Armstrong and Military Rehabilitation and Compensation Commission

[2013] AATA 929

[2013] AATA 929 

Division

VETERANS' APPEALS DIVISION

File Numbers

2013/0840

2013/1031

2013/1037

Re

David Armstrong

APPLICANT

And

Military Rehabilitation and Compensation Commission

RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	20 December 2013
Place	Brisbane (heard in Cairns)

The decisions under review are affirmed.

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

Senior Member Bernard J McCabe

CATCHWORDS

VETERANS' AFFAIRS – Pensions and benefits – New injury not connected to service – Link between accepted injuries and requested assistance – Liability for travel costs – Limited expert medical opinion provided – Decisions under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 29, 39

REASONS FOR DECISION

Senior Member Bernard J McCabe

1. David Armstrong has made a number of claims against the Military Rehabilitation and Compensation Commission in respect of conditions he said are attributable to his employment in the Navy. The respondent accepted liability for some of those conditions under the provisions of the Safety, Rehabilitation and Compensation Act 1988, and it paid out compensation and other benefits over the years – but it also denied it is liable in respect of other conditions.

2. These proceedings arise out of three separate claims. In the first, No. 2013/0840, Mr Armstrong said the respondent is liable under s 14 of the Act for a fracture of the head of the femur of the left leg (ie, a hip condition). The respondent did not dispute the applicant has a hip condition but said the condition is the product of a road accident in China that is unconnected to the applicant’s employment in the Navy. The other claims arise out of:

   ·Mr Armstrong’s quest to obtain household services, attendant care and aids and appliances under s 29 of the Act,

   ·his request for the payment of travel expenses incurred in connection with a trip from his home to Cairns when he met a service provider for an assessment in August 2012; and

   ·his request for assistance under s 39 to meet the cost of maintaining and repairing his wheel chair.

3. The first claim – with respect to the hip condition – can be dealt with comparatively quickly. In 2010 the applicant was run over by a motorcycle in China, where he was living at the time. He was badly injured. He was ultimately repatriated to Australia for treatment. The medical experts said he had a fractured femur. The respondent says there is no doubt the fracture was caused by the impact of the collision in China. Mr Armstrong is not so sure: he said he had x-rays that were taken in China soon after the accident which show he did not have a fracture at that time. While Mr Armstrong did produce some x-rays, he did not provide any expert medical opinion to assist in their interpretation or explain their significance. Given the state of the evidence before me, I am not persuaded there is any basis for doubting the respondent’s conclusion that the fracture was the product of the collision.

4. Mr Armstrong went on to suggest the fracture was connected to his service because the accident happened while he was doing exercise recommended by the doctor who was treating him for his accepted conditions. He also claimed his accepted conditions made him more vulnerable to osteo-arthritic change, and that change made him more vulnerable to fractures. On that analysis, according to the applicant, the hip condition is secondary to the knee condition. Sadly, in the absence of expert medical opinion, that is merely conjecture. The evidence does not establish a connection between his accepted conditions and the accident or its effect. It is likely Mr Armstrong was simply the victim of bad luck when he was involved in the accident. It could have happened to anyone, and there is no reason to doubt anyone else would have experienced the same effects.

5. It follows I am not persuaded the respondent is liable under s 14 for the fracture of the head of the femur of the left leg. That decision must be affirmed.

6. The second claim is more complicated. The applicant received extensive assistance before he left Australia to live in China in 2008. He said nothing has really changed upon his return: he still needs the help, and he noted the rehabilitation assessors retained by the respondent identified a range of services and assistance that would be of benefit. The applicant said the hip condition and a related left knee condition that appeared to be caused by the same accident are not really an issue: he said those conditions have, in a practical sense, resolved (although that has not deterred him from making a claim with respect to the hip condition). Mr Armstrong said the problem is his left knee, and the respondent has accepted liability for that condition in the past – so the respondent should logically accept an obligation to provide extra assistance pursuant to s 29 of the Act, and to assist with the cost of appliances (such as his wheel-chair) under s 39.

7. The respondent acknowledged the extra assistance and appliances would be of benefit, but it said it is not responsible for the cost. Ms Ford, counsel for the respondent, pointed out in her written submissions that the respondent only ever accepted liability for some of Mr Armstrong’s conditions, including relevantly the aggravation of pre-existing trio-compartmental degenerative changes to the left knee. The left knee has been replaced, so the respondent said it cannot be liable for ongoing problems.

8. It is hard to dispute that logic, and I was not provided with meaningful medical expert opinion that would enable me to do so. While the applicant was understandably focused on the difficulties he experiences in taking care of himself – he spoke about the fact he was required to bathe in the open at night because the bathroom in his home was not fitted with appropriate aids, for example – I need some evidence that would enable me to make the link between the applicant’s accepted conditions as they are precisely defined and the (undoubted) need for services and assistance and appliances he has identified.

9. That leaves only the question of travel costs. The respondent may be required to meet travel costs in the limited circumstances identified in the Act (most obviously under s 16 where an applicant must travel beyond a certain distance to receive medical treatment in respect of an accepted condition). The evidence does not establish the treatment in question related to an accepted condition. There is no basis on which the respondent can be required to reimburse the applicant for travel costs incurred in respect of a non-compensable condition.

   CONCLUSION

10. The decisions under review must be affirmed.

I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

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Associate

Dated  20 December 2013

Date of hearing

Applicant

6 November 2013

In person

Counsel for the Respondent

Ms E Ford

Solicitors for the Respondent

Dibbs Barker