the order of the Administrative Appeals Tribunal (“the Tribunal”) made on 29 November 2001 be set aside;
the matter be remitted to the Tribunal for reconsideration according to law of the following hypotheses advanced on behalf of the applicant:
i. The applicant’s intervertebral disc prolapse is connected with his relevant service because the smoking by him of thirty pack years of cigarettes before 8 December 1988 was contributed to in a material degree by, or was aggravated by, that service, or would not have occurred but for the rendering of that service; and
ii. The applicant’s depressive disorder is connected with his operational service because the disciplinary charges laid against him during the course of that service constituted the experiencing of a severe psychosocial stressor within two years of the clinical worsening of that depressive disorder;
4. the respondent pay the applicant’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 1675 OF 2001
BETWEEN:
ROBERT FRANK KATTENBERG APPLICANT
AND:
REPATRIATION COMMISSION RESPONDENT
JUDGE:
EMMETT J
DATE:
11 APRIL 2002
PLACE:
SYDNEY
REASONS FOR JUDGMENT
On 5 March 1988, the applicant (“the Veteran”) lodged a claim for a pension under Part II of the Veterans Entitlement Act 1986 (Cth) (“the Act”). On 18 August 1998, a delegate of the respondent, the Repatriation Commission (“the Commission”), accepted the Veteran’s claim in respect of certain disabilities but refused it in respect of other disabilities, including upper and lower back pain and depressive disorder. The Veteran applied to the Veterans’ Review Board (“the Board”) for review of the decision in so far as his claim was refused. On 15 June 1999, the Board affirmed the delegate’s decision.
The Veteran then lodged an application to the Administrative Appeals Tribunal (“the Tribunal”) for review of the decision of the delegate as affirmed by the Board. On 29 November 2001, the Tribunal affirmed the delegate’s decision. The Veteran now appeals to the…
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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AGLC
Kattenberg v Repatriation Commission [2002] FCA 412
Case
[2002] FCA 412
Decision Date
CaseChat Overview and Summary
The case of Kattenberg v Repatriation Commission involves the Veteran who served in the Royal Australian Navy and is appealing a decision by the Administrative Appeals Tribunal affirming a decision that he was not entitled to a pension on the grounds that his claimed diseases were not connected to his service. The appeal was brought to the Federal Court of Australia on the basis that the Tribunal made an error of law in its assessment of whether the Veteran's lumbar spondylosis, intervertebral disc prolapse, and depressive disorder were war-caused diseases. The court was required to determine if the Tribunal correctly applied the statutory framework in assessing the connection between the Veteran's claimed diseases and his service.
The court examined the statutory provisions under the Act which mandate that a disease must be connected to the Veteran's service to qualify for a pension. Specifically, it looked at the reasonable hypothesis requirement and whether the Tribunal properly considered the Standard of Proof (SoP) in relation to each disease. The court found that while the Tribunal correctly identified the Veteran's lumbar spondylosis, it did not adequately address the hypothesis that the intervertebral disc prolapse and depressive disorder were connected to the Veteran's service. The court held that the Tribunal's failure to consider these hypotheses was an error of law, as it did not follow the statutory requirements for connecting diseases to service.
As a result, the court decided to uphold the appeal in part, set aside the Tribunal's order, and remit the matter back to the Tribunal for reconsideration of the hypotheses concerning the intervertebral disc prolapse and depressive disorder. The court also ordered that the respondent pay the Veteran's costs.
Orders
Orders of the court
1.
the appeal be upheld in part;
2.
the order of the Administrative Appeals Tribunal (“the Tribunal”) made on 29 November 2001 be set aside;
3.
the matter be remitted to the Tribunal for reconsideration according to law of the following hypotheses advanced on behalf of the applicant:
i. The applicant’s intervertebral disc prolapse is connected with his relevant service because the smoking by him of thirty pack years of cigarettes before 8 December 1988 was contributed to in a material degree by, or was aggravated by, that service, or would not have occurred but for the rendering of that service; and
ii. The applicant’s depressive disorder is connected with his operational service because the disciplinary charges laid against him during the course of that service constituted the experiencing of a severe psychosocial stressor within two years of the clinical worsening of that depressive disorder;
4. the respondent pay the applicant’s costs.
Background
Background to the litigation
The Veteran then lodged an application to the Administrative Appeals Tribunal (“the Tribunal”) for review of the decision of the delegate as affirmed by the Board. On 29 November 2001, the Tribunal affirmed the delegate’s decision. The Veteran now appeals to the Federal Court of Australia pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), which permits an appeal from a decision of the Tribunal on a question of law. BACKGROUND TO THE VETERAN’S CLAIM The Veteran served in the Royal Australian Navy from 29 May 1964 to 28 May 1973. His service included three periods of operational service (within the meaning of the Act), from 17 June 1965 to 17 July 1965, from 4 August 1965 to 16 August 1965 and from 14 September 1965 to 21 October 1965. The basis of the Veteran’s claim is that, in early August 1965 when serving on HMAS Yarra, he slipped while carrying a box of provisions on the steel ladder that was used as stairs. He tried to stop himself falling by hanging on with his left hand, but he dropped the box. He fell and landed across the box, which was rigid. He lay there for a few minutes, feeling shock and pain in his lower back below the waist. He is unsure how he got up but did so. He could walk, but only with discomfort. He wrenched his arm and neck but the pain from that was not nearly as severe as the pain in his back. After the fall, the Veteran’s back, left shoulder and neck were stiff and sore, but his back was by far the worst. He said that, on a scale from zero to ten, the back pain was seven or eight, whilst the neck pain was about two. After getting up he returned to doing a normal day’s work, including polishing, scrubbing and housekeeping. For the next week or more he was struggling, because of pain and stiffness, to do his normal duties. He found it difficult to go up and down the ladders and had to rely more on pulling himself up with his hands. He had trouble going down on to his knees and getting up again in order to do scrubbing. He found that he could work if he did not have to raise and lower objects. His lower back caused problems in that regard and he moved more slowly because of the pain. He described the pain as like jabbing a hot needle into oneself. He had particular problems going up and down stairs and getting in and out of his bunk. He said that his back was “pretty bad” for two or three weeks. The Veteran did not report the fall or his pain. There was no doctor on board HMAS Yarra and he thought that any treatment that he would have received would have been to be put into a bunk. He said that, while his back was stiff and painful, he continued with his duties so as not to be seen as a malingerer. He did not want to be put into a bunk when everyone else had to do four hours on and four hours off. The Veteran told the Tribunal that he saw the injury as serious only three or four months later when he was stationed on HMAS Sydney.STATUTORY FRAMEWORK The Veteran will be entitled to the pension claimed if he demonstrates incapacity from a disease that relates to his operational service, that is to say, the disease is a war caused disease. Under s 120 of the Act, the Tribunal was bound to determine that a disease was a war caused disease unless it was satisfied, beyond reasonable doubt, that there was no sufficient ground for making that determination. Under s 120(3), the Tribunal was bound to be so satisfied if, after consideration of the whole of the material before it, it was of the opinion that that material did not raise a reasonable hypothesis connecting the relevant disease with the circumstances of the particular service rendered by the Veteran.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
EMMETT J
Pursuant to ss 120A(3) and 120A(4), unless the Authority has neither determined an SoP nor declared that it does not propose to make such an SoP in respect of the kind of disease contracted by a person, a hypothesis connecting the disease contracted by a person with the circumstances of any particular service rendered by the person will be reasonable only if there is in force, in respect of the relevant disease, an SoP that upholds the hypothesis. THE TRIBUNAL’S DECISION Before the Tribunal, the Veteran contended that he was entitled to a pension under the Act in respect of incapacity from diseases that he claimed are war caused diseases, being:· lumbar spondylosis and cervical spondylosis;· intevertebral disc prolapse;· depressive disorder.Each of those diseases was said to have resulted, to a greater or lesser extent from the fall while on HMAS Yarra. There was an SoP in force in relation to each of those diseases. Accordingly, it was incumbent upon the Tribunal to consider whether the relevant SoP upheld a hypothesis connecting the relevant disease of the Veteran with the circumstances of his operational service. SPONDYLOSIS In dealing with the Veteran’s claim of back pain, the Tribunal referred to the history given to a number of medical practitioners by the Veteran. It concluded that, on the material presented to the Tribunal by the Veteran and the material in the medical histories, there was “discrepancy at the edges to do with the lingering effect, or otherwise, of the impact of the injury”. However, the Tribunal found that the Veteran suffers from lumbar spondylosis. It then proceeded to consider the hypothesis advanced on behalf of the Veteran that that disease was a war caused disease. The Tribunal examined the hypothesis in the light of SoP 27 of 1999. For the purposes of SoP 27 of 1999, “lumbar spondylosis” is defined as meaning:“degenerative changes affecting the lumbar vertebrae and/or intervertebral discs, causing local pain and stiffness and/or symptoms and signs of lumbar cord, cauda equina or lumbosacral nerve root compression, attracting ICD-9-CM Code 721.3, 721.42 or 722.52.”ICD-9-CM Code is defined by reference to the Australian version of the International Classification of Diseases as published by the University of Sydney. The relevant effect of clauses 4 and 5 of SoP 27 of 1999 is that if, before the clinical onset of lumbar spondylosis, a veteran suffers a trauma to the lumbar spine that is related to any relevant service rendered by the Veteran, a reasonable hypothesis will be raised connecting the lumbar spondylosis with the circumstances of that relevant service. The term “trauma to the lumbar spine” is defined as meaning:“a discrete injury to the lumbar spine that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain and tenderness, and either altered mobility or range of movement of the lumbar spine. These acute symptoms and signs must last for a period of at least seven days following their onset…”