Peterson and Comcare [2003] AATA 74 (24 January 2003)

Last Updated: 24 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 74

ADMINISTRATIVE APPEALS TRIBUNAL ) No N2001/1051, N2001/1601

) N2001/1602,N2001/1603

GENERAL ADMINISTRATIVE DIVISION ) N2001/1604

Re Robert Peterson

Applicant

And Comcare

Respondent

DECISION

Tribunal Ms S M Bullock, Senior Member Dr P D Lynch, Member

Date 24 January 2003

Place Sydney

Decision The decisions under review are affirmed.

..............................................

Ms S M Bullock

Presiding Member

CATCHWORDS

WORKERS COMPENSATION - Transitional Provisions - Incapacity - Whether Notice of Injury and Claim for Compensation Served within Time - Whether Want or Defect of Notice or Claim Occasioned by Mistake or Other Reasonable Cause - Distinction Between Mistake and Ignorance.

LEGISLATION

Commonwealth Employees' Compensation Act 1930 ss9, 16

Compensation (Commonwealth Government Employees) Act 1971 ss27, 53, 54

Safety, Rehabilitation and Compensation Act 1988 ss62, 123, 123A, 124

AUTHORITIES

Commonwealth of Australia v Connors (1989) 86 ALR 247; (1989) 17 ALD 313

Scott-Holland v Commonwealth of Australia (1983) 46 ALR 328

Secretary of the Department of Veterans' Affairs v Studdert [2001] FCA 1642

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

Telstra Corporation Limited v Roycroft (1997) 77 FCR 358

Banks v Comcare Australia, Federal Court, 22 May 1996, 118/1994

Johnston v The Commonwealth (1982) 150 CLR 331

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

REASONS FOR DECISION

24 January 2003 Ms S M Bullock, Senior Member Dr P D Lynch, Member

1. This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by the Applicant, Mr Robert Peterson of five reviewable decisions made on:

(a) 27 May 2001 (T10, N2001/1051) by a Delegate of the Respondent, Comcare, that affirmed a determination dated 21 February 2001 (T5, N2001/1051) to cease liability for the condition of "haematoma right quadriceps" on and from 15 September 1982;

(b) 7 September 2001 (T16, N2001/1601) which affirmed a determination of 29 May 2001 (T13, N2001/1601) which denied liability for compensation for a fractured neck;

(c) 7 September 2001 (T9, N2001/1602) which revoked a determination of the Respondent dated 21 May 2001 (T6, N2001/1602) which accepted liability for dislocated left shoulder with effect from 7 August 1978 ceasing liability from 27 September 1982;

(d) 7 September 2001 (T9, N2001/1603) which revoked a determination dated 24 May 2001 (T7, N2001/1603) which accepted the claim for dislocated right shoulder with effect from 4 September 1966 ceasing liability on 15 September 1982;

(e) 7 September 2001 (T9, N2001/1604) which revoked a determination of 21 May 2001 (T7, N2001/1604) which accepted liability for a broken third and fourth fingers of the right hand with effect from 8 June 1970 ceasing liability on 15 September 1982.

2. A Hearing was held in Sydney on 28 May 2002. Mr Peterson was self-represented. The Respondent was represented by Mr G Johnson of Counsel. Oral evidence was provided by Mr Peterson in addition to evidence provided by Dr J A Connolly, General Surgeon. Documents were lodged and taken into evidence pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents": N2001/1051, T1-T10; N2001/1601, T1-T16; N2001/1602, T1-T9; N2001/1603, T1-T9; N2001/1604, T1-T9). The following exhibits were taken also taken into evidence:

Exhibit Number Description Date

A1 Letter to the Administrative Appeals Tribunal from Mr R Peterson in relation to an appeal for dislocated left shoulder 16 December 2001

A2 Letter to the Administrative Appeals Tribunal from Mr R Peterson in relation to broken third and fourth fingers of the right hand, including attachments 16 December 2001

A3 Letter to the Administrative Appeals Tribunal from Mr R Peterson in relation to an appeal for dislocated right shoulder, including attachments 16 December 2001

A4 Letter to the Administrative Appeals Tribunal from Mr R Peterson in relation to an appeal for haematoma right thigh muscles, including attachments 18 September 2001

A5 Letter to the Administrative Appeals Tribunal from Mr R Peterson in relation to an appeal for a fractured neck, including attachments 18 December 2001

A6 Letter from Mr J Morgan Undated

A7 Letter from Mr B Askitis, including attachments 15 May 2002

A8 RAAF Health Statement concerning Mr R Peterson 6 September 1971

A9 Department of Veterans' Affairs Facts - "Military Compensation and Rehabilitation Service - Overview of the Military Compensation Scheme"

A10 RAAF Outpatient Consultation Record 15 September 1967 and 22 September 1967

R1 Respondent's Amended Statement of Facts and Contentions 22 May 2002

R2 RAAF Outpatient Clinical Records Various

R3 Special Examination Request Report 7 August 1978

R4 Report of Dr J A Connolly, General Surgeon 16 October 2001

R5 Report of Dr J A Connolly, General Surgeon 22 January 2002

R6 Report of Dr J A Connolly, General Surgeon 15 February 2002

ISSUES

3. There are a number of issues for determination in this matter.

(a) Whether or not Mr Peterson's claim for haematoma of the right thigh muscles is precluded by the operation of section 16 of the Commonwealth Employees' Compensation Act 1930, because it was lodged out of time, and, if not, whether or not Mr Peterson's present condition is contributed to in any way by the original injury (N2001/1051);

(b) Whether or not Mr Peterson's claim for fracture of the neck is precluded by the operation of section 16 of the Commonwealth Employees' Compensation Act 1930 because it was lodged out of time, and, if not, whether Mr Peterson's current neck condition is contributed to in any material way by his service with the Royal Australian Airforce ("RAAF") (N2001/1601);

(c) Whether or not Mr Peterson suffered a work related injury of a dislocated left shoulder and whether or not his current left shoulder condition is contributed to in a material way by his service with the RAAF (N2001/1602);

(d) Whether or not Mr Peterson's claim for dislocated right shoulder is precluded by section 16 of Commonwealth Employees' Compensation Act 1930 because it was lodged out of time, and if not, whether or not Mr Peterson's right shoulder condition is contributed to in a material way by his RAAF service (N2001/1603);

(e) Whether or not Mr Peterson's claim for injury to the third and fourth fingers of his right hand is precluded by the operation of section 16 of the Commonwealth Employees' Compensation Act 1930 because it was lodged out of time, and if not, whether or not Mr Peterson's condition in relation to the third and fourth fingers of his right hand is related in a material way to his employment with the RAAF (N2001/1604);

LEGISLATION

4. A determination in this matter requires consideration of three pieces of legislation namely the Commonwealth Employees' Compensation Act 1930 ("the 1930 Act"); the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act"); and, the Safety, Rehabilitation and Compensation Act 1988 ("the 1988 Act").

5. Mr Peterson made claims for five conditions under the provisions of the 1988 Act. Four of the claimed conditions occurred during the period under which the 1930 Act was in operation. Section 124 of the 1988 Act deals with transitional provisions and provides that specifically under subsection 124(2)(b), that Mr Peterson's circumstances in relation to the injuries of haematoma right thigh muscles, dislocation of the right shoulder, fractured neck and broken third and fourth fingers of the right hand, fall to be determined under the 1930 Act. If Mr Peterson is unable to succeed under the 1930 Act, he is unable to succeed under the 1988 Act. A similar requirement relates to the claim for dislocation of the left shoulder which must be considered, given the provisions of subsection 124(2)(c) of the 1988 Act, under the 1971 Act as in force when this injury occurred.

6. In relation to the four conditions covered by the 1930 Act, a threshold issue is whether or not there has been compliance with section 16 of the 1930 Act. Section 16 of the 1930 Act states as relevant:

"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 case of death - within six months after advice of the death has been received by the claimant:

Provided always that -

(i) the want of 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.

..."

7. The claim for the injury of dislocated left shoulder occurred in 1978 and accordingly calls for consideration under the 1971 Act. At the relevant time, sections 53 and 54 of the 1971 Act covered notices of injury and claims for compensation. As relevant, section 53 of the 1971 Act stated:

"Notice to Commonwealth of injury, disease or loss of or damage to property.

53. (1) This Act does not apply in relation to an injury caused to an

employee unless notice in writing of the injury was served, as prescribed, on

the Commonwealth-

(a) as soon as practicable after the occurrence of the injury;

(b) if the employee was not, immediately after the injury, aware that he had sustained an injury-as soon as practicable after he became so aware; or

(c) if the employee died without having become so aware or before it was practicable to serve such a notice-as soon as practicable after his death.

(2)This Act does not apply in relation to a disease contracted, or an

aggravation, acceleration or recurrence of a disease suffered, by an employee

unless notice in writing of the contraction of the disease, of the

commencement of the aggravation or acceleration of the disease or of the

recurrence of the disease, as the case may be, was served, as prescribed, on

the Commonwealth-

(a) as soon as practicable after the employee became aware of the contraction of the disease, of the commencement of the aggravation or acceleration of the disease or of the recurrence of the disease; or

(b) if the employee died without having become so aware or before it was practicable to serve such a notice-as soon as practicable after his death.

(3) This Act does not apply in relation to loss of, or damage to, an

artificial limb or other artificial substitute, or a medical, surgical or

other similar aid or appliance, used by an employee, being a loss or damage

that arose in circumstances referred to in section 28, unless notice in

writing of the accident that resulted in the loss or damage was served, as

prescribed, on the Commonwealth-

(a) as soon as practicable after the occurrence of the accident;

(b) if the employee was not, immediately after the accident, aware that the accident had resulted in the loss or damage-as soon as practicable after he became so aware; or

(c) if the employee died without having become so aware or before it was practicable to serve such a notice-as soon as practicable after his death.

(4) Where-

(a) a notice purporting to be a notice referred to in a preceding sub-section of this section has been served on the Commonwealth;

(b) the notice, as regards the time of service or otherwise, failed to comply with the requirements of that sub-section; and

(c) the Commonwealth would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause,

the notice shall be deemed to have been served in accordance with that sub-section.

..."

8. Section 54 of the 1971 Act stated, as relevant:

"Time for making claims for compensation.

54. (1) Compensation in relation to an employee is not payable under this Act to a person unless a claim in writing for the compensation was served, as prescribed, on the Commissioner by or on behalf of the person within the prescribed period. Amended by No. 166, 1976, s. 8.

(2) If the claimant is the employee, the prescribed period for the purposes of the last preceding sub-section is-

(a) in the case of a claim in relation to an injury to the claimant-

(i) the period of six months commencing on the day of the injury; or

(ii) if the claimant was not, immediately after the injury, aware that he had sustained an injury-the period of six months commencing on the day on which he became so aware;

(b) in the case of a claim in relation to a disease contracted, or an aggravation, acceleration or recurrence of a disease suffered, by the claimant-the period of six months commencing on the day on which the claimant became aware of the contraction of the disease, of the commencement of the aggravation or acceleration of the disease or of the recurrence of the disease; or

(c) in the case of a claim in relation to loss of, or damage to, an artificial limb or other artificial substitute, or a medical, surgical or other similar aid or appliance, used by the claimant, being a loss or damage that arose in circumstances referred to in section 28-

(i) the period of six months commencing on the day of the occurrence of the accident that resulted in the loss or damage; or

(ii) if the claimant was not, immediately after the accident, aware that the accident had resulted in the loss or damage-the period of six months commencing on the day on which he became so aware. Amended by No. 166, 1976, s. 8.

...

(6) Where-

(a) a claim purporting to be a claim referred to in sub-section (1) has been served on the Commissioner;

(b) the claim, as regards the time or manner of service, failed to comply with the requirements of that sub-section; and

(c) the Commonwealth would not, by reason of the failure, be prejudiced if the claim were treated as a sufficient claim, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause, the claim shall be deemed to have been served in accordance with that sub-section.

..."

BACKGROUND

9. The information contained within is by way of background and is not disputed.

* Mr Robert Peterson was born on 11 June 1945 and enlisted in the RAAF on 28 June 1962. He was discharged from the RAAF, having attained the rank of Sergeant, on 27 September 1982.

Dislocated Right Shoulder

* On 4 September 1966, Mr Peterson dislocated his right shoulder playing rugby union. He was hospitalised for approximately 14 days. Mr Peterson made a claim for this condition on 5 December 2000 (T5, N2001/1603). On 24 May 2001, the Respondent accepted Mr Peterson suffered an injury but was not liable to pay compensation from 15 September 1982 (T7, N2001/1603). Mr Peterson requested a reconsideration and on 7 September 2001 the Reconsideration Officer noted that the request for reconsideration was not made within 30 days as required by subsection 62(3) of the 1988 Act, but determined to waive the need for strict compliance. Noting section 16 of the 1930 Act, the Reconsideration Officer determined that under section 16 of the 1930 Act, in light of the fact that almost 35 years had passed since the incident causing a right shoulder dislocation, the late lodgement of Mr Peterson's claim had prejudiced the Commonwealth by denying it the opportunity to locate or obtain contemporaneous evidence from medical personnel involved in his treatment. Furthermore, the Officer noted that the available evidence did not indicate that Mr Peterson's failure to lodge a claim was due to a mistake, absence from Australia or some other reasonable cause. The Reconsideration Officer noted that Mr Peterson had advised that he was unaware of the possibility that he could seek compensation from the Department of Veterans' Affairs until February 1998. The Reconsideration Officer further noted that a person who is not aware of a right to claim compensation is not mistaken about that right but ignorant of it. A "mistake" or "reasonable cause" under the Act does not arise out of ignorance, as was noted in Commonwealth of Australia v Connors (1989) 86 ALR 247; (1989) 17 ALD 313. Accordingly, there could be no claim made which fell into the category of exceptions provided by section 16 of the 1930 Act. The Reconsideration Officer further noted the medical evidence of Dr A Smith, Orthopaedic Surgeon, who in a report dated 10 May 2001, indicated that there was no link between the right shoulder injury and service with the RAAF.

Haematoma Right Thigh Muscles

* On 28 June 1969, Mr Peterson suffered a haematoma to the right thigh muscles while playing rugby union for the RAAF in Malaysia.

* On 18 December 2000 Mr Peterson lodged a claim for the injury of "haematoma right thigh muscles" (T3, N2001/1051).

* On 21 February 2001, a determination was made that Mr Peterson suffered an injury arising out of his service, but liability for compensation ceased from 15 September 1982 as the injury had resolved (T5, N2001/1051).

* Mr Peterson requested a reconsideration and on 27 May 2001, the Reconsideration Officer affirmed the determination of 21 February 2001, noting that the Discharge History Questionnaire had recorded that the haematoma of the right thigh had resolved as at the date of discharge. The Reconsideration Officer did not refer to the lateness of notice of injury or claim. The Reconsideration Officer noted that records indicated that no further complaints regarding the condition occurred between December 1969 and discharge in 1982. Furthermore, there was no evidence concerning the claimed condition from the date of discharge until March 2001 (T10, N2001/1051).

Fractured Neck

* On 29 May 1970, Mr Peterson fractured his neck playing rugby union for the RAAF in Malaysia.

* On 4 December 2000, Mr Peterson made a claim for compensation (T5, N2001/1601).

* On 29 May 2001, it was determined that the Respondent had no liability to pay compensation to Mr Peterson in relation to the fractured neck (T13, N2001/1601). It was noted that there was evidence of an old fracture which in the opinion of Dr A Smith, Orthopaedic Surgeon, was not related to any trauma and furthermore there was no mention of trauma in the Discharge History Questionnaire of 1982 prior to discharge. X-rays of 26 May 2000 indicated a congenital fusion at C2/C3 which is developmental in addition to cervical spondylosis with degenerative disc disease which is age-related.

* On 7 September 2001, following Mr Peterson's request for reconsideration, the Reconsideration Officer decided that under the relevant provisions of the 1988 Act, that the claim needed to be determined firstly under the 1930 Act. Furthermore, the Reconsideration Officer noted that the request for reconsideration was made after 30 days limit, required by subsection 62(3) of the 1988 Act, but that the Reconsideration Officer had waived this time requirement. It was noted that under section 16 of the 1930 Act, it was required that notice of an injury had to be given and lodgement of claims within 6 months of the injury. It was noted that it had been 30 years since the incident of suffering the possible fracture of the neck and that this delay prejudiced the Commonwealth's ability to investigate the claim and to obtain contemporary evidence. Furthermore there was no evidence that the failure to lodge a notice or claim related to a mistake, absence from Australia, or any other reasonable cause (T16, N2001/1601). Referring to section 9 of the 1930 Act, the Reconsideration Officer noted that the neck condition did not arise out of or in the course of Mr Peterson's employment with the RAAF. X-ray reports were noted of 1 June 1970 in addition to further clinical records of 28 October 1970 and 13 May 1971. Further medical evidence was noted from Hunter Imaging Group dated 26 May 2000 and Dr A Smith's report of 10 May 2001, which concluded that Mr Peterson's employment with the RAAF was not a contributing factor or principle cause in the development of the neck condition. Accordingly, the Reconsideration Officer concluded that Mr Peterson's neck condition did not arise out of, or in the course of his service with the RAAF.

Fracture of the third and fourth fingers of the right hand

* On 8 June 1970, Mr Peterson injured fingers in his right hand when playing rugby union for the RAAF in Malaysia.

* On 18 December 2000 Mr Peterson made a claim for compensation (T3, N2001/1604).

* On 21 May 2001, a determination was made that Mr Peterson suffered an injury arising out of service but that no compensation was payable on and from 15 September 1982 (T7, N2001/1604). The determining officer referred to the opinion of Dr A Smith, Orthopaedic Surgeon, in which Dr Smith stated that in regard to Mr Peterson's right hand, that Dupuytren's contracture affects the ring and little fingers of the right hand with fixed flexion of the metacarpophalangeal joint of the ring and little fingers and the PIP joint of the ring finger. The condition of the Dupuytren's contracture is of unknown aetiology and the nature of Mr Peterson's employment with the RAAF was not a contributing factor to this condition.

* On 7 September 2001, a Reconsideration Officer considered Mr Peterson's request for reconsideration, noting that the request for reconsideration was made outside of the 30 days required by subsection 62(3) of the 1988 Act (T9, N2001/1604). The Reconsideration Officer decided however to waive the need for strict compliance with that 30 day period and to consider Mr Peterson's application on its merits. As with other reconsiderations, it was noted that Mr Peterson had to satisfy section 16 of the 1930 Act. It was further determined that the Commonwealth was prejudiced because it was over 30 years since the initial injury. The Commonwealth had been denied the opportunity to locate or obtain contemporaneous evidence from medical personnel involved in Mr Peterson's treatment and/or army personnel who could substantiate his allegations. The Reconsideration Officer noted Mr Peterson's statement on 5 March 2001 (T6, N2001/1604, p11) that he had only found out about compensation from a friend in February 1998 and that if he had known about it before hand he would have kept his records. Referring to ignorance not being a mistake as dealt with under section 16 and noting the decision in Commonwealth of Australia v Connors (supra), the Reconsideration Officer determined that Mr Peterson's failure to lodge a claim was not due to a mistake, absence from Australia or some other reasonable cause and therefore the claim made in 2000 did not fall within any of the exceptions contained within section 16 of the 1930 Act and therefore could not be considered. Furthermore, the Reconsideration Officer noted that if that was an incorrect decision, noting the medical expert evidence of Dr A Smith, there was, in Dr Smith's opinion, no link between the condition of his third and fourth fingers of the right hand and service, accordingly there was no liability for the Commonwealth to pay compensation and the decision under reconsideration was affirmed.

Dislocated Left Shoulder

* On 7 August 1978, Mr Peterson injured his left shoulder playing rugby union for the RAAF in Malaysia.

* On 18 December 2000, Mr Peterson made a claim for this dislocated left shoulder (T3, N2001/1602).

* On 21 May 2001, a determination was made that liability for the dislocated shoulder ceased on 27 September 1982 (T6, N23001/1602). The Determination Officer noted Dr Smith's opinion that Mr Peterson suffers from a degenerative disease involving the rotator cuff.

* On 7 September 2001 (T9, N2001/1602), following Mr Peterson's request for a reconsideration, a Reconsideration Officer determined that applying sections 123, 123A and 124 of the 1988 Act, that this matter was to be determined under the 1971 Act. Section 27 of the 1971 Act required that the current claim for injury must be an injury arising out of or in the course of employment with the Commonwealth. It was noted that Mr Peterson dislocated his left shoulder twice within the one rugby game and it reduced on both occasions. Furthermore, the evidence was that the left shoulder was sore but there was a full range of movement. X-ray reports of 8 August 1978 indicated that the humeral head was in normal articulation with the glenoid and that no fracture could be seen. Furthermore, the report by Dr A Smith of 10 May 2001 indicated that on the balance of probabilities, Mr Peterson suffered from a degenerative disease involving the rotator cuff. This was probably related to part of the ageing process and not related to his employment with the RAAF. Dr Smith opined that Mr Peterson would have probably developed degenerative disease in the rotator cuff whether he worked with the RAAF or not. Accordingly, the Reconsideration Officer affirmed the original determination that no liability was present to pay Mr Peterson compensation for his dislocated left shoulder.

EVIDENCE OF MR ROBERT PETERSON

Haematoma Right Thigh Muscles

10. Mr Peterson stated that this injury occurred in Penang on about 28 June 1969. He was playing rugby union in the position of breakaway and collided with another player. Mr Peterson stated that he knew immediately he had a problem and also he was unable to walk properly. Mr Peterson left the field and he had ice applied and was supplied with crutches. Mr Peterson further noted that he "blacked out" in mid July and was later x-rayed on 30 July 1969 following which he "blacked out" again on 1 August 1969. Mr Peterson stated he was hospitalised at Butterworth until about 27 September 1969. Mr Peterson was told that there were no claims for compensation but he believed that a Flight Sergeant filled out an incident form. Mr Peterson's evidence was that when the forms eventually turned up, he filled one out and handed it in to the Orderly Room. He believed that it was signed on or about 8 January 1970. It is not clear whether or not this might have been a notification of incident report. Mr Peterson stated that he was then told he could not put in the claim form by an RAAF personnel, "Bluey Farrell". This may have been on 12 March 1970 (Exhibit A4).

11. When back in Australia in June or July 1971, Mr Peterson stated that he tried again to claim compensation when he was at Richmond but he was not provided with any claim forms. Mr Peterson told the Tribunal that in 1998, he found out from a Pensions Officer about the possibility of claiming compensation.

12. Specifically in relation to the symptoms of haematoma right thigh muscles, Mr Peterson noted that he has pins and needles in an area of about six or seven inches long in his right thigh. He has no treatment and just puts up with this condition. Despite the symptoms, Mr Peterson continued to play rugby union after the incident. He noted that in 1970, he had slowed down and was moved to a less strenuous position.

13. Mr Peterson acknowledged that he had signed a "Report of a Ground Accident" in relation to an accident on 28 June 1969 (T4, N2001/1051, p24). He stated that in relation to claim forms in 1969, he knew that there were such forms to be filled out and that he might find himself too late. He further stated that he had tried to obtain a claim form from orderly, Bluey Farrell, in February or March 1970. While acknowledging that the Report of a Ground Accident was not a claim form, Mr Peterson did not agree that if he had seriously intended to claim, he would have followed up with obtaining a claim form. Mr Peterson stated that he was not told anything in the forces about such matters. He thought that in fact a further document that he had completed, namely, the "Commonwealth Employees' Compensation Report Of An Injury" signed on 20 December 1969 was in fact a claim for compensation (T6, N2001/1051, pp35-36). Mr Peterson stated that he did not know the difference between a claim for compensation and a report of an injury. He stated that he had not seen a letter dated 12 March 1970 concerning his notification of an injury and which referred to compensation benefits (T6, N2001/1051, p38). That form noted the receipt of a notification of injury, dated 10 February 1970, and which also indicated that claim forms for compensation could be obtained from the office at No 3 Squadron, RAAF Base, Butterworth. He also did not know of the time limits referred to in that correspondence within which a claim must be made. Mr Peterson agreed that at that time in March 1970, he was in the Electrical Section of No. 3 Squadron and that therefore the letter of 12 March 1970 had been correctly addressed. In hindsight, Mr Peterson agreed that when he had spoken to Bluey Farrell, all he had done was to complete a notification of injury form.

14. Mr Peterson stated that he had complained of his right thigh problems to doctors between 1969 and 1982, yet acknowledged that there was nothing on the Discharge Summary to indicate this. He also acknowledged that on the Discharge History Questionnaire dated 15 September 1982 (T4, N2001/1051, p31) while there was mention of a haematoma of the thigh, it was noted to have been resolved. Mr Peterson stated that he was not present when the medical officers completed the medical section of the Discharge History Questionnaire. He had complained, he told the Tribunal, about pins and needles when he attended for medicals. He did not believe that he would have told any one at discharge that the right thigh problem had resolved.

15. Mr Peterson stated that at the time of discharge, there was no information provided to him concerning the rights of service personnel from either the Department of Defence or Department of Veterans' Affairs in terms of what should be done when seeking a Disability Pension or military compensation. Mr Peterson stated in oral evidence that it was not until he accidentally saw an old service friend in February 1998 that he became aware he could claim compensation from the Department of Veterans' Affairs. In a letter to the Department of Veterans' Affairs dated 5 March 2001 (T6, N2001/1051, p33) Mr Peterson stated that he "only found out about Freedom of Information where I may received my medical documents (which I received 24 August 1998 minus 15 September 1982 sheets) and claim compensation February 1998". The Tribunal notes that in a letter of 30 June 2001 to the Tribunal Mr Peterson stated that he "did not know anything about The Freedom of Information Act which entitled me to obtain my service and medical documents until I accidentally saw an old friend from the service in February 1988 who filed a claim on my behalf to DVA." (Exhibit A4). Mr Peterson further stated in his letter of 30 June 2001 that it was in November 2000 that he found out about military compensation and claimed for service injuries (Exhibit A4). Mr Peterson noted that at that late stage, having worked for 15 years from the Victorian to the Queensland borders, and consulting different doctors, made it extremely difficult for him to obtain medical records from various medical practitioners because they had only kept his medical records for seven years (Exhibit A4).

Dislocated Right Shoulder

16. Mr Peterson wrote on 16 December 2001 that on 4 September 1966, he dislocated his right shoulder while playing football for the RAAF in Newcastle. He was hospitalised for 14 days and the Commonwealth accepted liability. His right arm was put in a sling. From 1986 onwards, Mr Peterson attended Dr A Lightbody, General Practitioner and was prescribed "Brufen" 400 mg (Exhibit A3). He is advised to swim and that any surgical procedure to the right shoulder would in fact weaken the right shoulder. Mr Peterson stated that he has poor range of movement and can only reach to the back of his belt. The right and left shoulder condition interferes with his sleep.

17. Mr Peterson noted that he continued to play rugby union after 1967 but that he did have painful arms. After his experience with trying to claim for the right thigh condition, he stated that he did not think to put any notice of injury in or a claim for compensation.

18. At discharge, Mr Peterson stated that he was mainly concerned to record his condition with his knees. In any event, he believed that the various papers and documentary evidence of his injuries, including the right shoulder injury would be considered by the medical personnel, even though he had not completed a claim form.

Fractured Neck

19. Mr Peterson described an incident which occurred when he was playing rugby union at Butterworth in about May 1970 (Exhibit A5). At that time, a scrum had collapsed on top of him. He did not feel well and had difficulty standing up. He later had medical attention on the following Monday and was provided with a neck collar. Mr Peterson stated that he continued to play football on the next weekend. Mr Peterson told the Tribunal that he did not submit a claim for compensation in relation to this condition because he had not been successful on the first time. Before his discharge from the RAAF in 1982, Mr Peterson stated that he had experienced difficulties with his neck. He had massage and chiropractic treatment to assist. The condition was present when he was discharged. In a RAAF Health Statement dated 6 September 1971 (Exhibit A8), Mr Peterson noted that cold weather affected his collarbone. He thought that he was covered for compensation for this condition.

20. In 1971, Mr Peterson had been thinking of leaving the services, but the administration kept asking him to continue and accordingly he signed up again in 1971. In relation to the notation on the Health Statement of 6 September 1971 (Exhibit A8) that in relation to his broken collarbone there was "settlement", Mr Peterson told the Tribunal that he did not know what this meant, but believed that he must have thought that he was covered for compensation. This Health Statement, Mr Peterson agreed, did not mention any neck condition but only pins and needles down his right side and cold weather affecting his collarbone. He had ticked the box indicating that the condition of broken collarbone, broken nose and thigh injury, were covered by compensation and while he had also ticked that he had made an application for acceptance of injuries under the 1930 Act, he thought he had claimed compensation and knew he had to do this so as not to be late.

21. Mr Peterson agreed that he had not in fact completed a claim form for the fractured neck condition until 2000. Mr Peterson further agreed that in a "Medical Examination Record" completed on 6 September 1971, there was no mention of any neck problem (T8, N2001/1601, p25). This form was completed in consultation with him, he stated. Furthermore, there was no difficulty reported in relation to Mr Peterson's neck on 27 November 1972 in a further "Medical Examination Record" (T8, N2001/1601, p26) and Mr Peterson kept playing football. Mr Peterson believed that he complained about his neck in 1982, but again, continued to play football until 1998 at which time he in fact took a redundancy from Telstra.

22. Mr Peterson believes that his previous injuries, including the neck injury came back in 1998 to cause him trouble. Mr Peterson also provided evidence that he did not put any claim forms in for compensation because he did not know that he was required to do so.

Broken Third and Fourth Fingers of the Right Hand

23. Mr Peterson told the Tribunal that he has had a number of injuries to his right hand including in 1964 and 1965 but had never claimed prior to the claim, the subject of review (Exhibt A2). Mr Peterson stated that he had fractures in 1970 and that his right hand was strapped after that. He furthermore suffered injuries in 1972, 1974 and 1976 (Exhibit A2). Mr Peterson stated that he did not recall filling out any forms and that furthermore he did not know of the existence of military compensation until 4 December 2000 when he was informed of this with the assistance of the Vietnam Veterans' Association in Newcastle, and this was noted in his letter to the Tribunal of 16 December 2001 (Exhibit A2). In an attached letter to Exhibit A2 dated 30 June 2001 Mr Peterson stated that he found out about the Department of Veterans Affairs in February 1988 from an old service friend and found out about military compensation in November 2000 (Exhibit A2). In a letter of 5 March 2001 Mr Peterson stated that he found out about Veterans' Affairs from a friend in February 1998 (T6, N2001/1604, p11). Mr Peterson noted that he has difficulty using eating utensils and it is painful when shaking hands with a person. He suffers embarrassment from the condition of his right hand and also has some difficulty in shaving.

Dislocated Left Shoulder

24. In relation to this condition, Mr Peterson noted that the left shoulder had been injured on a number of occasions, including in 1963, 1967, 1970 but that the subject of the present claim occurred on 7 August 1978 (Exhibit A1). He was playing rugby union, suffered a dislocation and left the field. Mr Peterson was assisted and then returned to the field whereupon his left shoulder was once again dislocated. He was taken to the hospital and had x-rays and his left arm was put in a sling. Mr Peterson stated that he later undertook lighter duties with the left upper limb being kept in a sling for approximately three or four weeks. He did not make a claim, noting that he thought at the time, "what was the use of doing so". A notation in Mr Peterson's clinical records dated 7 August 1978 (Exhibit R2) indicates that there was a dislocation of Mr Peterson's left shoulder on two occasions and that this shoulder was reduced both times. The shoulder was sore but there was a full range of movement with the nerve considered to be alright. A sling was required, x-rays were taken on 7 August 1978 noting the humeral head had normal articulation with the glenoid and no fracture was seen (Exhibit R3).

25. In his letter to the Tribunal concerning his dislocated left shoulder, Mr Peterson noted on 16 December 2001 that when he was discharged from the RAAF, there were 52 joints which were dislocated, 54 broken bones and no mention of his hands or shoulder (Exhibit A1). It was again not until 4 December 2000 that he found out about military compensation from the Vietnam Veterans' Association Newcastle Office. Mr Peterson reiterated his difficulty in obtaining continuous medical history from various medical centres, noting his attempts to find records from Dr R Wilkinson, Dr Rai and Dr Lightbody. In relation to his current symptoms, Mr Peterson notes pain in his left arm about four inches from his shoulder. The pain is worst when in bed and he stated that he wishes he could "hang both arms in the wardrobe" (Exhibit A1). Mr Peterson takes anti-inflammatory medication in the form of "Brufen" 400 mg one tablet twice per day.

26. It was put to Mr Peterson that he had not submitted claims for compensation because he had not made up his mind whether or not he would claim for his various conditions. Mr Peterson's evidence was that he did not know why he had not completed question 12 on the "Commonwealth Employees' Compensation Report of an Injury" form which asked, "Do you intend making a claim for compensation? Yes/No" (T6, N2001/1051, p36).

EVIDENCE OF DR A SMITH, ORTHOPAEDIC SURGEON

27. Dr Smith provided a report to Military Compensation and Rehabilitation, Department of Veterans' Affairs, dated 10 May 2001 (T12, N2001/1601). Dr Smith examined Mr Peterson on 24 April 2001. Dr Smith noted that Mr Peterson gave a history of a number of maladies. In relation to his neck condition, Mr Peterson described neck pain, headaches and symptoms in the upper limbs suggesting radicular pain. The clinical examination of Mr Peterson's neck was essentially unremarkable for a man of his age with radiological appearances indicating a congenital fusion at C2/3 and degenerative disc space narrowing and arthritic change at several locations. Dr Smith opined that employment with the RAAF is not a contributing factor or a principle cause of the development of the neck condition, rather, it was in part congenital and in part occasioned by the ageing process.

28. Mr Peterson has Dupuytren's contracture of the right hand. Dr Smith could detect no anomaly in the small joints or the fingers of either hand that would suggest there is an abnormality present consequent to any number of fractures he could have had in the past. The condition of Dupuytren's contracture was not contributed to by Mr Peterson's employment with the RAAF. This condition would have developed, Dr Smith opined, whether or not he was employed by the RAAF. The condition is surgically reversible, though one could not guarantee the outcome.

29. In relation to Mr Peterson's right shoulder, there was some arthritic change affecting the actual glenohumeral articulation on the right. The osteoarthritic change in the acromioclavicular joint is unremarkable for a man of Mr Peterson's age. Clinically the right shoulder is normal, Dr Smith reported. Considering a dislocation of Mr Peterson's right shoulder, Dr Smith opined there was unlikely to be any relationship between the dislocation of the right shoulder and Mr Peterson's current osteoarthritic change in that shoulder. He would probably have developed the condition of the right shoulder even if he had not been employed by the RAAF, Dr Smith further opined.

30. In relation to the left shoulder, Dr Smith opined that on the balance of probabilities Mr Peterson suffers from degenerative disease involving the left rotator cuff. This condition is probably not related to Mr Peterson's employment with the RAAF and is part of the ageing process as it affects him. He would have developed this degenerative disease in the rotator cuff whether or not he had worked for the RAAF, Dr Smith concluded.

DR J A CONNOLLY, GENERAL SURGEON

31. Dr Connolly provided three reports dated 16 October 2001 (Exhibit R4); 22 January 2002 (Exhibit R5); and, 15 February 2002 (Exhibit R6). Dr Connolly also provided oral evidence to the Tribunal.

32. Dr Connolly in his first report noted that Mr Peterson was a difficult historian who made diffuse and verbose statements, tending to ramble, with Dr Connolly finding it difficult to keep Mr Peterson on to the precise subjects under discussion.

33. Dr Connolly examined Mr Peterson on 16 October 2001. In relation to the haematoma of his right thigh muscles, Dr Connolly noted that Mr Peterson has myositis ossificans. Generally speaking, Dr Connolly noted that this condition was associated with a bony injury but it is well recognised that it can occur when someone receives a blow over the thigh and fluid collection is not drained early. It is highly likely, Dr Connolly opined, that Mr Peterson's myositis ossificans followed on the haematoma to his right thigh which developed after a football injury in 1969. While it is possible that he may have some slight paraesthesia as a result of this condition, it is unlikely that it would provide him with much in the way of symptoms. Dr Connolly noted that Mr Peterson has played a great deal of football and has received many injuries. Dr Connolly further opined that Mr Peterson's leg and knee pain is almost certainly due to old football injuries and probable degenerative changes in his knees. While Mr Peterson was noted to be suffering from myositis ossificans, he also suffers from gout and has considerable trouble in both knees requiring repeated aspirations and the medication "Zyloprim", and agent used in the treatment of gout and hyperuricaemia. Dr Connolly further opined that the affects of the haematoma to the right thigh muscles has ceased and would have ceased by 1982. By that time Mr Peterson was having trouble with his knees due to gout. Dr Connolly opined that the affects of this injury to the right thigh did not impact on Mr Peterson's ability to work. He is however, considerably overweight and has degenerative changes in his knees in addition to gouty problems.

34. Dr Connolly examined Mr Peterson on the second occasion on 22 January 2002. In relation to Mr Peterson's neck condition, Mr Peterson had told Dr Connolly that he did not know that he had significantly injured his neck until he read his documents in 1998. While he knew that he had hurt his neck in football in Malaysia on 29 May 1970 he did not know that he had suffered any serious injury. At the time, he had an x-ray of his neck and was in a collar for two days. A further injury was sustained on 28 October 1970 and his neck just got better. He complained subsequently of pain on the left side of his neck in December 1970 and finally in June 1982, Mr Peterson reported having neck symptoms, consulting his general practitioner and then being referred to a chiropractor. Dr Connolly described Mr Peterson experiencing stabs of pain at the back of the neck at any time, including at night. He feels his neck creaking and experiences pain in both upper arms.

35. Dr Connolly opined that Mr Peterson has degenerative changes in his neck. There is no definite evidence of any injury although Dr Connolly noted one report of the possibility of a tiny flake fracture which did not appear in subsequent x-rays. Recent x-rays show changes at C6 which appear slightly flattened. While Dr Connolly opined there may be a possibility of a very old, very slight, stable crush fracture, if this is so, it is well healed and certainly has not left Mr Peterson with any impairment or significant disability. Once the neck had settled, if there had been a fracture, it would not cause Mr Peterson any disability even if there had been a fracture, it would have healed quickly and left no permanent effects whatsoever. The fracture, if there had been one, would have settled totally within a very short period of time and not effected Mr Peterson's subsequent ability to work, Dr Connolly opined.

36. In relation to the dislocation of the right shoulder, Dr Connolly noted that this is not an uncommon injury. There is some impingement of his right shoulder which is not associated in any way, Dr Connolly opined, with the dislocation. There is no impairment resulting from this dislocation. Any impairment of the right shoulder in relation to impingement is not due to Mr Peterson's service, Dr Connolly concluded.

37. Dr Connolly further noted that the right shoulder condition on service was treated conservatively and Mr Peterson recovered completely. The slight restriction of movement apparent on clinical examination was due to age-related degenerative changes and not related to his shoulder injury at all, Dr Connolly concluded.

38. In relation to the dislocation of the left shoulder, Dr Connolly noted that this was dislocated twice within the same game of football. Mr Peterson was treated in a sling and the shoulder did not dislocate again. It is reasonable to conclude, Dr Connolly reported, that the left shoulder gave Mr Peterson trouble only at the time of the dislocation while playing football and he recovered completely from this.

39. In relation to the right hand condition, Dr Connolly opined that on clinical examination, Mr Peterson has very marked Dupuytren's contracture. The x-ray of Mr Peterson's right hand does not show any bone or joint abnormality and it is almost certain that the flexion of his fingers is due to the Dupuytren's contracture and not due to any bony injury. There is nothing to suggest any permanent impairment, apart from the Dupuytren's contracture which is not related to Mr Peterson's RAAF service in any way. Dr Connolly reported that there is some doubt that a fracture of the right forefinger happened in 1964 while Mr Peterson was playing football. It is possible that Mr Peterson may have had a very minor fracture to his right ring finger, however, there is no abnormality seen in the bones or joints in his later x-rays and this suggested, Dr Connolly opined, that if Mr Peterson had had a fracture, it was now well healed and any disability is due to his Dupuytren's contracture and not to an old fracture. Any stiffness present is due to the Dupuytren's contracture and not any injury related to the RAAF. In relation to the fourth finger, it is possible that Mr Peterson did have a fracture which left some stiffness of the PIP joint which may have had some slight impact on his ability to work. The impact would be negligible as he worked for Telstra for many years and it was his Dupuytren's contracture which is the main problem affecting his hands.

40. Dr Connolly concluded that none of the conditions the subject of the review by the Tribunal are related to any work injury with the RAAF.

SUBMISSIONS

41. Mr Peterson stated that he does not know where the pains come from if it does not come from his old injuries which occurred during his service in the RAAF. Mr Peterson submitted that his hands have been very bad since 1976. The haematoma to the right thigh muscles has been the same as it has always been, noting numbness and pins and needles. In relation to this latter condition, Mr Peterson stated that he had filled in a report and thought that this was all that was required and indeed thought that he was filling in a compensation claim form.

42. Mr Peterson submitted that he had been provided with no information at discharge concerning compensation and if he had known about this, he would have filled out a claim form. He furthermore stated that if he had known the problems concerning his attempts initially to make a claim for compensation he should have stayed at home.

43. Mr Johnson submitted that there are five specific claims for compensation which were made under the 1988 Act. Referring to the transitional provisions under section 124 of the 1988 Act, Mr Johnson further submitted that this required that four of the conditions, namely haematoma to the right thigh muscles, dislocation of the right shoulder, fractured neck, and broken third and fourth fingers of the right hand, must be considered under section 16 of the 1930 Act. The condition of dislocation of the left shoulder falls for consideration under the 1971 Act as this injury occurred on 7 August 1978. Thus, in relation to the four conditions mentioned previously, the Tribunal must apply section 16 of the 1930 Act to then ascertain whether or not a claim can be made under the 1988 Act. It is the Respondent's general contention that the claims cannot be considered under the 1930 or 1971 Acts and furthermore, even if they could, the merits of the case do not allow the Tribunal to find that the Respondent has liability to pay compensation for any of the conditions.

44. Referring to the Outpatient Consultation Record (Exhibit A10) with the notation of 15 September 1967, which recorded that Mr Peterson had a disability related to the dislocation of the right shoulder and that it had been accepted by the "Commonwealth Employees Compensation Board", Mr Johnson noted that there was no such entity. There was however, the "Commissioner's Office of Employee Compensation". Mr Johnson submitted that the Respondent did not receive a claim form under the 1930 Act or the 1971 Act, only receiving a claim for compensation in 2000.

45. In Mr Peterson's Discharge History Questionnaire (T4, N2001/1051, p31), Mr Johnson submitted that this does not help Mr Peterson in his various claims for compensation. In this regard, in relation to the haematoma of the right thigh muscles, the Discharge History Questionnaire indicates that this condition had resolved. While there is evidence that the right haematoma was recorded in a "Report of a Ground Accident" and also in a "Report of an Injury" form, no claim for compensation was received and furthermore, Mr Peterson was unable to explain why he had not indicated on the Report of an Injury form whether or not he intended to claim compensation as was asked at Question 12.

46. The Tribunal was referred to the Federal Court decision in Scott-Holland v Commonwealth of Australia (1983) 46 ALR 328 where at 334, Ellicott J noted, referring to subsection 16(1) of the 1930 Act which states that the Commissioner shall not admit a claim for compensation, that this meant that it should not be "entertained".

47. Section 16 of the 1930 Act deals with two distinct issues, Mr Johnson submitted. Firstly, that notice of an accident must be served as soon as practical and before the employee left employment and that a claim for compensation has to be made within six months of the accident, unless failure to do so is occasioned by mistake, absence from Australia or other reasonable cause. Mr Johnson submitted that Mr Peterson would need to provide a notice and a claim to satisfy section 16, unless he satisfied one of the exceptions or provisos.

48. In considering failure to put in a claim within a six months time frame, the Tribunal would need to consider what caused Mr Peterson not to comply with this requirement. In Secretary of the Department of Veterans' Affairs v Studdert [2001] FCA 1642, Moore J noted that subsection 16(1)(ii) of the 1930 Act operates when the failure of a person to make a claim within a specified period was occasioned by factors which included a reasonable cause. There must be, Moore J found, a direct relationship between the failure of an individual to make a claim and reasonable cause. In that case, Mr Studdert had been ignorant of his rights to compensation.

49. In Re Willis and Australian Telecommunications Commission and Commonwealth of Australia (1989) 19 ALD 665 that Tribunal noted that in dealing with the six month period of injury one should look to see whether there was some mistake, absence from Australia or reasonable cause. The Tribunal noted that claims made for injuries arising in 1956 or 1957 required consideration under the provisions of the 1930 Act and that there must be a claim made within six months of the injury having occurred. Further authority for the consideration of claims made under the 1988 Act referring to injuries occurring at times when either the 1930 or 1971 Act was in force, was to be found in the words of the majority of the High Court in Johnston v The Commonwealth (1982) 150 CLR 331. In Re Willis and Australian Telecommunications Commission and Commonwealth of Australia (supra), the Tribunal concluded that it must consider that under subsection 124(2)(b) of the 1988 Act, the Tribunal is required to determine whether compensation would be payable to Mr Willis in the factual circumstances under the provisions of the 1930 Act, before Mr Willis could be entitled under the 1988 Act. Accordingly, if that question was decided in Mr Willis favour, then the Tribunal must consider at a later time the further provisions of the 1988 Act.

50. In Re Muras and Department of Defence (1998) 52 ALD 579 at paragraphs 20-22, it was noted that Mr Muras' evidence was that he was unaware he could obtain compensation. He was thus ignorant of his rights, Deputy President McMahon noted, and as was submitted by Mr Johnson in Mr Peterson's case, both referring to Commonwealth of Australia v Connors (supra), in which Northrop and Ryan JJ stated:

"....In order to come within the provisos to s 16(1), it is necessary that the want of giving notice and the want of making the claim "was occasioned by mistake...or other reasonable cause"...The findings of fact do no more than support a conclusion that he was ignorant, that is, that he did not know of his right to make a claim for compensation. Of course it followed from that conclusion that he was ignorant also of the requirements of giving notice and of making a claim within the time prescribed s 16(1). The failure to give the notice and the failure to make the claim, on these findings, was occasioned by ignorance. Ignorance, in the sense we have used it as signifying failure to advert to the existence of the right cannot of itself constitute "reasonable cause" under the 1930 Act.

...

Applying that test, it is clear on the findings made that the only reason for the failure to give the notice and to make a claim was ignorance of the law. That does not constitute "reasonable cause".

..."

51. Deputy President McMahon found in Re Muras and Department of Defence (supra) that ignorance did not constitute a mistake. Furthermore, the issue of reasonable cause was considered in Banks v Comcare Australia, Federal Court, 22 May 1996, 118/1994. Mr Johnson noted that in Telstra Corporation v Roycroft (1997) 77 FCR 358 there had been consideration of relevant authorities and North J noted that there is a thin line between mistake and ignorance. In this regard, North J concluded:

"...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. The distinction between ignorance and mistake requires very careful attention to the evidence, as Keely J pointed out in Connors".

52. Accordingly, Mr Johnson submitted that ignorance does not constitute a mistake. Mr Johnson submitted that there was no reasonable cause in an act or omission which prevented Mr Peterson giving notice of an injury or making a claim. Mr Johnson submitted that Mr Peterson should not and could not be allowed under the provisions of any legislation to not make a claim and then change his mind and decide some 30 years later that it suited him to claim various conditions as being related to his service in the RAAF. Mr Johnson submitted that the evidence is that on the one hand, Mr Peterson did not know it was necessary to give notice or to make a claim within a certain time. If he had known, Mr Peterson had told the Tribunal he would have made a claim.

53. Considering Secretary of the Department of Veterans' Affairs v Studdert (supra) the Respondent does not accept that there is any obligation on the Respondent to provide Mr Peterson with a claim form. The obligation is, Mr Johnson contended, on the Applicant to make a claim.

54. In relation specifically to the condition of haematoma of the right thigh muscles, Mr Johnson acknowledged that Mr Peterson did provide notice but he did not make a claim within this specified period. From consideration of T6, N2001/1051, pages 35 and 36, Mr Johnson submitted that it would appear that Mr Peterson had not made up his mind. Furthermore, Mr Johnson doubted Mr Peterson's evidence that there were no claim forms available. This is particularly so in light of the evidence that Mr Peterson gave that he considered the document at T6, N2001/1051, pp35-36 to have constituted a claim form.

55. Considering the documentary evidence contained within the Report of Ground Accident (T4, N2001/1051, p24) and the Report of an Injury (T6, N2001/1051, pp35-36) it would appear that Mr Peterson had no intention to claim, or alternatively there was a failure to claim. Even if that were wrong, and the Report of an Injury of 20 December 1969 could be considered to be a claim, looking at the merits of this case, considering the medical evidence that the haematoma of the right thigh muscles had resolved in combination with reports of Dr Connolly and Dr Smith, Mr Johnson submitted that even if a claim could be considered to have been properly given under section 16 of the 1930 Act and an injury arisen out of service as required by section 9 of the 1930 Act, then the medical evidence is such as to indicate that the condition of haematoma right thigh muscles was resolved and any condition he now had could not be related to his service. Accordingly, the decision in relation to haematoma right thigh muscles should be affirmed.

56. In relation to the 1970 neck injury, again, for all the reasons specifically provided in relation to haematoma right thigh muscles, Mr Johnson submitted that no notice or claim of the neck condition was submitted in accordance with the requirements of section 16 of the 1930 Act and accordingly, no claim could be entertained under the 1988 Act. Again, if this was not found to be so by the Tribunal, then considering the medical evidence and the merits of the case, Mr Johnson contended that any neck symptoms experienced by Mr Peterson were not related to his RAAF service as was noted by Dr Smith and Dr Connolly. Indeed, Mr Peterson did not know of any injury to the neck until he looked at his 1998 records. Mr Peterson continued to play football and it did not cause him to give up either his work in the RAAF or his subsequent post Navy employment activities.

57. In relation to the dislocation of the right shoulder, Mr Johnson submitted that the claim under the 1988 Act could not be entertained because Mr Peterson did not satisfy the requirements of section 16 of the 1930 Act. Furthermore, in relation to the merits of the case, the injury to the right shoulder was not, in all of the evidence and noting the expert medical opinions of Dr Smith and Dr Connolly related to Mr Peterson's RAAF service. Again, that claim for compensation for the dislocation of the right shoulder could not be accepted and accordingly the decision under review affirmed.

58. In relation to the broken third and fourth fingers of the right hand, Mr Johnson submitted that again the operation of section 16 of the 1930 Act precluded any claim for compensation being entertained and furthermore in relation to the merits of the case, the real problem in relation to Mr Peterson's right hand relates to his Dupuytren's contracture. If there was any broken fingers, they had fully recovered and the symptoms Mr Peterson experienced did not relate to his employment with the RAAF. Accordingly, the application for review in relation to the broken third and fourth fingers of the right hand should be affirmed.

59. Finally, in relation to the 1978 injury of the dislocation of the left shoulder, Mr Johnson submitted that sections 53 and 54 of the 1971 Act allowed the exception of ignorance to explain failure to make a notice or a claim and accordingly, if the Tribunal considered that no claim or notice was made because of ignorance, then the Tribunal could consider the merits of the case under the 1988 Act. In this regard, Mr Johnson referred the Tribunal to the medical evidence both discussed in the Discharge History Questionnaire and also in the expert opinions of Dr Smith and Dr Connolly. Any symptoms of the left dislocated shoulder on the Discharge History Questionnaire would indicate that the problem had been resolved or resulted in no ongoing symptoms. Consideration of Dr Smith's and Dr Connolly's opinion is that any impact of the dislocation of the left shoulder was minor and short lived and any discomfort now experienced by Mr Peterson related to age-related degenerative changes and not to the injury which occurred during the course of Mr Peterson's RAAF service. In all of these circumstances, Mr Johnson submitted that there was no incapacity relating to Mr Peterson's RAAF service and accordingly the Respondent was not liable to pay compensation for this condition.

60. Mr Johnson submitted that all of the decisions under review should be affirmed.

FINDINGS

61. The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the submissions, the legislation and case law.

62. In this matter, Mr Peterson has made claims in 2000 for five conditions, namely haematoma of the right thigh muscles (N2001/1051); fractured neck (N2001/1601); dislocated left shoulder (N2001/1602); dislocated right shoulder (N2001/1603); and, broken third and fourth fingers of the right hand (N2001/1604).

63. Apart from the claim for dislocated left shoulder which arose out of an incident in August 1978, the four remaining conditions occurred prior to 1971. Accordingly, in relation to haematoma of the right thigh muscles, dislocated right shoulder, fractured neck and broken third and fourth fingers of the right hand, under section 124 of the 1988 Act, these conditions must be considered under section 16 of the 1930 Act. This approach is confirmed in the case law and the Tribunal has gained some guidance in its approach by consideration of the majority of the High Court in Johnston v The Commonwealth (1982) 50 CLR 331 at 342; Scott-Holland v Commonwealth of Australia (supra); and, Re Willis and Australian Telecommunications Commission and Commonwealth of Australia (supra) that under subsection 124(2)(b) of the 1988 Act, the Tribunal is required to determine whether compensation would have been payable to Mr Peterson in the circumstances provided in evidence under the requirements of the 1930 Act, before Mr Peterson's entitlement can be determined under the provisions of 1988 Act. If Mr Peterson is found by the Tribunal to satisfy the requirements under the 1930 Act, then the Tribunal must consider the 1988 requirements. Mr Johnson for the Respondent has contended that as Mr Peterson did not meet the requisite time limits provided under section 16 of the 1930 Act and the provisos, his claim cannot proceed and therefore cannot be successful.

64. The Tribunal will consider each of the conditions which fall under the requirements of the 1930 Act.

Haematoma Right Thigh Muscles

65. There is a Report of a Ground Accident dated 25 July 1969 in relation to haematoma of the right thigh muscles completed by Mr Peterson in relation to an incident which he experienced on 28 June 1969. There is also a form completed by Mr Peterson on 20 December 1969 entitled "Commonwealth Employees' Compensation Report of an Injury" recording an injury to the right thigh arising out of a rugby union game.

66. Question 12 of the Report of an Injury asks the question as to whether or not Mr Peterson intended to make a claim for compensation. Mr Peterson completed the remainder of the form but left this question unanswered. Mr Peterson's evidence was that he did not know why he did not complete this question. His evidence was also that he was waiting for compensation claim forms as the administration had run out of these forms. On the evidence, no claim form was completed until 18 December 2000 (T3, N2001/1051). There is documentary evidence reporting that Mr Peterson had made a claim for compensation, however, no such form has ever been identified and other evidence provided by Mr Peterson is that the Report of an Injury he completed in December 1969, was in fact what he thought to be a claim for compensation. The difficulty for the Tribunal is that Mr Peterson's evidence on these matters is conflicting. On the one hand Mr Peterson told the Tribunal that he did not know of his right to claim compensation and had not been told of this at the time of discharge, nor indeed until a friend informed him in 1998. Mr Peterson also reported in a letter of 30 June 2001 that he did not know about "freedom of information" and making a claim to the Department of Veterans' Affairs until he saw an old service friend in 1988 and he also stated that he found out about military compensation in November 2000 (Exhibit A4). On the other hand, Mr Peterson has provided evidence that he had attempted to claim compensation, thus indicating he knew of his right to do so, but had not completed a claim because the administration had run out of claims. Furthermore, Mr Peterson's evidence at one point was that he knew that there were time limits and that was why he was anxious to obtain claim forms. He also provided evidence that he thought the Report of an Injury was a claim form. While the Tribunal takes into account difficulties with memory and the passing of time in relation to the incidents that are the subject of Mr Peterson's claims for compensation, the wide-range of dates and differing evidence makes it difficult for the Tribunal to ascertain where the truth lies.

67. The Tribunal is satisfied that Mr Peterson completed a notice of an incident but he also, under the provisions of section 16 of the 1930 Act, was required to complete a claim form within six months. Mr Peterson did not complete a claim form within six months and the Tribunal must determine whether or not the failure to lodge the claim within the required time occurred because of, as provided by subsection 16(1)(ii) of the 1930 Act, mistake, absence from Australia, or other reasonable cause.

68. There has been examination by the Federal Court and by various Tribunals as to what constitutes a mistake. The Tribunal is satisfied on its examination of these authorities that ignorance does not constitute a mistake, although it is a fine distinction.

69. It is difficult for the Tribunal on the evidence to ascertain the true state of Mr Peterson's knowledge. On one view of his evidence, it could be that Mr Peterson knew of his right to claim compensation and of the need to do this within a certain timeframe. The fact of the matter is that Mr Peterson did not make a claim until 2000 in relation to all five conditions. His evidence was that he did not make a claim because either there was no claim form available to him or, on his other evidence, that he did not know of his right to make the claim for compensation until he was advised by a friend in 1998, or on other evidence in 1988 or November 2000. Whether or not Mr Peterson knew of his ability to claim or if he did, that there were no claim forms available, it is clear that he did not pursue with any vigour, attempts to find more claim forms and certainly, apart from the haematoma of the right thigh muscles, to make claims in relation to the four other conditions which occurred between 1969 and 1978.

70. If the Tribunal accepted that Mr Peterson made a mistake, considering that the notice was provided in relation to haematoma right thigh muscles and that it could then accept that this was a claim mistakenly submitted as a notice under the 1930 Act, then the Tribunal would need to consider the merits of his claims. On all of the medical evidence available to the Tribunal and including Mr Peterson's oral and documentary evidence related to the right thigh, the Tribunal does not consider that there can be any relationship between the right thigh injury and symptoms now experienced by him. In this regard, the Tribunal notes that the record on the Discharge History Questionnaire indicates a resolution of the right thigh injury. The Tribunal does not consider that this record would occur spontaneously without some information from Mr Peterson and examination of him. Furthermore, noting the evidence of Dr Smith and Dr Connolly, the Tribunal is reasonably satisfied that there is no relationship between the injury which occurred during Mr Peterson's employment with the RAAF and any symptoms he now experiences.

71. On the other hand, if the Tribunal accepted Mr Peterson's other evidence that he did not know of the need to claim or to provide a notice then this is ignorance and under the 1930 Act, cannot be accepted as a mistake or a reasonable cause as outlined in section 16 of the 1930 Act. On that scenario, there was no claim made within the requisite time and therefore there is no claim for compensation made under the 1930 Act and accordingly no payment of compensation made under the 1988 Act.

72. In all of the circumstances in relation to the claim for compensation for haematoma of the right thigh, the Tribunal finds that the decision under review is affirmed and that there is no liability for compensation payable for this condition.

Fractured Neck

73. Mr Peterson's evidence was that he did not know of a neck injury in the 1970's until he looked at his records in 1998. Furthermore, Mr Peterson did not submit a notice or a claim for any neck injury until 2000, some 30 years after the actual injury. Mr Peterson on the evidence was ignorant that he should have put in a notice and claim and, on this scenario, ignorance does not constitute a mistake. Other evidence in relation to the right thigh indicates that Mr Peterson knew of the need to claim in a timely fashion, but this did not then inflame him in relation to a claim for the fractured neck. Accordingly, as Mr Peterson's circumstances do not fall within the exceptions contained within section 16 of the 1930 Act, he cannot then claim compensation in the year 2000. If the Tribunal was wrong on its understanding of the application of section 16 to the evidence provided, then turning to the merits of the case, while it appears that an injury did occur arising out of a football injury when employed by the RAAF, such injury was not significant. The neck injury is not recorded in the Discharge History Questionnaire, furthermore, when Mr Peterson was examined by Dr Smith in 2001 and Dr Connolly in 2001 and 2002, he is noted to have a congenital fusion at C2/3 and degenerative disc space narrowing and arthritic changes. The symptoms Mr Peterson currently experiences in relation to his neck are related to congenital factors and the normal ageing process (T12, N2001/1601). Dr Connolly did not think that Mr Peterson had a fracture of the neck, although if there was a tiny flake fracture it was minor, had resolved and provided no disability (Exhibit R6).

74. Given all the evidence, the Tribunal finds that Mr Peterson does not meet section 16 of the 1930 Act in that he did not submit a notice and a claim and there was no reasonable excuse for this, nor was there any mistake. Furthermore, on the merits of the matter, all the evidence including expert medical evidence does not indicate, to the Tribunal's reasonable satisfaction and on the balance of probabilities, that the neck injury sustained during RAAF service relates to any symptoms which Mr Peterson currently now experiences.

Dislocation of the right shoulder

75. This injury occurred on 4 September 1966 and a claim was made on 5 December 2000. There is no evidence of any notice of this injury nor is there a claim made within the specified period of six months required under section 16 of the 1930 Act. There is no satisfactory evidence of a mistake or reasonable cause to allow the Tribunal to accept that there can be an exception to the operation of section 16 of the 1930 Act. On the Discharge History Questionnaire (T4, N2001/1501, p31) completed on 15 September 1982, there is mention of a fractured clavicle but it is noted to have resolved. Furthermore, the Tribunal finds that the Respondent is prejudiced in not being able to obtain necessary contemporary evidence detailing the medical condition of the right shoulder at the time including any medical reports or treatment and any witness statements. Mr Peterson's evidence, on one occasion was that he was ignorant that he could obtain compensation until he was informed of his rights by a friend in 1998. As has been previously noted, there is conflicting evidence that in relation to the haematoma of the right thigh muscles, Mr Peterson was aware that he could claim compensation and it should be done in a timely fashion. This knowledge in relation to the right thigh did not seem to exercise Mr Peterson's mind in relation to any of the other claimed conditions.

76. In relation to the operation of section 16 of the Act, the Tribunal finds that there is evidence to indicate that Mr Peterson was ignorant of his rights and this cannot constitute a mistake or reasonable cause. Alternatively, if he did know of the need to claim he did not submit a claim form and there was no reasonable cause why he did not do this. Accordingly, no claim for compensation can be entertained and no compensation is payable under the 1988 Act. Even if the Tribunal had found that Mr Peterson's circumstances met section 16 of the 1930 Act, and considered this matter on its merit, given Mr Peterson's evidence, the notation on the Discharge History Questionnaire, the continuation of his football activities and employment, in combination with the expert medical opinion of both Dr Smith and Dr Connolly, the Tribunal finds that any symptoms currently experienced by Mr Peterson in relation to his right shoulder are not causally related to his service with the RAAF and accordingly there is no liability arising for compensation. Accordingly, the decision under review in relation to the dislocation of the right shoulder is affirmed.

Broken Third and Fourth Fingers of the Right Hand

77. This injury occurred on 8 June 1970, when Mr Peterson was playing rugby union in Malaysia, with a claim being made on 18 December 2000. Medical records indicate many injuries to the third and fourth fingers of the right hand in 1968, in addition to further incidents in 1970 and 1974. No notice of injury or claim was made within the time periods required by section 16 of the 1930 Act. Mr Peterson had written that he had only found out about the possibility of compensation from a friend in 1998 (T6, N2001/1604, p11) and in his letter of 30 June 2001 to the Tribunal he stated that he saw an old service friend who informed him about the Department of Veterans' Affairs in 1988 and that he found out about military compensation in November 2000 and claimed for service injuries (Exhibit A2). Further he stated that he found out about compensation on 4 December 2000 (Exhibit A2). As has been previously noted, there is conflict in the evidence provided by Mr Peterson. On the one hand it seems that he knew about compensation in relation to the haematoma right thigh muscles and was waiting for claim forms. On other evidence, he thought that the notice of an injury in relation to the haematoma right thigh muscles was a claim. If Mr Peterson was aware of the possibility of compensation for haematoma of the right thigh muscles, the Tribunal cannot be reasonably satisfied that he did not also reasonably know about compensation available to him for other conditions. He did not claim, given this knowledge. Alternatively, Mr Peterson has provided evidence that he did not know of his rights to claim compensation. On either scenario, either he was ignorant of his rights and in this instance, section 16 of the 1930 Act is not satisfied. On the alternate scenario, if he did know of his claim rights, he did not pursue them. He cannot then in 2000, change his mind and decide to claim. The Tribunal finds that there was no mistake or reasonable cause to allow an exception under section 16 of the 1930 Act.

78. Even if section 16 was complied with and a claim and notice of injury to the right hand had been accepted by the Tribunal, given the medical evidence and Mr Peterson's evidence to the Tribunal, both documentary and oral, the Tribunal is satisfied that the current symptoms experienced by Mr Peterson relate not to injuries arising out of RAAF employment but rather to the restrictions caused by his Dupuytren's contracture. This condition is not in any way causally related to his employment with the RAAF.

79. Accordingly, on all of the evidence in relation to the claim for broken third and fourth fingers of the right hand, the Tribunal finds that there is no liability for compensation and therefore the decision under review in relation to this condition must be affirmed.

Dislocated Left Shoulder

80. This injury occurred in August 1978, although there are records of a number of earlier incidents. The claim for dislocated left shoulder was made on 18 December 2000. At the time of the claimed injury, the relevant legislation was the 1971 Act. The 1971 Act introduced the concept of ignorance as an exception to the requirement to provide a notice of an injury and claim for compensation as provided under sections 53 and 54 of the 1971 Act. If the Tribunal was to provide Mr Peterson with the benefit of the doubt that he was ignorant of his right to claim compensation, despite the conflicting evidence, then having crossed the threshold provided by sections 53 and 54 of the 1971 Act, the Tribunal must then consider Mr Peterson's claim for compensation under the 1988 Act. The Tribunal must look at the medical evidence in addition to Mr Peterson's evidence concerning this condition. Mr Peterson does have a left shoulder condition, but on the expert medical evidence provided by Dr Connolly and Dr Smith and in the absence of other medical evidence, the Tribunal finds that Mr Peterson suffers a degenerative disease of the rotator cuff related to the ageing process. Dr Smith considered that Mr Peterson would have developed this condition whether or not he had been employed in the RAAF or not. Dr Connolly opines that there is no abnormality as a result of the left shoulder dislocation. Accordingly, on consideration on all of the evidence, the Tribunal finds that there is no liability for compensation arising out of the dislocation of Mr Peterson's left shoulder. In these circumstances, the Tribunal affirms the decision under review in relation to this condition.

81. Accordingly, for all of the reasons expressed above and in all of the circumstances, the Tribunal finds that there is no liability for compensation payable to Mr Peterson in relation to any of the claimed conditions, namely haematoma of the right thigh muscles; fractured neck, dislocated left shoulder; dislocated right shoulder and, broken third and fourth fingers of the right hand. Accordingly, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 the decisions under review are affirmed.

I certify that the 81 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock, Senior Member and Dr P D Lynch, Member

Signed:.

....................................................................................

Associate

Date of Hearing 28 May 2002

Date of Decision 24 January 2003

Representative for the Applicant Self-Represented

Representative for the Respondent Mr G Johnson of Counsel

Solicitor for the Respondent Ms S Hamer, Australian Government Solicitor