Craig Shorthouse and Military Rehabilitation and Compensation Commission
[2014] AATA 528
[2014] AATA 528
Division VETERANS' APPEALS DIVISION File Number
2013/3229
Re
Craig Shorthouse
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal Deputy President I R Molloy
Date 31 July 2014 Place Brisbane The Tribunal affirms the decision under review.
..........................[Sgd].........................................
Deputy President I R Molloy
CATCHWORDS
COMPENSATION – Military compensation – Whether s 19 or s 20 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) should be applied – Whether applicant incapacitated for work at time of discharge from Royal Australian Air Force – Decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 19, 20, 21
CASES
Lonergan v Comcare [2005] FCA 377
Hammerton and Comcare (1995) 21 AAR 204
REASONS FOR DECISION
Deputy President I R Molloy
31 July 2014
DECISION
This application raises the question which of ss 19 or 20 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’) apply for the purpose of calculating
Mr Shorthouse’s incapacity payments.
That depends in turn on whether Mr Shorthouse was incapacitated for work as a result of injury at the time of his medical discharge from the Royal Australian Air Force (“RAAF”) on 24 May 2001.
The reviewable decision, made on 6 May 2013, was that at the relevant time
Mr Shorthouse was so incapacitated for work and consequently the applicable provision is s 20 of the SRC Act.
For the reasons set out below I consider that decision should be affirmed.
Background
Mr Shorthouse was born on 14 August 1968. He was employed by the RAAF from 22 September 1992.
On 17 July 2000, Mr Shorthouse lodged a claim for depression/anxiety under
the SRC Act. The claim was initially disallowed on 8 February 2001.
On 15 May 2001, Dr John Chalk, psychiatrist, provided a report including his diagnosis that Mr Shorthouse had an adjustment disorder with depressed mood arising principally from his service in the RAAF.
On this basis, on 23 May 2001, the determination of 8 February 2001 was revoked and liability was accepted for Mr Shorthouse’s “adjustment disorder with depressed mood”, with a date of injury of 20 August 1999.
Mr Shorthouse had been posted inactive as a result of his now-accepted injury from
4 February 2000. He did not return to active service prior to his medical discharge which, as mentioned, was on 24 May 2001.
On 20 June 2001, Mr Shorthouse made a further claim for incapacity benefits in respect of an anxiety/depression condition, which was approved on 27 July 2001.
While compensation was sought for permanent impairment arising from his “anxiety/depression” condition, liability was not formally accepted until 30 August 2005, when a delegate accepted liability for “major depression”.
From 25 May 2001 to 28 December 2012, numerous determinations were made by the Military Rehabilitation and Compensation Commission (“MRCC”), varying Mr Shorthouse’s incapacity payments for the accepted condition “adjustment disorder with depressed mood” under s 20 of the SRC Act.
Following a determination of 20 December 2012, Mr Shorthouse sought review of the calculation of his incapacity payments.
Mr Shorthouse contended that his incapacity for work ceased prior to retirement on 24 May 2001 and that he was not incapacitated for work on that date. He claimed that he became incapacitated for work after the date of his retirement.
In those circumstances Mr Shorthouse contended that all past and future incapacity payments should be calculated in accordance with s 19, rather than s 20, of the SRC Act.
SRC Act, ss 19 & 20
Section 19 of the SRC Act is the generally-applicable provision for calculation of compensation for injuries resulting in incapacity. It applies to an employee who is incapacitated from working as the result of an injury, other than an employee to whom
ss 20, 21, 21A or 22 apply: s 19(1).
Section 20(1) of the SRC Act, relevant to this case, is as follows:
(1) This section applies to an employee who, being incapacitated for work as a result of an injury, retires voluntarily or is compulsorily retired, from his or her employment at any time after the commencement of this section and, as a result of that retirement, received a pension under a superannuation scheme.
Mr Shorthouse relies on the Federal Court decision in Lonergan v Comcare [2005] FCA 377 (“Lonergan”) which was concerned with whether the applicant’s entitlements should be calculated under s 19 or s 21 of the SRC Act. The court found that the latter provision only applied if the applicant was incapacitated for work at the date of his retirement. There was no dispute there that the applicant was not incapacitated for work at the time of his retirement: “He was carrying out his normal duties and had been doing so for over 4 months”: at [23].
So far as relevant, the wording of s 21 of the SRC Act, as considered in Lonergan, is the same as the wording of s 20 in this case. The issue, as I have said, is whether at the time of his medical discharge on 24 May 2001 Mr Shorthouse was incapacitated for work within the meaning of s 20 of the SRC Act. It is not necessary that there be a causative link between the incapacity and retirement, only a temporal link: Re Hammerton and Comcare (1995) 21 AAR 204 at 222.
Incapacity for work on 24 May 2001
There is no dispute that Mr Shorthouse has been in receipt of a pension from ComSuper since 25 May 2001 as a result of his retirement. There is no evidence that he has been fit for, or has engaged in, any form of remunerative employment in that time.
Dr Chalk, in his report dated 15 May 2001, as well as providing the above diagnosis, expressed the following opinion about Mr Shorthouse’s incapacity:
“I am uncertain as to his plans upon discharge. It is in my view unlikely that he would be able to maintain employment in the short term.”
Mr Shorthouse submits that Dr Chalk’s assessment “is nothing more than an unqualified assumption and based on erroneous and insufficient information” and should not be given any weight.
I have considered Mr Shorthouse’s submissions and disagree. There is no good reason not to accept Dr Chalk’s assessment.
There is also a report from Dr Dugdale, dated on 27 April 2001, describing Mr Shorthouse’s impairments as “anxiety and depression”. Commenting on the nature and extent of the restrictions caused by those conditions, Dr Dugdale included “unable to continue present employment”.
I have considered Mr Shorthouse’s submissions in respect of Dr Dugdale’s comments. Again I can see no good reason not to accept them.
I have not found anything in the evidence, including amongst the documents specifically relied on by Mr Shorthouse, that leads to a finding that he was not incapacitated for work as a result of an injury at the time of his retirement.
One document Mr Shorthouse relies on is a letter from the Joint Health Support Agency, which states that he was incapacitated for 465 days, a period Mr Shorthouse calculates as ending on 14 May 2001. Mr Shorthouse says he was not assessed as incapacitated from 14 May 2001 to his retirement on 24 May 2001.
It appears that the Joint Health Support Agency was responding to a request for the number of days of incapacity up to an anticipated retirement date of 14 May 2001. This is made clear in subsequent documents. It is fanciful to the think that the Agency’s letter means that Mr Shorthouse ceased to be incapacitated for work ten days prior to his actual retirement date.
Mr Shorthouse has made various allegations including forgery or tampering with documents. There are relatively minor clerical or administrative errors in respect of some of the documents. However these have had no impact on this decision. I am also satisfied that Mr Shorthouse’s allegations are unwarranted.
Mr Shorthouse has included submissions concerning the treatment of his incapacity payments for the purposes of taxation. This is not a matter which is before the Tribunal on the current application.
Conclusion
I am satisfied that Mr Shorthouse was incapacitated for work as result of his accepted condition as at the date of his retirement from the RAAF on 24 May 2001, and that his incapacity payments should be calculated under s 20 of the SRC Act.
The decision under review is affirmed.
I certify that the preceding 32 (thirty -two) paragraphs are a true copy of the reasons for the decision herein of Deputy President I R Molloy ........................[Sgd].............................................
Associate
Dated 31 July 2014
Hearing on the papers dated 9 July 2014
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