Wilson and Military Rehabilitation and Compensation Commission

[2008] AATA 21

Administrative Appeals Tribunal

DETERMINATION AND REASONS FOR DETERMINATION [2008] AATA 21

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1622

VETERANS' APPEALS  DIVISION		)
Re		DEAN STUART WILSON

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DETERMINATION

Tribunal Senior Member P McDermott RFD

Date9 January 2008

PlaceBrisbane

Decision The Tribunal makes the preliminary determination that Tables 3.2.1 and 3.2.2 of the Guide to the Assessment of Rates of Veterans’ Pensions are not applicable to the determination of the applicant’s claim for compensation for his accepted condition of aggravation of his left inguinal hernia.

..................[Sgd]............................

Senior Member

CATCHWORDS

PRELIMINARY DETERMINATION – Guide to Assessment of Rates of Veterans’ Pensions tables – application of tables 3.2.1 and 3.2.2 – no accepted condition of the lower knee – tables inapplicable

Military Rehabilitation and Compensation Act 2004 ss 23, 67, 68, 69

REASONS FOR DETERMINATION

9 January 2008        Senior Member P McDermott RFD   

INTRODUCTION

1.      Mr Dean Wilson enlisted in the Australian Army on 22 April 1998 and attained the rank of Sergeant. Mr Wilson was discharged from the Army on 29 April 2006. In 2005 he made a claim for a left hernia condition sustained during his service. The Commission has accepted liability for the aggravation of his left inguinal hernia. Mr Wilson has now made a claim for compensation for his accepted injury.  I have been asked to make a preliminary ruling on whether certain tables in the Guide to the Assessment of Rates of Veterans’ Pensions (GARP) are applicable in the determination of Mr Wilson’s claim for compensation of his accepted condition.

QUESTION TO BE DETERMINED

2.      The question that I have to determine is whether Tables 3.2.1 and 3.2.2 in the Guide to the Assessment of Rates of Veterans’ Pensions (GARP) are applicable in the determination of the claim of Mr Wilson’s claim for compensation of his accepted condition of aggravation of his left inguinal hernia.

PROCEDURAL ISSUES

3.      At the commencement of the hearing I made the observation that the question to be determined as a preliminary ruling would ordinarily be reduced to writing in a document to be signed by the counsel of the parties. This course of action was not followed in this instance. However, in making that comment I am making no criticism of the parties. Indeed, I acknowledge that counsel for the applicant had been briefed just prior to the hearing.  I thought that it would be appropriate to then frame the question for resolution rather than put the parties to greater expense by adjourning the proceeding. Counsel for the applicant has acknowledged that I ultimately tended to prefer the formulation of the more general question as posed by the applicant who made the submission that it was not open to me to assess the evidence that was before me in the form of medical and other reports.

4.      At the conclusion of the hearing it was accepted that I would make the preliminary ruling on the question to be determined by the parties. I accept that this course of action was proposed by the Commission in an honest endeavour to dispose of the application in the most economical manner.

5.      At the hearing the applicant made no preliminary objection to me determining the question on which a ruling was sought.  However, after the conclusion of the hearing the applicant has since contended that a decision adverse to the applicant on the preliminary point would not obviate the need to conduct a hearing on the merits of the application. After duly considering the submissions I have decided nevertheless to make the preliminary ruling.

RELEVANT LEGISLATION

6.      In this matter the Commonwealth has accepted liability for the hernia condition of Mr Wilson. This was done in a determination of the Commission which was made on 9 August 2005 which accepted liability for the “aggravation of left inguinal hernia”. The determination was made under s 23(4) of the Military Rehabilitation and Compensation Act 2004 (“the Act”).

7. The Commission acting under s 67 of the Act may determine a guide for the purpose of determining impairment and compensation. The guide is a disallowable instrument under s 67(4) of the Act. On 26 May 2005 the Commission issued the GARP to have effect from 1 July 2005. This instrument is published in the Federal Register of Legislative Instruments.

8. The liability of the Commonwealth to pay compensation for a service related injury or disease is provided for in s 68 of the Act. It is important to mention that s 69 of the Act has a requirement that an impairment rating must constitute at least 10 impairment points.

TABLES 3.2.1 AND 3.2.2

9.      Table 3.2.1 is a Table which is headed “Loss of Musculoskeletal Function: Lower Limb Joints”. Table 3.2.2 is a Table which is headed “Loss of Musculoskeletal Function: Lower Limbs (Based on Use of Both Lower Limbs Together)”.

10.     The steps required to calculate an impairment rating under Part 3.2 of the GARP are set out at page 50 of GARP.

11.     The relevant instruction states: “Follow the steps below to calculate the impairment rating due to accepted conditions of the lower limbs”. Step 1 requires: “Establish which joints in the lower limbs, if any, have some restriction of movement as a result of accepted conditions affecting the lower limbs”.

12.     The explanatory material to Step 1 also states: “Hence, it must be determined which, if any, of both right and left: hip, knee, ankle, and toes; potentially have loss of range of movement due to accepted conditions” (page 51).

CONSIDERATION

13.     I make the observation that there is no contention Mr Wilson has any accepted condition of the lower limbs. What is being advanced on behalf of Mr Wilson is that he has difficulty in squatting due to his accepted condition.

14.     Dr Purssey, in his report of 27 July 2006, has expressed the view: “Under Table 3.2.1 the inability to squat shows that there is loss of about one half normal range of movement of his left knee with an impairment rating of 20”. Dr Purssey has also expressed the view: “Under Table 3.2.2 he has pain when weight bearing and had obvious difficulty descending the steep slope. As such I consider he has an impairment rating of 5”.

15.     Dr Purssey does not state that the accepted condition of Mr Wilson has resulted in some condition of the left knee which results in some diminution or movement of the left knee. I consider that Tables 3.2.1 and 3.2.2 are only applicable where there is some accepted condition of the lower knee. This is not the case in this application.

16.     I also comment that there is no basis for a right to compensation under Table 3.2.2 in view of the fact that the report of Dr Purssey gives an assessment of 5 points under this Table.

17.     I also mention, for the sake of completeness, that Table 3.2.2 is the only relevant table if the use of lower limbs is restricted by “vascular conditions or neurological conditions”: see explanatory material to step 4 (p. 54). There is no suggestion that this is the case in this application.

18.     I make the observation that this preliminary ruling is based upon my notional acceptance of the evidence before me. Counsel for the applicant has quite rightly pointed out that on the hearing on the merits the evidence is not limited to what was before the decision maker. It is for that reason that I make the proviso to my preliminary ruling.

19.     I also make the observation that the parties have both agreed that the preliminary question for me to answer is limited to the application of Tables 3.2.1 and 3.2.2: see supplementary submissions of respondent, para 16(e) and supplementary submissions of applicant, para 12. It is for this reason I make no ruling about the possible application of Table 6.2.1.

PRELIMINARY RULING

20.     I make the preliminary ruling that Tables 3.2.1 and 3.2.2 in the Guide to the Assessment of Rates of Veterans’ Pensions (GARP) are not applicable in the determination of Mr Wilson’s claim for compensation for his accepted condition of aggravation of his left inguinal hernia. This preliminary ruling does not prejudice Mr Wilson from placing any further evidence (if any) before the Tribunal to advance any claims under those Tables.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the preliminary determination herein of Senior Member P McDermott RFD.

Signed:         ...................[Sgd].............................................................
           S O’Grady, Associate

Date of Interlocutory Hearing    5 September 2007
Date of Written Submissions    19 September 2007
Date of Determination               9 January 2007
For the applicant  Ms Scott-Mackenzie, of counsel
For the respondent                   Mr Clark, of counsel