Panlook and Comcare

[2003] AATA 491

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 491

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/1082

GENERAL ADMINISTRATIVE DIVISION		)
Re		GARY PANLOOK

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr R G Kenny, Member

Date30 May 2003

PlaceBrisbane

Decision The Tribunal affirms the decision under review. 

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

R G Kenny
  Member

CATCHWORDS

WORKER’S COMPENSATION – claim for injury during military service –– whether notice of injury given as soon as practicable – whether notice deemed to have been given – whether prejudice to respondent - whether any failure to give notice due to ignorance, mistake or other reasonable cause

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 53

Comcare v Luck (1999) 29 AAR 403
Re Deveson and Comcare [1999] AATA 80
Re Ditchburn and Comcare [2003] AATA 450
Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534
Re Willis and Australian Telecommunications Commission (1989) 19 ALD 665

REASONS FOR DECISION

30 May 2003 Mr R G Kenny, Member     

Background

1.      On 6 February 2002, Gary Panlook (the applicant) completed a Claim for Rehabilitation and Compensation for injuries which he described as “musculo-ligamentous strain” of his neck and which he stated occurred when he fell from his bike while riding home from his work in 1992.

2.      On 19 July 2002, a delegate with the Military Compensation and Rehabilitation Service determined, in accordance with the terms of the Safety, Rehabilitation and Compensation Act 1988 (the Act), that the claim should be disallowed and, on 15 October 2002, another delegate affirmed the initial decision. On 9 December 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 Act 1975.

Appearances

3.      The applicant was represented by Mr P Hay of counsel. Ms E Ford of counsel appeared on behalf of Comcare (the respondent).

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

§exhibit 1:     the T documents (T1-T19);

§exhibit 2:     an affidavit, dated 2 May 2003, by the applicant with attachments A to E;

§exhibit 3:     an affidavit, dated 6 May 2003, by Paul Ontong, Director of Appeals with the Military Compensation and Rehabilitation Service.

Issues and Legislation

5.      Both Ms Ford and Mr Hay agreed that the issue for determination in this matter was whether or not the notice requirements as set out in section 53 of the Act have been complied with. The provision reads:

“53 (1) This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:

(a)   as soon as practicable after the employee becomes aware of the injury; or

(b)   if the employee dies without having become so aware or before it is practicable to serve such a notice—as soon as practicable after the employee's death.

(2) This Act does not apply in relation to the loss of, or damage to, property used by an employee,…