Larsen and Military Rehabilitation and Compensation Commission

[2005] AATA 487

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 487

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          NoQ2005/30

VETERANS’ APPEALS DIVISION		)
Re		MICHAEL LARSEN

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Ms MJ Carstairs, Member

Date30 May 2005

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

…….[Sgd].............

MJ Carstairs
  Member          

CATCHWORDS

COMPENSATION – injuries occurring prior to commencement of Safety, Rehabilitation and Compensation Act 1988 – transitional provisions – notice of injury not given as soon as practicable under Commonwealth Employees’ Compensation Act 1930 – Commonwealth prejudiced by want of notice – failure to make claim within specified period due to ignorance

Safety, Rehabilitation and Compensation Act 1988 s124

Commonwealth Employees Compensation Act 1930 s16

Tierney v Reserve Bank (1988) 15 ALD 534
Banks v Comcare, Federal Court, 22 May 1996, 118/94
Re Willis and Australian Postal Commission (1989) 19 ALD 665
Telstra Corporation v Roycroft (1997) 77 FCR 358; (1997) 47 ALD 671
Commonwealth of Australia v Connors (1989) 86 ALR 247

REASONS FOR DECISION

30 May 2005 Ms MJ Carstairs, Member

1.      This is an application by Michael Larsen (the applicant) for review of a decision made by a delegate of the Military Rehabilitation and Compensation Commission (the respondent) on 14 December 2004. The delegate affirmed an earlier determination made on 8 November 2004 to refuse the applicant’s claim for compensation.  A key issue that the Tribunal must decide is whether the applicant may now claim, relying upon events occurring during the applicant’s fourteen month’s service with the Australian Army between 30 April 1968 and 23 June 1969,  when there are strict time limits imposed by the legislation for making claims.

2.      At the hearing on 19 May 2005 to consider the question of whether the applicant complied with s16(1) of the Commonwealth Employees’ Compensation Act 1930 (the 1930 Act), the applicant represented himself. The respondent was represented by Ms E Ford of counsel, instructed by Phillips Fox solicitors.

3.      The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975, as well as exhibits A1 for the applicant and R1-R2 for the respondent.

BACKGROUND

4.      Mr Larsen was born on 17 March 1948.   On 30 April 1968 at the age of twenty he voluntarily enlisted for a period of two years’ national service with the Australian Army.  He was discharged on 23 June 1969 at the age of twenty-one.

5.      On 3 March 2004 (T40) the applicant lodged his claim for compensation for an emotional and behavioural condition.  This was rejected by the first delegate because there was no evidence that the applicant’s condition was caused, aggravated, or accelerated by his army service.  The reconsideration delegate (T51) decided that the claim could not be considered because the legislation at the time of the events relied upon, required notice of an accident within six months of the event.  This had not occurred.   

6.      Mr Larsen applied to the Tribunal for review of the decision on 17 January 2005.  The issue for the Tribunal is whether the circumstances of the applicant meet any of the requirements in the legislation that, in a limited range of circumstances, allow compensation claims to be made and notice given of injury, after the time limits in the legislation have expired.

EVIDENCE

7.      In a report dated 6 July 2004 (T48) Dr M Athey diagnosed Mr Larsen as having a recurrent chronic major depressive disorder with a possible bipolar affective disorder, and the suggestion of some manic episodes during army service.  He said that although major depression or bipolar disorder were not diagnosed during service the medical notes at the time suggested the presence of those disorders.

8.      In a written statement dated received 19 November 2004 (T50), the applicant said that during his army service he experienced verbal abuse from superiors that was ignored by those in positions of authority.  He stated his belief that such abuse can lead to mental illness.   In a letter dated-stamped as received by the respondent on 25 March 2004 (T43), the applicant stated that he had not been aware that he was able to claim for his medical condition.  He stated that he had received medical treatment from 1972 and that his psychiatric condition had deteriorated over a period of thirty-five years. 

9.      In a statutory declaration dated 11 March 2005 (exhibit A1) Mr Larsen said that he had not applied earlier than 2003 because he was not informed at the time of his discharge from the army that he was entitled to help, even though the army was aware then that he had a mental problem.  He said that when he returned to civilian employment he experienced conflict with others, had difficulty maintaining friendships, and could not understand why his personality had changed from the person he was before he enlisted in the army.  He said that despite writing to Members of Parliament and to the Department of Veterans’ Affairs during the 1990’s, he received no assistance.  In his oral evidence he said that he received no replies to the letters he had sent to Members of Parliament and had made only informal enquiries when he was working at the RAAF base at Amberley about accessing pensions from the Department of Veterans’ Affairs. When his enquiry was misunderstood as one related to a war service home loan he did not take the matter further.  It was not until a friend suggested in 2003 that he have a go that he pursued his claim.

10.     The applicant’s service medical records were in the T-documents and included the following reports or clinical notes:

§  T32: Outpatient record dated 31 October 1968 :

This pt has had a number of emotional crises which stem, I think, from his personality type.

15/10/68        Recently in strife because of his resentment of authority or rejection.  This attitude has been present over the past 11 years because of difficulty in accepting parental authority

§  T33: Outpatient clinical notes 28 November 1968

28/11/68        Wants to get out of army.  9/12 in army. …..

Losing temper more since coming to B’ne…

Opinion: poor tolerance of authority due to personality trait problems.  His hostility could probably best be kept under control by keeping him in out door work.

11.     Mr Larsen’s discharge was on non-medical grounds.  His certificate of discharge (T39) recorded as the reason for discharge: Unsuitable for further service (Non disciplinary).   A document headed Notification of Medical Assessment dated 26 June 1969 recorded: unfit mental stress.  Mr Larsen’s Final Medical Board examination, dated 4 June 1969 (T36) recorded as part of the medical history that the applicant was seen by Dr Proctor, medical officer, and Dr Steinhenge, psychiatrist, in November 1968 who noted his poor tolerance of authority.  He was referred to Dr Vickery, psychiatrist, after threatening an officer with a bayonet.  The opinion of the Medical Board at the time of Mr Larsen’s discharge was that he suffered a personality defect, of constitutional origin.

12.     In a medical report dated 8 January 2004 (T41), Dr S Jenkins, consultant psychiatrist, stated that Mr Larsen had attempted suicide in 1972, 1980 and 1993 and this pattern suggested a diagnosis of recurrent major depression, which he said was likely to have commenced prior to his discharge from the army, though he did not state the basis for his opinion on this.  Dr R Athey (T48) agreed on diagnosis, but considered that Mr Larsen would have developed the condition even without his army service.

13.     In an affidavit dated April 2005 (Exhibit R1), Mr P Ontong, Director of Appeals at the Military Rehabilitation and Compensation Commission stated that the applicant was required under the 1930 Act to give notice of the contraction of a disease as soon as practicable after becoming aware of the disease.  He said that the applicant’s delay of thirty-five years prejudiced the respondent, as the opportunity was lost to verify or properly investigate the circumstances that are said to give rise to the claim. He stated that it was likely that the records of treating doctors in the intervening years would have been destroyed given the lapse of time.      

CONSIDERATION OF THE ISSUES

14. Section 124(2) of the Safety, Rehabilitation and Compensation Act 1988 (the 1988 Act), provides that a person is not entitled to compensation in respect of an injury suffered before 1 December 1988 if compensation was not payable in respect of that injury under the Act in force as at the date of injury.  The Act in force when Mr Larsen undertook military service was the Commonwealth Employees’ Compensation Act 1930 (the 1930 Act).

15.     Section 124(10) of the 1988 Act provides:

Where:

...

(b) a claim for compensation by a person under the 1930 Act, in respect of an injury suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act, was not admissible because of section 16 of the 1930 Act; 

...

that person is not entitled to compensation under this Act in respect of that injury.

16. Sub-section 16(1) of the 1930 Act set out the timeframes for giving the notice of and for making a claim for compensation as follows:

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...

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 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. …

17.     Sections 16(2) and (3) set out further detail of what is proper notice and require that the person must provide the particulars of the injury; its cause expressed in ordinary language; and require also that the notice must be served to authorised persons.  If Mr Larsen is unable to meet the requirements of s16 of the 1930 Act his claim cannot be considered under the 1988 Act.

18.     Mr Larsen submitted that the Tribunal should exercise the discretion to allow his late claim because he had not been advised about his rights at the time of his discharge from the army.   He acknowledged that this meant that he was ignorant of his rights but he said that government officials with a duty of care to inform him properly of his rights at the time were ignorant as well.  Mr Larsen submitted that his history of medical treatment after his army service supported his case for having other reasonable cause for failure to claim, because he was not in the right state of mind to deal with these issues.

19.     Ms Ford referred to s16(1) of the 1930 Act and said that it was undisputed that no claim had been lodged within the six months required under the 1930 Act and that a delay of thirty-five years in lodging the claim or giving notice of injury resulted in prejudice to the respondent. She submitted that the Tribunal should apply Tierney v Reserve Bank (1988) 15 ALD 534; Banks v Comcare Federal Court, 22 May 1996, 118/94; and Re Willis and Australian Postal Commission (1989) 19 ALD 665 and decide that Mr Larsen’s claim now should not be allowed. She referred also to the distinction between ignorance and mistake as referred to in the Federal Court decision in Telstra Corporation v Roycroft (1997) 77 FCR 358; (1997) 47 ALD 671 and said that the reasons advanced by Mr Larsen were those of ignorance about his rights and the law, not mistake.

20.     In reaching its decision, the Tribunal takes into account the written and oral evidence and submissions made at the hearing. The Tribunal accepts that the applicant has had continuing problems over many years arising from his medical condition.  The Tribunal also accepts Mr Larsen’s evidence that he struggled with his senior school studies, and experienced problems achieving proficiency in courses studied during his army service because of literacy and numeracy problems, but was not aware of having psychiatric problems before he joined the army.  The Tribunal was satisfied that there are entries in Mr Larsen’s army medical records which show that psychiatric problems, however described, manifested themselves during his army service. That on its own does not mean that army service necessarily caused or aggravated the condition.  However, this is not a question that the Tribunal needs to address at the preliminary stage.   

21.     These medical entries during army service do not constitute the notice required under s16 of the 1930 Act.  An entry about a medical examination during service will not suffice as the notice for the purposes s16 of the 1930 Act when account is taken of the detailed requirements about content and service of notice as set out in s16(2) and 16(3) of the 1930 Act . The Tribunal finds that Mr Larsen first complied with the requirements of giving notice when he filed his claim forms in 2003.  However, the delay of thirty-five years in lodgement of the claim has deprived the respondent of any reasonable possibility of carrying out appropriate medical examinations, or gathering other information from contemporary sources that would establish the relationship, if any, between Mr Larsen’s currently diagnosed depressive condition and the circumstances of his service.  The Tribunal finds that the respondent would be prejudiced by the want of notice of an injury said to date from 1968/69 given the time that has elapsed, as it could not be expected that events could be recalled after such a long period, even if persons involved with them could be located. 

22.     The Tribunal takes into account that the applicant continued to suffer problems in his civilian life and sought professional help in 1972 and thereafter.  In relation to mistake, the Tribunal accepted the submission that s16 of the 1930 Act recognises only mistake and not ignorance.  Ignorance as a ground for delay in making a claim was introduced into subsequent legislation but is not a ground in the 1930 Act.  In Telstra Corporation v Roycroft  the Court considered the decided cases and stated, noting the thin line between mistake and ignorance:

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 and aspect of it, and consequently does not know whether or not it applies, then the person is ignorant.   

23.     The Tribunal was satisfied on the evidence given orally and in writing that Mr Larsen was ignorant of, not mistaken about, his rights to claim compensation.  His evidence was that he was not given information at his discharge.  There was no evidence that he acted from mistake as discussed in Telstra v Roycroft.  The Tribunal was satisfied that the reason Mr Larsen did not give the necessary notice was that he was ignorant of his rights, including for the reason that he was not told about these at his discharge.   This applies also to his failure to lodge a claim, as reflected in his consistent statements on this in the written materials.  

24.     Mr Larsen now asserts in submissions that his psychiatric illness was a further reasonable cause that brings his case within the exemptions provided in s16(1)(ii) of the 1930 Act. On what constitutes other reasonable cause, the Tribunal has in other cases referred to the need for a nexus between the reasonable cause and the delay.  There was limited medical evidence presented, but it does confirm that Mr Larsen’s psychiatric condition is recurrent and episodic.  He has been able, within the time since his army service, to sustain a range of employment while suffering with his condition (reflected in his statement at T46 and the summary of his occupations in Dr Athey’s report), until qualifying for disability support pension in 2004.

25.      When Mr Larsen left the army he returned to his civilian employment.  On his evidence he was aware that he had an anger management problem as he experienced conflict in the workplace and left, obtaining other employment it seems quite easily.  Thus, Mr Larsen was aware that he had a problem, however it was properly described in medical terms.  From his evidence it seems that he did not seek treatment until some time later, in the early 1970’s.  The Tribunal concluded that Mr Larsen was able to function reasonably in employment and in his day-to-day life in the period after his discharge and the Tribunal does not accept that the medical condition itself operated throughout the time to provide the grounds for reasonable cause for a delay.   

26.     The Tribunal also noted that in Commonwealth of Australia v Connors (1989) 86 ALR 247, the Court said that ignorance in the sense of a failure to advert to the existence of a right, cannot itself constitute reasonable cause.  The Tribunal was satisfied that the underlying reason for Mr Larsen not making a compensation claim was that he did not know that he could do so. 

27.     For these reasons the Tribunal finds that the reasons given by the applicant for failing to serve notice of the injuries as soon as practicable after they happened, or within six months of their occurrence, and for failing to make the claim within six months of the occurrence of the injury, do not constitute a reasonable cause for the purposes of the 1930 Act.  

28.     On the available material the Tribunal finds that, at the time of his first experiencing the medical condition, at the time of his discharge from the army and until 2003 the applicant was not aware of his entitlement to claim compensation. There was no mistake, relevant absence from Australia, or other reasonable cause. Therefore Mr Larsen does not satisfy s16(1) of the 1930 Act and he cannot succeed in his application. As a result, there is no need for the Tribunal to reconvene the hearing to consider medical evidence concerning Mr Larsen’s depressive disorder.

DECISION

29.     The Tribunal affirms the decision under review.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Ms MJ Carstairs, Member

Signed:         Denise Burton

Administrative Assistant

Date of Hearing  19 May 2005  
Date of Decision   30 May 2005
The applicant appeared in person
Counsel for the Respondent     Ms E Ford
Solicitor for the Respondent     Phillips Fox