Long and Comcare [2003] AATA 116 (7 February 2003)

Last Updated: 7 February 2003

DECISION AND REASONS FOR DECISION [2003] AATA 116

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2002/857

GENERAL ADMINISTRATIVE DIVISION	)
	Re	GRAHAM LONG

Applicant

And

COMCARE

Respondent

DECISION

Tribunal

Mr R G Kenny, Member

Date 7 February 2003

Place Brisbane

Decision

The Tribunal affirms the decision under review.

(Sgd)

Mr R G Kenny

Member

CATCHWORDS

WORKER'S COMPENSATION - alleged injury occurring prior to commencement of Safety, Rehabilitation and Compensation Act 1988 - transitional provisions - whether notice of injury given as soon as practicable under Commonwealth Employees Compensation Act 1930 - whether Commonwealth prejudiced by want of notice - whether want of defect of notice due to mistake of other reasonable cause - failure to make claim within specified period - whether failure to make claim due to mistake of other reasonable cause

Commonwealth Employees Compensation Act 1930 sections 9, 16

Safety, Rehabilitation and Compensation Act 1988 section 124

Commonwealth v Connors (1989) 86 ALR 247

Re Muras and Department of Defence (1998) 52 ALD 579

Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534

Roles v Pascall & Sons [1911] 1 KB 982

Stevenson v Metropolitan Meat Industry Commission (1936) 37 SR(NSW) 109

Telstra Corporation v Roycroft [1997] FCA 774

Re Willis and Australian Telecommunications Commission (1989) 19 ALD 665

Re Harbutt and Department of Defence (1998) 51 ALD 159

REASONS FOR DECISION

7 February 2003

Mr R G Kenny, Member

BACKGROUND

1. On 15 February 2002, Graham Long (the applicant) completed a "Claim for Rehabilitation and Compensation" for injuries which he described as "cervical spondylosis" and "lumbar spondylosis". He stated in that form that the injuries occurred in 1957 and 1962, respectively, whilst he was serving as a member of the Royal Australian Navy.

2. On 28 March 2002, a delegate with the Military Compensation and Rehabilitation Service determined that the claim should be disallowed and, on 23 September 2002, another delegate affirmed the initial decision.

3. On 8 October 2002, the applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal) and the matter is to be determined under the Administrative Appeals Tribunal Act 1975.

APPEARANCES

4. The applicant spoke to the Tribunal by telephone. He was not represented. Mr C Clark of counsel appeared on behalf of Comcare (the respondent).

5. The following material was tendered and taken into evidence:

Exhibit 1: the T documents (T1-T17);

Exhibit 2: an affidavit, dated 24 January 2003, by Paul Ontong; and

Exhibit 3: a letter, dated 2 December 2002, from the applicant with attachments viz

§ a letter, dated 3 March 1992, from John Taylor, solicitor;

§ a memorandum of advice, dated 6 September 1991, from R D Back, barrister; and

§ a medical report from Dr P Sandstrom, neurologist, dated 18 February 1991.

LEGISLATIVE FRAMEWORK AND ISSUE FOR DETERMINATION

6. The Safety, Rehabilitation and Compensation Act 1988 (the 1988 Act) makes provision for compensation to be paid by the Commonwealth in relation to work-related injuries or diseases to be paid to nominated classes of Commonwealth employees, including those serving in the Royal Australian Navy, where the injury occurred after the commencement date of the 1988 Act. This was 1 December 1988.

7. The Act also contains transitional provisions which pertain to injuries that occurred prior to that date. In that regard, section 124 of the 1988 Act, in so far as relevant, reads:

"124 Application of Act to pre-existing injuries

(1) Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.

(1A) Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.

(2) A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:

(a) where the injury, loss or damage was suffered before the commencement of the 1930 Act--under the 1912 Act;

(b) where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act--under the 1930 Act as in force when the injury, loss or damage was suffered; or

(c) in any other case--under the 1971 Act as in force when the injury, loss or damage was suffered.

...

(10)Where:

(a) proceedings for the recovery of compensation under the 1912 Act, in respect of any injury suffered before the commencement of the 1930 Act, were not maintainable by a person because of section 5 of the 1912 Act;

(b) a claim for compensation by a person under the 1930 Act, in respect of an injury suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act, was not admissible because of section 16 of the 1930 Act; or

(c) a claim for compensation by a person under the 1971 Act, in respect of an injury suffered after the commencement of the 1971 Act but before 1 July 1986, was not admissible because of section 54 of the 1971 Act, as that section was in force before 1 July 1986;

that person is not entitled to compensation under this Act in respect of that injury."

8. The 1930 Act, as referred to in that provision, is the Commonwealth Employees Compensation Act 1930. The applicant claimed that his cervical spondylosis and lumbar spondylosis developed during his service in the 1950s and 1960s. That period is embraced by the 1930 Act. Under section 9 of the 1930 Act, the injury must have arisen out of or occurred in the course of employment with the Commonwealth. However, a time-frame for giving notice of and for making claim for the injury was set down in sub- section 16(1) of the 1930 Act which reads:

"16(1) The Commissioner shall not admit a claim for compensation under this Act for an injury unless notice of the accident has been served upon him as soon as practicable after it has happened, and before the employee has voluntarily left the employment of the Commonwealth, and unless the claim for compensation has been made-

(a) within six months from the occurrence of the accident; or

(b) in the case of death - within six months after advice of the death has been received by the claimant;

Provided always that -

(i) the want or any defect or inaccuracy in the notice shall not prevent consideration of the claim by the Commissioner if he finds that the Commonwealth is not prejudiced by the want, defect or inaccuracy, or that the want, defect or inaccuracy was occasioned by mistake, absence from Australia or other reasonable cause; and

(ii) the failure to make a claim within the period above specified shall not prevent consideration of the claim by the Commissioner if he finds that the failure was occasioned by mistake, absence from Australia or other reasonable cause."

9. The issue for the Tribunal is whether the circumstances of the applicant meet the requirements of that provision. In the event that this provision is not satisfied, the applicant's claim will not be considered under the Commonwealth compensation legislation.

EVIDENCE

10. The applicant served in the Royal Australian Navy from April 1956 until August 1962 and he also rendered a further period of service with the Navy Reserve until 1972. His entry medical examination, dated 4 April 1956, records him as having no back problems (PT8-22). During his service, on 6 October 1959, he reported lower back pain for twelve months which was described as "coming on after he has been laying down a couple of hours" (T8-18). He was seen by a surgical specialist who reported, on 10 February 1960, that there was "no injury" but that there was pain while he was lying on his back and that this was relieved by lying on his side (PT8-28). X-rays were taken at that time and the report, dated 23 February 1960, reads: "No osseous lesion detected. Disc spaces appear normal" (PT8-29). After again consulting with the specialist, the applicant was required to undertake "active exercises three times per week". On further consultation, on 24 May 1960, it was noted that he had full back movement and he was returned to duty (PT8-33). A medical examination record completed on 19 August 1962, at the time of his discharge from full-time duty, records his spine as being "normal" (PT8-39), and, at that time, he completed a declaration that he had not suffered an injury during his service and that he did not wish to claim a pension (PT8-38). Medical examination records, dated 17 July 1970 (PT8-36) and 12 February 1972 (PT8-35) which were completed during Navy Reserve service, record the applicant's spine as being "normal".

11. In relation to his lumbar spondylosis, the applicant said that he injured his back whilst manoeuvring a heavy field gun over various obstacles during training at HMAS Flinders. He felt pain at the time which he tolerated until about 1960 when he sought treatment at Balmoral. He also said that he has had "consistent pain, either severe or tolerable" since the incident (T6-14). In relation to his cervical spondylosis, he said that he injured his upper back in 1960 when he was "thrown against a side-rail after slipping on a wet ladder step" on board HMAS Bass during rough seas at night. The applicant said that he had attempted to contact fellow sailors who were serving with him at the times of these incidents. In particular, this included Roy McNabb who had been a member of the gun crew in 1957 and this included telephoning him at his last known contact point in Bendigo. In all of these attempts, the applicant had not been successful.

12. Whilst acknowledging that his service medical records do not make reference to an injury or to either of these events, the applicant said that he had made medical staff aware of them and did not know why the information had not been recorded. In respect of his lack of declaration of an injury at the time of his discharge from full-time Navy service, the applicant said that he was eager to get back to his family and so made the process as speedy as he could.

13. The applicant said that, after leaving the Navy and until about 1980, he was treated for his back problems by Dr Mr W Bolton in Mackay and by a chiropractor, Mr J Tetley. He said that records were no longer available from either of these sources. Since then, he has been treated by Dr R Howard and, again, he has not been able to obtain any information from her as she has closed her practice.

14. The applicant said that, at the time of his Navy service, he was not aware of any compensation scheme which would have enabled him to make a claim in relation to his injuries. In a letter, dated 11 June 2002, he said that he had been unaware of the Commonwealth compensation legislation until a week before he wrote the letter (T12-45). He said that there was no culture of claiming compensation in the 1950s and 1960s. The only explanation that the applicant gave in his evidence for the lateness of his claim was that he had been in employment until recently and that this meant that, over the years since his discharge from the Navy, he had always been able to meet the costs associated with any medical treatment. He said that this situation had changed in recent years with his cessation of employment.

15. The applicant has suffered injuries to his back in post-service years. In 1975, he "aggravated" it when working as a coal sampler (Exhibit 2) and, in 1988, again hurt his lower back in a fall while carrying out the duties of a port officer in the Mackay area. This last injury necessitated surgical intervention in Townsville in 1988 and he subsequently received a payment in excess of $42,000 for the associated impairment in a Workcover claim (attachment to Exhibit 2).. The applicant said that he had explained to his legal advisers in the course of that litigation that he had injured his back in the Navy and he said that this resulted in a reduction in the amount of compensation he was paid. However, he also said that he was not given any advice about the prospect of making a claim under the 1988 Act or the 1930 Act for the 1957 or 1962 incidents.

16. As part of the investigations associated with his treatment after the surgery he underwent following upon the injury in 1988, the applicant was seen by neurologist, Dr P Sandstrom, who prepared a report, dated 18 February 1991 (attachment to Exhibit 3). There, Dr Sandstorm recorded the details of the fall in 1988 and made reference to pre-existing spinal disease. However, no reference was made to the nature or cause of the pre-existing condition and, indeed, Dr Sandstrom included the following comment:

"Essentially, he related that he had enjoyed excellent health up until 3. 3. 88 at which time, during the course of his occupational duties as port officer with the Harbours and Marine Department at Hay Point, he was descending a flight of stairs in relative darkness and slipped, incurring an injury to his sacral region."

17. Dr Sandstrom also stated that the applicant's only other past medical history was in respect of a carpal tunnel decompression in 1988.

CONSIDERATION

18. Sub-section 16(1) of the 1930 Act requires, first, that notice of an accident be given as soon as practicable after it has happened and before the employee voluntarily left the employment of the Commonwealth and, secondly, for a claim for compensation to be made within six months from the occurrence of the accident. The applicant does not satisfy those requirements as did not give notice of either the 1957 or 1962 accident under the Act or make a claim in relation to either accident until many years after both the cessation of his service with the Commonwealth and after the six months period set down by sub-section 16(1) of the 1930 Act. Nonetheless, that, alone, does not preclude the Commissioner from admitting the claim, in the sense of entertaining the claim (see Re Muras and Department of Defence (1998) 52 ALD 579 at 582), under that provision. It may still be considered by the Commissioner if the Commonwealth is not prejudiced by the lateness of the notice and if the lateness of the notice or claim was occasioned by mistake, absence from Australia or other reasonable cause.

19. Mr Clark submitted that the Commonwealth would be prejudiced by the lateness of the claim and referred to the affidavit of Mr Ontong (Exhibit 2) to support that position. Mr Ontong is Director of Appeals with the Military Compensation and Rehabilitation Service and he stated:

§ "the Commonwealth has been unable to properly investigate the circumstances with respect to the applicant's alleged condition;

§ the applicant has apparently been suffering from his back condition for over forty years;

§ the respondent has not been provided with medical records and reports relating to the applicant's conditions between the time he left the service until he lodged his claim for compensation;

§ the applicant has advised that he is unable to provide the medical records of Dr Bolton who treated him on discharge;

§ the applicant has also advised that he is unable to obtain the medical records of Dr Rosemary Howard, his current treating practitioner, as Dr Howard has closed her surgery;

§ the applicant's treating chiropractor has passed away and is therefore unable to provide any records of the applicant's condition;

§ the applicant is of the view that the events that caused his condition occurred over 40 years ago in 1957 and 1962. It is now virtually impossible for the Commonwealth to find evidence and/or witnesses to corroborate the applicant's evidence in this regard given the time that has elapsed;

§ in particular, the applicant has been unsuccessful in contacting Mr R McNabb who apparently witnessed the 1957 incident;

§ in 1988, the applicant brought legal proceedings against the state of Queensland (Workcover) in relation to a back injury. The applicant received a settlement of $42,131.45 after payment of legal fees and outlays, Medibank Private and the Workers' Compensation Board of Queensland."

20. Finally, Mr Ontong said that the Commonwealth had lost the opportunity to verify or properly investigate the issue and the circumstances that gave rise to the applicant's claim.

21. In relation to the issue of prejudice to the respondent, I note the decision of the Tribunal in the Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534 where, at 535, the following reference is made to the purpose of the notice requirement as it appears in sub-section 53(1) of the 1988 Act which is not materially different from the provision under consideration in the 1930 Act:

"Section 53 is clearly intended to protect the Commonwealth and its instrumentalities from being placed in a situation where they are unable to disprove an employee's assertion of an injury alleged to have occurred on some specific occasion in the course of the employee's work or of a disease contracted because of some brief and transient situation. Some such provision is clearly needed to prevent abuse of the Act."

22. The applicant has given inconsistent evidence in relation to his reporting of the 1957 and 1962 incidents. He said that he had advised doctors who examined him during his service for the purposes of treatment and periodic assessment, including at the point of discharge from the Navy, that he had received injuries. However, the Surgeon Commander who saw him in February 1960, specifically in relation to his back problem, recorded the he had had "no injury" (PT8-28). There is an absence of reference to a back problem in discharge medical records and a specific denial by the applicant in a discharge medical record, dated 1 August 1962, that he had suffered an injury on service (PT8-38).

23. His evidence also lacks consistency in relation to his accounts of the history of symptoms that he has experienced in relation to his back problems since Navy service. He stated that he has been receiving on-going medical treatment from Dr Bolton, Dr Howard and chiropractor, Mr J Tetley. Yet, the report of Dr Sandstrom, which pertained specifically to his back condition, described the applicant as having excellent health until 1988.

24. Those inconsistencies in the applicant's evidence have particular significance in this matter as they raise doubts about the veracity of the applicant's claim. Of course, in the normal and timely course of events, these matters may be tested by the respondent after seeking independent evidence. However, the evidence relevant to that process is not available. The applicant has not been able to obtain medical records or, indeed, statements of witnesses. In that situation, I am satisfied that the respondent would not be able to do so and I am also satisfied that the lack of timely notice of the applicant's accidents would result in prejudice to the Commonwealth if the applicant`s claim were to be considered.

25. The finding of prejudice to the Commonwealth because of lack of timely notice is sufficient to dispose of the matter. However, for completeness, I have considered the other matters in sub-section 16(1) of the 1930 Act. In addition to the matter of prejudice in respect of lateness of notice, sub-section 16(1) of the 1930 Act also makes reference to such lateness and also the lateness of the claim being due to mistake, absence from Australia or other reasonable cause.

26. In relation to mistake, the Commonwealth compensation legislation distinguishes between ignorance and mistake, with only the latter being of relevance under the 1930 Act. The distinction between the two concepts was referred to in Telstra Corporation v Roycroft [1997] FCA 774 by North J who described the relevant authorities as establishing the following propositions:

"1. A person who is not aware of a right to claim compensation at all is not mistaken about the right, but ignorant of it: Roles v Pascall & Sons [1911] 1 KB 982.

2. A person who knows that he has a right to claim compensation for one sort of injury, but no idea whether or not he has a right to claim for another, is not mistaken as to his right to claim for the second type of injury, but is ignorant of it: Commonwealth of Australia v Connors (1989) 86 ALR 247.

3. A person who knows he has a right to claim compensation for one sort of injury, and wrongly believes that he has no right to claim for another type of injury, is mistaken as to the right to claim for the second type of injury: Stevenson v Metropolitan Meat Industry Commission (1936) 37 SR (NSW) 109.

4. It follows from these authorities that a person who knows he has a right to claim compensation for the particular injury and knows that the time for making the claim is limited, but wrongly believes he has more time to make a claim than the Act allows, is mistaken as to the time for making the claim."

His Honour went on to point out that there was a thin line between mistake and ignorance but said:

"If a person acts on the basis of knowledge of the Act and that knowledge is wrong, or the facts upon which the person relies are wrong, then the person has made a mistake. If a person acts without any knowledge about the Act or an aspect of it, and consequently does not know whether or not it applies, then the person is ignorant."

27. The evidence of the applicant in this case is that he was unaware of the Commonwealth compensation scheme or the legislation which makes provision for it until shortly before the making of his claim in 2002. This is despite his involvement in 1988/9 with legal practitioners whom, on his evidence, he advised of his accidents on Navy service. I am satisfied that this constitutes ignorance of his rights under the Act rather than a mistake.

28. The issue of the applicant's absence from Australia does not arise in this case. As to any other reasonable cause for the applicant's delay in giving notice or making a claim for his injuries, there must be a nexus between the "reasonable cause" and the delay: see Re Willis and Australian Telecommunications Commission (1989) 19 ALD 665 at 673, 674 and Re Harbutt and Department of Defence (1998) 51 ALD 159 at 163. Also, there must be evidence of something more than mere ignorance before reasonable cause will arise: see Commonwealth v Connors (1989) 86 ALR 247 at 252 and Re Harbutt (above) at 165. Further, it is in the period of six months referred to in sub-section 16(1) of the 1930 Act that one must look for reasonable cause: see Re Willis (above) at 672 and Re Muras and Department of Defence (1998) 52 ALD 579 at 584. In Re Willis (above) at 675, the Tribunal held that the test for whether there was reasonable cause in a given situation was one "not judged by reference to some hypothetical man in hypothetical circumstances" but, rather, one that involved an objective test taking into account the subjective circumstances of the applicant.

29. I am satisfied that there is nothing to assist the applicant in his contention that he was able to fund his own medical treatment because of his employment status. Apart from the lack, noted above, of supportive evidence of any such treatment, it can not be said that this was anything more than coincidental to the existence of a potential compensation claim. In reality, it was the applicant's lack of knowledge of the availability of the claim procedure that was the reason for his delay both in the six months after each accident and in subsequent years.

30. In this case, the requirements of sub-section 16(1) of the 1930 Act have not been met. It follows that the applicant's claim is not to be considered. Accordingly, the decision under review must be affirmed.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member

Signed: Sarah Oliver

Associate

Date of Hearing 30 January 2003

Date of Decision 7 February 2003

The Applicant Appeared in Person

Counsel for the Respondent Mr C J Clark

Solicitor for the Respondent Phillips Fox