Callander and Repatriation Commission (Veterans' entitlements)

[2023] AATA 188

Callander and Repatriation Commission (Veterans' entitlements) [2023] AATA 188 (15 February 2023)

Division:VETERANS’ APPEALS DIVISION

File Number(s):      2021/4193

Re:Kevin Callander

APPLICANT

AndRepatriation Commission

RESPONDENT

Decision

Tribunal:Senior Member O'Donovan

Date:15 February 2023

Place:Canberra

The Tribunal dismisses the applicant’s interlocutory application filed on 21 January 2023.

…………………[sgd]………………..
Senior Member Damien O’Donovan

Catchwords

PRACTICE AND PROCEDURE – Veterans’ and Military Compensation – constraints upon the Tribunal’s ability to receive evidence – interlocutory application to limit the evidence before the Tribunal – Tribunal can have regard to evidence obtained after commencement of Tribunal proceedings

Legislation

Administrative Appeals Act 1975, s 25, 25(4A), 33(1)(a)
Australian Veterans’ Recognition (Putting Veterans and Their Families First) Act 2019, s 7(2), 7(2)(d)

Veterans’ Entitlements Act 1986, s 14, 15, 24(1)(aa), 24(1)(aab), 24(1)(a)(i), 24(1)(b), 24(1)(c), 24(2)(a), 24(2)(b)

Cases

Frugtniet v ASIC [2019] HCA 16
Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634

Secondary Materials

Repatriation Commission Guideline: M6882 Special Rate and Intermediate Rate of Pension, Genuinely Seeking Work
Repatriation Commission Guideline: CM7014 MRCC181 Guidelines for Psychiatric Compensation Claims

Repatriation Commission Guideline: CM6882 Attachment B The Work Capacity Test: Application of 24(1)b) and 28(a)

REASONS FOR DECISION

Senior Member O'Donovan

17 February 2023

1. This is an interlocutory application brought by the applicant, which seeks to limit the evidence to which the Tribunal will have regard in disposing of the substantive application.

2. The Tribunal’s power to make such a direction derives from at least two sources:

   (a)Section 33(1)(a) of the Administrative Appeals Tribunal Act 1975 (AAT Act) which relevantly provides that the procedure of the Tribunal is within the discretion of the Tribunal; and

   (b)Section 25(4A) of the AAT Act which relevantly provides that the Tribunal may determine the scope of the review of a decision by limiting the questions of fact, the evidence and the issues that it considers.

3. The specific directions sought by the applicant are as follows[1]:

   (a)The existing medical reports prepared for the respondent after the commencement of Tribunal proceedings will not be received into evidence, or relied upon; and

   (b)No further psychiatric or other medical opinion will be considered unless the respondent can satisfy the Tribunal that doing so would not conflict with the criteria in the Commission’s internal policy and the Australian Veterans’ Recognition (Putting Veterans and Their Families First) Act 2019 (AVRA) principles.

   [1] Kevin Callander, ‘Objection to Additional Medical Reports’, Submission in RE Callander and Repatriation Commission, AAT2021/4193, 20 January 2023, [23].

4. In the alternative, the applicant seeks a direction that if the Tribunal considers that a further psychiatric opinion is warranted, that the respondent inform the Tribunal and the applicant about the specific inadequacy of the current evidence and what additional evidence the respondent seeks.[2]

   [2] Ibid [24].

5. The applicant asks that rather than permitting the respondent to engage a further psychiatrist, that the respondent pays for Dr Adesanya (the applicant’s psychiatrist) to appear, or the Tribunal issues a summons for him to appear and give evidence.[3]

   [3] Ibid [25].

6. Before turning to the specific arguments raised by the applicant in support of these directions, it is appropriate to set out the factual and statutory framework which has led to the application for review.

   Facts

7. The decision under review was made on 14 May 2021.[4] The effect of the reviewable decision was that the applicant’s pension under the Veterans’ Entitlements Act 1986 (VEA) was continued at 100% of the General Rate of pension with effect from 27 April 2017 and increased to the Extreme Disablement Adjustment rate with effect from 20 January 2018. However, the applicant was found not to be entitled to the Special Rate of pension. The applicant contends that he is entitled to be paid the pension at the Special Rate.

   [4] T56.

8. In order to determine whether the applicant is entitled to the Special Rate of pension it is necessary to determine the following issues:[5]

   (a)Has the veteran made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of pension (section 24(1)(aa))? The answer to this question is an undisputed yes.[6]

   (b)Had the veteran not yet turned 65 when the application was made (section 24(1)(aab))? Again, the answer is an undisputed yes.[7]

   (c)Was the degree of incapacity of the veteran from war-caused injury and/or disease at least 70% (section 24(1)(a)(i))? The degree of incapacity has been determined at 100%. It is not currently in issue;[8]

   (d)Is the veteran totally and permanently incapacitated (section 24(1)(b))? – This requires that the veteran’s relevant incapacity[9] is of such a nature that, of itself alone, it renders the veteran incapable of undertaking remunerative work for periods of more than 8 hours per week. This is in issue in these proceedings.[10] In particular, the question of whether the applicant’s psychological conditions prevent him from working in sales and other non-physical but car related occupations is important;

   (e)Was the veteran, by reason of war-caused incapacity alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and thereby suffering a loss of earnings (section 24(1)(c))? This is in issue.[11] In particular, questions arise about whether the applicant will be taken to be excluded or included by related provisions which provide:

   (i)That the veteran won’t fall into this category if the veteran ceased to engage in remunerative work for reasons other than his or her incapacity from war caused injury or disease, or the veteran is incapacitated from engaging in remunerative work for some other reason (the excluding provision), section 24(2)(a));

   (ii)However, if a veteran who has not engaged in remunerative work prior to reaching the age of 65 satisfies the Tribunal that he has been genuinely seeking to engage in remunerative work and his relevant incapacity is the substantial cause of his inability to obtain remunerative work, the veteran will be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work (the ameliorating provision), section 24(2)(b).

   [5] All references to legislation in this section are references to the ‘Veteran’s Entitlements Act 1986’.

   [6] Repatriation Commission, ‘Statement of Issues, Facts and Contentions’, Submission in RE Callander and Repatriation Commission, AAT2021/4193, 30 November 2022.

   [7] Ibid.

   [8] T56 [19].

   [9] Incapacity that is relevant for the purposes of the statute is incapacity from war-caused injury or war-caused disease, or both.

   [10] Repatriation Commission (n 6) [5.2].

   [11] Ibid [5.3].

9. The applicant must satisfy the relevant requirements within the assessment period. This matter is complicated by the fact that the applicant has a wide variety of conditions, and the assessment period appears to be different depending on which war-caused injuries or diseases are the subject of consideration.

10. The assessment period appears to have commenced on 27 May 2017[12] in relation to the following injuries or diseases – sensorineural hearing loss and tinnitus, lumbar spondylosis, bilateral osteoarthritis of the acromioclavicular joints, bilateral rotator cuff syndrome, and fracture of left tibia and fibula. The assessment period appears to have commenced on 25 June 2019[13] in relation to major depressive disorder, morbid obesity, right knee osteoarthritis, and pulmonary embolism and cervical spondylosis.

    [12] Ibid [2.3].

    [13] Ibid [2.4].

11. Applying the provisions to the applicant’s circumstances is complicated.

12. At the start of 2014 at age 61, the applicant was running a business purchasing second-hand cars, repairing them himself and selling them. There was a significant physical component to the work as a mechanic, but the applicant also spent a significant amount of his time on the sales and business aspects of the business. These did not place physical demands on the applicant.

13. At some point in late 2014 the applicant sold his business. The reasons for him doing so will be determined when the matter comes on for a substantive hearing. He has not worked since. He did not secure remunerative employment after he sold that business, although there is evidence that he engaged with an employment services provider to seek it.[14]

    [14] T28.

14. In addition to his war-caused injuries and diseases, the applicant has a non-war-caused post-traumatic stress disorder. Its role in the sale of the business and the applicant’s failure to obtain work following its sale may be relevant to the issues which the Tribunal needs to resolve.

15. Accordingly medical evidence, concerning both psychological ailments and physical ailments will be relevant to the disposition of the matter.

16. In particular, it is necessary for the Tribunal to consider what the applicant’s work capacity has been during the assessment period/s and what role his various conditions played in the sale and closure of his business and his subsequent failure to obtain work. Whether he is totally and permanently incapacitated by his war-caused injuries and diseases is a live question which needs to be the subject of medical evidence.

17. Whether the applicant was prevented from undertaking remunerative employment by his incapacity from war-caused injury and disease is also a live question. Medical evidence about the applicant’s physical and mental injuries and diseases, and their impact on his work capacity and ability to obtain remunerative work will be relevant.

18. When the decision of the Veterans’ Review Board was made it had the benefit of medical reports from Associate Professor Kerin Fielding, an orthopaedic surgeon, a report from psychiatrist Dr Adesanya sought by the Department of Veterans’ Affairs and a number of other treating practitioners.[15]

    [15] T9, 11, 17, 21, 34, 35, 36, 41, 45, 54.

19. Since the application for review had been filed in the Tribunal, the applicant has filed and served the following primary reports:

    (a)A report by Occupational Physician Dr Banda addressing a range of issues (including the injuries which caused the applicant to close his business)[16] which was filed on 21 April 2022 as well as a supplementary report filed in November 2022;[17]

    (b)A number of reports from psychiatrist Dr Adesanya prepared during November 2022.[18]

    [16] Kevin Callander, ‘Report of Occupational Physician Dr M Banda’, Submission in RE Callander and Repatriation Commission, AAT2021/4193, 21 April 2022.

    [17] Kevin Callander, ‘Dr Banda’s Response’, Submission in RE Callander and Repatriation Commission, AAT2021/4193, 21 November 2022.

    [18] Kevin Callander, ‘Reports of Psychiatrist Dr Adesanya’, Submissions in RE Callander and Repatriation Commission, AAT2021/4193, November 2022.

20. The respondent has filed a report from occupational physician Dr Sabetghadam and has made an appointment for the applicant to be assessed by psychiatrist Dr Synnott. [19]

    [19] Repatriation Commission, ‘Report by Dr Sabetghadam’, Submission in RE Callander and Repatriation Commission, AAT2021/4193, 15 August 2022.

21. It is in the context of the upcoming appointment with Dr Synnott that the applicant seeks the procedural directions from the Tribunal, which would prevent the respondent from relying on the report of Dr Sabetghadam and excuse the applicant from attending the appointment with Dr Synott.

    The applicant’s contentions[20]

    [20] Callander (n 1) [22].

22. The applicant objects to the Tribunal receiving into evidence, or relying upon, medical reports prepared for the respondent after the commencement of Tribunal proceedings.

23. The objection is based on the requirement of the Tribunal to ‘stand in the shoes’ of the original decision maker. The applicant contends that to ‘stand in the shoes’ of the original decision maker, the Tribunal should have regard to, and effectively be constrained by, Commission policy which limits the gathering of evidence, and it should not take into account a consideration that is not available to the original decision maker.

24. The applicant also contends that the practice of respondents routinely seeking second medical opinions in response to evidence filed by the applicant, is contrary to Commission policy as the original decision maker is not able to order a second opinion without good cause and, even then, where medical evidence is inadequate or inconsistent, the first action should be to seek clarification from the original provider.

25. Finally, the applicant contends that medical evidence obtained by the respondent after the commencement of Tribunal proceedings (Dr Sabetghadam’s report) should not be received into evidence, except where evidence already before the Tribunal is not sufficient to meet the relevant standard of proof for the Applicant’s claims.

26. The applicant refers to a number of Repatriation Commission policies which are said to be relevant when delegates are deciding whether to investigate claims, and to the AVRA Act which the applicant contends makes clear that the Parliament expects decision makers to limit the gathering of evidence in determining veterans’ compensation claims.

27. I will deal with each of these contentions in turn.

    Standing in the shoes of the decision maker

28. The applicant’s first contention has no merit to the extent that it asserts that the Tribunal is constrained by procedural guidelines adopted by the respondent when making reviewable decisions. It has long been understood and recently re-iterated by the High Court in Frugtniet v ASIC[21] that the question for determination by the Tribunal on the review of an administrative decision under s 25 of the AAT Act is whether the decision is the correct or preferable decision. That question is required to be determined on the material before the AAT, not on the material that was before the original decision maker.[22] Further, the Parliament has made clear in section 33 that the Tribunal’s procedure is within the Tribunal’s discretion and how it informs itself is also a matter for the Tribunal. The notion that the Tribunal can be substantively constrained by the manner in which a respondent approaches its particular decision making process is contrary to the express provisions of section 33. The Frugtniet decision was concerned with a constraint that was imposed upon the decision-maker below, but it was not a voluntarily assumed one. The constraint which arose in that case had its origins in the statute which provided for the spent conviction scheme.

    [21] Frugtniet v ASIC [2019] HCA 16.

    [22] Ibid [14].

29. In those circumstances, it is impossible to expand the notion of ‘standing in the shoes of the decision maker’, a phrase which incidentally is not to be found in the AAT Act, to a point that requires the Tribunal to approach its task subject to constraints adopted voluntarily by the decisionmaker below. There is no authority which would support such an approach.

    Application of policy prevents obtaining further evidence without good cause

30. The applicant contends in the alternative, that Commission policy is such that the respondent, in the context of Tribunal proceedings, should not get second opinions without good cause and should at first instance get clarifying opinions from doctors who have already provided opinions rather than seeking new ones.

31. The applicant cites a number of Commission policies. The policies are all couched in terms which provide guidance to internal decision makers about how they should approach their task. They do not in my assessment engage with the Tribunal process and do not purport to constrain the way in which respondents should approach the task of providing assistance to the Tribunal. They do not constitute policies of the kind which Re Drake and Minister for Immigration and Ethnic Affairs (No.2)[23] counsels as being generally appropriate to follow unless there are cogent reasons to the contrary. The examples cited in the applicant’s submissions are largely mechanistic and shed no light on how the Tribunal should approach its review task, particularly in circumstances where the Parliament has given the Tribunal power to control its own procedures and inform itself as it sees fit.

    [23] Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634.

32. There is nothing in the cited guidelines which would justify imposing a high bar on the respondent before it is allowed to adduce evidence relevant to the issues to be determined by the Tribunal.

    The AVRA Act

33. Finally, the applicant contends that the passing of the AVRA Act is an unambiguous statement about how the Parliament expects decision makers to limit the gathering of evidence in determining veterans’ compensation claims. The applicant refers to section 7(2)(d). It provides

    The Commonwealth is committed to decision-makers deciding claims under that legislation [which includes a reference to the Veterans’ Entitlements Act 1986]:

    (a)       in a manner that is fair, just and consistent; and

    (b)       except under the MRC Act – within a time that is proportionate to the complexity of the matter; and

    (c)       in a manner that promotes public trust and confidence; and

    (d)       on the basis of only requiring evidence sufficient to meet the relevant standard of proof for the claims.

34. I do not agree with the submission that the provision identified is an attempt by Parliament to limit the gathering of evidence in determining veterans’ claims. The terms of the AVRA Act allow for informed judgment about when additional evidence is required. However I do consider that the AVRA Act at the very least encourages the respondent, and those that represent it, to consider whether the evidence which is already available is adequate to dispose of the matter, and if it is not, what is the minimum amount of additional evidence required to determine the questions raised.

35. What the appropriate response is to evidence that is filed in any given case will vary, but obtaining fresh evidence on questions, in circumstances where there is no reason to suspect that the existing evidence is not a proper basis on which to resolve the matter, is something which should only be done after careful consideration of the existing evidence as it stands and not as a matter of course. Equally, the Tribunal as a decision-maker under the relevant laws should take the same considered approach before permitting a respondent to pursue new evidence or evidence from an additional source.

36. On some occasions procedural fairness will require that the respondent be given a full opportunity to test the evidence brought forward by an applicant, by the obtaining of a new report from a new doctor – but that may not be a requirement in every case.

    Disposition of the matter

37. As should be clear from the discussion above, I am satisfied that I am not constrained by  the ‘standing in the shoes of the original decision maker’ principle, from looking at fresh evidence obtained by the respondent. On the contrary, when the Courts have elaborated on that principle, it has been made clear that when conducting a review, the Tribunal should have regard to new material which has become available.

38. Equally, I do not consider that any of the Guidelines referred to by the applicant in his submissions support the proposition that I should not allow the respondent to seek further medical evidence. The Guidelines are not binding on me and have nothing to say about how the question of additional evidence should be approached by the Tribunal. They assist internal decision making and do not purport to bind or constrain the Tribunal in any way.

1. I do however accept that the AVRA Act does have an impact on how the Tribunal should approach its procedural powers under the AAT Act.  Further evidence should only be sought by the respondent and admitted into evidence by the Tribunal after careful consideration of whether doing so is consistent with the goals enunciated in s7(2) of the AVRA Act. The Tribunal has the power to control its own procedures and where appropriate place a restraining hand on the diligence of the respondent in pursuing by fresh evidence on issues which have already been dealt with in a credible way in reports which are already available. Equally the Tribunal has the capacity to insist that the medical experts already relied upon by the applicant should be approached rather than fresh experts being brought in. In light of the AVRA Act, the Tribunal should give consideration to limiting the further investigations engaged in by the respondent if asked to do so by a veteran.

2. The question remains though, whether in the present case the Tribunal should restrain the respondent in that way.

3. In the current matter there are two pieces of evidence which could be affected by a direction. First, the report of Dr Sabetghadam which has already been prepared, and second, any report resulting from the appointment which has been made for the applicant to attend Dr Synnott on 20 February 2023.

4. In relation to Dr Sabetghadam I do not regard it as appropriate to exclude his report from consideration. The report was obtained to address a number of issues which are relevant to the questions which the Tribunal must decide. I am not obliged to exclude it by any rule of law, and it would in my view be inappropriate for me to reject a report which is available to me and includes information relevant to the disposition of the case.

5. In relation to the appointment which has been arranged for a further psychiatric review of the applicant, in the present case I am satisfied that there is every reason to expect that the report will assist the Tribunal in discharging its review function. The role that the applicant’s war-caused psychiatric conditions played in preventing him from continuing to work and from obtaining work after he sold the business are central to the assessments required by paragraphs 24(1)(b) and (c) of the VEA. I am confident that I will be assisted by a further psychiatric review where the psychiatrist has available a fully documented medical history.

6. I also consider that it is appropriate to obtain that opinion from a new psychiatrist. Dr Adesanya has produced a number of reports which are inconsistent with each other in ways which indicate to me that I will be assisted by a further opinion from a different psychiatrist.  

7. In those circumstances, I am satisfied that the introduction of a new psychiatrist considering the case afresh, in circumstances where the issues are much better defined, is likely to result in a report which will be of assistance to the Tribunal.

8. In the present circumstances I am not prepared to make the directions which the applicant seeks and exclude the reports which have been, and will be obtained, by the respondent. Nor do I consider it appropriate to require the respondent to advise the Tribunal and the applicant about any specific inadequacy of the current evidence. I am satisfied that the Tribunal will benefit from the report of a psychiatrist briefed with the summonsed material which has been provided to the Tribunal and which addresses the issues which I have identified as live issues in these proceedings. I am also satisfied that given that Dr Adesanya produced two materially different reports in November 2022 without there being any material change in the evidence available to him, it is appropriate to approach another psychiatrist.

9. Consequently, I dismiss the application.

I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Damien O’Donovan.

...........................[sgd].............................................

Associate

Dated: 17 February 2023

On the Papers
Date final submissions received:	10 February 2023
Representative for the Applicant:	Mr R Dunn, Veterans Support Centre
Representative for the Respondent:	Mr L Woolley, Sparke Helmore Lawyers