Re Buttfield and Comcare

Case [2001] AATA 335

DECISION AND REASONS FOR DECISION [2001] AATA 335

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N1999/847

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      ANDREW BUTTFIELD    
  Applicant
           And    COMCARE  
  Respondent

DECISION

Tribunal       M J Sassella, Senior Member      

Date24 April 2001

PlaceSydney

Decision      The Tribunal decides:

1.   to set aside the reviewable decision; and

2. to remit the matter to the Respondent with the direction that the Applicant's claim for compensation for binaural hearing loss meets the requirements of ss 53 and 54 of the Compensation (Commonwealth Government Employees) Act 1971 regarding late notice and claim and is to be admitted for consideration; and

3.   to order the Respondent to pay the Applicant's costs of these proceedings in accordance with the General Practice Direction of the Tribunal

[Sgd] M J Sassella
  Senior Member
CATCHWORDS
Workers' Compensation – Tribunal jurisdiction - binaural hearing loss – tinnitus – lodging compensation claim more than six months after onset of injury – prejudice to the respondent – unavailability of medical records – unavailability of witnesses – lack of awareness of claimed condition – exposure to high noise levels – Snowy Mountains Hydro Electricity Authority - industrial deafness - financial assistance for the supply of hearing aids – transitional provisions – compensation for medical expenses – other reasonable cause
Commonwealth Employee's Compensation Act 1930, s 16
Compensation (Commonwealth Government Employees Act 1971, ss 53, 54
Safety, Rehabilitation and Compensation Act 1988, ss 7(4), 123A, 124(1), (1A), (2)(b), (c), (3)(b), (4), (8), (9)(b), (c), (10)(b), (c), 126(1), (2)

Re Otis and Telstra Corporation [1999] AATA 668
Comcare v Luck (1999) 29 AAR 403
Re Muras and Department of Defence (AAT 13196, 21 August 1998)
Secretary of the Department of Defence as a Delegate of Comcare v Gorton [2000] FCA 416
Comcare Australia v Maguire (1996) 68 FCR 329
Re Quinn and Comcare [1999] AATA 607
Re Vickery and Commonwealth of Australia (AAT 2251, 26 July 1985)
Re Australian Telecommunications Commission and Formoso (1985) 8 ALD 191
Banks v Comcare [1996] FCA 382
Re Hanson and Comcare (1996) 41 ALD 639

REASONS FOR DECISION

24 April 2001           M J Sassella, Senior Member                  

History of the application

  1. On 4 January 1999 Comcare ("the Respondent") received a claim for rehabilitation and compensation from Andrew Buttfield ("the Applicant") in respect of binaural hearing loss (T5).  He stated on the form that he had constant tinnitus and had difficulty hearing "when there is background noise".  He attributed the condition to his periodic employment with the Snowy Mountains Hydro Electricity Authority ("the Authority"), where he was exposed to explosives and air drilling.

  2. On 23 February 1999 the Respondent notified the Applicant that the claim in respect of binaural hearing loss had been disallowed (T8).  The claim was refused because notice of the claimed injury had been served on the Respondent some 38 years after the Applicant had ended his employment with the Authority.  Pursuant to s 16 of the Commonwealth Employee's Compensation Act 1930 ("the 1930 Act"), the relevant legislation in this matter, any…

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Re Buttfield and Comcare [2001] AATA 335
Case
[2001] AATA 335
Decision Date

CaseChat Overview and Summary

In the case of Re Buttfield and Comcare, the Administrative Appeals Tribunal (AAT) examined the claim of Mr Buttfield for workers' compensation related to his binaural hearing loss and tinnitus. The dispute arose from Comcare's refusal to accept Mr Buttfield's compensation claim, which he lodged more than six months after the onset of his hearing difficulties. Comcare argued that the delay in lodging the claim prejudiced their ability to investigate the circumstances and gather evidence. The AAT was tasked with determining whether Comcare's refusal was justified and whether the claim should be admitted for consideration.

The primary legal issues the AAT addressed were whether the delay in lodging the claim constituted a valid reason for Comcare to refuse the claim and whether the unavailability of medical records and witnesses due to the passage of time and the lack of awareness of the claimed condition constituted sufficient grounds to deny compensation. The AAT also considered the applicability of transitional provisions and whether there was 'other reasonable cause' under the relevant statutes to admit the claim despite the delay.

The AAT found that the delay in lodging the claim did not necessarily preclude the acceptance of the claim for compensation. The Tribunal emphasised that the delay alone did not prejudice Comcare to the extent that it could not assess the claim on its merits. The Tribunal also highlighted that Mr Buttfield had been exposed to high noise levels during his employment, which contributed to his hearing loss. The AAT concluded that the unavailability of medical records and witnesses due to the delay and Mr Buttfield's lack of awareness of his condition at the time did not preclude the acceptance of the claim. The Tribunal found that the circumstances amounted to 'other reasonable cause' under the applicable legislation, allowing the claim to be admitted for consideration.

The AAT set aside Comcare's decision to refuse Mr Buttfield's claim and remitted the matter to Comcare with directions to admit the claim for consideration. The Tribunal also ordered Comcare to pay Mr Buttfield's costs of the proceedings in accordance with the General Practice Direction of the Tribunal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Buttfield rejected the suggestion that he had not notified Comcare or the Authority of these developments in 1995. He had approached his solicitors who traced his former employers over a two-year period. He did not claim against Comcare at that time because of advice from his solicitor. Mr Buttfield agreed that he was aware of the possibility of making a claim since 1965. Counsel observed that this was somewhat at odds with a statement made by his solicitors in the letter seeking a reconsideration. In that letter the solicitors wrote, "The applicant was, for many years, ignorant of the compensable injury and after becoming aware of the condition and the causative link with his employment duties a claim was lodged." The Applicant stated that he started action towards claiming compensation in 1995 because compensation coverage would be useful in obtaining a hearing aid. Medical evidence Dr J Scoppa reported to Mr Buttfield's solicitors on 16 October 1995 (T4). He described the Applicant's difficulties hearing when there is background noise, such as at cocktail parties. He also has tinnitus. The Applicant's employment history is largely marketing and sales and other reasonably quiet work. The exceptions were 10 years at Noyes Brothers where his duties required him to visit power stations about 30% of the time. At the power stations there could be noise from turbines and steam safety valves. Most of the time, however, he was not near these sources of noise. While working for the Authority, in two of the three years, he was in survey gangs which were exposed to a great deal of noise. "He worked underground as well as on the surface. He had been exposed to noise from explosives, air drills and heavy equipment associated with the Snowy Mountains Scheme. In particular he remembers a rig with 48 pneumatic drills, which was operating against a rock face. He said that this was incredibly noisy. He said that he was exposed to noise during this period of time approximately 2 or 3 days each week. Ear protection had not been provided. He also recalls one particular explosion underground that was extremely loud." Dr Scoppa noted that Dr Davies had performed audiometric tests in 1965 and 1973 and had discovered some degree of hearing loss. On 12 October 1995 a fresh set of tests was completed (T4) which showed a bilateral high tone sensorineural hearing loss consistent with industrial deafness. Mr Buttfield had a sensorineural hearing loss of 17.9% for the left ear and 10.6% for the right ear. In his "opinion" Dr Scoppa writes: Ms Sharpe stressed that Mr Buttfield first sought treatment for his hearing loss in August 1995 when he saw Mr Russell (Exhibit A3). The purpose in claiming compensation is for Mr Buttfield to receive financial assistance for the supply to him of hearing aids. Ms Sharpe submitted that this was properly a claim under the 1988 Act rather than the 1930 Act. She referred to s 7(4) of the 1988 Act which provides that an employee is to "be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when (a) the employee first sought medical treatment for the disease or aggravation; …".

Decision

Reasons for decision

The Tribunal has therefore decided, by a circuitous route, that the Applicant's claim in respect of binaural hearing loss should be entertained by the Respondent.Decision The Tribunal decides:1. to set aside the reviewable decision; and2.to remit the matter to the Respondent with the direction that the Applicant's claim for compensation for binaural hearing loss meets the requirements of ss 53 and 54 of the Compensation (Commonwealth Government Employees) Act 1971 regarding late notice and claim and is to be admitted for consideration; and3.to order the Respondent to pay the Applicant's costs of these proceedings in accordance with the General Practice Direction of the Tribunal.

Ratio Decidendi

Legal Principle Established

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