Petch and Comcare

[2004] AATA 877

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 877

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/183

GENERAL ADMINISTRATIVE DIVISION		)
Re		IAN PETCH

Applicant

And COMCARE

Respondent

DECISION

Tribunal Deputy President Don Muller

Date20 August 2004         

PlaceBrisbane

Decision The Tribunal rejects a claim made pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975, to extend the time for the making by Ian Petch of an application to the Tribunal for a review of the decision made by the Reconsideration Manager, Military Compensation and Rehabilitation Service, on 4 December 2000.

................SIGNED..............................

D.W. MULLER

DEPUTY PRESIDENT

CATCHWORDS

PRACTICE AND PROCEDURE – application for extension of time – over three years between date of reviewable decision and application to AAT – aware of rights – substantive claim for compensation poor chance of success – application rejected

Administrative Appeals Tribunal Act 1975: s29(7)

Safety, Rehabilitation and Compensation Act 1988: s.65(4)

REASONS FOR DECISION

Deputy President Don Muller        

1.      Ian Petch, the Applicant, seeks an extension of time for the making of an application to the Tribunal for a review of a decision to reject his claim for compensation in respect of malignant melanoma of his right hand.

2.      The reviewable decision was made on 4 December 2000, pursuant to the provisions of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). The decision was sent to Mr. Petch on or shortly after 4 December 2000. It was accompanied by a letter of advice to the effect that if Mr. Petch thought that the decision was wrong, he could have it reviewed by the Administrative Appeals Tribunal. He was also informed that if he wished the AAT to review the decision, he must apply to the AAT within 60 days from the date of the notice. He was also given other advice about applications to the AAT.

3.      The prescribed time for the purposes of lodging applications to the tribunal is usually 28 days (see sub-paragraph 29(2) of the Administrative Appeals Tribunal act 1975). However, the time has been modified to 60 days by subsection 65(4) of the SRC Act.

4.      Mr. Petch made his application for review to the Tribunal on 11 March 2004, approximately three years after the prescribed time.

5.      At the hearing Mr. Petch represented himself and the Respondent was represented by Mr. Clark of Counsel.

6.      The Tribunal had the following documents before it:

i.Exhibit 1 - Bundle of documents containing:

(i)The Record of Service of Ian Petch.  Mr. Petch served in the Australian Army from 21 September 1977 until his discharge on 31 December 1998, with the rank of Warrant Officer Class 2.

(ii)Pathology results of Mr. Petch.

(iii)Application for compensation for skin cancer, dated 20 January 2000;

(iv)Letter supporting application dated 3 February 2000, enclosing Skin Cancer Questionnaire and the Postings History.

(v)Post surgery pathology reports, dated 6 January 2000 and 14 January 2000.

(vi)Reports of Dr. Pollard, general surgeon, dated 4 April 2000 and 7 July 2000;

(vii)Letter from department of Veterans’ Affairs to Mr. Petch, dated 19 July 2000, giving Mr. Petch 28 days to give further details.

(viii)Determination of Comcare dated 4 August 2000, rejecting the claim and including information about requesting a reconsideration and about appeals to the AAT, including the 60 day time limit.

(ix)Mr. Petch’s application for reconsideration, dated 7 September 2000.

(x)Reconsideration dated 4 December 2000, which affirmed the decision to reject the claim and enclosed information about having the decision reviewed by the AAT, including the 60 day time limit.

ii.Exhibit 2 – statement of Paul Ontong, instructing officer for the Respondent, for appeals to the AAT;

iii.Exhibit 3 – A printout of all the claims for compensation made by the Applicant.

7.      Mr. Petch gave evidence to the Tribunal.  The following points arose out of his evidence and cross-examination.

·He was born in Malaya (as it then was) on 12 June 1958.

·He lived in Malaya until he was five years old, in Sarawak until he was eight, and then in Melbourne until enlistment.

·He played golf, cricket and hockey before enlistment and he played cricket and hockey after enlistment.

·His enlistment date for the Army was 21 September 1977 when he was 19 years of age.

·He was discharged after 21 years on 31 December 1998.

·He spent most of his Army career in Queensland, including a high percentage of the time in North Queensland.  He also had two stints of approximately two years each at Singleton.

·He had a number of injuries during his Army service and he made claims for compensation in respect of those injuries.  Briefly, those claims were:

(i)1 October 1986, claim to DVA for lumbar sprain;

(ii)11 April 1987, claim for lower back problems;

(iii)15 December 1997, claim for permanent impairment L5/S1;

(iv)7 November 1997, claim for partial loss of sight;

(v)7 April 1998, claim for permanent impairment for loss of sight;

(vi)19 April 1998, claim for left ankle.

(vii)29 September 2003, claim for permanent impairment left ankle.

(viii)7 November 1997, claim for trauma to left thumb.

(ix)1 February 2001, claim for permanent impairment to left thumb.

(x)7 November 1997, claim for deterioration to left and right knees.

(xi)30 November 1999, claim for permanent impairment to both knees;

(xii)1 February 2000, claim for malignant melanoma right hand.

·He had been seeing a Dr. Barry about his back problems in November 1998, for the purpose of receiving scripts for morphine.  He asked Dr. Barry about a mole on his right hand.  Dr. Barry told him that it was nothing to worry about.

·His back problems were eventually responsible for his being discharged, totally and permanently incapacitated.  He receives benefits from the Army compensation and superannuation systems in relation to his back injury.

·His eldest daughter is married to a General Practitioner and she persuaded Mr. Petch to see a doctor about the mole on his right hand.

·In early January 2000, he visited Dr. Khoo to have the mole examined.  Dr. Khoo decided to remove the mole and to have it examined by a pathologist.

·The pathologist’s reports dated 6 January 2000 and 14 January 2000 were to the effect that the mole was a level 4 invasive malignant melanoma but had been well excised and no residual malignant melanoma was identified.

·Dr. Khoo referred Mr. Petch to Dr. Pollard, surgeon, who saw Mr. Petch on 12 January 2000 and 16 February 2000.

·In February 2003, Dr. Pollard removed three tumours and forty nodules from glands in Mr. Petch’s right arm.

·He continues to have scans and check ups.  He has not had chemotherapy.  There are currently no signs of metastises.

·He accepts that he probably received the information about applying for review to the AAT and that he probably read it.  He was on morphine because of his back problems at the time.  Consequently, his wife was handling his compensation matters.  He does not know if his wife read the material or not.

·He thought that the reconsideration was the end of the process.  It was not until he was talking to a politician this year that he realised he could apply to the AAT.

·He has no up-to-date medical reports.

8.      During the year 2000, when Mr. Petch was required by the legislation to apply for review, the Respondent did in fact contact Dr. Pollard, who then provided the respondent with reports dated 4 April 2000 and 7 July 2000.  Those reports contained the following:

“Mr. Petch first consulted me on the 12^th January 2000 with a Level 4 1.54mm malignant melanoma having been excised from his right wrist by his general practitioner.  A copy of the histology report is enclosed.  Excision margins were clear, but not well-wide.  This was a Level 4 lesion with reticular dermis invaded.  The lesion was on the right wrist over the radial border.  He stated that he had noticed a freckle in that area in March/April 1999.  It had enlarged by about 3-4 times over a two month period at that time, but it then had become static.  However, over the last few months it had become darker, developed a nodule and it started to bleed.  The lesion had been removed when I saw him.  There were no lymph nodes palpable in the supraclavicular area, axilla or neck.  There were no nodes palpable in the cubital fossa and no evidence of an intransit disease.  I note his father had malignant melanoma and his mother had carcinoma of the uterus

Past surgical history included operations on his back, two arthroscopies and some other orthopaedic condition.  He was currently on M.S. Contin and Amitriptyline.  He smoked 10-20 cigarettes a day, had no alcohol intake and no apparent allergies.  He had a wide excision of the area and a thick split-skin-graft placed over the defect.  The wide excision showed a re-excision specimen with no residual melanoma.  The graft has taken without any substantial problems.  He needed the arm resting in a sling for a few weeks after the surgery.  When I last saw him on the 16^th February the graft looked good.  There was no evidence of recurrent disease and he will be reviewed in 4 months time to check for any metastatic disease.  He will clearly need ongoing surveillance because this lesion was a Level 4, was quite thick and he would have a greater than 10% chance of having further problems.

He was apparently an infantry soldier for his period in the Army and has claimed that this would have contributed to the lesion.  It is difficult to decide what contribution his service has made to this lesion.  It may well have made a contribution, perhaps even a significant one, but this cannot be stated with absolute certainty.  While I think he should regain full use of his hand, I had to sacrifice cutaneous nerves from over his wrist as part of the excision.  These supply the back of his hand and fingers.  This does leave some ongoing disability, but should not effect grasping, holding and should have minimal effect on digital dexterity.  He is at a moderately-high risk of recurrence of the disease and I think this will prove a much greater concern in the future.  I have found it difficult to answer the questions in the format that you have suggested.  I apologise for this.

In reply to your letter of the 19^th May 2000, I am unable to give a definite answer to your questions on his melanoma.  Current thinking is that melanoma may well develop from severe episodes of sunburn as a young child.  Even one severe episode may be enough to cause the damage, so it is difficult to say with any certainty that his service as an Infantryman contributed to the development of melanoma.  It may have, but no definite answer can be given.”

9.      The Respondent makes the very valid point that when Mr. Petch failed to seek a review from the AAT in the year 2000, the Respondent did not then go on to seek examination of Mr. Petch’s injury by medical experts of their own choosing.  The Respondent has had no chance to monitor Mr. Petch’s situation over the last three years.

10.     I am satisfied that Mr. Petch and his wife were very familiar with the process involving claims for compensation.  I find that they were informed of the right of Mr. Petch to seek review from the AAT and that the time within which application for review must be made is 60 days.

11.     I find that in the circumstances a delay of three years in applying for review is unacceptable.

12.     I also take the view that even if there had been a review in the year 2000 or 2001 Dr. Pollard’s opinion would have been an important component of the review.  In which case the application for compensation would more than likely have failed.

13.     The application for extension of time is refused.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller

Signed:         .....................................................................................
           C. O’Donovan, Associate

Date/s of Hearing  5 May 2004 
Date of Decision  20 August 2004
Applicant       Mr. Petch, himself
Counsel for the Respondent           Mr. C. Clark
Solicitor for the Respondent           Sparke Helmore