Sarraf and Comcare (Compensation) - [2018] AATA 3196

Sarraf and Comcare (Compensation) [2018] AATA 3196 (19 July 2018)
Division:GENERAL DIVISION
File Number(s): 2017/7733
Re:Ardalan Sarraf
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Ms A F Cunningham, Senior Member
Date:19 July 2018
Place:Hobart

The Tribunal is satisfied that notice of the applicant’s injury was given to the respondent as required by s 53 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
...............................[sgd]..................................
Ms A F Cunningham, Senior Member
CATCHWORDS
COMPENSATION – notice – notice of injury – whether notice was given as soon as practicable – whether failure to give notice would prejudice respondent – notice was given.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 53, 54
CASES
Frosch v Comcare (2004) FCA 1642
Streatfield and Comcare [2007] AATA 72
REASONS FOR DECISION
Ms A F Cunningham, Senior Member
19 July 2018

The applicant, Ardalan Sarraf, made an application for the review of a decision of the respondent dated 12 May 2017 that affirmed a determination denying liability in respect of the applicant’s claimed ‘chronic low back pain, aggravation of disc degeneration L4/L5 and L4/S1’ (the claimed aggravation) sustained on 26 September 2005 (T21, pp 86-89).
A preliminary issue has arisen as to whether the applicant is prevented from obtaining compensation in respect of the claimed aggravation by operation of s 53 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). The parties were directed to file written submissions to address the issue. The respondent provided submissions dated 7 May 2018 and the applicant provided submissions in reply on 2 July 2018.
Section 53 of the SRC Act provides:
Notice of injury or loss of, or damage to, property
1This 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.
2This Act does not apply in relation to the loss of, or damage to, property used by an employee, being a loss or damage in circumstances referred to in section 15, unless notice in writing of the accident that resulted in the loss or damage is given to the relevant authority:
(a)as soon as practicable after the employee becomes aware that the accident had resulted in the loss or damage; 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.
3Where:
(a)a notice purporting to be a notice referred to in this section has been given to the relevant authority;
(b)the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and
(c)the relevant authority would not, by…

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 Sarraf and Comcare (Compensation)

Details

AGLC: Sarraf and Comcare (Compensation) [2018] AATA 3196
Case: [2018] AATA 3196
Decision Date: 19 July 2018

CaseChat Overview and Summary

This matter concerned an application for compensation before Ms A F Cunningham, Senior Member, of the Administrative Appeals Tribunal. The applicant sought compensation for an aggravation of a back injury allegedly occurring in September 2005. The respondent, Comcare, contended that the applicant had delayed unreasonably in providing notice of this aggravation and that his explanation for the delay was not plausible.

The primary legal issue before the Tribunal was whether the applicant had provided notice of the injury as soon as practicable, as required by section 53(3) of the *Safety, Rehabilitation and Compensation Act 1988* (Cth), and whether any failure to do so would prejudice Comcare. The Tribunal was required to determine when, if at all, effective notice was given and whether the applicant's circumstances constituted ignorance, mistake, or a reasonable cause for any delay.

The Tribunal considered that the applicant's submission that he did not lodge a formal notice because he was already receiving compensation for a pre-existing back injury was a significant factor. It was noted that the applicant had presented a medical certificate to his employer on 28 September 2005, which stated that he was suffering from an aggravation of L5-S1 degeneration caused by prolonged sitting at work and further aggravation at work on 26 September 2005. The Tribunal referenced *Frosch v Comcare* (2004) FCA 1642, affirming that the question of whether notice was given is a question of fact. Furthermore, the Tribunal drew upon *Streatfield and Comcare* [2007] AATA 72, where an email to an employer advising of work-related incapacity was deemed sufficient notice as it contained the essential information regarding the nature of the injury and its connection to employment.

The Tribunal found that the medical certificate provided to the employer on 28 September 2005, coupled with the applicant's existing compensation arrangements for his back injury, could be considered as having given notice of the claimed aggravation. The Tribunal concluded that the applicant had given notice of the claimed aggravation.

Orders

Orders of the court

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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

In its submissions, the respondent contended that the applicant was not ignorant of the required administrative procedure having submitted three claims for workers’ compensation by 2005, and that he was well aware of his rights. It was submitted that the applicant’s claim of considerable low back pain in 2005 was not a plausible explanation for the delay of more than 11 years in submitting his claim for an aggravation that allegedly occurred in 2005. Finally, the respondent submitted that the applicant’s explanation did not constitute ignorance, mistake or a reasonable cause for failing to give notice as soon as practicable within the meaning of s 53(3) of the SRC Act.CONSIDERATION AND FINDINGS The applicant currently has two other applications for review before the Tribunal which relate to compensation payments arising from the back injury in 2004 (AAT files 2016/3682 & 2017/4137). Since that date the applicant has consulted, and been referred to, numerous medical practitioners and specialists, rehabilitation consultants, occupational therapists and the like with respect to that injury. The applicant submitted that, as he was already in receipt of compensation payments from the respondent for his back injury, he did not consider that he was required to lodge a formal notice of injury at the time of the claimed aggravation in September 2005. As the respondent acknowledged in its submission, it is arguable that the applicant ‘gave notice’ of the claimed aggravation when he presented the medical certificate to his employer on 28 September 2005 (T146, p 473; AAT file 2016/3682). The respondent contended however, that this certificate did not explain the nature of the alleged connection with employment nor did it convey the nature of the claimed injury. The certificate states that Dr Hain examined the applicant on 28 September 2005 in relation to an injury occurring in April 2004 and that the applicant was suffering from an aggravation of L5-S1 degeneration. Based on the information available, Dr Hain opined that ‘this was caused by prolonged sitting at work, with further aggravation at work on 26/9/05’ and certified the applicant as unfit for work from 27 September 2005 until 28 December 2005. The respondent contended that the Tribunal should find that the applicant first gave written notice of the claimed aggravation to the respondent on or about 24 October 2016 when he presented the workers’ compensation claim form, together with a medical certificate from Dr Madden. In Frosch v Comcare (2004) FCA 1642 the Federal Court held that whether notice has been given to the relevant authority is a question of fact to be found by the Tribunal. The applicant in Streatfield and Comcare [2007] AATA 72 had injured his lower back in compensable circumstances and was awarded compensation by Comcare. Several years later, he sent an email to his employer advising that he had suffered work-related incapacity on several other occasions. The employer forwarded the email to Comcare along with a covering letter. The Tribunal held that the email sent to the employer by the applicant was sufficient notice of the injuries described as it contained the essential information required in a s 53 notice, that is, the nature of the injury or ailment and its connection with the employment (at [11]). The subsequent email and covering letter sent by the employer also contained sufficient information to substantially comply with the requirements of claim in s 54 (at [12]).