Ditchburn and Comcare
[2003] AATA 450
•20 May 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 450
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/41
GENERAL ADMINISTRATIVE DIVISION ) Re BARRY DITCHBURN Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr R G Kenny, Member Date20 May 2003
PlaceBrisbane
Decision The Tribunal varies the decision under review in that the Tribunal decides that the applicant has complied with the notice requirements under section 53 of the Safety, Rehabilitation and Compensation Act 1988.
The Tribunal further directs that this matter be listed for hearing on the substantive issues on a date to be fixed following preliminary conferencing by a Conference Registrar.
....................(Sgd).....................
R G Kenny
Member
CATCHWORDS
WORKER’S COMPENSATION – injury alleged during military service –– whether notice of injury given as soon as practicable after becoming aware of the injury – meaning of injury
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 53
Comcare v Luck (1999) 29 AAR 403
Re Deveson and Comcare [1999] AATA 80REASONS FOR DECISION
16 May 2003 Mr R G Kenny, Member Background
1. On 17 October 2001, Barry Ditchburn (the applicant) completed a “Claim for Rehabilitation and Compensation” for injuries which he described as “spinal damage due to excessive G force whilst flying”.
2. On 8 February 2002, a delegate with the Military Compensation and Rehabilitation Service determined, in accordance with the terms of the Safety, Rehabilitation and Compensation Act 1988 (the Act), that the claim should be disallowed and, on 22 November 2002, another delegate affirmed the initial decision. On 15 January 2003, the applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal) and the matter is to be determined under the Administrative Appeals Tribunal Act 1975.
Appearances
3. The applicant was represented by Mr J Wall, solicitor. Ms E Ford of counsel appeared on behalf of Comcare (the respondent).
4. The following material was tendered and taken into evidence:
§exhibit 1: a statement, dated 7 April 2003, by the applicant;
§exhibit 2: the T documents (T1-PT25);
§exhibit 3: an affidavit, dated 24 April 2003, by Paul Ontong, Director of Appeals with the Military Compensation and Rehabilitation Service.
Issues and Legislation
5. The issue for determination in this matter is whether or not the notice requirements as set out in section 53 of the Act have been complied with. The provision reads:
“53 (1) 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.
(2) This Act does not apply in relation to the loss of, or damage to, property used by an employee, being a loss or damage in circumstances referred to in section 15, unless notice in writing of the accident that resulted in the loss or damage is given to the relevant authority:
(a) as soon as practicable after the employee becomes aware that the accident had resulted in the loss or damage; 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.
(3) 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 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 taken to have been given under this section.”
Applicant’s Evidence
6. The applicant gave the following evidence.
7. He was born on 2 April 1939 and served in the Royal Australian Air Force from 15 July 1957 until 20 July 1977. In the period from 1973 until 1975, he was involved in photographic work with the Aircraft Research and Development Unit. This required him to operate a hand-held camera from the cockpit of a dual seat Mirage and to film the passage of a bomb dropped from another aircraft which was flying alongside. The camera weighed some 6 kilograms or 14 pounds and was carried on his shoulder. The nature of the procedure was such that there was much twisting of his body, particularly his neck, and exposure to both positive and negative G forces as his aircraft manoeuvred to enable him to film the bomb’s progress. During these flights, he experienced pain in the area of his neck and this would remain with him for a few days.
8. In his affidavit (exhibit 1), he said that he did not seek medical attention for his neck pain during service and that he did not do so until the mid 1980s. He also said that, as he was not experiencing symptoms at the time of his discharge, he did not make reference to the problem in a health statement completed and signed by him at that time, although he also said that he could not specifically recall completing that document. He referred to resettlement seminars that he attended at the time of discharge but stated that he could not recall having been briefed on entitlements under any compensation or repatriation legislation or being advised under what circumstances any claims could be made.. He said that he had been aware of the need to report any injury suffered on service so that a record was retained but that he was not aware that he could make a claim for compensation during service. He also stated that he had not been aware that the effect of the G forces on his neck may have been responsible for the development of his neck problem and that he had learned of this on speaking with a friend in recent years. He said that this person also advised him that a claim for compensation could be made under the Act.
9. In response to questions from Mr Wall, the applicant said that he had felt pain during his flying duties which lasted for a few days thereafter on each occasion; that he was not experiencing pain at the time of his discharge; that the pain developed to a point in the mid 1980s where he felt the need to obtain medical treatment for it; and that he was not aware of any relationship to his flying duties or of his capacity to make a claim for compensation until he met with a friend at a service reunion in August 2001. He agreed that he learned then that compensation was possible in respect of damage caused by the effects of flying-related G forces.
10. In cross examination, the applicant said that he had experienced a lot of pain since his service and that it had gradually increased in intensity until the mid 1980s when he obtained treatment. Initially, he agreed with Ms Ford that he had felt some “niggling” pain in the years immediately after service but then said that he could not really recall what the position was between that time in 1977 and about 1980. He also, initially, agreed that he had always held a suspicion that his neck pain was related to the effects of his flying duties but then he said that it was difficult for him to be sure of that.
11. The applicant agreed that, in 1978, which was shortly after discharge, he had made a claim under repatriation legislation in relation to hearing loss and conceded that there may have been information provided at the resettlement seminars in respect of that legislation but that he could not recall any such information being provided in respect of compensation legislation. The applicant also agreed that he had made a claim for heart condition in the mid 1990s under repatriation legislation. In relation to that condition, he said that it was diagnosed in May or June 1995 and, because he thought there might be some relationship between the condition and the ingestion of insecticides in South Vietnam, he had contacted the Vietnam Veterans’ Counselling Service who advised him to make the claim. He said that, at that time, he was not provided with any information about compensation legislation. He again stated that he became aware of that when he spoke with his friend in 2001 at the reunion. He also agreed with Ms Ford that he was the sort of person who liked to discover the reason behind the development of any health problem that he suffered from.
12. In relation to the responses provided on the health statement completed at the time of discharge, the applicant said that he would have read the questions and noted the references to the Repatriation Act and the Commonwealth Employees Compensation Act but that he did not know what the Acts were or that they were associated with a compensation scheme.
Evidence of Paul Ontong
13. In his affidavit (exhibit 3), Mr Ontong, Director of Appeals with the Military Compensation and Rehabilitation Service, referred to the delay of the applicant in giving notice of his injury and said that this meant that the Commonwealth had not been able to properly investigate the circumstances in which the applicant alleged that his back problems arose. He referred to an absence of supportive service medical records and of medical reports in the period from 1977 until 2001. Further, he said that the Commonwealth had also been prevented from obtaining evidence in respect of other injuries that the applicant may have sustained after his discharge.
Respondent’s Submission
14. Ms Ford submitted that the first notice of the applicant’s accident or injury to the respondent was the claim form lodged in October 2001 and that this was outside of the time-frame contemplated by sub-section 53(1) of the Act. She also submitted that, on the basis of the evidence of Mr Ontong, the respondent was prejudiced by the delay of nearly 30 years between the alleged trauma experienced by the applicant and the making of that claim. However, Ms Ford accepted that, under sub-section 53(3) of the Act, the applicant’s claim could be considered if the delay was due to ignorance, mistake or other reasonable cause.
15. Ms Ford submitted that the information provided to the applicant in the health statement concerning the Repatriation Act and the Commonwealth Employees Compensation Act made him aware at the time of discharge that he had the capacity to make a claim for injury and that, therefore, he was not ignorant of that capacity. In support of that, she referred to the fact of the applicant’s claim for acceptance of his hearing loss in 1978. She also submitted that there was no evidence of mistake in relation to the lateness of the claim.
16. Ms Ford referred to the inconsistent evidence of the applicant in relation to his understanding of a relationship between the flying duties and his neck problem and also in relation to the symptoms he experienced in the period immediately after service. She said that he had initially agreed that he had always had a suspicion that there was an association but then asserted that he had only been made aware of the prospect in August 2001. Also, he said that there had always been some “niggling” pain but then he resiled from that position and said that he could not recall whether he felt pain between 1977 and about 1980.
17. Ms Ford submitted that the applicant was the sort of person who was interested in determining the cause of any health problem that he suffered and referred to his contacting of the Vietnam Veterans’ Counselling Service after he was diagnosed with a heart problem to see if there may have been a relationship between that condition and some aspect of his service in South Vietnam. She submitted that the applicant had always had a suspicion that there was a relationship between his spinal problem and service, that he had known he was able to make a claim, but was only motivated to do so after discussing the matter with his friend at the reunion in 2001 and learning that consideration was being given to the effects of flying-related G forces and spinal damage. She submitted that this did not constitute reasonable cause such as to justify the lateness of the claim lodged by him.
Applicant’s Submission
18. Mr. Wall submitted that there was no prejudice to the respondent in this matter and that it would be within the capacity of the Commonwealth to obtain evidence of the nature of the applicant’s duties and of the effects of G forces on a person performing those duties. He also submitted that the applicant had not been aware of the availability of a compensation scheme although he conceded that he may have been aware of the availability of the claim process under repatriation legislation. This meant that he was ignorant of his rights. Further, he submitted that the applicant had reasonable cause for late lodgement of his claim. In that regard, he submitted that his evidence should be accepted in respect of the absence of symptoms until the 1980s with the severity of these being such that, in the mid 1980s, he sought medical treatment. This meant that he had not been aware of the severity of the problem until many years after his discharge. Also, he submitted that it was not until August 2001 that he was made aware of the capacity to make a claim and that he did so within a short period thereafter. Mr Wall submitted that this meant the applicant met the terms of sub-section 53(1) of the Act or, alternatively, those of sub-section 53(3) of the Act.
Consideration
19. The Act makes provision for compensation to be paid by the Commonwealth in respect of work-related injuries or diseases to various categories of Commonwealth employees, including those who served in the Royal Australian Air Force.
20. In accordance with paragraph 53(1)(a) of the Act, written notice of the applicant’s injury was to have been given by the applicant to the respondent "as soon as practicable" after he became aware of that injury. It is not disputed that the claim lodged by the applicant can also constitute a notice: see Comcare v Luck (1999) 29 AAR 403 at 417. However, that document was lodged in October 2001. In that form, the applicant was required to state when the injury happened or when he first noticed the condition claimed and he responded “1973–1975”.. In his evidence, he said that he felt symptoms at the time of performing his flying duties but there were inconsistencies in his evidence in relation to whether he experienced those symptoms from his discharge until some time in the 1980s. At one stage, he agreed that he had “niggling” pain during that period but later said that he could not recall whether or not there were symptoms there during that time. His evidence was that the condition became quite significant in the mid 1980s. I am satisfied that the applicant became aware that he had the problem for which he subsequently made the present claim in the mid 1980s.
21. Sub-section 53(1) of the Act has, as the relevant time, the time when the applicant became aware of the injury. However, the awareness is not in relation solely to the presence of an injury but to that of an injury which arises out of employment. In Re Deveson and Comcare [1999] AATA 80, the Tribunal noted this distinction and said:
“12. The Tribunal is mindful that in considering whether the applicant has complied with the obligations imposed by s53 of the 1988 Act, s53 of the 1971 Act or s16 of the 1930 Act, in each case the notification obligations relate only to injuries as defined by the relevant legislation. That of course means an injury arising out of or in the course of the person's employment. For example, when "injury" is used in s53 of the 1988 Act, regard must be had to the definition of "injury" in s4 which makes it clear that the injury is one which arises out of or in the course of employment, and similarly with s27(1) of the 1971 Act and s9 of the 1930 Act.
13. Having regard to the above, the Tribunal finds as fact that the first point in time at which the applicant could be said to have become aware, in any meaningful sense, of his injuries, being injuries that arose out of or in the course of his employment, was after he had gathered together all the material relevant to his claim and had confirmed in his own mind that there was a connection between the circumstances of his employment and his medical conditions. On his evidence, this was only a matter of a few weeks prior to the lodging of his claim for compensation on 15 July 1997 which served also as notification for the purposes of the 1988 Act…”
22. On that basis, if the applicant was not aware of an association with service until August 2001, then time began to run, for the purposes of paragraph 53(1)(a) of the Act, from that time. There were some inconsistencies in the applicant’s evidence in relation to whether he had a suspicion about the cause of his back problem prior to August 2001. However, even if there were some suspicion of that association, I am satisfied that this did not fully mature into an awareness of such an association until he attended the reunion in August 2001 and was advised that claims in respect of flying-related G force damage were being considered by the Commonwealth in the compensation context. Thereafter, there was a period of some two months before the claim was lodged and, thereby, notice given. I am satisfied that this was "as soon as practicable" after the applicant became aware of his injury, as that term is explained in Re Deveson. This means that the terms of paragraph 53(1)(a) of the Act are met and the applicant’s claim may be considered under the Act.
23. In any event, I am also satisfied that the delay between the realisation by the applicant that he had a back problem in the mid 1980s and in lodging a claim in 2001 is explainable by reasonable cause under subsection 53(3) of the Act. This is on the basis that, unless and until he was aware of that potential association, it was reasonable for him to make no claim.
Decision
24. The decision of the Tribunal is that the respondent has jurisdiction to entertain the applicant's claim for injury and the decision under review is varied, in relation to the notice requirements, accordingly.
I certify that the preceding 24 paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member
Signed: Sarah Oliver
AssociateDate of Hearing 6 May 2003
Date of Decision 20 May 2003
Solicitor for the Applicant Mr J Wall, Gilshenan and Luton
Counsel for the Respondent Ms E Ford
Solicitor for the Respondent Phillips Fox
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