Caskie and Comcare

[2004] AATA 1226

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1226

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2003/270 &
  )          No A2004/17

GENERAL ADMINISTRATIVE DIVISION		)
Re		JOHN ANDERSON CASKIE

Applicant

And   COMCARE

Respondent

DECISION

Tribunal   Mr J.W. Constance, Senior Member
  Dr M.D. Miller, Member

Date  22 November 2004

Place  Canberra

Decision   The Tribunal affirms the reviewable decisions made 4 July 2003 (A2003/270) and 12 December 2003 (A2004/17).

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

CATCHWORDS

COMPENSATION – Claims – section 53 notice provision not complied with by applicant – whether applicant had reasonable cause for not complying – job security and vanity – not a reasonable cause – whether work materially contributed to injury - application dismissed

Safety, Rehabilitation and Compensation Act 1988 (Cth) – s 53

Re Frosch and Comcare (2003) 78 ALD 395

Re Tierney and Reserve Bank of Australia (1988)15 ALD 534 at 535

Re Hanson and Comcare (1996) 41 ALD 639

Banks v Comcare, Federal Court, 22 May 1996, 382/96

REASONS FOR DECISION

24 November 2004             Mr J.W. Constance, Senior Member
  Dr M.D. Miller, Member

1.      Mr Caskie was employed as a Meat Inspector from 1975 until 1990, during which time he suffered a serious hearing loss.  For most of his employment Mr Caskie worked in a noisy environment.  In 1990 he retired on medical grounds unrelated to his loss of hearing.  He did not notify his employer of the hearing loss until he made a claim for compensation for that loss in January 2003.  His reasons for his failure to give notice earlier were that he was concerned that he may lose his job and that he did not want to admit that he was going deaf.  Mr Caskie has also made a claim for permanent impairment.

2.      The Safety, Rehabilitation and Compensation Act 1988 (Cth), under which Mr Caskie is claiming compensation, requires an employee to give written notice of an injury to his or her employer as soon as practicable after the employee becomes aware of the injury. The Act does provide for circumstances when a delay in giving notice can be excused.

3.      Mr Caskie did not notify his employer until more than 20 years after he first became aware of his injury and more than 12 years after he experienced “ongoing and severe deafness”.

4.       We have decided that to accept the making of the claim as being sufficient notice would be prejudicial to the employing authority and that Mr Caskie has not established that the failure to give notice arose from any reasonable cause.  The decisions will be affirmed.

FINDINGS OF FACT

5.      In making findings of fact we have to be satisfied that the existence of those facts is more probable than not. Unless stated  otherwise the findings are based on the evidence of Mr Caskie.

6.      Mr Caskie was born on 12 May 1940.

7.      In January 1975 he commenced employment by ACT Health as a meat inspector at the Canberra Abattoir.  This work required him to work on the slaughter floor from 7.30am to around 2.30 pm.

8.      The slaughter floor was a noisy environment brought about by the operation of a number of items of equipment and the various processes involved in the slaughter of stock.

9.      We accept Mr Caskie’s statement that when he commenced work as an inspector his hearing “was good, no problem”.  Mr Caskie underwent an audiogram in 1975 when he started his new job and was told by the medical officer who performed the test that his hearing was “perfect”.

10.     In 1976 Mr Caskie was promoted to Meat Inspector Grade 2.  He continued to work on the slaughter floor as before, except that his job now involved supervision of others.  During 1976 and 1977 there was additional noise in the workplace caused by building work.

11.     In about 1977 Mr Caskie was promoted to Meat Inspector Grade 4, a position he held until 1982.  In this position he spent only 30-40% of his time on the slaughter floor, but some of the other areas in which he worked were noisy.

12.     Mr Caskie first noticed a change in his hearing “maybe a year or two” after he started work at the abattoir.  By the late 1970’s he noticed ringing in his ears which would cease on his way home from work, but which later would continue during the night.  By about 1980 this ringing was present all the time.  During the period from the late 1970’s until about 1982 Mr Caskie’s wife and children commented to him on a number of occasions that he was ignoring them and Mrs Caskie suggested that he have his ears tested.  Mr Caskie endeavoured to hide the deterioration in his hearing and began to rely in part on lip-reading.  By about 1982 his hearing was such that if he turned his back on a person who was speaking he “had no idea what he was saying”.

13.     Ms Caskie, Mr Caskie’s daughter, gave evidence confirming the difficulties her father experienced with his hearing at home.  She noticed a deterioration in his hearing from around 1983 onwards.  We accept her evidence.

14.     On 24 May 1982 Mr Caskie’s hearing was again tested by his employer, although Mr Caskie has no recollection of this.  The audiometric record of this test is Exhibit A1.  The test was carried out for the 3000, 4000 and 6000 db levels, the range which is affected by excessive noise.  The result is recorded as “suspected loss - nil”.

15.     Comcare called Mr Peter Curry who was able to identify his signature on the audiometric record, although he had no specific recollection of having carried out the test.  In 1982 Mr Curry was a Regional Safety Co-ordinator employed by the Department of Primary Industry and as part of his duties carried out routine testing of employees working in abattoirs.  These tests were carried out as part of the preparation for the amalgamation of the Commonwealth and State meat inspection services.  We accept Mr Curry’s evidence that he was properly trained to carry out audiometric testing and that the test on Mr Caskie would have been properly carried out.  Mr Curry said, and we accept, that if a test indicated hearing loss the employee was required to undergo further testing.

16.     In 1982 the abattoir closed and from then until 1990 Mr Caskie’s work involved a combination of clerical work in a quiet office environment and visits to abattoirs and other food processing plants.  The occasions on which he visited plants reduced from 1986 onwards.

17.     Mr Caskie gave evidence that by 1988 his hearing was “not good”.  He said that by this time he had “great difficulty hearing everything that went on in the room”, that he read lips to catch some phrases and that he used his mother’s hearing aids.  We accept this evidence.

18.     On a number of occasions prior to his retirement in 1990 Mr Caskie told his General Practitioner that he was “a bit deaf” and his doctor would syringe his ears.  We do not have available evidence to make more specific finding as to when those treatments occurred.

19.     In 1990 Mr Caskie retired on medical grounds unrelated to his hearing problems.  At that time he suffered a number of serious health problems but he did not experience any change in his hearing.

20.     Mr Caskie did not suffer any change in his hearing from 1990 until 2001. In 2001 he consulted Dr Dawson who noted “a sudden hearing loss”.  At the time Mr Caskie was suffering an ear infection and he says that once this infection cleared his hearing returned to the same level as it was before the infection.  We accept this evidence.

21.     In 2000 Mr Caskie obtained hearing aids, teletext for his television and an amplifier on his telephone.

22.     In cross-examination Mr Caskie was asked why he did not make any comment to his employer or to his doctor about the state of his hearing in 1982.  He said that he was worried about his job and wanted to “protect it” and also for reasons of vanity.  He also said that his statement in his Claim for Rehabilitation and Compensation (made in 2003) that he suffered “ongoing and severe deafness in 1990” was a “reasonable assessment”.

23.     Dr Chapman, Ear Nose and Throat Surgeon gave evidence on behalf of Mr Caskie.  Dr Chapman first examined Mr Caskie in October 2001.  In February 2004 Dr Chapman was of the opinion, based on examination and an audiogram, that:

“…he has a significant sensori neural hearing loss in the presence of a history of noise exposure and on the balance of probabilities this would have played a significant part in the generations (sic) of his symptoms”.[1]

[1] Report of Dr Chapman, ex. A3

However when cross-examined Dr Chapman said that the audiogram carried out on 25 May 1982 (Exhibit A1) was normal for a person of Mr Caskie’s age and that the results of an audiogram carried out on 19 September 2003 were not typical of noise induced deafness.  He also said that he was “unable to say for sure that any one particular factor played a part [in Mr Caskie’s deafness] to any particular extent”.[2]  The particular factors to which Dr Chapman was referring were exposure to noise, neurological conditions, the use of antibiotics, genetic make-up and a history of infection.  He agreed with the proposition put to him that, on the limited information available, he could not really have confidence that a noisy environment was an operative factor in Mr Caskie’s hearing loss.

[2] Dr Chapman’s oral evidence

24.     Dr Walker, Ear Nose and Throat Specialist, examined Mr Caskie on behalf of Comcare, initially on 19 September 2003.  He confirmed the opinion stated in his report of 9 October 2003[3] that it was “possible” that some part of Mr Caskie’s hearing loss had been occasioned by his work at the Canberra Abattoir.

[3] Ex. R5

25.     Dr Wakefield was also called to give evidence on behalf of Comcare.  He is a Professor of Pathology and Director of Immunopathology.  He examined Mr Caskie on 30 March 2004.  In his report of 21 April 2004[4] he expressed the opinion that:

“[i]n the absence of evidence to indicate evidence of hearing loss prior to the onset of his systemic immune diseases, or the onset of ear infections and the use of medications, it is impossible to ascertain what percentage of his hearing loss was attributable to workplace exposure.”

[4] Ex. R1 p.6

26.     Mr Caskie did not notify his employer of the injury and consequently neither Comcare nor the employer became aware of the injury until Mr Caskie lodged his Claim for Rehabilitation and Compensation on 31 January 2003.(Document T3).  The reviewable decision of 4 July 2003 (Document T13) did not address the issue of the lack of notice.

THE LAW IN RELATION TO THE FAILURE TO GIVE NOTICE OF INJURY UNDER SECTION 53 OF THE ACT

27.     The Tribunal has jurisdiction to consider the effect of a failure to give notice under section 53 of the Act even though the issue was not addressed in the reviewable decision: Re Frosch and Comcare (2003) 78 ALD 395..

28.     Section 53(1) of the Act provides, inter alia:

“This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:

(a)as soon as practicable after the employee becomes aware of the  injury; or

(b)if the employee dies without having become so aware or before it is practicable to serve such a  notice – as soon as practicable after the employee’s death.”

29.     Section 53(3) of the Act provides, inter alia:

“Where:

(a)a notice purporting to be a notice referred to in this section has been given to the relevant authority;

(b)the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and

(c)the relevant authority would not, by reason of this 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 taken to have been given under this section.”

30.     The principles to be taken into account in considering the effect of a failure to give notice in writing are set out in Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534 at 535:

“Although the Act is framed in terms of imposing liability on the Commonwealth and its instrumentalities rather than in terms of its giving to an employee the benefit of compensation, the giving of that benefit may properly be seen as the obverse of the imposition of the liability on the Commonwealth. Consequently the Act should, in our view, be regarded as beneficial legislation. Section 53 is clearly intended to protect the Commonwealth and its instrumentalities from being placed in a situation where they are unable to disprove an employee’s assertion of an injury alleged to have occurred on some specific occasion in the course of the employee’s work or of a disease contracted because of some brief and transient situation. Some such provision is clearly needed to prevent abuse of the Act. However, where an appropriate officer of the Commonwealth or the relevant instrumentality is made aware at an appropriate time of the alleged injury or disease and the circumstances in which it was suffered or contracted, the Commissioner and the Tribunal should, we believe, be slow to hold that a claim for compensation for the incapacity resulting from that injury or disease must fail because s 53 has not been complied with to the letter. That is particularly so where, as in the present case, the employee has told the compensation clerk that he or she wishes to claim compensation and has relied on the compensation clerk telling him or her what needs to be done.”

31.     In this case neither the Department nor Comcare became aware of Mr Caskie’s injury until he made a claim for compensation on 31 January 2003, 12 years after he ceased his employment and almost 25 years after he first noticed a  deterioration in his hearing.  By reason of this delay the employer lost the opportunity to test Mr Caskie’s hearing at the time he was still employed and in contact with workplace noise.  The employer also has lost the opportunity to test noise levels in the areas in which Mr Caskie worked.  In the terms of the decision in Re Tierney, the Department was not made aware at the appropriate time of the alleged injury and the circumstances in which it was suffered.  It is our view that in these circumstances the Department would be prejudiced if the making of the claim was treated as sufficient notice under the Act.

32.     The reasons Mr Caskie gave for not giving notice were a concern as to his job security and his vanity in not wanting to admit that he suffered a  hearing impairment.  Neither of these reasons amount to a “reasonable cause” within the meaning of section 53(3)(c) of the Act.

33.     In Re Hanson and Comcare (1996) 41 ALD 639 at para. 45 the Tribunal found that the applicant had not given the required notice “because he did not want to ‘rock the boat’ or jeopardize his chances of continued employment.” This was held not to be reasonable cause.

34.     In Banks v Comcare, Federal Court, 22 May 1996, 382/96 at para 14 the Federal Court said:

“The expression “reasonable cause” has been held to refer to some act or omission which operated to prevent the giving of notice and one which, in the circumstances prevailing, is consistent with a reasonable standard of conduct of such a nature that  it might be expected to delay the giving of the necessary notice or claim…..”

Mr Caskie’s wish to hide his hearing loss for reasons of vanity cannot be a reasonable cause in accordance with the test laid down by the Federal Court.  This is particularly so taking into account the very long period for which he was aware of his hearing loss and the severity of it.

35.     For the reasons stated above we find that Mr Caskie did not give notice of his injury as soon as practicable after he became aware of it and that none of the exceptions set out in the section apply.  In these circumstances the Act does not apply in relation to the injury suffered by Mr Caskie and Comcare’s decisions will be affirmed.

WAS THE HEARING LOSS CONTRIBUTED TO IN A MATERIAL DEGREE BY MR CASKIE’S EMPLOYMENT?

36.     Even though we have found that the application must fail for want of notice, we wish to record that had it been necessary to make a final decision we would not have been satisfied on the balance of probabilities that Mr Caskie’s hearing loss was contributed to in a material degree by his employment and therefore it does not come within the definition of “disease” in section 4 of the Act.

37.     Taking into account the concessions made by Dr Chapman in cross-examination we accept the evidence of Dr Walker and Dr Wakefield that there is only a possible connection between Mr Caskie’s hearing loss and his employment by the Department.  There was no evidence of the state of Mr Caskie’s hearing in the 3000 to 6000 db range between 1982 and when he ceased his employment nor was there evidence of readings of noise level in Mr Caskie’s workplace.

DECISION

38.     The Tribunal affirms the reviewable decisions made 4 July 2003 (A2003/270) and 12 December 2003 (A2004/17).

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of

Signed:         .....................................................................................
  Associate (Chelsey Bell)

Date/s of Hearing   14 & 15 October 2004
Date of Decision   22 November 2004
Counsel for the Applicant           Ms Theresa Warwick
Solicitor for the Applicant            Slater & Gordon
Counsel for the Respondent       Mr Damien O’Donovan
Solicitor for the Respondent       Australian Government Solicitor