Secretary to the Department of Social Security v Riley

In dealing with the applicant's claim the Commission, for reasons related to the availability of diagnoses, split the claim into two parts, the one dealing with the back and hip conditions, the other with the skin condition. In its decision of 12 December 1991 the Commission rejected the claim that the back or hip conditions were war-caused. As I have previously indicated the Commission subsequently conceded to the contrary in the proceedings before the Tribunal. The matter, though, of note is the character of the claim that the Commission appears to have regarded itself as making a determination upon. The terms of the Determination itself are indicative of the Commission's view of this: "DETERMINATION Lumbar spondylosis, osteoarthritis left hip are determined not to be war caused diseases within the meaning of section 9 of the Veterans' Entitlements Act 1986. The claim for pension is refused."

To state the obvious, insofar as the Commission was concerned, the claim for a pension was to be determined by its making a determination on whether the claimed disabilities were war caused. I would note in this that it was not at any stage drawn to the Commission's notice that the applicant was claiming that his shoulder injury was war-caused. The second part of the applicant's claim - that relating to his skin condition - was the subject of the second decision of the Commission of 30 March 1992. Again this condition was rejected as a war caused condition. And again I would note that the Commission in its Determination regarded this as the decision it was obliged to make for the purposes of deciding the claim. Though the skin condition was ultimately the subject of review by the Tribunal, it has no bearing on the matters in issue in this appeal and no further separate reference will be made to it. The applicant sought a review by the Board of both Commission decisions. The Application for Review indicated that the applicant considered "that the conditions of my service have not been fully considered by the decision-maker." The applicant made no reference in the application to his right shoulder injury or to the fact that it should be considered as a war-caused injury. On 17 September 1992 the Board affirmed the Commission's decisions of 12 September 1991 and 30 March 1992. The matter of the right shoulder injury, as counsel for the applicant conceded in this Court, was not raised explicitly before the Board. To abbreviate the Board's characterisation of the decisions under review this was, in relation to the decision of 12 December, 1991, "that lumbar spondylosis and osteoarthritis left hip are not war-caused within the meaning of section 9 of the Veterans' Entitlements Act 1986". A like characterisation was given to the decision of 30 March 1992 in relation to the skin condition. On 30 October 1992 an Application for Review was filed with the Tribunal, the stated reason for the application being that: "THE VETERANS' REVIEW BOARD ERRED IN FACT & IN LAW IN AFFIRMING THE DECISIONS OF THE REPATRIATION COMMISSION OF 12/12/91 & 30/3/92 WHICH DETERMINED THAT LUMBAR SPONDYLOSIS, OSTEOARTHRITIS LEFT HIP AND LICHEN PLANUS CHRONICUS (the skin condition) WERE NOT WAR CAUSED."

At the risk of labouring the point, one would have thought by this stage in the progress of this claim that all concerned (including the applicant) would have had an informed appreciation of what were considered to be the decisions in issue and, furthermore, that those decisions did not relate in any way to the question of whether the applicant's shoulder injury was, relevantly, war caused. Be this as it may, that question emerged during the Tribunal hearing. The alleged failure of the Tribunal properly to address it is at the core of the appeal made to this court. The applicant gave evidence before the Tribunal suggesting that his back condition caused him to adopt a posture in using a brace to change a wheel which in turn was a cause of the shoulder injury. His wife gave some evidence in support of the difficulties his back caused at work. Dr Hadley, an orthopaedic surgeon, having received a history from the applicant which linked his shoulder injury to his back, reported that (inter alia) his right shoulder injury should be accepted as a war service related disability. Before turning to consider how the Tribunal dealt with this matter it is appropriate to note for the sake of completeness that on 18 February 1993, that is, after the filing of the Application for Review with the Tribunal but before the Tribunal's hearing, the applicant lodged a separate claim with the Commission in respect of his right shoulder. The Tribunal's Reasons The agreement reached by the Commission and the applicant that the back and hip conditions were war caused and that the applicant in consequence was entitled to a pension appeared to leave the Tribunal with only one issue to determine. That issue was the rate of the pension to which the applicant was entitled. To qualify for the special rate, as the Tribunal noted the applicant had to satisfy the three conditions stipulated in s24(1) of the Act. These conditions are, for present purposes - "(a).... (i) the degree of incapacity of the veteran from war-caused injury ... is determined under section 21A to be at least 70% or has been so determined by a determination that is in force. (b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury ... is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and (c) the veteran is, by reason of incapacity from that war-caused injury ... alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages ... that the veteran would not be suffering if the veteran were free of that incapacity."

It was accepted without demur that the applicant did in fact satisfy the first two of these conditions. Not so the third. Given that it was the right shoulder injury which was the immediate cause of the applicant's being "prevented from continuing to undertake remunerative work", the applicant sought for the first time, as I have noted, to have that injury regarded as war-caused the applicant reasoning that there was a sufficient causal relationship between the back injury and the posture it forced him to assume when changing the wheel, and the right shoulder injury which was sustained. The respondent in contrast submitted that it was for the Commission in the first instance to make a determination whether or not the shoulder injury was war-caused and absent such a determination on its part there was no decision in existence on this matter capable of being reviewed by the Tribunal. After referring to a passage from the judgment of the Full Court of this Court in Banovich v Repatriation Commission (1986) 69 ALR 395 at 404 for analogical purposes, the Tribunal concluded that, for the purposes of s24(1)(c), it was - "not satisfied that the incapacity of the Applicant for employment is as a result of war caused injury or disease alone. The incapacity as I have indicated above was precipitated by the right shoulder injury which has not been decided as war caused."

Earlier in its reasons the Tribunal referred to the separate claim made on the Commission on 10 February 1993 which sought to have the right shoulder injury regarded as war caused. It then went on to note that that claim - "was not part of the proceedings previously before the VRB in either application. There has been therefore no decision made by the Respondent or the VRB in respect of the right shoulder which is capable of being reviewed presently by this Tribunal."

However, in the paragraph preceding that noted above expressing its conclusion on s24(1)(c), the Tribunal found that: "There is no evidence which connects the right shoulder injury to the pre-existing back and hip injuries. I am not satisfied therefore that the right shoulder injury is a war caused injury or disease." This paragraph was at the forefront of the applicant's attack on the Tribunal's reasons for decision in his appeal to this Court. To that appeal I now turn. The Appeal under the Administrative Appeals Tribunal Act 1975, s44(1) Four questions of law were raised in the appeal. These were - (1) Did the Tribunal misdirect itself in the application of s24? (2) Did the Tribunal apply the wrong test in law when it failed to link the right shoulder injury to the pre-existing back and hip injuries accepted as war caused? (3) Did the Tribunal err in law in determining that the right shoulder injury was not a war caused injury or disease? (4) Did the Tribunal misdirect itself as to the requirement of s120 when making its determination? During his address in reply counsel for the applicant sought leave to add two additional questions of law, the one related to the inadequacy of the Tribunal's reasons for decision, the other to procedural fairness. Leave was denied after argument. As to the four points noted above, all, in my view, lack substance. The burden of the applicant's submissions was to suggest that the Tribunal was obliged to make a determination as to whether the shoulder injury was war-caused and that if the Tribunal had properly addressed this matter it would not have applied s24(1)(c) as it did. Given that the determinations both of the Commission and of the Board were limited to the back and hip injuries, counsel for the applicant recognised the need to explain why, this notwithstanding, the Tribunal was obliged to make a determination in relation to this different injury. As I understood his argument it took this course: (i) the claim in respect of which the Commission was to make a determination was simply a claim for a pension; (ii) the applicant, by virtue of s14(3) of the Act, is entitled to submit evidence in support of the claim subsequent to the making, but before the final determination of the claim; (iii) in the present case when evidence of the right shoulder injury was introduced in the Tribunal hearing, the claim had not been finally determined because of the provisions of s14(7); and (iv) when the Tribunal "stands in the shoes of the Commission" where its decision is affirmed by the Board, the Tribunal no less than the Commission is obliged (consistent with the Act, s18(1)) "to determine ... all matters relevant to the determination of the claim" and the status of the right shoulder injury was such a matter. It was submitted in the alternative, though much more faintly, that the question of the shoulder injury was before the Commission from the outset because of the reference made to the applicant's posture and shoulders in an answer given in the personal details form prepared for his medical examination. This submission in my view is wholly lacking in substance. The reference, which is set out verbatim earlier in these reasons, does not identify an injury as such. When considered in light of the claim form it did not, and would not reasonably have been expected to, attract the separate attention either of those examining his medical conditions or of those determining his claim. Of the four steps in the applicant's approach noted above the first is the critical one, that is, that the determination to be made by the Commission was simply as to a claim for a pension. Not surprisingly the respondent's submissions focussed heavily on that step. It was submitted by the respondent that the claim for a pension under s14(1) was a claim in respect of particular and particularised disabilities said to be war-caused and that the decisions made by the Commission were limited to those disabilities. In consequence the Tribunal's review being confined to those decisions, it lacked jurisdiction to make a decision in relation to any alleged war-caused disabilities other than those raised for the determination of the Commission. The provisions of the Act, s175(1)(a) and of the Administrative Appeals Tribunal Act, 1975, sections 25(4) and 43(1) all contemplate the Tribunal's power of review being limited to a review of the decision in respect of which application is able to be made to it: see also Secretary to the Department of Social Security v Riley (1987) 17 FCR 99 and Stafford v Repatriation Commission (1995) 21 AAR 97. For the purposes of this appeal I am prepared to hold that the power of review is so limited without expressing a view as to whether this is so for all purposes and in all circumstances. Central to the present appeal is thus the issue: what is the "decision" in respect of which application for review to the Tribunal was made? The answer to this in my view can be simply put. That decision is the response which, in conformity with the Act, needs to be given to the question raised for the Commission by the applicant in his claim for a pension. It doubtless is the case that claims can be made in terms which, because of their vagueness, generality or ambiguity, leave it to the Commission to ascertain as best it can the nature of the claim being made. Such is not the case here. While the Act does not in terms require an applicant to provide an accurate particularisation of the disability claimed to be war-caused, it clearly contemplates that claims for pensions will be made referable to particular injuries or diseases (see, for example the Act, s14(5)) and the claim form itself is constructed so as to lead towards particularisation. In the present instance the applicant particularised with some precision in his claim form the disabilities which he said founded his claim. These were the disabilities in relation to which he required a decision to be made; these were the disabilities in relation to which the Secretary's investigation was to be - and in fact was - conducted; they set the boundaries to the claim which was the subject of the Commission's duties under the Act, s18(1); and importantly, for the purposes of the Act, s14(4), they constituted the subject matter of the claim in support of which the applicant was entitled to submit evidence at any time up to the determination of the claim. The claim in short was for a pension on account of incapacity resulting from three designated war-caused injuries or diseases. These were (1) back condition (3 crushed vertebrae); (2) osteoarthritis left hip; and (3) skin condition. The Commission in its decisions of 12 December and 30 March 1992 made determinations in relation to this claim. In so doing it has not been shown in my view to have failed in its duty under s18(1). The question as to whether the right shoulder injury was war-caused was not one in relation to which a decision was sought of, or was required to be given by, the Commission. And as I have noted no such decision was given in relation to that matter. What has been said here of the Commission and its decision applies equally to the Board in its affirmation of the Commission's decisions. Accordingly with the decisions as affirmed being limited to claims founded on the three designated disabilities, it was not open to the Tribunal, as it acknowledged itself, to determine the question whether or not the right shoulder injury was war-caused. In light of the agreement reached between the applicant and the Commission that the back and hip disabilities were war-caused and that the applicant was entitled to a pension, the Tribunal was required to assess the pension payable: the Act, ss19(3)(b) and 19(5). To this end, as I have noted, the Tribunal considered whether the applicant satisfied the three conditions of the Act s24(1) in which case he would have been entitled to a special rate of pension. As it was not open to the Tribunal to determine whether the right shoulder injury was itself war-caused, no question could arise as to the application to that injury of the "no reasonable hypothesis" test of the Act, s120 for the purpose of deciding whether it was so war-caused. Equally when the Tribunal determined whether the cause of the applicant's ceasing work was or was not a war-caused injury, it could not treat the shoulder injury for the purposes of s24 as if it were war-caused. In this the Tribunal properly followed the lead given in Banovich v Repatriation Commission (1986) 69 ALR 395. And there being evidence sufficient to satisfy the Tribunal on the balance of probabilities that the cause of the applicant's ceasing work was the right shoulder injury, the Tribunal was correct, in my view, in deciding that the applicant was not entitled to a special rate of pension. To avoid any misunderstanding as to what is being held here I would make the following observations which express my own conclusions as to the scheme of the Act and as to the place of s24 in it. 1. Section 24 presupposes that a determination has been made that an injury has been war-caused. Its concern in subsection (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. Such in my view has already been held by the Full Court of this Court on analogous provisions of the Repatriation Act 1920 in Banovich v Repatriation Commission (1986) 69 ALR 395. 2. Where it is suggested a new injury is war-caused because it is causally related to, or has been contributed to by, an already determined war-caused injury, it is open to a veteran to make a claim under the Act for a determination that that new injury is in fact war-caused with the terms of the Act, s9. In other words the legislative scheme itself allows for an injury causally related to a war-caused injury to be found to be a war-caused injury. It is noteworthy in the instant case as I have earlier indicated that the applicant has in fact made such a separate claim in respect of his right shoulder injury on 15 February 1993. In this way the Act permits a veteran to add to the available war-caused injuries of which account may be taken under s24. This may be of no little importance to a veteran where the second of two causally related injuries is the cause of the incapacity which prevents the veteran from undertaking the remunerative work that the veteran was undertaking. 3. The wording of s24(1)(c) in its reference to the veteran being prevented from continuing to undertake remunerative work "by reason of incapacity from that war-caused injury ... alone" likewise precludes a converse form of reasoning which would allow the effects of an injury which was not determined to be war-caused to be attributed wholly to an injury that was so determined merely because the two injuries could be shown to be causally related. For the purposes of s24(1)(c) the relevant incapacity is that of the injury determined to be war-caused alone and not that as well of any causally related but not war-caused determined injury. But as I have noted in 2 above it is open to a veteran to change the character of the relevant incapacity for the purposes of the subsection by securing a distinct determination that the causally related injury as well is war-caused. There were aspects of the applicants submissions to this Court which sought to use the form of reasoning mentioned in the preceding paragraph. For the reasons given therein I reject the use so sought to be made of s24. It is admittedly difficult to divine precisely the significance the Tribunal was attributing to its observation that: "There is no evidence which connects the right shoulder injury to the pre-existing back and hip injuries. I am not satisfied therefore that the right shoulder injury is a war-caused injury or disease." Given the repeated recognition in the reasons that the war-caused status of this injury has not been determined and was not capable of review by the Tribunal, and given the reference to, and the use made of, the Banovich decision, I do not consider that the above observation can appropriately be regarded as constituting a finding on the status of the shoulder injury in its own right. The respondent submitted that at best it should be seen as addressed to the question not whether the shoulder injury was a distinct injury which may in fact have been causally related to the back condition but rather whether it was in a diagnostic sense part of the back condition itself, and that it was this connection which was being rejected. It is not in my view profitable to speculate on the significance of this observation in isolation from the reasons as a whole. The penultimate paragraph of the reasons as well as earlier references make plain that for the purposes of the Tribunal's determination "the right shoulder injury has not been decided as war-caused". As I have indicated previously, the Tribunal in this appeal had no jurisdiction to come to a contrary view even if it were so minded to do. The reasons for decision in their entirety leave no room for doubt in my view that the Tribunal regarded the shoulder injury as not having been "decided as war-caused" and in consequence of this and of the significance it gave that injury in the applicant's loss of employment, the Tribunal's decision on the application of s24(1) in this instance is unimpeachable in this Court. Finally it should be noted that the applicant submitted that the requirements in the Act s119 that the Tribunal may inform itself in such manner as it thinks just and that it "shall act according to substantial justice and the substantial merit of the case", obliged the Tribunal to examine whether or not the shoulder injury was war-caused. Whatever these requirements of s119 may mean, they clearly cannot be used to extend the review jurisdiction of the Tribunal to matters which as a result of the Act and of the Administrative Appeals Tribunal Act 1975 it has no jurisdiction to review: see Kumar v Immigration Review Tribunal (1992) 36 FCR 544 at 555-556. As I have already held, the making of a determination as to whether the right shoulder injury was war-caused was not open to the Tribunal. I affirm the decision of the Tribunal. The appeal is dismissed with costs.

I certify that this and the preceding twenty (20) pages are a true copy of the Reasons for Judgment of The Honourable Justice P.D. Finn.

ATTACHMENT Counsel for the Applicant: Mr D. De Marchi Solicitor for the Applicant: De Marchi & Associates Counsel for the Respondent: Mr P.J. Hanks Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 26 July 1995