Ditchburn and Comcare

[2003] AATA 450

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 450

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/41

GENERAL ADMINISTRATIVE DIVISION		)
Re		BARRY DITCHBURN

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr R G Kenny, Member

Date20 May 2003

PlaceBrisbane

Decision

The Tribunal varies the decision under review in that the Tribunal decides that the applicant has complied with the notice requirements under section 53 of the Safety, Rehabilitation and Compensation Act 1988.

The Tribunal further directs that this matter be listed for hearing on the substantive issues on a date to be fixed following preliminary conferencing by a Conference Registrar.

....................(Sgd).....................

R G Kenny
  Member

CATCHWORDS

WORKER’S COMPENSATION – injury alleged during military service –– whether notice of injury given as soon as practicable after becoming aware of the injury – meaning of injury

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 53

Comcare v Luck (1999) 29 AAR 403
Re Deveson and Comcare [1999] AATA 80

REASONS FOR DECISION

16 May 2003 Mr R G Kenny, Member     

Background

1.      On 17 October 2001, Barry Ditchburn (the applicant) completed a “Claim for Rehabilitation and Compensation” for injuries which he described as “spinal damage due to excessive G force whilst flying”.

2.      On 8 February 2002, a delegate with the Military Compensation and Rehabilitation Service determined, in accordance with the terms of the Safety, Rehabilitation and Compensation Act 1988 (the Act), that the claim should be disallowed and, on 22 November 2002, another delegate affirmed the initial decision. On 15 January 2003, the applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal) and the matter is to be determined under the Administrative Appeals Tribunal Act 1975.

Appearances

3.      The applicant was represented by Mr J Wall, solicitor. Ms E Ford of counsel appeared on behalf of Comcare (the respondent).

4.      The following material was tendered and taken into evidence:

§exhibit 1:     a statement, dated 7 April 2003, by the applicant;

§exhibit 2:     the T documents (T1-PT25);

§exhibit 3:     an affidavit, dated 24 April 2003, by Paul Ontong, Director of Appeals with the Military Compensation and Rehabilitation Service.

Issues and Legislation

5. The issue for determination in this matter is whether or not the notice requirements as set out in section 53 of the Act have been complied with. The provision reads:

“53 (1) This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:

(a)   as soon as practicable after the employee becomes aware of the injury; or

(b)   if the employee dies without having become so aware or before it is practicable to serve such a notice—as soon as practicable after the employee's death.

(2) This Act does not apply in relation to the loss of, or damage to, property used by an employee, being a loss or damage in circumstances referred to in section 15, unless notice in writing of the accident that resulted in…