Dominic Burke and Comcare
[2013] AATA 619
[2013] AATA 619
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/0344
Re
Dominic Burke
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President P E Hack SC
Date 30 August 2013 Place Brisbane The decision under review is affirmed.
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Deputy President P E Hack SC
CATCHWORDS
COMPENSATION – CLAIMS – Whether notice of injury given to relevant authority as soon as practicable after employee became aware of injury – Whether relevant authority would not be prejudiced if notice treated as sufficient notice – Whether failure to notify result of ignorance, mistake or other reasonable cause – Decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, s 53
REASONS FOR DECISION
Deputy President P E Hack SC
30 August 2013
Introduction
Between 2001 and 2009 the applicant, Mr Dominic Burke, was employed by the Australian Quarantine and Inspection Service (AQIS). In August 2012 Mr Burke lodged a claim for compensation, pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) for a condition he described as depression and anxiety and which he said in the claim form he had first noticed in 2003. His claim was rejected by the respondent, Comcare, on 26 November 2012. That decision was affirmed on reconsideration on 9 January 2013.
Mr Burke’s claim failed because Comcare determined that s 53 of the SRC Act, a provision requiring the giving of timely notice of an injury to it, operated to defeat the claim. Comcare had other reasons for the refusal however they do not presently arise for consideration. That is so because the parties, in consultation with the Tribunal’s conference registrar, have agreed that the issue of s 53 of the SRC Act be decided as a preliminary point. If Comcare’s decision on this issue is correct, the matter is at an end; if it is not, other matters will need to be decided in a subsequent hearing.
The Legislation
By virtue of s 14 of the SRC Act Comcare is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work or impairment. The SRC Act distinguishes between an injury properly so called and a disease. In the case of a disease, an employee is taken to have sustained an injury, being a disease, on the day when the employee first sought medical treatment for the disease or when the disease first resulted in incapacity for work or impairment of the employee.[1] Given that Mr Burke first sought medical treatment for his condition in August 2003 it is the definition of injury in the SRC Act at that time that is relevant.
[1]See s 7(4) SRC Act.
The term “disease” was then defined as meaning:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth …
And “injury” was described, so far as is presently relevant, in this way,
injury means:
(a) a disease suffered by an employee; or
…
but does not include any such disease … suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
Section 53(1) of the SRC Act provides that the Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to Comcare as soon as possible after the employee becomes aware of the injury. The effect of that sub-section can be alleviated by s 53(3) of the SRC Act. It provides,
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.
The Contentions
Comcare submitted that Mr Burke first became aware of the injury in August 2003 when he consulted his general practitioner and that notice in writing of the injury was first given to Comcare in August 2012. That delay of nine years meant that notice was not given as soon as practicable and thus the SRC Act does not apply to Mr Burke’s claimed condition.
Mr Burke’s case was that he did not become aware of his injury or, at least, the severity of it, until 2012 when he became aware of the contents of a report by Dr Gary Larder, a consultant psychiatrist and Dr Larder’s opinion in that report that his condition at that time was attributable to his employment with AQIS. There was, in any event, no prejudice to Comcare from the delay and his failure to give notice was the result of ignorance, mistake or other reasonable cause.
The evidence
By and large the facts fall to be determined by reference to some of the hundreds of pages of documents that were put into evidence. Mr Burke relies on two documents that are, in the main, in the nature of submissions by him. The statements contained some assertions of fact however I regard the contemporaneous documents as a much more reliable source than Mr Burke's assertions.
When did Mr Burke become aware?
Mr Burke’s general practitioner’s records[2] show an attendance on 28 August 2003 with complaints of “having confrontation with boss at work”, “poor sleep”, “becoming withdrawn” and “never feels happy”. Unsurprisingly the doctor made a provisional diagnosis of depression and prescribed a mild dose of an anti-depressant medicine. There was a further consultation, with similar complaints, on 17 November 2003. In a report to Comcare of 13 September 2012[3] the general practitioner referred to Mr Burke presenting “in a depressed state” on 28 August 2003 and that Mr Burke was unable to work for one week in August 2003 and two weeks in November 2003. Mr Burke was recorded as “depressed and angry about his treatment by his employer” in June 2005 and depressed, a condition he related to work stress, in October 2005.
[2]Exhibit 10.
[3]Exhibit 1, page 251.
In March 2007 Mr Burke was admitted as an inpatient in a Brisbane hospital. The “history of presenting complaint” notes that Mr Burke “has been treated by his GP for depression for about four [years]”.
It may be that, as time passed, Mr Burke’s condition became more severe however the condition was sufficient to warrant attendances on his general practitioner between 2003 and 2005.
It is impossible to conclude other than that Mr Burke became aware of his condition certainly by March 2007 and, more likely, by late 2003. There was nothing in Dr Larder's report that could possibly have conveyed to Mr Burke anything that he did not already know about his depression.
When was notice given?
The first notice given by Mr Burke to Comcare was his claim in August 2012. I do not accept Mr Burke’s claims that notice was given by means of the provision to AQIS of medical certificates or because AQIS employees were said to have been made aware of his hospitalisation in March 2007.
First, notice is required to be given to the “relevant authority”, defined, for the present circumstance, as Comcare, not as the employer. Next, the medical certificates at best gave notice of the existence of an illness sufficient to warrant time off work. They did not point to any relationship between employment and that illness. The same is true of the fact of Mr Burke’s admission to hospital in March 2007. I am prepared to assume, favourably to Mr Burke, that his supervisors were made aware of that admission however there is no evidence that any employee of AQIS was made aware of any causal relationship between the hospital admission and employment with AQIS.
Given that the purpose of the giving of notice is to enable Comcare, with the assistance of the employer, to determine whether a claim should be met[4] such information as was provided prior to August 2012 did not articulate a claim, much less provide information to allow it to be investigated.
[4]See Abraham and Comcare [2006] FCA 1829, (2006) 93 ALD 147 at [18]
Timely notice?
It follows that notice in writing of the injury was not given to Comcare as soon as practicable after Mr Burke became aware of his condition and that accordingly the SRC Act does not apply to that condition unless s 53(3) of the SRC Act operates to relieve Mr Burke of that consequence.
The question of prejudice
What must be found is the absence of prejudice, that is, that Comcare would not, as a result of Mr Burke’s failure to give timely notice, be prejudiced if the notice in August 2012 was treated as sufficient notice. I am, in fact, satisfied that there would be considerable prejudice to Comcare in treating the August 2012 claim as sufficient notice. That prejudice arises in a number of ways.
First, the claim is one which arises from interactions in the workplace between Mr Burke and other employees of AQIS. AQIS witnesses would be required to turn their minds to events now more than nine years old. The enquiries made by Comcare’s solicitor[5] demonstrate that some potentially relevant witnesses cannot be located and that one witness, at least, can no longer recall his interaction with Mr Burke. This is quintessentially the type of case where it is likely that the issue that would arise is whether the claimed condition was the result of reasonable disciplinary action taken against Mr Burke, thus excluding the condition from the definition of injury in the SRC Act. Where all necessary witnesses are not available and where recollections can be shown to have faded there is clear prejudice to Comcare.
[5]Exhibits 3 & 4.
Next, Comcare submits that it has been prejudiced because there is now no way of verifying the accuracy of the diagnosis of the general practitioner in 2003. That doctor’s clinical notes understandably do not demonstrate the process of reasoning that led to the diagnosis of depression and it is fanciful to suppose that the doctor could now reveal anything beyond what is contained in the clinical notes. Comcare has been deprived of the opportunity to undertake a timely investigation into the diagnosis of the claimed condition and factors that may have contributed to it.
Mr Burke, it must be said, has a considerable history of psychiatric treatment and more importantly, there have been numerous events from 2007 that have caused a significant worsening of his condition. In particular, he was involved in altercations with police in 2007 and 2010 that resulted in litigation in which a claim was made for psychiatric injury. Dr Jennifer Lockwood, a consultant psychiatrist who saw Mr Burke in December 2012 for the purposes of providing a medico-legal report for other litigation, said this:
From a diagnostic perspective, I think that prior to the incident in 2007, he had pre-existing conditions of alcohol abuse and either Adjustment Disorder with Anxiety and Depressed Mood or partially treated Major Depressive Episode. Since the 2007 incident, he has had major exacerbation and worsening of all of these symptoms, and he now presents with symptoms of severe Major Depressive Episode, with a differential diagnosis of Adjustment Disorder.
The overlay of other events and conditions, together with the pre-existing condition of alcohol abuse, presents significant problems in investigating the extent, if at all, that matters arising from Mr Burke's workplace contributed to his present condition. Whilst that presents an obvious difficulty for Mr Burke it plainly prejudices the position of Comcare as well.
Dr Lockwood pointed to the lack of psychological support over the past 10 years. Comcare submits, and I accept, that it has been prejudiced by the absence of timely notice because, had it been given that notice, it could have undertaken rehabilitation at a much earlier stage before the “major exacerbation and worsening of all of these symptoms” referred to by Dr Lockwood.
There is thus real prejudice to Comcare.
Ignorance, mistake or other reasonable cause?
Mr Burke's case was not easy to discern. In his written statement he asserted that he had been pressured not to make a claim by threats from his supervisor. Such an assertion sits uneasily with his claim that he was unaware of his rights to claim compensation but it can, in any event, be easily rejected. I find this assertion to be fanciful and inherently incredible. It would not amount in any event to a reasonable cause because it could not reasonably have prevented Mr Burke from making a claim.
Next Mr Burke submitted that his cognitive abilities had been impaired such that he was not capable of making appropriate decisions. There is simply no evidence from which that conclusion could be drawn. On the contrary, it is demonstrated by the material that Mr Burke was able to commence and prosecute proceedings against AQIS for wrongful dismissal, both at first instance and on appeal, to commence and prosecute proceedings against the State of Queensland over interactions with police, and to take action against another employer.
Mr Burke submitted that AQIS employees had, in effect, conspired to prevent him from getting access to documents to pursue his claim. He was unable to explain to me, nor could I comprehend, how an absence of documents could possibly have prevented him from giving timely notice to Comcare of his claim.
Finally, Mr Burke relied upon the fact that he was incorrectly advised to commence a common law claim against AQIS in 2010. Obviously enough, such an action was bound to fail but, on the most favourable view to Mr Burke, it does not provide any reasonable cause for the failure to give notice to Comcare between 2003 and 2010.
I reject Mr Burke's claim that his failure to give notice to Comcare resulted from ignorance, mistake or other reasonable cause.
Conclusion
Mr Burke failed to give notice of his injury to Comcare as soon as possible after he became aware of it. I am affirmatively satisfied that Comcare would be prejudiced by that failure if the notice of August 2012 were to be treated as sufficient notice. I am not satisfied that the failure resulted from ignorance, mistake or other reasonable cause. It follows that Comcare’s reviewable decision of 9 January 2013 was correct and should be affirmed.
I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC ........................................................................
Associate
Dated 30 August 2013
Date(s) of hearing 22 August 2013 Applicant In person Counsel for the Respondent Mr G Del Villar Solicitors for the Respondent Australian Government Solicitor
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