FW: Folkes and Military Rehabilitation and Compensation Commission
[2004] AATA 1133
•28 October 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1133
ADMINISTRATIVE APPEALS TRIBUNAL )
) NoQ2004/299-02
GENERAL ADMINISTRATIVE DIVISION ) Re BERNARD FOLKES Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Ms MJ Carstairs, Member Date28 October 2004
PlaceBrisbane
Decision The Tribunal affirms the decisions under review.
......[Sgd].......
MJ Carstairs
Member
CATCHWORDS
COMPENSATION – injuries occurring prior to commencement of Safety Rehabilitation and Compensation Act 1988 – transitional provision – notice of injury not given as soon as practicable under Commonwealth Employees Compensation Act 1930 – Commonwealth prejudiced by want of notice – failure to make claim within specified period due to ignorance
Safety Rehabilitation and Compensation Act 1988
Commonwealth Employees Compensation Act 1930
Telstra Corporation v Roycroft (1997) FCA 774
Re Blunden and Comcare [2003] AATA 957REASONS FOR DECISION
29 October 2004 Ms MJ Carstairs, Member 1. This is an application by Bernard Folkes (the applicant) for review of decisions made by the respondent on 10 June 2003, 17 June 2003, and 27 June 2003. The delegate affirmed the respondent’s determinations dated 7 March 2003, 20 February 2003 and 24 February 2003 to refuse the applicant’s claim for compensation for a reflux condition, obesity condition, hiatus hernia/peptic ulcer condition and hypertension.
2. The application for review was heard by the Tribunal on 27 October 2004. On 28 October 2004, the Tribunal gave an oral decision in the matter, affirming the decisions under review. The applicant requested that the Tribunal provide written reasons for its oral decision, pursuant to section 43(2A) of the Administrative Appeals Tribunal Act 1975. The following are those reasons.
3. At the hearing to consider the question of whether the applicant complied with s16(1) of the Commonwealth Employees Compensation Act 1930 (the 1930 Act) the applicant was represented by Mr E Hodikan, an advocate with the Returned Servicemen’s League. The respondent was represented by Mr C Clark of counsel instructed by Sparke Helmore solicitors.
4. The Tribunal had before it the four bundles of documents lodged under s37 of the Administrative Appeals Tribunal Act 1975, as well as exhibits A1-A2 for the applicant and R1 for the respondent. The Tribunal also had before it the respondent’s Statement of Facts and Contentions dated 6 September 2004.
BACKGROUND
5. The applicant was born on 12 February 1949. He enlisted in the Royal Australian Navy on 11 July 1965 and was discharged on 22 May 1974.
6. On 30 January 2003, the applicant lodged four compensations claim forms, for reflux (T9), obesity (T18) hiatus hernia and peptic ulcer (T26) and hypertension (T34). All claims were rejected by both the original decision maker and by the reconsideration delegate. In regard the first three claimed conditions the reconsideration delegate decided that the claims could not be entertained, in part because they were made outside the time allowed under the legislation. In regard to the fourth condition, hypertension, the reconsideration delegate decided that the injury dated from 2001. At the hearing Mr Clark said that the decision of the reconsideration delegate was incorrect as to the date of the injury and that the claim for hypertension was also affected by the problem in regard to the time limits.
EVIDENCE
7. In a written statement dated 8 September 2004, the applicant stated that the first knowledge he had of his entitlement to make a claim was when he met with officers of the Returned Servicemen’s League in 2001. He stated that he did not recall receiving any information at his discharge, or at any other time, noting that his discharge medical was hastily undertaken and he was very keen to have the process complete and leave the service. He stated that he had refused to sign the medical and as a result he did not see the small print referring to compensation (Exhibit A2). The applicant was taken in cross-examination to his signature on another form that was part of his discharge medical papers, where the question was asked have you made a claim under the Repatriation or C.E.C Acts and have you been granted any pension or compensation? The applicant said that he would not have known what the reference to “C.E.C Act” meant.
8. The applicant gave oral evidence about his service and medical conditions which arose during the time of his service including a queried hiatus hernia and indigestion in 1969. He was taken in cross examination to his first medical examination a fortnight after he enlisted at the age of sixteen, in which it was noted is overweight by at least 1 stone and has been gaining in weight. The applicant said that his blood pressure was an issue throughout his time in the navy.
9. In a statement dated 25 October 2004 (Exhibit R1), Mr P Ontong, Director, Reconsiderations and Appeals of the Department of Veterans' Affairs, stated that the applicant’s delay in lodging his claims for reflux condition, obesity condition, hiatus hernia/peptic ulcer condition, and hypertension had prejudiced the respondent, because no incident report had been lodged, there was no opportunity to medically examine the applicant during or soon after his service in 1974 and it was unlikely that Navy doctors would now recall the applicant or his conditions some thirty years later.
CONSIDERATION OF THE ISSUES
10. Under the transitional provisions of the Safety Rehabilitation and Compensation Act 1988 (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(2)(b) of the 1988 Act refers to the 1930 Act. Section 124(10) of the 1988 Act provides:
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.
11. In his claims the applicant referred to noticing his injury during his service:
§ Reflux - 27 October 1969 reported to sick bay HMAS Cerberus
§ Hiatus hernia/peptic ulcer - 21 August 1969 reported to sick bay
§ Obesity - 17 November 1970 reported to sick bay HMAS Parramatta
§ Hypertension - December 1970 reported to sick bay HMAS Parramatta
12. The Tribunal was satisfied that all these claims fall under the 1930 Act. The timeframe for giving the notice of and for making a claim for the injury was set out in sub-section 16(1) of the 1930 Act as follows:
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. …
13. Sections 16(2) and (3) set out in detail that proper notice must provide the particulars of the injury and its cause expressed in ordinary language, and must be served to the authorised persons. The issue for the Tribunal is whether the applicant meets the requirements of s16 of the 1930 Act. If he cannot meet the requirements of s16 his claim cannot be considered under the legislation.
14. Mr Hodikan submitted that the Federal Court had pointed out in Tesltra Corporation v Roycroft [1997] FCA 774 there is a thin like between mistake and ignorance. He submitted that the applicant was mistaken rather than ignorant about his rights. He further submitted that whilst there were issues of prejudice to the respondent the discretion should be exercised to extend time either because the applicant failed to claim as a result of mistake, or because the ground of other reasonable cause was made out.
15. Mr Hodikan 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 of certain of the medical conditions during his service which were the subject of evidence at the hearing.
16. Mr Clark referred to s16(1) of the 1930 Act and submitted that the applicant served no notice of the injury. He also said that the applicant did not meet the provisions of ss16(2) or (3) dealing with the requirement that notice be in writing and the method of service.
17. Mr Clark noted that the delay of nearly thirty 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 1974 and the date of the claim in order to establish the relationship, if any, between the applicant's medical condition and the circumstances of the events at the time the injuries were said to arise. He noted the difficulty in locating medical practitioners who treated the applicant during his Navy service, and said that, even if they could be located, they would be unlikely to recall treatment and events up to thirty years ago.
18. 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. Mr Clark submitted that while the applicant was ignorant of his obligation to give notice of injury, there was no mistake (Telstra Corporation v Roycroft) and that the ground of absence from Australia was not raised.
19. Mr Clark 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. Mr Clark referred the Tribunal generally to the decision in Re Blunden and Comcare [2003] AATA 957.
20. In reaching its decision, the Tribunal takes into account the written and oral evidence and submissions made at the hearing. The Tribunal accepts that the applicant has had continuing problems over many years arising from the claimed medical conditions, particularly obesity, reflux and hiatus hernia/peptic ulcer, and that further treatment will be needed. The Tribunal also accepts the applicant's evidence that his real concern in making the claim is to obtain assistance with ongoing medical costs.
21. The Tribunal accepts Mr Ontong's evidence that the respondent would be prejudiced by not being able to properly investigate the circumstances of the conditions and the causes to which the applicant now attributes his conditions.
22. The Tribunal was satisfied that where there are entries in medical records which might suggest a temporal relationship between the conditions now claimed (the reflux, hiatus hernia/peptic ulcer and obesity) and the period of service, the compensation legislation requires more than that. In regard to obesity although the applicant was at pains to point out that the first medical report in evidence was after he joined up, it was clear from the entry by a medical practitioner commenting on this issue in regard to a then sixteen year old serviceman, that the applicant had obesity problems from a young age.
23. Further, and more importantly for present purposes, these entries do not constitute notice for the purpose of s16. It has to be taken into account that medical treatment is provided to service personnel and it is not simply a matter that an entry of a medical examination will constitute the notice that is required by s16 of the 1930 Act. The Tribunal finds that the first time that the applicant complied with the requirements of giving notice was when he filed his claim forms in 2003.
24. The Tribunal takes into account that the applicant had gastric and other troubles during his service and that for many years he simply put up with the problems and self medicated to relieve symptoms. However, the delay of nearly 30 years in lodgement of the claim has deprived the respondent of any reasonable possibility of carrying out appropriate medical examinations, or to gather other information from contemporary sources that would establish the relationship, if any, between the applicant's conditions and the circumstances of his service. As the applicant sought little treatment after service but either stoically put up with his medical conditions or managed them as best he could this also makes the claim harder for the respondent to investigate.
25. The difficulty overall is that medical and other service personnel would have little ability to recall any of these 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.
26. In relation to mistake, the Tribunal accepted the submission that s16 of the 1930 Act recognises only mistake and not ignorance and that Federal Court decision in Telstra v Roycroft deals with the nature of this distinction:
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.
27. The Tribunal was satisfied on the evidence given orally and in writing that the applicant was ignorant of, not mistaken, about his rights to compensation. His evidence that he did not know what the “CEC Act” was, and that he did not read the small print on the forms and first came to learn of any provisions in 2001 from RSL contacts. There was no evidence led that he acted from mistake within the meanings set out in Telstra V Roycoft.
28. As to any other reasonable cause, the Tribunal accepts that there must be a nexus between the reasonable cause and the delay, as discussed at par 30 of the Tribunal decision in Blunden. No clear submissions were put as to what would be the basis of reasonable cause in this case. The Tribunal took account of the evidence that after his service the applicant pursued a successful career, enjoyed advances in employment and in his educational achievements. There was no evidence that the applicant was not able to function well in the years after service, even though he may have been stoically putting up with a range of medical conditions. There was no reasonable cause for the applicant to wait for nearly thirty years before giving notice and lodging his claim for compensations
29. For these reasons the Tribunal finds that the reasons given by the applicant for failing to serve notice of the injuries as soon as practicable after they happened, or within six months of their 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 his first experiencing the medical conditions, at his discharge and later the applicant was not aware of his entitlement to claim compensation, there was no mistake or relevant absence from Australia. 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
30. The Tribunal affirms the decisions under review.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Ms MJ Carstairs, Member
Signed: S Oliver
Associate
Date of Hearing 27 October 2004
Date of Oral Decision 28 October 2004
Date of Written Reasons 29 October 2004For the Applicant Mr Hodikin, RSL Advocate
Counsel for the Respondent Mr Clark
Solicitor for the Respondent Sparke Helmore
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