Husband and Repatriation Commission - [2002] AATA 390

DECISION AND REASONS FOR DECISION [2002] AATA 390

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W2000/4

VETERANS APPEALS DIVISION        )
           Re      NEIL FRANCIS HUSBAND
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date24 May 2002
PlacePerth

Decision      The decision under review is affirmed.
  ......….Sgd. Mr J. Handley............
  Senior Member
CATCHWORDS
Veterans Entitlements - Chronic fatigue syndrome - whether applicant had an inability to obtain appropriate clinical management - decision affirmed.
Veterans Entitlements Act 1986
Safety, Rehabilitation and Compensation Act 1988
Johnston v Commonwealth of Australia (1982) 43 ALR 559.
Lee v Minister of Pensions No. 2 (1948 3 War Pensions Appeals Reports 1901)
Brew v Repatriation Commission 1999 FCA 1246
Re Crowe and Repatriation Commission (1999) AATA 115

REASONS FOR DECISION

24 May 2002 Mr J. Handley, Senior Member

The applicant applies to review a decision of the Veterans Review Board ("VRB") made on 16 September 1999, where it was then decided that Chronic Fatigue Syndrome was not defence caused. In making its decision, the VRB affirmed a decision of the respondent previously made on 17 November 1998.
At all relevant times the applicant served within Australia and that service may relevantly be regarded as "defence service". Accordingly, any entitlement of the applicant is to be determined upon the balance of probabilities.
Having regard to the documents filed, it appears that it is not in dispute that the applicant suffers the condition of chronic fatigue syndrome. Additionally, it appears that that condition is a sequel to an accepted disability of leptospirosis. Additionally, I note that the condition of leptospirosis has been accepted by the Military Compensation and Rehabilitation Service on behalf of the Department of Defence, as an injury, which arose out of or in the course of the employment. This has given rise to an entitlement to compensation under the Safety, Rehabilitation and Compensation Act 1988.
It is also to be noted that the applicant has been a party to proceedings before this Tribunal, with respect to a claim for intermediate or special rate pension (1999 AATA 214). The Tribunal then determined that it could not consider chronic fatigue syndrome in the assessment of pension, because it had not been accepted as defence caused. The applicant appealed that decision to the Federal Court ([2000] FCA 356) and then to the Full Federal Court ([2000] FCA 1276). The single judge of the Federal Court dismissed the appeal against the decision of the Tribunal. The Full Federal Court dismissed the appeal against the decision of the single judge.
Having regard to the date that this application was made upon the respondent, a Statement of Principles must be considered. The only applicable Statement of Principles for chronic fatigue syndrome published with respect to defence service is Instrument No. 91 of 1997. This Instrument revoked Instrument No 287 of 1995.
Factor 5(a) provides that one of the three listed factors "must exist before it can be said that on the balance of probabilities…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Husband and Repatriation Commission

Details

AGLC: Husband and Repatriation Commission [2002] AATA 390
Case: [2002] AATA 390
Decision Date: 24 May 2002

CaseChat Overview and Summary

In the case of Husband and Repatriation Commission, the applicant sought to have his entitlement to compensation for chronic fatigue syndrome affirmed. The Repatriation Commission had previously denied the claim on the basis that the applicant had not demonstrated an inability to obtain appropriate clinical management. The matter was appealed to the Administrative Appeals Tribunal (AAT). The primary issue before the AAT was whether the applicant had an inability to obtain appropriate clinical management for his chronic fatigue syndrome, as required under the Veterans Entitlements Act 1986. The tribunal considered the Repatriation Commission's submission that appropriate clinical management should be measured against the standards prevailing at the time of treatment, and whether there were any barriers, either objective or subjective, to the applicant obtaining treatment.

The AAT found that the relevant case law, particularly Brew v Repatriation Commission, established that the term "inability" should be interpreted broadly to include both objective and subjective barriers to obtaining treatment. The tribunal concluded that there was no evidence of an objective barrier, as the applicant was free to seek treatment from any doctor of his choosing. Furthermore, the tribunal noted that in 1997, the year of the applicant's treatment, there were no known treatments for chronic fatigue syndrome, and thus no subjective barrier existed. The tribunal found that the applicant had not demonstrated an inability to obtain appropriate clinical management for his condition. The appeal was dismissed, and the decision of the Repatriation Commission was affirmed.

The tribunal's reasoning was based on the established interpretation of the term "inability" in the context of veterans' entitlements, and the specific circumstances of the applicant's case. The tribunal found that the case law, particularly the decision in Brew, provided a clear framework for determining whether an applicant had an inability to obtain appropriate clinical management. In this case, the tribunal concluded that the applicant had not met the required threshold, and thus the appeal was dismissed. The decision of the Repatriation Commission was affirmed, and the applicant's claim for compensation for chronic fatigue syndrome was denied.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The respondent, in its facts and contentions, submitted that the appropriate clinical management should be that which applied at the time of treatment, having regard to prevailing or existing standards. Reliance is made upon part of Dr Whitings report that there were no reliable treatments for the condition of chronic fatigue syndrome at 1997, irrespective of whether the condition had been properly diagnosed. Additionally, it was submitted that the applicant was never precluded from obtaining medical treatment or advice from Doctors outside of the Department of Defence.Conclusion & Reasons For Decision I am not satisfied that the Johnston decision has application in the present case. It is my view that it is more applicable in workers compensation applications, rather than entitlements of veterans for pension as determined under the Veterans Entitlements Act 1986. Additionally, the Court was concerned with a circumstance where there was a failure to diagnose and treat a particular condition, which resulted in a worsening or aggravation of that condition. In the present case, the applicant was treated for leptospirosis and it was subsequently determined that he also suffered the condition of chronic fatigue syndrome. There is nothing to point to any failure on the part of the applicant's medical practitioners to diagnose and treat the condition of chronic fatigue syndrome. There is certainly nothing which would indicate that there has been any worsening or aggravation of the condition had it been diagnosed. Doctor Whiting in his report of 26 February 1997, (page 115) concluded that at that time there were "no reliable treatments for chronic fatigue syndrome". The applicable factor in the Statement of Principles is concerned with whether the applicant had an inability to obtain appropriate clinical management for chronic fatigue syndrome. I am satisfied there has not been any inability on the part of the applicant to obtain appropriate clinical management. This is due to the fact that there was no prohibition upon the applicant obtaining medical advice from any doctor of his choosing. Also, in 1997 there was apparently no known treatment for chronic fatigue syndrome (refer p.119). The expression "inability to obtain appropriate clinical management" has been decided on many occasions in this Tribunal and upon review in the Federal Court. A majority of the Full Federal Court in Brew v Repatriation Commission 1999 FCA 1246 decided that the Judge at first instance was correct in his decision as to the meaning of the word "inability". At paragraph 26 Merkel J said-"In my view Sundberg J was quite correct in treating the meaning of "inability" in clause (1)(e) as lack of ability; lack of power, capacity, means". (Macquarie dictionary) second edition 1999 (or "the condition of being unable; lack of ability, power or means") (new shorter Oxford Dictionary 1993). The Dictionary definitions embrace what may fairly be described as objective barriers such as lack of power, capacity or means or a subjective barrier, such as the "condition of being unable". Whether the objective or subjective barrier to obtaining treatment is made out in a particular case depends upon the facts of that case".

Ratio Decidendi

Legal Principle Established

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