Wickes and Telstra Corporation Limited

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 494

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2002/496

GENERAL ADMINISTRATIVE DIVISION		)
Re		LAMMINA MINEKE WICKES

Applicant

And TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal Michael Sassella, Senior Member
Dr M D Miller AO, Member

Date18 May 2004

PlaceCanberra

Decision The reviewable decision is affirmed.  The applicant is entitled to no costs associated with this application.

[sgd] M J Sassella

Senior Member

4. Where a disease is involved it must satisfy the definition of a disease in s 4(1):

disease means:

(a) any ailment suffered by an employee; or

(b) the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation;

5. The definition of a disease refers to an ailment and an aggravation as relevant concepts. These are defined also in s 4(1):

aggravation includes acceleration or recurrence;

ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);

6. An aggravation may also be present where the conditions set out in s 7(6) of the Act are met:

(6) An incapacity for work or impairment of an employee shall be taken, for the purposes of this Act, to have resulted from a disease, or an aggravation of a disease, if, but for that disease or aggravation, as the case may be:

(a) the incapacity or impairment would not have occurred;

(b) the incapacity would have commenced, or the impairment would have occurred, at a significantly later time; or

(c) the extent of the incapacity or impairment would have been significantly less.

7. If an injury is present then s 14(1) of the Act provides that Comcare is liable to pay compensation to the employee:

Compensation for injuries

14. (1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

8. A threshold issue is Ms Wickes’s apparent failure to satisfy s 53 of the Act. The effect of s 53(1) is that compensation cannot be paid under the Act unless Ms Wickes gave notice in writing of her injury to Telstra as soon as practicable after she became aware of the injury. Ms Wickes became aware of her alleged injury on 3 October 1999 but gave no written notice until 14 November 2001, more than two years later and not likely to be “as soon as practicable” after the date of awareness.

9. Section 53(3) may assist Ms Wickes in that it allows a decision-maker such as the tribunal to deem appropriate notice to have been given where late notice has been given, and any one of the following conditions applies:

·     Telstra would not, by reason of the failure, be prejudiced if the notice is treated as sufficient notice; or

·     The failure…