Rose and Comcare - [2003] AATA 1286

CATCHWORDS – COMPENSATION – Workers' Compensation – whether applicant failed to give notice or lodge claim for compensation in the prescribed period - whether injury/disease suffered in the course of or arising out of the applicant’s employment – whether applicant made a mistake at fact and/or law as to whether compensation could be payable for his disease – decision set aside.

Safety, Rehabilitation and Compensation Act 1988 ss. 4, 62 and 124; Part X

Compensation (Commonwealth Government Employees’) Act 1971 ss. 4, 5, 53, 54, 70 and 128
Administrative Appeals Tribunal Act 1975 ss. 26 and 37
Commonwealth Employees’ Compensation Act 1930 ss. 4, 10 and 16

Commonwealth Workmen’s Compensation Act 1912

Willis and Australian Telecommunications Commission (1989) 10 AAR 382

Stevenson v Metropolitan Meat Industry Commission (1937) 37 SR (NSW) 109

DECISION AND REASONS FOR DECISION [2003] AATA 1286

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          S2001/367 and
GENERAL ADMINISTRATIVE DIVISION     )          S2002/83

Re ALFRED ROSE

Applicant

AndCOMCARE

Respondent

DECISION

Tribunal: Deputy President S A Forgie

Date: 16 December, 2003

Place: Adelaide

Decision:The Tribunal:

1.sets aside the reviewable decisions dated 4 March, 2002 and 6 September, 2001 and the determination dated 7 June, 2001; and
2.substitutes a decision that the applicant is not prevented from making a claim for compensation by reason of his failure to make a claim for compensation within the time specified in s. 16 of the Commonwealth Employees’ Compensation Act 1930 (“1930 Act”) or s. 54 of the Compensation (Commonwealth Government Employees’) Act 1971.

S A FORGIE
Deputy President

REASONS FOR DECISION

On 2 October, 2001, the applicant, Mr Alfred Rose, applied for review of a reviewable decision of a delegate of the respondent, Comcare, dated 6 September, 2001. The delegate affirmed a determination dated 7 June, 2001 that compensation was not payable to Mr Rose under the Safety Rehabilitation and Compensation Act 1988 (“1988 Act”) in respect of alcoholism. On 4 March, 2002, a delegate of Comcare revoked both the reviewable decision and the determination. In place of the determination, she substituted a determination that Mr Rose’s claim for compensation was not made within the period prescribed in s. 54(2) of the Compensation (Commonwealth Government Employees) Act 1971 (“1971 Act”) and that, consequently, Mr Rose was not entitled to compensation under the 1988 Act. Mr Rose applied for review of that decision on 22 March, 2002.

At the hearing, Mr Rose was represented by Mr Bulloch and Comcare by Mr Cole of counsel. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 (“T documents”) were admitted in evidence together with the delegate’s decision dated 4 March, 2002, a letter from Comcare’s solicitor to Dr Thompson dated 15 August, 2002, a message from Dr Jeff Stewart dated 29 November, 2001, a message from Sue of Central Clinic at Port Pirie with additional handwritten notes, Sparke Helmore attendance record dated 6 December, 2001, a handwritten note and Sparke Helmore attendance record dated 21 December, 2001, a bundle of…

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 Rose and Comcare

Details

AGLC: Rose and Comcare [2003] AATA 1286
Case: [2003] AATA 1286
Decision Date: 16 December 2003

CaseChat Overview and Summary

Alfred Rose sought a review of Comcare's decisions that he was not entitled to compensation for his alcoholism, as he had not made his claim within the prescribed period under the Commonwealth Employees’ Compensation Act 1930 or the Compensation (Commonwealth Government Employees’) Act 1971. The issues were whether Mr Rose had given notice of his injuries or diseases or lodged his claim as required by either Act, and determining the date on which the injury for which he claimed compensation arose. The Tribunal found that Mr Rose had made a mistake of law and/or fact as to whether compensation could be payable for his disease, and set aside the decisions. The Tribunal substituted a decision that Mr Rose was not prevented from making a claim for compensation by reason of his failure to make a claim for compensation within the time specified in s. 16 of the 1930 Act or s. 54 of the 1971 Act.

Orders