Studdert and Comcare - [2001] AATA 339

DECISION AND REASONS FOR DECISION [2001] AATA 339

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/326

GENERAL ADMINISTRATIVE DIVISION       )
           Re      DONALD STUDDERT
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal M J Sassella, Senior Member

Date26 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 heart and respiratory conditions meets the requirements of s 16 of the Commonwealth Employees Compensation Act 1930 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 – respiratory disease – lodging compensation claim more than six months after onset of injury – prejudice to the respondent – unavailability of medical records – unavailability of witnesses –– transitional provisions – compensation for medical expenses – other reasonable cause – National Service – basic training – tear gas exposure – lack of medical treatment
Safety, Rehabilitation and Compensation Act 1988, ss 123A, 124(1), (1A), (2)(b), (3), (4), (8), (9), (10)(b)
Commonwealth Employees Compensation Act 1930 s 16
National Service Act 1951, ss 25-27

Telstra Corporation Limited v Roycroft (1997) 47 ALD 671
Re Vickery and Commonwealth of Australia (1985) 8 ALD 93
Re Loft and Comcare (AAT 10819, 14 November 1995)
Secretary of the Department of Defence as a Delegate of Comcare v Gorton [2000] FCA 416
Re Muras and Department of Defence (1998) 52 ALD 580
Commonwealth of Australia v Connors (1989) 86 ALR 247
Comcare v Luck (1999) 29 AAR 403

REASONS FOR DECISION

25 April 2001 M J Sassella, Senior Member

History of the application

On 7 July 1998 Donald Studdert ("the Applicant") completed a Department of Defence benefit election record, a claim for medical services and medical release authority in respect of his heart condition and "heart by pass [operation] and stress." (T7)
On 20 July 1998 the Applicant wrote to a delegate of Comcare ("the Respondent") in the Department of Defence, Military Compensation & Rehabilitation Service, attaching a claim for compensation in regard to heart and respiratory conditions allegedly caused by a gassing incident whilst he was serving in the Australian army. The incident occurred on 6 April 1955 (T3).
On 9 February 1999 the delegate wrote to the Department of Defence's Directorate of Entitlements (T7). He requested information on the Applicant's alleged gas exposure and any relevant medical information.
On 25 February 1999 the delegate's letter of 9 February (T7) was replied to by the Defence Health Service Branch (T8). This letter stated that there was no record of the Applicant's injury, illness or condition in the Central Medical Record.
On 23 June the Respondent disallowed the Applicant's claim for compensation (T17). In doing so it relied on the letter of Dr Braude, consultant physician, of 3 May 1999 (T13)…

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 Studdert and Comcare

Details

AGLC: Studdert and Comcare [2001] AATA 339
Case: [2001] AATA 339
Decision Date: 26 April 2001

CaseChat Overview and Summary

The case of Studdert and Comcare involved a dispute between the Applicant, Mr Studdert, and the Respondent, Comcare, regarding the entitlement of Mr Studdert to compensation for heart and respiratory conditions he developed during his service in the Australian Defence Force. The dispute was brought before the Administrative Appeals Tribunal of Australia, which was tasked with determining the jurisdiction and admissibility of Mr Studdert’s compensation claim under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The central issue before the Tribunal was whether Mr Studdert's claim, which was lodged more than six months after he became aware of his conditions, could be entertained by Comcare, given the statutory requirement to notify and lodge claims within specific timeframes.

The Tribunal examined several legal issues, including the applicability of the Commonwealth Employees Compensation Act 1930 (Cth) to Mr Studdert's situation, considering he was a conscript under the National Service Act 1951 (Cth) and thus not voluntarily employed. The Tribunal also considered whether Mr Studdert's delayed notification and claim could be excused under the 'other reasonable cause' provision of the 1930 Act. Furthermore, the Tribunal had to assess whether the delay in lodging the claim had prejudiced Comcare, considering the unavailability of medical records and witnesses due to the passage of time.

In its decision, the Tribunal found that Mr Studdert's argument regarding his status as a conscript did not absolve him from the obligation to notify and claim as soon as practicable, as mandated by the 1930 Act. The Tribunal held that the requirement to notify was not contingent upon the employee's voluntary departure from employment and thus applied equally to Mr Studdert. Additionally, the Tribunal determined that Mr Studdert's lack of inquiry into his rights and the absence of advice from the Army could be considered 'other reasonable cause' for the delay, and that Comcare had not been prejudiced by the delay, given the unavailability of relevant medical records and witnesses. Consequently, the Tribunal ruled that Mr Studdert's claim should be entertained and remitted the matter to Comcare for consideration of the compensation claim.

The Tribunal ordered the reviewable decision to be set aside and directed Comcare to admit Mr Studdert’s claim for compensation for heart and respiratory conditions for consideration, finding it met the requirements of the 1930 Act despite the late notice and claim. Additionally, the Tribunal ordered Comcare to pay Mr Studdert'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

In summary, Mr Elliott pressed on the Tribunal that Mr Studdert had made no inquiry of the Army and was given no advice, bad or otherwise. He was simply ignorant.Findings on material questions of fact with reference to the evidence or other material on which the findings are based These reasons have been prepared without access to a transcript of the proceedings. The primary legislation relevant to this application is the 1988 Act. The 1988 Act is the only Commonwealth workers' compensation legislation currently in force, however in some of its provisions it provides for compensation payments to be made only if an employee would have been paid under an earlier repealed compensation Act, such as the 1930 Act. A repealed Act can thereby become important in applying the 1988 Act. The first issue to be dealt with is the Applicant's argument that s 16 of the 1930 Act is irrelevant to the Applicant because he was a conscript who could not voluntarily leave the employment of the Army. That meant that the phrase in s 16(1) of the 1930 Act requiring an employee who has had an accident to notify the employer about the accident as soon as practicable after the accident, "and before the employee has voluntarily left the employment of the Commonwealth" could not meaningfully be applied to the Applicant. The Tribunal finds this an intriguing argument but is not persuaded. Regardless of whether the National Service Act can be read as barring a national serviceman from voluntarily leaving national service within the 18 months commitment, the obligation in s 16(1) is that an employee must notify of an accident as soon as practicable. There is no doubt that this requirement can meaningfully be applied to the Applicant and to other national service inductees. The reference in s 16(1) to having to notify, in any case, before voluntarily leaving Commonwealth employ simply imposes an outer limit on what might be the appropriate period for giving notice if the practicalities, for some reason, mean that reasonably timely notice is not practicable, or if the employee is about to leave Commonwealth employ quite soon. It does not appear to the Tribunal to matter if the phrase referring to leaving of employment cannot be applied. The underlying obligation to act as soon as practicable remains undisturbed.Has the Applicant satisfied s 16 of the 1933 Act? Section 16(4) of the 1930 Act required an employee who contracted a disease to serve on the Commonwealth notice in writing of the contraction of the disease as soon as practicable after the employee became aware that he was suffering from the disease, and to lodge a claim within six months after first becoming aware that he or she was suffering from the disease. The proviso in s 16(1) of the 1933 Act permitted a claim to be entertained in several situations. One was if a notice was actually served but it failed to comply with time or form requirements, provided that the Commonwealth would not, by reason of the failure. be prejudiced by the failure. The others arise if the failure was occasioned mistake, or absence from Australia or any other reasonable cause.

Decision

Reasons for decision

The Tribunal has therefore decided that the Applicant's claim in respect of heart and respiratory conditions should be entertained by the Respondent.Decision The Tribunal decides: to set aside the reviewable decision; and to remit the matter to the Respondent with the direction that the Applicant's claim for compensation for heart and respiratory conditions meets the requirements of s 16 of the Commonwealth Employees Compensation Act 1930 regarding late notice and claim and is to be admitted for consideration; and 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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