Cotterell and Repatriation Commission

[2000] AATA 444

DECISION AND REASONS FOR DECISION [2000] AATA 444

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N1999/738

VETERANS' APPEALS   DIVISION     )          
           Re      FRANCIS FREDERICK COTTERELL  
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Deputy President A M Blow OAM QC.,  

Date7 June 2000

PlaceSydney

Decision      The Tribunal sets aside the decision under review and substitutes a decision increasing the applicant's rate of pension to the special rate with effect from 28 May 1998.       
   [Sgd A M Blow]
  Deputy President
CATCHWORDS
Veterans' entitlements – rate of pension – application for increase – whether earlier determination that disease war-caused is examinable.
Veterans' Entitlements Act 1986 – ss.14, 15, 19(3), 19(4), 19(5), 175(1)
Vietnam Veterans' Association v Gallagher (1994) 34 ALD 205
Repatriation Commission v O'Brien (1985) 155 CLR 422
Langley v Repatriation Commission (1993) 43 FCR 194
Repatriation Commission v Stafford (1995) 38 ALD 193
Fitzmaurice v Repatriation Commission (1989) 19 ALD 297
Secretary, Department of Social Security v Riley (1987) 13 ALD 608
Lees v Comcare (1999) 56 ALD 84
Owen v Repatriation Commission (1995) 38 ALD 241

REASONS FOR DECISION

7 June 2000 Deputy President A M Blow OAM QC.,              

1. This is an application for the review of a decision made by a delegate of the respondent on 3 August 1998 and affirmed by the Veterans' Review Board ("the VRB") on 29 January 1999.    On 13 February 1996 a delegate of the respondent made a determination in favour of the applicant accepting as war-caused two disabilities which were described as "post-traumatic stress disorder with alcohol abuse" and "bilateral sensorineural hearing loss with tinnitus".   On 28 May 1998 the applicant, who was receiving a disability pension in respect of those conditions at 100 per cent of the general rate, applied for an increase in the rate of his pension.   The delegate decided on 3 August 1998 not to increase his rate of pension, but to continue it at 100 per cent of the general rate.

2. At the hearing of this application, the respondent contended that the applicant was not suffering from post-traumatic stress disorder.   It conceded that the applicant might be suffering from some sort of psychiatric disorder, but asserted that any such disorder was not post-traumatic stress disorder  and was not war-caused.   Counsel for the applicant contended that it was not open to this Tribunal to reconsider the earlier determination to the effect that the applicant was suffering from a war-caused post-traumatic stress disorder.   I dealt with the issue as to the Tribunal's powers as a preliminary point.   After receiving submissions as to that issue, I ruled that the Tribunal had no power to reconsider the earlier determination, reserving my reasons. Miss Pacey, who represented the respondent, had told me that she was instructed to concede the entitlement of the applicant to the special rate of pension if I reached such a conclusion as to the law.   I formally reserved my decision so that I could take time over the explanation of my reasoning.

3. The scope of the Tribunal's powers in this case depends upon the provisions of the Veterans' Entitlements Act 1986 ("the Act"). Under s.14 of the Act, the procedure whereby a veteran seeks a pension is called a claim. Under s.15 of the Act, the procedure by which a veteran seeks an increase in the rate of his or her pension is called an application. The manner in which claims and applications are to be dealt with is set out in s.19 of the Act, the relevant parts of which read as follows:-

   "(3) The Commission shall determine a claim for a pension as follows:-

   (a)first, the Commission shall determine whether the claimant is entitled to be granted a pension in respect of:

   (i)the incapacity of a veteran from war-caused injury or war-caused disease, or both; or

   (ii)the death of a veteran that was war-caused;

   (b)then, if the Commission determines that the claimant is so entitled, the Commission shall proceed as set out in subsection (5).

   (4) The commission shall determine an application for a pension at an increased rate in accordance with subsection (5).
   (5) Where paragraph (3)(b) applies in respect of a claim or subsection (4) applies in respect of an application, the Commission shall assess, in accordance with         whichever of sections 22, 23, 24, 25, 27 and 30 are applicable

   (a)the rate or rates at which the pension would have been payable from time to time during the assessment period; and

   (b)subject to subsection (6), the rate at which the pension is payable from the date of the determination;

   and shall make a determination approving the payment of pension in accordance with that assessment."

4. By virtue of a definition of the word "disease" in s.5D(1) of the Act, mental disorders constitute diseases.

5. There is nothing in the sub-sections I have quoted, or elsewhere in the Act, to suggest that the respondent, or a delegate of the respondent, making a determination pursuant to s.19(4), or even pursuant to s.19(3)(b), has the power to reconsider, ignore or reverse an earlier determination under s.19(3)(a)(i) to the effect that the veteran in question is entitled to a pension in respect of an incapacity from a war-caused injury or disease.

6. By s.31 of the Act, the respondent is given powers to review its earlier decisions. Under s.31(6), it can cancel or suspend pensions, or decrease the rates of pensions, on the basis of relevant material that was not before the decision making body that decided to grant them. Those provisions suggest that s.19(3), (4) and (5) should not be interpreted as conferring any implied power to reconsider, ignore or reverse an earlier determination to the effect that a veteran is entitled to a pension in respect of an incapacity from a war-caused injury or disease. No such power need be implied since an express power has been conferred.

7. The provisions in the Act that relate to the review by the VRB of decisions of the Commission (and its delegates) do not contain anything that would suggest that the VRB has any greater power to reconsider, ignore or reverse such earlier determinations. Under s.135(1) a person who is dissatisfied with any decision of the Commission in respect of a claim or application may "make application to the Board for a review of the decision of the Commission". The powers of the VRB are defined by s.139(3), which reads as follows:-

   "For the purpose of reviewing a decision of the Commission, the Board may exercise all the powers and discretions that are conferred by this Act on the Commission in like manner as they are required by this Act to be exercised by the Commission, and shall make a decision, in writing:
   (a)       affirming the decision under review;
   (b)       varying the decision under review; or

   (c)setting aside the decision under review and making a decision in substitution for the decision so set aside."

1. Similar wording is used in the provisions relating to applications to this Tribunal. The right to make an application is conferred by s.175(1) of the Act, which reads as follows:-

   "Where a decision made by the Commission has been reviewed by the Board upon a request made under section 135 and affirmed, varied or set aside, then, subject to section 29 of the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for a review:
   (a)       of the decision of the Commission that was so affirmed;
   (b)       of the decision of the Commission as so varied; or

   (c)of the decision made by the Board in substitution for the decision so set aside;

   as the case may be."

2. The powers of this Tribunal are defined by s.43(1) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"), which reads as follows:

   "For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
   (a)       affirming the decision under review;
   (b)       varying the decision under review; or
   (c)       setting aside the decision under review and:

   (i)        making a decision in substitution for the decision so set aside; or

   (ii)remitting the matter for reconsideration in accordance with any     directions  or recommendations of the Tribunal."

3. In the respondent's statement of facts and contentions dated 28 February 2000 and signed by Mr. J. R. Marsh, Senior Advocate, the following reasoning was advanced:

   "5.The respondent contends that the applicant does not satisfy the relevant diagnostic criteria for PTSD [i.e. post traumatic stress disorder] laid down in DSMIV [a psychiatric manual].

   6.In particular the respondent contends that the applicant did not experience a stressful event, one of the essential ingredients necessary for a diagnosis of PTSD, as that term is defined in DSMIV.

   7.The respondent submits that the Tribunal has no warrant to review the Commission's decision to accept PTSD as being war caused and that the Tribunal's sole task in this matter is to assess the appropriate level of service related incapacity.

   8.The respondent contends that the task of assessing incapacity arising out of service necessarily involves a consideration of the service from which symptoms of the relevant condition are said to derive.   The validity of this approach was approved by the Federal Court in VVA v Gallagher 34 ALD 205.

   9.The respondent contends that there is no evidence the applicant suffers symptoms such as re-experiencing a stressful event by way of recurrent and intrusive, distressing recollections of the event.

   10.The respondent contends, in the absence of a necessary stressful event, that the applicant's incapacity arising out of PTSD is nil."

1. Paragraph 7 of that document seems to be completely consistent with the applicant's contentions as to the Tribunal's jurisdiction,  but paragraph 8 appears to be totally inconsistent with paragraph 7.   After studying the judgment of Heerey J in Vietnam Veterans' Association v Gallagher (1994) 34 ALD 205, I cannot see any passage can be taken as authority for the proposition advanced in paragraph 8 of Mr. Marsh's document. I invited the respondent's representative at the hearing to explain the reasoning in that document to me, and to direct me to the relevant passages in Gallagher.   She obtained an adjournment to seek instructions.   On her return she did not respond to my enquiries, but told me she was instructed to let the Tribunal decide on its ruling on the preliminary point and, if a ruling was given in favour of the applicant, to concede the special rate of pension with effect from 28 May 1998.

2. Gallagher involved an application for the review of a decision by a senior member of VRB not to disqualify himself either at all, or in cases involving Vietnam veterans, their widows, or their association.   The critical questions in the case were whether the conduct of that senior member demonstrated bias, or gave rise to a reasonable apprehension that he might not bring an impartial and unprejudiced mind to cases on which he sat.   At 230 Heerey J said in relation to one veteran, who was seeking an increase in his rate of pension for previously accepted medical conditions, that the nature of that veteran's service in Vietnam was relevant to the degree of incapacity claimed.   That veteran had a chronic anxiety state which had been accepted as defence-caused, but there was a conflict as to the extent to which his psychiatric symptoms were a response to his wife's terminal illness.   It does not appear to have been suggested that the anxiety state was not service-related.   The comments by Heerey J are obiter, and it is not clear from his judgment whether any argument was presented as to scope of the VRB's jurisdiction to reconsider a determination accepting an injury or disease as defence-caused when that determination  was not the subject of an application for review by it.   I have not been able to find any other passage in Gallagher that could arguably be relevant.   I reject the reasoning in the statement of facts and contentions as illogical.  

3. In my view any consideration of the case law in relation to this issue should begin with the High Court's decision in Repatriation Commission v O'Brien (1985) 155 CLR 422. In 1961 a Repatriation Board made a determination in favour of the respondent in that case to the effect that he suffered from an anxiety neurosis that was due to war service. In 1974, after he was found to be suffering from essential hypertension, he sought to have that condition accepted as war-caused on the basis that it was related to his anxiety neurosis. The Repatriation Commission made a series of five determinations to the effect that the condition of essential hypertension was not war-caused. On the first four occasions the determination in question was set aside and the matter remitted to the Commission. After the fifth determination, an appeal went to the Repatriation Review Tribunal, the President of which referred all five determinations of the Commission to the President of this Tribunal pursuant to s.107VZZB(1) of the Repatriation Act 1920 ("the 1920 Act"). That sub-section authorised the President of the former Tribunal to "refer the decision to the President of the Administrative Appeals Tribunal, together with a statement of his reasons for so concluding, with a request for a review by that Tribunal of that decision." Under s.107VZZB(8) the President of this Tribunal was obliged to "direct the review by that Tribunal [i.e. this Tribunal], in accordance with the Administrative Appeals Tribunal Act 1975, of that decision". The then President did so.

4. Ultimately the matter came before the High Court, where attention was given to the question whether this Tribunal had the power to reconsider the 1961 determination accepting the condition of anxiety neurosis as war-caused.  Gibbs CJ, Wilson and Dawson JJ, in their majority judgment,  said this at 429:

   "In the present case, the reference was confined to the five decisions of the Commission whereby on each occasion the respondent's claim for a war pension based on his essential hypertension was rejected. The decision of a Repatriation Board in November 1961 accepting the respondent's anxiety neurosis as due to war service has never been challenged by way of appeal. The same is true of the decision of a Board in 1970 which raised the assessment of his disability in respect of that neurosis from nil to 20 per cent. Whether or not the Commission considered it desirable to do so, in our opinion it was not open for these earlier decisions to be reviewed and reversed in the course of considering the respondent's claim based on his hypertension. Neither of these earlier decisions was embraced within the reference to the president of the A.A.T. The A.A.T. therefore had no jurisdiction to review either of those decisions: Administrative Appeals Tribunal Act, s.25."

5. That case involved a claim to have a second medical condition accepted as war-caused. That is not the situation in this case, since the veteran is simply seeking an increase in the rate of his pension on the basis that his war-caused condition has deteriorated. Although the proceedings in this Tribunal were initiated by an application under s.175(1) of the Act, rather than a reference under s.107VZZB(1) of the 1920 Act, what the Tribunal has to do is exactly the same. It has to review a decision. One might therefore be forgiven for thinking that the passage I have quoted is high authority for the proposition that this Tribunal has no jurisdiction to review any determination but the one under review.

6. In Langley v Repatriation Commission (1993) 43 FCR 194, the Full Court of the Federal Court of Australia decided, by majority, that there was no bar by way of jurisdictional limitation to this Tribunal examining the facts underlying a determination that one medical condition was war-caused in the course of reviewing a decision that a related second condition was not war-caused. Their Honours were considering the same sort of situation as that in O'Brien. The only difference was a procedural one, in that the proceedings had come before this Tribunal pursuant to s.175(1) of the Act, and not by way of reference under s.107VZZB(1) of the 1920 Act. The majority (Lockhart and Beazley JJ) distinguished O'Brien at 200 on the basis that the High Court in that case had decided only that this Tribunal's jurisdiction was derived from the referring instrument, which did not include the 1961 determination.   It follows that I should not regard the passage I have quoted from O'Brien as having any application to the facts of this case.

7. But in my view Langley should be distinguished, on the basis that it relates to a different situation from that in this case. The structure of the Act is such that any claim to have a medical condition accepted as war-caused must be considered on its merits, free of the fetters of any earlier determination in respect of any related medical condition, whereas the structure of s.19 makes it abundantly clear that, in assessing the rate of pension payable in respect of a war-caused condition, no decision-maker at any level has the freedom to reconsider, ignore or reverse the determination that that condition is war-caused.

8. It is also significant that when the respondent makes a decision adverse to a veteran pursuant to s.31, (e.g. a decision cancelling a pension on the basis that a condition thought to have been war-caused was not war-caused), the veteran may apply to the VRB for the review of that decision pursuant to s.135(2) of the Act. That provision suggests that Parliament did not intend that this Tribunal should be entitled to review a determination accepting a condition as war-caused when that matter has not been considered at VRB level. In Repatriation Commission v  Stafford (1995) 38 ALD 193 at 203, the Full Court of the Federal Court of Australia, dealing with a similar question as to the construction of s.175(1)(a) of the Act, said this:

   "The legislature has been at pains to ordain an expeditious and comprehensive administrative review by an independent, expert board of the decisions of the commission which determine entitlements under the Veterans' Entitlements Act 1986, and to grant a right of further review only after the board's review has been carried out. A construction of s.175(1)(a) which would permit a claimant or an applicant to bypass the board's review would not be consonant with that legislative intention, in our opinion."

1. Stafford is authority for the proposition that, when a veteran seeks the review of a series of decisions by the VRB, and then seeks review by this Tribunal, this Tribunal has jurisdiction to review all the primary decisions.  Similarly, the Full Court decision of Fitzmaurice v Repatriation Commission (1989) 19 ALD 297 is authority for the proposition that, on a review of a decision by this Tribunal, the whole of the decision can be reviewed. There does not seem to be any reported case as to whether, on an application for an increase in the rate of a veteran's pension, an earlier decision as to entitlement to that pension can be reviewed.

2. Although s.43(1) of the AAT Act empowers this Tribunal to "exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision", it is of critical significance that those powers and discretions may only be exercised for the purpose of reviewing the decision under review. Thus the Full Court of the Federal Court of Australia has held in Secretary, Department of Social Security v Riley (1987) 13 ALD 608 that, in reviewing a decision that there were no special circumstances by reason of which payments of sickness benefits should not be refunded following the receipt of compensation, this Tribunal did not have authority to review any decision other than the decision under review. Similarly, in  Lees v Comcare (1999) 56 ALD 84, the Full Court held that, in reviewing a decision under the Safety, Rehabilitation and Compensation Act 1988 as to the entitlement of a worker to travelling expenses, this Tribunal did not have the power to award compensation in respect of permanent impairment.   In  Owen v Repatriation Commission (1995) 38 ALD 241, Finn J held that, on reviewing a decision as to an application for an increase in a veteran's pension, it was not open to this Tribunal to make a decision accepting as war-caused a medical condition that had not previously been so accepted. That case is also relevant because the Full Court considered it significant that the legislative framework provided for determinations to be reconsidered at an intermediate level by the VRB before they could be reviewed by this Tribunal.

1. I think it must follow that, for the purpose of reviewing a decision on an application for an increase in a veteran's rate of pension, this Tribunal is not able to exercise the respondent's power under s.31 of the Act to reconsider the decision made granting the claim for that pension. Further, I believe the statutory framework, particularly the structure of s.19 of the Act, requires the respondent to determine an application for a pension at an increased rate without reconsidering the applicant's entitlement to that pension. The same restriction must apply to the VRB and this Tribunal, since their powers on the review of such a decision are limited by s.135(1) of the Act and s.43(1) of the AAT Act respectively so that they stand in the shoes of the respondent.

2. I was informed at the hearing that the respondent did not contend that the applicant was suffering from any different psychiatric disorder from that which was the subject of his original claim in 1996. I was also informed that the respondent was not positively contending that the applicant was no longer incapacitated by psychiatric symptoms. I received by way of documentary evidence a statement from the applicant outlining his work history, reports by two specialists in occupational medicine (Dr. Baz and Dr. Gibson), and a report of a psychiatrist (Dr. Schultz). On the basis of the uncontested and unchallenged evidence in those documents and the documents lodged under s.37 of the AAT Act, I am reasonably satisfied that the applicant satisfies all the requirements of s.24(1) of the Act. He had not turned 65 when he made his application for an increase in the rate of pension. There is a determination in force entitling him to 100% of the general rate of pension. It is clear from the reports that I have referred to that his incapacity from his war-caused disabilities alone renders him incapable of working for more than eight hours per week. Those war-caused disabilities alone have prevented him from undertaking remunerative work that he was undertaking as a driver. Although he has also been diagnosed as suffering from emphysema, bronchitis and coronary heart disease, and also has an old injury to his left foot, none of those problems contributed to him having to cease work. He ceased work because of his war-caused disabilities alone. As a result he is suffering a loss of wages that he would have been earning if he were not free of his war-caused incapacity. This situation is not temporary.

3. I am therefore reasonably satisfied that the concession made by the respondent as to the special rate of pension was a proper one.   The earliest date from which the increased rate can be paid is the date of the applicant's claim,  28 May 1998.

4. For these reasons I have decided to set aside the decision under review and substitute a decision increasing the applicant's rate of pension to the special rate with effect from that date.

   I certify that the 24   preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President AM Blow OAM QC

   Signed:         .....................................................................................
     Personal Assistant

   Date/s of Hearing   19 May 2000
   Date of Decision  7 June 2000
   Counsel for the Applicant         Mr M Vincent
   Solicitor for the Applicant         Messrs Dibbs Crowther & Osborne

   Representative for the Respondent        Miss G Pacey (Dept of Veterans' Affairs)