John Irwin and K & S Freighters Pty Limited - [2014] AATA 840

[2014] AATA 840

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2012/5586

Re

John Irwin

APPLICANT

And

K & S Freighters Pty Limited

RESPONDENT

DECISION

Tribunal
Egon Fice, Senior Member

Date 7 November 2014

Place Melbourne
1. The Tribunal sets aside the reviewable decision of the Respondent and in substitution decides that the Respondent is liable to pay compensation in accordance with the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) in respect of the Applicant’s claimed injury to the right shoulder.
2. The Tribunal remits the matter to the Respondent for the purpose of calculating the cost of reasonable medical treatment of the Applicant pursuant to s. 16 of the SRC Act and the calculation of compensation to which the Applicant may be entitled under s. 19.
3. The Respondent must pay the Applicant’s costs and disbursements incurred in this proceeding in accordance with s. 67 the SRC Act.
........[sgd Egon Fice]............................................................
Egon Fice, Senior Member
COMPENSATION - Injury simpliciter - right rotator cuff tendinitis - injury or aggravation of injury - delayed report of injury - treatment prior to claim - apparent inconsistent evidence - Jones v Dunkel inference - decision set aside and remitted.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 14, 16, 19, 62, 64, 67
CASES
Jones v Dunkel (1959) 101 CLR 298
Kumar and Minister for Immigration and Citizenship (2009) 107 ALD 178
R v Lao (2002) 5 VR 129
REASONS FOR DECISION
Egon Fice, Senior Member
7 November 2014

Mr John Irwin was employed by K & S Freighters Pty Ltd (K & S Freighters) as a truck driver. He commenced employment on 10 October 2011 as a casual employee and later was offered a full time permanent position as a shuttle driver. On 23 March 2012 Mr Irwin reported to the Fleet Controller that he had a sore right shoulder. He did not complete an incident report because he was uncertain about whether the pain was work‑related. He attended a physiotherapist for a period of some seven weeks before being advised that he may have suffered a work injury. He then lodged an Incident Report Form on 11 May 2012.
Following investigation of Mr Irwin’s claim, in a letter dated 18 September, 2012 K & S Freighters informed Mr Irwin that it had determined it was not liable to pay compensation to him pursuant to s. 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) in respect of right rotator cuff tendinitis sustained on 23 March 2014.
On 26 September 2012 Maurice Blackburn Lawyers, acting on behalf of Mr Irwin, requested that K & S Freighters reconsider its decision made on 18 September 2012 pursuant to s. 62 the SRC Act. Following reconsideration, K & S Freighters informed Mr Irwin in an undated letter that the determination made on 18 September 2012 was affirmed. On 11 December 2012 Mr Irwin lodged an application with the Tribunal in accordance with s. 64 of the SRC Act seeking…

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 John Irwin and K & S Freighters Pty Limited

Details

AGLC: John Irwin and K & S Freighters Pty Limited [2014] AATA 840
Case: [2014] AATA 840
Decision Date: 7 November 2014

CaseChat Overview and Summary

In the case of John Irwin and K & S Freighters Pty Limited, the worker, John Irwin, claimed that he suffered an injury in the course of his employment with K & S Freighters. The dispute centred on whether the injury was caused by an aggravation of a pre-existing condition, specifically acromioclavicular joint degenerative arthritis, as a result of his employment activities. The matter was determined by the court based on medical evidence and the circumstances surrounding the incident.

The primary legal issue before the court was whether the injury Mr Irwin claimed to have suffered was caused by or contributed to by his employment with K & S Freighters. The court had to assess the credibility of Mr Irwin's account of the injury, the medical evidence presented, and the working conditions at the company. The court needed to decide if the injury or the aggravation of a pre-existing condition was indeed caused by or contributed to by his employment activities.

The court found that Mr Irwin's account of the injury was credible and consistent with the medical evidence, particularly the report from Mr Khan. The court placed significant weight on the evidence that the injury was consistent with the working conditions and employment with K & S Freighters. The photographs of the trailer and the work conditions supported Mr Irwin's description of the difficulties he experienced. The court concluded that Mr Irwin suffered an injury to his right shoulder, or an aggravation of a pre-existing condition, that arose out of or in the course of his employment. The court determined that neither the injury nor the aggravation was a result of reasonable administrative action taken by the employer.

The final order of the court was that K & S Freighters was liable for the injury or aggravation suffered by Mr Irwin, and that Mr Irwin was entitled to compensation for the incapacity resulting from his employment-related injury.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The medical reports to which I have referred above, particularly that of Mr Khan, set out clearly the injury which Mr Irwin claimed he suffered in the course of his employment. In case there is any outstanding question about whether his injury was caused by using an axe some weeks prior to the date on which he claimed the injury occurred, I would find that Mr Irwin suffered an aggravation of a physical injury and that the aggravation arose out of or in the course of his employment with K & S Freighters. Furthermore, if the cause of the pain and incapacity experienced by Mr Irwin was the result of an aggravation of a pre-existing condition, namely acromioclavicular joint degenerative arthritis, I would find the evidence supports Mr Irwin’s contention that the aggravation was contributed to, to a significant degree, by his employment with K & S Freighters.CONCLUSIONS Despite K & S Freighters’ contentions regarding the circumstances surrounding the injury Mr Irwin claimed he suffered on 22 March 2012, I have found, on the balance of probabilities, that his account of those circumstances should be accepted. There is nothing about those circumstances, including his description of the pain he said he felt at the time he claimed the injury occurred, or the reference in Mr Hor’s clinical notes to use of the axe, which would cause me to find otherwise. In particular, I have placed substantial weight on Mr Khan’s report where he stated that the injury sustained by Mr Irwin as claimed was consistent with the working conditions and employment with K & S Freighters. I have combined the evidence of Mr Irwin with the photographs of a typical trailer with gates and curtains which I had in evidence. I have found that the evidence Mr Irwin gave about the difficulties he experienced in moving the steel gates and the large heavy plastic curtain is clearly supported by those photographs. On any view, it is an unsatisfactory system for restraining the trailer load and, no doubt, the reason why K & S Freighters was in the process of refurbishing those trailers to adopt a different retainment system. Significantly, the photographs disclose that such difficult work had to be conducted with the arms above shoulder height. I find, on the balance of probabilities, that Mr Irwin suffered an injury to his right shoulder being an injury which arose out of, or in the course of, his employment with K & S Freighters. That injury resulted in an incapacity for work. Alternatively, I find that Mr Irwin suffered aggravation of a physical injury to his right shoulder being an aggravation which arose out of or in the course of his employment with K & S Freighters. Neither the injury nor aggravation was suffered as a result of reasonable administrative action. If it were the case that Mr Irwin suffered from acromioclavicular joint degenerative arthritis prior to the claimed incident on 22 March 2012, I would find that Mr Irwin suffered aggravation of that ailment and that the aggravation was contributed to, to a significant degree, by his employment with K & S Freighters.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/5586
Re	John Irwin
APPLICANT
And	K & S Freighters Pty Limited
RESPONDENT

Tribunal	Egon Fice, Senior Member
Date	7 November 2014
Place	Melbourne