Bain and Military Rehabilitation and Compensation Commission
[2006] AATA 822
•27 September 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 822
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos S2005/90 &
VETERANS’ APPEALS DIVISION ) S2006/120 Re OWEN WILLIAM BAIN Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date 27 September 2006
Place Adelaide
Decision
The tribunal makes the following provisional decisions on preliminary issues that have arisen in the within proceedings, based on the material currently before the tribunal.
(a) The decision of the delegate of the respondent dated 6 May 1999 not to allow an extension of time within which the applicant could request reconsideration of two earlier determinations of 19 April 1971 and 26 November 1975 is a reviewable decision.
(b) The applicant made a claim for compensation on or about 10 December 1969 in which he referred only to his knee collapsing when he was in his living quarters, and did not refer to jumping from the back of a truck.
(c) The applicant made a claim for compensation on or about 19 November 1974 in which he referred to an injury sustained as a result of two events, namely jumping from the back of a truck and the knee collapsing when he was in his living quarters.
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Deputy President
CATCHWORDS
COMPENSATION - Commonwealth employees – applicant injured on 29 October 1969 during Army service – claims for compensation and certain other records lost – the determinations made in 1971 and 1975 rejecting claims for compensation – request in 1999 to allow extension of time for request for review of determinations – construction of the determination of that request – refusal to consider request would be a reviewable decision – further claim for compensation made in 2004 – contention by respondent that further claim invalid if it relates to same event as either of applicant’s earlier claims – preliminary findings of fact as to which of two asserted events were referred to in 1969 and 1974 claims.
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 62(3)(b) and s 124
Commonwealth Employees’ Compensation Act 1930 (Cth), s 16
Cao and Australian Postal Corporation (1999) 61 ALD 299
Comcare v Willems (1996) 43 ALD 253
Re Beecher and Telstra Corporation (1994) (AAT 9245, 17 January 1994)
Re Berry and Comcare [2006] AATA 352
Re Jebb and Repatriation Commission (2005) 86 ALD 182
Re Young and Telstra Corporation Limited (1993) 32 ALD 307
J.O. Ballard and P. Sutherland, Annotated Safety, Rehabilitation and Compensation Act 1988, (7th Edition, 2005)
REASONS FOR DECISION
27 September 2006 Deputy President D G Jarvis 1. The applicant, Owen William Bain, has claimed compensation for an injury to his right knee which he asserts was caused by an accident on 29 October 1969 at the Randwick Army Barracks.
2. Mr Bain has brought two separate applications to this tribunal for review of decisions made by the respondent. Complex preliminary questions have arisen because certain relevant records cannot now be located. It is necessary to determine what claims for compensation have been made by Mr Bain, and what reviewable decisions have been made by the respondent or its predecessors, as these matters will potentially affect the status of the applications before this tribunal, and what issues will arise in order to determine those applications.
First application to this Tribunal
3. The first application to this tribunal is matter number S2005/90. That arises from a claim by Mr Bain for compensation, received by the respondent Commission on 28 May 2004, for an injury to his right knee sustained on 29 October 1969. The claim form asserts that he was jumping out of the back of a Mack 3 truck when the injury occurred, and as he landed his knee twisted (see exhibit A1, page 53). After some equivocation the respondent treated this as a new claim for compensation, but rejected the claim on the basis that the delegate of the Commission was not satisfied that the knee injury occurred in the circumstances claimed (exhibit A1, pages 66, 71 and 135). That rejection was subsequently reconsidered, and in a reviewable decision dated 29 March 2005, the rejection of the claim was affirmed on the grounds that the delegate did not consider that Mr Bain had sustained a personal injury by accident arising out of or in the course of his employment by the Commonwealth, and further, the delegate did not consider that the knee condition was due to the nature of his military service (exhibit A1, pages 143 – 146).
4. Mr Bain applied to this tribunal for review of the above reviewable decision of 29 March 2005. In its Statement of Facts and Contentions, the respondent contended that Mr Bain’s claim should not be admitted because he had failed to give notice of the accident as soon as practicable after it had happened, and the claim for compensation had not been made within six months from the occurrence of the accident, as required by s 16 of the Commonwealth Employees’ Compensation Act 1930 (Cth) (the “1930 Act”).
5. The application was listed on 3 November 2005 to determine whether this tribunal had jurisdiction to entertain the application in view of the respondent’s above contentions. Certain documents were tendered, and Mr Bain gave some evidence-in-chief. At that stage, I suggested that the matter be adjourned to enable the respondent to conduct further searches for missing records.
6. I understand that the respondent then caused further investigations to be made, and certain further documents were discovered. However, as mentioned below, certain very important documents are still missing.
Second application to this Tribunal
7. The second application for review to this tribunal is matter number S2006/120, and was lodged on 15 May 2006. That arises out of a request for reconsideration of two earlier determinations made by delegates of the Commissioner for Employees’ Compensation, on 13 April 1971 and 26 November 1975 respectively.
8. The claims for compensation referred to in those determinations have apparently been lost. However, from the documents that remain available it appears that the first claim was dated 10 December 1969 and the second claim was made in November 1974. It further appears from those documents that the respondent and its predecessor, the Commissioner for Employees’ Compensation, treated the first of the above claims as a claim that Mr Bain injured his knee when the knee collapsed either as he was entering the hut which constituted his living quarters at the Randwick Army Barracks, or when he was walking in an isle within the hut. In the case of each of the above claims, the delegate was not satisfied that the injury to the knee arose out of or in the course of employment, and the claim for compensation was rejected.
9. Mr Bain took no steps to challenge those determinations at the time. However, many years later he consulted solicitors in Melbourne, and after they had obtained certain documents from the Department of Defence, they requested, by a letter dated 23 February 1999, a “reconsideration of (Mr Bain’s) medical, factual and legal considerations with respect to claiming compensation for his right knee condition” (exhibit A1, T8, page 45). This clumsily worded request was treated (correctly in my view, having regard to its context) as a request for reconsideration of the decisions made on 19 April 1971 and 26 November 1975; and in a decision of 6 May 1999, a delegate decided: “I do not further consider (Mr Bain’s) appeal in regard to the decisions about his knee” (exhibit A1, page 59). The delegate pointed out in his reasons for his decision that Mr Bain had not exercised his rights to appeal against the earlier determinations rejecting his claims in 1971 and 1975. The delegate advised Mr Bain of his rights to apply to this tribunal for review of his decision.
10. Under par 62(3)(b) of the Safety, Rehabilitation and Compensation Act 1988 (the “1998 Act”), the Commission has a discretion to extend the period of 30 days in which a request for reconsideration must be made. After being notified of the decision of 6 May 1999 referred to above, Mr Bain did not at that stage apply to this tribunal for reconsideration of that decision. Instead, on 28 May 2004, another lawyer who was then acting for him lodged with the Commission the claim for compensation referred to in paragraph 3 above. However, following comments that I made at a directions hearing earlier this year, Mr Bain lodged an application to this tribunal for review of the decision of 6 May 1999, and also applied for an extension of time in which to lodge that application.
11. The respondent has objected to the application for an extension of time to lodge the above application to this tribunal. If an extension of time is granted, the respondent also opposes the application for review of the decision not to allow Mr Bain an extension of time to request reconsideration of the decisions of 19 April 1971 and 26 November 1975.
Issues before the Tribunal
12. As I understand the evidence before me so far and the parties’ submissions, the preliminary issues which should be determined by me by way of a preliminary determination are as follows.
(a)Did the decision of 6 May 1999 constitute a reviewable decision not to allow an extension of time within which a request to reconsider the earlier determinations of 19 April 1971 and 26 November 1975 could be given (in which case it is common ground that it was a reviewable decision), or was the determination of 6 May 1999 a refusal to exercise that discretion, and if so, was that refusal a reviewable decision?
(b)Did Mr Bain claim compensation in 1969 (having regard to his evidence that he did not do so and records indicating to the contrary)?
(c)If he did claim compensation in 1969, did that claim refer to an injury sustained when he jumped from the back of a truck, or was it confined to a claim based on an injury sustained when his knee collapsed while he was in the hut?
(d)Did Mr Bain’s 1974 claim for compensation refer to an injury sustained when he jumped from the back of a truck, or an injury suffered when his knee collapsed while he was in the hut, or did it refer to both of those events?
13. The first of the above issues entails interpreting the effect of the decision of 6 May 1999, but for reasons referred to below, I think the decision was a reviewable decision even if on its proper construction it was a refusal to exercise the relevant discretion.
14. The issues referred to in subparagraphs (c) and (d) of paragraph 12 above arise from a contention made by the Commission after Mr Bain had lodged the 2006 proceedings in this tribunal. The Commission contended that because (as then appeared) Mr Bain was asserting that his November 1974 claim was for compensation arising from allegedly jumping from a truck on 29 October 1969, he would not be entitled to pursue his 2004 claim, in which he also asserted that he was injured as a result of jumping from the back of the truck. This was because (so it was contended) the 1988 Act does not permit an applicant to renew an application for compensation in relation to an injury after a decision denying liability has been given, where the claimant has not pursued his or her review rights. The Commission relied in support of its contention on the decision of this tribunal in Re Cao and Australian Postal Corporation (1999) 61 ALD 299, where the tribunal said, at [10]:
“Section 54 of the Act, in prescribing how a claim for compensation is to be made, cannot be used in lieu of, or in substitution for the formal requirements demanded of a person wishing to make an application for review of decision, let alone as a back door way of reviewing a reviewable decision by a party which is otherwise out of time: see Re Everfresh Seafoods Pty Ltd v Australian Fisheries Management Authority (1999) 58 ALD 581 at [5].”
The tribunal’s reference to par [5] of the Everfresh case it cites is incorrect; it should have been to Re Everfresh Seafoods Pty Ltd and Australian Fisheries Management Authority (1999) 54 ALD 433 at [5].
15. The respondent’s solicitor also relied upon a statement by the Full Federal Court in Comcare v Willems (1996) 43 ALD 253 at 258, where the Full Court said:
“However, it was accepted before the primary judge on behalf of both parties that it was not open to the respondent to make a fresh claim under the SRC Act for particular injury in respect of which he was seeking to have his compensation payments reinstated … .”
16. Neither party referred to the above authorities or to the above contention by the Commission at the resumed hearing before me, although both parties appeared to accept the correctness of the contention. I note, however, that some doubt has been expressed as to the correctness of the tribunal’s approach in Cao: see J.O. Ballard and P. Sutherland, Annotated Safety, Rehabilitation and Compensation Act 1988, (7th Edition, 2005) at [54.03], and to the extent that issue estoppel may be relevant, see also Ballard and Sutherland at [61.03] and the cases there cited, and Re Jebb and Repatriation Commission (2005) 86 ALD 182. It is not necessary for me to determine whether the respondent’s contention is correct at this stage of the present proceedings.
17. Both parties did, however, agree that I should make factual findings as to the claims previously made by Mr Bain, as this would establish which of the applications to this tribunal would proceed, and depending on this, what further issues would need to be determined in those proceedings in order for the tribunal to ultimately determine Mr Bain’s claim for compensation. Of course, any such findings I make at this stage of the proceedings can be based only on the evidence so far available to me, and both parties agreed that any factual findings I might make in relation to the above preliminary issues should be provisional findings.
18. Mr Bain gave further evidence at a resumed hearing on 5 September 2006 in relation to the preliminary issues referred to in paragraph 12 above. His evidence was directed to matters relevant to those issues, and not to possible further issues as to whether the time for applying for review to this tribunal in the 2006 proceedings should be extended, or as to the merits of the claims for compensation, or whether the 2004 claim for compensation should not be admitted having regard to the requirements to give notice of accident and to claim compensation within the time periods referred to in s 16 of the 1930 Act.
Background Facts
19. The following background facts were not in contention, and are derived partly from the documentary evidence, and partly from evidence of Mr Bain that was not disputed.
20. Mr Bain was born on 26 October 1950. He enlisted in the Australian Army on 28 July 1968, and was discharged at the end of his period of engagement on 27 July 1971. At the date of his accident, 29 October 1969, he was engaged in a driver training course at the Randwick Army Barracks in Sydney.
21. Following the event in the hut on that date, Mr Bain’s knee was painful and swollen, and he was admitted to 2 Military Hospital at Ingleburn, New South Wales, the next morning. A meniscectomy was carried out on 4 December 1969. He was discharged on 19 December 1969, after 51 days in hospital.
22. In March 1970 he was promoted to lance corporal, and was posted as a storeman at Randwick. Later, in February 1971, his duties entailed driving a bus.
23. After he left the Army he worked as an express freight clerk and then as a driver with an interstate carrier.
24. Mr Bain gave evidence that he continued to have pain and discomfort with his knee following his discharge from hospital in December 1969 and until he was discharged from the Army in July 1971.
25. He said that he had increasing trouble with his knee in 1974, and was referred by his general practitioner to Mr W J Betts, an orthopaedic surgeon. Mr Bain finally had to give up his work with the transport company on 22 January 1975. He underwent an operation on 30 January 1975. Over the years since then his knee became worse. He underwent further surgery in 1997, and has had ongoing problems with his knee.
Consideration
26. I consider that the letter of 6 May 1999 from the Department of Defence to Mr Bain’s Melbourne lawyers (exhibit A1, pages 59 – 60) constitutes a refusal to exercise the discretion to allow an extension of the period of 30 days within which, under par 62(3)(b), an application for review of the earlier determinations was required to have been made. In reaching this interpretation I refer in particular to the first two paragraphs on the second page of the letter which refer to Mr Bain’s failure to exercise his rights to appeal against the adverse decisions made in 1971 and 1975, and in the context of the 1975 decision, the delegate points out that Mr Bain was “well out of time to do so, i.e. by some 24 years” (exhibit A1, page 60). On that interpretation, the parties accepted that the decision was a reviewable decision, and that follows from Re Beecher and Telstra Corporation Limited (1994) (AAT 9245, 17 January 1994).
27. However, even if (contrary to my above view) the letter of 6 May 1969 is interpreted as a refusal to allow the relevant extension of time, I consider that such a refusal would be a reviewable decision: Re Young and Telstra Corporation Limited (1993) 32 ALD 307; and Re Berry and Comcare [2006] AATA 352 at [55]. As the Full Federal Court observed in Comcare v Willems, (supra) at 259, the obligation to consider allowing an extended time for reconsideration arises automatically on receipt of an out-of-time request for reconsideration, and subsection 62(2) does not require a separate application for the granting of a further period for making that request.
Did the applicant make a claim for compensation in 1969?
28. Mr Bain maintained in his evidence that he had not claimed compensation in 1969. It appears that he believes that he did not need to make any such claim, because at the time of his accident he was serving in the Army, and was treated at a military hospital by Army doctors. He also drew attention to the investigating officer’s report dated 5 December 1969, a copy of which is at page 109 of exhibit A1, and to the alteration from “No” to “Yes” in answer to the question of whether a claim for compensation had been made.
29. I am satisfied, however, that Mr Bain is mistaken, and that a claim for compensation was made. Specific reference to such a claim is made in the determination dated 19 April 1971, and that determination would hardly have been made if Mr Bain had not made a claim for compensation. Other references to a claim for compensation appear in the report dated 10 February 1971 (exhibit A1, page 35) and in the documents appearing in exhibit A1 at page 109 (in paragraph 4(a)) and page 113 (although curiously, these documents are dated 5 December 1969, whereas the above report dated 10 February 1971 refers to a claim for compensation dated 10 December 1969). The Discharge History Questionnaire dated 23 June 1971, in answer to question 43 as supplemented by a comment to that question and answer, also refers to a claim for compensation having been made for a knee injury (exhibit A1, page 74). The records still available also include a copy of a “Report of an Injury or Illness” signed by Mr Bain on 13 November 1969, which would ordinarily have been the forerunner of claim for compensation (see exhibit A1, page 106).
What event(s) was the 1969 claim based on?
30. The delegate’s decision is dated 19 April 1971. It comprises three short paragraphs in which the delegate merely sets out his conclusions. He does not set out the basis of the claim for compensation, other than to say that the claim for compensation was “in respect of internal derangement of right knee joint”. He does not state whether the claim made reference to the circumstances in which the accident occurred. Nor does he give any reasons for his decision.
31. However, some indication of the contents of the claim for compensation is contained in the above report dated 10 February 1971, which was apparently requested in an endeavour to clarify the time of day when Mr Bain’s knee gave way in the living quarters. Paragraph 1 of this report reads:
“A claim for compensation has been lodged by the abovenamed ARA member in respect of ‘internal derangement of right knee joint’ which he attributed to his right knee giving way from under him at 1930 hours on 29 October 1969 at ECTTC, Randwick.” (exhibit A1, page 35)
The report goes on to refer to other “forms”, and the first entry reads:
“Claim for Compensation
Form A (dated 10 December 69)
1930 hrs 29 Oct 69
CR’s quarters leg gave way from under me.”
32. The information referred to in the preceding paragraph is consistent (except as to the time of day) with the prior report of injury (exhibit A1, page 106), a brief statement from Mr Bain dated 4 December 1969, brief statements from two witnesses to the event in the hut, and medical records that are still available. None of the available records prior to 10 December 1969 (being the date of the Claim for Compensation Form A, according to the above report of 10 February 1971) refer to Mr Bain having jumped from the back of a truck.
33. The respondent called Myles Arthur Johnson to give evidence by telephone. He was formerly a captain in the Army and had been appointed the investigating officer to investigate the injury sustained by Mr Bain on 29 October 1969. Mr Johnson obtained a statement from Mr Bain and statements from two witnesses, and prepared a report of his investigations. He gave evidence that neither Mr Bain nor the witnesses referred to an earlier event involving Mr Bain jumping from the back of a truck on the day of the injury (although it appears that he did not specifically inquire into events earlier in the same day).
34. Taking into account the above matters, my provisional finding is that Mr Bain made a claim for compensation dated 10 December 1969, and that this claim referred only to the collapse of the knee in his living quarters, and made no reference to his having jumped from a truck and thereby injured his knee.
What event or events was the 1974 claim based on?
35. As mentioned above, the claim for compensation made by Mr Bain in 1974 is also missing. Mr Bain gave evidence that he completed a claim form, and that he referred to both of the events that happened on 29 October 1969, namely jumping from the back of a truck and the later collapse of his knee inside the living quarters.
36. There is an even greater scarcity of documentary evidence referring to the 1974 claim. The determination of 26 November 1975 merely refers to a claim for compensation “in respect of injury to cartilage in right knee”. As was the case with the determination of 19 April 1971, the determination merely states the delegate’s conclusion, but contains no other relevant information. There was also a long delay, again of more than one year, before this determination was made.
37. Exhibit A1 also includes, at page 121, a “Compensation Record Sheet” dated 19 November 1974 addressed to “CARO(2)”, being as I understand it Central Army Records Office. The form commences:
“Please supply the following information concerning
…..…449911……. .…PTE…. ….O.W. BAIN….
(Army No) (Rank) (Name)who is claiming compensation under the Commonwealth (Commonwealth Employees) Act 1971 for the injury sustained on …Oct 1970…
(Date)”
The form is signed by someone described as a compensation officer. The form then makes provision for detailed information to be provided, but none of that information is completed. Instead, someone has scrawled across the remainder of the form “Completed & fwd 9/19/2” (although the last figure is not clear).
38. Exhibit A1 then includes a minute dated 12 December 1974 from the Health Records Section of the Department of Defence at Albert Park Barracks in Melbourne to the Compensation Section enclosing a medical summary of medical records relating to Mr Bain. The medical summary is also dated 12 December 1974, and is a type-written transcription of handwritten notes apparently also made on 6 December 1974 by copying extracts from other primary documents.
39. The reference on the Compensation Record Sheet to the date of injury of October 1970 is curious. It does not refer to a day of the month. Whilst the medical records still available refer to one medical assessment, on 3 October 1970, being an orthopaedic specialist review, there is no reference to an injury having occurred on that date, or on any other date in October 1970. Indeed, there is no record of any further accident or injury involving Mr Bain during the period from 29 October 1969 to the date of his discharge from the Army in July 1971. The documents still available include his record of service. This record includes a reference to the injury sustained on 29 October 1969, but not to any other injury or accident. I also note that another form with the same file reference, bearing the same date and apparently signed by the same person as the Compensation Record Sheet, also refers to the “condition” having been sustained in October 1970, but also says that he was treated at Randwick. As I understand the material before me this latter reference is also inconsistent with the location to which he had been posted by October 1970, and with the place of his hospitalisation, which was at Ingleburn. These discrepancies suggest that the information on these forms, including in particular the reference to the date of the injury, is unreliable.
40. Some other Army records refer to Mr Bain having been injured when he jumped from a truck. The entry in the medical summary relating to the orthopaedic specialist review on 3 October 1970 relates a history of having “three months ago jumped from a truck” (see exhibit A1, page 123, paragraph 4(b)). The same summary also refers in sub-paragraph 5(d) to the final medical board report of June 1971 of a disability “due to an occurrence during service, attributable to service – slipped when alighting from a truck twisting R. knee”. The medical summary refers earlier in sub-paragraph 2(b), to an incident described as “while walking last night knee suddenly gave way. No previous history of trauma”.
41. The records still available also include a copy of a medical report dated 27 June 1975 from Mr Donald Beard, an orthopaedic surgeon to whom Mr Bain was referred for assessment, following his operation on 30 January 1975. In this report, Mr Beard refers to the applicant having suffered an injury during his army service when he slipped on the floor and twisted his knee, and also to his having worked until 22 January 1975 when he “jumped from a truck on to the right knee and developed acute pain”. Mr Beard concludes that the operation in January 1975 was due to the injury earlier that month and not to the injury during Army service.
42. Mr Bain gave evidence that he had no other accident during the period from 29 October 1969 until his operation on 30 January 1975. In particular, he said he did not jump from a truck on 22 January 1975, and said that this was the last day that he worked at his former employer. However, he said he had seen Mr Betts well before then, and (as appears from the Compensation Record Sheet referred to in paragraph 37 above) he had lodged a claim for compensation prior to the date of that record, 19 November 1974, because of ongoing problems with his knee. I accept Mr Bain’s evidence as to these matters. His evidence is consistent with the fact that prior to November 1974, some of the Army records still available do refer to an injury sustained when he jumped from the back of a truck. The reference to the date of such an injury in the orthopaedic specialist review on 3 October 1970 appears to be incorrect, as it is inconsistent with other available records. Further, on Mr Bain’s evidence, Mr Beard’s report, whilst referring to an event involving jumping from the truck, also appears to be incorrect insofar as he recounts the date and circumstances of the event. If the event had occurred in the course of Mr Bain’s employment on 22 January 1975 I would have expected him to have claimed compensation from his then employer, but there is no evidence before me that he ever made any such claim.
43. Doing the best I can on the unsatisfactory state of the evidence before me, I find (provisionally, as mentioned above) that Mr Bain made a claim for compensation on or shortly before 19 November 1974, and that his claim for compensation related to two events on 29 October 1969, namely jumping from the back of an Army truck, and the subsequent collapse of his knee later on 29 October 1969 when he was in his living quarters. I further find (again provisionally) that the reference to the date of October 1970 in the Compensation Record Sheet is incorrect, and that the relevant date should correctly have been 29 October 1969.
44. I propose to list the two applications before this tribunal for further directions, when consideration is to be given to the further conduct of the applications, having regard to my above provisional findings as to the basis of the applicant’s claims for compensation.
Decision
45. The tribunal makes the following provisional decisions on preliminary issues that have arisen in the within proceedings, based on the material currently before the tribunal.
(a)The decision of the delegate of the respondent dated 6 May 1999 not to allow an extension of time within which the applicant could request reconsideration of two earlier determinations of 19 April 1971 and 26 November 1975 is a reviewable decision.
(b)The applicant made a claim for compensation on or about 10 December 1969 in which he referred only to his knee collapsing when he was in his living quarters, and did not refer to jumping from the back of a truck.
(c)The applicant made a claim for compensation on or about 19 November 1974 in which he referred to an injury sustained as a result of two events, namely jumping from the back of a truck and the knee collapsing when he was in his living quarters.
I certify that the 45 preceding paragraphs are
a true copy of the reasons for the decision
herein of Deputy President D G JarvisSigned: .....................................................................................
B Bills AssistantDate/s of Hearing 3 November 2005 and 5 September 2006
Date of Decision 27 September 2006
Counsel for the Applicant Mr T Bourne
Solicitor for the Applicant Bourne Lawyers
Counsel for the Respondent Ms K Bean
Solicitor for the Respondent Australian Government Solicitor
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