Prendergast and Military Rehabilitation and Compensation Commission
[2006] AATA 832
•29 September 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 832ADMINISTRATIVE APPEALS TRIBUNAL Nº V2005/352
Nº V2005/353
GENERALADMINISTRATIVE DIVISION
Re: RONALD MAXWELL PRENDERGAST
Applicant
And:MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal: Regina Perton, Member
Date:29 September 2006
Place:Melbourne
Decision:The Tribunal affirms the decisions under review.
(sgd) Regina Perton
Member
COMPENSATION ‑ whether injury caused or aggravated by employment – knee and ankle injuries – claim not lodged within requisite six months – prejudice to respondent – lack of medical evidence - decision affirmed
Commonwealth Employees Compensation Act 1930 ss 4, 16
Safety, Rehabilitation and Compensation Act 1988 s 124
Commonwealth of Australia v Connors (1989) 86 ALR 247
REASONS FOR DECISION
29 September 2006 Regina Perton, Member
1. Ronald Maxwell Prendergast is 61 years old. He enlisted in the Australian Army (the Army) on 12 August 1963 and was discharged on 12 August 1966. On 24 November 2003, he lodged claims for compensation and rehabilitation with the Military Compensation and Rehabilitation Commission (the Commission). The claims related to injuries incurred 38 years earlier. One claim was for a torn lateral meniscus knee condition (the left knee injury), which he stated occurred while he was playing football on 11 August 1965 (AAT Application № V2005/352). The other claim related to a right ankle condition which Mr Prendergast indicated had arisen from playing football match on 13 May 1965 (AAT Application № V2005/353).
2. Mr Prendergast also lodged a claim in relation to his right knee which he injured during training. This claim was accepted by the Commission as being related to his army service.
3. On 19 August 2004, a delegate of the Commission refused the claims concerning the left knee and the right ankle. Mr Prendergast sought reconsideration of the decisions on 15 September 2004. On 2 March 2005, the Commission affirmed the decisions to refuse the applications.
4. There have been changes to the legislation governing compensation in the years since Mr Prendergast served in the army. At the time of his service, the Commonwealth Employees Compensation Act 1930 (the 1930 Act) was in force. This legislation was updated in 1971 and again in 1988. Mr Prendergast’s claims have been lodged under the legislation enacted in 1988, namely the Safety Rehabilitation & Compensation Act 1988 (the 1988 Act). However, the transitional provisions in the 1988 Act require the Commission (and the Tribunal) to consider his claims under the 1930 Act. The 1930 Act requires notice of a claim to be within six months of the injury, with only limited discretion to accept a later notice.
5. In this matter, the issues for the Tribunal to consider are:
·whether Mr Prendergast’s application should be refused because he failed to comply with the notice requirements of the 1930 Act;
·if the Tribunal decides that the failure to comply with the notice provisions of the 1930 Act can be overcome whether there is sufficient evidence to link Mr Prendergast’s current condition to injuries suffered during his army service.
EVIDENCE
6. Mr Prendergast lodged claims for compensation and rehabilitation in November 2003 for injuries that, he claimed, had occurred on two separate occasions during 1965, while playing football during army service. He had not lodged any prior claims in relation to these injuries. In his application forms for compensation, Mr Prendergast stated that both injuries were sustained while playing football at Holdsworthy Football Field. He did not provide the names of any witnesses.
7. The Commission obtained army medical records which show that on 13 May 1965, a medical officer examined Mr Prendergast’s right ankle following an injury at football. The medical officer noted swelling & pain of lat side R ankle and diagnosed a R. ankle sprain. He referred his patient for an x-ray and suggested rest. On 17 May 1965, the medical officer reported that he had reviewed the right ankle and that it was clear. The Commission could not obtain any further reports showing difficulties with the right ankle.
8. On 12 August 1965, a medical officer recorded a diagnosis of Torn L lat. cartilage with the clinical notes indicating that the injury occurred while Mr Prendergast was playing football on the previous day. He was referred for an x-ray again on 27 September 1965. Sick reports dated 22 October 1965 and 23 November 1965 refer to the left knee injury. Clinical notes dated 26 November 1965 indicate that Mr Prendergast’s
L. knee “gives way”. Recurrent pain & disability (L) knee. Tender and clicking over (L) lateral cartilage on movements of (L) knee. Recommend (L) lateral menisectomy.
9. Mr Prendergast was admitted to hospital on 13 January 1966 and underwent a left lateral menisectomy on 14 January 1966, and was discharged on 9 February 1966. Mr Prendergast was referred for further physiotherapy on 8 February 1966 to assist in his recovery. Medical notes during June 1966 indicate that he had ongoing aching in both knees in cold weather following the operation on his right knee in March 1965 and the operation on his left knee in January 1966. He was recommended for the expedited issue of elastic knee supports, further physiotherapy and medication. A note dated 7 June 1966 indicates that Mr Prendergast had no excessive fluid in either knee and a full range of movements in both knees. The Final Medical Board report prior to discharge, dated 20 July 1966, indicated that:
Patient had left menisectomy in Jan 1966. He states “he can not bend his left knee properly and that it aches in cold weather”…
…
Right knee – movements free & full – No disability
Left knee – movements almost full although a little painful. No quadriceps wasting. No effusion. Ultimate result should be good.
10. On 19 February 2004, the Commission wrote to Mr Prendergast explaining the legislative requirement that claims be lodged within 6 months of injury and asking him to provide a detailed statement as to why he had not submitted his claim within the required time period. He was also asked to provide the following documents within 28 days:
1.A Report of Injury form or similar
2. A statement detailing the circumstances of your injuries:
- Whilst it is noted that you sustained a right ankle sprain on 13/5/65, no causation is noted.
- The medical document dated 12/8/65 stated that you injured your left knee while playing football the previous day, however it does not state whether you were on duty at the time.
3.A Medical Certificate stating a current diagnosis of your conditions
4. All medical documents, investigations and reports since your discharge, including a history of treatment
5. Employment history including: name and address of employer, duration of employment, position duties
6.Complete the enclosed Medical Release Authority
11. On 6 April 2004, the Commission wrote to Mr Prendergast reminding him that he had not replied to the letter of 19 February 2004. Mr Prendergast returned the signed Medical Release Authority, providing the name of his general practitioner, Dr Chris Bartram and his treating orthopaedic surgeon, Mr Craig Mills. The only medical report provided was a radiologist’s report dated 25 November 2003 which stated:
…
BOTH KNEES Examination Date: 24/11/03
There is mild joint space narrowing in the medial compartment of the right knee. Small marginal osteophytes are present in medial and lateral compartments. No effusion is noted.
There is considerable joint space narrowing in the lateral compartment with mild valgus angulatio. Minor marginal osteophytic lipping is present in all compartments on this side. No patellar maltracking is apparent.
Comment: Bilateral osteoarthritis, most evident in the lateral compartment of the left knee.
RIGHT ANKLE
There is no effusion. There is an ossicle projected dorsally over the ankle joint, potential loose body.
A moderately large plantar calcaneal spur is noted.
…
12. On 28 April 2004, the Commission wrote to Mr Prendergast seeking the other outstanding documents. The Commission also wrote to Dr Bartram and to Mr Mills seeking information on Mr Prendergast’s condition, when it began, the nature of treatment provided or required and the relationship to his past and future employment. On 29 April 2004, Mr Mills’ office responded that due to heavy demands for reports and his surgery schedule, a report would not be available before the end of September 2004 and indicated the cost of the report.
13. On 3 May 2004, Mr Prendergast advised the Commission that:
…
1.From the day I joined the Army I was never informed ordered or explained to about whether I should keep any records whatsoever or submit any claims on or soon after any accidents or incidents.
2.As a member of the combined Army football side 1964 to 1966, I was injured on numerous occasions, including rolling my right ankle and injuring my left knee.
3.For the past 30 years I have been self employed in managerial roles. Currently I manage our family company in the manufacturing of Sauces throughout Australia.
…
14. On 23 June 2004, the Commission wrote to Dr Bartram again, asking for his response to the questions it had posed two months earlier as the outcome of this claim depends on medical evidence.
15. On 4 August 2004, in response to the Commission’s request of 23 June 2004, the Army’s Legal Administrative Section indicated that their office did not hold an Accident/Injury Report on either condition. An Application for Transfer dated 2 March 1966, signed by Mr Prendergast’s commanding officer, indicated that Mr Prendergast had cartilages removed from both knees and consequently required a transfer to another company until his discharge on 12 August 1966. The Commission was also advised that there was no record of any approval for Mr Prendergast’s participation in sports on his Personal Service Dossier.
16. On 19 August 2004, the Commission’s delegate refused the claims on the basis that there was no evidence about the circumstances in which Mr Prendergast had sustained his injuries, particularly whether he was participating in an approved sporting activity and/or whether he was on duty at the time of the injuries.
17. On 15 September 2004, Mr Prendergast sought review of the delegate’s decision. In his letter seeking review he stated that 12 August 1965 was a weekday and he would therefore not have been playing sport outside the army. He stated that he played Australian Rules football for the combined army side against the navy and air force. He stated that …if the army has lost any records of my sporting and health paperwork, that’s their problem (not mine). He stated that as a private soldier, he was never told by his superiors to keep his health and sporting records for future reference. Mr Prendergast stated that he could use his own health insurance for requisite treatment and could afford to have surgery but as a matter of principle, he wished to pursue compensation as the army doctors had botched the surgery on his knees. He stated that he has a beautiful botanical garden at Mt Macedon that requires maintenance each week so it is imperative that he has his knees and ankle fixed. He commented that if I knew my rights many years ago like I do now don’t you think it would be silly to wait 40 years to find compensation.
18. Following receipt of a letter from the Commission dated 28 September 2004 giving Mr Prendergast 30 days to provide further evidence, he contacted the Commission and advised that he was to see Mr Mills on 30 November 2004 and would ask for a report. He indicated his awareness that it was his responsibility to meet the cost of the report. On 18 January 2005, the Commission wrote to Mr Prendergast regarding the outstanding medical report and gave him a further 28 days to provide any further medical evidence. The Commission received nothing further from Mr Prendergast. On 2 March 2005, the Commission affirmed the decision on the basis that Mr Prendergast had not complied with s 16(1) of the 1930 Act.
19. In his oral evidence Mr Prendergast expanded on the comments he had made in his correspondence to the Commission, particularly that he was seeking compensation out of principle. He stated that he has not yet had knee replacement operations for either knee. He said that such operations could be undertaken within the next few months or in five years’ time. Mr Prendergast said that his knees were locking up until Mr Mills went in and cleaned them all out, getting rid of a lot of gunk that had been in there. In response to the Tribunal’s question as to whether he had evidence that his current problems were due to the football injuries, he stated that Mr Mills had said so. Mr Prendergast acknowledged that he had not provided any medical opinion from Mr Mills nor was he proposing to call him to give oral evidence. He said that Mr Mills was supposed to be sending a report to the Tribunal. When the Tribunal queried the lack of response from Dr Bartram to the Commission’s request for a report, Mr Prendergast indicated that he sees Dr Bartram regularly but thought that the Commission would chase up the report.
20.Mr Prendergast told the Tribunal that the injuries were not just due to football.
….it is ludicrous to think it is football. You know, I had 56 fights in the ring. I never broke one bone in my body. I did this not just in football, I did this as a course. When you jump off towers, your full pack, your full gear – football is infinitesimal. To me, football was the end result of it all. It was the one that just did the last little tear. But when you go right through it, can you understand 40-mile route marches full pack?...
21. Mr Prendergast’s brother, Douglas Ian Prendergast, provided a written statement dated 25 August 2005 in which he stated:
…I served with the Australian Regular Army from April 1960 for exactly six (6) years in the Artillery Corp…finishing my service with the rank of Bombardier.
In 1963, my youngest brother, Ronald Maxwell Prendergast, also joined the Army for a period of three (3) years serving in the Infantry Corp. During this time we had fairly regular contact with each other.
As sportsmen, I was Captain of the North Head Rugby Team and once was chosen to represent the Artillery Corp in an Inter Service match against the NSW Police.
My brother Ron was an even better Australian Rules player who represented the Infantry Corp and played for the Army team.
I can verify the above as I saw him play on various occasions at Trumper Park, Glenmore Road, Paddington.
I estimate the above occurred in the 1964 or 1965 seasons or even both.
…
22. Mr Prendergast told the Tribunal that he injured his left knee playing the navy at the naval base at Nowra. He said that the army team had travelled by bus to Nowra from Holdsworthy. He said that he had hobbled off the ground following the injury.
23. Under cross-examination he explained the difference between his earlier statements that the injury occurred at Holdsworthy and his current evidence that it was at Nowra by stating that the first twinge was at Holdsworthy and then the real damage occurred at Nowra. He said that the third time he experienced the pain might have been at Williamstown. He could not recall the specific date, just the pain. He said that he did not go to the doctor the first time he hurt his left knee. When asked about a motor vehicle accident he was involved in on 6 December 1963, he initially denied that his knee had been injured but eventually agreed that he had received a settlement but believed that it was confidential, which was why he had denied it. When asked about why he now claimed it was not just football that caused the injuries that were the subject of the review, he said that he had concentrated on that because they were described in the sick reports. It was difficult to remember dates and details from so long ago. He conceded that he might have had sports-related injuries on other occasions before and during service. He also conceded that he had not seen any doctor at all between 1996 and 2003 in relation to his knees. He said that he had seen a physiotherapist from 1974, namely Mr Bartram. He said that Mr Bartram is not his general practitioner. His general practitioner is Dr Conroy whom he has been seeing on and off for about the last five years. He also gave evidence about another serious accident that he had involved in during 1972 as well as a workers’ compensation claim in about 1990.
24. Mr Prendergast said that he was ignorant of his entitlements at the time of injury. He said that he had not thought about seeking compensation until some ex-army friends suggested that he do so due to the osteoarthritis from which he now suffered. He stated that the army had acknowledged his right knee injury and so it should also accept the left knee injury. Ms McMahon of counsel, representing the Commission, pointed to a significant number of contemporaneous records providing evidence that in 1963, Mr Prendergast had injured his right knee while wall jumping during training. This differed from the situation concerning the injuries to the left knee and right ankle.
Should Mr Prendergast’s lack of compliance with s 16 of the 1930 Act preclude his claim for compensation?
25. Mr Prendergast lodged his claim in 2003 under the provisions of the 1988 Act. Section 124 of the 1988 Act requires the Tribunal to look at his claim under the provisions of the 1930 Act:
124 Application of Act to pre-existing injuries
(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) …
(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;
…
26.Section 4(1) of the 1930 Act (as at the 1950 reprint) gives the definition of injury as:
…any physical or mental injury and includes the aggravation, acceleration or recurrence of a pre existing injury.
27.Section 16(1) of the 1930 Act sets out the time limits for making a claim for compensation for an injury:
16(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 the 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.
…
28. Mr Prendergast stated that he had not lodged his claim within six months of the injury because he was ignorant of his rights.
29. Ms McMahon submitted that the pertinent case law does not allow the applicant’s ignorance of his rights to be a reason for exercising the discretion available in s 16 of the 1930 Act where the claim is lodged out of time. Ms McMahon also submitted that Mr Prendergast did not meet any of the other grounds that allowed for the exercise of discretion.
30. Ms McMahon cited the prejudice to the Commission that would be caused by the exercise of the discretion. The prejudice includes an inability to have Mr Prendergast examined at any time in the 40 years since his discharge; an inability to identify, locate or speak to witnesses, supervisors, or other participants about the football matches or the injuries and an inability to locate records of the football matches due to the effluxion of time; no records or opinions from doctors currently treating Mr Prendergast relating his current left knee or right ankle conditions to his army football injuries; and a number of other examples of prejudice. Mr Prendergast conceded that he had not given notice of the injury until November 2003. Ms McMahon submitted that the medical records citing the treatment for the injury and noting a connection with football do not constitute the notice of the claim required by s 16(1) of the 1930 Act. The Tribunal accepts that the Commission is prejudiced because of the late notice of the claim for compensation.
31. There is no evidence, nor did Mr Prendergast claim, that he did not give notice of the injury because he was out of Australia. He stated that he did not do so because he was ignorant of his entitlement to do so. Pertinent case law indicates that a person’s ignorance of his entitlement to lodge a claim until later than six months after the injury cannot be classified as mistake or reasonable cause (Commonwealth of Australia v Connors (1989) 86 ALR 247). The reason for a claimant’s ignorance cannot be taken into account. Mr Prendergast did not claim that there was any other reasonable cause for his failure to give notice within six months of the injuries; nor is the Tribunal able to identify any other reason.
32. The Tribunal finds that at the time of his injuries and at the time of his discharge from the army, Mr Prendergast was not aware of his entitlement to claim compensation. There was no mistake, relevant absence from Australia or other reasonable cause for his failure to give the Commission notice of his injuries within six months of having sustained the injuries. Therefore, Mr Prendergast does not satisfy s 16(1) of the 1930 Act and he cannot succeed in his application.
Would The Outcome Be Any Different If The Lateness Of The Claim Had Been Excused?
33. Mr Prendergast did not provide any medical records or opinions or other relevant evidence linking his current conditions with his injuries in the 1960s. Mr Mills, his orthopaedic surgeon, did not provide a written report nor was he called to give oral evidence. Mr Prendergast did not provide any evidence from the physiotherapist he attends or from his general practitioner. He gave evidence that he did not consult a doctor about his knees or ankle between 1996 and 2003. There was also evidence that Mr Prendergast had been involved in a motor accident while off duty, which may also have aggravated his knee condition; although the Tribunal was not provided with records of this.
34. The Tribunal accepts the evidence from Mr Prendergast and his brother that Mr Prendergast played football for the army. However, there is no expert evidence linking Mr Prendergast’s current medical condition to injuries during his army service. Based on the available evidence, the Tribunal would not have been able to make a decision in Mr Prendergast’s favour even if it was in a position to waive the notice requirements in s 16(1) of the 1930 Act.
DECISION
35.The Tribunal affirms the decisions under review.
I certify that the thirty-five [35] preceding paragraphs are a true copy of the reasons for the decision of:
Regina Perton, Member
(sgd) Lydia Zozula
Associate
Date of hearing: 5 May 2006
Date of decision: 29 September 2006
Applicant: self-represented
Counsel for respondent: Ms A. McMahon
Solicitor for respondent: Phillips Fox
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