DONALD BEETSON and MILITARY REHABILITATION AND COMPENSATION COMMISSION
[2005] AATA 438
•16 May 2005
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DECISION AND REASONS FOR DECISION [2005] ATA 438
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/120
GENERAL ADMINISTRATIVE DIVISION ) N2005/480 Re DONALD BEETSON Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen;
Dr P Lynch, MemberDate16 May 2005
PlaceSydney
Decision The decisions under review are affirmed. (Sgd) M D Allen
..............................................
Presiding Member
CATCHWORDS
WORKERS’ COMPENSATION – Osteoarthritis knees and back – whether Applicant’s parachute jumping in the Demonstration Platoon contributed to these conditions – Applicant made no complaint of back or knee pain at that time – application of 1930 Act – whether Applicant gave notice of injury to Respondent as soon as practicable after it happened – Applicant’s ignorance not a reasonable cause for failing to make a claim in time – decisions under review affirmed.
Safety, Rehabilitation and Compensation Act 1988 – s 124, 53
Commonwealth Employees’ Compensation Act 1930 – s 16
The Commonwealth Employees’ Compensation Act 1959 – s 5
Adelaide Stevedoring Co. Ltd v Forst (1940) 64 CLR 538
Comcare v Luck (1999) 29 AAR 403
Commonwealth of Australia v Connors (1989) 86 ALR 247
Telstra Corporation Limited v Roycroft (1997) 47 ALD 671
Secretary of the Department of Defence v Gorton (2000) 98 FCR 497
REASONS FOR DECISION
16 May 2005 Senior Member Allen
Dr Lynch, Member1. The matter before the Tribunal concerns two applications for review. The first relates to a decision by the Respondent to refuse a claim for compensation for the conditions described as “osteoarthritis knees & back”, whereas the second decision under review is the refusal to make a payment for permanent impairment arising out of the said osteoarthritis knees and back.
2. Although the Applicant’s claim was made pursuant to the Safety, Rehabilitation and Compensation Act 1988 (as amended), as it relates to a disease process initiated by activities carried out by the Applicant in the years 1955 to 1958 ss 124(2) of the SRC Act provides that compensation is not payable to the Applicant unless compensation was payable in respect of injury loss or damage under the Commonwealth Employees’ Compensation Act 1930 (as amended), (the 1930 Act). Further, paragraph 124(10)(b) SRC Act specifically provides that where a claim for an injury suffered whilst the 1930 Act was in force was not admissible because of section 16 of that Act, then the person is not entitled under the SRC Act in respect of that injury.
3. The facts in this matter are relatively straightforward. The Applicant enlisted in the Regular Army Supplement in 1955. As a member of the RAS his enlistment was for three years as opposed to a six year enlistment required for the Australian Regular Army.
4. After recruit training the Applicant applied for specialist training as a paratrooper and qualified on 14 June 1957 after a course at Williamstown RAAF base. Initially he was posted to the parachute company of the 4th Battalion of the Royal Australian Regiment but was seconded to the School of Land Air Warfare at Williamstown as a member of the Demonstration Platoon.
5. As a member of the demonstration platoon he was required to make a large number of parachute jumps, the Applicant estimates at least 96, and also demonstrate correct jumping and landing techniques from training towers, one of which was 78 feet high.
6. The Applicant states that jumping jarred every bone in his body. Because of pain in his left knee he began to wear a knee guard but did not seek any treatment for his left knee. On one occasion he landed heavily and injured his left ankle which was treated at the RAAF hospital Williamstown.
7. The Applicant made no claim for an injury to his left ankle at the time. He said that as he was treated at the RAAF hospital Williamstown, he assumed there would have been a record of it. No formal complaint of injury was made as he was aware that his superior officers had witnessed the bad landing and subsequent injury and he had been transported to a service medical facility.
8. At the expiration of his three-year engagement, the Applicant was discharged from the Army at his own request. At his discharge medical board, he complained of a “fractured” left ankle. The medical board report notes “but it now gives no trouble”. No complaint was made of back or knee pain.
9. Following his discharge on 17 October 1958, the Applicant returned to his pre enlistment occupation of shearing. He said that this was the only work he knew and the only work he could get at the time. After five years he had to give shearing away because of pain in his back and knees. He then managed a property for one year but found this work was too arduous. He was then employed first as a bar manager and then as the Secretary Manager of the Brewarrina RSL Club. He then had a series of employments as a Secretary/Manager of the Merriwa RSL Club, as a Publican and as a taxi driver. He gave up taxi driving as sitting in a taxi cab all day did not agree with his back. After short period in partnership with his son in a hotel and then as a proprietor of a corner shop he retired from active work at age 63. Retirement was occasioned by back and knee pain.
10. The first treatment the Applicant sought for back and knee pain was from his general practitioner in Brewarrina in about 1959. That medical practitioner prescribed ligament and the Applicant took analgesics to relieve the pain. Later whilst at Merriwa the Applicant also complained of back and knee pain to his General Practitioner but it was not until 1979 whilst residing in Lismore that the Applicant was referred to a specialist, a Dr Cull.
11. More recently the Applicant has consulted Dr Ashwell, Orthopaedic Surgeon both at the request of his general practitioner in 2001 and at the request of the Respondent in 2003. The Applicant’s solicitor has also referred him to a Dr Black whereas the Respondent has obtained a report from Professor McPhee, Orthopaedic Surgeon.
12. In a report to the Applicant’s then General Practitioner Dr Harvey dated 17 November 1988, Dr Cull took a history of a five-week complaint of back ache and leg pain. He further noted: “He had a problem with his back in 1980 and this settled down with chiropractic treatment…”. No history was taken of backache dating from Army Service. Dr Cull’s report continues:
“The plain X-rays showed mild degenerative changes at both L4-5 and L5-S1, particularly in the facet joints. This is confirmed on the CT scan which shows a very tight canal at L4-5 with marked degenerative arthropathy of the facet joints at this level, particularly on the left. He also has evidence of a disc rupture of extrusion on the right at this level. There are mild degenerative changes at L5-S1 in the facet joints but these don’t seem to be causing any problems with the canal or lateral recesses.”
13. A later report by Dr Cull dated 30 March 1994 states inter alia:
“He gave a history of many years low back pain and in the last month or so… has had pain radiating from the back down both legs…”
Dr Cull opined that the Applicant’s leg pain was due to L4-5 or L5-S1 compression. No comment was made in the report as to the cause of the spinal compression.
14. On 25 January 2001 Dr Ashwell reported to the Applicant’s general practitioner:
“He has a history of osteoarthritis of both knees troubling him for over 5 years and is more marked on the left side…”
Dr Ashwell went on to recommend left total knee replacement.
15. In his later report to the Respondent dated 13 January 2003 Dr Ashwell took a history as follows:
“He states there was no specific injury reported while he was in the Army, however he was employed as a demonstration parachutist. He stated that one day his chute did not open properly and he landed heavily hurting his back. He did not report the injury at the time and continued with his activities. Over the years while he was in the Army, he has suffered numerous minor injuries to his knees from heavy landings while parachuting.”
and opined:
“His diagnosis is osteoarthritis of the lumbosacral spine and both knees. His time in the Army probably caused the onset of these disorders and subsequent symptoms… I did not have any history of other injuries and he denies other problems causing his back or knee symptoms.”
From the above it seems Dr Ashwell obtained no history of pain in the back and knees during the five years the Applicant spent shearing after Army Service.
16. The opinion of Dr Ashwell is in conflict with the opinion of Professor McPhee. Professor McPhee stated in his report of 2 June 2004 that the principal cause of the Applicant’s osteoarthritis was constitutional and that more than 40 years in retrospect it was not possible to determine whether Army Service was relative or not. In cross examination he conceded that on the balance of probabilities the Applicant may have some degeneration attributable to parachute jumping, but that contribution was relatively minor. In evidence in chief he had stated that on the balance of probabilities the major contributing factor to the Applicant’s current condition was genetics.
17. Dr Black, who appears to have no specialist qualifications but is an assessor of permanent impairment for the New South Wales Compensation Scheme, stated in a report dated 22 June 2004 that the repeated jarring of parachute jumping would have caused damage to the Applicant’s spine and both knees, and would have been a substantial contributing factor to the Applicant’s current osteoarthritis of the back and both knees. Where the opinion of Dr Black conflicts with the opinion of Professor McPhee we prefer the opinions of that Medical Practitioner having the relevant specialist qualifications.
18. Dr Ashwell’s opinion failed to take into account that the Applicant experienced pain in his back and knees whilst shearing whereas Professor McPhee did implicate the Applicant’s labouring activities as a causal factor in his osteoarthritis. The concession in cross examination is equivocal, namely that on a balance of probabilities parachute jumping may have made a minor contribution. (Tribunal’s emphasis)
19. Given the evidence of the Applicant that at no time was he incapacitated by back or knee injury and more particularly that he experienced pain while shearing, we are satisfied that the Applicant’s activities whilst a member of the Demonstration Platoon at the School of Land Air Warfare did not contribute to his current osteoarthritis of the back and both knees.
20. Even if we are wrong in our conclusions as to causation, the Respondent has relied upon section 53 of the SRC Act and section 16 of the 1930 Act as bars to the Applicant’s claim.
21. Section 53 of the SRC Act reads inter alia:
“(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;
b) …
(2) …
(3) Where:
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.”
22. Exhibit R2 is a statement by an employee of the Respondent in which he claims that the Respondent is prejudiced by the late claim. In particular the Respondent alleges that it has been unable to investigate the circumstances giving rise to the claim nor when the symptoms commenced or whether there were any other possible causes for the Applicant’s conditions.
23. Delay of itself, particularly a long delay such as in the present matter, creates a presumption that the Respondent will suffer prejudice as a result. That the actual lodgement of the compensation claim itself can be regarded as a “notice” for the purposes of s 53 was determined by the Federal Court in Comcare v Luck (1999) 29 AAR 403.
24. In this matter, the Applicant gave clear unequivocal evidence that he did not lodge a claim for compensation until July 2002 because he did not know that he could. In other words, he was ignorant of his entitlement to do so.
25. As the claim was not made as soon as practical because of ignorance then it is a valid claim for the purposes of s 53 of the SRC Act.
26. Section 16 of the Commonwealth Employees’ Compensation Act 1930 - 1956 at the time of the Applicant’s military service read inter alia:
“(1)The Commissioner shall not admit a claim for compensation under this Act for an injury unless notice of the accident has been served upon him as soon as practicable after it has happened, and before the employee has voluntarily left the employment of the Commonwealth, and unless the claim for compensation has been made -
(a) within six months from the occurrence of the accident; or
(b) in case of death - within six months after advice of the death has been received by the claimant:
Provided always that –
(i) the want of or any defect or inaccuracy in the notice shall not prevent consideration of the claim by the Commissioner if he finds that the Commonwealth is not prejudiced by the want, defect or inaccuracy, or that the want, defect or inaccuracy was occasioned by mistake, absence from Australia or other reasonable cause; and
(ii) the failure to make a claim within the period above specified shall not prevent consideration of the claim by the Commissioner if he finds that the failure was occasioned by mistake, absence from Australia or other reasonable cause.
(2) …
(3)…”
27. It was held in Commonwealth of Australia v Connors (1989) 86 ALR 247 by majority that ignorance of the right to make a claim does not constitute reasonable cause for the purposes of subparagraph 16(1)(a)(ii) of the 1930 Act. Likewise in Telstra Corporation Limited v Roycroft (1997) 77 FCR 358 it was determined that a person who is not aware of a right to claim compensation at all is not mistaken about that right but ignorant of it.
28. Section 16 of the 1930 Act was amended by the Commonwealth Employees’ Compensation Act 1959. Section 5 of that Act added to s16 of the principal Act subsection (4) which read:
“In the application of this section, in accordance with section ten and sub-section (2) of section four, of this Act, in relation to a claim in respect of an employee who is suffering from a disease or whose death has been caused by a disease -
(a) notice of the accident shall be deemed to have been served in accordance with the provisions of sub-section (1) of this section if notice of the contracting of the disease was served on the Commissioner –
(i) in the case of a claim arising out of the death of the employee caused by the disease – as soon as practicable after his death; or
(ii) in any other case - as soon as practicable after the employee first became aware that he was suffering from the disease or, if he died without having become so aware, as soon as practicable after his death;
(b) a claim for compensation shall be deemed to have been made within the period required by sub-section (1) of this section if the claim was made –
(i) in the case of a claim arising out of the death of the employee caused by the disease – within six months after advice of the death was received by the claimant; or
(ii) in any other case – within six months after the employee first became aware that he was suffering from the disease or, if he died without having become so aware, within six months after his death;
(c)…
(d)…”
29. For completeness we would state that we do not see ss 5(2) of the 1959 Act having any application to this matter.
30. Subsection 16(4) requires both the notice of the accident be served “as soon as practicable” after the employee became aware he was suffering from the disease and that the claim for compensation be made within six months of the employee having become so aware.
31. In this matter it is clear that the Applicant knew he was suffering from a degenerative disease of the back by 1994 at the latest. The report by Dr Cull of 30 March 1994 referred to above, notes leg pain being due to L4-5 or L5-S1 compression. Prior to that report Dr Cull had in 1988 noted mild degenerative changes at L4-5 and L5-S1 with marked degenerative arthropathy of the facet joints at L4-5. There was also evidence of a (past) disc rupture.
32. By report dated 25 January 2001 Dr Ashwell noted a “history of osteoarthritis both knees troubling him for over 5 years”.
33. We accept the Applicant’s evidence that he was ignorant of his right to make a claim until 2001 or 2002 when his daughter who was then working for the Department of Veterans Affairs advised him that he may have a claim. As stated above the actual claim (and notice claim) was not made until July 2002.
34. Hill J in Secretary of the Department of Defence v Gorton (2000) 98 FCR 497 at paragraph 62 said:
“It is clear, beyond doubt, that the insertion of subs (4) had the consequence that the whole of s 16 had to be read as applying to the case of disease and that this was to be achieved by the application of s 4(2) of the 1930 Act.”
and continued at paragraph 66:
“On the view I have taken s 16(4) was not intended to ameliorate anything, it was intended to make a time limit applicable to disease claims where it was not before.”
35. Paragraph 16(4)(b)(ii) of the 1930 Act as amended requires that the claim for compensation be made within six months of the employee becoming aware that he or she was suffering from the disease. We have found that the Applicant was so aware by 1994 regarding his back and by 1996 regarding his knees, yet no claim was made until 2002.
36. We are aware that the Applicant’s failure to make a claim was due to his ignorance of his right to do so but as pointed out above, ignorance under the 1930 Act is not a reasonable cause for failing to make a claim within time.
37. Both decisions under review will therefore be affirmed.
I certify that the preceding 37 paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen;
Dr P Lynch, Member
Signed: E.Pope .....................................................................................
AssociateDate of Hearing 20 & 21 April 2005
Date of Decision 16 May 2005
Counsel for the Applicant Ms E. Wood
Solicitor for the Applicant Geoffrey Edwards & Co
Counsel for the Respondent Mr G. Johnson
Solicitor for the Respondent Sparke Helmore
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