Wallace and Comcare - [2002] AATA 1131

DECISION AND REASONS FOR DECISION [2002] AATA 1131

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/309

VETERANS APPEALS DIVISION        )
           Re      Alan Wallace
  Applicant
           And    Comcare
  Respondent

DECISION

Tribunal Mr RP Handley, Deputy President

Date4 November 2002
PlaceSydney

Decision The Tribunal affirms the decision under review.

..............................................
RP Handley
Deputy President
CATCHWORDS
COMCARE – Department of Veterans' Affairs – issue of jurisdiction – whether the Tribunal has jurisdiction in respect of a claim lodged out of time – necessity to lodge a claim within six months of the awareness of the disease - examination of the Applicant's medical history during his war service – held ignorance of the law not a reasonable cause for failing to lodge claim on time as required by the legislation - decision of the Respondent affirmed.

Commonwealth Employees Compensation Act 1930 s 16, 16(1)(4)
Compensation (Commonwealth Employees) Act 1971 s 104
Safety Rehabilitation and Compensation Act 1988 ss 4, 124, 124(2)
Commonwealth of Australia v Connors (1989) 86 ALR 247
Re Muras and Department of Defence (1998) 52 ALD 579
Secretary, Department of Veterans' Affairs v Studdert [2001] FCA 1642
Telstra Corporation v Roycroft (1997) 77 FCR 358

REASONS FOR DECISION

4 November 2002 Mr RP Handley

This matter involves an application by Alan Wallace ("the Applicant") for a review of a decision of a delegate of Comcare ("the Respondent") made on 12 November 2001 to deny liability to pay compensation to Mr Wallace in respect of asthma, bronchitis and stress.
At the hearing, the Applicant was represented by David Christie of the Returned Services League ("RSL") and the Respondent was represented by Geoff Johnson, of Counsel. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents), together with exhibits tendered by both parties. Oral evidence was given by Mr Wallace.
BACKGROUND
Mr Wallace was born on 11 March 1949 and is aged 53. He enlisted in the part-time Citizen Military Force ("CMF") on 4 April 1966 at the age of 17 for a term of two years (T3 p16). Mr Wallace claims that in the course of his training, in about October/November 1966, he contracted pneumonia and pleurisy which exacerbated asthma which he had as a child (T3 p12). He was discharged from the CMF as medically unfit on 6 April 1967 (T3 p19). Subsequently, he was called up for National Service and re-enlisted in the Army on 28 January 1970. He completed almost two years of National Service before being discharged on 15 November 1971 (T3 p29).
On 28 February 2001, Mr Wallace completed a claim for compensation in respect of respiratory illness – asthma/bronchitis – and stress dating from 1966/1967 (T3 p9). By letter dated 6 March 2001 (T4), a delegate in the Military Compensation and Rehabilitation Service ("MCRS") notified Mr Wallace of his intention to disallow the claim because a claim was not lodged within six months of the injury incurring or of Mr Wallace becoming aware…

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 Wallace and Comcare

Details

AGLC: Wallace and Comcare [2002] AATA 1131
Case: [2002] AATA 1131
Decision Date: 4 November 2002

CaseChat Overview and Summary

In the case of Wallace v Comcare, the applicant sought compensation for respiratory illnesses and stress that he claimed were caused by his military service. The Commonwealth of Australia, represented by Comcare, denied the claim on the basis that it was not lodged within the required six-month period as mandated by the Commonwealth Employees Compensation Act 1930. The applicant argued that his failure to lodge the claim on time was due to ignorance of his right to do so. The Administrative Appeals Tribunal was tasked with determining whether the Tribunal had jurisdiction over the claim and if the applicant's delay in lodging the claim was due to reasonable cause.

The central legal issue before the Tribunal was whether the delay in lodging the claim constituted a reasonable cause under the legislation. The relevant statutory provisions required that any claim be made within six months of the injury or disease becoming known, with exceptions for cases of mistake, absence from Australia, or other reasonable cause. The Tribunal needed to assess the applicant's evidence and determine if his ignorance of the legal requirement constituted a reasonable cause for the delay. Additionally, the Tribunal had to consider the transitional provisions of the Safety Rehabilitation and Compensation Act 1988 in relation to the period during which the injuries were alleged to have occurred.

The Tribunal found that the applicant's ignorance of the legal requirement to lodge a claim within six months did not constitute a reasonable cause as contemplated by the legislation. The Tribunal emphasised that ignorance of the law is not a defence and that the applicant had an obligation to be aware of his rights under the legislation. The Tribunal noted that the applicant's military records did not support his claims regarding the specific timing and nature of his injuries, further complicating the issue. Ultimately, the Tribunal concluded that the applicant's failure to lodge the claim within the statutory timeframe was not due to reasonable cause, and affirmed the decision of Comcare to disallow the claim.

Orders

Orders of the court

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Background

Background to the litigation

At the hearing, the Applicant was represented by David Christie of the Returned Services League ("RSL") and the Respondent was represented by Geoff Johnson, of Counsel. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents), together with exhibits tendered by both parties. Oral evidence was given by Mr Wallace.BACKGROUND Mr Wallace was born on 11 March 1949 and is aged 53. He enlisted in the part-time Citizen Military Force ("CMF") on 4 April 1966 at the age of 17 for a term of two years (T3 p16). Mr Wallace claims that in the course of his training, in about October/November 1966, he contracted pneumonia and pleurisy which exacerbated asthma which he had as a child (T3 p12). He was discharged from the CMF as medically unfit on 6 April 1967 (T3 p19). Subsequently, he was called up for National Service and re-enlisted in the Army on 28 January 1970. He completed almost two years of National Service before being discharged on 15 November 1971 (T3 p29). On 28 February 2001, Mr Wallace completed a claim for compensation in respect of respiratory illness – asthma/bronchitis – and stress dating from 1966/1967 (T3 p9). By letter dated 6 March 2001 (T4), a delegate in the Military Compensation and Rehabilitation Service ("MCRS") notified Mr Wallace of his intention to disallow the claim because a claim was not lodged within six months of the injury incurring or of Mr Wallace becoming aware of the disease, as required by s 16 of the Commonwealth Employees Compensation Act 1930 ("the 1930 Act"), as a result of which there was prejudice to the Commonwealth. Mr Wallace was invited to provide an explanatory statement, which he did by letter dated 26 March 2001 (T5). By letter dated 5 May 2001 (T6), the delegate disallowed Mr Wallace's claim. On 27 June 2001, Mr Wallace applied for a review of that decision (T9). By letter dated 14 August 2001 (T10), a review delegate invited Mr Wallace to submit an independent medical report. Mr Wallace provided a report from Dr Michael Bint, Thoracic Physician, dated 9 September 2001 (T11). Dr Bint said Mr Wallace has chronic asthma – he had had mild childhood asthma which remitted in late childhood/early adolescence but was:Significantly exacerbated by continual exposure to a variety of recognised trigger factors during his National Service. His asthma has never subsequently remitted. By letter dated 12 November 2001 (T p12), the review delegate informed Mr Wallace of his decision to affirm the original decision. On 16 January 2001, Mr Wallace lodged an application with the Tribunal for a review of this decision.APPLICABLE LEGISLATION At the time Mr Wallace made his claim on 28 February 2001, the relevant legislation was the Safety Rehabilitation and Compensation Act 1988 ("the 1988 Act"), the relevant provisions of which came into effect on 1 December 1988. Part X, Division 2 of the 1988 Act contains transitional provisions in respect of injuries or diseases that occurred or were contracted before that date. In particular, s 124(2) states relevantly:124(2)A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage: (a)…(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 ……

Evidence

Evidence Before The Court

There is no dispute that Mr Wallace did not make a claim within six months of the alleged injuries occurring. The issues for the Tribunal to determine are, first, whether notice of the injuries was served upon the Commissioner as soon as practicable after they happened or of Mr Wallace becoming aware that he was suffering from the disease and before Mr Wallace left the employment of the Commonwealth and, second, whether failure to make a claim within six months was occasioned by mistake, absence from Australia or other reasonable cause.THE APPLICANT'S EVIDENCE Mr Wallace said he contracted pneumonia and pleurisy after attending a recruit training camp in October 1966 while he was serving in the CMF. It was this that led to his medical discharge on 6 April 1997. Mr Wallace acknowledged that he did not experience asthma while in the CMF but only later during his National Service in 1970/1971. He agreed that he had filled out a claim for compensation (T3) incorrectly to the extent that he had referred to his service in the CMF rather than his National Service as being the period when the injury or disease occurred. Mr Wallace said that he was notified in July 1969 of being required to attend for a medical examination with a view to his being conscripted for National Service. His Medical Examination Record signed by him on 16 July 1969 (T3 p20) records that he had contracted pleurisy in 1967 and had asthma. However, a note by the Examining Doctor states "Asthma not confirmed". Mr Wallace passed the medical examination and was subsequently required to re-enlist on 28 January 1970. Mr Wallace said his mother had told him he had asthma as a child although he has no specific recollection of this. He would have told the Examining Doctor this at the medical examination. During Mr Wallace's National Service, he experienced asthma and needed medical treatment. His Army medical "Attendance and Treatment Card" (T3 pp23-25) records, on 2 March 1971, a cough, tightness of chest and "wheeze" for five weeks. On 12 March 1971, the Card records that he still had "some wheeze now mainly in morning". Mr Wallace said that in 1970, after the initial three months recruit training, he was posted to the Artillery Corps. Then in April 1971, he commenced work as a batman. He was answerable to his Sergeant but also to the officers in his Battery. If Mr Wallace was sick, he would need to obtain a chit from the Sergeant who would send him to the Regimental Aid Post ("RAP") to see a doctor. When attending the RAP, he had not been required to fill out any documentation, although he remembered that when he had an injury to his eyes in May 1971, as a result of "lime marker" splashing in his eyes blinding him for three days, he was asked to complete and sign a form when he had recovered. Mr Wallace said his National Service intake were discharged two months prior to completion of their two years because of a change in Government policy. Mr Wallace was serving at Holsworthy at the time. They were only given about a month's notice of their early discharge during which time they underwent a pre-discharge chest x-ray and medical examination.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Subsequently, Mr Wallace contacted MCRS in Brisbane by phone to ask about making other claims. They told him that there was no time limit on his lodging a claim and sent him forms and a pamphlet. He therefore lodged a claim in respect of asthma, bronchitis and stress (T3), this being the first time he had done so.CONSIDERATION OF THE LAW AND FINDINGS On the basis of Mr Wallace's evidence, the Tribunal finds that he did not lodge a claim in respect of asthma, bronchitis and stress because of ignorance of his right to do so. This may well have been because he was not informed of this during his Army service. His Army medical records indicate that he contracted pleurisy while in the CMF in 1966/1967 and suffered from bronchitis and wheeziness in March 1971. A Training Record dated 3 April 1970 stated that he "Breaks under pressure (nervous)" (T3 p22). Mr Wallace first lodged a claim for compensation in respect of asthma, bronchitis and stress on 28 February 2001. Mr Wallace has been unable to provide any medical record establishing that he had asthma as a child, or as to his claim that he contracted pneumonia in addition to pleurisy in October 1966. After his discharge on 15 November 1971, his next medical records date from 1979. The Tribunal accepts that it would be difficult for the Commonwealth to investigate Mr Wallace's claims in respect of 1966/1967 and 1970/1971 so many years later. At the hearing, Mr Wallace acknowledged that his claim lodged on 28 February 2001 should have referred to his National Service during 1970/1971 rather than his service in the CMF during 1966/1967. His Army medial records indicate that Mr Wallace suffered bronchitis and wheeziness in March 1971. The only record as to Mr Wallace suffering nervousness is dated 3 April 1970. At these times, the relevant legislation was the 1930 Act. The liability provisions of the Compensation (Commonwealth Employees) Act 1971 ("the 1971 Act") came into operation on 1 September 1971. The transitional provisions in s 104 of the 1971 Act limit claims in respect of the period before 1 September 1971 in terms of the liability that would have arisen under the 1930 Act. Pursuant to s 124(2) of the 1988 Act, a person's entitlement to compensation in respect of the period up to 30 August 1971 is determined by reference to the 1930 Act. Subsections 16(1) and (4) provide that the Commissioner shall not admit a claim unless first, notice of the injury or disease was served on the Commissioner as soon as practicable after the injury happened or the person became aware that he or she was suffering from the disease, and before the person left the employment of the Commonwealth. However, the want of a notice shall not prevent consideration of the claim by the Commissioner if the Commonwealth is not prejudiced by the want of a notice or if the want of a notice "was occasioned by mistake, absence from Australia or other reasonable cause". Secondly, the person must have made a claim for compensation within six months of the accident occurring or of his/her becoming aware of suffering from the disease. However, a failure to make a claim within six months shall not prevent consideration of the claim "if the failure was occasioned by mistake, absence from Australia or other reasonable cause".