Dawson and Military Rehabilitation and Compensation Commission

[2006] AATA 230

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 230

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          NoQ2004/983-85

VETERANS’ APPEALS DIVISION		)
Re		RAYMOND DAWSON

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Senior Member P McDermott
Dr G Maynard, Member
Dr M Denovan, Member

Date13 March 2006

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

.         .........[Sgd]........

P McDermott

Senior Member

CATCHWORDS

COMPENSATION – national service – accidentally shot while on national service training - whether injury was stabilised prior to commencement of Safety Rehabilitation and Compensation Act - whether permanent impairment .

Safety, Rehabilitation and Compensation Act 1988 s24, 25, 124
Commonwealth Employee’s Compensation Act 1930

Ileris and Comcare (1999) 30 AAR 98

REASONS FOR DECISION

13 March 2006

Senior Member P McDermott

Dr M Denovan, Member

Dr G Maynard, Member     

Introduction

1.      In 1957 Mr Raymond Ross Dawson was accidentally shot during his national service training. As a result of his gunshot injury he has a bullet fragment in his left kidney.

2.      We have to consider whether Mr Dawson is entitled to be paid compensation under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) for his injuries sustained when he was shot. The entitlement of Mr Dawson to be paid compensation under that Act is dependant upon whether there is any evidence whether he has any permanent impairment as a result of his gunshot injury and when that impairment arose.

Background

3.      Mr Dawson was born on 16 February 1939. He enlisted with the Australian Army on 6 October 1957 and was discharged with the rank of private at the conclusion of his national service on 30 June 1960.

4.      On 9 October 1957 Mr Dawson, as a national service trainee, sustained injuries when he was accidentally shot during firing training. As a result of being shot he has a bullet fragment in his left kidney.

5.      On 18 December 1957 Mr Dawson made a claim for compensation under the Commonwealth Employee’s Compensation Act 1930 (the “1930 Act”) in respect of his gun shot wound that occurred on 9 October 1957. On 25 August 1958 a determination was made under that Act whereby liability was accepted for the “gun shot wound left chest” that occurred on 9 October 1957. (T11)

6.      On 23 April 2004 Mr Dawson requested the Military Compensation and Rehabilitation Service to investigate all conditions that have resulted from his injury.

7.      On 23 August 2004 Dr Nicholas Gray, a renal surgeon, made a report which confirmed that Mr Dawson has a piece of shrapnel which has remained embedded in his left kidney since he was shot.  Dr Gray considers that Mr Dawson has 0% whole person impairment related to his current renal function. (T53)

8.      This report of Dr Gary was considered by a delegate of the Military Rehabilitation and Compensation Commission (“the Commission”).

Determination

9.      On 1 September 2004 the delegate of the Commission issued a determination under the Safety, Rehabilitation and Compensation Act1988.

10.     In that determination the delegate determined that Mr Dawson suffered an injury out of, or in the course of his military service and that liability should be extended to include “bullet fragment lodged in left kidney”.

11.     The delegate also considered whether Mr Dawson was entitled to a lump sum payment for his accepted condition of having a bullet fragment lodged in his left kidney.

12.     The delegate concluded, in reliance of the report of Dr Gary, that the impairment that he suffered became permanent on the date of injury (9 October 1957) and that his claim must be assessed in accordance with the provisions of the Commonwealth Employee’s Compensation Act 1930.

13.     The delegate stated that the 1930 Act only allows compensation to be paid for conditions listed on the “The Table of Maims” and that there is no provision to make lump sum payments for kidney conditions.

14. The delegate also considered that no payment could be made under the transitional provisions of s 124 of the Safety, Rehabilitation and Compensation Act1988 as Dr Gary reported that Mr Dawson’s kidney function is normal.

15.       On 18 August 2004 Mr Dawson requested a reconsideration of this determination.

Reviewable Decision

16.     On 1 September 2004 the Manager Reconsiderations of the Military Compensation and Rehabilitation Service affirmed the determination of the delegate.

17.     The Manager Reconsiderations concluded that the gun shot injury became permanent when it was treated.

Issues For Determination

18.     We have to consider whether Mr Dawson is entitled to compensation under the Safety, Rehabilitation and Compensation Act. In deciding this issue we must consider whether any impairment became permanent prior to 1 December 1988 which is when the Safety, Rehabilitation and Compensation Act commenced operation. This is because section 124(3) of the Safety, Rehabilitation and Compensation Act operates to prevent Mr Dawson from receiving compensation under ss 24 or 25 of the Act in the case of an impairment that occurred before the commencement day of the Safety, Rehabilitation and Compensation Act in a case where there is no entitlement to compensation under the 1930 Act.

Evidence of Applicant

19.     Mr Dawson gave evidence of the circumstances in which he was shot whilst he was undertaking his national service training. He was accidentally shot whilst he was lying in the prone position. He showed us the entry and exit points of the .303 bullet.

20.     We have no doubt about the severity of Mr Dawson’s injuries. He was hospitalised from 9 October 1957 until 5 November 1957.

21.     Mr Dawson stated that the bullet damaged his ribs, his left lung was collapsed, and there has been wastage of his muscles around the flank to this chest.

22.     Mr Dawson stated that after the incident he experienced shortness of breath but at the time Sir Alexander Murphy, in his report of 24 March1958, thought that his shortness of breath was because Mr Dawson was out of condition. (T10 folios 48-52)

23.     There is no doubt that Mr Dawson has made a concerted effort to keep fit.

24.     He regularly trained as a lifeguard by running 2km daily and participated in iron-man events. As a lifeguard he regularly drilled and was proficient in his use of a surf board.

25.     Mr Dawson also regularly swims in a pool to get expansion of his lungs.

26.     Mr Dawson has never smoked and does not drink.

27.     However, his fitness has been affected by the fact that in about 1995 his hip was no longer functional. In his own words he said: “my hip let me down”.

28.     Mr Dawson explained how he now has difficulty in bending down and lifting. He cannot lift a mower.

29.     Mr Dawson gave evidence of his current symptoms. He now experiences a shortness of breath. He states that now he is short of breath after walking some 200 metres or after exerting himself.

30.     Mr Dawson stated that he has “tightness” in his ribs or lung area. He stated that he always felt that his ribs were “wired”.

31.     Mr Dawson also experiences pain in his left flank area particularly below his ribs and in the area of his kidney. The pain persists at night time when he is sleeping.

32.     Mr Dawson gave evidence of his employment history. With the exception of his national service training, he was employed by the Bank of New South Wales (which later became Westpac) from about 1954 until about 1974. From about 1975 until 1977 he worked as a lifeguard with the Maroochy Shire Council. He then managed a caravan park for the Council from about 1988 until his retirement in 2003.

Medical Witnesses

33.     The first medical witness was Dr Peter Boys, an orthopaedic surgeon, who had prepared a report on 1 April 2004.  (T43 folios 121-125)

34.     Dr Boys had interviewed Mr Dawson on 1 April 2004.

35.     Dr Boys confirmed that Mr Dawson had suffered trauma to the chest wall, lung, diaphragm and left retroperitoneal structures. However, he considered that there was no evidence that Mr Dawson has suffered orthopaedic injury to his spine in the form of spinal derangement.

36.     Dr Boys considers that there is evidence of widespread degenerative changes throughout the thoracic and lumbar spine. Dr Boys considers that these changes cannot be related to the effects of injury to the chest of upper abdominal regions.

37.     Dr Boys considers that the degenerative changes to the thoracic and lumbar spine are constitutional in nature. Dr Boys considers that any restrictions of spinal movement that are now evident are unrelated to his Army service.

38.     Dr Boys was asked a question about an observation in Dr Anthony McSweeny’s report in 1970 (T19 folios 63-65) where Dr McSweeny remarked: “I consider his present symptoms are due to a myositis due to the presence of this foreign body and partly due to local disc degeneration between the second and third lumbar vertebral bodies which in my opinion is in turn a sequel to the presence of the retained foreign body in the back”.

39.     Dr Boys expressed the opinion that the retained bullet fragment would not cause any disc degeneration or lumbar spondylosis.  He also stated that Mr Dawson has a degenerative condition which is occurring throughout the spine.

40.     The second medical witness was Dr Peter Winstanley, an orthopaedic surgeon, who had prepared a report on 24 August  2004. (T54 folio 149)

41.     The report of Dr Winstanley also contains the following comments: “X-rays of his lumbar spine show that he has quite significant ensopathy with bony ridging present within all vertebral bodies. This is a condition which is not related to his gun shot wound”. In his evidence Dr Winstanley confirmed that by these remarks he meant that Mr Dawson has significant degeneration at a number of levels of his lumbar spine. Dr Winstanley also remarked that he did not believe that the muscle damage would have produced the degenerative change which Mr Dawson has within his spine.

42.     In his report Dr Winstanley also remarked: “His main area of discomfort is associated with his left flank area which is distal to his previous surgery and wound site. In my opinion, the pain present within this area would be, on the balance of probabilities, related to his gun shot wound”.

43.     Dr Winstanley was asked about the observation in Dr McSweeny’s report in 1970 concerning Mr Dawson’s then “present symptoms”. Dr Winstanley said that a foreign body could not cause disc degeneration or lumbar spondylosis.

44.     The third medical witness was Dr Michael Bint who practises as a thoracic physician. (T64 folios 173-183)

45.     Dr Bint stated that on 29 October 2004 he conducted a medico-legal examination of Mr Dawson. From that examination he compiled a report dated 2 November 2004.  In his report, he remarked that Mr Dawson “has a 15 per cent impairment referrable to chest well fibrosis”. Dr Bint reported that Mr Dawson’s total lung capacity remains at 100% predicted through vital capacity and FEV1 are reduced to  80-85% predicted. (T64 folio 175)

46.     Dr Bint gave evidence that the inflammatory response to the gun shot injury would have settled within months. Dr Bint stated: “one could safely say that six to twelve months after that injury, there would have been stable and established fibrosis”. Dr Bint considered that the fibrosis “would have been stable from early 1958 onwards”. Dr Bint considered that the condition became permanent and static from 1957.

47.     In cross-examination Dr Bint stated “that the fibrotic process in the chest wall, which involves the area between the ribs and the underlying pleural space, has been present for some years, would not get worse at this time”. Dr Bint added: “Just as a scar in the skin stabilises after a period, so a scar in the chest wall would stabilise and not deteriorate”.

Findings of Tribunal

48.     We point out that “the fundamental obligation of the Tribunal is to base its decision on evidence which has such degree of probative value as is appropriate having regard to the nature of the decision”: see Ileris and Comcare (1999) 30 AAR 98 at 121.

49.     In deciding this matter we have carefully considered the medical evidence in this application. 

50.     Dr Bint has given evidence before us that Mr Dawson has an impairment which is referrable to his chest well fibrosis. Dr Bint gave evidence that the inflammatory response to the gun shot injury would have settled within months and that the condition would have been stable from 1957 or 1958 when it would have been permanent and static.

51.     We accept the evidence of Dr Bint that Mr Dawson’s condition became permanent by 1958. This is prior to 1 December 1988 when the Safety, Rehabilitation and Compensation Act became operative.

52.     We also accept the evidence of Dr Boys and Dr Winstanley that the retained bullet fragment would not cause any disc degeneration or lumbar spondylosis to Mr Dawson.

53.     We have also relied upon the report of Dr Gray who considers that Mr Dawson has 0% whole person impairment related to his current renal function.

54.     There is no medical evidence before us which indicates that the condition which is attributed to his gunshot injury has deteriorated since 1 December 1988 when the Safety, Rehabilitation and Compensation Act became operative.

55. In these circumstances we consider that s 124(3) of the Safety, Rehabilitation and Compensation Act operates to prevent Mr Dawson from receiving compensation under ss 24 or 25 of the Act.

56.     We also mention that whilst Mr Dawson does not have a right to compensation under the Safety, Rehabilitation and Compensation Act, he does have rights under the determinations which have already been made.

Decision

57.     The Tribunal affirms the decision under review.

I certify that the preceding 57 paragraphs are a true copy of the reasons for the decision herein of Senior Member P McDermott and Dr G Maynard, member and Dr M Denovan, Member

Signed:          J Lauriston               
           .          Administrative Assistant

Date of Hearing  30 January 2006

Date of Decision  13 March 2006
The Applicant appeared in person
Counsel for the Respondent     Mr C Clarke
Solicitor for the Respondent     Dibbs Abbott Stillman