Greenfield and Repatriation Commission
[2008] AATA 550
•30 June 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 550
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200500944
VETERANS' APPEALS DIVISION ) Re LEWIS WAYNE GREENFIELD Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Regina Perton, Member Date30 June 2008
PlaceMelbourne
Decision The Tribunal sets aside the decision under review and substitutes a decision that Mr Greenfield is entitled to an increase in the rate of disability pension to the special rate as from 12 June 2006. Regina Perton
Member
VETERANS’ AFFAIRS ‑ pension at special rate – date of effect of payment
Veterans’ Entitlements Act 1986 ss 13(1)(b), 14, 19, 20(1), 24(1)(a), 24(1)(b), 24(1)(c), 24(2)(b), 119, 157(2),177(2)
Benjamin v Repatriation Commission (2001) 70 ALD 622
Owen v Repatriation Commission (1995) 38 ALD 241
Re Boxsell and Repatriation Commission [2007] AATA 1215
Re Clements and Repatriation Commission (1997) 49 ALD 798
Repatriation Commission v Alexander (2003) 75 ALD 329
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Stafford (1995) 56 FCR 132
Repatriation Commission v Van Heteren (2003) 37 AAR 533
REASONS FOR DECISION
30 June 2008 Regina Perton, Member 1. Lewis Greenfield, a fifty-six year old veteran, is now receiving disability pension at the special rate as he is unable to work due to his war-caused conditions. His payment at the special rate was backdated to 12 June 2006, three months before the date he lodged a claim with the Repatriation Commission (the Commission) for recognition of obsessive compulsive disorder and major depression as war‑caused conditions. Mr Greenfield submits that the special rate should be payable from 31 July 2003, three months before 31 October 2003, the date he lodged an earlier claim with the Commission. The claim lodged on 31 October 2003 is the subject of this review by the Tribunal. The parties have asked the Tribunal to determine the date of effect of the special rate, having agreed that Mr Greenfield now meets the other criteria for the payment.
2. Prior to the application for review being lodged on 25 October 2005, Mr Greenfield was receiving a disability pension at 70 per cent of the general rate on the basis that his osteoarthritis right hip, localised osteoarthrosis of the left knee and post traumatic stress disorder (PTSD) were war‑caused conditions. On 31 October 2003, Mr Greenfield sought to have obsessive compulsive personality disorder and adjustment disorder with depressed and anxious moods accepted as war‑caused. The Commission rejected Mr Greenfield’s claims for obsessive compulsive personality disorder and adjustment disorder with depressed and anxious moods. The decision was affirmed by the Veterans’ Review Board (VRB). On 12 September 2006 Mr Greenfield lodged a claim for obsessive compulsive personality disorder and depressive disorder. The Commission rejected Mr Greenfield’s fresh claim but the VRB set aside the Commission's decision. The Commission lodged an application for review of the VRB decision. The Commission subsequently withdrew the application following further psychiatric evidence. The Commission now accepts that the conditions of obsessive compulsive disorder and depressive disorder were war-caused and that Mr Greenfield’s is entitled to disability pension at the special rate. The issue before the Tribunal is the date of effect of the increase in pension.
Submissions
3. Mr Dino De Marchi, Mr Greenfield’s solicitor, provided a submission dated 21 December 2007 in which he stated, among other things:
…
2.1 The formal claim for disability pension was filed on 31 October 2003. The Applicant had claimed Obsessive Compulsive Personality Disorder and Post Traumatic Stress Disorder.1 However, Dr Adey, his treating psychiatrist had diagnosed Obsessive Compulsive Disorder.
2.2 The Applicant noted that he had been unable to tolerate any stress, both in his military career and also in his civilian employment.
2.3 Dr Barry Kenny for the Respondent in his report of 19 March 20042 noted that the Applicants [sic] adjustment disorder was related to and was in response to his physical disabilities, which were accepted as being service-related.3
2.4 It is to be noted that in Dr Kenny's report of 23 June 2006 he states “I would have to acknowledge that it is a reasonable hypothesis that the emergence of his Obsessive Compulsive Disorder has a causal relationship with his Post Traumatic Stress Disorder”.4
2.5 Dr Strauss also regarded Post Traumatic Stress Disorder and Depression as linked to the physical disabilities of the Applicant and related to his war service.
2.6 Under the circumstances it is clear that the Post Traumatic Stress Disorder was the catalyst that changed the Applicant's personality trait to a disorder, and therefore the reason for his inability to engage in remunerative work.
2.7 It is clear that s 24(1)(a) and (b) are met by the applicant and are conceded by the Respondent. It is also submitted that s 24(1)(c) is also met for the following reasons.
2.8 Dr Strauss in his report of 15 February 2006 notes that ‘people with obsessional traits in their personality do not do well once their psychiatric problems become significant’.5
2.9 The Veterans Review Board … seems to have completely overlooked that the Post Traumatic Stress Disorder was the cause of his depression…
…
3.3 The Respondent argues that the date of effect cannot be made prior to the acceptance of the condition of obsessive compulsive disorder. However, as outlined in our submission above, it was the Post Traumatic Stress Disorder and Depression which were the factors which put an end to the Applicant's ability to work and is now preventing him from resuming remunerative employment.
…
4. Mr De Marchi cited a passage from Benjamin v Repatriation Commission (2001) 70 ALD 622 at 633 where the Court said:
An inquisitorial review conducted by the tribunal is one in which the tribunal is required to determine the substantive issues raised by the material and evidence advanced before it. In doing so, it is obliged not to limit its determination to the “case” articulated by an applicant if the evidence and material that it accepts, or does not reject, raises a case on a basis not articulated by the applicant…
5. Mr Robert Douglass, representing the Commission, provided a response dated 22 February 2008. Mr Douglass stated that:
…
6 The respondent submits that in the light of the available psychiatric evidence… the veteran’s obsessive compulsive disorder is a matter affecting his work capacity and that therefore his eligibility for Special Rate pension is dependent on the acceptance of obsessive compulsive disorder as war-caused (see Repatriation Commission v Hendy [2002] FCAFC 424, Repatriation Commission v Alexander (2003) 75 ALD 329 and Repatriation Commission v Van Heteren (2003) 37 AAR 533).
Relevant legislation
7 Paragraph 13(1)(b) of the Act imposes on the Commonwealth a liability to pay pension by way of compensation to a veteran who is incapacitated from a war-caused injury or a war-caused disease. Section 14 of the Act regulates format of claims for compensation under section 13. Subsection 20(1) limits the date of effect of pensions granted, to a date not more than 3 months before the date of receipt of a valid claim. Subsection 157(2) sets the date of effect for claims accepted by the Board by reference to the date of effect of the Commission decision in subsection 177(2) sets the date of effect for claims accepted by the tribunal by reference to the date of effect of the Board's decision.
…
6. Relying on Repatriation Commission v Stafford (1995) 56 FCR 132 and Owen v Repatriation Commission (1995) 38 ALD 241, Mr Douglass submitted that:
9. The respondent submits, in reliance on these cases, that the decision before the Tribunal in the present proceedings is the Board's decision of 7 September 2005 in regard to the assessment of the veteran’s accepted disabilities. These accepted disabilities were osteoarthritis right hip, localised osteoarthrosis of the left knee and post traumatic stress disorder at the time of the Board's decision and subsequently came to include obsessive compulsive disorder and depressive disorder with effect from 12 June 2006, as a result of the Board's decision of 9 May 2007.
The respondent submits that the decision of the Board of 18 January 2005, which accepted the claim for post traumatic stress disorder and refused the claims for obsessive-compulsive disorder and adjustment disorder with depressed and anxious moods, is not before the Tribunal, since no application for review to the tribunal respect of this decision was ever lodged.
The respondent further submits that the passage from Benjamin v Repatriation Commission… does not have the effect contended for…. It does not confer jurisdiction on the Tribunal to consider entitlement issues, which have not been subject to an application for review to the Tribunal, in an assessment appeal. The context of Benjamin makes this clear. The case concerned the issue of diagnosis of a claimed psychiatric condition which was before the Tribunal and the obligations of the Tribunal to consider alternative diagnoses of such a condition. The case is not authority for the proposition that the Tribunal is under an obligation to consider the appropriate diagnostic labels for psychiatric conditions which were accepted by other decision-makers and were not subject to review by the Tribunal.
…
7. Mr Douglass pointed to a number of cases in which the Tribunal considered the issue of date of effect for conditions accepted by other decision-makers, while an application before the Tribunal remained alive. These included Re Clements and Repatriation Commission (1997) 49 ALD 798 and Re Boxsell and Repatriation Commission [2007] AATA 1215.
8. Mr De Marchi replied in a submission dated 14 April 2008:
…
1.2 While it is true that the decision of the acceptance of Compulsive Personality Disorder is not per se before the Tribunal–(the Commission having withdrawn this Application), nevertheless, it is a condition that has to be assessed by the Tribunal pursuant to the requirements of s 19 of the Veterans’ Entitlement Act together with all other accepted conditions.
….
1.8 The applicant [sic] should not be allowed to raise legal form and technicalities to avoid paying the Veteran's pension from an earlier date; s119(1)(g) directs the Commission to: “… act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities…
9. Mr De Marchi submitted that the decision in Owen has no application to this matter because it is distinguishable on its facts. In Owen no claim had been made for the relevant disability, nor had the disability been accepted by the Commission. Mr De Marchi also suggested that s 24(2)(b) of the Veterans’ Entitlements Act 1986 (the Act) was applicable. That section states:
…
3.2 It is submitted, that even if the Tribunal finds that the condition of Obsessive Compulsive Disorder cannot be applied during the relevant assessment period, this ameliorative provision allows the Tribunal to set the date of effect at the time that the Post Traumatic Stress Disorder was accepted.
...
Date of effect of payment at the special rate
10. The Tribunal concurs with the parties that obsessive compulsive disorder was a relevant factor in Mr Greenfield’s entitlement to a disability pension at the special rate. The evidence given to the Tribunal strongly suggested such a conclusion. The Tribunal accepts the Commission’s submission that the payment can only be backdated to three months from the date that the claim that resulted in the condition being accepted as war-caused was lodged. The claim for obsessive compulsive disorder was lodged on 12 September 2006.
11. The Tribunal does not accept Mr De Marchi’s submission that it may use the provisions of s 24(2)(b) or s 119 to override the provisions of s 157 of the Act.
DECISION
12. The Tribunal sets aside the decision under review and substitutes a decision that Mr Greenfield is entitled to an increase in the rate of disability pension to the special rate as from 12 June 2006.
I certify that the twelve [12] preceding paragraphs are a true copy of the reasons for the decision of:
Regina Perton, Member
(sgd) Olympia Sarrinikolaou
Clerk
Dates of hearing: 8 – 9 February 2007
Date of final submission: 14 April 2008
Counsel for applicant: Mr D De Marchi
Solicitor for applicant: De Marchi & Associates
Counsel for respondent: Mr R DouglassSolicitor for respondent: Department of Veterans’ Affairs
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