Buchanan and Military Rehabilitation Commission

[2006] AATA 1028

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 1028

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2006/98

VETERANS' APPEALS  DIVISION		)
Re		GARY IAN BUCHANAN

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

INTERLOCUTORY DECISION

Tribunal The Hon R J Groom (Deputy President)

Date30 November 2006

PlaceHobart

Decision An extension of time to make an application to the Tribunal for a review of the decision of 6 December 2002 is not granted.

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

Deputy President

CATCHWORDS

Compensation - application for extension of time to lodge an application for review - 60 day time limit - 3 1/2 year delay - length of delay - failure to adequately explain delay - prejudice to respondent - lack of merits in substantive application - extension of time not granted

Administrative Appeals Tribunal Act 1975 s29(7)

Safety Rehabilitation & Compensation Act 1988 s62 &65

Compensation (Australian Government Employees) Act 1971 s54 & 55

Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1994) 58 ALR 305

Lucic v Nolan (1982) 45 ALR 411

Comcare v A'Hearn (1993) 45 FCR 441

Comcare v Russell Edward Smith DG6 of 1996

REASONS FOR INTERLOCUTORY DECISION

30 November 2006   The Hon R J Groom (Deputy President)

1. This is an application to extend time for making an application to this Tribunal pursuant to s29(7) of the Administrative Appeals Tribunal Act 1975.

2.      The application was heard in Launceston on 27 October 2006.  Mr R Fitz, an RSL advocate, appeared for the applicant and Mr D Wilson for the respondent.  The applicant gave oral evidence and several documents were received into evidence. 

Background

3.      The applicant served in the Australian Army as a national serviceman from 22 April 1971 until 20 October 1972. 

4.      He alleges that he suffered a back injury in 1971, now some 35 years ago, when he fell when on an army exercise in Queensland. 

5.      The applicant lodged two claims for compensation on 23 April 1996 and 25 August 1998 in respect to his back injury.  On the 17 June 1996 and 20 January 1999 respectively liability for each claim was denied on the basis that there was insufficient evidence to establish that the applicant’s back condition was caused or aggravated by his army service.  By letter dated 25 November 2002, the applicant requested a reconsideration of the two claims.  It should be mentioned that a further claim for compensation for his back injury was lodged on 7 July 2001 but the applicant was advised that it could not be considered as it was essentially the same as the earlier two claims. 

6.      In a reviewable decision dated 6 December 2002 the 1996 and 1999 primary determinations were affirmed on the basis that there was no evidence of a causal connection between the applicant’s back condition and his former army service. 

7.      It is not in dispute that shortly after the date of the reviewable decision the applicant received the written decision and also advice that he could make application to this Tribunal for a review of that decision.  Included in that advice was information indicating that a 60 day time period applied to an application for review. 

8.      Section 65(4) of the Safety Rehabilitation & Compensation Act 1988 extends the time limit from 28 days provided in s29(2) of the Administrative Appeals Tribunal Act 1975 to 60 days.

9.      An application for review of the reviewable decision of 6 December 2002 together with an application for an extension of time in respect of that application for review were lodged by the applicant and filed in the Tribunal’s Hobart registry on 10 July 2006.  The delay in seeking a review in this case is therefore in excess of three and a half years from the date the reviewable determination was made and furnished to the applicant. 

The Issue

10. The issue for determination is whether, taking into account all of the relevant circumstances of this application, the Tribunal should exercise the discretion provided in s29(7) of the Administrative Appeals Tribunal Act 1975 to extend time to make an application.

Consideration of relevant matters

11.     A suitable guide to the exercise of a discretion to extend time can be found in the decision of Wilcox J in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1994) 58 ALR 305 at 310 – 311.

12.     It was acknowledged by Wilcox J in Hunter Valley that such a list of guiding principles is not necessarily exhaustive.    As well, Fitzgerald J said in Lucic v Nolan (1982) 45 ALR 411 at 417:

“Each individual case should be dealt with individually, giving due weight to prior decisions and what they reveal of judicial attitudes.”

13.     An extension of time should not be granted unless the Tribunal is positively satisfied that it is proper to do so.    The prescribed period of 60 days is therefore not to be ignored (see Hunter Valley (supra) p310).

14.     In the Tribunal’s view the following are the principal matters to be considered in this application in deciding whether or not to extend time:

(a)The length of the delay and whether an acceptable explanation has been provided for the delay.

(b)Will an extension of time cause any prejudice to the respondent?

(c)Does the claim have sufficient merit to justify it being reconsidered?

(d)Is it otherwise fair and equitable as between the parties or to other persons who might be affected.

Each of those matters will now be considered taking into account the evidence  before the Tribunal.

The length of delay and whether there is an acceptable explanation

15.     As mentioned above the delay between receipt of the decision and filing the application to extend time was in excess of three and a half years.  This is obviously an extraordinarily long period of time.  An acceptable explanation for a delay is not an essential pre-condition to an application to extend time (see Comcare v A’Hearn (1993) 45 FCR 441 at 444). It is however an important consideration when deciding whether or not to exercise the discretion provided by s29(7).

16.     The only explanation for the long delay provided by the applicant was that at the relevant time he experienced serious financial difficulties, became deeply depressed and travelled to the mainland for an extended period to relieve the pressure on him. 

17.     The applicant said in evidence:

“... I was actually applying for the pension I got into extreme financial difficulties and it was a case of actually losing my house if I hadn’t done anything about it, and I became extremely depressed in the whole deal, you know, in fighting to try and save my house that I actually put everything else on the back burner”.   (Transcript p4)

18.     When asked whether he had any other explanation for the delay he said:

“No, none at all ... that was the truth because I was in a really depressed state” (Transcript p5).

The applicant said he did not receive medical treatment for his depression.  There is no medical evidence before the Tribunal about the applicant’s mental state at the time nor persuasive evidence of his inability to conduct his personal affairs at the time he received the 2002 decision. 

19.     The applicant said that he travelled to the mainland:

“... about a year and a half after that decision ...”  (Transcript p7)

20.     The Tribunal finds that there is no meaningful explanation for the exceptionally long delay in pursuing a review of the decision of 6 December 2002.  The applicant had ample opportunity to lodge his application within time or at least before his departure for the mainland but did not do so.  He plainly failed to seriously pursue his claims for compensation.  Indeed the applicant has shown throughout the history of these claims indifference in meeting stipulated deadlines.  The result is that 35 years have passed since his alleged fall and injury whilst on duty.  It is obviously now extremely difficult for either party to properly present their cases.  It will be extremely difficult if not impossible to locate witnesses and produce other factual and medical evidence essential to the application. 

Prejudice to the respondent

21.     The respondent contends that it would suffer prejudice if time is extended to allow the application to proceed some 35 years after the alleged fall occurred.  The following matters were identified at paragraph 55.2.1 of the respondent’s Statement of Facts and Contentions:

a)Inability to identify, locate or interview witnesses to the alleged fall during which the injury was incurred.

b)Lack of contemporaneous accounts of the alleged incident.

c)Lack of contemporaneous medical records of injury attributed to the incident or of ongoing back problems since then.

d)Inability to investigate the circumstances under which the applicant ceased his pre-enlistment work and any subsequent work history.

e)Inability to have the applicant assessed by an appropriate specialist during the 25 odd years between the alleged injury and the making of a claim for compensation.

f)Inability to determine whether the applicant’s current condition is due to the alleged injury incurred in the course of his employment in the Army

22.     In the statement of Paul Reis of the Military Compensation group within the Department of Veterans’ Affairs dated 24 October 2006 (Exhibit R2) it is stated, in part, as follows:

7.1It appears from his claim forms that Mr Buchanan attributes his back condition to an injury sustained in a fall during an Army exercise in 1971 or 1972,  There are no contemporaneous accounts of the alleged fall available to the respondent.

7.2It is highly unlikely that the respondent will be able to identify, locate or interview witnesses to the alleged fall.  Therefore, it has effectively lost the opportunity to do so.  Mr Buchanan has effectively conceded this:

a)in his claim from dated 23 April 1996 he stated that the name of his supervisor was ‘not known’ and he did not identify any witness to the fall;

b)in his claim form dated 25 August 1998 he left blank the space for the name of his supervisor and did not identify any witness to the fall other than ‘paltoon [sic] cannot get signature’;

c)in his claim form dated 7 July 2001 he stated that:

-   his supervisor at the time was ‘names unknown after time lapse’, and

-   the witnesses to the fall were ‘names unknown after this time laps [sic]

7.3There are no contemporaneous medical records of Mr Buchanan seeking treatment for a back injury attributed to the alleged fall and no mention in the Army medical records of a back injury sustained as a result of a fall during service.

7.4From the contemporaneous Army medical records it appears that Mr Buchanan’s back condition at that time may have been attributable to other factors.  For example, there is reference to a back injury incurred in a motor vehicle accident about 5 years before enlistment.  Given the time that has elapsed, the respondent has effectively lost the opportunity to verify or properly investigate the factors mentioned in the medical records and the circumstances giving rise to the presentation for treatment for lumbar back pain in October 1971.

7.5Mr Buchanan claims that after discharge from the Army he returned to his pre-enlistment employment but left because he could not perform the duties.  He does not say when that occurred but presumably it was in the early 1970s.  Given the lapse of time the respondent has effectively lost the opportunity to verify the circumstances under which Mr Buchanan ceased that employment or to investigate any subsequent work history.

7.6With the exception of the report from Dr Dawson, there are available to the respondent no contemporaneous medical records of any ongoing back problems since discharge from the Army.

7.7The respondent has lost the opportunity to have Mr Buchanan assessed by an appropriate specialist and obtain contemporaneous medical opinion as to  his back condition from time to time since his discharge.

23.     The applicant did not seriously contradict the respondent’s submission that it would suffer significant prejudice if the matter was allowed to proceed.  He  conceded that the delay has caused difficulties.  In his claim for compensation dated 23 April 1996 when asked for the name of his supervisor at the time of the accident he said “not known”.   In a claim document appearing at pages 26 and 27 of Exhibit R1 the applicant confirmed that he could not identify any witnesses to the accident “... after this lapse of time ...”.

24.     After considering all of the evidence and submissions the Tribunal is satisfied that the respondent would suffer serious prejudice if time was extended and the substantive application for compensation for a 1971 injury proceeded. 

Does the applicant’s claim have sufficient merit to justify an extension of time?

25.     It is clear on all of the evidence that there are, to say the very least, significant weaknesses in the applicant’s claim for compensation. 

26.     Understandably the evidence before the Tribunal was insufficient to enable a determination of the ultimate merits of the applicant’s compensation claim.    It is not, of course, necessary for the Tribunal to determine the merits, but to consider only whether the claim has sufficient merit to justify an extension of time (see Comcare v Russell Edward Smith DG6 of 1996 per von Doussa J).

27.     There may be cases where there are such obvious weaknesses in the applicant’s case as to justify a refusal to grant an extension (see Lucic v Nolan (supra) p417).

28.      In this application there appears to be a complete absence of supporting evidence linking the applicant’s back condition to his service in the Army.

29.     The applicant’s service medical records refer to a back injury sustained prior to enlistment but surprisingly make no reference to the fall in 1971.

30.     There is even uncertainty as to the date when the fall occurred.  The claim of 23 April 1996 states the fall occurred “... approx 9/10/71 ...”.  The second claim of 25 August 1998 was for a “... lower back injury sustained on the 27^th October 1971”.  In the third claim dated 7 July 2001 there is a reference to a “back injury sustained in 1972”.

31.     It is of significance that in a service medical report dated 3 October 1971 (page 2 of Exhibit R1), which is prior to all of the dates referred to in paragraph 31 above, the following is stated:

“3.10.71  Spinal injury five yrs ago now c/o pain in lumbar region on carrying wt or on extension.  For x-ray lumbar spine please”.

32.     In a further medical report of 27 October 1971 there is again a reference to “spinal injury five years ago”.

33.     There are no statements from witnesses to the accident.  The names of witnesses, and even the applicant’s supervisor at the time, remain unknown.

34.     In a medical report by Dr Philip Dawson, a general practitioner from George Town in Tasmania, dated 20 May 2002, the following is stated:

“I have today examined Gary Ian Buchanan and found him to have chronic low backache, limiting all movements and rendering unsuitable for heavy vehicle driving or any other occupation for which he is reasonably fitted considering his education and training.  He relates this backache to an injury on army manouvres in 1969”.

That suggested date of the injury is quite different from the dates mentioned in paragraph 31 above.

35.     It is noted that in his report Dr Dawson did not express his own expert opinion as to the cause of the chronic low back pain but merely reiterated the applicant’s view as to the cause.

36.     The Tribunal is satisfied that the applicant has had chronic lower back pain for a considerable period of time.  The service medical records on 3 October 1971 record a diagnosis of “low back pain” and notes a “spinal injury five years ago”.  In a medical examination record of 28 March 1972 (page 4 of Exhibit R1) it is stated:

“MCA five years ago.  Since then has episodes of pain severe enough to limit his physical capacity”.

It later refers to a diagnosis of “chronic back condition”.

37.     The applicant in evidence, and Mr Fitz in his submissions, relied heavily on the contention that Mr Buchanan was fit when he enlisted in the army but prior to discharge was examined by medical officers and assessed as having a 10% incapacity as a result of a “chronic back condition” (see R1 page 4).  The point was made by Mr Fitz that although the applicant had been involved in a car accident he was “fit for active service and inducted into the army”.  The difficulty is that because of the lapse of time and as a proper written compensation claim was not lodged at the time of the alleged fall in 1971, there are now no records available indicating the applicant’s actual physical condition, including the state of his lower back at the time of enlistment.  On the other hand the medical records referred to above do suggest a link between his back injury and the motor vehicle accident five years earlier.  Indeed, as indicated above, one medical report expressly refers to a “spinal injury five years ago”. 

38.     The problem the applicant now faces is that there is no supporting evidence linking the fall in or about 1971 to his chronic back condition.  Quite to the contrary there is contemporaneous written evidence indicating that his back problem predated any fall in 1971 or thereabouts.  If the fall did cause his back problem it is surprising that it is not mentioned in the medical records of the time.

39.     This claim is so lacking in supporting evidence that, in reality, the applicant has no reasonable prospect of persuading a competent Tribunal of the existence of a causal link between his back condition and his service in the army.  There are certainly such obvious weaknesses in the applicant’s claims as to justify a refusal to extend time.

Is it otherwise fair and equitable as between the parties and to any other persons affected including the public to grant an extension of time

40.     The only matter raised by the respondent was prejudice to the public “in terms of the cost of investigating claims relating to events that happened a long time ago and the delay in finalising those claims”.  There is merit in this submission particularly in respect to an injury which is alleged to have occurred in 1971 and which so lacks supporting evidence.

Conclusion

41.     After considering all of the material before it, and particularly in view of the extraordinarily long delay and the obvious weaknesses in the applicant’s compensation claims, the Tribunal concludes that in all of the circumstances of this application it would not be appropriate to exercise the discretion to grant an extension of time.

42.     It should be mentioned that the respondent also contended at the hearing and in its Statement of Facts and Contentions that the applicant had not complied with sections 53 and 54 of the Compensation (Australian Government Employees) Act 1971.  It was submitted that no compensation was payable under the 1971 Act and therefore no compensation is payable under the Safety Rehabilitation and Compensation Act 1988.   This arises from the application of the transitional provisions in the 1988 Act to the circumstances of this current matter.  However, in light of the conclusions reached on the merits of the application the Tribunal finds that it is unnecessary to further consider those contentions.

Decision

43.     An extension of time to make an application to the Tribunal for a review of the decision of 6 December 2002 is not granted.

I certify that the preceding 43 preceding paragraphs are a true copy of the reasons for the decision herein of  The Hon R J Groom (Deputy President)

Signed:  R Hunt (Administrative Assistant)

Date of Interlocutory Hearing         27 October 2006
Date of Decision  30 November 2006
Representative for the Applicant    Mr R Fitz, RSL Advocate
Counsel for the Respondent          Mr D Wilson
Solicitor for the Respondent         Australian Government Solicitor