Donovan and Repatriation Commission - [2001] AATA 268

DECISION AND REASONS FOR DECISION [2001] AATA 268

ADMINISTRATIVE APPEALS TRIBUNAL Nº W2000/315

Nº W2001/222

GENERAL ADMINISTRATIVE DIVISION

Re: ALEXANDER KYLE McGUIRE

Applicant

And: COMCARE

Respondent

DECISION

Tribunal:       Mr B.H. Pascoe, Senior Member
Date:             18 April 2002
Place:            Perth

Decision:The Tribunal affirms the decision under review.

(….sgd B.H. Pascoe….)
Senior Member
COMPENSATION — claim for permanent impairment – cervical spine – whether injury in 1951 resulted in permanent impairment – whether impairment result of congenital degenerative changes – whether impairment permanent prior to 1 December 1988
Safety, Rehabilitation and Compensation Act1988 ss.24, 124
Commonwealth Employees' Compensation Act 1930

REASONS FOR DECISION

18 April 2002 Mr B.H. Pascoe, Senior Member

This is an application to review a decision of the respondent dated 15 May 2001 which affirmed a determination of 31 March 2000 that the applicant was not entitled to a lump sum payment for permanent impairment to his neck and cervical spine.
At the hearing the applicant, Mr A. McGuire, was unrepresented. The respondent was represented by Mr P. Quinlay, of counsel. Evidence was given by Mr McGuire, Dr C. Walkley, a specialist in rehabilitation medicine, and Mr S. Brash, an orthopaedic surgeon.
Mr McGuire enlisted in the Australian Army in London on 31 July 1951 and was discharged in West Australia on 30 July 1957. He said that, in September 1951, he was involved in swimming training. Three soldiers had remained behind in the hut. On return from swimming, Mr McGuire said that he realised someone had opened and searched his personal belongings. He did not report this but suspected two of the three soldiers who had been in the hut. Later, when returning to the hut from guard duty unexpectedly, he found the suspects pilfering from other soldiers' belongings. Again, he did not report his findings but suggested to other soldiers that they check for any missing items. Mr McGuire said that a money belt with some cash and badges of some sentimental value disappeared. A small hammer of his was subsequently seen in the possession of one of his suspects and Mr McGuire said that, on asking for its return, he was attacked and thrown to the ground, hurting his shoulder. He said he put up with the problem for some five to six weeks but, on 1 November 1951, when about to go swimming, he was attacked from behind with an arm about his neck, thrown into the air and landed on his head. He said he had some paralysis in his arms and legs and could not stand without assistance. He was taken to the Regimental Aid Post where he was placed on a stretcher with a heat lamp on his neck. An ambulance then conveyed him to Moorbar Hospital where he stayed overnight under observation for a suspected fracture of the neck. The next day he was taken to Concorde Repatriation General Hospital (Concorde). Mr McGuire said that he was placed on a slanted bed with traction to his head and neck. He…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] AATA 268
Decision Date: 3 April 2001

CaseChat Overview and Summary

In the case of Donovan and Repatriation Commission, the applicant, Alexander Kyle McGuire, sought a review of a decision made by the respondent, Comcare, which denied his claim for a lump sum payment for permanent impairment to his neck and cervical spine. McGuire enlisted in the Australian Army in 1951 and claimed to have sustained an injury during swimming training in September 1951, which led to an attack and subsequent injury to his neck on 1 November 1951. The respondent admitted liability for the injury but denied the claim for permanent impairment.

The primary legal issues the court needed to address were whether the injury sustained by McGuire in 1951 resulted in permanent impairment and, if so, whether that impairment became permanent prior to 1 December 1988. The applicable legislation was the Safety, Rehabilitation and Compensation Act 1988, which governs lump sum compensation for permanent impairment, but with an exception for impairments that were compensable under previous Acts if they became permanent before 1 December 1988.

The court considered the evidence provided by McGuire, Dr. Walkley, a specialist in rehabilitation medicine, and Mr. Brash, an orthopaedic surgeon. The medical evidence presented differing opinions on the extent to which the 1951 injury contributed to McGuire's current condition. Dr. Walkley attributed part of McGuire's condition to the 1951 injury, while Mr. Brash believed that the impairment was due to natural degenerative changes and congenital factors. The court also noted that, under the Guide to the Assessment of the Degree of Permanent Impairment, McGuire's neck condition was assessed to be at least 10% impairment.

In its decision, the court affirmed the decision under review, finding that the injury sustained by McGuire in 1951 did result in some degree of permanent impairment, but that impairment became permanent well before 1 December 1988. The court concluded that the subsequent impairment was due to degenerative changes and congenital factors unrelated to the original injury. As a result, McGuire was not entitled to lump sum compensation for permanent impairment of the cervical spine.

Orders