Sibley and Comcare
[2000] AATA 1136
•6 December 2000
DECISION AND REASONS FOR DECISION [2000] AATA 1136
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q1999/834
GENERAL ADMINISTRATIVE DIVISION )
Re NEIL PHILIP SIBLEY
Applicant
And COMCARE
Respondent
DECISION
Tribunal Mr. D.W. Muller, Senior Member
Date6 December 2000
PlaceTownsville
Decision 1. The Tribunal affirms the decision of the Delegate of Military Compensation and Rehabilitation Service dated 15 June 1999, which determined that there was no causal link between the applicant's coronary artery disease and the period of his service in the Australian Army, not covered by the Veterans' Entitlements Act 1986. 2. The Tribunal has no jurisdiction to adjudicate upon a claim for damages for lost wages for wrongfully being declared medically unfit for Army service and for being discharged from the Army.
...............(Signed)...............................
D.W. MULLER
SENIOR MEMBER
CATCHWORDS
WORKERS' COMPENSATION – circumstances covered by Veterans' Entitlements Act 1986 – Defence Instructions (Army) jurisdiction
Safety, Rehabilitation and Compensation Act 1988: s.5(10)
REASONS FOR DECISION
6 December 2000 Mr. D.W. Muller, Senior Member
The applicant, Neil Philip Sibley, claims to have been wrongfully discharged from the Australian Army on the grounds of being declared medically unfit, in circumstances where he claims that the Army had a duty under the Defence Instructions (Army) to keep him in the Army, pay for his medical care and then redeploy him for approximately a further six years, that is, until he turned 55 years of age. He claims damages for lost wages in the sum of $380,120.60 (less benefits received from the Department of Veterans' Affairs).
The relevant history of the matter is as follows:
(i)Neil Philip Sibley was born on 3 December 1941.
(ii)He joined the Australian Army on 22 February 1965.
(iii)He served for 12 months in Vietnam from May 1966 to May 1967.
(iv)He served at various locations in Australia and Papua New Guinea.
(v)He rose to rank of Warrant Officer 1 (WO1).
(vi)He retired from the Army after 20 years service on 24 February 1985. He thereupon received his DFRDB pension.
(vii)For the four years following his retirement he had no involvement with the Army. He was involved in mariculture.
(viii)In 1989 he was advised that the Army Reserve were seeking the services of senior Army members to assist with the recruitment of Army Reserve members. He applied for one of the positions, had medical and physical tests which he passed and was accepted into the Army Reserve on a full-time basis. He started with the Army Reserve on 24 May 1989 at Townsville.
(ix)During a five mile exercise in 1989, he was stopped by chest pain.
(x)He had a further episode of chest pain whilst playing golf with his son. He was admitted to Muswellbrook Hospital where he was diagnosed with angina pectoris.
(xi)Later a stress ECG was performed at Townsville Hospital. The results of which were inconclusive because Mr. Sibley had to cease exercising after only 30 seconds.
(xii)In 1990 he had a series of coronary angiography tests which culminated in triple by-pass heart surgery in December 1990.
(xiii)He was discharged medically unfit on 31 August 1990.
(xiv)He has continued to have episodes of chest pain. In 1997 he had treatment for recurrent angina when minor surgery was performed on one of his coronary arteries. On 14 February 1998 he was admitted to Bundaberg Hospital where he had a cardiac arrest and was resuscitated. He was then transferred to Prince Charles Hospital for further treatment.
Mr. Sibley's heart condition has been accepted by the Department of Veterans' Affairs (DVA) as war-caused pursuant to the provisions of the Veterans' Entitlements Act 1986 (the VEA). The acceptance was based on the hypothesis that Mr. Sibley increased his smoking habit whilst on service in Vietnam and that smoking is a recognised risk factor in the development of ischaemic heart disease. He was granted the Special Rate pension in 1994. The VEA contains very generous provisions relating to the standard of proof needed to link disabilities with service in cases where service personnel have been engaged in operational service.
Mr. Sibley's claim is most clearly set out in his letter dated 30 July 1999, in which he said:
"My grounds for seeking lump-sum compensation for loss of earnings, is that I had been discharged as medically unfit for service so that my pending coronary by-pass operation could be paid for by Veterans Affairs instead of having to be paid out of the Medical Corps annual budget as allocated by the Department of Defence for that Corp, (refer annex J), this decision caused me great personal stress and trauma as it denied me the right and opportunity to serve to my 55th birthday (3 Dec 1996) giving me 30 years service and enabling me to financially secure my future (refer pages 3 & 6 annex M) even though other members of equal rank and service received the same coronary by-pass surgery and continued to serve in their chosen career, one notable example is a good friend and current Regimental Sargeant Major (RSM) of the 1st Division (Warrant Officer Class One, Dale Sales) who fills a very responsible and high profile position, although we were in different career streams the DI(A)'s and doctrine is the same for all full time serving soldiers, the decision to discharge me as medically unfit to serve out the remainder of my career whilst allowing others to do so, is at best "penny pinching" in the extreme, and no doubt discriminatory in any context of the meaning and requests to be treated in service were denied, apparently for monetary reasons. (refer annex J).
He relies on the following Defence Instructions (Army),
PERS 159-1
"41. During Service. The following action is to occur when a member falls below the minimum standard for the member's employment or corps:
a.Soldiers. When the PES of a soldier falls below the minimum standard for employment the soldier is to be retrained and/or reallocated to another corps or discharged in accordance with DI(A) PERS 116-5.
…….
MEDICAL WAIVERS
Waivers for Serving Members
45. DI(A) PERS 135-2 (to be issued) details the circumstances under which the Chief of Army (CA) will offer waivers to serving members who are classified CLASS 3. Waivers may be granted by CA through the following delegates:
a.CO SCMA for Australian Regular Army (ARA), Regular Army Supplement (RAS), Australian Individual Emergency Force (AIEF) and General Reserve – Special Conditions: Ready Reserve (GRSR) soldiers;
b.DICM-A for ARA, RAS, AIEF and GRSR officers; and
c.Regional Delegate for Gres and IARes officers and soldiers.
46. Such waivers should only be granted where the member has completed training and is capable of performing most duties required by the employment the member is in or about to enter, and where there is a Service need for the waiver to be granted. When making a decision to grant a waiver the approving authority must consider the following factors:
a. the needs of the Service,
b. the structure and staffing levels of the member's employment, and
c. the member's medical prognosis and future career potential."
…….
PERS 124-12
"Reclassification as Medically Unfit44. Temporarily Medically Unfit (TMU). When a member is classified as TMU for any duty because of some injury or disease which is remediable, or partly remediable with treatment:
a.the member is to undergo, as soon as possible, any medical treatment which is needed; and/or
b.the hospital or Regional DMS/SMO is to take action in accordance with current Army policy covering Military Financial Regulation 16 if the member's absence from duty for a continuous period is likely to exceed six months.
45.Tentative Medically Unfit (MU(Tent)). Where a RMB finds a member to be MU (Tent), all documents are to be forwarded to the Regional SMS/SMO for confirmation. The document must include a statement from the examining MO or specialist in support of their assessment of MU(Tent). This statement will be used by SCMA, Director of Officer Career Management-Army (DOCM-A) or Army Personnel Agencies (APA) to inform the member of the details of the assessment. The regional DMS/SMO is responsible for raising a Form PM 64 notifying either SCMA, DOCM-A or APA that the member is MU(Tent).
46.Welfare Action. Immediately a member is confirmed as being either MU (Tent) or TMU the Regional DMS/SMO is to ensure that appropriate action is taken to advise and assist the member with respect to their rights under the terms of the Compensation (Australian Government Employees) Act, DFRDB Act, Repatriation Act, Social Services Act and Army Health Benefits Society.
……
FINAL MEDICAL BOARD
Function
50.The function of a FMB is to determine the PULHEEMS assessment of a member about to separate from the Service.
Definition
51.In this section:
a.a 'member' means an officer or soldier of the Regular Army, an officer or soldier of the Ares on FTS and philanthropic representatives attached on FTS. Ares members not on FTS are dealt with elsewhere in this Instruction.
Date of Board
52.When the date for discharge is known or can be anticipated, the FMB is to be conducted at least eight weeks but no more than twelve weeks before that date.
……
Discharge for Medical Reasons
60.Members Boarded for Discharge for Medical Reasons Confirmed MU. When a member has been boarded for discharge for medical reasons and the finding of MU is confirmed the following action is to be taken:
a..…
b.when a requirement for continuing medical care after discharge exists the DGAHS Delegate is to arrange, with the member's consent, for treatment after discharge by an appropriate medical agency, whether a hospital or a civilian medical practitioner; and"
When Mr. Sibley raised the question of compensation for his heart condition with officers of the Military Compensation and Rehabilitation service, he was told that he could not succeed on a claim under the Safety, Rehabilitation and Compensation Act 1988 (the SRCA), as amended by the Military Compensation Act 1994, based on his Vietnam service because he had an entitlement under the VEA for his Vietnam service. Subsection 5(10) of the SRCA provides:
"5(10) [Defence Force exclusions] Subject to subsections (10A), (10B) and (10C), this Act does not apply in relation to service of a member of the Defence Force in respect of which provision for the payment of pension is made by:
(a) the Veterans' Entitlements Act 1986; or"
The officers of the Military Compensation and Rehabilitation service suggested to Mr. Sibley that he should try to claim that his heart condition was due to stress of service, or due to inappropriate medical treatment whilst in the Army after Vietnam, that is, during a period of service not covered by the VEA. No doubt they saw those avenues as Mr. Sibley's only chance for compensation, and they were attempting to be of assistance to him.
Mr. Sibley made the suggested applications. However, the medical evidence was solidly against the claims and they have come to nothing.
Mr. Sibley has re-activated his claim that he was badly treated by the Army, in that the Army failed to follow their own Defence Instructions. He claims damages as a result thereof.
The decision that Mr. Sibley's heart condition was not caused by his Army service, post Vietnam, is affirmed.
The Tribunal does not have jurisdiction to entertain a claim for damages for an alleged breach of Defence Instructions (Army).
I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. D.W. Muller, Senior Member.
Signed: .....................................................................................
R. Hayes, AssociateDate/s of Hearing 6 December 2000
Date of Decision 6 December 2000
Applicant Mr. Sibley, himself
Counsel for the Respondent Mr. P. BickfordSolicitor for the Respondent Phillips Fox
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