JOSEPH DEMO and MILITARY REHABILITATION AND COMPENSATION COMMISSION

[2009] AATA 841

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 841

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/6095; 2009/0887

VETERANS’ APPEALS DIVISION		)
Re		JOSEPH DEMO

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe

Date30 October 2009

PlaceBrisbane

Decision The Tribunal affirms the decisions under review.

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

Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – Injury – alleged injury or disease occurring prior to the commencement of the Safety, Rehabilitation and Compensation Act 1988 – transition provisions – whether notice o injury given as soon as practicable under Commonwealth Employees’ Compensation Act 1930 – whether Commonwealth prejudice by want of notice – whether due to mistake or other reasonable cause – decisions affirmed

Commonwealth Employees’ Compensation Act 1930 (Cth) ss 9, 16

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 124

REASONS FOR DECISION

30 October 2009 Senior Member Bernard J McCabe         

1.      In 2007 Mr Joseph Demo, the applicant, lodged claims for compensation with the Military Rehabilitation and Compensation Commission, the respondent, for injuries he suffered to his leg and back in 1970 while performing National Service. The respondent denied it was liable to compensate the applicant on the basis that Mr Demo made his claim outside of the time-frame specified in the legislation. Mr Demo has now asked the Tribunal to review the decisions.

2.      I presided over a hearing in July this year. During the course of cross-examination, Mr Demo left the hearing room and never returned. Rather than dismiss his applications, I asked the District Registrar to contact Mr Demo to discuss how he wanted to proceed. Mr Demo indicated to the District Registrar that he did not want to continue in person but was content for the Tribunal to make a decision on the basis of the materials before it. The respondent was also asked for its views on how to proceed, and it consented to me dealing with the matter on the basis of the material before me.

3.      For the reasons I give below, I am satisfied that the respondent is not liable to pay Mr Demo compensation for his injuries. The reviewable decisions must therefore be affirmed.

The factual background

4.      Mr Demo came to Australia from Yugoslavia in 1965. He was called up for National Service in April 1969. He served as a medical orderly after he completed his basic training. He was discharged in April 1971.

5.      Mr Demo said he suffered two injuries while completing his National Service. The first injury occurred during 1970 when a water trailer crushed his right leg against a Land Rover: Application No 2008/6095. There are no contemporaneous records of the accident. There is, however, a record of treatment for a bruised leg in a sick report of May 1970. This report does not identify what caused the bruising or how the bruising was treated. There are also other sick reports describing injuries Mr Demo suffered during sporting activities. Mr Demo provided an account of the accident and treatment in an undated letter to the Tribunal. He wrote that there was no incident report book. He added that it was not possible to do anything about the injury as he was setting up camp in the You Yangs at the time the injury occurred. He said he sought treatment from his commanding officer a fortnight after the incident but was told there was no need to examine his leg in light of the time that had passed. His commanding officer advised him to take pain killers.

6.      The applicant also said he injured his lower back during his service: Application No 2009/0887. He did not specify in his claim form an exact time when this occurred. He attributed his back condition to lifting patients on stretchers in the course of his duties. He said he was required to deal with patients in the manner on account of staffing levels. In the undated letter to the Tribunal, Mr Demo also referred to a 2.5 metre fall onto his back while he climbed a rope during his basic training. He wrote that he took pain killers to relieve the pain for the remainder of his time in the Army. He presumably had access to pain relief medication as a consequence of his work as an orderly. He said he did not want to complain about the pain.

7.      The applicant said he did not become aware of his right to claim compensation for his injuries until a few years ago when he joined the RSL. He subsequently lodged claims for compensation in respect of both injuries in September 2007. The respondent denied it was liable in respect of either injury on account of a lack of evidence to support the relevant legislative test.

The legislation

8.      Mr Demo’s claims for compensation must be determined by reference to the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”) and the Commonwealth Employees’ Compensation Act 1930 (“the CEC Act”).

9. The SRC Act makes provision for the Commonwealth to pay compensation to a nominated class of employees and diseases occurring after 1 December 1988. For injuries occurring prior to that date, as is the case here, regard must be had to s 124. Under s 124, a person is only entitled to be paid compensation in respect of an injury if the injury was compensable pursuant to the CEC Act.

10. Section 9 of the CEC Act provides the Commonwealth is liable to pay an injured person compensation where the cause of the injury arises out of, or occurs in the course, of his or her employment.

11. Section 16 sets out a time-frame for giving notice and for making a claim for compensation under s 9 of the CEC Act. Under s 16(1), a claim will not be admitted unless the claimant:

·gave notice of an accident as soon as practicable after it has happened; and

·gave notice before he or she had voluntarily left the employment; and

·made the claim within six months of the accident.

12. In the present case, there is an issue whether Mr Demo’s application may be admitted under s 16. I must address this issue before I can consider if the respondent is liable to compensate him pursuant to s 9.

Can the applicant’s claim be admitted?

13. Under s 16 of the CEC Act, Mr Demo must have given notice of the accident as soon as practicable after it took place and before he left the Army. Mr Demo must have also made his claim within six months of the accidents. None of these things has happened.

14. Mr Demo’s delay is not fatal to his current claims. Section 16 provides that a claim may be admitted despite a claimant’s delay so long as:

·the want of timely notice does not prejudice the respondent or was occasioned by mistake, absence from Australia or other reasonable cause; and

·the failure to make a claim within the specified six month period was due to mistake, absence from Australia or other reasonable cause.

15.     The respondent said the Tribunal should not admit Mr Demo’s claim because it would be prejudiced by the want of timely notice of his claim. The respondent argued that the passage of time (some 37 years) would make it almost impossible to properly investigate his story. It pointed to the applicant’s failure to include medical certificates or other documentation when he made his claims. It also submitted that the applicant’s service medical records do not provide any direct support of his claims. The respondent said that its subsequent investigations have not been able to find any evidence of the applicant’s injuries occurring in the course of his employment.

16.     The applicant did not me provide me with submission on this point. Nor does any of the material that he previously filed in the Tribunal touch on this issue.

17.     Without the benefit of the applicant’s submissions, I am satisfied that the respondent would be prejudiced if Mr Demo’s claim were to be admitted. The course of events surrounding Mr Demo’s injuries is not clear. There are no contemporaneous records describing the incidents Mr Demo said caused his leg and back conditions. There are no witnesses who can verify his claims. In the circumstances the respondent would be put in a situation where it would be unable to disprove or even meaningfully investigate the applicant’s case.

18.     Mr Demo’s claim may still be admitted if the want of timely notice was occasioned by mistake, absence from Australia or other reasonable cause. The respondent argued that it was not. The respondent submitted there is no suggestion in the materials that the want of notice was occasioned by any of these things.

19.     I agree with the respondent. There is nothing in the material that suggests Mr Demo’s want of timely notice was occasioned by a mistake, absence from Australia or other reasonable cause.

20. It follows I am satisfied that Mr Demo’s has not met the notice requirements under s 16 of the CEC Act. His claims cannot be admitted. The reviewable decisions must therefore be affirmed.

Conclusion

21.The reviewable decisions are affirmed.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed:..............................[Sgd]................................................
  Michael Buckingham, Associate

Date of Hearing  9 July 2009
Date of Decision  30 October 2009
Solicitor for the applicant          Unrepresented
Counsel for the respondent      Miss E Ford
Solicitor for the respondent     DibbsBarker Lawyers