Guganovic and Military Rehabilitation and Compensation Commission (Veterans' entitlements)
[2019] AATA 4309
•24 October 2019
Guganovic and Military Rehabilitation and Compensation Commission (Veterans' entitlements) [2019] AATA 4309 (24 October 2019)
Division: VETERANS' APPEALS DIVISION
File Number(s): 2017/6821
Re:Marilyn Guganovic
APPLICANT
AndMilitary Rehabilitation and Compensation Commission
RESPONDENT
Decision
Tribunal:Deputy President B W Rayment OAM QC
Date:24 October 2019
Place:Sydney
The reviewable decision of the Respondent dated 22 September 2017, which affirmed two determinations that determined there was no entitlement to compensation for non-economic loss under s 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), is affirmed.
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Deputy President B W Rayment OAM QC
Catchwords
VETERANS’ APPEALS – Defence-related Claims – applicant surviving claimant – whether applicant was entitled to compensation for non-economic loss after the death of the claimant – whether a determination was made prior to death of claimant – whether Military Rehabilitation and Compensation Commission failed to act with due diligence – decision affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 24, 27, 69
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) ss 24, 27, 55, 61, 62, 109, 111
Cases
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 93 ALJR 629
Loder and Comcare [2004] AATA 1021
Minister for Immigration and Citizenship v SZQOY [2012] FCAFC 131; (2012) 206 FCR 131
REASONS FOR DECISION
Deputy President B W Rayment OAM QC
24 October 2019
The applicant in this matter is the widow of a deceased veteran, who passed away on 10 January 2017.
On 3 April 2016 and also in July 2016, the late veteran had made claims for rehabilitation and compensation for a total of six conditions, including in each case a claim for permanent impairment, which would comprehend a claim under ss 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRCA’). Section 24 refers to a claim other than for economic loss, and s 27 refers to a claim for economic loss, where compensation is payable under s 24 of the SRCA.
After the late veteran’s death, the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) (‘the DRCA’) commenced on 12 October 2017. It applies to current and former members of the Australian Defence Forces with conditions linked to service prior to 1 July 2004. It was agreed between the parties that the DRCA applies to this proceeding. Most of the provisions of the DRCA are in the same or closely similar terms to the SRCA. The respondent was established under the DRCA.
In the case of two of the conditions, the respondent accepted the conditions as compensable. After the veteran’s death, the respondent made payments to the present applicant, who is the late veteran’s widow, under s 24 of the SRCA, in respect of the two conditions. The respondent, by both an original decision and by an internal review decision, refused to make any payment under s 27 of the SRCA for either of those conditions, stating that any such entitlement was terminated at the date of death of the late veteran by force of s 55(4) of the SRCA. Whether that statement is correct as a matter of law is the first issue arising on this review.
It will be convenient to assume that there was no determination or decision to pay the s 27 claims prior to the death of the late veteran, and that consideration of the claim was still being given by the respondent at the veteran’s date of death.
Statutory Background
Section 27 of the DRCA is the source of the veteran’s rights to make the relevant claim. It provides as follows:
27Compensation for non-economic loss
(1)Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, the Commonwealth is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non‑economic loss suffered by the employee as a result of that injury or impairment.
(2)The amount of compensation is an amount assessed by the MRCC under the formula:
where:
A is the percentage finally determined by the MRCC under section 24 to be the degree of permanent impairment of the employee; and
B is the percentage determined by the MRCC under the approved Guide to be the degree of non‑economic loss suffered by the employee.
(3)This section does not apply in relation to a permanent impairment commencing before 1 December 1988 unless an application for compensation for non‑economic loss in relation to that impairment has been made before the date of introduction of the Bill for the Act that inserted this subsection.
The section provides a means for claims for non-economic loss, a sum payable in addition to any compensation payable for economic loss under s 24.
Section 55 provides as follows:
55Survival of Claims
(1)Where a person who is entitled to make a claim for compensation under this Act dies without making a claim, a claim may be made by the person’s personal representative.
(2)A claim is not affected by the death of the claimant after the claim was served.
(3)Section 111 applies in relation to an amount payable under a determination made in respect of a claim referred to in this section as if the deceased person had died after the determination was made.
(4)This section does not apply in relation to a claim for compensation under section 27.
Subsection (1) enables a claim to be made after the death of the claimant by his or her personal representative.
Subsection (2) provides that a claim pending at the death of a person may be pursued after his or her death.
Section 111(1) provides as follows:
111Provisions applicable on death of beneficiary
(1)Subject to this section, where a determination is made that an amount of compensation is payable under this Act to a person and the person dies before the amount is paid, the amount forms part of the estate of the person.
Subsection (3) of s 55 then applies a deeming provision to “a claim referred to in this section”. The deeming provision is “as if the deceased person had died after the determination was made”, so the subsection enlarges upon the benefits conferred by s 111 at least with respect to a claim as “referred to in this section”. As to that category of claim, s 111 applies when a determination to pay is made before death, and subsection (3) deems that determination to have been made before death, even though it was not.
I have concluded that subsection (4) excludes from the benefit of the section any claim for compensation under s 27, with the consequence that none of subsections (1), (2) or (3) applies to a claim made under s 27. That is, it may not be made after death, it is not affected by the statutory declaration in subsection (2) that the claim is not affected by the death of the claimant, and it is not within the class to which a benefit additional to the s 111 benefit is conferred by subsection (3).
However, s 111 operates according to its terms. That is, if a determination was made that a payment should be made under s 27, and it has not been paid prior to the death, the money is payable to the estate by force of s 111.
This result has been reached by earlier decisions of this tribunal, including Loder and Comcare [2004] AATA 1021.
The applicant submitted that on its true construction s 55(4) means that only subsection (1) of the section is excluded, so that, if the claim was made by the late veteran himself, subsections (2) and (3) continue to apply. The language of s 55(4) seems to me to be against the applicant’s submission. It says that “this section does not apply”, not that subsection (1) of this section does not apply.
The Commonwealth statute on its face purports to regulate whether and to what extent rights created by it will survive after the death of the claimant, and the matter must be determined under the DRCA.
An adverse conclusion under s 55 therefore entails that the rights in question do not survive the death of a claimant.
Whether a Determination was made prior to the veteran’s deatH
The next question requiring resolution in this review is whether prior to the date of death, the respondent did determine the s 27 claims made by the late veteran, that is, the matter which I assumed not to be the case when considering the meaning of s 55(4).
More precisely, the question is whether a determination was made prior to the veteran’s death that an amount of compensation is payable. A determination accepting liability alone would not suffice. For s 111 to be engaged, the determination must have been made prior to 10 January 2011, both as to liability and quantum.
The s 37 documents do not include a written record of any determination. Section 109 of the DRCA requires that a determination under the DRCA be in writing. No particular form of written determination is referred to in the DRCA. Section 109 is in the following terms:
109Determinations to be in writing
(1)A determination under this Act shall be in writing
(2)A determination shall be taken to be in writing if it is entered into, or recorded with the use of, a computer.
As to timing, section 61 of the DRCA provides as follows:
61Determinations to be in writing
(1A) The determining authority must consider and determine each claim for compensation under section 14 within the period prescribed by the regulations.
(1)As soon as practicable after a determining authority makes a determination, it shall cause to be served on the claimant a notice in writing setting out:
(a) the terms of the determination;
(b) the reasons for the determination; and
(c) a statement to the effect that the claimant may, if dissatisfied with the determination, request a reconsideration of the determination under subsection 62(2).
(2)This section does not apply in relation to a determination under subsection 16(1) that compensation of an amount equal to the full amount of the cost of medical treatment obtained by an employee is payable if that amount of compensation is payable to a person other than the employee.
At the present time, no regulations have been made as to the time by which determinations have to be made.
Under s 69 of the SRCA one of the functions of Comcare is to make determinations accurately and quickly in relation to claims and requests made to Comcare under the SRCA. Section 69 does not appear in the DRCA.
Section 61(1) requires a determination to be notified as soon as practicable after the determination has been made. The notification of a determination to the claimant must itself be in writing under s 61(1)(a).
The combined effect of s 61 and s 109 seems to be that a determination by the Military Rehabilitation and Compensation Commission (‘MRCC’) is a private act, which it must do in writing. Upon that act being done, the MRCC must comply with s 61 by a different written document, notifying the claimant of the decision and a series of other matters, including its reasons and a statement giving notice of reconsideration rights under s 62(2).
The courts have considered at what point a decision is said to be made of other bodies, such as the (former) Refugees Review Tribunal. The Full Federal Court determined in Minister for Immigration and Citizenship v SZQOY [2012] FCAFC 131; (2012) 206 FCR 131 that the Tribunal did not make a final decision until it notified the applicant of the decision, so that a decision, even one signed by a member, would be revocable before notification. In effect, an unnotified decision was not final.
A different regime seems to affect the MRCC (and the same applies in the case of Comcare). The determination in s 111 seems to me to refer not to any oral decision by one or more officers of the MRCC, but to a decision recorded in writing in the records of the MRCC. Even if the MRCC has not yet complied with the notification requirements contained in s 61, if the claimant then dies after a written determination has been introduced into the records, s 111 will require the claim to be met.
The applicant in this case sought to make a different case. The applicant relied upon the evidence of Mr Mainsbridge, who is a person who assisted the late veteran with his original claim made in April 2016, and later assisted the present applicant after her husband’s death. Mr Mainsbridge impressed me as an honest witness, but it is difficult to match his evidence to the other evidence before me.
Mr Mainsbridge said that he was contacted by a delegate employed by the respondent, Ms Toneya Young, a short time after 4.30 pm on 17 January 2017, that is, a week after the late veteran’s death. He was driving a motor vehicle at the time and received the call on his mobile phone. Because he was driving, he could not make notes of the call. He said that he was told by Ms Young that there was an offer of an amount a little above $130,000, perhaps, $130,600. His witness statement at paragraph 5 had not used the word “offer”. In oral evidence, he said that “section 27” was referred to in the conversation as included in the sum mentioned. It was suggested to him in cross-examination, by Ms Baggett for the respondent, that the figure about which he was told was $135,445, being the total of two amounts, $54,910.45 documented for one of the s 24 payments on 19 January 2017, and $80,535.33 for the other s 24 payment also documented on the same date. But neither payment related to a s 27 entitlement. He said that the figure of $135,445.78 was not the figure given to him, although, as I have said, he could not remember the exact figure that was mentioned.
One problem with the evidence Mr Mainsbridge gave is that a figure of $130,000 or thereabouts cannot have been the total of either s 24 sums or any s 27 sum. The s 27 entitlements calculated for me by the applicant are $37,064.57 and $41,869.24 respectively.
That fact casts real doubt on what Mr Mainsbridge remembers from the conversation.
Mr Mainsbridge also says that he spoke to Ms Young again on 2 February 2017 and she said to him that the figure she expressed to him was no longer available to confirm.
The respondent no longer employs Ms Young. At my request, the respondent made diligent efforts to locate her. Those efforts included contacting the labour hire firm who provided her services to the Military Rehabilitation and Compensation Commission, conducting an electoral roll search and writing to an address indicated there, and attempting to communicate with her by putting a message on her Facebook page. She could not be located.
The respondent’s electronic files include no determination prior to the date of death to pay amounts to the late veteran for s 27 entitlement, and no record of Mr Mainsbridge’s discussion.
Communications by mobile phone while a person is driving may not result in perfect communication.
The other problem about relying upon Mr Mainsbridge’s evidence is that even if an oral decision to make a payment under s 27 counts as a determination (despite s 109 of the DRCA), a communication made on 17 January 2017 is no evidence that the oral determination took place 7 or more days earlier.
In those circumstances, I cannot be satisfied that there was any determination prior to the late veteran’s death that he should be paid any amount under s 27 of the DRCA.
The applicant also sought to make a claim on the basis that the MRCC failed to act with due diligence by determining the claim under s 27 prior to his death. I do not think any such question is properly before me. The questions resolved in the reviewable decision did not extend to any such matter, and I am limited to the questions which were before the decision-maker, as the High Court recently reaffirmed in Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 93 ALJR 629. Such a claim would not be a claim under the statute, in the sense of a claim that the statute authorises to be brought or makes a basis for an entitlement under the DRCA. If the applicant is so advised, it could be asserted in the courts, or failing that, could be the subject of a claim under the Scheme for Compensation for Detriment caused by Defective Administration (the CDDA scheme). It cannot be entertained in this review or by this Tribunal.
For those reasons, the reviewable decision is affirmed.
I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC
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Associate
Dated: 24 October 2019
Date(s) of hearing: 3 September 2018 Date final submissions received: 25 September 2019 Counsel for the Applicant: Mr Timothy Saunders Solicitors for the Applicant: KCI Lawyers Solicitors for the Respondent: Moray & Agnew Solicitors
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