Wheeler and Defence Force Retirement and Death Benefits Authority

[2003] AATA 892

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION  [2003] AATA 892

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/606

GENERAL ADMINISTRATIVE DIVISION		)
Re		DAVID BENTON WHEELER

Applicant

And DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY

Respondent

DECISION

Tribunal Senior Member K L Beddoe

Date12 September 2003 

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

(Sgd) K L Beddoe

Senior Member

CATCHWORDS

DEFENCE FORCES – retirement and death benefits – impairment classification and rating

PRACTICE AND PROCEDURE – extensions of time – whether applicant has a reasonable excuse for failing to seek reconsideration of decision within the prescribed period – prejudice – whether extension of time should be granted

Defence Force Retirement and Death Benefits Act 1973 s 30, 34, 99

REASONS FOR DECISION

12 September 2003  Senior Member K L Beddoe         

1.      The respondent authority refused, on reconsideration, a belated request for reconsideration of three decisions of the respondent.  That decision was notified by letter dated 28 June 2002 (T135) which enclosed a statement of reasons.  On 12 July 2002 the applicant made a valid application for review of that decision.

2.      The applicant seeks, in effect, extensions of time to seek reconsideration of decisions made by the Defence Force Retirement and Death Benefits Authority (“the Authority”) as follows:

(a)decision notified on 14 February 1985 pursuant to section 30 of the Defence Force Retirement and Death Benefits Act 1973 (“the Act”) whereby the applicant was classified Class B incapacity from 25 August 1984 (T20/39);

(b)decision notified on 8 April 1987 pursuant to section 34 of the Act whereby the Authority changed the percentage of incapacity from 50% to 30% but maintained Class B incapacity (T38/68); and

(c)decision notified on 26 June 1989 pursuant to section 34 of the Act whereby the Authority changed the percentage of incapacity back to 50% but maintained Class B incapacity (T51/95).

3.      In 2000 the applicant sought review and subsequently reconsideration in this Tribunal of a decision to maintain incapacity at 50% (T92/196).  Those proceedings were resolved by agreement and the Tribunal made a decision in writing which included:

“(iii)that for the purposes of section 30…percentage of incapacity…was 60% and that his classification should therefore be Class A on and from 16 May 2000.”

4. At the hearing the applicant conducted his own case and Mr Dube¢ represented the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents and the following documents were tendered and marked as exhibits:

Exhibit A:      Applicant’s letter of 19 August 2002 with attachments

Exhibit 1:       Affidavit of Sophie Genevieve Callan dated 15 November 2002.

Oral evidence was given by the applicant.

5.      The applicant was born on 7 July 1961, joined the RAAF on 5 September 1978 and was discharged medically unfit on 24 August 1984 with the rank of leading aircraftman.  During his RAAF service the applicant suffered an eye injury in an accident not related to his employment but being the causative factor for his discharge on medical grounds.

6.      The essence of the applications for extensions of time is to seek to have the consent decision of 2001 backdated in effect to the day after discharge from the RAAF.  The reason for making the applications is the applicant’s assertion that his incapacity was not assessed properly until Dr Bendeich assessed it at 70% in 1989.  The applicant only became aware of this and other matters during the proceedings in this Tribunal in 2000/2001.  In particular, in anticipation of his discharge from the RAAF an Air Force doctor had assessed the degree of incapacity for civil employment (trades assistant, clerical/office assistant) at 60%.  That assessment was taken into account with a report by Dr Whaites (T18/37) when the Authority made the decision notified on 14 February 1985.

7.      The applicant sought reconsideration of that decision.  The Authority made further enquiries. One of those enquiries was a further medical opinion from Dr Spiro who assessed incapacity at 10%.  Acting on advice from an officer of Comsuper the applicant withdrew the request for reconsideration (T32/57).  On the material now before the Tribunal it is not open for me to find that advice was given for any reason other than to protect the applicant from a possible adverse decision on reconsideration.

8.      The applicant did not seek another reconsideration until 26 June 2000 (T76/146).  That request was ultimately successful resulting in this Tribunal’s consent decision of 10 August 2001 (T122/261).

9.      In relation to Dr Bendeich’s report dated 24 May 1989 (T46/84) it is apparent on its face that it is based on a discussion with a Dr Macintosh, Ophthalmic Surgeon, who made a detailed report dated 10 March 1989 (T43/78).  Dr Macintosh assessed “visual impairment” at 56%.  Dr Macintosh did not assess incapacity in relation to civil employment.  It is not apparent, on its face, as to why Dr Bendeich made that assessment at 70%.  Dr Bendeich was a senior medical officer employed by the Department of Community Services and Health.

10. Dr Ulrich, Deputy State Manager, Department of Community Services and Health made a report to the Authority dated 1 July 1989. Dr Ulrich correctly noted that the Act does not include impairment tables as are found in other jurisdictions. He referred to the American Medical Association Guides to the Evaluation of Permanent Medical Impairment and the Impairment Tables then used in conjunction with the Social Security Act 1947. Dr Ulrich concluded that the incapacity in relation to civil employment was 40%.

11.     The affidavit of Sophie Genevieve Callan (Exhibit 1) satisfies me that the records of Dr Whaites and Dr Spiro are no longer available.  Dr Macintosh is no longer listed in the Medical Directory of Australia, there are no contact details for Dr Bendeich, and Dr Ulrich has retired.  In essence, I am satisfied that the respondent would be prejudiced if it was now sought to review the decisions of the Authority that relied on reports by those doctors.

12.     Given that the Authority’s decisions are consistent with the contemporaneous medical reports and the applicant does not rely on medical reports not made available to the Authority, I must conclude that the applicant’s prospects of success, if extensions of time were granted, are slight at best.

13.     I am satisfied that the applicant accepted the contemporaneous decisions of the Authority until 2000, because, on an objective basis, there was good reason to do so.  The fact of the increase to Class A from 16 May 2000, by consent decision of the Tribunal, is not a reason for an assumption or inference that the applicant was entitled to that assessed level of incapacity for civil employment from some earlier date. 

14. Sub-section 99(2) of the Act provides that a person who is affected by a decision of the Authority and is dissatisfied with the decision may, within 30 days after notice of the decision or within such further period as the Authority allows, request the Authority to reconsider the decision. A decision to refuse a further period is a reviewable decision in this Tribunal.

15.     In relation to the decision notified on 14 February 1985 the applicant made a request for reconsideration.  He withdrew that request, on advice, when he perceived the possibility of an adverse decision on reconsideration.

16.     Since that time until 2000 the applicant has corresponded with the Authority from time to time but has, in effect, rested on his rights until he sought reconsideration of the decision notified on 16 May 2000 (T73/137).

17.     Taking all the material into account I am satisfied that the prima facie rule should be adopted in this case, that is, proceedings sought to be commenced outside the prescribed period should not be entertained unless there is a reasonable explanation of the delay.  I am satisfied there is not a reasonable explanation for the delay in this case.

18.     The decision under review will be affirmed.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K L Beddoe

Signed:         Sarah Oliver
  Associate

Date of Hearing  4 December 2002
Date of Decision  12 September 2003

The Applicant appeared in person
For the Respondent                  Mr Dube¢