Duncan and Comcare

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 666

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/144

GENERAL ADMINISTRATIVE DIVISION		)
Re		KENNETH DUNCAN

Applicant

And COMCARE

Respondent

DECISION

Tribunal Ms S M Bullock, Senior Member,
Dr M E C Thorpe, Member

Date28 June 2004

PlaceSydney

Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is affirmed

.

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Ms S M Bullock,
   Presiding Member

WORKERS COMPENSATION – Transitional provisions – Failure to give notice – Failure to make a claim for compensation within specified period – Prejudice to the Commonwealth - Whether failures occasioned by mistake or reasonable cause -  Post Traumatic Stress Disorder – Anxiety Disorder Not Otherwise Specified – 1930 Act

Safety Rehabilitation and Compensation Act 1988   

Commonwealth Employees’ Compensation Act 1930

Re Wright v Commonwealth of Australia (1988) 14 ALD 567

Comcare v McGuire (1996) 68 FCR 329

REASONS FOR DECISION

28 June 2004  Ms S M Bullock, Senior Member,
  Dr M E C Thorpe Member

1.Mr Kenneth Duncan has made an application for review to the Administrative Appeals Tribunal (“the Tribunal”) of a reviewable decision made on 14 January 2003 (T21) which affirmed a determination made on 23 April 2002 (T17), that the injury from which Mr Duncan suffers, is not causally related to the nature of his service and does not render him incapacitated for work. 

2.A Hearing was held in Sydney on 24 March 2003 and resumed on 16 June 2004. Mr Duncan was represented by Mr C Jackson of Counsel, and the Respondent, Comcare, was represented by Miss R Henderson of Counsel. Oral evidence was provided by Mr Duncan. Documents were lodged and taken into evidence pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“T Documents”, T1-21) and a number of exhibits, which are listed in Schedule 1 to this Decision.

issues

3.As Mr Duncan made a claim for compensation on 7 May 2001, in relation to an incident which occurred on 17 September 1969, the claim falls for initial consideration under the provisions of the Commonwealth Employees’ Compensation Act 1930.  The issues in this matter are:-

(i) Whether or not the failure of Mr Duncan to comply with time limits under the Commonwealth Employees’ Compensation Act 1930 prevents him being paid compensation under the Safety, Rehabilitation and Compensation Act 1988; and if not, then,

(ii)       Whether or not Mr Duncan has a psychiatric condition and if so, what is its diagnosis and is it causally related to his employment with the Citizens’ Military Force;

(iii)       Whether or not Mr Duncan is entitled to compensation.

legislation

4.A determination in this matter requires the consideration of two pieces of legislation, namely:

·Commonwealth Employees’ Compensation Act 1930 (“the 1930 Act”).

·Safety, Rehabilitation and Compensation Act 1988 (“the 1988 Act”).

5.Mr Duncan lodged his claim for compensation for post traumatic stress disorder on 7 May 2001, which he believes occurred during his service in the…