Sellick v Australian Postal Corporation

Judgment (11 paragraphs)

[1]

MANSFIELD & McKERRACHER JJ: 1 We have had the benefit of reading the reasons for judgment of Buchanan J in this matter. We adopt his Honour's recital of the issues and the relevant material, and respectfully agree with the conclusions which he has reached that the appeal should be dismissed with costs. 2 There are two matters upon which we wish to add some additional comments. They relate to the application in so far as it concerns the shoulder injury to the applicant. 3 The error of law asserted by the applicant was that the Administrative Appeals Tribunal (the AAT) erred in concluding, based upon the judgment of Bennett J in Australian Postal Corporation v Sellick (2008) 101 ALD 245, that it was confined to determining whether the applicant was entitled to compensation in respect of soft tissue injury to his shoulder. That was the decision of the AAT: see Sellick v Australian Postal Corporation [2009] AATA 158 at [31]. In effect, the AAT concluded that it could not give consideration to what Bennett J at [71] of her reasons referred to as the "additional conditions", namely aggravation of a degenerative condition of the spine, and chronic strain of interspinous ligament. As indicated, we agree with Buchanan J that the AAT properly concluded that it was confined to consider whether the soft tissue injury to the right shoulder of the applicant had resolved. Her Honour considered that the scope of the decision reviewable by the AAT in respect of pain in the right shoulder was so limited, applying Lees v Comcare (1999) 56 ALD 84. 4 Senior counsel for the applicant contended that the applicant was placed in a difficult position because, although the applicant argued that Bennett J had fallen into error in confining the nature of the reviewable decision in that way, he was unable to appeal from her Honour's decision because, despite that asserted error, he accepted that the orders made by her Honour were correctly made because the reasons for the decision of the AAT in its initial decision of 1 March 2007 were inadequate. 5 Whilst it is not necessary to decide that question on this application, we do not wish to be seen as acceding to that proposition. The decision of the Full Court in Australian Competition and Consumer Commission v Telstra Corporation Ltd (2009) 256 ALR 615 suggests to the contrary. The Full Court (Ryan, Jacobson and Foster JJ) entertained an appeal from orders made at first instance, notwithstanding that the appeals in that case did not seek to disturb either the operative declaration or the orders made. That was because the orders made left open the effect of conclusions which, had they been expressed in some declaratory form, would have been available to be appealed from, and in the result, could have been set aside or varied: see at 621-2, [23]-[24] and at 629, [64]-[66]. Their Honours followed and applied the observations of Burchett J in Baxter Healthcare Pty Ltd v Comptroller-General of Customs (1997) 72 FCR 467 and the cases to which his Honour there referred. In Australian Telecommunications Commission v Colpitts (1986) 12 FCR 395 at 402, Toohey J with whom Fisher J agreed reached a similar conclusion in circumstances when the essential part of the reasoning is "embedded in" the formal judgment of the Court as well as the Court's reasons or is "implicit in the judgment and providing the only basis upon which his Honour could" decline to remit the matter. 6 Secondly, we note that the respondent, by senior counsel, indicated to the Court that, in the event that the applicant makes a fresh claim or claims with respect to the "additional conditions" referred to above, the respondents will not take any point that the applicant has not given adequate or proper notice of such claims. 7 There is something to be said for the proposition that the notice of injury initially given by the applicant, namely "pain in the right shoulder" was, by the subsequent presentation of various medical certificates and medical reports, sufficient to have constituted a claim that the pain in his right shoulder flowed either from soft tissue injury in the shoulder, or from aggravation of a degenerative spinal condition, or from chronic sprained interspinous ligament, or from a combination of those conditions: see eg the remarks of Madgwick J in Abrahams v Comcare (2006) 93 ALD 147 at [18] and at [21], and in Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253 at [57]. They were matters addressed in the first AAT decision. However, that is not what was decided by Bennett J in the decision referred to in [3] above, and the AAT was bound to give effect to her Honour's conclusions, in the absence of any appeal from her Honour's orders. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Mansfield and McKerracher.

The Shoulder Injury 11 The first AAT decision had found that pain in Mr Sellick's shoulder and/or mid-upper back was caused by three different conditions identified as a soft tissue injury to his shoulder, a degenerative condition in his spine and a sprained interspinous ligament, as follows: 52. Having considered the evidence of Mr Sellick and all of the medical evidence we are satisfied 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 at present he does not suffer the effects of this injury. However, we are satisfied on the balance of probabilities that as a result of his duties as a Postal Delivery 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. … 59. For the reasons already stated we are satisfied that in the months leading up to October 2002 Mr Sellick suffered a soft tissue injury to his right shoulder, an aggravation of a pre-existing condition of degenerative cervical spondylosis and a chronic sprained interspinous ligament. 12 As was clear from the extracts already set out, the AAT found that the soft tissue injury to Mr Sellick's shoulder had resolved. However, it decided it could assess his claim as though it extended to include a claim for compensation for the effects of the other two conditions. Accordingly, the AAT said, in its first decision: 66. … we are satisfied that the proper interpretation of the claim made by Mr Sellick is that it was a claim 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. It is therefore proper that we consider whether Mr Sellick continues to suffer the effects of the aggravation of the degenerative condition of his spine and the sprain of the interspinous ligament. As previously indicated we have decided that Mr Sellick does not presently suffer the effects of the soft tissue injury to the right shoulder. 67. For the reasons already stated we prefer the views of Dr Griffith and Dr Cassar. On this basis we are satisfied that, at present, Mr Sellick continues to suffer the effects of the aggravation of his degenerative spine condition and of the sprain of the interspinous ligament. We have taken into account that Mr Sellick continues to use the VSORT frame and continues to undertake the lifting associated with mail sorting and delivery. We accept the evidence of Dr Griffith and Dr Cassar that these duties are likely to continue to aggravate the conditions from which Mr Sellick suffers and to make the conditions symptomatic. … 86. The decision of Australia Post in matter A2004/376 made 27 October 2004 is set aside and in substitution it is decided that from 27 October 2004 up to and including the date of this decision, Mr Sellick has suffered and is suffering 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 on 25 October 2002. 13 Bennett J referred to the fact that the degenerative spinal condition was a pre-existing condition. She also referred to the findings of the AAT that the soft tissue injury to the right shoulder had resolved and concluded that reasons had not been given for the conclusion that Australia Post was nevertheless liable to pay compensation. Her Honour said (at [71]): 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]). (Emphasis added.) 14 Her Honour went on to say (at [72]): 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. 15 Her Honour's final conclusion with respect to this issue was stated (at [106]), as follows: With respect to the first reviewable decision the Tribunal failed to give reasons for its conclusion that the additional conditions were work-related and were related to the claimed injury and that Australia Post was liable for those additional injuries. That failure constitutes an error of law. 16 It was integral to her Honour's reasoning that Australia Post could not be liable to continue to pay compensation for an injury which had resolved. From that fundamental premise her Honour identified, as a specific error of law, a failure by the AAT to give reasons for its conclusion that Australia Post was liable by reference to either or both of the other two conditions it identified. 17 In its second decision delivered on 12 March 2009, after the matters had been remitted to it, the AAT concluded that her Honour had decided and ruled that the AAT did not have jurisdiction to direct the award of compensation with respect to additional conditions which were not the result of the injury which had been the subject of the claim. 18 The question concerning the shoulder injury which arises on the present appeal is whether the AAT was correct in law to regard itself as bound not to give further consideration to that claim. In my view, the AAT was legally bound in the way which it identified. Her Honour's ruling that the jurisdiction of the AAT was limited to a consideration of the consequences of an injury which was the subject of the claim (the shoulder injury) was a fundamental step towards her conclusion that reasons had not been given for, nevertheless, finding Australia Post to be liable. The identification, in her Honour's concluding remarks, that the specific error of law made by the AAT was its failure to give reasons, should be regarded as incorporating the legal elements which sustained that conclusion. In my view the challenge to the first part of the AAT decision must be dismissed.

The hernias 19 Bennett J found that the conclusion of the AAT, that Mr Sellick's hernias were due to lifting bins of mail weighing up to 25 kilograms, was not supported by any evidence. Her Honour also referred to the fact that an injury from lifting had not been the subject of any claim. Rather, Mr Sellick had attributed his hernias to his walking. She concluded (at [82]): 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. 20 In a context where the claim made was that the hernias were due to walking her Honour also found that a failure by the AAT to consider arguments by Australia Post (which denied that Mr Sellick suffered from hernias), that pain or difficulty while walking might be caused by osteoarthritis of his hip which was not work related, was a failure to consider an aspect of Australia Post's case. Accordingly her Honour said, (at [106]) in relation to this aspect of the case: In relation to the second reviewable decision the Tribunal failed to consider an aspect of Australia Post's case. Further, the Tribunal made a factual finding which formed the basis for its conclusions for which there was no evidence. Accordingly, the Tribunal's decision is affected by error of law and jurisdictional error. 21 When the matter came again before the AAT it dealt, on the merits, with Mr Sellick's claim to have suffered a compensable injury as a result of walking on his postal beat. It also considered arguments that lifting or carrying on his walking beat contributed to his medical condition. The AAT concluded (at [57]): Taking into account the views outlined above, we are not satisfied on the balance of probabilities that Mr Sellick's walking on the beat contributed to his suffering herniae. Further, we are not satisfied that any lifting or carrying done by Mr Sellick whilst walking was of sufficient weight to satisfy us that lifting or carrying contributed to the condition. 22 The AAT did not give further consideration to the matters which had earlier caused it to decide that Mr Sellick was entitled to compensation. It did not deal with any independent case that lifting, other than while walking, may have been the cause of Mr Sellick's condition. When the case resumed before the AAT, counsel for Mr Sellick disavowed any case based only on lifting, independently of walking. Rather the case based on walking was sought to be expanded to include the consequences of carrying depot bags while so doing. The AAT permitted such a case to be put. It rejected it on its merits. In the circumstances there is no error of law which arises from the way in which the hernia claim was dealt with. 23 There may be a real question whether the AAT is jurisdictionally confined by the particular description given by an employee of the cause of an otherwise compensable injury. Although it is necessary that an injury, in order to properly found a claim for compensation, arise out of or in the course of employment it may not be necessary, at least in every case, that absolute precision be supplied if it is otherwise clear that a sufficient connection with employment exists. I would not, without further consideration, endorse a suggestion that a claim that a medical condition was based on walking would exclude from consideration, in any jurisdictional sense, the possibility that the true explanation, supported by medical evidence, was that it was caused by lifting. However, it is not necessary to give further attention to that issue in the present case. The scope of the case which was advanced on Mr Sellick's behalf before the AAT, when the matters were remitted to it, was not determined, in this respect at least, by any ruling made by Bennett J but by forensic choices made at the beginning of the resumed case. As I have said, no error of law arises from that issue.

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Judgment (11 paragraphs)

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