[2012] AATA 731
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2010/4125, 2011/3294
Re
Mark Anstee
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Hon. B Tamberlin, QC, Deputy President
Dr M Couch, MemberDate 24 October 2012 Place Sydney The decision under review is affirmed.
................................[Sgd]....................................
Hon. Brian Tamberlin, QC, Deputy President
Catchwords
COMPENSATION: whether claim is barred for failure to give written notice as soon as practicable – written notice given - whether Applicant suffered compensable injury – Applicant does not suffer from a compensable injury as a result of rugby incident – decision under review affirmed.
Legislation
Compensation (Commonwealth Government Employees) Act 1971 ss 53 and 54
Safety, Rehabilitation and Compensation Act 1988Cases
Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534
Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1
Frosch v Comcare [2004] FCA 1642REASONS FOR DECISION
Hon. B Tamberlin, QC, Deputy President
Dr M Couch, Member24 October 2012
The Applicant seeks review of a decision by a Comcare Review Officer which denied liability for compensation under the Safety, Rehabilitation and Compensation Act 1988 in respect of what is described as a claim for “internal derangement of knee (bilateral)”, because the delegate was not satisfied that the injury was significantly contributed to by his employment.
BACKGROUND
The Applicant is a 56 year old barrister. Between June 1982 and July 1983 he served as a Senior Constable in an Australian civilian police contingent in Cyprus, which was classified as “War Zone”. On 1 September 1982, the Applicant was playing in a United Nations rugby union game. He states that during the course of the second half, an opposing player kicked a long, high ball across the open field to a position near where the Applicant was standing. The Applicant jumped high for the ball and, as he was coming back towards the ground with the ball in his hands, an opposing player charged down at him at high speed and at the last minute launched himself towards the Applicant with both knees forward, connecting with both the Applicant’s knees and lower thigh muscle on the front of the left leg. The Applicant hit the ground landing heavily on both knees and he was propelled backwards due to the remaining momentum of the opposing player. He says that he noted the onset of severe pain at his bilateral knees and left thigh. The game was stopped and the Applicant was unable to stand up and was removed by stretcher. He noted redness and dark bruising at his lower left thigh and gross colouring and discolouration to both knees over and above the knee caps. He had approximately two days off work during which he rested. Afterwards, he says he had difficulty walking to the office.
The Applicant says he prepared a report outlining the incident and later gave it to Chief Inspector Young, and although the Inspector appeared to read it, he tore it in half and threw it in the Applicant’s face. The…
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- Mark Anstee and Comcare [2012] AATA 731
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- [2012] AATA 731
- Decision Date
CaseChat Overview and Summary
The primary legal issues in this case were whether the Applicant's claim was barred under the Act for not providing written notice as soon as practicable and whether the Applicant suffered from a compensable injury due to the rugby incident. The Tribunal had to evaluate the medical evidence and testimonies regarding the extent and cause of the Applicant's injuries, as well as the impact of the incident on his current condition.
The Tribunal examined the medical history and evidence, finding that while the Applicant did suffer a significant muscle injury to his left thigh in 1982, there was little evidence of ongoing knee problems until later. The Tribunal preferred the evidence of Dr McGill, who concluded that the Applicant did not suffer significant impairment from the 1982 incident, despite having bilateral moderately severe patello-femoral osteoarthritis. The Tribunal affirmed the decision under review, finding that the Applicant's current condition was not significantly contributed to by the rugby incident, and thus, the claim for compensation was not substantiated.
The final orders of the Tribunal were to affirm the decision of the Comcare Review Officer, denying the Applicant's claim for compensation. The Tribunal found that the claim was not barred by the Act and that the Applicant did not suffer a compensable injury due to the rugby incident.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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