Donaldson and Military Rehabilitation and Compensation Commission
[2005] AATA 998
•11 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 998
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1198
GENERAL ADMINISTRATIVE DIVISION ) Re SALLY MARY DONALDSON Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member
Dr I Alexander, Member
Date 11 October 2005
PlaceSydney
Decision
The Tribunal affirms the decision under review.
Ms G Ettinger
Senior Member
CATCHWORDS
Compensation - veteran – obesity- date of onset of obesity – whether disease – implications of 1971 and 1988 compensation legislation – no contribution of the employment - claim also under 1930 Act - 32 years later - decision affirmed.
Commonwealth Employees’ Compensation Act 1930 - 1956 ss 12(1), 16(1)
Compensation (Commonwealth Government Employees) Act 1971 ss 29, 30
Safety, Rehabilitation and Compensation Act 1988 - ss 4, 14, 123A, 124
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
REASONS FOR DECISION
11 October 2005 Ms G Ettinger, Senior Member
Dr I Alexander, Member
1. Ms Sally Donaldson enlisted in the Australian Army on 11 April 1969, and served in Signals in Singapore from 6 February 1971 to 6 December 1972. Her claim is about the fact that she says she gained a substantial amount of weight while in service in Singapore, leading to obesity and related problems. Ms Donaldson attributes those problems to the standard of the food served by the Army in Singapore, which she says was very greasy, and because of the state of the drinking water, causing her to drink Coca Cola in excessive amounts. She claims that she is now addicted to Coca Cola, and blames it for her excessive weight gain and obesity.
2. Ms Donaldson was twenty one years old when she was posted to Singapore, and told us that she weighed eight and a half stone, or approximately 54.5 kgs when she joined the Army. She was discharged from the Army in 1978, weighing 86 kgs and by December 2004, weighed 103.5 kilograms.
3. We had to consider whether Coca Cola can be addictive, when Ms Donaldson’s weight reached obesity, and whether her obesity is compensable pursuant to the relevant workers’ compensation legislation.
4. We were mindful that while riding pillion on a motorcycle in 1974, Ms Donaldson suffered a severe accident which has caused her great pain and difficulties, and resulted in her having one leg shorter than the other. The Respondent did not accept liability as it was held that the accident was not incurred during the course of her work; the AAT affirmed that decision.
5. We accepted that Ms Donaldson has a lot of problems, and that she has not worked since her discharge from the Army in 1978. She made an application for compensation, stating in her claim form at PT4/30 that she first noticed her obesity on 17 May 1971. Her claim was refused on the grounds that she made the claim in 2003, some 32 years after she alleged she had sustained her injury or illness. The Delegate was not satisfied that Ms Donaldson had complied with section 16 of the Commonwealth Employees’ Compensation Act 1930 - 1956 which requires that a claim be made within six months of the Claimant becoming aware of the injury or disease. The Delegate was also satisfied that the lack of notice was not occasioned because of mistake, absence from Australia or other reasonable cause, and that the Commonwealth had been prejudiced by the lack of notice. As to the merits of the claim; the Delegate determined that the evidence did not establish that Ms Donaldson’s obesity condition arose as a result of her employment with the Commonwealth. On appeal the decision was affirmed, and Ms Donaldson appealed to the AAT.
6. We were unable to find in her favour for the Reasons given below, and the decision under review was affirmed.
ISSUES BEFORE THE TRIBUNAL
7.We had to consider:
· when Ms Donaldson’s weight reached obesity;
· whether Coca Cola is addictive as claimed;
· whether Ms Donaldson’s obesity is a disease pursuant to the relevant legislation and whether her claim stands to be determined pursuant to the Commonwealth Employees’ Compensation Act 1930 – 1956, (“the 1930 Act”), the Compensation (Commonwealth Government Employees) Act 1971 (“the 1971 Act”), or the Safety Rehabilitation and Compensation Act 1988 (“the 1988 Act);
· if the 1930 Act is to be applied, whether Ms Donaldson can pass the threshold notice test as required in section 16 of the 1930 Act;
THE LEGISLATIVE CONTEXT
8. The relevant legislation in this matter is either the Commonwealth Employees’ Compensation Act 1930 – 1956, (“the 1930 Act”), or the Compensation (Commonwealth Government Employees) Act 1971 (“the 1971 Act”), or the Safety Rehabilitation and Compensation Act 1988 (“the 1988 Act);
9. We were mindful also that for Ms Donaldson to be able to claim entitlement for compensation, we had to consider the transitional provisions pursuant to sections 123A and 124 of the 1988 Act. The transitional provisions in Pt X of the 1988 Act make provision for the payment of compensation to an employee who has suffered a compensable injury when the 1971 Act, or earlier workers' compensation legislation was in force. In particular, section 124(1) provides in substance that the 1988 Act applies in relation to injuries, loss or damage suffered by an employee before or after 1 December 1988, and section 124(1A) states that the compensation that is payable to a person entitled to compensation under the 1988 Act in respect of an injury suffered before 1 December 1988 is that which would have been payable to that person under the relevant earlier legislation. There are certain restrictions and limitations imposed upon the right to receive compensation in respect of an injury suffered before 1 December 1988.
EVIDENCE BEFORE THE TRIBUNAL
10. We had before us documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, (“the T-documents”) as Exhibit R1 and a number of other documents which will be referred to during the course of these Reasons for Decision.
WHETHER MS DONALDSON IS OBESE, AND IF SO FROM WHAT DATE
11. In considering Ms Donaldson’s weight and obesity, her height is a central issue. She was originally 153 cms tall. However for present purposes, and after her motorcycle accident on 2 October 1974, for which liability was not accepted by the Respondent, and which has left her quite disabled, the Applicant, when measured by Dr Stevenson, was 148 cms tall when she stood with her weight on her left leg, and 152 cms tall when standing on her right leg. Accordingly, for purposes of measuring Body Mass Index (“BMI”), Dr Stevenson took an average and calculated BMI according to a height of 150 cms (Exhibit R5). There was no dispute between the parties about that course of action, and we agreed.
12. We heard evidence and submissions regarding Ms Donaldson’s weight. She told us that she weighed eight and a half stone, or 54.5 kgs on enlistment in the Army on 11 April 1969, and said that she had not noticed her weight gain until she was in Singapore, where she had consulted the Regimental Assistance Post (“RAP”) about it in 1971.
13. Medical records at T4 indicated a concern with weight gain, and at PT4/19, the entry for Ms Donaldson on 17 May 1971 reads “overweight 147 lbs” (67 kgs). Appetite suppression medication was prescribed for her.
14. We had before us the reports of Dr Stevenson (Exhibits R2 and R5), as well as the benefit of his oral evidence. We also had the report of Dr R Suri, Ms Donaldson’s general practitioner dated 13 December 2004, who stated that the Applicant had been a patient at his practice since 7 September 1992. Dr Suri opined that Ms Donaldson’s “obesity in 1978 [at discharge on 27 October 1978, she weighed 86 kgs and had a BMI of 36], and Morbid Obesity since 1993 (or prior) are a direct consequence of having a high caloric intake during her Army Service.”
15. We accepted that we should apply the WHO classification, (Exhibit R4), and noted that Ms Donaldson suffered Obese Class II with a Body Mass Index (“BMI”) of 36 on discharge in October 1978, and that at December 2004, she weighed 103.5 kgs equating to a BMI of 42, classified as Obese Class III or morbid obesity.
16. According to the WHO classification, Ms Donaldson reached Obese Class I by 16 August 1972, when she reached a weight of 70 kgs, (Exhibit R3), or 72 kgs (Dr Stevenson), and a BMI of approximately 32. We were mindful that Ms Donaldson, who represented herself at the Hearing, referred to the SoP No.32 of 2003 concerning Morbid Obesity, and the tests in the SOP. The SoP does not of course apply to her situation.
17. We have reproduced a Table prepared by the Respondent with regard to Ms Donaldson’s weight and her BMI adding to it measurements made by Dr Stevenson (Exhibit R5). As can be seen there is a small and inconsequential difference between the two at some points. The BMI is calculated using a person’s weight in kilograms divided by the square of their height in metres. As Ms Donaldson has a difference in length of her legs due to her motorcycle accident in 1974, her height, averaging the length of her legs has been used. We have agreed that 150 cm would be the correct way of assessing her height for purposes of calculating the BMI.
T documents and Army Medical Records- Weight measurements
Date
Source
Weight and Comments
Conversion (stones)- approx
Conversion (kilograms)- approx
Dr Stevenson’s figures
Dr Stevenson’s BMI
1969/1970
T4, page 19
10 stone
10 stones
63.50 kilograms
63 kgs
28
17 May 1971
T4, page 19
Overweight 147 lbs
10.5 stones
67 kilograms
66
29
16 August 1972
T4, page 20
11 st 2 lbs
11.02 stones
70 kilograms
72
32
29 March 1973
T4, page 20
Weight 12 st
12 stones
76 kilograms
76
34
12 April 1973
T4, page 20
Weight full uniform 166 lbs. Should lose 2 stone. Advised re diet. To cut out Coca Cola
11.86 stones
75 kilograms
75
33
22 October 1973
T4, page 20
Weight (slacks and jumper) 174 lbs
12.43 stones
79 kilograms
78
35
13 November 1973
T4, page 20
Weight (summer service dress) 168 lbs
12 stones
76 kilograms
76
34
2 May 1974
T4, page 20
13 stone
13 stones
83 kilograms
80
36
9 May 1974
T4, page 20
12 stone 8 lbs
12 stones 8 lbs
80 kilograms
82
35
11 April 1975
Medical records, MBER
70 kilograms
11.02 stones
70 kilograms
70
31
16 September 1975
Medical records, MBER
173.5 kilograms
(Say 73.5 kilograms)
Say 11.57 stones
Say 73.5 kilograms
73.5
32
21 February 1975
Medical records, MBER
72 kilograms
11.34 stones
72 kilograms
72
31
August 1978
T24, page 129
86 kilograms
13.54 stones
86 kilograms
86
38
13 December 2004
Report of Dr Suri, GP- served by Applicant
103.5 kilograms (BMI of 42)
16.30 stones
103.5 kilograms
103.5
46
18. We noted from the document Exhibit R4, tendered by the Respondent, which was a report of the South Australian Department of Human Services, that the World Health Organisation has adopted the following cut-off points for adults, based on associations between BMI, chronic disease and mortality.
Classification
BMI
Risk of Co-Morbidities
Underweight
Less than 18,5
Low (but increased risk of other clinical problems
Normal Range
18.5 – 24.9
Average
Pre-Obese (Overweight)
25.0 – 29.9
Increased
Obese Class I
30.0 – 34.9
Moderate
Obese Class II
35.0 – 39.9
Severe
Obese Class III
40.0 +
Very Severe
19. We were able to conclude from the evidence before us that by August 1972, Ms Donaldson had reached obesity according to the WHO classification, that is Obese Class I with a weight of either 70 or 72 kgs, and a BMI of approximately 32. A BMI of over 40, Obese Class III was not recorded until December 2004.
20. We were however interested to see that Ms Donaldson’s weight increased more in the twenty five months between her enlistment and the commencement of her posting in Singapore (approximately 0.5 kgs per month), than during her posting in Singapore (approximately 0.2 kgs per month). Ms Donaldson’s evidence was that she weighed eight and a half stone or 54.5 kgs on enlistment, and the figures provided indicated that by 1969/70 she weighed 63.5 kgs and on 17 May 1971, 67 kgs at the commencement of her posting in Singapore.
21. We were mindful of Dr Stevenson’s evidence that obesity does not become significant or a disease until a BMI of 40 is reached. He indicated that views varied regarding the point at which obesity becomes a disease. He opined that increases in morbidity occur at every level of obesity, and that he would recommend changes to eating patterns and lifestyle to overweight people. He explained that obesity is caused by excess caloric intake over the body’s requirements, and added that there was often a genetic predisposition and lifetime behavioural patterns involved. In Ms Donaldson’s case, we were mindful also of restrictions on movement since her motorcycle accident.
22. We were satisfied that Ms Donaldson is obese, having reached obesity Class I with a BMI of 32 by August 1972. When Ms Donaldson left the Army in 1978, she weighed 86 kgs and had a BMI of 38, which did not classify her as morbidly obese according to the WHO guidelines, and Dr Stevenson’s view that obesity does not become significant or a disease until and unless a BMI of 40 is attained. Ms Donaldson attained morbid obesity, or obesity Class III by December 2004, with a weight of 103.5 kgs and a BMI of 46.
WHETHER COCA COLA IS ADDICTIVE
23. Ms Donaldson claimed that because the food provided to her was very greasy on her posting in Singapore, and because of the easy availability and cheap price of Coca Cola from the vending machines which also stocked 7UP, she commenced drinking Coca Cola, and became addicted. Ms Donaldson said that although the water was allegedly safe to drink, they were advised to boil it, and she did not, resorting instead to Coca Cola. She conceded that at meal times jugs of boiled water were provided, and that tea and coffee (sources of caffeine other than Coca Cola), were provided.
24. Ms Donaldson also gave the poor quality of the food as a reason for gaining weight, although the Respondent submitted that if she did not like the food, one might have expected weight loss.
25. Ms Donaldson said that she knew Coca Cola before her posting and liked it. She also said that she “craves” it and considers it an addiction, developing headache if she cannot get Coca Cola. She said that she currently drinks 6 – 8 cans of Coca Cola a day.
26. Dr G Driver, the Head Defence Nutritionist, Combatant Protection and Nutrition Branch, Aeronautical and Maritime Research Laboratory, DSTO was consulted about Ms Donaldson’s claims. Dr Driver stated that: “Colas are not addictive although one can become habituated to the caffeine content. Even so the caffeine content of colas is usually much lower than caffeine content in standard coffee, and about the same as in tea.” He also pointed out that obesity in humans is generally caused by an excess of energy intake such as sugar over energy expenditure.
27. This evidence was corroborated by Dr P Stevenson, a consultant physician, whose report dated 24 May 2005 was Exhibit R2. In his oral evidence Dr Stevenson discussed habituation to Coca Cola by Ms Donaldson. He opined that unlike with addictive drugs where adverse physical consequences can be experienced if the drugs are withdrawn, a withdrawal of caffeine may cause headache, as described by Ms Donaldson. He opined however, that he would expect that to settle over a matter of days or weeks.
28. We were satisfied from the evidence of Drs Stevenson and Driver that Coca Cola is not addictive, and that any physiological reaction to withdrawal such as headache would settle after a short period, lasting days and at most, weeks. We noted also that if Ms Donaldson was concerned about missing the caffeine content of Coca Cola, she could choose to drink tea or coffee which have a higher caffeine content than Coca Cola.
WHETHER OBESITY IS A DISEASE PURSUANT TO THE RELEVANT LEGISLATION AND WHETHER MS DONALDSON CAN SUCCEED WITH HER CLAIM
29. When Ms Donaldson made her claim on 3 November 2003, she stated that she claimed for obesity which she had first noticed on 17 May 1971 (T4). It was on this basis that the Respondent decided that her claim should be considered pursuant to the 1930 Act, and applying the provisions of section 16 of the 1930 Act, found that Ms Donaldson did not reach the threshold in that she did not provide the requisite notice of her condition in satisfaction of section 16.
30. We noted that the reviewable decision from which Ms Donaldson appealed, also dealt with the merits of the claim, the Respondent finding on the basis of the evidence, that it was not satisfied that the nature of Ms Donaldson’s military service caused, aggravated, accelerated or led to a recurrence of her obesity condition.
31. We have found in the paragraphs above that Ms Donaldson could first be classified as Obese Class I, with a BMI of 32 by 16 August 1972. She claimed that she noticed her obesity in May 1971, but her recorded weight at that time was 66 kgs with a BMI of 29, which would have classified her as overweight and pre-obese pursuant to the WHO guidelines.
32. If the 1930 Act were to apply, then we would have agreed with the findings of the Respondent that Ms Donaldson did not pass the threshold section 16 test because of the notice of injury given some 32 years after the first awareness she had of being overweight.
33. However we decided that the relevant legislation at the time that Ms Donaldson reached obesity, (Ms Donaldson could first be classified as Obese Class I, with a BMI of 32 at 16 August 1972), was the 1971 Act, or when she reached a BMI of 40, first measured as 46 in December 2004, in which case the 1988 Act applied. The date of assent of the 1971 Act was 25 May 1971, and for the 1988 Act, 1 December 1988. As stated above, section 124 of the 1988 Act is relevant to a determination under the 1971 Act.
34. The definition of injury pursuant to the 1971 Act is:
“injury” means any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury, but, subject to section 29, does not include a disease or the aggravation, acceleration or recurrence of a disease;”
35. There was no claim that Ms Donaldson’s obesity was an injury pursuant to the legislation, and we did not accept that it was an injury.
36. Sections 29 and 30 of the 1971 Act consider disease, and state that where an employee contracts a disease or suffers an aggravation, acceleration or recurrence of a disease, and any employment of the employee by the Commonwealth was a contributing factor to the contraction, aggravation, or acceleration or recurrence of the disease, then pursuant to certain conditions, compensation is payable.
37. In order for Ms Donaldson to succeed under the 1971 Act, her employment with the Commonwealth must be found to have been a contributing factor to the contraction, aggravation, acceleration or recurrence of the obesity she suffers. In that regard we were satisfied from the evidence of Drs Stevenson and Driver that Coca Cola is not addictive. Accordingly, we were satisfied that Ms Donaldson is not addicted to Coca Cola. She said that she had a liking for it before she was posted to Singapore. She may be habituated, but we were satisfied that her consumption of it was, and is, entirely voluntary, and that if she decides to give it up, she may suffer short term headaches, but are also satisfied that she can resort to other sources of caffeine such as tea and coffee if she so wishes. We were satisfied with the evidence that there were jugs of boiled water provided for her in Singapore, as well as coffee and tea. 7UP was available in the same vending machines as Coca Cola. We were mindful of Ms Donaldson’s opinion of the food, however she appears to have continued to eat it in quantities which were clearly in excess of requirements because she continued to gain weight. The evidence indicates that Ms Donaldson consulted the RAP in 1971, and was given medication to assist with weight control.
38. We had no indication and were not satisfied that the work in the Army, Ms Donaldson’s employment contributed to her obesity. We were satisfied that Ms Donaldson’s employment with the Commonwealth was not a contributing factor to the contraction, aggravation, acceleration or recurrence of the obesity she suffers. She was not doing any work which required her to eat under unusual circumstances, or to eat in excess of her requirements, and she was certainly not required to drink Coca Cola as part of her duties. The causal connection was simply not established. Accordingly her claim cannot succeed pursuant to the 1971 Act.
39. In making that decision we took into account the case of Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 where the Court said:
“In our opinion, it follows from what is said and, indeed, from what is
not said in these passages and from a consideration of the plain words that
once it is established that an employee in the doing of his work was exposed
to "a state of affairs to which he would otherwise not have been exposed" or
to "some characteristic of or condition in which the work was to be performed"
and that such exposure was in truth a "contributing" factor to the condition
in respect of which he seeks compensation then it matters not whether the
contribution was of any particular size or degree. The same applies, where
the complaint is not one of initiation of the condition but of its aggravation,
in the sense of making it worse, or its acceleration in the sense of speeding
up the progress of a progressive disease. In all cases the question is whether
there has been a "contribution". Consistently with what was said by Windeyer
J, "contribution" does not require that the contributing factor be a causa sine qua
non; the "but for" test is not appropriate nor is the causa causans or "real
effective cause" or "proximate cause" formulation. All that is required is that
the relevant aspects of the employment add their measure to the creation of
the condition, its aggravation or acceleration. They must, in truth, be part of
the cause. If they are not, then, they do not "contribute".
….
The causal connection must be established on the probabilities and not left in the
area of possibility or conjecture. Once the link is established, however, it matters
not that the contribution be large or small.”
40. We are mindful that there may be a difference of opinion on when Ms Donaldson can be said to have become obese. Certain views, including that of Dr Stevenson were that at BMI 40 she is classified as Class III by the WHO, and thus morbidly obese. Accordingly we have also considered Ms Donaldson’s claim pursuant to the 1988 Act, because the first occasion when Ms Donaldson was found to be very severely obese, that is Obese Class III in the WHO classification, was in December 2004, when her weight was 103.5 kgs and her BMI, 46. That was long after discharge in 1978.
41. Pursuant to the 1988 Act, the definition of injury and of disease are as follows:
“4. (1) In this Act, unless the contrary intention appears:
...
“disease” means:
(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 or a licensed corporation;
...
“injury” means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
…”
42.Section 14(1) of the Act provides that:
“14 Compensation for injuries
14(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”
43. To consider whether Ms Donaldson can succeed pursuant to the 1988 Act, we had to consider whether the obesity she has suffered since December 2004 is an injury, being a disease suffered by her, or being a physical or mental injury arising out of, or in the course of her employment. In the alternative, whether she suffered a disease, an ailment or the aggravation of any such ailment being an ailment or an aggravation that was contributed to in a material degree by Ms Donaldson’s employment in the Army.
44. As already indicated above, we were satisfied from the evidence before us that Ms Donaldson commenced to, and continues to drink Coca Cola because she likes it. She had already developed a liking for Coca Cola before her posting to Singapore where she says the personnel were warned that, despite the fact that the water was considered safe to drink, they should boil their drinking water. Indeed her evidence was that jugs of boiled water were available in the mess where she took the majority of her meals, However her evidence was that the vending machines which had 7Up and Coca Cola in them were close by, and that the Coca Cola was not expensive. Accordingly she preferred to drink Coca Cola, and developed a habit of drinking it, currently drinking six to seven cans a day. She confirmed that in those days there were no further choices from the vending machines, and Diet Coke had not yet come onto the market. It has of course since, but Ms Donaldson chooses not to drink it.
45. We have already mentioned Drs Stevenson and Driver’s opinions which were unchallenged, that Coca Cola has no addictive substances in it, and that Ms Donaldson may be habituated, but not addicted to the caffeine in it. We accepted also that Ms Donaldson could give up drinking Coca Cola if she wanted to, and that any effects such as headache would cease within days or weeks with no long term effects. She was not required to drink Coca Cola in Singapore, or anywhere else, nor put in any situation where she could not get alternatives. We could not find any contribution of the employment to her weight gain.
46. We could not find that her drinking of Coca Cola and any weight gain which she has experienced as a result, was contributed to in a material degree by her employment. Accordingly, she cannot succeed with this claim.
47. The Tribunal affirms the decision under review.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger - Senior Member and Dr I Alexander, Member
Signed:
AssociateDate of Hearing 21 September 2005
Date of Decision 11 October 2005
Applicant Self Represented
Counsel for the Respondent Mr G Johnson
Solicitor for the RespondentMs M Mittiga, Dibbs Abbott Stillman LawyersAPPENDIX
“PART X - TRANSITIONAL PROVISIONS, CONSEQUENTIAL AMENDMENTS AND REPEALS
Division 1 - Preliminary
…
SECT 123A
Injuries suffered before the commencing day
123A. A reference in this Part to an injury suffered before the commencing day is a reference to an injury within the meaning of whichever of the 1912 Act, the 1930 Act or the 1971 Act was in force when the injury was suffered, as that Act was then in force.
Division 2 - Transitional provisions
SECT 124
Application of Act to pre-existing injuries
124. (1) Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.
(1A)Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.
(2) A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:
(a) where the injury, loss or damage was suffered before the commencement of the 1930 Act-under the 1912 Act;
(b) where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act-under the 1930 Act as in force when the injury, loss or damage was suffered; or
(c) in any other case-under the 1971 Act as in force when the injury, loss or damage was suffered.
(3) A person is not entitled to compensation under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing date, if:
(a)the person received compensation of a lump sum in respect of that impairment or death under the 1912 Act, the 1930 Act or the 1971 Act; or
(b)the person was not entitled to receive compensation of a lump sum in respect of that impairment or death:
(i) where the impairment or death occurred before the commencement of the 1930 Act-under the 1912 Act;
(ii) where the impairment or death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act-under the 1930 Act as in force when the impairment or death occurred; or
(iii) in any other case-under the 1971 Act as in force when the impairment or death occurred.
(4) The amount of compensation (if any) that a person is, by virtue of this section, entitled to receive under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing day, shall be the same as the amount of the compensation that would have been payable to that person, if this Act had not been enacted, under:
(a) where the impairment or death occurred before the commencement of the 1930 Act-the 1912 Act;
(b) where the impairment or death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act-the 1930 Act as in force when the impairment or death occurred; or
(c)in any other case-the 1971 Act as in force when the impairment or death occurred.
…”
48.In the 1930 Act disease is defined as follows:
“”disease” includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development, and also includes the aggravation, acceleration or recurrence of a pre-existing disease;
“injury” means any physical or mental injury and includes the aggravation, acceleration or recurrence of a pre-existing injury;”
49. Sections 12(1) and 16(1) of the 1930 Act, follow:
“12.(1) Subject to this Act, where an employee sustains, by accident arising out of or in the course of his employment, any of the injuries specified in the first column of the Third Schedule to this Act, the compensation payable shall, when the injury results in incapacity other than total and permanent incapacity for work, be the amount specified in the second column of that Schedule opposite the specification of the injury in the first column.
16.(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) Notice in respect of any injury to which this Act applies shall contain the name and address of the person injured, and a statement in ordinary language of the cause of the injury and the date at which the accident happened.
(3) The notice may be served by sending it by post in a registered letter properly addressed to the Permanent Head or Chief Officer of the Department or authority in or by which the employee was employed at the time of the accident, or by delivering it at the head office of the Department or authority or to the officer in charge of the work on which the employee was so employed, or in any other prescribed manner.”
0
2
0