Tribunal affirms decision to cease compensation to Australia Post employee for 1993 work injury
Date: September 17, 2021
Hickey and Australian Postal Corporation  AATA 1521 (20 May 2021).
- The Tribunal was asked to consider ongoing liability to pay compensation to an Australia Post employee in respect of a lower back injury sustained in 1993.
- Australia Post produced evidence that the worker would have recovered within three months after the initial work incident.
- The Tribunal found that the injury had resolved and affirmed the decision under review.
Mr Hickey is employed by Australia Post as a Postal Transport Officer. On 29 September 1993 he submitted a claim for workers’ compensation after an injury to the left side of his lower back, sustained on 27 September 1993. It occurred when he pulled a hanging mailbag from a post box.
On 18 October 1993, Australia Post accepted liability to pay compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) in respect of “facet joint irritation”. The description of injury was later amended to “L5/S1 disc prolapse on the left and a [sequelae] of soft tissue injury (R) foot”.
On 15 January 2015, Australia Post issued a determination which found it had no present liability to pay compensation for medical treatment under section 16 of the SRC Act and incapacity to work under section 19 of the SRC Act, in respect of “L5-S1 disc prolapse on the left with a [sequelae] of soft tissue injury right foot” sustained on 27 September 1993, on the basis that Mr Hickey was no longer suffering from the compensable condition.
Mr Hickey requested a reconsideration of the determination and, on 30 June 2015, a delegate of Australia Post affirmed the determination. Mr Hickey sought further review of that decision at the Administrative Appeals Tribunal.
The Tribunal was required to consider whether Mr Hickey continued to suffer from the accepted lower back and right foot injury. If so, the Tribunal was also required to consider whether he was entitled to compensation for medical treatment and incapacity to work in respect of that condition.
Section 16(1) of the SRC Act provides that an employer is liable to pay compensation in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances).
Section 19(1) of the SRC Act provides that an employer is liable to pay compensation to an employee in respect of an injury, for each week the employee is incapacitated for work.
Telstra Corporation Limited v Hannaford (2006) 151 FCR 253 is authority for the proposition that a decision maker may make findings of fact inconsistent with an earlier decision accepting liability for an injury, without disturbing that original decision.
Mr Hickey argued that the lower back and right leg injury sustained at work in 1993 continued and he submitted that it resulted in an ongoing requirement for medical treatment and incapacity for work. Mr Hickey relied on the expert medical evidence of Orthopaedic Surgeons Dr Barrie Slinger and Dr Desmond Williams.
Dr Slinger diagnosed Mr Hickey with degenerative disc disease as a result of the work incident. Although he acknowledged that some of Mr Hickey’s symptoms were due to progressive degenerative change, he considered that the pathology was due to the work incident. Dr Williams gave evidence that Mr Hickey suffered a disc protrusion as a result of the work incident, which has not resolved.
Australia Post argued that Mr Hickey sustained a minor injury on 27 September 1993 which ought to have resolved within months of the incident and as such, Mr Hickey no longer suffered from the effects of the compensable condition. Australia Post relied on the expert medical evidence of Orthopaedic Surgeons Dr Michael Alexeef and Dr Frederick Phillips, as well as surveillance footage in which Mr Hickey was observed undertaking physical activity including pushing a wheelbarrow containing concrete and driving.
Dr Alexeeff provided evidence that Mr Hickey’s symptoms would have resolved shortly after the 27 September 1993 work incident. Dr Alexeef’s view was that Mr Hickey’s ongoing symptoms were related to the progressive nature of mechanical lower back pain rather than any disc pathology. Dr Phillips’ evidence was that Mr Hickey suffered an acute strain injury as well as some minor irritation of the S1 nerve root during the work incident, which would have resolved in around three months.
The Tribunal accepted the evidence of Dr Alexeeff and Dr Phillips and found that Mr Hickey sustained a work related injury on 27 September 1993, which may or may not have been a discogenic injury at the L5/S1 level, the effects of which ceased by the mid to late 1990s. The Tribunal found that, as at 15 January 2015, Mr Hickey no longer suffered from the work-related injury sustained on 27 September 1993.
The Tribunal was not satisfied that Mr Hickey had actually suffered a disc prolapse at the L5/S1 level during the work incident in 1993. The Tribunal applied Hannaford and held that the 1993 determination which accepted liability for Mr Hickey’s condition remained in force. Accordingly, its finding only affected Mr Hickey’s entitlements from 15 January 2015.
The Tribunal affirmed the decision under review.
Entitlements to medical expenses and incapacity payments under sections 16 and 19 of the SRC Act may be discontinued if it is found, based on expert medical evidence, that the compensable condition has resolved. Hannaford is authority for the proposition that a decision-maker may make findings of fact inconsistent with a previous decision to accept liability, without the need to revisit that decision.
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