December 7, 2017

Employer Liability & Workers Compensation | QLD

11 year delay? That ship has sailed.

Not all good things come to those who wait.  As the worker in Spence and Comcare[1] discovered, the Administrative Appeals Tribunal (the Tribunal) does not take kindly to a delay of 11 years in giving notice of an injury for a claim for workers’ compensation.

background

The worker was employed by the Australian Federal Police (the AFP).  He alleged that in 2003 he injured his back unhitching a police boat from a police vehicle (the boat incident).  A claim for worker’s compensation for the boat incident was not lodged until 11 November 2015.

The worker contended that his earlier back condition was aggravated by carrying heavy weights in his load-bearing vest and accoutrement belt between 2011 and 2014 (the vest incident).  A claim for workers’ compensation for the vest incident was lodged on 3 March 2014.  Comcare accepted liability for the vest incident but later revoked that decision.

Issues

Comcare accepted the worker suffered from a back condition.  The issue under review was whether Comcare was liable to pay compensation to the worker for the boat incident or the vest incident.  This required consideration of the following:​

1. Did Mr Spence injure his back unhitching a police boat from a police vehicle?  If so:

(a) Did his lumbar spine condition arise out of the boat incident?

(b) Did the boat incident contribute to an aggravation of his condition in a material degree?

(c) Did he give Comcare written notice of the injury as soon as practicable after he became aware of it?

2. Did his carrying weights in his vest and on his belt contribute to an aggravation of his condition to a significant degree?

3. Did that aggravation arise out of him carrying those weights?

decision

As to the boat incident, the Tribunal found:

1. The boat incident occurred as alleged;

2. Notice of the boat incident was given to Comcare on 31 March 2014, 11 years after the boat incident, when he submitted his claim for workers’ compensation in relation to the vest incident;

3. The Tribunal rejected the worker’s submissions that he gave notice of his injury to the AFP when he completed employment-related medical questionnaires in 2003 and 2004. On each of those occasions the worker stated he suffered from a back injury but there was nothing to indicate any such injury was connected with his employment.  In any event, the relevant ‘authority’ for the purposes of section 53 Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) was Comcare, not his employer.

4. Comcare was not liable to pay the worker compensation because the worker failed to give notice as soon as practicable after he became aware of the injury as required by section 53(1)(a) of the Act.

As to the vest incident, the Tribunal found:

1. The balance of the medical evidence was to the effect that wearing heavy equipment in a vest or on a belt was not likely to have caused or aggravated the pre-existing degenerative changes in the worker’s lumbar spine;

2. Accordingly, Comcare was not liable to pay the worker compensation. 


[1]     [2017] AATA 2161.