Dalgleish and Military Rehabilitation and Compensation Commission

[2006] AATA 465

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 465

ADMINISTRATIVE APPEALS TRIBUNAL          V° V2005/431

GENERAL ADMINISTRATIVE  DIVISION

Re:            JAMES ANTHONY DALGLEISH

Applicant

And:MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal:       Mr Egon Fice, Member

Date:26 April 2006

Place:Melbourne

Decision:For reasons given orally at the hearing, the Tribunal affirms the decision under review.

(sgd) Egon Fice

Member

MILITARY REHABILITATION AND COMPENSATION COMMISSION – compensable loss – extinguishment of claim – aggravated injury – claim for medical expenses yet to be incurred

Commonwealth Employees’ Compensation Act 1930

Safety, Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

26 April 2006  Mr Egon Fice, Member

1.      On 25 March 2004 Mr Dalgleish wrote to the Military Rehabilitation and Compensation Commission (“MRCC”) seeking “consideration for those injuries sustained in MVA (motor vehicle accident) of 1996 not covered by the 1986 aggravated injuries”.  A delegate of MRCC responded by letter dated 24 January 2005 stating that the Department of Veterans’ Affairs (“the DVA”) was not liable to pay compensation to Mr Dalgleish for injuries arising out of the motor vehicle accident on 12 August 1966.  In an undated letter received by the DVA on 9 February 2005, Mr Dalgleish requested a review of the decision dated 24 January 2005.  In a letter dated 20 April 2005, a Director of MRCC wrote to Mr Dalgleish affirming the determination of 24 January 2005.  Mr Dalgleish seeks a review of that decision.

BACKGROUND

2.      On 12 August 1966, while travelling on pre-embarkation leave, Mr Dalgleish was injured in a motor vehicle accident.  He suffered a number of serious injuries including a fracture of (fifth vertebrae) the cervical spine, a supracondylar fracture of the right humerus, a fracture of the right radius and ulna and severe concussion.  He underwent medical treatment in hospital for approximately six months.

3.      Mr Dalgleish was discharged from the Army on 28 September 1967 on the expiry of his statutory term of national service.

4.      In a determination dated 7 October 1968, the Department of Defence accepted liability for the injuries sustained by Mr Dalgleish on 12 August 1966.  He recovered damages of approximately $25,000 in common law proceedings arising from that accident.

5.      After leaving the Army, Mr Dalgleish had a variety of jobs concluding with his own practice as a remedial soft tissue therapist.  It appears he ceased that work in 1995 because of his physical condition.

6.      On 26 July 1986, while riding his motorcycle to work, Mr Dalgleish was again involved in a collision with a motor car.  He was hospitalised for approximately three months.  After some rehabilitation he returned to full‑time employment in September 1987.  In 1991 he started receiving compensation for the 1986 accident.

7.      In April 1993 Mr Dalgleish settled his claim, for personal injuries suffered in the 1986 accident, for $250,000.  That settlement included compensation for aggravation to the injuries he suffered in the 1966 accident.

8.      In 1998 Mr Dalgleish made a claim for compensation for injuries incurred in the motor vehicle accident on 12 August 1966.  The DVA initially determined, on 2 October 1998, that Mr Dalgleish had suffered injuries arising out of his military service as a result of the accident of 12 August 1966.  However, on 24 June 1999, the Department made a reconsideration on its own motion revoking the determination of 2 October 1998 and determining that the DVA was not liable to pay compensation for those injuries. 

9.      Mr Dalgleish sought review of the decision of 24 June 1999 and this Tribunal (Senior Member B Pascoe) delivered a Decision on 16 October 2000 affirming the decision under review.

10.     On 25 March 2004 Mr Dalgleish wrote to the MRCC claiming “compensation for Injuries in the 1986 MVA and aggravation to 1966 MVA injuries”.  He also said “I now seek consideration for those injuries sustained in MVA not covered by the 1986 aggravated injuries”.

CONSIDERATIONS

11.     It was difficult to understand the precise nature of Mr Dalgleish’s claim from what he has written in his letter of 25 March 2004.  For that reason, a substantial part of the hearing was taken up in attempting to establish the nature of Mr Dalgleish’s claim.  The decision, as set out in the MRCC letter of 24 January 2005, may well have contributed to the confusion, where it said:

It is my decision that the Department of Veterans Affairs is not liable to pay compensation for crush fracture C5 vertebrae, fractured right radius, fractured right ulna, supracondylar fracture right humerus, sprained right ankle, facial lacerations, severe concussion and fractured nasal bones arising out of a motor vehicle accident on 12 August 1966.

It appears that Mr Dalgleish understood that decision to mean that the MRCC now denies all liability in respect of any injuries that Mr Dalgleish suffered in his 1966 accident.  This notion was further contributed to by the fact that on 24 June 1999 the DVA made a reconsideration on its own motion, revoking the determination of 2 October 1988 that he had suffered injuries arising out of or in the course of his military service and referring to the 12 August 1966 accident.

12.     Mr Dalgleish sought review of the 24 June 1999 decision by this Tribunal.  Senior Member Pascoe, in his decision of 16 October 2000, treated the application by Mr Dalgleish as a claim for incapacity arising out of the 1966 motor vehicle accident.  Putting aside for the moment the fact that Mr Dalgleish was compensated for any aggravation to his 1966 injuries which was caused by the 1986 accident, which Senior Member Pascoe accepted, the Senior Member concluded:

…I am not and cannot be satisfied, on the balance of probabilities, that the current incapacity of Mr Dalgleish can be attributed to the 1966 accident so as to result in compensation arising from that injury.

13.     At the hearing before Senior Member Pascoe, Comcare, the respondent in that proceeding, submitted that any current incapacity for work and requirement for ongoing medical treatment and medication were the consequence of the 1986 accident.  In respect of that, the Senior Member said, at paragraph 16:

… He may well have had some ongoing symptoms from the 1966 neck and right arm injuries but they did not appear to have caused any limitations in work, sporting or social capacity nor any significant medical treatment.

14.     At the hearing of this claim, Mr Dalgleish seemed to be of the opinion that any rights which he had in respect of the 1966 injury had been extinguished.  However, that is not the case.  There is no question that the injury suffered by Mr Dalgleish may be compensable under the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”) (see s 124(1)). If Mr Dalgleish was able to demonstrate compensable loss arising out of the 1966 injury under the Commonwealth Employees’ Compensation Act 1930 (“the 1930 Act”), then his claim would be preserved under s 124(1A) of the SRC Act. An “injury” is defined in s 4(1) of the SRC Act as:

…

b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment…

15. Senior Member Pascoe found that Mr Dalgleish’s injuries as a consequence of the 1966 accident did arise out of or in the course of his employment. However, what Mr Dalgleish was unable to demonstrate to the Tribunal on that occasion was that he suffered incapacity as a consequence of the 1966 accident. Nor did Mr Dalgleish demonstrate, in the course of that hearing, that he had incurred any significant medical expenses for which he was entitled to be compensated. As far as his medical expenses are concerned, they were clearly payable under the 1930 Act (see s 11). In fact that section provides that where an employee suffers an injury in the course of his employment, and where compensation is payable by the Commonwealth under the Act, or where compensation would be so payable but for the fact that the employee is not incapacitated for work, the Commonwealth is nevertheless required to pay for medical treatment in relation to the injury. Section 16 of the SRC Act, relevantly provides:

(1)Where an employee suffers an injury, Comcare 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 Comcare determines is appropriate to that medical treatment.

…

16.     The problem with Mr Dalgleish’s claim is that he was concerned that the decision made by the MRCC in its letter of 20 April 2005 completely precluded him from making a claim for medical expenses in relation to the 1966 injury.  That is not the case. 

17.     Mr Dalgleish admitted that he had not incurred any medical expenses in relation to his 1966 accident for which he now claimed although he was concerned because he intended to have a medical procedure to his right wrist which was injured in the 1966 accident.  He was concerned that the MRCC would not compensate him for the costs of having the medical procedure.  Quite clearly, that question is premature at this stage.  Until such time as Mr Dalgleish makes a claim in respect of that medical procedure, and the MRCC makes a decision regarding whether compensation will be paid for that procedure, then there is nothing before the Tribunal to enliven its jurisdiction.  As I recommended to Mr Dalgleish in the course of the hearing, he should consult his medical practitioner regarding the intended procedure to his right wrist and obtain a report from that medical practitioner setting out the nature of the treatment proposed and, if possible, explaining why the requirement for the treatment arises out of the 1966 accident and that it is reasonable for Mr Dalgleish to obtain that treatment.  If Mr Dalgleish then submitted that report to the MRCC, and the MRCC indicated that it would refuse to pay for that treatment, it is likely that the jurisdiction of the Tribunal will be enlivened.  Until that process has been exhausted there is nothing further that the Tribunal can do to determine the rights of the parties before it.

DECISION

18.     Given that Mr Dalgleish does not make a claim for incapacity or permanent impairment due to his motor vehicle accident in 1966, and he has incurred no medical expenses in relation to that accident which he can prove were reasonable and necessarily incurred, I must affirm the decision made by the MRCC on 20 April 2005.

I certify that the eighteen [18] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr Egon Fice, Member

(sgd)       Olympia Sarrinikolaou

Clerk

Date of Hearing:  26 April 2006

Date of Decision:  26 April 2006

Representative for the applicant:   nil – self‑represented

Advocate for the respondent:       Mr J. Lenczner

Solicitor for the respondent:         Sparke Helmore