Frosch and Comcare - [2004] AATA 382

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 382
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2003/122

GENERAL ADMINISTRATIVE DIVISION )

Re JEANNENE FROSCH

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Mr G A Mowbray
Date23 March 2004
PlaceCanberra

Decision For reasons given orally on 23 March 2004 the Tribunal affirms the decision of Comcare dated 20 March 2003. The Applicant is not entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988 for her condition of post traumatic stress disorder.
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Member

ADMINISTRATIVE APPEALS TRIBUNAL        )
  )             No:       A2003/122
GENERAL ADMINISTRATIVE DIVISION         )
Re:        JEANNENE FROSCH

Applicant

And: COMCARE

Respondent

DIRECTION [2004] AATA 382
Tribunal                        Mr GA Mowbray, Member
Date  5 May 2004
Place  Canberra
DirectionPursuant to section 43AA(1) of the Administrative Appeals Tribunal Act 1975 the Tribunal directs that the Registrar alter the text of the reasons for decision in this matter published on 16 April 2004 as follows:

Paragraph 10 is amended by deleting the first sentence and substituting the following words: “For the purposes of these proceedings Ms Frosch does not press an absence of prejudice and concedes that the exceptions of death, absence from Australia, ignorance and mistake are not applicable.”
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Member

CATCHWORDS
COMPENSATION – refusal of liability – failure to notify of injury as soon as practicable – what constitutes notice – medical certificate as notice – five and half years delay – reasonable cause – ill health – decision affirmed
Safety, Rehabilitation and Compensation Act 1988 s 53
Commonwealth Employees’ Compensation Act 1930 s 16
Lees v Comcare (1999) 29 AAR 350
Australian Postal Corporation v Oudyn (2003) 73 ALD 659
Australian Postal Corporation v Mowbray [2003] FCA 1258
Banks v Comcare [1996] FCA 382
REASONS FOR DECISION

16 April 2004 Mr G A Mowbray

Background
1. On 4 September 2002 Ms Frosch made a claim under section 54 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for compensation and rehabilitation for post traumatic stress disorder (PTSD). She stated she first noticed the illness in approximately mid-1994 onwards. She later described this illness as being due to persistent bullying by her employer, Comsuper.
2.      The claim was refused by determination dated 28 November 2002 and this refusal was confirmed by a reviewable decision of 20 March 2003. The refusal relied on section 14 of the Act. Ms Frosch now seeks review of this decision by the Tribunal.
3.      On 1 December 2003 Senior Member Sassella decided the Tribunal had jurisdiction to consider the preliminary question of whether Ms Frosch had satisfied the notice requirement in section 53, before proceeding to a substantive hearing on the merits.
4. This preliminary question was heard on 22 March 2004 and oral reasons for affirming the reviewable decision given on 23 March 2004. On 25 March 2004 the Tribunal received a request for written reasons for the decision from Ms Frosch’s legal representative pursuant to section 43(2A) of the Administrative Appeals Tribunal Act 1975. Accordingly these written reasons have…

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.

Continue reading Frosch and Comcare

Details

AGLC: Frosch and Comcare [2004] AATA 382
Case: [2004] AATA 382
Decision Date: 23 March 2004

CaseChat Overview and Summary

Frosch sought compensation from Comcare for post traumatic stress disorder, stemming from her employment with the Australian Federal Police. Comcare refused to accept liability, citing the Applicant's failure to notify of the injury as soon as practicable. The dispute was heard by the Administrative Appeals Tribunal. The central legal issue was whether the Applicant's submission of a medical certificate, five and a half years after the event, constituted timely notice of the injury as required by the Safety, Rehabilitation and Compensation Act 1988. The court also had to consider whether there was reasonable cause for the delay, given the Applicant's ill health.

The Tribunal concluded that the medical certificate did not constitute the required notice, as it was not submitted as soon as practicable. The five and a half year delay was not justified by the Applicant’s ill health. The reasoning followed established case law, which requires notice of an injury to be given promptly. The Tribunal relied on previous decisions such as Lees v Comcare, Australian Postal Corporation v Oudyn, Australian Postal Corporation v Mowbray, and Banks v Comcare to support its findings. These cases emphasised the importance of timely notification and the lack of reasonable cause for delays.

The Tribunal affirmed Comcare's decision, rejecting the Applicant's claim for compensation. The Tribunal held that the failure to notify the injury as soon as practicable, combined with the significant delay, meant the Applicant was not entitled to compensation under the Act. The Tribunal's decision was based on the established principles of timely notice and the requirement for reasonable cause for delays. The orders confirmed that the Applicant's claim was dismissed.

Orders

Orders of the court

For reasons given orally on 23 March 2004 the Tribunal affirms the decision of Comcare dated 20 March 2003. The Applicant is not entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988 for her condition of post traumatic stress disorder.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		JEANNENE FROSCH