Myers and Comcare
[2004] AATA 38
•20 January 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 38
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/868
GENERAL ADMINISTRATIVE DIVISION ) Re NORMAN MYERS Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr O Rinaudo, Member Date20 January 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ..........(Sgd)..........
O Rinaudo
Member
CATCHWORDS
WORKERS’ COMPENSATION – benefits and entitlements – notice of injury – whether applicant provided notice of his injury as soon as practicable after injury – notice of injury form completed but cannot be located – deemed notice
Safety, Rehabilitation and Compensation Act 1988
Banks v Comcare (unreported, FCA, 26 July 1995)
Re Tierney and Reserve Bank of Australia (1988) 15 ALD 535
Humphrey Earl Ltd v Speechley (1951) 84 CLR 125
Hatzimanolis v ANI Corporation Limited (1992) 173 CLR 473
Re Bingham and ASP Ship Management (AAT 11957, 18 June 1997)
Comcare v Luck [1999] FCA 100REASONS FOR DECISION
20 January 2004 Mr O Rinaudo, Member 1. This is an application by Mr Norman Myers (“the applicant”) for a review of the decision of a delegate of Veterans’ Affairs Military Compensation and Rehabilitation Service on 16 January 2002, and affirmed on 7 August 2002, to reject the applicant’s claim for a right wrist condition.
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T15) and documentary evidence as follows:
§Exhibit 2 Affidavit of Paul Ontong, dated 14 January 2003
§Exhibit 3 Notes of Client
§Exhibit 4 Statement of Gary John Spierings, dated 5 December 2002
3. The applicant was represented by Mr R Hume of Counsel and the respondent was represented by Mr C Clark of Counsel. The applicant and Mr Spierings gave oral evidence.
4. The applicant was born 20 March 1960 and was a serving member of the Australian Regular Army. The applicant enlisted on 28 February 1978 and was medically discharged on 9 September 1999. The applicant has claimed for a right wrist condition which he alleges was the result of an injury sustained whilst participating in an organised physical training session of touch football, in the course of his service, in November 1991 (T3, page 10).
Legislative Framework
5. Pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1998 (“the Act”) Comcare is liable to pay compensation in accordance with the Act in respect of an employee who suffers an injury which results in death, incapacity for work or impairment. “Injury” is defined in section 4 of the Act as including a physical injury suffered by an employee arising out of, or in the course of, employment.
6. However, the Act will not apply in relation to an injury suffered by an employee if notice in writing of the injury is not given, pursuant to section 53(1) of the Act or there is no deemed notice by operation of section 53(3) of the Act.
Evidence of the Applicant
7. The applicant stated the injury occurred during a game of touch football and that, as soon as the accident happened, the applicant knew that he was injured and saw the RAP Corporal Medic who strapped the applicant’s wrist. The applicant then returned to work.
8. Following the consultation with the Corporal Medic he saw the Area Medical Officer, in April 1992, when there was no improvement in his wrist. The Medical officer examined the applicant’s wrist and referred him to Dr Honner. Dr Honner conducted an x-ray which showed that the bone was out of alignment. He was advised that he would either have to undergo an operation or “put up with it”.. The applicant stated that he chose not to have the operation.
9. The applicant stated that he was discharged from the Army in 1999 because he was having problems with the physical training and could not longer see a future there. Upon discharge he stated that “civy street” was not what he wanted and subsequently re-enlisted.
10. The applicant stated he completed a PM Form 24, in relation to the injury to his wrist, and that Captain Spierings signed it. These forms were stored in the orderly room and were the responsibility of the Corporal. He later learnt that there was a problem in the orderly’s room and that many of the documents had been stored in a cupboard rather than being correctly filed and processed and were now lost.
11. The applicant stated that he made a claim for compensation in November 2001 and the first time he had heard of the missing PM Form 24 was when his solicitors wrote to him advising that it could not be located.
12. In cross-examination the applicant confirmed that that the accident occurred in November 1991 and that he had endured symptoms since that time. He confirmed that he was given the option to have an operation but declined so as not to affect his career. He stated that he realised that he had rights to compensation as early as 1992.
13. He stated that at no time did the doctors he consulted advise him that the wrist injury he suffered was that serious. He stated that the injury did not affect his status and did not think to make a claim at that time.
14. The applicant was asked to examine his medical records (T4, pages 22 –44). He agreed that he had undertaken regular Medical Board assessments and that many of these records note the injury to his right wrist. In his Medical Board Examination Record dated 7 September 1993 (T4, page 27), it is noted that the applicant could do push-ups for his BFA. When asked if he advised the doctors that he was not having trouble with his wrist he replied “no”.
15. The applicant was referred to a outpatient clinical record (T4, page 28) dated 5 April 1994 which notes continuing instability in the applicant’s right wrist. When asked if he applied for compensation at that time, the applicant said “no”.
16. The applicant was also referred to the Medical Board Examination Record dated 26 October 1995 (T4, page 31), and the notes that states, “with regard to his right wrist, there is mild impairment of strength and movement due to old injury and dupuytren’s contracture”. The applicant said that he did not advise the doctors that his impairment was “mild”.. Under the heading “Diagnosis of Disabilities Discovered” there is a notes that says that there is “mild disability right hand of no functional significance”.. The applicant disagreed with this comment and said it was not so.
17. With respect to the Medical Board Examination Record dated 18 April 1997, it was put to the applicant that there was no mention of the risk to the applicant associated with surgery. The applicant stated that the wrist was the same, as previously stated, and that he had learned to live with it.
18. The applicant was referred to the report of Dr Toft dated 3 November 2000, which states:
“He gives a history of an injury to his right wrist in 1991. He says he was told he had a bone displacement and a specialist had given him the option of having an operation w3ith a bone graft or of putting up with his symptoms.
He says he really has had no troubles with his wrist since that time.”
In response, the applicant said that he had told Dr Toft that he had been having problems with his wrist and with respect to the report, he said that what he meant was that he had had no problem with the wrist since the accident.
19. With regard to the PM Form 24 the applicant stated that he filled out the form and handed it in and had never seen it again. He said that the clerk was overloaded and could not keep up with the paper work. It was put to the applicant that there was no mention of this in his statement (T11, page 66) or in the letter from the applicant’s solicitors, dated 10 July 2002 (T14, page 71).
Evidence of Gary John Spierings
20. Mr Spierings attended the hearing and gave oral evidence in support of the applicant. In examination in chief he stated he was the Officer Commanding 1st Watercraft Workshop and that the applicant was his Quartermaster, with whom he had a close working relationship. He said that the applicant injured his right wrist in a game of touch football or hockey that resulted in the applicant wearing a cast for a significant period of time.
21. He said that he could recall the PM Form 24 to record the injury and that the clerk was very prompt in producing the PM Form 24. He further stated that the remembered the applicant presenting him with the form to sign. He said that when he was presented with one of these forms he would have looked at the circumstances of the accident and that a copy would be forwarded to Occupational Health and Safety.
22. Mr Spierings gave evidence that he was aware the PM Form 24 was not able to be found, but that this was not uncommon, and many documents “disappear down a black hole”. He added that as a result of a restructure forms could have been sent to the wrong area.
23. Mr Spierings stated that he left the Unit at the end of 1992. When he left he could not recall the state of the applicant’s injury but that it had “caused him grief for a long time”.
24. In cross-examination, Mr Spierings said that he would have been present, but could not remember the actual injury or whether the unit was playing football or hockey. He gave evidence that he did not recall the injury being serious, that the bone was not protruding at a 90 degree angle. He said that he was uncertain as to whether the applicant saw the doctor that day or the next day.
Submissions
25. Mr Hume for the applicant submitted that there was no prejudice to the respondent and therefore section 53 of the Act cannot be relied upon. It was submitted that the requisite notice, being the PM Form 24, was given in writing to the relevant authority. It was submitted that Captain Spierings was the Army in the circumstances and that any explanation with respect to why the document could no longer be located was immaterial.
26. It was submitted that as early as 1992 the Army was aware that the applicant had sustained an injury. The applicant’s Army medical records, in the section 37 documents before the Tribunal (T4 pages 22–46), provide a clear history of complaint with regard to the right wrist injury, for which the Army had provided treatment. It was said that this is sufficient to constitute constructive notice and that there could be no prejudice to the respondent in assessing the claim.
27. It was further submitted that the accident did occur and the fact that it occurred is sufficient to consider compensation, that a physical training game of touch football fell within the requirements of the Act and that all witnesses could be tracked down. Finally, it was submitted that the Officers in the Unit would have worked closely together and that the applicant and Mr Speirings had given open and honest evidence.
28. Mr Clark for the respondent submitted that notice had not been given or served within a practical time. It was submitted that although the PM Form 24 was raised with Mr Spierings and he states that the injury occurred, it is questionable as to whether the form was served, it was said that his evidence did not go that far.
29. It was submitted that the a record of the consultation with the Corporal medic was no where to be found and that the applicant had intimated to the Tribunal that he consulted Army doctors when in fact he was undertaking a compulsory Medical Board reviews.
30. It was submitted that the applicant’s right wrist injury was declining in significance. Mr Clark referred to the applicant’s Medical Board Examination Record of 25 October 1995 (T4, page 31) which notes that there is a mild disability of the right hand of no functional significance. The report of Dr Toft dated 3 November 2000 (T7, pages 49-50), notes that the applicant had said he had experienced no problems with his wrist since that time and the instability in the right wrist was asymptomatic. In contrast, the applicant has presented different history to Dr Thompson in his report of dated 5 April 2001. It was submitted that the applicant by his body language was uncomfortable when cross-examined on these discrepancies and that this was relevant to the applicant’s credit.
31. With regard to the issue of deemed notice under section 53(3) of the Act, it was submitted that there was a period of five months between the date of the accident and the record of the wrist injury in the Medical Board Examination Record dated 1 April 1992. From when he left the Army in 1999 it was another two years before the claim form was lodged. It was submitted that the Tribunal was open to find deemed notice; but referred the Tribunal the following passage from the decision of Kiefel J in Banks v Comcare (unreported, FCA, 26 July 1995 at par 14):
“…Not wishing to diminish one’s prospects of employment, when a person is able to cope with a limited disability, furnishes a reason for not making a claim which is understandable. But that may not suffice as a satisfactory explanation for the failure. Proviso paragraph (ii) requires that it be ‘occasioned by…other reasonable cause’. Unlike proviso (i), this proviso does not excuse inaction where there is no prejudice…
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) VR 34,38; Quinlivan v Portland Harbour Trust (1963) VR 25, 28. Here however it was not just the circumstances prevailing which operated to hinder or prevent the giving of notice, but a conscious decision made by the applicant in light of those circumstances and according to where it was perceived his best interests lay…
It is difficult however to accept that proviso (ii) was intended to encompass a position where a person might later change their mind about making the claim for the reason that it now suited them to do so.”
32. In reply, the applicant’s counsel submitted that notice had been lodged and served and that Bank’s case referred to a different section of the Act.
Consideration
33. The respondent relies on section 53(1) of the Act. This section requires the applicant to give notice of the injury as soon as practicable after the injury occurs. This provision is intended to operate to protect the Commonwealth from being placed in a position where they are unable to refute an employee’s allegation that they sustained an injury in the course of their employment: see Re Tierney and Reserve Bank of Australia (1988) 15 ALD 535.
34. The issue for the Tribunal is whether the completion of the PM Form 24 constituted written notice of the injury, pursuant to section 53(1) the Act. If the Tribunal is satisfied that this does not constitute notice, it must then consider whether the Army received constructive notice of the injury by virtue of the Medical Board examination conducted in April 1992.
The PM Form 24
35. The completed PM Form 24 was not able to be produced before the Tribunal. The Tribunal heard the evidence of the applicant and Mr Spierings that the applicant completed the PM Form 24 and gave it to Mr Spierings, who signed it. One explanation given as to why the document could not be produced was that it had been misplaced by the orderly who was responsible for filing and processing this type of documentation.
36. The Tribunal found both the applicant and Mr Spierings to be honest and credible witnesses. The Tribunal accepts that the injury to the right wrist occurred during a game of touch football and that the PM Form 24 was completed but misplaced in circumstances beyond the applicant’s control. The Tribunal is satisfied that the completion and lodgment of this form is sufficient notice under section 53(1) of the Act and that such notice was provided as soon as practicable after the applicant becoming aware of his injury.
The Medical Board Examination
37. Given the Tribunal’s finding that the applicant gave notice of the injury by virtue of the lodging of a PM Form 24, it is not strictly relevant for the Tribunal to consider this issue. However, for completeness the issue will be addressed briefly.
38. In Re Bingham and ASP Ship Management (AAT 11957, 18 June 1997), the Tribunal considered what would be necessary to constitute “notice” of an injury under a similarly worded provision (section 64 of the Seafarers Rehabilitation and Compensation Act 1992). The Tribunal held (at par 22) that a formal claim for compensation could provide notice of an injury. (See also, Comcare v Luck [1999] FCA 100 at pars 60-61, where the Federal Court held that notice under section 53 of the Act could be given by lodgment of a claim for compensation). The Tribunal further found that, for a written document to constitute notice of an injury, it would set out “in writing the details of the injury and the circumstances in which it occurred”.
39. The written notice being relied upon by the applicant in this case is the Medical Board Examination Record dated 1 April 1992. The record makes the following notation with regard to the applicant’s right wrist:
“…sprain Rt wrist, resolving. (02)”
40. The notation does not set out the nature of the injury and the circumstances in which it occurred. The notation is not necessarily referrable to an injury that occurred during the course of the applicant’s employment that would put the respondent on notice that the applicant had sustained an injury for which they may be liable to pay compensation. Therefore, the Tribunal is of the view that the applicant cannot rely on the Medical Board examination as providing the respondent with the requisite notice.
Whether Injury Occurred in the Course of Employment
41. A question remains, however, as to whether the injury occurred during the course of, or arose out of, the applicant’s employment.
42. An “injury”, as defined in section 4 of the Act, includes a physical injury suffered by an employee arising out of, or in the course of, the employment of the employee. In its original decision dated 16 January 2002 the Military Compensation and Rehabilitation Service advised the applicant that “as the available evidence does not support a connection between your claimed right wrist and your service employment, I determine that your compensation claim is disallowed” (T13, page70). In its reconsideration of the original decision, dated 7 August 2002, the Military Compensation and Rehabilitation Service was not satisfied that the wrist injury sustained arose out of or in the course of employment. This was on the basis, that “the evidence to hand does not establish, on the balance of probability, that the game in which the injury was sustained was part of an ‘organised physical training session’, or that it was otherwise authorised or sanctioned so as to fall within the terms of the Defence Instruction” (T15, page 77).
43. The traditional test for “in the course of employment” was set out by Dixon J in Humphrey Earl Ltd v Speechley (1951) 84 CLR 125 at 133:
“The question whether it occurs in the course of the employment must depend upon the answer to the question whether the workman was doing something he was reasonably required, expected or authorised to do in order to carry out his duties…”
44. The test has evolved since this time into a more liberal interpretation. In the High Court decision of Hatzimanolis v ANI Corporation Limited (1992) 173 CLR 473 at 484, which restates the test as follows:
“Moreover, Oliver and the cases which follow it show that an interval or interlude in an overall period or episode of employment if the employer, expressly or impliedly, has induced or encouraged the employee to spend the interval or interlude at a particular place or in a particular way. Indeed, the modern cases show that, absent gross misconduct on the part of the employee, an injury occurring during such an interval or interlude will invariably result in a finding that the injury occurred in the course of employment. Accordingly, it should now be accepted that an interval or interlude with an overall period or episode of work occurs within employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend the interval or interlude at a particular place or in a particular way.”
45. As a member of the defence service the applicant has a duty to maintain fitness by engaging in physical training with other members of his unit. This does not necessarily mean that all physical sporting activities undertaken by the applicant with other Army personnel will amount to activities undertaken in the course of his employment.
46. In this case, the Tribunal is not satisfied that a sufficient connection has been established between the applicant’s work and the football game in which he suffered the injury to his wrist. There is no evidence that the applicant was directed to take part in the football game, or that participation was in any way compulsory. As a connection cannot be established between the injury and the applicant’s employment, the injury is not compensable under the terms of the Act.
Decision
47. The Tribunal affirms the decision under review.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O Rinaudo, Member
Signed: .......................................................................................
AssociateDate of Hearing 8 April 2003
Date of Decision 16 January 2004
Counsel for the Applicant Mr R Hume
Solicitor for the Applicant D'Arcys
Counsel for the Respondent Mr C Clark
Solicitor for the Respondent Dibbs Barker Gosling
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