King and Military Rehabilitation and Compensation Commission
[2012] AATA 808
•19 November 2012
[2012] AATA 808
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/1337
Re
KEITH KING
APPLICANT
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 19 November 2012 Place Brisbane The Tribunal affirms the decision under review.
........................[Sgd]................................................
Mr R G Kenny, Senior Member
CATCHWORDS
COMPENSATION – Injury occurring prior to commencement of Safety, Rehabilitation and Compensation Act 1988 (Cth) – Transitional provisions – Commonwealth Employees' Compensation Act 1930 (Cth) – Notice of accident – Notice not given as soon as practicable – Commonwealth prejudiced by want of notice – Absence of operative mistake or reasonable cause for lateness of notice and claim – Decision under review affirmed
LEGISLATION
Commonwealth Employees' Compensation Act 1930 (Cth) ss 9, 16
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 53, 124
CASES
Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534
Siemsen and Comcare [1999] AATA 871
Telstra Corporation v Roycroft (1997) 77 FCR 358REASONS FOR DECISION
Mr R G Kenny, Senior Member
19 November 2012
BACKGROUND
On 15 February 2010, Keith King lodged a “Claim for Rehabilitation and Compensation” under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the 1988 Act”) for injuries which he alleged were related to his national service in the Australian Army (“Army”) from 10 November 1970 until 9 May 1972. His claim was for “left shoulder/arm”. On 21 February 2011, the Military Rehabilitation and Compensation Commission (“the MRCC”) determined that it was unable to accept liability for those conditions. In a reviewable decision, dated 8 March 2012, the MRCC affirmed the determination.
ISSUES AND LEGISLATION
The 1988 Act provides for compensation to be paid by the Commonwealth in relation to work-related injuries where the injury occurred after the commencement date of the 1988 Act on 1 December 1988. The 1988 Act contains transitional provisions which pertain to injuries that occurred prior to that date.[1] It is not in dispute that the legislation relevant to Mr King’s claim is the Commonwealth Employees’ Compensation Act 1930 (Cth) (“the 1930 Act”). For liability to arise under the 1930 Act, the injury must have arisen out of or occurred in the course of employment with the Commonwealth.[2] Time-frames for giving notice of an incident and for making a claim to be admitted are set down in s 16(1) of the 1930 Act which, in so far as relevant, reads:
[1] See s 124 of the 1988 Act.
[2] See s 9(1) of the Act.
(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 incident; or
…
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.
(2) Notice in respect of any injury to which this Act applies shall contain the name and address of the person injured, and a statement in ordinary language of the cause of the injury and the date at which the accident happened.
The issue for determination is whether Mr King’s claim should be admitted under s 16 of the 1930 Act. That is a preliminary issue and the merits of Mr King’s claim are not before the Tribunal.
EVIDENCE
Mr King
Mr King served in the Australian Army from 10 November 1970 until 9 May 1972. His evidence was that he was injured, on 26 November 1970, during a physical training exercise as part of his initial training. He slipped from a horizontal rope apparatus and dislocated his left shoulder. He reported the incident to his supervisor, Sergeant Farmer, but was not aware of any written record completed by him at the time. He then attended the Regimental Aid Post (RAP) from where he was transported to the Wagga Base Hospital. There, a doctor manipulated his shoulder back into position and his arm was placed in a sling for 7 days during which time he was on light duties. Mr King denied that there was any uncertainty about the diagnosis of dislocation. He returned to his training program and successfully completed the course. He continued to receive treatment for his shoulder during and after his service with acupuncture, massage and medication in the form of anti-inflammatories and pain killers. Dr Karen Flegg, Mr King’s general practitioner from 1978, referred him to surgeon Dr Mark Byrne who carried out a shoulder reconstruction in 1994. Mr King continues to experience pain in his shoulder. Mr King denied any history of shoulder dislocation prior to his Army service and also denied that he was on leave when he injured his shoulder.
After leaving the Army, Mr King worked as a truck driver. Since 2000, he has been a bus driver with the Brisbane City Council (BCC) and, in that role, has been involved in three incidents of trauma: being attacked and thrown to the floor by a “mugger”; being assaulted through the window by another bus driver; and being hit by a bicycle after alighting from his bus to assist an elderly passenger. He described injuries to his neck, right shoulder and lower limbs on those occasions but not his left shoulder. Though he denied doing so, he eventually agreed that he had completed a compensation claim form for the first of those incidents but said that it was in order to recover medical costs only. He denied that he had ever claimed compensation for workplace injuries at any other time.
On Mr King’s behalf, his mother contacted personnel at the Returned and Services League (“RSL”) where she worked and enquired about the prospects of Mr King getting compensation for his shoulder condition. Mr King was unclear as to the timing of these enquiries but said that it was both before and after he underwent surgery to the shoulder in 1994. Mr King said that in the late 1990s or early 2000s, he made that enquiry of the RSL and also to the association for national servicemen. On each of these occasions he was advised that no compensation was payable to him because he had not rendered overseas service with the Army. He denied that he had ever been advised of a 6 month time limit for making a claim and was unaware that he could do so until he spoke with an RSL advocate in 2009. Even that advocate had not told him of any time limit which applied to the making of a claim for compensation. Mr King said that if he had known of the right to claim he would have done so and that he would have done so within the relevant time limits if he had known about them. He agreed that he was ignorant of his right to make a claim until 2009.
At the time of completing his claim form, Mr King was unable to recall the name of the supervisor to whom he reported the incident. He had recalled that his name was Sgt Farmer after searching his Army records and notified the respondent of that on 30 October 2012.[3]
[3] See Exhibit 2.
On 26 January 2011, Mr King completed a statement in which he described the mugging incident on the bus in 2005.[4] He wrote that there was no injury, other than bruising, to his shoulder at that time. He also referred to the incident in 2007 while driving a bus and described a knee injury but no injury to his left shoulder at that time.
[4] See Exhibit 1, T-document 29, p. 204.
Ashley Burgess
Mr Burgess is a lawyer employed by the respondent’s solicitors, Sparke Helmore. He contacted Mr King’s treating doctors and past employers to clarify aspects of Mr King’s claim. He was unable to locate contact details for Dr Malcolm Mahunlah who treated Mr King immediately after his Army discharge. He obtained material from Dr Flegg but was unable to obtain material from Dr Byrne who retired in 2008 and has since passed away. Mr Burgess spoke with Dr Byrnes’ former secretary whose computer searches of post 2000 files were unable to locate any reference to Mr King. He arranged for contact with Dr Byrnes’ widow in relation to earlier records but these could not be accessed. Mr Burgess also arranged for documents to be obtained from WorkCover Queensland and from Mr King’s employer, the BCC. He also called for a search of Army records to be conducted for details of Sgt Farmer. In a response, dated 5 November 2012, Defence Single Access Mechanism advised that records were unable to confirm that Sgt Farmer was Mr King’s supervisor.
Medical evidence
A report was completed by Dr David Walters, orthopaedic surgeon, on 25 May 2010.[5] He referred to the 1970 incident concerning Mr King’s left shoulder. In his summary, Dr Walters wrote:
It is difficult to give a definitive diagnosis in Mr King’s case due to a lack of clinical information from the time of the injury/surgery. The history he gives about “something coming out of place”, and “something being reduced” at Wagga would be consistent with an anterior dislocation of the shoulder. The fact however that he has not had another dislocation is against this diagnosis. The fact that Dr Mark Byrne operated on his acromioclavicular joint would seem to indicate that the pathology was in fact in that joint, rather than the glenohumeral (“shoulder”) joint. The notes are very vague regarding this information and are not of great clinical assistance. We do not know whether any operative procedure was performed on the rotator cuff as well at the time of his surgery. It would be advantageous to elucidate this and it may be that Dr Mark Byrne could still resurrect his old surgical records and give some details of the operative findings. It may be that Mr King’s longstanding general practitioner has some records of what was done to his shoulder 15 years ago. There is no doubt that he had some significant injury to his left shoulder …
Dr Walter expressed his willingness to provide a supplementary statement on diagnoses if any additional clinical information came to hand.
[5] See Exhibit 1, T-document 16, pp. 63-73.
A letter from Dr Flegg, dated 30 October 2009, noted that Mr King had a left shoulder reconstruction by Dr Mark Byrne in approximately 1994. She advised that Dr Byrne had since retired.[6] Dr Flegg’s clinical notes refer to Mr King’s left shoulder on 29 June 2005[7] and 19 May 2007.[8] The first of those entries reads:
3 hours ago was mugged on the bus, dived on left shoulder, pulled left shoulder back, had no change for ticket, almost smashed bus, man wasn’t caught by police, tender muscle lateral and anterior to left shoulder, cert for 3 days, some pain down arm, mobic.
The second of the entries records that a “pushbike hit his left shoulder”.
[6] See Exhibit 1, T-document 13, p. 46.
[7] See Exhibit 1, T-document 23, p. 136.
[8] See Exhibit 1, T-document 23, p. 173.
An MRI was performed on Mr King’s left shoulder on 28 July 2009.[9] It described “mild tendinopathy of the rotator cuff” and also a “recent injury”.
[9] See Exhibit 1, T-document 10, p. 43.
Service and other records
A Discharge History Questionnaire, dated 28 March 1972,[10] described Mr King as having an “undiagnosed shoulder injury” as well as “aviational stress” and “bad indigestion”. That document shows that Mr King responded “yes” to the following:
Have you ever received, applied for or do you intend to apply for a pension or compensation for an existing or prior disability?
[10] See Exhibit 1, T-document 6, p. 28.
Several service Attendance and Treatment cards were in evidence. An entry on 26 November 1970 noted that Mr King was “on leave” when he “felt something tear in L[eft] scapular region” and “then felt something clunk in the left shoulder”. The examination noted “normal shoulder contours”, “tenderness”, “impaired L[eft] shoulder movements” and “? L[eft] shoulder dislocation”.[11] An entry, dated 17 December 1970, noted that Mr King was doing full training at that time except for “rope-climbing and insteps”. Again, a clunking sound is noted as well as pain behind the left scapula, shoulder and lateral aspect of his left arm. The record noted residual soreness at night which was generally gone by morning. “Improved movement and power left shoulder” is noted as well as “some improvement in adduction” with “other movements good”.[12]
[11] See Exhibit 1, T-document 6, p. 29.
[12] See Exhibit 1, T-document 6, p. 29-30.
A Training Record, dated 21 January 1971, noted that Mr King completed his basic training with an “above average” standard. It described him as a “good keen soldier who is keen to do well in all aspects of army life”.[13] A Psychological Assessment, dated 9 December 1970, recorded that Mr King was “[s]uitable to cope with training to a skilled level”.[14]
[13] See Exhibit 5, p. 83.
[14] See Exhibit 5, p. 94.
A copy of a Compensation Application, dated 29 June 2005 was in evidence.[15] It refers to an attack on Mr King by a bus passenger on 29 June 2005 while he was employed as a bus driver by the BCC. The claimed injury is listed as strain/sprain to the shoulder. An accompanying medical certificate notes that it was Mr King’s left shoulder which was injured at that time. The claim form includes a declaration by Mr King that he had not previously suffered a similar injury. Also in evidence was a series of documents which comprised compensation claims by Mr King in 1974 for dermatitis; 1976 for right shoulder; 1978 for right foot; 1980 for left foot; 2001 for eyes, nose and throat; 2002 for contaminated sugar; 2004 for left elbow; 2006 for back; 2007 for left wrist and right knee; and 2010 for right knee strain.[16]
[15] See Exhibit 10.
[16] See Exhibit 11
A series of questions was sent by the respondent in a letter, dated 29 October 2012,[17] to Ms Helene Smith, who represents Mr King. She was requested to obtain Mr King’s responses to certain questions in order to provide further detail about Mr King’s injury and claim history. Mr King dictated his responses to his wife who typed them on his behalf.[18] One of his responses was that his contacts with the RSL about making a claim were in 2005 and 2007.
[17] See Exhibit 12.
[18] See Exhibit 2.
An Outpatient Reference Sheet, which appears to have been completed at Wagga Base Hospital on the day of the incident, included a referral for X-ray and consultation with Dr Peter Dewey, orthopaedic surgeon. It described the diagnosis as “? dislocation” and noted a vague previous history of dislocation in the left shoulder.[19] Dr Dewey completed a report on 26 November 1970.[20] Therein, Dr Dewey wrote that Mr King sustained a shoulder injury and felt “severe pain” when he was “pulling himself up on his arms on the bars”. X-rays taken at the time proved “normal” and Dr Dewey was unsure of the diagnosis but opined that there may have been a “minimal subluxation of the shoulder which reduced spontaneously and which has bruised his brachial plexus”. Dr Dewey saw Mr King on the same day as the incident and described his shoulder as normal at that time but immobilised his arm in a sling and suggested that he have intensive physiotherapy. In his second report, dated 22 December 1970, he diagnosed “minimal subluxation of the shoulder”.[21]
[19] See Exhibit 1, T-document 6, p. 33.
[20] See Exhibit 1, T-document 6, p. 34.
[21] See Exhibit 1, T-document 6, p. 32.
SUBMISSIONS
Mr Hawker, for the respondent, submitted that Mr King’s claim should not be admitted because of the terms of s 16(1) of the 1930 Act. This was on the basis that notice of Mr King’s accident had not been given by him as required under s 16(2) of the 1930 Act and that his claim was not made within the time-frame in the provision. He submitted that the provisos in s 16(1) of the 1930 Act[22] were not satisfied in this matter because the respondent was prejudiced by the lateness of notice. He also submitted that, in any event, such lateness of notice and of a claim were based on Mr King’s ignorance of his rights, a factor not recognised as being within the proviso to s 16(1) of the 1930 Act.
[22] See ss 16(1)(i) and (ii).
Ms Smith submitted that Mr King had not been advised of his right to claim compensation or that any such claim was subject to a time-limit. She submitted that Mr King had advised his supervisor of the accident on the training ropes and had also reported the matter to the RAP personnel. She submitted that Mr King was ignorant of his claim rights until 2009 when he spoke with an RSL advocate.
CONSIDERATION
For Mr King’s claim to be entertained under s 16 of the 1930 Act, notice of an accident must have been given as soon as practicable after it happened and before his voluntary discharge from the Army. Further, his claim for compensation must have been made within 6 months of the occurrence of the accident. Those requirements are subject to the provisos in the section.
Before considering the application of s 16 of the 1930 Act, I note that there were significant inconsistences in Mr King’s evidence. Chief among these were his denials about making compensation claims. Mr King was involved in an incident with a “mugger” on a bus in 2005. He denied that this resulted in an injury to his left shoulder and that he had made a claim for compensation for his left shoulder at that time. After being shown a copy of his claim form in relation to the 2005 injury, he conceded, with apparent reluctance, that he had made that claim but said that he had claimed for medical costs only. The claim related specifically to a shoulder and the accompanying medical certificate nominated the left shoulder. Dr Flegg’s clinical note of 29 June 2005 confirmed that he consulted her in relation to his left shoulder on that day. In the claim form, Mr King advised that he had not previously suffered any similar injury or condition. The assertions in Mr King’s evidence about not injuring his left shoulder in that incident and about not lodging a compensation claim were untrue. Further, based on his evidence about the 1970 incident, his declaration in the claim form that he had not previously suffered a similar injury was also untrue.
Mr King, in his evidence, denied that he had made any other compensation claim against an employer. He was confronted with copies of 10 other compensation claim forms in 1974, 1976, 1978, 1980, 2001, 2002, 2004, 2006, 2007 and 2010, respectively. Again, he agreed, with apparent reluctance, that he had made those claims. Again, his denials concerning compensation claims were untrue.
Those untruthful assertions by Mr King tend to cast doubt over his credit as a witness of truth in relation to other inconsistencies in the evidence before me. These include his inability to identify “Sgt Farmer” until 2010; the references in his service medical reports to a previous history of dislocation; to the reference that he was on leave when his shoulder was injured; that, as recorded by Dr Dewey, the injury occurred while “on the bars”; that, as noted by Dr Flegg, he injured his shoulder in 2007 when struck by a bicycle; and that medical examiners during service expressed difficulty in diagnosing his shoulder problem.
NOTICE
Unlike later compensation legislation,[23] s 16(1) of the 1930 Act requires notice of the accident rather than a specific injury. However, in addition to the requirement that the notice be given as soon as practicable after the accident, the notice must set out the matters in s 16(2) of the 1930 Act. This requires particulars of the person to be included in the notice as well as particulars, in ordinary language, of the cause of the injury and the time when it happened. Accordingly, the focus of the notice requirements in s 16(1) of the 1930 Act is the injury which is alleged to have been caused in the accident as well as the accident itself.
[23] See s 53 of the 1988 Act.
In Siemsen and Comcare[24] (Siemsen), the Tribunal held that an entry in service medical records could constitute notice of an injury under the Act. In that case, the Tribunal found that the records disclosed the information required by s 16(2) of the 1930 Act.
[24] (1999) AATA 871 at [39].
Mr King’s RAP records in November and December 1970 include references to a form of shoulder injury but not to the incident which caused it. One reference is that he was “on leave” at the time. Dr Dewey, on 26 November 1970, described the injury as having occurred while Mr King was “pulling himself up on the bars”. That was not the evidence of Mr King. Dr Dewey was unable to enter a diagnosis for Mr King’s shoulder condition. In his second report, on 22 December 1970, he diagnosed “minimal subluxation of the shoulder” when “under stress at his PT”. Those entries do not provide a consistent description of the cause of Mr King’s injury or, indeed, the time when or place where it occurred. In this matter, unlike the situation in Siemsen, I am satisfied that the particulars in Mr King’s service medical records do not constitute notice as required under ss 16(1) and (2) of the 1930 Act. No other advices were provided to the respondent until Mr King’s claim form was lodged in 2010. Accordingly, I am satisfied that notice was not given by Mr King in accordance with s 16(1) of the 1930 Act.
The proviso in s 16 of the 1930 Act
28.The absence of appropriate notice by Mr King for the alleged “accident” and claimed condition, alone, does not preclude him from meeting the notice requirements under s 16(1) of the 1930 Act. His claim for those matters may still be admitted if the want of notice does not prejudice the respondent or if it was occasioned by mistake or other reasonable cause.[25]
[25] The “absence from Australia” factor does not arise in this matter.
Prejudice
In relation to the issue of prejudice to the respondent, I note the decision of the Tribunal in Re Tierney and Reserve Bank of Australia.[26] There, the following reference is made to the purpose of the notice requirement as it appears in s 53(1) of the 1988 Act, which is not materially different from the provision under consideration in the 1930 Act:
Section 53 is clearly intended to protect the Commonwealth and its instrumentalities from being placed in a situation where they are unable to disprove an employee’s assertion of an injury alleged to have occurred on some specific occasion in the course of the employee’s work or of a disease contracted because of some brief and transient situation. Some such provision is clearly needed to prevent abuse of the Act.
[26] (1988) 15 ALD 534 at 535.
In his initial report in November 1970, Dr Dewey advised that he was unable to diagnose the condition in Mr King’s shoulder. That is consistent with the entry “? diagnosis” in other records at the time. In his later report, he diagnosed “minimal subluxation of the shoulder”. However, the problem of diagnosis was clearly expressed in the report of Dr Walters after he reviewed Mr King’s records. He described the difficulty in giving a definitive diagnosis due to the lack of clinical information from the time of the injury. He referred to the procedure performed by Dr Byrne and queried the location of the pathology at that time and whether any operative procedure was performed on the rotator cuff. He also noted that Dr Byrne’s notes were very vague and not of great clinical assistance. While he considered that it would be advantageous to obtain further information from Dr Byrne, the evidence is that this is not available to the respondent to assist in its investigations of Mr King’s claim. Those difficulties are compounded by the evidence that Mr King has experienced at least two further injuries, in 2005 and 2007, to the left shoulder since his Army service. The MRI in 2009 also described a recent shoulder injury and that is unexplained.
The respondent was made aware of Mr King’s injury some 39 years after he alleged that it occurred. I accept Dr Walter’s analysis of the difficulties presented by Mr King’s service records to an investigation of Mr King’s claims which is heightened by the unavailability of Dr Byrne or his records in relation to surgery in 1994 as well as the subsequent injuries to Mr King’s left shoulder. I have also noted the difficulty in obtaining information about Sgt Farmer. The result is that the passage of time has denied to the respondent the opportunity to investigate matters in a timely manner and I am satisfied that it would be prejudiced if it were required to do so almost 39 years after the incidents of causation are alleged to have occurred. Reference is made below to other aspects of the proviso relating to mistake or other reasonable cause in relation to the giving of notice.
THE CLAIM
Mr King’s claim for his shoulder condition was made on 15 February 2010. This was some 39 years after the occurrence of the accident which he relied upon for the cause of his shoulder condition. His claim may still be considered if the failure to make the claim within the prescribed 6 months was occasioned by mistake or other reasonable cause.[27] I note that, under s 16(1) of the Act, issues of prejudice which arise in relation to the notice have no application in relation to the lateness of a claim.
[27] The “absence from Australia” factor does not arise in this matter.
MISTAKE OR OTHER REASONABLE CAUSE
These matters are relevant to both the notice and the claim. The Act distinguishes between ignorance and mistake with only the latter being of relevance to the proviso under s 16(1) of the 1930 Act. The distinction between the two concepts was referred to in Telstra Corporation v Roycroft[28] by North J who described the relevant authority as establishing the following propositions, at 364:
1. A person who is not aware of a right to claim compensation at all is not mistaken about the right, but ignorant of it: Roles v Pascall & Sons [1911] 1 KB 982.
2. A person who knows that he has a right to claim compensation for one sort of injury, but no idea whether or not he has a right to claim for another type of injury, is not mistaken as to his right to claim for the second type of injury, but is ignorant of it: Commonwealth of Australia v Connors (1989) 86 ALR 247.
3. A person who knows he has a right to claim compensation for one sort of injury, and wrongly believes that he has no right to claim for another type of injury, is mistaken as to the right to claim for the second type of injury: Stevenson v Metropolitan Meat Industry Commission (1936) 37 SR (NSW) 109.
4. It follows from these authorities that a person who knows he has a right to claim compensation for the particular injury and knows that the time for making the claim is limited, but wrongly believes he has more time to make a claim than the Act allows, is mistaken as to the time for making the claim.
[28] (1997) 77 FCR 358.
His Honour went on to point out that there was a thin line between mistake and ignorance, but said, at 367:
If a person acts on the basis of knowledge of the Act and that knowledge is wrong, or the facts upon which the person relies are wrong, then the person has made a mistake. If a person acts without any knowledge about the Act or an aspect of it, and consequently does not know whether or not it applies, then the person is ignorant.
A provision in Mr King’s “Discharge History Questionnaire” made reference to compensation issues and he completed the “yes” response to the question about compensation. However, I accept that this provided no guidance on the claim process and merely questioned whether he intended to make a compensation claim. In any event, by the time he completed that document, the 6 months within which the claim was to be made had already passed. It may be that, after receiving incorrect information from the RSL and the national servicemen’s organisation about his right to make a claim for compensation in the mid-1990s and thereafter until 2010, Mr King held a mistaken belief about his right to make a claim. However, that was not the case prior to receiving that incorrect information and in particular it was not the case in the 6 months following the accident. Ms Smith described Mr King as being ignorant of his claim rights and Mr King’s evidence was that, if he had known of his right to claim and the time limit in which to do so, he would have ensured that a claim was made in the appropriate time-frame. I am satisfied that Mr King was ignorant of his claim rights in the 6 months after the accident in which he was allegedly injured. His failure to make a claim within the 6 months of the accident was due, not to mistake, but to his ignorance during that 6 month period of his right to make a claim. I am also satisfied that he was ignorant of the notice requirements in the 1930 Act until he was advised of his right to make a claim in 2009.
No submission was made by Ms Smith concerning reasonable cause which operated during the 6 months after the accident so as to bring about the lateness of Mr King’s claim. Indeed, I am satisfied that there was no reasonable cause for giving notice of his shoulder injury or his non-lodgement of the claim before 2010.
DECISION
I am satisfied that the requirements under s 16(1) of the 1930 Act have not been met by Mr King in relation to his compensation claim for his shoulder condition. This means that his claim may not be admitted by the respondent. The decision under review is affirmed.
I certify that the preceding 37 (thirty- seven) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.
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Associate
Dated 19 November 2012
Date of hearing 12 November 2012 Advocate for the Applicant Ms Helena Smith Solicitors for the Respondent Mr Matthew Hawker (Sparke Helmore)
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