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, MemberDate11 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…
Keep reading for free
Create a free CaseChat account to read KENWARD and JOHN HOLLAND PTY LTD and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2011] AATA 701
- Decision Date
CaseChat Overview and Summary
Orders
Orders of the court
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.