Bowden and Telstra Corporation Ltd - [2011] AATA 320

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 320
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/0221

GENERAL ADMINISTRATIVE DIVISION )

Re Kane Bowden

Applicant

And

Telstra Corporation Limited

Respondent

DECISION

Tribunal J W Constance, Deputy President
Date13 May 2011
PlaceMelbourne

Decision
1.     The reviewable decision of the Respondent made 5 November 2009 is set aside.

2.     In substitution for the decision set aside it is decided that:

1)    on 29 July 2009 the Applicant suffered an injury to his left shoulder being an aggravation of a pre-existing condition of the shoulder;

2)    continuously since 27 August 2009 and at the date of this decision the Applicant has been totally incapacitated for work as a result of the injury;

3) the Respondent is liable to pay compensation to the Applicant in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of the injury.

3.     Within 14 days of the date of this decision each party may apply to the Tribunal for directions in relation to costs. Should such an application not be made the Respondent shall pay the costs of the proceedings incurred by the Applicant.

.......(sgd J W Constance).......
Deputy President

SAFETY, REHABILITATION AND COMPENSATION ACT 1988 (Cth) - Compensation - Shoulder injury - Aggravation of pre-existing injury arising out of employment - Causal connection between injury and employment - Total incapacitation for work - Decision under review set aside
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A(1), 6, 14(1) and 14(3)
Veterans’ Entitlements Act 1986 (Cth)
Military Rehabilitation & Compensation Commission v Roberts [2007] FCA 1
Re Cutajar and Commonwealth of Australia (1985) 8 ALN N76
Repatriation Commission v Law (1980) 47 FLR 57
Repatriation Commission v Law (1980-81)147 CLR 635
Roncevich v Repatriation Commission [2005] HCA 40
Tarry v Warringah Shire Council [1974] WCR 1
REASONS FOR DECISION
13 May 2011  J W Constance, Deputy President
INTRODUCTION
1.      Since 2007 Mr Bowden has been employed by Telstra.
2.      In 2000 Mr Bowden injured his left shoulder. He claims that in 2009 he suffered an aggravation of this injury and that the aggravation arose from his employment. He says that Telstra is liable to compensate him in respect of the aggravation injury in accordance with the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
3.      Telstra has decided that it is not liable to compensate Mr Bowden. Mr Bowden has applied to the Tribunal for a review of Telstra’s decision.
4.      For the reasons which follow I have decided that Telstra is liable to pay compensation to Mr Bowden in respect of the injury.
EVIDENCE AND FINDINGS OF FACT
5.      Unless otherwise indicated the following findings of fact are based on the evidence of Mr Bowden. I am satisfied that he was an honest witness and that he gave his evidence to the best of his recollection. I am satisfied of the facts found on the balance of probabilities.
6.      Mr Bowden enlisted in the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bowden and Telstra Corporation Ltd

Details

AGLC: Bowden and Telstra Corporation Ltd [2011] AATA 320
Case: [2011] AATA 320
Decision Date: 13 May 2011

CaseChat Overview and Summary

In the case of Bowden against Telstra Corporation Ltd, the applicant, Bowden, sought a review of a decision made by Telstra on 5 November 2009, regarding his eligibility for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth). Bowden claimed that he had suffered an injury to his left shoulder on 29 July 2009, which was an aggravation of a pre-existing condition, and that this injury had rendered him totally incapacitated for work since 27 August 2009. The dispute centred on whether Telstra was liable to compensate Bowden for the injury, and if so, to what extent.

The central legal issues the court needed to address were whether the injury Bowden suffered was causally connected to his employment, and whether the injury resulted in total incapacitation for work. Specifically, the court had to determine if the injury Bowden experienced was an aggravation of a pre-existing condition arising out of his employment, and if it led to a total incapacity for work as claimed.

The court reviewed Telstra's decision and found it to be flawed. It concluded that Bowden had indeed suffered an injury to his left shoulder on 29 July 2009, which was an aggravation of a pre-existing condition, and that this injury resulted in total incapacitation for work continuously since 27 August 2009. The court found Telstra liable to compensate Bowden in accordance with the Act. Consequently, the decision of Telstra was set aside, and it was ordered that Telstra pay compensation to Bowden for the injury sustained.

Orders

Orders of the court

1. The reviewable decision of the Respondent made 5 November 2009 is set aside.

2. In substitution for the decision set aside it is decided that:

1) on 29 July 2009 the Applicant suffered an injury to his left shoulder being an aggravation of a pre-existing condition of the shoulder;

2) continuously since 27 August 2009 and at the date of this decision the Applicant has been totally incapacitated for work as a result of the injury;

3) the Respondent is liable to pay compensation to the Applicant in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of the injury.

3. Within 14 days of the date of this decision each party may apply to the Tribunal for directions in relation to costs. Should such an application not be made the Respondent shall pay the costs of the proceedings incurred by the Applicant.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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