John Sampson and Military Rehabilitation and Compensation Commission
[2014] AATA 356
[2014] AATA 356
Division VETERANS' APPEALS DIVISION File Number
2014/0777
Re
John Sampson
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 6 June 2014 Place Brisbane The Tribunal affirms the decision under review.
..........................Sgd..........................................
Mr R G Kenny, Senior Member
CATCHWORDS
COMPENSATION – Injury (knee condition) occurring prior to commencement of Safety, Rehabilitation and Compensation Act 1988 (Cth) – Transitional provisions – Failure, under Commonwealth Employees’ Compensation Act 1930 (Cth) (“the Act”), to give notice of accident as soon as practicable or before applicant’s service ended – Failure under the Act to make a claim within six months from the occurrence of the incident – Commonwealth prejudiced by want of notice – Late notice and claim not due to mistake – No reasonable cause for late notice or claim – Relevance of ignorance about notice and claim procedure – Decision under review affirmed – Claim for knee condition not admitted for determination
LEGISLATION
Commonwealth Employees’ Compensation Act 1930 (Cth) ss 9, 16
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 53, 124, 126
CASES
Campbell and Military Rehabilitation and Compensation Commission [2009] AATA 273
Commonwealth of Australia v Connors (1989) 86 ALR 247
McCarthy and Military Rehabilitation and Compensation Commission [2014] AATA 83
Secretary of the Department of Veterans' Affairs v Studdert [2001] FCA 1642
Siemsen and Comcare [1999] AATA 871
Telstra Corporation v Roycroft (1997) 77 FCR 358
Tierney and Reserve Bank of Australia (1988) 15 ALD 534
REASONS FOR DECISION
Mr R G Kenny, Senior Member
6 June 2014
BACKGROUND
On 10 October 2011, John Sampson (“the applicant”) lodged a “Claim for Rehabilitation and Compensation” under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the 1988 Act”) for “degenerative disease” to his “left knee”. He alleged this was
related to his national service in the Australian Army from 20 September 1965 to
28 September 1967. In particular, the applicant wrote that his condition occurred on a sports field at Kapooka in 1965 after he had been tackled while he was playing in a service approved football game. On 13 March 2012, the Military Rehabilitation and Compensation Commission (“the MRCC”) made a determination that it was unable to accept liability for the applicant’s “left knee injury”. In a reviewable decision, dated
28 November 2013, the MRCC affirmed the determination on the basis that the notice of and the claim for the injury were not made in accordance with relevant time-frames and that there was no contemporaneous evidence concerning the condition such that it could conclude that the applicant’s military employment contributed to the claimed condition.
ISSUES AND LEGISLATION
The 1988 Act makes provision for compensation to be paid by the Commonwealth in relation to employment-related injuries where the injury occurred after its commencement date of 1 December 1988. Under s 53(1) of the 1988 Act, notice of the injury must be given in the time-frame set out in that provision. The 1988 Act also contains transitional provisions which pertain to injuries that occurred prior to that date.[1] It is not in dispute that the legislation relevant to the applicant’s claim is the Commonwealth Employees’ Compensation Act 1930 (Cth) (“the Act”). For liability to arise under the Act, the injury must have arisen out of or occurred in the course of employment with the Commonwealth.[2] Time-frames for giving notice of an incident and for making a claim to be admitted and the information to be given are set down in
[1] See s 124 of the 1988 Act.
[2] See s 9 of the Act.
s 16 of the Act which, in so far as relevant, reads:
(1) The Commissioner shall not admit a claim for compensation under this Act for an injury unless notice of the accident has been served upon him as soon as practicable after it has happened, and before the employee has voluntarily left the employment of the Commonwealth, and unless the claim for compensation has been made –
(a) within six months from the occurrence of the incident; or
…
Provided always that –
(i) the want of or any defect or inaccuracy in the notice shall not prevent consideration of the claim by the Commissioner if he finds that the Commonwealth is not prejudiced by the want, defect or inaccuracy, or that the want, defect or inaccuracy was occasioned by mistake, absence from Australia or other reasonable cause; and
(ii) the failure to make a claim within the period above specified shall not prevent consideration of the claim by the Commissioner if he finds that the failure was occasioned by mistake, absence from Australia or other reasonable cause.
(2) Notice in respect of any injury to which this Act applies shall contain the name and address of the person injured, and a statement in ordinary language of the cause of the injury and the date at which the accident happened.
Where the requirements of s 16 of the Act are met, s 126 of the 1988 Act provides that the requirements of s 53 of the 1988 Act are taken to have been met. Although the decision under review dealt with the merits of the applicant’s claim, it was agreed by the parties that the only issue for determination is whether the requirements of s 16 of the Act have been met.
EVIDENCE
The applicant
Despite his reference to a 1965 football injury in his claim form, the applicant completed a statement, dated 15 April 2014, in which he identified 1967 as the year in which his injury occurred during a football game. As a result of the 1967 injury, he was taken to the Royal Newcastle Hospital where he saw orthopaedic surgeon Dr Kerridge. He advised
Dr Kerridge that he had first experienced pain in his knee whilst slow marching at Kapooka in 1965. The applicant again hurt his knee in 1989 when kneeling down to check underneath his car. This resulted in arthroscopic surgery by Dr Parkinson. After a course of physiotherapy, he was able to return to active sport including orienteering and running. By 2004, his knee condition limited him in activities such as golf. In 2009 and 2010, he travelled with his wife to the United Kingdom where he again experienced knee pain. On return to Australia, he became associated with the Currumbin RSL, where he was given assistance in making his compensation claim. In a letter dated 16 April 2014, the applicant confirmed that he had not been aware during his service years that he had a right to make a compensation claim. He wrote that he only became aware of this when so advised by other members of the Currumbin RSL Veteran Support Centre. This led to his claim on 10 October 2011.
Medical records
In evidence were the applicant’s service medical records. These included a medical report, dated 20 July 1967, by Dr Phillip Furey, who confirmed a diagnosis of osteochondritis dessicans of the left femur. Dr Furey also wrote:
In view of this condition, application is hereby made for a medical re-board.
There is no indication in the applicant’s service records that any such re-board ever took place. The applicant’s Entry Medical Examination record, dated 21 July 1965, referred to pre-service fractured metatarsals of his feet and of his right humerus. Entries on an Attendance and Treatment Card on 9 February 1967, 24 February 1967 and 12 July 1967 describe osteochondritis dessicans and, again, an application for re-board is noted. Osteochondritis dessicans at Kapooka in 1965 is also referred to in the applicant’s
Final Medical Board, dated 28 July 1967, as is treatment at the Royal Newcastle Hospital for outpatient treatment in 1967. In the Final Medical Board record, the applicant’s left knee is referred to as having “free, full” movements with “[n]o apparent weakness”. Those service documents gave no detail of the cause of his knee problem.
The applicant was seen by rheumatologist, Dr Phillip Vecchio, who completed a report on 16 April 2012. In reliance on the applicant’s account of the history of his knee condition, radiology completed in 2012 and a recent MRI, Dr Vecchio concluded that the applicant suffered from “left medial compartment osteoarthritis secondary to medial meniscal trauma”. His opinion was that this was consistent with slow marching during the applicant’s service at Kapooka in 1965.
Service records
In response to a request by the respondent for incident reports relating to the applicant’s service, the Department of Veterans’ Affairs (“DVA”) advised that no approval had been given for the applicant to play ADF and/or civilian sport. The Final Medical Board recorded that the applicant’s discharge from the army was on a “non-medical” basis.
SUBMISSIONS
For the respondent
Mr Matthew Hawker submitted that, subject to the provisos in the section, for the applicant’s claim to be entertained under s 16(1) of the Act, notice of an accident must have been given as soon as practicable after it happened and before the applicant’s voluntary discharge from the army. Further, his claim for compensation must have been made within six months of the occurrence of the accident.
Mr Hawker submitted that the applicant had not given notice to the respondent for more than 40 years after his service ended and that this was not as soon as practicable after any accident happened or before his voluntary discharge from the army. In relation to the proviso in s 16(1) of the Act, he submitted that the respondent was prejudiced by the lateness of notice. He referred to attempts by the respondent to investigate through DVA the applicant’s claim and the result that very few service medical records were available. He noted that no approval for him to engage in civilian or defence force sport was located. Mr Hawker accepted that the Royal Newcastle Hospital records revealed treatment for osteochondritis dessicans but also that his Final Medical Board described the applicant as having free and full movements with no apparent weakness in the knee. He submitted that the applicant had confused the issue by claiming in his initial claim that the injury occurred in 1965 whereas, in subsequent statements, he identified 1967 as the time of injury. Mr Hawker submitted that the absence of further contemporaneous medical reports prejudiced the respondent in its ability to fully investigate the circumstances of the applicant’s injury or its impact upon the applicant for more than
40 years.
Mr Hawker submitted that the applicant’s late notice was not due to any mistake, absence from Australia or reasonable cause. The position of the applicant, he submitted, was that he was ignorant of his right to give notice for some 40 years and that this took him far outside of the time-frane requirements of s 16(1) of the Act. Mr Hawker conceded that entries in a service medical record may constitute notice of the injury but that this was so only if s 16(2) of the Act could be found to have been satisfied.[3] He submitted that this had not been done in the service medical records. He submitted that the real reason for the late notice was the applicant’s ignorance of his right to seek compensation.
He submitted that this was not an excuse under the 1930 Act.[4] In particular, he submitted that ignorance did not equate with mistake or reasonable cause.[5]
[3] Relying on Siemson v Comcare [1999] AATA 871.
[4] Relying on Telstra Corporation v Roycroft (1997) 77 FCR 358.
[5] Relying on Commonwealth of Australia v Connors (1989) 86 ALR 247.
Mr Hawker also submitted that the applicant’s claim had not been made in the time-frame referred to in s 16(1) of the Act and that this was not brought about by mistake, absence from Australia or reasonable cause. He submitted that, as with notice, the real reason for the applicant’s late claim was his ignorance of his right to claim. Mr Hawker submitted that the applicant’s claim should not be admitted under the Act and that the decision under review ought to be affirmed.
For the applicant
[6] (1989) 86 ALR 247
Mr Anthony Hornby submitted that, while the applicant suffered an injury in 1967 which was related to his army service, the disease from which he now suffers had its onset many years later such that the time-frames in s 16 for notice to the Commonwealth
were irrelevant. Mr Hornby noted that the respondent relied upon the case of
Commonwealth of Australia v Connors[6](“Connors”) but submitted that this should be distinguished because it involved a public servant rather than a person, like the applicant, who was a member of the defence services and who, unlike the public servant, was entitled to have his medical expenses met while he was serving. Because the applicant believed his medical costs would be met, Mr Hornby submitted, he did not need to be aware of the compensation claim procedure. Mr Hornby conceded that the applicant was ignorant of his ability to make a claim for compensation and also that his absence of early claim was not due to any mistake on his part. He submitted that the applicant’s situation was covered by the terms of the proviso to s 16 of the Act relating to “other reasonable cause”. This was because it was reasonable, he submitted, that the applicant would not be aware of his rights because of his belief that his medical costs would be met by the army.
In addition, Mr Hornby referred to s 126(1) of the 1988 Act which reads:
126 Notices, claims etc. under previous Acts
(1) A notice duly served before the commencing day under:
(a) section 5 of the 1912 Act;
(b) section 16 of the 1930 Act; or
(c) section 53 of the 1971 Act;
in relation to an accident or an injury, loss or damage suffered by an employee shall be taken to be a notice duly given to the relevant authority under section 53 of this Act in relation to the accident, injury, loss or damage.
Mr Hornby submitted that the provision meant that a notice served under s 16 of the Act should be taken to have been “duly given to the relevant authority” under s 53 of
the 1988 Act. On that basis, he submitted, the applicant’s claim should be admitted for consideration.
CONSIDERATION
Notice
I have noted the diagnosis given by Dr Vecchio and his attribution of this to the applicant’s service. However, the matter before me does not relate to causation but, rather, to whether the applicant’s claim was “duly served” under s 16 of the Act.
Unlike later compensation legislation,[7] s 16(1) of the Act requires notice of the “accident” rather than a specific injury. However, in addition to the requirement that the notice be given as soon as practicable after the accident, the notice must set out the matters in s 16(2) of the Act. This requires particulars of the person to be included in the notice as well as particulars, in ordinary language, of the cause of the injury and the date it happened. Accordingly, the focus of the notice requirements in s 16 is the injury which is alleged to have been caused by the accident as well as the accident itself.
[7] See s 53 of the 1988 Act.
In Siemsen and Comcare[8] (“Siemsen”), the Tribunal held that an entry in service medical records could constitute notice of an injury under the Act. In that case, the Tribunal found that the records disclosed the information required by s 16(2) of the Act. The applicant’s records include a reference for treatment for a knee condition in 1965 and in 1967. However, unlike the situation in Siemsen, no further information is provided in that record. Those references do not constitute notice as they do not comply with the terms of s 16(2) of the Act.[9] Notice was not given to the respondent until more than 40 years after the applicant’s service ended and was not given as soon as practicable after the accident which is alleged to have caused the knee condition in accordance with the first part of
s 16(1) of the Act.
[8] (1999) AATA 871.
[9] For a similar outcome, see Campbell and Military Rehabilitation and Compensation Commission [2009] AATA 273.
That absence of timely notice by the applicant does not necessarily preclude him from meeting the notice requirements under s 16(1) of the Act. His claim for those matters may still be considered if the want of timely notice does not prejudice the respondent or if it was occasioned by mistake or other reasonable cause.[10]
[10] The “absence from Australia” factor does not arise in this matter.
In relation to the issue of prejudice to the respondent, I note the decision of the Tribunal in Tierney and Reserve Bank of Australia.[11] There, the following reference is made to the purpose of the notice requirement as it appears in s 53(1) of the 1988 Act which is not materially different from the provision under consideration in the Act:
Section 53 is clearly intended to protect the Commonwealth and its instrumentalities from being placed in a situation where they are unable to disprove an employee’s assertion of an injury alleged to have occurred on some specific occasion in the course of the employee’s work or of a disease contracted because of some brief and transient situation. Some such provision is clearly needed to prevent abuse of the Act.
[11] (1988) 15 ALD 534 at 535.
I am satisfied that the respondent would be prejudiced if it were required to consider the claim in relation to the applicant’s knee condition. The delay of more than 40 years by the applicant has meant that the respondent was not given the opportunity to investigate the matter in a timely manner. The respondent’s endeavours to locate material contemporaneous with the applicant’s service have had limited success and no persons have been identified by the applicant to support his assertions about his knee injury. I am satisfied that the respondent would be prejudiced if it were required to consider a claim more than 40 years after the incidents of causation are alleged to have occurred. Despite that prejudice, consideration must still be given to the alternative components of the proviso in s 16(1) of the Act as to whether the delay was occasioned by mistake or other reasonable cause.[12]
[12] See Secretary of the Department of Veterans' Affairs v Studdert [2001] FCA 1642 at [11].
Mr Hornby submitted that the delay in giving notice was due to the applicant’s ignorance of compensation avenues open to him. He conceded that the delay in giving notice was not due to mistake or absence from Australia. I am satisfied that those concessions have been properly made and note that the Act distinguishes between ignorance and mistake, with only the latter being of relevance under the Act. The distinction between the two concepts was referred to in Telstra Corporation v Roycroft[13] by North J who described the relevant authority as establishing the following propositions:
1. A person who is not aware of a right to claim compensation at all is not mistaken about the right, but ignorant of it: Roles v Pascall & Sons [1911] 1 KB 982.
2. A person who knows that he has a right to claim compensation for one sort of injury, but no idea whether or not he has a right to claim for another, is not mistaken as to his right to claim for the second type of injury, but is ignorant of it: Commonwealth of Australia v Connors [1989] FCA 78; (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 [1937] NSWStRp 13; (1936) 37 SR (NSW) 109.
4. It follows from these authorities that a person who knows he has a right to claim compensation for the particular injury and knows that the time for making the claim is limited, but wrongly believes he has more time to make a claim than the Act allows, is mistaken as to the time for making the claim.
[13] (1997) 77 FCR 358.
His Honour went on to point out that there was a thin line between mistake and ignorance, but said:
If a person acts on the basis of knowledge of the Act and that knowledge is wrong, or the facts upon which the person relies are wrong, then the person has made a mistake. If a person acts without any knowledge about the Act or an aspect of it, and consequently does not know whether or not it applies, then the person is ignorant.
Mr Hornby submitted that the applicant’s ignorance should be considered as reasonable cause for delay. I do not accept that contention. In Connors,[14] the Federal Court said:[15]
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 of the right to a claim, does not constitute, by itself, a mistake and cannot, by itself, constitute other "reasonable cause".
[14] See paragraph 13 above.
[15] Per Northrop and Ryan JJ at 250. See also McCarthy and Military Rehabilitation and Compensation Commission [2014] AATA 83 at [55].
Mr Hornby sought to distinguish the case of Connors from that of the applicant on the basis of the differing nature of employment in the two cases. I do not accept his submission in that regard and am satisfied that the Act and the 1988 Act apply generally to Commonwealth employment. At no stage was Mr Hornby relying on any other basis for not giving notice of an injury which might be considered reasonable. Rather, the applicant did not turn his mind to compensation at all because he was unaware of it.
Neither do I accept Mr Hornby’s contention concerning s 126 of the 1988 Act. That provision enables a matter that has been “duly served” under s 16 of the Act to satisfy the terms of s 53 of the 1988 Act. To be “duly served” under s 16 of the Act, the requirements of s 16 of the Act must have been met. In this matter, I am satisfied that the notice requirements of s 16 of the Act have not been met by the applicant. Below, it will be seen that I have also found the applicant’s claim was not timely in the manner required by that provision.
The claim
Under s 16(1) of the Act, the applicant’s claim must have been made within six months from the occurrence of the incident alleged by him to have caused his knee condition.
Dr Vecchio diagnosed left medial compartment osteoarthritis secondary to medial meniscal trauma and he referred to slow marching as the initial cause of that trauma. Contrary to the submission of Mr Hornby, I am satisfied that this points to an injury rather than a disease and the applicant’s claim for that injury was made more than
40 years after whatever aspect of his service was causally associated with it. Clearly, this is outside of the time-frame required by s 16(1) of the Act. However, failure to make a timely claim will not prevent its consideration if the failure was “occasioned by mistake or other reasonable cause”. The applicant’s evidence and Mr Hornby’s submissions were that the applicant was ignorant of his right to make the compensation claim. For the reasons set out above in relation to notice, the applicant’s ignorance does not amount to a mistake or other reasonable cause and is not a factor which enables lateness of the claim to be excused under the proviso in s 16(1) of the Act.
I am satisfied that the requirements under section 16 of the Act have not been met by the applicant. This means that his claim for compensation in relation to his knee condition may not be admitted under s 126 and s 53 of the 1988 Act.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member .............................Sgd........................................
Associate
Dated 6 June 2014
Date of hearing 22 May 2014 Advocate for the Applicant Mr Anthony Hornby, Veteran Support Centre Currumbin Solicitors for the Respondent Mr Matthew Hawker, Sparke Helmore
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