Belcher and Comcare - [2002] AATA 771

DECISION AND REASONS FOR DECISION [2002] AATA 771

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/172

GENERAL ADMINISTRATIVE DIVISION          )
           Re      LEONARD GORDON BELCHER
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr K L Beddoe, Senior Member

Date6 September 2002
PlaceBrisbane

Decision      The Tribunal affirms the decision under review.
  ...................(Sgd)....................
  KL Beddoe
  Senior Member
CATCHWORDS
COMPENSATION – late claim – whether notified within relevant six months – prejudice to respondent

Safety Rehabilitation and Compensation Act 1988 s 124
Compensation (Commonwealth Government Employees) Act 1971 ss 53, 54
Veterans' Entitlements Act 1986

Re Willis and Australian Telecommunications Commission (1989) 10 AAR 382

REASONS FOR DECISION

6 September 2002 Mr K L Beddoe, Senior Member

On 24 January 2001 the respondent notified the applicant that it had refused a claim for compensation in respect of viral disease (T58).
On 25 January 2001 the respondent notified the applicant that it had refused a claim for compensation in respect of urticarial skin eruptions (T59).
By letters dated 31 January 2001 the applicant sought reconsideration of both decisions (T60 and T61).
On 1 February 2001 the respondent notified the decision on reconsideration to affirm the decisions notified on 24 January and 25 January 2001.
The primary decisions were made on the basis that while it was accepted that the applicant had suffered the conditions claimed in 1983, while he was serving in the Army, the connection with Army Service could not be established. On reconsideration the delegate also took this view but added reasons to the effect that the claim for compensation had not been made within six months of the applicant being diagnosed with relevant conditions.
There is no dispute that section 124 of the Safety Rehabilitation and Compensation Act 1988 operates to require these claims to be considered on the basis that the applicant is entitled to compensation if he would have been so entitled under the legislation in force in 1983, that is, the Compensation (Commonwealth Government Employees) Act 1971 ("the Act"). If the terms of the Act are satisfied so that compensation would have been payable then compensation will be payable under the later 1988 Act.
The Act imposed time limits on the making of claims for compensation. In general terms section 53 of the Act required that notice of an injury or disease be served on the Commonwealth as soon as practical after the employee became aware of the injury or disease.
Section 54 of the Act has the effect of requiring a claim for compensation to be made within six months of becoming aware of the condition.
These requirements are not absolute and section 54(6) provides:
"(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."

Section 53(1) of the Act requires, as a condition precedent to the operation of the Act, notification of an incident resulting in injury to be served on the Commonwealth as soon as practicable after the occurrence of the injury or as soon as practicable after the employee becomes aware of the injury.
Section 53(4) of the Act reads as follows:
"(4) Where –
(a)a notice purporting to be a notice referred to in a preceding subsection 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."

At the hearing Mr Harding appeared for the applicant and Mr Derrington appeared for the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T-documents and further documents were tendered and marked as exhibits. Oral evidence was given by the applicant. Some of the T-documents are unreadable and have not been relied on.
I make the following findings of fact:
(a)The applicant was born on 8 September 1946 and enlisted in the Australian Army on 27 June 1966 being discharged on 1 July 1986.
(b)The medical examination on enlistment disclosed a skin condition which it was said was also suffered by the applicant's brother who was also in the Army (T6). The applicant was reviewed by a Lt Colonel Fleming who expressed the opinion that the condition he diagnosed as vitilligo (sic) would not be a disability in service and the applicant was F.E. (T8).
(c)Document T21 is a medical board examination record dated 17 February 1981. The report noted obesity, abnormal ears, abnormal feet (intermittent pain and swelling L ankle) and abnormal skin (sun-sensitive pale skin).
(d)Document T23 is another medical board examination report dated 28 September 1981 which noted, inter alia, a continuing problem with the left ankle, no abnormality regarding the applicant's skin and minor degenerative changes in the cervical spine.
(e)The applicant underwent a further medical board examination on 6 September 1983 (T27). Obesity and left ankle were noted as continuing conditions.
(f)The applicant was admitted to a military hospital in November 1983 with a rash, fever, dizziness and headaches (T4). A raised papular rash was initially diagnosed with stiffness of small joints and wrists. The rash was diagnosed by Dr Levy (physician) as urticarial eruption with irritating cough, slight fever and malaise, and arthralgia and left knee effusion. Apparently the condition was thought to be symptomatic of a viral illness (T4 and T41).
(g)An X-Ray examination on 17 November 1983 revealed early degenerative changes in both knee joints but no other abnormality was seen (T4).
(h)Document T51 is a medical questionnaire completed by the applicant in May 1986. The applicant noted his hospitalisation as in (f) above, his chronic left ankle strain which was accepted in 1978 for a 10% disability pension by the Repatriation Commission, a claim for right Pteryguim and a disallowed claim for left hip and left knee conditions and arthralgia associated with viral disease.
(i)Following discharge from the Army the applicant worked as a security patrolman for Wormald Security from 1986 to 1992 (Exhibit 2).
(j)In 1993 the applicant had an accident in the course of his then employment injuring his right knee for which he claimed and was awarded compensation.
(k)In 1995 the applicant applied to the Department of Social Security for a disability support pension.
(l)The applicant made two statements of evidence (Exhibits A and B), which are inconsistent with each other and with documents completed or signed by the applicant during his Army Service and the review form completed for Centrelink in September 1999, where the applicant asserted that his conditions had previously been advised to Centrelink (Exhibit 2).
(m)The applicant attributes the claimed conditions to a viral disease arising out of:
"(an) exercise with my unit at a place called Wilcannia in Western NSW near Broken Hill. My unit was camped on the Murray River and we were camped there for 7 or 8 weeks. About 2 weeks after our return to our base in Randwick (Sydney) I became ill…"

As a consequence the applicant was eventually admitted to 2 Military Hospital on 16 November 1983. I have assumed the applicant was referring to the Darling River; the major river in the vicinity of Wilcannia. And,
(n)The material before me does not include a copy of any formal or informal notification to the Commonwealth that the applicant has suffered an injury in terms of the Act but the claim for compensation dated 27 November 2000 exhibits copies of contemporaneous Army medical records referring to the applicant and relating to his admission to 2 Military Hospital on 16 November 1983.

The Medical Evidence

The applicant was examined by Dr Myers, physician, in May 1994 at the request of the Department of Veterans' Affairs. A copy of Dr Myers' report is at document T54. Dr Myers was asked to assess the applicant's multiple joint pains. Dr Myers found a moderate degree of polyarthralgia with no apparent cause. He thought it was unrelated to polyarthritis suffered in 1983 and of viral origin. He found no definite evidence of an active connective tissue disease as had been the case in 1983.
In 1995 the applicant sought advice from Dr Edwards, general practitioner, for a medical opinion relating to illness and injury sustained by the applicant during his Army service from 7 December 1972 to 1 July 1986. (Those dates indicate that the applicant was concerned about his period of eligible service in terms of the Veterans' Entitlements Act 1986). It seems that Dr Edwards was supplied with copies of documents including service records and also relied on his own clinical notes. The claimed conditions are not reported on by Dr Edwards specifically but he does report "multiple joint pains" which he relates back to viral polyarthritis suffered by the applicant in 1983 and for which the applicant was hospitalised in November 1983. Dr Edwards' notes follow up by Dr Myers in December 1994 where he concluded that the applicant "had suffered a viral arthropathy in 1983 and that SLE which was considered was unlikely".
Dr Edwards said, in his report, that he considered the applicant was "suffering from a polyarthralgia probably post viral and some mild osteoarthritis particularly of both knees". Dr Edwards discussed possible causes and set out a basis on which it might be asserted that the conditions could said to be service related (T55).
Exhibit 2 includes a treating doctor's report by Dr Millett. The applicant said he saw Dr Myers in 1995 in relation to his claim for a disability support pension from the Department of Social Security. There is no explanation as to why he did not seek the report from Dr Edwards. Dr Millett describes three conditions:
(a)Osteoarthritis R & L Knee with date of onset said to be "5 years";
(b)Polyarthralgia (multiple joint pains) with date of onset "6 years"; and
(c)Chronic lateral (ligament? – indecipherable on exhibit) strain L ankle with pain in ankle and no date of onset shown.

(The applicant disagrees with Dr Millet's report as to the dates of onset). Dr Millet noted that the applicant had not worked for eight years, that the applicant had been his patient since 1986 and made it clear that the applicant has difficulty with physical activity.
The Applicant's Submissions

The applicant was ignorant as to the process by which he could pursue a claim for compensation. He didn't understand the nature of the claimed conditions. He failed to differentiate the Department of Veterans' Affairs and his employer the Department of Defence.
For the purposes of section 54(6) there is a discrete period of six months which must be considered (Re Willis and Australian Telecommunications Commission (1989) 10 AAR 382). The applicant's failure to make a timely claim was due to mistakes on his part as to the conditions and as to the process and as such he had reasonable cause. In any event the medical records held by the Commonwealth were sufficient notice to the Commonwealth. There is no evidence of prejudice to the Commonwealth.
The Respondent's Submissions
The applicant must be taken to be aware of the compensation legislation because he made compensation claims in relation to his left ankle prior to discharge and reactivated that claim in 1994.
No notification of the injury has been made so that the claim cannot succeed. If it is accepted that the claim for compensation is sufficient notification for the purposes of the Act then it is apparent from the time delay involved that the Commonwealth will be prejudiced by the seventeen years delay.
If the Tribunal is satisfied that the applicant was not aware of his right to make a claim then that ignorance will be justification for the Tribunal to deal with the claim. Subsequent events can be used to fix the relevant six months period.
The applicant had become aware of his medical condition in 1994. The report of Dr Myers dated 6 June 1994 (T54) following an examination of the Department of Veterans' Affairs reported that the connective tissue disease was diagnosed. Dr Edwards, in his report dated 18 March 1995 (T55) also refers to the multiple joint pains and possible causes.
Consideration
I doubt that it is correct that the mere fact of the Commonwealth holding medical records in relation to an employee is sufficient to constitute a notice in writing, of an injury served on the Commonwealth for the purposes of section 54 of the Act. If the employee submitted the medical records for the stated purpose of making a claim for compensation then that may well be sufficient notification.
In this case the applicant did not make any relevant notification of injury (as defined) until he made the claim for compensation. That written claim dated 27 November 2000 was made on the prescribed form for making a claim under section 54 of the Act. It notifies two diseases said to have been first noticed in November 1983 with first medical treatment of 14 November 1983. That is, in my view, an informal notification for the purposes of section 53 of the Act.
It is also the claim for compensation. I can see no reason why the notification cannot be contemporaneous with the claim for compensation.
The applicant's explanation for his delay in making the claim is at paragraph 17 of the Exhibit B which reads as follows:
"17. At that time, my belief was that the Armed Services looked after all my medical ?? and, unless I had a distinct injury or a disease which quite obviously was contracted because of my service, that I would have no claim against the Army for any action."

It seems to me a reasonable inference to be drawn from this statement is that rather than being ignorant of rights or mistaken as to his circumstances the applicant decided that he did not have a basis for making a compensation claim. This inference is supported by the fact of claims for compensation in relation to his left ankle and the fact of claims made on the Repatriation Commission under the Veterans' Entitlements Act 1986.
This is not a case of mistake or ignorance but rather an acknowledgment over many years that the condition now claimed was not caused by Army service albeit that it may have been exacerbated from time to time by that service.
The applicant did not make a mistake, nor was he ignorant but chose not to claim compensation in 1983 because he was uncertain as to the causative link with his employment. In 1994 he chose not to make a claim because he preferred to make a claim under the Veterans' Entitlements Act 1986.
The relevant six months could be the six months after discharge from the Army and could also be a period of six months after he saw Dr Myers in 1994 or six months after he saw Dr Edwards in 1995.
The respondent takes the view that it is prejudiced by the considerable delay between recognition of the condition in 1983 and the claim for compensation. That claim was made at T62 and there is nothing before me to contradict an inference that a delay of seventeen years or five years from recognition of the condition to the date of notification and claim for compensation is likely to result in prejudice to the respondent. If it was accepted that the Commonwealth was on notice from the date of discharge then it is clearly prejudiced by the delay in making the claim.
In my view the respondent was correct to refuse the claim. The decision will be affirmed.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe, Senior Member
Signed:         Sarah Oliver
  Associate
Date of Hearing  16 November 2001
Date of Decision  6 September 2002
For the Applicant  Mr Harding
For the Respondent                 Mr Derrington

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Belcher and Comcare [2002] AATA 771

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