Husband v Repatriation Commission

Federal Court of Australia|2000-03-24|Before: French J

Introduction 1 Neil Francis Husband, a former member of the Special Air Services Regiment, who left the Army in 1995, suffers from a variety of conditions accepted, for the purposes of the Veterans' Entitlements Act 1986, as having been caused by his military service. He has been allowed a pension under the Act and has, using the processes of the Act, challenged the level of his impairment assessed by the Repatriation Commission and the Veterans Review Board and the rate of pension to which he is entitled. His appeal to this Court is against the decision of the Administrative Appeals Tribunal which had increased his impairment assessment over that previously assessed by the Veterans Review Board. He challenges the Tribunal's decision on numerous grounds which are set out in the reasons that follow.

Factual Background 2 Neil Francis Husband was born on 24 May 1954. In November 1978 he enlisted in the Australian Army. He spent nine months on initial training at Singleton and was then posted to a training establishment at Canundra. He spent twelve months at that training establishment and was then posted to the Special Air Services Regiment in Perth in 1980 where he served for eleven years. He left that Regiment in May or June 1991. He was posted to Cairns for about eighteen months and then for almost a further three years was posted to Brisbane up to his discharge on 27 December 1995. 3 On 27 August 1992, Mr Husband lodged a claim for pension in respect of a number of conditions being: lower back, upper back and neck injury, malaria, hiatus hernia, ear infection, right knee and right shoulder injury, viral and parasitic infection, colds and flu. 4 A medical officer of the Department of Veterans' Affairs diagnosed the following conditions:

The Statutory Framework - Entitlement to a Pension 9 The liability of the Commonwealth to pay pension for defence-caused injury or disease is established by s 70 of the Veterans' Entitlements Act which provides, in the relevant parts of s 70(1): "(1) Where: . . . (b) a member of the Forces or member of a Peacekeeping Force has become incapacitated from a defence-caused injury or a defence-caused disease; the Commonwealth is, subject to this Act, liable to pay: . . . (d) in the case of the incapacity of the member - pension by way of compensation to the member; in accordance with this Act. . . . (7) Where, in the opinion of the Commission, the incapacity of a member of the Forces or member of a Peacekeeping Force was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered defence service or peacekeeping service, as the case may be, or but for changes in the member's environment consequent upon his or her having rendered any such service: . . . (b) if the incapacity was due to a disease - the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a defence-caused disease contracted by the member, for the purposes of this Act." Section 73 applies to pensions payable in respect of defence-caused injury or disease, the provisions of Divisions 4 and 5 of Part II relating to the rates of pensions payable to veterans and to the dependents of deceased veterans for war-caused injury or disease. Section 73(2) requires the references in the provisions of Divisions 4 and 5 of Part II to war-caused injury or disease to be read respectively as references to defence-caused injury and defence-caused disease. References in those provisions to a veteran are to be read as references to a member of the Forces or a member of a Peacekeeping Force. 10 Applying those modifications, s 21A of the Act in its application to pensions under Part 4 would read as follows: "(1) The Commission shall, subject to subsections (2) and (3), determine the degree of incapacity of a member of the Forces or a member of a Peacekeeping Force from defence-caused injury or defence-caused disease, or both, according to the provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions. (2) Subject to subsection (3) the degree of incapacity shall be determined as 10 per cent or a multiple of 10 per cent, but not exceeding 100 per cent. (3) The Commission may determine that the degree of incapacity of a member of the Forces or a member of a Peacekeeping Force from defence-caused injury or defence-caused disease, or both, is less than 10 per cent (including zero per cent), and, where it does so, it shall not assess a rate of pension, but shall refuse to grant a pension to the member on the ground that the extent of the incapacity of the member from that defence-caused injury or defence-caused disease or both, is insufficient to justify the grant of a pension."

Statutory Framework - The Rate of Pension 11 Section 22 of the Act applies to members who are paid or are eligible to be paid a pension under Part 4, other than a member to whom ss 23, 24 or 25 apply. It provides for the payment of the General Rate of pension. In subsection (2), read in its application to members of the Defence Forces at the time of this claim, said "22(2) Subject to this Division, the rate at which pension is payable to a member of the Defence Forces or a member of a Peace Keeping Force to whom this section applies in respect of the incapacity of the member from defence-caused injury or defence-caused disease, or both, is the rate per fortnight that constitutes the same percentage of the general rate as the percentage determined by the Commission in accordance with section 21A to be the degree of incapacity of the veteran from that defence-caused injury or defence-caused disease, or both, as the case may be." Sections 23 and 24 provide for the circumstances under which pension may be paid at particular rates above the General Rate, designated Intermediate Rates and Special Rates respectively. Section 25 provides for temporary payment at the Special Rate. Section 24, which specifies the Special Rate in the form in which it existed at the relevant time and expressed by reference to its application to members of the Defence Forces rather than veterans, reads as follows: "(1) This section applies to a member of the Defence Forces or of a Peacekeeping Force if: (a) either: (i) the degree of incapacity of the member from defence-caused injury or defence-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or (ii) the member is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and (b) the member is totally and permanently incapacitated, that is to say, the member's incapacity from defence-caused injury or defence-caused disease, or both, is of such a nature as, of itself alone to render the member incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and (c) the member is, by reason of incapacity from that defence-caused injury or defence-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the member was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the member would not be suffering if the member were free of that incapacity; and (d) section 25 does not apply to the veteran. (2) For the purpose of paragraph (1)(c): (a) a member who is incapacitated from defence-caused injury or defence-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if: (i) the member has ceased to engage in remunerative work for reasons other than his or her incapacity from that defence-caused injury or defence-caused disease, or both; or (ii) the member is incapacitated, or prevented from engaging in remunerative work for some other reason; and (b) where a member, not being a member who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the member shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking." 12 Similar conditions apply under s 23, to payment of an Intermediate Rate of pension, where the member is rendered incapable of undertaking remunerative work otherwise than on a parttime basis or intermittently.

Statutory Framework - Guide to the Assessment of Rates of Veterans' Pensions 13 The determination of the degree of incapacity under s 21A is required to be "…according to the provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions". 14 The approved Guide to the Assessment of Rates of Veterans' Pensions is defined in s 5Q as: "(a) the document, prepared by the Commission under section 29 under the title "Guide to the Assessment of Rates of Veterans' Pensions", that has been approved by the Minister and is for the time being in force; or (b) if an instrument varying that document has been approved by the Minister, that document as so varied." Section 29 authorises the Commission from time to time to prepare a guide so designated setting out: "(a) criteria by reference to which the extent of the incapacity of a veteran resulting from war-caused injury or war-caused disease, or both, shall be assessed; and (b) methods by which the extent of that incapacity, as assessed in accordance with those criteria, shall be expressed as a percentage of incapacity from that injury or disease, or both, being a percentage not exceeding 100 per centum." 15 By virtue of s 73 the Guide so prepared can and does apply also to the assessment of the incapacity of members of the Defence Forces or Peacekeeping Forces resulting from defence-caused injury or defence-caused disease. The Guide has no force or effect unless and until approved by the Minister. Subsection 29(4) gives binding effect to it in the following terms: "29(4) Where the Commission, the Board or the Administrative Appeals Tribunal is required to assess or reassess, or review the assessment or reassessment of, the extent of the incapacity of a veteran resulting from war-caused injury or war-caused disease, or both, the provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions are binding on the Commission, the Board or the Administrative Appeals Tribunal, as the case may be, in, and in connection with, the carrying out by it of that assessment, reassessment or review, and the assessment, reassessment or review of the extent of that incapacity made by it shall be in accordance with the relevant provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions." Section 29(5) allows for the possibility of a zero percentage assessment of incapacity. The Guide is to be tabled in each House of Parliament within fifteen sitting days after the Minister has received copies of the Guide. There is no express provision for disallowance of the Guide by either House of Parliament.

Statutory Framework - Statements of Principles 16 For completeness, reference should also be made to the functions of the Repatriation Medical Authority in the determination of Statements of Principles under Part 11A of the Act. 17 The Repatriation Medical Authority is established under Part XIA of the Act and, in particular, s 196A. Its functions are set out in s 196B and the function relevant for present purposes is that under s 196B(3): "196B(3) If the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to: (a) eligible war service (other than operational service) rendered by veterans; or (b) defence service (other than hazardous service) rendered by members of the Forces; the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out: (c) the factors that must exist; and (d) which of those factors must be related to service rendered by a person; before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service." The concept of "sound medical-scientific evidence" is defined in s 5AB(1). There it is provided that information about a particular kind of injury, disease or death is taken to be sound medical-scientific evidence if: "(2)… (a) the information: (i) is consistent with material relating to medical science that has been published in a medical or scientific publication and has been, in the opinion of the Repatriation Medical Authority, subjected to a peer review process; or (ii) in accordance with generally accepted medical practice, would serve as the basis for the diagnosis and management of a medical condition; and (b) in the case of information about how that kind of injury, disease or death may be caused - meets the applicable criteria for assessing causation currently applied in the field of epidemiology." 18 The concept of a "factor related to service" mentioned in s 196B(3)(d) is elaborated in subs 196B(4). A factor causing, or contributing to, an injury, disease or death is said to be related to service rendered by a person if, inter alia: "(a) it resulted from an occurrence that happened while the person was rendering that service; or (b) it arose out of, or was attributable to, that service; or . . . (d) it was contributed to in a material degree by, or was aggravated by, that service; or . . . (f) in the case of a factor causing, or contributing to, a disease - it would not have occurred: (i) but for the rendering of that service by the person; or (ii) but for changes in the person's environment consequent upon his or her having rendered that service." 19 A determination of a Statement of Principles by the Repatriation Medical Authority under s 196B is a disallowable instrument for the purposes of s 46A of the Acts Interpretation Act 1901 (s 196D). 20 The Statements of Principles appear to operate as statutory instruments but they derive their legal effect entirely from the substantive provisions of the Act and particularly s 120B. They fit into the general decision-making function of the Commissioner under Part VIII.

Statutory Framework - The Standard of Proof 21 Section 120 of the Act deals with the standard of proof to be applied and, relevantly to the present claim, s 120(4) provides: "(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction." 22 Nothing in the Act entitles the Commission to presume that an injury or disease suffered or contracted by a person is defence-caused or that a claimant is entitled to be granted a pension, allowance or other benefit under the Act (s 120(5)). The application of the criterion of "reasonable satisfaction" specified in s 120(4) is covered by s 120B which applies, inter alia, to a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Force. Section 120B requires the Commission to apply any relevant Statements of Principles. Subsection 120B(3) provides: "120B(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if: (a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and (b) there is in force: (i) a Statement of Principles determined under subsection 196B(3) or (12); or (ii) a determination of the Commission under subsection 180A(3); that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service."

Statutory Framework - "Disease" and "Injury" 23 The definitions of "disease" and "injury" which appear in s 5D(1) of the Act should also be noted: "5D(1) In this Act, unless the contrary intention appears: disease means: (a) any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or (b) the recurrence of such an ailment, disorder, defect or morbid condition; but does not include: (c) the aggravation of such an ailment, disorder, defect or morbid condition; or (d) a temporary departure from:

(ii) the accepted ranges of physiological or biochemical measures;

that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels);

injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:

(b) the aggravation of a physical or mental injury." Unless the contrary intention appears a reference to the incapacity of a member of the forces from a defence-caused injury or a defence-caused disease is a reference to the effects of that injury or disease and not a reference to the injury or disease itself (s 5D(2)(b)).

Guide to the Assessment of Rates of Veterans' Pensions - Fifth Edition 1998 24 The Fifth Edition of GARP published in 1998, which is the relevant edition for present purposes, identifies two elements involved in the assessment of degrees of incapacity. They are "medical impairment" and "lifestyle effects". Medical impairment is said to have two components being: "(1) physical loss of, or disturbance to, any body part or system; and (2) the resultant functional loss." Physical loss is to be rated against criteria in impairment tables. Functional loss is to be rated against criteria in functional loss tables. Under the heading at the beginning of GARP "The Subject of Assessment" it is said: "In making an assessment the clinical features of war-caused or defence-caused injuries or diseases are to be taken into account. Clinical features of sequelae of accepted conditions can only be assessed after the sequelae have been determined to be war-caused or defence-caused." The issue of sequelae arises in the present case, as will be seen, in relation to chronic fatigue syndrome said to be one of the sequelae of leptospirosis but not treated as defence-caused by the Tribunal. Greater emphasis has been given throughout the GARP to functional loss as against physical loss as a basis for assessment. This is measured by reference to an individual's performance efficiency compared with that of an average healthy person of the same age and sex in a set of defined vital functions. This use of functional loss is "…a means of compensating for the loss of ability to perform everyday functions". 25 Medical impairment is measured chiefly by loss of vital functions addressed in twelve system specific chapters including "Impairment of Spine and Limbs". Functional loss is required to be rated against criteria in Functional Loss Tables. Each functional loss associated with an accepted condition is to be identified and rated individually. "Other impairment" is said to be the "physical loss of, or disturbance to, any body part or system". It is to be rated against criteria in other impairment tables. The Guide provides that: "As a general rule, ratings from Other Impairment and Functional Loss tables are not to be combined for the same condition. Exceptions to this rule are expressly indicated in particular chapters. When ratings from both types of table can be applied, the higher rating is to be chosen." 26 At page 10 of the Guide there is discussion of conditions of fluctuating severity and how they are to be assessed. Under the heading "Time Reference" it is said: "The severity of many conditions fluctuates over time and may be better assessed by an averaging process. Therefore, because some criteria refer to the occurrence of symptoms during a period, it will be necessary to assess an averaged severity during that period. Twelve months is usually a suitable period, as it allows any seasonal fluctuation to be observed, but the period may be varied according to circumstances." As for the duration of the assessment period, this is also discussed at page 10 and is in issue in this case: "While the Act requires the assessment of a rate or rates of pension over an "assessment period" (see section 19 of the Act), that assessment can in practice only be made by reference to the available medical and other material that, of necessity, relates to a particular point or period in time. Therefore, the assessment of the impairment and lifestyle ratings during the "assessment period" must be based on the assessor's reasonable satisfaction as to those ratings throughout the assessment period, based on the available material. If there is a significant change in impairment or lifestyle during an assessment period, the assessment period must be divided into appropriate periods to reflect those changes, and separate assessments made of the degree of incapacity." 27 Chapter 3 of the Guide, which is applicable for present purposes, deals with Impairment of Spine and Limbs. Part 3.1 deals with the upper limbs and Part 3.2 with the lower limbs. Part 3.3 deals with an impairment of the spinal column. Steps for determination of the impairment rating for conditions of the spine are set out in this Part, supported by tables for the calculation of functional loss (3.3.1 and 3.3.2). Step 1 in the determination of the impairment rating for conditions of the spine requires a calculation of the functional impairment due to restriction of movement of the spine as a result of an accepted condition. It requires the application of Table 3.3.1 to rate spinal function. That table is based upon the range of movement from the spine. Ratings may be given from this Table for cervical spine impairment and also for thoraco-lumbar spine impairment. The loss of range of movement is to be estimated to the nearest quarter. 28 The entry in Table 3.3.1 relied upon by the Tribunal in this case allocates 10 points of impairment rating to loss of about one quarter normal range of movement of the thoraco-lumbar spine and to loss of about half of normal range of movement to the cervical spine. 29 Step 2 involves the application of Table 3.3.2 to assess functional loss of the thoraco-lumbar spine that is not adequately measured by loss of range of movement. Ratings from Table 3.3.2 are not to be combined with any ratings from Table 3.3.1 in respect of the thoraco-lumbar spine. The highest rating in Table 3.3.2 is 15 points which is applied to the case in which thoraco-lumbar spine condition generally causes pain or undue fatigue within five minutes, and so requires very frequent changes of posture. Mr Husband argued that this is the rating which should have been applied to his condition. 30 Where thoraco-lumbar spine impairment is being assessed, step 3 requires comparison of the ratings of impairment in step 1 using Table 3.3.1 and step 2 using Table 3.3.2. The higher rating is to be taken. Step 4 requires the applicable age adjustment to the functional impairment assessed according to those processes. That comes from Table 3.6.1. Step 5 requires assessment of any other impairment due to crush fractures of the vertebrae and is not applicable in the present case. The higher of the ratings derived from step 4 and step 5 is to be taken (step 6). Other tables in Chapter 3 deal with other impairments. Thus Table 3.1.2 sets out impairment ratings for loss of musculoskeletal function based on the use of the limb as a whole. 31 Intermittent impairment is dealt with in Chapter 15 which contains tables for calculating the impairment rating due to an accepted intermittent condition. The rating is to be assessed by reference to variables of severity, duration and frequency of impairment (Tables 15.1, 15.2, 15.3 and 15.4). It is not necessary to set out all the steps and Tables of this assessment process here.

Statements of Principle - Chronic Fatigue Syndrome 32 A Statement of Principles concerning chronic fatigue syndrome has been determined by the Commission under s 196B of the Act. 33 Paragraph 5 of the Statement, which is relevant for present purposes, says that: "5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting chronic fatigue syndrome or death from chronic fatigue syndrome with the circumstances of a person's relevant service are: (a) suffering from serologically confirmed acute Epstein-Barr virus infection at the time of the clinical onset of chronic fatigue syndrome; or (b) suffering from serologically confirmed acute Ross River virus infection at the time of the clinical onset of chronic fatigue syndrome; or (c) inability to obtain appropriate clinical management for chronic fatigue syndrome." The condition known as chronic fatigue syndrome is defined in par 2 of the Statement of Principles by reference, inter alia, to persistent or relapsing fatigue, post-exertional fatigue and neuropsychiatric dysfunction.

The Tribunal's Decision 34 The Tribunal referred to Mr Husband's conditions previously accepted as defence-caused and identified its own task as being: "…to assess the conditions under the relevant Guide to the Assessment of Veterans' Pensions ("GARP") and, accordingly, to decide the appropriate level of the applicant's pension which should apply during each of the periods referred to in the VRB decision." The Tribunal was obliged to use the then current edition of GARP, the 5th edition, although an earlier edition had been in force at the time of the decision under review which was used by the VRB in that decision. After reviewing the factual background already set out and the oral evidence and other documentary evidence before it, the Tribunal decided, and it was agreed at the hearing, that the appropriate manner in which it should consider and assess Mr Husband's various accepted disabilities was by reference to each of the three periods defined in the decision of the VRB which was under review, that is: (a) from 17 December 1993 to 20 April 1995; (b) from 21 April 1995 to 18 April 1996; (c) from 19 April 1996 to the date of the decision. The Tribunal found that Mr Husband was suffering incapacity from his accepted disability of leptospirosis during the first two periods under review and that he was not suffering incapacity from that condition during the third period under review. It found that the leptospirosis continued to remain asymptomatic. A condition of chronic fatigue syndrome evident in the third period was "probably a sequalae (sic) of his defence-caused leptospirosis" but was "nevertheless not an accepted disability as at the date of hearing". The Tribunal found that the symptoms of chronic fatigue syndrome involved should not be regarded as ongoing effects of leptospirosis. Consequently it was not able to take those symptoms into account in assessing disability pension. 35 The Tribunal regarded the seven accepted disabilities remaining as relatively straight forward and dealt with them as part of detailed assessments set out in pars 13 to 24 of the reasons. In the assessment process, relying upon s 120(4) of the Act, the Tribunal held that it was required to decide all relevant matters to its reasonable satisfaction. Applying the GARP tables for each of the three periods under review, the Tribunal assessed Mr Husband's degree of incapacity in each of those periods as eighty per cent. It summarised those assessments in three convenient tables set out in its reasons which identified, in each case, the condition assessed, the GARP tables applied, the points rating given to each condition, their combined value, the lifestyle rating and the calculated degree of incapacity. Those tables are set out as follows: FIRST REVIEW PERIOD - 17 December 1993 - 20 April 1995 Condition/matter assessed Table/s Applied Rating Thoraco-lumbar Spondylosis 3.3.1, 3.6.1 11 points Cervical Spondylosis 3.3.1 0 points Rotator Cuff Lesion Right Shoulder 3.1.2, 3.6.1 11 points Medial Ligament Injury Right Knee 3.2.2 5 points Resting Joint Pain 3.4.1 5 points Leptospirosis 16.3 20 points Recurrent Otitis Externa 7.2.1 2 points Tinnitus 7.1.11 0 points Bilarteral Sensori-neural Hearing Loss Chapter 7 0 points Malaria - 0 points Combined Value 18.1 45 points Lifestyle rating Chapter 22 4 Degree of Incapacity 23.1 80 per cent

SECOND REVIEW PERIOD - 21 April 1995 - 18 April 1996 Condition/matter assessed Table/s Applied Rating Thoraco-lumbar Spondylosis 3.3.1, 3.6.1 11 points Cervical Spondylosis 3.3.1 0 points Rotator Cuff Lesion Right Shoulder 3.1.2, 3.6.1 11 points Medial Ligament Injury Right Knee 3.2.2 5 points Resting Joint Pain 3.4.1 5 points Leptospirosis 16.3 10 points Recurrnet Otitis Externa 7.2.1 2 points Tinnitus 7.1.11 0 points Bilateral Sensori-neural Hearing Loss Chapter 7 5 points Malaria - 0 points Combined Value 18.1 40 points Lifestyle rating Chapter 22 4 Degree of Incapacity 23.1 80 per cent

THIRD REVIEW PERIOD - 19 April 1996 to date Condition/matter assessed Table/s Applied Rating Thoraco-lumbar Spondylosis 3.3.1, 3.6.1 11 points Sciatic pain 3.2.2 5 points Cervical Spondylosis 3.3.1, 3.6.1 6 points Rotator Cuff Lesion Right Shoulder 3.1.2, 3.6.1 17 points Medial Ligament Injury Right Knee 3.2.2 5 points Resting Joint Pain 3.4.1 5 points Leptospirosis 16.3 0 points Recurrent Otitis Externa 7.2.1 2 points Tinnitus 7.1.11 5 points Bilateral Sensori-neural Hearing Loss Chapter 7 5 points Malaria - 0 points Combined Value 18.1 45 points Lifestyle rating Chapter 22 4 Degree of Incapacity 23.1 80 per cent

36 Having found Mr Husband's degree of incapacity to be eighty per cent for all three periods from 17 September 1993 to the date of its decision, the Tribunal moved on to consider whether an earnings-related rate of pension under s 23 (Intermediate Rate of Pension) or s 24 (Special Rate of Pension) was payable during any part of the total period reviewed. Mr Husband, having been employed full-time as a soldier until 27 December 1995, the Tribunal could only consider the period from 28 December 1995 onwards. It described as an essential requirement for either Intermediate or Special Rate that an applicant for those benefits had been prevented from continuing to undertake remunerative work only by a defence-caused injury or disease or both. The Tribunal found, however, that Mr Husband, who was on full duties until his discharge, decided of his own accord not to seek employment after leaving the Army in December 1995 until, in his view, he had fully recovered from his remaining symptoms of leptospirosis. The Tribunal was satisfied that this situation also continued to apply through the Second Review Period up to 18 April 1996. On that basis it found Mr Husband not to be eligible for either the Intermediate or Special Rates up to that time. 37 From April 1996 onwards the Tribunal found that Mr Husband's inability to work or to seek work was not the result of his accepted disabilities alone. It was his non-accepted disability diagnosed as chronic fatigue syndrome which was the main factor in this regard. The Tribunal therefore found that he was not eligible for either the Intermediate or Special Rates of pension during the Third Review Period. The Tribunal was thus "reasonably satisfied" that Mr Husband's disability pension should be at eighty per cent of the General Rate for the full three periods reviewed commencing from 17 September 1993. On that basis it set aside the decision of the Veterans' Review Board under review and in lieu thereof decided that Mr Husband was entitled to payment of Disability Pension at eighty per cent of the General Rate with effect from 17 September 1993.

Review of Decisions of Administrative Appeals Tribunal - General Principles 38 There are certain general considerations affecting the decision-making powers of the Administrative Appeals Tribunal and review of its decisions which need to be restated as much of Mr Husband's argument seems to have been based upon some misconceptions about those things. 39 The first consideration is that the Tribunal, in reviewing an administrative decision, is authorised by s 43 of the Act to "…exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision". In making its own decision the Tribunal can affirm the decision under review, vary it or set it aside and make its own decision in substitution for the decision so set aside. In carrying out its decision-making function the Tribunal stands in the shoes of the decision-maker whose decision is under review. It undertakes the exercise of decision-making afresh. It is therefore not required to have regard to the assessments made by the decision-maker whose decision is under challenge. In his submissions, Mr Husband referred to assessments made by the Department and the Veterans' Review Board. 40 More importantly, s 44 of the Act limits the rights of appeal to the Federal Court against decisions of the Tribunal to questions of law. The questions of law alone are the subject matter of the appeal and the ambit of the appeal is confined to them - Brown v Repatriation Commission (1985) 60 ALR 289 at 291. It is a corollary of that limitation that a finding by the Tribunal on a matter of fact cannot be reviewed on appeal unless vitiated by an error of law - Waterford v The Commonwealth (1987) 71 ALR 673 at 689 (Brennan J). There is much in Mr Husband's submissions by way of challenge to the Tribunal's findings of fact. Criticisms of the Tribunal's decision based upon the particular numerical assessments that it made are criticisms of the Tribunal's evaluations of his various conditions. Those evaluations are judgments of fact and are not able to be challenged in this Court. Contentions that a higher rating should have been applied or that the Tribunal should not have relied on the evidence of any particular witness or that the evidence of a witness relied upon was "insubstantial" are not able to be entertained in these proceedings. Nor can criticism that the Tribunal should have given more weight to the evidence of another witness be entertained. The weight which the Tribunal gives to the evidence of witnesses before it is a matter of fact for it. 41 Assertions that a decision is against the evidence or the weight of the evidence will be given short shrift. They are arguments that may apply on appeals from courts of law but have no place where the appeal is from an administrative tribunal that is not bound by the rules of evidence - Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598. There is, of course, always the possibility of an extreme case in which so little weight is attributed to a matter which is deserving of much that it amounts to a failure by the Tribunal to have regard to a relevant consideration which it is bound to take into account - Federal Commissioner of Taxation v Swift (1989) 18 ALD 679 at 673. 42 Against this background it is necessary to refer to the grounds of appeal.

Grounds of Appeal 43 Mr Husband's notice of appeal, as amended at the hearing, set out twenty grounds. Many, if not most, of the grounds prima facie went to questions of fact. It is not necessary to set them out here as they will be referred to below. The grounds can be considered in the light of the statutory framework and the Tribunal's findings referred to earlier as well as the principles governing review of the Tribunal's decisions.

Ground 1 - Alleged Incorrect Application of GARP 44 The Tribunal, it is said, erred in law in failing correctly to apply the GARP in assessing various of Mr Husband's conditions namely the thoraco-lumbar spondylosis, the rotator cuff lesion right shoulder, the cervical spondylosis, the tinnitus and the leptospirosis. It is said the appropriate Tables were not applied. 45 In relation to the assessment of thoraco-lumbar spondylosis, this ground involves a contention that the Tribunal applied Table 3.3.1 to the assessment of Mr Husband's disability when the relevant Table was 3.3.2. It was submitted that Table 3.3.1 does not involve an assessment of the extent or type of disability. Table 3.3.2 assesses functional loss based on use of the spine irrespective of the range of movement loss. 46 The Tribunal's assessment of Mr Husband's thoraco-lumbar spondylosis for the first period rested upon a finding of fact that "there was a loss of approximately one quarter of normal range of movement during this period". It found the appropriate Table to be 3.3.1 and an impairment rating of 10 points to be applicable. Given the Tribunal's findings of fact about loss of range of movement, this was undoubtedly a correct application of that Table. Further, Mr Husband was 44 at the time of the decision and a correct application of Table 3.6.1 led to an age adjusted impairment rating of 11. Table 3.3.2 would have applied if, and only if, the Tribunal were able to derive a higher impairment rating from its application in this case. That would have required a finding of fact that Mr Husband was suffering from a thoraco-lumbar spinal condition causing pain or undue fatigue within five minutes and requiring very frequent change of posture. According to Mr Husband, the evidence supported the proposition that this was his condition. 47 On a first reading of the reasons it might appear that the Tribunal had not addressed the question whether Table 3.3.2 would yield a higher impairment rating for Mr Husband than Table 3.3.1. But as counsel for the Commission pointed out, there was ample evidence to support the conclusion that the thoraco-lumbar movements were restricted by one quarter and that the assessment based on loss of movement was correct. In his oral evidence before the Tribunal, Mr Husband had accepted that he had a one quarter restriction in movement. He had suggested that Table 3.3.2 should be applied but was unable to suggest a basis upon which it could be applied. It was put to him by the Tribunal that if he were prepared to give sworn evidence and point to medical reports where he had made a complaint in 1993 that he had to shift every five minutes, then the Tribunal could apply Table 3.3.2. He did not give sworn evidence and ultimately conceded that Table 3.3.2 would yield a 10 point rating anyway so that it would make no difference. There is no doubt that the Tribunal properly understood the significance and application of Table 3.3.2. Its brief reference to the appropriateness of Table 3.3.1 in the reasons can be read, in the circumstances, as a finding of fact that evaluation under Table 3.3.2 would yield no greater impairment rating for Mr Husband than under Table 3.3.1. In the circumstances this aspect of ground 1 reduces to a challenge to a finding of fact. This reading of the Tribunal's reasons applies to all three periods for which it assessed impairment due to thoraco-lumbar spondylosis. 48 As to variations in the severity of the condition, the Tribunal made the general comment at the beginning of the first period assessment that: "…where impairment resulting from some of the conditions varied during the period, the Tribunal decided where possible on a mean value and at the hearing both parties agreed to this method." An averaging approach is open as appears from page 10 of the GARP under the heading "Time Reference" set out earlier in these reasons. In some cases it will be necessary to identify assessment periods within a larger period of varying impairment. And where there are intermittent disorders of the kind defined in Chapter 15, then the criteria in that Chapter can be applied. But the selection of means of assessment in the end rests upon the Tribunal's view of the evidence. In my opinion it has not been demonstrated that the selections it made were based upon a wrong view of the law, whatever argument may be raised about its view of the facts. 49 Mr Husband's argument about the impairment rating applied to the rotator cuff lesion right shoulder again amounted to an attack upon the Tribunal's findings of fact. For the first period the Tribunal assessed "no loss of normal range of movement of the shoulder" but "some minor loss of grip strength and consequent difficulties". It applied Table 3.1.2 to allow 10 points of impairment on the basis of the following criterion: ". Can use limb reasonably well in most circumstances, but frequent difficulties are manifested by: - minor loss of digital dexterity causing handwriting changes, or difficulty in manipulation of small or fine objects, or - minor loss of grip strength causing difficulty in gripping moderately heavy to heavy objects. . can use limb efficiently for normal tasks without excessive fatigue for no more than ten minutes." Fifteen point assessment under Table 3.1.2 would have required the Tribunal to be satisfied of the following criterion: "Can use limb reasonably well in most circumstances, but frequent difficulties are manifested by: - minor loss of digital dexterity causing handwriting changes or difficulty in manipulation of small or fine objects, and - minor loss of grip strength causing difficulty in gripping moderately heavy to heavy objects." The Tribunal's choice of the applicable criterion is a question of fact based upon its view of the evidence. No error of law is demonstrated in that choice. 50 A similar conclusion can be reached in relation to the tinnitus and leptospirosis assessments which are also criticised under ground 1 of the grounds of appeal. Assertions of misquotation and misrepresentation of the evidence by the Tribunal in relation to the tinnitus assessment were made. The misquotation relied upon was the Tribunal's statement in its reasons that Mr Husband had said his tinnitus was currently present every day and getting worse although he could manage satisfactorily without a masking device. That was on the evidence an inference the Tribunal drew from Mr Husband's evidence. In that evidence he indicated he had been told by Dr Cardwell ways of learning to cope with tinnitus and that he had done some of these things and that they helped "a bit". He had not adopted the use of a masking device. But even if the Tribunal's conclusion were wrong, that was an error of fact not reviewable in these proceedings. 51 In relation to the leptospirosis assessment for the second and third period, Mr Husband's criticism was largely based upon criticism of the evidence relied upon by the Tribunal. He wrongly said that in assessing leptospirosis the Tribunal particularly relied upon the evidence of Dr Cardwell. In fact, in the passage to which he pointed, the Tribunal was summarising the basis upon which the Commission had found Mr Husband to have had no impairment after April 1996. The rest of his submissions in relation to the assessment of leptospirosis are based upon alleged failures by the Tribunal to give adequate weight to the evidence of a Dr Prentice. The Tribunal in fact relied principally upon the evidence provided by Drs Whiting and Golledge that, while Mr Husband was suffering from leptospirosis during the first two periods under review, he was not suffering incapacity from that condition in the third period commencing in April 1996. There is no reviewable error disclosed in the Tribunal's approach to these conditions.

Appeal Grounds 2 to 12 Inclusive 52 Each of these grounds on its face says the Tribunal erred "in fact and law" in its treatment of various aspects of the evidence of medical specialists and Mr Husband's own evidence. I do not propose to review any of these grounds in detail. Each attempts to invite this Court into merits review of the Tribunal's decision which is not available in these proceedings.

Ground 13 - Failure to Comply with Section 37 53 The Tribunal is said to have failed to consult, and if unavailable, to request relevant documents including those from Mr Husband's final medical board report prior to discharge from the Army. He submitted the Tribunal should have found he was on restricted duties prior to his discharge. This was evidently directed at the Tribunal's findings related to the applicability of the Special Rate provisions of the Act namely that Mr Husband had not been prevented from continuing to undertake remunerative work which he was undertaking by the defence-caused injury or disease or both. The Tribunal found Mr Husband was employed full-time as a soldier in the Army until 27 December 1995 so that neither s 23 nor s 24 could apply to him for that period. It found also that he was on full duties until his discharge. That finding is contested by Mr Husband who says he was on restricted light duties. There is no evidence, he submitted, to support the finding. To say he was a full-time soldier is not the same as saying he was on full duties. Nevertheless, given the Tribunal's earlier finding about his incapacity to perform all the tasks expected of him, it seems that the end result of its deliberations is not so different from the position taken by Mr Husband. And in any event, it has no effect upon the application of ss 23 or 24 for that period. The question arises whether the finding affected the Tribunal's consideration of Mr Husband's post discharge capacity where it was held that he "decided of his own accord not to seek employment after leaving the Army in December 1995 until, in his view, he had fully recovered from the remaining symptoms of leptospirosis". 54 In response counsel for the Commission pointed to oral evidence from Mr Husband to the Tribunal that he did not work after his discharge from the Army to "try and give [his] body a rest". He was not looking for employment but was doing part-time study to try to improve his qualifications. He wanted to work five half days a week. In April 1997, Dr Ker had reported that he was capable of working twenty or more hours a week in sedentary employment. I am satisfied that the findings of fact made on this issue by the Tribunal were open on the evidence. Even if the finding that Mr Husband was on full duties was incorrect it was an error on a matter of fact which is not reviewable here. And given the state of evidence it is unlikely to have affected the outcome in terms of the application of ss 23 and 24. 55 Mr Husband alleges failure by the Commission to make available to the Tribunal reports of any medical boards pointing out that he was restricted to sedentary duties. These were, of course, matters which he could have raised with the Tribunal. A failure by the Commission in this regard is not an error of law by the Tribunal. Ground 13 is not made out.

Ground 14 56 This ground raises the same point about non-compliance of s 37 by the Commission and alleged failure by the Tribunal to ensure the Commission complied with the requirements of that provision. There is nothing in the argument put by Mr Husband to indicate any error of law on the part of the Tribunal in this respect.

Ground 15 57 The Tribunal is said to have erroneously relied upon a Federal Court decision in Owen v Repatriation Commission (1995) 59 FCR 93. That was a case involving rejection of Special Rate entitlement on the basis that the relevant incapacity was derived from a shoulder injury that had not been claimed as war-caused by the applicant. The case was not referred to by the Tribunal in its reasons for decision. There is no error disclosed in ground 15. I note however the submission by counsel for the Commission that the Tribunal's treatment of chronic fatigue syndrome was required by the decision in Owen's case and that is referred to further below.

Grounds 16 and 17 58 These grounds seek to renew the attack upon the Tribunal's selection of relevant periods for assessment of impairment and the use of an averaging mechanism over those periods as part of that assessment. As already stated, this is essentially an attack upon the Tribunal's fact finding which underlies the approach to assessment that was open to it and was selected by it. There is no reviewable error disclosed in these grounds.

Grounds 18 and 19 59 These grounds related to the Tribunal's rejection of Mr Husband's claim to entitlement to a special rate on the basis of total permanent incapacity under s 24 of the Act. The only question of substance raised by these grounds is the Tribunal's treatment of the condition of chronic fatigue syndrome from which Mr Husband was said to suffer. The finding as to chronic fatigue syndrome was relevant to the third period and was in the following terms, set out at par 11 of the Tribunal's reasons for decision: "The condition of chronic fatigue syndrome, diagnosed by Drs Whiting and Golledge and evident in this third period, was stated by Dr Golledge to be a sequalae (sic) of the applicant's leptospirosis. This syndrome, albeit probably a sequalae (sic) of his defence-caused leptospirosis, is nevertheless not an accepted disability as at the date of the hearing. Furthermore, based on the weight of medical evidence before it, the Tribunal finds that the symptoms of chronic fatigue syndrome involved should not be regarded as ongoing effects of leptospirosis. Consequently, the Tribunal is not able to take these symptoms into account in assessing disability pension (p 8 and 9 of GARP refer)." 60 The first, and it seems complete, answer to Mr Husband's argument based on chronic fatigue syndrome is Owen's case referred to earlier. This condition was evidently not claimed as a service related disease. It was therefore not open to the Tribunal so to treat it. As Finn J said, at p 100: "Section 24 presupposes that a determination has been made that an injury has been war-caused. Its concern in subs (1)(c) is with an effect of the incapacity resulting from that injury. The section does not permit a new determination to be made for its purposes that an injury is war-caused." His Honour went on to note that it would be open to a veteran to make a claim under the Act for a determination that a new injury, causally related to or contributed by an already determined war-caused injury, is itself war-caused within the terms of the Act. 61 The limitation on the Tribunal's jurisdiction to entertain a claim for Special Rate under s 24 based on a condition which was not itself the subject of an original claim reflected observations of the Full Court in Banovich v Repatriation Commission (1986) 69 ALR 395. It is to be noted also that findings as to the causation of chronic fatigue syndrome are to be governed by the statement of principles referred to earlier which appear to link it to either Epstein-Barr virus infection, Ross River virus infection or inability to obtain appropriate clinical management for the syndrome. The Tribunal has not made any discernible error of law in this respect and grounds 18 and 19 must also fail.

Ground 20 62 This is a catch all ground which asserts that the Tribunal erred in law because its decision could not have been made on the basis of reasonable satisfaction or balance of probabilities. The ground, being broadly based, does not identify any error on the part of the Tribunal.

Conclusion 63 As can be seen from the preceding reasons, in the end the numerous grounds of appeal in this application reduce to an invitation to the Court to embark upon merits review of the Tribunal's decision, a course that is not open to it. No error of law has been disclosed on the part of the Tribunal and, in the circumstances, the application will be dismissed with costs. I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Mr N F Husband appeared in person. Counsel for the Respondent: Mr P J Hanks QC

Solicitor for the Respondent: Australian Government Solicitor

At a glance

Court

Decision date

Before

Source

Judgment (31 paragraphs)

Parties

Cases Cited (5)