Glendenning and Military Rehabilitation and Compensation Commission - [2006] AATA 1050

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 1050
ADMINISTRATIVE APPEALS TRIBUNAL № V2006/382
GENERAL ADMINISTRATIVE DIVISION

Re: PAUL ASHLEY GLENDENNING
Applicant

And:military REHABILITATION and compensation commission
Respondent

DECISION
Tribunal: Dr K. Breen, Member
Date:5 December 2006
Place:Melbourne
Decision:The Tribunal affirms the decision under review.

(sgd) Dr K. Breen
Member

MILITARY REHABILITATION AND COMPENSATION COMMISSION – irritable bowel syndrome – gastro-oesophageal reflux disease – whether objective signs – signs and symptoms – aggravation or exacerbation – links to employment – permanent impairment - degree of impairment - decision affirmed
Administrative Appeals Tribunal Act 1975
Safety, Rehabilitation and Compensation Act 1988
Glendenning and Comcare [2004] AATA 6
Re Florit and Comcare (2004) 81 ALD 774
REASONS FOR DECISION
5 December 2006  Dr K. Breen, Member
Background
1.      Paul Glendenning (the applicant) was born on 2 May 1962. He enlisted in the Australian army on 18 January 1979. On 19 August 1998 he lodged a claim for rehabilitation and compensation in accordance with the terms of the Safety, Rehabilitation and Compensation Act 1988 (the Act) in respect of a number of conditions. This claim was eventually determined by the Administrative Appeals Tribunal (the Tribunal) on 9 January 2004. It determined that, under s 14(1) of the Act, Comcare (the respondent) was liable to pay compensation to the applicant in respect of gastro-oesophageal reflux disease and irritable bowel syndrome.
2.      On or about the 25 February 2004 the applicant requested that he be assessed for permanent impairment, as a result of those two conditions, for lump sum compensation. In a letter dated 12 April 2005, the Military Compensation and Rehabilitation Service (MCRS) determined that no payment could be made for permanent impairment. The applicant requested a reconsideration of this determination. On 20 July 2005 a delegate of the MCRS affirmed the original determination. On 19 August 2005 the applicant sought review of that decision by the Tribunal.
Hearing
3.      At the hearing the applicant was represented by Mr D. Richards of Counsel. The respondent was represented by Mr C. Clark of Counsel.
Exhibits
4. The Tribunal received into evidence the documents lodged by the respondent under s 37 of the Administrative Appeals Tribunal Act 1975, as well as two exhibits (Exhibits A1 and A2) lodged by the applicant and five exhibits (Exhibits R1-R5) lodged by the respondent.
Issues and Legislation
The bases for the Diagnoses
5.      The medical conditions under consideration at this hearing are those for which the respondent has already accepted liability, namely gastro-oesophageal reflux disease and irritable bowel syndrome. Thus the diagnoses are not at issue. However, it is relevant for the Tribunal to revisit the grounds on which the diagnoses were established, as well as the time that symptoms were first recorded. This is because the Tribunal will need to decide when each diagnosis was first made, when each condition became permanent and when evidence appeared to support the contention that either condition was associated with permanent impairment.
6.      From a careful review of Mr Glendenning's…

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

AGLC: Glendenning and Military Rehabilitation and Compensation Commission [2006] AATA 1050
Case: [2006] AATA 1050
Decision Date: 5 December 2006

CaseChat Overview and Summary

Paul Ashley Glendenning, a former Australian army member, lodged a claim for rehabilitation and compensation under the Safety, Rehabilitation and Compensation Act 1988, relating to gastro-oesophageal reflux disease (GORD) and irritable bowel syndrome (IBS). The Administrative Appeals Tribunal (AAT) previously determined that the Military Rehabilitation and Compensation Commission (the Commission) was liable to pay compensation for these conditions. Glendenning subsequently sought assessment for permanent impairment for lump sum compensation. The Commission refused to pay compensation for permanent impairment, a decision that was affirmed on reconsideration. Glendenning sought a review of the decision by the AAT.

The AAT was required to decide whether the applicant's GORD and IBS were permanent and if there was permanent impairment arising from these conditions. The AAT also needed to determine the degree of permanent impairment, if any, and whether compensation was payable under the Act.

The AAT examined the medical evidence and concluded that GORD and IBS were permanent conditions that had become permanent before 1988. The Tribunal also found that the onset of permanent impairment occurred after 1988, and that the impairment was likely to continue indefinitely. However, the AAT found that there were no objective signs of either condition and, therefore, no anatomical loss or alteration. The AAT applied the approved Guide to the Assessment of the Degree of Permanent Impairment and concluded that the degree of permanent impairment was less than ten per cent. As a result, compensation was not payable under the Act.

The AAT affirmed the Commission's decision not to pay compensation for permanent impairment.

Orders