Adams and Military Rehabilitation and Compensation Commission

[2009] AATA 790

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 790

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3928

GENERAL ADMINISTRATIVE DIVISION		)
Re		MICHAEL ADAMS

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date15 October 2009

PlaceSydney

Decision The decision under review is affirmed.

....................[sgd].....................

Dr J D Campbell
  Member

CATCHWORDS

MILITARY COMPENSATION – claim for osteoarthritis both ankles lodged October 2007 – injury upon which claim is based relates to military employment in the first half of 1971 – issues of delay in claim lodgement and issue of prejudice under 1988 Act – consideration of claim pursuant to section 16 of the 1930 Compensation Act – decision under review is affirmed

Relevant Acts

Safety Rehabilitation and Compensation Act 1988 – sections 53, 124

Commonwealth Employees’ Compensation Act 1930 – section 16

Citations

Telstra Corporation Limited v Roycroft (1997) 77 FCR 358; 47 ALD 671

REASONS FOR DECISION

15 October 2009	Dr J D Campbell, Member
Background

1.      Mr Adams was born in Finland on 2 November 1945.  He left school at age 17 and commenced his national service in Finland in February 1964.  As part of his national service commitment, Mr Adams served for 204 days with the United Nations in Cyprus.

2.      Mr Adams migrated to Australia in September 1970, and located to Sydney in the latter months of that year, at which time he lived in Bondi while working for IBM at Lidcombe – a job which involved standing at printing presses.

3.      Army records indicate that Mr Adams served as an infanteer with HQ Company 2 Division – a citizen military forces unit between 21 January 1971 and 2 June 1971, at which time some records indicate that Mr Adams was discharged on grounds of medical unfitness – there being no medical records before me or available to document such.

4.      During his service in the CMF, there is the evidence provided by Mr Adams and limited army medical records that indicate that he had no lower limb disabilities or impairments at the time of his enlistment in 1971, but that during his recruit training, annual camp and weekend activities, he did episodically suffer from pain and swelling in both ankles, requiring referral for medical attention and reassignment to less physical activities.  I also observe that Mr Adams stated in his letter of 3 December 2007 that he had to resign from his Lidcombe work activity because of his inability to stand for a full shift, the resignation occurring after completion of the recent training course in February 1971.  It is noted that Mr Adams commenced with the Post Master General’s Department on 18 March 1971 (T17).

5.      After his discharge in June 1971, Mr Adams records having sought assistance from the Repatriation Commission in York Street, but no assistance was forthcoming.

6.      Mr Adams records that after leaving the army in June 1971, he worked in the following activities:

1971 – 1981Australian Telecommunications Commission – technical and administrative duties

1981 – 1982  NUS International – cost analysis

1982 – 1992  Self-employed bailee taxi driver

1984 – 1995Concurrent with work as taxi driver, worked as a casual security operative

1995 - Qualified for disability support pension, and thereafter has worked in a variety of temporary short-term supervising activities

7.      Mr Adams detailed that in 1975 he had experienced difficulty with walking up and down stairs and with prolonged standing.  Further, Mr Adams indicated that because of increasing back discomfort he was unable to continue with 12 hour taxi shifts – this leading to discontinuance in 1995.

8.      Mr Adams also referred to an assessment made by Dr Vote, an orthopaedic surgeon, in 1991, where, following a motor vehicle accident, Dr Vote drew to Mr Adams’ attention various ankle, knee and foot problems, which, Mr Adams states, Dr Vote claimed to have originated in 1971.  Reference was also made to a fracture of the left ankle, evidence from about the same period.

9.      An undated letter from Centrelink to Mr Adams records that Mr Adams was granted a disability pension in 1995 with an impairment rating of 20 per cent – with the rating being derived from conditions involving neck and lower back pain, heel and knee pain and labile hypertension.

10.     In April 2000, Dr Kirsh, an orthopaedic surgeon, reported that Mr Adams experienced:

·Pain and stiffness at times in his knee;

·Back problems since an accident when driving a taxi;

·Non-tender cervical spondylosis and lumbar spondylosis revealed by x-rays;

·Limited movement in both ankles with  x-rays demonstrating mild arthritic changes  

·Tenderness over both calcaneal tuberosities consistent with a diagnosis of plantar fascitis.

11.     Mr Adams was assessed by Dr Vecchio, a consultant rheumatologist.  In his report dated 4 April 2008, Dr Vecchio noted that the medical documentation relating to the injury sustained by Mr Adams during his army training in 1971 is more likened to soft tissue sprains than bony injury and that Mr Adams was currently suffering from bilateral osteoarthritis.  Dr Vecchio commented that there was no evidence within the medical records to imply that there had been sufficient joint cartilage damage to explain the changes currently established.

12.     Mr Adams lodged a claim dated 4 October 2007 in which he detailed injuries as osteoarthritis to both ankles, which he considered arose from activities undertaken in his CMF service between January 1971 and June 1971.  Such activities included an injury to his ankles when marching around at Gan Gan camp in January 1971, injury to both ankles when walking in the bush near Raymond Terrace in April 1971, and injury to both ankles during bayonet practice at the Anzac Range in May 1971.

13.     On 21 January 2008, the Military Rehabilitation and Compensation Commission (“MRCC”) disallowed the claim and, in so doing, noted that the Commonwealth’s position had been prejudiced by the late lodgement of his claim.

14.     On 18 June 2008, in a reconsideration determination, the MRCC varied the earlier determination, and in so doing, while affirming the earlier determination in relation to the osteoarthritis of both ankles, determined that liability is accepted in respect of bilateral ankle strains.

ISSUES

15.     The issues for me to determine in this matter relate to a preliminary matter, namely:

(a)  Whether Mr Adams satisfied or is deemed to satisfy section 53(3) of the Safety Rehabilitation and Compensation Act 1988 (SRC Act)?; and

(b)  Whether Mr Adams, pursuant to section 124(2)(b) of the SRC Act, is not entitled to payment of compensation under the predecessor to the SRC Act? This involves a consideration of section 16 of the Commonwealth Employees’ Compensation Act 1930 (“the 1930 Act”)?

Consideration and Findings

16.     In preliminary comment, I note the scarcity and absence of relevant military, general and medical records in relation to Mr Adams’ period of part-time military service between 21 January 1971 and 2 June 1971.  In particular, I point to the absence of any military medical record that determines that Mr Adams had been the subject of a medical board, which determined him to be medically unfit for nominated reasons.  Further, I note no notation of such a reason for discharge in Mr Adams’ record of service file.

17.     In addressing the medical issues during his service, I note Mr Adams’ account of his experiences. I note that Mr Adams was found to have no lower limb abnormalities at the medical board examination on enlistment which was conducted by Colonel Grace.  I do find it surprising that Lieutenant Searle was the signatory as the orderly NCO of the AAF-A46 document dated 6 March 1971.  Nevertheless, I am satisfied that there is sufficient material before me to suggest that Mr Adams suffered ligamentous strain/swelling to both ankles during his period of military service.

18.     In turning my attention to the issue of when Mr Adams became aware that he was suffering from osteoarthritis of both ankles, I would note that while he may have had difficulties climbing up and down stairs from 1975 onwards – such symptomatology may have arisen from either his back condition (spondylosis) and/or from his painful knees  –  the material before me indicates that Mr Adams was aware of the degenerative changes and osteoarthritis in his ankle joints as a consequence of his consultation with Dr Vote, in the early 1990s, albeit that such consultation was in relation to an insurance assessment following a motor vehicle accident.  I note that in 1995 Mr Adams was successful in qualifying for disability support pension and that heel problems were considered in that assessment.  In April 2000, I note that Dr Kirsh reported to Mr Adams’ general practitioner that Mr Adams was suffering from mild arthritic changes in both ankles.  Such a diagnosis was confirmed by Dr Vecchio in April 2008.

19.     Upon consideration of such material, I am satisfied on the balance of probabilities that Mr Adams was made aware of his ankle problems in the early 1990s and on the possible relationship to his earlier life activities.  I would also find that by April 2000, the evidence before me clearly indicates that Mr Adams had been informed of the osteoarthritic condition existing in both of his ankles, a condition which he clearly has and about which there is no contention.

20.     In addressing the issue of the time delay between Mr Adams having knowledge that he was suffering from a bilateral ankle condition (Dr Vote’s opinion in the early nineties, his disability support pension qualification in March 1995 and the opinion of Dr Kirsh in 2000) and his lodgement of his compensation claim in October 2007, there is a period of a maximum of 15 years and a minimum of seven years that has elapsed.

21.     Because of the time delay in notification of his injury, the Respondent contends that they have been prejudiced in their ability to deal with the claim and that Mr Adams did not notify the Respondent of his alleged injury in writing as soon as practicable after becoming aware of it.  There is no dispute in this matter that there was such a delay in notification and I so find.

22.     In considering the issue of prejudice, I note that the Respondent relies upon the following grounds:

(a)There is no contemporaneous medical evidence available to the Respondent;

(b)The Respondent is no longer able to obtain contemporaneous medical records due to the lapse of time;

(c)The Respondent has not been afforded an opportunity to properly investigate the circumstances of the nominated injury;

(d)The inadequacy of the medical evidence does not permit an adequate or proper consideration of the nominated conditions;

(e)The Respondent has not been afforded the opportunity to have Mr Adams examined over the intervening years;

(f)The Respondent is unable to establish any degree of any contribution to Mr Adams’ osteoarthritis from other causes, including prior Finnish military service, employment subsequent to June 1971, other non-work injuries or any underlying predisposition to degenerative changes.

23.     In justification of their contention that they have been prejudiced, the Respondent relies upon the following:

·An affidavit by Mr Ontong dated 4 March 2009 in which he nominates the following issues:

i.    An inability to properly investigate the circumstances surrounding events during his period of service;

ii.    An inability to obtain the clinical records of Dr Vote because of his retirement from practice;

iii.    An inability to verify Mr Adams’ medical history after his service and, in particular, for the period 1972 to 2005, as enquiries of nominated general practitioners have been frustrated by their retirement from clinical practice, or because of prolonged non-attendance at the practice, records for Mr Adams are no longer maintained;

iv.    That the osteoarthritis conditions of both ankles may have arisen from a constitutional degenerative process, non-work related activities, or from employment in the Finnish Army with investigation of such issues severely impaired by the passage of time and the limited records available.

24.     In addressing the issue of prejudice, I recognise that osteoarthritis of both ankles can arise as a consequence of a degenerative ageing process of constitutional origin and/or traumatic injury involving the affected joints (Dr Vecchio’s report).  I also recognise that the army general and medical records presented in this matter are deficient in quantity and content as earlier indicated and that only that authority can be held responsible for such deficiency.  I observe that by the very nature of the condition of osteoarthritis, namely, insidious onset and slow progression, adequate clinical documentation is essential to establish time of clinical onset, likely causes of the condition, activities/incidents which may cause aggravation and progress of the condition.  In this matter, I observe that the Respondent has access only to limited clinical documentation created during Mr Adams’ period of part-time military service.  Further, the Respondent has limited, if any, ability to seek further clarification of the injuries upon which Mr Adams relies by way of making enquiry on those involved at a time some 35 or more years ago.  Likewise, I observe that the Respondent, despite much endeavour, has been unable to obtain, let alone clarify, matters as to what health issues/injuries Mr Adams may have experienced since 1971, and even before when serving in the Finnish military.  Similarly, I observe that the Respondent, again by virtue of time, has been unable to assess the clinical history of Mr Adams’ ankle condition as assessed by treating medical practitioners over the period 1971 to 2004, simply because, despite any attempt to do so, such clinical documentation has not been forthcoming.

25.     In such circumstances as I have outlined, I am satisfied that the Respondent is prejudiced in this matter and for the very reason that the elapsed time period of 15 or more years between Mr Adams having knowledge of his condition and making written notification has created circumstances where the Respondent is restricted in undertaking a proper investigation and examination of the relied upon events during service, the onset and cause of the condition, and other causative/contributing factors of and to the condition.  I would further comment that while the osteoarthritic process has an insidious onset, the delay period of 15 or more years is very much material in this matter in permitting the Respondent to enquire, investigate and assess matters relevant to causation, contribution and aggravation.

26.     I note that section 53(1) provides the necessity, if the Act is to apply, for a claimant to give notice of the injury in writing as soon as practicable after the claimant becomes aware of the injury.  In this matter, Mr Adams gave notice of his injury by way of his claim for compensation dated 4 October 2007.  This, I have found, was some 15 or more years after he became aware of his injury, namely, osteoarthritis of both ankles, and was clearly not as soon as practicable.

27.     I further note that section 53(3) of the Act provides for some amelioration of the strict notice provisions in that section 53(3)(c) of the Act states:

(c) the relevant authority would not, by reason of the failure, be prejudiced if the notice was treated as a sufficient notice, or the failure resulted from death, or absence from Australia of a person, from ignorance, from a mistake or from any other reasonable cause;

the notice shall be taken to have been given under this section.

28.     Examination of my earlier findings in relation to prejudice and time delay in notification allow me to further conclude that consideration under the deemed notice provision is not available in this matter and I so find.

29.     In addressing the cause of the failure to give notice as soon as practicable, I observe that the issues of death and absence from Australia are not relevant issues in this matter.  I note that Mr Adams stated in an email of 25 March 2009 that “I only found the compensation angle when I applied for the Australian Defence Medal in 2006”.  I note that Mr Adams made similar observations during his oral testimony.

30.     While I am mindful that Mr Adams states that he was orally advised in June/July 1971 by the Repatriation Commission that he was not entitled to any assistance in relation to his recently completed service, his written reason for not notifying clearly arose from his ignorance of his rights/entitlements to compensation.  I would further comment that there is no suggestion of Mr Adams making a mistake, or evidence suggesting the delay arose from any other reasonable cause.

31.     In the light of my findings that the reason for the failure to give notice as soon as practicable after he became aware of his injury was due to ignorance arising from an absence of knowledge, I conclude that the notice shall be taken to have been given under this section.  In such circumstances, Mr Adams’ claim for compensation can be progressed under the SRC Act.

32.     Section 124 of the SRC Act provides at subsection (2):

(2)A person is not entitled to compensation under the 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 …

33.     I would observe that Mr Adams relies on injuries sustained during his military service between 21 January 1971 and 2 June 1971.  I would further note that the commencement date for the 1971 Act was 1 September 1971.  In such circumstances, I conclude that for Mr Adams to be successful in his claim under the SRC Act, compensation is or would have been payable under the 1930 Act.

34. Section 16(1) of the Commonwealth Employees’ Compensation Act 1930 provides for notification of the accident as soon as practicable after it has happened and for a claim to be lodged within six months of the occurrence of the accident, and in the absence thereof, a claim for compensation shall not be admitted, 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, 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.

35.     In addressing the issues raised by section 16, I would repeat that a finding of prejudice, which I have concluded exists, does prevent consideration of a notice that has want of any defect or inaccuracy.  Further, I would again conclude that the reason for Mr Adams’ failure was occasioned by his ignorance, as opposed to mistake.  In so finding, I rely on Mr Adams’ evidence as to the reason for his delay in giving notice.

36.     I am mindful that the distinction between “ignorance” and “mistake” was significant under the 1930 Act, as “ignorance” was not mentioned and that it was not included in “mistake” and did not provide excuse for a late claim (Telstra Corporation Limited v Roycroft (1997) 77 FCR 358; 47 ALD 671 considered and followed).

37.     In such circumstances, I conclude that Mr Adams’ claim for compensation pursuant to the 1930 Act cannot be admitted, as he has failed to give notice as soon as practicable after the the accident occurring and also failed to lodge a claim for compensation within six months of the occurrence of the accident.  Such a conclusion is a consequence of the finding that the failure to so lodge was occasioned by “ignorance”, with such circumstances not being encompassed within the terms of mistake, absence from Australia or other reasonable cause.

38.     In summary, I conclude that Mr Adams is not entitled to compensation under the SRC Act as compensation is not payable in respect of an injury, loss or damage under the 1930 Act.

Decision

39.     The decision under review is affirmed.

I certify that the thirty-nine (39) preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member.

Signed:         .....................................[sgd]..........................................
  Associate

Date of Hearing  21 August 2009
Date of Decision  15 October 2009
Appearance for the Applicant        Self-represented 
Counsel for the Respondent          Mr B Kelly 
Solicitor for the Respondent           Ms S Pham, DibbsBarker