Rogers and Military Rehabilitation and Compensation Commission
[2007] AATA 1164
•23 March 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1164
ADMINISTRATIVE APPEALS TRIBUNAL)
) Q2005/209, Q2006/20
VETERANS' APPEALS DIVISION )
Re MICHAEL ROGERS Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Mr SC Fisher, Member Date23 March 2007
PlaceBrisbane
Decision
The Tribunal decides that the decision under review is set aside. The determinations dated 19 January 2004 and 27 May 2004 are varied to provide that the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act") applies in relation to the Applicant's injury. The Applicant's claim should be determined pursuant to the relevant provisions of the Compensation (Commonwealth Government Employees) Act 1971 and the Safety, Rehabilitation and Compensation Act 1988.
...................[Sgd].........................
Member
CATCHWORDS
WORKERS’ COMPENSATION – back injury – applicant was an RAAF airframe fitter in 1977 when he claims the injury arose – whether work-related injury – application of section 54 of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) – consideration of whether claim was made out of time – whether allowing late claim would be prejudicial to Respondent – consideration of the meaning of ‘mistake’ and ‘ignorance’ – decision set aside
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14, 19, 53, 67, Part VI
Compensation (Commonwealth Government Employees) Act 1971 (Cth) s 54
Administrative Appeals Tribunal Act 1975 (Cth) ss 37, 43Secretary, Department of Social Security v Murphy (1998) 52 ALD 268; [1998] FCA 809
Ajka Pty Ltd v Australian Fisheries Management Authority (2003) 74 ALD 21; [2003] FCA 248
Bantick and Secretary, Department of Family and Community Services [2003] AATA 472
Bramwell v Repatriation Commission (1998) 158 ALR 623; (1998) 28 AAR 342; (1998) 51 ALD 56
Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598; (1981) 58 FLR 407; (1981) 4 ALD 198
Chowhan and Secretary, Department of Family and Community Services (2004) 85 ALD 444; [2004] AATA 1236
Gualano and Comcare [2006] AATA 154
Telstra Corporation Ltd v Roycroft (1997) 77 FCR 358; (1997) 47 ALD 671
Ernest Boothman and Military Rehabilitation and Compensation Commission [2004] AATA 1002
Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534
Banks v Comcare Australia, Federal Court, 22 May 1996, 382/96REASONS FOR DECISION
23 March 2007 Mr S C Fisher, Member
Introduction and Background
1. Mr Michael Rogers ("Mr Rogers " or "the Applicant") was a member of the Royal Australian Air Force from 11 November 1975 until his voluntary discharge on 10 November 1984.
2. This appeal involves claims for compensation under the Safety, Rehabilitation and Compensation Act 1988 ("the Act”).
3. On 3 September 2003 and 21 December 2003, the Applicant submitted claims for compensation to the Military Compensation & Rehabilitation Service for a back condition, depression, alcoholism, reflux, duodenal ulcer and sensori-neural hearing loss. These conditions are said to have risen in 1977.
4. On 19 January 2004, the Respondent made a determination which disallowed the Applicant's claims for compensation. The basis for this was the absence of evidence of a probable connection between the military service of the Applicant and his medical conditions.
5. On 3 February 2004, the Applicant requested a reconsideration of the 19 January 2004 determination and provided additional supporting medical evidence.
6. On 30 March 2004, the Respondent advised the Applicant that because his medical conditions arose in 1977, he was covered by the Compensation (Commonwealth Government Employees) Act 1971 (Commonwealth). The Respondent advised the Applicant that his claim was out of time.
7. On 27 May 2004 the Respondent affirmed the 19 January 2004 decision. The Respondent decided that the failure on the part of the Applicant to lodge a claim within time was explained by ignorance, and hence the claim was made in time. The Respondent decided that the back problems of the Applicant were caused by his post-RAAF employment rather than from his short-term episodic back problems whilst with the RAAF.
8. On 5 January 2006 the Applicant appealed to this Tribunal.
Jurisdiction
9. The Tribunal has jurisdiction in this appeal by virtue of Part VI of the Safety, Rehabilitation and Compensation Act 1988. References to statutory provisions are to provisions of this Act unless the context indicates otherwise.
The Role of the Tribunal
10. The role of the Tribunal is to review the merits of the decision before it: section 43 of the Administrative Appeals Tribunal Act 1975 and Secretary, Department of Social Security v Murphy (1998) 52 ALD 268; [1998] FCA 809. The Tribunal is guided by the norm that it should reach the “correct and preferable decision on the basis of the material before it”: Ajka Pty Ltd v Australian Fisheries Management Authority (2003) 74 ALD 21 at 31; [2003] FCA 248 at [33]. “The Tribunal is required to stand in the shoes of the original decision-maker and consider all evidence anew, bearing in mind statutory provisions and any significant legal precedent”: Bantick and Secretary, Department of Family and Community Services [2003] AATA 472 at [23]. The Tribunal proceeds de novo: Bramwell v Repatriation Commission (1998) 158 ALR 623; (1998) 28 AAR 342; (1998) 51 ALD 56 at 60 per Weinberg J. The Tribunal must base its decision upon the material that is logically probative of the existence of facts that emerge from the evidence before it: Collins v Minister for Immigration and Ethnic Affairs(1981) 36 ALR 598 at 601.
11. In Chowhan and Secretary, Department Of Family And Community Services (2004) 85 ALD 444 at 450, Member Christie said the following about the process of Tribunal review, which this Tribunal gratefully adopts:
“[32] The legislation is the only basis for the review of this administrative decision. Administrative decision-makers are not permitted to depart from the law. The Tribunal must make its decision on the merits of the case – but in accordance with the legal requirements imposed by the Act, together with the relevant legal principles that arise from decisions made by our courts.
[33] Administrative decision-makers are generally required to address the evidence before them and not confine themselves to evidence before a prior decision-maker whose decision is being reviewed unless the relevant legislation requires a decision to be based upon the circumstances at a particular point of time: see Australian Tea Tree Oil Research Institute v Industry Research and Development Board (2002) 124 FCR 316 at 324-326; Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511 at 521; Jebb v Repatriation Commission (1988) 80 ALR 329 at 333). In Jebb, at 333, approved by Stone J in Australian Tea Tree Oil at FCR 325, Davies J described decision-making in the tribunal as generally a ‘continuum’ in which ‘the tribunal considers the applicant’s entitlement from the date of application, or other proper commencing date, to the date of the tribunal’s decision’.”
The Material Before the Tribunal
12.The following documentary evidence was before the Tribunal:
Exhibit 1 Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (documents T1 – T 36) (in matter Q2005/209).
Exhibit 2Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (documents T1 – T 26) (in matter Q2006/20).
Exhibit 3Statement of Michael Rogers dated 25 July 2005.
Exhibit 4Statement of Michael Rogers dated 5 September 2005.
Exhibit 5Statement of Michael Rogers dated 21 November 2005.
Exhibit 6Statement of Michael Rogers filed 31 March 2006.
Exhibit 7Statement of Anthony Reis dated 5 June 2006.
Exhibit 8Workers Compensation File
Exhibit 9Statement of Michael Rogers dated 19 September 1995
Exhibit 10Excerpts from Dr Wong's Medical Records of the Applicant.
Exhibit 11Medical report from Dr John Gibbons dated 9 June 1998.
Exhibit 12Medical Report of Associate Professor Bruce McPhee dated 7 April 2006.
Exhibit 13Letter from Shannon Railton (AGS) to Professor McPhee dated 20 March 2006
13. The Applicant was represented by Mr N Jarro of Counsel instructed by Gilshenan & Luton Lawyers. The Applicant provided a Statement of Facts and Contentions to the Tribunal. Exhibits 3 – 6 were filed on behalf of the Applicant.
14. The Respondent lodged documents under section 37 of the Administrative Appeals Tribunal Act 1975 in relation to each appeal as described above. These documents were taken into evidence as Exhibits 1 and 2. Exhibits 7 – 13 were also filed on behalf of the Respondent.
15. The Respondent was represented by Mr CJ Clark of Counsel, who was instructed by the Australian Government Solicitor. The Respondent provided a Statement of Facts and Contentions to the Tribunal.
16. The Tribunal considered carefully all of the documentary and oral evidence before it.
Evidence on behalf of the Applicant
17. The Applicant gave evidence in person.
Evidence of the Applicant
18. The oral and written evidence of the Applicant is summarised in the following account:
A.The Applicant said that he had been involved in a motor vehicle accident in 1975 before his enlistment later that year. The Applicant said that he had been diagnosed with whiplash and had one episode of chiropractic treatment.
B.The Applicant said he worked as an airframe fitter (aircraft mechanical engineer) between 1975 – 1984 whilst with the Air Force.
C.The Applicant said that in the Air Force, he had to work with raising and removing and working on the wheels on Canberra Bombers (which weighed approximately 35 - 40 kg). The Applicant said that he had a backache while doing this task (which spanned three months). The Applicant said that he had lower back, buttocks and groin pains and had to have traction treatment and valium. The Applicant said that there was no rehabilitation, and that he had to return to work straight away.
D.The Applicant explained that he had had low back pain during his service, and that by the time he was discharged on 10 November 1984, he had adapted to his low back pain. The Applicant said that to be voluntarily discharged, he had to be "100% fit", and this explains why his discharge records read that way.
E.The Applicant said that in his post-discharged employment, he worked as a maintenance fitter for about a year, and left with low back pain during that time.
F.The Applicant said that in approximately mid-2002, there was a marked deterioration in his back.
G.The Applicant said that in 1995, he twisted his back on a construction site where he was working on repairing a conveyor belt. He lodged a claim with Workers Compensation Queensland.
H.In connection with his Supplementary Statement (Exhibit 4), the Applicant said that his workers compensation claim was in connection with his upper back, not his lower back.
I.The Applicant admitted that his entry history questionnaire (dated 27 August 1975) stated that he did not have any back injury, pain or disability.
J.An Outpatient Consultation Record recording entries on 27 and 29 June 1977 referred to right groin pain for an inguinal hernia. The Applicant admitted that he did not mention back pain at this time.
K.The Applicant agreed in cross-examination, that his first mention of back pain was in August 1978 when he complained of back pain in the lumbar sacaral/ mid-thoracic region.
L.The Applicant agreed in cross-examination that he complained of a painful back in May 1979 which he had had for a period of about two weeks whilst working as an airframe fitter.
M.The Applicant admitted in September 1984 when he completed his medical discharge review the entry "back pain occasionally no disability caused " summed up the situation concerning his back at that time.
N.The Applicant admitted in cross-examination that he had not made mention of low back pain to his treating GP, Dr Wong except on one occasion in late 2001.
O.The Applicant admitted in cross-examination that he had lied in omitting references to back pain, but explained in re-examination that he couldn't mention back problems because he would not be able to work.
Evidence on behalf of the Respondent
19. The Respondent did not call any evidence. Exhibit 12 (medical report of Associate Professor Bruce McPhee) was in evidence before the Tribunal.
Medical Report of Associate Professor Bruce McPhee
20. Professor Bruce McPhee provided a medical report dated 7 April 2006 (Exhibit 12). A summary of this evidence is as follows:
A.Associate Professor McPhee diagnosed "degenerative lumbar spondylosis with lumbosacral disc protrusion treated surgically” with an associated radiculopathy.
B.Mr Rogers' current back condition was contributed to a material degree by his military service, even though it is not necessarily the sole cause of that condition (because of a 1995 post-service workplace injury).
C.While Mr Rogers did not suffer any discrete injury to his back, the physical nature of his work in the air force could reasonably be regarded as a significant contributing factor to a developing condition of age-related degenerative lumbar disc disease.
D.The 1980 – 1981 reference to an orthopaedic surgeon and extensive radiological investigation indicated a back problem of some magnitude.
Discussion of Mr Rogers' Evidence
21. There were issues of credit in this case. The Tribunal accepted Mr Rogers as a truthful witness in the main. Cross-examination exposed some inconsistencies in his evidence-in-chief and also some reluctance to answer questions fully where the answers were adverse to his case (for example, the distances travelled on particular outings whilst overseas), but these matters did not amount to major inconsistencies or prevent the Tribunal from accepting the basic thrust of Mr Rogers' evidence. Mr Rogers admitted inconsistencies which came from prior inconsistent statements in the documentary records before the Tribunal.
Discussion of the medical evidence
22. The medical evidence summarised in these Reasons for Decision indicates clearly that the Applicant suffered a back injury during his service with the RAAF.
Issues
23. There are two key issues for determination. The first is whether the Respondent has been prejudiced by the late claim. The second is whether the Applicant’s lower back condition is related to his military service.
Applicant’s Submissions
24. Counsel for the Applicant made the following submissions:
A.The Applicant submitted that the Respondent was not prejudiced by reason of the late claim, being made more than six months after the injury commenced within the meaning of section 54(6) of the Compensation (Commonwealth Government Employees) Act 1971 (Commonwealth). Gualano and Comcare [2006] AATA 154 was cited in support.
B.The Applicant contended that any prejudice caused to the Respondent was explained away by Associate Professor McPhee’s 7 April 2006 report.
C.The Applicant submitted that the medical history of the Applicant went more to the merits of the application than to the threshold question concerning the timeliness of the application (citing Gualano and Comcare [2006] AATA 154 at [19]).
D.The Applicant submitted that the excuse for the late claim was justified by ignorance within Telstra Corporation Ltd v Roycroft (1997) 77 FCR 358 at 367.
E.The Applicant submitted that the evidence before the Tribunal indicated a clear connection between the low back pain of the Applicant and his military service.
F.The Applicant submitted that the Respondent was estopped from denying the claim on the basis of representations made to it concerning the progress of the claim for compensation.
Respondent’s Submissions
25.The Respondent made the following contentions in Counsel’s closing address:
A. The Tribunal should discount any claim to estoppel because the Tribunal was serving as an adjudicator hearing the matter de novo.
B. The Tribunal should find that the Respondent was prejudiced by the late claims within the meaning of section 54(6) of the Compensation (Commonwealth Government Employees) Act 1971.
C. The Respondent argued that it had an inability to properly investigate the circumstances of the claims.
D. The Applicant had been exposed as untruthful during cross-examination and that he had lied out of self-interest. The Respondent said that the Applicant was an unreliable historian, and that his credit was diminished and that the case for prejudice was compelling.
E. That the reviewable decision should be affirmed.
The Legislation
26.The relevant provisions of the Act are as follows
“4 Interpretation
(1) In this Act, unless the contrary intention appears:
…
"impairment" means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
"injury" means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
…
…
(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
…"
‘permanent’ means likely to continue indefinitely.
14 Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
19 Compensation for injuries resulting in incapacity
(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
…
27. The Tribunal also had regard to section 54 of the Compensation (Commonwealth Government Employees) Act 1971, which reads:
54. (1) Compensation in relation to an employee is not payable under this Act to a person unless a claim in writing for the compensation was served, as prescribed, on the Commissioner by or on behalf of the person within the prescribed period.
(2) If the claimant is the employee, the prescribed period for the purposes of the last preceding sub-section is-
(a) in the case of a claim in relation to an injury to the claimant-
(i) the period of six months commencing on the day of the injury; or
(ii)if the claimant was not, immediately after the injury, aware that he had sustained an injury-the period of six months commencing on the day on which he became so aware;
(b) in the case of a claim in relation to a disease contracted, or an aggravation, acceleration or recurrence of a disease suffered, by the claimant-the period of six months commencing on the day on which the claimant became aware of the contraction of the disease, of the commencement of the aggravation or acceleration of the disease or of the recurrence of the disease; or
(c) in the case of a claim in relation to loss of, or damage to, an artificial limb or other artificial substitute, or a medical, surgical or other similar aid or appliance, used by the claimant, being a loss or damage that arose in circumstances referred to in section 28-
(i)the period of six months commencing on the day of the occurrence of the accident that resulted in the loss or damage; or
(ii) if the claimant was not, immediately after the accident, aware that the accident had resulted in the loss or damage-the period of six months commencing on the day on which he became so aware.
(3) If the employee has died and the claimant is his legal personal representative making a claim in pursuance of sub-section (1) of section 55, the prescribed period for the purposes of sub-section (1) is-
(a) in the case of a claim in relation to an injury to the employee-
(i) the period of six months commencing on the day of the injury; or
(ii) if the employee did not become aware before his death that he had sustained an injury-the period of six months commencing on the day on which the claimant became aware of the death of the employee;
(b) in the case of a claim in relation to a disease contracted, or an
aggravation, acceleration or recurrence of a disease suffered, by the
employee-(i)the period of six months commencing on the day on which the employee became aware of the contraction of the disease, of the commencement of the aggravation or acceleration of the disease or of the recurrence of the disease; or
(ii)if the employee did not become aware before his death that he had contracted a disease or suffered an aggravation, acceleration or recurrence of a disease-the period of six months commencing on the day on which the claimant became aware of the death of the employee; or
(c) in the case of a claim in relation to loss of, or damage to, an artificial limb or other artificial substitute, or a medical, surgical or other similar aid or appliance, used by the employee, being a loss or damage that arose in circumstances referred to in section 28-
(i)the period of six months commencing on the day of the occurrence of the accident that resulted in the loss or damage; or
(ii)if the employee did not become aware before his death that the accident had resulted in the loss or damage-the period of six months commencing on the day on which the claimant became aware of the death of the employee.
(4) If the employee has died and the claimant is a dependant of the deceased employee claiming compensation in respect of his death, the prescribed period for the purposes of sub-section (1) is the period of six months commencing on the day on which the claimant became aware of the death of the employee.
(5) If the claimant is a person to whom the compensation is payable by virtue of paragraph (b) or paragraph (c) of sub-section (5), or sub-section (9), of section 37 or by virtue of section 44, the prescribed period for the purposes of sub-section (1) of this section is the period of six months commencing on the day on which the liability to pay the cost to which the claim relates arose, or on which the expenditure to which the claim relates was incurred, as the case may be.
(6) Where-
(a)a claim purporting to be a claim referred to in sub-section (1) has been served on the Commissioner;
(b)the claim, as regards the time or manner of service, failed to comply with the requirements of that sub-section; and
(c)the Commonwealth would not, by reason of the failure, be prejudiced if the claim were treated as a sufficient claim, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause,
the claim shall be deemed to have been served in accordance with that
sub-section.”
Tribunal’s Reasons
28. These appeals involve the basic issue of whether the Applicant has an employment-related injury which is compensable within the scheme of section 14 of the Act. As a threshold issue, the Respondent put into sharp relief the late lodgement of the claim and invoked the protection of section 54 of the Compensation (Commonwealth Government Employees) Act 1971 (for brevity, the "section 54 issue").
29. It is fair to say that the way the Respondent argued its case put more emphasis on the threshold jurisdictional issue involving the section 54 issue than on the substantive medical merits of the case. The Tribunal noted that the Respondent did not really contest the medical evidence adduced by the Applicant. The Tribunal noted in particular that the only medical evidence adduced by the Respondent provided some evidence establishing the nexus between the military service of the Applicant and his injury. The particular medical report writer (Associate Professor Bruce McPhee) was not called as a witness by the Respondent, and so was not exposed to cross-examination. The Tribunal could therefore safely infer that the issue of whether there was the requisite nexus between employment and injury was resolved in favour of the Applicant. Independently of this, the Tribunal was satisfied in any event that the state of the uncontradicted medical evidence before the Tribunal enabled it to conclude that the back condition of the Applicant was related to his military service. But more about that later.
30. In terms of the forensic machinations of this case, the principal enquiry was the section 54 issue. In schematic outline, section 54 required a claimant for compensation to lodge a claim within six months from the date of injury or when the injured person first became aware of the injury (whichever first occurs). It was common ground between the parties that the Applicant was late in lodging his claims for compensation. This is sufficient to trigger section 54(6)(a). It was not disputed that the claims of the Applicant were "purported claims" within the meaning of this provision.
31. The next enquiry concerns the operation of section 54(6)(b), which is concerned with non-compliance with section 54(1). Again, it was common ground between the parties that the late lodgement by the Applicant of his two claims amounted to a failure to comply with lodgement within the prescribed time (six months) demarcated by section 54(1) and 2(a).
32. The third enquiry concerns the operation of section 54(6)(c). This is where the parties were polarised. The Respondent argued that it was prejudiced by the insufficient (or late) claim, contending in particular that it had an inadequate opportunity to investigate the circumstances of the claim and also to discount any non-military service employment-related causes of the back condition of the Applicant. In contrast, the Applicant argued that the medical evidence before the Tribunal (in particular the military medical records which were in the possession of the Respondent) negated the claim of prejudice. The Applicant argued that it was because of ignorance that he did not make a claim within the six-month period of the occurrence of the injury in the late 70s.
33. The elements of section 54(6)(c) are as follows. This provision is a deeming provision, operating to qualify a non-compliant claim as qualifying for the purposes of section 54(1).
34. The reasoning of this Tribunal in Ernest Boothman and Military Rehabilitation and Compensation Commission [2004] AATA 1002 at [61] summarises succinctly the operation of section 54 of the Compensation (Commonwealth Government Employees) Act 1971:
"[C]ompensation will not be payable to [the Applicant] under the 1971 Act unless the claim that was eventually made in [2005] can be deemed to have been made in accordance with s 54(1) because of the existence of one of the features identified in s 54(6). Two of those features, namely, failure resulting from death or absence from Australia, are clearly not applicable in the present case. That leaves for consideration whether the Commonwealth would, by reason of the failure, be prejudiced if the claim were treated as a sufficient claim or whether the failure resulted from ignorance, from a mistake or from any other reasonable cause.”
35. Prejudice to the position of the Respondent is the first filter against which the exculpatory provisions in section 54(6)(c) must be tested. The authorities on the meaning of "prejudice" in section 54(6)(c) (and on its successor provision under the Act, namely section 53) are reviewed in JO Ballard & P Sutherland (eds), Annotated Safety, Rehabilitation and Compensation Act 1988 (7th Ed, The Federation Press/Softlaw Community Projects, 2005), para [53.05].
36. It is not necessary to review the jurisprudence in any great detail. Suffice to say, the Respondent invoked Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534 at 535 to the following effect:
"Although the Act is framed in terms of imposing liability on the Commonwealth and its instrumentalities rather than in terms of its giving to an employee the benefit of compensation, the giving of that benefit may properly be seen as the obverse of the imposition of the liability on the Commonwealth. Consequently the Act should, in our view, be regarded as beneficial legislation. Section 53 is clearly intended to protect the Commonwealth and its instrumentalities from being placed in a situation where they are unable to disprove an employee’s assertion of an injury alleged to have occurred on some specific occasion in the course of the employee’s work or of a disease contracted because of some brief and transient situation. Some such provision is clearly needed to prevent abuse of the Act. However, where an appropriate officer of the Commonwealth or the relevant instrumentality is made aware at an appropriate time of the alleged injury or disease and the circumstances in which it was suffered or contracted, the Commissioner and the Tribunal should, we believe, be slow to hold that a claim for compensation for the incapacity resulting from that injury or disease must fail because s 53 has not been complied with to the letter. That is particularly so where, as in the present case, the employee has told the compensation clerk that he or she wishes to claim compensation and has relied on the compensation clerk telling him or her what needs to be done."
37. The policy behind notice and claims notification provisions such as section 54 of the 1971 Act and 53 of the Act is quite clear: these provisions are designed to put the Respondent (as an emanation of the Commonwealth) on notice that a potential claimant has sustained an alleged work-related injury. Once such notice is received, the Respondent is then able to investigate the circumstances of the injury in order to determine whether, ultimately, liability should be accepted or declined. The possibility of notice of injury facilitating access by an injured Commonwealth employee to rehabilitation should not be overlooked either.
38. The Tribunal had regard to the statement of Anthony Paul Reis dated 5 June 2006 (exhibit 7) which deposed to various grounds of prejudice that the Respondent would suffer were the claim to be treated as lodged in a timely fashion, including:
- Delay (25 years);
- Loss of the opportunity to have the Applicant medically examined during or after his military service;
- Absence of any probable recollection of any of the treating doctors of the circumstances of the Applicant's injury;
- The loss of the opportunity to locate any witnesses;
- The loss of the opportunity to properly investigate the post-discharge employment, personal life and medical treatment of the Applicant to determine whether that employment was a contributory factor to the medical condition suffered by the Applicant.
39. In this case, the extensive volume of medical evidence from the military service of the Applicant points unequivocally to a work-related injury. There is nothing in this body of evidence which qualifies it as being brief or transitory (compare Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534 at 535) such as to inhibit or prevent the Respondent from investigating the circumstances of the claim. In the opinion of the Tribunal, the notifications recorded by RAAF medical officers are sufficient to have put the Respondent (or, more accurately, the Commonwealth) on notice that the Applicant had suffered an alleged work-related injury.
40. The Tribunal considered carefully the material before it on the prejudice issue. On balance, because of the extensive medical records of the Respondent, which point unequivocally to the occurrence of a work-related injury, the Tribunal is not satisfied on the balance of probabilities that the Respondent has suffered any prejudice from the late claim made by the Applicant. There is significant corroborative evidence in the military medical records collected by and maintained by the Respondent which supports the occurrence of a work-related injury on the part of the Applicant. Without that corroborative evidence, however, the Tribunal would be concerned about the effect of delay on the position of the Respondent and in other circumstances, this would tilt the balance in favour of the Respondent.
41. In case the Tribunal is wrong concerning prejudice to the Respondent, the Tribunal went on to consider the other exculpatory provisions of section 54 (which on the facts are ignorance or mistake or reasonable cause). The Tribunal considered what North J said in Telstra Corporation Ltd v Roycroft(1977) 77 FCR 358 on the meaning of ignorance and mistake. Having analysed several authorities, his Honour said at 367:
“As these authorities show, there is a thin line between "mistake" and "ignorance". If a person acts on the basis of knowledge of the Act and that knowledge is wrong, or the facts upon which the person relies are wrong, then the person has made a mistake. If a person acts without any knowledge about the Act or an aspect of it, and consequently does not know whether or not it applies, then the person is ignorant. The distinction between ignorance and mistake requires very careful attention to the evidence..."
42. In evidence to the Tribunal the Applicant said that he was young and that he just had to push through the pain when he was working on the Canberra bombers (which was the first occasion on which he suffered back pain that he reported to the RAAF medical authorities). The Applicant contended that this amounted to ignorance. The Tribunal accepts this submission because the Applicant, on the evidence before it, did not have regard to the possibility of compensation in respect of his work-related injury. This conclusion makes it unnecessary for the Tribunal to consider the other elements of mistake or other reasonable cause. The Tribunal doubts whether the Applicant would be able to take advantage of the "reasonable cause" exception or excuse because of the way that this exception has been interpreted in Banks v Comcare Australia, Federal Court, 22 May 1996, 382/96 per Kiefel J) ("the expression 'reasonable cause' has been held to refer to some act or omission which operated to prevent the giving of notice and one which, in the circumstances prevailing, is consistent with a reasonable standard of conduct, of such a nature that it might be expected to delay the giving of the necessary notice or claim" at 11) rendered it unlikely that the Applicant could meet this standard.
43. The second major issue in these appeals is whether the injury sustained by the Applicant is work-related. Enough has been said already in these Reasons to indicate that the Tribunal is satisfied, on the basis of the uncontradicted medical evidence before it (including the expert evidence adduced by the Respondent), that the back condition which is the subject of the claims for compensation made by the Applicant arose out of his military employment.
Tribunal’s Conclusion
44. Accordingly, the Tribunal is satisfied that the failure on the part of the Applicant to either give notice of the circumstances giving rise to the claim as and when they took place or to lodge a claim in time, has not caused prejudice to the Respondent, and that, alternatively, this has arisen from ignorance on the part of the Applicant.
Decision
45. Based upon the material before it, and for these Reasons, the Tribunal decides that the decision under review is set aside. The determinations dated 19 January 2004 and 27 May 2004 are varied to provide that the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act") applies in relation to the Applicant's injury. The Applicant's claim should be determined pursuant to the relevant provisions of the Compensation (Commonwealth Government Employees) Act 1971 and the Safety, Rehabilitation and Compensation Act 1988.
Costs
46. Neither party addressed the Tribunal concerning costs, and nor were any supplementary submissions concerning costs made to the Tribunal through the Registry after the hearing. Costs are governed by section 67 of the Safety, Rehabilitation and Compensation Act 1988.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision of Member S C Fisher
Signed:............................................................................ Legal Research Officer
Dates of Hearing 7 June 2006
Date of Decision 23 March 2007
Counsel for the Applicant Mr N Jarro
Solicitor for the Applicant Gilshenan & Luton Lawyers
Counsel for the Respondent Mr CJ ClarkSolicitor for the Respondent Australia Government Solicitor
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