Doherty and Military Rehabilitation and Compensation Commission (Compensation)

[2019] AATA 3322

Doherty and Military Rehabilitation and Compensation Commission (Compensation) [2019] AATA 3322 (17 July 2019)

Division:VETERANS' APPEALS DIVISION

File Number:           2019/3616

Re:Robert Doherty

APPLICANT

AndMilitary Rehabilitation and Compensation Commission

RESPONDENT

DECISION

Tribunal:Member K. Parker

Date:17 July 2019

Date of written reasons:        6 September 2019

Place:Melbourne

Pursuant to s 42B(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal dismisses the application for review numbered 2019/3616 because it is misconceived.

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

Member K. Parker

Catchwords

COMPENSATION – jurisdiction – issue sought to be agitated was not the subject of the decision under review – issue sought to be agitated was the subject of a previous application before the Tribunal – previous application withdrawn by applicant and taken to have been dismissed – not open to Applicant to seek reinstatement of the previous application – present application misconceived – present application dismissed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Commonwealth Employees Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

Member K. Parker

6 September 2019

BACKGROUND

1. On 19 June 2019 the Registry of the Administrative Appeals Tribunal (Tribunal) received from the Applicant, Mr Robert Doherty, an application seeking review of a decision “made by the Department of Defence DM1288 of 9 March 1990”.[1]  Mr Doherty attached to his application a number of documents including a copy of the “9 March 1990” decision, correspondence between him and the Department of Defence and Mr Doherty’s attached reasons for his application.

   [1] Refer page 2 of Mr Doherty’s letter to the Tribunal dated 17 June 2019.

2. The decision referred to by Mr Doherty was made almost three decades ago and curiously, was made in his favour. Specifically, a delegate of the Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees on 9 March 1990 decided as follows:

   DECISION

   I have decided to revoke the decision dated 5 December 1989 that the Department of Defence is not liable to pay compensation in respect of the claim of Robert John Doherty for hypertension.

   I hereby determine that the Department of Defence is liable to pay compensation in respect of the claim of Robert John Doherty for the condition of hypertension.

3. Accordingly, the Tribunal listed this application for a jurisdictional hearing and notified the parties.

4. Mr Doherty sent a letter to the Tribunal dated 8 July 2019 explaining a number of his concerns.

5. Mr Lazarus Dobelsky of Moray & Agnew Lawyers wrote to Mr Doherty on 10 July 2019 notifying him that his firm was representing the Respondent, the Military Rehabilitation and Compensation Commission (MRCC), and enquiring whether Mr Doherty was aware that the decision of the Department of Defence dated 9 March 1990 was made in his favour and explaining what the implications would be if this decision were to be revoked.

6. Mr Doherty sent a letter to the Tribunal dated 14 July 2019 setting out further concerns held by him including that Moray & Agnew had corresponded directly with him and that he found this to be intimidating.

7. The jurisdictional hearing took place on 17 July 2019 and both parties attended by telephone.  The Tribunal provided an explanation to Mr Doherty as to why Mr Dobelsky had been involved in relation to the jurisdictional issue which Mr Doherty seemed to accept in terms of it being necessary to afford natural justice to both parties in matters before the Tribunal.

8. At the beginning of the hearing, this Tribunal made the following acknowledgement:

   …I’ve had an opportunity to see that there have been some materials filed, particularly by Mr Doherty in relation to providing a helpful history about how this matter has to come to be in the Tribunal.

9. Specifically, this Tribunal referred to a Comcare letter to Mr Doherty dated 1 March 2019 which stated that the Military Compensation scheme provided workers’ compensation coverage for Australian Defence Force (ADF) members and that the Department of Veteran Affairs (DVA) was responsible for administering claims on behalf of the MRCC and therefore, responsible for administering Mr Doherty’s compensation claim.   Comcare reiterated that it did not administer claims for “Military personnel”.

10. At the hearing, the Tribunal asked Mr Doherty if he had contacted DVA to seek advice in relation to receiving compensation.  Mr Doherty answered, “Yes – no.  Not recently, no”.   Mr Doherty subsequently clarified his evidence and told the Tribunal that he had not actually spoken to anyone at the DVA about it. 

11. Mr Doherty accepted that the decision by the Department of Defence dated 9 March 1990 was in his favour and that he did not disagree with it.  Mr Doherty agreed, when questioned by the Tribunal, that he was seeking for this decision to be implemented (and did not want it to be set aside).

12. After elucidating further information from the parties, it became apparent that by way of background Mr Doherty made a claim in 2017 for a permanent impairment lump sum payment in respect of his condition of hypertension.[2]  This claim was denied.  Apparently, there was an issue about the date of permanency of the condition.  This, in turn, impacted on whether Mr Doherty was entitled to receive permanent impairment compensation based on whether the date of permanency pre-dated or post-dated the date of inclusion of hypertension as a condition for which permanent impairment compensation was available under the legislative scheme. 

    [2] Mr Dobelsky told the Tribunal at the jurisdictional hearing that Mr Doherty made a claim for the permanent impairment compensation on 16 July 2017.

13. At the jurisdictional hearing, Mr Doherty referred to a previous application he made to the Administrative Appeals Tribunal in 2017 where he said “we were fighting over a date, basically”.   Mr Dobelsky confirmed that the MRCC was the Respondent in that previous 2017 application and had relied upon medical evidence from Professor Jelineck that Mr Doherty’s condition of hypertension became permanent in 1987, at which time the relevant Table of Maims did not include the condition of hypertension.  

14. The previous 2017 application did not proceed to a hearing, and was taken as dismissed as a result of Mr Doherty withdrawing his application.  At the jurisdictional hearing,  Mr Doherty explained why he had done so:

    …Now I know Mr Dobelsky and company had come up with their response to my application.  But I was under so much pressure with my wife and my own medical problems that I just chickened out.  I had just said no, look I can’t do this anymore.

    And I felt the pressure of that.  And I did realise – I was going to write a letter to the AAT to say that, it says once you withdraw your application, that’s the end of it.  And I wasn’t satisfied with that at all, but yes, what could I do.

15. The Tribunal gained an impression from Mr Doherty’s oral submissions during the hearing that he felt aggrieved because he had been sent the original letter dated 9 March 1990 letter from the Department of Defence stating that liability had been accepted to pay him compensation for an injury (and that that the original letter had no “provisos” in it).  Subsequently, when he requested to be paid a permanent impairment lump sum for his accepted injury, his request was refused. 

16. Mr Doherty told the Tribunal that he did not wish to claim any other type of compensation payments for his injury because he was covered under the DVA (as he was a “totally and permanently incapacitated ex-member” given the benefits under the DVA Gold Card).

    CONCLUSION

17. Regardless of whether this application is dealt with by the General Division or the Veteran Appeals’ Division of the Administrative Appeals Tribunal, after taking into consideration the documents before the Tribunal and the written and oral submissions made by both parties, the Tribunal is not able to exercise its jurisdiction in the way Mr Doherty is hopeful that it might do.    

18. After taking some time to discuss with the parties the issues and background at the jurisdictional hearing as outlined above, it was clear that by Mr Doherty making the present application, he had hoped to be able to re-agitate an issue about not having received a permanent lump sum payment for his accepted condition of hypertension.         It was also revealed that the issue of his entitlement to be paid a permanent impairment lump sum was the subject of a separate decision made after he claimed this payment in 2017, and was not the subject of the “9 March 1990” decision. 

19. The 2017 decision was the subject of a previous application by Mr Doherty to the Administrative Appeals Tribunal in 2017.  However, the 2017 application is now taken to be dismissed due to Mr Doherty’s decision to withdraw that application before it was determined by the Tribunal. 

20. This Tribunal considers that it is not open for Mr Doherty to seek to re-agitate the issue concerning the payment of a permanent impairment lump sum to him in the context of determining the present application.  The present application seeks review of the “9 March 1990” decision.  The “9 March 1990” decision does not make any reference to a claim by Mr Doherty to be paid a permanent impairment payment.   Further, Mr Doherty confirmed at the jurisdictional hearing on 17 July 2019 that he wanted the “9 March 1990” decision to stand and accepted that it was made in his favour.  Accordingly, there is no point in this Tribunal undertaking a review of this decision.  Given the circumstances, it would be a waste of time for both parties and the Tribunal.  

21. The Tribunal is able to understand why Mr Doherty feels aggrieved given his interpretation of the messages conveyed to him in the “9 March 1990” letter he received about his claim. However, given the matters set out in these Reasons for Decision, the Tribunal considers that his application is misconceived. The Tribunal is not able to achieve for Mr Doherty what he is seeking to achieve, even if this Tribunal were to grant him an extension of time to lodge the present application and then, to decide it completely in his favour. In the circumstances, this application is dismissed under s 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 (AAT Act).

22. At the jurisdictional hearing, the Tribunal considered whether it was open for Mr Doherty to make an application seeking reinstatement of his previous 2017 application as it dealt with the specific issue that he remained aggrieved about, namely, whether he should be paid lump sum permanent impairment compensation for his condition of hypertension.    

23. Pursuant to s 42A(1B) of the AAT Act, the Tribunal constituted to hear the previous 2017 was taken to have dismissed that application without proceeding to review of the decision. Subsections 42A(8) to (10) set out a number of provisions which allow for an application to be made to reinstate an application which has been dismissed in specified circumstances. Relevantly, s 42A(8) provides that a party (other than the applicant) may apply for reinstatement if an application is dismissed under s 42A(1B). However, Mr Doherty was the applicant in the previous 2017 application. Accordingly, s 42A(1B) does not allow him to make an application for reinstatement. Further, s 42A(10) does not apply as no error was made by the Tribunal in dismissing the previous 2017 application. Unfortunately and as explained at the jurisdictional hearing, the Tribunal considers that the option of Mr Doherty applying for reinstatement of the previous 2017 application is not open to him.

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28.     I certify that the preceding twenty three (23) paragraphs are a true copy of the written reasons for the decision herein of Member K Parker.

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

Associate

Dated:  6 September 2019

Dates of hearing (by telephone):       17 July 2019

Advocate for Applicant:  Self-represented  

Advocate for Respondent:                 Mr Lazarus Dobelsky

Solicitor for Respondent:                   Moray & Agnew