Hatchman and Comcare
[2003] AATA 725
•1 August 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 725
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/120
GENERAL ADMINISTRATIVE DIVISION ) Re GEORGE HATCHMAN Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr R G Kenny, Member Date1 August 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
(Sgd) R G Kenny
Member
CATCHWORDS
WORKER’S COMPENSATION – claim for injury during military service –– whether notice of injury given as soon as practicable – whether claim made within the prescribed period - whether prejudice to respondent - whether any failure to give notice due to ignorance, mistake or other reasonable cause
Safety Rehabilitation and Compensation Act 1988 s 124
Compensation (Commonwealth Government Employees) Act 1971 ss 53, 54
Re Comcare and Luck (1999) 29 AAR 403
Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534
Re Willis and Australian Telecommunications Commission (1989) 19 ALD 665REASONS FOR DECISION
1 August 2003 Mr R G Kenny, Member Background
1. On 28 July 2001, George Hatchman (the applicant) completed a claim for rehabilitation and compensation for an injury which he described as a “back condition”. He stated in that form that the injury occurred in 1978.
2. On 8 October 2002, a delegate with the Military Compensation and Rehabilitation Service determined, in accordance with the terms of the Safety Rehabilitation and Compensation Act 1988 (the 1988 Act), that the claim should be disallowed and, on 11 December 2002, another delegate affirmed the initial decision. Following the granting of an extension of time for him to do so, the applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal). The matter is to be determined in accordance with the Administrative Appeals Tribunal Act 1975.
Appearances
3. The applicant was not represented at the hearing. Ms E Ford, of Counsel, appeared on behalf of Comcare (the respondent).
4. The following material was tendered and taken into evidence:
§exhibit 1 an affidavit, dated 11 July 2003, from Paul Ontong, Director of Appeals with the Military Compensation and Rehabilitation Service;
§exhibit 2 the documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents (T1–T21));
§exhibit 3 a letter, dated 6 February 2003, from John Percival;
§exhibit 4 a letter, dated 3 December 2002, by the applicant to the NSW Commissioner of Police and a response, dated 20 December 2002, from the NSW Police;
§exhibit 5 a medical report, undated, from the applicant’s treating doctor, Dr J Tankey;
§exhibit 6 a record of employment and task authorisations pertaining to the applicant for the period from November 1986 to June 1990;
§exhibit 7 an RAAF Personal Record pertaining to the applicant; and
§exhibit 8 a statement, dated 13 April 2003, from Christine Hatchman, the applicant’s wife.
Issues and Legislation
5. The issue for determination in this matter is whether or not the applicant has complied with the notice and claim requirements provided for under the relevant legislation. Pursuant to section 124 of the 1988 Act, the legislation which relates to the injury that occurred in 1978 is the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act) and, in order for that Act to apply, the notice and claim requirements in sections 53 and 54 of the 1971 Act must be satisfied. They read:
“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
…
53(4) Where:
(a)a notice purporting to be a notice referred to in a preceding subsection 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 subsection; 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 subsection.
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.
54(2) If the claimant is an employee, the prescribed period for the purposes of the last preceding subsection 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;
…
(6)Where:
(a)a claim purporting to be a claim referred to in subsection (1) of this section 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 subsection; 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 subsection.”
Applicant’s Evidence and Contentions
6. The applicant adopted the terms of a statement that he completed on 10 September 2002 (see PT 14). It reads:
“I, George Edward Hatchman, herewith declare that on an afternoon in February 1978, I sustained back injuries as a result of a bicycle accident on my way home from work at 2AD, RAAF Base, RICHMOND.
The accident occurred shortly after base stand-down time of 4.30pm, on the kerb side of Dight Street, Richmond, approximate half way between the intersections of Hobart and Andrew Streets (ref: Map 85 c4 – Sydney UBD).
I was riding my bicycle kerbside, inbound to Richmond township on the most direct route to my home at 9 Minchin Avenue, Hobartville (ref: Map 84 j9). A car overtook me from the rear, and the driver then proceeded to immediately turn left in front of me into the driveway of her home. In this careless action, she had suddenly cut-off my forward passage. I tried to avoid collision with her vehicle, but my forward momentum, and fast closing distance not allowing time for braking, caused me to impact with the vehicle’s front LH side. On impact, I was flung over the vehicle near the front windscreen, and landed heavily, head first then onto my back, on the footpath.
I was wearing a bicycle helmet, but I recall that I still tried to protect the top of my head with my hands. As a result of the impact, I was initially dazed and had difficulty with my stability. In all, I was fairly well ‘shaken up’ with concussion pain to my body, but this pain was diminished by the severe pain of my fingers, which had swollen with bursitis to a frightening size. I was helped to my feet by the female occupant of the car, who was profusely apologising for the incident. She then escorted me into her home to rest under her observation. No ambulance was called. When I regained a reasonable degree of composure and mobility, the lady drove me to the Richmond Police Station where the accident was reported. To my knowledge, no charges were laid against the driver, possibly for my consideration for her distraught concern and the assistance she had provided. I was also advised by the police that because an unregistered vehicle was involved (my bicycle), that the matter came under the jurisdiction of Local Government Ordinances and not the Police. I do recall that I requested that the matter be written up in the Police logbook at the time, however, I cannot confirm whether or not this was actually done. My bicycle was extensively damaged. My wife was contacted and duly arrived to take me back to RAAF Richmond for a medical check up and retrieve my bicycle on the way.
At medical, main concern focused on my swollen fingers which had ointment applied and bandaged. I had felt concussed and badly bruised with pain across my lower back and sore over my body in general, but I do not recall any x-rays or other detailed medical checkouts. I was a young man then, and even I most likely thought that I was ‘unbreakable’ and that all would heal itself in short time. Further concern was that of not being ‘downgraded’ in medical fitness, as this would compromise chances of operational attachments or postings. Also in that era, it was considered the ‘manly thing’ not to complain about pain and the concept of compensation claim was really not in our vocabulary. As the accident occurred off-base, submission of an accident report was not likely considered.
As servicemen, we have a responsibility to maintain our fitness level. I, like many others, chose to ride a bicycle to and from work as a method of achieving this (approximately 20 minutes each way). The authorities at RAAF Base Richmond in encouragement of this provided a rear perimeter gate access to Dight Street to provide a safer and shorter route to Richmond Township, away from mainstream traffic.
Post accident, the back pains and bruising subsided, but I was left with some localised residual ‘niggling’ pain in my lower back. Aggravation of this pain particularly occurred following heavy lifting or prolonged stooping forward. I recall the pain became acute during aerobic fitness exercises during my following posting at RAAF Wagga. It has lingered over the intervening years to the situation with my current age, that my mobility to lift and bend is now restricted and pain is experienced on a constant basis.
I have been a member of the RAAF Reserve Force since my discharge from the RAAF in 1990, and have also been mindful that my continued employment in the Reserves is subject to fitness capabilities. As I have not wanted to compromise my employment situation in any way, I was concerned that any mention of compensation would compromise my continued RAAF Reserve Staff Group (RSG) engagement. At 12th May this year, I reached Compulsory Retirement Age (CRA) at age of 55 years. I have successfully applied for a 2 year extension to CRA in RAAFRSG service, and at my re-engagement medical, I discussed the issue of my lower back injuries with examination doctor. My condition was accepted due to the non-active nature of my RSG duties.
Over time, my back condition has worsened to the state that it is in now. It has been an injury that I have ‘put up’ with given the nature of my employment. Now, in semi-retirement, I find that I am limited in capacity to enjoy full mobility in my recreational pursuits, ie home and garden improvements, motor vehicle restorations, 4WD driving and general physical activities with my teenaged children. I am also aware that further deterioration of my back condition may lead to increased medical expenses and support as I further age. As a result of this situation, I have now sought compensation for my condition.”
7. In cross-examination, the applicant said that he had always been aware of the “niggling pain” in his back from the time of the accident although, at the time, his main concern was with his hands. He said that his back condition had worsened over the years and had been particularly noteworthy from around 1986 onwards. At that time, he was a warrant officer but said that he was still involved in manual work in that he was responsible for the ground handling of various appliances and was unable to obtain assistance from those around him because these were also senior non-commissioned officers. In the 1990s, he had been engaged in part-time work with the Air Force and had become aware of his back pain especially when sitting at a computer work station. This was because, he believed, his part-time status meant that he was never in a work station that was dedicated for his purposes and adjusted for his particular needs.
8. He agreed with Ms Ford that he had been in the practice of attending the medical section for various forms of treatment for conditions he suffered during his service and that these ranged from a sore throat, to material in his eye, to a blocked nose, to a pain in his stomach and also for more substantial things such as shoulder, knee and spinal problems. He said that he had not complained about his lower back because he had been concerned that such an injury might have hampered his promotion prospects. He conceded that the presentation of symptoms in his lower back would not really have been sufficient to jeopardise these prospects.
9. Mrs Hatchman also gave evidence on behalf of her husband. She adopted the statement that was completed by her (exhibit 8) which reads:
“While my recall of this event is limited, I do remember that on that afternoon I received a telephone (sic) from my husband George to advise me that he had been injured in an accident with his bicycle on his way home from work at the Richmond airbase. He requested that I pick him up from the Richmond Police Station and take him to the RAAF Base hospital for medical treatment (he was a member of the RAAF and as such was required, where feasible, to go to a military base medical for injury/medical treatment).
I also state that his accident occurred while he was riding home from work; one, because of the timing of the incident, and secondly, that I know my husband NEVER rode his bicycle at any other time than when travelling to and from work at Richmond Airbase.”
10. In questioning from the applicant, Mrs Hatchman said that she had noted a worsening in his back condition, in particular, in the last few years.
11. The applicant submitted that his claim should be dealt with because he had not been aware of his capacity to make a claim until relatively recent years. He said that the Air Force had provided no instruction in relation to the making of compensation claims.
Respondent’s Case and Submissions
12. The evidence for the respondent comprised the affidavit of Paul Ontong which reads:
“I, Paul Ontong of c/- Military Compensation and Rehabilitation Service, Director of Appeals make oath and state as follows:
1.I am the Director of Appeals and duly authorised to swear this affidavit on behalf of the respondent.
2.The delay occasioned by the applicant in lodging a claim for compensation in respect of his alleged conditions has prejudiced the Commonwealth, specifically:
2.1The Commonwealth has been unable to properly investigate the circumstances with respect to the applicant’s alleged back condition;
2.2There are no reports of injury or illness with respect to the condition during the time of service;
2.3It appears probable that the applicant’s condition is not related to his former military employment. The Commonwealth has lost the opportunity to verify or properly investigate this issue and the circumstances that allegedly gave rise to the applicant’s condition given the time that has elapsed;
2.4It is virtually impossible for the Commonwealth to find evidence and/or witnesses to corroborate the event regarding the bicycle accident. Even if witnesses could be located, it is unlikely that they could accurately support the allegations made by the applicant;
2.5The applicant is of the view that the events that caused his condition occurred some 25 years ago. It is now virtually impossible for the Commonwealth to find evidence and/or witnesses to corroborate the applicant’s evidence in this regard given the time that has elapsed;
2.6There is no record of injury to the applicant’s back as a result of a bicycle accident, and there is no mention of a back injury sustained as a result of a bicycle accident noted on any subsequent medical records of the applicant;
2.7there are no witness reports, accident reports, police reports or a statement from the applicant’s supervisor verifying the accident occurred as claimed.
3.All the facts and circumstances herein deposed to are within my knowledge, save such as are deposed to from information only, and my means of knowledge and sources of information appear on the face of this my Affidavit.”
13. Ms Ford submitted that the applicant had failed to give notice of the back condition and had failed to lodge a claim for compensation within the six months required by the 1971 Act and that, because of the time-frames involved, there would be clear prejudice to the respondent if the claim was to be determined. She also submitted that the failure of the applicant to give notice or lodge a claim within the required period was not occasioned by mistake or by absence from Australia. Also, she submitted that he had been well aware of the condition since the accident in 1978 because, on his evidence, he had been left with localised residual niggling pain in the area which had gradually worsened so that it had reached the stage where the pain was relatively constant.
14. Ms Ford submitted that, at all times, it had been open to the applicant to make complaint about his back because he had done so in relation to various medical problems that he experienced during service. She also referred to the report of a bicycle accident in February 1978 and to a complete absence of any reference to a back problem at the time. She submitted that his undergoing of treatment was not sufficient to satisfy the notice or claim requirements of the 1971 Act and that he had no reasonable cause for delaying in the making of his claim or giving of notice. She referred to his evidence that he had made a decision not to make complaint because he was concerned about his promotion prospects and submitted that this was not a reasonable cause for the purposes of the 1971 Act.
Consideration
15. The Act makes provision for compensation to be paid by the Commonwealth in respect of work-related injuries or diseases to various categories of Commonwealth employees, including those serving in the Royal Australian Air Force.
16. In accordance with paragraph 53(1)(a) of the 1971 Act, written notice of the applicant’s injury was to have been given by the applicant to the respondent as soon as practicable after the occurrence of that injury or as soon as practicable after becoming aware of the injury. In accordance with paragraph 54(1)(a) of the 1971 Act, a claim was to be served within six months of the injury or six months after becoming aware of the injury.
17. In his claim form, the applicant stated that he hurt his back in 1978 and, in his evidence, he said that he had always associated the 1978 incident with his back problem. On that basis, I am satisfied that he was aware of his back problem in 1978. It is not disputed that a claim may also constitute a notice: see Re Comcare and Luck(1999) 29 AAR 403 at 417. However, the claim in this matter was lodged in 2001 and this was not "as soon as practicable" after the applicant became aware of his injury twenty three years earlier. Clearly, it was also more than six months after he became aware of the injury. This means that the terms of paragraphs 53(1)(a) and 54(1)(a) of the Act are not met.
18. However, subsections 53(4) and 54(6) of the Act provide that, where the conditions relating to timely lodgement are not satisfied, the notice and the claim, respectively, shall be taken to have been served under the relevant section. Under those provisions, the issues which arise in this case are whether the respondent would be prejudiced if the notice and claim were treated as sufficient and whether the failure to comply with the notice requirements resulted from ignorance, from a mistake or from any other reasonable cause.
19. In Re Tierney and Reserve Bank of Australia(1988) 15 ALD 534 at 535, the purpose of the notice requirement was referred to in the following way:
"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."
20. In this case, the evidence of the applicant was that he had experienced no problems with his back prior to his accident and that he had always had symptoms in his back since that time. Initially, he felt a “niggling” pain which gradually increased in intensity and became significant for him in the 1990s. However, he also gave evidence that he had no doubt that something occurred to him in the incident which has been responsible for his back problems.
21. I have noted the evidence of Mr Ontong and I accept that the delay in this case has compromised the Commonwealth in its capacity to investigate the circumstances of the applicant’s accident or injury. No witnesses to the event have been identified and the applicant’s attempts to obtain information about the accident have been unsuccessful. The archivist with the NSW Police who responded to the applicant’s request for information reported that there were no entries in relation to a motor vehicle accident in the relevant area on 14 February 1978 or on several days around that date (see exhibit 4). In the event that the applicant had made his claim and thereby given notice of his injury at or near the time of the accident, the respondent would have been in a position to have had him medically examined by appropriately qualified specialists, to thereby obtain contemporaneous evidence of the state of his injuries and to conduct further investigation in relation to the identity of the only person who had observed the accident, namely the driver of the car which struck him and rendered assistance. It was the applicant’s evidence that he was taken into the driver’s home and that person would have been able to provide information about the accident as well as the nature, generally, of the applicant’s injuries. So, on that basis, early notification and claim would have enabled the driver to be identified and to provide a statement in relation to those matters.
22. On the basis of the absence of any supportive medical or other evidence to facilitate the Commonwealth in investigating the matter, as well as the long time-frame involved, I am satisfied that prejudice would arise if the claim were to proceed.
23. I have also given consideration to the other matters in sections 53 and 54 of the 1971 Act, that is, whether the failure to comply with the notice and claim requirements resulted from ignorance, from a mistake or from any other reasonable cause. The matter of mistake was not the subject of submissions and I am satisfied that the matter of mistake does not arise in this case.
24. The applicant’s service medical records show that he was treated for various complaints during service and include attendances for a blocked nose and sore throat and for more severe complaints such as migraine, neck and knee pain as well as some treatments for his lower back. Nowhere in his medical records is there any causal association given between these back treatments and a bike accident in 1978. An incident relating to a bike is noted in the applicant’s records as having occurred on 14 February 1978 but no reference is made there to a back injury (see PT7/28). Rather, the applicant is reported as being treated for haematoma and bruising to his hands. The record also shows that he returned for follow-up treatment three days later and, again, only his hands are referred to.
25. The applicant gave evidence that he was ignorant of his compensation rights under the Act until recent times. However, that is not consistent with his evidence that he made a conscious decision not to make complaint about his back because of the potential for that to affect his career. In his statement, he said he “was concerned that any mention of compensation would compromise” his engagement (see T14/53).. His evidence is also characterised by inconsistencies in that regard because he did, in fact, make complaint about his back but did not attribute it to the bike incident. On one occasion, he described a back problem which was triggered by bending down to pick up a dog chain. Also, he made complaint about other serious conditions which could have had a detrimental affect on his career (see PT7/22-27). On the basis of the finding that the applicant was aware of his capacity to make a claim for his injury, I am satisfied that he was not ignorant in that regard.
26. No specific submission was made in relation to whether there was any other reasonable cause for the applicant’s delay in giving notice of his injuries. However, the only explanation given for that delay could be that the applicant was not aware of his rights. In Re Willis and Australian Telecommunications Commission (1989) 19 ALD 665 at 675, the Tribunal held that the test for whether there was reasonable cause in a given situation was one “not judged by reference to some hypothetical man in hypothetical circumstances” but, rather, one that involved an objective test taking into account the subjective circumstances of the applicant. In this case, the applicant made no claim for over twenty three years. On the basis of my finding that he was aware of his injury and of the prospects of making a claim for compensation, no reasonable cause for the delay arises.
27. It follows that I am satisfied that the notice and claim requirements of sections 53 and 54 of the 1971 Act have not been met and, therefore, that the applicant’s claim is not to be considered.
Decision
28. The decision under review is affirmed.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: Sarah Oliver
Associate
Date of Hearing 17 July 2003
Date of Decision 1 August 2003The Applicant appeared in person
Counsel for the Respondent Ms Ford
Solicitor for the Respondent Phillips Fox
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