Rose and Military Rehabilitation and Compensation Commission (Compensation)
[2015] AATA 583
•11 August 2015
Rose and Military Rehabilitation and Compensation Commission (Compensation) [2015] AATA 583 (11 August 2015)
Division
GENERAL DIVISION
File Number(s)
2013/6169 & 2014/1874
Re
Dennis Rose
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal Senior Member CR Walsh
Date 11 August 2015 Place Perth The decisions under review are affirmed.
....(Sgd) CR Walsh....................................................................
Senior Member CR Walsh
CATCHWORDS
COMPENSATION – hearing loss and tinnitus conditions – whether “injury” or “disease” – date of onset – notice provisions – failure to notify not occasioned by mistake, absence from Australia or other reasonable cause – significant prejudice to Respondent – accepted “aggravation of Scheuermann’s disease” (back) condition – date impairment became “permanent” – no new impairment – decisions under review affirmed
LEGISLATION
Compensation (Commonwealth Government Employees) Act 1971
Commonwealth Employees’ Compensation Act 1930 – s 9 – s 10 – s 12 – s 16 – s 16(1) – s 16(4) – The First Schedule – The Third Schedule
Commonwealth Workmen’s Compensation Act 1912Safety, Rehabilitation and Compensation Act 1988 – s 4(1) – s 5A(1) – s 5B(1) – s 14 – s 17 – s 24 – s 24(2) – s 25 – s 124 – s 124(2)(b) – s 124(3) – s 124(4)
CASES
Banks v Comcare [1996] FCA 382
Comcare v Etheridge (2006) 149 FCR 522
Comcare v Maida [2002] FCA 1284
Department of Defence v West (1988) 145 ALR 651
Deveson and Comcare [1999] AATA 80; 53 ALD 794
Health Insurance Commission v Van Reesch (1996) 45 ALD 302; 24 ALR 81
Muras and Department of Defence (1988) 52 ALD 579
Re Nolan and Military and Compensation Commission [2012] AATA 454
Sandercock v Military and Compensation Commission [2013] AATA 517
Zickar v MGH Plastic Industries Pty Limited (1996) 187 CLR 310; 71 ALJR 32; 140 ALR 156SECONDARY MATERIALS
FOR DECISION
Senior Member CR Walsh
11 August 2015
INTRODUCTION
Mr Rose is currently 65 years old. On 27 January 1971, then aged 20, Mr Rose enlisted in the Australian Army (Army). On 11 June 1971, less than six months later, Mr Rose was medically discharged from the Army (aged 21). After leaving the Army, Mr Rose worked about 16 years as a drafting and technical officer and subsequently as a school teacher.
During his time in the Army, Mr Rose underwent basic recruit training at RTB Puckapunyal, Victoria (from 27 January 1971 until about 8 April 1971) followed by training as an “Engineer Corps Officer” at Liverpool SME, New South Wales (from about 8 April 1971 until 11 June 1971), during which time he was awarded the rank of “Sapper” (i.e. a soldier who performs a variety of military engineering duties such as bridge-building, laying or clearing minefields, demolitions, field defences and general construction, as well as road and airfield construction and repair). [1]
[1] See: >
In February 1971, during his recruit training at RTB Puckapunyal, Victoria, Mr Rose claims to have fallen quite a distance from a flying fox training apparatus (without a safety harness) and to have landed on and injured his back. In April 1971, during his training as an “Engineer Corps Officer” at Liverpool SME, New South Wales, Mr Rose claims to have taken part in a staggered demolition of a bridge structure with explosives and without ear protection which caused ringing in his ears and some deafness. Mr Rose also claims to have been exposed to “SLR rifle” fire and tank training, without ear protection, during his employment in the Army.
Mr Rose seeks a review of the following two decisions of delegates of the Military Rehabilitation and Compensation Commission (MRCC):
(i)a decision, dated 26 July 2012, which determined that Mr Rose was not entitled to compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) (Compensation for injuries) in respect of a “hearing loss” and “tinnitus” conditions (file no. 2013/6169): refer to paragraph 37 below; and
(ii)a decision, dated 8 April 2014, which determined that Mr Rose was not entitled to lump sum permanent impairment compensation under s 24 of the SRC Act (Compensation for injuries resulting in permanent impairment) by reason of the transitional provisions in s 124 of the SRC Act (Application of Act to pre-existing injuries) in respect of an accepted “aggravation of Scheuermann’s disease” condition (file no. 2014/1874).
FACTS & EVIDENCE[2]
[2] In chronological order.
A Department of Labour and National Service medical report, dated 15 September 1970, records that Mr Rose had a previous history of temporary hearing loss with ear abscesses and middle ear infections.
Prior to being discharged from the Army, Mr Rose was examined by two Members of the Australian Army Medical Board, Mr LF Demetrius and Mr CH Leedman. In their “Final Medical Board Report”, dated 14 May 1971, Mr Demetrius and Mr Leedman summarised Mr Rose’s medical history as “Scheuermann’s Disease Dorsal Spine confirmed by x-rays and Orthopaedist May 71. Back injury (fell off a truck) Aug 70)”, diagnosed Mr Rose with “Scheuermann’s Disease Dorsal Spine”, reported that his percentage degree of incapacity is 30%, his “Composite assessment of incapacity per cent for general labour market” is 30% and to the question “Were any disabilities present before service?” answered “Yes” (Final Medical Board Report).
In the Final Medical Board Report Mr Demetrius and Mr Leedman also stated that Mr Rose’s “Scheuermann’s Disease Dorsal Spine” was not due to an occurrence during, attributable to or aggravated by conditions of service.
The Final Medical Board Report also contains the following “Audiometric examination” results:
Cycles 500 1,000 2,000 3,000 4,000 Decibel loss Rt. Ear 10 10 10 5 20 Decibel loss Lt. Ear 10 10 10 15 15 In a “Discharge History Questionnaire”, dated 14 May 1971, Dr Demetrius stated that Mr Rose had deafness, noting that Mr Rose had “Difficulty in hearing with Rt Ear + gets painful. Told by Dr it is an abscess due to dandruff” and a back injury, noting that Mr Rose “fell off a truck + hit his back” (Discharge History Questionnaire).
In a handwritten medical report, dated 22 May 1971, Dr AE Daley and Dr RT Mikoszu stated the following in relation to Mr Rose’s medical condition:
This gentleman suffers from a chronic back condition which from time to time, during exacerbations, causes morbidity to an extent which would prevent him from carrying out his work effectively.
An audiogram recorded during the time Mr Rose spent in Puckapunyal in 1971 records Mr Rose’s hearing loss as follows:
500 1,000 2,000 3,000 4,000 L. [i.e. ear] 20 20 20 20 25 R. [i.e. ear] 25 25 15 20 25 In an undated determination, stamped 8 February 1972, a delegate of the Commissioner for Employees’ Compensation accepted that Mr Rose suffered “aggravation of pre-existing Scheuermann’s disease….due to the nature of his employment” with the Army for the purposes of s 10 of the Commonwealth Employees’ Compensation Act 1930 (1930 Act) and that the Commonwealth was therefore liable to pay Mr Rose compensation “in relation to the disease in accordance with the provisions of the Compensation (Commonwealth Employees) Act 1971 (1971 Act)” (8 February 1972 Determination).
Various determinations of the Commissioner for Employees’ Compensation record that that liability was accepted by the Commonwealth for Mr Rose’s back condition for various periods following the 8 February 1972 Determination.
A “Workers’ Compensation FIRST Medical Certificate” by Dr Shahrooz Roohi, dated 21 July 2011, reported that Mr Rose described “Noise induced hearing loss related to service in military” and “mild-moderate deafness” which would “need to be assessed by audiologist”.
An audiogram, dated 29 August 2011, states that Mr Rose “suffers from tinnitus bilaterally” and records his “hearing level in decibels” as being in the range of 45 to 50 decibels at 4,000 hertz.
A “Workers’ Compensation PROGRESS Medical Certificate” by Dr Roohi, dated 6 September 2011, stated “Higher frequency loss confirmed on eudiometry Likely combination of noise induced hearing loss and age Hearing aids may be required to improve hearing”.
In a letter to the Department of Veterans’ Affairs (DVA), dated 12 October 2011, Mr Rose stated:
……..As you are aware in January 1971 I was in National Service. I suffered a back injury and was discharged as medically unfit around June of the same year.
The injury arose from a fall from a flying fox during basic training. Straight after the incident I complained to the Medical of both upper back and lumbar soreness. I also complained of numbness in my left knee. I was sent back to work. Each time I complained the Doctor continued to send me back to work with painkillers. I have ongoing pain, impairment and discomfort. I have suffered a loss of mobility, loss of lifestyle choices and loss of career/work choices. My hearing is also impaired from weapons fire and explosives fired during training.
I was classified class B invalidity on 16 Sept 1971 (between 20 and 60% incapacitated) by the Defence Forces Retirement Benefit Board (DFRB). Compensation was awarded for aggravation of Scheuermann’s Disease on 8 Feb 1972 by the Commonwealth (Offie of the Commissioner for Employee’s Compensation).
I realise my compensation award goes back many years to 1971 and the difficulty this creates with legislation….
My two issues are to [do] (sic.) with hearing loss and whether I could [be] (sic.) entitled to a DVA pension for my back condition.
Hearing Loss
…………
I first noticed some hearing loss and tinnitus in the time just after I was discharged from Military Service. I feel it has got worse in the ten years. Consequently, I enclose a claim under the SRC Act.
Back Injury
I have discussed the situation with an advocate who tells me that since I am finding it more difficult to cope with full-time work recently that I may be entitled to a compensation payment under the SRC Act, which he tells me is improved upon my original compensation award…..
I would appreciate it if you could advise me as to how I stand in this regard, without this being a formal request.
On 13 October 2011, Mr Rose completed a DVA “Claim for Rehabilitation and Compensation Workers’ Compensation” claim form for a “hearing impairment” which stated that he believed “rifle fire and explosives (in [his] job as a Sapper) caused noise induced hearing loss and tinnitus (Hearing Loss Claim). In the Hearing Loss Claim, Mr Rose also stated he “noticed some hearing loss around the time of [his] discharge in 1971 and have noticed it has deteriorated further over the last ten years” and that he first received treatment for his hearing impairment on 21 July 2011.
On 3 January 2012, the DVA wrote to Mr Rose requesting that he complete, among other things, a “Hearing Loss Supporting Statement”. In his response, dated 4 January 2012, Mr Rose stated:
During military service I was in Engineering when the job required use of explosives for demolition. During training I was required to fire rifles, SMG’s and grenades.
Further, to the question “were ear protectors provided (Yes or No)?” Mr Rose answered “No- only on occasion”.
A handwritten note from Dr Johan Yin, Defence Medical Officer, dated 16 January 2012, stated an audiogram in May 1971, at the time of Mr Rose’s discharge, was “normal” and that:
Any hearing loss suffered by the member would have occurred well after his discharge from the army.
By determination dated 31 January 2012, the Hearing Loss Claim was disallowed on the basis that it was “not possible to establish whether [Mr Rose] had any degree of hearing loss during and as a result of [his military] service” (Hearing Loss Determination).
On 3 February 2012, Mr Rose requested a reconsideration of the Hearing Loss Determination noting:
I first noticed some hearing loss and tinnitus in the time just after I was discharged from Military Service. You say that 41 years is a long time to wait to make a claim. Quite honestly I did not know I could claim until recently. I’ve always known my hearing was impaired due to military service…
In a letter to the DVA, dated 12 April 2012, Mr Rose stated it was during basic training that he fell from a flying fox apparatus and fell “quite a distance” landing on his back and that he would like to proceed with a claim for a lump sum compensation payment for permanent impairment in respect of that injury. In his letter to the DVA, dated 12 April 2012, Mr Rose also stated that on 15 November 1983 a hearing was set down in this Tribunal for the purpose of settling his lump sum permanent impairment claim but that he withdrew his claim on the morning of the hearing “under duress” from the Defence Forces union.
On 4 July 2012, Mr Rose was assessed by Professor TC McManus, Consultant, Ear, Nose and Throat Surgeon.
In a letter to the DVA, dated 6 July 2012 (following Mr Rose’s assessment by Professor McManus), Mr Rose stated:
The Professor’s questions did lead to some recall after the appointment. He wanted to know how long I had the ringing in my ears for and I said for 40 years or so and I coped by ignoring it. However I do recall now when it first started. When I was at Liverpool SME we were trained with explosives. After setting some off (it would have been April 1971) I immediately recall the ringing. I thought it was normal at the time.
Mr Rose’s “tinnitus” condition was not included in the Hearing Loss Claim: refer to paragraph 18 above.
In his medical report, dated 18 July 2012, Professor McManus stated that his diagnosis was that Mr Rose had “Presbycusis” which was age related which was not “caused” or “aggravated” by his Commonwealth employment and was “unrelated” to his Commonwealth employment. Professor McManus also reported that Mr Rose experienced “mild tinnitus which began when he was around age 22” and that:
Detailed audiometry has been carried out with results that are consistent with the ageing process and calculated at 13.7% bilateral percentage loss in accordance with NAL report 118.
……..
Mr Rose has an expected degree of hearing impairment consistent with age and no treatment is currently required.
Professor McManus’ report, dated 18 July 2012, also states that the “hearing/tinnitus condition” that Mr Rose suffered from was “Presbycusis” which was not caused by, aggravated by and was unrelated to his “Commonwealth employment”.
On 26 July 2012, a delegate of the MRCC affirmed the 31 January 2012 Determination (26 July 2012 Decision), stating:
In consideration of the specialist medical opinion of Professor McManus, I am satisfied that the hearing loss you suffer is due to age related Presbycusis and not related to your military employment.
The 26 July 2012 Decision did not consider Mr Rose’s “tinnitus” condition.
On 19 July 2012, Mr Rose was assessed by Dr Mary Wyatt, Consultant Occupational Physician. In a DVA “Permanent Impairment and Non-Economic Loss Questionnaire”, dated 19 July 2012, Dr Wyatt reported that the “Date of injury” was 1 August 1970 and that Mr Rose had a 5% “Whole Person Impairment” under Guide Table 9.6 of the Comcare Guide. Dr Wyatt also reported that “Percentage Loss of Efficient Use for Employment” as a “Draughtsman” was 5% and his “Percentage Loss of Efficient Use for General Purposes” was 5%. Dr Wyatt further reported that the “Date Loss became Permanent” was 1971 and the “Date Loss became Static” was 1972.
On 31 July 2012, Mr Rose was again assessed by Dr Wyatt. In her medical report, dated 31 July 2012, Dr Wyatt stated:
Back/Spine:
Inspection of the back revealed a mild kyphosis of the Thoracic spine. Mr Rose was able to demonstrate a reasonable range of movement of his thoracolumbar spine, although had stiffness of his thoracic region particularly noted on lateral flexion and rotation.
………
INVESTIGATIONS:
….the first x-rays from 1979 showed Scheuermann’s disease. The most recent x-rays from July 2011 show much the same findings, with old Schmorl’s nodes, which is a finding seen post-Scheuermann’s disease.
…………
SUMMARY AND ASSESSMENT:
…………
Mr Rose has a permanent impairment of the thoracic spine. He sustained a specific injury which has left him with long term mid back complaints. The back problem has been managed by avoiding aggravating factors and exercising.
…………
I consider that Mr Rose has a 15% permanent loss of effective use (LOEU) of the thoracic spine as a consequence of his service related injuries.
………….
Mr Roses’ impairment is considered permanent, i.e., it is not expected to improve. His condition is stable. [Emphasis added]
On 21 August 2012, Mr Rose completed a workers’ compensation claim for his “tinnitus” condition, stating that this condition arose during “Bridge demolition training at SME during sapper training period”. He also stated that no ear protection was provided and that he immediately noticed ringing in his ears which remained for the rest of his life.
By determination dated 31 August 2012, Mr Rose’s claim for a lump sum compensation payment for permanent impairment (i.e. in respect of his back condition) was disallowed because his “impairment became permanent on 01/08 1970” and his “claim must therefore be assessed in accordance with the provisions of the [1930 Act]” and the 1930 Act “did not provide for the payment of lump sum compensation for Aggravation of Scheuermann’s Disease” with the consequence that “no payment can be made under the transition provisions of Section 124 of the 1988 Act [i.e. the SRC Act] for [his] accepted condition” (31 August 2012 Determination).
By determination dated 12 November 2012, a delegate of the MRCC disallowed Mr Rose’s workers’ compensation claim for his “tinnitus” condition on the basis that his claim was not lodged within six months from when the date of the injury occurred, as required by s 16 of the 1930 Act, and that the Commonwealth’s position has been prejudiced by the late lodgement of this claim (12 November 2012 Determination). Mr Rose did not request that the 12 November 2012 Determination be reconsidered.
On 23 December 2013, Mr Rose applied to the Tribunal for a review of the 26 July 2012 Decision (i.e. file no. 2013/6279) which, as set out above (in paragraphs 30 and 31), considered Mr Rose’s “hearing impairment” condition but not his “tinnitus” condition. At a directions hearing before the Tribunal on 16 January 2014, it was agreed that the 26 July 2012 Decision should be treated as relating to both Mr Rose’s “hearing loss” condition and his “tinnitus” condition and be reviewed by the Tribunal accordingly (Hearing Loss & Tinnitus Condition Decision). As a result, file no. 2013/6279 was allocated a new application no., namely file no. 2013/6169.
By letter dated 22 January 2014, Mr Rose requested a reconsideration of the 31 August 2012 Determination (relating to his back condition claim), noting that he was not in national service on 1 August 1980 (i.e. as stated in the 31 August 2012 Determination).
On 9 March 2014, Mr Rose wrote to the DVA stating:
…….I had a fall from a truck in August 1970, prior to service. Whether this caused any damage to my back or hearing was unresolved but was examined by Dr Daly in 1970 (one of my treating (practitioners). I went into National Service before Dr Daley could organise any resolution of my back or hearing conditions. The military were aware of these unresolved issues that constituted a pre-existing condition (see Page B3). The back and hearing conditions perhaps are connected and were caused, accelerated, aggravated or led to recurrence by service. Alternatively perhaps the flying fox incident in March 1971 and the explosion in April 1971 caused the conditions. It does not matter – I am entitled to compensation….
Because my back is a recurring condition (Dr Daley Page B4) it was still causing problems after August 1971…..
On 8 April 2014, a delegate of the MRCC affirmed the 31 August 2012 Determination Decision broadly on the basis that Mr Rose’s back condition became permanent in 1971, when the injury occurred, and, having regard to s 124 (4) of the SRC Act, no compensation was payable in respect of that condition (Back Condition Decision).
On 13 April 2014, Mr Rose applied to the Tribunal for a review of the Back Condition Decision (file no. 2014/1874).
In a supplementary report, dated 25 June 2014, Dr Wyatt stated:
On the available information Mr Rose’s back problems became permanent in August 1970. I appreciate Mr Rose’s recollection is that his problems began in 1971 following a significant fall, however this is not borne out by the available clinical records. The records indicate there were problems prior to joining the military, and there is no clinical record of a major injury, such as a long distance fall, occurring during the military service.
………..
Mr Rose’s exacerbations in his back problem do not represent an underlying change to his pathophysiological condition. As outlined in the medical report, there has not been a material change in Mr Rose’s x-ray results over the years. The x-rays from 3 May 1971 indicated a Schmoil’s node at T11/12 with some wedging at that level. These were consistent with old Scheuermann’s disease. Mr Rose’s x-rays from July 2011 showed similar findings, with old Schmorl’s nodes. There has not been a material change in his x-rays over the years, consistent with the same pathophysiology.
In a supplementary report, dated 8 July 2014, Professor McManus stated:
In my opinion [Mr Rose’s] tinnitus is not related to his military service. Mr Rose’s hearing on enlistment in the military services was normal and again on discharge from his military services in May 1971 his hearing was still within normal limits. Any complaints of tinnitus without evidence of noise induced hearing loss would not be a result of military service. Mr Rose’s file at the time of my assessment did not contain any reports of his complaining of tinnitus during or on discharge from his military service.
………
My initial report, page 3, under the heading “Tinnitus” should read “Mr Rose complains of mild tinnitus which he advised began when he was about age 22.”
……….
In summary, my original report remains unchanged and I confirm my opinion that [Mr Rose’s] hearing impairment and tinnitus is unrelated to his military service, is not noise induced hearing loss resulting from his military service and is consistent with presbycusis, age related hearing impairment.
In a medical report, dated 20 May 2015, Dr Sarah Tottle stated the following in relation to Mr Rose’s accepted “aggravation of Scheuermann’s condition”:
Mr Rose suffers from a chronic back injury which from time to time, during exacerbations, causes morbidity to an extent which prevents him from carrying out his work…..Mr Rose is always tender over his lower thoracic spine extending from around T7 to T12 and also the paraspinal region. X-ray reports from 1972, 1979 and 2011 show Scheuermann’s Disease and Schmorl’s nodes and there is no change over this period.. He has developed his back problems in February 1971 following a significant fall in the course of military duties and was kept on full duties in severe pain until June 1971….
………His condition is permanent, stable and not expected to improve. I have seen Dr Wyatt’s report from 19 July 2012 and concur with her diagnosis in respect to the injury.
ISSUES
In relation to the Hearing Loss & Tinnitus Condition Decision (file no. 2013/6169), the relevant issues for consideration by the Tribunal are whether:
·Mr Rose suffers from hearing loss and, if so, what is the date of onset;
·Mr Rose’s hearing loss and tinnitus conditions are characterised as an “injury” or a “disease”;
·liability for compensation is precluded by operation of s16 of the 1930 Act; and
·Mr Rose’s hearing loss and tinnitus conditions were contributed to by his military service to the requisite degree or arose out of the course of employment or were due to the nature of Mr Rose’s military employment.
In relation to the Back Condition Decision (file no. 2014/1874), the relevant issues for consideration by the Tribunal are:
·whether Mr Rose has suffered an impairment and, if so;
·whether Mr Rose’s impairment occurred before 1 December 1988 (the commencement date of the SRC Act) such that the 1971 Act provisions are applicable; or
·whether Mr Rose’s impairment occurred before 1 September 1971 (the commencement date of the 1971 Act) such that the 1930 Act provisions are applicable; or
·whether if the impairment occurred before 1 December 1988 (the commencement date of the SRC Act), has there been a qualitative and quantitative change in the impairment (i.e. a new impairment) post 1 December 1988, giving rise to a ‘new’ impairment and, if so;
·whether there is an entitlement to permanent impairment compensation by virtue of the provisions in ss 124(3) and (4) of the SRC Act.
ANALYSIS
Hearing Loss & Tinnitus Condition Decision (2013/6169)
Section 124 of the SRC Act (Application of Act to pre-existing injuries) entitles a person to compensation under s 24 of the SRC Act (Compensation for injuries resulting in permanent impairment) or s 25 of the SRC Act (Interim payment of compensation) for an injury suffered before the “commencing day” of the SRC Act (i.e. 1 December 1988) if compensation was, or would have been, payable under the compensation Act in force at the date of the injury (i.e. the Commonwealth Workmen’s Compensation Act 1912 (1912 Act), the 1930 Act or the 1971 Act).
Of particular relevance to the Hearing Loss & Tinnitus Condition Decision, is s 124(2)(b) of the SRC Act which states:
(2)A person is not entitled to compensation under this Act in respect of an injury, loss or damage, suffered before the commencing day [i.e. 1 December 1988] if compensation was not payable in respect of that injury loss or damage:
…….
(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; or
Injury or disease
The term “disease” is defined in s 5B of the SRC Act as follows:
5B(1) In this Act:
disease means
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
The term “injury” is defined in s 5A of the SRC Act as follows:
5A(1)In this Act:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is 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, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
It is important to differentiate whether a person’s claim involves an “injury” or a “disease” for the purposes of the SRC Act.[3] Ultimately, the question of whether a particular condition is an “injury” or a “disease” for the purposes of the SRC Act is dependent upon the ordinary meaning of those terms, having regard to the specific facts of a case.[4]
[3] Health Insurance Commission v Van Reesch (1996) 45 ALD 302; 24 ALR 81 and Zickar v MGH Plastic Industries Pty Limited (1996) 187 CLR 310; 71 ALJR 32; 140 ALR 156.
[4] Comcare v Etheridge (2006) 149 FCR 522.
There is no consistent view in regards to whether “hearing loss” is an “injury” or a “disease” for the purposes of the SRC Act. [5]
[5] Re Nolan and Military Rehabilitation and Compensation Commission [2012] AATA 454 and Banks v Comcare [1996] FCA 382.
Based on the medical report of Dr McManus, dated 18 July 2012, Mr Rose’s “hearing loss” condition is a “disease”, rather than an “injury”, as he was diagnosed with “presbycusis”, which is a slow degenerative process associated with ageing: refer to paragraph 28 above.
“Tinnitus” can be regarded as an “injury” or a “disease” depending on whether it was provoked by a distinct acoustic trauma or a disease of the ear.[6]
[6] Sandercock v Military Rehabilitation and Compensation Commission [2013] AATA 517.
There is no evidence to support a finding that Mr Rose was suffering, or reported he was suffering, from “tinnitus” during service or upon discharge from service, caused by the use of explosives during a staggered bridge demolition in April 1971 (i.e. that the condition was caused by distinct acoustic trauma). The Final Medical Board Report (see paragraph 6 above) and the Discharge History Questionnaire (see paragraph 19 above) support this finding and a finding that Mr Rose’s “tinnitus” condition is a “disease”, rather than an “injury”, for the purposes of the SRC Act
Date of injury or disease
If the Tribunal accepts that Mr Rose had hearing loss and/or tinnitus condition, as claimed, with a date of injury in April 1971, the correct legislation to be applied, pursuant to the transitional provision in s124(2)(b) of the SRC Act, is the 1930 Act (which was assented to on 14 August 1930 and which ceased operation on 1 September 1971).
Whereas, the 1971 Act would apply if Mr Rose established that the date of injury of the claimed conditions was after 1 September 1971 (being the commencement date of the 1971 Act) but before 1 December 1988 (being the commencement date of the SRC Act). In order for the SRC Act to apply, Mr Rose would need to establish that the date of injury of the claimed conditions post-dated 1 December 1988 (being the commencement date of the SRC Act).
The medical evidence shows that Mr Rose’s hearing at discharge was the same as at enlistment. The hearing difficulty Mr Rose reported, prior to enlistment, was due to a middle ear infection and abscess in his left ear caused by dandruff. The hearing difficulty he reported prior to discharge was due to an abscess in his right ear. The medical examination record, dated 15 September 1970 (see paragraph 5 above), the Discharge History Questionnaire (see paragraph 9 above), the medical report of Dr Yin, dated 16 January 2012 (see paragraph 21 above), and the medical reports of Dr McManus dated 18 July 2012 and 8 July 2014, support these findings (see paragraphs 28, 29 and 43 above).
In his supplementary report, dated 8 July 2014, Professor McManus reported Mr Rose’s tinnitus was unrelated to his military service on the basis there was no evidence of noise induced hearing loss upon discharge and confirmed that his original report should read “Mr Rose complains of mild tinnitus which he advised began when he was about age 22”: see paragraph 43 above.
Mr Rose first sought treatment for his “hearing loss” and “tinnitus” conditions from Dr Roohi on 21 July 2011: see paragraph 14 above.
There is no medical evidence to support a conclusion Mr Rose was suffering from “hearing loss” and/or “tinnitus” prior to the audiogram undertaken on 29 August 2011: see paragraph 15 above. The medical certificate of Dr Roohi, dated 6 September 2011, supports this conclusion (see paragraph 16 above).
Threshold Issue- notice
Even if the Tribunal were to accept Mr Rose’s contention that he experienced “hearing loss” and “tinnitus” in April 1971 during his military service, and that is the date of injury (which, for the reasons provided above, it does not), liability is nevertheless precluded by s 16 of the 1930 Act.
Section 16(1) of the 1930 Act (Time for taking proceedings), relating to “injuries”, provides:
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
…………
Provided always that:
(i) the want of 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. [Emphasis added]
Section 16(4) of the 1930 Act which relates to a claimant providing notice of “diseases” (as opposed to “injuries”), which section is in substantially similar terms to s 16(1) of the 1930 Act (as set out immediately above).
Pursuant to s 16 of the 1930 Act, Mr Rose had an obligation to notify the MRCC when he became aware of his “hearing loss” and “tinnitus” conditions.[7] Mr Rose first notified the MRCC of his “hearing loss” and “tinnitus” conditions when he lodged the Hearing Loss Claim on 13 October 2011 (see paragraph 18 above), approximately 41 years after he had become aware of these conditions and, as such, Mr Rose has not complied with the s 16 notice requirements.
[7] Deveson and Comcare [1999] AATA 80; 53 ALD 794.
In a statement, titled “Issues to discuss”, received on 7 April 2014, Mr Rose stated:
I agree that the delay in giving notice of the injury and the delay in lodging the claim prejudiced both parties’ prospects of dealing reasonably with the hearing loss and Tinnitus claim. However, I did not become aware of the significance and permanence of my hearing loss until well after leaving military employment and that, combined with a belief that I could do nothing about bringing my claim once I had left military employment is my excuse in the circumstances. I only learn about being able to claim and the provision of lump sum payments in 2011 via my ex National Service friends who went to Vietnam and received these benefits around 2010.
Similarly, in his “Summary Statement for 8th June 2015 AAT Hearing”, received 22 May 2015, Mr Rose stated:
I had no idea I could claim once I had left military employment, being aware of the rule that a claim had to be made as soon as possible after injury and believing one still had to be in the employment of the organisation.[8]
[8] Mr Rose made similar verbal submissions at the hearing.
The Tribunal is not satisfied, based on the evidence, that Mr Rose’s failure to notify the MRCC of his “hearing loss” and “tinnitus” conditions was “occasioned by mistake, absence from Australia or other reasonable cause”. The Tribunal relies, in particular, on Mr Rose’s statement, filed on 2 March 2014, which provides:
Whether the hearing loss and tinnitus conditions were contributed to by his military service to the requisite degree OR arose out of or in the course of employment or were due to the nature of Mr Rose’s military employment.
The MRCC’s contention is that they have been significantly prejudiced in this case because the delay in Mr Rose lodging a claim for compensation in respect of his hearing loss and tinnitus conditions has resulted in the MRCC losing the opportunity to obtain timely specialist medical evidence. The MRCC also asserts that, the delay has resulted in losing the opportunity to determine the veracity of Mr Rose’s claims regarding his hearing loss and tinnitus conditions and the prejudice suffered by the MRCC is more than minimal and is “of such a nature as to hamper the Commonwealth unreasonably in preparing to meet Mr Rose’s claims”.[9] The Tribunal agrees with these contentions. Consequently, Mr Rose cannot rely on the proviso in s 16(1)(i) of the 1930 Act to cure to the lack of a notice of accident or s16(1)(ii) to cure the lack of a claim within the 6 months.
[9] Muras and Department of Defence (1998) 52 ALD 579.
Under the 1930 Act, the “injury” provisions (specifically s 9, s 12, The First Schedule and The Third Schedule of the 1930 Act) required that Mr Rose suffered “personal injury by accident arising out of or in the course of” his Commonwealth employment. The ‘”disease” provisions in the 1930 Act (specifically s 10 and The Second Schedule to the 1930 Act) required that the condition be due to the nature of Mr Rose’s Commonwealth employment.
The medical evidence establishes that Mr Rose’s “hearing loss” and “tinnitus’” conditions were not contributed to, by a significant degree, by Mr Rose’s military service (if the date of injury is 2011 and the “significant contribution” test applies: see definition of “disease” in paragraph 49 above). The medical evidence shows that Mr Rose has presbycusis, due to ageing, which is not related to his military service: see the discussion of the medical reports of Professor McManus, dated 18 July 2012 and 8 July 2014: see paragraphs 28, 29 and 43 above.
There is no medical evidence to support a finding that Mr Rose‘s hearing loss and/or tinnitus arose out of or during the course of his military service or was due to the nature of his employment: refer to the discussion on the medical reports of Professor McManus, dated 18 July 2012 and 8 July 2014: see paragraphs 28, 29 and 43 above.
Accordingly, Mr Rose is not entitled to compensation for the claimed “hearing loss” and “tinnitus” conditions.
Back Condition Decision (2014/1874)
Date of permanence of impairment
As stated above (in paragraph 47) s 124 of the SRC Act (Application of Act to pre-existing injuries) entitles a person to compensation under s 24 of the SRC Act (Compensation for injuries resulting in permanent impairment) or s25 of the SRC Act (Interim payment of compensation) for an injury suffered before the “commencing day” of the SRC Act (i.e. 1 December 1988) if compensation was, or would have been, payable under the compensation Act in force at the date of the injury (i.e. the 1912 Act, the 1930 Act or the 1971 Act).
Of relevance here, is Mr Rose’s entitlement to permanent impairment lump sum compensation under s 24 of the SRC Act. In relation to such claims, s 124(3) of the SRC Act states:
(3)A person is not entitled to compensation under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencement date, if:
……
(b)the person was not entitled to receive compensation of a lump sum in respect of that impairment or death:
……
(ii)where the impairment or death occurred after commencement of the 1930 Act but before the commencement of the 1971 Act – under the 1930 Act as in force when the impairment or death occurred; or
………..
(4)The amount of compensation (if any) that a person is, by virtue of this section, entitled to receive under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing day, shall be the same as the amount of compensation that would have been payable to that person, if this Act had not been enacted, under:
…….
(b)where the impairment or death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act – the 1930 Act as in force when the impairment or death occurred; or death
Consequently, the date when “impairment” becomes “permanent” affects a person’s entitlement to compensation for impairments resulting from an injury before 1 December 1988 (being the commencement date of the SRC Act).
The term “impairment” is defined in s 4(1) of the SRC Act as:
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.
The term “permanent” is defined in s 4(1) of the SRC Act as “likely to continue indefinitely” and this definition is complemented by s 24(2) of the SCR Act which sets out some factors to which the decision maker is to have regard in determining whether impairment is “permanent”.
The Final Medical Board Report (see paragraph 6 above), the Discharge History Questionnaire (see paragraph 9 above), the medical report of Dr Daley and Dr Mikoszu, dated 22 May 1971 (see paragraph 10 above) and the medical reports of Dr Wyatt, dated 31 July 2012 and 25 June 2014 (see paragraphs 33 and 42 above), establish that Mr Rose had a pre-existing degenerative condition, being “Scheuermann’s disease”, and that he also suffered an aggravation of this condition following a fall from a truck in August 1970, prior to his enlistment in the Army.
The fact that Mr Rose has an “aggravation of Scheuermann's disease” condition was accepted in the determination stamped 8 February 1971 Determination: refer to paragraph 12 above. Further, liability was accepted for incapacity payments for Mr Rose’s accepted “Aggravation of Scheuermann’s disease” condition for various periods following the 8 February 1971 Determination: refer to paragraph 13 above.
There is no medical evidence to support Mr Rose’s contention that he sustained an injury to his back resulting from a fall from a flying fox (without a safety harness) during training in February 1971. In support of this finding, the Tribunal refers to the Final Medical Board Report (see paragraph 6 above), the Discharge History Questionnaire (see paragraph 9 above) and the medical report of Dr Daley and Dr Mikoszu, dated 22 May 1971 (see paragraph 10 above).
Consequently, the Tribunal finds that Mr Rose’s “impairment” became permanent sometime prior to 1 September 1971 (being the commencement date of the 1971 Act). As such, his claim must be assessed under the 1930 Act: s 124(3)(b)(ii) of the SRC Act.
Since the 1930 Act did not provide for the payment of lump sum compensation for “aggravation of Scheuermann’s disease” Mr Rose is not entitled to lump sum permanent impairment compensation under s 24 of the SRC Act (i.e. in accordance with the transitional provisions in s 124 of the SRC Act): s 9 of the 1930 Act and and The First Schedule and The Third Schedule to the 1930 Act.
Even if the Tribunal were to find that Mr Rose’s impairment became “permanent” on or after 1 September 1971 (being the commencement date of the 1971 Act) but before 1 December 1988 (being the commencement date of the SRC Act), Mr Rose would not be entitled to compensation under the 1971 Act and, it follows, under s 24 of SRC Act, by reason of the transitional provisions in s 124 of the SRC Act. This is because whilst the 1971 Act, like the SRC Act, provided for compensation for permanent impairment for certain injuries, it did not provide compensation for permanent impairment for back conditions such as Mr Rose’s accepted “aggravation of Scheuermann’s disease” condition.
Has there been a new impairment suffered on or after 1 December 1988?
To be entitled to permanent impairment compensation under s 24 of the SRC Act, Mr Rose must demonstrate there has been a new impairment, being a qualitative and quantitative change in Mr Rose’s impairment, suffered on or after 1 December 1988 (being the commencement date of the SRC Act).[10]
[10] Department of Defence v West (1998) 156 ALR 651 and Comcare v Maida [2002] FCA 1284 at [28].
The medical reports of Dr Wyatt dated 31 July 2012 and 25 June 2014 (see paragraphs 33 and 42 above), the x-ray report, dated 13 July 1979, and the x-ray report dated 21 July 2011 (see paragraphs 33, 42 and 44 above) show that Mr Rose is experiencing the progression of his Scheuermann’s disease, which does not constitute a new or distinct impairment. Further, the imaging results demonstrate there have been little, if any, changes in Mr Rose’s pathology since 1972: see paragraphs 33, 42 and 44 above.
DECISION
For the above reasons, the Tribunal affirms the Hearing Loss & Tinnitus Decision (file no. 2013/6169) and the Back Condition Decision (file no. 2014/1874).
I certify that the preceding 87 (eighty seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh ..(Sgd) A Tran......................................................................
Administrative Assistant
Dated 11 August 2015
Representative for the
ApplicantSelf-represented Representative for the
RespondentMr B Dube
Solicitors for the Respondent Sparke Helmore Lawyers
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