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Doherty and Military Rehabilitation and Compensation Commission

[2011] AATA 234

TRIBUNAL Administrative Appeals Tribunal, Brisbane
MEMBERS M D Allen (Senior Member)
DECISION The decision under review was affirmed
ISSUES Applicant’s degree of whole person impairment and impairment points not in issue. The dispute concerns the actual amount of compensation payable to the Applicant

Facts

Mr Doherty sought  review of a decision of the Military Rehabilitation & Compensation Commission dated 12 March 2009. This decision considered the degree of permanent impairment for the compensable conditions of:  

It was determined that the Applicant suffered a permanent impairment as a result of these conditions and the degree of impairment was 26 points with a lifestyle rating of 2.                                                            

Issues before the Tribunal

The issue to be determined by the Tribunal was:

The Tribunal’s Consideration

Interpretation of S68 of the Military Rehabilitation and Compensation Act 2004 and S13 of the Military rehabilitation and Compensation ( Consequential and Transitional Provisions) Act 2004

The Tribunal noted that as pointed out in James v Military Rehabilitation and Compensation Commission (2010) 186 FCR 134, the MRC Act and the CTP Act should be read as one.
The Tribunal further noted S67 of the MRC Act allows the Military Rehabilitation and Compensation Commission (MRCC) to determine a guide for assessing impairment.
Chapter 25 of the Guide (namely the Guide to Determining Impairment and Compensation; being Statutory Instrument M9 of 2005) provides: This Chapter deals with situations where an injury or disease (the condition) has been accepted under the VEA or the SRCA before a claim is made under the MRCA. The claim under the MRCA may be for a new condition unrelated to the first or for an aggravation of the pre-existing condition. The method to deal with amounts of compensation already paid for the condition and the amount due under the MRCA now or later is described below.

Chapter 25 of the Guide then adds:

A claim made under section 319 of the MRCA may result in liability for an injury or disease being accepted and compensation payable. Where a person entitled to a payment under MRCA in respect of permanent impairment was or is paid a lump sum for permanent impairment under the SRCA or liability for a condition accepted under the SRCA the combined impairment must be determined under the MRCA using this Guide. An accepted liability under the SRCA is referred to as the old injury or disease.

...

The impairment resulting from any old injury or disease must be determined using this Guide as at the date of MRCA determination. The points so derived for the old injury or disease must then be combined using the combined impairment table to determine the overall impairment assessment for the purpose of the MRCA.

...

The SRCA lump sum converted to a period payment, is subtracted from the MRCA periodic payment to get the net MRCA periodic payment”
The Tribunal noted what the Full Federal Court said in James, and thatthere was no doubt that the introduction of the provisions of Chapter 25 of the Guide was not beyond the real exercise of power conferred by the CTP Act.
The Tribunal considered the respondent had applied chapter 25 of the Guide to impairment as it was required to do pursuant to S13 CTP Act.

Formal decision

The Tribunal affirmed the decisions under review.

Text Box:  Editorial note

This matter was heard on the papers, the Tribunal stated at the outset that it would have been materially assisted by oral argument from both parties.

Text Box:

Further reading:

The decision of James and MRCC[2010] FCAFC 95 is discussed in detail in Discourse  Winter 2010 Issue 2.

For further reading on permanent impairment compensation, incapacity payments and liability claims please see VeRBosity Special Issue 2006 (Handbook for Representatives), Chapters 14-15.  For incapacity payments please also see Verbosity Vol 24 No. 2 pages 78-85

All Practice Notes