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No.15 December 2010

Porter and Military Rehabilitation and Compensation Commission

[2010] AATA 968

TRIBUNAL Administrative Appeals Tribunal, Melbourne
MEMBERS Mr F D O'Loughlin (Senior Member)
Miss E A Shanahan (Member)
DECISION The Tribunal set aside the decision under review and remitted the matter to the respondent to determine the compensation payable to the applicant and to consider payment of the applicant's disbursements
ISSUES Aggravation of signs or symptoms of a disease or injury - aggravation of underlying disease or injury

Facts

Mr Porter served in the Royal Australian Navy from August 2004 to September 2007 as a flight navigation instructor in King Air 350 aircraft.

Prior to his RAN service, Mr Porter was a member of the Royal New Zealand Navy from 1992 to 2004. Between 2002-2004 he was seconded to the ADF as an instructor, flying in aircraft similar to the KA 350.

Mr Porter has lumbar spondylosis and claimed that his duties in the RAN in the period leading up to November 2006 through to 2007 when he discharged either aggravated the signs or symptoms of his lumbar spondylosis, or materially contributed to those signs or symptoms.

Issues before the Tribunal

The issues to be determined were whether the applicant's duties from 2006 to 2007, in particular the jump seat position he was required to occupy in the KA 350 aircraft materially contributed to or aggravated:

The Tribunal’s Consideration

The Tribunal noted an aggravation of signs or symptoms of an injury of disease can be taken to have occurred where the pain or restrictions associated with the condition increase or intensify.

The Tribunal identified the relevant tests to be applied as follows:

The Tribunal went on to consider the applicant’s service history and duties, and the medical evidence. The weight of the evidence before the Tribunal lead it to be reasonably satisfied that the deterioration in the applicant’s signs or symptoms of his condition was not a manifestation of the deterioration of the underlying condition. The Tribunal indicated:

It is not extraordinary that signs and symptoms of a disease can worsen without the underlying condition altering. A condition can stabilise in its state of degeneration and signs or symptoms of a stabilised underlying condition may change for the better or worse.

Therefore, the applicant was entitled to compensation under section 23(3) of the MRCA.

Formal decision

The Tribunal set aside the decision under review and remitted the matter to the respondent to determine the compensation payable to the applicant and to consider payment of the applicant’s disbursements.

Editorial note

The Tribunal made the important distinction as to when SoPs apply or do not apply in cases involving the question of aggravation/material contribution. Ultimately the weight of the medical evidence in this case lead to the Tribunal’s conclusion that it was only the signs or symptoms of the applicant’s lumbar spondylosis which were aggravated by his service in the RAN.

All Practice Notes