Panlook and Comcare
[2003] AATA 491
•30 May 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 491
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/1082
GENERAL ADMINISTRATIVE DIVISION ) Re GARY PANLOOK Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr R G Kenny, Member Date30 May 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ..................(Sgd)........................
R G Kenny
Member
CATCHWORDS
WORKER’S COMPENSATION – claim for injury during military service –– whether notice of injury given as soon as practicable – whether notice deemed to have been given – whether prejudice to respondent - whether any failure to give notice due to ignorance, mistake or other reasonable cause
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 53
Comcare v Luck (1999) 29 AAR 403
Re Deveson and Comcare [1999] AATA 80
Re Ditchburn and Comcare [2003] AATA 450
Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534
Re Willis and Australian Telecommunications Commission (1989) 19 ALD 665REASONS FOR DECISION
30 May 2003 Mr R G Kenny, Member Background
1. On 6 February 2002, Gary Panlook (the applicant) completed a Claim for Rehabilitation and Compensation for injuries which he described as “musculo-ligamentous strain” of his neck and which he stated occurred when he fell from his bike while riding home from his work in 1992.
2. On 19 July 2002, a delegate with the Military Compensation and Rehabilitation Service determined, in accordance with the terms of the Safety, Rehabilitation and Compensation Act 1988 (the Act), that the claim should be disallowed and, on 15 October 2002, another delegate affirmed the initial decision. On 9 December 2002, the applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal) and the matter is to be determined under the Administrative Appeals Tribunal Act 1975.
Appearances
3. The applicant was represented by Mr P Hay of counsel. Ms E Ford of counsel appeared on behalf of Comcare (the respondent).
4. The following material was tendered and taken into evidence:
§exhibit 1: the T documents (T1-T19);
§exhibit 2: an affidavit, dated 2 May 2003, by the applicant with attachments A to E;
§exhibit 3: an affidavit, dated 6 May 2003, by Paul Ontong, Director of Appeals with the Military Compensation and Rehabilitation Service.
Issues and Legislation
5. Both Ms Ford and Mr Hay agreed that the issue for determination in this matter was whether or not the notice requirements as set out in section 53 of the Act have been complied with. The provision reads:
“53 (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; or
(b) if the employee dies without having become so aware or before it is practicable to serve such a notice—as soon as practicable after the employee's death.
(2) This Act does not apply in relation to the loss of, or damage to, property used by an employee, being a loss or damage in circumstances referred to in section 15, unless notice in writing of the accident that resulted in the loss or damage is given to the relevant authority:
(a) as soon as practicable after the employee becomes aware that the accident had resulted in the loss or damage; or
(b) if the employee dies without having become so aware or before it is practicable to serve such a notice—as soon as practicable after the employee's death.
(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.”
Applicant’s Evidence
6. The applicant served in the Royal Australian Air Force (RAAF) from 8 January 1974 until 30 May 1994. In his affidavit (exhibit 1), he gave the following evidence.
7. He was riding his bicycle home from work at approximately 5pm on or about 13 March 1991 when he had an accident. At the time, he lived at 26 Flinders Drive, Leichhardt and worked at RAAF Base Amberley and his normal method of commuting to and from work was by pushbike. At the time, it was raining and the road was slippery. The edge of the road had no gutter and, whilst trying to work the bike up the hill, he encountered an irregularity in the road and fell towards the centre of the road. He tore his shirt and injured his right shoulder, arm and back. He was wearing a helmet which was also damaged but there was no visible damage to his head. His bike was damaged and could not be ridden and there were no known witnesses to the accident.
8. At the time, he did not believe that there was any long-term or permanent injury but he attended the Base Medical Flight the following morning where his injuries, both external and what appeared to be muscular, were examined and he was referred to the physiotherapist contracted to the Medical Flight. He received ongoing medical treatment after the initial consultation in the form of several physiotherapy sessions over the following weeks. He believed that a Ground Incident Report should have been completed by the treating medical practitioner although he now understands that such a report cannot be located.
9. His external abrasions healed but the stiffness and ongoing muscular discomfort in his neck were only improved in the short term and there has been noticeable deterioration over time to the present level where restrictions in neck movement severely impair his ability to perform many basic daily requirements and at no time has this injury returned to the condition enjoyed before the accident.
10. Since the accident, he has sought further consultation with RAAF medical staff and his own medical practitioner, Dr P Goldston. This has resulted in treatment to his neck on 26 July 1993 and referrals by Dr Goldston for neck x-ray on 19 September 1995, for ultrasound on his right shoulder on 14 August 2001, for massage on 3 September 2001 and for a CT scan of his neck on 27 March 2002.
11. His neck problems have gradually intensified since the accident and reached a point where these became severe. He was not aware that he was able to make a compensation claim until the late 1990s when he was working as a business manager and it was not until 2002, when he received legal advice, that he became aware of the claim procedure.
12. The applicant, in his oral evidence, said that many RAAF workers commuted by bicycle and that there were many riders around him when he fell. He said that some of these stopped to assist him but he did not know any of them and is not able to provide the names of any of them. He said that he started to walk towards his home because his bike was not serviceable and another RAAF worker who lived near him stopped his van and transported him the rest of the way. He said that he does not recall the name of that person.
13. In cross-examination, the applicant detailed the nature of his duties in the RAAF, commencing as an apprentice in aircraft engineering and progressing to the rank of warrant officer with responsibilities which included the management of a training and educational facility and a commercial support program and the overseeing of between five to ten RAAF personnel at differing times. He said that this required him to monitor staff activities in respect of settling task descriptions and delegations and monitoring performance in matters such as the taking of sick leave. He said that he was required to ensure that relevant documentation was completed if a member was injured and that he followed appropriate procedures in these cases. However, he denied that that he was aware of any procedure whereby a compensation claim could be made in relation to any such injuries. He said that he knew of the existence of Comcare but was not aware of the role it played in compensation.
14. The applicant told Ms Ford that he had experienced no problems with his neck prior to his accident and that he had always had symptoms in his neck since that time. He said that there has always been present a “niggling tightness” which has gradually increased in intensity. He also said that, from the time of the accident, he underwent a significant change to the range of physical activities that he has been able to undertake and had curtailed many of these including bicycle riding. This left him in no doubt that something occurred to him in the accident which has been responsible for his neck problems.
15. The applicant agreed that he had stated in his claim form that the incident occurred in 1992 and that in his evidence he had nominated 1991 as the relevant year. He conceded that he was not sure of the date or the year when it occurred. He confirmed that he had attended a Medical Flight on the day after the accident but conceded that he could not recall whom he saw for treatment in that he could not recall whether he saw a doctor or was treated as an outpatient.
Evidence of Jan Panlook
16. The applicant’s wife, Jan Panlook, made a statement, dated 10 March 2003 (see exhibit 2-attachment A), in which she recalled that the applicant arrived at their home one evening early in 1991 at which time he advised her that he had fallen from his bike on the way home from work. She observed scratches to his shoulders, arms and legs which she dressed.. She also observed damage to the applicant’s bicycle. She said that he attended a work-related course that evening, went to medical for treatment to his right shoulder and neck on the following day and underwent physiotherapy for several weeks which improved his mobility but not the level of discomfort. She said that his neck has worsened and that she had provided neck massage to him for over ten years.
Evidence of Stephen Romano
17. Mr Romano made a statement, dated 4 March 2003 (see exhibit 2-attachment B), in which he stated that he had seen the applicant at a course which was held one evening in early 1991 when he observed that the applicant was in some discomfort and was told by him that he had fallen from his bicycle and was shown grazes and bruises on his legs and shoulders. He also said that the applicant had arrived late for work on the following day and said that he was told by the applicant that he had attended medical for treatment.
Paul Ontong’s Affidavit
18. In his affidavit, Mt Ontong stated the following.
19. Because of the delays occasioned by the applicant in lodging a claim for compensation, the Commonwealth lost the opportunity to verify or properly investigate his claim and the circumstances that allegedly gave rise to the condition. The medical records held by the Commonwealth do not support the applicant’s claim and the Commonwealth is unable to determine all the evidence recorded in the applicant’s service medical and personnel records as the Commonwealth has lost the opportunity to speak to the relevant officers who completed entries in the records, including the discharge medical documents, and it was unlikely that the officers would recall any specific information about the applicant some eleven years later.
20. The applicant's own recollections of the claimed incident, and the claimed injuries are likely to have deteriorated in the preceding ten years and, also, the names of apparent witnesses have not been disclosed and the Commonwealth is therefore unable to locate the said witnesses to corroborate the applicant's evidence. Even if witnesses could be located, it is unlikely that they will have reliable recollections of the incident.
21. The Commonwealth was not availed the opportunity to have the applicant medically assessed at the time of the claimed event and the applicant has not provided the Commonwealth with any satisfactory contemporaneous medical documentation supporting his claim. Medical documentation held by the applicant’s own treating practitioners may have been destroyed in the intervening eleven years and it is unlikely that the practitioners would recall any specific information about the applicant’s claimed condition or the claimed event.
Respondent’s Submission
22. Ms Ford submitted that the applicant had not complied with the terms of sub-section 53(1) of the Act because notice in writing of the injury was not given to the relevant authority as soon as practicable after he became aware of his injury.. She also submitted that, in accordance with sub-section 53(3) of the Act and for the reasons given by Mr Ontong, the failure to give notice had prejudiced the respondent.
23. Ms Ford submitted that there was no evidence that the failure to give notice was occasioned by mistake or absence from Australia. In relation to ignorance of the right to claim compensation, she noted the applicant’s contention that he only became aware over time that the neck injury would cause permanent impairment and discomfort and that he was not aware until the late 1990s that he could make a claim for compensation. She submitted that the applicant had stated that, following the injury, he had physiotherapy treatment two or three times per week over a few months but at the conclusion of the treatment he still had pain in his neck and that, although his neck improved, it did not get appreciably better and that he always had “niggling tightness” in the back of his neck with gradual deterioration since 1992. Ms Ford referred to the applicant’s evidence that he had not had any neck pain prior to the bicycle accident and submitted that the applicant was aware of the injury from the time when he alleged that it had occurred.
24. Ms Ford submitted that, because of his rank of warrant officer in 1991/1992, the applicant would have known of the right to claim compensation for a work-related injury. Further, she submitted that, on applying an objective test, it was not reasonable for the applicant to fail to give notice of the injury given that he said that, following the injury, he had extensive treatment which did not resolve his symptoms. She submitted that there was no 'act or omission' preventing him from giving notice of the injury and that to excuse such a failure would not give sufficient weight to the purpose of the legislation and the prejudicial effect on the respondent.
Applicant’s Submission
25. Mr Hay submitted that the applicant first notified the relevant authority in writing on 24 April 2002 and that, notwithstanding the passage of ten years since the incident leading to the injury, this was as soon as practicable after he became aware of the injury. In that regard, he submitted that the applicant had only recently become aware of the true nature and symptoms of the injury as the impairment had only emerged over time and, although now relatively stable, had been progressively deteriorating over the course of the last ten years. Also, he submitted that it was not practicable for the applicant to provide notice at an earlier stage, as he was unaware of his obligation to do so and was unaware until recently of his right to seek compensation in respect of the injury. He submitted that this meant that he had complied with the requirements of sub-section 53(1) of the Act.
26. In the alternative, Mr Hay submitted that there had been compliance with the terms of sub-section 53(3) of the Act in that there was no prejudice to the respondent and any lateness in giving notice was consequent upon his ignorance of the obligation to give notice.
27. In relation to prejudice, Mr Hay was critical of the respondent for not raising this matter prior to the hearing but, in any event, submitted that prejudice did not arise. He submitted that the mere passage of time could not be equated with prejudice, particularly where the symptoms of the injury occur over an extended period of time, and that prejudice will only be suffered where there is a demonstrable difficulty caused by the delay, particularly where there has been a dissipation of available evidence. He submitted that the respondent had not advanced any particulars of the prejudice it will suffer in the circumstances, other than that the medical records held by the Commonwealth do not support the applicant's claim.
28. Mr Hay referred to the circumstances of the injury as involving no witnesses or other objective evidence as to the bike accident but submitted that there were statements by the applicant's wife, Jan Panlook, and by the applicant’s colleague, Stephen Romano, which record the occurrence of the incident and the immediate injury the respondent suffered. He submitted that potential prejudice could be suffered if the respondent had been denied a relevant opportunity to conduct an independent medical examination at the time of the accident but that this had not happened in this case because the symptoms of the injury had only become clear over an extended period and there would have been no utility to the respondent in obtaining a medical report at an early stage. Further, he submitted that the applicant should not suffer from the paucity of records maintained by the department of defence as the fact that the available records do not record the particulars of the incident is not a matter over which the respondent had any control.
29. Mr Hay also submitted that the Act was beneficial in nature, in that it provides for the payment of compensatory benefits, and that it should not be construed restrictively, or with undue technicality that would defeat a claimant's substantive claim. Therefore, he submitted, there should be very strong grounds of prejudice established before a matter is dismissed without substantive hearing.
30. In the event that there was prejudice to the respondent, Mr Hay submitted that the applicant still met the requirements of sub-section 53(3) of the Act because he was ignorant of his obligation to give notice to the respondent and, due to the late development of the severity of the condition and of his awareness of the availability of compensation, he had reasonable cause for not providing notice until 2002.
Consideration
31. The Act makes provision for compensation to be paid by the Commonwealth in respect of work-related injuries or diseases to various categories of Commonwealth employees, including those serving in the RAAF. I accept, as was submitted by Mr Hall, that the Act is beneficial in nature and that it should not be construed restrictively but also accept that the purpose of the notice requirement in section 53 of the Act is as described in Re Tierney and Reserve Bank of Australia(1988) 15 ALD 534 at 535:
"Section 53 is clearly intended to protect the Commonwealth and its instrumentalities from being placed in a situation where they are unable to disprove an employee's assertion of an injury alleged to have occurred on some specific occasion in the course of the employee's work or of a disease contracted because of some brief and transient situation. Some such provision is clearly needed to prevent abuse of the Act."
32. In accordance with paragraph 53(1)(a) of the Act, written notice of the applicant’s injury was to have been given by the applicant to the respondent "as soon as practicable" after he became aware of that injury. It is not disputed that the claim form lodged by the applicant on 6 February 2002 (see T6) can also constitute a notice: see Comcare v Luck (1999) 29 AAR 403 at 417.
33. The claim form was lodged more than ten years after the applicant’s injury was alleged by him to have occurred. However, the relevant time for the purposes of sub-section 53(1) of the Act is the time when the applicant became aware of the injury. Further, the awareness is not in relation solely to the presence of an injury but to that of an injury which arises out of employment. This distinction was noted by the Tribunal in Re Deveson and Comcare [1999] AATA 800; see also Re Ditchburnand Comcare [2003] AATA 450. In Re Deveson and Comcare, the Tribunal said:
“12. The Tribunal is mindful that in considering whether the applicant has complied with the obligations imposed by s53 of the 1988 Act, s53 of the 1971 Act or s16 of the 1930 Act, in each case the notification obligations relate only to injuries as defined by the relevant legislation. That of course means an injury arising out of or in the course of the person's employment. For example, when ‘injury’ is used in s53 of the 1988 Act, regard must be had to the definition of ‘injury’ in s4 which makes it clear that the injury is one which arises out of or in the course of employment, and similarly with s27(1) of the 1971 Act and s9 of the 1930 Act.
13. Having regard to the above, the Tribunal finds as fact that the first point in time at which the applicant could be said to have become aware, in any meaningful sense, of his injuries, being injuries that arose out of or in the course of his employment, was after he had gathered together all the material relevant to his claim and had confirmed in his own mind that there was a connection between the circumstances of his employment and his medical conditions. On his evidence, this was only a matter of a few weeks prior to the lodging of his claim for compensation on 15 July 1997 which served also as notification for the purposes of the 1988 Act…”
34. In this case, the evidence of the applicant was that he had experienced no problems with his neck prior to his accident and that he had always had symptoms in his neck since that time although he was not able to identify with accuracy the year in which that accident occurred. Initially, he felt a “niggling tightness” which gradually increased in intensity. However, he also gave evidence that the time of the accident marked a significant change to the range of physical activities that he has been able to undertake and, since then, he has had to curtail many of these. He said that he had no doubt that something occurred to him in the accident which has been responsible for his neck problems.
35. The applicant’s service medical records show that he was treated for various complaints during service and that these included his neck and shoulder. On 15 March 1991 (see PT4 at 17), the applicant is described as having pain in the scapula region and as having fallen from his bike two months earlier. In that entry, reference is made to seven physiotherapy treatments for his painful right shoulder. In an entry dated 13 May 1991, reference is made to a “push bike accident” in which the applicant landed on his right shoulder (see PT4 at 20). No reference is made to the applicant’s neck in those entries. However, on 20 May 1991, it was noted that the pain in his neck/shoulder had gone but that pain in his arm was still present (see PT4 at 18) and this points to the presentation of symptoms in the applicant’s neck during that period. Also, on 10 July 1992 (see T4), an entry reveals that the applicant was treated for “tension bilateral neck following sport and fatigue in neck when supporting head” and, in another entry dated 26 July 1993 (see PT4 at 19), it was recorded that the applicant had “soreness on left side of neck and scapula area after played golf on the weekend”. No reference is made to a concern with the applicant’s neck on his Discharge Health Statement dated 24 August 1994 (see PT4 at 23). However, an x-ray report, dated 19 September 1995, addressed to Dr Goldston, describes spondylitis changes present at C6-7 with narrowing of the disc space (see T5).
36. Although, in his evidence, the applicant was not sure whether the incident which he considers responsible for his neck condition occurred in 1991 or 1992, I am satisfied on the evidence, taken as a whole, including that of his wife and Mr Romano, as well as the medical records noted above, that he fell from his bike in 1991. The applicant has described a gradual worsening of symptoms. However, the evidence is that he was aware of a neck problem in 1991, 1992 and 1993 and was x-rayed in that area in 1995. In his evidence, he said that he had needed, from the time of the fall, to limit his physical activities because of the neck problem now claimed and this leaves me satisfied that he was aware of the claimed condition from the time of that accident in 1991. Also, as early as 13 May 1991, he referred to a push bike accident as being associated with a shoulder problem and a week later, reference is made to his having experienced pain in his neck as well. This means that the applicant had associated his neck pain as well as his shoulder pain with the fall from his bike at that time and, because that accident occurred on his way home from work, I am satisfied that he was aware that there was an association with his employment at that time.
37. The applicant gave evidence that he did not realise that he was able to make a claim for compensation until the late 1990s when he was working as a business manager. I do not accept his evidence in that regard, because of the nature of the duties that he performed in the early 1990s. He was a warrant officer in the RAAF responsible for the management of a training and educational facility and a commercial support program and, in those respective capacities, oversaw the activities of between five to ten RAAF personnel which required him to monitor staff activities in respect of settling task descriptions and delegations and monitoring performance in matters such as the taking of sick leave. He said that he was required to ensure that relevant documentation was completed if a member was injured and that he followed appropriate procedures in these cases. In that context, I am satisfied that he would have developed an awareness of the existence of compensation schemes available under Commonwealth legislation including that which is applicable under the Act. Certainly, he admitted to a knowledge of the existence of Comcare at that time.
38. In summary, I find that the applicant was aware of his injury, of a relationship between it and his employment and of his capacity to make a claim for that injury in 1991 and I am satisfied that the delay of more than ten years after that time before lodging his claim form means that notice was not given to the respondent as soon as practicable after he became aware of his injury. It follows that I am satisfied that sub-section 53(1) of the Act has not been complied with. Even if it were the case that the applicant only became aware of his capacity to make a claim in the late 1990s, he clearly, by that time, was aware of his injury, of the relationship to service and of his capacity to lodge a claim form. Nevertheless, he still did not lodge his claim form for some three years. So, even on that view of the evidence, he did not lodge his claim to the respondent within the time frame required by sub-section 53(1) of the Act.
39. Sub-section 53(3) of the Act provides that, where the conditions specified in paragraphs (a), (b) and (c) of that provision are satisfied, the notice shall be taken to have been given under the section. It is not disputed that the conditions specified in paragraphs 53(3)(a) and (b) are met. Under paragraph 53(3)(c), the issues which arise in this case are whether the respondent would be prejudiced if the notice were treated as sufficient notice or whether the failure to comply with the notice requirements resulted from ignorance, from a mistake or from any other reasonable cause.
40. In the event that the applicant had made his claim and thereby given notice of his injury in the early 1990s, the respondent would have been in a position to have had him medically examined by appropriately qualified medical practitioners and to thereby obtain contemporaneous evidence of the state of his injuries. It was submitted by Mr Hall that the injury had not sufficiently manifested itself in those early years and that no such investigations would have been undertaken by the respondent.. On the basis of my finding above that the applicant was aware, in the early 1990s, of the problem for which he ultimately lodged a claim form, I do not accept that submission. The giving of notice at the time would have resulted in some form of medical investigation of the applicant’s symptoms and I am satisfied that this lack of opportunity has resulted in prejudice to the respondent.
41. I am also satisfied that prejudice arises in this case because of the lack of supporting evidence in relation to the accident. On the applicant’s evidence, there were witnesses to the accident and also to the fact that he needed to be driven to his home by the man with the van. The applicant was not able to provide the names of any of these witnesses. The applicant’s wife recalled that he suffered some scratches to his shoulders, arms and legs in early 1991 and Mr Romano referred to grazes and bruises on the applicant’s legs and shoulders at that time. Neither of them witnessed the accident. In the event that the respondent had been made aware of the injury in the early 1990s, further investigation in relation to the identity of those persons who had observed the applicant’s fall and of the man who rendered assistance could have been undertaken. There was also uncertainty of the applicant’s evidence as to the treatment he received on the day after the accident. He said that he attended a Medical Flight but could not remember whether he saw an RAAF doctor, a civilian doctor or an orderly in outpatients. Clearly, if notice of the injury had been given closer to the time of the accident, he would have been better placed to have accurate recall of the treatment regimen he undertook on that day and the respondent would have been able to conduct an appropriate investigation.
42. Even where there is prejudice to the respondent, the applicant’s claim form may still constitute the appropriate notice if the failure to comply with the notice requirements resulted from ignorance, from a mistake or from any other reasonable cause. The matter of mistake was not the subject of submissions and I am satisfied that the matter of mistake does not arise in this case.
43. On the basis of the finding that the applicant was aware of his capacity to make a claim for his injury, I am satisfied that he was not ignorant in that regard. No specific submission was made in relation to whether there was any other reasonable cause for the applicant’s delay in giving notice of his injuries. However, the only explanation given for that delay could be that the applicant was not aware of his rights. In Re Willis and Australian Telecommunications Commission (1989) 19 ALD 665 at 675, the Tribunal held that the test for whether there was reasonable cause in a given situation was one “not judged by reference to some hypothetical man in hypothetical circumstances” but, rather, one that involved an objective test taking into account the subjective circumstances of the applicant. In this case, the applicant made no claim for over ten years. Moreover, he made no claim for over three years after he conceded that he became aware of the capacity to make the claim. On the basis of my finding that he was aware of his injury and his capacity to make a claim for it from the time when the injury occurred, no reasonable cause for the delay arises.
44. It follows that I am satisfied that the notice requirements of section 53 of the Act have not been met and, therefore, that the applicant’s claim is not to be considered.
Decision
45. The decision under review is affirmed.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member
Signed: Sarah Oliver
AssociateDate of Hearing 7 May 2003
Date of Decision 30 May 2003
Counsel for the Applicant Mr Hay
Solicitor for the Applicant D’Arcys
Counsel for the Respondent Ms Ford
Solicitor for the Respondent Phillips Fox
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