Raymond and Comcare - [2002] AATA 781

DECISION AND REASONS FOR DECISION [2002] AATA 781

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/610

GENERAL ADMINISTRATIVE DIVISION       )
           Re      MARTIN RAYMOND
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Ms G Ettinger - Senior Member

Date10 September 2002
PlaceSydney

Decision The Administrative Appeals Tribunal affirms the decision of the Department of Veterans' Affairs dated 30 March 2001 which held there was no liability to pay Mr Martin Raymond, the Applicant in these proceedings lump sum payment for permanent impairment for bilateral sensori-neural hearing loss with tinnitus.

[SGD] Ms G Ettinger
Senior Member
CATCHWORDS
Compensation - veteran - claim under 1930 Act - 41 years later – whether mistake of the Commonwealth or the Applicant – whether prejudice to the Commonwealth - decision affirmed

LEGISLATION
Commonwealth Employees' Compensation Act 1930 – 1956 ss 12(1); 16(1)
Safety, Rehabilitation and Compensation Act 1988 - ss 24, 27, 123A, 124
Veterans' Entitlements Act 1986 - s 119(1)

CASE LAW
Re Muras v Department of Defence (1998) 52 ALD 579
Scott-Holland v Commonwealth of Australia (1983) 46 ALR 328
Re Willis v Australian Telecommunications Commission (1989) 19 ALD 665
Commonwealth of Australia v Connors (1989) 86 ALR 247
Telstra Corporation Limited v Roycroft (1997) 77 FCR 358
Secretary of the Department of Veterans' Affairs v Studdert [2001] FCA 1642
Re Loft v Comcare (1996) 52 ALD 606
Secretary of the Department of Defence v Gorton (2000) 98 FCR 497

REASONS FOR DECISION

10 September 2002 Ms G Ettinger - Senior Member

The decision under review before the Administrative Appeals Tribunal ("the Tribunal"), was the decision of the Department of Veterans' Affairs dated 30 March 2001 (T36) which stated as follows in relation to a claim by Mr Martin Raymond, the Applicant in these proceedings:
"I refer to a letter dated 15 February 2001 requesting a reconsideration of the determination dated 27 September 2000.
That determination disallowed your claim for compensation for permanent impairment in respect of "bilateral sensori—neural hearing loss".
Having conducted the reconsideration as requested, I have decided it is appropriate to conduct a reconsideration of own motion of the Determination dated 21 June 2000 pursuant to Section 62 of the SRCA. The Determination dated 21 June 2000 accepted liability to pay your compensation for bilateral sensori-neural hearing loss with tinnitis (sic) with the date of the injury deemed to be on 1 January 1958.
decision
I revoke the Determination dated 21 June 2000 which accepted liability to pay you compensation for your condition of bilateral sensori-neural hearing loss and tinnitis (sic). Instead I decide that your claim for compensation for partial deafness -- left ear made by claim form dated 13 May 1999 is disallowed and denied.
Further, and I affirm the Determination dated 27 September 2000."
The Applicant appealed the decision to the Tribunal 5 May 2001.
The Applicant was represented by Mr J Fitzgerald of counsel briefed by Rockcliffs Solicitors and the Respondent, Comcare, by Mr J Johnson of counsel briefed by the Australian Government Solicitor. The Respondent…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Raymond and Comcare

Details

AGLC: Raymond and Comcare [2002] AATA 781
Case: [2002] AATA 781
Decision Date: 10 September 2002

CaseChat Overview and Summary

The case of Raymond and Comcare involved a claim for compensation under the Commonwealth Employees' Compensation Act 1930 – 1956 by Mr Martin Raymond, who sought compensation for bilateral sensori-neural hearing loss with tinnitus resulting from an explosion during his service in May 1959. Mr Raymond lodged his claim 41 years later, in May 1999. The Department of Veterans' Affairs initially accepted liability but later revoked this decision, leading to an appeal by Mr Raymond to the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether Mr Raymond's claim was admissible under the 1930 Act despite the significant delay in lodging it, and whether the failure to notify and claim within the stipulated six-month period was due to a mistake or other reasonable cause that could excuse the non-compliance. This hinged on interpreting the provisions of section 16 of the 1930 Act, which mandates timely notification and claim submission for compensation eligibility.

The Tribunal examined the statutory requirement for timely notification and claim submission, as well as the exceptions allowing claims to be considered despite late filing. Mr Fitzgerald argued that Mr Raymond's immediate reporting of the incident to his superior and the lack of medical examination at discharge mitigated against holding Mr Raymond responsible for the absence of formal notification. Conversely, Mr Johnson highlighted the strict adherence to statutory timelines as critical, citing previous cases that underscored the necessity of strict compliance with claim procedures. The Tribunal concluded that despite Mr Raymond's immediate reporting of the incident, the claim was not admissible because it was not lodged within the required six-month period and no reasonable cause for the delay was established.

The Tribunal ultimately affirmed the decision of the Department of Veterans' Affairs, disallowing Mr Raymond's claim for compensation. The Tribunal held that the statutory requirement for timely notification and claim submission was mandatory and could not be waived based on the circumstances of this case.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The decision under review before the Administrative Appeals Tribunal ("the Tribunal"), was the decision of the Department of Veterans' Affairs dated 30 March 2001 (T36) which stated as follows in relation to a claim by Mr Martin Raymond, the Applicant in these proceedings:"I refer to a letter dated 15 February 2001 requesting a reconsideration of the determination dated 27 September 2000.That determination disallowed your claim for compensation for permanent impairment in respect of "bilateral sensori—neural hearing loss".Having conducted the reconsideration as requested, I have decided it is appropriate to conduct a reconsideration of own motion of the Determination dated 21 June 2000 pursuant to Section 62 of the SRCA. The Determination dated 21 June 2000 accepted liability to pay your compensation for bilateral sensori-neural hearing loss with tinnitis (sic) with the date of the injury deemed to be on 1 January 1958.decisionI revoke the Determination dated 21 June 2000 which accepted liability to pay you compensation for your condition of bilateral sensori-neural hearing loss and tinnitis (sic). Instead I decide that your claim for compensation for partial deafness -- left ear made by claim form dated 13 May 1999 is disallowed and denied.Further, and I affirm the Determination dated 27 September 2000." The Applicant appealed the decision to the Tribunal 5 May 2001. The Applicant was represented by Mr J Fitzgerald of counsel briefed by Rockcliffs Solicitors and the Respondent, Comcare, by Mr J Johnson of counsel briefed by the Australian Government Solicitor. The Respondent had been shown as the Department of Veterans' Affairs in some of the documentation before the Tribunal, but it was agreed at the hearing that Comcare was the Respondent in this matter. ISSUE BEFORE THE TRIBUNAL The Tribunal had to decide whether Mr Raymond was eligible for compensation for bilateral sensori-neural hearing loss with tinnitus pursuant to the Commonwealth Employees' Compensation Act 1930 – 1956, claimed to have been suffered when an explosion occurred during the course of his duties in a centurion tank during May 1959, at a time he claimed he had been wearing faulty protective ear coverings, and had removed the left side.LEGISLATIVE CONTEXT The relevant legislation in this matter is the Commonwealth Employees' Compensation Act 1930 – 1956 ("the 1930 Act"), in particular sections 12(1), 16(1) which follow as relevant:"12.(1) Subject to this Act, where an employee sustains, by accident arising out of or in the course of his employment, any of the injuries specified in the first column of the Third Schedule to this Act, the compensation payable shall, when the injury results in incapacity other than total and permanent incapacity for work, be the amount specified in the second column of that Schedule opposite the specification of the injury in the first column. 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 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.(2) Notice in respect of any injury to which this Act applies shall contain the name and address of the person injured, and a statement in ordinary language of the cause of the injury and the date at which the accident happened.(3) The notice may be served by sending it by post in a registered letter properly addressed to the Permanent Head or Chief Officer of the Department or authority in or by which the employee was employed at the time of the accident, or by delivering it at the head office of the Department or authority or to the officer in charge of the work on which the employee was so employed, or in any other prescribed manner."

Ratio Decidendi

Legal Principle Established

Having accepted then that the incident in May 1959 caused Mr Raymond's hearing loss, I had still to consider his position pursuant to section 16 of the 1930 Act, that is whether his claim could be considered outside of the six months period in which he was required to lodge a claim, and whether he suffered incapacity as a result of the incident.consideration of section 16 of the 1930 ACT Mr Fitzgerald in referring to section 16 of the 1930 Act, acknowledged that there was a notification requirement of six months with regard to claims for compensation in section 16(1)(a) of the 1930 Act, but submitted that pursuant to section 16(1)(i) of the 1930 Act, the Commonwealth was not prejudiced by the absence of notification because Mr Raymond had notified the Army of the incident the day it happened in May 1959. The employer therefore knew of it at the outset Mr Fitzgerald submitted, and Mr Raymond could not be held responsible for the absence of records, particularly as there had been no medical examination conducted on discharge. I was mindful that notwithstanding that the Respondent had conceded Mr Raymond did not know of his rights within the six month period following his accident, and indeed accepted that had he known he would have made a claim as appropriate, Mr Johnson submitted that pursuant to Re Muras v Department of Defence (1998) 52 ALD 579 notification of the accident as soon as practicable after it had happened, and a claim for compensation within six months from the occurrence of the accident were required for the claim to be admitted or entertained. Mr Johnson referred me to paragraph 24 of Muras (supra), where Deputy President McMahon stated as follows:"The applicant did not suffer a latent injury. The effects of the motor vehicle accident were frank and immediate. From the very beginning, the applicant was aware of the seriousness of his injuries. He continued to be aware during the six months period, when notice should have been given, and a formal claim should have been made. It is during this six months period that one must look at claims of the existence of mistake or other reasonable cause: Re Willis and Australian Telecommunications Commission (1989)19 ALD 665; 10 AAR 382 at 394. It could not be said in this case that mistake as to the benign nature of the injuries may have caused a want of notice." Mr Fitzgerald submitted that the situation in Muras (supra) was entirely different in that Mr Muras attended at a naval hospital for treatment, but that he did not actually report his accident as Mr Raymond had. I was mindful of the evidence of Mr Raymond that he had reported the incident to Captain Droltz immediately after it occurred, and twice attended at the RAP in that regard. I noted further that Mr Fitzgerald also submitted that Mr Raymond could have been, but was not examined on discharge. Mr Johnson, referred also to Scott-Holland v Commonwealth of Australia (1983) 46 ALR 328, submitting in regard to section 16 of the 1930 Act that "admit" in the section was pursuant to the abovenamed case intended to be read to mean "entertain" or "consider on the merits", rather than "grant". Ellicott J had stated at 334: "The word 'admissible' according to the Shorter Oxford English Dictionary means allowable". I noted further that in Scott-Holland (supra) at 334, Ellicott J had referred to Australian National Airlines Commission v Cassidy (1964) 110 CLR 172, stating: "In Australian National Airlines Commission v Cassidy (1964) 110 CLR 172; [1964] ALR 780, it was held that the word 'admit' in s 16 of the 1930 Act meant 'entertain' not 'grant'. In other words, it meant that the Commissioner should not hear a claim. This connotation of the word is, however, not in dispute in this case. The appellant argued the matter on the basis that 'admit' in s 16 meant 'entertain'. In my opinion, the Tribunal did not err in law in holding that the two claims relating to physical injury should not have been entertained by the Commissioner's delegate. The correct interpretation of s 104(12)(b) is that it was intended to ensure that a person who suffered injury whilst the 1930 Act was in force the symptoms of which were then apparent would have no greater right of recovery under the 1971 Act, so far as that right was confined by obligations to give notice and make a claim, than was had under the 1930 Act.When the words 'a claim by a person under the 1930 Act was 'not admissible' are read in the light of Cassidy's case I think they mean 'a claim by a person under that Act would not have been entertained.'"