Federal Court upholds no present liability decision for postal workers’ 1993 injury
Date: May 15, 2023
Hickey v Australian Postal Corporation  FCA 57
- The Federal Court was asked to decide whether the Administrative Appeals Tribunal erred in finding that Australia Post had no present liability to pay compensation to Mr Hickey for medical treatment and incapacity for work.
- The Federal Court dismissed the appeal with costs.
Mr Hickey was employed as a Postal Transport Officer by Australian Postal Corporation (Australia Post). On 29 September 1993, he lodged a claim for workers’ compensation in respect of a lower back injury. Liability for his claim was accepted pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act).
On 18 March 2014, Mr Hickey was examined by Dr Michael Alexeeff (Orthopaedic Surgeon) at the request of Australia Post. Dr Alexeeff concluded that Mr Hickey’s radicular symptoms had settled around the time he returned to work in August 1995, and that his status did not reflect a radicular presentation. On 15 January 2015, Australia Post determined that there was no present liability to pay compensation to Mr Hickey pursuant to sections 16 and 19 of the SRC Act on the basis of Dr Alexeeff’s report. Australia Post affirmed the determination on reconsideration and Mr Hickey sought review of that decision at the Administrative Appeals Tribunal.
By decision dated 20 May 2021, the Tribunal affirmed the decision under review. Mr Hickey appealed that decision to the Federal Court. The grounds of appeal included:
- The Tribunal erred in law in raising the standard of proof by which he was required to prove the facts at issue, in particular, that he sustained a disc protrusion at the L5/S1 level in the work incident on 27 September 1993, and that the effect of that injury had continued;
- The Tribunal made a jurisdictional error because it failed to give adequate reasons in deciding that Mr Hickey had ceased to suffer from his compensable injury; and
- The Tribunal erred in law by not applying the correct test to determine whether Mr Hickey’s incapacity for work or need of medical treatment resulted from the injury.
Pursuant to section 16 of the SRC Act, where an employee suffers an injury, the employer is liable to pay for the cost of medical treatment obtained in relation to the injury, being treatment that was reasonable to obtain in the circumstances.
Section 19 of the SRC Act provides that where an employee is incapacitated for work as a result of an injury, the employer is liable to pay compensation for incapacity for work.
Ground 1 – wrong standard of proof
Mr Hickey contended that in accepting Dr Frederick Phillips’ (Orthopaedic Surgeon) opinion, the Tribunal adopted a requirement that he prove with “medical certainty” that he suffered the injury, and/or that any incapacity and need for medical treatment resulted from the injury, in circumstances where the only requirement was that he establish on the balance of probabilities that the injury sustained on 27 September 1993 resulted in an incapacity for work and the need for medical treatment.
Burley J considered that nothing in the language of the Tribunal’s findings of fact supported the view that it imposed a standard of fact finding above the balance of probabilities. In accepting the evidence of Mr Phillips, the Tribunal did not raise the onus to one approaching scientific or medical certainty. Rather, the reasons indicated that it was providing an analytical basis for preferring the approach of Mr Phillips to that of the medical practitioners called by Mr Hickey.
Accordingly, Burley J found that ground 1 was not established.
Ground 2 – Failure to give adequate reasons
Mr Hickey identified five separate errors arising from the reasons of the Tribunal to show that the Tribunal failed to meaningfully engage with the substance of competing expert opinions, the consideration of which he submitted was decisive. In his oral submissions, Mr Hickey more generally contended that the Tribunal failed to perform its fundamental task of explaining how it was that Mr Hickey was unsuccessful in his case, particularly having regard to the evidence concerning the symptoms of pain experienced by Mr Hickey in contrast to the way in which the evidence of Dr Phillips was treated.
Burley J considered that whilst the Tribunal could have expressed itself more clearly and provided explicit cross references to the materials, it was apparent enough how it reasoned to its conclusion. Burley J stated that contrary to the submission advanced by Mr Hickey, there was no need for the Tribunal to reconcile the evidence of symptoms given by Mr Hickey and the findings of Dr Phillips, and that the Tribunal’s conclusion was sufficiently clear to enable Mr Hickey to understand how the Tribunal arrived at its conclusion. In relation to the five specific instances that Mr Hickey criticised in his submission, Burley J was not satisfied that ground 2 of the appeal was made out.
Ground 3 – incorrect test
Mr Hickey contended that the Tribunal only determined that his condition ought to have resolved, without finding the nature of the injury and without determining whether his incapacity for work and need for treatment resulted from the injury suffered on 27 September 1993.
Burley J did not agree that the Tribunal fell into the error for which Mr Hickey contended. The existence of an entitlement to compensation under sections 16 and 19 of the SRC Act is conditioned by an entitlement to compensation pursuant to section 14. The Tribunal addressed its attention to whether or not there was an “injury” that was relevantly current as at 15 January 2015. It was not necessary for that purpose to determine whether there had ever been an injury in the form of the disc prolapse, but whether there was, or remained, a causal connection between the alleged injury and the symptoms reported. The Tribunal determined that there was not.
Accordingly, the appeal was dismissed with costs.
The decision confirms that liability to pay compensation may be ceased in circumstances when the compensable condition is no longer sufficiently connected to employment.
Lauren Bishop, Solicitor, HBA legal | email@example.com | Direct: +61 8 9265 6012
Claire Tota, Partner, HBA Legal | firstname.lastname@example.org | Direct: +61 8 9265 6011
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