Batten and Comcare
[2003] AATA 387
•28 April 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 387
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1946
GENERAL ADMINISTRATIVE DIVISION ) Re ANTHONY BATTEN Applicant
And
COMCARE
Respondent
DECISION
Tribunal Dr J D Campbell, Member Date28 April 2003
PlaceSydney
Decision The Tribunal affirms the decision under review. [SGD] Dr J D Campbell Member
CATCHWORDS
COMPENSATION - Commonwealth Employees' Compensation Act 1930 - disease - due to the nature of the employment - failure to claim within six months of the occurrence - reasonable cause
Safety, Rehabilitation and Compensation Act 1988 - ss 123A, 124
Commonwealth Employees' Compensation Act 1930 – 1970 s4, 9, 10, 16
Commonwealth v Bourne (1960) 104 CLR 32
Commonwealth v Thompson (1960) 104 CLR 48
Commonwealth v Rutledge (1964) 111 CLR 1
REASONS FOR DECISION
28 April 2003 Dr J D Campbell, Member 1. In this matter, Mr Anthony Batten ("the Applicant") seeks a review of the decision of the Reconsideration Manager of the Commonwealth Department of Veterans' Affairs (“the Respondent” – Comcare) dated 21 September 2001. This decision affirmed an earlier decision of the Respondent dated 29 June 2001 denying the Applicant's claim for compensation in relation to any psychiatric condition from which he is suffering or may have suffered as a consequence of his service in the Australian Army. This determination by the Respondent also denied liability for compensation to the Applicant for particular physical ailments that he has suffered as a consequence of medication prescribed for his psychiatric condition.
2. A hearing was conducted on 17 February 2003, commencing at 19.00 hours, in which the unrepresented Applicant participated by way of telephone from Scotland. Mr Johnson of Counsel represented the Respondent. Dr Champion, a Consultant Psychiatrist attended and presented oral evidence, as did the Applicant.
3. The following material was placed into evidence before the Tribunal:
Exhibit
Description
Date
T1-T33
Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
A1
Submission by Applicant
21 May 2002
A2
Submission by Applicant
11 June 2002
A3
Submission by Applicant
23 July 2002
A4
Submission by Applicant
14 August 2002
A5
Submission by Applicant
30 August 2002
A6
Submission by Applicant
20 September 2002
A7
Submission by Applicant
5 October 2002
A8
Submission by Applicant
31 October 2002
A9
Submission by Applicant
7 January 2003
A10
Submission by Applicant
18 January 2003
A11
Submission by Applicant
19 January 2003
A12
Submission by Applicant
23 January 2003
A13
Submission by Applicant
24 January 2003
A14
Medical report of Dr Leslie
25 April 2002
A15
Medical report of Dr Winnie
6 September 2002
A16
Medical report of Dr Bianchi
17 June 2002
A17
Medical report of Dr Sharp
13 January 2003
A18
Letter from the Applicant to the Respondent titled “Introduction”
Undated
A19
Letter from the Applicant to the Respondent
10 November 2001
A20
Bundle of documents containing letters from Applicant to Dr Ropple and the Respondent
3,4,4,10,28 January 2002, 26, 28 January 2002
A21
Bundle of documents containing letters from Applicant to the Respondent
17 February 2002, 10 March 2002
A22
Applicant's submission
18 February 2003
R1
Respondent's Statement of Facts and Contentions
9 January 2003
R2
Medical report Dr Champion
23 October 2002
Issues
4. The relevant issues in this matter are:
(a) whether the Applicant's claim for compensation can be admitted for consideration due to his failure to comply with the limitation period under section 16 of the Commonwealth Employees' Compensation Act1930; and
(b) whether the Applicant is suffering from a disease that is due to the nature of his employment with the Commonwealth; and
(c) whether the Applicant is entitled to receive weekly benefits for any incapacity for work and medical treatment expenses pursuant to the Safety, Rehabilitation and Compensation Act 1988.
Legislation
5. The relevant legislation in this matter is:
· The Safety, Rehabilitation and Compensation Act1988 ("the 1988 Act"): sections 123A and 124
· Commonwealth Employees' Compensation Act1930, ("the 1930 Act"): sections 4, 9, 10 and 16.
Background
6. The Applicant was born in England on 29 January 1949 and is currently residing in Hawick, Scotland. The Applicant is noted as stating that his parents were divorced when he was eight years old, after which he spent time at boarding schools to the age of 12, before returning to live with his mother. It is recorded that he left school at 18 years of age, having been an average student, but good at sport. Following initial employment in a bottle department, and subsequently as a letter sorter in a Post Office, the Applicant migrated to Australia at the age of 18 under the Big Brother Movement (T11).
7. In Australia the Applicant worked for a few weeks on a farm in Liverpool (NSW) after which he worked on farms at Blighty and Tocumwal (NSW) until he was called up for National Service in 1969. It would seem that this employment was without incident; with the Applicant involving himself in football and social activities (T11).
8. Army records indicate that the Applicant commenced his National Service Training on 9 July 1979 at 1 Recruit Training Battalion, Kapooka, NSW, where he successfully completed his training (without recorded incidents). The Applicant was posted to 2 RAR Townsville on completion of his recruit training. An entry in the Applicant's record of service indicates a unit posting of 2RAR dated 16 September 1969 (T4, p7).
9. The Applicant is recorded as having been medically examined by doctors acting for the Department of Labour and National Service on 16 May 1969 and was classified Class A (Exhibit A5, p2). This medical classification was confirmed at an army medical examination on 9 July 1969, where the Applicant was classified FE (fit /forward everywhere) (Exhibit A5, p3). A further medical examination (annual) was undertaken on the Applicant by the RMO 2 RAR at Townsville on 19 September 1969 and the Applicant was again confirmed with a medical classification of FE (Exhibit A5, p6). This medical examination was undertaken by Captain Campbell (no relation to the member conducting the hearing). A dental examination was also conducted at 2 RAR on 19 September 1969 (Exhibit A5). The Applicant’s service documents were then forwarded to 2 RAR by 1 RTB on 19 September 1969 (Exhibit A5).
10. On 22 September 1969, the RMO 2 RAR noted that the Applicant went to the Officer’s Mess after hearing music and under the belief that his girlfriend was there (Exhibit A5 p22). This was shortly after his arrival in Townsville. Records indicate that he was arrested for being found in the Officer’s Mess without lawful excuse.
11. Subsequent to this he spent two to three days in the guard house. He was then referred to a consultant psychiatrist, who on 23 September 1969 diagnosed Acute Schizophrenia, having noted:
"Today he is vague, rambling and illogical in thought, and can give only a poor account of his family, his background and his movements in Australia. He appears to be living an entire fantasy, complete with Officer's pips, imaginary fiancee etc. He suffers systematised delusions of a Schizophrenic nature and exhibits Schizophrenic traits of thought and behaviour. His mood is shallow and changeable, and at times inappropriate to the unfortunate situation in which he finds himself (in the Army lock-up)" (T5, p8).
12. The Applicant is recorded as having been transferred to 1 Military Hospital, in Yeronga, Brisbane on 24 September 1969, and then further transferred to the psychiatric unit at the Royal Brisbane Hospital on 25 September 1969, where he was treated with Largactil and seven episodes of electro convulsive therapy. The Applicant was returned to 1 Military Hospital on 20 October 1969 with a confirmed diagnosis of Acute Schizophrenia (Exhibit A5).
13. The Applicant was subject of a final medical board on 22 October 1969, with the Applicant being confirmed medically unfit because of his condition of Acute Schizophrenia, which the medical board considered to be "a personality disorder, which may be brought on by stress or strange conditions" (T13, p24). An interim discharge certificate indicated that the Applicant would be discharged on 30 October 1969 (T13, p33). The Applicant returned to England on 31 October 1969 (T18, p69).
14. The Applicant is recorded as having been subject to review and ongoing treatment at the Psychiatric Department at Westminster Hospital from 29 December 1969. In a report dated 25 February 1970, Dr J.S. Lyon concluded:
"I feel that he will need continued Out-patient follow up, and that medication will have to be continued for some years. Relapse into the more acute phase may well occur at some time in the future." (T13, p34).
15. On 15 June 1982, Dr D.M.H. Jones, a Consultant Psychiatrist, reported that:
" This man continues to suffer from a schizo-affective illness...
Over recent years he has continued to have psychiatric relapses which necessitate his re-admission to psychiatric hospital...
As mentioned above his prognosis is very uncertain...
The Lithium is in fact interfering with the functioning of his Thyroid..." (T13, p 37).
16. In a letter dated 22 February 2001, Dr R.J. Winney, a Consultant Renal Physician, indicated that the Applicant does have some chronic renal damage and his kidney function must be monitored closely (T13, p40).
17. The Applicant lodged his claim for compensation on 6 April 2001 (T14). This claim was acknowledged on 16 May 2001 by the Department of Veterans' Affairs (T17).
18. On 29 June 2001 the Respondent wrote to the Applicant denying the claim. The Respondent stated that the Applicant had not provided any evidence establishing that the psychiatric condition from which he suffers is in any way related to his period of service in the Australian Defence Force. As such, the Respondent advised that no compensation was payable for either the psychiatric condition or for any physical sequelae arising as a consequence of medication taken for the psychiatric condition (T22).
19. In a letter dated 23 July 2001 the Applicant, in seeking reconsideration of the Determination of 29 June 2001, included a report from Dr C. Sharp (T23), a Consultant Psychiatrist, which in part states:
"Generally when people are floridly unwell, it is not at all difficult to arise at the diagnosis of Schizophrenia since the symptoms are generally so characteristic and, indeed, it is quite possible for people to develop an illness like this very quickly in the space of a few days, particularly when there has been some traumatic incident or stressful precipitant. This is what is meant by the illness being 'brought on by stress or strange conditions'. I have certainly seen other cases in the past where basic army training has been sufficiently stressful to precipitate an illness quite suddenly like this."
20. On 21 September 2001 the Respondent advised the Applicant that the Determination dated 29 June 2001 had been affirmed (T27). The Applicant appealed to this Tribunal on 19 November 2001.
Evidence from the Applicant
21. The Applicant has made many submissions in writing concerning this issue since the application for compensation was submitted in April 2001. Mr Batten has drawn attention to a set of circumstances which occurred some 33 years ago. Further Mr Batten describes the treatment which he received for his condition at that time to include medication and two courses of electro convulsive therapy, each involving seven episodes of treatment, with one occurring at the Royal Brisbane Hospital and one at Westminster Hospital.
22. Mr Batten admits that his recollection of events reflects the passage of time, his courses of electro convulsive therapy and re-reading of available records. Mr Batten admits to having some recall of particular events, but experiences difficulty in recollecting specific details of particular events. Having re-read the various records, Mr Batten states that he has tried to plot out what occurred, and in so doing recognises that documents compiled at the time are more reflective of what happened.
23. Mr Batten has stated often that he enjoyed his recruit training at Kapooka and believes he travelled by train to Townsville to join 2 RAR. He remembers a long journey and voices talking to him shortly after his arrival in Townsville. He remembers hearing music and being arrested and placed in the guard house after walking into the Officers' Mess, but experiences difficulty in detailing actual dates, other than by way of reconstruction.
24. Mr Batten detailed to the Tribunal both orally and in many submissions his pre-service history in England as a boy and his farming activities as a young man in Australia prior to his conscription. These have been stated earlier in this decision. Mr Batten reminded the Tribunal that he had no family and/or friends in Australia at that time, and that following his army discharge he was returned to England on 31 October 1969.
25. In further submissions Mr Batten stated:
"I had to enlist. I had to serve. I had no choice. Knew none of my fellow conscriptees, and although I am recorded as saying I enjoyed every minute, that was male bravado. It was as if I was a square reg in a round hole. Kapooka to me was a culture shock. I just was not able to accept what had happened… (Exhibit A2, p3)
I had never before been ordered to do anything and having to accept things whether I liked it or not caused me much soul searching and anger... (Exhibit A2, p4)
My whole life had been turned upside down. My whole upbringing was put into question. Bit by bit things got on top of me and four days after rookie training, I had cracked, I heard voices and on walking into the Officers' Mess at 2 RAR Townsville, I announced I was an officer, was arrested, put in the guard house and diagnosed with acute schizophrenia". (Exhibit A12, p4)
"I have few memories of Kapooka, thanks to electricity being passed through my brain (ECT). " (Exhibit A11, p5)
Medical Evidence
(a) dr cornwell, consultant psychiatrist
26. In a medical report dated 26 July 1972, (Exhibit A11, p3), Dr Cornwell provided details to the Defence Force Retirement Benefits Fund regarding Mr Batten’s treatment. He stated that at that time Mr Batten was being treated with Modecate injections and Lithium Carbonate tablets (Exhibit A11, attachment 2)
(b) dr leslie, consultant physician
27. In a medical report dated 25 April 2002 (Exhibit A14,) Dr Leslie reported his opinion that:
" Lithium Carbonate has been causal in his diabetes insipidus, renal damage and in turn his Lithium treatment was the result of his Bipolar Disorder".
(c) dr bianchi, treating general practitioner
28. In a medical report dated 17 June 2002 (Exhibit A16), Dr Bianchi stated that the Applicant had been diagnosed with hypothyroidism in 1981 and had been treated with long term Thyroxine. In relation to the Applicant’s service, Dr Bianchi stated that:
"The stress of service training has been one of the main precipitating factors in Mr Batten's schizoaffective disorder and its resultant life-long litany of medical problems and complications of treatment."
(D) dr champion, consultant psychiatrist
29. In a medical report dated 23 October 2002, (Exhibit R2), Dr Champion noted that
"the cause of Schizoaffective Disorder is not known, however some factors can be ruled out as causes. These would include the relatively normal physical stresses of the basic training in the ADF Mr Batten had undergone.”
30. Further, in noting that a strong genetic predisposition has been described for Bipolar Mood Disorder, Dr Champion detailed the following opinions:
"In this case Mr Batten's illness may have been at first present in the prodromal form, however the acute onset of delusional state had developed in advance of Mr Batten being arrested and placed in military prison. I would not regard Mr Batten's period of military training, which he claims to have enjoyed, as a stressor likely to precipitate the first episode of the Schizoaffective Disorder. Even if one were of the view that the training had precipitated the first episode, the continuation of the disorder would not be associated with the initial precipitant.
…
Mr Batten suffers from a constitutionally based mental illness, Schizoaffective Disorder. The precise aetiology is unknown, however the military training that Mr Batten underwent prior to the onset of the illness is in my view coincidental with its onset. It is likely that the condition would have appeared at the same time irrespective of circumstances.
In terms of stressors, although in my view irrelevant in this case, I would note that if one were searching for a stressor, one would have to take into account the fact that Mr Batten had left his country of origin and his family and friends and travelled to Australia to commence a new life on his own prior to the development of his psychosis. Those seeking a "stress" precipitant in this case would have to include those factors as considerable "stressors".
Mr Batten's prognosis must be a little guarded however, he seems to have been able to maintain good remission with long term Lithium Therapy despite the side effects in terms of thyroid and renal problems.
3.1 I do not believe that Mr Batten suffers from an injury that was suffered by accident and arose out of the course of his employment with the Australian Commonwealth in 1969.
3.2 I do not believe that Mr Batten suffers with a disease that is due to the nature of his employment with the Australian Commonwealth in 1969.
3.3 (a) If Mr Batten's military service played any role as a precipitator of the initial Schizoaffective Episode, then that affect would have ceased following the treatment of the first episode. You will note however that in my opinion, given the fact that Mr Batten reports that he had enjoyed his military service, this is unlikely. In my opinion Mr Batten's Schizoaffective Disorder would have been likely to appear at that time irrespective of the circumstances.
(b) I would not regard any theoretical precipitation involved in the military service as being at all permanent."
31. In oral evidence before the Tribunal Dr Champion confirmed his opinion as expressed in his written report of 23 October 2002. In alluding to a report in the Medical Journal of Australia Dr Champion noted that prodromal symptoms of Schizoaffective Disorder were recognised in retrospect as being present for up to 22 months prior to a defined clinical episode. In particular Dr Champion stated that while many of the Applicant's military activities may have been stressful, neither his received training or a lengthy train journey would have triggered off a psychiatric illness, nor would have a period of detention in the guard house altered the already existing psychosis, though no doubt the stress of finding himself in the guard house would have increased symptoms of anxiety experienced by the Applicant.
(E) dr sharp, consultant psychiatrist
32. In a medical report dated 13 January 2003 (Exhibit A17) Dr Sharp having read Dr Champion’s report of 23 October 2002, detailed his opinion as follows:
"Much of Dr Champion's opinion is fairly straight forward and boils down to his view that you did not find the military training itself stressful, and that this can therefore be discounted as a precipitant for the illness.. He places more emphasis on your move from Britain to Australia, and indeed this is well recognised as a major source of stress. However, he also notes that you arrived in Australia in January 1967, and there was then a gap of 2 1/2 years before your illness was diagnosed in September 1969 which makes this rather less likely as a direct and approximate precipitant for the episode.
He is correct in his view that illnesses such as yours often develop insidiously, but I am also able to adhere quite happily to my original comment that it is possible, for people to develop such illnesses very acutely over a period of a few days or a couple of weeks where there has been some major stressful incident or occurrence. It all depends on how stressful the basic training actually was, and Dr Champion seems to have information from various documents, which allow him to state that “Mr Batten had not had any particular problems with his training, and he had in fact enjoyed it". If this is the case then your argument is obviously very much weakened."
Submissions by the Applicant
33. Mr Batten in his many submissions contends that the Acute Schizophrenic Episode experienced by him while serving in the Army in September 1969 arose as a consequence of him experiencing stress as a consequence of his conscription, his recruit training at Kapooka, a long train journey to Townsville to join 2 RAR as an infantry soldier destined for service in Vietnam and the consequences of his arrest and detention in the guard house.
34. Mr Batten submits that there was no family history of Schizoaffective Disorder; that he, himself had no history of mental illness prior to commencement of service in July 1969; that on all occasions up to and including 19 September 1969 he had been classified medically fit for service everywhere (FE) and that the army final medical board on 22 October 1969 considered that his mental illness may have been brought on by stress or strange conditions.
35. Mr Batten further relies upon the opinion of Dr Sharp, a Consultant Psychiatrist, who indicated that an illness like the one the Applicant suffered could develop in the space of a few days as a result of a traumatic incident or a stressful precipitant.
36. Mr Batten also relies upon the opinions of Dr Bianchi, Dr Leslie and Dr Winney in contending that his subsequent conditions of Hypothyroidism and Chronic Renal Damage are a consequence of his treatment with Lithium Carbonate for his Schizoaffective Disorder.
Submissions by the Respondent
37. Counsel for the Respondent contended that pursuant to section 124(2) of the 1988 Act, for the Applicant to be successful in his claim, where his injury, loss of damage was suffered after the commencement of the 1930 Act, but before the commencement of the 1971 Act, the Applicant must be entitled to payment of compensation under the 1930 Act.
38. Counsel, while not pressing any arguments in relation to section 16 of the 1930 Act, contends that for the Applicant to be successful in his claim he must satisfy section 10 of the 1930 Act. To do so the Applicant must demonstrate on the balance of probabilities that he suffered from a disease that was due to the nature of his employment.
39. Counsel for the Respondent recognised that the Applicant suffers from a disease, namely a Schizoaffective Disorder. Despite this, it was submitted that the Applicant’s Schizoaffective Disorder is not a personal injury arising out of, or in the course of, his service in the Australian Army. Further, it was submitted that the Schizoaffective Disorder was and is not a disease that is due to the nature of the employment in which he was engaged.
40. Counsel, in so contending, submits that the evidence points at best to a possibility that the Applicant may have been subject to stressful experiences during his army service. Counsel, however, pointed to the Applicant’s statements in which he indicated that he enjoyed his recruit training at Kapooka and that such training did not cause him any difficulty. Further, it was stated that there is no evidence to suggest that the train journey and/or concerns for overseas service in Vietnam with 2 RAR were precipitating events. Similarly, Counsel contended that the psychoses had already commenced prior to his arrest and detention in the guard house, and, in relying upon Dr Champion’s opinion, any anxiety created by his detention in the guard house, did not alter the underlying psychosis.
Consideration and Findings
41. In addressing the issues raised in this matter the Tribunal is mindful that the events in question happened in 1969. The Tribunal further observes that the records relating to the Applicant’s military service placed before the Tribunal are singularly lacking in terms of any detail to do with the Applicant’s ten week period of recruit training at Kapooka commencing on 9 July 1969. Furthermore, there is no detail of the date the Applicant left Kapooka, nor is there any detail of the mode of travel warrant issued for the journey to 2 RAR Townsville, a journey which is in the order of 3000 kilometres.
42. Resolution of this matter is further complicated by the treatment rendered to the Applicant for his condition at the Royal Brisbane Hospital and the Westminster Hospital in 1969 and 1970. This involved 14 episodes of electro convulsive therapy. This has undoubtedly created difficulties for the Applicant in remembering a detailed chronology of events, happenings, feelings and outcomes as to what happened in 1969 during his military service.
43. In considering the evidence which is before the Tribunal, the Tribunal makes the following findings of fact:
(a)there is no evidence to suggest that the Applicant suffered from a mental illness or a personality disorder prior to commencement of his National Service Training in the Army on 9 July 1969;
(b)there is no evidence to suggest that the Applicant had difficulties with his ten week period of recruit training at Kapooka. In fact, there are statements by the Applicant to the effect that he enjoyed and prospered during this period of training: “I was a model soldier, who enjoyed army life” (T18, p68); “The patient stated to me that he had no particular worries associated with his army training, in fact that he had enjoyed every minute of the time”. (T11, p16) There are later statements of the Applicant, detailed at paragraph 24 of this decision which suggest that the Applicant’s attitude to service, and his experiences as detailed above were not necessarily the correct and/or total story, but this is again further complicated by such a statement as “I have few memories of Kapooka thanks to electricity passing through my brain (ECT)" (Exhibit A11, p5);
(c)there is evidence which places the Applicant at 2 RAR Townsville on 19 September 1969, as the Applicant was recorded as being examined by the Regimental Medical Officer and his medical classification was confirmed as FE (Forward everywhere) (Exhibit A5, p6). A dental examination was also conducted at 2 RAR Townsville on that day (Exhibit A5). The Tribunal also notes that the Applicant’s service documents were forwarded by 1 RTB on 19 September 1969, and these included the dental card, which indicates a dental examination at Townsville on 19 September 1969 (Exhibit A5);
(d)there is no evidence to suggest that the Applicant was other than medically fit from the time of enlistment up to and including 19 September 1969 (that being a Friday);
(e)there is evidence that the Applicant was examined on Monday 22 September 1969 by the RMO 2 RAR, with a history being detailed of “hearing music, reckons his girlfriend is up at the Officers’ Mess and has to go there” (Exhibit A5, p22);
(f)there is evidence that the Applicant was arrested some two to three days earlier for being in the Officers’ Mess without lawful reason and detained in the guard house (T5);
(g)there is evidence detailing a diagnosis of Acute Schizophrenia by Dr Richards, a Consultant Psychiatrist, on 23 September 1969, the Applicant’s transfer to Brisbane, the treatment of his Acute Schizophrenia at Royal Brisbane Hospital which included medication with Largactil and electro convulsive therapy, his discharge on medical grounds from the Army and his return to England on 31 October 1969. Subsequent documentation reveals ongoing treatment for his mental illness; a redesignation of the diagnoses by treating psychiatrists to a Schizoaffective Disorder and Hypothyroidism; and chronic renal damage arising from continued medication with Lithium Carbonate.
44. In addressing the statutory framework, the Tribunal notes the following provisions of the 1988 Act:
Section 123A.
A reference in this Part to an injury suffered before the commencing day is a reference to an injury within the meaning of whichever of the 1912 Act, the 1930 Act or the 1971 Act was in force when the injury was suffered, as that Act was then in force.
Section 124
(1) Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.
(1A) Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.
(2) A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:
(a) where the injury, loss or damage was suffered before the commencement of the 1930 Act - under the 1912 Act;
(b) where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act - under the 1930 Act as in force when the injury, loss or damage was suffered; or
…
(10) Where:
(b) a claim for compensation by a person under the 1930 Act, in respect of an injury suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act, was not admissible because of section 16 of the 1930 Act;
that person is not entitled to compensation under this Act in respect of that injury”.
45. The following sections of the 1930 Act are also relevant
Section 4 definition of disease:
“disease” includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development, and also includes the aggravation, acceleration or recurrence of a pre-existing disease.
Section 10
(1) Where--
(a) an employee is suffering from a disease and is thereby incapacitated for work; or
(b) the death of an employee is caused by a disease,
and the disease is due to the nature of the employment in which the employee was engaged by the commonwealth, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with this Act as if the disease were a personal injury by accident arising out of or in the course of his employment.
(2) If the commissioner is satisfied that the employee, at the time of entering the employment of the commonwealth, wilfully and falsely represented himself as not having previously suffered from the disease, compensation shall not be payable.
(3) A claimant for compensation under this section shall, if so required, furnish the Commissioner with such information as to the names and addresses of other employers of the employee as the claimant possesses.
(4) If the disease is of such a nature as is contracted by a gradual process, the Commonwealth shall be entitled to be indemnified by any other employers (if those employers are also liable to pay compensation) who employed the employee prior to the incapacity in the employment to which the disease is due, and all questions as to the right to, and amount of, any such indemnity shall in default of agreement be settled by arbitration or by action in any County Court.
Section 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.
(2) Notice in respect of any injury to which this Act applies shall contain the name and address of the person injured, and a statement in ordinary language of the cause of the injury and the date at which the accident happened.
(3) The notice may be served by sending it by post in a registered letter Notice in respect of any injury to which this Act applies shall contain the properly addressed to the Permanent Head or Chief Officer of the Department or authority in or by which the employee was employed at the time of the accident, or by delivering it at the head office of the Department or authority or to the officer in charge of the work on which the employee was so employed, or in any other prescribed manner.
(4) In the application of this section, in accordance with section ten, and sub-section (2) of section four, of this Act, in relation to a claim in respect of an employee who is suffering from a disease or whose death has been caused by a disease“
46. In addressing the facts as outlined earlier against the statutory framework, the Tribunal concludes that the Applicant does suffer from a Schizoaffective Disorder; that this is a disease pursuant to section 4 of the 1930 Act and that this disease became clinically apparent during the Applicant’s period of National Service Training some two to three days before 22 September 1969. Further, it is satisfied that the disease process continues and that as a consequence of treatment for the disease with Lithium Carbonate the Applicant suffers from Hypothyroidism and Chronic Renal Damage. There is no evidence to suggest a pre-existing mental disease prior to the clinical onset as detailed.
47. In addressing section 16 of the 1930 Act, it is evident that the Applicant did not serve a Notice of Accident or make a Claim for Compensation until 6 April 2001, that is, some 30 plus years after notice should have been served pursuant to section 16(1)(a) of the 1930 Act. The Tribunal notes, however, the provisions contained in section 16(1)(i) and (ii) in relation to the defect or inaccuracy in the notice and/or the failure to make a claim for compensation. The Tribunal finds that:
·in light of the Applicant’s absence from Australia within five weeks of the incident and his continuing absence thereafter; and
·in light of the nature of the Applicant’s continuing mental illness and disability;
the Applicant’s claim for compensation should be considered. The Applicant’s failure to provide earlier notice or to file a claim for compensation should be excused on the grounds that he was absent from Australia shortly after the event and has remained absent to this time. Further, his continuing mental illness since that time provides a reasonable cause for his failure to notify or file a claim.
48. In addressing section 10(1)(a) and (b) of the 1930 Act, the Tribunal observes that, to be successful in his claim, the Applicant must be suffering from a disease, the disease must cause the Applicant to be incapacitated for work, and the disease must be due to the nature of the employment in which the employee was engaged by the Commonwealth. The Tribunal has already concluded that the Applicant suffers from a disease, namely Schizoaffective Disorder and that complications of Hypothyroidism and Chronic Renal Disease have arisen as a consequence of treatment for the primary disease. The Tribunal further concludes that at this time the Applicant’s disease is the cause for his incapacity for work, and further from the date of his severance from the Army there have been significant periods of time whereby the Applicant has been incapacitated for work because of the disease and/or complications arising from treatment.
49. In addressing the phrase “due to the nature of employment in which the employee was engaged,” the Tribunal notes the consideration of the expression given by High Court in Commonwealth v Bourne (1960) 104 CLR 32 where Dixon CJ states (at p 38) that the expression does not cover
“an employment which has no particular tendency to give rise to a disease, contribute or conduce to it or accelerate of and no incident, adjunct, or quality of which involves those employed therein in any particular liability to the contraction of the disease or the aggravation or acceleration of its course”.
50. Similarly the Tribunal observes the following understanding given to the same expression by other judges in the same case, namely;
“… such relationship is not established by showing that a disease from which a particular individual is found to be suffering has been aggravated or accelerated by the duties which he has been required to perform … (nor) by proof that the work of a particular individual has been attended by worry and anxiety, which, in turn, has aggravated or accelerated the progress of a particular disease” (per Taylor J).
…
“the disease is due to the nature of the employment in which the employee was engaged by the Commonwealth" … (typically) what are commonly called industrial diseases or occupational diseases” (per Windeyer J).
…
“… the appropriate enquiry is concerned with the nature of the employment and its relationship with the disease which brought about death” (per Menzies J).
51. In Bourne's case which involved the death of a Department of Taxation Employee, while on vacation, from coronary sclerosis and myocardial degeneration. The Country Court Judge found that worry, tension and distress caused to the deceased by his work resulted in the acceleration of the heart disease. The High Court allowed the Appeal. In doing so, it concluded that while assuming there was evidence to support such a finding (that is, the issue of acceleration of a preexisting disease), this was insufficient to bring the case within section 10 as it had not been shown that arterial sclerosis or myocardial degeneration, or the aggravation or acceleration of an existing condition, was a characteristic or distinctive feature of employment as a Taxation Investigating Officer.
52. In Commonwealth v Thompson (1960) 104 CLR 48, Menzies J in another coronary disease matter concluded:
“… even if the evidence did establish that the responsibilities of the offices which (the deceased) occupied in the Taxation Department did aggravate or accelerate the coronary disease from which (the deceased) was already suffering, that disease which eventually caused his death was not due to the nature of his employment”.
53. Arising from these two cases, it is evident to the Tribunal that effect must be given to the words “to the nature of”, and further that it is evident that their meaning is restricted to diseases which are incidental to a class of employment, and are not concerned directly with diseases arising out of a particular employment.
In Commonwealth v Rutledge (1964) 111 CLR 1 Mrs Rutledge was suffering from a mental disorder described as latent paranoia. It was claimed that because of the nature of the employment in which she was engaged (special investigation) her preexisting condition was aggravated and an incapacitating psychotic disorder resulted. In this case, Menzies J (at p11) stated that the question to be considered is whether the nature of the Respondent’s employment with the appellant was such as to expose a latent paranoia to a special risk of being turned into an active psychotic person. The Tribunal notes that the High Court was satisfied that Mrs Rutledge was suffering from a disease due to the nature of her employment within section 10(1).
54. The Tribunal, in noting the interpretation given to the word disease in both section 4 and section 10 of the 1930 Act by the High Court in both Bourne and Rutledge, moves next to a consideration of whether the nature of the Applicant’s employment with the Department of Defence was such that a Schizoaffective Disorder resulted. The Tribunal is mindful that in considering this question it is not sufficient to attract section 10 that the applicant’s employment bought about the change that occurred. To be sufficient, duties and activities of the Applicant’s army service, being the Applicant’s employment at the time, had in its nature to have been something that would cause the Schizoaffective Disorder (per Menzies J in Commonwealth v Rutledge at 11).
55. On this point, the Tribunal notes that the Applicant’s disease clinical onset occurred some two to three days before 22 September 1969, at a time when he was hearing voices. It also notes that there is no evidence of unsatisfactory behaviour or performance by the Applicant in his duties in the service up to the time, nor is there any evidence of the Applicant suffering a pre-existing mental disease up to that time. As a result, the Tribunal is left with an absence of any particulars about the nature of his employment which would point to the Applicant’s Schizoaffective Disorder being caused by the nature of his employment.
56. In so stating the Tribunal has considered the possibility as pointed to by Dr Sharpe that the stressor associated with recruit training may have precipitated the disease. Unfortunately on the evidence before the Tribunal, there is little to support the contention of the Applicant experiencing a stressor particularly related to recruit training. Indeed the Tribunal observes that there is much evidence to suggest that the Applicant enjoyed his recruit training. Similarly the circumstances of his travel to Townsville from Kapooka and the nature of his detention for two to three days after the clinical onset of his disease were considered by the Tribunal but in the face of an absence of any detail, the Tribunal was again left with non sustainable possibilities. There was no evidence of any aggravation or acceleration in the Applicant’s mental status or the appearance of a separate mental disorder due to his detention in the guard house for two to three days. The Tribunal also considered the oral evidence of Dr Champion in this regard, and in relation to the cause, course and nature of Schizoaffective Disorder.
57. The Tribunal, in noting the opinion of the final medical board, which described the condition as a personality defect/ disorder which may be possibly brought on or aggravated by the stress of service (T13, p27), concludes that the opinion that schizophrenia was a personality disorder is incorrect. The issue of service stress has been considered by the Tribunal in the previous paragraph.
58. In summary the Tribunal has been impressed with the endeavour of the Applicant in pursuing his claim for compensation. The Tribunal acknowledges the difficulties that have confronted the Applicant, which have made his task more onerous. The Tribunal observes the particular difficulties in this matter, namely the time delay between event and claim, the absence of detailed documentation in relation to particular aspects of the Applicant’s service and the Applicant’s difficulty in being able to remember detail of the particular events, due to both time and memory erosion because of treatment.
59. Upon consideration, however, the Tribunal, having examined all the evidence, concludes that on the balance of probabilities there is insufficient evidence for the Tribunal to conclude that the Applicant’s Schizoaffective Disorder disease was due to the nature of his employment. Accordingly the Applicant’s claim for compensation is unsuccessful.
determination
60. The Tribunal determines that the decision under review be affirmed.
I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J. Campbell, Member:
Signed: .......................................................................................
AssociateDate of Hearing 17 February 2003
Date of Decision 28 April 2003
Applicant Self-representedCounsel for the Respondent Mr Johnson
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