KENWARD and JOHN HOLLAND PTY LTD

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 701

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/2240

GENERAL ADMINISTRATIVE DIVISION		)
Re		WILLIAM KENWARD

Applicant

And JOHN  HOLLAND PTY LTD

Respondent

DECISION

Tribunal Mr R G Kenny, Senior Member and
Dr G Maynard, RFD, Member  

Date11 October 2011

PlaceBrisbane

Decision

The Tribunal sets aside the decision under review and substitutes its decision that:

(a) under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), the respondent is liable to provide rehabilitation and to pay compensation to the applicant for incapacity for work or impairment from the aggravation, as set out in paragraph 52 of these reasons, of his right supraspinatous tendonitis/subacromial bursitis and mild right acromioclavicular joint synovitis; and
(b)     costs are payable to the applicant in accordance with the Tribunal’s general practice direction.

................[Sgd]........................

Senior Member

5A      Definition of injury

(1)       In this Act:

injury means:

(a)       a disease suffered by an employee; or

(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

(c)       ...

but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

(2)...

5B      Definition of disease

(1)       In this Act:

disease means:

(a)       an ailment suffered by an employee; or

(b)       an aggravation of such an ailment;

that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:

(a)       the duration of the employment;

(b)       the nature of, and particular tasks involved in, the employment;

(c)any predisposition of the employee to the ailment or aggravation;

(d)       any activities of the employee not related to the employment;

(e)       any other matters affecting the employee’s health.

This subsection does not limit the matters that may be taken into account.

(3)       In this Act:

significant degree means a degree that is substantially more than material.

4. An issue for the Tribunal is the timing of the onset of Mr Kenward’s shoulder condition. To that end, s 7(4) of the Act reads:

(4)For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:

(a)the employee first sought medical treatment for the disease, or aggravation; or

(b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;

whichever happens first.

5.      For the purposes of that provision, Mr Wiltshire submitted that the date of onset was 2 February 2009, when Mr Kenward made a complaint to the respondent’s safety officer; or, alternatively, on 8 September 2009, when…