WFLT and Military Rehabilitation and Compensation Commission (Compensation)

WFLT and Military Rehabilitation and Compensation Commission (Compensation) [2016] AATA 1072 (22 December 2016)

Division

VETERANS’ APPEALS DIVISION

File Number

2014/1745

Re

WFLT

APPLICANT

And

Military Rehabilitation and Compensation Commission

RESPONDENT

DECISION

Tribunal
Miss E A Shanahan, Member

Date 22 December 2016

Place Melbourne
The Tribunal sets aside the decision under review and substitutes its decision that WFLT is entitled to continuing payment of Special Forces Disability Allowance as part of his normal weekly earning on which his compensation payments are based.
........................................................................
Miss E A Shanahan, Member
COMPENSATION - normal weekly earnings – Special Forces Disability Allowance – physical and mental injury sustained in the war in Afghanistan – desire to remain in special forces regiment until retirement age – unfit for active service – transfer to a division with no entitlement to SFDA – discharged on medical grounds – remains incapacitated – decision set aside
Legislation
Military Rehabilitation and Compensation Act 2004
Safety, Rehabilitation and Compensation Act 1998
Administrative Appeals Tribunal Act 1975
Cases
Comcare v Simmons [2014] 220 FCR 102
Re Frew and Comcare (2011) ALD 375
Re Hillman and Military Rehabilitation and Compensation Commission [2011] AATA 38
Re Hubbard and Military Rehabilitation and Compensation Commission (2011) 123 ALD 350
Re Kennedy and Military Rehabilitation and Compensation Commission (2007) 93 ALD 700
REASONS FOR DECISION
Miss E A Shanahan, Member
22 December 2016

On 3 April 2014 WFLT lodged an application with the Administrative Appeals Tribunal for review of the decision of the Veterans’ Review Board (VRB) dated 11 March 2014. The VRB had made two decisions in response to an application by WFLT. Both decisions, dated 27 April 2012 and 28 February 2013, related to WFLT’s eligibility for Special Forces Disability Allowance (SFDA) as part of his incapacity compensation for a period between 16 January 2012 and 21 January 2013. These two decisions sought further information from the Department of Defence and the Military Rehabilitation and Compensation Commission (MRCC) to clarify certain data and undertake further investigations of the claim.
On 11 March 2014 the VRB extended the payment of WFLT’s SFDA for the period 16 January 2012 to 21 January 2013 and denied payment on and from 22 January 2013. The VRB stated that they had no option but to act on the advice of the Service Chief in making this decision.
The hearing of this matter was conducted over a period of approximately 11 months with adjournments granted to allow the provision of further information and for the parties to obtain further instructions. WFLT was represented by Mr Michael Quinn of the Australian Peacekeepers’ and Peacemakers’ Veterans’ Association and Mr Joe Lenczner instructed by Sparke Helmore appeared for the MRCC. The hearing and decision have been subject to complex confidentiality orders. I as the Tribunal Member have been hampered by the use of abbreviations, now accepted as acronyms, in the relevant reports, opinions and information provided by Special Forces personnel. It is hoped that the lack of a glossary relating to these acronyms will not impact adversely on the decision.
The Tribunal was provided with the documents lodged by the MRCC pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents) which were assigned the Exhibit number R1. Both parties tendered further documentation and a list of these exhibits is appended to this decision. WFLT and Warrant Officer ‘B’ gave evidence in person before the Tribunal and Warrant Officer ‘A’ and Lieutenant Colonel Say gave evidence by telephone. Following completion of the hearing there was a great deal of correspondence relating to confidentiality orders and a written submission in the form of an affidavit from Brigadier Vance Khan relating to national security matters. Brigadier Khan is responsible for the Special Forces, being second-in-charge of the Southern Command. The Tribunal has accepted Brigadier Khan’s submissions and identified by name only those persons listed as not being subject to confidentiality requirements.
BACKGROUND TO THE APPLICATION
WFLT joined the Army reserves in 1989 at the age of 17. He received training as an infantry soldier and in February 1990, enlisted as a full time soldier. He was trained as a tank driver and in armoured recognisance within the Armoured Corp. In 1996 he transferred to the Infantry Corp and was retrained as a rifleman in 4RAR (Royal Australian Regiment) for a twelve month period. In 1997 4RAR took on the Australian Regular Army Commando role and WFLT was given the opportunity to join this Special Force. Volunteers were called for and had to undergo selection procedures. If successful they would undertake specialist training which included advanced operations and selected skills and took six months to complete.
In 2002 while posted in the Tactical Assault Group East, WFLT received the SFDA. In July 2002 he discharged from the regular army and transferred to the reserves in order to serve with the New South Wales Police Force. While he was a reservist payment of the SFDA was limited to operational deployments. In September 2006 WFLT again entered into a full time service contract with 4RAR and re-enlisted in the Regular Army on 6 January 2007. Late in 2007 a Defence Force Remuneration Tribunal decision was made giving the SFDA to several Special Force Units, which in effect meant a career-long receipt of the SFDA unless the individual volunteered for a non-Special Forces posting or chose a career path outside the Special Forces.
WFLT was deployed as a soldier to Bougainville and the Solomon Islands in 1998, to East Timor in 1999 and again in 2001 and as a commando to Timor-Leste in 2007 and Afghanistan in 2008.
On 6 February 2008 WFLT was repatriated from Tarin Kowt to Kandahar on a United States of America Blackhawk helicopter. He had been granted compassionate leave following the sudden death of his father and was to return to Australia. The passengers in the helicopter were US Army and Air Force personnel along with Australian soldiers, civilian passengers and a returning Chaplain. WFLT was wearing his full rig and combat load of equipment which prevented him sitting squarely in his seat and from fully accessing the four point harness.
Halfway through the flight the helicopter commenced performing sudden manoeuvers veering to the left and right and up and down and during this process WFLT’s head snapped back violently and hit the fuselage of the helicopter. He immediately experienced pain in his neck and subsequently stiffness and pain in both his neck and shoulders. In the subsequent flight from Kandahar to Kuwait in an Australian Air Force C130, WFLT experienced an increase in the level of pain in his neck and shoulders and developed tingling in his hands. On arrival in Kuwait he was able to shed his rig and weapons and noticed a decrease in his neck pain. However, the pain persisted while he was in Kuwait and during the flight back to Australia.
Following his arrival in Hobart WFLT was required to sleep on a foldout couch and awoke with severe pain in both shoulders and anaesthesia of his hands. He then contacted the Duty Officer at 4RAR and was directed to go to the Royal Hobart Hospital. An MRI (magnetic resonance imaging) of his cervical spine was requested and he was subsequently informed that he had a C6/C7 disc lesion which he says he was told was causing inflammation and pressure on his nerves. Following a further medical examination on 14 February 2008 WFLT was advised to return to Afghanistan and seek review by the unit medical officer. His symptoms persisted and he continued to take Panadol and perform exercises to relieve them. On arrival in Tarin Kowt he saw an Australian surgeon who prescribed further analgesics and put in place medical restrictions. WFLT was placed on administrative duties for two to three weeks but as his condition did not improve he was medically evacuated from Afghanistan to Australia on 18 March 2008.
WFLT’s symptoms have persisted since the date of injury despite conservative medical treatment. In his major efforts to regain physical prowess he has suffered further injuries in the form of an inversion injury to his right ankle which eventually required arthroscopy and chondroplasty in 2009, a right shoulder injury first reported in 2007 and later diagnosed as a right supraspinatus tear requiring arthroscopic surgery in September 2008 and post-traumatic stress disorder (PTSD) diagnosed in 2009 and treated with antidepressant medication for three months. The PTSD was attributed to WFLT experiencing a severe stressor while serving as a medic in Bougainville in 1998. He had been required to assist in the resuscitation of two children who died from cerebral malaria. The resuscitation efforts were of no benefit and caused great distress to WFLT.
In 2011 WFLT experienced an acute bout of lower back pain. He had suffered from back pain intermittently for many years. In 2011 this was investigated and revealed an L5/S1 disc tear. An MRI of his lumbosacral spine on 11 October 2011 showed L4/5 central disc protrusion, mild facet joint osteoarthrosis at L5/S1 and an annular tear at L5/S1 with a disc bulge. At S1/S2 there was a midline disc bulge to the left of centre and the left S2 nerve root was compressed (anatomically the S2 nerve root supplies sensation and muscular innervation to the scrotum and penis - Grays’ Anatomy Textbook).
In summary WFLT has ongoing PTSD, cervical disc protrusion causing neck and shoulder pain with paraesthesia in the hands, and a right ankle injury. The ankle injury is well healed but he still has a talar spur present and a right supraspinatus tear which has been surgically repaired and now only causes occasional pain. He also has ongoing low back pain due to multiple disc degenerative disease and left S2 nerve root compression.
WFLT’s Commando activities have been severely limited by his physical injuries and he has not been able to resume deployment overseas nor meet the requirements of physical fitness despite his perhaps too excessive efforts to do so. He was receiving the SFDA when posted to Afghanistan less than twelve months after he joined the Commando Regiment of the Special Forces. His injury occurred while in receipt of the allowance.
Over the years WFLT has undergone at least four MEC (medical employment classifications) examinations. These are forwarded to the MECRB (Medical Employment Classification Review Board) and with the use of very complicated tables, have imposed a great variety of restrictions on what activities and tasks WFLT may do. These range from not carrying any weight greater than 10 kilos to no route marches or ceremonial parades and certainly no deployment overseas. The detail in these reports is extremely varied and amount essentially to a list of his injuries, their classification number and the date of diagnosis. On several occasions WFLT requested an upgrading of his medical status and classification when he himself felt he was improving.
The Warrant Officers completing these MECRB reports during 2011 have recorded their support for his continued employment at SOCOMD [Special Operations Command], his undertaking of courses to obtain the rank of Sergeant and applauded his positive contribution to his then employment in the developmental cell within SOCOMD. He had the support of the relevant Warrant Officers and the Commanding Officer whose rank was that of a Lieutenant Colonel.
In the MECRB report dated 12 October 2011 and signed by the relevant Warrant Officer on 14 October 2011, it is recorded that WFLT:
... will be posted to a non- deployable position at DMO [Department of Material Organisation] in Jan 12. He is an extremely well regarded JNCO [junior non‑commissioned officer] ... heavily involved with several important SOCOMD projects.
It states that:
... He will be posted to DMO for 3 years.
On 6 February 2012 a medical officer performed an assessment of WFLT, once more listing all of his injuries, his restrictions in terms of physical activity and some clinical findings to the extent that every bodily system was declared to be normal. WFLT completed a psychology questionnaire referred to as a K10, and it is said that his score showed very low so called risk levels for anxiety or an affective disorder and was in the same group as 67.5 per cent of the Australian adult population. All WFLT’s injuries were said to have resolved. The doctor recommended that he be medically upgraded to J21. (Exhibit R3). J21 is defined in the Defence Force HLTHMAN (Health Manual) as restricted deployment, with the individual being considered fit for employment across a wide range of military duties within the deployed and employed service environment. In terms of WFLT’s previous and then current duties this meant he was fit for land based operational deployment and field exercises.
Further medical review of WFLT was sought in July 2012 and WFLT attended Dr Stuart Saker, a psychiatrist who had seen him in the past. On the same day he saw Associate Professor Mark Sheridan who had been treating his cervical spine injury since 2008. Dr Saker recorded the reactivation of WFLT’s PTSD and in Dr Saker’s opinion the development of a major depressive disorder (MDD) in addition to the PTSD. Anti‑depressive medication was prescribed and was to be increased in dosage over a period of one week and Cognitive Behavioural Therapy with a psychologist was to be commenced. Dr Saker was to see WFLT for review in three months’ time but no further reports have been provided.
On 30 November 2011, the SCMA [Soldier Career Employment Management Agency] provided a posting notification relating to WFLT, assigning him from the 2^nd Commando Regiment to the 138 Signal Squadron in Victoria. The effective date of assignment was to be 16 January 2012 with an advised planned date out of 21 January 2013. WFLT was to replace Andreas Kelly. This document says:
IF SOLDIER HAS GROUNDS FOR RETENTION THEY ARE TO SUBMIT A PE166 ASAP TO SCMA.
A further Minute to a Department of Veterans’ Affairs (DVA) delegate dated 14 December 2011 from the Commando Regiment, referred to this Posting Order and stated that:
...
In accordance with PACMAN Chapter 4, Part 3, Division 12 the [WFLT’S] Special Forces Disability Allowance will be ceased WEF [with effect from] 16 Jan 11.
The Tribunal assumes this date was a typographical error given that the date of issue of the Minute was 14 December 2011 and it could not be retrospectively applied to 16 January 2011. It is WFLT’s evidence that he did not receive this Posting Notice as he had been required to take annual leave in December of 2011, having amassed some 35 days beyond the annual leave time allowed for retention. He sent an email (regarding his requirement to take leave to the MRCC on 19 December 2011 While he did not formally receive the Post Notice until he relocated to Melbourne in January 2012, he had been advised by telephone that his incapacity payments (SFDA) would be ceased.
On the same date of 19 December 2011, he completed an Incapacity Claim Form challenging this decision. As a result of this application a DocTracker request was lodged for more information regarding WFLT’s status from 1 June 2011 to 31 January 2012. The request noted that WFLT’s date of enlistment is entered as 6 January 2007 and that the date of his injury is listed as 6 February 2008. The relevant legislation is stated to be the Military Rehabilitation and Compensation Act 2004 (MRC Act). The query posed was whether or not the loss of the SFDA as of 16 January 2011 was due to a medical downgrade because of Neck injury.
WFLT commenced working in Melbourne in January 2012 in DMO where his official title was that of Special Operations Liaison Officer/Special Forces Projects, Soldier Modernisation SPO despite advice that he was assigned to 138 Signal Corps in Watsonia. As previously noted he was diagnosed as having developed a recurrence of his PTSD when assessed by a psychiatrist in June 2012 and in the same month his neurosurgeon recommended that he be medically discharged because of persisting cervical disc injury symptoms and the development of lumbar and sacral spinal disc degenerative changes with S2 nerve root compression. The MECRB-In-Confidence report of a Warrant Officer dated 12 October 2011 was that he was to be posted to DMO for three years.
According to his evidence WFLT was discharged from the Australian Army in September 2014 on medical grounds and has not worked since. He receives a pension in accordance with the Military Superannuation scheme at 70 per cent of his base rate of pay as a corporal and this amounts to approximately $68,000 per year. He is entitled to medical treatment for all of his injuries under provisions of the Veterans’ Entitlement Act 1986.
EVIDENCE BEFORE THE TRIBUNAL
WFLT’s evidence has been summarised under BACKGROUND TO THE APPLICATION. He did however address the various discussions he had with Warrant Officers regarding his future career path and his desire to remain in the Commando Regiment. He also expressed his desire to remain at a Corporal level as opposed to seeking promotion. Despite this he did undertake further courses toward promotion to the rank of Sergeant but was not able to undertake the final two examinations because of the physical requirements of those subjects. He also found that even if he had fully completed each course and achieved a promotion he would not have been posted into the role because of his so called Band Ranking of 4 (see later).
In his evidence WFLT cited the Special Forces service of Australia’s two Victoria Cross (VC) recipients since the VC became an Australian rather than an Imperial Award. He referred to Corporal Robert-Smith and Corporal Donaldson both of whom he believed had served as Corporals for more than 10 years in order to lead their units and did not seek promotion. This evidence was later disputed by Warrant Officer A. He also mentioned Damien Tomlinson, who was critically injured in Afghanistan by an improvised explosive device and underwent amputation of parts of both lower limbs. Despite this he successfully represented Australia at the recent Paralympic Games in Rio de Janeiro. Mr Tomlinson continues to receive the SFDA.
Mr Quinn informed the Tribunal at the final day of hearing that WFLT had been admitted to a psychiatric hospital on two occasions during the 11 months of adjourned and resumed hearing days.
Warrant Officer B.
Warrant Officer B provided a very short statement identifying himself and his dates of service as a Commando before being retired on medical grounds. He had received the SFDA allowance since its initial introduction to the Commando trade and continued to receive it after his discharge. The statement was not tendered into evidence.
Warrant Officer B joined the Army as an infantryman in 1989 and transferred to the Commandos as an ECN079 (ECN stands for employment coding number) in 1998. He had remained in that trade until he was medically discharged in 2014. According to Warrant Officer B the permanent Commando force was disbanded at the end of World War II and was not re-established, albeit in an incomplete way, until 1997. The SFDA commenced being paid in 2002 in certain Commando trades and was then extended to all trades in 2008.
In his evidence Warrant Officer B disagreed with Warrant Officer A’s advice that if an individual posted out of the Commandos they would lose their SFDA. Warrant Officer B identified the Parachute Squad and Special Forces Training School posts as continuing to attract the SFDA although they were postings outside the regiment. To his knowledge an ECN079 could spend their entire career at this coding level unless they wished to change their trade or seek promotion.

Of the 120 personnel reportedly posted out of Commando Special Forces in January 2012, Warrant Officer B estimated that only three or four of those would have been Commandos. The majority of leaving staff were support staff. Some would be transferring Commandos changing trades or moving out of their trade in pursuit of promotion. To his knowledge injured Commandos could take postings in specially recognised areas but for the DMO posting for which WFLT had been recommended it was not necessary to have been injured. Warrant Officer B had personally been involved in posting three Commandos to DMO, none of whom had lost their SFDA.
As previously stated Warrant Officer B had been discharged from the Commandos as medically unfit. He continues to receive the SFDA and expects to receive this allowance as part of his compensation payments until he reaches the age of 65.
In cross-examination by Mr Lenczner, Warrant Officer B described his personal Special Forces training and experience and that he had undertaken a two year specialist program outside of the Commandos in order to attain a Senior Sergeant position. While he was in the Special Training Centre he did not receive the SFDA. He regarded his choice as being a personal desire, rather than a compulsory move toward promotion.
Warrant Officer B estimated that there would be 20 to 25 new members admitted to the Commandos each year, although he was not certain of these figures. Warrant Officer B regarded WFLT’s position as unusual as he had niche training in development, had attained tertiary qualifications, which was unusual, and was the most expert person in his developmental cell.
Warrant Officer B confirmed his belief that WFLT could have remained in the development cell for decades. Historically this had been the case when there were appointments called Queens’ Corporals. In re-examination by Mr Quinn, Warrant Officer B identified two ex‑Commandos, a Sergeant and a Warrant Officer Class 2, who like himself had left the service but continued to receive the SFDA as part of their compensation payments. To Warrant Officer B’s knowledge the pay for a Corporal, including allowances, was approximately $100,000.00 per annum and that of a Private in the Infantry approximately $80,000.00 per annum.
Warrant Officer B knew Warrant Officer A from their past training and was aware that Warrant Officer A had never worked with Commandos. The latter’s input and knowledge of the service was obtained from army documents and as a career adviser he made recommendations to the Regimental Sergeant Major who in turn made the actual decision regarding any individual Commando. Warrant Officer B was a company Sergeant Major in the Commandos and did not deal directly with Warrant Officer A.
Warrant Officer A
Warrant Officer A was the career advisor for the Special Services, having commenced in that position on 20 January 2014. He expected to leave the position in January 2016 at which time he would return to the SASR with a promotion to the level of Regimental Sergeant Major. Warrant Officer A had joined the Defence Force in 1988 and the Special Forces in 1991. He therefore has 24 years of SASR service and has fulfilled roles such as teaching whilst a Corporal. It is not known whether he has ever undertaken deployment overseas in a war-like situation. He described his current position as managing soldiers as directed by the Chief of the Army. He enlarged on this statement saying it was his role to identify persons suitable for posts so that they could progress in their career. He was also required to work out merit lists for promotion.
Warrant Officer A had been presented with a list of questions to which he provided detailed answers. These will be referred to in more detail under documentary evidence but it would appear from the document that Warrant Officer A has identified the questions in black type, the established criteria in blue type, alternative questions within the question in red type and his opinion as the career advisor in green type. Warrant Officer A gave his evidence by telephone.
Warrant Officer A confirmed the above details of his service and role. In his job as the career advisor for Special Forces he was required to manage soldiers from the rank of Private through to Warrant Officer Class 2. This included ECN079 Commandos. He described his job as identifying future vacancies in the Special Forces and suitable persons to fill those positions. This career management role involved establishing five year plans for individuals in terms of career advancement and postings. Following performance of these tasks a PAC notification is made. PAC is an acronym for Promotion Advisory Committee. Ultimately the promotions are determined by the Committee. The PAC is chaired by an officer with representatives from individuals outside the particular trade of the Special Force member.
The Tribunal asked that Warrant Officer A identify the qualifications and role of the so called outside persons to which he responded that they were other career advisors within Career Management Agency but they did not know what they are looking for. Warrant Officer A said it was his duty to explain individual technical skills and how they rated in the overall plan from high to low. In other words, it was a measure of the individual’s expertise. It was clarified, at my request, that this outside career advisor was a member of the military and not independent in the usual sense of the word.
Warrant Officer A was asked to explain the term trade as attached to the employment coding number ECNO79. After some debate Warrant Officer A agreed that the trade was, in addition to the usual infantryman training, the acquisition of special skills such as parachuting, working with boats or working with helicopters. Warrant Officer A identified his own skills as basic infantry such as firing rifles, throwing hand grenades, driving trucks, using a radio and having some skills in relation to helicopters, boats, parachuting and the use of maps and surveillance. This he said was his trade model.
Warrant Officer A was trained in what he described as a lot of the stuff that Commando personnel are qualified in but he also had other niche capabilities outside the Commando trade. These niche operations were, for example, working behind enemy lines. The Tribunal endeavoured to obtain information from Warrant Officer A regarding the differences between the SASR and the Commando regiment in their deployments to war‑like settings or in declared wars. Warrant Officer A’s response was not enlightening. Warrant Officer A confirmed that in his written response to questions all paragraphs in green type were his responses and reflected his opinions.
Warrant Officer A addressed the allowances paid to individuals in Special Forces, there being a differential rate according to rank. All allowances are now bundled into one, known as the SFDA. According to Warrant Officer A, the SASR received the highest rate of the SFDA in terms of dollars, the Commandos slightly less and training staff at a lower rate than either the SASR or Commandos.
Warrant Officer A was taken through the questions put to him and his answers received by the Tribunal on 14 July 2015. The criteria for payment of the SFDA were said to be determined by the Commanding Officer of the relevant regiment in accordance with the instructions in PACMAN (Promotion Advisory Committee Manual) and the SOCOMD Management of Special Forces Disability Allowance of 19 July 2012. These criteria according to Warrant Officer A had not changed in the intervening seven years since its introduction in 2007 and had been verified in 2015.
He said that WFLT’s medical classification made it unlikely that he would be posted to a unit or role that attracted payment of the SFDA and such a position was unlikely to be recommended by his Commanding Officer. Had he not been injured Warrant Officer A opined that WFLT could not expect to remain in his Commando regiment throughout his career and could be posted to a variety of roles in accordance with the determination entitled Employment Specification Commando. This could involve posting to a Commando regiment Special Forces Training Centre, Force Command or non-corps positions, with such postings usually being for a period of three years. Warrant Officer A referred to a recent American publication (dated 5 November 2015) on Army structure authored by David Barno and Nora Denshell and quoted the principle of up or out. According to Warrant Officer A, they’re Americans but our systems are pretty much duplicate.
There had been plans to post WFLT into a pool position in 2009 but this was pending a decision from the Medical Examination Classification Review Board (MECRB), as WFLT had been recommended for transfer to the Royal Australian Corps of Military Police. Following consultation, on 14 May 2011 WFLT was offered via email a post at the Special Forces Training Centre or to the DMO. It is said that WFLT had elected to follow the DMO option. According to Warrant Officer A, WFLT had been informed that his choice of a DMO posting meant that he would lose his disability entitlements. (Tribunal note: see later - there is no evidence of an email or letter to WFLT, only advice to the DVA).
Warrant Officer A confirmed that WFLT was posted to an assistant administrator position at 138 Signal Squadron in Melbourne with effect from 16 January 2012 as there were no positions available at DMO such that he could retain his SDFA. His medical examination coding at the time of posting was L27 but he was downgraded to MECJ40 on 7 February 2012. According to an email dated 12 May 2012 from the Warrant Officer/Sergeant who was the Commanding Officer of 2^nd Commando Regiment it had been intended to create a Sergeant’s position for WFLT to post against in 2012. Warrant Officer A pointed out that WFLT was not fully qualified for promotion to Sergeant as he was lacking two qualifications. He could therefore only be promoted to the rank of Sergeant by a medical waiver and this had not been forthcoming and as a result the higher duties allowance (HDA) could not be paid. The HAD differs from the SFDA as it is only attracted by promotion not trade (S186 MRC Act).
In response to the question of what was the plan for WFLT after 21 January 2013, when it is argued the posting cycle concluded, Warrant Officer A replied that as it had been the plan to trade transfer WFLT to the Royal Australian Corp of Military Police in 2010 and as this was not immediately possible, he had been offered and accepted posting to the Commando Regiment Development Cell as his medical status did not permit return to his active regiment. When his health did not improve alternative options in the Training College or DMO were offered although Warrant Officer A said there were no vacant postings in DMO.
In response to the question as to whether WFLT could have remained in that particular post for any length of time, Warrant Officer A said that according to the Career Management Model Manual, a Commando of WFLT’s ECN was expected to progress through a range of qualifications and appointments and spend an average time in the rank of Corporal of five or six years. In 2011 WFLT had been deemed as being in Band 4 as defined by the Career Management Cycle Guide as:
Member’s performing satisfactory at rank within primary trade. Noted not fully qualified IAW, MAE (specialist course). Member is not competitive with his peers noting his seniority [2000]. Member considered to be at ceiling rank.
According to Warrant Officer A the only way WFLT could have continued to serve as a Corporal would be under a critical skills waiver supported by the regimental headquarters and at the cost of precluding the acquisition of a new asset in the form of a younger Corporal gaining experience in the development cell. Warrant Officer A advised that his answer to the question was essentially No. As a result Warrant Officer A was of the opinion that WFLT would have been medically separated from the ADF [Australian Defence Force] on 21 January 2013 and would not be entitled to SFDA thereafter.
Warrant Officer A was asked the question: Why would WFLT not have remained in the unit until compulsory retirement age, if he had not suffered his injury? This question was directly answered by Warrant Officer A stating that some roles attracted SFDA and some did not. However, he expanded on this statement by advising that WFLT could have been trade transferred to the RACMP, been medically separated from the Australian Defence Force or elected to voluntarily separate or could have been retained under a critical skills waiver at unit request.
Warrant Officer A confirmed that the SFDA was first introduced to the Commando trade in 2002 and by a determination of the Defence Force Remunerative Tribunal in 2008 was applied to the Special Forces by combining all previously separate allowances.
Warrant Officer A was asked a series of further questions that relate essentially to SASR troopers. He said there were similar expectations for SASR troopers as those outlined in the Commando Career Management.
In his evidence-in-chief, Warrant Officer A advised that he had forfeited his SFDA when he became a Career Adviser. This had amounted to $39,254 annually. He expected that he would be returning to SASR in January 2016 as a Regimental Sergeant Major and hopefully would catch up the lost $39,254. I asked Warrant Officer A several questions in relation to the so called Commando Accession Plan of 2013, the statistical data on which it was based and the fact that he had actually added an extra year to the so-called Sergeant Model. Warrant Officer A said he had been directed to do so by a Lieutenant Colonel. Warrant Officer A denied that WFLT had been relegated to Band 4 because of his injury, stating it was based purely on performance.
A great deal of statistical data and promotional planning had been provided to the Tribunal but this is subject to the Confidentiality Orders. It is quite clear that there is a pyramidal structure, common to many large organisations, wherein the number of senior positions reduce significantly in accordance with the rank. According to Warrant Officer A, there was only one Corporal with an enlistment date of 2006 who was still serving. This was attributed to the fact that as the war in Afghanistan ceased in 2013 many Commandos left the ADF shortly thereafter. Warrant Officer A could not provide any numbers as to operational Commandos at any particular time. Promotion was said to be determined predominately by performance, potential, the extent of training and the individual’s experience. While the Commanding Officer had a major input into promotions they were said not to have a vision of the future and that was the job of the career advisor. The Regimental Commanding Officer had an input only up to the level of promotion to Corporal. According to Warrant Officer A, beyond that rank the career advisor was the delegate with respect to promotion.
In relation to WFLT’s claim that he did not receive any notification of his posting to the Signal Corps in Melbourne, Warrant Officer A said that this was incorrect as the removalist hired to relocate WFLT to Melbourne (Toll Logistics) requires copies of the posting order before they will commence the removal. Despite the fact that WFLT’s seniority was stated to be from late 2000 it was confirmed that his starting date in the Commandos was 8 January 2007 and that he commenced at the rank of Corporal. It was also confirmed that the retirement date for an ECN079 Commando was now 60, having been increased from 55.
In examination-in-chief Mr Lenczner referred to the report and the detailed supporting documents and statistics which will not be revealed in this decision. He also confirmed that while WFLT had been assessed as being Band 4, he could have proceeded to undertake further training courses while his medical classification was L27, although he was only L27 for a period of nine months. L27 of the medical employment classification system limits deployment to the land environment as medical support is required. WFLT had been considered by the PAC (Promotion Advisory Committee) who according to Warrant Officer A, were not told the Band of an individual but merely where they rated in the group as being average, above average etc.
Actual career interviews were not performed at the Corporal level. In the case of WFLT, who underwent a PAC assessment in late 2011 and had been graded as Band 4 on 25 November 2011, the actual assessment result, according to Warrant Officer A, had not been released until May 2012. The delay of six months was said to have arisen as a result of the requirement to forward the advice to the Commanding Officer and then to the Regimental Sergeant Major who is expected to discuss the rating with the individual and the Career Advisor.
In cross-examination by Mr Quinn as to the frequency of WFLT’s interviews Warrant Officer A advised that the only computer recording of an interview was in 1990. According to Mr Quinn there had been one interview in 2009 with a Senior Warrant Officer. Mr Quinn pointed out that the Band 4 assessment had been made during the period when WFLT was undergoing rehabilitation following his injury and the actual determination took place when he was working in the Development Cell by himself and therefore not subject to comparison with other Commando members.
Warrant Officer A confirmed that he had no access to or knowledge of WFLT’s medical records or his injuries at any time.
WFLT Recalled
Following Warrant Officer A’s evidence WFLT was recalled to clarify certain points. He confirmed that in 2008 his injuries were a cervical vertebral disc prolapse at C6-7 with nerve compression, L5/S1 and S1/S2 disc bulges with nerve compression and PTSD. During the calendar year 2008 he was on sick leave for 10 months. With respect to his mooted transfer to the Military Police, WFLT advised that this had been a suggestion made by his treating neuro-surgeon Professor Sheridan on the basis that he had previous experience as a policeman in the early 2000’s. Professor Sheridan had been of the opinion that resuming full Commando duties would be inadvisable.
WFLT confirmed that he had been aware that he could lose his SDFA as he had spoken with a DVA advisor while undergoing rehabilitation and was given advice as to his entitlements to compensation under the MRC Act. He had expected to be posted to an approved posting at DMO and had received the advice as to the posting order after he re‑located to Melbourne as he was on forced annual leave. He had not been told that the posting at DMO to which he had expected to be assigned was no longer available. In January 2012 WFLT had reported to the DMO at Victoria Barracks after having been interviewed by the officer in charge months earlier and shown where he would work etc. He actually stayed at the Victoria Barracks for several months despite the Signal Corps to which he had been posted being located in Watsonia.
WFLT advised that his temporary upgrading to L27 had been done on paper. He had not been seen and assessed by a medical practitioner. Once he arrived at DMO he was assigned the J42 rating and had a medical examination in February 2012. He confirmed that he had only one career interview but since his downgrading he had been involved in two discussions with the Regimental Sergeant Major of his unit. He denied having ever received formal advice of his posting and loss of the SDFA. While employed in the Developmental Cell of the Commandos he had endeavoured to remain fit but as he was on several prescribed medications including Seroquel, Valium, an anti‑depressant, Endone, non-steroidal anti-inflammatory tablets and Panadol, he was precluded from deployment, due mainly to the use of anti-psychotic medication and opioids. These medications also impacted on his physical performance and efforts to maintain or improve his physical activity levels.
Lieutenant Colonel Michael Say

Colonel Say is an officer in the Australian Regular Army and has acted on numerous occasions as the Chairman of the PAC. He had provided a statement dated 20 June 2016, although it is unsigned and undated. (Exhibit R4)
Colonel Say described and defined the Banding system:
·Band A - an individual was suitable for promotion if there was a vacancy;
·Band 2 - a member was suitable for promotion but there were no positions existing;
·Band 3 - individuals suitable but needed to do further courses and were unlikely to be promoted; and
·Band 4- - the individual had reached their ceiling rank.
Colonel Say interpreted WFLT’s listing as a Band 4 being indicative of him not being as competitive as his peers, not fully qualified and therefore required to do further courses. Colonel Say had said that an individual could complete at least eight years in a rank before being allocated to Band 4 but did note that despite his seniority from 2000 WFLT had not been a member of the Army between 2002 and 2006.
Colonel Say confirmed that the PAC does not look at the individual’s medical history and under reconsideration of employability the PAC looked at the courses undertaken and the individual’s medical status only in terms of their MEC classification. The annual report prepared for each Commando provided information regarding leadership, communication skills and their trade and technical skills. At the ECN079 level there was said to be a great deal of competition and very few vacancies. Transfer of a Commando to another branch of the Special Forces depended on the development needs of the member, the member’s request and the member’s capability. In order to be promoted to a Sergeant level an individual had to be considered by the PAC. At the level of Corporal, the PAC relied on the advice of the career advisor and their assessment of the individual.
When asked by Mr Quinn about a Banding at level 4 and whether that indicated the individual’s career as a Commando was finished, Colonel Say said the Banding had nothing to do with promotion or ability. Mr Quinn pointed out that WFLT had discharged from the Commandos in 2002 and spent four years as a policeman before re‑enlisting in January 2007. He questioned whether this had been taken into account. Colonel Say indicated that the main period given consideration in WFLT’s case had been from 2007 onwards. Mr Quinn also asked if Colonel Say would have expected that information disclosing WFLT’s injury sustained in February 2008, the diagnosis of PTSD in March of 2008 and the treatment of both conditions would have been provided to the PAC and if it had been provided. Colonel Say could not answer the latter question but believed that such information should have been provided. He was not able to comment on what the PAC did in 2008 but did note that when the PAC sat in 2012, WFLT’s medical grade was J40. He agreed that this meant that WFLT could be posted anywhere although this usually did not occur because of the need for continuity of medical care.
Mr Quinn said that WFLT had been re-assessed from J40 to L27 on paper without a medical examination. Colonel Say could not comment on what happened in 2011 but said that the current requirements were that a medical physical examination and history recording were essential for such reclassification.
Mr Quinn pointed out that his enquiries and conversations with discharged Special Forces personnel suggested that WFLT was the only individual not receiving the SFDA following discharge on medical grounds. He asked Colonel Say what was different about WFLT’s case and did it relate to the fact that he had both psychiatric and physical injuries? Colonel Say indicated that Special Force members diagnosed with PTSD are not able to be deployed and that there were different requirements for physical and psychiatric injuries regarding employability and development.
In further examination by Mr Lenczner, Colonel Say was taken to the data relating to what was considered the normal progress of a Special Forces soldier and the evidence of Warrant Officer A that a Corporal was expected to move up to the next rank of Sergeant in a period of five years on average. Colonel Say was not prepared to put a time band on such a promotion but reiterated that in order to achieve promotion the individual might have to undertake further training outside the Commando regiment. In Colonel Say’s opinion some individuals might take four years and others eight to ten years to reach the required level for promotion. He regarded the promotion plan as a guide. While five to six years would be an average figure of duration at the level of Corporal before proceeding to Sergeant, the range in fact was between three and ten years.
Colonel Say clarified the date of the PAC meeting relating to WFLT. He said that PAC meetings took place in late 2011 and the result when published was dated 1 June 2012. Now the PAC meetings occur between September and November and then again in February and April and are notified in June. He confirmed that the reports of various military doctors would not be considered, only the medical rating.
DOCUMENTARY EVIDENCE
The Tribunal has been provided with a great deal of documentary evidence, much of which is covered by the confidentiality orders. However many of these documents are of limited relevance to the issue before the Tribunal.
Medical Employment Classification (MEC)
The relevant MEC reports have been referred to under BACKGROUND TO THE APPLICATION but it is to be noted that between 8 February 2008 and 23 May 2014, WFLT’s MEC was changed 12 times. Prior to 8 February 2008, he had been classified as MEC1, which equates to no medical restrictions whatsoever.
Performance Reports
Where relevant these have been summarised also under BACKGROUND TO THE APPLICATION. The report of May 2010 from the Regimental Sergeant Major is possibly the most relevant, being some two years after WFLT sustained his injury and some eighteen months before transfer to the Signal Corp. According to this report discussions had been held with a Senior Warrant Officer Class 1 on 16 April 2010 and it was indicated that Career Management Special Forces would support WFLT’s retention in the unit and future promotion to Sergeant due to his special force’s qualifications and additional training as a member of the S8 Development Cell. It was suggested that given his depth of experience, manner and communications ability he would be well suited to be an instructor at the Royal Military College of Defence in first or second class.
In terms of his then current employment it was said that WFLT had contributed significantly to the acquisition of several new equipment items for the unit and increased the unit’s entitlement to existing items. The relevant Warrant Officer acting as the Regimental Sergeant Major could not foresee any reason why WFLT would not be able to be deployed at either company or regimental level on operations. The Warrant Officer gave an unrestricted referral in support of WFLT’s work in May 2010. He concluded that WFLT would remain an asset to the unit and more broadly the army in this capacity. In 2011 a presumably new Warrant Officer 1 was referred to in emails relating to what WFLT had been told when interviewed by the two relevant Warrant Officers in early 2011. The content of these emails is of limited value given they refer to WFLT by surname, his surname being of two syllables and to another Corporal whose surname is of three syllables with the first syllable of these names being the same. According to Mr Quinn the tri-syllable named Corporal does exist and had also been injured at about the same time as WFLT.
Posting Advice of 30 November 2011
This document is undated and unsigned. The reference to 30 November 2011 is included but there is no signature or identification of the drafter’s name and title or the releaser’s name and title. This document states that WFLT has been transferred from the relevant Commando regiment to 138 Signal Squadron. The reason for the transfer is said to be in confidence. The effective date is said to be 16 January 2012 and the time in this location is to be greater than 12 months, with a planned date out of 21 January 2013. WFLT is said to be replacing Andreas Kelly and the recipient of this advice is advised to contact the local customer service centre to organise cessation of the disability component. A contact name and telephone number is provided but this individual has not signed this so called advice.
A minute from the relevant regiment dated 14 December 2011 and signed by L Anderson, Corporal is addressed to Department of Veterans’ Affairs Delegate (unnamed) advising of the cessation of the SFDA to WFLT as of 16 January 2011 (sic).
On 19 December 2011, WFLT contacted the MRCC challenging this decision relating to the SFDA and notifying them that he was on leave for the next three weeks and contactable only by email. On the same date WFLT completed an incapacity claim form detailing his injuries and dating his claim for SFDA continuation from 16 January 2012 for a minimum of one year with a possibility of up to three years.
In an undated response from the MRCC addressed to WFLT he was advised by the delegate of the MRCC that there was no confirmation that he had been posted out of his development cell position within the Special Forces to 138 Signal Squadron and the only information available from the ADF was that his posting out was part of the posting out cycle of 120 personnel. It also stated that when posted from 2 CDO REGT you forgo all components of Special Forces Disability Allowance.
By letter dated 29 May 2012 WFLT submitted a request for reconsideration of the decision for review by the Veterans’ Review Board based on his argument that his posting to 138 Signal Squadron was not a normal posting and not in accordance with the career path outlined in the Manual Army Employment (Commando). He requested that his claim for SFDA during posting outside of 2 CDO REGT be approved.
This request was accompanied by two Statutory Declarations from a Leigh Scott Bassett who described himself as a Project Manager with Diggerworks who in October or November 2011 had been made aware that WFLT had been identified as suitable to fill the position in DMO requiring the skills of a military member with Special Forces background, possibly one who was in rehabilitation. Mr Bassett states that by December 2011 he was aware that WFLT would definitely be arriving on a loan posting in January 2012, although the exact nature of his duties were yet to be determined. Mr Bassett was informed that he would be acting as WFLT’s supervisor. The second Statutory Declaration was made by a Bernadette Joan Allan whose statement was to the same effect as that of Mr Bassett. She confirmed that WFLT was posted into her area in January 2012 and was to work part time in her project JP 2088.
The Director of Soldier Modernisation Systems Program Office, Marcus Smith, provided a letter in support of WFLT’s claim for Special Force Disability Allowance continuation. He explained the need for the Defence Materiel Organisation to appoint a full time military member to work within the Special Forces Project Office of DMO. This was to fill a designated position previously occupied by a Special Forces member who had been reassigned to the Land Systems Division. WFLT had been identified as possessing the most appropriate experience and training for the role. The letter states that due to the lack of a suitable vacant position within DMO at Victoria Barracks, WFLT was posted to 138 Signal Squadron based in Watsonia and attached to the Land Systems Division with effect 16 January 2012. According to Marcus Smith the role required current SF training and experience which could only be provided by a qualified SAS or Commando member.
The actual determination by the MRCC denying liability to pay the SFDA for the period from 16 January 2012 to 21 January 2013 was made on 27 April 2012.
Directorate of Soldier Career Management – Army
Mr Quinn had sought information from Colonel Gallaway, who is the Director of the Australian Army Directorate of Soldier Career Management. In response to this request and a series of questions posed by Mr Quinn, Colonel Gallaway explained that the postings of soldiers were made on the requirements of the service concerned, soldiers’ ability and development and their personal wishes. In relation to the Special Forces and the receipt of the SFDA, Colonel Gallaway advised that qualification for the disability allowance depended on the role occupied and this required determination by the commanding officer of the unit in consultation with other staff in Special Operations’ Command, his Directorate and various specialists.
Colonel Gallaway was not prepared to engage in conjecture as to whether or not an individual who had been injured to the extent of WFLT would have qualified for postings in units that attracted the SFDA. He considered there were too many variables confronting the decision maker.
Colonel Gallaway stated that ideally a Commando Corporal should have experience in a minimum of two areas, depending on their interests. The areas available to an ECN079 were confined to those in the Commando Regiment 1 or 2, Special Forces Training Centre, Parachute Training School, Forces Command Units that were primarily an instructional role and selected non-Corps positions, including Defence Force Recruiting.
While Colonel Gallaway did not believe WFLT would have stayed in the unit until the compulsory retirement age (now 60) he regarded it as possible that he could have served in other postings which attracted payment of the allowance during part or all of such postings. This opinion was not subject to any question of promotion or the absence of promotion as in Colonel Gallaway’s opinion the only relevant consideration was whether or not WFLT would continue to receive the allowance as a corporal.
Army Soldier Enhanced Career Management (ECM) Model – Implementation
On 1 October 2013, Lieutenant General D L Morrison, Chief of Army, issued a document entitled CA Directive 47 – 13. This was described as a review of the career management system as the latter had remained fundamentally unchanged since the mid-1970s and needed to be enhanced to meet the contemporary and future needs of army in a more flexible and diverse Defence Force.
This Directive was to come into force in approximately March 2014 and was to be reviewed in September 2015. In summary, a new model was to be delivered through five lines of operation, these being average time in rank, talent management, flexible workplace, development of career advisors and command teams and one career – many jobs. This Directive appears to have formed the basis of Warrant Officer A’s statement and his subsequent evidence before the Tribunal, in that it contains similar diagrams, flowcharts and states that the average time in rank for the range of Corporal to Sergeant and then to Warrant Officer 2 was to be amended to five years, as five years would allow a soldier to complete postings in each rank, gain experiential knowledge required to advance and enable the chain of command and career advisors to better assess a member’s potential.
For security reasons the Tribunal has not detailed the content of this directive. It is however to be noted that this Directive was not to come into force until 2014, at which time WFLT was awaiting discharge on medical grounds. It was certainly not in force in 2011-2012 when the decision making process regarding his qualification for SDFA was undertaken.
Calculation of Normal Weekly Earnings issued by the Department of Veterans’ Affairs (DVA)
The Tribunal was provided with a so-called Business Line Directive from the DVA relating to Normal Weekly Earnings (NWE) under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) and in particular s 8(10)(a) and s 8(10)(b) directing how this was to be estimated. The directive stated that it was no longer appropriate to rely on information from the Department of Defence to determine the period for which a particular allowance should be included in the NWEs. The policy was to have no application to consideration of cases under the MRC Act but for DVA clients the NWE required a determination of that rate at the date of discharge and any pay related allowances would now be included in NWE’s. The directive seemed to imply that under the MRC Act the provision for special allowances would only be included for as long as the former member would have continued to receive those allowances if they had not continued to serve and/or were not incapacitated for service. This document is signed by the Assistant Secretary, Mr Mark Harrigan and dated 17 June 2015.
Jurisdictional Policy Advice No 2015/01 Safety, Rehabilitation and Compensation Act 1988
This document issued by Comcare relates to s 8(10) of the SRC Act and in summary caps the NWE of an employee who continues to be employed by the Commonwealth or a licensee at the amount the employee would receive if they were not incapacitated for work or had ceased to be employed by the Commonwealth or a licensee at the greater of the amount they would receive if they had continued in the employment they were in at the date of injury or on the date their employment by the Commonwealth or licensee ceased. This policy advice appears to have been issued in response to the Full Court of the Federal Court decision in Comcare v Simmons (2014) 220 FCR 102.
RELEVANT LEGISLATION
This application has been brought under the MRC Act but both parties have referred at some length to sections of the SRC Act. The relevant sections of both Acts are therefore included.
Section 11 of the MRC Act provides for the Ministerial determination of pay related allowances.
Section 85 provides for compensation for incapacitated full time members and states:
85 Compensation for incapacitated full time members
(1)The Commonwealth is liable to pay compensation to a person for a week if:
(a)the person is a Permanent Forces member or a continuous full time Reservist for the week; and
(b)the Commission has accepted liability for a service injury or disease of the person; and
(c)the service injury or disease results in the person’s incapacity for service for the week; and
(d)a claim for compensation in respect of the person has been made under section 319.
...
(2)The amount of compensation that the Commonwealth is liable to pay is worked out under section 89 or 89A.
Section 89 determines the amount of compensation to be paid to current members and states:
89 Amount of compensation for current members
(1) The amount of compensation that the Commonwealth is liable, under section 85, 86, or 87, to pay to a member for a week is worked out using the following formula:

Member’s normal earnings

for the week
_ Member’s actual earnings for the week
...
(2)However, if an amount of compensation worked out using the formula is nil or a negative amount, then the Commonwealth is not liable to pay the compensation for the week.
(3)Use this table to work out a member’s actual earnings and normal earnings:

Section 91 provides methods of working out normal earnings and in particular s 91(1) states:
91 Working out normal earnings
(1)The normal earnings for a week for a Permanent Forces member, or a continuous full time Reservist, who is incapacitated for service means the amount worked out using the following formula:

Member’s normal ADF pay for the week

+

Member’s normal pay‑related allowances for the week

(2)The member’s normal ADF pay for a week means the amount of pay that the member would have earned for the week as a member of the Defence Force if the member were not incapacitated for service.

Note:The member’s normal ADF pay might be adjusted under Part 5.
(3)The member’s normal pay-related allowances for a week means the total amount of compensable pay related allowances that would have been paid to the member for the week if the member were not incapacitated for service.

In relation to normal earnings s 91(4) is relevant stating that:
(4)The Chief of the Defence Force must advise the Commission in writing of the date on which each compensable pay related allowance would normally have ceased to be paid to the member if the member were not incapacitated for service.
(5)In this section:
compensable pay-related allowance for a member means a pay related allowance:
(a)that was being paid to the member immediately before the onset date for the member’s incapacity for service; or
(b)that would be paid to the member because the member is promoted, as mentioned in paragraph 186(2)(b); or
(c)that the member would have been paid after completing his or her initial training, as mentioned in section 189.

Section 92 outlines the means for working out actual earnings.

The simplified outline to the MRC Act states that the Act provides the compensation and other benefits to be provided for current and former members of the Defence Force who suffer a service injury or disease. In the Second Reading speech by the Minister for Veterans’ Affairs, The Honourable Donna Vale MP on 4 December 2003 the Minister said that the commencement date was planned for 1 July 2004 and that the Bill adopted the Veterans’ Entitlement Act 1988 (VE Act) beneficial beyond reasonable doubt standard of proof for war-like and non-war-like service and the normal civil standards of reasonable satisfaction for peacetime service claims. It was to use the Statements of Principles from the VE Act in linking injury, disease or death with service.
Compensation available was to be for economic loss and non-economic loss and in relation to the economic loss the payments to applicants was to match and in many cases surpass the payments available under the VE Act and the SRC Act. These payments were to be available to the age of 65. It was stated that members who are severely injured will have their compensation enhanced and in most cases permanent impairment payments for injuries from peacetime service will be enhanced from those available under SRCA. The Bill was said to blend the VEA and the SRCA regimes for medical treatment with the emphasis to fall on rehabilitation to enable injured members to make a full recovery and to return to work where possible.
As s 91(4) requires that the Chief of Defence advise the Commission in writing of the date in which payment of allowance would normally have ceased to be paid to the member if the member was not incapacitated for service, the respondent has evoked the section of the SRC Act that deals with this particular concept, that being s 8(10)(a) and s 8(10)(b) of the SRC Act which state:
8 Normal weekly earnings
...
(10)If the amount of the normal weekly earnings of an employee before an injury, as calculated under the preceding subsections, would exceed:
(a)where the employee continues to be employed by the Commonwealth or a licensed corporation—the amount per week of the earnings that the employee would receive if he or she were not incapacitated for work; or
(b)where the employee has ceased to be employed by the Commonwealth or a licensed corporation—whichever is the greater of the following amounts:
(i) the amount per week of the earnings that the employee would receive if he or she had continued to be employed by the Commonwealth or the licensed corporation in the employment in which he or she was engaged at the date of the injury;
(ii) the amount per week of the earnings that the employee would receive if he or she had continued to be employed by the Commonwealth or the licensed corporation in the employment in which he or she was engaged at the date on which the employment by the Commonwealth or the licensed corporation ceased;
the amount so calculated shall be reduced by the amount of the excess.
SUBMISSIONS
Mr Quinn on behalf of WFLT
Before proceeding to his submissions Mr Quinn outlined the history of the MRC Act identifying, in his opinion, its major aim being to provide for early rehabilitation of injured Defence Force members, as this had not been provided quickly under the SRC Act or the VE Act. He also advised that the SRC Act was currently being re-written in part in order to address military personnel specifically.
Mr Quinn drew the Tribunal’s attention to the similarity in wording of s 91(5)(a) of the MRC Act and that of s 8(10)(a) of the SRC Act. Both refer to normal weekly earnings as those existing immediately before the onset of any Commonwealth employee’s incapacity.
Mr Quinn had not been able to find any existing case law that was on all fours with the factual scenario of WFLT. In both Re Kennedy and MRCC and Re Hillman and MRCC the decision had been determined in accordance with s 8 of the SRC Act. In Re Kennedy a member of the SASR succeeded in having the payment of his Special Action Force Allowance restored and continued. In contrast in Re Hillman and MRCC the applicant’s receipt of compensation payments including the SFDA was correctly ceased on the date that his posting to the SASR was due to expire, this having been predetermined by the career advisor on the basis that there was no suitable position available within the SASR that attracted the continuation of the SFDA. In Re Hillman, the soldier had been medically discharged in December 2007.
More recently Mr Quinn had been involved in an application wherein reconsideration by the MRCC had been requested and was successful in that the cancellation of payment of this Commando’s SFDA was reversed (the name of the individual was provided).
Mr Quinn summarised the evidence before the Tribunal and submitted that the correct date of the decision to terminate WFLT’s payment of the SFDA was in 2012 not 2011 and that the retirement age for members’ of Special Forces was now 65. He also submitted that WFLT’s posting to the Signal Corps was not in accordance with the MAE (Manual of Army Employment) as it took WFLT out of his trade and rank and had nothing to do with his original advised appointment to DMO or another role in the Commando regiment.
Mr Quinn contended that the respondent’s case was based on a hypothetical construct that in turn was based on so called statistics in relation to the time span an individual in the Special Forces would continue to serve, particularly at different ranks. From the evidence of Warrant Officer A, this average time was five years and on the evidence of Colonel Say it was three to eight years. At the time of his injury WFLT had served as a Commando for just over 12 months, despite his seniority having been dated from December 2000. Mr Quinn also referred to the decision of Deputy President Forgie in Re Frew and Comcare that addressed the requirement that decision-making be based on fact not on speculation.
It was contended that WFLT’s assessment, in terms of his performance as judged by comparison to that of his peers was, if not impossible, extremely limited by the fact that WFLT had spent three years in what was essentially a rehabilitation program. During this period he had performed solo niche specialist services bereft of a peer group with whom he could be compared, he was confined in terms of his physical injuries to meeting the physical requirements of Commandos and for most of the period he was taking medication, the side effects of which would impair his abilities or in the case of anti‑psychotics and opioids, preclude him from maintaining the required standards in tasks such as firing a rifle.
Mr Quinn argued that WFLT had been medically mishandled or mismanaged and that there was no connect between his medical treatment and progress and his career management. In particular, no medical information had been available to the career advisor whose input to the PAC was vital in terms of the decision made by the MECRB and to the Band 4 assignment of WFLT based on peer competition. All communications between WFLT and his relevant Warrant Officers prior to January 2012 had led him to believe that he would be transferred to a suitable Commando based position within DMO and he had not received any advice in accordance with s 91(4) of the MRC Act from the Chief of the Defence Force or their delegate advising the Commission in writing of the date on which compensable pay related allowance would normally cease.
Mr Quinn drew the Tribunal’s attention to the different approach taken by the DVA and that of the MRCC in response to the Full Federal Court decision in Comcare v Simmons.
Mr Quinn in his final submission relied purely on s 91 of the MRC Act in support of his contention that WFLT was entitled to have the Special Forces Disability Allowance accepted as being part of his normal weekly earnings, dating from the time of his incapacity in February 2008 and until such time as the incapacity no longer prohibits or impacts on WFLT’s earning potential.
Mr Lenczner’s submissions on behalf of the respondent
Mr Lenczner argued that the Tribunal was to make its determination based on the facts and the facts were that WFLT’s posting ended on 21 January 2013 (T66). At that time he was not receiving SFDA, having been posted out to a Signal Corps with effect from 16 January 2012.
Mr Lenczner contended that WFLT had not produced any evidence that he could be promoted or moved to a position in which the SFDA would be retained. To the contrary, as he was in Band 4 and thus considered to be at his ceiling rank, he was not to be considered again at any future PAC.
Mr Lenczner distinguished the decisions in Re Hillman and Re Kennedy on the basis that they involved members of the SASR and were determined in accordance with the SRC Act. He also urged the Tribunal to ignore the Jurisdictional Policy Advice number 2015/01 (Exhibit A1) issued by Comcare, following the decision in Comcare v Simmons particularly, as a further advice from the DVA in relation to the interpretation of s 8(10) of the SRC Act, was that the Comcare Policy Advice did not apply to applications lodged under the MRC Act.
Mr Lenczner explained the task before the Tribunal as:
This is a hypothetical exercise, just like the hypothetical exercise in section 8(10) [SRC Act]. You know that the person has been injured and you determine whether in fact the allowance which is paid to him as compensation because of the injury would have been paid to him if he had not been injured.
It was submitted that WFLT was fully aware of the fact that he would be losing his SFDA given the content of emails included in the T-documents, wherein a Warrant Officer from the Commando Regiment advised a more senior Warrant Officer that WFLT had elected to post to DMO (Special Forces Project) and had been informed that in doing so, he would lose his disability entitlements. These emails cover the period 12 to 14 May 2012.
This contention was challenged by Mr Quinn and also by the Tribunal as both were under the impression based on the evidence that the DMO position to which WFLT had originally been assigned, had been a Special Forces position attracting SFDA.
Mr Lenczner submitted that WFLT had served for five years as a corporal from January 2007 to January 2012 and on the evidence of Lieutenant Colonel Say and Warrant Officer A he would not have been allowed to stay in a corporal’s role for a longer period in the event that he had not been injured. Mr Lenczner referred to the VRB decision which extended the payment of WFLT’s SFDA to January 2013 on the advice of the Chief of Defence (unnamed) from 16 January 2012 until 21 January 2013 inclusive. [The Tribunal notes that the only additional evidence before the VRB was that of Warrant Officer A, who was said to have been authorised to give evidence to the VRB by the Director of SCEMA, Colonel Susan Coyle.]
Given the concerns of Mr Quinn and myself, Mr Lenczner sought approval to provide written submissions addressing the interpretation of the law, particularly s 91 of the MRC Act. The Tribunal allowed two weeks for the further written submissions. These were received on 12 August 2016, seven weeks after the hearing was adjourned.
These written submissions outline the legislative scheme of the MRC Act, sections 85, 89, 91 and identified the issue as being the construction and interpretation of s 91 of the MRC Act by reference to s 8(10) of the SRC Act. The latter referred to the decision in Comcare v Simmons. A great deal of the submission was devoted to the interpretation of s 8(10) of the SRC Act and the decision in Comcare and Simmons with further comment on the decisions in Re Kennedy and Re Hillman.
Mr Lenczner differentiated the requirements for the calculation of normal weekly earnings, for the purposes of 8(10)(a) and those of 8(10)(b) given that the latter only applied if the employee had ceased employment with the Commonwealth or a licensee during the week when the quantum of incapacity compensation was an issue. This reduction in payment was to be determined by reference to the earnings that an employee would receive if they had continued to be employed and as a result state: Is either the date of injury or the date of ceasing of employment as set out in s 8(10)(b)(i) or (ii).
In applying this to WFLT it was contended that after the injury he was in the same employment as a Commando, ECN079. Thus, if the SRC Act applied to WFLT he would continue if not incapacitated to receive the SFDA. Once WFLT’s service ceased it was clear that s 8(10)(b) would apply prior to the cessation of service if the SRC Act was attracted. Section 8(10)(a) posed a similar requirement as did s 91(3) of the MRC Act, that being the amount per week of the earnings that the employee would receive if he or she were not incapacitated for work.
Based on the above argument Mr Lenczner submitted that, but for the incapacity for service, WFLT would have received SFDA from 22 January 2013 only if he continued to serve as a Commando ECN079 in his own regiment or other Special Forces units in which he would be entitled to receive this allowance, albeit perhaps at a different rate.
It was argued that on the advice of the delegate of the Chief of the Defence Force in respect to s 91(4) of the MRC Act, WFLT’s compensable pay related allowance would cease on 21 January 2013. This submission was qualified by proviso that it was open to the Tribunal to interpret the word normal as used in 91(4) in the phrase would normally have ceased. Mr Lenczner contended that the Tribunal must be persuaded that WFLT would not fall within the concept of normal for his claim to succeed.
Mr Lenczner also addressed the decision in Comcare V Simmons and in particular the judgement of Perry J (Paragraph 94), with reference to the hypothetical earnings in s 8(10)(b) which states:
[94] However, that approach lends no support to the proposition put by Comcare that the inquiry should stray beyond the employee’s hypothetical earnings to a consideration of the impact of his personal choices and circumstances after the injury on the terms of his pre-injury employment in calculating NWE, as opposed to calculating AE. [Actual Earnings]
It was further submitted that these submissions accorded with Comcare’s Jurisdictional Policy Advice number 2015/01 and the Note from the DVA on the decision in Simmons.
The submissions also addressed the Explanatory Memorandum to the MRC Act and the Second Reading Speech, neither of which are of determinative assistance.
It was contended that the requirement for courts to determine matters on assumptions of different scenarios was well established. Section 91(3) of the MRC Act required the decision-maker to disregard matters arising as a consequence of incapacity for service, except if the matter is somehow relevant to the decision required by s 91(3).
Mr Lenczner specifically rejected Mr Quinn’s criticism of WFLT’s medical management and reiterated his earlier submission that the decisions of the AAT in Re Kennedy and Re Hillman, although based on s 8(10)(b) of the SRC Act were decided on the particular facts in each matter.
TRIBUNAL’S DELIBERATION
WFLT’s application has been brought before this Tribunal under the MRC Act (2004) and in so doing it accords with the requirements of s 4AA of the SRC Act (1988) which states:
4AA Most injuries for members of the Defence Force no longer covered by this Act
(1)       For the purposes of this Act (other than this section), an employee is taken not to have suffered an injury, or an aggravation of an injury, if:
(a)the employee is a member (within the meaning of the MRCA); and
(b)the injury or aggravation is first suffered on or after the MRCA commencement date; and
(c)the injury or aggravation arises out of, or in the course of, the employee’s employment as a member; and
(d)the employment occurs either:
(i)     on or after the MRCA commencement date; or
(ii)     before, and on or after, the MRCA commencement date.
The Tribunal has been informed by both parties that there is no legal precedent on all fours with the facts of this matter. In fact there is very little precedent in general as most applications have been determined in accordance with the SRC Act and not the MRC Act. The dates of injury in the majority of cases preceded the MRC Act date of Royal Accent of 27 April 2004.
In the Second Reading Speech of the Honourable Donna Vale, Minister for Veterans’ Affairs on 4 December 2003, the Minister referred to the distinctive nature of military service and the Bill’s emphasis on rehabilitation aimed at providing injured members with the support they need to make full recovery and return to work where possible. The proposed Act was to provide incapacity payments for economic loss and ongoing treatment of a medical nature was to be and still is provided in accordance with the VE Act and the issue of Health Care Cards.
The Tribunal acknowledges the need for a distinctive approach to incapacity arising from military service and in particular war-like or actual war-service, given the nature and severity of the injuries that may be sustained, particularly in overseas deployments, in comparison with the compensable non-military injuries of Commonwealth employees in a domestic setting.
The Tribunal has been asked to make its decision primarily on the facts and will adopt this approach.
WFLT joined the Commandos on 8 January 2007. He had previously served with the 4RAR between 1990 and 2002. The period with 4RAR had included overseas deployment. From 2002 until late 2006 he was a member of the New South Wales Police Force. He re-joined the 4RAR on a short term contract in late 2006 and then volunteered for, completed the physical training requirements and was accepted into the Special Forces as a Commando in 2007.
On joining the Commandos he was offered and accepted a seniority rating dating from late 2000. This apparently recognised his earlier 4RAR service. Whether or not the negative consequences in terms of assessing his Commando progress and contribution to the force were explained is unknown.
WFLT was deployed to Timor-Leste in 2007 and then in late 2007 to Afghanistan. On 6 February 2008 he was injured when the helicopter in which he was travelling manoeuvred suddenly, presumably in order to avoid enemy fire, and WFLT sustained an injury when his head hit the fuselage of the helicopter. Investigation has confirmed a diagnosis of C6/7 disc lesion producing neck pain and intermittent paraesthesia of both hands, symptoms that occurred immediately after the trauma was experienced and continues in terms at least of neck and shoulder pain to this day.
In addition WFLT has a diagnosis of PTSD, this diagnosis having been made in 2009 and attributed to events that occurred in 1998, although on the clinical history given symptoms were aggravated by the Afghanistan experiences. A right supraspinatus muscle tear was repaired in 2009 and in the same year surgery for a right ankle injury was required and undertaken with acceptable results. One medical report suggests further ankle surgery has recently been performed. WFLT suffered from intermittent back pain which was not a major problem until 2011 when this pain became more persistent. On investigation he was found to have disc lesions at L4/5, L5/S1 and S1/S2 with S2 nerve root compression. The diagnoses of these medical conditions and physical and mental injuries is not in dispute. In 2012 the diagnosis of PTSD was confirmed and the additional diagnosis of a Major Depressive Disorder was made by the treating military psychiatrist. Therefore this condition falls for consideration under the MRC Act.

Following his repatriation to Australia WFLT underwent further investigation, treatment and rehabilitation, in particular intensive physiotherapy for a period of ten months. As he had been receiving the SFDA at the time he sustained the injury to his cervical spine he continued to do so until 22 January 2013. Throughout 2009, 2010 and 2011 WFLT’s attendance at the workplace was 60-65 per cent of the full time requirements. In the three years prior to January 2012 there were numerous changes to his medical employment classification based on what the Tribunal perceives as very limited medical examinations.
WFLT was employed in a development cell within SOCOMD and attracted very positive reports from the warrant officers to whom he was answerable. He undertook tertiary studies relevant to his role and established himself in what has been described as a niche role. As he was the only person contributing in terms of this role, there was no peer group to assess his performance against.
In 2011 WFLT requested a transfer to Victoria. In the MECRB Report of 12 October 2011 it was determined that WFLT would be posted to a non-deployable position at DMO in January 2012. This report states he was an extremely well regarded junior non‑commissioned officer who was heavily involved in several important SOCOMD projects. The posting to DMO was to be for a period of three years. There is supporting evidence from Mr Leigh Basset and Ms Bernadette Allan that DMO was expecting WFLT to fill such a position, they having been informally made aware of this in October/November 2011. They understood that he was to work on various projects identified as suitable given his past experience in the 2nd Commando Regiment Development Cell. Both considered that this position was identified as part of his rehabilitation from injury program.
Evidence relating to when WFLT was informed that his SFDA was no longer payable is conflicting. WFLT’s evidence has been that he did not receive a copy of the so-called posting advice and while he had been warned that it was possible that he could lose his SFDA he only discovered this had occurred when he received his first pay slip after relocating to Victoria. Warrant Officer A, the Special Forces career advisor gave evidence to the effect that this posting advice was provided to WFLT, but the only supporting evidence provided was that Toll Logistics, who had been engaged to relocate WFLT from Sydney to Melbourne, had received a copy of the posting. The actual posting advice is unsigned and undated except for an electronically generated date of 30 November 2011. It is supposed to be signed or at least show entered details of the drafter’s name and title and the releaser’s name and title. The releaser is also required to sign the advice. Similarly, the only document advising of WFLT’s posting order in terms of a letter contained in the T-documents is the advice of a Corporal in 2nd Commando Regiment advising the DVA of WFLT’s cessation of SFDA with effect from 16 January 2011. The latter date is clearly a typographical error as the actual advice is dated 14 December 2011. The Tribunal accepts WFLT’s evidence that he did not receive a copy of this posting advice.
In correspondence between the DVA and a person named [Meg] Frugtniet identified as DTSS SAM it was said that WFLT was posted out of the unit along with some other 120 persons and had not put in an application for retention. This particular communication is dated 17 March 2012. There is, however, evidence that WFLT did put in such a claim form on 19 December 2011.
The above are some examples of conflicting pieces of evidence provided to the Tribunal.
The Tribunal finds WFLT to be a witness of credit, highly intelligent and who in no way exaggerated any of his ongoing serious physical and mental disabilities. WFLT has in his evidence before the Tribunal maintained his desire to remain in the Special Forces as an active officer, albeit non-commissioned. WFLT was not motivated to advance himself rapidly through the ranks and preferred to stay in an active role as a corporal. He was not averse to undertaking training to reach the rank of sergeant and has done so but did not obtain that promotion as he could not meet the physical requirements in two of the subjects necessary to achieve such a promotion. It had been suggested that his role at DMO would be in an acting sergeant role, but that consideration is irrelevant given the course of events.
The Tribunal has had difficulty in assessing the evidence of Warrant Officer A, career advisor to the Special Forces between 20 January 2014 and 18 January 2016. His period of appointment in this role occurred after WFLT’s transfer from the Special Forces Development Cell to Signal 138 Squadron in Melbourne and coincided with the time when he was awaiting medical discharge from the Commandos. Warrant Officer A had stepped out of trade for these two years in order to obtain promotion to the level of Regimental Sergeant Major in the SASR. On his evidence he has taken 24 years or more to reach this level of seniority.
Warrant Officer A gave his evidence by telephone and unfortunately the connection with Canberra was poor as evidenced by the frequent transcript entries of (indistinct). Warrant Officer A wrote his report and gave his evidence using many acronyms, some peculiar to the Defence Force and some his own abbreviations. I did ask that he use layman’s terminology (Transcript - 16 November 2015, pg 19) or provide a glossary (Transcript -16 November 2015, pg 29) but my request was ignored.
Warrant Officer A advised that he and presumably his predecessor, given Warrant Officer A’s involvement in the decision-making process, had no access to WFLT’s medical records, only his MEC. As noted the latter had changed 12 times in approximately three years.
Given Warrant Officer A had no personal knowledge of or involvement with WFLT’s career management, nor of the impact of his injuries on his capacity to remain in his trade as a Commando, his literal interpretation and application of Directive number 47-13 (Exhibit R2) to WFLT is speculative to say the least. The Tribunal cannot accept that the decisions of the PAC should or would be made in ignorance of the member’s medical diagnoses, prognosis and management. This is particularly so given the evidence of Lieutenant Colonel Say and Colonel Galloway’s report, both of whom have a less rigid approach in terms of the time they believe an individual could take to advance to a higher rank and also in regard to the importance of the medical data in terms of consideration of promotional possibilities. This multifactorial approach is of particular importance with respect to an individual’s promotion, their entitlement to a continuation of SFDA or any other allowances, rather than having the major determinant to be a hypothetical use by date.
In Re Frew and Comcare, Deputy President Forgie in the Catchwords to the decision relating to s 8(10) states satisfaction of the “would have” criteria was a question of fact and not of speculation. The same consideration applies to WFLT. What he might have done in terms of promotion or advancement in the Commando’s is irrelevant as he was deprived of any choice or pursuit of his goals by the injury sustained on 6 February 2008 when in receipt of the SFDA.
The Tribunal has reached its decision solely on consideration of the application of the MRC Act as was the intention of Parliament. It would appear that there has only been one determination made by the Administrative Appeals Tribunal relating to the continuance of a special allowance to an incapacitated member of the Defence Forces. This was made without reference to the SRC Act. In Re Hubbard and Military Rehabilitation and Compensation Commission [2011] 123 ALD 350 the Tribunal affirmed the reviewable decision, having considered the application under sections 85, 91 and 92 of the MRC Act and determined that the applicant met all the requirements as stated but failed in that s 5 of the act had not been satisfied as the Defence Minister had not made a determination specifying the Naval Capability Allowance to be a pay related allowance for the purposes of the MRC Act (para 13 Re Hubbard)
Section 91 is the relevant section of the MRC Act enlivened by this application. Section 91 provides the formula for working out normal earnings and for a member of the permanent forces on a weekly basis this is the member’s normal ADF pay for the week plus the member’s normal pay related allowances for the week. Section 91(2) addresses the member’s normal ADF pay for a week and s 91(3) the member’s normal pay related allowances for a week.
Section 91(4) requires the Chief of the Defence Force to advise the MRCC in writing of the date on which each compensable pay related allowance would normally have ceased to be paid to the member if the member were not incapacitated for service. The parties have agreed no such advice has been provided by the Chief of the Defence Force or their delegate to the Commission.
In the reviewable decision of the VRB dated 11 March 2014, the VRB accepted the telephone evidence of Warrant Officer A to the effect that posting out from the Special Forces usually occurred 10 years after they had joined their regiment and that the SFDA was payable only while a soldier was physically posted to a Special Forces unit, therefore on that basis it was determined that WFLT was not entitled to SFDA as part of his normal weekly earnings from 21 January 2013. In its decision the VRB actually stated the Commission have advised the Board this date is 21 January 2013. No reference has been made to any document in particular but the Board states that there was:
Nothing in the material received before the board, during the adjournment or in evidence presented before the board in the hearing, indicates that this date is incorrect.
By virtue of Warrant Officer A’s role as a Special Forces career adviser, he is thereby appointed to the Soldier Career Employment Management Agency under the direction of Colonel Susan Coyle and his position is listed as a Delegate of the Chief of the Defence Force. There is however, no documentation to support this conclusion and again it is noted that Warrant Officer A was not involved in any way in the decision making processes relating to WFLT.
The Tribunal concludes that as there is no written evidence from the Chief of Defence or a delegate as to the date when the allowance would normally have ceased to be paid, the eligibility for the SFDA therefore continues.
Section 91(5)(a) defines a compensable pay related allowance for a member as being the pay related allowance that was being paid to the member immediately before the onset of the member’s incapacity for service. It is clear from the facts before the Tribunal that WFLT satisfies s 91(5)(a) in that he was being paid the SFDA at the time of his accident in Afghanistan on 6 February 2008. He continues to be physically incapacitated from his spinal injuries and by the additional diagnosis of PTSD at least aggravated by the 2008 event, although caused by earlier exposure to stressors in East Timor.
The Tribunal sets aside the decision under review and substitutes its decision that WFLT has continuing entitlement to estimation of his compensation based on his normal weekly earnings including the SFDA allowance. The continuation of the entitlement is indefinite but subject to reappraisal in the event that WFLT is sufficiently rehabilitated and his conditions improved to enable him to return to work in a full time capacity. The matter is remitted to the Commission to re-determine WFLT’s compensable payments.

I certify that the preceding 155 (one hundred and fifty-five) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member
[sgd]........................................................................
Administrative Assistant
Dated 22 December 2016

Dates of hearing 15-16 July, 16-17 November 2015
20-21 June 2016

Advocate for the Applicant Mr Michael Quinn

Solicitors for the Respondent Sparke Helmore

Counsel for the Respondent Mr Joe Lenczner
APPENDIX
A1Email submitted to Tribunal by Applicant on 8 April 2016
R1T-Documents
R2Documents filed on 13 November 2015 by the Respondent’s solicitors as listed in the index
R3Medical reports dated 21 March 2011 and 31 July 2012
R4Lieutenant Colonel Say's answers to questions posed, 6 in total, and the relevant attachment

[2016] AATA 1072

22 December 2016

Key Legal Topics

Areas of Law

Administrative Law

Employment Law

Legal Concepts

Appeal

Causation

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Division	VETERANS’ APPEALS DIVISION
File Number	2014/1745
Re	WFLT
APPLICANT
And	Military Rehabilitation and Compensation Commission
RESPONDENT

Tribunal	Miss E A Shanahan, Member
Date	22 December 2016
Place	Melbourne

Dates of hearing	15-16 July, 16-17 November 2015 20-21 June 2016
Advocate for the Applicant	Mr Michael Quinn
Solicitors for the Respondent	Sparke Helmore
Counsel for the Respondent	Mr Joe Lenczner