Keen and Comcare

[2003] AATA 219

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 219

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/700

GENERAL ADMINISTRATIVE DIVISION		)
Re		ALFRED LLOYD KEEN

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr RG Kenny, Member

Date7 March 2003

PlaceBrisbane

Decision The Tribunal affirms the decision under review. 

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

RG Kenny
  Member

CATCHWORDS

WORKER’S COMPENSATION – alleged injury occurring prior to commencement of Safety, Rehabilitation and Compensation Act 1988 – transitional provisions – whether notice of injury given as soon as practicable under Commonwealth Employees Compensation Act 1930 - whether Commonwealth prejudiced by want of notice – whether want of defect of notice due to mistake of other reasonable cause – failure to make claim within specified period -  whether failure to make claim due to mistake of other reasonable cause

Commonwealth Employees Compensation Act 1930 s 9, 16
Safety, Rehabilitation and Compensation Act 1988 s 124

Re Muras and Department of Defence (1998) 52 ALD 579

Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534

Re Willis and Australian Telecommunications Commission (1989) 19 ALD 665 
Re Harbutt and Department of Defence (1998) 51 ALD 159
Telstra Corporation v Roycroft [1997] FCA 774
Banks and Comcare (unreported Federal Court – Kiefel J – No QG 118 of 1994)
Black v City of Melbourne [1963] VR 34
Portland Harbour Trust [1963] VR 25

REASONS FOR DECISION

7 March 2003 Mr RG Kenny, Member      

Background

1.      On 15 August 2001, Alfred Lloyd Keen (the applicant) completed a “Claim for Rehabilitation and Compensation” for injuries which he described as “ankles and back”.  He stated in that form that the injuries occurred in June 1970 whilst he was serving as a member of the Australian Army.

2.      On 15 March 2002, a delegate with the Military Compensation and Rehabilitation Service determined that the claim should be disallowed and, on 28 May 2002, another delegate affirmed the initial decision.

3.      On 15 August 2002, 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 Act1975.

Appearances

4.      The applicant attended the hearing and was represented by Mr J Clutterbuck of counsel. Mr C Clark of counsel appeared on behalf of Comcare (the respondent).

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

Exhibit 1:       the T documents (T1-T26);
Exhibit 2:       an affidavit, dated 14 February 2003, by the applicant with   attachments A to E;

Exhibit 3:the applicant’s Army medical records;

Exhibit 4:a statement, dated 26 February 2003, by Paul Ontong;

Exhibit 5:an affidavit, dated 25 February 2003, by Katrina Palmer with attachments A and B;

Exhibit 6:an affidavit, dated 26 February 2003, by Katrina Palmer;

Exhibit 7:documents provided by Jeffrey Houghton, chiropractor;

Exhibit 8:documents provided by Dr J Blakie;

Exhibit 9: documents provided by the Manager of the Goombungee Medical Practice, Goombungee;

Exhibit 10:an e-mail message, dated 26 February 2003, from Pamela Ford;

Exhibit 11:a letter, dated 26 February 2003, from Zelda…