McGuire v Military Rehabilitation and Compensation Commission

Legislative Framework 7 As the injury to the appellant occurred in 1951, the legislative history of the current Act is relevant. In 1951, the entitlement to compensation was governed by the Commonwealth Employee's Compensation Act 1930 (Cth)('the 1930 Act'). The 1930 Act was subsequently replaced by the Compensation (Commonwealth Employees) Act 1971 (Cth)('the 1971 Act') which, in turn, was replaced by the current Act, which came into force on 1 December 1988. 8 Section 24 of the Act currently provides for compensation for injuries resulting in permanent impairment. However, no compensation is payable under that section if the degree of the employee's permanent impairment is determined by the respondent to be less than 10 per cent (s 24(7)). There is an exception if the impairment is a loss of hearing, however this is not relevant to the present dispute. 9 In addition, s 124(3) of the Act provides that in circumstances where an impairment became permanent before 1 December 1988, a person is not entitled to lump sum compensation under s 24 in respect of that permanent impairment if the person were not entitled to receive lump sum compensation in respect of that impairment under either the 1930 Act or the 1971 Act. Significantly, neither of those predecessor Acts provided for lump sum compensation for permanent impairment of the neck or cervical spine. 10 The appellant also claimed compensation for non-economic loss. However, pursuant to s 27 of the Act, such compensation is only payable once it has been established that compensation is payable under s 24 in respect of the same injury or impairment. 11 Thus, as remarked upon by both the Tribunal and the primary Judge, if it can be said that the injury sustained in 1951 resulted in permanent impairment and that impairment became permanent prior to 1 December 1988, no entitlement to lump sum compensation arises. If the impairment became permanent after that date, or a new impairment resulting from that injury became permanent after that date, s 24 of the Act provides for a lump sum only if the degree of permanent impairment is 10 per cent or more.

decision of the Tribunal 12 The Tribunal observed that, although the respondent did not dispute that the appellant suffered an injury to his neck in compensable circumstances in November 1951, the difficulty in the case was whether that injury resulted in a permanent impairment of 10 per cent or more and, if so, whether the resulting impairment became permanent prior to 31 December 1988. 13 The Tribunal set out the evidence, referring first to the evidence of Dr Walkley, a specialist in rehabilitation medicine, including his reports dated 27 May 1993 and 22 July 1999, and his oral evidence. In his reports, Dr Walkley assessed the appellant's neck condition to be permanent, and the report of 22 July 1999 records that the impairment was at least 10 per cent impairment of the whole person under the Guide to the Assessment of the Degree of Permanent Impairment ('the Guide'). Dr Walkley also found that the appellant 'suffered from Dextrocardia (Situs Invertus), a rare developmental anomaly in which all the internal organs including the heart are transposed', and that the appellant had a particularly progressive form of degenerative osteoarthrosis. Referring to his oral evidence, the Tribunal recorded Dr Walkley's opinion that part of the appellant's current condition was attributable to the incident in the Army. 14 The Tribunal also referred to the evidence of Mr Brash, orthopaedic surgeon, and his reports of 2001 and 2002. Mr Brash assessed a 15 per cent whole person impairment, but was of the view that the appellant's condition was 'due to the progressive and naturally occurring degenerative changes in the cervical spine as well as in both shoulders'; he did not believe that the impairment was due to the incidents in the Army. 15 As to the evidence of Mr Watson, neurologist, the Tribunal noted his finding (in July 2001) of a 50 per cent reduction in cervical spine movement, and his view that the 'impairment did not relate solely to the injury in 1951 but related also to ongoing degeneration occurring between the congenital spinal fusions.' 16 The Tribunal then said: 'All medical opinions note that [the appellant] has suffered from neck pain, clicking sensations and discomfort at the craniocervical junction since the 1951 incident. While Mr Brash maintains that the 1951 injury no longer plays any part in [the appellant's] current cervical problems, both Dr Walkley and Mr Watson attribute some part of this current condition to that injury. … On the evidence of [the appellant] and the medical evidence, I am satisfied that the impairment caused by the 1951 injury was less than 10 per cent under the Guide and became permanent well prior to December 1988. The further impairment has been the result of degeneration of the cervical spine resulting from congenital fusions exacerbated by degenerative osteoarthrosis of the thoracic spine and rotator cuff tear. It is relevant to note that Mr Brash assessed a higher percentage of impairment some two and a half years after Dr Walkley and some six months after Mr Watson indicating that the impairment is increasing with time.' 17 Accordingly, the Tribunal found that the appellant was not entitled to lump sum compensation for permanent impairment of the cervical spine.

decision of the primary judge 18 The learned primary Judge paraphrased the respondent's case before the Tribunal, saying: 'whatever impairment was suffered by the applicant as a result of his injury in 1951 that impairment had stabilised long before 1 December 1988 and any impairment since 1 December 1988 was unrelated to the original injury.' 19 His Honour then said: 'There is nothing on the face of the finding of fact to establish any error of law. The conclusions of fact in relation to the degree of impairment attributable to the 'work related injury' and the date of the permanent impairment, were fatal to the applicant's claim. This is not a case where it was argued or can be argued that there was no evidence upon which the Tribunal could have reached its conclusions of fact. It is not open to the applicant to allege that an error of fact establishes an error of law when there is evidence to support the finding of fact cf Waterford v Commonwealth (1987) 163 CLR 54 at 77-78 per Brennan J. 20 Nevertheless, the primary Judge addressed the appellant's contentions before the Court, including that the appellant's loss of hearing could have contributed to his injury, by causing him to fail to apprehend the skylarking approaches to him by other soldiers which resulted in his injury; that a statement issued by the Military Compensation and Rehabilitation Section of the Department of Defence in 1988 confused the appellant's injury to his cervical spine and his back; and the contention that the appellant's case had been prejudiced by the absence of details on the appellant's Australian Military Forces Medical Certificate. His Honour also referred to the appellant's contention that the evidence of Dr Watson supported a degree of permanent impairment in excess of 10 per cent. 21 His Honour found there was evidence to support the Tribunal's finding and concluded that none of the matters raised by the appellant gave rise to an arguable claim. Accordingly, the primary Judge found that 'the Tribunal was correct in its approach to the law and was not in error of law in relation to its conclusion of fact' and dismissed the application.

Current appeal 22 The appellant's notice of appeal discloses no identifiable legal issues; neither do his submissions assist in elucidating the matter further. 23 In written submissions, counsel for the respondent has nevertheless helpfully addressed three findings relevant to a consideration of whether the primary Judge erred in these proceedings: first, that the permanent impairment caused by the 1951 injury was less than 10 per cent whole person impairment under the applicable Guide; secondly, that any impairment caused by the 1951 injury became permanent well prior to December 1988, when the Act commenced; and finally, that the further impairment after the Act commenced has been the result of degeneration of the cervical spine rather than any work-related injury. 24 The respondent submits, correctly in our view, that the findings upon which the Tribunal based its decision are all findings of fact, which do not raise any questions of law as required by s 44 of the AAT Act, as it was open to the Tribunal to be satisfied of all the above matters. 25 As stated above, the difficulty for the appellant is that the 1930 Act made no provision for lump sum compensation for permanent impairment to either the neck or spine. The appellant must therefore prove that either his condition became permanent after 1 December 1988, or a new impairment resulting from the 1951 injury became permanent after that date. Only then does the question of the degree of impairment arise. 26 The appellant was unsuccessful in establishing the above circumstances on the evidence. 27 The comments of the primary Judge (set out above at [19]) in this regard are apt. In our view, there was sufficient evidence to support the Tribunal's finding that the impairment caused by the 1951 injury became permanent well prior to 1988. 28 The Tribunal accepted the appellant's evidence that he continued to have neck pain from 1951 onwards. Dr Walkley gave evidence of the appellant's complaint that his neck had never been completely asymptomatic since his military service. Dr Walkley also gave evidence to the effect that the congenital fusions contributed to the increasing loss of movement by increasing wear and tear on other cervical joints. 29 The respondent's case was that such a process was entrenched well before 1988. Mr Watson recorded the appellant's complaint that since 1951 he 'has had neck pains, clicking sensations and quite prominent discomfort at the craniocervical junction'. In his report of 1 May 2001, Mr Brash declined to put an exact date as to when the patient's neck condition became permanent, as it was his opinion that the appellant's disability was naturally occurring, progressive and degenerative, and was unrelated to the injury sustained in 1951. The respondent again submitted that such processes were entrenched by 1988. 30 As the Tribunal pointed out, all the medical opinions noted that the appellant had suffered from neck pain, clicking sensations and discomfort at the craniocervical junction since the 1951 incident. Such evidence is sufficient, in our view, to sustain a finding that the appellant's impairment became permanent prior to 1988, as the primary Judge held. 31 Turning to consider whether a new, that is a post-1988, impairment arose as a result of the injury in 1951, Dr Walkley's evidence in 1999, which the Tribunal accepted, was that the appellant had experienced increasing problems with his neck during recent years and that there was a level of permanent impairment of at least 10 per cent. Dr Walkley, with whom Mr Watson concurred, was also of the view that the appellant's deterioration post 1988 was attributable in part to the 1951 injury and in part to the degenerative changes caused by congenital abnormalities. 32 However, the Tribunal ultimately accepted Mr Brash's opinion in his report of 20 March 2001, that the effects of the work-related injury 'did not play any part in accelerating the naturally occurring and progressive degenerative changes.' The Tribunal clearly adopted Mr Brash's opinion that any further impairment post December 1988 'has been the result of degeneration of the cervical spine resulting from congenital fusions exacerbated by degenerative osteoarthrosis of the thoracic spine and rotator cuff tear.' 33 Thus, the medical evidence available provided opposing views as to the cause of the appellant's further impairment, but it cannot be said that there was no evidence to support a finding that the appellant's further impairment since December 1988 was unrelated to his injury in 1951. Having regard to the limited nature of an 'appeal' to this Court, which is confined to questions of law, that is the question that the Court must decide. There is no error in failing to discuss why contrary evidence was not accepted: see Comcare v Forbutt [2000] FCA 837; Military Rehabilitation & Compensation Commission v SRGGGG [2005] FCA 342 ('SRGGGG'). All that is generally required is that the reasons enable a party to understandthe result and allow a disappointed party to consider whether to take advantage of any right to appeal or of judicial review: see SRGGGG at [82] and the cases there cited. 34 The appellant's condition has undeniably deteriorated since 1988. However, the Tribunal found that that has not been the development of a new impairment, nor could it be said that such deterioration meant that the appellant's condition had not been permanent prior to 1988. The primary Judge found no legal error in this approach and ultimate conclusion. Regrettably for the appellant, neither can we. 35 Although it is unnecessary for the disposition of the case, given that conclusion, for completeness' sake we record our views on the question of legal error in the finding that the degree of permanent impairment caused by the injury in 1951 was less than 10 per cent. 36 The respondent points to the evidence of Dr Walkley in his report of 27 May 1993, where it is recorded: 'The majority of active cervical movements were restricted and painful to a variable degree. Whilst [the appellant] possessed 75 degrees of rotatory movement to the left, rotation to the right was limited to 50 degrees; both movements provoking considerable discomfort. Extension and right lateral flexion was slightly restricted and provoked appreciable discomfort.' 37 The respondent submits that, on Dr Walkley's analysis, it seems clear that as at December 1988 the appellant was suffering, at most, 5 per cent whole person impairment in relation to the combined effects of his work-related injury, degenerative changes and congenital factors. 38 Under Table 9.6 of the Guide, which is the table relevant for assessing degrees of spinal impairment, the descriptions for the percentage levels of impairment are as follows: 'minor restrictions of movement' are classified as 5 per cent permanent impairment, 'loss of half normal range of movement' equates to 10 per cent permanent impairment, and 'loss of more than half normal range of movement' equates to 15 per cent permanent impairment. 39 Curiously however, Mr Watson drew the opposite conclusion in his report of 26 July 2001 when referring to Dr Walkley's 1993 report stating: 'I understand a consultation or an assessment was carried out by Dr. Cecil Walkley in 1993 which gave [the appellant] a ten percent disability of the cervical spine'. 40 Dr Walkley's evidence was that in 1999, the appellant's range of mobility was roughly half the usual rate (or a degree of impairment of 10 per cent), and that this was less than the appellant's rotatory movement in 1993. Thus, it is inescapable that, on Dr Walkley's evidence, in 1993 the appellant's degree of impairment was less than 10 per cent. Given that there is no evidence to suggest that the appellant's condition had improved at any stage, if the appellant's degree of impairment was less than 10 per cent in 1993, the same must be said of the appellant's condition in 1988. 41 The Tribunal also accepted the appellant's evidence of his own abilities prior to 1988 and the consistent reports of neck pain, clicking sensations and discomfort at the craniocervical junction since the 1951 incident. The appellant complained of soreness and stiffness, which restricted his ability to turn his head quickly or to look up at the sky. These claims are indicative of a degree of impairment. However, it is not possible, without more, to suggest that such evidence could sustain a finding that the degree of impairment was sufficient to be classified as 'loss of half normal range of movement'. 42 Finally, it will be recalled that Mr Brash did not provide a percentage disability because he did not believe the permanent disabilities were related to the appellant's Army service, and whilst both Dr Walkley and Mr Watson were of the view that the appellant's impairment was now at least 10 per cent, both practitioners stated that the deterioration was attributable only in part to the 1951 injury. That is, before the Tribunal there was no medical opinion to the effect that since 1988, the 1951 injury caused a degree of permanent impairment of at least 10 per cent. 43 In these circumstances, the primary Judge held that there was no evidence to support the finding of fact made by the Tribunal in relation to the degree of impairment and there was no legal error in his Honour so holding.

44 Accordingly, as we can discern no legal error in the approach taken or in the ultimate conclusion made by the primary Judge, the appeal should be dismissed, with costs. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate: Dated: 11 April 2005 Solicitor for the Appellant: No appearance

Solicitor for the Respondent: Australian Government Solicitor