Brettell and Repatriation Commission

[2005] AATA 631

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 631

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/47

VETERANS’ APPEALS DIVISION		)
Re		GAIL BRETTELL

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr KS Levy, Member

Date1 July 2005   

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

...................[Sgd]............................

KS Levy
  Member

CATCHWORDS

VETERANS’ AFFAIRS – Temporary Incapacity Allowance – Lumbar Spondylosis – “war-caused injuries” – statutory time period expired – decision under review affirmed

Veterans’ Entitlements Act 1986 ss 68(1), 96(1), 107, 111, 112

Scott v FCT (1966) 117 CLR 514
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 60 ALR 509
Re Sarina: Ex parte Wollondilly Shire Council (1980) 32 ALR 596
Maxwell v Murphy (1957) 96 CLR 261

REASONS FOR DECISION

1 July 2005 Dr KS Levy, Member          

1. This is an application under section 29(1) of the Administrative Appeals Tribunal Act 1975 to review a decision of the delegate of the Repatriation Commission dated 19 November 2004, whereby a decision to refuse payment of temporary incapacity allowance for the period 1 July 1999 to 20 February 2000 was affirmed. That decision was made under sections 107 and 112 of the Veterans’ Entitlements Act 1986 (“the Act”).

Background

2.      The applicant is a 44 year old veteran who served in the Royal Australian Army from 29 October 1979 to 5 July 1993.  She had approximately 14 years service with the Royal Australian Army Ordinance Corps. She currently has accepted disabilities of depressive disorder, asthma and lumbar spondylosis.

3.      The applicant asserts that she claimed for recognition of the condition of lumbar spondylosis on 22 September 1988 but was refused.  This was reviewed by the Veterans’ Review Board on 24 August 2001.  The Board decided that while a claim for asthma was accepted and she was granted pension at 70% of the general rate, her claim for lumbar spondylosis was again refused.

4.      On 4 May 2004, the veteran’s claim for lumbar spondylosis was accepted by the Administrative Appeals Tribunal with effect from 22 June 1998 and the applicant was granted 100% of the general rate of pension from that date.  She was also granted a pension at the Total and Temporary Incapacity rate with effect from 16 March 2002 to 30 June 2006.  That allowance was effective from the date she ceased work.

5.      Following the decision by this Tribunal on 4 May 2004, the applicant applied for Temporary Incapacity Allowance on 26 May 2004.  That application related to the period 1 July 1999 to 20 February 2000.  That application was refused by a delegate of the Repatriation Commission on 23 June 2004.  A subsequent appeal of that decision was made to the Veterans’ Review Board on 6 September 2004 and that appeal was also refused on 19 November 2004.  It is from that decision that the applicant appealed to this Tribunal, and that appeal was lodged on 24 January 2005.

6.      This matter has been decided on the papers as a result of agreement between the parties.

Issues

7. The issue in this matter is whether the application for Temporary Incapacity Allowance is valid under section 107(1) of the Act. That is, the validity of the application depends on whether the time limits specified in section 112 of the Act are mandatory.

Legislation

8. The following provisions of the Act are relevant to determination of this matter.

“107     Temporary incapacity allowance

(1)The Commission may grant an allowance, called temporary incapacity allowance, to a veteran who is admitted to a hospital or other institution for treatment in respect of a war-caused injury or a war-caused disease if the conditions specified in subsection (2) are fulfilled in relation to the incapacity of the veteran.

(2)The conditions referred to in subsection (1) in relation to an incapacity of a veteran from a war-caused injury or a war-caused disease are:

(a)that the veteran has undergone treatment for the incapacity as an inpatient of a hospital or other institution;

(b)that, for a continuous period in excess of 4 weeks (being a period commencing on the date on which the veteran was admitted to that hospital or other institution for treatment for that incapacity), the veteran has undergone treatment for that incapacity either as an inpatient of, or after discharge from, that hospital or other institution or has undergone rest and recuperation, after the completion of that treatment, on the recommendation of a medical practitioner; and

(c)that, by reason of that treatment, or of that treatment and that rest and recuperation, the veteran was incapable, during a period (in this section referred to as the relevant period applicable to the incapacity), being the whole or part of the continuous period referred to in paragraph (b), of continuing to undertake remunerative work that the veteran would have continued to undertake but for that treatment or that treatment and that rest and recuperation, as the case may be.

(3)The condition specified in paragraph (2)(c) shall be taken not to have been fulfilled in relation to the incapacity of a veteran during any part of the relevant period applicable to the incapacity during which the veteran was capable of undertaking remunerative work for periods aggregating more than 8 hours per week, being work that the veteran would have continued to undertake but for the treatment, or the treatment and the rest and recuperation, as the case may be.

…..

111      Application

(2)       An application for a benefit to which this section applies:

(a)       shall be in accordance with a form approved by the Commission;

(b)shall be accompanied by such certificates and other evidence (relevant to the applicant’s entitlement to the benefit) as are required to be furnished by this Act, the regulations or the form of application; and

(c)is to be lodged at an office of the Department in Australia in accordance with section 5T and is taken to have been made on a day determined under that section.

112 Time for applying for certain benefits

(1)An application for temporary incapacity allowance in respect of a veteran’s incapacity from a war-caused injury or a war-caused disease shall be made within 12 months after the commencement of the period that is the relevant period applicable to the incapacity for the purposes of section 107.

(2)An application for loss of earnings allowance for a period in respect of which a person has suffered a loss of salary or wages, or loss of earnings on his or her own account, as set out in subsection 108(2), (3), (4) or (5), shall be made within 12 months after the commencement of that period.

…..

(4)       An application made to the Commission for the grant of:

(a)       temporary incapacity allowance;

(b)       loss of earnings allowance; or

(c)       travelling expenses;

after the expiration of the period applicable to the application by virtue of subsection (1), (2) or (3), as the case requires, is of no force or effect.”

Evidence

9. The following documentary evidence was available to the Tribunal – documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” Documents). In particular, the report of Dr Wilde, Orthopaedic Surgeon dated 12 September 1999 (T6), the report of Dr McEvoy concerning the applicant’s asthma condition (“T” Documents Folio 12) and the report by Occupational Therapist, Ms Leigh Shaw dated 16 February 2004 (“T” Documents Folio 18) were significant.

10.     Dr Wilde’s report was made two months after he performed surgery of lumbar fusion on the applicant’s spine.  His report at that time was that the applicant had a very positive approach to her condition and that she should gain considerably from the surgery.  He thought the prognosis was good, although her personal and work activities might need to be modified to avoid further deterioration.  At the time of his report, his view was that Ms Brettel should be able to return to work about 12 months following the surgery.  She was employed as a teacher of Adult Accounting Programs at a TAFE College.

11.     Dr McEvoy’s report refers to her asthma condition and that it was unlikely to subside completely.  He thought it was a lifelong condition as she had had it since she was a child and was certainly evident shortly after she joined the Army.  He mentioned that she had smoked at about 14 years of age and again from age 19 to 24.  She then smoked intermittently until about 2002.

12.     The report by the Occupational Therapist presents a picture of serious deterioration since the surgery in 1999.  It appears she now has severe back pain and is unable to perform many of the normal activities of daily living.  She requires assistance with personal care such as dressing and showering and needs a carer to attend to many homemaking tasks.  She was able to perform some sedentary activities such as preparing vegetables, watching television and reading.  She spends up to 20 hours per day in bed.  She also has difficulties with bladder control and requires significant support for many of her daily activities.

13.     The applicant also claims that she had previously submitted a claim for Temporary Incapacity Allowance, which she states was refused as lumbar spondylosis had not been accepted.  This previous application was made in 2000. However, the respondent argued that this appears to be incorrect as no record can be found of any such application.

Submissions Of The Parties

14. The applicant submits that she should be entitled to Temporary Incapacity Allowance in accordance with section 107(1) of the Act despite being out of time as required by section 112(1) of the Act. However, she claims that her condition was rejected a number of times and was finally accepted when a determination was made by this Tribunal in May 2004.

15.     The applicant also claims that she did make application previously for Temporary Incapacity Allowance but that it was refused because the claim for lumbar spondylosis had been refused at that time.  By telephone directions hearing on 23 June 2005, the matter of a possible previous application was pursued with the parties.  The applicant’s advocate advised that she lodged the application in the Melbourne Office but he cannot find a copy of her application.

16.     The Department disputes that fact as it has no record of such an application by the applicant.  The respondent’s advocate advised that a national computer system has been in operation in the Department since 1998 and even if the file was deficient, a record of receipt of the application should be evident.  No such application is recorded.

17. The respondent submits that the applicant is precluded by legislation from succeeding with this application. It argues that the applicant was hospitalised on 5 July 1999 and therefore by virtue of section 112(1) of the Act the application must be lodged within 12 months of that date i.e. by 5 July 2000. The respondent therefore says that the applicant is approximately 4 years out of time. It acknowledged that the applicant’s condition was only accepted in 2004 and that the applicant is then in a difficult position. However, the respondent states that the proper procedure would have been to apply for Temporary Incapacity Allowance within the 12 month timeframe and then request deferral of a decision about that application until the application in relation to lumbar spondylosis was determined. The respondent further says that as this did not occur, the original application is invalid and cannot be rectified.

Findings Of Fact

18.     The following findings of fact are made:

(a)The original application was lodged with the Department of Veteran’s Affairs on 26 May 2004.  This application was rejected on 23 June 2004.  An appeal to the Repatriation Commission was also rejected 19 November 2004.

(b)An application to review those decisions was lodged with the Administrative Appeals Tribunal on 24 January 2005.

(c)The requirements of Regulation 7 in terms of eligibility to apply are satisfied, with respect to the period of inability to work and hospitalisation in excess of 4 weeks.

(d)An application was not made within the statutory 12 month period.  The application was not made until 26 May 2004, well over 4 years after the period relevant to the application for Temporary Incapacity Allowance.

Consideration

19.     The Tribunal has considered all of the written evidence as well as statutory and case law material relevant to this matter in determining the correct or preferable decision.

20. Section 107(1) of the Act specifies that Temporary Incapacity Allowance is relevant for an applicant with “war-caused injuries”. While it is not evident that the applicant has had operational service, it is clear that she has eligible service under section 68(1) of the Act and under section 96(1) of the Act. This refers to allowances such as Temporary Incapacity Allowance and that service persons who have rendered continuous service as defined in section 68(1) of the Act will satisfy the requirements to an applicant under Part VI. Also, section 96(2)(b) of the Act specified that “war-caused” injuries shall be read as a reference to “defence-caused” injuries. Therefore, the applicant appears to fall within the requirements of section 107(1) of the Act.

21. At a telephone directions hearing on 23 June 2005, the respondent urged that the only for determination is the resolution of the jurisdictional question under section 112 of the Act.

22. Temporary Incapacity Allowance is an allowance designed for veterans who are unable to work for relatively short periods but with a minimum period of 4 weeks. There must also be a period of hospitalisation and a medical certificate must be produced (Regulation 7). The applicant appears to have satisfied these requirements. The allowance, where paid, is to be at the special rate of pension and where the veteran already receives a disability pension, it must not exceed the amount payable to a special rate pensioner (section 107(5) of the Act). Also, if a disability pension is increased, either while the allowance is being paid or later if backdated, any amount exceeding that of the special rate of pension is recoverable by the Commission or by the Commonwealth (see section 107(8) of the Act).

23. In relation to the fundamental question, therefore, of whether the applicant is entitled to claim Temporary Incapacity Allowance under section 107(1) of the Act, she is faced with the major impediment in section 112(1) of the Act. That impediment relates to the question of timing and specifies the mandatory time period within which the application must be made as being 12 months from the commencement of hospitalisation. This has been declared by the applicant to be 5 July 1999 and is referred to in Dr Wilde’s report as being 11 July 1999. In any event, the application has technically been made well outside the statutory time period. There is no evidence to accept that an earlier claim was submitted as put by the applicant.

24.     It must be determined whether this provision is to be read as being a mandatory provision or whether some discretion is possible in the present circumstances.  On the face of it, it seems that as the condition of lumbar spondylosis was not accepted until 2004, it seems a harsh application of the statutory provision that she is then precluded from applying.  While she claims that she had previously applied in 2000, there is no evidence to support that.

25. When considering the rights of the applicant which are affected, it is noted that various provisions in section 111 of the Act use the discretionary word “may” (see sections 111(4) and (6) of the Act). Section 112 of the Act, however, indicates a mandatory requirement as it uses the term “shall” in sections 112(1) and (2) of the Act. The fact that the legislature has chosen to use both mandatory and directory provisions within Division Three, it must be assumed that the legislature did not intend that the choice of language was meaningless. The ordinary rules of statutory interpretation should therefore apply to the application of these words in sections 111 and 112.

26. In considering the interpretation to be placed on the word “shall” in section 112(1) of the Act, the Tribunal must consider that provision in the context of the Act as a whole. This approach has been maintained by the Courts for a very long time (see Scott v FCT (1966) 117 CLR 514 at 524 per Windemeyer J). It was also upheld by Mason J in the High Court of Australia in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 60 ALR 509 at 514:

“…..to read the Section in isolation from the enactment of which it forms a part, is to offend against the cardinal rule of statutory interpretation that requires the words of a statute to be read in their context….”

27. In considering the words of section 112 of the Act in context with other parts of the Act, the question of whether “may” or “shall” appears with any particular emphasis will be a relevant matter (Re Sarina: Ex parte Wollondilly Shire Council (1980) 32 ALR 596 at 600). Also, a person’s rights and remedies can be inextricably connected by the wording used in a statute. In such a case, any remedy available to an applicant might also affect a person’s rights and therefore would not be regarded as merely procedural. In the case of Maxwell v Murphy (1957) 96 CLR 261, the High Court held that a statutory provision may also provide the only remedy by which a right can be enforced. Where a right is conditional upon an action being brought within the time specified, upon the expiry of that time, the right will be lost.

28. In this case, I have interpreted section 112(1) of the Act to be a mandatory provision. This is an application of the reasoning of the High Court in Maxwell v Murphy (supra). The legislative intention is also confirmed by section 112(4) which provides that an application made outside that statutory time period is of no force and effect.

29. As the wording of section 112(1) of the Act is a mandatory requirement, the application has not satisfied the statutory requirements. Therefore, the application must fail.

30.     Consequently, the Tribunal affirms the decision under review.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, Member

Signed:         Denise Burton
  Administrative Assistant

Hearing on the Papers
Date of Decision  1 July 2005        
For the Applicant  Mr J Smith, Advocate, Pine Rivers RSL
For the Respondent                  Mr M Smith, Departmental Advocate