Phillips and Military Rehabilitation and Compensation Commission
[2005] AATA 515
•28 April 2005
|
DECISION AND REASONS FOR DECISION [2005] AATA 515
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1360
GENERAL ADMINISTRATIVE DIVISION )
Re: NEIL PHILLIPS
Applicant
And: MILITARY REHABILITATION & COMPENSATION COMMISSION (MRCC)
Respondent
DECISION
Tribunal Professor I. Shearer, Senior Member
Dr. I. Alexander, Member
Date 28 April, 2005.
Place Sydney
DecisionFor the reasons given orally at the conclusion of this hearing, the Tribunal affirms the decision under review.
[SGD] Professor I. Shearer
Senior Member
CATCHWORDS
COMPENSATION – leading aircraftsman – limitation of movement - lump sum compensation - permanent impairment – RAAF base – spine-thoraco-lumber – training exercise - upper thoracic back condition – work related injury
CATEGORY OF LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 24(5) and 28
REASONS FOR DECISION
28 April 2005 Professor I Shearer, Senior Member
Dr. I Alexander, Member
At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefore were stated orally. The Applicant pursuant to sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Auscript, the
Commonwealth Reporting Service.
The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal’s decision.
I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of :
Professor I Shearer, Senior Member
Dr. I Alexander, Member
Signed : ………………………………………………..
Associate
Date of Hearing 27 April 2005
Date of Decision 28 April 2005
Representative for Applicant Unrepresented
Counsel for Respondent Mr. Geoffrey Johnson
ADMINISTRATIVE APPEALS TRIBUNAL
By PROFESSOR I. SHEARER, QC, Senior Member, and DR I. ALEXANDER, Member
No N2004/1360
PHILLIPS and MILITARY REHABILITATION AND COMPENSATION COMMISSION
SYDNEY, THURSDAY, 28 APRIL 2005
REASONS FOR DECISION
The Tribunal, constituted by Senior member I.A. Shearer and Member Dr. I. Alexander, having considered the application for a review of the decision of the Commission rejecting the applicant's claim for lump sum compensation under the Safety Rehabilitation and Compensation Act (SRCA), has decided that the decision should be affirmed.
The applicant is a member of the Royal Australian Air Force in the rank of Leading Aircraftsman. He was injured on 5 February 2003 in the course of a training exercise at the RAAF base in Richmond, New South Wales, when a heavy backpack fell on his forearm. As a result of this injury he has suffered continuing pain, discomfort and limitation of movement. He states that his social relationships and general enjoyment of life have also been affected as a result.
He has been examined by a number of doctors including three specialists. His claim for lump sum compensation for permanent impairment for an upper thoracic back condition was rejected by the delegate SCRA in a determination dated 27 May 2004 on the ground that the medical report of Dr McGee Collett, one of the specialist doctors, to whom he had been referred, had assessed the applicant's permanent impairment at 5 per cent. Having regard to table 9.6, that is Spine Thoraco-Lumbar of the Comcare Guide, given statutory force under sections 24(5) and 28 of the Act, which requires that a showing of whole of person impairment of 10 per cent or more is required for lump sum compensation, it was determined that the applicant's claim must fail. That determination was affirmed by the Commission in a decision dated 1 September 2004. The decision also took into account the opinion of Dr Philip Vecchio, a specialist rheumatologist, who assessed the degree of whole person impairment also at 5 per cent. The Commission noted that the applicant had not furnished any medical report assessing impairment at 10 per cent or higher.
The applicant has brought the present proceedings for review by the Tribunal of the decision of the Commission of 1 September 2004, a decision which is reviewable under the Administrative Appeals Tribunal Act 1975. The applicant appeared in person unassisted by counsel. The respondent was represented by Mr G. Johnson. The hearing was held on 27 April 2005 and the decision handed down today 28 April.
The applicant contended before the Tribunal that the correct degree of his impairment lies between 10 and 30 per cent. The only medical evidence available to support this contention is the outpatient clinical record entry by the Air Force Medical Officer Dr Davis in November 2003 which noted a decreased thoracic rotation two-thirds of normal. Dr Davis did not, however, make any assessment or statement regarding the degree of permanency of the condition.
This contention must be viewed in the light of the three medical reports that did make an assessment of the permanency of the applicant's condition under the applicable Comcare guideline. Dr James Evans, an orthopaedic surgeon, gave an assessment on 16 October 2003 based on his then current finding that the applicant:
...does have some restriction of spinal movement. I would say that he has 5 per cent whole person impairment as a result of the injury of 7 February 2003.
The same assessment of 5 per cent whole person impairment was given by Dr Martin McGee Collett, a neurosurgeon, on 17 May 2004 and by Dr Philip Vecchio, a rheumatologist, on 5 August 2004.
The applicant attacked these assessments before the Tribunal claiming that they were procured under pressure from the Commission and the Department of Veterans Affairs who were determined to defeat his application for compensation. He alleged in particular that the figure of 5 per cent appearing the assessment of Dr McGee Collett was not in the handwriting of the doctor but had been inserted by Mr John Tattersall, the New South Wales manager of the Military Compensation and Rehabilitation Services (MCRS). In a letter addressed to Phillips Fox, solicitors acting for the respondent, dated 23 February 2005 and admitted into evidence without objection by the applicant Dr McGee Collett expressly confirmed that the handwritten entry recording his assessment of 5 per cent permanent impairment was in his own hand and recorded his true view.
The author of the most recent medical report, Dr Vecchio, was called to give evidence by telephone. In answer to Mr Johnson Dr Vecchio stated that he had not been asked by anyone to reach a certain result. He had seen the previous reports. He confirmed h is assessment of 5 per cent permanent impairment. The applicant cross-examined Dr Vecchio but did not pursue the issue of alleged pressure to reach a predetermined result.
A number of other issues were raised by the applicant in an effort to demonstrate bias, ill-will and bad faith on the part of the authorities handling his claim and on the doctors to whom he had been referred. It is unnecessary to detail these some of which were described by counsel for the respondent as scurrilous. The Tribunal finds that there is no credible evidence to support them and that they lack any substance.
The Tribunal finds that the medical evidence is all one way. The applicant undoubtedly suffered a work-related injury and is permanently impaired as a result. The only question for determination in these proceedings is the degree of impairment having regard to the applicable guideline. However much one must have sympathy for the applicant in his pain the Tribunal cannot find a basis in the evidence for compensation under section 24 of the Act nor grounds for setting aside or remitting the decision under review.
The Tribunal reserves the right to amplify these reasons for decision in writing at a later time if it becomes necessary to do so.
0
0
0