FRANK PARKER and MILITARY REHABILITATION AND COMPENSATION COMMISSION
[2012] AATA 646
•25 September 2012
[2012] AATA 646
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/1198
Re
FRANK PARKER
APPLICANT
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 25 September 2012 Place Brisbane The Tribunal determines that Mr Parker’s claim for posttraumatic stress disorder may not be admitted under s 16 of Commonwealth Employees’ Compensation Act 1930 (Cth).
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Mr R G Kenny, Senior Member
CATCHWORDS
COMPENSATION – Posttraumatic stress disorder – 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 9, 16
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 9, 53, 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 1642
Telstra Corporation v Roycroft (1997) 47 ALD 671
REASONS FOR DECISION
Mr R G Kenny, Senior Member
25 September 2012
BACKGROUND
On 12 July 2010, Frank Parker lodged, with the Military Rehabilitation and Compensation Commission (“the MRCC”), a “Claim for Rehabilitation and Compensation” under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the 1988 Act”) for “posttraumatic stress disorder”. He related the condition to his national service in the Australian Army from 20 April 1966 until 19 April 1968. The MRCC disallowed the claim on 31 August 2011 and affirmed that determination, in a reviewable decision, on 24 February 2012.
Mr Parker also referred to “eyesight” in his claim form. However, no determination or reviewable decision has been made in relation to that condition and it is not the subject of review.
ISSUES AND LEGISLATION
The 1988 Act makes provision for compensation to be paid by the Commonwealth in relation to work-related injuries where the injury or disease occurred after the commencement date of the 1988 Act. This was 1 December 1988. The 1988 Act also contains transitional provisions which pertain to injuries or diseases that occurred prior to that date.[1] It is not in dispute that the legislation relevant to Mr Parker's claim is the Commonwealth Employees' Compensation Act 1930 (Cth) ("the Act") or that a psychiatric condition is a disease under s 4(1) of the Act. For liability to arise under the Act, the disease must have arisen out of or occurred in the course of employment with the Commonwealth.[2] Time-frames for giving notice of an accident and for making a claim to be admitted are set down in s 16 of the Act which, in so far as relevant, reads:
[1] See s 124 of the 1988 Act.
[2] See ss 9 and 10 of the Act.
(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 incident; or
…
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 10, and sub-section 4(2), 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.
It is not in dispute that Mr Parker was involved in a motor vehicle accident on 19 June 1967 or that this resulted in his being taken to Fairfield Hospital before being transferred to 2 Camp Hospital at Ingleburn. He was a patient there from 19 June to 26 June 1967 and again from 11 August to 28 September 1967. In previous claims under the Act, Mr Parker relied on the motor vehicle accident as the basis for the cause of injury/disease. However, his present claim was based on his not coping with the “dismembered Vietnam evacuees” who were in the hospital ward when he was there as a patient.
EVIDENCE
Mr Parker
In his evidence, Mr Parker confirmed that he had been in Ingleburn hospital after the accident and that he shared a ward with repatriated Vietnam veterans who were recuperating from injuries. He described some of the patients as missing limbs and others as having been dismembered. He reacted badly to the sight of these injuries and the crying of the men, especially at night. In his statement, dated 8 December 1999, Mr Parker wrote that many of the men in the ward begged him “to kill them to get them out of their misery and the prospect of life with missing limbs”. However, in a subsequent statement[3], Mr Parker wrote that he had not been asked to kill anyone but that he “had flashes of that when they broke down after 9pm”. It was the effect of his observations and contact with these veterans which he considered to have been responsible for the development of his posttraumatic stress disorder.
[3] Forwarded by Mr Parker after the hearing.
Mr Parker said that, while he was still serving in the Army and in the years after his discharge, he experienced feelings which he later associated with forms of psychological conditions. He described “trance-like feelings” of detachment, of feeling “stoned” and of having “out of body experiences” where he would see himself observing and advancing towards the sea. Mr Parker recalled that, on first returning to civilian work, his employer told him that he functioned as if “in a cloud or a mist”. In the years following service, Mr Parker consumed alcohol heavily and developed an alcohol addiction which stayed with him for many years. He attributed this to genetic factors rather than to any aspect of his Army service. Mr Parker consulted a doctor in 1973 for his alcohol problems. However, he was unable to say when he was first diagnosed with any other psychiatric condition. He recalled seeing psychiatrists in the mid-1990s but could not recall any specific diagnosis being made by them. Mr Parker conceded that posttraumatic stress disorder had not been formally diagnosed in him but submitted that from his own research he believed that he demonstrated the symptoms relevant to that condition.
Mr Parker said that, like most soldiers, he did not talk about personal and private aspects of his service. He referred to a copy of his Certificate of Discharge from the army, dated 29 May 1968, and drew attention to the following entry therein:
WARNING
On leaving Her Majesty's Service you are hereby reminded that the unauthorized communication by you to another person AT ANY TIME of any information you may have acquired which might be useful to the enemy in War renders you liable to prosecution under the Official Secrets Act.
He believed that, because of that requirement, he was not permitted to refer to service matters.
Mr Parker conceded that he was unaware that he was able to make a claim for compensation against the Commonwealth until 1996 when he was so advised by a man with involvement in veterans' compensation matters. He then made his first claim on 17 April 1996.
Other evidence
In evidence were statements from Mr Parker's sister, Ms P Paterson, and his brother, Anthony Parker. Ms Paterson described an accident in which Mr Parker was involved in 1953, advising that he suffered severe head injuries at that time. Anthony Parker provided a letter, dated 25 September 20109, confirming the presence of injured Vietnam veterans in the hospital ward with Mr Parker.
Zelda Murray, the Executive Officer of the Defence Single Access Mechanism of the Department of Defence, provided, on 24 July 2012, an e-mail message in relation to the Ingleburn Hospital during the Vietnam War. She confirmed that most Vietnam evacuees were treated at Concord Hospital but that some were hospitalised at Ingleburn. She noted that she was unable to locate the admission and discharge register and advised that the patient records were held with the members' individual medical files and would be accessible only if the names of individual veterans were made available. Despite that, a copy of the admission and discharge book was made available to the respondent on 25 July 2012.
A copy of Mr Parker's final medical board examination, dated 29 February 1968, was in evidence. Therein, Mr Parker's motor vehicle accident is noted and his consequential physical injuries are identified. The report makes no reference to any psychiatric condition.
Mr Parker made two claims prior to the one under consideration. These were on 17 April 1996 for “nervous disorder” and 13 May 2008 for “mental health”. In the former, Mr Parker relied on the effects of the motor vehicle accident as being responsible for his claimed condition. That was also the case with the latter claim although, in addition, he implicated the circumstance in the Ingleburn hospital.
In evidence was a letter, dated 31 January 2000, written by Stephen Routh, from Sparke Helmore Solicitors, to Mr S P Durley in which he requested information relating to Mr Parker's motor vehicle accident and subsequent treatment. In response, Mr Durley identified a record of treatment from 1973 for alcoholism but provided no references to the circumstance in the hospital during Mr Parker's time there in 1967 as a patient. The respondent also engaged the services of Quantum Investigations (NSW) Pty Limited to report on the circumstances of Mr Parker's motor vehicle accident in 1967. The report, dated 3 May 2000, provided photographs of the accident scene but advised that enquiries with the NSW Police and Ambulance Service were not fruitful as their records of events in 1967 were no longer available.
An affidavit, dated 18 April 2002, was in evidence from Michael Snell who, at that time, was a partner in the law firm Sparke Helmore Solicitors. He reported speaking with a Comcare officer and concluded that the respondent would be severely prejudiced in conducting investigations about the matters asserted by Mr Parker as having occurred in 1967 because of the length of time that has elapsed.
SUBMISSIONS
Mr Parker submitted that he had been unaware of his right to make a claim in relation to injuries or diseases that were related to his Army service until 1996 and that he lodged his claim shortly thereafter. He expressed disappointment that, in earlier Tribunal hearings, the respondent had denied the presence of repatriated Vietnam veterans in the Ingleburn Hospital. He submitted that, even though posttraumatic stress disorder had not been diagnosed, he believed that he suffered from the condition and that it was related to his stay in the Ingleburn Hospital.
Mr Black, for the respondent, conceded that Vietnam veterans were present in the same ward as Mr Parker while he was in Ingleburn Hospital. He submitted that Mr Parker, on his own evidence, was aware of some psychiatric debility while he was serving in the army and in the immediate post service years. He submitted that a notice of that should have been given at that time and a claim made shortly thereafter in order to comply with s 16 of the Act. He submitted that Mr Parker's failure to give notice and to make a claim until 1997 greatly prejudiced the respondent in being able to investigate the circumstances relied upon by Mr Parker. He submitted that this was compounded by Mr Parker's uncertain memory of the events of 1967; the lack of opportunity to have Mr Parker psychologically examined close to the time of this hospitalisation or in his immediate post-service years; the absence of medical records; and the absence of and the difficulties associated with locating any witnesses after so many years. Mr Black 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”[4]. Mr Black also submitted that the delay by Mr Parker was due to his ignorance of the claiming process and that this did not amount to a mistake or other reasonable cause for accepting his claim.
[4] Citing Re Muras and Department of Defence (1998) 52 ALD 579.
CONSIDERATION
Mr Parker did not give notice of the relevance of the circumstances at the Ingleburn Hospital as being causally related to a psychiatric condition until he made a claim in 2008. In the previous claim in 1996, he had related claimed conditions to the motor vehicle accident in 1967. That focus by him is significant in that, under s 16(2) of the Act, the notice must include particulars, in ordinary language, of the cause of the injury and the time when it happened. His notice of the situation in the hospital ward was more than 40 years after he was hospitalised. Mr Parker's first claim for a psychiatric condition was made in 1996, some 30 years after he was hospitalised. Neither of those time-frames meets the requirements of s 16(1) of the Act.
Under s 16(4) of the Act, for the purposes of s 16(1) thereof, it would be sufficient for a disease, such as posttraumatic stress disorder, 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 disease. I accept as correct the submissions made by Mr Black that, on Mr Parker's evidence, he was experiencing some forms of psychiatric symptoms both during his service and in the immediate post-service years. His thoughts and feelings are outlined above in his evidence. There was no diagnosis of posttraumatic stress disorder at that time. In order for me to make a finding that Mr Parker suffers from posttraumatic stress disorder, there would need to be a diagnosis of that condition. Mr Parker has not been so diagnosed. His belief that he has posttraumatic stress disorder comes from applying his understanding of the symptoms of the condition to himself. Mr Parker identified two psychiatrists that he saw in the mid-1990s but there is no evidence of any psychiatric diagnosis from them. In his reports from 2000, Dr Gregory Walsh, Mr Parker's treating doctor, described him as having, at that time anxiety, self-loathing and depression, but no elaboration of that is given by him. 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 a psychiatric condition.
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.[5] Similarly, the failure to make a timely claim will not prevent its consideration if that failure was occasioned by mistake or other reasonable cause.[6]
[5] See s 16(1)(b)(i) of the Act. The “absence from Australia” factor does not arise in this matter.
[6] See s 16(1)(b)(ii) of the Act. The “absence from Australia” factor does not arise in this matter.
Prejudice
In relation to the issue of prejudice to the respondent, I note the decision of the Tribunal in Re Tierney and Reserve Bank of Australia[7]. There, the following reference is made to the purpose of the notice requirement as it appears in s 53(1) of the 1988 Act, 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.
[7] (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. While his motor vehicle accident and period of hospitalisation is documented, there are no witness statements of support for Mr Parker's claim about the interchanges between him and the soldiers. His brother and the report from Ms Murray confirmed the presence of Vietnam evacuees in the Ingleburn Hospital. This was conceded by Mr Black. Also, while a list of patients at the hospital was provided by Mr Black, the evidence of Ms Murray was that members' individual medical files would be accessible only if the individual veterans were identified. Mr Parker has not identified any particular individual with whom he had dealings at the time. Access to those records may well reveal the nature of the injuries those veterans suffered but it would not provide detail of the interchanges Mr Parker had with them, including the requests described by Mr Parker at one stage as relating to the ending of their lives. In that regard, I have noted that varying accounts given by Mr Parker in relation to requests by hospital patients to end their lives[8].
[8] See para 5 (above).
Mr Parker's discharge medical report does not implicate any psychiatric condition at that time. Even if there were detailed records of the soldiers' injuries and treatment, I am satisfied that it is more probable than not that any such material would not reveal the kind of requests claimed by Mr Parker to have been made to him. The time taken by Mr Parker to give 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 more than 40 years after the incidents of causation are alleged to have occurred.
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.[9]
[9] See Secretary of Department of Veterans’ Affairs v Studdert [2001] FCA 1642 at [11] per Moore J and Bedford v 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 1996. 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[10] by North J who described the relevant authority 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.
[10] (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.
I am satisfied that Mr Parker's failure to give notice and to make his claim in a timely manner was because he was ignorant of his right to do so.
As to other reasonable cause for late lodgement, the matter raised by Mr Parker was that he understood that he was not permitted to reveal information about his service because of the Official Secrets Act as set out in his Certificate of Discharge. As I read it, the only matters embraced by that injunction are those that might be useful to the enemy in War. I am satisfied that it would not be reasonable to conclude that information about the events in the hospital ward at Ingleburn meet that requirement. I am 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 claim for his disease 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 claim for posttraumatic stress disorder may not be admitted under s 16 of Commonwealth Employees’ Compensation Act 1930 (Cth).
I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.
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Associate
Dated 25 September 2012
Date of hearing 4 September 2012 Applicant In person Counsel for the Respondent Matt Black Solicitors for the Respondent Kate Slack, Sparke Helmore
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