Lombardi and Comcare - [2005] AATA 167

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 167

ADMINISTRATIVE APPEALS TRIBUNAL ) N2003/1607

)

GENERAL ADMINISTRATIVE DIVISION )

ROBERTA LOMBARDI

Applicant

And

COMCARE

Respondent
DECISION

Tribunal

Ms G Ettinger - Senior Member

Date 24 February 2005

PlaceSydney
DecisionThe reviewable decision is affirmed.
Pursuant to section 67(8) of the Safety Rehabilitation and Compensation Act 1988, costs cannot be awarded.
[Sgd] Ms G Ettinger
Senior Member

CATCHWORDS

Compensation – claim for 1995/6 back injury – injury not reported - section 53/notice issue - employer, the Commonwealth Bank later self insured in relation to 2001 injury/aggravation - other injuries claimed via State system – no reasonable excuse - no liability – any permanent impairment not compensable – decision affirmed.

LEGISLATION

Safety Rehabilitation and Compensation Act 1988 ss 4, 14, 24, 27, 53

CASE LAW

Holmes v Comcare [2001] AATA 290

Comcare v Luck [1999] FCA 100

Re Hanson and Comcare (1996) 41 ALD 639

Re Brady and Australian National Railways Commission (1987) 13 ALD 187

REASONS FOR DECISION

24 February 2005

Ms G Ettinger – Senior Member

The application before the Administrative Appeals Tribunal (“the Tribunal”) was that of Ms Roberta Lombardi appealing against a decision of Comcare, the Respondent, dated 14 May 2003 (T15), which was affirmed by the decision of 22 August 2003 (T23), and made within the legislative environment of the Safety Rehabilitation and Compensation Act 1988 (“the Act”). Comcare found that compensation was not payable to the Applicant in respect of a back injury sustained on a deemed date in 1994/5, (which at the Tribunal Hearing was considered to be more correctly characterised as 1995/6).

At the Tribunal Hearing, the Applicant was represented by Ms K Sibley of counsel instructed by Andrew Fegent & Company, and the Respondent, Comcare, by Mr S Moffet of counsel, instructed by Dibbs Barker Gosling Lawyers.

ISSUES BEFORE THE TRIBUNAL

I had to decide :

whether liability should be accepted by the Respondent for injury to the Applicant’s lumbar spine claimed to have been incurred at work in 1995/6, and of which notice was not given to her employer in writing as soon as practicable (section 53 of the Act);
whether I was satisfied Mrs Lombardi had a reasonable explanation for not having reported her 1995/6 injury pursuant to section 53 of the Act; if so,
whether she is entitled to compensation pursuant to section 14 of the Act, and is permanently impaired pursuant to sections 24 and 27 of the Act in relation to injuries claimed to have been incurred on an unspecified date in 1995/6.

LEGISLATIVE FRAMEWORK

The relevant legislation in this matter is the Safety Rehabilitation and Compensation Act 1988, in particular sections 4, 14, 16, 24, 27 and 53
I was mindful that for Ms Lombardi’s injuries to be compensable, the definition of injury, which includes aggravation of a physical or mental injury pursuant to section 4 of the Act must be satisfied, and the injuries must be found to have resulted in incapacity…

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 Lombardi and Comcare

Details

AGLC: Lombardi and Comcare [2005] AATA 167
Case: [2005] AATA 167
Decision Date: 24 February 2005

CaseChat Overview and Summary

Lombardi brought a claim against Comcare for a back injury sustained in 1995/6, which he did not report at the time. The primary issue was whether the failure to report the injury within the stipulated timeframe under section 53 barred his claim. Comcare argued that the failure to report the injury constituted a failure to provide reasonable excuse, thereby negating their liability for the claim. The court was required to determine whether Comcare was liable for the back injury from 1995/6 and subsequent injuries that Lombardi claimed were related to that injury.

The court considered that Lombardi did not report the initial injury as required, and there was no reasonable excuse provided for this failure. The employer at the time, the Commonwealth Bank, later became self-insured and dealt with a 2001 injury which was considered an aggravation of the original injury. The court found that Lombardi's failure to report the initial injury and provide a reasonable excuse meant that Comcare had no liability for the 1995/6 injury. Additionally, any claims regarding subsequent injuries were dismissed as they were not reasonably connected to the original injury.

As a result, the court concluded that Lombardi's claim for compensation was not valid due to the failure to report the initial injury. The decision was affirmed, and no liability was found on Comcare's part for the claimed injuries. Lombardi was also found not to be entitled to compensation for any permanent impairment arising from the initial injury.

Orders