Gualano and Comcare
[2006] AATA 154
•23 February 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 154
ADMINISTRATIVE APPEALS TRIBUNAL N° V2004/792
GENERAL ADMINISTRATIVE DIVISION
Re: VITTORIO GUALANO
Applicant
And: COMCARE
Respondent
INTERLOCUTORY
Tribunal: Miss E.A. Shanahan, Member
Date:23 February 2006
Place:Melbourne
Decision: The Tribunal determines as follows:
1.the date of initial injury, namely the fall on the way to work, occurred on 15 June 1972;
2.the applicable legislation is the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) and the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act);
3.Mr Gualano did give notice of the injury sustained on 15 June 1972; and
4.on the evidence to date, Mr Gualano’s claim for compensation is not inadmissible by reason of s 124 of the SRC Act or by s 53 and s 54 of the 1971 Act.
(sgd) E.A. Shanahan
Member
compensation – injury claimed to have occurred in 1971 or 1972 – formal claim for compensation lodged in 2003 – exact date of injury – the question of which of the Commonwealth Compensation Acts applies namely 1930 or 1971 Act – whether notice given and claim made within the relevant timeframes – prejudice to the Commonwealth – reasonable cause.
Safety, Rehabilitation and Compensation Act 1988
Compensation (Commonwealth Government Employees) Act 1971
Murray v Baxter and Others (1914) 18 CLR 622
Quinlivan v Portland Harbour Trust [1963] VR 25
Black v City of South Melbourne [1963] VR 34
Re Tierney and Reserve Bank of Australia (1988)15 ALD 534Re Willis and Australian Telecommunications Commission and Commonwealth of Australia (N°2) (1990) 19 ALD 677
Windshuttle v Deputy Federal Commissioner of Taxation (1993) 46 FCR 235
Banks v Comcare Australia,Federal Court, 22 May 1996, QG118/1994
Re Loft and Comcare (1996) 52 ALD 606
Telstra Corporation Ltd v Roycroft (1997) 77 FCR 358
Re Scutts and Department of Defence AAT 13085, 10 July 1998, 527/1998
Re Muras and Department of Defence (1998) 52 ALD 579
Comcare v Luck (1999) 29 AAR 403
Re Quinn and Comcare [1999] AATA 607
Re Siemsen and Comcare [1999] AATA 871Re Toholka and Comcare [1999] AATA 947
REASONS FOR INTERLOCUTORY DECISION
23 February 2006 Miss E.A. Shanahan, Member
1. On the completion of the applicant’s oral evidence on 13 September 2005, the Tribunal was requested to make decisions with written reasons, relating to several threshold points. Submissions on these threshold points were made by counsel for both parties on 20 October 2005.
2. The threshold points include the date of the alleged injury suffered by the applicant and, as a corollary, which Act in accordance with the transitional provisions of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) is attracted; whether or not notice of the injury was given; whether a claim was made within the relevant Act’s time frame and if not, whether there existed “reasonable cause” to negate the prejudice to the Commonwealth.
3. Mr Vittorio Gualano signed a claim for compensation form on 27 March 2003 alleging a right shoulder injury causing limited movement due to severe rotator cuff pathology. He related this condition to an injury which he stated was sustained in 1971. In his evidence before the Tribunal, and in the histories he has given to various medical specialists over several years, it is apparent that Mr Gualano cannot recall the exact date. In fact he is uncertain as to whether the injury occurred in 1971 or 1972. In his evidence before the Tribunal Mr Gualano confirmed that he commenced working at the Commonwealth Government Ordnance Factory, Maribyrnong (the ordnance factory) on 11 March 1970 as a press operator. Mr Gualano was transferred to the press metal section in 1971. With respect to the date of the injury, he believed that it was some two years or eighteen months after he commenced work at the ordnance factory. He could recall that the fall occurred in mid‑winter as he normally left for work at that time of the year at approximately 6.30‑6.45am, in order to start at 7.30am. Mr Gualano said that the accident happened when he exited through his front gate and the right leg of his pants was caught on a wooden peg placed by council workers who were preparing to lay a new concrete path. Being unaware that his pants leg was caught on the post he moved forward, fell and landed on his outstretched right hand and then hit his chest and abdomen on the footpath and road. His evidence was that this accident was witnessed by council workers replacing the footpath. He spoke with the council workers but their conversation is not relevant to this decision. Mr Gualano returned to his home to change his clothing. He was uncertain whether he then saw his doctor, Dr H. Poulier, before attending the workplace at 10am or whether he saw Dr Poulier after he reported his accident at work at about 10am. At this time Mr Gualano was not suffering from any pain and continued to perform his normal duties on that day. At about 4pm he noted pain in his shoulder and overnight this became far more severe. He states that the next morning he went into work at 10am in order to explain to the boss what had happened. Mr Gualano knew the foreman only by his first name “Dick”, and Dick informed him that the accident had to be reported to the manager of the section. Mr Gualano refers to the section manager as “the big boss.” Inquiries made by the solicitors for the respondent identified the section manager as a Mr Cameron Thompson. Mr Thompson is now retired and living in Italy. Mr Thompson was contacted by the respondent’s solicitors, and although he could not recall the event, Mr Thompson did have a vague recollection of Mr Gualano by name. Mr Thompson confirmed that the foreman, Mr Richard Vaughan (Dick), was deceased. Mr Gualano’s evidence was that he did see the big boss and was directed to fill out some forms for insurance purposes. The boss actually filled out the forms as Mr Gualano does not write in English. The boss recommended that a witness report be obtained from Mr G. O’Donohue, a neighbour of Mr Gualano who had tended to him after the fall. Mr Gualano was given the impression that these forms had to be completed for insurance purposes. Mr Gualano obtained a written statement from his neighbour, Mr O’Donohue, which he says was attached to the form completed by his manager. Mr Gualano said that he had seen Dr H. Poulier the day after the fall and he prescribed medication. He also attended the factory doctor. While he continued to suffer pain in relation to his right shoulder he was able to work and benefited from the prescribed medication. Mr Gualano did not loose any work time except for the day after the fall. He noted that his pay was docked for one day which lead him to enquire and complain as to why this had occurred. Some three or four weeks after the event this loss of pay was corrected and Mr Gualano had assumed that this was paid by the employer’s insurer.
4. Given the 32‑year effluxion of time between the claimed injury and the lodging of a claim form in 2003, the respondent has had considerable difficulty in obtaining records relating to 1971 and 1972, particularly as the applicant had accepted a voluntary redundancy package in 1989, prior to the ordnance factory closing in 1994‑1995. It was not until 28 June 2005 that the respondent’s solicitors advised they had located medical notes regarding the applicant from the Commonwealth Department of Health. The respondent attributes these medical reports to a Dr Hazel Y. Halse (Exhibit R13). The respondent has not been able to contact Dr Halse. The Tribunal disagrees that these medical reports are exclusively provided by Dr Halse, although the majority of entries are. The Tribunal makes no claim to be an expert in handwriting but has compared the entries and the applicant’s medical records (Exhibit R17) with a signed superannuation health assessment by Dr Halse. The entries of 17 April 1970 and 8 June 1970 appear to the Tribunal to be in the handwriting of Dr Halse. The next entry is dated 16 June 1970 and the handwriting is totally different. This entry states:
yesterday morning he stumbled and fell on way to work. Has an abrasion on Rt shin – no dressing required. He also c/o painful Rt shoulder and holds it stiffly but in fact has good movement. Has been to Dr and got B.T.Z [this is the anti‑inflammatory drug butazoladine] insists on x‑ray…
The next entry is in different handwriting which bears great similarity to that of Dr Halse and states:
…Result: N.A.D.. For passive exercise with gravity assistance. Probably has a minimal discomfort from old fibrositis (1970) and all injuries in future will involve Rt shoulder.
The next entry is dated 29 June 1972. It states:
Went home after seeing Dr Presko – had certificate from own doctor for this day. Claims still has some pain at end of day and is still taking B.T.Z.
It thus appears to the Tribunal that Mr Gualano was initially seen by a Dr Presko, who ordered an x‑ray of the right shoulder, and the report of this x‑ray was subsequently received and commented on by Dr Halse. The Tribunal Member, having been a medical practitioner for over 40 years, is aware that the turnaround time between x‑rays being performed and the result being received by the requesting practitioner was, in 1971, anything from two to four days. It is unfortunate that the recording of the dates of consultation by the factory medical officer have been of doubtful accuracy and that the consultations and opinions have not been signed. Mr Gualano’s sick leave records (Exhibit R15) show that he was absent from work for 2 hours and 24 minutes on 16 June 1972. The remarks column states “SKINNED LEFT SHIN/STR. R SHOULDER,” the abbreviation ‘STR’ is taken to mean strained. These dates reflect the day and month of the consultation in the medical record, although the year is stated as 1970 in the letter. The Tribunal believes this to be an error given that a review was conducted on 29 June 1972 and the nature of the comments attached to that review.
DATE OF INJURY
5. The Tribunal determines that the date of initial injury, namely the fall on the way to work, occurred on 15 June 1972. The Tribunal is aware that the subject of the differences in handwriting was not raised by the parties nor noted by the Tribunal in the course of the hearing on 12 and 13 September 2005. The Tribunal has only noted this discrepancy in the preparation of this decision. The parties are invited to comment on the Tribunal’s interpretation of the ordinance factory medical records.
RELEVANT LEGISLATION
6. Given the Tribunal’s decision that the date of injury claimed to have resulted in Mr Gualano’s current right rotator cuff syndrome is 15 June 1972, the applicable legislation is the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) and the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act).
THE GIVING OF NOTICE
7. Section 53 of the 1971 Act states:
53. (1) This Act does not apply in relation to an injury caused to an employee unless notice in writing of the injury was served, as prescribed, on the Commonwealth-
(a)as soon as practicable after the occurrence of the injury;
(b)if the employee was not, immediately after the injury, aware that he had sustained an injury-as soon as practicable after he became so aware; or
(c)if the employee died without having become so aware or before it was practicable to serve such a notice-as soon as practicable after his death.
…
(4) Where-
(a)a notice purporting to be a notice referred to in a preceding sub-section of this section has been served on the Commonwealth;
(b)the notice, as regards the time of service or otherwise, failed to comply with the requirements of that sub-section; and
(c)the Commonwealth would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause, the notice shall be deemed to have been served in accordance with that sub-section.
8. Mr Gualano has given evidence that he spoke with his foreman, known to him only as “Dick”, the day following his injury, which on the Tribunal’s determination would be 16 June 1972. The foreman instructed him that the matter had to be referred to the big boss (at transcript page 27), now identified as Mr Cameron Thompson. The big boss informed Mr Gualano that forms had to be filled out to be sent for insurance purposes. It would appear the big boss filled out the forms as Mr Gualano could not write in English. He was also instructed to obtain a statement from his neighbour Mr O’Donohue, who had witnessed the fall. When Mr Gualano noted that he had a day’s pay missing he discussed this with Dick, who re‑assured him that he was covered, having filled out the necessary forms which had been sent to the insurance company (at transcript page 28). Mr Gualano did obtain a statement from his neighbour and gave this to his employer. Mr Gualano was subsequently paid for the day off work. At the time of the injury Mr Gualano had no experience with the workers’ compensation system. He had worked for Nestle from 1954 to 1967 in Tongala and from 1967 to 1969 in Flemington. He had then worked for a period of eight months as a process worker with Flexi‑Drive in Ascot Vale, before he commenced employment with the ordinance factory on 11 March 1970. Throughout that entire period he had not suffered any injuries or submitted any workers’ compensation claims and was thus not familiar with the workers’ compensation system. Mr Gualano reported his injury on the following day and also saw the ordinance factory’s medical practitioner. Subsequently a form was completed; a form which he took to amount to notice and a claim form. Mr Noonan, the respondent’s solicitor, in his affidavit of 8 September 2005 (Exhibit R12) attested that he had made inquiries of a Mr Bryan Downes, who was the head of the forge section of the ordinance factory, with respect to the procedure in place for the reporting of an injury. Mr Downes advised that an employee was required to complete an accident report which the foreman counter‑signed. The employee then attended the casualty section for examination or/and treatment by the medical officer. Mr Downes does not refer to a requirement that a manager was responsible for the lodging of notice and claim forms. As stated above, Mr Thompson, the manager of the section concerned at the time of Mr Gualano’s accident, has no recollection of the events.
9. Mr Gualano’s evidence before the Tribunal was that following the injury, he suffered considerable pain in his right shoulder to the extent that it disturbed his sleep and prevented him from sleeping on his right side. He said that with the treatment prescribed which appears to be only butazolodine, he did improve and was able to continue working full‑time. Given the improvement in his symptoms he did not pursue his claim. Whether the forms completed by Mr Gualano’s section manager were merely an accident report or were a notice of injury and a claim form, Mr Gualano was of the belief that his manager, on his behalf, had completed all the necessary documentation relating to his fall. At the time he had no knowledge of the relevant compensation legislation or his rights under that legislation and appears to have merely followed instructions without understanding their relevance. The Tribunal notes that Mr Gualano left school at the age of 12, after completing primary education only, and that while he can read and write in Italian he cannot read and write with any fluency in English. On the, albeit slim, evidence before it the Tribunal determines that Mr Gualano did give notice of the injury sustained on 15 June 1972 and believed that he had submitted a claim form within the 6‑month period. As the records of the ordinance factory are no longer available, and as Mr Gualano’s foreman, Mr Vaughan, is deceased, as are several of the sectional managers of the ordinance factory, there is no way of verifying the applicant’s claim with respect to notice and lodgement of a claim form, nor is there any way of negating his oral evidence before the Tribunal.
10. Mr M. Cujeticanin, counsel for Mr Gualano, submitted that the evidence indicated that Mr Gualano had given notice and lodged a claim form; unless the entire story regarding the big boss filling out the forms for insurance purposes, requiring a witness statement and the subsequent receipt of payment for a day’s loss of wages was all an “utter contrivance”. Whether by mistake or ignorance, Mr Gualano believed these forms had been completed and relied on the representations made by the boss (at transcript page133). The applicant conceded that the respondent was prejudiced by the delay, the death of Mr Vaughan, the loss of medical records and the paucity or absence of the ordinance factories’ records (at transcript page 140). Ms A. McMahon, for the respondent submitted that there was no evidence that formal notice was given and that the forms referred to were in the nature of an incident report.
11. The Tribunal accepts Mr Gualano’s evidence that he believed all necessary forms had been completed by his big boss, a person senior to his foreman: and that he relied upon this representation. Even if a formal notice of injury was not lodged and Mr Gualano was mistaken in believing the forms completed on his behalf constituted notice, the Tribunal deems that notice was given.
THE REQUIREMENT TO LODGE A CLAIM FOR COMPENSATION WITHIN SIX MONTHS OF THE INJURY
12. Section 54 of the 1971 Act provides that:
54. (1) Compensation in relation to an employee is not payable under this Act to a person unless a claim in writing for the compensation was served, as prescribed, on the Commissioner by or on behalf of the person within the prescribed period.
…
(2) If the claimant is the employee, the prescribed period for the purposes
of the last preceding sub-section is-
(a)in the case of a claim in relation to an injury to the claimant-
(i) the period of six months commencing on the day of the injury; or
(ii)if the claimant was not, immediately after the injury, aware that he had sustained an injury-the period of six months commencing on the day on which he became so aware;
(b)in the case of a claim in relation to a disease contracted, or an aggravation, acceleration or recurrence of a disease suffered, by the claimant-the period of six months commencing on the day on which the claimant became aware of the contraction of the disease, of the commencement of the aggravation or acceleration of the disease or of the recurrence of the disease; or
(c)in the case of a claim in relation to loss of, or damage to, an artificial limb or other artificial substitute, or a medical, surgical or other similar aid or appliance, used by the claimant, being a loss or damage that arose in circumstances referred to in section 28-
(i)the period of six months commencing on the day of the occurrence of the accident that resulted in the loss or damage; or
(ii)if the claimant was not, immediately after the accident, aware that the accident had resulted in the loss or damage-the period of six months commencing on the day on which he became so aware.
…
(5) If the claimant is a person to whom the compensation is payable by virtue of paragraph (b) or paragraph (c) of sub-section (5), or sub-section (9), of section 37 or by virtue of section 44, the prescribed period for the purposes of sub-section (1) of this section is the period of six months commencing on the day on which the liability to pay the cost to which the claim relates arose, or on which the expenditure to which the claim relates was incurred, as the case may be.
…
(6) Where-
(a)a claim purporting to be a claim referred to in sub-section (1) has been served on the Commissioner;
(b)the claim, as regards the time or manner of service, failed to comply with the requirements of that sub-section; and
(c)the Commonwealth would not, by reason of the failure, be prejudiced if the claim were treated as a sufficient claim, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause, the claim shall be deemed to have been served in accordance with that sub-section.
13. Mr Gualano’s evidence with respect to both notice and the submission of the claim form within six months of the injury are in effect the same. He states he followed the instructions given to him by his foreman and the manager of his section and that he believed that a claim form had been lodged. There was no evidence to corroborate this claim.
14. Section 53 of the 1971 Act provides as follows:
53. (1) This Act does not apply in relation to an injury caused to an employee unless notice in writing of the injury was served, as prescribed, on the Commonwealth-
(a) as soon as practicable after the occurrence of the injury;
(b)f the employee was not, immediately after the injury, aware that he had sustained an injury-as soon as practicable after he became so aware; or
(c)if the employee died without having become so aware or before it was practicable to serve such a notice-as soon as practicable after his death.
…
15. The submissions of the respondent and the applicant on this issue were essentially the same as those relating to the giving of notice, although Ms McMahon, for the respondent, detailed the legislation, the relevant precedents, Mr Gualano’s medical and sick leave history and his workers’ compensation claim history. The latter related to claims made from November 1986 to March 2003.
16. On the evidence to date, the Tribunal determines that Mr Gualano firmly believes that he lodged a claim form within a few days of his fall on 15 June 1972. In his statement of 16 August 1989 (Exhibit A1), which the Tribunal notes is unsigned and believes was provided to Rennick and Gaynor, solicitors, Mr Gualano states “…In 1971, I had a claim after a fall at work where I injured my right shoulder. I had one day off work but did not take any common law action”.
17. The applicant has conceded that the Commonwealth has suffered prejudice and thus the Tribunal is directed by the SRC Act to address any reasonable cause to negate the effect of this prejudice. If in fact Mr Gualano did not complete a formal claim form, he is deemed to have done so by relying on the representations of his foreman Dick and the big boss, Mr Thomson (Exhibit R12). In this instance, Mr Gualano is found to be mistaken as to the representations of the respondent’s employees.
18. While none of the legal precedents cited by the parties have the same facts as this application, the Tribunal has followed the reasoning of North J in Telstra Corporation Ltd v Roycroft (1977) 77 FCR 358 on the meaning of ignorance and mistake. Having analysed several authorities, his Honour said at 367:
…
As these authorities show, there is a thin line between “mistake” and “ignorance”. 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…
19. Ms McMahon, in her submissions dealt at length with Mr Gualano’s medical history. These were not primarily relevant to the Tribunal’s decision on the threshold questions but are very relevant to any further consideration of the application.
20. The medical evidence, contained in the various exhibits and the documents filed in accordance with s37 of the Administrative Appeals Tribunal Act 1975 (T‑documents), suggests that Mr Gualano first reported pain and limitation of movement in the right shoulder in or about 1998 (Report of Dr B. McClure of 28 April 2005, Exhibit A2) in 1997 on the history given to Mr Charles Flanc and reported in his letter dated 30 April 2002 (Exhibit R6), in 1995 on the history obtained at the Essendon and District Memorial Hospital (Exhibit R5), in 1995 in the history obtained by Mr M. Khan and described by him as “a vague pain in the top of his right shoulder” (Report dated 25 July 1995) and in the late 1980s on the history obtained by Mr M. Shannon in 2005 (Exhibit R7). The first investigative evidence of right shoulder disease was the ultrasound examination of both shoulders on 6 April 1995 (Exhibit R10), at a time when Mr Gualano complained of left shoulder pain. This ultrasound revealed supraspinatus tendinopathy with impingement in the left shoulder and early tendinopathy on the right. Of a total of ten reporting doctors, five refer to right shoulder pain and four have provided a report of their examination findings with respect to the right shoulder. In 1996, Dr Lim (Exhibit R5) recorded a full range of movement in both shoulders. Mr Flanc on 30 April 2002 (Exhibit R6) recorded 130 degrees of flexion of the right shoulder (further flexion being limited by pain at the top of the shoulder and in the chest), abduction of 100 degrees and external rotation of 40 degrees. While Dr McClure’s report of 28 April 2005 (Exhibit A2) states that there was a severe generalized reduction in the range of movement of the right shoulder, there are no such examination findings in Dr McClure’s clinical notes (Exhibit R2). Mr Shannon found a moderate restriction of the movement of the right shoulder but no definite impingement (Exhibit R7).
21. In his evidence before the Tribunal, Mr Gualano insisted that he has experienced pain in his right shoulder and to a lesser degree in his left shoulder, since the fall of 1972. His pain has fluctuated in severity and has responded to medication with anti‑inflammatory drugs until recent years when it became more constant and severe. He claims (at transcript page 70) that he did not seek work after his voluntary retrenchment in 1989 because of the severity of his shoulder symptoms; and that he had complained of right shoulder pain to his treating general practitioners, Drs Poulier and McClure, repeatedly, but had been told this symptom was part of his back complaint (at transcript page 42).
22. The Tribunal asked Mr Gualano to stand in the witness box and point to the site of his long‑standing pain. He did so and indicated that the pain was halfway down the lateral border of his right scapula (shoulder‑blade). He described it as halfway down the blade (at transcript page 102). The Tribunal interpreted this as being at the lateral border of the latissimus dorsi muscle, halfway down the lateral border of the right scapula (at transcript page102). This point is some 18‑20 cm from the ‘tip of the shoulder’ to which several medical practitioners have localised his pain and a similar distance from the supraspinatus tendon which has been shown to be diseased and attributed by radiologists and other medical practitioners as the cause of a rotator cuff syndrome. The Tribunal has consulted Gray’s Anatomy (36th ed,1980), 359 on the anatomy of the shoulder. Gray’s defines the shoulder joint as the articulation between the head of the humerus and the glenoid fossa of the scapula. Latissimus dorsi is described as a muscle of the arm, not the shoulder; although it has an action in stabilising the scapula in certain movements of the shoulder joint.
23. On the evidence before it, the Tribunal has some difficulty in correlating the applicant’s pain with the demonstrated supraspinatus tendinopathy. Further orthopaedic surgical evidence is required to elucidate this apparent conflict, should Mr Gualano decide to proceed with his application. The Tribunal notes that Mr Flanc and Mr Shannon had difficulty obtaining a medical history because of language problems. Mr Gualano was also described as being a poor historian by Dr Poulier (Exhibit R1). Any further opinion sought should be facilitated by the provision of an interpreter other than Mrs Gualano.
24. The Tribunal decides that on the evidence to date, Mr Gualano’s claim for compensation is not inadmissible by reason of s 124 of the SRC Act or by s53 and s 54 of the 1971 Act.
25. In accordance with s 67 of the SRC Act, costs will flow with the final decision. The Tribunal does note both parties’ submissions with respect to costs.
26. Should this matter proceed to a resumed hearing further medical evidence will be required to resolve conflicting medical date. The applicant will also need to be recalled to further elucidate his conflicting evidence of the symptomatology relating to his claimed condition.
I certify that the twenty‑six [26] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E.A. Shanahan, Member
(sgd) Olympia Sarrinikolaou
ClerkDates of Hearing: 12‑13 September 2005 and 20 October 2005
Date of Interlocutory Decision: 23 February 2006
Counsel for the applicant: Mr M. Cujeticanin
Solicitor for the applicant: Mulcahy Mendelson and RoundCounsel for the respondent: Ms A. McMahon
Solicitor for the respondent: Sparke Helmore
1
5
0