GENERAL ADMINISTRATIVE DIVISION ) Re ANDREW JOHN HOLMES Applicant And COMCARE Respondent
DECISION
Tribunal Associate Professor S D Hotop, Deputy President Dr D Weerasooriya, Member
Date10 April 2001
PlacePerth
Decision The Tribunal makes the following decisions: (1) Application No W1999/134 The Tribunal sets aside the decision under review and, in substitution therefor, decides that the respondent is liable under s14(1) of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") to pay compensation to the applicant in respect of the injury suffered by him on 8 September 1992 to his neck and his right upper limb (including the right shoulder), but that the respondent is not liable under s14(1) of the Act to pay compensation to the applicant in respect of his left upper limb, back and legs. (2) Application No W2000/238 The Tribunal affirms the decision under review.
...........(sgd S D Hotop)......... Deputy President CATCHWORDS COMPENSATION – Commonwealth employees – applicant employed in Commonwealth public service from 1981 to 1999 – applicant claimed compensation in May 1998 in respect of condition of his neck, shoulders, back, arms and legs – applicant first became aware of above conditions in September 1992 – applicant failed to give written notice of injuries to respondent prior to lodging compensation claim – whether notice in writing of injuries deemed to have been given to the respondent – whether respondent would thereby be prejudiced – whether respondent liable to pay compensation to applicant in respect of abovementioned conditions – whether each condition contributed to in a material degree by the applicant's Commonwealth employment – applicant claimed permanent impairment compensation in respect of neck, right shoulder and right arm conditions – whether impairment permanent – whether degree of "whole person impairment" 10% or more under Tables 9.4 and 9.6 in approved Guide – whether applicant "has difficulty with digital dexterity" Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 14(1), 24, 53 Guide to the Assessment of the Degree of Permanent Impairment Tables 9.4, 9.6 Comcare v Luck (1999) 29 AAR 403 Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534
REASONS FOR DECISION
10 April 2001 Associate Professor S D Hotop, Deputy President Dr D Weerasooriya, Member
This is an application by Andrew John Holmes ("the applicant") for review of the following reviewable decisions made by review officers of Comcare ("the respondent"):
a decision dated 19 February 1999 disallowing the applicant's claim for compensation under the Safety, Rehabilitation and Compensation Act1988 ("the Act") in respect of "soft tissue injury to neck, shoulders, back, arms and legs" (Application No W1999/134);
a decision dated 21 June 2000 disallowing the applicant's claim for permanent impairment compensation under the Act in respect of an injury to his neck, right shoulder, right arm and right forearm (Application No W2000/238).
At the hearing the applicant appeared in person without representation. The respondent was represented by Mr S Pilkinton of counsel.…
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.
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AGLC
Re Holmes and Comcare [2001] AATA 290
Case
[2001] AATA 290
Decision Date
CaseChat Overview and Summary
The case of Re Holmes and Comcare concerns the application of Mr Andrew John Holmes for compensation in respect of injuries sustained during his employment with the Commonwealth public service. Holmes claimed compensation in May 1998 for injuries to his neck, shoulders, back, arms, and legs, which he first became aware of in September 1992. The primary legal issues before the Tribunal were whether the respondent, Comcare, would be prejudiced if the notice of the injuries was deemed to have been given, whether Comcare was liable to pay compensation for the injuries, and whether each condition was contributed to in a material degree by Holmes' employment. Holmes also sought permanent impairment compensation for his neck, right shoulder, and right arm.
The Tribunal addressed these issues by examining the evidence and applying relevant sections of the Safety, Rehabilitation and Compensation Act 1988, as well as the Tables 9.4 and 9.6 from the Guide to the Assessment of the Degree of Permanent Impairment. The Tribunal determined that the degree of "whole person impairment" resulting from Holmes' injuries was 0%, according to the approved Tables. Consequently, Holmes was not entitled to compensation under section 24 of the Act. However, the Tribunal found Comcare liable to pay compensation for Holmes' injuries to his neck and right upper limb, but not for his left upper limb, back, and legs.
The Tribunal's decision was based on the evidence presented by Holmes, which outlined his employment history, the nature of his injuries, and the impact of these injuries on his ability to perform daily and work-related tasks. The Tribunal set aside the decision under review regarding the compensation for Holmes' neck and right upper limb injuries, while affirming the decision under review for his left upper limb, back, and legs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
The applicant tendered a document entitled "Summary of Evidence" (Exhibit A1) and he confirmed that, to the best of his knowledge, its contents were true and correct. The contents of that document are as follows:"Summary of EvidenceClaimant: Mr Andrew John HolmesDate of Birth: 31 July 1956Date of Injury: 8 September 1992Condition: Soft tissue injury to neck, shoulders, back, arms and legsHistoryMy full name is Andrew John Holmes and I was born on 31 July 1956 in Australia, and graduated from school in 1973.I commenced employment with the Commonwealth Public Service on 8 Jan 1981, and was made redundant as a result of major staff cutbacks in DEETYA/DETYA/DEWRSB on 31 Mar 1999. My Commonwealth employment consisted of employment with the Department of Defence from Jan 1981 to Aug 1992, then with DEET (which became DEETYA, then DEWRSB later) until Mar 1999.I was involved in a number of accidents as follows:1967 – Broke left elbow as a result of falling off a push bike on the way home from primary school.Approx. Oct 1972 – Broke right elbow as a result of falling off a push bike on the way to high school.Approx. March 1974 – Contusions to right knee as a result of motorcycle accident on way to university.1978 – Whiplash injury as a result of a motorcycle accident in 1978.1988 – Abrasions to left leg and hand as a result of a motorcycle accident in late 1988.21 March 1997 – Burns & cuts to left leg, strain to arms, shoulders, back and legs from motorcycle accident on my way to work at DEETYA.During my employment with the Commonwealth Public Service, I first started using computers in 1986. By around 1989, computers had become a major part of the work environment with all staff being required to do their own typing and most staff having their own PC. At that time, mouse use on the PCs was not significant as the PCs were using DOS based software.On moving to DEET in August 1992, I started using PCs running Windows based software, which required significant use of the mouse. Computers became a more major part of the work process so that by around 1993, most of the work was computer based, with mouse use integral with operating software.In 1992, DEET relocated its main office to the QV1 building and replaced all the existing desks with workstations. The main work surface was fixed and was 72 cm high. The desk had an adjustable section for the keyboard that could be lowered, but this did not allow for the mouse to be repositioned. The chairs were gas-lift adjustable, but could only adjust to give a maximum height of 50cm from the floor. Footstools were not routinely available.In around 1994 or 95 I started using the mouse with my left hand due to pain and discomfort in my right hand and arm.My duties were as a Clerical Officer. The work involved mostly computer-based tasks including input and manipulation of information on on-line recording systems, extensive report writing and editing, collection and analysis of data. The computerised systems and the software provided at DEET required considerable use of the mouse in interacting with the software.Details of ClaimI submitted a claim for compensation in May 1998 for the above conditions. It is my contention that the conditions relate to working conditions while employed with the Commonwealth. I consider that although ergonomic furniture was provided by my employer, this furniture was selected on the basis of aesthetics rather than functionality.As listed above, I have also been involved in a number of motor cycle accidents. Several of these occurred while travelling to or from my Commonwealth workplace.I am no longer employed by the Commonwealth and I am now employed on a casual basis. I have claimed compensation to cover any time off work and medical expenses.Details of DisabilityI am unable to perform any repetitive task for more than a few minutes with my right (dominant) hand/arm.For instance, even though I have been using the computer mouse with my left hand for around four years, I still have better control and precision with my right hand than with my left. Unfortunately, if I use the mouse with my right hand even for thirty minutes, pain in my arm and shoulder will flare and take some time to settle (often weeks).Some household activities affect my arm, such as vacuuming and hanging washing. This is not an exclusive list and such things as cleaning my teeth, sweeping floors, doing dishes, painting, mowing the lawn etc are all things that I have to do carefully and in small doses to avoid excessive pain. Even sleeping on my right side will cause problems with aching arm and shoulder.Similarly, a lot of work related activities cause me problems. Writing by hand is particularly troublesome, and I have to avoid periods of more than 5 to 10 minutes without substantial break. Keyboarding is more tolerable, but I still need to carefully manager the length of time spent and overall periods to avoid precipitating problems. As I have noted before using the mouse quickly stirs up pain. Filing papers causes pain as a result of the effort required in holding the papers and files as I work. Telephone work can be difficult unless I use a headset. Moving boxes, computers etc that I did a lot of (as a result of the constant re-locations and shuffling of staff) stirred up my arms, shoulders, neck and back.Driving a car causes arm and shoulder pain and I often have to rest my right arm in these circumstances. Similarly, riding a motorbike is uncomfortable, and I have modified the bikes I use to get the best position and added throttle stops to allow me to 'spell' my right hand.Using public transport is not much better unless I can arrange to carry nothing (which usually is not possible) as carrying a briefcase or using a shoulder bag causes pain in my arms, shoulders and neck.I am definitely unable to do any manual labour type work, as although I am reasonably strong, any extended periods of repetitive activity will cause considerable pain which will usually take some weeks to settle.To summarise my physical complaints:My use of my dominant hand for repetitive work is reduced to short periods or not at all. I am unable to work normally in the clerical and administrative positions for which I am qualified and experienced.I am severely limited in my ability to work for long periods and under pressure which is a normal requirement of most positions. (including all of the ones I occupied in the Public Service). I am not able to look at work in manual areas. I suffer some degree of pain most of the time, varying from a vague ache to severe constant pain depending on the levels and types of activity I have been doing. I have to consider avoiding aggravation to my arm/shoulder in almost all things I do."
Decision
Reasons for decision
The Tribunal finds, therefore, that the degree of "whole person impairment" of the applicant resulting from the relevant injury to his cervical spine and right upper limb is, in accordance with Tables 9.6 and 9.4 respectively, 0%. It follows, by reason of s24(7) of the Act, that an amount of compensation is not payable to the applicant under s24 of the Act.Decision For the above reasons the Tribunal makes the following decisions:(1) Application No W1999/134The Tribunal sets aside the decision under review and, in substitution therefor, decides that the respondent is liable under s14(1) of the Act to pay compensation to the applicant in respect of the injury suffered by him on 8 September 1992 to his neck and his right upper limb (including the right shoulder), but that the respondent is not liable under s14(1) of the Act to pay compensation to the applicant in respect of his left upper limb, back and legs.(2) Application No W2000/238The Tribunal affirms the decision under review.