Doherty and Military Rehabilitation & Compensation Commission

[2011] AATA 234

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 234

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/2127

GENERAL ADMINISTRATIVE DIVISION		)
Re		Mr Patrick Doherty

Applicant

And Military Rehabilitation & Compensation Commission

Respondent

DECISION

Tribunal M D Allen, Senior Member

Date              8 April 2011

PlaceSydney

Decision The decision under review is AFFIRMED.

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

M D Allen, Senior Member  

CATCHWORDS

COMPENSATION:  Veterans’ Affairs:  Application of Guide to Determining Impairment and Compensation (GARPM). Respondent correctly applied Chapter 25 of Guide.  Decision under review affirmed.

LEGISLATION

Military Rehabilitation and Compensation Act 2004, s 67, 68.

Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004, s13.

Guide to Determining Impairment and Compensation (Instrument No.M9 of 2005), Chapter 25.

CASES

James v Military Rehabilitation and Compensation Commission (2010) 186 FCR 134

REASONS FOR DECISION

8 April 2011 M D Allen, Senior Member

1.      By this application made 13 May 2009 the Applicant sought review of a reviewable decision made by the Respondent on 12 March 2009.

2. The reviewable decision and a subsequent letter dated 12 May 2009 raised issues regarding the interpretation of section 68 of the Military Rehabilitation and  Compensation Act 2004 (“MRC Act”) and section 13 of the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 (“CTP Act”)

3. Section 68 MRC Act states:

“(1)  The Commonwealth is liable to pay compensation to a person if:

(a)  the Commission has accepted liability for one or more service injuries or diseases (the compensable condition ) of the person; and

(b)  the Commission is satisfied that:

(i)  as a result of the compensable condition, the person has suffered an impairment; and

(ii)  the impairment is likely to continue indefinitely; and

(iii)  the person's compensable condition has stabilised; and

(c)  a claim for compensation in respect of the person has been made under section 319.

Note 1:       The impairment must constitute a minimum number of impairment points for compensation to be payable (see sections 69 and 70). However, the impairment points from more than one service injury or disease can be combined to make up that minimum number.

Note 2:       This subsection might also be affected by sections 73 (indefinite impairments) and 389 (choice to institute action for damages).

(2)  The Commission must determine:

(a)  the degree of impairment suffered by the person as a result of the compensable condition; and

(b)  the date on which the person became entitled to compensation under this section by satisfying paragraph (1)(b) and sections 69 and 70 (if applicable).”

Whereas section 13 CTP Act states:

“(1)  This section applies if:

(a)  a claim is made under section 319 of the MRCA in respect of a person who also has:

(i)  a separate war‑caused or defence‑caused injury or disease (within the meaning of the VEA) (the old injury or disease ); or

(ii)  a separate injury or disease (within the meaning of the SRCA) (the old injury or disease ); or

(b)  a claim is made under section 319 of the MRCA in respect of an aggravation of, or a material contribution to:

(i)  a war‑caused or defence‑caused injury or disease of a person (within the meaning of the VEA) (the old injury or disease ); or

(ii)  an injury or disease of a person (within the meaning of the SRCA) (the old injury or disease );

or a sign or symptom of such an injury or disease.

(2)  The Commission must determine the impairment points constituted by the impairment suffered by the person from the old injury or disease using the guide under section 67 of the MRCA.

(3)  For the purposes of determining under the MRCA the number of impairment points constituted by an impairment suffered by a person, the Commission must count the impairment points determined for the old injury or disease under subsection (2) towards the person's total impairment points.

(4)  The Commission may include in the guide under section 67 of the MRCA one or more methods of working out the amount of compensation a person is entitled to under Part 2 of Chapter 4 of the MRCA (permanent impairment) for the service injury or disease. A method may (but does not have to) include a method of offsetting payments made to the person under the VEA or the SRCA in respect of the old injury or disease.”

4.       As pointed out in James v Military Rehabilitation and Compensation Commission (2010) 186 FCR 134 at paragraph 21, the MRC Act and the CTP Act are to be read as one.

5.      The parties agreed that this matter should be heard “on the papers” and it has been allocated in my list.  At the outset I will state that I would have been materially assisted by oral argument from the parties, and a party’s desire to save costs should not be permitted to subordinate the Tribunals ability to have issued fully explained to it and to be able to fully canvass arguments, particularly of statutory interpretation, with the parties.

6.      The reviewable decision of 12 March 2009 considered the degree of permanent impairment for the compensable conditions of:

Aggravation of osteoarthrosis – left knee;

Aggravation of internal derangement –left knee;

Tear of supraspinatus tendon – left shoulder;

Anterior labral tear – left shoulder;

Infraspinatus and subscapularis tendinosis – left shoulder;

and determined that the Applicant suffered a permanent impairment as a result of his compensable conditions and that the degree of impairment was 26 points.  The delegate also determined that the Applicant had an overall lifestyle rating of 2.

7.      Apparently the parties agree that the assessments of the Applicant’s degree of whole person impairment and impairment points are not in issue.  The dispute before me concerns the actual amount of compensation payable to the Applicant.

8.      As stated in a letter to the Applicant dated 12 May 2009:

“Since the original primary determination dated 12 November 2008 you have received a permanent impairment payment of $30,455.34 for your right shoulder under the Safety, Rehabilitation and Compensation Act 1988.

This amount now needs to be converted to a periodic payment and deducted from the gross entitlement to determine the net periodic payment payable to you under the MRCA...”

9. Notwithstanding various extrinsic material relied upon by the Applicant, the matter before me, is as I see it, a matter of applying s68 MRC Act and s13 CTP Act in the light of the Full Federal Court decision in James supra.

10. Section 67 of MRC Act allows the Military Rehabilitation and Compensation Commission (“MRCC”) to determine a guide for assessing a person’s level of impairment. The validity of this Guide is not in issue in these proceedings.

11.     Chapter 25 of the said Guide (namely the Guide to Determining Impairment and Compensation; being Statutory Instrument M9 of 2005) provides:

“This Chapter deals with situations where an injury or disease (the condition) has been accepted under the VEA or the SRCA before a claim is made under the MRCA.  The claim under the MRCA may be for a new condition unrelated to the first or for an aggravation of the pre-existing condition.  The method to deal with amounts of compensation already paid for the condition and the amount due under the MRCA now or later is described below.

Chapter 25 of the Guide then adds:

“A claim made under section 319 of the MRCA may result in liability for an injury or disease being accepted and compensation payable.  Where a person entitled to a payment under MRCA in respect of permanent impairment was or is paid a lump sum for permanent impairment under the SRCA or liability for a condition accepted under the SRCA the combined impairment must be determined under the MRCA using this Guide.  An accepted liability under the SRCA is referred to as the old injury or disease.

…

The impairment resulting from any old injury or disease must be determined using this Guide as at the date of MRCA determination.  The points so derived for the old injury or disease must then be combined using the combined impairment table to determine the overall impairment assessment for the purpose of the MRCA.

…

The SRCA lump sum converted to a period payment, is subtracted from the MRCA periodic payment to get the net MRCA periodic payment.”

12.     The Full Court of the Federal Court in James supra said at paragraph 41 that there was no doubt that the introduction of the provisions of Chapter 25 of the Guide was not beyond the real exercise of power conferred by the CTP Act.

13. As far as I can see the Respondent, as set out in the letter dated 12 May 2009, applied Chapter 25 of the Guide to Impairment as it was required to do pursuant to section 13 CTP Act. The decision under review is therefore AFFIRMED.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen.

Signed:         ............[sgd].....................
  K. Lynch, Associate

Dates of Hearing on the Papers     30 March 2011
Date of Decision        08 April 2011
Solicitor for the Applicant                Mr B Mason, Slater & Gordon
Solicitor for the Respondent           Ms E Baggett, DLA Phillips Fox