Molineux and Comcare
[2004] AATA 562
•7 May 2004
Administrative
Appeals
Tribunal
DECISION AND ORAL REASONS FOR DECISION [2004] AATA 562
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2002/480
GENERAL ADMINISTRATIVE DIVISION ) Re JACK MOLINEUX Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member WJF Purcell
Dr ET Eriksen (Member)Date7 May 2004
PlaceAdelaide
Decision For the reasons given orally at the Hearing of this matter, the Tribunal affirms the decision under review.
(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
COMPENSATION – claimed conditions allegedly sustained as a consequence of applicant’s employment as a labourer with the Weapons Research Establishment at Maralinga in 1956 – liability denied – applicant failed to comply with s 16 of Commonwealth Employees’ Compensation Act 1930 – failure to provide notice not occasioned by mistake, absence from Australia or other reasonable cause – decision affirmed
Commonwealth Employees’ Compensation Act 1930 s 16
Compensation (Commonwealth Government Employees) Act 1971 s 53Safety Rehabilitation and Compensation Act 1988 s 124
ORAL REASONS FOR DECISION
7 May 2004 Senior Member WJF Purcell
Dr ET Eriksen (Member)1. This is an application for review of a decision of a Review Officer of 9 December 2002, which affirmed a determination of 23 July 2002, that the respondent (Comcare) was not liable to pay compensation in respect of the applicant’s claimed "chronic obstructive airways disease, reflux, oesophageal, hypertension, deafness, gastrectomy, cataract, osteoporosis". The Review Officer stated, in part, as follows:
“1. Background
You were born on 15 March 1925 and were employed with Weapons Research Establishment at Maralinga on 19 September 1956, the exact tenure of your employment being unknown.
On 3 July 2001, you made a claim for compensation for “chronic obstructive airways disease, reflux, oesophageal, hypertension, deafness, gastrectomy, cataract, osteoporosis”.
You allege that you sustained the above conditions in or around 1956, while in the course of your employment with Weapons Research Establishment at Maralinga, namely that the noise of the atomic bombs was deafening and the heat of [sic] the back of your head was intense as a result of the atomic bomb explosions.
On 23 July 2002 Comcare determined that although the medical report from Dr Peter Chia dated 26 June 2002 indicated that the conditions claimed by you could be possibly related to your being at Maralinga in 1956, it was unable to find on the balance of probabilities that “chronic obstructive airways disease, reflux, oesophageal, hypertension, deafness, gastrectomy, cataract, osteoporosis” were related to your tenure at Maralinga. Therefore, Comcare found that you were not entitled to compensation pursuant to section 14 of the Safety, Compensation and Rehabilitation Act 1988 [sic].
On 28 July 2002 you requested a reconsideration of the determination dated 23 July 2002.
2. Reasons
In determining whether Comcare is liable to pay compensation to you in respect of your injuries which you allege relate to your employment with Weapons Research Establishment in 1956, I have considered the provisions of section 16 of the Commonwealth Employees’ Compensation Act 1930 (“the 1930 Act”) which sets out the notice requirements for making a claim under that particular Act.
Section 16 of the 1930 Act is applicable in this instance, on the basis that your alleged injuries occurred in or around 1956, and it was the 1930 Act which applied to Commonwealth employees at that time.
Section 16 of the 1930 Act states that a Commissioner shall not admit a claim for compensation under that Act for an injury unless notice of the accident has been served upon him “as soon as practicable after it has happened … and unless the claim for compensation has been made within six months from the occurrence of the accident”.
There is no indication that you provided any such notice of your injury at the time in which you allege you sustained your injury, namely in 1956, and on this basis, your claim should not be admitted.
Section 16 of the 1930 Act did not allow for circumstances in which a Commissioner may have considered a claim where notice had not been provided; namely where the failure to give notice “has been occasioned by mistake, absence from Australia or other reasonable cause”. In your case there is no indication that your circumstances would fall within any of these three categories.
Although you completed a Comcare “Information for delayed onset conditions” in September 2001, in which you claim that most of your symptoms appeared in 1963, this would not constitute a “mistake” within the meaning of that term under the 1930 Act. On the question of whether or not your claim of delayed onset would constitute a “reasonable cause” of your failure to make a claim, we note that in 1963, at the time you allege most of your symptoms appeared, there is no evidence that you gave any notice of your alleged condition at that time.
There is also no suggestion that you were absent from Australia for any significant period of time from 1956 onwards, such as to justify your failure to give the required notice pursuant to section 16.
I therefore find that as you have not given the required notice pursuant to section 16 of the 1930 Act, your claim should not be admitted.
Consequently, Comcare is not liable to pay compensation for your claimed condition of “chronic obstructive airways disease, reflux, oesophageal, hypertension, deafness, gastrectomy, cataract, osteoporosis”.
Notwithstanding the foregoing, I have also considered the merits of your claim, including the medical opinion of Dr Peter Chia and I am unable to find on the balance of probabilities, as distinct from possibilities that the conditions claimed are related to your employment at Maralinga.
…” [T19/46-47]
2. Section 124 of the Safety Rehabilitation and Compensation Act 1988 (the 1988 Act), as far as is relevant for the purposes of this review, provides:
(1)Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.
(1A) Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.
(2) A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:
(a) where the injury, loss or damage was suffered before the commencement of the 1930 Act-under the 1912 Act;
(b) where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act-under the 1930 Act as in force when the injury, loss or damage was suffered; or
(c) in any other case-under the 1971 Act as in force when the injury, loss or damage was suffered.
(3) A person is not entitled to compensation under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing date, if:
(a) the person received compensation of a lump sum in respect of that impairment or death under the 1912 Act, the 1930 Act or the 1971 Act; or
(b)the person was not entitled to receive compensation of a lump sum in respect of that impairment or death:
(i) where the impairment or death occurred before the commencement of the 1930 Act-under the 1912 Act;
(ii) where the impairment or death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act-under the 1930 Act as in force when the impairment or death occurred; or
(iii) in any other case-under the 1971 Act as in force when the impairment or death occurred.
…”
3. Section 16 of the Commonwealth Employees’ Compensation Act 1930 (the 1930 Act), as far as is relevant for the purposes of this review, provides:
“(1) 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; or
(b)in case of death – within six months after advice of the death has been received by the claimant:
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 that 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.
…”
4. Section 53 of the Compensation (CommonwealthGovernmentEmployees) Act1971 (the 1971 Act), as far as is relevant for the purposes of this review, provides:
“(1)This Act does not apply in relation to an injury caused to an employee unless notice in writing of the injury was served 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.
(2) This Act does not apply in relation to a disease contracted, or an aggravation, acceleration or recurrence of a disease suffered, by an employee unless notice in writing of the contraction of the disease, of the commencement of the aggravation or acceleration of the disease or of the recurrence of the disease, as the case may be, was served on the Commonwealth:
(a)as soon as practicable after 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
(b) 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.
…”
5. The evidence before the Tribunal comprised the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents), together with exhibits tendered by the parties. The applicant appeared on his own behalf with the assistance of his wife, Mrs Molineux. Ms Bean appeared for Comcare, and called Dr C Kelly, Occupational Physician. The Tribunal called the applicant's treating General Practitioner, Dr P Chia, as a witness.
6. The applicant alleges that his injuries arose as a result of the atomic explosion in September 1956, at Maralinga; but it was not until 3 July 2001 that he made a claim for compensation. It is necessary for us to consider, first of all, whether in all the circumstances of the matter the applicant's failure to give notice of the claim was occasioned by a “mistake”, “absence from Australia” or “other reasonable cause”, in accordance with s 16 of the 1930 Act, or in accordance with s 53 of the 1971 Act.
7. We heard evidence from the applicant, who clearly experiences problems recalling dates and circumstances, and is not very articulate, nor able to outline events cogently. We consider that his manifest memory problems result from his myriad of medical problems, and we accept his evidence that he sought advice from a solicitor in Sydney, heard no more, and did not pursue the matter. He impressed us as a confused person with an unreliable memory, giving his best attempt to put his side of events that occurred 48 years ago. We consider that in all the circumstances his failure to lodge a claim, whether the claim was for a disease or an injury, pursuant to the 1930 Act, the 1971 Act, or the 1988 Act, was reasonable in all the circumstances.
8. We heard lengthy and carefully prepared submissions from Ms Bean in relation to the legislation applicable to each condition, which we will not outline in these brief oral reasons for decision, but which we have taken into account in our deliberations. We consider that this is a unique case. The situation of an elderly person with multiple infirmities who deserves special consideration. In all the circumstances, we are satisfied that in accordance with whichever provisions are applicable, the applicant's failure to lodge a claim has been occasioned by a "reasonable cause".
9. We are mindful that with his age the applicant has very much difficulty in recalling events that occurred 48 years ago. We also accept that he has great difficulty in giving the dates of the precise onset of symptoms, and the nature of the medical treatment he has received. We believe that these difficulties are of a genuine nature. We accept that within these constraints, from a medical point of view, he gave the best history that he could.
10. For the purposes of considering the medical evidence, we accept that the applicant was employed at Maralinga for 2 to 3 months in the latter part of 1956 as a cleaner/labourer, and that he witnessed an explosion, probably at the distance of 10 kilometres. In considering the medical evidence, we have addressed his deafness, and in doing so we have considered the medical reports of Dr Baker, Ear Nose and Throat Surgeon, Dr Gristwood, Ear Nose and Throat Surgeon, Dr Kelly, Occupational Physician, and Dr Chia, General Practitioner.
11. We accept that the applicant developed progressive deafness in the mid-1990s, and that the deafness has been assessed by serial audiograms. The deafness is a mixture of conductive deafness and neuro-sensory deafness, that has had gradual onset, and has been progressive since that stage. The most important part of the medical evidence concerning his deafness has been given by Dr Kelly, who gave expert medical opinion that the noise exposure as a result of an explosion could have given rise to a degree of traumatic deafness, but this would have been less than 10 percent. It would have been instantaneous, that is, it would have occurred at the time of the explosion, and would not have been progressive since then.
12. In our opinion, on the balance of probabilities, the applicant’s complete deafness of his left ear, and marked deafness of his right ear, cannot be related to any noise exposure at Maralinga. We are mindful also of exposure to industrial noise in working duties up until the applicant became the recipient of a Disability Support Pension in about 1969. There is no accepted medical evidence of radiation affecting his hearing loss.
13. There are two problems concerning the applicant’s visual acuity. One is cataracts, first diagnosed by an optician for refraction in 1989; and that of macular degeneration which has been progressive since the 1990s. The macular degeneration, on material before the Tribunal, is age-related and constitutional; and on the balance of probabilities, on medical evidence, has no relationship to radiation exposure or employment activities at Maralinga. There have been gradual progressive cataract formations since 1989. There is a slight possibility of radiation causation, but a marked probability of age-related causation. The medical material does not support the probability of employment or exposure to radiation at Maralinga causing cataract formation.
14. In relation to the applicant’s chronic obstructuve airways disease, the condition has not been clearly defined on medical evidence before the Tribunal. Dr Chia said in evidence that a condition of emphysema or chronic obstructive airways disease, was present prior to his commencing treatment of this patient in 1984. It is accepted there is a veteran's entitlement to emphysema, symptoms of which are very similar to that of chronic obstructive airways disease, occurring some undetermined period prior to 1984. There is no instance in the employment or exposure to radiation whilst at Maralinga which, in the material before the Tribunal, on the balance of probabilities, could have given rise to either chronic obstructive airways disease or emphysema.
15. In relation to the conditions of hypertension, gastric ulcer, gastrectomy, oesophageal reflux and osteoporosis, we do not consider that they have any medical relationship to employment or radiation exposure at Maralinga. We are satisfied on the evidence and find as a fact that Comcare is not liable to pay compensation to the applicant for the conditions of chronic obstructive airways disease, reflux oesophageal, hypertension, deafness, gastrectomy, cataract or osteoporosis.
16. For these reasons the Tribunal affirms the decision under review.
I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell and Dr ET Eriksen (Member)
Signed: .....................................................................................
AssociateDate of Hearing 7 May 2004
Date of Decision 7 May 2004
Counsel for the Applicant In person
Solicitor for the Applicant -
Counsel for the Respondent Ms K Bean
Solicitor for the Respondent AGS
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