Employer not liable to pay compensation where notice of injury is not provided as soon as practicable

Date: September 12, 2024

Bith and Telstra Corporation Limited (Compensation) [2023] AATA 3612.

Key Points:

• The Tribunal was required to consider whether Mr Bith provided notice of injury as soon as practicable after he became aware of the injury.
• If Mr Bith suffered an injury, did his employment with Telstra contribute to or aggravate his condition to a significant degree.
• Did Mr Bith suffer an injury in the course of his employment with Telstra.

Background:

Mr Bith was previously employed by Telstra Corporation Limited (Telstra). On 15 December 2021, he submitted a claim for workers’ compensation for arm, shoulder and neck pain that he first experienced in 2010. He stated he first sought medical treatment for the claimed condition on 23 February 2016.

On 28 April 2022, Telstra declined liability to pay compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) in respect of “injury to arms, shoulder and neck”. This decision was affirmed by reconsideration dated 20 July 2022.

The Law:

Section 14 of the SRC Act provides that the employer is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

An injury is defined under section 5A of the SRC Act as an injury arising out of, or in the course of, an employee’s employment.

A disease is defined under section 5B of the SRC Act as an ailment, or an aggravation of an ailment, which has been contributed to, to a significant degree, by the employee’s employment.

Section 53 of the SRC Act requires that notice of injury must be provided as soon as practicable after an employee becomes aware of the injury.

Conclusion:

The Tribunal was satisfied that the weight of the medical evidence pointed to Mr Bith suffering from right sided arm and shoulder pain and accepted that Mr Bith was suffering from underlying pathology. However, he Tribunal found that Mr Bith did not suffer from a disease as defined in the SRC Act and applied the concept of an “injury” outlined in the case of Canute v Comcare (2006) 226 CLR 535.  The Tribunal explained there was a lack of any corroborating or contemporaneous evidence to support Mr Bith’s contention that the long term impact of the physical nature of his work at Telstra resulted in his claimed condition. Further, the Tribunal considered it was implausible that Mr Bith only made a connection with his pain and his employment following Centrelink advising him to make a claim for workers compensation. Mr Bith contended that he did not comprehend the gradual onset of his pain was work related; the Tribunal disagreed. Rather, the Tribunal found that Mr Bith’s evidence showed he had considered there was a connection between his right arm/hand pain and his employment. The Tribunal accepted Telstra’s contention that Mr Bith suffered from a condition but could not confirm the relationship of Mr Bith’s claimed condition and his employment based on the lack of medical or factual information.

The Tribunal found that Mr Bith failed to notify Telstra as soon as practicable after he became aware of his injury. In reaching this conclusion, the Tribunal noted the following:

1. The Tribunal considered the decision of Ellison v Comcare [2022] FCA 95 where it was accepted that s 53 of the SRC Act imposes preconditions upon the Tribunal when deciding a claim for compensation.
2. Mr Bith failed to appropriately inform Telstra as the nature of the claimed condition and its connection to his employment. The Tribunal noted he did not provide medical certificates to Telstra at the time of his claimed injury that contained medical opinions of his injury. The Tribunal further found Telstra had not been provided a fair opportunity to investigate the claim. In addition, the Tribunal found this lack of contemporaneous evidence harmed the “orderly process of administration contemplated by the Act”.
3. The Tribunal found that Mr Bith’s delay in making his claim had prejudiced Telstra on the basis that it had lost the opportunity to investigate his allegations, arrange for him to be medically examined at the time, provide him with modified duties, ergonomically designed solutions for his issues and/or rehabilitation.

Accordingly, the reviewable decision was affirmed.

Lessons Learnt:

The decision confirms that liability to pay compensation may be refused in the circumstances where the applicant does not provide notice as soon as practicable after becoming aware of their injury.

Contact:

Caitlin Jenkins                                                                        Claire Tota
Paralegal                                                                                   Partner
Direct:  0439 603 251                                                            Direct: +61 (8) 9265 6011
Caitlin.Jenkins@hbacrawford.com.au                         Claire.Tota@hbacrawford.com.au

Download here:  Bith and Telstra Corporation Limited

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