O'Malley and Repatriation Commission (Veterans' entitlements) - [2018] AATA 878

O'Malley and Repatriation Commission (Veterans' entitlements) [2018] AATA 878 (12 April 2018)
Division:VETERANS' APPEALS DIVISION
File Number: 2016/1380
Re:Denise O'Malley
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:12 April 2018
Place:Brisbane

The decision under review is affirmed.
.....................[sgd]...................................................
Senior Member Theodore Tavoularis
CATCHWORDS
VETERANS’ ENTITLEMENTS – where Applicant is in receipt of the pension at 80% of the General Rate – where Applicant seeks to claim new conditions – adjustment disorder – where Applicant seeks an increase in the rate of pension – where Applicant seeks the pension at the Special Rate or the Intermediate Rate – whether Applicant’s adjustment disorder is related to service – where Statement of Principles in force at time of claim has been replaced – which Statement of Principles should be applied – where adjustment disorder is not related to service – “alone” test – whether Applicant prevented from undertaking work due to accepted conditions alone – whether ameliorating provisions apply – decision under review affirmed
PRACTICE AND PROCEDURE – where Applicant seeks to claim new conditions without lodging a formal claim first – post-traumatic stress disorder – major depressive disorder – whether Tribunal has jurisdiction to hear the newly claimed conditions – where original claim limited in scope – the Tribunal lacks jurisdiction to determine liability for newly claimed conditions
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), ss 25, 43
Veterans’ Entitlements Act 1986 (Cth), ss 14, 15, 22, 23, 24, 120, 120A, 135, 175, 196B
CASES
Brownlie and Repatriation Commission
[2017] AATA 2292
East v Repatriation Commission (1987) 16 FCR 517, 12 ALD 389, 74 ALR 518, 6 AAR 492

Gorton v Repatriation Commission
(2001) 63 ALD 723, FCA 286

Re Brearley and Repatriation Commission (No 2)
(1986) 9 ALD 291
Repatriation Commission v Gorton [2001] FCA 1194, 110 FCR 321, 65 ALD 609, 33 AAR 370

Repatriation Commission v Keeley
[2000] FCA 532, 98 FCR 108

Re Robertson and Repatriation Commission [1998] AATA 127, 50 ALD 668
Smith v Repatriation Commission
(2014) 220 FCR 452
SECONDARY MATERIALS
Guide to the Assessment of Rates of Veteran’s Pensions

Robin Creyke and Peter Sutherland, Veterans’ Entitlements and Military Compensation Law (3^rd ed, Federation Press, 2016)
REASONS FOR DECISION
Senior Member Theodore Tavoularis
12 April 2018
INTRODUCTION

Ms Denise O’Malley (“the Applicant”) served in the Royal Australian Navy (“RAN”) from 8 January 1985 to 31 March 2000.[1] For injuries arising out of this service, the Applicant is already in receipt of the disability pension at 80% of the General Rate.[2] I note from the outset that it is agreed that the Applicant’s service throughout that fifteen-year period has been accepted as “eligible service” for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”).[3]
[1] Exhibit 12, T-Documents, Veteran Community Details Report.
[2] Ibid.
[3] See e.g. Exhibit 8, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), [2.1].
Now, the Applicant seeks to propound that as a result of…

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: [2018] AATA 878
Decision Date: 12 April 2018

CaseChat Overview and Summary

This matter concerned an applicant who was in receipt of a pension at 80% of the General Rate and sought to claim new conditions, specifically adjustment disorder, with the aim of increasing their pension to the Special or Intermediate Rate. The applicant also sought to claim post-traumatic stress disorder (PTSD) and major depressive disorder. The Repatriation Commission was the respondent.

The primary legal issues before the Tribunal were whether the applicant's adjustment disorder was related to their service, which Statement of Principles (SoP) should be applied given a replacement had occurred, and whether the applicant was prevented from undertaking work due to accepted conditions alone, considering any ameliorating provisions. Additionally, the Tribunal had to determine if it possessed the jurisdiction to hear the newly claimed conditions of PTSD and major depressive disorder, given that the original claim was limited to adjustment disorder and no formal claim had been lodged for these additional conditions.

The Tribunal found that it lacked jurisdiction to determine liability for the newly claimed conditions of PTSD and major depressive disorder, as these had not been the subject of a formal claim and subsequent review by the Veterans Review Board, which is a prerequisite for the Tribunal's jurisdiction. Regarding the adjustment disorder, the Tribunal considered the medical evidence, including a report from Dr Riccardo Caniato, which suggested a diagnosis of recurrent chronic depression as primary and adjustment disorder as an alternative. The Tribunal proceeded on the basis that adjustment disorder was a diagnosis to be considered. However, it was not satisfied, to its reasonable satisfaction, that the adjustment disorder was related to the applicant's service. This conclusion was reached after assessing the claim under both the current and previous SoPs, finding that any pain experienced by the applicant preceding the onset of the adjustment disorder was primarily referable to a non-service-related cervical spine condition.

Consequently, the Tribunal affirmed the decision under review, finding that the applicant's claim for adjustment disorder could not succeed as it was not established as service-related. The Tribunal also determined that it did not have jurisdiction to consider the claims for PTSD and major depressive disorder.

Orders

Orders of the court

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Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

For similar reasons as those stated above for the case of “persistent pain”, I am not satisfied that the Applicant was in continuous or almost continuous pain that was related to her service in the three months preceding the clinical onset of her adjustment disorder. Rather, to the extent that she was in continuous or almost continuous pain, it is mostly referable to her cervical spine condition, which was found not to be service-related. Consequently, I find that the Applicant’s claim for adjustment disorder cannot succeed under this SoP, either.Conclusion: Adjustment disorder I have assessed the Applicant’s claim for adjustment disorder under both the relevant SoP that is presently in force (SoP No 24 of 2016), and the one that was in force at the time she lodged her claim (SoP No 38 of 2008). In each circumstance, the Applicant’s case falters on the question of whether the pain she was experiencing in the period preceding the clinical onset of her condition is related to her service. I have found that on the evidence presently before me, her pain only meets the thresholds required by the SoPs when the pain caused by her cervical spine condition acquired in late 2010 is taken into account. That condition has been found to not be service-related in a decision by the Respondent’s delegate. The Applicant did not agitate that point further. Consequently, I cannot find that the Applicant’s adjustment disorder is service-related. I will now turn to the other conditions the Applicant now seeks to agitate.PTSDDoes the Tribunal have jurisdiction to hear this claim? From the information presently before me, it is apparent that the Respondent’s delegates made one decision with respect to a mental health condition of the Applicant: to refuse liability for her adjustment disorder. While the merits of that decision were discussed above, the delegate was quite correct in making a decision on that point and only that point – the Applicant only submitted a claim form for “adjustment disorder with mixed anxiety & depressed mood”.[87][87] See Exhibit 12, T-Documents, p 191. While that may be the case, the Applicant has now sought to agitate an alternative claim to her adjustment disorder: she now argues that she may also have service-related PTSD.[88] The Respondent has taken this submission at its highest and sought to refute the contention that any PTSD the Applicant may suffer can be classified as service-related for the purposes of the Act.[89][88] See e.g. Exhibit 1, Applicant’s SFIC, p 2, [4]; Exhibit 3, p 1.[89] Exhibit 8, Respondent’s Facts and Contentions, [5.16]-[5.21]. Although the Respondent’s contentions are worthy of some consideration, this nevertheless raises an important issue in relation to the Tribunal’s jurisdiction. The Tribunal only has jurisdiction to hear a matter where a relevant enactment refers that class of matters to the Tribunal.[90] For claims such as the one at present, the Tribunal’s jurisdiction is conferred by s 175(1) of the Act. However, a prerequisite for the conferral of jurisdiction is that the VRB has reviewed a decision of the Respondent under s 135 of the Act.[91][90] See Administrative Appeals Tribunal Act 1975 (Cth), s 25(1).[91] Veterans’ Entitlements Act 1986 (Cth), s 175(1)(a).

Ratio Decidendi

Legal Principle Established

I will now address these issues.CONSIDERATIONAdjustment disorder with mixed anxiety and depressed moodDoes the Applicant suffer from this condition? The Respondent, both at the hearing and afterwards, has relied on the report of Dr Riccardo Caniato, a consultant psychiatrist, dated 30 January 2017.[31] Dr Caniato, in this report, diagnosed the Applicant thus:I consider [the Applicant] suffers recurrent Chronic Depression and this is the primary diagnosis. I consider that an alternative diagnosis of an Adjustment Disorder can be considered.[32][31] See Respondent’s Final Submissions dated 28 July 2017, [1]. For the report, see Exhibit 10, Medical Assessment of Dr Caniato dated 30 January 2017.[32] Exhibit 10, Medical Assessment of Dr Caniato dated 30 January 2017, p 10. The Respondent submits that the primary diagnosis is the only diagnosis made by Dr Caniato, and that the “alternative diagnosis” was less a diagnosis, but more an acknowledgment that “a qualified specialist could advance an alternative or differential diagnose [sic] of Adjustment Disorder”.[33][33] Respondent’s Final Submissions dated 28 July 2017, [3]. Conversely, the Applicant seemed to combine the two diagnoses and argued for a diagnosis of “Major/chronic Depressive Disorder with Anxiety and Adjustment Disorder”.[34] [34] Applicant’s Final Submissions received 15 August 2017. Neither of these stances are particularly helpful or true to the words of Dr Caniato. Rather, I consider that he considered that there were two diagnoses that run in the alternative: recurrent Chronic Depression (referred to by the Respondent as “Major Depressive Disorder”),[35] and Adjustment Disorder.[35] Respondent’s Final Submissions dated 28 July 2017, [4]. The former of these diagnoses does not relate to the Applicant’s claim as raised in her claim form submitted to the Respondent.[36] For reasons that will be discussed below, I lack jurisdiction to entertain that diagnosis here.[37] Given that even the doctor on whom the Respondent relies considers that a diagnosis of Adjustment Disorder is open on the medical evidence, I will proceed on the basis that such a diagnosis has been made.[36] See Exhibit 12, T-Documents, p 191.[37] In short compass, this diagnosis has not been subject to a s 135 claim, which is the prerequisite to the Tribunal exercising its jurisdiction in cases such as these. As the Applicant lodged a claim specifically for Adjustment Disorder, rather than more broadly for her mental health conditions, I cannot be satisfied that the Tribunal has jurisdiction to entertain this diagnosis.Is this condition related to the Applicant’s service? Assuming that the Applicant does suffer from adjustment disorder, or has suffered from this condition, I must then turn to the question of whether this condition is related to the Applicant’s service. It is important to note here that, under s 120(6) of the Act, the Applicant is not put to proof of her contentions.[38] Rather, the Tribunal must find, to its “reasonable satisfaction”,[39] that this condition is related to the Applicant’s service.[38] For the practical consequences of this, see e.g. East v Repatriation Commission (1987)16 FCR 517, 12 ALD 389, 74 ALR 518, 6 AAR 492.[39] See s 120(4) of the Act.Which SoP should be applied?