Gualano and Comcare - [2006] AATA 154

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 154
ADMINISTRATIVE APPEALS TRIBUNAL N° V2004/792
GENERAL ADMINISTRATIVE DIVISION

Re: VITTORIO GUALANO
Applicant

And: COMCARE
Respondent

INTERLOCUTORY
Tribunal: Miss E.A. Shanahan, Member
Date:23 February 2006
Place:Melbourne

Decision: The Tribunal determines as follows:
1.the date of initial injury, namely the fall on the way to work, occurred on 15 June 1972;
2.the applicable legislation is the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) and the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act);
3.Mr Gualano did give notice of the injury sustained on 15 June 1972; and
4.on the evidence to date, Mr Gualano’s claim for compensation is not inadmissible by reason of s 124 of the SRC Act or by s 53 and s 54 of the 1971 Act.
(sgd) E.A. Shanahan
Member

compensation – injury claimed to have occurred in 1971 or 1972 – formal claim for compensation lodged in 2003 – exact date of injury – the question of which of the Commonwealth Compensation Acts applies namely 1930 or 1971 Act – whether notice given and claim made within the relevant timeframes – prejudice to the Commonwealth – reasonable cause.
Safety, Rehabilitation and Compensation Act 1988
Compensation (Commonwealth Government Employees) Act 1971
Murray v Baxter and Others (1914) 18 CLR 622
Quinlivan v Portland Harbour Trust [1963] VR 25
Black v City of South Melbourne [1963] VR 34
Re Tierney and Reserve Bank of Australia (1988)15 ALD 534
Re Willis and Australian Telecommunications Commission and Commonwealth of Australia (N°2) (1990) 19 ALD 677
Windshuttle v Deputy Federal Commissioner of Taxation (1993) 46 FCR 235
Banks v Comcare Australia,Federal Court, 22 May 1996, QG118/1994
Re Loft and Comcare (1996) 52 ALD 606
Telstra Corporation Ltd v Roycroft (1997) 77 FCR 358
Re Scutts and Department of Defence AAT 13085, 10 July 1998, 527/1998
Re Muras and Department of Defence (1998) 52 ALD 579
Comcare v Luck (1999) 29 AAR 403
Re Quinn and Comcare [1999] AATA 607
Re Siemsen and Comcare [1999] AATA 871
Re Toholka and Comcare [1999] AATA 947
REASONS FOR INTERLOCUTORY DECISION
23 February 2006  Miss E.A. Shanahan, Member
1.      On the completion of the applicant’s oral evidence on 13 September 2005, the Tribunal was requested to make decisions with written reasons, relating to several threshold points. Submissions on these threshold points were made by counsel for both parties on 20 October 2005.
2.      The threshold points include the date of the alleged injury suffered by the applicant and, as a corollary, which Act in accordance with the transitional provisions of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) is attracted; whether or not notice of the injury was given; whether a claim was made within the relevant Act’s time frame and if not, whether there existed “reasonable cause” to negate the prejudice to the Commonwealth.
3.      Mr Vittorio Gualano signed a claim for compensation form on 27 March 2003 alleging a right shoulder injury causing limited movement due to…

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 Gualano and Comcare

Details

AGLC: Gualano and Comcare [2006] AATA 154
Case: [2006] AATA 154
Decision Date: 23 February 2006

CaseChat Overview and Summary

Vittorio Gualano, an applicant, sought compensation from Comcare, the respondent, for an injury he sustained in 1972. The Administrative Appeals Tribunal (AAT) was tasked with determining several threshold issues, including the exact date of the injury, the applicable legislation, whether Gualano had given notice of the injury, and whether he lodged a claim within the relevant timeframe. The AAT was also required to consider whether there was reasonable cause to excuse the delay in lodging the claim.

The AAT determined that the injury occurred on 15 June 1972, and thus the applicable legislation was the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) and the Compensation (Commonwealth Government Employees) Act 1971 (1971 Act). Gualano had given notice of the injury, as he had reported it to his foreman the following day and believed he had lodged a claim form as instructed by his employer. However, there was no evidence to corroborate Gualano's claim that he had lodged a formal claim form within six months of the injury. Despite this, the AAT found that Gualano had given notice of the injury and relied on the representations of his employer that all necessary forms had been completed.

The AAT held that Gualano's claim for compensation was not inadmissible under s 124 of the SRC Act or by s 53 and s 54 of the 1971 Act, as there existed reasonable cause to excuse the delay in lodging the claim. Gualano had acted on the basis of mistaken knowledge and was not aware of the relevant compensation legislation or his rights under it. The AAT noted that Gualano's lack of familiarity with the workers' compensation system, coupled with his limited English language skills, contributed to his misunderstanding of the notification and claim processes. Therefore, Gualano's claim would not be prejudiced by the delay.

In conclusion, the AAT determined that Gualano's claim for compensation was not inadmissible, and further medical evidence would be required to resolve conflicting medical dates and symptomatology if the matter proceeded to a resumed hearing.

Orders