Larsen and Military Rehabilitation and Compensation Commission

[2006] AATA 1515

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 1515

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/286

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ALAN  LARSEN

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal

Senior Member M D Allen

Dr J Campbell, Member

Date of Decision  3 October 2006

Date of Written Reasons              7 February 2007

Place  Sydney

DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the matter is adjourned to a date to be fixed.

(Sgd) M.D. ALLEN
  ...........................................
  Presiding Member

CATCHWORDS

WORKERS COMPENSATION – preliminary matter – whether Applicant is statute-barred from lodging a claim – whether Respondent prejudiced by Applicant’s delay in lodging claim – aggravation by military service of claimed conditions – no medical examination or advice given regarding entitlements during service – Tribunal satisfied that claim should be permitted – matter adjourned to a date to be fixed

Commonwealth Employees Compensation Act 1930 (as amended) – s 4, 6, 16

Safety, Rehabilitation and Compensation Act 1988 – s 124

Re Wright v The Commonwealth of Australia (1987-1988) 14 ALD 567

Johnson v The Commonwealth (1982) 43 ALR 559

REASONS FOR DECISION

7 February 2007 Senior Member M D Allen
Dr J Campbell, Member     

1.      At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally.  After service upon the Applicant and Respondent of a copy of the decision that was in fact made, the Respondent pursuant to sub-section 43(2A) of the Administrative Appeals Act 1975, requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3.      The said transcript is annexed thereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal’s decision.

I certify that this and the preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen

Signed:     [Amanda Aitken]            .....................................................................................

Associate

Date of Hearing  3 October 2006
Date of Decision  3 October 2006
Date of Written Reasons                   7 February 2007

Solicitor for the Applicant                   Wyatt Attorneys

Solicitor for the Respondent              DLA Phillips Fox

Counsel for the Respondent             Mr B Kelly

DRAFT DECISION  [2.01pm]
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2006/286
By MR M.D. ALLEN, Senior Member
LARSEN and MILITARY REHABILITATION AND COMPENSATION COMMISSION
SYDNEY, 3 OCTOBER 2006

MR ALLEN:   By application made the 11th day of March 2006, the applicant sought review of a reviewable decision made by the respondent on 15 February 2006 refusing his claim for varicose veins and associated conditions.  The matter came on before this Tribunal today as a preliminary matter in that the respondent claimed that the applicant should be statute-barred from bringing his claim pursuant to section 16 of the Commonwealth Employees Compensation Act 1930 (as amended). That Act became relevant because the events giving rise to the claim occurred whilst the applicant was undergoing three months national service training in or about 1954, followed by three years service with the Citizen Military Forces. Section 124 of the Safety Rehabilitation and Compensation Act 1988 provides inter alia that unless the applicant can succeed in this case under the 1930 Act then he cannot succeed under the 1988 Act.  Subsection (1) of section 16 of the 1930 Act reads, inter alia, that:

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.

Whereas subsection (4) of section 16 refers to:

An employee who is suffering from a disease.

And that provides in paragraph (a)(2):

Any claim shall be brought as soon as practicable after the employee first became aware that he was suffering from the disease and that a claim shall be brought within six months after the employee first became aware he was suffering from the disease.

Varicose veins is obviously a disease and that term “disease” is defined in section 4 of the Act as:

Including 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.

Now, in this particular matter it would appear that the applicant, although aware he was suffering from varicose veins when he entered into military service, did not become aware of a possibility that that military service had aggravated the condition until in or about 2003 when advised by a medical practitioner.  As provided by section 16 he must now, considering the length of time and the fact that there was no notification of the disease at the time, or no claim within six months after having become aware of the disease, satisfy the Tribunal that the respondent is not prejudiced by that delay in making the claim.

Having regard to the statement by Mr Paul Reece and, indeed, by the very effluxion of time in this matter, it is quite clear that the respondent is prejudiced by the delay in bringing the claim.  However, the word “or” is used and the Tribunal must also be dissuaded that the delay in bringing the claim was occasioned by mistake, absence from Australia or other reasonable cause in order for the claim to proceed.  Certainly the failure to bring the claim within time was not occasioned by mistake.  The applicant states that he did not and was not aware of his ability to bring a claim, but that is a matter of ignorance and not mistake.  He was not absent from Australia and therefore we must consider whether a claim was not brought because of some other reasonable cause.

There is cause pointed to, as we understand it, that following his military service the symptoms simply continued and it was not until he received medical advice in or about 2003 that he was aware of the possibility of aggravation.  At the time he was in the military he was not informed of the ability to bring a claim for compensation and likewise, at the end of his military service and indeed for the whole time he was in the Citizen Military Forces, he was not medically examined.  It seems to us that the factors relating to the lack of any medical examination whilst in the Citizen Military Forces, and the fact that he was not advised by the military at the time of his service that he did have entitlements under the Safety, Rehabilitation and Compensation Act 1930, brings him within the provisos to section 16 and the claim should be permitted.

We have had great doubts about the viability of the applicant’s claim.  As was pointed out by Senior Member McMahon, as he then was, in Re Wright v The Commonwealth of Australia (1987-88) 14 ALD 567 at pages 569-570:

A contribution is not within the terms of the 1930 Act and if the applicant’s claim is based upon a contribution then it must necessarily fail. 

So far as an aggravation is concerned, although it was under the 1971 Workers’ Compensation, as was pointed out in Johnson v The Commonwealth (1982) 43 ALR 559 at 565:

An aggravation means an increase in the severity of a disease.

Or, as was said by the majority at 564:

The concept of aggravation implies a worsening rather than an autogenous disease taking its natural course.

We have grave doubts if the applicant can make out a case under those provisions, but as we are presently advised it would seem that he has an entitlement to at least attempt to make out a case, so that the only decision of this Tribunal at the moment is that this matter is adjourned to a date to be fixed.