Alexander and Military Rehabilitation and Compensation Commission

[2006] AATA 781

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 781

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/799

VETERANS’ APPEALS DIVISION		)
Re		NOEL ALEXANDER

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date13 September 2006

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

...............[Sgd]...............................

SENIOR MEMBER

CATCHWORDS

WORKERS’ COMPENSATION – CCGE Act – proper notice of injury to be given to the Commissioner – delay in making claim – prejudice to the Commonwealth – applicant ineligible for compensation

Compensation (Commonwealth Government Employees) Act 1930 s 16

Safety Rehabilitation and Compensation Act 1988 s 124

Commonwealth v Connors (1989) 86 ALR 247

Luck and Comcare [1998] AATA 125

Muras and Department of Defence [1998] AATA 645

REASONS FOR DECISION

13 September 2006

introduction

Senior Member B J McCabe

1.      Noel Alexander was a passenger in an Army vehicle that crashed at the High Range Training Area, near Townsville on 2 June 1970. He was injured and taken to hospital. He says (and the medical records confirm) he suffered a laceration to the muscle of the right calf on that date. He was a serving member of the defence forces at the time. He did not file an accident report with the Commissioner for Employees’ Compensation in relation to the accident pursuant to the Compensation (Commonwealth Government Employees) Act 1930 (the CCGE Act). He now seeks compensation in respect of the injury.

2.      Claims made in respect of injuries sustained prior to the enactment of the Safety Rehabilitation and Compensation Act 1988 (the SRC Act) can only succeed if compensation would have been payable under the legislation in force at the time of the applicant’s service: s 124 SRC Act. It follows the Tribunal must have regard to the terms of the CCGE Act.

3.      The Military Rehabilitation and Compensation Commission (the MRCC) is now responsible for administering the workers’ compensation claims of present and former members of the defence forces. The MRCC says Mr Alexander’s claim cannot succeed because he failed to notify the Commissioner of the accident or make a claim within the time limits provided for in s 16 of the CCGE Act. The respondent says those failures will result in prejudice to the Commonwealth, and cannot be explained by mistake, absence from Australia or other reasonable cause. In those circumstances, the respondent says a claim for compensation under the SRC Act cannot be made.

4. The parties argued the point at a hearing in Cairns on 12 December 2005. Mr Honchin represented the applicant and Mr Rangiah represented the respondent. The applicant gave evidence in person. Mr Ontong, an employee of MRCC, gave evidence by telephone. His statement was tendered. The documents prepared pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 were also tendered.

5.      After adjourning and taking the opportunity to reflect, I recalled the parties to ask the respondent to carry out further searches for information. Those searches were duly undertaken. The respondent was unable to identify any further information regarding the incident, or any witnesses.

6.      I am satisfied the applicant’s claim cannot succeed. I explain my reasons below.

the factual background

7.      I have already noted the applicant was injured in a vehicle accident while on duty on 2 June 1970. He was treated for his injuries in hospital. When he returned to work, he was placed on light duties for a time.

8.      The applicant says he did not seek compensation from his employer in respect of the injuries because he was under the impression that “being injured while in the services was ‘part of the job’”: document T8. He told the respondent in correspondence (document T8):

At the time of [the injury] I was unaware of and was not informed of the relevant compensation act….I was not aware of coverage under any employee’s compensation act.

9.      Mr Alexander explained in his oral evidence that he knew he was entitled to free health care if he was sick or injured. He also knew he would be paid and looked after while he recovered from injuries. But he says he thought that was the extent of his employer’s obligations to him.

10.     The respondent called Mr Ontong to establish that allowing a claim to proceed now would result in prejudice to the Commonwealth. Mr Ontong’s statement said the respondent would be unable to identify and locate witnesses (including the treating doctors) who could shed light on the accident and injury. Mr Ontong said the respondent did not have the opportunity to examine the applicant at the time of the injury or at the time of his discharge. Mr Ontong said his searches for records of the accident and the applicant’s injury proved fruitless.

11.     Under cross examination, Mr Ontong agreed he did not contact the military police or 18 Field Regiment, the unit which operated the training area where the accident occurred. He said his searches focused on the applicant’s personnel and medical records because accident reports and other relevant documents would have made their way onto those files. He made it clear he would be surprised if individual units retained relevant records some 34 years after the events in question. He also agreed he had not attempted to contact former Warrant Officer Swan. WO Swan apparently took the applicant’s report at the time of the accident. The applicant referred to another witness who might also be contactable, but Mr Ontong agreed he had not sought out that individual.

12.     The respondent undertook further searches after the hearing at the Tribunal’s request to identify whether any witnesses or records relevant to the incident were still available. Nothing else was found.

the relevant legislation

13.     Section 16(1) of the CCGE Act says:

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.

14.     This case turns on whether the applicant is able to satisfy the Tribunal that the proviso in s 16(1) applies to excuse his failure to file a notice or make a claim within the time envisaged by the Act.

15.     Mr Honchin notes the first limb of the proviso incorporates two genuine alternatives. He says his client is entitled to proceed if there is no prejudice or the failure to notify was caused by mistake, absence or reasonable cause. I will deal with the question of prejudice first.

16.     Mr Honchin argued at the hearing that the respondent had not conducted a sufficiently thorough investigation to enable it to determine whether or not it will be prejudiced. He suggested several courses of inquiry that remained open to the respondent. The respondent subsequently made further inquiries, but nothing came to light. I am satisfied the paucity of evidence available makes things much more difficult for the respondent than they might otherwise have been if the claim had been made in a timely fashion. I accept it will be prejudiced in its defence if it is required to proceed with the claim.

17.     The applicant’s only hope is to establish that his failure to report the incident was caused by mistake, absence or reasonable cause. There is no evidence to suggest the applicant was absent from Australia. But what of the other grounds?

18.     The applicant argued he was labouring under a misapprehension as to the existence of an entitlement to compensation because the Commonwealth provided him with comprehensive medical coverage and accommodated him within the defence forces following his accident so he did not lose pay. He argued, in effect, that the benevolent approach of the defence forces towards its sick and injured personnel caused him to assume there was no workers’ compensation scheme like that which existed for civilian employees – and therefore no need to report incidents with a view to making a claim.

19.     Cases like Muras and Department of Defence [1998] AATA 645 (at paragraph 20 per DP McMahon) and Commonwealth v Connors (1989) 86 ALR 247 (at 251-252 per Northrop and Ryan JJ) make it clear that ignorance of an entitlement is no excuse for failing to file a claim. But Mr Honchin argued that general rule does not apply here. He said the applicant’s ignorance of an entitlement to compensation because he was unaware of the existence of a compensation scheme can be distinguished from the situation where the applicant knew of a compensation scheme but was not aware he was eligible to make a claim. Mr Honchin relied on the decision in Luck and Comcare [1998] AATA 125. Senior Member Hotop (as he then was) suggested (at paragraph 51) that “ignorance of the claims process” might be a reasonable cause for failing to file a notice within the required time frame. That may be so, but only if the ignorance is itself reasonable. The applicant says he did not know of the existence of a claim process but the defence forces did nothing to engender that belief. He did not suggest he was ever told there was no such process. It is hard to imagine how anyone could have arrived at that view merely because they received all of their health care free of charge.

20.     The applicant’s argument must also be seen in light of the extent of the delay in making a claim. The accident occurred over 30 years before he thought to seek compensation. His explanation for the delay, in effect, is that he was a naïve serviceman who did not question his entitlements because of the nature of his service. But it is now sometime since he has been a naïve youth. The applicant has rested on his rights for a significant period – rights that he must have known to have existed.

21.     I am not persuaded that the applicant was mistaken about his entitlements, either. He says in his evidence that he was operating under a misapprehension. I have already concluded that he if he was operating under a misapprehension, it was not engendered by anything he was told by his employer or the respondent. However I have also concluded I would be surprised if anyone would ever come to misunderstand their entitlements as a result of the behaviour of the Army towards its personnel. The applicant insists he held a mistaken view of his entitlement at the time, but I do not accept that assertion in the circumstances.

conclusion

22.     The applicant is unable to satisfy the requirements in the proviso to s 16(1) of the CCGE Act. He is therefore ineligible for compensation in respect of his injuries under the SRCA: s 124 SRCA.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.

Signed:         .....................................................................................
  Associate      Adam Ryan

Date/s of Hearing  12 December 2005 & 13 February 2006
Date of Decision  13 September 2006
Date of Final Material                4 September 2006
The applicant was represented by Mr Honchin, of Counsel.
The respondent was represented by Mr Rangiah, of Counsel.