Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Emery

[1993] FCA 981

THOMAS HENRY RAISBECK v. REPATRIATION COMMISSION
No. QG108 of 1993
FED No. 981/93
Number of pages - 6
Administrative Law - Defence Forces

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
SPENDER J

CATCHWORDS

Administrative Law - Administrative Appeals Tribunal (Cth) - appeals to Federal Court.

Defence Forces - ex-servicemen (veterans) - pensions, allowances and other benefits - assessment of benefits - general rate - extreme disablement adjustment rate - whether veteran's incapacity for purposes of gaining extreme disablement adjustment rate must be attributable exclusively to war-caused injury and/or war-caused disease.

Veterans' Entitlements Act (Cth) 1986 ss. 13, 21A, 22 and 29.

HEARING

BRISBANE, 19 October 1993

#DATE 17:12:1993

Counsel for the appellant: Mr M. P. Amerena

Instructed by: Charlton Muller and Jones

Counsel for the respondent: Mr S. L. Doyle

Instructed by: Australian Government Solicitor

ORDER

The Court orders that:

(a) the appeal be dismissed;

(b) the applicant pay the respondent's costs of the appeal, to be taxed if not agreed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

SPENDER J This is an appeal pursuant to s. 44 of the Administrative Appeals Tribunal Act 1975 from a decision of the Administrative Appeals Tribunal (constituted by Senior Member Mr D. W. Muller) who, on 11 June 1993 affirmed a decision of a delegate of the Repatriation Commission dated 21 May 1991 to reject a claim by Mr Thomas Henry Raisbeck for disability pension at a rate higher than 100%.

1. The appeal raises a short point as to the proper construction of s. 22(4)(c) of the Veterans' Entitlements Act 1986 (the "V. E. Act").

2. The facts were not in dispute before the Tribunal nor before me. Mr Raisbeck, a veteran, suffers from a number of injuries, ailments and diseases, some of which arise out of war-caused injuries and diseases and some do not. Mr Raisbeck is severely disabled by his war-caused injuries. He has been in receipt of disability pension at 100% of the General Rate since 3 January 1972. He does not qualify for the higher rates of pension relating to loss of income earning capacity due to war-caused injuries alone, that is to say, the Intermediate Rate or the Special Rate, which are the subject of ss. 23, 24, and 25 of the V. E Act.

3. The question on the appeal is whether Mr Raisbeck qualifies for the extreme disablement adjustment which would bring his pension to 150% of the General Rate.

4. The legislation relevant to the appeal is contained in Part II of the V. E. Act which relevantly, but including headnotes, provides as follows:
   

"PART II - PENSIONS, OTHER THAN SERVICE PENSIONS, FOR VETERANS AND THEIR DEPENDANTS Division 1 - Interpretation

Interpretation

12. In this Part, unless the contrary intention appears: "pension" means a pension under this Part. Division 2 - Eligibility for Pension Eligibility for pension

13.(1) Where -

(a) ...

(b) a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is, subject to this Act, liable to pay:

(c) ...

(d) in the case of the incapacity of the veteran - pension by way of compensation to the veteran, in accordance with this Act.

Division 4 - Rates of pensions payable to veterans Determination of degree of incapacity 21A. (1) The Commission shall, subject to subsections (2) and (3), determine the degree of incapacity of a veteran from war-caused injury or war-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% or a multiple of 10%, but not exceeding 100%.

(3) ...

General rate of pension and extreme disablement adjustment

22. (1) This section applies to a veteran who is being paid, or is eligible to be paid, a pension under this Part, other than a veteran to whom section 23, 24 or 25 applies.

(2) Subject to this Division, the rate at which pension is payable to a veteran to whom this section applies in respect of the incapacity of the veteran from war-caused injury or war-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 war-caused injury or war-caused disease, or both, as the case may be.

(3) For the purposes of this section, the maximum rate per fortnight is $216.90 per fortnight.

(4) Where:

(a either:

(i) the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be 100% or has been so determined by a determination that is in force; or

(ii) ...

(b) the veteran has attained the age of 65;

(c) the veteran has an impairment rating of at least 70 points and a lifestyle rating of at least 6 points, each determined in accordance with the approved Guide to the Assessment of Rates of Veterans' Pensions; and

(d) the veteran is not receiving a pension at a rate provided for by section 23, 24 or 25; the rate at which pension is payable to the veteran is increased by 50% of the maximum rate set out in subsection (3). "

...

Guide to the assessment of rates of veterans' pensions

29. (1) The Commission may, from time to time, prepare a written document, to be known as the "Guide to the Assessment of Rates of Veterans' Pensions" 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.

... "

1. In the determination of the present appeal, it is important to note that the eligibility for a pension under the V. E. Act provided for by s. 13 is to a "veteran (who) has become incapacitated from a war-caused injury or a war-caused disease" and that the pension to be paid is a pension "by way of compensation" to the veteran. This provision makes it plain that the pension is to be by way of compensation for the incapacity caused by war-caused injury or war-caused disease.

2. Secondly, s. 29 makes it plain that the Guide to the Assessment of Rates of Veterans' Pensions ('the Guide') is directed at determining the extent of the incapacity of a veteran resulting from war-caused injury or war-caused disease and not the veteran's incapacity generally. Thirdly, the Guide sets out the methods by which the extent of that incapacity is to be assessed, the reference to that incapacity being incapacity resulting from war-caused injury or war-caused disease, or both. That is to say, the Guide is directed at determining the extent of the incapacity resulting from war-caused injury or war-caused disease and is not directed at determining the extent of the incapacity of the veteran from whatever cause.

3. On 9 March 1993 Mr Raisbeck was examined by a medical officer, who reported to the Administrative Appeals Tribunal that he assessed Mr Raisbeck in accordance with the approved Guide as having a impairment rating of 60 points for his disabilities which have been accepted as service related. The medical officer also said that if Mr Raisbeck's non-service related disabilities were also taken into account, Mr Raisbeck has an impairment rating of well over 70 points. The Commission accepted that Mr Raisbeck has a lifestyle rating of at least 6 points due to his accepted service related disabilities.

4. The Tribunal found, and it is not the subject of contention before me, that:
   

"(a) Mr Raisbeck has the benefit of a determination that is in force that the degree of his incapacity from war- caused injury or war-caused disease, or both, is 100 per cent;

(b) Mr Raisbeck has attained the age of 65 years;

(c) Mr Raisbeck has an impairment rating of 60 points due to his war-caused injury or war-caused disease, or both, and a lifestyle rating of at least 6 points, each determined in accordance with the approved Guide to the Assessment of Rates of Veteran's Pensions; and

(d) Mr Raisbeck is not receiving a pension at a rate provided for by section 23, 24 or 25. "

1. It was also uncontested and accepted by the Tribunal that Mr Raisbeck would have an impairment rating of at least 70 points if the disabilities which were not service related were taken into account. The position is that Mr Raisbeck had not been granted extreme disablement adjustment by the Commission or by the Veterans' Review Board because in the view of both of those bodies his impairment rating of 60 points due to war-caused injury or war-caused disease, or both, does not satisfy the requirement of s. 22(4)(c) that the impairment rating be at least 70 points. He qualifies for extreme disablement adjustment in all other respects.

2. It was submitted unsuccessfully before the Tribunal, and repeated before me, that an impairment rating of 70 referred to in s. 22(4)(c) need not be due entirely to war-caused injuries or war-caused diseases for Mr Raisbeck to be entitled to the extreme disablement adjustment. It was submitted on Mr Raisbeck's behalf that the Tribunal imported into s. 22(4) of the V. E. Act limiting words which are not in the sub-section. It was submitted that the effect of the Tribunal's construction was therefore to read 22(4)(c) as though it says:
   

"(c) the veteran has an impairment rating of at least 70 points due solely to war-caused injury or war-caused disease or both and a life style rating of at least 6 points each determined in accordance with the approved guide for the assessment of rates of veterans' pensions. "

1. It was submitted that the limiting words constituted a "gloss" impermissibly imported by the Tribunal and constituted a departure from the plain and unambiguous meaning of s. 22(4) of the V. E. Act and was therefore unjustified.

2. If that in fact is what the Tribunal had done it would clearly be wrong: see Cooper Brookes (Wollongong) Pty Ltd v. Commissioner of Taxation (1981) 147 CLR 297 per Gibbs CJ at 305; per Mason and Wilson JJ at 319; Social Security v. Clear (1991) 28 FCR 405 at 408-9. A court of course is reluctant to add any words to the statute: see generally Fredericks v. Payne (1862) 158 ER 1016 at 1018-9; Green v. Carter (1974) VR 461 at 463 where a number of authorities are referred to; R. v. Abrahams (1984) 1 NSWLR 491 at 502 and Dallikavak v. Minister for Immigration and Ethnic Affairs (1985) 61 ALR 471 at 475-6.

3. Referring to the terms of s. 13(1)(d) of the V. E. Act, Mr Amerena, counsel for Mr Raisbeck, did not dispute that the eligibility of a pensioner arises relevantly only in the case of a veteran who suffers incapacity due to war-caused injury or disease. However, he submitted that the extreme disablement adjustment is not a discrete pension within the meaning of s. 13(1)(d), rather it was an adjustment to the General Rate of pension: an "add on" (using words referred to in the 2nd Toose Report at p 89.3) to the existing General Rate structure. It was submitted that any person receiving an extreme disablement adjustment must suffer incapacity due to war-caused injury or disease, as s. 22(4)(a)(i) makes plain. The submissions for the appellant pointed out that that sub-paragraph does require a substantial nexus between disability and war-caused injury or disease. The submission was that advancing age alone was likely to cause increasing frailty in many veterans' lifestyle leading to their extreme disablement and that Parliament intended to give special and extra consideration to aged and increasingly disabled veterans, notwithstanding that some of the incapacity was not war related.

4. In the second reading speech of the Veterans' Affairs Legislation Amendment Bill 1988, the then Minister, Mr Ben Humphries said:
   

"The Bill provides for the introduction of an Extreme Disablement Adjustment (EDA) to assist those frail, aged veterans who are not adequately compensated by the present disability pension structure. These are veterans who are receiving the 100% general rate disability pension, are severely incapacitated by their war or defence-caused disabilities, have passed the normal retirement age and are not eligible for the intermediate or special rate of pension.

The EDA will be an addition to the maximum general rate pension received by the veteran and will be equal to 50% of that rate."

1. In my view, that statement is consistent with the Commission's submission that the extreme disablement adjustment is additional compensation for veterans receiving 100% of the general rate of disability pension who "are severely incapacitated by their defence or war-caused disabilities".

2. The Guide referred to in s. 29 of the V. E. Act under the heading "PRINCIPLES OF ASSESSMENT" states:
   

"Incapacity, for the purposes of assessing General Rate pension, is primarily comprised of a medical impairment rating.

Impairment is defined to contain two components: physical loss of, or alteration to, any body part or system; and the functional loss to which this may give rise. ...

A lifestyle rating is added to the impairment rating in order to arrive at the General Rate pension payable for incapacity from accepted disablement. This is because impairment may also have an effect on a person's capacity to function in society and enjoy life."

1. Appendix 7 to the Guide is a table combining impairment rating and lifestyle rating to reach a degree of incapacity. Impairment rating of 65 points automatically confers a degree of incapacity of 100%. The Guide makes plain that the loss of function is to be associated with an accepted disablement; that is to say, an incapacity accepted as being the consequence of disease or injury that is war-caused. "Injury" and "disease" are defined in s. 5 of the V. E. Act, and s. 9 of the V. E Act defines those injuries or diseases which are to be taken as war-caused for the purposes of the Act.

2. In my opinion, on the proper construction of s. 22(4) of the V. E. Act, the requirement that the veteran have an impairment rating of at least 70 points is a requirement that that impairment be the consequence of war-caused injury or war-caused disease, or both. It is not necessary in reaching that conclusion to add words to the sub-section.

3. In my opinion, the requirement that the veteran have a Lifestyle rating of at least 70 points and a Lifestyle rating of at least 6 points, each determined in accordance with the approved Guide to the Assessment of Rates of Veterans' Pensions, immediately, and exclusively, requires consideration of the extent of the incapacity of the veteran resulting from war-caused injury or war-caused disease, or both. (my emphasis)

4. The Guide is directed to the determination of the extent of that incapacity and the methods by which that incapacity can be expressed as a percentage. That view of the construction of s. 20(4), in my opinion, is consistent with the other provisions of the Act, in particular, ss. 13 and 29. In my opinion the conclusion of the Tribunal to affirm the decision under review was correct. More precisely, it involved no error of law.

5. The appeal will be dismissed. I will hear the parties as to costs.