JEFFREY WADE and MILITARY REHABILITATION AND COMPENSATION COMMISSION - [2010] AATA 173

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 173
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/5927

VETERANS' APPEALS DIVISION )

Re JEFFREY WADE

Applicant

And

MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Deputy President P E Hack SC
Date12 March 2010
PlaceBrisbane

Decision The application is dismissed.
..................[Sgd]............................
Deputy President

CATCHWORDS
WORKERS’ COMPENSATION – entitlement to compensation – application concerning entitlement to compensation for permanent impairment constitutes mere relitigation – application dismissed
PRACTICE & PROCEDURE – effect of earlier decision
Administrative Appeals Tribunal Act 1975 (Cth), s 33
Comcare v Maida [2002] FCA 1284; (2002) 36 AAR 69
Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374
Re Wade & MRCC [2007] AATA 1182
REASONS FOR DECISION

12 March 2010 Deputy President P E Hack SC

Mr Jeffrey Wade served in the Royal Australian Navy between 1960 and 1962. In 1961 he injured his left knee. At that time compensation for employees of the Commonwealth was dealt with by the Commonwealth Employees’ Compensation Act 1930 (Cth) (the 1930 Act).
Subsequently, the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act) and the Safety, Rehabilitation and Compensation Act 1988[1] (Cth) (the 1988 Act) were enacted.
[1] As it is now entitled.
The question that arises is which of these Acts governs Mr Wade’s entitlement to compensation for permanent impairment. He says that it should be the 1988 Act. The respondent, the Military Rehabilitation and Compensation Commission, says that it is the 1930 Act but I was informed that it has paid compensation under the 1971 Act as an act of grace and favour.
The issue arises in this way. Mr Wade first made a claim for compensation for his left knee in June 2000. His claim was disallowed in August 2000 on the basis that his entitlement to compensation was governed by the 1930 Act and that he had not satisfied the requirement of that Act to give timely notice.
In January 2006, Mr Wade requested the Commission to reconsider the earlier determination. It agreed to do so and, by letter dated 21 February 2006, revoked the earlier determination and determined to accept liability for compensation for a condition it described as “swollen left knee, sustained…in June 1961”.
Later that same year Mr Wade was seen by Dr David Walters an orthopaedic surgeon who concluded that “the original injury was some type of damage to the chondral articular surfaces of the knee joint”. He regarded the condition as one that became permanent in June 1961, that is, at the time of the original insult. Dr Walters considered that Mr Wade had a 30% loss of efficient use of his left leg above the knee due solely to his compensable condition. Dr Walters also reported on the presence of “osteoarthritis in all three compartments of the left knee, worse on the medial side”.
On 19 May 2006, the Commission extended its earlier acceptance of liability to include osteoarthritis of the left knee. The Commission determined that Mr Wade was entitled to compensation for permanent impairment in the amount of $13,495.50. In June 2006, Mr Wade requested the Commission to reconsider the earlier determination. On 15 June 2006, the Commission, having regard to the transitional provisions in the 1988 Act and the entitlements that existed immediately prior to the introduction of the 1988 Act, affirmed the earlier determination.
The Commission also determined that Mr Wade had no entitlement to payment for non-economic loss because he had not made a claim for non-economic loss prior to December 2000 when the 1988 Act was amended.
Mr Wade sought a review of the Commission’s decision in the Tribunal. The decision, that is, the decision that Mr Wade was not entitled to compensation for non-economic loss, was affirmed on 28 March 2007[2]. But the process of reasoning that enabled the Tribunal as then constituted to reach that conclusion involved findings that Mr Wade’s injury had become “permanent” in the sense used in the legislation in 1961. Mr Wade did not appeal from that decision.
[2] See Re Wade & MRCC [2007] AATA 1182.
In August 2009, Mr Wade submitted a claim for additional lump sum compensation. He was again seen by Dr Walters. On the basis of Dr Walters’ report, the Commission determined that there was no additional degree of loss of effective use beyond the already accepted 30%. It determined on 13 October 2009 that Mr Wade was not entitled to any additional payment.
The Commission reconsidered this decision on 2 November 2009 and determined to accept that Mr Wade had a 50% loss of efficient use of his left leg and was thus entitled to additional compensation.
These proceedings were commenced on 16 December 2009. Mr Wade seeks a review of the decision of 2 November 2009, not as to the extent of his loss of efficient use, but as to the statutory basis of his claim. He contends that he is entitled to be paid compensation in accordance with the 1988 Act, not the 1971 Act.
In the course of the Tribunal’s ordinary pre-hearing process, the Commission indicated that it sought to have determined as a preliminary issue whether Mr Wade’s application sought to re-litigate matters decided by the Tribunal’s March 2007 decision and whether, for this reason, his proceedings ought be dismissed under s 33 of the Administrative Appeals Tribunal Act.
The power to dismiss proceedings which seek to re-litigate matters already decided is not open to doubt[3]. While on one view of the matter the issue that Mr Wade seeks to raise was not decided in the previous application the very same factual issues were found that Mr Wade would now seek to controvert. Thus, in order to demonstrate an entitlement to compensation for permanent impairment under the 1988 Act Mr Wade would need to controvert the earlier finding that his impairment had become permanent at the time of the original insult. As I understand his argument he does not propose to call any medical evidence to do so. The only evidence that would thus be before the Tribunal would be the reports of Dr Walters that are quite to the contrary. Dr Walters’ evidence is that the permanent impairment occurred in 1961 and, that since then, Mr Wade has experienced a gradual worsening rather than a further or different impairment than that which existed at the commencement date of the 1988 Act.
[3] See Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374.
In Comcare v Maida[4] Mansfield J accepted that the following propositions correctly stated the law:
"20.1 The progression of a disease or gradual worsening of the degree of an impairment does not constitute a new or distinct impairment.
20.2 If there is no change in the underlying patho-physiological condition causing an impairment, any worsening of that impairment will not constitute a new or distinct impairment.
20.3 A significant worsening of an impairment may constitute a new or distinct impairment, but only if there has been a change in the underlying patho-physiological condition, so that there has been a qualitative change to the impairment - that is, the development of a new impairment."
[4] [2002] FCA 1284; (2002) 36 AAR 69, at [28].
Mr Wade does not propose to call medical evidence to contradict the opinion of Dr Walters or to establish any of the matters that might arguably constitute a basis for concluding that he has developed a new impairment since 1988. In these circumstances it would be wrong to require the further expenditure of public monies in pursuit of an application that seeks to re-agitate the correctness of the earlier findings of the Tribunal; findings that I would have thought were inevitable on the evidence before the Tribunal on that occasion.
I would then use the Tribunal’s powers under s 33 to dismiss the application without proceeding to review the decision.
I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed:         ..........................[Sgd]......................................................
  Associate
Date of Hearing  17 February 2010
Date of Decision  12 March 2010
The Applicant  Self-represented
Solicitor for the Respondent     Australian Government Solicitor