Pitt and Military Rehabilitation and Compensation Commission

[2005] AATA 158

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 158

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2003/893

VETERANS’ APPEALS DIVISION		)
Re		ANTHONY PITT

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date17 February 2005

PlaceBrisbane

Decision

The Tribunal affirms the decision under review in relation to lumbar spondylosis (Q2003/893).

The claim for macular degeneration was withdrawn (Q2003/892).

.....................[Sgd]....................

Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – Application for review of compensation claim – required notice not served on the original decision-maker in time – delay has prejudiced the Commonwealth – no reasonable excuse for delay in making claim – decision under review affirmed.

Commonwealth Employees Compensation Act 1930-1964, s 16

Safety, Compensation and Rehabilitation Act 1988, s124

REASONS FOR DECISION

17 February 2005

introduction

1.      Mr Anthony Pitt worked as a radio technician in the Royal Australian Air Force (RAAF). He says he was exposed to high levels of radiation. He says he suffers from lumbar spondylosis. He says that condition has been exacerbated by the effects of the radiation. He seeks compensation from the respondent.

2.      The applicant also made a claim in respect of macular degeneration, however he wrote to the Tribunal on 3 February 2005 and withdrew that application.

3.      The respondent says the claim must be assessed under the legislation in force at the time of onset of the condition: s 124, Safety, Compensation and Rehabilitation Act 1988 (the SRC Act). The back condition can be traced back to an accident in 1964, although the condition may have been exacerbated by exposure to radiation in the 1960s. The respondent says the relevant legislation is the Commonwealth Employees Compensation Act 1930-1964 (the CEC Act).

4.      These reasons relate to a threshold question: could Mr Pitt’s claim succeed under the CEC Act? If it cannot, his claim under the SRC Act must fail. As I will explain, I am not satisfied Mr Pitt is able to satisfy s 16 of the CEC Act. It follows his claim was properly rejected by the respondent.

The material before the tribunal

5. The respondent tendered two sets of documents prepared pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. The following material was also placed in evidence for the purposes of the application:

·              Affidavit of Mr Paul Ontong dated 27 January 2005 (exhibit 3)

·              Report of Dr Bruce Hocking dated 4 May 2004 (exhibit 4)

·              Report of Dr Amanda Graves dated 5 April 2004 (exhibit 5)

·              Report of Dr Nicholas Burke dated 19 April 2004 (exhibit 6)

6.      Mr Pitt referred throughout his submissions to comments made by doctors and to other material he has uncovered in the course of his research. Mr Pitt gave evidence on his own behalf.

7.      The Commission was represented by Mr Clarke of counsel. Mr Pitt represented himself.

the factual background

8.      Mr Pitt served in the RAAF between 1959 and 1979. He worked as a radio technician during much of that period. He was obviously good at his job: he was appointed to be an instructor at one stage.

9.      Mr Pitt says he injured his back in 1964 while wearing a safety harness as he worked on an antenna. He also says his back injuries might have been caused by heavy lifting work he was doing as early as 1960. He says he was hospitalised in 1964 as a result of the accident with the antenna but there are no records of that occurring. I note his final medical board examination in 1979 did not refer to any back problems (exhibit 2 - p 17).

10.     The applicant worked on the TACAN radar navigation system in 1963-1965. The devices were installed in Mirage fighters. They did not have adequate shielding. Wing Commander Patterson of the Defence Health Service Branch confirmed (exhibit 2, p 15) Mr Pitt “received significant radiation exposures” in the course of his work.

11.     Mr Pitt said he knew while he was serving in the military that radiation exposure posed serious health risks. He said he was acutely aware at the time of the risk of cancer because in those days cancer treatment was much less effective.

12.     The applicant’s final medical board (exhibit 2, pp 17-19) appended a note from the applicant referring to the radiation exposure. He said (at p 19): “Since the adverse effects of radiation are unpredictable and long delayed I believe this should be noted.”

13.     Mr Pitt was aware in 1966 that he had a low sperm count. He said in his evidence that he was suffering from frequent internal bleeding from the early 1970s. His final medical board also referred (exhibit 2, p 19) to his dissatisfaction with a finding that a skin condition was not related to his work in the radio trade.

14.     Since his retirement from the RAAF, Mr Pitt has suffered from a number of health problems. He underwent an Oesophaphagectomy in 2000 as a result of cancer. He also injured his arm in 1996. The injury was complicated by the growth of a giant cell tumour at the point where the arm rested while the applicant was tuning the TACAN device. He has made claims in respect of other conditions.

15.     The applicant did not make a claim in respect of his back condition until 2001. His claim form completed on 20 February 2001 (exhibit 2 at p 30) says he first noticed the back condition in 1980. He said he began to receive treatment from that date. He now says the condition is attributable to the accident in 1964. He says it has been made much worse by the radiation exposure. He says he did not appreciate the contribution of the radiation exposure until he developed a cluster of conditions in the late 1990s. It was only then that he realised the link between his back condition and his service.

the legislation

16.     I have already explained that s 124 of the SRC Act says a claim relating to a period covered by earlier legislation is only able to be considered if the claim would have been considered under the earlier legislation. It is therefore necessary to consider whether s 16 of the CEC Act would be an obstacle for the applicant.

17.     Section 16(1) of the CEC Act says the decision-maker must not admit a claim for compensation unless:

·notice of the injury has been served upon the decision-maker “as soon as practicable after it has happened”;

·              before the employee has left the employ of the Commonwealth; and

·              within six months from the occurrence of the accident.

18.     Section 16(1) includes a proviso. Section 16(1)(i) says the want of or inaccuracy in the notice required under s 16 shall not prevent the decision-maker form considering the claim if (a) the Commonwealth is not prejudiced by the shortcoming and (b) the shortcoming in the notice was not caused by “mistake, absence from Australia or other reasonable cause”.  Section 16(1)(ii) says the failure to make a claim within the six month period may be excused if the decision-maker “finds that the failure was occasioned by mistake, absence from Australia or other reasonable cause.”

19.     The applicant did not provide a notice of his injury in 1964 until he lodged his claim form in 2001 – some 20 years after he says he began receiving treatment for the back condition, and at least 35 years after the accident with the antenna that caused him to be hospitalised. I am satisfied this document (and the associated documents) qualifies as a notice for the purposes of s 16: see Blunden and Comcare [2003] AATA 957 at paragraph 66.

20.     The extensive delay in filing the notice and claim has prejudiced the Commonwealth. As Mr Ontong explained in his affidavit, the Commonwealth has lost the opportunity to make proper inquiries and secure records that might enable it to properly assess the claim. The missing records of the hospital stay in 1964 are but one example of the prejudice the Commonwealth will suffer if the claim were to go ahead. It will also be difficult to identify witnesses after such a long delay.

21.     I am also of the view the applicant does not have reasonable excuse for the delay in making his claim. He has known of his back condition since at least 1980. He says he did not connect the condition with his service until he became aware of the various effects of radiation on his health. I am satisfied he was conscious of the potential impact of radiation on his health from before the date he was discharged: see, for example, the note that was appended to his final medical board examination.

conclusion

22.     I have some sympathy for the applicant. He is a sick man, and he firmly believes his conditions have been aggravated, if not caused, by radiation exposure. But I must be fair to the respondent as well. The long delay in making the claim leaves the respondent in a difficult position. If the applicant’s conditions had only recently emerged, I would treat the matter differently. But the applicant knew he was a sick man and was conscious of the dangers posed by his radiation exposure. He should have acted sooner. His failure to do something about his back condition at an earlier time is the source of the problem.

23.     The applicant’s claim for compensation for a back condition would not be entertained under s 16 of the CEC Act. It is therefore unable to be considered under s 124 of the SRC Act. The decision under review must therefore be affirmed.

24.     The application for review of the decision in relation to macular degeneration was withdrawn after the hearing concluded.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of  

Signed:         .....................................................................................
  Associate: Sam J Appleton

Date of Hearing  28 January 2005
Date of Decision  17 February 2005
The applicant appeared in person.
The respondent was represented by Mr Clark.