Frank Parker and Military Rehabilitation and Compensation Commission
[2013] AATA 539
[2013] AATA 539
Division VETERANS' APPEALS DIVISION File Numbers
2013/0852 and 2013/1038
Re
Frank Parker
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 2 August 2013 Place Brisbane The Tribunal affirms the decisions under review.
...........................[SGD]..........................................
Mr R G Kenny, Senior Member
CATCHWORDS
COMPENSATION – Military Compensation – Claims for “wrong glasses from the army” and “congenital protrusion both heels” – Alleged relationship to Army service occurring prior to commencement of Safety, Rehabilitation and Compensation Act 1988 (Cth) – Transitional provisions – Failure to give notice of accident as soon as practicable under Commonwealth Employees’ Compensation Act 1930 (Cth) – Commonwealth prejudiced by want of notice – Relevance of mistake for late notice and late claim – Relevance of ignorance about making a claim – No reasonable cause for late notice or late claim – Decision under review affirmed
LEGISLATION
Commonwealth Employees’ Compensation Act 1930 (Cth) ss 4, 9, 16
Compensation (Commonwealth Government Employees) Act 1971 (Cth) s 53
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 124
CASES
Bedford Military Rehabilitation and Compensation Commission [2012] AATA 338
Re Muras and Department of Defence (1998) 52 ALD 579
Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534
Secretary of the Department of Veterans' Affairs v Studdert [2001] FCA 1642Telstra Corporation v Roycroft (1997) 47 ALD 671
REASONS FOR DECISION
Mr R G Kenny, Senior Member
2 August 2013
BACKGROUND
On 14 October 2008, Frank Parker lodged, with the Military Rehabilitation and Compensation Commission (“the MRCC”), claims for rehabilitation and compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the 1988 Act”) for “wrong glasses from the army”,[1] and “congenital protrusion” of “both heels”.[2] He related the conditions to his service in the Australian Army (“the army”). The MRCC disallowed both claims on 22 May 2009 and affirmed that determination, in the reviewable decisions, dated 9 August 2010 and 22 January 2010, respectively.
[1] Exhibit 3, pp. 14-21.
[2] Exhibit 2, pp. 16-22.
ISSUES AND LEGISLATION
The 1988 Act provides for compensation to be paid by the Commonwealth for work‑related injuries which occurred after the commencement date of the 1988 Act. This was 1 December 1988. The 1988 Act also contains transitional provisions in relation to injuries or diseases that occurred prior to that date.[3] It is common ground that the legislation relevant to Mr Parker's claim is the Commonwealth Employees' Compensation Act 1930 (Cth) ("the Act") and that the condition affecting Mr Parker’s eyes and his heel condition are injuries under s 4(1) of the Act. For liability to arise under the Act, an injury must have arisen out of or occurred in the course of employment with the Commonwealth.[4] Mr Parker’s Commonwealth employment was as a National Serviceman in the army from 20 April 1966 until 19 April 1968.
[3] See s 124 of the 1988 Act.
[4] See s 9 of the Act.
Time-frames for giving notice of an accident and for making a claim for any injury or disease to be admitted are set down in s 16 of the Act which, in so far as relevant, reads:
(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 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.
…
(4) 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 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) a notice shall, for the purposes of sub-section (2) of this section, be deemed to contain the date at which the accident happened if it specifies the date at which, or period during which, the employee contracted the disease; and
(d) a notice shall be deemed to have been duly served in accordance with the last preceding sub-section if
(i) it was sent in the manner specified in that sub-section to the Permanent Head or Chief Officer of the Department or authority by which the employee was employed in employment to the nature of which the disease was due or, if he was so employed in more than one Department or authority, to the Permanent Head or Chief Officer of the Department or authority by which he was last so employed;
(ii) it was delivered at the head office of the Department or authority by which he was so employed or last so employed, as the case requires; or
(iii) it was served in any other prescribed manner.
EVIDENCE
Mr Parker wore glasses at the commencement of his army service and had done so since he was eight years of age. He misplaced them in June 1967 when he was involved in a motor vehicle accident. He attended 2 Camp Hospital at Ingleburn where he was seen by Dr Rose who tested his eyes and arranged for Mr Parker to be fitted with new glasses. Mr Parker was critical of the testing procedures conducted by Dr Rose and believed that the glasses he received were not appropriate for him. Mr Parker said that Dr Rose advised that he would be referred to a specialist optometrist for an appointment, but that this did not happen despite Mr Parker requesting this appointment on several occasions over a period of a few months. As he was not given any assistance, he “gave up” on pursuing it further.[5] In 1971, his vision was tested by optician Dr Roy Peterson. Mr Parker said that Dr Peterson had been “horrified at Dr Rose’s script”.[6] He was fitted with new glasses again and found that these improved his eyesight.
[5] Exhibit 3, p. 37.
[6] Exhibit 3, p. 24.
Mr Parker accepted that he had suffered from heel problems since he was a child and described his heel condition as congenital in nature. An x-ray report, dated 3 October 2008, noted that he suffered from congenital protrusion of the posterolateral calcanei and that Mr Parker’s father and brother suffered from the same condition.[7] He suffered from painful feet during his service, especially in his initial training. Mr Parker said that he sought treatment for his feet at a regimental aid post (“RAP”) in Singleton but this was refused and he was told to get his boots back on. He was unable to recall with whom he consulted at the RAP.
[7] Exhibit 2, p. 23.
Mr Parker’s discharge medical documentation was in evidence. No reference is made therein to problems with Mr Parker’s vision or his glasses.[8] Mr Parker’s service medical documentation confirms the testing of his eyes in August 1967 and also includes reference to the need for him to have a specialist consultation.[9] His service medical records make no reference to treatment for or problems with his feet.
[8] Exhibit 3, p. 41.
[9] Exhibit 3, pp. 46-50.
Mr Parker conceded that he had no knowledge of the legislation dealing with compensation claims and that he was unaware that he was able to make a claim for compensation against the Commonwealth until many years after his service.
SUBMISSIONS
Mr Hawker, submitted that the first notification by Mr Parker to the respondent of his vision concerns or his foot conditions was when he lodged his claims in 2008. He submitted that Mr Parker had been aware of the vision and heel problems from the time of his army service and that, by delaying contact with the respondent until 2008, he had not complied with the notice and claim requirements in s 16 of the Act. Mr Hawker also submitted that the respondent had been prejudiced by the lateness of the notice and claim because of the absence of contemporaneous medical evidence about the conditions and the associated problems in investigating the circumstances relied upon by Mr Parker or locating any witnesses after so many years. He noted that the vision and heel problems pre-dated Mr Parker’s service but no medical evidence from that period was available to the respondent. He submitted that there was also an absence of medical evidence in relation to Mr Parker’s vision until his account of the comment by Dr Peterson and no reference to his feet condition prior to the x-ray in 2008. He noted that there was no documentation in relation to consultations with Dr Peterson.
Mr Hawker submitted that the prejudice in this matter was more than minimal and “of such a nature as to hamper the Commonwealth unreasonably in preparing to meet the applicant's claims”.[10] Mr Hawker also submitted that the delay by Mr Parker was due to his ignorance of the compensation process and that this did not amount to a mistake or other reasonable cause for accepting his claim. He submitted that Mr Parker’s claim ought be dismissed because of the terms of s 16 of the Act.
[10] Citing Re Muras and Department of Defence (1998) 52 ALD 579.
CONSIDERATION
Mr Parker was examined by Dr Rose at the hospital in Ingleburn for the purpose of being fitted with a pair of replacement glasses. While these were provided to him at that time, he experienced problems with his vision until 1971 when, it seems, Dr Peterson reassessed him and arranged for new glasses with a new prescription. Mr Parker found these to more suitable. Mr Parker was aware of the problem with his glasses from 1967 or, at the latest, from 1971 when he was fitted with the new glasses. In relation to his feet, Mr Parker was well aware of the problem from the early part of his service. Mr Parker's first claims for his eyes and feet were made in 2008. Clearly, this was many years after he was aware of the problems with his eyes and feet. I am satisfied that Mr Parker did not give notice and did not make a claim within six months of becoming aware that he was suffering from the vision and feet conditions as required by s 16(1) of the Act.
Under s 16(1) of the Act it would be sufficient for notice to have been given and a claim to have been made as soon as practicable after Mr Parker became aware that he was suffering from the claimed conditions. Because of the delays of almost 40 years from when Dr Peterson amended the prescription for his glasses and of more than 40 years since he made complaint during his service, I am satisfied that notice was not given nor a claim made as soon as practicable after he was aware of the conditions.
The absence of timely notice by Mr Parker, alone, does not preclude him from meeting the notice requirements under s 16(1) of the Act. His claim for those matters may still be considered if the want of timely notice does not prejudice the respondent or if it was occasioned by mistake or other reasonable cause.[11] Similarly, the failure to make a timely claim will not prevent its consideration if that failure was occasioned by mistake or other reasonable cause.[12]
[11] See s 16(1)(b)(i) of the Act. The “absence from Australia” factor does not arise in this matter.
[12] See s 16(1)(b)(ii) of the Act. The “absence from Australia” factor does not arise in this matter.
Prejudice
The Tribunal, in Re Tierney and Reserve Bank of Australia,[13] referred to the purpose of the notice requirement as it appears in s 53(1) of the Compensation (Commonwealth Government Employees) Act 1971 (Cth), which is not materially different from the provision under consideration in the Act:
Section 53 is clearly intended to protect the Commonwealth and its instrumentalities from being placed in a situation where they are unable to disprove an employee's assertion of an injury alleged to have occurred on some specific occasion in the course of the employee's work or of a disease contracted because of some brief and transient situation. Some such provision is clearly needed to prevent abuse of the Act.[14]
[13] (1988) 15 ALD 534.
[14] Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534 at 535.
I am satisfied that the respondent would be prejudiced if it were required to consider Mr Parker's claim. Mr Parker's discharge medical reports do not implicate any problem with his vision or with his feet. While his consultation with Dr Rose during service is documented, there is no other material to assist in an investigation of Mr Parker’s eye or feet problems. The many years that passed before Mr Parker gave notice meant that the respondent was not given the opportunity to investigate those matters in a timely manner and I am satisfied that it would be prejudiced if it were required to do so in relation to the claims in 2008.
Mistake or other reasonable cause
Despite that prejudice, consideration must still be given to the alternative component of the proviso in s 16 of the Act. This is whether the delay was occasioned by mistake or other reasonable cause.[15]
[15] See Secretary of Department of Veterans’ Affairs v Studdert [2001] FCA 1642 at [11] per Moore J and Bedford and Military Rehabilitation and Compensation Commission [2012] AATA 338.
There is no evidence of mistake by Mr Parker. His evidence was that he simply was unaware of his right to make a claim until many years after his service. That lack of awareness equates with ignorance on his part about the claim process. The Act distinguishes between ignorance and mistake with only the latter being of relevance under the Act. The distinction between the two concepts was referred to in Telstra Corporation v Roycroft[16] by North J who described the relevant authorities as establishing the following propositions:
1. A person who is not aware of a right to claim compensation at all is not mistaken about the right, but ignorant of it: Roles v Pascall & Sons [1911] 1 KB 982.
2. A person who knows that he has a right to claim compensation for one sort of injury, but no idea whether or not he has a right to claim for another, is not mistaken as to his right to claim for the second type of injury, but is ignorant of it: Commonwealth of Australia v Connors (1989) 86 ALR 247.
3. A person who knows he has a right to claim compensation for one sort of injury, and wrongly believes that he has no right to claim for another type of injury, is mistaken as to the right to claim for the second type of injury: Stevenson v Metropolitan Meat Industry Commission (1936) 37 SR (NSW) 109.
4. It follows from these authorities that a person who knows he has a right to claim compensation for the particular injury and knows that the time for making the claim is limited, but wrongly believes he has more time to make a claim than the Act allows, is mistaken as to the time for making the claim.[17]
[16] (1997) 47 ALD 671.
[17]Telstra Corporation v Roycroft (1997) 47 ALD 671 at 677.
His Honour went on to point out that there was a thin line between mistake and ignorance, but said:
If a person acts on the basis of knowledge of the Act and that knowledge is wrong, or the facts upon which the person relies are wrong, then the person has made a mistake. If a person acts without any knowledge about the Act or an aspect of it, and consequently does not know whether or not it applies, then the person is ignorant.[18]
[18] Telstra Corporation v Roycroft (1997) 47 ALD 671 at 679.
I am satisfied that Mr Parker's failure to give notice and to make his claims in a timely manner was because he was ignorant of his right to do so. I am also satisfied that there was no reasonable cause for Mr Parker's late notice and claim.
I am satisfied that Mr Parker's notice of and claims for his injuries were outside of the time-frames set out in s 16 of the Act and that, accordingly, his claim for compensation should not be admitted for consideration.
DECISION
The Tribunal determines that Mr Parker’s claims may not be admitted under s 16 of the Act. In accordance with the 1988 Act the claims are disallowed and the decisions under review are affirmed.
I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member ............................[SGD]..................................
Associate
Dated 2 August 2013
Date of hearing 16 July 2013 Applicant
Solicitor for the Respondent
By Telephone
Matthew Hawker, Sparke Helmore Lawyers
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