Long and Comcare

[2003] AATA 116

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 116

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/857

GENERAL ADMINISTRATIVE DIVISION		)
Re		GRAHAM LONG

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr R G Kenny, Member

Date7 February 2003

PlaceBrisbane

Decision The Tribunal affirms the decision under review. 

(Sgd)

Mr R G 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 sections 9, 16
Safety, Rehabilitation and Compensation Act 1988 section 124

Commonwealth v Connors (1989) 86 ALR 247
Re Muras and Department of Defence (1998) 52 ALD 579

Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534
Roles v Pascall & Sons [1911] 1 KB 982

Stevenson v Metropolitan Meat Industry Commission (1936) 37 SR(NSW) 109
Telstra Corporation v Roycroft [1997] FCA 774

Re Willis and Australian Telecommunications Commission (1989) 19 ALD 665 
Re Harbutt and Department of Defence (1998) 51 ALD 159

REASONS FOR DECISION

7 February 2003 Mr R G Kenny, Member     

Background

1.      On 15 February 2002, Graham Long (the applicant) completed a “Claim for Rehabilitation and Compensation” for injuries which he described as “cervical spondylosis” and “lumbar spondylosis”. He stated in that form that the injuries occurred in 1957 and 1962, respectively, whilst he was serving as a member of the Royal Australian Navy.

2.      On 28 March 2002, a delegate with the Military Compensation and Rehabilitation Service determined that the claim should be disallowed and, on 23 September 2002, another delegate affirmed the initial decision.

3.      On 8 October 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 spoke to the Tribunal by telephone. He was not represented. 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-T17);
Exhibit 2:       an affidavit, dated 24 January 2003, by Paul Ontong; and

Exhibit 3:a letter, dated 2 December 2002, from the applicant with attachments viz

§a letter, dated 3 March 1992, from John Taylor, solicitor;

§a memorandum of advice, dated 6 September 1991, from R D Back, barrister; and

§a medical report from Dr P Sandstrom, neurologist, dated 18 February 1991.

Legislative Framework and Issue for Determination

6.      The Safety, Rehabilitation and Compensation Act1988 (the 1988 Act) makes provision for compensation to be paid by the Commonwealth in relation to work-related injuries or diseases to be paid to nominated classes of…