Joseph Brain and Military Rehabilitation and Compensation Commission

[2013] AATA 286

[2013] AATA 286 

Division	Veterans' Appeals Division
File Number(s)	2012/3111
Re	Joseph Brain
APPLICANT
And	Military Rehabilitation and Compensation Commission
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	10 May 2013
Place	Brisbane (heard in Tweed Heads)

The application for review is rejected.

..........................[Sgd]..............................................

Senior Member Bernard J McCabe

CATCHWORDS

VETERANS' AFFAIRS – Compensation – Application made outside limitation period – Commonwealth prejudiced – Application for review rejected

LEGISLATION

Compensation (Commonwealth Employees) Act 1971

Safety Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

Senior Member Bernard J McCabe

10 May 2013

1. Mr Joseph Brain is seeking compensation for an injury to his teeth that he said occurred while he was undertaking parachute jumps in the Army. One of the jumps in question occurred in 1982 or 1983 and a second incident occurred in the course of a jump in 1983. Mr Brain said his teeth were cracked and he now needs expensive treatment to address the problems.

2. There was no formal report of any incident or injury at the time, and Mr Brain did not seek compensation until 2010.

3. The Military Rehabilitation and Compensation Commission rejected the claim for compensation, and it argued the Tribunal should do the same. The Commission’s argument was based on:

   (a) the provisions of the Compensation (Commonwealth Employees) Act 1971 (“the 1971 Act”) which applied in 1982-1983; and

   (b) the interaction between the provisions in the 1971 Act and the provisions of the Safety Rehabilitation and Compensation Act 1988 (the SRC Act), especially s 124, which effectively prevent an applicant from claiming relief under the SRC Act if he or she would have been prevented from making a claim under the 1971 Act.

4. Section 53 of the 1971 Act required that written notice of any injury be provided to the responsible authorities “as soon as practicable after the occurrence of the injury” (or the point at which the applicant became aware of the injury). Mr Brain did not provide written notice of his injuries in the aftermath of either jump. At the hearing he said he mentioned the injury to supervisors on the ground after each jump but did not want to make a fuss about what he believed (at the time) were comparatively minor injuries. One of the statements provided in support of his application refers to Mr Brain lying on the ground and being seen by medics, but there is no record of a report being made in relation to the incident. Mr Brain did not provide details of any injury to his treating dentist when he subsequently sought treatment for teeth problems, so there is no suggestion he cured his failure to notify the authorities through some sort of constructive notice provided to a health practitioner employed by the Army. Section 54 of the 1971 Act goes on to provide that a claim for compensation must be made within six months of the date of injury (or within six months of the date on which the applicant became aware he was injured). As I have already noted, that did not occur here. The applicant said he did not need to claim compensation at the time because he was receiving free dental care. It is only now that he faces the prospect of paying out for dental care that he looks to the respondent for compensation.

5. There are exceptions to the limitation periods contained in ss 53 and 54 of the 1971 Act. A failure to give written notice and a failure to claim compensation within the limitation period will not be fatal if, relevantly, “the Commonwealth would not, by reason of the failure, be prejudiced…”: ss 53(4) and 54(6). Mr Brain relies on this exception.

6. The Commission said it will be prejudiced in its investigation and handling of the claim because it only has Mr Brain’s word for what occurred in 1982 and 1983. The records that exist do not support his claim, and it is apparent some of the records have been lost. (Mr Brain insisted there is a sinister explanation for this. He has made other claims which have run into difficulty because his files were incomplete. He appears to believe the files have been tampered with. He did not provide me with a clear or convincing explanation for why he would be targeted in this way, so I do not know what to make of his claim.)

7. I think the Commission is right. The passage of time and the paucity of records means the Commission will be prejudiced in its efforts to investigate and evaluate (and assist the Tribunal in the evaluation of) the applicant’s claim. In those circumstances, I do not think the claim can proceed. The application for review must therefore be rejected.

I certify that the preceding 7 (seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe .

.......................[Sgd].................................................

Associate

Dated   10 May 2013

Date(s) of hearing	28 March 2013
Date final submissions received	14 March 2013
Applicant	In person
Counsel for the Respondent	Charles Clark
Solicitors for the Respondent	Kate Slack