parts of the body. 59 The Tribunal was entitled to accept certain of the medical evidence and to reject other evidence. It was entitled to prefer, as it did, the evidence of Dr Griffith (who examined Mr Sellick in December 2004) and Dr Cassar (who examined Mr Sellick in September 2004). However, neither the references made to the various medical reports nor the Tribunal's conclusions drawn from them explain the connection between the symptoms described by Mr Sellick and accepted by the Tribunal, the additional conditions accepted by the Tribunal and the injury of October 2002. For example, Dr Griffith's report addressed the symptoms and conditions at the time of his examination of Mr Sellick. Dr Cassar, whose opinion the Tribunal accepted, gave evidence as summarised at [36]: ...that Mr Sellick suffers degeneration in the thoracic spine as well as in the cervical spine, with the degeneration being "fairly substantial" in the cervical spine and "minimal" in the thoracic area. In his opinion the changes seen in 2003 would have taken at least eighteen months to two years to develop and therefore he expected the changes would have been present in October 2002. In his view at that time Mr Sellick suffered a temporary aggravation of the condition of his cervical spine which would have ended by the time Mr Sellick returned to work in May 2003. 60 There is no explanation given by the Tribunal for the conclusion that the injury of October 2002, described as pain in the right shoulder, caused the additional conditions. Even if the claim were for injury to another part of the body that resulted in right shoulder pain, the Tribunal accepted that the effects of that injury had resolved. Unlike Abrahams where the applicant for review described a wrist injury but did not state the correct diagnosis, the injury to Mr Sellick's shoulder had resolved and different injuries were accepted as a basis for liability. The injuries may have arisen out of Mr Sellick's employment with Australia Post (as accepted at [60]) but the Tribunal has not explained how they arose out of the claimed injury in 2002. It is noteworthy that the medical reports of 2002 summarised by the Tribunal were not the ones referred to as supporting the Tribunal's conclusions. 61 Mr Sellick accepts that the Tribunal characterised the additional conditions as injuries separate to the injury to the right shoulder and that it found three separate injuries, all suffered in 2002. He says that the Tribunal at [66] only accepted that Mr Sellick no longer suffered the effects of the soft tissue injury to the right shoulder but continued to suffer pain, including pain in the right shoulder, arising from the spinal injury and the sprain to the interspinous ligament. If that is the case, the Tribunal's reasoning is far from clear. At [52] the Tribunal expressed itself satisfied that 'at present he does not suffer the effects of'a soft tissue injury to his shoulder but was satisfied that, at the date of its decision, he 'continues to suffer, pain in the mid-upper back as a result of an aggravation of the condition of degenerative cervical spondylosis and/or a chronic sprained interspinous ligament'. That is, the only ongoing pain as at the date of the Tribunal decision was in the mid-upper back and not in the shoulder. 62 Dr Cassar's report noted that the claimed injury was 'right shoulder girdle injury'. He referred to association with the cervical spine. Changes to a minor degree noted in the upper thoracic spine were, in his view, unrelated to employment but aggravated by 'persisting work necessitating constant above shoulder work…as well as work necessitating repeated lifting of full postal bags weighing in excess of 10kg'. Dr Griffith referred to cervical spondylosis which was not work related with "minimal changes" in the thoracic region and said that it was "likely" that the use of the V-sort 'aggravated the symptoms from which he now suffers'. Dr Griffith's prognosis was of cervical and thoracic spondylosis with periodic exacerbations and remissions 'irrespective of activities in the workplace'. He was also of the view that pre-existing degenerative changes would have been rendered symptomatic by activities in the workplace. While each report linked Mr Sellick's work activities and the pain in the mid-thoracic spine, they did not explain the connection with the claimed injury.

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Issue 7: Did the Tribunal give sufficient reasons for its conclusion that the compensable injuries were related to the claimed injury? 63 Having accepted that the shoulder injury the subject of the claim had resolved, Australia Post says that the Tribunal did not explain how each of the additional conditions resulted from or was connected to the injury described in Mr Sellick's claim for compensation, even if they were work-related. Australia Post contends that the Tribunal therefore breached its duty under ss 43(2) and 43(2B) of the AAT Act. 64 The Tribunal has an obligation to give reasons that make it possible to understand its reasoning process. Failure to do so is an error of law (Lang v Comcare (2007) 94 ALD 141 at [54]-[55] per Stone J citing TelePacific Pty Ltd v Commissioner of Taxation (2005) 218 ALR 85). This includes an obligation to give reasons for rejecting evidence that is plainly central to a party's claim and crucial to a medical report that supported that claim (Lang at [54] per Stone J). As was pointed out by Stone J in Lang at [53]-[55], the Tribunal is entitled to accept or reject the respective pieces of evidence before it or to accord certain pieces of evidence different weight. It is under no obligation to refer to all of the evidence before it. There is no obligation to make a finding on every question of fact that may be regarded as objectively material. The Tribunal is entitled to refer to all the medical reports, as Mr Sellick says the Tribunal did and to accept and reject evidence as it sees fit. The Tribunal is entitled to reject medical evidence or simply to prefer contrary medical evidence. It is obliged, however, to include in its reasons findings on all material questions of fact. Where a failure to give reasons makes it impossible to understand the Tribunal's reasoning process, that is an error of law. 65 There was conflict in the medical evidence as to the cause of the pain in Mr Sellick's shoulder in 2002. The Tribunal set out a summary of the various medical reports and evidence. It did not refer to each relevant piece of medical evidence and was not required to. It accepted certain medical opinions and rejected others. It was entitled to do so. There was evidence to support the conclusion that pain in the right shoulder could result from aggravation to a pre-existing degenerative condition of cervical spondylosis. However, the pain in the right shoulder had resolved. Mr Sellick's complaint at the Tribunal hearing was of thoracic pain. The Tribunal did not explain how the current symptoms arose from the claimed injury or how the aggravation of the pre-existing condition that caused the pain in the right shoulder because of the claimed injury now caused pain in the thoracic spine but not pain in the right shoulder. The Tribunal appears to have considered the spinal injuries or spine-related injuries or conditions as separate from the injury to the shoulder, in which case it does not explain how they were connected to the claim. 66 Mr Sellick emphasises that the claim form was for pain in the right shoulder and not injury to the right shoulder and submits that ongoing pain in the right shoulder arose from each of the three injuries. He points out that early medical reports referred to the right shoulder and right upper back. Mr Sellick submits that the ultimate issue for the Tribunal was whether Mr Sellick suffered symptoms relating back to the claim form. The issue of pain in the right shoulder is relevant to the ultimate issue before the Tribunal as it was the subject of the notification of injury and the identifying symptom of the injury or disease for which compensation was being claimed. It was the symptom that the medical reports accepted. The Tribunal, without explanation, linked that now resolved symptom to the previously existing, not work-related non-symptomatic degenerative spinal condition. 67 The Tribunal failed to explain how, in those circumstances, Australia Post was liable for the additional conditions or the injuries that caused them.

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Conclusion on the first reviewable decision 68 I am not satisfied that the Tribunal made findings of fact in respect of which there was no evidence. Australia Post has not established that the Tribunal forgot or ignored evidence or that, in coming to its conclusions, the Tribunal erred in its consideration of the totality of the evidence. I am not satisfied that the Tribunal failed to consider submissions which could, if accepted, have affected the outcome of the case. 69 Mr Sellick gave notice of and claimed pain in the right shoulder. The medical reports provided in support of that claim and in identifying the cause of that pain, referred to upper back pain and strained muscles of the right upper back. He gave a history of pain in the upper back, including the area of the mid-thoracic spine. Subsequent medical reports described degenerative spinal disease and the Tribunal accepted the evidence that aggravation of that disease was caused by Mr Sellick's work duties. At the time of his evidence to the Tribunal Mr Sellick had continuing pain in the mid-thoracic region. The pain in the right shoulder had ceased and the Tribunal accepted that the effects of the shoulder injury had resolved. It can be accepted that it had ceased by the time of the first reviewable decision. 70 In circumstances where all pain resulting from the injury ceased when Mr Sellick ceased duties and the claimed injury causing pain in the right shoulder had resolved, the Tribunal did not give reasons for its conclusion that the additional conditions, which it accepted to be different injuries but work-related, were caused by or connected with the claimed injury. This is not a case, like Abrahams, where the medical diagnoses differently described the same injury as that claimed. The way that Mr Sellick described the pain in his shoulder did not limit the relevant injury only to the right shoulder. However, the claim was for an injury that covered pain in the right shoulder. The Tribunal accepted that both the pain to the shoulder and injury to the shoulder had resolved. The Tribunal did not explain how the additional conditions that continued after the shoulder pain resolved were related to the claimed injury of shoulder pain. 71 Further, the Tribunal did not explain how Australia Post was liable under the SRC Act. The notice and the claim referred to right shoulder pain which had resolved. The first reviewable decision can, read beneficially to Mr Sellick, be said to have included reference to the additional conditions in that it included a reference to Dr Shroot's and Dr Chew's medical certificates of 2004 that diagnosed some upper back pain and minor soft tissue injury to his thoracic spine. However, those conditions were found to have resulted in pain in a different area to that the subject of the claim, the mid-thoracic spine. The degenerative spinal condition was a pre-existing condition. While injury or disease of the thoracic spine was referred to in the first reviewable decision, it was not the subject of that decision. It was referred to in the context of pre-existing conditions which were not relevant to the claimed injury. In finding liability under the SRC Act for the additional conditions which had not been the subject of a notice of injury (s 53), claim for compensation (s 54), a determination under s 60, the first reviewable decision (s 62) and an application to the Tribunal (s 64), the Tribunal failed to observe the limitations on its jurisdiction flowing from these sections of the SRC Act and the procedural prerequisites to entitlement to compensation under the SRC Act (Lang at [41]-[43]; Lees at [35]). 72 The medical opinion accepted by the Tribunal, given some two years after the claimed injury, was that the additional conditions were aggravated by Mr Sellick's work duties. The Tribunal does not explain how the claimed pain and injury of 2002 which had resolved resulted in the additional conditions which, in turn, were the reason for Mr Sellick's ongoing pain. The 2004 diagnoses were made well after the injury he sustained in 2002. Mr Sellick has not demonstrated how they fulfil the claim requirements of the SRC Act. It is impossible to understand from the Tribunal's reasons the reasoning process that led it to conclude that Australia Post continued to be liable for a claimed injury that had resolved and where the claimed symptoms of that injury had resolved. The Tribunal accepted that the additional conditions were caused by or rendered symptomatic by Mr Sellick's work duties but did not explain the connection with the specific claim. Failure to consider issues critical to the validity of its decision is a failure to address the correct legal question which is an error of law (Australian Postal Corporation v Barry [2006] 44 AAR 186 at [23]-[24]). There is an error of law where the Tribunal's reasoning is impossible to understand (Lang at [55]). 73 The Tribunal failed to give reasons for its conclusion that Australia Post was liable under the SRC Act. The Tribunal is obliged to give reasons for its decision (s 43(2) of the AAT Act). While not obliged to make a finding on every question of fact that is objectively material to the Court conducting judicial review (Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]; Lang at [53]), the Tribunal is obliged to include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based (s 43(2B) of the AAT Act).

[25]

The lifting of tubs and bags of mail by Mr Sellick 75 At [84] the Tribunal concluded that 'in view of the evidence of Dr Griffith and taking into account that Mr Sellick has been involved in lifting tubs and bags of mail weighing up to 25 kg as a regular part of his work-duties over many years' ('the material fact') it was satisfied that his employment contributed in a "material" degree to the development and aggravation of his bilateral hernia condition. 76 Australia Post says that there was no evidence to support the finding on which that conclusion was based. Although Dr Griffith noted in his report that lifting is a major feature of the duties of a Postal Officer he did not receive a precise history of lifting mail bags. There was some history of repetitive lifting of pannier bags which was described as 'not heavy lifting, but somewhat repetitive'. Dr Griffith's evidence at the hearing was that his understanding was that there was not a heavy lifting requirement but that there was a repetitive lifting of bundled mail. Such lifting was repetitive; not in the sense of process work but bundled mail was lifted on a number of occasions. Australia Post says that there was no evidence before the Tribunal that Mr Sellick regularly lifted weights of up to 25 kg. 77 Lifting had not been the subject of any claim. Mr Sellick claimed that the hernias resulted from the walking that he was required to do. He gave no evidence of the material fact. Nor did Ms Prykiel, a Postal Delivery Coordinator Grade 1, who was called to give evidence. She said that after sorting letters, which involved taking a handful of mail from trays in a trolley, the next task was to sort the large letters. Following this, Mr Sellick was required to lift a white bin holding up to about 15kg, but usually less. He was required to lift one, two or three of these bins each day. Ms Prykiel agreed that the white bins were 'sometimes regularly or occasionally' overfull and would therefore weigh over 15 kg. She also accepted that 'there are cases out there' where the bins did exceed 20 kg. In response to a question as to cases where the white bins would have weighed in excess of 25 kg, Ms Prykiel's response was 'I can't see them ever weighing over 25 kilos, unless - I don't know'. She said that it was unlikely but conceded that it is possible. The questions to which these responses were given were in the abstract. They were not directed to Mr Sellick's activities. 78 Contrary to the finding at [84], that the lifting has been regular and over many years, on the basis of Ms Prykiel's oral evidence the Tribunal was satisfied (at [14]) that: …on occasion Mr Sellick has lifted bins of mail weighing up to 25 kg. The evidence does not enable us to decide how often this happens. [emphasis added] 79 The Tribunal's findings of fact arising from Ms Prykiel's evidence are not consistent. The finding of the material fact at [84] is also inconsistent with the general finding of fact at [13], based on Ms Prykiel's evidence, that as part of his mail sorting duties Mr Sellick was, in 2002, required to lift bins holding up to (but often less than) 15 kg of mail. He was required to lift two or three bins each day. He was also required in 2002 to lift depot bags which would hold up to 16 kg of mail, sometimes three or four bags daily, sometimes only one. 80 Mr Sellick could not point to any evidence to support the finding of the material fact, on which the Tribunal's conclusion was based. 81 Mr Sellick points out that the ultimate issue for the Tribunal was whether he suffered an injury at work, being a hernia condition. That being the case, he submits that he is under no obligation under the SRC Act to identify the cause of the injury. It matters not, he submits, whether he said that he had felt the pain while walking and not while lifting. The Tribunal accepted the medical evidence that the cause of the injury was Mr Sellick's employment. 82 The difficulty for Mr Sellick is that the Tribunal's finding was that the cause of the hernias was the material fact. There was no evidence to support that finding. The Tribunal did not otherwise determine a work-related cause of the injury. The Tribunal did not separately consider the possible differences between a hernia caused by walking and a hernia caused by lifting. The notice of injury under s 53 of the SRC Act that gave rise to the claim under s 54 was limited to injury from walking. The decision that Mr Sellick was entitled to compensation for the claimed injury was an error of law.

[27]

Osteoarthritis 83 Australia Post submits that the Tribunal failed to deal with evidence and submissions which could have affected the outcome of the Tribunal decision on the second reviewable decision. That evidence and those submissions were to the effect that any symptoms said to be due to the alleged hernias, particularly pain on walking, were due to osteoarthritis of the hip that was not related to Mr Sellick's employment. There was evidence from a number of doctors, namely Drs McGill, Burke and Endrey-Walder, who saw osteoarthritis as the more likely explanation for the symptoms experienced by Mr Sellick when walking. There was evidence that, at the time that Mr Sellick made a claim against his Body Corporate in 1997, he had osteoarthritis in his hips that was said to have resulted in difficulty in walking. 84 Osteoarthritis was not clearly acknowledged by Mr Sellick, nor was it denied. The evidence was that osteoarthritic changes are consistent with difficulties in walking. Such difficulties are not consistent with a hernia where they are not associated, as they were not for Mr Sellick, with discomfort when coughing or straining. 85 Mr Sellick did not point to any part of the Tribunal's reasons where it considered the possibility of osteoarthritis or the medical opinion on that possibility. He submits that it is clear from the whole of the Tribunal's reasons that it heard evidence from the medical experts and decided, as a finding of fact, the condition from which Mr Sellick suffered. He submits that it is a matter of a finding of fact based on the weight of the evidence. Mr Sellick also submits that, even if the Tribunal did not deal with this submission, it did not relate to an essential element for the Tribunal to determine. 86 At [77] the Tribunal found, in relation to the hernia, that Dr Burke was 'unable to identify any other cause of Mr Sellick's symptoms'. However, the Tribunal did acknowledge that Dr Endrey-Walder had taken into account osteoarthritis as a possible alternative cause of the pain complained of. At [76] the Tribunal referred to Dr Endrey-Walder's diagnosis that Mr Sellick suffered 'fairly advanced osteoarthritic changes at the hip joints'. The Tribunal therefore accepted the fact of osteoarthritis but did not address or consider it in the context of the claimed injury. It did not address or consider Australia Post's contention that the claimed pain was not due to a work-related injury but due to osteoarthritis. 87 If the Tribunal had accepted the diagnosis that osteoarthritis was the cause of the pain on walking, it would have rejected the hernias as that cause and the work-related cause of the pain. This failure to consider this alternative explanation for Mr Sellick's symptoms was a failure to consider an aspect of Australia Post's case which, if accepted, would have denied compensation under the SRC Act. This amounts to jurisdictional error.

[29]

Does s 44 of the AAT Act cover the field and exclude appeals under the ADJR Act or the Judiciary Act? 92 Section 44(1) of the AAT Act provides that: (1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding. 93 Section 5 of the ADJR Act relevantly provides that: (1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds: (a) that a breach of the rules of natural justice occurred in connection with the making of the decision; … (e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made; (f) that the decision involved an error of law, whether or not the error appears on the record of the decision; … 94 Australia Post relies upon each of those available grounds. 95 Section 5(1)(f) of the ADJR Act contains a stipulation in the word "involved" that the error be material in contributing to the decision so that but for the error, the decision might have been different (Bond at 353-354 per Mason CJ, East Australia Pipeline Pty Ltd v ACCC (2007) 239 ALR 50 at [71] per Gummow & Hayne JJ). As discussed, the error of the Tribunal in respect of the second reviewable decision is such an error of law. 96 Mr Sellick argues that the ADJR Act application should be struck out as a matter of course because s 44 of the AAT Act covers the field when relief is sought under it. Mr Sellick argues that s 44 provides a suitable remedy and also reflects the intention of the legislature to restrict the type of appeals from decisions of the Tribunal. There are conflicting decisions in the Court as to whether this submission is correct. 97 In Comcare v Etheridge (2006) 149 FCR 522, Branson J (Spender and Nicholson JJ agreeing) stated at [14] that the legislature, by creating a statutory right of appeal to a party to a proceeding before the Tribunal in the narrow terms of s 44(1) of the AAT Act, 'disclosed an intention to limit the capacity of the Court on an appeal under s 44(1) to review factual findings of the Tribunal'. An appeal under s 44 is therefore different to an appeal by way of rehearing under s 24 of the Federal Court of Australia Act 1976 (Cth). Rather, an appeal under s 44 is of the same character as the subject matter of a reference of a question of law under s 45 of the AAT Act. Justice Branson also summarised (and applied) Birdseye v Australian Securities and Investment Commission (2003) 76 ALD 321. 98 In Birdseye, the appeal was brought in reliance on s 44 of the AAT Act. Justices Branson and Stone expressed approval of comments made by Gummow J in TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178 where his Honour pointed out that where an appeal lies "on a question of law" the subject matter of the appeal is the question or questions of law stated (Birdseye at [11]; cf Etheridge at [13]). Their Honours also approved the comments of Ryan J in Australian Telecommunications Corp v Lambroglou (1990) 12 AAR 515 at 527 namely that 'If the question, properly analysed, is not a question of law no amount of formulary like "erred in law" or "was open as a matter of law" can make it into a question of law' (Birdseye at [13]-[15]; cf Etheridge at [15]). Accordingly, a mixed question of fact and law is not a question of law within s 44(1) of the AAT Act (Birdseye at [18]). 99 Justice Branson pointed out at [27] and [30] in Etheridge that judicial review under s 5(1) of the ADJR Act is also available for Tribunal decisions under the SRC Act where such an application is made. In Brown v Repatriation Commission [2006] FCA 914 Branson J referred at [8] to the fact that the ADJR Act provided an alternative source of jurisdiction to the AAT Act. In Barry Branson J made orders under s 5 of the ADJR Act for errors of law when it was not clear that the Court's jurisdiction under s 44(1) of the AAT Act was properly invoked. Mr Sellick argues that her Honour's comments in Etheridge and Brown are obiter and that Ms Barry was unrepresented so that no submissions on jurisdiction under the ADJR Act were made. 100 In Minister for Immigration & Citizenship v Hassani (2007) 94 ALD 378 there was an objection to jurisdiction under the ADJR Act and the Judiciary Act in an appeal under s 44 of the AAT Act. Separate applications were filed. Justice Besanko considered that neither the AAT Act nor the ADJR Act provided the relief sought but made orders under s 39B of the Judiciary Act (at [29]-[30]; [32]). 101 Mr Sellick submits that where an appeal lies under s 44 of the AAT Act, applications brought under s 5 of the ADJR Act should be dismissed unless the subject of the appeal is a decision going to practice and procedure. He relies on Duong v Australian Postal Corporation (2005) 41 AAR 288 at [12] where Edmonds J dismissed an ADJR Act application where the Tribunal decision did not go to practice and procedure. His Honour followed Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 where Davies J had held that, as s 44 of the AAT Act provides a specific procedure for the granting of relief by the Court in respect of decisions of the AAT, that procedure should be adopted and applications brought under s 5 of the ADJR Act, where an appeal under s 44 of the AAT Act is available, should be dismissed as of course (at 484). Justice Davies expressed the view at 484 that questions of law as provided for in s 44 of the AAT Act encompass grounds enunciated in s 5 of the ADJR Act. Duong was decided prior to Etheridge, a decision of the Full Court and Tuite was decided prior to Birdseye, which discussed the difficulties in the framing of questions of law. Further, the ADJR Act is not only available for matters of practice and procedure (Bond at 337 per Mason CJ; Griffith University v Tang (2005) 221 CLR 99 at [89]-[90] per Gummow, Callinan and Heydon JJ). 102 Several decisions of the Court have followed Tuite (eg Peczalski v Comcare (1999) 58 ALD 697 per Finn J; Chowdhary v Bayne (1999) 29 AAR 100per Finn J; Percerep v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 483 per Weinberg J) but Mr Sellick did not point to any case where that course was taken since Etheridge. 103 Australia Post submits that Duong and Tuite should not be followed. It submits that s 10 of the ADJR Act makes it plain that the rights conferred by that Act are in addition to the rights otherwise conferred to review decisions. Mr Sellick submits that, if there is concurrent jurisdiction, the Court should exercise in discretion so that the grounds of review under the ADJR Act are no more extensive than questions of law available under the AAT Act. 104 The ADJR Act and s 39B of the Judiciary Act were introduced after the AAT Act. Decisions of the Tribunal have not been excluded by the schedule to the ADJR Act. The question of jurisdiction under those Acts in addition to jurisdiction under the AAT Act was considered by a Full Court in Etheridge. I see no reason to strike out the ADJR Act application as a matter of course. I do not accept Mr Sellick's submission that the applications cannot be advanced and heard simultaneously on similar grounds. 105 The grounds advanced by Australia Post which I have found to be made out do not relate to grounds of review that would involve further evidence (as in Percerep). I am not satisfied that I should strike out the ADJR Act application or exercise the discretion in s 10(2) of the ADJR Act to refuse relief under that Act. The fact that there are errors of law that found relief under the ADJR Act that are identical to the errors of law that found questions of law as set out in the application filed under the AAT Act goes to the practical outcome of the relief, a single remittal to the Tribunal.

Parties

Applicant/Plaintiff:

Australian Postal Corporation

Respondent/Defendant:

Sellick

Legislation Cited (5)

Safety, Rehabilitation and Compensation Act 1988(Cth)ss 4, 7(4), 7(6), 53, 54, 60, 62, 64

Administrative Appeals Tribunal Act 1975(Cth)ss 43, 44

Administrative Decisions (Judicial Review) Act 1977(Cth)s 5

Judiciary Act 1903(Cth)s 39B

Federal Court of Australia Act 1976(Cth)

Cases Cited (17)

Australian Postal Corporation v Sellick [2008] FCA 236 ADMINISTRATIVE LAW - decision of Administrative Appeals Tribunal setting aside two reviewable decisions under Safety, Rehabilitation and Compensation Act 1988 (Cth) - whether Tribunal made findings of fact in support of which there was no evidence or forgot or ignored evidence - Tribunal did not make findings of fact in support of which there was no evidence or forget evidence in relation to first reviewable decision - whether Tribunal failed to consider submissions of substance - Tribunal not obliged to refer to every aspect of evidence or submissions supporting its view - whether compensable injuries found were properly the subject of a claim under the Safety, Rehabilitation and Compensation Act or properly considered to be the same injury as that originally notified - Tribunal did not explain how additional conditions arose out of claimed injury - Tribunal accepted respondent no longer suffered from effects of injury as originally notified and claimed - Tribunal did not give sufficient reasons for decision that compensable injuries were related to claimed injury - Tribunal failed to consider important alternative explanation in relation to second reviewable decision - finding of material fact for which there was no evidence - both reviewable decisions to be remitted to Tribunal ADMINISTRATIVE LAW - applicant appeals under s 44 of Administrative Appeals Tribunal Act 1975 (Cth), s 5 of Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of Judiciary Act 1903 (Cth) - grounds of appeal same - whether Court has jurisdiction under both applications - whether judicial review be limited to question of law - whether Court should exercise discretion to restrict to questions of law - Comcare v Etheridge (2006) applied - applications heard simultaneously

Administrative Appeals Tribunal Act 1975 (Cth) ss 43, 44 Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5 Federal Court of Australia Act 1976 (Cth) Judiciary Act 1903 (Cth) s 39B Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 7(4), 7(6), 53, 54, 60, 62, 64 Abrahams v Comcare (2006) 93 ALD 147 considered Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 cited Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 followed Australian Postal Corporation v Barry [2006] 44 AAR 186 cited Australian Telecommunications Corp v Lambroglou (1990) 12 AAR 515 cited Birdseye v Australian Securities and Investment Commission (2003) 76 ALD 321 considered Brown v Repatriation Commission [2006] FCA 914 considered Casarotto v Australian Postal Corporation (1989) 86 ALR 399 cited Chowdhary v Bayne (1999) 29 AAR 100 cited Comcare Australia v Rowe (2002) 35 AAR 410 cited Comcare v Etheridge (2006) 149 FCR 522 followed Dennis Willcox Pty Ltd v FCT (1988) 79 ALR 267 cited Duong v Australian Postal Corporation (2005) 41 AAR 288 considered East Australia Pipeline Pty Ltd v ACCC (2007) 239 ALR 50 cited Griffith University v Tang (2005) 221 CLR 99 cited Hannaford v Telstra Corp Ltd (2005) 88 ALD 702 cited Lang v Comcare (2007) 94 ALD 141 cited Lees v Comcare (1999) 56 ALD 84 cited Ma v FCT (1992) 37 FCR 225 cited Minister for Immigration & Citizenship v Hassani (2007) 94 ALD 378 considered Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 cited Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 cited NAIS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 470 cited Peczalski v Comcare (1999) 58 ALD 697 cited Percerep v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 483 cited Repatriation Commission v Gosewinckel (1999) 59 ALD 690 cited Repatriation Commission v Hill (2002) 69 ALD 581 considered TelePacific Pty Ltd v Commissioner of Taxation (2005) 218 ALR 85 cited Tobacco Institute of Australia Ltd v National Health and Medical Research Council (1996) 71 FCR 265 cited TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 cited Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 considered AUSTRALIAN POSTAL CORPORATION v ALLAN SELLICK ACD 7 OF 2007 AUSTRALIAN POSTAL CORPORATION v ALLAN SELLICK AND ADMINISTRATIVE APPEALS TRIBUNAL ACD 8 OF 2007

(1990) 170 CLR 321

(1989) 86 ALR 399

(2006) 149 FCR 522

(1988) 79 ALR 267

(2007) 239 ALR 50

(2005) 221 CLR 99

(1992) 37 FCR 225

(2003) 198 ALR 59

(2001) 206 CLR 323

(2005) 228 CLR 470

(1998) 86 FCR 483

(2005) 218 ALR 85

(1996) 71 FCR 265

(1988) 82 ALR 175

(1993) 40 FCR 483

At a glance

Court

Decision date

Before

Source

Judgment (34 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (17)