2 June 2021: Compo win against Australia Post- re-instatement of liability

Angela Sdrinis Legal recently successfully ran a case against Australia Post with the worker winning re-instatement of liability before the Tribunal: Vros and Australian Postal Corporation (Compensation) [2021] AATA 791 (8 April 2021).  Re-instatement of liability under Section 14 of the Saftey, Rehabilitation and Comprensation Act 1988 (Cth). 

Ms Vros suffered injury to her left knee in April 2015, which was initially accepted by Australia Post. Australia Post then determined on 17 September 2018, that Ms Vros then had no present entitlement under the Act for incapacity for work or medical treatment cost compensation with respect to the accepted condition. The Tribunal ultimately found that Ms Vros is to be considered to have been on 17 September 2018, and to be currently, continuing to suffer the effects of her left knee injury.

Whilst the decision was based on the facts of the case, there were interesting conclusions drawn upon particular issues in the case, relating to:

  • pre-existing degenerative condition
  • injury aggravated pre-existing condition
  • injury materially contributes to incapacity and impairment

The issue of contention relating to ongoing liability in respect of the knee condition before Senior Member C. J. Furnell was in regard to whether the effects and symptoms associated with Ms Vros’ left knee condition are solely or predominantly attributable to the natural progression of osteoarthritis in association with constitutional factors irrelevant to her employment (such as her age, genetics, obesity and abnormal anatomical alignment).

Ms Vros submitted that the accepted condition caused her left knee osteoarthritis to become symptomatic and to progress at a rate faster than it would otherwise. Consequently, it may properly be concluded that the accepted condition has resulted in the incapacity for work and impairment caused by the effects and symptoms associated with her left knee osteoarthritis.

Senior Member C. J. Furnell found that, where a person has been incapacitated for work because an injury has aggravated an underlying condition, any award of compensation “…is not terminable because that incapacity would in any case have been the end result of the pre-existing disease.”[1] Where an aggravation of a disease results in incapacity and provided that the effect of the aggravation continues[2] “…it is beside the point to say that if the aggravation had not occurred total incapacity or death would at some later time have resulted from the natural progress of the disease.”

Senior Member C. J. Furnell found that the left knee injury aggravated Ms Vros’ osteoarthritis in the sense of making it worse (rather than simply the osteoarthritis having become worse).[3] By causing her osteoarthritis to become and remain symptomatic to an extent sufficient to result in incapacity[4] and impairment, it has been “an effective and operative cause” of, or a “material contributor” to, the incapacity and impairment which Ms Vros suffers from in connection with, and her need for medical treatment in relation to, that osteoarthritis.

Senior Member C. J. Furnell rejected the contention that it is necessary that the accepted condition have made a significant contribution to Ms Vros’ incapacity for work, impairment and need for medical treatment. The Decision of Senior Member C. J. Furnell finding that it is sufficient if the accepted condition continues as an “effective and operative” cause of, or is a material contributor to, that incapacity, impairment and need.

The case is helpful in the analysis as to the causative threshold required of an accepted injury causing incapacity for work, impairment and need for medical treatment to find present, and ongoing liability for a related condition, as opposed to the contribution identified by non-work-related pre-existing and constitutional factors.

By Jonathan De Biase
Solicitor at Angela Sdrinis Legal 

[1] Darling Island Stevedoring v Hankinson (1967) 117 CLR 19 at 26-27 per Barwick CJ. See also Martin v Australian Postal Corp [1999] FCA 655.

[2] Cf Casarotto v Australian Postal Commission [1989] FCA 116 which dealt with short lived or trivial effects of work-place incidents on an underlying condition. See Re Commonwealth Banking Corporation v Raymond William Percival [1988] FCA 240 at [27] – “… it is to be inferred from the whole of the Tribunal's reasoning that the Tribunal was not satisfied that there was any relevant continuing aggravation of Mr Percival's condition after his retirement. Such a finding was essential if the Tribunal was to hold that Mr Percival had a compensable incapacity for work.”

[3] Ogden Industries Pty Limited v Lucas (1967) 116 CLR 537 at 593 per Windeyer J.

[4] See, for example, Caldipp v Delov [2002] FCAFC 352 where Higgins J, addressing legislation analogous to the Act, stated at [74] that “The point is that it is only necessary that the employment aggravates the symptoms of the underlying disease to the point where those symptoms cause incapacity.”

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