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Tribunal ruling highlights unintended consequence

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Media Release

Published on

A win in the Administrative Appeals Tribunal for a former Royal Australian Navy helicopter pilot has highlighted an unintended consequence of the new military compensation scheme, according to Slater and Gordon lawyers.

Slater and Gordon lawyer Ben Mason said the recent test case of Michael Porter has broken through some of the barriers for Australian Defence Force members whose injuries have been aggravated by their defence service, after June 2004.

In a recent judgement, the tribunal ruled that Mr Porter, who was employed as a flight navigation instructor with the Royal Australian Navy, should be compensated for a back injury which was aggravated whilst using the “instructor’s jump seat” in the King Air 350 aircraft.

The tribunal heard how Mr Porter’s flight duties required him to sit in confined spaces for prolonged periods and in a flexed position, leaning forward and slightly twisted to one side.

Mr Mason said his client “often had to stretch after flying to be able to stand upright”.

Mr Mason said the Military Rehabilitation and Compensation Commission had denied any liability on the basis of “convoluted and harsh” rules contained in a statement of principles adopted by the new scheme.

“We successfully argued that that the statement of principles regime does not apply in all cases of aggravation after June 2004,” Mr Mason said.

“This is huge in terms of the new military compensation scheme because we have seen this regime effectively block access to benefits for hundreds of members who otherwise would have been entitled to compensation”.

In its reasons for decision, the tribunal acknowledged a concession by the Commission that this was “an interesting and extraordinary case” because Mr Porter would succeed if this were a claim under the old military compensation scheme based on the Safety, Rehabilitation and Compensation Act 1988.

Mr Mason said it was a two and a half year battle for Mr Porter, who has since left the Navy, and still suffers permanent back pain as a result of his service.

“Apart from obvious anomalies with this new scheme, the time taken to determine claims is the biggest problem faced by service personnel and their families, especially when around one in 5 end up being wrong” Mr Mason said.

In July 2004, the Howard Government introduced a new scheme which it described as the “best of both worlds” where benefits “at least match and in many cases enhance those provided under the existing two pieces of legislation”.  By 2009, it was clear to all that a review of the new scheme was required, including a review of the anomalies and unintended differences between the new and old schemes.

In a detailed submission to the Review of Military Compensation Arrangements, Slater and Gordon argued that in many cases, benefits and rights have been substantially eroded or abolished.

Slater and Gordon’s submission to the review can be viewed on the Department of Veteran Affairs’ website.