McKenna v Repatriation Commission
[1995] FCA 936
•22 NOVEMBER 1995
C A T C H W O R D S
ADMINISTRATIVE LAW - veterans' entitlements - application for veterans' disability pension at special rate - method of calculation of impairment rating for intermittent disorders when the severity, duration and frequency of discrete attacks vary - Chapter 14 Guide to the Assessment of Rates of Veterans' Pensions (4th ed.) - whether error of law.
Veterans' Entitlements Act 1986 (Cth) - s.24
BERNARD DANIEL McKENNA v REPATRIATION COMMISSION
No VG 116 of 1995
Davies, Lockhart & Spender JJ
22 November 1995
Sydney (heard in Melbourne)
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIAN DISTRICT REGISTRY ) No VG 116 of 1995
)
GENERAL DIVISION )
)
On appeal from the Veterans' Division of the Administrative Appeals Tribunal
BETWEEN: BERNARD DANIEL McKENNA
Applicant
AND: REPATRIATION COMMISSION
Respondent
Coram: Davies, Lockhart & Spender JJ
Date: 22 November 1995
Place: Sydney (heard in Melbourne)
MINUTES OF ORDER
THE COURT ORDERS THAT:
1. The appeal be allowed.
2.The decision of the Administrative Appeals Tribunal be set aside.
3.The case be remitted to the Administrative Appeals Tribunal to be heard and decided again with or without the hearing of further evidence.
4.The respondent pay the 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 )
)
VICTORIAN DISTRICT REGISTRY ) No VG 116 of 1995
)
GENERAL DIVISION )
)
On appeal from the Veterans' Division of the Administrative Appeals Tribunal
BETWEEN: BERNARD DANIEL McKENNA
Applicant
AND: REPATRIATION COMMISSION
Respondent
Coram: Davies, Lockhart & Spender JJ
Date: 22 November 1995
Place: Sydney (Heard in Melbourne)
REASONS FOR JUDGMENT
Davies & Spender JJ: This is an appeal from a decision of the Administrative Appeals Tribunal by which the Tribunal held that the present applicant, Bernard Daniel McKenna, was entitled to a veterans' disability pension at 50% of the general rate from 1 May 1989 to 17 January 1992 and at 60% of the general rate thereafter. In its decision, the Tribunal increased the percentage rate which had been payable to Mr McKenna but, nevertheless, did not arrive at the figure of 70% of the general
rate, which was a precondition to Mr McKenna's entitlement to obtain a special rate of pension under s.24 of the Veterans' Entitlements Act 1986 (Cth). The appeal, which is brought under s.44 of the Administrative Appeals Tribunal Act 1975 (Cth), is limited to a question of law.
The question of law advanced by Mr M. Croyle, counsel for Mr McKenna, was that the Tribunal misinterpreted a provision of the Guide to the Assessment of Rates of Veterans' Pensions ("the Guide"). The Guide, which has been approved by the Minister for Veterans' Affairs, is binding on administrative decision-makers. Section 29(4) of the Veterans' Entitlements Act requires the Commission, the Board and the Administrative Appeals Tribunal to assess incapacity in accordance with the relevant provisions of the Guide.
Mr McKenna suffered from a condition of intermittent vertigo which resulted in intermittent impairment. The Tribunal found that Mr McKenna had suffered minor attacks which occurred every two days or so, medium to severe attacks which occurred every week or so and very severe attacks which occurred every two to three months. Paragraph 77 of the reasons of the Tribunal read:-
"77.Accordingly, the medium to severe attacks must be taken to occur every week or so, and the very severe ones every two to three months. The minor attacks according to the records kept by the applicant during August and September this year, occurred every two days. This, he said, was consistent with the pattern of attacks over a number of previous years."
It was conceded that the condition of vertigo was war-caused.
Chapter 14 of the Guide was headed "Intermittent Impairment" and dealt with intermittent disorders that remained at a low level between discrete episodes of impairment. The Guide provided, inter alia:-
"Intermittent disorders are those disorders that remain at low level between discrete episodes of increased impairment. They are rated by reference to severity, duration and frequency of attacks.
.Severity during an attack is defined in the descriptions below.
.Duration is defined in the descriptions below.
.Frequency is determined by the number of affected days in a year.
An impairment rating using the above three factors is to be made by first coding severity and duration into an intermittent grading. The code is then combined with frequency, using Table 14.1.4, to give the rating.
When attacks vary in severity, duration or frequency, an average for each factor must be estimated. Only one rating for a given disorder may be made from Table 14.1.4. Further, the impairment rating is not to be combined with any other rating for the same disorder.
..."
As can be seen, a rating was to be derived from the severity, duration and frequency of attacks.
Table 14.1.1 dealt with the issue of severity and read:-
"LevelCriteria
0. Minor symptoms that are easily tolerated.
I. Mild to moderate symptoms that are irritating or unpleasant but that rarely prevent completion of any activity. Symptoms may cause loss of efficiency in some activities.
II. More severe symptoms, that are distressing, but prevent few everyday activities. Loss of efficiency is discernible elsewhere. Self-care is unaffected and independence is retained.
III. Loss of efficiency is discernible in many everyday activities. Some elements of self-care are restricted but, in most respects, independence is retained. Bed-rest is often necessary during an attack.
IV. Major restrictions in many everyday activities. Capacity for self-care is increasingly restricted, leading to partial dependence on others.
V. Most everyday activities are prevented. Dependent on others for many kinds of self-care. Able to be maintained at home only with considerable difficulty, or hospital admission is required.
VI. Total incapacity. Unconscious or delirious. Self-care is impossible."
The Tribunal considered that the level III was the appropriate level. The Tribunal said:-
"88.... And we agree with Mr Croyle that the symptoms suffered by the applicant during the worst of his attacks - those which occur only once every 2 or 3 months - would bring him within level IV. The medium attacks, which he suffers every week or so, would probably fall within level III. And his minor attacks within level II, or sometimes level I. In other words, his symptoms are so variable as to bring him anywhere in the criteria up to and including level IV.
89.The question, then, is how to average such a wide range of complaints. If a purely numerical approach were to be adopted, then the applicant would probably fall within level II, for his low level attacks are much more frequent than his severe ones. But this gives insufficient weight to his severe attacks, which are very crippling indeed. It would be unfair to the applicant if these were not allowed to tilt the balance towards a higher level of severity.
90.In the result, we think that a fair averaging of the applicant's symptoms would place him somewhere between levels II and III. Applying, as we must, a beneficial approach to these tables, we give him a rating of III. This is an appropriate rating, we believe, as it accurately represents the severity of the applicant's medium attacks."
It will be noted that, in arriving at the appropriate level, the Tribunal necessarily had regard to both the duration and the frequency of attacks, for these were not totally irrelevant to the questions which levels II, III and IV posed. They formed a part of the picture upon which the effect of the attacks on Mr McKenna's everyday activities, self-care and independence was assessed. Nevertheless, the appropriate level could, in the circumstances of Mr McKenna's case, be judged from the total picture of the complaint and from its effect upon Mr McKenna's activities and his ability to cope rather than from any specific aspect of duration or frequency. The notes to Table 14.1.1 specifically stated that "Ratings are based on the activities which the veteran is physically unable to perform." and so required the Tribunal to turn its attention to the effect of the complaint upon the veteran and his activities.
Approaching the matter in a global way, the Tribunal concluded that Mr McKenna's circumstances fell somewhere between Level II and Level III and, bearing in mind an instruction earlier given by the Guide that "When a disorder can be given more than one rating from a table, the highest is used", the Tribunal adopted the higher level.
Table 14.1.2 provided:-
"Description Duration
TransientLasting up to and including five minutes.
ShortLasting more than five minutes but less than 30 minutes.
MediumLasting from 30 minutes to four hours.
Prolonged Lasting more than four hours."
The Tribunal necessarily had to adopt an average as Mr McKenna's attacks varied in duration. The Tribunal concluded that the "Medium" duration should be adopted. The Tribunal said:-
"94.The evidence, in our view, compels a finding that the vast majority of the applicant's attacks last less than four hours. On the other hand, all but the most minor of them last well beyond 30 minutes. Accordingly, we would assess them as being of medium duration."
The Guide provided that an intermittent grading code was to be obtained using Table 14.1.3 which read:-
"TABLE 14.1.3 - INTERMITTENT GRADING CODE"
Description Severity Level
O I II III IV V VI
Transient A A A B C C F
Short A A C C D E H
Medium A B C D E H I
Prolonged A C D F G I J"
By combining Level III with the "Medium" duration, a grading code of D was obtained under Table 14.1.3.
The Guide then required that an impairment rating be assessed in accordance with the intermittent grading code and Table 14.1.4 which read:-
TABLE 14.1.4 - INTERMITTENT IMPAIRMENT
Frequency (affected days/year)
2+ 5+ 10+ 20+ 40+ 100+
Intermittent
Grading Code Impairment Rating
A - - - - - -
B - - - - - 5
C - - - - 5 10
D - - - 5 10 20
E - - - 5 10 30
F - - 5 5 10 30
G - - 5 10 20 30
H - - 5 10 30 50
I - 5 10 30 50 70
J 5 10 20 40 70 90"
In applying this Table, the Tribunal arrived at an impairment rating of 10 by applying to the intermittent grading code "D" the frequency of "40+". Had the Tribunal applied a frequency of "100+", the Tribunal would have arrived at an impairment rating of 20%, from which a general rate of 70% or more of pension may have been derived.
It will be noted that the Tribunal, in paragraph 77 of its reasons, held that Mr McKenna's minor attacks occurred every two days. Therefore, the actual frequency of attacks exceeded 100 per year. That is confirmed by paragraph 101 of the Tribunal's reasons in which there was a specific finding that Mr McKenna's minor attacks had a frequency of "100+" per annum.
The issue is whether the Tribunal was correct in its reading of the Guide when, in applying Table 14.1.4, it applied the frequency of the medium attacks and disregarded the frequency of the minor attacks. The case for the applicant was that the Tribunal ought to have adopted the actual frequency of the attacks. Mr Croyle referred to the fact that severity, duration and frequency were separately defined or determined and that the Guide provided, "Frequency is determined by the number of affected days in the year." Mr Croyle also pointed out that a specific table was provided for the aspect of frequency. It is not surprising that this is so as the frequency of attacks is a factor distinct from their duration, and a factor distinct from their severity. One would expect the frequency of attacks to be brought into the calculation in a specific way. The frequency of attacks will tend to affect a veteran differently from their duration.
We agree with Mr Croyle's submissions that Tables 14.1.1, 14.1.2 and 14.1.4 should each be given its full weight and that each calculation should not be limited by or affected by the result of a calculation made under another Table. It is right to acknowledge that duration and frequency of attacks are both factors which play a part in the adoption of the appropriate level under Table 14.1.1 and Table 14.1.2. However, the Guide intends that each factor will be given a specific part to play in the rating. Just as the adoption of Level III under Table 14.1.1 does not determine the average duration under Table 14.1.2, so the adoption of a Medium duration under that Table should not govern the figure for frequency applied under Table 14.1.4.
In our opinion, the sentence "When attacks vary in severity, duration or frequency, an average for each factor must be estimated" is not to be read as requiring that, when attacks vary in either severity or duration or frequency, there should be hypothesised to be an average attack having a certain level of severity, duration and frequency. To do that would, in many cases, require the decision-maker to proceed upon a purely hypothetical basis, for the average between occasional severe attacks and frequent minor attacks could be medium attacks which might rarely occur. We are of the opinion that, as far as possible, the Guide is to be applied by reference to actual attacks suffered by the veteran, not by reference to a
hypothetical or deemed situation. The Guide places emphasis upon loss of function as a basis for assessment and provides a means of compensating for the loss of ability to perform everyday functions. It is therefore necessary to relate the Guide to the actual facts of the case.
It follows, in our opinion, that the Tribunal erred by assessing frequency by reference only to the medium attacks from which Mr McKenna suffered and by excluding from the calculation the more minor attacks which occurred with a great deal more frequency. This error was an error in the interpretation of the Guide, which is an error of law.
Counsel for the Repatriation Commission, Mr J. Lenczner, submitted that the Tribunal's findings were findings of fact and that it was entitled to disregard the minor attacks as insignificant. Mr Lenczner submitted that it was for the administrative decision-maker to determine what episodes or attacks were to be taken into account in the calculation of frequency. However, we do not read the Tribunal's decision as rejecting any of Mr McKenna's attacks as being so insignificant as not to be counted. We note that Table 14.1.2 expressly assigns a duration classification to transient episodes lasting up to and including 5 minutes. In our opinion, the Tribunal arrived at its decision not by omitting insignificant attacks but as the result of adopting an incorrect interpretation of the Guide.
For these reasons, the appeal must be allowed. The decision of the Tribunal should be set aside and the matter remitted to the Administrative Appeals Tribunal to be heard and decided again with or without the hearing of further evidence. The respondent should pay the costs of the appeal.
I certify that this and the preceding 9 pages
are a true copy of the reasons for judgment of the Court:
Associate:
Date: 22 November 1995
IN THE FEDERAL COURT OF AUSTRALIA)
)
VICTORIAN DISTRICT REGISTRY) )No. VG 116 of 1995
)
GENERAL DIVISION )
ON APPEAL FROM OF THE ADMINISTRATIVE APPEALS TRIBUNAL, VETERANS' DIVISION
BETWEEN:BERNARD DANIEL McKENNA
Applicant
AND:REPATRIATION COMMISSION
Respondent
COURT: Davies, Lockhart and Spender JJ.
DATE: 22 November 1995
PLACE: Sydney (Heard in Melbourne)
REASONS FOR JUDGMENT
LOCKHART J.
The relevant facts and statutory provisions appear from the reasons for judgment of Davies and Spender JJ., so I shall not recite them.
The appeal turns on the construction and application of Chapter 14 of the Guide to the Assessment of Rates of Veterans' Pensions, 4th ed., ('GARP'). GARP was prepared by the Repatriation Commission ('the Commission') pursuant to s. 29(1) of the Veterans' Entitlements Act 1986 ('the Act') which was approved by the Minister for Veterans' Affairs in accordance with s. 29(3) of the Act on 17 June 1994.
Chapter 14 relates to 'Intermittent Impairment', the relevant provisions of which are set out in the judgment of Davies and Spender JJ. The application of Chapter 14 requires that four exercises be carried out. The first exercise is, an 'Intermittent Attack Severity' rating (Table 14.1.1) ranging from 'minor symptoms that are easily tolerated' (level O) to 'Total incapacity. Unconscious or delirious. Self-care is impossible.' (level VI)
The Commission is required to determine over the relevant period (a year, or if the period is less than one year, presumably the lesser period) an average by examining each attack during the period, assessing the severity of each attack and over the whole period determining what on average is the relevant level of severity. In this case the Tribunal determined the relevant level as 'Loss of efficiency is discernible in many everyday activities. Some elements of self-care are restricted but, in most respects, independence is retained. Bed-rest is often necessary during an attack.' (Level III)
Although in this case, the Tribunal determined the relevant level of severity of attack as III, there may in fact be no particular attack that falls within the criteria of III. It is simply an average that is struck during the relevant period.
In the course of determining the factor of severity the Commission will of necessity have to look at the number of
occasions during the period in which the attacks occurred and their frequency. But this is a different exercise from determining the second exercise, i.e. the duration of the intermittent attacks.
The Commission having determined the severity rating under Table 14.1.1 on an averaging basis then must turn to Table 14.1.2 'Intermittent Attack Duration'. What the Commission must do here is to examine each of the attacks during the relevant period and determine for how long it lasted. There are four relevant descriptions: 'Transient', 'Short', 'Medium' and 'Prolonged'. 'Transient' is 'Lasting up to and including five minutes' and 'Prolonged' is 'Lasting more than four hours'; the other two are in between. The Commission must then assess an average of the duration of the attacks throughout the relevant period. For example, if there are say 40 attacks during the year, ten of which lasted for more than five but for less than thirty minutes, 20 lasting more than 30 minutes but less than 4 hours, and five lasting more than four hours, the Commission has to do its best to assess an average duration of attack. It does this without any reference whatever to the severity of the attacks. That is the first exercise which preceded the second exercise and which was carried out by the application of the earlier Table 14.1.1. That is to say, to assess the duration of attacks the Commission looks to the attacks irrespective of their degree of severity. In the present case the Commission determined
the 'Intermittent Attack Duration' as 'Medium'.
What the Commission must not do, in my opinion, in determining the duration of the attack under Table 14.1.2, is to have regard only to the attacks that have fallen within the average level of severity attacks (Table 14.1.1) (in this case Level III) and ignore the rest of the attacks. This is not an exercise that the Table permits. Indeed, it would defeat the purpose of the exercise. All attacks during the relevant period must be taken into account to determine the average degree of severity and all attacks must be taken into account to determine the average duration of the attacks.
Then comes the third exercise: 'impairment rating'. The Commission determines the 'impairment rating' in two stages. First, the Commission determines the 'Intermittent Grading Code' (Table 14.1.3); and this is done by considering the average which it has previously struck of the severity of attacks and the average of the duration of the attacks and then applying the prescribed table. For example, in this case the average severity was 'Level III' and the average duration was 'Medium', hence the impairment severity level is determined as 'D'.
Having performed this third exercise and determined the 'Intermittent Grading Code', the Commission turns to the final exercise in Table 14.1.4 to determine the 'Intermittent
Impairment'. This is the final stage of the exercise. It is achieved by applying the 'Intermittent Grading Code' (in the present case 'D') to the frequency of the attacks, to be determined by taking the number of affected days in a year ranging from '2+' to '100+' in accordance with table 14.1.4. This is purely a mathematical exercise. It is irrelevant for the purpose of this final exercise to look again at the level of the severity or duration of the attacks. Those two exercises were done earlier under Tables 14.1.1 and 14.1.2, which involved the determination of an average. Having arrived at the 'Intermittent Grading Code' under Table 14.1.3, the Commission simply looks at each day during the relevant period when there was an attack, whatever the degree of severity or duration may have been. Expressed another way, 'Intermittent Impairment' (Table 14.1.4) is arrived at by combining 'Frequency' and 'Intermittent Grading Code', a value arrived at from the combination of weighted value given to the severity level and duration description of the discrete attacks of vertigo.
Table 14.1.4 requires that two unrelated and distinct concepts be combined according to a formula which then yields a value called an 'Impairment Rating'.
In this case, by taking the 'Intermittent Grading Code' as 'D' and there being over 100 days in the relevant period when the applicant was affected, one arrives at an impairment
rating of '20'. That is the impairment rating which should have been reached in the present case.
No challenge was made to the Tribunal's approach to the determination of 'Intermittent Attack Severity' or 'Intermittent Attack Duration' or 'Intermittent Grading Code'. Only the fourth stage of the exercise (applying Table 14.1.4) was challenged by the applicant.
It was not permissible, in my opinion, for the Tribunal to engage in the exercise which it did as reflected in paragraph 98 of its reasons for decision. That paragraph reads as follows:
"98.It goes without saying that the same type of attack must be used when assessing severity, duration and frequency. And this is where the applicant faces serious difficulties. For it was through averaging his attacks upward from the minor episodes in order to place the focus upon the medium attacks, that he was able to achieve an intermittent grading of "D". But the attacks at this level occur less frequently than the minor attacks. They no doubt occur more than 40 times a year, but considerably less than 100. As such, the applicant would be entitled to only 10 overall impairment points for his recurrent vertigo. And we should say here that the whole of the applicant's case, as it now transpires, is dependent upon his obtaining a higher rating than 10 for this condition."
The Tribunal erred in applying Table 14.1.4 in that it '(i) separated each of the three types of attacks suffered by
the applicant which it had previously identified; (ii) identified how many times a year the applicant suffered an attack of each particular type which in the Tribunal's opinion approximated one combined severity level and duration description; and (iii) arrived at an "Impairment Rating" by combining only the one type of attack thus categorized with the number of times per year in which that one type of attack occurred.' In performing this exercise the Tribunal necessarily left aside the attacks of vertigo which were not of that category of attack so estimated and reached an 'Impairment Rating' using only the frequency of the one type of attack.
It follows that the Tribunal erred in law. It is agreed by both parties that the matter must in these circumstances be remitted to the Tribunal for redetermination. When the Tribunal looks at the matter again it will, of course, be dealing with a different period, namely, the period up to the date of its then determination, a period different from that which is before us in the present matter.
I agree with the orders proposed by Davies and Spender JJ.
I certify that this and the preceding six (6) pages are a true copy of the reasons for judgment herein of the Honourable Justice Lockhart.
Associate Dated: 22 November 1995
Counsel for the appellant: M. Croyle
Solicitors for the appellant: Williams Winter & Higgs
Counsel for the respondent: J. Lenczner
Solicitor for the respondent: Australian Government Solicitor
Date of hearing: 3 October 1995
(heard in Melbourne)
Date of judgment: 22 November 1995
(delivered in Sydney)
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