Fagan and Comcare
[2003] AATA 1098
•31 October 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1098
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2002/1418
GENERAL ADMINISTRATIVE DIVISION
Re: COLLINS JOSEPH FAGAN
Applicant
And:COMCARE
Respondent
DECISION
Tribunal: G.D. Friedman, Member
Date: 31 October 2003
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) G.D. Friedman
Member
COMPENSATION ‑ extraction of tooth ‑ failure to give notice or lodge application within time limit ‑ whether prejudice to respondent ‑ whether reasonable cause for delay
Compensation (Commonwealth Government Employees) Act 1971
Commonwealth Employees’ Compensation Act 1930 s16(1)
Safety, Rehabilitation and Compensation Act 1988 s6A, 53, 124(2), (10)
Black v City of South Melbourne [1963] VR 34
Comcare Australia v McGuire (1996) 68 FCR 329
Commonwealth of Australia v Connors (1989) 86 ALR 247
Re Risson and Comcare [2003] AATA 656
REASONS FOR DECISION
31 October 2003 G.D. Friedman, Member
1. This is an application by Collins Joseph Fagan (the applicant) for review of a decision of a Comcare delegate (the respondent) dated 31 October 2002. The delegate affirmed the respondent's determination dated 11 June 2002 to refuse the applicant’s claim for compensation for the removal of his upper right central incisor tooth (the tooth).
2. At the hearing on 7 October 2003 to consider the question of whether the applicant complied with s16(1) of the Commonwealth Employees’ Compensation Act 1930 (the 1930 Act) Ms A. Malpas of counsel represented the applicant and Ms A. McMahon of counsel represented the respondent.
3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1‑T16), together with four exhibits (Exhibits A1 to A4) tendered by the applicant and two exhibits (Exhibits R1 and R2) tendered by the respondent.
BACKGROUND
4. The applicant was born on 4 December 1929 and enlisted in the Royal Australian Air Force (RAAF) on 2 October 1950 as a Pilot Officer. On 4 January 1980 he was discharged at his own request. On 3 April 2002 the applicant lodged an application for compensation for the extraction of the tooth in the course of his service with the RAAF in July 1965 (T4).
5. On 11 June 2002 the respondent disallowed the claim under s16 of the 1930 Act because the applicant had not lodged his claim within six months of the date on which the injury occurred. On 28 June 2002 the applicant sought reconsideration of the decision, and on 31 October 2002 the respondent affirmed the decision. On 24 December 2002 the applicant lodged an application with the Tribunal for review of the decision.
EVIDENCE
6. In a written statement (T5), attached to his claim for compensation, the applicant said that in 1964 he was a Squadron Leader with 5 Airfield Construction Squadron at Tindal in the Northern Territory, about 12 kilometres south of Katherine. He stated that the living conditions and medical facilities at the future airfield site were primitive and there was no doctor or dentist at the site or in Katherine. He said that dental work had to await an RAAF mobile dental van on its infrequent visits from Darwin, and emergency cases would have to be evacuated to Darwin.
7. The applicant stated that during the midday meal in about July 1965 he bit into a piece of bread and broke the tooth below the gum line. It caused inconvenience but no pain and was unsightly. He said that he was due to leave the site the following month to collect his wife and children from Melbourne and bring them back to live in a caravan at Tindal. For this reason he wanted the tooth dealt with and he elected to wait for the mobile dental van which was scheduled to visit before his departure. The applicant stated that when the van arrived he explained the situation to the visiting dental officer, a young officer, Flight Lieutenant M. Costello, who had recently completed his civilian dental qualifications. The applicant noted that Flight Lieutenant Costello did not wish to preserve or restore the tooth, and recommended that it be removed. The applicant said that he accepted the recommendation, and Flight Lieutenant Costello extracted the tooth (the extraction) and inserted a denture, resulting in long‑term dental problems that remain unresolved, despite extensive treatment from other dentists.
8. In oral evidence the applicant told the Tribunal that at the time of the extraction (which he now believed to be July 1964 and not July 1965) the mobile x‑ray machine in the mobile van was not operational. He also said that he had been reluctant to agree to an extraction, but in the circumstances he agreed to the procedure. The applicant stated that when he was in Melbourne, collecting his family, he visited a friend (Squadron Leader A. Woods) who was a dental officer and who examined the dental work.. The applicant said that Squadron Leader Woods made whatever improvements to the tooth plate were possible in the short time available. The applicant stated that Squadron Leader Woods saw him again later in 1965 and adjusted the clasp on the fitting of the denture.
9. The applicant explained that after an intensive twelve‑month course at a staff college in Canberra, he was transferred to the United Kingdom in 1967 on an exchange posting to the Royal Air Force, and that during this hectic time there was no time to consider the tooth. He stated that he returned to Australia in 1970, and has had treatment by a number of dentists since then. An RAAF specialist dentist carried out further work on the bridge between 1971 and 1980, after which the applicant said that he decided to seek a discharge, following the murder of his wife in 1978. He said that he has consulted several dentists and has had ongoing treatment, including the re‑making of the bridge a number of times. He emphasised that current problems include infection in adjoining teeth, pain and repeated abscesses. He said he expects to require ceramic implants as the next phase of treatment. The applicant estimated that he has spent about $20,000 on treatment for the tooth.
10. The applicant told the Tribunal that after his discharge he was appointed as a member of the Repatriation Review Tribunal (RRT), which was replaced by the Veterans’ Review Board (VRB), and which operated as an appeal body in relation to veterans’ entitlements. He said because of his involvement with that tribunal he did not wish to lodge a claim in relation to the extraction, as he did not consider that perusal of his personal documents by the respondent was appropriate.
11. In a letter to the respondent dated 26 April 2002 (T9) the applicant said that the reason for not lodging his compensation claim earlier was that he was not aware that any mechanism existed for such a claim. He stated that, in hindsight, he could not imagine the RAAF admitting that it had not delivered appropriate treatment, regardless of the remoteness of the location. The applicant agreed that in 1978 he sought compensation in relation to a respiratory condition and anxiety. He explained that the focus of his legal advice was on the need to care for his five young children after the death of his wife, and these matters were more important than the question of a missing tooth. He said that only as a result of a more recent awareness of the compensation avenues and having the time to consider his position did he know that a legitimate claim could be lodged.
12. Under cross‑examination the applicant acknowledged that before enlisting in the RAAF he had had a number of dental procedures concerning the tooth. But he could not recall the nature or extent of the treatment due to the passage of time, although he identified root filling and the insertion of an inlay following an infection. He agreed that there was no record of the extraction held by the respondent in his 1964 or 1965 service dental or medical records. He also agreed that the only entry recorded by Flight Lieutenant Costello was on 26 May 1965, and this made no mention of the extraction. The applicant accepted the proposition that he had followed the recommendation by Flight Lieutenant Costello at the time of the extraction, but he maintained that he was concerned at the lack of x‑ray facilities and also the remoteness of the location, which reduced the options of obtaining a second opinion or alternative treatment.
13. The applicant agreed that he had not lodged a complaint about the extraction while a serving officer in the RAAF or on discharge. He said that there was no complaint mechanism and, in any event, the RAAF would have considered such a matter to be trivial. He acknowledged that the RRT/VRB did not deal with compensation issues, but said that after discharge he did not have any of his personal records discussed or examined. He stated he was aware of the procedure for lodging compensation claims in 1978, but that his decision to seek compensation for the extraction, arose in 2002 because he is in his final year of appointment as a member of the VRB.
14. In a letter to the applicant dated 3 February 2003 (Exhibit A3) Mr K. Woods, retired RAAF dental officer, stated that he was a close friend of the applicant in the RAAF. He said he recalled that in the 1960s the applicant was upset at dental treatment carried out in the Northern Territory, and consulting him about problems with a denture that had been inserted after the extraction of a front tooth. Mr Woods recalled that in the limited time available he attempted to make the applicant more comfortable by modifying the clasps on his denture. He said that he was surprised that no x‑ray had been carried out before the extraction of the tooth. In a further letter to the applicant dated 7 March 2003 (Exhibit A4) Mr Woods stated that extraction of the tooth at the time would have been appropriate only to relieve severe pain; and that alternative treatment would have been to travel to Darwin for an x‑ray or to do nothing other than monitor the situation to ensure that the tooth was not being overloaded.
15. In a written report dated 23 June 2003 (Exhibit R1) summarising the applicant's dental treatment during his service with the RAAF, Dr R. Nunn, dentist, stated that from October 1950 to March 1957 there were a number of procedures relating to the tooth, including root canal therapy, various dressings and the insertion of an inlay. A new inlay was inserted after 1957. He said that the records show that in December 1965 there was a placement of a partial denture with a metal base, which he assumed was to replace the tooth, as there was no record of the extraction. Dr Nunn noted that in July 1971 a non‑removable bridge replaced the tooth and involved a crown on either side of the space to support the missing tooth.
16. Dr Nunn stated:
…The absence of details makes judgment impossible. One can only make assumptions as to what was the case. However a tooth which has been root canal treated twice and restored a number of times would be compromised in strength and subject to a greater chance of mechanical failure (fracture) than an unrestored tooth. The survival of such a tooth is also heavily dependent on the type of bite present (how the jaws close together), history of trauma or grinding habits. This is not recorded.
In response to the letters from Mr Woods, Dr Nunn stated that the absence of pain is not necessarily an indication that the tooth can be saved, and that the predominant factor is the amount of sound natural tooth left to act as a support for the filling or restoration which is placed there.
17. In an affidavit dated 7 October 2003 (Exhibit R2) Mr P. Ontong, Director, Reconsiderations and Appeals of the Department of Veterans' Affairs, stated that the Department had made a thorough search of all service and dental records relating to the applicant held by the RAAF, and that there was no written notice, or claim made, by the applicant concerning the removal of a tooth or any subsequent treatment before 3 April 2002. Mr Ontong stated further that, before his discharge in 1980, the applicant provided a health statement in which he made no reference to any dental problems or ongoing need for treatment in relation to the tooth.
CONSIDERATION OF THE ISSUES
18. Section 6A of the Safety, Rehabilitation and Compensation Act 1988 (the 1988 Act) provides that, in respect of a member of the Defence Force:
6A (2) If, at any time, whether before, on, or after, 1 December 1988:
(a)an employee to whom this section applies received or receives medical treatment paid for by the Commonwealth; and
(b)as an unintended consequence of that treatment the person suffered or suffers an injury;
the injury to the employee is taken to have arisen out of, or in the course of, the person's employment, whether or not the person has remained an employee to whom this section applies.
(3) Subsection (2) applies whether or not the original condition that was being treated was compensable under this Act.
19. Under the transitional provisions of the 1988 Act, s124(2) provides that a person is not entitled to compensation in respect of an injury suffered before 1 December 1988, if compensation was not payable in respect of that injury under the Act in force as at the date of injury. Section 124(10) of the 1988 Act provides:
124 (10) Where:
…
(b)a claim for compensation by a person under the 1930 Act, in respect of an injury suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act, was not admissible because of section 16 of the 1930 Act; or
…
that person is not entitled to compensation under this Act in respect of that injury.
20. Section 16 of the 1930 Act provides:
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…
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 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.
…
21. Ms Malpas submitted that the extraction of the tooth was not appropriate treatment. She noted that further treatment was carried out in 1965 and 1971 and was paid for by the RAAF, and said that the applicant could not have anticipated that he would still be having treatment many years later. She stated that s6A of the 1988 Act makes specific provision for claims resulting from medical treatment provided by the Commonwealth, and that under the 1930 Act and the Commonwealth Employees’ Compensation Act 1971 the applicant would have been paid compensation, but a lay person would have required legal advice in relation to the interaction of the relevant sections. She said that there was no reason for the applicant to seek compensation at the time because his only entitlement was the payment of ongoing dental treatment, and that the cost of continued treatment was an unintended consequence of the extraction under s6A of the 1988 Act.
22. In relation to the extraction, Ms Malpas said that the failure of Flight Lieutenant Costello to record the procedure in 1964 was consistent with his failure to take appropriate action or consider other treatment options. She said that in 1978 the applicant suffered severe trauma and personal crises following the death of his wife, and his failure to lodge a claim at that stage was understandable. In addition, Ms Malpas said that after the applicant’s discharge he held the reasonable belief that because of his position with the RRT/VRB he did not wish to subject himself to scrutiny of his personal files.
23. Ms Malpas stated that that the respondent was aware of the events that gave rise to the claim for compensation, and had access to the applicant’s complete service and medical records, including details about Flight Lieutenant Costello. She submitted that for these reasons the respondent was not unduly prejudiced by the failure of the applicant to lodge his claim within six months, and that in the circumstances of the case the explanation constituted reasonable cause for the purposes of the 1930 Act. She submitted that under beneficial legislation such as the 1930 Act, if the Tribunal finds that reasonable cause is found for not making the claim within six months, then any prejudice to the respondent will not necessarily prevent the claim from proceeding (Comcare Australia v McGuire (1996) 68 FCR 329).
24. Ms Malpas referred to s53 of the 1988 Act, which relates to circumstances where notice of an injury is taken to have been given (Re Risson and Comcare [2003] AATA 656).
25. Ms McMahon referred to s16(1) of the 1930 Act and submitted that the applicant served no notice of the injury. She also said that the applicant did not meet the provisions of s16(2) or (3) dealing with the requirement that notice be in writing and the method of service. Ms McMahon noted that the applicant made no complaint at the time of the extraction or afterwards, so there were no grounds for concluding that the respondent had constructive notice of the injury.
26. Ms McMahon noted that the delay of nearly 38 years in lodging the claim or giving notice of the injury has caused prejudice to the respondent, as the respondent was unable to have the applicant medically examined at the time of the injury or between the date of discharge in 1980 and the date of the claim in order to establish the relationship, if any, between the applicant’s dental condition and the circumstances of the events at the time of the extraction. She noted the difficulty in locating dentists, including Flight Lieutenant Costello, who treated the applicant during his RAAF service, and said that, even if they could be located, they would be unlikely to recall treatment and events that occurred nearly forty years ago. Ms McMahon also pointed to the substantial treatment to the tooth, including root canal work that had occurred before the extraction, and the difficulty in investigating fully the claims made by the applicant concerning the circumstances of the extraction.
27. Section 16(1) of the 1930 Act states that where there is a failure to give notice of injury, the failure can be overcome if it was occasioned by mistake, absence from Australia or by other reasonable cause. Ms McMahon submitted that while the applicant was ignorant of his obligation to give notice of injury, there was no mistake (Commonwealth of Australia v Connors (1989) 86 ALR 247, Black v City of South Melbourne [1963] VR 34); and that the applicant was not absent from Australia within six months of the extraction. She said that the applicant had conceded that in 1978 he became aware of his rights to seek compensation and chose not to do so. She said that the fact that the applicant’s treatment was paid for by the RAAF until 1980 was irrelevant to the need to comply with the requirements of the 1930 Act, to give notice and make a claim for compensation within the stipulated time limits. Ms McMahon submitted that the applicant’s busy career and family life was no impediment to his ability to make a claim, and that the applicant knew that membership of the RRT/VRB was irrelevant because these bodies did not consider compensation claims.
28. Ms McMahon submitted that, for these reasons, the applicant had not shown that there was reasonable cause for his failure to give notice of injury and make a claim within the time specified in the legislation.
29. In reaching its decision, the Tribunal takes into account the written and oral evidence and submissions made at the hearing.
30. With respect to s6A of the 1988 Act, the Tribunal takes into account that the RAAF paid for ongoing dental treatment while the applicant was a serving officer, until his discharge in 1980. However, on the available documentary and other evidence, the Tribunal is not persuaded that the applicant suffered an injury as an unintended consequence of treatment provided by the Commonwealth.
31. With respect to s16 of the 1930 Act, the Tribunal accepts that the applicant has had continuing problems with the tooth over many years and that further treatment will be needed. The Tribunal also accepts the applicant’s evidence that at the time of the extraction he was in a remote location, in difficult circumstances, and was anxious to deal with the matter at the base rather than travel to Darwin for treatment. However, the Tribunal notes that the applicant was not in pain and he had an opportunity to consider fully the treatment recommended by Flight Lieutenant Costello. He followed the recommendation even though he was aware of previous procedures on the tooth, and that Flight Lieutenant Costello was an inexperienced dentist.
32. The Tribunal accepts Mr Ontong's evidence, that a search of medical records has failed to locate any record of the extraction. However, there is no evidence that Flight Lieutenant Costello was responsible for the absence of relevant documents. Therefore, the Tribunal does not accept the submission from Ms Malpas that an inference should be drawn that Flight Lieutenant Costello failed to carry out proper dental procedures.
33. In relation to the death of the applicant’s wife in 1978, the Tribunal accepts that this event caused considerable trauma to the applicant and placed a heavy burden on him concerning the care of his children. However, the applicant agreed in evidence that he had engaged the services of a solicitor who lodged other compensation applications on his behalf at that time. Therefore, even if the applicant was ignorant of his right to claim compensation until then, from 1978 onwards he knew about the possibility of lodging a compensation claim and chose not to pursue this option until April 2002. In his pre‑discharge medical questionnaire in 1979 he gave no indication of complaints about the extraction. His busy career and family commitments would not have prevented him from making a claim. Although the applicant’s treatment was paid for by the RAAF, this did not excuse him from fulfilling the requirements of the 1930 Act regarding the giving of notice and making the claim.
34. After the applicant’s discharge and his appointment as a Tribunal member, he may have felt some embarrassment about the consequences of lodging a compensation claim. However, the Tribunal accepts Ms McMahon's submission that the applicant knew that the RRT/VRB did not have jurisdiction over compensation claims, and that any scrutiny of his personal files would be confined to medical/dental issues. Therefore, the Tribunal concludes that the applicant’s membership of the RRT/VRB was not relevant to his failure to lodge a claim until April 2002.
35. The Tribunal takes into account the comments by Mr Woods concerning the measures he took to assist the applicant after the extraction. However, the delay of nearly 38 years in lodgment of the claim has deprived the respondent of any reasonable possibility of carrying out appropriate dental examinations that would establish the relationship, if any, between the applicant’s dental condition and the circumstances at the time of the extraction. Particularly in view of the dental work carried out before the extraction. The Tribunal agrees with Ms McMahon, that dental and other service personnel and civilian dentists would have little ability to recall specific events after such a long period, even if the respondent or the Department of Veterans' Affairs could locate such persons. Consequently, the Tribunal finds that these matters constitute severe prejudice to the respondent.
36. For these reasons the Tribunal finds that the reasons given by the applicant for failing to serve notice of the injury as soon as practicable after it happened, or within six months of its occurrence, or for failing to make the claim within six months of the occurrence of the injury, do not constitute a reasonable cause for the purposes of the 1930 Act. On the available material the Tribunal finds that, although at the time of the extraction the applicant was not aware of his entitlement to claim compensation, there was no mistake or relevant absence from Australia. Similarly the Tribunal finds that s53 of the 1988 Act does not apply in this case.
37. Therefore, the applicant does not satisfy s16(1) of the 1930 Act and he cannot succeed in his application. As a result, there is no need for the Tribunal to re‑convene the hearing to consider additional evidence.
DECISION
38. The Tribunal affirms the decision under review.
I certify that the thirty‑eight [38] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Member
(sgd) Olympia Sarrinikolaou
Clerk
Date of hearing: 7 October 2003
Date of decision: 31 October 2003Counsel for applicant: Ms A. Malpas
Solicitor for applicant: Campbell and Shaw
Counsel for respondent: Ms A. McMahon
Solicitor for respondent: Australian Government Solicitor
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