The Estate of the Late Judith Hartikainen and Military Rehabilitation and Compensation Commission (Compensation)
[2022] AATA 3832
•17 November 2022
The Estate of the Late Judith Hartikainen and Military Rehabilitation and Compensation Commission (Compensation) [2022] AATA 3832 (17 November 2022)
Division:VETERANS' APPEALS DIVISION
File Number: 2022/2106
Re:The Estate of the Late Judith Hartikainen
APPLICANT
AndMilitary Rehabilitation and Compensation Commission
RESPONDENT
Decision
Tribunal:Member D Mitchell
Date:17 November 2022
Place:Brisbane
The Tribunal dismisses the application for review pursuant to section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth).
.......................[SGD]........................
Member D Mitchell
Catchwords
PRACTICE AND PROCEDURE – role of the Tribunal – application for dismissal pursuant to section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) – claim for permanent impairment – operation of the transitional provision of the Safety Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) where injury occurred prior to December 1988 – when was injury permanent – whether Tribunal is satisfied the application has no reasonable prospect of success – application dismissed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth)Cases
Comcare v Pantic (2012) 203 FCR 83
Filsell and Comcare (2009) 109 ALD 198; [2009] AATA 90
Hoyle v Telstra Corporation Ltd (1997) 75 FCR 390
Re Paraponiaris and Secretary, Department of Employment (2015) 153 ALD 484; [2015] AATA 895
Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28
REASONS FOR DECISION
Member D Mitchell
17 November 2022
introduction
By way of application dated 14 March 2022, Mr Kenneth Bridges, on behalf of the Estate of the Late Judith Hartikainen (the Applicant), sought review of a decision made by the Respondent on 21 February 2022.[1]
[1] T Documents, T1, pages 1-5, Application for Review of Decision, including attachment.
On 21 February 2022,[2] the Respondent made a decision affirming a determination dated
19 October 2021 which found that no impairment compensation was payable under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (1971 Act) in relation to Ms Judith Hartikainen’s (the Veteran) accepted condition of ‘aggravation of recurrent subluxation left patella/patellectomy’.[3]
[2] T Documents, T30.1, pages 151-154, Attachment 1: Reviewable Decision.
[3] T Documents, T24, pages 130-132, Determination dated 19 October 2021.
On 29 July 2022, the Respondent requested that an interlocutory hearing be listed to consider whether the application should be dismissed pursuant to section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).
BACKGROUND
The Veteran enlisted in the Army in August 1984.[4]
[4] T Documents, T3, page 11, Extract of service records.
In a claim form dated 6 July 1987, the Veteran made a claim for compensation for injury or disease in relation to a patellectomy of her left knee.[5] The Veteran sustained an injury to her left knee whilst playing netball on 25 August 1986 which led to a patellectomy of her left knee on 10 April 1987.[6]
[5] T Documents, T5, pages 63-64, Claim for compensation.
[6] T Documents, T5, pages 65-67, Claim for compensation.
In a report dated 16 December 1987,[7] Dr Brian Davie, senior orthopaedic surgeon, having examined the Veteran, provided that a “recurrent sub-luxation of the patella was the original problem” and that condition “makes the knee more vulnerable to injury. Aggravation of this pre-existing injury occurred due to the incident on the 25th August 1986”.[8]
[7] T Documents, T6, pages 70-71, Report of Dr Brian Davie.
[8] T Documents, T6, page 71, Report of Dr Brian Davie.
Dr Davie opined that:[9]
The effects of the aggravation was permanent as it eventually led to removal of the patella.
….
Physiotherapy treatment and normal use are required at this stage. The only restrictions are that she had been unable to do work which involves squatting and bending and running. Patellectomy results in a permanent weakness in the knee such that the disability is in the order of 20% loss of function in the effected lower limb.
[9] T Documents, T6, page 71, Report of Dr Brian Davie.
On 7 April 1988, the Respondent accepted liability to pay compensation in relation to the Veteran’s claim under the 1971 Act, finding that she had suffered an aggravation of recurrent sub-luxation of the left patella leading to patellectomy and that her employment was a contributing factor to the aggravation of that disease.[10]
[10] T Documents, T7, page 72, Determination dated 7 April 1988.
On 20 June 1988, the Veteran received an offer of lump sum compensation in the amount of $8,505.00 in respect of a 20 percent loss of the efficient use of her left leg at or above the knee, based on the report of Dr Davie.[11]
[11] T Documents, T8, pages 73-75, Letter from the Department of Defence to the Applicant regarding offer of lump sum compensation payment.
In a further letter dated 25 August 1988, the Veteran was advised that the 1971 Act provides that where a lump sum compensation award has been made, an employee is entitled to claim further lump sums in respect of any additional loss.[12]
[12] T Documents, T9, page 76, Letter from Department of Defence to the Applicant regarding entitlement to claim further lump sum compensation.
By way of letter dated 16 November 1988, the Veteran declined the offer of a lump sum payment.[13]
[13] T Documents, T10, page 77, Letter from applicant to respondent declining offer of lump sum payment.
The Veteran was discharged from the Army in June 1989.[14] Following her discharge, she retrained and worked in various roles including as a prison officer, nurse and business owner.[15]
[14] T Documents, T3, page 9, Extract of service records.
[15] T Documents, T25, page 136, Request for reconsideration.
The Veteran ceased work in 2011. In a medical certificate for compensation dated
19 August 2014, Dr Naseer Uddin, general practitioner, provided that the Veteran was indefinitely unfit to work from 19 June 2014, due to ongoing chronic severe disabling left knee pain.[16]
[16] T Documents, T14, page 101, Medical Certificate of Dr Naseer Uddin.
The Veteran was in receipt of incapacity payments in relation to her knee condition from 2011.
The Veteran passed away on 8 November 2020.[17]
[17] T Documents, T21, page 125, Death Certificate of Judith Gail Hartikainen.
On 19 October 2021, in response to a claim for permanent impairment compensation received on 7 November 2020 in relation to the Veteran’s ‘aggravation of recurrent subluxation of left patella/patellectomy’, the Respondent determined that no permanent impairment compensation was payable.[18] The Respondent provided that the claim must be assessed under the provisions of the 1971 Act as the impairment became permanent on
25 August 1986. The Respondent found that as the Veteran was incapacitated for work and remained incapacitated for work, payment for permanent impairment compensation could not be considered due to the operation of section 39(14) of the 1971 Act.[19]
[18] T Documents, T24, pages 130-132, Determination dated 19 October 2021.
[19] T Documents, T24, page 132, Determination dated 19 October 2021.
On 25 October 2021, the Applicant requested reconsideration of the determination.[20]
[20] T Documents, T25, pages 133-134, Request for reconsideration.
On 21 February 2022, the Respondent affirmed the determination of 19 October 2021.[21]
[21] T Documents, T30.1, pages 151-154, Attachment 1: Reviewable Decision.
The Applicant sought review of that decision by way of application to this Tribunal dated
14 March 2022.[22]
[22] T Documents, T1, pages 1-5, Application for Review of Decision, including attachment.
On 20 June 2022, the Respondent wrote to the Applicant seeking confirmation of the basis of the claim and enquiring whether he intended to produce evidence in support of the claim. The Respondent advised the Applicant that its position was as follows:
13. On the current evidence before the Tribunal, the respondent’s position otherwise remains that as Ms Hartikainen was in receipt of incapacity payments form 2011 until her death in November 2020 (enclosed), pursuant to s39(14) of the Compensation (Commonwealth Government Employees) Act 1971, she is not entitled to retain the benefit of a lump sum payment given she was in receipt of incapacity payments.
On 28 June 2022, the Applicant provided a response outlining that while the Veteran’s injury occurred in 1986, it did not become permanent until 2011, which he said was shown in the claims history as no incapacity payment was made to her until 2011. On that basis, the Applicant submitted that the injury to the Veteran’s right knee should be assessed under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) (the DRCA).
Further, the Applicant outlined that:
·The Veteran was offered permanent impairment compensation which she refused as she did not consider the injury had stabilised.
·The Veteran was still receiving treatment on her knee in 1989.
·The Veteran returned to her duties in the Army and served until 23 June 1989 and then worked as a prison guard and nurse up until 2011.
·The Veteran was offered compensation so sections 124(1) and (1A) of the DRCA apply.
·Section 6A(2) of the DRCA applies as the Veteran was operated on while serving in the Army.
On 29 July 2022, the Respondent provided written submissions requesting that the Tribunal conduct an interlocutory hearing to consider dismissing the Applicant’s application pursuant to section 42B(1)(b) of the AAT Act on the basis that the application has no reasonable prospect of success. The Respondent submitted that:
18. It is appropriate that the Tribunal dismiss the Applicant’s application because:
18.1the applicant has not filed any evidence in support of the contentions he seeks to raise in the matter
18.2Ms Hartikainen’s Left Knee Condition, must have become permanent no later than 1986 when her patella was removed
18.3as a result, Ms Hartikainen’s Left Knee Condition must be assessed with reference to the 1971 Act
18.4Ms Hartikainen’s was in receipt of incapacity payments from 2011 until her death in November 2020
18.5as a result, pursuant to s39(14) of the 1971 Act, she is not entitled to retain the benefit of a lump sum payment given she was in receipt of incapacity payments at the time the claim for the reassessment of her permanent impairment compensation was submitted. This position has been upheld by the Federal and Full Federal Court.[23]
19. The Tribunal’s objective under s2A of the AAT Act require that, in carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is, among other things, proportionate to the importance and complexity of the matter. While the power of the Tribunal to dismiss proceedings under s42B of the AAT Act is a power that should be used cautiously, ‘if proceedings have no reasonable prospects at all of success, they should be dismissed under s42B, since it would be futile for the proceedings to continue and inappropriate to use the time and resources of the Tribunal and to put the respondent to the expense that would be involved in the matter proceeding to hearing.[24]
20. The respondent submits that this case is one in which it is appropriate for the Tribunal to exercise its powers under s42B of the AAT Act, given the relevant medical evidence against the applicant’s claim, there being no objective evidence that contradicts this evidence and the relevant case law authorities.
[23] See Hoyle v Telstra Corporation Ltd (1997) 75 FCR 390 (Hoyle) and Comcare v Pantic (2012) 203 FCR 83 (Pantic).
[24] See Filsell and Comcare [2009] AATA 90 at [33].
By letter dated 30 July 2022, the Applicant responded to the Respondent’s application for dismissal. The Applicant submitted that:
·The Veteran suffered from an aggravation of recurrent subluxation left patella and was then operated on removing her patella or in medical terms, given a patellectomy.
·As a result, he believes that under sections 6A(2) and 124 of the DRCA, permanent impairment compensation should be paid.
·The claim form completed on 6 July 1987 (found at T5) clearly shows that the nature of injury sections had been changed.
·“Section 5 of the respondents letter states ‘Dr Davie, orthopedic surgeon, noted that Ms Hartikainen suffered an aggravation of her recurrent subluxation of the patella as a result of the incident on 25 August 1986. Dr Davie concludes that the ‘effects of the aggravation were permanent as it eventually led to the removal of the patella’ (T6). This report at question 1 states the original injury was Recurrent Sub Luxation of the patella and question 5 confirms the effect of the aggravation were permanent. This led to a patellectomy.
I would like to note and am sure the lawyer for the respondent would be aware that the 1930 and 1971 Acts used a 'loss of efficient use' measurement to identify the impact of the injury and determine the amount of compensation. It did not use a permanent impairment. This would make the above statement from the respondent incorrect on two points. T(6)Dr Davie stated the original injury had been made permanent not the resultant patellectomy and the Dr would have been commenting on the efficient use of the left knee had become permanent. I would like to stress that Jude continued to work for the army until 23/06/1989. Section 26 of the 71 Act clearly states how an employee is deemed to be totally incapacitated for work, Jude did not meet this requirement. She then worked in other jobs up to or around 2011 2012. Jude received no payment from section 39 or any other section of the 71 act. Jude continued to work and did not seek medical advice about the patellectomy until sometime around 2004. I would also like to comment on T(20) Background paragraph 2 3 line which states “as at this stage you were still working and not totally incapacitated or likely to become totally incapacitated for work.” Once again proving that Jude was not totally incapacitated for work.
These documents alone prove that the injury Jude suffered because of medical treatment and the fact she did not seek medical treatment until 2004 for the patellectomy that the 71 Act is not the act that should have been used to assess the patellectomy injury caused by the medical treat for Recurrent Sub Luxation of the patella.”
·The Veteran suffered an impairment because of a service injury or disease. However, she did not accept the initial offer of compensation as she believed that the condition had not stabilised and because claims could be rejected further down the line if there was a problem. The Veteran continued to get treatment for the original injury and further medical reports indicate that the patellectomy had reduced the problem.
·This can be found in medical reports done after the patellectomy. These reports stated that there had been no loss of movement in the left knee. However, the patellectomy was a new operation that had not been fully examined and there was inadequate information about the injury which was caused by the operation.
·The T Documents are incomplete and misleading.
·Notes that Comcare v Pantic (2012) 203 FCR 83 spoke about an injury that became permanent before the 1988 Act at [15]:
If, at some time before the commencing day, either of the appellants had ceased to be totally incapacitated for work, there would have been an entitlement to compensation under s 39(3) of the 1971 Act. Further, if either of the appellants ceased to be totally incapacitated at some time after the commencement day, s 124(3) might not preclude entitlement to compensation under s 24 of the Compensation Act. The factual issues arising in relation to that question were not fully investigated below and we do not decide that question: (at 156).
·He considers that sections 6A(2) and 124 of the DRCA have been questioned many times. However, on many occasions, there has not been adequate review because of the circumstances of the cases. To not hear this case would, in his opinion, be procedural unfairness.
A telephone Interlocutory Dismissal Hearing was conducted in this matter on
22 August 2022.
issues
The present issue before the Tribunal is whether the Tribunal should exercise the discretion to dismiss the Applicant’s application for review under section 42B(1)(b) of the AAT Act.
The role of the Tribunal
The Tribunal’s role is to undertake an independent merits review of administrative decisions for which it has jurisdiction to hear.
The Tribunal considers the matter afresh based on the evidence before it and is tasked to make the correct and preferable decision in accordance with law.
The bounds of the Tribunal’s decision-making powers are found in section 43 of the AAT Act, which provides:
(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
a)affirming the decision under review;
b)varying the decision under review; or
c)setting aside the decision under review and:
(i)making a decision in substitution for the decision so set aside; or
(ii)remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
The Tribunal cannot make a decision that is outside of the law that is in place. Where no discretion is provided by the statute, the Tribunal cannot, regardless of its view on the matter, make a decision that is not correct at law.
should the APPLICATION be dismissed?
Section 42B(1) of the AAT Act provides that:
(1)The Tribunal may dismiss an application for the review of a decision, at any stage of the proceedings, if the Tribunal is satisfied that the application:
(a)is frivolous, vexatious, misconceived or lacking in substance; or
(b)has no reasonable prospect of success; or
(c)is otherwise an abuse of the process of the Tribunal.
The High Court, in Spencer v Commonwealth [2010] HCA 28, stated that ‘the exercise of powers to summarily terminate proceedings must always be attended with caution’[25] and it is readily ‘accepted the power to dismiss an action summarily is not to be exercised lightly.’[26]
[25] Spencer v Commonwealth [2010] HCA 28 at [24].
[26] Spencer v Commonwealth [2010] HCA 28 at [60].
In considering whether to dismiss proceedings under section 42B(1)(b) of the AAT Act, Deputy President Jarvis, in Filsell and Comcare [2009] AATA 90, provided the following rationale at [33]:
The power of the tribunal to dismiss proceedings under s 42B is a power that should be used cautiously. ….. However, if proceedings have no reasonable prospect at all of success, they should be dismissed under s 42B, since it would be futile for the proceedings to continue, and inappropriate to use the time and resources of this tribunal, and to put the respondent to the expense that would be involved in the matter proceeding to a hearing.
Conversely, applications to dismiss under s 42B should not be made except in appropriate cases, since otherwise the parties will be put to additional expense, the tribunal’s time and resources will be wasted, and the tribunal’s ability to provide a mechanism of review that is fair, just, economical, informal and quick (as required by s 2A of the AAT Act) will be impeded.
In Re Paraponiaris and Secretary, Department of Employment [2015] AATA 895, Deputy President Alpins in considering relevant authorities regarding the Tribunal’s power under section 42B of the AAT Act provided:[27]
23. The exercise of the Tribunal’s power to dismiss proceedings under s 42B, being a power to dismiss a proceeding summarily, “must always be attended with caution” and “is not to be exercised lightly” (Spencer at [24], [60]; see also Re Williams and Australian Electoral Commission [1995] AATA 160; (1995) 38 ALD 366 at 372), as ordinarily a party ought not be denied the opportunity to put their case and have it heard in the usual way; the expression “no reasonable prospect” prescribes a standard describing “a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to [hearing] in the ordinary way” (Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 at [57], cited with approval in Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 at [46]).
24. The requirement that the Tribunal be satisfied that the application “has no reasonable prospect of success” necessarily involves a consideration of the merits in the sense that it requires a finding that the application lacks any prospect of success which can properly be said to meet the standard of being a reasonable one (see Duncan v Fayle [2004] FCA 723; (2004) 138 FCR 510 at [22] per French J). The Tribunal’s discretion to dismiss an application for review under s 42B(1) of the AAT Act is enlivened in circumstances where the Tribunal forms the view that the application, upon a practical judgment as to the expected ultimate outcome of the proceeding, suffers from the requisite deficiency described in s 42B(1)(b), which will depend upon the nature of the issues raised by the application, particularly whether the case involves resolution of issues of fact, law or both (Spencer at [25]-[26]).
25. Where the application for review requires resolution of a real issue or issues of fact (or law and fact, or mixed law and fact), the Tribunal cannot properly be satisfied that the application “has no reasonable prospect of success” for the purposes of s 42(1)(b) – it is not enough that the Tribunal has formed the view that the applicant is unlikely to succeed in respect of such issues (Spencer at [25]-26]; Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at [6] per Gilmour J).
26. Where the application for review requires resolution of a real issue or issues of law, the Tribunal cannot properly be satisfied that the application “has no reasonable prospect of success” – that will be so where there may be room for doubt about a proposition of law upon which the success of the application for review depends. On questions of law, “an inquiry as to their merit should not be for the purpose of resolving them ... but in order to decide if it is sufficiently strong to warrant a [hearing]” (Dandaven at [6]).
27. The fact that the proposition of law is apparently precluded by existing authority may not always be the end of the matter, unless the success of the proceedings is critically dependent upon a proposition of law which would contradict a binding decision of the High Court (Spencer at [25]).
28. However, where the success of an application for review depends upon propositions of law said to arise from relevant legislative provisions which are not sufficiently tenable as a matter of proper statutory interpretation, in my opinion it is open to the Tribunal to be satisfied that the application has no reasonable prospect of success for the purposes of s 42B(1)(b).
[Emphasis added]
[27] At [23]-[28].
In the present matter, it is not disputed the claim for permanent impairment compensation falls under the DRCA. The dispute appears to arise from the application of the transitional provisions of the DRCA which must be considered given that the Veteran’s injury for which liability have been accepted, occurred prior to the commencement of the DRCA.
Part X of the DRCA sets out the transitional provisions that apply to injuries suffered before the commencement date of the DRCA. Section 124 of the DRCA relevantly sets out:
124 Application of Act to pre‑existing injuries
(1) Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.
(1A) Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.
(2) A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:
(a) where the injury, loss or damage was suffered before the commencement of the 1930 Act—under the 1912 Act;
(b) where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act—under the 1930 Act as in force when the injury, loss or damage was suffered; or
(c) in any other case—under the 1971 Act as in force when the injury, loss or damage was suffered.
(3) A person is not entitled to compensation under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing date, if:
(a) the person received compensation of a lump sum in respect of that impairment or death under the 1912 Act, the 1930 Act or the 1971 Act; or
(b) the person was not entitled to receive compensation of a lump sum in respect of that impairment or death:
(i) where the impairment or death occurred before the commencement of the 1930 Act—under the 1912 Act;
(ii) where the impairment or death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act—under the 1930 Act as in force when the impairment or death occurred; or
(iii) in any other case—under the 1971 Act as in force when the impairment or death occurred.
(4) The amount of compensation (if any) that a person is, by virtue of this section, entitled to receive under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing day, shall be the same as the amount of the compensation that would have been payable to that person, if this Act had not been enacted, under:
(a) where the impairment or death occurred before the commencement of the 1930 Act—the 1912 Act;
(b) where the impairment or death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act—the 1930 Act as in force when the impairment or death occurred; or
(c) in any other case—the 1971 Act as in force when the impairment or death occurred.
(5) A person is not entitled to compensation under section 29 in respect of any period occurring before the commencing day.
(6) A person is not entitled to compensation under subsection 17(5) in respect of the death of an employee, or under section 19, 20, 21, 22 or 31 in respect of an incapacity, where the compensation relates to a period occurring before the commencing day, if:
(a) that person received weekly payments of compensation in respect of that death or incapacity in relation to that period under the 1912 Act, the 1930 Act or the 1971 Act; or
(b) that person was not entitled to receive weekly payments of compensation in respect of that death or incapacity in relation to that period:
(i) where the death or period of incapacity occurred before the commencement of the 1930 Act—under the 1912 Act;
(ii) where the death or period of incapacity occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act—under the 1930 Act as in force when the death or period of incapacity occurred; or
(iii) in any other case—under the 1971 Act as in force when the death or period of incapacity occurred.
(7) The rate of compensation (if any) that a person is, by virtue of this section, entitled to receive under subsection 17(5) in respect of the death of an employee, or under section 19, 20, 21, 22 or 31 in respect of an incapacity, where the compensation relates to a period occurring before the commencing day, shall be the same as the rate of compensation that would have been payable to that person in relation to that period, if this Act had not been enacted, under:
(a) where the period occurred before the commencement of the 1930 Act—the 1912 Act;
(b) where the period occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act—the 1930 Act as in force during the period; or
(c) in any other case—the 1971 Act as in force during the period.
………
[Emphasis added]
In Hoyle, the Full Federal Court characterised the principle of section 124 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (of which the DRCA mirrors) at 394 as follows:
…. it is clear that the parliament proceeded on the basis that, where the entitlement to compensation under the [1988] Act has a relevant nexus with a period before the commencing day, the appropriate general principle should be that an employee is not to be deprived of any compensation that would have been payable under the 1971 Act but for its repeal, but is not to be entitled to any greater compensation than would have been payable under that Act.
In Hoyle, the Full Federal Court set out that the distinction between sections 124(3) and 124(4) of the SRCA is (at 396):
….. that the former is concerned with entitlement in the sense of whether or not compensation is payable whereas s124(4) is concerned only with the amount of the lump sum which is payable. That is to say, in the absence of a finding that an employee has ceased to be totally incapacitated, there is no entitlement to receive compensation, although the position may well be different if there were such a finding.
The decision of the Full Federal Court in Hoyle was adopted by the Federal Court in Pantic.
interloctory hearing
At the Interlocutory Hearing, the Respondent reiterated the contentions it had previously outlined in the application for dismissal. The Respondent submitted that what is at issue is whether the Applicant is entitled to lump sum compensation for an impairment in relation to an injury that occurred in 1986.[28]
[28] Transcript, page 3.
The Respondent contended that a condition affecting the patella cannot be changed once the patella is removed. The Respondent contended that there can be secondary injuries of which claims can be made in relation to and dealt with in the usual manner.[29]
[29] Transcript, page 3.
The Respondent submitted that there was an entitlement for the Veteran to receive the lump sum payment up until the point that incapacity payments commenced in 2011 and once those payments commenced, that entitlement was lost because of the operation of section 124(3) of the DRCA. The Respondent submitted that section 124(3) of the DRCA provided that a person was not entitled to compensation under section 24 or 25 of the DRCA where such a payment would not be payable under section 39 of the 1971 Act. The Respondent submitted that as of 2011, the Veteran would not have been entitled to any lump sum payment under the 1971 Act because she was then in receipt of incapacity payments and was incapacitated for work.[30] The Respondent contended that the authorities of Hoyle and Pantic confirm that an employee cannot be better off in respect of an injury that occurred prior to the commencement of the DRCA having regard to the provisions of the 1971 Act.[31]
[30] Transcript, page 4.
[31] Transcript, page 4.
The Respondent contended that as a result of both the operation of law and the absence of any evidence to support any contentions that a circumstance applied such that there was a different injury that might be considered by the Tribunal within its present jurisdiction, the application has no reasonable prospect of success.[32]
[32] Transcript, pages 4-5.
At the Interlocutory Hearing, the Applicant reiterated the contentions he had previously set out in writing. The Applicant told the Tribunal that the Veteran made a claim for the original injury, which was for the subluxation of the patella, not for the patellectomy. He contended that the 1971 Act did not differentiate between permanent or non-permanent, but rather looked at the loss of functional use and that the Veteran had lost the functional use of her leg to a 20 percent degree according to the doctor at the time.[33] He contended that the same doctor said that the Veteran had not lost any movement in the knee. He contended that it was not a permanent injury at that time as the Veteran had continued to work for the Army until 23 June 1989.[34]
[33] Transcript, page 8.
[34] Transcript, page 9.
The Applicant told the Tribunal:[35]
Now, I will refer to the case of Comcare v Ian Gordon Levett, section 24, where the conclusion of the judge was that it wasn’t a permanent impairment before 1 December 1988 and that the impairment incurred afterwards. I do not think there is any argument that my wife suffered an injury but it didn’t become permanent, well the patellectomy caused it to become permanent. So, under 6A(2)(a) she’s entitled to compensation purely because it was a medical treatment that she was given to try and fix an injury that she incurred in the army.
Secondly, I’d say that the patellectomy did not become permanent until 2011 when she started to receive worker’s comp, basically. She received no lump sum. She received no payments under any other part of the ‘71 Act, and it was not until 2011 that she received worker’s compensation because she could not work.
In the Levett case[36] it clearly states that if it became permanent afterwards that it would be assessed under the 1988 Act in which case section 39(14) wouldn’t count anyway because it must be assessed under the SRCA Act.
[35] Transcript, page 9.
[36] Comcare v Levett (1995) 60 FCR 14 (“Levett”).
When asked by the Tribunal what documents the Applicant says are missing from the
T Documents and whether or not he intended to provide further documents upon which the Applicant sought to rely on, the Applicant told the Tribunal that all of the Veteran’s medical documents should have been included and that while he has boxes of medical documents, they are not needed because the documents that had already been provided by the Respondent were sufficient to prove his point. The Applicant said the documents currently before the Tribunal clearly show that the injury on the claim form was changed.[37]
[37] Transcript, pages 14-21.
The Applicant stated that as far as he was concerned, he had already proved his case with the T Documents which stated that the Veteran was not permanently impaired until 2011.[38]
[38] Transcript, page 21.
In relation to the T Documents, the Respondent contended that the issue before the Tribunal is primarily about the operation of legislation and that where there are undisputed facts, the inclusion of extraneous medical reports will not assist the Tribunal.[39]
[39] Transcript, page 22.
At the Interlocutory Hearing, the parties agreed that the accepted condition to which the application relates is the injury of 1986.[40] The Respondent submitted that the patellectomy surgery itself cannot be an injury and if the Applicant says there is a separate injury that arose, that injury is not before the Tribunal and would need to be the subject of a separate claim for liability.[41]
[40] Transcript, pages 23-24.
[41] Transcript, page 24.
The Respondent submitted that the application presently before the Tribunal relates to a claim for permanent impairment in relation to the accepted condition of aggravation of recurrent subluxation of the left patella. The Respondent submitted that the surgery was referred to was because it removed the patella.[42] The Respondent contended:[43]
So, a situation where impairment might become worse the patella would still have to exist. Something else that has happened is not that impairment becoming worse but, again, there is no evidence before you at this dismissal application that it became worse but, in fact, there is evidence that it was permanent before 1988….
[42] Transcript, page 25.
[43] Transcript, page 25.
The Applicant reiterated that his view was that the removal of the patella is a separate injury.[44] The Applicant contended that:[45]
Had they not added the patellectomy in there [being on the claim form and in the description of the accepted condition] and we were just talking about the first case, yes, they would have a reasonable case I would imagine. I would still probably argue it though. But the fact that they added patellectomy in there, which was not the original injury, and a patellectomy is an injury.
[44] Transcript, page 26.
[45] Transcript, page 26.
The Respondent submitted that the Levett case predated Hoyle and Pantic and confirmed that the impairment was permanent before 1 December 1988.[46]
[46] Transcript, page 29.
The Applicant submitted that there was no permanent impairment in 1987, instead, contended that there was a loss of function due to the first injury but that there was no impairment as the Veteran continued to work.[47]
[47] Transcript, page 30.
consideration
The substantive issue in the present application is whether or not the Applicant, as the Veteran’s estate, is entitled to lump sum permanent impairment compensation in relation to the accepted condition of recurrent subluxation left patella/patellectomy.
The Respondent contended that the Applicant is not entitled to a lump sum due to the accepted injury having occurred in August 1986 and the operation of transitional provisions of the DRCA and the 1971 Act. The Respondent’s contention centres on the evidence of
Dr Davie who, on 16 December 1987, reported that the aggravation of the Veteran’s recurrent sub-luxation of the patella (as the original injury) was permanent as it eventually led to the removal of the patella.
The Applicant, on the other hand, contended that there are two injuries in question. Firstly, the accepted condition of recurrent subluxation of the left patella and secondly, the patellectomy itself was a different injury of which he contended, did not cause an impairment until 2011. On that basis, the Applicant contended that the transitional provisions of the DRCA do not apply, rather an additional condition exists pursuant to section 6A(2) of the DRCA as a result of the patellectomy surgery that occurred in April 1987.
There appears to be some crossover in the Applicant’s contentions. The Tribunal acknowledges the evidence before it that outlines the difficulties faced by the Veteran in the lead up to and after 2011 when she was no longer able to work. The Tribunal also acknowledges the Applicant’s loss of the Veteran and offers its deepest sympathies.
It appears to the Tribunal that the Applicant considers the reference to the patellectomy in the acceptance of liability for the injury that occurred in August 1986 somehow changes the operation of the DRCA.
Section 124(3) of the DRCA clearly provides that no compensation is payable under sections 24 or 25 for permanent impairment that occurred before the commencement date of the DRCA (being December 1988) if no such entitlement would have existed under the 1971 Act. Further, section 124(4) of the DRCA relevantly provides that the amount of compensation payable under sections 24 or 25 for a permanent impairment that occurred before December 1988 is limited to the amount that would be provided under, in the present case, the 1971 Act.
Section 39(3) of the 1971 Act provides for lump sum compensation payments to be made in respect of injures that result in loss specified in section 39(4) of the 1971 Act (an impairment payment). Section 39(14) of the 1971 Act provides that an impairment payment is not payable where the employee is or is likely to become totally incapacitated for work as a result of the injury. As such, in circumstances where the Veteran was receiving incapacity payments in relation to the accepted injury, she is not entitled to a lump sum compensation payment for any resulting permanent impairment.[48]
[48] Hoyle at 394-395 and Pantic at [27]-[41].
Sections 45(9) and 46(5) of the 1971 Act provide that if a determination was made that an impairment payment was payable to a person, incapacity payments were not payable for any incapacity to work after the determination, which, in effect, means that once a person accepted an impairment payment, they were no longer entitled to weekly incapacity payments.[49]
[49] Hoyle at 394-395 and Pantic at [27]-[41].
As outlined above, the Veteran was offered an incapacity payment, however declined the offer on 16 November 1988 by way of letter. Had she not have done so, she would not have been entitled to the incapacity payments she was subsequently in receipt of since 2011.
There is no dispute that the Veteran’s accepted injury occurred on 26 August 1986 and was diagnosed as recurrent subluxation left patella. It is also not disputed that on 10 April 1987, the Veteran underwent a patellectomy which is the removal of the patella. It is noted that the Veteran’s claim for acceptance of liability for her injury was made after the patellectomy surgery had occurred.
It is clear that as of 16 December 1987 (the date of Dr Davie’s report), the Veteran was not fully incapacitated. However, she did have an injury of which had a permanent impact upon the use of her left knee. An impairment did exist in relation to the injury.
It is further not disputed that from 2011 and up until the time of her death that the Veteran received impairment payments in relation to her accepted left knee condition.
As such, the issue is whether or not the Veteran’s accepted condition was permanent in that it resulted in a permanent impairment before December 1988. The Tribunal notes that there is no medical evidence that contradicts that of Dr Davie, being that the Veteran’s accepted condition became permanent upon the removal of her patella. When the Applicant was asked whether or not there was further evidence he held that he wanted to rely on, he stated that he had boxes of documents. However, in his view, the material presently before the Tribunal already proved his case.
The Tribunal considers that the Applicant understands the operation of law that arises in this application and is actually seeking permanent impairment for a separate injury, being the Veteran’s patellectomy or for an injury that resulted from that procedure. The Applicant did not clearly dispute that the accepted injury, when limited to the aggravation of recurrent subluxation left patella, did not result in a permanent impairment upon the removal of the Veteran’s patella, instead he appeared to agree with such a proposition. Rather, the Applicant submitted that it was the injury that resulted from the patellectomy that did not result in a permanent impairment until 2011.
Further, the Tribunal does not consider that the Federal Court decision in Levett is inconsistent to the subsequent decisions in Hoyle and Pantic. In those cases, the Federal Court’s interpretation of the operation of section 124 of the SRC Act (being identical to section 124 of the DRCA) and section 39(14) of the 1971 Act was consistent with that set out by the Tribunal above. Each case, while determined on its own facts, outlined that in circumstances where an injury accepted under the 1971 Act and the resulting impairment also became permanent under the 1971 Act, any claim made for permanent impairment compensation under the DRCA would require consideration of the persons entitlement under the 1971 Act.
The jurisdiction of the Tribunal in the present matter is limited to considering the eligibility to permanent impairment compensation in relation to the accepted condition, it does not extend to considering whether or not there has been any secondary injuries arising from that accepted condition or from the treatment of that condition (in particular, the patellectomy). Consequently, the Tribunal makes no finding as to the appropriate application of section 6A(2) of the DRCA to the Veteran’s patellectomy as that is not a matter before it. Should the Applicant wish to pursue his contention that the Veteran’s patellectomy was a separate injury or resulted in a separate injury to that of which is liability has been accepted, it is a matter for him to take up with the Respondent.
While the Tribunal acknowledges the Applicant’s desire to have the application proceed to hearing, deciding whether or not to dismiss an application for lack of prospect of success is a matter that is not taken lightly.
Based on the evidence before it, the Tribunal accepts the Respondent’s contention that the Veteran’s accepted condition of aggravation of recurrent subluxation left patella that resulted in a patellectomy become permanent and resulted in a permanent impairment or permanent loss of function at the time of the patellectomy surgery in April 1987.
As such, as the Veteran was in receipt of incapacity payments at the time of her claim for reassessment of permanent impairment and up to the time of her death, the operation of section 124(3) of the DRCA and section 39(14) of the 1971 Act and consistently with the Federal Courts findings in Levett, Hoyle and Pantic, she was not entitled to receive a lump sum payment for permanent impairment in relation to her accepted condition.
In considering the objectives of the Tribunal as set out in section 2A of the AAT Act, the Tribunal has formed the view that to allow this matter to progress to hearing would be manifestly unfair to the Applicant. In circumstances where the operation of law in question arises from legislative provisions which are not sufficiently tenable as a matter of proper statutory interpretation, the Tribunal is satisfied that the application has no reasonable prospect of success. To allow the matter to progress would cause unnecessary distress to the Applicant and unnecessary costs to be incurred by the parties.
Consequently, the Tribunal considers it would be futile for the proceedings to continue and in such circumstances, finds it is, therefore, appropriate to exercise the discretion provided by section 42B(1)(b) of the AAT Act. As such, the Tribunal dismisses the Applicant’s application for review on the basis that it lacks reasonable prospect of success.
DECISION
Pursuant to section 42B(1)(b) of the AAT Act, the application for review is dismissed.
| I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell |
.......................[SGD]..........................
Associate
Dated: 17 November 2022
Date of hearing: 22 August 2022 Representative for the Applicant: Mr Ken Bridges Counsel for the Respondent: Ms Sarah Wright Solicitors for the Respondent: Australian Government Solicitor
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