Fagan and Comcare - [2003] AATA 1098

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fagan and Comcare

Details

AGLC: Fagan and Comcare [2003] AATA 1098
Case: [2003] AATA 1098
Decision Date: 31 October 2003

CaseChat Overview and Summary

Collins Joseph Fagan applied for review of a Comcare decision to refuse his claim for compensation for the extraction of his upper right central incisor tooth during his service with the Royal Australian Air Force (RAAF) in 1965. The Comcare delegate had disallowed the claim under section 16 of the Commonwealth Employees’ Compensation Act 1930 (1930 Act) because the applicant had not lodged his claim within six months of the date on which the injury occurred. The central legal issue was whether the applicant’s failure to give notice of the injury or lodge a claim within the specified time limit could be excused as reasonable cause under section 16 of the 1930 Act.

The Tribunal considered the applicant’s evidence that he was in a remote location at the time of the extraction and had not realised the need to lodge a claim. However, the Tribunal noted that the applicant was not in pain and had an opportunity to consider the recommended treatment. The Tribunal also accepted that the applicant’s busy career and family life did not prevent him from making a claim. Crucially, the Tribunal found that the nearly 38-year delay in lodging the claim had deprived Comcare of any reasonable possibility of carrying out appropriate dental examinations to establish the relationship between the applicant’s dental condition and the circumstances at the time of the extraction. The Tribunal concluded that the reasons given by the applicant for the delay did not constitute reasonable cause for the purposes of the 1930 Act. Therefore, the Tribunal affirmed the decision under review, finding that the applicant did not satisfy section 16(1) of the 1930 Act and could not succeed in his application.

Orders