Hogbin and Military Rehabilitation and Compensation Commission - [2007] AATA 1187

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1187
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/406

GENERAL ADMINISTRATIVE DIVISION )

Re GARY HOGBIN

Applicant

And

MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Senior Member, Mrs Josephine Kelly & Member, Dr Ion Alexander.
Date29 March 2007
PlaceSydney

Decision
1. The reviewable decision is set aside and the matter is remitted for reconsideration with the direction that that reconsideration occur after Mr Hogbin has been referred to an appropriately qualified treating spinal surgeon who can give proper consideration to his situation, and advice as to his treatment options.

2. In our opinion, it follows that the MRCC pay Mr Hogbin’s costs of these proceedings pursuant to s 67(9) of the Safety, Rehabilitation and Compensation Act 1988. We will grant the MRCC 7 days in which to apply to the Associate to Senior Member Kelly to argue this matter. Otherwise, the order as proposed will be made.

..................[sgd]........................
Presiding Member
Senior Member, Mrs Josephine Kelly

CATCHWORDS
WORKER’S COMPENSATION – claim for further permanent impairment for back injury – issue whether impairment permanent – held these proceedings are premature – held appropriate medical consideration not given to Applicant’s situation – matter remitted for reconsideration.
CASES
Martin v Australian Postal Corp (1999) 29 AAR 420
Filla v Comcare Australia (2001) 115 FCR 144
Comcare v Filla (2002) 67 ALD 24
LEGISLATION
Sections 4(1), 14, 24(2), 67(9) Safety, Rehabilitation and Compensation Act 1988
REASONS FOR DECISION

Senior Member, Mrs Josephine Kelly & Member, Dr Ion Alexander.
Introduction
1.      Mr Gary Hogbin is a serving member of the Royal Australian Air Force (RAAF). He suffered an injury to his back on 6 July 2001 for which liability was accepted pursuant to s 14 of the Safety Rehabilitation and Compensation Act 1988 (“the SRC Act”). A determination was made on 12 February 2003 to accept 10% permanent impairment of the back pursuant to Table 9.6.   These proceedings are concerned with Mr Hogbin’s claim dated 5 April 2005 for further permanent impairment of his “back” (T24). The reviewable decision dated 2 February 2006 affirmed an earlier decision denying liability.
2.      For the reasons that follow, we set aside the reviewable decision and remit the matter for reconsideration with the direction that that reconsideration occur after Mr Hogbin has been referred to an appropriately qualified treating spinal surgeon who can give proper consideration to his situation, and advice as to his treatment options.
Background
3.      The initial acceptance of liability was for posterior radial tear with nuclear protrusion at L4/5 without canal or foraminal stenosis; L5/S1 broad base disc protrusion without neurological compromise.
The case for Mr Hogbin
4.      We heard oral evidence from Mr Hogbin and also had a written statement prepared by him. His case relied on evidence from Dr Bleasel, neurosurgeon, who provided a medico-legal opinion.   We had three reports from Dr Bleasel, and also oral evidence when he and Dr O’Neill, consultant neurologist, gave evidence concurrently. Relevantly, Dr Bleasel’s opinion was…

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: Hogbin and Military Rehabilitation and Compensation Commission [2007] AATA 1187
Case: [2007] AATA 1187
Decision Date: 29 March 2007

CaseChat Overview and Summary

In the case of Hogbin v Military Rehabilitation and Compensation Commission, the Applicant sought a review of a decision by the Commission regarding his claim for further permanent impairment due to a back injury. The dispute was heard and determined by the Administrative Appeals Tribunal (AAT). The primary legal issues for the court to decide were whether the impairment claimed by the Applicant was indeed permanent and whether the Commission had properly considered the matter in light of the relevant legislative provisions and guidelines.

The court examined the evidence and submissions presented by both parties, focusing on the criteria for determining the permanency of an impairment under the applicable legislation. The Applicant argued that his impairment was permanent and required further compensation, while the Commission contended that the claim was premature and lacked sufficient medical evidence. The court found that the Commission had not given appropriate medical consideration to the Applicant’s situation, as he had not been referred to a suitably qualified spinal surgeon. This oversight rendered the Commission’s decision premature and necessitated a reconsideration of the matter.

Consequently, the court set aside the reviewable decision and remitted the matter back to the Commission for reconsideration. The court directed that the reconsideration should occur after the Applicant had been referred to an appropriately qualified spinal surgeon who could provide a proper assessment of his condition and treatment options. Additionally, the court suggested that the Commission should bear the costs of the proceedings, subject to any application by the Commission to contest this point within a specified timeframe.

Orders

Orders of the court

1. The reviewable decision is set aside and the matter is remitted for reconsideration with the direction that that reconsideration occur after Mr Hogbin has been referred to an appropriately qualified treating spinal surgeon who can give proper consideration to his situation, and advice as to his treatment options.

2. In our opinion, it follows that the MRCC pay Mr Hogbin’s costs of these proceedings pursuant to s 67(9) of the Safety, Rehabilitation and Compensation Act 1988. We will grant the MRCC 7 days in which to apply to the Associate to Senior Member Kelly to argue this matter. Otherwise, the order as proposed will be made.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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