Martin and Military Rehabilitation and Compensation Commission (Veterans' entitlements)

[2023] AATA 1477

Martin and Military Rehabilitation and Compensation Commission (Veterans' entitlements) [2023] AATA 1477 (1 June 2023)

Division:VETERANS' APPEALS DIVISION

File Number(s):      2022/0506

Re:Craig Paul Martin

APPLICANT

AndMilitary Rehabilitation and Compensation Commission

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM KC

Date:1 June 2023

Place:Sydney

The decision under review is affirmed.

..................................[SGD]......................................

Deputy President B W Rayment OAM KC

CATCHWORDS

VETERAN’S ENTITLEMENTS – Military Rehabilitation and Compensation Act 2004 (Cth)

s 80 – claim for additional payment for eligible young person – calculation of relevant date – date of conception not able to be proved on balance of probabilities – act of grace payment

LEGISLATION

Acts Interpretation Act 1901 (Cth)

Military Rehabilitation and Compensation Act 2004 (Cth)

SECONDARY MATERIALS

Al-taee, Hanan and Ban J Edan, ‘Estimation of day-specific probabilities of conception during natural cycle in women from Babylon’ (2018) 11(4) International Journal of Fertility and Sterility 314

Blenford, Natalie, ‘How long is pregnancy? The weeks, months, and trimesters in full-term pregnancy explained’, Flo Health (Web Page, 19 January 2023) < on Obstetric Practice, American College of Obstetricians and Gynaecologists, ‘Committee Opinion Number 700 – Methods for Estimating the Due Date’ (May 2017)

Comte, Fabienne et al, ‘Deconvolution estimation of onset of pregnancy with replicate observations’ (2011) hal-00588235v2f

Explanatory Memorandum, Military Rehabilitation and Compensation Bill 2003 (Cth)

Fung, Russell et al, ‘Achieving accurate estimates of fetal gestational age and personalised predictions of fetal growth based on data from an international prospective cohort study: a population based machine learning study’ (2020) 2(7) The Lancet Digital Health E368

Jukic, A M et al, ‘Length of human pregnancy and contributors to its natural variation’ (2013) 28(10) Human Reproduction 2848

Mustafa, Ghulam and Richard J David, ‘Comparative accuracy of clinical estimate versus menstrual gestational age in computerized birth certificates’ (2001) 116 Public Health Reports 15

Robinson, Hugh P, ‘Sonar measurement of fetal crown-rump length as means of assessing maturity in first trimester of pregnancy’ (1973) 4 British Medical Journal 28

Schink, Tania, ‘Estimating the beginning of pregnancy in German claims data: development of an algorithm with a focus on the expected delivery date’ (2020) 8 Frontiers in Public Health 350

Sladkevicius, P et al, ‘Ultrasound dating at 12-14 weeks of gestation. A prospective cross-validation of established dating formulae in in-vitro fertilized pregnancies’ (2005) 26 Ultrasound Obstet Gynecol 504

Stirnemann, Julien J et al, ‘Day-specific probabilities of conception in fertile cycles resulting in spontaneous pregnancies’ (2013) 28(4) Human Reproduction 1110

Tunon, K et al, ‘Gestational age in pregnancies conceived after in vitro fertilization: a comparison between age assessed from oocyte retrieval, crown-rump length and biparietal diameter’ (2000) 15 Ultrasound Obstet Gynecol 41

REASONS FOR DECISION

Deputy President B W Rayment OAM KC

1 June 2023

1. This review concerns a claim under s 80 of the Military Rehabilitation and Compensation Act 2004 (the Act) made by the father of an infant born on 30 July 2020, Koa, who was conceived in late October 2019.

2. Section 80 is in the following terms:

   80 Additional amounts payable if maximum compensation paid

   1This section applies to a person (the impaired person) who has been paid, or is entitled to be paid, compensation under this Part if the Commission has determined that the degree of impairment suffered by the person as a result of one or more service injuries or diseases constitutes at least 80 impairment points.

   2The Commonwealth is liable to pay the impaired person $60,000 for each person who is both a dependant of the impaired person and an eligible young person at the later of:

   (a)the date determined by the Commission to be the date on which the impairment suffered by the impaired person constitutes at least 80 impairment points; or

   (b)either:

   (i)     if the person has a single service injury or disease—the date on which a claim was made under section 319 for acceptance of liability for the injury or disease; or

   (ii)    otherwise—the date on which the most recent claim was made under section 319 for acceptance of liability for one of the service injuries or diseases concerned.

   Note:   The amount of $60,000 is indexed under section 404.

   3The amount specified in subsection (2) is also payable in respect of a child of the impaired person:

   (a)who was born alive on or after the later of those times but who was conceived before that time; or

   (b)who was adopted on or after the later of those times but in respect of whom adoption proceedings were begun before that time.

3. The applicant and his wife havehas three children and Koa is the youngest. Both of the elder siblings have been provided benefits under s 80.

4. The applicant was unrepresented before the Tribunal, and Ms Scriva, a Senior Associate from Sparke Helmore Lawyers appeared for the respondent.

5. As will appear, it is necessary to seek to construe s 80 in a number of respects, because as drafted, it may not achieve its evident object.

6. The application of s 80 is another major difficulty in the case. That is because of deficiencies in the section and the need for the evidence in the case to prove matters about the exact date of conception of an infant. This is a case of what medical researchers call “spontaneous conceptions”. That is, conception dates of infants born otherwise than as a result of IVF. The exact date of conception can only be known approximately. Yet before the respondent and before the Tribunal, the date of conception needs to be proved on the balance of probabilities, and as will appear, no date more probable than not can be proved to that standard. That has persuaded me to suggest that section 80 be amended, so as to treat children of injured or diseased service personnel fairly and equitably.

7. Because it seems to me that the result of the review is inequitable, these reasons conclude with a recommendation that the father of the child make a last resort application for an act of grace payment.

8. I begin with the proper construction of s 80.

9. As is made clear by s 80(1), the section is concerned with each child who meets certain criteria being a child of a person who has been determined by the Commission to be entitled to compensation for one or more service injuries or diseases constituting 80 impairment points. Such persons are persons gravely impaired as a result of service in one of the armed forces.

10. Section 80(2) specifies that a dependent eligible child as at a date being the later of two dates described in s 80(2)(a) or (b) are the children in question. Those children are necessarily already born.

11. The purpose of s 80 if the Act is to make provision for dependents (such as children) of persons who suffer compensable injuries or diseases, and have been determined to have impairment points of at least 80 points under the Act. The significance of 80 points is that the section is for the benefit of dependants of persons who were gravely injured during their military service. The section is directed to such dependants because of a recognition that their impaired parent may not otherwise be able to provide as he or she would wish for the dependants because of their compensable injuries or diseases.

12. I should note that the respondent through its legal representative submitted that the words of s 80(2)(a) refer, not to the date when a determination was made by the Commission or decision-maker that 80 impairment points were involved (here 24 October 2019) but to some earlier date when the underlying physical condition of the applicant was such that, when the matter was later considered by the Commission, it concluded that 80 impairment points or more was involved.

13. Having reconsidered that submission, it seems to me that the better meaning of s 80(2)(a) is that it identifies the time appliable under s 80(2)(a) as the date of the Commission’s determination that 80 points or more were involved. My reasons for that view are that it seems to me that the natural meaning of the words used in the subsection involves focus on the determination of the Commission that the impairment suffered constitutes 80 impairment points.

14. Secondly, that is the meaning of similar words used in s 80(1).

15. Thirdly, the Explanatory Memorandum for clause 80 of the Military Rehabilitation and Compensation Bill 2003 which was in the same terms as the present s 80 states:

    Clause 80 – Additional amounts payable if maximum compensation paid

    This clause provides that whenever a person’s impairment from service injuries or diseases constitutes at least 80 impairment points, additional compensation of $61,800 is payable to any dependants who are eligible young persons on the later of the date the Commission determined the impairment was at least 80 points and the date on which claim was made for the condition which led to that impairment.

    This payment can also be made for a son or daughter conceived before the date of the claim and born live after that date and in situations where adoption proceedings were commenced before that date and were concluded after that date.

16. In accordance with s 15AB of the Acts Interpretation Act 1901, regard may be had to the Explanatory Memorandum and in my opinion it tends to confirm the meaning I have assigned to s 80(2)(a).

17. The reason for subsection (2) providing for the relevant date to be the later of two specified dates appears clearly to be to expand the category of dependants who will be entitled under the provision.

18. The date determined under s 80(2) will determined not only which of the dependant eligible young persons who will benefit from section 80, but also which of the children of the impaired person who were unborn at the relevant date, namely those who were conceived before the relevant date. Such persons must, according to s 80(3) be conceived before the relevant date ascertained under s 80(2). Also, s 80(3) caters for adopted children, adopted after the relevant date, but whose adoption proceedings were begun before the relevant date.

19. There are at least two drafting problems about s 80. In the first place, the evident intention of s 80(2) to expand the number of those dependants fails, because the claim made by or on behalf of the impaired person will necessarily precede the date when the Commission makes a determination that the impaired person’s impairments total at least 80 points. The language of s 80(2)(b) itself defeats the intention to expand the relevant class of dependants. The date of the latest claim for acceptance of liability “for one of the service injuries or diseases concerned” seems to be a reference to those service injuries or diseases taken into account in determining that the impaired person has 80 impairment points.

20. Similarly, an impaired person with only one service injury or disease, who has been found to have 80 impairment points, will always in practice have made a claim for that injury or disease before the Commission makes a determination that 80 impairment points are involved.

21. The facts of this case have led me to consult relevant medical literature and that work has persuaded me that in this matter (and no doubt in many other factual scenarios) proof on the balance of probabilities will be impossible to obtain of the date of conception for the purposes of s 80(3).

22. In the present case, there is no doubt that Mr Martin satisfied section 80(1). He was gravely injured as a result of service injuries and diseases and the Commission so determined on 24 October 2019. This case is brought by Mr Martin for his infant son Koa, who was born on 30 July 2020. His two elder children have already received a benefit under s 80, and his object in challenging the reviewable decision was to have his third child receive the same benefit.

23. Today, Koa is aged two years, and his third birthday will happen on 30 July this year.

24. Two facts are known bearing on the question of the date of Koa’s conception. The first is that he was born on 30 July 2020. The second is that in the first trimester of his mother’s pregnancy, an ultrasound was done of him in the womb, and the radiologist reported on 29 January 2020 that his foetal age was 13 weeks and three days.

25. Medical professionals use a rule of thumb, or what is described as a “conventional” view that the period which elapses between conception and birth is 40 weeks or 280 days. Counting backwards from his date of birth, on that basis, his conception occurred on the very day when the Commission made its determination that Mr Martin has at least 80 impairment points, 24 October 2019. On that view, his conception was one day late, having regard as s 80(3).

26. As to the ultrasound report, counting backwards from its date, one derives 27 October 2019. This view would entail that his conception was four days too late.

27. However, medical literature does not support the view that either 24 October 2019 or 27 October 2019 was the correct date of Koa’s conception.

28. The “conventional” view that gestation lasts 280 days is but an approximation of the correct period of gestation. For example, an article entitled ‘How long is pregnancy? The weeks months and trimesters in full-term pregnancy explained’ states that it was reviewed by Dr Jennifer Boyle, obstetrician and gynaecologist, Massachusetts General Hospital. The article states that “a full-term baby is one that is born between 39 weeks, (the week before your due date) and 40 weeks and 6 days”.[1] Applying the additional 6 days to the date of birth would change the date of conception of Koa to 18 October 2019. The statement that no two pregnancies are the same and that pregnancies vary in length is made in that article, and other publications.[2]

    [1] Natalie Blenford, ‘How long is pregnancy? The weeks, months, and trimesters in full-term pregnancy explained’, Flo Health (Web Page, 19 January 2023) <

    [2] See, eg, Julien J Stirnemann et al, ‘Day-specific probabilities of conception in fertile cycles resulting in spontaneous pregnancies’ (2013) 28(4) Human Reproduction 1110.

29. The literature about the reliability of ultrasound measurements suggests that the date fixed by the ultrasound report may be wrong by 5-7 days earlier or later than the radiologist’s report.  For example, there is a Committee Opinion by the American Institute of Ultrasound in Medicine beneath the heading ‘Clinical Considerations in the First Trimester’, which cites four articles for the proposition that up to and including 13 6/7 weeks of gestation, gestational age assessment based on measurement of the crown-rump length (CRL) has an accuracy of + or – 5-7 days.[3] Two of those articles refer to a date of conception established by IVF records.[4]

    [3] Committee on Obstetric Practice, American College of Obstetricians and Gynaecologists, ‘Committee Opinion Number 700 – Methods for Estimating the Due Date’ (May 2017).

    [4] K Tunon et al, ‘Gestational age in pregnancies conceived after in vitro fertilization: a comparison between age assessed from oocyte retrieval, crown-rump length and biparietal diameter’ (2000) 15 Ultrasound Obstet Gynecol 41; P Sladkevicius et al, ‘Ultrasound dating at 12-14 weeks of gestation. A prospective cross-validation of established dating formulae in in-vitro fertilized pregnancies’ (2005) 26 Ultrasound Obstet Gynecol 504.

30. An evident purpose of these articles is to highlight the difficulty of ascertaining a date of spontaneous conception.[5]

    [5] See generally Hanan Al-taee and Ban J Edan, ‘Estimation of day-specific probabilities of conception during natural cycle in women from Babylon’ (2018) 11(4) International Journal of Fertility and Sterility 314; Fabienne Comte et al, ‘Deconvolution estimation of onset of pregnancy with replicate observations’ (2011) hal-00588235v2f ; Russell Fung et al, ‘Achieving accurate estimates of fetal gestational age and personalised predictions of fetal growth based on data from an international prospective cohort study: a population based machine learning study’ (2020) 2(7) The Lancet Digital Health E368; A M Jukic et al, ‘Length of human pregnancy and contributors to its natural variation’ (2013) 28(10) Human Reproduction 2848; Ghulam Mustafa and Richard J David, ‘Comparative accuracy of clinical estimate versus menstrual gestational age in computerized birth certificates’ (2001) 116 Public Health Reports 15; Hugh P Robinson, ‘Sonar measurement of fetal crown-rump length as means of assessing maturity in first trimester of pregnancy’ (1973) 4 British Medical Journal 28; Tania Schink, ‘Estimating the beginning of pregnancy in German claims data: development of an algorithm with a focus on the expected delivery date’ (2020) 8 Frontiers in Public Health 350.

31. The date of conception is normally unknown with precision, except as mentioned above, when the fertilisation of the mother’s egg occurs in an IVF laboratory, of which there is no suggestion in this case. Thus, even on the basis of the information before the Tribunal, Koa may or may not have been conceived before the relevant date. Proof on the balance of probabilities is unavailable in this case, and will be unavailable in most cases. It is that fact that leads me to be unsatisfied that Koa has an entitlement under the section in its present form. I regard both the failure of subsection (2) to achieve its own evident object of expanding the class of entitled infants explained above and its choice of the date of conception in s 80(3) as matters suggesting that the section ought to be amended at least in those respects.

32. Thus, Koa may in fact have a direct entitlement under s 80, but that fact cannot be known or proved. In any event, section 80 calls for amendment in my opinion and I am persuaded that the result of this review is inequitable, anomalous, and has an unacceptable impact on Koa and his father. Moreover, from the point of view of the child himself, even if his date of conception according to some method of calculation were found to be one day or a few days too early, there is no evident reason why his entitlement should be different from that of his two siblings. These matters may be considered by the Department of Finance to involve special circumstances within the power of the Department to make an act of grace payment equivalent to the indexed amount which otherwise would have led to provision being made for Koa. I therefore recommend to the applicant that he make an application to the Department of Finance for an act of grace payment.

33. For reasons explained above, the application for review is to be affirmed on account of the terms of the section and of the impossibility of proving, on way or the other the date of conception of Koa.

I certify that the preceding 33 (thirty -three) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM KC

....................................[SGD]....................................

Associate

Dated: 1 June 2023

Date(s) of hearing:	9 November 2022 & 16 March 2023
Date final submissions received:	20 April 2023
Applicant:	In person
Solicitors for the Respondent:	Ms M Scriva, Sparke Helmore Lawyers