Sarraf and Comcare (Compensation)
[2018] AATA 3196
•19 July 2018
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).
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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 reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause;
the notice shall be taken to have been given under this section.
The respondent submitted that the applicant should be precluded from obtaining compensation in respect of the claimed aggravation because of his failure to give notice of the injury as soon as practicable after becoming aware of the injury.
In responding submissions made on behalf of the applicant, it was contended that following the applicant’s injury in September 2005:
he was in a highly fragile and distraught state. With two young children aged 4 and 11 at the time, a deteriorating marriage – due to constant pressure and disruptions of his debilitating condition – a wife suffering her own depression and other health related problems and without any extended family support in Australia it was indeed harrowing circumstances for the applicant and his young family.
The injury had caused severe and acute pain and spasms and he was heavily medicated to cope with his disabling pain and spasms and unable to attend work for an extended period.
Shortly after the incident of injury he had consulted his GP. He was given a medical certificate for time off work. He believes he would have discussed the circumstances of his injury with his GP who was fully aware of his Comcare claim of 2004.
The applicant’s supervisor had met his GP at a meeting requested by his employer and had established a line of communication between the Department and his treating doctors.
He believes he would have certainly advised his manager of the incident on the day of injury because the injury forced him to leave work early. He was taken home by his wife who had driven there to pick him up.
As soon as he was able, he consulted his pain management specialist, Dr Geoff Speldewinde. He was given cortisone injections to reduce the intensity of his painful spasms.
It was submitted that the Tribunal should excuse any failure by the applicant to follow correct procedure in this case because this occurred at a time when he was suffering high levels of pain, spasms and associated trauma, and was weakened and incapacitated by years of chronic pain, depression and anxiety.
The respondent noted that the applicant had attended his general practitioner (GP), Dr Robert Hain, on 28 September 2005, two days after the claimed aggravation, and that he had certified the applicant as unfit for work for a three month period. The respondent contended however, that the certificate did not explain the nature of the alleged connection with employment or the nature of the claimed injury and so should not be accepted by the Tribunal as sufficient ‘notice’ for the purposes of s 53 of the SRC Act.
It was contended that the applicant had first given written notice of the claimed aggravation to the respondent on or about 24 October 2016 when he presented a workers’ compensation claim form, together with a medical certificate from Dr Michael Madden (T6 & T6a, pp 17-23). The respondent submitted that this notice was not given as soon as practicable as required by s 53 of the SRC Act and that, given the substantial delay between the claimed aggravation and notice of the injury, the Tribunal should presume that the respondent will suffer prejudice.
The respondent also contended that, because of the delay, it had been deprived of the opportunity to arrange an independent medical examination closer in time to the claimed aggravation. Further, it was submitted that the respondent would be unable to obtain meaningful evidence as to the applicant’s duties and presentation at the time of the aggravation. The respondent maintained that, due to the delay, it would be prejudiced because it had been deprived of the opportunity to investigate the alleged incident at a time when investigations could effectively be conducted.
The respondent referred the Tribunal to the applicant’s statement in support of his application for compensation (T9, pp 30-32), in which the applicant explained his failure to give notice of the claimed aggravation. In that statement the applicant described the circumstances of the injury as having occurred either during or shortly after a period of prolonged sitting when he experienced an acute attack of excruciating pain in his lower back region. He said he was collected by his wife shortly afterwards and consulted his GP as soon as he was able, who certified him unfit for work for a period. The applicant said he believed that at some point after seeing his GP, he had visited his treating pain specialist, Dr Geoff Speldewinde, who administered cortisone spinal injections to reduce pain and inflammation.
At the time of this incident the applicant stated that he was already receiving compensation for an earlier incident of aggravation in April 2004. He said that he was not advised or instructed by either his employer or his treating doctors to submit a fresh application to the respondent for the aggravation and that, at the time, he was too distressed to ‘focus on administrative matters’ (T9, p 31). The applicant said he did not think that a fresh claim for the claimed aggravation was necessary as he was still receiving compensation for the 2004 injury.
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]).
In this case there is no question of compliance with s 54 as a claim form was lodged by the applicant on or about 24 October 2016. The issue here is whether the applicant gave notice of his injury in accordance with the requirements of s 53. The Tribunal is satisfied that the medical certificate provided by the applicant on 28 September 2005 (referred to above in these reasons at [14]), contained sufficient detail of the nature of the injury and the alleged connection with the applicant’s employment, having been allegedly caused by prolonged sitting at work on 26 September 2005.
The Tribunal does not accept that the respondent is unduly prejudiced by the delay in the submission of a formal notice of claim. The T documents with respect to this claim and the other two claims before the Tribunal contain notes of ongoing consultations, reports, medical certificates, rehabilitation and return to work assessments with respect to the applicant’s accepted back aggravation injury which occurred on 20 April 2004. The respondent also contended that it may have difficulty ascertaining the nature of the applicant’s duties at the time. However, the Tribunal notes that there is reference in the T documents to a supervisor report dated 15 December 2005 that provides further details of the applicant’s duties (T11, pp 37-38).
The applicant’s employer was aware of the alleged aggravation and accepted the medical certificate dated 28 September 2005 that certified the applicant as unfit for work at the time. The respondent considered the applicant’s claim for the alleged aggravation occurring on 26 September 2005 and wrote to him on 17 February 2017, declining his claim under s 14 of the SRC Act (T14, pp 73-74). This decision was affirmed on review following a detailed consideration of the available medical and other evidence. There are medical and rehabilitation reports on the file that relate to the time of the alleged aggravation. It was not until the applicant sought a review by this Tribunal that the respondent has raised the issue of non-compliance with s 53 and claimed prejudice.
Although the Tribunal understands the applicant’s explanations for his failure to lodge a formal notice of claim at the time of the alleged aggravation in September 2005, it considers that he would have been aware of his rights in this regard. On balance however, the Tribunal considers that whilst there was a delay of over 11 years between the date of the alleged aggravation and the applicant submitting a formal workers’ compensation claim form, for the reasons outlined above, the Tribunal does not accept that the respondent is unduly prejudiced by the delay. The Tribunal accordingly determines that s 53 of the SRC Act is satisfied in this case.
I certify that the preceding 21 (twenty -one) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham, Senior Member
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Associate
Dated: 19 July 2018
Date final submissions received: 2 July 2018 Applicant: Self-represented Counsel for the Respondent: Mr R Ternes Solicitors for the Respondent: McInnes Wilson
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