FEDERAL COURT OF AUSTRALIA McGuire v Comcare [2004] FCA 848 COMPENSATION – claim for permanent impairment – cervical spine – tribunal not in error of law in concluding no claim for lump sum compensation available – tribunal not in error of law in conclusion of fact that permanent impairment arose well prior to 1 December 1988 Administrative Appeals Tribunal Act 1975 (Cth) s 44 Commonwealth Employees' Compensation Act 1930 (Cth) ss 12, 19(1), Compensation (Commonwealth Government Employees) Act 1971 (Cth) s 39 Judiciary Act 1903 (Cth) s 78(1) Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 24, 64, 124(3) Australian Competition & Consumer Commission v CG Berbatis Holdings Pty Ltd (1999) 95 FCR 292 applied Department of Defence v West (1998) 85 FCR 491 followed McGuire v Comcare [2002] AATA 268 affirmed Naraim v Parnell (1986) 9 FCR 479 referred to Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 cited Waterford v Commonwealth (1987) 163 CLR 54 referred to ALEXANDER KYLE McGUIRE v COMCARE (DEPARTMENT OF DEFENCE) W141 of 2002 RD NICHOLSON J 2 JULY 2004 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W141 OF 2002 BETWEEN: ALEXANDER KYLE McGUIRE APPLICANT AND: COMCARE (DEPARTMENT OF DEFENCE) RESPONDENT JUDGE: RD NICHOLSON J DATE OF ORDER: 2 JULY 2004 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The application by way of appeal be dismissed. 2. The applicant pay the respondent's costs of the application Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W141 OF 2002 BETWEEN: ALEXANDER KYLE McGUIRE APPLICANT AND: COMCARE (DEPARTMENT OF DEFENCE) RESPONDENT JUDGE: RD NICHOLSON J DATE: 2 JULY 2004 PLACE: PERTH REASONS FOR JUDGMENT 1 This is an 'appeal' from a decision of a senior member of the Administrative Appeals Tribunal (Mr BH Pascoe) ('the Tribunal') given on 18 April 2002 (McGuire v Comcare [2002] AATA 268). In that decision the Tribunal affirmed the decision under review. The decision was that of the respondent dated 15 May 2001 which affirmed a determination made on 31 March 2000 that the applicant was not entitled to a lump sum payment for permanent impairment to his neck and cervical spine. The 'appeal' is brought pursuant to the provisions of s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) and s 64 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). 2 The injury in relation to which the applicant's claim for permanent impairment was brought occurred in 1951. The Tribunal described the circumstances in which it occurred as follows (and this description is not in issue as to its content): 'Mr McGuire enlisted in the Australian Army in London on 31 July 1951 and was discharged in West Australia on 30 July 1957. He said that, in September 1951, he was involved in swimming training. Three soldiers had remained behind in the hut. On return from swimming, Mr McGuire said that he realised someone had opened and searched his personal belongings. He did not report this but suspected two of the three soldiers who had been in the hut. Later, when returning to the hut from guard duty unexpectedly, he found the suspects pilfering from other soldiers' belongings. Again, he did not report his findings but suggested to other soldiers that they check for any missing items. Mr McGuire said that a money belt with some cash and badges of some sentimental value disappeared. A small hammer of his was subsequently seen in the possession of one of his suspects and Mr McGuire said that, on asking for its return, he was attacked and thrown to the ground, hurting his shoulder. He said he put up with the problem for some five to six weeks but, on 1 November 1951, when about to go swimming, he was attacked from behind with an arm around his neck, thrown into the air and landed on his head. He said he had some paralysis in his arms and legs and could not stand without assistance. He was taken to the Regimental Aid Post where he was placed on a stretcher with a heat lamp on his neck. An ambulance then conveyed him to Moorbar Hospital where he stayed overnight under observation for a suspected fracture of the neck. The next day he was taken to Concorde Repatriation General Hospital (Concorde). Mr McGuire said that he was placed on a slanted bed with traction to his head and neck. He thought that he remained in traction for 14 days. He remained in Concorde until discharged on 4 January 1952. The admission sheet at Concorde showed an entry on 2 November 1951: "… Admitted for ? Fract. ? Congenital malformation of cervical spine". An X-ray report on 6 November 1951 stated: I have carefully examined the films. CV2 and 3 are fused to form a block vertebrae. I cannot convince myself on the films available that there is any abnormality elsewhere. …' 3 In December 1991 the applicant lodged a claim for compensation in respect of 'spine injury and hearing loss', claiming that the injury occurred in 1951 and that he had first received medical treatment in respect of it on 1 November 1951. On 4 August 1993 the respondent admitted liability for: ' … persistently stiff and painful neck consequent upon the presence of both advanced degenerative changes and two separate development anomalies in the form of "block (partially fused) vertebrae" affecting the C2/3 and C6/7 verbratal [sic] levels sustained by you on 2 November 1951.' This description of the condition was taken from a report prepared by Dr Walkley on 27 May 1993 after examination of Mr McGuire on 26 May 1993. Dr Walkley stated that: '… (a) The impaired mobility of the cervical spine resulting form the developmental fusion of the C203 and C6-7 vertebrae would have resulted in the acceleration of the normal rate of degenerative change in his cervical spine even had he not been subject to any specific cervical trauma. …' On 11 August 1993 it was determined that the Department was not liable to pay compensation in respect of the applicant's claim for hearing loss. 4 On 9 July 1999 the applicant lodged a claim for permanent impairment which he described as 'neck stiffness. vertebrae and r shoulder painful – spasmodic click 2/4 area'. It is denial of this latter claim which is the subject of this 'appeal' and which was the subject of the application before the Tribunal. 5 On 31 March 2000 a delegate of the Commonwealth Department of Veterans' Affairs advised the applicant that the reason for the refusal of his application for permanent impairment was as follows: 'In your case, I note that the date of injury is 2 November 1951. As your neck condition became permanent before 1 December 1988, when the new Act came into effect, your condition falls under the 1930 Act. Under the 1930 Act, no provisions were made for the purposes of Lump Sum permanent impairment awards in relation to the neck. Therefore I have determined that no payment can be made under Sections 24 and 27 of the Act in respect of your accepted condition of 'Persistently Painful Neck Consequent Upon The Presence Of Both advanced degenerative changes and two separate developmental anomalies in the form of "Block (Partially fused) vertebra" affecting the C2/3 and C6/7 vertbral levels' condition.' 6 The decision of the delegate was confirmed on review and communicated on 16 August 2000. At that time the applicant was given the opportunity to provide further medical evidence. On 15 May 2001 a reconsideration of the determination of 31 March 2000 resulted in its affirmation. Meanwhile, the applicant had applied on 28 August 2000 for review by the Tribunal, although a reviewable decision had not then been made. The reasoning of the reconsideration was again that because the applicant would not have been entitled to receive lump sum compensation in respect of his neck condition under the 1930 Act, he would not be entitled to lump sum compensation for permanent impairment under the 1988 Act. 7 When the matter came before the Tribunal its reasons were essentially those which had been conveyed to the applicant in the prior advice to him. On the relevant issue the Tribunal said: '11. As the injury to Mr McGuire occurred in 1951, the entitlement to compensation is initially governed by the Commonwealth Employees' Compensation Act 1930 ("the 1930 Act"). This 1930 Act was replaced subsequently by the Compensation (Commonwealth Employees) Act 1971 ("the 1971 Act") which, in turn, was replaced by the Act which commenced on 1 December 1988. Section 24 of that Act provides for lump sum compensation where an injury results in permanent impairment. However s. 124(3) provides that a person is not entitled to compensation under s.24 if the person was not entitled to receive compensation of a lump sum in respect of that impairment under either the 1930 Act or the 1971 Act as in force when the impairment occurred. Neither the 1930 Act nor the 1971 Act provided for lump sum compensation for permanent impairment of the neck or cervical spine. Consequently, if it can be said that the injury in 1951 resulted in permanent impairment and that impairment became permanent prior to 1 December 1988, no entitlement to a lump sum arises. If the impairment became permanent after that date or new impairment resulting from that injury became permanent after that date, s.24 of the Act can provide for a lump sum subject to the degree of permanent impairment being 10 per cent or more.' On the essential question of fact thus raised the Tribunal said: '13. Based on the evidence, it is accepted that Mr McGuire suffered an injury to his cervical spine in November 1951 which may have been aggravated in 1952 and which occurred in compensable circumstances. This has been accepted by the respondent. However, the question here is whether or not that injury resulted in permanent impairment of 10 per cent or more and that impairment became permanent after 1 December 1988. On the evidence of Mr McGuire 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.' The medical evidence referred to in this and other passages of the Tribunal's reasoning was described and set out in its reasons. 8 The applicant appeared unrepresented. Consequently, his notice of appeal was formulated without the benefit of legal advice. In the course of his oral submissions he put a number of matters. 9 On the issue of law decided by the Tribunal it is the case that pursuant to the transitional provisions of the Safety, Rehabilitation and Compensation Act (and particularly s 124(3)) a person is not entitled to compensation under s 24 in respect of a permanent impairment that occurred before 1 December 1988, if the person was not entitled to receive compensation of a lump sum under either the Commonwealth Employees' Compensation Act 1930 (Cth) ('the 1930 Act') or the Compensation (Commonwealth Government Employees) Act 1971 (Cth) ('the 1971 Act'). Compensation was not payable for back or neck injuries under either the 1930 Act or the 1971 Act: see s 12 and Sch 3 of the 1930 Act; s 39 of the 1971 Act; Department of Defence v West (1998) 85 FCR 491 at 496, 502. 10 In relation to the question of fact decided by the Tribunal, it is accepted on behalf of the respondent that where a work related injury occurs prior to 1 December 1988 and that injury results in a permanent impairment after 1 December 1988, compensation for the impairment may nevertheless be recoverable (so long as the other requirements of s 24 of the Act are met): see generally West. Similarly, a change in impairment since 1 December 1988 may be such that, quantitatively and qualitatively, it is properly to be characterised as a new impairment: West per Merkel J (O'Connor J agreeing) at 512. 11 The respondent's case before the Tribunal was that 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. It was in the context of that submission that the Tribunal made its critical finding of fact quoted above. 12 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. 13 The applicant made a number of factual assertions from the bar table. He said that his back still 'clicks'. He stated that a malfunction was different to fusion. He claimed that the Defence Department should have had him insured. None of those matters ground any error of law. 14 The applicant also contended that his loss of hearing could have contributed to his injury by causing him not to apprehend the approaches to him which resulted in his injury. However, no factual basis was put forward to support that claim. It was not an element of the applicant's claim until the hearing of this 'appeal'. It is unsupported by any proper evidentiary foundation. 15 The applicant sought to tender a large number of documents. Of those, two were admitted as exhibits. One was a 1988 statement issued by the Military Compensation & Rehabilitation Section, Department of Defence as a statement requested by the Tribunal. It said: 'I have worked in the compensation areas since 1980 and during that time have processed in excess of a thousand compensation claims governed by the Commonwealth Employees' Compensation Act 1930. In my experience, if Mr McGuire had lodged a claim for compensation as soon as possible after the injury, or when the condition first becoming [sic] apparent, the Delegate would have been able to interview witnesses to the incident or contact members who served with Mr McGuire and ask for comments regarding his allegations. On receipt of the witnesses' statements or comments, the Delegate would have arranged for Mr McGuire to be examined by suitably qualified medical specialist who would have been asked to report on Mr McGuire's condition in general, assess his hearing loss and provide an opinion of the likely causation of Mr McGuire's condition. The Department has made a concerted effort to assist Mr McGuire in establishing his claim. However, as the claim was lodged approximately forty years after the alleged incident, the Delegate had to rely on the contemporaneous evidence which indicates, on discharge, Mr McGuire stated that the only injury suffered by him during service was his back.' 16 It is said that this confused injury to his cervical spine and his back. However, as there was no provision for a lump sum compensation payment in either the 1930 Act or the 1971 Act, the description of his injury cannot affect his legal entitlement to such compensation or establish error of law on the part of the Tribunal. Nor can it assist in overcoming the finding of fact properly open to the Tribunal that the permanent impairment became permanent well prior to December 1988. 17 The applicant also said the statement referred to a possible examination by one specialist when the 1930 Act required two examiners. The requirement of the 1930 Act in s 19(1) is that the examination be 'by a medical referee or a medical board consisting of two or more medical referees…'. The requirement in the Act does not support the submission. 18 The other document was the applicant's AMF Medical Certificate. It showed he had been examined in 1952, 1953, 1954 and 1955 and assessed as fit (although there is a notation at the top of the fit or unfit column reading '?back' or '?neck'). He claimed to be prejudiced by the absence of details in this record. This was not a matter raised with the Tribunal. 19 Nor does it assist the applicant to argue, as he did, that the evidence of Dr Watson supported a degree of permanent impairment in excess of 10 per cent. There was evidence to support the finding which the Tribunal made. 20 None of the matters raised by the applicant gives rise to an arguable claim. In his amended notice of appeal the applicant sought to raise a point of law that s 51(XXXI) of the Constitution requires just terms to be delivered in respect of the 1930 Act. This was not a contention which he pressed in argument of the 'appeal'. Furthermore, having regard to the nature of the decision in issue and the subject matter of s 51(XXXI) of the Constitution, it is clear that the cause does not 'really and substantially' raise any constitutional issue whatsoever: Australian Competition & Consumer Commission v CG Berbatis Holdings Pty Ltd (1999) 95 FCR 292 at 297 citing Naraim v Parnell (1986) 9 FCR 479 at 486 – 489. Accordingly, no obligation arose to give a notice pursuant to s 78(1) of the Judiciary Act 1903 (Cth). 21 For these reasons I consider 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. The application by way of appeal should therefore be dismissed. 22 The respondent seeks costs on the basis of the general rule that costs follow the event in the absence of special circumstances: Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at 234 – 235. There are no such special circumstances here so that the respondent is entitled to costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson. Associate: Dated: 2 July 2004 The Applicant represented himself Counsel for the Respondent: Mr PD Quinlan Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 30 March 2004 Date of Last Written Submission: 2 June 2004 Date of Judgment: 2 July 2004