Sarraf and Comcare (Compensation)

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.