Barry Anderson and Military Rehabilitation and Compensation Commission
[2013] AATA 360
[2013] AATA 360
Division VETERANS' APPEALS DIVISION File Number
2012/4520
Re
Barry Anderson
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Date 31 May 2013 Place Perth The decision under review is affirmed.
................[sgd]........................................................
S D Hotop, Deputy President
CATCHWORDS
COMPENSATION – applicant served in Royal Australian Navy ("RAN") from 1988 to 2011 – applicant claimed compensation for obstructive sleep apnoea ("disease") contracted in 2010 – disease related solely to incident which occurred in course of RAN service in April 1988 – applicant's claim disallowed – Military Rehabilitation and Compensation Act 2004 does not apply to disease – decision under review affirmed
LEGISLATION
Military Rehabilitation and Compensation Act 2004 (Cth), s 5(1) and s 6(1)
Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 (Cth), s 4, s 5(1) and s 7
REASONS FOR DECISION
Deputy President S D Hotop
31 May 2013
Introduction
Barry Anderson (“the applicant”) enlisted in the Royal Australian Navy (“RAN”) on 8 January 1988 and was a serving member of the RAN from that date until 1 August 2011.
On 31 May 2011 the applicant lodged with the Department of Veterans’ Affairs a claim for acceptance of liability under the Military Rehabilitation and Compensation Act 2004 (Cth) (“MRC Act”) for a condition described as “obstructive sleep apnoea”.
On 29 August 2011 a delegate of the Military Rehabilitation and Compensation Commission (“the respondent”) made a determination disallowing the applicant’s claim. That determination was, following a request by the applicant for a reconsideration, confirmed by another delegate of the respondent on 20 August 2012.
On 10 October 2012 the applicant lodged with the Tribunal an application for review of the decision of 20 August 2012.
The Evidence
The evidence before the Tribunal comprised:
·the “T Documents” (T1–T37, pp 1–494) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
·extract from the Second Reading Speech of the Minister for Veterans’ Affairs on the introduction of the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Bill 2003 in the House of Representatives on 4 December 2003 (Exhibit A1);
·letter from the respondent’s solicitors to the applicant’s solicitors, dated 29 November 2012 (Exhibit R1);
·extract from the House of Representatives Explanatory Memorandum relating to the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Bill 2003 (Exhibit R2);
·extract from the Official Hansard of the proceedings of the Senate on 1 March 2004 regarding the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Bill 2003 (Exhibit R3); and
·extract from Bills Digest No 112 2003–04, Information and Research Services, Parliamentary Library, regarding the Military Rehabilitation and Compensation Bill 2003 (Exhibit R4).
The Agreed Facts
The following facts are agreed between the parties and are found by the Tribunal on the basis of the T Documents.
The applicant was a serving member of the RAN from 8 January 1988 to 1 August 2011.
On 25 April 1988 the applicant attended a function in the course of his service with the RAN.
At that function another serving member of the RAN punched the applicant several times about the head and face and directly on the nose at least once whereby the applicant suffered an injury particulars of which are as follows:
·swelling and bleeding of the soft tissues of the nose;
·broken nose;
·deviated septum.
The swelling and bleeding of the applicant’s nose subsided but the deviated septum persisted.
The applicant began to experience symptoms of obstructive sleep apnoea in late 2006 (when he was rendering “warlike service” within the meaning of the MRC Act), particulars of those symptoms comprising:
·poor concentration and impaired memory;
·excessive afternoon tiredness;
·headaches;
·severe snoring with arousals from sleep.
Those symptoms persisted and were first diagnosed as obstructive sleep apnoea on or about 23 February 2010.
The Issue
The sole issue for the Tribunal’s determination in this proceeding is whether the MRC Act applies to the applicant’s condition of obstructive sleep apnoea, the subject of his abovementioned claim for acceptance of liability under the MRC Act.
The Relevant Legislation
The abovementioned issue falls for determination in accordance with the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 (Cth) (“Transitional Provisions Act”).
The relevant provisions of the Transitional Provisions Act are as follows:
“ 4 Definitions
(1) In this Act:
commencement date means the date on which section 3 of the Military Rehabilitation and Compensation Act 2004 commences.
MRCA means the Military Rehabilitation and Compensation Act 2004.
old injury or disease has the meaning given by section 13.
relates to defence service has the meaning given by section 5.
SRCA means the Safety, Rehabilitation and Compensation Act 1988.
VEA means the Veterans’ Entitlements Act 1986.
(2) Expressions used in this Act that are defined in the MRCA have the same meanings as they have in that Act.
5 Definition of relates to defence service
Definition of relates to defence service for injuries, diseases and deaths
(1) For the purposes of this Act, an injury, disease or death relates to defence service rendered by a person if:
(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
(c)it resulted from an accident that occurred while the person was travelling, while rendering that service but otherwise than in the course of duty, on a journey:
(i)to a place for the purpose of performing duty; or
(ii)away from a place of duty upon having ceased to perform duty; or
(d)in the case of an injury – it resulted from an accident that 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; or
(e) in the case of 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; or
(f)in the case of a death of a person—it was due to an accident that would not have occurred, or to a disease that would not have been contracted:
(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.
…
7 Application of the MRCA to certain injuries, diseases and deaths
(1) The MRCA applies to a person’s injury, disease or death if:
(a)the injury is sustained, the disease is contracted, or the death occurs, on or after the commencement date; and
(b)the injury, disease or death either:
(i)relates to defence service rendered by the person on or after that date; or
(ii)relates to defence service rendered by the person before, and on or after, that date.
Note:After the commencement date, benefits stop being provided under the VEA and the SRCA for such injuries, diseases and deaths (see sections 9A and 70A of the VEA and section 4AA of the SRCA).
…
(3) To avoid doubt, defence service is rendered before, and on or after, the commencement date whether the service spans the commencement date or is rendered during separate periods before and on or after that date.”
Section 5(1) of the MRC Act includes the following relevant definitions:
“ 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:
(i) the normal physiological state; or
(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, the effect of 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:
(a) a disease; or
(b) the aggravation of a physical or mental injury.”
The phrase “defence service” is defined in s 6(1)(d) of the MRC Act to mean “warlike service, non-warlike service or peacetime service”. Each of those kinds of service is also defined in s 6(1) – see paras (a), (b) and (c), respectively, of s 6(1).
Analysis
For the purposes of s 7(1) of the Transitional Provisions Act:
·the “commencement date” is 1 July 2004;
·the Tribunal finds that the applicant’s obstructive sleep apnoea is a “disease” (as defined in s 5(1) of the MRC Act) which was contracted by him after 1 July 2004 – more specifically, on or about 23 February 2010;
·the Tribunal finds that the applicant rendered “defence service” from 8 January 1988 to 1 August 2011.
Accordingly, s 7(1)(a) of the Transitional Provisions Act is satisfied.
The critical question for the Tribunal’s determination is, therefore, whether the applicant’s obstructive sleep apnoea:
·“relates to defence service rendered by [him] on or after” 1 July 2004 (within the meaning of s 7(1)(b)(i) of the Transitional Provisions Act); or
·“relates to defence service rendered by [him] before, and on or after,” 1 July 2004 (within the meaning of s 7(1)(b)(ii) of the Transitional Provisions Act).
The applicant’s submissions
The applicant’s oral submissions, which were both extensive and complex, may, in the Tribunal’s opinion, be reduced to the following essential propositions:
·the test of causation prescribed by s 5(1) of the Transitional Provisions Act relates to the whole of the “defence service” (as defined in s 6(1)(d) of the MRC Act) rendered by a person, not only to “defence service” rendered after 1 July 2004;
·the word “and” in s 7(1)(b)(ii) of the Transitional Provisions Act should be interpreted disjunctively such that, pursuant to s 7(1) of that Act, the MRC Act applies to each of:
- an injury or a disease sustained or contracted on or after 1 July 2004 which “relates to defence service” rendered before 1 July 2004;
- an injury or a disease sustained or contracted on or after 1 July 2004 which “relates to defence service” rendered on 1 July 2004;
- an injury or a disease sustained or contracted on or after 1 July 2004 which “relates to defence service” rendered after 1 July 2004.
The applicant submitted that he rendered “defence service” from 8 January 1988 to 1 August 2011, that the relevant disease, namely, obstructive sleep apnoea, was contracted by him on or about 23 February 2010, and that that disease “relates to” (within the meaning of paras (a), (b), and (e) of s 5(1) of the Transitional Provisions Act) defence service rendered by him – specifically, an incident which occurred in the course of his defence service on 25 April 1988. Accordingly, he submitted, the MRC Act applies to that disease, pursuant to para (a) and subpara (b)(ii) of s 7(1) of the Transitional Provisions Act.
The respondent’s submissions
The respondent submitted that the word “and” in s 7(1)(b)(ii) of the Transitional Provisions Act should be interpreted conjunctively in accordance with its ordinary meaning such that, pursuant to s 7(1) of that Act, the MRC Act applies to each of:
·an injury or a disease sustained or contracted on or after 1 July 2004 which “relates to defence service” rendered on or after 1 July 2004;
·an injury or a disease sustained or contracted on or after 1 July 2004 which “relates to defence service” rendered “before, and on or after,” 1 July 2004;
but not to:
·an injury or a disease sustained or contracted on or after 1 July 2004 which “relates to defence service” rendered solely before 1 July 2004.
The respondent submitted, therefore, that para (b) of s 7(1) of the Transitional Provisions Act was not satisfied in the applicant’s case and that, accordingly, pursuant to s 7(1), the MRC Act does not apply to the disease, namely, obstructive sleep apnoea, contracted by him in 2010.
Consideration
The Tribunal accepts the respondent’s submissions, and does not accept the applicant’s submissions, for the following reasons.
In the Tribunal’s opinion, the terms of s 7(1) – and, in particular, subpara (b)(ii) – of the Transitional Provisions Act are plain and unambiguous in their meaning. The plain and unambiguous meaning of those terms is that (relevantly) a disease which is contracted on or after 1 July 2004 will fall within the provisions of the MRC Act only if it:
·“relates to” (within the meaning of s 5(1) of the Transitional Provisions Act) defence service rendered by the person “on or after” 1 July 2004 (subpara (b)(i)); or
·“relates to” defence service rendered by the person “before, and on or after,” 1 July 2004 (subpara (b)(ii)) (emphasis added).
In the Tribunal’s opinion, the context in which the word “and” appears in subpara (b)(ii) of s 7(1) of the Transitional Provisions Act confirms that that word should be interpreted conjunctively, and not disjunctively, because if it were interpreted disjunctively the effect would be that subpara (b)(ii) would refer to defence service rendered before, or on, or after 1 July 2004, thereby rendering subpara (b)(i) superfluous. Accordingly, the Tribunal is of the opinion that the word “and” in subpara (b)(ii) was intended by the legislature to be, and should be, interpreted conjunctively in accordance with its ordinary meaning such that that subparagraph will be satisfied only if the relevant disease contracted on or after 1 July 2004 “relates to” defence service rendered by the person both “before” and “on or after” 1 July 2004, whether that service is continuous service which “spans” 1 July 2004 or is rendered “during separate periods before and on or after” 1 July 2004 (see s 7(3) of the Transitional Provisions Act).
Because of the Tribunal’s view that the language of s 7(1) – in particular, subpara (b)(ii) – of the Transitional Provisions Act is itself plain and unambiguous in its meaning, the Tribunal has not found it necessary or appropriate to have regard to the various provisions of other statutes, namely, the MRC Act (other than ss 5(1) and 6 (1) referred to above), the Veterans’ Entitlements Act 1986 (Cth) and the Safety, Rehabilitation and Compensation Act 1988 (Cth) (to which the applicant referred extensively in his oral submissions), or the “extrinsic material” contained in Exhibits A1 and R2–R4 referred to in paragraph 5 above (see s 15AB of the Acts Interpretation Act 1901 (Cth)), or, indeed, any other principle of statutory interpretation.
In the present case, it is common ground that the only incident, in the course of the applicant’s entire defence service, which the relevant disease, namely, obstructive sleep apnoea contracted by him in 2010, resulted from, or which it arose out of, or which it was attributable to, or but for which it would not have occurred (see paras (a), (b) and (e) of s 5(1) of the Transitional Provisions Act) was his being punched on the nose on 25 April 1988 (see paragraphs 8–9 above). There is, furthermore, no evidence before the Tribunal that that disease “relates to” (within the meaning of s 5(1) of the Transitional Provisions Act) any incident, occurrence or aspect of the applicant’s defence service on or after 1 July 2004. The applicant did not contend otherwise.
Accordingly, the Tribunal finds that, although the relevant disease, namely, obstructive sleep apnoea, was contracted by the applicant after 1 July 2004 (thereby satisfying para (a) of s 7(1) of the Transitional Provisions Act), that disease neither “relates to defence service rendered by [him] on or after” 1 July 2004 (within the meaning of subpara (b)(i) of s 7(1)) nor “relates to defence service rendered by [him] before, and on or after,” 1 July 2004 (within the meaning of subpara (b)(ii) of s 7(1)).
The Tribunal concludes, therefore, that s 7(1) of the Transitional Provisions Act is not satisfied in this case. The Tribunal notes, furthermore, that no basis, other than s 7(1) of that Act, on which the MRC Act might apply to the applicant’s obstructive sleep apnoea has been suggested or is apparent.
The Tribunal accordingly determines that the MRC Act does not apply to the applicant’s disease, namely, obstructive sleep apnoea, contracted by him on or about 23 February 2010. For that reason the applicant’s claim for acceptance of liability under the MRC Act for that disease must be disallowed.
Decision
For the above reasons the decision under review is affirmed.
I certify that the preceding 32 (thirty -two) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop. ...................[sgd D Brodie].....................................................
Administrative Assistant
Dated 31 May 2013
Date of hearing 3 April 2013 Representative of the Applicant Ms R Sorgiovanni Solicitors for the Applicant Sorgiovanni Legal Counsel for the Respondent Mr C Clark Solicitors for the Respondent Spark Helmore
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