Phillips and Military Rehabilitation and Compensation Commission (Compensation)

[2021] AATA 2276

Phillips and Military Rehabilitation and Compensation Commission (Compensation) [2021] AATA 2276 (21 June 2021)

Division:VETERANS' APPEALS DIVISION

File Number(s):      2020/6098

Re:Kenneth Phillips

APPLICANT

AndMilitary Rehabilitation and Compensation Commission

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:21 June 2021

Date of written reasons:        14 July 2021

Place:Sydney

The Tribunal has jurisdiction to calculate the overall impairment rating when reviewing the decision made by the Veterans’ Review Board on 23 September 2020.

.....................................[sgd]...................................

Mrs J C Kelly, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – review of decision of the Veterans’ Review Board – scope of review – whether the Tribunal has jurisdiction to calculate the overall impairment rating for the purposes of Chapter 25 of GARP M – Tribunal has jurisdiction to calculate overall impairment rating

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s43

Military Rehabilitation and Compensation Act 2004 (Cth) s 74

SECONDARY MATERIALS

Guide to Determining Impairment and Compensation 2016

WRITTEN REASONS FOR DECISION

Mrs J C Kelly, Senior Member

14 July 2021

1. Mr William Forsbey JP appeared on behalf of Mr Phillips, the Applicant in the proceedings, to argue that the Tribunal does not have jurisdiction to determine the overall impairment rating with respect to the Applicant’s claim for permanent impairment (PI) compensation.

2. The reviewable decision was made by the Veterans’ Review Board (VRB) on 23 September 2020 to set aside the determination made by the Military Rehabilitation and Compensation Commission (the Respondent) on 21 February 2020 and in substitution determined that the compensation factor was 0.476 and that compensation was payable from 26 February 2019 pursuant to s 74(2) of the Military Rehabilitation and Compensation Act 2004 (MRCA).

3. The application for review stated:

   We disagree with the Veterans’ Review Board treatment of conditions accepted under the Veterans’ Entitlements Act 1986 as Warlike/Non-warlike when being assessed under Chapter 25 of GARP M.

4. Mr Forsbey and Ms Ginnane, the Respondent’s representative, agreed that the relevant document is the Guide to Determining Impairment and Compensation 2016 (GARP M).  

5. The issue identified in the application for review has been resolved between the parties.  However, the Respondent raised another issue which has led to this hearing, the calculation of the overall impairment points pursuant to s 74(2) of the MRCA and Chapter 25 of GARP M.

6. Mr Forsbey set out his position in an email dated 20 May 2021:

   The accepted combined impairment points for Mr Phillips is 54 points as awarded in a VRB decision dated 04/02/2020 (T-documents Folios 416-423). This decision was never contested by the Commission and was the basis of their PI determination dated 21/02/2020. This determination was the subject of an appeal to the VRB in that the compensation factor had been incorrectly assessed. The VRB decision dated 23/09/2020 set aside the determination dated 21/02/2020 and substituted a new compensation factor. However, in their decision the VRB still treated VEA conditions as Warlike/Non-Warlike based on DVA policy. This VRB decision was appealed to the AAT on 06/10/2020. If the respondent now disagrees with the assessed impairment points, they should have appealed the VRB decision dated 04/02/2020. It is not within the scope of this appeal now change the impairment points.

7. The Respondent provided written submissions setting out its argument in response.  It included a summary of the history of the Applicant’s claims going back to 2015.

8. During the hearing, I discussed their different approaches with Mr Forsbey and Ms Ginnane.  The regulatory scheme and decision-making process are very complex.

9. Ms Ginnane made clear that the Respondent was not arguing about the impairment points attributed for each condition.  The argument is about how those impairment points are combined.  She conceded that the impairment points for each condition are as found by the VRB in its decision dated 4 February 2020.

10. We discussed the steps set out in Chapter 25 of the GARP M for assessing the total amount of MRCA PI compensation payable. It provides seven steps.  It is the first with which the parties were concerned in this application:

    Step (1) Use GARP M to assess, as at the date of the MRCA determination the combined effect of:

    (a) all MRCA accepted conditions; and

    (b) any VEA accepted conditions and any SRCA accepted conditions which were accepted conditions on the date the person claimed MRCA PI;

    to work out the resulting compensation that would notionally be payable under MRCA.

11. Ms Ginnane and Mr Forsbey each explained their respective calculations following those steps.  They agreed that it was necessary to use the combined values table in Chapter 18 of the GARP M.

12. Another difference of opinion between the parties was whether the Combined Impairment Report dated 21 February 2020 was correct.  I made a direction that on or before 12 July 2021, the Respondent is to file and serve any medical evidence leading to the apportionment of 20/80 for Resting Joint Pain between two conditions, being Cervical Spondylosis (VEA) as 1 point and Acceleration Of Degenerative Changes In The Lower Lumbar Spine Caused By Hyper-extension Injury (DRCA) as 4 points.

13. Returning to the substantive matter to be determined, for the purposes of this case, subsection 43(1) of the AAT Act provides that the Tribunal may exercise all the powers and discretions that are conferred by the MRCA on the person who made the decision.  The decision was made pursuant to s 74(2) of the MRCA.  In my view the tribunal would not be exercising its jurisdiction appropriately if it limited itself to the matters to which Mr Forsbey has referred which have been resolved.  The Tribunal has jurisdiction to decide how the individual impairments determined by the VRB in its decision of 4 February 2020 are combined for the purposes of determining the compensation payable according to s 74(2) of the MRCA.

    Decision

14. The Tribunal has jurisdiction to calculate the overall impairment rating when reviewing the decision made by the Veterans’ Review Board on 23 September 2020.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

...................................[sgd].....................................

Associate

Dated: 14 July 2021

Date(s) of hearing:	21 June 2021
Advocate for the Applicant:	Mr William Forsbey
Solicitors for the Joined Party:	Ms Victoria Ginnane, Moray & Agnew