Manning and Comcare
[2014] AATA 240
•24 April 2014
[2014] AATA 240
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/4619
Re
Grant Manning
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 24 April 2014 Place Sydney The decision under review is affirmed.
...........................[SGD].............................................
CATCHWORDS
WORKERS’ COMPENSATION—Requirement to give written notice of injury as soon as practicable—Whether failure to give notice resulted from a mistake or ignorance—Whether failure to give notice resulted from any other reasonable cause—Whether failure to give notice results in prejudice to the Respondent
LEGISLATION
Commonwealth Employees’ Compensation Act 1930 (Cth) – s 16
Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) – s 53Compensation (Commonwealth Government Employees) Act 1971 (Cth)
CASES
Frosch v Comcare [2004] FCA 1642
Hunt and Military Rehabilitation and Compensation Commission [2010] AATA 259
Peter John Banks v Comcare Australia [1996] FCA 1490
Re Anstee and Comcare [2012] AATA 731
Telstra Corp v Robert Thomas Roycroft [1997] FCA 774REASONS FOR DECISION
Senior Member A K Britton
24 April 2014
Grant Manning was employed by the Australian Federal Police (AFP) between 1973 and 1990. He seeks review of the decision made by Comcare to refuse to accept liability for an alleged injury to his lower back said to have been sustained during an AFP training day in 1990. Mr Manning’s first claim in respect of that incident was made in 2013.
One of the stated grounds given by Comcare for refusing to accept that claim was Mr Manning’s alleged failure to give notice in writing of injury “as soon as practicable” as required by the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) (the 1988 Act). Section 53 of the Act provides:
Notice of injury or loss of, or damage to, property
(1) This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:
(a)as soon as practicable after the employee becomes aware of the injury;
….
(3) Where:
(a)a notice purporting to be a notice referred to in this section has been given to the relevant authority;
(b)the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and
(c)the relevant authority 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 taken to have been given under this section.
Mr Manning contends that he complied with the requirement to provide notice in writing of the injury “as soon as practicable”. In the alternative, he contends any failure to give timely written notice (which is not conceded) should be excused because the relevant authority would not be prejudiced by that failure, and/or the failure resulted from ignorance, a mistake, and/or other reasonable cause. Comcare disagrees.
Whether, by the operation of s 53 of the 1988 Act, the notice requirement is taken not to apply to the alleged 1990 injury turns principally on the following issues:
·Whether any of the medical certificates given by Mr Manning to the AFP in 1990, constitute “notice in writing of the injury”.
·If not, whether Comcare would be prejudiced by Mr Manning’s failure to give timely notice? or
·Whether Mr Manning’s failure to give timely notice resulted from ignorance, a mistake or any other reasonable cause?
Background
In a statutory declaration prepared in March 2013 in support of his claim for compensation, Mr Manning stated that during a training day in 1990 he hurt his back while playing indoor cricket. He stated that after being assisted by colleagues back to his usual place of work, Sydney airport, he told his supervisor, Inspector Mathews, that he had hurt his back “real bad”. He stated that Inspector Mathews replied “I am sick and tired of you people getting injured during training days, I’m going to can the bloody thing”. According to Mr Manning, Inspector Mathews appeared upset. As Mr Manning recalls Inspector Mathews took on the role of supervising police at Sydney airport in late 1988/early 1989 and was not enthusiastic about the regular training days, which had been introduced by his predecessor. Inspector Mathews has left the AFP. Both parties attempted to locate him without success.
Mr Manning stated that he reported his conversation with Inspector Mathews to a colleague, Senior Constable Andrew Cox: “[Inspector Mathews] was not happy at all and I don’t know what to do”. In a statutory declaration dated 5 March 2013, Mr Cox confirmed that Mr Manning had told him that he hurt his back playing cricket on a training day. Mr Cox also wrote that he was nearby when Mr Manning informed Inspector Mathews of “the incident” and that Mr Manning told him that Inspector Mathews had replied that “too many people are getting hurt and he was going to put a stop to these training days”. Mr Cox stated that he recalled advising Mr Manning to report the incident and make a note in the “occurrence book”.
Mr Manning admitted in these proceedings that while employed by the AFP he was aware of the requirement to give timely written notice of any injury. In oral evidence he gave as a reason for not doing so on this occasion, his concern that Inspector Mathews might give him a desk job and cancel the training days. He stated that Inspector Mathews was a “nice fellow … [but] he felt intimidated by him and most senior officers”.
Mr Manning wrote that at the time, he thought his back injury was acute and “would come good”. He stated he went to see his GP, Dr Archie Jacobsen (now deceased), and was given an injection, prescribed pain medication, referred for a CT scan and certified unfit for work for two weeks.
In a statutory declaration dated 27 November 2012, Mr Manning’s then partner and colleague, Barbara Briggs, wrote that she recalled being told by Mr Manning in or around the first half of 1990 that he had injured his back at work and observing swelling on one side of his lower spine which “appeared to be out of alignment”. She recalled asking Mr Manning whether he had reported the incident but could not recall his reply.
Mr Manning took a voluntary redundancy from the AFP in June 1990. After leaving the AFP he commenced employment with Marrickville Council as a pool attendant. In early 1994 while lifting a block of cement, he injured his back. The Council’s insurer accepted liability for that injury. In September 1994 Mr Manning underwent a L3/4 and L4/5 laminectomy. He is troubled by his back to this day.
In a statutory declaration dated 11 March 2014, Hector Thompson, wrote that while employed at Marrickville Council in 1993 and 1994, Mr Manning told him his back problems were the result of a training accident that occurred while employed with the AFP.
Did Mr Manning give notice in writing as soon as practicable?
Mr Manning contends that by providing medical certificates to the AFP shortly after the injury, he complied with the requirement to give notice in writing as soon as practicable.
In answer to a notice issued under s 71(2) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act), the AFP produced to Comcare a number of documents relating to Mr Manning’s claim for compensation. These include Mr Manning’s sick leave records, which reveal that in 1990 he was absent from work on:
·20March1990 without medical certificate for ‘back injury’
·22March1990 with medical certificate for ‘slipped lumbar vertebra’
·23March1990 to 9April1990 with medical certificate for ‘sciatica’
·15May1990 to 18May1990 with medical certificate for ‘acute lumbar disc’.
The AFP advised Comcare that having searched its records it was unable to locate any document indicating that Mr Manning had reported a back injury at work in 1990. According to the AFP, none of the above medical certificates, nor Mr Manning’s “official diary” or the “occurrence book” — a diary kept by the AFP, in which officers were required to record significant events — could be located.
As pointed out by Mr Manning, the requirement imposed by s 53 of the 1988 Act is for the employee to give notice in writing. There is no requirement that the notice be in any particular form. In Frosch v Comcare [2004] FCA 1642, Whitlam J considered whether the tribunal had erred in finding that a certificate issued by Mr Frosch’s treating doctor constituted a notice for the purpose of s 53 of the 1988 Act. His Honour observed at [8]:
The specification required for such a notice [under s 53] is dictated by the words ‘injury’ and ‘employee’, which are defined respectively in s 4(1) and s 5 of the Act. … [The effect of those provisions] is that the essential information to be imparted under s 53 will be the nature of an injury or ailment and its connection with the employment.
On the available material it is not possible to say what information was contained in the three medical certificates submitted by Mr Manning in 1990, apart from the condition diagnosed and the period he was certified unfit for work. There is no direct evidence, and nor in my opinion could the inference be drawn, that any contained a reference to employment, or, the training day incident. Indeed Mr Manning’s own evidence — that he made a conscious decision not to submit a written notice because of the possible repercussions — tends to suggest that it is unlikely that the certificates mentioned employment.
As pointed out by Whitlam J in Frosch, to constitute a notice for the purpose of s 53 the document must impart, among other things, information about the “connection with the employment” of the injury or ailment. On the available material I could not be satisfied that any of the three medical certificates imparted such information.
I am not satisfied that any of the three medical certificates constitute a notice for the purpose of s 53 of the 1988 Act. It follows that Comcare was first given written notice of the injury when Mr Manning made a claim for compensation in 2013. Self-evidently the requirement to give written notice “as soon as practicable” was not satisfied.
Did Mr Manning’s failure to give notice in writing of the injury as soon as practicable after the injury result from ignorance or mistake?
Notice shall be taken to have been given if the failure to comply with the requirement to give notice of injury as soon as practicable resulted from ignorance, from a mistake, or, from any other reasonable cause (s 53(3) of the 1988 Act).
As outlined above Mr Manning claims he did not give notice in writing of the injury while employed with the AFP because he:
(i)was intimidated by senior AFP officers, Inspector Mathews in particular, and concerned that if he made a written report of the injury, Inspector Mathews might cancel the training days and/or give him a desk job
(ii)believed his injury would probably resolve over time
(iii)mistakenly understood he was barred from making a claim for compensation unless timely written notice was given.
In an email to Comcare sent on 6 June 2013, Mr Manning wrote:
I … always thought that you had to report things at the time or there was no use reporting an injury. It was only recently when I saw a Law Report of someone who had a similar experience to me that I realised that I could still do something, and it is up to the relevant people to look at my case, based on its merit and evidence provided.
[In oral evidence Mr Manning identified Re Anstee and Comcare [2012] AATA 731 (24 October 2012) as one of the cases he had read in the law reports.]
Mr Manning admits to being aware at the time of the injury of the requirement to give timely written notice. The available AFP records reveal he did so in respect of four previous claims for workers compensation. I accept Mr Manning misapprehended until relatively recently that he was barred from making a claim for workers compensation if he did not give timely written notice of the injury. This might explain why he delayed making a claim for compensation, it does not explain why he failed to give notice of the alleged injury as soon as practicable. Section 53(3)(c) is directed at the reason the employee failed to give timely notice in writing of the injury not the reason for the delay in making a claim for compensation. In my opinion Mr Manning’s failure to comply with the requirement to give written notice as soon as practicable could not be said to have resulted from ignorance.
Nor in my opinion could it be said that the failure resulted from mistake. Mr Manning’s mistaken understanding of the law might explain why he delayed making a claim for compensation but does not explain why he did not give timely written notice of injury. (See Telstra Corp v Robert Thomas Roycroft [1997] FCA 774; (1997) 47 ALD 671 at 679 for an analysis of the meaning of "mistake" and "ignorance" in the context of s 54(1) of the Compensation (Commonwealth Government Employees) Act 1971 (Cth).)
Did Mr Manning’s failure to give notice in writing of the injury as soon as practicable after the injury result from “any other reasonable cause”?
Mr Manning contends that his failure to give timely written notice was also the result of feeling intimidated by his supervising officers and his belief that his condition was likely to resolve. This explanation requires consideration of:
(a)Whether Mr Manning’s claim of:
(i)feeling intimidated and bullied by his supervisor and being fearful that reporting the injury in writing might result in the cancellation of the training days, and/or
(ii)believing that the injury would probably resolve
can be accepted
(b)If so, whether Mr Manning’s failure to give timely written notice resulted from the above factors either separately, or in combination, and
(c)If so, whether those actions, either separately or in combination, constitute a “reasonable cause”.
The assessment of the veracity of Mr Manning’s claims is made difficult given the passage of time and the absence of any contemporary or supporting evidence. While possible that Mr Manning failed to give timely written notice for the reasons proffered in these proceedings, it is also possible that his recollection of events is inaccurate. This is not to suggest that Mr Manning gave untruthful evidence but rather to recognise that human memory is not always reliable, especially where as in this case, it relates to events which occurred over two decades ago and is not assisted by contemporaneous records.
While the evidence of Ms Briggs and Mr Cox corroborates Mr Manning’s account of injuring his back during a training day, it does not corroborate his claim of feeling intimidated by Inspector Mathews or, of not giving written notice of the injury for that reason. But in any event even if Mr Manning’s claim on this point is accepted I am not persuaded that it could be said to constitute a “reasonable cause”. In Peter John Banks v Comcare Australia [1996] FCA 1490, Keifel J considered the meaning of the term “reasonable cause” in the context of s 16 of the Commonwealth Employees’ Compensation Act 1930 (Cth), which is similar, but not identical, to s 53 of the 1988 Act. Her Honour said that an explanation for failing to give timely notice might be understandable but not necessarily a satisfactory explanation for that failure, observing (at [14]):
The expression "reasonable cause" has been held to refer to some act or omission which operated to prevent the giving of notice and one which, in the circumstances prevailing, is consistent with a reasonable standard of conduct, of such a nature that it might be expected to delay the giving of the necessary notice or claim: see Black v City of South Melbourne [1963] VicRp 7; (1963) VR 34, 38; Quinlivan v Portland Harbour Trust [1963] VicRp 5; (1963) VR 25, 28.
It is understandable that Mr Manning might have decided not to give written notice because he was fearful of the repercussions for both himself (being demoted to a desk job) and his colleagues (cancellation of the training days). However in my opinion the decision not to make a written report in those circumstances was inconsistent with a reasonable standard of conduct, especially given that Mr Manning was in no doubt that he was required to give written notice of injury at the first opportunity.
On the available evidence I am unable to accept Mr Manning’s claim that one of the reasons he decided not to make a timely written report of the injury was because he thought the injury to his back was acute and likely to resolve. That explanation is not mentioned in the statutory declaration he prepared in March 2013, provided to Comcare in support of his claim. Further it is unsupported and arguably inconsistent with other evidence including that given by Ms Briggs and the history Mr Manning gave to Dr Conrad Winer. Ms Briggs recalls Mr Manning suffering disturbed sleep after the reported injury and being in significant pain during an overseas flight. Dr Winer recorded being told by Mr Manning that following the injury he required time off work and three months of physiotherapy, and “never feeling confident with my back after that” (see report of Dr Winer, 14 May 2013). In addition, the AFP’s records indicate that in 1990 Mr Manning was off work on account of back problems for a not inconsiderable period: a total of 18 days.
While possible, on the available evidence I am not satisfied that one of the reasons Mr Manning failed to give notice in writing was because he thought there was little utility in doing so as his back injury was likely to resolve.
I am not satisfied that Mr Manning’s failure to comply with the requirement to give written notice as soon as practicable resulted from a “reasonable cause”.
Would Comcare be prejudiced if the notice given in 2013 was treated as a sufficient notice?
By the operation of s 53(3) of the 1988 Act the written notice of injury given by Mr Manning in 2013 will be treated as “sufficient notice” providing the relevant authority, namely Comcare, would not be prejudiced.
Counsel for Mr Manning contends that following the report made to Inspector Mathews, the AFP was on constructive notice that Mr Manning had sustained an injury and obliged to initiate inquiries and investigate the injury. Counsel contends that in failing to do so, the AFP was “wilfully blind” and in breach of its duty to Mr Manning as his employer.
Even if accepted that the AFP had a duty to investigate the injury after the verbal report given to Inspector Mathews, this is irrelevant to the question of whether Comcare would be prejudiced. Section 53(3)(c) is directed at the prejudice that might be suffered by the relevant agency, in this case, Comcare, not the employer.
Neither party has been able to locate any contemporary medical records relating to the 1990 incident. Despite the efforts of Mr Manning and Comcare, the records of the (now deceased) GP who Mr Manning saw after the injury and the CT scan apparently taken shortly after the incident, cannot be located. Of the available medical reports, the first to mention the 1990 incident is the report prepared by Dr Winer in April 2013.
In Hunt and Military Rehabilitation and Compensation Commission [2010] AATA 259, Deputy President Hack observed at [7] that it is “part of the stock in trade of a compensation authority to obtain and examine medical histories to determine whether the histories are consistent with the claimed injury and to see whether other factors may have caused or contributed to the injury claimed”. The Deputy President went on to say:
[T]he absence of an accident report and a claim for compensation had the consequence that there was no contemporaneous investigation, either factual or medical, of the circumstances of the incident. Moreover, it is part of the stock in trade of a compensation authority to obtain and examine medical histories to determine whether the histories are consistent with the claimed injury and to see whether other factors may have caused or contributed to the injury claimed. Without more, I would have regarded the absence of any investigation and the medical records as constituting a prejudice to the Commonwealth however I need not go that far.
As in Hunt, the absence of any contemporaneous report or medical records makes the task of determining what occurred during the 1990 incident and the nature of the injury sustained extremely difficult. I am not satisfied that Comcare is not prejudiced by Mr Manning’s failure to give timely written notice.
Summary
Mr Manning did not comply with the requirement to give notice in writing of the injury as soon as practicable. His failure to do so cannot be excused under s 53(3) of the 1988 Act. It follows that the 1988 Act does not apply in respect of the claimed injury and the decision under review must be affirmed.
I certify that the preceding 36 (thirty -six) paragraphs are a true copy of the reasons for the decision herein of ..............[SGD]..........................................................
Associate
Dated 24 April 2014
Date(s) of hearing 17 March 2014 Counsel for the Applicant Tim Flaherty Advocate for the Respondent Anella Bortone Solicitors for the Respondent Sparke Helmore
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