Beatson and Military Rehabilitation and Compensation Commission
[2010] AATA 190
•22 March 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 190
ADMINISTRATIVE APPEALS TRIBUNAL )
)No: 2009/1515
Veterans' Appeals Division )
Re: Scott Beatson
Applicant
And: Military Rehabilitation and
Compensation Commission
Respondent
TRIBUNAL: The Hon R J Groom (Deputy President)
DATE: 22 March 2010
PLACE: Hobart
DECISION:The Tribunal does not have jurisdiction to consider a claim by the applicant for osteoarthrosis of the right hip.
................................................................
The Hon R J Groom
(Deputy President)
CATCHWORDS
PRACTICE AND PROCEDURE- compensation – jurisdiction – claim for labral tear in right hip – recovery from that injury – tribunal now asked to consider osteoarthrosis of right hip joint – whether Tribunal has jurisdiction to consider new injury – different injury – injury not considered in original determination nor in review by VRB – Tribunal does not have jurisdiction.
Military Rehabilitation and Compensation Act (Cth) ss 345, 348
Lees v Comcare (1999) 56 ALD 84
Abrahams v Comcare (2006) 93 ALD 147
Filsell and Comcare [2009] AATA 90
REASONS FOR DECISION
22 March 2010 The Hon RJ Groom (Deputy President)
INTRODUCTION
In 2007 the applicant lodged a claim for compensation under the Rehabilitation and Compensation Act 2004 (The Act). His then claimed injury was a labral tear in the right hip arising out of a motorcycle accident. After that claim had been originally determined and then reviewed by the Veterans’ Review Board (“VRB”), and following fresh medical advice, the applicant changed the description of the injury to osteoarthrosis of the right hip.
In light of the changed description of the injury, the respondent has requested a preliminary hearing to determine whether the tribunal has jurisdiction to consider the claim for osteoarthrosis of the right hip.
BACKGROUND
On 22 February 2007, the applicant lodged a claim form dated 19 February 2007 claiming compensation for “tore labrial (sic) in right hip.” (T6 pg 61)
He explained in a “supporting statement” attached to his claim form that he has injured his right hip in a motorcycle accident which had occurred whilst he was on long service leave.
The applicant stated that “…my service since the accident and up until now has immensely aggravated and will continue to aggravate my right hip.” (T6 pg 62)
A delegate of the MRCC confined his consideration of the applicant’s claim to a “…small partial thickness postero-inferior acetabular labral tear of the right hip”. This had been the diagnosis provided by Dr DG Rossi (T14 pg 96). In that original determination consideration was limited to the statement of principles (“SOP”) relevant to the injury the applicant then claimed to have suffered. That SOP was “acute sprain and acute strain” (no.56 of 2006 – T4 pg 9)
On 29 October 2008 the VRB reviewed the original determination. The only injury considered by the VRB was “small partial thickness postero-inferior acetabular tear right hip.” The VRB affirmed the original determination (T27 pf 139). That decision by the VRB is the reviewable decision now before the Tribunal.
Following medical reports from Mr Pritchard, an orthopaedic surgeon, and Dr Gill, a general practitioner, obtained during 2009, the applicant now claims that the recurrent pain in his right hip is not caused by a labral tear in the right hip resulting from the motorcycle accident, but from osteoarthrosis of the right hip.
Mr Pritchard said in a report dated 11 August 2009:
“he was investigated at the time for right groin pain and was found on MR to have what was suspected as a posterior labral tear. He subsequently recovered from this and the year of ’06 was relatively good.”
Dr Gill, in a report dated 21 October 2009 explained:
“The second problem is a recurrent pain in his Right hip. Initially this was felt to be the consequence of a motor vehicle accident which occurred while he was on long service leave. His earlier application for compensation was for a sprain of this hip. This application has been declined and he was appealing the decision. More recently this year he saw an orthopaedic surgeon who felt that he has an impingement syndrome on his femoral neck as the cause of his hip pain.”
In a letter dated 22 October 2009 the applicant’s RSL advocate Mr Fitz said:
“This is not related to a previously claimed motor bike accident but to osteoarthritis of the right hip having disordered joint mechanics affecting the joint before clinical onset of osteoarthrosis in that joint. Which became evident after Mr Pritchard repaired the cartilage and removed the impingement in the hip joint.”
Mr Fitz wrote a letter dated 29 October 2009 in which he set out the applicant’s contentions on the jurisdiction issue now before the Tribunal. He explained the applicant’s position as follows:
“we have a number of issues that we do agreed (sic) with, however we believe that the hearing should go ahead on the basics (sic) that Mr Pritchard did infact (sic) change the original client’s claim from one in respect of an aggravation of an injury received in a motor bike accident to one in respect of Osteoarthritis of the right hip based on having disordered joint mechanic affecting the joint before the clinical onset of osteoarthritis in that joint. We agreed that the reviewable decision before the AAT related to an alleged aggravation of “Torn Labrial R Hip”
We submit that the osteoarthritis which is a new condition now substitute (sic) the original claim. There is enough Federal court legalization plus custom practice by DVA to allow it to progress. Consequently we consider that the AAT has jurisdiction to continue with this case.”
THE ISSUE
The issue for determination is whether the Tribunal has jurisdiction to consider the compensation claim for osteoarthrosis of the right hip.
A THREE TIER DECISION MAKING PROCESS
The Act provides a three tier decision making process. A written claim for compensation is made and then is initially considered and determined by a delegate of the Military Rehabilitation and Compensation Commission. The second tier is either a reconsideration by the Commission or a review by the VRB. The third tier is a review by the Administrative Appeals Tribunal. This Tribunal can only review a “reviewable determination” (see section 345 of the Act). The reviewable determination is a decision by the VRB or the Commission on a reconsideration or a decision to vary a determination under section 348(1) of the Act.
This Tribunal is not free to conduct a review “at large”. It is confined by the Act to review only “reviewable” determinations (see Lees v Comcare (1999) 56 ALD 84). If the first two tiers of the review process have been limited to consideration of a particular injury, but then at the third tier of the process an applicant changes course and raises an entirely separate and distinct injury, the question is whether there is then present a reviewable determination within the meaning of the Act? If, for example, an injury to the left hand is the sole claim in the first two tiers of the process and then when the application is before this Tribunal, the basis of the compensation claim is changed to an injury to the left foot, is there then jurisdiction to consider that new basis for the claim? The new injury would not have been investigated and considered at the first tier of the process, nor at the second tier. There would therefore have been no decision whatsoever on that particular injury. In such a case there is no reviewable determination in respect to that injury for the Tribunal to consider.
The answer to the example given in paragraph 15 may be quite clear. There can, however, be grey areas where, for example, a changed description may simply be a more accurate diagnosis of what is really the same injury or condition.
In Abrahams v Comcare (2006) 93 ALD 147 at paragraph 18 Madgwick J set out some “legal propositions” which should be applied in considering this issue including:
“5. There is not always a bright dividing line available to assist in the decision where the powers of the kinds mentioned are being exercised in aid of a better understanding of a claim made in respect of an injury of which notice has been given, or whether the changed notice is sufficiently fundamental to indicate that a different injury is being asserted, which would require a different decision from a decision in respect of the originally claimed injury under consideration. In determining that matter, considerations of the purpose of giving notice of injury, and more generally of enabling the decision matter of having their opportunity to investigate the claim properly, are paramount.
Madgwick J went on to state in Abrahams at paragraph 21:
“nothing is more common than that medical diagnoses change and evolve, or are or become various. In my opinion, to hold that the applicant was irretrievably asserting that he had a right carpal tunnel syndrome as the injury to his hand is to take an over-literal view of the document that, as I have indicated should be beneficially, broadly and practically interpreted.
His Honour added at paragraph 25:
“It would still be for the tribunal to decide whether what has been sought to be litigated is in truth a claim for injury, broadly understood, to the right wrist, occurring in the limited time frame assigned to it in the notice of injury, in which case a proper exercise of the powers of the first instance decision maker might well be to enable to any material that is sought to be put on that subject to be put.”
Deputy President Jarvis in Filsell and Comcare [2009] AATA 90 expressed his opinion on this issue on the following terms:
“…decision makers have the power to consider a claim better explaining a claim previously made, provided that there is not a fundamental change in the nature of the injury asserted”
The question to be answered here is whether there is a fundamental difference in the injury now being claimed compared with the injury initially claimed and considered and determined in the first two tiers of the decision making process.
IS THIS A FUNDAMENTALLY DIFFERENT INJURY?
The applicant’s initial compensation claim was for a labral tear in the right hip. It was said that that injury was caused in a motorcycle accident. The applicant alleged that this injury was aggravated by his “normal everyday service.” This injury was the result of sudden trauma. It was not progessive in nature. The relevant SOP was “acute strain and acute sprain” (no. 56 of 2006).
As stated in paragraph 8 above Mr Michael Pritchard Orthopaedic Surgeon expressed the view in a letter dated 11 April 2009 that the applicant had recovered from the posterior labral tear he had earlier suffered. The fact that there was a recovery from the claimed injury is significant.
In the course of an operation in October 2009 it was found that the applicant had an “impingement syndrome on his femoral neck”. In his report of 21 October 2009 Dr Gill said the relevant SOP was for “osteoarthrosis of the right hip”. He stated:
“I have looked at the statement of principles for osteoarthrosis of the hip.
2(b) For the purposes of this statement of principles, “osteoarthrosis” means a clinical joint disorder associated with progressive loss of articular cartilage, sclerosis of the underlying bone, proliferation of bone and cartilage at the joint margins, and inflammation of the synovium , as well as a history of pain, impaired function and stiffness. This description fits his clinical circumstances particularly the findings at his operation in September 2009.
Factor 6 (i) for osteoarthrosis of a hip, knee or ankle joint only, having disordered joint mechanics affecting that joint before the clinical onset of osteoarthrosis in that joint applies in his case due to the femoral neck irregularity and contribution of service in the ADF to its aggravation seems self evident.
Factor 6 (j) for osteoarthrosis of a hip, knee, or ankle joint only, lifting loads of at least twenty-five kilograms while bearing weight through the affected joint to a cumulative total of at least 120 000 kilograms within ant ten year period before the clinical onset of osteoarthrosis in that joint;. would also seem to apply in his case.”
The evidence indicates that the initially claimed injury of labral tear in the right hip and the subsequently claimed injury of osteoarthrosis of the right hip are two different injuries.
The first injury was claimed to have occurred in a traumatic incident namely the motorcycle accident. It is said that the relevant SOP was for an acute strain or sprain.
The subsequently claimed injury of osteoarthrosis is a progressive condition as described by Dr Gill when referring in his report of 21 October 2009 to the SOP applying to that condition. This new condition was initially revealed during an operation in October 2009. This was more than 2 years after the applicant lodged his claim for compensation and approximately
6 months after the application to the AAT was lodged.
There are obviously some common factors associated with the two injuries. They both affect the right hip and cause pain in that area of the body. However, the nature and causes of the two injuries are quite distinct. One is a sudden tear caused in an accident; the other is a progressive condition of the right hip joint. According to Mr Pritchard, the applicant had recovered from the labral tear injury. The original claim was not a broadly expressed claim of, for example, pain in the right hip. It was a claim for a specifically identified injury namely a labral tear. The newly claimed injury, osteoarthrosis, has also been clearly identified. Although situated in the right hip region, the two injuries are fundamentally different.
CONCLUSION
After considering all of the material before it, the Tribunal is satisfied that the newly claimed injury is a fundamentally different injury. The respondent did not have a proper opportunity to investigate it prior to making the original determination. It was not the subject of that determination nor of the review by the VRB.
The Tribunal was assured at the hearing by Mr Wilson representing the respondent that the applicant remains entitled to make a fresh claim for compensation for osteoarthrosis of the right hip. Such a claim could then be properly investigated and considered by the respondent. As the applicant is now claiming for a different injury, that is the correct approach to adopt.
DECISION
The Tribunal does not have jurisdiction to consider a claim by the applicant for compensation for osteoarthrosis of the right hip.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J groom (Deputy President)
Signed: .............................................................................
S. Kivela, Associate
Date of Hearing 11 February 2010
Date of Decision 22 March 2010
Advocate for the Applicant Mr B Fitz, RSL Welfare Office
Solicitor for the Respondent Mr D Wilson, Australian Government Solicitor
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