Joaquim and Comcare

Case [2007] AATA 1250


Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1250

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          Nos    S 200500018 and
GENERAL ADMINISTRATIVE DIVISION        )  S 200600331

Re JOSE JOAQUIM

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Deputy President D G Jarvis

Date23 April 2007

PlaceAdelaide

Decision

1.        The tribunal affirms the decision under review made on 23 December 2005 to the effect that the injury to the applicant’s right shoulder was not the result of his ruptured biceps.

2.        The tribunal sets aside the decision under review made on 18 September 2006 to the effect that the respondent was not liable for the injury to the applicant’s right shoulder, and in place of that decision, decides that the respondent is liable for the rotator cuff tendonitis and impingement syndrome of the applicant’s right shoulder.

3.        The tribunal affirms the further decision under review made on 18 September 2006 that the respondent is not liable to pay compensation in respect of permanent impairment of the applicant’s right shoulder, on the grounds that the injury to the applicant’s right shoulder has not resulted at present in a permanent impairment.

4.        The tribunal reserves the question of costs for further consideration.

D G Jarvis
  (Signed)

Deputy President

CATCHWORDS

WORKERS’ COMPENSATION - Commonwealth employees - applicant engaged in heavy repetitive manual work - rupture of biceps tendon - agreed assessment of permanent impairment resulting from ruptured biceps - applicant now suffering from rotator cuff tendonitis and impingement syndrome - subsequent claim for these rotator cuff conditions - x-ray revealed hooked acromion - applicant susceptible to injury from effects of heavy work - employment caused onset of degenerative rotator cuff conditions - rehabilitative treatment will not restore applicant to pre-injury condition - inquisitorial role of the tribunal - applicant has not undertaken all reasonable rehabilitative treatment - meaning of “reasonable rehabilitative treatment” - meaning of “contributed to in a material degree” - decision that rotator cuff conditions not the result of ruptured biceps affirmed - decision to reject alternative claim that rotator cuff conditions not contributed to in a material degree by applicant’s employment set aside - decision to reject claim for permanent impairment affirmed.

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5, 14 and 24(2)(c)

Australian Postal Corporation v Burch (1998) 85 FCR 264

Benjamin v Repatriation Commission (2001) 70 ALD 622

Comcare v Canute (2005) 148 FCR 232

Comcare v Filla (2002) 115 FCR 163

Comcare v Sahu-Khan [2007] FCA 15

Commonwealth v Smith (1989) 18 ALD 224

Dragojlovic v Director-General of Social Security (1984) 1 FCR 301

Murray v Shillingsworth [2006] NSW CA 367

Re Welsford and Commonwealth Banking Corporation (1984) 1 AAR 42

Suters v Australian Postal Corporation (1992) 28 ALD 320

Treloar v Australian Telecommunications Commission (1990) 26 FCR 316

Wiegand v Comcare Australia (2002) 72 ALD 795

Wiegand v Comcare Australia (No. 2) [2007] FCA 237

Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310

REASONS FOR DECISION

23 April 2007   Deputy President D…

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Details
AGLC
Joaquim and Comcare [2007] AATA 1250
Case
[2007] AATA 1250
Decision Date

CaseChat Overview and Summary

The case of Joaquim against Comcare involved a dispute concerning a Commonwealth employee who suffered a rupture of the biceps tendon in his right shoulder while engaged in heavy repetitive manual work. Joaquim subsequently claimed that his employment contributed to the onset of rotator cuff tendonitis and impingement syndrome in the same shoulder. The case was heard by the Administrative Appeals Tribunal, which was required to determine the extent of Comcare's liability for the rotator cuff conditions and Joaquim's entitlement to compensation for any resulting permanent impairment.

The legal issues at the heart of the case centred on the interpretation of the Safety, Rehabilitation and Compensation Act 1988 (Cth), particularly sections 5, 14 and 24(2)(c). The tribunal was tasked with deciding whether the rotator cuff conditions were a result of the ruptured biceps or were instead attributable to Joaquim's employment. It was also required to assess whether Joaquim had undertaken all reasonable rehabilitative treatment and whether his employment had contributed to his conditions in a material degree. Furthermore, the tribunal needed to determine if the rotator cuff conditions had resulted in permanent impairment.

The tribunal began by affirming the earlier decision that the rotator cuff conditions were not a result of the ruptured biceps tendon. However, it set aside the decision that Comcare was not liable for the rotator cuff conditions, ruling instead that Comcare was liable for Joaquim's rotator cuff tendonitis and impingement syndrome. The tribunal held that the evidence showed that Joaquim's employment had caused the onset of these degenerative conditions. The tribunal also affirmed the decision that Comcare was not liable to pay compensation for permanent impairment, as at the time of the decision, Joaquim's shoulder had not resulted in a permanent impairment.

The tribunal reserved the question of costs for further consideration. This decision underscores the importance of detailed evidence and interpretation of statutory provisions in determining the liability of employers under workers’ compensation law, and highlights the tribunal's role in ensuring that employees receive appropriate compensation for work-related injuries.

Orders

Orders of the court

1. The tribunal affirms the decision under review made on 23 December 2005 to the effect that the injury to the applicant’s right shoulder was not the result of his ruptured biceps.

2. The tribunal sets aside the decision under review made on 18 September 2006 to the effect that the respondent was not liable for the injury to the applicant’s right shoulder, and in place of that decision, decides that the respondent is liable for the rotator cuff tendonitis and impingement syndrome of the applicant’s right shoulder.

3. The tribunal affirms the further decision under review made on 18 September 2006 that the respondent is not liable to pay compensation in respect of permanent impairment of the applicant’s right shoulder, on the grounds that the injury to the applicant’s right shoulder has not resulted at present in a permanent impairment.

4. The tribunal reserves the question of costs for further consideration.

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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