HAZEWINKEL And MILITARY REHABILITATION AND COMPENSATION COMMISSION
[2005] AATA 681
•19 July 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 681
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1200
GENERAL ADMINISTRATIVE DIVISION ) N2004/1201
N2004/1202
N2004/1203Re WILLEM HAZEWINKEL Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Senior Member, Mrs Josephine Kelly Date19 July 2005
PlaceSydney
Decision 1. The reviewable decision by the Respondent on 6 September 2004 in proceedings N2004/1200 is affirmed.
2. The reviewable decision by the Respondent on 6 September 2004 in proceedings N2004/1201 is affirmed.
3. In proceedings N2004/1202, the claim shall be admitted pursuant to s 16(1) of the Commonwealth Employees’ Compensation Act 1930 (“the Act”) and determined at a substantive hearing.
4. In proceedings N2004/1203, the question of whether the claim should be admitted pursuant to s 16(1) of the Act is to be determined at the substantive hearing.
[sgd] Senior Member, Mrs Josephine Kelly
CATCHWORDS
COMPENSATION – preliminary questions - four proceedings for skin rashes and tinea, haemorrhoids – internal bleeding, tinnitus/hearing problems, low back spinal stenosis – whether the claims relate to a “disease” or “injury” – time limits – claims lodged more than 30 years after the date of injury or incident – failure to make claim - failure to give notice – whether delay causing prejudice to the Commonwealth –– whether “mistake” – whether “ignorance” of right to compensation – decision varied
LEGISLATION
Commonwealth Employees’ Compensation Act 1930 sections 4, 9, 10 and 16
Safety, Rehabilitation and Compensation Act 1988 Part X.
CASELAWDrake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Scutts and Department of Defence [1998] No 13085 10 July 1998
Comcare Australia v McGuire (1996) 68 FCR 329
Commonwealth v Connors (1989) 86 ALR 247
Re Willis & Australian Telecom Commission (1989) 10 AAR 328Telstra Corporation Limited v Roycroft (1997) 77 FCR 358
REASONS FOR DECISION
19 July 2005 Senior Member, Mrs Josephine Kelly BACKGROUND
1. The Applicant, Mr Willem Hazewinkel was a national serviceman in the Australian Army from 2 October 1968 until 1 October 1970. He has four different proceedings before this Tribunal which are the subject of this decision. He represented himself in a hearing by telephone.
2. On 20 June 2003 he lodged three claims for rehabilitation and compensation for different conditions which he stated arose from his army service, each of which is the subject of a separate proceeding. They are:
· Proceedings N2004/1200 is a claim for “skin rashes and tinea” affecting the feet, legs and groin for which he stated he first received medical treatment on 16 February 1970 (PT 14). The reviewable decision was made on 6 September 2004 (T48).
· Proceedings N2004/1201 is a claim for “haemorrhoids – bleeding internal” which he first noticed on 30 April 1970 (PT 13). The reviewable decision was made on 6 September 2004 (T47).
· Proceedings N2004/1202 is a claim for “tinnitus/hearing problems” which Mr Hazewinkel alleged he had sustained as a consequence of exposure to excessive noise between 1 October 1968 and 1 October 1970. He stated that he was required to fire weapons at range practices in order to qualify as a soldier and no ear protection was provided. (PT12 and T44). This was not reported to his supervisor. The reviewable decision was made on 17 August 2004 (T45).
3. In its Statement of Issues, the Military Rehabilitation and Compensation Commission (“the Commission”), described “tinnitus/hearing problems” as an injury, and “skin rashes and tinea” and “haemorrhoids” as diseases.
4. On 9 March 2004 Mr Hazewinkel lodged a claim for rehabilitation and compensation for “low back spinal stenosis” which he claimed to have sustained in late October 1968 (T31). This is the subject of Proceedings N2004/1203. In its Statement of Issues, the Commission described this as an “injury”. The reviewable decision was made on 17 August 2004 (T46).
5. These claims were made in 2003 and 2004, which is at least 33 years after the accidents or incidents that Mr Hazewinkel alleged caused the conditions he says he suffers. There was no dispute that he had not made a claim until then and no formal notice had been given at all.
Issues
6. The issue before me in respect of each matter is the preliminary question of whether the claim for compensation for an injury or disease can be admitted for consideration due to Mr Hazewinkel’s failure to comply with the limitation periods under section 16 of the Commonwealth Employees’ Compensation Act 1930 (“the 1930 Act”). This arises pursuant to the transitional and consequential provisions in Part X of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”), the claims relating to injuries suffered during the period 1968 to 1970 inclusive.
The Law
7. The following definitions in s 4 of the 1930 Act are relevant:
·“disease” includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development, and also includes the aggravation, acceleration or recurrence of a pre-existing disease
·“injury” means any physical or mental injury and includes the aggravation, acceleration or recurrence of a pre-existing injury
8. The Commonwealth is liable to pay compensation “if personal injury by accident” arises out of or in the course of employment (s 9) and where “an employee is suffering from a disease and is thereby incapacitated for work … and the disease is due to the nature of the employment in which the employee was engaged by the Commonwealth” (s 10).
9. Section 16 of the 1930 Act imposes restrictions on the admission of claims for compensation. Relevantly, it provides:
s 16 (1.) The Commissioner shall not admit a claim for compensation under this Act for an injury unless notice of the accident has been served upon him as soon as practicable after it has happened, and before the employee has voluntarily left the employment of the Commonwealth, and unless the claim for compensation has been made –
(a) within six months from the occurrence of the accident; or
(b) in case of death – within six months after advice of the death has been received by the claimant:
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
(3.) The notice may be served by sending it by post in a registered letter properly addressed to the Permanent Head or Chief Officer of the Department or authority in or by which the employee was employed at the time of the accident, or by delivering it at the head office of the Department or authority or to the officer in charge of the work on which the employee was so employed, or in any other prescribed manner.
(4.) In the application of this section, in accordance with section ten, and sub-section (2.) of section four, of this Act, in relation to a claim in respect of an employee who is suffering from a disease or whose death has been caused by a disease –
(a) notice of the accident shall be deemed to have been served in accordance with the provisions of sub-section (1.) of this section if notice of the contracting of the disease was served on the Commissioner –
(i) in the case of a claim arising out of the death of the employee caused by the disease – as soon as 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 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 purpose 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 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.
10. The three terms “mistake”, “absence from Australia” and “other reasonable cause” in provisos (i) and (ii) of s 16(1) are alternatives and therefore the applicant has only to establish one of them to succeed (Scutts and Department of Defence [1998] No 13085 10 July 1998,. In addition, in proviso (i), if the circumstances fall within any of those alternatives, prejudice to the Commonwealth is not a bar (Comcare Australia v McGuire (1996) 68 FCR 329). “Absence from Australia” does not arise in this case.
11. In Telstra Corporation Limited v Roycroft (1997) 77 FCR 358 at 365 it was stated that: “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 v Connors (1989) 86 ALR 247”.
12. In Connors at 250, Northrop and Ryan JJ said “From the authorities it is clear that in this context the word ‘mistake’ includes mistake of law as well as of fact but that ignorance of the law in the sense of a failure to advert to the existence if the right to a claim does not constitute, by itself, a mistake and cannot, by itself, constitute reasonable cause.”
13. Prejudice to the Commonwealth in the first proviso must be demonstrated and must be more than minimal, and such that it would hamper the Commonwealth unreasonably in preparing to meet the claims: Re Scutts and Department of Defence (AAT, No 13085, 10 July 1998, unreported, at paragraph 29).
14. When determining whether the failure to lodge the claim was occasioned by mistake, absence from Australia or other reasonable cause, it is necessary to look at the six month period only from the occurrence of the injury or becoming aware he was suffering a disease to see if any of those factors can be demonstrated to have caused the failure to make the claim within that period (Scutts and Department of Defence AAT No 13085 10 July 1998, paragraph XXXI, Re Willis & Australian Telecom Commission (1989) 10 AAR 328).
The Evidence
15. The Entry Medical History Record completed on 9 May 1968 record that Mr Hazewinkel did not suffer from any abnormality in respect of his skin, hearing or back (T6). His anus was noted to be “normal” although an external anal skin tag was noted.
16. Following is a summary of the evidence about the conditions the subject of the claim during Mr Hazewinkel’s period of service.
“Haemorrhoids - bleeding internal”
17. Mr Hazewinkel’s claim for “Haemorrhoids – Bleeding internal” (T13) states that the 30 April 1970 was both the first time he had noticed that condition and the first time he had received medical treatment for it. In an apparent application seeking review of a decision, Mr Hazewinkel states that he began having such trouble approximately 8 to twelve months after enlistment (PT36). In the claim form he stated that he reported it to Dr Moray on 30 April 1970 but had not completed an incident report.
18. An Out-patient record appears at T11. It shows that Dr Moray diagnosed “Haemorrhoids – bleeding internal” on 24 April 1970 and referred Mr Hazewinkel to the surgeon. On 30 April 1970, Dr C David, apparently a surgeon, noted that “PDs”, which I understand to mean preliminary diagnosis, was “Anal fissure” and said “Please admit today for Op to-morrow”. Document PT 6 shows that Mr Hazewinkel had an operation in May 1970 when a fissure in ano was excised. Document PT 9 shows that he was in “2Mil Hosp” from 30 April until 18 May 1970. Given the contemporaneous documentary material, I conclude that the first time he became aware of such a condition was 24 April 1970. Whether that diagnosis was correct is questionable given the diagnosis of “Anal fissure” 30 April 1970 and surgery for fissure in ano, but that is a matter that was not pursued before me and is not relevant to my task. For the purpose of this application, I conclude that the first time Mr Hazewinkel became aware of a diagnosis of harmorrhoids / internal bleeding was 24 April 1970.
Skin Rashes and Tinea
19. Mr Hazewinkel’s compensation claim (T14) states that he first received medical treatment for “skin rashes and tinea” on 16 February 1970, although he states that he first noticed it “Between 1/10/68 & 1/10/70” which is the full period of his service. Document T10 shows that he had treatment for Pityriasia (Tinea) Versicolour on 16 February and 16 March 1970. In his claim, Mr Hazewinkel that he reported the condition to his supervisor and referred to the “attached Out-patient record”. Although not attached in the T documents, I assume that a record was attached to the original, perhaps T10. He did not complete an incident report. Therefore the six month claim period ended on 15 August 1970.
Back
20. In his claim form for lumbar spinal stenosis which specifies the lower back as the part of the body affected (T31), Mr Hazewinkel stated that he sustained the injury in late October 1968 in the late afternoon and that he first received medical treatment on that day and reported it to a supervisor whose name he does not remember. He detailed how the accident occurred while he was helping lift a concrete mixer and repeated that in his oral evidence. In answer to the question in the claim form “What aspects of your employment do you think contributed to your illness or disease?” he responded:
“The damage to my back resulted in long term degeneration which required surgery in October 2003”.
21. There is an undated letter from Mr Keith Rowland (T7) who says he was present in the latter part of 1968 when Mr Hazewinkel twisted his back while “we were packing gear up. When he twisted his back, he complained to an NCO and was taken up to the RAP. From memory Will was placed on light duties for a week”. There is no supporting contemporaneous medical or other record in evidence of such an incident. Prima facie, the six month period ended at the end of April 1969.
Tinnitus / hearing loss
22. In the case of the tinnitus / hearing loss claim there is no contemporaneous documentary evidence before me of Mr Hazewinkel’s receiving or requesting medical attention for either condition or of any report of an incident affecting his hearing while in the Army. He acknowledged in his claim that there was no report of the injury or illness and no incident report.(PT12) There was no reference to supporting medical records. He also does not specify a date when he first noticed either condition. In reply to the question “When did the injury happen or when did you first notice the disease or illness?” he wrote “1968/69/70”. He described the task he was performing when he sustained the injury:
“Attend Range shoots as part of normal Army Training. No ear protection provided. I am suffering loss of hearing and ringing in my ears that requires masking”.
23. He listed various weapons he was firing. In apparent contradiction, in another answer the words “Ear protection provided” appear. In a Supporting Statement (PT 44) he described similar activities and lack of ear protection and also stated that “As a result of these experiences I have had ringing in my ears and hearing loss” . In his oral evidence he stated that he suffered tinnitus/loss of hearing after grenade throwing at Kapooka during the first year of his service, that is 1969.
24. On the Discharge History Questionnaire (PT6), against the question of “Have you ever had or have you now: 13 Deafness”, the Box marked “No” was ticked. The history taken from Mr Hazewinkel for the purposes of an assessment by Australian Hearing in October 2004 (T26) included “an incident when he suffered a temporary hearing loss after grenade practice which he reported at the time”. That document also records that Mr Hazewinkel complained of suffering “tinnitus for the past 3-4 years and hearing problems on the phone”.
25. On the evidence before me, I find that Mr Hazewinkel determined the dates of his various injuries from his service medical records which he had obtained, where there were such records. To ensure that I had all relevant material before me, I requested Mr Hazewinkel to send in all the records he had relied upon, which he did.
26. Relevantly, the Discharge records (PT6) contained nothing relating to the conditions the subject of this decision, except for a reference to the operation for the fissure in ano in May 1970.
Evidence – mistake or other reasonable excuse
27. Mr Hazewinkel said in his oral evidence that he did not know that he could claim for the conditions he complained of until he saw Mr Greg Sherlock, an advocate from Legal Aid’s Veteran’s Advocacy Service in about May 2003 in Dubbo. Mr Sherlock gave him the compensation claim forms. He made a similar statement in a letter headed “Request for Review of Decisions” stamped received on 2 August 2004 (PT36).
”I did not apply earlier I was unaware that any compensation scheme existed until I read a notice at the Dubbo RSL sub-branch that a member of the Veterans Advocacy Services Legal Aid Commission was holding a seminar on issue of military compensation. I attended that seminar and arrange (sic) private interview for the next day”.
28. In cross-examination Mr Hazewinkel repeated that he did not claim for compensation because he did not know he could and did not know that there was a statutory scheme before May 2003.
29. Mr Johnson appearing for the Respondent (“the MRCC”) relied on the above evidence to argue that Mr Hazewinkel was ignorant of his right to compensation rather than being mistaken, which does not satisfy the proviso.
30. In his statutory declaration dated 7 October 2003 (T24) Mr Hazewinkel stated that he had been advised many years ago that he was not entitled to make a claim for his disabilities because he did not go to Vietnam. Mr Hazewinkel was not cross-examined about that statement.
31. During his oral evidence, Mr Hazewinkel also said that he had not lodged a claim because he was led to believe that you could only make claims while in the service.
32. The contemporaneous evidence of his knowledge and state of mind in relation to claiming compensation during his service was limited to one document at the time of his discharge in 1970. In the Questionnaire he signed and certified on 25 July 1970 before discharge, the box “No” was ticked in answer to the question at number 43 of the document “Have you ever received, applied for or do you intend to apply for a pension or compensation for an existing or prior disability?” (PT 6).
33. In his statutory declaration, Mr Hazewinkel stated that during the medical examination he had to undergo at the end of his time in the Army: (T24)
‘I was informed that if I had any illnesses or problems that I wished to declare to the “Discharge Board” I was required to stay on in the Army until a medical officer could investigate my complaint. I was of the opinion that all my problems had been recorded on my medical file and saw no need to stay on. All I wanted was to get out of the Army, as soon as practicable.’
34. His oral evidence was to similar effect. He also said that if he had said that he wanted further treatment from military doctors he would have had to stay. He said there was no talk about claiming compensation. He also said that he was receiving half the pay in the Army that he was beforehand and had lost a block of land because of that difference in pay. I infer these were reasons why he wished to get out of the Army as quickly as possibly.
35. On the evidence, I conclude that around the time of his discharge, Mr Hazewinkel was not suffering from any significant problem associated with any of the conditions now the subject of the claims I am considering and simply did not contemplate making a compensation claim.
Consideration
36. Depending on whether the conditions the subject of the claim are categorised as an “injury” or a “disease” different time limits may apply. I sought the assistance of counsel for the respondent at a directions hearing after the hearing had ended, however, I understand the position was maintained as at the hearing, that all the periods ran from the date Mr Hazewinkel stated in his claims which were all during service.
37. In the case of the haemorroids – internal bleeding, whichever way it is categorised, the six month period lapsed at the end of in October 1970. That is also the case with “skin rashes and tinea” and the six month period ended on 15 August 1970. However, in the case of the other conditions it is more difficult.
38. The injury to the lower back occurred in October 1968. However, Mr Hazewinkel stated in his claim that “the damage to my low back required surgery in October 2003”. If the 1968 injury is relied upon, the six month period ended in April 1969. However, if lumbar stenosis is treated as a disease in accordance with s 16(4), that period runs from when Mr Hazewinkel first became aware of the disease. I have no evidence of when that occurred, but I do know that he had an operation for that condition in 2003, and infer he became aware that he suffered the condition at some time before he had the operation.
39. The case of tinnitus / loss of hearing is also difficult. Mr Hazewinkel has provided a history during army service of suffering loud noises from shooting weapons and also an incident of temporary hearing loss when a grenade went off. There is evidence of the onset of the condition occurring 3-4 years before October 2004, that is 2000 to 2001 (T26). This suggests to me that the condition is relevantly a “disease” rather than in “injury” as the allegation is that it arose from the nature of employment. Differences in time limits are relevant to determining prejudice to the Commonwealth.
40. From the evidence summarised above, there are three reasons Mr Hazewinkel has given for failing to make a compensation claim before 2003:
1. He had been told years ago that he did not qualify because he did not serve in Vietnam (statutory declaration 7 October 2003, T24);
2. He did not know that there was a scheme of compensation until May 2003 (his request for review received 2 August 2004, T36);
3. He could not make a claim unless he was in the Army (17 February 2005).
41. Logically, they are also the reasons for his not giving notice as required by s 16. There is no evidence supporting a finding that Mr Hazewinkel did provide notice of his tinnitus/hearing problem, his haemorrhoids, skin rashes and tinea and lower back conditions. In respect of the first three conditions, he explicitly stated in his claim form that he had not done so and in respect of his lower back injury he wrote “don’t know”. In evidence, he claimed that his medical records disclosed his conditions and therefore constituted the required notice, however, I do not consider that the records referred to above satisfied the notice requirement.
42. Counsel for the Commission argued that Mr Hazewinkel was ignorant of his right to claim compensation rather than mistaken and that there was relevantly prejudice to the Commonwealth because of his failure to give notice. Therefore the claims should not be admitted.
43. Given the chronology of the different reasons given, I conclude that Mr Hazewinkel did not claim because he had been told “years ago” that he did not qualify because he did not serve in Vietnam. However, I infer that “years ago” was at a time after he left the army. His statement in his request for review and repeated in oral evidence that he did not know that there was a scheme of compensation is consistent with the first reason if one adds the words “for people who did not serve in Vietnam”, which I accept was his belief.
44. Leaving to one side for the moment, the question of whether that belief constituted a “mistake or ignorance”, did it occasion the failure to give notice and claim in the prescribed time? (Scutts at paragraphs XXXI and XXXII). As set out previously, I consider that Mr Hazewinkel did not give notice and did not claim within six months of suffering from “haemorrhoids / internal bleeding” and “skin rashes and tinea” because they were not of great concern to him at the time rather than because of the belief he has given evidence about. That is also the case in relation to the lower back if that is treated as an injury. That injury occurred in October 1968 and he continued in service apparently untroubled. There is no record on his discharge of these complaints or tinnitus / hearing loss.
45. Accordingly, I am not satisfied that there was a relevant mistake that occasioned the failure to give notice or make a claim for the “haemorrhoids / internal bleeding” and “skin rashes and tinea”. I accept that the Commonwealth is relevantly prejudiced by the delay in giving notice of the injuries as required by s 16. The Commonwealth has been denied the opportunity to investigate the various conditions and their cause at the time they are said to have arisen and over the past 35 to 37 years. Accordingly, these claims should not be admitted.
46. In the case of “tinnitus / hearing loss”, it is my view that it is a disease and Mr Hazewinkel first became aware of it was 2000 to 2001. I accept that his belief as I have found it was the reason he did not file a notice as required or lodge a claim within six months. I further find that his belief was a mistake rather than ignorance. He knew of a right to compensation but held a positive belief, wrongly, that he did not qualify because he did not serve in Vietnam.
47. In the case of the lumbar stenosis claim, I am not prepared to make a finding on the preliminary question on the evidence. The question of how it should be categorised was not fully argued, although I had sought assistance from counsel for the Commission. I did not have the benefit of medical evidence about the condition, including the date of diagnosis and I do not know when Mr Hazewinkel first became aware he suffered from it. In those circumstances, and given the beneficial nature of the legislation, the role of this Tribunal and that Mr Hazewinkel was unrepresented and appeared by telephone, I am not prepared to make a finding on this question at this stage. I am not in a position to make a “correct and preferable” decision (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60). It is appropriate that the matter proceed to a hearing where it can be determined on the basis of proper evidence and argument.
DECISION
48. In Proceedings N2004/1200 and N2004/1201 the reviewable decision is affirmed. In proceedings N2004/1202, the claim shall be admitted pursuant to s 16(1) of the 1930 and determined at a substantive hearing. In proceedings N2004/1203, the question of whether the claim should be admitted pursuant to s 16(1) of the 1930 Act is to be determined at the substantive hearing.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly
Signed: Miss Sacha Keady
AssociateDate/s of Hearing 17 February 2005
Date of Decision 19 July 2005
Applicant Representative Self Represented
Counsel for the Respondent Mr G. Johnson
Solicitor for the Respondent Phillips Fox
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