Bunnett and Military Rehabilitation and Compensation Commission (Compensation)

[2020] AATA 2178

Bunnett and Military Rehabilitation and Compensation Commission (Compensation) [2020] AATA 2178 (7 July 2020)

Division:GENERAL DIVISION

File Number:          2019/7665

Re:Keith Bunnett

APPLICANT

AndMilitary Rehabilitation and Compensation Commission

RESPONDENT

DECISION

Tribunal:Deputy President S A Forgie

Date of decision:               7 July 2020

Place:Melbourne

The Tribunal decides that it does not have jurisdiction to review the respondent’s decision to refuse to pay for the Receiver in Canal style hearing aids as requested by the applicant.

……………[sgd]………………..               

Deputy President S A Forgie

Catchwords

PRACTICE AND PROCEDURE – applicant had previously provided with hearing aids for compensable injury - respondent refused to pay for same type of hearing aids when legislation determining entitlement to compensation amended – whether a reviewable decision has been made – applicability of Safety, Rehabilitation and Compensation Act 1988, Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 and Military Rehabilitation and Compensation Act 2004  –  no reviewable decision made – Tribunal has no jurisdiction

Legislation

Acts Interpretation Act 1901
Administrative Appeals Tribunal Act 1975; s 42C
Commonwealth Employees’ Rehabilitation and Compensation Act 1988
Defence Act 1903
Legislation Act 2003; s 15G
Military Rehabilitation and Compensation Act 2004; s 13; s 280A; s 384
Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004
Public Service Act 1999
Safety Rehabilitation and Compensation Act 1988; s 60; s 62; s 64; s 73B; s 144; s 144B; s 144C
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988;
Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Act 2017
Veterans’ Affairs Legislation Amendment (Veteran-centric Reforms No. 1) Act 2018
Veterans’ Affairs Legislation Amendment (Military Compensation Review and Other Measures) Act 2013
Veterans’ Affairs Legislation Amendment (Military Compensation Review and Other Measures) Bill 2013
Veterans’ Entitlements Act 1986

Secondary materials
Review of Military Compensation Arrangements, February 2011

REASONS FOR DECISION

Deputy President S A Forgie

1. Mr Bunnett was a Lieutenant Colonel in the Army Reserves.  On 14 May 2002, a delegate of the Comcare determined that he had suffered a contraction of a disease, to which his military service was a contributing factor.  That disease was 1.8% noise induced deafness from 30 November 1988 (compensable injury).  As a consequence, the Commonwealth was liable to pay compensation to Mr Bunnett under the Safety Rehabilitation and Compensation Act 1988 (SRC Act).[1]  Compensation took the form of payment for hearing aids.  His hearing aids were paid for and he applied to the Tribunal for review of decision refusing to replace them at a later time.  The last occasion on which the SRC paid for his hearing aids was in 2013.  On 8 October 2019, a delegate of the Military Rehabilitation and Compensation Commission (MRCC) made a determination not to approve payment for partially subsidised hearing aids and advised Mr Bunnett that he was no longer entitled to apply to the Tribunal for review of its decision.  Mr Bunnett lodged an application in the Tribunal on 21 November 2019 for review of the determination.

   [1] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents); T1 at 1

1. Following a hearing to determine jurisdiction, Mr Rudge made written submissions setting out the various legislative changes that he said supported the MRCC’s position.  Mr Bunnett’s position is unchanged i.e. that the SRC had accepted liability for his hearing loss, it has paid for his Receiver in Canal (RIC) style hearing aids in the past and the MRCC now seeks to reduce the level of his entitlement retrospectively.  He does not accept that this should be so or that the Tribunal does not have jurisdiction to review the decision to pay for RIC style hearing aids. I have considered the legislation under which Mr Bunnett is entitled to compensation as a member of the Defence Force.  It has changed over the years and is no longer the SRC Act, under which liability for his hearing loss was accepted and he received his first hearing aids.  His entitlement to treatment for his hearing loss is now determined under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRC Act) with treatment being provided, in most cases, under the Military Rehabilitation and Compensation Act 2004 (MRC Act).  Again, in most cases, no provision is made for review of determinations made in relation to treatment.  I have attempted to trace the pathway that has led to this outcome and set it out below.

2. In Mr Bunnett’s case, the effect of the DRC Act is that his entitlement to treatment is determined under s 280A of the MRC Act and not under s 16 of the DRC Act.  Determinations made under s 280A are not reviewable by the Tribunal.  The only way his entitlement to treatment would be determined under s 16, and the resulting determination would have been reviewable, would have come about had the MRCC determined that it was satisfied that there were exceptional circumstances.  It did not make that determination in his case and its not doing so is not reviewable by the Tribunal.

   BACKGROUND

3. The letter dated 14 May 2002 advising him that liability had been admitted for his compensable injury was written on the letterhead of the Department of Veterans’ Affairs (DVA) but signed by an officer of that Department as a delegate of Comcare.  Comcare had been established to, among other matters, make determinations under the SRC Act.  Under s 73B it had delegated its power to make those determinations to an officer or officers of the DVA.  The letter advised Mr Bunnett:

   “Although the Commonwealth has admitted liability for your condition, payment of money to a client is not automatic.  There is a range of benefits for which you may qualify, depending on your circumstances.  Please use the use the enclosed leaflet to identify which benefits may apply to you and, if you believe you have an entitlement, complete the enclosed form and return it to me.”[2]

   [2] T documents; T1 at 1

4. Mr Burnett later applied under the SRC Act for a lump sum payment for permanent impairment with respect to his hearing impairment.  On 15 August 2003, a delegate of the SRC determined that Mr Bunnett had suffered a 1.7% loss of hearing as a result of his compensable injury and entitled to payment for permanent impairment of $713.76.[3] 

   [3] T documents; T2 at 2

5. When Mr Bunnett underwent an audiological assessment on 20 October 2008, the MRCC had been established in the Veterans’ Affairs portfolio following legislative changes in 2004.  I will return to those legislative changes but note that the MRCC was established to oversee all military compensation matters under both the SRC Act and the MRC Act.  The MRCC could delegate its functions or powers under the Act to those named in s 384 of the MRC Act.  Those persons included those engaged under the Public Service Act 1999 and performing duties in what was, and continues to be, the DVA.[4] 

[4] MCA Act; s 384(d)

1. As a result of the assessment, the audiologist sent an audiogram to the Military Compensation and Rehabilitation Services in the DVA.  It showed a bilateral, mild to moderate, sensorineural hearing loss but with the right ear marginally worse than the left.  Having regard to the assessment and to Mr Bunnett’s goals, the audiologist recommended that he be fitted binaurally with a Siemens Cielo 2 Active RIC BTE at a total cost of $3,900.  A delegate of the MRCC accepted the recommendation on 18 November 2008 and decided that it was reasonable for Mr Bunnett to be supplied and fitted with the Siemens Cielo 2 Active RIC BTE at a total cost of $3,900.[5] 

   [5] Letter dated 18 November 2002 attached to Mr Burnett’s email dated 26 February 2020

2. In or about 2012, Mr Bunnett asked for funding of $6,790 for two Siemens Pure 501 XCEL hearing aids.  A delegate of the Military Rehabilitation and Compensation Commission (MRCC) refused his request and advised him by letter dated 20 July 2012.[6] Mr Bunnett sought internal review of the decision and ultimately applied to the Tribunal for review of the decision to affirm the earlier decision. On 21 August 2013, the Tribunal made a decision with the consent of both Mr Bunnett and the MRCC under s 42C(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act).  It was a decision that:

   “1.       The Respondent is presently liable to pay compensation for the repair and replacement of the Siemens Cielo 2 Active hearing aids provided to the Applicant in or about 2008 for which liability to pay compensation was accepted by the Respondent by determination dated 18 November 2008 (or, if such hearing aids are not longer available, hearing aids that are similar in model and cost) under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).

   2.The Respondent is not liable to pay compensation for Siemens Pure 501 XCEL hearing aids under s 16 of the SRC Act.”[7]

   [6] T documents; T4 at 4-5

   [7] T documents; T13 at 22-23

3. Mr Bunnett’s audiologist wrote to the MRCC on 13 November 2013 advising that his Siemens Cielo 2 Active RIC BTE were beyond repair.  She included a quotation of $5,660 for Siemens Pure 3Mi RIC hearing aids as the nearest equivalent to his then current aid technology and features.[8]  A delegate of the MRCC decided on 13 December 2013 to pay $5,660 to supply and fit Mr Bunnett with Siemens Pure 3Mi RIC hearing aids.[9] 

   [8] T documents; T14 at 24-26

   [9] T documents; T16 at 28

4. On 21 January 2019, Mr Bunnett’s audiologist wrote to the MRCC including an assessment of his hearing and a quotation to supply and fit Signia Pure 5Nx RIC hearing aids at a cost of $8,110.[10]  An officer from DVA wrote to both Mr Bunnett and his audiologist on 28 February 2019 advising that the request had not been approved.[11]  Mr Bunnett was advised that he was eligible to access the Hearing Services Program (HSP) through the Office of Hearing Services (OHS).  HSP is administered by the Department of Health (Health) as part of a long standing arrangement that it has with DVA.  DVA’s letter explained that Mr Bunnett could select a high quality device to assist with his hearing loss.  Those devices were fully subsidised.  He could also choose to purchase partially subsidised devices that had additional features but were not regarded as necessary for his requirements.  If he were to choose a partially subsidised device, he would have to negotiate the additional cost with his hearing services provider.  Those additional costs would not be covered or reimbursed by either DVA or Health.  Mr Burnett was, however, encouraged to discuss the fully subsidised options with his hearing services practitioner and also advised that he could apply for certain wireless accessories to assist with meetings, telephone communication and hearing conversations in noisy environments and over distance through the Rehabilitation Appliance Program (RAP).

   [10] T documents; T17 at 29-31

   [11] T documents; T19 at 33-34 and T20 at 35-36

1. Mr Burnett made further requests for approval for payment of Signia Pure 5Nx RIC hearing aids on 20 May 2019, 10 August 2019, 8 October 2019 and 16 October 2019.  On each occasion, DVA considered the issues.   On 30 September 2019, Dr Jason Ridgway, DVA’s Audiology Adviser had noted that Mr Bunnett holds a White Card and that his hearing loss treatment was previously funded under the SRC Act.  Dr Ridgway referred to legislative amendments that had affected Mr Bunnett’s entitlement and I will refer to them later.  He then said:

   “Mr Bunnett does not have exceptional circumstances that would warrant funding of hearing aids outside the Hearing Services Program legislation.  The configuration of his hearing loss is not unusual, and his speech discrimination scores are excellent.  There are no apparent medical conditions (eg missing external ear) that would suggest Mr Bunnett could not wear any style of hearing aid.  Mr Bunnett’s specific listening and communication goals are not unexpected for someone with his hearing loss configuration, and it is expected they could be addressed successfully with appropriately fitted, fully subsidised hearing aids.  For some challenging listening environments, devices that are available through RAP, such ad FM systems, can also be used, and can provide equivalent or superior performance in background noise when compared with hearing aids of any level of technology.

   Mr Bunnett’s audiologist refers to ‘receiver-in-the-canal’ (RIC) hearing aids.  While this style of hearing aid may be Mr Bunnett’s preference, there is no clinical or medical evidence that they would be necessary for him to wear hearing aids successfully.”[12]

   [12] T documents; T27 at 56

1. DVA’s Senior Medical Adviser, Dr Warren Harrax, noted that RIC are “… clinically less effective than externally mounted receivers. … The issue is clinical effectiveness.”[13]  He recommended that the additional cost for RIC not be approved because they did not meet Treatment Principle 3.2.2 and, in particular TP 3.2.2(e).  TP 3.2.2 reads:

   “In considering whether prior approval will or will not be given and what conditions, if any, will apply, the following will be taken into account:

   (a)any specific requirements contained in these Principles or the Act;

   (c)the extent of funds that are available;

   (d)reasonable control over expenditure;

   (e)the clinical need for the proposed treatment; and

   (f)the suitability and quality of the proposed treatment.”[14]        

[13] T documents; T27 at 57

[14] T documents; T27 at 57.  Paragraph (b) does not appear in TP3.2.2.

1. On 29 November 2019, DVA wrote to Mr Bunnett acknowledging that there are no fully subsidised hearing aids that have the Receiver in Canal (RIC) style.  DVA’s letter told Mr Bunnett that it had not received evidence from his audiologist to show that RIC hearing aids were clinically or medically necessary for his hearing requirements.  Fully subsidised hearing aids with multi-channel compression and good quality directional microphones are available.  Together with FM systems, fully subsidised hearing aids can provide equivalent or greater speech clarity in noise than partially subsidised hearing aids alone.  DVA invited Mr Burnett to invite his audiologist to give it specific information about why an RIC style hearing aid is necessary for him and/or why a different style of ear mould would not provide functional equivalence.  DVA advised Mr Burnett that the Tribunal did not have jurisdiction to review its decision although it would continue to reconsider its decisions internally.

1. Mr Burnett applied to the Tribunal for review of the MRCC’s decision.  The MRCC maintained its position that the Tribunal does not have jurisdiction.  On its behalf, Mr Rudge made comprehensive written submissions. 

MR BUNNETT’S ENTITLEMENT DETERMINED UNDER THE SRC ACT IN 2002 and 2012

Entitlement

1. Mr Bunnett’s entitlement was determined under the SRC Act in 2002 because, subject to Part II, Comcare was liable to pay compensation in accordance with the Act “… in respect of an injury suffered by an employee if the injury results in … incapacity for work, or impairment.”[15]  He was an “employee” as then defined in s 4(1) and s 5 of the SRC Act.  In particular, he was “a member of the Defence Force”.[16]  He was a member of the Defence Force because, as a member of the Army Reserve, he was a member of the Australian Army.[17]  Together with the Australian Navy and the Australian Air Force, the Australian Army constitutes the Defence Force.[18] 

   [15] SRC Act; s 14(1)

   [16] SRC Act; s 5(2)(a)

   [17] Defence Act 1903; ss 31, 32 and 32A

   [18] Defence Act 1903; s 30

2. Compensation was payable in various forms specified in Part II.  Section 16 is relevant in this case for it provides that Comcare is liable to pay the cost of medical treatment obtained in relation to the injury.  The amount it is liable to pay is the amount it determines is appropriate for treatment that it was reasonable for the employee to obtain in the circumstances.[19]  Other provisions qualify the amount.  Section 16(3), for example, provides that the cost of medical treatment shall:

   “… in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by the employee to a legally qualified medical practitioner or dentist or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair.”

   [19] SRC Act; s 16(1)

   Review by the Tribunal of Comcare’s decisions

3. Section 64 of the SRC Act provides that an application might be made by a claimant who was, in this case, Mr Bunnett.  A “reviewable decision”, as defined in s 60(1), was not made as Mr Bunnett accepted the initial determination dated 15 August 2003 and did not seek its reconsideration under s 62(2).  Had he sought review of the determination, it would have been reviewable as it was a determination made under s 16 of the SRC Act and so a “determination” as defined in s 60(1) and of which he could first have sought review under s 62 and then in the Tribunal under s 64.

4. The determination made by the MRCC on 20 July 2012 in respect of Mr Bunnett’s request for two Siemens Pure 501 XCEL hearing aids costing $6,790 was a determination as defined in s 60(1).  He did seek review of it under s 62 and ultimately applied to the Tribunal. 

   MILITARY REHABILITATION AND COMPENSATION ACT 2004

5. On 1 July 2004, the MRC Act came into operation.  It provided for compensation and other benefits for current and former members of the Defence Force who suffered a service injury or disease.[20] Mr Bunnett continued to be regarded as a member of the Defence Force under the Defence Act.

   [20] Simplified outline of the MRC Act; MRC Act; s 3

6. The MRC Act must be read with the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 (MRC Transitional Act).  Section 7(1) of the MRC Transitional Act provided that the MRC Act applied to a person’s injury, disease or death if the injury was sustained, the disease contracted or the death occurred on or after the commencement date i.e. 1 July 2004.  That meant that, from that date, benefits for those injuries, diseases or deaths were payable under the MRC Act.[21]  The same was true for an aggravation of or material contribution to a person’s injury or disease, or a sign or symptom of a person’s injury if the aggravation or material contribution occurred on or after 1 July 2004 and it related to defence service rendered by the person on or after that date or rendered before, and on or after, that date.  The MRC Act applied to that aggravation of or material contribution even if the original injury or original disease was contracted before that date.[22]

   [21] MRC Transitional Act; s 7(1)

   [22] MRC Transitional Act; s 7(2)

7. Benefits that had previously been provided for in the Veterans’ Entitlements Act 1986 (VE Act) also became payable under the MRC Act, and not the VE Act, from 1 July 2004.  I have not set out those changes as my focus is on the SRC Act but will refer to them in passing later in these reasons.  What is relevant is that, in so far as Mr Bunnett was concerned, his entitlements continued to be subject to the SRC Act as he had not claimed an aggravation or material contribution that occurred after 1 July 2004.

   REVIEW OF MILITARY COMPENSATION ARRANGEMENTS: 2011

8. Mr Rudge drew my attention to a report entitled “Review of Military Compensation Arrangements” (2011 Review) presented to the Minister for Veterans’ Affairs on 24 February 2011.  The report was prepared by a Steering Committee chaired by the Chairman of the MRCC, four members representing the Australian Defence Organisation, the Department of Education, Employment and Workplace Relations, the Department of Finance and Deregulation and Mr Peter Sutherland, a visiting Fellow from the Australian National University.  The Chair’s introduction summarised the terms of reference as focusing:

   “… on the operation to date of the Military Rehabilitation and Compensation Act 2004 (MRCA), which provides compensation coverage for defence service rendered on or after 1 July 2004.  The terms of reference also called for a review of legislative schemes that govern military compensation for review of legislative schemes that govern military compensation for service for 1 July 2004 and any anomalies that exist; the level of medical and financial care provided to members of the Australian Defence Force (ADF) who are injured during peacetime service; the implications of a compassionate payment scheme for the families of deceased ADF members; and the suitability of access to military compensation schemes for members of the Australian Federal Police (AFP).”

1. Chapter 24 of the 2011 Review considered the level of medical care provided to members of the ADF injured during peacetime service.  At the time, that treatment was available under the SRC Act and the Steering Committee considered the entitlements available under the SRC Act, the MRC Act and the VE Act.

2. An explanation of the differences between payments under the SRC Act and the MRC Act were touched on in the following paragraphs:

   “Limited access to certain types of treatment

   24.11   In some circumstances, the Military Rehabilitation and Compensation Act 2004 (MRCA) treatment principles are more restrictive than the SRCA approach of ‘reasonable to obtain in the circumstances’.  Assuming that the use of Repatriation Health Cards under the SRCA would include the use of Treatment Principles in line with those that exist under the VEA and the MRCA, the provision of certain types of treatment that are frequently approved under the SRCA may not be available through the Treatment Principles or the Pharmaceutical Benefits Schemes.

   24.12   The most common examples include:

   ž          remedial massage performed by a massage therapist; and

   ž          gym programs.

   24.13   Additionally, the Rehabilitation Aids and Appliances Program are much tighter guidelines with respect to hearing aids, medical grade footwear, orthopaedic beds and recliner chairs than currently apply under the SRCA.

   Provider issues

   24.14   A comparison of fees for the most commonly obtained treatment shows that the amounts payable under the DVA fee schedule are more generous when compared to treatment obtained under the community-standard Medicare Benefits Schedule.

   However, most are notably less than the amounts presently available under the Comcare fee schedule applicable under the SRCA reimbursement arrangements.  Issuing SRCA defence-related claimants with treatment cards in line with the DVA fee schedule would, therefore, reduce treatment expenditure for the Australian Government.”

3. Paragraph 24.49 explained the advantages of the extension of White Cards for defence-related claimants under the SRCA include:

   “ž         improved convenience for former members compared to paying up front and seeking reimbursement;

   žconsistency across the SRCA, the VEA and the MRCA;

   žgreater control and monitoring of treatment and pharmaceuticals provided; and

   žadministration and departmental savings.”

4. The Steering Committee recommended:

   “24.1    Repatriation Health Cards – For Specific Conditions (White Cards) to be issued to Part XI defence-related claimants under the Safety, Rehabilitation and Compensation Act 1988 (SRCA) to achieve consistency in treatment arrangements for all former Australian Defence Force members.  Cards should be provided subject to a needs assessment showing long-term treatment needs, and the current reimbursement arrangements for the treatment of short-term conditions should be retained.

   24.2the Department of Veterans’ Affairs (DVA) fee schedule be adopted for treatment provided to defence-related claimants under Part XI of the SRCA.

   24.3the supplementary payment for pharmaceuticals be extended to defence-related claimants under Part XI of the SRCA with White Cards.”

5. The government of the day accepted 96 of the 108 recommendations made by the Steering Committee.  In relation to recommendations 24.1 to 24.3, the Minister for Veterans’ Affairs said in his Second Reading Speech relating to the Veterans’ Affairs Legislation Amendment (Military Compensation Review and Other Measures) Bill 2013 (VAMC Review Bill):

   “Of significant benefit is the introduction of a repatriation health card—for specific conditions, known as a white card, to former members of the Australian Defence Force with conditions accepted under the Safety, Rehabilitation and Compensation Act, where they have a long-term treatment need.

   The new streamlined arrangements will replace the existing treatment arrangements under the Safety, Rehabilitation and Compensation Act which requires SRCA members to claim reimbursement of treatment costs for their SRCA injury or ask their healthcare provider to invoice the Department of Veterans' Affairs.

   This measure will provide a consistent method of access for all former members of the Australian Defence Force with long-term treatment needs.”[23]

   AMENDMENT OF THE SRC ACT TO IMPLEMENT RECOMMENDATIONS IN 2013

   [23] Hansard, House of Representatives, 20 March 2013 at 2725-2726

   Amendments relevant to entitlement

6. As enacted, the Veterans’ Affairs Legislation Amendment (Military Compensation Review and Other Measures) Act 2013 (VAMC Review Act) added the following note to s 16(1) of the SRC Act:[24]

   “Note:     Compensation is not payable under this subsection in relation to certain defence-related claims (see Division 2A of Part XI).”[25]

   [24] See [27] above

   [25] VAMC Review Act; s 3; Schedule 11; Item 11

1. Division 2A of Part XI was inserted in the SRC Act by the VAMC Review Act.[26]  It must be read bearing in mind that s 144(1), which also comes within that Division 2A, provides that:

   “(1)     For a defence-related claim made before the MRCA commencement date:

   (a)a determination made by Comcare that is in force immediately before that date is taken, after that date, to have been a determination by the MRCC in relation to that claim; and

   (b)any other thing done by Comcare that is in force immediately before the MRCA commencement date is taken, after that date, to have been done by the MRCC in relation to that claim.”

   [26] VAMC Review Act; s 3; Schedule 11; Item 14

1. Mr Bunnett had a “defence-related claim” because the claim he had made in 2002 under the SRC Act came within the definition of that expression in s 141, which is also found in Division 2A of Part XI.  It is defined as:

   “… a claim made before or after the MRCA commencement date (including a claim made but not determined before that date) in respect of an injury, loss, damage or death.

   (a)to which the MRCA does not apply; and

   (b)that relates to defence service that occurred before the MRCA commencement date.

   Note 1:For injuries, diseases and deaths to which the MRCA applies, see Parts 2 and 3 of the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004.

   Note 2:       Rehabilitation may be provided following a defence‑related claim in respect of an injury.”

1. He had “defence service” as required by paragraph (b) of the definition.  The expression “defence service” has the meaning given by the MRC Act.[27]  Section 6(1)(d) of the MRC Act provides that “defence service” means warlike service, non-warlike service or peacetime service.  Even if Mr Bunnett did not have warlike service or non-warlike service within the meaning of ss 6(1)(a) and (b), he had “peacetime service” being “any other service with the Defence Force” within the meaning of s 6(1)(c).  Mr Bunnett’s claim in relation to his hearing loss caused as a result of his service with the Reserves was, therefore, a defence-related claim within the meaning of the MRC Act. 

[27] SRC Act; s 141

1. His claim in relation to his defence-related claim had been determined by a delegate of Comcare before the commencement date of the MRC Act i.e. the date on which s 3 of the MRC Act commenced[28] or 1 July 2004.[29]  Section 144(1)(a) of the SRC Act provided that, for a defence-related claim made before that day, as was Mr Bunnett’s claim, a determination made by Comcare before that date is taken, after that date, to have been a determination made by the MRCC in relation to the claim.

   [28] SRC Act; s 3

   [29] MRC Act; s 2(1); Item 2

1. Section 144B of the SRC Act applied in certain circumstances to an employee, as is Mr Bunnett,[30] and what it called an “SRCA injury” i.e. an injury.[31]  The certain circumstances were:

   [30] See [15] above

   [31] Section 5A defines an “injury” in terms of both a disease suffered by an employee and, with certain qualifications, an injury.  There is no need to go into the complexities of the definition in this case as Comcare clearly accepted liability for Mr Bunnett’s hearing loss regardless of its precise classification.

   “(a)     a defence-related claim for compensation is made in respect of the SRCA injury by or in respect of the employee; and

   (b)the MRCC accepts liability to pay compensation for the SRCA injury; and

   (c)any of the following applies:

   (i)between 1 January 2012 and 9 December 2013, the MRCC is liable to pay compensation under subsection 16(1) in respect of the cost of medical treatment obtained in relation to the SRCA injury;

   (ii)the MRCC accepts liability to pay compensation for the SRCA injury, as referred to in paragraph (b) of this subsection, on or after 10 December 2013;

   (iii)the MRCC determines, under subsection (2), that this section applies in relation to the employee and the SRCA injury.

   Note:The MRCC may also determine that subparagraph (1)(c)(i) or (ii) does not apply (see section 144C).”

1. Mr Bunnett’s circumstances came within s 144B(1)(c)(ii) because Comcare had, and the MRCC is taken by virtue of s 144(1)(a) to have, accepted liability to pay compensation in the form of his hearing aids for his SRCA injury being his hearing loss.  No determination excluding Mr Bunnett and his injury from the operation of ss 144B(1)(c)(i) or (ii) had been made by the MRCC under s 144C(1).  The MRCC might do so if there were exceptional circumstances.  A determination under s 144C would mean that his treatment would be determined under s 16.

1. Section 144B(3) set out a table that had effect in relation to an employee and an SRCA injury to which s 144B applied.  Only Item 1 of the table applied to Mr Bunnett’s circumstances.  It provided:

Treatment to be provided under the MRCA or the Veterans’ Entitlements Act 1986
Item	If this condition is met…	then …
1	The employee is not entitled or eligible to be provided with treatment under the MRCA or the Veterans’ Entitlements Act 1986 for any injury or disease (within the meaning of those Acts)	Section 280A of the MRCA applies to the employee and the SRCA injury
…	…	…
…	…	…

Note 1:The employee is entitled to be provided with treatment under the MRCA or the Veterans’ Entitlements Act 1986 if section 280A of the MRCA or subsection 85(2A) of the Veterans’ Entitlements Act 1986 applies to the employee and the SRCA injury.

Note 2:This subsection is subject to section 144C.

Note 3:In this Act, the definition of injury includes a disease (see section 5A of this Act).

1. Section 144B(4) provided that:

   “The employee is entitled to be provided with treatment as a result of the table in subsection (3) on and after:

   (a)if subparagraph (1)(c)(i) applies – 10 December 2013; or

   (b)if subparagraph (1)(c)(ii) applies – the day the MRCC accepts liability; or

   (c)if subparagraph (1)(c)(iii) applies – the day specified in the determination.”

2. Section 144B(5) made clear that:

   “The employee is not entitled to compensation under subsection 16(1) in respect of the cost of medical treatment obtained in relation to the SRCA injury if, as a result of the table in subsection (3) of this section, the employee is entitled or eligible to be provided with treatment under the MRCA or the Veterans’ Entitlements Act 1986 for the injury.”

3. Sections 16(6) to (8) of the SRC Act provide for compensation in relation to expenditure reasonably incurred in making a necessary journey, or remaining at a place, for the purpose of obtaining medical treatment.  Section 144B(6) provides that those sections apply in relation to treatment provided as a result of the table set out in s 144B(3) under the MRC Act or the VE Act as if the treatment was medical treatment referred to in those sections.

1. Section 280A(1) of the MRC Act complemented Item 1 of s 144B(3) of the SRC Act by providing:

   “A person is entitled to be provided with treatment under this Part for an injury (within the meaning of the Safety, Rehabilitation and Compensation Act 1988) if, as a result of table item 1 of the table in subsection 144B(3) of that Act, this section applies to the person and the injury.

   Note:    …

   Note:    …”

Review under the SRC Act by the Tribunal of the MRCC’s determination

1. Determinations made under s 280A of the MRC Act are not reviewable and I set that out below at [47]. Under the SRC Act, no provision was made for review of a determination made under ss 144B or 144C. That came about because determinations or decisions under those sections were not included in the definition of a “determination” in s 60(1) of the SRC Act.  As they were not determinations, a person seeking treatment could not request Comcare to reconsider them under s 62(2)(a).  That meant that there could be no “reviewable decision” as defined in s 60(1).  Under s 64, an application may only be made to the Tribunal for review of a reviewable decision.

ENTITLEMENT TO TREATMENT UNDER THE MRC ACT

General outline

1. Division 4 of Part 3 of Chapter 6 provides for the administration of the provision of treatment.  The word “treatment” is defined in s 13 of the MRC Act:[32]

   [32] MRC Act; s 5(1)

   “(1)     In this Act:

   treatment means treatment provided, or action taken, with a view to:

   (a)restoring a person to physical or mental health or maintaining a person in physical or mental health; or

   (b)alleviating a person’s suffering; or

   (c)ensuring a person’s social well-being.

   (2)For the purposes of subsection (1), treatment includes:

   (a)providing accommodation in a hospital or other institution, or providing medical procedures, nursing care, social or domestic assistance or transport; and

   (b)supplying, renewing, maintaining and repairing artificial replacements, medical aids and other aids and appliances; and

   (c)providing diagnostic and counselling services;

   for the purposes of, or in connection with, any treatment.”

1. Section 285 is concerned with the provision of care and welfare at a public hospital or other institution for persons entitled to be provided with treatment under Part 6 of the MRC Act, those operating them and any practitioner qualified to provide treatment.  It authorises the MRCC to enter arrangements with appropriate Commonwealth, State or Territory authorities or other bodies operating a hospital or other institution or practitioner to provide treatment.

1. Section 286 of the MRC Act provides that the MRCC may make a written determination regarding matters such as “the places at which, the circumstances in which and the conditions subject to which, a particular kind or class of treatment may be provided under this Part” being Part 3 of Chapter 6.[33]  Section 286(1)(d) also permits the MRCC to make a determination of the kinds or classes of treatment that will not be provided under Part 3.  These are examples of the MRCC’s power to make a determination.  Its determination does not have any effect unless approved in writing by the Minister.[34]  Once it has been approved by the Minister, it is a legislative instrument.

   [33] MRC Act; s 286(1)

   [34] MRC Act; s 286(3)

1. Section 15G(1) of the Legislation Act 2003 required that the legislative instrument made and approved under s 286 of the MRC Act be registered on the Federal Register of Legislation.  The MRCA Treatment Principles (Treatment Principles) have been registered.

The MRCA Treatment Principles applying to Mr Bunnett

1. The Treatment Principles set out the places at which, the circumstances in which and the conditions subject to which a particular kind, or class, of treatment may be provided to those who are entitled to receive it under Part 3 of Chapter 6 of the MRC Act.  Subject to the Treatment Principles themselves, the MRCC may provide or arrange for treatment in Australia of those persons who have been given a Gold Card, a White Card or written authorisation it has issued.[35]  A “White Card” is:

   “"… the identification card provided by the Department to a person who is eligible under the Act for treatment, subject to these Principles, for a service injury or a service disease and also means a written authorisation issued on behalf of the Commission under subparagraph 2.1.1(a)(iii) and provided to a person who is entitled under the Act for treatment. 

   Note:a White Card is issued to a person with a SRCA disability.”[36]

   [35] Treatment Principles; TP2.1.1

   [36] TP1.4.1

1. Hearing aids are the subject of TP11.5.  Spectacle hearing aids are not relevant in Mr Bunnett’s case.  Only TP11.5.4 to 11.5.6 are relevant and they provide:

   “11.5.4 Subject to prior approval, the Commission may accept financial responsibility for the supply of a hearing aid from an audiology provider if the hearing aid is unable to be supplied to the entitled person under the Hearing Services Administration Act 1997 or the Hearing Services Act 1991.

   11.5.5The Commission may accept financial responsibility for service charges in respect of a hearing aid that has been supplied under paragraph 11.5.4.

   11.5.6The Commission may accept financial responsibility for service charges in respect of a hearing aid following the supply of that hearing aid under paragraph 11.5.4 or 11.5.5.”

Review by the Tribunal of the MRCC’s determination

1. Most determinations, known as “original determinations”, made by the MRCC under the MRC Act can be first reconsidered by the Veterans’ Review Board and subsequently reviewed by the Tribunal after that reconsideration.  The expression “original determination” is defined in s 345(1) of the MRC Act to include any determination of the MRCC under the MRC Act other than those determinations specified in s 345(2).  Among those specified in s 345(2), and so excluded from review, are determinations made under Part 3 of Chapter 6 relating to entitlement to the provision of treatment.[37]  Therefore, a determination such as a determination relating to hearing aids for Mr Bunnett, was not a reviewable decision.

   [37] MRC Act; s 345(2)(h)

SAFETY, REHABILITATION AND COMPENSATION (DEFENCE-RELATED CLAIMS) ACT 1988

1. The Safety Rehabilitation and Compensation Act 1988 was enacted in 1988 as Act No. 156 of that year but did not receive Royal Assent in that year or at all in that form.  Therefore, it did not come into operation.  In that same year, what is now the SRC Act was enacted as the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (CERC Act).[38] 

   [38] Act No. 75 of 1988

1. In 2017, the Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Act 2017 (SRC Amendment (Defence Force) Act) was enacted and did three things.  First, it re-enacted in its entirety the SRC Act as it was in force as at the time at the time it commenced i.e. 12 October 2017.  The SRC Act, which had been originally named the CERC Act, remained in force but the second version was named the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRC Act).[39] For the purposes of s 40(1A)(a)(ii) of the Acts Interpretation Act 1901, the DRC Act was taken to have been passed in 1988 and its number to have been 156 i.e. the same number as the Safety Rehabilitation and Compensation Act 1988 as enacted in 1988.[40]  

[39] SRC Amendment (Defence Force) Act; s 3; Schedule 1, Item 1(1)

[40] SRC Amendment (Defence Force) Act; s 3; Schedule 1, Item 1(2)

1. The second thing that the SRC Amendment (Defence Force) Act did was to provide for the situation in which the DRC Act, that Act or an instrument made under it applies in relation to a time before the SRC Amendment (Defence Force) Act commenced.  In that situation, the version of the DRC Act or the instrument is taken to be the same version of the SRC Act or the relevant instrument under the SRC Act that would have applied in relation to the SRC Act at the relevant time.[41]  The third thing that the SRC Amendment (Defence Force) Act did was to amend the DRC Act to shape it to the Defence Force rather than the more general application of the SRC Act to Commonwealth employees.

   [41] SRC Amendment (Defence Force) Act; s 3; Schedule 1, Item 2

1. Further amendments to the same end were made by s 3 and Schedule 6 of the Veterans’ Affairs Legislation Amendment (Veteran-centric Reforms No. 1) Act 2018[42] (VALA 2018 Act). The amendments made by Part 1 of Schedule 6 came into operation on 29 March 2018.[43] Item 2 of Schedule 6 repealed and substituted s 2 of the DRC Act so that it was taken to have commenced on 12 October 2017. The amendments made by Part 2 of Schedule 6 came into operation on 12 October 2017 and immediately after the commencement of the Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Act 2017.[44]

   [42] Act No. 17 of 2018

   [43] VALA Act; s 2(1), Item 9

   [44] VALA Act; s 2(1), Item 10

Eligibility for compensation under the DRC Act

1. The long title of the DRC Act states that it is an Act relating to the rehabilitation and treatment of, and compensation for, members of the Defence Force, and for other related persons.  The provisions of the DRC Act refer to an “employee”, which is defined as a member of the Defence Force.[45] 

   [45] DRC Act; s 4(1) and 5(1)

1. Part II of the DRC Act provides for compensation.  Section 16(1) provides:

   “Where an employee suffers an injury, the Commonwealth is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as the MRCC determines is appropriate to that medical treatment.  

   Note: Compensation is not payable under this subsection in relation to certain defence-related claims (see Division 2A of Part XI).”  

2. Section 144A(1)(a) of Division 2A of Part XI provides:

   “The MRCC is not liable, under subsection 16(1) of this Act, to pay compensation in respect of the cost of medical treatment obtained in relation to an injury of an employee if the employee is:

   (aa) eligible to be provided with treatment under section 7 of the Australian Participants in British Nuclear Tests and British Commonwealth Occupation Force (Treatment) Act 2006; or

   (a) entitled to be provided with treatment under section 281 or 282 of the MRCA for any injury or disease (within the meaning of that Act); or

   (ab) eligible to be provided with treatment under section 7 of the Treatment Benefits (Special Access) Act 2019 as a result of a claim to establish eligibility having been determined under that Act; or

   (b) eligible for treatment under section 53D or subsection 85(3), (4), (4A), (4B), (5), (7) or (7A) of the Veterans’ Entitlements Act 1986 for any injury or disease (within the meaning of that Act).

   Note: In this Act, the definition of injury includes a disease (see section 5A of this Act).”

1. Mr Bunnett was not excluded by the provisions of s 144A(1) because he was not entitled or eligible for treatment under any of the legislative provisions specified. 

1. He does come within s 144B and, more particularly, within s 144B(1)(c)(ii).  That section provides:

   “This section applies in relation to an employee and an injury (the DRCA injury) if:

   (a)a defence-related claim for compensation is made in respect of the DRCA injury by or in respect of the employee; and

   (b)the MRCC accepts liability to pay compensation for the DRCA injury; and

   (c)any of the following applies:

   (i)between 1 January 2012 and 9 December 2013, the MRCC is liable to pay compensation under subsection 16(1) in respect of the cost of medical treatment obtained in relation to the DRCA injury;

   (ii)the MRCC accepts liability to pay compensation for the DRCA injury, as referred to in paragraph (b) of this subsection, on or after 10 December 2013;

   (iii)the MRCC determines, under subsection (2), that this section applies in relation to the employee and the DRCA injury.

   Note:The MRCC may also determine that subparagraph (1)(c)(i) or (ii) does not apply (see section 144C).”

1. As Mr Bunnett comes within s 144B, regard must be had to s 144B(3), which is in the same terms as s 144B(3) of the SRC Act.  It sets out a table that has effect in relation to an employee and an DRCA injury to which s 144B applies.  Only Item 1 of the table applies to Mr Bunnett’s circumstances.  It provides:

Treatment to be provided under the MRCA or the Veterans’ Entitlements Act 1986
Item	If this condition is met…	then …
1	The employee is not entitled to eligible to be provided with treatment under the MRCA or the Veterans’ Entitlements Act 1986 for any injury or disease (within the meaning of those Acts)	Section 280A of the MRCA applies to the employee and the SRCA injury
…	…	…
…	…	…

Note 1:The employee is entitled to be provided with treatment under the MRCA or the Veterans’ Entitlements Act 1986 if section 280A of the MRCA or subsection 85(2A) of the Veterans’ Entitlements Act 1986 applies to the employee and the SRCA injury.

Note 2:This subsection is subject to section 144C.

Note 3:In this Act, the definition of injury includes a disease (see section 5A of this Act).

1. Section 144B(4) sets out when the employee is entitled to be provided with treatment as a result of the table in s144B(3).  The times specified are:

   “(a)      if subparagraph (1)(c)(i) applies—10 December 2013; or

   (b) if subparagraph (1)(c)(ii) applies—the day the MRCC accepts liability; or

   (c) if subparagraph (1)(c)(iii) applies—the day specified in the determination.”

Mr Bunnett came within s 144B(1)(c)(i) so that he was entitled to be provided with treatment from the day the MRCC accepted liability. 

1. Section 144B(5) makes it clear that:

   “          No entitlement to compensation under this Act

   (5) The employee is not entitled to compensation under subsection 16(1) in respect of the cost of medical treatment obtained in relation to the DRCA injury if, as a result of the table in subsection (3) of this section, the employee is entitled or eligible to be provided with treatment under the MRCA or the Veterans’ Entitlements Act 1986 for the injury.”

2. Note 2 to s 144B(3) state that it is subject to s 144C, which provides:

   “Exceptional circumstances determination

   (1) If the MRCC is satisfied that there are exceptional circumstances, the MRCC may determine, in writing, that on and from a specified day subparagraph 144B(1)(c)(i) or (ii) does not apply in relation to an employee and an injury.

   (2) The MRCC must notify the employee of the determination within 7 days of the determination being made. Determination not legislative instrument (3) A determination under subsection (1) is not a legislative instrument.”

Review by the Tribunal of the MRCC’s decisions

1. Section 64(1) of the DRC Act provides that, among others, a claimant may make an application to the Tribunal for review of a reviewable decision.  A “reviewable decision” is defined in s 60(1) as a decision made under either s 38(4) or s 62(2).  Both sections provide for review of a “determination” made under one or other of specified sections of the DRC Act.  A “determination” is defined in s 60(1) to mean:

   “… a determination, decision or requirement made under section 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 29A, 30, 31, 36, 37 or 39, under paragraph 114B(5)(a) or under Division 3 of Part X.”

1. No mention is made of any provision under Division 2A of Part XI.  Section 144B(5) of the DRC Act had made it clear that there was no entitlement under s 16 if there was an entitlement by reference to the table in s 144B(3).  Mr Bunnett had such an entitlement.  Therefore, the MRCC did not make a determination under s 16 in his case.  Consequently, there could be no reviewable decision.  As there was no reviewable decision, Mr Bunnett was not entitled to apply under s 64 of the DRC Act.  Without an application, the Tribunal has no jurisdiction to review a decision and, in particular, it has no power to review any decisions made under s 280A of the MRC Act.

DECISION

1. For the reasons I have given, I have decided that the Tribunal does not have jurisdiction to review the decision made by the MRCC relating to Mr Bunnett’s request for new hearing aids.

I certify that the preceding sixty three (63) paragraphs are a true copy of the reasons for the decision herein of Deputy President SA Forgie

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

Associate

Date of decision:                 7 July 2020

Heard:

Applicant’s Advocate:

23 January 2020

Self-represented

Respondent’s advocate:

Mr Ken Rudge
Department of Veterans’ Affairs