Jones and Repatriation Commission (Veterans’ entitlements) - [2015] AATA 812

Jones and Repatriation Commission (Veterans’ entitlements) [2015] AATA 812 (20 October 2015)

Division

VETERANS' APPEALS DIVISION

File Number

2014/6399

Re

Frederick Jones

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Senior Member A C Cotter

Date 20 October 2015

Place Brisbane
The Tribunal affirms the decision under review.

.........................[Sgd]...............................................
Senior Member A C Cotter
CATCHWORDS
VETERANS’ ENTITLEMENTS – disability pension – depressive disorder – sleep apnoea - whether conditions connected to service – clinical onset outside period prescribed by statement of principles – connection of conditions to service not established – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 120, 120B
CASES
Re Greenough and Repatriation Commission (2002) 70 ALD 470
Repatriation Commission v Cornelius [2002] FCA 750
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Youngnickel v Repatriation Commission [2004] FCA 1691
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Lees v Repatriation Commission (2002) 125 FCR 331
SECONDARY MATERIALS
Statement of Principles concerning Depressive Disorder No. 84 of 2015
Statement of Principles concerning Depressive Disorder No. 28 of 2008
Statement of Principles concerning Sleep Apnoea No.42 of 2013
REASONS FOR DECISION
Senior Member A C Cotter
20 October 2015

Mr Frederick Jones served in the Royal Australian Air Force for just over 20 years, rising to the rank of Sergeant.
Following his discharge in August 1991, he worked as a concrete cutter for two or three years before injuring his back at work. He had a laminectomy in 1995 and due to his physical limitations, did not return to that work. Because of his limited education and the restrictions associated with his back condition, he has poor employment prospects and has effectively not worked for 20 years.[1]
[1] See Exhibit 1, T Documents, f B4 and f 36.
Although having been treated by his general practitioner for depression for some 20 years, Mr Jones first saw a psychiatrist, Dr Jonathan Hargreaves, in 2010. He confirmed a diagnosis of Major Depressive Disorder and thought that there was a convincing temporal and causal link between the victimisation that Mr Jones alleges to have experienced in the RAAF and the development of depression.[2]
[2] Exhibit 1, T Documents, report of Dr Jonathan Hargreaves dated 11 February 2013, f 33.
Separately, Mr Jones was diagnosed as suffering from Sleep Apnoea, and was referred to a specialist in that area.[3]
[3] See Exhibit 1, T Documents, letter from Dr John Corbett dated 15 June 2012, ff 6-7.
Mr Jones subsequently lodged a claim for a disability pension based on those two conditions.[4] The Commission rejected the claim on the grounds that the conditions were not defence-caused.[5] The Veterans’ Review Board (“Board”) relevantly affirmed the decision as it related to those conditions.[6] Mr Jones has sought a review of the decision by this Tribunal.
[4] Exhibit 1, T Documents, ff 9-18.
[5] Exhibit 1, T documents, f 45-50.
[6] Exhibit 1, T Documents, ff B-B10.
ISSUES FOR THE TRIBUNAL
Mr Jones’ period of service from 7 December 1972 to 26 August…

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.

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Details

Case: [2015] AATA 812
Decision Date: 20 October 2015

CaseChat Overview and Summary

In the case of Jones and Repatriation Commission, the primary issue was whether the applicant, Mr Jones, was entitled to a disability pension for his Major Depressive Disorder and Sleep Apnoea, both of which he claimed were connected to his service in the defence force. The matter was reviewed by the Administrative Appeals Tribunal. The legal issues before the Tribunal were whether the evidence provided by Mr Jones and his witnesses established a connection between his service and the onset of his conditions, and if these conditions were covered by the relevant Statements of Principles (SoP). The Tribunal examined the clinical onset of the conditions and whether they fell within the criteria set out in the SoPs for Major Depressive Disorder and Sleep Apnoea.

The Tribunal found that Mr Jones' Major Depressive Disorder did not have a clinical onset during his period of service and was not connected to his service, as the symptoms did not manifest until after he had left the defence force. Regarding Sleep Apnoea, the Tribunal concluded that the condition could not be attributed to his service since the evidence did not establish a link between his exposure to chemicals and the onset of the condition. The Tribunal also noted that Mr Jones' obesity, which was cited as a factor in the SoP for Sleep Apnoea, was due to his documented history of heavy alcohol consumption, which was unrelated to his service. Therefore, the Tribunal affirmed the decision of the Repatriation Commission that Mr Jones was not entitled to a disability pension for these conditions.

The Tribunal's decision was based on the lack of evidence establishing a connection between Mr Jones' service and the clinical onset of his conditions, as well as the absence of a relevant SoP that could support his claim. The Tribunal's review affirmed the Repatriation Commission's decision, and no further appeal was made.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Mr Jones also attributes his Sleep Apnoea to his exposure, over a long period, to a variety of harmful cleaning substances and chemicals which were regularly used in kitchens. He did not elaborate further as to specific chemicals and the effects which they had.[30][30] See transcript of hearing, pages 41, line [39] to page 42, line [12].Mr Martin’s evidence Mr Jones called Robert Martin to give evidence. He was the other Cook’s Assistant at BSW during the relevant period. He said that in his years of service, he had only seen one training officer (meaning Mr Redlinger) spend considerable amounts of time in the dining room. He explained that in smaller bases, it would be rare for an officer to spend much time in the dining room, as they would be mostly in the rations store. However, BSW was a larger and different style of base.[31] He said that Mr Redlinger tended to by-pass the kitchen and was more interested in the dining room because of the trouble that was being experienced there; he spent more time in the dining room than any other catering officer that Mr Martin had served under. Mr Martin said that Mr Redlinger would by-pass the chain of command and issue instructions directly to him and Mr Jones.[32] He agreed, however, that if an order were issued by Mr Redlinger, he would have obeyed it.[33][31] See transcript of hearing, pages 44, line [46] to page 45, line [5] and page 47, lines [14] to [45].[32] See transcript of hearing, page 46, lines [6] to [11] and page 48, lines [5] to [22].[33] See transcript of hearing, page 48, lines [1] to [3]. Mr Martin was asked by the Commission’s representative whether he recalled if there were any probity issues in the catering area. He said the situation had developed where young apprentices had failed their cooking courses and became assistants in the dining room. They had attitude problems, lacked discipline and would not take orders. Mr Martin elaborated on the troubles that were encountered in the dining room, and the apparent singling out of the civilians Mr McIntyre and Mr Hackett. He agreed with Mr Jones that they had to single those men out over others who were doing the same thing. Mr Martin and Mr Jones were asked to write up Mr McIntyre and Mr Hackett in particular. Mr Martin gave evidence that if he had been so instructed, he would have followed those orders as he recalled that he never once disobeyed an order.[34] He gave the example of Mr McIntyre failing to turn up for work for three days without giving any notification. When he finally came to work on the fourth day, Mr McIntyre proceeded to write in his times for the preceding days. Mr Martin reported that anomaly to the Squadron Leader, who noted it. Another civilian did the same thing as Mr McIntyre and when Mr Martin again reported it to the Squadron Leader, he became angry; he was only interested in what Mr McIntyre and Mr Hackett did, not the other worker. He dismissed Mr Martin from his office. Mr Martin did not know what, if any, action was taken against the second worker.[35][34] See transcript of hearing, page 51, lines [4] to [25].[35] See transcript of hearing, page 45, lines [7] to [25].

Decision

Reasons for decision

I therefore do not consider that the material before me raises any connection between Mr Jones’ defence service and his Sleep Apnoea. Similarly, I do not consider that the relevant SoP supports such a contention as the only applicable factor, obesity (referred to in s 6(a)(ii) of the SoP), was not connected to his defence service.CONCLUSION To summarise, I am not reasonably satisfied that either Mr Jones’ Major Depressive Disorder or his Sleep Apnoea were defence related. The reviewable decision is therefore affirmed.

Ratio Decidendi

Legal Principle Established

As regards the SoP concerning Sleep Apnoea, the Commission submits that Mr Jones’ obesity (the factor relied upon) was attributable to his documented history of heavy alcohol consumption, which is unrelated to service. As such, it is denied that the Sleep Apnoea condition is defence-caused.CONSIDERATION The Legislative Framework Before considering the issues in detail, it is timely to mention the key legislative provisions which are applicable in this matter. Section 120(4) of the Veterans’ Entitlements Act 1986 (Cth) effectively provides that in making determinations or decisions in matters such as this under Part IV of the Act, the Commission is to decide the matter “to its reasonable satisfaction”. That provision is to be read with s 120B of the Act. In particular, s 120B(3) relevantly provides that in applying s 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered or disease contracted was defence-caused only if the material before the Commission raises a connection between the injury or disease and some particular service rendered by the person, and there is in force a SoP determined under subsection 196B(3) or (12) “that upholds the contention that the injury, disease… is, on the balance of probabilities, connected with that service.” It is well settled that in applying s 120B(3), the Tribunal is first to consider the claim by reference to the SoP in force at the date of its decision. If the consideration is favourable to the applicant, that is the end of the matter. If, however, the consideration is not favourable to the applicant, the Tribunal is to consider the claim by reference to the SoP in force at the date of the Commission’s determination.[53][53] See Re Greenough and Repatriation Commission (2002) 70 ALD 470 at [59]. In the present case, the current SoP concerning Sleep Apnoea is made under Instrument No. 42 of 2013. As regards Depressive Disorder, the current SoP came into force on 20 July 2015 by Instrument No. 84 of 2015. Prior to that, the SoP had been made under Instrument No. 28 of 2008 (as amended by Instrument No. 41 of 2010). I deal with the provisions of the respective SoPs in greater detail later. Both the SoPs for Depressive Disorder and Sleep Apnoea relevantly use the time of clinical onset of the disease to establish a link between the period of service and the first appearance of the disease. There is “clinical onset” of a disease either when a person becomes aware of some feature or symptom to do with the disease which enables a doctor to say that the disease was present at the time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.[54] No finding of clinical onset is to be made unless all the symptoms of the disease can be shown within the relevant period.[55] Where clinical onset is an element of a factor in a SoP (as is the case here), all of the features of the disease as defined in the SoP must be present before it can be said that clinical onset has occurred.[56][54] See Repatriation Commission v Cornelius [2002] FCA 750 at [26], approving Re Robertson and Repatriation Commission (1998) 50 ALD 668 at [670].[55] See Youngnickel v Repatriation Commission [2004] FCA 1691.[56] See Repatriation Commission v Gosewinckel (1999) 59 ALD 690 at [51] to [55] and Lees v Repatriation Commission (2002) 125 FCR 331.

Division	VETERANS' APPEALS DIVISION
File Number	2014/6399
Re	Frederick Jones
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Senior Member A C Cotter
Date	20 October 2015
Place	Brisbane