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 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 …
…

The definition of "injury" in s 4 of the 1988 Act includes "disease".

Section 16(1) of the 1930 Act states:
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
(b)in the case of death – within six months after advice of the death has been received by the claimant:
Provided always that –
(i)the want of or 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, effect 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.

Section 16(4) provides that in relation to a claim in respect of an employee who is suffering from a disease, notice of the accident shall be deemed to have been in served in accordance with the provisions of s 16(1) if notice of the contracting of the disease was served on the Commissioner "as soon as practicable after the employee first became aware that he was suffering from the disease". A claim for compensation shall be deemed to have been made within the period required by s 16(1) if the claim was made "within six months after the employee first became aware that he was suffering from the disease".
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.
Mr Wallace said he had heard of a "Report of Injury" form. This was what he completed after his eye injury. He has never heard of Military Board Instructions. He was never told that he could claim compensation for injuries or diseases that occurred during his Army service, nor that he had to make such a claim within six months. If, prior to his discharge on 15 November 1971, he had been aware of this and had had an ongoing problem, he would have made a claim.
Mr Wallace said that he did not become aware that he could make a claim until 1998. He contacted Major Tattersal, the Director of Entitlements in Canberra about a hearing problem. Major Tattersal advised him to contact MCRS and lodge a claim for hearing loss. He did this in January/February 1999, his claim was accepted in June 1999 and he received $2700 compensation. Nothing was ever said to him about the need to lodge a claim within six months of the injury occurring.
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".
The Tribunal must consider how subsections 16(1) and (4) apply in Mr Wallace's case. With regard to service of notice of the injury or disease, the Tribunal finds that Mr Wallace became aware that he was suffering from asthma, bronchitis and stress during the course of his National Service in 1970/1971: as to asthma and bronchitis, at the latest, at the time of his medical treatment for a chest infection in March 1971; as to stress, probably in April 1970. Mr Wallace did not notify the Commissioner of the injury or disease before he left the Commonwealth's employment.
The Tribunal accepts that the Commonwealth has been prejudiced by the failure to give notice as soon as practicable, give the lapse of time between 1971 and notification which occurred at the time Mr Wallace lodged his claim which was completed on 28 February 2001. Thirty years having elapsed, an investigation of the claim would obviously be very difficult especially given the lack of medical evidence as to the incidents in question and in relation to Mr Wallace's condition in the period immediately after his discharge, the first available records being from 1979.
The Tribunal notes the decision in Re Muras and Department of Defence (1998) 52 ALD 579 at paragraphs 14 and 15, where the Tribunal found that the fact of the Commonwealth having provided medical treatment for a person could not constitute notification for the purposes of subsection 16(2). Subsection 16(2) requires a "statement in ordinary language of the cause of injury and the date at which the accident happened", the purpose being to enable the Commonwealth to investigate the circumstances as soon as possible after they occur.
Mr Johnson, for the Respondent, referred the Tribunal to a number of authorities on the interpretation of "occasioned by mistake, absence from Australia or other reasonable cause". In Secretary, Department of Veterans' Affairs v Studdert [2001] FCA 1642 at paragraph 32, Moore J emphasised that the words "occasioned by" require that there be "a direct relationship between the failure of the individual to make a claim and the reasonable cause".
In Commonwealth of Australia v Connors (1989) 86 ALR 247, the Full Federal Court considered the meaning of "mistake" in this context. Northrop and Ryan JJ stated, at page 250:
From the authorities it is clear in this context the word "mistake" includes mistake of law as well as of fact but that ignorance of the law in the sense of a failure to advert to the existence of the right to a claim, does not constitute, by itself, a mistake and cannot, by itself, constitute other "reasonable cause".
In Telstra Corporation v Roycroft (1997) 77 FCR 358 at 365-366, North J relied on Connors (supra) in distinguishing a mistake as to the facts from ignorance of the law. Similarly, in Muras (supra) at para 20, Deputy President McMahon found:
the only evidence going to mistake or other reasonable cause is the evidence of the applicant that he was unaware that he could obtain compensation from the respondent … All the cases agree that ignorance does not amount to a mistake or other reasonable cause.
Mr Christie, for the Applicant, contended that a relevant matter was that Mr Wallace had not been informed of his right to lodge a claim for compensation. He referred to the Military Board Instructions which he said would have required Mr Wallace's superior to inform him of his rights. There was no evidence before the Tribunal that such Instructions existed at the relevant time in 1970/1971. Mr Johnson contended that they did not and referred the Tribunal to Studdert (supra) at para 35-36. As Moore J pointed out in that decision, such Instructions, even if they existed at the relevant time – and there was evidence in that case that they did not - would have constituted a statement of policy only. Mr Johnson submitted that, in any event, because Mr Wallace had not asserted that he believed an Instruction to prevail, the Instructions were not relevant.
The Tribunal has found that Mr Wallace did not lodge a claim in respect of asthma, bronchitis and stress because of ignorance of his right to do so. The Tribunal is bound to follow the Federal Court in determining that such ignorance cannot amount to a mistake and cannot, by itself, constitute other reasonable cause. The Tribunal is not persuaded by Mr Christie's submission with regard to the Military Board Instructions in the absence of any evidence of Mr Wallace's knowledge or reliance on such Instructions at the time, assuming they did exist at the time, which the Respondent disputes, and noting their status as a statement of policy only.
Thus, since Mr Wallace did not give the requisite notice nor lodge a claim in accordance with subsections 16(1) or (4), pursuant to s 16 of the 1930 Act and s 124(2) of the 1988 Act, his claim for compensation shall not be admitted, meaning it shall not be entertained. The Tribunal therefore affirms the decision under review.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President
Signed:         .....................................................................................
  Associate
Date of Hearing                  29 October 2002
Date of Decision                  4 November 2002
Representative for the Applicant              Mr D Christie, Advocate
Representative for the Respondent        Mr G Johnson, Counsel