Husband v Repatriation Commission

[2000] FCA 1276

FEDERAL COURT OF AUSTRALIA
Husband v Repatriation Commission [2000] FCA 1276

VETERANS’ AFFAIRS – disability pension assessment – whether Administrative Appeals Tribunal erred in law in finding appellant ineligible for intermediate or special rate of pension – Tribunal found appellant suffered incapacity from accepted disability of leptospirosis during first two of three periods under review but not during third period – Tribunal found chronic fatigue syndrome (“CFS”) was main factor in appellant’s inability to work or to seek work – Tribunal also found that symptoms of CFS should not be regarded as ongoing effects of leptospirosis – whether Tribunal applied “Guide to the Assessment of Rates of Veterans’ Pensions” (“the Guide”) when deciding whether entitlement to intermediate or special rate of pension – whether it would have been in error to so apply the Guide – whether Tribunal erred in its application of the only factor test in ss 23(1)(b) and (c), and 24(1)(b) and (c) of Veterans’ Entitlement Act 1986 (Cth).

Veterans’ Entitlement Act 1986 (Cth) ss 19, 21A, 23, 24, 28, 29, 70

Flentjar v Repatriation Commission (1998) 48 ALD 1 referred to

NEIL FRANCIS HUSBAND v REPATRIATION COMMISSION
W 88 OF 2000

HILL, CARR & WEINBERG JJ
8 SEPTEMBER 2000
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 88 OF 2000

On appeal from a Judge of the Federal Court of Australia

BETWEEN:	NEIL FRANCIS HUSBAND Appellant
AND:	REPATRIATION COMMISSION Respondent
JUDGES:	HILL, CARR & WEINBERG JJ
DATE OF ORDER:	8 SEPTEMBER 2000
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the respondent’s costs of the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 88 OF 2000

On appeal from a Judge of the Federal Court of Australia

BETWEEN:	NEIL FRANCIS HUSBAND Appellant
AND:	REPATRIATION COMMISSION Respondent

JUDGES:	HILL, CARR & WEINBERG JJ
DATE:	8 SEPTEMBER 2000
PLACE:	PERTH

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1. This is an appeal from a judgment of a judge of this Court, given on 24 March 2000, dismissing the appellant’s application by way of appeal from a decision of the Administrative Appeals Tribunal, made on 7 April 1999, in relation to the appellant’s entitlement to a disability pension under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). The issue in the appeal is whether the Tribunal erred in law when it decided that the appellant was not entitled to either an intermediate or a special rate of pension under ss 23 or 24 (respectively) of the Act.

   FACTUAL BACKGROUND

2. The appellant, a former member of the Special Air Services Regiment, who left the Australian Army in 1995, suffers from a variety of conditions, 8 in all, accepted, for the purposes of the Act, as having been caused by his military service. One of them is leptospirosis. We do not think that it is necessary to set out the other conditions which have been accepted as being defence-caused diseases from which the appellant has suffered or is suffering. Nor is it necessary here to repeat the history of the appellant’s various challenges to the level of his impairment assessed, in turn, by the respondent, the Veterans Review Board and the Administrative Appeals Tribunal.

3. As will be noted the appellant claimed as well to suffer from chronic fatigue syndrome in the period from 19 April 1996 and thereafter.  That condition was not an accepted disability at the date of the hearing before the Tribunal.

   THE TRIBUNAL’S DECISION

4. The parties and the Tribunal agreed that it was appropriate to examine and assess the appellant’s various accepted disabilities in each of three periods, namely, from 17 December 1993 to 20 April 1995, from 21 April 1995 to 18 April 1996 and from 19 April 1996 onwards.

5. We set out below two paragraphs from the Tribunal’s reasons:

   “10.Based on all the evidence, the Tribunal finds that the applicant was in fact suffering incapacity from his accepted disability of leptospirosis during the first two periods under review, the assessment of which is dealt with separately in paragraphs 13 and 17 of these reasons.  Despite the views expressed by the applicant at the hearing and also in his subsequent submission contained in Exhibit A3, the Tribunal is satisfied – principally from the evidence provided by Drs Whiting and Golledge – that the applicant was not suffering incapacity from leptospirosis during the third period under review, commencing April 1996, and that it continues to remain asymptomatic.

   11.The condition of chronic fatigue syndrome, diagnosed by Drs Whiting and Golledge and evidence in this third period, was stated by Dr Golledge to be a sequalae (sic) of the applicant’s leptospirosis.  This syndrome, albeit probably a sequalae (sic) of his defence-caused leptospirosis, is nevertheless not an accepted disability as at the date of the hearing.  Furthermore, based on the weight of medical evidence before it, the Tribunal finds that the symptoms of chronic fatigue syndrome involved should not be regarded as ongoing effects of leptospirosis.  Consequently, the Tribunal is not able to take these symptoms into account in assessing disability pension (p8 and 9 of GARP [Guide to the Assessment of Rates of Veterans’ Pensions – “the Guide”] refer).”

6. The Tribunal found that the appellant’s degree of incapacity was 80% of the General Rate for all three periods from 17 September 1993 to the present. As it noted (at paragraph 23 of its reasons), in those circumstances it was required to consider whether an earnings-related rate of pension was payable to the appellant during any part of the total period reviewed. The relevant sections of the Act which provide for earnings-related rates of pension, namely the intermediate rate of pension and the special rate of pension, are (as we have mentioned earlier) ss 23 and 24 respectively. After setting out the relevant parts of those sections the Tribunal expressed its conclusions in the following terms:

   “25.As the applicant was still employed full-time as a soldier in the Army until 27 December 1995, the Tribunal can only consider the period from inclusive 28 December 1995 onwards. 

   26.One of the essential requirements stipulated in the Act for either the Intermediate or Special Rate is that the applicant has been prevented from continuing to undertake remunerative work, which he was undertaking, by the defence-caused injury or disease, or both, alone. The evidence in this instance is that Mr Husband who was on full duties until his discharge, decided of his own accord not to seek employment after leaving the Army in December 1995 until, in his view, he had fully recovered from the remaining symptoms of leptospirosis. The Tribunal is satisfied that this situation also continued to apply throughout the second review period – that is, up to 18 April 1996. That being the case the Tribunal finds that the applicant is not eligible for either the Intermediate or Special Rates up to that time.

   27.From April 1996 onwards the evidence shows that the applicant’s inability to work, or to seek work, was again not the result of his accepted disabilities alone. The Tribunal is relevantly satisfied that it was his non-accepted disability, diagnosed as chronic fatigue syndrome, which was the main factor in this regard. Hence, in accordance with the Act, the Tribunal finds that the applicant was not eligible for either the Intermediate or Special Rates of pension during this third review period either.”

   THE DECISION AT FIRST INSTANCE

7. At first instance the appellant relied upon 20 grounds of appeal.  The learned primary judge, correctly in our view, held that none of these grounds raised questions of law.  The appeal before us focussed on the manner in which the Tribunal dealt with the appellant’s claim to be entitled to either an intermediate or a special rate of pension by reason of incapacity due to chronic fatigue syndrome.

   THE APPELLANT’S CONTENTIONS AND OUR REASONING

8. The appellant submitted that the Tribunal, having determined that the degree of incapacity in the third period was 80%, had no need or basis to consider further s 21A or the Guide.  In our view, the short response to this submission is that the Tribunal, when deciding whether the appellant was entitled to an earnings-related pension did not consider further s 21A or the Guide. 

9. Even if the Tribunal had applied the Guide when deciding that the appellant was ineligible for the intermediate or special rate of pension, it would not, in our opinion have erred in doing so. The appellant submitted that the determination of incapacity for undertaking remunerative work, for the purposes of applying ss 23 and 24, was not to be made in accordance with the Guide. The Guide was to be applied only to determine the minimum degree of incapacity of 70% referred to in ss 23(1)(a)(i) and 24(1)(a)(i). Capacity to undertake remunerative work was to be determined by having regard only to the matters set out in s 28, to the exclusion of anything contained in the Guide.

10. We reject that submission for the following reasons.  First, s 21A(1) relevantly requires the degree of incapacity of a veteran from defence-caused disease to be determined according to the provisions of the Guide.  That reference to incapacity is a reference to the effects of that disease and not a reference to the disease itself – see s 5D(2), there being no contrary intention apparent.  Secondly, it is, in our view, entirely consistent with s 28, and in particular s 28(c), for the Commission or the Tribunal to assess the actual “degree of incapacity” (the language of s 21A), rather than simply note that it is over the 70% threshold, for the purposes of assessing the degree to which any physical or mental impairment has reduced the veteran’s capacity to undertake the relevant remunerative work. The reference in s 28(c) to “… the physical or mental impairment of the veteran as a result of the injury or disease …” must surely be to the actual impairment (in the relative degree) not to some notional impairment. The same reasoning applies to the assessment [required by ss 23(1)(b) and 24(1)(b)] whether the veteran’s incapacity is of itself alone of such a nature as to render the veteran incapable to the extent referred to in those sub-paragraphs. Finally, if s 28 were to be applied in the manner suggested by the appellant there would be the incongruity of the Guide not applying for the purposes of ss 23(1)(b) or 24(1)(b) but being applicable for the purposes of ss 23(1)(c) and 24(1)(c). In our view it is sufficiently clear that Parliament’s intention was that the Guide should be used generally for the assessment of pension rate entitlements, whether general intermediate or special.

11. Next the appellant contended that the Tribunal, having found that chronic fatigue syndrome was a consequence of leptospirosis and that chronic fatigue syndrome was incapacitating, should have found that the appellant was incapacitated from leptospirosis.

12. In our opinion, this contention overlooks the fact that the Tribunal found precisely to the opposite effect.  As can be seen from the second last paragraph of paragraph 11 of its reasons (set out above) the Tribunal found as a fact, based on the weight of medical evidence before it, that the symptoms of chronic fatigue syndrome should not be regarded as on-going effects of leptospirosis. 

13. Finally, the appellant submitted that the Tribunal erred in law in failing to consider whether he was incapacitated from his lumbar thoraco spondylosis.

14. It is not necessary to set out the full text of ss 23 and 24 of the Act. They can be found in both the Tribunal’s reasons and the reasons of the learned primary judge. It is sufficient to note that one of the requirements to be satisfied before an entitlement to an earnings-related rate of pension arises is expressed in terms of whether the defence-caused disease is the only factor preventing the veteran from continuing to undertake the relevant work – see s 23(1)(b) and (c) and s 24(1)(b) and (c). See also the decision of a Full Court of this Court in Flentjar v Repatriation Commission (1998) 48 ALD 1 at 4-5.

15. As the respondent submitted, in the present case the Tribunal found that it was not the chronic fatigue syndrome which prevented the appellant from continuing to undertake remunerative work during the period December 1995 to 18 April 1996, but the appellant’s own decision not to seek such employment.  In respect of the period from April 1996 onwards the Tribunal found that chronic fatigue syndrome was the main factor giving rise to his inability to work or seek work but that chronic fatigue syndrome was a non-accepted disability. 

16. In our view, in the light of those findings of fact, the Tribunal did not err in law in deciding that no entitlement could arise under either s 23 or s 24 of the Act.

17. For the same reason there was no error in law in the Tribunal’s failure to consider whether the appellant was incapacitated from the lumbar-thoraco spondylosis.  There was simply no point in its doing so because, on the findings of fact referred to above, that condition could not “of itself alone” be the cause of the claimed incapacity.

18. Counsel for the appellant submitted that the Tribunal had not applied the proper test.  It was, so he submitted, obliged to consider whether the appellant’s thoraco-spondylosis was the sole cause of his incapacity to work.  In our view, that was not necessary.  Having found that the chronic fatigue syndrome was the main cause of such incapacity, it was simply impossible for any other cause to be the sole cause.

    CONCLUSION

19. For the above reasons the appeal will be dismissed with costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:             8 September 2000

Counsel for the Appellant:	Mr P D Martino
Solicitor for the Appellant:	Law Access
Counsel for the Respondent:	Dr J T Schoombee
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	30 August 2000
Date of Judgment:	8 September 2000