Auciello and Telstra Corporation Limited [2003] AATA 35 (16 January 2003)

Last Updated: 21 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 35

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/670

GENERAL ADMINISTRATIVE DIVISION )

Re MICHAEL AUCIELLO

Applicant

And TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date 16 January 2003

Place Sydney

Decision The Tribunal determines that the decision under review be affirmed.

[SGD] Dr J D Campbell Member

CATCHWORDS

Workers Compensation - hearing loss - cessation of work with employer in 1980 - compensation claim lodged over time - claim for non-economic loss in relation to permanent impairment lodged in early 2002 - whether claim for non-economic loss lodged out of time pursuant to section 27(3) of the Safety, Rehabilitation and Compensation Act 1988

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 sections 27(3), 124

Compensation (Commonwealth Government Employees) Act 1971 section 39

REASONS FOR DECISION

16 January 2003 Dr J D Campbell, Member

1. In this matter, Mr Michael Auciello ("the Applicant") seeks a review of the reconsideration decision dated 10 April 2002 which affirmed the decision of 6 March 2002 in which, in so far as this appeal is concerned found that Telstra ("the Respondent") was not liable to pay the Applicant compensation for non-economic loss in relation to permanent impairment in respect of permanent tinnitus and binaural hearing loss.

2. A hearing was held before the Tribunal in Sydney on 4 November 2002 at which the Applicant's son, Mr David Auciello represented his father. The Respondent was represented by Mr Kelly of Counsel.

3. The following material was placed into evidence before the Tribunal:

Exhibit Description Date

T1-T46 pp1 - 89 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975

R1 Respondent's Statement of Facts and Contentions 2 August 2002

R2 Reconsideration decision in accordance with section 62(1) of the Safety, Rehabilitation and Compensation Act 1988 29 October 2002

R3 Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2000

R4 Extract of the Second Reading Speech on the Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2000 by Mr Reith, Minister for Employment, Workplace Relations and Small Business. 7 December 2000

issues

4. The relevant issue in this matter is whether the Applicant is entitled to compensation for non-economic loss pursuant to section 27(3) of the Safety, Rehabilitation and Compensation Act 1988 ("SRC Act"), having regard to:

* section 39 of the Compensation (Commonwealth Government Employees) Act 1971 ("1971 Act");

* section 124 of the SRC Act;

* section 27(3), as inserted by amendments to the SRC Act, effective from 7 December 2000;

in relation to his accepted condition of 11.4 per cent binaural hearing loss, noting that the claim for non-economic loss was not received on or before 7 December 2000 (7 December 2000 being the date of introduction of the Bill for the Act that inserted section 27(3))

legislation

5. The relevant legislation in this matter is:

* Compensation (Commonwealth Government Employees) Act 1971 and in particular section 39;

* Safety, Rehabilitation and Compensation Act 1988 and in particular sections 27(3), 124.

background

6. On 26 June 2000, Dr P Di Michiel, Director of Audiology wrote to Mr N Karefylakis, Solicitor and Barrister, indicating that the Applicant had a binaural hearing loss of 17.4 per cent and tinnitus, both conditions likely to be of a permanent nature, with the hearing deficit being due to exposure to noise in the course of his employment with the Telstra (T3).

7. On 31 July 2000 Mr Karefylakis wrote to Comcare enclosing a duly executed claim for rehabilitation and compensation in relation to the Applicant's hearing loss and tinnitus (T4).

8. On 28 August 2000 the claim form was returned by Comcare to Mr Karefylakis, indicating that the employer's section must be completed and signed by the case manager or employer's representative, and that the claim form should be resubmitted via Telstra's personnel section, who will forward the claim to Comcare for registration and determination (T5).

9. On 30 August 2000 Mr Karefylakis forwarded the claim form to Telstra (personnel section) together with a copy of the letter from Comcare dated 28 August 2000 (T6). On 29 December 2000 Mr Karefylakis sent a fax to Ms Fennell at GIO attaching a copy of his letter to Telstra of 30 August 2000 (T7). Further exchanges of correspondence occurred between Mr Karefylakis and the GIO in late December 2000 (T8), followed by a further copy of the Applicant's claim being forwarded to the GIO upon their request on 30 March 2001 (T9).

10. On 11 April 2001 GIO requested further details of the Applicant's employment with Telstra, as Telstra had been unable to locate such, as well as details of further employment after leaving Telstra (T10).

11. On 8 May 2001 Mr Karefylakis provided details of the Applicant's employment with Telstra (6 January 1966 - 15 January 1980) and the details of the nature and duration of noise exposure (T11).

12. GIO requested arrangements be made for the Applicant to have his hearing tested with Australian Hearing Service on 10 July 2001 (T12), with an appointment arranged for 29 November 2001 (T13).

13. The Applicant was assessed at the Sydney Hearing Centre on 29 November 2001 and in his report Dr G Lucchese indicated that the Applicant had an 11.4 per cent binaural hearing loss and tinnitus that was totally related to his employment with Telstra (T19).

14. Liability was accepted by the Respondent for the Applicant's hearing loss in a determination dated 31 January 2002, in which it was stated that:

"Telstra Corporation is liable to pay compensation to the said Michael Auciello in accordance with sections 4, 6 and 14 of the Act in respect of 'hearing loss'. The date of injury deemed to be 26 June 2000". (T22)

15. On 7 February 2002 Mr Karefylakis rang GIO inquiring about the claim for permanent impairment, with GIO responding that a claim form for permanent impairment must be submitted (T24). On the same day GIO forwarded a letter to Mr Karefylakis enclosing a claim form and advice as to completion, including the completion of the non-economic loss questionnaire (T25).

16. The compensation claim for permanent injury and non-economic loss questionnaire were completed on 12 February 2002 (T26) and forwarded to GIO on 14 February 2002 (T27).

17. On 6 March 2002, the Respondent determined that the Applicant was entitled to payment of compensation for his binaural sensori neural hearing loss totalling $2,234.40 pursuant to section 39 of the 1971 Act and section 24 of the SRC Act. The Respondent also determined that the Applicant had no entitlement to payment in respect of non-economic loss, pursuant to section 39 of the 1971 Act and section 124 of the SRC Act (T30), with no reasons given for denying payment in respect of non-economic loss (T31).

18. On 18 March 2002 the Applicant wrote concerning failure to pay non-economic loss, indicating that he had made a claim for compensation in mid 2000, that the processing of his claim was held up through circumstances over which he had no control, that there were delays in the Respondent answering correspondence and that there were difficulties in arranging medical appointments. In essence the Applicant requested a reconsideration in which such issues raised would be taken into consideration (T32).

19. On 10 April 2002 a reconsideration determination affirmed the decision of 6 March 2002, with the reconsideration officer indicating, that not withstanding the Applicant's application for compensation commencing in July 2000, together with the difficulties experienced during its processing, a compensation claim for permanent impairment was not completed until 12 February 2002, which was sometime after the amendments to the Act came into force (T37).

submissions

applicant

20. Mr David Auciello, the Applicant's son and representative took the Tribunal through the history of this matter and emphasised that the Applicant through his solicitor had done all that was expected in lodging his claim for compensation in August 2000. It was the Applicant's contention that by virtue of the nature of the sensori neural hearing loss and that this being related to his earlier employment with Telstra, the Respondent should have responded recognising that the deafness was a permanent condition and provided the Applicant with the appropriate forms to complete at the very early stage of the claim initiation and certainly prior to 7 December 2000.

21. The Applicant's representative pointed to the various exchange of correspondence, the delays experienced in receiving an answer within the period 30 August 2000 - 29 December 2000 - 30 March 2001, highlighting the lack of responsiveness by the Respondent; the delays experienced in confirming the Applicant's employment with Telstra and the delays experienced in securing a medical appointment (29 November 2001). Further the Applicant's representative highlighted the Respondent's non responsiveness in waiting until the Applicant's solicitor pursued the issue of permanent impairments on 7 February 2002, which in turn resolved in completion of a compensation form for permanent impairment and non-economic loss on 12 February 2002.

22. The Applicant's representative contended that it was always the intention of the Applicant to seek compensation for permanent impairment and associated non-economic loss, when he entered his claim for compensation in July/August 2000; that the Respondent's failure to respond with the necessary information in a timely and correct fashion has resulted in the Applicant being deprived of a compensation benefit.

respondent

23. Counsel for the Respondent while sympathetic to the Applicant's intentions at the time of his claim for compensation and the frustration experienced by the Applicant in endeavouring to address his claim, submitted that despite any reservations that may be held about the processing of the claim, the claim for compensation for permanent impairment and non-economic loss was not completed until 12 February 2002 and forwarded to the GIO on 14 February 2002.

24. With the latter fact foremost, Counsel contends such completion and lodgement is some 14 months after the day by which such lodgment should have occurred, namely the 6 December 2000. Accordingly as the condition of hearing loss was considered permanent since January 1980 the Applicant is unable to access the benefits under section 27 of the SRC Act, pursuant to section 27(3) of the SRC Act.

consideration and findings

25. The Tribunal in this matter has been particular in detailing the history of events. A careful analysis of the chronological sequence of events details a situation where indeed the Applicant has not been well served in his attempt to secure compensation for a work related permanent hearing impairment. Further the Tribunal observes that for whatever reason dealing with the claim by the Respondent has extended over what appears to be an unreasonable period of time, during which there would appear to be instances of non responsiveness, a failure to pursue and a failure to adequately overview and assess the claim on its merits early in its initiation.

26. In addressing the particular issue, the Tribunal notes section 27(3) of the SRC Act, which states:

"This section does not apply in relation to a permanent impairment commencing before 1 December 1988 unless an application for compensation for non-economic loss in relation to that impairment has been made before the date of introduction of the Bill for the Act which inserted this subsection."

The Tribunal notes that this subsection became operative in October 2001 following enactment of the Bill.

27. The Tribunal further notes that the claim for permanent impairment and non-economic loss was not completed by the Applicant until 12 February 2002 and was forwarded to the Respondent on 14 February 2002. Clearly such a completion and lodgment is not consistent with the requirements of section 27(3) of the SRC Act, in that the date of introduction of the Bill which introduced the section was 7 December 2000. In so stating it is clearly evident to the Tribunal and the Tribunal so finds that the Applicant's hearing impairment was permanent by the time he left Telstra's employment in January 1980. In so finding the Tribunal relies upon the two medical opinions of Dr Di Michiel and Dr Lucchese.

28. While the Tribunal has expressed particular concerns about the processing of the Applicant's claim for compensation, the Tribunal is left with no other alternative than to conclude that the Applicant has failed to satisfy section 27(3) of the SRC Act. Accordingly the Tribunal finds that the Applicant is not entitled to compensation in respect of non-economic loss pursuant to section 27 of the SRC Act, having regard to section 39 of the 1971 Act and section 124 of the SRC Act.

determination

29. The Tribunal determines that the decision under review be affirmed.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of DR J D CAMPBELL, Member

Signed: H Sim .....................................................................................

Associate

Date of Hearing 4 November 2002

Date of Decision 16 January 2003

Representative for the Applicant Mr David Auciello

Counsel for the Respondent Mr Kelly