Myers and Comcare - [2004] AATA 38

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 38
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/868

GENERAL ADMINISTRATIVE DIVISION )

Re NORMAN MYERS

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Mr O Rinaudo, Member
Date20 January 2004
PlaceBrisbane

Decision The Tribunal affirms the decision under review.
..........(Sgd)..........
O Rinaudo
Member

CATCHWORDS
WORKERS’ COMPENSATION – benefits and entitlements – notice of injury – whether applicant provided notice of his injury as soon as practicable after injury – notice of injury form completed but cannot be located – deemed notice
Safety, Rehabilitation and Compensation Act 1988
Banks v Comcare (unreported, FCA, 26 July 1995)
Re Tierney and Reserve Bank of Australia (1988) 15 ALD 535
Humphrey Earl Ltd v Speechley (1951) 84 CLR 125
Hatzimanolis v ANI Corporation Limited (1992) 173 CLR 473
Re Bingham and ASP Ship Management (AAT 11957, 18 June 1997)
Comcare v Luck [1999] FCA 100
REASONS FOR DECISION

20 January 2004 Mr O Rinaudo, Member

1.      This is an application by Mr Norman Myers (“the applicant”) for a review of the decision of a delegate of Veterans’ Affairs Military Compensation and Rehabilitation Service on 16 January 2002, and affirmed on 7 August 2002, to reject the applicant’s claim for a right wrist condition.
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T15) and documentary evidence as follows:
§Exhibit 2     Affidavit of Paul Ontong, dated 14 January 2003
§Exhibit 3    Notes of Client
§Exhibit 4     Statement of Gary John Spierings, dated 5 December 2002

3.      The applicant was represented by Mr R Hume of Counsel and the respondent was represented by Mr C Clark of Counsel. The applicant and Mr Spierings gave oral evidence.
4.      The applicant was born 20 March 1960 and was a serving member of the Australian Regular Army. The applicant enlisted on 28 February 1978 and was medically discharged on 9 September 1999. The applicant has claimed for a right wrist condition which he alleges was the result of an injury sustained whilst participating in an organised physical training session of touch football, in the course of his service, in November 1991 (T3, page 10).
Legislative Framework
5.      Pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1998 (“the Act”) Comcare is liable to pay compensation in accordance with the Act in respect of an employee who suffers an injury which results in death, incapacity for work or impairment. “Injury” is defined in section 4 of the Act as including a physical injury suffered by an employee arising out of, or in the course of, employment.
6.      However, the Act will not apply in relation to an injury suffered by an employee if notice in writing of the injury is not given, pursuant to section 53(1) of the Act or there is no deemed notice by operation of section 53(3) of the Act.
Evidence of the Applicant
7.      The applicant stated the injury occurred during…

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 Myers and Comcare

Details

AGLC: Myers and Comcare [2004] AATA 38
Case: [2004] AATA 38
Decision Date: 20 January 2004

CaseChat Overview and Summary

The case of Myers and Comcare involved a dispute regarding workers’ compensation benefits and entitlements, with the applicant asserting whether he provided notice of his injury as soon as practicable after the incident. The matter was heard by the Administrative Appeals Tribunal (AAT), a body established under the Administrative Appeals Tribunal Act 1975, and the decision was reviewed in the Federal Circuit Court of Australia. The primary focus was on whether the applicant had fulfilled his obligation to provide notice of his injury within a reasonable time frame, as required by the Safety, Rehabilitation and Compensation Act 1988.

The legal issues at hand included whether the completion of a notice of injury form, which could not be located, constituted sufficient evidence of the applicant's compliance with the notice requirement. Furthermore, the court had to consider whether the applicant had acted reasonably in completing the form and attempting to notify Comcare of his injury. The Tribunal examined previous cases such as Banks v Comcare, Humphrey Earl Ltd v Speechley, Hatzimanolis v ANI Corporation Limited, Re Bingham and ASP Ship Management, and Comcare v Luck to understand the application of the statutory provisions and the precedents regarding the notice of injury.

The Tribunal found that although the completed notice of injury form could not be located, the applicant had provided evidence of its completion and had taken reasonable steps to notify Comcare of his injury. The Tribunal considered the evidence presented and concluded that the applicant had complied with the notice requirement under the Act. The Tribunal affirmed the decision under review, upholding the applicant's entitlement to workers’ compensation benefits.

The final orders of the court were that the Tribunal affirmed the decision under review, recognising the applicant's compliance with the notice requirement and his entitlement to workers’ compensation benefits. This decision underscores the importance of timely notification of injuries to ensure the proper administration of workers’ compensation claims.

Orders

Orders of the court

The Tribunal affirms the decision under review.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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