Kleidon and Military Rehabilitation and Compensation Commission (Compensation)

[2016] AATA 369

Kleidon and Military Rehabilitation and Compensation Commission (Compensation) [2016] AATA 369 (3 June 2016)

Division	VETERANS’ APPEALS DIVISION
File Number(s)	2014/3464
Re	Peter Kleidon
APPLICANT
And	Military Rehabilitation and Compensation Commission
RESPONDENT

DECISION

Tribunal	Deputy President Dr P McDermott RFD
Date	3 June 2016
Place	Brisbane

I affirm the decision under review.

..............................[sgd]..........................................

Deputy President Dr P McDermott RFD

Catchwords

VETERANS’ AFFAIRS – compensation and rehabilitation – nervous/anxiety disorder - Compensation (Commonwealth Government Employees) Act 1971 applicable – failure to satisfy notification requirements - respondent would be prejudiced by the delay in lodging the claim – delay not found to be occasioned from ignorance, from a mistake or from any other reasonable cause – decision affirmed under review

Legislation

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

Compensation (Australian Government Employees) Act 1971 (Cth)

Compensation (Commonwealth Government Employees) Act1971 (Cth) ss 5, 53 - 54

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

3 June 2016

INTRODUCTION

1. This is an application by Mr Peter Kleidon (“the applicant”) for this Tribunal to review the decision of a delegate of the Military Rehabilitation and Compensation Commission (“the respondent”) dated 19 June 2014. The delegate affirmed the determination of a delegate of the respondent dated 5 August 2013 to deny liability in respect of a “nervous/anxiety disorder”.[1] The applicant claims that he suffers from these conditions as a result of his service as a junior recruit in the Royal Australian Navy (“RAN”) between 1970 and 1973. In the claim form the applicant stated that the conditions were caused by “harassment and bullying from fellow servicemen”.[2]

   [1] Exhibit A: T-Documents, T5 at p. 36.

   [2] Exhibit A: T-Documents, T5 at p. 39.

   LEGISLATION

2. On 10 September 2012 the applicant made a claim for rehabilitation and compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the 1988 Act”). The claim was received by the respondent on the following day. The 1988 Act commenced on 24 June 1988 by Royal Assent. The claim for compensation stems from events which are alleged to have occurred from the time after the applicant’s enlistment in the RAN in 1970 and before his discharge in 1973. At this time the Compensation (Australian Government Employees) Act 1971 (Cth), later retitled as the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act), was in force.

3. Part X of the 1988 Act makes provision for transitional matters. Section 124(1A) of the 1998 Act provides that a person is entitled to compensation for an injury, loss or damage suffered before the 1988 Act commenced if compensation was, or would have been, payable under the 1971 Act. Section 124(2)(c) confirms that a person is not entitled to compensation for an injury, loss or damage suffered before the 1988 Act commenced if compensation was not, and would not have been, payable under the 1971 Act. Therefore, I am required to determine whether compensation was, or would have been, payable to the applicant under the 1971 Act.

4. Section 5 of the 1971 Act defines an “injury” as:

   … any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury but, subject to section 29 of this Act, does not include a disease or the aggravation, acceleration or recurrence of a disease;

5. Sections 53 and 54 of the 1971 Act set out the notice requirements for claimants:

   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

   (c)  if the employee died without having become so aware or before it was practicable to serve such a notice-as soon as practicable after his death.

   …

   (4) Where-

   (a)  a notice purporting to be a notice referred to in a preceding sub-section 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 sub-section; 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 sub-section.

   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.

   (2) If the claimant is the employee, the prescribed period for the purposes

   of the last preceding sub-section 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;

   (b)  in the case of a claim in relation to a disease contracted, or an aggravation, acceleration or recurrence of a disease suffered, by the claimant-the period of six months commencing on the day on which the claimant became aware of the contraction of the disease, of the commencement of the aggravation or acceleration of the disease or of the recurrence of the disease; or

   (c)  in the case of a claim in relation to loss of, or damage to, an artificial limb or other artificial substitute, or a medical, surgical or other similar aid or appliance, used by the claimant, being a loss or damage that arose in circumstances referred to in section 28-

   (i)  the period of six months commencing on the day of the occurrence of the accident that resulted in the loss or damage; or

   (ii)  if the claimant was not, immediately after the accident, aware that the accident had resulted in the loss or damage-the period of six months commencing on the day on which he became so aware.

   (3) If the employee has died and the claimant is his legal personal representative making a claim in pursuance of sub-section (1) of section 55, the prescribed period for the purposes of sub-section (1) is-

   (a)  in the case of a claim in relation to an injury to the employee-

   (i)  the period of six months commencing on the day of the injury; or

   (ii)  if the employee did not become aware before his death that he had sustained an injury-the period of six months commencing on the day on which the claimant became aware of the death of the employee;

   (b)  in the case of a claim in relation to a disease contracted, or an aggravation, acceleration or recurrence of a disease suffered, by the employee-

   (i)  the period of six months commencing on the day on which the employee became aware of the contraction of the disease, of the commencement of the aggravation or acceleration of the disease or of the recurrence of the disease; or

   (ii)  if the employee did not become aware before his death that he had contracted a disease or suffered an aggravation, acceleration or recurrence of a disease-the period of six months commencing on the day on which the claimant became aware of the death of the employee; or

   (c)  in the case of a claim in relation to loss of, or damage to, an artificial limb or other artificial substitute, or a medical, surgical or other similar aid or appliance, used by the employee, being a loss or damage that arose in circumstances referred to in section 28-

   (i)  the period of six months commencing on the day of the occurrence of the accident that resulted in the loss or damage; or

   (ii)  if the employee did not become aware before his death that the accident had resulted in the loss or damage-the period of six months commencing on the day on which the claimant became aware of the death of the employee.

   …

   (5) If the claimant is a person to whom the compensation is payable by virtue of paragraph (b) or paragraph (c) of sub-section (5), or sub-section (9), of section 37 or by virtue of section 44, the prescribed period for the purposes of sub-section (1) of this section is the period of six months commencing on the day on which the liability to pay the cost to which the claim relates arose, or on which the expenditure to which the claim relates was incurred, as the case may be.

   (6) Where-

   (a)  a claim purporting to be a claim referred to in sub-section (1) 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 sub-section; 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 sub-section.

   EVIDENCE OF APPLICANT

6. On 10 April 1970 the applicant enlisted with the Royal Australian Navy as a junior recruit. On 16 April 1970 he was posted to HMAS Leeuwin as part of the 31^st Stevenson Division.

7. The applicant stated that he was subject to bullying on HMAS Leeuwin because he had acne problems which he felt made him an “open target”. He was tormented about his acne by others and he described this torment as both “hurtful” and “painful”.

8. The applicant was required to attend classes as part of his training. The recruits were afforded short breaks between classes in which they could remain in the classroom or go outside. One recruit had been “sniping off” at the applicant over a period of months. When the applicant returned to the classroom after a break, that recruit said “something” to the applicant which was of a derogatory nature. The applicant asked that recruit to “leave me alone”. That recruit then attacked the applicant as though he was “some kind of prize fighter”. The applicant was punched two or three times in the body and fell backwards onto the tables and chairs.

9. The applicant gave a number of reasons why he did not report the incident when he was attacked. He remarked that “dobbing” was not acceptable within the culture of the Navy at that time. He did not expect that “any sort of justice” would be achieved. He also feared that he would be seriously assaulted if he made a report.

10. The applicant stated that following the incident “there was a lot of sniping” from the recruit who assaulted him and who “was trying to draw [him] into something”. The applicant stated that he attempted to avoid that recruit but that this was difficult given that they were both in the same class.

11. The applicant described a second incident which occurred when he returned to his floor after having lunch. The applicant passed the recruit who said again said “something” to the applicant. When the applicant responded, the recruit hit the applicant several times until he was “down”.  

12. The applicant served on HMAS Albatross upon the completion of his twelve month posting to HMAS Leeuwin. The applicant had the opportunity to remain on HMAS Leeuwin and complete officer training. He declined to do so because he “wanted to get out of there… as fast as [he] could”. Unfortunately for the applicant another person who harassed the applicant while he served on HMAS Leeuwin was also on HMAS Albatross. The applicant described him as an “intimidator” and “a nasty person”. The applicant sought to be discharged when he “couldn’t take anymore”: his reasons for seeking a discharge were not accepted.

13. On 8 January 1973 the applicant was posted to HMAS Melbourne. The applicant suspected that claims that he made while serving on HMAS Albatross had been noted on his file and he felt that he was adversely affected as a result. The applicant was given duties in the electrical switchboard of the aircraft carrier. The applicant considered that these duties were not appropriate for his previous training as a radar electrician and that he was assigned to the role to make him “look really bad”.

14. On 23 August 1970 the applicant was discharged as unsuitable. The applicant did not cite bullying as a reason for his request for a discharge because he perceived reporting such occurrences was unacceptable at the time to the point that “life won’t be worth living” if you did so.

15. In the years following his discharge from the Navy, the applicant reported feeling unwell to his medical practitioner on a number of occasions. In 1976 and again in 1980 the applicant was tested for ulcers with a negative finding. It was not until 1983 that the applicant attended an appointment with a psychologist at Redcliffe Community Health. In 1986 Dr Majumdar diagnosed the applicant as having a mental health condition.

16. In 1987 the applicant collapsed and was admitted to hospital. Six months later the applicant was in what he described as a “deep depression” and a “physical breakdown”. The applicant was “in and out of depression” for the following fifteen years. He stated that it was not until he was almost 50 that he “was back on the planet again”.

17. In 2009 the applicant was made aware of the ability of current and former members of the Australian Defence Force to claim for rehabilitation and compensation.

18. In his statement dated 13 May 2013, the applicant summarised his primary reasons for the delay in lodging the claim: the service culture pertaining to loyalty; the distrust of the complaint handling process; embarrassment; social acceptance and education of abuse claims; little knowledge of the DVA system and isolation; and long term illness.[3]

    
    
    

    [3] Exhibit D, Statement of Peter Kleidon dated 12 September 2014.

    MEDICAL EVIDENCE

19. There is specialist medical evidence that the applicant has suffered and continues to suffer mental health conditions.

20. Dr Majumdar, consultant psychiatrist, in his report of 3 April 2014, expressed the opinion that “on the balance of probabilities that Mr Kleidon’s condition of generalised anxiety disorder was caused by his military service and gradually got worse over time”.[4] Dr Majumdar based his conclusion on the fact that the applicant had indicated to him that his problems started during the first 12 months of his navy service and during that service he was subjected to bullying and harassment and was beaten physically by recruits.

    [4] Exhibit A. T-Documents, T18 at p. 112.

21. Dr Lawford in his report of 13 May 2015 diagnosed the applicant as suffering from generalised anxiety disorder and recurrent major depression. Dr Lawford has concluded that the onset, aggravation and exacerbation of these conditions occurred when the applicant was posted to HMAS Albatross and because he was functioning well in the RAN prior to then.[5]

    [5] Exhibit B, Medical Report of Dr Bruce Lawford dated 13 May 2015 at p.3.

22. Dr Varghese in his report of 13 May 2015 has diagnosed the applicant as suffering from a dysthymic disorder occurring in the context of personality vulnerability.[6]  Dr Varghese has concluded that the applicant’s psychiatric problems have not been contributed to in a material degree by any aspect of his employment in the RAN.[7]

    [6] Exhibit H, Medical Report of Dr F T Varghese dated 16 January 2015 at pp. 20-21.

    [7] Ibid at p. 21.

    CONSIDERATION

23. This claim relates to events that are alleged to have occurred from the applicant’s enlistment in 1970 and before his discharge in 1973. I have to consider whether compensation was, or would have been payable to the applicant in respect of that injury, loss or damage under the 1971 Act: see s 124(1A) of the 1988 Act.

24. The evidence before me is that the applicant did not satisfy the notification requirements in s 53(2)(a) and (b) of the 1971 Act. This is because there is evidence that the applicant was aware of his psychiatric condition for some time before the date of claim. The applicant was aware in 2009 that he could make a claim for compensation but did not then make a claim for a number of reasons. It was not until 2012 that the applicant made a claim for compensation. I cannot therefore find that the claim of the applicant was made as soon as practicable after the occurrence of the injury under s 53(1)(a) of the 1971 Act.

25. The respondent would be prejudiced by the delay in lodging the claim (see s 54(6)(c) of the 1971 Act). An earlier claim would have enabled the medical condition of the applicant to be investigated and any necessary treatment afforded to the applicant. Over the period of nearly forty years since his discharge he may have had an experience which could have contributed to his condition. The respondent could have investigated a claim if it had been lodged earlier and interview any relevant personnel.

26. There is no evidence that the delay in the claim was occasioned by any of the matters specified in s 54(6)(c) of the 1971 Act.

27. I should also state that the claim of the applicant could not succeed even if there were no statutory obstacles to the applicant being awarded compensation. The opinions of Dr Majumdar and Dr Lawford that the conditions of the applicant are attributable to his naval service are based on the self-report of the applicant. I do not rely on those opinions as that self-report is inconsistent with the contemporaneous documentary evidence from 1986 and 1987.  The instances of physical and psychological abuse that the applicant now complains of were not referred to in those reports. In these circumstances I do not regard it as plausible that the instances of physical and psychological abuse that the applicant now complains of did materially contribute to his psychiatric conditions.

28. In 1986 the applicant was examined by Dr Majumdar who then concluded that the applicant suffered from depression with anxiety phobia state in the setting of neurotic personality.[8] In that respect the opinion that the applicant had personality difficulties was consistent with the opinion of Dr Varghese.  Dr Majumdar in his report of 30 September 1986 examined the past employment of the applicant. Whilst that report referred to difficulties that the applicant experienced with his past employment including his naval service, the examination of the naval service of the applicant by Dr Majumdar did not then outline any difficulties with the applicant being subjected to bullying and harassment and being beaten by other recruits.

    [8] Exhibit E, Medical Report of Dr A Majumdar dated 30 September 1986.

29. In 1987 the applicant was an inpatient in Prince Charles Hospital for two days, he was then under the care of Dr George, consultant psychiatrist. A report of Dr Khoo dated 7 August 1987 outlines the contributing influences to the condition of the applicant.  In that report Dr Khoo stated that the applicant left the navy because he felt that the position he held had no future for him.[9] That observation is consistent with the RAN discharge records which indicated that the applicant sought discharge so that he could undertake matriculation studies.[10] There was then no suggestion in that report of Dr Khoo that the applicant was affected by the alleged bullying, harassment and beatings whilst he was in the RAN.[11]

    [9] Exhibit F, Medical Report of Dr M L Khoo dated 7 August 1987.

    [10] Exhibit A. T-Documents, T18 at pp. 56, 58-60.

    [11] Exhibit F, Medical Report of Dr M L Khoo dated 7 August 1987.

30. Dr Varghese in his report of 13 May 2015 concluded that the psychiatric problems of the applicant have not been contributed to in a material degree by any aspect of his employment in the RAN.[12] The report of Dr Varghese contains a careful review of all of the available medical evidence. In his report Dr Varghese points out that the good academic performance of the applicant is not in keeping with the applicant suffering any psychiatric difficulties at HMAS Leeuwin. The 1971 records makes reference to the “pleasing results” that the applicant obtained at his passing out exams having obtained passes in 4 L.E.T. subjects. Dr Varghese has pointed out that the applicant had a successful career after his discharge. I rely upon this comprehensive report.

    [12] Exhibit H, Medical Report of Dr F T Varghese dated 16 January 2015 at p. 21.

1. The applicant has tendered a Legal Services Direction under the Judiciary Act 1903 (Cth) dated 4 May 2016.[13] That direction applies where a claim is brought against a Commonwealth agency by way of originating process in an Australian court and does not apply to proceedings in this Tribunal.

   [13] Exhibit I, Legal Services Direction dated 4 May 2016.

   DECISION

2. I affirm the decision under review.

I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President McDermott

.............................[sgd]...........................................

Associate

Dated 3 June 2016

Date(s) of hearing

17-18 August 2015; 1 June 2016

Date final submissions received

19 May 2016

Advocate for the Veteran

Ms S Baker, Returned Services League of Australia, Queensland Branch, Redcliffe Sub-Branch Inc

Counsel for the Respondent

Solicitors for the Respondent

Mr C Clark

Ms S Dole, Sparke Helmore Lawyers