SAMUEL McCUTCHEON and MILITARY REHABILIATION AND COMPENSATION COMMISSION

[2010] AATA 491

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 491

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/0785

VETERANS’ APPEALS DIVISION		)
Re		SAMUEL McCUTCHEON

Applicant

And MILITARY REHABILIATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Dr K S Levy RFD, Senior Member

Date2 July 2010

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

..................[Sgd]............................

Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Benefits and entitlements – Prejudice by lack of notice of injury – Lack of notice occasioned by mistake, absence from Australia, or other reasonable cause – Applicant’s failure to make claim within time limit due to mistake, absence from Australia, or other reasonable cause – Decision under review affirmed.

Commonwealth Employees Compensation Act 1930 (Cth) s 16

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 124

Jones v Dunkel (1959) 101 CLR 298

Re Harbutt and Department of Defence (1998) 51 ALD 159

Telstra Corporation v Roycroft (1997) 47 ALD 671

REASONS FOR DECISION

2 July 2010 Dr K S Levy RFD, Senior Member           

INTRODUCTION

1.      Samuel McCutcheon applied for recognition of a condition of ingrown toenails.  The condition is said to have developed during his army service from 1955 to 1960, which the applicant attributes to ill fitting army boots. 

2.      Mr McCutcheon applied on 21 May 2009 for recognition of hearing loss, ingrown toenails and stress.  In respect of the claim for “ingrown toenails”, the Department of Veterans’ Affairs (as a delegate of the Military Rehabilitation and Compensation Commission) determined that the claim was disallowed on the basis that there was no service record to verify his claim.  It was also determined that the Commonwealth would be prejudiced after such a long period unless it could be shown that the late claim was made because of mistake, absence from Australia or other reasonable cause.  This is provided for in s 16 of the Commonwealth Employees Compensation Act 1930 (Cth) (“the Act”). 

3.      That decision was reconsidered by a Review Officer as a Delegate of the Military Rehabilitation and Compensation Commission and was affirmed.  The applicant was advised of that decision on 12 January 2010.  The applicant now appeals that decision to this Tribunal.

ISSUES

4.      The issues to be determined by the Tribunal are:

(1)      Has the Commonwealth been prejudiced by the lack of notice of the applicant’s injury for the purposes of s 16 of the Act?

(2)      Was the lack of notice to the Commonwealth of the applicant’s injury occasioned by mistake, absence from Australia or other reasonable cause within the meaning of s 16 of the Act? Or,

(3)      Was the applicant’s failure to make a claim within six months of the injury due to mistake, absence from Australia or other reasonable cause within s 16 of the Act?

EVIDENCE

5.      Mr McCutcheon’s service was in the Royal Australian Infantry where he served for five years - two years as a national serviceman and a subsequent three year period of service.  There is no evidence of operational service.  The applicant provided a statement to this Tribunal on 20 May 2010.  That statement read with his original claim of 21 May 2009 refers to the lack of documentation in his medical records.  Mr Walsh, Advocate for Mr McCutcheon explained that he himself had served in the Royal Australian Army Medical Corps and had been decorated for his service in South Vietnam and is familiar with the Army Medical system.  He said a person enlisted in the army had to have a medical examination every 12 months but that only his enlistment medical documents were found.  That, he says, points to an incomplete record.  It was submitted that it is unlikely the records could be complete as apart from enlistment medical documentation; there is only evidence of one sick report for a sore throat in his five years of service. 

6.      There is an undated report of Dr Carl Rubis certifying that Mr McCutcheon has “onychogryphosis – pincer nail deformity of both his first toenails.  Fungal scrapings have been negative and there is a high probability that his condition is secondary to footwear damage in earlier life”.

7.      There is also a report by Dr Selim Ozluer, dermatologist, dated 20 April 2010 where he said “there is some pincer nail deformity”.  Dr Ozluer concluded that Mr McCutcheon’s claim that his condition is due to ill fitting boots during his army service is consistent with his present condition.

CONISIDERATION

8.      The relevant law which governs this appeal is contained in s 16 of the Commonwealth Employees Compensation Act 1930 (Cth).  While that Act was the governing law in the period 1955 to 1960 when Mr McCutcheon undertook army service, it has now been repealed and the current statute governing this area is the Safety Rehabilitation and Compensation Act 1988 (Cth). That Act allows a claim of this nature to continue to be considered under s 16 of the 1930 Act by virtue of the saving provision of s 124 of the Safety Rehabilitation and Compensation Act 1988 (Cth). 

9.      The relevant statutory provisions  are as follows:

SECT 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 6 months from the occurrence of the accident; or

(b)in the case of death – within 6 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, 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. 

SECT 16(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.

10.     Section 16(3) also imposes requirements as to notice.  It is clear some flexibility is to be tolerated in that regard. 

11.     In relation to the statutory requirements of s 16(1) and (2), Mr McCutcheon did not make application for almost half a century.  His advocate said that young soldiers were often not aware of their rights.  The Tribunal was informed that Mr McCutcheon was speaking to Mr Walsh socially and when Mr Walsh described his role and how he had assisted a former serviceman, Mr McCutcheon then apparently realised he also had grounds to make a claim. 

12.     The Tribunal inquired as to the requirement of infantry section commanders to carry out foot inspections and was told by the applicant that this often did not occur in practice.  It was noted that the applicant did have a “sick report” sheet on his medical records for a sore throat.  It is possible therefore that if the applicant had a difficulty with ingrown toenails when he was in the army he would have made a report to his Regimental Aid Post in a similar manner to the complaint of a sore throat.  If that did occur, one would expect to find a record of it in his medical records.  It is of course possible that the medical records are defective and are not a full account of his service medical history.

13.     All of the evidence presented was cursory.  Apart from the documentary evidence which was accepted by both parties as inadequate, no witnesses were brought to support Mr McCutcheon’s claims.  Clearly, after 50 years, direct witnesses would be difficult to find.  Nevertheless, medical reports were produced by Dr Carl Rubis and Dr Selim Ozluer and neither of those doctors was called to give evidence either as evidence in chief or cross examination.  The weight of the available evidence is therefore minimised and may give rise to an adverse inference against Mr McCutcheon (Jones v Dunkel 1959 101 CLR 298 at 330). However, I do not draw an adverse inference on that basis.

14.     The Tribunal was told that Mr McCutcheon worked in the building industry for most of his working life after being discharged from the army.  I understand that Mr McCutcheon ran his own business but that his sons were available to assist him in his business (at least as adults).  For that period at least, Mr McCutcheon did not necessarily need to do heavy work which would have aggravated his feet.  No evidence was presented to support his contentions for the period after his army service and before his sons assisted him in the building industry.

15.     Of course, his presentation of evidence did not have to establish whether his substantive case had merits but it was only for the purpose of the Tribunal being able to determine the legal questions set out in paragraph 4.

16.     In relation to question 1, I take account of all of the evidence available and I find that the Commonwealth would be prejudiced by the late notice almost 50 years after Mr McCutcheon ceased service with the Australian Army.

17.     In relation to question 2, the lack of notice is not concerned with absence from Australia.  But also, it is not due to a mistake.  Mr McCutcheon says it is due to ignorance of his rights.  That also is not a factor which provides any support either as ‘a mistake’ or as ‘any other reasonable cause’.  (Telstra Corporation v Roycroft (1997) 47 ALD 671). I find therefore that this aspect of s 16 is also not satisfied.

18.     In relation to question 3, the applicant says that his failure to make a claim is due to ignorance to his entitlements.  Even as a national serviceman, such ignorance has been held to be an insufficient explanation for a notice provided 40 years after ceasing service (Re Harbutt and Department of Defence (1998) 51 ALD 159). Mr McCutcheon stayed in the Australian Regular Army for a further three years as a member of the Royal Australian Infantry after he completed his period of national service. It is less likely that he would not have had some concept of his rights after that length of service. In the circumstances, I find that this question is also not satisfied.

19.     I must therefore affirm the decision under review.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy RFD, Senior Member

Signed: ...........................[Sgd]..................................................
  Kate Slack, Research Associate

Date/s of Hearing  3 June 2010
Date of Decision  2 July 2010
For the Applicant  Mr Ray Walsh, veterans' advocate
Solicitor for the Respondent     Mr James McIntyre, DLA Phillips Fox